St. John v. Chew.

there decided, that the devise to Joseph Eden did not create an estate-tail, but that the devise over, upon the event of his dying without issue, was a limitation over, as an executory devise, to Medcef, the survivor. That the opinion of the court was, that the devise over to the survivor did [*166 not depend on an indefinite failure of issue, but only on a failure of issue at the time of Joseph's dead. "This, then," said the chief justice, "is the law of the land, and must govern every other case coming within the same principle. And I must be allowed to say, that subsequent reflec-. tion has confirmed my conviction of the soundness of the decision in the court of errors. Stare decisis is a maxim essential to the security of property. The decisions of courts of law become a rule for the regulation of the alienation and descent of real estate; and when that rule has been sanctioned and adopted in our courts, it ought to be adhered to, unless manifestly wrong and unjust."

Other questions were, however, embraced in this case, and it was afterwards brought before the court of errors (2 Cow. 333), and a preliminary question was made, whether the court would hear an argument on the point decided in the case of Anderson v. Jackson. But as that question was so involved with other questions in the cause, it was found difficult entirely to separate them, and the argument proceeded; the president of the court, at the same time, observing, that he should suppose counsel would not question any point plainly decided in Anderson v. Jackson, both in its principle and object, and that he had no doubt, the court would abide by its decision in that case. In the course of the argument, when the bearing of the case of Anderson v. Jackson was fully understood, it was proposed to stop the counsel, so far as the decision in that case was called in question; and the chancellor (SANFORD) expressed his determination to adhere to that decision. That he understood it to fix distinctly a construction upon the clause which devises to Joseph Eden, and was prepared to say, it did not carry an estatetail, but a fee determinable on his death without issue then living. And although the counsel were allowed to proceed, and the question again fully argued, the court, when they came to pronounce judgment, disclaimed, in very strong language, any intention to call in question the decision of Anderson v. Jackson. CRAMER, Senator, observes: "The court has been called upon, in a very solemn manner, to review its decision on an important *rule of law affecting titles to real property. But we have not, in my view of the subject, the power (and by power I mean right) [*167 now to question or impeach that judgment rendered by this court, and founded on the uniform decisions of the supreme court, during a period of mcre than seventeen years. Wills have been made, and estates settled, on the principle of these cases, which have been deemed and treated as the settled law of the land." And the judgment of the supreme court was unanimously affirmed, with the exception of one senator.

After such a settled course of decisions, and two of them in the highest court of law in the state, upon the very clause in the will now under consideration, deciding that Joseph Eden did not take an estate-tail, a contrary decision by this court would present a conflict between the state courts and those of the United States, productive of incalculable mischief. If, after such an uninterrupted series of decisions for twenty years, this question is not at rest in New York, it is difficult to say, when any question can be so

St. John v. Chew.

considered. And it will be seen, by reference to the decisions of this court, that to establish a contrary doctrine here, would be repugnant to the principles which have always governed this court in like cases.

It has been urged, however, at the bar, that this court applies this principle only to state constructions of their own statutes. It is true, that many of the cases in which this court has deemed itself bound to conform to state decisions, have arisen on the construction of statutes. But the same rule has been extended to other cases; and there can be no good reason assigned, why it should not be, when it is applying settled rules of real property. This court adopts the state decisions, because they settle the law applicable to the case; and the reasons assigned for this course, apply as well to rules of construction growing out of the common law, as the statute law of the state, when applied to the title of lands. And such a course is indispensable, in order to preserve uniformity; otherwise, the peculiar constitution of the judicial tribunals of the states and of the United States, would be productive of the greatest mischief and confusion.

*The case of McKeen v. Delancy's Lessee, 5 Cranch 32, arose *168] upon the construction of a statute. And the court say, "If the act then in question was for the first time to be construed, the opinion of the court would be, that the deed was not properly proved, and therefore, not legally recorded. But in construing the statutes of a state, on which land titles depend, infinite mischief would ensue, should this court observe a different rule from that which has been long established in the state." And whether these rules of land titles grow out of the statutes of a state, or principles of the common law adopted and applied to such titles, can make no difference. There is the same necessity and fitness in preserving uniformity of decisions in the one case as in the other. So also, in the cases of Polk's Lessee v. Wendell, 9 Cranch 98, and Thatcher v. Powell, 6 Wheat. 127, the construction of state statutes respecting real property was under consideration; and the court say, they will adopt, and be governed by the state construction, when that is settled, and can be ascertained, especially, where the title to lands is in question. But in the case of Blight's Lessee v. Rochester, 7 Wheat. 550, which arose in Kentucky, the question was not upon the construction of any statute, but related to the doctrine of estoppel, between vendor and vendee; and it was urged at the bar, that the question was settled by authority in Kentucky, aud cases cited to establish the point. The authorities were examined, and considered by the court as not deciding the question; but no intimation is given that they were inapplicable, because the question did not involve the construction of a statute. And the case of Daly v. James, 8 Wheat. 535, which arose in Pennsylvania, is directly in point. The question there was upon the interpretation of a clause in a will, which had received a judicial construction by the supreme court of that And it was urged, as it has been here, that it was not one of those cases where the decisions of state courts, on questions of local law, established rules of property which this court could not disturb. But the court said, they always listened with respect to the adjudications of the different states, when they apply. And in a question of so much doubt, they were *169] disposed, upon this point, to acquiesce in the decision of the supreme court of that state (Smith v. Folwell, 1 Binn. 546), that the word "heirs" in the will, is to be construed to be a word of limitation.

state.

