#### In the Matter of the Estate of Frank Scutella, Deceased.

(Surrogate’s Court, Cattaraugus County,

November, 1910.)

Consuls — Appearance in litigation affecting foreign interests — Subjects of Italy.

Executors and administrators — Appointments and qualifications of personal representatives, resignations and removals — Right to administer — Estates of aliens — Italian subjects.

Under the treaties with the Kingdom of Ttaly its consular officers enjoy the rights, prerogatives, immunities and privileges ac*515corded to the “ most favored nation ” in respect to the administration of the estates of Italian subjects who may die in the United States and who have no known heirs or testamentary executors designated by them.

In respect to such matters it- is commonly understood that, under the provisions of the treaty between the United States and the Argentine Republic, the last named republic for such purpose should be regarded as the most favored nation.

Article IX of the treaty between the United States and the Argentine Republic, which provides that if any citizen of either party shall die without will or testament in any territory of the other the consul general or consul of the nation to which the deceased belongs, or his representative in his absence, shall have the right “ to intervene in the possession, administration and judicial liquidation of the estate of the deee.ased, conformably with the laws of the country, for the benefit of the creditors and legal heirs,” is to he 'construed as entitling the proper consular officer to notice

of all judicial proceedings relating to the effects of the deceased, and the further right to intervene or become a party to such proceedings as the representative of foreign creditors, heirs and next of kin, but not as affording suoli consular officer the absolute and exclusive right to letters of administration without bond or security.

Application for letters of administration upon the estate qf an intestate.

Nevins & Black, for petitioner.

Lanza & Miceli, for Italian Consul.

Davie, S.

Soutella died at Olean, Cattaraugus county, July. 15, 1910. At the time of his death he was a subject of the Kingdom of Italy, where he left him surviving next of kin, hut having no heir at law or next of kin in the United States. A petition for administration upon his estate is filed by a resident creditor of the decedent which alleges that decedent died intestate; that he owned no real estate and that his personal effects exceed the sum of fifty dollars, and that no right of action exists, granted by special provision of law, *“*except against the Pennsylvania Kailroad Company for negligently killing the decedent.” The evident necessity for administration was to procure the requisite authority for prosecuting such claim. A citation was duly issued, directed *516to and properly served upon the Italian Consul, who appears in this proceeding, objects to the appointment of the petitioner and asks that administration be’ granted to him without filing any bond, basing his right to administration upon the provisions of the treaty between the United States and Italy, which is more particularly hereinafter referred to. Hence the determination of this controversy involves the necessity of carefully considering the phraseology of the treaty and the evident purposes sought to be subserved thereby. The portions of the treaty bearing upon this proposition are articles IX, XVI and XVII.

Article IX is as follows: “ Consuls General, Consuls, Vice Consuls and Consular Agents may have recourse to the authorities of the respective countries within their district, whether federal or local, judicial or executive, for the purpose of complaining of any infraction of the treaties or conventions existing between the United States and Italy, as also in order to defend the rights and interests of their countrymen. If the complaint should not be satisfactorily redressed the consular officers aforesaid, in the.absence of a diplomatic agent of their country, may apply directly to the government of the country where they reside.”

Article XVI is as follows: “ In case of the death of a citizen of the United States in Italy, or an Italian citizen in the United States, who has no known heir, or testamentary executor designated by him, the competent local authorities shall give notice of the fact to the Consuls or Consular Agents of the nation to which the decedent belonged to the end that information may be at once transmitted to the parties interested.”

Article XVII is as follows: “ The respective Consuls General, Consuls, Vice Consuls and Consular Agents as likewise the Consular Chancellors, Secretaries, Clerks, or Attachees, shall enjoy in both countries all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favored nation.”

It is commonly understood that, under the provisions of the treaty between the United States and the Argentine Re*517public, tbe last named Republic, for tbe purposes under consideration, is regarded as the “ most favored nation.”

