The National tribune., 1903-07-30


tablish a status whereby petitioner may
be able to prosecute n claim: but it is quite
another thing to conceal from that court
the fact that such a claim has long since
been prosecuted and that unsuccessfully.
| by reason of Il decree of that same court,
said decree having been the cause that
led to the payment of the same claim to
other parties. and which the petitioner
leads the court to believe has never been
settled.
"An equity court will not knowingly al
low party to Il suit to acluieSce in an
original decree for Il long period of time,
or so long as it suits such partys con-
renience, and then after other rights have
intervened. based upon such original de-
cree. the court having no knowledge of
those other rights. overturn the original de-
cree at the instance of said party when
some ulterior object is sought to be gained.
thus playing fast and loose with the
courts equity powers as caprice or pc
cuniary motives may dictate. The con-
cealment of material facts from the court
which set aside the divorce decree of 1865
amounted in law to actual fraud, and the
same attorney who represented the petit
TONER before the equity court now is pros
ecuting this motion before the Depart
ment ard has represented her in her
claim, and his position is hardly an esi-
viable one as he now comes and asks the
allowance of the claim upon a dry prop
osition of law. He who seeks equity
must do equity This issue is not prop
erly one of law, but one of equity, and the
Department will, in the exercise of its
valid powers. refuse to allow the Govern
ment to be mulcted in a claim based upon
fraud.
"The foregoing is of Itself enough for
the Department to refuse to be bound by
the decree of nullity. But there is an
other reason why claimant can not pre-
vail. Not only was the court hoodwink-
ed into granting the decree of null.ty, but
it exceeded its equity powers in allowing
the case to proceed to final judgment
without serving actual notice upon the
Government. The Government was
shown TO be. by the petitioners admission.
Il vitally interested party. and construct
we fraud. at least, was perpetrated upon
it by a failure to notify. One of the basic
principles underlying equity is that before
court of equity will proceed to final ad-
jTdication of n cause, it will summon all
parties in interest in order that full JUS
tice may be done to all and all rights de-
termned. If an equity court does pro-
ceed to final judgment without actual no
tificaton having been served on one of
the principally Interested parties, it is a
well-estabiished rule that such an inter-
ested party is not bound by that decree.
(See case of Frances A. Monholland,
p. D., 494.) This proposition is so axiom
attic as not TO need demonstration. Tho
very decree itself shows the court was
advised that the object of the petitioner
was TO obtain the payment of large sum
of money from the Government. and it
was clearly error for it to have issued
final decree in the matter until the sup
posed debtor was given an opportunity
to be heard. The son of this claimant was
served with notification. and it is a
matter of some surprise that the court did
not order the Government notified before
it would hear any final argument.
Under such state of facts this De
partment may accept the last decree as
binding. or it may not. just as it sees fit;
and. under the circumstances as herein
before set forth. it declines to accept as
binding decree based on fraud, and rem
dered in violation of basic principle in
equity.
This claimant is estopped from now
setting up her claim to pension upon other
grounds also. She has been guilty of gross
laches in more ways than one, but this
matter need not enter into the present is
sue. Enough has already been said TO
demonstrate that there is no virtue what
ever in the contentious of this motion, and
it is overruled."
LEGITIMACY OF CHILDREN.
In the pension case of the minor child
of Edward Plount the Pension Bureau
held that inasmuch as it appeared that
the soldier was married to the child's
mother without a legal separation from a
former wife who is now shown to be dead.
the child by said second marriage is held
not to he the legitimate child of the SOL
der. On appeal it is held asst Secre-
tary Miller June %, 1909:
THE son Edward, who now seeks pen
sion, was Il child of soldier and the sec
ond wife. and. at common law, is illegit-
innate. But the statutes Of the State Of
Ohio. in which this case arises, have al
tered the common law in this respect. Sec
ton 4175. X. s., Ohio 1SS0i, is as fol-
lows: When a man has by a woman one
or more children and afterward intermar-
rics with her, such issue, if acknowledged
10y him as his child or children, shall be
deemed legitimate; and the issue of par
ents whose marriage is null in law shall
nevertheless be legitimate. In passing
upon such an issue the Supreme Court of
Ohio said, in Wright V. Lore Q2 Ohio St,
619):
1.-The expression deemed null in law"
is not confined to marriages which are
voidable and require judicial sentence
to establish their nullity, but that the in
nocent children of the marriage de facto,
although the marriage must be deemed a
nullity in law, comes within the letter and
spirit of the law
''This son Edward, then. must be held
to be the legitimate son of soldier, hav.
ing been the issue of a de facto marriage
and under the ruling upon the general
proposition involved, as pointed out in
the opinion in the case of minors of Har-
vey Perkins d3 z. D., AID, he must be
deemed to have n pensionable status as
the child of the soldier in question, so far
as his alleged illesitimacy is concerned.
'''The Department never having done so
in terms, it hereby expressly overrules
the contrary doctrine set forth in the case
of the alleged minors of Jonas w. Pu!ver
40 Z. d.. 22j.
Action reversed"
payn}op of Naval VataraDo