Krout's Appeal , 60 Pa. 380 ( 1869 )

The opinion of -the court was delivered,

by

Thompson, C. J.

By the Act of Assembly of 4th April 1797, 3 Sm. Laws 299, when nephews and nieces of the intestate became the distributees of the intestate, the rule of distribution was per stirpes ; the children representing their deceased parents who would have been entitled to the succession if living.

By the Act of the 8th April 1833, the provision on this subject is, that “ if an intestate shall leave neither brothers nor sisters of the whole blood, but nephews or nieces living, the children of such deceased brother or sister, the real estate shall descend to, and vest in such nephews and nieces.” By a subsequent provision in the statute, personal estate is to descend and be distributed in like manner. The rule of descent thus provided, it will be observed, is to the whole of a class, be they many or few generally and consequently equally, and not to a stock by representation. The distribution in such a case would necessarily be per capita.

This is undoubtedly the meaning of this provision; the revisers say that they so intended, and that the change of the old rule of distribution, under the Act of 1797, was to conform the rule of distribution to nephews and nieces, to the rule in cases of distribution to grandchildren, when they should be the class of distributees, under the intestate laws, which is per capita. For the views and reasons of the revisers, see 2 Parke & Johns. Dig. 782. This was our view expressed on this point, in Miller’s Appeal, 4 Wright 387.

In the case in hand, the distributees are nephews and nieces, and the children of two deceased nieces. What is to be the rule of distribution in such a case ?

The postulate from which the result must be worked out, is in the portion of the Act of 1833 quoted, where the descent is to nephews and nieces as a class. There the statute as a statute' of distribution stops. Then in process of time came the enlarging statute of distribution of 27th April 1855, Pamph. L. 368, which-provides that when the estate shall descend to, and be distributed among the grandchildren of deceased brothers and sisters, and the children of uncles and aunts, the distributees shall take by representation, “such descendants taking equally among them such share as their parents would have taken if living.” In Brenneman’s Appeal, 4 Wright 117, we decided that the children of deceased uncles and aunts take by representation, per stirpes. The section places grandchildren of deceased brothers and sisters on the same footing, and consequently the same rule applies to them, namely, that when they are distributees they take by representation, or per stirpes; that is to say,' they are to take such share as their parents if living would have taken. The appellant in this case was the nephew of the intestate, and by the rule we have found to exist under the Act of 1833, he, if living, would have been entitled to the one thirty-second part of the estate. There were thirty-two nephews and nieces, and taking per capita, as the statute distributes to that class, the mother of the appellant would have taken if living, a thirty-second part. That, therefore, by the express words of the Act of Í855, descended upon and was distributable to her children, and they would inherit from the decedent, and take per stirpes the share of their deceased parent. This was the result at which the learned judge below arrived, and consequently he was right in overruling the auditor’s views on the point. Lane’s Appeal, 4 Casey 487, is to the same effect, when rightly understood. The provision in an unequal succession, in the 3d Art. of sect. 4 of the Act of 1833, in no way militates against the construction given to the 2d Art. It supports our construction given to the Act of 1855, taken in connection with the 2d Art., and renders the whole uniform and consistent in its application to the classes provided for. Where the intestate leaves brothers and sisters, and the children of deceased brothers or sisters, the latter take by representation the share their parent would have been entitled to if living; and so, as we have shown, the children of a deceased nephew or niece take by representation the share of their parents. Thus the rule is consistent and uniform in cases of unequal distribution occasioned by unequal degrees of consanguinity, and where the distributees belong to different classes, or rather where the classes are intermixed.

The 8th section of the-Act of 1833, providing “that there shall be no representation admitted amongst collaterals after brothers’ and sisters’ children,” has no bearing one way or the other on the case in hand. Its application is to next of kin when they might inherit. Eor these reasons the decree of the Orphans’ Court is affirmed, and the appeal dismissed at the costs of the appellant.