Ennis v. Smith
55 U.S. 400 (1852)

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U.S. Supreme Court

Ennis v. Smith, 55 U.S. 14 How. 400 400 (1852)

Ennis v. Smith

55 U.S. (14 How.) 400

Syllabus

Origin of the fund in controversy.

Mr. Jefferson's letter concerning it.

General Kosciusko made four wills. One in the United States, in 1798; another in Paris, in 1806; the third and fourth were made at Soleure, in Switzerland, whilst he was sojourning 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 Benjamin 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 executor, 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 bonis 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 20 February, 1846. He complied with the call, and gave as sureties, 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 20 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 20 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 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 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 20 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

Page 55 U. S. 401

article in the will of 1817, "Je legue tous mes effets, ma voiture, et mon cheval y comprise a Madame et a Monsieur Zavier Zeltner, les homme ce dessus" -- record, 105 -- is not a residuary bequest to them of the rest of his estate not specifically disposed of in the wills of 1816 and 1817.

General Kosciusko was sojourning in Switzerland when he died, but was domiciled in France, and had been for fifteen years.

His declarations are to be received as proof that his domicil was in France. Such declarations have always been received, in questions of domicile, in the courts of France, in those of England, and in the courts of the United States.

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 domicile of choice, the burden of disproving it. The place of residence must be taken to be a domicile 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 domicile 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 domicile of origin, it is never presumed that he has abandoned all hope of returning back. The abandonment, 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.

Personal property, wherever it may be, is to be disturbed in case of intestacy according to the law of the domicile 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 seal 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. Such 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, 2 Cranch 181, and Talbot v. Seeman, in 1 Cranch 1, 7 [argument of counsel -- omitted]. In this case, the Code Civil of France, with this endorsement, "Les Garde des Sceaux de France a la Coeur 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 endorsement 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 mandate of this Court 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 judgment in rem, which is evidence of the facts adjudicated against all the world.

MR. JUSTICE CATRON did not sit in this cause.

The whole case is set forth in the opinion of the Court.

Page 55 U. S. 412

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