Raymond Moore Remick.

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

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orphans' court from the decision of the register of wills admitting a will
to probate, is the exercise of a judicial power, and on appeal to the
orphans' court from the order of the register fixing the amount of such
bond, the court is confined to a review of the discretion exercised by the
register; and where this discretion has not been judiciously exercised,
the register will be reversed. Alexander's Est., 28 Dist. 993 t 33 York I.



REGISTER OF WILLS ACT SECTION 20 (b), (c), (d) 193

282. FAILURE TO GIVE BOND.

(&) In case no bond, such as aforesaid, shall be filed with the
register within ten days after the filing of any caveat or appeal,
as aforesaid, such caveat or appeal shall be considered as aban-
doned, and shall be dismissed, and proceedings may be had in all
respects as if no such caveat or appeal had been filed.

NOTE. This is Section 2 of the Act of June 6, 1887 (P. L. 359), 4 Purd.
4087, the only change being to substitute "respects" for "cases" in the next
to the last line.

283. COSTS ON CAVEAT OR APPEAL.

(c) Such registers of wills and the orphans' court of the
proper county, in all cases of appeal from the decree of the reg-
ister, shall have power, and they are hereby directed, in all cases
which may be instituted or adjudicated before them or any of
them, and in all proceedings which may be had upon or by reason
of any such caveat or appeal, to determine what amount of costs
has been incurred or occasioned by the proceeding, and to direct
by whom such costs shall be paid; and when such costs or any
part thereof shall be finally adjudged and decreed to be paid by
any caveator or appellant, as aforesaid, any party to whom such
costs are due and payable, or who may have advanced money to
pay the same as the proceedings shall have progressed, may insti-
tute an action in the proper court upon such bond for his own
benefit, or that of all other parties interested, and may proceed
thereon to final judgment and execution, if the same shall be nec-
essary, as in other cases.

NOTE. This is Section 3 of the Act of June 6, 1887, 4 Purd. 4087, modi-
fied by changing the word "direct" to "determine" in line 7, and by omit-
ting after that word, "in the final order or judgment he or they shall make
in each case."

284. APPEALS FROM ORDERS AS TO SECURITY

AND TAXATION OF COSTS.

(d) All the orders and decrees of the said register of wills re-
lating to the amount and sufficiency of the security to be required
by this section and to the taxation of costs in proceedings upon
caveats and appeals before him, as aforesaid, shall be subject to
the right of appeal to the orphans' court of the proper county by
or on behalf of any and every person, who may appear or have
appeared before him as litigants, or who may be affected by such
order or decree.

13



194 REGISTER OF WILLS ACT SECTIONS 20 (d)-2i (o)

NOTE. This is Section 4 of the Act of June 6, 1887, 4 Purd. 4087, ex-
cept that, in line 3, "section" is substituted for "act," and "taxation" for
"disposition," and, at the end, "or decree" is substituted for "of appeal,"
the latter words having apparently been used in the Act of 1887 by mis-
take.

Although under Section 20, sub-division (o) and (d) of the Register
of Wills Act of June 7, 1917, P. L. 415, the orphans' court is confined to
a review of the discretion exercised by the register of wills in fixing the
amount of security to effect an appeal from his decision admitting a will
to probate, the court will review the action of the register and reduce the
amount of the bond where his discretion has not been judiciously
exercised. Alexander's Est., 28 Dist. 993, 33 York I.

285. APPEALS TO ORPHANS' COURT, PERIOD
FOR APPEAL.

SECTION 21. (a) From all the judicial acts and proceedings of
the several registers, including all decisions granting an issue
devisavit vel non in a contest concerning the validity of a will,
appeals may be taken to the orphans' court of the respective
county within the term of two years: Provided, That any party
entitled to appeal may be cited by such court to show cause why
he should not appeal within six months from the date of such cita-
tion, and, on the failure of such party to show cause, said court
may make an order limiting the time for such appeal by said party
to said period of six months.

NOTE. This is founded on Section 31 of the Act of March 15, 1832,
4 Purd. 4082, which was derived from Section 2 of the Act of September
30, 1791, 3 Sm. L. 58.

