Raymond Moore Remick.

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

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Relating to the jurisdiction, poweis and procedure of the or-
phans' court and the court of common pleas as to sales, mort-
gages, conveyances on ground rents, leases, extinguishment of



100 REVISED PRICE ACT TITLE

ground rents, partition, exchange, squaring and adjusting of lines
between adjoining owners, consolidation and combination of min-
ing lands and the leasing thereof, the joining by owners of un-
divided interests in making and taking conveyances in order to
change the route or location of any right of way or passage over
adjoining or other lands, and the subdivison of premises so as to
command the highest price or greatest rents, and, for such pur-
pose, the laying out or dedication of roads, streets, and alleys or
the vacation of such as have not been accepted by the public
authorities, where the court shall be of opinion that such decree
will be to the interest and advantage of all those interested, and
where the legal title is held by minors, lunatics, habitual drunkards
or weak-minded persons, a married person whose spouse is a
lunatic or has abandoned him or her for one year or has been
absent and unheard of for seven years, by corporations having
no capacity to convey or by any unincorporated association, by
any religious, beneficial or charitable society or association in-
corporated or unincorporated, and the title is subject to forfeiture
if real estate is held in excess of the amount prescribed by its
charter or by law, by a corporation or individual or individuals
and is subject to a trust of any description whatever, by any
person as to whom a presumption of death may have arisen, or
any interest wherein is held by any person under legal disability
to dispose thereof ; where the legal title is an estate tail or is
subject to the lien of debts of a decedent not of record, con-
tingent remainders, executory devises, or remainders to a class,
some or all of whom may not be in being or ascertained ; where
estates shall have been devised or granted for special or limited
purposes, where there is a power of sale but the time may not
have arrived for its exercise, any preliminary act may not have
been done to bring it into exercise, the time limited for its exer-
cise may have expired, or any one or more persons required to
consent or join in its exercise may be non compos mentis, have
removed out of the state, have died, refuse to act, unreasonably
withhold consent or be absent and unheard of ; where there has
been or shall be a defective appointment in any deed or will and
the necessary power is not given to the executor, devisee or ap-
pointee to make sale and conveyance; where a trust has been
created and no power conferred on the trustee to do any of the
acts which the court is hereby empowered to authorize or con-
firm; and to the effects of such decrees.



REVISED PRICE ACT SECTION i IQI

NOTE. This act is, in substance, a revision of the Price Act of April 18,
!853, P. L. 503, with its supplements. The Commissioners acknowledge
their indebtedness to Roland R. Foulke, Esq., of the Philadelphia Bar, for
valuable assistance in the drafting of the act.

168. WHAT RELIEF MAY BE GRANTED.

SECTION i. Be it enacted by the Senate and House of Repre-
sentatives of the Commonwealth of Pennsylvania in General
Assembly met, and it is hereby enacted by the authority of the
same, That the orphans' court, in all cases where real estate, or
a ground rent issuing thereout, 1 shall be or shall have been ac-
quired by descent or last will, partly by deed and partly by descent
or last will, 2 or by purchase 3 by a trustee, executor or guardian,
and in all other cases the court of common pleas of each county
of this commonwealth, shall have jurisdiction with respect to real
estate situate within the county, and, in the cases hereinafter
specified, to authorize 4 or confirm 5 :

NOTE. This is derived from Section i of the Price Act, 4 Purd. 3999,
and supplements as noted below. It has been divided into clauses for the
sake of clearness and convenience of reference.

The following clauses are recommended for omission :

(1) Purchase of other real estate when needful (adjoining) to that
already owned by such party, or useful to the business thereon carried on
or when necessary to protect any security or rent on property exposed to
judicial sale. Provided that no corporation shall be so authorized to
purchase beyond its charter license.

(2) Every power to sell in fee simple real estate created by deed or
will shall be taken to confer authority to sell and convey, reserving
ground rents or rents in fee, and the same to release and extinguish,
according to law.



words "or a ground rent issuing thereout" are added to make clear
that the jurisdiction extends to ground rents purchased, etc.

2 These words incorporate the provisions of the supplement of April 27,

1855, P. L. 368, Section 5, 4 Purd.- 4031. The confirmatory act of April 21,

1856, P. L,. 486, Section i, 4 Purd. 4034, may be omitted.

