Raymond Moore Remick.

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

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absence of any proper qualification in respect thereto, shall affect
the title of the grantee, purchaser or mortgagee or the liability of
the sureties, but the same shall be as valid in all respects as if
such irregularity or defect had not existed.

NOTE. This is copied from Section 16 (;') 6 of the Fiduciaries Act
(see 446 infra).

202. SALE OR MORTGAGE TO THE FIDUCIARY.

SECTION 1 8. Whenever any court, having jurisdiction under
this act to decree a sale or mortgage of real estate, shall issue its
order to any executor, administrator, guardian or trustee, specially
appointed for the purpose or otherwise, to sell or mortgage such
real estate, and shall, in any case within its jurisdiction, give
authority to any executor, administrator, guardian or trustee, to
bid at such sale, and shall confirm the sale to such fiduciary or
shall authorize the making of such mortgage to any executor,
administrator, guardian or trustee, the said court may make an
order directing its clerk to execute a deed or mortgage, as the
case may be, for said real estate to such purchaser or mortgagee,
who shall give security and shall account for the amount of said
purchase money or mortgage money, in the settlement of his
accounts, to said court.

NOTE. This is copied from Section 16 (&) of the Fiduciaries Act
(see 447 infra).

See form 68.



120 REVISED PRICE ACT SECTIONS 19 (a), (&)-2o(a)

203. REAL ESTATE IN THE SAME OR DIFFERENT
. COUNTIES, WHERE WHOLLY IN ONE

COUNTY.

SECTION 19. (a) In all proceedings under the provisions of this
act, where the real estate shall lie wholly within one county, the
petition shall be presented only in the court of that county.

NOTE. This is a new clause in accordance with the proviso to Section I
of the Price Act.

204. WHERE REAL ESTATE DIVIDED BY COUNTY

LINE.

(b) When an application shall be made, under the provisions
of this act, for the sale, mortgaging, leasing or other proceedings
relating to real estate, through which real estate the line dividing
two or more counties runs, the court of the county in which the
mansion house is situated, or, if there be no mansion house, the
court of the county where the principal improvements may be, or,
if there be no improvements, the court of either county, may
exercise jurisdiction as to the whole of such real estate, irrespec-
tive of the county line; and any such sale, mortgaging, leasing
or other decree relating to real estate, shall be as effectual as if
the whole of such real estate had been within the county whereof
said court has jurisdiction. Notices of said proceedings, as re-
quired by this act, shall be given in all the counties in which the
land is situated, and a certified copy of all proceedings shall be
filed in the proper court of each county in which said land is
situated. Any mortgage taken to secure the purchase money,
or any part thereof, shall be duly recorded in each of the counties
in which said lands lie, as required by law.

NOTE. This is derived from Section I of the Act of May 28, 1915, P. L.
635, 6 Purd. 7286, supplementary to the Price Act. The last two sentences
have been made uniform with the provisions of Section 16 (/) 2 of the
Fiduciaries Act (see 449 infra).

205. PRIVATE SALES, POWER TO AUTHORIZE OR

DIRECT.

SECTION 20. (a) The courts of the several counties of this
commonwealth, in all cases where, under the provisions of this
act, such courts have power to order the sale of real estate, may
authorize or direct a private sale, if, in the opinion of the court,



REVISED PRICE ACT SECTIONS 20 (a), (&)-2i 121

under all the circumstances, a better price can.be obtained at
private than at public sale, as where the interest shall be un-
divided, or for any other sufficient cause.

NOTE. This is copied from Section 16 (m) i of the Fiduciaries Act
(see 450 infra) and is intended to supersede so much of Section 4 of
the Price Act as authorizes private sales.

206. OBJECTIONS TO SALES.

(&) Any party interested as heir, devisee or intending pur-
chaser, or any legatee whose legacy is, by the express terms of
the will, or by law, charged on such real estate, may appear and
object to such private sale on account of the insufficiency of the
price, and, if such objection be sustained, may offer to give or
pay a substantial increase for such property, and the court, at its
discretion, may thereupon authorize or direct such sale, or refuse
to authorize or direct the same, and accept any substantially
increased offer, and may authorize the sale of such property to
such new bidder upon compliance with the conditions of sale and
giving such security as shall be directed by the court; or, such
party interested or legatee may appear as aforesaid and object
to such sale on any legal or equitable grounds: Provided, That
nothing herein contained shall be construed to affect the existing
law with respect to objections to public sales.

