No. 48.] COLOMBIA. Mr. Abbott to Mr. Blaine. [Extract.] LEGATION OF THE UNITED STATES, Bogota, December 12, 1889. (Received January 13, 1890.) SIR: The consul at Colon, General Vifquain, has requested that the friendly offices of this legation may be employed in his behalf upon the following state of facts: Mrs. S. H. Smith, who, I presume, was a citizen of the United States, and who died in Colon, left, inter alia, two tenement houses, situated in Colon upon land leased of the Panama Railroad Company. The consul, acting under section 10, article 3, of the consular convention of 1850, undertook to settle her estate. In pursuance thereof, he sold the two houses at auction in July, 1888, and applied the proceeds in settlement of debt. On October 25, 1889, the local authorities intervened, and the local judge ordered all claims against the estate to be presented before his court and the houses to be sold in 180 days from that date. He, furthermore, put a receiver in possession of the houses and dispossessed the purchaser at auction sale, who was an American citizen. The details of the whole matter may be found in the letter of the consul to me, dated November 7, 1889, to which I refer, and a copy of which I inclose, excepting only the inclosures therein referred to, which are, I presume, on the files of the Department. The request of the consul is that I apply to this Government to cause a committee to be appointed to examine the claims he has paid, and, on their report that they are correct, to legalize all his doings in the premises. It seems plain that, if the consul has acted within the law, this Government should not be asked to legalize his doings, but rather a demand as of right should be made for the cessation of all interference by the local authorities. But, if the consul acted contrary to law or exceeded his authority, then the good offices of this legation may well be employed in his behalf. It becomes, then, important to decide, before acting in the matter: (1) Whether a consul of the United States has the right to take possession of, inventory, and sell the personal property of a citizen of his country dying in Colombia, under and by virtue of the provisions of section 10, article 3, of the consular convention; and (2) whether the houses in question are real or personal property. I do not deem myself justified in asking this Government to legalize Mr. Vifquain's acts, without instructions to that effect, as I should thereby admit that our consuls have no rights under the said section of the convention, an admission which might embarrass the Department in case it should hold that our consuls are entitled to settle estates in such cases. On the other hand, a remonstrance, on the ground of an infringement of treaty stipulations, would as seriously embarrass the Department in case it should hold that under the present laws of Colombia our consuls are not entitled to act in such cases. I have therefore concluded to submit the matter to the Department for instructions, with as full an explanation of the attitude of this Government and the local laws as I have been able to procure; and I shall await a reply by cablegram, or by mail, as may be deemed necessary. First. The question is as to a consul's right to settle estates of his countrymen dying here. This right depends upon the provisions of article 3, section 10, of the convention, which, after defining what a consul may do in such cases, provides as follows: But consuls shall not discharge these functions in those states whose peculiar legislation may not allow it. When the convention was made there were no states in Colombia. The country was a centralized Republic, and there was no general law defining the rights of consuls in such cases. The estates of deceased American citizens were settled as were those of Colombians until this convention came into force. Some years later, about 1858, New Granada became the United States of Colombia, in which were erected a number of partially independent States, which from January 1, 1860, made their own laws upon these and many other matters. Under date December 14, 1870, Mr. Fish, Secretary of State, in his No. 31 to Mr. Hurlburt, then minister here, directed him to remonstrate against the course of the local authorities in Panama in interfering with the administration by the then consul at that city upon the estate of one J. J. Landerer. The minister's remonstrance can not be found among the archives, but the long reply of the Government thereto, under date of April 28, 1871, after stating that information had been asked from the Panama authorities, goes on to claim that the whole matter must depend upon the law of that State; that the fact that that State was erected after the making of the convention does not imply, as "insinuated" by our minister in his remonstrance, that its laws can not deprive our consuls of the rights named therein; that Colombia recognizes the right of newly erected States in the United States to make prohibitory laws in this respect, as well as the right of the States existing in 1850, and claims reciprocity; that, "accepted this principle (of reciprocity), it is clear that the word states,' which is made use of in the convention, does not refer solely to those of North America, even although Colombia (then New Granada) was not publicly divided in sections of that name, and even although this part of legislation was not conceded to them." Then follows an argument upon the tense of the word "permitir," i. e., " allow," and the conclusion that "it appears beyond doubt that it was sought to express the desire of the contracting parties to leave to the states or sections of both Republics complete liberty to permit consuls to exercise the powers referred to or to deprive them of such powers." The note also states that the laws of Panama then existing conferred upon the courts alone the settlement of estates, be the deceased a foreigner or a native. I can find no further correspondence in this case, and so do not know the result, and this is the only case of which I have found any trace. I mention it as possibly throwing some light upon the probable atti tude of Colombia now. In 1885 the United States of Colombia