Fin Lund v. Hansen

SEAWELL, J.

Claus Albert Clausen died testate April 3, 1925, a resident of the county of Marin, this state. He was unmarried and left neither children, nor father, nor mother surviving him. He left as his sole heirs at law seven brothers, three sisters, and four children of a deceased sister and five children of a deceased brother. By his will he bequeathed and devised to his brothers and sisters and to the children or issue of any deceased brother or sister (such children or issue to take by right of representation) all property of which he might die seised or possessed. The heirs whose distributive shares are the concern of this proceeding are the children of said deceased brother and sister and are residents of the Kingdom of Denmark. The executor of said estate, having brought the proceeding to the stage where it was proper to make partial distribution of the same, petitioned the court to make a decree to that effect, which was accordingly made and entered by the court, whereupon Pin Lund, as the accredited consul of Denmark, whose consular district embraced the whole state of Cali

[269]

fornia, filed a petition wherein he prayed that the executor of said estate be ordered to pay the distributive shares of said foreign heirs to him, to be by him remitted through the agency of the government of Denmark to the proper distributees, and that the petitioner be directed to furnish evidence of such remission. A general demurrer to the petition was sustained and an order subsequently made and entered denying said petition. It is from this order that the appeal was taken. Said consul claims by authority of his official station as consul of Denmark the right to receive and receipt for the shares of said estate ordered by said decree to be distributed to the children of said sister and brother of decedent, respectively, all of whom are residents of and subjects of the King of Denmark. This right is asserted under and by virtue of the provisions of the treaty existing between the United States of America and the King of Denmark, ratified August 10, 1826, and proclaimed by the President of the United States October 14, 1826 (8 U. S. Stats. 340). Said treaty is entitled “General Convention of Friendship, Commerce, and Navigation,” and it has not been modified during its one hundred years of existence in any material respect. Said treaty by its express provisions is strictly a treaty of commerce and navigation. Those are the only subjects treated of therein. Every article of said treaty deals with commerce and navigation between the two nations and does not purport to deal with any other subjects. The preamble, or introductory paragraph, sets out very clearly and specifically the subject matter of said treaty in the following language: