Cresoe v. Laidley

2 Binn. 279 | Pa. | 1810

Tilghman C. J.

delivered the court’s opinion.

The court are to give their opinion on a case stated, the material parts of which may be comprised in a small compass.

Samuel Eldridge died intestate, seised of lands in fee-simple, which had come to him by descent from his father. He' left, living at the time of his death, a mother, a brother of the half blood on the part of his mother, a maternal grandfather and grandmother, a paternal great aunt (the plaintiff), and several cousins, children of paternal great uncles and great aunts. The plaintiff claims one fifth part of Samuel Eldridge’s lands, as one of his next of kin. The defendant holds under the heir at common law. The question is, whether this case is included in either of the acts directing the descent of real estates of persons dying intestate.

On the part of the plaintiff it has been contended, that this case is included, not within the words, but the spirit and intent of the 12th section of the act of the 19th April 1794. That section is in these words: “ The real and personal “ estate of any person dying intestate, in case such person “ leave neither widow nor lineal descendant, nor father, or “ mother, or brother or sister of the whole or half blood, or “ lawful issue of any brother or sister of the whole or half “ blood, shall descend to and be divided among the next of “ kin of equal degree,” &c. The case before the court differs from this section of the law in two respects. The intestate left a mother and a brother of the half blood. The plaintiff’s counsel get over this, by endeavouring to prove from other parts of the law, that neither the mother nor brother of the half blood on the part of the mother, can take any thing in this case, where the estate descended to the intestate from his father. This being the case, they think it unreasonable that their existence should prevent the next of kin from taking. They construe the words “ mother or brother of the “ half blood,” by adding to them the words “ capable of “ taking any thing under this act.” We think that the principles on which the law must be construed, were fixed by the case of Johnson v. Haines, 4 Dall. 64, decided by the unanimous opinion of the High Court of Errors and Appeals. The rule there laid down by Chief Justice M'-Kean, who delivered the opinion of the court, was that the heir at common law should take, except in the specific cases enumerated in the act. The case there decided was full as hard as the present. There could not be a doubt but the legislature would have included it in the act of 19th April 1794, if it had occurred to them. But the decision was founded on wise principles. It tended to produce certainty, which is of the utmost consequence in the law of descents. We may easily, know the law, when it is established that the heir at law takes in every case not specified in the acts of assembly; but ther^ will be no end to difficulties, if we attempt to supply the omissions of the acts, by inserting what we may suppose to have been intended by the legislature. There is another powerful reason for the strict construction of the act of 19th April 1794. It was discovered to be defective in many respects, to'remedy which, the act of 4th April 1797 was passed. That act included the case which had occurred in Johnson v. Haines, and many other omitted cases; but it made no alteration in the 12th section of the first act, on which the present question turns. Now the latter act being made for the express purpose of suppljdng the defects of the first, it must be supposed that the first act was examined with great attention, and every alteration introduced, which was thought necessary. I make no doubt but many cases are still unprovided for, because they were unseen. As they occur from time to time, they may be included in new laws, if it shall be judged expedient. In the mean time the heir at common law will take in all such cases. Upon the whole, we are clearly of opinion, that the plaintiff is not entitled to recover, because she has not brought her case within either of the acts of assembly.

Judgment for the defendant.