the language of Atherton v. Fowler, 96 U. S., 513), 'to invite forcible invasion of the premises of another, in order to confer the gratuitous right of preference of purchase on the invader.'" Falconer v. Hunt et al. (6 L. D., 516). Such being the reason of the rule, it does not apply to a case like the present, where there was no forcible intrusion upon the premises or invasion of the rights of another, but the settler, deferring to the rights of the record entryman, " paid for his improvements on the land, and, assuming peaceable possession, began the performance of such acts of settlement as were necessary to the establishment of a permanent home." Geer v. Farrington, and Falconer v. Hunt (supra). Accordingly, it has been held by this Department, that a desert land entry on land embraced in an abandoned timber culture entry of record, should, upon the cancellation of the latter, in the absence of an adverse claim, take effect from the day it was actually made (Owen D. Downey, 6 L. D., 23); and in consideration of the valuable improvements and residence of a pre-emptor and the absence of an adverse right, an entry based upon a filing made when the land was embraced within an uncanceled desert land entry was allowed to stand (Meyers v. Smith ib., 526); and, there being no adverse claim, a homestead entryman is allowed credit for a period of residence preceding his entry and while he held the land under a timber culture entry (Adam S. Harris, 8. L. D., 45. Falconer v. Hunt et al., (supra); and, a homestead entry having been allowed on land covered by a prior intact homestead entry, on the cancellation of sa id prior entry, was permitted to stand, the claimant's good faith being manifest and there being no adverse claim. Schrotberger v. Arnold (6 L. D., 425).

The act of 1880 is a remedial statute, "changing the policy of previ ous administrations, both as regards the right of settlers to make immediate entry without awaiting formal cancellation by your office, as well as giving them .. the right to regard settlement as a pre-emption in homestead cases (Frazer v. Ringgold, 3 L. D., 69). Being remedial, the statute should be liberally construed to advance the remedy proposed, and so construing it, it is said by this Department in the case of Falconer v. Hunt et al (supra), "What is evidently meant by the phrase 'public lands' as used in this statute, is 'public' in the sense that no other party had any claim thereto."

I am of the opinion, that under the facts of this case, the land involved herein was "public land" within the meaning of section three of the act of 1880, when settled upon by Newman, notwithstanding the prior entry of Strother was then uncanceled. Newman's settlement and entry, therefore, are within the purview of said section three, except as to the character of the land covered thereby, and, as hereinbefore shown, this objection is removed by the last proviso of said act of 1883, which em braces and makes valid prior homestead entries on mineral lands, initiated by settlement under said section three as well as those initiated by entry of record under the general homestead law.

It appears from Newman's corroborated affidavit, that his settlement was made in 1882, prior to the act of 1883, and that he has, as required by the last proviso of said act of 1883, "in all other respects" (except as to character of land) "complied with the homestead law."

In construing this requirement of the last or second proviso of the act of 1883, this Department in the case of Nancy Ann Caste (3 L. D., 174), says:

This must mean actual performance of subsequent conditions, without regard to original mineral character of the lands, although the same might have been reported as containing coal or iron; for the second (last) proviso is a limitation upon the first, which requires the public offering only of such lands as had been so reported. Its purpose, therefore, must be the protection of those inchoate rights of actual settlers which in all other cases confer the privilege of final entry, against the necessity of competition with strangers at a public sale for their own homes and improvements.

You are directed to allow his entry to remain intact, subject to future showing by final proof of compliance with the law, and the decision of your office holding said entry for cancellation is reversed.

The departmental decision in the case of James A. Jones (3 L. D., 176), in so far as it holds, that the last proviso of the act of 1883 only embraces entries of record made prior to said act, and not entries initiated by settlement prior thereto, is hereby overruled.

TIMBER CULTURE CONTEST-NOTICE-DEVISEE.

BONE v. DICKERSON'S HEIRS.

In contesting the claim of a deceased entryman due diligence should be exercised to ascertain the names and last known addresses of the heirs or legal representatives of the decedent, and, if ascertained, the notice should be to them by name, and served personally if possible.

