WILLS (Continued.)

law of Maryland, which prevailed without alteration in that part of the Dis-
trict of Columbia which had been ceded by Maryland, until Congress passed
the act of the 20th February, 1846. The defendants, 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. Ibid.

12. In the State of Maryland, if an executor or

ministrator 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. Ibid.

13. 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 sureties did, and they will
be bound for the waste of their principal to the amount of the estate or funds,
which he has charged himself by his return to the Orphans' Court, as adminis-
trator de bonis non, when it called for addital sureties, and for such as the
administrator may afterwards receive. Ibid.

14. The bonds taken by the Orphans' Court in this case were properly taken, under
the act of the 20th February, 1846. Ibid.

15. 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 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 the
estate, not specifically disposed of in the wills of 1816 and 1817. Ibid.
16. General Kosciusko was sojourning in Switzerland when he died, but was domi-
ciled in France, and had been for fifteen years. Ibid.

17. His declarations are to be received as proof that his domicil was in France. Such
declarations have always been received, in questions of domicil, in the courts
of France, in those of England, and in the courts of the United States. Ibid.
18. The presumption of law is, that the domicil of origin is retained, until residence
elsewhere has been shown by him who alleges a change of it. But residence
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 other
wise, are not admissible proofs to show, where one remove from his domicil
of origin for a residence elsewhere, that the latter was not meant to be a prin-
cipal 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 back. The abandonment, however, may be shown by proof. Gene-
ral Kosciusko was not exiled by authority. He left Poland 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. Ibid.
19. Personal property, wherever it may be, is to be disturbed in case of intestacy,
according to the law of the domicil of the intestate. This rule may be said to
be a part of the jus gentium. Ibid.

20. 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 fo-
reign laws must be proved by experts. There is no eneral rule for authenti-
cating foreign laws in the courts of other countries, except this, that no proof
shall be received, "which presupposes better testimony behin, and attainable
by the party." They may be verified by an oath, or by an exemplification of
a copy under the great seal of the State or nation whose law it may, be, or by
 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. Such modes of proof are not ex

WILLS (Continued.)

clusive 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 Tal-
bot v. Seeman, in 1 Cranch, 7. In this case, the Code Civil of France, with
this indorsement, "Les Garde des Sceaux de France a 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 Kosci-
usko, are entitled to receive the funds in controversy, in such proportions as
are stated in the mandate of this court to the court below. Ibid.

21. The documentary proofs in this cause, from the Orphans' Court, of the genea-
logy 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 evi-
dence in this suit. Ibid.

22. The record from Grodno is judicial; not a judgment inter partes, but a foreign
judgment in rem, which is evidence of the facts adjudicated against all the
world. Ibid.

23. A will executed in 1777, which devised certain lands in Maine to trustees and
their heirs, to the use of Richard (the son of the testator) for life, remainder
for his life, in case of forfeiture, to the trustees, to preserve contingent remain-
ders; remainder to the sons of Richard, if any, as tenants in common in
tail, with cross remainders; remainder to Richard's daughter, Elizabeth, for
life; remainder to trustçes, to preserve contingent remainders during her life;
remainder to the sons of Elizabeth in tail did not vest the legal estate in
fee simple in the trustees. The 1 e estate or Richard, and the contingent re-
mainders limited thereon, were legal estates. Webster v. Cooper, 488.

24. No duties were imposed on the trustees which could prevent the legal estate in
these lands from vesting in the cestuis que use; and although such duties might
have been required of them relating to other lands in the devise, yet this
circumstance would not control the construction of the devise as to these
lands. Ibid.

25. The devise to Elizabeth for life, remainder to her sons, as tenants in comuton,
share and share alike, and to the heirs of their bodies, did not give an estate
tail to Elizabeth, under the rule in Shelly's case. But upon her death, her
son (the party to the suit) took, as a purchaser, an estate tail in one moiety of
the land, as a tenant in common with his brother. Ibid.

26. One of the conditions of the devise was, that this party, as soon as he should
come into possession of the lands, should take the name of the testator. But
as he had not yet come into possession, and it was a condition subsequent, of
which only the person to whom the lands were devised over, could take advan-
tage, a non-compliance with it was no defence, in an action brought to recover
possession of the land. Ibid.

27. The son, taking an estate tail at the death of Elizabeth, in 1845, could maintain
a writ of entry, and until that time had no right of possession. Consequently,
the adverse possession of the occupant only began then. Ibid.

28. In 1848, the Legislature of Maine passed an act declaring that no real or mixed
action should be commenced or maintained against any person in possession
of lands, where such person had been in actual possession for more than forty
years, claiming to hold the same in his own right, and which possession should
have been adverse, open, peaceable, notorious, and exclusive. This act was
passed two years after the suit was commenced. Ibid.

29. The effect of this act was to make the seisin of the occupant during the lifetime
of Elizabeth, adverse against herson, when he had no right of possession. Ibid.
30. This act, which thus purported to take away property from one man and vest it
in another, was contrary to the constitution of the State of Maine, as ex-
pounded by the highest courts of law in that, State. And as this court looks
to the decisions of the courts of a State to explain its statutes, there is no rea
́son why it should not also look to them to expound its constitution. Ibid.

END OF VOLUME XIV