Raymond Moore Remick.

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

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Houghton (1915) 2 Ch. 173; 15 Columbia Law Review 260, 275; but it
appears shocking to morality that an heir should be permitted to profit
by his crime.

The Commissioners in their draft of the Wills Act herewith submitted
(see 244 supra) have embodied a similar provision applicable to the case
of a devisee or legatee, in order that the same rule may apply. The Com-
missioners are of opinion however that the guilt of the party charged with
the crime should be determined by his conviction in the proper forum.

348. ESCHEAT.

SECTION 24. In default of all such known heirs or kindred, or
surviving spouse, competent to take as aforesaid, the real and
personal estate of such intestate shall go to and be vested in the
commonwealth by escheat.

NOTE. This is Section 12 of the Act of 1833, 2 Purd. 2002, with the
addition of the words, "competent to take."

The section was introduced in the Act of 1833 for the purpose of com-
pleting the system, and was taken from the Act of September 29, 1787,
2 Sm. I*. 425.

349. ACT NOT TO APPLY TO PERSONAL ESTATE

OF INTESTATE DYING DOMICILED OUT-
SIDE THE COMMONWEALTH.

SECTION 25. Nothing in this act contained, relative to a dis-
tribution of personal estate among kindred, shall be construed to
extend to the personal estate of an intestate whose domicile, at
the time of his death, was out of this commonwealth.

NOTE. This is Section 20 of the Act of 1833, 2 Purd. 2004, which was
new in the Act of 1833.

In the distribution of assets of foreign intestates, the Orphans' Court of
Allegheny County will require that the domicile of the decedent be con-
clusively established before a decree will be made. If the distributees are
domiciled abroad, their rights to share in the estate must be clear as well
as how said shares are to be disbursed either by consular agencies or
otherwise.

MILLER, P. J., held:

"We now indicate, as suggestions, certain general principles, the same
to be lodged with the clerk for the benefit of and aid to accountants and
counsel.

"These are as follows:

"First, that the domicile of the decedent must be ascertained and found
as a fact before the question of distribution can be considered; to find
this fact, residence and intent must concur and must be made to appear
in each case.



248 INTESTATE ACT SECTIONS 25-26-27

"Second, that the grant of letters by the register is not conclusive
evidence of domicile.

"Third, that domicile having been established, distribution will be made
in accordance with the laws thereof ; if domiciled in Pennsylvania, then
according to the laws of this state; if domiciled abroad:

"(a) To the parties entitled, either as personal representatives or
directly upon adjudications in the foreign domicile so showing, the same
to be fully authenticated, including proof of the law governing the same.

"(b) That when distribution cannot be made to the parties entitled
thereto under the law of the foreign domicile as set forth in paragraph
(a) above, then distribution may be made to the duly accredited consular
agent of the foreign domicile, upon proof of credentials filed; the bal-
ance so awarded to him on his acceptance as consular representative to be
held and transmitted, under general treaties, conventions, consular rights
or international law, as duly recognized and as existing between the
United States and the country of the decedent's domicile.

"Fourth, that powers of attorney by claimants, whether as personal
representatives or as direct heirs, in the decedent's foreign domicile, cannot
be recognized unless they are accompanied by proof of a foreign adjudi-
cation in the domicile of the decedent of the laws governing the same
and of his right thereto.

"Fifth, that no suggestion here covers the question argued to a great
extent of the right of consuls or consular agents to be granted letters
of administration, since no such question actually arises in any of the
class of estates submitted.

"Sixth, that in the absence of proof of foreign domicile or of the rights
of parties to take, or failure to ascertain who they are, with failure to
present the adjudication and proofs of the laws herein set forth, and on
the failure or refusal of consular representatives to accept residues of
balances for transmission, where no other disposition is made, distribution
must be suspended pending further proceedings." Estates of Foreign
Intestates, 68 P. I,. J. i.

350. SHORT TITLE.

SECTION 26. This act shall be known and may be cited as the
Intestate Act of 1917.

351. WHEN ACT SHALL GO INTO OPERATION.

SECTION 27. This act shall take effect on the thirty-first day of
December, 1917, and shall apply to the estates, real and per-
sonal, of all persons dying intestate on or after said day. As to
the estates, real and personal, of all persons dying before that
day, the existing laws shall remain in full force and effect.

