Raymond Moore Remick.

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

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under the intestate laws, or should such widow elect to take against the
will of the decedent and thereby be entitled to such a life estate' and in
Section 29, the words 'if there be a widow entitled to a life interest in
such real estate under the intestate laws, or should such widow elect to
take against the will and thereby be entitled to such life estate.' "

"As the decedent, William S. Dodd, whose estate is before us, died on
September 19, 1920, to wit, long after December 31, 1917, the date upon
which the Wills Act of 1917, P. L. 403, and the Intestate Act of 1917,
P. L. 429, both became operative, this estate, its administration and devolu-
tion, are therefore manifestly subject to the control of these two statutes.
We are, therefore, clearly of the opinion that the petitioner, as widow of
the decedent, upon her electing to take against her husband's will became,
under Section 23 of the said Wills Act of 1917, P. L. 403, and under Sec-
tion 2 (a) of the said Intestate Act of 1917, P. L. 429, entitled to and in-
vested with, an undivided one-half part, share or interest in fee simple,
in said decedent's real estate; and that the cited portions of the said
Orphans' Court Partition Act of 1917, P. L. 337 (15, 18 and 29), do not
and are not designed to diminish such fee simple share, part or interest
so prescribed for the widow in and by the said Wills Act and Intestate
Act." * * * "It is the intestate laws of the commonwealth which de-
termine all matters pertaining to the descent and inheritance of estates of
decedents ; fixing the character, kind, quantity and amount of the inter-
ests of shares in decedents' real and personal property which shall pass to
and vest in surviving spouses and kinsmen. The Partition Acts merely
provide the method for enforcing the rights so conferred by the Intestate
Acts. Hence, it follows that on general principles, were there indeed a
clash or conflict between the provisions of the Intestate Act of 1917, P. L.
429, and of the Orphans' Court Partition Act of 1917, P. L. 337, on a mat-
ter of quantity, size, amount of shares or interests of a decedent's estate to
descend or vest, the latter statute (merely prescribing procedure) would,
of necessity yield to the former statute as to matters so lying exclusively
within the scope and province of the said Intestate Act.

"However, the respondent, in its answer, has not directed our attention
to or shown that there really exists any clash or conflict between the two
statutes under consideration. By its express terms, the Intestate Act of
1917, P. L. 429, becoming operative and effective on December 31, 1917,
is made to apply to estates, real and personal of all persons dying intestate
on or after the said day so designated ; expressly providing that as to the
estates, real and personal, of persons dying before the day designated, the
existing laws should remain in full force and effect. Under Section i of
the Act of April 8, 1833, P. L. 316, which applies to and controls the
devolution of estates of intestates dying before December 31, 1917, a
surviving widow was entitled to certain interests in her husband's real
estate for life only, to wit, so-called statutory dower, i. e., a life estate
in a third or a half part of such lands, depending on whether the decedent
had left any children or issue. The Intestate Act of 1917, P. L. 429, gives
the widow of an intestate dying on or after December 31, 1917, not statu-
tory dower as under the old law, but certain interests in fee simple in the
decedent's real estate, to wit, an undivided one-third part thereof or an



