Dissenting Opinion
Lefever, J.,March 1, 1957. — There is no doubt that the term “heirs” refers to “the heirs as ascertained by the statutes of distribution, unless a contrary intention *207is indicated by the conveying instrument”.1 There is real question, however, as to what statute of distribution applies. The Act of June 29, 1923, P. L. 914, 21 PS §11, specifies that “heirs” of a donor or testator are to be determined at the time of 'distribution. This act does not apply here, however, because the instant case involves the heirs of a life tenant.
Prior to 1947 there was no statutory provision as to the time for determining heirs of a life tenant and little case authority. Kohler’s Estate, 199 Pa. 455, held that “a testator who commits the distribution of his estate to the law, upon the happening of an event necessarily future, must reasonably be presumed to have contemplated the possibility of a change in the law in the meantime”. However, the will in that case expressly incorporated by reference the Intestate Act in effect on life tenant’s death in these words: “Remainder to ‘such person or persons as would be entitled thereto if my said son John F. Kohler had survived his wife and died intestate, and possessed thereof and in such shares and proportions as such person or persons would in such case be entitled by law.’ ” This case is not on point. No other cases have been cited or discovered by independent research. Therefore, this question appears still to be undecided in Pensylvania.
Prior to 1947, there was grave doubt as to whether the spouse of a decedent, other than a testator or an intestate, was entitled to the $5,000 allowance provided in the Intestate Act of 1917, as part of the spouse’s intestate share.2 In Wetherill’s Estate, 4 D. & C. 667, this court awarded $5,000 plus one half the net estate to the surviving spouse of a deceased life tenant. There appears to be little other precedent on this difficult legal problem.
*208On April 24, 1947, there were enacted three companion statutes: The Wills Act of 1947, the Intestate Act of 1947, and the Estates Act of 1947, which by express provision were to take effect on January 1, 1948, and were not to apply retroactively. In framing these acts, the Joint State Government Commission intended (1) to raise the amount of the spouse’s allowance from $5,000 to $10,000; (2) to define “heirs” and specify that “heirs” are determined at the time “when the conveyance to the class is to take effect in enjoyment”; and (3) to resolve the doubt existing in the law as to the right of a spouse other than the spouse of testator or conveyor to the $10,000 allowance by including an express proviso clause in section 14(4) of the Wills Act of 1947:
“Provided, however, That the share of a spouse, other than the spouse of the testator, shall not include the ten thousand dollar allowance under the intestate laws”, and a similar proviso clause in section 14(1) of the Estates Act of 1947: “Provided, That the share of a spouse other than the spouse of the conveyor, shall not include the ten thousand dollar allowance under the intestate laws.”
This purpose is clearly set forth in the comments of the Joint State Government Commission,3 and we *209properly consider those comments in deciding this case: Martin Estate, 365 Pa. 280.
The majority opinion reasons (1) “the use of the word ‘heirs’ has been held to be the heirs as ascertained by the statutes of distribution unless a contrary intention is indicated by the conveying instrument”; (2) the applicable statute of distribution is the one in effect at life tenant’s death; (3) section 2 of the applicable Intestate Act of 1947 gives the surviving *210spouse $10,000, plus one half of the estate, and (4) the Estates Act of 1947 which excludes the right of a spouse other than the spouse of the conveyor to the $10,000 allowance does not apply in this case because . . this Court has considered the application of the Estates Act to a conveyance made prior to the effective date of the Act and has determined that the Act cannot apply: McKean Estate, 366 Pa. 192, affirming 71 D. & C. 429”.
The majority opinion overlooks the fact that, except for Kohler’s Estate, supra, which I do not consider in point for the reasons stated, there is no case authority to support the legal .proposition that the statute of distribution in effect at the life tenant’s death governs; but, more important, it overlooks the fact that section 17 of the Intestate Act of 1947 has an express provision similar to that of the Estate Act of 1947, namely: “This act shall take effect on the first day of January, one thousand nine hundred forty-eight, and shall apply to real and personal estates of all persons dying on or after that day. The existing laws shall remain in full force and effect for the real and personal estates of all persons dying before that day”. In fact, Abraham Silverman, the conveyor in the instant case, died January 16, 1927. Therefore, under the express terms of section 17 of the Intestate Act of 1947 that act cannot apply in this case.
It follows that neither the Intestate Act of 1947, nor the Estates Act of 1947, expressly govern this case. Therefore, we are required either (1) to apply the Intestate Act of 1917, and rule that under Wetherill Estate, supra, the spouse receives $5,000, plus one half the net estate, or, because of the paucity of authority, decide that the spouse is not entitled to the $5,000 allowance; or (2) we must apply the statutory law in effect at the date of life tenant’s death as *211expressing the legislative intent, as we did in Vederman Estate, 78 D. & C. 207.
