Raymond Moore Remick.

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

. (page 18 of 71)
Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 18 of 71)
Font size
QR-code for this ebook


property; the inventory was duly filed; but she filed no election to take
against his will until more than two years after the issuance of letters :
Held, that her election was too late.

Under these facts the executor was under no duty to seek the widow
out and advise or assist her to take against the will.

The widow was not relieved from the necessity of filing an election in
accordance with the Act of 1917, by reason of the fact that the will did
not leave her anything.

"The object of the Legislature was evidently to fix a definite time after
which the right to elect against the will should cease (unless, perhaps,
fraud be shown), and, as the auditing judge well says, this clause of the
statute is one for the protection of those dealing with the estates of
decedents, and is to be regarded as a statute of repose. It will be
remembered that formerly an election could be made at any time and
need not even be in writing. The Act of May 29, 1832, Sec. 35, P. L.
190, i Purd. 1277, provided a means by citation to compel the widow to
make her election as a matter of record after the expiration of a year
from the testator's death. The Act of April 21, 1911, P. L. 79, 7 Purd.
7766, then enacted that surviving husbands or wives, electing to take under
or against the wills of decedents, should in all cases manifest their
elections in writing, signed and acknowledged, and even provided that
no payment should be made to any husband or wife unless the election
was executed, acknowledged and delivered ; the manifest intention of
this act being, as was said in Beck's Estate, 265 Pa. 51, to promote
certainty in the settlement of estates.

"The present section, twenty-three of the Wills Act, in clause (a)
assimilated the rights of the surviving husband and wife; clause (&)
founded on Section i of the Act of 1911, provided that the election should
be made in writing, signed and acknowledged, and added the two-year



164 WILLS ACT SECTION 23 (&), (O, (rf)

limitation involved in this case. Clause (c) practically reenacted the
second section of the Act of 1911, and clause (d) extended the citation
granted by the Act of 1832 to the case of a, husband, theretofore not
included, and shortened the period from twelve to six months.

"That the limitation prescribed by the statute must be observed at least
in the absence of fraud, would appear to be perfectly clear from, the
language of the act, and the industry of counsel has discovered decisions
in other states where similar acts have been likewise construed. Among
them are Scheible v. Rinck, 195 111. 636 ; Shelton v. Sears, 187 Mass. 455 ;
Akin v. Kellogg, 119 N. Y. 441; Smith v. Smith, 20 Vt 270." Gest, J.,
in Flower's Estate, 30 Dist. 967.

247. NO PAYMENTS TO BE REQUIRED BEFORE

ELECTION.

(c) No payment from the estate of such decedent, except the
exemption allowed by law to the widow, shall be required to be
made to any surviving spouse unless his or her election shall have
been first duly executed, acknowledged and delivered, as provided
in clause (6) of this section.

NOTE. This is Section 2 of the Act of April 21, 1911, P. L. 79, 7 Purd.
7766, changed by inserting the provision as to widow's exemption, and the
words "required to be."

See Flower's Est, 30 Dist. 967.

248. SURVIVING SPOUSE MAY BE CITED TO MAKE

ELECTION.

(d) The orphans' court, on the application of any person in-
terested in the estate of a decedent, may issue a citation, at any
time after six months from the death of the testator, to the sur-
viving spouse of the testator, to appear at a certain time not less
than one month thereafter, in the said court, to make his or her
election to take under or against the will, which election shall be
filed of record, and shall be conclusive. If the surviving spouse
shall neglect or refuse to appear on such citation, then upon due
proof being made to the court of the service thereof, the said neg-
lect or refusal shall be deemed an election to take under the will,
and the decree of the court to that effect shall be conclusive.

NOTE. This is founded on Section 35 of the Act of March 29, 1832,
P. L. 200, I Purd. 1277-8. The changes are the extension of the section
to husband as well as wife, and the shortening of the period from twelve
to six months, in harmony with the reduction of the period for the filing
of the account. Some changes in phraseology have been made with a
view to clearness.



WILLS ACT SECTION 23 (</), (<?) 165

Where the Court of Common Pleas has refused the guardian of a weak-
minded person permission to elect to take against the will of the ward's
deceased husband, an order will not be made upon the petition of the
executor directing the guardian to take under the will, although without
such order the executor may not be able to make a good title to real
estate which the will directs to be sold. Haack's Est., 30 Dist. 669.

See Flower's Est., 30 Dist. 967.

