Raymond Moore Remick.

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

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P. L. 218, 6 Purd. 7038, which relates only to the reduction of bonds.
It is inserted in the new act in order to avoid repeating in many places
the words "executors, administrators, guardians and trustees."

355. GRANTING OF LETTERS TESTAMENTARY AND
OF ADMINISTRATION JURISDICTION OF
REGISTER.

SECTION 2. (a) Letters testamentary and of administration
shall be grantable only by the register of wills of the county within
which was the family or principal residence of the decedent, at
the time of his decease; and if the decedent had no such resi-
dence in this commonwealth, then ancillary letters testamentary
or of administration shall be grantable only by the register of the
county where the principal part of the goods and estate of such
decedent within this commonwealth shall be.

NOTE. This is derived from the first part of Section 6 of the Act of
March 15, 1832, P. L. 135, i Purd. 1074, which was new in that act.

The language as to a decedent having no residence in the commonwealth
has been modified so as to show that it refers to the granting of ancillary
letters. See Sayre's Exrs. v. Helme's Exrs., 61 Pa. 299.

The provision that "letters testamentary and of administration shall
be grantable only by the register of wills of the county within which was
the family or principal residence of the decedent at the time of his
decease," refers to residence, not domicile. Therefore, his "family or
principal residence," in any conflict between two counties as to the juris-
diction of the register of wills, must mean the place where he actually
resides with his family ; and this is purely a question of fact.
In dismissing exceptions the Court, per GEST, J., held :
"The argument of the learned counsel for the exceptant is based on
the theory that the decedent's domicile was in Philadelphia, and that the
respondent failed to show that the decedent intended to remain in Mont-
gomery County ; but this is aside from the real question. The act clearly
refers to residence, not domicile; it says, 'the family or principal resi-
dence.' A man can have but one domicile, though he may have any number
of residences, therefore, his 'family or principal residence,' in this conflict
between two counties as to the jurisdiction of the register of wills, must
mean the place where he actually resides with his family, and this was
undoubtedly in Glenside. It may be admitted that in some of the de-
cisions the words residence and domicile are used as synonymous, but



272 FIDUCIARIES ACT SECTION 2 (o), (6), (c)

strictly, in cases of administration, succession, etc., the law of domicile
applies when questions arise as to the application of the law of different
states, or of this State and that of a foreign country. Such was the case
in Barclay's Estate, 259 Pa. 401, relied on by the exceptant, and Lowry's
Estate, 6 Pa. Superior Ct. 143. And as domicile depends not only upon
the actual residence of the person, but upon his intention of retaining it as
his home, or of changing it, great weight is properly attached to his declara-
tion of intention, or to the facts from which such intention may be reason-
ably inferred ; Dicey on Domicile, chap. II ; Guier v. O'Daniel, I Binn. 349 ;
Bumpus's Estate, 23 Dist. R. 654. Some of the distinctions that may exist
between domicile and residence are considered in Taney's Estate, 97 Pa. 74,
and Raymond v. Leishman, 243 Pa. 64, and though many perplexing
questions may arise from these distinctions, this is not one of them."

Blessing's Est., 29 Dist. 3, 68 P. L. 78; 15 Del. 224, affirmed in 267
Pa. 380.

356. LETTERS NOT TO BE GRANTED AFTER

TWENTY-ONE YEARS EXCEPT ON ORDER
OF COURT.

(b) No letters testamentary or of administration shall in any
case be originally granted upon the estate of any decedent, after
the expiration of twenty-one years from the day of his decease,
except on the order of the orphans' court, upon due cause shown.

NOTE. This is Section 21 of the Act of 1832, I Purd. 1075, which cor-
responded to the latter part of Section 20 of the Commissioners' Draft.
The first part of that section of the draft provided that letters should not
issue until the expiration of five days after the death.

The twenty-one year provision was new in the Act of 1832. The Com-
missioners remarked that it did not apply to cases where an administration
commenced had become vacant. In Hanbest's Estate, 21 Pa. Super Ct.
427, however, it is held that the word "originally" in the second line of
the section is synonymous with "in the first instance," and that the section
applies not only to cases in which no letters of administration have been
previously granted, but also to cases in which prior letters have been
issued.

The words "testamentary or" have been inserted, and "orphans' court"
substituted for "register's court."

See form 74.

