
    No. 11,899.
    Succession of Michael T. Mulledy.
    Congress appropriated five thousand dollars to the heirs and legal representatives of one of the victims of the Ford Theatre disaster.
    It does not go to the administrator, as assets of his succession, and is not imputable to the payment of his debts.
    The government having thoughtproper to make a grant of an amount to the heirs of one of the victims, they receive it as a gift, a bounty.
    APPEAL from the Oivil District Court for the parish of Orleans. Bightor, J.
    
    
      Louque & Pomes for Opponent, and James Timony for Administrator, Appellees.
    
      W. 8. Benediet for Opponent, Appellant.
    Argued and submitted November 23, 1895.
    Opinion handed down December 2, 1895.
    On Motion to Dismiss.
   The opinion of the court was delivered by

Breaux, J.

The late Michael T. Muliedy, domiciled in New Orleans, was a victim of the Ford Theatre disaster in Washington.

Congress appropriated five thousand dollars to his heirs and legal representatives. His sister, Kate Muliedy, obtained letters of administration of the succession; an inventory was taken, upon which this amount, the only asset he. left, was carried.

In her account of administration she credits herself with one-half of the amount and her brother the other as the next of kin.

Maurice Hart, one of the creditors of the late Michael T. Mulledy, opposed the proposed distribution on the ground that the fund was the property of the deceased and liable to seizure for his debts.

This opposition was dismissed.

From the judgment of dismissal he appeals.

There was another opposition filed in the lower court by the heirs of a sister, deceased, of the late Michael T. Mulledy, claiming one-third of the amount to be distributed. They recovered judgment for the amount of one-third of the five thousand dollars.

Before this court the appellee moves to dismiss the appeal on the ground that the court is without jurisdiction ratione materise — the amount of appellant’s claim being eight hundred and one dollars with interest.

The Constitution vests this court with jurisdiction of all eases in which the amount to be distributed exceeds two thousand dollars.

Ordinarily, the opposition will prevent a distribution of an amount sufficient to pay the judgment in case of judgment for the opponent, and no more need be withheld for the purpose.

Here the whole amount is involved. If opponent’s claim be allowed it will necessarily change the title, the amount carried in the account of the administratrix will have to be settled as an asset of the succession and will not be subject to the claim of the next of kin in their own right.

It is manifest that the controversy involves the whole amount- to be distributed and not merely the claim of the opponent.

Where an opposition affects the whole amount and gives good cause to withhold the distribution of amount exceeding two thousand dollars this court has jurisdiction.

On the Merits.

The appellant urges that the fund having been inventoried as the property of the succession of Mulledy, and notice of the filing of her account as administratrix having been given to the creditors of his succession, she is as. an heir concluded and can not claim the amount in her own right to the exclusion of the succession of her late brother, Michael T. Mulledy.

There was nothing in these proceedings which operated as a divestiture of title. In her account she and her co-heir claimed the property. Previously there was no abandonment of any right.

The donation was to the heirs and not to the succession of the deceased. It was an act of generosity over which the government had absolute control.

A} similar question was decided in Emerson’s Heirs vs. Hall, 14 La, 1. This court, on the ground that the ancestor had rendered meritorious services to the government, held that he held an equitable claim, and that the appropriation made was liable for the debts of the deceased.

This case was taken by writ of error to the Supreme Court of the United States, and the judgment of this court was reversed.

With great clearness it was said in that case: Had Emerson become insolvent and made an assignment, would this claim, if it may be called a claim, have passed to his assignees? We think clearly it would not. Under such an assignment what could have passed? The claim is a nonentity. Neither in law or in equity has it any existence. * * * It is true remuneration can not be recovered against the government by action at law. A claim having no foundation in law, but depending entirely upon the generosity of the government, constitutes no basis for the action. It can not be assigned.

$ $ $ $ $ * * jjs

“In the present case the government might have directed the money to be paid to the creditors of Emerson, or to any part of his heirs. Being the donor, it could, in the exercise of its discretion, make such distribution or application of its bounty as circumstances might require.”

Here, as in the case which we quote, the money was to be paid to the legal representative.

The interpretation given by the court of lase resort to a statute of the United States, in a well reasoned case in reversing a decision of this court, is authoritative.

The judgment is therefore affirmed.  