the real estate shall go to, and be vested in the father or mother of the intestate; or if both be living at the time of his death, in the father and mother, for such - estate as the intestate had therein. Section VI. In default of issue, and brothers and sisters of the whole blood, and their descendants, and also of father and mother, competent by this act, to take an estate of inheritance therein, the real estate of such intestate, subject to the life estates hereinbefore given, if any, shall descend to, and be vested in the brothers and sisters of the half blood of the intestate and their issue, in like manner respectively, as is hereinbefore provided, for the cases of brothers and sisters of the whole blood, and their issue. Section VII. In default of all persons hereinbefore described, the real and personal estate of the intestate shall descend to, and be distributed among the next of kin to such intestate. Section IX. Provided, also, that no person, who is not of the blood of the ancestor or other relation, from whom any real estate descended, or by whom it was given, or devised to the intestate, shall, in any case before memtioned, take any estate of inheritance therein; but such real estate, subject to such life estates as may be in existence by virtue of this act, shall pass to, and vest in such other persons, as would be entitled by this act, if the persons not of the blood of such ancestor, or other relation, had never existed, or were dead at the decease of the intestate. Section X. In default of known heirs or kindred, competent as aforesaid, the real estate of such intestate shall be vested in his widow, or if such intestate were a married woman, in her surviving husband, for such estate as the intestate had therein; and, in such case, the widow shall be entitled to the whole of the personal estate absolutely. Section XI. And whereas, it is the true intent and meaning of this act, that the heir at common law shall not take in any case, to the exclusion of other heirs and kindred, standing in the same degree of consanguinity with him to the intestate, it is hereby declared, that in every case which may arise, not expressly provided for by this act, the real, as well as the personal estate of an intestate, shall pass to, and be enjoyed by the next of kin of such intestate, without regard to the ancestor or other relation, from whom such estate may have come. Section XII. In default of such known heirs or kindred, widow or surviving husband, as aforesaid, the real and personal estate of such intestate, shall go to, and be vested in the commonwealth by escheat. intestate shall be allotted to such child as shall make the h estate of all the said children to be equal, as near as can be estimated. Section XVII. The provisions of this act relative to the descent and distribution of real and personal estate among the descendants and collateral relations of an intestate, shall be construed to mean such persons only as may have been born in lawful wedlock. Section XVIII. The residue of the proceeds of the sale of any real estate of an intestate, made by authorityof law for the payment of debts, shall vest in the persons entitled by this act to such real estate, in such proportions, and for the like interests, respectively, as they may have had in such real estate. Section XIX. 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. Provided, That if any such relation or person shall, at the time of the decease of the intestate, be within the age of twenty-one years, or a married woman, 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 or discoverature. Section XX. Nothing in this act contained, relative to the distribution of personal estate among kindred, shall be construed to extend to the personal estate of an intestate, whose domicil at the time of his death was out of this commonwealth. REMARKS ON THE INTESTATE'S BILL. * ' The distribution of the property of an intestate by certain and equitable rules, is one of the subjects of legislation most important for the peace and order of society. The injustice of the English common law, which gave the whole real estate to the eldest son, was so obvious to our ancestors, that one of the earliest acts of provincial legislation, had for its object to effect a more general distribution among the children. Various acts were subsequently passed with the same view, but still of a somewhat partial and limited nature until the act of 1794, the declared design of which was to establish a system of descents upon the basis of per-' fect equality among all the relations of an intestate in the same degree of consanguinity to him. Besides certain provisions relating to the duties and liabilities of administrators in respect to creditors, which we have transferred to the bill relating to executors and administrators, the act of 1794 contained a series of sections Section XIII. Descendants and relatives of an intes-regulating the transmission of real and personal estate, tate, begotten before his death, 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. Section XIV. Wherever by the provisions of this act, it is directed that real or personal estates shall descend to or 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 be more than one, they shall take in equal shares, and if real estate, shall hold the same as tenants in common. Section XV. The share of the estate directed by this act to be allotted to the widow, shall be in lieu and full satisfaction of her dower at common law. Section XVI. If any child of an 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, to an amount or valué equal to the share which shall