3 The words "by purchase by a trustee, executor or guardian" are in-
serted to make clear that the jurisdiction of the orphans' court refers
to these cases, and dissipate any idea that the jurisdiction under the pre-
vious words is conferred only where the title has been acquired by gift
under a will or deed.

4 The cases in which the court may act come first in the Price Act.
The proposed revision first collects together from the act and the sup-
plements the various dispositions authorized. The advantages are that
these are all brought together and it is made clear that the court may
make any of the dispositions in any of the cases where jurisdiction is
conferred.



102 REVISED PRICE ACT SECTION i (o)

6 "Confirm." This word incorporates the provisions of the Act of April
13, 1854, P. L. 368, Section 3, 4 Purd. 4030.

See Behringer's Est., 265 Pa. in; 108 Atl. 414.

This act does not authorize the orphans' court or confer jurisdiction
thereon to ratify sales and exchanges of real estate under a trust created
by deed. The word "trustee" used in connection with the words "exec-
utor or guardian" clearly indicate that the trustee contemplated therein
is of a testamentary character or of one appointed by the orphans'
court on connection with a decedent's estate, and that it was not intended
that jurisdiction should be conferred upon the orphans' court in case
of a trust inter irivos or a trust of any other kind than testamentary in
character so that a proceeding in the orphans' court for the sale or ex-
change of lands by a trustee, who holds under a deed of trust, will not
confer marketable title. Garrison's Est., 65 P. L. *J- 77&.

A trustee appointed in another state to execute a trust created by the
will of a decedent, domiciled in that state, there being no power or direc-
tion to sell contained in the will, will not be authorized by an orphans'
court of Pennsylvania either under this act or the Fiduciaries Act to
sell real estate in this state. Jones' Est. 47 Pa. C. C. 463, 28 Dist. 282.

While under the act the court undoubtedly has power to confirm a
sale which it could have authorized, yet it cannot allow a sale not author-
ized by the act, where by will testator gave the real estate to his wife for
life with remainder to his children, whose guardian, the petitioner, had no
status with relation to the real estate. A mere averment that the sale
would be for the "best interest and advantage of the children of which
the petitioner is guardian" cannot confer jurisdiction. Maule's Est., 37
Lane. 231.

Where it is to the interest and advantage of the parties interested the
court, under this act, has authority to decree a sale of decedent's real
estate against the objections of some of the living owners who are sui
juris. Jefferies' Est., 37 Lane. 435.

Under this act the court of common pleas has jurisdiction to entertain
the petition of trustees of a church to borrow money, where due notice
of such application has been given. In re St. Joseph's Church, 49 Pa. C.
C. 315, 16 Sch. 327.

169. SALES OF REAL ESTATE, ETC.

(a) The sale, mortgaging, conveying on ground rent, and leas-
ing thereof, of the extinguishment or assignment of ground rents
issuing thereout;

The words "extinguishment or assignment of ground rents" are in-
serted to make clear that the court has jurisdiction to direct the extin-
guishment or assignment of a ground rent, as to which there is now some
doubt.

There is no need for a petition by a trustee to extinguish a ground
rent, where from the facts involved there is no room for the exercise of



REVISED PRICE ACT SECTION i (a), (6), (c), (d), (e) 103

discretion by the court and its function would become purely ministerial.
The Revised Price Act makes no change that affects the case. The words
"extinguishment or assignment of ground rents" were added to remove
a doubt that had arisen in the profession and make it clear that the court
might decree an extinguishment as well as a sale or assignment of a
ground rent in cases where the court is given jurisdiction under the
provisions of the act. Janney's Est., 27 Dist. 709.

170. AMICABLE PARTITION, ETC.

(&) The amicable partition and exchange thereof;
In the Price Act, Section I, and incorporating act of May 23, 1913,
P. L. 345, 6 Purd. 7051, in connection with the clauses in the next section
conferring jurisdiction where the legal title is held by persons under dis-
ability, fiduciaries, etc.

171. SQUARING AND ADJUSTING LINES.

(c) The squaring and adjusting of lines between adjoining
owners ;

Taken from Section 7 of the Price Act, 4 Purd. 4027. The words
"without public or private sale" are recommended for omission, as the
words "squaring and adjusting" sufficiently describe the transaction and
necessarily exclude the idea of a sale.

