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Bosley et al. v. Bosley's Executrix.
of his estate in two parts, giving her the two thousand dollars, but withholding from her the residue, and leaving it to be claimed by whoever might chance to be his heir at law at the time of his death. On the contrary, it is manifest, from the whole context of the will and codicil, that he did not mean to die intes.. tate of any portion of his property; and that what did not pass to others by a specific devise or bequest, should go to his wife. The codicil is evidently drawn by unskilful hands,
and therefore, according to settled principles of law, must receive a fair and liberal interpretation to accomplish the intent. And as that intent is apparent in favor of the widow, it ought not to be de. feated by a narrow and technical construction of particular words.
It was suggested, in the argument, that the appellants might be entitled to a remainder in fee, in the two lots on which, it would seem from the will and the codicil, that two old servants of the testator were living. But this point, very properly, was not pressed. For the lots mentioned in that clause of the will, in which a remainder in fee is given to the appellants after the death of Mrs. Bosley, are lots on which there were improvements, and which yielded an income. The lots in question were not of that description. They yielded no income, and consequently are not embraced in that devise.
Upon the whole, therefore, we think the decree of the Circuit Court was right, and must be affirmed.
Order. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Maryland, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.
Dissenting, Mr. Justice GRIER.
Ennis et al. v..Smith et al.
John F. ENNIS, ADMINISTRATOR DE BONIS NON OF JOSEPH ZOL
KOWSKI AND OTHERS, v. J. H. B. SMITH, ADMINISTRATOR OF GEORGE BOMFORD, LEWIS JOHNSON, ADMINISTRATOR DE BONIS NON OF THADDEUS KosciusKO, JAMES CARRICO, SAMUEL STOTT, GEORGE C. BOMFORD, JACOB GIDEON, ULYSSES WARD, AND JONATHAN B. H. Smith.
Origin of the fund in controversy:
in Paris, in 1806 ; the third and fourth were made at Soleure, in Switzerland, whilst he was sojcarning there in 1816 and 1817. The first and second wills were revoked by the third, and he died intestate as to his
estate in the United States. But the first will, before it was known that he had made the others, was probated by
Mr. Jefferson, in Virginia, and when Mr. Jefferson learned that the General had made other wills, he transferred the fund to the Orphans' Court of the District of Columbia. The Orphans' Court managed the fund for some time, and then Benja. min L. Lear was appointed the administrator of Kosciusko, with the will annexed. He died, leaving a will, and George Bomford one of his executors. Bomford qualified as such, and afterwards became the administrator of Kosciusko de bonis non. He took into his possession, as execator, the estate of Lear, and also the funds of Kosciusko, which had been administered by Lear, and first made his return to the Orphans' Court of the administered funds of Kosciusko, as executor of Lear. Afterwards they were returned by him to the Orphans' Court, as administrator de boflis non of Kosciusko. The Orphans' Court deeming that his sureties as administrator de bonis non of Kosciusko, were insufficient, or that they were not liable for any waste of them, on account of the funds having been received by him as executor of Lear, and not as administrator de bonis non, called upon him for other sureties, under the act of Congress of the 20th February, 1846. He complied with the call, and gave as surcties, Stott, Carrico, and George C. Bomford, and
Gideon, Ward, and Smith. The original bonds of Bomford were given to the Orphans' Court, under the law of
Maryland, which prevailed without alteration in that part of the District of Columbia which had been ceded by Maryland, until Congress passed the act of the 20th February, 1846. The defendant Stott
, Carrico, and George C. Bomford, and Smith, Ward, and Gideon, became the sureties of Bomford, as administrator de bonis non
of Kosciusko, under the act of 20th February, 1846. In the State of Maryland, if an executor or administrator changes any part of an
estate from what it was into something else, it is said to be administered. If an administrator de bonis non, possesses himself of such changed estate, of whatever kind it may be, and charges himself with it as assets, his sureties to his original bond, as administrator de bonis non, are not liable for his waste of them. They are only "liable for such assets of the deceased as remain in specie, unadministered by his predecessor, in the administration. Such is the law of Maryland, applicable to the sureties of Bomford, in the bond given when he was appointed administrator
de bonis non of Kosciusko. But when other sureties are called for by the Orphans' Court, under the third section
of the act of February 20, 1846, and are given, they do not bear the same relation to the administrator that his original suretics did, and they will be bound for the waste of their principal to the ainount of the estate, or funds which he has charged himself by his retarn to the Orphans' Court, as administrator de bonis non, when it called for additional sureties, and for such as the administrator may afterwards
receive. The bonds taken by the Orphans' Court in this case, were properly taken under the
act of the 20th February, 1846. General Kosciusko's Olographic will of 1816, contains a revoking clause of all other
wills previously made by him, and not having disposed of his American funds in that will, nor in the will of 1817, he died intestate as to such funds. The second
Ernis et al. v. Smith et al.