Armstrong v. Lear.

In that case, this court adopted a single decision of the state court upon the question. But, in the case now under consideration, there have been two decisions in the two highest courts of law in the state, upon the identical question now in judgment, and which were in conformity to a settled course of adjudications for twenty years past. After such a series of adju dications for such a length of time, in the state courts, upon the very point now before us, and relating to a rule of landed property in that state, we do not feel ourselves at liberty to treat it as an open question.

Judgment affirmed, with costs.

ARMSTRONG V. LEAR, Administrator, with the will annexed, of Kosciuszko. Will.-Probate.

A testamentary paper, executed in a foreign country, even if executed so as to give it the effect of a last will and testament by the foreign law, cannot be made the foundation of a suit for a legacy of this country, until it has received probate here, in the court having the peculiar jurisdiction of the probate of wills and other testamentary matters.

The bill,

APPEAL from the Circuit Court for the District of Columbia. filed on the chancery side of the circuit court, stated, that Thaddeus Kosciuszko, on the 5th of May 1798, placed a fund in the hands of Thomas Jefferson, and executed a will, as follows:

“I, Thaddeus Kosciuszko, being just on my departure from America, do hereby declare and *direct, that, should I make no other testamen[*170 tary disposition of my property in the United States, I hereby authorize my friend, Thomas Jefferson, to employ the whole thereof in purchasing negroes, from among his own, or any others, and giving them liberty, in my name, in giving them an education, in trade or otherwise, and in having them instructed for their new condition, in the duties of morality, which may make them good neighbors, good fathers or mothers, husbands and wives, in their duty as citizens, teaching them to be defenders of their liberty and country, and of the good order of society, and in whatsoever may make them happy and useful. And I make the said Thomas Jefferson my executor of this. (Signed,) T. KOSCIUSZKO. 5th May 1793."

The bill further stated, that the said Kosciuszko, about the 18th of June 1806, being then domiciled in Paris, executed a certain will or writing testamentary, as follows:

"Know all men by these presents, that I, Thaddeus Kosciuszko, formerly an officer of the United States of America, in their revolutionary war against Great Britain, and a native of Liloane, in Poland, at present residing at Paris, do hereby will and direct, that, at my decease, the sum of 3704 dollars, current money of the aforesaid United States, shall of right be possessed by, and delivered over to the full enjoyment and use of Kosciuszko Armstrong, the son of General John Armstrong, minister plenipotentiary of the said states at Paris; for the security and performance whereof, I do hereby instruct and authorize my only lawful executor in the United States, Thomas Jefferson, president thereof, to reserve, in trust for that special purpose, of the funds he already holds belonging to me, the aforesaid sum of 3704 dollars in principal, to be paid by him, the said Thomas Jefferson, immediately after my decease, to him, the said Kosciuszko Armstrong, and in

Armstrong v. Lear.

case of his death, to the use and benefit of his surviving brother. Given under my hand and seal, at Paris, this 28th day of June 1806.

(Signed,) THADDEUS KOSCIUSZKO."

"In presence of CHARLES CARTER: JAMES M. MORRIS."

[Seal.]

*171] *That the said testator, on the day of the date of said writing, signed and sealed it, in presence of two competent witnesses, who attested the same, and acknowledged it, on the same day, as his act and deed, before Fulwar Skipwith, commercial agent, and agent for prize causes for the said United States, at Paris, and delivered it to the said John Armstrong. That the complainant is advised, that the said paper is a last will and testament, and must operate as such, and revokes, pro tanto, the bequests and appropriation made in the will first mentioned. That General Kosciuszko died the 15th of October 1817, leaving said testament unrevoked. That said Jefferson refused to take letters testamentary under said will, and that the defendant was duly appointed administrator with the will annexed; that the estate has come to his hands, and that he has been often requested to pay to complainant the $3704 aforesaid, with interest, and refuses to pay, until an order or decree of this court in the premises. The bill prayed for a discovery of the funds in defendant's hands, and whether the said writing made at Paris is authentic, and payment of said legacy, with interest, and for general relief.

