constitute de^te due to the deeeaeed, and Jvet daime tm their part, it- seems impoesible to
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Antkariijf ov«r, and Disposition ofy Treasury Drafts — Keyser^s Case. 341
deny. If it is not MaetB wmemhere, how ean it be reoeived by the foreign adminis-
tntor in his Juriadiotionf And the Government ibrs maoh placing its own indebted-
ness npon the plane of the indebtedness of one of its own citizens, by admitting the
claim of a foreiicn administcator to reoeive the money as assets, as it wonld be if it'
psid ifc at once to the administrator within the district. The oommon warrant spoken
of in the section quoted above was an incipient patent of State lands to be exchanged
after location for a patent. That which it represented was still within the State offi-
ces not yet formalated or separated from the other possessions of the State, and yet
Maryland admitted thatsacha common warrant should be considered as assets of the
deceased.
If the ubiquity properly claimed for the Oovernment of the United States is to be
ascribed to tne debts doe by the Government, there would seem to be no good reason
why those debts should not be payable as well in Washington as elsewhere. U.biquity
implies wnivsrsal i^reseaoe, not uniform o^MJcoe. And if the debts are to be considered *
as ererywikere, it is inconceivable to me that the money especially appropriated and
dedicated to pay them, evidenced by the Treasurer's drart payable here, should be
held to be absent from the only plaoe in the country where in &ct and truth it actually
is, in the Treasury of the United St«tes in Washington City.
It was only the debts of the Government which the court declared had no locality
at the seat of Government. But they are capable of being localised. A draft of the
Tr'*a9nrer payable at Boise City is not payable elsewhere, although the Treasurer
might have directed its payment at some other locality, in which case it would have
been payable only at that plaoe. These drafts are payable at Washington, at the
Tr'-afiury of the nation, and here only they are properly payable as they now stand.
Every consideration of propriety suggests the advautase of making payment to a
person appointed here, whose qnalification, bond, and character can readily be in-
qnirpd into, rather than to one who may have administered at a great distance, and
wirhont real assurance of safety to the fdnd.
And as it cannot be denied that, under the law as it now stands, there must be local
administration here to pass title to all other personalty that may be found here be-
longing to a non-resident, convenience and equal jnstice wonld dictate that this same
tribnnal should be allowed to administer other personal eflEectsin the form of pioneys
to be derived from the Gk)vemment. Why should local creditors be driven to two
riral representatives, especially as the law of the District may possibly r^ect their
claims, and they may thus be deprived of their Just due because of the refusal of the
6ov«>rnment authorities to pay uie money to the administrator, of the jurisdiction
where the d<)bts were contracted, perhaps npon the faith that the claim affainst the
Government was to be the source nom which the creditors wer« to be paid f
The other courts of the svstem within the District have repeatedly taken cognizance
of suits respeeting fbnds In the Treasu^ claimed by rivu parties, and have reoog-
niztMl that the moneys in these cases before them were within the District and the
jnrisflietion of its tribunals. It is true that in the early case of Comegys v. Vasse,
in lj-e5, the circuit court us^d this language : *' The fund out of which the claims are
to be paid are in the Treasury of the United States. Where is that f The Treasurer
resides at Washinffton and the head of the Department; but is the money there V*
The bill was filed by a bankrupt, claiming an account from his assignees and that
they should discover what amount they intended to claim before a oommission under
a Spanish treaty on complainant's accounts,, and that the^ should be enjoined fh>m
receiving whatever amount may be decided by the commission under the treaty to
be due on that claim, and that a like ii\|unction should go against the Treasurer. It
may be that the negative answer of the oourt to its own inquiry was predicated of the
fact that the money had not yet been awarded to the claim upon tne theory enun-
eiated by the Supreme Court of the United States in the case of Clark v. Clark (17
How.), 2S3, that *' the fund had no existence till the award was made."
