Raymond Moore Remick.

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

. (page 30 of 71)
Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 30 of 71)
Font size
QR-code for this ebook


stance to the orphans' court. This seems to be the better practice, as there
is no apparent reason for applying to the register and having him at once
certify the matter to the court.

The section has been altered so as to include cases where the last domi-
cile was outside the commonwealth. This is now covered, but as to ancil-
lary letters only, by Section 9 of the Act of May 28, 1913, P. L. 373, 5
Purd. 5884, 5886.

The provisions have been extended to cases where the presumed de-
cedent has left a will, which is produced in the first instance. The case
of production of a will after letters of administration have been granted
is covered by clause (fe) of this section (see 376 infra). A provision for
additional advertisements has been inserted.

"The Act of 1855 as well as the Fiduciaries Act provides a complete
system for the distribution of estates of supposed decedents with a view
to protect and safeguard the rights of all parties concerned." Twining's
Est., 37 Montg. 116.

367. PETITION AND ADVERTISEMENT AS TO AN-
CILLARY LETTERS.

(&) Whenever, hereafter, letters of administration or letters
testamentary shall have been granted in any other state, territory
or possession of the United States, or in any foreign country, on
the estate of a resident thereof, presumed to be dead, on account
of absence for seven or more years from the place of his last
domicile, it shall be lawful for the person or persons, or trust
company, to whom such letters have been granted, to present a
petition to the orphans' court of the county within this common-
wealth in which all, or the greater portion, of the estate of said



FIDUCIARIES ACT SECTION 6(6), (c) 281

presumed decedent may be found, accompanied by a complete
exemplification of the record of the grant of such letters, praying
for the grant of ancillary letters testamentary or of administra-
tion upon the estate of such presumed decedent, situate, owing or
belonging to him within this commonwealth. The said court, if
satisfied that the person or trust company proposed in such pe-
tition would be a fit person or company to whom such letters
might be issued, shall cause publication to be made, in the man-
ner and for the period as provided in clause (a) of this section, of
the fact of such application, together with notice that on a day
certain, which shall be at least two weeks after the last appear-
ance of said advertisement, the court, or a master appointed for
the purpose, will hear evidence concerning the alleged absence
of the presumed decedent, and the circumstances and duration
thereof.

NOTE. This is Section i of the Act of May 28, 1913, P. L. 373, 5 Purd.
5884, somewhat condensed and with slight changes in wording so as to
make the language uniform with that of the last preceding clause. The
definition of "the proper county" contained in Section 8 of the Act of
1913 is embodied in the present clause; and the provision for application
to the register of wills is omitted. Provision is made for the grant of
ancillary letters to others than the domiciliary executor or administrator.
Cross-reference is made to the last preceding clause as to manner and time
of advertisement.

Section 2 of the Act of 1913, 5 Purd. 5885, providing for affidavits by
residents of the ward, etc., where the presumed decedent was last known
to reside, is recommended for repeal.

368. HEARING BY COURT, OR BY EXAMINER AND
MASTER; COMPETENCY OF WITNESSES.

(c) At the hearing in either of the cases provided for in the
preceding clauses of this section, the orphans' court shall take
such legal evidence as shall be offered, for the purpose of ascer-
taining whether the presumption of death is established, or may
appoint a master to take such testimony and report his findings
thereon ; and no person shall be disqualified to testify by reason
of his or her relationship as husband or wife to the presumed
decedent, or of his or her interest in the estate of the presumed
decedent.

NOTE. This embodies the provisions of Section 2 of the Act of June
24, 1885, P. L. 155, i Purd. 1075, Section 2 of the Act of May 28, 1913,
P. L. 369, 5 Purd. 5886, and Section 3 of the Act of May 28 1913 P. L.
373. 5 Purd. 5885. The provision for the appointment of a master is new.



282 FIDUCIARIES ACT SECTION 6 (<f), (<0

369. DECREE THAT PRESUMPTION OF DEATH IS

MADE OUT, AND ADVERTISEMENT THERE-
OF.

(d) If satisfied, upon such hearing, or upon the report of such
master, that the legal presumption of death is made out, the court
shall so decree, and the court may determine in such decree the
date when such presumption arose, and shall forthwith cause to
be published for three successive weeks, in the manner provided in
clause (a) of this section, a notice requiring the presumed de-
cedent, if alive, to produce in court satisfactory evidence of his
continuance in life, such evidence to be produced within twelve
weeks from the date of the last publication of the notice in the
case of an original application for the grant of letters, and within
four weeks from such date in the case of an application for an-
cillary letters.