249. ELECTION OF SURVIVING SPOUSE, OR DE-
CREE OF COURT WHERE THERE IS A FAIL-
URE TO ELECT, TO BE RECORDED AND
FILED.

(e) The election by a surviving spouse, or a certified copy of
the final decree of any orphans' court, in cases where there shall
have been an election in accordance with clause (rf) hereof, or a
neglect or refusal to elect within the time prescribed by the order
of the said court, shall, at the cost of the estate, be recorded by
the personal representative of the decedent, in the office for the
recording of deeds of the county where the decedent's will is pro-
bated, in the deed book, and shall be indexed by the recorder in the
grantors' index under the name of the decedent, and in the gran-
tees' index under the name of the surviving spouse, and shall be
registered in the survey bureau, or with the proper authorities em-
powered to keep a register of real estate, if any there be, in said
county. The charges for recording and registering shall be the
same as are provided by law for similar services. The election,
or decree of the court, or a certified copy of either, may also be
recorded in any office for the recording of deeds within this com-
monwealth, with the same effect as if a duly signed and acknowl-
edged declaration to the effect stated therein had been made by the
person authorized to elect, and at his or her request recorded in
said office according to law. After the said election shall have
been recorded in the office for the recording of deeds as aforesaid,
the said election, at the cost of the estate, shall be filed in the office
of the clerk of the orphans' court and a record made of such filing
by the said clerk.

NOTE. This is Section 3 of the Act of April 21, 1911, P. L. 79, 7 Purd.
7766, with some changes in phraseology, the substitution of the clerk of
the orphans' court for the register of wills, and the insertion of the pro-
visions as to registration and as to charges for recording and registering.



!66 WILLS ACT SECTIONS 24-25-26

250. ACT NOT TO APPLY TO WILLS OF PERSONAL

ESTATE, EXECUTED BY TESTATOR DOMI-
CILED WITHOUT THE COMMONWEALTH.

SECTION 24. Nothing in this act contained shall be construed to
apply to the disposition of personal estate by a testator whose
domicile, at the time of his death, was out of this commonwealth.

NOTE. This is Section 17 of the Act of 1833, 4 Purd. 5128, modified so
as to conform to the language of Section 25 of the new Intestate Act. (See
349 infra.)

251. SHORT TITLE.

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

252. WHEN ACT SHALL GO INTO OPERATION.

SECTION 26. This act shall take effect on the thirty-first day of
December, 1917, and shall apply to the wills of all persons dying
on or after said day. As to the wills of all persons dying before
that day, the existing laws shall remain in full force and effect.

NOTE. This section corresponds to Section 27 of the new Intestate Act.
(See 351 infra.) It supplies Section 18 of the Act of 1833, 4 Purd. 5129.

That section of the Wills Act of 1917, which provides that a failure to
make an election within two years "shall be deemed an election to take
under the will" is of no retroactive effect, and does not apply where tes-
tator died prior to the passage of said act. This is a new provision intro-
duced by the Act of 1917, and was no part of the law until that time.

"Annie E. Young died on March 26, 1917, months before the time set
for the Wills Act to become operative, to wit, December 31, 1917, and
months, moreover, before the bill was enacted by the legislature or ap-
proved by the governor. Again Section 26 of the act in express and un-
conditional language makes the statute apply only to the wills of persons
dying on or after December 31, 1917; providing that as to the wills of
all persons dying before that day. the existing laws should remain in full
force and effect. Under the laws of the commonwealth which were in
force at the date of the death of the testatrix, there was no time fixed
or limited during which a surviving spouse was obliged to make his or
her election, under penalty of being deemed and held to have elected to
take under the will, because of neglect or failure to make such election
during such limited period. See Beck's Estate, 265 Pa. 51 (1919). The
said two-year period is applicable only to estates of testates dying on or
after December 31, 1917." Per Hughes, P. ]., in Young's Est,
I Wash. 250.

The Wills Act of June 7, 1917, P. L. 403, is retroactive so that where



WILLS ACT SECTIONS 26-27 167

testatrix made her will prior to the passage of the act, but did not die
until after that date, the Wills Act applies. A will being ambulatory
speaks as of the date of death. In so holding Miller, J., said, inter alia :

"The paper in question bears date and, if executed, was written on the
8th day of September, 1914, prior to the passage of the Wills Act of 1917.
She died, however, after its passage, and the provisions of the Act of
1917 by its terms apply to persons dying on or after said day, irrespective
of the date of the execution of the will. That the section just quoted
gives retrospective effect to the act seems to be settled in Auberd's App.,
109 Pa. 447, and seems to be an answer to the contention that to apply
the provisions of the Act of 1917 to a will made in 1914 does not involve
retroactive legislation, no vested rights existing and no violation of con-
tracts forbidden by the Constitution being involved, in view of the well
known principle of law that wills, being ambulatory, speak of the date of
the death of the testator." Perry's Estate, 67 P. L. J. 216.

