
    * Johnson, Plaintiff in error, v. Haines’s Lessee.
    
      Descent.
    
    In every ease of intestacy, the heir at common law will take the real estate, where its descent is not specifically altered by an act of assembly.
    
    Intestate died on the 13th February 1797, without issue, and leaving no widow, father, mother, brother, nor sister, but leaving nephews and nieces: Held, that the heir at common law was entitled to intestate’s real estate, and that the act of assembly of the 19th April 1794, did not provide for this specific case.
    In Eeeoe 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 nor sister living. But the intestate had had brothers and sisters, who died under these circumstances: 1. Richard, who died without issue. 2. 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. 3. 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. 4. 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. 5. 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 ?”
    The plaintiff in error claimed the whole of the premises as heir-at-law of
    the intestate:
    and the lessor of the defendant in error insisted, that the
    premises ought to be divided, on the principles of the act of the assembly, directing the descent of intestates’ real estate. (3 Dall. Laws, 521.)
    .The ground of the claim of the plaintiff in error was, that the intestate had died, leaving the lineal representatives of brothers and sisters, but without leaving a father or mother, brother or sisters ; that the partition of real estate was not provided for in such a case of intestacy, by any law existing at the time of the intestate’s death ; that this being a casus omis*„51 sus in the act *of assembly, the estate must descend to the heir at the ■* common law; and that the legislature had themselves considered it as a casus omissus, by passing a supplementary act to provide for it. (4 Dall. Laws, 154.) The first act was passed on the 19th of April 1794 ; the second act was passed on the 4th of April 1797 ; but the intestate died between the dates of those acts, on the 13th of February 1797. The following authorities were cited for the plaintiff in error: Chart. of Penn. § 6 ; 1 Dall. Laws, app’x, 21 ; Ibid. p. 723 ; Hale’s Com. L. 148; 2 Bl. Com. 504; 3 Burr. 1634.
    The defendant in error admitted,
    that there was no express provision of the act of assembly, passed in 1794, precisely in all its words defining the present case ; but contended, that the case was within the general policy of the intestate law, which contemplates throughout, the partibility of estates ; and that construing the law according to the spirit, policy and intention of the makers, consistently with reason, and the best convenience, the case was necessarily understood, implied and embraced in the frame and operation of several of the sections of the law, which were cited and analyzed. The following authorities were cited for the defendant in error, 1 Plowd. 344; 2 Ibid. 414; 1 Bl. Com. 87; 10 Co. 58; 1 Dall. 351, 175 : 1 Ves. 421; 2 Eq. Abr. 245; 1 Str. 710; 2 Wils. 344; Burn. E. Law; Hob. 346; Vaugh. 179; 2 Vern. 431; Plowd. 467.
    
      
      
         - This principle was adopted and confirmed in Preston *. Hopkins, 2 Yeates 545, and in Cresoe i>. Laidley, 2 Binn. 279, but the rule has been abrogated by § 11 of the act of assembly of. the 8th April 1833. (P. L. 319.)
    
    
      
       There had not been any opinion delivered in this case by the judges of the supreme court; biit judgment was entered, by consent of the parties, to expedite' the decision of the court of dernier resort.
    
   The unanimous opinion of the Court was delivered, to the following effect, by the Chief Justice, in the absence of Chew, President.

McKean, Chief Justice.

— 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 lands, as for the enjoyment and succession of goods and chattels,” were introduced and established in Pennsylvania, to continue until 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 rale 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 regu.ated 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. 
      
       Lands entailed, and trust estates, descend, in Pennsylvania, according to the course of the common law. Goodright v. Morningstar, 1 Yeates 818; Lessee of Jenks e. Backhouse, 1 Binn. 279.
     