Raymond Moore Remick.

The statutory law of decedents' estates in Pennsylvania, with annotations and forms online

. (page 1 of 71)
Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 1 of 71)
Font size
QR-code for this ebook



















By the Act of April 23, 1915, (P. L. 177) the General Assembly
of the Commonwealth of Pennsylvania authorized the Governor
"to appoint a Commission of three persons, learned in the law, and
one of whom shall be an orphans' court judge in commission, to
codify and revise the law of decedents' estates whether testate or
intestate, and to report the same to the next General Assembly, and
to recommend such changes in the existing law as may to such
Commission seem advisable."

Acting under this authority, on October 4, 1915, Governor
Brumbaugh appointed Hon. John Marshall Gest, then and now a
judge of the Orphans' Court of Philadelphia County, Hon. George
E. Alter, the present Attorney General, and Hon. Thomas J. Bald-
rige, the President Judge of Blair County, as Commissioners to
carry out the purpose of the act. The wjsdom of his choice is
best demonstrated by the results of their labor.

The Commission appointed Samuel D. Matlack, Esq. of the
Philadelphia Bar, its Law Clerk and Secretary, and through him
presented its printed report to the Assembly on February I, 1917.

It is an indication of the painstaking and valuable work of this
Commission that the General Assembly of 1917, enacted without
change (except as noted in Section 391 and the end of Section 623
herein) the acts which were offered by the Commission for its con-
sideration. The acts were all approved on June 7, 1917, and include
the "Orphans' Court Partition Act," (P. L. 337) ; the "Orphans'
Court Act," (P. L. 363) ; the "Revised Price Act," (P. L. 388) ;
the "Wills Act," (P. L. 403) ; the "Register of Wills Act," (P. L.
415) ; the "Intestate Act," (P. L. 429) ; and the "Fiduciaries
Act," (P. L. 447). On the nth day of July, 1917, there were ap-
proved two acts one (P. L. 755) amending Clause 2, (a) of the
Intestate Act, and the other (P. L. 790) providing that fiduciaries
having an interest in any coal-mining lease may, with the approval
of the court, sell, assign, alter, modify and supplement the same
under the same procedure as that prescribed for the sale of real
estate under the Revised Price Act.

Several minor changes have also been made by the Legislature
in its sessions of 1919 and 1921. Otherwise the code as drafted
and presented by the Commissioners remains unchanged, an ever-
lasting monument to their industry and ability. Some idea of the


value of this codification and revision to the bar may be gained
from the fact that it supersedes two hundred and eighty-seven
former acts repealed absolutely or in part.

The Commissioners, in their report, embodied certain prelimi-
nary notes to the report as a whole and also with respect to each
act. Also, in connection with each section as presented, they an-
nexed an explanatory remark and a statement as to the former
law which the proposed section was intended to supersede, to-
gether with a reference to Purdon's Digest where the former act
had been annotated, and in certain cases, to the decision of the
court which impelled or suggested the proposed change or new
enactment. These comments by the Commissioners, are, to the
practitioner, of inestimable value in construing the act and apply-
ing it to present cases in the light of former precedents. With
the consent of the Commissioners these prefatory remarks and
sectional notes have been embodied herein verbatim.

The value of these notes by the Commissioners, to the bench
and bar in construing the acts may be gained from the following
extract from an opinion of Mr. Chief Justice Moschzisker in
Miles' Est., 272 Pa. 329:

"While it is well settled that courts may not resort to views expressed
by those who either draft or enact laws, for the purpose of determinng
the meaning of the words employed therein (see opinion of the court
below in Com. v. Mathues, 210 Pa. 372, 392, and authorities there cited),
yet, in order to get at the old law, the mischief and remedy, and properly
to understand and construe a statute embodying the latter, the history of
the enactment in question may always be considered ; and when the
statute under consideration is a general revision, 'the law as therein
written will be deemed to be the same as it stood prior to the revision,
unless we find from the statute itself, or its history, a clear intention to
change it ;' " In re Lis's Estate, 139 N. W. 300, 302, and cases there cited ;
also see authorities in 36 Cyc. 1223.

