The proviso in the Act of March 3, 1891, c. 540, 26 Stat.
908,
"That in all cases where the original sufferers were adjudicated
bankrupts, the awards shall be made on behalf of the next of kin
instead of to assignees in bankruptcy, and the awards in the cases
of individual claimants shall not be paid until the Court of Claims
shall certify to the Secretary of the Treasury that the personal
representative on whose behalf the award is made represents the
next of kin, and the courts which granted the administrations,
respectively, shall have certified that the legal representatives
have given adequate security for the legal disbursement of the
awards,"
purposely brought the payments thus prescribed within the
category of payments by way of gratuity and grace, and not as of
right as against the government.
Congress intended the next of kin to be beneficiaries in every
case, and the express limitation to this effect excludes creditors,
legatees, assignees and all strangers to the blood.
The words "next of kin," as used in the proviso, mean next of
kin living at the date of the act, to be determined according to
the statutes of distribution of the respective states of the
domicil of the original sufferers.
The said Act of March 3, 1891, c. 540, 26 Stat. 908, clearly
indicates the judgment of Congress that the next of kin, for the
purposes of succession, should be the beneficiaries, as most in
accord with the theory of the appropriations.
These are writs of error to review judgments of the Supreme
Judicial Court of Massachusetts in Nos. 177 and 284, and a judgment
of the Superior Court of the County of New Haven, Connecticut, in
No. 207.
Plaintiffs in error in No. 177 are administrators
de bonis
non
Page 162 U. S. 440
with the will annexed of the estate of Crowell Hatch, deceased,
late of Roxbury, Massachusetts, and defendant in error is
administrator
de bonis non with the will annexed of the
estate of Henry Hatch, deceased.
Crowell Hatch died in the year 1805, leaving three daughters and
one son, Henry Hatch. By his will, all his property was given in
equal shares to the four children. Of each of the three daughters
there are descendants now living. The son died, leaving a widow,
but no issue, and left by his will the residue of his estate to his
widow, who did not afterwards marry. Crowell Hatch was never
bankrupt, and his estate and the estates of his four children have
always been, and are, solvent. Plaintiffs in error, as
administrators of the estate of Crowell Hatch, have received from
the United States certain moneys for the loss of the brig
Mary, being one of the claims on account of the
spoliations committed by the French government prior to July 31,
1801, which were reported to Congress by the Court of Claims
pursuant to the statute of the United States of January 20, 1885,
23 Stat. 283, c. 25, and for the payment of which Congress made
appropriation by the statute of March 3, 1891, 26 Stat. 862, c.
540. By the statutes of Massachusetts in force when Crowell Hatch
died, his estate, after the payment of debts and the expenses of
administration, would have been distributed, if intestate, equally
among his children. St. 1789, c. 2, v. 2, p. 30; Stat. 1805, c. 90,
�� 1 and 2, v. 4, p. 337.
The Probate Court in and for the County of Norfolk, in which
proceedings were pending, ordered a partial distribution of the
fund of nine-sixteenths among the descendants of the three
daughters and of three-sixteenths to the administrator of Henry
Hatch, the son. From this order an appeal was taken to the Supreme
Judicial Court, and the case reserved for the full court, by which
the decree appealed from was affirmed. 157 Mass. 144.
In No. 284, William Gray, as administrator
de bonis non
with the will annexed of the estate of William Gray, who was a
sufferer from the French spoliations, filed his bill in equity in
the Supreme Judicial Court of Massachusetts for instructions
Page 162 U. S. 441
as to the disposition of a fund which had been paid to him under
the Act of Congress of March 3, 1891. On his death, pending the
cause, Robert Codman succeeded to the administration, and was
substituted as complainant. All the living legatees and next of kin
and the representatives of such as were deceased were made parties
defendant. The case was heard by a single judge of the Supreme
Judicial Court of Massachusetts, and reported by him to the full
court, which entered a final decree that the funds in the hands of
the complainant should be "paid over as assets of the estate of
William Gray, the elder, and as passing under his will to the
residuary legatees named therein." 159 Mass. 477.
