Tarlo's Estate

Dissenting Opinion by

Mr. Chief Justice Frazer:

In Carpenter’s Est., 170 Pa. 203 , this court held that a son who unlawfully killed his father was entitled under the intestate laws to participate in the distribution of the father’s estate. The decision was later followed by section 23 of the Intestate Act of 1917, which provides as follows: “No person who shall be finally

adjudged

guilty, either as principal or accessory, of murder in the first or second degree, shall be entitled to inherit or take any part of the real or personal estate of the person killed, as surviving spouse, heir or next of kin to such person under the provisions of this act.” In my opinion, Carpenter’s Estate is the law today and should be followed except to the extent changed as indicated in the Act of 1917. While the language of the Act of 1917 is somewhat uncertain the intention of its framers should be ascertained by “rational interpretation” of its provisions ; applying this rule to the situation before us, it seems to me that under the legislation in question, in adjudicating estates of murdered persons, the killer should be “finally adjudged guilty [of the killing], either as principal or accessory,” by the tribunal having jurisdiction in such eases, before his next of kin can be barred from participating in the distribution of the es

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tate of Ms victim. As I read the act, its provisions do not require that the killer be convicted of murder in the court of oyer and terminer, as this would be impossible in many cases, especially the one now before us, as here the offender died by his own hand within a few hours following the killing. We should assume the legislature did not intend the Act of 1917 to be of little or no effect or its provisions to be applicable only in cases where conviction is had in the court of oyer and terminer; what it undoubtedly intended was that the circumstances of each particular case should be “adjudged,” that is, decided and determined in a competent tribunal, either civil or criminal as the situation demands. In this case, in my opinion, the orphans’ court, in adjudicating distribution of the deceased’s estate, is the proper tribunal to determine the parties entitled to participate in the distribution. If the killer had survived and been convicted, and sentenced in the court of oyer and terminer for murder of the first or second degree or accessory, that conviction would be conclusive in determining the right of those entitled to participate in the distribution. Here, the offender’s suicide immediately following the killing precludes a trial in the court of oyer and terminer, and if the legislation is to have any bearing on cases of this character, its provisions require the right of those claiming to participate in the distribution of the decedent’s estate to be passed upon by a proper tribunal. That he took the life of his daughter is not disputed. Do the circumstances surrounding the unfortunate occurrence establish the elements necessary to sustain murder of either first or second degree or accessory? If they do and the father is, after hearing testimony, adjudged to have been sane at the time of committing the deed, his next of kin is not entitled to inherit; if, on the contrary, he was insane and as a result of that condition or because of some other legal reason not chargeable for his act, the next of kin should participate in the distribution under the intestate laws. The question of the

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killer’s responsibility should, under the situation here before us, be determined by the orphans’ court and distribution made in accordance with the finding supported by the testimony after full hearing.

I would remit this case for further hearing and disposition as herein indicated.