Ulsh, made a few months before his death, and in a much more impressive and solemn manner than the adverse loose declarations, were conclusive that he intended the payments, not as gifts, but as charges against the fund in his hands. This contention was made in the court below, and there a special finding was made, as follows: "We therefore find as a fact that the education was not a gift, and that the guardian is entitled to a credit for the expenses thereof." We treat this finding as we would the verdict of a jury, and we also think it was a correct finding upon the testimony.

There is nothing left of the case but the question of the propriety of the payments made for the appellant's education, and there seems to be little or no contest upon that subject.

In Eyster's Appeal, 16 Pa. St. 372, we held that where a guardian permitted the rents of a small property to be received by the widow, and the share of the ward in the rents to be applied by her to the maintenance and education of the ward, who was her son and was residing with her, the guardian is not accountable to the ward for the rents, the said rents not being an unreasonable provision for the purpose.

In Smith's Appeal, 30 Pa. St. 397, we held that a guardian was entitled to credit for moneys advanced to his ward to enable him to complete a medical education.

In Shollenberger's Appeal, 21 Pa. St. 337, Woodward, J., said: "These authorities are sufficient to show that courts of equity do not disregard the claims of guardians when just and well founded. It is a salutary jealousy with which the law regards the conduct of guardians; but where they have advanced moneys to educate their wards, to pay off encumbrances, or to repair and improve their estate, and where the advancements have not been imprudently made, and are not disproportioned to the value of the estates, natural justice demands that they should be reasonably compensated."

We regard these rulings as fully applicable to the present case. We do not see how any orphans' court having jurisdiction could refuse to give the guardian authority, upon a petition presented for the purpose, to expend the whole fund in hand, if necessary, to extricate the ward from her fearful condition. 194 This decedent not only did that, but he expended nearly twice as much as the principal, and considerably more than the principal and interest combined would be, and then closed his relations with her by giving her by his will about everything he could give her consistently with a reasonable provision for the support of her

mother, who was his own daughter. If she marries, she and her children will take the whole estate of the decedent in due time, and if she remains single, she will have the whole income of the estate for life upon the death of her mother.

The decree of the court below is affirmed, and appeal dismissed, at the cost of the appellant.

GUARDIAN AND WARD-RIGHTS AND LIABILITIES OF ONE ASSUMING TO ACT AS GUARDIAN.-A stranger taking possession of an infant's estate without appointment as guardian, merely as husband of such infant's mother, who was administratrix of the father, will be held liable as guardian in a court of equity: Davis v. Harkness, 1 Gilm. 173; 41 Am. Dec. 184. A stranger or wrongdoer who takes possession of an infant's property may, in equity, be considered as the guardian of the infant and liable to account as such: Van Epps v. Van Deusen, 4 Paige, 64; 25 Am. Dec. 516.

CARPENTER'S ESTATE.

[170 PENNSYLVANIA STATE, 203.]

HEIRSHIP, FORFEITURE.-THE MURDER OF A FATHER BY HIS SON does not justify the court in disregarding the statutes of descents and distributions, by which the son inherits as heir of the father.

J. Howard Neely and W. U. Hensel, for the appellants.

J. N. Keller, J. C. Bucher, and W. H. Sponsler, for the appellees.

207 GREEN, J. The penalty for murder in the first degree in Pennsylvania is death by hanging. No confiscation of lands or goods, and no deprivation of the inheritable quality of blood, constitutes any part of the penalty of this offense. The declaration of rights, article 1, section 18, of the constitution of the state, declares that "no person shall be attainted of treason or felony by the legislature," and by section 19 it is provided that "no attainder shall work corruption of blood, nor, except during the life of the offender, forfeiture of estate to the commonwealth. The estate of such persons as shall destroy their own lives shall descend or vest as in cases of natural death; and, if any person shall be killed by casualty, there shall be no forfeiture by reason thereof." These are provisions of the organic law, which may not be transcended by any legislation. Inasmuch as the prescribed penalty for murder is death by hanging (Crimes Act 1860, sec. 75; Brightly's Purdon's Digest, p. 511, pl. 232), without any forfeiture of estate or corruption of blood, it cannot be said that

any such consequence can be lawfully attributed to any such offense. In other words, our constitution positively prohibits any attaint of treason or felony by the legislature, and any corruption of blood by reason of attainder or any forfeiture of estate, except during the life of the offender.

208 The legislature has never imposed any penalty of corruption of blood or forfeiture of estate for the crime of murder, and therefore no such penalty has any legal existence.

In the case now under consideration, it is asked by the appellants that this court shall decree that, in case of the murder of a father by his son, the inheritable quality of the son's blood shall be taken from him, and that his estate, under the statute of distributions, shall be forfeited to others. We are unwilling to make any such decree, for the plain reason that we have no lawful power so to do.

