The rule is sanctioned by no American writer upon the law of descents. Judge Reeve, Reeve, Des., p. 74, Int., speaking of distributees, says: "I am of opinion that such posthumous children who were born at the time of the distribution were entitled, and none others.''
It is to be regretted that we have not the benefit of an adjudica tion by the Supreme Court of Illinois upon the subject.
Their interpretation - the statute being a local one - would of course be followed in this court. We have, however, no doubt of soundness of the conclusion we have reached.
We find no error in the record, and the judgment of the Circuit a court is affirmed.
4 Dallas (Pa.), 64. - 1799.
In error from the Supreme Court.
The question arose upon the following facts, which, by agreement, were to be considered as if found by a special verdict.
"Ejectment for a house and lot in Germantown, of which Rebecca Vanaken died seised on the 13th of February, 1797, intestate, and leaving no father, mother, child, grandchild, brother, or sister, living.
" But the intestate had had brothers and sisters, who died under these circumstances:
"1st. Richard, who died without issue.
"2d. Catharine, who married Casper Wistar, and left issue, Richard, Margaret, Catharine, Rebecca, Sarah, and Casper; of this family Richard, Margaret and Rebecca are dead; but all of them leaving issue.
" 3d. Anne, who married------Lukens, and left issue John, Mary,
Daniel, Derrick and Rebecca; all of this family died in the life of the intestate, but all of them left issue.
" 4th. John, who died in the lifetime of the intestate, but left issue Anthony (the plaintiff in error), John Joseph, and Margaret, and Margaret also died in the intestate's lifetime, leaving issue.
"5th. Margaret, who intermarried with Reuben Haines, and left issue Casper (the lessor of the plaintiff below), Catharine, Josiah, and Reuben; Josiah is dead, leaving one son, who is now alive, and Reuben is dead without issue.
"It was agreed that Margaret, the daughter of Catharine, who was the sister of Rebecca, died in the lifetime of the intestate.
"And the questions submitted to the court are, whether the plaintiff in error is entitled to the whole of the premises? And, if he is not, how the premises are to be divided?"
M'Kean, C. J. - The intestate died, leaving the children of several of her brothers and sisters, and a grandchild of one of her brothers; and it is now made a question, whether her real estate shall be divided among these surviving relations, or descend entirely to her heir-at-law? By the sixth section of the charter granted to William Penn, the laws of England " for regulating and governing of property, as well for the descent and enjoyment of land as for the enjoyment and succession of goods and chatties," were introduced and established in Pennsylvania, to continue till they were altered by the Legislature of the province. The common law being, therefore, the original guide, and the plaintiff in error being the heir at common law, his title must prevail, unless it shall appear, that an alteration in the rule has been made by some act of the General Assembly.
Now, when the intestate died, there was but one law in existence on the subject, the law of the 19th of April, 1794; and though the sixth section of that law provides for the case of a person dying intestate, leaving "neither widow nor lawful issue, but leaving a father, brothers, and sisters," it does not provide, nor does any other of the sections provide, for the case of a person dying intestate, without lawful issue, and leaving no father or mother, brothers or sisters. The descent of the real estate, in this specific case, was not, therefore, altered or regulated by any act of the General Assembly, when the estate was vested in the person entitled to take, at the death of the intestate.
It is probable, that if the case had been stated to the Legislature, they would have directed the same distribution in the year 1794, that they have since done by the act of the year 1797; and, it is urged, that as there is equal reason for making such a distribution, where no father survives, as where a father does survive, the intestate, the court ought, upon the obvious principle and policy of the law, to supply the deficiency. But, it must be remembered, that the system of distributing real estates in cases of intestacy, is an encroachment on the common law; and wherever such an encroachment takes away a right which would otherwise be vested in the heir-at-law, the operation of the statute should not be extended further, than it is carried by the very words of the Legislature.
We are upon the whole, unanimously, of opinion, that the judgment below should be reversed; and that judgment should be given for the plaintiff in error.
8 Gray (Mass.), 86. - 1857.
Bill in equity by the infant children of Frederic R. and Mary Ann Sears, his deceased wife, against the trustees under the will of her father and the other heirs of said testator to establish their right to certain real and personal property of testator.
Bigelow, J. - * * * We are thus brought to a consideration of the nature and quality of the estate which the plaintiffs will take under the conveyance to be made to them by the trustees. There would have been no room for doubt or question on this point, if the will had contained no provision beyond the direction to the trustees to convey the estates to the testator's grandchildren, if living, or to their issue, or in default of such children or issue, to the heirs-at-law of the testator. The plaintiffs would then very clearly have been entitled to an estate in fee simple.
If the devise had been to the children of the daughter and their heirs forever, but, if they had died without issue, then to the heirs-at-law of the testator, it would have created an estate-tail by implication. The gift over would then have been on an indefinite failure of issue, and the law, implying an intent in the testator that the issue were to take the estate in succession, as children and heirs of the parent, would cut down the fee to an estate-tail. Nightingale v. Burrell, 15 Pick. 104; Hall v. Priest, 6 Gray, 18.