the debts of the entryman in a case like the present and the will gives the executor no interest in the realty or personalty of the testator. To direct the title by patent to issue to an administrator or executor under such circumstances, would be the requirement of an act, wholly useless and contrary to all the analogies of the law in similar cases. This Congress can not be held to have intended.

Personal service of notice upon the father, William L. Dickerson, the executor nominated in the will and who (as before stated) but for the will would have inherited the property of the entryman as his heir, was not sufficient. Having been displaced as heir by the will, he was no longer the heir of the entryman within the meaning and spirit of the statute.

As before stated, it does not appear that he ever qualified and became executor in fact, but if he had done so, and if as executor he was in one sense of the term a legal representative, he was not the only legal rep resentative. The appellant was the sole party in interest under the will, and, in my opinion, was a legal representative within the meaning of the law. Notice to one of several legal representatives or parties in interest, can not be held to conclude the rights of those not legally notified. The necessity and justice of this position is illustrated in this case, where the party notified had no interest involved in the contest and failed to appear at the hearing in person or by attorney. Denny v. Taylor's heirs (2 L. D., 227).

The will of the entryman gives the post-office address of the appel lant, and was probated and recorded in the county in which the land covered by the entry was located; the notice was published in the same county, and the father of the entryman and of appellant resided in said county and near the land. It would appear, then, to have been an easy matter for the contestant to have ascertained the name and address of the legal representative of the entryman. This, however, was not done, and the published notice is to "the heirs and legal representatives of J. Frank Dickerson," without naming them, and a copy of the notice was not mailed by registered letter to the last known address of the appellant as required by Rule of Practice 14. In cases of contest after the death of the entryman, due diligence should be exercised to ascertain the names and last known addresses of the heirs or legal rep resentatives of the deceased entryman, and where their names and such addresses can be ascertained, the notice should be to them by name, and is not complete without mailing the notice as required by Rule 14 of Practice. Whenever possible, the notice must be personally served.

The decision of your office, holding the entry for cancellation, is reversed, and you are instructed to direct the local officers to allow the contestant, within thirty days after notification hereof, to proceed with his contest after due notice to the appellant in conformity to law.

PRATT v. AVERY ET AL.

Motion for the review of departmental decision rendered December 19, 1888 (7 L. D., 554) denied by Secretary Noble, May 4, 1889.

SECOND HOMESTEAD ENTRY-ACT OF MARCH 2, 1889.

GEORGE W. MASON.

The privilege of making application for a second homestead entry under the act of March 2, 1889, may be accorded as a preference right in a case pending at the passage of said act.

First Assistant Secretary Chandler to Commissioner Stockslager, May 4, 1889.

I have considered the appeal of George W. Mason, from the decision of your office dated June 14, 1886, rejecting his application to make a second homestead entry for the S. SE., and S. SW. 1, Sec. 25, T.

5 N., R. 72 W., Denver land district, Colorado.

Your office letter of June 14, 1886, fairly sets forth the facts in the case and your said decision was in accord with the law and rulings of this department at the time the same was rendered. The case now, however, seems to come within the provisions of the act of Congress approved March 2, 1889, entitled "An act to withdraw certain public lands from private entry and for other purposes," and due opportunity should be given the claimant for an application thereunder. To this end he should be notified that if within sixty days after notice hereof he shall make such application in accordance with said act, and the regulations thereunder, it will receive due consideration, and that in the meantime final action herein will remain suspended, but that if he fails to make such application within the time specified, his claim will be finally rejected.

Your decision is accordingly modified.

MINING CLAIM-PUBLICATION-POSTING-EQUITABLE ADJUDICATION.

MIMBRES MINING COMPANY.

If the published notice of application is not as explicit in the matter of description as the notice posted on the claim, such defect is properly chargeable to the register, and may be cured by a reference to the Board of Equitable Adjudication. It is the duty of the register to furnish proof of posting in the local office, and in the absence of such proof the applicant may be permitted to furnish satisfactory evidence as to the fact of posting.

Secretary Noble to Commissioner Stockslager, May 4, 1889.

I have considered the appeal of the Mimbres Mining Company from the decision of your office, dated May 26, 1888, declining to modify your

office decision, dated September 17, 1886, refusing to re-instate mineral entries, Nos. 63, 64 and 66, La Messila, New Mexico, series, made September 27, 1882, by the Mimbres Mining Company, for the Glamorgan and Lucas lode claims and the McNulty lode and Mill-site claims, or to allow said company to make new entries of said claims upon the record as presented.

The record shows that said claims were surveyed in June, July and October, 1881, and the decision appealed from finds from the field notes that they lie in Tp. 17 S., R. 11 W., surveyed prior to the survey of said claims; that the claims were not connected with any established corner of the public surveys, or with any United States mineral monument, as required by the regulations of this Department, but they were connected by broken lines about nineteen hundred feet in length, with "Willow Spring," alleged to be the most accessible natural object with which to connect them; that, on June 8, 1882, applications for patents for said claim were filed and publication of notices given from June 17, 1882, to and including August 5th, same year, and entries were allowed on September 27, 1882; that your office, on February 12, 1883, advised the local officers that the published notice was defective, in that there were but eight publications of the notice, whereas the "law and official regulations positively require ten."

