Page:Federal Reporter, 1st Series, Volume 6.djvu/280

 268 fedebaIj bepobteb. �were no children. And although it appears from the agreed case that such is not the fact, yet this cannot affect the pat- ent, which may not be avoided at law for matter dehors the record. Sharp v. Stephens, C. C. D, Or. Aug. 25, 1879, and cases there cited. In this case it was held that a patent could not be contradicted at law by showing that the -wrong person was named therein, as the wife of the settler and grantee of one-half of the donation. �Who are the heirs of Charles Cutting is a matter to be determined solely by the local law — the law of Oregon. As was said by this court in.Lamb v. Starr, supra, "the donation act does not prescribe who shall be considered the heirs of a deceased settler any more than it prescribes who shall be considered the wife of a settler. Both these are left to the local law — the law of Oregon. * » * '^ho would be enti- tled to claim as heir of the deceased would in ail cases depend upon the law of Oregon at the time of the death; but persons claiming as children, are by the donation act preferred to those claiming simply as heirs by the local law. " �By the law of this state, at and before the death of Charles Cutting, bis children, including "the issue of any deceased child, by right of representation" were his heirs. Or. Laws, 547. The patent being to the heirs for the north half of the donation, gives the plaintifif and his sister, as the issue of A. J. Cutting, an equal interest therein with the surviving children of the deceased settler. And the patent having given the premises to the heirs without including the surviv- ing widow, the interest of each heir would be an undivided one-fourth. But, as has been said, this omission of the widow from the grant in this respect is shown upon the face of the patent to be erroneous, and may therefore be disregarded here. The plaintiff is entitled, upon the patent and the agreed case, to recover an undivided one-ufth of the whole premises. �And upon this view of the matter it may have been unnec- essary to pass upon the question whether grandchildren are included in the word "children" or not. But the argument of the case turned mainly upon this point, and counsel for ��� �