became the Republic of Colombia, the States being degraded to departments, and deprived of the power to legislate, except upon minor matters. The national law in force in the whole Republic since July 22, 1887, provides that, if a deceased person shall leave foreign heirs, the consul of the nation of these heirs shall have the right to name the "curador," who shall have the custody and administration of the property. I inclose a copy and translation of a written statement of a Bogota lawyer, in which this law appears, together with its effect, leaving out the question of public treaties. I have consulted two lawyers who stand high in the profession, and they inform me that a "curador" is more or less what we call an administrator; that the estates of all foreigners are, outside of treaty stipulations, to be settled in the manner indicated in said law; and that foreign consuls have no other rights than that of nominating the "curador." Second. The second question is as to the character of the houses, whether they are real or personal estate. If they are real estate, then the consul has exceeded his authority. On this point I inclose a copy and translation of the opinion of Messrs. Escobar & Gutierrez, lawyers, in relation to the same, in which the law in relation to the matter appears. I have written Consul Vifquain to forward to the Department at once a statement of the terms of the lease under which the houses are permitted to stand upon the land of the railroad company. I will add that the first law in New Granada upon the rights of consuls in such cases was passed, substantially, in the form in which it exists in the civil code of Cundinamarca, as noted in inclosure No. 2, on May 29, 1850, 25 days after the signing of the consular convention, and continued to be the law of the Republic up to January 1, 1860. So that the statement in said inclosure, that the Spanish law was that in force up to that date, must be somewhat modified. The question as to the houses has never been raised in these courts, so far as my lawyers know, and, if it had been, it would throw no light upon the matter, as the courts are not bound by precedent. I trust that the suggestions herein made may be useful in the consideration of the case presented by the consul. I have, etc., [Inclosure 1 in No. 48.] JOHN T. ABBOTT. Mr. Vifquain to Mr. Abbott. CONSULATE OF THE UNITED STATES, SIR: I respectfully submit the following to your consideration: In July, 1888, I ordered sold at public auction by licensed auctioneers, after duly advertising, the houses belonging to the estate of the late Mrs. S. H. Smith. I had some doubt as to my right to selling [sic] those houses, yet, as claims were coming in at the consulate thick and fast, and there being no ready cash on hand, I wrote to the Department of State my dispatch No. 36 (inclosure No. 1), and I received in answer dispatch No. 30 (inclosure No. 2). This dispatch from the State Department means that, if, in it best for the estate to sell, that I should sell, and vice versa. ing collapse of the canal, which was visible enough then, I and so notified the Department of State in my dispatch No. 42 my judgment, I deemed Owing to the impenddeemed it best to sell, (inclosure No. 3). Evidently, nothing in the dispatch No. 30 of the Department of State intimated to me that I had not the right to sell; so I sold for $6,500 (Colombian silver) to Mr. Potevin, an American citizen. There was no will left, and, to my knowledge then, no heirs, and my belief was that the United States became the heir. Now, then, the prefect, the judge, and everybody knew that I was going to sell the houses through the instrumentality of "licensed Colombian auctioneers." This was notorious, and yet not the slightest word to me by them that I had not the right to sell. On the contrary, when I took possession of the houses, I asked the judge to protect me in my rights in case they were disputed, and he told me he would. The prefect told me that the tenants of the houses were compelled to pay the rent to Mr. Potevin. Taxes were assessed against Mr. Potevin, and he paid them. We even paid the 6 per cent. mil. required by law to be paid for transfers of property. All this was received; not a word said by anybody. Can I not, then, claim the tacit consent of the authorities to sell, even though I had not the legal right to do so? Thus great was my surprise when last February, nearly 8 months after Mr. Potevin had been in peaceable possession, collecting rents and paying taxes, the prefect of this place, one J. M. Pasos, " denounces" the property as vacant and demanding possession. Property by this time had become depreciated full 100 per cent. [sic]. Well, all of a sudden I received news, last May, that there were heirs, and I at once notified the judge, one E. Morales, to that effect. The judge told me "all right," and at once all proceedings were stopped until the heirs put in an appearance. I wrote to the United States to secure proper identification or presence of the heirs, but to this date I have had, as yet, no reply, yet I have some evidence that there are heirs. They live in Sacramento, Cal., and I have before me an informal copy of a power of attorney given by them to one James M. Pugh, a banker in Osceola, Mo., to guard the interest of the heirs in the real estate left by Mrs. S. H. Smith and lying in that part of the State of Missouri. However, the judge got tired of waiting, and, without consulting me or advising me, he issued a decree on October 25 last, ordering all the creditors of the estate to present their claims to his examination, giving them 180 days to do so, at the expiration of which time the houses would be sold by the court, and he at once put a receiver in charge, thus fully dispossessing Mr. Potevin. As soon as I learned of this, I called upon the judge in relation to his decree. I told him I had paid the creditors after a most rigid scrutiny of their claims; that I understood this to be one of my prerogatives as consul; that he was aware I had fought some bogus claims in his own court, and that I had won my case; and that I had paid the creditors with the moneys received by me through the sale of the houses to Mr. Potevin; that