
    THE SHIP THERESA. John L. Durkee, Administrator, v. The United States.
    [French Spoliations, 393.
    Decided April 24, 1893.]
    
      On the Proofs.
    
    An owner dies in Baltimore in 1844, leaving his widow, but no known next of kin. He bequeaths all of his property to her. Her administrator brings suit under the statute. His administrator now seeks to be substituted as claimant.
    
      I.The decisions and reports of the court under the French Spoliation Act 1885 (23 Stat. L., 283) are neither judgments nor awards, hut simply the determination of abstract rights for the information and guidance of Congress.
    II.When proceeding under the original statute, the court regarded the “present ownership” as lodged in the administrator of the original sufferer. But under the Act Scl March, 1891 (26 Stat. L., 862, 908) it has been held that the administrator must, in fact, represent his next of kin.
    III.The administrator of the widow or legatee of an original sufferer, representing her next of kin and not his, is not entitled to relief.
    
      The Reporters’ statement of the ease:
    The administrator of John A.Dubernat, one of the owners of the cargo, did not appear and file his petition. The administrator of the widow, Louise E. 0. Durkee, did do so within the jurisdictional period of the statute. The former now seeks to be substituted as claimant with the consent of the latter. Other cases under this vessel were previously disposed of by the court and reported to Congress. The following are the facts now filed.
    I. The ship Theresa sailed from the port of L’Arcahaye, bound for the port of Philadelphia, on the 2d of August, 1795. On the 3d of the same month she was captured on the high seas by the French privateer Passepartout and taken into the port of Leogane, where both vessel and cargo were .condemned and sold as prize by the French commandant, André Eigaud, commander of the French forces on the southern part of the island of San Domingo. The grounds of condemnation were that the captain of the Theresa had fired upon the French flag and that the cargo belonged to French emigrants trading with the enemies of the French Eepublic. This court finds that the grounds of condemnation were unfounded in fact. The owners subsequently presented an appeal to the French minister at Philadelphia, and upon the establishment of the council of prizes they presented their claims to that tribunal, but no action appears to have been taken on their appeal by the council of prizes.
    II. The Theresa was a duly registered vessel, built in Ehode Island in 1789, and of 127 tons burden. She was owned by William Sonntag and Frederick Franck De La Eoche, of Phila* delphia.
    
      III. Tbe cargo of the Theresa consisted of sugar, coffee, and other merchandise, and was owned jointly by the firm of William L. Sonntag & Oo. and the supercago of the vessel, John A. Dubernat, of Philadelphia.
    IY. The value of the ship was.-------- $4,763
    The freight earnings of the vessel for the voyage were. 1,766
    The value of the cargo was. 27, 075
    Making the total amount of loss.-__ 33, 604
    T. In case No. 1845. — William L. Sonntag and Frederick Franck De La Boche were joint owners of the vessel.
    
      In cases No. 1844 and■ 393. — William L. Sonntag & Oo., of Philadelphia,, of whom William L. Sonntag was the surviving partner, were the owners of one-half the cargo.
    John A. Dubernat was the owner of the remaining one-half of the cargo. The loss which he suffered by reason of the capture of the cargo was as follows:
    One-half the cargo-----$13,537.50
    YI. In cases 184. Í, 1845. — The claims of Wm. L. Sonntag and Frederick Frank De La Boche were reported to Congress December 14,1891.
    YII. In case No. 393. — The court now finds the following additional facts:
    John A. Dubernat was a citizen of the United States. He died in Baltimore in 1844, leaving his widow, Louisa B. C. Dubernat, who subsequently married and became Louisa B. C. Durkee, but no children, relations, or other next of kin, so far.as can be ascertained. He bequeathed all of his property, real and personal, including “money to be recovered due me,” to his widow, and she was also entitled, in the absence of next of kin, to take the whole of his estate by the law of Maryland. George W. Lockwood is the administrator of the estate of the original sufferer, John A. Dubernat, but represents no known heirs, descendants, or next of kin of John A. Dubernat. John L. Durkee is the administrator of the estate of Louisa B. C. Durkee, widow and legatee of John A. Duber-nat, and represents her nephews and nieces. The administrator of John A. Dubernat did not appear and file his petition within the period prescribed by law, but now seeks to be substituted as claimant, with the consent and in the stead of the administrator of Louisa B. ,0. Durkee.
    
      Tbe conclusions of law were as follows:
    
      Mr. W. 8. Flippin for tbe claimant.
    
      Mr. Alexander Moore and Mr. O. W. Bussell for tbe defendants.
    1,. Tbe seizure and condemnation of tbe ship Theresa were illegal, and John A. Dubernat bad a valid claim of indemnity tberefor upon tbe French Government, and bis claim was relinquished to France by tbe Government of tbe United States, and if living be would now be entitled to indemnity from tbe United States.
    2. Tbe claimant, John L. Durkee, is not entitled to maintain this suit as administrator of tbe estate of Louisa R. 0. Durkee, widow of the original claimant, John A. Dubernat.
    3. George W. Lockwood, tbe administrator of tbe estate of John A. Dubernat, having failed to show that be in fact represents tbe next of kin of John A. Dubernat, tbe original sufferer, should not be allowed to come in and be substituted as claimant in these proceedings.
   Nott, J.,

delivered tbe opinion of tbe court:

Tbe French Spoliation Act 1885 (23 Stat. L., 283) does not indicate the persons, if any, to whom relief will be ultimately granted. On tbe contrary, it provided that nothing in tbe act shall commit tbe United States to tbe payment of these claims (§ 6). Tbe decisions and reports of tbe court in these cases are consequently neither judgments nor final awards, but simply tbe determination of abstract rights for tbe information and guidance of Congress. When tbe act was passed none of tbe original sufferers save bodies corporate could in tbe ordinary course of events have been living. In pursuance of another xirovision of tbe statute (§ 3), that tbe court “shall examine and determine tbe validity and amount of tbe claims,” “together with their present ownership, and if by assignee tbe date of tbe assignment, with tbe consideration paid tbere-for,” tbe court determined tbe international rights of tbe original sufferers to indemnity or redress as against France or tbe United States, and regarded tbe “present ownership” as lodged in tbe personal representative, who might maintain a suit at law if tbe claim were an ordinary chose in action; i. e., in the administrator of the original sufferer, or in the administrator of an assignee where a claim was assigned, or in an assignee in bankruptcy, or in the receiver of a corporation.

Accordingly the court required no further evidence upon this point than proof of administration and proof of identity, i. e., that' the prosecuting claimant in fact represents the decedent whom he claims to represent. Whether he in fact also represents the descendants of the original sufferer, his collateral relations, his legatees, his creditors, or no living person whomsoever were questions which the court was not authorized under the original act to inquire into. Assignees were the only parties in interest that the court was directed to ascertain and report to Congress.

It was not supposed, or to be supposed that Congress would award money to administrators technically representing an estate, but in fact representing no living person legally or morally entitled to relief. To whom the money should go, if awarded by Congress, had to be a matter of future legislation.

Congress accordingly enacted, when the first appropriation was made for the payment of this class of claims:

“Provided, That in all cases where the original sufferers were adjudicated bankrupts the award 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 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.” (Act 3d March, 1891, 26 Stat. L., ch. 540, pp. 862, 908.)

The court has construed this to be general legislation, and has held that in all future reports to Congress only the acfininistrator who represents the next of kin of the original sufferer will be regarded as the party entitled to relief. (The Ship Concord, 27 C. Cls. R., 142.)

In the present case there are no next of kin. The proceedings were instituted by the administrator of the estate of the widow of the original sufferer, and he rests his right to prosecute upon the facts thatthelatter bequeathed all of his property to her, including “money to be recovered due me f that by the law of Maryland she took all of her deceased husband’s estate, real and personal, and that be, the administrator, represents her nephews and nieces. Another administrator, that of the estate of the.hnsband, the original sufferer, now comes in and asks to be substituted, with the consent of the first, as claimant. But he, in fact, represents no knoVn heir, descendant, or collateral relative.

There have been two instances where Congress has given relief to persons who were not next of kin.

The first of these was the case of a gift inter vivos, or of an assignment by the merchant owner of a cargo to the trustee of a widow and her daughter. The real consideration for the assignment was “love and affection borne to Mrs. and Miss Preble for acts of kindness shown the assignor in his old age.” (Ship Rosanna, Act 3d March, 1891.)

The second case was that of an administrator who had obtained an award by the Act 3d March, 1891 (26 Stat. L., 852), but could not obtain the certificate that he represented the next of kin, inasmuch as there were no blood relations of the original sufferer. The administrator had really prosecuted the claim for the benefit of his widow’s next of kin, the case being substantially like the present one. Congress thereupon enacted :

“ That the clause reading as follows : ‘'William Milligan, administrator of George Wattles, deceased, twenty-one twenty-one thousand eight hundred and thirty dollars, in the act making appropriations to supply deficiencies in the appropriations for the fiscal year ending June thirtieth, eighteen hundred and ninety-one, and for prior years, and for other purposes,’ passed March third, eighteen hundred and ninety-one (page nine hundred and four of volume twenty-six, United States Statutes at Large), be, and the same is hereby, amended so as to read as follows:
“‘William Mulligan, administrator of George Wattles, deceased, twenty-one thousand eight hundred and thirty dollars ; and the award in this case 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, or in the event the court shall find therewereno next of kin and that there is a widow, then that such widow is so represented. Ending June thirteenth, eighteen hundred and ninety-one, and for prior years, and for other purposes, to be paid to the person or persons entitled to recover and receive the same, to be ascertained by the Court of Claims upon sufficient evidence and certified to the Secretary of the Treasury.” Act 3d March. 1893 (Stat. L. p. 674).’

It must be conceded that in tiffs second instance Congress recognized other than, the blood relations of the original sufferer as entitled to relief. Nevertheless the provision in the act of 1891 restricting relief to the next of kin is general, and these two instances are special and exceptional. The court is of the opihion that the general provision of law must be maintained, and that an administrator should not be allowed to come in who, having neglected to institute proceedings within the jurisdictional period when he might have done so as a matter of right, does not now represent persons entitled to relief— that is to say, the next of kin of the original sufferer.

The order of the court is that the motion to substitute George W. Lockwood, administrator of John A. Dubernat, as claimant in the place of John L. Durkee, administrator of Louisa E. C. Durkee, be overruled, and that the case be reported to Congress.  