"In case of the death of any citizen of Sweden in the United States or of any citizen of the United States in the Kingdom of Sweden without having in the country of his decease any known heirs or testamentary executors by him appointed, the competent local authorities shall at once inform the nearest consular officer of the nation to which the deceased belongs of the circumstances, in order that the necessary information may be immediately forwarded to parties interested. "In the event of any citizen of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the consul general, consul, vice consul general, or vice consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul general, consul, vice consul general, or vice consul, shall, so far as the laws of each country will permit, and pending the appointment of an administrator and until letters of administration have been granted, take charge of the property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate. "It is understood that when, under the provisions of this article, any consul general, consul, vice consul general, or vice consul, or the representative of each or either, is acting as executor or administrator of the estate of one of his deceased nationals, said officer or his representative shall, in all matters connected with, relating to, or growing out of the settlement of such estates, be in such capacities as fully subject to the jurisdiction of the courts of the country wherein the estate is situated as if said officer or representative were a citizen of that country and possessed of no representative capacity whatsoever." [37 Stat. at L. 1487.] The concluding words of the second paragraph of this article, "and, moreover, have the right to be appointed as administrator of such estate," are said to be adequate, not merely to make the foreign consul eligible for appointment, or to confer a right to administer where no one else has a better right, but to supersede the local law, and to confer a right of administration that is paramount and exclusive. To de: termine whether that is a sound interpretation of the convention, we must read its language in the light of those international usages which define the functions of consuls; in the light of the respective fields of state and of Federal jurisdiction as disclosed in our diplomatic history; and in the light of the consequences to follow if the local laws are to be thus supplanted. Considering, first of all, the mere words of the treaty, aside from extrinsic tokens of the purpose of the contracting parties, we find no expression of an intent that the consul's right to be administrator shall be exclusive, or that it shall supersede prior rights conferred by local law. "So far as the laws of each country will permit," the consul shall have the right, until letters of administration are granted, to take charge of the property of the deceased for the benefit of lawful heirs and creditors. Plainly this right is subordinate to the authority of the states. But the words, "so far as the laws of each country will permit," may fairly be construed as qualifying the whole sentence. The consul is not merely to have the right of temporary intervention; he is to have "moreover" the right, in case of need, to be appointed administrator. But both rights-the right of temporary intervention and the right of permanent administration granted in addition-are to be exercised only "so far as the laws of each country will permit." It is incredible that our government intended that the right of temporary custody for the purpose of preservation should be conditioned by the local laws, and that the larger right of permanent administration should be unconditional and absolute. Full effect is given to the language of the treaty if we construe it as adding the foreign consuls to the list of those eligible as administrators, so as to enable them to administer upon the estates of their fellow citizens when no one having a prior right under the local law is competent or willing to act. This construction is confirmed when we consider that it harmonizes the function of consuls under the treaty with the function of consuls under established international practice. What that practice is has been stated in decisions and confirmed in de claratory statutes and regulations. The function of consuls is to preserve derelict estates. When their countrymen die in foreign lands it is their duty to step in and guard the stranded property from waste. This right belongs to them, irrespective of express statute or treaty, by virtue of their office. Rocca v. Thompson, 223 U. S. 317, 331, 56 L. ed. 453, 458, 32 Sup. Ct. Rep. 207; Carpigiani v. Hall, 172 Ala. 287, 55 So. 248, Ann. Cas. 1913D, 651; The Bello Corrunes, 6 Wheat. 168, 5 L. ed. 233; Aspinwall v. Queen's Proctor, 2 Curt. Eccl. Rep. 241; Ferrie v. Public Administrator, 3 Bradf. 249; Seidel v. Peschkaw, 27 N. J. L. 427; Lanfear v. Ritchie, 9 La. Ann. 96; Re Fattosini, 33 Misc. 18, 67 N. Y. Supp. 1119; 5 Moore, Int. Law Dig. pp. 117, 118; and, particularly, Letter of Mr. in. Clay, Secretary of State, to the British, belonging to his countrymen deceased thereMinister, November 12, 1827, and Letter of He has no right, as a consular officer, Mr. Marcy, Secretary of State, to Mr. As- apart from the provisions of treaty, local pinwall, August 21, 1855, there cited. The law, or usage, to administer on the estate, custody thus acquired is, however, provi- or in that character to aid any other person sional. It yields to the superior right of in so administering it, without judicial aulegally constituted representatives. If there thorization. His duties are restricted to are such representatives, a consul's function guarding and collecting the effects, and to is limited to one of co-operation and inter- transmitting them, to be disposed of pursuvention. If there are no such representa-ant to the law of the decedent's state. 