Opinion of the Court

legal effect of the facts in those two cases was not the same; or, if it were, to determine whether the facts set up here fall within the same category, and direct which decision should govern.

This practically requires us to pass upon the whole case as it stands, and to decide whether the demurrer was properly sustained or not.

But the whole case is not before us for decision, and the certificate discloses that the doubt of the courts below is based on the assumption that this court has applied well-settled general principles of law differently in two different cases upon the same state of facts. While some hesitation in decision may temporarily result until it is finally determined whether that assumption is justified, and, if justified, the anomaly is corrected, we think such determination ought not to be attempted save where the point must be disposed of on a record after final decree.

In the absence of power to deal with the whole case, the question amounts to no more than an inquiry as to whether in our opinion there is an irreconcilable conflict between two of our previous judgments, and a request, if we hold that to be so, that we put an end to that conflict. We do not regard these as questions or propositions of law in a particular case on which we are required to give instruction.

Certificate dismissed.

ERROR TO THE SUPERIOR COURT OF THE COUNTY OF NEW HAVEN, STATE OF CONNECTICUT.

Nos. 177, 234, 207. Argued and submitted March 24, 25, 1896. - Decided April 18, 1896.

The proviso in the act of March 3, 1891, c. 540, 26 Stat. 908, "That in all cases where the original sufferers were adjudicated bankrupts the awards shall be made on behalf of the next of kin instead of to assignees in bankruptcy, and the awards in the cases of individual claimants shall not be paid until the Court of Claims shall certify to the Secretary of the Treasury that the personal representative on whose behalf the award is made represents the next of kin, and the courts which granted the administrations, respectively, shall have certified that the legal representatives have given adequate security for the legal disbursement of the awards," purposely brought the payments thus prescribed within the category of payments by way of gratuity and grace, and not as of right as against the government.

Congress intended the next of kin to be beneficiaries in every case; and the express limitation to this effect excludes creditors, legatees, assignees and all strangers to the blood.

The words "next of kin," as used in the proviso, mean next of kin living at the date of the act, to be determined according to the statutes of distribution of the respective States of the domicil of the original sufferers. The said act of March 3, 1891, c. 540, 26 Stat. 908, clearly indicates the judgment of Congress that the next of kin, for the purposes of succession, should be the beneficiaries, as most in accord with the theory of the appropriations.

THESE are writs of error to review judgments of the Supreme Judicial Court of Massachusetts in Nos. 177 and 284, and a judgment of the Superior Court of the county of New Haven, Connecticut, in No. 207.

Plaintiffs in error in No. 177 are administrators de bonis non

Statement of the Case.

with the will annexed of the estate of Crowell Hatch, deceased, late of Roxbury, Massachusetts, and defendant in error is administrator de bonis non with the will annexed of the estate of Henry Hatch, deceased.

Crowell Hatch died in the year 1805, leaving three daughters and one son, Henry Hatch. By his will, all his property was given in equal shares to the four children. Of each of the three daughters there are descendants now living. The son died leaving a widow but no issue, and left by his will the residue of his estate to his widow, who did not afterwards marry. Crowell Hatch was never bankrupt and his estate and the estates of his four children have always been and are solvent. Plaintiffs in error as administrators of the estate of Crowell Hatch have received from the United States certain moneys for the loss of the brig Mary, being one of the claims. on account of the spoliations committed by the French government prior to July 31, 1801, which were reported to Congress by the Court of Claims pursuant to the statute of the United States of January 20, 1885, 23 Stat. 283, c. 25, and for the payment of which Congress made appropriation by the statute of March 3, 1891, 26 Stat. 862, c. 540. By the statutes of Massachusetts in force when Crowell Hatch died, his estate, after the payment of debts and the expenses of administration, would have been distributed, if intestate, equally among his children. Laws of Massachusetts, Stat. 1789, c. 2, v. 2, p. 30; Stat. 1805, c. 90, §§ 1 and 2, v. 4, p. 337.

