The National tribune. [volume] (Washington, D.C.) 1877-1917, 1902-05-15


on this subject is based on mere theory or
conjecture, and may or may not be true.
For all that is actually known by claim
ant or any of her witnesses he might have
died in some other way, or he may not be
dead at all. The only thing that is
definitely proved is the fact of his con-
tinued and unexplained absence from his
home and family for a period of seven
| years and more, during which period nc
intelligence of his existence has been re-
ceived. This fact is good basis for the pre-
sumption of his death at some time with
in that period, but nothing more.
In the next place, the commencement
of the widows pension from Aug. &, 1900,
the date of filing her application, after
seven years from soldiers disappearance
had elapsed, cannot be taken as at all fix
ing the date of his death. Commencement
of the pension was simply a compliance
with the provision of the act of June %,
1890, which requires all pensions granted
Hereunder to commence from the date
of filing the application therefor and the
legal presumption of death after the seven
years absence only goes TO the fact and
not to the date of death.
But there is a question growing out of
the rejection. as stated, which may be
properly passed upon in the consideration
of this appeal. That question relates to
the title of the widow to that portion of
the accrued pension of the soldier which
can be definitely fixed upon. or calculated
to have been due him while alive In
other words, the amount which he might
have been paid between the date of conf
mencement of his pension and the date
when he was last known to he alive
Dec. u, 1891. to March IS, 1893. He
has been adjudged entitled to pension, and
he was unquestionably alive during that
period. This may not be all he was en-
titled to at the time of his death, and
there can be no termination of his pen
sion at the date of death. because said
date is not known. But the fact of his
death has been established by legal pre-
sumption, as already indicated, and it is
not apparent why his widow should not
receive the amount found to have been
due him during the period when he was
known to be living
Certainly there is nothing in the law.
either in expression or by implication, that
would prevent such payment to the
1T could hardly he contended, with any
show of reason, that. because the exact
date of death is not known and the full
amount of the accrued pension to such
date cannot be determined. this law would
permit no part of such pension, or such
amount as is known to be due, to be paid
to the widow. the fact of the pensioners
death heing admitted. On the contrary.
it would seem that proper compliance with
said law, as well as every consideration of
equity, would require the allowance of
the pension that had accrued at the date
of soldiers disappearance.
This title to accrued pension. as here
tofOre shown. is given by Section AIS
Revised Statutes. and that section pro-
videS that she shall receive it to the date
of the death of the soldier. But it would
be an anomaly to hold that because the
date of the death cannot he ascertained.
and she may not receive all. therefore she
can have no part of such accrued pension,
even the amount conceded to have been
due the soldier in his lifetime. Consider
ing this matter in all its bearings. the con-
cluSinn seems inevitable that this widow
is entitled to the pension which has been
adjudged the soldier was entitled TO from
the date of commencement TO the date
when he was last known to be alive. In
this connection il may be remarked that
if the widow should ever be able to estab-
lish the exact date of soldiers death. she
would be entitled TO such balance as might
be due at that date.
'The action rejecting the claim is re-
versed, and the papers are herewith re-
turned for rehabilitation in accordance
with the views herein expressed"