7 tives, it is his duty, so far as he is able, Ops. Atty. Gen. 274. It is, however, gento administer the estate to the extent of erally conceded that a consular officer may gathering it in and transmitting it to the intervene by way of observing the proceedjurisdiction of the domicil. This much he ings, and that he may be present on the should do, though the title of administrator making of the inventory." be withheld from him. If the title were to be given him, its purpose presumably would be rather to authenticate his powers than to enlarge the occasion for their exercise. The functions thus defined by usage have been confirmed by statute and regulations declaratory of the existing practice. By § 1709 of the United States Revised Statutes (Comp. Stat. 1913, § 3162), it is provided: "It shall be the duty of consuls and vice consuls, where the laws of the country permit: "First. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within their consulate, leaving there no legal representative, partner in trade, or trustee by him appointed to take care of his effects. "Second. To inventory the same with the assistance of two merchants of the United States, or, for want of them, of any others at their choice. "Third. To collect the debts due the deceased in the country where he died, and pay the debts due from his estate which he shall have there contracted. "Fourth. To sell at auction, after reasonable public notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts, and, at the expiration of one year from his decease, the residue. "Fifth. To transmit the balance of the estate to the Treasury of the United States, to be holden in trust for the legal claimant; except that if at any time before such transmission the legal representative of the deceased shall appear and demand his effects in their hands, they shall deliver them up, being paid their fees, and shall cease their proceedings." The convention with Sweden was intended to confirm the powers thus established by international comity, and to facilitate their exercise. Consuls are to have the right, where the estate is in peril, to intervene at once, and, if other representatives are lacking, they are, moreover, to have the right to be appointed administrators themselves. They are to have this right, not to displace others competent under local law, but the better to fulfil their inherent function as provisional conservators. If there is no qualified relative within the jurisdiction and no one else to whom our law gives the right of administration, the consular representative under this treaty may come forward and demand the grant of letters. This view is in harmony with the English practice as established by Stat. 24 and 25 Vict. chap. 121, § 4. It is in accord with the decision of the supreme court of Minnesota. tro-Hungarian Consul v. Westphal, 120 Minn. 122, 139, 141, 139 N. W. 300. It is not inconsistent with a decision of the United States district court for California, where the court, while holding the Swedish consul eligible as administrator, found it unnecessary to determine that all others were excluded. Re Holmberg (D. C.) 193 Fed. 260. It makes the phrase, "so far as the laws of each country will permit," equivalent to the phrase, "conformably with the laws of the country," construed in Rocca v. Thompson, supra. And, finally, it maintains the continuity of the purpose, revealed repeatedly in conventions and treaties throughout our history, to subject the rights of consuls to the requirements of local law. Aus If the convention means more than this, if it was intended to confer upon foreign consuls an exclusive and paramount right, strange consequences must follow. It is not restricted in its operation to the estates of aliens who have died in the United States The Consular Regulations of 1896 (§ 409) while temporarily sojourning here, but who provide as follows: "A consular officer is by the law of nations and by statute the provisional conservator of the property within his district have retained a domicil in their native lands. It applies equally to the estates of aliens who have their domicil in the United States. If an alien, settling in New York, were to build up a business, and, marrying, rear a, tates of deceased aliens by their consular family among us, the respondent would representatives; and, criticizing the principle have us hold that his children, citizens of of the decree, he said (5 Moore, Int. Law the state, would have to yield the right of Dig. p. 120): "The government of the administration to a foreign consul. In that United States has no power to establish by view the consul is not merely eligible as treaty provisions such as the above, in readministrator, but eligible to the exclusion lation to Brazilian subjects dying in any of everyone else, even the closest relatives of the states of our Union. Each state, of the dead man, and that, too, though the under our system, has exclusive jurisdiction entire estate is located here, and is here over the administration of property of perto be distributed. We are unwilling to be- sons, whether foreigners or citizens, dying lieve that such results were contemplated within its limits. . . . I conclude, therein concluding this convention. We hold it fore, that the United States cannot agree to be incredible that there has been at- to accept the Brazilian decree, above quoted, tached to the consular office a right that ex- as the basis of a reciprocal arrangement ceeds so greatly the occasion and the needs with that country: First, because the Fedof the consular function. Before adopting eral government has no power to impose a construction that will bring these conse- such regulations on the states; and, secquences to pass, we have a right to expect ondly, because the provisions in question, a far plainer manifestation of the will of if correctly understood, conflict with prothe national government than any that has visions which are settled rules of succesbeen afforded by the language now before sion as established in all states." us. The construction which we thus hold to be the true one finds additional confirmation