Under the act of Congress passed on the 2d of June, 1832,
providing for the relief of certain surviving officers of the
Revolution, and its several supplements, the word "children" in the
acts embraces the grandchildren of a deceased pensioner, whether
their parents died before or after his decease. And they are
entitled, per stirpes,
to a distributive share of the
deceased parent's pension.
The history of the case is given in the opinion of the
MR. JUSTICE McLEAN delivered the opinion of the Court.
This case was commenced by filing a bill in Sumner County before
Chancellor Ridley in which the complainants state they are the
children of Priscilla Cotton and Thomas Cotton, who was a captain
in the revolutionary war; that after his death, his widow,
Priscilla, filed her declaration for a pension, on account of her
husband. Josiah Walton made the application, but she died before
the pension was granted. Walton administered on the estate, and he
renewed the application at great trouble and expense. The Pension
Department allowed about one-half the amount claimed. Out of the
money drawn by the administrator, he retained what was agreed for
his services and the services of counsel, and paid over the
residue, in equal shares, to all the children of Priscilla Cotton
and the representatives of her children who were dead.
The bill further represents that William E. Jones, who acts as
an agent for pension claims, and Allen Cotton, with the view of
getting the business and money into their hands, applied to the
County Court of Davidson County, and suppressed from said court the
fact that an administration on said estate had been granted in the
County of Sumner and procured Allen Cotton to be appointed as
administrator, which was done with the view of depriving the
complainants and others of a legal portion of said pension
The new administrator made application for the extension of the
pension, so as to cover the whole time from the allowance
Page 60 U. S. 356
of the pension to the death of the pensioner, only one-half of
which had been granted. The application was successful, and Jones,
under a power of attorney from the administrator, received the sum
of $3,500 from the government, which the defendants retain in their
hands and refuse to pay over, three-fifths of the amount of which
the complainants are entitled to if the children who died before
the decease of their mother be not entitled to any share, and
three-eighths, should they be entitled.
The answer admits many of the allegations of the bill, but
denies that the defendants acted improperly in procuring
administration in Davidson County. They admit that they applied for
and obtained the above sum, with a full knowledge by the Pension
Office of the prior administration. The money was paid to them as
the only living children of Priscilla Cotton at the time of her
death, and they allege that, this being the construction of the
government, it is conclusive.
The chancellor, on the final hearing, decreed that the
representatives of Arthur Cotton, John Cotton, and Polly Foxall,
were entitled to three-fifths of said $3,500, and interest, to be
paid over to said children, and that said defendants, Noah Cotton,
Allen Cotton, and William E. Jones, who have received said fund,
are liable to pay over said three-fifths of $3,500, amounting to
$2,100, with interest as aforesaid, to be paid over to the children
of Polly Foxall, one-third, to the children of Arthur Cotton,
one-third, and to the children of John Cotton, one-third, after
paying the costs and expenses of their suit, the costs to be paid
out of the fund in the hands of the defendants.
From this decree, there was an appeal to the Supreme Court of
Tennessee, which, on a hearing, reversed the decree of the
chancellor, holding that the fund should be distributed among the
living children at the time of the pensioner's death and that no
part of it should go to the representatives of deceased
As the complainants claim a right under an act of Congress which
by the decree of the supreme court has been rejected, the case is
brought within the twenty-fifth section of the Judiciary Act, which
gives us jurisdiction.
The first section of the act entitled "An act supplementary to
the act for the relief of certain surviving officers of the
Revolution,'" dated June 4, 1832, gave pensions to surviving
officers, noncommissioned officers, musicians, soldiers, and Indian
spies who had served in the Continental line or state troops,
volunteers, or militia, at one or more terms -- a period of two
years -- during the war of the Revolution &c., and
Page 60 U. S.
Cotton was entitled to receive his full pay, not exceeding
the pay of a captain in the line, from the 4th of March, 1831,
during his natural life. The fourth section of the same act
provided that the amount of pay which accrued under the act before
its date should be paid to the person entitled to the same as soon
as may be, and in case of the death of any person embraced by the
act or of the act to which it is supplementary, during the period
intervening between the semiannual payments directed to be made and
the death of such person, shall be paid to his widow, or, if he
leave no widow, to his children.
The Act of July 4, 1836, in the first section, gives five years'
half-pay to widows, or children not sixteen years of age, under
certain circumstances. If the soldier had died since the 4th March,
1931 and before the passage of that act, the pension which had
accrued during these periods is given by the second section to the
widow, and if no widow, to the children. The Act of the 7th July,
1838, extends the benefits of the third section of the act of 1836
to widows whose husbands have died since the passage of the act.
