# Burthe v. Denis

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United States Supreme Court
133 U.S. 514
Burthe v. Denis
In January, 1880, a convention was concluded between the United States and France, (21 St. p. 16, art. 1,) by which it was agreed that 'all claims on the part of corporations, companies, or private individuals, citizens of the United States, upon the government of France, arising out of acts committed against the persons or property of citizens of the United States not in the service of the enemies of France, or voluntarily giving aid and comfort to the same, by the French civil or military authorities, upon the high seas, or within the territory of France, its colonies and dependencies, during the late war between France and Mexico, or during the war of 1870-71, between France and Germany, and the subsequent civil disturbances known as the 'Insurrection of the Commune;' and, on the other hand, all claims on the part of corporations, companies, or private individuals, citizens of France, upon the government of the United States, arising out of acts committed against the persons or property of citizens of France not in the service of the States, or voluntarily giving aid and comfort to the same, by the civil or military authorities of the government of the United States, upon the high seas, or within the territorial jurisdiction of the United States, during the period comprised between the thirteenth day of April, eighteen hundred and sixty-one, and the twentieth day of August, eighteen hundred and sixty-six,-shall be referred to three commissioners, one of whom shall be named by the president of the United States, and one by the French government, and the third by his majesty the emperor of Brazil.' The convention also provided that the commission thus constituted should be competent and obliged to examine and decide upon all claims of the above character presented to them by the citizens of either country, except such as had been already diplomatically, judicially, or otherwise, by competent authorities, previously disposed of by either government, but that no claim or item of damage or injury based upon the emancipation or oss of salves should be entertained. The convention also provided that the commission should without delay, after its organization, proceed to examine and determine the claims specified, and that the concurring decisions of the commissioners, or of any two of them, should be conclusive and final; and the contracting parties especially engaged so to consider them, and to give full effect to such decisions, without any objections, evasions, or delay whatever.
The commission thus provided for was organized, and proceeded to the hearing of claims at the city of Washington. The claim of Foucher was for acts committed against his property within the period prescribed, and the parties interested in that claim were desirous of presenting it to the commission for consideration. That commission, as it was authorized to do under the act of June 16, 1880, providing for carrying the treaty into effect, had adopted rules for the conduct of its business, among which was one that, if the claimant were dead, his executor or administrator, or legal representatives, must appear for him, and that each claimant should file in the office of the commission a statement of his claim in the form of a memorial addressed to the commission. 21 St. 296, c. 253, § 4. The successions of Mr. and Mrs. Foucher were accordingly reopened, and Arthur Denis was appointed dative testamentary executor in both; that is, an executor to take the place of the one named in the wills of the deceased. Soon afterwards, Mr. Denis filed in the office of the commission a memorial entitled 'Arthur Denis, dative testamentary executor of Foucher, v. The United States.' In this memorial he presented the claim in the right of Foucher, deceased, and joined with him as claimants all parties interested in the successions of Mr. and Mrs. Foucher, all of whom were citizens of the United States, except Paul Louis Burthe and Dominque Francois Burthe, who were citizens of France; and he filed a power of attorney showing that he appeared as their agent. Subsequently these latter parties filed a separate petition or memorial, in which they appeared in person. They are heirs each of one-eighth of the estate of Mrs. Foucher. In June, 1883, the commission rendered its award as follows: 'Arthur Denis v. The United States. No. 603. We allow this claim at the sum of nine thousand and two hundred dollars, with interest at five per cent. from April 1st, 1865.' Of this award, Mr. Denis collected $8,229.18, from which he reserved $114.98 for future costs, and deducted $2,834.20 for charges and expenses, which are conceded to have been correct, leaving a balance of $5,280. This sum, as dative executor, he proposed to distribute among all the heirs and legatees of Mrs. Foucher precisely as he would have done had this amount been moneys possessed by her as part of her estate at the time of her death. All the parties except the plaintiffs in error are citizens of the United States, and were such citizens at the time of the award. The plaintiffs in error, being the only heirs who were at the time citizens of France, insisted that they were entitled to the whole award. Mr. Denis presented the matter to the civil district court for the parish of Orleans for determination, showing the respective proportions the heirs and legatees would be entitled to receive if the sum mentioned was to be distributed among them in the same proportion as the original estates. Accompanying this showing-'tableau of distribution,' as it is termed-he made the following statement: 'The undersigned, testamentary executor, understands that the French and American claims commission established the uniform jurisprudence for its decisions that it could not hear and determine any claims against the United States except those of claimants and beneficiaries who were French citizens, and that the said commission rejected all claims of persons not French citizens, even when they represented the claim of a deceased French person. In claim No. 603, of the succession of L. F. Foucher de Circ e, the actual claimants are all American citizens except Paul Louis Burthe and Dominique Francois Burthe, who are French citizens. Under the said jurisprudence of the commission, and considering the status of the American claimants, the executor felt great doubt and hesitation as to the distribution to be made under this tableau. On the one hand, it seemed as if the commission, under its rulings, could not have made any award in favor of the American claimants, and that the award as allowed must have been intended for the French claimants only; but, on the other side, the commission not having in express terms excluded the American claimants, the executor concluded, in making the tableau, to allow to the several legatees their recognized proportions of interest in the estates, leaving the French heirs to come by oppositions, and assert their rights, if any they have, to the entire award.' To this representation, or tableau of distribution, the plaintiffs in error made opposition, alleging that they were entitled to the whole award, being the only heirs and legatees who were French citizens at the time the claim was presented, and when the award was rendered; and that no award under the treaty could have been made in favor of the other heirs and legatees, they being citizens of the United States at that time, and that no executor, administrator, or person representing the succession of a person who was not a French citizen at the time the damage was suffered and award rendered could have any standing before the commission. The district court of the parish, the court of original jurisdiction, maintained the position of the plaintiffs in error, and decreed that the entire fund, $5,280, should go to them, one-half to each. From this judgment the executor appealed to the supreme court of Louisiana, which tribunal reversed the decree below, giving judgment in favor of the executor, to the effect that the entire fund in his possession from the award, less the charges and expenses incurred, and the amount retained for future costs, should be distributed proportionally among the legatees and heirs of Mrs. Foucher according to the tableau of distribution presented by him. From this latter judgment the case is brought to this court on writ of error.
Alex. Porter Morse, for plaintiffs in error.
Henry Chiapella, for defendant in error.
Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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