Administrators upon an estate who were appointed in the Cherokee
nation had a right to maintain a suit or prosecute a claim for
money in the District of Columbia, and a payment to a person acting
under a power of attorney from them would have been valid.
But where this person, instead of receiving the money under his
power of attorney, took out letters of administration in the
District of Columbia, and then signed a receipt as attorney for
money paid by himself as administrator to himself as attorney for
the Cherokee administrators, this receipt is good, and the surety
upon his administration bond is not responsible to the Cherokee
heirs.
The Cherokee nation are so far under the protection of the laws
of the United States, that they may be considered, for the purposes
above named, as a state or territory of the United States.
The case is stated in the opinion of the Court.
MR. JUSTICE McLEAN delivered the opinion of the Court.
The action was brought against the defendant as surety in the
administration bond of Austin J. Raines, administrator of Samuel
Mackey, late of the Cherokee nation.
Raines received from James Mackey, Joseph Talley, and Preston T.
Mackey, as administrators of Samuel Mackey, deceased, a power of
attorney for them and in their names to petition the Congress of
the United States to settle and release the claim of the United
States against the said Samuel Mackey, deceased, as principal, and
John Drenner, Lewis Evans, and Hiro T. Wilson, as securities, and
after the passage of any law in relation
Page 59 U. S. 101
to said claim by Congress, to receive all moneys that may be due
the estate of the said Mackey, deceased, from the Treasurer of the
United States, and full receipts, acquittances, and relinquishments
thereof to make in their name, and further to adjust and settle
with the Treasurer of the United States or other officers of the
government all other claims of said Mackey against the United
States, and to receive all moneys due from the United States to
said Mackey on any account whatever.
Raines came to Washington and procured a settlement of the
accounts between the government and Samuel Mackey, deceased, but
the Treasury Department refused to pay him the balance due Mackey
upon the power of attorney, and required him to take out letters of
administration. He thereupon applied to the Orphans' Court of the
County of Washington, in the District of Columbia, for letters of
administration, which were granted upon his executing bond, with
the defendant and James Reeside as sureties. He then received from
the Treasury the sum of $10,513.05, out of which he paid the
expense of administration, and for the balance he executed the
following receipt:
"7th July, 1841. Received of Austin J. Raines, administrator of
Samuel Mackey, deceased, the sum of ten thousand five hundred and
thirteen dollars and five cents, being the amount due to the
representatives next of kin and distributees of said Samuel Mackey,
from said administrator."
"Signed,"
"JAMES MACKEY"
"JOSEPH TALLEY"
"PRESTON T. MACKEY"
"By their attorney in fact, A. J. RAINES"
Reeside, the co-obligor in the administration bond, having died
several years ago, the process was served only on the
defendant.
The declaration contained several counts, stating that the said
Samuel Mackey died intestate, leaving Sarah Mackey, his widow, and
James Mackey, Preston T. Mackey, William Mackey, George Mackey,
Nancy Talley, wife of Joseph Talley, and Corine Mackey, all being
citizens of the Cherokee nation, and that, by the laws of said
Cherokee nation, the widow and children were distributees of the
deceased.
The defendant filed a general plea of performance, on which
issue was joined.
On the trial before the jury, among other prayers for
instruction was the following:
"If the jury find from the evidence that Austin J. Raines, as
administrator of Samuel Mackey, deceased, received from the
Treasury of the United States the sum of $10,513.05, and after
deducting the expenses of administration there remained in his
hands the clear sum of $10,505.20 1/2,
Page 59 U. S. 102
and no debts of said deceased are shown payable by said
administrator; and James Mackey, Joseph Talley, and Preston T.
Mackey were the original administrators of said Samuel Mackey,
under the laws of the Cherokee nation, the burden of proof is on
the defendant to show that said Raines paid said sum of $10,505.20
1/2 to said James Mackey, Joseph Talley, and Preston T. Mackey, or
the survivors of them; and although the jury may find that the
paper offered in evidence, purporting to be a power of attorney
from said James Mackey, Joseph Talley, and Preston T. Mackey to
said Raines is genuine, yet the said Raines had no authority to
receipt for said parties by himself, as their attorney in fact, to
himself as administrator, and that such receipt is not a payment by
him as administrator of said parties, and unless such payment be
proved otherwise than by such receipt, the said Raines has not
performed the condition of this bond as administrator of Samuel
Mackey, and the said defendant is liable in this action to the said
James Mackey, Joseph Talley, and Preston T. Mackey, or the
survivors of them, for the said sum of $10,505.20 1/2, with
interest thereon from the date when the same was received,"
which instruction was refused, and to which an exception was
taken.
