Raymond Moore Remick.

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

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The Commissioners in 1832 remarked that it was then the law of Penn-
sylvania that real or personal property might be transferred by a will
without signature, seal or attesting witness, and although the will was not
in the handwriting of the testator. Their draft of Section 6 was passed
without alteration except that, after the words "shall be proved" there
were omitted the words "before the register having jurisdiction thereof."

In the Laws Agreed upon in England, 5 Sm. L. 416, Section 15, it was
provided that : "All wills and writings, attested by two witnesses, shall
be of the same force as to lands, as other conveyances, being legally proved
within forty days, either within or without the said province."

The Act of 1705, i Sm. L. 33, "concerning the probates of written and
nuncupative wills, and for confirming the devises of lands," was largely
derived from the Statute of 29 Charles II, Chapter 3, but omitted Sections
5 and 6 of that statute, which prescribed the forms of execution and revo-
cation of wills of lands. Section i of the Act of 1705 provided "That
all wills in writing, wherein or whereby any lands, tenements or heredita-
ments, within this province, have been, are ( or shall be devised (being



WILLS ACT SECTION 2 131

proved by two or more credible witnesses, upon their solemn affirmation,
or by other legal proof in this province, or being proved in the Chancery
in England, etc.,) shall be good and available in law, for the granting,
conveying and assuring of the lands or hereditaments thereby given or
devised, as well as of the goods and chattels the,reby bequeathed."

The first part of the section as now reported is copied from the present
law. Its language is vague, if it be literally interpreted, but its meaning
has been so often elucidated by the decisions of the courts that the Com-
missioners have felt it to be unwise to remould it, and, for the sake of
achieving technical clarity of expression, raise new questions which would
excite litigation. The Commissioners are not aware that any change is de-
manded as to the execution and proof of wills, and have purposely avoided
the requirement of subscribing witnesses, which in many other jurisdictions
is the rule. It is desirable that the laws should be as simple and free
from technicality as possible, and if subscribing witnesses were necessary
many wills would be unjustly avoided. Our present law has proved very
satisfactory in this regard, and an innovation does not appear to be ad-
visable.

The Commissioners, however, recommend in the proviso to this sec-
tion a change induced by the decision in Wineland's Appeal, 118 Pa. 37.
The legislative requirement that a will shall be signed at the end thereof,
the natural and proper place for the signature, was a judicious improvement
upon the law as it previously existed; but the Commissioners are of
opinion that the presence of testamentary provisions after the signature,
even if written before the signature is affixed, should not invalidate what
the testator by his signature has authenticated.

See forms 3, 5-8, 36-7. See Seiter's Est., 265 Pa. 202; 108 Atl. 614.

Proof of a lost will is made out only by proof, by two witnesses of
execution and of contents, each of which must separately depose to all the
facts necessary to complete the chain of evidence so that no link in it may
depend on the credibility of one. Where a reputable scrivener prepared
a will which was signed by decedent in the presence of two witnesses, who
had no knowledge of its contents and the will was subsequently lost the
testimony of the scrivener alone as to its contents was held by the court
insufficient. "The two witness rule is sound ; by permitting one witness to
establish the contents of a lost will, the door won' ' be opened to intriguing
and designing persons after which misfortur 'st necessarily follow ;
and, while, by such latter rule a disappointed heir may be discouraged
from destroying a will, dishonesty, fraud and criminal wrong would be
greatly encouraged. If a will, properly executed, is lost, and the one-
witness rule should prevail, it would permit a scrivener to write the will
after his own fashion, diverting the estate into channels never dreamed
of by the testator, disinheriting heirs, and denying, to those close to him
throughout life, the benefits of his bounty. Where two witnesses to the
contents are required, the opportunity for engrafting bogus wills on
estates, or for dishonesty in scriveners who write wills, or other fraud
in connection therewith, if not made impossible, is greatly lessened."
Hodgson's Est., 270 Pa. 210; 112 Atl. 778.



132 WILLS ACT SECTIONS 2-3

Where testator accidently destroyed his will and though intending to do
so, never re-wrote it, its contents cannot be shown until its execution has
been proved by the testimony of two witnesses. Where such witnesses
have no knowledge of the contents of the will and the only other evidence
is that of the man who drew the will who testified that he had left it with
decedent, who told him that he had signed it in the presence of two wit-
nesses, the evidence of the execution of the will is insufficient. Weber's
Est., 12 Berks 12; affirmed in 268 Pa. 7; no Atl. 785.

