Raymond Moore Remick.

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

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*This covers the first part of Section i of the Act of March 13,
1847, P- L. 319, 3 Purd. 3424.

5 This covers the jurisdictional provision of Section 2 of the Act of
April 20, 1869, P. L. 77, 3 Purd. 3423, and that part of Section i of the
Act of May 9, 1889, P. L. 146, 3 Purd. 3424, which provides that the or-
phans' court shall have jurisdiction in all cases of testacy, without respect
to "the fact of a widow's election not to take under the will."

'These words have been added to make it clear that the orphans'
court has jurisdiction in such cases. Section i of the Act of June 3, 1840,
P- L. 593, and Section 9 of the Act of April 5, 1842, P. L. 234, 3 Purd.
3412-13, refer only to "writs of partition." The second proviso of the Act
of 1840 is covered by Section 40 of this draft. (See 60, infra.) The first
proviso, as amended by the Act of 1842, is embodied in Section 2, infra.
(See 4, infra.)

7 This incorporates the provision of Section i of the Act of February
26, 1869, P. L. 4. 3 Purd. 3425, which was passed because of the decision
in Snyder's Appeal, 36 Pa. 166, that the estate of one decedent only could
be partitioned in a proceeding in the orphans' court, which had no juris-
diction where the tract was held in common by the same parties, partly
as devisees of their father and partly as heirs of their mother.



PARTITION ACT SECTION i (a), (6) 7

court shall not have such jurisdiction during the continuance of
any life estate in the whole of such real estate. 8

8 The proviso is new, being declaratory of the existing law : Lee's
Estate, 13 Phila. 291.

Where the decedent had, during his lifetime, sold and conveyed certain
real estate of which he was the owner in fee, without the joinder of his
wife, the court dismissed the widow's petition for the partition thereof
after his death, stating, with regard to the purview and scope of the act
"The very words of the enactment show that it applies only to the real
estate of which the decedent died seized, and excludes from its purview
and operation lands of which the decedent did not die seized. The language
of the act is so clear that even a layman can understand the same and no
canons of construction need be introduced to interpret its purposes or
enactments." Per Hughes, P. J., in Stockdale's Estate, 29 Dist. 1013.
(Note. This case contains a very extensive discussion of the previous
statutes relating to partition in the orphans' court out of which the Act
of 1917 was constructed.)

"The Act of March 13, 1847, P. L. 319, declares 'The jurisprudence of the
several orphans' courts of this Commonwealth, in the partition and valu-
ation of real estate, shall extend to any undivided interest, in fee simple,
in any lands or tenements of which any person has died or shall hereafter
die seized or possessed, as tenant in common or joint owner, with any
other person or persons, as fully as if such decedent were solely seized
or possessed thereof at the time of his or her death.' This is reenacted in
Section i of the Act of June 7, 1917, P. L. 337- The jurisdiction of the
common pleas being concurrent with that of the orphans' court in par-
tition proceedings, what is necessary in the one is requisite in the other.
In partition, whether in the common pleas or in the orphans' court, it is
incumbent on the party instituting the proceeding, if practicable to
embrace the whole of the undivided realty within the jurisdiction or
power of the court. There cannot be inquisitions upon it by parcels' :
Stickles vs. Oviatt, 212 Pa. 219. It was clearly practicable to include all
of the real estate of the common ancestor in one bill in the court below,
and it correctly so held." Opinion of the court in Gilpin vs. Brown, 268
Pa. 398; 112 All. 124.

3. COAL AND TIMBER LANDS.

(b) Partition may be made under this act of lands and coal-
rights therein, and of lands and timber-rights thereon, of any
decedent, whether the rights of all the parties be co-extensive
with the whole or not; and whether the rights of some of them
extend only to the lands and part of the coal therein, or only to
the land and part of the timber thereon, or only to an undivided
interest in the land, or in the coal therein or in the timber thereon ;
and any person having an interest as herein set forth may compel



8 PARTITION ACT SECTIONS i (fr)-2

partition of the entire tract of land and coal, or land and timber,
provided said coal or said timber has not been entirely severed so
as to constitute a separate estate.

NOTE. This is Section I of the Act of May 6, 1915, P. L. 269, 6 Purd.
7052, amending Section 3 of the Act of May 14, 1874, P. L. 156, 3 Purd.
3449. In the first line, "this act" has been substituted for "existing laws."

The repeal of the acts mentioned is recommended only so far as they
relate to the orphans' court.

