Fogg v. Perkins

19 N.H. 101 | Superior Court of New Hampshire | 1848

Woods, J.

The act of Congress of June 19, 1840, provides “ that in case any male pensioner shall die, leaving children but no widow, the amount of pension due to said pensioner, at the time of his death, shall be paid to the executor or administrator on the estate of such pensioner, for the sole and exclusive benefit of the children, to be by him distributed among them in equal shares, and the same shall not be considered as a part of the assets of said estate, nor liable to be applied to the payment of the debts of said estate in any case whateverand “ that in case any pensioner who is a widow shall die, leaving children, the amount of pension due at the time of her death, shall be paid to the executor or administrator, for the benefit of her children, as directed in the foregoing section.”

And it is further enacted that in either of those cases, “ the amount of the pension may be paid to any or each of the children, as they may prefer, without the intervention of the executor or administrator.”

There can be no doubt, upon the reading of this statute, that upon the decease of the testator, the amount of pension due to her became the property of her children. The statute does not touch the case of a pensioner who may die childless, but leaves whatever may be due to such to follow the general and. ordinary course of law. But in a case like the present, the gift is strictly limited to the children, of whom the plaintiff is one, and never vested for a moment in the executor. The statute simply designates the person who may receive the money, and pay it over to the children, provided they do not elect each to receive it for himself, or to appoint one of their number to do so. Pie is distinctly precluded from mingling it with the property of the deceased, and is limited to the mere agency of receiving it and paying it over to the parties whom the law entitles to it. In this particular, the statute pursues the general policy of the pension laws, in guarding, as far as possible against undue influences, the first objects of the public bounty, and in confining its benefits to those objects while they exist, and afterwards to those whom nature points out as their most fit successors. In this instance, it jealously removes it from the reach of the testamentary power, lest dotage and infirmity should by some means be imposed upon.

There seems no objection to the form of action. Money has rightfully come to the hands of the defendant, for the use of the plaintiff and two others, in equal parts. It is subject to no contingencies, no prior charges or conflicting claims. The plaintiff demanded his share; it was not paid; and a right of action, therefore, accrued. There must,therefore, according to the agreement, be

Judgment for the plaintiff.