Raymond Moore Remick.

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

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Second. To the other parties in interest, in the order of their
seniority in age.

NOTE. This clause is new. The inclusion of parties entitled in re-
mainder covers the provision on that subject in Section 46 of the Act of
1832, 3 Purd. 3432. The inclusion of the surviving spouse, entitled in fee,
has been inserted to cover cases coming under the operation of the new
Intestate Act and cases where the surviving spouse takes an interest in
fee under the will of the decedent.

The provision as to seniority in age is substituted for the provisions
of Section 37 of the Act of 1832, 3 Purd. 3427, which related only to
cases of intestacy, and was derived from Section 22 of the Act of April
19, 1794, 3 Sm. L. 143, and of Section 46 of the Act of 1832, 3 Purd. 3432.

Section 37 of the Act of 1832 applied only to cases where no partition
could be made. Section 38, 3 Purd. 3430, provided for allotment of pur-
parts where the value of the purparts was unequal ; and Section 39, 3
Purd. 3431, covered the case where the purparts were fewer in number
than the parties entitled. The present section of this draft covers all
these cases. The other portions of Sections 37, 38 and 39 of the Act of
1832 have been incorporated in Section 9 of this draft. (See 11-13 supra.)

Section 37 of the Act of 1832 provided for award to the eldest son or
if he was dead to his children, if any, in the order of their birth, and
preferring males to females, and in like manner, to his other lineal
descendants in the same order, and then to the second and other sons and
their descendants, and finally to the daughters and their descendants in
the same manner.

Section 46 of the Act of 1832, provides that "when the decedent leaves
no lineal descendants, the like proceedings shall be had in all respects,
on the application of the persons in whom the estate shall vest in posses-
sion." Whether this means that the same order of priority is to be
followed as among lineal descendants seems not to have been decided.
Section 8 of the Act of April 4, 1797, 3 Sm. L. 296, covered the case of
the brothers and sisters.

The Commissioners are of opinion that it is better to adopt the simple
rule of seniority of age in all cases, whether the persons entitled are
lineal descendants or other relatives of the decedent taking under the
Intestate Law, or persons taking under his will, who may or may not be
related to him.

l (See 16 supra.)



PARTITION ACT SECTIONS 13 (&), (O-i4 17

18. OFFER TO NEXT IN SUCCESSION WHERE

PARTY ENTITLED FAILS TO APPEAR OR RE-
FUSES TO TAKE.

(&) In case the party entitled to a choice do not come into
court, in person or by guardian or committee, or attorney duly
constituted, or in case he shall refuse the same, a record shall be
made thereof, and the court may and shall direct the same to be
offered to the next in succession, according to the rules provided
in clause (a) of this section.

NOTE. This is taken from the last part of Section 40 of the Act of
1832, 3 Purd. 3431.

19. ELECTION TO TAKE REAL ESTATE, OR SHARE

THEREOF, POSTPONES PARTY AS TO OTHER
SHARES, OR AS TO REAL ESTATE IN OTHER
COUNTY.

(c) In any case where a party has elected to take the real
estate of a decedent in one county, or any share thereof, if
divided into shares, such party shall not have the right of
preference or election to take the real estate or any share thereof
in any other county, or any other share in the same county, until
all the other parties shall have neglected, after due notice, or
refused to take the same at such valuation.

NOTE. This is Section 45 of the Act of March 29, 1832, P. L. 190, 3
Purd. 3432, with the substitution of "a party" for "one of the heirs of
a decedent."

The section was founded on Section 9 of the Act of April 7, 1807,
P. L. 155, 4 Sm. L. 398 at p. 401, 3 Purd. 3447, which is recommended for
repeal.

20. PERMITTING RESIDUE OF PREMISES TO RE-

MAIN FOR PARTIES NOT APPEARING.

SECTION 14. The orphans' court having jurisdiction in any
case of partition shall have power, wherever it shall appear ad-
visable and proper, to cause the share or shares of the party or
parties appearing in court to be allotted and assigned to them,
and to permit the residue of the premises to remain for the person
or persons entitled thereto, and subject to a future partition
among them, if more than one person be so entitled.

