Brenneman's Appeal
40 Pa. 115
Pa.
1861
Check Treatment

The opinion of the court was delivered,

by Thompson, J.

What is the rule of distribution in this ease, the claimants being children of deceased uncles and an aunt ? Is it to be per stirpes or per capita ? The answer to these questions is to be found in the true construction-of the Act of 27th April 1855, and that, we think, was very distinctly announced in Lane’s Appeal, 4 Casey 486. It was there held to be per stirpes. It is very evident that the legislature intended by that enactment, for reasons sufficiently good to justify them in altering the existing law, to provide that grandchildren of brothers and sisters, and the children of uncles and aunts, should constitute additional classes of collateral heirs, as contradistinguished from next of kin, and thereafter take as such, when entitled to inherit, and not as next of kin, as was their position, when entitled under the Act of 1883. This is the plain obvious meaning of the act, and we discover no room for the construction contended for, that it was intended by the act to introduce the grandchildren of uncles and aunts, as participants per stirpes, *117■with the children of such uncles and aunts, which the argument assumes would take per capita. This is not the meaning of the act, as Lane’s Appeal proves. The distribution, therefore, made by the auditors among the children of the deceased uncles and aunt per stirpes was right, and the exclusion of second cousins was also right. Whenever they are entitled to inherit, it must be as next of kin, and their distribution is per capita.

Decree of the Orphans’ Court is affirmed at the costs of the appellant.