We do not, however, permit the historical facts just alluded to, or any other of a like kind, to have any weight in forming our conclusion concerning his domicil at the time of his death. The facts in the record are sufficient for that purpose.

which he wrote to the Emperor Alexander, is no proof that he was not continuously in after the allies had entered Paris, in 1814; France until 1815, when he went to Vienna. from which it may be seen, when his country We know, too, historically, that he left it in was nearest his heart, that his friend was there June of that year for Soleure, when he found too. (Fletcher's Poland; Harp. Fam., lib. 301; out that it had been determined in the Congress Ozinski, 4, p. 175.) To the two daughters of of Vienna to erect the Duchy of Warsaw into that friend, Andrew Lewis Zeltner, with whom a kingdom, without including in it his native he had lived for fifteen years, he gives all of his province of Lithuania. 421*] funds in *France, amounting to ninetyfive thousand francs, excepting a legacy to his executor. To the daughter of Zavier Zeltner, with whom he was staying when the wills of 1816 and 1817 were made, and where he died. he bequeathes fifty thousand francs; and it is to him and to his wife, that he says "I bequeath all my effects, my carriage and horse included." From its place in the will of 1817, and from the connection of the words "all my effects, with my carriage and horse included," it would be a very strained construction, to make the words, all of my effects, comprehend his personal estate in the United States, it being neither alluded to in any way in this will, nor in that of 1816. Except in so far as it might, under the will of 1816, have been applied to the payments of the leagcies given in that will, upon the failure of the funds upon which they were first charged. Effects, in French, or the word effets, has the same meaning in common parlance and in law, that it has in English. Its meaning properly in either, when used in definitely in wills, but in connection with something particular and certain, is limited by its association to other things of a like kind. It is from the subject matter of its use, that intention of something else is to be implied; and that of course may be larger or less. In some instances in wills, the word has carried the whole personal estate. When in connection with words of themselves of larger meaning, or of fixed legal import, as there were in the case of Bosley v. Bosley, decided at this term of the court, such a clause in a will is residuary. (5 Madd. Ch., 72; 6 Madd. Ch., 119: Cowper, 299; 15 Vesey, 507.)

Such being the rule, it is our opinion that the second article in the will of 1817 is not residuary, and that it has no relation to the funds in controversy.

It follows, then, that as the wills of 1798 and of 1806 were revoked by the will of 1816, and as no disposition was made in it, or in the will of 1817, of the funds in controversy, that General Kosciusko died intestate as to them, and that they may be distributed to his relations who may be entitled to inherit from him, according to the law of his domicil at the time of his death.

We now proceed to the question of domicil. In the will of 1806, he describes himself as "an officer of the United States of America, in their Revolutionary War against Britain, and a native of Lithuania, in Poland, at present residing in Paris." In the will of 1816, made at Soleure, his language is: I, the undersigned Thaddeus Kosciusko, residing at Berville, in the township Genevraye, of the department of Seine and Marne (being now), or at present at Soleure, in Switzerland." In the will of 1817, nothing is said of his residence. The record shows that he went from the United States to 422*] *France in 1798; that he was there in 1806, when he said he resided at Paris. There

In the first place, his declarations that his residence was in France, in the way they were made in his wills, with an interval of ten years between them, would, upon the authority of adjudged cases, be sufficient to establish, prima facie, his domicil in France. Such declarations have always been received in evidence, when made previous to the event which gave rise to the suit. They have been received in the courts of France, in the courts of England and in those of our own country. In two questions of domicil in France, such declarations in a power of attorney, and in other instruments, were received as evidence. (Denisart, tit. Domicil, sec. 1.) In the English courts there are many cases in which like declarations have been offered and received. (5 Term R., 512, and the observations of Mr. Evans, axon et un. 2 Poth. Obl., App., No. 16, sec. 11; Rawson v. Haigh, 2 Bing., 99; 9 Moore, 217; S. C., W. & M., 353; Lord Tenterden, 1 Bing. N. C.; 5 C. & P., 575: 1 Taylor, 376.) In the United States, the case of Gorham v. Canton, 5 Greenleaf, 266, is to the same effect; and in Massachusetts, in the cases of Thorndike v. Boston, 1 Metcalf, and Kilburn v. Bennett, 3 Metcalf, 199, it was ruled that in a case where the question of domicil was raised, the declarations and letters of a party whose domicil was disputed, were admissible in evidence, especially if made previous to the event which gave rise to the suit. We find, also, in 8 Pickering, 476, that the will of a grandfather in 1774, in which he was described as being of O., and another will, in which he is described as resident in O., were admissible evidence to prove that the grandfather had obtained a settlement at O.

