James Moore Wayne

“ Kosciusko's intestacy as to the funds in controversy, and his domicil having been determined, we will now state the law as to the right of succession in such cases.
For several hundred years upon the continent, and in England, from reported cases, for a hundred years, the rule has been, that personal property, in cases of intestacy, is to be distributed by the law of the domicil of the intestate at the time of his death. It has been universal for so long a time that it may now be said to be a part of the jus gentium. ”

“ The gift and the reciprocation of it, are the fruits of the liberal age in which we live. We hope for a continuance of such exchanges between France and the United States, and for a like intercourse with all nations. Business men, jurists, and statesmen, will readily appreciate its advantages. It will save much time and expense when questions occur in the courts of different nations, involving the rights of foreigners, if the written laws of every nation were verified in all of them, by certified official publications to the governments of each. ”

“ All of us concur in thinking that the bonds of the defendants were properly taken under the act of 1846. That the Orphans' Court called for them to secure the amount with which the administrator then stood charged, and such as he might afterwards get. They were accepted and approved by the court for that purpose, and the sureties gave them with a full knowledge of the state of the account which the administrator had filed. All of us think, also, that they are answerable for his waste, unless something else in the case can relieve them. ”

“ It is difficult to lay down any rule under which every instance of residence could be brought, which may make a domicil of choice. But there must be to constitute it actual residence in the place, with the intention that it is to be a principal and permanent residence. That intention may be inferred from the circumstances or condition in which a person may be as to the domicil of his origin, or from the seat of his fortune, his family and pursuits of life. ”

“ The unwritten must be by the parol testimony of experts. As to the manner of authenticating the law, there is no general rule, except this: that no proof shall be received, 'which presupposes better testimony behind, and attainable by the party.' They may be verified by an oath, or by an exemplification of a copy, under the great seal of a State, or, by a copy, proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer, properly authorized, by law, to give the copy; which certificate must be duly proved. ”

“ We understand, by the laws of Maryland, as they stood when Congress assumed jurisdiction over the District of Columbia, that the property of a deceased person was considered to be administered, whenever it was sold, or converted into money, by the administrator or executor, or in any respect changed from the condition in which the deceased left it. ”

“ Seven years of peril and suffering, of wise forecast in counsels of war, and of dauntless bravery in the field, may claim from our people grateful recollections, and the expression of them in the best way that they can be commemorated by art. ”

“ The rule prevails, also, in the ascertainment of the person who is entitled to take as heir or distributee. It decides whether primogeniture gives a right of preference, or an exclusive right to take the succession; whether a person is legitimate or not to take the succession; whether the person shall take per stirpes or per capita, and the nature and extent of the right of representation. Story's Conflict of Laws.
But it is objected, before the rule can be applied in this suit against the defendants, that the complainants must prove what the law of France is for the distribution of the fund. ”

“ It is not a judgment inter partes, but a foreign judgment in rem, and is evidence of the facts adjudicated against all the world. The decree from the court of Kobryn is also proved to be a judicial record. From both we learn that the persons named in the bill of the complainants, are the collateral kinsmen of General Kosciusko. By the laws of France, they may take his estate by succession. ”

“ The act permits the court, in the cases mentioned in the 3d section, not only to take security for assets which might in future come to the hands of the administrator, but for such as he had already received and returned to the court as in his hands, or of which he ought to have made a return, and which may not have been properly administered. ”

“ For this purpose, the Code Civil of France was offered in evidence, but it was objected to.
It is true, that the existence of a foreign law, written or unwritten, cannot be judicially noticed, unless it be proved as a fact, by appropriate evidence.
The written foreign law may be proved, by a copy of the law properly authenticated. ”

“ Lithuania we know to be now a Russian province, governed by its own laws, except as they may be modified by the Emperor's edicts. It is divided into three governments, Wilna, Grodno, and Minsk, with a Governor-General over them. The decree of the Assembly of the Department of Grodno, is an exemplified copy of that made on the 7th May, 1843, in the case of the heirs of Kosciusko, and contains the genealogical chart of the descendants of the sisters of Kosciusko. ”

“ But what amount of proof is necessary to change a domicil of origin into a prim a facie domicil of choice? It is residence elsewhere, or where a person lives out of the domicil of origin. That repels the presumption of its continuance, and casts upon him who denies the domicil of choice, the burden of disproving it. Where a person lives, is taken prim a facie to be his domcil, until other facts establish the contrary. Story's Com. 44, 6 Rule ”

