Raymond Moore Remick.

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

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Philadelphia County, but adds that he shall "receive therefor ten cents
for making said entry of each paper, and each item of property briefly
described; and for certificates thereof, the same fees as for recording
done in his office, besides thirty-seven and a half cents for the seal.-"

The repeal of these sections is recommended as obsolete and unneces-
sary.

274. CERTIFIED COPIES OF BONDS, INVENTORIES,

ACCOUNTS, ETC., TO BE FURNISHED BY
REGISTER.

SECTION 14. It shall be the duty of every register to make and
certify, under the seal of his office, true copies of all bonds, in-
ventories, accounts, actings and proceedings whatsoever, remain-
ing in his office, being thereunto required by any person having
an interest therein, and to deliver the same, within a reasonable
time, to such person applying therefor, on receiving the fee
allowed to him by law for such copy or copies ; and if any register
shall refuse, after the tender of his lawful fees, to make or de-
liver such copy or copies as aforesaid, the orphans' court of the
county may, on petition filed by the person so applying to the
register, make and enforce such order upon said register as may
be necessary to enforce his duty as aforesaid.

NOTE. This is Section 32 of the Act of March 15, 1832, 4 Purd. 4079,
which was Section 39 of the Commissioners' Draft and was "framed with
a view to some provisions in the Act 27th March, 1713, Section 16 (i Sm.
L. 81) and also in the statutes 21 H. 8, c. 5, Section 5." In the present
draft, the words at the end, beginning "the orphans' court," have been
substituted for "he shall be deemed guilty of a misdemeanor in office."
The remedy suggested seems more appropriate than an indictment or
impeachment, and in the sec ion as it now stands no penalty is provided
for the misdemeanor.

275. FILING COPIES OF WILLS AND PROBATES IN

OTHER COUNTIES.

SECTION 15. In any case in which a last will or testamentary
paper shall have been duly proved before the register of wills
for any county of this commonwealth, and shall relate to real
estate in any county thereof, it shall be lawful to take from the
office of such register a copy of said will or paper and of the
probate thereof, duly certified by such register, under his seal of
office, to be a full and perfect copy of the same, and to file the



REGISTER OF WILLS ACT SECTIONS 15-16 (a) 185

said copy in the office of the register of wills in any county in
which any of the real estate owned by the testator may be, which
said register shall forthwith record the said copy. And the record
of such copy shall be, and is hereby declared to be, as valid and
effectual in law as the original will or paper after probate, or its
duly certified copy, or its record would be for all purposes of
vesting title, of evidence and of notice.

Like proceedings may be had at the instance of any party in-
terested to obtain the certification of all subsequent proceedings
appearing in the records of the register of wills concerning such
probate.

NOTE. This is Section i of the Act of April 23, 1889, P. L. 48, i Purd.
1073, altered by omitting, after "thereof" in line 4, the following words :
"and the probate of this will has become conclusive respecting real estate,
either by lapse of time or by judgment of the proper court having juris-
diction." The reason for prohibiting the filing of copies in other counties
during this period is removed by the addition of the last paragraph.

The word "copy" has been substituted for "exemplification," since a
copy certified by the register is all that the section requires, and an ex-
emplified copy is ordinarily understood to be one authenticated in ac-
cordance with the Acts of Congress.

276. EFFECT OF PROBATE, CONCLUSIVENESS.

SECTION 16. (a) The probate or refusal of probate by the reg-
ister of the proper county of any will, or any other paper pur-
porting to be a will or codicil thereto, shall be conclusive as to
all property, real or personal, devised or bequeathed by such will
or codicil or other paper, unless, within two years from the date
of such probate or refusal of probate, those interested shall ap-
peal from the decree of the register as herein provided : Provided,
That all persons who would be sooner barred by this section
taking immediate effect shall not be thereby barred before two
years from the date hereof.

NOTE. This is founded on Section i of the Act of June 25, 1895, P. L.
305, i Purd. 1072, which amended Section 7 of the Act of April 22, 1856,
P- L. 533, by reducing the period from five years to three.