While the presumption is, in the absence of proof, that words appearing
in a will following the signature were written after the signature, yet
under the act of 1917 they are without effect and a widow given a fee in
the will did not have her estate cut down to a life estate by the addition
of the words "here life time" after the signature. Wilson v. Cook, 49 Pa.
C. C. 16.

A scrawl or mark made by the testatrix, identified by two witnesses
both of whom saw her "sign" the will and one of whom was a subscribing
witness, was held a sufficient execution by Lamorelle, P. J. in Kris' Est,
30 Dist 166.

On the other hand, Miller, J., of the Orphans' Court of Allegheny
County, set aside the probate of a will where it appeared that the testa-
trix signed her name by making a series of unintelligible marks which
were witnessed by two subscribing witnesses, on the ground that the act
is mandatory and requires that the testatrix's name must appear written
by someone in her presence and by her direction and authority. Perry's
Est., 67 P. L. J. 216.

216. EXECUTION OF WILLS BY MARK OR CROSS.

SECTION 3. If the testator be unable to sign his name, for any
reason other than the extremity of his last sickness, a will to
which his name is subscribed in his presence, by his direction and
authority, and to which he makes his mark or cross, unless unable
so to do, in which case the mark or cross shall not be required,
shall be as valid as though he had signed his name thereto:
Provided, That such will shall be proved by the oaths or affirma-
tions of two or moi . ._. npetent witnesses.

NOTE. This is subt< 1 for Section i of the Act of January 27,
1848, P. L. 16, 4 Purd. 5 j-7, omitting the provisions as to wills thereto-
fore made.

Section i of the Act of 1848 reads as follows.

"Every last will and testament heretofore made or hereafter to be made,
excepting sucn as may have been finally adjudicated, prior to the passage
of this act, to which the testator's name is subscribed, by his direction
and authority, or to which the testator hath made his mark or cross, shall
be deemed and taken to be valid in all respects, Provided, The other
requisites under existing laws are complied with."

This phraseology is clearly open to criticism, as it might be understood
to mean that a will, signed by the direction of the testator, although not in



WILLS ACT SECTIONS 3-4 (<0, (&) 133

his presence, and although he was not in the extremity of his last illness,
would be good, which, of course, would be inconsistent with the preceding
requirements.

The Commissioners are of opinion that this section of the Act of 1848
should be corrected in its phraseology, as an exception to their general
method of revision, for its reformation, unlike that of Section 6 of the
Act of 1833, last preceeding, is not complicated by any long series of
judicial decisions ; and it seems desirable to clarify its language before
any questions such as have been suggested may arise.

The new section is intended to cover cases where a person is unable to
sign his name, whether from lack of education or from physical weakness.
The provision that the mark may be dispensed with if the testator be
unable to make a mark is intended to cover such a case as that of a man
who lost both arms or is paralysed.

See form 4.

The probate of a will was set aside where it appeared that the testatrix
signed her name by making a series of unintelligible marks which were
witnessed by two subscribing witnesses, on the ground that this section
of the act is mandatory and requires that the testatrix's name must appear
written by someone in her presence and by her direction and authority.
Perry's Estate, 67 P. L. J. 216.

But see Kris' Est., 30 Dist. 166.

217. NUNCUPATIVE WILLS.

SECTION 4. Personal estate may be bequeathed by a nuncu-
pative will, under the following restrictions :

218. WHEN AND WHERE TO BE EXECUTED.

(a) Such will shall in all cases be made during the jast sickness
of the testator, and in the housejjfjiis habitation or dwelling, or
where he has resided for the space of ten days or more, next be-
fore the making of such will ; except where such person shall be
surprised by sickness, being from his own house.

NOTE. This is clause i of section 7 of the Act of 1833, 4 Purd. 5127,
omitting at the end the words "and shall die before returning thereto."
These words seem unnecessary and might invalidate a nuncupative will
made in a hospital should the testator be removed to his own home before
death.

Section 7 of the Act of 1833 was derived from Section 3 of the Act of
1705, I Sm. L. 33, the changes made by the Commissioners of 1830 being
the substitution in clause (b) of $100 for 30, and the placing of this lim-
itation in the second clause instead of the first.

The Act of 1705 was derived from the Statute of 29 Charles II.

219. REQUISITES WHERE BEQUEST IS OVER ONE

HUNDRED DOLLARS.

