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GEORGE HARRISON, THOMAS H. WHITE AND OTHERS, APPELLANTS v. HENRY NIXON

January 1, 1835

GEORGE HARRISON, THOMAS H. WHITE AND OTHERS, APPELLANTS
v.
HENRY NIXON, SURVIVING EXECUTOR OF MATTHIAS ASPDEN, DECEASED.



APPEAL from the circuit court of the United States for the eastern district of Pennsylvania. Matthias Aspden, on the 6th day of December 1791, made his will, with the codicils annexed thereto, as follows:'These are to certify, that I do hereby annul and revoke all my former wills, giving and bequeathing my estate, real and personal, to my heir-at-law, first paying all my just debts and funeral expenses, and the following legacies, first, to each of the children of my half brother, Benjamin Hartley deceased, that may be alive at my death, the sum of 100 pounds to each Pennsylvania currency; and to my half sister Bersheba Zane, wife of Elnathan Zane, the sum of 400 pounds Pennsylvania currency, both the above living or did live at or near Haddonfield; and to my half brother Roger Hartley, living at at present in Lancaster county, the sum of 300 pounds of the like currency. Witness my hand, this 6th day of December 1791, Philadelphie. 'MATTHIAS ASPDEN. 'Lest any question should arise about the legitimacy of my birth. It is my will, that my estate real and personal, should go to the party who would be my lawful heir, in case there might arise any doubts on that head. It is firmly believed by, from the best information, that my birth was after marriage. 'Philedelphie, December 6th 1791. 'I do further give 100 pounds Pennsylvania currency, to each of the children of my beceased half sister Ann Henchman, that may be living at my death. 'December 6th 1791. 'Note, my property on England is as follows: 12,500 pounds in the four per cent stock; 3000 pounds in the five per cent stock; 1800 pounds in the three per cent stock.' Indorsement. 'The last of will of Matthias Aspden. I do hereby appoint my friends Mr George Roberts and Mr Abraham Lidden, with the president of the old bank at the time being, to by my executors to this my last will. 'MATTHIAS ASPDEN.' At April sessions 1821, of the circuit court of the eastern district of Pennsylvania, the following bill was filed: 'Samuel Packer, a citizen of the state of New Jersey v. Henry Nixon, esquire, a citizen of the state of Pennsylvania, executor of the last will and testament of Matthias Aspden, esquire, late a citizen of the same state. In equity. 'To the honourable the judges of the circuit court of the United States of the third circuit, in and for the eastern district of Pennsylvania. 'Humbly complaining, showeth unto your honours, your orator, Samuel Packer, a citizen of the state of New Jersey, that on the 6th day of December, in the year of our Lord 1791, one Matthias Aspden, esquire, a citizen of the state of Pennsylvania, made and executed his last will and testament, bearing date the same day and year, wherein and whereby he gave and bequeathed all his estate, real and personal, to his heir at law; and of the said will appointed his friends, George Roberts, Abraham Lidden, and the president of the old bank at the time being, executors, as by the said will, a true copy whereof is to this bill annexed, and which your orator prays may be taken as part thereof, will more fully appear; after which, to wit, on the ___ day of August, in the year of our Lord 1824, the said Matthias Aspden departed this life, not having altered, cancelled or revoked his said will, and the said George Roberts and Abraham Lidden being then deceased, and Henry Nixon, esquire, a citizen of the state of Pennsylvania, being then president of the Bank of North America, which bank the testator meant and intended by the description of the old bank, the said Henry Nixon caused the said will to be duly proved according to the laws of Pennsylvania, and having received letters testamentary thereon, took upon himself the burthen of the execution thereof, and hath possessed himself of all the goods, chattels and other personal estate of the said testator, to a very large amount. And your orator expressly charges, that he is the true and only heir at law of the said Matthias Aspden, and that no other person than himself is entitled to claim or receive the benefit of the said devise and bequest. And he hath repeatedly applied to the said Henry Nixon, to have an account of all and singular the personal estate of the said Matthias Aspden, and where and how the same is situated, and what is the true and exact amount thereof, and to have the amount thereof paid to him, deducting therefrom the just and reasonable charges of the said executor. But now, so it is, may it please your honours, that the said Henry Nixon, combining and confederating with others, to your orator unknown, whose names, when discovered, he prays leave to insert with apt words to charge them as parties, denies that your orator is the heir at law of said Matthias Aspden, or that he is in any way entitled to the benefit of any of the testamentary dispositions of the said Matthias Aspden, and refuses to render him any account of the assets, and to pay him any part thereof. In tender consideration whereof, and forasmuch as your orator cannot have plain, adequate, and complete remedy at law, to the end thereof, that the said Henry Nixon, and his confederates, when discovered, on their oaths or affirmations, full, direct, and true answers may make to all and singular the matters and things herein before set forth, as if they had been particularly interrogated thereon; and that the said Henry Nixon, may render and set forth a just and true account of all and singular the personal estate of the said Matthias Aspden, and where and how the same is situate, and whether there are any and what debts due, or claimed to be due therefrom, and may be decreed to pay to your orator the balance of the said moneys in his hands belonging to the said estate, to which your orator is justly entitled, and your orator may have such further relief in the premises, as is consistent with equity and good conscience, and to this honourable court shall seem meet.' To this bill the executor filed an answer as follows: 'The answer of Henry Nixon, the defendant, to the bill of complaint of Samuel Packer, complainant. 