contributed to the support of the child? The Department is clearly of the opinion that he can not, and for the following reasons:

The supreme court of Ohio held in the case Fulton v. Fulton (52 Ohio St., 229), where a divorce is granted for the fault of the wife and she voluntarily assumes the custody and support of the children, she can not recover from the husband; that

If under these circumstances, where her own misconduct has destroyed the family relations and deprived the father of the custody and society of his children, she has, in fact, maintained her children she has no claim, legal or moral, to demand reimbursement from the father.

In the case of Fitler v. Fitler (33 Pa. St., 50), it was held that—

A mother who has deserted her husband, retaining her child in her own control, can not, after a divorce obtained by the husband on the ground of such desertion, maintain an action against him for the support and maintenance of the child.

Such in effect was the holding of the supreme court of Michigan in Johnson . Ousted (74 Mich., 437).

The pensioner being legally justified in his refusal to contribute to the support of the child while in the custody of the wife, he can not be said to have deserted or abandoned the child within the intent or terms of said act.

To desert or abandon is to forsake; to leave without the intention to return to; to renounce all care and protection of. (Shannon v. People, 5 Mich., 89.) The words desert and abandon convey the same idea and are synonymous. (See "Abandonment of children," 1 Am. and Eng. Ency., 2d ed., note 1, pp. 2 and 3.)

To desert or abandon implies a failure to perform, or a violation of, a legal duty. For reasons already stated, the pensioner has violated or failed to perform no legal duty in his failure and refusal to care for his said child while deprived of its custody. According to claimant's own admission, his refusal to support the child was limited to the then existing conditions and circumstances.

Claimant testified September 8, 1902, as follows:

I wrote him first about four years ago asking him to help support the child, and he replied that he expected to help support the child when the proper time comes, but I do not know what he means by that expression.

Pensioner testified that

Before I obtained the divorce from her she wrote me something about contributing to the support of the child, and I wrote her that I would not support the families in two different places.

Claimant, while not questioning the jurisdiction of the court granting the decree, and which court found, as a fact, she was the party in fault, that she had willfully deserted her said husband for more than three years prior to October 21, 1901, contends that she has the right to prove and has proved that pensioner and not herself was responsible for the separation by reason of his drinking habits and his failure to provide for her.

P. D.-VOL. 13-02-10

Without conceding the soundness of this contention, as to do so would in effect be to concede her rights to retry the divorce suit before this Department, it may be stated that the evidence in this case, even if there had been no divorce proceedings, fails to sustain her contention as to the facts proved. By her own admission she narrows the cause of separation to failure to provide for her. She testified before the examiner that

I left him, or rather did not return to him, because he did not provide for me and on account of his drinking habits; but I would have put up with his habits if he had provided for me.

And she named several witnesses who, she alleged, could testify to the fact that her husband did not provide for her. These witnesses were examined, but failed to sustain her said contention; while the testimony of one of her witnesses and the witnesses for pensioner tend strongly to disprove her allegation that her husband did not provide for her. The evidence also tends strongly to show that pensioner's children by a former wife, five of whom were living at home with pensioner when he was married to claimant, and who continued to reside with their father, were largely, if not mainly, the cause of claimant's dissatisfaction with her husband and home. From the time of the marriage, in March, 1895, to the time or their final separation, in March, 1896, claimant spent much of her time with her parents, and she testifies she would have returned to him, and, in fact, started to return and had reached the depot when she received a discouraging letter from pensioner's daughter. This letter, it is shown, was written without the knowledge or consent of pensioner.

But independent of this testimony the Department is of the opinion that where a divorce is granted the husband for the fault of the wife, and she voluntarily assumes the exclusive custody and control of their minor child, the failure of the father to contribute to the support of the child while deprived of its custody does not constitute desertion of such child within the meaning of the act of March 3, 1899.

This is not a case where the child is a charge upon the public or is suffering from lack of support.

The action appealed from is accordingly affirmed.

MARRIAGE-LAWS OF VIRGINIA-COHABITATION-EVIDENCE.

ELIZA A. STEWART (WIDOW).

The evidence shows that the claimant commenced to cohabit with Dabney Smith in the State of Virginia in the year 1865 as his wife, and so continued up to 1870, at least two children being born to them, one of whom is now living. Claimant attempted to marry the soldier in 1873, a ceremony being performed, and she lived with him until his death in 1900. A bona fide matrimonial intent on the part of the claimant and Dabney Smith is shown, and is reasonably inferable from the facts.

Held. The act of the legislature of the State of Virginia of February 27, 1866 made the claimant and Dabney Smith husband and wife; and her attempted marriage with the soldier was, therefore, void ab initio, death or divorce not having been shown.

Assistant Secretary F. L. Campbell to the Commissioner of Pensions, January 26, 1903.

Eliza A., as alleged widow of Edward Henry Stewart, formerly a private in Company C, First U. S. Colored Volunteer Infantry, filed her applicatiou under the act of June 27, 1890, as amended by the act of May 9, 1900, on March 6, 1901, claim being rejected on October 2, 1902, on the ground that the claimant had no title as said widow. appeal was filed on November 7, 1902.

An

A special examination was held, and while it was impossible to fix dates with exactness, the following facts were disclosed:

This claimant before and during the war of the rebellion was a slave of John Carter, in Louisa County, Va. At the close of the war she commenced to live with one Dabney Smith, and so continued to live with him, ostensibly as his wife, until about the year 1870. The daughters of claimant's former master have testified, from personal knowledge, that the claimant and Dabney lived together in the relation of husband and wife, three children being born to them. One of these children is now living in the city of Washington. None of the witnesses above referred to ever knew of any ceremony of marriage being performed, but they all unite in stating that the said parties lived together in a matrimonial relation, and that, apart from any marriage ceremony, they were known as husband and wife and conducted themselves as such. Other reputable witnesses have testified to the same facts. On July 14, 1873, the claimant married the soldier by ceremony, and continued to cohabit with him until his death on December 12, 1900. Claimant asserts that Dabney deserted her about the year 1870, and inasmuch as he did not return to her she thought she had a right to marry again. She admits that she lived with Dabney, sustaining the relation as wife to him, and that she had two children by him.