The provisions of the Wills Act do not effect a case where the decedent
died on August 30, 1917. See Gamier v. Gamier, 16 North. 205, at p. 215 ;
Mulligan's Est, 47 Pa. C. C. 546, 28 Dist. 309.

253. REPEALER.

SECTION 27. The following acts and parts of acts of assembly
are hereby repealed as respectively indicated, but so far only as
relates to the estates, real and personal, of any person or persons
dying on or after the thirty-first day of December, 1917. The
repeal of the first section of an act shall not repeal the enacting
clause.

Sections 3, 4, 6 and 7 of an act entitled "An act concerning
the probates of written and nuncupative wills, and for confirming
devises of lands," passed in 1705, i Sm. L. 33, absolutely.

Section 23 of an act entitled "An act directing the descent of
intestates' real estates, and distribution of their personal estates,
and for other purposes therein mentioned," passed April 19, 1794,
3 Sm. L. 143, absolutely.

Section 10 of an act entitled "An act supplementary to the act,
entitled 'An act directing the descent of intestates real estates,
and distribution of their personal estates, and for other purposes
therein mentioned,' " passed April 4, 1797, 3 Sm. L. 296, abso-
lutely.

Section 1 1 of an act entitled "An act supplementary to the sev-
eral acts of this commonwealth concerning partitions, and for other
purposes therein mentioned," approved April 7, 1807, P. L. 155,
absolutely.

An act entitled "An act to prevent devises and legacies from



168 WILLS ACT SECTION 27

lapsing in certain cases," approved March 19, 1810, P. L. 96,
absolutely.

Section i of an act entitled "An act relative to dower, and for
other purposes," approved April I, 1811, P. L. 198, absolutely.

Section n of an act entitled "An act relating to registers, and
registers' courts," approved March 15, 1832, P. L. 135, absolutely.

Section 35 of an act entitled "An act relating to orphans'
courts," approved March 29, 1832, P. L. 190, absolutely.

An act entitled "An act relating to last wills and testaments,"
approved April 8, 1833, P. L. 249, absolutely.

Section 2 of an act entitled "An act further to regulate proceed-
ings in courts of justice, and for other purposes," approved May
6, 1844, P. L. 564, absolutely.

An act entitled "A supplement to an act relating to last wills
and testaments, passed the eighth day of April, eighteen hundred
and thirty-three, approved January 27, 1848, P. L. 16, absolutely.

Sections 7 and n of an act entitled "A supplement to an act,
entitled 'An act relative to the LeRaysville Phalanx,' passed March,
Anno Domini one thousand eight hundred and forty-seven, and
relative to obligors and obligees, to secure the right of married
women, in relation to defalcation, and to extend the boundaries
of the borough of Ligonier," approved April n, 1848, P. L. 536,
absolutely.

Section n of an act entitled "An act relating to corporations
and to estates held for corporate, religious and charitable uses,"
approved April 26, 1855, P. L. 328, in so far as it relates to estates,
real or personal, bequeathed or devised.

Section i of an act entitled "An act to amend certain defects of
the law for the more just and safe transmission and secure enjoy-
ment of real and personal estate," approved April 27, 1855, P- L.
368, in so far as it relates to devises.

Sections i and 6 of an act entitled "An act relating to certain
duties and rights of husband and wife, and parents and children,"
approved May 4, 1855, P. L. 430, absolutely.

Section i of an act entitled "An act relating to dowers," ap-
proved April 20, 1869, P. L. 77, absolutely.

An act entitled "A supplement to an act relating to last wills
and testaments, approved the eighth day of April, one thousand
eight hundred and thirty-three, providing for the time from which
wills shall speak and take effect, for the vesting of lapsed or void



WILLS ACT SECTION 27 169

devises of real estate in the residuary devisee, and for the execu-
tion of powers over real and personal estate by the person in whom
such powers are vested," approved June 4, 1879, P. L. 88, abso-
lutely.

An act entitled "An act to enable mothers in certain cases to ap-
point testamentary guardians," approved June 10, 1881, P. L. 96,
absolutely.

