of appeal, that a settlement for townsite purposes under the act of May 14, 1890 (26 Stat., 109), is not subject to the charge of abandonment, this would be conclusive against your office decision, and no other ground would require consideration. No brief is filed in support of this contention and no authority cited except the act itself, and no reference is made to any particular clause or section of the act. The act in all its provisions has been examined, and it is not found that it admits of the construction contended for. The general scheme of the - act is to have townsite entries in Oklahoma made by trustees for the benefit and use of the occupants, and the sixth section provides, when final entry is made, that the title of the United States to the land covered by it shall be conveyed to said trustees for the uses and purposes contained in the act. In 14 L. D., 295, it was held that the issuance of patent to townsite trustees was not a disposition of the government title, so as to take the same without the supervision of the Secretary of the Interior, and if this be true, certainly a mere settlement, nominally for townsite purposes, before entry, will not have that effect. It must be held that the contention is not supported by the law, and that settlement rights under this act may be lost by abandonment, before final entry by the trustees. Neither the probate judge nor any one of the boards of trustees has ever got further in this case than to file application to enter and offer final proof. Such proof has not been accepted and followed by final entry. That offered by the probate judge was rejected in accordance with instructions of February 14, 1894 (18 L. D., 122), in which it was held that probate judges are not invested with authority to make townsite entries within the Cherokee Outlet.

The status of this land is that an application by trustees to enter it was pending at the time the charge of abandonment was made, and is still pending. In my opinion such charge can be properly entertained, and if it is made to appear that not more than one head of a family remains on the land as an occupant, the application can be properly rejected.

The question as to whether or not Brummett is estopped from setting up claim to this land under the homestead laws, by reason of having been one of the former townsite claimants and occupants will be next considered. It is shown that his father was a member of the townsite company or committee which managed and directed the affairs of the settlers in the original effort to found a town, and that in his official capacity he sold lots and issued certificates to the purchasers, and he is charged with having used his influence finally to prevent its growth and success. The charge of bad faith on his part is by implication also made against the protestant, Alonzo Brummett. He concedes that be occupied and improved a town lot, and intended to acquire title under the townsite laws, but when the town commenced to go down he abandoned it; he sold his building to his father and formed the purpose of

claiming the land under the homestead laws. The record has been examined with a view to determine whether or not he has done anything which would in law estop him from objecting to the perfection of the townsite entry, and I have not been able to find that he is so estopped.

The remaining question is, whether the motion of Winfield, Rosewell and others to reopen the case for further hearing should have been granted. The affidavits filed in support of that motion were not addressed to the proposition of showing actual occupancy of town lots, but ownership of such lots, and that they would have been occupied if the owners had been encouraged in the scheme of building a town. They did not propose to show that the town was not abandoned, but asked to be allowed to show why it was not occupied. The effort to establish this town had lasted about three years, and it then had one family residing in its limits, according to the proof, and nearly all buildings and improvements had been removed. The local officers, at the close of the hearing, found as a fact that the land was used by one occupant only, and that he had four buildings on it used chiefly by this one occupant; that it was situated one and a half miles from the small town of Lamont, which contains from twelve to fifteen buildings. It appears from the affidavits filed in support of the motion to reopen that the hope of building this town rested largely on a plan to have the Lamont people abandon their town and remove to it. This plan did not succeed and the place at the date of the hearing was not occupied as required by law. It is not decided what number of occupants would authorize an entry in trust under the law, but certainly such entry must be for occupants, and it would seem that the showing in this case was not sufficient to authorize the entry. The facts in relation to the attempt to found this town are fairly presented in the decision appealed from, on pages 4 to 7 inclusive, and need not be restated here. It is sufficient that the attempt was a failure. It is insisted that the former occupants and lot owners should have had notice of the hearing. Your office properly held that notice to the trustees was notice to them. It is further insisted that Alonzo Brummett's affidavit of protest should have been dismissed, because of its corroboration by his father, who was interested in the townsite. Your office, in the exercise of a sound discretion had the right to order a hearing, to ascertain the present status of the land, where it was represented and charged to be abandoned. It is reported by the local officers that Alonzo Brummett paid the costs and expenses of the hearing. There was no error in ordering the hearing. Your office as a result of the hearing or the facts presented thereat rejected the proof and the application to enter by the townsite board, and reserved for determination hereafter any rights which Alonzo Brummett and M. Winfield may have in the land, when they present applications for it, and said decision is affirmed.

