Raymond Moore Remick.

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

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shall, immediately after the granting of letters testamentary or of
administration to them, cause notice thereof to be given in one



FIDUCIARIES ACT SECTION 10 299

newspaper, published at or near the place where such decedent
resided, once a week, and in the legal periodical, if any, designated
by rule of court for the publication of legal notices, 1 during at least
six successive weeks, together with their names and places of res-
idence, and in every such notice they shall request all persons
having claims or demands against the estate of the said decedent
to make known the same, and all persons indebted to the said
decedent to make payment, to them without delay.

NOTE. This is Section i of the Act of February 24. 1834, P. L. 73, i
Purd. 1098, with the addition of the provision as to notice to debtors.

Section 14 of the Act of April 19, 1794, 3 Sm. L. 143, provided: "That
no creditor, who shall neglect to exhibit his account to the executors or
administrators within twelve months after public notice given in one or
more of the public newspapers of this state, and continued in such public
newspapers for four weeks, shall be entitled to demand or receive any
dividend of such remaining assets." This is superseded by Section 49 (d)
of the present draft. (See 555 infra.)

See form 15.

x The portion in italics did not appear in the Commissioners' Draft.

An account will not be audited until six months after advertisement of
grant of letters.

In dismissing exceptions to this ruling the court in bane per GEST, J., held :

"Letters of administration were granted on Nov. 10, 1917, and the ac-
count was filed on Sept. 5, 1918. The grant of letters was not advertised
as required by the Fiduciaries Act of June 7, 1917, Section 10, P. L. 447,
until Sept. 6, 1918, and the advertisement expired on Oct. nth, shortly be-
fore the account was called for audit.

The provisions of section 10 of the Fiduciaries Act are not new, having
been previously enacted in section I of the Act of Feb. 24, 1834, P. L. 70,
Purd. 1098, and the commissioners of 1830, in their second report, ob-
served as to this section that it "enlarged and supplied a provision in the
Act of April 19, 1794, Section 14, 3 Sm. Laws, 143, relative to notice by
executors and administrators to creditors of the decedent. It is directory
to executors and administrators, and purports that immediate public
notice shall in all cases be given of the granting of administration. &c.
We think that it is due to creditors in all cases to require it, and it is to
the interest of the heirs and kindred that it should be done without un-
necessary delay."

Similar provisions are found in the statutes of nearly if not quite all
of the states, and, as it is said in Woerner's American Law of Adminis-
tration, Section 385, the omission to publish the notice to creditors is at-
tended with serious consequences.

This requirement of the Fiduciaries Act is, therefore, no innovation,
for in substantially its present form it had been in the statute book for
eighty-three years. It is not necessary to vindicate its wisdom, nor is it
necessary to decide the precise meaning of the word "immediately," as



300 FIDUCIARIES ACT SECTIONS 10-11 (a) ,

used in the act, for in this case the advertisement was not published for
nearly ten months. When a man dies and his estate comes into the course
of administration, his creditors must be ascertained, and the only practi-
cable method is by advertisement in the newspapers. Creditors have a
right to this notice, and, inasmuch as the act requires immediate notice to
be given by advertisement, and as subsequent sections require the account
to be filed at the expiration of six months (formerly one year) after the
grant of letters, creditors have also a right to assume that the account
need not be looked for until six months have expired from the first in-
sertion of the advertisement. When, therefore, the advertisement is de-
layed, counsel should be careful not to file the account until the expiration
of six months from the date of the first insertion of the advertisement.

We have said that the Fiduciaries Act has not introduced any innova-
tion in the law in this respect. It has, however, shortened the period al-
lowed for administration from one year to six months, and, in view of
this change, this court by its recent rule (II, Sec. 12) has required the ac-
countant to submit to the auditing judge at the audit proof of publication
of notice, in order that it may appear that creditors have had all the pro-
tection to which they are entitled by law. It appears that many members
of the bar, including some of long practice and large experience, have
omitted to advertise, but it is clear that the provisions of the statute can-
not be disregarded, nor is it sufficient compliance with the law to postpone
the advertisement of the grant of letters until the filing of the account or
shortly before it. We are of opinion, therefore, that the auditing judge in
this case was justified in withholding confirmation of the account. If the
administratrix is confident that there remain no unpaid debts of the de-
cedent, she may make distribution at her own risk, but if she desires the
protection of a decree of the court under section 49 of the Fiduciaries Act,
the provisions of the law must be complied with."

