Raymond Moore Remick.

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

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clause as to collateral inheritance required by Section 5 of the Act of
April 7, 1826, P. L. 227.

See form 2.
19



290 FIDUCIARIES ACT SECTIONS 7 (o), (&)- (<0

In a dispute over the probate of a will, the grant of letters of adminis-
tration pendente lite by the register of wills was held void where on peti-
tion 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 gen-
erally, including letters pendente lite under special circumstances and the
proceeding 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 by the very terms of the law
the 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, Hawkin's Orphans' Court
Practice, Section 28, the next steps are the oath, and the bond, 'and there-
upon issue letters of administration.'

"The register's appointment as of October I9th was not a grant of letters ;
it had no status as such by law or in practice." Henry's EsL, 30 Dist.
945, 69 P. L. J. 737; 35 York 122.

381. OATH BY OFFICER OF CORPORATION.

(fc) In all cases where a corporation is or shall be charged with
the execution of any trust, the president, vice-president, trust
officer, secretary, treasurer or actuary of such corporation, shall
make the oath or affirmation directed to be taken by private per-
sons in such cases.

NOTE. This is Section I of the Act of February 16, 1877, P- L- 3, 4
Purd. 4923.

See forms 2, n, 46.

382. BONDS OF EXECUTORS AND ADMINISTRA-

TORS, FORM OF BOND OF ADMINISTRA-
TOR.

SECTION 8. (a) It shall be the duty of every register upon his
granting any letters of administration, domiciliary or ancillary,



FIDUCIARIES ACT SECTION 8 (a) 291

of the goods and chattels of any person dying intestate, to take
a bond or bonds, from the person or persons receiving such let-
ters, with two or more sufficient individual sureties, or sufficient
corporate security, or the register may, in his discretion, permit
any corporation to which letters are granted to give its own bond
without surety. In fixing the amount of any bond, respect shall
be had to the value of the estate; and all bonds shall be in the
name of the commonwealth, with a condition in the following
form, viz. : The condition of this obligation is, that if the above-
bounden A. B., administrator of all and singular the goods, chat-
tels and credits of C. D., deceased, do make, or cause to be made,
a true and perfect inventory of all and singular the goods, chattels
and credits of the said deceased, which have come or shall come
to the hands, possession or knowledge of him the said A. B., or
into the hands and possession of any other person or persons, for
him, and the same so made, do exhibit or cause to be exhibited into
the register's office, in the county of , within

thirty days from the date hereof, and the same goods, chattels and
credits, and all other the goods, chattels and credits of the said
deceased, at the time of his death, which at any time after shall
come to the hands and possession of the said A. B., or into the
hands and possession of any other person or persons for him, do
well and truly administer according to law, and further do make or
cause to be made, a just and true account of his said administra-
tion, at the expiration of six months from the date hereof, or
when thereunto required by the orphans' court, and all the rest
and residue of the said goods, chattels and credits, which shall be
found remaining upon the said administrator's account, the same
being first examined and allowed by the orphans' court of the
county having jurisdiction, shall deliver and pay unto such per-
son or persons as the said orphans' court, by their decree or
sentence pursuant to law, shall limit and appoint, and shall well
and truly comply with the laws of this commonwealth relating to
collateral inheritances, and if it shall hereafter appear that any
last will and testament was made by the said deceased, and the
same shall be proved according to law, if the said A. B., being
thereunto required, do surrender the said letters of administra-
tion into the register's office aforesaid, then this obligation to be
void, otherwise to remain in full force : Provided, That in every
case of special administration, the form of the foregoing con-
dition shall be modified so as to suit the circumstances of such
case.



292 FIDUCIARIES ACT SECTION 8 (a)

NOTE. This is Section 24 of the Act of March 15, 1832, P. L. 139, i
Purd. 1077, altered by inserting "domiciliary or ancillary" in the second
line, by providing for two individual sureties or corporate security or the
bond, without surety, of a corporation to which letters are granted, by
changing "one year" to "six months" as the period for filing the account,
and substituting "at the expiration of" for "within," and by substituting
"required by the orphans' court" for "legally required."

Section 24 of the Act of 1832 corresponded to Section 23 of the Com-
missioners draft. This was substantially the same as Section i of the
Act of April 19, 1794, 3 Sm. L. 143, with some verbal alterations and the
addition of a clause as to collateral inheritances, and the proviso as to
special administration. The draft fixed the time for filing the inventory at
forty days, while the act made it thirty days. The same difference exists
between Section 16 of the Act of 1832 and the draft.