INTESTATE ACT SECTION 2 (a), (&) 213

undivided half part thereof or more, depending on whether or not the
decedent leaves children or issue, and if so, the number thereof. The
Orphans' Court Partition Act had to be drafted by the lawmakers to meet
the circumstances and requirements of the estates of all intestates, to wit,
those dying before, as well as those dying after December 31, 1917; for
such act was to apply to estates of decedents irrespective of the dates of
their respective deaths. Now, as to widows of intestates dying after De-
cember 31, 1917, no special mention of the shares of such widows therein
was in such act necessary ; for, thereunder surviving spouses taking shares
in fee, such shares are of precisely the same character and quality as,
and, therefore, fall in the same category with, the other shares and inter-
ests vesting in the decedent's descendants or collateral kinsmen. The said
act, however, had to make and preserve special provision for the statutory
dower of widows of husbands dying prior to December 31, 1917, which
circumstance accounts for and explains the use of the pointed out lan-
guage appearing in Sections 15, 18 and 29 of the said act. The purpose
and necessity for such provisions and language is manifest, to wit, being
designed and required to provide for the life interests of widows in es-
tates of intestates dying before December 31, 1917, and in estates of tes-
tates dying before said date, where the widows elect to take against the
wills of their respective husbands. Accordingly we reach the conclusion
that there exists no clash nor conflict between the provisions of the Or-
phans' Court Act of 1917, P. L. 337, and the Intestate Act of 1917, P. L.
429; at least as to any matter to which the petitioner has directed our atten-
tion. It is well to observe, moreover, in passing that did indeed such
conflict exist between the provisions of the two statutes under consid-
eration, the provisions of the Orphans' Court Partition Act of 1917, P.
L. 337, aside from its being a mere possessory action, would, for another
important reason, be legally forced to yield to the pertinent provisions of
the Intestate Act of 1917, P. L. 429, as to all matters within the scope of
the last mentioned statute; for, the latter act, although approved the same
day as the former act became operative long after the said Orphans' Court
Partition Act had become law ; so that the Intestate Act thus later be-
coming operative, would automatically and of necessity supersede such
provisions of the Partition Act, if any, in conflict with the provisions of
the said Intestate Act." Dodd's Estate, i Wash. 236.

297. APPRAISEMENT AND APPRAISERS.

(&) The appraisement and setting apart of the said five thou-
sand dollars in value of property shall be made by two appraisers,
who shall be appointed by the orphans' court having jurisdiction
of the accounts of the personal representatives of such intestate,
and shall be sworn or affirmed to appraise the property which the
surviving spouse shall choose under the provisions of this act.
Each of such appraisers shall receive, as compensation for each
day or fraction thereof necessarily employed in the performance



214 INTESTATE ACT SECTION 2 (&)

of their duties, the sum of two dollars and fifty cents, and such
additional amount as may be allowed by said court.

NOTE. This is founded on the Act of April i, 1909, P. L. 87, 5 Purd.
6476, as amended by the Act of July 21, 1913, P. L. 875, 5 Purd. 6478, fur-
ther amended so as to provide for the appointment by the orphans' court
of two appraisers, for the swearing or affirming of such appraisers,' and
for their compensation.

The Commissioners have concluded that the appraisement of the prop-
erty chosen by the surviving spouse to be awarded under this act should
be made by appraisers appointed by the court rather than by the ap-
praisers of the "other personal estate," as is now the law. In many cases,
where real estate is selected, the regular appraisers are not necessarily
qualified to value it, and as the rights of the heirs are involved, it seems
best that the appraisers should be formally appointed.

In this and other clauses of the act relating to this special allowance,
the Commissioners have avoided any reference to the procedure under
prior acts of assembly relating to the widow's exemption, which introduced
a needless complication in the Act of April I, 1909.

See Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255.

The orphans' court possesses no jurisdictional authority to appoint ap-
praisers to appraise and set aside estate property claimed as and for a $5,-
ooo allotment for the surviving spouse of an intestate dying before Decem-
ber 31, 1917; the power of the said court being limited and confined to
appointing substitute appraisers to take the place of estate appraisers ap-
pointed by the personal representatives of the estate but who are unable
to act. Hilton's Est., i Wash. 125.

Under subdivision (a) as amended June n, 1917, P. L. 755, and sub-
divisions (b) 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.

No appeal is given from the report of the appraisers fixing the value
of the property from which a spouse elects to take his or her special al-
lowance, and in the absence of fraud or collusion or such clear under-
valuation of the property as may suggest fraud or collusion, the valuation
fixed by the appraisers will not be interfered with.

The mere fact that one of two appraisers was a second cousin of the
widow is not ground for setting the appraisement aside.

"No appeal is given from the report of the appraisers. They are the
tribunal created by the act for the purpose of appraising the property the
spouse elects to take under this section, and in the absence of fraud or
collusion, or of such clear undervaluation of the property as may suggest
fraud or collusion, their valuation should not be interfered with." * * *
"The fifth exception is likewise without merit. One of the two apprais-
ers was a second cousin of the widow. But in Vandevort's Appeal, 43
Pa. 462, two of the three appraisers were brothers-in-law of the widow,



INTESTATE ACT SECTION 2 (&), (c), (d) 215

and it was held by the Supreme Court that 'the mere fact of the relation-
ship of two of three appraisers to the decedent or the widow is not
enough to avoid their proceedings." Barnett, P. J., in Troutman's Est.,
30 Dist. 708.

