
    The City Council of Charleston, et. al. ads. Henry Hagermeyer, and Clara his Wife, and Rev. John Bachman, Administrator Retmeyer and Frautz, deceased.
    Heard before Chancellor Desaussure, Charleston, January Term, 1836.
    In 1822, Joseph Clarke, of Charleston, died intestate, having been drowned during the gale, which occurred in September of that year. Letters of administration on his estate, were granted to Dr. John W. Schmidt. No claim having been interposed on the part of the next of kin, it was supposed, that the estate, which was entirely personal, had escheated. An inquisition of escheat was prosecuted at the instance of the City Council of Charleston, as trustees for the Orphan House : and, after a long litigation, the amount jo. the hands of the administrator was paid over to the City Couth' .cil, who caused the same to be invested in bank stock. In March, 1834, this bill Was filed, stating that the complainant, Clara Hager-meyer, was the sister of the half blood of the intestate, Joseph Clarke, and that M. A. Retmeyer, deceased, and M. T. Frautz, deceased, (of whom the Rev. John Bachman is administrator,) were sisters of the whole blood of Joseph Clarke, deceased, having survived their brother, and died in 1826. The bill prayed, .that on due proof of their relationship, the estate of the intestate, might be paid over to therm The answer detijed any knowledge of the con-nexion between the complainants an.d the intestate, and required that strict proof should be made.
    The testimony adduced, is very voluminous, consisting of depositions taken before the officer of this couri, and the examination of several witnesses, contained in three commissions sent to Germany. It is sufficient here to state, that from the highly respectable and unquestionable testimony of Col, Sass, corroborated in many particulars, by that of John George, and C. Schneider, the court is satisfied, notwithstanding some discrepancies, and doubtful circumstances, of the identity of the intestate, with the boy, Joseph Clau-sen, who was a native of Paderborn, in the Prussian dominions, who fled from his school and his parents, at an early age, in conse. quence of some youthful irregularity, and who was, according to the uni.rnpe9.ched baptismal registry, the brother of the complainants.
    In respect to the relative rights of the claimants, the testimony is very clear, and the law, as applicable to them, not less so. At the time of the death of the intestate, in September, 1822, his next of kin, were, 1st, — Maria Agnes Retmeyer, a sister of the whole blood, who died at Paderborn, a widow, on 28th August, 1826', intestate. She left three children. The Rev. John Bachman is the administrator of her estate. 2d. Margaret Theresa Frautz, also a sister of the whole blood, who died at Halberstadt, on the 17th December, ¡826, intestate. She was also a widow, and left children. On her estate, the Rev. John Bachman is administrator. 3d. Maria Theresa Brandis, and John Christopher Brandis, children of Elizabeth Brandis, who was a sister of the whole blood, aud who died at Hildeshein, on 10th February, 1819, nearly four years prior to the death of this intestate. Clara Hagermeyer, one of the complainants, and Mrs. Liesenburg, otie of the defendants, are sisters of the half blood of the intestate. If no brother or sister of the whole blood, had survived the intestate, these sisters of the half blood would have been placed on a footing with the children of Mrs. Brandis, who was a sister of the whole blood : but by the act of distribution, they are not permitted to take, while there are sisters of the whole blood; and as the rights of the parties were fixed at the death of the intestate, the estate is distributable into three parts : one to the administrator of Mrs. Retmeyer, one to the ad. ministrator of Mrs. Frautz, and one is again divisible between the two children of Mrs. Brandis.
    It is admitted by those, who represent the parties in interest, that the complainant, Mrs. Hagermeyer, is in very straitened circtun-Stances ; that she left her native place, Paderbcrn, with the single purpose of prosecuting this claim, and that she made her way te this country, after many sufferings and privations, where she has since remained, affording every aid and information in her power.. It is, perhaps, not too much to- say,- that without her enterprising, spirit, and determined resolution, claims, which were for twelve years unknown, might never have been substantiated. Yet the court is compelled to decide, that, from the evidence adduced by herself, she is entitled to no portion of the inheritance. She is, however, well entitled to reimbursement of her expenses, and remuneration for her meritorious services, which have chiefly contributed to the establishment of the rights of the parties benefited by this decree.
    It appears froiri the statement of the Rev. Mr. Bachman, that the sum of two hundred and twent-four dollars, has been paid to oí' for Mrs. Hagermeyer, since her arrival in this country, and that to her exertions, the heirs are indebted for the establishment of their-claims, I shall decree that this sum be refunded, and that she be allowed for her services, ten per cent, on the amount payable by the City Council, to the several distributees, after the charges and expenses are deducted.
    It is ordered arid decreed, that after payment of the costs and expenses of the suit, and the fees of counsel, as also, the above sum of two hundred and twenty-four dollars,-to Mrs. Hagermeyer, or her solicitor, and the sum of one hundred and twenty dollars, being the pioportion of the children of Mrs. Brandis, of the expense of obtaining the testimony from Germany, the City Couucil of Charleston, pay over to the Rev. John Bachman, as trustee for Mrs. Clara Hagermeyer, ten per cent, on what shall remain of the' estate which was of Joseph Clarke, deceased, including the dividends on the stock, which have been received by the City Council* and estimating the stocks at the present market price.
    It is further ordered, that two thirds of the remainder of the estate, including the dividends aforesaid, be paid over to the administrator of Mrs. Retraeyer, and Mrs. Frautz, or to his solicitor in their behalf, to be administered in due course of law. Finally,, it is ordered, that Maria Theresa Brandis, and John Christopher Brandis, children of Elizabeth Brandis, deceased, be at liberty to come in and make themselves parties to this decree ; and that the-remaining third part of the estate be paid over to the commissioner, by a transfer of stock, to be by him held- in trust,-for the distribu-tees of Joseph Clarke, deceased, and- subject to the further order ot the court; and that a communication be made by the Rev. Mr. Bachman, to the said parties, informing them of this decree.
    HENRY W, DESAUSSURE.
    
      Grounds of Appeal.
    
    1. That under the testimony, the question was involved in- too much uncertainty and doubt, to justify the conclusion formed in the decree, that the Clausen born in Paderborn in Í7-73, unde? whom the complainants derive their title, was the Joseph Clarke who died in Charleston in 1822. .
    2. That, on the examination of defendant’s' witness, the statements rendered by said Clarke, and his age, contradictory to the assumption of his identity with the said Clausen, the case presenté matter of fact proper for the consideration of a jury, and taking into view the circumstances under which the City Council hold the property, the application made ;it the argument for an issue at law,should have been granted by the chancellor ; which application id now renewed.
    ECKHARI), Defendants' Solicitor.
    
    Retigru and Eckhard, for motion.
    Dunkin, contra.
    Filed 13th March, 1837.
   We concur in the conclusion of the chancellor as to the evidence' of Clarke’s identity.

The object of an issue at law, is to satisfy the conscience of the' chancellor, and motions for them are necessarily addressed to hid discretion. This is a matter in which the court rarely interferes^ and never except in cases of great doubt.

Appeal dismissed.

DAVID JOHNSON,

J. JOHNSTON,

WILLIAM HARPER.  