Lentz v. Hertzog

The opinion of the Court was delivered by Rogers, J. — The 9th section of the act of the 19th of April, 1794, declares, that “ In case any child shall have any estate, by settlement of the intestate, in his or her lifetime, by portion or portions equal to the share which shall be divided and allotted to the other children and other descendants, whether the same be by land or personal estate, such person shall have no share of the estate of which the said person died seized or possessed; and in case any child shall have any estate by settlement from the intestate, or shall have been advanced by the said- intestate in his or her lifetime, whether the said portion or advancement be in real or personal property, but not equal to the share which will be due to the other children or descendants, then so much of the surplusage of the said estate of the said intestate shall be distributed to such child or children, as shall make the estate of all the said children or descendants to be equal.” A provision somewhat similar is incorporated into the act of the 3d April, 1833. The act is founded on a principle of equity, and was intended to produce equality among all the branches of the family. The law does what it is supposed the parent would have done, had he thought proper to transmit his property by will. If, therefore, the mother Maria Barbara had died intestate as to this property, it will not admit of argument, that the portion or advancement secured to the other children by the deed of the 3d October, 1811, must be brought into hotchpot, before they could claim a distributive share of the part in respect to which she died intestate. The maintaining and education of a child, or the gift of money, without a view to a portion or settlement in life, is not deemed an advancement. The intention of the donor enters into the consideration of the gift; and whether it be a gift out and out, or a portion or advancement, may depend on circumstances; for when a contrary intention appears it will not be deemed such. And this is supposed to be, the case when small sums of money, of which no account is [524] taken, are given by a parent to his child, or when money is advanced for his education and maintenance. But even in these cases it may be otherwise, where circumstances exist which clearly indicate a contrary intention. But where a sum of money, or property of greater value is given to one child, charged with the payment of a sum of money to other children, there is no reason to say that this must not be taken as an advancement, portion or settlement, within the meaning of the act. And this is the case here. It can make no difference whether the child to whom the portion is given, is at the time married and settled in life, or is about to enter into that state. If it is intended as a provision or portion of his father’s estate in anticipation, he must account for its value before he can entitle himself to a distributive share of the estate which remains of his father at his death. It is said in Swinburne, 217, that the advancement that will exclude a child must be by the father, and not by any other. And this is true, in the sense there used, for the advancement must be made by the father, to exclude the son from participating in the father’s estate. A gift proceeding from other than the father, is placed bylaw on the same ground as a fortune acquired by the skill and industry of the child, and this it is not pretended he is bound to bring into hotchpot. The mother’s estate is governed by the same rules as the estate coming from the father, as is manifest from the reason of the thing and the act itself, which has reference in express words to the estate of the mother. And this leads to the construction of the deed of the 18th October, 1824, by Johnson and wife to Hertzog, and particularly that part of it in which it is declared that the trustees shall grant and convey the said premises, or such parts thereof as shall remain unsold and undisposed of, “ to such person or persons as shall and may then (to wit, at the death of the said Maria Barbara and Isaac Johnson,) be the heirs and legal representatives of the said Maria Barbara; and in such parts, shares and proportions, as such person or persons shall be entitled to according to the laws of Pennsylvania in cases of intestacy.” In order to designate the persons who are to take under this description in the deed, we must resort to the laws of intestacy, which' give it to the children, and the representatives of a deceased child or children, per stirpes, and not per capita. And where can we draw the line of distinction ? If this be necessary in the one case, why not in the other, especially when the construction produces equality. The grantor says, they shall have it in such parts, shares and proportions as such person or persons shall be entitled to, according to the intestate laws; or in ocher words, in case she does not dispose of it in her lifetime, the property is to be distributed in the same manner, and in the same proportions, as if she had died intestate. If it had been intended that they should take an equal share of the land, as tenants in common, it is difficult to imagine why this language was used. But on the supposition that the chil [525] dren who were equally dear to her, were to be put on an equal footing at her death, it may be readily explained. There may have been reasons which made an advance to one or more children at the time, perfectly proper, which did not apply to another. But this reason may have ceased to exist, and it is by no means inconsistent with the idea that the parent intended to place all her children on perfectly equal grounds at her death. That this may have been the case, is probable; and no reason has been given why one or more children should be so greatly preferred to another in the distribution of the estate. The Court leans to that construction which produces equality among‘children; the law, which is based upon equality, applies equally in this state to real and personal property. This view of the case, makes it immaterial whether the estate was executory or executed ; whether the words “ heirs atid legal representatives,” were words of purchase or limitation; or whether the estate to the heirs and legal representatives, was an estate for life or in fee. The Court are of the opinion, that Maria Barbara Lentz is entitled to receive the sum of three thousand dollars, &c. or other sum which may be hereafter ascertained, to make her equal to her brothers and sisters, before division of the estate. Judgment reversed, and judgment for the defendant.