(171 U. S. 466) BRIGGS v. WALKER et al (October 17, 1898.) No. 260. ERROR TO STATE COURTS RIGHT OF EXECUTOR TO MAINTAIN-CONSTRUCTION OF STATUTE-ALLOWANCE OF CLAIM TO LEGAL REPRESENTATIVES -RIGHTS OF CREDITORS OF ESTATE. 1. An executor represents the person of his testator, and is charged with the duty of resisting unfounded claims against his estate; hence he may maintain a writ of error to review the decision of the supreme court of a state so construing a statute of the United States as to sustain the claims of creditors against the estate. 2. Under an act of congress for the relief of "the estate" of a deceased claimant for the proceeds of cotton owned by him, but seized and sold by the government during the Civil War, and referring the claim of his "legal representatives" to the court of claims for adjustment, the amount recovered in such proceedings became assets of his estate, and subject to the claims of his creditors. In Error to the Court of Appeals of the State of Kentucky. The controversy in this case was between the executor and two creditors of Charles M. Briggs, and arose as follows: On April 18, 1862, during the war of the Rebellion, Charles S. Morehead, of Kentucky, executed and delivered to his nephew, Charles M. Briggs, a bill of sale of cotton in Mississippi, in these terms: "For and in consideration of money loaned and advanced heretofore by C. M. Briggs, and further valuable consideration by way of suretyship for me by said Briggs, I hereby sell and transfer to said C. M. Briggs all the cotton on my two plantations in Mississippi, near Eggspoint and Greenville. Said cotton so sold embraces all I have, baled and unbaled, gathered and ungathered. This is in19 S.C.-1 tended to cover all cotton that I have now or may have this year on said two plantations, supposed to be about 2,000 bales." At the same time Briggs executed and delivered to Samuel J. Walker, Morehead's sonin-law, a writing in these terms: "In consideration of the sale and transfer this day made to me by C. S. Morehead of all the cotton on his two plantations near Eggspoint, in the state of Mississippi, as specified in said sale and transfer in writing, I hereby assume and agree to pay to Samuel J. Walker the sum of forty thousand dollars, due and owing to said Walker by said C. S. Morehead, upon condition, however, that I realize sufficient amount from any cotton on or from said plantations or proceeds of same, together with about twenty-five thousand dollars due me from said C. S. Morehead for moneys advanced and liability for him as surety; also about ten thousand dollars, more or less, being a claim of A. S. Shotwell as he may hereafter establish against said C. S. Morehead; but, in case I should not realize sufficient to pay all of said claims or amounts above named in full, then I am to pay or divide the amount that may be realized from said cotton, proportionately or pro rata according to the respective, amounts named, to the parties above named, first, however, paying and refunding any moneys paid by the respective parties for or on account of expenses pertaining to same; and, in case more should be realized than sufficient to pay said amounts, with interest thereon to the time of realization and payment, then any surplus to be divided, onehalf to said Shotwell and C. M. Briggs Jointly for any services, and the remaining one-half to said Samuel J. Walker; but no other consideration to be paid to said Shotwell and Briggs for their service." Briggs at once took steps to get possession of the cotton, but was prevented by the Federal forces and the Confederate forces in the vicinity. This cotton, amounting to 450 bales, was finally seized, together with other cotton, by Capt. G. L. Fort, assistant quartermaster general in the United States army, in behalf of the United States, and was by him sold, and the proceeds paid into the treasury of the United States. Briggs died in 1875, after repeated and unsuccessful efforts, through his attorneys, to obtain the proceeds of the cotton in question; and his executor continued the efforts, and, through the same attorneys, procured the passage of the act of congress of June 4, 1888, c. 348, copied in the margin.1 Under the provisions of that act, Briggs' executor brought suit in the court of claims, and therein recovered the sum of $88,000. See Briggs v. U. S., 25 Ct. Cl. 126; 143 U. S. 346, 12 Sup. Ct. 391; 27 Ct. Cl. 564. Half of that sum was paid to the attorneys, pursuant to a contract between them and Briggs; and the rest, being the sum of $44,000, came to the hands of the executor. Thereupon the executor, in a suit previous 1 An Act for the Relief of the Estate of Be it enacted by the senate and house of representatives of the United States of America in congress assembled. that the court of claims is hereby given, subject to the proviso hereinafter mentioned, like jurisdiction to hear and determine the claim of the legal representatives of C. M. Briggs, deceased, for the proIceeds of four hundred and fifty-five bales of cotton, now in the treasury of the United States, alleged to have been owned, in whole or in part, by said Briggs, as is given to said court by the acts of March twelfth, eighteen hundred and sixty-three, and July second, eighteen hundred and sixty-four, upon petition to be filed