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of the children, where their own property is sufficient for the purpose, where ample provision is otherwise made for their support, or even it has been held where they are able to earn their own support.” 29 Cyc. 1608.

Also: "While in a proper case the support and education of a child may be made a charge against its estate, the father cannot be allowed to use the property of the child for its support and education unless this is absolutely necessary, or to charge the estate of the child for its support and education, save under exceptional circumstances. Where, however, the duty of support has developed upon the mother, she is entitled to be allowed a reasonable amount out of the property of the children for their maintenance and education, without reference to her own ability to support and educate them, and such allowance may be made, not only to provide for the future, but also to reimburse her for past expenditures." 29 Cyc. 1616.

The above principle of law seems to be approved in the case of Cumming v. Brooklyn City Ry. Co., 109 N. Y. 100, 16 N. E. 67, where it is stated :

"The legal obligation of maintenance and support resting on the mother is especially imperfect. In all cases it necessarily can be enforced only in cases of the pecuniary liability of the parent, and in case of the mother the child's means are first chargeable with his support.”

In Furman v. Van Sise, 56 N. Y. 445, 15 Am. Rep. 441, the court said:

"The obligation of the mother to support her child is qualified, and only exists when they have no means and are incapable of supporting themselves."

The same principles are also held in Gladding v. Follett, 2 Dem. Sur. 58, affirmed in 30 Hun, 219, and further affirmed in 95 N. Y. 652, in Voessing v. Voessing, 4 Redf. Sur. 360, in Matter of Winsor, 5 Dem. Sur. 340, and in Wilkes v. Rogers, 6 Johnson, 566.

[3] In the case before us it is conceded that the mother has taken care of the child for over two years, and that the child has some property in this estate. Therefore, in accordance with the foregoing principle and cases, applied to these facts, I am of the opinion that the mother is entitled to be reimbursed for the support and maintenance of such child at the rate of $5 a week during the time that she has been caring for the child, provided, however, the aggregate amount does not exceed the amount coming to the child on this accounting.

[4] We now come to the next point, as to whether or not the administratrix should be surcharged with this amount and pay it over to the general guardian to be appointed of said infant. The appointment of a general guardian and the payment over to the general guardian would be the regular way—in fact, it is the best way, and should generally be done; but when all of the parties are before the court, as they are in this case, and there is no question of bona fides in the transaction, when the amount coming to the infant would be entirely absorbed in paying the reasonable maintenance of said child during the time that it has been maintained by the mother, it would seem an unnecessary exaction on the part of the court to require the expense to the estate at this time in the appointment of a general

guardian, and the surcharging of the present account of the administrator, and direction to pay that over to a general guardian when appointed, simply to be paid out by the guardian to this mother for the support upon a future application, when it appears clearly to the court that if a guardian had been appointed, and such application had been made, the mother would have been entitled to reasonable allowance for the support and maintenance of said child.

Redfield's Surrogate's Practice (7th Ed.) $ 791, says:

"Moneys advanced by an executor or administrator out of his own resources to a legatee or distributee may be reimbursed by allowing his charge therefor on his accounting, and where allowances are made for the support of minors in the family of the executor or administrator the subject of offsetting the value of their services should be considered."

Heaton, in his work on Surrogate's Court (volume 1, § 67), says: "While it is not good practice for an executor or administrator to advance any funds of the estate for the support of an infant child of a decedent who had a share of the estate, yet where small sums of money have been used for the support of infants who have no general guardian, it is customary to allow the executor or administrator such sums of money so advanced, and to charge the same to the share of the infants, as though such sums had been advanced to a duly appointed general guardian and by him applied to such uses."

The leading authority in this state upon the proposition that an executor or administrator may be allowed upon his accounting for advances made to an infant for past support and maintenance is Hyland v. Baxter, 98 N. Y. 610.

On the above authorities, and the facts appearing in this case, I am of the opinion that the administratrix should be allowed for care and support of the infant since the death of the father, as far as the funds coming to the infant in this case permit, and being, under the circumstances of this case, regarded as reasonable in amount, they should be allowed her upon filing of a receipt in full of all claims for such support and maintenance during such period of time.

I accordingly dismiss the objections to the administratrix's account, and allow as a credit to the administratrix the amount that may be found coming to said infant, upon filing a receipt in full of all care, maintenance, and support of said infant from the death of the decedent to the time covered by the accounting herein.

