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KOSCIUSZKO ARMSTRONG, APPELLANT v. BENJAMIN L. LEAR

January 1, 1834

KOSCIUSZKO ARMSTRONG, APPELLANT
v.
BENJAMIN L. LEAR, ADMINISTRATOR OF THADDEUS KOSCIUSZKO AND OTHERS.



APPEAL from the circuit court of the United States of the district of Columbia, for the county of Washington.

On the 1st day of April 1829, the appellant Kosciuszko Armstrong filed a bill in the circuit court, setting forth his citizenship of the state of New York, and that Thade Kosciuszko, late an officer in the service of the United States, in the war of their revolution, and of the republic of Poland, on or about the 5th day of May in the year 1798, placed a large sum in the hands of Thomas Jefferson, Esq., late president of the United States, far exceeding the sum of ten thousand dollars, and executed a will and testament, a copy of which is herewith filed, and marked exhibit A, and which this complainant prays may be taken as a part of this his bill. That afterwards, to wit on or about the 28th day of June in the year 1806, the said Thade Kosciuszko, being then domiciled at Paris, in the kingdom of France, executed a certain instrument of writing, being in the nature and of the effect of a last will or writing testamentary, whereby he willed and directed that at his decease, the sum of three thousand seven hundred and four dollars, current money, should be possessed by, and delivered over to the full enjoyment and use of the complainant; and the said testator thereby instructed and authorized his only lawful executor in the United States, the said Thomas Jefferson, to reserve, in trust for that special purpose, of the funds he held belonging to the testator, the aforesaid sum of three thousand seven hundred and four dollars, in principal to the complainant, to be paid by him, the said Thomas Jefferson, immediately after his decease, to the complainant, and, in case of his death, to the use and benefit of his surviving brothers. That the said testator, on the day and year aforesaid, duly signed and sealed the said instrument of writing in the presence of two competent witnesses, who attested the same, and acknowledged the same, on the same day, before Fulwar Skipwith, commercial agent and agent for prize causes for the said United States, at Paris; and then delivered the same, under his hand ans seal, to John Armstrong, father of the complainant. That afterwards, to wit on the 15th day of October in the year 1817, the said Thade Kosciuszko departed this life, leaving the said instrument of writing unrevoked; and the same was, after the death of the said Thade Kosciuszko, admitted to probate, and duly proved in the orphan's court of Washington county; a copy whereof, exhibit B, he prays may be taken as a part of his bill.

That he is advised, and believes that the said instrument of writing is, to all intents and purposes, 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 the said Thomas Jefferson, named as executor in the will first mentioned, refused to take out letters testamentary on the estate of the said Thade Kosciuszko, and renounced all claim and right so to do, according to law; and Benjamin L. Lear, whom the complainant prays may be made defendant to this his bill, was duly appointed administrator, with the will annexed, on the said estate; which has since come into the hands of the said Benjamin L. Lear, far exceeding, as aforesaid, ten thousand dollars. That the said Benjamin L. Lear has been frequently applied to by the complainant for the payment of the aforementioned legacy of three thousand seven hundred and four dollars, together with the interest thereon, which the said Lear refuses to pay, until the order and decree of this court had upon the premises; and the said defendant combining and confederating with one major Estho, a subject of his imperial majesty, the emperor of all the Russias, and Monsieur Zeltner, formerly minister plenipotentiary of the Helvetic Republic at Paris, and now residing at Soleure in Switzerland, whom the complainant prays may be made parties to this his bill of complaint; the said confederates sometimes pretend that the said Thade Kosciuszko never executed the said the last mentioned writing testamentary, and sometimes they pretend that the said major Estho is the heir at law of the said Thade Kosciuszko, and, as such, entitled to all his said estate; and sometimes they pretend that the said Thade Kosciuszko, during his lifetime, made some disposition of his said estate in favour of the children and other relatives of the said Zeltner, whereas the said last mentioned writing testamentary was duly executed as aforesaid; and that the said major Estho is not the heir at law of the said Thade Kosciuszko, or if he is, that he is not entitled to receive distribution of the said personal estate, and that the said Thade Kosciuszko made no testamentary or other disposition in favour of the said Zeltner, or his children or relatives, which could affect the claim of the complainant under the said writing testamentary. All which actings and doings, and pretences of the said confederates, are contrary to equity and good conscience, and tend to the manifest injury and oppression of the complainant.

