Page:Federal Reporter, 1st Series, Volume 6.djvu/273

 CUTTINa V. CUTTINa. 261 �wards, on May 5, 1875, a patent was issued by the United States for said donation accordingly; that said Charles Cut- ting left surviving him David, Charles, and Adelia, his chil- dren, and also Ira, the plaintiff herein, and Emma, the chil- dren of his son A. J. Cutting, who died in the year 1855; that on April 4, 1869, said Emma was married, and that said Ira has duly acquired whatever interest said Emma had in said donation; that said Trullinger's title to said 116 acres consists in a conveyance to him of the same by the admiuis- trator aforesaid, in pursuance of a sale by him upon the au- thority of an order oi the county court of said county to pay the debts of his intestate, and that the proceedings in which said order and sale were made were due and regular, except that said Emma was not served with any citation or process therein; and that the defendants' interest in the premises is, as alleged in their respective answers, unless the said Ira and Emma are entitled to an undivided one-fifth thereof under the donation act aforesaid and the facts herein stated, "as children or heirs at law of said Charles Cutting, deceased." �The questions of law which arise upon these facts depend principally for their solution upon the proper construction of that portion of section 4 of the donation act which provides (9 St. 497) that in ail cases where the donees thereunder, being married persons, "have complied with the provisions of this act, so as to entitle them to the grant as above provided, whether under the late provisional government of Oregon or sinee, and either shall have died before patent issues, the survivor and children or heirs of the deceased shall be en- titled to the share or interest of the deceased in equal pro- portions, except where the deceased shall otherwise dispose of it by testament duly and properly executed according to the laws of Oregon." �The same section also contains a proviso declaring "void" "ail future contracta * * * for the sale of the land," io which any person "may be entitled under this act, before he or they have received a patent therefor." But this proviso was repealed by section 2 of the act of July 17, 1855, (10 St. 306,) with the f ollowing qualification : "Provided, that no ��� �