Hayes's Appeal, 89 Pa. 256

Hayes's Appeal

89 Pa. 256 | Pa. | 1879

Chief Justice Sharswood

delivered the opinion of the court, March 24th 1879.

The Act of April 8th 1833, Pamph. L. 315, after providing in the fourth section for brothers and sisters, and nephews and nieces, declares in the seventh and eighth sections that, “ in default' of all persons hereinbefore described, the real and personal estate of the intestate shall descend and be distributed among the next of kin to *260such intestate, provided that there shall be no representation admitted amongst collaterals after brothers and sisters children.” The effect of these provisions was to exclude the grandchildren of brothers and sisters, wherever there were brothers or sisters living, and' also the children of uncles and aunts, wherever there were uncles or aunts living. It was to remedy this supposed injustice that the Act of April '27th 1855, sect. 2, Pamph. L. 368, was passed. It constituted the grandchildren of brothers and sisters, and the children of uncles and aunts, additional classes of collateral heirs as contradistinguished from next of kin. It would have been very easy if it had been so intended to have framed the act, so that the fourteenth section of the Act of 1833 would have applied, that when they should all be in equal degree they should continue to take as they had done as next of kin per capita; and per stirpes only where there were living nephews or nieces, or uncles or aunts. But the legislature, whether by design or inadvertence, did not do so, but directed, in the plainest and most explicit terms, that “ the real and personal estate shall descend and he distributed among the grandchildren of brothers and sisters, and the children of uncles and aunts, by representation, such descendants taking equally among them such share as their parents would have taken if living.” No one can question that by these words, as to these new classes of collaterals, the rule of representation was established whether they stood in unequal or equal degrees of relationship to the intestate. As to them the rule of the fourteenth section of the Act of 1833 was changed. How then could this court have decided otherwise than it did in Brenneman’s Appeal, 4 Wright 115, unless it had assumed to change the language of the Act of 1855, in order to make the whole system uniform- and harmonious. Is it at all probable that the judges who decided that case without a dissent could have overlooked the fourteenth section of the Act of 1833, as is now supposed ? We think the Act of 1855 was rightly construed in Brenneman’s Appeal, and on the authority of that case affirm the decree of the court below.

Decree affirmed and appeal dismissed at the costs of the appellants.