ANDREW J. MURDY, Company "B"
National Archives Pension File
Transcribed by Jon White.
National Archives Pension File
Transcribed by Jon White.
Affidavit to Origin of Disability
To be executed by an officer or comrade of the soldierís company and regiment having personal knowledge of the circumstances under which the disability was incurred on account of which pension is claimed.
Before filling in this affidavit the witness should read carefully the marginal instructions and conform thereto in every particular as far as his knowledge of the facts will allow. Comradeís evidence will not be accepted if an officerís can be had.
This affidavit should be returned to Charles & George A. King, Box 500, Washington, D.C., not sworn to until they have had an opportunity to examine it, to see if the statements therein are material.
State of Iowa
County of Mahaska
In the matter of Pension Claim of A J Murdy, Co. B, 1st Regít, W Vir Vols Calvary personally appeared before me, a justice of the peace in and for the aforesaid County and State, Jerry Riggs, of Leighton, County of Mahaska, State of Iowa, who I hereby certify is a respectable and credible person, and who, being duly sworn, declares in relation to the aforesaid claim that his age is 39 years, and he is the identical person who served as Corporal, in Co. B, 1st Regít W Vir Vols, Calvary and knew the above-named soldier, who was a member of said company and regiment; that on or about the 23d day of September, 1864, while in the line of duty at or near Mount Jackson, State of Virginia, said soldier was disabled by a wound caused by a shell bursting and a piece striking said A.J. Murdy in the back. Being struck in the back by a piece of shell thrown by a battery in the rear of the skirmish line when said AJ Murdy was on duty with his company.
Deponent further declares that he is not interested in said claim, nor concerned in its prosecution; that his knowledge of the foregoing facts was derived from My own personal knowledge. I was engaged in same company and was with him at the time
Signature of Affiant
Form 3-180 (note - typed document)
Department of the Interior
Bureau of Pensions
Washington, D.C. July 16th, 1903
Orig. No. 570,103
Sarah L. Murdy, widow of
Andrew J. Murdy, Co. B, 1st W. Va. Cav.
Legality of marriage Iowa and South Dakota
Chief of the Board of Review.
Herewith are returned the papers in the above entitled claim with opinion as follows:
This claimant, Sarah L. Murdy, on February 11, 1893, filed a claim (No. 570,103) for pension under the Act of June 27, 1890, as widow of Andrew J. Murdy who was a member of Co. B, 1st W. Va. Cav., from February 19, 1864, to July 8, 1865, and who died October 28, 1892, while residing at Springs, Potter County, South Dakota.
The claimant was married to the soldier June 16, 1872, in Appanoose County, State of Iowa, in accordance with legal forms, and it is abundantly established that these parties lived and cohabited together as husband and wife bona fide from the date of their ceremonial marriage, three children having been the issue of their union, for a period of twenty years until they were separated by the death of the soldier which occurred at Springs, potter County, south Dakota on October 28, 1892 as heretofore stated.
The claimant had been once and the soldier twice previously married. The first wife of soldier, one Christy McCosh, died in 1852, and his second, one Eliza Clendening, April 17, 1874. Claimant was first married in Appanoosa County, Iowa, October 2, 1856, to one Dias Shelton. She alleges that her first husband, about the commencement of the war, went to California, and she was subsequently advised of his death, and it appears that after the lapse of three years, acting upon the assumption of his death, she entered into a second marriage with the soldier with whom she continued to live until his death.
