
    Matter of the Probate of the Last Will and Testament of Valborg J. Peterson, Deceased.
    
      (Surrogate’s Court, Queens County,
    
    
      August, 1906.)
    Appearance—Authority ob right to appear—Authority of Danish CONSUL UNDER TREATIES.
    Consuls—Appearance in litigation affecting foreign interests. 'Surrogates’ Courts—Procedure and review—Notice and citation— WAIVER OF SERVICE AND DEFECTS.
    Under the most favored nation clause in the Treaty of April 26, 1826, between the United States of America and the kingdom of Denmark the' Danish consul cannot appear for an infant party to a proceeding for the probate of a last will and testament so as to confer upon a Surrogate’s Court in this State jurisdiction of such infant party without the issuing and service of a citation.
    Proceedings upon the probate of a will.
    Abbott & 'Coyne, for proponent.
   Noble, S.

This is an application 'by a consul of the kingdom •of Denmark to the United States of America, in the State of New York, for the probate of the last will 'and testament of a testatrix who, at the time of her death, was a subject of the kingdom of Denmark, the sole executor named in the will having died before the testatrix.

The sole 'heirs at law and. next of kin are the mother, a brother, a sister and a nephew of testatrix, all of whom reside in Copenhagen, Denmark, and are subjects of that kingdom.

Under the “ most favored nation clause,” in the Treaty of April 26, 1826,” between the United States of America and the kingdom of Denmark, the Danish consul claims the right to represent the parties in interest in this proceeding and to waive the issuance and service of citation in their behalf.

In the case of adult parties I do not question his right to appear to execute the necessary waivers and consents.

However, Finer Bundgaard, nephew of the testatrix, is an infant over the age of fourteen years. Under the laws of this State the only way in which a Surrogate’s Court can obtain jurisdiction over the estate of an infant is by the issuance and service of a citation in the manner prescribed by the statutes.

In the case of personal property, in the treaty between the United States and the king of Italy, section 22 of the commercial treaty of 1871 provides: “ The citizens of each of the contracting parties shall have power to dispose of their personal goods within the jurisdiction of the other by a sale, donation, testament or otherwise, and the representatives being citizens of the other party, shall succeed to their personal goods, whether by testament or ah intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country, wherein said goods are, shall be subject to pay in "like cases.”

Under that section the right of consuls to take possession, in behalf of subjects of their respective countries, of personal property and to transmit it to such countries for distribution in -accordance with 'the laws thereof is unquestionable.

Again, under the “most favored nation clause,” the treaty of 1853, between the Argentine Republic and the United States,, provides as follows: “ If any citizen of either of the two contracting parties shall die without will or testament, in any of the-territories of the other, the consul general or consul of the nation to which the deceased belonged, or the representative of such consul general or consul in his absence, shall have the right to. intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of’ the country, for the benefit of the creditors and legal heirs.”

Under this treaty the consul-general, or, in his absence, the-consul, is given the right “ to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.”

The provisions of these several treaties relate to personal property only, and the cases quoted in the brief of the learned counsel' for the proponent herein, to wit: Matter of Tartaglio, 12 Misc. Rep. 245; Matter of Fattosini, 33 id. 18; Matter of Lobrasciano, 38 id. 415; Matter of Davenport, 43 id. 513, as well as, the Massachusetts case reported in the Rew York Law Journal of April 16, 1906, are all administration cases and, therefore, decide only the right of a foreign consul to take possession of a-decedent’s personal property under the provisions of the treaty with his country.

I have found no case reported in which the right of a consul to waive the rights of an infant in a proceeding in a surrogate’s- or other court of this State is passed upon and, as it is not expressly covered by the treaty between the United .States and the-kingdom of Denmark, or any other country, the laws of the-State of New York must govern. These laws do not admit of an infant waiving any of its rights, and, of course, no one else has. any authority to do what the infant itself could not do.

Under these circumstances the infant party in this proceeding must he brought under the jurisdiction of the court through, the medium of a citation properly issued and served.

Let citation issue accordingly.  