But whatever may have been the reason for their refusal, it is certainly at variance
with Bubaequent declarations of the same court, and of the Supreme Court of the
I'nited States. In the numerous oases arising under the mixed commissions for the
adjustment of the claims between this country and Great Britain and Mexico, it seems
to have been assumed that the money, after it had been placed in the Treasury for
distribution to the American claimants by the Secretary of State or Secretary of the
Treasary, was properly to be considered as at the seat of Government. Mr. Justice
Wylie, in his opinion in McManus et ah v, Standish et al, {I Mackey, 152), examines
a number of tnese cases at length and decides that this court had jurisdiction in that
caa«. All the parties were non^residenta^ but all the essential ones, it was held, had
appeared in the oourt. In the conclusion of this branch of his opinion, he says :
*' We do not wish to intimate an opinion, or an impression even, that if the fund is
in the Treasury, and if the party is not here, that that would make any difTerence.
That ia not the question to be decided in the cases now under consideration. We are
not reqnijred to go beyond the fact that the fhnd isia ike TreaBurjf here, and the parties
claim iog the Aind are before the oourt ; and this we hold gives us jurisdietlon here.'*
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342 Firgt ComptroUef^s Offloej Treamrf DepartmetU.
The money referred to in that case was paid by thel Mexican Ooverament, and was
in the Treasury subject to the order of the Secretary of State, and the Jastice declares
it is in the Treasury hart.
In this large class of cases which have been before the courts of the District, and
many of them before the Supreme Court upon appeal, the action of the courts seems
to be consistent only with the idea that moneys thus circumstanced were to he con-
sidered as in the Treasury in Washington City. ^
Thus in the case of Whitney et al, v, Dey et al.f which was a contest between claim-
ants to an award under a Mexican commission, the bill, which was filed in 1851,
prayed for an injunction against the defendants, who were all non-residents, and also
against the Secretary of the Treasury, although he was not made a party t>o the snit.
The circuit court ordered the injunction to issue before answer or appearance, and
it was issued as prayed, served upon the Secretary, and by him respected, as were
also the subsequent orders passed uy this court after its organization, requiring the
payment by the Secretary of portions of the award.
The same course was pnrsn<'d in the subsequent case of Clark v. Clark (17 How.
315), which was cited with appioval in Phelps v, McDonald (99 U. S., 806). There,
too, the defendants were non-residents, and an injunction was issued against the Sec-
retaiy of the Treasury, though he was not made a party.
In the case of Pemberton v. Lockwood (21 How., 257), the Secretary of State was
made a defendant with others who were non-residenta, to a bill seeking payment of
£ait of an award made to the owners of slaves liberated from the ship Creole. Mr.
[arcv, the Secretary, himself a distinguished Jurist, answered the bill, not question-
ing the Jurisdiction of the courts, the money having been plae«d in the Treasury to
pay these awards upon the orders of the Secretary or State.
I will refer now to some cases not arising under the operation of a statute author-
izJng litigation in this Jurisdiction, as was the case with respect to those we have
been considering.
In the case of Ridgeway v, Hayes (5 Cranch, C. C. R., 34), where an award by com-
missioners under a French treaty was the subject of controversy, one of the olaimants
applied to the circuit court for an injunction against the Treasury offioen to prevent
the payment of the money out of the Treasury to the defendant. The language of the
court in the case of Comegys v. Vasae, before quoted, was cited to show a want of
jiuisdictlon to grant the renef. But the chief Justice replied: '* In the present case
the fhnd is placed in the Treasury of the United States as in a place of deposit only,
and the* United States are merely trustees" ; and he proceeds to say that he cannot
*'see why the United States, in cases in which they are merely stakeholden, should
not submit to these decisions and aid those tribunals in the due administration of
Justice."
A similar decision was made in the ease of Dutbill, adm'r, v, Conrvanlt, reported in
the same volume, in which Congress, to carrr out a French treaty, made a provision
for a suit to be brought In the District of Columbia. This was the case that went to
the Supreme Court, and is reported in 14 Peters, 38.
In the case of Milner r. Metz (Itf Peters, !^1), Metz, as trustee, filed his bill against
several non-residents, and the Secretary of the Treasury, as a co^efendant, to enjoin
the receipt bv the defendant of a sum appropriated by a private act of Congress to
his assignor for extra services. The court granted a perpetual injunction as prayed,
which was sustained by the Supreme Court on appeal. The Jurisdiction of the court
could only have been based upon the idea that the money was within the Jurisdiction
of the court at the seat of Government, for there was no special statute conferring
Jurisdiction, and the defendants, except the Secretary, were residents of Pennsyl-
vania. ,
The circumstances of the case of Kinney r. Megnire, recently decided by the Equity
Court, were very much like those of the present case. Several drafts had been issaed
by the Treasurer, under a private act of Congress, payable to the order of sundry
sailors who had been imprevsed by Admiral Porter ifbr service in the Red River dnr-
ing the war, and were captured and retained as prisoners until the close of hostilities.