'This defendant says, that he believes, and admits, that Matthias Aspden, the testator in the said bill named, at Philadelphia, duly made and executed his last will and testament in writing, and three codicils thereto; all bearing date the 6th day of December 1791; and that such will and codicils are in the words and figures, or to the purport and effect in the paper annexed to the said bill set forth; but for greater certainty as to the date and contents of said will and codicils, this defendant craves leave to refer thereto. And this defendant says, that the said testator deposited his said will and codicils, for safe custody, in the cashier's vault of the Bank of North America, at Philadelphia, known as the old bank, where the same were found after his decease. And the defendant believes it to be true, that the said testator departed this life, on or about the 9th day of August 1824, in the city of London, without having revoked or altered his said will and codicils. And the defendant further answering, says, that George Roberts and Abraham Lidden, in the said will respectively named, both died in the lifetime of the said testator; that the defendant, at the time of the death of said testator, was the president of the Bank of North America, at Philadelphia, known as the old bank. And the defendant admits it to be true, that soon after the death of the said testator, to wit, on the 19th day of November 1824, this defendant duly proved the said will and codicils, in the office of the register for the probate of wills and granting letters of administration for the city and county of Philadelphia, and received letters testamentary thereon. And that the defendant also duly proved the said will and codicils in the prerogative court of Canterbury, in England, and obtained probate thereto from that court. And this defendant admits it to be true, that as executor as aforesaid, he has possessed himself of all the personal estate and effects of the said testator in the United States, or of so much thereof, as has come to his knowledge; a true account of which is in the schedule hereto annexed. And this defendant has paid the charges of proving the said will, at Philadelphia, and other charges incident thereto, and six of the legacies, the others having not yet been claimed, bequeathed by the said will, a true account of which payments is in the schedule hereto annexed, and that as executor, other charges must be incurred in managing and settling the estate; the amount of which cannot now be ascertained; and that this defendant, as executor, will be entitled to a commission for his services. And this defendant further answering, says, that he believes it to be true, that the said testator was, at the time of his death, (among other descriptions of property) possessed of property in the English funds, that is to say, 4000 pounds bank stock; 10,000 pounds, three per cent consolidated bank annuities; 12,500 pounds reduced three and a half per cent bank annuities; and 3,500 pounds, new four per cent bank annuities; and that the said testator, also, was possessed of East India stock, and also of South Sea stock to a considerable amount, that is to say, 3000 pounds East India stock, and 5000 pounds South Sea stock. And this defendant believes that the said testator died possessed of other personal property to a consideble amount; and particularly of the sum of 790 pounds 3 shillings and 5 pence, in the hands of his bankers, Messrs Hoare, of London; but that no part of the property of the said testator, except that in the United States of America, as before stated, has come to the hands or possession of this defendant. That the whole of the property of the said testator, in England, is claimed by John Aspden, of London, as entitled thereto, under the devise of the said testator, as his heir at law; and that the said John Aspden has filed a bill in the court of chancery, in England, against this defendant, as executor of the said testator–and has, by the injunction of the said court, restrained and prevented this defendant and his agents from obtaining possession of any part of the property in England, of which the said testator died possessed, further than that his attorneys, S. Williams and J. Sterling, received the sum of 300 pounds, being one half year's dividend on 3000 pounds, East India stock belonging to the testator. That the expenses of proving the will of the said testator, in England, amounted to 715 pounds 17 shillings and 10 pence, to pay which in part the said sum of 300 pounds was applied by Messrs Williams and Sterling, and the residue, 415 pounds 17 shillings and 10 pence, was paid out of the sum in the hands of Messrs Hoare, the testator's bankers. The said suit in chancery, by the said John Aspden, is yet pending and undetermined. This defendant has annexed to this, his answer, a copy of the bill filed by said John Aspden. And this defendant, further answering, says, he does not know, and is unable to answer, from his belief or otherwise, whether the said testator left the complainant his heir at law, or whom he left his heir at law. But this defendant, further answering, says, that the said John Aspden, of London, claims to be heir at law; and as such, entitled to the residue of the said testator's property; and that there are many persons residing in the United States of America, who claim to be next of kin to the said testator, and as such, to be entitled to distributive shares of the estate. That this defendant is not able, from his own knowledge, to name all the persons who so claim to be next of kin, but that he has annexed to this his answer, a schedule, which he prays may be taken as part of his answer, containing the names of some