I had paid off a $4,000 (Colombian silver) mortgage on the houses and sent to the Treasury of the United States the 5 per cent. [sic] proceeds of the sales, in accordance with law; and that I had duplicate receipts for every payment made; that there were no more legal claims to my knowledge, and that I had acted in good faith all the way through. He answered that he knew it, but that the only way to legalize all that I had done was for every creditor to put in a petition into his court praying that I might be deemed the legal claimant for each credit; that at the end of 6 months he would sell the houses; and that then I would be paid the moneys I had disbursed. This, indeed, was a doubtful way for me to get the moneys I had paid, since the houses would not sell for one-half of what I had sold them for, besides placing in jeopardy the title of Mr. Potevin to the property. And I told him so; told him also that it was the most extraordinary thing on the part of the court and of the authorities "to be so kind" as to allow me to pay off the mortgage on the property and the creditors of the estate, and when I had done with all, and nearly 1 year afterwards, he and the authorities come in to claim the clear title to everything. I further informed him that I would at once write to my ambassador at Bogota, that the case might be placed by him before the proper cabinet officer, or even before the President, with the request that a committee be appointed to examine the claims I had paid, and, after examination, provided they were found correct, as they will be, to have an order from his court legalizing my sale and all. I suggest to you for that committee Mr. E. Morales, the judge himself, and Mr. Tracy Robinson, an American citizen here, the two to select another among the foreign consuls here. This is about the only way I see out of this without having recourse to serious diplomatic proceedings. To my mind, this seems to be a great wrong on the part of the authorities here. I believe I have acted legally. Surely, I have acted in accordance with instructions from the Department; but, even though my action had not been just exactly in accordance with law, why is it that no notice of my action is taken until I am through with it all and nearly 1 year afterwards? Can I not, from their silence, claim tacit consent? "and, their I respectfully refer you to article XII of the treaty of 1846: representatives, being citizens of the other party, shall succeed to their said personal goods or real estate, whether by testament or ab intestado, and they may take possession thereof." I also respectfully refer you to Wharton's International Law Digest, vol. 1, p. 782, Marcy to Aspinwall; and also p. 785, same volume, Cadwalader to Hopkins. I very much regret to give you this trouble, but I can see no way to an agreeable solution of this question without your intervention, and I hope you will at your early convenience take steps to satisfactorily arrange this, otherwise it will be a virtual confiscation of this property, as well as a very great loss to me. The settlements of estates are [sic] of no profit to a consul; they are very vexatious. I have done what the Colombian law requires shall be done-paid debts; the whole affair has been as open as daylight. I did not attempt to evade the laws. Moreover, there are the heirs in California, who are not even recognized by the court here. The claims I paid were looked into with much greater care than if the money had been my own, and the creditors were paid in full, what is seldom the case when courts take part in the proceedings. I hope soon to hear that the proper cabinet officer in Bogota will order Judge E. Morales to look into my accounts and to legalize my sale after finding things, as they should be, correct. My plan satisfies the judge. I am, etc., (Inclosure No. 1.] Mr. Vifquain to Mr. Rives. VICTOR VIFQUAIN. No. 36.] CONSULATE OF THE UNITED STATES, Colon, June 12, 1888. (Received June 25.) SIR: Heavy claims are presented to me against the estate of the late Mrs. S. H. Smith, and no money on hand to meet them. The actual property left here consists of three houses worth some $10,000. These houses are built on lots leased from the Panama Railroad. There is no character of real estate attached to the lands on which the houses are built, so far as the late Mrs. Smith is concerned, since the land can not be sold by the railroad company; it is leased yearly at a rental of $750 American gold. Yet these houses are tenements. They are of a perishable nature and have been so pronounced by the most respectable of merchants here. Moreover, property here is depreciating, and it costs money to keep houses in good repair. I respectfully ask whether, under the circumstances, I can proceed to sell these houses, it being certainly the best thing that can be done with them? I am, etc., VICTOR VIFQUAIN. (Inclosure No. 2.] No. 30.] DEPARTMENT OF STATE, SIR: I have to acknowledge the receipt of your dispatch No. 36, dated June 12, 1888, relating to the estate of the late Mrs. S. H. Smith. You must use your best judgment in the case, as the facts are much more completely know to you than they can be to the Department. It may, however, be suggested that perhaps it might be well to delay action for a while until it be ascertained definitely whether Mrs. Smith did not leave a will. The fact that none was found at Colon does not establish that she made none, for one may yet be found in the United States. Should such a will be produced and proved, and the executor qualify, it would relieve you from considerable embarrassment and responsibility. Again, it is understood here that houses at Colon are usually frail and inexpensive structures, costing little in the first instance, but producing in rent a large annual percentage. These facts would seem to lead to the conclusion that it would be well to postpone the sale of the houses as long as practicable. With regard to claims against the estate, it will be well to scrutinize them with the utmost care, as all the circumstances point to the suspicion, at least, that dishonest demands are likely to be trumped up, and that Mrs. Smith was not likely to leave large debts unpaid. |