when we consider the respective fields of state and national legislation, and the refusal of the Federal government, as disclosed in our diplomatic history, to trench upon the right of the states to administer the estates of those dying within their territorial limits. We are not required, for the decision of this case, to determine that the treaty-making power may not be so exercised as to qualify that right (Lanfear v. Ritchie, 9 La. Ann. 96; Mager v. Grima, 8 How. 490, 12 L. ed. 1168; Frederickson v. Louisiana, 23 How. 445, 16 L. ed. 577; Re Ghio, 157 Cal. 552, 37 L.R.A. (N.S.) 549, 137 Am. St. Rep. 145, 108 Pac. 516; AustroHungarian Consul v. Westphal, supra); and we express no opinion upon that subject. We find, however, that distinguished Secre taries of State have disclaimed both the existence of such a power and the intent to exercise it. Thus, in 1874, Mr. Fish in a letter to the Turkish minister said: "The estates of decedents are administered upon and settled in the United States under the law of the state of which the decedent was a resident at the time of his death, and on this subject, in the absence of any treaty regulations on the subject, interference in the disposition of such measures as may be prescribed by the law of the particular state in such cases is not within the province of the Federal authorities." Again, in 1889, Mr. Bayard, in a letter to the American minister in Brazil, considered a decree of the Brazilian government establishing the principle of reciprocity with reference to the administration of the es Again, in 1894, the Italian minister at Washington proposed that Italian consuls in the United States be authorized, as were the American consuls in Italy, to settle the estates of deceased countrymen. 5 Moore, Int. Law Dig. p. 122; Rocca v. Thompson, supra, at page 333 of 223 U. S. The Department of State replied that, in view of the fact that the administration of estates in the United States was under the control of the respective states, it was thought that the proposed international agreement should not be made. Other instances of the expression of a like policy are cited in the briefs of counsel. We call attention to these precedents, not as disproving the power of the Federal government, by virtue of its control over our international relations, to enlarge the functions of consuls in the administration of the estates of aliens, but rather as demonstrating the propriety of a construction of the treaty that will avoid the assumption of a power so frequently disclaimed. It is not to be lightly presumed that the government of the nation departed from the precedents of a century, and by an obscure clause in a long and involved article of this convention overturned its settled practice. We think, therefore, that the convention with Sweden did not create an exclusive right, and that we ought not to treat the dictum in Rocca v. Thompson, supra, as ruling to the contrary. That the learned justice who spoke for the court in that case did not attempt to construe the convention with deliberation or finality may be gathered from the fact that he placed it on a par, for the purpose of his illustration, with a treaty then terminated between the United States and Peru. Treaty of August, 1887; In 25 Stat. at L. 1444, art. 33. The latter | such a situation the derelict property treaty, however, was plainly not intended brought by chance within our own state, to give to consuls a right to administer to after the death of its owner on the high seas, the exclusion of the rights of relatives. Its should have been delivered to the Peruvian language is: "Until the conclusion of a consul as the provisional conservator, to be consular convention, which the high con- by him transmitted to the jurisdiction of tracting parties agree to form as soon as the domicil. may be mutually convenient, it is stipulated, that in the absence of the legal heirs or representatives, the consuls or vice consuls of either party shall be ex officio the executors or administrators of the citizens of their nation who may die within their consular jurisdictions, and of their countrymen dying at sea whose property may be brought within their district." The words which we have italicized demonstrate that even under that treaty there are times when the right of consuls to administer must give way to that of others. The description of the right as exclusive must be regarded as inadvertent. some cases, as for example, Re Baglieri, 137 N. Y. Supp. 175, the right of the foreign consul has been based in part on a treaty between the United States and Paraguay, concluded February, 1859 (12 Stat. at L. 1096). Article 10 of this treaty provides: "In the event of any citizen of either of the two contracting parties dying without will or testament in the territory of the other contracting party, the consul general, consul, or vice consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul general, consul, or vice consul, shall, so far as the laws of each country will permit, take charge of the property which the deceased may have left, for the benefit of his lawful heirs and creditors, until an executor or administrator be named by the said consul general, consul, or vice consul, or his representative." It is perhaps a sufficient answer to say that this treaty was before the supreme court when it decided Rocca v. Thompson, supra, and, though not mentioned in the opinion, must have been held unavailing to establish an exclusive right in favor of the There arose under the earlier treaty with Peru, similar to the one just quoted, a case which has been referred to in some opinions (see e. g., Re Lobrasciano, 38 Misc. Rep. 415, 421, 77 N. Y. Supp. 1040) as sustaining the exclusive rights of consuls under the treaty with Italy, but which, in our view, far from sustaining a position so extreme, is an apt illustration of the appropriate function of consuls in the administration of estates. The case is stated in Moore on International Arbitrations, vol. 4, p. 