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them existed at the time of it, they should be received and submitted to the jury under the proper charge. The question of remoteness, to be decided in the first instance by the trial judge, as already stated, must depend upon all the considerations, including time, the character of the evidence and all the sur

rounding circumstances which in his opinion ought to have a bearing upon its worthiness to be brought into the consideration and determination of the matter in contention. State v. Kelly, 77 Conn. 266, 58 Atl. 705. Upon principle and under the best-reasoned judicial decisions, the ruling of the trial court under review was correct. Thayer v. Thayer, 101 Mass. 111, 100 Am. Dec. 110; Sullivan v. Hurley, 147 Mass. 387, 18 N. E. 3; Taft v. Taft, 80 Vt. 256, 67 Atl. 703, 130 Am. St. Rep.

984, 12 Ann. Cas. 959; State v. Sebastian, 81 Conn. 1, 72 Atl. 141; State v. Bridgman, 49 Vt. 202, 24 Am. Rep. 124; State v. Williams, 76 Me. 480; People v. Gray, 251 Ill. 431, 96 N. E. 268; State v. More, 115 Iowa, 178, 88 N. W. 322; State v. Leek, 152 Iowa, 12, 130 N. W. 1062; People v. Koller, 142 Cal. 621, 76 Pac. 500; State v. Markins, 95 Ind. 464, 48 Am. Rep. 733; State v. Hibbard, 76 Kan. 376, 92 Pac. 304; Lanphere v. State, 114 Wis. 193, 89 N. W. 128; Leedom v. State, 81 Neb. 585, 116 N. W. 496; Sykes v. State, 112 Tenn. 572, 82 S. W. 185, 105 Am. St. Rep. 972; State v. Brown, 85 Kan. 418, 116 Pac. 508; State v. Sysinger, 25 S. D. 110, 125 N. W. 879, Ann. Cas. 1912B, 997; Levy v. Territory, 13 Ariz. 425, 115 Pac. 415. A scrutiny of the record and briefs discloses no other exception which requires consideration in this opinion. The judgment appealed from should be reversed, and the judgment of conviction affirmed.

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[2. COUNTIES (§ 206*)-CLAIMS-AUDIT-COLLATERAL ATTACK.

claim against a county is not open to collateral An audit by a board of supervisors of a attack, in the absence of fraud or collusion.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 322, 323, 325-330; Dec. Dig. 206.*]

3. COUNTIES (§ 204*)-CLAIMS—“AUDIT.” against a county, consists of the allowance, or The term "audit," as applied to claims partial or total disallowance, of a claim after hearing and examination thereof.

[Ed. Note. For other cases, see Counties, Cent. Dig. §§ 312, 316-321, 337; Dec. Dig.

204.*

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Cent. Dig. §§ 328-334; Dec. Dig. § 205.*] [Ed. Note. For other cases, see Counties, 5. COUNTIES (§ 206*)-CLAIMS-ENFORCEMENT -REMEDIES.

One having a claim against a county may either sue the county directly thereon, or preand if the latter course is pursued and the sent it to the board of supervisors for audit, board refuses to audit it, then the claimant may compel audit by mandamus, or bring an action directly against the county, but if the board passes on the claim and disallows it in whole or in part the claimant's remedy is limited to certiorari.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 322, 323, 325-330; Dec. Dig. 206.*]

Appeal from Supreme Court, Appellate Division, First Department.

Action by the New York Catholic Protectory against Rockland County. An order of the Special Term, granting plaintiff's motion for judgment on the pleadings, was reversed (159 App. Div. 455, 144 N. Y. Supp. 552), and plaintiff appeals by permission on a certified question. See 161 App. Div. 926, 146 N. Y. Supp. 1102. Order of Appellate Division affirmed.

Joseph T. Ryan, of New York City (Forbes J. Holland, of New York City, on the brief), for appellant. George A. Blauvelt, of New York City (Joseph A. Warren, of New York City, on the brief), for respondent.

