Raymond Moore Remick.

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

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(h) Certified copy of decree to be recorded




and registered, 434


303


\ x Section 3. Widow's share in lieu of dower; share




in lands aliened by husband, and in es-




tate in remainder,


303


^Section 4. Surviving husband's share in lieu of




curtesy ; share in estate in remainder,


30S


/^Section 5- Husband's right barred by refusal to




provide for wife, or by desertion, ..... 435


306


Section 6. Widow's right barred by desertion, . . .


307


L^Section 7. Issue,


308


(a) Children,


309


(b) Grandchildren,


310


(c) Descendants in same degree of consan-




guinity,


3ii


(d) Descendants in different degrees of con-




sanguinity,


312


I. Shares of children,


313


2. Shares of grandchildren,


314


3. Issue taking by representation, .... 436


3iS


1 Section 8. Parents,


316


\*s- Section 9. Collateral heirs,


317


(a) Brothers and sisters,


3i8


(b) Nephews and nieces,


319


(c) Children of deceased brothers or sisters,




taking by representation,


320


(d) Descendants of brothers or sisters,


321


Section 10. Next of kin, 437


322


Section n. Limits of representation,


323


Section 12. Grandparents, and issue of deceased




grandparents,


324



204



INTESTATE ACT CONTENTS



1917 Section

Pamphlet Number

Laws Herein

(a) Children of deceased grandparent, 325

(b) Grandchildren of deceased grandparent, 326

(c) Descendants of deceased grandparent in

same degree of consanguinity, 438 327

(d) Descendants of deceased grandparent in

different degrees of consanguinity, .... 328

1. Children of deceased grandparent, 329

2. Grandchildren of deceased grand-

parent, 330

3. Issue taking by representation, ... 331
Section 13. Rule as to blood of first purchaser

abrogated, 332

Section 14. Foregoing provisions apply only to legiti-
mates, 333

Section 15. Illegitimates, 439 334

(a) Inheritance as between mother, grand-

parents, and child, 334

(b) Inheritance as between children, legiti-

mate and illegitimate, 335

(c) Legitimation as to mother, but not as to

father, 336

(d) Legitimation by marriage of parents, .... 337
Section 16. Adopted children 338

(a) Inheritance as between adopted person

and adopting parents, 338

(b) Inheritance as between adopted person

and adoptive relatives ; natural kindred

of adopted person excluded, 339

Section 17. Surviving spouse and no known heirs or

kindred 440 340

(a) Rights of surviving spouse 340

(b) Procedure, 341

Section 18. Estates passing to persons entitled under

the act, 441 342

Section 19. Persons in same degree of consanguinity
take equally,

Section 20. Posthumous children,

Section 21. Limitation of claims,

Section 22. Advancements 442

^ Section 23. Person adjudged guilty of murder not to

inherit from murdered person, 347

Section 24. Escheat, 348

Section 25. Act not to apply to personal estate of in-
testate dying domiciled outside the com-
monwealth, 349

Section 26. Short title section, 350

Section 27. When act shall go into operation, 351

Section 28. Repealer 442-7 352



INTESTATE ACT SECTION i () 205

292. TITLE.

AN ACT.

Relating to the descent and distribution of the real and personal
property of persons dying intestate, and to provide for the record-
ing and registering of the decrees of the orphans' court in con-
nection therewith and the fees therefor.

"The Act of 1917 was the result of the efforts of a commission, ap-
pointed by the Governor of the Commonwealth, to codify, or assemble
into one group, the numerous provisions on our statute books dealing with
the intestate law and kindred matters ; and the commission itself framed
the act. The bill thus prepared was passed by the legislature without
the slightest deviation from the recommendations of its draftsmen, so
far as the portions having any bearing on this case are concerned ; and,
when the historical development of this branch of our statutory law is
considered, together with the whole structure of the present statute, it is
apparent that no radical changes or departures from preexisting rules
of inheritance were intended. On the contrary, the mischief to be cor-
rected lay in the fact that there were too many acts covering the subject-
matter, not that the rules there laid down were either wrong or undesir-
able, and the remedy intended, at least as to the sections here involved
(see 322, 323, 324 and 343 infra.), was simply their codification, or putting
together, in a single act. Of course, this combination of various legisla-
tive enactments into one statute necessitated the insertion of certain in-
troductory parts, and, as already said, Section 10 is of that nature ; it
must be taken with the other parts, to which it is introductory, in order
to ascertain its true meaning." Moschzisker, C. J. in opinion January 3,
1922, in Miles' Est, 272 Pa. 329.

