#### Walden Ex’or &c. v. Winston Adm’r &c.

.January, 1838,

Richmond.

(Absent Cabell. J.)

Revolutionary Officers — Honey Received for Use of Officer’s Widow — Case at Bar. — The adm’r of a revolutionary officer of the Virginia line on continental establishment, who died In Virginia, applies to congress for commutation of five years full pay, due .the decedent for military services: congress passes an act allowing the claim, and directing payment out of the treasury to the adm’r, but providing that he shall pay one fourth of the money to the widow of the decedent, who by the law of Virginia was entitled to no share of it; to which provision the adm’r gave his consent pending the ' bill before congress; and the adm’r receives the money from the treasury under the act: Held, he is bound to pay the widow one fourth of the money.

Col. John Thornton, an officer in the Virginia line on continental establishment in the army of the revolution, was entitled under the resolutions of congress, to commutation *of five years full pay in lieu of half pay for life, which he had never received, or, perhaps, even demanded, *67in his lifetime. He died in Virginia ; and by his will, made ample provision of real and personal property for his wife, Jane Thornton ; and she abided by the will, and therefore was entitled to no part of any personal estate of her husband left undisposed of by his will; see Thornton v. Winston, 4 Heigh 1S2. Col. Thornton’s claim for half pay or commutation in lieu thereof, being nowise disposed of by his will, he was intestate in regard to it. Winston, his administrator with his will annexed, presented a petition to congress, praying an act for the payment to him of the •commutation of five years full pay due to his testator for his services as an officer in the army of the revolution. The house of representatives passed a bill directing the payment thereof to him, according to the prayer of the petition ; but the bill was laid on the table in the senate, in order that a controversy which had arisen between col. Thornton’s widow on the one part, and his administrator and distributees on the other, as to the division of the money, might be adjusted. It was proposed by a friend of mrs.' Thornton, that an amendment should be made to the bill, whereby one fourth of the money claimed by the administrator and allowed by the bill of the house of representatives, should be paid to her; the administrator, at first, positively refused to give his consent to any such amendment ; but one of the distributees of col. Thornton being present, in order to obviate opposition to the bill, gave his consent to the proposed amendment; and then the administrator said, that that forced him to consent to it also. Whereupon, an amendment was prepared, and proposed in and adopted by the senate, whereby the administrator was directed to pay one fourth of the money allowed him by the bill for the commutation of five years full pay due to his testator, to mrs. Thornton, the .widow of the testator, and to distribute *the residue among the persons entitled thereto according to the laws of Virginia. And with this amendment the bill passed both houses, and was approved February 9th 1833.

Winston, the administrator, having received the money from the treasury of the U. States under this act of congress, exhibited his bill in the circuit superiour court of Culpeper, against Walden the executor of mrs. Thornton the widow, and the distributees, of col. Thornton the testator, shewing the act •of congress, and stating, that the claim had been settled at the treasury, and the amount thereof paid to him; alleging that this money was, by law, assets of his testator’s estate, subject, like all other assets, to debts, legacies and distribution, and that by the law of Virginia,' the testator’s widow, for whom .ample provision was made by his will and who had accepted that .provision, was therefore precluded from claiming any share; insisting, that the provision in the act of congress, whereby one fourth of the money, which belonged to col. Thornton’s distributees (not being wanting for payment of debts), was taken away from them, and given fo the widow who had no pretence of right to it, was null and void, and that-the whole money ought, notwithstanding that provision, to be distributed among the distributees of the testator according to the statute of distributions of Virginia, whereby the widow was wholly excluded from any share : and praying, that the distributees and the executor of the widow might interplead and litigate among themselves, and that the court should determine, whether the fourth part of the money should be paid to the executor of the widow, or the whole should be distributed among the distributees, excluding her from any share.

The distributees, in their answers, insisted on their right to the whole of the money, which they said was a part of the testator’s personal estate, being a debt due to him from the government, which devolved by law to *them in exclusion of the testator’s widow. The executor of the widow insisted, on the other hand, that, as the administrator had no means of obtaining this money but by petition to congress, and an act of that body providing for the payment thereof to him, therefore, the act of congress allowing the claim was, in truth, a grant of the money to him, and that the administrator, taking under that grant, was bound to abide by the terms of it, and to pay one fourth of the money to the widow. And he stated and relied on the history of the act, and of the amendment thereof made in the senate, to which, in the progress of the bill through the senate, the administrator had given his consent. o

The act of congress was exhibited, and the history of the provision in favour of mrs. Thornton, therein contained, was proved, as it is above stated.

The circuit superiour court declared, that the plaintiff received the whole sum allowed by the act of congress, in his representative character as administrator with the will annexed of col. Thornton; that the entire sum so received by him was assets of his testator’s estate in his hands to be administered, according to the will- of the testator, and the laws of Virginia ; and, that the defendant Walden, the executor of the widow, had no right to any part of the money, either under the act of congress, or the testator’s will, or the law of Virginia : and therefore the court decreed, that the whole of the money should be distributed among the distributees, in exclusion of. the widow. Walden the executor of mrs. Thornton applied by petition to this court for an appeal from the decree ; which was allowed.

PE)R CURIAM.

The circuit superiour court efred, in not decreeing that the appellee administrator with the will annexed of col. Thornton, should pay to the appellant executor of mrs. Thornton the widow of that testator, the fourth part of the money received by him as *administrator of his testator, by virtue of the act of congress of the 9th February 1833, with interest from the time he received it.

Decree reversed.