of the persons so claiming to be next of kin, and the manner in which they, or some of them, have alleged to this defendant, they are connected with the said testator. This defendant, further answering, says, that three suits have been instituted against him, as executor of the said testator, in the district court of the city and county of Philadelphia, by persons claiming to be next of kin to the said testator, to wit, one to December term 1826, by Stacy Kirkbridge and Sarah, his wife, late Sarah Hammett; another to the same term, by James Packer; and the third to September term 1827, by Job Packer; which suits are still pending and undetermined. And this defendant, further answering, says, that he can neither admit nor deny that the said testator was a citizen of Pennsylvania, as alleged in the said bill. That from information, he believes that the said Matthias Aspden, the testator, was born in or about the year 1756, at Philadelphia, then being the place of residence of his parents; that he continued to reside there, and afterwards was engaged in business at Philadelphia as a merchant, with some success, before he was twenty-one years of age. Upon the breaking out of the war between Great Britain and America, in the year 1776, or some time in that year, being still a minor, he went to England, with what view, this defendant, from his own knowledge, is not able to say; but he believes that he went with an impression that the power of Great Britain must soon prevail in putting down the resistance made in America. That the said testator subsequently came several times to the United States of America, and invested large sums there in the public or government stock, or in other securities; that he made his will and the codicils thereto, at Philadelphia, the place of his birth, and deposited them in the bank there; but whether after so returning to the United States of America, the testator went back to England as his home, or only for the purpose of superintending his property; and whether the testator did, in fact, change his domicil, this defendant (save and except as appears by the facts) doth not know, and is unable to answer. But this defendant believes that the said testator, when in England, considered himself as an alien, and as such, claimed to have returned the tax taken from his dividends while he was absent from England, according to the provisions of the law exempting aliens from the tax if not resident in England. That he died in King street, Holborn, London. And this defendant says, that he submits to the judgment of the court, whether, upon the true construction of the said will of the said testator, the next of kin of the said testator are entitled, under the same, to take the residue of the personal estate and effects of the said testator, or whether the complainant, if he be the heir at law, and if not, whether any other person as heir at law of the said testator, is entitled to take the same under the said will as such heir at law. And this defendant submits to act as this honourable court shall direct, being indemnified and paid his costs, charges and expenses therein. And this defendant denies all combination and confederacy with which he is charged in and by the said bill, without this, that, &c. 'HENRY NIXON.' Petitions were filed in the circuit court by persons who claimed to have distribution among them of the estate of the testator, as the party contemplated by the will; each petition setting forth the relationship between the persons presenting the same, and the testator, and praying to be admitted as parties to the suit, for the purpose of claiming the fund admitted by the executor to be in his hands; and that the court would direct inquiries to be made as to their respective claims. George Harrison and the other appellants were among those who filed petitions. Upon the reading and filing of the petitions of George Harrison, the court made an order, according to the prayer of the same. Job Packer and John Zane were, by order of the court, on their application, made defendants; and Isaac Zane was entered as one of the complainants in the case. The record contained no order or action of the court on the other petitions, except an entry in reference to each petition, 'read and filed,' or 'filed.' The circuit court ordered that it be referred to a master to examine and state the next of kin of the testator, Matthias Aspden; and commissions were ordered to take the depositions of distant witnesses. After the coming in of the master's report, in which was contained a list of the heirs and kindred of the whole and half blood of Matthias Aspden the testator; and in which he reports that John Aspden was 'heir at common law,' the circuit court made the following decree. 'And now, this 26th day of December A. D. 1833, this cause coming on to be heard on the bill, answer, petitions, exhibits, proofs and master's reports, and the several parties having been fully heard by their counsel and the court having taken time to consider of the same till this day, do order, adjudge and decree, that the defendant Henry Nixon, surviving executor of Matthias Aspden deceased, do account for, pay over, transfer and deliver, to John Aspden, of Lancashire, in England, one of the said parties, the heir at law of the said Matthias Aspden, the entire balance of the personal estate of the said Matthias Aspden, which has come to his hands to be administered, after paying the debts and legacies of the said Matthias Aspden, and the costs of this suit (which are hereby ordered to be paid out of the said fund). And the court do further order, adjudge and decree, that the bill and petitions, so far as they relate to the other complainants and petitions, who are claimants before the court, and all other claimants before the court, however appearing, be dismissed without costs. 'As to all parties who are claimants before the court by bill, petition, or otherwise, their complaint, petition, and proceedings are dismissed without costs.'(a)

