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.1

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.

• 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.1 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. 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. 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

3

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.

3 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.

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.

1

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, 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.*

3

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. The Court of Claims merely determined the validity and amount of the claims, whereas Congress decided who is equitably

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.

4 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."

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.

1 Supra, § 166.

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).