| Pa. | Feb 13, 1868
The opinion of the court was delivered, by
We are asked in this case to disaffirm the doctrine of McConkey v. McConkey, 9 Watts 302, and return to that of Ilgenfritz’s Appeal, 5 Id. 25. But we think the question is not now open upon original grounds. The case of Ilgenfritz itself overlooked the decision in Earnest v. Earnest, 5 Rawle 213" court="Pa." date_filed="1835-04-16" href="https://app.midpage.ai/document/earnest-v-earnest-6314582?utm_source=webapp" opinion_id="6314582">5 Rawle 213, and was immediately followed by Levering v. Rittenhouse, 4 Whart. 136-7, reaffirming Earnest v. Earnest. McConkey v. McConkey has therefore the weight of both those cases against Ilgenfritz’s Appeal, and has recently been recognised in Wallace v. Keyser, 1 P. F. Smith 493. We must take it now as settled •beyond recall, until the legislature chooses to alter the rule, that grandchildren whose father died before their grandfather, the intestate, take not paramount to their father, but through him by representation, >such estate only as he would have taken had he survived the intestate. In the distribution of the grandfather’s ■estate the grandchildren, therefore, take subject to the advance
Considerable stress was laid in the .argument upon the decision in Miller’s Appeal, 4 Wright 58, and something upon what was said by myself in Wallace v. Keyser, supra. This is owing to inadvertence to the different grounds upon which debts and advancements stand. A debt is but a set-off in equity against the share of the distributee. It must therefore be one which is subsisting and recoverable at the time of the father’s death, in order to constitute an available defalcation to the son’s distributive share. An advancement is different, and is not affected by lapse of time or limitation. It does not operate by way of set-off or defalcation, but by a legal abstraction of that much from the child’s share in the father’s lifetime; therefore leaving the share that much less at his death. Operating thus by anticipation, it is not controlled by the same defences, such as infancy, limitation, &c., as prevent the recovery of debts. This exhibits the reason of the decision in Miller’s Appeal. The sum in controversy there, to wit, $952.98, was found by the auditor to be not recoverable as a debt, and hence the attempt was made to convert it into an advancement. This led to a discussion of the question of advancement in this court, and the conclusion that this sum was not of that character, and therefore it was held not to be chargeable against the son’s share. But that part of the charge contained in the father’s book, which was made after the son arrived at age, was found by the auditor to be an available debt, and hence it was charged against his share. This distinction also explains the remark made in Wallace v. Keyser, upon the effect of the 16th section of the Intestate Law. In that case the brothers and sisters of two of the sons of the intestate were endeavoring, by a bill in equity, to control the proceeds of a private sale by the sons of their interest in their father’s real estate, on the ground of a debt due by them to their father’s estate. The 16th section, which relates only to advancements and settlements, was held not to apply to such a case, the debt being no advancement, and not even a lien. And I may now add what was omitted to be said in Wallace v. Keyser, the Orphans’ Court has exclusive jurisdiction over the questions of advancement and distribution : Holliday v. Ward, 7 Harris 485; Ashford v. Ewing, 1 Casey 213. The proceeding in Wallace v. Keyser was a bill in equity in the Court of Common Pleas.
The other assignments of error in this case need no special notice., except to say that they appear to be unfounded.
Decree of the Orphans’ Court affirmed, and the costs ordered to be paid by the appellant.