#### James C. Meggett *vs.*Samuel C. Black.

*Acts of Congress, construction*of— *Claim directed to he paid to heirs.*

By an Act of Congress passed in 1857, a claim on the government by a number of persons, many of whom were dead, and which had existed for many years, was allowed, and payment directed to “be made to those “who are living, and the heirs ofthose deceased.” In 1858 the Act was amended, and payment directed to be made to the executors or administrators *ofthose deceased.*Seld, that under the Act of 1857, the heirs then living of the deceased parties were the persons entitled; that the Act of 1858 only changed the mode of payment, and not the rights of the beneficiaries; and that an administrator of J. M., one of the original parties, who had received payment under the Act of 1858, held the fund in trust for the only heir of J. M. who was living in 1857, and was not liable to account to the representative of another heir of J. M., who had died before that time.

BEFORE OARROLL, OH., AT CHARLESTON, 1866,

Tbe bill was filed by James C. Meggett, administrator of J. J. Mikell, against Samuel C. Black, administrator of Josiah Mikell.

It stated that a certain claim of a large amount had recently been recovered from tbe Government of tbe United States through tbe action of Congress, by which the officers and privates of tbe Edisto Company, raised for tbe defence of tbe coast during tbe war of 1812, became entitled ,to certain shares of said claim proportionate to their respective positions in the said company. That it was also provided by tbe Act of Congress, that in case any of tbe said officers or privates bad died, that tbe share or shares of such so dying should be distributed among their heirs and next of kin, and paid to tbe executors and administrators of tbe deceased parties. That tbe said Josiah Mikell, deceased, was one of those who served their country during tbe war of 1812 in tbe Edisto Company aforesaid, and by such *35service became entitled to a1 portion of tbe fund set apart as above stated for tbe benefit of tbe said soldiers, or tbeir legal distributees. That tbe said Josiab Mikell bad been dead for many years, dying intestate, leaving surviving bim at tbe time of bis death bis widow,-Mikell, and bis son, J. J. Mikell. That tbe said J. J. Mikell bad also died intestate, leaving surviving bim bis daughter,-Mikell, who bad intermarried on tbe — day .of --, 18 — , with Samuel C. Black, of tbe said district.

That your orator is informed that, upon tbe death of tbe said Josiab Mikell, one-tbird of bis said claim vested in bis widow, --- Mikell, and two-tbirds thereof descended to bis son, J. J. Mikell; and that upon tbe death of tbe latter his said interest descended to his daughter, tbe wife of tbe said Samuel 0. Black as aforesaid. That tbe said-Mikell, widow of Josiab, who was entitled, upon bis death, to one-tbird of bis portion under said claim, bad also died; and that tbe said one-tbird bad vested in bis granddaughter, tbe wife of Samuel 0. Black as aforesaid. That tbe above-mentioned Samuel C. Black, upon tbe — day of-, in tbe year 18 — , took out letters of administration on tbe estate of tbe said Josiab Mikell, deceased, and, under tbe provisions made in tbe said Acts of Congress, applied to tbe department at Washington, as administrator of Josiab Mikell, deceased, for tbe portion under tbe said claim due tbe said Josiab Mikell, and that tbe same was paid to bim in accordance with tbe special provision in said Act contained, and that tbe said Black bad received the portion of Josiab Mikell, amounting to one thousand and seventy-two dollars and ninety-three cents, ($1,072.93.)

Tbe prayer of tbe bill was, that the said Samuel C. Black, as administrator, might be ordered to pay over to tbe complainant, as administrator of J. J. Mikell, deceased, .two-tbirds of tbe money received by bim from tbe United States Government.

*36The defendant, Samuel C. Black, demurred to so much of the bill as sought to compel him to pay over to the complainant, as administrator of J. J. Mikell, any part of the money mentioned in complainant’s bill, upon the ground that the funds received by him from the United States Government were not distributable as assets of the estate of Josiah Mikell, but were held by him as trustee for such of the heirs of Josiah Mikell as were living at the time of the passage of the Act.

