Raymond Moore Remick.

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

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powered to authorize or confirm under the provisions of Section
i hereof. 11

Such jurisdiction may be exercised whether the ownership or
interest in real estate be held in severally, joint tenancy or ten-



REVISED PRICE ACT SECTIONS 2 (/)-3-4 109

ancy in common, or by husband and wife as tenants by entire-
ties. 12

"Added because the case where a trustee has no power of sale is not
expressly covered by the Price Act.

12 The word "coparceny" in the original act is omitted, as this tenancy is
unknown in Pennsylvania.

This clause relates only "to a trust which is valid and subsisting at the
time relief is sought and not to one which is purely passive, or having
once been active has ceased and determined." Hence, title held under a
declaration of trust whereby the legal owner agrees to convey the real
estate "unto any person or persons named and designated upon request
or requests made in writing" by the equitable owner, who subsequently
died, is not held under a trust contemplated by this section. The trust
here is passive. All possible purposes of the trust ended on the death of
the equitable owner and title then vested in her heirs or devisees whose
remedy is by partition. Behringer's Est., 265 Pa. in, 108 Atl. 414. See
also Myers v. Crick, 271 Pa. 399.

182. EXISTING LAWS NOT IMPAIRED.

SECTION 3. Nothing herein contained shall be taken to repeal
or impair the authority of any act of assembly, general or
private, authorizing the sale of real estate by decree of court or
otherwise, nor to affect or impair any rights or powers, otherwise
existing in any person or corporation to do any of the acts which
the court is empowered to authorize or confirm under the pro-
visions of Section I of this Act.

NOTE. This is derived from Section 2 of the Price Act, amended by
Act of June 14, 1897, P. L. 144, 4 Purd. 4003, 4016.

183. PETITION CITATION AND NOTICE.

SECTION 4. All jurisdiction conferred by this act on the or-
phans' court or the court of common pleas shall be exercised
on the petition of any party in interest supported by oath or
affirmation; and if all proper parties shall not voluntarily appear
as petitioners or respondents, the court shall fix a day for them
to appear and cause a citation to be served on all persons in
being who shall not have appeared, and who shall have any
present or expectant interest in the premises, warning them to
appear, and that they shall be heard on the day designated, and
for those who cannot otherwise be served, cause advertisement
to be made in manner most likely to afford notice, and service
made in any part of the United States and the territories and
possessions thereof, or elsewhere, with oath or affirmation of the



1 10 REVISED PRICE ACT SECTIONS 4-5-6

fact, taken before any judge or justice of the peace or notary
public, or any person authorized by the laws of the United States
to take oaths or affirmations in foreign countries, and filed of
record, shall be good service. Service having been made as
aforesaid, the court shall, on the day fixed, make such decree as
shall be proper in the premises. Guardians shall be notified" and
appear for their wards; and if minors have no guardian, the
court may appoint one for them in the manner now or hereafter
prescribed by law for the appointment of guardians, and such
appointment may be made on the petition of any party interested
with notice to the persons who shall by law be charged with the
duty of petitioning for the appointment of a guardian. Commit-
tees and guardians shall be notified and appear for lunatics, habit-
ual drunkards and weak-minded persons, and in each of such cases
notice shall be given to the next of kin. Trustees shall be notified
and appear for the cestuis que trust, provided that cestuis que trust
of age and sound mind, having vested interests or interests subject
to a condition precedent, shall also be notified, and all cestuis que
trust not in being or unascertained shall be represented by the
trustees aforesaid.

NOTE. This is founded on Section 3 of the Price Act, 4 Purd., 4017,
and has been extended to include parties in interest in foreign countries
or to authorize service in foreign countries.

See forms 58 to 66. See Act of July u, 1917, (P. L. 790) Sees. 624-5
infra.

184. WHO SHALL EXECUTE DECREE.

SECTION 5. In all cases where, under the provisions of this
Act, sales, mortgages, leases, or conveyances on ground rent shall
be authorized or directed, the same shall be made by executors,
administrators, guardians, trustees, committees or owners having
a present vested interest, or trustees appointed for the purpose,
as the court may order.

NOTE. This is founded on a part of Section 4 of the Price Act, 4 Purd.
4019, with the addition of the provision as to trustees appointed for the
purpose.

185. APPOINTMENT OF TRUSTEES TO MAKE SALE

AND INVEST PROCEEDS WHERE MINORS
HAVE REMAINDER INTERESTS.

