Mr. Abbott to Mr.
the United States,
December 12, 1889.
(Received January 13, 1890.)
Sir: The consul at Colon, General Vifquain, has
requested that the friendly offices of this legation may be employed in his
behalf upon the following state of facts:
Mrs. S. H. Smith, who, I presume, was a citizen of the United States, and who
died in Colon, left, inter alia, two tenement houses,
situated in Colon upon land leased of the Panama Railroad Company. The
consul, acting under section 10, article 3, of the consular convention of
1850, undertook to settle her estate. In pursuance thereof, he sold the two
houses at auction in July, 1888, and applied the proceeds in settlement of
On October 25, 1889, the local authorities intervened, and the local judge
ordered all claims against the estate to be presented before his court and
the houses to be sold in 180 days from that date. He, furthermore, put a
receiver in possession of the houses and dispossessed the purchaser at
auction sale, who was an American citizen. The details of the whole matter
may be found in the letter of the consul to me, dated November 7, 1889, to
which I refer, and a copy of which I inclose, excepting only the inclosures
therein referred to, which are, I presume, on the files of the
The request of the consul is that I apply to this Government to cause a
committee to be appointed to examine the claims he has paid, and, on their
report that they are correct, to legalize all his doings in the
It seems plain that, if the consul has acted within the law, this Government
should not be asked to legalize his doings, but rather a demand as of right
should be made for the cessation of all interference by the local
But, if the consul acted contrary to law or exceeded his authority, then the
good offices of this legation may well be employed in his behalf.
It becomes, then, important to decide, before acting in the matter: (1)
Whether a consul of the United States has the right to take possession of,
inventory, and sell the personal property of a citizen of his country dying
in Colombia, under and by virtue of the provisions of section 10, article 3,
of the consular convention; and (2) whether the houses in question are real
or personal property.
I do not deem myself justified in asking this Government to legalize Mr.
Vifquain’s acts, without instructions to that effect, as I should thereby
admit that our consuls have no rights under the said section of the
convention, an admission which might embarrass the Department in case it
should hold that our consuls are entitled to settle [Page 232] estates in such cases. On the other hand, a
remonstrance, on the ground of an infringement of treaty stipulations, would
as seriously embarrass the Department in case it should hold that under the
present laws of Colombia our consuls are not entitled to act in such
I have therefore concluded to submit the matter to the Department for
instructions, with as full an explanation of the attitude of this Government
and the local laws as I have been able to procure; and I shall await a reply
by cablegram, or by mail, as may be deemed necessary.
First. The question is as to a consul’s right to settle estates of his
countrymen dying here.
This right depends upon the provisions of article 3, section 10, of the
convention, which, after defining what a consul may do in such cases,
provides as follows:
But consuls shall not discharge these functions in those states whose
peculiar legislation may not allow it.
When the convention was made there were no states in Colombia. The country
was a centralized Republic, and there was no general law defining the rights
of consuls in such cases. The estates of deceased American citizens were
settled as were those of Colombians until this convention came into
Some years later, about 1858, New Granada became the United States of
Colombia, in which were erected a number of partially independent States,
which from January 1, 1860, made their own laws upon these and many other
Under date December 14, 1870, Mr. Fish, Secretary of State, in his No. 31 to
Mr. Hurlburt, then minister here, directed him to remonstrate against the
course of the local authorities in Panama in interfering with the
administration by the then consul at that city upon the estate of one J. J.
The minister’s remonstrance can not be found among the archives, but the long
reply of the Government thereto, under date of April 28, 1871, after stating
that information had been asked from the Panama authorities, goes on to
claim that the whole matter must depend upon the law of that State; that the
fact that that State was erected after the making of the convention does not
imply, as “insinuated” by our minister in his remonstrance, that its laws
can not deprive our consuls of the rights named therein; that Colombia
recognizes the right of newly erected States in the United States to make
prohibitory laws in this respect, as well as the right of the States
existing in 1850, and claims reciprocity; that, “accepted this principle (of
reciprocity), it is clear that the word ‘states,’ which is made use of in
the convention, does not refer solely to those of North America, even
although Colombia (then New Granada) was not publicly divided in sections of
that name, and even although this part of legislation was not conceded to
them.” Then follows an argument upon the tense of the word “permitir,” i. e., “allow,” and the conclusion that “it appears
beyond doubt that it was sought to express the desire of the contracting
parties to leave to the states or sections of both Republics complete
liberty to permit consuls to exercise the powers referred to or to deprive
them of such powers.” The note also states that the laws of Panama then
existing conferred upon the courts alone the settlement of estates, be the
deceased a foreigner or a native.
