Raymond Moore Remick.

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

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why this section should not apply in all counties. Where there is no
separate orphans' court, the approval will be by the same judges as under
the Act of 1832, but they will act in the matter as judges of the orphans'
court, which seems appropriate.

257. ACKNOWLEDGMENT, RECORDING AND FIL-

ING OF BOND.

2. Every person elected or appointed as aforesaid shall cause
the bond hereinbefore prescribed, being duly acknowledged by
him and his sureties, before a judge of the orphans' court of the
county, to be recorded by the recorder of deeds of the county,
and as soon afterwards as convenient, to be transmitted into the
office of the secretary of the commonwealth for custody, of which
transmission he shall be entitled to receive the secretary's certifi-
cate, without fee or reward.

NOTE. This is Section 2 of the Act of March 15, 1832, 4 Purd. 4075,
which was founded on Section i of the Act of March 12, 1791, 3 Sm.
L. 8.

It is now altered by inserting in the first line the words "elected or,"
and by substituting "judge of the orphans' court of the county" for
"magistrate of the city or county respectively."

258. COPIES OF RECORD OF BOND AS EVIDENCE.

3. Copies of the record of the official bond of any register,
acknowledged and recorded as aforesaid, and duly certified by
the recorder of deeds for the time being, shall be good evidence,



REGISTER OF WILLS ACT SECTIONS i (6) 3, 4 (O-2 175

in any action brought against him or his sureties, on such bond,
according to its form and effect, in the same manner as the
original would be, if produced and offered in evidence.

NOTE. This is Section 3 of the Act of March 15, 1832, 4 Purd. 4076,
which was founded on Section i of the Act of March 12, 1791, 3 Sm. L. 8.

259. PROVISIONS NOT TO APPLY TO CERTAIN

COUNTIES.

4. The provisions of this clause shall not apply to registers of
wills in counties having over eight hundred thousand and under
one million five hundred thousand inhabitants according to the
last preceding United States census.

NOTE. This is inserted to exclude counties within the provisions of the
Act of April 28, 1915, P. L. 198, 5 Purd. 5360.

260. NO LIABILITY ON BOND WHERE LETTERS

GRANTED UNDER ORDER OF COURT.

(c) Whenever letters testamentary or of administration shall
have been heretofore, or shall be hereafter granted bv the register
of wills of any of the counties in this commonwealth, by the
direction and in pursuance of an order of the orphans' court, and
conformably thereto, the said register and his sureties shall not
be liable on the register's official bond for any loss or damage
which may have accrued or which may hereafter accrue to any
person in consequence of the compliance of said register with the
said order of the orphans' court.

NOTE. This is Section 10 of the Act of April 3, 1851, P. L. 305, i Purd.
1080.

261. DEPUTY REGISTER.

SECTION 2. Every register shall appoint and keep a deputy, to
officiate in his absence, for whose conduct he and his sureties
shall be accountable ; and such deputy shall be capable in law to
take the probate of wills and testamentary papers, and to grant
letters testamentary and of administration, and to do whatever
else by law appertains to the office of register.

NOTE. This is Section 4 of the Act of March 15, 1832, 4 Purd. 4076,
which was founded on Section 6 of the Act of March 14, 1777, i Sm. L.
443, with the addition of the provision as to liability of the sureties.

The words "testamentary papers" have been substituted for "testaments,"
and the words "testamentary and" have been inserted after "letters."



176 REGISTER OF WILLS ACT SECTIONS 3-4.

262. JURISDICTION OF REGISTER.

SECTION 3. Every register qualified to act, as aforesaid, shall
have jurisdiction, within the county for which he shall have been
elected or appointed, of the probate of wills and testamentary
papers, of the granting of letters testamentary and of administra-
tion, of the passing and filing of the accounts of executors and
administrators, and of any other matter whereof the jurisdiction
may be at any time expressly annexed to his said office ; and the
act of any register, in any matter whereof another register has
the exclusive jurisdiction, shall be void and of no effect.

NOTE. This is Section 5 of the Act of March 15, 1832, 4 Purd. 4077,
which was new in that act.

The words "elected or" have been inserted in line 3. The words "testa-
mentary papers" have been substituted for "testaments" in line 4, and the
words "and guardians" omitted in line 6.

