
    In the Matter of the Accounting of Henry Huss.
    
    
      (Court of Appeals,
    
    
      Filed June 2, 1891.)
    
    1. Wills—Legacy to foreign community—Evidence of capacity to TAKE.
    When proof of a law of a foreign state has been given, from a publication made under governmental authority, the rules and principles of evidence entitle it to be considered as the existing law of the land in the absence of some equally good evidence that it has been changed or repealed.
    2. Same.
    Where by the customary or common law of the place of its domicil, confirmed by a public statute, a “ community” of a foreign country is entitled to take, hold and manage property in the right of its citizens as a whole or as an aggregate body incorporate, it is entitled to take its share of the personalty under a bequest in a will.
    Appeal from a judgment of the supreme court, general term, second department, affirming decree of surrogate adjudging that the proofs of appellant’s right to take were insufficient
    
      Richard M. Bruno and E. Countryman, for app’lts; Jacob F. Miller, for resp’t.
    
      
       Reversing 30 N. Y. State Rep., 359.
    
   Gray, J.

The testator gave one-fourth of his residuary estate to the community of Hochhausen, a municipality situated in the Grand Duchy of Baden, a state of the German Empire, and the question raised upon the settlement of the accounts of his executor was whether it has legal capacity to take its distributive share of the personal estate; no claim being made upon the realty. The surrogate decreed adversely to the claim of the legatee; his decree reciting that the proofs were insufficient to allow it to take any of the property, or to be a legatee under the laws of this state. This decree has been affirmed by the general term. The surrogate expressly found that the legatee had been a municipal body for the past 900 years ; but refused to find that by the unwritten, or by the written law of the country, it was authorized to take and hold bequests of personal property, or to hold personal property as a corporation. In so ruling upon the question of the legatee’s legal capacity, I think the surrogate has erred. By a competent witness, in the person of the German Vice Consul, who, before entering upon the foreign service of the German Empire, had filled a judicial position and was acquainted with the laws of the different states comprising that empire, it was proved that the Grand Duchy of Baden had an unwritten and a written law.

By the unwritten law of the county “ communities,” by which term a city or township was characterized, had a right to acquire and to manage property and to.take by bequest' A copy of the laws and statutes of the Grand Duchy, printed by governmental authority in the official printing office, in 1832, was offered in evidence, and from it proof was given that “every community has a right to administer its affairs as a community and to manage property independently for itself;” and that “all movable and immovable property of communities is the property of the citizens ” as “ a corporation” or “as a body ” or “ as a whole” (the German word in the act being the equivalent of these terms). This witness gave the only evidence in the case and nothing was offered in contradiction of it; nor any other proof given upon the question of what was the law of the domicil of this legatee. But because it appears that, since this publication of the Grand Ducal laws and statutes in 1832, a legislature has been in existence, and that the evidence of the witness that these statutes, and the unwritten law concerning which he had testified, remained in force, was predicated upon the fact that by virtue of his official position he would have been made acquainted with any changes by legislative enactment, it was thought that the proofs were insufficient. The surrogate held that it must be shown that the law relied upon to establish the corporate capacity was in force at the time of the testator’s death and that the evidence here was merely hearsay and, therefore, incompetent He also held, upon the authority of Hynes v. McDermott, 82 N. Y., 41, that there was no presumption of the continued existence of the earlier law. That case is not controlling upon the question here. The books offered upon the trial, in that case, as containing the laws of France, were the publication of a private person. They were not proven nor did they purport to have been published by governmental authority, and were there seen for the first time by the witness.