See forms n, 14, 41, 43.

See Cooper's Est, 29 Dist. 230, 67 R. L. J. 17, 20 Lack. 46, 36 Lane. 266.
32 York 144.

In a dispute over the probate of a will, the grant or letters of adminis-
tration pendente lite by the register of wills was held void where on peti-
tion 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 gen-
erally, including letters pendente lite under special circumstances and the
proceeding is well defined.

"Section 4 of the Fiduciaries Act 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 by the very terms of the law
the 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, Hawkin's Orphans' Court
Practice, Section 28, the next steps are the oath, and the bond, 'and there-
upon issue letters of administration.'

"The register's appointment as of October I9th, was not a grant of let-
ters ; it had no status as such by law or in practice." Henry's Est., 30
Dist. 945, 69 P. L. J. 737; 35 York 122.



FIDUCIARIES ACT SECTION 8 (6), (c) 293

383. BOND OF ADMINISTRATOR C. T. A.

(&) It shall be the duty of the register of wills, in granting
letters of administration with the will annexed, to take a bond
as prescribed in the foregoing clause, that shall include adequate
security for the faithful accounting for the proceeds of any sales
of real estate the administrator may make under such will ; and
the sureties taken shall be liable therefor, as well as for any
personal effects, to come into the hands of the administrator, who
shall settle his account thereof before the orphans' court.

NOTE. This is founded on Section 8 of the Act of April 22, 1856, P. L.
533, i Purd. 1080. The proviso is omitted; "a bond as prescribed in the
foregoing clause, that shall include," is inserted ; "shall" is substituted for
"may" in the provision as to liability ; and "register and" is omitted before
"orphans' court" in the last line.

See forms 11, 14, 41, 44.

In holding, on the authority of Cornell v. Green, 10 S. & R. 14, that
"An administrator with the will annexed is, for every purpose connected
with the execution of the will, put exactly in the place of the executor
who preceded him ; and clothed with all his rights and invested with all
his capacities of collecting debts, maintaining actions, and selling real
estate pursuant to the will." The court, citing the above section, said :
"When the administrator with a will annexed was appointed in this case,
he found an unexecuted contract for the sale of the real estate in question.
He qualified by giving his bond. He has the same powers and duties that
the surviving executor who made this contract had. The bond, under the
terms of the statute, covers the sales of real estate made under the will.
We, therefore, are of opinion that the executor has the right to carry out
this contract and can give a good and legal title to the defendant." Kiefer's
Adm'r. v. Jones, 50 Pa. C. C. 269 (s. c. sub nom. Daniel v. Jones), 30
Dist. 633-

384. FORM OF BOND OF NON-RESIDENT EXECU-

TOR.

(c) Before the register shall issue letters testamentary to any
executor, not being an inhabitant of this commonwealth, he shall
take from him a bond, with two or more sufficient individual
sureties, being inhabitants of this commonwealth, or with suf-
ficient corporate security, or the register may, in his discretion,
permit any corporation to which such letters are granted to give
its own bond without surety. In fixing the amount of any bond,
respect shall be had to the value of the estate to be administered ;
and all bonds shall be in the name of the commonwealth, with the



294



FIDUCIARIES ACT SECTION 8 (c), (<0



following condition, viz. : The condition of this obligation is, that
the said A. B., executor of the last will and testament of C. D.
deceased shall make a true and perfect inventory of all and sin-
gular the goods, chattels and credits of the said deceased, being
within this commonwealth, which have come or shall come to
his hands, possession or knowledge, or into the hands and pos-
session of any other person for him, and the same so made do
exhibit into the office of the register of the county of
within thirty days from the date hereof, and the same goods do
well and truly administer, according to law, and make a just and
true account of all his actings and doings therein, at the expiration
of six months from the date hereof, or when thereunto lawfully
required, and shall faithfully account for the proceeds of any
sales of real estate he may make under such will, and shall well
and truly comply with the laws of this commonwealth relating to
collateral inheritances and in all other respects with the laws of
this commonwealth relating to his duty as executor, then this
obligation to be void, otherwise to remain in full force.

NOTE. This is Section 16 of the Act of March 15, 1832, P. L. 139, I
Purd. 1077, changing the period for filing an account from one year to six
months, in accordance with the change made in the other parts of the
present draft, changing "in" to "at the expiration of," and inserting a
provision as to corporations giving their own bonds, and a provision to
cover sales of real estate corresponding to clause (&).

