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pute, to the Cairo & Fulton Railroad Company, "subject to all the conditions, limitations, and restrictions contained in the act of congress aforesaid, and in the act of congress entitled 'An act for the relief of settlers on lands reserved for railroad purposes,' approved March 27, 1854." The act by which this transfer was made contained the following provision: "That citizens or heads of families, being settlers or occupants previous to the passage of this act on the land herein transferred to the said Cairo & Fulton Railroad Company, shall each be entitled to a preference right of entry of any legal subdivision of land not exceeding one hundred and sixty acres, which shall be upon such legal subdivision as will include the residence of the said settler, which preference right shall be at the price of two dollars and fifty cents per acre, which preference right of entry shall exist from the passage of this act, and for three months after notice has been given for three successive weeks in a newspaper published in the city of Little Rock, that the said land is in market." Laws Ark. 1854-55, p. 150, § 1. This provision of the act of 1855 was repealed on the twenty-sixth of November, 1856, and the following enacted in its place:

"Sec. 2. Every person who, on the ninth of February, 1853, occupied, by residence and cultivation thereon, any tract of land comprised in the grant made by virtue of, and under the provisions of, such act of congress of February 9, 1853, may purchase from said Fulton & Cairo Railroad Company, at two dollars and fifty cents per acre, the legal subdivision of such land as shall include his residence and actual improvements, not to exceed one quarter section, by complying with the following conditions:

"Sec. 3. Such claimant shall, within three months after said lands are selected and confirmed to said company, and a list or plat thereof filed in the recorder's office in the county in which such lands may lie, file with the auditor of state his own affidavit, accompanied by the affidavits of two disinterested freeholders of his county, describing the land claimed by legal subdivisions, proving the fact of such occupancy, residence, and cultivation upon such legal subdivisions with a view to actual cultivation and settlement, before the day above specified, said company may, by giving reasonable notice to such claimant, appear before the auditor and controvert the facts set forth in such affidavits, and the auditor may swear witnesses, hear proof, and, for cause shown, set aside any such claims: provided, that no such claim shall be set aside for misdescription, or error in form only, founded on mistake; but on affidavit showing such mistake, reasonable time may be given for the filing of corrected proof.

"Sec. 4. Said claimants shall, after three months, or as soon thereafter as said company shall be in a condition to make title, pay to said company the consideration for said land as hereinbefore provided, whereupon he shall be entitled to receive from said company a deed for the same, but in case of failure to file said proof, or pay said consideration money within the respective time specified, the right to make such purchase shall cease.' Laws Ark. 1856, p. 4, §§ 2, 3, 4.

""

On the first of February, 1859, another act was passed on the same subject, which contained this provision:

"Sec. 3. Be it further enacted, that every person who, on the first day of November, 1858, resided on or cultivated any improvement on any of the land comprised in the grant made by virtue of the act of congress approved February 9, 1853, may purchase from the said Cairo & Fulton Railroad Company, at two dollars and fifty cents per acre, one hundred and sixty acres, which may include the actual residence or the farm of such person, as he or she chooses to elect, by complying with the conditions prescribed by an act passed by the last general assembly of this state, entitled 'An act to amend an act to aid in the construction of the Cairo & Fulton Railroad,' approved January 16, 1855, which act was approved November 26, 1856; and provided, further, that, until such default *mentioned in said act, the owners of such

'mprovements shall be entitled to use and occupy the same free of rent or charges." Laws Ark. 1858-59, p. 62, c. 61, § 3.

And, finally, on the twenty-eighth of March, 1871, the following was enacted:

"Section 1. That where any settler, who, on or before the eighth day of March, 1870, was residing and made improvements on the lands belonging or claimed by the Cairo & Fulton Railroad Company, or its branches, shall have the right to purchase the same, not to exceed one hundred and sixty acres, under the legal subdivision of said lands, and including the homestead and improvements of such settler, at not exceeding the rate of two dollars and fifty cents ($2.50) per acre, in preference to any and all other persous, from and after the passage of this act, and for three (3) months after said land has been advertised according to law.

