Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President, Transmitted to Congress, December 4, 1893
Mr. Ryan to Mr. Gresham.
Mexico, April 10, 1893. (Received April 19.)
Sir: I have the honor to submit herewith copies of correspondence between the U. S. consul at Piedras Negras, Mr. E. O. Fechét, and this legation, relative to his consular duties in connection with the estate of a deceased American citizen named Thomas Eddins.
Mr. Fechét seems to have thought it to be his right and duty, under the law, to take upon himself the administration of the personal estate as against the court which had already assumed jurisdiction of the matter. I have advised the consul that, in the absence of any convention between the two countries defining consular powers in the premises, the law of Mexico governs, and that he should respect the orders of the court, taking care to exercise his conceded consular privileges, and to advise his Government, from time to time, of any action or inaction on the part of the judicial authority prejudicial to justice.
I am, etc.,
Mr. Fechét to Mr. Ryan.
Piedras Negras, March 19, 1893.
Sir: I have the honor to report that on March 9, 1893, the body of Thomas Eddins, a native-born American citizen, was found in the Rio Grande River. Mr. Eddins had lived in C. Porfirio Diaz a number of years, as an engineer on Mexican International [Page 420] Railroad Company, and was well known to be a man possessed of some property. As soon as informed of his death I went to the local judge and found that a trunk, supposed to contain documents and other evidence of Eddins’s property, had been already taken from Eddins’s house to the court room, and sealed by the second juez de latras, Francisco Yza Sepulveda. I received permission to place the consular seals upon this trunk over the court seals.
Friday, March 10, I officially notified the judge that, under the provision of article 10, Sections vi and vii, I would name a receiver of the estate of Thomas Eddins. The judge informed me that I possessed under above law the right to propose (proporer) a receiver, but that he, the judge, would name (nombrar) the receiver.
I protested against this construction of the Federal law and the judge claimed that he had made an “anterior decree” naming a receiver.
In effect the ruling of the court is that a decree made anterior to nomination of receiver by consuls bars consul from naming receiver. As I presented myself in court within twenty-four hours of the death of Eddins, and officially stated to the court my intention to avail myself of the rights granted by Federal law, I protested to the court that this construction of the law would nullify all consular rights, and practically make this law of no effect.
In the official correspondence with the court I have respectfully maintained that the manifest object of this Federal law is to grant and concede to consular officers certain rights and capacities for an effective guardianship over the estates of their deceased compatriots. This the court practically denies to me. Upon another point I foresee obstacles will be raised up: Assuming I shall present a full power of attorney from one of the heirs, I am convinced from a study of the correspondence had with the court that the court will claim the right to decide, upon evidence submitted, whether the grantor of the power of attorney is a legal heir, etc.
This would lead to endless delay. I claim that the consul is responsible to Sis Government concerning all questions of heirship and succession; that, in this case, the Mexican Government is only concerned when the estate is administered in two points, viz, credits or claims against estate, and secondly, payment of taxes, etc., due from estate. Section vu, article 10, of Mexican Federal law above cited, covers these cases.
I would, therefore, request that these points be submitted to the Mexican Government: “What is the full intent of the language of article 10, Section vi, providing that consul may name a receiver after barred by an anterior decree;” may the court arbitrarily make such anterior decree solely to nullify the consular right to name a receiver! In case of Eddins no creditors or claimants of any kind exist to give any color of reason for such anterior decree.
Again, can court require evidence of heirship and go into this whole question of the legal heirs to the succession when the consul claims the right and duty of administering the estate. This is not to be confounded with the case of an heir or claimant disputing the consul’s right. In present case one heir, a brother, came here on my telegram and has given me a power of attorney, and this data has been sent to department of state that all heirs may be traced. I contend that the Mexican Government only is concerned in equitable settlement of this estate as concerns claims against it here in Mexico, and that the Mexican Government will not follow the net proceeds of liquidation of estate to its ultimate division between legal heirs, and hence I claim that the judge has no right to require evidence as to legal heirship and resulting right of E. W. Eddins to grant a power of attorney to consul to administer upon the estate of his brother. All legal claims against the estate in Mexico having been settled, then if I shall recognize a person not an heir and pay over any portion of the estate I am responsible to the U. S. Government and to the rightful heirs, and not to the Mexican Government.
A third point, and one I deem of great importance: Should not supervision of affairs of deceased aliens belong to the Mexican Federal courts?
There is here a district federal judge, upright and able, could this case be transferred to his court I would have no trouble. I am advised that under the law or right of Amparo I may by legal process have it so transferred, but I have no fund to employ an attorney to do this.
In view of the difficulties I have encountered in the State court it has seemed possible that you may ask that instructions be sent the Federal judge here to take charge of this matter of the estate of a deceased alien.
I respectfully would urge all dispatch possible in resolving the points I have submitted, as no steps can be taken towards the settlement of this estate until instructions shall come from Mexico City.
I understand that Consul Maillifert has written the Mexican department of state, so that your excellency will find the foreign office fully informed concerning the issues between the State judge and myself.
I am, etc.,
Consul.
Mr. Fechét to Mr. Ryan.
Piedras Negras, March 22, 1893.
