The National tribune., 1909-12-09
PENSION DECISIONS.
Line of Duty-Abscnt With Hunting
Party-Evidence-R OF War De-
n1rtnenf

The soldier while absent from post
with hunting party. unauthorized, left
camp Nov l3, 1902, and while follow
ine an elk became lost and remained
out until found by a guide Nov H.
1902, and brought tC camp, where he
died Nov. II, 1902, from double penu-
monia. result of such exposure. Tne
War Department reported: "All the
foregoing in line of duty"
| Held: l. That the record evidence
tends to prove that soldier left the
hunting camp at his option; that Is,
was not required to go, there belng no
order for him not to leave camp; hence
no disobedience of any order in the act,
| but an assumption of the risk in the
| absence of a command so to do.
9 In the absence of proof that SOL
| dier's act in leaving the hunting camp
| in pursuit of an elk was in disobedience
| of a command, order or specific regula-
ton of said hunting party, and in view
of the fact that the War Department
| reported him in line of duty, his death
will be accepted as having been due to
his military service in line of duty. 20.
| 6-26-'09.
Service - DesertiOn - Honorable Dis
cIIarge-JOint Resolution of July 4,
| 1902-Act of July 5, 1SSf-Faithful
| Service.
| Claimants late husband, the soldier,
|
service in the war of the rebellion, and
was never discharged therefrom. He
| also deserted from his last contract of
| enlistment for service in said war, but
| in 1888 the charge of desertion from
said last service was removed, and on
honora BILE discharge issued to him un-
der the act of July S, 1884. as of the
date he deserted from his last contract
| of enlistment
Held: That the act of June 27, 1890,
| requires as prerequisite to pension
hereunder an honorable discharge
| from all service contracted to be rem
| dered during the war of the rebellion,
and soldier not having been honorably
discharged from his first contract of
service, his widow is not pensionable
under said act.
2. That the second section of the joint
| resolution of July 1, 1902, providing
| that enlisted men who were honorably
discharged from last contract of service
| entered into by them during the late
war of the rebellion shall be held and
| considered to have been honorably dis
| charged from all similar contracts of
| service previously entered into by
| them with the United States during said
war does not afford claimant relief. for
| the reason that as her late husbands
| entire service under his last enlistment
was not faithful he was. by the proviso
| TO said second section of said resolution,
| excepted from the remedial provisions
| If the same. and he therefore was not
| hororably discharged from all the SER
vice he contracted to render during the
war of the rebellion. so. 8-20-'09
Aiarriage-New YorI1-Divorce-,fin
sota-Dccree of Nullity-Washington
Estoppcl-Impcdine
| This claimant after the soldiers death
married c., June %, 1865, in the State
of New York, and lived with him as
| his wife until 1892 or later, when they
| separated. He procured in 1899. at his
| domicile in the State of Minnesota, a
decree of divorce on publication notice.
| She. in 1907, at her domicile in the
State of Washington, procured on per-
sonal service a decree declaring such
marriage null and void, because of a
! former wife of said c., then living and
| undlyorced. Each proceeding was reg
| ular and conformable to law, with ade-
-quate jurisdiction to support the de-
cree rendered. In the divorce action
| no issue as to validity of the marriage
was in fact raised or passed upon In
| the nullity action no notice of the di-
Vorce action was given the court The
| claimant as guardian of the soldiers
minor children claimed and received
pension accordingly up to the 18th year
of the youngest child.
| Held: Claimant is not estopped from
| denying herein the validity of her mar
| IldSe " -, Dut Is eSlOppeQ from
| ceiving pension as widow for the period
during which she received pension as
guardian.
| A divorce decree is only presumptive
| evidence as to the validity of the mar
riage dissolved when no issue as to its
validity was raised or passed upon in
such action, and does not estop the
party against whom it was rendered, on
constructive notice and default from
prosecuting an action for nullity of such
marriage.
/ The claimants marriage to said C. is
shown both by said nullity decree and
by the testimony of himself and his
former wife to have been null and void.
because of the latter being alive and
| undivorced. 81. S27-'09.
Marriage-Act of Aug. z, 1SS2-Indi-
ana - impeachment - Divorce - Evil
| dence.
| Claimant married the soldier In the
State of Indiana at a date when he had
a living, undivorced wife. No divorce
was ever had or attempted between the
soldier ana his first wife, but -notwith-
standing each remarked. The first sur
vived the soldier.
Held: /. That claimant has no title
under the act Of June "a, 1890.
2. The Department had tho right to
declare in each claim what class, quail
ity and amount Of proof 1t will require
Ito establish Q particular status, and