The case has been specially examined, and apparently the best obtainable evidence adduced bearing upon the question of the death of Dias Shelton, the first husband of the claimant, is as follows:
Sarah L. Murdy, the claimant, deposed before the special examiner, among other things, in May, 1902, as follows:
My maiden name was Sarah L. Jennings. I was born in Roanoke County, Virginia. I married Dyas Shelton October 2, 1856, in Appanoose County, Iowa. About the commencement of the war my husband went to California. He got into trouble out there and was sent to the penitentiary for horse stealing in Nevada. I got up a petition and he was pardoned after serving two years. He had been sent up for ten years. I have a letter from him dated August 20, 1865. After he was pardoned he did not come back home but went back to California. He had a brother, James Shelton, who died out there and he was with him. I got several letters from him after he got out of prison. He was a Southern sympathizer and went to California originally to avoid army service. He had another brother, Dick Shelton, who lives in Iowa, and Dick heard occasionally from Jim. Jim wrote that my husband had been at his house and had started a blacksmith shop but left and told him to sell out his tools and send the money to me. Finally a letter came from Jim saying my husband shot himself. I have always understood that it was in California but dick Shelton says it was written from Jacksonville, Oregon. I donít know the location of the place in California and it may have been near the Oregon line and it is possible that he got his mail at Jacksonville. All that Jim wrote was that Dyas had shot himself. He did not say when or how it happened. The supposition was that he had committed suicide. It was some two or three years after I got that word that I married. After he did not come home and I did not get any assistance from him, I instituted suit for divorce. Judge McAfee of Bloomfield, Iowa, for whom I was working, told me he would get it for me, but when we got word he was dead I dropped the suit as I did not think further action on my part was necessary.
Richard Shelton of Moulton, Appanoose County, Iowa, deposed before the special examiner, among other things, in September, 1902, as follows:
I first knew this claimant when I came to this place sometime after the Civil War. She had been married to my brother, Dias Shelton, and was living here but he had gone to California. He had gone to California after the war commenced and my brother set him up in the blacksmith business at a town near his farm. I donít know as it was in town but it was near my Brother Jamesí farm. The neighbors sent James word that he had better come and get the tools for Dias was gone. Sometime after that James Shelton was taking a paper from Oregon and it said in the paper ďa man by name of Dias Shelton had shot himself at Jacksonville, Oregon.Ē This is what James Shelton wrote to me and he didnít state whether the shot killed him or not. I wrote back to James for particulars and he wrote back that all he knew about it was what he saw in the paper. James did not say whether he understood from the article in the paper whether he (James) presumed Dias to be dead. He said the paper just said Dias Shelton shot himself. I was then living in Bradyville, Adams County, Ohio, and for several years after the close of the Civil War. I never corresponded with Dias after he left my place at Bradyville, Ohio, when he was a little boy. My brother James did not send me the paper containing an account of the shooting of Dias Shelton, and all I know about it is what I have stated. James Shelton has been dead two or three years. Dias Shelton was never married before he came to Iowa. Claimant was never married but the twice to my knowledge. I do not think any of the relatives of Dias Shelton ever went to investigate or to learn the extent of the injury by shooting or whether he was dead. I have not heard of him since James Shelton wrote me that he saw in the paper Dais Shelton had shot himself. I did not keep a correspondence with James Shelton. We hardly ever wrote. I donít think I ever had a letter from James after what I have stated and while I was living in Ohio. I never wrote to this claimant about Dias Shelton being shot nor dead. I donít know how she learned of it. I then had a brother and two sisters living here and I told them after I came here. I donít remember ever having written about it to them. I donít know whether I knew of it at the time that Dias was in the penitentiary but have heard of it since. I never saw the newspaper and know nothing of it only what is herein stated.
