Chryssikos v. Demarco

Boyd, C. J., delivered the opinion of the Court. This is an appeal from an order of the Orphans’ Court of Baltimore City which dismissed a petition of George J. Ohryssikos, a representative of the Consulate of Greece at Kew York, which asks the Court, to revoke, vacate and set aside letters of administration which had been granted Vincent J. Demarco on the estate of Kick Valmus, deceased, and to appoint him in the place of said Demarco. The petition alleges that Kick Valmus was a citizen of the Kingdom of Greece and died on the first day of May, 1918, in the City of Baltimore, where he resided, leaving surviving him as his only heirs or next of kin certain persons therein set out.; that he left $1,800 in the Savings Bank of Baltimore and other sums on deposit in the City Savings Bank at. Savannah, Ga.

It is alleged that an application for letters of administration upon the estate of Kick Valmus. was made by Vincent Demarco, attorney at law, of Baltimore, and letters were issued to him on June 1, 1918; that Demarco is not a relative of the deceased and his surviving, brother living in this country has not reached the age of twenty-one years; that deceased was not a citizen of the United States but a citizen of Greece, and left surviving him parents, sisters and a brother in Gre ce. It is further alleged that the Consul-General, repre ⁵³⁵ senting' the Kingdom of Greece, and in pursuance of the treaty existing between the United States and Greece, is entitled to letters of administration and is by said treaty given tbe right prior to relatives of the deceased. With the petition there was filed a paper-writing in which Constantine Ranagopoulos., Consul-General of the Kingdom of Greece at New York, certified that George J. Chryssikos is the duly appointed and acting representative of the Consulate of Greece at New York and he nominated and directed him to make application to the Orphans’ Court of Baltimore City for letters of administration npon the estate of Hick Valm,us and to qualify as administrator. That is dated the 29th of July, 1918.

An answer was filed September 3rd, 1918, which denied the right of the petitioner and of the Consul-General to relief under the petition, and alleged that it was bad in substance and not sufficient in form, etc. There can, of course, he no question about the obligation of State courts to obey and respect treaties made under the authority of the United States, as the constitution and the laws of the United States made in pursuance thereof and all treaties made under the authority of the United States, are the supreme law of the land; “and the judges in every State shall he hound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” Article 6, Con. of U. S. Article 2 of the Declaration of Rights of this State is to the same effect, and for the moat part in the same language. When then the rights of a party under a treaty are alleged to he involved, it behooves a Court to give such a case its m0SX thorough investigationand consideration, so that such rights as he has will be fully protected, and possible international controveries be avoided. We are not required, however, to give a strained construction to the language of a treaty, or place an unreasonable interpretation upon it, for the purpose of securing to foreigners privileges which are denied citizens of this country. Before discussing the treaty relied on, wa will refer to some of the provisions of our testamentary laws which, relate to granting letters of administrar ⁵³⁶ tion. on estates of deceased persons and determine the right to administer—at least where no snch question as that here raised is involved.

Our testamentary laws contemplate prompt administration. “Whenever any person shall die intestate, leaving in this State personal estate, letters of administration may forthwith he granted by the Orphans’ Court of the county wherein was the party’s mansion house, or residence,” etc. Sec. 14 of Art.- 93. The provision in section 16 that “Ho such administration shall be granted until at least twenty days after the death of the supposed intestate, and at least seven days after application therefor” only applies “to cases where the intestacy is not notorious or has not been proved to the satisfaction of the Orphans’ Court.” Williams v. Addison, 93 Md. 41 . If letters are granted within the twenty days, the mere fact that they were does not make them invalid, as the presumption would be that such dying intestate was notorious or was proven as required. Jones v. Harbaugh, 93 Md. 269 .

Sections 18-29 of Article 93 prescribe the order in which relations of an intestate are entitled to administer, and section 30' provides that if there be no relations administration shall be granted to the largest creditor applying for the same. Sec. 31 is: “If there shall be neither husband, nor wife, nor child, nor grandchild, nor father, nor brother, nor sister, nor mother, or if those be incapable, or decline, or refuse to appear on proper summons or notice, or if other relations and creditors shall neglect to apply, administration may be granted at the discretion of the Court.” See. 32 provides that “It shall not be necessary to give notice to a party entitled to administration if he be out of the State, nor shall it be necessary to summon or notify collateral relations more remote than-brothers and sisters of the intestate, in order to exclude them from the administration; and no relations, except a widow, child, grandchild, father, brother, sister or mother shall be considered as entitled unless they shall apply for the same.” In Jones v. Harbaugh, supra, Harbaugh was the only brother and nearest relative of the deceased, who had no ⁵³⁷ other relations who were entitled to letters unless they applied for them, and no creditor applied. Harbaugh was a non-resident of the State, and we held that he “was not entitled to notice as he was out of the State, and therefore if before he applied letters had been granted to the person next entitled he could not have had them revoked. Ehlen v. Ehlen, 64 Md. 360 .