Kosciusko's domicil of origin was Lithuania, in Poland. The presumption of law is that it was retained, unless the change is proved, and the burden of proving it is upon him who alleges the changes. (Somerville v. Somerville, 5 Vesey, 787; Voet, Pand.. tit. 1, 5, N. 99.)

But what amount of proof is necessary to change a domicil of origin into a prima facie domicil of choice? It is residence elsewhere, *or where a person lives out of the [*423 domicil of origin. That repels the presumption of its continuance, and casts upon him who denies the domicil of choice, the burden of dis proving it. Where a person lives, is taken prima facie to be his domicil, until other facts establish the contrary. (Story's Com., 44, 6 Rule; Bruce v. Bruce, 2 Bos. & P., 228, note 239; 3 Ves., 198, 291; Hagg. Consist.. 374, 437.) It is difficult to lay down any rule under which every instance of residence could be brought, which may make a domicil of

Lord Hardwicke recognized in it the rule that the personal estate, in cases of intestacy, followed the person, and becomes distributable according to the law or custom of the place where the intestate lived. Among other rea sons given by him is, that a contrary rule would be extremely mischievous, and would affect our commerce. No foreigner could deal in our funds but at the peril of his effects going according to our laws, and not those of his own country. He re-affirmed the same in a few years afterwards, in Thorne v. Watkins, 2 Ves., 35. Lord Kenyon did the same when he was Master of the Rolls in 1787, in Killpatrick v. Killpatrick, which will be found cited in Robertson on Personal Succession, 116. In 1790. the House of Lords acted upon the rule, in Bruce v. Bruce, and two years afterwards, in Hogg v. Lashley. Many cases followed in the English courts, and the only question since has been, what was the domicil of the intestate at the time of his death? In the United States the rule has been fully recognized. (14 Martin, N. S., La., 99; 3 Paige, 182; 2 Gill & Johns., 193, 224, 228.)

The rule prevails, also, in the ascertainment of the person who is entitled to take as heir or distributee. It decides whether primogeniture gives a right of preference, or an exclusive right 426*] to take the succession; whether a person is legitimate or not to take the succession; whether the person shall take per stirpes or per capita, and the nature and extent of the right of representation. (Story's Conflict of Laws.)

But it is objected, before the rule can be applied in this suit against the defendants, that the complainants must prove what the law of France is for the distribution of the fund. It is said that has not been done.

For this purpose, the Code Civil of France was offered in evidence, but it was objected to. It is true, that the existence of a foreign law, written or unwritten, cannot be judicially noticed, unless it be proved as a fact, by appropriate evidence.