“ It gives specific legacies to persons residing in France, charged upon funds owned by the testator in France, and his executor was a notary at Morcu, in the department of Seine and Marne, which is the opening of the will, the testator says, in the department of his residence, at Berville.
Within the month of Kosciusko's death, the will was taken to Paris, and recorded there, pursuant to law. The executor having received authority from the proper tribunal to act as such, paid, according to the will, the legacies given by it. See arts. ”

“ But by the act of Assembly of Maryland, 1798, c. 101, sub. c. 8, § 15, and sub. c. 11, § 1, distribution is to be made when the debts are paid. A distributee may sue at law on the administration bond, against the sureties, after the lapse of thirteen months, without having first obtained judgment and issued execution against the administrator. ”

“ Such an averment implies that he had voluntarily left Poland for France, without having been forced to do so, and that his return depended upon political contingencies, which might never happen, and which we know did not occur. It places upon the defendants the burden of proving the intention, the complainants having shown, and the defendants having admitted, that he had prim a facie a domicil in France. They have not done so. ”

“ If this suit, then, had been brought against the first sureties of Bomford, in his original bond as administrator de bonis non of Kosciusko, they would not have been answerable. For any waste of the estate of Kosciusko, the remedy would have been against him and his sureties, as executor of Lear, and if the assets had been wasted by Lear, Lear's securities would have been answerable. Nor would the circumstance that Bomford charged himself with these assets, as administrator de bonis non, make any difference. His sureties could be made liable only for the assets which legally came to his hands ”

“ Arnold v. Arnold, 2 Mylne & Keen, 365, (2 Wm's Ex'ors, 1019) ; Parker v. Marchant, 1 Younge & Collier C. C. 290; Rop. on. Leg. 210, 211.
Mr. and Mrs. Zavier Zeltner are not made parties in this bill.
VI. If there was intestacy, then it is not proved where the domicil of Kosciusko was at the time of his death; nor is the law or rule of representation or succession shown; these must be stated in the bill, and proved as stated.
The bill states that Kosciusko was a native of Poland, and died at Soleure, in Switzerland, intestate, and possessed of a large personal estate in the United States. ”

“ The third ground upon which the sureties are not liable to complainants is, that there is a fatal variance between the bonds as charged in the bill, and the bonds as exhibited by complainants to prove the charge ”

“ This cause came on to be heard on the transcript of the cecord from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of said Circuit Court dismissing the complainants' bill in this cause, be, and the same is hereby, reversed and annulled. ”

“ It is, 'I bequeathe all of my effects, (effets,) my carriage and my horse included, to Madame and to Mr. Zavier Zeltner, above named.' It will be seen, by the first clause in the will, that they are the father and mother of Emilie Zeltner, to whom he bequeathed about fifty thousand francs of France, charged upon funds in England, in the hands of Thompson, Bonard & Co. ”

“ Touillier liv. 3, tit. 2; Don. et Test. ch. 5, n. 619; Pothier des Don. Test. ch. 6, § 2, § 1; Art. Code Civil, 969, 1035-36-38.
The will of 1816 was made at Soleure, while Kosciusko was sojourning there, after he had left Vienna, in 1815, whither he had gone from Paris, at the instance of the Emperor Alexander, that he might be advised with concerning the affairs of Poland. It is an olographic will, wholly written in the handwriting of the testator, according to the 970th article of the Code Civil. ”

“ And it is further ordered, adjudged, and decreed, that the said sums of money and stock, to decreed to be paid and transferred by the above-named defendants, be paid and transferred to the above-named complainants, Hippolitus Estho, Roman Estho, Louisa Narbut, Vlandislaus Wankowiez, Hippolitus Wankowiez, Adam Bychowiec, and Michael Szyrma, in the proportions stated and adjudged in the preceding fourth clause of this decree. ”

“ Nor can the testimony of these witnesses be impeached by giving it a different construction than the nature of the case admits of, the appellees having neglected to cross-examine them, (Starkie on Evid. Phil. ed. of 1842, pp. 197, 212, 214, 316, 317, 577,) though their counsel were present at the taking of depositions, and cross-examined one witness on other matters. ”

“ Among other reasons given by him is, that a contrary rule would be extremely mischievous, and would affect our commerce. No foreigner could deal in our funds but at the peril of his effects going according to our laws, and not those of his own country. He reaffirmed the same in a few years afterwards, in Thorne v. Watkins, 2 Ves. 35. Lord Kenyon did the same when he was Master of the Rolls in 1787, in Killpatrick v. Killpatrick, which will be found cited in Robertson on Personal Succession, 116. In 1790, the House of Lords acted upon the rule, in Bruce v. ”