Shortly after the passage of an act by the legislature of Virginia, on February 27, 1866, said act being hereinafter set forth, the United States military authorities made a list of persons supposed to come within the terms of said act, in the said Louisa County, and said list is now on file in the county court. A transcript of the record contains the names of claimant and Dabney Smith, said list being—

A register of colored persons of Louisa County, State of Virginia, cohabitating together as husband and wife on the 27th February, 1866.

The date of commencement of cohabitation of the parties as recorded in the register is 1865. The transcript is signed by the clerk of the

Louisa County court who has charge of the records, and the seal of the court is attached to the document.

The act of February 27, 1866, is as follows:

(2.) That where colored persons, before the passage of this act, shall have undertaken and agreed to occupy the relation to each other as husband and wife, and shall be cohabitating together as such at the time of its passage whether the rites of marriage shall have been celebrated between them or not, they shall be deemed husband and wife, and be entitled to the rights and privileges, and subject to the duties and obligations of that relation, in like manner as if they had been duly married by law; and all their children shall be legitimate, whether born before or after the passage of this act. And when the parties have ceased to cohabit before

the passage of this act, in consequence of the death of the woman, or from any other cause, all the children of the woman recognized by the man to be his shall be deemed to be legitimate.

It is clearly shown by the facts in evidence that these parties, claimant and Dabney Smith, were, on the passage of the act quoted, living together as husband and wife; had been for a year prior to its passage, and so continued for four years after its passage. And further, there can be no doubt whatever as to the existence of a bona fide matrimonial intent in the minds of both the claimant and Dabney. The act quoted fastened upon these persons all "the duties and obligations of that relation in like manner as if they had been duly married by law," and the claimant will not now be heard as asserting, when her title to pension is at stake, that it was not either her or Dabney's intent to do that which their acts show they really did intend. A court of law would estop her from denying the results of her own free act.

It is possible the claimant had an honest belief that she had a right to marry the soldier because her first husband had deserted her. Such belief, however, on her part, can not alter the law. Under the facts in the case the act of February 27, 1866, made claimant and Dabney Smith husband and wife, and her attempted marriage to soldier was null and void, for the reason that such attempted marriage took place at a time when the claimant had a lawful, living, and undivorced husband. Claimant admits that no divorce was ever obtained between herself and Dabney Smith, and there are no grounds on which to base a presumption of the death of her first husband.

Action affirmed.

MINOR'S PENSION-ACT JUNE 27, 1890–WIDOWS.

MINOR OF JAMES R. GRAVES.

A minor child of a deceased soldier is entitled to pension in its own right, under the third section of the act of June 27, 1890, if such soldier left no widow having a pensionable status.

Assistant Secretary F. L. Campbell to the Commissioner of Pensions, January 26, 1903.

James R. Graves served as a private in Company C, First Battalion Sixteenth Kentucky Volunteer Cavalry, and Company L, Twelfth

Kentucky Volunteer Cavalry, from enlistment, December 20, 1863, until honorably discharged, August 23, 1865.

He died October 18, 1894, leaving a widow, to whom he was married November 5, 1893, and a child, Sammie Graves, claimant herein, the offspring of a former marriage, whose mother died December 7, 1891, she having married the soldier November 21, 1882.

October 26, 1894, the said child, then being 6 years 1 month and 11 days old, applied, through a properly appointed and qualified guardian, for pension as a minor under the act of June 27, 1890.

The application was rejected June 27, 1895, on the groundthat soldier left a widow surviving who was married to him subsequent to the passage of the act of June 27, 1890, but may have title under another law.

Claimant, through his guardian, duly appealed, and by departmental decision of July 20, 1896, the action of the Bureau was affirmed on the authority of the case of minor of Lafayette G. Howard (8 P. D., 230), holding, as quoted in the decision of affirmance, that—

the minor children of a deceased soldier have no title to pension in their own right under the act of June 27, 1890, while the widow of such soldier is living and not remarried, unless such widow has forfeited her right to pension under the act of August 7, 1882, or section 4706 Revised Statutes, notwithstanding such widow married such soldier subsequent to the passage of said act.

It appears that shortly after the rendition of above departmental decision, to wit-on August 10, 1896, the widow of soldier remarried, and the Bureau being of opinion that the remarriage of the widow opened the way for the minor's pension, notified the attorney that upon filing a new application for the minor the same would be considered by the Bureau. Thereupon, under date of July 18, 1897, the attorney asked that the minor's claim be considered under the original application filed in 1894.

August 22, 1898, the Commissioner replied, saying:

Your attention is invited to the fact that all pensions under the act of June 27, 1890, must commence from the date of filing the application, and that at the date of the former filing your client had no title, hence the necessity of a new declaration. Under this ultimatum the guardian, John F. Tucker, again applied, September 3, 1898.

Pending the Bureau investigation of this last application, and on April 20, 1899, claimant, by his counsel, filed a paper in the nature of an application for reconsideration of departmental decision of July 20, 1896, affirming the action of the Bureau in rejecting the claim, because of no title in the minor during the widowhood of his stepmother, etc.

This is the matter now here for consideration. The soldier, at his death, was pensioned at $10 per month under the act of June 27, 1890, for rheumatism and resulting disease of heart and debility."

He died of dysentery.