These drafts were delivered to Megnire, who had been, and claimed to be still, their
attorney. He was a resident of Ohio, and left the Jurisdiction with the drafts in his
possession. Kinney, who exhibited properly authenticated powers of attorney since
the issue of the warrants, applied to the Treasurer for the issue of other drafts, and
the bill was filed to procure au injunction to forbid Meguire from asserting title nnder
the drafts in his possession. Megnire never answered, l)ut there had been publication
•gainst him under Sec. 787, Rev. Stat., D. C, wh'.ch allows that as a substitute for per-
sonal service "in all actions at law or in equity which have for their immediate object
the enforcement or establishment of any lawful right, claim, or demand to or against
any real or personal property within the jurisdiction of the oouriy" and this court decreed
according to the prayer of the bill, after full argument upon the ground that tjie money
belonging to the claimants, to pay which these drafts had been issued, was in the
Treasury at Washington, and therefore within the Jurisdiction of the court. It was
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Autkority aver^ €md DlMpouUion of^ TreMury Dra/U^Kqfser^s Case. 343
undentood that other drafta would be iBsaed by the Treaaarer if the court shonld de-
cide against the legal right of Meguire to retain thoeo alreadv issued.
It seems plain, then, that when the Orphans' Court oonsiaered the fniuls claimed
in this proceeding as localized so as to be proper subjects of jurisdictiou here, it was
but acting in accord with the established practice of the other branches of the conrr.
Dnriug the existence of the act of June 24, ItiW, it was unnecessary and usulesH !•>
take cognizance of such funds as local assets here, but this was because, and only b«'-
canse, of the existence of that statute.
The learned justic : in the opinion in Vanghan v. Northup, in combatting the i«l<'a
that the personal representative of a non-resident creditor of the Government should
take out lettei-s within the District of Colombia before he could receive the claim,
declares, '*such a doctrine has never yet been sanctioned by any practice of the (lov-
eniment."
With due submission to the distinguished jurist, I venture the statement that the
facts disclosed by our records do not bear out the assertion that it has not l>een the
practice of the Government t4) pay claims to local administrators appointed by the
Orphans' Court of the District. The records of that tribunal abundantly show that
from its origin it exercised the power of granting letters here upon property withiu
the District of Columbia belonging to nou-reatdents, whether that property consisteil
of claims against the Government, or other *' debts due to, or Just claims of, the de-
ceiMwd."
The dockets of administration very seldom furnish any memoranda indicating
whether the deceased was a resident or a non-reaident, and thus the number of refer-
ences suggested in that ifanner are fewer, in all probability, than the facts wouM
warrant. But the eases where such memoranda occur have been examined, and two
hundred and seventeen intanoes are found, from 1801 to 1812, inclnsLve, where lettern
were granted on the estates of non*residents, by far the larger number of who h are
described as attached to the Army or Navy, or Marine Corps.
The first of theae cases was on July 22, 1^02, where l^^ters wer^ issned on the estate
of a sailor late of the U. S. frigate President. In the satne year letters were granted
to the executora of General Washington on his personal estate in this Diritfict. In
1H()5 administration was granted to Capt. Daniel Cormick on the personal estate of
tweuty^nine perauns late of tbe (J. S. Marine Corps. Ilf seems almost eertain that the
object of this administration was to obtain pay or prize money due by the Govern-
ment, aa was expressed on the docket entries in a later case, ** to enable the father of
William Rogers to receive from the Government the pa^ due his dead son."
In 1807 letters were granted on the personal estate of Chancellor Hanson, of Mary-
land.
The granting of each letters would naturally have been less frequent after the pan-
sage otthe act of 1812, although it continued in each year from that time to a greater
or leas extent. Thus, from 1813 to 1825, inclusive, letters were granted on the estates
of non-residents in one hundred and seventy caaea. Selecting another period, I find
one handred and twenty auoh caaea, between 1836 and 1844, inclusive ; and selecting
still another neriod, fifty-ninesuch caaea, were between 1874 and 1^77, inclusive.