It is now modified as follows: The provision of the Act of February
28, 1905, P. L. 26, 6 Purd. 7298, allowing an appeal from the granting by
the register of an issue devisavit vel non, is incorporated; the reference
to a register's court is omitted; the period for appeal is reduced from
three years to two ; and the proviso is added to cover cases where parties
entitled to appeal delay unreasonably in doing so.

See form 73.

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 testamen-
tary. The orphans' court is without jurisdiction to review a register's
decree admitting a will to probate except on appeal as provided by the Act
of June 7, 1917, Section 21, P. L. 415. Burtop's Estate, 66 P. L. J. 765.

Only the register of the county where decedent resided should grant
letters on his estate.



REGISTER OF WILLS ACT SECTIONS 21 (a), (&)-22 195

A register from another county in such case may appeal from the decree
of the register granting the letters.

In so holding, Gummey, J., said, inter alia: "When we examine the act
which gives a right of appeal (Section 21 of the Register of Wills Act
of 1917), we find that there are no restrictions as to the parties entitled
to exercise that right. Of course the appeal must be taken by a party in
interest: See Curtis's Estate, 253 Pa. 389. * * *

"That the Register of Wills of Delaware County has a pecuniary in-
terest in the controversy must be conceded, as in the event of the will
being probated in his county, he would be entitled to receive not only the
fees which accrue to him by the act of probate, but also the compensation
allowed him as the agent of the commonwealth for the collection of the
collateral inheritance tax to which this estate is subject; but, passing this,
it seems to me that the register of wills of every county is charged with
the duty of seeing that the laws relating to his office are enforced and
obeyed; for if the register of wills, in a matter of this kind, has not a
right of appeal, who would have that right, if all of the beneficiaries
under a will, with an intention to evade the law, probated a will in a
county other than the one designated by the Register of Wills Act? It
is one of the protections given to creditors that the provisions of the act
shall be strictly followed. Creditors are charged with knowledge of the
law, and, knowing the law, they would naturally look for the probate of
a testator's will in the county which the law designated as the proper
county for that purpose ; but if the view here contended for should be
sustained, it would not be difficult for an executor, by collusion with the
beneficiaries, to probate in Allegheny County, or in any other county to
which a passing fancy might lead them, a will required by law to be pro-
bated in Philadelphia County. * * * The appeal is sustained." Cook's
Est., 47 Pa. C. C. 84, 27 Dist. 1006. See, also, Winsor's Est., 47 Pa. C. C.
105, 27 Dist. 1010, 32 York 131; affirmed in 264 Pa. 552, 107 Atl. 888.

286. EFFECT OF APPEAL.

(&) No appeal from any decree of the register, concerning
the validity of a will or the right to administer, shall suspend the
powers or prejudice the acts of any executor or administrator to
whom letters have been granted.

NOTE. This is founded on a part of Section 42 of the Act of March 15,
1832, 4 Purd. 4092, which relates to appeals from the register's (orphans')
court, and is considered in the draft of the new Orphans' Court Act.

287. BILL OF COSTS.

SECTION 22. In counties wherein separate orphans' courts are
now or may be established, the said courts shall establish a bill of
costs to be chargeable to parties and to estates, for the probate of
wills and testaments, and granting of letters testamentary and of
administration, and for all the services of the register of wills of



196 REGISTER OF WILLS ACT SECTIONS 22-23-24

such county in the transaction of the business of his office: Pro-
vided, That the tax to be paid to and received by the register for
the use of the commonwealth shall not be less than the sum now
or hereafter fixed by law : And provided further, That in coun-
ties wherein no separate orphans' courts have been or shall be
established, the law as to fees to be charged by registers of wills
shall remain as heretofore.

NOTE. This is Section i of the Act of March 24, 1877, P. L. 37, 2 Purd.
1651, and 4 Purd. 4081.

The second proviso has been added in order to show that it is not the
intention of the present draft to deal with the subject of fees and salaries
of registers now regulated by Section 7 of the Act of April 2, 1868, P. L.
10, 2 Purd. 1650, Section 37 of the Act of March 15, 1832, P. L. 145, or
local acts.

The Commissioners have considered it best not to attempt to include
this subject or the subjects of the appointment of clerks, stenographers,
etc., and their salaries.