HODGES ET AL. v. COLCORD.

Motion for review of departmental decision of February 27, 1897, 24 L. D., 221, denied by Secretary Bliss May 25, 1897.

PRACTICE-ATTORNEY-CONTEST-GUARDIAN-PREFERENCE RIGHT.

PHILLIPS v. SMITH.

An attorney in good standing, admitted to practice before the Department, is not required to file written authority to appear on behalf of his client.

A duly appointed guardian of the minor children of a deceased soldier may institute a contest, on behalf of his wards, against an entry, and, in the event of success, exercise the preference right by filing a soldier's declaratory statement for the benefit of said minor children; and this right will not be defeated by the failure of the guardian to set forth in the affidavit of contest the capacity in which he was then acting.

Secretary Bliss to the Commissioner of the General Land Office, May 25, (W. V. D.) (W. M. W.)

1897.

The case entitled Tilton S. Phillips, administrator and guardian, v. Albert A. Smith, has been considered on the appeal of the latter from your office decision of December 18, 1895, rejecting the desert land declaration of said Smith for the NE. † of Sec. 24, T. 9 N., R. 22 E., W. M., North Yakima, Washington, land district.

Counsel for Phillips asks to have the appeal dismissed:

1. The time for appealing from the decision of the Honorable Commissioner had expired before this appeal was taken. Rule 83 U. S. L. O. Practice. 2. The attorneys, Whitson and Parker, have no authority to institute the appeal herein under rule 101 G. L. O. Practice, not having filed any written authority from the appellant, Albert A. Smith.

The register of the local office reported to your office, nuder date of February 24, 1896:

That the parties were duly notified of your decision therein by registered mail on December 24, 1895 (the receipts for which are here with enclosed), and Phillips appeared and filed soldier's declaratory statement No. 42, covering the tracts involved. And that on this 24th day of February, 1896, A. A. Smith filed his appeal from your decision.

The post office registered receipt, dated on February 24, 1896, with affidavit of mailing of the appeal, is attached to the papers showing the appeal was mailed on said date, addressed to the attorney for Phillips.

It is clear that the motion to dismiss the appeal is without merit, for the reason that the notice of the appeal is shown to have been served in time under Rule 87 of the Rules of Practice, and for the further reason that an attorney in good standing, admitted to practice before the Department, is not required to file written authority to appear on behalf of his client. Dober v. Campbell et al. (on review), 18 L. D., SS.

It appears that on February 1, 1892, Wallis B. Williams made homestead entry for the land in question.

On March 13, 1893, Tilton S. Phillips filed an affidavit of contest against Williams's entry, alleging abandonment. Said contest was finally decided in favor of Phillips by the Department on April 18, 1895 (306 L. and R., 478). Said entry was canceled by your office letter of June 26, 1895.

On July 2, 1895, Albert A. Smith offered to file his desert land declaration for the land in question, and tendered the requsite purchase money. The register suspended this declaration to await the action. of Phillips under his preference right as a successful contestant.

On July 22, 1895, Tilton S. Phillips offered by virtue of his preference right to file a soldier's declaratory statement in his capacity as the duly appointed administrator of Clayton S. Phillips, a deceased soldier, and guardian of his minor children, Ina May, Oliver Morton, Joseph Clinton, and Myrtle Grace Phillips.