The intestate law in the plainest words designates the persons who shall succeed to the estates of deceased intestates. 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. The law says if there is a son he shall take the estate. How can we say that, although there is a son, he shall not take, but remote relatives shall take who have no right to take it if there is a son? From what source is it possible to derive such a power in the court? It is argued that the son who murders his own father has forfeited all right to his father's estate, because it is his own wrongful act that has terminated his father's life. The logical foundation of this argument is, and must be, that it is a punishment for the son's wrongful act. But the law must fix punishments; the courts can only enforce them. In this state, no such punishment as this is fixed by any law, and therefore the courts cannot impose it. It is argued, however, that it would be contrary to public policy to allow a parricide to inherit his father's estate. Where is the authority for such a contention? How can such a proposition be maintained, when there is a positive statute which disposes of the whole subject? How can there be a public policy leading to one conclusion, when there is a positive statute directing a precisely opposite conclusion? In other words, when the imperative language of a statute prescribes that, upon the death of a person, his estate shall vest in his children, in the absence of a will, how can any doctrine, or principle, or other thing called public policy, take away the estate of a child, and give it to some other person? The intestate law casts the estate upon certain designated persons, and this is absolute

and peremptory, and the estate cannot be diverted from those persons 209 and given to other persons without violating the statute. There can be no public policy which contravenes the positive language of a statute.

The supposed analogies derived from the fraudulent abuse of a contract right, or an actual notice accomplishing the same result as a constructive notice under the recording acts, or the waiver of an exemption act by one entitled to its benefits, and other instances of a similar character, are no analogies at all. There may be reasons why a statutory provision may not be applicable in a given case, when the purpose of the statute is subserved in a different mode, or dispensed with altogether, but here is a contingency which does not depend upon any act, or omission to act, of any person whatever. It is the act of the law which casts the descent of estates, and that is not regulated or controlled by the acts, the follies, the frauds, or the crimes of any individual persons. Unless the law itself contains some qualification which changes its application, or provides some disqualification by way of penalty, it must have its way, because there is no other way.

If we consider the question upon authority, we find the great preponderance of judicial decision in accord with the views above expressed. In view of the dreadful and unnatural character of the crime of the son in this case, it is not a matter of wonder that the precise question has never yet been before us, and that there is a dearth of authority among the tribunals upon such a subject.

In the case of Owens v. Owens, 100 N. C. 242, Sarah Owens was convicted of being an accessary before the fact to the murder of her husband. She was sentenced to imprisonment for life, and, while undergoing her sentence, she petitioned the court to assign her dower in the real estate of her deceased husband. In allowing her petition, the court said: "We are unable to find any sufficient grounds for denying to the petitioner the relief which she demands; and it belongs to the law-making power alone to prescribe additional grounds of forfeiture of the right which the law itself gives to a surviving wife. Forfeitures of property for crime are unknown to our law, nor does it intercept, for such cause, the transmission of an intestate's property to heirs and distributees, nor can we recognize any such operating principle."

210 In Deem v. Milliken, 6 Ohio Cir. Ct. 357, the facts were, that Elmer L. Sharkey murdered his mother, for the purpose of succeeding to the title to her real estate. He was convicted and hanged, after having mortgaged the real estate. The collateral

heirs contended that, by reason of his crime, no interest had passed to the son, and therefore the mortgages were void.

....

In the opinion, the court said: "The statute of descent neither recognizes mischief nor provides a remedy. It is a legislative declaration of a rule of public policy. .. There should be no difficulty in distinguishing this case from those in which the rights asserted have no foundation, other than the fraudulent or unlawful conduct of a contracting party, nor from those in which attempts are made to use the process of the courts for fraudulent purposes. . . . . The natural inference is, that when the legislature incorporated the general rule into the statute and omitted the exception, they intended that there should be no exception to the rule of inheritance prescribed."

In the case of Shellenberger v. Ransom, 59 N. W. Rep. 935, the supreme court of Nebraska, reversing its own former decision, reported in 31 Neb. 61, 28 Am. St. Rep. 500, held that the murderer did not forfeit the estate of his daughter, whom he had murdered in order that he might acquire the title to her real estate. At the first hearing, the court followed the decision of a majority of the New York court of appeals in Riggs v. Palmer, 115 N. Y. 506, 12 Am. St. Rep. 819, but changed their ruling on the reargument in 1894. In delivering the second opinion, the court says: "The conclusion reached by the reasoning of Judge Earle in Riggs v. Palmer, 115 N. Y. 506, 12 Am. St. Rep. 819, as well as that in this case, was based very largely on that species of judicial legislation above characterized as rational construction. If courts can thus enlarge statutory enactments by construction, it may be that the references in the majority opinion in Riggs v. Palmer, 115 N. Y. 506, 12 Am. St. Rep. 819, to the provisions of the civil law, were very apt, as illustrating how, by rational interpretation, our statute should be made to read. . . . . The legislature has spoken, their intention is free from doubt, and their will must be obeyed. It may be proper,' it has been said in Kentucky, in giving a construction to a statute, to look to the effects and consequences, when its provisions are ambiguous or the legislative intent is doubtful. But when the law is clear and explicit, and its provisions are susceptible of but one interpretation, 211 its consequences, if evil, can only be avoided by a change of the law itself, to be effected by legislative, and not judicial, action.""

...

The case of Riggs v. Palmer, 115 N. Y. 506, 12 Am. St. Rep. 819, was decided by a divided court, but it was a case of devise, and not of descent, and involved only the question of permitting a devisee to take title under the will of a testator whom he murdered