entry, and one application of the rule, while in this case many entries may be made under one original right. And if with each entry there might be an application of the rule of approximation it is apparent that the various assignees of the fractional rights would in the aggregate obtain a much larger quantity of land than the soldier himself could have obtained under the act which expressly limits the gift to only enough land to eke out the 160 acres granted by the general homestead law. Hence the Department, by circular of August 7, 1903 (32 L. D., 206), provided that—

Hereafter, in allowing soldiers' additional homestead entries . . . the rule of approximation will be applied only when the entire additional right, originally due to the soldier . . . . is offered as a basis for the entry. If part of the right is located upon a tract agreeing in area with such right surrendered or located, then this circular will not prevent the application of the rule of approximation as to the remainder, if offered in its entirety as a basis for the

entry.

In the present case all the soldiers' additional rights tendered, excepting that derived from Jacob Bowers, for 4.79 acres, were assigned to the applicant subsequently to the date of the said circular. Only in respect to this right does the further provision in said circular become applicable, that—

If the right has been divided, and a part located and entry allowed therefor, before the date of this circular, the rule of approximation may be applied as to the outstanding and unused portion of such right, in the manner and to the extent above directed as to the additional right originally due.

The latter right being for so small an acreage the conclusion herein will not be affected by the exception noted.

Said instructions were followed in the case of Guy A. Eaton (32 L. D., 644), where the Department said:

The entire right originally due the soldier is offered as a basis for the entry applied for, but if . . . . the soldier had still retained a portion of his right, the rule of approximation has never been applied to an entry made under said right, and the circular referred to . . . . contemplates and permits one application of said rule to each original right of additional homestead entry under said statute.

In the case of John S. Morton (34 L. D., 441), it was held that

Only one application of the rule of approximation is allowed to each original right of soldiers' additional entry, and where the right is divided the rule may be applied only in the location of one portion thereof.

The Department said therein:

It thus not appearing that the rule has been heretofore invoked in connection with this soldiers' additional right, and since the present application exhausts the right it is believed that the rule of approximation may properly be applied herein.

Thus while, as said in the case of Ole B. Olsen (33 L. D., 225), "where a number of such fractional portions of rights have been

assigned to the same person, he is entitled to enter an amount of public land equal to the aggregate amount of all such fractions owned by him,” it is entirely clear from the foregoing that the applicant herein may not, by combining six fractional rights in two portions of 20.01 and 20.03 acres respectively, have two applications of the rule of approximation so as to permit him to purchase 39.60 acres upon a right of .04 acres. In this manner any and all soldiers' additional rights could be made the basis of purchase of many times 160 acres instead of a base limited to filling out the one original homestead. right. To state the proposition is to refute it. And if it were shown herein that there has been no previous application of the rule of approximation in the case of any of these six rights it must further be shown that the proportionate addition would not in any of these cases render the excess over 160 acres greater than the present deficiency (see the case of Whitcher v. Southern Pacific R. R. Co., 3 L. D., 459), and still further that the present application tenders the entire remaining right of each soldier named and exhausts the same.

The Department is clearly of the opinion that the application was properly rejected. Authority is not found, however, for the allowance thereof in part over the objection and against the desire of the applicant. No adverse right appearing there is no reason why he should not have opportunity to furnish another and appropriate base for all the land embraced in his application and improved by him. The case is therefore remanded with instructions to notify the claimant that if within thirty days after notice he shall furnish a valid and sufficient base for the allowance of a soldiers' additional homestead entry for the land in question, such entry will be allowed if no adverse right has then intervened. Should the applicant fail to furnish such valid and sufficient base in support of his application the same will be rejected and the papers returned, the land in question thus being thrown open to entry by the first legal applicant. As thus modified, your said decision is hereby affirmed.

WALLACE v. CLARK.

Petition for review and reconsideration of departmental decision of June 24, 1907, 35 L. D., 622, denied by First Assistant Secretary Pierce, March 13. 1908.

OKLAHOMA LANDS-PASTURE RESERVE-EXTENSION OF TIME FOR

SIRS: You are advised that on March 11, 1908, an act [Public No. 49] to extend the time of payments on lands sold under the acts of June 5, 1906, and June 28, 1906, was approved by the President, a copy of which is herewith enclosed.

You will note the fact that certain additional payments are required as a condition precedent to the extension of time in each case as follows: Before an extension of time is granted for payments required by the act of June 5, 1906, the entryman must pay into your office four per centum on the total amount of his deferred payments, and before an extension of time is granted on the payments required by the act of June 28, 1906, the purchaser must pay into your office five per centum on the total amount of his deferred payments. [See explanatory telegram, p. 311.] You are directed to issue receipts to the entrymen for the amounts so paid and thereafter dispose of the money so received, and account for the payments and forward duplicates of the receipts in the same manner in which you account for and dispose of the payment of annual installments required under said acts.

