Raymond Moore Remick.

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

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capita, as clearly appears from Section 19 of the act; and if an uncle or
aunt be deceased, leaving children, such children take only by representa-
tion the share their parent would have taken if living, as is provided by
Section u." Brodie's Est., 30 Dist. 654.

Where the only heirs living and able to take are first and second
cousins, the former take to the exclusion of the latter. In so holding,
Moschzisker, C. J., said, inter alia:

"The question here presented involves the right of appellants, who are
second cousins, to share with first cousins in the distribution of the estate
of an intestate, there being no nearer kindred.

"The Act of June 7, 1917, P. L. 429, designates the persons who are
entitled to the real and personal estate of an intestate after the payment
of all just debts and legal charges. The first eight sections of the statute
determine the distributive shares of the spouse, issue, father and mother;
and, in absence of these, the ninth section provides for a division among
certain collateral heirs and kindred.

"In the present case, as previously indicated, there is a complete default
of all those on whom the right of distribution is bestowed by the first
nine sections of the act, but there are living three first cousins, children
of two deceased aunts, and two second cousins, who are grandchildren
of another deceased aunt, all of whom are descendants of one of the
deceased grandparents of the intestate.

"Appellants contend that the inheritance falls to the first and second
cousins together, each one of whom is entitled to share 'per capita,' as a
member of a 'new class of collateral heirs/ under Section 10 of the Act
before us for construction, which provides that, 'in default of all persons
herinbefore 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.'

"The section just quoted is vague and indefinite; it fails either to say
or suggest what possible groups of the persons indicated are to inherit,
how these groups are to be arrived at, and whether those composing them
take, as individuals, per stirpes or per capita. The section is evidently
intended as a general one, which does not attempt to mark out the re-
spective rights of the parties included in it. To construe this part of the
act so as to bring about the results contended for by appellants would



230 INTESTATE ACT SECTION 10

lead to such radical departures from the historical development of our
intestate law, and the system of representation there built up, that one is
immediately led to investigate the subsequent provisions of the statute,
in order to find the real meaning of the part in controversy; and, for-
tunately, when this is done, light is seen. Before entering upon a con-
sideration of these other sections, however, it may be well first to trace
briefly the progress of legislation, for much the better part of a century
past, bearing on the question we have to solve. (Here follows a review
of prior legislation). ******

"With the law in the condition indicated, the Intestate Act of 1917 was
passed.

"While Section 10 of this late act provides that, in default of other
and nearer kin, the estate of an intestate shall descend to 'grandparents
or descendants of deceased grandparents,' it is evident from- the other
parts of the act that this is intended in a general sense and as merely
introductory to subsequent, more specific provisions, particularly Section
12. which continues the existing rule laid down in the Act of 1887, supra,
that, when a living grandparent is nearest of kin to an intestate and, at
the time of the latter's death, there are also alive descendants of a de-
ceased grandparent, these descendants represent the latter and share the
estate of the intestate with the surviving grandparent, in the manner
specifically provided.

"When Sections 10 and 12 are read together, we see that it never was
intended by the former to change the established policy of our law and
set up unlimited representation among collaterals generally (this con-
clusion is reinforced by a consideration of certain other sections, which
we shall presently take up; nor was it specifically intended that, with
first cousins of an intestate alive, second cousins should inherit as repre-
senting their parents, or otherwise, which parents, we may remark, would
be first cousins, to the intestate, in the same class with other first cousins,
and, if alive, entitled to inherit with them, but if we take the words as
they stand in Section 10, without reference to other parts of the act, and
give them controlling significance, as appellants would have us do, this
construction, carried to its logical conclusion, would mean that both first
and second cousins should take at the same time, and, since the language
there employed does not say the estate shall go to such of the descendants
of deceased grandparents as may be nearest of kin to the intestate, but
simply without limitation that it shall go to 'descendants of deceased
grandparents,' this might, in many cases, lead to children, in effect, rep-
resenting their living parents, which, of course, is contrary to the per
stirpes rule: Shoch Estate No. 2, 271 Pa. 165. Parts of the act subsequent
to Section 10, however, forbid any such distribution as contended for by
appellants ; and thus we see that the section in questioin cannot have the
meaning they would give to it.

