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country, the property of a deceased foreigner is entitled to the same protection as if it were the property of a member of the nation, under the same circumstances.
This provision is in substance from the treaty between Great Britain and
Colombia, Feb. 16, 1866, Accounts and Papers, 1867, vol. LXXIV.
Nicaragua, Feb. 11, 1860, Id., 1860, vol. LXVIII. A number of French and American treaties, cited under the other articles, recognize the same principle.
Death of persons who are foreigners, or not domiciled.
338. In case of the death, within the territory of a nation, of any person not there domiciled, or of a foreigner of whatever domicil, or in case, on the death of such person or foreigner, without the territory of the nation, his body or movables are brought within its territory, the local authorities must notify the fact to the consul of the nation in which the deceased was domiciled and resident, within the district where the death or arrival takes place; or, if there be no such consul there, then to the nearest consul of such nation.'
If the deceased was a foreigner domiciled within the nation, then such notice must be given to the consul of the nation of which he was a member.'
If the consul first has knowledge of such a fact, he must notify it to the local authorities.
1 This article is suggested by the consular conventions between France and Brazil, December 10, 1860, Art. VII., 8 De Clercq, 153, (interpreted by declaration of July 21, 1866, 9 De Clercq, 600 ;) between France and Portugal, July 11, 1866, Art. VIII., 9 De Clercq, 582 ; the convention between France and Austria, for the regulation of successions, December 11, 1866, Art. III., 9 De Clercq, 675; and the convention between the United States and Italy, February 8, 1868, Art. XVI., 15 U. 8. Stat. at L., (Tr.,) 185. And brief provisions to somewhat the same effect as this and the following article, are contained in the treaty of friendship, commerce and navigation between France and Russia, June 14, 1857, Art. XX., 7 De Clercq, 278. * If the domicil was foreign, the notice should be given to the consul of the nation of such domicil; because the domicil will be the place of principal administration.
If the domicil be within the nation where the death occurred, the no. tice should be given to the consul of the nation of which the decedent was a member, because his heirs and next of kin are likely to be there, if not present at the place of domicil.
Consul may send home assets of seamen, &c.
339. If the deceased was a seaman on a private ship, or other inmate thereof except a passenger,' and his private property within the nation, including arrears of pay or other moneys due him, do not exceed five hundred dollars, all the property shall be delivered or paid to the consul, for the benefit of the persons interested.
This and the following provisions are designed to give the consul, in the absence of foreign heirs, &c., the right to administer in the local courts, according to the ordinary precedure, except in the cases of sailors, &c., where the assets are trifling in amount, in which cases the consul need not institute an administration, but may send the property home at once.
The existing rules are quite diverse. The consular convention between France and Portugal, July 11, 1866, Art. X., (9 De Clercq, 582,) provides that the consuls shall have exclusive charge of the inventory and other administrative acts for the preservation of the movable effects of every kind left by men of the sea and by passengers of their nation who die on land, or on board the ships of their country, whether on the voyage or at the port of destination.
By the English consular regulations, if a seaman dies on a voyage of a British vessel not homeward bound, the consul of a port at which it touches may collect the wages and take the other effects, to facilitate the settlement of the estate. Instructions to Consuls, 1856, p. 35, § 91.
This applies to all persons employed on merchant vessels, except the master. Id., p. 37, $ 99.
It is niade the duty of consuls also to claim and receive, if possible, the effects of British seamen dying within the consulate, in whatever service they may have been engaged.
It is understood that an arrangement has recently been made between the North German Confederation and England, according to which the effects of a German sailor dying in a British ship, including the balance of his pay, should the entire value not exceed fifty pounds, will be deliv. ered to the North German consul in London, while the property of British sailors dying on North German vessels will be placed in the hands of the English consul of the district in which the crew is discharged.
· There seems to be propriety in extending this provision to all cases mentioned in Article 337, where the assets are less than the specified sum, instead of restricting it to seamen.
By the treaty between the United States and The Two Sicilies, Oct. 1, 1855, Art. VII., (11 U. 8. Stat. at L., 639.) the consul is entitled to receive the effects of his countrymen without distinction, if formal opposition is not made by creditors, or, being made, is legally overruled.
Consul entitled to administer.
340. In cases other than those provided for in the last article, if the deceased leaves no executor, or person interested by succession or will, who, being competent, claims to administer, within the time limited by the law of the place, the consul, in preference to all other persons, shall be authorized by the local authorities to administer the assets, proceeding according to the local law,' but subject to the provisions of Division Second, on PRIVATE INTERNATIONAL LAW.'
} This is substantially the rule stated in the treaty between the United States and the Argentine Confederation, July 27, 1853, Art. IX., (10 U. S. Stat. at L., 1009,) which provides, that if a citizen of one nation die intestate in the other, the consul of his nation may intervene in the possession, administration, and judicial liquidation of the estate, conformably to the laws of the country, for the benefit of creditors and heirs.
So by the consular convention between France and Brazil, December 10, 1860, Art. VII., (8 De Clercq, 153,) the right of administration upon the movables of a foreigner not domiciled in the country where the movables are, belongs to the consul of the nation to which the deceased appertained.
