Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President, Transmitted to Congress December 2, 1895, Part II

Baron Fava to Mr. Gresham.

[Translation.]

Embassy of His Majesty the Kino of Italy,
Washington , May 16, 1895.

Mr. Secretary of State: By the report which I have the honor herewith to inclose the acting consul of Italy at New Orleans informs me that an estate has recently been placed in the hands of an administrator which was left by a Mrs. Amelia Rizner, formerly Mrs. Sarzana, and which consists of real estate situated in the aforesaid city, and that the son of the deceased, who is an Italian subject and a resident of the Kingdom, has been notified that, as the sole heir, he is required to pay 10 per cent of the net amount realized for the benefit of the New Orleans Charity Hospital. This payment is required in pursuance of law No. 130, enacted in the year 1894 by the general assembly of the State of Louisiana, which provides that any person not domiciled in the United States, who is a subject of a foreign power and who, as an heir or legatee, is entitled to the whole or any part of an estate consisting of property situated in that State, shall pay 10 per cent of the net amount realized on such estate to the Charity Hospital.

I hardly need call your excellency’s attention to the unconstitutionality of this law. It is a tax, in fact, which none but the subjects of foreign powers are required to pay, some of which powers, like Italy, have special treaties with the United States which, as regards the taxes to be paid on the estates left by deceased persons in either of the contracting countries, provide that heirs who are subjects of the other country are entitled to the same usage as the subjects of the country in which the property constituting the estate is situated.

Article 22 of the treaty of February 26, 1871, between the United States and Italy is explicit on this point. It provides that “the citizens of each contracting party¹ shall have power to dispose of their personal goods within the jurisdiction of the other by sale, donation, testament, or otherwise, and their representatives, being citizens of the other party, shall succeed to their personal goods, whether by testament or ab intestato, and they may take possession thereof, either by themselves or others acting for them, and dispose of the same at their will, paying such dues only as the inhabitants of the country wherein such goods are shall be subject to pay in like cases. As for the case of real estate, the citizens and subjects of the two contracting parties shall be treated on the footing of the most favored nation.”

According to the Constitution of the United States, no law can be enacted in contravention of the laws and international treaties of the Federal Government; consequently the law in question, passed by the general assembly of Louisiana, appears to be wholly unconstitutional.

I therefore beg leave to call your excellency’s attention to this state of things, and I have the honor to invoke the good offices of the United States Government, with the competent authorities of the aforesaid State, to the end that so flagrant a violation of the treaties existing between our two Governments may not be permitted.

Tendering you my thanks in advance, I reiterate, etc.,

Fava.

[Inclosure—Translation.]

Mr. Naselli to Baron Fava.

Italian Consulate,
New Orleans , May 14, 1895 .

Excellency: I Have the honor to inform your excellency that my attention has been called to the following facts:

Some time ago a lady by name of Amelia Rizner died, leaving as her heir her son Ignazio Sarzana, who resides at present in Marsala, Italy. Said lady was married in Paris to an Italian citizen, a Mr. Giuseppe Sarzana, and from there went with him to Italy, where their son Ignazio was born.

Neither husband nor son ever came to America, and consequently remained Italian subjects. The husband died before the wife, and the son, as lawful heir, is now entitled to his mother’s estate, which consists of immovable property situated in New Orleans, valued to the amount of $67,848. The administrator of the succession here has been notified that by virtue of law 130 of the general assembly of the State of Louisiana, enacted in 1894, he is compelled to pay 10 per cent on the amount realized to the Charity Hospital.

The last paragraphs of article 22 of the treaty dated February 26, 1871, existing between Italy and the United States, reads:

Regarding the possession of immovable property, citizens of the two contracting parties shall be treated on the same footing as those of the most favored nation.

And article 10 of the treaty between the German Empire and the United States provides, viz:

In all successions to inheritances citizens of each of the contracting parties shall pay in the country of the other such duties only as they would be liable to pay if they were citizens of the country in which the property is situated, or the judicial administration of the same may be exercised.

As no State, according to the Constitution of the United States, can pass a law contrary to the laws and treaties of the Union, said law 130 of the general assembly of Louisiana appears to be unconstitutional.

In accordance with the provisions of said two articles I have the honor to apply to your excellency, in order that the rights of the above-mentioned heir may be guarded. Said heir has secured the services of an attorney, who will test in these courts the case in question, and I think that it would help matters should your excellency call the attention of the Department of State in Washington to said case, so that proper steps may be taken for the observation and fulfillment of our treaty.

I have, etc.,

Naselli, Acting Consul of Italy.

1. The English text of the treaty says “the contracting parties.”