The orphans' court possesses no jurisdictional authority to appoint
appraisers to appraise and set aside estate property claimed as and for a
$5,000.00 allotment for the surviving spouse of an intestate dying before



INTESTATE ACT SECTONS 27-28 249

December 31, 1917; the power of the said Court being limited and con-
fined to appointing substitute appraisers to take the place of estate ap-
praisers appointed by the personal representative of the estate but who are
unable to act. Hilton's Estate, i Wash. 125.

352. REPEALER.

SECTION 28. This Act of Assembly is intended as an entire
and complete system for the descent and distribution of the
estates, real and personal, of persons dying intestate. The follow-
ing acts and parts of acts of assembly are hereby repealed as
respectively indicated, but so far only as relates to the estates,
real and personal, of any person or persons dying intestate on or
after the thirty-first day of December, 1917. The repeal of the
first section of an act shall not repeal the enacting clause.

Sections 3 to 13 inclusive and 18 of an act entitled "An Act
directing the descent of intestates' real estates, and distribution
of their personal estates, and for other purposes therein men-
tioned," passed April 19, 1794, 3 Sm. L. 143, absolutely.

Sections 5, 6 and 7 of an act entitled "An Act supplementary
to the act, entitled 'An Act directing the descent of intestates'
real estates, and distribution of their personal estates, and for
other purposes therein mentioned,' " passed April 4, 1797, 3 Sm.
L. 296, absolutely.

An act entitled "An Act for the settlement of the estates of
intestates, where some of the heirs reside out of the state," ap-
proved March 13, 1815, P. L. 173.

An act entitled "An Act relative to escheated estates," ap-
proved January 21, 1819, P. L. 25, absolutely.

An act entitled "A supplement to an act entitled 'An Act
relative to escheated estates,' passed the twenty-first of January,
eighteen hundred and nineteen," approved April 6, 1833, P. L.
207, absolutely.

An act entitled "An Act relating to the descent and distribution
of the estates of intestates," approved April 8, 1833, P. L. 315,
absolutely.

Section 9 of an act entitled, "A supplement to an act, entitled
'An Act relative to the LeRaysville Phalanx,' passed March,
Anno Domini one thousand eight hundred and forty-seven, and
relative to obligors and obligees, to secure the right of married
women, in relation to defalcation, and to extend the boundaries
of the borough of Ligonier," approved April n, 1848, P. L.
536, in so far as it relates to the distribution of the personal es-



250 INTESTATE ACT SECTION 28

tate of a deceased married woman, and section 10 of said act,
absolutely.

Section 2 of an act entitled "An Act to amend certain defects
of the law for the more just and safe transmission and secure
enjoyment of real and personal estate," approved April 27, 1855,
P. L. 368, absolutely, and section 3 of said act in so far -as it
relates to inheritance.

Section 5 and the proviso to Section 7 of an act entitled "An
Act relating to certain duties and rights of husband and wife,
and parents and children," approved May 4, 1855, P. L. 43
absolutely.

An act entitled "An Act to legitimate children born out of law-
ful wedlock," approved May 14, 1857, P. L. 507, in so far as it
relates to inheritance.

An act entitled "An Act permitting illegitimates to inherit from
each other in certain cases," approved June 5, 1883, P. L. 88,
absolutely.

An act entitled "An Act to facilitate the proof and record of
the title of real estate vested in the heirs of certain intestates,"
approved June 20, 1883, P. L. 131, absolutely.

An act entitled "An Act providing for the manner in which
estates of intestates shall be distributed, where the distributees
stand in the same degree of consanguinity to the intestate,"
approved June 30, 1885, P. L. 251, absolutely.

An act entitled "An Act relating to the mode of inheriting
from, through, or by, a child or children adopted according to
law, and being a supplement to an act, entitled 'An Act relating
to certain duties of husband and wife, and parents and children,'
approved the fourth day of May, one thousand eight hundred
and fifty-five," approved April 13, 1887, P- L. 53, absolutely.

The proviso to Section I of an act entitled "An Act amending
section seventh of an act, entitled 'An act relating to certain
duties and rights of husband and wife, and parents and children,'
approved the fourth day of May, Anno Domini one thousand
eight hundred and fifty-five, providing that married men or
women, in case of drunkenness or profligacy of husbands or
wives, may consent to the adoption of their children," approved
May 19, 1887, P. L. 125, absolutely.