NOTE. This is Section 10 of the Act of April 25, 1850, P. L. 571, 3
Purd. 3453. That section applies to the common pleas as well, and is
recommended for repeal only so far as relates to the orphans' court.
2



ig PARTITION ACT SECTION 15

21. ALLOTMENT TO WIDOW AS HIGHEST BIDDER.

SECTION 15. Where the real estate, or any part thereof, shall
be allotted to the widow as the highest bidder, two-thirds of the
purchase money thereof, in cases where by existing laws the
widow is entitled to a dower of one-third in the real estate,' and
one-half of the purchase money thereof, in cases where by exist-
ing laws the widow is entitled to a dower of one-half in the real
estate, shall be paid to those entitled thereto, as provided by law;
the remaining one-third or one-half of such purchase money as
the case may be, shall be paid to a trustee or trustees to be
appointed by the court, which trustee or trustees shall give bond
in double the amount to be received; the trustee or trustees as
aforesaid, shall pay semi-annually, in lieu of dower, the interest
on said one-third or one-half of the purchase money, as the case
may be, to the widow during her life, and at her death, the said
trustee or trustees shall pay the purchase money to such persons
as are entitled by law thereto.

NOTE. This is the remainder of Section I of the Act of May 8, 1909,
P. L. 489, 6 Purd. 7052. See note to Section 12 of this draft. (See 16
supra.)

The section as it stands will cover cases of widows of persons dying
before the new Intestate Act goes into effect.

"Shall pay semi-annually" has been substituted for "be paid annually."
Semi-annual payments are recommended for the convenience of the
widow. The Act of June I, 1907, P. L. 364, read "pay annually." The
words "be paid annually," which are obviously incorrect, were intro-
duced in the amendment of 1909, presumably by inadvertence.

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.

"The cited portions of the said Orphans' Court Partition Act of 1917,
P- L. 337 (i5, J 8 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 determine all
matters pertaining to the descent and inheritance of estates of decedents,



PARTITION ACT SECTION 15 19

fixing the character, kind, quantity and amount of the interests or 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 matter
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
statutory 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 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 law makers
to meet the circumstances and requirements of 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 entirely irrespective of the
dates of their respective deaths. Now, as to widows of intestates dying
after December 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 interests 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 language 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 estates of intestates dying before December 31, 1917, and in
estates of testates dying before said date, where the widows elect to take
against the wills of their respective husbands. Accordingly we reach the



20 PARTITION ACT SECTIONS 15-16-17 (o) .

conclusion that there exists no clash or conflict between the provisions of the
Orphans' Court Partition 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 attention. It is well to observe moreover in passing that did indeed
such conflict exist between the provisions of the two statutes under con-
sideration, the provisions of the Orphans' Court Partition Act of -1917,
P- L. 337, aside from its being a mere possessory action, would, for an-
other important reason, be legally forced to yield to the pertinent pro-
visions 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 becoming 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' Per Hughes, P. J., in Dodd's
Estate, i Wash. 236.

22. PARTITION TO BE FIRM AND STABLE AFTER

FINAL DECREE.

SECTION 16. Upon return made by commissioners appointed
by agreement of the parties, or of the inquisition taken, or when
the real estate or any purpart thereof is awarded or allotted by
the court, and a final decree is entered, the partition thereby
made shall be firm and stable forever, subject only to the right
of appeal.

NOTE. This supplies the last part of Section 36 of the Act of 1832,
3 Purd. 3418, which provides that on return by the commissioners or
inquisition the court shall have power to give judgment that the partition
thereby made be firm and stable forever. The provision of that section
as to costs is covered by Section 35 of this draft (see 45-6 infra).

23. OWELTY; PAYMENT OR SECURITY.

SECTION 17. (a) In every case provided for in Section 12 or
Section 13 of this act 1 , the party bidding in or accepting the real
estate, or some one on his behalf, shall pay to the other parties
interested their proportional parts of the value of such estate,
according to the amount of the bid, or the just appraisement
thereof, made in manner aforesaid, as the case may be, or shall
give good security by recognizance, or otherwise, to the satis-
faction of the court, for the payment thereof, with legal interest,
at such time or times as in the judgment of the court shall be to

1 See 16-19, supra.



PARTITION ACT SECTION 17 (a), (&) 2 I

the advantage of those entitled to the estate ; and the persons to
whom or for whose use payment or satisfaction shall be so made,
in any of the cases aforesaid, for the respective parts or shares
of such real estate, shall be forever barred of all right or title to
the same.

