The National tribune., 1903-12-03


cree passed therein because he did not pa
her aliinony as ordered, and alleges tina
at the hearing of her petition both side
placed witnesses on the stand: that tn
witnesses for the APPELLANT mostly swore t
Ethe fact that he was unable TO pay ali
mOny, for the reason that he only made $
per week. and was greatly in debt to hi
landlord for house rent and also owed doc
tors bills and medicine bill and had som
minor children To support; that as she wa
unable to show that her husband was abb
TO comply with the decree her petition wa
dismissed.
Claimant has also fled with her apltea
a copy of a bill for divorce fled by he
said husband Oct q. 1902. and argue
prosecute his suit for divorce, the allega
tons i'll his hill We're untrue, as otherwis'
| lie would have received divorce. ant
these proceedings would not need to hav,
been reviewed by the honorable Secretar!
IF the Interior
Claimant having left her husband ant
the matrimonial doin;ci.e. it is incumben
that she was legally justified in her sait
separation in order to establish marital de
scrti0n or the part of her husband.
Having submitted her domestic con
troversy ia the courts, she is bound by
their judicial determination thereof, no ap
peal having been taken therefrom.
,"In her testimony in this case claimant
hss Wholly failed TO allege or prove sin
i gle Get &C s-uelty Or neglect ON the part
# her husband to justify her in leaving
| him. The strongest evidence on that point
offered by c',..ilI:,nt is to the effect that af-
Ter she had left his house. in accordance
with her previous threats he sent word to
her 10 remove her things out of his house.
and that he would advertise her in the
papers. This might or might not consti-
tute cruelty, but the conduct of both
parties indicates that, whatever may have
been the original cause of their misunder-
standings and separation. their desire for
separation was mutual.
'rhe Department is of the opinion that
the evidence in this case fails to establish
desertion on the part of the pensioner with
in the meaning of the act of March 3,
1S.9. as the separation appears to have re-
suited from mutual disa greements and n
mutual desire for separation. So far as
the evidence shows. the claimant has made
no effort TO secure a reconciliation, but
tends to show that pensioner requested
his wife to return to him. Mere separa-
ton does not constitute desertion. but the
separation must be against the will or con-
sent of the innocent party. Whitney v.
Whitney Q3 Z. D., BOD; Crume v. Crume
ibid. 42442D.
I'm questions of desertion the intention
of the persons absenting themselves has
a large, if not controlling influence Ken
nedy V. Kennedy (S7 ILL.,, 2J0).
"As claimant has failed to establish de-
sertiOn, the action appealed from. refus-
ing to reopen the case and to restore to
pensioner his full pension from March 4,
1W2. the date of filing his application,
therefore, is reversed"
RESTORATION oE wIDov's pEySrny-Acr
OF MARCH 3, 1901.
Emaline S. Lamb applied under act of
March 3, 1901, for restoration of her gen.
eral law pension as widow of AlonzO Girls
void. She had thrice remarked since the
death of the soldier: having secured a
divorce from her second husband, Ar.emus
Bennett; being divorced by the third hus-
band, MyrOn L. Warren, and the fourth
husband. Lorenzo r. Lamb, having died
Her claim was rejected 10y the Pension
Bureau on the ground that she was not
divorced from her third husband. Warren,
upon her own application and without
The decision oIi7the appeal frOE this
holding says ASST Sec'y Miller, Aug 13,
1903, serial No. 20:
"The language of the act of March 3,
1901, is plain and unmistakable wherein
it refers to restoration of widow TO
the pension rolls whose pension was Ter
minated by her remarriage. 1t is as fol-
lows:
80 Whose name has been or
shall hereafter be dropped from said pen
sion roll by reason of her marriage to an
other person who has since died or shall
hereafter die, or from whom she has been
heretofore or shall be hereafter divorced,
upon her own application and without
fault on her part, and if she is without
means of support other than her daily
labor, as defined by the acts of June q.
1890, and May 8, 1900, shall be entitled
to have her name again placed ON the
'The act plainly and distinctly says
that n widow whose name has been
dropped from the pension rolls by rea son
of her marriage TO another person, from
whom she has been heretofore or shall he
hereafter divorced, upon her own applica-
ton and without fault on her part, shall
be restored to the pension rolls from the
date of filing her application.
''Tlle meaning of this statue is clear,
and its provisions are susceptible Of but
one interpretation: and the Department
has no authority to depart from the plain
meaning of the language of the act, which
is free from ambiguity.
''The issue raised by the appeal is
whether or not the act of March 3, 1901.
relates TO the manner OF beng divorced
from a person. other than the one on ac-
count Of whom her pension was termi-
mated. From the language of the statute
it was clearly the intention of the Congress
TO restore to the rolls any widow who had
been dropped by reason of her remarriage
to another person, if she was divorced
from that person on her own application
and without fault Oh her part. The act
clearly means that widow may be re-
stored to the rolls if she procures di.
vorce from the person On account of whom
she was dropped. on her own application.
and without fault on her part. 1t is not
believed that a subsequent marriage and
divorce. when claimant had ceased to
be pensiOner, affects her pens:ona BILE
status. under the act above referred to.
= Congress evidently did not contemplate
succession Of marriages by widow pen
sioner.
Claimants name was dropped from the
rolls on account of her marriage to Arte-
mus Bennett. The County records show
that she obtained divorce from said
Bennett or her own application and with
out fault on her part, which, it il be-
lieved. fulfills all the requirements of the
act of March 3. 1901. Her subsequent
marriage TO and divorce from Myron War
ren does not. i'll the opinion of the De
partment. affect her pensionable status,
for she was not pensioner at the time
of her marriage TO Warren. and it was
not on account of her marriage to him
that her name was dropped from the rolls.
$50 far as shown by the evidence in
the case. claimant has been living the life
of good moral woman since her remar-
4 - 4 ia,