The unanimous opinion of the Court was delivered, to the following effect, by the Chief Justice, in the absence of Chew, President.

— The intestate died, leaving the children of several of her brothers and sisters, and a grandchild of one of her brothers : *57and it is now made a question, whether her real estate shall be divided among these surviving relations, or descend entirely to her heir-at-law ?

By the sixth section of the charter granted to William Penn, the laws of England “for regulating and governing of property, as well for the descent and enjoyment of lands, as for the enjoyment and succession of goods and chattels,” were introduced and established in Pennsylvania, to continue until they were altered by the legislature of the province. The common law being, therefore, the original guide, and the plaintiff in error being the heir at common law, his title must prevail, unless it shall appear, that an alteration in the rale has been made, by some act of the general assembly.

Now, when the intestate died, there was but one law in existence on the subject, the law of the 19th of April 1794 ; and though the sixth section of that law provides for the case of a person dying intestate, leaving, “ neither widow nor lawful issue, but leaving a father, brothers and sisters,” it does not provide, nor does any other of the sections provide, for the case of a ^person dying intestate, without lawful issue, and leaving no father or mother, brothers or sisters. The descent of the real estate, in this *• specific case, was not, therefore, altered or regu.ated by any act of the general assembly, when the estate was vested in the person entitled to take, at the death of the intestate.

It is probable, that if the case had been stated to the legislature, they would have directed the same distribution in the year 1794, that they have since done by the act of the year 1797 : and it is urged, that as there is equal reason for making such a distribution, where no father survives, as where a father does survive the intestate, the court ought, upon the obvious principle and policy of the law, to supply the deficiency. But it must be remembered, that the system of distributing real estates, in cases of intestacy, is an encroachment on the common law ; and wherever such an encroachment takes away a right, which would otherwise be vested in the heir-at-law, the operation of the statute should not be extended further, than it. is carried by the very words of the legislature.

We are, upon the whole, unanimously of opinion, that the judgment below should be reversed; and that judgment should be given for the plaintiff in error. (a)