The administration and settlement of the succession of a Frenchman deceased in Brazil, is, according to that treaty, to be regulated in the following manner :
When a Frenchman deceased in Brazil leaves only Brazilian heirs, or when, together with French heirs who have attained majority, and who are present and capable, he leaves Brazilian heirs, minors, absent or incapable, the French consul shall not intervene.
When there shall be among the heirs of a Frenchman deceased in Brazil one or more French minors, absent or incapable, the consul shall have exclusive administration of the succession, if there is neither a widow of Brazilian origin, nor a Brazilian heir the head of a family, nor testamentary executor, nor Brazilian heirs who are minors, absent or incapable.
If there are at the same time one or more French heirs who are ininors, absent or incapable, then, whether there be a widow of Brazilian origin, or a Brazilian heir the head of a family, or testamentary executor, or one or more Brazilian heirs who are minors, absent or incapable, the French consul shall administer the succession conjointly with the Brazilian widow, or the chief of family, or the testamentary executor, or the representative of the Brazilian heirs.
It is understood that minor heirs, born in Brazil of French parents, are to be treated as having the status of their father until their majority. It is equally understood that légataires universels are treated as heirs.
Reciprocally, the succession of a Brazilian deceased in France will be administered and settled after the same rule, so far as not contrary to French law.
Other provisions regulate, in detail, the duties of a consular officer in carrying out the administration of these estates.
The treaty between the United States and Peru, July 26, 1851, Art. XXXIX., (10 U. S. Stat. at L., 945,) makes the consuls, ex officio, the esecutors or administrators of their countrymen, in the absence of the legal heirs or representatives, but directs that if the deceased was engaged in trade, the assets shall be held twelve months, to allow creditors to present their claims.
By the treaty between the United States and Nicaragua, June 21, 1867, Art. VIII., (15 U.S. Stat. at L., (Tr.,) 59,) the minister or consul may nominate curators to take charge of the property of an intestate, so far as the local law will permit. See, also, the treaty with Paraguay, February 4, 1859, Art. X., 12 U. 8. Stat, at L., 1096.
The system adopted by the recent French treaties, (consular convention between France and Portugal, July 11, 1866, Art. VIII., (De Clercq, vol. 9, p. 582 ;) convention between France and Austria, for the regulation of successions, December 11, 1866, Art. III., (De Clercq, vol. 9, p. 675 ;) consular convention between France and Brazil, December 10, 1860, Art. VII., 8 De Clercq, 153,) involves a regulation of the proceedings in great detail.
The provisions of these treaties may be indicated together, as follows: The consul is authorized and required:
1. To seal up all the effects, movables and papers of the deceased, having given forty eight-hours' notice thereof to the competent local authorities, who are entitled to be present, if they so determine, to add their own seal to that which shall be affixed by the consal; and if this be done, the double seals shall not be broken except by the concurrence of both.
Whenever the local authorities are first informed of the death, and when according to the law of the country, they are bound to seal the effects of the deceased, they shall invite the consular officer to unite with them in this act.
In case an immediate sealing seems absolutely necessary, but this oper. ation, by reason of the distance or other causes, cannot be done by both authorities in common, the local authorities or the consular officer, as the case may be, may affix the seal, without awaiting the arrival of the other officer, and without prejudice to his right of subsequently affixing his seal.
2. To draw up, also, in presence of the competent local authorities, if they choose to be present, after such notice, an inventory of all the goods and chattels which were possessed by the decedent.
3. To cause the sale, by public auction, of all the movables constituting the inheritance of the decedent which are perishable, or subject to depreriation, and also of merchandise intended for sale, for the sale of which a favorable opportunity offers, giving first timely notice to the local authorities, to the end that the sale may be made in the form prescribed, and by competent agencies, according to the law of the country.
Where the local authorities cause such sale, they must give notice to the consular officer to be present.
4. To deposit in safe keeping the effects and valuables inventoried, to preserve the account of the debts which they collect, as well as the proceeds of the sales which they receive, in the consular office, or in some place of commercial deposit affording proper security.
In either case, such deposit must be made by agreement of the local authorities, called in to concur in the previous proceedings, if, by reason of the provision of the next subdivision, the inbabitants of the country or the members of a third nation claim to be interested in the estate, or, if required by the local authorities, for the security of any charges authorized by the laws of the country.
5. To announce the death, and to summon, by means of one or more of the public journals within their consular jurisdiction, and also, if necessary, journals of the country of the deceased, the creditors of the estate to present their respective claims, duly authenticated, within the time fised by the laws of the respective countries.
If creditors of the estate present themselves, the payment of their de. mands ought to be accomplished in the space of fifteen days after the making of the inventory, if there be sufficient means ready, and applicable thereto; and if not, as soon as necessary funds can be realized by the most convenient means; or finally, within a day fixed by agreement between the consular officer and the majority of those interested.
6. In case of the insufficiency of the assets to satisfy the full payment of the debts proved, all the documents, effects, and other valuables belonging to the estate must, on the demand of the creditors, be surrendered to the competent judicial authorities of the place, or to a court of bankruptcy, according to the law of the country; in which case, the consular officer remains charged with representing the members and domiciled residents of his nation interested in the estate, who may be absent, minors, or otherwise incapable.
In any case, the consular officer cannot deliver the assets or their proceeds to the heirs or next of kin, or the beneficiaries under the will, until after having satisfied all the debts which the decedent may have contracted in the country.