The National tribune., 1903-07-02
DEPARTMENT NEWS.
RESTORATION OF PENsIoN-yoID REMAR-
RIAGE.


In the claim of the widow of Alonzo
Kingsley for restoration of pension the
Pension Bureau held that the claimant
was not entitled to pension for the period
that she lived in the marriage relation
with her second husband, nOtwithstand-
ing that her marriage to him was void.
The decision on appeal from this holding
says asst Secretary Miller, June 3, 1903,
serial No. 125, Vol IA, P. d.:
''In the case under consideration the
claimant entered into a marriage with
Trophagan in good faith. So far as legal
forms could go, she became his wife. But
the fact was he lacked capacity to marry.
He had an undivorced wife living. The
marriage was null and void, and was SO
adjudged and decreed by a court of COM
petent Jurisdiction When that decree
was entered the claimant stood in the posi-
ton of not having been remarked. As a
matter of fact, she never had been mar
ried to Trophagan.
"In the Coburn case the claimant was
seeking to take advantage of her own
wrong. She married Pebbles in haste and
lived with him for many years, knowing
she was not his lawful wife. In this case
as soon as the facts became known to the
claimant she sought legal means to nullify
{. marriage which, though entered into in
good faith, was, as a matter of fact, void.
''In the case of Mary l.. Moore g 2. D.,
o. S.. ~ the Department held:
The widows remarriage to a man
who then had an Hndivorced wife living is
no bar to her pension, such marriage be-
ing declared void by the laws of the State
where solemnized.'
''This rule of law in this class of cases
has been uniformly followed by the De
partment.
This somewhat extended discussion of
so plain a proposition of law has been had
for the reason that it appears, from the
following slip of a re-reviewer of the Bu-
reau, that the money was withheld from
this claimant in accordance with practice;
"'Under the present practice we should
withhold pension during the period that
this claimant lived with Andrew II
Trophagan as his wife
IF there is a practice in the Bureau
holding, in conformity to the above slip
in such cases as the one under considera
ton, it is erroneous and should be discon
tinued.
ITO hold that this claimant, who. as a
matter of law, never was married to
Trophagan, should be restored to her pen.
sion, subject to a deduction for the years
she lived with him, is pure Legislation
upon the part of the Bureau.
Section 470S, Revised Statutes, is al
follows:
1.-The remarriage of any widow, depen
dent mother. or dependent sister entitled
to pension shall not bar her right to suct
pension to the date of her marriage
whether an application therefor was filed
before or after such marriage: but on thu
marriage of any widow, dependent mother
or dependent sister having q pension, sucf
pension shall cease
''As a matter of law and fact, thi.
claimant never WAS married, and hel
title is clear to restoration to the roli
from the date her name was dropped OIL
account of an alleged remarriage.
'.The action of the Bureau from whicl
the appeal was filed is reversed. and tn
papers are returned for a rehabilitation o
the claim in conformity with this opinion.
DIVISION OF PESsIoN-DEsERTIoN
In the case of Elizabeth Martin agairs
David w. Martin for division of his pen
sion in accordance with the act of Marcl
3, 1899, the Pension Bureau held the ap
plicant not entitled. The decision on an
peal from this holding says asst Secre
Vol IA. z. d.:
"Where, as in this case, the evidenc
wholly fails TO show any intent on th
part of the husband to desert the wifi,
the claim should be rejected on the groun
that desertion is not established.
'Desertion begins with the intent to d.
sert. One can not be deserted while b
or she consents to the separation, or
either, by unjustifiable conduct, has cause
the separation. The one who intentiona
ly drives the other away is the deserte
The time begins TO run when the intent I
desert is formed. but does not run durin
complainant's consent to separation
Stewart on Marriage and Divorce, pa
251 and 252; Rothery vs. Rothery III /
D., 10, Marris VS.. Harris az p. D., Z
Goats VS.. Coats q2 p. D., SOD, Smith v
Smith Q3 p. D., I'D, Whitney VS.. Viii
ney Q3 p. D., BOD.
1T appears from the testimony
claimants daughter and son-in-law tn,
after pensioner was sick at their house
Brunswick, No.. in July, 1901, that clair
ant wrote her daughter reprimanding b.
for inviting her to visit them, Oct. i
1901. stating in substance:
why do you ask me to come wht
''the old man" is there? You know ii
farther we are apart the better il suit
me?'
"This and other testimony in the cas-
clearly indicate that pensioners absen1
from claimant was not in opposition to ht
wishes or without her consent.
1.-The rejection of her claim is therefor
Affirmed"