172. CONSOLIDATION OF MINING LANDS.

(d) The consolidation and combination of mining lands with
other adjoining mining lands, so that they shall form one tract,
and the leasing thereof in such manner that the several persons
interested therein shall be seized of undivided interests in the
whole, proportionate to their several undivided interests before
such combination and consolidation, the rents or royalties received
under the lease to be apportioned among them in like propor-
tions.

This incorporates the Act of June 8, 1874, P- L. 277, Section I, 4 Purd.
4033.

173. RIGHTS OF WAY.

(e) The joining by owners of undivided interests in making
and taking conveyances, in order to change in part or in whole
the route or location of any right of way or passage existing over
and upon adjoining or other lands

This incorporates the Act of April 18, 1864, P. L. 462, Section i, 4
Purd. 4031. The words "without public or private sale" are recommended
for omission for the reason set forth in note 8, supra.



104 DEVISED PRICE ACT SECTIONS i (/)-2

174. SUBDIVISION OF PREMISES; DEDICATION OF

STREETS.

(/) The subdivision of the premises so as to command the
highest price or greatest rents, and for such purpose, where the
premises shall admit of or require it, the laying out and dedica-
tion of roads, streets and alleys, or the vacating of such as shall
not have been paid for or received into actual use by the public,
if found to be inconvenient and to make an unprofitable division
of the property; 11

Provided, That such court shall be of the opinion that such
decree will be to the interest and advantage of all those interested
therein and without prejudice to any trust, charity or purpose
for which the real estate or ground rent shall be held and with-
out the violation of any law which may confer an immunity or
exemption from sale or alienation.

"Taken from Section 4 of the Price Act, 4 Purd. 4022.

It is necessary in order for the court to reach a conclusion that a decree
will be to the interest and advantage of those interested "that such facts
shall be set out in the petition that will enable the court to form an
opinion, such as the rental value of the property cost of maintenance in
the way of repairs, taxes, water rent and other charges and such other
facts as to dilapidation and decay, if any. It is not sufficient to say in
the petition that it is to the interest of the minor that the sale be carried
into effect. Such a statement is the opinion of the petitioner, which is,
of course, of value, but it does not meet the requirements of the court
which requires that the court shall conclude that it is for the best interest
of the minor that the sale be made ; and that conclusion can only be based
upon facts contained in the petition, or by the taking of testimony before
an auditor or the court." Scott's Estate, 49 Pa. C. C. 295.

A petition will be refused which does not disclose the name of the
proposed purchaser and is silent as to the fact that the sale can be made
without prejudice to any trust, charity or purpose for which the real
estate shall be held and without the violation of any law which may confer
an immunity or exemption from sale or alienation. Scott's Est., 49 Pa.
C. C. 295.

175. CASES IN WHICH COURT MAY GRANT RELIEF.

SECTION 2. The several courts aforesaid shall exercise the
jurisdiction conferred by Section I of this Act in all cases:

NOTE. This is derived from Section 2 of the Price Act, amended by the
Act of June 14, 1897, P. L. 144, Section I, 4 Purd. 4003.
The following clauses are recommended for omission :
Where a decedent shall have contracted by parol to sell real estate, and
those interested do not think it expedient to plead the statute requiring



REVISED PRICE ACT SECTION 2 (a) 105

such contracts to be in writing to enable the purchaser to recover the real
estate agreed to be sold. When real estate shall have been purchased or
any ground rent reserved and be held by any person acting in a trust of
fiduciary capacity. Section 2 of the Price Act.

Whenever in proceedings in partition in equity it shall appear that real
estate cannot be divided without prejudice to the interests of the owners.
This clause is recommended for omission at it is now superflous in view
of the provisions of the Act of March 14, 1857, P. L. 97, Section 3, and
the later statutes relating to partition in equity. See Act of July 14, 1897,
P. L. 268, 3 Purd. 3417.