The opinion of the court was delivered by: (a) In the Appendix, No. 2, will be found the opinion of the circuit court of the eastern district of Pennsylvania in this case, delivered by Mr Justice Baldwin.

From this decree George Harrison and Thomas H. White, Ann Emily Bronson, Elizabeth White Bronson, Hetta Atwater Bronson and William White Bronson, minors by their guardian the said Thomas H. White, Mary Harrison, a minor by her guardian Elizabeth Harrison, Esther M'Pherson, and Elizabeth M'Pherson, children of Elizabeth M'Pherson deceased, John Zane and Isaac Zane, prosecuted an appeal to this court.

Before the argument of the case, Mr James S. Smith stated to the court, that he, with Mr Coxe, appeared before the court either as amici curiae, or as the court would permit them to appear; in behalf of the heirs of John Aspden, late of Old street, London, who claim to be the heirs at law of Matthias Aspden the testator: and who had no notice of the proceedings in the circuit court of Pennsylvania. It is the wish of the counsel for these claimants to be permitted to show irregularities in the proceedings, and to have the case remanded to the circuit court, in order that they may be allowed to come in and substantiate their claims to the whole estate, as the heir at law. John Aspden, whose heirs they represent, prosecuted a claim to the estate of the testator, by a bill in the court of chancery in England, which bill is referred to, and annexed to the answer of the executor, filed in the circuit court, and forms part of the record now before this court.

Mr Sergeant, for the appellees, objected. The heirs of John Aspden made an application to the circuit court for a bill of review, for the purpose of obtaining admission into the case. The court refused to give them the permission asked, and they then obtained a citation from the orphan's court of the county of Philadelphia, directed to Henry Nixon, as executor of Matthias Aspden, returnable on the 16th of January 1835, four days after the meeting of this court; thus seeking to maintain their claims in that court. They have since filed an original bill in the circuit court of Pennsylvania, against the executor.