"Sec. 2. That any person authorized to purchase land under the provisions of section one of this act, tender to the authorized agent of said Cairo & Fulton Railroad Company, at the principal office of said company, or at the principal office of the branches of said Cairo & Fulton Railroad Company, and to the authorized agent thereof, the amount of the purchase money of said land, and demand a title therefor, or his preference right thereto shall be barred." Laws Ark. 1871, p. 289, c. 59.

On the thirteenth of July, 1857, the commissioner of the general land-office certified these lands with others to the Cairo & Fulton Railroad Company under its grant, and on the eighteenth of February, 1858, the company filed in the recorder's office of Lafayette county, which then embraced the lands in dispute, a list of all lands in that county "selected and confirmed to that company." On the fifteenth of April, 1874, the land commissioner of the railroad company published in the Arkansas Daily Gazette a notice that the lands of the company between Little Rock and the Texas line would be sold at the, office of the company on and after June 16, 1874, reserving, however, mineral lands and lands through which the road ran. The road went through*the N. E. of this section. The Gazette was a newspaper published at Little Rock, and designated by the governor of the state for the publication of official notices, and the advertisement was continued from the fifteenth of April to the fifteenth of June, 1874. The notice also called on all actual settlers who had not made application to purchase to do so before the day of sale. On the twenty-eighth of July, 1874, John B. Nix went to the land commissioner of the company and claimed the right to purchase the N. E. 4 of the section at $2.50 an acre. He, at the same time, tendered $400 in payment of the purchase money, and demanded a conveyance. The commissioner would not admit his right to buy, and refused his tender. On the fourteenth of May, 1875, the company sold and conveyed the lands in dispute, being the 120 acres, to Thomas Allen, the appellee, and on the twenty-third of the same month he began a suit against Nix to recover possession. On the nineteenth of June, 1878, while this suit was pending, John B. Nix made application to the land-officers of the United States, as heir at law of Sarah Nix, to purchase the whole N. E. 4 under the pre-emption claim of his mother. At the same time he deposited with the register of the land office $300 "to pay out his mother's pre-emption." This application was refused.

Upon these facts the court below dismissed the bill, and this appeal was taken from a decree to that effect.

The claim of the appellant is (1) that he has a complete equitable title to the lands under the acts of congress as a pre-emptor; and (2) that if this fails, the laws of the state gave him the right to purchase in preference to all others, and that he fully complied with all the requirements of those laws to complete and perfect his right of purchase before Allen, the appellee, got title. These will be considered in their order.

1. All the rights of pre-emption which the appellant sets up originated with

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his mother. In his application to enter the lands, made in 1878, he expressly bases his claim on her original settlement, and his inheritance from her. He does not pretend that he made a settlement himself before the rights of the railroad company accrued. In fact, he could not have made such a settlement, because he remained a minor until 1857, and the lands were withdrawn from market in 1853, on account of the railroad grant. Only persons over the age of 21 years could become pre-emption settlers. Such is the express provision of the pre-emption act. If, then, his mother, had she been alive, could not have made a pre-emption entry in 1878, he could not. The settlement and claim of Mrs. Nix were made under the act of September 4, 1841, c. 16, (5 St. 453,) and in that statute it was expressly provided (section 10) that "no person shall be entitled to more than one pre-emptive right by virtue of this act." When, therefore, Mrs. Nix, on the thirty-first of March, 1854, made her pre-emption entry of the N. E. of the quarter section on which she settled, and as to which she filed her declaratory statement in 1853, she, in law, abandoned her settlement on the other three-quarters of the quarter section for the purpose of pre-emption, and surrendered all the preemption rights she ever had in them. This is clearly shown by the provision in section 13, "that before any person claiming the benefit of this act shall be allowed to enter such lands," he shall make oath "that he has never had the benefit of any right of pre-emption under this act." The right of preemption is the right to enter lands at the minimum price in preference to any other person, if all the requirements of the law are complied with. The prior settlement, declaratory statement, and proof are not the pre-emption, but only the means of securing the right of pre-emption. By entering the 40 acres in 1854, Mrs. Nix exhausted the one right of that kind which the law secured to her, and she could not claim another. She could have entered the whole 160 acres at the time if she wished to, and had the money, but such an entry would have required $200, and she had but 50. The 50 would pay for 40 acres, and so she bought that and gave up the rest. The law made no provision for entering a part of the quarter section at one time and saving the right to enter the remainder at another. The averment in the bill, therefore, that the payment of the $50 at the time of the entry of the 40 acres was "intended as a part payment of the whole," cannot be true. The law permitted nothing of the kind. The evident purpose of the act of March 27, 1854, was to aid pre-emptors. It gave the designated settlers the right of pre-emption; that is to say, a preferred right to buy the lands on which they had settled under the pre-emption laws at the ordinary minimum price. If a settler had once had the benefit of those laws, this statute gave him no new rights. He could not be a pre-emptor, because he could not take the necessary oath. Consequently, when Mrs. Nix, on the thirty-first of March, four days after the act of March 27th was approved, made her pre-emption entry of the 40 acres, she exhausted all her rights under the act of 1854, as well as those under the act of 1841. It follows that the appellant has no right under the various acts of congress which are relied on.

