Armstrong against Lear, Administrator (with the will annexed) of Kosciuszko, 12 Wheat. 169

Mr. Justice Story delivered the opinion of the Court. The bill in this case is brought: against the administrator, with the will annexed, of General Kosciuszko, for the purpose of establishing a right of the plaintiff to receive payment out of the assets of the testator, of a certain bequest to him, contained in a supposed testamentary writing, executed by the testator at Paris, in France, in June, 1806.

This supposed testamentary writing is set forth in the bill, and averred to be in the nature and of the effect of a last will or writing testamentary; but it does not appear to have been admitted to probate, either in France, or in the proper Orphan’s Court of this District. The answer admits the existence and authenticity of the instrument, and submits to the Court its import and legal effect, and whether it is to be deemed a last will and testament; and it also admits assets in the hands of the administrator sufficient to discharge the bequest.

The cause was heard in the Court below upon the bill and answer, and from the decree dismissing the bill, the present appeal has been brought to this Court. The cause has been argued here upon several points, involving a good deal of learning, and some doctrines of international law. We do not enter into an examination of thém, because rur judgment proceeds upon a single point, and will, in no event, prejudice the merits of the plaintiff’s claim.

By. the common law, the exclusive right to entertain jurisdiction over will's of personal estate, belongs to the ecclesiastical Courts ; and before any testamentary paper of personalty can be admitted in evidence, it must receive probate in those-Courts. Lord-Kenyon, in The King v.

Inhabitants of Netherseal, (4 Term Rep. 258.) said, “we cannot receive any other evidence of there being a will in this case, than such as would be sufficient, in all other cases, where ti-ties are derived under a will; and nothing bub the probate or letters of administration, with the will annexed, are legaj evi(ience 0f the will, in all questions respecting personalty.11 This principle of the common Jaw is supposed to be in force in Maryland, from which this part of the District Of Columbia derives its jurisprudence; and the probate of wills of personalty to belong exclusively to the proper Orphan Court here, exercising ecclesiastical jurisdiction.

If this be so, and nothing has been shown which leads us to a different conclusion, then it is indispensable to the plaintiff’s title, to procure, in the first instance, a regular probate of this testamentary paper in the Orphan’s Court of this District, and to set forth that fact in his bill.

The treaty stipulations, the act of Congress, and the principles of the law of France, which have been cited at the argument, attributing to them the full force which that argument supposes to establish the validity of the instrument, do not change the forum which is entitled, by the local jurisprudence, to pronounce upon it as a testamentary paper, and to grant a probate.

It is one thing to possess proofs, which may be sufficient to establish that a testamentary instrument had been executed in a foreign country, under circumstances which ought to give it legal effect here; and qurLe a different thing, to ascertain what is the proper tribunal here, by which those proofs may be examined, for the purpose of pronouncing a judicial sentence thereon. For this reason, the decree of the Court below is to be affirmed, hut without prejudice, so that the instrument may be submitted to the decision of the proper Probate Court.