288. PROCEDURE TO COLLECT COSTS.

SECTION 23. Whenever any proceedings before a register shall
be wholly ended, and the fees and costs accrued thereon shall re-
main, during the space of thirty days thereafter, due and unpaid,
such register may file a bill thereof, under his hand and the seal of
his office, in the orphans' court of the county ; and upon the
docketing thereof, an execution may be issued in the name of the
commonwealth, to levy the amount of the said bill, in like manner
as executions may issue out of the orphans' court to enforce pay-
ment of decrees of that court for the payment of money.

NOTE. This is Section 38 of the Act of March 15, 1832, 4 Purd. 4081,
which was new in that act. In the second line, "or register's court" is
omitted after "register."

In line 6 "orphans' court" is substituted for "common pleas," it seem-
ing more appropriate that the remedy should be in the former court.

289. REGISTER TO COLLECT FIFTY CENTS FOR

USE OF COMMONWEALTH.

SECTION 24. On the probate of any will, and the granting of
letters testamentary thereon, also on the granting of any letters
of administration, every register shall demand and receive for the
use of the commonwealth, in each case, the sum of one dollar?

x As changed from "fifty cents" by Act of April 16, 1921 (P. L. 94).



REGISTER OF WILLS ACT SECTIONS 24-25-26 197

NOTE. This is Section 36 of the Act of March 15, 1832, 4 Purd. 4081,
which was stated by the Commissioners to have been derived from Section
5 of the Act of April 6, 1830, P. L. 272. The latter section is printed in
4 Purd. 4595. The repeal of Section 5 of the Act of 1830 is recommended.

290. SHORT TITLE.

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

291. REPEALER.

SECTION 26. The following acts and parts of acts of assembly
are hereby repealed as respectively indicated. The repeal of the
first section of an act shall not repeal the enacting clause.

Sections I, 2, 5 and 8 of an act entitled "An act concerning the
probates of written and nuncupative wills, and for confirming de-
vises of lands," passed 1705, i Sm. L. 33, absolutely.

Sections 14, 15 and 16 of an act entitled "An act for establish-
ing orphans' courts," passed March 27, 1713, I Sm. L. 81, abso-
lutely.

An act entitled "An act for establishing in the city of Philadel-
phia, and in each county of this state, an office for the probate and
registering of wills, and granting letters of administration, and an
office for the recording of deeds," passed March 14, 1777, I Sm.
L. 443, in so far as it relates to registers of wills.

Section 5 of an act entitled "An act to confer on certain asso-
ciations of the citizens of this commonwealth the powers and im-
munities of corporations, or bodies politic in law," passed April 6,
I 79 I > 3 Sm. L. 20, absolutely.

Section 2 of an act entitled "A supplement to the act, entitled
'An act to establish the judicial courts of this commonwealth, in
conformity to the alterations and amendments in the Constitu-
tion,' " passed September 30, 1791, 3 Sm. L. 58, absolutely.

Section 5 of an act entitled "An act for the levy and collection
of taxes upon proceedings in courts, and in the offices of register
and recorder, and for other purposes," approved April 6, 1830,
P. L. 272, absolutely.

Sections i to 5, inclusive, 7 to 13, inclusive, 17, 25, 31, 32, 36,
38, 39, 42 and 43 of an act entitled "An act relating to registers
and registers' courts," approved March 15, 1832, P. L,. 135, abso-
lutely.



198 REGISTER OF WILLS ACT SECTION 26

Section 10 of an act entitled "An act supplementary to an act
passed the twenty-ninth day of March, one thousand eight hundred
and thirty-two, entitled 'An act relating to orphans' courts,' and
relating to contracts of decedents and escheats in certain cases,
and relative to the district court of the City and County of Phila-
delphia, and to registers of wills," approved April 3, 1851, P". L.
305, absolutely.

Sections 4 and 5 of an act entitled "An act for the preservation
of the records of the courts," approved April 19, 1856, P. L. 458,
absolutely.

Section 7 of an act entitled "An act for the greater certainty of
title and more secure enjoyments of real estate," approved April
22, 1856, P. L. 532, absolutely.

An act entitled "An act relating to the fees and official bond of
the register of wills in counties wherein separate orphans' courts
are or may be hereafter established," approved March 24, 1877,
P. L. 37, absolutely.

An act entitled "An act to provide for the recording of inven-
tories and appraisements of decedents' estates by the register of
wills," approved June 24, 1885, P. L. 155, absolutely.