293. SURVIVING SPOUSE AND ISSUE.

SECTION i. Be it enacted by the Senate and House of Repre-
sentatives of the Commonwealth of Pennsylvania in General As-
sembly met, and it is hereby enacted by the authority of the same,
That the real and personal estate of a decedent, whether male or
female, remaining after payment of all just debts and legal charges,
which shall not have been sold, or disposed of by will, or other-
wise limited by marriage settlement, shall be divided and enjoyed
as follows: namely,

294. SURVIVING SPOUSE AND ONE CHILD OR DE-

SCENDANTS OF ONE CHILD.

(a) Where such intestate shall leave a spouse surviving and
one child only, or shall leave a spouse surviving and no children



206 INTESTATE ACT SECTION i (a)

but shall leave descendants of one deceased child, the spouse shall
be entitled to one-half part of the real and personal estate.

NOTE. The introductory paragraph is copied from Section i of the
Act of April 8, 1833, P. L. 315, 2 Purd. 1994, which was amended by the
Act of April i, 1909, P. L. 87, 5 Purd. 6476. Clause (a) is clause i of
the same section, amended so as to make the rights of husband and "wife
the same and to eliminate the distinction between real and personal prop-
erty in this regard, and to give the surviving spouse one-half of the estate
under the circumstances described.

Section i of the Act of 1833 was derived from Sections 3 and 4 of the
Act of April 19, 1794, 3 Sm. L. 143. The earlier acts provided, in sub-
stance, as follows: Act of 1683 (noth Law): "That the estate of an
intestate shall go to his wife, his child, or children." Act of 1684 (i72d
Law) : "One-third of the personal estate shall go to the wife; and one-
third of the lands and tenements during her natural life; * * * and in
case the intestate leaves no child, then half the^ personal estate to the
widow, and the moiety of the real estate during her natural life." Act
of 1693: "One-third to the wife, the residue among his children * * *;
and if there be no children nor legal representatives of them, one moiety
shall be allotted to the wife. * * * Provided, That where testators', or
intestates' personal estates are sufficient to pay all debts," and so forth,
"then the real estate to be distributed in manner following, * * * one-
third of all intestates' lands to the wife for life." Act of 1705 (3 Sm.
L. 156 n.) : "One-third part of the said surplusage to the wife of the in-
testate. * * * And in case there be no children, nor any legal represen-
tatives of them, then one moiety of the said estate to be allotted to the
wife of the intestate."

Section 8 of the Act of 1705 provided: "That the surplusage or remain-
ing part of the intestate's lands, tenements and hereditaments * * * shall
be divided between the intestate's widow and children, or the survivors
of them, who shall equally inherit and make partition, as tenants in com-
mon may or can do. But if the intestate leaves a widow and no child,
then such widow or relict shall inherit one moiety or half part of the said
lands and tenements."

Section 10 of the Act of 1705 provided: "That nothing in this act con-
tained shall give any widow a right or claim to any part of such lands
or tenements, for her dower or thirds, as shall yield yearly rents, or
profits, whereof her husband died seized, for any longer time than the
term of her natural life; which dower she shall hold as tenants in dower
do in England."

Section 2 of the Act of March 23, 1764 (3 Sm. L. 159 n.) provided:
"That the shares and purparts of intestates' real estates which by the act
for settling intestates' estates aforesaid are given to widows, shall be con-
strued and understood to be estates for their natural lives, respectively,
and not otherwise."

Section 5 of the Act of April 4, 1797 (3 Sm. L. 296) provided : "That
where any woman shall hereafter die intestate" leaving a husband, "he
shall take the whole personal estate, and the real estate shall descend



INTESTATE ACT SECTIONS i (a), (6)-2 (a) 207

and go in the same manner as is directed in the case of men dying intestate,
saving to the husband his right as tenant, by the curtesy."

In this section, the Commissioners have introduced a change which they
consider a much needed improvement. The Act of 1833 provides for two
cases : first, where there is no issue, and second, where there is issue.
This clause provides for the case where there is issue one child, or the
descendants of one child only; in which case the surviving spouse will
take not one-third, but one-half of the estate. It seems unjust where a man
dies leaving a widow and one child, often a minor, that the single child
should receive twice as much as its mother, and many cases of hardship
have been observed in practice. In Rowan's Estate, 132 Pa. 299, an
adopted child was thus held entitled to two-thirds of the estate as against
the widow.

In this section and throughout the act the Commissioners have used the
words, "surviving spouse," in place of "widow or surviving husband," and
the like, believing that the use of one word is preferable when there can
be no mistake as to the meaning, and where the interests of widow and
husband are made the same, as it is now suggested they should be.