Sarah Hurd of Bloomfield, Iowa, deposed among other things before the special examiner in September, 1902, as follows:
I am a sister of this claimantís first husband, Dias Shelton. When Dias came to Iowa I was in Kansas. I was not here when he was married to this claimant. The first time I knew this claimant she was married to my brother, Dias, and they were living in Orleans near here. My husband and I went to Kansas and when we came back Dias was gone to California. He never wrote to me and I never wrote to him but he wrote to his wife, this claimant. I never saw any of the letters that he wrote to claimant. I heard her say Dias wrote to her. I do not know why Dias went to California unless to make money. I never understood that claimant and Dias had any trouble before he went away to California. We heard he shot Ďhisselfí and then I heard he wasnít dead and was living with another woman in California. I heard from claimant that Dias shot himself. She said that Richard Shelton got a letter saying Dias shot himself but I donít know who she said wrote or sent the letter. Richard said he couldnít recollect getting any such letter. Yes, he told some that. I think it was before claimant married Andrew J. Murdy that she told me Dias shot himself. Yes, it was several years before. No, she was not supposed to be a widow when I returned here from Kansas. Richard Shelton came here from Ohio sometime after the war. I think he was living here when the report came that Dias was shot. Yes, I was living here when the report came that Dias was shot. Claimant then told me of Dias being shot but Richard Shelton never told me so. Then again I heard he was not dead. I can not say from whom nor how I heard this. I can not say how I heard he was living with some other woman. I guess it was all one report but I can not say how it came. I think I talked this with the claimant before she married Murdy. Claimant always said that Dias would come back if he were alive. I donít think claimant ever heard from Dias after the report came that he was shot and none of his people ever did that I know of. He never wrote to any of his people only his wife after he went to California that I ever knew of. I can not say what was the foundation for the report that Dias was living with another woman. That was the talk around and that is all I know. I do not of any reason why Dias Shelton should go away and not return nor any reason why he should not correspond and live with his wife. No, I have no recollection of ever hearing Richard Shelton say that he had received a letter from James Shelton in which it was stated that Dias had shot himself. I think Richard Shelton lived here when I heard the report that Dias shot himself. The claimant told me she saw the letter Richard received saying Dias was shot. I never saw the letter myself and donít know of anybody but claimant who claimed to have seen it. I understood from claimant that he was killed. I donít think claimant ever got a divorce from Dias Shelton.
Mary S. Elledge of Moulton, Appanoose County, Iowa, deposed before the special examiner among other things in September, 1902, as follows:
I am a sister of Sarah L. Murdy. Claimant first married Dias Shelton in this county when she was about nineteen years old. He went to California I think in 1861. It was during the war. He was a blacksmith and went there to get better wages. He had a brother, Jim Shelton, in California. He wrote to his wife, this claimant, until awhile before we heard he was shot. She heard pretty regularly from him until we heard he was shot and then claimant remained a widow nine years, thinking the report might not be true, before she married. She never heard from him after we heard he was shot. I can not tell the year claimant heard Dias was shot. She got word that he was shot by a letter Jim Shelton sent to his brother, Dick Shelton, and the letter was sent to claimant to read and I saw the letter myself and read it. Dick Shelton lived here in this county and claimant and I lived in the little town of Orleans in this county. The letter was brought to claimant by some person to read but who brought the letter I donít know. All I van remember about the letter is that Jim Shelton said he heard Dias was shot, but how or when or where he didnít say. I donít remember whether Jim said in the letter how he obtained the news, but they must have been a good ways apart or Jim would have known the particulars. Claimant took it very hard when she heard Dias was shot. No, the letter did not say Dias was killed, just said he was shot and did not say who shot him nor in what part of his person he was shot. We supposed by not writing more they must have been a good ways apart. Yes, claimant waited nine years after hearing Dias Shelton was shot before she married Andrew J. Murdy. Yes, I saw the letter myself that Jim Shelton wrote to Dick Shelton about Dias being shot. I do not remember that the letter said anything about Jim Shelton seeing a newspaper account of the shooting. I do not remember that the letter said in what state Dias was when he was shot. I only remember that he said Dias was shot. I know we wondered why Dias was shot and we supposed he had gotten into some trouble the same as he had before and was shot, and we supposed by his not coming back that he was shot and killed. Claimant did not get a divorce from Dias Shelton. She was going to get a divorce and when the news came that he was shot she did not apply for it.
Jane Davis of Moulton, Appanoose County, Iowa, deposed before the special examiner among other things in September, 1902, as follows:
I became acquainted with this claimant when she was a child and we all came here from Virginia together sometime in the fifties. Her maiden name was Jennings. She married Dias Shelton. I knew Dias Shelton before they were married. He was a young man. I do not remember the circumstances of Dias Shelton going away only that he went the same as others going to the new country. I know claimant took it very hard when he went away. While I can not say, I think claimant received letter from Dias while he was away for she came and would tell us what he was doing. I think it was just before or during the war that he went away. Several years afterward a letter came saying that Dias Shelton was dead and claimant came to my house and read the letter and broke down reading it. I did not read the letter myself. I have most forgotten just how the letter commenced but it was from Jim Shelton to Richard Shelton, and in a very few words said Dias Shelton was dead. It appears to me the letter said he was shot. I canít remember whether the letter said he shot himself or whether he was shot by some one else. I am quite certain the letter said Dias Shelton was dead and then went on to say the cause was he was shot. I feel sure Dias Shelton has never been heard from since the report came that he was shot.
