that in regard to the matter of heirship, the disposable share and representation, the national law of the deceased should govern, regardless of the nature and situation of the property, but the principal countries which follow the rule of domicil were not represented.

In the few cases which have come before international commissions, the law of the last domicil was held to govern in the distribution of a personal estate. In a case where certain American heirs brought a claim against Great Britain on account of moneys of an English woman held by that government in trust for the heirs, it may be inferred from the argument that a duly qualified administrator should have appeared as claimant, the claim being dismissed on the ground that no case had been found where a government had interfered with questions of succession in other jurisdictions.2 The administrator has been held to be the proper party claimant on behalf of a personal estate,3 when the law of the domicil so provides, and especially when it appears that there are creditors of the estate. This is in accordance with the common law principle, adopted in most of the states, that the administrator takes the legal title to personal property, and not the heir or legatees.4

Under the French Spoliation claims, it was held that Congress, in giving preference to next of kin, intended that the next of kin living at the date of the appropriation act of 1891, and those determined as such by the statutes of distribution of the respective states of the domicil of the original sufferers are the persons entitled to an award, to the exclusion of creditors, legatees, and assignees, strangers to the blood.5 The Court of Claims merely determined the validity and amount of the claims, whereas Congress decided who is equitably

1 Brignone (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 719 (both laws recognized that succession opens at the place of the last domicil, where claimant died and his property was situated); Stevenson (Gt. Brit.) v. Venezuela, Feb. 13, 1903, ibid. 455 (domicil was place of death).

2 Cook (U. S.) v. Great Britain, Feb. 8, 1853, Moore's Arb. 2313, 2315.

› Bodemüller v. U. S., 39 Fed. 437; Baynum (U. S.) v. Mexico, March 3, 1849 and other cases, Moore's Arb. 1271. See also infra, § 287.

'Hamner's case, 13 Ct. Cl. 7, where a son, as distributee of his father's estate, was held not entitled to maintain a suit under the Abandoned or Captured Property Act.

5 Blagge v. Balch, 162 U. S. 439.

entitled to participate in the award.1 The same conclusion was reached by Justice Story in the celebrated case of Comegys v. Vasse, as to the function of the commissioners under the treaty of 1819 with Spain, passing upon claims against Spain.2

§ 286a. Survivorship of Claims.

Commissions have occasionally had to determine the class of claims which survived the death of a claimant. In one such case, the matter was held to be governed by the law of the domicil, according to which claims for bodily injuries passed to the heirs, but those for injuries. to feelings or reputation died with the person.3 In certain cases before the British-American commission of 1871, claims were allowed to personal representatives for injuries resulting in death, notwithstanding the fact that neither the law of the United States nor Great Britain awarded damages for death by wrongful act. In several cases, awards for death by wrongful act appear to have been made, without question, to the heirs of the deceased, without any contention that the claims should have been presented by an administrator.5 There has been a case, however, in which the right to obtain damages for personal injuries has been held to die with the person, and not to survive to the heir or administrator.

6

In claims arising out of injuries to person or property, it is the better practice for the administrator to represent the estate of the deceased, although the widow and children in their characters as such may in addition pursue their claims for losses.

1 Buchanan, Adm., v. U. S., Act of Jan. 20, 1885, 24 Ct. Cl. 74.

2 Comegys v. Vasse, 1 Pet. (26 U. S.), 193.

3 Metzger (Germany) v. Venezuela, Feb. 13, 1903, Ralston, 580.

4 Brain (Gt. Brit.) v. U. S., Feb. 8, 1871, Hale's Rep. 61, Moore's Arb. 3278; Sherman, ibid. 3278 (in this case there seems to have been no connection between the injury and the death, but in both cases claimant left a widow and minor children). On final hearing on the merits, the claim of Mrs. Sherman was disallowed. In McHugh, ibid. 3279, where claimant died unmarried without heirs, the U. S. demurrer was sustained and the claim disallowed. See Frazer's dissenting opinion, Hale's Rep. 240, Moore's Arb. 3279.

5 Heirs of Cyrus Donougho (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 3012; Di Caro (Italy) v. Venezuela, Feb. 13, 1903, Ralston, 769; Cesarino (Italy) v. Venezuela, ibid. 770.

• Plumer, Adm. (U. S.), v. Mexico, March 3, 1849, Opin. 182 (not in Moore).

EXECUTORS AND ADMINISTRATORS

§ 287. Rules Governing Right of Representation.

Persons acting in a representative capacity as executors or administrators are admitted as proper parties to invoke diplomatic protection on behalf of the estate of a decedent, provided they produce valid proof of their legal representative character, i. e., an exemplified copy of the will or letters of administration, and proof of their own identity and that of the decedent.

The right of consuls to act on behalf of deceased nationals is usually provided for in treaties or by the municipal law of the place where the person died or the property is situated. Upon the death of a foreigner without known or resident heirs or next of kin, a public administrator is often appointed to act for the estate.

International commissions usually provide in the rules governing their procedure how and by whom the claims of deceased persons shall be presented. In the statutes establishing domestic commissions, similar provisions are generally found. These requirements are strictly enforced, and not a few claims have been dismissed because the proper person had not appeared as claimant.

