
    Helen Aubert’s Administrator v. The United States.
    
      On the Proofs.
    
    
      ■Helen Aubert’s cotton is captured at Mobile in April, 1865. In August following she dies. Her husband is appointed administrator of her estate. The court find her to have been loyal. Two of her sons served in the rebel army; the other children gave no aid nor comfort to the rebellion. No proof is offered as to the loyalty of creditors or other distributees.
    
    When the loyal owner of captured or abandoned property dies subsequent to the capture, the only questions for the court to determine, under the “captured and abandoned property act,” (lá Stat. Lp. 820.) are the title and loyalty of the decedent. The title is continued by the administrator, and the loyalty of the distributees of the estate cannot be put in issue.
    Messrs. Hughes, DENVER and Peck for the claimant:
    When this cause was before the court at the last term, a doubt was intimated as to the action of the court in cases where the heirs of a decedent were not known to be loyal, and tbe judgment in favor of an administrator might innre to their benefit.
    By the laws of Alabama (see Revised Code, p. -,) property acquired by a married woman is held in her own right, and upon her death one-half is distributed to the surviving husband, and the other half to the other heirs.
    Mrs. Aubert left surviving her Marcus T. Aubert, her husband, and five children.
    It appears that Mr. Marcus T. Aubert was afflicted with a partial loss of his eyesight, and for the purpose of obtaining medical treatment went to Europe in the fall of 1860, and returned to New York city in the spring of 1863, and, on account of the war, remained in that city until after the capture of Mlobile by our forces. That he never gave any aid or comfort to the enemy is further established by the evidence.
    The same character is established for the daughters, Delphine and Oorinne.
    The younger son Oscar was a minor when the war commenced, and in the spring of 1861 was sent to France to prosecute his medical studies, and devoted his time to that object. Several witnesses testify to his having been out of the country, and in his own deposition he gives a very satisfactory account of his conduct during his residence .abroad, and fortifies his own statements with the evidence of diplomas awarded him by the Preparatory School of Medicine of Nantes, for a period including the whole war of the rebellion.
    The other two sons, Aristide and Felix, it is admitted, were in the confederate service, and did directly aid the rebellion.
    The act of March 12, 1863, was passed at the time when the success of the Union arms was at its lowest ebb. Two objects were intended — first, to reward those among the rebel population who had been true to the government, and also to induce the timid and neutral to withhold all voluntary aid from the usurpation then holding sway over them. To these parties Congress held out the inducement that if their property should be captured belli, the proceeds of it should be placed in the treasury, and after the close of the war should be repaid to them upon establishing the necessary facts before this court.
    The right to capture such property was not waived, but, on the contrary, was by implication asserted. The title to it acquired by the government was complete, and the owner was given in lieu of it a right of action for the proceeds, upon condition, however, that he should not give any aid to the rebellion.
    This was a vested right in the deceased. The contract between her and the government was complete; she performed the stipulated condition and thereby became a public creditor. The rebellion was suppressed, and if the claim had been at once presented it must have been allowed and paid prior to her death, which occurred in August, 1866.
    It is necessary to observe that this cotton was seized and sold during the lifetime of Mrs. Aubert. The money was in the treasury before her death, so that the administrator found no cotton, but only a right to the proceeds of certain cotton ; and this had become a vested right, which by the law devolved upon him. Is there anything in any act of Congress which forbids you to give judgment upon this right ?
    There are four propositions which cover this case, and each of them will be assented to by the court:
    1. The right to recover this fund was complete in Mrs. Aubert before her death.
    2. This is such a right as does not die with the party, but descends as a chose in action to the administrator.
    3. The right is vested in a person who is competent to prosecute his case in this court.
    4. The statutes are silent as to the forfeiture of any such right when once accrued, because the law of descent may throw the benefit of it upon some unworthy person.
    A rule which would forbid a recovery because one-fifth of the fund ■may pass into disloyal hands, would be harsh and inequitable; it would find no justification in the language of the act nor in any reasonable supposition as to the intention of Congress. The same consequences would result if the disloyal distributee were a creditor; a claim for $100,000 would be rejected because the deceased had left unpaid some trifling bill of a disloyal butcher or tailor.
    We have not alluded to the extreme and almost insurmountable difficulties which will attend you in attempting to ascertain the ultimate disposition of a judgment in favor of an administrator or an executor.
    Whether any of it will ever reach the heirs, how it will affect particular bequests and residuary legacies, &c., &c., and a hundred other intricate questions, must arise, which you have not fair opportunities to investigate.
    In this very case you would find it necessary to decide several questions which can only be properly decided by the court of probate— such as the solvency of the estate, the existence of debts, the nonexistence of a will, &c. It is perhaps unfortunate that this important principle arises for decision in the case of an estate so free from doubt and embarrassment as that of Mrs. Aubert. Bat the court can see without further discussion how fertile of controversy such a field of inquiry will prove to be.
    The Assistant Solicitor for the defendants:
    This case was submitted to the court at its last term, and it was remitted to the trial docket for additional evidence in regard to the participation in the rebellion of the distributees of the estate of Mrs. Aubert. This brief will therefore be directed to the consideration of the evidence adduced upon that question.
    - The question which this record presents is, whether a court can render a judgment in favor of those persons who have not given aid and comfort to the late rebellion, where they are found with those who have given such aid. By the common law, if any one of the persons who sued jointly were found to be not entitled to recover, then judgment went against all who were so joined. Can a different rule prevail here! Here the court has all the parties before it, and it is competent for it to determine the right or capacity of each one of those parties to maintain their action. If, upon an examination of the case, the evidence discloses the fact that either one of the parties to the record has given aid or comfort to the rebellion, the power of the court as to such claimant extends only to the dismissal of the petition. By the 12th section of the act of March 3, 1863, providing for the reorganization of the Court of Claims, the court was directed, whenever it appeared from the evidence that a claimant had given aid and comfort to the rebellion, to dismiss the petition. The interests of these parties are not severable but joint, and the failure of either of the petitioners to establish his right to a judgment results in the failure of all.
    