4. PETITIONERS.

SECTION 2. The jurisdiction of the orphans' court under this
act shall be exercised on the petition of the surviving spouse of
the decedent, of any heir of the decedent in a case of intestacy,
or of any devisee having an interest in the real estate in question
in a case of testacy, whether the interest of such person be vested
in possession or in remainder, or of any person having a life
interest in an undivided share of such real estate, or of any alienee
or devisee of any party in interest. If the party be a weak-
minded person for whom a guardian has been appointed, or a
minor, lunatic or habitual drunkard, the petition shall be filed
by the guardian or committee of such party.

NOTE. This is founded on part of Section 36 of the Act of March 29,
1832, P. L. 201, 3 Purd. 3418. That section relates only to cases of
intestacy and provides for application by the widow or any lineal descend-
ant. It is now extended to include a surviving husband and collateral
heirs, parties entitled in remainder, and alienees or devisees of parties
in interest. Provision is also made for the cases of lunatics, etc., as
well as minors. This covers the provisions of Section i of the Act of
March 22, 1865, P. L. 31, 3 Purd. 3450, so far as they relate to partition
in the orphans' court. The provision as to life tenants of undivided
shares corresponds to the Acts of 1840 and 1842, referred to in Note 6
to^Section i (a) supra. (See 2 supra.)

Section 46 of the Act of March 29, 1832 (P. L. 202), 3 Purd. 3432 reads :
"When the decedent leaves no lineal descendants, the like proceedings shall
be had in all respects, on the application of the persons in whom the estate
shall vest in possession." This is covered by the present section of the new
draft. Under Section 46 it was held that jurisdiction was conferred only
when the application was made by those in whom the estate vested in
possession, and a collateral heir, entitled in remainder only, had no
standing: Negley's Estate, 23 Pitts. L. J. 41; Deshong's Estate, 6 Del.
Co. 519. Under the revised Intestate Act, collateral heirs will not take
if there are any lineal descendants, and when collateral heirs do take
their interests will vest at once, since the life estates of surviving spouses
and of parents are abolished.



PARTITION ACT SECTIONS 2-3 9

Section I of the Act of June 26, 1895, P- L. 381, amended by the Act
of June 10, 1901, P. L. 553, 3 Purd. 3450, and Section 2 of the Act of June
26, 1895 (P. L. 381), 3 Purd. 3451, provide for the appointment of a com-
mittee ad litem for lunatic defendants "in all actions or proceedings in
partition, and in all other actions and proceedings whatsoever, either at law,
in equity or in the orphans' court." It seems unnecessary to repeat these
provisions in the Partition Act.

Section 8 of the Act of April 24, 1843, P. L. 360, 3 Purd. 3434 pro-
viding a method for securing, before partition, the widow's dower interest
in property which was owned by the decedent in common or coparcenary
with others, is recommended for repeal as unnecessary, in view of the
provisions of Sections 2 and 12 (see 16 infra) of this draft.

The local Act of February 13, 1867, P. L. 160, 3 Purd. 3435, provides
that in all cases of testacy, on the petition of the widow or of her
personal representative, the court shall have power to appoint com-
missioners or award an inquest for the purpose of making partition or
valuation of the dower of the widow. This act relates to York and
Fayette Counties.

See form 56.

One having at least a life estate, if not a fee, under a will disposing
of an undivided fourth interest in certain real estate, is a proper party
to petition the court for partition under this section of the act. Klump's
Estate, 50 Pa. C. C. 99, 29 Dist. 1004.

A petition for an inquest in partition under this section of the act will
be dismissed where the guardian of the estate of minor heirs or devisees
has not been joined. A petition by a remaining trustee for a citation
directed against the parties in interest, to show cause why an inquest in
partition should not be granted, whereunder a citation was awarded
directed against two children who were of age and against no one else,
which children in their answer aver that a guardian appointed for three
other children who were minors had not been made a party to the pro-
ceedings, was dismissed. Herdle's Estate, 29 Dist. 817.

5. CITATION.

SECTION 3. On such petition, supported by oath or affirmation,
the court may award a citation, returnable at a day certain, not
less than ten days after the issuing thereof, directed to all the
parties in interest other than the petitioner or petitioners, to show
cause why an inquest in partition should not be awarded. Such
citation shall be served in the manner provided by law for the
service of other citations in the orphans' court.

NOTE. This is a new section, modeled on Clause i of Section 57 of
the Act of March 29, 1832 (P. L. 190) 3 Purd. 3373. It seems unnecessary
to repeat in this act the provisions as to service, publication, etc., contained
in the Orphans' Court Act.