The Act of 1895 reads as follows :

"The probate or the refusal of probate by the register of the proper
county of any will, or any other paper purporting to be a will or codicil
thereto, devising real estate, shall be conclusive as to such realty unless,
within three years from the date of such probate or refusal of probate,
those interested to controvert or sustain it shall, by caveat and action
at law duly pursued, contest the validity of such will as to such
realty or claim thereunder by such action duly prosecuted to final judg-



i86 REGISTER OF WILLS ACT SECTIONS 16 (a), (b)-ij

ment in favor of the plaintiff therein : Provided, That all persons who
would be sooner barred by this section taking immediate effect shall not
be thereby barred before two years from the date hereof."

In Wilson v. Gaston, 92 Pa. 207, the language of the Act of 1856 was
criticised adversely, and it was held that the "action at law" referred to
was an issue d. v. n., and an action of ejectment did not lie to contest the
probate of a will. The word "caveat" is also inappropriate, since a caveat
necessarily precedes "the probate or refusal of probate." In Wall v.
Wall, 123 Pa. 545, it was held that the probate of a will might be col-
laterally attacked in ejectment where it appeared on the face of the pro-
ceedings that the register was without jurisdiction because the will was
not signed at the end by the decedent. The ground of this decision was
not the language of the Act of 1856, but the general rule that any judg-
ment may be collaterally attacked for want of jurisdiction.

In the present draft, the section is made to apply to personal as well
as real estate, the period is reduced from three years to two, and the
words "appeal from the decree of the register as herein provided," are
substituted for the provision as to "caveat and action at law."

The latter change is in accordance with the opinion in Wilson v. Gaston,
supra, and does not interfere with the principle announced in Wall v.
Wall, supra.

Cited in Burtop's Est, 66 P. L. J. 765.

277. WHEN NO PROBATE WITHIN THREE YEARS;

EFFECT AS TO CONVEYANCE OF REAL
ESTATE.

(fc) The last will of any decedent may be offered for probate
at any time: Provided, That if such will shall not have been
offered for probate within three years from the date of the death
of the testator, the same shall be void and of no effect against a
bona fide conveyance or mortgage of the real estate of said de-
cedent, duly recorded before the date of the offering of said will
for probate.

NOTE. The proviso is founded on Section i of the Act of April I, 1909,
P- L. 79, 5 Purd. 5884; the first part is new, but declaratory of the present
law.

278. PRECEPT BY REGISTER TO COMMON PLEAS

FOR ISSUE d. v. n.

SECTION 17. Whenever a caveat shall be entered against the
admission of any testamentary writing to probate, and the person
entering the same shall allege as the ground thereof any matter
of fact touching the validity of such writing, it shall be lawful for
the register, at the request of any person interested, to issue a



REGISTER OF WILLS ACT SECTION 17 187

precept to the court of common pleas of the respective county,
directing an issue to be formed upon the said fact or facts, and
also upon such others as may be lawfully objected to the said
writing, in substantially the following form, viz :

(L. S.) County, ss. The

Commonwealth of Pennsylvania: To the judges of the court of
common pleas of the said county, greeting: Whereas, A. B., on
the day of ,

in the year, etc., presented to G. H., our register of wills of said
county, for probate, a certain writing hereto annexed, purporting
to have been made the day of ,

in the year, etc. (or otherwise describing the paper in question),
which said writing the said A. B. avers is the last will and testa-
ment of the said C. D., and whereas E. D., who is a son and heir
of the said C. D. (or intermarried with F. D., who is a daughter
and heir, etc., according to the fact), hath objected before our
said register that the said writing was procured by duress and
constraint (stating the matters of fact objected), and whereas
the said A. B. (or E. D.) hath requested that an issue may be
directed into our said court to try by a jury the validity of the
said writing, and the matters of fact which may be objected there-
to in our said court ; therefore, we command you that you cause
an action to be entered upon the records of our said court, as of
the day of the delivery of this our precept into the office of the
prothonotary of our said court, between the said A. B. and
the said E. D., so that an issue therein may be formed upon the
merits of the controversy between the said parties, and tried
in due course according to the practice of our said courts in
actions commenced by writ ; and further, that you cause all other
persons who may be interested in the estate of the said C. D., as
heirs, relations or next of kin, devisees, legatees or executors, to
be warned, so that they may come into our said court and become
party to the said action, if they shall see cause, and that you cer-
tify the result of the trial so had in the premises into the office
of our said register.