298. CONFIRMATION OF APPRAISEMENT.

(c) Upon due proof of compliance with such requirements as
to notice, by advertisement or otherwise, as may be prescribed by
the orphans' court by general rule or otherwise, such court may
confirm such appraisement and set apart such personal or real es-
tate, or both, to the surviving spouse, subject to claims of creditors
of the decedent and to the lien of debts of the decedent.

NOTE. This is a new clause, introduced in order to give the orphans'
court express power to set apart property claimed by the surviving spouse,
in advance of the distribution of the estate.

299. ALLOWANCE OUT OF REAL ESTATE VALUED

AT MORE THAN $5,000.

(d) Whenever the surviving spouse of any intestate shall claim
the said five thousand dollars in value, or any part thereof, under
the provisions of this act, out of real estate left by said intestate,
and the real estate appraised cannot be divided so as to set apart
the amount so claimed in value without prejudice to or spoiling
the whole or any parcel of said real estate, and the appraisers shall
appraise and value the same at any sum exceeding the amount so
claimed, it shall be lawful for the orphans' court, to which such
application shall be made, to confirm such appraisement, and to set
apart for the use of the surviving spouse such real estate, condi-
tioned, however, that the said surviving spouse shall pay the
amount of the valuation or appraisement in excess of the amount
so claimed within one year from the date of confirmation of such
valuation. If the said surviving spouse shall refuse to take the
real estate at such appraisement, or shall fail to make payment as
above provided, the court, on application of any person interested,
shall direct the executor or administrator to sell the same, and the
procedure in such case shall be the same as is provided by law in
cases of sales of real estate for the payment of debts of a decedent.

NOTE. This is Section i of the Act of July 21, 1913, P. L. 872, 5 Purd.
6478, altered in the following particulars:

The language is changed so as to apply to cases where the real estate in
question consists of more than one parcel and no single parcel is worth
five thousand dollars, but all of them are worth more than that amount.



216 INTESTATE ACT SECTION 2 (rf), (), (/)

The language is also changed so as to cover cases where part of the
five thousand dollars is taken in personal property and the amount claimed
out of real estate is therefore less than five thousand dollars. The same
change is made in subsequent clauses.

The words, "or fails to make payment as above provided," are inserted
in the last sentence, also changed so as to provide that the sale shall be
made by the executor or administrator, and so as to prescribe the pro-
cedure.

Under subdivision (a) as amended June n, 1917, P. L. 755, and sub-
divisions (ft) and (rf) of Section 2 of the Intestate Act of June 7, 1917,
P. L. 429, the collateral heirs cannot control in their own interest the
election of a spouse to take certain property for his or her special allow-
ance of $5,000.

"No appeal is given from the report of the appraisers. They are the
tribunal created by the act for the purpose of appraising the property the
spouse elects to take under this section, and in the absence of fraud or
collusion, or of such clear undervaluation of the property as may sug-
gest fraud or collusion, their valuation should not be interfered with."
********

"The fifth exception is likewise without merit. One of the two ap-
praisers was a second cousin of the widow. But in Vandevort's Appeal,
43 Pa. 462, two of the three appraisers were brothers-in-law of the widow,
and it was held by the Supreme Court that 'the mere fact of the relation-
ship of two out of three appraisers to the decedent or the widow is not
enough to avoid their proceedings." Barnett, P. J., in Troutman's Est,
30 Dist. 708.

300. TITLE TO SUCH REAL ESTATE.

(?) The real estate, if taken by the surviving spouse as afore-
said, shall vest in him or her and his or her heirs or assigns upon
his or her paying the surplus over and above the sum of five thou-
sand dollars or such part thereof as may be claimed out of the real
estate to the parties entitled thereto. Where the real estate is sold
as provided in clause (d) of this section, the sum of five thousand
dollars or such part thereof as may be claimed out of the real
estate shall be paid out of the purchase money to the surviving
spouse, and the balance, after payment of costs and expenses, shall
be distributed to the heirs, or other persons legally entitled thereto.