"The Intestate Act of June 7, 1917, P. L. 429, places the husband and
wife on a parity as to inheritance from each other." Per Williams, J., in
Caldwell v. Caldwell, 70 Super. 332, p. 336.

295. SURVIVING SPOUSE AND MORE THAN ONE

CHILD OR DESCENDANTS OF MORE THAN
ONE CHILD.

(6) Where such intestate shall leave a spouse surviving and
more than one child, or one child and the descendants of a deceased
child or children, or the descendants of more than one deceased
child, the surviving spouse shall be entitled to one-third part of
the real and personal estate.

NOTE. This is a new clause, further amending clause i of Section i,
of the Act of 1833, along the same lines.

See Commonwealth v. Rife, 50 Pa. C. C. 22.

296. SURVIVING SPOUSE AND NO ISSUE BUT COL-

LATERAL HEIRS, ALLOWANCE OF $5,000
AND ONE-HALF OF REMAINING ESTATE.

SECTION 2. (a) Where such intestate shall leave a spouse surviv-
ing and other kindred, but no issue, the surviving spouse shall be
entitled to the real or personal estate, or both, to the aggregate
value of five thousand dollars, in addition, in the case of a widow,
to the widow's exemption as allowed by law; and, if such estate
shall exceed in value the sum of five thousand dollars, the sur-



208 INTESTATE ACT SECTION 2(0)

viving spouse shall be entitled to the sum of five thousand dollars
absolutely, to be chosen by him or her from real or personal es-
tate, or both, and in addition thereto shall be entitled to one-half
part of the remaining real and personal estate : Provided, That the
provisions of this clause as to said five tfiousand dollars in value*
shall apply only to cases of actual intestacy of husband or wife,
entire or partial, and not to cases where the surviving spouse shall
elect to take against the will of the deceased spouse.

NOTE. This is clause n of Section i of the Act of 1833, as amended
by the Acts of April i, 1909, P. L. 87, 5 Purd. 6476, and July 21, 1913,
P. L. 875, 5 Purd. 6478, further amended so as to apply expressly to hus-
band as well as wife, so as to be limited to cases of actual intestacy, and
so as to make the estate of the surviving spouse absolute in real as well
as personal property.

The words "collateral heirs" are omitted in the second line, as they ex-
clude parents and grandparents.

In accordance with their view that the interests of the surviving hus-
band and wife should be the same, the Commissioners have made the pro-
visions of the Act of April i, 1909, apply equally to both cases. The spe-
cial allowance of $5,000 where there is no issue, conferred upon the
widow by this act, appears to have been favorably considered during the
time it has been in operation, and no change in the amount is suggested.
The Act of April i, 1909, was most probably not intended by the legisla-
ture to apply to the case of a husband who should elect to take against
the will of his wife (there being no issue), but this result followed logically
from a consideration and comparison of the Acts of April 8, 1833, P- L.
315, April n, 1848, Section n, P. L. 536, and May 4, 1855, Section i, P. L.
430, as shown in Buckland's Estate, 239 Pa. 608; Moore's Estate, 50 Super.
Ct. 76.

A result of the Act of 1909 in connection with prior legislation is that
a married person having no issue whose estate amounts to $5,000 or less
cannot make any testamentary disposition of his or her estate. The Com-
missioners recommend in this section that the special allowance of 1909
shall be made only in cases of actual intestacy, and not where the surviv-
ing spouse elects to take against the will of the deceased spouse.

See Shoch's Est., 271 Pa. 158 afFg. 29 Dist. 1163.

Under the Intestate Act of June 7, 1917, P. L. 429, Section 2 (a), when
a husband dies intestate leaving a widow, but no issue, the share to which
the widow becomes entitled vests in her absolutely as an inheritance, and
on the death of the widow, intestate, passes to her next of kin.

In such case her next of kin are entitled to have $5,000 in value of the
husband's estate appraised and set apart for their benefit, although no
claim therefor was made by the widow in her lifetime. Nolan's Est., 68
P. L. J. 588, 21 Lack. 239, 2 Erie 211, 9 Lehigh 57.



*Amended by Act of July n, 1917 (P. L,, 403),



INTESTATE ACT SECTION 2 (a) 209

The $5,000 preference allowed to a widow under the Act of June 7,
1917, P. L. 429 (Intestate Act), is a vested interest in her at the death of
her husband, and this she cannot be deprived of except by her own act.
If the widow dies without having made any demand for it in her lifetime,
her next of kin are entitled to claim it after her death, and the claim may
be made for them by her personal representative. Desmond's Est., 28
Dist. 231, 36 Lane. 217, 8 Leh. 255.