An act entitled "An act to enable mothers, in certain cases, to
appoint testamentary gaurdians, being a supplement to an act,
bearing the same title, approved June tenth, one thousand eight
hundred and eighty-one, and also a supplement to an act, entitled
'An act relating to certain duties and rights of husband and wife,
and parents and children,' approved May fourth, one thousand
eight hundred and fifty-five," approved May 25, 1887, P. L. 264,
absolutely.

Section 5 of an act entitled "An act relating to husband and
wife, enlarging her capacity to acquire and dispose of property,
to sue and be sued, and to make a last will, and enabling them to
sue and to testify against each other in certain cases," approved
June 8, 1893, P. L. 344, absolutely.

An act entitled "An act declaring the construction of words in
a deed, will or other instrument importing a failure of issue," ap-
proved July 9, 1897, P. L. 213, in so far as it relates to devises
or bequests of real or personal estate.

An act entitled "An act to amend section two of an act, en-
titled 'An act further to regulate proceedings in courts of justice,
and for other purposes,' approved the sixth day of May, Anno
Domini one thousand eight hundred and forty-four, relating to
devises and legacies to brothers or sisters, or the children of broth-
ers or sisters of any testator, and preventing the lapse thereof in
the case of the death of such devisee or legatee during the lifetime
of the testator," approved July 12, 1897, P. L. 256, absolutely.

An act entitled "An act relating to elections by surviving hus-
bands or wives to take under or against the wills of decedents ; to
the recording thereof, and of final decrees, where parties have
failed or refused to elect when required so to do ; and forbidding
payments to such parties until they have made and filed their elec-
tion," approved April 21, 1911, P. L. 79, absolutely.

An act entitled "An act to amend section eleven of an act, en-
titled 'An act relating to corporations and to estates held for cor-
porate, religious, and charitable uses,' approved the twenty-sixth



170 WILLS ACT SECTION 27

day of April, one thousand eight hundred and fifty five," approved
June 7, 1911, P. L. 702, in so far as it relates to estates, real or
personal, bequeathed or devised.

An act entitled "An act to amend an act approved the eighth
day of April, one thousand eight hundred thirty-three, entitled
'An act relating to last wills and testaments,' by conferring the
same rights upon the mother as upon the father," approved April
J 5 I 9 I 5 P- L. 124, absolutely.

An act entitled "An act to amend an act, approved the tenth day
of June, one thousand eight hundred eighty-one, entitled 'An act
to enable mothers in certain cases to appoint testamentary guard-
ians/ by extending certain rights to mothers," approved April
21, 1915, P. L. 145, absolutely.

All other acts of assembly, or parts thereof, that are in any way
in conflict or inconsistent with this act, or any part thereof, are
hereby repealed, so far as relates to the estates, real and personal,
of any person or persons dying on or after the thirty-first day of
December, 1917.



THE REGISTER OF WILLS ACT

of
June 7, 1917 (P. L. 415).



PRELIMINARY NOTES BY COMMISSION.

In Section 5, the power of the register to revoke letters of ad-
ministration is stated, in accordance with the existing law.

In Section 8, an additional remedy is provided where any per-
son having in his possession or under his control a testamentary
paper conceals or withholds the same.

In Section 9, the register is given additional power to subpoena
witnesses.

In Section 16, the probate of a will or the refusal to probate it
by a register is made conclusive unless an appeal be taken within
two years instead of three as the present law provides, and the
remedy is expressly limited to an appeal from the register's decree.

In Section 18, provision is made for the removal of contested
will cases from the register's office to the orphans' court, in order
to avoid the delays that sometimes occur under the present practice.

In Section 21 (a), it is provided that appeals from all the judi-
cial acts of the register must be taken within two years, and that
the period may be limited to six months in case of those parties
who have actual notice by citation.

TABLE OF CONTENTS.

1917 Section

Pamphlet Number

Laws Herein

The Register of Wills Act 415 254

Section i. Oath and bond of register, 417 255

(a) Oath, 255

(b) Bond, 256

1. Form and approval, 256

2. Acknowledgment ; recording and fil-

ing of bond, 257

3. Copies of record of bond as evidence, 258

4. Provisions not to apply to certain

counties, 259

(c) No liability on bond where letters granted

under order of court, 418 260

Section 2. Deputy register, 261

Section 3. Jurisdiction of register, 262

171



172



REGISTER OF WILLS ACT CONTENTS



1917 Section

Pamphlet Number

Laws Herein

Section 4. Before what register will shou!d be pro-
bated, 263

Section 5. Revocation of letters of administration

by register 264

Section 6. Probate of nuncupative wills, 265

Section 7. Probate of copies of wills proved in

other States or counties 419 266

Section 8. Citation to person having custody of

will ; certification to orphans' court, 267

Section 9. Subpoenas to witnesses ; attachments ;

