Ennis et al. v. Smith et al.

the lawful heirs, who stand in loco of legal representatives of the deceased at common law. Civil Code of Napoleon, Art. 724; Story's Confl. of Laws, § 507, 508, 516.

It follows, from the above rule, that when the lawful heirs of Kosciusko recover the property which is not wanted here by local administrator, all claimants residing in Europe, whether they are legatees or creditors, will have a right to establish there their claims. It would be immaterial, then, were all the claimants residing in Europe omitted in these proceedings, as no decree pro confesso taken here will bar their claims there. Civil Code of Napoleon, Arts. 724, 870, 873, 1011, 1025, 1026.

Admitting, for the sake of argument, the existence of such European claims, this is no defence; the appellees in such a case should bring money into court- show good reasons of their apprehension for safety, and pray that the appellants may interplead their right with other claimants. 2 Story's Com. on Eq. § 805, 809, &c.; Mitf. Eq. Plead. by Jeremy, p. 48, 49.

The

III. Have the appellants proved that Kosciusko died unmarried and without issue, and that they are his next of kin, entitled to the residue of undisposed of property? "In civil cases, slight evidences of right or title are sufficient- as against a stranger who possesses no color of title." 1 Starkie on Evid. Phil. ed. of 1842, p. 544. In case of Folger's Lessee v. Simpson, (1 Yeates's Rep. 17,) ex parte affidavit, made in England, was held to be sufficient evidence of pedigree against strangers. Kingston v. Lesley, 10 Sergeant & Rawle's Rep. 383. appellees are all strangers, having no color of title to the estate of Kosciusko. The appellants, to establish their title thereto, produce a decree of the nobility of the Government of Grodno, and a decree of the Court of Kobryn, in the province of Lithuania, formerly Poland, now a part of the Empire of Russia, which were proved as to their authenticity, and as to the competency of the tribunals which passed them; first, in the Orphans' Court for the District of Columbia, in the course of legal proceedings against Bomford, deceased administrator, and subsequently, by depositions taken under the commission in the

case.

The originals of these foreign decrees, written in the Russian language, are on file in the court below. Their translations will be found on p. 73, Exhibit A, and on p. 80, Exhibit B. These translations are judicial- they were made under oath, taken in open court. The originals, written in the Russian language, are. not in the record, from reasons stated in the answer of the clerk of the court below.

The authenticity of these documents has been established by the testimony that the seal of the Assembly of the Nobility on

Ennis et al. v. Smith et al.

the decree of pedigree, (marked A, on p. 73,) and the seal of the Court of Kobryn in the decree (marked B, on p. 80,) are genuine seals, which alone is sufficient, under the principles laid down in 6 Wendell's Rep. 484; 1 Paine's Rep. 614; Norris's Peake's Evid. 58, conjointly with 60, 108, and 109; 3 East's Rep. 222; Act of Maryland, of 1785, ch. 46, § 6.

Though the foregoing authorities do not require that the signatures be proved, to establish the authenticity of a decree or judgment the appellants proved two of the signatures on the decree of pedigree, marked A, on p. 80, by the deposition which, upon the principle laid down in Gresley's Eq. Evid. p. 120, and the authorities therein referred to, would be sufficient, were it deemed necessary to prove the signatures.

The seals and signatures not proved, (which are appended to the certificates, purporting to attest the signatures and seals of the Assembly of the Nobility of Grodno, and of the Court of Kobryn,) are useless appendages, the law not admitting such certificates as evidence. 13 Peters's R. 209; 2 Cranch's R. 187.

The competency of the jurisdiction of the Assembly of the Nobility of Grodno, and of the Court of Kobryn, in matters decided upon by the exhibited decrees of pedigree, &c., is proved by the depositions of witnesses skilled in law, which depositions prove also that the decree of the Assembly of the Nobility, marked A, on p. 73, falls within the scope of such as are called in rem, and bind everybody.