MILLER, J. The question certified is

1. COUNTIES (§ 210*)-ACTION AGAINST COUN- whether the complaint states facts sufficient TY-RIGHT TO SUE-STATUTES.

Laws 1909, c. 16, § 4 (Consol. Laws, c. 11), authorizing the bringing of actions or special proceedings by or against counties in the name of the county, authorized the institution and maintenance of a suit against a county by a religious institution to recover for the care, maintenance, education, and support of minor children committed to such institution by the

judicial officers of the county.

[Ed. Note.-For other cases, see Counties, Cent. Dig. §§ 339, 340; Dec. Dig. § 210.*]

to constitute a cause of action. The action is brought to recover for the care, maintenance, education, and support of certain minor children, committed to the plaintiff's institution by judicial officers of the defendant. [1] The County Law expressly provides for

the bringing of actions or special proceedings

by or against the county in the name of the county (Laws of 1909, c. 16, art. 2, § 4); and we regard it as now settled by authority that

an action may be maintained against a county. Freel v. County of Queens, 154 N. Y. 661, 49 N. E. 124. A review of the statutory law on the subject will be found in the opinion of Mr. Justice Goodrich in Kennedy v. County of Queens, 47 App. Div. 250, 62 N. Y. Supp. 276. He pointed out that the provision of the Revised Statutes requiring accounts for county charges to be presented to the board of supervisors for audit was repealed by the County Law, passed in 1892. Chapter 686. The question in this case is whether the plaintiff pleaded itself out of court by alleging that it presented its claim to the board of supervisors of the defendant, and that the latter "did, as plaintiff is informed and believes, on or about the 22d day of January, A. D. 1912, wholly disallow said claim."

[2-4] It is well settled that an audit by a board of supervisors is not open to collateral attack in the absence of fraud or collusion. People ex rel. Johnson v. Supervisors of Delaware County, 45 N. Y. 196; Osterhoudt v. Rigney, 98 N. Y. 222; Foy v. County of Westchester, 168 N. Y. 180, 61 N. E. 172; People v. Sutherland, 207 N. Y. 22, 100 N. E. 440. An audit may consist either of the total disallowance of a claim or of its allowance in whole or in part. To "audit" is to hear and examine and includes both the allowance and disallowance of a claim. People ex rel. Brown v. Board of Apportionment, 52 N. Y. 224; People ex rel. Myers v. Barnes, 114 N. Y. 317, 20 N. E. 609, 21 N. E. 739. The liability of the county in this case depended on questions of fact, and an erroneous determination of the board of supervisors could only be corrected on a review by certiorari. The disallowance of the claim by the board of supervisors is therefore conclusive on the plaintiff in this action.

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Under Code Civ. Proc. § 2660, providing that administration in case of intestacy might "be granted to the relatives of the deceased enwill accept the same in the following order: titled to succeed to his personal property, who 5. To the brothers"-where an Italian subject died intestate in New York leaving a wife and children in Italy, and a brother resident in New York, the wife and children not being qualified to act as administrators, the brother was qualified and entitled to letters, though he would not be entitled to any part of the intestate's personal property.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 43-59; Dec. Dig. § 17.*]