Section 5 of the Act of April 6, 1791, 3 Sm. L. 20, 4 Purd. 4079, makes
it the duty of the register to give notice of legacies to public corporate
bodies. Section 66 of the Act of February 24, 1834, i Purd. noo, imposed
that duty upon the executors, and seems to have superseded the above
section of the Act of 1791, which is therefore recommended for repeal.
See the note to Section 18 of the Fiduciaries Act, (see 459-464 supra)
which is founded on Section 66 of the Act of 1834.

See Cook's Est, 47 Pa. C. C. 84, 27 Dist. 1006.

263. BEFORE WHAT REGISTER WILL SHOULD BE

PROBATED.

SECTION 4. Wills shall be probated only before the register of
wills of the county within which was the family or principal resi-
dence of the decedent, at the time of his decease, and, if the de-
cedent has no such residence in this commonwealth, then only
before the register of the county where the principal part of the
goods and estate of such decedent within this commonwealth
shall be.

NOTE. This is a new section, modeled upon Section 2 (a) (see 355
infra) of the Fiduciaries Act, which relates to the granting of letters
testamentary and of administration.

"Section 4 of the Register of Wills Act of 1917 is mandatory in its
requirement that wills shall be probated only before the register of wills
of the county within which was the family or principal residence of the
decedent at the time of his death, and, therefore, in view of the un-
contradicted evidence that this testator's family residence at the time of
his death was in Delaware County, the register of wills of Philadelphia



REGISTER OF WILLS ACT SECTIONS 4-5 177

County had no jurisdiction to probate his will. See Wall v. Wall, 123
Pa- 545" Gummey, J., in Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006.

Where a testator has two residences in different counties, one in a city
and one in the country, and lives in both of them at different times in the
year, the question which of them is to be considered as his family or
principle residence is one of intention. (See Bumpus's Est., 23 Dist. 654,
citing Evan's Est., 17 Dist. in.) and where such testator directs his at-
torney to state in the will, that he was a resident of the county in which
his city house was situated, probate in that county will be sustained
although he voted and paid the personal tax in the county where his
country house was situated. Winsor's Est., 47 Pa. C. C. 105, 27 Dist.
1010, 32 York 131 ; affirmed in 264 Pa. 552, 107 Atl. 888, on the ground
that when decedent declared his residence in his will it was his last
formal declaration of intention and he did nothing thereafter to indicate
the choice of a different residence.

264. REVOCATION OF LETTERS OF ADMINISTRA-
TION BY REGISTER.

SECTION 5. Any register of wills shall have power to revoke
letters of administration granted by him whenever it shall be
made to appear to him that such letters have been granted to, or
on the nomination of, persons who are not the next of kin of the
decedent entitled to administer, or whenever, after the granting
of letters of administration, a will of the decedent shall be duly
proved and admitted to probate.

NOTE. This is a new section, intended to be declaratory of the exist-
ing law and to remove any possible doubt as to the original jurisdiction
of the register in the cases mentioned, as distinguished from the revoca-
tion of letters testamentary.

See form 71.

Where letters of administration have been granted to a niece and
nephew, there being no children, and without information to the register of
other nieces and nephews, the register may revoke said letters in the in-
terest of all concerned, and to correct an honorable misunderstanding.

In an appeal from decision of register revoking letters of administration,
the court, in an opinion of Harman, J., said, inter alia:

"Prior to the passage of the Act referred to, (Sec. 5) there was no
statutory enactment authorizing the register of wills to revoke letters,
yet it was held in numerous cases since the old Act of 1832, which here-
tofore governed, that the register had a right to revoke the letters of ad-
ministration for cause shown.

These decisions, (Headley's Est., 39 Pa. C. C. 165, 21 Dist. 586; Mc-
Caffrey's Est., 38 Pa. 331; Shomo's Appeal, 57 Pa. 356; Neidig's Est, 183
Pa. 492) and many others of like import, establish the right of the register
to revoke in the instances cited in the absence of any direct statutory enact-
12



178 REGISTER OF WILLS ACT SECTIONS 5-6 .

ment giving him that power. And if Section 5 of the Act of 1917, referred
to, was merely intended to be declaratory of the existing law, we seriously
question whether the register is now limited in his power to revoke letters
in the two instances cited in Section 5. He has said in the order filed
revoking the letters that he does it "to correct an honorable misunder-
standing in the granting of the letters in the first instance." Of the four
reasons given by him in his order, this is the only one to which we are
inclined to give serious consideration. The others seem to us to be with-
out weight, and alone, would not justify his decree." Sharpless' Est., 28
Dist. 746, 15 Del. 16, 20 Luz. 161.

