Fontain v. Ravenel

THIS was an appeal from the circuit court of the United States for the eastern district of Pennsylvania.

It was a bill filed by Fontain, as administrator de bonis non cum testamento annexo of Frederick Kohne, deceased, against Ravenel, one of the executors of Mrs. Kohne, the widow of the deceased Frederick. The object of the bill was to recover from the defendant certain sums of money which came into the hands of the widow, as executrix of her husband, for the purpose of applying them to some charitable bequests made in the will of Frederick Kohne. These are stated, as well as the other circumstances of the case, in the opinion of the court, and need not be repeated.

The circuit court dismissed the bill, and the complainant appealed to this court.

The case was argued, in print, by Mr. Hopper and Mr. Meredith, for the appellant, and by Mr. Gerhard and Mr. Pettigru, (with whom was Mr. Whaley, for the residuary legatee of Mrs. Kohne,) for the appellee.

The following were the points and authorities relied upon by the counsel for the appellant, in their original brief. An elaborate reply was filed by the counsel for the appellee, and then a rejoinder by the appellant's counsel. The reporter feels it difficult, with this quantity of matter, to present a fair view of the arguments without protracting the report to an unreasonable length.

Points and authorities for appellant.

As to domicile. An intention to make a place his home, will determine the domicile. Grier v. O'Daniel, 1 Binn.; see spinion of Judge Rush, in a note, p. 351.

If the surviving executrix has rightfully distributed among the next of kin, nothing more is to be said. If not, the administratrix cum testamento annexo, is entitled. Row v. Dawson, 1 Ves. 331; Ferran's Estate, 1 Ashmead, 319; Marshall v. Hoff, 1 Watts, 440; Act, 1834; Executors and Administrators, Dunlap's Penn. Digest, 524. The property here is held to abide the event of this suit.

The right of the administrator de bonis non is exclusive. Commonwealth v. Strohecker, opinion of Kennedy, J., 9 Watts, 480.