An act entitled "An Act relating to estates of intestates, pro-
viding that children and descendants of deceased grandparents
shall represent such deceased grandparents whenever grand-



INTESTATE ACT SECTION 28 251

parents are entitled as next of kin to intestates," approved May
25, 1887, P. L. 261, absolutely.

The first proviso of Section I of an act entitled "An Act
relating to the adoption of any person as an heir," approved
May 9, 1889, P. L. 168, absolutely.

An act entitled "An Act to amend the third section of the act,
entitled 'An Act to amend certain defects of the law for the
more just and safe transmission and secure enjoyment of real
and personal estate,' approved the twenty-seventh day of April,
Anno Domini one thousand eight hundred and fifty-five, provid-
ing that illegitimate children shall take their mother's name, and
she and her mother, and they and their issue, shall be capable to
take or inherit from each other," approved June 14, 1897, P. L.
142, in so far as it relates to inheritance.

An act entitled "An Act to allow legitimate and illegitimate
children, born from the same mother, dying without children, to
inherit real and personal property from each other, in exclusion
to the grandmother of the illegitimate child or children, as though
they had been born in lawful wedlock," approved June 10, 1901,
P. L. 551, absolutely.

Sections 2, 3 and 4 of an act entitled "An Act to regulate and
define the legal relations of an illegitimate child, or children, its
or their heirs, with each other and the mother and her heirs,"
approved July 10, 1901, P. L. 639, absolutely.

An act entitled "An Act to amend an act, entitled 'An Act to
regulate and define the legal relations of an illegitimate child or
children, its or their heirs with each other and the mother and
her heirs, approved the tenth day of July, Anno Domini one
thousand nine hundred and one; and applying and extending
it to all cases, now pending, where the estate of such illegitimate
or mother has not been actually paid to and received by collateral
heirs or the Commonwealth," approved March 26, 1903, P. L.
70, absolutely.

The proviso to Section i of an act entitled "An Act to amend
an act, entitled 'An act amending section seventh of an act,
entitled "An Act relating to certain duties and rights of husband
and wife and parents and children," approved the fourth day of
May, Anno Domini one thousand eight hundred and fifty-five,
providing that married men or women, in case of drunkenness or
profligacy of husbands or wives, may consent to the adoption of
their children,' " approved April 22, 1905, P. L. 297, absolutely.



252 INTESTATE ACT SECTION 28

An act entitled "An Act to amend section one of an act, en-
titled 'An Act relating to the descent and distribution of the
estates of intestates,' passed and approved April eighth, one thou-
sand eight hundred and thirty-three, defining and declaring the
interest that shall descend to and vest in the surviving husband
or wife of such intestate," approved April I, 1909, P. L. 87,
absolutely. 1

Sections 3 and 4 of an act entitled "An Act relating to the
adoption of adult persons as heirs," approved June I, 1911, P. L.
539, in so far as they relate to inheritance and devolution under
the intestate laws.

An act entitled/'A supplement to an act, entitled 'An Act to
amend section one of an act, entitled "An Act relating to the
descent and distribution of the estates of intestates," passed and
approved April eighth, one thousand eight hundred and thirty-
three, defining and declaring the interest that shall descend to
and vest in the surviving husband or wife of such intestate/ ap-
proved April first, Anno Domini one thousand nine hundred and
nine," approved July 21, 1913, P. L. 872, absolutely.

An act entitled "An Act amending article two of section one
of an act, entitled 'An Act relating to the descent and distribution
of the estates of intestates,' approved the eighth day of April, one
thousand eight hundred thirty-three, as amended, by further
regulating the appointment and number of appraisers," approved
July 21, 1913, P. L. 875, absolutely. 1

An act entitled "An Act to amend an act, approved the fourth
day of May, one thousand eight hundred and fifty-five, entitled
'An Act relating to certain duties and rights of husband and wife
and parents and children,' " approved May 3, 1915, P. L. 234,
absolutely.

An act entitled "An Act amending section one of an act, en-
titled 'An Act amending section seven of an act, entitled "An
act relating to certain duties and rights of husband and wife, and
parents and children," approved the fourth day of May, Anno
Domini one thousand eight hundred and fifty -five; providing
that married men or women, in case of drunkenness or profligacy
of husbands or wives, may consent to the adoption of their
children,' approved the nineteenth day of May, Anno Domini
one thousand eight hundred and eighty-seven," approved May 28,
1915, P. L. 580, in so far as it relates to inheritance and devolu-
tion under the intestate laws.