The decree of his Honor, the Circuit Chancellor, is as follows:

Carroll, Ch. The question to be determined will be readily apprehended by an inspection of the pleadings.

By the Act of Congress of March 2, 1857, the Secretary 'of War is “authorized and directed to examine and settle, upon the principles of equity and justice, the claim upon the Federal Government of the officers, musicians, and privates of the Edisto Island Company of the militia of the war of 1812.” He is further directed “ to allow to those who are living, and the heirs of those deceased, the amount of pay and allowance to which each of them would have been entitled, according to their respective positions, under the regulations of the service at that time, for such a length of time as they shall each be proved to have served in de-fence of said island during the warand also “ reasonable compensation for the material and labor which shall be proved to have been expended by them in the erection of two fortifications on that island for the purpose of defence in said war.”

By the Act of Congress of February 1,1858, the *payments*which the former Act authorized to be made to the “ heirs ” are directed to be made to the administrators or executors of deceased members of the company.

*37It appears to the Court that there is nothing ambiguous in the terms of the Act referred to. Of the moneys receivable by virtue of those Acts, a portion is to satisfy “ the amount of pay and allowance” to which “ the officers, musicians, and privates of the company would have been entitled” had they been formally mustered into the service of the United States. The amounts upon that account to be “ allowed” to them are not to be fixed arbitrarily, but are to be ascertained by reference to their “ position,” their military rank and grade, and their “ length of service.” The residue of the moneys which they are entitled to claim they receive as "just and reasonable compensation for material and labor expended” in the erection of fortifications on the island for the purpose of defence.

It is not a claim upon the-bounty of the Government that is recognized by the Acts in question, but a demand upon its justice; not a mere gratuity, but a debt. The transfers of money authorized by these Acts are in terms designated as “payments;” and the irregularity of the first Act in directing them to be made to the “heirs” is rectified by the subsequent Act, in its direction that such payments shall be made to the personal representatives of such of the claimants as are dead.

It results that the money received by Samuel 0. Black, the defendant, as administrator of Josiah Mikell, deceased, under the Acts of Congress referred to, are to be disposed of by him as part of his estate, in a due course of administration; and that the plaintiff is entitled to receive the distributive portion of the same that belonged to his intestate, J. J. Mikell, deceased.

It is ordered that the defendant account with the plaintiff before one of the Masters upon the principles of this decree, and that the costs be paid out of the estate of Josiah Mikell, deceased.

*38Tbe defendant, Samuel 0. Black, administrator of Josiab Mikell, appealed, on tbe following ground:

Because the Act of the 2d of March, *1857,*having granted to the “ heirs” of a deceased member of the Edisto Island Company the amount of pay and allowance to which such member would have been entitled if living, the defendant, to whom payment was made under the provisions of the Act of 4th of February, 1858, received the same in trust for the heirs of the said Josiah Mikell living at the time of the passage of the Act, and not as assets of the estate of his intestate, to be administered in due course of law.

ACT OF CONGRESS.

.That the Secretary of War be and he is hereby authorized and directed to examine and settle, upon the principles of equity and justice, the claim of Josiah Mikell, and others, (naming them,) they being the officers, musicians, and privates composing the Edisto Island Company of militia in the State of South Carolina in the war of 1812; and that he allow to those named who are living, and the heirs of those deceased, the amount of pay and allowances to which each of them would have been entitled, according to their respective positions, under the regulations of the service at that time, for such length of time as they shall each of them be proved to have served in defence of said island during the said war, and that he allow them just and reasonable compensation for the material and labor which shall be proved to have been expended in the erection of two fortifications on that island for the purpose of defence on said island.

*Lord,*for appellant.

*Whaley,*contra.

*39The opinion of the Court was delivered by

Dunkin, C. J.