William Gray died November, 1825, leaving five sons, William R.,
Henry, Francis C., John C., and Horace, and one daughter, Lucia G.
Swett. He left a will by which, after a specific legacy to the
daughter and a conditional legacy to each son, he gave the residue
to his five sons, excluding the daughter. The fund in question, if
it falls to the estate at all, is part of the residue. William R.
died in 1831 intestate, leaving four children him surviving, one of
whom died in 1880, leaving five children. In 1829, Henry assigned
his interest in his father's estate to his four brothers, and died
in 1854, leaving ten children. Francis C. died in 1856, and John C.
in 1881, testate, but without issue. Horace died in 1873 intestate,
leaving five children. In 1847, he assigned all his property, under
the insolvent laws of Massachusetts, to Hooper, Bullard, and
Coffin, as assignees for creditors, and of these assignees two
survive and are parties. Mrs. Swett died in 1844. She had had four
children, of whom William G. died in 1843, leaving a daughter
surviving; John B. died in 1867, leaving a daughter surviving;
Samuel B. died in 1890, leaving five children, and one child, Mrs.
Alexander, still survives.
The representatives of the three brothers, William R., Francis
C., and John C., and the assignees of Horace, contended that the
fund passed by the will of William Gray, and should be paid to them
in equal proportions as representing four of the five residuary
legatees and as being assignees of the fifth son, Henry. The
individual descendants of the brothers, except
Page 162 U. S. 442
those of Henry, made no contrary claim, and by their answers
either took the same position or admitted the allegations of the
bill, and submitted the questions to the court.
The representatives and descendants of Henry Gray insisted that
the fund did not pass under the will, but was a new and subsequent
gift in favor of the next of kin of William Gray; that it should go
to the nineteen grandchildren of William Gray, excluding the great
grandchildren -- namely the three children of William R., who
survived at the date of the act of Congress, the ten children of
Henry, the five children of Horace, and Mrs. Alexander, the one
surviving child of Mrs. Swett, and that they were entitled to
ten-nineteenths of the fund distributed per capita among the
grandchildren.
The representatives and descendants of Lucia G. Swett also
contended that the fund did not pass under the will, and was a
subsequent gift in favor of the next of kin of William Gray, but
they insisted that in the distribution among the next of kin of
William Gray, to be ascertained at the date of the passage of the
act, the issue of the deceased children should take, by right of
representation, the shares of their parents according to the
statute of distributions, or that the fund should be distributed
among the representatives of the next of kin, to be ascertained at
the death of William Gray, the elder. Distributed
per
stirpes, they claimed for the children and grandchildren of
Mrs. Swett one-fourth of the fund, one-sixteenth to Mrs. Alexander,
one-sixteenth to the daughter of William G., one-sixteenth to the
daughter of John B., and one-eightieth to each of the five children
of Samuel B., making another sixteenth; or that, taking the
distribution as of the date of the death of William Gray, the
administrator of the estate of Mrs. Swett was entitled to one-sixth
part of the fund as the representative of one of the six children
of William Gray, surviving him.
In No. 207, the facts appeared to be these: in 1797, the firm of
Leffingwell & Pierrepont owned a ship and cargo, which were
seized by a French privateer in June of that year, and became the
subject of a French spoliation claim. William Leffingwell, the
senior partner, lived in New Haven, Connecticut,
Page 162 U. S. 443
and died testate in 1834. His estate was finally settled in
1844, and no mention of his interest in this claim was made in his
will or in the distribution of his estate. The surviving partner
lived in New York, and died testate in 1878. His executor presented
the claim to the Court of Claims in 1886, and a favorable decision
was secured in 1888, and an appropriation made by the Act of March
3, 1891. In 1886, administration
de bonis non on the
estate of William Leffingwell was taken out by Oliver S. White, in
the Probate Court for the District of New Haven, Connecticut, and
the administrator has received from the representatives of the
surviving partner half the net proceeds of the award. The probate
court, in settling the question of the administration
de bonis
non, treated the fund as part of the residuary estate of the
testator, and ordered its distribution to the residuary legatees
under his will and their representatives or successors. An appeal
was taken to the superior court, which, in conformity to the advice
of the Supreme Court of Errors, 62 Conn. 347, affirmed the decree
of the court of probate.