The United States Supreme Court has recently decided, in Duplex Print-
ing Press Company v. Deering (advance opinion of February i, 1921, pp.
182-3), that the report of a committee, having a bill in charge during its
passage, "may be regarded (judicially) as an exposition of the legisla-
tive intent in a case where otherwise the meaning of a statute is obscure ;"
but it is not necessary to express our views on this point or resort to
such an expedient in the case at bar, for, as already shown, when the
history of the legislation and all cognate parts of the present act are
considered together, the meaning of the statute becomes reasonably
clear. We may add, however, that when the report of the commission
which drafted the present act (The Intestate Act) is examined, to as-
certain what that body was endeavoring to express (a course pursued by
this court in McDowell v. Addams, 45 Pa. 430, 433, when construing the


old Intestate Act of 1833; see also Whitaker's Estate, 175 Pa. 139, 140-2,
and in re Lis's Estate, supra), it is of interest to observe that the notes,
on the several sections of the act to which we have referred in this
opinion, show the intention of the original draftsmen, so far as the
meaning of these parts are concerned, is borne out in the construction
placed upon their work by the court below, and concurred in here."

No attempt has been made to digest the cases construing the
former acts of assembly replaced by the present Code as this has
been accomplished in Purdon's Digest, to which reference is
herein given. There have been added a digest of the cases con-
struing the sections of the acts as the same have been reported,
a comprehensive index, table of cases, citation of cases and lists
of acts amended or repealed and a collection of forms.

This work purports to include all amendatory acts of 1919 and
1921 and all reported cases down to December 31, 1921.

The editor acknowledges with thanks the assistance of Harry C.
Reynolds, Esq., and Joseph A. Lamorelle, Esq., of the Philadelphia
Bar, in verifying the citations of authorities, etc.



The undersigned were on October 4, 1915, appointed by his ex-
cellency, the Governor, in accordance with the Act of April .23,
1915, P. L. 177, as Commissioners to codify and revise the law of
decedents' estates, whether testate or intestate, and to report the
same to the next General Assembly, and to recommend such
changes in the existing law as may to such Commission seem de-
sirable. We have now the honor to submit our report, which we
beg leave to preface with a few explanatory remarks.

On March 23, 1830, the General Assembly adopted a joint res-
olution, printed in the Pamphlet Laws of 1830, page 408, by which
the Governor was authorized to appoint three persons as Com-
missioners to revise, collate and digest all such public acts and
statutes of the civil code of this State and all such British Statutes
in force in this State as are general and permanent in their nature.
In accordance with this resolution the then Governor, the Honor-
able George Wolf, appointed William Rawle, Thomas I. Wharton
and Joel Jones as such Commissioners, who subsequently reported
a large number of draft Acts, five of which, relating to our present
subject, were substantially adopted by subsequent Legislatures
as the Act of March 15, 1832, P. L. 135, entitled An Act Relating
to Registers and Registers' Courts ; the Act of March 29, 1832,
P. L. 190, entitled an Act Relating to Orphans' Courts ; the Act
of April 8, 1833, P. L. 249, entitled An Act Relating to Last Wills
and Testaments; the Act of April 8, 1833, P. L. 315, entitled An
Act Relating to the Descent and Distribution of the Estates of
Intestates, and the Act of February 24, 1834, P. L. 70, entitled An
Act Relating to Executors and Administrators.

These acts were drafted with great care and consummate skill,
and have served for over eighty years as the substratum of our
law of decedents' estates and connected subjects; but during this
long period of time the law has been amended by the passage of
more than two hundred Acts of Assembly, has been elucidated and
applied in countless judicial decisions, and has been necessarily
affected by the cumulative changes in legal practice and public
opinion. The present would therefore seem an appropriate time
to re-examine the entire subject, to repeal statutes which are either
dead letters in the books or prejudicial in their effect, to consolidate



those that should be retained and to revise the entire system by
the cautious introduction of new legislation.