witness' fees and mileage, 268

Section 10. Commissions or rules to take deposi-
tions, 420 269

Section n. Recording and filing wills; certified

copies 270

Section 12. Wills or papers in other than English

language, 271

(a) Translation to be furnished, filed, and

recorded, 271

(b) Effect of failure to furnish translation, 421 272
Section 13. Recording inventories and appraise-
ments, 273

Section 14. Certified copies of bonds, inventories,

accounts, et cetera, to be furnished by

register, 274

Section 15. Filing copies of wills and probates in

other counties 275

Section 16. Effect of probate 422 276

(a) Conclusiveness 276

(b) When no probate within three years;

effect as to conveyance or mortgages, . . 277

Section 17. Precept by register to common pleas for

issue d. v. n., 278

Section 18. Certification of record to orphans'

court on order of court, 423 279

Section 19. Certifying record to orphans' court,

where there are difficult or disputable

questions, 424 280

Section 20. Caveats, 281

(a) Bond, 281

(b) Failure to give bond, 282

(c) Costs on caveat or appeal 425 283

(d) Appeals from orders as to security and

taxation of costs, 284



REGISTER OF WILLS ACT SECTION i (a), (&) i 173

1917 Section

Pamphlet Number

Laws Herein

Section 21. Appeals to the orphans' court, 285

(a) Period for appeal, 285

(b) Effect of appeal, 286

Section 22. Bill of costs, 287

Section 23. Procedure to collect costs 426 288

Section 24. Register to collect fifty cents for use

of Commonwealth, 289

Section 25. Short title section, 290

Section 26. Repealer, 426-9 291

254. TITLE.

AN ACT

Relating to the qualifications, jurisdiction, powers and duties
of registers of wills, and regulating proceedings before said reg-
isters, and the costs thereof, the effects of their acts, and appeals
therefrom.

255. OATH AND BOND OF REGISTER, OATH.

SECTION i. (a) Be it enacted by the Senate and House of
Representatives of the Commonwealth of Pennsylvania in Gen-
eral Assembly met, and it is hereby enacted by the authority of
the same, That every person who shall be elected or appointed
to the office of register of wills, before he shall enter upon the
duties of the office, shall make oath or affirmation to support the
constitution of the United States and the constitution of this
commonwealth, and to perform the duties of the office of register
with fidelity.

NOTE. This is the first part of Section I of the Act of March 15, 1832,
P. L. 135, 4 Purd. 4075, which was derived from the provisions of the
federal and state constitutions, Section 3 of the Act of March 14, 1777,
i Sm. L. 443; Section i of the Act of March 12, 1791, 3 Sm. L. 8; and
Section 9 of the Act of April 6, 1830, P. L. 272.

In the first line, the words "elected or" have been inserted.

256. BOND, FORM AND APPROVAL.

(&) i. He shall also, with one or more sureties, to be approved
by the judge or judges, if there be more than one, of the orphans'
court of the county for which the register shall be elected or ap-
pointed, and also by the governor, give a joint and several bond
to the commonwealth, in a sum equal to half the sum prescribed



174 REGISTER OF WILLS ACT SECTION i (fe) i, 2, 3

by law for the official bond of the sheriff for the time being of the
same county, with condition faithfully to execute the duties of
his said office, and well and truly to account for and pay, accord-
ing to law, all moneys received by him for the use of the common-
wealth, and to deliver up the books, seals, records and other writ-
ings, belonging to his said office, whole, safe and unde faced, to
his successor in office ; which said bond shall be for the use of all
persons concerned, and for the relief of all who may be aggrieved
by the acts or neglect of such register.

NOTE. This is the remainder of Section I of the Act of 1832. The
provision of the Act of 1832 was that the sureties should be approved by
"two judges of the Common Pleas." Section 2 of the Act of March 24,
1877, P. L. 37, 4 Purd. 4076, provided that in counties having separate
orphans' courts the approval should be by the judge or judges of the
orphans' court, except in counties having less than 300,000 inhabitants.
Section i of the Act of April 27, 1911, P. L. 87, 6 Purd. 7297, amends the
act of 1877 by omitting the proviso. There seems to be no good reason



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 18 of 71)