Page:Federal Reporter, 1st Series, Volume 6.djvu/279

 CUTTINa V. CUTTING. 267 �And according to a celebrated collector of the curious and interesting eventa and customs of past ages, this question was the subject of a judicial combat in the tenth century, when, the champion in behalf Of the rights of the grandchil- dren proving victorious, "it was established by a perpetuai decree that thej' should thenceforth share in the inheritance, together with their uucles." 1 D'Israeli's Curiosities of Lit- erature, 233. �It appears, then, that both upon reason and authority, an- cient and modern, that the word "children," as used in the clause under consideration, was intended by congress to in- clude ail the children of the deceased settler — the living ones actually and per capita, and the deceased ones by their legal representives and per stirpes. This being so, the plaintifif, as the representative of A. J. Cutting, a child of the deceased settler, and the grantee of his sister, Emma Cutting, is entitled to an undivided one-fifth of the north half of the donation. But, upon the face of the patent and the conveyance from his sis- ter, it appears that the plaintiff is so entitled without refer- ence to the question whether he and she would be included in a grant to the "children" of Charles Cutting, deceased. The patent grants the premises to the "heirs at law" of Charles Cutting, and ignores the right of the survivor (Abigail Cut- ting) altogether. In this respect it may be considered void upon its face, as it discloses the fact that there was a sur- vivor to whom the act gave an equal part in the premises with an heir. Davenport v. Lamb, 13 Wall. 428; Lanib v. Starr, 1 Deady, 358. �The heirs, whoever they may be, can only take in default of children. The act substitutes them for children in case there are none of the latter. Lamb v. Starr, supra; 1 Eed. on Wills, 486-7. �But whether the patent should issue to the children or heirs involved a question of fact to be determined by the land depart- raent before it was issued. If the evidence showed that the deceased settler left no children, then the ^citent should have been issued to his heirs, but not otherwise. The patent having been issued to the heirs, the presumption is that there ��� �