A petition addressed to the orphans' court to revoke letters of ad-
ministration, will be dismissed. Such petition must be addressed to the
register of wills. The court, per Wilhelm, P. J., held, inter alia:

"Under the authorities cited it is our duty to dismiss this petition
because the attempt to have the orphans' court exercise its jurisdiction is
premature. This is the law as it stood before the Register of Wills Act
of 1917, which contains this clause: (Section 5, supra.) This is a new
section intended to be declaratory of the existing law and to remove any
possible doubt as to the original jurisdiction of the register in the cases
mentioned." Wehry's Est., 47 Pa. C. C. 486, 15 Schuyl. 262, 33 York 68.

A register of wills, having admitted a will to probate and granted
letters testamentary thereon, is without jurisdiction, upon the presentation
of an alleged later will, to revoke said letters. A register of wills may
revoke letters of administration improvidently granted but not letters tes-
tamentary. The orphans' court is without jurisdiction to review a reg-
ister's decree admitting a will to probate except on appeal as provided
by the Act of June 7, 1917, Section 21, P. L. 415. The court, per Corbet,
P. J., held, inter alia:

"That the register was without jurisdiction to entertain the petition for
the revocation of the letters testamentary referred to. Under Section 5
of the act last referred to, the register has power to revoke letters of
administration granted by him, but no such power is given him with re-
spect to letters testamentary." Burtop's Est, 66 P. L. J., 65.

265. PROBATE OF NUNCUPATIVE WILLS.

SECTION 6. No nuncupative will shall be admitted to probate,
nor shall letters testamentary thereon be issued till fourteen days
after the day of the death of the decedent be fully expired, nor
shall any nuncupative will, at any time, be admitted to probate,
unless process have first issued to call in the surviving spouse of
the decedent, if any, and such of his or her relations or next of
kin as would be entitled to the administration of his or her estate
in case of intestacy, to contest the same, if they please.

NOTE. This is Section 10 of the Act of March 15, 1832, i Purd. 1068,
which was derived in part from Section 5 of the Act of 1705, I Sm. L.
33. In the present draft, "surviving spouse" is substituted for "widow."



REGISTER OF WILLS ACT SECTIONS 6-7-8 179

Section n of the Act of 1832, i Purd. 1068, also relating to nuncupative
wills, is embodied in Section 4 (c) of the new Wills Act (see 220 supra.)

266. PROBATE OF COPIES OF WILLS PROVED IN

OTHER STATES OR COUNTIES.

SECTION 7. Copies of wills and testaments proved in any other
state, territory or possession of the United States of America, or
any foreign country according to the laws thereof, and duly au-
thenticated, may be offered for probate before any register having
jurisdiction, and proceedings thereon may be had, with the same
effect, so far as respects the granting of letters testamentary, or
of administration with the will annexed, as upon the originals ;
and if the executor or other person producing any such copy shall
produce also therewith a copy of the record of the proceedings
for the probate of the original, and of the letters testamentary,
or other authority to administer, issued thereon, attested by the
person having power to receive the probate of such original, in
the place where it was proved, with the seal of office, if there be
one, annexed, together with the certificate of the chief judge or
presiding magistrate of the state, country, county or district where
such original was proved, that the same appears to have been
duly proved, and to be of force, and that the attestation is in due
form, such copies and proceedings shall be deemed sufficient
proof, unless the contrary be shown, for the granting of letters
testamentary or of administration with the will annexed, as -the
case may require, without the production or examination of the
witnesses attesting such will.

NOTE. This is Section 12 of the Act of March 15, 1832, i Purd. 1068,
which was new in that act. The repeal of Section i of the Act of 1705,
i Sm. L. 33, is recommended.

See form 46.

267. CITATION TO PERSON HAVING CUSTODY OF

WILL; CERTIFICATION TO ORPHANS'
COURT.

SECTION 8. The register having jurisdiction, as aforesaid, shall,
at the instance of any person interested, issue a citation to any
person having the possession or control of a testamentary writing,
alleged to be the last will and testament of a decedent, requiring
him to produce and deposit the same in his office for probate;
and if such person shall conceal or withhold such writing, during
the space of fifteen days, after being personally served with a



i8o REGISTER OF WILLS ACT SECTIONS 8-9 .

citation issued in the manner aforesaid, it shall be the duty of the
register forthwith to certify the record of the proceeding to the
orphans' court of said county, and the said court, upon petition
of any person interested, shall proceed to enfore obedience to
said citation by attachment as in cases of citation issued from
said court.