In cases where the first annual installments required by said acts remain unpaid after the expiration of one year from the date of the entry, you will notify the entryman that unless he, within sixty days from the date of such notice, either pays such installment or secures an extension of time by making the additional payment required by the act of March 11, 1908, his entry will be canceled and the payments theretofore made will be forfeited.

The act of March 11, 1908, also provides as follows:

That all persons or their legal assignees whose applications to purchase any of the pasture lands mentioned in the act of June twenty-eight, nineteen hundred and six (and whose applications were rejected because such persons were sublessees), shall have the right to purchase under the provisions of this act the lands so originally applied for by them.

You are, therefore, directed to notify all persons whose applications to purchase under the act of June 28, 1906, were rejected because they were sub-lessees, and any known legal assignees of such persons, that they will be permitted to purchase the lands covered by their subleases, or assignments, at the appraised value thereof heretofore fixed

under the act of June 28, 1906, at any time within sixty days after the date of such notice, in the same manner and subject to the same conditions under which the original lessees were entitled to purchase under said act of June 28, 1906. Such purchases will be reported and all moneys received thereunder will be disposed of by you in the same manner pursued under sales made under said act.

As condition precedent extension time on payments for pasture lands under act March eleventh, nineteen hundred eight, you will require only payment of interest on installments due. Modify notices to entrymen accordingly.

Approved:

DENNETT, Commissioner.

GARFIELD, Secretary.

SOLDIERS' ADDITIONAL-REMARRIED WIDOW-SECTION 2307, R. S.

HENRY S. KLINE.

Where the widow of a soldier made homestead entry for less than 160 acres and remarried prior to the enactment of the Revised Statutes and remained a married woman at that date and until her death, she was never in her lifetime entitled to make an additional entry under section 2307 of the Revised Statutes, and no such right therefore exists in her estate after her death.

First Assistant Secretary Pierce to the Commissioner of the General (G. W. W.) Land Office, March 19, 1908. (P. E. W.)

Henry S. Kline has appealed to the Department from your office decision of January 14, 1908, holding for rejection his substituted

application as assignee of Edmond Opdyke, administrator of the estate of Elizabeth Opdyke Nevill, to enter, under section 2306 of the Revised Statutes, the NE. of the SE. of Sec. 34, T. 150 N., R. 76 W., Devils Lake, North Dakota, based on the military service of Samuel Opdyke and the homestead entry, No. 1284, made by his widow, the said Elizabeth Opdyke Nevill, at Boonville, Missouri, September 9, 1865, for forty acres of land. Rejection was upon the ground that no additional right existed.

The admitted facts in the case are that said Samuel Opdyke rendered the requisite military service and died in the service, January 23, 1863, without having made a homestead entry; that his widow after making said homestead entry No. 1284 in her own right, was remarried on November 4, 1866, to James Nevill and remained his wife until her death on July 23, 1894. Dying intestate, her estate was administered upon by said Edmond Opdyke, who upon order of the proper court made sale of the additional right sought to be asserted herein, as an asset of her estate. Sale thereof to C. W. Journey was by said court approved on November 30, 1901.

It is contended in the appeal that, having made said homestead entry No. 1284 while the widow of the soldier, the said Elizabeth Opdyke thereby, and upon the military service of her deceased husband, became entitled to an additional homestead right of 120 acres, and appellant relies upon the cases of Homer E. Brayton (31 L. D., 443) and Roy McDonald, A. L. Clark Lumber Co., Transferee (36 L. D., 205). In the former it was held:

The widow of a soldier who made homestead entry in her own right, prior to the adoption of the Revised Statutes, for less than 160 acres of land, is, by virtue of the provisions of sections 2306 and 2307 of such statutes, entitled to an additional homstead right, and if she fails to exercise such right it becomes upon her death an asset of her estate, subject to distribution as other personal property.

Upon authority of the latter case it is urged that, the applicant having purchased the right in question relying upon the foregoing decision, the same having the effect of law, "entries made and applications filed in compliance with a decision in force at the time should be acted upon in accordance with the said decision."

If a soldiers' additional homestead right ever existed in favor of the decedent, whose administrator made the assignment upon which the present application is based, that right was an asset of her estate. See the case of Inkerman Helmer (34 L. D., 341).

But upon careful examination of the act and all the departmental decisions thereunder it must be held that said decedent never became seized of an additional right of entry. In the case of John M. Maher (34 L. D., 342, 343), distinguishing the unreported case of Robert E. Sloan, assignee of Sarah N. E. Pruitt, decided upon appeal June 29,