On January 12, 1904, Auditor received a letter from Mrs. N. Murphy, in Ireland, claiming to be sister of soldier, and requesting effects of deceased. On January 13, 1904, Auditor replied

"That payment of the amount due the soldier at date of his death may be made to his father upon proper application and evidence that the soldier left no widow or child surviving him. I inclose a blank application for use of the father if he desires to collect the amount due. Payment can not be made to you as sister while the soldier's father is alive."

On February 9, 1904, Auditor received formally executed application by Michael Coggins, father.

On March 4, 1904, settlement was made by Auditor in favor of said Michael Coggins, father, Kennard, Enniscrone, County Sligo, Ireland, and payment made as stated above.

On June 4, 1904, Auditor received a letter from Messrs. Tracey, Cooper & Townsend, attorneys, representing said uncle, stating that letters of administration with the will annexed had been awarded by the surrogate's court of Albany County, N. Y., to the uncle, Michael Quinnan, upon the estate of Patrick Coggins, the deceased soldier, and inclosing certified copy of letters, decree of probate, and certified copy of letter of soldier referred to above admitted as a will of personal property.

On June 8, 1904, Auditor replied to said attorneys advising of the allowance of the amount due the estate to the father. On June 13 and 24 letters of protest were received from said attorneys, and on June 25, 1904, they were advised that the administrator as such should file a claim in that office.

This was done on July 1, 1904, and on July 9, 1904, the Auditor formally disallowed his claim for the reasons quoted above, and it is from this disallowance that the administrator now appeals.

It appears that a long-continued practice has prevailed in the Auditor's office of paying amounts of less than $500 due the estate of a deceased soldier directly to his next of kin without the requiring of administration and in order to avoid the expense incident thereto. Where an administrator has been appointed to administer upon the estate, however, it was and is the duty of the Auditor to pay any amount due said estate to said administrator as the legal representative of the

soldier, in preference to the claim of the next of kin. (MS. Dec., vol. 18, p. 660.)

In this case payment was made to the father as next of kin before the issuance to the uncle of letters of administration with the will annexed. Negligence can scarcely be imputed to the uncle in procuring said letters; and if his appointment be a valid one, he is entitled as administrator to receive the amount due the estate of deceased, notwithstanding the fact that payment has already been made to the father.

The letters appear regular on their face; and if the surrogate's court at Albany, N. Y., had jurisdiction to issue them, their legality, in so far as this office is concerned, is not a subject of inquiry. (Simons v. Saul, 138 U. S., 439; Fouvergne v. New Orleans, 18 How., 470; Gaines v. New Orleans, 6 Wall., 642; Franklin Co. v. German Savings Bank, 142 U. S., 93; Herron v. Dater, 120 U. S., 464; Veach v. Rice, 131 U. S., 293; section 2473, Vol. III, Bliss Ann. Code, N. Y.) If, however, administration was granted by the surrogate without jurisdiction, said letters are absolutely void. (Peters v. Peters, 8 Cush., 543; Thayer v. Winchester, 133 Mass., 447; Jeffersonville R. R. Co. v. Swayne's Admr., 26 Ind., 477; King v. United States, 27 Ct. Cl., 533; Matter of Zerega, 58 Hun., 505.)

Jurisdiction is the power to hear and determine a cause. Section 2476, Vol. III, Bliss N. Y. Ann. Code, 1895, provides that

"The surrogate's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases:

"1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere."

*

*

Two things, therefore, are essential to confer jurisdiction upon the surrogate, viz, a will, and the residence of the testator at date of death in the county of the surrogate, or, in other words, jurisdiction of the person and of the subject-matter.

Residence, generally speaking, is the place of fixed or permanent abode; in the case of a soldier, his abode prior to his entry into the service. The evidence on this point is rather meager,

but is to the effect that the soldier was an unmarried man, a native of Ireland, that he had uncles living at Troy and Watervliet, N. Y., and that he originally entered the service at Albany, Albany County, N. Y., the county of the surrogate granting the letters. The presumption is that Albany County was his residence in this country, in the absence of any showing to the contrary, and that the court had jurisdiction of the person of the deceased.

The only question remaining is the determination of whether or not there was, in fact, a will.

A will is defined under the New York laws to be an instrument intended to pass an interest in property, not to have any operation until after death. (Matter of Will of Dize, 50 N. Y., 88.) Its testamentary character depends on its substance, not on its form. (Carle v. Underhill, 3 Brad., 101.)

That a letter of the nature of the one in this case is testamentary in its character and admissible to probate in the State of New York, notwithstanding it is holographic and informal, is established by the following cases: Botsford v. Krake, 1 Abbott's Prac. Rep. (new series), 112; Morrell v. Dickey, 1 Johns. Ch. (N. Y.), 153; Matter of Delaplaine, 45 Hun., 235; Matter of Beebe, 6 Dem. (N. Y.), 43.