William Leffingwell left, as his next of kin, him surviving, the
four children named in his will, Mrs. Street, Mrs. Williams, Lucius
W., Edward H., and the children of his deceased son, William C.
Mrs. Street died, testate and solvent, in 1878; Mrs. Williams and
Edward H. died testate and without issue, and the next of kin of
William Leffingwell living on March 3, 1891, were, as was agreed,
according to the statute of distributions of Connecticut (1)
plaintiffs in error, the grandchildren of Mrs. Street; (2) six
children of Lucius W., a grandson of Lucius W., and the widow of a
deceased son of Lucius W.; (3) a son of William C. and three
grandchildren of said William C. The probate decree ordered the
fund distributed among the five residuary legatees named in the
will of William, "one-fifth thereof to the executors or
administrators of Caroline Street, a daughter of said deceased." If
this one-fifth were considered as general assets of Mrs. Street's
estate, it went to the residuary legatee under her will, the
Women's Board of Missions; otherwise it belonged to plaintiffs in
error, as, through her, the next of kin of William Leffingwell on
one line of
Page 162 U. S. 444
descent. Plaintiffs in error claimed that on March 3, 1891, when
the act of Congress was passed, they were entitled to their due
shares
per stirpes of the fund, to-wit, one-third thereof,
there being only three of the five children of William Leffingwell
who survived him whose descendants were living at that date.
Page 162 U. S. 453
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
Page 162 U. S. 454
The French spoliation claims arose from the depredations of
French cruisers upon our commerce, and from the judgments of French
prize courts, and could have been enforced against France only by
our government either by diplomacy or by war. In the negotiations
leading up to the Treaty of September 30, 1800, 8 Stat. 178, these
claims of individuals were presented by our commissioners to
France, who, in turn, asserted claims as a nation against this
government for failure to comply with treaty guaranties and action
in contravention of treaty. The sufferers from the French
spoliations have constantly contended that, by that treaty as
finally agreed on and ratified, all claims for indemnity were
mutually renounced, and that therefore an obligation to indemnify
them rested upon our government.
January 20, 1885, an Act of Congress was approved, 23 Stat. 283,
c. 25, providing that
"such citizens of the United States, or their legal
representatives, as had valid claims to indemnity upon the French
government arising out of illegal captures, detentions, seizures,
condemnations, and confiscations prior to the ratification of the
convention between the United States and the French Republic
concluded on the thirtieth day of September, eighteen hundred, the
ratifications of which were exchanged on the thirty-first day of
July following,"
might apply to the Court of Claims within two years from the
passage of the act, and
"that the court shall examine and determine the validity and
amount of all the claims included within the description above
mentioned, together with their present ownership, and, if by
assignee, the date of the assignment, with the consideration paid
therefor,"
and
"they shall decide upon the validity of said claims according to
the rules of law, municipal and international, and the treaties of
the United States applicable to the same, and shall report all such
conclusions of fact and law as in their judgment may affect the
liability of the United States therefor,"
and that
"such finding and report of the court shall be taken to be
merely advisory as to the law and facts found, and shall not
conclude either the claimants or Congress, and all claims not
finally presented to said court within the period of two years
limited by this
Page 162 U. S. 455
act shall be forever barred, and nothing in this act shall be
construed as committing the United States to the payment of any
such claim."
Proceeding to advise under this act, the Court of Claims, in
many cases, found with regard to claims therein presented that the
original sufferers had valid claims to indemnity upon the French
government prior to the convention of 1800; that these claims were
relinquished to France by the United States government by that
treaty, in part consideration of the relinquishment of certain
national claims of France against the United States, and that this
use of the claims raised an obligation under the Constitution to
compensate the individual sufferers for their losses.
