Harrison v. Nixon/Opinion of the Court

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 the case, and this after a decree. Those who were parties in the circuit court are precluded from taking this exception.

Is there not in the pleadings sufficient to have introduced evidence as to the domicil of the testator? And if there was not; should not those who consider such an averment essential, have moved to suppress all evidence on it?

Is it necessary to allege domicil? The law settles, that every man has a domicil. The answer of the executor shows, that the domicil was brought forward. But in this case, the domicil of the testator was unimportant, as the law of England and Pennsylvania, by which this case must be decided, is alike.

There is enough in the case for the decision of all the claims on the estate of the testator; and the executor will be entirely safe under the decision of this court. He has done all that could or can be required of him.

It is denied that any persons but those in the record have any right to interpose in this court; nor should the proceedings in the circuit court, after the appeal, have been referred to. Certainly no reference should have been made to the opinion of the court, in a case subsequently brought before that court, by a person not a party in the case here. Nor would the opinion of the presiding judge in the circuit court sustain the reference to it, if that opinion were fully examined.

Mr Ingersoll, counsel for the executor, offered to the court the proceedings in the circuit court of Pennsylvania, on a bill of review filed in that court against the executor.

He stated, that if the court shall think proper to take those proceedings into their consideration, the counsel for the executor, and those who represent the parties to the bill of review, are prepared and ready to act as may be considered proper, and may be permitted.

Mr Sergeant desired, that the principal question before the court shall be first decided, and after this shall be disposed of, any other matters which may properly be ocnsidered may be examined.

Mr Justice STORY delivered the opinion of the Court.

This is the case of an appeal from a decree of the circuit court of the district of Pennsylvania, in a suit in equity. The bill was filed by Samuel Packer, and asserts, that one Matthias Aspden, a citizen of Pennsylvania, made his will, dated in Philadelphia, on the 6th of December 1791; and thereby bequeathed all his estate, real and personal, to his heir at law, and afterwards died in August 1824, and his will was proved and letters testamentary were taken out in Pennsylvania by the appellee, under which he has received large sums of money; and the bill then asks for a decree in favour of Packer, who asserts himself to be the true and only heir at law of Matthias Aspden, and that he is solely entitled under the bequest. The answer of the executor states, from information and belief, that the testator was born in Philadelphia, which was the residence of his parents, about 1756; that he continued to reside there, doing business as a merchant, with some success, before he was twenty-one years of age; that before the breaking out of the war between Great Britain and America in 1776, being still a minor, he went to England, with what view, the executor is not, from his own knowledge, able to say-but he believes that he went with an impression, that the power of Great Britain must soon prevail in putting down resistance in America; that the testator subsequently came several times to the United States, and invested large sums in government stocks and other securities; but whether after so returning to the United States, 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, the executor (save and except as appears from the facts) doth not know, and is unable to answer; but he believes that the testator, when in England, considered himself as an alien, &c.; and he died in King street, Holborn, London. The answer also states, that the executor proved the will, and took out letters testamentary in England; and states certain proceedings had upon a bill in chancery in England, against him, by one John Aspden there, claiming to be the heir at law of the testator; and annexes to his answer a copy of the bill. He also alleges, that several other persons have made claims to the same property, as next of kin of the testator, of whose names, &c. he annexes a schedule.

Various proceedings were had in the circuit court of Pennsylvania; and a reference was made to a master to examine and state who were all the heirs, and next of kin, of the testator. The master made a report, which was afterwards confirmed; and thereupon a final decree was made by the court, in favour of John Aspden of Lancashire in England, one of the persons who made claim before the master, as entitled, as heir at law, to the personal estate in the hands of the executor; and the claims of the other persons claiming as heirs at law, were dismissed; and the present appeal has been taken by several of these claimants.

The cause having come before this court for argument upon the merits; a question occurred whether the frame of the bill, taken by itself, or taken in connexion with the answer, contained sufficient matter upon which the court could proceed to dispose of the merits of the cause, and make a final decision. The bill contains no averment of the actual domicil of the testator at the time of the making of his will, or at the time of his death, or at any intermediate period. Nor does the answer contain any averments of domicil, which supply these defects in the bill, even if it could so do; as we are of opinion, in point of law, it could not. Every bill must contain in itself sufficient matters of fact, per se, to maintain the case of the plaintiff; so that the same may be put in issue by the answer, and established by the proofs. The proofs must be according to the allegations of the parties: and if the proofs go to matters not within the allegations, the court cannot judicially act upon them as a ground for its decision: for the pleadings do not put them in contestation. The allegata and the probata must reciprocally meet and conform to each other. The case cited at the bar, of Matthew v. Hanbury, 1 Vern. Rep. 187, does not in any manner contradict this doctrine. The proofs there offered were founded upon allegations in the bill, and went directly to overthrow the consideration of the bonds, set up in the answer, in opposition to the allegations of the bill; the latter having asserted that the bonds were obtained by threats and undue means, and not for any real debt, or other good consideration. Is, then, any averment of the actual domicil of the testator, under the circumstances of the present case, proper and necessary to be made in the bill, in order to enable the court to come to a final decision upon the merits? We think that it is, for the reasons which will be presently stated.

