Nutt v. Forsythe

• Decision Date: 28 March 1904
• Citation: 36 So. 247,84 Miss. 211
• Court: Mississippi Supreme Court
• Parties: JOHN K. NUTT, ADMINISTRATOR, ET AL., v. ELIZABETH A. FORSYTHE ET AL. JOHN K. NUTT, ADMINISTRATOR, ET AL., v. GERARD BRANDON, ADMINISTRATOR, ET AL. JOHN K. NUTT, ADMINISTRATOR, ET AL., v. PATRICK HENRY, EXECUTOR, ET AL. THREE CASES

36 So. 247

84 Miss. 211

JOHN K. NUTT, ADMINISTRATOR, ET AL., v. ELIZABETH A. FORSYTHE ET AL. JOHN K. NUTT, ADMINISTRATOR, ET AL., v. GERARD BRANDON, ADMINISTRATOR, ET AL. JOHN K. NUTT, ADMINISTRATOR, ET AL., v. PATRICK HENRY, EXECUTOR, ET AL. THREE CASES

Supreme Court of Mississippi

March 28, 1904

FROM the chancery court of Adams county. HON. WILLIAM P. S VENTRESS, Chancellor.

In these cases the appellees--Mrs. Forsythe et al.; Brandon administrator, et al.; and Henry, executor, et al respectively--were petitioners. In each case the chancery court was asked to require the appellant, John K. Nutt administrator, etc., to recognize the petitioners as distributees of the estate of which he was administrator, and to enforce distribution. From a decree in each case in favor of the respective appellees, petitioners, and complainants the administrator, Nutt, and others, appellants in each case, appealed to the supreme court. The appellants other than John K. Nutt, administrator, were the living heirs of Haller Nutt, deceased. The facts are stated in the opinion of the court.

Affirmed.

Percy & Campbell, for appellant, Nutt, administrator, in each of the cases.

A claim having no foundation in law, but depending entirely upon the generosity of the government, cannot be assigned. It does not go to the administrator as assets. It does not descend to the heir. If allowed by the government and appropriation is made therefor, it is a mere gratuity or donation. Emerson's Heirs v. Hall, 13 Pet., 409; Blagge v. Balch, 162 U. S. R., 439; Thomas W. Campbell, Assignee, v. U. S.Ct. Cls. (decided November 20, 1893); Heard v. Sturgis, 146 Mass. 545; Taft v. Marisly, 120 N.Y. 474; Brooks v. Ahrens, 68 Md. 212; Kingsbury v. Mattocks, 81 Me. 310.

In Comeygs v. Vasse, 1 Pet., 196, the claim was on account of insurance premiums which had been paid on vessels that were illegally captured by the Spanish government, and the claim was held to be assignable; in Phelps v. McDonald, 99 U. S. R., 298, the claim was on account of cotton belonging to a British subject, which he had purchased under permits from the President of the United States and Secretary of the Treasury, and which was destroyed by the Federal army during the civil war, and the claim was held to be assignable; and in Williams v. Heard, 140 U. S. R., 529, the claim was for insurance premiums paid on vessels which had been destroyed by the Alabama and other Confederate cruisers sailing from British ports, and the claim was held to be assignable; but the claims in these three eases were governed by principles of international law, and are differentiated from the claim in controversy, as will be seen by careful reading of them.

In Emerson's Heirs v. Hall, ubi supra, the court in commenting upon Comegys v. Vasse, said, "By the law of nations Spain was bound to indemnify the owners of foreign vessels, which had been illegally captured and condemned under her authority;" and the cases of Phelps v. McDonald, and Williams v. Heard, ubi supra, are based upon Comegys v. Vasse. In Milnor v. Metz, 16 Pet., 221, the claim was for extra services rendered by the gauger at the port of Philadelphia, under the act of Congress of 1836, for which no fees were prescribed, and the claim was held to be assignable; but, as shown in that case, the services performed by the gauger were at the instance of the government, and were necessary to execute the act of 1836; and in Erwin v. United States, 97 U. S. R., 392, the claim was for cotton which had been captured by the Federal authorities during the civil war, and which had been sold and the proceeds paid into the treasury of the United States, and the claim was held to be assignable; but that claim arose under the Captured and Abandoned Property Act of 1863, which gave the right and prescribed the remedy to be reimbursed for such property.

