x999-1" type="majority"> *345 Fowler, J.,

delivered the opinion of the Court:

In the latter part of the eighteenth century the firm of S. Smith & Buchanan, of Baltimore, Maryland, was largely engaged in mercantile transactions both at home and abroad. In the year 1798 this firm suffered losses by the unlawful seizure of ships and cargoes in which it was interested, and it is for the injury thus sustained that the plaintiff in this case secured the payment of thirty-six thousand dollars to her as the administratrix of William B. Buchanan. The bill filed by her asks a Court of equity to take jurisdiction to direct and supervise the distribution of the fund among the parties whom the Court may find to be entitled to participate therein according to the proportion and rule which it may declare should govern the same. The fund, which has thus been brought into a Court of equity for distribution among those legally and equitably entitled thereto, represents two claims, generally known as' “ French Spoliation Claims.” The origin and history of these claims have been set forth in several of the reported cases, especially in Blagge v. Balch, 162 U. S. 461, one of the most recent in which the Supreme Court of the United States has construed the Acts of Congress relating to the subject-matter of this litigation, so that it will not be necessary here to do more than to say that these claims arose out of illegal seizures and depredations by French cruisers upon American commerce. The persons who thus lost property and their descendants claimed that through the effect of a subsequent treaty between the United States and France, the former had assumed the payment of compensation for their losses. But it was not until 1885 that an Act of Congress was passed providing that “ such citizens of the United States or their legal representatives as had valid claims to indemnity upon the French Government arising out of the illegal captures * * * * and confiscations prior to the ratification of the convention between the United States and the French Republic, concluded on the 13th September, 1800,” * * * might apply to the Court of Claims within two years from the passage of the Act. It was especially provided, however, that the findings of the Court of Claims should not *346 be conclusive either upon the United States or the claimants, and that nothing in the Act should be construed as committing the former to the payment of any such claims.

It was under this Act of 20th January, 1885, that the plaintiff filed several petitions in the Court of Claims, based upon the seizure and confiscation of two vessels, the Jane and Patapsco and their cargoes. The vessels were owned by Samuel Smith and James A. Buchanan in their individual capacities and the cargoes by the firm of which they were the sole members. Both losses occurred in 1798. It appears from the the evidence that William B. Buchanan, the plaintiff’s intestate, was not born until 179 5, so that he was only three years old when the losses occurred, and can hardly be presumed, in the absence of evidence, to have been a member of the firm at that time. If he was not a member of the firm when the losses were sustained he, of course, was not an “original sufferer,” and it is contended by the defendants that he and his representatives are therefore excluded from claiming in that character — and that Samuel Smith and James A. Buchanan, who at that time were the sole partners of the firm which sustained the loss, are the only “original sufferers.” It appears from the evidence that the plaintiff’s intestate did not become a member of the firm until 1818. The Court below held, however, that inasmuch as the plaintiff had made the claim in the character of administratrix of William B. Buchanan, surviving partner of the firm, and the fund had been paid to her in that capacity, the defendants are estopped to deny her pretensions and that, therefore, the fund in her hands should be divided into three equal parts, one of such equal parts to go and be distributed to the next of kin of each of the three partners of the firm. It was also held by the Court below that the distribution should be made according to the provisions of the Maryland Statute of Distribution.

From the decree embodying these views, all the defendants have appealed on the ground that the fund should be divided equally between Samuel Smith and James A. Buchanan, the “original sufferers” and the original members of the firm of S. *347 Smith & Buchanan. The second appeal was taken by J. Louis Smith and others on the ground that the distribution should not be made under our statute per stirpes, büt that all are to take as a class equally.

The case was earnestly and exhaustively argued on both sides, but it does not seem to us that any serious questions are presented by either appeal.

I. The first appeal involves the question whether William B. Buchanan is entitled to share in the distribution of the fund as one of the original sufferers, because he was erroneously supposed to have been a member of the firm of S. Smith & Buchanan in 1798, and because the plaintiff, as his administratrix was allowed to collect the money in question, whereas the real claimant should have been the personal representative of James A. Buchanan, who was the surviving partner of the firm as it existed in 1798.

