
    Harris and another administrators of James Harris against Hayes and another administrators of Robert Harris.
    
      Lancaster, Saturday, May 28.
    
      JL being seized of real and personal estate which had come to him from his deceased father, dies intestate without issue, leaving a mother and brothers and sisters of the •whole blood.
    
      Held, that the estate is to go to the brothers and sisters, as if the mother were dead.
    It must be perfectly clear that an arbitration has been entered into under the act of Slst March 1806, or this Court will not reverse the proceeding, because the provisions of that act have notheen complied with.
    in error.
    THIS was an amicable action on tbe case in the Common Pleas of Dauphin, by the administrators of Robert Harris the plaintiffs below, against the administrators of James Harris. In February 1812, by agreement of attornies in open court, all matters in variance between the parties in the cause were referred to three persons, or any two of them, ex parte on ten days notice. On the 29th January 1813, the referees made a report in favour of the plaintiffs, which was filed on the 2d February following, read, and judgment Nisi. On the (5th February the defendants filed exceptions, which the Court afterwards overruled, and the defendants took this writ of error. With the record came up the depositions of the referees, that the reference was admitted before them to be a reference at common law, and therefore they were not sworn.
    The case below, so far as it is material, was thus: James Harris the defendants’ intestate, died seized and possessed of real and personal estate, leaving a widow and eight children. Laird Harris the oldest son, died after him, and after April 1797, of full age, intestate and without issue, leaving a mother and seven brothers and sisters. The administrators of Robert Harris one of the brothers, claimed one seventh of two thirds of the estate of James Harris, upon the ground that all Laird Harris's proportion went to the surviving brothers and sisters as if his mother were dead; and the defendants resisted it upon the ground that this was a casus omissus in the intestate law. The referees reported in favour of the plaintiffs’ claim, and the only material exception related to this point of law.
    In this Court several errors were assigned, but only two pressed. 1. That the arbitration had taken place under the act of 21st March 1806, by the third section of which the plaintiffs were bound to serve a copy of the award upon the defendants within ten days after the expiration of the term at which the report had been, filed; and that this had not been done. 2. That the present case was not provided for by any act of assembly, and therefore of Laird Harris’s part of his father’s personal estate, his mother took a portion, or the whole.
    
      Laird argued for the plaintiffs in error.
    
      Elder contra.
   Tilghman C. J.

This is an amicable action entered on the docket by consent, and submitted to .arbitrators. Many exceptions have been taken to the proceedings of the court below, all of which have been abandoned but two. 1st. That the judgment was not in conformity to the,,act of 21st March 1806, under which the defendants contend the suit was arbitrated. 2d. That the Court erred in their opinion as to the share to which James Harris was entitled, of the real and personal estate of Robert Harris deceased.

1. As to the first error assigned, it appears to me on a careful inspection of the record, that the arbitration was not under the act of 21st of March 1806, but the old act of Í705, which remained unrepealed. From the words of the submission the case might fall under the provision ,of either of thes.e acts; but the defendant having filed exceptions to the award within four days from the commencement of the term to which it was returned, it would seem that the proceedings were understood by the parties to be under the act of 170S. At all .events it is by no means clear, that they were not under that act, which it ought to be before the Court would reverse the judgment for that cause, because it is an objection which does not go to the merits of the cause. I am therefore of opinion that there is no error in this part of the record.

2. On the second point the case stands thus. A man of full age, entitled to real and personal estate, all of which came to him from his deceased father, dies intestate and without issue, leaving a mother and brothers and sisters of the whole blood. The plaintiffs contend that his estate shall 'be equally divided between the brothers and sisters in exclusion of the mother. The defendants say that it is a casus omissus, unprovided for by any act of. assembly. It will depend on the construction of the .acts of 19th April 1794, section 7, ~ and of 4th April 1797, section 5. By the act of April 1794, it is provided that in case a person shall die seized or possessed of real or personal estate which came to him from the part of his father, leaving no widow, nor lawful issue, nor father, but a mother, the said estate shall descend, pass, and be enjoyed or possessed, as if such person had survived his mother. In such case then it was the clear intent to exclude the mother from any share of her child’s property; and the reason was that she had already been sufficiently provided for from her husband’s estate. But it is argued, that although the mother be excluded, yet it is not said who shall take, because the case put in the act does not suppose that the intestate left brothers or sisters. Granting for argument’s sake this to be the case^.we must consider the, act of 1797, which was made for the express purpose of providing for the omissions of the act of 1794. By the 5th section of the act of 1797, “ When any person shall die “ seized or possessed of real or personal estate, leaving neiu ther widow nor lawful issue, father or mother, but bro-u thers and sisters of the whole blood, the estate shall “ descend to and be vested in such brothers or sisters as te- “ nants in common in equal pails.” Now the mother being considered as dead by the act of 1794, fhe case falls directly within the act of 1797. The Court below was right therefore in adjudging that the estate was to be equally divided between the brothers and sisters in exclusion of the mother. I am of opinion upon the whole that the judgment should be affirmed.