INTESTATE ACT SECTION 28 253

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, so far as relates to the estates, real and per-
sonal, of any person or persons dying intestate on or after the
thirty-first day of December, 1917.

1 See Hilton's Est. i Wash. 125, wherein the Court held:

"In Section 28, this language appears:

" 'The following acts and parts of acts of assembly are hereby repealed
as respectively indicated, but so far only as relate to the estates, real
and personal, of any person or persons dying intestate on or after the 3ist
of December, 1917.'

"Later on in said Section 28, the Acts of April i, 1909, P. L. 87 and
July 21, 1913, P. L. 875, are cited for repeal under the said conditions
specified earlier in said section. It is thus seen that by its very terms
the Intestate Act of 1917, P. L. 429, is to apply to estates of those only
who died on or after December 31, 1917; and that, conversely, the said
statute is not to apply to the estates of those who died prior to that
date (in which last category falls the estate of Wallace J. Hilton under
consideration). As to the Hilton Estate, therefore, the said Intestate
Act of 1917, P. L,. 429, expressly says that the laws as they existed prior
to December 31, 1917, shall remain and apply in full force and effect.

"We have hereinbefore reached the conclusion that the Wallace J.
Hilton Estate is to be controlled and governed, .so far as the $5,000.00
allotment is concerned, by the said Act of July 21, 1913, P. L. 875, which,
as to estates of all persons dying prior to December 31, 1917, remains
expressly unrepealed by the Intestate Act of 1917, P. L. 429. Certainly,
had the Legislature intended that the procedure relative to spouses'
allotments prescribed by the Intestate Act of 1917, P. L. 429, should
apply to and govern as well, estates of persons dying before December 31,
1917, they would have had the language of the Act so state and they
would not have employed the quoted language of Sections 27 and 28."



THE FIDUCIARIES ACT

of
June 6, 1917, (P. L. 447)

PRELIMINARY NOTE BY COMMISSION.

In this voluminous Act, the Commissioners have endeavored
to arrange in one connected and systematic statute the law re-
lating to the administration and distribution of the estates of
decedents and of minors, and of trust estates, and particularly
the jurisdiction, powers and procedure of the orphans' court rela-
tive to fiduciaries.

The intricacy of the subject is greater than anyone will readily
believe who has not taken the trouble to examine it himself ; and
the labors of the Commissioners have been principally directed
to the revision and consolidation of existing statutes and the
repeal of those that have become obsolete, rather than to the
introduction of novel legislation. The changes recommended are
for the most part designed to simplify and harmonize the pro-
cedure, which, in many instances, has become complicated by
the passage of numerous statutes relating to specific matters of
detail.

In Section 6, the Commissioners have revised the law relative
to the estates of persons presumed to be dead on account of
absence for seven years or more from their last domicile, a sub-
ject that has become very complicated by the numerous statutes
which have been adopted in the past thirty years, and stands in-
great need of revision.

In Section II, a method of compelling the filing of an inventory
has been provided, and the fees of appraisers of decedents' es-
tates have been regulated.

In Section 12, the widow's and children's exemption has been
increased from $300 to $500, and the whole procedure regulated.

In Section 14, the rents of real estate accruing after the death
of the owner have been made assets for the payment of his
debts, when the personal estate is insufficient, and the procedure
has been regulated.

254



FIDUCIARIES ACT 255

In Section 15, the lien of decedents' debts has been shortened
from two years to one year unless continued by proper pro-
ceedings, and the law as to judgments against decedents and
their representatives has been revised.

Section 16 contains the statute law relative to sales and mort-
gages of real estate for the payment of debts. Very little change
is made, but the phraseology has been altered and the pro-
visions of the law rearranged in more symmetrical order. Sales
for payment of debts are now governed by several Acts of As-
sembly, some of the provisions of which are obsolete or inappro-
priate to present conditions. The procedure is regulated and the
law as to confirmation of sales and the discharge of liens is par-
ticularly provided for.

In Section 18, the procedure in cases of contracts of decedents
for the sale or purchase of real estate is more clearly regulated.

In Section 21, the law on the subject of interest on legacies is
defined, particularly in reference to interest on legacies bequeathed
in trust.

In Section 22, the Commissioners recommend a general rule
upon the subject or apportionment of all periodical payments
directed by will.