NOTE. This is modeled upon Section 16 (m) 3 of the Fiduciaries Act
(see 452 infra).

Under this section of the Act, a third person, desirous of purchasing
the property and willing to pay more than the price set forth in the
petition may appear and object to the confirmation of the sale and it is
the duty of the court to accept any substantially increased offer over that
offered by the purchaser in the petition. In the absence of a rule of
court to govern the procedure as a matter of practice, offers should be in
writing accompanied by a certified check for the increase. It was never
intended that the parties should make oral bids in open court. Mauch's
st., 47 Pa. C. C. 490, 67 P. L. J. 308, 16 North, 405, 33 York 45.

207. RETURN AND CONFIRMATION OF SALES.

SECTION 21. All public sales of real estate under the pro-
visions of this act shall be subject to confirmation by said court;
but in the case of private sales authorized or directed under the
provisions of this act, no return or confirmation shall be necessary.

NOTE. This is modeled upon Section 16 (n) of the Fiduciaries Act
(see 453 infra).



122 REVISED PRICE ACT SECTIONS 22-23-24

208. DISCHARGE OF LIENS.

SECTION 22. All public sales of real estate under the provisions
of this act shall have the effect of judicial sales as to the discharge
of liens upon the real estate so sold; but private sales shall not
discharge the liens of debt of record.

NOTE. This section is substituted for the provision of Section 5 of the
Price Act that "by every such public sale the premises sold shall be dis-
charged from all liens," and the provision of Section 2 of the supplement-
ary Act of March 23, 1867, P. L. 43, 4 Purd. 4032, that private sales "shall
discharge the premises sold from the lien of the debts of the decedent,
except debts of record, and debts secured by mortgage; Provided, That
the security, required" by the Price Act "shall have been duly entered.

209. NO OBLIGATION TO SEE TO APPLICATION OF

PURCHASE-MONEY.

SECTION 23. Whenever a public or private sale of real estate
shall be authorized, directed or confirmed by any court under the
provisions of this act, the person or persons purchasing the real
estate so sold and taking title in pursuance of the decree of the
court, shall take such title free and discharged of any obligation
to see to the application of the purchase-money.

NOTE. This is copied from Section 16 (/) of the Fiduciaries Act. (See
455 infra.)

210. APPEALS.

SECTION 24. In all cases and proceedings under this act, appeals
may be taken to the proper appellate court from the orphans'
court, as now provided by law in other cases, and from the court
of common pleas, as provided in equity cases : Provided, That if
any decree be carried into execution before the appeal be per-
fected, and written notice thereof given to any vendee, mort-
gagee, or lessee, any reversal thereof shall not affect the right
or title of such vendee, mortagee, or lessee, but the purchase or
mortgage moneys or rents shall stand in lieu of the premises sold
or mortgaged, or leased, so far as thus encumbered: Provided,
further, That before any decree be carried into effect to afford
such indemnity, twenty-one days be allowed from its entry to take
and perfect such appeal.

NOTE. This is Section 8 of the Price Act, 4 Purd. 4028, modified by
substituting "proper appellate" for "supreme," and by omitting, after
"equity cases" the words "in the respective counties of the state." In the



REVISED PRICE ACT SECTIONS 24-25-26 123

scond proviso, the period has been made twenty-one instead of twenty days,
to correspond with the period fixed by the general appeals act.

211. SHORT TITLE.

SECTION 25. This act shall be known and may be cited as the
Revised Price Act of 1917.

212. REPEALER.

SECTION 26. 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.

Section 10 of an act entitled "An Act supplementary to the
several acts of this commonwealth concerning partitions, and for
other purposes therein mentioned," approved April 7, 1807, P. L.
155, absolutely.

Section 2 of an act entitled "A supplement to the intestate law
of this commonwealth," approved April 8, 1826, P. L. 255, abso-
lutely.

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

Section 2 of an act entitled "A supplement to an act, entitled
'An Act relating to orphans' court,' approved the twenty-ninth
of March, one thousand eight hundred and thirty-two," approved
March 16, 1847, P. L. 474, absolutely.