(&) Where the sum or value bequeathed shall exceed one hun-
dred dollars, it shall be proved that the testator, at the time of



134 WILLS ACT SECTIONS 4 (&), (c)-5

pronouncing the bequest, did bid the persons present, or some
of them, to bear witness that such was his will, or to that effect ;
and in all cases, the foregoing requisites shall be proved by two
or more witnesses, who were present at the making of such will.

NOTE. This is clause n of Section 7 of the Act of 1833, 4 Purd. 5128.
See the note to clause (a).

220. PROOF AFTER EXPIRATION OF SIX MONTHS.

(c) No testimony shall be received to prove any nuncupative
will after six months elapsed from the speaking of the alleged
testamentary words, unless the said testimony, or the substance
thereof, were committed to writing within six days after the
making of said will.

NOTE. This is Section 11 of the Act of March 15, 1832, P. L. 137, 4
Purd. 5128, which was derived from Section 4 of the Act of 1705, I Sm. L.
33, with merely verbal changes. In line 3, "alleged" has now been substi-
tuted for "pretended," as being more in conformity with the modern use
of the words.

221. WILLS OF MARINERS AND SOLDIERS.

SECTION 5. Notwithstanding this act, any mariner being at sea,
or any soldier being in actual military service, may dispose of
his movables, wages and personal estate, as he might have done
before the making of this act.

NOTE. This is Section 8 of the Act of 1833, 4 Purd. 5128, which was
copied from Section 7 of the Act of 1705, i Sm. L. 33. There were omitted
however, in the Act of 1833, the words, "or person" after "mariner," and
the words, "or they" after "as he." The Commissioners of 1830 remarked,
in reference to the change thus made : "By extending the provisions to all
other persons at sea it is conceived that there would be some danger of
those evils in respect to the disposition of property by verbal wills against
which it was the object of a previous section to guard."

Under the present law and the decisions of the courts, mariners at sea
and soldiers in actual military service have the same privileges in the
making of wills that they would have enjoyed if the English Statute of
Frauds and our Acts of 1705 and 1833 had never been passed, as all of
these statutes have expressly excluded such wills ; the wills, though oral,
must however be proved by two witnesses: Smith's Will, 6 Phila. 104;
Drummond vs. Parish, 3 Curteis Ecc. 522.

While the Commissioners are aware of the dangers attending oral wills,
they have concluded to recommend the exception here made in favor of
mariners and soldiers, as a class of persons who have always been re-
garded with peculiar indulgence by the law of England as well as by the
Roman law, in which this exception originated.



WILLS ACT SECTIONS 5-6 135

Nuncupative wills in general have been so safeguarded by the require-
ments of the preceding sections, that the Commissioners do not believe
that any serious consequences will ensue from their retention. Such wills
seldom occur in practice, and yet their total abolition might produce in-
convenience in cases proper for them.

Wills of mariners at sea and soldiers in actual military service are not
subject to the provisions of the Wills Act of 1917, being excepted from the
operation of that and previous statutes, but are governed by the common
law under which a will of personal property by word of mouth was
valid, made by a boy over fourteen years of age, although a minor.
Henninger's Est., 30 Dist. 413. (Note; This case contains a most ex-
haustive and learned dissertation on the subject of nuncupative wills and
the wills of mariners at sea and soldiers in active service.)

222. BEQUESTS AND DEVISES FOR RELIGIOUS
AND CHARITABLE USES.

SECTION 6. No estate, real or personal, shall be bequeathed
or devised to any body politic, or to any person in trust, for
religious or charitable uses, except the same be done by will at-
tested by two credible, and, at the time, disinterested witnesses,
at least thirty days before the decease of the testator; and all
dispositions of property contrary hereto shall be void, and go to
the residuary legatee or devisee, heirs or next of kin, according to
law. A disinterested witness, within the meaning of this section,
is a witness not interested in such religious or charitable use,
this section not being intended to apply to a witness interested
in some other devise or bequest in the same instrument.

NOTE. This is Section i of the Act of June 7, 1911, P. L. 702, 7 Purd.
7766, altered so as to apply to wills only, and by transferring the definition
of "a disinterested witness" to the end of the section. Another statute
should be passed relating to gifts otherwise than by will, so as to make
the law uniform. The Act of 1911 amended Section n of the Act of
April 26, 1855, P. L. 332, i Purd. 595, 4 Purd. 5129, by adding the definition
of a disinterested witness, which has been construed by the supreme court
in Palethorp's Estate, 249 Pa. 411.

