Wills of Tadeusz Kościuszko
Tadeusz Kościuszko (1746-1817), a prominent figure in the history of the Polish-Lithuanian Commonwealth and the American Revolution, made several wills, notably one in 1798 stipulating that the proceeds of his American estate be spent on freeing and educating African-American slaves, including those of his friend Thomas Jefferson, whom he named as the will's executor. Jefferson refused the executorship and the will was beset by legal complications, including the discovery of later wills. Jefferson's refusal incited discussion in the 19th, 20th, and 21st centuries. Kościuszko returned to Europe in 1798 and lived there until his 1817 death in Switzerland. In the 1850s, what was left of the money in Kościuszko's U.S. trust was turned over by the U.S. Supreme Court to his heirs in Europe.
In 1798 Kościuszko decided to leave the United States and return to the Russian-controlled sector of Poland. His friend Thomas Jefferson provided him with a passport in a false name and arranged for his secret departure to France. Before leaving that same year (1798) he wrote out a will, which he entrusted to Jefferson as executor. In the document, Kościuszko, over six decades before the American Civil War, pleaded for the emancipation of America's Negro slaves.
Kościuszko left his American estate to buy the freedom of black slaves, including Jefferson's own, and to educate them for independent life and work. In September 1817, shortly before his death in October, he wrote a letter to Jefferson mentioning the bequest - "...of which money, after my death, you know the fixed destination." Several years after Kościuszko's death, Jefferson, aged 77, pleaded his inability to execute the will due to age and the numerous legal complexities of the bequest. Jefferson recommended his friend John Hartwell Cocke, who also opposed slavery, to be executor, but Cocke also declined to execute the bequest. He wrote to Jefferson that there were "prejudices to be encountered" in their education and of "an effect which might be produced on the minds of my own people."
Kościuszko had made a total of four wills, three of which postdated the American one. Within months after his death in October 1817, two other claims were made on his American estate; one by Kosciusko Armstrong and one by the Zeltner family, who had housed him immediately before his death. Both parties produced wills written by Kościuszko. A representative of the Russian government also made inquiries. The case of Kościuszko's American estate went three times to the U.S. Supreme Court.[note 1] In 1852 the Supreme Court awarded the estate to Kościuszko's heirs in Poland. Before the final Supreme Court decision, Gaspard Tochman, acting on behalf of Kosciusko's relatives, had found an 1816 will drawn up in Paris. This will, which revoked the one made in concert with Jefferson and the one concerning Kosciusko Armstrong, was authenticated. In light of the discovery, the Court ruled that the earlier wills treating his American assets were invalid and that these assets should be turned over to his closest living relatives.
During the legal proceedings between his death and the Supreme Court's decision, the value of his estate decreased substantially; this was attributed by a case attorney to Colonel George Bomford's use of the estate for his own purposes. In its 1852 ruling, the Supreme Court stated that the June 1847 value of his US estate was $43,504.40 and that only $5,680 could be found.
The abolitionist William Lloyd Garrison later criticized Jefferson's inaction, as have Jefferson historians since the late 20th century, including Merrill Peterson, Gary Nash and Edmund S. Morgan. In his biography of Jefferson, Peterson wrote,
The object of [Kosciuszko’s] will was lost. Had Jefferson felt stronger about the object, he would have ventured the experiment, despite statutory obstacles and the shortness of years, for the experiment [of freeing his slaves] was one he often commended to others and, indeed, one he may have himself suggested to Kosciuszko.
The subject was revisited in the early 21st century. Historian Henry Wiencek strongly criticized Jefferson's refusal of the executorship. Historian Annette Gordon-Reed countered that "Kosciusko screwed up," that the will was "a litigation disaster waiting to happen", since Jefferson had learned there were later wills, and that Jefferson risked financial exposure. Ta-Nehisi Coates, in a 2012 article in The Atlantic, wrote: "Taking all of this in context, I don't think it's sufficient to, on the one hand, laud Jefferson as the great father of our country (which he is), and then render him blameless in his behavior [toward] Kosciuzko." In a 2009 biography of Jefferson, Christopher Hitchens wrote that he "...coldly declined to execute his friend's dying wish."
