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Ennis et al. v. Smith et al.

IV. That there is no proof in this cause that the appellants are the next of kin of Kosciusko.

V. If the complainants are the next of kin, and if there be liability on the part of the sureties, there was no intestacy by Kosciusko as to these funds; but if the will of 1798 be revoked, or its trusts cannot be carried out, then the will of 1817 disposes of the whole fund to Mr. and Mrs. Zavier Zeltner, and intercepts the claim of the next of kin.

As to the trust of the will of 1798, vide 2 Story Eq. $$ 1169, 1172, 1176; Brocket's case, 9 How.; Girard's, 2 How.;.Bap. Ass'n, 4 Wheaton.

Kosciusko did not intend to die intestate as to any of his property; this is shown by his frequent wills, and by the introductory clause in the will of 1817.

The words of the will of 1817, in the introductory clause are, "smes biens ;" in the clause of gift (the second) “ tous mes effets, ma voiture, et mon cheval y comprise."

Standing alonu, the words are broad enough to pass his whole estate. “Mes biens,meaning "estate," " what a man is worth," and “ tous mes effets.“ all or the whole of my effects or property.”

The words “tous mes effetswould pass the whole residue; and the introduction of the words, “my carriage and horse included," was not for the purpose of restricting or qualifying the former terms, but resulted from the testator's anxiety that those articles should pass under the general terms.

The expression is “included;" and the rule of ejusdem generis is inapplicable. The clause in this will of 1817 comes within the qualifying cases upon that rule, of Fleming v. Burrows, 1 Russ. C. Č. 277; Kendal v. Kendal, 4 Russ. C. C. 360, (2 Wm's Ex’ors, 1019); 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.

It is alleged that France was the domicil of the intestate at the time of his death, and that by the law of France, then in force, the succession to the whole of the said estate was cast upon the descendants of his sisters, representing the parents living at the time. VOL. XIV.

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Ennis et al. v. Smith et al.

The defendants contend

1. That there is no evidence to prove the domicil, as alleged. Mere residence, is not in itself proof of a change of domicil; it must be animo manendi. Story's Confl. of Laws, $ 39; 1 Cur. E. R. 856; 2 Id. 897; 7 Clark & Fin. 876.

2. That the law of the assumed domicil-is not set forth in the bill.

3. That there is no evidence in the case, to prove the law of France providing for the succession of an intestate's personal estate.

To prove this law, as alleged, the complainants offered in evi. dence a printed volume of the Code Napoleon. To the admissibility of which, for such purpose, the defendants objected; and they rely on 1 Greenleaf, $8 487, 488; 3 Wend. Rep. 173; 5 Id. 375, 384, and 389.

The defendants also contend, that if the printed volume of the 'code be received as'admissible, the law. as contained in the Code does not entitle the complainants to the succession of said estate, as claimed by them. They refer to the Code, book 1, § 11; book 3, $.726.

VII. That proper parties are not made.

1. Lear's sureties, as administrator of Kosciusko, ought to have been made parties. .

2.. So ought Bomford's sureties, as executor of Lear.

3. So ought Bomford's original sureties, as administrator de bonis non of Kosciusko.

4. And so ought Mr. and Mrs. Zavier Zeltner, the residuary legatees in the will of 1817.

There is no averment in the bill, of the insolvency of any of the omitted sureties to excuse the omission. : The averment goes no further than that the original sureties

of Bomford, as administrator de bonis non, are dead, and the bond is open to the plea of limitations. Story's Eq. Pl. § 169, and note 5; Madox v. Jackson, 3 Atk. 406; Cockburn v. Thompson, 16 Ves. 321, overruling Stanley v. Cook, Moseley's Rep. 383, &c.

VIFI. That the remedy against the sureties was at, law on the bond, and not in equity.

The sureties severally filed demurrers, general and special, to the complainants' bill; in support of which, they contend that the complainants have a free and unobstructed remedy at law against them on their bonds, and have, therefore, no right to bring them before the court as parties in this cause.

In the case of Richardson v. Jones, (3 Gill & J. 163,) it was held that a court of chancery had no jurisdiction (on petition by a trustee acting under a decree of the Chancellor to sell land,

Ennis et al. v. Smith et al.

to order the purchaser and his sureties, who had given a bond for the purchase-money, to bring the same into court, to be paid to the trustee. The court say, the contract on this bond is a purely legal one, and can be enforced by an action at law and trial before a jury.

In the case of Boteler & Belt v. Brookes, (7 Gill & J.) 143, on petition to the Chancellor to compel the sureties in a trustee's bond (he being dead and insolvent,) to bring the proceeds of a sale made by the trustee, into court, the court held that the obligation of the sureties on their bond was purely legal, and could be enforced in a court of law only.

In Brooke vi Boteler et al. (12 Gill & J. 307,) it was held that a bill in chancery might be maintained against sureties in a bond, when there could be no remedy at law. In the particu. lar case, the trustee being dead, insolvent, and there being no administration on his estate, there could be no order by the court for the payment of the complainants' claim. At page 317, the court say, “ No person could maintain a suit at law in such case, until payment was awarded by order of the court under whose decree the land was sold, and demanded of the trustee."

The cases in 4 Munford's Rep. 289; 2 Edw. Ch. Rep. 67; 9 Porter's Rep. 697; were determined on the ground that a preliminary judgment, and execution against the administrator, was necessary to establish a devastavit, before suit could be main. tained against sureties in an administration bond; and the court say that a complainant would be without remedy, if not allowed to sue in chancery.