I can find no further correspondence in this case, and so do not know the
result, and this is the only case of which I have found any trace. I mention
it as possibly throwing some light upon the probable attitude of Colombia
In 1885 the United States of Colombia became the Republic of Colombia, the
States being degraded to departments, and deprived of the power to
legislate, except upon minor matters. The national law in force in the whole
Republic since July 22, 1887, provides that, if a deceased person shall
leave foreign heirs, the consul of the nation of these heirs shall have the
right to name the “curador,” who shall have the custody and administration
of the property.
I inclose a copy and translation of a written statement of a Bogota lawyer,
in which this law appears, together with its effect, leaving out the
question of public treaties.
I have consulted two lawyers who stand high in the profession, and they
inform me that a “curador” is more or less what we call an administrator;
that the estates of all foreigners are, outside of treaty stipulations, to
be settled in the manner indicated in said law; and that foreign consuls
have no other rights than that of nominating the “curador.”
Second. The second question is as to the character of the houses, whether
they are real or personal estate. If they are real estate, then the consul
has exceeded his authority.
On this point I inclose a copy and translation of the opinion of Messrs.
Escobar & Gutierrez, lawyers, in relation to the same, in which the law
in relation to the matter appears.
I have written Consul Vifquain to forward to the Department at once a
statement of the terms of the lease under which the houses are permitted to
stand upon the land of the railroad company.
I will add that the first law in New Granada upon the rights of consuls in
such cases was passed, substantially, in the form in which it exists in the
civil code of Cundinamarca, as noted in inclosure No. 2, on May 29, 1850, 25
days after the signing of the consular convention, and continued to be the
law of the Republic up to January 1, 1860. So that the statement in said
inclosure, that the Spanish law was that in force up to that date, must be
The question as to the houses has never been raised in these courts, so far
as my lawyers know, and, if it had been, it would throw no light upon the
matter, as the courts are not bound by precedent.
I trust that the suggestions herein made may be useful in the consideration
of the case presented by the consul.
I have, etc.,
[Inclosure 1 in No. 48.]
Mr. Vifquain to Mr.
Consulate of the United States,
Sir: I respectfully submit the following to
In July, 1888, I ordered sold at public auction by licensed auctioneers,
after duly advertising, the houses belonging to the estate of the late
Mrs. S. H. Smith. I had some doubt as to my right to selling [sic] those houses, yet, as claims were coming in
at the consulate thick and fast, and there being no ready cash on hand,
I wrote to the Department of State my dispatch No. 36 (inclosure No. 1),
and I received in answer dispatch No. 30 (inclosure No. 2).
This dispatch from the State Department means that, if, in my judgment, I
deemed it best for the estate to sell, that I should sell, and vice versa. Owing to the impending, collapse of
the canal, which was visible enough then, I deemed it best to sell, and
so notified the Department of State in my dispatch No. 42 (inclosure No.
Evidently, nothing in the dispatch No. 30 of the Department of State
intimated to me that I had not the right to sell; so I sold for $6,500
(Colombia a silver) to Mr. Potevin, an American citizen.
There was no will left, and, to my knowledge then, no heirs, and my
belief was that the United States became the heir.
Now, then, the prefect, the judge, and everybody knew that I was going to
sell the houses through the instrumentality of “licensed Colombian
auctioneers.” This was notorious, and yet not the slightest word to me
by them that I had not the right to sell. On the contrary, when I took
possession of the houses, Tasked the judge to protect me in my rights in
case they were disputed, and be told me he would. The prefect told me
that the tenants of the houses were compelled to pay the rent to Mr.
Potevin. Taxes were assessed against Mr. Potevin, and he paid them. We
even paid the 6 per cent. mil. required by law to be paid for transfers
of property. All this was received; not a word said by anybody. Can I
not, then, claim the tacit consent of the authorities to sell, even
though I had not the legal right to do so?
Thus great was my surprise when last February, nearly 8 months after Mr.