article in the will of 1817, “Je légue tous mes effets, ma voiture, et mon cheval y comprise à Madame et à Monsieur Zavier Zeltner, les homme ce dessus," -record, 105 — is not a residuary bequest to them of the rest of his estate, pot specifically
disposed of in the wills of 1816 and 1817.
France, and had been for fifteen years.
declarations have always been received, in questions of domicil, in the courts of
where has been shown by him who alleges a change of it. But residenco elsewhere repels the presumption, and casts upon him who denies it to be a domicil of choice, the burden of disproving it. The place of residence must be taken to be a domicil of choice, unless it is proved that it was not meant to be a principal and permanent residence. Contingent events, political or otherwise, are not admissible proofs to show, where one removes from his domicil of origin, for a residence elsewhere, that the latter was not meant to be a principal and permanent residence. But if one is exiled by authority from his domicil of origin, it is never presumed that he has abandoned all hope of returning baok. The abandonment, however, may be shown by proof. General Kosciusko was not exiled by authority. He left Polanů voluntarily, to obtain a civil status in France, which he conscientiously thought he could not enjoy in Poland, whilst it continued under a foreign
dominion. Personal property, wherever it may be, is to be disturbed in case of intestacy, ac
cording to the law of the domicil of the intestate. This rule may be said to be a part of the jus gentium. What that law is when a foreign law applies, must be shown by proof of it, and in
the case of written law, it will be sufficient to offer, as evidence, the official publication of the law, certified satisfactorily to be such. Unwritten foreign laws, must be proved by experts. There is no general rule for authenticating foreign laws in the courts of other countries, 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 soal of the State or nation whose law it may be, or by a copy proved to be a true copy, by a witness who has examined and compared it with the original, or by the certificate of an officer authorized to give the law, which certificate must be duly proved. Sach modes of proof are not exclusive of others, especially of codes and accepted histories of the law of a country. See also the cases of Church v. Hubbart, in 2 Cranch, 181, and Talbot v. Seeman, in 1 Cranch, 7. In this case, the Code Civil of France, with this indorsement, “Les Garde des Sceaux de France & la Cour Supreme Des Etats Unis," was offered as evidence to prove that the law of France was for the distribution of the funds in controversy. This court ruled that such indorsement was a sufficient authentication, to make the code evidence in this case, and in any other case in which it may be offered. By that code, the complainants named in this suit as the collateral relations of General Kosciusko, are entitled to receive the funds in controversy, in such proportions as are stated in the nuandate of
this conrt to the court below. The documentary proofs in this cause, from the Orphans' Court, of the genealogy of
the Kosciusko family, and of the collateral relationship of the persons entitled to a decree, and also of the wills of Kosciusko, are properly in evidence in this suit. The record from Grodno is judicial ; not a judgment inter partes, but a foreign judg.
ment in rem, which is evidence of the facts adjudicated against all the world.
Mr. Justice Cat, on did not sit in this cause.
This was an appeal from the Circuit Court of the United
Ennis et al. v. Smith et al.
The appellants were those who filed the bill in the Circuit Court, which was dismissed by that court.
It was argued by Mr. Tochman and Mr. Johnson, for the appellants, and by Mr. Redin, Mr. Marbury, and Mr. Coxe, for the appellees.
The points raised by the counsel for the appellants, were the following:
I. Was Kosciusko's domicil, at the time of his death, in France, as the appellants charge, or was it in Poland, as the appellees maintain ?
It could not be in Poland, since Kosciusko left it, because of its subjugation by the foreign powers, in 1794. Vattel's Law of Nations, Book I. chap. 16, § 195.