There were other exceptions, but this one presents the material
points in the case.
By the treaty made between the United States and the Cherokee
nation, dated March 14, 1835, in article 5, the United States
covenanted and agreed that
"The lands ceded to the Cherokee nation in the foregoing article
shall in no future time without their consent be included within
the territorial limits or jurisdiction of any state or territory.
But they shall secure to the Cherokee nation the right of their
national councils to make and carry into effect all such laws as
they may deem necessary for the government and protection of the
persons and property within their own country belonging to their
people, or such persons as have connected themselves with them,
provided always that they shall not be inconsistent with the
Constitution of the United States, and such acts of Congress as
have been or may be passed regulating trade and intercourse with
the Indians"
&c.
The Cherokees are governed by their own laws. As a people, they
are more advanced in civilization than the other Indian tribes,
with the exception, perhaps, of the Choctaws. By the national
council their laws are enacted, approved by their executive, and
carried into effect through an organized judiciary. Under a law
"relative to estates and administrators," letters of administration
were granted to the persons above named on the estate of Samuel
Mackey, deceased, by the probate court, with
Page 59 U. S. 103
as much regularity and responsibilities as letters of
administration are granted by the state courts of the Union.
This organization is not only under the sanction of the general
government, but it guarantees their independence, subject to the
restriction that their laws shall be consistent with the
Constitution of the United States, and acts of Congress which
regulate trade and intercourse with the Indians. And whenever
Congress shall make provision on the subject, the Cherokee nation
shall be entitled to a delegate in the national legislature.
It is refreshing to see the surviving remnants of the races
which once inhabited and roamed over this vast country as their
hunting grounds, and as the undisputed proprietors of the soil,
exchanging their erratic habits for the blessings of
civilization.
A question has been suggested whether the Cherokee people should
be considered and treated as a foreign state or territory. The fact
that they are under the Constitution of the Union, and subject to
acts of Congress regulating trade, is a sufficient answer to the
suggestion. They are not only within our jurisdiction, but the
faith of the nation is pledged for their protection. In some
respects they bear the same relation to the federal government as a
territory did in its second grade of government under the ordinance
of 1787. Such territory passed its own laws, subject to the
approval of Congress, and its inhabitants were subject to the
constitution and acts of Congress. The principal difference
consists in the fact that the Cherokees enact their own laws, under
the restriction stated, appoint their own officers, and pay their
own expenses. This, however, is no reason why the laws and
proceedings of the Cherokee territory, so far as relates to rights
claimed under them, should not be placed upon the same footing as
other territories in the Union. It is not a foreign, but a domestic
territory -- a territory which originated under our Constitution
and laws.
By the 11th section of the act of 24th of June, 1812, it is
provided
"That it shall be lawful for any person or persons to whom
letters testamentary or of administration hath been or may
hereafter be granted, by the proper authority in any of the United
States or the territories thereof, to maintain any suit or action
and to prosecute and recover any claim in the District of Columbia
in the same manner as if the letters testamentary or administration
had been granted in the District."
Under this law, the money due to Mackey might have been paid,
and, indeed, should have been paid, to Raines, the attorney in fact
of the administrators of Mackey. But, through abundant caution,
letters of administration were required to be taken out in this
District as a prerequisite to the payment of the money by the
Treasury Department.
Page 59 U. S. 104
No question could arise as to the validity of the Cherokee law
under which letters of administration were granted on the estate of
Mackey, and as the power of attorney given by the administrators to
Raines seems to have been duly authenticated and proved, a payment
to the administrator by the government would have been a legal
payment. The Cherokee country, we think, may be considered a
territory of the United States within the act of 1812. In no
respect can it be considered a foreign state or territory, as it is
within our jurisdiction and subject to our laws.
