File No. 711.5221.
The Minister of Spain to the Secretary of State.
Washington, September 28, 1911.
Mr. Secretary: I have the honor to apply to your excellency’s sound judgment for an opinion as to a conclusion reached by the probate judge of the city of New York on the occasion of the assumption by the consul general of Spain of the office of representative of absent heirs with a view to collecting an indemnity.
[Page 714]The facts are as follows: In connection with the death in New-York of the Spanish subject José Pérez Suárez, resulting from an accident in the elevator of Hotel Martinica, where he was employed, a relative of the deceased named José Pérez arrived in that city with a power of attorney of the family to claim the indemnity that might be allowed, and the court of New York awarded the sum of $300 to the family, besides $50 more, the property of the decedent. But Pérez, finding that his inability to file a bond made it difficult for him to collect the above said sums, transferred the power to the consulate general of Spain at New York, as being the sole and legal representative of the absent heirs.
The surrogate office now declines to issue the order for the payment of the $350 to the consulate unless the consul first file a bond in double the amount, alleging that the local law explicitly requires the bond and makes no exception for consuls.
The treaty of friendship and general relations between Spain and United States ratified at Madrid April 14, 1903, makes no mention or determination of the obligation to file bonds in the case of consular or diplomatic officers of the two countries, since, bearing in mind the representative character with which the officials of both countries are vested, it seems to disparage the respective nations which they represent to subject consular officers to a bond for acts in which they assume representation and responsibility, their office offering sufficient guarantee for the action taken by them in behalf of others in the discharge of their official duties.
On the strength of the two reasons above stated, I venture to ask, invoking the high sense of the Federal authority under whose protection the prestige of foreign representation is placed, that your excellency will be pleased to take steps to have the surrogate office desist from its demand that the consul general of Spain at New York shall file the bond which it makes a condition of the exercise of functions that appertain to his office.
I avail, etc.,