Carpigiani v. Hall

• Decision Date: 11 April 1911
• Citation: 172 Ala. 287,55 So. 248
• Parties: CARPIGIANI v. HALL ET AL.
• Court: Alabama Supreme Court

55 So. 248

172 Ala. 287

CARPIGIANI v. HALL ET AL.

Supreme Court of Alabama

April 11, 1911

Rehearing Denied May 5, 1911.

Appeal from Probate Court, Jefferson County; S.E. Greene, Judge.

Petition by Frank Carpigiani, as Consular Agent, against E. D. Hall and another for their removal as administrators of Francesco Santangelo, deceased, and that petitioner be appointed in their stead. From an order of the Probate Court sustaining a demurrer to the petition, petitioner appeals. Reversed and remanded.

James A. Mitchell and S. B. Stern, for appellant.

George Huddleston, for appellees.

SOMERVILLE J.

Francesco Santangelo, a citizen of Italy, died intestate on or about March 30, 1910, in Jefferson county, Ala., where he was then residing, leaving personal property valued at about $50, and contingently a right of action in his personal representative against a corporation for the injuries that caused his death. On April 15, 1910, a petition was filed in the probate court by E. D. Hall and Virga Giuseppe, as friend and relative of the deceased, which, in addition to the usual jurisdictional averments, recited that the names of the heirs and distributees of the decedent's estate, so far as known, are "Virga Giuseppe, cousin and nearest relative in America." On the same day--April 15th--letters of administration were issued to these two petitioners jointly; they having qualified by filing the required bond. On April 19, 1910, Frank Carpigiani filed his petition in the probate court stating under oath that he is the consular agent of Italy at Birmingham, Ala., and as such empowered to look after the estates of Italian subjects who die intestate in Jefferson county; that Francesco Santangelo was a subject of the Kingdom of Italy at the time of his death, which occurred on or about March 30, 1910, and less than 40 days prior to the filing of this petition; that deceased left no wife or children, but is survived by his father and mother, who reside at Salarparuta, Italy; that the petition of E. D. Hall and Virga Giuseppe (a copy of which is made an exhibit) was not for the benefit of the estate or heirs of the deceased, but was for the fraudulent purpose of appropriating the funds of the estate to their own use, in furtherance of which scheme Virga Giuseppe had falsely and fraudulently represented himself to be a relative of the deceased, when in fact he was in no way related to him. The prayer of the petition is that Hall and Giuseppe be cited to appear and show cause why they should not be removed from the administration and their letters revoked and that upon such hearing they be removed and their letters revoked; and that the petitioner, Carpigiani, be appointed as administrator in their stead. Citations were issued as prayed for, in response to which Giuseppe filed a sworn answer confessing the fraud and falsehood charged in the petition renouncing his claim, and consenting that an order be made removing himself and Hall, and revoking their letters. Hall interposed a demurrer to the petition on the ground that it did not show that the petitioner was in any way interested in the estate, nor that he had any lawful authority to represent any of the persons in interest, nor that he had any standing to maintain the petition, and because no sufficient reason was shown for the revocation of the letters issued, nor for the removal of the administration. The probate court sustained the demurrer, and denied the petition, from which decree the petitioner, Carpigiani, appeals to this court.

1. The grant of administration having been made before the lapse of 40 days, and it appearing that the intestate's father survived him, the grant was premature and improvident; and the court would have been authorized ex mero motu to revoke the grant. And, upon the timely application of any person having a prior right to administration, it was the duty of the court to do so. Koger v. Franklin, 79 Ala. 505; Markland v. Albes, 81 Ala. 433, 2 So. 123.

The fact that the intestate's father was a nonresident did not disqualify him for the office of administrator, if he chose to undertake it. Fulgham v. Fulgham, 119 Ala 403, 24 So. 851.

2. The rights and privileges of consuls rest on the general law of nations, as well as on treaty stipulations. 2 Opinions of Attys. Gen. U.S. 378. In his treatise on Public International Law (page 356), Mr. Taylor states that one of the duties attaching to the consular office is "to see that the laws of the state in which he officiates are properly administered when the rights of such (his) fellow citizens are involved."

The duty, and by comity the authority, of a consul to receive and care for the personal estate of citizens of his own country who may die within his consulate, and to protect the estate from spoliation, is prescribed and recognized by all civilized nations. 7 Moore's Digest International Law, § 722, p. 117; The Bello Corrunes, 6 Wheat. 152, 5 L.Ed. 229; Wheat. Int. Law (2d Ed.) 151; Woolsey's Int. Law, § 96. Of the general propriety of such a practice there can be no possible doubt, and we are of the opinion that the appellant's intervention on the grounds set forth in his petition was no more than his official duty prescribed, and was authorized by the law and comity of nations.

We mean to say only that he had a right to be heard on his petition independently of treaty provisions, for the purpose of procuring the removal of these administrators if shown to be dishonestly conspiring to despoil the estate, or if they were improvidently appointed; and that this prerogative attaches by law to his...