4390. One Vergil, a citizen of Peru, while return-Italian consul. The words, "so far as the ing from New York to his native land, after a brief sojourn in the United States, died at sea. The captain of the vessel brought his personal effects back to New York and gave them to the public administrator. The Peruvian minister complained that this was a violation of the treaty, which was applicable by its express terms where his countrymen died at sea and their property was afterwards brought within our jurisdiction. An arbitration, under a convention between the two governments, followed, and the commissioners sustained the position of Peru. There is little analogy between such a case and the one at bar. Vergil had never resided in New York, did not die in New York, and did not leave any property in New York. His personal effects were brought back here after his death, though they ought to have been delivered to his representatives in Peru; and the attempt of the public administrator to retain them was viewed as an unlawful assumption of jurisdiction. Hoes v. New York, N. H. & H. R. Co. 173 N. Y. 435, 442, 66 N. E. 119; Re McCabe, 84 App. Div. 145, 82 N. Y. Supp. 180, id. 177 N. Y. 584, 69 N. E. 1126. In laws of each country will permit," as found in that treaty, must in our judgment, be deemed to qualify the right of the consul general to name an executor or administrator, as well as his right of temporary custody. That they were, apparently, so construed by the supreme court in Rocca v. Thompson, supra, gives confirmation to our view that they had a like range and significance in the convention with Sweden. Our conclusion, therefore, is that the right of Giovanni D'Adamo to letters of administration is prior to that of the Italian consul, and that letters should issue to him accordingly. Since the consul acted as the representative of a foreign government, and under the authority of decisions of the surrogates of this state, he ought not to be charged with the costs of the proceeding. The order of the Surrogate's Court and that of the Appellate Division should be reversed, and the petition granted, without costs to either party. Willard Bartlett, Ch. J., and Werner, Hiscock, Collin, Hogan, and Miller, JJ., concur. 3. Where only a part of property levied upon is claimed as exempt, a demand by the execution defendant for the return of his exempt property, unaccompanied by any effort to make a selection of a part out of the entire lot, will not, in an action in replevin for possession of the exempt property subsequently selected and claimed, entitle such party to damages against the officer for the detention of such exempt property; the officer making no further detimes been important in determining whether a case should be included. The note does not include cases dealing merely with the question of selection of a homestead, or of the selection of the exempt property in bankruptcy proceedings, or of the person who can make the selection. As to right of debtor to assign exemptions or to delegate to another the right to III. Necessity of tendering other property, select exempt property, see note to Re 394. IV. Time for selection. a. In general; reasonable time, 395. b. Before sale, 397. I. Scope of note. This note deals only with the selection of the exempt property, and not with the right and duty to claim exemptions in general. Cases dealing with such questions as waiver of the right to exemptions, the time in general for making the claim that property is exempt, and the sufficiency of the claim, are excluded. There is, it is apparent, a distinction in many aspects of the question between a selection and a mere claim of exemptions, and this distinction has been constantly borne in mind in compiling the note. In general, cases have been included in which the court has referred to the question before it as one of selection, and those excluded in which the question has been discussed as a mere matter of claim of the exemptions. It is evident that in some instances these terms may have been inaptly used, and therefore cases in which the facts were somewhat similar to those in the note may be found to have been excluded. But, owing to the fact that a selection by the debtor, and not merely a claim of exemptions, is usually required, sometimes expressly by the statute, in case the debtor has more than the number or value of chattels allowed him as exempt, it is not generally possible to say that by the use of the term "selection" the court meant a mere claim. Therefore, the terminology used in discussing the question has some National Grocery Co. 30 L.R.A. (N.S.) 982. II. Selection in general. a. By debtor. It is well established that the debtor has the right, even where the statute does not expressly so provide, to select the property which he will retain as exempt from attachment or execution, where he has more property of the exempt class in number or value than he is entitled to claim as exempt. This right is also expressly granted by statute in many of the states. The officer, therefore, in levying on the property, must respect the selection by the debtor, if properly made, or he will render himself liable to an action by the debtor. The cases in the note generally recognize, at least inferentially, this right of the debtor to make a selection. The following cases, however, as well as others subsequently cited in this subdivision, expressly uphold the principle that the debtor has the right to make a selection (it being observed, as before stated, that the cases in the note generally recognize this right, and that it is expressly given by statute in many of the states). Noland v. Wickham, 9 Ala. 169, 44 Am. Dec. 435; Ross v. Hannah, 18 Ala. 125; Bray v. Laird, 44 Ala. 295; Brewer v. Granger, 45 Ala. 580; Williamson v. Harris, 57 Ala. 40, 29 Am. Rep. 707; Behymer v. Cook, 5 Colo. 395; Austin v. Swank, 9 Ind. 109; State ex rel. Farnham v. Willis, 33 Ind. 118: Parker v. Haley, 60 Iowa, 325, 14 N. W. 359; Grover v. Younie, 110 Iowa, 446, 81 N. W. |