#### Matter of Revoking Letters of Administration upon the Estate of Augusto Madaloni, Deceased.

(Surrogate’s Court, Erie County,

March, 1913.)

Executors and administrators—letters of administration to brother revoked — letters of administration to Italian consul under treaty with United States containing “ Most Favored Nation ” clause.

Where a subject of the kingdom of Italy dies intestate in this state leaving him surviving a brother, a resident of this state, and his father, a citizen and resident of Italy, letters of administration granted to the brother will be revoked and letters issued to the Italian consul under the Italian treaty with the United States, containing the “ Most Favored Nation ” clause.

Motion for the revocation of letters of administration.

William H. Gorman (Thomas A. Sullivan, of counsel), for administrator, Lonigi Madaloni.

Horace Lanza, for Italian consul.

Hart, S.

Letters of administration in the above estate were granted to Lonigi Madaloni, a resident of this county, and a brother of decedent, upon *ex parte*application. The representative of the Italian consul asks revocation of the letters, claiming a prior right thereto, decedent’s father being a citizen and resident of Italy, which application is resisted, with submission of briefs and references to innumerable decisions and treaties.

The treaty with the Argentine Republic, which contained the clause relating to consuls, consular agents, vice-consuls, 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,” left a possible right of discretion with the surrogate to determine priority of right to administration. .

In Rocca v. Thompson, 223 U. S. 317, the right to local administration was reserved to the public administrator as against the Italian consul, affirming decision of the Supreme Court of California, In the opinion of Mr. *654Justice Day reference is made to the treaty between the United States and Sweden proclaimed March 20, 191)1, but the decision seems to be based on a construction of the Argentine treaty which is not nearly so broad in scope or extension of powers. The treaty of 1878 between the United States and Italy contemplates no power to administer estates vested in the consuls. The treaty with Peru of 1887 provides that in the absence of the legal heirs or representatives the consuls or vice-consuls of either party shall be *ex-officio*the executors or administrators of the citizens of their nations who may die within their consular jurisdiction. The treaty between the United States and Sweden of March 20, 1912 , gives to the consuls and their subsidiaries the authority “ to take charge of the property left by the deceased for the benefit of his lawful heirs and creditors,” and, moreover, *have the right to he appointed administrator of such estate.*Under the Italian treaty containing the *“*Most Favored Matron ” clause, the right to administer must be accorded.

I realize this question has been presented to other Surrogates’ Courts in this state, particularly in Matter of Baglieri, N. Y. L. J., June 11, 1912, and Matter of Lombardi, 78 Misc. Rep. 689.

On account of the frequency of applications in this court wherein the consuls of the various countries are involved, it would seem proper and appropriate that some comment or explanation is made other than merely revoking the letters heretofore issued by formal decree. I am of the opinion, however, that the extended powers derived from the Swedish treaty will engender serious dispute ■ among resident next of kin and the authorized representatives of the various countries, anct that the best pecuniary results will not always accrue to the non-residents entitled to share in these estates.

In the belief, however, that I have no discretion in the premises, a decree may be submitted revoking the letters of administration heretofore granted to Lonigi Madaloni, and the issuing of letters to the Italian consular agent.

Letters of administration revoked.