Mrs. J.H. Mitchell, of San Francisco, California, deposed before the special examiner in April, 1903, as follows:
I am the daughter of James Shelton, deceased, who was a brother of Dias Shelton. I never saw Dias Shelton and he has never been in California as long back as I can remember but I know there was such a man because I heard my father speak of him. I heard my mother say that she did not know anything about Dias and I know positively that none of the relatives in California know any thing about whether Dias Shelton is alive or dead. I am thirty-eight and I have never known Dias to be in California. I have a brother John, and a sister, Mrs. Simpson Finnell, in this state but they donít know any more about it than I do because all they would know would be from mamma and I know she does not know any thing about Dias being alive or dead nor about his marital relations. I never heard of this claimant. I never heard that my Uncle Dias had been killed by Indians, and so far as my father taking any Oregon papers I never knew my father to take any such papers, and I never heard that my father had set my Uncle Dias up in business. I never heard that my Uncle Dias was living with another woman in California and I am sure if such had been the case I would have heard of it. I am quite sure that my father did not know what had become of Dias Shelton. That is my impression gained from my fatherís conversations before he died.
The efforts of the special examiners to get a trace of the whereabouts of Dias Shelton, the first husband of this claimant have been utterly unavailing; hence, the question is here presented for determination as to whether or not this claimant has established that she is the legal widow of the soldier.
This question will be determined under the laws of the State of Iowa, the state in which the claimant was married to the soldier, conformably with the provisions of Section 2 of the Act of August 7, 1882, which recites:
Marriages shall be proven in pension cases to be legal marriages according to the laws of the place where the parties resided at the time of marriage, or at the time when the right to pension accrued.
In the case of Tinsdale vs. Connecticut Mutual Life Insurance Company (26 Iowa, 170), decided by the Supreme Court of Iowa in 1868, the facts were as follows: In 1868 it was attempted to establish the death of Edgar Tinsdale, husband of plaintiff, who visited Chicago September 25, 1866, on business, was last seen by an acquaintance on the corner of Lake and Clark Streets of that city, and no trace of him ever afterwards discovered. The court said:
The death of an absent person may be presumed from less than seven years from date of last intelligence from him, from facts and circumstances other than those showing exposure to danger which probably resulted in his death. Held: That the death of Tinsdale will be presumed.
In the case of Blanchard vs. Lambert (43 Iowa, 230) the court in its decision said:
The plaintiff did not marry Blanchard until march, 1867, nearly nine years after her separation from Musgrave. For several years prior to this time Musgrave was living with a woman who claimed to be, whom he claimed to be, and who was reputed to be his wife. The law presumes that this cohabitation of Musgrave was lawful and not criminal and that he had obtained a divorce from the plaintiff. In the case of The King vs. Inhabitants of Twining (2 B.E. Ald. 387) it was held that the law presumes against the commission of a crime and that a woman who marries within twelve months after her husband left the country would be presumed to be innocent of bigamy, the presumption of innocence preponderating over that of the life of the husband. In Yates vs. Houston (3 Texas, 433) it was held that the ordinary presumption in favor of the continuance of human life should not outweigh the presumption in favor of the innocence of the cohabitation of the party. In Lockhart vs. white (18 Texas, 102) the same doctrine was announced. These decisions are in entire harmony with the spirit and policy of the law and they fully sustain the action of the court below.