357. WHO ENTITLED TO LETTERS OF ADMINIS-

TRATION.

(c) Whenever letters of administration are by law necessary,
the register having jurisdiction shall grant them in such form
as the case shall require, to the widow, if any, of the decedent,
or to such of his relations or kindred a.s by law may be entitled



FIDUCIARIES ACT SECTION 2 (c) 273

to the residue of his personal estate, or to a share or shares
therein, after payment of his debts; or he may join with the
widow in the administration, such relations or kindred, or such
one or more of them, as he shall judge will best administer the
estate, preferring always, of those so entitled, such as are in the
nearest degree of consanguinity with the decedent, and also
preferring males to females; and in case of the refusal or in-
competency of every such person, to one or more of the prin-
cipal creditors of the decedent applying therefor, or to any fit
person at his discretion. 1 Provided, That if such decedent was
a married woman, her husband shall be entitled to the adminis-
tration, in preference to all other persons : And provided further,
That in all cases of an administration with a will annexed, where
there is a general residue of the estate bequeathed, the right to
administer shall belong to those having the right to such residue,
and the administration in such case shall be granted, by the reg-
ister, to such one or more of them as he shall judge will best
administer the estate. 2

NOTE. This is Section 22 of the Act of March 15, 1832, P. I,. 135, i
Purd. 1080, corresponding to Section 21 of the Commissioners' Draft. It
was intended as an arrangement and condensation of the material pro-
visions of the Statute of 21 Henry VIII, c. 5, with the addition of a pro-
viso, derived from Section 5 of the Act of March 21, 1772, I Sm. L. 389,
giving the husband the right to administer, and a clause giving residuary
legatees the right to letters with the will annexed.

See form 39.



1 Where the register of wills granted letters of administration to a
person not a relative, heir, legatee, creditor, nor a resident of the county
in which the decedent lived, the letters will be revoked.

A register of wills may under the Act of June 7, 1917, P. L. 447, Sec-
tion 2, clause (c), in the absence of kin or creditor, grant letters of
administration "to any fit person, at his discretion," but his action does
not depend on the literal interpretation of clause (c) ; his discretion must
be legal, founded on good reason, and not a wilful or arbitrary exercise
of power. Boyko's Est., 49 Pa. C. C. 495 ; 21 Lack. Jur. 161.

The Act of June 7, 1917, P. L. 447, cannot be construed as permitting
a minor to administer an estate and there is nothing in the act to indicate
that a minor has any right of election.

When no persons qualified to act apply for administration on the estate
of a decedent, the register must exercise his judgment in the selection of
a fit person.

18



274 FIDUCIARIES ACT SECTION 2 (c), (<f)

The official counsel of a register of wills is not disqualified to act as
administrator of an estate, by appointment of the register for whom he
is counsel.

The Court, per HENRY, P. J., specially presiding, held:

"It is very evident that only those relatives or next of kin who may
be entitled to the residue of the personal estate of the decedent are the
ones who are entitled to administration or to elect an administrator.
This provision of the Act of Assembly could not possibly be construed
as permitting a minor or a non compos mentis to administer an estate and
there is nothing in the Act to indicate that a minor has any right of
election. In the absence of persons qualified to act applying for admin-
istration, the Register must exercise his own good judgment in the
selection of some fit person

"While it is true that the Register of Wills could not act as adminis-
trator, yet, under the Act of Assembly this is incident to his office and
could not be construed as extending to his counsel or business or official
associates. Possibly there would be greater reason why an executive
officer of a corporation should not act as administrator where that cor-
poration is the guardian of the minor inheriting the estate." Hanshaw's
Est, 22 Dauphin 178 (1919).

2 This provision does not apply where the testator asks "the Court to
appoint the executors." Shontz's Est. 71 Super. 295.

See Sharpless' Est., 28 Dist. 746; 15 Del. 16; 20 Luz. 161.

