Raymond Moore Remick.

The statutory law of decedents' estates in Pennsylvania, with annotations and forms online

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common law share created by the Intestate Act of June 7, 1917, P. L. 429,
such interest or share will not be 'statutory dower' nor recoverable by her
as 'statutory dower' through partition proceedings. To recover her share
in such aliened lands, whether it be determined to be true common law
dower or the substitute therefor attempted to be created by Section 3 of
the Intestate Act of June 7, 1917, P. L. 429, her remedy will be the same,
to wit, by an appropriate action in the common law courts and not by
partition proceedings in the orphans' court.

"We believe our conclusions will be found to be sound and supported by
the decisions of the courts of Pennsylvania, if references be had to the
cases." Stockdale's Est., 29 Dist. 1013.

305. SURVIVING HUSBAND'S SHARE IN LIEU OF
CURTESY; SHARE IN ESTATE IN REMAIN-
DER.

SECTION 4. The shares of the estate directed by this act to be
allotted to the surviving husband shall be in lieu and full satisfac-
tion of his curtesy at common law. The surviving husband shall
be entitled to the same share in an estate in remainder vested in
interest in the wife during her lifetime as in property of which
she dies seized, although the particular estate shall not terminate
before the death of the wife.

NOTE. This is a new section introduced in accordance with the plan to
make the rights of the husband and wife the same. The last sentence is
added to make the husband's rights the same as those of the wife in es-
tates in remainder, the existing law making a distinction in this respect.
See Hitner v. Ege, 23 Pa. 305.



INTESTATE ACT SECTIONS 5-6 221

306. HUSBAND'S RIGHT BARRED BY REFUSAL TO

PROVIDE FOR WIFE, OR BY DESERTION.

SECTION 5. No husband who shall have, for iQne year) or up-
wards previous to the death of his wife, wilfully neglected or re-
fused to provide for his wife, or shall have, for that period or up-
wards, wilfully and maliciously deserted her, shall have the right
to claim any title or interest in her real or personal estate after her
decease, under the provisions of this act.

NOTE. This is part of Section 5 of the Act of May 4, 1855, P. L. 430,
3 Purd. 2461, amended by the Act of May 3, 1915, P. L. 234, 6 Purd. 6588,
omitting the words, "as aforesaid," before the words, "for one year or
upwards."

Where the evidence adequately supported the conclusion of the court
that under the particular circumstances indicated by the evidence the
husband was living apart from his wife, the decedent, with her tacit con-
sent and that he was not guilty of wilfully neglecting to provide for her
within the meaning of this section of the act, it was held that he had not
forfeited his interest in her estate. Phillips' Est., 271 Pa. 129.

307. WIDOW'S RIGHT BARRED BY DESERTION.

SECTION 6. No wife who shall have, forgone year) or upwards,
previous to the death of her husband, wilfully and maliciously de-
serted her husband, shall have the right to claim any title or in-
terest in his real or personal estate after his decease, under the
provisions of this act.

NOTE. This is the part added to Section 5 of the Act of 1855, by the
amendment of 1915, with the substitution of the words "under this act,"
for "under the intestate laws of this commonwealth."

This was held to be a reenactment of the Act of May 3, 1915 (P. L. 429),
in Post's Estate, 27 Dist. 748, 36 Lane. 8, 66 P. L,. J. 761, 8 Leh. 115, 33
York ii.

Under the Intestate Act of 1917, a wife, who left her husband and
maintained unlawful association with another from 1908 until 1918 when
her husband died, she as well as her legal representatives are barred from
participating in his estate, when, from the evidence it could not be found
as a fact, that she was justified in deserting him.

When, from the evidence it can be found that a wife was iustifiedJn de-_
serting her husband, her subsequent unlawful association with another
man would not bar her from sharing in his estate after his decease. Can-
navan's Est., 69 P. L. J. 84.

Where a husband and wife entered into an agremeent in writing in
which they recite that, because of "divers disputes and differences, they
have consented and agreed to live separately and apart from each other



222 INTESTATE ACT SECTIONS 6-7 (a)

during their natural lives," and there is nothing to show that either ever
released, waived or relinquished his or her rights in the estate of the
other, including the right of inheritance, and they lived apart until the
husband's death, the children of the husband cannot, after his death, op-
pose the allowance to the wife of her statutory interest in her husband's
estate, under the Act of June 7, 1917, P. L. 429, on the ground of willful
and malicious desertion. As the husband was content with the provisions
of the agreement during his lifetime, his children cannot do what their
father did not see fit to undertake while he lived. Lawton's Est., 266 Pa.
558, 106 Atl. 699.