176. TITLE IN MINORS, ETC.

(a) Where the legal title is held: (i) By minors, lunatics or
habitual drunkards, so duly found by inquisition, or by weak-
minded persons for whom guardians have been appointed. 1 (2)
*By a wife whose husband is a minor, or by a married minof
whose spouse is a minor, or by a married woman or married man
whose spouse is a lunatic, or has abandoned him or her for one
year or has been absent and unheard of for seven years. 2 (3)
By corporations of any kind having no capacity to convey or by
any unincorporated association. 3 (4) By any religious, beneficial
or charitable society or association incorporated or unincorporated,
and the title is subject to forfeiture if real estate is held in excess
of the amount prescribed by its charter or now or hereafter pre-
scribed by law. 3 (5) By a corporation of any kind or individual
or individuals and is subject to a trust of any description what-
ever. 4 (6) By any person who may have been absent and
unheard from for seven years under those circumstances from
which the law would presume his or her decease. 5 (7) Or any
interest therein is held by any person under legal disability to
dispose thereof. 6

x The words "or weak minded persons" have been added; but it is not
intended that the provisions of Section 6 of the Act of May 28, 1907,
P. L. 292, 6 Purd. 6569, should be repealed.

2 This section throws together and makes similar the provisions as to
the disability of the spouse of a married man or a married woman. The
case of the minority of the wife is omitted as unnecessary in view of the
Act of March 22, 1865, P. L. 30, i Purd. 1155. In providing for the case
of a woman with a lunatic husband, this section incorporates to that
extent, the ambiguous Act of April n, 1866, P. L. 780, 4 Purd. 4034, which
extends only to the common pleas.



*That portion of clause (2) in italics was added by the amendatory
Act of May 2, 1919, (P. L. in).



106 REVISED PRICE ACT SECTION 2 (a) .

3 Several cases are to be provided for (a) Corporations having no
capacity to convey, a very rare case; (&) Unincorporated societies, etc.,
which could not convey at law; (c) Incorporated and unincorporated re-
ligious societies, etc., which may hold real estate in excess of the amount
prescribed by law. The words of the Price Act are "Where real estate
shall be held for or owned by * * * religious, beneficial or charitable
societies or associations, incorporated or unincorporated," which words
do not make clear just what the exact jurisdiction conferred is.

4 This is designed to cover all cases of trusts and make unnecessary
the words of the Price Act which are as follows : "When real estate
shall be held for minors, lunatics, habitual drunkards so declared by
inquisition * * * the sole and separate use of married women, for
religious, beneficial or charitable societies or associations, incorporated
or unincorporated, or for any other corporation, or by trustees for any
public or private use or trust, and generally in all cases where estates
have been or shall be devised or granted in trust or for special or limited
purposes."

6 Taken from Price Act, no change.

Taken from Price Act.

Title held under a declaration of trust whereby the legal owner agrees
to convey the real estate "unto any person or persons named and desig-
nated" "upon request or requests made to us in writing" by the equitable
owner, who subsequently died, is not held under a trust contemplated by
clause (5) authorizing the court to act where property is "subject to a
trust of any description whatever." The trust here is passive. All pos-
sible purposes of the trust ended on the death of the equitable owner.
Title vested in her heirs or devisees whose remedy is by partition.
Behringer's Est., 265 Pa. in; 108 Atl. 414.

Under clauses (3) and (4) the court of common pleas has jurisdiction
to entertain the petition of the trustees of a church to borrow money,
where proper notice of such application has been given. In re St. Joseph's
Church, 49 Pa. C. C. 315, 16 Sch. 327.

Where an orphan house was created by a will, whereunder it was pro-
vided that no part of the estate should ever be sold or in any manner be
severed from the orphan house, but that it should remain united thereto
whole and undivided forever, but the testator also added in another part
of his will "so far as human frailties will permit," the court decided
on a petition by the charitable corporation, trustee, for permission to lay
out in lots to be sold at public sale subject to ground rent a certain tract
unimproved and unproductive for a long time, yielding insufficient revenue
to pay the taxes, after due notice and hearing and it appearing to be to the
best interest of the trust estate that, under the above section of the
Revised Price Act and generally from the intent of the whole act itself
said petition should be granted and in so holding the court said :

"In Pennsylvania, prior to 1853, such matters were disposed of by the
Legislature. In that year the power was placed in the court by the Price
Act (April 18, 1853, P. L. 503) which, in the preamble provided:

" 'Whereas, The general welfare requires that real estate should be freely
alienable, and be made productive to the living owners thereof. And,



REVISED PRICE ACT SECTION 2 (a), (&) 107

whereas, in matters which the judiciary is competent to hear and decide,
it is expedient that the courts should adjudicate them after a full hearing
of all parties rather than that they should be determined by special
legislative acts and upon ex parte hearing.'