The answer of the defendant admitted that he was administrator with the will annexed of General Kosciuszko, and that the instrument mentioned in complainant's bill, and exhibited with it, was executed and acknowledged as it purports to be, and that said Kosciuszko was at the time domiciled and resident at Paris; but submitted, whether he was bound to pay said legacy upon an instrument so executed and acknowledged, inasmuch as Mr. Jefferson received a letter from General Kosciuszko dated as late as the 15th of September 1817, in which he thus affirms his first will. "After my death, you know its invariable destination" (speaking of this fund). The answer admitted, that Mr. Jefferson renounced, and that the defendant was appointed administrator, with the will annexed, as stated in the bill. The defendant admitted funds to have come to his hands to an amount larger than stated in the bill. The answer further stated, that among the papers received by the defendant from Mr. Jefferson, was a letter from Mr. Politica to said Jefferson, inclosing a despatch from the vice-roi of Poland *to him, by which it appears that the whole estate of said Kosciuszko *172] may hereafter be claimed by a Major Estko, as the heir-at-law of said Kosciuszko; that there were also two letters from a Mr. Zeltner to Mr. Jefferson, by which it appears that Kosciuszko had disposed of the greater part of his fortune, in favor of the children and other relations of Zeltner.

The cause was set down for a hearing in the court below, upon the bill and answer, and a pro forma decree, dismissing the bill, was entered by consent, and an appeal taken to this court.

February 6th. E. Livingston and Wheaton, for the appellant, argued : 1. That the testamentary paper of 1806 was a revocation of the will of 1798 pro tanto. 2 Atk. 86; 2 Philimore 35-51; 1 Bro. Civ. & Adm. Law 293, 333; Swinb. pt. 1, p. 74, note 75, and cases cited by Powell, Ed.

Armstrong v. Lear.

2. That the will of 1798 was to be considered as wholly void, as being contrary to the laws and policy of Virginia and Maryland, and the defendant considered as a trustee for the first will. 4 Wheat. 1; 5 Har. & Johns. 392; Bridg. Duke on Ch. Uses 349, 466; Com. Dig. tit. Charitable Use, N. 1.

3. That supposing the case was to be determined by any peculiar law, as affecting the testator, or his property, it must be, either the law of France, where he was domiciled in 1806, when the will was made; or of this country, where he had placed the fund in question, and of which he might be considered a citizen; or the conventional law between France and the United States.

The rule of international law as to personal property appeared to be settled by the general current of authority, that as to successions ab intestato, they are to be governed by the law of the country where the party was domiciled at the time of his death; and in the case of a will, by the law of the place where it was made. Huber. tom. 2, 1. t. 3; 2 Bos. & Pul. 229, note a; 6 Bro. P. C. 566; 5 Ves. jr. 785; 1 Binn. 336, 349, note a; 1 Mason 381, 408; 3 Ves. jr. 201. But in a recent case in the ecclesiastical *court in England, Sir J. NICOLL had considered the authorities as [*173 rather applying between different parts of the same empire, than between different countries entirely foreign to each other. Curling v. Thornton, 2 Addams 21. If the law of France was to be applied, although the will was not executed in strict and literal conformity with the forms provided by the Code Napoleon, it might be sustained as a donation mortis causa; a species of donation which the best commentators were of opinion was not abolished by the code, it having been preserved in Chancellor D'Aguesseau's ordinance of 1731. Merlin, Repertoire, tom. 4, p. 144; Paillet, Droit Français, p. 159. And perhaps, it might also be considered a valid donation mortis causâ, by our law. 1 Swinb. 54; Prec. in Ch. 300; 2 Bro. C. C. 612; 2 Ves. jr. 120; Lowndes on Legacies, 449; 1 P. Wms. 406, 441; 2 Ves. 437. In the case above cited, determined by Sir J. NICOLL, he refers to the Dutchess of Kingston's Case, and confirms it, where a will," though made in France, where she was domiciled, being made by an English subject, in the English language, and according to English forms, and to be executed in England, was valid as to personal property in England, though (neither being holographic nor made before a notary) it would, by the French law, have been of no validity. Nay, not only was it held good, but if the opinion of an eminent lawyer (M. Targat), as stated in the Collectanea Juridica, be correct, it was good, and would operate on the property in France." 2 Addams 21. But it was further insisted, that the execution of the testamentary paper before the consul at Paris, was conclusive of its validity, and dispensed with the necessity of probate in the courts of this country. This was inferred from the conclusive effect attributed to what are termed "authentic acts," by the law of France, taken in connection with the provisions in the convention of 1800 between. France and the United States (art. 7, 10), and the statute of congress of April 1792, ch. 126, § 2, relating to the powers of consuls *in the verification of such acts, among which testamentary papers are [*174 included. Pothier, Oblig. pt. 4, ch. 1; Code Napoleon, art. 1317-19; Paillet, p. 159, note 2.