Under this section of the act where "it was agreed by everybody that
the claimant was the surviving widow of the deceased testator, manifestly
the burden of proof was upon those who asserted she had forfeited her
right because of her wilful and malicious desertion of her husband."

Head, J., in Schreckengost's Est., 77 Super. 235.

308. ISSUE.

SECTION 7. The real and personal estate of such intestate, not
hereinbefore given to the surviving spouse, if any there be, shall
descend to and be distributed among his or her issue, according to
the following rules and order of succession, namely,

309. CHILDREN.

(a) If such intestate shall leave children, but no other descend-
ant, being the issue of a deceased child, the estate shall descend to
and be distributed among such children.

NOTE. This is clause i of Section 2 of the Act of 1833, 2 Purd. 1996,
modified in language because of the abolition of life estates to the widow
and surviving husband.

Clauses (6), (c) and (d) of Section 7 are copied from clauses 2, 3 and
4 of Section 2 of the Act of 1833.

Section 2 of the Act of 1833 was derived from Sections 3 and 4 of the
Act of April 19, 1794, 3 Sm. L. 143.

The earlier acts provided, in substance, as follows: Act of 1683 (noth
Law) : "That the estate of an intestate shall go to his wife, his child, or
children." Act of 1684 (i72d Law) : "The remainder (after the widow's
share) shall go to the children, the eldest son having a double part or
share." Act of 1693: "One-third to the wife, the residue among his chil-
dren, and such as legally represent them (if any of them be dead) the
eldest son having a double part or share," and, as to real estate, "the resi-
due to be allotted and distributed as the surplusage of personal estate is
limited and directed." Act of 1705 (3 Sm. L. 156 n.) : "All the residue,
by equal portions, to and amongst the children of such person dying intes-
tate, allowing the eldest son two shares ; and to such persons as legally
represent such children, in case any of the said children be then dead
* * * to whom such distribution is to be made." Section 8 of the Act of
1705 provided that "the surplusage or remaining part of the intestate's
lands, tenements and hereditaments, not sold, or ordered to be sold, by



INTESTATE ACT SECTION 7 (a), (&), (c), (rf) 223

virtue of this act, and not otherwise limited by marriage settlement, shall
be divided between the intestate's widow and children, or the survivors
of them, who shall equally inherit and make partition, as tenants in
common may or can do. * * * But if the intestate leaves no widow nor
child living at the time of his death, or if the children all die in their
minority, without issue, then the said lands and tenements shall descend
and come to the intestate's heir at law, according to the course aforesaid.
But if any of the intestate's children, dying before the intestate, shall leave
lawful issue, such issue shall equally inherit the intestate's lands and tene-
ments, with their uncles or aunts, and make partition as aforesaid." Act
of March 23, 1764 (3 Sm. L. 159 n.) : "If after the death of any father
and mother any of their children hath died, or, at any time after the pass-
ing of this act shall die intestate, in their minority, unmarried, and without
issue, but not otherwise, the lands, tenements, hereditaments and estates,
real and personal, of every such intestate, shall be equally divided amongst
the surviving children, and the representatives of any child or children
then dead, those representatives taking only such part or share, as should
have passed to the child or children they represent respectively in sev-
eralty forever. But if any child, either of age or in his or her minority,
having or being entitled to any personal estate under such father, shall,
after the passing of this act, die intestate, unmarried, and without issue,
during the life of his or her mother, all such personal estate shall be
equally divided between such mother of the deceased, and his or her
brothers and sisters, and their legal representatives, in case any such
brother or sister be then dead, they the said representatives only taking
the share that should have passed to his, her or their parents, had he or
she been living."

310. GRANDCHILDREN.

(&) If such intestate shall leave grandchildren but no child or
other descendant, being the issue of a deceased grandchild, the es-
tate shall descend to and be distributed among such grandchildren.

311. DESCENDANTS IN SAME DEGREE OF CON-

SANGUINITY.