Gray v.
United States, 21 Ct.Cl. 343;
Holbrook v. United
States, 21 Ct.Cl. 435;
Cushing v. United States, 22
Ct.Cl. 28.
As to the present ownership of the claims, the court, in
Buchanan v. United States, 24 Ct.Cl. 74, 81, said:
"What it has endeavored to do is to ascertain the person in whom
the legal title and custody exist -- that is to say, the legal
representative who in an ordinary suit at law or proceeding in
equity would be deemed the proper party to maintain an action for
the recovery of similar assets of the original claimants. In the
cases of individual owners or underwriters, the court has required
a present claimant to file his letters of administration, and prove
to the satisfaction of the court that the decedent whose estate he
has administered was the same person who suffered loss through the
capture of a vessel. . . ."
"In cases of partnership, the court has required evidence of
survivorship, and has allowed only the administrator of the
survivor to prosecute the claim."
"In cases of bankruptcy, it has held, under the decisions of the
Supreme Court, that the claim passed to the assignee, and that on
his death it passed to his administrator. . . ."
"And where the evidence has shown the bankrupt estate to be
still unsettled, the court has held the legal title to be still
vested in the assignee."
"In cases of incorporated companies no longer in existence,
Page 162 U. S. 456
the court has required only the decree of a court of competent
jurisdiction transferring their rights of action to the hands of a
receiver. . . ."
"In none of these cases has the court assumed to determine who
were the next of kin of a deceased claimant, nor whether there are
any, nor in what proportion were the several interests of
partnership owners, nor whether creditors or descendants have the
superior equity, nor whether the children of a bankrupt are
entitled to a residue of his estate, nor whether the receiver of a
defunct corporation represents creditors or stockholders. In other
words, the court has not assumed to determine what persons are
legally or equitably entitled to receive the money which Congress
may hereafter appropriate for the discharge of these claims."
"When the validity of a claim against France and the
relinquishment thereof by the United States, under the second
article of the treaty of 1800, and the amount in which the original
claimant suffered loss, have been determined and reported, Congress
will be in possession of all the facts which this Court under its
present restricted jurisdiction can possibly furnish. It will then
be within the legislative discretion --"
"(1) To ascertain through the proper committees who are the
persons who should receive the money; or"
"(2) To provide for the ascertainment of that fact by additional
legislation; or"
"(3) To confide the money to the administrators and receivers
who, with the exception of a few still existing corporations,
constitute the present claimants, trusting that they and the courts
of which they are the officers and agents will distribute the funds
among the creditors or next of kin of the original claimants."
"The decisions in these spoliation cases are not judgments which
judicially fix the rights of any person, and the obligations of the
government are so far moral and political that they cannot be
gauged by the fixed rules of municipal law for the measure of legal
damages."
These advisory conclusions having been reported to Congress, the
Act of March 3, 1891, 26 Stat. 897, 908, c. 540,
Page 162 U. S. 457
was passed, making appropriations to pay certain enumerated
claims, with the following proviso:
"
Provided that in all cases where the original
sufferers were adjudicated bankrupts, the awards shall be made on
behalf of the next of kin instead of to assignees in bankruptcy,
and the awards in the cases of individual claimants shall not be
paid until the Court of Claims shall certify to the Secretary of
the Treasury that the personal representatives on whose behalf the
award is made represent the next of kin, and the courts which
granted the administrations, respectively, shall have certified
that the legal representatives have given adequate security for the
legal disbursement of the awards."
The cases in hand turn upon the construction of this proviso,
and while it is not denied that Congress had the power to enact
that the next of kin should take irrespective of the legal title to
the assets of the estate of the original sufferers, it is important
in arriving at a conclusion as to whether and to what extent that
was done to refer to the view taken by Congress in respect of the
ground of the appropriations as indicated by its action.
