ing the agency, adding that the name of the agent was inserted therein before its execution. It should also state in terms that the agent has no right or interest, direct or indirect, in the filing of such declaratory statement. (Form 4-545, p. 246.)

The agent must file (in addition to his power of attorney) his own oath to the effect that he has no interest, either present or prospective, direct or indirect, in the claim; that the same is filed for the sole benefit of the soldier, and that no arrangement has been made whereby said agent has been empowered at any future time to sell or relinquish such claim, either as agent or by filing an original relinquishment of the claimants. (Form 4-545, p. 246.)

As implied by the requirement of the oath, a soldier will be held to have exhausted his homestead right by the filing of his declaratory statement; it being manifest that the right to file is a privilege granted to soldiers in addition to the ordinary privilege only in the matter of giving them power to hold their claims for six months after selection before entry, but is not a license to abandon such selection with the right thereafter to make a regular homestead entry independently of such filing. This is clear from the statutory language. Section 2304 provides that "the settler shall be allowed six months, after locating his homestead and filing his declaratory statement, within which to make his entry and commence his settlement and improvement;" and section 2309 requires him "in person" to "make his actual entry, commence settlement and improvement on the same, and thereafter fulfill all the requirements of law." These must be done on "the same" land selected and located by the filing.

The foregoing rule, however, will not be construed to require the rejection of an application to enter the tract filed upon after the lapse of six months, when climatic reasons are shown, which in case of an actual entry would, under the act of March 3, 1881 (21 Stat. L., 511; Appendix No. 23, p. 162), justify an allowance of one year for establishing residence; nor in cases where the failure results from sickness, misfortune, or any insurmountable cause, which shall be properly alleged and satisfactorily shown, and where no adverse right has intervened. Where such cause has prevented entry and an adverse right has been admitted, it will be held proper within the discretion of the General Land Office to allow an entry upon another tract: Provided, That it shall be shown to the full satisfaction of the Commissioner that the default was practically beyond the power of the claimant to avoid (circular of December 15, 1882, 1 L. D., 648).

Following the accepted practice in preemption cases, the filing of a declaratory statement will not be held to bar the admission of filings and entries by others; but any person making entry or claim during the period allowed by law for entry of the soldier will do so subject to his right; and the soldier's application when offered within such time will be allowed as a matter of right and operate to exclude the intervening claim.

In case the register and receiver have cause to believe that any filing offered for record is not presented in good faith, they will reject the same, allowing an appeal from their action according to the regular practice.

Entries can not be made for a soldier or sailor by an agent or attorney. The entry can be made only by the soldier or sailor, and he must commence his settlement on the land within six months after his filing, and must continue to reside on the land and cultivate it for such period as, added to his military or naval service, will make five years. But

he must actually reside upon the land at least one year, whatever may have been the period of his military or naval service.

The widow, or, in case of her death or remarriage, the guardian of minor children, may complete a filing made by the soldier or sailor as above, and patent will issue accordingly.

In case of the death of any person who would be entitled to a homestead under the provisions of section 2304, Revised Statutes, his widow, or, in case of her death or remarriage, his minor orphan children, by a guardian duly appointed and officially accredited at the Department of the Interior, may make the filing and entry in the same manner that the soldier or sailor might have done, subject to all the provisions of the homestead laws in respect to settlement and improvement; and the whole term of service, or in case of death during the term of enlistment, the entire period of enlistment in the military or naval service shall be deducted from the time otherwise required to perfect the title to the same extent as might have been allowed the soldier. (Sec. 2307, Rev. Stat.; Appendix No. 1, p. 138.)

The ruling herein before stated relative to the widow or minor children of another deceased homestead party as to actual residence is equally applicable to the widow or minor children of a deceased sailor or soldier; if the land is cultivated in good faith the law will be regarded as substantially complied with, although the widow or children may not actually reside upon the land.

In case of widows, the prescribed evidence of military service of the husband must be furnished, with affidavit of widowhood, giving date of the husband's death.

In case of minor orphan children, in addition to the prescribed evidence of military service of the father, proof of death or remarriage of the mother must be furnished. Evidence of death may be the testimony of two witnesses or a physician's certificate duly attested. Evidence of marriage may be certified copy of marriage certificate, or of the record of same, or testimony of two witnesses to the marriage ceremony.

Minor orphan children can act only by their duly appointed guardians, who must file certified copies of the powers of guardianship, which must be transmitted to the General Land Office by the registers and receivers with their abstracts of soldiers' declaratory statements.