Mr Coxe, in support of the application. The case now before the court, is that of a bill filed by Samuel Packer, asserting himself to be the heir at law of the testator, ex parte materna, against the executor. These were the original parties to the proceedings; other persons came in by petition, which petitions were filed, but no amendments were made to the bill; and on the filing of some of the petitions no order was made by the circuit court, directing the petitioners to be admitted as parties. The appeal from the circuit court is not made by Samuel Packer, who was the only party who could appeal.

The counsel who present this application, desire that the court will look at the record; and they trust, that the court, seeing its imperfections, will remand the case to the circuit court. The proper parties are not before the court.

At the last sessions of this court, the Chesapeake and Ohio Canal Company were permitted to appear in the case of Mumma v. The Potomac Company, and take upon themselves the whole argument of the case. 8 Peters 281.

Mr Justice STORY stated, that it appeared by the charter of the Chesapeake and Ohio Canal Company, that the Potamac Company had been merged in the former company, and had vested in them all their property, and were subjected to the responsibilities of the Potomac Company.

Mr Chief Justice MARSHALL.

The only parties the court can know, are those in the record. They cannot permit counsel who represent parties who may think themselves interested, not in the record, to come in and interfere. Let the argument proceed, and if the court see that the proper parties are not before the court, they will act as may be required.

Mr Ingersoll, epresenting the executor, handed to the court the proceedings of the circuit court of the district of Pennsylvania, on a bill of review filed by the heirs of John Aspden of Old street, London; against the executor, and the citation issued to the executor at their instance, in the orphan's court of the county of Philadelphia.

At a subsequent day of the term, when the cause came on for argument upon the merits, a question was presented by Mr Webster, who, with Mr Tilghman and Mr Newbold, was the counsel for the appellants; whether the bill taken by itself, or in connexion with the answer, contained sufficient matter upon which the court could proceed, and finally dispose of the cause. It was submitted, that the bill contains no averment of the actual domicil of the testator, at the time he made his will, or at any intermediate period, before, or at his death.(b) The court directed this question to be argued, before the argument should proceed on the merits.

(b) In the Appendix, No. 3, will be found extracts from the opinion of the circuit court of Pennsylvania, in this case, which are inserted as showing the view of the court on the effect of the domicil of Matthias Aspden in the construction of the will.

Mr W. Rawle, Jun., for John Aspden.

The motion to remand this cause is founded on a suggestion that its decision will turn upon the question of the testator's domicil; and that this fact, not being averred in the pleadings, the court cannot decide it. If it can be shown, either that the fact is not material, or that it is sufficiently averred, the motion cannot be sustained.

In the court below, the question of domicil, though it was made a point in the cause, was little relied upon. The argument went mainly on the ground that the law of England and that of Pennsylvania, as to the construction of the will in question, was the same; and if this position be correct, it is manifest that the question of domicil is wholly immaterial. The establishment of this position, however, belongs to the main argument. To discuss the principal question in the cause, upon a preliminary question, whether or not the cause shall come on, would derange the whole order of the argument, and place the appellee under great disadvantages. The proper course seems to be, for the court to hear the cause argued; and if the decree of the circuit court can be affirmed, without touching the question of domicil, it will be unnecessary to consider whether the pleadings raise that question or not. If, on the other hand, it be found to be material, and the record does not present it properly to the court; it will be time enough to remand the cause in order to have the pleadings amended.

But the question of domicil, if it be material, is before the court. The rules of equity pleading, though they call for certainty and precision to a reasonable extent, are not so rigorous in their requirements, as those which govern the proceedings of courts of law. From the nature and objects of its jurisdiction, the rules of a court of chancery must possess a more liberal character. 2 Madd. Ch. 168; Coop. Eq. Pl. b, 340.