Notwithstanding repeated attempts at legislation, acts in two
instances being defeated by the interposition of a veto, no bill
had become a law during more than eighty years which recognized an
obligation to indemnify arising from the treaty of 1800, and the
history of the controversy shows that there was a difference of
opinion as to the effect of that treaty. 2 Whart.Int.Law §
248, p. 714; Davis, J.,
Gray v. United States, supra.
Under the Act of January 20, 1885, the claims were allowed to be
brought before the Court of Claims, but that court was not
permitted to go to judgment. The legislative department reserved
the final determination in regard to them to itself, and carefully
guarded against any committal of the United States to their
payment. And by the Act of March 3, 1891, payment was only to be
made according to the proviso. We think that payments thus
prescribed to be made were purposely brought within the category of
payments by way of gratuity -- payments as of grace, and not of
right.
In
Comegys v.
Vasse, 1 Pet. 193, the United States had
Page 162 U. S. 458
stipulated with Spain that they would assume and pay certain
claims of their citizens against Spain, and an award was made in
favor of Vasse, one of the claimants, by a commission appointed as
stipulated to examine and adjudicate the claims. Vasse had in the
meantime become bankrupt, and the assignment in bankruptcy was held
to carry the claim with it.
In
Williams v. Heard, 140 U. S. 529,
Comegys v. Vasse was followed and applied to the awards of
the Alabama Claims Commission. The United States had demanded and
received indemnity for losses sustained by their citizens, and had
recognized as valid the class of claims to which the particular
claim belonged, and had created a court to adjudicate thereon. It
was held that the claim passed to the assignee in bankruptcy, and
that payment of awards so made could not be regarded as a mere
gratuity.
In
Emerson's Heirs v.
Hall, 13 Pet. 409, Chew, the collector, Emerson,
the surveyor, and Lorraine, the naval officer, of the port of New
Orleans prosecuted a vessel to condemnation for violation of the
laws of the United States prohibiting the slave trade, and the
district court allowed their claim to a portion of the proceeds of
the sale of the property, but this decree was afterwards reversed,
and the whole proceeds adjudged to the United States.
The Josefa
Segurda, 10 Wheat. 312. Emerson and Lorraine
afterwards died, and March 3, 1831, 6 Stat. 464, Congress passed an
act "for the relief of Beverly Chew, the heirs of William Emerson,
deceased, and the heirs of Edwin Lorraine, deceased," which
directed the portion of the proceeds claimed to be paid over to
Chew "and the legal representatives of the said William Emerson and
Edwin Lorraine, respectively," and under authority of which the
sums which had been adjudged to these officers were paid to them as
provided. One of the creditors of Emerson claimed the sum so paid
to his legal representatives as assets for the payment of his debt,
but it was held that the payment to the heirs was rightfully made,
and that the sum could not be considered in their hands as assets
for the payment of the debts of their father. Mr. Justice McLean,
delivering the opinion of the Court, said:
"A claim having no foundation in
Page 162 U. S. 459
law, but depending entirely on the generosity of the government,
constitutes no basis for the action of any legal principle. It
cannot be assigned. It does not go to the administrator as assets.
It does not descend to the heirs. And if the government, from
motives of public policy or any other considerations, should think
proper under such circumstances to make a grant of money to the
heirs of the claimant, they receive it as a gift or pure donation
-- a donation, it is true, in reference to some meritorious act of
their ancestor, but which did not constitute a matter of right
against the government. "
Manifestly the claims involved in these cases do not come within
the rule laid down in
Comegys v. Vasse and
Heard v.
Williams, and without intimating any opinion on their merits,
the legislation seems to us plainly to place them within that
applied in
Emerson's Heirs v. Hall, though the
circumstances are not the same.