Aside from all other views, it seems to us too clear for controversy that if it be conceded, as it must be under the evidence, that the plaintiff’s intestate, William B. Buchanan, was not one of the original sufferers, she will not be allowed in a Court of equity to participate in the distribution, except as one of the next of kin of James A. Buchanan. For it is apparent, not only from the Acts of Congress under which these claims have been recognized and paid by the government, as well as by the most recent decision of the Supreme Court of the United States, (Blagge v. Balch, supra), that the money paid for losses sustained was intended as a gratuity to the next of kin of the original sufferers who shall be living at the time the Act was passed, viz., 3rd March, 1899. The mere fact that the claim was filed by the plaintiff in her name and as administratrix, &c., is immaterial The whole record shows beyond question that she represented with their consent all the parties who are now claiming against her. But it.is contended that the judgments and findings of the Court of Claims in connection with the action of Congress are conclusive, and that, therefore, all are bound by the decision of that Court that the plaintiff was, in fact, the administratrix of Wm. B. Buchanan, and that he *348 was the survivor of the firm, and that, therefore, he was one of the original sufferers.

We cannot, however, agree to this view. On the contrary it seems to us clear from a careful inspection of the record that the question as to whether the plaintiff was, in fact, the proper formal party to file the petition in the Court of Claims was never suggested to or considered by that Court. Indeed, it seems to have been conceded on all hands, and properly so, that she was the representative of the surviving member of a firm. But the mistake was in assuming that her intestate was a member of the firm as constituted at the time of the losses. Nor does it appear that this mistake was discovered until after the filing of the bill in this case, when it was learned from the testimony of the plaintiff that her intestate was an infant only three years old in 1798, and therefore could not have been.a member of the firm of S. Smith & Buchanan when the losses were sustained. Nor do we think the Act of Congress, of 1899 appropriating money to pay these and other claims imparted to the reports or findings of the Court of Claims any element of finality — except as to the amount of loss sustained by the original sufferers. In the case of Blagge v. Balch, supra, Chief Justice Fuller thus quotes with approval from Buchanan v. U. S., 24 Ct. of Cl. 74—81. When the amount of the claim has been determined and reported, “ it will then be within the legislative discretion—

“(1) To ascertain through the proper committees who are the persons who should receive the money.; or

“(2) To provide for the ascertainment of that fact by additional legislation ; or

“(3) To confide the money to the. administrators '* * * * trusting that they and the Courts of which.they are the officers and agents will distribute the fund among * * * next of kin of the original claimants ”—

In our opinion Congress adopted the last course in passing the Act of 1899, whereby money was appropriated and db rected to be paid to the plaintiff as administratrix. In none of the cases relating to “ French Spoliation Claims,” under the *349 Act of 1885, has the Court of Claims “ assumed to determine who were the next of kin of a deceased claimant * * * *. In other words, the Court has not assumed to determine what persons are legally or equitably entitled to receive the money which Congress may hereafter appropriate for the discharge of these claims.” Blagge v. Balch, supra. And finally, by the very terms of the Act itself, the findings are only advisory and do not fix or attempt to fix judicially the rights of any person. As was suggested in Buchanan v. U. S., supra, Congress might have ascertained through the proper committees or have provided by legislation for the ascertainment of the beneficiaries, but they did not exercise that power by the Act of 1899, which appropriated money to pay the claims. The case of United States v. Gilliat, 164 U. S. 44, was relied on to show the conclusiveness of the finding of the Court of Claims in cases under the Act of 1885 and of that Court’s certificate to the Treasurer of the United States as to the proper person to be paid. But an examination of that case will show that it is not in point. The Court of Claims in Gilliat's case was acting under the specific Act of August 23, 1894, which the Supreme Court held on appeal, made the decision and certificate of the former Court final, but at the same time declared that its findings in cases like these now before us under the provisions of the Act of 1885 are only advisory. We conclude, therefore, that there is nothing either in the finding and certificate of the Court of Claims or in the legislation of Congress which estops the defendants from showing who were the original sufferers, nor from showing that in point of fact Wm. B. Buchanan was not a partner of the firm of S. Smith & Buchanan in 1798, when its property was destroyed and the loss incurred.