Cotter's Est., 47 Pa. C. C. 76, 27 Dist. 1023, 67 P. L. J. 19, and see Hay-
den's Est, 28 Dist. 39; Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20
Lack. 46, 36 Lane. 266, 32 York 144.

392. INVENTORY AND APPRAISEMENT, TO BE
FILED IN THIRTY DAYS.

SECTION n. (a) It shall be the duty of the said executors or ad-
ministrators to make a true and perfect inventory of all the goods,
chattels and credits of the deceased, as far as they may know or
can ascertain them, and file the same in the register's office within
thirty days from the time of administration granted: Provided,
That in the case of a will of a decedent, not resident, at the time
of his decease, within this commonwealth, proved in another state
or in a foreign country, whereof letters testamentary or of ad-
ministration with the will annexed may be granted in this state,
or in a case of ancillary administration of the estate of a non-
resident intestate, the inventory herein mentioned shall be of the



FIDUCIARIES ACT SECTION 11 (a), (6) 301

goods, chattels and credits of the deceased within this common-
wealth.

NOTE. This is Section 15 of the Act of March 15, 1832, P. L. 135, I
Purd. 1089, with the insertion of the provision as to ancillary administra-
tion of an intestate's estate. The provision as to the filing of the account
has been omitted here and inserted in Section 46 (a). (See 539 infra.)

See forms 16, 52.

In dismissing a petition to restrain a proposed sale of decedent's effects
including his alleged interest in a partnership which formed the major
portion of the inventory the court said :

"Whether, therefore, the petition is construed to be an application made
by a partner's individual estate or for a partnership estate, the applicant
is without legal standing to maintain this proceeding in this Court; and,
accordingly, this Court cannot recognize the complaints of the petitioner
as to the form or substance of the said Inventory and Appraisement (see
Fiduciaries Act of 1917, P. L. 447, clause (e), (this should apparently be
clause a), Section n), nor its standing to otherwise intermeddle in or
interfere with,, the administration of the said Walter J. Brown estate;
and such incapacity will continue until the condition precedent has been
fulfilled, to wit, by a proper, judicial determination of the existence of
such partnership and a due adjudication of its business and affairs.

"Our action in dismissing the petitioner's petition is. based exclusively on
absence of jurisdiction in this Court; and the same is done without preju-
dice to the petitioner's right to seek redress in a tribunal of competent
jurisdiction, having authority to determine the fact of partnership, control
the proper winding up of the partnership business and affairs, compel a due
accounting thereof, and, incidentally, if proper grounds be established, to
restrain the consummation of the alleged wrongful conversion and pro-
posed sale of partnership property and assets ; enforcing its orders by at-
tachments or through a receivership; Partnership Act, March 26, 1915,
P. L. 18, Section 37." Brown's Est., i Wash. 149.

393. PROCEDURE TO COMPEL FILING OF INVEN-
TORY.

(b) In case of the failure or refusal of any executor or admin-
istrator to file an inventory as aforesaid, the orphans' court shall
have power, on petition of any creditor of the decedent or any
party in interest, to issue a citation to such executor or adminis-
trator to show cause why he should not file such inventory and,
if no sufficient cause be shown on the return of such citation, said
court may order the filing of such inventory, and may enforce
such order by attachment as in other cases.

NOTE. This is a new clause, introduced to provide a remedy in the case
mentioned, additional to the remedy by the removal of the executor or
administrator under Section 53 (a) i (see 566 infra), or by action on the



302 FIDUCIARIES ACT SECTION u (fe), (c), (rf), (<?)

bond of an administrator, there being instances in which the only adequate
remedy is by compelling the filing of the inventory.

394. BONDS, NOTES, OTHER EVIDENCES OF DEBT,

ALL CLAIMS AND DEMANDS FOR MONEY
AND OTHER PERSONAL PROPERTY TO BE
INCLUDED IN INVENTORY.

(c) All bonds, notes and other evidences of debt, also all other
claims and demands for money, or any other personal property
owned or held by the deceased at the time of his decease, shall,
as far as the same may be known to his executors or adminis-
trators, be included in the inventory to be made and returned as
aforesaid.

NOTE. This is Section 5 of the Act of February 24, 1834, I Purd. 1090,
which corresponded to Section 6 of the Commissioners' Draft

The section was new in the Act of 1834 and was intended to correct a
practice of omitting bonds and other evidences of debt from the inventory
on the ground that they were not properly subjects of appraisement.