Although an executor or administrator cannot sue in a foreign
court in virtue of his original letters of administration, yet he
may lawfully, under that administration, receive a debt voluntarily
paid in any other state.
Stevens v. Gaylord, 11 Mass. 256.
In
Doolittle v. Lewis, 7 John.Ch. 49, Chancellor Kent held
that a voluntary payment to a foreign executor or administrator was
a good discharge of the debt.
Shultz v. Pulver, 3 Paige
182;
Hooker v. Olmstead, 6 Pick. 481.
This suit is brought in the name of the surviving administrators
of Mackey and of the distributees. Regularly, an action by the
distributees could not be sustained unless an application had been
made to the orphans' court in this District to order a
distribution, and authorize or direct the administrator, Raines, to
pay the same. This administration being ancillary to that of the
domicile of the deceased, the distribution would be governed by the
law of the domicile.
There appears to have been no creditors of the estate of Mackey
in the District of Columbia, and letters of administration were
obtained here, as necessary under the decision of the Treasury
Department. This object being accomplished, and the costs of the
administration paid, Raines, as agent of the administrators of the
domicile, receipted for the money in their behalf under the power
of attorney from the administrators. And the question arises
whether this discharges the defendant as surety on the
administration bond of Raines.
Under the power of attorney, he was authorized to receive all
moneys that may be due the estate of Mackey from the Treasurer of
the United States, and receipt for the same. He received and
receipted for the money as administrator in this district, and then
executed a receipt to himself as agent, under the power of attorney
as agent for the administrators.
Under the circumstances, it would be a hardship fraught with
injustice to hold the defendant liable as surety on the
administration bond. Raines was the confidential agent of the
administrators of Mackey -- the money was placed in his hands,
under full authority to receive it. It has never been paid
over,
Page 59 U. S. 105
it is said, by reason of the bursting of a boiler, by which
Raines lost his life and the money which he had received. But
whether this be true or not, the money went into the hands of
Raines, who was the agent of the administrators duly authorized to
receive it, and we think, under the peculiar circumstances of the
case, the defendant was thereby discharged. Whether for the payment
of creditors or distribution among the heirs, the domicile of the
deceased was the place to which the money should be transmitted. It
would add to the conditions of the administration bond to hold the
defendant responsible for the safe transmission of the money after
it was placed in the hands of the agent of the administrators.
Had the receipt of Raines been duly filed and acted upon in the
court of probate, his surety on his administration bond would have
been discharged. The action of the probate court only is wanting,
but we think such action was not essential, and that the equity of
the case is equally clear without it. The parties are estopped from
denying the agency of Raines.
In
Vaughan v.
Northup, 15 Pet. 6, this Court said:
"The debts due from the government of the United States have no
locality at the seat of government. The United States, in its
sovereign capacity, has no particular place of domicile, but
possess in contemplation of law an ubiquity throughout the Union,
and the debts due by it are not to be treated like the debts of a
private debtor, which constitute local assets in his own domicile.
On the contrary, the administrator of a creditor of the government,
duly appointed in the state where he was domiciled at the time of
his death, has full authority to receive payment, and give a full
discharge of the debt due to his intestate in any place where the
government may choose to pay it."
We think there is no error in the ruling of the court, and the
judgment of the circuit court is therefore
Affirmed.
JUSTICES NELSON and CURTIS stated that they concurred in the
decision of the Court to affirm the judgment of the circuit court
upon the ground that, as no final account had been settled by the
administrator in the orphans' court, and no order had been made by
that court either directing the administrator to pay the balance in
his hands to the principal administrators, for distribution by
them, or directing a distribution to be made here, there was no
breach of the bond. That this being an ancillary administration, it
depended upon the discretion of the orphans' court, which granted
it, whether the money, remaining in the hands of the ancillary
administrator, after the satisfaction of all claims in this
jurisdiction, should be distributed here, by the ancillary
administrator, or remitted to the principal administrators for
distribution, and until that discretion shall be exercised
Page 59 U. S. 106
and the ancillary administrator directed which of these courses
to pursue, he is in no default, and his surety is not liable.