NOTE. This is Section 7 of the Act of March 15, 1832, P. L. 136, I
Purd. 1067, which was new in that act.

The words following "manner and form aforesaid," and providing a
remedy by attachment in the orphans' court, are submitted for the pro-
vision of the Act of 1832 that the person "shall be liable to an indictment
as for a misdemeanor, or to an action for damages by the person ag-
grieved."

The provision quoted seems to be ineffectual, since no punishment for
the "misdemeanor" is prescribed, and it would usually be difficult if not
impossible to prove damages. It has been held that, under the Act of
1832, the orphans' court will not attach for failure to obey the citation
issued by the register; McDonald's Est., 14 Phila. 253. The change rec-
ommended would therefore seem to be advisable.

See forms 32, 72.

"If the forgery (of a will) was personally known to the alleged testa-
tor, he could, if competent, clear up the matter by another will, contain-
ing, if he chooses, merely a clause of revocation, except in those rare
cases where the alleged will would be irrevocable because contractually
made upon sufficient consideration, in which event 1 have no doubt he
could maintain a bill quia timet. So, too, it would lie at the instance of
anybody in interest, if the alleged testator was incompetent. If the paper
becomes known after his death, Sections 7 and 8 of the Act of March
15, 1832, P. L. 137, and Sections 8 and 9 of the Act of June 7, 1917, P.
L. 415, provide a complete remedy to compel the production of the docu-
ment, after which a caveat duly prosecuted would result in a conclusive
determination of the question of validity, either by a decree of the reg-
ister of wills or the orphans' court, or by judgment on the verdict of a
jury after issue awarded. From such a proceeding the parties claiming
under the alleged will could not withdraw, nor could they enter a dis-
continuance or suffer a nonsuit. In every contingency, therefore, we have
a statutory proceeding, providing a complete and therefore an exclusive
remedy." Per Mr. Justice Simpson in dissenting opinion in Fleming's
Est., 265 Pa. 399, 109 Atl. 265.

268. SUBPOENAS TO WITNESSES; ATTACH-
MENTS; WITNESS FEES AND MILEAGE.

SECTION 9. Whenever any testamentary writing shall be offered
for probate, or application shall be made for letters testamentary
or of administration, before any register having jurisdiction there-



REGISTER OF WILLS ACT SECTIONS 9-10 181

of, such register shall have power to issue a subpoena, with or
without a clause of duces tecum, to any person whose name may
be subscribed to such testamentary writing as a witness, or who
may be alleged to him to be otherwise capable of proving the due
execution of such testamentary writing, or to any person who
may be a material witness in the matter of such probate or of the
granting of letters testamentary or of administration, command-
ing him, under a penalty of three hundred dollars, to appear be-
fore said register at his office, at a day certain, not less than five
days from the service of such subpoena, and depose and testify
what he may know concerning the execution of such writing or
otherwise concerning such probate or the granting of letters ; and
if such person, being subpoenaed as aforesaid, shall refuse or
neglect to appear as commanded, the register shall have power
to issue an attachment against such witness to compel his ap-
pearance, or the party aggrieved may have an action against said
witness to recover the said penalty, in the manner allowable by
law in cases of subpoenas issued to witnesses by the courts of
common pleas. Witnesses appearing before the register in obedi-
ence to subpoenas as aforesaid shall be entitled to the same fees
and mileage as are allowed by law to witnesses in the orphans'
court.

NOTE. This is Section 8 of the Act of March 15, 1832, i Purd. 1067,
which was new in that act. It is now extended to include applications
for letters as well as for probate, and to apply to all witnesses and not
merely the subscribing witnesses. A subpoena instead of a citation is
provided for, and, by omitting words "such person being within the
county, or within thirty miles of the office of said register," the subpoena
is made to operate throughout the state. The provision for witness fees
and mileage is new.

Under Section 8 of the Act of 1832, it has been held that the register
has no power to summon any but the subscribing witnesses : Burns's
Will, ii Phila. 35; Com. v. Bunn, 71 Pa. 405.

See form 33. See Fleming's Est., 265 Pa. 399, 109 Atl. 265. (See 267
supra.)

269. COMMISSIONS OR RULES TO TAKE DEPOSI-
TIONS.

SECTION 10. On the application of any person interested, every
register shall have power to issue commissions or rules to take
the depositions of witnesses in other counties or states, or in
foreign countries, in all cases within his jurisdiction.