Potevin bad been in peaceable possession, collecting rents and paying
taxes, the prefect of this place, one J. M. Pasos, “denounces” the
property as vacant and demanding possession. Property by this time had
become depreciated full 100 per cent. [sic].
Well, all of a sudden I received news, last May, that there were heirs,
and I at once notified the judge, one E. Morales, to that effect. The
judge told me “all right,” and at once all proceedings were stopped
until the heirs put in an appearance. I wrote to the United States to
secure proper identification or presence of the heirs, but to this date
I have bad, as yet, no reply, yet I have some evidence that there are
heirs. They live in Sacramento, Cal., and I have before me an informal
copy of a power of attorney given by them to one James M. Pugh, a banker
in Osceola, Mo., to guard the interest of the heirs in the real estate
left by Mrs. S. H. Smith and lying in that part of the State of
However, the judge got tired of waiting, and, without consulting me or
advising me, he issued a decree on October 25 last, ordering all the
creditors of the estate to present their claims to his examination,
giving them 180 days to do so, at the expiration of which time the
houses would be sold by the court, and he at once put a receiver in
charge, thus fully dispossessing Mr. Potevin.
As soon as I learned of this, I called upon the judge in relation to his
decree. I told him I had paid the creditors after a most rigid scrutiny
of their claims; that I understood this to be one of my prerogatives as
consul; that he was aware I had fought some bogus claims in his own
court, and that I had won my case; and that I had paid the creditors
with the moneys received by me through the sale of the houses to Mr.
Potevin; that I bad paid off a $4,000 (Colombian silver) mortgage on the
houses and sent to the Treasury of the United States the 5 per cent,
[sic] proceeds of the sales, in accordance
with law; and that I had duplicate receipts for every payment made; that
there were no more legal claims to my knowledge, and that I had acted in
good faith all the way through.
He answered that he knew it, but that the only way to legalize all that I
had done was for every creditor to put in a petition into his court
praying that I might be deemed the legal claimant for each credit; that
at the end of 6 months he would sell the houses; and that then I would
be paid the moneys I had disbursed.
This, indeed, was a doubtful way for me to get the moneys I had paid,
since the houses would not sell for one-half of what I had sold them
for, besides placing in jeopardy the title of Mr. Potevin to the
property. And I told him so; told him also that it was the most
extraordinary thing on the part of the court and of the authorities “to
be so kind” as to allow me to pay off the mortgage on the property and
the creditors of the estate, and when I had done with all, and nearly 1
year afterwards, he and the authorities come in to claim the clear title
I further informed him that I would at once write to my ambassador at
Bogota, that the case might be placed by him before the proper cabinet
officer, or even before the President, with the request that a committee
be appointed to examine the claims I had paid, and, after examination,
provided they were found correct, as they will be, to have an order from
his court legalizing my sale and all.
I suggest to you for that committee Mr. E. Morales, the judge himself,
and Mr. Trapy Robinson, an American citizen here, the two to select
another among the foreign consuls here.
This is about the only way I see out of this without having recourse to
serious diplomatic proceedings.
To my mind, this seems to be a great wrong on the part of the authorities
here. I believe I have acted legally. Surely, I have acted in accordance
with instructions from the Department; but, even though my action had
not been just exactly in accordance with law, why is it that no notice
of my action is taken until I am through with it all and nearly 1 year
afterwards? Can I not, from their silence, claim tacit consent?
I respectfully refer you to article xii of the
treaty of 1846: * * * “and their representatives, being citizens of the
other party, shall succeed to their said personal goods or real estate,
whether by testament or ab intestado, and they
may take possession thereof.” I also respectfully refer you to Wharton’s
International Law Digest, vol. 1, p. 782, Marcy to Aspinwall; and also
p. 785, same volume, Cadwalader to Hopkins.
I very much regret to give you this trouble, but I can see no way to an
agreeable solution of this question without your intervention, and I
hope you will at your early convenience take steps to satisfactorily
arrange this, otherwise it will be a virtual confiscation of this
property, as well as a very great loss to me.
The settlements of estates are [sic] of no profit
to a consul; they are very vexatious. I have done what the Colombian law
requires shall be done—paid debts; the whole affair has been as open as
daylight. I did not attempt to evade the laws. Moreover, there are the
heirs in California, who are not even recognized by the court here. The
claims I paid were looked into with much greater care than if the money
had been my own, and the creditors were paid in full, what is seldom the
case when courts take part in the proceedings.