NOTE. This is the last part of Section 37 of the Act of March 29,
1832, P. L. 201, 3 Purd. 3428, extended to all cases covered by Sections 12
and 13 of this draft (see 16-19, supra) instead of those cases only which
are covered by Section 13. The provision of Section i of the Act of May 8,
1876, P. L. 140, 3 Purd. 3432, has been substituted for the words "in some
reasonable time," not exceeding twelve months, as the court may direct,"
after the words "with legal interest." Section i of the Act of 1876 is
recommended for repeal.

Where the bidder is ready and willing to make payment to the parties
in interest in full as soon as the necessary searches against the title can
be procured, exceptions relating to making payment on account or the
entry of security will be dismissed with leave to apply to the court for
a further order if payment in full is not made within sixty days.
Battersby's Estate, 29 Dist. 221.

24. ENFORCEMENT OF PAYMENT BY NON-RESI-
DENT.

(&) Where the court shall decree any share or shares to any
person not residing within this commonwealth, with the pay-
ment of owelty annexed, it shall be lawful for the court, upon
application made by any party lawfully interested in the same,
to order a rule upon such party, his or her legal heirs or repre-
sentatives, requiring the payment of said owelty, at such time
and upon such terms and conditions as the court shall direct. If
the said rule cannot be served within this commonwealth, the
court may, in its discretion, authorize service of such rule upon
him or them personally or direct such publication thereof as shall
appear to the court to be reasonable and proper. Upon return
and proof of service or publication as aforesaid, and upon refusal
or neglect to comply with the said rule, the court may enforce
the same by ordering a sale of such share or shares, for the pur-
poses aforesaid, as in other cases of sales under this act.

NOTE. This is Section I of the Act of April 6, 1844, P. L. 214, 3 Purd.
3432. The provision as to service by publication in the Act of 1844 is by
reference to Section i of the Act of March 26, 1808, P. L. 144, 4 Sm. L.
518, 3 Purd. 3408, which relates to actions of partition and provides for pub-
lication in one daily newspaper of the City of Philadelphia as well as in a
newspaper in the county where the land lies. The reference at the end of
Section i of the Act of 1844 is to the Act of March 29, 1832.



22 PARTITION ACT SECTIONS 17 (&), (c)-i8 (a)

Provisions for service outside of the state, similar to those in Section
5 (see 7 supra) of this draft, and for publication, as in Section n
(see 15 supra) have been added.

25. APPOINTMENT OF TRUSTEE FOR PARTIES

WHO ARE UNKNOWN, OR CANNOT BE FOUND.

(c) Wherever it shall appear that any party or parties, in
whose favor a lien exists until payment be made to them of their
respective shares of the money due from the party or parties to
whom the real estate or any purpart thereof is awarded at the
appraisement or at a price bid therefor above the appraisement,
is or are unknown or cannot be found, the court shall have power
to appoint a trustee to whom the shares of money due said un-
known or other party may be paid, with power in said trustee,
upon payment to him of said money, to satisfy said lien upon
the proper records, whereupon the said land shall be freed and
discharged from said lien. Such trustee shall first file a bond,
to be approved by the court, conditioned for the faithful appli-
cation of the money to him so paid, as aforesaid, according to
the trust and order of court. It shall be the duty of the trustee
to invest the said moneys in securities authorized by law.

NOTE. This is Section i of the Act of April 3, 1903, P. L. 151, 3 Purd.
3454, except that the second proviso has been added.

Section 2 of the Act of 1903 is a general repealer. The Act of 1903
applies also to proceedings in the common pleas and is recommended
for repeal only so far as relates to the orphans' court.

26. WIDOW'S INTEREST; TO REMAIN CHARGED

ON THE PREMISES.

SECTION 18. (a) Should the widow of the decedent be living at
the time of the partition and entitled to a life estate in one-half
or one-third of the real estate under the intestate laws, or should
such widow elect to take against the will of the decedent and
thereby be entitled to such life estate, she shall not be entitled to
payment of the sum at which her purpart or share of the estate
shall be valued, but the same, together with interest thereof,
shall be and remain charged upon the premises, if the whole be
taken by one person, or upon the respective shares, if divided as
hereinbefore mentioned, and the legal interest thereof shall be
semi-annually and regularly paid by the persons to whom such
real estate shall be adjudged, their heirs or assigns, holding the
same, according to their respective portions, to the said widow,



PARTITION ACT SECTION 18 (a), (6) 23

during her natural life, in lieu and full satisfaction of her dower
at common law, and the same may be recovered by the widow by
distress or otherwise, as rents in this commonwealth are recover-
able. On the death of the widow, the said principal sum shall
be paid by the persons to whom the said real estate shall have
been adjudged, their heirs or assigns, holding the premises, to
the persons thereunto legally entitled.