The supreme court of the State of New York having interpreted its laws to mean that a letter of the nature of the one in this case is a will or subject-matter over which its surrogates have jurisdiction, said determination is binding on the accounting officers.

The jurisdiction of the surrogate's court being conceded, the legal representative appointed thereby, to wit, Michael Quinnan, is entitled to receive the amount due from the Government to said soldier. (Holt v. United States, 29 Ct. Cl., 56.)

Soldier received in full from army paymasters the minimum pay of his grade, together with longevity increase, and clothing, from May 24, 1902, date of his enlistment, to June 30, 1903, together with 20 per cent increase of his minimum pay from July 1, 1902, date of his departure for the Philippines, to June 30, 1903, date of last payment made to him.

His administrator is now entitled to receive for the period from July 1, 1903, to August 3, 1903, date of his death, the minimum pay of his grade, together with longevity increase

and 20 per cent of his minimum pay, amounting to $30.36, less 14 cents asylum tax, $30.22.

He is further entitled to have the 20 per cent increase pay allowed to the soldier under the act of March 2, 1901 (31 Stat., 903), computed on the minimum pay of his grade with continuous-service increase, instead of upon the minimum pay alone. (United States v. Mills, decided by Supreme Court March 13, 1905; In re Voiles, decided by this office March 16, 1905.) The difference, $15.72, being 20 per cent of $6 per month from July 1, 1902, date of departure for Philippines, to August 3, 1903, date of death, thirteen months and three days, is now allowed.

He is further entitled to receive balance of clothing due deceased, $52.46; deposits and interest due deceased, $310.55, and for effects paid over to Major Carleton, $29.27. From amount due should be deducted 21 cents for ordnance tax.

Amount now allowed, as per certificate of differences sent to Auditor, $438.01, being

Minimum pay, longevity pay, and 20 per cent increase on minimum pay, July 1, 1903, to August 3, 1903, less 14 cents asylum

tax.

Difference between computation of 20 per cent increase pay on minimum pay alone and on minimum pay with continuousservice increase, being 20 per cent of $6 per month from July 1, 1902, to August 3, 1903, thirteen months and three days............... Clothing pay unpaid at date of death

Deposits and interest due deceased..

For effects of deceased paid over to Major Carleton

Less ordnance tax

$30.22

15.72

52.46

310.55

29.27

438.22

.21

438.01

The amount evidenced by the Auditor's settlement, $422.43, was at least a part of the deceased soldier's general estate. The soldier died on August 3, 1903, in the Philippine Islands. On March 4, 1904, less than one year from the date of soldier's death, settlement was made in favor of the father of the deceased soldier, and with full knowledge that there was an adverse claim being made to the amount due the soldier from the Government. Just why the Auditor will persist in making settlements in favor of heirs of a soldier under such circumstances, resulting, as in this case, in a double payment,

is beyond my comprehension, and would seem to be without adequate excuse or justification.

The only safe way is to require administration, especially when the amount is in excess of $200, the limit fixed by the Secretary of the Treasury for payments of pension checks by order of Auditor for the Interior Department, dated March 15, 1905, without administration, and where less than said. amount such evidence should be required as to prevent double payments.

ERROR IN DESCRIPTION IN ACT MAKING APPROPRIATION FOR PAYMENT FOR SPECIFIC SERVICES.

When an appropriation is made for the payment of a stated amount to a person therein named for specific services or materials already furnished, the fact that the act contains a misdescription of the services or materials furnished will not warrant the withholding of payment of the amount appropriated.

(Decision by Comptroller Tracewell, June 2, 1905.)

In the deficiency act of March 3, 1905, appears under the title "Indian affairs" the following provision:

"For payment to W. H. Marshall, of St. George, Utah, for forty-three thousand feet of flooring and five thousand feet of lumber, furnished the superintendent of the Southern Utah School for the Shebit Indians during July, nineteen hundred and four, being for the fiscal year nineteen hundred and five, three hundred and forty-three dollars and eightyfour cents." (33 Stat., 1236-1237.)

A voucher in favor of W. H. Marshall, dated March 21, 1905, certified by the superintendent and special disbursing agent of the Southern Utah School, shows delivery by Marshall at said school in July, 1904, of lumber for the Shirwits Indians as follows:

1,342 ft. battens, @ $34.50 per M.....

$46.30

297.54

343.84

The voucher thus prepared and certified was allowed by the Commissioner of Indian Affairs April 25, 1905, and forwarded to the Auditor for the Interior Department for settlement under the provision in the act of March 3, 1905, supra.