COMMUTATION OF HOMESTEAD ENTRIES.

If a homestead settler does not wish to remain five years on a tract he may pay for it with cash. Military bounty-land warrants, agricultural college scrip, and private land claim scrip may be located in lieu of cash payment.

To entitle a homestead claimant to the land upon making such payment, under section 2301, Revised Statutes, as originally enacted, he must prove his actual settlement, improvement, and cultivation for not less than six months preceding date of proof. Residence on the land must be actual and continuous for the prescribed period.

Parties commuting homestead entries can not be excused from any cause for failure to live upon, improve, and cultivate the land for the required period. They are not obliged to make proof in the short time in which commutation is allowed, and when such proof is made full compliance with law must be satisfactorily shown.

Proof of settlement and cultivation for the prescribed period is to be made in the same manner as in preemption cases. (See pp. 224-226.)

A person commuting a homestead entry by false swearing when he has not actually resided upon the land and improved and cultivated it as required by law, forfeits all right to the land and to the purchase money paid, and in addition thereto renders himself liable to criminal prosecution. (M. F. Soto, 6 L. D., 383.)

The sixth section of the act of March 3, 1891, amends section 2301, Revised Statutes, so as to require that parties proposing to commuté their homestead entries to cash shall make proof of settlement and of residence and cultivation of the land for a period of fourteen months from the date of the entry, and the provisions of the section as amended are made to apply to lands on the ceded portion of the Sioux Reservation, in South Dakota, without, however, relieving the settlers thereon from any payments now required by law. (See pp. 58 and 206.)

This provision must be enforced in all cases of commutation in which the commuted entry was made after the date of said act, but the right to commute in cases in which the entry was made prior to that date is not affected thereby.

The remarks as to entries under the said section 2301 as originally enacted apply also to entries sought to be made under said section as amended, except as to the period of residence required.

The joint resolution of September 30, 1890 (26 Stat. L., 684), may be taken advantage of in proper cases for obtaining an extension of time of payment of purchase money by parties commuting their homestead entries by proceeding as herein before pointed out under the head "Extension of time of payment."

For information as to the commutation of entries in Oklahoma see pages 50-56.

The second and third sections of the act of January 19, 1895 (28 Stat. L., 634; Appendix No. 61, p. 219), contain special provisions for the completion of title to lands claimed under the homestead laws which were swept by the forest fires that prevailed in Wisconsin, Minnesota, and Michigan during the summer and autumn of 1894.

The second section provides that homestead settlers whose property was destroyed by such forest fires, or in case the settler perished by the fire, then his or her heirs, or, in other words, the successors to his or her homestead right, as defined in section 2291, Revised Statutes, may, upon satisfactory proof of compliance with the law upon the part of the settler to the date of the fire, and upon payment of the minimum price under existing statutes, receive a patent for the land embraced in the claim of such settler. The procedure in such cases, where the original entry has been made, will be the same as is now required in making homestead proof, except that compliance with the law need be shown only to the date of the fire, and, in addition, proof will be required as to the date of the forest fire and the extent of the damage done to the claimant's property thereby, or, where the settler has perished by the fire, proof as to the time and manner of his death. The payment required to be made for the land is the "minimum price under existing statutes," which in ordinary commutation of homestead entries under section 2301 Revised Statutes, is $1.25 per acre, except where the lands are within the limits of railroad land grants and thereby enhanced in price to $2.50 per acre, and in other cases such amount as is required by any special laws which may govern the disposal of the specific tracts of land.

In all cases where parties intend to avail themselves of the benefit of the said second section, under claims resting upon settlement alone at the time of the fire, they will be required, when they apply to make the original

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entry, if such application is not made within three months of the date of the settlement, to file affidavits explaining why such entry had not been made sooner.

Section 3 provides for cases in which the forest fires only partially burned the timber on the homestead, and the settler may desire to purchase only a portion thereof, retaining the remainder to be perfected under the general provisions of the homestead laws.

In such cases, and when the quantity of timber burned does not exceed 75,000 feet of merchantable green timber, the entryman may file with the register and receiver of the district in which his claim lies a sworn statement setting forth the fact that the timber on his claim was destroyed or injured by the forest fires during the summer and autumn of 1894, giving a description of his entry, the date and number thereof, and a description of each of the smallest legal subdivisions of his claim upon which the green timber has been injured or destroyed by said fires, together with an estimate of the amount of such timber so injured or destroyed upon each of said smallest legal subdivisions; also that he has complied with the requirements of the homestead law up to date. This statement must be corroborated by two witnesses who have actual knowledge of the conditions existing on the claim. The entryman must designate which of the legal subdivisions of his claim on which the timber was burned he desires to purchase under this act, and with his application to purchase and sworn statement above required he must tender the necessary amount of money to complete the purchase at the minimum price per acre.

