1st. If he died before the date of the warrant, then the name of his "widow" should be stated in that certificate, if there be one, whose assignment will be sufficient in the ordinary form. 2d. If no widow, that fact should appear in the certificate of the Probate Court, showing the names of the heirs, and only heirs-at-law, of the claimant, naming such as are adults, and such as are minors. If all are adults, then their simple transfer is all that is required on the warrant, to which the certificate of the Probate Court must be appended; if some, or all, are minors, they may assign by their guardians, whose letter of guardianship should also be appended. 3d. If the claimant died after the date of the warrant, then the title thereto descends according to the law of domicil. In this class of cases, if the claimant died intestate, there should be a certificate from the Probate Court, giving the names of the heirs, and only heirs-at-law, who, if adults, may assign, as in ordinary cases; and if minors, may assign by guardians, as aforesaid. If the warrantee died testate, a certified transcript of the will should be annexed, with an assignment by the legatees, or by the executors, where the will does not specifically dispose of the warrant; but in that case a transcript of the letters testamentary must accompany the transfer. 4th. Or, in any of the foregoing cases of intestacy, the warrant may be assigned by the administrator of the decedent, as his legal representative, "for the use of the heirs only;" but the assignment must be accompanied by a certified copy of the letters of administration. 5th. In virtue of the second section of said Act of 3d June, 1858, warrants under the Act of 1855, as well as those issued under previous laws, may be applied to lands "which are subject to entry at a greater minimum than" $1 25 per acre, by the locator paying, "in cash, the difference between the value of such warrants at $1 25 per acre, and the tract of land located on." Thus, for example, a one hundred and sixty acre warrant may be located on one hundred and sixty acres at $2 50 per acre, and the difference, $200, paid in cash, or two warrants of eighty acres each, or four warrants of forty acres, may be applied to a one hundred and sixty acre tract, each, however, to be located on a specific legal subdivision of the one hundred and sixty acres, and the difference, $200, must in all cases be paid in cash. 6th. In regard to all pre-emptions, at one dollar and twenty-five cents per acre, it is held, that a pre-emptor may use one, two, or more warrants in locating the land pre-empted, each warrant to cover a specific subdivision of the land, that is, a forty acre warrant must be located on a specific forty acre tract, an eighty on an eighty acre tract, and so on. When a subdivision is fractional, and overruns the number of acres called for by the warrant, the fractional excess must be paid for in cash. In all respects, except so far as qualified by the foregoing, the circular and its forms of 3d May, 1855, will govern in regard to bounty land war rants. The following general sections are added for the information of parties interested. 7th. Patents for bounty land locations are issued in the exact order of date of location; and are sent to the District Land Office for delivery, unless, before the transmission, a party files, in this Office, the duplicate certificate, when the patent will be sent to such address as the owner may indicate. 8th. When the duplicate certificate is lost, the patent will be delivered, upon the patentee filing in this Office his affidavit, stating the fact of its loss, and that it was not assigned by him, and that he is the present bona fide owner of the land. 9th. When an original warrant which had been assigned is lost, and a duplicate warrant is issued in lieu of it, a new assignment must be endorsed thereon from the warrantee, or in default of that, a decree of title must be obtained from a court of competent jurisdiction, and a transcript thereof appended to the duplicate warrant. THOS. A. HENDRICKS, Commissioner. Approved, J. Thompson, Secretary of the Interior. No. 618. A warrant issued after the death of a Claimant who left a widow and children, enures to the widow. Where the deceased claimant was a widow, the Warrant enures to the benefit of her heirs or legatees. Heirs are those who are so declared by the law of the Claimant's domicil. ATTORNEY-GENERAL'S OFFICE, Sir: I have considered carefully the questions which you have submitted on the construction of the law of June 3, 1858, which provides that the title to a land warrant, issued after the death of the person who lawfully applied for it, "shall vest in the widow, if there be one, and if there be no widow, then in the heirs or legatees of the claimant." What is the meaning of the quoted words? Finding among the papers of the case a very able and ingenious argument, by the Commissioner of Pensions, in favor of the opinion that these words are not to be taken in their ordinary legal sense, but construed by reference to the previous laws on the subject, and having some reason also to believe that you yourself incline to the