all their rights as heirs at law of John, he having died unmarried. This arrangement having been completed, Eli continued to cultivate and improve the land, and paid the debt as rapidly as he could.

It appears that two of the sisters lived in Washington, and letters from them show that they had each received $50, and each expressed herself ready and willing to sign the deed whenever Eli could pay the balance of the purchase money.

Pending these matters, and while Eli was financially embarrassed, by the unexpected death of John, and the consequent additional expenses to be paid, he was trying to comply with the law and secure the land, as heir of Mrs. Shular, but being fearful that it would not be so held he had made a filing for it in his own name.

Gott, after his wife had sold her interest to Eli and received pay and executed her deed therefor, went on to the land and erected a shanty, and made a homestead entry therefor. When Eli offered final proof, Gott appeared and protested, and the register and receiver awarded the land to Eli W. Shular, dismissing Gott's protest.

After nearly seven years had elapsed and Mrs. Shular's estate had been thus amicably settled, as between the heirs and also by her creditors, substituting Eli for her, and when it appears that she had no personal estate, Z. Decker, for some reason which does not appear, is appointed administrator of her estate, and asks to intervene in this

case.

The law is so worded that the administrator or an heir can take up her pre-emption claim and complete it. Ordinarily, when the heirs are of full age, they would have preference by the common law; the real estate is not assets in the hands of an administrator.

Under the homestead law (Section 2292), where both parents die leaving minor children, the executor, administrator, or guardian may sell the land for the benefit of such heirs, but, if the heirs are of full age, the administrator has no right to interfere, and it was certainly not intended by the statute relating to pre-emptions that the administrator should interfere where the heirs were of age and attempting to comply with the law and complete the entry.

Besides, in the case at bar, the administrator is entirely too late. It is quite evident that the matter of his appointment and application are simply to defeat the claim of Eli. It is the outgrowth of the effort of Gott to get the land, with all the valuable improvements placed on it by Eli, to take from him, if possible, seven or eight years of toil, this, too, after his wife had received all she asked for her claim and probably all it was worth at the time it was sold.

Carefully reviewing the record, I find no reason for disturbing your conclusions, which concur with those of the register and receiver.

The application of Z. Decker, as administrator, to intervene is rejected, and as his appeal was irregular, he not having been a party to the case, that branch of his case is dismissed.

Your decision is affirmed.

PRE-EMPTION SETTLEMENT-SECTION 2260 R. S.

WILSON v. BERGEN ET AL.

One who quits or abandons land, in which he owns an undivided interest, to reside on
public land in the same State is within the inhibition of section 2260 R. S.
First Assistant Secretary Chandler to the Commissioner of the General
Land Office, September 5, 1891.

I have considered the appeal of William Wilson from the decision of your office of April 10, 1890, rejecting the final proof of Wilson for the SE. of Sec. 21, T. 27 S., R. 37 E., Gainesville, Florida, and accepting the final proof of John F. Bergen under his pre emption declaratory statement for said tract.

This tract was claimed by William H. H. Gleason under homestead entry made October 14, 1885, also by John F. Bergen under pre-emption declaratory statement, filed October 9, 1885, alleging settlement October 1, 1885, and by William Wilson under declaratory statement filed October 29, 1885, alleging settlement September 24, 1885.

A hearing was had, and upon the testimony offered at said hearing the local officers recommended "that Gleason's entry be canceled, Wilson's proof be rejected on the ground that he is not a qualified preemptor, and that Bergen be allowed to make cash entry of the land in controversy." From this decision Gleason did not appeal.

On appeal by Wilson, you affirmed said decision, and held that Gleason having failed to appeal from the decision of the local officers, so far as it affects his entry, it has become final. Wilson again appealed, alleging error in holding that he removed from land of his own to reside on the public land, as he only owned an undivided one-fourth interest in the SW. of Sec. 21, T. 27 S., R. 37 E., and in rejecting his final proof, notwithstanding the admitted fact that he had complied with the law and was a prior settler.

The material issue involved in this case is, whether Wilson moved from land of his own to reside on the public land when he made his settlement upon the tract in controversy.

The evidence shows, as found by the local office and by your office, that he lived on land adjoining the tract in controversy when he made his settlement, in which he owned one fourth interest. This fact is not denied by the appellant, but he claims that such fact does not bring him within the inhibition of section 2260 of the Revised Statutes, for the reason that he was only the owner of an undivided one-fourth interest in said property.

The facts in this case bring it within the rule announced in the case of Richards v. Ward, 9 L. D., 605, to wit: that one who quits or abandons land in which he holds an undivided interest, to settle on public land in the same State or Territory, is within the inhibition of section 2260 of the Revised Statutes, and must be ruled thereby.

The decision of your office is affirmed.

RESERVATION FOR GOVERNMENT USE.

JOHN F. WEH ET AL.

The reservation of one acre for government use at Guthrie, Oklahoma, is not defeated though the tract selected is not located in exact accordance with the proclamation of the President.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 5, 1891.

By letter of September 2, 1889, you approved the action of the local officers rejecting the claims of John F. Weh and Samuel S. Marsh to certain lots situated on the acre of land reserved for government use on the NE. of the SE. of section 8, T. 16 N., R. 2 W., Guthrie, Oklahoma.

From your action, said parties by their attorneys, file an appeal.
The grounds of appeal are stated as follows:

First, That said Hon. Commissioner of the General Land Office erred in approving and confirming the decision of the said register and receiver in this case;

Second, That said Hon. Commissioner of the General Land Office erred in not reversing the decision of said register and receiver and in not directing them to take and hear testimony in this case.

