[ 115. ]

"RIGHTS TO BOUNTY LAND WARRANTS NOT DEVISABLE.-Soldiers entitled to bounty lands under the act of 11th February, 1847, but who have not received warrants therefor, cannot dispose of their rights to such land or scrip by will.

"The statute expressly directs, in cases of the death of soldiers before their warrants shall have issued, that they shall be issued in favor of, and enure to, the benefit of their families or relations, according to certain rules of priority; and further provides that the land shall not be in any wise affected or charged with, or subjected to, the payment of any debt or claim incurred by such soldiers prior to the issuing of such certificates or warrants."

ATTORNEY GENERAL'S OFFICE, June 28, 1850.

SIR The question you have submitted to this office, upon the 9th section of the act of the 11th February, 1847, (Session Laws, p. 125,) has been considered. It is, whether the soldier to whom bounty is promised by this section can dispose of it by last will, when he dies before the certificate or warrant issues to him? I think not.

The construction of the Pension Office has, I understand, been uniformly in accordance with this view; and, in my opinion, that construction is the proper one. Neither the words of the law, nor its object, admit of any other. In the contingency of the death, which the question assumes, the direction of the law is positive that the "certificate or warrant shall be issued in favor and enure to the benefit of his (the soldier's) family or relations," according to certain prescribed rules of priority.

The supplementary act of the 27th of May, 1848, (Session Laws, p. 232,) changes these, but not so as to affect this question.

It also directs that "all sales, mortgages, powers, or other instruments of writing, made or executed prior to the issue of such warrant or certificate, shall be null and void to all intents and purposes, whatsoever," and that the land shall not, in the hands of the family, "be in any wise affected by or charged with, or subject to, the payment of any debt or claim incurred by the soldier prior to the issuing of such certificate or warrant."

The clear design was to secure the bounty to the family of the deceased in all cases where that event should occur antecedent to the actual grant to him of the title. The whole was but bounty. It was for Congress to give it at once and absolutely to the soldier, or qualifiedly, or conditionally. They have manifestly designed to vest the entire bounty in the family in all cases of death before, by being actually granted to the ancestor, it becomes thereby absolutely vested in him. With this view, they not only, in such a contingency, provide that the certificate and warrant shall "be issued in favor and enure to the benefit" of the family or relatives, but that it shall not in any way be responsible in their hands for "any debt or claim" of the ancestor, previously incurred, or be affected by any kind of contract or conveyance which he may have made.

The terms in which this last provision is made are sufficiently comprehensive to embrace a devise, as well as a disposition to

take effect in the lifetime, and, of course, exclude the bounty from its operation.

I am clear, therefore, in the opinion that the construction of the Pension Office is the correct and the only one of which the section is susceptible. REVERDY JOHNSON.

To the SECRETARY OF THE INTERIOR.

[116.]

"PENSIONS TO WIDOWS OF REVOLUTIONARY SOLDIERS.-The representatives of a widow of a revolutionary soldier, who received a pension under the act of 7th July, 1838, from the period of her husband's death to her own, have no claim for further payment on the pretence that her pension should have commenced at an earlier date.

"The pension having been a personal bounty to the widow herself, and the decision fixing the time for its commencement having been acquiesced in by her, it cannot now be contested by her representatives.

"All that passes to them on the death of a widow receiving a pension is the money which shall have actually accrued to her, and remains unpaid, for a pension allowed."

OFFICE OF THE ATTORNEY GENERAL, August 28, 1850.

SIR: In your letter of the 21st instant, you are pleased to propose for my advice the following question: "Are the representatives of a widow who died prior to the passage of the joint resolution of August 16, 1842, entitled to the benefit of the act of July 7, 1838?"

It would be difficult to answer the question in the general and abstract form in which it is put. But you inform me that it grows out of the case of Polly Knight, and refer me to the report of the Commissioner of Pensions and other papers connected with her case. From that report I have been enabled to learn the matter of controversy, and the particular point to which your general question was intended to apply.

It appears that Dr. John Knight was a pensioner for revolutionary services under the act of the 15th of May, 1828; that his pension was paid up to the 12th of March, 1838, when he died; that his widow, Polly Knight, under the act of July 7, 1838, applied for and obtained a pension in April, 1839, commencing at the time of his death, according to the practice of the Pension Office as it existed at the time; that pension was fully paid up to the time of her death, which happened before the passage of the resolution of the 16th of August, 1842, and before the expiration of the five years for which it was granted, computing from the death of her husband, on the 12th of March, 1838. These are the only facts necessary to a decision of the case, according to the views I have taken of it.