NOTE. This is a combination of Section 3 of the Act of June 24, 1885,
P. L. 155, i Purd. 1076, Section 3 of the Act of May 28, 1913, P. L. 369,
5 Purd. 5886, and Section 4 of the Act of May 28, 1913, P. L. 373, 5 Purd.
5885, the four weeks' limitation in the case of ancillary letters being de-
rived from the latter act. The provision as to determining the date when
the presumption arose is new.

370. CONFIRMATION OR VACATION OF DECREE.

(0) If, within said period, evidence satisfactory to the orphans'
court of the continuance in life of the presumed decedent shall be
presented, said decree shall be vacated ; but if such evidence shall
not be forthcoming, such decree shall be confirmed absolutely, and
it shall be the duty of the court to order the register of wills to
issue letters of administration to the person thereto entitled, or to
receive for probate the last will and testament of such presumed
decedent and, if duly proved, to admit the same to probate and
issue letters testamentary thereunder; and the said letters, until
revoked, and all acts done in pursuance thereof and in reliance
thereupon, shall be as valid as if the presumed decedent were
really dead.

NOTE. This is a combination of Section 4 of the Act of June 24, 1885,
P. L. 155, I Purd. 1076, Section 4 of the Act of May 28, 1913, P. L. 369, 5
Purd. 5886, and Section 5 of the Act of May 28, 1913, P. L. 373, 5 Purd.
5885.

The word "vacated" has been substituted for "annulled" in the third
line; and the provision as to probate is new.



FIDUCIARIES ACT SECTION 6 (/), (g) 283

371. EFFECT AS TO REAL ESTATE; TITLE OF PUR-

CHASER; BOND BY PARTY SELLING OR
CONVEYING.

(/) Whenever the said court shall enter a decree that the pre-
sumption of death of any person has been established, and such
decree shall be confirmed absolutely, the real estate of the pre-
sumed decedent shall pass and devolve as in the case of actual
death, and the persons entitled by will or under the intestate
laws may enter and take possession. In case the presumption of
death is thereafter rebutted by adequate proof that the presumed
decedent is in fact alive, and said decree is vacated, said real estate
shall revert to him as fully as though such decree had never been
entered, subject, however, to payment of the costs and expenses
of the proceedings and advertisement aforesaid. Such decree,
when confirmed absolutely, may be recorded in the office of the
recorder of deeds of the proper county 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 names
of the persons taking the real estate, and, if so recorded, and the
persons taking the real estate sell or mortgage the same, the pur-
chaser or mortgagee shall take a good title, free and discharged
of any interest or claim of the presumed decedent; but the per-
sons taking such real estate shall not sell, convey or mortgage the
same or any part thereof without first giving bond, in an amount
to be fixed by the orphans' court and with sureties to be approved
by said court, conditioned to account for and pay over to the
presumed decedent, in case he is actually alive, the value of the
real estate sold or conveyed, or, in case of the making of a mort-
gage, to pay the amount of the mortgage and interest thereon, or,
in case of a foreclosure of such mortgage, to account for and pay
over the value of the real estate mortgage. When the presumed
decedent shall have been absent and unheard of for twenty-one
years, such bond shall be taken without sureties.

NOTE. This is Section 5 of the Act of May 28, 1913, P. L. 369, 5 Purd.
5886, with some changes in phraseology, and altered so as to require bond
for the value of the property on any conveyance, instead of merely for the
proceeds of sale, and to cover the case of a mortgage of the property.

372. ADMINISTRATION AND DISTRIBUTION OF

ESTATE.

(g) The executor or administrator to whom letters have been
issued upon the estate of a presumed decedent, as aforesaid, shall



284 FIDUCIARIES ACT SECTION 6 (g), (A)

administer the estate in the same manner and with the same effect
as the same would be administered under existing laws of this
commonwealth if the presumed decedent were in fact dead; and
the orphans' court, at the audit of the account of an ancillary ad-
ministrator of a presumed decedent, shall decree the balance, if
any, shown thereby, to the expense of administration and the debts
of the presumed decedent, due to residents of this commonwealth,
and the overplus, if any, to the executor or administrator of said
presumed decedent in the foreign jurisdiction, for the purpose of
administration and distribution.