NOTE. This is Section 2 of the Act of July 21, 1913, P. L. 872, 5 Purd.
6478, omitting the words, "if the real estate should not be so taken at the
appraisement," and substituting a reference to the preceding clause.

301. RENTS, INCOME, INTEREST AND DIVIDENDS

OF PROPERTY SET APART.

(/) In all cases where the appraisement of property, real or per-
sonal or both, is confirmed and the property set apart to the sur-



INTESTATE ACT SECTION 2 (/), (<?) 217

viving spouse under the provisions of this section, said surviving
spouse shall be entitled to receive for his or her own use the net
rents, income, interest and dividends thereof from the date of the
death of such intestate. Where the property set apart shall consist
of real estate appraised at a sum in excess of five thousand dollars
or such part thereof as may be claimed out of the real estate, and
the surviving spouse shall fail to pay the excess over the amount
so claimed as provided in clause (d) of this section, and the prop-
erty shall thereupon be sold, there shall be deducted from the sum
to be paid to said surviving spouse out of the proceeds of such
sale a proportionate part of the rents and income of such real
estate received by such surviving spouse.

NOTE. This is a new clause, introduced to include the right to the in-
come of the property set apart to the surviving spouse from the date of
the death of the intestate.

In the case of intestacy without issue, the surviving spouse is not en-
titled to interest on the special allowance of $5,000 under Section 2 (/)
of the Intestate Act of June 7, 1917, P. L,. 429, in addition to the income
of the property set aside or awarded to him. Fretz's Est., 28 Dist. 645.

302. REAL ESTATE IN ANOTHER COUNTY.

(g) Whenever the surviving spouse of any intestate shall claim
the said five thousand dollars in value, or any part thereof, under
the provisions of this section, out of real estate left by said intes-
tate and lying in any county of this state other than the county
wherein said intestate shall be domiciled at the time of his or her
death, and the orphans' court having jurisdiction of the accounts
of the personal representatives of said intestate shall be satisfied,
upon petition filed, of the propriety of allowing such claim the
court may make a decree authorizing such surviving spouse to file
his or her petition in the orphans' court of the county wherein
such real estate may lie, or, in a case where the real estate is di-
vided by a county line, in the county where the mansion house may
be situated, or, if there be no mansion house, in the county where
the principal improvements may be, or, if there be no improve-
ments, in either county, praying for the appointment of two ap-
praisers.

Upon the filing of such petition, duly verified, the latter court
shall appoint such appraisers, who shall be duly sworn or affirmed,
and shall appraise said real estate, and shall be compensated as
provided in clause (&) of this section; and proceedings shall there-



218 INTESTATE ACT SECTION 2 (g), (h)

upon be had in said court and subject to its supervision and con-
trol, in the same manner and with the same effect as is provided
in clauses (c), (d), (e) and (/) of this section. In every such
case a certified copy of the decree confirming such appraisement,
or of such decree of sale and the confirmation thereof, as the case
may be, shall forthwith be filed with the clerk of the orphans'
court having jurisdiction of the accounts of the personal represen-
tatives of said intestate.

The court having jurisdiction of the accounts shall in all cases
have exclusive jurisdiction of the distribution of the surplus paid
by such surviving spouse, or of the proceeds of such sale, after the
payment of costs and expenses, as the case may be.

NOTE. This is a new clause, introduced to cover the case of lands lying
in other counties. It is modeled to some extent upon Section 32 of the
Act of March 29, 1832, P. L. 190, I Purd. 1118, relating to sales for the
payment of debts.

It seems clear that the distribution of the estate, and the setting apart
of the reaLestate chosen by the surviving spouse should be made under
the control of the orphans' court of the county having jurisdiction of the
accounts of the administrator or executor, and it seems equally clear that
some record should be made of the decree in the county where the real
estate is situated, and that the sale should be under the direction of the
orphans' court of that county.

303. CERTIFIED COPY OF DECREE TO BE RE-
CORDED AND REGISTERED.

(/z) In all cases where a decree shall be entered by any orphans'
court confirming an appraisement of real estate and setting apart
the same for the use of the surviving spouse, a certified copy of
such decree shall be recorded in the office of the recorder of deeds
of each county where such real estate shall lie, in the deed book,
and shall be indexed by the recorder in the grantors' index under
the name of the decedent, and in the grantees' index under the
name of the surviving spouse, and shall be registered in the survey
bureau, or with the proper authorities empowered to keep a reg-
ister of real estate, if any there be, in said county ; and the charges
for recording and registering shall be the same as are provided by
law for similar services, and shall be paid by said surviving spouse.