"The controlling distinction between the law relating to the $500 ex-
emption and the $5,000 allowed to widows under the Act of 1917 is that
the $5,000 worth of property, real or personal, vests in the widow at the
death of her husband, and does not require any action on her part to se-
cure the same.

"The $500 exemption does not vest at the death of the husband, but only
when she has elected to exercise the right, and this her executor or ad-
ministrator cannot do for her after her death." Per Maxwell, P. J., in
Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255.

(Note. It would seem to be improper practice to join in one petition
a claim for an allowance of $5,000 and a claim for the exemption of $500.
Editor.)

A common law marriage with decedent duly proven to the satisfaction \ A*
of the court will enable the widow to successfully claim the allowance. ,
Wandall's Est., 29 Dist. 1132.

A mere irregularity in a divorce proceeding, rendering the decree voidable,
but not void, especially under attack by one not a party, will not deprive
the widow of her right to the allowance. McDonald's Est., 268 Pa. 486,
112 Atl. 98, reversing i Wash. 10, 49 Pa. C. C. 423.

A widow electing against her deceased husband's will is excluded from
the benefits of the special allowance of $5,000 under Section 2 (a) of the
Intestate Act of June 7, 1917, P. L. 429, as amended by the Act of July n,
1917, P. L. 755-

The plain intention of these statutes to exclude from the benefit of the
special allowance a spouse electing to take against the will of the de-
ceased spouse prevails against the less certain provision of Section 23 of
the Wills Act of June 7, 1917, P. L. 403.

Section 2 (a) of the Intestate Act and its amendment of July n, 1917,
are not in conflict with Art. Ill, Sec. 3, of the Constitution, as the title
of the Intestate Act is sufficiently germane to the body of the act. Col-
lom's Est., 47 Pa. C. C. 434, 28 Dist 503. See, also, Pfanen Schmidt's Est.,
35 Montg. 135; Langerwisch's Est., 47 Pa. C. C. 121, 28 Dist. 470, 8
Leh. 147, affirmed in 267 Pa. 319, no Atl. 165.

Where a man dies after the passage of the Act of July n, 1917, P. L.
755, which amended the Act of June 7, 1917, P. L. 429, leaving to survive
him a widow and collateral kin, and leaving a will by which he directed
his estate to be distributed in accordance with the intestate laws, and by
which he directed his executrix, the widow, to convert into money all his
real and personal property, and the widow elects to take under the will,
the court will refuse the widow's petition for the appointment of apprais-
ers to set apart real and personal property to the value of $5,000; but the
dismissal of the petition will be without prejudice to the right of the
14



210 INTESTATE ACT SECTION 2 (a)

widow to enforce her claim by taking credit therefor in the settlement of
her account as executrix, and urging it upon final distribution.

Such a case is not one of intestacy, and therefore the Acts of June
7, 1917, P. L. 429, and July n, 1917, P. L. 755, have no application, since
they relate solely to the descent and distribution of the real and personal
property of persons dying intestate.

Where, as here, the widow takes in money, no appraisement is necessary.
Carrell's Estate, 264 Pa. 140.

Under subdivision (a) as amended June II, 1917, P. L. 755, and sub-
divisions (&) and (d) of Section 2 of the Intestate Act of June 7, 1917,
P. L. 429, the collateral heirs cannot control in their own interest the elec-
tion of a spouse to take certain property for his or her special allowance
of $5,000.

"Nowhere in the act is there any restriction upon the freedom of its
beneficiary to choose the property of the estate he or she will take in sat-
isfaction of this portion of the inheritance it provides, but on the contrary,
the act expressly directs that the portion shall 'be chosen by him or her
from real or personal estate, or both.' In a case under the Widow's Ex-
emption Act of 1851, it was ruled that a creditor of an insolvent could not
control the widow's election to save himself from loss : Graves's Estate,
134 Pa. 377. A fortiori, the collateral heirs who are mere volunteers, can-
not control in their own interest the election of the favored heir under the
Intestate Act." Barnett, P. J., in Troutman's Est., 30 Dist. 708.

Where a widow makes her will, marries a second time, and dies leaving
in existence the will made prior to her second marriage, her surviving hus-
band is entitled under the Wills Act of June 7, 1917, P. L. 403, and the
Intestate Act of June 7, 1917, P. L. 429, as amended by the Act of July
II, 1917, P. L. 755, to the allowance of $5,000 provided by the Intestate Act.
By her remarriage her will, as to her second husband, was annulled, and
there was an actual intestacy as to him. Shestack's Estate, 267 Pa. 115,
no Atl. 1 66.

