25. Reimbursement as to funeral expenses, etc.—Continued. (ƒ) Reimbursement under act of March 2, 1895—Continued.

out of the accrued pension which was or might be allowed such deceased pensioner to date of her death, provided she did not leave sufficient assets to meet such expense. Malissa Ray (Asst. Sec. Reynolds), 7 P. D., 556.

The act of March 2, 1895, may be considered as a legislative construction of section 4718, Revised Statutes, intended to take the place of the departmental construction of September 28, 1892. Under the construction of the law prior to that date, reimbursements for the funeral expenses of a deceased mother pensioner or applicant for pension might be made from her accrued pension. The act of March 2, 1895, confirmed this construction and made it effective from September 28, 1892. Mother of George Kerr (Asst. Sec. Reynolds), 8 P. D., — (g) Reimbursement under widow's claim for arrears.

An invalid pensioner having died, prior to January, 1879, leaving a widow but no minor children, said widow filed a claim for arrears alleged to be due under acts of January 25 and March 3, 1879; such claim was allowed subsequent to her death: Held, That the expenses of the last sickness and burial of both the pensioner and his widow may be reimbursed from the amount found due under the said claim for arrears. George and Annie Wolf, in re John and Eliza Smith (Sec. Kirkwood), 8 P. D. (o. s.), 342.

See also COMMENCEMENT; DECLARATIONS; DISLOYALTY; FEE; JURISDICTION; MISTAKE; REVOLUTIONARY WAR;

SUSPENSION.

ACCRUED RIGHTS.

See ACCRUED PENSION; BOUNTY LAND; VESTED RIGHTS.

ACKNOWLEDGMENTS.

See FEE CONTRACT; MINORS.

ADDITIONAL PAYMASTERS.

See SERVICE.

ADDITIONAL PENSION.

See COMMENCEMENT; INCREASE.

ADJUDICATION.

See PRACTICE.

ADMINISTRATORS.

Where a pensioner failed during his lifetime to make any application for the benefit of the sixth section of the act of July 27, 1868, dating pension from discharge, his administrators may not apply therefor after his death.

of Louis A. Saunders (Sec. Cox), 7 L. B. P., 45.

See also ATTORNEYS; BOUNTY LAND.

ADULTEROUS COHABITATION.

1. Statutory term construed.

2. Act of August 7, 1882, is not retroactive.

3. Act does not apply to applicants for pension.

4. Act applies to both pensioners and applicants.

5. Act does not apply to mothers.

6. Act may apply to mothers.

7. Evidence and proof.

8. Principle involved.

9. Burden of proof.

10. As affecting title under act of June 27, 1890.

1. The statutory term construed.

Administrator

The words "open and notorious adulterous cohabitation," as used in the act of August 7, 1882, are descriptive merely of acts which would deprive a widow of her pension, and mean that any widow pensioner who is guilty of immoral and licentious acts, of an open and adulterous character, should forfeit her pension. Mary E. Boeke (Asst. Sec. Hawkins), 1 P. D., 427.

The phrase "adulterous cohabitation" is not necessarily confined to the meaning given to the word in criminal decis ions and in criminal jurisprudence; but, as used in the act of August 7, 1882, must be regarded as descriptive of acts of immorality and lewdness. Minerva Beede (Asst. Sec. Haw

kins), 2 P. D., 119.

The words "adulterous cohabitation of a widow who is a pensioner" are not used in said act in their technical but their popular signification, and apply to a widow who openly and notoriously lives with a man upon terms of illicit intimacy. Alice Gray (Asst. Sec. Reynolds), 7 P. D., 134.

2. Act of August 7, 1882, is not retroactive.

The act of August 7, 1882, does not affect a widow whose adulterous cohabitation ceased before the passage of the act. Elsie A. Parker (Asst. Sec. Joslyn), 15 P. D. (0. s.), 49.

Contra: Minerva Beede (Asst. Sec. Hawkins), 2 P. D., 119. The provision in the act of August 7, 1882, relating to adul terous cohabitation has no effect to deprive a widow of her

2. Act of August 7, 1882, is not retroactive-Continued. pension if the adulterous cohabitation ceased before the pas sage of the act. Sarah E. West (Asst. Sec. Bussey), 3 P. D., 115. The decision in the case of Sarah E. West (3 P. D., 115), holding that the provisions of the act of August 7, 1882, relative to adulterous cohabitation have no retroactive effect, and can not be held to operate to deprive a widow of her pension if such cohabitation ceased before the passage of the act, is affirmed. Caroline Knappenberger (Asst. Sec. Bussey), 3 P. D., 263.

The act of August 7, 1882, has no application to adulterous cohabitation prior to its passage. Citing Sarah E. West, 3 P. D., 115. Sophia Lingers (Asst. Sec. Bussey), 4 P. D., 287. The legal authority to make forfeiture of the widow's pension the result of such "adulterous cohabitation" did not exist prior to the passage of the act of August 7, 1882, and the forfeiture clause of said act has no retrospective bearing. Matilda Payne (Asst. Sec. Bussey), 5 P. D., 161.

The act of August 7, 1882, is not retroactive, nor does it apply to a widow who is not a pensioner, but only an applicant for a pension. Cynthia A. Evans (Asst. Sec. Bussey), 5 P. D.,

188.

Overruled in part: 7 P. D., 207.

Claimant's illicit relations having terminated prior to the passage of the act of August 7, 1882, and not being a pensioner at that time, said act is not applicable to her case, as the same has no retrospective bearing. Harriet Ford (Asst. Sec. Bussey), 5 P. D., 239.