I hope soon to hear that the proper cabinet officer in Bogota will order
Judge E. Morales to look into my accounts and to legalize my sale after
finding things, as they should be, correct. My plan satisfies the
I am, etc.,
[Inclosure No. 1.]
Mr. Vifquain to Mr.
Consulate of the United States,
June 12, 1888.
(Received June 25.)
Sir: Heavy claims are presented to me against
the estate of the late Mrs. S. H. Smith, and no money on hand to meet
them. The actual property left here consists of three houses worth some
$10,000. These houses are built on lots leased from the Panama Railroad.
There is no character of real estate attached to the lands on which the
houses are built, so far as the late Mrs. Smith is concerned, since the
land can not be sold by the railroad company; it is leased yearly at a
rental of $750 American gold. Yet these houses are tenements. They are
of a perishable nature and have been so pronounced by the most
respectable of merchants here. Moreover, property here is depreciating,
and it costs money to keep houses in good repair.
I respectfully ask whether, under the circumstances, I can proceed to
sell these houses, it being certainly the best thing that can be done
I am, etc.,
[Inclosure No. 2.]
Mr. Rives to Mr.
Department of State,
Sir: I have to acknowledge the receipt of your
dispatch No. 36, dated June 12, 1888, relating to the estate of the late
Mrs. S. H. Smith.
You must use your best judgment in the case, as the facts are much more
completely know to you than they can be to the Department.
It may, however, be suggested that perhaps it might be well to delay
action for awhile until it be ascertained definitely whether Mrs. Smith
did not leave a will. The fact that none was found at Colon does not
establish that she made none, for one may yet be found in the United
States. Should such a will be produced and proved, and the executor
qualify, it would relieve you from considerable embarrassment and
Again, it is understood here that houses at Colon are usually frail and
inexpensive structures, costing little in the first instance, but
producing in rent a large annual percentage. These facts would seem to
lead to the conclusion that it would be well to postpone the sale of the
houses as long as practicable.
With regard to claims against the estate, it will be well to scrutinize
them with the utmost care, as all the circumstances point to the
suspicion, at least, that dishonest demands are likely to be trumped up,
and that Mrs. Smith was not likely to leave large debts unpaid.
All these, you will understand, are but suggestions for your guidance;
and while the Department strongly recommends a policy of great caution
and deliberation in this case, it can not undertake to give you definite
I am, etc.,
G. L. Rives,
[Inclosure No. 3.]
Mr. Vifquain to Mr.
Consulate of the United States,
July 21, 1888.
(Received August 3.)
Sir: Your dispatch No. 30, dated June 28,
relating to the estate of Mrs. S. H. Smith, was duly received; and,
inasmuch as you leave everything discretionary with me, I will sell the
houses, and for the following reasons:
The tenure of the lots by the Panama Railroad Company is uncertain. They
may at any day pass into the hands of the Government. What the value of
those lots will then be is a matter of conjecture; the rent, ground
rent, being liable to enhance, while that of the houses decreases.
Then, also, there is a $4,000 mortgage, with big interest, on the houses.
Then, again, it is quite an expensive affair to keep the houses in good
repair, to pay the taxes and ground rent, not speaking of the trouble to
collect rents, all of which the consul is responsible for without the
You are rightly informed as to the high rents here, yet they are
declining rapidly; but you are not rightly informed as to the character
of the houses, nor as to that of the deceased. The former cost nearly
$20,000; the latter was a most careless person in the management of her
business. There is no will; the deceased herself admitted this before
Your obedient servant,
United States Consul.
[Inclosure 2 in No.
Messrs. Gutierrez &
Escobar to Mr. Abbott.
Sir: We are about to comply with the desire you
were pleased to express to us verbally, that we should explain to you
what there may be relative to the rights which foreign consuls formerly
had, and now have, in this country as to the estates of their
fellow-citizens, according to the ordinary laws solely, that is, laying
aside the respective public treaties. We will refer especially to the
former States, now departments, of Cundinamarca and Tolima.