Section 16 of the Act of 1832 corresponded to Section 15 of the Com-
missioners' Draft, and was new in the Act of 1832. The Commissioners re-
marked that the Act of April 3, 1829, P. L. 122, authorizing proceedings
to vacate letters testamentary where the executor had removed from the
state and ceased to have a known residence therein for a certain period,
perhaps prohibited the granting of letters testamentary to non-residents.

See form 45.

385. GRANT OF LETTERS WITHOUT BOND; LIA-
BILITY OF REGISTER OF WILLS.

(d) If any register shall grant letters testamentary to any
person not being an inhabitant of this commonwealth, or shall
grant any letters of administration to any person or persons
whatsoever, without having in either case taken a bond in the
manner hereinbefore prescribed, such letters shall be void, and
every person acting under them shalf be deemed, and may be
sued, and in all respects treated as an executor of his own wrong ;
and the register granting the same, and his sureties, shall be liable



FIDUCIARIES ACT SECTION 8 (</), (*) 295

to pay all damages which shall accrue to any person by reason
thereof.

NOTE. This is Section 27 of the Act of 1832, i Purd. 1078, which cor-
responded to Section 34 of the Commissioners' Draft. That section was
principally derived from Section 2 of the Act of March 27, 1713, I Sm. L.
81, and contained nothing new except the extension of the provisions to
letters testamentary granted to non-residents.

The only change now made is to omit "with sureties," in line 5, so as
to cover cases of a corporation giving its own bond.

In a dispute over the probate of a will, the grant of letters of adminis-
tration pendente lite by the register of wills was held void where on peti-
tion 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 administra-
tion can issue.

"Jurisdiction is in the register to grant letters of administration gen-
erally, including letters pendente lite under special circumstances and the
proceeding 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 by the very terms of the law
the 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, Hawkin's Orphans' Court
Practice, Section 28, the next steps are the oath, and the bond, 'and there-
upon issue letters of administration.'

"The register's appointment as of October I9th, 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. 737 ; 35 York 122.

386. BOND OF EXECUTOR OR ADMINISTRATOR OF
DECEASED FIDUCIARY.

(0) In any case where application is made for letters testa-
mentary or of administration on the estate of a decedent who was
at the time of his death a fiduciary, it shall be within the discre-
tion of the register of wills to whom such application is made to



296 FIDUCIARIES ACT SECTION 8 (e), (/)

require the person or corporation to whom such letters are issued
to enter, in addition to any other bond required by this act, a
bond in a sufficient amount, with sureties as aforesaid, or, in case
of a corporation, its own bond, with or without sureties, con-
ditioned for the proper application of the property held by such
decedent as fiduciary and coming into the hands and possession
of the person or corporation to whom such letters are issued.

NOTE. This is a new clause, introduced to cover the case where moneys
or property held by a decedent as executor, administrator, guardian or
trustee, come into the possession of his executor or administrator pending
the appointment of a successor to the decedent in the trust.

387. EXCEPTIONS TO BONDS.

(/) All bonds taken by any register, in pursuance of this act,
from any executor or administrator, may be excepted to before
such register by any person interested, in respect of the sufficiency
of the sureties therein, or the amount of the bond, or for any
other cause. Whenever any such exception shall be so made to
any such bond, the register shall give notice thereof to the execu-
tor or administrator and require him to appear before him in a
reasonable time, not exceeding ten days, and show cause against
the allowance of such exception. If upon the hearing of the ob-
jections of all persons interested, and of such executor or admin-
istrator, or of such of them as shall appear, such register shall see
cause, he shall order such executor or administrator to find ad-
ditional sureties, or to give security in a larger amount, or make
such other order as the case may require. If such executor or
administrator shall refuse to comply with such order, or if he
shall neglect so to do during the space of thirty days after the
making thereof, the register shall revoke the letters granted to
him, and grant other letters in such form as the case shall re-
quire, to the person by law next entitled thereto, such person giv-
ing to such register the security by him ordered as aforesaid.
No such exception shall be so made, or proceedings thereunto be
had before the register, after three months elapsed from the time
of the filing of a full and perfect inventory by such executor or
administrator of the whole of the estate in question.

NOTE. This is Section 28 of the Act of 1832, i Purd. 1078, which cor-
responded to Section 35 of the Commissioners' Draft That section was
new in the Act of 1832 and was intended as a substitute for so much of
Section 2 of the Act of March 27, 1713, i Sm. L. 81, as related to the
taking of insufficient sureties, and to supply means by which the register



FIDUCIARIES ACT SECTIONS 8 (/)-p (a), (6) 297

might revise his own proceedings and correct inadvertent and perhaps
unavoidable errors.