Intestacy may result not merely from the testator's failure to make a
will at all, or from his failure to dispose in his will of all his estate, but
also from his failure to make a legal and effectual disposition of either
his entire estate or a portion of it.

Where a charitable bequest of the residuary estate is void under the
Wills Act of June 7, 1917, Sec. 6, P. L. 403, because of the death of the
testator within thirty days after making the will, there is an actual, al-
though partial, intestacy within the meaning of the Intestate Act of June
7, 1917, Sec. 2 (a), P. L. 429, as amended by the Act of July u, 1917, P.
L. 755, which gives the surviving spouse of an intestate (there being no
issue) a special allowance of $5,000 out of the real or personal estate, in
addition to the one-half of the remaining estate. McNulty's Estate, 29
Dist. 709.

On a petition for the widow's claim for $5,000 under the Intestate Act
of July u, 1917, Section 2, P. L. 755, which she claimed from the real es-
tate left by the decedent, consisting of two properties, appraisers were
appointed and appraised the properties at $15,000. One of the next of kin
filed exceptions to this appraisement, and a bona fide written offer of
$20,000 was made for the properties, and it appeared that the property



INTESTATE ACT SECTION 2 (a) 211

next door, consisting of a property similar to one of these, had been sold
for $15,000. Under these facts the court refused to approve the appraise-
ment and ordered the appraisers to make a reappraisement. Brady's Es-
tate, 29 Dist. 24.

The constitutionality of the amending Act of July n, 1917, having been
attacked, the Supreme Court, in a per curiam opinion, affirming Langer-
wisch's Estate, supra, said :

"Diedrich Langerwisch died testate February 3, 1919, leaving a widow,
but no issue. She elected to take against his will, and claimed such interest
in his real and personal estate as would have passed to her if he had died
intestate. Her claim, disallowed by the court below, was for $5,000 out of
her husband's real or personal estate, in addition to the exemption al-
lowed her by law. It was disallowed, because Section 2, clause (o), of
the Act of June 7, 1917, P. L,. 429, as amended by the Act of July n, 1917,
P. L. 755, provides the 'clause as to said five thousand dollars in value
shall apply only to cases of actual intestacy of husband or wife.' On this
appeal the sole contention of the appellant is that the amending act is
unconstitutional, in that it violates Section 3 and Section 7, clause 16, of
Article III, of the Constitution. It is entitled, 'An act to amend Section
two clause (a) of the Intestate Act of one thousand nine hundred and
seventeen, approved June seventh, one thousand nine hundred and seven-
teen, by inserting in the proviso to said clause the words 'as to said five
thousand dollars in value.' This title contains but one subject, which is
'clearly expressed' and the act is a general law, not a local or special one,
'changing the law of descent or succession.' This is too plain for dis-
cussion." Langerwisch's Est., 267 Pa. 319; no Atl. 165.

The fact that the Orphans' Court Partition Act of 1917 (P. L. 338), in
Sections 15, 18 and 29 appears to concede to the widow a lesser estate in
lands of the decedent than that conferred by the Intestate Act of 1917
(P. L. 431), approved the same day, does not in any way affect the
quantum of the estate taken by the widow under the latter act. If there
were any conflict between the two acts, the Intestate act must govern as
to the interest taken, the Partition Act having to do merely with procedure,
and the enforcement of rights conferred by the Intestate Act. But the
alleged conflict is only apparent, and the references in the Partition Act
to the life estate of the widow are evidently intended to refer to estates
of persons dying prior to the Intestate Act of 1917.

"Under Section 2 (a) of the Intestate Act of 1917, P. L. 431, the widow
is apparently entitled in fee to an undivided one-half part or interest in
decedent's real estate; while Sections 15, 18 and 29 of the Orphans' Court
Partition Act of 1917, P. L. 337 (approved the same day as the last men-
tioned statute) appear to concede to the widow but a lesser share in said
lands, to wit, a life estate only; the respondent in its answer directing
our special attention to certain language appearing in said last named act,
to wit, in Section 15, the words 'where by existing laws the widow is en-
titled to a dower of one-third in the real estate and * * * where by ex-
isting laws the widow is entitled to a dower of one-half in the real es-
tate,' and in Section 18, the words 'should the widow of the decedent be



212 INTESTATE ACT SECTION 2 (a)

* * * entitled to a life estate in one-half or one-third of the real estate



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 22 of 71)