In the case of Sophia Strunk vs. Jesse B. Button and Elias D. Strunk, Ctf. No. 983,377, involving a division of pension under the Act of March 3, 1899, the Department, in its decision in said case promulgated on June 30, 1903, held as follows:
It is a rule of evidence recognized and enforced by the state and federal courts generally, that a party attacking a duly established marriage on the ground that one of the parties to such marriage was incompetent to contract the marriage by reason of a prior substituting marriage, must not only prove a valid prior marriage, but also that it has not been dissolved at the time of the second marriage, even though it involves the proving of a negative; that every presumption is in favor of the validity of the established marriage; and these presumptions must be overcome by satisfactory, irrefragable proof, the burden of proof being upon the party attacking the marriage.
Mr. Bishop, in his work on Marriage and Divorce, paragraph 47, said:
Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the forms of proofs, the law raises a strong presumption of its legality, not only casting the burden of proof on the party objecting, but requiring him throughout, in every particular, to make plain against the constant pressure of this presumption the truth of the law and fact that it is illegal and void.
The Department has had many cases involving the issue of marriage and the presumption of its legality when shown. See cases of Jennette Burton (9 P.D., 31); Louisa Germain (11 P.D., 66); Mary Coburn (11 P.D., 43); Minerva Brown (11 P.D., 266); Esther A. Palmer (11 P.D., 520).
It is the law, nowhere denied, that when a person proves a marriage in accordance with legal forms, that in the absence of facts and circumstances pointing to its invalidity, it is protected by the presumption that it is legal and a valid contract in all respects.
The claimant in this case has proved that she was married to the soldier in the State of Iowa in 1872 in legal form and lived with him from the date of said marriage until his death in 1892. The evidence as to fact of alleged death of Dias Shelton, the first husband of claimant, is somewhat conflicting and unsatisfactory, but it is sufficient, it is believed, to show that the report of his having been shot was authentic and that no intelligence has been received of his existence since the time of said report. The relations existing between claimant and her first husband appear to have been in all respects affectionate and agreeable up to the time of his going to California. It is clearly shown that the claimant entered into her second marriage with soldier in entire good faith in the belief that her first husband was dead and that the cohabitation of these parties was at all times honestly matrimonial, and continued bona fide for twenty years, and the validity of their marriage or relationship does not appear to have been at any time questioned. In the light of all the facts disclosed by the evidence now on file, it is believed that the absence of claimantís first husband unheard of by her for approximately about three years before her inter-marriage with the soldier, and the alleged report of the shooting, are circumstances from which his death may be inferred, hence, I am of the opinion, inasmuch as the presumption of innocence and morality under the circumstances in this case outweighs the presumption of the continuance of life of said first husband, that the conclusion is safely warrantable that the claimantís marriage to the soldier was legal, and that the children born of said marriage are legitimate, and it is accordingly, therefore, held that she may be regarded as having status as the widow of the soldier.
S A Cuddy
Chief of Law Division
Bureau of Pensions Form 3-363
Act of June 27, 1890
ORIGINAL PENSION OF MINOR HELPLESS CHILDREN
Soldier, Andrew J. Murdy
Regiment, 1Ē West Virginia Cav.
Children, Lowa Murdy
Guardian, claims as Sarah L M Shelton
State, South Dakota
Rate, $ 12 per month, commencing June 8, 1916, and $2 a month additional for each child, as follows:
Lowa Murdy - Born May 23, 1878 - Commencing June 8, 1916
To continue during period of helplessness
Submitted for ad July 10, 1916, AJ Gilchrist, Examiner
Approved for Admission to continue pension on account of helpless child Lowa Murdy. Subject to approval of Medical Referee. Pay duly appointed guardian.
July 12, 1916
N.W. Case, Legal Reviewer
Enlistment, February 19,1864
Discharge, July 8, 1865
Other Service, None
Death, October 28, 1892
Minorsí claim filed, June 8, 1916
Former marriage of soldier, yes
Death or divorce of former wife, 1Ē 1852
2Ē April 17, 1871
Last Marriage of soldier, June 16, 1872
Death or remarriage of widow, April 24, 1916
Former marriage of last wife, yes
Former husband died 1868
Invalid claim filed, June 26, 1880 (86?)
Invalid paid to date of death
Widowís claim filed, February 19, 1893
Widow paid to April 4, 1916
Claimant does ---- write.