It was said this would not be allowed in an ordinary case, where the administrator was alive, and within the reach of the common-law courts, and a judgment could be obtained against him. Bolton v. Powell, 8 Eng. L. and E. Rep. 165.

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 adminis. tration bond, against the sureties, after the lapse of thirteen months, without having first obtained judgment and issued execution against the administrator. 7 Gill & J. 475.

More than thirteen months had elapsed between the filing of the new bonds and the filing of the bill.. A right of action at law had accrued on the bonds before the filing of the bill.

Again; the complainants do not in their bill aver that there was a surplus in the hands of Bomford, as administrator de bonis non, after the payment of debts, to which they, as distributees of the estate of Kosciusko, under the French law, are entitled. Which omission, the defendants say, is bad on demurrer Stevens v. Frost, 2 Younge & Coll. 297.

Ennis et al. v. Smith et al.

Mr. Justice WAYNE delivered the opinion of the court.

The purpose of this suit is to recover for the descendants of the sisters of General Kosciusko, the funds which he owned in the United States at the time of his death.

Several points are suggested by the pleadings.

We will consider such of them as we think necessary, after having stated the origin of the fund in controversy, and the management of it, from the time that Kosciusko placed it u nder the care of Mr. Jefferson until the death of Colonel Bom ford, the administrator de bonis non, in eighteen hundred and fortyeight.

General Kosciusko came to the United States early in our revolutionary war, to join our army. He did so at first as a volunteer. In October, 1776, he received from Congress the commission of Colonel of Engineers. He served with great distinction until the close of the war, and then retired from the army, after our independence had been acknowledged, with the rank of Brigadier-General. He stood prominently with those great men of our own country, with whom he had given seven years of his life to secure its freedom and nationality. He returned to Poland, poorer than when he came to us, and was, in fact, our creditor for a part of his military pay.

His subsequent career in Europe is a part of its history. that we can say of it in connection with this case, is, that he returned to the United States after he was released from the prisons of Catherine, by her son and successor, the Emperor Paul. Whilst he was absent from the United States, a military certificate for twelve thousand two hundred and eighty dollars and fifty-four cents, had been issued, as due to him for services during the war. Not having been, for several years, in a situation to claim or to receive it, until his return to the United States, in 1798, Congress passed an act in 1799, (6 Stat. at Large, 32,) directing the Secretary of the Treasury to pay to him the amount of the certificate, with interest from the first day of January, one thousand seven hundred and ninety-three, to the thirty-first of December, one thousand seven hundred and ninety-seven. It was not a gratuity, but a simple act of justice, graduated then by the inability of our country to do more. It yet rernains for us to give some national testimonial of his virtues, and of his services in the war of our independence. Seven years of peril and suffering, of wise forecast in counsels of war, and of dauntless bravery in the fielu, inay claim from our people grateful recollections, and the expression of them in the best way that they can be commemorated by art. The cadets at West Point, unaided by the Government, have reared to his memory a monument there, and it is the only memorial of him upon the face of our land.

Ennis et pl. v. Smith et al.

That military certificate, with a part of the interest upon it, was the basis of the fund now in controversy.

It was paid to Kosciusko, was invested in American stocks in his own name, and placed under the care and directign of Mr. Jefferson.

In a letter from Mr. Jefferson, in answer to one from H. E. M. De Politica, the Russian Minister at Washington, of the 27th of May, 1819, written by the latter, at the instance of the Viceroy. of Poland, to make inquiries about the fund, Mr. Jefferson says: "A little before the departure of the General from America, in 1798, he wrote a will, all with his own hand, in which he directed that the property he should possess here, at the time of his death, should be laid out in the purchase of young negroes, who were to be educated and emancipated - of this will he named me executor, and deposited it in my hands. The interest of his money, was to be regularly remitted to him in Europe. My situation in the interior of the country, rendered it impossible for me to act personally in the remittances of his funds, and Mr. John Barnes, of Georgetown, was engaged, under a power of attorney, to do that on commission; whiềh duty he regularly and faithfully performed, until we heard of the death of the General. We had, in the mean time, by seasonably withdrawing a part of his funds from the bank in which he had deposited them, and lending them to the government during the late war, (with England,) augmented them to seventeen thousand one hundred and fifty-nine dollars sixtythree cents, to wit: $12,499.63, in the funds of the United States, and $1,600 in the Bank of Columbia, at Georgetown. I delayed for some time the regular probate of the will, expecting to hear from Europe, whether he had left any will there, which might affect his property here. I thought that prudence and safety required this, although the last letter he wrote me before his death, dated September 15th, 1817, assured me of the contrary, in these words: Nous avançons tous on age, c'est pour cela, mon cher et respectable imi, que je vous prie de vouloir bien (et comme vous avez tout le pouvoir,) arranger qu’ apres la mort de notre digne ami, Mr. Barnes, quelqu'un d'aussi probe que lui prenne sa place, pour que je reçoive les interests ponctuellement de mon fonds; duquel, aprés ma mort, vous savez, la destination invariable, quant à présent faites pour le mieux comme vous pensez.'

" Translation. “ We all grow old, and for that reason, my dear and respectable friend, I ask you, as yon have full power to do, to arrange it in such a manner that, after the death of our worthy friend, Mr. Barnes, some one, as honest as himself, may take his place,

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