These are the only cases that have come under our observation which seemed to justify appellees' contention that the claim in controversy was assignable; but, as stated, the claims in the first three of these cases were governed by principles of international law, and the claims in the last two of these cases were based on existing statutes, and all of them were legal claims.

A claim for property, which was enemy's property, in enemy's territory, and was taken by military authorities in the exercise of the lawful right of a belligerent, is not a claim possessing an attribute of property, but it is like a pension claim, personal, and dependent upon the individual loyalty of the individual sufferer and the clemency of Congress. Such was the claim in controversy, it did not possess an attribute of property. Its consideration by the court of claims was on account of the personal status of Haller Nutt, the owner, as being loyal to the United States throughout the civil war; and when finally allowed by Congress, it was done as a mere gratuity, on account of his loyalty, and not as a property right.

Brown & Martin, for appellants, in each of the cases, Calvin R. Nutt, Julia W. Nutt, and Lillie Nutt Ward, living heirs of Haller Nutt, deceased.

Counsel made the same points as preceding counsel, and cite the following authorities:

Comegys v. Vasse, 1 Pet., 193; Emerson v. Hall, 13 Pet., 409; Ib., 10 L.Ed. 223; Erwin v. United States, 97 U.S. 392; Ib., 24 L.Ed. 1065; Williams v. Heard, 140 U.S. 529; Ib., 35 L. ed., 550; Blagge v. Balch, 162 U.S. 439; Ib., 40 L.Ed. 1032; Briggs v. Walker, 171 U.S. 466; Ib., 43 L.Ed. 243; Price v. Forrest, 173 U.S. 410; Ib., 43 L.Ed. 749; Campbell, Assignee, v. United States (decided by the court of claims on November 20, 1893); Phelps v. McDonald, 99 U.S. 298; McKay's Case, 27 Ct. Cls. R., 442; 13 Ib., 241; Dockery's Case, 26 Ct. Cls. R., 148; Heard v. Sturgis, 146 Mass. 545; Taft v. Marisly, 120 N.Y. 474; Brooks v. Ahrens, 68 Md. 212; Kingsbury v. Mattocks, 81 Me. 310; Estate of Moore, 26 Ct. Cls. R., 254; Supplement to Revised Statutes of United States, vol. 1 (2d ed.), p. 403; 16 Am. & Eng. Ency. Law (2d ed.), 1146-1147 and authorities cited in note 1, p. 1147; 2 Am. & Eng. Ency. Law, 87.

Reed & Brandon, for the appellees, Forsythe et al., and Brandon, administrator.

Counsel cite the following cases in support of the decree of the court below:

