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3. Whenever there is an heir to the property who may both be of age and present, and who ought to make the inventory in accordance with the laws of both countries;
4. Whenever, in addition to the heirs of the same nationality as the deceased, there are other heirs, who are minors, absent, or incapable, and of a different nationality.
§ Should there be, however, in any of these hypotheses, an heir who shall be a minor, or absent, or incapable, and of the same nationality as the deceased, the Consul-General, Consul, Vice-Consul, or Consular Agent shall apply to the proper local authority to be appointed to discharge the duties of guardian or curator, which application will be granted to them. When the division is made, the Consular Officer shall recover the portion of the inheritance belonging to those he represents, and continue to administer the property, as well as the persons of the minors and of the parties who are unfit to act for themselves.
It is understood that, after the division shall have been made and the property delivered to the Consular Officer or to his attorney, the interference of the local authority is to cease, except as far as regards the effects referred to in the second part of section 2 of Article XXIII.
Either the father or the guardian appointed by will shall discharge the duties of guardianship over the respective heirs who may happen to be minors, in which case the Consul-General, Consul, Vice-Consul, or Consular Agent will undertake the duty of curator of the said minors. Should the father or the guardian named die or be removed, the rule laid down in the first part of this paragraph is to be observed.
XVIII. In the case of minors being the sons of a Portuguese subject and born in Brazil, the civil status of their father is to be applied to them until their coming of age, in accordance with the Law of December 10, 1860, and for the effects of the stipulations contained in this Convention. Vice versa, the Brazilian Consular Officers in Portugal will recover and administer any inheritances of their fellow-subjects in the event of the hypothesis mentioned in the second section of Article XVI occurring, or else they will represent the minors-being the children of a deceased Brazilian in accordance with the sole paragraph of Article XVII.
XIX. Universal legatees stand on the same footing as the heirs. XX. Should all the heirs be of full age, they may, by mutual agreement proceed to take the inventory, and administer and liquidate the inheritance, either before the local Judge or the Con sular Officer.
XXI. The following rules are to be followed by the Consular Officer in all cases in which, in virtue of Article XVI, it shall be his
exclusive duty to proceed to the recovery, inventory, custody, administration, and liquidation of an inheritance:
1. Should it be possible to make out the list of the property in one day, he shall immediately comply with this duty after the demise, and take the property under his custody and administration.
2. Should it be impossible to conclude the list within that term, he shall instantly place seals upon the movable property and papers of the deceased, and proceed afterwards to make out the list of all the property with regard to which he shall act as above stated.
3. The proceedings mentioned in the two foregoing clauses shall be performed in the presence of the local authority, in case the latter, after receiving due notice from the Consular Officer, should think proper to be present thereat, and of two proper witnesses.
4. If, after death and in compliance with the rule laid down in Article XV, the local authority, on calling at the house of the deceased, shall not find there the Consular Officer, the said authority shall merely affix its seals.
On the arrival of the Consular Officer, should the local authority be present, the seals shall be broken, and the said officer shall, in the presence of that authority-if he should be willing to be presentproceed to make a list of the property.
Should the aforesaid authority not be present, the Consular Officer shall invite him in writing to appear within a term of not less than three days, nor more than eight, in order to break the seals and to proceed to carry out the other acts named above. Should the local authority not appear, the Consular Officer shall act by himself.
5. Should a will be found among the papers of the deceased in the course of the operations above-named, or should there be a will anywhere else, the opening thereof shall take place with all the legal formalities in the presence of the local Judge, who shall forward an authentic copy of the same to the Consular Officer within the term of four days.
6. Within the term of four days the Consular Officer shall forward to the local authority an authentic copy of the records both of the affixing and breaking of the seals, as well as of the list of the property and effects.
7. The Consular Officer shall announce the death of the author of the inheritance within fifteen days from the date when he shall have received the notice thereof.
XXII. Any questions as to the validity of a will shall be submitted to the local Judges.
XXIII. The Consular Officer, after carrying out the operations mentioned in Article XXI, shall adhere to the following rules, with respect to the administration and liquidation of the inheritance:
1. Before everything else he shall pay the expenses of the [1875-76. LXVII.]
funeral, which shall be in accordance with the position and wealth of the deceased.
2. He shall sell immediately at public auction, in accordance with the laws and established customs, any effects that may become deteriorated, or which it may be either difficult or expensive to keep. For the sale of any real property the Consular Officer shall apply to the local Judge for authority to do so.
3. He shall recover, either amicably or judicially, any debts, rents, dividends, interest on public funded stock, as well as any other revenues and sums due to the inheritance, giving a receipt to the debtors.
4. He shall pay, either with the sums appertaining to the inheritance or else with the proceeds of the sale of the property, both movable and real, all the charges and debts of the inheritance, and complying with any legacies with which it may be encumbered, in accordance with the will.
5. Should the Consular Officer, under the plea that the amount of the inheritance is insufficient, refuse to pay the whole or part of any credits duly vouched for, the creditors shall have the right-should they deem it expedient to their interests-to petition the proper authority to compete for the right of preference.