Let findings in accordance with this decision be settled, and provision entered in the decree allowing such claim, and let a decree of judicial settlement be entered herein, with costs as of an accounting to the administratrix, and with allowance to the special guardian, both to be taxed and allowed upon the settlement of the findings and decree herein, on three days' notice or voluntary appearance of the parties in open court.

In re BAGLIERI'S ESTATE. (Surrogate's Court, New York County. June 10, 1912.) EXECUTORS AND ADMINISTRATORS (8 24*)-RIGHT TO ADMINISTER ESTATE-FOREIGN CONSULS.

The most favored nation clause in the treaty with Italy of May 8, 1878 (20 Stat. 732, art. 17), gives an Italian consul the right to administer the estate of an Italian citizen dying intestate in the United States; this right being given consuls of Paraguay and Sweden by the treaty with Paraguay of February 4, 1859 (12 Stat. 1096, art. 10), and the convention with Sweden.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. $8 132–140; Dec. Dig. 8 24.*] In the matter of the estate of Vincenzo Baglieri, deceased. Letters of administration directed to be issued.

Richard E. Weldem, of New York City, for petitioner.
Gino C. Speranza, of New York City, for Italian consul.

FOWLER, S. The decision of the United States Supreme Court in the case of Rocca v. Thompson, 223 U. S. 317, 32 Sup. Ct. 207, 56 L. Ed. —, which affirmed a judgment of the Supreme Court of the state of California holding that the public administrator was entitled to letters of administration upon the estate of an Italian citizen dying intestate in California, resulted from a consideration of the provisions contained in the treaty between the United States and the Argentine Republic as to the rights and powers of their respective consular officers; it being assumed by the court in its decision that the rights and powers so conferred inured to the benefit of similar officers of the government of Italy by virtue of the favored nation clause (article 17) contained in the treaty of 1878 (20 Stat. 732) between the United States and Italy. No question was presented to or considered by the court as to the rights and powers of the Italian consular officers with reference to the administration of estates of Italian citizens acquired by virtue of such clause under treaties made by the United States with other countries than Argentina. The Argentine treaty (article 9, Treaty of 1853 [10 Stat. 1009]) secured to the consular officers therein specified "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." This language, the United States Supreme Court held, laying great stress on the term "intervene” and defining the sense in which it was used in the article, did not authorize or provide for the appointment of any of the consular officers mentioned in the article as administrator of the estate of any decedent referred to therein.

Article 10 of the treaty between Paraguay and the United States (Treaty of 1859 [12 Stat. 1096)), expressly and unequivocally gives to the consul general, consul, or vice consul of Paraguay or his representative the right to name an administrator of the estate of a citizen of his nation who had died in this country intestate. The convention between Sweden and the United States unmistakably de

*For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

clares that the consul general, vice consul general, or vice consul of Sweden shall have the right to be appointed administrator of the estate of a citizen of his country dying in this country. Article 17 of the treaty between the United States and Italy provides that:

"The respective consuls general, consuls, vice consuls and consular agents, as likewise the consular chancellors, secretaries, clerks or attaches, shall enjoy in both countries all the rights, prerogatives, immunities and privileges which are or may hereafter be granted the officers of same grade of the most favored nation."

Under this article there can be no doubt that the provisions in our treaties with Sweden and Paraguay, so far as they relate to the powers and rights of consular officers with reference to the administration of the estates of citizens of their respective countries, were conferred on like representatives of the Italian government. McEvoy v. Wyman, 191 Mass. 276, 77 N. E. 379; In re Scutella's Estate, 145 App. Div. 156, 129 N. Y. Supp. 20; Rocca v. Thompson, supra, and cases therein cited. From the foregoing it is obvious that the consul general of Italy is entitled to letters of administration on the estate of the intestate, who was a citizen of Italy and died in this country, in preference to the petitioner, who is a brother of the intestate and one of his next of kin.

Submit decree at once on notice, directing letters to issue to the consul general of Italy.

In re JAREMA'S ESTATE.

(Surrogate's Court, New York County. June 12, 1912.). ESECUTORS AND ADMINISTRATORS (8 24*)-Right TO ADMINISTER ESTATEM

FOREIGN CONSULS.

The most favored nation clause of the treaty with Austria-Hungary of July 11, 1870 (17 Stat. 831, art. 15), gives a consul of that nation right to administer on the estate of a subject thereof dying intestate in the United States.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 132–140; Dec. Dig. 24.*] In the matter of the estate of Harry Jarema, deceased. Heard on question of right to administer.