be allotted to each of the other children of such intestate, such child shall have no share of the real and personal estate of such intestate; and if such settlement or advancement be to an amount or value less than the share to which he would otherwise be entitled if no such advancement had been made, then so much only of the real and personal estate of such among the kindred of an intestate, which were probably supposed to be sufficient for all cases that could arise. Very soon after the passage of the act, however, cases occurred which had not been expressly provided for, and on the question being brought before the supreme court it was determined by that tribunal that, as the common law was the basis of our jurisprudence, its rules were paramount, wherever they were not expressly abrogated by the legislature, consequently that in every omitted case the heir at common law took the estate. This led to the act of 1797, which in another series of sections, attempted to reach every supposable event, by the enumeration of particulars, without however providing by any general rule for omitted cases, of which some have occurred since the passage of this act. The acts then, of 1794 and 1797, contain our scheme or system of descent and distribution, and have received more praise for their intention, than for the manner in which the details are exhibited and declared. Instead of a classification of subjects or an arrangement of them, according to some obvious and familiar rule, such as that of nearness of kindred, by which frequent repetition would be saved, the acts of assembly endeavor to accomplish the effect by a constant specification of cases. The result of this is a great expense of time and labor in arriving at the true meaning of the legisla 1 ture, and, sometimes perplexity and doubt which lead to frequent litigation. In the bill now submitted we have, besides consolidating all the provisions to be found in the acts of 1794 and 1797, endeavoured so to arrange both the phraseology and order of the sections as to make the system obvious at once to the understanding, and by discarding redundancies and repetitions to reduce the volume of the bill and simplify its provisions. Our plan was to specify the estates and interests to be given in the order of preference, appropriating a section to each class of persons with the necessary and appropriate subdivi$ sions. The order or arrangement will be seen from the f following analysis: the father and mother. This is copied from the 6th section of the act of 1794, and the 5th section of the act of 1797. Section VI. The sixth section provides for the transmission of the real estate to brothers and sisters of the half blood, in the event of their being no persons to take as enumerated in the preceding sections. This is copied from the 11th section of the act of 1794, and the 7th section of the act of 1794, and the 7th section of the act of 1797. Section VII. The seventh section directs, that in default of all persons previously mentioned, the real and personal estate shall go to the next of kin. This section is derived from the 12th section of the act of 1794. Section 1. The first section which is divided into Section VIII. In the eighth section, we have restored three articles or paragraphs, is intended to provide for to our law a provision which formed a part of the act of the widow and surviving husband, as the case be, of an 1705, and continued to govern the distribution of esintestate, and is derived from the 3d and 4th sections of tates until the passage of the act of 1794, from which the act of 1794, and from the 5th section of the act of it was omitted; but whether through inadvertence or by 1797, there being no other substantial alteration, than design, we have not the means of ascertaining. We inin the last clause, which gives to the surviving huband an cline to attribute the omission to the former cause, since estate for life in the real property of the wife, although the rule is of great antiquity, and seems to be imperathere should be no issue of the marriage. It appears to tively required by considerations of convenience almost us that the existing rule which makes the estate amounting to necessity. The Justinian code and the of the husband dependent upon the circumstance of English statute of distributions, (22 and 23 Charles 2d, there being issue born alive capable of inheriting, has chap. 10.) contain the provision in the same words; and in the present state of society and government, no suffi- it is believed to exist in most if not all of the laws of cient or reasonable foundation. Derived, according to this Union. The doctrine of representation, or that the better opinion, from the feudal system, and receiv- rule by virtue of which the descendants of a deceased ing no support from analogies in our own or other codes relation, to the most remote degree, are permitted to of jurisprudence, it ought, we think, long since to have stand in the place of their ancestor, and to receive his shared the fate of similar provisions of that system. Be-share of an estate, if there be others of the same degree sides assimilating the estate of the husband to that of of such deceased relation living, may be admitted withthe wife, in this respect, the proposed alteration will out great inconvenience in the case of lineal descend} have the effect of lessening the amount of litigation by ants: but when it is applied to collateral kindred, it is removing questions which have sometimes occurred productive of serious evils. Thus, if one dies leaving respecting the birth of issue and the fact of its having child, these