Much might perhaps be said in favor of the abolition of the prohibition
of bequests and devises for charitable and religious uses made within
any definite period of time before the death of the testator. The Com-
missioners have concluded to make no recommendations on this subject
to the Legislature. They have, however, substituted for the period of one
calendar month, that of thirty days, for the reason that the calendar months
of the year do not contain the same number of days, and the provision
should be uniform.



136 WILLS ACT SUCTIONS 6-7-8 (a)

Decedent died October 13, 1918, leaving a will dated Oct. n, 1918, with
a devise of a remainder interest in real estate to a charity in default of
issue to the life tenant and Gest, J., held : "As the testatrix died within
thirty days after the execution of her will, the charitable bequests and
devises are void" under this section of the act. McNulty's Est., 29 Dist.
709.

A bequest in trust to use the income for the care of a cemetery lot 'is
a charitable bequest under the Act of May 26, 1891 (P. L. 119), and is
void where testator died less than thirty days after making his will
under Section 6 of the Wills Act of 1917. Eby's Est, 30 Dist.
338, 37 Lane. 329. See Channon's Est., 28 Dist. 479 affirmed in 266 Pa.
417, 109 Atl. 756.

223. EMBLEMENTS, CROPS, RENTS AND PERIODI-

CIAL PAYMENTS ACCRUING TO TENANTS
FOR LIFE AND OTHERS.

SECTION 7. The emblements or crops growing on lands held by
a widow in dower, or by any tenant for life, may be disposed of
by will as other personal estate. Rents and other periodical pay-
ments accruing to any tenant for life, or to any other person en-
titled under the laws of this commonwealth regulating the descent
and partition of real estate, may, so far as the same may have ac-
crued on the day of death of such tenant for life, or other person,
be disposed of by will, in like manner.

NOTE. This is Section 5 of the Act of 1833, 4 Purd. 5120, with one
change. The draft prepared by the Commissioners in 1832 read, "The
emblements or crops." The Act of 1833 reads, "The emblements of
crops." The Act of 1833 reads, "The emblements of crops." This is ev-
idently a clerical or typographical error. The original reading is restored.

The Commissioners in 1832 reported that they had incorporated in Sec-
tion 5 a part of the Statute of 20 Henry III, Chapter 2, relating to widows,
and added a power to all life tenants to dispose of by will of crops, rents,
etc.

224. TESTAMENTARY GUARDIANS APPOINTED BY

FATHER.

SECTION 8. (a) Every person competent to make a will, being
the father or adopting father of any minor child unmarried, may
appoint a testamentary guardian for such child during his or her
minority, or for any shorter period: Provided, That such testa-
mentary guardian shall not be entitled to the custody of the per-
son of such child unless the mother or adopting mother, if surviv-
ing, shall relinquish such custody, or unless the best interests of
the child shall require that such surviving mother or adopting
mother should not retain the custody of the person of such child.



WILLS ACT SECTION 8 (a), (6) 137

NOTE. This is founded on Section 4 of the Act of April 8, 1833, 4 Purd.
5151, as amended by the Act of April 15, 1915, P. L. 124, 7 Purd. 7767. It is
altered so as to distinguish between guardianship of the person and of the
estate, giving the father the right to appoint a guardian but making the
question of the custody of the person depend upon the consent of the
mother and the best interests of the child. Provisions to include adopted
children have been added.

The provision as to appointment of a guardian by the mother is omitted
from this clause and covered by the next.

The specific inclusion of adopted children in this section of the act was
held to be persuasive of an intent not to include adopted children within
the purview of Section 21 of the Wills Act so as to revoke a will as to
those adopted since its making by the adopting parent. Boyd's Est., 50
Pa. C. C. 163, 10 West, 47, affirmed in 270 Pa. 504.

Under this section a grandparent has no authority to appoint a testa-
mentary guardian for his grandchild. The act gives no persons other
than the parents, natural or adopting, such power to appoint a testamen-
tary guardian. But where such grandparent appoints by his will a certain
person as "guardian" of a grandchild who is made a beneficiary, "hereby
empowering him to have full power and authority to receive the said
bequests," such appointee will be considered as a trustee for the purposes
expressed in the will and as such will be entitled to the control of the
bequests to the exclusion of a lawfully appointed guardian, who, however,
has standing to compel the trustee to enter security or do such other
things as in the opinion of the court may be necessary for the protection
of the minor's estate. McLain's Est., I Wash. 220.

