
    In the Matter of the Estate of Randolph M. Cooley Deceased.
    
      (Surrogate’s Court, Queens County,
    
    
      Filed March, 1888.)
    
    
      1 Assets—Money awarded by the Alabama Court op Olaimspor “indirect CLAIM ” UNDER ACT OP CONGRESS PASSED 1882.
    Where money was awarded, under the act of congress passed in 1882, hy the Alabama Court of Claims, on account of an “indirect claim” founded upon the payment of war premiums which had been paid for insurance against destruction by the Alabama and other Confederate cruisers, it is a gratuity to the claimerand cannot he reached by his creditors. (Following Taft v. Marsily, 13 N. Y. State Rep., 537.)
    2. Same—Not assets in the hands op administrator op claimant.
    Where such a fund has come into the hands of the administrator of the estate of a claimant it is not applicable to the payment of decedent’s debts, but belongs to the widow and children of decedent.
    3. Practice—Jurisdiction op surrogate’s court.
    A surrogate’s courtis one of limited jurisdiction, having only what power is given hy the express terms of the statute and some powers incidental thereto.
    4. Same—What does not give jurisdiction.
    The fact that, the administrator has received money belonging to the widow and children of decedent and is liable to them in an action for money had and received, does not give a surrogate’s court jurisdiction to make a decree directing the testator, to pay over the money which he has so received. Such a decree if made would he absolutely void.
    5 Same— Voluntary appearance op parties will not give jurisdiction.
    The voluntary appearance hy all the parties before the court on a final accounting of an administrator will not confer jurisdiction, if the court has no jurisdiction. Even an agreement of the parties would not confer power upon it.
    Special proceedings instituted to procure judicial settlement of the accounts of Johnathan D. Kittle as administrator ot the estate of Randolph M. Cooley, deceased. The tacts are stated in the opinion.
    
      De Witt, Lockman & De Witt, for administrator; T. M. Wyatt, for next of kin.
   Weller, S.

Two very grave questions are presented by this accounting, viz :

Fir si Whether or not the funds received hy the accounting administrator are assets of the decedent’s estate, and as such liable to be applied towards the payment of his debts, and

Second. Are the debts of decedent barred by the Statute af Limitations so as to prevent the holders from participation in the distribution of the money?

The decedent died in 1867, and letters of administrtion were issued to the widow of and Jonathan G. Kittle, a creditor of the decedent. On January 12, 1869, all the assets of "the estate having been converted into money, a final accounting was had before the surrogate, showing $6.670 on hand, and on January 26, 1869, a decree was duly made and entered by the surrogate, directing the money to be distributed to the creditors, pro rata. Thirty-five different claims were established before the surrogate (including one in favor of the administrator for $43,000), amounting in the aggregate to $49,000, and the dividend declared thereupon was eleven and one-sixth per cent on a dollar. This exhausted all the assets of the estate then in existence. But it appears that the decedent in his lifetime, along with many others, had filed with the United States government claims against England for a large amount, for increased or war premiums, which as a merchant he had had to pay out, to insure his freight and cargoes against risk of capture and destruction by the Alabama and other confederate cruisers.

These claims were denominated “indirect claims,” and were, along with other claims known as the “ direct claims,” presented under a treaty between the United States and England, to the court of arbitration, provided for in the treaty, and that tribunal sustained the'“ direct claims,” but threw out the “ indirect claims,” holding that they were not legitimate demands nor valid claims against England.

All the claims were presented by the United States as trustee for the different parties, and the United States government was in form the plaintiff, while England was defendant, and the court, while deciding against the “indirect claims,” awarded to the United States government a gross sum in payment of the “direct claims.” After receiving the award, the government created a court called the Alabama court of claims and empowered it to distribute the money so recovered to the various holders of the “ direct claim.” This was done, and after paying them all in full, a large unexpended balance was left over in the hands of the United States government, where it remained for some time. Finally, in 1882, congress passed a law reorganizing the Alabama court of claims, and authorizing it to distribute the balance of the award unexpended to the various persons; who had been compelled to pay the large increased war premiums, for insurance. And by the award of that court, the sum of $6,409.87 has come into the hands of the administrator, Kittle, which he holds for distribution.

The question now is, was this money assets of decedent’s estate?