358. PETITION FOR LETTERS.

(d) Every application to any register of wills for the issuance
of letters testamentary or of administration shall be in the form
of a petition, duly verified by affidavit, setting forth the residence
and citizenship and the place, day and hour of death of the de-
cedent, the estimated value of his property, real and personal, the
location of his real property, and, in the case of an intestacy, the
names and residences of the surviving spouse, if any, and of the
next of kin of the intestate, together with an averment that the
persons named are the surviving spouse and all the next of kin
of the intestate. In the case of applications for letters testamen-
tary, such applications shall set forth whether the testator has
married and whether any children have been born to such testator
since the execution of the will offered for probate. 3

NOTE. This is a new clause, drafted in accordance with the existing
practice in Philadelphia and Allegheny Counties and perhaps in others.
As the practice is understood not to be uniform throughout the State, the
Commissioners have considered it proper to recommend it as a general law.
The provision as to the statement of citizenship of the decedent has been



FIDUCIARIES ACT SECTIONS 2 (d)-3 (a), (&) 275

added to cover cases of alien decedents, where questions as to notice to
consuls, etc., may arise.

This clause supplies Sections i and 2 of the Act of May 15, 1874, P. L.
194, i Purd. 1075, which provide that all persons applying for letters shall
file an affidavit as to the day and hour of the death, which shall be filed by
the register. Those sections are therefore recommended for repeal.

3 As amended by Act of March 24, 1921 (P. L,. Si).

See forms i, 10, 12, 13, 35, 40, 42.

Where letters of administration have been granted to a niece and nephew,
there being no children, and without information to the register of other
nieces and nephews, the register may revoke said letters in the interest of
all concerned, and to correct an honorable misunderstanding.

Sec. 2, clause d, Act of 1917, P. L. 447, is mandatory and every applica-
tion for letters should be by petition, setting forth, inter alia, names and
residences of all the next of kin.

Sharp less' Est, 28 Dist. 746, 15 Del. 16, 20 Luz. 161.

359. LETTERS OF ADMINISTRATION C. T. A. AND

D. B. N., GRANTING LETTERS C. T. A.

SECTION 3. (a) Whenever the executors named in any last
will and testament shall all refuse or renonuce the trust and exe-
cution thereof, the register having jurisdiction as aforesaid may
receive the probate of such will, and grant letters of administra-
tion with it annexed, to the persons by law entitled thereto.

NOTE. This is Section 18 of the Act of 1832, i Purd. 1074, which corre-
sponded to Section 17 of the Commissioners' Draft, and was intended to
provide "for cases of intestacy by the renunciation of the trust of execution
by all the executors." The Commissioners referred to the Statute of 21
Henry VIII, c. 5, Section 3, Rob. Dig. 250, as mentioning this case.

See forms 12, 42.

360. GRANTING OF LETTERS D. B. N. C. T. A.

(&) Whenever a sole executor, or the survivor, of several ex-
ecutors, shall die, leaving goods or estate of his testator unadmin-
istered, the register having jurisdiction shall, notwithstanding such
executor may have made his last will and testament, and appointed
an executor or executors thereof, grant letters of administration of
all such goods and estate, in the same manner as if such executor
had died without having made any testament or last will ; and the
executor of such deceased executor shall in no case be deemed
executor of the first testator.



276 FIDUCIARIES ACT SECTION 3 (&), (c), (d)

NOTE. This is Section 19 of the Act of March 15, 1832, P. L. 135, i
Purd. 1074, which corresponded to Section 18 of the Commissioners' Draft.

By the common law, the trust of the sole executor might be transmitted
to his executor, and the same was true as to the survivor of several execu-
tors. The Act of March 12, 1800, 3 Sm. L. 433, Section 3, enabled admin-
istrators with the will annexed to execute the powers conferred -upon
executors by will in relation to lands. The Commissioners remarked:
"This act having thus provided for the cases in which the powers of the
executor of an executor are most important, it is proposed by this section
to abolish his powers altogether * * * We will only add that conveni-
ence in the administration of the two estates and the security of creditors
and others interested in different rights recommend the adoption of the
section under consideration."

See form 13.

361. GRANTING OF LETTERS D. B. N.

(c) In all cases where the administration of the estate of any
decedent shall become vacant, by reason of death or of any decree
of the orphans' court, or from any other cause, the register having
jurisdiction shall, on proper proof being made of the fact, grant
new letters, in such form as the case shall require, to the person
or persons by law entitled thereto.

NOTE. This is Section 20 of the Act of 1832, I Purd. 1075, which corre-
sponded to Section 19 of the Commissioners' Draft, and was new in the
Act of 1832. It is now changed by providing for vacancies caused by
death or otherwise, and by substituting "proper proof being made of the
fact" for "being certified thereof, under the seal of the said court."

362. POWERS OF EXECUTORS EXTENDED TO AD-

MINISTRATORS C. T. A.

