Statement of the Case.

cut, 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 Connecticut, 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

Argument for Plaintiffs in Error.

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.

This court, before argument began, ordered that three hours be allowed counsel for the plaintiffs in error in the argument of these cases, and that three counsel be heard on each side. As it is manifestly impossible to find room for all these arguments in the report of the case, the reporter confines himself to reporting the arguments in the first case in order on the docket, and only upon the points on which the decision of it turned.

Mr. George A. King (of Boston) for plaintiffs in error in Blagge v. Balch, No. 177.

Is the fund received by the plaintiffs in error, in their capacity of administrators, to be treated (a) as a part of the estate of Crowell Hatch; or (b) as an appropriation made for the direct benefit of the next of kin of the said decedent? The Supreme Court of the District of Columbia has determined that the grant is not to the estate of the decedent but to the next of kin. Gardner v. Clarke, 20 Dist. Col. 261. The Supreme Court of Pennsylvania has also so decided. In re Clement's Estate, 150 Penn. St. 85; Appeal of Bailey, 160 Penn. St. 391.

The Supreme Court of Massachusetts cannot be cited in favor of either proposition. The dissenting opinion in Codman v. Brooks, 159 Mass. 477, written by the Chief Justice, takes the ground that the creditors of the original sufferer are to be excluded from receiving the money. If this be so, it would seem to follow, necessarily, that the fund is no part of the estate of the original sufferer, but a gift to his next of kin.

The Supreme Court of Connecticut stands alone in the opinion that the fund is to all intents and purposes a part of

Argument for Plaintiffs in Error.

the estate of the original decedent. Leffingwell's Appeal, 62 Connecticut, 347.

We are of opinion that the fund goes to the next of kin living at the passage of the act, for the following reasons, in addition to those given in the above cited cases.

I. If the awards are to the next of kin, there seems to be no escape from the conclusion that they are to be paid to such next of kin as are represented by the administrators. This representation is to be established by evidence sufficient to enable the Court of Claims to grant its certificate. It is not that representation which inheres in the office of administrator, for such representation only applies to the decedent. Inasmuch as it is a fact to be proved by evidence it is not a representation that grows out of the nature of the office. In this case, the administrators of Crowell Hatch do not now and never did represent Henry Hatch in law or fact. Having died long since, he cannot be represented by these administrators. The only next of kin who can be represented, who can authorize anybody to represent them, are the living next of kin. The next of kin of the original sufferer are frequently widely scattered. The practice in the Court of Claims has uniformly been, as it necessarily must be, to require proof that all these persons concur in appointing the administrator as their representative. That was done in this case. The living next of kin are, therefore, the persons represented by the administrators, and are, therefore, the persons entitled to the

fund.

II. It may be suggested, also, that it is hardly reasonable to suppose that Congress meant that one set of men should elaborately provide for this representation in order that they might be excluded from the fund for the benefit of other persons.

III. The purpose of the act being to discharge an equitable obligation and make an award to the living persons descended from those who lost their property for the benefit of the government, the purpose of the proviso was plainly to prevent any payment where there were no representatives of the original sufferer to receive the fund.

Argument for Defendant in Error.

There are a number of cases where there are appropriations in this act and where no money has been or ever can be obtained because the family of the loser has become extinct, and there are no living persons to make proof of representation and get a certificate from the Court of Claims.

IV. Of the four children of Crowell Hatch, there are living descendants of three, and they are the only next of kin. It was wholly by representing these that the administrators were able to obtain the money awarded. Henry Hatch, the petitioner's decedent, left no issue. It would have been impossible to obtain from the government one dollar on his

account.

Mr. Francis V. Balch and Mr. Felix Rackemann, for defendant in error in No. 177, submitted on their brief.

In seeking for the key note of the proviso, it is plain that Congress was dealing with the settlement of claims nearly one hundred years old, and that numbers of the original sufferers had become bankrupt (many driven into bankruptcy by these very spoliations), and no single survivor of the original sufferers remained.

Congress had had the "Alabama Claims" distribution as an object lesson, where the disputes with assignees in bankruptcy, and the practical difficulties of proper distribution among creditors in insolvency after the lapse of years, stood prominent as danger signals. If creditors in bankruptcy of "Alabama" claimants were difficult to ascertain and reach, how would it be with the bankruptcy files of 1800, and where would the labor and the litigation end?

The proviso only applies to cases where the original sufferer was bankrupt. No part of it is intended to operate in any other case. All other cases stand on the word "pay" and the designation of the payees in the schedule.

Assume for the moment that the proviso applies to the present and not to future appropriations.

The proviso is one sentence, broken only by commas. It begins, "provided that in all cases where the original sufferers

Argument for Defendant in Error.

were adjudicated bankrupts." Here is a distinct and technical description of a particular catastrophe well known to every one-lawyer or layman. Beginning in this way, with special emphasis placed upon this particular event, the whole proviso would be expected to relate to and be applicable to this event unless some other is distinctly introduced. If a new class of events were to be dealt with in the rest of the sentence it should naturally be clearly demarked, as if, for instance, it said, "and in cases where the original sufferer was not adjudged bankrupt," such and such shall be the rule. The sentence, however, goes on, "and the awards in the cases of individual claimants shall not be paid until," etc. There is no sensible construction which can be given to “individual claimants" which will make it distinct and marked off from cases where the original sufferer was adjudicated bankrupt.

Would not assignees of bankrupts be individual claimants? Would not the next of kin on whose behalf the award is to be made in cases of bankruptcy be individual claimants?

We submit that the words "and in the cases of individual claimants" mean simply this, in the case of "the individual claimants," or in the case "of each individual claimant" who was so adjudicated, i.e., that in each case where there was bankruptcy of the original sufferer or claimant, there shall be an investigation, to make sure that the party prosecuting the claim is acting for the next of kin, and not for the creditors. This is further shown by the word "respectively." This makes the whole consistent and clear, and is made further apparent by the differences in the operative words in the two parts of the sentence. In the leading part of the sentence the words are, the "awards shall be made," but in the second part of the sentence the language is "and the awards

shall not be paid." This is natural if the latter part of the sentence provides merely an additional precaution affecting the cases spoken of in the earlier part; but it would be nothing short of extraordinary if the sentence should provide for the few cases of bankruptcy by mandatory words, "The awards shall be made," and should then proceed to dispose of the immeasurably larger and more important class of non