(c) If such intestate shall leave descendants in other degrees
of consanguinity, however remote from him, and all in the same
degree of consanguinity to him, the estate shall descend to and be
distributed among such descendants.

312. DESCENDANTS IN DIFFERENT DEGREES OF

CONSANGUINITY.

(rf) If such intestate shall leave descendants in different de-
grees of consanguinity to him, the more remote of them being the



224 INTESTATE ACT SECTIONS 7 (d), i, 2, 3-8

issue of a deceased child, grandchild or other descendant, the estate
shall descend to and be distributed among them as follows,
namely,

313. SHARES OF CHILDREN.

1. Each of the children of such intestate shall receive such share
as such child would have received if all the children of the intestate
who shall then be dead, leaving issue, had been living at the death
of such intestate.

314. SHARES OF GRANDCHILDREN.

2. Each of the grandchildren, if there shall be no children, in
like manner, shall receive such share as he or she would have re-
ceived if all the other grandchildren who shall then be dead, leav-
ing issue, had been living at the death of the intestate, and so in
like manner, to the remotest degree.

315. ISSUE TAKING BY REPRESENTATION.

3. In every such case, the issue of such deceased child, grand-
child or other descendant, shall take, by representation of their
parents, respectively, such shares only as would have descended
to such parents, if they had been living at the death of the in-
testate.

316. PARENTS.

SECTION 8. In default of issue as aforesaid, the real and per-
sonal estate of such intestate, not hereinbefore given to the sur-
viving spouse, if any there be, shall go to and be vested in the
father and mother of such intestate, or if either the father or
mother be dead at the time of the death of the intestate, the parent^
surviving shall take such real and personal estate.

NOTE. This is derived from Sections 3 and 5 of the Act of 1833, 2 Purd.
1997-8, altered so as to abolish the distinction between real and personal
estates and give both to the parents absolutely, and modified in language
because of the abolition of life estates to the widow and surviving husband.

Section 3 of the Act of 1833 was derived from Sections 5 and 7 of the
Act of April 19, 1794, 3 Sm. L. 143. Those sections provided that where
a person died without widow or lawful issue the father should take the
real estate for life and the personal estate absolutely, unless such estate
came to the intestate from the part of his mother, in which case such
estate should descend as if the intestate had survived his father. Section
7 of the Act of 1794 provided that where an intestate left neither widow,



INTESTATE ACT SECTIONS 8-9 .. 225

lawful issue nor father, but his mother survived, she should take the real
and personal estate in the same way.

Section 5 of the Act of 1833 was derived from Section 6 of the Act
of 1794 and Section 5 of the Act of April 4, 1797, 3 Sm. L. 296. Section
6 of the Act of 1794 provided that if the intestate left neither widow nor
issue but left a father and brothers and sisters, the brothers and sisters
should take the real estate after the death of the father, with provisions
for representation by the issue of deceased brothers or sisters ; but that
if the intestate left no brothers or sisters nor their representatives, the
estate should go to the father in fee simple, unless it had descended from
the part of the mother.

Section 5 of the Act of 1797 provided that the estate of a woman dying
intestate without leaving a husband should descend and be divided in the
same manner as the Act of 1794 provided in the case of a man dying in-
testate. This section further provided that if any intestate died leaving
neither widow, issue, father, brother, sister, or their representatives, then
the estate should be vested in fee simple in the mother, unless it had
descended from the part of the father.

The Act of 1683 (iioth Law) provided that where an intestate left no
wife, child, brother or sister or children of brothers or sisters, one-half
of the estate should go to the parents and the other half to the next of kin.

The Act of 1684 (i72d Law) provided that in such case one-half should
go to the parents and one-half to the governor.

The Act of 1693 provided that in such case the whole estate should go
to the parents.

The Act of 1705 (3 Sm. L. 156 n.) provided that in the absence of issue
one-half of the estate should go to the wife and the residue "be distributed
equally to every of the next kindred of the intestate, who are in equal
degree, and those who legally represent them," and if there was no wife
then the entire estate should be distributed to such kindred.

Where A died intestate, unmarried and without issue, leaving to survive
him as next of kin and heirs-at-law his father and mother, and the father
died prior to distribution of the estate, it was held, that under Section 8
of the Intestate Act of 1917 all the personal estate passed to decedent's
mother in her own right. Manzke's Est., 13 Berks 152.