Sections I to 5, inclusive, of an act entitled "An Act supple-
mentary to an act passed the twenty-ninth day of March, one
thousand eight hundred and thirty-two, entitled 'An Act relating
to orphans' courts,' and relating to contracts of decedents and
escheats in certain cases, and relative to the district court of the
city and county of Philadelphia, and to registers of wills," ap-
proved April 3, 1851, P. L. 305, absolutely.

Sections i to 8, inclusive, and Section 10 of an act entitled
"An Act relating to the sale and conveyance of real estate," ap-
proved April 1 8, 1853, P. L. 503, absolutely.

Sections i and 3 of an act entitled "A supplement to an act,
entitled 'An Act relating to the sale and conveyance of real
estate,' " approved April 13, 1854, P. L. 368, absolutely.

Section 5 of an act entitled "An Act to amend certain defects



124 REVISED PRICE ACT SECTION 26

of the law for the more just and safe transmission and secure
enjoyment of real and personal estate," approved April 27, 1855,
P. L. 368, absolutely.

An act entitled "A further supplement to the act, entitled 'An
Act relating to the sale and conveyance of real estate/ passed the
eighteenth day of April, one thousand eight hundred and fifty-
three," approved April I, 1863, P. L. 187, absolutely.

An act entitled "Supplement to an act, entitled 'An Act relating
to the sale and conveyance of real estate,' approved the eighteenth
day of April, Anno Domini one thousand eight hundred and fifty-
three," approved April 18, 1864, P. L. 462, absolutely.

An act entitled "A supplement to an act relating to the sale and
conveyance of real estate, approved the eighteenth day of April,
one thousand eight hundred and fifty-three," approved April 17,
1866, P. L. 1 08, absolutely.

Sections I and 2 of an act entitled "An Act relating to judicial
sales, and the preservation of the lien of mortgages," approved
March 23, 1867, P. L. 43, absolutely.

An act entitled "A further supplement to an act, entitled 'An
Act relating to the sale and conveyance of leal estate/ approved
the eighteenth day of April, Anno Domini, one thousand eight
hundred and fifty-three, authorizing the courts to decree the leas-
ing and combination of lands for mining purposes," approved
June 8, 1874, P. L. 277, absolutely.

Section I of an act entitled "An Act to amend the second section
of an act, entitled 'An Act relative to the sale and conveyance of
real estate/ approved the eighteenth day of April, one thousand
eight hundred and fifty-three, extending the provisions thereof to
real estate upon which are limited vested remainders which are
liable to open and let in after born children, and validating sales
of real estate heretofore made by proceedings under said act of
lands and tenements subject to such remainders," approved June

14, 1897, P. L. 144, absolutely.

Sections I and 2 of an act entitled "An Act authorizing the
several orphans' courts of this commonwealth to decree the sale,
mortgaging, leasing or conveyance upon ground-rent, of lands
devised or held with remainder to a class of persons, some or all
of whom are unborn, and to validate certain sales and conveyances
heretofore made by decree of court in such cases," approved June

15, 1897, P. L. 159, absolutely.

An act entitled "An Act amending an act approved April seven-



REVISED PRICE ACT SECTION 26 125

teenth, one thousand eight hundred and sixty-six, entitled 'A sup-
plement to an act relating to the sale and conveyance of real estate,'
approved the eighteenth day of April, one thousand eight hundred
and fifty-three ; providing that deeds may be acknowledged before
any justice of the peace, notary public, or other officer having
authority to take acknowledgment of deeds or other instruments
of writing," approved April 22, 1903, P. L,. 241, absolutely.

An act entitled "An Act relating to acknowledgments of deeds ;
authorizing county treasurers, county commissioners, sheriffs,
executors, administrators, trustees, or other persons acting in an
official or representative capacity, where now required or author-
ized to make acknowledgment of deeds or other instruments
before justices of the peace, to make acknowledgments of deeds
and other instruments before a notary public, or any officer au-
thorized by law to take acknowledgments of deeds, and validat-
ing all such acknowledgments heretofore made before other
officers than justices of the peace," approved April 23, 1909, P.
L. 156, in so far as it relates to acknowledgments of deeds or
other instruments made in pursuance of decrees entered under the
provisions of this act.

An act entitled "An Act authorizing the several orphans'
courts to empower guardians of the estates of minors to join
with the cotenants of said minors in effecting amicable partition
of lands held in common," approved May 23, 1913, P. L. 345,
absolutely.