2. EXECUTORS AND ADMINISTRATORS (§ 24*)RIGHT OF ADMINISTRATION - FOREIGN SUBJECTS-RIGHT OF CONSUL-TREATIES.

The Italian treaty of May 8, 1878 (20 Stat. 732, art. 17), contains the most favored nation clause, and the treaty between the United States and Sweden June 1, 1910 (37 Stat. 1487, art. 14, par. 2), provides that in the event of any [5] The plaintiff relies upon the case of citizen of either of the contracting parties dying Kennedy v. County of Queens, supra. That intestate in the territory of the other contractwas an action on a contract which the com- ing party, the consul general, consul, vice consul general, or vice consul of the nation to which plaint alleged the board of supervisors had the deceased may belong, or, in his absence, the by resolution refused to recognize. Such re- representative of such consul general, consul, fusal was equivalent to a refusal to audit, vice consul general, or vice consul, shall, so far which is very different from an audit and dis- as the laws of each country will permit and pending the appointment of an administrator allowance of a claim. Doubtless a person hav- and until letters of administration have been ing a claim against a county may either sue granted, take charge of the property left by dedirectly upon it or present it to the board of ceased for the benefit of his lawful heirs and supervisors for audit. If the latter course is creditors, and, moreover, have the right to be appointed as administrator of such estate. pursued and the board of supervisors refuse Held, that the clause "so far as the laws of to audit it, two courses are still open; one each country will permit" qualified the whole to compel an audit by mandamus (People ex sentence, conferring on consular officers the rel. Thurston v. Town Auditors of Elmira, 82 tion of the estate according to the local laws, right of temporary custody for the preservaN. Y. 80), the other to bring an action directly but does not confer on them an absolute right against the county. But if the board of su- to administration as against the right of one pervisors pass upon a claim and disallow it, otherwise qualified under the local laws and either in whole or in part, the sole remedy subject died intestate in New York, leaving a applying therefor, and hence, where an Italian is to review the determination, if erroneous, wife and children, who were residents of Italy, by certiorari. If, as a matter of fact in this and a brother, a resident of New York and case, the board of supervisors refused to ex-qualified to administer, the Italian consul was not entitled to letters in preference to the amine the claim on the merits, the draftsman brother. of the complaint was unfortunate in the use of language. Under the complaint as it stands the plaintiff has no cause of action For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 106 N.E.-6

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 132-140; Dec. Dig. § 24.*]

3. AMBASSADORS AND CONSULS (§ 5*)-FUNC-| They are not qualified to act as his adminisTION-DUTY TO PRESERVE ESTATES. trators. The brother, under the law as it The function of consuls is to preserve dere- stood when letters were refused to him, and lict estates, it being their duty when their countrymen die in foreign lands to guard the property from waste, their right to do so belonging to them by virtue of their office, irrespective of treaty or decree and existing until there is a legally constituted representative, when the function is limited to one of co-operation and intervention.

[Ed. Note.-For other cases, see Ambassadors and Consuls, Cent. Dig. §§ 12-15; Dec. Dig. § 5.*]

Appeal from Supreme Court, Appellate D1vision, Fourth Department.

as it stands to-day, is qualified to act, unless his lack of interest in the estate disqualifies him. We think that it does not.

[1] The law which was in force when this proceeding was determined by the surrogate, and which will remain in force until September 1, 1914, was section 2660 of the Code of Civil Procedure, as amended by chapter 403 of the Laws of 1913. We think that the proper construction of that section is established by the case of Lathrop v. Smith, 35 Barb. 64; Id., 24 N. Y. 417. That case construed a section of the Revised Statutes (2 R. S. p. 74, § 27), which was later incorporated as section 2660 into the Code of Civil Procedure (Laws 1893, c. 686). Some slight verbal changes were made at that time in the process of revision. Whether these changes of form effected a change of meaning is a Re-question in respect of which there has been

Judicial settlement of the estate of Carmine D'Adamo, deceased. From an order of the Appellate Division (159 App. Div. 40, 144 N. Y. Supp. 429), affirming a surrogate's order (141 N. Y. Supp. 1103), denying a petition for the revocation of letters of administration on decedent's estate, granted to the Italian consul, decedent's brother, Giovanni D'Adamo, applicant for letters, appeals.

versed.

Gilbert S. Woolworth, of Watertown, for appellant. Thomas F. McDermott, of New York City, for respondent.

Supp. 452. We hold that the meaning remained the same, and that the case of Lathrop v. Smith, supra, is applicable to section 2660 of the Code as it was to the Revised Statutes. We content ourselves with stat

a conflict of decision in the courts below. Matter of Wilson, 92 Hun, 318, 36 N. Y. Supp. 882; Matter of Campbell, 123 App. Div. 212, 108 N. Y. Supp. 281; Matter of Wolff, 161 App. Div. 255, 146 N. Y. Supp. CARDOZO, J. Carmine D'Adamo, a citi- 495; Matter of Lowenstein, 29 Misc. Rep. zen and subject of the kingdom of Italy, died 722, 62 N. Y. Supp. 819; Matter of Seymour, in this state in December, 1912. His resi- 33 Misc. Rep. 271, 68 N. Y. Supp. 638; Matdence was in the town of Le Ray in the counter of Patten, 80 Misc. Rep. 482, 142 N. Y.. ty of Jefferson. He left a wife, a child, a father and a mother, who resided in Italy. He left a brother, Giovanni, a resident of New York. Letters of administration upon his estate were granted by the surrogate to the Italian consul. Thereafter Giovanni D'Ada-ing our conclusion in this respect, because of mo and one Fred W. Mayhew, the treasurer of Jefferson county, joined in a petition that the letters granted to the Italian consul be revoked, and that the petitioners be appointed administrators in his stead. This application was denied by the surrogate, and the order was affirmed at the Appellate Division. The county treasurer has acquiesced in that decision. The brother, Giovanni D'Adamo, alone appeals.