The act under which we were appointed uses the words "to
codify and revise" ; and as the word "code" is often used in dif-
ferent meanings, we beg leave to observe, that as we have under-
stood the legislative intention, .we were not expected to reduce to
the form of a code those general principles which lie at the basis
of jurisprudence, a task that would indeed be beyond our powers,
even if its accomplishment were desirable. We have considered
that we were merely expected to arrange this branch of the law in
an orderly and systematic form, to relieve it from obscurity and in-
consistency, and thus to render its application easier and more

In our endeaver to fulfil the difficult and responsible task thus
imposed upon us, we have in many ways been guided by the ex-
ample of the Commissioners of 1830, and particularly in this : We
have avoided making any change in the phraseology of the existing
statutes unless some definite and substantive change in the purpose
of the law itself was intended, even where some other words or
expressions might seem better adapted to express that purpose.
Our obvious reason has been that the phraseology of the older
statutes, much of which the Commissioners of 1830 copied from
prior statutes as early as those of 1705, 1794 and 1797, has ac-
quired through long use and judicial decision a settled and deter-
minate meaning, which should not be disturbed through any de-
sire to attain mere elegance of diction; and, indeed, this course
was expressly enjoined upon the Commissioners of 1830 by the
Resolution of the General Assembly, which provided that in the
revision of the statutes "no such change shall be made in their
phraseology by which their true intent and meaning shall in any
wise be impaired, altered or affected, except in those instances
in which it shall be expressly intended and proposed to amend or
change the existing provisions of such statutes." This principle
has however been adhered to with greater strictness in revising
those statutes which relate to substantive law than in case of
those which merely regulate procedure; and, throughout, some
verbal changes have been made for the sake of brevity and clear-
ness, where no alteration of the meaning is involved.

Upon another point we would also refer to the judicious
language of the Commissioners of 1830, where they stated their
belief that the Legislature desired to possess not only a revised


and consolidated code, but one systematized as to subject matter
and arranged into regular and appropriate titles each of which
shall contain all that naturally belongs to it and no more.

Our duty has been "to codify and revise the law of decedents'
estates, whether testate or intestate." As soon, however, as we
undertook that duty, we found that it was difficult, if not impos-
sible, to perform it without apparently exceeding the scope of our
appointment. We discovered that many statutes applied not
merely to the estates of decedents, but in a broader way to other
subjects ; we could not touch one without touching another, and
yet if we omitted such statutes altogether, our work would have
been rendered obviously imperfect. For example, the Act of
April 1 8, 1853, P. L. 503, commonly called the Price Act, relates
not merely to sales of real estate where the real estate has been
acquired by descent or will, but also to cases where the title has
been acquired by deed, in which case jurisdiction is vested in the
Courts of Common Pleas ; and yet by far the greater number of
the cases to which the Act applies arise under wills. In this case,
we have assumed that our inclusion of such a statute in our work
of revision was virtually intended by the Legislature and there-
fore submit our report with this explanation.

So far as concerns our recommendations for substantive
changes in the law, we have endeavored to be conservative, and
yet have not hesitated to suggest important changes where we
thought them distinctly beneficial. It has been often said, and with
truth, that the burden of proof is upon him who advocates a
change in the law, and this rule is distinctly applicable to that de-
partment of the law which has been referred to us. For the law
of decedents' estates in this Commonwealth is and has been for
many years, certainly since the Revised Acts drafted by the Com-
missioners of 1830, most admirable in its theory, and in practice
most satisfactory to the community. We have therefore been
careful to limit our recommendations to those changes, which we
felt after our careful deliberations and unanimous conclusions
would meet with the approval of the representatives of our fellow
citizens, and deserve a practical trial. We have further endeav-
ored to obtain from those best qualified to make suggestions their
aid and counsel, and to this end immediately on our appointment
addressed the Judges of the Supreme, Superior, Common Pleas
and Orphans' Courts of the Commonwealth, and caused an ad-
vertisement of our appointment to be inserted in our principal


legal journals as notice to the Bar. All the suggestions that we
have received in this way have been carefully considered and
many of them have been adopted by us.

It gives us pleasure also to acknowledge our indebtedness to
the Legislative Reference Bureau for much valuable assistance.

In thus laying before the General Assembly the accompanying
drafts, we would express our fear lest the complexity and diffi-
culty of our subject may have caused us to omit matters that
should have been included. But we hope that such are not numer-
ous or, comparatively speaking, important, and that the work as
a whole may meet with the approval of the General Assembly
and prove beneficial to the Commonwealth.



Law Clet*k and Secretary.
FEBRUARY i, 1917.



