the settled rule in the construction of powers, does not hesi tate to characterize it "as a very strict and harsh" one. 4 Kent, 345.

The principal authority cited by the defendants upon this point is Adams v. Law, 17 How. 417. In this case the question arose upon the construction of marriage articles to secure a jointure to the intended wife. The articles provided that in case of the death of the husband before the wife, she should have the use of certain real property during her life; but in case of her death before his, "leaving issue of the said marriage one or more children then living," upon the death of the husband the property was to go "to the child or children of said marriage" in fee-simple. The daughter and only child of this marriage intermarried with Lloyd N. Rogers, and died before her mother, leaving two children, who, upon the death of their grandparents,—the grandmother dying first,-claimed to be entitled to take under the articles as the representatives of their deceased mother.

The court below allowed the claim, but the supreme court held otherwise, saying: "The word 'issue' is a general term, which, if not qualified or explained, may be construed to include grandchildren as well as children. But the legal construction of the word 'children' accords with the popular signification, namely, as designating the immediate offspring;" but admitted that in the case of wills, where such appeared to have been the intention of the testator, grandchildren had been allowed to take under a devise "to my sur viving children."

But the court was evidently influenced by the consideration that the principal object of the articles was to make a provision for the intended wife, and not the issue of the marriage, and also that the children to whom the estate was limited, upon the double contingency of the wife dying before the husband and their surviving them both, were "children then living;" that is, at the death of the mother and the father.

But in Walton v. Cotton, 19 How. 355, the court held that the word "children," in the act of congress of June 2, 1832,

and the several acts supplemental thereto, granting arrearages of pensions to certain officers of the revolution, and, in case of the death of any such officer before the date of the act, then to his widow, if there was one living, and, if not, to his children, included the grandchildren of a deceased pensioner, whether their parents died before or after the death of such pensioner, and that they were entitled to take their share of such pension as the representatives of their deceased parent.

In the course of the opinion of the court, Mr. Justice McLean says: "Should the word children,' as used in these statutes, be more restricted than when used in a will? In the construction of wills, unless there is something to control a different meaning, the word 'children' is often held to mean grandclildren. There is no argument that can be drawn from human sympathy to exclude grandchildren from the bounty, whether we look to the donors or the chief recipient. Congress, from high motives of policy, by granting pensions, alleviate, as far as they may, a class of men who suffered in the military service by the hardships they endured and the dangers they encountered. But to withhold any arrearage of this bounty from his grandchildren, who had the misfortune to be left orphans, and give it to his living children on his decease, would not seem to be a fit discrimination of national gratitude. Congress has not named grandchildren in the acts, but they are included in the equity of the statutes. And the argument that the pension is a gratuity, and was intended to be personal, will apply as well to grandchildren as to children. On a deliberate consideration of the above statutes we have come to the conclusion that the word children,' in the acts, embraces the grandchildren of the deceased pensioner, whether their parents died before or after his decease. And we think they are entitled, per stirpes, to a distributive share of the deceased parent."

*

This case is decidedly in point. The analogy between it and the case at bar is complete and instructive. The grant proffered by the donation act-particularly the fourth section

thereof-was a bounty to the parents in consideration of the timely and important services rendered by them in the occupation and settlement of the country; and in case of the death of either of them without having received a patent for the donation, the "benign policy" of the act was to secure this bounty, first to the immediate family of the deceasedhis widow and "children;" and for lack of the latter, to her and his “heirs" generally. The children of the deceased child of Charles Cutting are certainly within the equity of the statute--more so, even, than were the grandchildren of the deceased pensioner; and there is nothing in the circum stances of the case or the reason of the provision which should exclude them, as the representatives of their parent, from participating in the bounty of the government. Owing to his comparative age and ability the deceased child may have largely shared with his father the journeyings, hardships, and labor which were involved in obtaining this donation, and in this respect may have been the most deserving of the family.

This is a beneficial statute--a measure of general utility and justice-particularly the clause under consideration, which provides for the disposition of the donation in case the settler dies before he has obtained a patent, and should therefore have a liberal and benign interpretation. Smith's Com. § 480. Such has been the spirit in which the act has been construed by the courts. Indeed, in Silver v. Ladd, 7 Wall. 224, the supreme court held that a single woman was included in the description of persons capable of receiving a donation under the fourth section. In delivering the opinion of the court, Mr. Justice Miller characterizes the act as "one of the most benevolent statutes of the government;" and, particularly in speaking of the construction of this fourth section, says: "Anything, therefore, which savors of narrowness or illiberality in defining the class, among those residing in the territory in those early days, and partaking of the hardships which the act was intended to reward, who shall be entitled to its benefits, is at variance with the manifest purpose of congress."

And according to a celebrated collector of the curious and interesting events 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 grandchildren proving victorious, "it was established by a perpetual decree that they should thenceforth share in the inheritance, together with their uncles." 1 D'Israeli's Curiosities of Literature, 233.

It appears, then, that both upon reason and authority, ancient and modern, that the word "children," as used in the clause under consideration, was intended by congress to include all 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 plaintiff, 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 sister, it appears that the plaintiff is so entitled without reference to the question whether he and she would be included in a grant to the "children" of Charles Cutting, deceased. Tne patent grants the premises to the "heirs at law" of Charles Cutting, and ignores the right of the survivor (Abigail Cutting) altogether. In this respect it may be considered void upon its face, as it discloses the fact that there was a survivor to whom the act gave an equal part in the premises with an heir. Davenport v. Lamb, 13 Wall. 428; Lamb 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 Red. 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 department before it was issued. If the evidence showed that the deceased settler left no children, then the patent should have been issued to his heirs, but not otherwise. The patent having been issued to the heirs, the presumption is that there

were no children. And although it appears from the agreed case that such is not the fact, yet this cannot affect the patent, 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. Who would be enti

tled to claim as heir of the deceased would in all 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, his 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 plaintiff 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-fifth 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