(d) All and singular the powers, duties and liabilities of execu-
tors are hereby extended to administrators with a will annexed.

NOTE. This is Section 67 of the Act of February 24, 1834, P. L. 73, I
Purd. noo, which was introduced in that act to avoid the necessity of
particular provisions in the various sections. After "singular," the words
"the provisions of this act relative to" have been omitted.

It seems unnecessary to re-enact Section i of the Act of February 7,
1814, P. L. 44 (6 Sm. L. 102), which provides:

"All the powers and authorities vested in administrators with the will
annexed, in case of death, refusal, renouncing or dismissal of the executor
or executors, by the act to which this is supplementary, be and are hereby
extended to, and vested in administrators with the will annexed, in those
cases where no executor or executors shall have been appointed, to be



FIDUCIARIES ACT SECTION 3 (d), (<?) 277

exercised as fully as any executor or executors might have done if ap-
pointed."

An administrator with a will annexed has the same powers and duties
of an executor who made a contract for the sale of real estate, and can
carry out such contract and give a good and legal title, since he has given
bond at the time of qualifying. Kiefer's Adm'r. v. Jones, 50 Pa. C. C. 269,
(s. c. sub nom Daniel v. Jones), 30 Dist. 633.

363. POWERS OF ADMINISTRATORS D. B. N.

(e) Administrators de bonis non, with or without a will an-
nexed, shall have power to demand and recover from their prede-
cessors in the administration, or their legal representatives, all
moneys, goods and assets remaining in their hands due and be-
longing to the estate of the decedent, and to commence and prose-
cute actions upon promises made to such predecessors in their
representative character, and to take and defend appeals and sue
forth and defend writs of scire facias and writs of execution
upon judgments, obtained by or in the name of the executors or
administrators into whose place they may have come, and also
to proceed with and perfect all unexecuted executions, which may
have been issued thereon at the instance of such predecessors:
Provided, That when any suit shall have been brought by an ad-
minstrator de bonis non for the recovery of moneys, goods or
assets, remaining in the hands of his predecessors, or their legal
rpresentatives, before they shall have settled their final adminis-
tration account, the court in which such action shall be brought
shall have power to stay the proceedings therein, on the defend-
ants' filing such an account in the register's office of the proper
county within a reasonable time to be fixed by said court, until
said account shall have been finally settled and confirmed; and
on the production of a certified copy of said account, so settled
and confirmed, the court in which such suit shall be pending is
hereby authorized and required to render judgment for the bal-
ance which shall thereby appear to be due to either party.

NOTE. This is Section 31 of the Act of 1834, i Purd. 1112, which corre-
sponded to Section 32 of the Commissioners' Draft, except that the draft
did not include the proviso. "Take and defend appeals" has been inserted
and "of error" omitted. The provision as to time for filing the account is
changed. The Act of 1834 makes it "twenty days previous to the term next
succeeding that to which the writ was returnable." "Confirmed" has been
substituted for "adjusted."



278 FIDUCIARIES ACT SECTIONS 3 (*)-4

Section 32 of the draft considerably enlarged the provisions of the Stat-
ute of 17 Car. II, Chapter 8, Section n, and was intended to remedy a
defect in the law. The Commissioners referred to the decision in Allen
v. Irwin, i S. & R. 549, that an administrator d. b. n. could not maintain
assumpsit against the administrators of a deceased executor.

364. GRANTING OF LETTERS DURANTE MINORI-
TATE, DURANTE ABSENTIA AND PEN-
DENTE LITE.

SECTION 4. The register of wills having jurisdiction may, when
the circumstances of the case require, grant to any fit person or
persons letters of administration durante minoritate, durante
absentia, or pendente lite, security to be entered as in other cases
of administration.

NOTE. This is a new section, giving express sanction to powers now
exercised by registers as to letters durante absentia and pendente lite, and
superseding Section 23 of the Act of March 15, 1832, P. L. 135, i Purd.
1083, which provides :

"Whenever all the executors named in any last will and testament, or all
the persons entitled as kindred to the administration of any decedent's
estate, shall happen to be under the age of twenty-one years, it shall be
lawful for the register to grant administration as aforesaid to any other
fit person or persons, subject nevertheless to be terminated at the instance
of any of the said minors who shall have arrived at the full age of twenty-
one years."