"While Section 12, already referred to, extends somewhat the principle
of representation among collaterals taking thereunder, yet the provisions
of that section apply only where 'one or more than one grandparent' is
alive and entitled to take at the death of the intestate; and the extended
representation there provided for is confined to 'children or other de-
scendants of any deceased grandparent,' when, and only when, they share



INTESTATE ACT SECTIONS 10-11 231

the estate involved with a surviving grandparent. Section 10 merely intro-
duces the idea, in a general way, of who, in default of the nearer kindred
provided for in the earlier sections, may inherit; .it does not undertake
to specify under what conditions the surviving grandparents or the de-
scendants of dead grandparents, respectively, shall take, or in what pro-
portions; that is left to Section 12, which fully covers the ground. * * *
"We agree with the court below that 'a clear view of the legislative
intent is found by linking together the tenth, eleventh and nineteenth
Sections of the act (and considering the twelfth). It then appears that,
when there is a lapse of all of those in succession to the intestate pro-
vided for in the other sections, the descendants of deceased grandparents
inherit, * * * (but when there are) cousins german * * * (being)
in the same degree of consanguinity, they take the whole of the estate in
equal shares; and this view of the legislative intent precludes a distribu-
tion to the second cousins.' In short, when there is no living grandparent,
and first cousins of the intestate survive him, second cousins also sur-
viving, are not the next of kin (nearest blood relations), nor can they
take by representation ; hence they do not take at all. * * *" Opinion
of January 3, 1922 in Miles' Est., 272 Pa. 329.

323. LIMITS OF REPRESENTATION.

SECTION ii. The grandchildren of brothers and sisters and the
children of uncles and aunts shall be entitled to take by represen-
tation the shares of real and personal estate which their parents
would have taken if living; but, except as hereinafter provided,
there shall be no representations admitted collaterals after the
grandchildren of brothers and sisters and the children of uncles
and aunts.

NOTE. This takes the place of Section 8 of the Act of 1833, 2 Purd.
1999, and Section 2 of the Act of April 27, 1855, P. L. 368, 2 Purd. 1999,
with the addition, in the last line, of the words "grandchildren of brothers
and sisters and the."

The Commissioners who drafted the Act of 1833 remarked that in Sec-
tion 8 they restored to the law a provision which was included in the Act
of 1705 and continued in force until the Act of 1794, from which it was
omitted, probably through inadvertence. See notes to Sections 9 and 10.

Section 2 of the Act of 1855 extended the principle of representation so
as to include the grandchildren of deceased brothers and sisters and the
children of deceased uncles and aunts. There seems to be no reason for
altering the law as it now stands.

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.



232 INTESTATE ACT SECTION n

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 distribution, 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. Where the next of kin to the
intestate are all uncles and aunts, they take equally and per capita, as
clearly appears from Section 19 of the act; 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, as is provided by Section n.
We are, therefore, of opinion that the auditing judge was correct in the
distribution which was made in the adjudication." Brodie's Est., 30
Dist. 654.

Where decedent died intestate, unmarried, without issue and leaving
him to survive neither father, mother, brothers, sisters, nephews or nieces,
and his nearest collateral relatives were first cousins, the children of
deceased uncles and aunts; and distribution was made to the eight first
cousins in equal shares, Miller, P. J., held, in dismissing exceptions :

"This section (Sec. n, su,pra) is a restatement of Section 8 of the
Intestate Act of 1833 and of Section 2 of the Act of April 27, 1855. These
two acts were construed as constituting an additional class of collateral
heirs and fixed the right of inheritance by representation (Hays' Appeal,
89 Pa. 256), but under the Act of June 30, 1885, P. L. 251, this con-
struction could no longer be followed. This act provides, Section i, 'that
whenever by the intestate laws of this Commonwealth it is directed that
the real and personal estate shall descend to, and be distributed among
several persons, whether lineal or collateral heirs or kindred standing in
the same degree of consanguinity to the intestate, if there shall be only
one of such degree he shall take the whole of such estate, and if there
shall be more than one they shall take in equal shares, and if real estate
they shall hold the same as tenants in common.'

"It is clear that the reenactment of Section 19, with the interpretation
put upon the Act of '85 as amending the Act of '55, shown in the
cases cited, provides that this distribution must be per capita among
the eight first cousins, they being all of the same class and in the same
degree of consanguinity from the intestate. The opposition to this view
is that, when the Legislature in 1917 reenacted on the same day and at
the same time Section n and Section 18 and thus seemed to put the
provisions of Section n back to the place it occupied prior to the Act of
'55, and the decisions thereunder in Cremer's Estate, 156 Pa. 40, this re-
stored the rule in Hay's Appeal, 89 Pa. 256, and that distribution in the
case at bar must be by representation.

"The question may well be raised touching the language of Section n,
which reenacted the old provisions already referred to; it puts the
grandchildren of brothers and sisters and the children of uncles and
aunts into a class who shall be entitled to take by representation. In this
connection it must be observed that Section 10 of the Intestate Act of
1917 provides 'that in default of all persons hereinbefore described the



INTESTATE ACT SECTION 11 233

real and personal estate of the intestate shall descend to and be dis-
tributed among the grandparents or descendants of deceased grandparents.'
It seems to be manifest from the language of this section that grand-
children of brothers and sisters are provided for in Section 9 of the
same act and would take exclusive of the children of uncles and aunts,
and that, therefore, the suggestion made that Section n applies only
where grandchildren of brothers and sisters and children of deceased
brothers and sisters, or uncles and aunts and children of deceased uncles
and aunts, survive the intestate, is not manifest, since that would read
into the section language not found there.