NOTE. This is Section 6 of the Act of May 28, 1913, P. L. 373, 5 Purd.
5885, with the insertion of the words "executor or" and the omission of the
word "ancillary" in the first line, thus making the provisions of the first
six lines apply to original as well as ancillary administration. The fol-
lowing parts are confined to ancillary administration.

The provisos to the section read as follows:

Provided, however, That before any distribution of any such estate, the
alleged creditors, residing in this commonwealth, shall respectively give
sufficient security to be approved by the said court, in such sum and form
as the court shall direct, with condition that, if the presumed decedent
shall in fact be alive, they will respectively refund the amount received by
each, with interest thereon, if they shall not be legally entitled to retain
the same: Provided further, That before said court shall decree the pay-
ment of any overplus to the foreign executor or administrator as afore-
said, said court shall be satisfied that the presumption of death of the pre-
sumed decedent has been established in said foreign jurisdiction according
to law."

(NoTE. The above appears to be a resume of the act and is not an
exact quotation. EDITOR).

The repeal of these provisos is recommended: the first because there
seems to be no sufficient reason to require creditors who have been awarded
payment of their just claims to refund the amounts because the presumed
decedent proves to be alive; the second because, before directing the
isssuance of ancillary letters, the court has itself inquired into the estab-
lishment of the presumption of death.

373. REFUNDING BONDS; APPOINTMENT OF
TRUSTEE ON REFUSAL, NEGLECT, OR INA-
BILITY TO GIVE BOND.



Before any distribution of the proceeds of the estate of
such presumed decedent, the persons, other than creditors, en-
titled to receive the same shall respectively give sufficient real or
personal security, to be approved by the orphans' court having
jurisdiction, in such sum and form as the court shall direct, with
condition that if the said presumed decedent shall in fact be at



FIDUCIARIES ACT SECTION 6 (*), (i) 285

the time alive, they will respectively refund the amounts received
by each on demand, with interest thereon. If any person or per-
sons entitled to receive the same shall refuse or neglect or be
unable to enter such security, the orphans' court may, upon pe-
tition of any person interested, and upon due notice to all persons
interested, so far as such notice can reasonably be given, appoint
a suitable person or corporation as trustee to receive and hold the
share of the distributee refusing or neglecting or being unable to
enter security as aforesaid until the further order of the court,
such trustee not to be an insurer of the trust fund, and to be
liable to the person or persons interested therein only for such
care, prudence and diligence in the execution of the trust as other
trustees are liable for. If the said court shall be satisfied, from
the evidence adduced at the hearing to ascertain whether the pre-
sumption of death is established, or from the report of the master,
that there is no likelihood of the presumed decedent's being still
alive, then the said court may, at its discretion, accept refunding
bonds from the distributees of the presumed decedent's estate
without requiring sureties thereon.

NOTE. This is the second proviso to Section 5 of the Act of June 24,
1885, i Purd. 1076, as amended by the Act of June n, 1915, P. L. 945, 5
Purd. 5887, now changed by excluding creditors from the requirement of
refunding bonds, and by conforming the provisions where no bond is given
to those of Section 23 of this draft relating to security by legatees for life,
founded on the Act of May 17, 1871, P. L,. 269.

The present clause also covers Section 7 of the Act of May 28, 1913,
P- L. 373, 5 Purd. 5886.

Under the Act of June n, 1915 (P. L. 945), amending the Absentee Act
of 1885, which amendment was incorporated in the Fiduciaries Act of
1917, it is within the discretion of the orphans' court when satisfied from
evidence adduced at an audit that there is no likelihood of a supposed ab-
sentee decedent being alive, to decree distribution on refunding bonds,
without security. Howe's Estate, 49 Pa. C. C. 261, 68 P. L. J., 301, 29
Dist. 436, 34 York 7.

