File No. 20718/16–22.
The Acting Secretary of State to Minister Sands.
Washington, October 12, 1909.
Sir: The department is in receipt of Mr. Heimké’s dispatches Nos. 2271 and 234,1 dated, respectively, July 26 and August 16, 1909, inclosing copies of correspondence between him and the Guatemalan foreign office, concerning the settlement of the estate of Henry Baxton May, an American citizen, who died intestate at Esquintla, Guatemala, on June 9 last.
[Page 347]May appears to have left two wives, with children by each, one in the United States and one in Guatemala, and Mr. Heimké brought the case to the attention of the Guatemalan Government, with the view to safeguarding the property left by May in Guatemala and to protecting the right of May’s heirs in the United States.
The department desires that you should keep clearly before you, in connection with your handling of this case, the fact that it would appear that under Guatemalan law the children of May’s Guatemalan wife were his heirs. You will also bear in mind the principle, with which you are already familiar, that American consuls can demand in foreign countries only such rights and powers as have been expressly conferred upon them by treaty, and can exercise only these treaty powers and such other powers, if any, as may have been extended by the local municipal statutes of the countries from which they hold their exequaturs. The only right which our treaty appears to give to American consuls in Guatemala, so far as it relates to their powers and jurisdiction over the estates of Americans dying in Guatemala, is that conferred by article 3 of the treaty of 1901, which provides that—
In case of the death of any citizen of the United States of America in Guatemala, or any citizen of Guatemala in the United States, without having in the country of his decease any known heirs or testamentary executors by him appointed, the competent local authorities shall at once inform the nearest consular officer of the nation to which the deceased person belonged of the circumstance, in order that the necessary information may be immediately forwarded to persons interested.
The said consular officer shall have the right to appear personally or by delegate in all proceedings on behalf of the absent heirs or creditors, until they are otherwise represented.
You will observe that this gives to the consul no right whatsoever to take charge of an estate, his powers being confined to the right to appear “personally or by delegate in all proceedings on behalf of the absent heirs or creditors, until they are otherwise represented.” It would thus seem that Consular Agent Thompson, by assuming personal charge and custody of the effects of Mr. May, exceeded the powers conferred upon him by the treaty, and, therefore, in all probability made himself liable for any mismanagement of the estate, unless it should be that the Guatemalan statutes have given the consul enlarged rights and powers in this matter, as to which latter point the department is not advised.
In connection with the power conferred by the treaty only, it should be observed that not only would it appear that May’s children by his Guatemalan wife, as well as the wife herself, were present in Guatemala and had legal capacity to appear in the appropriate proceedings before the Guatemalan courts, but that one of Mr. May’s children by his American wife was also present. The department does not perceive, therefore, upon what ground Consular Agent Thompson could have defended his action in this case, so far as his treaty rights are concerned.
You will therefore caution consular officers generally in Guatemala regarding the extent of their consular jurisdiction in the matter of winding up estates so far as their treaty rights go, and instruct them to exercise the greatest care not to exceed the powers that have been granted to them by treaty or by local statute.
I am, etc.,