Raymond Moore Remick.

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

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widows under the Act of June 7, 1917, P. L. 447, is a personal privilege
and benefit. Her right to have any exempted property depends entirely
upon her claiming it. If she does not claim it, she never has it. If she
neglects unduly to make her claim, she loses her right to do so. The right
under the statute is a privilege to retain, and not an absolute transfer of
part of the estate."

The widow in this case did not make any claim to this exemption prior
to her death. Therefore, it would appear to us that her administrator is
not entitled to claim $500 exemption from the estate of her deceased hus-



308 FIDUCIARIES ACT SECTION 12(0)

band, for the reason that the widow made no claim to have this exemp-
tion of $500. * * * The controlling distinction between the law relating
to the $500 exemption and the $5,000 allowed to widows under the Act
of 1917 is that the $5,000 worth of property, real or personal, vests in the
widow at the death of her husband, and does not require any action on her
part to secure the same.

The $500 exemption does not vest at the death of the husband, but only
when she has elected to exercise the right, and this her executor or admin-
istrator cannot do for her after her death. Desmond's Est., 28 Dist. 231,
36 Lane. 217, 8 Leh. 255.

(Note. It would seem to be improper practice to join in one petition
a prayer for the $500 exemption and a claim to the $5,000 allowance.
Editor.)

Where the plaintiff made claim to her widow's exemption of $500.00 and
personal property of deceased amounting to $499.83 was duly appraised
and set off to her; and of the property set off to her, items amounting to
$394.23 were personal property on the farm and in possession of the de-
fendant who refused to deliver same to plaintiff, but retained them and
had converted them to his own use and the appraisal of property set
off to use plaintiff as widow of deceased was confirmed absolutely by the
court and suit was therefore brought to recover the value of this personal
property converted by defendant, to wit: $394.23, the court, per ROSSITER,
P. J., held: "The questions are first: Has the plaintiff the right to sue
in this manner or to recover the balance due on account of her widow's
exemption? Second: Is her right to exemption out of the personal prop-
erty of her deceased husband superior to the rights of creditors? Third:
Was the confirmation of the widow's appraisement an adjudication of her
right to the property set aside by the appraisers?

"By the Fiduciaries Act of 1917, P. L. 447, Section 12, it is provided that
the widow * * * * May retain or claim either real or personal prop-
erty or the proceeds of either real or personal property belonging to the
estate to the value of $500.00; that the property so retained or claimed
shall not be sold, but suffered to remain for the use of the widow and
children ; that it shall be the duty of the executor or administrator to
have said property appraised and set aside to the widow ; that if the
$500.00 or any part thereof is claimed out of money or proceeds of real or
personal property belonging to the estate, it shall be the duty of the execu-
tor or administrator to set apart for the widow or children the amount so
claimed. The widow here, therefore, had a right to 'retain or claim' the
property above mentioned. If she was in possession of the property she
would undoubtedly 'retain' it, but being out of possession of the property,
she 'claimed' the same and having 'claimed' the same, it was her 'duty' as
administratrix to have it appraised and set aside and that appraisement
confirmed and the defendant refusing to deliver the property, but convert-
ing it to his own use, (which is not denied) it was her 'duty' as adminis-
tratrix to bring an action to the use of herself personally under rights
given her under the act of assembly, so as to distinguish the action from
one brought in the right of the estate, as in the first instance there can be
no offset or counterclaim, while in the latter there may be. And Neely v.



FIDUCIARIES ACT SECTION 12 (a) 309

McCormick, 25 Pa. 255, holds that such action may be in assumpsit. The
first question, therefore, must be answered in the affirmative. The second
question must also be answered in the affirmative. Hill v. Hill, 32 Pa. 511;
Compher v. Compher, 25 Pa. 31 ; Farrell's Estate, 4 W. N. C. 383, 25 P.
L. J. 56; Potter's Estate, 6 Super. Ct. 627 As to the third question we are
inclined to answer that in the affirmative also, but as no case has been
called to our attention in support thereof we do not pass upon it, but we
do hold that the record showing that the defendant in this case, having been
a party to those proceedings and filed exceptions thereto, which were April
1st, 1919, overruled, and the appraisal confirmed without any further excep-
tion to the court's action in that respect he is estopped from denying that
the property set aside by that appraisal was the property of the decedent
or subject to the widow's exemption." Curtis v. Yost, 2 Erie 6.