in said court at any time within two years from the passage of this act, any statute of limitations to the contrary notwithstanding: provided, however, that unless the said court shall, on a preliminary inquiry, find that said Briggs was in fact loyal to the United States government, and that the assignment to him hereinafter mentioned was bona fide, the court shall not have jurisdiction of the case, and the same shall, without further proceedings, be dismissed: and provided further, that if the court shall find that the alleged assignment from one Morehead to said Briggs, of date April eighteenth, eighteen hundred and sixty-two, under which said Briggs claimed said cotton, was intended only as security to said Briggs for indebtedness, and against contingent liabilities assumed by him for said Morehead, judgment shall be rendered for such portion of the proceeds of said cotton as will satisfy the debts and claims of said Briggs to secure which said assignment was given: provided, said judgment shall not be paid out of the general fund in the treasury arising from the sale of captured and abandoned property, but shall be paid out of the special fund charged to and accounted for by Captain G. L. Fort, assistant quartermaster at Memphis, arising from the sale of the two thousand two hundred and nine bales of cotton, received by him, with which claimant's cotton was intermingled. said claimant to receive only the proportion which his cotton bears to the net proceeds accounted for by said Fort. 25 Stat. 1075. ly brought against him for the settlement of Briggs' estate, in the chancery division of the circuit court for the county of Jefferson and state of Kentucky, set up, by amended answer, that he had collected this sum of $14,000; and prayed that Walker's widow (to whom Walker had assigned his claim) and Shotwell's administrator might be made parties to the suit, and be required to set up their claims to this sum. And Mrs. Walker and Shotwell's administrator filed petitions in the cause, claiming the sums mentioned as due to Walker and to Shotwell, respectively, in the writing signed by Briggs, April 18, 1862, and above set forth. To these petitions the executor of Briggs filed supplemental answers, in which, among other things, he set up the act of congress of June 4, 1888, and the proceedings in the court of claims; and alleged that "in pursuance to the said act this defendant, through his said counsel, instituted an action against the United States in the court of claims to recover the proceeds of sale of the cotton aforesaid, and in and by said action it was finally determined and adjudged that the said testator was loyal to the United States, and that the assignment made by said Morehead to de fendant's testator was bona fide, and founded on a valuable consideration; but this defendant was, by the act aforesaid, as well as the final judgment of the court of claims, limited in his recovery to such sum as would satisfy the debts and claims of his testator, to secure which the said assignment was given; and this defendant says that by the final judgment of said court of claims he only received and recovered from the United States such sum as was owing directly to his testator by said Morehead, and did not recover anything whatsoever for or on account of anything that may have been owing by said Morehead to A. L. Shotwell or Samuel J. Walker"; and further alleged that "the passage of the act aforesaid was an act of grace on the part of the United States for the sole benefit of this defendant, and to permit this defendant to assert a claim against the proceeds of said cotton to the extent that said Morehead was indebted to his testator; that long prior thereto all claim that had existed in favor of said testator as against the United States for any part of the proceeds of said cotton had been barred by limitation, and said claim was outlawed and worthless"; and that "it was not intended by said act that this defendant should recover anything for the benefit, directly or indirectly, of any other person." The circuit court of Jefferson county sustained demurrers of the petitioners to the supplemental answers of the executor, and upon a hearing found that there was due to Walker the sum of $40,000 and to Shotwell the sum of $6.681.21; and adjudged that the sum of $44,000, in the hands of the executor, after deducting his commissions, be applied pro rata to the payment of these two sums, and 471 of the further sum of $25,000 due from Morehead to Briggs. The executor appealed to the court of appeals of Kentucky, which affirmed the judgment. 