2. The Arkansas act of 1855, giving settlers and occupants a preference right of purchasing the lands thereby granted to the railroad company at $2.50 an acre, was repealed by the act of November 26, 1856, before either the appellant or his mother attempted to avail themselves of its provisions. The act of 1856 required claimants to file with the auditor of state certain affidavits within three months after the lands were selected and confirmed to the company, and a list and plat thereof filed in the recorder's office of the county in which the lands were situate. The list and plat of these lands were filed in the proper recorder's office on the thirteenth of July, 1857. No affidavits, such as the act required, were ever filed by the appellant or his mother in the office of the auditor of state, and, for this reason, in accordance with the express provisions of section 4, "the right to make such purchase" ceased as

long ago as the year 1857. The act of 1859 did not inure to the benefit of the appellant or his mother for the same reason. The privileges of that act could only be secured "by complying with the conditions prescribed" in the act of 1856. This reduces the claims of the appellant to such as he has under the act of 1871. That act grants the privilege of a preference purchaser only to a "settler who, on or before the eighth of March, 1870, was residing and made improvement on the lands belonging to or claimed by the * * * rail-* road company," which he desired to buy. This appellant, on the eighth of March, 1870, resided on the N. E. & of the quarter section. That land the company neither owned nor claimed. It was entered and paid for by Mrs. Nix in 1854, and she deeded it to the appellant in 1858. His title to that part of the quarter section is not disputed, and his residence has always been there. He cultivated parts of the other quarters of the quarter on the eighth of March, 1870, but he did not reside upon them or either of them. Under the circumstances, his residence was, in law, confined to the land he owned. Seeing this difficulty, he applied for the purchase of the whole quarter section, basing his claim apparently on the original settlement and declaratory statement of his mother for the pre-emption of that tract. In this way he sought to connect his residence upon the N. E. with his occupation of the other quarters. That he cannot do, as by the entry of the N. E. his mother separated her residence from the rest of the quarter section, and he has done nothing since to change that condition of things. It follows that the appellant is not entitled to the privileges of the act of 1871, and his claim, both under the acts of congress and those of state, has failed. This makes it unnecessary to consider whether the act of 1871 is constitutional. Good or bad, it is of no use to him. The same is true of the claim that the company has no title because at the time the grant was made the land in question was occupied by Mrs. Nix as a pre-emptor. The appellant can recover only on the strength of his own title. If he has no title, it is a matter of no importance how weak that of his adversary may be. Decree affirmed.

(112 U. S. 83)

WILSON, Adm'r, etc., v. ARRICK, Adm'x, etc.

(October 27, 1884.)

WASTE BY ADMINISTRATOR-RIGHT OF ADMINISTRATOR DE BONIS NON TO RECOVER. The fact that an administratrix has improperly paid out money of the estate, the proceeds of assets administered by her, or that they have been paid to her agent, does not invest the administrator de bonis non with title and enable him to sue there for.

In Error to the Supreme Court of the District of Columbia.

A. S. Worthington, for plaintiff in error. H. E. Davis, for defendant in

error.