The first clause of the proviso relates to cases where the
original sufferers were adjudicated bankrupts, and specifically
requires the awards to be "made on behalf of the next of kin,
instead of the assignees in bankruptcy." As we have seen, the Court
of Claims had informed Congress that their view was that the action
of the United States came within the constitutional provision as to
the taking of private property for public use, and hence that
Congress was bound to pay the claimants what was due them by reason
of such taking, and further that they had accordingly made awards
in favor of assignees in bankruptcy. But Congress declined to
accept the views of the Court of Claims and to treat these claims
as property of the original claimants, transferable and
transmissible like other property of the nature of choses in
action, and expressly provided that the awards should be made to
the next of kin, instead of the assignees in bankruptcy.
In
Henry v. United States, 27 Ct.Cl. 142, 145, decided
after the Act of March 3, 1891, was passed, the court makes a
particular explanation as to this part of the proviso, saying:
"Among the claimants were several assignees or representatives
of assignees of original sufferers who had been declared bankrupts,
and the court reported in those cases that the assignees
Page 162 U. S. 460
or representatives of the assignees were entitled to receive
from the United States the sum found to be the amount of the
losses."
"In Congress, an appropriation bill was drawn and printed
containing appropriations for all the persons named in the reports
of the Court of Claims. From that bill were stricken out all
appropriations to assignees in bankruptcy so far as their
representative character appeared in the language of the act. This
is a decided indication that Congress did not intend to pay
assignees in bankruptcy."
It was held that the language used in the first clause was
intended to apply to future reports, Congress having disapproved
the recommendations in favor of assignees made up to the date of
the act. That disapproval practically illustrates the difference of
view between Congress and the Court of Claims as to the basis on
which the allowances were made.
The second clause provides
"that the awards in the cases of individual claimants shall not
be paid until the Court of Claims shall certify to the Secretary of
the Treasury that the personal representatives in whose behalf the
award is made represent the next of kin."
Reading the first clause in the light of the second, the meaning
is that in case of bankruptcy, the award should be made as it would
be if the original sufferer had not been declared bankrupt, namely,
"on behalf of the next of kin." And the occasion of the
introduction of the first clause obviously was to prevent
repetition of the action which had proved fatal to some of the
recommendations.
The second clause is not limited to the cases named in the first
clause, although in a certain sense it may be said to include them
by way of anticipation, for it applies to all cases of individual
claimants, as contradistinguished from corporations, and requires
the certificate as a prerequisite to their payment "that the
personal representatives on whose behalf the award is made
represent the next of kin."
It appears to us that Congress intended that the next of kin
should be the beneficiaries in every case; that the limitation is
express, and that creditors, legatees, and assignees, all strangers
to the blood, are excluded.
Page 162 U. S. 461
No reason is suggested for cutting off creditors where the
original sufferer became bankrupt, and not cutting them off where,
not having gone into bankruptcy, the estate was insolvent, nor for
the payment of awards to the original sufferer's next of kin if he
were bankrupt, and not if he were not. The general rule is that so
long as the debts of a decedent remain unpaid, the assets which
come into his estate are to be applied in payment, and these
moneys, if they could be treated as assets at all (being paid over,
not as in liquidation of preexisting claims thereby acknowledged,
but as concessions made on equitable considerations), would partake
of the nature of subsequently discovered assets, and be liable to
be subjected to the payment of debts. But this cannot be so, for
the awards are explicitly required to be made on behalf of the next
of kin, and to be paid only to personal representatives
representing the next of kin.
The certificate must be that the personal representative does in
fact represent the next of kin, and so receives the payment on
their behalf. This certificate is as much required with respect of
an administrator with the will annexed as of an administrator in
case of intestacy, and yet administrators with the will annexed
hold adversely to the next of kin, and do not represent them, if
the fund is to be distributed according to the will as assets of
the estate. Congress well understood this in requiring that next of
kin must be represented notwithstanding many of the items of
appropriation were in favor of administrators with the will
annexed. In
Buchanan v. United States, supra, the Court of
Claims called the attention of Congress to the fact that
notwithstanding its own recommendations, it remained for Congress
to determine "first the measure of the indemnity for which the
United States should be held responsible; second, the persons who
are equitably entitled to receive it." And Congress thereupon
determined the next of kin to be the persons "equitably entitled to
receive," and while, in the interpretation of wills, "next of kin"
is sometimes construed to mean other persons than those of the
blood or under the statute or distributions, as, for instance,
legatees,
Page 162 U. S. 462
we see no reason to construe this statute as having that
operation.