On June 21, 1883, your office advised the local officers that, as there had been no appeal from said decision of February 12, 1883, said entries were canceled; that

As to the notices required by the statute, applicant will be required to publish anew its notices of intention to apply for patent in the newspaper nearest the claims for sixty days, and also to post notices on the different claims and in the local office for the same period. Proof of such publication and posting must be made in accordance with the provisions of circular of this office of October 31, 1881.

On December 12, 1885, your office acknowledged the receipt from the local office of certain papers, including

the articles and certificate, designating the company's place of business and agent in the Territory, copy of notice of location, and an abstract of title, agreement with the publisher, affidavit of the publisher, affidavit that plats and notices were posted and remained posted, affidavits of $500 improvements, and a certificate that no suit is pending.

Your office also advised the local officers, that, by your office decision of June 21, 1883, the applicant was allowed to commence proceedings anew for patents, and upon showing due compliance with law and the regulations of the Department, if they should allow the applicant to make final entry of said claims, the entire record should then be transmitted to your office. Said papers were accordingly returned, for the action of the local office.

On August 20, 1886, the local office transmitted the record, as directed by your office on the second of the same month.

!

On September 17, 1886, your office considered the record, and, after reciting the facts substantially as aforesaid, found that new notices were published in all of said cases from June 6th to and including August 22, 1885, and that copies of the plats and notices remained posted on the claims for the same time; that there was no evidence that tended to show that copies of said notices were posted in the local land office, covering the second period of publication; that said notices correctly described the exterior boundaries of said claims, and referred to the adjoining mining claims, but in none of the notices was any refer ence to any line connecting them with a corner of the public surveys, a mineral monument, or with a permanent object, that "the locus of said claims could not from the descriptions in the published notices be ascer tained at the time by parties who might have desired to protect interests of their own by filing adverse claims."

Your office, therefore, declined to re-instate said canceled entries, and refused to direct the local officers to allow new entries upon the record as then presented. Thereupon, said company appealed, and alleged error, (1) in holding that said claims were not properly connected as required by law, (2) in holding that new entries must be made upon second payments for said claims, (3) in holding that omission of proof of posting of notice in the local land office was fatal, when such proof might still be supplied, and (4) error in holding that "Willow Spring," with which the surveys were connected, was not a permanent natural object, satisfying the law in that regard.

The main objection, as stated in your office decision, is, that the published notice is not sufficiently full and definite to enable adverse claimants to be advised of their location. But it is to be observed, that by section 2325 of the U. S. Revised Statutes, "The register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period."

On October 29, 1881, your office issued a general circular, approved by Secretary Kirkwood, on October 31, same year, containing a compilation of the mining laws and the regulations thereunder, and paragraph 28 thereof requires that an applicant for a lode claim must, in the first place, have a correct survey of his claim duly made, which shall accurately show the exterior surface boundaries of the claim, distinctly marked by monuments on the ground. Paragraph 29 of said regulation requires the claimant

To post a copy of the plat of such survey in a conspicuous place upon the claim, together with notice of his intention to apply for a patent therefor, which notice will give the date of posting, the name of the claimant, the name of the claim, mine, or lode; the mining district and county, whether the location is of record, and, if so,

where the record may be found, the number of feet claimed along the vein and the presumed direction thereof; the number of feet claimed on the lode in each direction from the point of discovery, or other well defined place on the claim; the name or names of adjoining claimants on the same or other lodes; or, if none adjoin, the names of the nearest claims, etc.

Paragraph 30 provides, for the proof of posting of plat and notice, and by the 34th paragraph of the regulations provision is made, that the register shall duly publish the notice and post a copy of the same in his office.

In the case at bar, if the published notices were not as full as those posted on the claims, it was the fault of the register, whose duty it was to publish the same. Besides, when your office first examined the papers, no question was made to the sufficiency of the description in the published notice, the only objection was to the length of time that it was published. Moreover, upon the information of the local officers that it would be only necessary to supply a sound link in lieu of a broken one, the applicant made new publication for the full time required, and, although more than six years have elapsed since the local officers accepted the proof and received payment for said entries, yet, so far as the record shows, there has been no protest or adverse claim filed, and the good faith of the applicant is unquestioned.

In the case of John W. Bailey et al. and Grand View Mining & Smelting Company (3 L. D., 386), my predecessor, Secretary Teller, held that, "although under the law and office regulations, notice should be posted on the mill-site, as well as upon the lode portion of the claim, in this case, in view of the improvements erected, and that no adverse right has intervened, and the fact that the failure to post was through oversight, the said requirement is waived."

This ruling was modified by the Department in the case of the New York Lode & Mill-Site claim (5 L. D., 513), and the entry in that case was allowed to be submitted to the Board of Equitable Adjudication for its consideration, the notice not having been posted on the mill-site portion of the claim, and there being no adverse claim. See also Newport Lode (6 L. D., 546); Buena Vista Lode (idem., 646); Cornell Lode (idem., 717); Veta Grande Lode (idem., 719); Rowena Lode (7 L. D., 477).

It is the duty of the register to furnish proof of the posting of the notices in his office, and the applicant should be allowed to procure satisfactory evidence of such posting, and, upon furnishing the same, within sixty days from notice hereof, said entries will be re-instated and referred to the Board of Equitable Adjudication for its action.

The decision of your office is modified accordingly.