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Argument for Defendant in Error.

bankrupts, not by saying in such cases, too, the awards “shall be made on behalf of next of kin,” but by a merely negative administrative provision as to their payment when made. The reason for such a precaution in case of bankruptcy becomes apparent when it is remembered that the administrator or executor of the assignee might claim to receive the award on behalf of the next of kin, not being expressly excluded as the assignee himself is, Richards v. Maryland Insurance Co., 8 Cranch, 84. Such administrator or executor might well be hostile to the next of kin, and even if the award were to the executor or administrator of the bankrupt sufferer he might be under the dominance of the creditors.

Another consideration leads irresistibly to the same conclusion. Had it been the intention in all cases to make the "payment” as a gratuity to the next of kin, it would have been the simplest thing possible to have said so. How strange, if such was the intent, to begin by laying special stress upon the peculiar case of original sufferers who were adjudicated bankrupts. Such a case would be the exception, not the general rule. As well might the law say that every man who carries a concealed revolver shall be subject to a fine of five dollars, and every man who carries a concealed weapon shall be subject to a fine of five dollars.

Legal propositions do not ordinarily have the certainty of mathematical conclusions, but it seems almost a mathematical certainty that the latter part of this proviso could not have been intended to cover all cases of claimants. If not, what class was it intended not to cover ?

It will be said it was intended to cover all but the “corpo rate” claimants, and that as a corporation could not have been adjudicated bankrupt, this construction leaves the bankrupt original sufferers to make one class, the solvent individual sufferers another class, and the corporate sufferers a third class, the provisions of the latter part of the proviso embracing all the bankrupts and all the individual non-bankrupts, it being in the case of bankrupts an additional precaution, and in the case of the non-bankrupts the sole precaution.

This is a possible construction, but it gives no explanation

Argument for Defendant in Error.

of the emphasis laid on the case of bankruptcy, or of the resulting inanity of providing clearly for the few, and ambiguously and imperfectly for the many, or of the improbability of any effort to produce in this cumbrous and dubious way an effect which only needed a word or two. Surely, to make an executor of a will take on behalf of next of kin (and there were many cases of executors among the claims appropriated for, our own being a case of administration with will annexed), it needs as strong language as to make an administrator of a bankrupt or of his assignee take on behalf of next of kin.

The marginal note to the proviso, though of no great weight, shows that the proviso was understood merely to cover cases of bankruptcy.

If it is considered forced to read “individual claimants" as “the individual claimants,” thus making the proviso to require a certificate in each individual case of a bankrupt sufferer, which we submit is the most natural and must have been the real meaning, we may read it as applying to all cases where the administrators or executors, who are to take the bankrupt claim on behalf of next of kin are “individuals,” it not being considered necessary to require a certificate in the case of corporate administrators or executors, as corporations would only be admitted to such trusts where clearly responsible. There are three such cases, at least, among those for which appropriations are made: The Safe Deposit and Trust Company, Baltimore, the Penn Company and the Union Trust Company, New York. Or “individual claimants” may be intended to designate the “next of kin ” who are substituted for creditors by the first part of the sentence, and in a certain loose sense may be considered as “individual” claimants as contradistinguished from an assignee claiming not for himself but others. In this sense again "individual claimants” would cover the cases of bankruptcy and no more.

But the proviso is not applicable at all to the present appropriations.

This appears from its use of the word “rards,” from the evident belief on the part of the framers of the law that they

VOL. CLXII-29

Argument for Defendant in Error.

bad weeded out all cases of bankruptcy from the present appropriations, and by the use of the future tense.

This was so held in a well considered case in the Court of Claims. Henry v. United States, 27 C. Cl. 142.

If for the sake of argument the case at bar be conceded to be one intended to be covered by the words “individual claimants,” still the question recurs, What does the proviso provide in such case?

It provides a partial protection against creditors but does not attempt to protect against them absolutely. It does not attempt to fix the class who are to take absolutely.

The shield is applied to a broader class, it extends to cases where the original sufferer was not bankrupt; but the shield is not itself changed.

That protection is intended against creditors generally may, for the argument, be granted, but how thorough protection?

