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Opinion of the Court.
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 C. Cl. 480 ; Durkee v. United States, 28 C. CI. 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.
Opinion of the Court.
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 domicil 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, SS 3101, 3102, 3103, pp. 390, 391. 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. 135, where Field, J., speaking for the court, said: “It is certainly difficult to distinguish between the expressions ' 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. Reilmond v. Burroughs,
Opinion of the Court.
63 N. C. 242; Davenport v. Massel, 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. 226.
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 Low v. Harmony, 72 N. Y. 408, 414: “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 Dist. Col. 261; the Supreme Court of Pennsylvania, Clements' Estate, 160 Penn. St. 391, and the Circuit Court of Baltimore County, Maryland, Leffingwell's Estate, 49
Phil. Leg. Int. 147, have expressed similar views to the foregoing. The judgments are, severally, reversed, and the causes re
manded for further proceedings not inconsistent with this opinion.
MR. JUSTICE GRAY did not sit in these cases or take any part in their decision.
WALLACE v. UNITED STATES.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE
DISTRICT OF KANSAS.
No. 731. Submitted March 2, 1896. – Decided April 20, 1896.
W. lived on a tract of land next to one owned and occupied by his father in
law Z., concerning the boundary between which there was a dispute between them. While W. was ploughing his land, Z., being then under the influence of liquor, entered upon the disputed tract and brought a quantity of posts there, for the purpose of erecting a fence on the line which he claimed. W. ordered him off, and continued his ploughing. He did not leave, and W. after reaching his boundary with the plough, unhitched his horses and put them in the barn. In about half an hour he returned with a gun, and an altercation ensued, in the course of which W. was stabbed by a son of Z. and Z. was killed by a shot from W.'s gun. W. was indicted for murder. On the trial evidence was offered in defence, and excluded, of threats of Z. to kill W.; and W. himself was put upon the stand and, after stating that he did not feel safe without some protection against Z., and that Z. had made a hostile demonstration against him, was asked, from that demonstration what he believed Z. was about to do? This question was ruled out. Held, that if W. believed and had reasonable ground for the belief that he was in imminent danger of death or great bodily harm from Z. at the moment he fired, and would not have fired but for such belief, and if that belief, founded on reasonable ground, might in any view the jury could properly take of the circumstances surrounding the killing, have excused his act or reduced the crime from murder to manslaughter, then the evidence in respect of Z's threats was relevant and it was error to exclude it ; and it was also error to refuse to allow the question to be put to W. as to his belief based on the demonstration on Z.'s part to which he testified.
Statement of the Case.
Where a dificulty is intentionally brought on for the purpose of killing the
deceased, the fact of imminent danger to the accused constitutes no defence; but where the accused embarks in a quarrel with no felonious intent, or malice, or premeditated purpose of doing bodily harm or killing, and under reasonable belief of imminent danger he inflicts a fatal wound, it is not murder.
JERRY Wallace was convicted, at the May term, 1895, of the District Court of the United States for the District of Kansas, of the murder of Alexander Zane, on March 7, 1895, at the Wyandotte Indian reservation, and sentenced to be hanged.
The evidence tended to show that Wallace had lived on that reservation, for four years, on a piece of land owned by his wife, Jane, a daughter of Alexander Zane, to whom he was married in 1891. Ill feeling had for a long time existed between Zane and Wallace, growing out of a dispute between them as to the true boundary line of the land owned or claimed by Jane Wallace, and on which she resided, and the land of Julia, a minor daughter of Alexander Zane. Surveys had been made and patents had issued, but the true boundary line, if established by the surveys, had not been accepted by the parties. March 7, 1893, about seven o'clock in the morning, Alexander Zane, accompanied by his son, Noah, who was about fifteen years of age, and three other parties, proceeded with two wagons loaded with posts from his farm to the land on which Wallace resided, and entered the field occupied by Wallace, which he was at that moment engaged in ploughing, through a gap in the fence made by Alexander Zane, and went across it to the fence on the eastern side, and there began to unload the posts and to plant or drive them into the ground along the fence line which they proposed to establish. Wallace and one Denmark were engaged in ploughing the field, being in different parts and moving in opposite directions. As Zane and his party entered the field and were crossing it, Wallace was ploughing towards its eastern side, which he had reached, and was returning when Zane and his party passed about fifty or sixty yards from him, moving in a southeasterly
Wallace had impaired eyesight and did not see Zane until just before he passed, and then called to him saying,