22 U. S. Statutes at Large, 88; 22 Statutes at Large, 485; 24 Statutes at Large, 505; Chap. 887, p. 207, Statutes at Large 1901-02; Genesis, Chap. 48, p. 22; Genesis, Chap. 15; Plutarch in vita Solon; Roman 12 tables; Inst. 2, 22, 1; 4 Kent, 502 and note, 503, 504; 2 Black. Com., 490-492; Maine Ancient Law, 126; 1 Williams Ex., p. 6, note 3; Erwin v. United States, 97 U.S. 393; Jarman on Wills, p. 40; Dowell v. Cadwell, 4 Saw., 228 (1877); 131 Mass. 521; U. S. Statutes at Large 1901-02, Chap. 887, p. 218; 26 U. S. Statutes at Large, 862; Blagge v. Balch, 162 U.S. 439; Emerson v. Hall, 13 Pet., 409; 6 Statutes at Large, 464; 1 Bouvier's Law Dic., 830; 1 Kent Com., 92; Military Laws of the U. S. 1897, 779; Hague Convention War on Land, U. S. Statutes 1901-02, p. 48; Dow v. Johnson, 100 U.S. 158; 2 Kent, 338; Mitchell v. Harmony, 13 Howard, 115; United States v. Klein, 13 Wallace, 136; United States v. Alexander, 2 Wall., 404-423; Comegys v. Vasse, 1 Pet., 193; Williams v. Heard, 140 U.S. 529; Comegys v. Vasse, 1 Pet., 216; Phelps v. McDonald, 99 U.S. 298; Buchanan v. Lawson, 109 U.S. 659; 3 S.Ct. 479; United States v. Weld, 127 U.S. 51; 8 S.Ct. 1000; Price v. Forrest, 173 U.S. 410, 422; Briggs v. Walker, 171 U.S. 466; Butler v. Gorely, 146 U.S. 309; Leffingwell's Appeal, 62 Conn. 361 (25 Atlantic, 455); In re Banks Will, 87 Maryland, 442 (40 Atlantic Rep., 274); Jernegan v. Osborn, 155 Mass. 210, 29 N.E. 521; Stanly v. Swally, 140 U.S. 517; 147 U.S. 517; 163 U.S. 427; Maitland v. Grissinger, 1 Wood. (Pa.), 294; 8 B. Mon. (Ky.), 165; Rogers v. Kennard, 82 Tex. 58; Merriweather v. Herran, 2 Wash. Ter., 58; Burch v. McDaniell, 33 Tex. 705; Goldsmith v. Herndon, 54 Tex. 30; Lyne v. Sanford, 27 Am. St. Rep., 852; 44 S.W. 1002; Lang v. Morey, 40 Minn. 396; 12 Am. St. Rep., 748; Pendleton v. Shaw, 44 S.W. 527; State v. Zance, also 18 Tex. 101; 21 Tex. 404; 46 Tex. 345; 51 Tex. 97, and 20 Pickering, 67; 65 Vt. 84; 2 Woodward, 259; 40 Maine, 197; 78 Maine, 460; 79 Maine, 234; United States v. Realty Co., 163 U.S. 427; Barrow v. Milliken, 74 F. 615; 41 U. S. Ap., 332; United States v. Weld, 127 U.S. 51; United States v. Borcherling, 185 U.S. 223; Vaugh v. Northrot, 15 Pet., 1; Walker v. United States, 34 Ct. Cls. R., 345; Van Waggener, Administrator, v. United States, 31 Ct. Cls. R., 175; Lynch, Administrator, v. United States, 31 Ct. Cls. R., 62; Labadie, Administrator, v. United States, 32 Ct. Cls. R., 368; Sample's Case, 24 C. C. R., 422; Durke's Case, 28 C. C. R., 326; Ingraham's Case, 32 Ct. Cls. R., 147; Stovall v. United States, 26 Ct. Cls. R., 226; Heffleblower v. United States, 21 Ct. Cls. R., 228; Heard v. Sturgess, 146 Mass. 454; Littleton, Sec. 337; Overton v. Sydall, Popham, 120, 121; Boyer v. Rivet, 3 Bulstrode, 317, 321; Bain v. Cooper, 1 Dowling Pr. (N. S.), 11, 14; Green v. Elkins, 2 Atkin, 473, 476; Duncan v. United States, 18 Ct. Cls. R., 230; Anderson v. United States, 9 Wall., 56.

Henry & Scudder, for appellee, Henry, executor.

Counsel cite the following authorities in support of the decree of the court below:

Meade v. United States, 2 Ct. Cls. R., 224; Comegys v. Vasse, 1 Pet., 195; Erwin v. United States, 97 U.S. 392; Milnor v. Metz, 16 Pet., 221; Briggs v Walker, 171 U.S. 466; Grant v. Rodwell, 78 Me. 460; Pierce v. Stidworthy, 79 Me. 234; 3 L. R. A., 462, note; Green v. Ekins, 2 Atk., 473, 476; Williams v. Heard, 140 U.S. 529; Emerson v. Hall, 13 Pet., 409; Price v. Forrest, 173 U.S. 140; Blagge v. Balch, 162 U.S. 439; 27 Am....