
    No. 10,356.
    
    Succession of Foucher de Circé.
    Opposition to Tableau of Distribution.
    A claim having been awarded by the Frencli-American Commission to the executor of a deceased French citizen, and the amount collected by the French government and paid to the dative testamentary executor in this State the legatees of the testator in tlie fund will share alike, as designated by the testator, although some of them are French citizens and others citizens of the United States.
    The legatees, French citizens, opposing the distribution, claim under the will alone, and therefore cannot ask that its disposition be changed so as to increase the amount given to them by the'testator.
    The Fronch-American Commission having decided it had jurisdiction of a claim presented by the executor of a deceased French citizen, its award upon the validity of the claim is final and conclusive; but it had no jurisdiction to pass upon the conflicting rights of parties to the fund awarded.
    The validity and amount of the claim being ascertained, and the amount paid to the party in whoso name it was presented and prosecuted, all conflicting rights of parties to the claim can be ascertained by the ordinary judicial tribunals. When paid to the executor of a deceased claimant it will be ordered distributed in the oourso of the administration of tlie succession, without reference to citizenship.
    
      APPEAL from tlie Civil District Court, for the Parish of Orleans. King, J.
    
      Henry Denis and Charles Carroll for Opponents and Appellees :
    •A treaty of tlie United States is tlie supreme law of tlie land, to wliicli State laws and State judges must yield obedience. Const, of U. S., Art. 6; Cooley, Const. Limit.» p. 14; 3 Dali. 237 ; 100 U. S. 483.
    The award of the commissioners, under a treaty of indemnity, settles two things only: first, the validity of the claim, and, secondly, the amount of the indemnity. It leaves open to the courts all right of conflicting claimants inter sese. 1 Peters, 193; 5 Peters, 675; 14 Peters, 95; 17 How., 612.
    
      Henry CMapella for tlie Dative Testanientary Executor and others, Appellants:
    1. When a judgment has once been signed by the judge, it should be interpreted by that court, as well as by all others, objectively; that is, it should be construed with reference to the pleadings and the subject-matter. Succession of Regan, 12 Ann. 156.
    It is onty when the terms of a judgment are of doubtful construction that resort may he had to the pleadings. 15 Ann. 223, 679; 16 Ann. 363; 4 L. 100; 10 Ann. 177; 1 Ann. 92; 1 Hennen, p. 728, Ho. 8.
    The pleadings, and not the points raised in argument, are to determine what was in controversy before a court. Saul vs. Creditors, 7 H. S. 432.
    All issues presented by the pleadings in a cause and on which evidence is introduced on trial will be considered as disposed of by a final judgment, though it he silent on one or more of the issues, unless a special reservation is made in the judgment. Yillars vs. Faivre, 36 Ann. 398; Rauxet vs. Rauxet, 38 Aim. 669.
    2. A party having set forth his demand by intervention, and his rights having been passed upon, is estopped from presenting a direct action on the same demand against the same party. In such a case the plea of res judicata will prevail. Shelton vs. Brown, 22 Ann. 162.
    The plea of res judicata is to be decided by reference to the matters put at issue by the pleadings. Bonvillain vs. Bourg, 16 Ann. 363.
    
      lies judicata cannot be defeated by making another party eo-dofendant with the one pleading it. This would be an easy mode of defeating the plea in all oases. Foss vs. Brentel, 14 Ann. 798.
    A judgment may sometimes operate as an estoppel against a party, against whom it cannot be technically pleaded as res judicata. 1 Hennen, p. 766, Ho: 42; See also Bigelow on Estoppel, pp. 8, 129, 45 and notes ; Freeman on Judgments. Sec. 249; 7 Wallace, 102, 622; 21 Ann, 355 ; 22 Ann. 81: 24 Ann. 33 ; 26 Ann. 236, 320, 419; 19 L. 318 ; 14 L. 135; 12 Ann. 197; 9 Ann. 208; 33 Ann. 581. ' .
    3. An award by a Board of Commissioners appointed under a treaty is only conclusive as to the liability of the government and its amount.
    The conflicting rights of claimants to the fund n left to the ordinary course of judicial proceedings in the established courts of justice.
    The right to indemnify for an unjust capture attaches to the ownership of the property itself. It may he assigned, it may be transmitted by inheritance or by will.
    Such a right to an indemnity is not a donation or gratuity. The present ownership of the claim, whether in assignees or personal representatives, or bona fide purchasers, need not he ascertained for the full exercise of their functions by such Board of Commissioners. Comegys re. Vasse, 1 Peters, 193, 220 (seo pp. 212. 210, 218). Emerson vs. Hall, 13 Peters, 109, 4U (sou pp. 412, 413). Phelps vs. McDonald, 99 U. K. 298, H seq.
    
    ■i. Einally, sen Burtlic. vs. Denis, 31 Nnn. 568.
    
      
      This case is pending before the Supreme Court of the United States on a Writ of Error.
    
   The oxiinion of the Court was delivered by

McEnery, J.

Louis Frederick, Marquis de Circe, a citizen of France, owned projierty in Louisiana, which was taken ]>ossession of bj’ the United States government during the Civil' War, and the xiroperty was used and damaged and some x>ortions destroyed. The Marquis de Circe died in 1869, and, by his will, instituted his widow his universal legatee. The widow, the Marquise de Circe, died in 1877, and in her will instituted her nieces and nephews her universal legatees.

Under the terms of the treaty between the United States and France, of July 15, 1880, the object and xmipose of which was the final award of all claims of the citizens of one nation against the other, for all acts of the civil and military authorities ■ during the Civil War between the States, and the Insurrection of the Commune, which injuriously affected the citizens of the other, the dative testamentary executor of the succession of the Marquis de Circe x>resented a memorial to the French-American Commission for the damage done to the x>roperty of the said Marquis de Circe in Louisiana.