395. DEBT DUE BY EXECUTOR NOT RELEASED BY

APPOINTMENT, AND TO BE INCLUDED IN
INVENTORY.

(d) The appointment of any person to be an executor shall in
no case be deemed a release or extinguishment of any debt or de-
mand which the testator may have had against him, but such debt
shall be included in the inventory, and be subject to distribution
like other personal estate.

NOTE, This is Section 6 of the Act of February 24, 1834, I Purd. 1090,
which corresponded to Section 7 of the Commissioners' Draft. They re-
marked that it was declaratory of the rule then prevailing, saying that
formerly the appointment of a debtor as executor "was deemed at law a
release or extinguishment of the debt"

396. RENTS DUE TO TENANT FOR LIFE TO BE IN-

CLUDED IN INVENTORY.

(e~) The rents of any real estate accruing to any person as ten-
ant for life of such estate, who had demised the same, for a term
or time not fully expired at his decease, shall go to and be vested
in the executors or administrators of such tenant, and the due
proportion of such accruing rent, to be computed according to the
time elapsed at the decease of such tenant, shall be included in the
inventory of personal assets.



FIDUCIARIES ACT SECTION 11 (<?), (/), (ff), (M 303

NOTE. This is Section 7 of the Act of February 24, 1834, i Purd. 1091,
which corresponded to Section 8 of the Commissioners' Draft and was
derived from the Statute of n Geo. II, c. 19. The Commissioners re-
marked: "As the statute is already deemed a part of our law, there is
nothing in the section which requires particular remark."

The only change made is to insert "as tenant," after "to any person."

397. ARREARAGES OF RENT-CHARGE OR OTHER

RENT OR RESERVATION, TO BE INCLUDED
IN INVENTORY.

(/) The arrearages of any rent-charge, or other rent or reser-
vation in nature of a rent, due at the death of any tenant of such
rent, in fee-simple or fee-tail, or for term of life or lives, shall
go to and be vested in the executors or administrators of such
tenant, and be included in the inventory, and appraised as per-
sonal assets.

NOTE. This is Section 8 of the Act of February 24, 1834, i Purd. 1091,
which corresponded to Section 9 of the Commissioners' Draft and was
derived from the Statute of 32 Hen. VIII, c. 37.

The words "of such rent" have been inserted after "death of any tenant,"
and omitted after "life or lives."

398. ESTATES IN LAND FOR LIFE OF ANOTHER TO

BE INCLUDED IN INVENTORY.

(g) All estates in lands or tenements, of which the decedent
was seized at the time of his decease, for the life or lives of an-
other person or persons, shall, unless such estates have been limited
to the decedent and his heirs, go to the executors or administrators
of such decedent, and be included in the inventory, and be subject
to distribution in like manner as leases for terms of years.

NOTE. This is Section 9 of the Act of February 24, 1834, i Purd. 1091,
which corresponded to Section 10 of the Commissioners' Draft and was de-
rived from the Statute of 29 Car. II, c. 3, Section 12.

399. AFTER-DISCOVERED PROPERTY TO BE IN-

VENTORIED.

(h) Whenever personal property or assets of any kind, not
contained in the inventory made and returned as aforesaid, shall
afterwards come to the possession or knowledge of the executor
or administrator, he shall make an inventory thereof and file the
same in the office of the proper register, within thirty days from
the time of the discovery thereof.



304 FIDUCIARIES ACT SECTION 11 (A), (i), (/)

NOTE. This is Section 3 of the Act of February 24, 1834; P. L. 73, I
Purd. 1090, except that the period fixed by that section is four months.

The provision seems to have been new in the Act of 1834. The Com-
missioners of 1830 remarked: "This period (four months) may seem
long, but the reason which prevailed with us in fixing a time was the in-
convenience which might otherwise result in cases where property in small
parcels may be discovered at successive intervals."

The Commissioners now recommend shortening the time to thirty days,
the period allowed for filing the original inventory.

Section u of the Act of February 24, 1834, i Purd. 1091, which corre-
sponded to Section 12 of the Commissioners' Draft, provides: "Whenever
any executor or administrator shall sell, at public auction or vendue, any
of the personal estate of the decedent, he shall, within thirty days there-
after, file in the office of the register having jurisdiction, a just and true
account of the articles so sold, and the prices and purchasers thereof."
The Commissioners reported that this practice was not infrequent in some
parts of the state, but that, as an express direction, the provision was new.

