Raymond Moore Remick.

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

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37 Lane. 29, 15 Del. 199.

155. PRODUCTION OF BOOKS AND PAPERS.

(c) The orphans' court shall have power to compel the pro-
duction of any books, papers or other documents, necessary to
a just decision of the question before them, or before an auditor
or master.

NOTE. This is the last part of Section 56 of the Act of 1832, P. L.
208, 3 Purd. 3380.

The first part of that section conferred the right to cross-examine
parties in the orphans' court as though they were made defendants in a
bill in equity for discovery, which provision is now obsolete in view of
the later general acts on the subject.

156. PERPETUATION OF TESTIMONY.

(d) Every orphans' court of this commonwealth shall have
the jurisdiction and powers of a court of chancery, so far as
relates to the perpetuation of testimony in all cases, including
cases of lost or destroyed records of such court, whether such
records were lost or destroyed before or after the passage of this
act, and the same proceedings, orders, decrees and judgments
shall be had under this section, mutatis mutandis, as in cases now
authorized by law, and with the like effect; and when proved,
such records shall have the same legal operation as the original
records would have had. Notice of any proceeding under this
clause shall be given to all persons interested, or their guardians
or committees.



ORPHANS' COURT ACT SECTIONS 20 (d), (e) i, 2,-2i (a) 89

NOTE. This is founded on Section I of the Act of April i, 1863, P. L,.
205, 3 Purd. 3385, which, however, is limited to cases of lost or destroyed
records. The first proviso of that section has been omitted, its substance
being covered by a modification of the phraseology of the first part of
the clause, and the last sentence has been substituted for the provision
that notice shall be served upon "minors and their guardians."

157. TESTIMONY IN PROCEEDINGS REMOVED

FROM REGISTER OF WILLS; WHAT TESTI-
MONY TO BE BASIS OF DECISION.

(e) i. On appeal from the decision of any register of wills,
or in proceedings removed from any register of wills by certifi-
cation, the orphans' court shall hear the testimony de novo,
unless all parties appearing in the proceeding shall agree that
the case shall be heard on the testimony taken before such
register: Provided, That in all cases the court shall have power
to require the production before it, for examination, of the wit-
nesses already examined, or of any other witnesses.

NOTE. This is a new clause, introduced in order to remove any pos-
sible doubt as to the procedure in such cases.

158. TESTIMONY TAKEN IN ORPHANS' COURT TO

BE REDUCED TO WRITING.

2. The testimony of all witnesses examined in any cause liti-
gated before any orphans' court on appeal from any register
of wills, or on removal from any register of wills by certification,
shall be taken in writing and made a part of the proceedings
therein, upon which testimony the court having jurisdiction of
such cause by appeal may affirm, reverse, alter or modify the
decree of the orphans' court.

NOTE. This is founded on Section 40 of the Act of March 15, 1832
(P. L. 135) 4 Purd. 4086, which was derived from Section 18 of the Act
of April 13, 1791, 3 Sm. L. 28 ; the Act of 1832, however, referred to the
register's court.

The words "on appeal from any register of wills, or on removal from
any register of wills by certification," have been inserted to show that
the paragraph does not apply to other proceedings in the orphans' court.

159. ISSUES TO THE COMMON PLEAS, IN GEN-

ERAL.

SECTION 21. (a) The orphans' court shall have power to send
an issue to the court of common pleas of the same county for



90 ORPHANS' COURT ACT SECTION 21 (a), (b)

the trial of facts by jury, whenever they shall deem it expedient
so to do.

NOTE This is Section 55 of the Act of March 29, 1832, P. L. 208,
3 Purd. 3378.

See Klagholz's Est., 27 Dist 95 ; Byerly's Est., 258 Pa. 410, 102 Atl. 143.

