Raymond Moore Remick.

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

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2005-6, changing "legal representatives" to "next of kin" in two places,
substituting "the foregoing provisions of this act" for "the intestate laws
of this Commonwealth," omitting, in lines 3 and 4, the words "or children"
before "its," and "or their" after "its," and in line 6, "in fee simple, or
otherwise," after "heirs," and adding "grandfather."

The Act of April 27, 1855, P. L,. 368, Section 3, gave an illegitimate
child and its mother capacity to inherit from one another.

The Act of June 5, 1883, P. L. 88, Section I, gave illegitimate children
of the same mother capacity to inherit personal property from one another.

Section 3 of the Act of April 27, 1855, supra, was amended by the Act
of June 14, 1897, P. L. 142, Section i, 2 Purd. 2004-5, so as to enable
illegitimate children and their issue and their mother and grandmother to
take or inherit from each other personal and real estate, and as regards



238 INTESTATE ACT-SEcriON 15 (a), (b), (c)

real or personal estate so taken and inherited, to transmit the same accord-
ing to the intestate laws of the state.

The "grandmother" included in the Act of 1807, is presumably, the
maternal grandmother, although the act does not say so.

The Act of June 10, 1901, P. L. S5i, Section i, 2 Purd. 2005, provides
that all children of the same mother, whether legitimate or illegitimate
dying without leaving children or others entitled to inherit under the
existing laws, shall have capacity to inherit from each other, to the ex-
clusion of the grandmother of said illegitimate child or children. This is
covered by clause (b) of the present section of the new act.

The new draft does not include the provision of Section i of the Act
of 1897, and of Section i of the Act of July 10, 1901, that "illegitimate
children shall take and be known by the name of their mother," and the
further provisions of the latter section are also omitted as not within
the scope of an intestate act.

This will be covered by repealing Section i of the Act of 1897 but allow-
ing Section i of the Act of July 10, 1901, 2 Purd. 2005, to stand, although
the other sections of that act should be repealed since their substance is
contained in the new act.

"In this and other states the rigors of the common law rule have been
mitigated by statutes, increasing the rights of illegitimates, especially in
reference to inheritance from and through their mothers. Section 15 of
the 'Intestate Act' of June 7, 1917, P. L. 439, which is a substitute for
former legislation, contains a summary of the present statutory law on this
subject in Pennsylvania." Wanner, P. J. in Commonwealth v. Gross, 35
York 93.

335. INHERITANCE AS BETWEEN CHILDREN,

LEGITIMATE AND ILLEGITIMATE.

(b) Every illegitimate child shall be considered as a brother
or sister to every other child of its mother, legitimate or illegiti-
mate.

NOTE. This is Section 3 of the Act of July 10, 1901, 2 Purd. 2006,
altered by changing "each" to "every," inserting the words "a brother or
sister," omitting the words "of the half blood," since the distinction
between the whole and half blood is abolished by the new act, and omit-
ting the remainder of the section, beginning "notwithstanding any repute
or conviction." Neither the meaning nor the purpose of that part of the
section is apparent.

336. LEGITIMATION AS TO MOTHER, BUT NOT AS

TO FATHER.

(c) The intent of this section is to legitimate an illegitimate
child only so far as is provided by clauses (a) and (b} hereof.



INTESTATE ACT SECTIONS 15 (c), (rf)-i6- (a) 239

This section is not intended to change the existing law with regard
to the father of such a child, and his heirs and next of kin.

NOTE. This is Section 4 of the Act of July 10, 1901, as amended by
Section i of the Act of March 26, 1903, P. L. 70, 2 Purd. 2006, altered
by omitting after "illegitimate child" the words, "or its heirs, as to its
mother and her heirs," and inserting "only so far as is provided in clauses
(o) and (&) of this section;" by substituting "and his" for "or their
respective," and "next of kin" for "legal representatives," and by omitting
the proviso making the act applicable to pending cases, as not being
in harmony with the general policy of the present act, namely, that it
shall apply only to the estates of persons dying on or after a certain day,
subsequent to the approval of the act.