In Section 23, a change is recommended where there is a bequest
of personal property or the proceeds of real estate for life and
the life tenant does not enter security, in consequence of which a
trustee is appointed. Such trustee, according to the revised act,
undertakes only the usual responsibility of a trustee and is not to
be considered as an insurer of the fund.

In Section 24, the jurisdiction of the orphans' court for the
collection or enforcement of all legacies is made exclusive.

In Section 31, the power of testamentary trustees and guardians
to lease real estate is extended and regulated.

In Section 32, elections by fiduciaries in behalf of their wards
or cestuis que trust are provided for.

In Section 40, the orphans' court is empowered to authorize
fiduciaries to settle or compromise litigation or disputes.

In Section 41, the power of fiduciaries to invest trust funds is
extended.

In Section 42, more extensive powers are given to fiduciaries to
incorporate or join in the incorporation of their decedent's busi-
ness.



256 FIDUCIARIES ACT CONTENTS

In Section 46 and other sections, the term for the settlement of
a decedent's estate is shortened to six months instead of one
year from the date of the grant of letters testamentary or of ad-
ministration ; and in the same section power is expressly given to
the orphans' court to have examined the assets of estates in the
hands of fiduciaries. The Commissioners have also provided for
express notice of the filing of accounts to be given to all persons
who claim to be interested.

In this section the law is made more specific as to the place
where trustees' accounts should be filed ; and the jurisdiction over
testamentary trustees is made exclusive in the orphans' court.

In Section 49, more specific provisions are made as to distribu-
tion of estates.

In Section 53, the law as to the removal of fiduciaries is
codified and revised, and summary power is given to the court
in cases that seem to require it.

In Section 58, the powers of foreign fiduciaries are revised.

In Section 59, the law on the subject of the appointment of
guardians is recast and codified.

In Section 60, the law on the subject of trustees durante
absentia is revised in connection with the law as to the estates of
presumed decedents.

TABLE OF CONTENTS.

1917 Section

Pamphlet Number

Laws Herein

The Fiduciaries Act 447 353

Section I. Definition of "fiduciary," 457 354

Section 2. Granting of letters testamentary and of

administration, 355

(a) Jurisdiction of register, 355

(b) Letters not to be granted after twenty-one

years, except on order of court, 458 356

(c) Who entitled to letters of administration, 357

(d) Petition for letters, 358

Section 3. Letters of administration c. t. a. and

d. b. n., 359

(a) Granting letters c. t. a 359

(b) Granting of letters d. b. n. c. t a. 360

(c) Granting of letters d. b. n., 459 361

(d) Powers of executors extended to admin-
istrators, c. t. a., 362

(e) Powers of administrators d. b. n., 363



FIDUCIARIES ACT CONTENTS



257



1917 Section
Pamphlet Number
Laws Herein
Section 4. Granting of letters durante minoritate,

durante absentia, and pendente lite, 364

Section 5. Acts of administrator or executor not to
be impeached although will, or later will,

be discovered, 460 365

Section 6. Presumed decedents, 366

(a) Petition and advertisement, 366

(b) Petition and advertisement as to ancillary

letters, 367

(c) Hearing by court, or by examiner and

master ; competency of witnesses 461 368

(d) Decree that presumption of death is made

out, and advertisement thereof, 369

(e) Confirmation or vacation of decree, 370

(f) Effect as to real estate ; title of purchaser ;

bond by party selling or conveying 462 371

(g) Administration and distribution of estate, 372
(h) Refunding bonds; appointment of trustee

on refusal, neglect, or inability to give

bond, 463 373

(i) Vacation of decree; effect as to acts done, 374

(j) Intervention in actions by persons erron-
eously supposed to be dead; opening of

judgments, 375

(k) Procedure where will or later will is

produced after letters have been granted, 464 376

(1) Citation by register to parties interested,. . 465 377

(m) Probate of will, or later will; revocation

of letters, and granting of new letters,.. 378

(n) Payment of costs, 379

Section 7. Oaths of executors and administrators,.. 380

(a) Form of oath, 380

(b) Oath by officer of corporation, 466 381

Section 8. Bonds of administrators and executors, 382

(a) Form of bond of administrator, 382

(b) Bond of administrator c. t. a., 467 383

(c) Form of bond of nonresident executor,. . 384

(d) Grant of letters without bond ; liability of



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 27 of 71)