160. IN PROCEEDINGS REMOVED FROM REGISTER
OF WILLS.

(b) Whenever a dispute upon a matter of fact arises before
any orphans' court, on appeal from any register of wills or on
removal from any register of wills by certification, the said court
shall, at the request of either party, direct a precept for an issue
to the court of common pleas of the county for the trial thereof,
which, in the case of an issue devisavit vel non, shall be sub-
stantially in the following form : (L. S.) County, ss.
The Commonwealth of Pennsylvania : To the judges of the court
of common pleas of the said county, greeting: Whereas, A. B.,
on the day of , in the year, etc., presented to
G. H., our register of wills of said county, for probate, a certain
writing hereto annexed, purporting to have been made the
day of , in the year, etc., (or otherwise describing the
paper in question), which said writing the said A. B. avers is
the last will and testament of the said C. D., and whereas E. D.,
who is a son and heir of the said C. D. (or intermarried with
F. D., who is a daughter and heir, etc., according to the fact),
hath objected before our said register that the said writing was
procured by duress and constraint (stating the matters of fact
objected), and whereas our said register hath admitted (or
refused to admit) said writing to probate as the last will and
testament of the said C. D., and whereas the said E. D. hath
appealed from the decree of our said register to our orphans'
court for the said county (or as the case may be) and whereas
the said E. D. (or A. B.) hath requested that an issue may be
directed into our said court of common pleas to try by a jury
the validity of the said writing, and the matters of fact which may
be objected thereto in our said court; therefore, we command
you that you cause an action to be entered upon the records of
our said court, as of the day of the delivery of this our precept
into the office of the prothonotary of our said court, between the
said A. B. and the said E. D., so that an issue therein may be



ORPHANS' COURT ACT SECTION 21 (&), (c) i 91

formed upon the merits of the controversy between the said
parties, and tried in due course according to the practice of our
said courts in actions commenced by writ ; and further, that you
cause all other persons who may be interested in the estate of
the said C. D., as heirs, relations or next of kin, devisees, legatees
or executors, to be warned, so that they may come into our said
court and become party to the said action, if they shall see cause,
and that you certify the result of the trial so had in the premises
into our said orphans' court. Attest. I. J., President Judge
of the Orphans' Court of the said county.

Where the issue directed is other than an issue devisavit vel non,
the foregoing form shall be changed, so far as necessary, in ac-
cordance with the circumstances of the case.

And the facts established by the verdict returned shall not be
re-examined in any appeal.

NOTE. This is Section 41 of the Act of March 15, 1832, 4 Purd. 4088,
with the substitution of "orphans' court" for "register's court," and
the insertion of the words beginning "on appeal" and ending "certifica-
tion," in order to show that the section applies only to cases coming
up from the register.

Section 41 of the Act of 1832 refers to the form of precept prescribed
for issuance by the register. Since this form is embodied in the new
Register of Wills Act, a similar reference cannot be made in the present
section, and the form is therefore set forth at length, with the proper
changes for an issue devisavit vel non.

Under this section of the act the dispute must be substantial and must
arise from a conflict of testimony and must also be as to some matter of
fact, material to the decision of the question at issue. The question of
legitimacy of an alleged son and heir of the decedent is not such a
material or essential question as to warrant the direction of a precept for
an issue to the court of common pleas. Wand's Est., 50 Pa. C. C. 516.

161. DISTRIBUTION OF PROCEEDS OF SALES OF
REAL ESTATE, AFFIDAVIT.

(c) i. Before an issue shall be directed upon the distribution
of money arising from any sale of real estate made under order
of the orphans' court, the applicant for such issue shall make
affidavit that there are material facts in dispute therein, and shall
set forth the nature and character thereof, upon which affidavit
the court shall determine whether such issue shall be granted,
subject to appeal by such applicant, if the issue be refused, in,
like manner as in other cases in which such appeal is or may be
allowed by law.



92 ORPHANS' COURT ACT SECTIONS 21 (c) i, 2-22 (a)

NOTE. This is the proviso to Section 2 of the Act of April 20, 1846,
P. L. 411, 3 Purd. 3379, which applies also to "sales under execution."
While the subject-matter of this clause is probably covered by clause (a)
of the present section, the Commissioners have concluded to recommend
its inclusion. The section of the Act of 1846 is not recommended for
repeal except so far as it relates to the orphans' court.

The following changes have been made : In lines 2 and 3, "any sale
of real estate made under order of the orphans' court" has been sub-
stituted for "orphans' court sales." In line 8, "a writ of error or" has
been omitted before "appeal," and, at the end, "appeal is or may be
allowed by law" has been substituted for "writ now lies."

162. INVESTMENT OF FUND PENDENTE LITE.

2. Upon granting any such issue, it shall be discretionary with
the court, upon the application of the party or parties appearing,
by the record, prima facie entitled to the said fund, to order the
same to be invested, pendente lite, in investments allowed by law
in the case of trustees.

NOTE. This is Section 3 of the Act of April 20, 1846, P. L. 411, 3 Purd.
3380, which, like Section 2 of that Act, is to be repealed only so far as it
relates to the orphans' court.

In line 2, after "court," these words are omitted : "so soon as the
money arising from such sale shall have been paid into court." At the
end, "investments allowed by law in the case of trustees" has been
substituted for "the debt of the United States, or some other sufficient
security, subject to the decree of the court."

