The Secretary of State to Minister Dudley.

No. 375.]

Sir: I inclose herewith a copy of a dispatch from the consul-general at Callao in which he requests instructions as to the circumstances under which he should take charge of the estates of Americans who may die within his jurisdiction and a copy of the department’s reply thereto.

Mr. Gottschalk’s inquiry whether he can properly avail himself of the Peruvian Government’s offer to accord to American consular officers the privileges afforded to the most favored nation in connection with the settlement of the estates of deceased Americans having been answered in the affirmative the necessary action will be taken through your legation.

You will therefore request the foreign office to cause each of the Peruvian local officials concerned to be instructed to notify the appropriate consul of any death of an American that may occur within his jurisdiction.

I am, etc.,

Elihu Root.
[Inclosure 1.]

Consul-General Gottschalk to the Assistant Secretary of State.

No. 61–bis.]

Sir: Referring to my dispatch unnumbered, of October 30, 1905, I have the honor to invite your attention to the following facts: It has been the custom with Americans in Peru for a great many years past not to register at consulates and to refrain from notifying this office in case of deaths, estates of deceased American citizens, etc. I find upon careful investigation that this is done in complete innocence, and that here more so than in many places in Spanish-America which I have visited our countrymen usually resort to the consulates only in case of eminent peril (real or fancied) to life and property. So general is this condition that upon gathering information for my dispatch above mentioned in regard to the death of Edwin S. Dougherty, an American citizen and an employee of the Inca Mining Company, I was quite warmly thanked by Mr. Chester Brown, the manager of this company, as follows:

“Don’t think, Mr. Gottschalk, that we consider you intrusive in any way. We are only surprised at seeing you take an interest in this matter, and I am astonished, since you say it is part of a consul’s duty, that none of our representatives have ever bothered about such matters before. It is an excellent [Page 1237] thing, of course, and our company will gladly agree to make your nearest consular agent (Mollendo) or yourself a participant in anything that is connected with the deaths of American citizens in our employ.”

Before taking any further steps in regard to this important part of our consular work here, I have the honor to ask for your instructions, as follows:

  • Paragraph No. 1. I understand that the treaty between the United States and Peru, referred to in paragraph No. 414, Consular Regulations of 1896, has been abrogated, but am informed that our consular representatives will gladly be given by the Government the “most favored nation” privilege in regard to the estates of deceased American citizens. Am I correct in availing myself of this?
  • Paragraph No. 2. The United States statutes provide that consuls shall take possession of the personal estate of Americans not seamen dying within their jurisdiction, leaving there no legal representative, partner in trade, or trustee appointed before decease. I have the honor to inquire whether, in the proper interpretation of the statute, the employer or employers of the decedent are regarded ipso facto as legal representatives, partners in trade, or trustees—in other words, whether they may or may not rightfully settle the estate without the participation of this office.

It has been my intention to address a circular letter to the authorities in each department in Peru, asking them to notify this office in the case of Americans dying within their jurisdiction. (This, I am told, is done by some of my colleagues of other nations, but I have refrained from so doing until I heard from you on the two points above mentioned.) I should also be grateful if you would sanction the sending of a circular, as above indicated, if the plan meet with your approval.

I have, etc.,

A. L. M. Gottschalk.
[Inclosure 2.]

The Third Assistant Secretary of State to Consul-General Gottschalk.

No. 89.]

Sir: I have to acknowledge the receipt of your No. 61–bis, of November 13, relative to the settlement of the estates of American citizens dying in Peru.

In reply, I have to say that it is entirely proper for you to avail yourself of the most favored nation privilege with respect to the disposition of estates of American citizens which, it is understood, will be extended to you by the Government of Peru. The department is fully in accord with your views as to the advisability of requesting the local Peruvian authorities to notify you in cases of Americans dying within their jurisdictions, but it is thought that perhaps a more effective way of making the request would be through our minister at Lima, who will be suitably instructed in regard to the matter at an early day.

In reply to your second inquiry, I have to say that in the opinion of the department the employer of an American citizen can not, upon the death of the employee, be regarded as a legal representative, as a partner in trade, or as a trustee within the meaning of section 1709 of the Revised Statutes. In such case it would seem that you should take charge of the estate in the usual way, not permitting it to be settled by the employer.

I am, etc.

Herbert H. D. Peirce.