In
Milligan's case, as appears from the opinion of the
Court of Claims in
Durkee v. United States, 28 Ct.Cl. 331,
a certificate was refused because there were no blood relations of
the original sufferer, and the administrator had really prosecuted
the claim for the benefit of the widow's next of kin. Congress then
passed the Act of August 23, 1894, 28 Stat. 487, sec. 5, providing
that
"in the event the court shall find there were no next of kin,
and that there was a widow, then that said sum be paid to the
executor, personal representative or next of kin of such
widow."
This made a new disposition of the fund, upon the theory that it
did not belong to the general assets of the original sufferer's
estate, and that where there were no "next of kin," in the ordinary
signification of the words, new legislation was required.
The events which had given rise to these claims had occurred
nearly a century before, and there was nothing unreasonable in the
determination of Congress that only the immediate family of the
original sufferers should participate in these awards. These
sufferers had been in their graves for sixty years. The reasons
which might have influenced them in making particular testamentary
dispositions had disappeared with time. The claims of creditors had
long been outlawed. Equities had become too complicated to be
traced. It was enough if the fund passed to persons of the blood of
the original sufferers, or who might be entitled under the statutes
of distributions, which had been provided in each state, by general
legislation, as to the devolution of property in case of intestacy.
After all, it would then go as the original claimants might have
desired if no special reasons operated to the contrary, and as in
frequent instances it would have finally gone when those reasons,
if once existing, had ceased to operate.
And this conclusion is in harmony with the legislation
considered in
Emerson's Heirs v. Hall, supra, with §
1981 of the Revised Statutes, in reference to recovery of damages
by the legal representatives of persons killed by wrongful act
in
Page 162 U. S. 463
violation of the Civil Rights Act of 1871, the Act of Congress
of February 17, 1885, c. 126, 23 Stat. 307, providing for actions
in the District of Columbia for the death of persons caused by
wrongful acts of others, and generally with the statutes of the
states giving a right of action for injuries resulting in death.
Tiffany on Death by Wrongful Act, App. 281, 344.
The third clause provided that the awards should not be paid
until
"the courts which granted the administrations, respectively,
shall have certified that the legal representatives have given
adequate security for the legal disbursement of the awards."
It is argued that this implies that the money received by them
was to be administered as assets belonging to the estate, but we do
not think so. It often happens that administrators receive money
which is not to be administered as part of the general assets, but
is to be distributed in a particular way. Whether, upon his general
bond, an administrator could be held for the performance of such
special duty, might depend upon the local statutes of each state,
and Congress was not obliged to consider whether the ordinary bond
would cover the case, or whether a new bond would be required, or
whether additional state legislation would be necessary. At all
events, the express language of the act cannot be overcome by the
difficulty suggested, if it be such, and the intention of Congress
in favor of the next of kin thereby rendered liable to be
defeated.
From these considerations, and by necessary construction of the
language employed, it results that "next of kin," as used in the
proviso, means next of kin living at the date of the act. The Court
of Claims must certify that the personal representatives "represent
the next of kin," and that court has properly held that, before
there can be a certificate of that fact, it must appear that some
next of kin are now in existence.
Hooper v. United States,
28 Ct.Cl. 48;
Durkee v. United States, 28 Ct.Cl. 326. This
construction is sustained by the legislation of Congress referred
to in
Durkee v. United States, where two instances are
mentioned of special acts giving the fund to other than blood
relations of the original sufferers. The exceptions prove the
rule.
