Under the act of 1882, supra, if the adverse claimant resides outside the land district where the claims involved are situated, or is at the time beyond the district limits, the oath to the adverse claim may be made in the State or Territory "where the adverse claimant may then be." That the facts in this case do not bring the Louisville Gold Mining Company within the terms of this statute is shown by the authorities herein cited. A corporation created under the laws of Colorado, its residence is in that State and in that State only. It could not migrate therefrom, or change its residence to the State of Kentucky, or follow its president to that State.

Prior to the act of 1882 the oath to an adverse claim was required to be made by the claimant, and to be verified before an officer authorized to administer oaths within the land district wherein the claims were situate (Sec. 2335, R. S.). That act gives power to any duly authorized agent or attorney in fact, cognizant of the facts stated in the adverse claim, to make the oath. This provision of law is ample to have afforded relief in the present case. The oath to the adverse claim by the president of the corporation made in Louisville, Kentucky, does not meet the requirements of the law. Treated as the oath of the corporation, it is not within the act of 1882 because at the time the oath was made, the corporation was not residing, nor did it have its being, in the State of Kentucky. Treated as the oath of the president, as agent of the corporation, it cannot be accepted, because not made within the land district where the claims are situated. (Par. 80 of the Mining Regulations, 31 L. D., 474, 487.)

In view of the foregoing it is clear that the adverse claim in question has not been verified in accordance with law, and, therefore, presents no reason for a stay of proceedings under the application. for patent.

The decision of your office is modified to conform to the views herein expressed.

This much determined, it becomes unnecessary to pass upon other questions suggested in the record.

FINAL PROOF-WIDOW-HEIRS.

DAVID R. WEED.

There is no law authorizing the submission of final proof by the heirs of a deceased entryman during the lifetime of his widow.

Where final proof is submitted by and on behalf of the heirs of a deceased entryman, during the lifetime of his widow, there is no authority of law for the issuance of final certificate and patent thereon in the name of the

widow.

Secretary Hitchcock to the Commissioner of the General Land Office, (F. L. C.) June 30, 1905.

(E. P.)

June 13, 1896, David R. Weed made homestead entry of the NE. of Sec. 12, T. 38 N., R. 16 W., Eau Claire land district, Wisconsin. November 7, 1903, Hose Weed, a son of David R. Weed, then deceased, submitted final proof on behalf of the heirs of the entryman, and in a corroborated affidavit filed at that time, alleged that on November 28, 1898, the entryman died, leaving a widow, Jennie Weed, his second wife, and three minor children by his first wifethat prior to the death of said David R. Weed she [Jennie Weed] left the home of said David R. Weed on the land in question, with a man named Michael O'Brien and never returned thereto, and has never since resided upon said land or cultivated the same, and in fact has never been heard from since, except that affiant learned about one week after the death of said David R. Weed, she married the said Michael O'Brien.

It appearing to the local officers from the proof submitted that the heirs of the entryman had cultivated the land for the necessary period after the death of the entryman, the proof was approved and final certificate issued in the name of the heirs.

Your office, by decision of March 9, 1904, held as follows:

There is no authority of law for the submission of final proof by one of the heirs during the life time of the widow. It has been decided, however, by this office, in the case of Luther B. Parker, by letter to Register and Receiver, Huntsville, Alabama, August 8, 1899, that such final proof may be allowed to stand, providing that heirs are willing to have the certificate and patent issue in the name of the widow, in which case, the entry can be submitted to the Board of Equitable Adjudication.

In view of said decision, should the heirs of David R. Weed elect to have final certificate and patent issued on the proof submitted, in the name of Jennie O'Brien, formerly Jennie Weed, widow of David R. Weed, they will be allowed to file an application to that effect, signed and acknowledged by each of them. Notify Hose Weed at Downing, Wisconsin, the post office address given in the proof, that unless he files such evidence or appeals herefrom within 60 days from service of notice, the entry will be canceled without further notice to him from this office.

The Department is of opinion that there is no authority of law for the ruling of your office to the effect that, with the consent of the heirs of the entryman, certificate and patent may issue in the name of the entryman's widow upon the proof submitted. She was not one of the class for whose benefit such proof was submitted; she has never submitted proof; she has not, as appears from the record herein, in any respect complied with the law in the matter of residence upon the land or cultivation thereof since the death of the entryman. She would not, therefore, be entitled to receive patent for the land even if the heirs should consent thereto.

So much of your office decision, however, as holds that there is no authority for the submission of final proof by the heirs of an entryman during the lifetime of the entryman's widow, is clearly in accordance with the recent rulings of the Department (See Steberg v. Hanelt, 26 L. D., 436; Keys v. Keys, 28 L. D., 6). The final proof submitted on behalf of Weed's heirs will, therefore, be rejected, and the final certificate canceled.

The decision appealed from is accordingly modified as herein indicated.

INDEX.