June 7, 1917 (P. L. 337)

Preliminary Note by Commission

None of the subjects considered by the Commissioners have
needed revision more than that of partition. The Acts of Assem-
bly relating to this are numerous and complicated, and the Com-
missioners have experienced no little difficulty in their revision.

In Sections 2 and 3 of the Act as reported, express provision
is made for a citation and notice to the parties interested before
an inquest is awarded.

In Section 5, and in other sections of the act, more liberal pro-
vision is made for the service of citations or notices to parties
resident outside of the commonwealth.

In Section 6, it is provided that the sheriff's inquisition shall
consist of three men, corresponding with the number of commis-

In Section 7, the fees of commissioners and jurors are regulated.

In Section 13, it is provided that the allotment of purparts
among the parties entitled shall be in accordance with seniority
of age, in order to establish a uniform method in all cases.

In Section 43, an appeal is authorized from the decree of the
court awarding an inquest, which under the present law is held
to be interlocutory only.


1917 Section

Pamphlet Number

Laws Herein

The Orphans' Court Partition Act, 337 I

Section i. Jurisdiction of Orphans' Court, 339 2

(a) In general, 2

(b) Coal and timber-lands, 340 3


1917 Section

Pamphlet Number

Laws Herein

Section 2. Petitioners, 4

Section 3. Citation, 5

Section 4. Parties respondent; notices to unknown

parties, 6

Section 5. Service outside of State 7

Section 6. Appointment of commissioners, or award

of inquest, 34*

Section 7. Compensation and mileage of commis-
sioners and jurors, 9

Section 8. Making of partition by commissioners,

or inquest, 10

Section 9. Action of commissioners or inquest, where

equal partition cannot be made, II

(a) Where no division is possible; valuation

of the whole, 1 1

(b) Purparts unequal in value, 12

(c) Purparts not equal in number to number

of parties entitled, 13

Section 10. Valuation of undivided interest of

decedent, 342 14

Section n. Rule to accept or refuse the whole or

purparts at the valuation, 15

Section 12. Bids above valuation, 16

Section 13. Allotment in the absence of bids, 17

(a) Order of choice, 17

(b) Offer to next in succession where party

entitled fails to appear, or refuses to take, 343 18

(c) Election to take real estate, or share
thereof, postpones party as to other
shares, or as to real estate in other

county, ig

Section 14. Permitting residue of premises to remain

for parties not appearing 20


1917 Section

Pamphlet Number

Laws Herein
Section 15. Allotment to widow as highest bidder,.. 343 21

Section 16. Partition to be firm and stable after final

decree, 22

Section 17. Owelty, 344 23

(a) Payment or security, 23

(b) Enforcement of payment by nonresident, 24

(c) Appointment of trustee for parties who

are unknown, or cannot be found, 25

Section 18. Widow's interest, 345 26

(a) Interest to remain charged on the

premises, 26

(b) Charging widow's interest on particular

purparts, 27

Section 19. Other undivided life interests to remain

charged on real estate, 346 28

Section 20. Deduction of rental value from shares of

parties who have been in possession, 29

Section 21. Rule to show cause why sale should not be

made ; decree of sale, 30

Section 22. Combination of rule to accept or refuse
with rule to show cause why sale should
not be made, 347 31

Section 23. Sales for the purpose of distribution, on

petition of all parties interested, 32

(a) In general, 32

(b) Lands in different counties, 348 33

Section 24. Appointment of trustee to make sale,.. 34

Section 25. Bond of executor, administrator, or

trustee making sale, 35

Section 26. Discharge of liens by sale, 36

Section 27. Recognizance by purchaser, 349 37

Section 28. No obligation to see to application of

purchase money, 38


1917 Section
Pamphlet Number
Laws Herein
Section 29. Widow's interest to remain in hands of

purchaser, 39

Section 30. Other undivided life interests to remain

charged on real estate, 40

Section 31. Appointment of trustee to hold prin-
cipal of sum in which there is a life

interest, 350 41

Section 32. Procedure where executor, administrator,
or trustee becomes incapable, is removed,