Up to December 31, 1859, the Spanish legislation as it existed at the
time of the independence was in force in those States in civil
From January 1, 1860, until July 22, 1887, the civil code of Cundinamarca
was in force in said departments, which contained these provisions:
“Article 595. If the heirs of the deceased upon whose estate it is
necessary to appoint an administrator (curador)
may be foreginers not residing in the State of Cundinamarca, the consul
or vice-consul of the nation of these heirs, if there is one in the
place of opening of the succession, may name the administrator or
administrators (curador or curadors), who shall have the custody and administration of
“Article 596. The judge shall grant the administration (curadoria) to the administrator or administrators proposed by
the consul or vice-consul if they be fit persons, and on the petition of
the creditors or other persons interested in the estates another or
others to [act with] the administrator or administrators, according to
the amounts and situation of the property which may compose the
“Article 1067. When a foreigner dies in the territory of the State
without leaving a will nor heirs, the property of the estate shall be
delivered to the consul or vice-consul of the nation to which the
deceased belonged; but, that this may be done, it shall be necessary:
- “(1) That 1 year shall have passed after giving notice of the
death of the foreigners by means of three consecutive printed
publications, and no person having presented himself who could,
according to the laws of Cundinamarca, succeed to the estate of
the deceased person or take possession of the property as
executor under the will. But, whenever such person shall present
himself, he shall have the right, if [Page 237] there be no legal objection, to take
possession of the estate, although the same may have passed into
the hands of the respective consul or vice-consul, or may be
subject to the disposition of the competent court, or under the
care of an administrator of the unoccupied inheritance (herencia yacente).
- “(2) That the judge having jurisdiction in the manner provided
for in this code, and with the assistance of the consul or
vice-consul, if there be one in the place, shall make a judicial
inventory of the property of the deceased and see that the legal
fees and taxes are paid and that the debts due from the deceased
to citizens of Cundinamarca or of any other of the States of the
Confederation are satisfied.
“There shall be made two certified copies of the judicial proceedings,
which shall be sent to the minister of foreign affairs of the Government
of the Confederation through the government of the State.
“Article 1068. The consuls and vice-consuls authorized to act as such in
the territory of the State by the Government of the Confederation, to
whom this code alone refers, in respect to the estates of their deceased
fellow-citizens dying intestate in the State of Cundinamarca without
leaving heirs in said State, may exercise the following functions:
- “(1) To place their seals upon such documents and effects as
the judge, by virtue of his office or at the solicitation of
interested parties, may have previously sealed.
- “(2) To assist in appraisals, inventories, and other judicial
acts in the settlement of the estate which the succession may
- “(3) To nominate an administrator or administrators, who shall
have the custody and administration of the property of the
deceased, as provided in articles 595 and 596.
“The administrator or administrators to whom the judge may have granted
the administration shall take charge of the same, and, in consequence
thereof, shall have the care and administration of the estate, including
books and papers, and thereafter the consul or vice-consul shall not
have the power to demand the delivery to himself of the property of the
estate, nor to intervene in the matter of the administration of such
property, except that he shall have the right to demand that the
administrator or administrators shall be held responsible, conformably
to the laws of the State, for the abuse or the mal-performance of their
“Article 1069. In all cases of which the preceding article treats, and
especially in the making of the inventory, and in what relates to the
security of the estate of the deceased, and to the rights of the
Confederation or the State as to such property, * * * there shall be
observed the laws of the State, so far as the same are not opposed to
public treaties celebrated by the Government of the Confederation which
now are, or which may hereafter be, in force in the territory of the
The national civil code (codigo civil national)
went into effect July 22, 1887.
This code contains nothing analogous to articles 1067, 1068, and 1069 of
the civil code of Cundinamarca above quoted.
Article 570 of the national civil code says:
“If the deceased upon whose estate it is necessary to appoint an
administrator shall have foreign heirs, the consul of the nation of such
heirs shall have the right to nominate the administrator or
administrators, who may have the custody and administration of the
Article 571 of the national code is the same as article 596 of that of
Cundinamarca, with the difference that the former mentions only the
consul and not the vice-consul.
According to articles 600, 601, 602, and 603 of the code of Cundinamarca,
which are exactly the same as articles 575, 576, 577, and 578 of the
national code, the curadores of property had no
further powers than those of mere custody and preservation, those for
the collection of the credits and the payment of the debts of those they
represent, the alienation of perishable personal property, the
alienation of personal property pertaining to the ordinary course of the
business of the deceased, and the carrying on of actions at law and
defenses of the same. Administrators of property can do no other acts
without previous judicial authorization granted on account of proved
necessity or utility.