"This authority is now given by the Revised Price Act of June 7, 1917,
P. L. 388.

"Concerning this legislation, it was said by Agnew, J., in Burton's
App. 57 Pa. 213-219: 'The design is well expressed in the preamble of the
act, to make real estate freely alienable and productive to the living owners
thereof. Though not unmindful of the future, and of the duty owing to
posterity, the special interests of society belong to the men of today,
rather than to those of another generation. The intention of this law is
manifestly to unite the cords which fetter the real estate of the common-
wealth, whether bound around it by the disabilities of persons, the limita-
tions of contingent interests, or by restrictions to limited uses and pur-
poses, and at the same time to preserve to every interest its proper share
in the result. This law being beneficent and remedial is not to be so
construed as to defeat its main intent."

"After considering all of the authorities above quoted, we are of
opinion that this court has authority under the Revised Price Act of 1917,
to grant the prayer of this petition, and it is so ordered." Frey's Est.,
50 Pa. C. C. 468. See also Myers v. Crick, 271 Pa. 399.

177. ESTATES TAIL AND REMAINDERS.

(&) Where the legal title is an estate tail or is subject to
contingent remainders, executory devises, or remainders to a
class, some or all of whom may not be in being or ascertained at
the time of the entry of the decree.

In this clause are thrown together all cases of legal limitations of the
title, and the language incorporates, so far as gifts to a class are con-
cerned, the provisions of the Acts of June 14, 1897, P. L. 144, Sec. i, 4
Purd. 4003 ; June 15, 1897, P. L. 159, 4 Purd. 4033. The Act of June 14
provides for vested remainders which are liable to open and let in after-
born children. The Act of June 15 provides for "Lands * * * devised
or granted for life or for the life of another, and with remainder limited
to a class of persons, some or all of whom may not be in being at the
time of the decree." "The entry of the decree." These words are better
English than the words "the time of the decree," which were probably
sufficiently plain. The words "or ascertained" are added because a case
may occur of a remainder to a class of persons in being but not ascer-
tained, e. g. "remainder to the children of my daughter living at the time
of her death." The children born are in being but not ascertained as the
ones who will take at the death of the daughter.

The words "the lien of debts of a decedent not of record" are omitted
in line 2, this provision seeming to be unnecessary since the lien has been
reduced by the Fiduciaries Act to one year (see 418 infra}.

See Patterson v. Reed, 260 Pa. 319, 103 Atl. 735.



log REVISED PRICE ACT SECTION 2 (c), (rf), (*)., (/)

178. ESTATES FOR SPECIAL PURPOSE.

(c) In all cases where estates shall have been devised or
granted for special or limited purposes.

These words may appear to be superfluous, but it is thought best to
retain them.

179. INCOMPLETE POWER OF SALE.

(rf) Where there is a power of sale but (i) the time may not
have arrived for its exercise, (2) any preliminary act may not
have been done to bring it into exercise, (3) the time limited for
its exercise may have expired, (4) any one or more persons
required to consent or join in its exercise may be a minor, non
compos mentis, removed out of the state, have died, refuse to
act, unreasonably withhold consent, or be absent and unheard of.

Taken from the Price Act. The words "be absent and unheard of"
are added. The words "a minor" are inserted to give, in cases under
this Act, the power conferred by Section 15 of the Act of July 27, 1842,
P. L. 439, 4 Purd. 4885, upon the common pleas.

Where petitioner, surviving trustee under a declaration of trust, has
no "power of sale" but only an obligation "to convey the real estate
described upon request or requests made in writing," she has no dis-
cretion in the matter and her duty is to obey the wish or whim of the real
owners, whether she believes it to be wise or otherwise, provided only it
is expressed "in writing." Such a matter is not within the contemplation
of this section of the Act. The trust is passive and title vested in the
equitable owners. Behringer's Est., 265 Pa. in, 108 Atl. 414.

180. DEFECTIVE APPOINTMENT.

(0) Where there has been or shall be a defective appointment
in any deed or will and the necessary power is not given to the
executor, devisee or appointee to make sale and conveyance of
real estate.

Taken from Section 2 of the Price Act.

181. TRUST WITHOUT POWER OF SALE.

(/) Where a trust has been created and no power conferred
on the trustee to do any of the acts which the court is em-



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 11 of 71)