amendments which have this year been adopted by the Legislature. By chapter 443 of the Laws of 1914, which will take effect on September 1, 1914, section 2660 of the Code of Civil Procedure has become section 2588, and radical changes have been made in it. The result of these amendments will be to establish a new rule hereafter. Discussion of the reasons for our construction of the old rule would therefore serve no useful purThe case presents two questions: The one pose. Confining ourselves to the statute as as to the interpretation of the statutes of our it read before the amendment of this year, own state; the other as to the interpretation we hold that unless a treaty stands in the of treaties between the United States and way, the brother, Giovanni D'Adamo, is enforeign nations. The first question is wheth-titled to the grant of letters. er, under the Code of Civil Procedure as it stood in June, 1913, when the order under review was made, the brother of the dead man had the right of administration. The second question is whether the treaty between the national government and Italy, construed in connection with a later convention with Sweden, has taken the right away. 1. It is urged in support of the surrogate's decree that because the decedent's brother was not entitled to share in the estate, he was not entitled to administer upon it. The decedent left a wife and an infant child in Italy. His entire estate belongs to them.

[2] 2. This brings us to our second question: Is there any treaty provision that confers a prior right on the Italian consul? By article 17 of the Consular Convention of 1878 between the United States and Italy"the respective consuls general, consuls, vice consuls and the consular agents, as likewise the consular chancellors, secretaries, clerks or attachés, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favored nation."

It is said by the Italian consul that the Consular Convention of 1911 between the

the right to take and administer the property." In developing this argument Mr. Justice Day, who spoke for the court, said:

United States and Sweden. confers upon to a proceeding already begun, rather than Swedish consuls the right to administer, to the exclusion of all other persons, upon the estates of their nationals dying in the United States, and it is insisted that under the most favored nation clause a like privilege must be held to be enjoyed by the representatives of Italy. We must therefore determine whether the convention with Sweden, properly construed, confers upon the representatives of that government the exclusive right asserted.

The extent to which our local law of administration has been displaced by foreign treaties has been, for some years, an unsettled question in this state. The representatives of Italy and of other nations at first based their pretensions upon article 9 of the Argentine treaty of 1853 (10 Stat. 1009), which gave to the consular officers of the respective countries the right

"to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs."

The effect of that treaty was the subject of conflicting decisions, both by the Surrogates' Courts and the Appellate Division in this state, and by courts of other states. Matter of Logiorato, 34 Misc. Rep. 31, 69 N. Y. Supp. 507; Matter of Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119; Matter of Lobrasciano, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040; Matter of Scutella, 145 App. Div. 156, 129 N. Y. Supp. 20; In re Wyman, 191 Mass. 276, 77 N. E. 379, 114 Am. St. Rep. 601; Matter of Ghio [Rocca v. Thompson] 157 Cal. 552, 108 Pac. 516, 37 L. R. A. (N. S.) 549, 137 Am. St. Rep. 145. The question came before the Supreme Court of the United States in Rocca v. Thompson, 223 U. S. 317, 32 Sup. Ct. 207, 56 L. Ed. 453. The Supreme Court of California sustained the prior right of the public administrator, and refused to issue letters of administration to the Italian consul. 157 Cal. 552, 108 Pac. 516, 37 L. R. A. (N. S.) 549, 137 Am. St. Rep. 145. The Supreme Court of the United States upheld the refusal. In reaching that conclusion, the court left open the question whether the federal government could constitutionally, in the exercise of the treaty-making power, supplant the commonwealth laws regulating the administration of estates. 223 U. S. at page 329, 32 Sup. Ct. 207, 56 L. Ed. 453. Assuming such a power, the court held that:

"There was no purpose in the Argentine treaty to take away from the states the right of local administration provided by their laws, upon the estates of deceased citizens of a foreign country, and to commit the same to the consuls of such foreign nation, to the exclusion of those entitled to administer as provided by the local laws of the states within which such foreigner resides and leaves property at the time of decease." 223 U. S. 334, 32 Sup. Ct. 211, 56 L. Ed. 453.

