
    Supreme Court of Pennsylvania EASTERN DISTRICT.
    PERSON’S APPEAL.
    Where all the intestate’s children are dead, and the estate descends to his grandchildren, advancements made to intestate’s son cannot be charged against the son’s children, three of the intestate’s grandchildren.
    Appeal from the orphans’ court of Lebanon county.
   Opinion delivered July 2, 1873, by

Mercur, J.

John Person died intestate leaving a widow and five: grandchildren. His three children, Sarah, Amanda, and David, all diedt prior to his death, Sarah and Amanda, each left one child, and David left three children. These five grandchildren are the only living lineal de-cendants of the intestate, and are equally removed from him. The question presented is, whether, in the distribution of the estate of the intestate,, the children of David are chargeable with advancements made to their father in his lifetime. If the intestate had left surviving him, a child or children, against whom these grandchildren were claiming, it is clear they are so chargeable. In that case, they would take by representation, such share only as their father would have taken, if he had been living at the death of the intestate. How do they take in this case ? The 2d section of act of 8th of April, 1833, Pur. Digest, 807, pl. 9, 11, provides, “if such intestate shall leave grandchildren^ but no child or other descendant, being the issue of a deceased grandchild, the estate shall descend' to, and be distributed among, such grandchildren.”

The facts in this case are precisely those indicated by the statute-quoted. The intestate left grandchildren, but he left no children, and no. descendants which were the issue of a deceased grandchild< Then the estate shall be distributed among his grandchildren. How shall it be distributed ? Shall it be by representation per strepes, or shall it be per capita ?’

Under the Statute of Distributions, 22 and 23 Car. II., which is very similar to our own, it is held that they tike, per capita, that is, equal shares, in their own right: 2 Black. Comm. 517; 2 Will. on Executors, 1349. So under our act of 19th April, 1794, it was held, where the intestate’s, children are all dead, all of them having left children, the parties tike per capita, or each an equal share in his own right: Earnest et al. v. Earnest et al., 5 Rawle 213. The act of 8th April, 1833, has received the same construction; that is, when all the heirs are in equal degree of consanguinity to the intestate, they take per capita: Miller's Appeal, 4 Wr. 387; Krout’s Appeal, 10 P. F. Smith 380. It is true the second section of the act of 27th of April, 1855, Pur. Dig. 808, pl. 26, changes the rule of descent, and of distribution, among collaterals; but does not change it as to grandchildren of the intestate : Krout’s Appeal, supra. Then David’s children do not take by representation through him. They as well as the other two grandchildren, take in their own right. Unless expressly so declared by statute, it is contrary to reason to hold them liable for advances made to one who is a stranger to their title. Neither the letter nor the spirit of the statute will make a grandchild liable for advances -made to one under or through whom he does not claim. The several cases of Earnest v. Earnest, supra; Levering v. Rittenhouse, 4 Whar. 130; Christy’s Appeal, 1 Grant 369; McConkey v. McConkey, 9 Watts 352; and Hughes’ Appeal, 7 P. F. Smith 179, have been cited as establishing a contrary doctrine. We do not controvert the correctness of construction given to the statute in each of those cases. In each of them the facts were entirely different from the present case. In each of them the ntestate left surviving children and grandchildren. His heirs were standing in different degrees of consanguinity to him. Hence the rule established for the benefit of their surviving children applied. It follows that where there is no surviving children of the intestate to invoke the aid of the statute relating to advancements, the children of a deceased child do not take subject to advancements made to their father: Skinner v. Wayne, 2 Jones’ (N. C.) Equity Reports 42. The learned judge, therefore, erred in confirming the report of the auditor; and the first three assignments of error are sustained. This renders it unnecessary to consider the fourth assignment. Decree reversed so far as it relates to the distribution among the several grandchildren of the intestate, and the record is remitted for the orphans’ court to proceed in conformity to the above reversion, and it is ordered that the appellees pay the costs of this appeal.

Hon. Josiah Funck, for appellant; A. R. Boughter, Esq., for appellee.'  