The Act of 19 July, 1840, enacts, in the first section, that any
male pensioner dying leaving children and no widow, the pension due
shall be paid to his children, and that it shall not be considered
assets of said estate.
The second section provides, when a female pensioner shall die,
leaving children, the amount due at the time of her death shall be
paid to her representatives for the benefit of her children. And
the third section declares
"That on the death of any pensioner, male or female, leaving
children, the amount due may be paid to anyone or each of them, as
they may prefer, without the intervention of an administrator."
The question in the case turns upon the construction of these
statutes. Does a right construction of them give the pension due to
the grandchildren of the deceased pensioner, and if so does the
bounty extend to the representatives of his children who died
before his decease, or do the acts restrict the bounty to his
children living at the time of his death? This last construction
has been adopted and acted upon by the government.
This view is mainly founded on the considerations that on the
death of the pensioner, the bounty is given to his widow, and if he
leave no widow, to his children; that it was a bounty of the
government arising from personal considerations of gratitude for
services rendered, is not liable to the claims of creditors, and
should not be extended by construction to persons not named in the
Page 60 U. S. 358
The pension is undoubtedly a bounty of the government, and in
the hands of an administrator of a deceased pensioner it would not
be liable to the claims of creditors had the acts of Congress
omitted such a provision. But the legislative intent is shown to be
in accordance in this respect with the law. But should the word
"children," as used in these statutes, be more restricted than when
used in a will? In the construction of wills, unless there is
something to control a different meaning, the word "children" is
often held to mean grandchildren. There is no argument which can be
drawn from human sympathy to exclude grandchildren from the bounty,
whether we look to the donors or to the chief recipient.
Congress, from high motives of policy, by granting pensions,
alleviates, as far as they may, a class of men who suffered in the
military service by the hardships they endured and the dangers they
encountered. But to withhold any arrearage of this bounty from his
grandchildren, who had the misfortune to be left orphans, and give
it to his living children on his decease would not seem to be a fit
discrimination of national gratitude.
Under the construction given by the department, if a male
pensioner die leaving no widow or children but grandchildren, the
pension cannot be drawn from the Treasury. This would seem to stop
short of carrying out the humane motive of Congress. They have not
named grandchildren in the acts, but they are included in the
equity of the statutes. And the argument that the pension is a
gratuity, and was intended to be personal, will apply as well to
grandchildren as to children.
There can be no doubt that Congress had a right to distribute
this bounty at their pleasure, and to declare it should not be
liable to the debts of the beneficiaries. But they will be presumed
to have acted under the ordinary influences which lead to an
equitable, and not a capricious, result. And where the language
used may be so construed as to carry out a benign policy within the
reasonable intent of Congress, it should be done.
On a deliberate consideration of the above statutes, we have
come to the conclusion that the word children, in the acts, embrace
the grandchildren of the deceased pensioner whether their parents
died before or after his decease. And we think they are entitled,
to a distributive share of the deceased
This construction does not correspond with the decree of the
chancellor, nor with that which was expressed by the supreme court
in reversing his decree. The decree of the Supreme Court of
Tennessee is therefore
Reversed, and the case
Page 60 U. S. 359
is directed to be transmitted to that court that the views
here given may be carried into effect in the ordinary mode of
proceeding by that court.
MR. JUSTICE DANIEL, MR. JUSTICE CURTIS, and MR. JUSTICE
MR. JUSTICE CURTIS dissenting.
I cannot concur in so much of the opinion just delivered as
construes the word "children," in this act of Congress, to mean
children and grandchildren. The legal signification of the word
"children" accords with its popular meaning, and designates the
immediate offspring. Adams v.
17 How. 419, and cases there cited. It may be
used in a more enlarged sense to include issue, but the intention
so to employ it must be manifested by the context or by the subject
matter. I see nothing in the context or the subject matter of this
act to carry the meaning of the word "children" beyond its ordinary
signification. Nothing has been suggested save the conviction felt
by some members of the Court that grandchildren are proper subjects
of this bounty of Congress. This consideration is, in my opinion,
too indeterminate to enable me to construe the act to mean what it
has not said.
MR. JUSTICE DANIEL and MR. JUSTICE CAMPBELL concurred in the
above opinion of MR. JUSTICE CURTIS.