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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 Heard v. Williams, 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, 413, 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. 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 debts, 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

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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 heir. 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 made, 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 C. 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:

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'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 as

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signees, 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.

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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 insolv ent; 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 preëxisting 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 of distributions, as for instance, legatees,

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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 C. Cl. 326, 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 word, 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 section 1981 of the Revised Statutes in reference to recovery of damages by the legal representatives of persons killed by wrongful act in