The opinion
Donahue, J.,
dissenting. I concur in the holding of the majority of this court that the consul general, consuls, vice-consul general and vice-consuls of the Kingdom of Italy are entitled to the benefit and provisions of Article 14 of the convention between the United States and the Kingdom of Sweden of the date of March 20, 1911, and that by the provisions of this article such consuls have the right to administer the estates of citizens of Italy dying intestate within the state of Ohio, in so far as the laws of this state will permit; but I do not concur in the holding of the majority of this court that this right to be appointed as such administrator is subject to the discretion of the probate court.
This provision of our convention with Sweden does not provide that the consul is merely eligible to appointment, or that he may be appointed at the discretion of the probate court, but it does provide in express terms that he shall have the right to be appointed as administrator of such estates, and this right to appointment is modified and qualified only by the further provision in the treaty that *361 the rights granted therein shall obtain to the extent that “the laws of each country will permit.”
Paragraphs 1, 2 and 3 of Section 10617, General Code, grant to the husband or widow of the deceased, the next of kin, or the principal creditor, if there be any competent and willing to undertake the trust, a prior right, in the order named, to be appointed administrator of the estate of an intestate resident of the state of Ohio at the time of his death. To this extent only the laws of Ohio do not permit the operation of the provision of the treaty with Sweden granting to consuls the right to be appointed as administrator of such estate.
Where there is no husband or widow of the deceased, or next of kin, or principal creditor, or other person entitled by the laws of this state to such administration, then the provisions of the treaty obtain, and the right of the consul to administer upon such estates becomes absolute, paramount and prior to that of all other persons who may be appointed by the probate court, in its discretion, under the provisions of paragraph 4 of Section 10617, General Code.