Santovincenzo v. Egan

• Decision Date: 23 November 1931
• Docket Number: No. 31,31
• Parties: SANTOVINCENZO, Consul of Italy at New York. v. EGAN, Public Adm'r, et al
• Court: U.S. Supreme Court

284 U.S. 30

52 S.Ct. 81

76 L.Ed. 151

SANTOVINCENZO, Consul of Italy at New York.

v EGAN, Public Adm'r, et al.

No. 31.

Argued Oct. 22, 1931.

Decided Nov. 23, 1931.

[Syllabus from pages 30-32 intentionally omitted] Mr. Carroll G. Walter, of New York City, for appellant.

Mr. Robert P. Beyer, of New York City, for appellee.

[Argument of Counsel from page 33 intentionally omitted] Mr. Chief Justice HUGHES delivered the opinion of the Court.

Antonio Comincio, a native of Italy, died intestate in New York City some time prior to March 10, 1925, when letters of administration were issued to the respondent as public administrator by the Surrogates' Court of New York County. Upon the judicial settlement of the administrator's account, the appellant, the Consul General of Italy at New York, presented the claim that the decedent at the time of his death was a subject of the King of Italy and had left no heirs or next of kin, and that, under article XVII of the Consular Convention of 1878 between the United States and Italy, the petitioner was entitled to receive the net assets of the estate for distribution to the Kingdom of Italy. The Attorney General of New York contested the claim. The Surrogates' Court, finding that the domicile of the decedent was in New York City, decreed that the balance of the estate, amounting to $914.64, after payment of debts and the sums allowed as commissions and as expenses of administration, be paid into the treasury of New York City for the use and benefit of the unknown kin of the decedent. In re Comincio's Estate, 135 Misc. Rep. 733, 240 N. Y. S. 691, 692. The decree was affirmed by the Appellate Division of the Supreme Court of the state, First Department (229 App. Div. 862, 243 N. Y. S. 814), and both the Appellate Division and the Court of Appeals of the state denied leave to appeal to the latter court. The case may be regarded as properly here on certiorari. Jud. Code, § 237(c), U. S. C., tit. 28, § 344(c), 28 USCA § 344(c).

There is no controversy as to the facts. The decedent was never naturalized, and at the time of his death was an Italian subject. He had lived in New York for many years, and the finding that the decedent was domiciled there is not open to question. Nor were any heirs or next of kin discovered. The testimony introduced on behalf of the Italian Consul General, which was undisputed, stated that the decedent had no relatives, and the decree of the Surrogates' Court recited that next of kin were unknown. The decree was made pursuant to chapter 230 of the Laws of New York of 1898 (as amended). The Surrogate said in his opinion: 'Pursuant to our statutes, this amount would be directed in the decree to be paid into the city treasury of the city of New York to await ascertainment of the next of kin. Uitimately the amount would find its way into the treasury of the state of New York.'

The provision of the Consular Convention between the United States and Italy, under which the claim of the Italian Consul General was made, provides (20 Stat. 725, 732): 'Article XVII. The respective Consuls General, Consuls, Vice-Consuls and Consular Agents, as likewise the Consular Chancellors, Secretaries, Clerks or Attache s, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favoured nation.'

Pursuant to this agreement, the Italian Consul General sought the application of article VI of the Treaty between the United States and Persia of 1856 as follows (11 Stat. 709, 710): 'Article VI. In case of a citizen or subject of either of the contracting parties dying within the territories of the other, his effects shall be delivered up integrally to the family or partners in business of the deceased; and in case he has no relations or partners, his effects in either country shall be delivered up to the consul or agent of the nation of which the deceased was a subject or citizen, so that he may dispose of them in accordance with the laws of his country.'

This Treaty with Persia was terminated on May 10, 1928, but, as this was subsequent to the death of the Italian national whose estate is in question, the termination does not affect the present case.

It may be assumed that article XVII of the Consular Convention with Italy contemplates reciprocity with respect to the rights and privileges sought, and there is no suggestion that Italy has not recognized the right of consuls of the United States to take the effects of the citizens of the United States dying in Italy in circumstances similar to those in which present claim of the Italian Consul General is pressed. As, is this view, there appears to be no ground for denying the right of the Italian Consul General to demand the application of the last clause of article VI of the Treaty with Persia, the only question is as to the interpretation of that provision.

We are not here concerned with questions of mere administration, nor is it necessary to determine that the loose phrasing of the provisions of article VI precludes an appropriate local administration to protect the rights of creditors. Nor have we to deal with a case of testamentary disposition. In this instance there is no will, administration has been had, creditors have been paid, proper steps have been taken, without success, to discover kin of the decedent, and, assuming the absence of relatives, the question is one of escheat, that is, whether the net assets shall go to Italy or to the state of New York. The provision of article VI of the Treaty with Persia does not contain the qualifying words 'conformably with the laws of the country' (where the death occurred) as in the case of the Treaty between the United States and the Argentine Confederation of 1853 (article IX, 10 Stat. 1001, 1009; Rocca v. Thompson, 223 U. S. 317, 326, 330, 332, 32 S. Ct. 207, 56 L. Ed. 453); or the phrase 'so far as the laws of each country will permit,' as in the Consular Convention between the United States and Sweden of 1910 (article XIV, 37 Stat. 1479, 1487, 1488; Rocca v. Thompson, supra; Matter of D'Adamo, 212 N. Y. 214, 222, 223, 106 N. E. 81, L. R. A. 1915D, 373). The omission from article VI of the Treaty with Persia of a clause of this sort, so frequently found in treaties of this class, must be regarded as deliberate. In the circumstances shown, it is plain that effect must be given to the requirement that the property of the decedent 'shall be delivered up to the consul or agent of the nation of which the deceased was a subject or citizen, so that he may dispose of them in accordance with the laws of his country,' unless a different rule is to apply simply because the decedent was domiciled in the United States.

The language of the provision suggests no such distinction and, if it is to be maintained, it must be the result of construction based upon the supposed intention of the parties to establish a exception of which their words give no hint. In order to determine whether such a construction is admissible, regard should be had to the purpose of the Treaty and to the context of the provision in question. The Treaty belongs to a class of commercial treaties the chief purpose of which is to promote intercourse, which is facilitated by residence. Those citizens or subjects of one party who are permitted under the Treaty to reside in the territory of the other party are to enjoy, while they are such residents, certain stipulated rights and privileges. Whether there is domiciliary...