same view, I have examined the whole system of pensions and bounty lands with some anxiety to reach the same conclusion. But it has been all in vain. The more I look at it, the more clearly I see that every established rule of interpretation supports the opposite doctrine which the head of the land office has propounded. The heirs of a man are those persons who are entitled by the lex rei sitæ, to take his inheritable real estate at the time of his death. His legatees are those to whom he has bequeathed his personal property by will. Heirs sometimes means children, in common parlance, and the word is to be so understood in a statute, when the context shows that intention to have been in the mind of the legislature. But I am not aware that any reason exists here for taking it in a sense different from that in which it is usually and properly accepted. This act of Congress, then, vests the land in the persons to whom the claimant may have left it by will, and if he has died intestate, then it goes to his heirs; that is, to the persons who are entitled to claim his real estate by the intestate laws. I do not see anything in the general policy of the previous laws, which would justify us in giving the Act of 1858 a construction not warranted by its plain words. It is true, that all acts on the same subject are to be construed as in pari materia, but where the words of a later act differ from those of an older one, the later act must prevail, and give the rule in all cases to which it applies. We are never to suppose that Congress has not changed its mind when it changes its expression of its will. It is not the older act that qualifies the later, as the Commissioner of Pensions seems to think. The rule is exactly the reverse. Nor is there any absurdity or injustice in the law if construed according to the words. A claimant of bounty land proves his right, gets his warrant, and dies. It passes by his will, or goes to his heirs or to his next of kin, if there be no will provision which directs that if it be issued after his death, and if he leaves no widow it shall go in the same way. the wrong of that? Where is You cannot refuse to let heirs and legatees have the land which the law gives them, on the ground that it is unconstitutional. It is constitutional. It does not take away any vested right. It is bounty and not title. Every bounty land and pension law has proceeded on that principle. If it were unconstitutional, you have no right to veto it, whatever power the courts might have to declare it void. The Commissioner of Pensions intimates that the construction may interfere with the vested rights of those to whom the land would have gone under the previously existing laws. It is clear to me that no bounty land law, nor no pension law vests the title to land or money in the grantees, until they actually receive such bounty or pension. A manifest proof of this is found in the fact that Congress has always, without objection, named the persons to whom it shall go, in case of the death of the soldier before receiving it. This could not be done by Congress, if it were a vested right in the soldier from the date of the law. If it be not vested in the original object of the government's bounty, much less is it vested either after his death or before, in the persons to whom Congress has limited it over in the event of his failure to receive it during his life-time. It is not worth while now to discuss the vexed question whether Congress has the power to divest a right which has once attached under its own act. If it were unconstitutional, the judiciary might declare it to be void; but I do not see upon what principle a department can veto a law which has been passed by both houses of Congress, and received the sanction of the Chief Executive Magistrate. In reply to your propositions, I shall therefore say :— 1. That a warrant issued after the death of a claimant who left a widow and children, enures to the widow's benefit alone. 2. Where the deceased claimant was a widow with two sets of children, the warrant enures to the benefit of her heirs or legatees. 3. Heirs are those who are so declared by the law of the claimant's domicil. Yours, very respectfully, J. S. BLACK. Hon. Jacob Thompson, Secretary of the Interior. No. 619. Where duplicate Warrants have been issued, the original being outstanding, and it is shown that the party to whom the duplicate was delivered, was the owner of the original warrant, the Commissioner refuses to certify ownership. GENERAL LAND OFFICE, October 12, 1854. Sir-Agreeably to your directions of the 4th instant, endorsed on the letter from F. A. Kownslar, of Lexington, Missouri, of the 23d ultimo, I have the honor to submit the following, in relation to the subject-matter contained in Mr. Kownslar's letter. Where duplicate warrants have been issued by the Pension Office, the original being outstanding, and alleged to be lost, or stolen, and proof is made that the party to whom such duplicate was delivered, was the owner of the original warrant, I have refused to endorse them as the property of such person, for the reason, that the proof of such ownership is wholly ex parte, and