Depositions taken in the Orphans' Court are evidence in this case, upon the principle laid down in 1 Starkie on Evid. Phil. ed. of 1842, p. 315-the more so when they were brought before the court below, through the medium of a commission taken in

the case.

Independent of this witness, Judge Kalussowski was reëxamined under the commission, and another witness, Tysowski was examined under it.

The decrees, marked A and B, are as conclusive evidence to prove pedigree in this country, as they are in the country from which they come, upon principles laid down in 1 Starkie on Evid. Phil. ed. of 1842, p. 253, "Judgments in rem." Id. p. 30, "Reputation, in what cases evidence." 2 Starkie on Evid, id. ed. part 1, p. 842; 1 Id. 275; Norris's Peake's Evid. 101, 104-6; 1 Starkie on Evid. id. ed. 285–6, 295–6; 1 Greenleaf on Evid. §§ 525, 543; Story's Confl. of Laws, § 593.

The objection that the decree of pedigree, marked A, was ob tained upon ex parte proceedings, &c., cannot be sustained, when it is proved that it was obtained upon such proceedings as the law of the country from which it comes prescribes, (depositions on pp. 85, 69, 70, of the record.) 4 Peters's R. 472, 475; Story's

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Confl. of Laws, §§ 605, 608; Peake's Evid. 101, 104-106; 1 Greenleaf on Evid. § 547.

The city of Grodno is the capital, and the seat of the government of the Province of Lithuania, which is called Government of Grodno-just as is called the government of the United States, "Government of Washington." Encyc. Brit. vol. 10, p. 799; Cycl. of Soc. for Diff. of Useful Knowledge, vol. 11, p. 455. Hence comes the incongruity of the testimony, in calling the official seal of the nobility of Grodno "the Government of Grodno's official seal," "a Government seal of Lithuania." But that both these expressions mean to speak of the seal of the nobility of Grodno, proves the fact that both witnesses had before them the document with the seal described in its body, on p. 80 of the record, as the seal of the nobility of Grodno.

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.

Independent of the above, witness Kalussowki explained himself as to his testimony by deposition.

The Assemblies of Nobility, when called upon to decide on pedigree, issue as many original copies of decrees as there are interested parties.

In this case, four original copies of such decree were issued and delivered to the a, ellants. The original copy, of which the translation is marked A, on p. 73 of the record, is one of these four copies. None of these copies is "better evidence." Each of them is evidence of the same decree for all purposes.

Reference is made that a certain Pole, Klimkiewicz, filed a bill claiming the estate, as next of kin of Kosciusko. This individual attempted to impose in the premises-when, upon the death of the former counsel of the appellants, they had no one here to take care of their claim. This suit abated by the death of Klimkiewicz and of administrator Bomford, and its papers formed no part of the record in the court below.

The residue of Kosciusko's estate goes to the appellants, as his next of kin, upon the principle laid down in 1 Jarman on Wills, 3, 4, &c.; Civil Code of Napoleon, art. 750.

IV. Are the defendants liable to account, as is charged in the bill, on pp. 6, 8, of the record?

The decree dismissing the bill against Jonathan B. H. Smith, as administrator of the estate of Bomford, is not questioned-Bomford having died insolvent, (pp. 48, 109, of the record.)

As to the same Jonathan B. H. Smith, trustee of the property

Ennis et al. v. Smith et al.

which Bomford delivered to him as counter security, with the deed of trust, on p. 23 of the record, he is bound to account for it to the appellants, upon the principle laid down in 1 Story's Com. on Eq. § 502; Eq. Abridg. 93, K. 5; Comm. Dig. Chancery, 4, D. 6; Wright v. Morley, 11 Ves. 22. He is bound also to account, upon the same principle, for the sum of $4,156.92, for rents, &c., which he admitted to hold in his hands-in the answer on p. 49 of the record- and for such after rents as accrued since the filing of that answer.

