Nutt v. Forsythe

84 Miss. 211

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinion

Calhoon, L,

delivered the opinion of the court.

Each of these cases is determinable on the same reasoning. In each 'the only question is whether or not the chancellor properly overruled appellant’s demurrer to the separate bills filed by appellees. Each bill is to require the administrator d. b. n. c. t. a., the appellant, to pay complainants below, appellees here, a distributive share under the will of Haller Nutt, deceased. The first (No. 11,143) is based on the will of Mrs. Caroline Marble, sole heir of. Carrie Nutt Forsythe, a deceased intestate daughter of Haller Nutt, which will of Mrs. Marble gave to appellees Elizabeth H. and Mary A. Forsythe “all the property, real and personal, of which I shall be at the time of my decease possessed, or to which I may be in any way entitled, and wherever the same may be situated.” The second (No. 11,144) is based on a bequest in the will of Mary Ella Nutt, a daughter of Haller Nutt, of “all that I die possessed of to my sisters, Julia W. Nutt and Lillie Nutt Ward, also all interest in the claim against the United States government,” etc. The third (No. 11,145) is based on the will of Haller Nutt, Jr., a son of Haller Nutt, which will gives his brother, S. P. Nutt, appellee, one-half of his share “of that certain claim No. 1,851 styled Julia A. Nutt, Executrix of Haller Nutt, deceased, v. the United States, in the Court of Claims,’ ” and the other half the will gives to Annie Coleman, appellee. All three of these cases are here from a decree overruling demurrers to the bills. There is but one question in all the cases which we think worthy of any serious consideration, and that will develop from those facts stated in the bills and the agreement of counsel as to what, in addition, may be considered in arriving at a conclusion.

Haller Nutt, the common ancestor of the parties, was a citizen and resident of Natchez, Miss., but had very large possessions in the state of Louisiana, and was, for these parts, and at the time of the origin of the claim which is the cause of all these controversies, a man of very great wealth. During the war between the states he was known to 'be unmistakably not only an opponent of secession and of the Southern Confederacy, but absolutely devoted to the Union and the cause of the Federal government. He was so devoted, and to such an extent, that he welcomed the invasion of the Union armies. This was well known to Gen. Grant and all of his subordinate officers. In the operations of that commander against Vicksburg, the properties of Mr. Nutt in Louisiana were occupied by tbe United States army, but put under safeguards. These safeguards were, because of his well-known loyalty, ordered by Gen. Grant, Gen. Sheridan, Gen. McPherson, and Gen. Gresham. According to Brig. Gen. McKee, who commanded the first of the Union forces to enter Natchez, Mr. Nutt “was the first man to step forward and welcome” them. By the reports of committees of the United States Senate appointed to investigate this very claim, propounded first in 1866, by Julia A. Nutt, widow of Haller Nutt, and then executrix of his will, it is shown that the Federal army was compelled, by necessity, to disregard the safeguards, and appropriate supplies of enormous value. It is shown that, if damage by destruction of property could be considered, such as houses, gins, 750 bales of cotton, etc., the loss was $1,000,000 or more. But, excluding these, and considering only quartermaster and commissary supplies, it is shown that the claim largely exceeded $100,000. In all, there have been four payments on this since it was first presented from 1866 to date — the three first to the estate of Haller Nutt, and distributed as assets; and the last, $89,-999.89, recently paid to the administrator d. b. n. c. t. a. of that estate, and which is the subject of the present litigation. It is important to note the language of the act making the appropriation of this last-named sum. It appears in an omnibus appropriation bill to several hundred claimants, some to individuals named, some to “heirs,” some to “next of kin,” etc., and is in these words: “To James O. Williams, administrator of Haller Nutt, deceased, of Adams county, $89,999.89” —figures written. Williams died, and John K. Nutt is now the administrator, and the children of Haller and Julia A. Nutt, through the administrator, contend that because they happen to be now alive they should have the whole sum to the exclusion of the legatees of the three children who happened to die before this last payment was made. We do not think so. The claim was in prosecution for thirty years, recognized as just by the great military leaders, by the quartermaster general, and great statesmen on congressional committees, and certain it is, in the line of the reasoning in Williams v. Heard, 140 U. S., 529, 11 Sup. Ct., 885; 35 L. ed., 550; and Price v. Forrest, 173 U. S., 427-429; 19 Sup. Ct., 434; 43 L. ed., 749, that the government was under the highest moral obligation to pay it, and this is recognized. If the matter were between individuals, the right of recovery would have been clear. This is not a case where the appropriation was to “heirs,” as. in Emerson v. Hall, 13 Pet., 409; 10 L. ed., 223, or to “next of kin,” as in Blagge v. Balch, 162 U. S., 439; 16 Sup. Ct., 853; 40 L. ed., 1039; nor is it a case where no appropriation has yet been made, as in the case of Campbell v. United States, 28 Ct. Cls., 512. Here the appropriation has been made, and made specifically to the administrator with the will annexed, and must be intended to be designed as estate assets for distribution to creditors, and, when they are paid, to heirs living and representative of heirs dead, according to the laws of distribution.

Affirmed.