Attest. G. H., Register of Wills of the said county.

And the facts established by the trial had and certified to the
register as aforesaid, shall not be re-examined by the said reg-
ister, nor upon any appeal from his decision.

NOTE. This is Section 13 of the Act of March 15, 1832, i Purd. 1070,
which was founded in part on Section 18 of the Act of April 13, 1791,
3 Sm. L. 28.



i88 REGISTER OF WILLS ACT SECTIONS 17-18

In line 10 the word "substantially" has been inserted. Section 43 of
the Act of 1832, I Purd. 1072, reads: "No immaterial variation from the
forms given and prescribed in and by this act, shall vitiate or render void
any proceedings in which said forms shall be used." The form in the
present section is the only one included in this draft, and it therefore
seems unnecessary to re-enact Section 43, the word "substantially" being
intended to have the same effect.

279. CERTIFICATION OF RECORD TO ORPHANS'
COURT ON ORDER OF COURT.

SECTION 1 8. Where a caveat is entered against the probate of
any last will or testamentary paper, or where there is a dispute as
to such probate or as to the granting of letters testamentary or of
administration, the orphans' court of the county in which said
will or testamentary paper has been offered for probate or said
letters testamentary or of administration have been applied for,
may, by general rule or by special order in the case, on the petition
of the register of wills of said county or of any party interested,
direct said register to certify the entire record thereto pertaining
to said court, which shall then determine whether the will or testa-
mentary paper shall be admitted to probate or an issue devisavit
vel non be directed to the court of common pleas of said county,
or whether said letters testamentary or of administration shall be
granted, in like manner as if the said will or testamentary paper
had been admitted to probate, or said letters testamentary or of
administration had been granted, by said register and an appeal
been taken to the orphans' court from his decree. The record
may be thus certified at any stage of the proceedings before the
register, and after its removal to the orphans' court no letters of
administration pendente lite shall be granted by the register except
by leave of the orphans' court on cause shown by any party in-
terested.

NOTE. This is a new section, intended to prevent the needless and
sometimes intentional delays which have often occurred in the prosecution
of proceedings before registers.

Where a petition was presented under this section alleging testamentary
incapacity and undue influence and an answer was filed denying the same
and no testimony was taken, the Court, in refusing the petition, held,
per Cummings, P. J. :

"From our examination of the section we are satisfied that the question
of certifying the record is discretionary. The only question, therefore,
for our decision, is, whether the court upon the presentation of a
petition alleging undue influence and incapacity or unsoundness of mind,



REGISTER OF WILLS ACT SECTION 18 189

which allegations are denied in answer, should certify the record, or
whether the court under such circumstances should direct that the
usual proceedings be had before the Register of Wills.

"After careful consideration and much thought we have decided that
we will not exercise such discretion in favor of the petitioner for the
reason should we do so we would be practically making a register's court
out of the orphans' court. Under such circumstances as these, if we
should so decide, any person might by the mere presentatiqn of a petition
upon mere allegation of want of capacity or undue influence, remove any
proceeding from the register into the orphans' court. We are unable to
see any reason whatever, from our examination of the record, why this
proceeding should be removed.

"We are satisfied that the same will not be delayed if proceeded with in
the regular way before the register, and in the event of any delay we are
quite well satisfied that the register would ask that the same be certified."
Fonda's Estate, 5 Northumberland 249.

Where the entire record pertaining to the application of letters, a
caveat having been filed, was certified by the Register of Wills to the
orphans' court under this section of the act, the matter in controversy
being the legitimacy of an alleged son and heir of the decedent, and in
this proceeding a petition was presented by the said alleged son under
Section 18 of the Register of Wills Act asking that an issue d. v. n. be
directed, the court held that the disputed fact was not material or essen-
tial to the determination of the question of the grant of letters of
administration and refused to grant the issue. Wand's Est, 50 Pa.
C. C. 516.

