I return to you the papers in said contest for your action thereon. Should the record dis close that the defendant therein appeared and participated in the proceedings without raising any objection to their irregularity, because of the pendency of said appeal of Bradway, the irregularity of said proceedings, in that respect, ought to be considered as waived by him, and the case passed upon by you as though said irregularity had not existed.

PRE-EMPTION-HEIRS-ADMINISTRATOR.
FOSTER v. SMITH ET AL.

On the death of a pre-emptor his heirs may complete the entry at any time within the period allowed the pre-emptor.

The administrator is likewise authorized to make such entry from the date of his official qualification.

The intervention of an adverse claim cuts off the right of an administrator who after notice of such right, fails to take action within the proper period.

Acting Secretary Muldrow to Commissioner Sparks, March 3, 1887.

I have considered the case of George M. Foster v. John T. Smith, administrator of the estate of Joseph Preiss, deceased, on appeal by Foster from your office decision of May 31, 1884, holding for cancellation his homestead entry and allowing an entry for the heirs of Preiss. The tract involved embraces the S. of the NE. and the N. of the SE.Sec. 30, T. 26, R. 9 W., Niobrara land district, Nebraska.

From the record, it appears that Joseph Preiss, an unmarried man, filed his declaratory statement on March 23, alleging settlement March 17, 1880; that he built a one-story house ten by twelve feet; dug a well; broke fifteen acres, perhaps partially cultivated the same, and resided on the tract up to the time of his death on June 25, 1882. That prior to his death, Preiss was engaged in a contest concerning this land, with one Elder; that your office rendered a decision in that case on September 19, 1882, canceling the entry of Elder, and authorizing an entry by Preiss (on payment of the purchase money) upon proof tendered at the trial, notice of which decision was duly sent out; that on August 25, 1882, Smith was appointed administrator, but did not learn of the rights of Preiss in the premises until December 15th following. The record further shows that Foster, a married man, having a family, on August 3, 1883, applied to enter the tract under the homestead law; that his application was rejected by the local officers, for the reason that "the land applied for is embraced in the declaratory statement filing of Joseph Preiss, his final proof of which was accepted by the Honorable Commission September 19, 1882." From this decision Foster appealed, alleging that the rights of Preiss, if any, had expired. On that appeal your predecessor on October 15, 1883, held:

"The failure of the pre-emptor to complete his entry by making payment within a reasonable time after your notice amounted to an aban

donment or waiver of his right to enter upon the proof presented in February, 1882, and the land was subject to entry at the date of Foster's application, which you will allow. The right of the administrator to make proof at this time cannot be determined as the case now stands. Should he desire to test the question, he should apply to make proof and payment after due publication of notice of intention to do so."

Accordingly on November 20, 1883, Foster, with his family, settled upon the tract; built a comfortable residence twelve by thirty feet; a frame barn; cow stable; shed; corral; enclosed a hog lot, and cultivated forty acres in oats, potatoes and garden produce, valued in all at about $600.00, and has continued to live thereon. On March 3, 1884, he made homestead entry.

About one month after Foster's application to enter, to wit, in Sep. tember, 1883, the administrator forwarded to the local office his administration papers, together with $200.00, as payment for the land, which were returned to him, because the final proof made by Preiss, now deceased, has been rejected. The administrator, afterwards, on March 19, 1884, made supplemental proof, to which Foster filed protest. Foster also offered commutation proof on November 10, 1884, which was rejected and he appealed.

On this state of facts your office finds that "Smith appears to have used due diligence in attempting to complete the claim of said pre. emptor."

Section two of the act of March 3, 1843, provides "That in any case where a party entitled to claim the benefits of any of the pre-emption laws shall have died before consummating his claim by filing in due time all the papers essential to the establishment of the same, it shall be competent for the executor or administrator of the estate of such party, or one of the heirs, to file the necessary papers to complete the same." The circular of the General Land Office of May 8, 1843, referring to said section, says:

"The second section provides for the rights of parties who shall have died before consummating their claims by the filing in due time of all the papers essential to establish the same. Under it you are authorized, if proof of such right shall be filed and payment thereof be made by the executor or administrator or one of the heirs, during the period prescribed by the law upon which the claim is founded, to permit the entry in the name of the heirs of the deceased claimant." (1 Lester, 370.)

These instructions have been followed to the present time. The existing regulations provide that

"The legal representatives of the deceased pre-emptor are entitled to make the entry at any time within the period during which the preemptor would have been entitled to do so had he lived." (Gen. Cir., p. 9.)

The pre-emption law requires that a settler on land not yet proclaimed for sale shall make the proper proof and payment within thirty-three months from date of settlement. In case of failure so to do, the tract

of land will be awarded to the next qualified claimant in order of time who has complied with the law.

At the date of claimant's death twenty-seven months and eight days of that period had expired. It is clear that under the existing regulations as above quoted the heirs might have made the entry at any time, and the administrator was competent to do the same at any time after he qualified. Whether, under those regulations, time ceased to run against the estate, from the death to the date of the qualification of the administrator, is not necessary in this case to determine. In any event the time would again run from the date when the administrator got actual notice of decedent's claim, to wit, on December 15, 1882. Treating that date, for the purposes of this case, as the point from which time again commenced to run against the estate, the administrator then had five months and twenty-two days within which to make payment for the land, and that period expired in June, 1883. Payment was not offered until September following, and in the meantime a valid adverse claim had attached. The right of purchase under the law was therefore terminated.