The court pointed out that the only privilege conferred was one of intervention, and that by this was meant the right "to enter in

"Had it been the intention to commit the administration of estates of citizens of one counof the foreign nation, it would have been very try, dying in another, exclusively to the consul easy to have declared that purpose in unmistakable terms."

And he cited as instances of such a purpose a treaty with Peru, made in August, 1887 (25 Stat. at Large, 1444, art. 33), but terminated in November, 1899, and a convention with Sweden proclaimed in March, 1911, after the decision by the courts of California of the case which he was then reviewing. These observations with reference to the effect of the convention with Sweden are plainly obiter; but they have been seized hold of as supporting the contention that since the adoption of that convention in March, 1911, the consuls of Sweden, and hence the consuls of Italy, have the exclusive right to administer upon the estates of their respective citizens dying in the United States. It has been so held by the Appellate Division in this case and by the Surrogates' Courts in other cases. Matter of Baglieri, 137 N. Y. Supp. 175; Matter of Lombardi, 78 Misc. Rep. 689, 138 N. Y. Supp. 1007; Matter of Riccardo, 79 Misc. Rep. 371, 140 N. Y. Supp. 606; Matter of Madaloni, 79 Misc. Rep. 653, 141 N. Y. Supp. 323. The contrary has been held in a well-considered opinion by the Supreme Court of Minnesota. Austro-Hungarian Consul v. Westphal, 120 Minn. 122, 139, 141, 139 N. W. 300.

The language of the treaty which is said to have brought about this sweeping change must be kept before us. It is as follows (Convention between United States and Sweden, June 1, 1910, article 14):

"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 citizens 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 which the deceased may belong, or, in his abconsul general, or vice consul of the nation to sence, 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

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 determine 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.

representative shall, in all matters connected | consuls is to preserve derelict estates. When with, relating to, or growing out of the settle- their countrymen die in foreign lands it is ment of such estates, be in such capacities as their duty to step in and guard the stranded fully subject to the jurisdiction of the courts of the country wherein the estate is situated property from waste. This right belongs to as if said officer or representative were a citi- them, irrespective of express statute or treazen of that country and possessed of no repre ty, by virtue of their office. Rocco v. Thompsentative capacity whatsoever." son, 223 U. S. 317, 331, 32 Sup. Ct. 207, 56 L. Ed. 453; Carpigiani v. Hall, 172 Ala. 287, 55 South. 248, Ann Cas. 1913D, 651; The Bello Corrunes, 6 Wheat. 168, 5 L. Ed. 229; Aspinwall v. The Queen's Proctor, 2 Curt. Eccl. R. 241; Ferrie v. Public Administrator, 3 Bradf. Sur. 249; Seidel v. Pesckaw, 27 N. J. Law, 427; Lanfear v. Ritchie, 9 La. Ann. 96; Matter of Fattosini, 33 Misc. Rep. 18, 67 N. Y. Supp. 1119; 5 Moore's Digest of Int. Law, pp. 117, 118; and, particularly, Letter of Mr. Clay, Secretary of State, to the British Minister, November 12, 1827, and Letter of Mr. Marcy, Secretary of State, to Mr. Aspinwall, August 21, 1855, there cited. The custody thus acquired is, however, provisional. It yields to the superior right of legally constituted representatives. If there are such representatives, a consul's function is limit ed to one of co-operation and intervention. If there are no such representatives, it is his duty, so far as he is able, to administer the estate to the extent of gathering it in and transmitting it to the jurisdiction of the domicile. This much he should do, though the title of administrator 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.

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.

[3] 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 declaratory

The functions thus defined by usage have been confirmed by statute and regulations declaratory of the existing practice. By section 1709 of the United States Revised Statutes (U. S. Comp. St. 1901, p. 1179), 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 Treasurer 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

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