The national era. [volume] (Washington [D.C.]) 1847-1860, 1853-05-05
KOSCIUSKO CASE.

Some weeks ago, we noticed the professional
ability and perseverance, Of Maj. G. Tochman
attorney and counsel of the heirs of KOsciuskO
in bringing to tho final adjudication this pro
tracted case, which has occupied many of the
best legal minds of our bar during thrty-fyt
years We now lay before our readers a con
densod synopsis of the opinion of the Supreme
Court of the United States, which was pre
pared aad delivered by his Honor Justic,
Wayne. Disposing as it does of many lega
questions which were unsettled before, it de.
serves the attention of the public in general
The mandate annexed to the opinion contains
the names Of the living heirs at law of the
illustrious KOsciusko, and shows the propor.
tions in which they take the estate which he
left here.
SYNOPSIS, BY JUDGE WAYNE
Cen kO'ciusko made four wills. One in
the United States in 1898, another in Paris in
1906 the third and fourth were made at So.
leure in Switzerland. whilst he was soiourning
there, in 1916 and 1917
The first and second wills were revoked by
the third, and he died intestate ~ to his estate
in the United States.
But the first will before it was known that
he had made tho others was probated by Mr..
Jefferson, in Virginia and, when Mr.. Jefferson
learned that the General had made other will.
hc tran' torrcd 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 admins
TRAITOR of kosciuskO with the will annexed
lie died leaving will, and George Bomford
one OF his executors. BOmford qualified as such
ana afterwards became the administrator of
koSciurko de bons non. He took into his nos
session, rs executor the estate of Lear. and also
the funds of KOscinskO which had been ad-
mnistcred 10y Lear, and first made his return
to the Orphans Court of the administered funds
OF koscusko AZ executor of Lear Afterwards
they were returned by him to the Orphans
Court a1 administrator de bonis non of 'Kosci-
uSko The Orphans Court, deeming that his
suret'cs AZ administrator de bons non of Kosci
usko were insufficient, or that they were not
liable Tor any waste of them on account Of the
funds having been received by him as executor
OF Lear, and not a. administrator do bonis non,
called upon him for other suretcs, under the
act OF Congress OF the goth February. 1916
lie compiled with the call and gave az sureties
Ntott Carrlco and George c. Bomlord, and
Gideon, Ward and Smith
The original bonds of BOmiord we're given TO
the Orphans Court under the law Of MSry
land, which prevailed without alteration in
that part OF the District of Columbia which
had been coded by Maryland, until Congress
passed the act Of the Goth February, 1876. The
defendants, S'ott Carrco. and G. G.. Bomfurd
AID Smith, Ward, and Gideon. became the
suretics Of Bomlord as administrator de bonis
non of koscu,ko, under the act of 2Oth Fobru.
airy, 1916.
In the State Of Maryland, if an executor or
administrator changes any part of an estate
from what it was into something else. it il said
t. be administered Ii an administrator de bonis
non pos esscs himself OF such changed estate,
ct Whatever kind it may be, and charges him.
self with 1t as as1ets his suretes to his original
bond as administrator dc bonis non are not lia-
Bile iOr his waste Of them. They are only liz,
bic for such assets of the deceased ms remain
IN specie unadministered by his predecessor in
the administration Such is the law of Mary
land applicable to the sureties Of Bomtard in
the bond given when he was appointed admin
latrator dc bOns non of k0sciisko
bur, Wien other surete1 are called for BY
the Orphans Court, under the 30 section of
the act ct February Goth, 1916 and arc given,
they do not bear tho same relation to the ad.
inInisiralor thIt his original suretes did and
they VIII ln bound for the waste of the prnci-
pal L" the amount OF the estate or funds. which
he has charged himself by his return to the
Orphans Court "a administrator de bons non
when 1t called for additional suretcs and for
such rs the administrator may afterwards re-
ccivc
The bonds taken by the Orphans Court in
~ "a. l.. i
the 20 February 1916
General koscusko's Geographic will, of 1915,
contains revokng clause of all other wills
previously mado by HIM and, not having dis.
posed ct his American funds in that will nor
III the VIII OF 1917, lac died intestate as TO such
funds The second article in the will of 1917
30 iegue tous mes ELECTS, ma voiturc, ct non
"heyh y comprise Il Madame ct a Monsieur
Ityicr Icitncr, les nommc CT dessus.p Record
100 } IL not residuary bcquest to them of the
rest ol hls estate, not specifically disposed Of in
the wills of 1916 and 1917.
General hoSewko was soiournug in Swift.
rrland when IN died hut was domicilcd in
France, and had been for fifteen yenrs.
HIS declarations are to be received rs proo
that his domicll was in France
Such declarations have always been received
IN questions OF dOmiC in the courts of France
IN those Of England, and in the courts of th,
United States
The presumption Of law H. that the domici
ct origin is retained until residence elsewhere
has been shown by him who alleges u chang
oi 1t. But residence elsewhere repes the pre-
sumption, and casts upon him who denies it +
he domcil of choice tho burden of disproy
lng At. The place of residence must DO takcr
to he a d"ach OF choice, unless it is prove
thdt u was not meant 10 be n principal an,
permanent residence Contingent events. po
Ilticai or otherwise, are not admissible proof
to show, where one removes from his domici
OF origin IA residence elsewhere that tn
Latter was not meant to DO principal and per
manent residence. Bat if one is cxlcd by au
thorty from his domicl Of origin. it is ncye
presumed that he has abandoned all hone q
returning back The Abandonment, howoyc,
may bo shown by proof Gen Kosciusko wa
not cxled hy authority He left Poland yolun
tarlly, to obtain u civil status in France, While
he eolscicntiously thought ho conld not cnjo
IN Poland, whilst il continued under ioreig
dominion
Personal property wherever it may be, is {
po uiStil' n'ol m case of intostacy, according
the law OF the donicll Of the intestate. Tn
rule may be said to be II part of the jus yea
tIum.
What that law Is, when foreign law az
plies, mus, be shown by proof of it, and in tn
case Of written law, it will be sui lent "a oiTc
as evidence the official publication Of tho law
certified satisfactorily to be such
Unwritten foreign laws must be proved !,
experts. There is no general rule for authen
ticatng foreign laws in the courts OF othe
c0untrea except this, that no proof shalt be r,
u celVed, (which presDrnOgps hpttar tqstimon
behind, and attainabls by the party" The