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WILLS (Continued.)

law of Maryland, which prevailed without alteration in that part of the District of Columbia which had been ceded by Maryland, untit 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, 1816. lbid. 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 wiih is 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 suretics diu, 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 additional 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 wride 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, ct 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 deelarations are to be received as proof that his domicil was in France. Such

declarations have alwavs been received, in questions of domicil, in the courts

of France, in those of England, and in the courts of the United States. Zoid. 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 thc presumption, and casts upon him who denies it to be & domicil of choice, the burden of disproving it. The place of residence must be ta

ken 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 otherwisc, 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 presunied that he has abandoned all hope of returning back. The abandonmenu, however, may be shown by proof. General 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 ihe jus gentium. Ibid. 20. What ihat 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 eneral rule for authenticaring foreign laws in the courts of other countries, except this, that no proof shall be received, " which presupposes better testimony behin d, 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 narion whose law it may be, or by å 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 aathorized to give the law, which certificate must be duly proved. Such modes of proof are not ex

VOL. XIV.

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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 omplainants 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 geneslogy 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 trustecs, to preserve contingent remainders ; 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 l 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 háve 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 tepants 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 hạd 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 advantage, 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 ths 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 statates, there is no rea*son why it should not also look to them to expound its constitution. Ibid.

END OF VOLUME XIV

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