
    LETITIA TYLER SEMPLE v. THE UNITED STATES.
    [No. 14360.
    Decided May 6, 1889.]
    
      On the Proofs.
    
    A purser iu the Navy serves in tbe war with. Mexico. During his life-time he does not receive the three months’ extra pay given by the Acts 1848, 1879. Subsequent to his death an account is stated by the accounting officers, whereby a balance appears due from him to the Government. The defendants seek to set this off against the widow’s claim for three months’ ext-ra pay.
    I. The three months’ extra pay given to officers and soldiers who served in the war with Mexico by the Aot 19th July, 1848 (9 Stat. L., 248, § 5), is in fact and in law a gratuity, constituting no vested right until reduced to possession.
    II. By the death of the officer or soldier entitled to extra pay the gift neither lapses nor becomes an asset of his estate; neither can it be made the subject of attachment, execution, assignment, or testamentary bequest.
    ill. A debt due from an officer who served in the war with Mexico to the Government is not a subject of set-off against his widow’s right to the three months’extra pay; and where the debt was not an overpayment of pay it can not be pleaded aé a payment to him.
    
      The Reporters’ statement of tbe case :
    The following are the facts of this case as found by the court:
    I. James A. Semple served as purser in the Navy on board of the U. S. sloop-of-war John Adams, in the prosecution of the war with Mexico, from October 28,1847, to May LO, 1848, when he was detached by order of the Navy Department. During his life-time he did not receive the three months’ extra pay given to certain persons who served in the Mexican war by the Act 19th July, 1848 (9 Stat. L., 248, § 5). He died December 26, 1883, leaving the claimant, his widow, surviving him.
    II. Subsequent to his death an account was stated by the accounting officers of the Treasury whereby a balance appeared due from Mr. Semple to the United States to an amount exceeding that of the three months’ extra pay. The nature of this indebtedness does not appear.
    III. Mr. Semple’s pay at the time when he was detached from Ms vessel, as set forth in the first finding, was $166.66 per month.
    
      Mr. A. M. McBlair for the claimant:
    The Government is in no better position than any other creditor of the officer, and can not be permitted to confiscate his widow’s property to pay his alleged indebtedness. This gratuity being in no sense part of his estate, having never been reduced into possession by him daring his life-time, the very power which now seeks to retain it having denied his right to receive it, then it therefore follows that it is in no way liable for his debts. Were it part of his estate it would go to his personal representative, and the proper authorities should proceed to'legally prove and establish any indebtedness due by him in the probate court as in the case of any other creditor; but it is plain that the sum here claimed has nothing to do with anything due by the officer, either to the Government or a private individual. The Government had a further remedy against the bondsmen of the officer, he having been a purser and heavily bonded, and there seems to have been no efféct ever made to recover from them.
    It therefore follows that Congress having seen fit to direct how this money shall be paid, and having named its recipients in their respective order of succession, the claimant, being one of a class named, is entitled to recover the amount here sued for, irrespective of any indebtedness of her late husband to the defendant, and she should, therefore, receive $500, for which she asks judgment.
    
      Mr. Felix Brmnigan (with whom was Mr. Assistant Attorney-General Howard) for the defendants:
    When Congress intends to make a grant of money which shall not be liable to be set off as a credit to the grantee, special provision is made for the purpose as in the case of a pension (Rev. Stats., § 4734). Similarly, when Congress intends to make payments in any desired order of descent to personal representatives, different from that prescribed in the laws of the States, appropriate enactment is made for the purpose; e. g., section 49'of the Revised Statutes, which provides that the salary of a deceased member of Congress shall be paid to his widow, or if there be no widow, to his heirs at law. If, in such case the deceased member of Congress be indebted to the United States, and there be no constitutional obstacle against offset (Art. I, sec. 6, cl. 1), what legal objection could there be made against pleading a set-off for the debt in a suit for the salary by the heirs at law or the-widow? Yet here certainly is as strong a case of “grant” to the widow and the heirs at law as in the case at bar. In fact, a stronger case, as it is doubtful whether an offset could be made against the salary of a member of Congress during his incumbency of office.
    The part of the act of 1848 on which this case depends was merely intended to regulate the right of representation in respect to the collection of this part of the estate of the deceased officer. Its effect was to make the three months’ pay an inheritance to the widow. She takes it in her representative capacity and succeeds to the rights of the person represented; and also to his liabilities, since there is no statutory provision exempting her from such liabilities. [Hunt v. Hunt, 37 Maine R., 344.)
   Nott, J.,

delivered the opinion of the court:

The defendants rely on a balance appearing upon the books of the Treasury as a defense to the claim of his widow for the three months’ extra pay given by the Act 19th July, 1848 (9 Stat. L., 248, § 5). The nature of this indebtedness does not appear, nor is it pleaded either as a set-off or payment. But inasmuch as the facts are admitted by the brief of the claimant, the court will proceed to pass upon the question of law involved.

That question is whether, the widow can maintain an action in her own right or only as a representative of her husband’s estate.

The three months’ extra pay was in no manner a legal obligation. It was more in the nature of a gift inter vivos. Congress had power at any time before payment to revoke it, and were free to attach to it such conditions as might be deemed advisable, or to devise it to such other persons as might be thought most deserving of it. It was in fact and in law a gratuity given as a reward for faithful service, aud the present question is to whom was it given, whether to the soldier in his own right aud absolutely so as to form an asset of bis estate, or to the persons named in the act ?

Primarily it is to go to the soldier. “ If he died without receiving the same,” it is to go to his widow; if there be no widow, it is to go to his children; if there be no child, it is to go to his father and mother; if there be no father or mother, it is to go to his brothers and sisters. To no one beyond this list of persons does the statute assume to make a'grant. The next of kin after brother and sisters are not provided for. Even grandchildren in the line of direct descent are apparently excluded. Of executors, administrators, legatees, or creditors there is no mention.

These provisions of the original act show that Congress guarded in unmistakable terms on the one hand against these gifts lapsing with the death of the officers or soldiers for whom they were primarily intended, and on the other against their falling into the hands of administrators and becoming assets for the benefit of creditors. If the widow is merely a representative entitled to sue in the stead of an administrator, so must be the children, or the parents, or the brothers and sisters. Moreover, if any of these parties recover the money only as representatives of the deceased soldier, they are bound to account for it to somebody and somewhere; and who the beneficiaries will be and in what jurisdiction they can be made to account, no indication is given in the law. Finally, if Congress intended these gifts to be absolute and irrevocable, constituting vested rights in the soldiers as completely as if they were reduced to possession, then it is manifest that, though a soldier die leaving neither wife nor child, father nor mother, brother nor sister, but creditors only, the gifts will be a chose in action forming a part of his estate and becoming an asset in the bauds of his administrator.

The court is of the opinion that an officer or soldier, dying before he receives the three months’ extra pay, has, at the time of his death, no legal right which can be the subject of attachment, execution, assignment, or testamentary bequest. When he dies his inchoate right expires with him, and the privilege of seeking the gift passes to the next person named in the statute. When all of these have died the privilege has passed away with them and the right to seek the gift has been extinguished.

It is possible that if the officer in this case had made a demand on the Treasury in his life-time, and the claim had been reduced to the tangible form of a warrant or draft in his favor, the accounting officers, at the moment of payment, might have asserted the Government’s right of set-off, under the Revised Statutes, § 1766. But it is conceded that the officer did not do so. He died without having exercised his privilege, which passed eo instanti to his widow, and the right to receive the gratuity became, during her life, hers.

It does not appear that Mr. Semple had overdrawn his pay as an officer in the Navy, nor does the nature of his alleged indebtedness to the Government appear. The account in the Treasury was stated against him after his death, and, consequently, when he was not here to explain or contest it. The balance appearing on the books of the Treasury may be a subject of set-off against his administrator as it might have been against him, but it does not follow that it is a subject of set-off against his widow. She is entitled by law to recover the three months’ extra.pay, if her husband “ died without receiving the same,” and the only indebtedness that can be set up against her demand is her own indebtedness to the defendants. The court is of the opinion that a debt of the husband to the Government is not a subject of set-off against the widow, and that where the debt was not an overpayment of pay, it can not be pleaded as a payment.

The judgment of the court is that the claimant recover the three months’ extra pay given to her by the statute, amounting to $500.  