Sir: In continuation of and respectfully referring to my communication to the legation of March 19, 1893, I have the honor to advise you that it is now my present intention to withhold my consent as consul to the breaking of the seals upon the trunk, now in the custody of the second judge of letters, C. Porfirio Diaz, supposed to contain documents and evidence of the property of Thomas Eddins, deceased, American citizen. To fully advise the legation of all my actions on this matter of endeavoring to do my duty in connection with the estates of deceased citizens of the United States, and to make clear that I am not actuated by any spirit of contentious opposition, I will state that I have a second estate of a deceased American citizen, C. N. A. Cunningham. Cunningham was engaged in business in Ciudad Porfirio Diaz. As soon as his death was known several creditors petitioned second judge of letters for action that would protect their claims, so that, when I named a receiver, under the provisions of Section vi, article 10, Federal law of November 26, 1859, I was informed that “an anterior decree” had been made, naming a receiver, in answer to the petition of certain creditors. I answered the judge that a receiver named by the consul would have to observe all legal requirements in administering the estate, and that no interests of creditors would be prejudiced.
As the premises of Cunningham were sealed with court and consular seals, and the court would not allow me to name a receiver, it at first seemed feasible to respectfully refuse to break the seals until the points at issue between the court and consulate could be authoritatively decided. A consideration, however, of the injury resulting to Cunningham’s property for delay, as rents were accumulating and perishable goods were on the premises, decided me to assist the court in removal of the joint seals and in making the inventory prescribed by law. All this was done yesterday, and when completed I handed the judge an official communication naming a receiver. When the judge shall officially notify me that he can not allow me to name a receiver, as he will undoubtedly, I shall merely write him a respectful protest, and the Cunningham case will be ended save in the ultimate decision as to what consular rights, in relation to the estates of deceased compatriots, were conferred by the Federal law of November 20. 1859.
The legation will then understand that, in the case of Cunningham, the receiver named by the court is now in possession of the estate, and I am unaware of any means by which, as consul, I can exercise any guardianship over it.
The case of the estate of Thomas Eddins presents different features: First, there are no creditors petitioning for court’s intervention, as in Cunningham’s case; secondly, no damage can result from a delay in breaking the seals upon the trunk supposed to contain the legal evidences of his ownership to property, etc. Having been officially informed by the court that I will not be permitted to name a receiver, as one has already been designated by the court, and having reported to the legation, in my communication of 19th instant, the points at issue arising from differences between the court and the consulate as to consular rights, and requested the legation to as soon as possible advise me whether the position I have taken is correct, I shall request the court to delay until a decision can be had from the Mexican Government. I shall make this request in reply to an official citation just received to be present at the breaking of the seals now upon the trunk of Thomas Eddins. In case the court shall refuse to delay, and shall persist in citing me to break the seals, I shall respectfully decline, to allow time to have received instructions from the legation.
Upon this one point of my deciding not to break the seals I respectfully request that, if the legation shall believe that I should not refuse to break the seals (pending a decision by the Mexican Government as to consular rights in the matter of the estates of deceased Americans), a telegram be sent me at once and I will break the consular seals.
I request that instructions be sent me as quickly as possible, for I wish to avoid an appearance even of antagonism to the courts; and I beg that the legation will assure the Mexican foreign office that my sole object is to secure, by respectful and proper means, an authoritative decision defining consular rights under this Federal law of November 26, 1859.
I am, etc.,
Consul.
Mr. Ryan to Mr. Fechét.
Mexico, March 28, 1893.
Sir: Referring to your communications, respectively of the 19th and 23d instant, relative to the personal effects of Thomas Eddins, deceased, the jurisdiction you claim of the personal effects of the deceased is not sustained by the foreign office. It is claimed, and you should act accordingly, that your rights are defined by Sections vi and vii of article 10 of the Mexican law of November 26, 1889. By Section vi you may, respecting the effects, furniture, and papers of the deceased, use the consular seal in the manner therein indicated. In that event the seals can only be detached by the consent of yourself and the court. When detached you should be summoned by the court to perfect an inventory. You should then be given a legalized copy of it, together with a copy of the last will and testament of the deceased, if there be such. You * * * have the right to propose a receiver, who shall give bond, unless the court has previously appointed one. You are also given the right of succession upon presentation of due legal power, as provided in said Section vii. At this capital the courts have been courteous enough to hand over to the consul-general the personal effects of his deceased countryman, and allow him to administer upon them without any interference whatever, even surrendering such effects to him after they had taken possession of them.
We may at least indulge a hope that the court will act in the matter with expedition and fairness in this case, notwithstanding the discourtesy of the local judge toward the U. S. consul in his unseemly haste to appoint a receiver.
I am, etc.,
Mr. Ryan to Mr. Fechét.
Mexico, April 3, 1893.
Dear Sir: Referring to your letter of the 22d ultimo, received at this legation to-day, you are, of course, aware that there is no treaty between the United States and Mexico upon the subject.
In the absence of such a treaty you will be governed by the applicable laws of this country, as defined by the judicial authority.
By international comity, generally observed by nations, a consular officer, in such a case as this, may take control provisionally of the personal effects of the deceased. The courts may, however, supervene, and, in that event, their orders respecting such effects should be respected by the consular authority. In this case such comity would allow you to intervene to the extent of observing the proceedings and permitting your presence at the making of the inventory. For any additional rights in the matter you must look to the Mexican consular law of November 26, 1859. As the courts are charged with the administration of this law their construction of it must prevail.
I have already wired you to this effect. The fact that the court may have acted with apparent discourtesy in denying you the privilege of naming a receiver, by making unseemly haste to exercise the authority given to it to appoint one itself, affords you no warrant for declining to perform your conceded duties in the premises. In this connection, referring to my letter of the 28th ultimo, I suggest that, within the law, you do what you properly may to protect the estate against undue waste, keeping your Government informed touching any matter or proceeding relative thereto which may seem to you unjust or unlawful.
Yours, very truly,