The affidavit required as the basis of an order for publication is a condition precedent to such form of service, and in the absence of such affidavit no jurisdiction is acquired by publication of the notice.

The sole devisee of a deceased timber culture entryman is entitled to notice of a contest against the entry of the deceased, as the "legal representative" of the entry

man.

Secretary Noble to Commissioner Stockslager, May 4, 1889.

I have considered the case of William Bone v. the heirs of J. Frank Dickerson, on appeal by Ernest C. Dickerson from the decision of your office of November 17, 1886, holding for cancellation the timber-culture entry, of said J. Frank Dickerson, made October 8, 1880, on the NE. of Sec. 10, T. 125 N., R. 48 W., 5th P. M., Fergus Falls district, Minnesota.

The entryman, J. Frank Dickerson, died leaving a will, dated January 19, 1883, which was duly probated in the probate court of Traverse

county, Minnesota, February 7, 1885, and filed for record therein February 9, of said year. The first item of said will is as follows:

After the payment of my just debts and funeral expenses, I give, devise, and bequeath unto my brother, Ernest C. Dickerson, of Traverse City, Territory of Dakota, all and every part of my estate, both real and personal, wherever the same may be situated-said real estate being situated in the township of Arthur, county of Traverse, and State of Minnesota.

The lands above described as embraced in said entry are located in said county of Traverse and are doubtless the real estate referred to in said will, and devised therein to the appellant, said Ernest C. Dickerson, who is a brother of the testator.

William L. Dickerson, the father of the testator and of appellant, and who (the testator being a single man and childless) in the absence of said will would have been entitled to the property disposed of therein as heir under the laws of Minnesota is nominated as executor. He is exempted by the will from giving bond, is given no interest in the testator's property, real or personal, and it does not appear that he has ever taken out letters testamentary and qualified as such executor, or in any way accepted said executorship or entered upon the discharge of any of the duties thereof.

July 20, 1885, William Bone, the appellee, filed an affidavit of contest, alleging that "J. Frank Dickerson has failed and his heirs or legal representatives have failed to plant or cause to be planted five acres of trees, tree-seeds, or cuttings upon said tract during the fourth year after making said entry; that there are no trees or cuttings now growing or being cultivated on said tract, and that the present condition of said tract is wild prairie, and that the said J. Frank Dickerson has been dead for at least two years last past."

A hearing was ordered for September 28, 1885, and notice thereof to "the heirs of J. Frank Dickerson" was personally served on said William L. Dickerson as heir under the laws of Minnesota. This notice was also published, but there was no affidavit made or other evidence offered, as required by Rule of Practice 11 showing "that due diligence has been used and that personal service can not be made."

At the time set for the hearing, there was no appearance by or in behalf of said William L. Dickerson, either as heir or executor, but one J. H. Allen appeared specially as attorney for the appellant, Ernest C. Dickerson, and moved the dismissal of said contest, because no notice had been served on his client personally or by publication. The local officers overruled the motion, and, thereupon, said attorney, declining to appear further for the appellant, the testimony in behalf of the contestant was submitted ex parte. On this testimony the local officers decided in favor of the contestant. Your office, on appeal, in said letter of November 17, 1886, sustained the action of the local officers on said motion, holding "that the notice by publication was sufficient, he (appellant) being a non-resident of the State of Minnesota ;" and also

concurred in the finding of the local officers on the facts, and held said entry for cancellation. From this decision, the present appeal is taken.

If the appellant was entitled to notice, it is clear that the notice by publication (the only notice claimed as to appellant) was insufficient because there was no affidavit as required by Rule 11 of Practice, showing "that due diligence had been used and that personal service could not be made." This affidavit is held to be a condition precedent to notice by publication. Allen v. Leet (6 L. D., 669).