      Motion to substituto new parties for the claimant.
    
    The motion to make the heirs of Mrs. Aubert, or the distributees,, parties, is overruled; the motion to make Marcus T. Aubert, administrator of his wife, a party, is allowed, and the name of Henry T. Blod-get, administrator, is dismissed, and the case to stand Marcus Thomas Aubert, administrator of Helen Aubert, deceased.
    BY THE COURT.
    January 20, 1868.
   Loring, J.,

delivered the opinion of the court:

The petitioner, as administrator of Helen Aubert, claims of the United States the net proceeds of 142 bales of upland cotton.

And the court finds the facts to be—

That Helen Aubert was in April, 1865, the wife of Marcus Thomas Aubert, of Mobile, in the State of Alabama, and then owned and was possessed of 142 bales of upland cotton, her separate property, stored in said city of Mobile.

That shortly after the occupation of said city of Mobile by the army of the United States, in April, 1865, the said cotton was taken by the United States from the possession of said Helen Aubert and sold, and the net proceeds thereof, amounting to $26,731, paid into the treasury of the United States.

That the said Helen Aubert died in the month of August, in the year 1866, and until then was a loyal citizen of the United States, never having given aid or comfort to the rebellion.

That the petitioner was duly appointed administrator of her goods and estate under the laws of Alabama.

That the persons entitled, under the laws of Alabama, to the personal estate and effects of said Helen Aubert, as distributees thereof, are her husband, the said Marcus Thomas Aubert, in the proportion of one-half part, and their children Aristide L. Aubert, Felix H. Aubert, Corinne Aubert, Delphine Lacroix, and Oscar P. Aubert, in equal proportions in the remaining half part of said personal estate and effects.

That the said Aristide L. and Felix H. Aubert were in the military service of the confederates in the rebellion; that the said Marcus Thomas Aubert, Corinne Aubert, Delphine Lacroix, and Oscar P. Aubert, were and are loyal citizens of the United States, never having given aid or comfort to the rebellion.

It was objected on the part of the United States that two of the distributees of the property of Mrs. Aubert, viz : Aristide and Felix H. Aubert were engaged in the rebellion and rendered aid and comfort thereto in the military service of the confederates. But the evidence shows that when this cotton was captured it was the separate property of Mrs. Aubert, who was then living, so that the right of claim under the statute of 12th March, 1863, (12 Stat., 180,) then vested in her exclusively. And we are of opinion that on the facts of this case all we have to determine is her title at the time of her decease, which is continued and represented here by her administrator and makes his title to recover, wbicb is all that we decide in this ease on the facts shown and above stated.

And on the facts stated we are of opinion that the petitioner is entitled to recover of the United States the sum of $26,731 50, being the net proceeds of said 142 bales of cotton, at $188 25 per bale, for which sum judgment is rendered and will be certified for the petitioner..  