After this declaration shall have been obtained, in accordance with the legislation of either of the two countries, and by the means provided therein, the Consular Officer shall immediately forward, either to the judicial authority or else to the syndics of the bankrupt estate, as the case may be, all the documents, effects, and money forming part of the inheritance, either by will or ab intestato; and to the said officer will be intrusted the duty of representing the heirs who may be absent, the minors, or those incapable of acting.
XXIV. Should any heirs of a different nationality from that of the deceased supervene, this fact shall not cause the recovery and administration of the inheritance to cease, with reference to the cases mentioned in Article XVI, unless the said heirs should appear and exhibit a judgment confirmed by the Courts of Justice qualifying them as such; and provided the respective Consular Officer should have been consulted in the course of the judicial proceedings instituted for the purpose.
XXV. Should the death occur at a place where there is no Consular Officer, the local authority shall immediately acquaint the Government therewith through the Civil Governor of the District or President of the Province, reporting all the data that may have been obtained upon the case and the circumstances attending it; and he shall proceed to affix the seals, to take a list of the property, and to carry out the subsequent acts relative to the administration of the inheritance.
The Civil Governor or President shall also in the same manner, and without delay, report the fact to the proper Consular Officer, who can appear on the spot or else appoint some one under his responsibility to act in his stead, and either he or his representative shall receive the inheritance, and continue the liquidation thereof, if not already concluded.
XXVI. Should the deceased have been a partner in any commercial firm, the rules laid down in the commercial laws of the respective countries shall be adhered to.
§ 1. If, at the time of death, the property, or part of the property, constituting the inheritance, of which the administration and liquidation are regulated by this Convention, should happen to be subject to embargo, hypothec, or sequestration, the Consular Officer shall not take possession of the said property until after the withdrawal of the said embargo, hypothec, or sequestration.
§ 2. Should any embargo, hypothec, or sequestration of any property constituting an inheritance supervene pending the liquidation thereof, the Consular Officer shall be the depositary of the said property under hypothec, embargo, or sequestration.
The Consular Officer shall always have the right of being heard, and of watching over the observance of the formalities required by the laws; and he may, in any case, apply to the Judge for anything on behalf of the inheritance; and either from the Commercial Court or from that where the question of hypothec is to be triedin case the latter should have been carried into effect-he shall receive the net part or the remainder of the same inheritance.
XXVII. After the inheritance shall have been duly liquidated, the Consular Officer shall draw up from the respective documents a schedule of the whole property to be divided, and forward the same to the proper local authority, accompanied by a document showing the proceedings in the course of the administration and liquidation of the inheritance.
§ 1. These two documents may, at the request of the local authority, be compared with the originals, which shall be placed at their disposal for the purpose in the Consular archives.
§ 2. The local authority shall annex the said schedule and document relative to the administration and liquidation to the authentic copies of the records of the affixing and breaking of the seals and list of the property; and shall make the division thereof, apportioning the shares and specifying the amounts to be refunded, should there be any.
§3. In no case shall the Consuls be the judges in any questions relating to the rights of the heirs, and to the adjudication of the portions of the inheritance called "Legitima" and "Terça;" these questions must be submitted to the proper Courts of Justice.
§ 4. The local authority, after the judgment sanctioning the division of the property shall have been given, shall forward to the Consular Officer a copy thereof and of the computation relating thereto.
XXVIII. Should any subject of either of the two High Contracting Parties die within the territory of the other, the right of succession, as far as regards the precedence of the heirs and the division of the inheritance, shall be regulated in accordance with the law of the country to which he belongs, irrespective of the nature of the property; nevertheless, all the special enactments of the local law with respect to real property must be complied with,
Should it happen, however, that any subject of either of the High Contracting Parties should have to compete in his own country with any foreign heirs, he shall have the right of preference, in order that his share of the inheritance may be regulated in accordance with the law of his own country.
XXIX. The Consular Officer shall not remit or deliver the inheritance to the lawful heirs or to their attorneys until all the debts which the deceased may have contracted in the country shall have been paid, or else until the expiration of the period of one year from the date of the decease, without any claim having been brought forward against the inheritance.
XXX. Before any distribution of the proceeds of the inheritance is made to the heirs, payment must be made of the fiscal dues of the country where the inheritance takes place.
These dues shall be the same as are now paid, or may hereafter be paid, by the subjects of the country in analogous cases.
The Consular Officer shall declare beforehand to the fiscal authorities the names of the several heirs and of the degree of relationship; and, on payment of the dues, the same authorities shall transfer the dominion and possession of the inheritance to the respective heirs, in accordance with that declaration.
XXXI. Any expenditure which the Consular Officer may be compelled to incur on behalf of the inheritance, or of any part thereof, which may not be under his custody and administration, in accordance with this Convention, shall be refunded by the proper local authority and paid as expenses of guardianship or curatorship out of the total amount of the inheritance.
XXXII. Should the inheritance of a subject of either of the High Contracting Parties who may have died within the territory of the other become vacant, that is, should there not be either any surviving widower or widow or any heir in any of the degrees of succession, it shall be delivered up to the Public Treasury of the country where such death may have occurred.
Three advertisements shall be published consecutively, by order