grand-children, by the rule of representachildren and grand-children, the issue of a deceased parent and to take the share of such parent; and the tion, are allowed to stand in the place of their deceased same principle admits great grand-children, and even more remote descendants, to personate their deceased ancestors without, as already stated, any inconvenience. Where, however, one dies leaving no lineal descendants, but collateral kindred, as brothers and sisters and their descendants, or uncles and aunts and their descendants, it is obvious that the doctrine of representation, by raising remote descendants to the level of any one of the brothers or sisters or uncles or aunts, who happened to be living, and consequently by requiring search to be made for such descendants, who are often scattered over a large part of our country, produces great delay and often great hardships. The extension of the rule beyond the boundaries provided in the codes * been born alive. Section II. The second section provides for the lineal descendants of an intestate, whether children, grand children, or others. It is divided into four articles, which are derived from the 2d and 4th sections of the act of 1794, without any alteration in matter or substance. Section III. In the 3d section we have incorporated the provisions of the 5th and 7th sections of the act of 11794, respecting the father and mother of an intestate, with this alteration, that in the event of both father and mother surviving the intestate, the estate shall be enjoyed by them during their joint lives, and by the survivor of them: By the present law, in the case put, it is believed that, on the death of the father, the estate would pass to collateral relations, leaving the mother perhaps destitute; a state of things which we are satis fied was not within the contemplation of the Legisla-of foreign countries and of our own union, has been fre ར་ ture. Section IV. The fourth section provides for the case of brothers and sisters and their descendants, and is derived from the 6th and 8th sections of the act of 1794, and the 5th and 7th section of the act of 1797. The only alteration of the present law will be found in the 2d article, which gives to nephews and nieces, where such only are living, an equal share of the estate, instead of dividing the estates among them, as at present, according to the stocks. Thus, if an intestate dies without nearer relations, than the children of his deceased brothers, they will not take equally under the existing law; but the children of one brother will take one share between them, the children of the next brother another share, and so on, thus producing sometimes great, and we think unnecessary inequality. The rule is different with respect to grand-children, and it appears to us desirable that the law should be uniform and harmonious in this, as well as in other respects. Section V. The fifth section declares, that in default of brothers and sisters of the whole blood and their descendants, the real estate shall go absolutely to quently lamented by our most eminent judges and professional persons. Considering that the present system leads to a great increase and delay of litigation, the restoration of the old rule is submitted to the legislature as a measure of wisdom and prudence. Section IX. In the ninth section we have introduced as a general provision, a limitation of the course of descent of real estate, which is annexed to several sections of the present law, viz: the fifth, sixth, seventh and eleventh sections of the act of 1794, and the fifth and seventh sections of the act of 1797, confining the provision, however, to the case of real estate for which it seems to us most appropriate. Section X. The tenth section is copied from the act of January 21, 1819, and gives the whole estate to a surviving husband or wife in the event of their being no known heirs or kindred competent to take. Section XI. In the eleventh section we have endeavored to lay down a rule which shall forever and in all cases prevent the real estate of a decedent going to the heir at common law to the exclusion of others in the same degree of consanguinity. We have already stated, that in every case, not expressly provided for in the acts of 1794 and 1797, the doctrines of the common law are held to govern, for want of some broad and comprehensive rule. We think that the one now suggested will leave no doubt on the subject and carry out into the remotest quarter the design of the legislature. The provision that the next of kin shall take in every case not enumerated, will we believe sufficiently indentify the party, as the mode of computing kindred, by the rules, namely of the civil law, is well understood and established. Section XII. In the twelfth section we have for the purpose of completing the system, introduced the provision in the act of 1787, declaring the event upon which the commonwealth is to take by escheat. Section XIII. The thirteenth section contains the provision of the tenth section of the act of 1794, somewhat enlarged-the object being to confer on the posthumous descendants and relations of all descriptions, begotten in the life time of the intestate, the same rights which the act of 1794 gave to posthumous children. Section XIV. The fourteenth section contains a general rule providing for the case of an individual, if there be only one person in the nearest degree to the intestate, and also directing the manner in which real estate shall be held and enjoyed where it is distributed among several. This section was adopted to save the necessity of repeating the same or similar expressions at