Article IX of that treaty is as follows: *“*If any citizen of either of the two contracting parties shall die without will or testament, in any of the territories of the other, the Consul General or Consul of the nation to which the deceased belonged, or the representatives of such Oonsul General or Consul in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.”

Accordingly, this controversy must be determined in the same manner as if article IX of the Argentine treaty had been incorporated in and constituted a part of the treaty between the United States and Italy. What then is the actual meaning and legal effect and interpretation of article IX above quoted? When such meaning is ascertained it becomes a part of the supreme law of the land.

Article II of the Constitution of the United States provides that the President shall have the power, by and with the advice of the Senate, to malee treaties, provided two-thirds of the senators present concur. Article VI of the Constitution declares the legal status and effect of treaties when so consummated in the following terms: “ This constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

There can be no controversy or misunderstanding in relation to the actual status of *treaty law*nor in regard to the general rules applicable to the construction of the same. “ In construing the language of treaties the courts will adopt the same general rules which are applicable in the construction of statutes, contracts and written instruments generally in order to carry out the purpose and intention of the makers.” 28 Am. & Eng. Ency. of Law, 488.

*518“As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization and as their main object is not only to avoid war and secure lasting peace, but to promote a friendly feeling, between the people of the two countries, they should be interpreted in the broad and liberal spirit which is calculated to make for the existence of a perpetual amity so far as can be done by one without the sacrifice of individual rights or the principles of personal liberty which lie at the foundation of jurisprudence.” 28 Am. & Eng. Ency. of Law, 490. Treaties are to be liberally construed. Shanks v. Dupont, 3 Pet. 242.

When treaty iDrovisions conflict with the laws or 'Constitution of any State, the former must prevail. Matter of Parrott, 1 Fed. Rep. 481; Hausenstein v. Layman, 100 U. S. 483; United States v. Forty-three Gallons of Whiskey, 93 id. 188, 197; Head Money Cases, 112 id. 580, 598; Tellefsan v. Fee, 168 Mass. 188.

These authorities do not indicate that any different rules of construction prevail when considering international treaties than in considering and construing contracts and legislative enactments. They are to be reasonably construed, not by ascertaining the technical meaning of any segregated word, phrase or sentence, but from the entire provision and the evident purposes sought to be subserved thereby. What, then, is the effect to be given to the phraseology of the Argentine treaty: “ The Consul General, etc., shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased conformably with the laws of the country for the benefit of the creditors and legal heirs ? ”

The best method of comprehending the scope of any legislative enactment or treaty provision is a correct understanding of the conditions prompting the same. What were the conditions, existing or anticipated, which led to the incorporation of the provision quoted in the treaty with the Argentine Pepublic? Evidently the knowledge that the subjects of one country, while temporarily sojourning in the other, might die there possessed of effects which, without au*519thoritative supervision, might come into the possession of and be dissipated by irresponsible persons and thereby lost to those legally entitled to the same. Ro other incentive or purpose can be suggested for such treaty provision. To effectuate such purpose it became necessary to designate some competent and responsible representative to protect the rights of foreign creditors, heirs and next of kin — a representative who should be entitled to notice of all judicial proceedings relating to such effects, and possess the further right to intervene, or become a party to such proceedings as the representative of such absentees. Such a method of procedure would secure to the subjects of the Argentine Republic precisely the same rights and protection in this particular as were extended to our own citizens.’ What more could be expected or desired? It certainly was not the design or intention of the treaty-making powers that the subjects of one country should, through the instrumentality of the treaty provisions, derive superior right and advantages over the citizens of the other nation, but that they should be placed in the same or an equal position for the protection and distribution of the assets in which they were interested. Such construction would give to all parts of the provision quoted its natural and reasonable effect; it would not pervert the meaning of the term *“*intervene ” which signifies “ to come in ” or *“*to come between ” (Webster’s Diet.) ; it would be strictly in accordance with the legal significance of the term “ intervene,” for the right to’ intervene in judicial proceedings is a right to be heard with others who may be similarly situated. Matter of Logiorato, *34*Misc. Rep. 31.

