In re the Estate of Ostrowski

Wingate, S.

By virtue of the provision of the treaty with France, its consular representative possesses the right to appear in any pending proceeding in this court on behalf of his unrepresented nationals. This right is unqualified and must accordingly be deemed to apply to one of his nationals who is an infant.

Since under the United States Constitution the power to make treaties with foreign governments is vested solely in the Federal government and such treaties, when made, are the supreme law of the land (Art. 6, § 2), it follows that any conflicting law of a State must yield thereto. (Hauenstein v. Lynham, 100 U. S. 483, 489 ; Geofroy v. Riggs, 133 id. 258, 266; Missouri v. Holland, 252 id. 416, 434; Sullivan v. Kidd, 254 id. 433, 440; Asakura v. Seattle, 265 id. 332, 343; Todok v. Union State Bank, 281 id. 449, 453; Matter of Anderson, 154 Misc. 132, 134 .)

It follows, therefore, that in spite of the fact that the language of section 64 of the Surrogate’s Court Act is apparently universal in its requirement that a special guardian must be appointed in all cases in which an interested party is an infant or incompetent, the treaty provisions must be deemed incorporated therein and to constitute an exception to its universal applicability.

In the present case Robert Ehrenfried is an infant citizen of the Republic of France and the French Consul has appeared on his behalf. As this is his treaty right, the appointment of a special guardian to supersede him would be an unjustifiable invasion thereof (Matter of Bristow, 63 Misc. 637, 638 ; Matter of Nyahay, 66 id. 418, 419), of which this court would not be the perpetrator.

The Consul is accordingly to be deemed free to act in this capacity unless and until superseded by a direct representative of the party. (Matter of Spanier, 148 Misc. 879, 881 .)

Proceed in conformity herewith.