SECTION 6. Where lands and tenements are held by will or
otherwise, for life or pur autre vie, by any person or persons,



REVISED PRICE ACT SECTIONS 6-7 m

with remainder to any minor or minors, and it shall appear to the
court of the proper county, that it would be to the interests of
such minor or minors that the same should be sold, in every such
case upon the application of the tenant or tenants for life, or
pur autre vie, as the case may be, the said court shall appoint a
trustee to make sale of said lands; and the said trustee shall
receive and hold the proceeds of such sale in trust for the parties
in interest therein, and shall invest the same in investments
authorized by law, and shall pay the interest thereof, as it shall
accrue, to the tenants for life, or pur autre vie, until the estate for
life, or pur autre vie, shall have terminated, and shall then pay
over the principal sum to the person or persons entitled to such
remainder.

NOTE. This is Clause II of Section i of the Act of April 3, 1851, P. L.
305, I Purd. 1119, altered by substituting "invest the same in investments
authorized by law" for ''loan the same upon good real estate security,
upon bond and mortgage," and by omitting the word "orphans' " in the
fourth line, and the reference to confirmation of the sale.

The remainder of Section i, and Sections 2, 3 and 4 of the Act of
1851 are recommended for repeal as being sufficiently covered by other
sections of the present draft.

See form 67.

186. EFFECTS OF DECREE.

SECTION 7. Every such decree made by the court shall have
the effect as to the title authorized to be transferred (a) Of a
common recovery to bar an estate tail or a remainder, whether
contingent or to a class. (&) Of barring executory devises, (c)
Of defeating the right of the commonwealth to forfeit real estate
that may have been held by or for any corporation in excess of
the amount now or hereafter duly authorized by law, only, how-
ever, in the case where no proceedings to procure a forfeiture
shall have been commenced before the filing of the petition, (rf)
Of discharging the lien of decedents' debts not of record. In
all cases where the proceedings shall be for the purpose of freeing
the title of any of the limitations or def easibility described in this
section, that purpose shall be set forth in the petition in addition
to the explanation of the title.

NOTE. This is derived from Sections 5 and 6 of the Price Act, 4 Purd.
4024-5. The jurisdiction to sell for the purpose of discharging the lien
of debts not of record is omitted above as unnecessary, but this does not
prevent the discharge of such liens by a sale under the Act, In the



112 REVISED PRICE ACT SECTIONS 7-8-9

last sentence, "or liens" is omitted after "limitations," and "ordefeasibility"
substituted.

187. TITLE TRANSFERRED.

SECTION 8. The title transferred in pursuance of any such
decree of the court shall be such as is authorized in the decree,
which title shall be indefeasible by any person ascertained or
unascertained or any class of persons mentioned in the petition
or decree and having a present or expectant interest in the
premises and shall be unprejudiced by any error in the proceed-
ings -of the court, and where security shall be entered in accord-
ance with the provisions hereof, no party who shall pay over
money in pursuance of the decree of the court shall be liable to
see to the application thereof, or be in any manner liable for or
affected by any lien of debts of a decedent not of record, or by
any trust, limitation of, or defects in the title set out in the
petition or decree in pursuance of which the money is paid over.

NOTE. This is derived from Section 5 of the Price Act, 4 Purd. 4023.

188. PAYMENT OR FORECLOSURE OF MORTGAGE.

SECTION 9. In all cases where the court shall authorize or
confirm the making of a mortgage, in any of the cases provided
for in this Act, the title shall upon the mortgage being duly paid
and satisfied of record revert to its former condition, except that
nothing herein contained shall operate to extend the lien of the
debts of a decedent not of record beyond the time now or here-
after allowed by law, and upon legal proceedings being brought
upon the mortgage or bond accompanying the same as may now
or hereafter be provided by law and the title being sold at sheriff's
sale, in pursuance of such proceedings, the surplus proceeds of
the sale, if any, after paying the mortgage, with interest and all
costs, and liens, which may by law be payable out of the fund,
shall be paid over to the party who made the mortgage, or such
other person as the court may direct or appoint for that purpose,
to be held by him as part of the mortgage money and subject
to the same liens or limitations, provided that the sheriff shall not
pay over any such sum until such additional bond shall be filed
as the orphans' court may require under the circumstances of
the case.

NOTE. This is a new section, covering matters not provided for in the
Price Act.

