APRIL 29, 1924, 3 COMP. GEN. 810

APRIL 29, 1924, 3 COMP. GEN. 810

REFUND OF EXCESS PUBLIC-LAND PAYMENTS - LIMITATION ON APPLICATIONS THE TWO-YEAR LIMIT FIXED BY THE ACT OF DECEMBER 11, 1919, 41 STAT., 366, WITHIN WHICH TO FILE APPLICATIONS FOR REFUND OF EXCESS PAYMENTS IN CONNECTION WITH PUBLIC-LAND ENTRIES IS APPLICABLE TO THE SEVERAL HEIRS OR DISTRIBUTEES OF A DECEASED ENTRYMAN INDIVIDUALLY, AND THE FILING OF AN APPLICATION BY ONE HEIR OR DISTRIBUTEE WITHIN THE TIME LIMIT DOES NOT STOP THE RUNNING OF THE STATUTE AS TO THE OTHER HEIRS OR DISTRIBUTEES, UNLESS ACCOMPANIED BY A PROPERLY EXECUTED POWER OF ATTORNEY FROM THEM.

DECISION

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, APRIL 29, 1924:

I HAVE YOUR REQUEST OF MARCH 22, 1924, FOR REVIEW OF SETTLEMENT 013238 OF FEBRUARY 6, 1924, ALLOWING THE CLAIM OF GRANT E. HUNT FOR $21.43 AS HIS SHARE AS HEIR OF DR. F. HUNT IN $150 EXCESS PAYMENT IN CONNECTION WITH PREEMPTION ENTRY 012547, SPOKANE SERIES. THE SETTLEMENT ALSO DENIED THE CLAIM OF FIVE OF THE OTHER HEIRS FOR THE REASON THAT THEIR APPLICATIONS WERE NOT FILED WITHIN TWO YEARS AFTER THE ACT OF DECEMBER 11, 1919, 41 STAT., 366. THE PREEMPTION ENTRY INVOLVED COVERED THE N. 1/2 SE. 1/4 SE. 1/4 OF SE. 1/4 SECTION 22, TOWNSHIP 17 N., RANGE 44 E., WILLAMETTE MERIDIAN, AND WAS PAID FOR AT $2.50 PER ACRE WHICH WAS THE LEGAL RATE FOR LANDS WITHIN THE LIMITS IN THE NORTHERN PACIFIC RAILROAD CO. GRANT. UNDER DECISION IN THE CASE THOMAS DORMAN, 47 L.D., 628, THE SECRETARY OF THE INTERIOR HELD THAT THE GRANT EMBRACING LANDS WITHIN THESE LIMITS WAS FORFEITED FOR FAILURE TO CONSTRUCT THE ROAD AND THAT THOSE WHO HAD PAID MORE THAN $1.25 PER ACRE WERE ENTITLED TO A REFUND OF THE EXCESS.

THE ACT OF DECEMBER 11, 1919, 41 STAT., 366, REQUIRED ALL APPLICATIONS FOR REFUND OF EXCESS PURCHASE MONEYS PAID IN CONNECTION WITH PUBLIC LAND ENTRIES TO BE FILED WITHIN TWO YEARS AFTER THE DATE OF PATENTING OR REJECTION OF SUCH ENTRIES OR WITHIN TWO YEARS AFTER THE DATE OF THE ACT. THE APPLICATION OF GRANT E. HUNT WAS FILED NOVEMBER 28, 1921, AND PURSUANT TO HIS APPLICATION HE WAS ALLOWED $21.43 AS ABOVE STATED. ON VARIOUS DATES WITHIN THE PERIOD FROM OCTOBER 5 TO 30, 1922, FIVE OTHER HEIRS FILED APPLICATIONS FOR THEIR RESPECTIVE SHARES OF THE EXCESS PURCHASE MONEY. THESE APPLICATIONS WERE NOT FILED WITHIN TWO YEARS AFTER THE DATE OF THE ACT OF DECEMBER 11, 1919, SUPRA.

IN YOUR DECISION OF JULY 24, 1923, IN THIS CASE, IT IS STATED THAT AFFIDAVITS WERE FILED IN SUPPORT OF THE APPEALS OF THE FIVE HEIRS STATING THAT THE FIRST APPLICATION FILED BY GRANT E. HUNT WAS MADE FOR ALL OF THE HEIRS AND AT THEIR REQUEST AND THAT THE FILING OF AN APPLICATION BY ONE HEIR FOR ALL THE HEIRS STOPPED THE RUNNING OF THE STATUTORY LIMITATION. SUCH AN AFFIDAVIT IS NOT FOUND WITH THE RECORD, BUT, EVEN HAD IT BEEN FURNISHED, IT WOULD APPEAR TO HAVE VERY LITTLE EVIDENTIARY VALUE, BEING A SELF-SERVING DECLARATION AND EXECUTED SOME TIME AFTER THE OCCURRENCE. FURTHERMORE, NO EVIDENCE ALIUNDE COULD BE CONSIDERED SUFFICIENT TO OVERCOME THE AVERMENT OF GRANT E. HUNT IN HIS APPLICATION THAT HE IS "ONE OF THE HEIRS" AND "AS SUCH HEIR" MAKES HIS CLAIM. HIS APPLICATION CONTAINS NO STATEMENT WHICH COULD BE CONSTRUED TO INDICATE ANY INTENTION THAT IT WAS FILED ON BEHALF OF ALL OF THE HEIRS AND IT COULD NOT BE SO REGARDED UNLESS ACCOMPANIED BY A PROPERLY EXECUTED POWER OF ATTORNEY FROM THE SAID HEIRS.

UPON THE EVIDENCE NOW BEFORE ME I AM CONSTRAINED TO HOLD THAT THE APPLICATION OF GRANT E. HUNT WAS NOT FILED IN BEHALF OF ANY OF THE HEIRS OTHER THAN HIMSELF AND THAT THE APPLICATIONS OF THE OTHER HEIRS NOT HAVING BEEN FILED WITHIN THE TIME LIMIT FIXED BY THE ACT OF DECEMBER 11, 1919, PAYMENT TO THEM OF ANY PART OF THE EXCESS IS NOT AUTHORIZED UNDER THE LAW. 2 COMP. GEN., 379.