374. VACATION OF DECREE; EFFECT AS TO ACTS
DONE.

(i) The orphans' court may revoke the said letters and vacate
the decree that the presumption of death has been established, at
any time, on due and satisfactory proof that the presumed de-
cedent is in fact alive. After such revocation all the powers of
the executor or administrator shall cease, but all receipts or dis-



286 FIDUCIARIES ACT SECTION 6 (), (/)

bursements of assets, and other acts previously done by him,
shall remain as valid as if the said letters were unrevoked. The
executor or administrator shall settle an account of his adminis-
tration down to the time of such revocation, and shall transfer all
assets, remaining in his hands, to the person as whose executor
or administrator he has acted, or to his duly authorized agent or
attorney. Nothing in this section contained shall validate the
title of any person to any money or property received as surviving
spouse, next of kin, heir, legatee or devisee of such presumed
decedent, but the same may be recovered from such person, in all
cases in which such recovery would be had, if this act had not
been passed.

NOTE. This is the first part of Section 5 of the Act of June 24, 1885,
I Purd. 1076, as amended by the Act of June u, 1915, P. L. 945, 5 Purd.
5887, with slight changes in wording, the inclusion of executors as well as
administrators, and the insertion of the provision for vacation of the de-
cree that the presumption of death has been established.

375. INTERVENTION IN ACTIONS BY PERSON ER-
RONEOUSLY SUPPOSED TO BE DEAD;
OPENING OF JUDGMENTS.

(/) After revocation of the letters and vacation of the decree
that the presumption of death has been established, the person
erroneously presumed to be dead may, on suggestion filed of
record of the proper facts, be substituted as plaintiff or petitioner
in all actions or proceedings, at law, in equity, or in any orphans'
court, brought by the executor or administrator, whether prose-
cuted to judgment or decree or otherwise. He may, in all actions
or proceedings previously brought against the executor or admin-
istrator, be substituted as defendant or respondent, on proper sug-
gestion filed by himself, or by proper service of writ or other
process, but shall not be compelled to go to trial in less than three
months from the time of such suggestion filed or process served.
Judgments or decrees recovered against the executor or adminis-
trator before revocation and vacation, as aforesaid, of the letters
and decree, may be opened on application by the presumed de-
cedent, made within three months from the said revocation and
supported by affidavit, denying specifically, on the knowledge of
the affiant, the cause of action, or specifically alleging the exist-
ence of facts which would be a valid defense; but if, within the
said three months, such application shall not be made, or being
made, the facts exhibited shall be adjudged an insufficient defense,



FIDUCIARIES ACT SECTION 6 (/), (fc) 287

the judgment or decree shall be conclusive to all intents, saving
the defendant's right to have it reviewed, as in other cases, on ap-
peal. Notwithstanding the substitution of the presumed decedent
as defendant in any judgment or decree, as aforesaid, it shall
continue as a lien upon his real estate in the county for the period
of five years from the date of its entry, as other judgments, unless
and until it shall be set aside by the court below, or reversed in
the proper appellate court.

NOTE. This is Section 6 of the Act of June 24, 1885, P. L. 155, i Purd.
1076, altered by inserting the references to vacation of the decree, by sub-
stituting the words "on appeal" for "by certiorari or writ of error," by sub-
stituting "the proper appellate court" for "the supreme court" in the last
line, and by redrafting the last sentence, which, in the Act of 1885, pro-
vides that after substitution the judgment shall "become a lien" and shall
so continue for five years, without stating when the five years shall begin.

376. PROCEDURE WHERE WILL, OR LATER WILL,
IS PRODUCED AFTER LETTERS HAVE BEEN
GRANTED.

(k) Whenever, hereafter, letters testamentary or of adminis-
tration shall be issued upon the estate of any person, presumed
to be dead, on account of absence of seven years or more from
the place of his last domicile, in accordance with the foregoing
provisions of this section, the person having custody of any will
which may have been left by such presumed decedent, in case
letters of administration have been issued, or of any later will,
in case letters testamentary have been issued, or any creditor or
any person interested in the estate, may file a petition in the or-
phans' court in which the proceedings to establish the death by
presumption have been held, as aforesaid, setting forth the facts
of the case, a copy of said will or later will, or an averment that
such will exists, and the names of all persons interested in the
estate of the presumed decedent. Upon the filing of such petition,
said court, after due notice to all parties in interest, may enter
an order directing the register of wills to receive proof in support
of the averments of said petition and, if established, to admit
said will or later will to probate and, if an executor be named in
said will, to revoke said letters of administration, or, in case an
earlier will shall have been admitted to probate, to set aside such
probate and revoke the letters testamentary issued thereunder.