See Myers v. Crick, 271 Pa. 399,



REVISED PRICE ACT SECTION 10 113

189. PURCHASE OR MORTGAGE MONEY, ETC.
HOW HELD AND APPLIED; MAINTENANCE
AND EDUCATION OF MINORS.

SECTION 10. The purchase money, mortgage money, ground or
other rents reserved or the title received in the case of an ex-
change or partition, for the title subject to a lien or limitation,
shall be held for and applied to the use and benefit of the same
persons and for the same interests, legal or equitable, present or
future, vested, contingent or executory as the title so sold, mort-
gaged, conveyed on ground rent, let, partitioned or exchanged
had been subject or held excepting only the case of an estate tail
or the title of a corporation subject to forfeiture which in each
case shall by the proceedings, without the necessity of a bond
being filed by either the corporation or the tenant in tail, be con-
verted into an absolute estate in fee-simple and all remainders,
whether contingent or to a class, executory devises, and debts of a
decedent not of record shall be transferred to the fund or title
raised by the proceedings in pursuance of the decree, as to which
fund or title they shall take effect in like manner as they would
have taken effect as to the title transferred under the decree.
The court shall make such order or orders from time to time as
to the distribution or investment of such funds as may be requisite
to protect the interest of all persons who are or may become
entitled thereto or to any part thereof. In every case of a sale,
mortgage, lease or conveyance on ground rent under the pro-
visions hereof, the purchase money, mortgage money, ground
rent or other rents reserved shall nevertheless have and retain
the quality of real estate as respects the devolution under the
intestate laws of the interest of any infant, lunatic, or person
non compos mentis as whose property the land was sold, mort-
gaged, leased or conveyed on ground rent. The court having
jurisdiction may direct the application of such proceeds or part
thereof for the maintenance and education of minor parties whose
personal estate shall be insufficient for such purposes, or gen-
erally for the maintenance or education of parties having the like
interests vested or expectant, provided such moneys can be equally
and equitably so applied and without diminution of the capital
that may of right become the property of parties having unbarred
interests or title in remainder, or by executory devise.

NOTE. This is derived from Section 6 of the Price Act, 4 Purd. 4025,
and Section 2 of the Act of June 15, 1897, P. L. 159, 4 Purd. 4033.

8



H4 REVISED PRICE ACT SECTIONS 11-12-13

190. APPLICATION OF MONEYS TO PAYMENT OF

LIENS OR IMPROVEMENT OF REAL ES-
TATE.

SECTION ii. No principal moneys raised by sale or mortgage,
MS aforesaid, shall be expended for any other purpose than for
the payment of liens upon or the improvement of the same real
estate when mortgaged, or other real estate when held for the
same uses and persons, except as provided in Section 10 of this
Act; and it shall be the duty of the court to decree the proper
application of all purchase moneys and rents, with the aid of an
auditor when deemed necessary, to the discharge of liens and to
parties interested, as and when they may be entitled.

NOTE. This is part of the proviso to Section 6 of the Price Act, 4
Purd. 4025.

191. APPOINTMENT OF MASTER TO REPORT ON

EXPEDIENCY OF GRANTING APPLICA-
TION.

SECTION 12. In all cases where an application shall be made
to the court for a decree authorized under any of the provisions
of this Act, the court may appoint a suitable person as master to
investigate the facts of the case, and to report upon the ex-
pediency of granting the application and, in cases where authority
is asked to make a sale or mortgage, upon the amount to be raised
thereby ; and upon such report being made, the court may decree
accordingly.

NOTE. This is copied from Section 16 (?) of the Fiduciaries Act (see
436 infra.

See Act of July n, 1917 (P. L. 790) Sees. 624-5 infra.

192. BOND OF PERSON OR CORPORATION CARRY-

ING OUT DECREE.

SECTION 13. In all cases where the carrying out of any decree
of the court under the provisions of this Act shall involve the
receipt of money by the person carrying it out, the court shall
direct the person acting under the decree to file a bond to the
commonwealth in a sufficient amount conditioned for the proper
application of all moneys to be received, which bond shall inure
to the benefit of all parties interested and be executed by two
individual sureties or by one corporate surety, approved by the



REVISED PRICE ACT SECTIONS 13-14 115

court, and before any such decree shall be executed, such bond,
with sureties as may be required, shall be filed : Provided, That
where a corporation duly authorized by law, shall be designated
to carry out any such decree, the court may, in lieu of security
as aforesaid, permit such corporation to enter its own bond with-
out surety.

NOTE. This is copied from Section 16 (/) of the Fiduciaries Act (see
437 infra) which is founded in part on Section 6 of the Price Act, 4 Purd.
4026.