10 PARTITION ACT SECTIONS 4-5-6

6. PARTIES RESPONDENT ; NOTICE TO UNKNOWN

PARTIES.

SECTION 4. All parties in interest, including those entitled in
remainder, shall be named in the petition, citation, decree and
notices, when known; but if it shall appear, on oath or affirma-
tion, that the names or residences of any of the parties are
unknown to the petitioner for the partition, the orphans' court
shall have the power to direct such notices as shall appear to
the court to be reasonable and proper to be given to such parties
by publication, describing the parties, as far as practicable ; and
the proceedings shall be as effectual, to all intents and purposes, as
if all the parties had been named in the proceedings.

NOTE. This is Section 2 of the Act of April 14, 1835, P. L. 275, 3 Purd.
3425, extended to cases of testacy as well as intestacy.

The following words have been inserted : "including those entitled in
remainder," and "citation," and the words "in the public newspapers"
have been omitted.

7. SERVICE OUTSIDE OF STATE.

SECTION 5. Where any of the parties in interest reside outside
of the commonwealth of Pennsylvania and their places of resi-
dence are known, the court may, in its discretion, authorize any
citations or notices provided for by this act, to be served upon
them personally or by registered mail, or direct publication
thereof.

NOTE. This is a new section. Where the residence of a party is known
and he can be personally served, constructive notice by publication is not
only unnecessarily expensive but futile. The proceeding being one in rem,
there can be no objection to service outside of the state which would not
apply equally to service by publication.

8. APPOINTMENT OF COMMISSIONERS, OR

AWARD OF INQUEST.

SECTION 6. If, on the return of such citation, no answer or an
insufficient answer be filed, or if, after hearing on petition, answer,
replication and proofs, it shall appear proper, the court may
appoint, on the agreement and nomination of the parties, three
or more commissioners to divide or value the real estate de-
scribed in the petition, with the same effect as a sheriff's inquest
for the same purpose, or, if the parties cannot so agree, may



PARTITION ACT SECTIONS 6-7 II

award an inquest to make partition among the parties in accord-
ance with their respective interests, the inquest to consist of
three men.

NOTE. The first three lines, to the word "proper," are new. The
provision as to awarding an inquest is taken from Section 36 of the Act
of March 29, 1832, P. L. 201, 3 Purd. 3418, except that the words "among
the parties in accordance with their respective interests" have been in-
serted, to cover cases where the interests are unequal, as was done by
Section 10 of the Act of April 10, 1849, P. L. 596, 3 Purd. 3424, which
related only to devises to two or more children, and is now recommended
for repeal.

The provision of Section 36 of the Act of 1832 for the appointment of
"seven or more disinterested persons" has been omitted, and the provision
of Section 4 of the Act of April 27, 1855, P. L. 369, 3 Purd. 3452, sub-
stituted.

The Act of May I, 1879, P. L. 40, 3 Purd. 3452, reduced
the number of jurors from twelve to six. The number is now reduced
to three.

The Acts of 1855 and 1879 apply to proceedings in the common pleas
as well as in the orphans' court and are recommended for repeal only
so far as they relate to the latter court.

9. COMPENSATION AND MILEAGE OF COMMIS-
SIONERS AND JURORS.

SECTION 7. The compensation of such commissioners, and of
the jurors when an inquest is awarded, shall be fixed by the
court, but shall not exceed five dollars a day each, for each day
engaged in making such partition and valuation, unless the parties
interested shall agree in writing to a larger compensation. Such
commissioners and jurors shall also receive in addition to their
daily pay three cents per mile circular for each mile necessarily
traveled by them, counting from the place at which said com-
missioners or jurors first met.

NOTE. Section 4 of the Act of April 27, 1855, P. L. 369, 3 Purd. 3452,
allowed the commissioners three dollars a day and did not provide for
mileage. Section 2 of the Act of April 17, 1856, P. L. 386, 3 Purd. 3455,
allowed the jurors one dollar per day and mileage.

The Commissioners consider that it is proper to fix the same maximum
compensation and to allow mileage in both cases. The increase to five
dollars a day is justified in cases involving the services of men experienced
in the valuation of real estate. The amount of the compensation is left
to the discretion of the court in every case.



12 PARTITION ACT SECTIONS 8-9 (o), (&)

10. MAKING OF PARTITION BY COMMISSIONERS,
OR INQUEST.

SECTION 8. The commissioners or inquest shall, if the same
can be done without prejudice to or spoiling the whole, make
partition of the real estate in purparts among the parties entitled
in accordance with their respective interests, whether such inter-
ests be equal or otherwise, and shall make return thereof to the
court.

