File No. 711.5221.
The Acting Secretary of State to the Minister of Spain.
Washington , October 21, 1911 .
Sir: I have the honor to acknowledge the receipt of your note of the 28th ultimo relative to the requirement of the probate court in the city of New York that the Spanish consul general in that city, representing the heir of the late José Pérez Suárez, first furnish a bond before turning over to him $350, representing the estate of the decedent.
There is no provision in the treaty of friendship of 1902 between the United States and Spain authorizing Spanish consular officers to collect, without furnishing the bond required by the local law, moneys belonging to the estates of one of their deceased fellow countrymen in the United States; nor is the Department aware of any rule of international law requiring that such bond be dispensed with. The [Page 715] treaty provision is that consular officers shall have, so far as compatible with local laws, the right of representing the absent, unknown or minor heirs, next of kin, or legal representatives; and that until the appearance of the heirs or legal representatives the said consular officers shall be permitted, so far as compatible with local laws, to perform all the duties prescribed by the laws of their own country for the safeguarding of the property and the settlement of the estates of their deceased fellow countrymen.
The question whether, under the most-favored-nation clause of a treaty (like article 27 of the treaty with Spain) and by referring to article 9 of the treaty of 1853 with the Argentine Republic, consular officers have a right to administer in preference to the public administrator, has been differently determined in the courts of different States. A case involving this question is now pending in the Supreme Court of the United States, where it was taken on appeal from the Supreme Court of California. But in the case of Wyman v. McEvoy (191 Mass., 276), where it was decided that a consular officer in such case had a right to administer, paramount to that of the public administrator, it was held that the consular officer, who had applied for letters of administration, should be required to give a bond and to conduct himself in other respects as would any other administrator.
If the decision of the probate judge of New York City is deemed incorrect, the parties in interest may, if they so desire, test the matter by bringing the case upon appeal before the appropriate superior court.
Accept, etc.,