The present draft changes "one year" in the last sentence to "three
months" in accordance with the change in time for filing the account. It
also permits exceptions "for any other cause."

Section 2 of the Act of April 4, 1797, 3 Sm. L. 296, 2 Purd. 2296, pro-
vides : "In all cases where a return of nulla bona shall have been made by
the sheriff of the proper county to an execution against any such executors
or administrators, their sureties shall, on notice thereof, unless they can
show goods or chattels, lands or tenements, in some other county, which
may be seized and taken in execution by a testatum fieri facias, to satisfy
the same, be liable to pay the amount of the debt and costs therein, in
actions brought against them on the said bonds, and such further proof
or evidence in support thereof, as by law would have entitled the suitor or
suitors to recover his, her or their demand of the said executors or ad-
ministrators, de bonis propriis : Provided, Such suits shall be instituted
against the sureties, within seven years after the date of the respective
bonds; and the whole amount of the sums of money to be recovered there-
upon shall not exceed the penalties of the said bonds respectively."

This was held, in Com. v. Patterson, 8 Watts 515, to be limited to cases
of additional security given by order of court.

The appeal of this section of the Act of 1797, as unnecessary, is recom-
mended.

388. BONDS OF FIDUCIARIES IN GENERAL, SUITS

ON BONDS.

SECTION 9. (a) All bonds given or hereafter to be given by
fiduciaries shall be held in trust for the use of the commonwealth,
and such person or persons as may be interested therein; and
suits may be brought thereon, from time to time, by all persons
interested therein, as provided in the sixth section of the act en-
titled, "An act relating to bonds, with penalties and official bonds,"
approved the I4th day of June, 1836.

NOTE. This is Section 44 of the Act of March 15, 1832, i Purd. 1079,
which did not correspond to anything in the Commissioners' Draft, altered
by substituting for the reference there made to Section 4 of the Act of
March 28, 1803, a reference to Section 6 of the Act of June 14, 1836, P. I/.
639, I Purd. 472, and by substituting "fiduciaries" for "executors, adminis-
trators or guardians."

See forms, 22, 24.

389. REDUCTION OF BONDS.

(&) Whenever any fiduciary has heretofore given, or shall
hereafter give, any bond conditioned for the due performance of
his duties, or for the accounting for money in his hands, such



298 FIDUCIARIES ACT SECTIONS 9 (&), (O-io

fiduciary or any creditor, beneficiary, or other party in interest,
may present a petition to the orphans' court of the proper county,
alleging that the amount of such bond is greater than the exigen-
cies of said trust require and setting forth the facts and circum-
stances upon which such allegation is based, and praying 'that
such bond be reduced to an amount which shall be stated in the
petition. At the hearing of said petition, after such notice as the
court may require, if any, the court may, at its discretion, reduce
the bond to such an amount as it may deem proper and necessary
to give adequate protection to all parties concerned, but not to an
amount lower than that specified in said petition. The costs of
said proceeding shall, at the discretion of the court, be paid out
of the estate to protect which said bond was given, or by the
petitioner.

NOTE. This is a combination of Sections 2, 3 and 4 of the Act of May
3, 1915, P. L. 218, 6 Purd. 7038, changed so as to provide that the petition
shall "allege" that the bond is too large, instead of "setting forth that in
his opinion" this is so.

See form 75.

390. EXPENSE OF OBTAINING BOND OF CORPORA-

TION.

(c) Any fiduciary, required by law or by the order of any
orphans' court, to give a bond as such, may include as a part of
the lawful expense of executing his trust such reasonable sum
paid to a company, authorized under the laws of this state so to
do, for becoming his surety on such bond as may be allowed by
the court in which he is required to account, not exceeding, how-
ever, one per centum per annum on the amount of such bond.

NOTE. This is Section i of the Act of June 24, 1895, P. L. 248, 4 Purd.
4914, altered by substituting "fiduciary" for "receiver, assignee, guardian,
committee, trustee, executor or administrator," and by inserting the word
"orphans."

Section 2 of the Act of 1895 reads : "This act shall take effect immedi-
ately; and all acts and parts of acts inconsistent herewith are hereby re-
pealed."

The Act of 1895 should be repealed only so far as it relates to fiduciaries
within the scope of the present act.

391. ADVERTISEMENT OF GRANT OF LETTERS.

SECTION 10. The executors or administrators of every decedent



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 31 of 71)