163. APPEALS, RIGHT OF APPEAL AND ITS EF-

FECT.

SECTION 22. (a) Any party aggrieved by the definitive sentence
or decree of any orphans' court, or his legal representatives,
may appeal therefrom to the proper appellate court within six
months from the time of pronouncing such final sentence or
decree : Provided, That no appeal from any decree of such court,
concerning the validity of a will, or the right to administer, shall
suspend the powers or prejudice the acts of any executor or
administrator to whom letters have been granted : And provided
further, That no reversal or modification of any decree or pro-
ceedings of the orphans' court, for the sale of real estate, shall
have the effect of divesting any estate or interest acquired under
such decree or proceeding, by persons not party thereto, where
the orphans' court had jurisdiction of the case.

NOTE. This is founded on Section 42 of the Act of March 15, 1832, 4
Purd. 4092, and Section 59 of the Act of March 29, 1832, P. L,. 213, 3



ORPHANS' COURT ACT SECTIONS 22(0), ^-23-24 93

Purd. 3383-4. The former section relates to appeals from the register's
court in cases where the sum in controversy exceeds $150, and provides
that the powers of an executor shall not be suspended by an appeal if
he gives sufficient security to the register for the faithful administration
of his trust, and that on his refusal to give security the register shall
grant letters of administration during the dispute, which shall suspend
the power of the executor during that time. In that section, the period
for appeal is one year. The provisions which are omitted in the present
draft seem unnecessary in view of the provisions of the Fiduciaries Act
as to the requiring of security and the granting of letters pendente lite.
The first proviso of Section 59 of the Act of March 29, 1832, and
Section 8 of the Act of May 19, 1874, P- L. 206, are omitted, having been
repealed by Section 22 of the general appeals Act of May 19, 1897,
P. L. 72.

See form of bond on appeal, 25.

164. DISPOSITION OF CASES ON APPEAL.

(&) The supreme and superior courts of this commonwealth
shall, in all cases of appeal from the definitive sentence or decree
of the orphans' court, hear, try and determine the same as to
right and justice may belong, and decree according to the equity
thereof ; and may refer the same to auditors when, in their dis-
cretion, they may think proper.

NOTE This is a combination of Section 4 of the Act of April 14, 1835,
P. L. 276, 3 Purd. 3384, and Section 2 of the Act of June 16, 1836, P. L.
683, 3 Purd. 3385, extended so as to include the superior court.

165. SHORT TITLE.

SECTION 23. This act shall be known and may be cited as the
Orphans' Court Act of 1917.

166. REPEALER.

Section 24. The following acts and parts of acts of assembly
are repealed as respectively indicated. The repeal of the first
section of an act shall not repeal the enacting clause of such act.

Sections i, 8 and 9 of an act entitled "An Act for establishing
orphans' courts," passed March 27, 1713, I Sm. L. 81, absolutely.

Sections 5, 6 and 1 8 of an act entitled "An Act to establish the
judicial courts of this commonwealth, in conformity to the alter-
ations and amendments in the constitution," passed April 13, 1791,
3 Sm. L. 28, absolutely.

Section 24 of an act entitled "An Act directing the descent of



94 ORPHANS' COURT ACT SECTION 24

intestates' real estates, and distribution of their personal estates,
and for other purposes therein mentioned," passed April 19, 1794,
3 Sm. L. 143, absolutely.

Sections 40, 41 and 42 of an act entitled "An Act relating to
registers and registers' courts," approved March 15, 1832, P. L.
135, absolutely.

Sections I to 4 inclusive, 52, and 55 to 60 inclusive of an act
entitled "An Act relating to orphans' courts," approved March
29, 1832, P. L. 190, absolutely.

Sections 52 to 57 inclusive of an act entitled "An Act relative
to the organization of the courts of justice," approved April 14,
1834, P. L. 341, absolutely.

Section 4 of an act entitled "Supplement to the act passed the
twenty-ninth day of March, Anno Domini, one thousand eight
hundred and thirty-two, entitled 'An Act relating to orphans'
courts,' " approved April 14, 1835, P. L. 275, absolutely.

Section 2 of an act entitled "An Act supplementary to the
various acts relating to orphans' and registers' courts, and ex-
ecutors and administrators, and the act relating to the measure-
ment of grain, salt, and coal," approved June 16, 1836, P. L. 682,
absolutely.

