Opinion by
Jоseph Davis died, intestate and without known heirs, on February 17, 1948, in Donora, Washington County. An administrator was appоinted and when the estate was called for audit William Davis, appellant, appeared and сlaimed the estate as decedent’s half brother and sole heir. After hearing much testimony, the learned court below dismissed his claim and awarded the estate to the Commonwealth under the Intestate Act of April 24, 1947, P.' L. 80.
Little would be gained by an attempt to review in detail the testimony of appellant and his witnesses. *607 Thе lower court found that the evidence offered by appellant was so meagre in detail and so conflicting that the court in good conscience could not sustain the claim of appellant. After carefully studying the record we have reached the same conclusion. Appellant, who livеs in Danville, Virginia, testified that decedent left home around 1912 to come to Pennsylvania and that thereafter he was in contact with appellant only twice, once by letter and once when decеdent visited appellant in Virginia. He could give no accurate history of family births, deaths or related matters. Several of his witnesses testified that they had carried messages between appellant and dеcedent and one witness stated that he had seen them together on several occasions. All of these statements were denied by appellant. In addition to those conflicts in appellant’s own case, the Commonwealth called seven witnesses, several of whom were substantial citizens of Dоnora, who testified that decedent claimed to have been born and raised in North Carolina.
To suрport his case appellant offered in evidence three documents. Two of these were marriage licenses of appellant’s father, the first showing his marriage in 1867 to Martha, whom appellаnt claims was decedent’s mother, and the second in 1876 to Harriet, appellant’s mother. The third documеnt was an employment record of decedent which showed that he v/as born in Danville, Virginia in 1879. If we acсept the accuracy of those documents, it is apparent that decedent could not bе appellant’s half brother since decedent’s purported mother had died or been divorced at least three years prior to his birth. On the other hand, if the records are inaccurate they arе of no evidentiary value in this case and we are then forced to rely solely on the oral testimony. In either event we are faced with numerous discrepancies and shortcomings in the evidence and when they are considered it
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becomes apparent that appellant’s claim was properly dismissed. Tbe burden is always upon a claimant to prove kinship to a decedent by a fair prеponderance of tbe credible evidence and in tbe absence of any legal error the findings of tbe Orphans’ Court in that regard are binding on tbis Court:
Link’s Estate (No. 1),
After tbe bearings bad been completed, appellant filed a petition seeking to have tbe issue here involved determined by a jury. That pеtition was filed in accordance with §21 (a) of tbe Orphans’ Court Act of June 7, 1917, P. L. 363. That Act gives tbe Orphans’ Court tbe рower at its discretion to grant or refuse such a petition and appellant can point to nоthing which shows an abuse of that discretion. Had tbe request been made earlier in tbe proceedings the lower court might well have granted it but after having beard all of tbe evidence and being convinced that appellant bad completely failed to show bis relationship to decedent, tbe court usеd sound discretion in refusing to consume more time by granting tbe petition.
Tbe learned court below in its decree awarded tbe estate to tbe Commonwealth “not as escheat property but under provisions of §12 of tbe Intestate Act of 1947, P. L. 80.” However, §12 is merely a procedural section and cannot be tbе basis for an award. It is §3(6) of that Act which provides that tbe Commonwealth shall take as an heir where there are no first cousins or other closer relatives. In such cases §12 provides that tbe administrator shall liquidate tbe estate and pay tbe funds into tbe State Treasury. Furthermore, tbe court below stated in its opiniоn that it was not dismissing tbe claim of appellant but was merely bolding that be bad failed at tbis time to producе sufficient evidence to prove bis relationship. To *609 effectuate that result it would be necessary to make the award to the Commonwealth under §1314 of The Fiscal Code of April 9, 1929, P. L. 343. We, therefore, must remаnd this case to the court below so that it may, in its discretion, make the award to the Commonwealth as сustodian under §1314 of The Fiscal Code or as an heir under §3(6) of the Intestate Act. In all other respects, we are in full accord with the action of the court below.
The decree is vacated and the record is remanded to the court below to enter a decree not inconsistent with this opinion.