NOTE. This is a new clause, introduced for the sake of convenience in
connection with the title to real estate.



INTESTATE ACT SECTION 3 219

304. WIDOW'S SHARE IN LIEU OF DOWER; SHARE
IN LANDS ALIENED BY HUSBAND AND IN
ESTATE IN REMAINDER.

SECTION 3. The shares of the estate directed by this act to be
allotted to the widow shall be in lieu and full satisfaction of her
dower at common law so far as relates to lands of which the hus-
band died seized; and her share in lands aliened by the husband
in his lifetime without her joining in the conveyance shall be the
same as her share in lands of which the husband died seized. The
widow shall be entitled to the same share in an estate in remainder
vested in interest in the husband during his lifetime, although the
particular estate shall not terminate before the death of the hus-
band.

NOTE. This is Section 15 of the Act of April 8, 1833, P. L. 315, 2 Purd.
2002, altered so as to make the widow's share in lands aliened by the
husband without her joinder the same as her share in lands of which he
dies seized. The last sentence is added to correspond with the last sen-
tence of Section 4 of this act.

Section 15 of the Act of 1833, was derived from Section 13 of the Act
of April 19, 1794, 3 Sm. L,. 143-

Where it was claimed by counsel for the widow that her right in the
coal and mining rights, conveyed during coverture without her joinder
in the deed of conveyance, is that prescribed by Section 3 of the Intestate
Act of June 7, 1917, P. L. 429, to wit, not her share as prescribed by the
common law, but, instead, a share 'the same as her share in lands of which
her husband died seized' ; this contention being followed up with the claim
that because the decedent died since the Intestate Act of 1917 became
operative, the widow is entitled to a one-third share of aliened lands in
fee simple, and not merely a life interest in one-third of said real estate
under common law or prescribed by the Intestate Act of April 8, 1833,
P. L. 315. Hughes, P. J., held, inter alia:

"As we are about to hold that this court is without jurisdiction of the
subject matter involved, it will be unnecessary for us to pass upon these
contentions of the petitioner's counsel. If such contentions are to be sup-
ported and upheld by the court of competent jurisdiction called to pass
upon the said contentions, it will be by holding that the provisions of
Section 3 of the Intestate Act of June 7, 1917, P. L. 429, are (as to lands
aliened by a decedent in his lifetime) retroactive in effect, and, accord-
ingly, applicable to such transfers of lands consummated before as well
as after the said statute became operative. There is very grave doubt if
such conclusions could be reached by such court in view of the doctrine
supported by the Pennsylvania decisions, which uniformly held that vested
rights, such as those of the respondents in the case at bar in the aliened
coal and mining rights, are not to be taken away, impaired or disturbed by
statutory enactments: Taylor v. Mitchell, 57 Pa. 209 (1868); Barnesboro



220 INTESTATE ACT SECTIONS 3-4

Borough v. Speice, 40 Pa. Superior Ct. 609 (1909). Furthermore, it may
not be improper for us to suggest that the constitutionality of this pro-
vision of the said Act of June 7, 1917, P. L. 429, upon which the peti-
tioner rests her claims, may be seriously questioned. The title of the
statute indicates that it is 'An act relating to the descent and distribution
of the real and personal property of persons dying intestate,' etc. The
provisions of Section 3 under consideration concern lands which are aliened
by the husband in his lifetime, and which, accordingly, at his death, do
not form any part of his real or personal property or estate. Hence, it
might be argued with effect that the failure of the title of the statute to
reveal its intendment to govern real estate other than that of which de-
cedents die seized, renders the provisions as to such aliened lands unconsti-
tutional and inoperative.

"We leave these legal questions to be determined by a court of competent
jurisdiction, whose duty it will be to decide and adjudicate the share to
which the petitioner is entitled in the said aliened lands. But whether
such interest in such aliened lands shall be determined by the said court
to be the share fixed for her by the common law or a substitute for the



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 23 of 71)