The Consular Regulations of 1896 (section | right of administration to a foreign consul. 409) provide as follows:

"A consular officer is by the law of nations and by statute the provisional conservator of the property within his district belonging to his countrymen deceased therein. He has no right, as a consular officer, apart from the provisions of treaty, local law, or usage, to administer on the estate, or in that character to aid any other person in so administering it, without judicial authorization. His duties are restricted to guarding and collecting the effects, and to transmitting them, to be disposed of pursuant to the law of the decedent's state. 7 Op. Atty. Gen. 274. It is, however, generally conceded that a consular officer may intervene by way of observing the proceedings, and that he may be present on the making of the inventory."

In that view the consul is not merely eligible as administrator, but eligible to the exclusion of every one else, even the closest relatives of the dead man, and that, too. though the entire estate is located here, and is here to be distributed. We are unwilling to believe that such results were contemplated in concluding this convention. We hold it to be incredible that there has been attached to the consular office a right that exceeds so greatly the occasion and the needs of the consular function. Before adopting a construction that will bring these consequences to pass, we have a right to expect a far plainer manifestation of the will of the national government than any that has been afforded by the language now before 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; Matter of Ghio's Estate, 157 Cal. 552, 108 Pac. 516, 37 L. R. A. [N. S.] 549, 137 Am. St. Rep. 145; Austro-Hungarian Consul v. Westphal, supra); and we express no opinion upon that subject. We find, however, that distinguished Secretaries of State have disclaimed both the existence of such a power and the intent to exercise it. Thus, in

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 fulfill 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 St. 24 and 25 Vict. c. 121, s. 4. It is in accord with the decision of the Supreme Court of Minnesota. Austro-Hungarian Consul v. Westphal, supra. 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. Matter of Holmberg's Estate (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 sub-thorities." ject the rights of consuls to the requirements Again, in 1889, Mr. Bayard, in a letter to of local law. the American minister in Brazil, considered

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 regulation of such measures as may be prescribed by tions on the subject, interference in the disposithe law of the particular state in such cases is not within the province of the federal au

of deceased aliens by their consular representatives; and, criticizing the principle of the decree, he said (5 Moore's Digest of Int. Law, p. 120):

If the convention means more than this, a decree of the Brazilian government estabif it was intended to confer upon foreign lishing the principle of reciprocity with refconsuls an exclusive and paramount right,erence to the administration of the estates strange consequences must follow. It is not restricted in its operation to the estates of aliens who have died in the United States while temporarily sojourning here, but who have retained a domicile in their native "The government of the United States has no lands. It applies equally to the estates of power to establish by treaty provisions such as aliens who have their domicile in the Uniteding in any of the states of our Union. the above, in relation to Brazilian subjects dyEach States. If an alien, settling in New York, state, under our system, has exclusive jurisdicwere to build up a business, and, marrying, tion over the administration of property of rear a family among us, the respondent persons, whether foreigners or citizens, dying within its limits. * * * I conclude, therewould have us hold that his children, citi-fore, that the United States cannot agree to zens of this state, would have to yield the accept the Brazilian decree, above quoted, as

the basis of a reciprocal arrangement with that country: First, because the federal government has no power to impose such regulations on the states; and, secondly, because the provisions in question, if correctly understood, conflict with provisions which are settled rules of succession as established in all states."

which has been referred to in some opinions (see e. g., Matter of 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

Again, in 1894, the Italian minister at Washington proposed that Italian consuls in the United States be authorized, as were estates. The case is stated in Moore on Inthe American consuls in Italy, to settle the es-ternational Arbitrations, vol. 4, p. 4390. One tates of deceased countrymen. 5 Moore's Digest Int. Law, p. 122; Rocca v. Thompson, supra, at page 333 of 223 U. S., at page 207 of 32 Sup. Ct. (56 L. Ed. 453). 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

a

Vergil, a citizen of Peru, while returning 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 afterarbitration, under a convention between the wards brought within our jurisdiction. An 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 and the attempt of the public administrator been delivered to his representatives in Peru; to retain them was viewed as an unlawful assumption of jurisdiction. Hoes v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435, 442, 66 N. E. 119; Matter of McCabe, 84 App. Div. 145, 82 N. Y. Supp. 180; Id., 177 N. Y. 584, 69 N. E. 1126. In such a situation the derelict property brought by chance within our own state, after the death of its owner on the high seas, should have been delivered to the Peruvian consul as the provisional conservator, to be by him transmitted to the jurisdiction of the

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 In some cases, as for example, Matter of Peru. Treaty of August, 1887; 25 Stat. at Baglieri's Estate, 137 N. Y. Supp. 175, the Large, 1444, art. 33. The latter treaty, how-right of the foreign consul has been based in ever, was plainly not intended to give to consuls a right to administer to the exclusion of the rights of relatives. Its language is:

"Until the conclusion of a consular convention, which the high contracting parties agree to form as soon as 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."

domicile.

part on a treaty between the United States and Paraguay, concluded February, 1859 (12 Stat. 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 The words which we have italicized demon-executor or administrator be named by the said strate that even under that treaty there are consul general, consul or vice consul, or his times when the right of consuls to administer representative." must give way to that of others. The description of the right as exclusive must be regarded as inadvertent.