Where the original sufferer was bankrupt, and his assignee claimed, the award, we have seen, was to be changed so as to go to the executor or administrator.

Here no change is attempted in the award, but certain partial and preliminary precautions are to be taken before paying the award.

It is to appear, in substance, that debts are out of the way, that the heirs or legatees moved in getting the administration, and that the administrator is under suitable bonds.

If the proviso does operate as though it said the awards are to be on behalf of next of kin in all cases except those of corporate original sufferers, it uses "next of kin”in a loose sense, to cover all claimants under a solvent original sufferer.

The statute is wholly colorless as to any intent to set off next of kin against legatees. Can it be supposed for a moment that an executor could not be a claimant? Where there was a will there could be no administrator except with will annexed. The case at bar is such. Does the statute say that in all such cases the award shall be changed and made to an agent of the kin? Certainly not. What the statute does, upon the present assumption, is to set off kin as representing

Argument for Defendant in Error.

both heirs and legatees against creditors, the most conspicuous class, "next of kin,” being put forward for the whole.

If it be said that the words “next of kin” cannot be so broadened, how narrow shall they be made? As narrow as in Swazey v. Jaques, 144 Mass. 135, cutting off nephews if there was a brother? Surely not. And does not the impossibility of this show that the words were used in a loose and general sense, not the technical one? Why infringe farther than necessary upon the doctrine of ownership by original sufferers ?

But suppose for a moment this statute uses “next of kin" as opposed both to legatees and creditors, all it requires is that there should be next of kin and that the administrator should represent them.

The statute in that case does indeed say that the administrator must represent next of kin, but it does not say he must represent living next of kin, nor if it could be so construed does it say he must represent such exclusively. It may well be that Congress intended that if there were no living kin there should be no payment of a claim likely to prove escheated.

In the case at bar, the administrators could truly say they represented living next of kin, but they could not truly say they represented living next of kin exclusively. They represented those claiming under Henry Hatch, as well. How and when did they cease to represent us? They could truly say they represented next of kin exclusively, if, as is here contended, those living at the death of Crowell Hatch were the next of kin intended by the statute. It was a fraud on the Court of Claims if they stated they represented living next of kin exclusively.

But whatever the password was, it has been given. The Court of Claims has lifted the gate and we are through. Now the law must have its course, our law, the Massachusetts law, the law which these administrators have given bonds to follow, and which bonds they were obliged to certify to the Court of Claims in order to get this very money.

But if“ next of kin” means kin strictly, and that such kin

Argument for Defendant in Error.

alone are to take, then it means kin living at the decease of the original sufferer.

The period of decease is always, in the absence of clear intent to the contrary, the period at which heirs or next of kin are determined. Jarman on Wills, 5th Amer. ed. 670.

The mind of the draftsman was turned to the past, to the original sufferer; did it at once turn to the present on the mention of next of kin?

It will be said that a gratuity cannot be given to a dead person. In the first place it is not a case of gratuity; and in the second place, even if it were a gratuity, the beneficial donees who, it is admitted, must, in such case be living, may be as well designated "those now entitled had it formed part of the sufferer's estate" (which is equivalent to next of kin at death of the sufferer) as “those now entitled had the sufferer died in the state of his domicil possessed of the property, intestate, and without surviving husband or wife.” There is no word in the whole proviso which implies that now living, next of kin, were meant.

Granting, then, that if Crowell Hatch had willed away his property from his kin, the kin and not legatees would have taken, yet here he willed to his kin, his four children, of whom Henry was one, and whose administrator must take a share in either aspect.

Suppose it is a gratuity, — why infringe farther than is necessary upon the rights of the original sufferers to have the funds treated as part of their estates?

Even if the court should believe that in some vague and general way the next of kin living at the date of the act were intended to take, the intent is not so expressed that it can so take effect.

The meaning of this statute cannot be guessed at.

Suppose it were a will where, if ever, intent is the polar star of construction. First comes a clear grant to pay a debt which has passed into judgment, then comes this ambiguous proviso. It could not operate to cut down a clear grant.

There is certainly nothing within the four corners of this instrument which shows such intent in any clear form ; quite

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