An act entitled "An act to authorize registers of wills and or-
phans' courts to require security for costs, and to apportion costs
in cases of caveats and appeals," approved June 6, 1887, P. L. 359,
absolutely.

An act entitled "An act to provide for the recording of exem-
plifications of wills relating to real estate in the office of the reg-
ister of wills for any county of this commonwealth, in which said
real estate is situate, and giving to the records of such exempli-
fications the same effect as the original wills or their duly certified
copies or their records," approved April 23, 1889, P. L. 48, abso-
lutely.

An act entitled "An act requiring all public records within this
commonwealth to be kept in the English language," approved May
31, 1893, P. L. 188, in so far as it relates to wills and other in-
struments offered for probate or recording in the office of the
register of wills.

An act entitled "An act amending section seven of an act, en-
titled 'An act for the greater certainty of title and more secure
enjoyments of real estate,' approved twenty-second day of April,
Anno Domini one thousand eight hundred and fifty-six, relating



REGISTER OF WILLS ACT SECTION 26 199

to the time when the probate or refusal to probate a will shall be
conclusive as to realty," approved June 25, 1895, P. L. 305, abso-
lutely.

An act entitled "An act authorizing appeals to orphans' courts
from decisions of registers of wills, granting issues devisavit vel
non in cases of contested wills," approved February 28, 1905, P.
L. 2,6, absolutely.

An act entitled "An act providing that the last will of any de-
cedent, to be effective against bona fide conveyances or mort-
gages of the real or personal estate of the decedent, must be offered
for probate within three years from the date of the death of the
testator, or before the date of the recording of such conveyance
or mortgage," approved April I, 1909, P. L. 79, absolutely.

An act entitled, "An act to amend the second section of an act,
approved the twenty-fourth day of March, Anno Domini one
thousand eight hundred and seventy-seven, entitled 'An act relat-
ing to the fees and official bond of the register of wills, in counties
wherein separate orphans' courts are or may be hereafter estab-
lished,' by removing the restriction as to population oi the coun-
ties affected by the act," approved April 27, 1911, P. L. 87, abso-
lutely.

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.



THE INTESTATE ACT

of
June 7, 1917 (P. L. 429).



PRELIMINARY NOTE BY COMMISSION

In this revised act, the Commissioners have followed the phrase-
ology of the existing statutes in accordance with their resolution
to make, as a general rule, only such verbal changes as might be
necessary where a substantive change of the law is intended.

It is well at this point to note two important changes which af-
fect the entire act. The first is that the same scheme of inheritance
is provided for both real and personal estate, thus ignoring the
distinction that exists at present by which the interests of the sur-
viving spouse or of parents are in some cases restricted to a life
interest in the realty while their interests in the personal estate are
absolute.

The reason for this distinction is purely historical ; the common
law rules of inheritance of real estate came through the feudal
law, while the statutes of distribution of personal estate were de-
rived through the Roman law, and were in England administered
by the Ecclesiastical Courts and the Court of Chancery. Many
of the resulting distinctions have long since been abolished in this
commonwealth, and it is now suggested that a further step be
taken, in thus providing that the interests of those entitled shall be
in fee in both realty and personalty. However venerable the origin
of the present law may have been, the Commissioners think that
the difference has now become purely arbitrary and produces an
artificial inequality. It is a pure accident whether at the moment
of a man's death his property consists of lands or stocks and bonds,
of ground rents issuing out of land or mortgages secured upon
lands; all these are merely forms of property and the rights of
heirs and next of kin should not be affected by matters of accident
rather than of substance. Land, owing chiefly to its characteristic
of immobility, may properly, and indeed sometimes must, be sub-
ject to different rules from personalty in such matters as the
method of taxation or conveyance, the regulation of liens, mort-
gages or pledges; but in such cases there is an inherent reason
for the difference, which finds no place in a logical plan of inher-

200



INTESTATE ACT 2OI

itance or succession. We, therefore, recommend to the legislature
that all property where the owner dies intestate shall descend or
be distributed according to one system. This, in the words of a
distinguished legal scholar, Frederic W. Maitland, "is what a civil-
ized jurisprudence requires, and here as always scientific juris-
prudence is on the side of convenience and common sense."