The case oi Mackey v. Coxe,in 18 Howard, already cited, ahows'that the Treaaury
offlcialfl, about 1840, required the agent of the administrator of the deceased to take
out letters in the District before they would pay him the money due his intestate. As
expreaaed by Jnatice McLean in the opinion of the court: ^* There appear to have
been no creditora of the eatate of Mackey in the Diatrict of Columbia, and letters of
administratiou were obtained here, as neceasaay under the decision of the Treasury
Department," so, in the year 1849, lettera of adminiatration were granted to Andrew
Wj'lie upon the eatate of Samuel Baldwin, deacribed in the proceedings as a citizen of
Pennsylvania, and the administrator thus appointed collected from the Treasury a
considerable sum of money awarded to the estate of the intestate under the treaty with
Mexico. There was no pretense that there were other assets, and this payment was
marie while the act of 1812 was in force and eight years after the decision in Vanghan
r. Northup had been announced.
After the act of 1812 had been repealed the practice was continued, and thongh such
applications were sometimes resisted, upon the authority of Vanghan v. Northup, yet
the court api>eared to have no difficulty in granting the letters. A few of the more
recent cases may be referred to here.
After the close of the war, the executrix of Horatio Ames, of Connecticut, where
she had taken out letten^ applied for letters to the Orphans' Court here, alleging that
the expected assets consisted of a lar^ claim against the Government for munitions
of war furnished the €k» vemment. They were issued to her, and in 1871 application was
made for their revocation, averring a waste of the moneys received from that source.
The application was granted, the objection appearing to have been made that under
the act ot 1812 the letters here were useless if not improper.
In 187d, however, after the repeal of that law, an application for letters here was
made to the aame court, and Nathaniel Wilson was appointed by Justice Olin, and
gave bond in the penalty of $160,000.
Digitized by VjOOQIC
344 Fir$t Comptroller's Office^ Treaswg DqfartmenL
In the same year James P. Hamilton was appointed administrator of Bei^amin
Early, and charged himself in hts account of assets with $3,549.50, being ''theamoant
received from the Treasury Department of the United States for cotton seized and nsed
by the United States (Government/'
*^In 1876 letters were granted to Charles D. Peonebacker, upon the estate of one Sny-
der, of Hardin County, Kentucky, the petition alleging *' that Snyder had assets m
the District of Columbia consisting of one IT. S. Treasury draft, No. 5332, for 1713,**
which draft was then in the hands of the petitioner as the attorney of ihe deceased.
And on the same day letters were granted to Pennebacker on the estate of one BraD-
hate, of Kentucky, the assets being described as " a claim allowed against thjs Govern-
ment."
In 1879, John Campbell applied for letters upon the personal estate of one Springer,
of New York, alleging that, as administrator of Springer under letters issued at the
placti of the domicile, he had brought suit in this District in respect of a claim dae
the estate ; but that the defendant, in his plea, had denied the right of a foreign ad-
minintrator to maintain the suit, which plea had been snstAined by the General Term:
and he accordingly applied for the ancillary letters for that purpose, and the letters
were issued accordinly.
In January, 1880, Allan Rutherford, of North Carolina, applied for and obtained
letters upon the personal estate of F. W. Beers, of New York, averring that he was a.
creditor of the deceased, and that ^* the only property or personal estate lofr. by the de
ceased is a Treasury draft, payable to the decedent,'' and the court issued the letters'
And in March, 1881, Mr. Henkle, a member of this bar, applied for Iett«<r8 of adminia'
tration upon the personal estate of John P. Sherburne, who, it was charged, resided
in San Francisco, and had recently died there, leaving personal estate in the District
of Columbia, consisting of a certain claim of about $1,500 against the United States,
then in the Court of Claims. The petitioner averred that he had been the att<»mey of
the claimant, and as such was a creditor, and as the Attorney-General was urging tbe
trial of the case, it waa necessary that an administration be granted here, and it wa8
done accordingly.