337. LEGITIMATION BY MARRIAGE OF PARENTS.

(d) In any and every case where the father and mother of an
illegitimate child or children shall enter into the bonds of lawful
wedlock, or shall heretofore have entered into the bonds of lawful
wedlock, such child or children shall be legitimated for all purposes
of inheritance by, from or through such child or children, under
the provisions of this act, as if he or they had been born during
the wedlock of his or their parents.

NOTE. This is founded on Section i of the Act of May 14, 1857,
P. L,. 507, 3 Purd. 2445, modified so as to be limited to the purposes of
the intestate law, so as to omit the requirement of cohabitation, and so
as to extend that section to include inheritance, from or through such
legitimated children. The provision that the act shall apply to past cases
is in accord with the Act of April 21, 1858, P. L. 413, Section i, 3 Purd.
2446, which provided that the Act of 1857 should be taken to apply to
all cases within its terms prior to its date as well as those subsequent
thereto.

The Commissioners recommend the omission of the requirement of
cohabitation, as contained in the present law. As this has been construed
by the courts: Clauer's Appeal, n W. N. C. 427; Agnew's Estate, 29
W. N. C. 520, the cohabitation need be only nominal; in cases of "forced"
marriages, real cohabitation is rarely possible and sometimes very in-
advisable.

338. ADOPTED CHILDREN, INHERITANCE AS BE-

TWEEN ADOPTED PERSONS AND ADOPT-
ING PARENT.

SECTION 16. (a) Any minor or adult person adopted according
to law and tEe adopting parent or parents shall, respectively, in-
herit and take by devolution from and through each other per-
sonal estate as next of kin a.ncl real estate as heirs, under the



240 INTESTATE ACT SECTION 16 (a), (6)

provisions of this act, as fully as if the person adopted had been
born a lawful child of the adopting parent or parents.

NOTE. This is founded on Section i of the Act of April 13, 1887, P. L.
53, 2 Purd. 2006, and upon the provisions as to inheritance contained in
the various acts relating to adoption.

This and the other clause of the present section are intended to cover
the entire subject of inheritance by and from adopted persons and seem
to make it necessary to repeal the existing adoption acts, so far only, how-
ever, as they relate to inheritance.

The Act of May 9, 1889, P. L- 168, Section I, i Purd. 280-281, relating
to adoption of adults, provides that the adopted person shall inherit only
as one of the children of the adopting parent, and that such adopted child
and the lawful children of the adopting parent shall inherit from and
through each other as if all had been lawful children of the same parents.

Section I of the Act of April 22, 1905, P. L. 297, 5 Purd. 5227, amending
Section i of the Act of May 19, 1887, P. L. 125, I Purd. 279, which
amended Section 7 of the Act of May 4, 1855, P. L. 431, contains the
same provision.

Section 3 of the Act of June I, 1911, P. L. 539, 5 Purd. 5228, relating
to adoption of adults, provides that the adopted person and the adopting
parent shall inherit and take from and through each other as fully as if
the person adopted had been born the lawful child of the adopting parent
Section 4 of the same act provides that the adopted person and other
children of the adopting parent, whether natural or adopted, shall inherit
from and through each other. This act repeals the Act of 1889 above
cited.

The Act of May 28, 1915, P. L- 580, 5 Purd. 5228, further amends
Section 7 of the Act of May 4, 1855, above cited, by adding the provision
that the adopting parent and the adopted child shall inherit and take from
and through each other as fully as if the person adopted had been born a
lawful child of the adopting parent

See Moore's Est, 30 Dist 152; 68 P. L. J. 670; 15 Del. 367.

339. INHERITANCE AS BETWEEN ADOPTED PER-
SON AND ADOPTED RELATIVES; NATURAL
KIN OF ADOPTED PERSON EXCLUDED.

(fr) The person adopted shall, for all purposes of inheritance
and taking by devolution, be a member of the family of the
adopting parent or parents. The adoptive relatives of the person
adopted shall be entitled to inherit and take from and through
such person to the exclusion of his or her natural parents, grand-
parents and collateral relatives, but the surviving spouse of such
adopted person and the children and descendants of such adopted
person shall have all his, her and their respective rights under
this act. Adopted persons shall not be entitled to inherit or take



INTESTATE ACT SECTIONS 16 (&)-i; (a), (6) 241

from or through their natural parents, grandparents or collateral
relatives, but each adopted person shall have all his or her rights
under this act in the estates of his or her spouse, children and
descendants.