But the question arises, was the appellant, as sole legatee and devisee of the entryman, entitled to notice? There is no statute, or rule of this Department prescribing upon whom notice shall be served in such cases. As a general rule, all parties in interest are entitled to notice, and, in the absence of notice, judicial proceedings are as to them res inter alios acta and of no binding force. Notice is an essential element of "due process of law," without which no man in this country can be deprived of "life, liberty or property." The timber culture act provides, that in case of the death of the entryman, the "heirs or legal representatives" may make proof that the entryman or they, the heirs or legal representatives, have complied with the requirements of the law, and that on making such proof, they (the heirs or legal representatives) shall receive patent for the land. Section two, act of June 14, 1878 (20 Stat., 113).

As this statute (under the familiar rule of construction, "expressio unius, exclusio alterius") limits the right to carry out the requirements of the law and perfect the entry on the death of the entryman before final certificate, to his heirs or legal representatives, and authorizes the issuance of patent to them alone, and as section four of said act provides, "That no land acquired under the provisions of this act shall, in any event, become liable to the satisfaction of any debt or debts contracted prior to the issuing of the final certificate," it follows, that the "heirs or legal representatives" are, in such cases, the only parties in interest and they alone are entitled to notice of contest.

The inquiry in this case, then, is limited to the question, is the appellant, as sole devisee and legatee of the entryman, his "heir or legal representative" within the meaning of these words as employed in the statute?

By the will in this case, the father, the heir at law, is displaced and the appellant is substituted in his stead. In the civil law, the party so substituted is called the "heir testamentary, to distinguish him from the legal heir, who is called to the succession by the law." (Bouvier's Law Dic.) At common law, however, he is called, where land is disposed of, a devisee, and in case of a bequest of personalty a legatee, and is not embraced within the common law meaning of the word “heir.” In acts of Congress, unless the contrary expressly appears, words are used in their common-law signification.

Not being an "heir" then, within the meaning of the statute, is he a "legal representative?" I am of the opinion that he is. In the first place, the term "legal representatives" as used in the acts of Congress is not confined to administrators and executors. In the third section of the act of June 2, 1858 (11 Stat., 294), it is provided, that certain private land claims, shall be confirmed and a certificate of location issue "to the claimant or his legal representatives," and it is held by this Department, that under said act the "legal representative" of the claimant is he, "who, under the local law, is the owner of the claim," and that a purchaser at a succession sale of the estate of the claimant or confirmee was such "legal representative" (John Shafer, 5 L. D., 283); and the supreme court of the United States has held, in a case where Congress, by special act, passed after the death of the original claimant, directed a patent to issue on a Spanish claim to such original claimant, or his legal representatives, that such patent inures to the benefit of the claimant's grantee as his legal representative. Morrison v. Jackson (92 U. S., 654; 6 Stat., 854). In the case of Daniel Clark (1 C. L. L., 494), this Department held in cases where patents for private land claims were authorized to be issued to the confirmee or his "legal representatives" that "this formula embraces representatives by contract as well as by operation of law, and that patents so issued would inure to the benefit of heirs, devisees or assignees." (See also Hogan v. Page, 2 Wall., 605.)

In the next place, this view derives support from the provision of the timber-culture act, that in such cases the heirs or legal representatives shall receive patent.

The only cases where the statute uses the words, "administrator" and "executor," and expressly clothes them as such with any power or authority in reference to the unconsummated claim of a deceased claimant, are that of a pre-emptor dying before "filing in due time all the papers essential to the establishment" of his claim, and that of a homestead entry, where both parents are dead leaving an infant child or children; and in both of these cases, it is expressly provided, that the title by patent shall be made and enure to others than the administrator or executor. (Secs. 2269 and 2292, R. S.,). The vesting of the legal title to realty in an administrator or executor would seem to be an anomaly in the law and without any sound basis in reason. At common law, an administrator takes no interest in the real estate of the deceased; nor does an executor unless by force of the provisions of the will. Lands not being liable at common law for the payment of debts, they are made liable by statute if there be a deficiency of personal estate, and where so made liable, the authority of the administrator or executor derived from the statute is a "naked authority to sell on license," and they are not thereby vested with the title. Williams on Executors (Vol. 1, p. 717, note d,). But section four (above quoted) of the timber-culture act expressly exempts the land from liability for