This provision is understood to be obsolete and is therefore recommended
for repeal.

400. APPRAISEMENT, OATH OF APPRAISERS.

(i) Every executor or administrator shall cause a just ap-
praisement to be made, by two or more appraisers, of the goods,
chattels and credits of the decedent, of which an inventory is to
be made, agreeably to the preceding clauses of this section ; and
the said appraisers shall be sworn or affirmed well and truly, and
without prejudice or partiality, to value and appraise said goods,
chattels and credits, and in all respects to perform their duty as
appraisers, to the best of their skill and judgment.

NOTE. This is Section 26 of the Act of March 15, 1832, P. L. 135, I
Purd. 1091, altered by inserting the words "or more" in line 2.

401. NOTICE OF APPRAISEMENT, RETURN.

(/) It shall be the duty of the executors and administrators,
having given convenient notice to the appraisers of the decedent's
estate, of a time and place for making the inventory and appraise-
ment thereof, to produce or make known to them, in the presence
of such of the persons interested in the estate as may attend, the
whole of the personal estate of the decedent, which may have
come to their possession or knowledge; and the inventory and
appraisement thereof being finished, and certified by the apprais-
ers, to file the same in the office of the proper register.

NOTE. This is Section 2 of the Act of February 24, 1834, i Purd. 1091.
It seems to have been new in that act. Some parts of its details were de-



FIDUCIARIES ACT SECTIONS n (/), (fe)-i2 (a) 305

rived from the Statute of 32 Hen. VIII, c. 5. The language has been
changed so as to provide that the inventory and appraisement shall be
filed instead of returned.

402. COMPENSATION OF APPRAISERS.

(fc) The appraisers of the estate of a decedent shall be respect-
ively entitled to receive therefrom, as compensation for their
services in appraising the estate as aforesaid, such sum as the
orphans' court having jurisdiction of the accounts of the execu-
tors or administrators shall deem proper, taking into consideration
the labor, skill and responsibility involved.

NOTE. This is a new section. The Commissioners' Draft of the Act of
1834 provided a compensation of two dollars a day. The act as passed
(Section 10, i Purd. 1091) allowed only one dollar. This was amended
by the Act of May 23, 1913, P. L,. 344, so as to provide a compensation of
two dollars and fifty cents a day. The Act of May 6, 1915, P. I/. 267, 5
Purd. 5889, raised this to five dollars.

The Commissioners are of opinion that the compensation of appraisers
should not be fixed by law at a definite sum for the reason that the labor
and responsibility and skill required of the appraisers are not uniform.
The estate may consist in part of raw materials or the partly finished prod-
ucts of a factory, stocks or bonds having no market value, stock in trade
of a merchant, paintings or articles of a like nature, for the proper ap-
praisement of which the services of an expert may be necessary. A com-
pensation of one dollar or five dollars per day may in such cases be absurd.
On the other hand, there are many cases where a compensation of $2.50
would be entirely adequate, and $5.00 too much. The Commissioners feel
that the amount justly earned may be safely left to the court, as is the
case with the commissions of an accountant.

403. WIDOW'S AND CHILDREN'S EXEMPTION,

CLAIM AND APPRAISEMENT OR SETTING
APART; APPOINTMENT OF APPRAISERS
BY COURT.

SECTION 12. (a) The widow, if any, or, if there be no widow
or if she has forfeited her rights, then the children forming part
of the family of any decedent dying, testate or intestate, within
this commonwealth, or dying outside of this commonwealth, but
whose estate is settled in this commonwealth, may retain or claim
either real or personal property, or the proceeds of either real or
personal property, belonging to said estate, to the value of five
hundred dollars, and the property so retained or claimed shall
not be sold, but suffered to remain for the use of the widow or
children. It shall be the duty of the executor or administrator of
20



3 o6 FIDUCIARIES ACT SECTION 12 (a)

such decedent to have the said property, if personal, appraised
and set apart to said widow or children by the appraisers appoint-
ed to appraise the other personal estate of the decedent, or, if real,
then by two appraisers to be appointed by the orphans' court, who
may be the same persons appointed to appraise the personal estate.
If said five hundred dollars, or any part thereof, shall be claimed
out of money or the proceeds of real or personal property belong-
ing to the estate, it shall be the duty of the executor or adminis-
trator to set apart to said widow or children the amount so claimed
out of said money or out of the proceeds of said real or personal
property after he shall have sold the same. Should any or all
of the appraisers of the other personal estate be unable to make
the appraisement of personal property provided for by this sec-
tion,, or should there be no such appraisers, the orphans' court of
the proper county may appoint a properly qualified appraiser or
appraisers to act in the place of said appraiser or appraisers of the
other personal estate of the decedent.