43 S. W. 479. Thereupon he sued out this writ of error. The case was submitted to this court upon a motion by the defendants in error to dismiss the writ of error for want of jurisdiction, or to affirm the judgment. Wm. Stone Abert, Charles H. Gibson, John Marshall, and D. W. Sanders, for plaintiff in error. J. P. Helm, Helm Bruce, and Samuel B. Vance, for defendants in error. *Mr. Justice GRAY, after stating the case, delivered the opinion of the court. The motion to dismiss must be overruled. An executor represents the person of the testator, and is charged with the duty of resisting unfounded claims against the fund in his hands. Co. Litt. 209a; McArthur v. Scott, 113 U. S. 340, 396, 5 Sup. Ct. 652. The record, therefore, does present the federal question whether the right given by the act of congress to the "legal representatives" of Charles M. Briggs was for the benefit of his next of kin to the exclusion of his creditors. But we are of opinion that this question, which is the only federal question in the case, must be answered in the negative, and consequently that the judgment of the court of appeals of Kentucky must be affirmed. The primary and ordinary meaning of the words "representatives," or "legal representatives," or "personal representatives," when there is nothing in the context to control their meaning, is "executors or administrators," they being the representatives constituted by the proper court. In re Crawford's Trust, 2 Drew. 230; In re Wyndham's Trusts, L. R. 1 Eq. 290; 2 Jarm. Wills (5th Ed.) pp. 957, 966, c. 29, § 5; Williams, Ex'rs (9th Ed.) pt. 3, bk. 3, c. 2, § 2 (7); Cox v. Curwen, 118 Mass. 198; Halsey v. Patterson, 37 N. J. Eq. 445. In Stevens v. Bagwell, 15 Ves. 139, 152, a claim by the next of kin of a naval officer to the share awarded him in a prize condemned after his death, and ordered by treasury warrant to be paid to his "representatives," was rejected by Sir William Grant, who said that the intention of the crown in all cases of this kind is to put what is in strictness matter of bounty upon the footing of matter of right, and not to exercise any kind of judgment or selection with regard to the persons* to be ultimately benefited by the gift; that the representatives to whom the crown gives are those who legally sustain that character; but the gift is made in augmentation of the estate, and is to be considered as if it had been actually part of the officer's property at the time of his death. In this court it is well settled that moneys received by the United States from a foreign government by way of indemnity for the destruction of American vessels, and granted by act of congress to the owners of those vessels, without directing to whom payment shall be made in case of death or insolvency, pass to the assignees in bankruptcy for the benefit of the creditors of such owners, although such assignees have been appointed before the act of congress making the grant. Comegys v. Vasse, 1 Pet. 193; Erwin v. U. S., 97 U. S. 392; Williams v. Heard, 140 U. S. 529, 11 Sup. Ct. 885. In Emerson v. Hall, 13 Pet. 409, cited by the plaintiff in error, in which money paid by the United States to the heirs at law, as "the legal representatives of William Emerson," under Act March 3, 1831, c. 102 (6 Stat. 464), was held not to be assets in their hands for the payment of his creditors, the act, in its title, was expressed to be "for the relief of the heirs of William Emerson, deceased"; and it granted the money as a reward for services, meritorious indeed, but voluntarily rendered by Emerson, not under any law or contract, and imposing no obligation, legal or equitable, upon the government to compensate him therefor; and the money was therefore held to have been received by his heirs as a gift or pure donation. In the provision of the appropriation act of March 3, 1891 (chapter 540), concerning the French spoliation claims, the words "personal representative" and "legal representative" were used to designate the executor or administrator of the original sufferer; and money awarded by the court of claims to such a representative was held by this court to belong to the next of kin, to the exclusion of assignees in bankruptcy, upon the ground that the act expressly so provided. 26 Stat. 897, 908; Blagge v. Balch, 162 U. S. 439, 16 Sup. Ct. 853. The words "legal representatives" or "personal representatives" have also been used as designating executors or administrators, and not next of kin, in acts of congress giving actions for wrongs or injuries causing death. Act April 20, 1871, c. 22, § 6 (17 Stat. 15); Rev. St. § 1981; Act Feb. 17, 1885, c. 126 (23 Stat. 307); Stewart v. Railroad Co., 168 U. S. 445, 449, 18 Sup. Ct. 105. The act of June 4, 1888 (chapter 348), now before the court, is entitled "An act for the relief of the estate of C. M. Briggs, deceased," and confers upon the court of claims "jurisdiction to hear and determine the claim of the legal representatives of C. M. Briggs, deceased," for the proceeds, in the treasury of the United States, of cotton owned by him. The only conditions which the act imposes upon the right of recovery are that the petition shall be filed in the court of claims within two years; that that court shall find that Briggs was in fact loyal to the United States, and that Morehead's assignment of the cotton to Briggs was made in good faith; and that, if it shall find that the assignment "was intended only as security to said Briggs for indebtedness, and against contingent liabili ties assumed by him for said Morehead, judgment shall be rendered for such portion of the proceeds of sald cotton as will satisfy the debts and claims of said Briggs to secure which said assignment was given." The "debts and claims," in this last clause, manifestly include both classes of debts previously mentioned, namely, the direct "indebtedness" of Morehead to Briggs, and the "contingent liabilities assumed by him for said Morehead," including the claims of the defendants in error, specified