Yea tes J.

The plaintiffs in error have insisted, that it does not appear they were duly notified of the award of the referees according to the provisions of the Arbitration act of 31st March 1806; to which it is properly answered, that the terms of the submission equally apply to the old Defalcation act of 1705, and pursue the usual forms under that law. At best it is equivocal, but the conduct of the plaintiffs in error removes all doubt upon that question. The depositions of the referees taken in open court, which have come up with the record, prove that it was admitted before them to lie a reference at common law, and on this ground they were not sworn. Besides, the plaintiffs’ counsel have treated it as a reference under the defalcation act; they have filed their exceptions within the four days, and argued them before the Court. Upon this point therefore they cannot now prevail.

But a more serious objection has been urged, that it appears by the statement below, that the now defendants claimed a sum to which they were. not entitled; viz. one-seventh of two-third parts of the personal estate of James Harris senior deceased, and the like proportion of the rents and profits of his lands after his death; and this necessarily leads to a consideration of the law on that subject. Laird Harris the eldest son, died after 1797, and after his father, of full age, intestate, unmarried, and without issue, leaving a mother and seven brothers and sisters; and the question comes to this, whether his mother is entitled to any part of his real or personal estate derived under his father.

Under the English statute of distributions of 22d and 23d Car. 2. c. 10, and before the statute of 1 Jac. 2. c. 17, a child dying intestate, without wife, children or father, the mother took the whole personal estate in exclusion of the brothers and sisters. 1 Wms. 48., 1 Salk. 251. This was altered by statute, 1 Jac. 2. c. 17, and the resolutions under it have been, that where a child has died intestate, without issue, leaving no father, but a mothei', wife and brother, the wife took half of the personal estate, and the remainder was-divided amongst the brothers and mother; and this too notwithstanding the statute says, dying intestate without wife or children. 2 Wms. 344., 1 Stra. 710., Gilb. Equ. Rep. 190., 1 Atk. 457. This statute not extending to Pennsylvania, a provision of the like nature was made by the act of assembly, 22 Geo. 2., passed February 4th 1748, 9, as to the personal ’estate, where such child died in his minority. By a subsequent law of 4 Geo. 3., passed 23d May 1764, the same provision is made, whether the child died of' full age or in his or her minority; but as to his land it goes to his brothers and sisters, provided he dies in his minority, and not ttherzvise. The legislature here went upon the principle, that the brother dying of full age might devise his lands as he thought proper; but in such instance did not think proper to take away the right of the eldest brother, as heir at common law.

I have made these observations to mark the progress of the law on this subject at different periods. But all former acts as to descents are repealed by the 25th section of the act of 19th April 1794. 3 Smith’s Laws 153. The seventh section of that law embraces this case precisely. One dying leaving no widow nor lawful issue, nor father but a mother, the mother shall hold the real estate during life, and the personal estate shall be vested in her absolutely, unless the said real and personal estates, or either of them, came to the person so dying seized or possessed,, from the part of his or her father; in which case the estate shall go as if such person had survived his or her mother. The act excludes the mother in direct terms, under the circumstances of this case, from all participation in either the real or personal property of her son Laird Harris, who died intestate and deriving it under his father James Harris. The policy of this provision was undoubtedly founded on the principle, that where the mother has taken her full thirds of the lands of her husband during life, and of the personal property absolutely, she ought to have no further claims on his estate. The act is silent as to the manner in which the estate shall go, and bars the mother only. This is provided for by section fifth of the act of 4th April 1797, 3 Sm. Laws 298, which directs that it shall descend to and be vested in the brothers and sisters of the whole blood, as tenants in common in equal parts. It is admitted that the said Laird Harris died after the passage of this last act, and it hence follows irresistibly, that the defendants in error as the personal representatives of Robert Harris, supported their claim before the referees, and of course that the second error assigned by the now plaintiff also fails them. I am therefore of opinion, that the judgment of the Court of Common Pleas of Dauphin county be affirmed.

Brackenridge J. concurred.

Judgment affirmed.  