or dies, 42

Section 33. Appointment of auditor to ascertain liens

or incumbrances, 43

Section 34. Account of executor, administrator, or

trustee, 351 44

Section 35. Costs and counsel fees 45

(a) In general, 45

(b) In cases of sale, 46

Section 36. Private sales, 47

(a) When ordered, 47

(b) Notice of sale, 48

(c) Setting aside sale, 352 49

Section 37. Lands in adjoining tracts in different

counties, 50

Section 38. Lands in different counties, but not in

adjoining tracts, 353 51

(a) Where proceedings shall be brought, 51

(b) Service of process and notices, 52

(c) Selection of commissioners or jurors;
compensation and mileage, 53

(d) Sales, 54

(e) Proceedings not specially provided for in

this section 55

(f) Filing certified copies in other counties,.. 56

Section 39. Recognizances in general, 354 57

(a) Ascertainment of amounts due, 57

(b) Satisfaction, 58

1. Satisfaction of record, 58

2. Remedy for refusing to satisfy 59


1917 Section

Pamphlet Number

Laws Herein
Section 40. Protection of interests of persons not in

esse 60

Section 41. Partition docket, 355 61

Section 42. Partition index, 62

Section 43. Appeals, 63

Section 44. Short title section, 64

Section 45. Repealer 355-63 65



Relating to the jurisdiction, powers and procedure of the several
orphans' courts in proceedings for the partition and valuation
of real estate, and for the sale of real estate for the purpose
of distribution, and the fees, costs and expenses therein.


SECTION i. (a) Be it enacted by the Senate and House of Rep-
resentatives of the Commonwealth of Pennsylvania in General
assembly met, and it is hereby enacted by the authority of the
same, that the orphans' court of each county of this Common-
wealth shall have jurisdiction, but not exclusive jurisdiction, 1 in
the partition and valuation of real estate, within the county, of

NOTE. This is a new section combining the provisions of the various
acts relating to the jurisdiction of the Orphans' Court in partition. The
derivation of the different clauses is shown in the special notes below.

Special Notes to Section i.

a Derived from Section i of the Act of April 21, 1846, P. L. 426, 3
Purd. 3451, which provides that the jurisdiction in cases of intestacy shall
not be exclusive, and the proviso to Section 4 of the Act of April 13, 1840,
P. L. 320, 3 Purd. 3424, which makes similar provision as to cases of

It seems unnecessary to reenact the provision of those acts that nothing
therein contained shall be construed to prevent any of the parties interested
in the real estate from proceeding by action in partition (or bill in equity)
as theretofore.


any decedent, testate 2 or intestate, 3 whether such decedent was at
the time of his death seized or possessed of such real estate solely
or as tenant in common or joint owner with any other person or
persons, 4 and whether or not the surviving spouse of such de-
cedent shall elect to take against his or her will, 8 and notwith-
standing there may be a limitation of an estate or interest in 'the
premises or some part thereof, to a person or persons not in 'ex-
istence ; 6 and several undivided interests in any premises, derived
from different ancestors by descent or devise, may be parted or
valued in one proceeding in said court : 7 Provided, That such

2 This covers the provisions of Section 4 of the Act of April 13, 1840,
P. L. 320, 3 Purd. 3424; Section i of the Act of May 9, 1889, P. L. 146, 3
Purd. 3424; and Section 10 of the Act of April 10, 1849, P. L. 596, 3 Purd.
3424, so far as they confer jurisdiction in cases of testacy.

The Act of 1840 gave jurisdiction where the parties interested or any of
them were minors or the course of descent was not altered by the provi-
sions of the will. The Act of 1889 gave jurisdiction in all cases of testacy,
without respect to the minority of the parties or their relationship to the
testator. The Act of 1849 gave jurisdiction where the whole or part of the
real estate was devised to two or more children.

3 This embodies the jurisdictional provision of Section 36 of the Act
of March 29, 1832, P. L. 201, 3 Purd. 3418. This was Section 38 in the
draft of the Commissioners of 1830, and was founded upon Section 22 of
the Act of April 19, 1794, 3 Sm. L. 143, with various changes.

The Commissioners remarked that in this and the ten succeeding sec-
tions they had collected all the provisions relating to partition in the
orphans' court which were scattered in various acts, and had endeavored
to consolidate and arrange them in order.

Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 1 of 71)