NOTE. This is a new section, declaratory of the existing law and
introduced for the sake of completeness.

The provision for cases where the interests of the parties are not
equal is suggested by the second clause of Section 10 of the Act of April

10. 1849, P. L. 596, 3 Purd. 3424, which relates only to devises to two or
more children in unequal proportions. The first clause of that section is
covered by Section I (see 2 supra) of the present draft, and the last
clause is a validating provision. The section is recommended for repeal.

11. ACTION OF COMMISSIONERS OR INQUEST,

WHERE EQUAL PARTITION CANNOT BE
MADE; WHERE NO DIVISION IS POSSIBLE;
VALUATION OF THE WHOLE.

SECTION 9. (a) When any such estate cannot be divided among
the parties entitled thereto without prejudice to or spoiling the
whole, the said commissioners, or the said inquest, as the case
may be, shall make and return a just appraisement thereof to
the court.

NOTE. This is the first part of Section 37 of the Act of March 29,
1832, P. L. 201, 3 Purd. 3427, which was derived from Section 22 of the
Act of April 19, 1794, 3 Sm. L. 143.

It is now changed so as to apply in all cases and not merely to cases of
intestacy where the real estate descends to the widow and lineal descend-
ants. The word "commissioners" has been substituted in line 3 for
"seven or more persons."

The remainder of Section 37 of the Act of 1832 is covered by subse-
quent sections of this draft.

12. PURPARTS UNEQUAL IN VALUE.

(&) When equal partition in value, or partition in accordance
with the respective interests of the parties, cannot be made by
the said commissioners or the said inquest, they shall make a
just appraisement of the respective purparts or shares into which
they may divide the estate; and the court shall award that one



PARTITION ACT SECTIONS (6), (c)-io 13

or more of the purparts or shares shall be subject to the pay-
ment of such sum or sums of money as shall be necessary to
equalize the value of the said purparts, according to the said
appraisement thereof ; which sum or sums of money shall be
paid or secured to be paid, by the several persons accepting such
purparts, in the manner prescribed in Section 17 hereof. (See
23-5, infra.)

NOTE. This is Section 38 of the Act of March 29, 1832 (P. L. 190)
3 Purd. 3430, which was new in that act and was intended to provide for
the case "where partition can conveniently be made, but the value of the
shares cannot be equal." The words from "or" to "parties" in lines I
and 2 have been added, to conform to Section 8 of this draft. (See 10,
supra.)

The second clause of the section, relating to the order of allotment of
the purparts, is omitted here, being covered by Section 13 (see 17-19,
infra) of this draft.

13. PURPARTS NOT EQUAL IN NUMBER TO NUM-

BER OF PARTIES ENTITLED.

(c) When such estate cannot conveniently be divided
into shares equal in number to the number of parties entitled,
the said commissioners or the said inquest shall make a just
appraisement of the respective purparts or shares into which
they may divide the estate ; and the parties to whom such shares
shall be awarded, or some one in their behalf, shall pay or secure
to be paid to the other parties interested, their respective parts
of the value thereof, in the manner prescribed in Section 17
hereof. Sec 23-25 infra.)

NOTE. This is Section 39 of the Act of March 29, 1832, P. I,. 190, 3
Purd. 3431, which was derived in substance from Section 22 of the Act of
April 19, 1794, 3 Sm. L. 143. In line 2, "shares equal in number to the
number of" has been substituted for "as many shares as there are," the
intention being to cover cases where the number of purparts exceeds the
number of parties, as well as where there are fewer purparts than there
are parties entitled.

The portion of the section dealing with the allotment of the purparts
is omitted here, being covered by Section 13 (see 17-19, infra) of this
draft.

14. VALUATION OF UNDIVIDED INTEREST OF

DECEDENT.

SECTION 10. Where the decedent shall die seized or possessed,
as tenant in common or joint owner, of any undivided interest in



14 PARTITION ACT SECTIONS 10-11

fee-simple in any lands or tenements, the commissioners or
inquest shall value and return such interest, undivided, in all
cases; and if such decedent had other real estate, such interest
shall be valued and returned, either by itself, or in connection
with some other portion of such decedent's real estate, as one of
the purparts or shares into which they shall divide the whole real
estate; and upon the return thereof, the proceedings shall be as
in other cases.