further, that the office would be bound by such endorsement to satisfy the duplicate warrant in the hands of an innocent assignee, who had purchased on the faith of that endorsement, even if the original had been presented in the meantime, and it was found that the duplicate had been obtained by fraud. When the alleged owner produces satisfactory evidence of ownership, and guarantees such duplicate warrant to his vendee, he will have no difficulty in disposing of it, if his guaranty is sufficient. In such cases, where the original and duplicates are both presented for patenting, we suspend both, till the ownership is settled judicially between the parties; if we certified the duplicates, we would be bound to satisfy them as aforesaid, and the United States would have to search out the fraud, or satisfy both. In the former cases the parties prosecute, in the latter the United States. In the case now presented, the party holding the warrant, will be permitted to locate it, on satisfactory proof of ownership to the land officers, and on that proof, the patent will issue in due course, if the original is not presented in the meantime. The letter from Mr. Kownslar, is herewith returned. I am, very respectfully, Your obedient servant, JOHN WILSON, Commissioner. Hon. Robert M'Clelland, Secretary of the Department of the Interior. No. 620. The Department will not issue a patent to a soldier who sold his discharge, prior to the issue of his warrant. DEPARTMENT OF THE INTERIOR, I return herewith the papers enclosed in your letter of the 31st ultimo, in support of the application of Napoleon B. Lowther, for a patent for a tract of land located by a warrant, to which he was entitled, for services. rendered in the war with Mexico, notwithstanding he acknowledges having sold his discharge prior to the issuing of the warrant. This Department has already decided not to interfere between parties, in cases like the present, but to leave the matter for judicial examination and settlement. The law, it is true, declares all sales or transfers, made prior to the issuing of the warrant, to be null and void, but as the claimant himself was a party to this illegal Act, the Department does not feel called upon to aid him in annulling a contract, which he entered into of his own volition, for a consideration. Very, &c., A. H. H. STUART, Secretary. Commissioner of the General Land Office. No. 621. Original Warrants and duplicates must both be satisfied, if in the hands of innocent purchasers. DEPARTMENT OF THE INTERIOR, Sir:-I have considered the question submitted in your letter of 18th July last, upon the cases presented by Messrs. Chubb and Schenck, and am of the opinion that the cancellation of the warrants referred to, should be removed, upon satisfactory evidence that they are in the hands of innocent purchasers, without notice of the fraud which has been practised. They are genuine warrants, issued from your office, in due form of law, and any irregularity in the evidence upon which your office acted, or any fraud practised in procuring them, should not affect holders, innocent of the irregularity or fraud. The faith of the Government is pledged to the extent declared on the face of the warrants, and the carelessness or mistakes of public officers, should work injury only to the Government which employs them, and not to persons who act and invest their means upon the proper presumption that the business of the Government is accurately transacted. Such warrants therefore, as are regularly issued from your office, and are shown to have passed to the hands of innocent purchasers, must be located and dealt with in every way, as if the evidence upon which they were issued was perfect. The papers accompanying your letter, are herewith returned. Very respectfully, Your obedient servant, Alex. H. H. STUART, Secretary. James E. Heath, Esq., Commissioner of Pensions. No. 622. Two Warrants being erroneously issued to the same party, though one should Sir:-I readily admit that as a naked legal proposition, a warrant or any other instrument of writing obtained by fraud, is not valid. The opinions of various Attorneys-General cited by you, abundantly establish this proposition; but this is only one step towards the conclusion, which you have reached, others must be taken before the warrants returned by you can be vitiated. How stands the case? We have the Pension Office established as a tribunal to adjudicate between the applicant for land bounty and the Government, all the questions necessary to be decided before a warrant can issue. Two of the most important questions to be adjudicated are, 1st, the authenticity, and 2d, the sufficiency of the evidence submitted by the claimants. In these cases the Pension Office has adjudged both these points in favor of the claimant. Its judgment has been finally rendered, and the warrants have issued in conformity with the judgment. Here its jurisdiction would seem to end. It is functus officio, and the subject has passed beyond its control. It would seem as if its powers over the subject were exhausted, and that it had no authority to review its own final judgment. * See Nos. 636, 637. |