construing Intestate Act of 1917
How later courts described this case
- construing Intestate Act of 1917
- views of drafter not entitled to great weight in determining meaning
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by In Re Estate of Klein, 474 Pa. 416 (1977)
315 Pa. 321, 172 A. 139, 140 (1934), abrogated on other grounds by In re Estate of Klein’s, 474 Pa. 416, 378 A.2d 1182 (1977);
The opinion
Concurring Opinion by
Mr. Justice Drew :
I feel compelled, rather unwillingly, to arrive at the conclusion that the decree of the court below is right and must be affirmed. I think it impossible, on legal grounds, to reach any other conclusion. The language of section 23 of the Intestate Act of 1917 is too plain. When considered in the light of the law as declared by us in Carpenter’s Est., 170 Pa. 203 , which has been changed only to the extent expressed clearly and unequivocally in the act, the conclusion is inevitable that except in the case of one “finally adjudged guilty, either as principal or accessory, of murder of the first or second degree,” our statute regulating descent and distribution is adamant, and we are powerless to change the course of descent from that expressed therein. As we said in that case, “The intestate law in the plainest words designates the persons who shall succeed to the estates of deceased in-testates. It is impossible for the courts to designate any different persons to take such estates without violating the law. We have no possible warrant for doing so.” That case has never been overruled, and is the law of the Commonwealth today, except in the one respect changed by the act. As we have seen, that change affects only inheritance by one “finally adjudged guilty......of murder,” which certainly means after trial, conviction, and final judgment in a court of oyer and terminer; and, by the same token, it certainly does not affect the inheritance of one not so adjudged guilty of murder. We have
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not tlie power to set aside the plain mandate of the statute of descent, and we would do that if, for any reason, we wrote into it a course of descent other than that provided therein. Without overruling the principle expressed in Carpenter’s Estate, which I have quoted above, and doing violence to the statute of descent, the device of a constructive trust cannot be employed.
For these reasons I agree with the majority that the decree of the court below should be affirmed, hoping that the legislature in its wisdom will so change the law that, on facts such as those which have caused our division, the question of guilt will be submitted to and determined by a jury.