WOODS, J. Horatio Ames, whose administrator de bonis non brings this suit, died in January, 1871. On some day not shown by the record, but prior to April, 1873, his widow, Charlotte L. Ames, was appointed administratrix, with the will annexed, of his estate. There was claimed to be due the estate, from the United States, a large sum of money for cannon furnished, which was satisfied by payments made in April, 1871, and in January, 1873. In May, 1873, Mrs. Ames filed her account, in which she charged herself with the sum of $39,955 as received by her from the United States on account of the claim of the estate, and took credit for three payments, amounting to $33,574.36, made to Clifford Arrick, the intestate of the defendant, for which vouchers were filed, signed by him. Exceptions were filed to the account by Oliver Ames, a brother of Horatio Ames. Before the exceptions were heard. the court, on January 9, 1875, removed Mrs. Ames for having failed to com. ply with an order of the court requiring her to give an additional bond, and appointed the present plaintiff, Nathaniel Wilson, administrator de bonis non

in her place. On January 22, 1876, the exceptions were heard, and the credit of $33,574.36, which the administratrix claimed on account of payments made to Arrick, was reduced by the court to the sum of $2,955.56, and the commission she claimed was also reduced. The account, as filed, showed a balance in her hands of $2,260.64; as corrected by the court this balance was increased to $34,876.75. Disregarding this settlement of the account, this suit was brought by Wilson, the administrator de bonis non, against Arrick, to recover the sum of $39,955, the whole amount with which the administratrix had charged herself in her account; the allegation of the declaration being that he had collected that sum for the estate of Horatio Ames, and refused to pay it over. Arrick having died pending this suit, it was revived against the administrator of his estate.

It appears from the bill of exceptions that warrants were issued by the se retary of the navy to the administratrix for the amounts due from the United States to the estate she represented; that on their delivery to her she was required to indorse upon them her receipt for the money, which she did; and. having the warrants in her possession, she indorsed and delivered them to Arrick, who drew the money. The court, at the request of the defendant. charged the jury that "the legal effect of the receipts, given in evidence and signed by Charlotte L. Ames, as administratrix, was to invest her with the control of the moneys mentioned in said receipts; and, if the administratrix parted with said control by the indorsement of said receipts, then the plaintiff is not entitled to recover." And the court, of its own motion, added: "If you find, from the testimony in this case, that Mrs. Ames, administratrix of the estate of Horatio Ames, deceased, received this fund from the government for the purpose of adminstration, and that after receiving it she wasted it upon Arrick, or anybody else, the plaintiff in this case would not be entitled to recover; it would be the case of administration of assets, and it does not survive to the administrator de bonis non to prosecute." This charge of the court is assigned for error. * We think the charge was right. In the case of U. 8. v. Walker, 109 U. S. 258, S. C. 3 SUP. CT. REP. 277, which, as appears by an inspection of the record, was a suit brought by the United States for the use of Nathaniel Wilson, as administrator de bonis non of the estate of Horatio Ames, upon the bond of Charlotte L. Ames, as adminstratrix of the same estate, to recover the identical money sued for in this case, it was held that an administrator de bonis non derives his title from the deceased, and not from the former administrator, and to him is committed only the admintration of goods, chattels, and credits of the deceased which have not been administered; and that, both at common law and under the act of congress in force in the District of Columbia, an administrator de bonis non has title only to the goods and personal property which remain in specie and have not been administered. Upon this ground the judgment of the court was based. The plaintiff in error, conceding that since the decision in U. S. v. Walker, ubi supra, he could not maintain his action against the administratrix or the sureties upon her bond to recover money, the proceeds of administered assets, still insists that the action will lie against an agent of the administratrix, to whom the money has been paid. This contention cannot be sustained. If the money sued for in this case is the proceeds of a debt due the estate of Horatio Ames, which has been administered by Mrs. Ames, the administratrix, the case of U. S. v. Walker must be decisive of this. For if the present plaintiff has no title to the money, his action will no more lie against the agent of the administratrix than against the administratrix herself.

We are of the opinion that the facts stated in the bill of exceptions, as already recited, show that the claims of the estate of Ames against the United States had been administered by Mrs. Ames, the administratrix. The demand of the estate against the United States had been settled and paid, and the liability of the United States discharged. This was an administration of