The opinion
LehmaN, Ch. J.
(dissenting). Josef Zalewski died on September 17, 1940. In his will he bequeathed the sum of one hundred dollars to his wife Felicja Zalewski. Felicja Zalewski is a resident and national of the Republic of Poland. The will was admitted to probate and letters testamentary were issued to the executor named in the The Consul-General of the Republic of Poland executed, served upon the executor and filed an instrument, stating:
‘1
I, Hon. Dr. Sylwester Gruszka, Consul General of the Republic of Poland * ⅜ * acting on behalf of the surviving spouse of Joseph Zalewski, deceased, to wit, Felicia Zalewski, a resident of the Republic of Poland ⅜
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do thereby exercise the personal right of election given the said Felicia Zalewski, pursuant to the provisions of Section 18 and the Decedent Estate Law, and do hereby elect, on behalf of the said Felicia Zalewski, to take her share of the estate of the said decedent as in intestacy.” Thereafter the executor brought proceedings to settle his account and the Consul-General appeared and filed objections on behalf of the testator’s spouse. His power to ££ exercise the personal right of election given the said Felicia Zalewski ” was challenged, and the courts below have sustained the challenge.
I concur in the opinion of Judge DesmoNd insofar as it holds that the “ personal right of election ” given to the surviving spouse of a testator by section 18 of the Decedent’s Estate Law is ££ personal ” only
“
in the sense that an election must in each case be a conscious individually made choice between the statutory provision and the testamentary provision.” I
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to confer upon a consular officer power to exercise in behalf of a nonresident national a “ personal election,” i.e., a conscious, individually made choice between the statutory provision and the testamentary provision — nor do I think that by any process of liberal construction can the power to “ appear ” and
“
represent ” heirs and legatees in the estate be stretched to include power to exercise such a choice for one of them.
In no cited case has a court sustained an assertion of power in consular officers to do more than act for the protection of rights granted to their nationals by law. The courts have drawn back whenever they were asked to sanction an exercise of any broader power by a consular officer. Thus, in
The Bello Corrunes
( 6 Wheat. 152, 168 ) the court said: a Vice Consul duly recognised by our Government, is a competent party to assert or defend the rights of property of the individuals of his nation, in any Court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects, wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which Consuls are deputed by their sovereigns; and in a country where laws govern, and justice is sought for in Courts only, it would be a mockery to preclude them from the only avenue through which their coursé lies to the end of their mission. The long and universal usage of the Courts of the Unitéd States, has sanctioned the exercise of this right, and it is impossible that any evil or inconvenience can flow from it. Whether the powers of the Vice Consul shall in any instance extend to the right to receive in his national character, the proceeds of property libelled and transferred into the registry of a Court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recognized.”
Again, in
In re Herman’s Estate
( 159 Minn. 274 ) cited by Judge Desmostd as a leading case, the court said “ A consul may doubtless take appropriate measures for the protection of the property interests of the citizens of the country which he represents in cases where they have no other representative and are not present to act for But he acts merely
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in Ms official capacity as the representative of Ms government, and not. as the personal agent or representative of the parties in interest, unless he has been given special authority to act for and represent them (citing cases). Plis acts are provisional and for the purpose of preserving the property and securing for his nationals an to assert and maintain their rights thereto. ⅝ ⅝ * We have been cited to no case, and we have found none, holding that a consul, simply by virtue of his office, has power to act for and represent individual claimants to property, so as to foreclose their claims thereto, without special authority from them to do so.”
The exercise of the personal right of election ££ requires the abandonment or destruction of an alternative right.”
(Matter of Hills,
264 N. Y. 349, 353 .) The statute which creates the right of election does not make its exercise subject to the approval of the court. It confers absolute freedom of choice on the surviving spouse of a testator. Many personal considerations usually influence that choice, and no person other than the surviving spouse can weigh these considerations. If a consular officer can exercise the ££ personal ” right of election conferred upon a surviving spouse as if he had a power of attorney for that purpose he may destroy the alternative right which ■the spouse whom he represents might prefer and there is nothing in the statute or in the Treaty which would empower a court to refuse to give effect to the choice so made though it might be patently unwise. In this case the bequest which is abandoned is small, and perhaps the choice made by the consular officer may be wise and would be approved by the court. The Legislature has not, however, made the right to reject a testamentary provision dependent upon its inadequacy, and if under the Treaty that right may be exercised in behalf of a nonresident national by a consular officer, no restriction upon such exercise is expressed in the Treaty or can be read into the Treaty by fair implication.
The words
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a consular officer '⅜ ⅝ ⅜ shall ⅝ # * have the right to
appear
* * * for all such heirs or legatees ¾ ⅝ ⅝ as may be nonresidents and nationals of the country represented by consular officer
with the same effect as if he held their power of attorney ”
are not fairly open
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to the construction that the consular officer may act for them in all matters as if he held their general power of attorney. He has the right to “ appear ” for them as if he held their power of attorney, and under the Treaty he can exercise no other right. He may he authorized to act as their personal agent so far hut no further. He may
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assert or defend the rights of property of the individuals of his nation, in any Court ”. He is not authorized to exercise for a national a personal choice to take an intestate share of the testator’s estate in lieu of any provision made for the benefit of the national in the will.
Order should he affirmed.
Loughean, CoNway and Thacher, J J., concur with Des-moxd, J.; LehmaN, Ch. J., dissents in opinion in which Rippby and Lewis, JJ., concur.
Order reversed, etc.