Testing the record of this cause by the rules of pleading in equity, fairly construed, the question of domicil is distinctly raised. The proper place for the averment of such a fact is the bill; but if that be defective, the defect may be cured by the subsequent pleadings. If a material fact be not averred in the bill, it is not a good bill. To constitute a good bill, it must set forth such a case as will, upon its face, entitle the complainant to a decree in his favour. He must state his title in such a manner as to give the court to understand the character in which he claims, and the nature and extent of his interest. Mitf. 41, 42, 156; 2 Madd. 168; Coop. 5, 6, 7. If, however, these matters be stated in general terms, it is sufficient. All the subordinate facts in the evidence intended to be given, need not be stated. Every subordinate fact is substantially averred by the averment of a general fact, which embraces them. If the bill, on its face, shows an equity in the complainant; if it exhibit him in a character possessing a right to sue, and having an interest which he has a right to claim; it is a good bill, and the defendant must plead to it, or answer it. If it be defective, a demurrer may at once be opposed to it. Mitf. 13; Coop. 109, 118.

The criterion of the soundness of a bill, is its capacity to bear the test of a demurrer. By this test let the bill in this case be tried. It sets out the will of the testator, &c., and avers that the complainant is his heir at law, within the meaning of the will, and, as such, entitled to the property disposed of by it. It does not set out the details of his title. It does not say whether he is heir by the law of England or by that of Pennsylvania, nor does it state how he is heir, so as to show under which law he claimed; and it would have been highly imprudent if he had done so. If he had stated his title in such a manner as to show that he claimed under the law of England alone, or under that of Pennsylvania alone; he might have been confined to proof of his title as stated: but by asserting his claim as heir at law generally, he may show that he is so by any law which may govern the case.

If the law of England and that of Pennsylvania be the same, it is clear that it is of no consequence where the domicil was. If, on the other hand, he was the heir at law intended by the will, only because the testator's domicil was in England, then the fact of domicil was a subordinate fact–one of the constituent parts of the character of heir, the averment of which is embraced by the averment of the general fact of his being the heir at law described by the testator. When he avers that he is the heir, he avers all the facts which make him so. The whole embraces all the parts.

Applying to this bill the test of a demurrer, does it show title in the complainant? If it had been demurred to, what would have been the result? The will gives the estate of the testator to his heir at law; the plaintiff avers that he is the testator's heir at law; the demurrer admits that he is so: and, as a necessary consequence, the decree must be in his favour; or the defendant must plead or answer.

The fact of domicil, therefore, if it be material, is substantially averred in the bill.

But if the bill be defective, it is cured by the answer; which distinctly presents to the court the question of domicil. An answer not only meets the case set forth by the bill, but may set forth new matter essential to the defendant's case, either to add to or qualify the case exhibited by the bill, or to make out a new and independent case for himself. If the new facts stated in the answer are denied by the plaintiff's replication, they are put in issue; if they are not denied, they are submitted to the court, by whom their legal effect is determined. Mitf. 15, 315, 314; Cowp. 324; 2 Maddock 334. If, then, facts necessary to make out the plaintiff's case are not found in the bill, but the defendant introduces them into the answer, and submits the whole matter to the court, it is regularly before them.

This rule has a peculiar application to a suit against a trustee, such as the defendant in this cause. Mitf. 11. In the present instance the whole matter is presented by the answer. The defendant answers what he considers the interrogatories propounded by the bill. He does not aver that the testator's domicil was either in England or Pennsylvania, but he states distinctly all the facts within his knowledge upon which the question of domicil depends; and being incapable of drawing the conclusion of law from the facts, he submits the decision of the question to the court, to whom it properly belongs. If he had answered otherwise, he must have done so with great latitude of conscience; for how could he undertake to swear to a conclusion of law?