There arose under an earlier treaty with

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,

an exclusive right in favor of the Italian con- [ him that recovery was impossible is insuffisul. The words "so far as the laws of each cient. country will permit," as found in that treaty,

WILLARD BARTLETT, C. J., and WER-shot Saverio Gragnanello November 17, 1912, NER, HISCOCK, COLLIN, HOGAN, and at Buffalo. Gragnanello died January 22, MILLER, JJ., concur. 1913, as the result of the shooting, as the jury found.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

The objection to its admission, "on the ground there is nothing in evidence except the statement which the doctor wrote that showed he thought he was going to die, and that his death was to be speedy," was overruled with an exception.

told declarant that recovery was impossible
is insufficient. There must be proof that the
declarant believed it and had no hope of re-
covery. Peak v. State, 50 N. J. Law, 179,
12 Atl. 701; People v. Chase, 79 Hun, 296,
29 N. Y. Supp. 376, affirmed 143 N. Y. 669,
39 N. E. 21; People v. Evans, 40 Hun, 492.
Declarant's certainty that he is about to die
and lack of all hope of recovery may be
proven by his express language or conduct, or
inferred from his physical condition and ob-
vious danger, or evidence of his acquiescence
in the opinions of doctors or others stated to
him, or other adequate circumstances. Wil-
liams v. State, 168 Ind. 87, 79 N. E. 1079;
State v. Sullivan, 20 R. I. 114, 37 Atl. 673.
[4] In the present case the preliminary

The learned district attorney seems confident that the statement was admissible. He points out the three wounds; that the deceased was about to undergo an operation; that a doctor told him he was in a critical condition, and they did not expect him to live; and that he stated he was under the influence of an impression or under an impression that he was about to die. The statements of the district attorney must, however, be modified in these particulars: There is no proof that the deceased knew that he was about to un-proof was too slight and indefinite to justify dergo an operation, or that the person talk- the admission of the statement. The transing to him was a doctor, or that he stated action, apart from the wounds, was this: A that he was under the impression that he was strange man said to the deceased when reabout to die. The statement was upon a ceived at the hospital that his condition was printed blank, and the only affirmative state- critical and he was going to die, and they ments of the deceased it contains are those wanted an ante mortem statement for purincluding and following the words "I live at poses that might arise later, and the deceased 164-8 Erie street." Above those the blanks said "All right," he would give it, and the of the printed form were properly filled, and statement that he made the statement under the entire statement read to him, and he "the influence of an impression that I am said it was true. about to die, and have no hopes of my recov

this statement under that impression"-was read over to him with the other parts of the statement, and said by him to be true. The declarant did not ask for wife, children, friends, or priest or by word or act indicate

that he believed his death certain and imminent. He did not say or show that he believed he would not recover and was without any hope whatsoever of living. It would be

[2, 3] The principle upon which dying dec-ery from the effects of my wounds. I make larations are received in evidence is that the mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to God upon an oath. The declarations, therefore, of a person dying under such circumstances are considered as equivalent to the evidence of the living witness upon oath. Commonwealth v. Roberts, 108 Mass. 296. Safety in receiv-extending the rule beyond the decision in any ing such declarations lies only in the fact that the declarant is so controlled by a belief that his death is certain and imminent that malice, hatred, passion, and other feelings of like nature are overwhelmed and banished by it. The evidence should be clear that the declarations were made under a sense of impending death without any hope of recovery. People v. Conklin, 175 N. Y. 333, 67 N. E. 624. Statements made by a doctor to and accepted by a declarant that there was no chance of his recovering are admissible. Commonwealth v. Brewer, 164 Mass. 577, 42 N. E. 92; Brotherton v. People, 75 N. Y. 159. If the declarant thinks there is a slight chance of living, the declarations are inadmissible. Commonwealth v. Roberts, 108 Mass. 296; Commonwealth v. Haney, 127 Mass. 455. The mere fact that the doctor |

case we have read or found, and we think beyond safety, to approve the reception in evidence of the statement. But we do not think we should reverse the judgment because of its reception. The guilt of the defendant was fully proven without it. It, in fact, added nothing to the case. The facts stated in it were proven aliunde and with great fullness and detail. It is inconceivable that the verdict of the jury would have been different had it been rejected.

The judgment of conviction should be affirmed.

WILLARD BARTLETT, C. J., and WERNER, CHASE, and COLLIN, JJ., concur, HOGAN and CARDOZO, JJ., concur in re sult. CUDDEBACK, J., not voting.

Judgment of conviction affirmed.

The appointments were made under the amendment to section 14 of article 6 of the Constitution adopted at the general election in November, 1913. That amendment reads judicial district.

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