Majority
Headnote
1. Executors and Administrators (§ 24*)—Right to Administer Estate—Carmine D’Adamo, an Italian subject, died in Jefferson county December 9, 1912, intestate, leaving a widow and one child, his only next of kin, residing in Italy. His death was accidental. He left other relatives, one of whom, the petitioner, Giovanni D’Adamo, resides in Jefferson county, but who is not a citizen of the United States.
The deceased left nominal assets only. It is not claimed that he left any creditors in this state. It is claimed that upon his death a cause of action arose in favor of his administrator against the New York Central & Hudson River Railroad Company for negligently causing the death of decedent. On the 12th of December, 1912, letters of administration were issued to the Italian consul upon his application. On the 18th of December, 1912, Giovanni D’Adamo filed his petition, praying for revocation of the letters issued to the Italian consul, and praying that letters be granted to himself and Fred W. Mayhew, who is the treasurer of Jefferson county. A citation was issued to the Italian consul to show cause why his letters should not be revoked. Upon the return day he appeared by counsel and claimed that by virtue of the treaty between the United States government and the kingdom of Italy, he, being the Italian consul for the district
[1] I have examined with care the elaborate briefs submitted and the authorities cited by counsel. It seems to me that Rocca v. Thompson, 223 U. S. 317 ; 32 Sup. Ct. 207 , 56 L. Ed. 453 , the case chiefly relied upon by petitioner’s counsel, is not in point, because the treaty with Sweden, which is invoked here by the respondent under the most-favored nation clause of the treaty with Italy, was not under consideration as the treaty relied upon by the Italian consul in that case. There the Argentine treaty was under consideration, and it was held that the language used did not give the consul right to be appointed administrator, but only “the right to intervene in the possession, administration, and judicial liquidation of the estate of the deceased for the benefit of the creditors and legal heirs,” and it was held that this language did not authorize or provide for the appointment of a consular officer as administrator of the estate of any decedent mentioned therein. And Mr. Justice Day jointed out in the opinion that, had it been the intention of the high contracting parties to commit the administration of estate of citizens of one country dying in another, exclusively to the consul of the foreign nation, it would have been very easy to have declared that purpose (in the Argentine treaty) in unmistakable terms, and then cites the language employed in the treaty with Sweden as an instance when that was the purpose, and the language used, “And moreover have the right to be appointed administrator of such estates,” was unmistakable in meaning. Since the decision in Rocca v. Thompson, several decisions in this state have been rendered in harmony with these views, viz.: In re Baglieri et al., 137 N. Y. Supp. 175 ; In re Madaloni, 79 Misc. Rep. 653 , 141 N. Y. Supp. 323 ; In re Ricardo, 140 N. Y. Supp. 606 (Herkimer County); In re Lombardi (Costello), 138 N. Y. Supp. 1007 (Schenectady County).
[2] It follows, therefore, that the application must be denied. If it appears that there are creditors of the decedent in this state, the administrator should give a proper bond.
Cases cited
- Rocca v. Thompson 223 U. S. 317 p. 1104
- In re Madaloni's Estate 79 Misc. Rep. 653 p. 1104