Complainant's exhibit A.

I, Thaddeus Kosciuszko, being just on my departure from America, do hereby declare and direct that, should I make no other testamentary 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 trades, or otherwise, and in having them instructed for their new condition in the duties of morality, which may make them good neighbours, good fathers or moders, husbands or wives, and in their duties as citizens, teaching them to be defenders of their liberty and country, and of the good order of society, and in whatsoever may take them happy and useful. And I make the said Thomas Jefferson my executor of this.

T. KOSCIUSZKO.

5th day of May 1798.

Complainant's exhibit B.

Know all men by these presents, that I, Thade Kosciuszko, formerly an officer of the United States of America in their revolutionary war against Great Britain, and a native of Lilourui, in Poland, at present residing at Paris, do hereby will and direct, that, at my decease, the sum of three thousand seven hundred and four dollars, currency 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 said 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 three thousand seven hundred and four dollars, in principal; to be paid by him, the said Thomas Jefferson, immediately after my decease, to him, the aforesaid Kosciuszko Armstrong; and in case of his death, to the use and benefit of his surviving brothers.

Given under my hand and seal, at Paris, this 28th day of June 1806.

THADE KOSCIUSZKO. [SEAL.]

In presence of

CHARLES CARTER,

JAMES M. MORRIS.

Commercial Agency of the United States, Paris.

On this 28th day of June, in the year of our Lord 1806, and of the independence of the United States of America the thirtieth, before the undersigned, commercial agent and agent of prize causes for the United States of America, at Paris, personally appeared Thade Kosciuszko, late officer of the said United States, who, in his presence, signed and sealed the foregoing transfer in favour of Kosciuszko Armstrong, the son of general John Armstrong, minister plenipotentiary of the United States at Paris, and in case of his death, to the use and benefit of his surviving brothers; and did acknowledge it as his own act and deed for the purposes therein specified.

In testimony whereof, he, the said undersigned as aforesaid has hereunto signed his name, and affixed his seal of office, at Paris, the day and year above written.

[L. S.] FULWAR SKIPWITH.

Orphan's Court, Washington County, District of Columbia, to wit:

Be it remembered, that on this 26th day of September, in the year 1827, Richard Forrest, of the county and district aforesaid, made oath on the Holy Evangels of Almighty God, that he is well acquainted with the hand writing of Fulwar Skipwith, late United States commercial agent at Paris, having often seen him write; and that he verily believes the signature, 'Fulwar Skipwith,' to the certificate to the annexed instrument of writing purporting to be the will of Thade Kosciuszko, is the proper hand writing of said F. Skipwith; and that he believes the seal attached to said certificate is the official seal of the United States consulate at Paris.

Sworn in open court.

Teste, HENRY C. NEALE, Reg'r Wills.

And now, on this 8th day of May, in the year 1828, in the orphan's court of Washington county, and district aforesaid, Joseph C. Cabell, of Nelson county, in the state of Virginia, makes oath on the Holy Evangels of Almighty God, that he is well acquainted with the hand writing of Charles Carter, one of the subscribing witnesses to the annexed paper, purporting to be the will and testament of Thade Kosciuszko, deceased, having often seen him write; and that he verily believes the signature, 'Charles Carter,' as witness to said will, to be the proper hand writing of said Charles Carter, now deceased; and that he is well acquainted with the hand writing of Fulwar Skipwith, late commercial agent of the United States at Paris, having often seen him write; and that he verily believes the signature, 'F. Skipwith,' to the annexed certificate to the instrument of writing purporting to be the will of Thade Kosciuszko, is the proper hand writing of the aforesaid Fulwar Skipwith, who now resides near Baton Rouge, Mississippi.