An act entitled "A supplement to an act approved the eighteenth
day of April, one thousand eight hundred fifty-three, entitled 'An
Act relating to the sale and conveyance of real estate,' " approved
May 28, 1915, P. L. 635, 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 re-
pealed.



THE WILLS ACT

of
June 7, 1917, (P. L. 403.)

PRELIMINARY NOTE BY COMMISSION.

The present law on this subject has proved so satisfactory that
the Commissioners have recommended few changes of a funda-
mental nature. The law, however, has been codified, revised, and
arranged in logical form. Some important changes should, how-
ever, be indicated.

In Section 2, it is provided that the presence of dispositive
words after the signature of a testator shall not, even if they are
written before the execution of the instrument, invalidate that
which precedes the signature.

In Section 6, the period before death when a will for religious
or charitable uses may be executed has been made thirty days
instead of a calendar month.

In Section 8, the appointment of testamentary guardians is reg-
ulated and the rights of father and mother rendered more uniform.

In Section 15, the law on the subject of lapsed legacies and
devises has been revised and the phraseology of existing statutes
amended, especially in cases where the lapse occurs in the resid-
uary clause or bequest and an intestacy results under the present
law. According to the revised act, the lapsed share will pass to
the other residuary legatees or devisees.

In Section 16, the rights of adopted children are extended to
cases of a general devise or legacy to children when the contrary
intention does not appear by the will.

In Section 17, provision is made for the payment of pecuniary
legacies from real estate not specifically devised, when no contrary
intention appears in the will.

In Section 18, it is provided that a devise of mortgaged real
estate shall in all cases be subject to the mortgage and that the
mortgage shall not be paid from the personal estate in the absence
of a direction to that effect.

In Section 19, it is provided that in the case of so-called spend-
thrift trusts, the income of the cestui que trust shall, notwith-

126



WILLS ACT CONTENTS 127

standing, be liable for the support and maintenance of his wife
and minor children.

In Section 21, it is provided that the marriage of a testatrix
shall operate to revoke her will only pro tanto and not absolutely,
thus rendering the law uniform with that regulating the subject
in the case of men.

In Section 22, corresponding to Section 23 of the Intestate Act,
it is provided that no murderer shall be entitled to take under the
will of the person whom he has killed.

In Section 23, the rights of a surviving husband and wife, elect-
ing to take against the will of the deceased spouse, are made uni-
form, as has already been indicated in the Preliminary Note to
the Intestate Act ; and the procedure relative to such election has
been revised and defined with greater particularity.

TABLE OF CONTENTS.

1917 Section

Pamphlet Number

Laws Herein

The Wills Act, 403 213

Section i. Who may make wills and what may be

disposed of, 405

Section 2. Form and execution of wills,

Section 3. Execution of wills by mark or cross,

Section 4. Nuncupative wills,

(a) When and where to be executed,

(b) Requisites, where bequest is over one hun-

dred dollars 219

(c) Proof after expiration of six months, . . . 406 220

Section 5. Wills of mariners and soldiers, 221

Section 6. Bequests and devises for religious and

charitable uses, 222

Section 7. Emblements, crops, rents, and periodical
payments accuring to tenants for life
and others, 223

Section 8. Testamentary guardians, 224

(a) Appointed by father, 224

(b) Appointment by mother, 225

(c) Forfeiture of right by neglect of parental

duty, 407 226

Section 9. Wills to be construed as if executed im-
mediately before death of testator, 227

Section 10. After-acquired real estate to pass by

general devise, 228

Section n. General devise or bequest to operate as
execution of general power of appoint-
ment, 229



128



WILLS ACT CONTENTS



1917 Section
Pamphlet Number
Laws Herein

Section 12. Devises of real estate to pass whole

estate of testator, 230

Section 13. Devise of real estate in fee tail construed

as estate in fee simple, 231

Section 14. Construction of "die without issue," and

similar phrases, 408 232

Section 15. Lapsed and void devises and legacies,.. 233

(a) Devise or legacy in favor of lineal

descendants not to lapse by death, 233

(b) Devise or legacy in favor of brothers and

sisters and their children not to lapse by

death, in certain cases 234

(c) Lapsed and void devises and legacies to

fall into residue; provisions where such
legacies and devises are contained in the

residuary clause, 235

Section 16. Devise or legacy to children to include

adopted children, 409 236

(a) Children adopted by testator, 236

(b) Children adopted by devisee or legatee.. 237
Section 17. Pecuniary legacies to be charged on

residuary real estate 238

Section 18. Devises of real estate subject to mort-
gage 239

Section 19. Spendthrift trusts; income to be liable
for maintenance of wife and minor
children, 240