The reason of the law is its life. The reason why averments are required is, that the parties may be apprised of what they are to meet, and to prevent surprise. Coop. 5, 7. If then the plaintiff omits to state his case in such a manner as to apprise his adversary of a material fact in dispute; and the defendant shows, not only by his answer, but by his evidence, that he is fully aware of it; how can it be alleged that he is taken by surprise; and how can the court be at a loss for the means of deciding the question raised by it? After such an answer, no reasonable objection could be made to any evidence on the subject of domicil offered by the plaintiff; for the question having been raised by the answer, if not by the bill, either party was at liberty to give his proofs in relation to it. Neither party could object to the evidence for want of an averment: but the answer to the present motion derives additional force from the circumstance, that not only no objection was made to evidence offered by the plaintiff, but the real defendants in the cause, by whom the present motion is made, themselves gave the only evidence that was given on the subject of the testator's domicil. The parties went to a hearing upon that evidence, and the court passed upon it. Can it then be tolerated, that the party who raised the question, who gave all the evidence he could collect in reference to it, who went to a hearing upon it, and had a decree against him; shall, in an appellate court, move to remand the cause for want of a technical averment in the bill? To permit him to do so, would be to sacrifice reason and justice to the merest and most unsubstantial form. It would be vain to say that courts of equity act on the broad principles of justice, and that rules are devised as instruments for the promotion of its ends. To grant the present motion, the court must go beyond a court of law in its adherence to technicality.

Mr Tilghman, for the appellants. It is the wish of all the parties interested in this case, that all the questions involved in it shall be fully presented, and a full discussion of them take place, before this court shall decide upon the interests affected by these questions. To the executor this is most important, for his protection. But a decree of this court, in the present state of the pleadings, will not be a final termination of the controversy.

The fact of the domicil of Matthias Aspden, does not appear in the pleadings, or on the evidence in the case. It is not averred in the bill; nor is it brought forward in the answer. The bill alleges, that the will was made by a citizen of Pennsylvania: the answer admits this, and that the testator died in London. Neither the assertion of citizenship, or the admission of the place of death, puts forth the fact of domicil.

The fact of the testator's domicil has always been considered as most important in the case; whether in England, or in Pennsylvania, will, as the appellants believe, have a positive and decisive influence on the rights of the claimants. If the domicil is now conceded by the appellees to have been in Pennsylvania, the appellants are ready to proceed in the argument of all the other questions in this cause.

In England, proceedings to establish the claims of certain persons who live there, were instituted for the purpose of obtaining the property of the testator in that kingdom; and the proceedings were dismissed on the ground that the domicil of the testator was in America; and the whole of the questions in the case, and all the claims of those who made claims were properly to be litigated in Pennsylvania.

The executor has not undertaken to represent the interests of any one, but he stands independent. He asks, that the case shall be so disposed of, that he shall be protected from all further claims. If the record shall be certified, after the case shall be decided, without containing an explicit averment of domicil; and that the fact of domicil was not inquired into: it will not appear that the fact of domicil is decided. This would expose the executor to a claim in another state, resting or asserted to rest on the domicil, and claimed to be essential to the full decision of the right of parties under the will.

It is not the purpose of the counsel for the appellants to refer the court to the elementary rules on this point; as it is conceded by the counsel for the appellees, that the allegation of domicil must appear in the pleadings. The only question therefore is, does this appear; or was it so made, as that it was investigated, and decided by the circuit court.

It is known to the court that there is another party claiming the whole of the property of the testator, and who is not in the proceedings before the circuit court. He is a formidable party, on the principles decided in the circuit court. This party was, in the opinion of that court, on a bill for a review which was presented to the court, admitted to be of this character. Cited the opinion of the circuit court in the case referred ferred to.(c) It is thus shown that the record is defective, and that there is such a party. But to the next of kin, the appellants, this party is of no importance. His claim does not affect their claims. They deny his rights as heir at law; although they maintain that his rights, and those of all others shall be presented in the case before its final disposition.

(c) The opinion of the circuit court of Pennsylvania, delivered in this case by Mr Justice Baldwin, will be found in the Appendix, No. 3.

Mr Sergeant, in reply.

Is the question of domicil open on the pleading? Does it appear important?

If the want of an essential averment is not taken notice of by the party claiming it as necessary, when he has a full opportunity to do so; his right and opportunity to do so may be lost. If the point is not sufficiently before the court, the party complaining should have moved to suppress the evidence on it. If he does not do this, and goes into the investigation, can he afterwards avail himself of it; having taken the opportunity of an examination and discussion of ...


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