The court relied on Frankenfield v. Gruver, 7 Barr 448: "On the death
of an intestate without issue, the third section of the revised Act of 1833
gives his personal estate to his father and mother, if living, jointly and
absolutely; and this, like any other joint chose in action or chattel, sur-
vives to the surviving wife. Had the husband received the assets in this
instance, he would have made them his own, and his wife could have
claimed them only as his administratrix; but as he died a few days after
the death of his son, she is entitled in her own right." See, also, Hamm
v. Meisenhelter, 9 Watts 349; Gillan's Est, 65 Pa. 395-98.

317. COLLATERAL HEIRS.

SECTION 9. In default of issue, father and mother, the real and

personal estate of such intestate, not hereinbefore given to the sur-
15



226 INTESTATE ACT SECTION 9 (a)

viving spouse, if any there be, shall descend to and be distributed
among the collateral heirs and kindred of such intestate, without
distinction between those of the whole and those of the half blood,
according to the following rules and order of succession, namely,

The introductory clause is altered so as to abolish the distinction between
the whole and the half blood in the inheritance of real estate and to make
the rule as to real estate the same as that provided by clause 5 of Section
4 of the Act of 1833 in the case of personal estate. Clause 5 therefore
becomes unnecessary and 'is omitted. The language of the introductory
paragraph is further modified because of the abolition of life estates to
the widow and surviving husband.

The distinction at present existing in our laws concerning the inheritance
of real estate between heirs of the whole blood and those of the half blood
is now admitted by all legal critics to have been unsatisfactory even in the
times when it originated. Even Blackstone, Book 2, ch. 14, after stating
that it is almost peculiar to the common law, and attempting to justify or
rather explain it, admits that it is certainly a very fine-spun and subtle
nicety. Sir Henry Sumner Maine, in his Ancient Law, expresses the opin-
ion that nothing in the literature of the history of the law is more curious
than Blackstone's remarks upon this rule of feudal succession. The rule
had been entirely or partially abolished in very many of the United States
even in Chancellor Kent's time (4 Commentaries 404) ; and has been
abolished in others since he wrote. In Pennsylvania, no distinction is
made by the present law between the whole and half blood in the distri-
bution of personal property, and the present Commissioners are, as has
been stated, strongly of opinion that real and personal property should
descend and be distributed according to the same uniform plan.

318. BROTHERS AND SISTERS.

(a) If such intestate shall leave brothers and sisters, or either,
and no nephew or niece, or child of a deceased nephew or niece,
being the issue of a deceased brother or sister, the real and personal
estate shall descend to and be distributed among such brothers and
sisters.

NOTE. Clauses (a) to (c) of this section are derived from clauses i,
2 and 4 of Section 4 of the Act of 1833, 2 Purd. 1998.

Changes have also been made to cover the principle of representation
by grandchildren of deceased brothers or sisters (see Section n), and
clause 3 of Section 4 of the Act of 1833 is replaced by the present clause
( d) ; but no change is intended in the existing law as stated in Krout's
Appeal, 60 Pa. 380.

Section 4 of the Act of 1833 was derived from Sections 6 and 8 of the
Act of 1794, and Sections 5 and 7 of the Act of 1797.

Section 6 of the Act of 1794 provided that real estate should, after the
death of the father, descend to brothers and sisters, with provision for
representation by the issue of deceased brothers or sisters, the principle



INTESTATE ACT SECTION 9 (a), (&), (O, (<0 227

of representation not being limited to the children of brothers and sisters.
Section 8 of the Act of 1794 contained similar provisions for the case
where the mother of the intestate took a life estate.

Section n of the Act of 1794 provided for inheritance by the half blood
in the absence of parents or brothers or sisters of the whole blood or their
issue, but with a limitation to those of the blood of the first purchaser.

Section 5 of the Act of 1797 provided for the inheritance by brothers
and sisters in the absence of widow, issue or parents, with provision for
representation by the issue of deceased brothers or sisters. Section 7 of
that act provided for inheritance of the real estate by brothers and sisters
of the whole blood to the exclusion of those of the half blood, but per-
mitted the half blood to share equally in the personal estate, and provided
for the inheritance of both real and personal property by brothers and
sisters of the half blood in the absence of those of the whole blood or
their issue, with a limitation to those of the blood of the first purchaser.