The claim of Cooley, when filed with the United States government, was undoubtedly an asset, unliquidated, dubious and uncertain, but still an asset. It was not a claim against the United States government, but a claim against England, and when Cooley filed it with the United States government, the government became hi's agent and trustee to prosecute and collect the demand. The United States as trustee presented the claim to the tribunal, provided for its settlement and adjustment, and it was thrown out and adjudged to be no claim, and from that time it ceased to be a claim, or an asset of any kind. Now did the act of congress of 1882, reorganizing the Alabama court, and empowering it to award the unexpended balance to the various persons who had incurred the increased expense of war premiums for insurance, revive it- as. a claim and an asset of decedent’s estate?

The money was not held by the United States government to be applied to the payment of such claims; on the contrary, they had been adjudged by the only tribunal having jurisdiction of the subject to be no claim. It is of no consequence to whom this unexpended balance did belong, so long as it did not morally, legally or equitably belong to these “indirect claimants.” The United States government took the responsibility of giving it to them, but because the money came through the Geneva award it did not make it any more applicable to the reimbursement of these persons who had been compelled to pay increased war premiums than the surplus or any other sum in the treasury. It is precisely the same as though the United States government had donated a sum of money to persons who had suffered by reason of the war when no legal, equitable or moral right existed in favor of the recipients.

It was simply a bounty, a donum, gratuitum, to those who perhaps had suffered during the war, but who had no claim, either legal or equitable, upon anybody for indemnification. Now, should the bounty generously given by the government to these sufferers be considered assets, and (before it ever reaches the object of the bounty or his family) liable to be appropriated in the payment of his debts ?

This question is novel, but ir is not without authority bear-] ing upon the subject. The superior court of'Baltimore city has in a recent case (Ahrens v. Brooks) held these “indirect claims” not to be assets, and that the money received on account of them did not belong to an assignee in bankruptcy. And the general term in New York city, in another recent case, held that the money received on account of these “indirect claims” belonged to the bankrupt and not to his assignee in bankruptcy; that it was not an asset, but a bounty or gift to the bankrupt, and he alone was entitled to it. See Taft v. Marsily, 13 N. Y. State Rep., 537.

The case of Gillan v. Gillan (55 Pa., 430) seems to be on all fours with this case. There the decedent owned a house in Chambersburgh, Pennsylvania, upon which several claims or liens had been filed by different creditors, and an armed Confederate force came into the town, destroying the building, along with a large number of others belonging to different people. Subsequently the state made a donation or appropriation to indemnify the sufferers by that raid, and the proportionate share of the decedent having come into the hands of the administrator, the question was to whom did the money belong. An agreed case was made up, in which all the parties appeared and argued the question fully before the supreme court of Pennsylvania in banc, and that tribunal held the money did not belong to the administrators or creditors, but belonged to the widow and children.

The learned judge who gave the opinion, after declaring it to be a pure gratuity, said: “It would be a novel mode of rewarding personal merit or administering personal relief in such cases to appropriate the bounty of the party to be compensated or idemnified.” I can see no difference in principle between that case and the case now before the court, and therefore hold that the funds in the hands of the adminstrator, Kittle, are not applicable to the payment of decedent’s debts, but belong to the widow and children of decedent.

The fact that it was a bounty or donation determines the direction the fund must take.

But, although I may be of the opinion that the funds belong to the decedent’s wife and children, it does not follow that I can make a decree ordering the same to be paid over to them. If I am correct in holding the funds not to be assets of decedent’s estate, then it follows that the administrator has received money belonging to the widow and children of decedent and is liable to them in an action for money had and received, a purely common law action of which a surrogate’s court has no jurisdiction. A decree directing the administrator to nay over money which he had in some way received, and which belonged to another, would be absolutely void, for in effect it would be determining private controversies between persons in their individual capacity. See Bevan v. Cooper, 72 N. Y., 317; Tucker v. Tucker, 4 Keyes, 136; Curtis v. Stilwell, 32 Barb., 354.

A surrogate’s court is one of limited jurisdiction, having only what is given by the express terms of the statute, and' some powers incidental thereto (Sipperly v. Baucus, 24 N. Y., 46). In Stilwell v. Carpenter (59 N. Y., 414), the court of appeals declared the general powers of a court of equity do not pertain to a surrogate’s court, and decided that that court could not set off mutual judgments.

That all parties are voluntarily before the court on a final accounting of an administrator, will not confer jurisdiction. If the court has no jurisdiction, even an agreement of the parties would not confer the power upon it. See Tucker v. Tucker, 4 Abb. Ct. App. Dec., 428. The widow and children must be left to such remedies against the administrator as the law affords them.

This disposition of the case makes it unnecessary to discuss the question of the application of the statute of limitations.  