When an order by the orphans' court upon the Register of Wills to
certify the entire record of a proceeding before him, in accordance with
Section 18 of the Act of June 7, 1917, P. L. 415, is lodged with him, his
jurisdiction over the matter ends, and letters of administration pendente
lite granted pursuant to an appointment made by him before service of
the order are void and will be vacated. After service of the order the
register may not act in the matter except by leave of court.

The register's appointment of a person as administrator pendente lite
is not the equivalent of a grant of letters, and, hence, cannot be perfected
by granting letters after service of the order.

When the provisions of Section 18 of the act are invoked, an appeal
from the register does not lie, as the certification of the record and the
disposition of disputed or controverted matters by the court de novo is
a substitute for an appeal.

"Jurisdiction is in the register to grant letters of administration gen-
erally, including letters pendente lite under special circumstances, and the
proceeding is well defined.

Section 4 of the Fiduciaries Act of June 7, 1917, P. L. 447, provides
that the register 'may, when the circumstances of the case require, grant
to any fit person or persons letters * * * pendente lite, security to be
entered as in other cases of administration.' But Section 7, par. a, of
said act, provides that before the register issue letters he shall administer
an oath in the prescribed form. Section 8, par. a, provides that upon his



REGISTER OF WILLS ACT SECTION 18

grant of letters he shall take a bond as there required. If he grant such
letters (par. d of said section) without these prerequisites, 'such letters
shall be void.' Letters are not to issue unless bond has been previously
given : Moore v. Rahm, 2 S. & R. 375- In such a case, by the very terms
of the law the letters are void: Bradley v. The Com., 31 Pa. 522. Failure
to take the oath at the time may not per se void the grant of Letters,
but failure to give the bond has a very different effect : Beeber's Appeal,
99 Pa. 596. The register having made his selection (Hawkin's Orphans'
Court Practice, Sec. 28), the next steps are the oath and the bond, 'and
thereupon the issue of the letters.'

"The register's appointment as of October 19 was not a grant of
letters; it had no status as such by law or in practice. Before the
register granted letters in compliance with the act, he was directed to
certify the entire record to this court, it appearing that a caveat had been
entered and a dispute as to the probate and grant of letters existed
under Section 18 of the Register of Wills Act of 1917. This order was
mandatory. From the moment of delivery, to the register his hand was
stayed. He was directed to certify what had then been done. The
attempted grant of letters on the 2oth was, in the face of the order of
the iQth, an illegal exercise of power over a matter no longer in his
jurisdiction; for it is in this tribunal where from October 19 the ques-
tions will be determined whether the will shall be probated or an issue
awarded, or whether letters pendente lite shall be granted. From this
tribunal alone, after the date of delivery of the mandatory order, may the
register have leave to grant letters of administration pendente lite.

"It is strongly urged that only by appeal has this court jurisdiction of
the matters in dispute. Such was the law touching all acts of the register
excepted to prior to Section 18 of the Act of 1917.

"This provision is new, and, say the commissioners, 'is intended to
prevent the needless and sometimes intentional delays which have often
occurred in the prosecution of proceedings before the registers.' This
section, after providing that the orphans' court may direct the certification
of the entire record, prescribes the course of procedure; this shall be
'in like manner as if an appeal had been taken from the register's decree.'

"The answer, therefore, to the contention that an appeal only can lie
is in Section 18 itself. When its provisions are invoked, an appeal does
not lie. The certification of the record and the disposition of disputes
or controverted matters by this court de novo is a substitute for an
appeal. There is in the proceeding a bar a mandatory order directing
the register to certify an entire pending proceeding. The attempted
exercise of power of appointment after this order is void.

"As Section 18 of the Register of Wills Act distinctly provides that,
following the certification of a proceeding and its removal to the orphans'
court, no letters of administration pendente lite shall be granted, except
by leave of the orphans' court on cause shown by any party interested,
application may now be made to this court by any person interested,
with due notice to all persons interested to show cause why letters
pendente lite should be granted, and if such cause be shown, the register
will have leave to grant letters, after due notice to all parties interested



REGISTER OF WILLS ACT SECTIONS 18-19 191

(Bieber's Appeal, n Pa. 167) to some fit and wholly disinterested person:
Warner's Appeal, 207 Pa. 580." Henry's Est., 30 Dist. 945, 69 P. L. J.
737, 35 York 122.

