Opinion
May 3, 1911.
Horace O. Lanza and Gino C. Speranza, for the appellant.
O.E. Black, for the respondent.
The decree should be reversed and letters issued to the appellant upon his giving a bond to be approved by the surrogate.
The deceased died as the result of an accident upon the Pennsylvania Railroad Company. His age does not appear. He left no will, no widow or children, but a father, mother and one brother residing in Italy, and one brother living in Olean, Cattaraugus county, his only near relatives. He left little property, less than fifty dollars in value, and there was the claim against the railroad company for causing his death.
The respondent was a creditor of deceased, and had a claim against his estate of forty-two dollars and sixty cents. He was a resident of this State, and made a petition for letters as such creditor. The deceased was a subject of the kingdom of Italy, and a citation was issued by the surrogate and served upon the appellant, the Italian consul, residing in Buffalo, to show cause why letters should not be issued to the petitioner. The appellant appeared on the return of the citation and asked that letters be issued to him in preference to the petitioner. The facts were agreed upon as hereinbefore stated, and the decree appealed from was made after argument of counsel, and an opinion written by the surrogate. ( 69 Misc. Rep. 514.) The appellant did not and does not ask to be relieved from giving a bond as in case of a resident administrator.
The appellant bases his right to administration upon the treaty between the United States and Italy. Article 17 of the treaty of 1878 provides that "The respective Consuls General, Consuls * * * 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."
Under this article the appellant claims he is entitled to all the rights, privileges and prerogatives extended to the consuls of the Argentine republic under the treaty of 1853, between that country and the United States. Article 9 of the latter treaty provides, viz.: "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 Consul 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."
These treaties are the supreme law of the land, and the judges of every State are bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (U.S. Const. art. 6, § 2.)
The only question here involved is, therefore, the construction of these words, "the right to intervene," etc., in article 9 of the Argentine treaty.
There have been several decisions by surrogates in this State upon this question, but none by any appellate court. It is, therefore, very proper that this court should indicate its views in the present case.
In 1900, SILKMAN, surrogate of Westchester county, held without any extended discussion, that this clause gave the Italian consul prior right to administration. ( Matter of Fattosini, 33 Misc Rep. 18.)
In 1901, THOMAS, surrogate of New York county, took occasion to disagree with SILKMAN, S., in the Fattosini case and to hold that this clause did not give an Italian consul the prior right to administration. This discussion was more or less obiter, however, because he granted administration to the consul in that case on other grounds. ( Matter of Logiorato, 34 Misc. Rep. 31.)
In 1902, SILKMAN, S., again considered the question, and in an exhaustive opinion upheld his former decision, discussed the decision of THOMAS, S., in the Logiorato case, and again held the consul had the prior right to administration. ( Matter of Lobrasciano, 38 Misc. Rep. 415.)
I think this opinion should be followed by us, because the reasoning is sound and unanswerable. I do not need to quote from it here or to reiterate in my own language the argument there made. It is in the reports and may be read there.
In 1907, VANDERZEE, surrogate of Albany county, followed SILKMAN, S., in the Lobrasciano case, and granted administration to the consul in preference to a brother and creditor of the deceased, saying this course had been the practice of his court for many years, and had been adopted by many jurisdictions in this State and in Massachusetts, citing McEvoy v. Wyman ( 191 Mass. 276). ( Matter of Silvetti, 66 Misc. Rep. 394.)
In the McEvoy case, above referred to, and in Matter of Arduint (9 Ohio N.P. [N.S.] 369) the views of SILKMAN, S., were approved and followed.
DAVIE, S., in this case adopts the reasoning of THOMAS, S.
All concurred.
Decree reversed, with costs to appellant payable out of the estate, and matter remitted to the surrogate to be disposed of in accordance with opinion.