Page 162 U. S. 464
And we are of opinion that Congress, in order to reach the next
of kin of the original sufferers, capable of taking at the time of
distribution on principles universally accepted as most just and
equitable, intended next of kin according to the statutes of
distribution of the respective states of the domicile of the
original sufferers. In all the states, real estate descends equally
to the children of the decedent and to the issue of deceased
children taking
per stirpes, and in most of them, personal
estate is distributed in the same manner, the variations being
immaterial here. 1 Stimson's American Statute Law, §§
3101-3103. The object of Congress was that the blood of the
original sufferers should take at the date of the passage of the
act, and the statutes of distribution are uniformly framed to
secure that result as nearly as possible, the right of
representation being recognized. To hold that the meaning is
nearest of blood on March 3, 1891, might cut off many of the blood
who would otherwise take by descent from those nearest at the
ancestors' deaths, and an intention to do this contrary to the
general rule cannot be imputed. So that, in ascertaining who are to
take, the fund, though not part of the estates of the original
sufferers, may be treated as if it were for the purposes of
identification merely.
In the construction of wills and settlements, after considerable
conflict of opinion, the established rule of interpretation in
England is that the phrase "next of kin," when found in ulterior
limitations, must be understood to mean "nearest of kin," without
regard to the statutes of distribution. 2 Jarman on Wills (5th ed.)
*108, *109. This rule was followed in
Swasey v. Jaques,
144 Mass. 145, where Field, J., speaking for the court, said:
"It is certainly difficult to distinguish between the expression
'next of kin,' 'nearest of kin,' 'nearest kindred,' and 'nearest
blood relations,' and primarily the words indicate the nearest
degree of consanguinity, and they are perhaps more frequently used
in this sense than in any other. What little recent authority there
is beyond that of the English courts supports the English view,
and, on the whole, we are inclined to adopt it.
Redmond v.
Burroughs,
Page 162 U. S. 465
63 N.C. 242;
Davenport v. Hassel, Busb.Eq. 29;
Wright v. Methodist Episcopal Church, Hoff.Chan. 202,
213."
But the rule does not appear to have been approved in New York
and New Hampshire.
Tillman v. Davis, 95 N.Y. 17, 24;
Pinkham v. Blair, 57 N.H. 68.
Moreover, it is settled in Massachusetts, as well as elsewhere,
that,
"where a clause is fairly susceptible of two constructions also,
that certainly is to be preferred which inclines to the inheritance
of the children of a deceased child"
Bowker v. Bowker, 148 Mass. 198, 203;
Jackson v.
Jackson, 153 Mass. 374, and in Connecticut that
"when the terms of a will leave the intention of the testator in
doubt, the courts generally incline to adopt that construction
which conforms more nearly to the statute of distributions,"
Geery v. Skelding, 62 Conn. 499, 501;
Conklin v.
Davis, 63 Conn. 377. As put by Rapallo, J., in
Law v.
Harmony, 72 N.Y. 408:
"When the language of a limitation is capable of two
constructions, one of which would operate to disinherit a lineal
descendant of the testator, while the other will not produce that
effect, the latter should be preferred. An intention to disinherit
an heir, even a lineal descendant, when expressed in plain and
unambiguous language, must be carried out, but it will not be
imputed to a testator by implication, when he uses language capable
of construction which will not so operate."
We are not, however, dealing with wills or settlements, but with
the words "next of kin," as used in a statute passed in
acknowledgment of losses incurred by the ancestors, under
circumstances rendering conjecture futile as to what their action,
if exercising a volition in the matter, might be, and where the act
clearly indicates the judgment of Congress that the next of kin,
for the purposes of succession generally, should be the
beneficiaries, as most in accord with the theory of the
appropriations.
The Supreme Court of the District of Columbia,
Gardner v.
Clarke, 20 D.C. 261, the Supreme Court of Pennsylvania,
In
re Clements' Estate, 160 Penn.St. 391, and the Circuit Court
of Baltimore County, Maryland, 49
Page 162 U. S. 466
Phil.Leg.Int. 147, have expressed similar views to the
foregoing.
The judgments are, severally, reversed, and the causes remanded
for further proceedings not inconsistent with this opinion.
MR. JUSTICE GRAY did not sit in these cases, or take any part in
their decision.