The point was never brought before the circuit court for consideration; and, consequently, was not acted on by that court. It did not attract attention, (at least as far as we know) on either side, in the argument there made; and it was probably passed over, (as we all know matters of a similar nature are every where else) from the mutual understanding that the merits were to be tried, and without any minute inquiry whether the merits were fully spread upon the record. It is undoubtedly an inconvenience, that the mistake has occurred; but we do not see how the court can, on this account, dispense with what, in their judgment, the law will otherwise require.

The present is the case of a will, and so far at least as the matter of the bill is concerned, is exclusively confined to personalty bequeathed by that will. And the court are called upon to give a construction to the terms of the will; and in an especial manner to ascertain, who is meant by the words 'heir at law,' in the leading bequest in the will. The language of wills is not of universal interpretation, having the same precise import in all countries, and under all circumstances. They are supposed to speak the sense of the testator, according to the received laws or usages of the country where he is domiciled, by a sort of tacit reference; unless there is something in the language which repels or controls such a conclusion. In regard to personalty in an especial manner, the law of the place of the testator's domicil governs in the distribution thereof, and will govern in the interpretation of wills thereof; unless it is manifest that the testator had the laws of some other country in his own view.

No one can doubt, if a testator born and domiciled in England during his whole life, should, by his will, give his personal estate to his heir at law; that the descriptio personae would have reference to and be governed by the import of the terms in the sense of the laws of England. The import of them might be very different, if the testator were born and domiciled in France, in Louisiana, in Pennsylvania, or in Massachusetts. In short, a will of personalty speaks according to the laws of the testator's domicil, where there are no other circumstances to control their application; and to raise the question, what the testator means, we must first ascertain what was his domicil, and whether he had reference to the laws of that place, or to the laws of any foreign country. Now, the very gist of the present controversy turns upon the point who were the person, or persons, intended to be designated by the testator, under the appellation of 'heir at law.' If, at the time of making his will, and at his death, he was domiciled in England, and had a reference to its laws, the designation might indicate a very different person, or persons, from what might be the case, (we do not say what is the case) if, at the time of making his will, and of his death, he was domiciled in Pennsylvania. In order to raise the question of the true interpretation and designation, it seems to us indispensable that the country, by whose laws his will is to be interpreted, should be first ascertained; and then the inquiry is naturally presented, what the provisions of those laws are.

If this be the true posture of the present case, then the bill should allege all the material facts upon which the plaintiff's title depends; and the final judgment of the court must be given, so as to put them in contestation in a proper and regular manner. And we do not perceive how the court can dispose of this cause without ascertaining where the testator's domicil was, at the time of his making his will, and at the time of his death; and if so, then there ought to be suitable averments in the bill to put these matters in issue.

In order to avoid any misconception, it is proper to state, that we do not mean, in this stage of the cause, to express any opinion, what would be the effect upon the interpretation of the will, if the domicil of the testator was in one country at the time of his making his will, and in another country at the time of his death. This point may well be left open for future consideration. But being of opinion, that an averment of the testator's domicil is indispensable in the bill, we think the case ought to be remanded to the circuit court, for the purpose of having suitable amendments made in this particular; and that it will be proper to aver the domicil at the time of making the will, and at the time of the death of the testator, and during the intermediate period (if there be any change), so that the elements of a full decision may be finally brought before the court. The petitions of the claimants should contain similar averments.

It appears, from the motions which have been made to this court, as well as from certain proceedings in the court below, which have been laid before us in support thereof; that there are certain claimants of this bequest, asserting themselves to be heirs at law; whose claims have not been adjudicated upon in the court below, on account of their having been presented at too late a period. As the cause is to go back again for further proceedings, and must be again opened there for new allegations and proofs, these claimants will have a full opportunity of presenting and proving their claims in the cause: and we are of opinion, that they ought to be let into the cause for this purpose. In drawing up the decree, remanding the cause, leave will be given to them, accordingly. The decree of the circuit court is, therefore, reversed; and the cause is remanded to the circuit court, for further proceedings, in conformity to this opinion.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of Pennsylvania, and was argued by counsel; on consideration whereof, it is ordered, adjudged and decreed, that the decree of the said circuit court in the premises be, and hereby is reversed and annulled, and that the cause be remanded to the said circuit court for further proceedings; with directions to the said court to allow the bill and the petitions of the claimants to be amended, and the answers and pleadings also to be amended to conform thereto, and proofs to the new matter also to be taken; and with further directions to allow any other person or persons, not now parties to the proceedings, who shall claim title to the funds in controversy as heir or heirs at law or representatives of the testator, to present their claims respectively before the said court, and to make due proofs thereof, and to become parties to the proceedings, for the due establishment and adjudication thereof. But the proofs already taken in the cause are to be deemed admissible evidence in regard to all such persons, not now parties, who shall claim title as aforesaid, and become parties in the cause under this order; and such other proceedings are to be had in the said cause by the said court, as to law, equity and justice shall appertain.