Section 19 of an act entitled "An Act relating to the jurisdic-
tions and powers of courts," approved June 16, 1836, P. L. 784,
absolutely, and Sections 20, 21 and 22 of the same act in so far
as they relate to the orphans' court.

Section 8 of an act entitled "An Act to confer upon the orphans'
court of Lancaster County certain powers in relation to the real
estate of John Lindemuth, deceased, and for other purposes,"
approved April 4, 1843, P. L. 131, in so far as it relates to the
orphans' court.

Sections 2 and 3 of an act entitled "An Act relative to lien
creditors becoming purchasers at judicial sales, and for other
purposes," approved April 20, 1846, P. L. 411, in so far as they
relate to the orphans' court.

Section 2 of an act entitled "A further supplement to an act,
entitled, 'An Act relating to executions,' passed the sixteenth day
of June, one thousand eight hundred and thirty-six," approved
April 21, 1846, P. L. 430, absolutely.

Section 18 of an act entitled "An Act relating to the bail of
executrixes; to partition in the orphans' court and common



ORPHANS' COURT ACT SECTION 24 95

pleas; to colored convicts in Philadelphia; to the limitation of
actions against corporations; to actions enforcing the payment
of ground rent; to trustees of married women; to appeals from
awards of arbitrators by corporations; to hawkers and pedlers
in the counties of Butler and Union ; to the payment of costs in
actions by informers in certain cases; to taxing lands situate in
different townships ; and in relation to fees of county treasurers
of Lycoming, Clinton and Schuylkill; to provide for recording
the accounts of executors, administrators, guardians and auditor's
reports ; and to amend and alter existing laws relative to the ad-
ministration of justice in this commonwealth," became a law
April 25, 1850, by reason of the Governor's failure to return it
within ten days, P. L. 569, absolutely.

Section I of an act entitled "An Act relating to official seals,"
approved March 6, 1854, P. L. 155, in so far as it relates to the
orphans' court.

An act entitled "An Act relative to the perpetuation of testi-
mony in cases of lost records," approved April i, 1863. P. L.
205, absolutely.

Sections 2, 3, 4, and 6 to 10 inclusive of an act entitled "An
Act relating to the organization and jurisdiction of orphans'
courts, and to establish a separate orphans' court in and for
counties having more than one hundred and fifty thousand in-
habitants, and to provide for the election of judges thereof,"
approved May 19, 1874, P. L. 206, absolutely.

An act entitled "An Act authorizing the holding of orphans'
courts by other than the regularly commissioned judges in certain
cases," approved March 4, 1875, P. L. 5, absolutely.

An act entitled "An Act relating to orphans' courts," approved
March 18, 1875, P. L. 29, absolutely.

An act entitled "An Act authorizing the president or additional
law judges of the courts of common pleas to hold courts of
quarter sessions, and oyer and terminer and orphans' courts,
in certain cases," approved April 7, 1876, P. L. 19, in so far as it
relates to the orphans' court.

An act entitled "An Act to provide for the appointment of a
president judge of the separate orphans' courts, and to provide
for the commission thereof," approved May 24, 1878, P. L. 131,
absolutely.

An act entitled "An Act to regulate the compensation of au-
ditors and commissioners," approved June 4, 1879, P. L. 84, in



96 ORPHANS' COURT ACT-SucTioN 24

so far as it relates to auditors and commissioners appointed by
the orphans' court.

An act entitled "An Act to amend section three of the act of
assembly of May nineteenth, one thousand eight hundred and
seventy-four, entitled 'An Act relating to the organization and
jurisdiction of orphans' courts, and to establish a separate
orphans' court in and for the counties having more than one
hundred and fifty thousand inhabitants, and to provide for the
election of judges thereof, fixing the salaries of judges of separate
orphans' courts,' " approved June 13, 1883, P. L. 91, absolutely.

An act entitled "An Act relative to the transfer of orders and
decrees for the payment of money for the purpose of lien and
execution into other counties than those where they were original-
ly rendered," approved June 5, 1885, P. L. 78, in so far as it re-
lates to orders and decrees of the orphans' court.

An act entitled "An Act relative to the granting of citations
and rules to show cause, by the courts of this commonwealth,"
approved May 7, 1889, P. L. 102, in so far as it relates to the
orphans' court.

An act entitled "An Act requiring all public records within this
commonwealth to be kept in the English language," approved
May 31, 1893, P. L. 188, in so far as it relates to papers filed or
recorded in the orphans' court or the office of the clerk thereof.

An act entitled "An Act to authorize the judges of separate
orphans' courts to hear and determine proceedings in equity, at
the request of the judges of the common pleas," approved April
18, 1905, P. L. 208, absolutely.