the close of several sections, in the manner pursued in the act of 1794. Section XV. The fifteenth section is copied literally from the thirteenth section of the act of 1794. Section XVI. The sixteenth section contains in substance the provisions of the ninth section of the act of 1794. Section XVII. In the seventeenth section we have provided a general rule, to save the necessity of repeating in every section the phraseology necessary to indicate that none but persons born in lawful wedlock are competent to take. We believe that the proviso will be found sufficient; comprehensive and distinct. It will be perceived that it is not intended to include the case of ancestors or of husband and wife, to whom the governing reasons for excluding illegitimates do not apply. Section XVIII. The eighteenth section provides that the proceeds of real estate sold by authority of law for the payment of debts, shall still be considered as real estate, so far as regards the persons entitled to receive it and the extent of their interests. The provision is in conformity with the twentieth section of the act of 1794 and with the decision of the supreme court in the case of Grider vs. McClay, (11 S. and R. 224. Section XIX. The nineteenth section contains the limitation existing in the 18th section of the act of 1794. The proviso annexed omits however the cases of "a person non compos mentis, in prison, or out of the United States." We conceive it to be the interest of the community to reduce the number of exceptions to all acts of limitation, which have been justly described as acts of peace and harmony for society, and we submit that the particular cases omitted, ought not to stand in the way of the beneficial rule. In the case of persons of unsound mind, if the exception is continued, estates may remain unsettled for the term of perhaps a long life; and, where there is an interest in property, such persons will in all probability, have committees sufficiently attentive to lay claim to their shares in due season. The case of a person "in prison," may have been worthy of exception in former ages when prisons were on a different footing and often contained inmates of a dif ferent description from what the humanity of this age and country admits; but the reason no longer exists, and it appears to us that there is nothing in the character or condition of the present tenants of our prisons to require a departure for their benefit from the salutary rules applied to other classes of the community. Nor do we think that foreigners are entitled to a continuance of the exclusive privileges which have been heretofore granted to them. In the present condition of things, when intercourse between even the most remote parts of the earth, is so frequent and rapid, the term of seven years is surely long enough to give every foreigner an opportunity of laying claim to whatever property he may consider himself entitled;-and we cannot bring ourselves to think that there is any hardship in placing him on a footing in this respect, with our own fellow citizens. Should the legislature approve of the alterations in the present instance, it is our intention to carry them through the several acts of limitation. Section XX. The proviso in the last section in this act, like that at the end of the act relating to wills, merely confirms the existing doctrines of the law, and has been added for the purpose of preventing any misconstruction of the general expressions used in the preceding sections. It will be perceived that it applies only to the case of the distribution of personal estate among kindred. The question of the divison of the assets of an estate under such circumstances among creditors, belongs to another bill. THE REGISTER. PHILADELPHIA, AUGUST 4, 1832. We were in hopes, from the almost total exemption of our city and suburbs, from the visitation of the cholera, for so long a season, that we should not have to record any other cases than those noticed in a former number. But from the 27th of July, to the present time, the number of cases has been gradually increasing. With but few exceptions, they have been confined to the most filthy and crowded portions of the districts, and to a class of the population, whose habits of intemperance, and bad living, have seemed to mark them, wherever the disease has occurred, as the fittest subjects for its attack. In the present number, we have given a table of the several cases which have appeared, and as far as practicable, their localities, &c. It is our intention, to continue this weekly summary, derived from the records of the Board of Health. As the reports of the physicians have hitherto not been made in any prescribed form, in some cases, some desirable particulars are sometimes omitted, but as the Board have now furnished a regular form, in which reports are to be made, we hope hereafter to render a more complete and uniform statement. The number of cases of every description reported up to yesterday, is about, 152. The report from the first to the second, shows the number forty; being an apparently large increase, on the report of the preceding day; but when it is noticed, that eighteen of these were from the Arch street prison and Alms-house, it will appear, that there was actually no great increase in the city and suburbs over the report of the 31st and 1st, and on the 3d still less. HISTORICAL SOCIETY OF PENNSYLVANIA. A quarterly meeting of the Historical Society of Pennsylvania, will be held at the Philosophical Hall, over the Athenæum, on Monday evening the 16th instant, at 8 o'clock. Attendance is particularly requested. J. R. TYSON, Secretary. |