The probate court in and for the county of Norfolk, in which proceedings were pending, ordered a partial distribution of the fund of nine sixteenths among the descendants of the three daughters and of three sixteenths to the administrator of Henry Hatch, the son. From this order an appeal was taken to the Supreme Judicial Court, and the case reserved for the full court, by which the decree appealed from was affirmed. 157 Mass. 144.

In No. 284, William Gray, as administrator de bonis non, with the will annexed of the estate of William Gray, who was a sufferer from the French spoliations, filed his bill in equity in the Supreme Judicial Court of Massachusetts for instruc

Statement of the Case.

tions as to the disposition of a fund which had been paid to him under the act of Congress of March 3, 1891. On his death, pending the cause, Robert Codman succeeded to the administration and was substituted as complainant. All the living legatees and next of kin and the representatives of such as were deceased were made parties defendant. The case was heard by a single judge of the Supreme Judicial Court of Massachusetts and reported by him to the full court, which entered a final decree that the funds in the hands of the complainant should be "paid over as assets of the estate of William Gray, the elder, and as passing under his will to the residuary legatees named therein." 159 Mass. 477.

William Gray died November, 1825, leaving five sons, William R., Henry, Francis C., John C. and Horace, and one daughter, Lucia G. Swett. He left a will by which, after a specific legacy to the daughter and a conditional legacy to each son, he gave the residue to his five sons, excluding the daughter. The fund in question, if it falls to the estate at all, is part of the residue. William R. died in 1831, intestate, leaving four children him surviving, one of whom died in 1880 leaving five children. In 1829 Henry assigned his interest in his father's estate to his four brothers, and died in 1854 leaving ten children. Francis C. died in 1856 and John C. in 1881, testate, but without issue. Horace died in 1873, intestate, leaving five children. In 1847 he assigned all his property under the insolvent laws of Massachusetts to Hooper, Bullard and Coffin, as assignees for creditors, and of these assignees two survive and are parties. Mrs. Swett died in 1844. She had had four children, of whom William G. died in 1843, leaving a daughter surviving; John B. died in 1867, leaving a daughter surviving; Samuel B. died in 1890, leaving five children; and one child, Mrs. Alexander, still survives.

The representatives of the three brothers, William R., Francis C. and John C., and the assignees of Horace, contended that the fund passed by the will of William Gray, and should be paid to them in equal proportions as representing four of the five residuary legatees, and as being assignees of the fifth son, Henry. The individual descendants of the brothers, except

Statement of the Case.

those of Henry, made no contrary claim, and by their answers either took the same position or admitted the allegations of the bill and submitted the questions to the court.

The representatives and descendants of Henry Gray insisted that the fund did not pass under the will, but was a new and subsequent gift in favor of the next of kin of William Gray; that it should go to the nineteen grandchildren of William Gray, excluding the great grandchildren, namely, the three children of William R., who survived at the date of the act of Congress, the ten children of Henry, the five children of Horace, and Mrs. Alexander, the one surviving child of Mrs. Swett; and that they were entitled to ten nineteenths of the fund distributed per capita among the grandchildren.

The representatives and descendants of Lucia G. Swett also contended that the fund did not pass under the will and was a subsequent gift in favor of the next of kin of William Gray, but they insisted that in the distribution among the next of kin of William Gray, to be ascertained at the date of the passage of the act, the issue of the deceased children should take by right of representation the shares of their parents according to the statute of distributions, or that the fund should be distributed among the representatives of the next of kin to be ascertained at the death of William Gray, the elder. Distributed per stirpes, they claimed for the children and grandchildren of Mrs. Swett one fourth of the fund, one sixteenth to Mrs. Alexander, one sixteenth to the daughter of William G., one sixteenth to the daughter of John B. and one eightieth to each of the five children of Samuel B., making another sixteenth; or that, taking the distribution as of the date of the death of William Gray, the administrator of the estate of Mrs. Swett was entitled to one sixth part of the fund as the representative of one of the six children of William Gray, surviving him.

In No. 207 the facts appeared to be these: In 1797 the firm of Leffingwell and Pierrepont owned a ship and cargo which were seized by a French privateer in June of that year and became the subject of a French spoliation claim. William Leffingwell, the senior partner, lived in New Haven, Connecti