81 Pa. 400 | Pa. | 1876
delivered the opinion of the court,
This was an action of ejectment for the undivided one-fourth part of a tract of land. Both parties claimed under title derived from Paddy Allen. Prior to the birth of any of his children he devised all his real and personal estate to his wife, Betsey Allen. After the execution of his will, three children were born to him. They survived their father, and the plaintiffs in error acquired title from them. The defendant in error is a son of Betsey by a former marriage, and claims as the heir of his mother.
Sect. 15 of the Act of the 8th of April 1833, declares, “ when any person 'shall make his last will and testament, and afterwards shall marry, or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow or child, or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child, or children, after-born, shall be deemed and construed to die intestate ; and such widow, child or children shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased as if he had actually died without a will.” This section is substantially a re-enactment of the Act of 19th of April 1794.
When Paddy Allen executed his will he had no children. Three were born afterwards. His will made no provision for any of them. He died leaving them. Then, as to them, he died intestate. If he died intestate, these children took all his real estate, subject, only, to his widow’s dower. She had no greater interest in her late husband’s real estate than the intestate laws gave her. She had no estate of inheritance to hold or to transmit to any of her children. The defendant in error could not inherit this land from her, for she never owned it. He could not inherit from Paddy Allen, as he was not of his blood. This is fatal' to the claim of the defendant in error: Walker v. Hall, 10 Casey 483: Edwards’s Appeal, 11 Wright 144; Willard’s Appeal, 18 P. F. Smith 327. It follows that the third and seventh assignments are sustained. It is unnecessary to consider the others.
Judgment reversed.