1 82 REGISTER OF WILLS ACT SECTIONS 10-11-12 (a)

NOTE. This is Section 9 of the Act of March 15, 1832, 4 Purd. 4079,
which was new in that act.

It is now altered by adding the words "or rules" after "commissions,"
and by omitting, at the end, the words "upon interrogatories filed in his
office." The purpose of these changes is to permit the taking of deposi-
tions on rule, without written interrogatories.

See form 34.

270. RECORDING AND FILING WILLS; CERTIFIED

COPIES.

SECTION ii. All original wills, after probate, and the copies of
all original wills produced under the provisions of this act, shall
be recorded and filed by the register of the respective county, and
shall remain in his office, except when required to be had before
a higher tribunal, by certiorari, or otherwise, and if removed for
such cause, they shall be returned in due course to the office where
they belong; and the copies of all the probates thereof, under the
public seals of the courts or officers where the same may have
been, or shall be so taken or granted respectively, except copies
of probates of such wills and testaments as shall appear to be
annulled, disproved or revoked, shall be adjudged and are hereby
enacted to be matter of record, and good evidence to prove the
gift or devise thereby made.

NOTE. This is Section 17 of the Act of March 15, 1832, i Purd. 1072,
which was derived in part from Section i of the Act of 1705, i Sm. L. 33.

271. WILLS OR PAPERS IN OTHER THAN ENGLISH

LANGUAGE; TRANSLATION TO BE FUR-
NISHED, FILED AND RECORDED.

SECTION 12. (a) Any and all person or persons who shall offer
for probate any will or codicil, or who shall offer any other writ-
ten or printed instrument to be recorded in any register's office
in this commonwealth, or to be filed in said office as required by
law, which will, codicil or instrument shall be in any other than
the English language, shall furnish at his, her or their expense,
to the register, a sworn translation in English of such instrument,
and the register shall attach or cause to be attached such trans-
lation to the original, and file both the original and the translation
of record in his office, in all cases where filing is now or hereafter
may be required by law ; but in all cases where recording is now



REGISTER OF WILLS ACT SECTIONS 12 (a), (6)-i 3 183

or hereafter may be required, both the original and the translation
in English shall be recorded.

NOTE. This is founded on Section i of the Act of May 31, 1893, P. L.
188, 4 Purd. 4053, which act includes also deeds, mortgages, and other
instruments to be recorded in any recorder's office or filed in any court
of record.

There is a similar local act in Berks County (Act of February 27, 1872,
P. L. 173) relating to wills.

272. EFFECT OF FAILURE TO FURNISH TRANSLA-

TION.

(&) The register of wills shall not file or mark filed, record
or mark recorded, any written or printed instrument in violation
of this section, nor shall any paper filed or recorded in violation
of this section be notice to any person in any legal proceeding
whatever, nor be received or considered in evidence in any pro-
ceeding at law, in equity or in the orphans' court.

NOTE. This is founded on Section 2 of the Act of May 31, 1893.

273. RECORDING INVENTORIES AND APPRAISE-

MENTS.

SECTION 13. It shall be the duty of the registers of wills of
the several counties of this commonwealth to record all inven-
tories and appraisements of the estate of any decedent, filed
in the office of the register of wills by the executor or admin-
istrator of any such decedent's estate, in a book to be provided
for that purpose; and the same shall be indexed by such reg-
ister of wills, in an index book provided for that purpose; and
true and attested copies or exemplifications of all such inven-
tories and appraisements, so enrolled, certified under the hand
and seal of such register of wills, shall be allowed in all courts,
when produced, and are hereby declared and enacted to be as
good evidence and as valid and effectual in law as the original
inventory and appraisement themselves ; and the said register of
wills shall be allowed, for performing such duties, the same fees
as are now allowed by law to such officers for performing similar
services.

NOTE, This is Section i of the Act of June 24, 1885, P. L. 155, i Purd.
1092.

Section 4 of the Act of April 19, 1856, P. L. 459, 4 Purd. 4080, provides :
"It shall be the duty of every register of wills to keep a minute-book,
duly indexed, in which shall be entered minutes, showing what papers



184 REGISTER OF WILLS ACT SECTIONS 13-14-15

have been filed in his office, and also what collateral inheritance taxes
have been paid, and on what estates."

Section 5 of the same act imposes the same duties on the register of



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 19 of 71)