NOTE. This is founded on Section 4 of the Act of June I, 1911, P. L.
539, 5 Purd. 5229, with an extension of its provisions so as to make the
adopted person for all purposes of inheritance a member of the family
of the adopting parent.

This seems to be in accordance with the policy indicated by Section i
of the Act of April 13, 1887, P. L. 53, 2 Purd. 2006, which provides that
"the adopting parents and their lawful heir and kindred shall be treated
and shall inherit from such adopted child, according to the intestate
laws of this commonwealth, the same as though such adopted child were
the natural child and heir-at-law of such adopting parents, to the exclusion
of the natural parents, kindred and heirs-at-law of such adopted child,
reserving to the husband and wife of such adopted child all his or her
respective rights, under the intestate laws ; * * * Provided, however,
That this act shall only apply to such property as the adopted child shall
have inherited or derived from the adopting parents or their kindred."

The proviso is omitted in accordance with what appears to be the legis-
lative policy in later statutes.

See Moore's Est., 30 Dist. 152; 68 P. L. J. 670; 15 Del. 367.

340. SURVIVING SPOUSE AND NO KNOWN HEIRS

OR KINDRED, RIGHTS OF SURVIVING
SPOUSE.

SECTION 17. (a) In default of known heirs or kindred, com-
petent as aforesaid, the real estate of such intestate shall be vested
in the surviving spouse of such intestate, if any, and the surviving
spouse shall be entitled to the whole of the personal estate.

NOTE. This is Section 10 of the Act of 1833, 2 Purd. 2001, substituting
"surviving spouse" for "widow or surviving husband," and omitting the
description of the estate, which is superfluous in view of Section 18 of the
new act.

Section 10 of the Act of 1833 was copied from the Act of January 21,
1819, P. L,. 25 (7 Sm. L. 142.)

Neither the Act of April 19, 1794, 3 Sm. I/. 143, nor the Act of April 4,
J 797, 3 Sm. L,. 296, contained any provision on this subject, nor did any
such provision appear prior to the Act of 1819.

341. PROCEDURE.

(&) If any person shall die, or has died intestate, leaving a sur-
viving spouse and no known heirs or kindred, such surviving
spouse, his or her heirs or legal representatives, may, at any time
16



242 INTESTATE ACT SECTION 17 (&)

after the expiration of one year from the death of such intestate,
and after final settlement of the administration accounts of such
intestate, present a petition to the orphans' court of the county
wherein any real estate of such intestate may lie, or, in the case
of personal estate, to the orphans' court having jurisdiction of
said administration accounts, setting forth that the said intestate
died leaving no known heirs or kindred and seized or possessed
of real or personal estate, which by virtue of this act, vested in
such surviving spouse. Such petition shall be verified by the
oath or affirmation of the party petitioning, or of some other
person knowing the facts.

Upon the presentation of said petition, the said court shall
grant a citation to all the heirs or other persons interested or
claiming any interest in said estate, to appear in said court at
some time certain and show cause why a decree should not be
made, ordering and directing, in the case of real estate, that the
title thereto be adjudged to be in such surviving spouse, his or
her heirs, or, in the case of personal estate, that the administrator
or administrators of the estate of said intestate shall pay over to
such surviving spouse, his or her legal representatives, the balance
of such intestate's estate in his or their hands. Notice of such
citation shall be published for such length of time and in such
manner as the court in its discretion shall think proper.

If, upon the return of the citation and due proof of publica-
tion thereof, agreeably to the order of the court, no heirs or
kindred claiming said estate shall appear, nor any good cause
be shown to the contrary, the court shall order and decree as
aforesaid, and, in the case of real estate, a certified copy of such
decree shall be recorded in the office of the recorder of deeds of
the county where said real estate shall lie, in the deed book,
and shall be indexed by the recorder in the grantors' index under
the name of the decedent, and in the grantees' index under the
name of the surviving spouse, and shall be registered in the
survey bureau, or with the proper authorities empowered to keep
a register of real estate, if any there be, in said county. The
charges for recording and registering shall be the same as are
provided by law for similar services. The record of such decree
shall be deemed and held to be prima facie proof of the facts
therein set forth with like force and effect as the record of a deed ;
and if, upon the return of any such citation, any person or per-
sons shall appear in court claiming to be heirs or kindred of



INTESTATE ACT SECTION 17 (b)-iB 243

such intestate, whose rights to the said estate shall be disputed
by such surviving spouse, his or her heirs or legal representatives,
then the court may direct an issue to determine the matter, or
may make such order therein as they shall think proper.