The case of General Bnmside occurs to me as one of the more recent cases. That
distinguished and excellent gentleman died in Rhode Island, of which Slate he was :i
Senator in Congress. His administrators there applied for letters here in respect of
his personal assets here, and passed their accounts here as required by law.
In 1876, a large number of letters were granted to Mr. Lowndes, upon the estates of
Hawaiian sailors who had claims before the Alabama Claims Commission, and ainiilar
letters were recently granted to the same gentleman in 76 similar cases where there
bad been administration in the place of their domicile ; but it was represented to tbe
Orphans' Court that the rules of the Alabama Commission required that letters of ad-
ministration should be taken out before the claims could be considered.
In fact, if the practioe of a tribunal and its frequent claim of Jurisdiction can be
regarded in any case as proof tending to show the rightfulness of the claim, the con-
sistent practice of the Orphans' Court of the District of Columbia in this particular
cannot tail to have great weight in support of the jurisdiction claimed.
I am unwilling'to' concede that this constant practice of our predecessors and of our-
selves is unwarranted, and that the Government officials have also been hitherto
acting upon a similar incorrect construction of the law. On the contrary, I believe
that since the repeal of the act of 181*2, the jurisdiction of the Orphans' Court of the
District of Columbia to issue letters of administration, whether the property alleged
to belong to the non-resident deceased consists of ordinarv jDersonal effects, or of
claims or debts due by the deceased, whether by private individuals or by the Gov-
ernment, is clear, and that it is its duty t<o grant the letters upon proper application
and compliance with the reauiremeuts of the law. •
We are all of the opinion tnat the writ should issue, requiring the Treasurer to make
payment of the amounts specified in the three drafts, to the petitioner os administrs-
tor of John J, and of John N. PuUiam.
We cannot regard the decree of the Equity Court referred to in the petition as ef-
fective at all against the administrator in Tennessee, since he is not amenable to boit
as administrator in this jurisdiction.
The reservation in that decree, which requires the District administrator to account
fully of the personal estates of his intestates, will allow full opportunity for a content
by those interested, if they believe Keyser's claim is not properly supported by proof.
The several eouity causes mentioned in this oninion have been referred to only for
the purpose of snowing that in those instances funds in the Treasury have been con-
sidered as localized here, and only for that purpose. Nor are we to be understood as
agreeing to release in the slightest degree tne wholesome principle founded alike up-
on reasons of public policy and convenience, that exempts fh>m attachment fhnds in
the hands of Government officials or other public officers.
Mr. Justice Cox^ while concurring in the conclusion of the court, said that he dis-
sented from the reasons given therefor, and thereupon read the following opinion:
The petitioner, Halstead, shows that on the 17th of June, 1882, the Treasurer issued .
Authori^ over^ and DispoHtion ofj Treasury Drafts — Keyser^s Case. 345
ertain drafts, iu pmtiQanoe of appropriations made by Congress, in favor of John J.
Pnlliam, in his own right, and another to him as ezecntor of John K. Palliam, pay-
able at the Treannry in Washington, and delivered them to the petitioner as his attor-
oey. John J. Pnlliam having died, petitioner subsequently obtained from the Orphans'
Court of this District letters of administration on the estates of both the Pnlliams.
He also sets forth that in a certain chancery oanse he was directed by decree of this
conrt to indorse these drafts and collect them at the Treasury, and distribute the pro-
ceeds in a manner set forth in the decree ; that in pursnance of the decree he indoiised
the drafts and demanded payment of them of the Treasurer, which was refused, al-
though the Treasurer has funds in his possession for their payment; and he asks a
man&mns requiring him to pav them to the petitioner.
The Treasurer answers that he is ready to pay to any one legally authorized to re-
ceive the money, but that the domicile of the Pnlliams was in Tennessee, and there
were no assets of theirs in the District of Columbia, and the Orphans' Court had no
jurisdiction to grant letters of administration on their estates, and the letters of the
pf.titioner are void ; that even if not void, they conferred no right to assets out of the
Di8tri<;t of Columbia, and that the debts represented by these drafts have no local
«i/H« here, but belong to the administrator of the domicile ; that the administrator
of the domicile and the respondent were not parties to the decree referred to in the
petition, and not bound by It.
I do not deem it necessary to consider the effect of the decree above referred to, but