NOTE. This is Section 41 of the Act of March 29, 1832, P. L. 202, 3 Purd.
3433. with the insertion of language to make it apply only to cases of dece-
dents dying before the new Intestate Act goes into operation, and the
substitution of "persons" for "child or other descendant."

The section was derived from Section 22 of the Act of April 19, 1794,
3 Sm. L,. 143, and Section 6 of the Act of April 7, 1807, P. L,. 155, 4 Sm.
L. 398 at p. 400. The latter section is printed in the Digests, but since it
seems to have been supplied by the Act of 1832, its express repeal is now
recommended.

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. 429) 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.

Dodd's Estate, i Wash. 236. (See extract from opinion under Section
21, supra.)

27. CHARGING WIDOW'S INTEREST ON PARTICU-
LAR PURPARTS.

(6) When the real estate of any decedent shall consist of
several different tracts or pieces of land, and the same shall be
adjudged to any of the parties entitled thereto, or ordered to be
sold, by any orphans' court, such court shall have authority to
decree that the share or purpart of the widow of such decedent
in the whole of said real estate, where such widow is entitled to
a life interest, together with the interest thereof, shall be and
remain charged on one or more of the said tracts or pieces of
land, in the manner and for the purposes now provided by law,
and that the remaining tracts or pieces of land shall be wholly
discharged from the share or purpart of such widow, or any
part thereof : Provided, That the pieces or tracts of land, upon



24 PARTITION ACT SECTIONS 18 (6) -19-20

which such purpart or share shall be so charged as aforesaid,
shall, in the opinion of such court, be fully sufficient to secure
the payment of the principal and interest of such purpart or
share: And provided further, That such widow shall have the
same remedies for recovery of her interest as are provided in
clause (a) of this section.

NOTE. This is Section I of the Act of January 7, 1867, P. L. 1367, 3
Purd. 3435, with the insertion of the words, "where such widow is entitled
to a life interest," to show that the section will apply only to cases where
the decedent has died or shall die before the new Intestate Act goes into
effect.

28. OTHER UNDIVIDED INTERESTS TO REMAIN

CHARGED ON REAL ESTATE.

SECTION 19. Should any person other than the widow of the
decedent be entitled, under the intestate laws, or should any
person, including the widow of the decedent, be entitled under
the will of the decedent, to a life interest in an undivided share
of the real estate, the share of such tenant for life shall not be
paid to him or her, but the same, together with interest thereof,
shall be and remain charged upon the premises, if the whole be
taken by one person, or upon the respective shares, if divided as
hereinbefore mentioned, and the legal interest thereof shall be
semi-annually and regularly paid by the persons to whom such
real estate shall be adjudged, their heirs or assigns, holding the
same, according to their respective portions, to the said tenant
for life, during his or her natural life, and the same may be
recovered by such life tenant as debts of like nature in this com-
monwealth are recoverable. On the death of the life tenant, the
said principal sum shall be paid by the persons to whom the said
real estate shall have been adjudged, their heirs or assigns,
holding the premises, to the persons thereunto legally entitled.

NOTE. This is a new section, making provisions for other undivided
life interests similar to those made by Section 18 (a) (see 26 supra) for
widows, except that the remedy for collection is made the same as the
remedy for recovery of "debts of like nature."

29. DEDUCTION OF RENTAL VALUE FROM SHARES

OF PARTIES WHO HAVE BEEN IN POSSES-
SION.

SECTION 20. In case of partition of real estate now or here-
after held by two or more persons as tenants in common, where
one or more of said tenants shall have been or shall hereafter be



PARTITION ACT SECTIONS 20-21 25

in possession of said real estate, the parties in possession shall
have deducted from their distributive shares of said real estate
the proportional part of the rental value thereof to which their
co-tenant or co-tenants are entitled for the time such real estate
shall have been in possession as aforesaid.

NOTE. This incorporates so much of Section i of the Act of June 24,
1895, P. L. 237, 3 Purd. 3454, as relates to partition. The other part of
the section gives a remedy for such rentals by action between co-tenants.
The section is recommended for repeal only so far as relates to the



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 3 of 71)