In all cases the decree of such court entered upon the failure
of any heirs or kindred to appear, or after the trial of such an
issue, or otherwise, shall not be subject to be reopened by said
court after the expiration of six months from the date of its
entry, except as hereinafter provided. Any such cause may be
removed by appeal to the supreme court or superior court, in
the same manner as appeals are now taken by law in cases
determined in the orphans' court or tried by jury upon issues
directed by that court. Where the record in such cause is thus
removed to an appellate court, the six months' period within
which the decree is subject to be reopened by the orphans' court
shall cease to run until the return of the record from the
appellate court.

NOTE. This is Section I of the Act of April 6, 1833, P. L. 207, 2 Purd.
2001-2, modified so as to include the procedure in cases of real estate in
the same or other counties and by adding provisions for recording and
as to the conclusiveness of the decree.

The provision as to recording is copied from the Act of June 20,
1883, P. L. 131, 2 Purd. 2004, providing a procedure whereby any person
taking lands under the intestate laws may show on the records of the
orphans' court and the recorder of deeds his interest in such lands. The
Commissioners recommend the repeal of the Act of 1883 as unnecessary
or ineffective.

The Act of April 6, 1833, does not seem to have been drafted by the
Commissioners to Revise the Civil Code, and no previous act containing
similar provisions has been found.

342. ESTATES PASSING TO PERSONS ENTITLED
UNDER THE ACT,

SECTION 1 8. The real estate of such intestate shall be vested in
the person or persons entitled thereto under the provisions of
this act for such estate as the intestate had therein, and such
person or persons shall be entitled to the personal estate abso-
lutely.

NOTE. This is a new section, introduced in order to avoid the necessity
of repeating the description of the estates to be taken under the various
preceding sections.

By the provisions of the Intestate Act of 1917, joint owners, in fee, as
tenants in common of real estate may have partition in equity of the



244 INTESTATE ACT SECTIONS 18-19

estate so held, upon the death of one cotenant. Maurer v. Straub, 16
Sch. 174.
See Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833.

343. PERSONS IN THE SAME DEGREE OF CON-
SANGUINITY TAKE EQUALLY.

SECTION 19. Wherever real or personal estate shall descend to
or be distributed among several persons, whether lineal or col-
lateral heirs or kindred, standing in the same degree of con-
sanguinity 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, shall hold the same as tenants in common.

NOTE. This is Section 14 of the Act of 1833, 2 Purd. 2002, omitting
after "wherever," the words "by the provisions of this act, it is directed."
Section i of the Act of June 30, 1885, P. L. 251, 2 Purd. 2002, making the
same provision, was passed in consequence of the decision in Hayes' Appeal,
89 Pa. 256, that the children of deceased uncles and aunts, taking by
representation under Section 2 of the Act of April 27, 1855, P. L. 368,
2 Purd. 1999, were not within the scope of Section 14 of the Act of 1833,
and took per stirpes and not per capita, although no uncles or aunts
survived.

Since Section 2 of the Act of 1855 is embodied in Section n of the new
act (see 323 supra) the provisions of the new Section 19 clearly include
first cousins.

There seems to have been no similar provision in the acts previous to
1833-

Where decedent died intestate leaving as next of kin first cousins, it
was not error to distribute the estate in equal shares as this is clearly the
intent of the Intestate Act of 1917, which reenacts prior statutes providing
for distribution where the beneficiaries are of the same degree of con-
sanguinity. Wightman's Est., 49 Pa. C. C. 614; 30 Dist. 885, 68 P. L. J.
833 (see 323 supra).

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,



INTESTATE ACT SECTION 19-29-21 245

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 Sec-
tion ii. Brodie's Est., 30 Dist. 654.

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

344. POSTHUMOUS CHILDREN.

SECTION 20. Descendants and relatives of an intestate, begot-
ten before the death of the intestate and born thereafter, shall in
all cases inherit and take in like manner as if they had been
born in the lifetime of such intestate.