Section 10 of the Price Act, 4 Purd. 4029, reads as follows: "The
directions given in the sixth section of this Act in regard to the security
to be given in cases of sales, mortgage, or letting of real estate, and the
condition of the bond or security therein prescribed, shall apply to all
cases of sales or mortgage of real estate by order of the courts of this
commonwealth : Provided, That no decree for the sale, mortgaging, or
letting of any real estate under the provisions of this Act, shall be made
except when the president of the court, or the law judge or judges thereof,
shall be present, and that the acts in relation to special courts, where the
president judge shall be interested, related to parties in interest, or
otherwise incapable of acting, shall apply to all such provisions."

This section was apparently introduced in the Price Act to cure the
inconsistency between Sections 4 and 6: Thorn's Appeal, 35 Pa. 47. The
Commissioners recommend its repeal as unnecessary in the Revised Act.

See form 23.

Upon the entry of such security the court of common pleas has juris-
diction to entertain the petition of the trustees of a church to borrow
money due notice of such application having been given. In re St.
Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327.

193. NOTICES OF PUBLIC SALES.

SECTION 14. Whenever, by the provisions of this Act, it shall
be lawful for the court to order the public sale of real estate,
public notice of such sale shall be given by the person who is to
make the sale, once a week for a period of three weeks before
the day appointed therefor, by advertisement in at least one
newspaper published in the county, if there be one, or if there be
none, then in an adjoining county; and in all cases, notice shall
also be given by handbills, one of which shall be posted at a
conspicuous place on the real estate proposed to be sold, and at
least three of which shall be posted at three of the most public
places in the vicinity of such estate.



u6 REVISED PRICE ACT SECTIONS 14-15-16-17(0)

NOTE. This is copied from Section 16 (g) of the Fiduciaries Act (see

438 infra) and, for the sake of uniformity, is substituted for the pro-
visions of Section 4 of the Price Act, 4 Purd. 4031.

194. SECURING UNPAID PURCHASE MONEY BY

MORTGAGE.

SECTION 15. Whenever, under the provisions of this Act, the
court has power to authorize or confirm a sale of real estate, the
same may be made upon such terms as the court shall approve,
all unpaid purchase money to be secured on the premises by
mortgage.

NOTE. This is copied from Section 16 (h) of the Fiduciaries Act (see

439 infra) which is derived in part from Section 4 of the Price Act, 4
Purd. 4022.

195. ACKNOWLEDGMENT OF DEEDS, MORTGAGES

AND LEASES.

SECTION 16. All deeds, mortgages or leases executed in pur-
suance of any decree of the court under the provisions of this Act
may be acknowledged before any officer or person now or here-
after authorized by the laws of this commonwealth to take the
acknowledgment of deeds and other instruments of writing to be
recorded therein.

NOTE. This section is designed to make the law relating to the ac-
knowledgment of instruments executed under the authority of the Act
similar to the general law prevailing in such cases. There seems to be
no reason now for making any special distinction as to the acknowledg-
ment of such instruments. The various acts supplementing the Price Act
relating to acknowledgments are as follows:

Act of April 13, 1854, P. L. 368, Section I, 4 Purd. 4029; April i, 1863,
P. L. 187, 4 Purd. 4031; March 23, 1867, P. L. 43, Section i, 4 Purd.
4032; April 17, 1866, P. L. 108, as amended by Act of April 22, 1903,
P. L. 241, 4 Purd. 4031.

196. EFFECT OF DEATH, ETC., OF FIDUCIARY

DESIGNATED TO CARRY OUT DECREE
WHERE ONLY ONE FIDUCIARY.

SECTION 17. (a) In all cases where the sale of real estate shall
be made by an executor, administrator, guardian or trustee under
an order of, or confirmed by, the court, or where the making of
a mortgage by such fiduciary shall be authorized by said court,
and the letters testamentary or of administration shall be re-