We are, sir, etc.,
[Inclosure 3 in No.
Messrs. Gutierrez &
Escobar to Mr. Abbott.
Sir: We have studied with care the interesting
legal question about which you have been pleased to consult us, and
proceed to express briefly our opinion upon it.
The question is, whether a building constructed by a lessee upon leased
land should be considered, as to the said lessee, personal or real
According to the general rule contained in article 656 of our civil code,
things are real estate (inmuebles) which can not
be transported from one place to another, as lands and mines, and “those
things which adhere permanently to them, as buildings, trees.”
Buildings are, then, according to that, real estate (inmuebles) by their nature.
But it is a principle of jurisprudence that property by its nature
immovable ceases to be real estate and is converted into personal
property when it is considered, not in its actual state of union with
the ground, but in the future state of distinct individuality which
separation will give it, as when, for example, it is considered “as
having to be demolished” (como habiendo de ser
demolido), and therefore it is looked upon, not as a house, but
as stones, wood, iron, etc.
So is regarded, as to the lessee, the building constructed by him upon
leased land; and the reason for this is that the constructor does not in
this case have a right to the building itself, as such, but rather the
right to separate and carry away the materials which compose it in case
the lessor may not be disposed to allow him what the materials may be
worth, considering them as having been separated.
The cardinal point which has just been expressed, once noted, the
question is transformed into this other: Does the right of the lessee
constructor in the building pertain to personal or real estate?
According to article 667 of the civil code, rights and choses in action
are considered personal property or real estate, according to the nature
of the thing with which they are or are not to be used. So the right of
usufruct upon real estate is real; so the right of the buyer to a
delivery to him of a farm which he has purchased is real; and the right
of a lender of money to its repayment is personal.
In our system (derecho) there is positive law
outlined in the ancient maxim of Roman jurisprudence: “Actio quae tendit
ad mobile, mobilis est, actio quæ tandit ad immobile est immobilis.”
In order to apply this rule, or rather in order to understand what is the
object to which the right pertains, the proceeding is very simple, it
being sufficient to inquire what it is that the owner or creditor can
demand, or the object whose delivery or granting (prestation) the “demandee” can be compelled to make. If the
demandant can compel the delivery of real estate, his right is real; if
he can only demand the delivery of personal property, his right is
Applying this rule, it will be asked, then, in the present case, what can
the lessee constructor require of the lessor, and what can the latter be
compelled to deliver to the former?
The materials of the building, or their value, considering them as having
been separated, and as both things are personal property, it is manifest
that the right of the lessee has also this character.
That the lessee has no other right than that of carrying away the
materials of the building, if the lessor does not wish to allow him what
they would be worth after separation, is a thing about which there is no
doubt, because the building which is not necessary to the preservation
of the thing leased, but which increases its market value is evidently
an improvement, and that is the rule given for “improvements” in article
1994 of the civil code.
In confirmation of the above doctrine, we quote below the opinion of
Demolombe, who is, perhaps, the most profound of the commentators upon
the French civil code, from which ours is taken.
[Note.—I omit the translation of the quotation
from Demolombe.—J. T. A.]
As a logical consequence of this doctrine, Demolombe concludes that when
the constructor assigns his lease to a third person, with a right to the
buildings which he has constructed, the object of the assignment is
necessarily personal. But he notes that the court of cassation of France
has decided to the contrary in numerous judgments.
Notwithstanding, Fuzier-Herman, in a later work than that of Demolombe
above cited, entitled “Codes Annotés,” after referring to the decisions
of the Court of cassation upon this subject, establishes clearly that in
order that the right of the lessee to the buildings constructed by him
upon leased ground, and therefore the assignment of the right, may have
the character of real estate, it is necessary that the lessor shall have
renounced his right of “accession,” that is, the right to acquire the
property in said buildings at the expiration of the lease (a
circumstance which does not probably exist in the case which interests
you), and that, lacking that renunciation, the buildings constructed by
the lessee upon the leased land have, so far as relates to him (the
lessee), the character of personal property, and can not, therefore, be
hypothecated by the builder. (Vol. 1, p. 643.)
Your obedient servants,