Moyer v. Thomas , 38 Pa. 426 ( 1861 )

The opinion of the court was delivered,

by Thompson, J.

— The defendant in error was plaintiff below, and claimed to recover a life estate in the premises under the intestate laws. Benjamin Pott and wife, in 1829, granted the estate out of which this controversy has arisen, to Jacob Minnich, in trust for his wife for life, with remainder to their children in fee. -Minnich and wife afterwards, in 1832, conveyed the premises to Joshua Comley, Esq., in trust to convey the same to Mrs. Minnich for life, the remainder as in the first deed. Minnich and wife had four children; two died unmarried and without issue; a third became the wife of Thomas; she died leaving issue, an only daughter, who also died shortly after her mother, unmarried.

The contest here is between the father of this child and the heir of his uncle William Minnich, who was the surviving brother of her mother.

Not being entitled under the circumstances of the case, as tenant by the courtesy to the life estate in the first taker, Mrs. Minnich not having expired during the life of his wife, he now claims a life estate through his deceased child under the 3d section of the Intestate Act.

It is conceded that he is not entitled to an estate of inheritance as heir to his daughter, on account of the exclusion in the 9th section of the Act of 1833, of all “ who are not of the blood of the ancestors or other relation from whom any real estate descended, or by whom it was given or devised to the intestate.” He was not of the blood of the wife, the mother of the child, and did not fall within the 5th section of the act, which provides, that in default of issue, and brothers and sisters of the whole blood and their descendants, the whole estate vests in the father and mother, if both be living, or in the survivor in case of the death of either.

It was contended, that when an intestate leaves brothers and sisters, then the parents take a life estate in the realty; but when, as in the present case, the child left neither brother nor sister or descendants of such, the father could have taken an estate of inheritance had the child acquired by purchase and not by descent, and this not being the case, he is not entitled to any estate whatever.

This we think is not the true exposition to be given to the law. The 3d section of the Act of 1833 provides, that “in default of issue and subject also, as aforesaid, to the estate and interest hereinbefore given to the widow or surviving husband, if any, the real estate shall go to the father and mother of such intestate during their joint lives and the life of the survivors of them.” If one parent be alive at the death of the intestate, the estate goes to that one for life, in the same manner as if both were alive. The personal estate vests absolutely in the parents or survivor.

There is no exclusion in this section on account of blood, when the succession is to a life estate as there was in the Act of 1794, §§ 5-7, 3 S. L. 146. Without attending closely to the wording of the two acts, those of 1794 and 1833,1 think Mr. Justice Bell was led into an error in Lewis v. Gorman, 5 Barr 164, in saying, that the “meaning of both acts was the same.” It seems to be clear that the scope was greater in the former than in the latter in the particular suggested.

I understand the law now to be, that there is no exclusion where the interest is a life estate: Section 3, Act of 1833. That the parents take for life, before brothers and sisters, nephews and nieces, and their descendants, without regard to the question of blood. So does the survivor of them. This was what was held in this court in Maffit v. Clark, 6 W. & S. 258.

In the 5th section of the act, there is a provision for an estate of inheritance in the real estate of a deceased child in the parents or survivor of them. The qualification or limitation of that is to be found in the 9th section of the act already quoted. It excludes only in cases where, by the act, the inheritance is to pass; those in that case who are not of the blood of the ancestor or other relative from whom the real estate descended are not to succeed, “ but such real estate, subject to such life estate as may be in existence by this act, shall pass and vest in such other persons as would be entitled by this act, if the persons not of the blood of such ancestor or other relative had never existed or were dead at the decease of the intestate.”

The exclusion is from inheritance only, saving the life estates in existence. That gives to Septimus Thomas a life estate in the fee descended to his daughter from her mother. And there was no error in the court below so ruling.

Judgment affirmed.