The only attempt at a valid assignment of error is contained in the closing sentence of the second specification, and this is so general in its character that it hardly reaches the standard required by the rules of practice, and in my opinion, the appeal might be dismissed under rules 88 and 90 of the rules of practice; McLaughlin v. Richards (12 L. D., 90).

But aside from the technical defect in the appeal, I do not think the claims of Weh and Marsh have any foundation, either in law or in equity. By the proclamation of the President of the United States, dated April 20, 1889, one acre in square form in the NW. corner of the NE. of SE. of Sec. 8, T. 16 N., R. 2 W., was reserved for government use, but it can not, I think, be successfully maintained, that the tract thus to be reserved, must of necessity, be located in the extreme northwest corner of the legal subdivision designated. The primary object in reserving the tract was to secure a place for the occupaucy of the United States land office. An acre was selected and thus occupied by the proper officers of the government and the intention of the President was thus carried into effect, even though the tract selected was located a few rods east of the extreme corner designated in the proclamation. Hence the action of the local officers, and of your office, was correct, and is affirmed.

PRACTICE-APPEAL-APPLICATION TO ENTER.

JOHN A. STONE.

An applicant for public land who fails to appeal from an order of rejection loses all rights under his application.

The local officers have no authority to extend the time within which an appeal may be taken from their action, or to stipulate that a rejected application shall be held in abeyance to await departmental action in a similar case.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 5, 1891.

This is an appeal by John A. Stone from your office decision of May 26, 1890, rejecting his desert land application for Sec. 28, T. 14 N., R. 18 E., North Yakima, Washington.

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It appears that on April 25, 1888, Stone applied at the local office to make desert entry for said tract; that with said application he tendered an initial payment" of twenty-five cents per acre; that said application was rejected "for the reason that the price of the land was double minimum;" that no appeal was taken from this action "but it was stipulated between Stone and the local officers" to abide the decision in the like application of Richard Strobach, then pending on appeal in your office; that June 20, 1888, your office affirmed the local office in rejecting Strobach's application; that August 1, 1889, the Department affirmed this action; that February 24, 1890, Waterman A. Bowen made timber culture entry for the SE. of said section 28; that March 13, 1890, Stone again made desert application for said section, and tendered "as an initial payment therefor" fifty cents per acre; that said application, as shown by endorsement was rejected by reason of conflict with Bowen's timber culture entry, and that on appeal by Stone, your office by its said decision sustained said action.

It is alleged on appeal that by said stipulation the local officers agreed to give Stone written notice of your office decision in the Strobach case, and thereafter for thirty days suspend the land from entry and filing, and that such notice was not given. It is accordingly urged, in effect, that Bowen's entry is invalid because made when Stone's first application was in fact pending, and that his second application should therefore be allowed.

By Stone's failure to appeal from the rejection of his first application such action became final. An appeal to your office within thirty days was, in the premises, the remedy prescribed by the department. See rules 43 and 67 of practice.

The local officers being without authority to enlarge the time prescribed for appeal from their action, the stipulation referred to was without effect and could not operate to preserve any rights which Stone may have acquired because of his first application.

It follows that when Bowen made his said entry, the land embraced therein was vacant. Bowen's entry being consequently valid Stone's second application was properly rejected for conflict therewith. The judgment appealed from is affirmed.

PRE-EMPTION CLAIM-TIMBER-CULTURE ENTRY-HOMESTEAD.

HOCHREITER v. FINLAYSON.

One who makes pre-emption filing for a tract, and subsequently abandons such filing and enters a portion of the land under the homestead law, exhausts thereby his pre-emptive right.

A pre-emption filing, and possession thereunder, by one who has previously exhausted his rights under the pre-emption law, will not exclude the land covered thereby from appropriation under the timber culture law.

The right to make an additional homestead entry under section 6, act of March 2, 1889, can not be exercised upon land covered by the existing entry of another.

First Assistant Secretary Chandler to the Commissioner of the General Land Office, September 7, 1891.

I have considered the case of John T. Hochreiter v. Daniel Finlayson, upon the appeal of the latter from your decision, rejecting his final proof, and holding for cancellation his pre-emption filing, for the S. of the NE. and the N. of the SE. of Sec. 26, T. 13 N., R. 16 W., Grand Island land district, Nebraska.

Finlayson filed declaratory statement for the land on the 1st of July, 1886, and on the 21st of March, 1857, Hochreiter made timber culture entry for the same tract. After giving due notice, Finlayson submitted final proof before the local officers, on the 9th of September, 1887, at which time Hochreiter filed protest, alleging that Finlayson's filing was in the interest of a third person, and that he had exhausted his preemption right prior to the filing in this case.

After considering the final proof, the evidence, and the stipulation of the parties, the register and receiver, on the 14th of March, 1888, rendered their decision, in which they rejected the final proof of Finlayson, and recommended that his filing for said land be canceled. Upon appeal to your office, that judgment was affirmed, on the 30th of January, 1890. A motion for a review of your decision, filed on the 15th of February, 1890, was denied by you on the 2d of April, of that year, and on the 23d of that month Finlayson filed in the office of the register and receiver an application to make homestead entry for the N. of the SE. of said section 26, as an additional homestead entry, under the provisions of the act of March 2, 1889 (25 Stat., 854). The local officers denied this application, for the reason that the land was already covered by the timber culture entry of Hochreiter. From this decision Finlayson appealed to your office, where it was affirmed on the 16th of July, 1890.