This section of the Fiduciaries Act, which increases the amount of the
widow's exemption out of her deceased husband's estate from $300 to
$500, makes no other change in Section 5 of the Act of April 16, 1851,
P. L. 613, except in matters of procedure. While there is a verbal
difference between the two acts, it is not enough to enlarge her right at
the expense of the family relation. Hence, her claim is barred where, at
the time of the husband's death, such relation did not exist by reason of
the fact that she had voluntarily abandoned it.

Post's Est., 27 Dist. 748, 66 P. L. J. 761, 8 Leh. 115, 33 York II, 19
Lack. 62, 35 Lane. 226, 36 Lane. 8.

Wilful and malicious desertion of her husband, by a wife, will cause
her to forfeit her right to widow's exemption. Wenger's Est., 35 Lane.
Rev. 196, 27 Dist. 949.

The $500 widow's exemption granted by the Act of June 7, 1917, P. L.
447, is not subject to the direct inheritance tax imposed by the Act of
July li, 1917, P. L. 832, providing that "All estates * * * passing from
any person * * * either by will or under the intestate laws * * * are sub-
ject to the tax of $2 on every hundred dollars of the clear value of such
estate."

"Such exemption is a wife's inchoate property right in a husband's
estate, which becomes complete when as his widow she sustains her claim
for it. It is not subject to the tax imposed on the estate passing from a
deceased husband." Hildebrand's Est., 262 Pa. 112, 104 Atl. 866 (affirming
35 Lane. 73, 66 Pitts. L. J. 176, 31 York 184. See also 35 Lane. Rev. 303).

Where the owner of life insurance policies on his life, delivered the
same to another without actual assignment, but with a clear expression of
intent to make a gift thereof, with the condition that the donee shall pay
the donor's debts and funeral expenses, and the policies thereafter, until
the decease of the donor remained in the possession of the donee, who
meanwhile paid a premium on each policy, it was held The donee was
entitled to the proceeds of the policies and, there being no other assets of
the decedent, the court refused to appoint appraisers to set aside the
widow's exemption out of the donor's estate. Becker's Est., 33 York 139.

Under Section 12 of the Fiduciaries Act of 1917, P. L. 471, providing
that "children (where there is no widow) forming part of the family of any
decedent * * * may retain either real or personal property * * *



3 io FIDUCIARIES ACT SECTION 12 (a)

belonging to said estate to the value of five hundred dollars," a daughter
who lived with her father prior to and at the time of his death is entitled
to the exemption regardless of her age or condition of dependence on the
parent.

"This part of the section is founded on Section 5 of the Act of April 14,
1851, P. L. 612, which provides that 'the widow or the children of any
decedent dying within this Commonwealth, testate or intestate, may
retain either real or personal property belonging to said estate to the
value of $300 and the same shall not be sold, but suffered to remain for
the use of the widow and family * * *.' It will be observed that the
beginning of the new section has been changed and that the words 'then
the children forming part of the family of any decedent dying' are new
and were not in the former act. The reason for the change is very
apparent, when it is remembered that under the former act there was
room for judicial construction with respect to the persons entitled to
the benefits allowed by the act. The courts, however, in construing the
Act of 1851, invariably held that its purpose was the protection of the
family, and that, therefore, if the widow and children were members of
the family at the date of death, no other circumstance or condition could
deprive them of the exemption.

"To harmonize the law and the views of the courts on the subject, the
Legislature, upon the recommendation of the commission to codify and
revise the law of decedents' estates, incorporated in Section 12 of the
Act of 1917 the language describing 'children as forming part of the
family of any decedent dying' and thus settled the question as to which
children are entitled to the exemption.

"Under the Act of 1851, where the language was not so explicit and clear
as it is in the Act of 1917, it was repeatedly held, that when the family
relation was maintained by either the widow or children, the exemption
was properly allowed. The age of the claimant was without significance,
and the question of dependence had nothing to do with the operation of the
Act In Lane's Est, 6 Dist. R. 618, decided by Judge STEWART, it was held
that the criterion for recovery by an adult is not dependence, but the main-
tenance of family and residence with the testator. To the same effect is
Stevenson's Est., 23 Dist. R., 747, where it was decided that a married
daughter is entitled to the exemption, even though she is independent of
her father, if she maintains the family residence and relation with him.
In the light of this construction of the Act of 1851, which appeared to be
narrower in its scope than the present one, it can hardly be said that when
the present act reads 'then the children forming part of the family of any
decedent dying * * * ,' it does not include all the children who con-
on the parent." SCHAEFFER, P. J., in Hornberger's Est., 13 Berks 183, 30
Dist. 907.