ACT OF JUNE 15, 1880.

A further right of making cash payment for lands originally entered as a homestead accrues under the act of June 15, 1880 (21 Stat. L., 237; Appendix No. 20, p. 160), which allows any party who had entered a homestead prior to that date (or any person to whom such party may have attempted to transfer his right by a bona fide instrument in writing) to pay the Government price (less the fee and commissions) for the land covered by such entry, provided it was originally subject to entry, and provided it had not been subsequently entered by any other person under the provisions of law (Maughan, 1 L. D., 25; Weaver, id., 53; Miller, id., 57; Bishop, id., 69; George E. Sandford, 5 L. D., 535). He can not, however, be permitted to exercise such right so as to bar the preferred right of a contestant under act of May 14, 1880 (21 Stat. L., 140; Appendix No. 15, p. 156), after contest initiated (Freise v. Hobson, 4 L. D., 580).

In case the original homestead party applies to purchase, if he has lost his duplicate receipt he must make oath that he has not, prior to the passage of said act, transferred nor attempted to transfer his homestead rights under said entry, and that he has not assigned his right to receive the repayment of the fees, commissions, and excess payments paid thereon. The register will certify to the receiver the amount to be allowed as credit for fees and commissions already paid, the applicant first making oath that said fees and commissions have not been repaid and that no application for such repayment has been made. In case he had attempted to transfer his right he may still be permitted to purchase upon filing proof of the consent of the person to whom such transfer was attempted to be made.

ATTEMPTED TRANSFER OF HOMESTEAD RIGHT.

In case a party to whom a homestead settler has attempted to transfer his right desires to take advantage of the act, the register and receiver will require the instrument in writing by which it was sought to transfer such homestead right to be filed, together with the best evidence attainable of the bona fide character of the transfer, including the affidavit of the party who seeks to purchase.

In case of doubt as to the propriety of allowing the application to purchase, they should refer all the papers to the General Land Office, accompanied by an expression of their opinion based upon a full recital of the facts.

FORM OF ENTRY.

The application must be made as in ordinary cash entry (Form 4-001, p. 234) and must be accompanied by the receiver's duplicate homestead receipt, or, if that has been lost or destroyed, by an affidavit setting forth such fact and giving the register's and receiver's number and date of the original homestead entry. It must also be stated in the application that the same is made under the second section of the act of June 15, 1880.

Final homestead proof not being required in these cases, no advertisement or notice of intention to make final proof is necessary, and no final homestead fees are to be paid or collected.

Warrants and scrip made receivable by law for lands subject to sale at private entry or in commutation of homestead or preemption rights are receivable for lands purchased under this act.

Where land purchased under this act is paid for with warrants or scrip there would be no claim for repayment on account of the fee and commissions paid on the original homestead entry; and the existing rule must be observed, that where the value of warrants or scrip exceeds that of the lands entered therewith no repayment on account of such excess is authorized, but the warrant or scrip applied must be fully surrendered. (See "Warrant locations.")

ADDITIONAL HOMESTEAD ENTRIES.

The election of a qualified party, when filing for a homestead, to take less than the law allows him is construed as a waiver of his claim for a larger quantity, and he can not make up the difference by an additional entry, except in cases where subsequent legislation has provided therefor.

Additional homestead entries are allowed by several acts of Congress. The act of March 2, 1889 (25 Stat. L., 854; Appendix No. 33, p. 170), is of a general nature as regards the parties to be benefited, and there are a number of special statutes allowing such additional entries for the benefit of certain classes of claimants, viz: Section 2306, Revised Statutes (Appendix No. 1, p. 138), providing for soldiers' additional homestead rights in certain cases; and acts of March 3, 1879 (20 Stat. L., 472); July 1, 1879 (21 Stat. L., 46), and May 6, 1886 (24 Stat. L., 22) (Appendixes Nos. 11, 13, 28, pp. 153, 154, 165), for the benefit of settlers within the limits of land grants for railroads.

The first-mentioned act contains two sections that provide for additional entries, as follows: