Year: 1872




time, twenty years or twenty days. The
legal conclusion is therefore inevitable,
that whatever efficacy might be given to
the legislative Act by Court, were a
question of the legitimacy of children at
at stake, or whatever potency it might
have upon the question of do,ocr, it
could have no power to divest an estate
which had once vested in the wife and
that for the purposes of rendering that
estate absolute, the marital relation bet
,ceen Dauid s. and Lydia Il. Maynard
must be held to haze eristed at least during
the four gears nert succeeding the Sd Of
April, 1852.


Moreover the domicile of the hus-
band is the domicile of the wife and
hence Lydia must be deemed to have
acquired every right which she would
have acquired had she gone with her
husband on the claim, on April 3, 1852,
and remained there until the four years
had fully expired.


It has been uniformly held by the
Officers of the Land Department that
no residence by the wife is required by
the law. The opinion of the Attorney
General as contained in his letter ad-
dressed to the Secretary of the Interior
under date Nov. 25th, 1862, is conclu-
sive npon this question. The following
extract is enough to show this fact


"The condition of residence and cul-
tivation for four consecutive years, upon
which the land is granted to the settler
or occupant, and his wife, if he be
married man, applies only to the man
himself, and not his wife. | can find
nothing, either in this section or in the
act of which it is part, which makes
residence and cultivation, or either, by
the wife, condition precedent to the
acquisition of the title to her share of
the land. She acquires her right by
virtue of her relation to her husband,
and of his compliance with the proyis-
ions of the Act, and by no act of her
own. 1 think
she earned her share of the land quite
as well by enduring his absence on the
other side of the continent for four
years, as she could have done by incum-
bering his energies with her presence,
and imposing on him the burthen of
i her support and protection. But how
ever this may be, the Act of 1850 GER
tainly does not, either directly or i'm
pliedly, provide that she shall be with
her husband during the four years of
residence and cultivation required of
him to secure their title and to deprive
her Of her share of the fruits of his
labor, on this ground, would, think,
be making an unwarranted addition to
the terms of the statute"


This opinion was given in the case of
the Donation Claim of Daniel F. Brad
ford, whose wife remained the entire
four years in the State of Massachusetts,.


1t is argued that in this case the wife
afterwards came to Oregon and resided
upon the claim, and for this reason the
case differs from the one at hand. But
it is submitted as conclusive answer,
that the estate became absolute at the
expiration Of the four years residence,
and that no further act was required of
either husband or wife, save that the
former must have "proved up" If
both Bradford and his wife had gone to
Jericho and never returned, at any time
after the four years had expired and af-
ter the proving up" it is difficult to
see how this could affect their estate.
1t is equally difficult to see how the es-
tate of the wife would have been affect
ed, by either going to Oregon'or remain
ing in Massachusetts,, after the four
years had expired.


The same question came before the
Supreme Court of Oregon, Hon. Geo.
H. Williams, Chief Justice, giving the
opinion, in the case of Vandoiph U. Otis
l Oregon Rep. 153.


"Section provides. that at certain
times each Of said settlers shall notify
the Surveyor General of the precise tract
or tracts claimed by them. respectively
Said settlers referred to here, are the
settlers mentioned in sections four and
five. Now, if the wife is one of said
settlers she must notify the Surveyor
General of the precise tract which she
claims. and this she cannot do, for she
is not allowed to claim any precise tract
till it is designated for her by the Sur
veyor General. If then. she is not
bound to notify under section 6, she is
not settler under sections and 5.
Provision is made in section for the
widow, where she is left by the decease
of any settler, but there is no implica-
ton that ANY settler may die and leave
a widower. Taking all parts of the law
together, it is evident that the qualifca-
tions of husband as settler, per Sc,
qualify the wife, so that each gets an
equal share of the Donation. When
ever q claimant is otherwise competent,
he is entitled to $40 acres under section
4, If he is married man, and no other
exposition of his family affairs is neces-
sary to establish his right"


". TIE AppoRr1oNMENT MADE, OR
ATTEMPTED TO BE MADE ON MAY IA, 1869,
WAS VOID.


1. Because it was in response to the
written request of David and Catharine,
made and filed on that day.


2. Because there was in fact no ap-
portionment, nor is there any record of
apportionment.


The act to be performed by the Regis,