porate claim on the part of the corporation or themselves. After dissolution of the corporation, however, they became equitable owners, in proportionate parts, of the corporate property, subject, however, to the payment of the corporate debts. Kunhardt and Co., therefore, were given a standing as the American owners of stock in a dissolved Venezuelan corporation but damages were not assessed in their favor owing to lack of evidence of the corporate liabilities.

2

In the Delagoa Bay arbitration and the Salvador Commercial Company case, a thorough examination into the question of the right of American stockholders in a foreign corporation to prosecute claims for their share of the losses of the corporation was precluded by the terms of the protocol, which made the shareholders the parties claimant. It may be said, however, that the foreign corporations in both cases were practically defunct, and the equitable interest of the stockholders could with some justice be supported, as it was, by their government. In the cases of Cerruti against Colombia and Alsop against Chile,1 claimants were members of a firm established under the laws of the defendant government and by its law regarded as a juridical person and national entity. President Cleveland in the first case and his Britannic Majesty in the second considered themselves empowered, under the terms of submission, to award indemnities to the individual firm members on whose behalf the claimant government, of which they were citizens, prosecuted the claim.

1 McMurdo (U. S.) v. Portugal, June 13, 1891, Moore's Arb. 1865 et seq., 1900, 903.

For. Rel.,

2 Salvador Commercial Co. (U. S.) v. Salvador, Dec. 19, 1901, For. Rel., 1902, 857, 862-873.

3 Cerruti (Italy) v. Colombia, Aug. 18, 1894, For. Rel., 1898, 245. The Government of Colombia protested against the award of President Cleveland, as arbitrator, so far as the debts of the firm of Cerruti and Co. were concerned, and in fact refused to execute that part of the award. Long and acrimonious negotiations ensued, although Colombia finally executed the award. The Cerruti claim is discussed by Bureau in his work Le conflit italo-colombien (affaire Cerruti), Paris, 1899, by Darras in 6 R. G. D. I. P. (1899), 533-552 and by Pierantoni in 30 R. D. I. (1898), 445-462. Controversies growing out of the execution of the award led to another arbitration between Italy and Colombia under a protocol of Oct. 28, 1909. See Award of July 6, 1911 in 6 A. J. I. L. (1912), 1018-1029, and Francis Hagerup's Report in 19 R. G. D. I. P. (1912), 268–274.

4 Alsop and Co. (U. S.) v. Chile, Dec. 1, 1909, 5 A. J. I. L. (1911), 1079.

CHAPTER V

SUCCESSORS IN INTEREST AND BENEFICIAL OWNERS

§ 283. Effect of Citizenship of Derivative Claimants.

The rules of municipal law authorizing successors in interest of original claimants to invoke the rights and pursue the remedies of their predecessors are tempered in the prosecution of international claims by such questions as the national status of the successors and their rights under international conventions to represent the original claimants. The rules of the Department of State also require that a person who claims in the right of another shall show "whether such other was a citizen when the claim had its origin." Among successors in interest, special consideration will be given (a) to heirs, (b) to executors and administrators, including personal representatives, and (c) to assignees and receivers. The rights of beneficial owners, including creditors, mortgagees and insurers, will be considered separately.

HEIRS

§ 284. Citizenship of Decedent and Heir Usually Required.

Some consideration has already been given, under the head of widows and children,1 to the right of heirs to institute international claims in their own behalf. No uniform rule in the matter can be invoked, but general practice sanctions the requirement that the heir prove both his own and the decedent's citizenship as a necessary condition to diplomatic interposition in his behalf. The failure of proof under either head will usually deprive the claim of diplomatic cognizance, although cases have been cited in which widows have, regardless of their own citizenship, obtained diplomatic relief for injuries inflicted upon their deceased husbands. As a general rule, however, to justify

1 Supra, § 268.

2 Ibid.

the presentation of a claim, the heirs must be of the same nationality as the ancestor, the original claimant.

In case the claimant dies in the course of diplomatic negotiations. for redress, the prosecution of the claim will not usually cease, provided the right of action is deemed to survive. This is so, on principle, regardless of proof of heirs, because the claim had already assumed a national character. In the Shields case against Chile, in which the death, some years after the claim was first instituted, of a British seaman who had served on an American vessel, may be considered to have divested the United States of all interest in the claim, a protocol of agreement to settle the claim was concluded between the United States and Chile on behalf of the heirs of Shields.1

§ 285. Decisions of International Tribunals of Arbitration.

In determining the right of heirs to appear as claimants before international commissions, it is essential to examine the jurisdictional clause of the protocol or treaty under which the commission acts. For example, the fact that article 2 of the treaty of 1880 between France and the United States provided for the examination of claims "presented to [the Commission] by the citizens of [France]" was held to justify the rejection of the claim of Wiltz, public administrator of the estate of a French citizen, in the absence of proof of the French citizenship of the real and beneficial claimants who through him actually presented the claim.2 In fact, under the general form of protocol for the adjudication of the claims of the citizens of one country against the other, international tribunals have generally held that not only the deceased but the actual beneficiary must come within the jurisdiction of the commission in the matter of citizenship. Heirs, therefore, have been required to establish their jurisdictional citizenship independently of their ancestor, failing which their claims have been rejected. When the claim was national in origin, but passed into the

1

May 24, 1897, Malloy's Treaties, I, 190; $3,500 was paid to the U. S. For. Rel., 1900, 67.

