#### ANN PAGE ANDERSON, ADMINISTRATRIX OF THE ESTATE OF WILLIAM DUNCAN SMITH, DECEASED, v. THE UNITED STATES.

[No. 34654.

Decided April 3, 1922.]

*On the Proofs.*

*Jurisdiction; lonf/eviti/ pay; limitations.*— Where an officer in the United States Army serves as a cadet at West Point *from*July 1, 1842, to July 1, 1846, and as an officer in the Army from July 1, 1846, to January 28, 1861, when he resigns and accepts a commission in the Confederate Army, and dies intestate October 4, 1862, and his administratrix brings suit in the Court of Claims on July 3, 1920, the claim is barred by the statute of limitations and his administratrix can not recover longevity pay for cadet service.

*fíame.*— Where suit could have been brought at any time, under the acts conferring longevity pay, prior to the approval of the act of March 2, 1867, 14 Stat. 571 (sec. 3480, Revised Statutes), barring claims of disloyal persons, the act of July 6, 1914, 38 Stat. 454, repealing section 3480, R. S., while it opens up for settlement such claims by the accounting officers, who are not bound by the statute of limitations, it can not be considered as creating a cause of action in the Court of Claims where the bar of the statute of limitations has intervened.

*Mr. Benjamin F. Mieou*for the plaintiff. *Herbert d; Mieou*were on the briefs.

*Mr. Franlc B.*Crosthwaite, with whom was *Mr. Assistant Attorney General Robert H. Lovett,*for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff is a citizen of the United States, a resident of the State of Georgia, and is the duly appointed adminis-tratrix of the estate of Wm. Duncan Smith, deceased.

*243II. The said Wm. Duncan Smith was a cadet at the United States Military Academy from July 1, 1842, to July 1, 1846, and was an officer in the United States Army thereafter until January 28, 1861. On the latter date he resigned his commission in the United States Army and was discharged, and he afterwards accepted a commission in the Confederate States Army and continued in the latter service until the time of his death on October 4, 1862.

III. At the time of his resignation and discharge on January 28, 1861, there was due the said Wm. Duncan Smith the sum of $990.71 more than he had been paid, and this sum was due as pay and allowances when the time of his service in the Military Academy was counted as a part of his military service for the purposes of longevity pay. He died intestate on October 4, 1862, his domicile at that time being in the State of Georgia, and left no lineal descendant, but his widow, Georgia Page Smith, survived him and was his sole heir. She subsequently married one J. J. Wilder on June 9,1870, and died on August 12, 1914, intestate, leaving a daughter as an only heir, Ann Page Wilder, who married one Anderson, and is the Ann Page Anderson plaintiff in this suit. Mrs. Wilder, the widow of said officer, was domiciled in the State of Georgia at the time of her death in August, 1914.

IY. An act approved July 6, 1914, 38 Stat. 454, provides “ That section thirty-four hundred and eighty of the Revised Statutes of the United States be, and the same is hereby, repealed so far as it affects payments for services in the Army of the United States prior to April thirteenth, eighteen hundred and sixty-one.”

memorandum by the court.

The statute requires actions to be brought in the Court of Claims within six years from the time the right of action accrues, and the filing of the petition within the prescribed time is essential to the court’s jurisdiction. See *Firm case,*123 U. S. 227, 232. The claim is for pay and allowances of an Army officer and must have accrued at and before the date of his resignation and discharge from the Army in January, 1861. The joint resolution of 1867 (Rev. Stat. *2443480) suspended payments and was repealed so far as affects this claim by the act of July 6, 1914, 38' Stat. 454. The statute of limitations began to run prior to 1867 *(Kendall*case, 107 TJ. S. 123), and if the period between the acts of 1867 and 1914 be eliminated upon the theory that the right of action was suspended during such period (as to which no opinion is expressed), it yet appears that more than six years elapsed within which an action could have been brought, because six years, saving a very few days elapsed after the act of July 6, 1914, before the action was instituted in this court on July *3,*1920, and this period, added to the time in which suit could have been brought prior to the act of 1867, makes more than six years. The contention that the claim is founded upon the act of July 6, 1914, can not be upheld. This act did not create a new cause of action, but was sufficient to enable the accounting officers to proceed in proper cases, and they are not controlled by the statute of limitations. The claim is based upon statutes in existence during the lifetime of the officer concerned. Because of the bar of the statute of limitations we may not pass upon the merits of the claim, and the petition is dismissed for want of jurisdiction. It would seem that if the accounting officers adhere to their conclusion the plaintiff’s remedy is in Congress.