It was in France, by his own choice, since 1806 until 4th of June, 1816. (Wills of 1806 and 1816, and conclusions resulting from the admission of the appellees.) Story's Conf. of Laws, § 44-46, § 8-47, 14.
It continued to be in France until his death, upon the prin. ciple of law laid down in 1 Starkie on Evid. (Philad. ed. of 1842, p. 53,“ Presumption as to Continuance.") 1 American Leading Cases, by Hare & Wallace, p. 710, $ 3, and the authorities therein referred to; Story's Confl. of Laws, $ 47, § 16
II. Has the will of 1816 been proved? Have the letters of administration de bonis non to Lewis Johnson been issued with the wills of 1798, 1806, and 1816, as alleged in the bill ? Does the will of 1816 revoke the wills of 1798 and 1806? Is the residue of Kosciusko's property liable for the legacies stated in the wills of 1816 and 1817 ?
The original will of 1816 was proved, recorded, and is lodged for safe keeping in France, and its authenticated exemplification with the French probate was proved and recorded in the Orphans' Court for the District of Columbia, pursuant to the rules laid down in Toller on Evid. p. 71. Van Rensselear v. Morris, 1 Paige's Rep. 13; Story's Confl. of Laws, notes to $ 514 b, on p. 432 of the 2d ed.; Statute of Maryland of 1785, chap. 46, § 2; De Sobre v. De Laistre, 2 Har. & Johns. 191. .
The letters of adıninistration de bonis non to Lewis Johnson were issued with t]! will and other two, as charged in the bill, proved by the decretal of the Orphans' Court, and the deposition of the record of the wills.
The court below had, and this court has now, the power of deciding what effect each of these three wills of Kosciusko should have upon the final disposition of the property sought to be recovered. *1 Jarman on Wills, 4, 22, 23, &c.
Ennis et al. v. Smith et al.
For this purpose the law of the domicil of Kosciusko at the time of his death must be resorted to. Jarman on Wills, 3, 4; Story's Confl. of Laws, $ 465, 467, 468, 479 f, 479 m.
The will of 1798 cannot take effect, because of the uncertainty of its dispositions and objects of the bounty; the will of 1806 is null and void, not being executed according to either of the forms prescribed by the laws of France for making wills; but, good or bad, they have been both revoked by the will of 1816.
The will of 1816, containing the revoking clause of former wills, is a good and valid, olographic will, proved by the depositions on p. 15 and 16 of the record. Arts. 970, 999, 1001, of the Civil Code of Napoleon.
Parol evidence, referred to in the answers, has not been produced; but, if it were produced, it could not be received, to impeach the will of 1816, nor to prove its revocation. Civil Code of Napoleon, Arts. 1035, 1036 ; 12 Wheaton's Rep. 175; Toller on Exec. 76; 1 Madd. Ch. Pr. 81, 552, 555; 2 Starkie on Evid. Part I. Phil. ed. of 1.842,756, and Part II. p. 1284, notea; 1 Greenleaf on Evid. $ 273, 290.
The word “ effets,” used in the 2d clause of the will of 1817, being restrained by the words “ ma voiture et mon cheval y comprise," passes only property of " ejusdem generis,” and nothing else. 1 Jarman on Wills, 692 f; 13 Ves. 36, 45.
Independent of this, the French word “effets” signifies only such property as is about the person. Dictionaire Francais et Anglais, par les Professeur Fleming et Tibbins; Dictionaire de l'Academie Francaise.
Admitted, that for the legacies specified in the will of 1816, the property sought to be recovered, and every other property of Kosciusko, would be liable - but all these legacies had been paid.
The legacies made by the will of 1817 being legacies of specific funds, which were invested in Switzerland and in England, and of such specific property which was left in the house where Kosciusko died, in Switzerland, none of them can charge any other property; but whatever may be the law in this respect, the proof is that these legacies have also been paid.
The accidental omission, in the proceedings, of Mr. and Mrs. Zavier Zeltner, legatees under the will of 1817, is immaterial: first, because they take only such property in kind as comes within the definition of the word "effets," restrained by the words“ ma voiture et mon cheval y comprise," and should claim it from those persons in Switzerland in whose possession these "effets” were left; secondly, because, by the law of France, apon the death of the testator or intestate, the property vests in