Affirmation of Removal of Martha Hodges from Pension Rolls, September 18, 1897

JMC.

H L B
E M N
W I P

DEPARTMENT OF THE INTERIOR,

WASHINGTON, Sep. 18 1897 [date stamped]

Claim of
Martha Hodges,
widow of Harrison Hodges,
Co. A, 11 U.S.C. Infty.
Certificate No. 110,132.

Docket No. 34,489.
On appeal.
Action affirmed.

Widow's claim for restoration under the general law.

This widow's pension was terminated in April 1886, under the provisions of the Act of August 7, 1882.

The evidence shows conclusively that appellant has been guilty of open and notorious adulterous cohabitation since the passage of the act of August 7, 1882.

The Commissioner of Pensions.

Sir:

Appellant was a pensioner under the general law as the widow of Harrison Hodges, late of Co. A, 11th United States Colored Infantry, and her name was dropped from the roll of pensioners in April 1886, under the provisions of the act of August 7, 1882 on account of open and notorious adulterous cohabitation.

A claim for restoration was rejected in November 1893, "on the ground that claimant has been guilty of open and "notorious adulterous cohabitation since the passage of the "act of August 7, 1882 evidenced by the birth of a child."

In the appeal filed June 12, 1897, from the rejection of the claim for restoration, claimant contends that said action is based upon an error of law, and of justice. That her pension which was granted under the provision of the act of July 14, 1862, and amendments thereto was a vested right, and the only forfeiture of her pension must be based upon the fact of her remarriage, and as she has not remarried since the death of her husband, Harrison Hodges, she has not forfeited her right to pension. Furthermore, the act of August 7, 1882, became a law many years after she became a pensioner, and cannot affect her rights acquired under a former statute.

The fallacy of the latter contention is apparent upon an examination of the language of the statute.

The second section of the act of August 7, 1882, under which the adverse action was taken, provides as follows:

"The open and notorious adulterous cohabitation of a widow who is a pensioner shall operate to terminate her pension from the commencement of such cohabitation."

This widow was a pensioner at the date of the passage of said act, therefore she belonged to a class to whom the act especially referred, and if since it became a law, she has been guilty of open and notorious adulterous cohabitation, there can be no question that such conduct will affect her right to pension.

Prior to the late war this soldier and claimant were slaves in the State of Mississippi. At the date of his enlistment they were cohabiting as man and wife. The soldier died of disease while in the service, under circumstances which were regarded as a sufficient basis for her pensionable right. She was pensioned as his widow in March 1868, while a resident of Tennessee. Her name was dropped from the roll of pensioners in March 1874, on evidence obtained upon special investigation showing that she had cohabited after the death of her husband, the soldier, with one Andrew McClenin as his wife from two to four years and until his death in August 1872.

In a claim for restoration she admitted to cohabitation with McClenin, but denied her remarriage to him. In the adjudication of her claim it was also shown that she cohabited for several years prior to January 1874, with on Frank Abbott as his wife, but there was no positive proof of ceremonial remarriage in compliance with the local law to either of these parties, or to any others.

Upon a personal review of the case in September 1875, the then Commissioner of Pensions, Honorable H. M. Atkinson, held that in the absence of any evidence of remarriage under the Statutory provisions of the State of Tennessee, it must be maintained that the suspension of payment of her pension was improper.

The widow's pension was accordingly restored to her and was continued until April 23, 1886, when it was terminated as already stated under the provisions of the act of August 7, 1882. This action was not based upon the fact of a remarriage, but because appellant had been guilty of open and notorious adulterous cohabitation since the passage of the act.

The facts were developed by a special examination in 1886, and in 1893. Claimant's statements from first to last have been so conflicting in details that the special examiner in 1893, reported her unreliable. This may be due in part to ignorance or lack of memory, but it is noted that she flatly denied many statements made to former special examiners, whenever it would favorably affect her claim.

To the Special Agent in 1874, she admitted that she lived for several years with Andrew McClenin as his wife after her husband's death, and that they had one child who was still living, but that she never married him, for the reason she knew she would love her pension if she did. This is also shown by the parents of Andrew McClenin, and numerous acquaintances, all testifying that she was then known and recognized as his wife.

To the special examiner in 1886, she made a general denial, stating she had never cohabited with any man since her husband's death, although she admitted she had given birth to three children since that time.

To the special examiner in 1893, while still denying that she ever lived with McClenin as his wife she admitted she had lived with Wade Darby, and lastly with William Harris, and had a child by each. That she had three children, all born after the death of her husband, the oldest now living being fourteen years of age, the youngest being nine years of age. Other witnesses also testified in December 1893, that claimant had two children then living, that their ages were from twelve to fourteen, and from six to eight years respectively, and also that claimant had informed them that Ward Darby was the father of one of these children, and that William Harris was the father of the other.

A careful examination of the evidence leaves no doubt that claimant cohabited with at least one of these parties since the passage of the act of August 7, 1882, and that her youngest child now living was born of such illicit intercourse. This is substantially admitted by the claimant, and is also shown by other competent witnesses.

Under the specific language of the law it must therefore be held that she forfeited her right to pension. Rejection of her claim for restoration was proper, and is hereby affirmed.

Very respectfully,

Webster Davis
Assistant Secretary.