Upon the above state of facts, the representatives of Mrs. Knight, since her death, contend that she was entitled to a pension under the act of 1838; that it ought to have been allowed to her from the 4th of March, 1836, and not from the death of

her husband, on the 12th of March, 1838; and that they are now entitled to receive the amount of pension that would have accrued to her from the 4th of March, 1836, to the 12th of March, 1838.

The single question is, whether this is a legal and valid claim? My opinion is, that it is not, and that the claim ought to be disallowed.

Had Mrs. Knight been entitled to a pension to commence from the 4th March, 1836, yet having, during her life, acquiesced in the decision of the proper officer giving it a different commencement, her representatives have no right, as it seems to me, to contest that matter after her death. The pension was intended as a personal bounty to her, and not as a gratuity to her representatives. All that passed to them on her death was a right to have the money which had accrued under her pension as it had been actually allowed, and which remained unpaid at the time of her death. J. J. CRITTENDEN.

To the SECRETARY OF THE INTERIOR.

II.

DECISIONS OF SECRETARIES

IN RELATION TO

MILITARY PENSIONS AND LAND BOUNTIES.

[ 1. ]

Applicant for a pension not entitled thereto, unless he has been mustered in the United States service.

WAR DEPARTMENT, October 4, 1821.*

SIR: Your letter, enclosing the papers of Thomas Pendexter, has been received. It appears, from the documents in this case, that the applicant, while a recruit and at the rendezvous, was taken sick, and was sent to a house which was occupied as an hospital, where the surgeon administered some medicine which was so violent in its operation as to cause an abdominal hernia. Pendexter not having joined his regiment previous to his being attacked by the sickness, his claim cannot be allowed; no one being entitled to a pension, under the laws providing for invalids, who has not been mustered into the service of the United States, and joined regiment or corps. The papers of Mr. Pendexter have been, agreeably to the regulations of the Department, placed on the files of the Pension Office with other rejected cases. Hon. JOHN HOLMES, Alfred, Maine.

J. C. CALHOUN.

[ 2.]

Pensions shall commence at the completion of the testimony.

WAR DEPARTMENT, PENSION OFFICE, December 11, 1822.

SIR: In answer to the inquiry as to what has been the practice in cases of invalid pensioners placed on the list by special acts of Congress, as to the time of commencing the pensions, I have to state that the pension has been made to commence (so far as I have been able to ascertain by a reference to the files) at the date of the last deposition made in support of the claim. The 4th section of the act of the 10th of April, 1806, requires the pension

It would seem that the records of the War Department furnish no decisions in relation to pensions anterior to this date.

to commence on the day when the claimant shall have completed his testimony before the authority proper to take the same. The 2d section of the act of the 4th February last declares that the pension shall commence at the time of completing the testimony pursuant to the act thereby revived.

Hon. J. C. CALHOUN, Sec. of War. [Indorsement.]

J. L. EDWARDS.

WAR OFFICE, December 11, 1822. In pension applications hereafter, the rule adopted by Congress, within alluded to, will be adhered to.

[ 3. ]

J. C. CALHOUN.

Proof of identity required in cases where the pension has not been claimed for one

year or more.

WAR DEPARTMENT, June 19, 1824.

No payment will in future be made to any pensioner, either in person or by attorney, who has not applied for his pension for one year or more, without the production of evidence of his identity; the proof will consist of the certificate of a magistrate in the county in which the pensioner resides, setting forth either that he knows the applicant to be the identical pensioner named in the original pension certificate, which he must exhibit to the magistrate, or that it has been satisfactorily proven before him that he is such pensioner; the signature of the magistrate to be certified under the seal of the court of the county.

JAMES L. EDWARDS, Esq.

J. C. CALHOUN,

[ 4.]

To obtain a pension, disability must have occurred in the line of duty.
SURGEON GENERAL'S OFFICE, July 15, 1824.

SIR: In reply to your inquiry relative to the persons considered to be entitled to pensions, I am directed by the Secretary of War to state, that the law is understood to embrace only those who have been injured in the service of the United States, while actually employed in duties peculiar to them as soldiers; or from exposure to inclemencies of the weather at the posts, or stations at which they may have been put on duty; or, while on the march to such stations. Such complaints or injuries, therefore, as are merely the effect of time, or of peculiarity of constitution, or are produced by accidents to which they would have been equally liable in their ordinary occupations in civil life; or which have occurred by their own fault, cannot of course entitle to a pension from the United States.

JOS. LOVELL, Surgeon General.

DR. T. G. MOWER, Surgeon U. S. Army.