Jacob Hillquit, of New York City, for petitioner.

Arpad A. Kremer, of New York City, for Austro-Hungarian consulate.

FOWLER, S. Article 15 of the treaty of 1870 between the United States and Austria-Hungary (17 Stat. 831) gives to their consuls general, consuls, and other consular officers mentioned therein the same prerogatives and privileges granted to functionaries of the same class of the most favored nation. This entitles consuls and consular officers of Austria to letters of administration on the es. tate of a decedent who was a subject of Austria-Hungary and who died intestate in this country. See Estate of Vincenzo Baglieri, 137 N. Y. Supp. 175. *For other cases see same topic & $ NUMBER in Dec: & Am. Diga. 1907 to date, & Rep'r Indexes

PEOPLE ex rel. HOTCHKISS et al. y. SMITH et al., Board of Elections. (Supreme Court, Extraordinary Special Term, Westchester County.

August 30, 1912.) 1. ELECTIONS (8 21*)-PRIMARY ELECTIONS_REGULATIONS.

The Legislature may not impose any unnecessary hindrance to the nomination of or voting for independent candidates, nor impose unreasonable limitations on independent political groups seeking an opportunity to vote for independent candidates.

[Ed. Note. For other cases, see Elections, Cent. Dig. 8 15 ; Dec. Dig. $ 21.*] 2. BLECTIONS ($ 21*)-NOMINATION BY PETITION_STATUTES-VALIDITY.

The provision of Election Law (Consol. Laws 1909, c. 17) $ 122, as amended by Laws 1911, c. 891, which requires 1,500 signatures to an independent nominating petition for county officers, is invalid, as an unreasonable and an unjust discrimination against independent political parties.

[Ed. Note.-For other cases, see Elections, Cent. Dig. & 15; Dec. Dig. 8 21.*] 3. ELECTIONS (8 21*)-NOMINATION BY PETITION-STATUTES-VALIDITY.

The Legislature has the power to regulate the manner of making inde. pendent nominations for public office and determine the number of nominators; but the regulations, to be valid, must be reasonable, and not impose unnecessary limitations, or deprive independent bodies of equality of opportunity with all other bodies and parties.

(Ed. Note.--For other cases, see Elections, Cent. Dis. $ 15 ; Dec. Dig. $ 21.*1 4. CONSTITUTIONAL LAW (8 70*)-LEGISLATIVE FUNCTIONS-JUDICIAL FUNC

TIONS.

The court, declaring invalid the provision in Election Law (Consol. Laws 1909, c. 17) $ 122, as amended by Laws 1911, c. 891, requiring 1,500 signatures to an independent nomination petition for county officers, may not determine what will be a reasonable number of signers for an independent nomination, since that is exclusively a matter for legislative action,

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. $8 129– 132, 137; Dec. Dig. $ 70.*) 5. ELECTIONS ($ 21*)-NOMINATIONS BY PETITION-STATUTES.

The provision of the Election Law of 1890 (Laws 1890, C. 262), requiring 1,000 signatures to an independent nominating petition for county offi. cers, will not be declared invalid, as unreasonable and injustly discrimmatory, in view of the fact that it has been in force for many years without being attacked, and such law controls, on Election Law (Consol. Laws 1909, c. 17) $ 122, as amended by Laws 1911, c. 891, being adjudged invalid.

[Ed. Note.-For other cases, see Elections, Cent. Dig. $ 15; Dec. Dig. & 21.*] 6. ELECNONS (& 21*)-NOMINATIONS BY PETITION-STATUTES.

The provision of Election Law (Consol. Laws 1909, c. 17) $ 123, as amended by Laws 1911, c. 649, which strikes from an independent nominating petition the name of an enrolled member of a political party nominating a candidate, is invalid, as unreasonable and as unnecessarily obstructing the making of independent nominations.

[Ed. Note. For other cases, see Elections, Cent. Dig. & 15; Dec. Dig. & 21.*] 7. ELECTIONS ($ 21*)--NOMINATIONS BY PETITION-STATUTES.

The provision of Election Law (Consol. Laws 1909, c. 17) $ 123, as amended by Laws 1911, c. 649, that no person shall join in nominating more candidates for any office than there are persons to be elected there

to, and no certificate shall contain the names of more candidates for any *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.-12

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