NOTE. This is the last part of Section i of the Act of March 13, 1847,
P. I*. 319, 3 Purd. 3424, the first part of which is covered by Section I
(see 2 supra) of the present draft.

In line 8, "valued" is omitted before "as one of."

Under this section of the act it is incumbent on the party instituting
the proceedings, if practicable, to embrace the whole of the undivided
realty within the jurisdiction or power of the court. There cannot be
inquisitions upon it by parcels. Where a person dies seized in severalty
of three tracts of lands, and of undivided interests in two others, it is
error to file one bill for the partition of the land held in severalty, and
another for that of the undivided interests. Gilpin v. Brown, 268 Pa.
398, 112 Atl. 124.

15. RULE TO ACCEPT OR REFUSE THE WHOLE
OR PURPARTS AT THE VALUATION.

SECTION ii. In all cases of appraisement or partition men-
tioned in Sections 8 and 9 1 of this act, -the orphans' court shall
on application, grant a rule on all persons interested, including
those interested in remainder, to come into court, at a certain
day to be fixed by the court, to accept or refuse the estate, or a
share or portion thereof, as the case may be. A copy of such
rule shall be served upon each party personally, ten days before
the return thereof, in case such party resides within the county,
or if any party shall reside outside the county the court may, in
its discretion, authorize service of such rule upon him personally
or direct such publication thereof as shall appear to the court
to be reasonable and proper.

NOTE. This is founded on Section 40 of the Act of March 29, 1832
(P. L,. 190), 3 Purd. 3431. Provisions as to service of the rule similar to
those in Section 4 of this draft have been inserted, and Section 8 of the
Act of April 7, 1807, P. L. 155 (4 Sm. L. 398, at p. 401), 3 Purd. 3431.
is recommended for repeal.



1 (See 10-13 supra.)



PARTITION ACT SECTIONS 11-12-13 (o) 15

In line 4, "including those interested in remainder" has been inserted,
thus incorporating the provisions of Section 46 of the Act of 1832, 3 Purd.
3432, on this subject, and making them apply to cases of testacy as well
as intestacy. In line 5, "fixed by the court" has been substituted for "by
them to be fixed," because the latter words might well be taken to refer
to the parties and not to the court.

Section 40 of the Act of 1832 was founded on Section 8 of the Act of
1807, supra, the Commissioners remarking that they had made the pro-
visional general, "applying it to all cases of appraisement or partition
mentioned in the preceding sections." Section 40, however, applies only
to the cases mentioned in the preceding section; the draft was the same.
The section is, therefore, confined to the cases mentioned in Section 39
of the Act of 1832, namely, cases where the estate cannot conveniently be
divided into as many shares as there are parties interested. It is now
made to include cases where partition is made, where no division is
possible, and where the purparts are of unequal value.

The provision as to service or publication is made uniform with that in
Section 17 (&) (see 24 infra) of this draft.

16. BIDS ABOVE VALUATION.

SECTION 12. In all cases of partition of real estate now pending
or hereafter to be instituted, in any orphans' court, wherein a
valuation shall have been made or shall be made of the whole
or parts thereof, the same shall be allotted to such one or more
of the parties in interest, whether entitled in possession or in
remainder or to an undivided interest for life, and including the
surviving spouse of the decedent, who shall, at the return of the
rule to accept or refuse to take at the valuation, offer in writing
the highest price therefor above the valuation returned; but if
no higher offer be made for such real estate or any part thereof,
it shall be allotted or ordered to be sold as herein provided.

NOTE. This is part of Section i of the Act of May 8, 1909, P. L. 489,
6 Purd. 7052, except that the words from "whether entitled" to "de-
cedent" have been substituted for "widow."

The section was an amendment of Section 10 of the Act of April 22,
1856, P. L. 532, 3 Purd. 3453, which had previously been amended by the
Act of June I, 1907, P. L. 364. It applies to the common pleas as well, and
is to be repealed only so far as it relates to the orphans' court.

17. ALLOTMENT IN THE ABSENCE OF BIDS; OR-

DER OF CHOICE.

SECTION 13. (a) When no bid above the appraisement of such
real estate or any part thereof shall be made as provided in



16 PARTITION ACT SECTION 13 (a)

Section I2 l of this act, the court may order such real estate or
part thereof to and among the parties in interest, including those
entitled in remainder, as follows:

First. To the surviving spouse of the decedent if entitled,
under the intestate law or under the will of the decedent; to a
share of such real estate or part thereof in fee.



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 2 of 71)