"To hold that Section n reenacts the law as construed under Hays'
Appeal repealing the effect of Section 19, which, as stated in Cremer's
Estate, harmonizes the entire intestate system when the parties entitled to
take are in the same degree of consanguinity, cannot have been the intent
of the legislature, but that the intent was not to change the law, as con-
strued by the later decisions of the appellate courts in passing on the Acts
of 1855 and 1885." Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68
P. L. J. 833-

In discussing the rights of the second cousins as against first cousins as
affected by this section of the act, Moschzisker, C. J., said inter alia,

"Section II reenacts the rule provided in earlier legislation, that, 'the
grandchildren of brothers and sisters and the children of uncles and
aunts shall be entitled to take by representation the shares * * * *
which their parents would have taken if living;' but it expressly states
that, 'except as hereinafter provided, there shall be no (other) repre-
sentation admitted among collaterals;' the words 'as hereinafter pro-
vided' evidently having application to the representation among descendants
of a dead grandparent referred to in Section 12, and before discussed.

"The part of the act now under discussion, Section II, apparently deals
with the phase of the principle of representation which determines who are
entitled to take, and not with its other phase, how division shall be
made among those so entitled; the latter aspect of the matter seems to
be provided for by Section 19. * * * *

"The provision (of Section 19) that lineal or collateral heirs standing
in the same degree of consanguinity to the intestate shall take in equal
shares, when read with the provision in Section II, that 'there shall be no
representation admitted among collaterals after the grandchildren of
brothers and sisters and children of uncles and aunts,' shows plainly that
the tenth section, depended on by appellants, cannot be given the effect of
setting up unlimited representation among collaterals ; nor can it be con-
strued to set up a new class of collateral heirs, who, although of different
degrees, all being 'descendants of deceased grandparents of the intestate,'
would take equally the estate of the latter, as contended by these second
cousins, such a scheme of distribution is so unusual in our law as to
require plain and unequivocal language to establish it (Whitaker's Estate,
175 Pa. 139, 143), which we do not find here. * * *" Opinion of Jan-
uary 3, 1922, in Miles' Est., 272 Pa. 329.



234 INTESTATE ACT SECTION 12 (a)

324. GRANDPARENTS AND ISSUE OF DECEASED
GRANDPARENTS.

SECTION 12. If the next of kin of an intestate, entitled to take
under the provisions of this act, shall be one or more than one
grandparent of such intestate, and there shall be living, at the
time of the decease of such intestate, children or other descend-
ants of any deceased grandparent, then the children or other
descendants of any such deceased grandparent shall represent the
grandparent so deceased, and shall take the share of real or
personal estate to which such deceased grandparent would be
entitled if living.

The issue of any such deceased grandparent shall take accord-
ing to the following rules of succession, namely,

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 distribution, 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. Where the next of kin of the
intestate are all uncles and aunts, they take equally and per capita, as
clearly appears from Section 19 of the act; 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, as is provided by Section n.
Brodie's Est, 30 Dist. 654.

See opinion of Moschzisker, C. J., January 3, 1922, in Miles' Est., 272
Pa. 329-

325. CHILDREN OF DECEASED GRANDPARENT.

(a) If there be only children of such deceased grandparent,
the share of such deceased grandparent shall descend to and be
distributed among such children.

NOTE. The clauses of this section are copied from clauses i to iv of
Section i of the Act of May 25, 1887, P- L. 261, 2 Purd. 1999.

It is stated in Whitaker's Estate, 175 Pa. 139, 142, that the Act of 1887
was passed to meet the decision in McDowell v. Addams, 45 Pa. 430,
where it was held that a living grandparent took to the exclusion of the
descendants of a deceased one.



INTESTATE ACT SECTION 12 (&), (c), (d) i, 2 23$

326. GRANDCHILDREN OF DECEASED GRAND-

PARENTS.

(&) If there be grandchildren of such deceased grandparent
and no other descendants, being children of a deceased grandchild,
and no child, the share of such deceased grandparent shall de-
scend to and be distributed among such grandchildren.

The only change made from the Act of 1887 is to add, in clause (&),
the words "being children of a deceased grandchild" after "no other
descendants." This is the evident meaning of the clause, and the words
are inserted for the sake of clearness.

