Cunningham v. Rodgers/Opinion of the Court

Section 1697, U.S. Revised Statutes, as amended by Act of December 21, 1898, c. 36, 30 Stat. 770 (Comp. St. § 3149), requires every consul general, before receiving his commission, to execute a bond conditioned for the true and faithful performance of duties lawfully imposed upon him as such officer. It is copied in the margin.

Purporting to proceed under this section plaintiff in error brought an action in the Supreme Court, District of Columbia, against James Linn Rodgers, once consul general at Shanghai, China, and the sureties upon his official bond. Process was served upon him, but the sureties were not summoned and did not appear. The declaration alleges execution of the bond, its breach by Rodgers' failure to discharge his official duties concerning property left by plaintiff's brother, who died in China, June 10, 1905, and asks a recovery upon the bond for damages suffered. The trial court sustained a demurrer to the declaration and upon appeal this action was affirmed.

The Court of Appeals held that if the consul general's failure to perform his official duties concerning the personal property caused loss, the damage was to the estate, and plaintiff, being a mere possible owner of a distributive share, could not recover in his own right-any possible right of action was in the administrator. This we think was clearly right.

The second count of the painfully prolix declaration alleges:

'That there was left by said decedent certain valuable real     property in the Pao Shan district in Shanghai, China, of the      value of, to wit, $5,000, which, outstanding in decedent's      name in the land records of said United States consulate at      Shanghai, China, it was the duty of the said defendant James      Linn Rodgers to conserve to said decedent's estate; but      notwithstanding his said duty in this respect, and in utter      violation thereof, and in breach of the condition of his said      bond and writing obligatory, he, the said defendant James      Linn Rodgers, instructed one E. H. Dunning to convey and      transfer the same over to a certain Mrs. Green gratuitously,      and without any consideration passing therefor, four days      after he had illegally and improperly granted alleged letters      testamentary to the said E. H. Dunning, *  *  * that no such      real estate was devised or sought to be devised under the      paper writing hereinbefore referred to as the pretended last      will and testament of the said Henry H. Cunningham, deceased,      *  *  * and said assumption of a jurisdiction and power to so instruct the      said E. H. Dunning was wholly illegal and void, although      having the effect of dissipating a valuable part of      plaintiff's deceased brother's estate, to the consequent loss      of plaintiff by this said defendant James Linn Rodgers'      violation and breach of the condition of his bond and writing      obligatory, so as aforesaid given to insure plaintiff all      legal and proper protection of his said interests in and to      his deceased brother's estate as aforesaid.'

The plaintiff's whole cause is presented upon the theory that Rodgers had no power to administer the estate of the deceased brother or to do aught in reference thereto but what the statutes authorized, 'namely, conserve and transmit to the United States for proper and legal distribution according to the laws of decedent's domicile.' No statute is cited which imposes any duty in respect of real estate upon a consul in China. Under such circumstances mere allegation that defendant unlawfully assumed to instruct one holding void letters testamentary to transfer such property without consideration is wholly insufficient to show an actionable breach of official duty, or adequately to point out personal damage suffered by plaintiff in error. Real estate cannot be dissipated by mere direction gratuitously to convey it issued without semblance of authority. The judgment below is affirmed.

Affirmed.