Moreover, one of the volumes was edited at a date subsequent to the transaction to which they were sought to be made applicable. Nor was it considered that the evidence of the witness as to the reception of these private works in the French courts amounted to proof of that fact Upon the question of whether the presumption should prevail that a law once shown to have existed continued the same until the time of the event about which the controversy turned, the court refused to pass definitely, as being unimportant to the decision. Judge Folger intimated, however, pretty strongly, on the authority of Raynham v. Canton, 3 Pick., 293, that if the question of presumption was in the case, the court would have to make it In Raynham v. Canton, in connection with proofs relating to a marriage in Rhode Island in 1817, a volume of the laws of that state, published by its authority in 1798, was offered; but it was rejected upon the mere objection or denial interposed by counsel that the law so evidenced was not the law at the time of the marriage. Judge Parker, delivering the opinion of the supreme court in reversal of the judgment, held that “ the law being proved to have existed in the manner above stated, it must be presumed to exist until proved by as good evidence to have been repealed.”

I think the rule in the Massachusetts case should be adopted by us as correct upon principle. The rule of presumption as applied to the continuance of a law may well rest upon the same basis that is found for similar presumptions in many human affairs. In Greenleaf on Evidence, vol. 1, § 41, the author states the rule that, “when the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation or state of things continues to exist as before until the contrary is shown, or until a different presumption is raised from the nature of the subject in question.” In People v. Manhattan Company, 9 Wend., 351, is an illustration of the rule, where it was held that a corporation having been shown to have been legally created, it is “ in judgment of law supposed to continue to exist until the contrary is shown.’!

If in such instances the presumption should obtain, how much greater the reason for it in the case of a public law in a foreign state or country. In addition to the Massachusetts case of Raynham v. Canton, there is to be found authority for the rule in the opinions of the courts of other states. In People v. Calder, 30 Mich., 85, the question arose as to the law governing marriage in the state of Hew York in 1869. A volume of Hew York statutes printed in 1852 was held to be competent proof of what the law was; the court considering that, as no proof was offered to indicate any change in the law, the jury might fairly presume that it continued as it was. In Harryman v. Roberts, 52 Md., 64, a volume of Ohio Revised Statutes, published in 1860, was admitted as evidence of the existing law of that state, when the question to which it was made applicable arose in 1879. And see State v. Patterson, 2 Ired., N. C., 346. It may be observed that the very notion of a law, as furnishing a rule of government, or of conduct, suggests permanence as a characteristic and does not involve the idea of change.

I am led -to the opinion that when proof of a law of a foreign state has been given from a publication made under governmental authority, the rules and principles of evidence entitle it to be considered as the existing law of the land, in the absence of some equally good evidence that it has been changed or repealed. We have, then, in this legatee a collective body of individuals, which has existed for past hundreds of years as a municipality, under the description of a “community.” It had acquired and by the unwritten or common law it possessed and exercised certain rights of self-government and powers to acquire and to manage property for itself. By enactment of the Grand Ducal government, its franchises and powers were recognized and confirmed to it The public statutes, in providing that all the property of a community is the property of its citizens, as a corporation, or as a body, in fact, thereby invested the existing municipal body aggregate with an essential attribute of a corporation. This legislation would seem to have amounted to an incorporation by sovereign recognition and grant of powers and franchises. But whether chartered or incorporated by statute or not, we are bound to consider the community as an artificial legal person.

In Germany, in the eye of the law, it is a “ judicial person ” according'to the evidence of the witness in this case. As under the Roman law, in the classification of the writer Savigny, it was a “juristical person.” It is conceded by the law such powers and rights as to give it the character of individuality and to enable it to take, hold and administer upon property. The ability to take the testamentary bequest depends upon the law of the legatee’s domicil Our laws do not prohibit the bequest, or the taking, and the sole question to be considered relates to the legatee’s capacity. See Chamberlain v. Chamberlain, 43 N. Y., 424.

When we find that by the customary or common law of the place of its domicile, confirmed by a public statute, this “ community ” was entitled to take, hold and manage property in the right of its citizens, as a whole, or as an aggregate body incorporate, we need proceed no further in search of capacity to take the legacy.

For the reason stated I think that the judgment of the general term and so much of the surrogate’s decree as has been appealed from, should be reversed, and that it should be decreed that this ■ appellant is entitled to take its share of the personalty under the bequest in the will, with costs to the appellant here and in the courts below, to'be paid out of the estate.

All concur.  