327. DESCENDANTS OF DECEASED GRANDPARENT

IN SAME DEGREE OF CONSANGUINITY.

(c) If there be descendants of such deceased grandparent in
any other degree however remote from him, and all in the same
degree of consanguinity to him, the share of such deceased
grandparent shall descend to and be distributed among such
descendants.

328. DESCENDANTS OF DECEASED GRANDPARENT

IN DIFFERENT DEGREES OF CONSANGUIN-
ITY.

(d) If there be descendants of such deceased grandparent in
different degrees of consanguinity to him, the more remote of
them being the issue of a deceased child, grandchild or other
descendant, the share of such deceased grandparent shall descend
to and be distributed among them as follows, namely,

329. CHILDREN OF DECEASED GRANDPARENT.

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

330. GRANDCHILDREN OF DECEASED GRAND-

PARENT.

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



236 INTESTATE ACT SECTIONS 12 (d) 3-13

331. ISSUE TAKING BY REPRESENTATION.

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

NOTE. This provision of the Act of 1887 introduced the principle of
unlimited representation, not in harmony with the Act of 1855 (Section
324 supra) ; but it has been in effect for thirty years and so far as the
Commissioners are advised, has proved satisfactory. Hence, they do not
feel justified in recommending a change.

332. RULE AS TO BLOOD OF FIRST TAKER ABRO-

GATED.

SECTION 13. In all cases where, under the provisions of this
act, the real estate shall descend to and the personal estate shall
be distributed among the next of kin of an intestate, the real as
well as the personal estate shall pass to and be enjoyed by such
next of kin, without regard to the ancestor or other relation
from whom such estate may have come, it being the true intent
and meaning of this act that the rule excluding from the inherit-
ance of real estate persons not of the blood of the ancestor or
other relation from whom such real estate descended, or by whom
it was given or devised to the intestate, be abrogated, and that
the heir at common law shall not take, in any case, to the exclu-
sion of other heirs and kindred standing in the same degree of
consanguinity with him to the intestate.

NOTE. This is Section n of the Act of 1833, 2 Purd. 2002, amended so
as to apply to all cases and not merely to cases "not expressly provided
for" by the act. It involves the repeal of Section 9 of the Act of 1833, 2
Purd. 2000-1, and of Section 2 of the Act of May 25, 1887, P. L. 261, 2
Purd. 2000, which reenacted the provisions of Section 9 of the Act of
1833 in connection with the cases provided for by the Act of 1887, as to
which see the last preceding note.

The Act of 1794, as already noted, expressly imposed the rule as to the
blood of the first purchaser in certain cases, namely, those of inheritance
by the father or mother or by the half blood ; and the common law rule
seems to have been applied generally before the Act of 1833 (see Bevan v.
Taylor, 7 S. & R. 397; overruling Walker v. Smith, 3 Yeates 480).
There is no reference to the rule in any of the earlier acts.

The common law rule as to inheritance from the blood of the first
purchaser was infringed upon by the Act of 1833, but still exists in other
cases where its effect is generally entirely arbitrary ; and the Commis-
sioners recommend its total abolition. This change is also in accordance



INTESTATE ACT SECTIONS 13-14-15 () 237

with the general principle of this revision, that no distinction should be
made in the intestate act between real and personal estates.



See Miller v. Brown, 49 Pa. C. C. 332.



333. FOREGOING PROVISIONS APPLY ONLY TO

LEGITIMATES.

SECTION 14. Except as otherwise provided in Section 15, the
foregoing provisions of this act relative to descent and distribu-
tion of real and personal estate among the heirs and next of kin
of intestates shall be construed to mean such persons only as may
have been born in lawful wedlock.

NOTE. This is Section 17 of the Act of 1833, 2 Purd. 2003, except for
the insertion of the words from "except" to "foregoing," and the sub-
stitution of "next of kin" for "descendants and collateral relations." The
rights of illegitimates are treated in the next section ; the sections after
Section 15 apply to illegitimates as well as legitimates.

The Act of 1794 and the earlier acts contain no reference to illegiti-
mates, but mention "children" and "lawful issue."

334. ILLEGITIMATES, INHERITANCE AS BETWEEN

MOTHER, GRANDPARENTS AND CHILD.

SECTION 15 (a) The mother of an illegitimate child, her heirs
and next of kin, the maternal grandfather and grandmother of
said illegitimate child, and said illegitimate child, its heirs and
next of kin, shall have capacity to take or inherit from each other
personal estate as next of kin, and real estate as heirs, under the
foregoing provisions of this act, in the same manner and to the
same extent as if said child or children had been born in lawful
wedlock.

NOTE. This is Section 2 of the Act of July 10, 1901, P. L. 639, 2 Purd.



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 25 of 71)