in the written agreement executed by Briggs contemporaneously with the assignment, and the amount of each of which has been ascertained by the court below. The act of congress nowhere mentions heirs at law or next of kin. Its manifest purpose is not to confer a bounty or gratuity upon any one, but to provide for the ascertainment and payment of a debt due from the United States to a loyal citizen for property of his, taken by the United States, and to enable his executor to recover, as part of his estate, proceeds received by the United States from the sale of that property. "The act is "for the relief of the estate" of Charles M. Briggs, and the only matter referred to the court of claims is the claim of his "legal representatives." The executor was the proper person to represent the estate of Briggs, and was his legal representative; and as such he brought suit in the court of claims, and recovered the fund now in question, and consequently held it as assets of the estate, and subject to the debts and liabilities of his testator to the defendants in error. Judgment affirmed. (171 U. S. 441) CALIFORNIA NAT. BANK OF SAN FRAN- SUPREME COURT-JURISDICTION TO REVIEW STATE The supreme court has no jurisdiction to review a decision of a state supreme court based entirely on grounds arising under the laws of the state, though it should appear that a question involving rights under the constitution or statutes of the United States might have been made under the pleadings. In Error to the Supreme Court of the State of California. This was an action sounding in tort, but styled "A Bill of Complaint in Equity," for an accounting and settlement of a trust by Richard P. Thomas, Robert R. Thompson, and Robert A. Wilson. The action was instituted in the superior court of San Francisco by John Chetwood, Jr., for himself and as the representative of all the stockholders of the California National Bank, which bank had failed and was at the time in the hands of a receiver. The bill alleged that the failure was due to the negligence of Richard P. Thomas, president, Robert R. Thompson, vice president, and Robert A. Wilson, a director, composing the executive committee of the corporation, who had, as such committee, contrived together to injure and deceive the said corporation by neglecting to conform to its bylaws, and, as such committee, had made worthless loans, whereby the money of the corporation was wasted, misused, and lost to the amount of about $200,000. Among the duties and powers of the committee, as set forth in the by-laws adopted by the bank, were an immediate supervision of all the officers and business of the bank, auditing all bills for current and other expenses, discounting and purchasing bills, notes, and other evidences of debt, and reporting to the directors at each regular meeting all bills, notes, and other evidences of debt discounted or purchased by them for the bank. It was further provided by the by-laws that the president should have general control and supervision of the bank, and be responsible for its condition to the directors. The vice president was to assist the president in the discharge of his duties. The bill alleged that "It was the duty of each of said members of the executive committee to exercise, concurrently with his associates on said committee, diligence and fidelIty in performing the duties of said committee," but that "they negligently permitted the cashier of said bank to control and manage the whole business of the said bank as he saw fit, and without consulting or in any wise informing said defendants," and that by reason of the negligence of said defendants, and the acts and misconduct of the cashier, negligently permitted as aforesaid, the bank suddenly failed on December 15, 1888, owing about $450,000, and the comptroller of the currency had placed a receiver in charge of said bank and its affairs, and thereafter levied an assessment of $75,000 upon the stockholders, which sum was all paid except $20,000 assessed against Richard P. Thomas, the president of the bank. The prayer of the bill was that a decree might be entered holding Richard P. Thomas, Robert R. Thompson, and Robert A. Wilson to an accounting of their trust, and that a joint and several money judgment be entered against them for the sum of $400,000, with legal interest thereon from the time of such loss. The defendants answered the bill, denying the allegations as to negligence on their part. Upon the cause being submitted to the court, a judgment was "entered in favor of the plaintiff and against Richard P. Thomas, Robert R. Thompson, and Robert A. Wilson," and the case was referred to a master, who found the actual loss of the bank to be $166,919. Before a final judgment was rendered by the court, however, the suit was dismissed by the plaintiff as to Robert R. Thompson and Robert A. Wilson, from whom had been collected the sum of $27.500, thus leaving a net loss to the bank of $139,419, and judgment for this amount was rendered against Richard P. Thomas. Thereupon Thomas appealed to the supreme court of the state of California, by which court the judgment was reversed, and the case remanded to the trial court, with directions to enter a judgment in favor of the defendant Thomas. 