Love Estate, 362 Pa. 105, is in point. There testator died in 1926. By his will he gave the residue of his estate upon the death of the survivor of his widow and daughter “unto the heirs and legal representatives of my brother James Love and my sister Emily B. Stone living at that time”. Testator’s daughter, the surviving life tenant, died in 1948. The Supreme Court adopted the opinion of our distinguished colleague, Judge Hunter, which states, inter alia (page 107) :
“There are two statutes which require that ‘heirs’ be determined at the time of distribution, the Act of June 29,1923, P. L. 914, 21 PS §11, and the Wills Act of 1947, P. L. 89, sec. 14(4), 20 PS §180.14, neither of which has a direct application to the instant case, the Act of 1923 because it applies only to the ‘heirs’ of the testator himself, and the Wills Act of 1947, which applies to the ‘heirs’ of all persons but is not retroactive.
“These acts do, however, throw light on the problem of a gift to ‘heirs’, because as was said by Mr. Chief Justice Maxey in Laughlin’s Est., 336 Pa. 529 (536), they may be: ‘referred to as a legislative establishment of a statutory presumption, and it is reasonable to believe that the presumption is “a conclusion firmly based upon the generally known results of wide human experience .” ’ ”
Applying this reasoning, section 2 of the Intestate Act of 1947, as modified by section 14(1) of the companion Estates Act of 1947 is applicable. Any other interpretation produces the anomaly that the life tenant’s spouse receives retroactively the benefit of the Intestate Act of 1947, which was adopted many years after the date of the conveyance and after the date of the conveyor’s death, without being bound by the limitations of the Estate Act of 1947, which was intended *212by the draftsmen as a complement and limit to the Intestate Act of 1947.
For these reasons, I believe the exceptions should be dismissed. Accordingly, I dissent.
Majority opinion,'page 202 and cases there cited.
See footnote 3.
The comment of the Joint State Government Commission to section 14(4) of the Wills Act of 1947 is as follows:
“Clause (4). This clause is new. It is an extension of the Act of 1923, P. L. 914, 21 PS §11, to include gifts in remainder to heirs of a person other than the testator. In all such cases it is desirable to have the class determined as of the time the remainder falls in, unless the testator directs otherwise. . . .
“ ‘Provided, however, that the share of a spouse, other than the spouse of the testator, shall not include the ten thousand dollar allowance under the intestate laws’ has been suggested by the recommendation of the Pennsylvania Bar Association Committee on the Law of Decedents’ Estates, submitted in June 1941, which read:
*209“‘The allowance of $5,000 to the spouse if there is no issue is stated to be applicable “only to cases of actual intestacy of husband or wife.” (Act of June 17, 1917, P. L. 429, Sec. 2, 20 PS §11). Yet, it has been held, and it seems properly held, that the allowance is applicable where a spouse directs that the remaining spouse shall take so much as she could claim under the intestate laws’. (Morris Est., 147 A. 840, 298 Pa. 25 (1929); Carrell’s Est., 107 A. 664, 264 Pa. 140 (1919). But cf.: Erk’s Est., 166 A. 656, 311 Pa. 185 (1933), where the will gave such portion ‘which is required by Pennsylvania Law, but no more’.) It is doubtful, however, whether this should apply where there is a similar devise or bequest to a person other than the surviving spouse. For example, if a testator leaves property to A for life and then to the heirs, next of kin or persons entitled to take from A under the intestate laws, it is doubtful whether the testator intended the spouse of A to get the $5,000 allowance. The problem is apt to become of much greater importance because of the repeal of the Rule in Shelley’s case. (Act of July 15, 1935, P. L. 1013, 20 PS §229.)
“Recommendation No. 3. The provisions for the $5,000 allowance should not apply to a gift by will or deed to a class described as those entitled under the intestate laws or to a person whose share is described as the part he is entitled to under the intestate laws, except where the beneficiary is the spouse of the donor.”
The comment of the Joint State Government Commission to Section 14(1) of the Estates Act is as follows:
“Clause (1). This clause is based on section 14(4) of the Wills Act of 1947, 20 PS §180.14, which in turn is based in part upon the Act of 1923, P. L. 914, 21 PS §§11, 12, extended to include gifts in remainder to heirs of a person other than the conveyor. It is also based on recommendations of the Pennsylvania Bar Association Committee on the law of Decedents’ Estates submitted in June 1941 and June 1942.”