Lewis Johnson, administrator de bonis non of Kosciusko's estate, in his original answer, (p. 29 of the record,) admitted, that at the time of the filing of it he had under his control stock of the Bank of Washington of the nominal value of $5,580.00-of which the market price was then 60 per 109and $200 in cash. In his amended answer, (on p. 62 of the record,) he informed the court that said bank refused to pay him further dividends, under "pretence" that this stock does not belong to Kosciusko's estate; and on p. 63 of it, he admitted that he had in hands $268.28 in cash. In view of these admissions, the decree of the court below, dismissing the bill against him as administrator de bonis non, is erroneous; he ought to account for the cash and the certificate of the stock which he holds.

As to the liability of the sureties of Bomford:

This is the only point upon which the court below delivered a written opinion. It is not in the record, the Judges not having filed it in the case, but it will be found in a separate pamphlet, published by the appellees.

Grounds upon which the court below dismissed the bill against the sureties, are as follows:

First, because the original assets of Kosciusko having been converted into money, by Lear, the first administrator, this money and the evidences of the new investments could not (in the opinion of the court below) pass lawfully to Bomford as the administrator de bonis non of the estate of Kosciusko, but he ought to have administered them as Lear's executor, (pp. 9, 12, 13, of the opinion); secondly, because Bomford, administrator de bonis non, "converted and used" the funds of Kosci usko's estate before the date of the bonds, (id. 14); thirdly, because the act of Congress of 1846, (chap. 8,) and the bonds obtained under it, are prospective, and not retrospective, (id. 16-21); fourthly, because what is retained by the first administrator cannot go to the administrator de bonis non, (id. 21–24); fifthly, variances of the bonds referred to in the bill, and exhibited as evidence, were alleged, (id. 7,) but the court expressed no opinion as to it.

Ennis et al. v. Smith et al.

The counsel for the appellees made the following points, many of which were divided into subdivisions. Mr. Coxe argued points 1, 2, 4, and 5. Mr. Redin, points 7 and 8, and part of 3. Mr. Marbury the remaining subdivision of 3, and point 6.

The appellees, the sureties of Bomford, contend:

I. That the Circuit Court had no jurisdiction of the cause. Act of 21st Feb. 1801, § 5; 3d March, 1801, § 3; Judicial Act of 1789; Strawbridge v. Curtis, 3 Cranch, 267.

II. That the claim must be made through the administrator of Kosciusko's domicil.

The administration in the District of Columbia, if the domicil was, as the complainants allege, in France, was merely ancillary, and, after paying debts, &c., the residue of the estate ought to be remitted to France, to the executors under the wills of 1816 and 1817; and complainants, all being or representing foreign parties, must proceed against such foreign executors, and cannot sue the ancillary administrator here; and the bill makes no case in which a foreign distributee can maintain an action here. Story's Confl. Laws, § 513, and cases cited in the notes.

III. That if the appellants have proved themselves to be the true representatives of Kosciusko, and can claim directly, the defendants, as sureties of Bomford, as administrator de bonis non of Kosciusko, are not liable to them,

1. Because the whole of the original assets were converted into money by Lear in his life, except Bank of Columbia stock; and because the money and new securities on hand at his death passed to Bomford, as executor of Lear, for distribution, and Bomford's sureties, in that capacity, if any, are answerable; that Bomford had no legal right or authority, as administrator de bonis non, to receive such money and securities; and the defendants, as sureties for him in that character, are liable only for what he could lawfully and rightfully receive in virtue of his office as such administrator; that their bond does not cover what is claimed.

2. Admitting Bomford came rightfully, as administrator de bonis non, into possession of the money and securities left by Lear, the sureties are not liable to the full extent of the complainant's claim; because Bomford wasted and converted to his own use, prior to the date of the bonds, as shown by complainant's proof, $30,625.47, part of said assets, for which the sureties are not liable, their bonds being prospective and not retrospective.

3. 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; and further, that said bonds are void.