In a dispute over the probate of a will, the grant of letters of admin-
istration pendente lite by the register of wills was held void where on
petition the orphans' court had directed the register to certify the record
for adjudication, but prior to the service of said order an order had been
made by the register but the oath had not been taken or bond given until
after such service. The Fiduciaries Act of 1917, P. L. 447, requires that
the oath must be administered and a bond given before letters of adminis-
tration can issue.

"Jurisdiction is in the register to grant letters of administration gener-
ally, including letters pendente lite under special circumstances and the pro-
ceeding is well defined.

Section 4 of the Fiduciaries Act of 1917 provides that the register 'may,
when the circumstances of the case require, grant to any fit person or
persons letters * * * pendente lite, security to be entered as in other
cases of administration.' But Section 7, Par. a, of said act, provides that
before the register issue letters, he shall administer an oath in the pre-
scribed form: Section 8, Par. a, provides that upon his grant of letters
he shall take a bond as there required. If he grant such letters (Par. d
of said section) without these prerequisites 'such letters shall be void.'
Letters are not to issue unless bond has been previously given, Moore v.
Rahm, 2 S. & R. 375; in such a case bv the very terms of the law the



FIDUCIARIES ACT SECTIONS 4-5-6 (a) 279

letters are void, Bradley v. The Commonwealth, 31 Pa. 522 ; failure to take
the oath at the time may not per se void the grant of letters, but failure
to give the bond has a very different effect, Beeber's Appeal, 99 Pa. 596;
the register having made his selection, Hawkins' Orphans' Court Practice,
Section 28, the next steps are the oath, and the bond, 'and thereupon
issue letters of administration.'

"The register's appointment as of October iQth was not a grant of letters,
it had no status as such by law or in practice." Henry's Est., 30 Dist.
945, 69 P. L. J. 737J 35 York 122.

365. ACTS OF ADMINISTRATOR OR EXECUTOR NOT

TO BE IMPEACHED ALTHOUGH WILL OR
LATER WILL, BE DISCOVERED.

SECTION 5. All such acts of administration as would be in due
course of law, in case of intestacy, if done in good faith and
without notice of a will, and all such acts of any executor as
would be in due course of law, if the will under which letters
testamentary were issued were the last will of the testator, and if
done in good faith and without notice of a later will, shall not be
impeached, though a will, or a later will, should afterwards be dis-
covered and established.

NOTE. This Section 68 of the Act of 1834, i Purd. uoo, enlarged to in-
clude acts of an executor under a former will in case a later will is dis-
covered. The Commissioners of 1830 remarked that this section was "in
conformity with the obvious rules of equity and justice, and with the
jurisprudence of some of our sister states."

366. PRESUMED DECEDENTS, PETITION AND AD-

VERTISEMENT.

SECTION 6. (a) Whenever, hereafter, any person shall be pre-
sumed to be dead, on account of absence for seven or more years
from the place of his or her last domicile, whether the same be
within this commonwealth, or in any other state, territory or pos-
session of the United States, or in any foreign country, any per-
son entitled under the last will and testament of such presumed
decedent or under the intestate laws to any share in his or her
estate within this commonwealth, or the escheator for the com-
monwealth, may present a petition to the orphans' court of the
county of such person's last residence or, where the presumed
decedent was a rion-resident of this commonwealth, in the or-
phans' court of the county where the greater part of his property
within this commonwealth may be situated, setting forth the facts
which raise the presumption of death. The said court, if satis-



2 8o FIDUCIARIES ACT SECTION 6 (a), (&)

fied as to the person who would be entitled to letters testamentary
or of administration were the presumed decedent in fact dead,
shall cause to be advertised, in a newspaper published in said
county, once a week for four successive weeks, together with such
other advertisement as the court, according to the circumstances
of the case, shall deem expedient or advisable, the fact of such
application, together with notice that on a day certain, whch shall
be at least two weeks after the last appearance of said advertise-
ment, the court, or master appointed by the court for that pur-
pose, will hear evidence concerning the alleged absence of the pre-
sumed decedent, and the circumstances and duration thereof.

NOTE. This is a combination of Section i of the Act of June 24, 1885,
P. L. 155, i Purd. 1075, and Section I of the Act of May 28, 1913, P. L.
369, 5 Purd. 5886.

The latter act is followed in providing for application in the first in-



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 29 of 71)