II. We have already referred to the fact that Wm. B. Buchanan was born in 1795, and of course he could not have been in the ordinary sense of that term a partner in 1798. But in addition to this convincing fact it is shown that James A. Buchanan, the junior member of the original firm, in a deposition made in insolvency proceedings in 1821, said his son, *350 Wm. B., was taken into the firm in 1818. In this same deposition he also said that certain old accounts which had been closed and had been unexpectedly collected had been used by his senior partner, Samuel Smith and himself in equal portions. In the year 1820 the firm consisting of S. Smith, Jas. A. Buchanan and his son, Wm. B., failed, and executed a deed of trust to Thomas 'Ellicott and Jonathan Meredith. These trustees, in a memorial addressed to the commissioners appointed under a treaty of 1819, stated that Samuel Smith and James A. Buchanan, trading as the firm of S. Smith & Buchanan, were, in the year 1797, owner of one-half of the Jane and suffered the losses in question. These facts point strongly to the conclusion that up to the year 1818 Wm. B. Buchanan had no interest in the firm. In fact, the only ground to sustain even a supposition to the contrary is the mistake made by the plaintiff and by those who conducted the case before the Court of Claims. If the mistake had been called to the attention of the Court of Claims the proceedings would undoubtedly have been amended, or as in the case of The Clio, 27 Ct. of Cl. 221, that Court would have said that inasmuch as it appeared that the administratrix in fact represented the descendants and next of kin of the original claimants, and that she was prosecuting the claim with their knowledge, and at their request, the technical error of taking out letters of administration upon the estate of a subsequent member of the firm, that is, of one who was not a member of the firm when the loss was sustained “will not preclude the Court from rendering a decision upon the merits and reporting the case to. Congress.” Indeed all the decisions relating to these Spoliation Claims appear to rest upon the rule that as provided by the jurisdictional Act of January 20, 1885, the Court of Claims was “ to examine and determine the validity and amount of all claims included within the description” contained in the Act, and, as was said in United States v. Gilliat, 164 U. S. 45, the particular person to whom the appropriation already made by Congress was to be paid was a “ subsidiary question.”

If, however, as we hold, the defendants are not estopped by *351 the findings or certificates of the Court of Claims, and if, as we have also held, there is nothing in the Acts of Congress to prevent the Courts of this State from now correcting the mistake made by those who instituted the proceedings, can there be any doubt that when the plaintiff has come into a Court of equity asking that the fund may be distributed to those entitled, that the distribution will be made to the real beneficiaries— namely, the next of kin of Samuel Smith and James A. Buchanan living March 3, 1899 — the date of the passage of the Act making the appropriation ? As is said by counsel for defendants in their brief, the plaintiff “asks equitable relief, puts the fund under the jurisdiction of the Court of equity, and prays it may be distributed according to equity.” “To make the distribution in the manner now suggested by her counsel on her behalf and divert one-third of the fund away from the lawful course and appropriate it to herself and her brother, because of the accidental advantage given by her position as collector and trustee, and the manner in which the proceeding for its collection was, by mistake, shaped by counsel, who intended to act for the common benefit of all interested * * * * would enable a trustee to abuse her position and commit a breach of trust. • It would make the Court go contrary to the rule under which its doors are opened — that he who seeks equity must do equity. It would not accord with the prayer of the bill. ”

III. The question as to the proper rule of distribution of the fund is presented by the second appeal, and we will briefly consider it. It would seem, however, that since the decision of the Supreme Court of the United States in the case of Blagge v. Balch, supra, construing words in Act of 1891 precisely the same as those in Act of 1899 there can be little or no room for further discussion upon this subject. It was there said “ that Congress in order to reach the next of kin of the original sufferers, capable of taking at the time of distribution, on principles universally accepted as the most just and equitable, intended next of kin according to the statutes of distribution of the respective States of the domicil of the *352 original sufferers.” The Supreme Court of the United States having therefore so clearly declared what is the proper construction of the Act of Congress it is our duty to follow it— and the result is that the fund must be distributed according to the provisions of our Statute of Distribution per stirpes and not per capita.

(Decided January 17, 1901.)

IV. It appears from the evidence that one of Samuel Smith’s daughters, Mary Buchanan Smith, married a British subject, John Mansfield, and resided in England until her death. Her husband is also dead. They left a number of children surviving them, but how many, if any, are now alive is not known. The question whether the descendants of Mrs. Mansfield are entitled to share in the distribution of the fund was not passed upon by the Court below, and is not properly before us on these appeals, although counsel representing some of the defendants argued it both in their brief and orally. When the cause is remanded this question may properly be presented to and passed on by the Court below.

It follows that the decree appealed from must be reversed in so far as it directs the fund to be divided into three equal parts and directs one of those parts to be distributed to Wm. B. Buchanan and affirmed as to the rule of distribution adopted-

Decree reversed in part and affirmed in part. Cause remanded, costs to be paid out of fund.

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