The National tribune., 1900-10-25
DEPARTMENT AND
CONGRESSIONAL NEWS.

PART PENSION TITLE, DESERT
ED WIFE-ACT OF MARCH 3, 1850
In the cases of Henry n. Rothery and
James ]. Richards asst Secretary
Campbell, Sept and 10, 1900, it is held
that applications for part pension were
not valid and could not properly be con-
sidered if filed within six months after
the date of the act, March 3, 1899, author
izing payment to deserted wives and chill
dren of invalid pensioners. The reason of
this is that the law is prospective and not
retroactive, and period of desertion prior
to the passage of the act cannot be con-
sidered, as it must be shown that state
of desertion has existed for at least six
months since the passage of the act and
before the filing of the application. In
the cases referred to, the wife-claimants
filed applications before six months after
March 3, 1899, and their applications were
allowed and part-pensions since paid them,
but it is held that these payments must
now be refunded TO the pensioners.
The decisions also lay down the rule
that the desertion must be actual, through
the willful absence of the pensioner, con-
trary to the wish of the wife. In the
rases referred to it appears that the pen
Bioners' wives refused to live with them
br to allow them to live at home. This,
It is held, does not constitute desertion on
the part of the pensioners.
REMARRIAGE AND DIVORCE
PENSION TITLE.-In the pension case
pf the widow of Samuel B. Kirkland, the
claimant admitted remarriage subsequent
to the soldiers death, but proved a divorce
from the bonds Of matrimony" from sec
pnd husband. The validity of her second
marriage was not in question before the
court and appears to have been entirely
valid.
The decision asst Secretary Campbell,
A II.
entered into valid marriage contract
with Jackson she effectually destroyed, in
the eyes of the law, her status as the
widow of Kirkland, and no court in any
State could restore her to her former pen
sionable status and rights as the widow
of Kirkland.
Claimant is now femme sole; she is
neither widow nor wife in the law. She
is a divorced woman, and can obtain no
more rights under the pension law as the
widow Of Kirkland than she can under the
common law as the wife Of Jackson. Her
status as widow was destroyed by her
own act. The law destroyed her status as
the wife of Jackson"
This decision reaffirms the long-settled
doctrine that has governed pension prac-
iice, that unless the divorce shows and
declares the remarriage null and void from
the beginning the widows pension status
Is not restored by a divorce after remar-
riage.
LINE OF Y-PRESUMPTION
I'm the pension case of William ID.
Mitchell deceased. it is held asst Secre-
tary Campbell, Sept. II, 1900, that
"When prior soundness is shown, and n
reasonable degree of proof that the injury
was sustained in the service is furnished,
there being no circumstances which would
raise a suspicion that it was incurred out
side the line of duty, and such injury is
shown to have existed at discharge, it will
be presumed that the injury was incurred
In line of duty"
In a former decision In the case (July
IA, 1899 the Department held: "To estsb-
Iish the incurrence of any injury in the
service and line of duty, in the absence
of a record there should be presented, as
q rule, the testimony of persons who were
present when the injury was received.
There are, however, circumstances under
which this rule may properly be ignored.
For instance, where the command to
which the soldier was attached was in
action at the time of the incurrence it
would be properly in accord with good
practice and in harmony with the spirit
of the pension laws TO presume that an in
jury of the nature described in this case
at such time and under such circum-
stances, was received in the line of duty,
even though there were no eye-witnesses
TO the occurrence; but, on the other hand
when the operations of the command to
which the soldier was attached were con-
fined to part Of the country where the
condition of war did not exist, acting as
the agents of State, executing the laws
governing the draft In q peaceful com
munity, where no actual conflict with the
common enemy could take place, line of
duty cannot be presumed, except upon the
unqualified and direct testimony of eye
witnesses or record"
The Department, by way of comment on
this, now says: This Department has never
attempted, unless inadvertently SO, as was
done in the present instance, TO lay down
any specific rule as to what kind or class
of evidence is necessary In order TO prove
service origin of disabilities in all cases.
What might be considered proof in one
case might not be SO considered in anoth-
er. Everything depends upon the sur
rounding conditions and circumstances,
coupled always with the fact that case
should be proved by the highest class of
evidence that the alleged incurrence is sus-
ceptible of. If one alleges honorable dis
charge, II should be proved by record evi-
dence. II one alleges hospital trkatment