REVISED PRICE ACT SECTION 17(0), (&) 117

voked, or the executor, administrator, guardian or trustee shall
be removed, or shall die, or become insane, or otherwise be in-
capable, before a conveyance is made to the purchaser, or before
a mortgage is executed and delivered, it shall be lawful for the
successor of such executor, administrator, guardian or trustee,
having first given security, to be approved by the said court, for
the faithful appropriation of the proceeds of such sale, to execute
and deliver to the purchaser a deed of conveyance for the estate
so sold, on the purchaser's full compliance with the terms and
conditions of sale, or to execute and deliver said mortgage. If
there shall be no such successor who shall have given security as
aforesaid, the said court shall have power, on petition of the
purchaser, to direct the clerk of the court to execute and deliver
to the purchaser the necessary deed of conveyance, on his full
compliance with the terms and conditions of sale, paying into
court the moneys payable, and executing and delivering to the
clerk any bond and mortgage required by the said terms and
conditions, which moneys and bond and mortgage shall remain
subject to the disposition of the court; or, where the making of
a mortgage by a fiduciary shall be authorized by said court, the
court, under the circumstances aforesaid, shall have power to
direct the clerk of the court to execute and deliver such mortgage.
The like proceedings may be had where an executor, adminis-
trator, guardian or trustee shall neglect or refuse to execute and
deliver such deed or mortgage for the space of thirty days after
due notice of an order of the court requiring him to execute and
deliver the same.

NOTE. This is modeled upon Section 16 (/) I of the Fiduciaries Act
(see 441 supra).

197. WHERE JOINT FIDUCIARIES.

(&) In all cases where the sale of real estate shall be made by
co-executors, co-administrators, co-guardians or co-trustees under
an order of, or confirmed by, the court, or where the making of
a mortgage by such co-fiduciaries shall be authorized by said
court, and if one or more of such co-fiduciaries shall be removed,
or shall die, or become insane, or otherwise be incapable, before
a conveyance is made to the purchaser, or before such mortgage
is executed and delivered, said court may, upon the facts being
made to appear by petition duly verified, authorize the surviving
or remaining fiduciary or fiduciaries to execute and deliver to the



Ii8 REVISED PRICE ACT SECTION 17 (b), (c), (d), (e)

purchaser a deed of conveyance for the real estate so sold, on
the purchaser's full compliance with the terms and conditions of
sale, or to execute and deliver such mortgage.

NOTE. This is modeled upon Section 16 (/) 2 of the Fiduciaries Act
(see 442 infra).

198. WHERE SALE HAS NOT BEEN EFFECTED.

(c) Where authority is or shall be given by decree of any court
to executors, administrators, guardians or trustees to sell real
estate, and any of such executors, administrators, guardians or
trustees shall have died, been removed, become insane or other-
wise be incapable, or cease to act, before a sale is effected, in all
such cases said court may, upon the facts being made to appear by
petition duly verified, authorize the surviving or remaining fidu-
ciary or fiduciaries to effect such sales, with as full effect in all
particulars, as if effected or executed by the executors, adminis-
trators, guardians or trustees in office at the time the sale was
originally decreed.

NOTE. This is modeled upon Section 16 (/) 3 of the Fiduciaries Act
(see 443 infra).

igg. TITLE OF PURCHASER OR MORTGAGEE NOT
AFFECTED BY REVOCATION OF LETTERS
OR REMOVAL OF FIDUCIARY AFTER SALE
OR MORTGAGE MADE.

(d) Every sale made, and every deed or mortgage executed
and delivered in pursuance of, and agreeably to the provisions of
this section shall vest the property therein described in the
grantee or mortgagee, as fully and effectually as if the same
had been made, executed and delivered by all the fiduciaries to
whom the authority to sell or mortgage was originally given.

NOTE. This is copied from Section 16 (;') 4 of the Fiduciaries Act
(see 444 infra).

200. EFFECT OF SALE, CONVEYANCE OR MORT-
GAGE.

(e) In all cases of sales or mortgages under the order of, or
confirmed by the court, the title of the purchaser or mortgagee
shall not be affected by the subsequent revocation of the letters
testamentary or of administration of the executor or adminis-
trator making such sale or mortgage, or by the subsequent re-



REVISED PRICE ACT SECTIONS 17 (*), (/)-i8 119

moval of the executor, administrator, guardian or trustee making
such sale or mortgage.

NOTE. This is copied from Section 16 (/) 5 of the Fiduciaries Act
(see 445 infra).

201. IRREGULARITY OR DEFECT IN ORIGINAL AP-

POINTMENT OF FIDUCIARY NOT TO AF-
FECT TITLE OF PURCHASER OR MORT-
GAGEE.

(/) Whenever, in pursuance of proceedings in the court of any
county, any person therein described as a trustee, guardian,
executor, administrator, or as standing in any other fiduciary
relation to the parties interested, shall grant and convey or mort-
gage any real estate, in which proceedings security shall be duly
entered by him or her, under the order or decree of the court, no
irregularity or defect in his or her original appointment, or the



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 12 of 71)