Adulterous cohabitation prior to August 7, 1882, is no bar to pension. Overruling decision, s. c., 8 P. D. (0. s.), 247. Constantia V. Auringer (Asst. Sec. Bussey), 6 P. D., 10.

Section 2 of the act of August 7, 1882, is neither penal nor retrospective in character or effect, and the open and notorious adulterous cohabitation of a widow occurring prior to the passage of the act does not operate to terminate her pension. Jennette Thompson (Asst. Sec. Reynolds), 7 P. D., 262.

The act of August 7, 1882, has no retroactive effect, nor will the open and notorious adulterous cohabitation of a widow, when such cohabitation had ceased before the passage of said act, deprive her of her pension. Harriet M. Fellows (Asst. Sec. Reynolds), 7 P. D., 387.

3. Act does not apply to applicants for pension.

The act of August 7, 1882, which provides that "the open and notorious adulterous cohabitation of a widow who is a pen sioner shall operate to terminate her pension," does not apply

3. Act does not apply to applicants for pension-Continued. to a widow who is an applicant for a pension, but its application is limited to a widow who is a pensioner. Sarah E. West (Asst. Sec. Bussey), 3 P. D., 115.

Overruled: 7 P. D., 207.

4. Act applies to both pensioners and applicants for pension. The open, notorious, and adulterous cohabitation of a widow who is a pensioner, or an applicant for pension, on account of the service and death of her husband, will work a forfeiture of her right to a pension; and such cohabitation may be proved by her conduct in habitually, openly, and notoriously consorting with one or more persons of the opposite sex under circumstances which would lead the guarded discretion of a reasonable and just man to infer from such relation, as a necessary conclusion, that it was illicit. Sarah E. West, 3 P. D., 115; Caroline Knappenberger, 3 P. D., 263; Sophia Lingers, 4 P. D., 287; Cynthia Evans, 5 P. D., 188; and all other decisions are modified and overruled in so far as they are in conflict with the above holding. Sarah J. Grooms (Asst. Sec. Reynolds), 7 P. D., 207.

5. Act does not apply to mothers.

The act of August 7, 1882, does not apply to mother pensioners, or applicants for pension. Overruling Catherine A. Williams. Mother of Royal Flint (Sec. Teller), 11 P. D. (o. s.), 274.

The act of August 7, 1882, providing that the open and notorious adulterous cohabitation of a widow who is a pensioner shall operate to terminate her pension from the commencement of such cohabitation, has no application to the case of a dependent mother. Caroline Knappenberger (Asst. Sec. Bussey), 3 P. D., 263.

6. Act may apply to mothers.

Abandonment of husband, without good cause, and adulterous cohabitation by a dependent mother bars her right to further pension. Lucinda M. R. Pool (Asst. Sec. Hawkins), 1 P. D., 401.

See DEPENDENT RELATIVES.

7. Evidence and proof of.

Where a widow pensioner lives in the same house for several months with a married man, in the absence of his wife, illicitly cohabiting with him, and said cohabitation results in the birth of a child: Held, To constitute "open and notorious adulterous 13201- 2

7. Evidence and proof of-Continued.

cohabitation" within the meaning of the statute. Mary E. Miller (Asst. Sec. Hawkins), 1 P. D., 171.

Overruled: 4 P. D., 287. Affirmed: 7 P. D., 207.

The birth of a child out of wedlock is sufficient proof of open and notorious adulterous cohabitation to terminate a widow's pension under the act of August 7, 1882. Mary E. Boeke (Asst. Sec. Hawkins), 1 P. D., 427.

Contra: 5 P. D., 93.

The birth of four illegitimate children is of itself sufficient, under the uniform rulings of the Department, to bring the claimant's case within the act of August 7, 1882, as to "open and notorious adulterous cohabitation." Citing Widow of George Martin, No. 270571, December 4, 1885 (Ruling 154), Digest, 1885, 19; Mary E. Miller, 1 P. D., 171; Mary E, Boeke, ib., 427. Minerva Beede (Asst. Sec. Hawkins), 2 P. D., 119.

A widow pensioner who has been guilty of open and notori ous adulterous cohabitation since the passage of the act of August 7, 1882, will be dropped from the pension roll upon proof of such fact; and the birth of an illegitimate child, and the continuous residence and association under the same roof with the father of her illegitimate child, will be accepted as proof of such adulterous cohabitation. Susan Larimer (Asst. Sec. Bussey), 3 P. D., 235.

A "cohabitation" that can not be observed by the nearest neighbor, nor either noticed or heard of by the community in which the pensioner dwells, can not be "open and notorious," as required by the statute as ground of forfeiture. Louisa H. Pratt (Asst. Sec. Bussey), 5 P. D., 93.

The fact that a widow, during all the time she was receiving a pension, was living with a man in the same house and in the same room, in which there was but one bed, with no other occupants in the house than the small children of such persons, constitutes such open and notorious adulterous cohabitation as is contemplated by the act of August 7, 1882, and such conduct operates to terminate such widow's pension. Alice Gray (Asst. Sec. Reynolds), 7 P. D., 134.

Illicit intercourse may be inferred from circumstances that lead to it by fair inference as a necessary conclusion. Ibid. See also Sarah J. Grooms, SUBTITLE 4.

8. Principle involved.

The forfeiture of a widow's pension under the act of August 7, 1882, is based on the assumption that pensioner has substi tuted a paramour for her deceased husband, and is supported by him, thereby putting an end to her pensionable status. Sarah E. West (Asst. Sec. Bussey), 3 P. D., 115.