cussion. I will, therefore, receive any book that purports to be a history of the common law of Spain." (B. N. P., 248, 249; 30 How. St. Tr., 492; 2 Phil. Ev., 123; 1 Salk., 281; Morris v. Harmer, 7 Pet., 554; 3 Cary, 178; 11 Clark & Fin.; Russell's Peerage Cases; 3 Wend., 173.) Lord Tenterden, in Lacon v. Heggins, Stark., 178, admitted a copy of the Code Civil of France, produced by the French Consul, who stated that it was an authentic copy of the law of France, upon which he acted in his office, and that it was printed at the office for printing the laws of France, and would be acted upon in the French courts. In the Russel Peerage case, Lord Campbell said: "The most authentic form of getting at foreign law, is to have the book which lays down the law. Thus, we have had the Code Napoleon in our courts. It is better than to examine a witness, whose memory [*427 may be defective, and who may have a bias influencing his mind upon the law." The Supreme Court of New York has held, that an unofficial copy of the Commercial Code of France, could not be proved by the French Consul residing at New York, though he stated it to be conformable to the official publications; and that it was an exact copy of the laws furnished by the French government to its Consul at New York. Had it been an official copy, and sworn to be such, by the Consul, it would have been received in evidence, as the Irish Statutes were, in Jones v. Maffet, 5 Serg. & Rawle, 523, where they were sworn to by an Irish barrister, and that he received them from the King's printer, in Ireland. In Church v. Hubbart, 2 Cranch, this court said, that the edicts of Portugal, offered in evidence, would have been admissible, if the copies of them had been sworn to be true copies, by the American Consul at Lisbon, instead of his hav ing given his consular certificate, that they were true copies, because it was not one of the functions of a consul to authenticate foreign laws in that way.

The court say: "The paper offered to the court is certified to be a copy compared with the original. It is impossible to suppose that this copy might not have been authenticated by the oath of the Consul, as well as by his certifi cate." It will be seen, that what the court required, was a verification of the original, upon oath, and that then the edicts would have been admissible in evidence. They were munic ipal edicts, too, it should be remembered, and not one of those marine ordinances of a foreign nation, on a subject of common concern to all nations, which may, according to the manner of its promulgation, be read as law, without other proof. (Talbot v. Seeman, 1 Cranch, 1.) The rule of this court has always been, since

The written foreign law may be proved, by a copy of the law properly authenticated. The unwritten must be by the parol testimony of experts. As to the manner of authenticating the law, there is no general rule, 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 a state, or, by a copy, proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer, properly anthorized, by law, to give the copy: which certificate must be duly proved. But such modes of proof as have been menthose cases were decided, “that the laws of a tioned, are not to be considered exclusive of others, especially of codes of laws and accept ed histories of the law of a country. In Picton's case, Lord Ellenborough said: The best writers furnish us with their statements of the law, and that would certainly be good evidence upon the same principle as that which renders histories admissible. There is a case," continued Lord Ellenborough, in which the History of the Turkish Empire, by Cantemir, was received by the House of Lords, after some dis

foreign country, designed only for the direction of its own affairs, are not to be noticed by other countries, unless proved as facts; and, that the sanction of an oath is required for their establishment, unless they can be verified by some other such high authority that the law respected, not less than the oath of an individual."

The question in this case is has the Code Civil, which was offered in evidence, a verifi cation equivalent to the oath of an individual? Opinions and cases may be found in conflict

admissibility of foreign law in evidence, may be gathered from them. In our view it is this, that a foreign written law may be received, when it is found in a statute book, with proof that the book has been officially published by the government which made the law. Such is the foundation of Lord Tenterden's ruling, in Lacen v. Higgens, 3 Starkie, 178. The case in 5 Sergeant & Rawle, 523, has the same basis. Though there are other reasons for the admission of the laws of the States into the courts of the United States as evidence, when they are officially published, yet they are only received when the genuineness of the publication is apparent. This court has so ruled in Hind v. Vattier, 5 Pet., 398, and in Owings v. Hull, 9 Pet., 607-625. It is true that we are called upon, as judges, to administer the laws of the States in the courts of the United States, and that the States of the Union are not politically foreign to each other, but there is no connection between them in legislation, and we only take notice of their laws judicially, when they are found in the official statute books of the state.