There being no one who was entitled to letters unless lie applied, ‘administration may he granted at the discretion of the Court.’ Art. 93, Sec. 31. So in the absence of fraud or mistake, the appellee could not have had the letters revoked, if he had applied on the ground that he was first entitled.” Dr. Jones was a Coroner of Baltimore City, where the decedent was found dead, and he applied for letters and obtained them two days after Harbaugh’s body was found—the circumstances required prompt action. It is then clear from the statutes and our decisions that none of the relatives of Yalmus who lived in Greece, or in this country outside of this State, would he entitled to- have the letters revoked which were granted to the appellee, and it is equally clear that they were not entitled to notice. If the treaty relied on by-the appellant required notice to- he given to the Consul-General before the Orphans’ Oourt could grant letters to the appellee, or if he is by reason of it in a position to demand that the letters be revoked, then it vests in him powers which are not only not granted to- him by the testamentary laws of this State, hut are denied to relatives and all others not claiming under the Consul-General.

Without now referring to other grounds relied on by the appellee as defenses to the petition, we will examine the treaty with Greece in order that- we can determine what the rights of the appellant are under it in this matter. In the Consular Convention of 1903 between Greece and the United States, the following article appeared: “Article XI. In the case of the death of any citizen of the United States in Greece, or of a Greek subject in the United States, without having any known heirs ⁵³⁸ or testamentary executors by him appointed, the competent local authorities shall give information of the circumstances to the consular officers of the nation to which the deceased belongs, in order that the necessary information may be immediately forwarded to the parties interested. “In all that relates to the administration and settlement of estates, the consular officers of the high contracting parties shall have the same rights and privileges as those accorded in the United States of America and Greece, respectively, to the consular officers of the most favored nation.” The appellant by reason of “the most favored nation” clause relies on the Convention of 1911 between the United States and Sweden. The first paragraph of Art. 14 of that Convention is sufficiently like that in Art. 11 with Greece to make it unnecessary to repeat it.

That is immediately followed by these two paragraphs: “In the event of any citizen of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the consul-general, consul, vice-consul-general, or vice-consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul-general, consul, vice-consul-general, or vice-consul, shall, so far as the laws of each country will permit, and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property left by the deceased for the benefit of. his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate. “It is understood that when, under the provisions of this article, any consul-general, consul, vice-consul-general, or vice-consul, or the representative of each or either, is acting as executor or administrator of the estate of one of his deceased nationals, said officer or his representative shall, in all matters connected with, relating to or growing out of the settlement of such ⁵³⁹ estates, be in sueb capacities as fully subject to the jurisdiction of the courts of the country wherein the estate is situated as if said officer or representative were a citizen of that country and possessed of no representative capacity whatsoever.” In view of the testamentary laws of this State, which we have referred, to above, there would seem to be but little room for discussion, were it not for the concluding sentence in the first paragraph .of the treaty with Sweden quoted above: “and, moreover, have the right to be appointed as administrator of such estate.” It would not be just to assume that in making a treaty with a foreign country laws of the different States were intended to be repealed or ignored, in the absence of express language or clear implication showing such intent, especially such as testamentary laws, which are necessary and exist in every State, although they differ in some particulars. To permit a representative of a foreign government to set aside the provisions of testamentary laws, and take from the probate courts, orphans’ courts, or by whatever name they be known, the power to determine who shall administer upon estates, when otherwise it would be in the discretion of the courts, would bo conferring broad powers on bim, and yet if the contention of the appellant is sustained that is what it amounts to. Eor if a Consul-General has paramount right to administer, and can require our courts to remove administrators appointed according to the laws of the State, and let someone he designates qualify, the Consul-General, or his representative, virtually makes the appointment, and not only that, but may do so when it suits his convenience, and not before. So, although courts are hound by treaties and must not place a construction on them which would alter, add to, take from or in any way change them, or he controlled by the mere inconvenience of the provisions, if clear and unambiguous, they can, in seeking to ascertain the meaning of provisions, which are not free from doubt, take into consideration ⁵⁴⁰ the results which would follow a construction urged upon them.

The decisions have not been uniform in considering the right to administer upon estates, in cases before the courts in connection with different treaties between the United States and other countries. The general rule is thus stated in 9 R. C. L. 158, par. 5: “The duty, and by comity the authority, of a consul to receive and care for the personal estate of a citizen 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 ; but this power of intervention does not carry with it the right of administration of such estates, for it is fairly well settled that he has no right, as a consular officer, apart from treaty provisions, local law, or usage, to administer on such estates, or, in the absence of judicial authorization, to aid, in his character as consul, any other person in so administering them.” As we pointed out, “the most favored nation” clause in the treaty with Sweden is relied on, and the important question is whether the clause in the first paragraph in the part of that treaty quoted above, viz, “shall so far as the laws of each country will permit,” applies to the last sentence of that paragraph, i. e., “and, moreover, have the right to be appointed as administrator of such estate,” or is only applicable to proceedings' prior to administration. Since the decision in Rocco v. Thompson, 223 U. S. 317 , the differences between the authorities seem to turn entirely on the construction of that clause. That case went to the Supreme Court of the United States upon a writ of error from the Supreme Court of California, the case below being reported as “In Re Estate of Ghio ” 157 Cal. 552 .

Ghio, an Italian subject, died intestate in California, leaving a personal estate. His wife and children lived in Italy. Rocco, the Consul-General of Italy for California and -some other States, and Thompson, the Public Administrator, each made application for letters of administration. The Supreme Court of California decided in favor of Thompson, and