Case of Miller's Estate

The opinion of the court was delivered by Gibson, C. J. The execution of the disputed specialty is established by plenary proof. Did it stand on the testimony of but the subscribing witnesses, it would still be sufficiently made out. Both recognise their signatures, and both remember the transaction; but neither remembers the fact of a formal delivery. Nothing is clearer, however, than that a formal delivery is not indispensible. The leaving of a deed on the table for the grantee to take it away, has been held sufficient. Here the instrument is proved by one of the subscribing witnesses, to have been laid on the counter; which, in connexion with the fact that it is produced by the party who claims-under it, is enough in all reason to warrant a presumption of its delivery ; and this on the ground of all presumptions-^ — the usual course of such transactions. In a vast majority of cases, the deed is merely left for the grantee to take it away, and where it is produced by him, the law, in the absence of proof to the contrary, infers a delivery, for the reason, that in the absence of countervailing proof, it presumes against fraud and in favour of innocence. So strong is this presumption, that in the case of a second marriage within a' year after the husband had left.the country, it has been allowed to prevail over the usual presumption of continuance in life. Starkie’s Ev. Pt. IV. 1248. [318] It is therefore natural and reasonable to presume, that the grantee producing, as he does here, an instrument, which is proved to have been signed, sealed, and left on the counter with no view, that appears, to a postponement of the delivery, obtained the possession of it with the assent of the grantor rather than surreptitiously. It is by force of the same presumption, that proof of the hand-writing of subscribing witnesses, who are dead or cannot be had, is prima facie evidence of execution. And such presumption accords not only with the current of such transactions, but with the recollection, as far as it goes, of the subscribing witnesses here, both of whom say, in effect, that unless the deed had been delivered, they would not have subscribed it as witnesses of the fact. Of what effect then is it, that the parties have omitted the usual recital of having affixed the seal? That recital is by no means essential to the validity of a deed, nor does it bear even remotely on the disputed fact of delivery ; and as evidence of intention, it is certainly less operative than the customary memorandum of the execution subscribed by the witnesses, to which any recital or declaration of the parties themselves is inferior, just as proof of their hand-writing is inferior. But in addition to the testimony of the subscribing witnesses, we have that of one of the assignees, having released any beneficial interest which he might be supposed to have in the trust, who proves the admission of the assignor at the time of sealing, that the instrument was then his deed, of which delivery was certainly a constituent part. The objection to the competency of this witness on the alleged ground, that none but a subscribing witness, where there is one, can be heard, is destitute of the shadow of an argument. The testimony of the subscribing witnesses, where it is attainable, must be had in the first instance, as it has been here; but the law is not so unreasonable as to declare, that the grantee must lose his right wherever they have lost their memory. The title to priority in the case before us, then, depends not on the proof of the instrument, but on the solution of a question, whether administration is to be made according to the law of the domicil or of the situs rei at the time of the intestate’s death; and that involves a prelimary inquiry as to the true place of his domicil. The facts are, that being a native of Philadelphia, and having been absent from the United States for seventeen years, he returned on the business of a commercial house at Buenos Ayres and Monte Video, of which he was a partner, but with no purpose of resuming his foreign residence. He resided with his father’s family here for two years, during which his connexion with the house in South America, was dissolved by efflux of time, and a partnership formed between him and other persons, for the establishment of a house at Alvarado in Mexico. In consequence of the apprehended insalubrity of the climate, he manifested in the course of the negociation, that led to this arrangement, an insuperable aversion to being bound for more than two years, and the articles of co-partnership, in which, it is worthy of remark, he was designated as being of Philadelphia, were [319] framed accordingly; and though he did not speak particularly of returning, he expressed a determination not to go abroad again after that time. It satisfactorily appears, therefore, that whatever was the character of his residence in South America, his domicil there, if he had acquired one, was relinquished at his return to Philadelphia; and it will not be disputed, that his domicil of origin, which was at most but suspended, was instantly revived by his resumption of the character of an American citizen — even before the dissolution of his connexion with the foreign house. For an acquired character depending, as it does, not on the existence of commercial relations, but actual residence without a present purpose of terminating or abridging it, is abandoned for every purpose of legal effect, the instant a step is taken to abandon the country. It is clear, then, that when the intestate returned to Philadelphia with a view to a residence of indefinite duration, he regained his original domicil; and it is just as clear he did not part with it again by going to Mexico. That he went there for a special and temporary purpose, and without a view to make it a place of indefinite residence, is an indisputable result of the evidence. We have, then, the case of an administrator, who claims to administer, according to fhe law of the domicil, assets transmitted to him by a surviving partner of the intestate, and among creditors, who were not resident, at the time of the death, in the country where the assets were. . The ground on which the assets are to be collected by the authority, and administered according to the law of the country, in which they happen to be at the decedent’s death, is the claim which its citizens have to the protection and assistance of the government in the prosecution of their rights. This protective principle has never been relaxed by the American courts; and was particularly maintained by this court in Mothland v. Wireman, at the last term at Chambersburg. But when the purposes of protection and assistance have been answered, or there are in fact no resident creditors to be protected, it seems from the case of Dawes v. Head, (3 Pickering, 128.) that the proper course is to transmit the assets to the administrator at the place of the domicil for further administration among the other creditors and those entitled to the succession. Perhaps a more regular course than the one pursued in the case at bar, would have been to obtain administration of the assets in Mexico, for the purpose of transmitting them to the administrator here. If, however, there were in fact no Mexican creditors, as is probable from the very nature of the case, the joint debts being payable before the intestate’s interest could be separated from the partnership, the necessity of an ancillary administration for purposes of mere transmission, would not be so imperative. The question, however, is not whether the administrator shall be compelled to account for these assets, but having submitted them to the local jurisdiction, how he shall administer them. He certainly would not be bound to wait an indefinite time for the Mexican government or a Mexican creditor [320] to interpose ; and it is of decisive importance, that the person, who claims according to the order of payment prescribed by the Mexican law, is not a Mexican creditor, but an inhabitant of Canton, to whom the Mexican government owed neither assistance nor protection. Had he preferred his claim to an administrator in Mexico, he doubtless would have been paid according to the rule of priority there, the order of payment being regulated by the law of the forum. But the authorities might have referred him to the administrator here, who is not bound to give him any advantage, to which he is not entitled in common with the domestic.creditors. Were a Mexican creditor to appear, the case would be different. Perhaps our courts would direct a portion of the assets, sufficient for the demand, to be returned to the proper officer in that country : certainly they would not compel payment to be made in a way to deprive him of any advantage he could claim by its laws, or suffer him to be prejudiced by an irregular abduction of the assets from its jurisdiction. But the appellant is not entitled to the same consideration ; and we are satisfied that the instrument, under which the assignees claim, was properly preferred as a specialty. Decree affirmed.