NOTE. This is founded on Section 5 of the Act of April 14, 1851, P. L.
612, i Purd. 1092, as amended by the Act of July 21, 1913, P. L. 877, 5 Purd.
5889. The provisos of that section as to liens for purchase money and the
filing of the appraisement have been transferred to subsequent clauses.
The provisions of the Act of May 6, 1909, P. L. 459, 5 Purd. 5889, as to
decedents dying outside of the commonwealth, but whose estates are set-
tled in the commonwealth, have been incorporated in the new section. It
seems unnecessary to incorporate the provision of Section i of the Act
of April 8, 1859, P. L. 425, i Purd. 1096, that the widow or children may
elect to retain the exemption or any part thereof "out of any bank-notes,
money, stocks, judgments or other indebtedness." The provision of that
section that the appraisement shall be made by the appraisers of the other
personal estate is covered by the amendment of 1913, which is included in
the new draft. Since the Act of 1859 applies to the debtor's exemption
under the Act of 1849, as well as to the widow's exemption, that act should
not be generally repealed.

The reference in the Act of 1851 to the exemption law of 1849, has been
omitted as unnecessary and confusing. The amount of the exemption has
been increased to five hundred dollars.

The beginning of the section, which reads, "The widow or the children of
any decedent," has been changed. The words "or the proceeds of either
real or personal property when sold" have also been added to meet the
decisions that the exemption cannot be claimed out of the proceeds of
property. See Finney's Appeal, 113 Pa. II ; Snyder's Estate, 12 D. R. 536;
Thoman's Estate, 16 York 154. A corresponding change has been made in
the third sentence. Provision has been made for the case where only a
part of the $500 is claimed in money or proceeds of property.



FIDUCIARIES ACT SECTION 12 (a) 307

Provisions for appointment by the court of appraisers of real estate and
in cases where there are no appraisers of the other personal estate, or
where they are unable to act, have been inserted.

The Act of 1851, together with the debtor's exemption Act of 1849, sup-
plied Section 4 of the Act of February 24, 1834, P. L. 70, which is recom-
mended for repeal.

The amount of the exemption was fixed at $300 at a time when the pur-
chasing power of money was far greater than it is at present. The Com-
missioners are of opinion that the sum to be set apart for the immediate
necessities of the widow or children should be increased to $500.

See form 76.

The new provisions as to widow's exemption inure to the benefit of the
widow of one dying on June 7, 1917.

In so deciding, the court, per LAMORELLE, P. J., said:

"Two questions arise : First, whether the widow is entitled to $300 under
the Act of April 14, 1851, P. L. 612, and its supplements, or $500 under
Fiduciaries Act of June 7, 1917, P. L. 447; and, second, as to the real
value of specific articles selected by her.

"It is stated in Endlich on Statutes (section 389) that the doctrine that
the law knows no fraction of a day has in general been adhered to in this
country both as to contract rights and statutes, though the rigidity of the
rule has been much relaxed where the purposes of justice require the
court to notice such fractions. In the present case the decedent died about
five o'clock in the morning; that is admitted; but to attempt to inquire
into what time of day the Governor signed the act known as Fiduciaries
Act of 1917 and, for that matter, any other act would result in hopeless
confusion and contention. We are on safe ground when we follow the
time-honored rule and hold that the Fiduciaries Act became effective on
the first moment of June 7, 1917, the day it purports to have been signed."

Huber's Est, 27 Dist. 25.

The $500 exemption allowed a widow out of her deceased husband's
estate by the Act of June 7, 1917, P. L. 447 (Fiduciaries Act) does not
vest in her at the death of her husband, but only when she elects to
exercise her right by making a claim for it; and her personal representa-
tive cannot exercise her right for her after her death.

The right to this exemption of $500 is a privilege to retain, and not an
absolute transfer of part of the husband's estate.

In so holding the Court, per MAXWELL, P. J., said :

"It would, therefore, seem to us that the $500 exemption allowed to



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 32 of 71)