2 Wiltz (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2243, 2246; Mrs. Grayson, Adm. (Gt. Brit.), v. U. S., Feb. 8, 1871, Hale's Rep. 19 (only British-owned portion of claim allowed, claim on part of widow, American citizen, being disallowed).

3

3 Lizardi (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 1353; Maxan's Heirs (U.S.)

hands of an alien heir, it has usually been dismissed on the principle that a claim must be national in origin as well as at the time of presentation, although we shall presently notice certain exceptions to this rule. When the claimant was the heir and himself a citizen, but the person who sustained injury was an alien, and not within the jurisdiction of the commission, the claim was likewise rejected under the general principle, and on the special ground that an heir could not inherit more rights than his ancester possessed.2

In several cases where the claimant died after the presentation of his claim, and before the award, his rights were considered to have vested in his heirs, regardless of their own nationality.3 In the Betancourt case before the Spanish Treaty Claims Commission, claimant died intestate in 1904, i. e., after the ratification of the treaty of Paris, and his personal representative was substituted. The original claimant having been a citizen of the United States, the commission made an award to the "personal representative," regardless of the nationality of the heirs, who indeed were in part Spanish.4

Contrary to the general rule that an international tribunal will look behind the executor or administrator representing the estate of a deceased national and seek to ascertain the nationality of the v. Mexico, ibid. 2485; Wulff (U. S.) v. Mexico, ibid. 1354 ("direct recipients of the award" must be citizens); Chopin (France) v. U. S., Jan. 15, 1880, ibid. 2506; Levy (France) v. U. S., ibid. 2514; Heirs of Massiani (France) v. Venezuela, Feb. 19, 1902, Sen. Doc. 533, 59th Cong., 1st sess., 211, 242; Heirs of Maninat, ibid. 44, 75; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 438, 455; Poggioli (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 847, 866; Brignone (Italy) v. Venezuela, ibid. 710, 719; Miliani (Italy) v. Venezuela, ibid. 754, 762. See also Burthe v. Denis, 133 U. S. 514, and Mrs. Bodemüller's case, 39 Fed. 437 (dictum). Before the Southern Claims Commission, heirs had to establish their jurisdictional loyalty, independently of their ancestor. Second Gen. Rep., H. Misc. Doc. 12, 42nd Cong., 3rd sess., 3.

1 Infra, § 306 et seq.

2 Foulke, Adm. (Cisneros), U. S. v. Spain, Feb. 12, 1871, Moore's Arb. 2334; Diaz v. U. S., No. 300, Span. Tr. Cl. Com. (claimant's father died before treaty of 1898). Briefs, etc., XXIV, 136. See Ralston's remarks in Corvaia (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 782, 809.

3 Chopin (France) v. U. S., Jan. 15, 1880, Moore's Arb. 2506, Boutwell's Rep. 88; Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, Ralston, 438, 455.

4 Betancourt v. U. S., No. 466, Fuller's Special Rep., 1907, p. 44. See Mr. Fuller's explanatory note.

heirs or creditors, there have been some cases in which the commission has not apparently considered it necessary to inquire into the nationality of the prospective beneficiaries of an award, but has taken jurisdiction on the ground that the deceased national came within the terms of the protocol-and this without regard to the nationality of the executor or administrator. There is much to be said in support of this view. If it is the injury to the state in the person of its citizen which justifies diplomatic interposition, the mere fact that the claim subsequently by operation of law passes into the hands of alien heirs would not seem to modify the injury to the state. Moreover, the award when received is a national fund, to be distributed by the government as it deems proper. It might, in its discretion, exclude aliens from participation in the distribution.

§ 286. Law Governing Distribution of Estate.

The determination of the persons who are heirs and the rule which shall govern in the distribution of a decedent's estate is in AngloAmerican law and in a few of the continental countries governed by the law of the domicil of the decedent, but is in most civil law countries governed by his nationality.2 The confusion to which these conflicting principles have given rise has been pointed out in a number of works on the municipal law of succession.3 In an unratified convention, drafted at The Hague, July 17, 1905, to regulate conflicts of law in the matter of succession, the majority of the countries of Europe agreed

1 Halley, Adm. (Gt. Brit.), v. U. S., Feb. 8, 1871, Hale's Rep. 20, Moore's Arb. 2241 (the opinion is not altogether clear). See dissenting opinion by Frazer, 2242; Willet, Adm. (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2254; Executor of Peck (U. S.) v. Venezuela, ibid. 2257. See also Alsop (U. S.) v. Chile, Dec. 1, 1909, U. S. Counter Case, 191-192, Award July 5, 1911. Semble, Piton (France) v. Venezuela, Feb. 19, 1902, S. Doc. 533, 59th Cong., 1st sess., 462.

2 Bentwich, Norman, The law of domicil in its relation to succession, London, 1911, 189 et seq.

Contuzzi, F. P., Il diritto ereditario internazionale, Milano, 1908; Raison, E., Traité des successions d'étrangers, Paris, 1911; Pilet, Raymond, Des successions dans le droit international privé, Rennes, 1885; Burgin, E. L., Administration of foreign estates, London, 1913; Bridel, Louis, Succession légale comparée, Tokio, 1909; Fildermann, W., Les successions en droit comparé, Paris, 1909; Roguin, E., Traité de droit civil comparé; Les successions, v. IV and V, Paris, 1912.