An act entitled "An Act authorizing the parties in interest, or
their counsel, to select auditors and masters needed in judicial
proceedings except in divorce cases," approved April i, 1909,
P. L. 95, in so far as it relates to proceedings in the orphans'
court.

An act entitled 'An Act to provide for the taking of testimony
to be used in any of the civil courts of record in this common-
wealth of witnesses residing in any other state or in any foreign
country," approved June 8, 1911, P. L. 709, in so far as it relates
to the orphans' court.

An act entitled "An Act to authorize the judges of separate
orphans' court, at the request of the judges of the common pleas,
to hear and determine all issues in the court of common pleas,



ORPHANS' COURT ACT SECTION 24 97

courts of oyer and terminer and general jail delivery, and
courts of quarter sessions of the peace," approved July 19,
1913, P. L. 844, absolutely.

An act entitled "An Act to authorize the judges of the courts
of common pleas, of judicial districts having separate orphans'
courts, to hear and determine all matters in such courts, at the
request of the judges thereof," approved April 21, 1915, P. L.
156, absolutely.

All other acts of assembly, or parts thereof, that are in any
way in conflict with this act, or any part thereof, are hereby
repealed.



THE REVISED PRICE ACT

of
June 7, 1917, (P. L. 388)

Preliminary Note by Commission.

The Act of April 18, 1853, P. L. 503, commonly called the
Price Act, from the name of its draftsman, has been extremely
beneficial in its results and no fundamental changes have been
considered necessary. It has, however, been amended by numerous
statutes, and the Commissioners have endeavored in this revision
to arrange its provisions in more symmetrical order and to consol-
idate in it the changes that have been made from time to time.
The notes that have been annexed to the several sections in the
revised act as now reported sufficiently indicate the changes that
have been made in phraseology and those that are due to amend-
ments.

TABLE OF CONTENTS

1917 Section

Pamphlet Number

Laws Herein

The Revised Price Act, 388 167

Section I. What relief may be granted, 390 168-174

Section 2. Cases in which court may grant relief, . . 391 175-181
Section 3. Existing laws authorizing sales of real
estate, and existing powers to do any
acts enumerated in section one, not im-
paired 392 182

Section 4. Petition, citation, and notice 183

Section 5. Who shall execute decrees, 393 184

Section 6. Appointment of trustee to make sale and
invest proceeds where minors have re-
mainder interests, 185

Section 7. Effects of decree, 186

Section 8. Title transferred 187

Section 9. Payment or foreclosure of mortgage, 394 188

Section 10. Purchase- or mortgage-money, et cetera,
how held and applied ; maintenance and

education of minors, 189

Section u. Application of moneys to payment of

liens or improvement of real estate, . . 395 190
Section 12. Appointment of master to report on ex-
pediency of granting application, 191

98



REVISED PRICE ACT CONTENTS TITLE



99



1917
Pamphlet

Laws
Section 13. Bond of person or corporation carrying

out decree,

Section 14. Notice of public sales, 396

Section 15. Securing unpaid purchase-money by

mortgage,

Section 16. Acknowledgment of deeds, mortgages,

and leases,

Section 17. Effect of death, removal, disqualification,
or irregularity in appointment, of fidu-
ciary designated to carry out decree, . .

(a) Where only one fiduciary; conveyance

or mortgage,

(b) Where joint fiduciaries; conveyance or

mortgage, 397

(c) Where sale has not been effected,

(d) Effect of sale, conveyance, or mortgage,..

(e) Title of purchaser or mortgagee not

affected by revocation of letters or re-
moval of fiduciary after sale or mort-
gage made,

(f) Irregularity or defect in original appoint-

ment of fiduciary not to affect title of
purchaser or mortgagee, 398

Section 18. Sale or mortgage to the fiduciary,

Section 19. Real estate in the same or different
counties,

(a) Where real estate wholly in one county,

(b) Where real estate divided by the county

line,

Section 20. Private sales, 399

(a) Power to authorize or direct,

(b) Objections to sales,

Section 21. Return and confirmation of sales,

Section 22. Discharge of liens,

Section 23. No obligation to see to application of

purchase-money,

Section 24. Appeals, 400

Section 25. Short title section,

Section 26. Repealer, 400-3



167. TITLE.



Section

Number

Herein

192
193

194
195

196
196

197
198
199



200



2OI
202

203

203

204
205
205
206

207

208

209

2IO
211
212



AN ACT



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 10 of 71)