with the cases cited, but, from a perusal of many of them, we find that they have been formed and decided without a careful discrimination between what should be the proof of foreign written and unwritten law; and when written laws, either singly or in statute books, 428*] or in *codes, have been offered in evidence, without a sufficient authentication that they were official publications, by the govern ment which had legislated them; or when written laws have been offered, properly proved to be official, but which were equivocal in their terms, and in the judicial administration of which there have been, or may be, various interpretations, making it necessary to call in experts, as in cases of an unwritten law, to state how the law offered in evidence is administered in the courts of the country of which it is said to be the law. In England, until recently, it was not doubted that a foreign written law was admissible in evidence, when properly authen ticated. But, in the Sussex Peerage case, 1844, in 11 Clark & Finnelly, 115, several of the judges gave their opinions upon the subject. Lord Brougham, in that case, differed from Lord Campbell, and said that the Code Napo- With these views, it remains for us to show leon ought not to be received in an English that the Code Civil, offered in evidence in this court, and that before it could be received from case by the complainants, to prove their right the book, that an expert, acquainted with the to the succession of the intestate estate of Gentext and the interpretation of it, must be called. eral Kosciusko, is authenticated in such a way And so it was ruled, afterwards, by Erle, Jus- that it may be received by the court for the tice, in 1846, in Cocks v. Purdy, 2 C. & K., purpose for which it was offered. It was sent 269, in which fragments of a code were offered to the Supreme Court, in the course of our naas evidence. But his Lordship's opinion, and tional exchanges of laws with France. It is the case of Clark v. Purdy, must be taken, one of the volumes of the Bulletin des Lois à subject to the facts upon which the point arose. Paris L'imprimerie royale with this indorseIn the first, it was, whether Doctor Wiseman, ment," Les Garde des Sceaux de France à la who had been called as a witness, could refer, Court Supreme Des Etats Unis. Congress whilst giving his evidence of the law of Rome has acknowledged it by the act, and the approon the subject of marriage, to a book, whilst it priation which was given to the Supreme Court was lying by him. In the other case, fragments to reciprocate the donation. We transmitted to of laws were offered. This point had been the Minister of Justice official copies of all the settled by Lord Stowell, in Dalrymple v. Dal laws, resolutions and treaties of the United rymple, 2 Hagg., 54. Lord Brougham again States, and a complete series of the decisions expressed the same opinion, in his sketch of of this court. We do not doubt, whenever the Lord Stowell, in the second series of the States-question shall occur in the courts of France, men of the Time of George III., 76. But Lord that the volumes which were sent by us will be Langdale, who also sat with the other judges, considered sufficiently authenticated to be used in the Sussex Peerage case, gave the rule, with as evidence. The gift and the reciprocation of its qualifications, in the case of The Earl of it, are the fruits of the liberal age in which we Nelson v. Lord Bridport, 8 Beav., 527. After live. We hope for a continuance of such stating the rule, coincidently with the opinion exchanges between France and the Unite d of Lord Brougham, he says: 'Such I conceive States, and for a like intercourse with all nato be the general rule, but the case to which it tions. Business men, jurists and statesmen, is applicable admits of great variety. Though will readily appreciate its advantages. It will a knowledge of foreign laws is not to be im- save much time and expense when questions puted to the judge, you may impute to him occur in the courts of different nations, involvsuch a knowledge of the general art of reasoning the rights of *foreigners if the writ- [*430 ing, as will enable him, with the assistance of the bar, to discover where fallacies are probably concealed, and in what cases he ought to require testimony more or less strict. If the utmost strictness was required, in every case, justice might often stand still; and I am not disposed to say that there may not be cases, in which the judge may not, without impropriety, take upon himself to construe the words of a foreign law, and determine their application to the case in question; especially, if there should 429*] *be a variance or want of clearness in the testimony."

66

Notwithstanding the differences in the cases cited, we think that the true rule in respect to the

ten laws of every nation were verified in all of them, by certified official publications to the governments of each. In the now rapid transit of persons and property, out of the sovereignties to which they belong, into the different parts of the world, such a verification would often speed and save the rights of emigrants, sojourners and merchants.

We think that the Code Civil, certified to the court as it is, is sufficiently authenticated to make it evidence in this suit, and that it would be so in any other case in which it may be offered.

We proceed to state the law from it, applicable to the case.