The phraseology *“*conformably with the laws of the country ” is exceedingly significant in this connection. In place of indicating a design to abrogate or supersede local legislation regarding administration, it shows a purpose and design of extending to the estate of the alien who had died within the jurisdiction of our local courts the same protec-tion as was provided for the administration of the estates of our own citizens. Ror do the words *“*intervene in possession ” detract to any extent from the force of this conclusion ; because it would be both necessary and proper for the foreign representative to intervene in the possession of such *520portion of the assets as were determined through the instrumentality of administration to belong to the absentees so represented.

If the construction contended for by the Italian Consul were to prevail, disastrous results to our own citizens might ensue; for assuming that his right to administer is absolute and exclusive, that letters are issued to him without bond or security, and the assets all turned over to him and he removes or sends the same outside the jurisdiction of our courts, what possible remedy or redress would a resident creditor have ?

A question similar to the one under consideration was passed upon by the Supreme Court of the State of Louisiana, in 1854, in Succession of Charles' Thompson, 9 La. Ann. 96. In that case letters of administration had been granted, pursuant to the laws of the State of Louisiana, of the decedent’s effects to the official curator. The petitioner was the vice-consul of the Kingdom of Norway and Sweden; and, in his capacity as such consul, he claimed the right to take succession out of the hands of the administrator so appointed. He based such alleged right upon the general laws of nations, the laws of the Hnited States and, especially, upon the provisions of the treaty entered into between the Hnited States and the Kingdom of Norway and Sweden. The court in disposing of such controversy said: “ The rights claimed are incompatible with the sovereignty of the State, whose jurisdiction extends over the property of foreigners as well as citizens while within its limits; the disposition of the estates of foreigners has been made the subject of special legislation and no treaty or law of the Hnited States exists, which, as paramount law, confers any such right as is claimed by the petitioner; nor are we aware of any principle of the law of nations which would entitle the petitioner to call into question the authority of our laws on that subject.”

In the English courts, the same question was considered in Aspinwall v. The Queen’s Proctor, 2 Curt. 241, 244. In that case an application was made to the Prerogative Court of Canterbury by an American Consul for administration upon the estate of an American who had died while *521temporarily sojourning in England, leaving property within the territorial jurisdiction of the English courts. The application was denied and substantially the same conclusion reached as in the Louisiana case.

If it had been the design, in formulating the treaty provisions, to give the Italian Consul or the other officials designated the first and exclusive right to administer, it would have been entirely practicable to have incorporated in the treaty a concise and unambiguous provision to that effect. In fact, in the treaty between the United States and Peru precisely that was done. That treaty provides that “ In the absence of legal heirs or representatives the Consul or Vice Consul of either party shall *ex officio*be the executor or administrator of the citizens of their nation who may die within their consular jurisdiction.”

In this matter, however, the Italian Consul does not predicate his demand upon the provisions of the Peruvian treaty, but, as already indicated, upon the provisions of the treaty with the Argentine Republic, regarding that nation as the “ most favored nation ” within the purview of the meaning of that expression as used in the treaty between the United States and Italy.

The conclusions reached in this matter are not based upon the same grounds nor prompted by the same considerations as those in the Louisiana case, viz., unwillingness to tolerate any infringement upon individual State rights, but upon the broader ground of the reasonable construction of the phraseology of the provisions of the treaty under consideration, having in view the purposes for which such treaty was made. Por have I overlooked in the consideration of this matter the elaborate and lengthy opinion of the learned .surrogate of Westchester county in Matter of Lobrasciano, 38 Misc. Pep. 415; but I am constrained to adopt the reasoning in Matter of Logiorato, 34 id. 31.

A decree will accordingly be entered, granting administration to the petitioner and directing the issuing of limited letters to him and denying the application of the Italian Consul for appointment.

Decreed accordingly.