In re Estates of Foreign Intestates.

Descent and Distribution—Foreign Intestatesand Rights of Distributees.

-Suggestions as to Domicile

In the distribution of assets of foreign intestates, the Orphans' Court of Allegheny County will require that the domicile of decedent be conclusively established before a decree will be made. If the distributees are domiciled abroad, their rights to share in the estate must be clear as well as how said shares are to be disbursed either by consular agencies or otherwise.

No.

December Term, 1919. O. C. Allegheny County.

SUGGESTIONS.

MILLER, P. J., for the Court in Banc, December 31, 1919.-There are before the court about one hundred estates of intestate decedents of foreign nationality; distribution of the residues after the payment of debts has not been decreed, owing, inter alia, to insufficient information from which to find the fact of the domicile of the decedent; to insufficient information as to any legal proceeding showing the parties entitled to take directly or as personal representatives and of the law relating thereto, with authenticated proofs thereof; in some cases powers of attorney from alleged foreign next of kin to receive distributive shares are presented in the absence of proof either of the law or an adjudication or of the right of the maker of the power of attorney; in some of the cases consular representatives decline, with instructions from their governments, to avail themselves of the rights conferred by treaty and under international law generally; in some of the cases new and smaller foreign nations have no consular representatives; and with Russia we have no diplomatic relations at all.

Counsel in all these estates were notified that the court in banc would hear arguments and receive briefs touching the questions which the records. in these various estates disclose. We have had the benefit of able arguments and briefs in compliance with our notices.

After full consideration thereof, we have concluded to file no opinion covering the different questions involved, since a general opinion covering all the questions would be obiter dicta as to any of the estates in which a single or different question arose; neither is it deemed advisable or necessary to file opinions in each of the cases, especially as it now appears that most of them must be ordered back for reaudit to obtain primarily further and better evidence as to the domicile of the decedent.

Instead, we now indicate, as suggestions, certain general principles, the same to be lodged with the clerk for the benefit of and aid to accountants and counsel.

These are as follows:

First, that the domicile of the decedent must be ascertained and found as a fact before the question of distribution can be considered; to find this fact, residence and intent must concur and must be made to appear in each

case.

Second, that the grant of letters by the register is not conclusive evidence of domicile.

Third, that domicile having been established, distribution will be made in accordance with the laws thereof; if domiciled in Pennsylvania, then according to the laws of this state; if domiciled abroad:

(a) To the parties entitled, either as personal representatives or directly upon adjudications in the foreign domicile so showing, the same to be fully authenticated, including proof of the law governing the same.

(b) That when distribution cannot be made to the parties entitled thereto under the law of the foreign domicile as set forth in paragraph (a) above, then distribution may be made to the duly accredited consular agent

In re Estates of Foreign Intestates.

of the foreign domicile, upon proof of credentials filed; the balance so awarded to him on his acceptance as consular representative to be held and transmitted, under general treaties, conventions, consular rights or international law, as duly recognized and as existing between the United States and the country of the decedent's domicile.

Fourth, that powers of attorney by claimants, whether as personal representatives or as direct heirs, in the decedent's foreign domicile, cannot be recognized unless they are accompanied by proof of a foreign adjudication in the domicile of the decedent of the laws governing the same and of his right thereto.

Fifth, that no suggestion here covers the question argued to a great extent of the right of consuls or consular agents to be granted letters of administration, since no such question actually arises in any of the class of estates submitted.

Sixth, that in the absence of proof of foreign domicile or of the rights of parties to take, or failure to ascertain who they are, with failure to present the adjudication and proofs of the laws herein set forth, and on the failure or refusal of consular representatives to accept residues of balances for transmission, where no other disposition is made, distribution must be suspended pending further proceedings.

MEMORANDUM OF AUTHORITIES.

First, Domicile, Distribution under the laws thereof:

Sec. 2, Act Feb. 28, 1791, Purdon 299;

Sec. 25, Act of June 7, 1917, P. L. 429;

Kent's Commentaries, vol. 2, p. 429;

Abington v North Bridgewater, 93 Pick. (Mass.) 170;

Keith v Stetter, 25 Kans. 103;

Desebats v Berquier, 1 Binney 336;

Frye's Election, 71 Pa. 302;

Barclay's Est., 259 Pa. 401;

Windsor's Est., 264 Pa. 557.

Second, Proof of right and essentials for transmission to foreign heirs, representatives, guardians, etc.:

Sec. 58, sub-divisions (f), (g) and (h) Act June 7, 1917, P. L. 447. Third, Rights and duties of consuls:

Caputo's Est., 57 P. L. J. 484;

Jursek's Est., 3 Westmoreland L. J. 14;

Szoraczina's Est., 62 P. L. J., 561;

Rocca v Thompson, 223 U. S. 317;

Harvey v Richards, 1 Mason 381;

Laughlin v Solomon, 180 Pa. 177;

Moore's Digest International Law, vol. 2.

Bunch's Petition.

Habeas Corpus Two-Term Rule-Illegitimate Child-Support-Proof of Trial.

The right of a prisoner to be discharged under the "two term rule" is essentially a habeas corpus proceeding under Section 54 of the Act of March 31, 1860, P. L. 427, which is a re-enactment of the Act of February 18, 1785, 2 Sm. L., 275, Section 3.

The Act of April 13, 1867, P. L. 78, was intended to apply to cases where a husband or father neglects to maintain his lawful wife or his legitimate children, or both, but does not include the father of illegitimate children.