- Associate Justice Joseph Story issued a decision to remand in Armstrong v. Lear, 25 U.S. 12 Wheat. 169 169 (1827), based on failure to submit the will for probate. The same estate was also the subject of Estho v Lear, 32 U.S. 130 (7 Pet. 130, 8 L.Ed. 632)(1832), in which Chief Justice John Marshall wrote a brief opinion suggesting remand, apparently to Virginia. Finally, the decision in Ennis v. Smith, 55 U.S. 14 How. 400 400 (1852) mentions no individual author; the chief justice was then Roger Taney, and the only jurisdictions mentioned were those of Maryland, the District of Columbia, and Grodno (now in Belarus).
- Gardner, 1943, p. 124.
- Sulkin, 1944, p. 48.
- Ottenberg, Louis (Jan 1958). "A Testamentary Tragedy: Jefferson and the Wills of General Kosciuszko". American Bar Association Journal: 22–26. ISSN 0747-0088.
- Storozynski, 2009, p. 280
- Nash, Hodges, Russell, 2011, p. 218
- Yiannopoulos, 1958, p. 256.
- Ennis v. Smith, 55 U.S. 400, 14 How. 400, 14 L.Ed. 427 (1852)
- Gary B. Nash and Graham Russell Gao Hodges (2008). "Why We Should All Regret Jefferson's Broken Promise to Kościuszko". Friends of Liberty. History News Network. Retrieved 2009-04-30.
- Alex Storozynski (2009). The Peasant Prince: Thaddeus Kosciuszko and The Age of Revolution. Macmillan. p. 282. ISBN 978-0-312-38802-7.
- "Jefferson & Betrayal by Edmund S. Morgan | The New York Review of Books". Nybooks.com. 2008-06-26. Retrieved 2012-11-17.
- Annette Gordon-Reed (2012-10-12). "Thomas Jefferson Was Not a Monster - Debunking a major new biography of our third president". Slate.com. Retrieved 2013-10-05.
- Ta-Nehisi Coates (2012-12-11). "Some Clarification on Thomas Jefferson". Atlantic (magazine).
- Christopher Hitchens (13 October 2009). Thomas Jefferson. HarperCollins. p. 185. ISBN 978-0-06-175397-8.
- Gardner, Monica Mary (1942). Kościuszko: A Biography. G. Allen & Unwin., ltd. p. 136., Book (Google), Book (Gutenberg)
- Nash, Gary; Hodges, Graham Russell Gao (2012). Friends of Liberty: Thomas Jefferson, Tadeusz Kosciuszko, and Agrippa Hull. New York, NY: Basic Books. p. 328. ISBN 978-0-465-03148-1.
- Storozynski, Alex (2009). The Peasant Prince: Thaddeus Kosciuszko and the Age of Revolution. St. Martin's Press, New York. p. 352. ISBN 978-1-4299-6607-8.
- Sulkin, Sidney; Sulkin, Edith (1944). The Democratic Heritage of Poland, "For Your Freedom and Ours": An Anthology. Poland: Allen & Unwin.
- Yiannopoulos, Athanassios N. (1958-05-31). "Wills of Movables in American Conflicts Law: A Critique of the Domiciliary Rule". California Law Review. Retrieved 2013-10-03.
- Armstrong v. Johnson et al. Proceeding by Kosciusko Armstrong against Lewis Johnson, administrator de bonis non of Thadeus Kosciusko, and others, heirs of Thadeus Kosciusko. Orphan's Court, District of Columbia. .
- United States Supreme Court Reports, Volume 14, 1852. John F. Ennis et al v. J.H.B. Smith and others. "General Kosciusko's wills -..." Pages 398-432.