NOTE. This is Section i of the Act of April 14, 1905, P. L. 153, 5 Purd.
5884, altered by providing for the filing of a petition in the orphans' court,



288 FIDUCIARIES ACT SECTION 6 (fe), (/), (m)

instead of proceeding directly before the register, and by inserting the
words "or an averment that such will exists," to cover the case of refusal
to produce the will or its unlawful destruction, and also altered so as to
include the case of a later will.

377. CITATION BY REGISTER TO PARTIES INTER-

ESTED.

(/) Thereupon the register of wills shall issue a citation to the
person to whom letters of administration or letters testamentary
have been issued, as aforesaid, and to all persons interested in the
estate of the presumed decedent, to appear upon a day fixed, and
to show cause why the said alleged will or later will should not
be admitted to probate.

NOTE. This is Section 2 of the Act of April 14, 1905, P. L. 153, 5 Purd.
5884, changed to conform to the changes made in the last preceding clause.

378. PROBATE OF WILL, OR LATER WILL; REVO-

CATION OF LETTERS AND GRANTING NEW
LETTERS.

(m) Upon the return of the citation, if the register of wills
shall be satisfied from all the evidence that may be adduced that
the proposed will was, in fact, the last will and testament made by
the presumed decedent before his departure or disappearance
from his residence, the said will shall be admitted to probate as if
the testator were in fact dead. If, upon such probate, it appears
that an executor is named in the will, the letters of administra-
tion previously granted shall be revoked, and letters testamentary
shall be issued to said executor, in the same manner and form as
if the testator were in fact dead, but if no executor shall be
named in such will, then a certified copy of said will shall be
attached to the letters of administration theretofore issued, or to
a certified copy of such letters. Thereafter the executor or ad-
ministrator shall execute the said will according to its terms, and
all property of the decedent shall be distributed and pass, as
provided by said will, to the several legatees and devisees named
therein. In case an earlier will shall have been admitted to probate,
the letters testamentary issued thereunder shall be revoked and
letters shall be issued under the said last will, or if no executor
shall be named in said last will, then letters of administration with
the will annexed shall be issued to the person or persons entitled
thereto.



FIDUCIARIES ACT SECTIONS 6 (w), (n)-7 (o) 289

NOTE. This is Section 3 of the Act of April 14, 1905, as amended by
the Act of June I, 1915, P. L. 689, 5 Purd. 5884, further altered by bringing
the last proviso into the body of the section, and by providing for the case
of a later will.

The remaining proviso reads: "Provided, That nothing herein shall
prevent the orphans' court from revoking the said letters, * * * upon
satisfactory proof that the supposed decedent is in fact alive; after which
revocation the powers of the (executor or) administrator, and the rights
of the legatees and devisees under said will, shall cease; and all receipts
and disbursements of assets, and other acts previously done by them shall
remain as valid as if the said letters were unrevoked; and providing that
legatees and devisees may be called upon, at any time, by the supposed
decedent to account for any property which they may have received, re-
maining in their hands, exactly as * * * the (executor or) adminis-
trator may be called upon to account for such property or assets."

It is recommended that this be omitted as unnecessary, its provisions
being covered by other clauses of this section.

379. PAYMENT OF COSTS.

(n) The costs attending the issuance or revocation of letters
shall be paid out of the estate of the presumed decedent; and
costs arising upon an application for letters which shall not be
granted shall be paid by the applicant.

NOTE. This Section 7 of the Act of June 24, 1885, P. L. i55, I Purd.
1077.

380. OATHS OF EXECUTORS AND ADMINISTRA-

TORS, FORM.

SECTION 7. (a) Before any register shall issue letters of admin-
istration, letters testamentary, or of administration with the will
annexed, he shall administer an oath or affirmation to the person
or persons receiving the same, in the following form, viz : You
do swear (or affirm) that as executor of the last will and testa-
ment (or as administrator of the estate) of A. B., deceased, (as
the case may be), you will well and truly administer the goods and
chattels, rights and credits of said deceased, according to law;
and also will diligently and faithfully regard and well and truly
comply with the provisions of the law relating to collateral inherit-
ances.

NOTE. This is Section 14 of the Act of March 15, 1832, i Purd. 1075,
which, as the Commissioners remarked, contained in the form of oath the



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 30 of 71)