The paternity of a bastard child need not be established by a trial and conviction of fornication and bastardy before a trial and conviction can be sustained for neglect or refusal of a parent to contribute reasonably to the support and maintenance of a child born out of lawful wedlock, under the Act of July 11, 1917, P. L. 773. The paternal parent of the child may be determined in the proceedings under that Act.

In any case where it is sought to compel a reputed father to contribute to the support and maintenance of a bastard child, his paternity of the child must first be established, either by the verdict of a jury or by such voluntary action or assent on his part as is recognized by the law as establishing paternity.

Habeas Corpus. No. 725 Habeas Corpus Docket. C. P. Fayette County. George Patterson, for petitioner.

S. J. Morrow, District Attorney, for Commonwealth.

VAN SWEARINGEN, P. J., December 24, 1919.-A writ of habeas corpus was taken by the defendant, E. C. Bunch, to secure his release from imprisonment in the county jail, in pursuance of the "two term rule," under section 54 of the act of March 31, 1860, P. L. 427, which, after referring to persons committed for indictable offences, provides, inter alia: "If such prisoner shall not be indicted and tried the second term, session, or court, after his or her commitment, unless the delay happen on the application or with the assent of the defendant, or upon trial he shall be acquitted, he shall be discharged from imprisonment."

On June 11, 1919, an information against the defendant was made by Mary Ondish, charging the defendant with adultery and bastardy, the information alleging that on November 28, 1917, the defendant, who then was a married man, with a lawful wife living, had sexual intercourse with the prosecutrix, who was not his lawful wife, the result of which intercourse being that on August 28, 1918, a male bastard child was born of the body of the prosecutrix. The defendant was arrested and given a hearing and was held for court, and, being unable to give bail, was committed to the county jail on June 19, 1919. The next term of the court of quarter sessions opened on the first Monday of September, 1919. On that day the grand jury met, continued in session all week, finished the work laid before it, and was discharged, without an indictment against the defendant having been presented for its consideration. The second term of the court of quarter sessions after the commitment of the defendant opened on the first Monday of December, 1919, and another grand jury met, remained in session for a week, finished its work, and was discharged, without an indictment against the defendant having been presented.

No indictment against the defendant having been returned by the grand jury, of course the defedant was not tried during either of the two terms of the court of quarter sessions following his commitment, and he still remains imprisoned in the county jail. At the hearing on this writ it was made to appear by the district attorney that the reason no indictment against the defendant was laid before either of the grand juries mentioned was be

Bunch's Petition.

cause the prosecutrix could not then be found and there were no other witnesses by whom the commonwealth could make out a case. It was under just such circumstances as these, after one term of the court of quarter sessions had gone by, that the Superior Court was led to say, in Conniff v Luzerne County, 30 Pa. Superior Ct., 383: "In case the prosecutor and his witnesses do not appear, the most the district attorney could do would be to proceed against them, and continue the case until the next term, when, unless the delay in hearing happen upon the application or with the consent of the defendant, he would be entitled to his discharge from imprisonment, under section 54 of the act of March 31, 1860, P. L. 427."

At the hearing on this writ, an allegation was made that, through collusion between the prosecutrix and the defendant, the prosecutrix had been spirited away by the defendant, beyond the jurisdiction of the court, to some place unknown to the commonwealth, for the purpose of preventing her appearance before the grand jury or in court until the defendant could be released from imprisonment in such a proceeding as that now before us, and until after the statute of limitations had run against the offences with which the defendant is charged. But there was not sufficient evidence in support of that allegation to warrant us in determining that the delay in the indictment and trial of the defendant was with his assent.

Under the facts as above stated we are of opinion that the defendant is entitled to his discharge from imprisonment on this writ. "The right of a prisoner to be discharged under the 'two term rule' is essentially a habeas corpus proceeding under section 54 of the act of March 31, 1860, P. L. 427, which is a re-enactment of the act of February 18, 1785, 2 Sm. L., 275, sec. 3." Commonwealth v Fisher, 226 Pa., 189.

But there is another matter which counsel have agreed shall be determined on this writ. Later in the day on which this writ was issued an information against the defendant was made by Mrs. Alice Underwood, alleging that the defendant "has failed, neglected and refused to contribute anything toward the support of his minor child, Edward Bunch, now and since August 14, 1919, in the custody of said affiant, said child being of the age of fifteen months." A warrant was issued immediately and served on the defendant in jail, and he was taken before the alderman before whom the information was made, and, in default of bail, was committed to jail. The child mentioned in the non-support information is the same child of which the defendant is alleged to be the father in the adultery and bastardy case. Mrs. Underwood testified at the habeas corpus hearing that the child came into her custody under an agreement between her and the child's mother by which Mrs. Underwood was to take and care for the child and its mother was to pay her for its maintenance and support, which payment, Mrs. Underwood alleges, never has been made. It was soon after leaving the child in the custody of Mrs. Underwood that the child's mother is alleged to have disappeared from the jurisdiction of the court. If the nonsupport proceeding be valid the habeas corpus proceeding fails, because, while the defendant is entitled to be discharged from imprisonment under the "two term rule" in the adultery and bastardy case, he still must be held in jail in the non-support case.

The proceeding for non-support is under the act of April 13, 1867, P. L. 78, which provides: "That in addition to the remedies now provided by law, if any husband, or father, being within the limits of this commonwealth, has, or hereafter shall, separate himself from his wife, or from his children, or from wife and children, without reasonable cause, or shall neglect to maintain his wife, or children, it shall be lawful for any alderman, justice of the peace, or magistrate, of this Commonwealth, upon information made before him under oath, or affirmation, by his wife, or children, or either of