113 Cal. 414, 45 Pac. 704. The plaintiff thereupon sued out a writ of error to this court, assigning as the principal ground to give this court jurisdiction that the judgment of the supreme court of the state was rendered without due or any process of law, and deprived the plaintiff of its property without due process of law, contrary to the constitution, etc., and Revised Statutes (section 5136), relating to national banks. Eddy Knapp, Robert Rae, and John Chetwood, Jr., for plaintiff in error. A. H. Ricketts, for defendant in error. Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. Unless the plaintiff in error was denied some right under the constitution or statutes of the United States, "specially set up and claimed" by it, this writ of error must be dismissed. The bill of complaint filed in the superior court of San Francisco by a stockholder of the California National Bank sought to charge three directors of the bank with negligence in the performance of their trust, and particularly in failing to comply with certain bylaws of the bank, by which large amounts of money were lost to the bank, which the bill prayed that the defendants might be decreed to make good and restore. The bank was chartered under the national banking act, and the by-laws were adopted in pursuance of Revised Statutes (section 5136), which authorizes associations incorporated under the act to define the duties of the president and other officers, and to regulate the manner in which its general business shall be conducted. Certain transactions of the directors are also alleged to be infractions of Revised Statutes (section 5200), for which the directors are made liable in section 5239, although no violations of this section are specifically alleged in the bill. Demurrers were interposed by the several defendants, and overruled, when answers were filed denying in general the allegations of the bill. The court subsequently entered judgment against the three directors, but, being unable to determine the proper amount, appointed a referee to take proof of the amount appearing to be due and owing to the bank from certain named individuals. Upon such report having been made, a stipulation was entered into between the plaintiff stockholder and the defendants Thompson and Wilson, whereby the plaintiff renounced and withdrew his action against such defendants, and the court, upon such stipulation, entered a judgment dismissing the action as against them. The court thereupon made a finding of all the facts in the case, among which was one to the effect that there had been collected of the two defendants Thompson and Wilson the sum of $27,500, leaving a net loss to the bank of $139,419, for which judgment was entered against the defendant Thomas. Thomas thereupon appealed to the supreme court, of the state from the judgment so entered. *That court was of opinion that the complaint, though entitled "A Bill in Equity for the Accounting and Settlement of a Trust," contained nothing more than a charge ex delicto against the directors for a breach and nonperformance of their duties. It did not consider it necessary to dispose of the objections to the complaint, but assumed, without deciding, that the complaint was sufficient to state a cause of action in its averments of misconduct. It then proceeded to decide (1) that the complaint was one sounding in tort, and that the defendants were charged as joint tort feasors; that their negligence was pleaded as their joint neglect to perform duties not individually imposed upon them, but collectively undertaken as members of the executive committee; that in the findings of fact no mention was made of any dereliction of duty on the part of Thompson and Wilson; and that there was an absolute failure by the court to find upon the most material issues of the case,-the joint negligence of the three defendants, which alone, it was alleged, had occasioned loss to the bank. "Such," said the court, "is the cause of action pleaded in the complaint. The findings, if it be conceded that they give evidence of a meritorious cause of action against the defendant Thomas, do so because of a showing that he was negligent, not with the other defendants and as member of the executive committee, but that he was individually and separately negligent in the performance of his duties as president. But this is not the cause of action pleaded against him, and it is well settled that, where the case made out by the findings is a different case from that presented by the pleadings, the judgment will be reversed; for the relief decreed must be the relief sought, and a variance, even if it be such as could have been cured by amendment, is fatal to the validity of the judgment." The court further held (2) that, as the defendants in error were sued jointly for a tort, a withdrawal of the action in favor of Thompson and Wilson operated also to release the defendant Thomas. This was in fact the main reason given for its conclusion. The court thereupon ordered the judgment to be reversed, and the cause remanded, with directions to enter judgment in favor of the defendant Thomas. *In all this record there was no federal right* specially set up or claimed by the plaintiff in error until after the judgment in the su preme court, when a petition for writ of error was filed by the California National Bank, |