The Act of 1683 (noth Law) provided for inheritance by brothers and
sisters or the children of brothers or sisters in the absence of wife or
child. No distinction was made as to the half blood.

The Act of 1684 (i72d Law) was similar.

The Act of 1705 (3 Sm. L. 156 n.) provided that in the absence of issue
the widow should take half the estate and the residue should go equally
"to every of the next kindred of the intestate, who are in equal degree,
and those who legally represent them : Provided, That there be no repre-
sentatives admitted amongst collaterals, after brothers and sisters chil-
dren." In case there was neither widow nor child, then the next kindred
took the whole estate in the same manner.

319. NEPHEWS AND NIECES.

(&) If such intestate shall leave neither brother nor sister, and
no child of any deceased nephew or niece, being the issue of a de-
ceased brother or sister, but nephews or nieces, being the children
of such deceased brother or sister, the real and personal estate shall
descend to and be distributed among such nephews and nieces.

320. CHILDREN OF DECEASED BROTHERS OR SIS-

TERS TAKING BY REPRESENTATION.

(c) If such intestate shall leave neither brother nor sister, nor
any nephew or niece, being the child of such deceased brother or
sister, but children of deceased nephews or nieces, the real and
personal estate shall descend to and be distributed among such
children of deceased nephews or nieces.

321. DESCENDANTS OF BROTHERS AND SISTERS.

(rf) If such intestate shall leave brothers or sisters and nephews
or nieces, being children of a deceased brother or sister, and chil-



228 INTESTATE ACT SECTIONS 9 (d)-io *

dren of deceased nephews or nieces, being issue of deceased broth-
ers and sisters, or shall leave members of any two of these three
classes, the real and personal estate shall descend to and be dis-
tributed among such brothers and sisters, nephews and nieces, and
children of deceased nephews and nieces, as follows, namely: .

Each brother and sister shall receive such share as he or she
would have received if all the brothers and sisters who died before
the intestate leaving children or children of deceased children sur-
viving the intestate had been living at the death of the intestate.

Each nephew and niece, if the intestate shall leave any brother
or sister, shall receive an equal portion of the share which his or
her parent would have taken if then living, which portion shall be
what he or she would have taken if all the children of his or her
parent who died before the intestate leaving children surviving the
intestate had been living at the death of the intestate ; but if such
intestate shall leave neither brother nor sister, the nephews and
nieces shall take per capita.

Each child of a deceased nephew or niece, whether the intestate
shall leave members of one or both of the other classes, shall re-
ceive an equal portion of the share which his or her parent would
have received if living at the death of the intestate.

See Wightman's Est, 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833.

322. NEXT OF KIN.

SECTION 10. In default of all persons hereinbefore described,
the real and personal estate of the intestate shall descend to and
be distributed among the grandparents or descendants of deceased
grandparents of such intestate, and in default thereof to and
among the next of kin to such intestate.

NOTE. This is Section 7 of the Act of 1833, 2 Purd. 1999, which was
derived from Section 12 of the Act of 1794. The latter section, however,
provided for representation by the issue of kindred without limitation.

The explanatory words at the end, declaratory of the existing law, have
been added for completeness.

The Acts of 1683, 1684, 1693 and 1705 provided for inheritance by the
next of kin, the Act of 1705 limiting the principle of representation, as
already stated, to brothers' and sisters' children.

This and Sections n and 12 make no change in the existing law, inas-
much as no suggestions have come to the Commissioners for their modi-
fication, and none seem desirable.

See Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833.



INTESTATE ACT SECTION 10 229

When an intestate's only next of kin are uncles and aunts, they take
per capita and not per stirpes under the Intestate Act of June 7, 1917,
P. L. 429; and if an uncle or aunt be deceased, leaving children, such
children take only by representation the share their parent would have
taken if living.

Gest, J., held : "The exceptant relied upon Sections 10 and 12 of the
Intestate Act of June 7, 1917, P. L. 429, 437, which, it appears from the
report of the Commissioners to Codify and Revise the Law of Decedents'
Estates, were derived from the preexisting law. The stirpetal distribu-
tion, however, which is provided thereby applies only in case the decedent
is survived by one or more than one grandparent, and not when, as in this
case, all the grandparents predeceased the intestate. When the next of
kin of the intestate are all uncles and aunts, they take equally and per



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 24 of 71)