these life tenants may have children is conclusive and absolute and cannot be rebutted by evidence.
We have two kinds of Law. One we know as statute law. This is an ipse dixit. Ita lex scripta est. This adage is not statute law. The other comes to us in the deliverances of our courts. This latter has been highly praised as deserving of the ecomium that it is "the perfection of reason." This means that it is the product of logical reasoning. The logic, it is true, is an artificial system of logic, such as we know as the logic of the law, but it is none the less logic. That the burden of proof in any fact inquiry should be regulated is reasonable. That this regulation should take the form of a presumption of fact which is prima facie evidence of the fact is likewise reasonable. That such presumption should be conclusive, absolute, and irrefutable, binding us to accept as a fact what we are convinced is not a fact, is not "the perfection of reason" unless there is a policy or other reason of the law for so holding.
Without prolonging the discussion, we state the conclusion reached, which is that the presumption voiced in the referred to adage is not conclusive but may be overcome and made to conform to the real fact, by evidence.
We make the finding that none of these life tenants will at their deaths leave children to survive them.
It only remains to inquire whether this conclusion and finding is in accord with the adjudged cases. One with which it is on all fours is City Bank Farmers' Trust Co. v. U.S. (D.C.) 5 F.Supp. 871, affirmed by the Circuit Court of Appeals, 74 F.2d 692.
The case of the Pennsylvania Company v. Brown (D.C.) 6 F.Supp. 582, ruled by Judge Kirkpatrick, affirmed in (C.C.A.) 70 F.2d 269, is not in conflict with the ruling of Judge Hand.
Another case which we think gives it support is U.S. v. Provident Trust Company, 291 U.S. 272, 54 S. Ct. 389, 78 L. Ed. 793.
We say this because we see no difference in principle between the incapacity of a woman to bear children because of a surgical operation and a like incapacity resulting from natural causes.
The case of Humes v. U.S., 276 U.S. 487, 48 S. Ct. 347, 72 L. Ed. 667, is not in conflict with the finding stated.
A formal judgment may be entered in accordance with the views expressed, and formal findings of fact and conclusions of law submitted, to be incorporated herewith.
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