Section 20. Revocation of wills, 241

(a) Wills of lands, 241

(b) Wills of personalty, 410 242

Section 21. Revocation of wills pro tanto, by sub-
sequent marriage, or birth of children, 243

Section 22. Forfeiture of rights by devisee or legatee

who murders the testator, 244

Section 23. Election to take under or against wills, . . 245

(a) Right of surviving spouse to elect to take

against will of deceased spouse, 245

(b) How election to be manifested and within

what time, 246

(c) No payments to be required before elec-

tion ) 411 247

(d) Surviving spouse may be cited to make

election, 248



WILLS ACT Tine SUCTION i



129



' 1917 Section

Pamphlet Number

Laws Herein

(e) Election of surviving spouse, or decree of
court where there is a failure to elect,

to be recorded and filed, 249

Section 24. Act not to apply to wills of personal
estate, executed by testator domiciled

without the Commonwealth, 412 250

Section 25. Short title section, 251

Section 26. When act shall go into operation, 252

Section 27. Repealer, 412-5 253

213. TITLE.

AN ACT.

Relating to the form, execution, revocation and interpretation
of wills, to nuncupative wills, to the appointment of testamentary
guardians, to spendthrift trusts, to forfeiture of devise or legacy
in case of murder of testator, to elections to take under or against
wills, and to the recording and registering of such elections and
of decrees relative thereto and to the fees therefor.

214. WHO MAY MAKE WILLS AND WHAT MAY BE

DISPOSED OF.

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 every person of sound mind and of the age of twenty-
one years or upwards, whether married or single, may dispose by
will of his or her real estate, whether such estate is held in fee
simple or for the life or lives of any other person or persons, and
whether in severalty, joint tenancy or common, and also of his or
her personal estate.

NOTE. This is Section i of the Act of April 8, 1833, P. L. 249, 4 Purd.
5109-18, amended by inserting the words, "of the age of twenty-one years or
upwards, whether married or single." This obviates the necessity for a
separate section as to minors, thus supplying Section 3 of the Act of 1833,
4 Purd. 5120. It also supplies Section 7 of the Act of April n, 1848, P. L.
537, 4 Purd. 5119 (which supplied Section 2 of the Act of 1833) providing
that a married woman might dispose of her separate property by will ex-
ecuted in the presence of two or more witnesses, neither of whom should
be her husband. It likewise supplies Section 5 of the Act of June 8,
1893, P. L. 345, 4 Purd. 5119, empowering married women to make wills
as if unmarried, which act repealed the married persons' property act of
June 3, 1887, P. L. 332.
9



130 WILLS ACT SECTIONS 1-2

The provision in Section I of the Act of 1833 as to estates held for the
lives of others was copied from the Statutes of 29 Charles II, Chapter 3,
Section 12; and the provision as to joint tenancy followed the Act of
March 31, 1812, 5 Sm. L. 395, 2 Purd. 2031, which provided that if parti-
tion be not made between joint tenants, the parts of those who die first
shall not accrue to the survivors, but shall descend or pass by devise, and
be considered to every intent and purpose in the same manner as if such
deceased joint tenants had been tenants in common.

Apropos of a suggestion that the testamentary age be reduced to eight-
een years, it may be noted that in the draft submitted by the Commis-
sioners in 1832, it was provided that wills of personal estate alone might
be made by persons of the age of eighteen years or upwards, but this was
not approved by the legislature.

215. FORM AND EXECUTION OF WILLS.

SECTION 2. Every will shall be in writing, and unless the person
making the same shall be prevented by the extremity of his last
sickness, shall be signed by him at the end thereof, or by some
person in his presence, and by his express direction; and in all
cases, shall be proved by the oaths or affirmations of two or more
competent witnesses, otherwise such will shall be of no effect :
Provided, That the presence of dispositive or testamentary words
or directions, or the appointment of an executor or the like, after
the signature to a will, whether written before or after the ex-
ecution thereof, shall not invalidate that which precedes the
signature.

NOTE. This is Section 6 of the Act of 1833, 4 Purd. 5120-26, with the
addition of the proviso.



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 13 of 71)