The amount of $9200, with 5 per cent interest from April 1, 1865, was awarded on account of said claim to Arthur Denis, dative testamentary executor of L. F. Foucher de Circe. The net x>roceeds of this amount, $5280, the executor x>roposes to distribute ratably among the legatees under the will of the widow Foucher. The French government collected the claim and x>aid the amount to the executor, to be distributed. Two of the legatees under the will are French citizens, and the others citizens of the United States.

The, legatees who are citizens of Fra,nee claim the whole amount awarded by the commission, on the ground that' they' are French citizens, and only to them, as such, could the award have been made, thus excluding the other legatees from the bequest made by their common testator.

There can be no doubt but that the x>roper interpretation of the treaty is that awards could only be made to French citizens for damages inflicted by the civil and military authorities of the United States.

The award was made in favor of the rejn'esentative of a deceased French citizen, to his dative testamentary executor, and paid to him as such representative, and has been x>laced in his x>ossession as an asset, of said succession, to be disposed of in the course of its administration.

The decision of the commission, within the scope of its authority, is conclusive and binding, and it passed on the validity of the claim of a. French citizen and declared it to he valid. The Fren oil citizen had died and the award was made to his legal representative. There was no authority delegated to the commission to adjust all conflicting rights of different parties to the final award. It had determined that it had jurisdiction of the claim because presented l>y the legal representative of a deceased French citizen, and the “validity and amount of the claim being once ascertained by their award, the fund might well he permitted to pass into the hands of any claimant, and his own rights, as well as all others who asserted a title to the fund, he left to the ordinary course of judicial proceedings in the established courts where redress could he administered according to the nature and extent of the rights or equities of all the parties.” Comegys vs. Vasse, 12 Wheaton, 531.

If tlie award had been made in favor of the opponents only because they were French citizens, without an inquiry into the origin of their right, it ought, to have been paid directly to them by the French government, and the award ought to have been made specifically to them. '

The claim was a part of the estate of the Marquis de Circé, which passed by his will to his widow, and by her will to her legatees. She had a right to dispose of it as freely and fully as she could of any other item of her property which composed the mass of her estate and which she owned at the time of her death, to any person, or to more than one, in such proportions as she saw fit to designate, as she left neither ascendants or descendants.

All of her legatees come in for a part of her estate, as designated by her, and who claim participation in the distribution of the fund, under the will, as legatees, for their respective portions.

Claiming under the will of Madame de Circé, the court can not alter the intentions as expressed therein by Madame de Circé, and increase the share of some of the legatees to the exclusion of others.

In the absence of an express final and determinate decree of the commission as to whom the award was due, we can not review the judgment, of the commission and say that the. award was in favor of certain legatees, when the award was made in favor of the executor and the amount paid to him on account of the. succession. Why is the claim here on Ms account for distribution ?

If the amount- was due exclusively to the French legatees, we can not understand why the French government did not pay the claim to them directly.

It is in the hands of the executor as a part of the estate of Madame de Circé, and the funds must be shared under the terms of her will.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and the opposition dismissed at opponents’ costs and that the tableau of distribution be homologated according to the classification therein.

Dissenting Opinion.

Fenner, J.

Considering:

1. That the money to be distributed was collected under a treaty between the United States and France;

2. That under the terms of the treaty as interpreted by the commission organized under it, neither country could recover from the other any award except where the actual claimants, by whatever title, whether by descent, devise or conveyance, were, at the date of the award, citizens of the country recovering;

3. That, as decided by the Supreme Court of the United States, the decision of the commission settles nothing but the amount and validity of the claim, as between the two Nations, and leaves open the question as to what parties are actually entitled to claim the benefit of the award;

4. That evidence properly received shows that the opponents were tho only French citizens interested in the claim, that the claim, to the extent of the interest of the American co-legatees, was substantially abandoned by their own counsel, and that the amount awarded was really only that proportion of the total claim which fell to these opponents ;

5. That the executor prosecuted the claim and received this fund, not as executor simply, but as attorney in fact, of aE the legatees, including the opponents, and is bound to pay it to the parties legaEy entitled and for whose benefit the award was made, who are fully proved to be the opponents herein.

I dissent from the opinion and decree and think the judgment appealed from should be affirmed.

Concurring Opinion.

Watkins, J.

On making an independent examination of this case, I feel satisfied that the opinion of the court is correct.

It appears to my mind clear that the claim for the award was made originally in the name and for the account of Marquis Fourcher de Circé; that he made a wülinstituting his wife his universal legatee and died; that his widow succeeded to all the rights of her deceased husband, and made a will instituting her nephews and nieces universal legatees in equal amounts. She died, and her executor was made party to the proceedings before the commission, and subsequently the opponents made themselves parties thereto, and joined the executor in virtue of their rights as legatees.

Tire commission made an award in general terms, not designating the names of the beneficiaries. The award was paid to the French Government and it transmitted same to Arthur Denis, executor. This, he proposed to distribute among all the legatees ratably, under the terms of the will. Opponents set up claim to the whole in virtue of their being French citizens, as well as legatees. They do not claim as simple heirs, and sue for a fund in the hands of a stranger, but appear in the succession of Mrs. Foucher de Circé, and claim as legatees, the whole sum it bring in excess of tlie share allotted to them.

We must of necessity treat tliis fund as tlie property of Mrs. Foucher’s succession and not that of opponents. They being collaterals had no rights except under the will of Mrs. Foucher. The whole record furnishes ample proof of this, and I concur in the majority opinion of the court.  