Tilton L. Phillips filed with his application an affidavit, stating that he is the identical person who contested Williams's entry for the land in question, and that he

did the same as administrator and guardian of the estate of Clayton S. Phillips, deceased, not having any right of my own to use. That at the time I instituted this action I asked that my filing for this land be accepted by the land office, and was informed that it was not necessary, that I would be allowed thirty days after cancellation to make my said filing of record.

He presented with his application a copy of the discharge of Clayton S. Phillips from the United States army, which shows that said soldier was enrolled as a private in Company H, 6th Mo. Cavalry, on the 10th day of January, 1862, to serve three years or during the war, and was honorably discharged on the 30th day of January, 1865. Also certified copies of his appointment as administrator of the estate of Clayton S. Phillips, deceased, dated June 10, 1888, and of his appointment as guardian for Ina May Phillips et al., on January 20, 1893.

The register and receiver rejected Phillips' application to file soldier's declaratory statement on the ground:

That in the contest of T. S. Phillips r. W. B. Williams, by which the tract described were made subject to entry, the parties in whose interest and name this entry is sought to be made are strangers to the record and have no preference right to file therefor, and that Albert A. Smith filed D. L. application for the same land on July 2, 1895.

Phillips appealed.

On December 18, 1895, your office reversed the judgment of the local officers, on the grounds that:

Under Sec. 2307 R. S. of U.S., the guardian had a clear right to make a homestead filing and entry for the benefit of his wards, and he was not deprived of such right by the fact that the land upon which he desired to exercise it was covered by the abandoned entry of Williams, which he, the guardian, proceeded to remove from the

records, going to considerable expense with the laudable object in view of providing a home and sustenance for his orphaned charges.

After the guardian had removed the obstacle which barred the way to the accom plishment of this worthy purpose, it would be extremely inequitable to allow a stranger, like Smith, to reap the benefits of Tilton S. Phillips' charitable work conscientiously performed in the discharge of his duty to his wards.

Smith appealed.

The assignment of errors is as follows:

1. Error committed in holding that a preference right to enter a tract of land can be acquired by contest in the name of another.

2. Error committed in considering the ex parte affidavit accompanying the application of said Phillips without service upon or notice thereof to Smith.

3. Error committed in holding that the preference right to enter, acquired by contest, can be transferred.

4. Error committed in rejecting the application of Smith to enter said land.

5. Error committed in allowing the application of said Tilton S. Phillips as guardian.

In support of these errors the cases of Welch v. Duncan et al., 7 L. D., 186; Kellem v. Ludlow, 10 L. D., 560; Tillinghast e. Van Houten, 15 L. D., 394, and Matthews v. Barbarovie, 18 L. D., 446, are cited and relied upon. These cases hold that the preference right of a successful contestant can not be transferred to another person; and that a transferee in such case acquires no right that can be asserted as against the intervening entry of another. If the filing of a soldier's declaratory statement by Tilton S. Phillips for the land in question, on behalf of his wards, who are minor children of a deceased soldier, amounts to an assignment or transfer of the preference right of entry from said Phillips to his wards, the appellants' contentions are well founded and should be sustained. If, on the other hand, Phillips as the duly appointed and qualified guardian of the minor children of a deceased soldier had the right under the law to prosecute a contest against Williams's entry, and, upon the successful termination of said contest resulting in the cancellation of said entry, to exercise such preference right by filing a soldier's declaratory statement in the names and for the benefit of his wards, then plaintiff's contention must fall, and your office decision be affirmed.

Before considering these questions, it seems to be proper to observe that during the time allowed Phillips as a successful contestant to exercise his preference right of entry under the law every question in connection with the exercise of that right was solely between Phillips and the government. If he exercised his right in accordance with law, Smith would have no right to complain, for he could acquire no right under his desert application until after the thirty days allowed Phillips by law to assert his claim had expired. Ailen v. Price, 15 L. D., 424; Cowles v. Huff et. al., 24 L. D., 81, and authorities citied.

Phillips's application to file soldier's declaratory statement was made within the thirty days allowed by law to assert his preference right of entry, and during that time all he was required to do was to satisfy the