DECISIONS

OF THE

DEPARTMENT OF THE INTERIOR

RICHARD M. LYMAN, JR.

Decided July 7, 1932

SOLDIERS' ADDITIONAL HOMESTEAD RIGHT-ASSIGNMENT-WIDOW; MINOR CHIL

DREN.

No right of additional entry under sections 2306 and 2307 of the Revised Statutes inures to the minor children of a soldier who never made a homestead entry and whose widow had remarried prior to and was the wife of another at the date of adoption of the Revised Statutes, notwithstanding the fact that such widow, during her widowhood and prior to the adoption of the Revised Statutes, may have made a homestead entry for less than 160 acres of land.

DIXON, First Assistant Secretary:

This is an appeal by Richard M. Lyman, Jr., from decision of the Commissioner of the General Land Office dated May 6, 1932, rejecting his application, as assignee of Julia E. Carney, daughter, and one of the two surviving heirs of Eliza Bump, widow of Hiram Bump, to enter, under sections 2306 and 2307 of the Revised Statutes, the NW14SE4 Sec. 14, T. 21 N., R. 4 E., M.D.M., California.

The application is based upon the military service of Hiram Bump, and the homestead entry No. 4415 of his said widow, made August 12, 1869, for the SESE4 Sec. 30, T. 6 N., R. 15 W., Ionia land district, Michigan. Said application was filed February 12, 1932, and was rejected primarily because the tract applied for had previously been withdrawn under the provisions of the Federal Water Power Act of June 10, 1920 (41 Stat. 1063). The decision under review also held, on authority of the case of Henry Fred Dangberg (43 L.D. 544), that the additional right in question never existed, and on the record presented this is the sole question for determination, the appellant conceding that the land was not subject to location.

The record shows that Hiram Bump rendered the requisite military service and died on or about January 12, 1866, without having made a homestead entry. He left a widow, the said Eliza Bump, and three minor children, two of whom survive. As above stated, the said widow, on August 12, 1869, which was prior to the adoption of the Revised Statutes, made homestead entry No. 4415 for 40 acres

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of land in her own right as the head of a family. She remarried in November, 1869, and so far as the record shows she remained the wife of her second husband until her death in 1897.

The assignment from Julia E. Carney assumes that her mother, the said Eliza Bump, became entitled to an additional homestead right of 120 acres, and that the said Julia, as one of the surviving heirs, succeeded to a moiety (60 acres) of the right.

In the Dangberg case, cited by the Commissioner, the Department held (syllabus)—

No right of additional entry under sections 2306 and 2307 of the Revised Statutes inures to the minor children of a soldier who never made a homestead entry and whose widow had remarried prior to and was the wife of another at the date of the adoption of the Revised Statutes, notwithstanding the fact that such widow, during her widowhood and prior to the adoption of the Revised Statutes, may have made a homestead entry for less than 160 acres of land.

It is contended in the appeal that the ruling thus enunciated is wrong; that inasmuch as an entry was made by the soldier's widow for less than 160 acres of land a right of additional entry accrued, and upon the death or remarriage of the widow without having exercised the right, the full benefit thereof inured to the soldier's minor children.

After careful consideration the Department sees no sufficient reason for changing its ruling on this question. The soldier, who died without having exercised a right of homestead, never had an additional right, the additional right conferred upon the soldier by section 2306 being dependent upon the fact that he had previously entered a quantity of land less than 160 acres under the homestead law. If the soldier had not made a homestead entry for less than 160 acres, the right to make an additional entry never existed in him or in his estate. (William Deary, 31 L.D. 19; Homer E. Brayton, 31 L.D. 443; Inkerman Helmer, 34 L.D. 341.) The widow of the soldier could, upon the basis of an original entry made by herself prior to the adoption of the Revised Statutes, so long as she remained unmarried, assert an independent, additional right, but the statute confers the right upon the widow upon the express condition that she be unmarried. (John S. Maginnis, 32 L.D. 14; Henry S. Kline, 36 L.D. 311.)

In the case last cited the Department reviewed numerous adjudged cases bearing upon the question involved, and said—

The cases cited and all other cases touching the existence of such additional right in favor of a widow of a soldier hold in effect that it is only in case such widow was unmarried at date of the legislation conferring the right, that she was vested therewith. No case is found which expressly or impliedly recognizes such right as existing or arising in favor of a soldier's widow who was not unmarried at date of the act which bestowed it. The reason is that it was a compensatory gift to her as the relict and representative of the

soldier, and in recognition of his military service. If she were remarried that sole reason for bestowing the right upon her no longer existed.

In the present case the widow remarried prior to the passage of the act and was married at its date and until her death. Hence said widow never became entitled to an additional homestead right under sections 2306 and 2307 of the Revised Statutes.

The decision of the Commissioner is accordingly

RICHARD M. LYMAN, JR. (ON REHEARING)

Decided February 17, 1933

Affirmed.

SOLDIERS' ADDITIONAL HOMESTEAD RIGHT ASSIGNMENT REMARRIAGE OF WIDOW— STATUS OF MINOR CHILDREN OF SOLDIER.

Under the provisions of Section 2307 of the Revised Statutes, the minor children of the soldier are disqualified to make a soldiers' additional entry if the soldier's widow remarried prior to June 22, 1874, the date of the adoption of the Revised Statutes, even though prior thereto and after the death of the soldier she had made an original homestead entry of less than 160 acres.

PRIOR DECISION REAFFIRMED.

Departmental decision in case of Henry Fred Dangberg (43 L.D. 544) adhered to.

DIXON, First Assistant Secretary:

Motion for rehearing has been filed on behalf of Richard M. Lyman, Jr., in the matter of the Department's decision dated July 7, 1932, affirming the action of the Commissioner of the General Land Office of May 6, 1932, in rejecting Lyman's application, as assignee of Julia E. Carney, daughter and one of the two surviving heirs of Eliza Bump, widow of Hiram Bump, to enter under sections 2306 and 2307 of the Revised Statutes certain land in the Sacramento, California, land district.

As stated in the motion for rehearing the question presented is as follows:

The only point involved in this case is whether the minor children of a soldier of the civil war whose widow made a homestead entry of less than 160 acres prior to June 22, 1874, and who remarried prior to the enactment of the soldier additional laws are entitled to a soldier additional right under the provisions of secs. 2304, 2306, and 2307, R.S.

It is conceded in the motion that the widow had no right because of her remarriage, but it is urged that the children were entitled as donees of the right under section 2307.

In the case of Henry Fred Dangberg (43 L.D. 544) cited by the Department in the decision complained of, the identical question was considered. In that case the Department said:

This case has been fully argued before the Department, orally and in briefs. After mature consideration, the Department is convinced that no right of