I am therefore of opinion that the decision of your office holding for cancellation the entry of Foster was erroneous, and it is accordingly reversed. The final proof of Foster will be examined, and if found to comply in all respects with the law will be received.

PRACTICE-NOTICE BY PUBLICATION.

PANKONIN v. CROOK.

Service by publication of notice is authorized on due showing that personal service cannot be made.

A non-resident will not be heard to say that due diligence was not used to secure personal service.

Acting Secretary Muldrow to Commissioner Sparks, March 3, 1887.

On February 28, 1884, Thomas A. Crook made timber culture entry for the NE. of Sec. 26, T. 12 N., R. 39 W., North Platte, Nebraska. On March 3, 1885, Carl L. Pankonin initiated contest against the same, alleging that claimant "has failed to break or cause to be broken five acres of said tract within the first year from the date of said entry, and has failed up to the present time to improve in any way." The record futher shows that notice issued fixing the hearing before a notary public at Ogalalla on May 1, 1885, and the final hearing at the local land office on May 5. On the latter date neither party appeared, and the case was dismissed. Contestant appealed, and on his showing that the local officers had failed to issue a commission to said notary, your

office, by letter of June 16, 1885, re-instated the case, and remanded it "for further proceedings upon due notice." A commission was issued authorizing the aforesaid notary to take the testimony on August 10, 1885, and fixing August 17 as the day of trial at the local office. Notice by publication was then given. Testimony was regularly taken on the day appointed, and showed that claimant had altogether failed to break any of said tract up to March 2, 1885, but that ten acres were broken, after initiation of contest, on or about April 7, 1885. The local officers decided in favor of contestant, claimant failing to appear. On September 5, 1885, claimant filed in the local office certain "objections to the jurisdiction," setting forth: "(1) No service of notice of said contest has ever been had upon claimant. (2) No affidavit for service by publication has ever been filed as a basis for constructive notice as required by law." It was further stated on oath that claimant resides in the State of Illinois, that he received no notice directly or indirectly of the contest until after said hearing was had, and then "by accident," and that he has a good and valid defense.

The manner of the service of the first notice is not apparent from the record, but is not material in this case. An affidavit by contestant, dated March 3, 1885, contains the following allegations: "That he has made diligent inquiry in the neighborhood of the land in dispute, and among those who would be most likely to know of the whereabouts of the claimant, and has not been able to find his address, or place of residence; that he believes said claimant is not a resident of said State, and that personal service can not be had on him in said State." This affidavit was forwarded with the register's letter of May 29, 1885, and it is presumed was filed on or about the day of its date, although it bears no file marks. This affidavit seems to comply with the requirements of rule of practice No. 11, that "Notice may be given by publication alone, only when it is shown by affidavit of the contestant, and by such other evidence as the register and receiver may require, that due diligence has been used and that personal service can not be made," and forms a good basis for service by publication. As claimant now admits that he was not a resident of the State of Nebraska, he can not be heard to say that contestant has not used due diligence in attempting to secure personal service. Rule 9 provides that "Personal service shall be made in all cases when possible, if the party to be served is resident in the State or Territory in which the land is situated."

I am of opinion that claimant was properly served under the rules and is therefore bound by the allegations in evidence. The decision of your office, dated October 16, 1885, is for the reasons herein expressed affirmed.

FINAL PROOF-CLERKS OF COURT IN DAKOTA.

CLARK S. ROWE.

Clerks of court in Dakota, elected under the act of March 7, 1883, in counties where no court is held, are officers authorized to take final proof in homestead and preemption cases.

Acting Secretary Muldrow to the Attorney-General, March 4, 1887.

I have the honor of transmitting herewith a letter from the Commissioner of the General Land Office of August 5, 1886, enclosing one from the United States district attorney for Dakota to Clark S. Rowe of July 15, 1886, also a letter from the Commissioner of the General Land Office of January 20, 1887, enclosing letter of Register John A. Rea of January 15, 1887. These letters have reference to the authority of clerks of the court in counties in Dakota, where no court is held, to take final proof in homestead and pre-emption cases.

This question was considered by Secretary Teller in a letter to Commissioner Mc Farland of March 31, 1884 (2 L. D., 200), in which he held that clerks appointed under section I, chapter XIV, of the code of Dakota (page 340), "are officers before whom proof may properly be made, as provided by the acts of Congress of March 3, 1877 (19 Stat., 403), and the act of June 9, 1880 (21 Stat., 69).

The section of the code of Dakota above referred to provides:

"The judges of the district courts respectively shall have the power to appoint a clerk of the district court in each of the counties of his district, who shall be a resident of the district and a qualified voter thereof, who shall procure and keep a seal of the court for that county, and when courts are appointed therein shall perform all duties pertaining to that office, and shall keep his office at the county seat of his county."

The code of Dakota provides for subdivision of judicial districts and the holding of a district court therein at the county seat of one of the counties composing said judicial district. At the time the section above referred to was in force, some of the subdivisions consisted of as many as fifteen counties,

Secretary Teller construed this section as authorizing the appointment of a clerk of the district court in each county of the district, who was required to perform certain duties pertaining to his office and authorized to exercise certain functions by virtue of his office, and that when a court is appointed to be held in the county for which said clerk is appointed, he shall perform all the duties of the office, that is, as custodian of the records and the duties of the office in connection with the trial of cases in court.

The decision referred to by the district attorney, that a clerk of court in counties where no court is appointed to be held is not a clerk of a court of record within the meaning of the law regulating declarations of intention for naturalization, does not in my opinion conflict with the