225. APPOINTMENT BY MOTHER.

(&) Every person competent to make a will, being the mother
or adopting mother of any minor child unmarried, may appoint a
testamentary guardian for such child during his or her minority,
or for any shorter period, whenever the father or adopting father
of such child shall be deceased and has not appointed such a
guardian. Such mother or adopting mother, who shall leave to
such child an estate, either real or personal, may appoint a testa-
mentary guardian for such estate of the child, whether the father
or adopting father of such child shall be living or dead, and
whether he shall or shall not have appointed a testamentary guard-
ian for such child. Whenever the father or adopting father of
such child has for one year or upwards, immediately preceding
the death of the mother or adopting mother, wilfully neglected or
refused to provide for such child, such mother or adopting
mother, who shall leave to such child an estate, either real or
personal, may appoint a testamentary guardian for such child.*

*The portion in italics was added by the amendatory Act of June 12,
(P. L. 443-)



138 WILLS ACT SECTION 8 (fe), (c)

NOTE: This is founded on Sections i and 2 of the Act of June 10, 1881,
P. L. 96, 4 Purd. 5152; the Act of April 15, 1915, P. L. 124, 5 Purd. 5887;
and the Act of April 21, 1915, P. L. 145, 5 Purd. 5887, and involves the
repeal of these acts.

The language of the Act of April 15, 1915, giving to "the father or the
mother" the right to devise the custody of a minor child in all case*, leaves
it doubtful whether, the father having died appointing a guardian, the
mother may also appoint a general guardian by her will, and vice versa.

Provisions to include adopted children have been added. The provision
that a mother, appointed guardian by her husband's will, may appoint a
successor, has been omitted as unnecessary.

The specific inclusion of adopted children in this section of the act was
held to be persuasive of an intent not to include adopted children within
the purview of Section 21 of the Wills Act so as to revoke a will as to
those adopted since its making by the adopting parent. Boyd's Est., 50
Pa. C. C. 163, 10 West. 47, affirmed in 270 Pa. 504.

Under this section a grandparent has no authority to appoint a testa-
mentary guardian for his grandchild. This act gives no persons other than
the parents, natural or adopting, such power to appoint a testamentary
guardian. But where such grandparent appoints by his will a certain
person as "guardian" of a grandchild who is made a beneficiary, "hereby
empowering him to have full power and authority to receive the said
bequests," such appointee will be considered as a trustee for the purposes
expressed in the will and as such will be entitled to the control of the
bequest to the exclusion of a lawfully appointed guardian, who, however,
has standing to compel the trustee to enter security or do such other
things as in the opinion of the court may be necessary for the protection
of the minor's estate. McLain's Est., i Wash. 220.

226. FORFEITURE OF RIGHT BY NEGLECT OF
PARENTAL DUTY.

(c) No father who shall have, for one year or upwards pre-
vious to his death, wilfully neglected or refused to provide for
his child or children, and no mother who shall have, for a like
period, deserted her child or children or failed to perform her
parental duties, shall have the right to appoint any testamentary
guardian for such child or children.

NOTE. This is Section 6 of the Act of May 4, 1855, P. L. 431, 4 Purd.
5152, omitting the words "as aforesaid" before the words "for one year
or upwards," and adding a corresponding provision as to the mother.
Section I of the act of May 25, 1887, P. L. 264, 4 Purd. 5152, giving the
mother a right to appoint a guardian in case of desertion by the husband,
is superseded by clause (b) supra, and should be repealed.



WILLS ACT SECTIONS 9-10 139

227. WILLS TO BE CONSTRUED AS IF EXECUTED

IMMEDIATELY BEFORE THE DEATH OF
THE TESTATOR.

SECTION 9. Every will shall be construed, with reference to the
real and personal estate comprised in it, to speak and take effect
as if it had been executed immediately before the death of the
testator, unless a contrary intention shall appear by the will.

NOTE: This is Section i of the Act of June 4, 1879, P. L. 88, 4 Purd.
5144, which was declaratory of the common law rule as to personal prop-
erty, and was copied from the statute of 7, William IV and I Viet,
Chapter 26, Section 24; 8 Rev. Stat. 34.



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 14 of 71)