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.
There had not been any opinion delivered in this case by the Judges of the Supreme Court; but judgment was entered, by consent of the parties, to expedite the decision of the Court of dernier resort.
"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, grand-child, 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 life time of the intestate, but left issue Anthony ( the plaintiff in error) John, Joseph and Margaret, and Margaret also died in the intestate's life time 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 life time 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?"
The unanimous opinion of the COURT was delivered, to the following effect, by the Chief Justice, in the absence of CHEW,President. M`KEAN, Chief Justice.
The intestate died, leaving the children of several of her brothers and sisters, and a grand-child 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 lands, as for the enjoyment "and succession of goods and chattles," 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.