280. CERTIFYING RECORD TO ORPHANS' COURT,
WHERE THERE ARE DIFFICULT OR DIS-
PUTABLE QUESTIONS.

SECTION 19. Where objections are made, or a caveat is entered,
against the probate of any last will and testament, and no precept
for an issue is directed by the register into the court of common
pleas as aforesaid, or where, objections are made to the granting
of letters testamentary or of administration to any person apply-
ing therefor, or where any question of kindred or other disputable
and difficult matter comes into controversy before any register,
he may certify the entire record thereto pertaining to the orphans'
court of the county, for the determination by said court of such
disputable and difficult matter, giving convenient notice of the
time when the matter will be heard in said court to all persons
interested.

NOTE. This is founded on Section 25 of the Act of March 15, 1832, 4
Purd. 4081, which provided for the appointment of a register's court to
determine such matters. It has been held that the section was not re-
pealed by the abolition of registers' courts by the constitution of 1874,
and that such matters are now to be certified to the orphans' court : Com.
v. Clark, i W. N. C. 330. The section has been revised accordingly.

The draft, instead of providing that the register "shall, at the request
of any person interested, certify the entire record," etc., provides that the
register may certify the record and omits the provision as to request by
a person interested. The last preceding section of the draft provides a
method for the compulsory removal of the record, and it seems best to
make the certification under the present section discretionary with the
register.

In the provision as to notice, the words "by citation or otherwise," fol-
lowing "said court," and the words "and to the judges of said court,"
after "persons interested," and, at the end, the words, "and in the mean-
time, he shall do and receive all proper acts preparatory to the business
of said court," have been omitted as being inappropriate since the
abolition of the register's court.

A paper purporting to be the will of decedent was offered for probate
and it was objected to for the reason that it was not legible and therefore
meaningless ; that it was informal and there was no proof of its execution
with testamentary intent ; that the signature was not the signature of the
decedent. Held, that (under the above section) there arose such a dis-
putable question of fact as should be passed upon by the jury and should be



192 REGISTER OF WILLS ACT SECTIONS 19-20 (a)

certified to the court of common pleas, that an issue might be framed to try
the same.

In a proceeding under this section of the act where the register has cer-
tified the record to the orphans' court for the determination of disputable
and difficult matter, the testimony of experts to aid the court in reading an
alleged will may be heard if the characters are difficult to be deciphered or
the language, whether technical or local or provincial or altogether foreign,
is not understood by the court ; in which case the evidence of persons skilled
in deciphering writings, or who understood the language in which the
instrument is written, or the technical or local meaning of the terms which
are employed, is admissible to declare what are the characters or to trans-
late the instrument or decipher the proper meaning of particular words.

Cross' Est., i Erie 83.

281. CAVEATS, BOND.

SECTION 20. (a) It shall not be lawful for any register of wills,
having jurisdiction of the probate of wills and the granting of
letters testamentary and of administration within this common-
wealth, to entertain, consider or regard any caveat against the
probate of any last will and testament, or the granting of letters
testamentary or of administration, or any appeal from the probate
of any such will, or from the grant of any letters testamentary
or of administration, unless such caveator or caveators, appellant
or appellants, shall, within ten days after the filing of such caveat
or appeal, enter into a bond, in the name of the commonwealth
of Pennsylvania, with at least two sufficient sureties to be ap-
proved by the register, in a penal sum of not less than five hun-
dred dollars and not to exceed five thousand dollars, as may be
determined by the said register, conditioned for the payment of all
or any costs which may be occasioned by reason of such caveat or
appeal, and which may be decreed by such register or by the
orphans' court to be paid by such caveator or appellant, which
bond shall remain on file in the office of such register.

NOTE. This is Section i of the Act of June 6, 1887, P. L. 359, 4 Purd.
4086.

See forms 3, 51-2.

The fixing of the amount of the bond to be filed by an appellant to the



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 20 of 71)