In the case of injuries to the person or property of the deceased which may be deemed debts due to his estate, the personal representative, usually the executor or administrator, and not the heir, has been regarded as the proper party claimant.2 The reason for this rule was stated by the domestic commission under the Act of March 3, 1849, as follows:

"The board has not the means of deciding questions touching the distribution of intestate estates, which depend upon local laws and involve inquiries as to domicil and many other topics of which we are furnished with no evidence. Besides, it may happen that the rights of creditors

2 Robinson (U. S.) v. Mexico, Act of March 3, 1849, Moore's Arb. 2389 (son of the deceased not proper party claimant, unless proof presented that son is executor or administrator); Plumer, Adm. (U. S.), v. Mexico, Opin. 182 (not in Moore); Baynum (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 1271; Wiltz (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2243; Thompson v. U. S., 20 Ct. Cl. 276 (Japanese Indemnity Fund Act of 1883).

are involved, who are entitled to be paid before any distribution can be made." 1

The administrator or executor must prove his legal right to appear in his representative capacity, by the production of a probated will or letters of administration, as the case may be. A widow, prosecuting the claim of a deceased husband, was on this ground, denied standing before a commission.2 Similarly, a "voluntary," but not a legal representative, was denied the right to recover.3

§ 288. Citizenship of Original Claimant Governs Jurisdiction.

It has been observed that the commission will look behind the administrator or person acting in a representative capacity to determine the nationality of the real claimant or beneficiary," although in some cases the investigation was limited to the citizenship of the person upon whom the injury was originally inflicted. Indeed, it has been expressly held that the nationality of the administrator was without effect upon the question. This indifference as to nationality does not apparently extend to an executor.

$289. Who May Act as Legal Representative.

The question as to who may properly represent a claimant, during life and after death, has occasionally come before commissions for determination. The representative must always show actual or presumptive authority from a living person he represents. A municipal

1 Baynum (U. S.) v. Mexico, March 3, 1849, Moore's Arb. 1271.

2 Underhill (U. S.) v. Venezuela, Feb. 17, 1903, Ralston, 45, 48. On her subsequently taking out letters of administration, the commission decided that under their rules of procedure, the case had been already closed.

3 Driggs (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2261.

4 Supra, p. 629.

5 Alvarez (U. S.) v. Mexico, July 4, 1868, Moore's Arb. 1353; Wiltz (U. S.) v. Venezuela, Dec. 5, 1885, ibid. 2246.

Willet (U. S.) v. Venezuela, Dec. 5, 1885, Moore's Arb. 2254; Peck (U. S.) v. Venezuela, ibid. 2257.

7 Halley, Adm., and Ferris, Adm., No. 205 and No. 214 (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 2242; Wiltz, Adm. (U. S.), v. Venezuela, Dec. 5, 1885, ibid. 2246. 8 Watson, executor of Meiggs (U. S.), v. Chile, Aug. 7, 1892, Moore's Arb. 2259. But the commission permitted an amendment of the memorial to show the citizenship of the heirs, of which permission no advantage appears to have been taken.

See instances before second court of Alabama claims, Moore's Arb. 4681, 4683.

3

corporation has been held not to be the representative of its citizens who might claim for themselves.1 The second Alabama Claims court held that a judgment could not be rendered in favor of a guardian.2 On the other hand, the owners of a ship were regarded as "the natural representatives of the master and seamen.' It has also been held that a party may when absent from the state of residence, file his memorial by his attorney in fact. It has been observed 5 that surviving partners, in accordance with the common law rule, have been permitted to prosecute partnership claims, although in one case where the surviving partner was an alien, his deceased citizen partner's interest was held to pass to the latter's personal representative. The administrator of a surviving partner has been allowed in appropriate cases to be substituted for the original claimant."

Under the Abandoned or Captured Property Act, by which proof of loyalty was a necessary condition of recovery, it was held that after the grant of letters of administration, when the seizure occurred, the administratrix, having title, could recover on proof of her loyalty, regardless of the disloyalty of her intestate," but that where the property was seized during the lifetime of the intestate, the latter's loyalty had to be proved.8

The second Court of Alabama Claims decided that where an administrator was appointed abroad, ancillary administration had to be taken out in the District of Columbia, as a condition for maintaining a claim.9

1

Under the French Spoliation Act of January 20, 1885, the Court

1 Reynosa (Mexico) v. U. S., July 4, 1868, Moore's Arb. 1356.

2 Ibid. 4681.

3 Emily Banning (U. S.) v. Mexico, July 4, 1868, ibid. 1356.

4 Dusenberg (U. S.) v. Mexico, ibid. 2157.

6 Coleman (Gt. Brit.) v. U. S., May 8, 1871, Hale's Rep. 98.

7 Carroll v. U. S., 13 Wall. 151. See also Newman v. U. S., 21 Ct. Cl. 205, in which the administrator in possession, and not the widow or next of kin had to prove loyalty. 8 Meldrim and Doyle v. U. S., 7 Ct. Cl. 597; Deeson v. U. S., 5 Ct. Cl. 526. So the disloyal administrator of a loyal intestate recovered award in Wilson v. U. S., 4 Ct. Cl. 559, 13 Wall. 128; ibid. in cases of disloyal executor, Taylor v. U. S., 5 Ct. Cl.

'Moore's Arb. 4681; see also Manning v. Leighton, 26 Atl. 258.