NOTE. This is Section 13 of the Act of 1833, 2 Purd. 2002, which was
founded on Section 10 of the Act of April 19, 1794, 3 Sm. L. 143. That
section provided : "That all posthumous children shall, in all cases what-
soever, inherit in like manner, as if they were born in the lifetime of their
respective fathers."

345. LIMITATION OF CLAIMS.

SECTION 21. All relatives and persons concerned in the estate
of any intestate who shall not lay legal claim to their respective
shares of the personal estate within seven years of the decease
of the intestate, shall be debarred from the same forever:
Provided, That if any such relative or person shall, at the time
of the decease of the intestate, be within the age of twenty-one
years, he or she shall be entitled to receive and recover the same,
if he or she shall lay legal claim thereto within seven years after
coming to full age.

NOTE. This is Section 19 of the Act of 1833, 2 Purd. 2003, with the
insertion of the words "of the personal estate" in accordance with the
decisions cited in the note to Purdon, and the omission of the saving as to
married women.

Section 19 of the Act of 1833 was founded on Section 18 of the Act
of April 19, 1794, 3 Sm. L. 143, the revisers omitting the saving of per-
sons non compos mentis, in prison or out of the United States.

The Act of 1684 (i72nd Law) imposed a limitation of three years. The
Act of 1693 (3 Sm. L. 154 n.) provided the same limitation. The Act of
1700 (3 Sm. L. 155 n.) made the limitation seven years. Section 5 of
the Act of 1705 (3 Sm. L. 157 n.) read: "That all such of the intestate's
relations, and persons concerned, who shall not lay legal claim to their
respective shares, within seven years after the decease of the intestate,
shall be debarred from the same forever."



246



INTESTATE ACT SECTIONS 22-23



346. ADVANCEMENTS.

SECTION 22. If any person, other than a surviving spouse,
entitled under the provisions of this act to inherit or take real
or personal property from such intestate, shall have any estate
by settlement of such intestate, or shall have been advanced by
him in his lifetime, either in real or personal estate, the amount
of such settlement or advancement shall be charged against the
share of the person who shall have received it, so that the total
amount received by him, including the amount of such settlement
or advancement, shall not exceed the amount received by each of
the other persons who are equally entitled under the provisions
of this act to inherit or take from said intestate.

NOTE. This is founded on Section 16 of the Act of 1833, 2 Purd.
2002, which contained in substance the provisions of Section 9 of the Act
of April 19, 1794, 3 Sm. L. 143, the changes now made being for the
purpose of including all persons entitled under the act and simplifying the
language.

Section 2 of the Act of 1705 (3 Sm. L. 156 n.) contained a provision
similar to that of the Act of 1794.

The Act of March 13, 1815, P. L. 173 (6 Sm. L. 298), provided for the
appointment of three auditors to settle the amount of advancements where
some of the heirs resided out of the state, and for the procedure by the
auditors. It is stated in a note in Pepper and Lewis' Digest of Laws that
this act was supplied by Section 20 of the Act of March 29, 1832, P. L.I9O.
The Act of 1815 does not appear in Stew. Purd. It is now recommended
for repeal.




347-



PERSON ADJUDGED GUILTY OF MURDER NOT
TO INHERIT FROM MURDERED PERSON.



SECTION 23. No person who shall be finally adjudged guilty,
efther as principal or accessory, of murder of the first or second
degree, shall be entitled to inherit or take any part of the real
or personal estate of the person killed, as surviving spouse, heir
or next of kin to such person under the provisions of this act.

NOTE. This is a new section framed to meet the situation presented in
Carpenter's Estate, 170 Pa. 203. In that case, a son killed his father, was
convicted of murder and was executed therefor. Jlis mother, the widow
of the intestate, was convicted as an accessory after the fact and duly
sentenced. The motive of the crime was to get possession of the estate
of the decedent, and the supreme court was constrained to hold that the
criminals had not forfeited their rights under the intestate law.

This decision, although criticized on equitable grounds : 36 American
Law Register N. S. 225 ; 64 University of Pennsylvania Law Review
307, is nevertheless in accordance with the weight of authority: see In Re



INTESTATE ACT SECTIONS 23-24-25 247



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 26 of 71)