Sworn in open court.

Teste, HENRY C. NEALE, Reg'r Wills.

District of Columbia, Washington County, to wit:

The 19th day of November 1828, James M. Morris, one of the subscribing witnesses to the aforegoing instrument of writing, purporting to be the last will and testament of Thaddeus Kosciuszko, deceased, made oath on the Holy Evangels of Almighty God, that he did see the testator, therein named, sign and seal this will; that he published, pronounced and declared the same to be his last will and testament; that, at the time of his so doing, he was, to the best of his apprehension, of sound and disposing mind, memory and understanding; and that he, together with Charles Carter, the other subscribing witness, respectively subscribed their names as witnesses to the will, in the presence, and at the request of the testator, and in the presence of each other.

Sworn in open court.

Teste, HENRY C. NEALE, Reg'r Wills.

District of Columbia, Washington County, to wit:

I certify that the aforegoing last will and testament of Thaddeus Kosciuszko is truly copied from the original filed and recorded in my office.

Witness my hand, and seal of office, this 5th day of March, in the year 1829.

[SEAL.]

HENRY NEALE, Reg'r Wills.

The bill prayed a subpoena against the defendants, and the marshal returned that he had summoned B. L. Lear, and 'non sunt the rest. Mr Lear appeared to the bill.

The circuit court made the following order of publication as to the absent defendants.

Kosciuszko Armstrong v. Benjamin L. Lear, administrator, with the will annexed, of Thade Kosciuszko, major Estho, a subject of his imperial majesty the emperor of all the Russias, and Monsieur Zeltner, formerly minister plenipotentiary of the Helvetic republic at Paris, and now residing at Soleure, in Switzerland.

The bill in this case states, that the said Thade Kosciuszko, about the 5th of May 1798, placed a large fund in the hands of Thomas Jefferson, late president of the United States, exceeding the sum of ten thousand dollars; and executed a will; that, on or about the 28th of June 1806, the said Kosciuszko executed at Paris, an instrument of the nature of, and effect of, a last will or writing testamentary, whereby he willed and directed that, at his decease, the sum of three thousand seven hundred and four dollars should be possessed by, and delivered over to the full enjoyment and use of the complainant, to be paid by the said Thomas Jefferson to the complainant, immediately after the said Kosciuszko's decease, out of the said funds; that the said Kosciuszko, on the said 28th of June 1806, duly signed and sealed the said instrument of writing, in the presence of two competent witnesses, who attested the same, and acknowledged the same, on the same day, before Fulwar Skipwith, commercial agent, and agent for prize causes, for said United States at Paris, and then and there delivered the same under his hand and seal to John Armstrong, father of the complainant. That afterwards, to wit on the 15th day of October 1817, the said Kosciuszko departed this life, leaving the said instrument of writing unrevoked, and the same has since been duly admitted to probate, and proved in the orphan's court of Washington county. That the said Thomas Jefferson, named as executor in the will first mentioned, refused to take out letters testamentary on the estate of the said Kosciuszko; and thereupon the defendant Lear was duly appointed administrator with the will annexed. The bill further charges that the said Lear refuses to pay the said sum of three thousand seven hundred and four dollars, because, among other reasons, a claim to the whole of the funds of said estate has been made by said major Estho, as heir at law of said Kosciuszko, and another claim by the said Monsieur Zeltner under another will, which he alleges the said Kosciuszko to have made in Europe, in favour of himself or some of his relations; and the complainant states the object of his said bill to be, to enforce a discovery, by said Lear, of the funds and effects which have come to his hands as administrator as above named, and the payment by him to the complainant of said sum of three thousand seven hundred and four dollars, with interest, &c. And it appearing to the court that two of the defendants in this case, viz. the said major Estho and Monsieur Zeltner, are not within the jurisdiction of this court, and do not reside within the United States, but, as far as appears to the court, one of the said defendants resides in Poland, and ...


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