The second important change which the Commissioners recom-
mend is that the reciprocal rights of husband and wife in each
other's intestate estate should be the same. Under the present law,
the widow, if there be no issue, takes one-half of the real estate
for life and one-half of the personal estate absolutely, and in addi-
tion, under the recent Act of April I, 1909, P. L. 87, 5 Stew.
Purd. 6476, five thousand dollars in real or personal estate as she
may elect, before the division of the remainder of the estate. If
there be issue, the widow takes one-third of the real estate for life
and one-third of the personal estate absolutely. The surviving
husband, on the other hand, if there be no issue takes all his wife's
real estate for life as tenant by the curtesy, and all the personal
estate absolutely, while if there be issue the husband divides the
personal estate with the children share and share alike, that is he
takes a child's share. These provisions are the resultant of the
gradual growth and changes in our law during many years and
their complexity is in practice greatly increased by the different
rights given to the surviving husband and wife in electing to take
against the will of the other; the wife having the right to take
the same share of her husband's estate, real and personal, as she
would have taken had he died intestate; while the surviving hus-
band, in case he elects to take against his wife's will, has not the
right to take as in cases of intestacy, but may choose either to take
the real estate as tenant by the curtesy or the same share of her
estate as she might take of his estate, in case she took against his
will. There is no apparent reason why the reciprocal rights of
husband and wife in each other's intestate estate should be so dif-
ferent, and the Commissioners are of opinion that they should be
simplified ; that there should be given to the surviving husband or
wife, in case of intestacy, the same right in the estate, real and per-
sonal, of the other, and the same right in cases of testacy, to take
under the intestate law. The Commissioners have embodied such a
provision in their draft of the new Wills Act submitted herewith,
and it is suggested that these changes will reduce our law upon the
subject to a symmetrical and harmonious plan.



202 INTESTATE ACT CONTENTS

While they are not so fundamental, other changes are recom-
mended which deserve particular notice.

In Section I (a), it is provided that where an intestate leaves a
surviving spouse and issue one child only, or descendants of one
child, the spouse shall take one-half instead of one-third of the
estate.

In Section 2, the special allowance of $5,000 to a surviving
spouse where there is no issue is restricted to the case of actual
intestacy, and no longer applies when the surviving spouse elects
to take against the will. The procedure for the appraisement and
setting apart of the property specially allowed is defined with
greater exactness than under existing laws.

In Section 4, the rights of a surviving husband in remainder
estates vested in his deceased wife are extended so as to be uni-
form with those of a surviving wife.

In Section 9, the distinction in the inheritance of real estate be-
tween the whole and half blood is abolished ; and in Section 13 the
rule at present surviving in some cases as to the restriction of in-
heritance to persons of the blood of the first purchaser is likewise
abolished.

In Section 15, the right of inheritance in cases of illegitimacy
is extended to the maternal grandfather, and illegitimate children
are legitimated by the marriage of their parents without the pres-
ent requirement of cohabitation.

In Section 16, the rights of adopted children are more accurately
defined in accordance with the present legislative policy.

In Section 23, it is provided that no murderer shall inherit from
the person whom he has killed the present law on this subject
seeming to the Commissioners to be opposed to the sentiments of
morality.

Both this and the proposed Wills Act are made operative only
upon the estates of persons dying on or after a day named, sub-
sequent to the approval of the acts.

TABLE OF CONTENTS.

1917 Section

Pamphlet Number

Laws Herein

The Intestate Act, 429 292

v Section i. Surviving spouse and issue, 431 293

\/ (a) Surviving spouse and one child, or de-
scendants of one child, 294



INTESTATE ACT CONTENTS



203



1917


Section


Pamphlet


Number


Laws


Herein


^(b) Surviving spouse and more than one




child, or descendants of more than one




child,


295


V Section 2. Surviving spouse and no issue, but col-




lateral heirs,


296


V(a) Allowance of five thousand dollars and




one-half of remaining estate,


296


(b) Appraisement and appraisers, 432


297


(c) Confirmation of appraisement,


298


(d) Allowance out of real estate valued at




more than five thousand dollars,


299


(e) Title to such real estate, 433


300


(f) Rents, income, interest, and dividends of




property set apart,


301


(g) Real estate in another county,


301



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 21 of 71)