The Act of Congress, 2 March, 1857, authorized and directed the Secretary of War to examine and settle, upon the principles of equity and justice, the claims of seventy-eight individuals, by name, constituting the Edisto Island Company of militia, who, in the war of 1812, had rendered important services to the country.

The Secretary was directed to allow to those named who are living, and the heirs of those deceased, the amount of pay and allowances to which each of them would have been entitled, according to their respective positions, under the regulations of the service at that time, and also to allow for the materials and labor in erecting fortifications. The Secretary of the Treasury was directed to pay the amount adjudicated to be due the said parties by the Secretary of War.

By the Act 27 February, 1858, the preceding Act'was so amended as that the payments therein authorized to be made to *“*the heirs of those deceased” shall be made to administrators and executors of those deceased.

At the time when the Act of 1857 was passed, and also at the time of instituting these proceedings, the wife of the defendant, Samuel C, Black, was the sole heir of her grandfather, Josiah Mikell, deceased, who had been one of the members of the Edisto Island Company, and the defendant is himself the administrator of Josiah Mikell, deceased, and has received from the treasurer the amount awarded by the Secretary of War under the Act of 1857.

The complainant is the administrator of J. J. Mikell, deceased, the father of Mrs. Black, and who was the son of Josiah Mikell, deceased, but had been some time dead when the Act of 1857 was passed.

After a careful examination of the Acts, it does not appear to the Court that any difference or change was intended to be made in the beneficiaries under the Act of *401857 by tbe amendment of 1858. By tbe former Act tbe allowance was to be made by the Secretary of War, on equitable and just principles, to those of the company who were living, “ and the heirs of those deceased.” By the second section the amount adjudicated to the said parties, by the Secretary of War, was to be paid by the Secretary of tbe Treasury. After an interval of nearly half a century, it would impose on the Secretary of the Treasury great difficulty and embarrassment to ascertain the heirs of seventy-eight individuals, or rather of such as were not living in 1857. To avoid this, by the Act of 1858, so much of the Act of 1857 as directed payment by the Secretary of the Treasury, of the sums adjudicated by the Secretary of War, " to those living and the heirs of those deceased,” under the previous provision was amended, and payment was thereby directed to be made to “the administrators and executors of those deceased.” The grant or allowance or donation, (by whatever name it may be characterized,) in the first section of the Act of 1857, to the “ heirs of those deceased,” was not repealed or withdrawn by the subsequent Act, which changed the mode in which payment or adjudication of such allowance was to be made. Several Acts of Congress have been brought to our notice in which grants are made directly to the heirs or children of persons who have rendered meritorious services, rather than to their legal representatives, which might afford no advantage to the children or heirs. An Act entitled "An Act for the relief of the heirs of Samuel E. Thurston, late delegate from Oregon,” was passed 2 March, 1857, (11 Stat. 505.) The Secretary of the Treasury was directed “to allow and pay to the legal representatives of Samuel E. Thurston, late delegate from *Oregon, for the benefit*of *his*heirs,” certain arrears of pay, &c. Taking together the Acts of 1857 and 1858, in regard to the Edisto Island Company, a similar construction should be given. By the former Act the sums *41were allowed and awarded by tbe Secretary of War to those who were living, and the heirs of those deceased. By the latter Act the payment of the sums thus adjudicated was to be made by the Secretary of the Treasury to the legal representatives of those deceased, in trust for those in whose favor the award had been made, to wit, the heirs of those deceased. Such seems to the Court the true interpretation.

The defendant, as administrator of Josiah Mikell, deceased, was entitled to receive the money under the Act of 1858, and in right of his wife, as sole heir of the intestate in 1857, he was entitled to. retain it. It is therefore ordered and decreed that the decree of the Circuit Court overruling the defendant’s demurrer be reversed, and that the bill be dismissed.

Wabdlaw and Inglis, J. J., concurred;

*Decree reversed.*