An appraisement made in accordance with the provisions of Section 12
of the Fiduciaries Act of 1917 will not be set aside on exceptions unless
it be shown that the appraisers lacked appreciation of their responsibility,
that their labors are unworthy of consideration or that their findings are
clearly erroneous. Zerbe's Est. 13 Berks 277.



FIDUCIARIES ACT SECTION 12 (&), (c), (<*) 311

404. LIENS FOR PURCHASE MONEY OF REAL ES-
TATE NOT TO BE AFFECTED.

(&) The provisions of this section allowing the widow or chil-
dren of a decedent to retain real property, or the proceeds thereof,
to the value of five hundred dollars shall not affect or impair any
liens for the purchase money of such real property.

NOTE. This is founded on the first proviso to Section 5 of the Act of
1851, as amended by the Act of July 21, 1913, P. L. 877, 5 Purd. 5889.

The words "or the proceeds thereof" have been inserted.

See Becker's Est., 33 York 139.

405 OATHS AND COMPENSATION OF APPRAISERS.

(c) Such appraisers shall be sworn or affirmed to appraise the
property claimed by the widow or children of the decedent under
the provisions of this act. The compensation of such appraisers
for making an appraisement of personal property shall be included
in the compensation allowed by the orphans' court for the perform-
ance of their duties as appraisers of the other personal estate of
the decedent, and shall be paid out of the decedent's estate; and
the compensation of appraisers appointed by the orphans' court
as aforesaid shall be fixed by said court and shall also be paid out
of the decedent's estate.

NOTE. This is a new section, founded on Section 2 (fc) of the new
Intestate Act. (See 297 supra.)

The Commissioners are of opinion that the appraisement of real estate
should be made by persons specially appointed rather than by the appraisers
of the personal estate, who as a general rule are not familiar with real
estate valuations ; and that their compensation should properly be con-
sidered as an administration expense. The widow should receive her ex-
emption without the deduction of such expenses or those of any necessary
advertisements as provided in the next section.

See Becker's Est., 33 York 139.

406. ADVERTISEMENT OF NOTICE; CONFIRMA-
TION AND FILING OF APPRAISEMENT; PAY-
MENT OF EXPENSES OF ADVERTISEMENT
OR NOTICE.

(rf) Upon due proof of compliance with such requirements as
to notice, by advertisement or otherwise, as may be prescribed by
the orphans' court of the proper county by general rule or other-
wise, such court may enter a decree directing the payment of the



312 FIDUCIARIES ACT SECTION 12 (rf), (*) i, 2, (/)

money, or confirming the appraisement of the personal or real
estate chosen by said widow or children, and said appraisement,
signed and certified by the appraisers and approved by the court,
shall be filed among the records thereof : Provided, That all ex-
penses of such advertisement or notice shall be paid out of the
decedent's estate.

NOTE. This is a new section, founded in part on the first proviso of
Section 5 of the Act of 1851 as amended by the Act of July 21, 1913, P. L.
877, 5 Purd. 5889, and in part upon Section 2 (c) of the new Intestate
Act (See 298 supra). The provision as to payment of expenses out of
the estate is new.

407. EXEMPTION TO MINOR CHILDREN, DUTY OF

EXECUTOR OR ADMINISTRATOR TO ACT.

(0) i. In the case of any decedent leaving to survive him any
minor child or children forming part of his family, and no widow,
his administrator or executor, without request made to him by any
one, shall have appraised and set aside, for the use and benefit of
all such minor children of said decedent, property to the full value
of five hundred dollars.

NOTE. This is Section i of the Act of June 4, 1883, P. L. 74, i Purd.
1096, substituting "five hundred dollars" for "now allowed by law," etc.,
and "minor child or children forming part of his family" for ''child or
children under the age of fourteen years."

408. GUARDIAN OR EXECUTOR OR ADMINISTRA-

TOR TO SELECT PROPERTY TO BE SET
ASIDE.

2. The guardian of said child or children, and if there be none,
the administrator or executor, with the appraisers, shall make
selection of the property to be set aside, and in so doing, the said
guardian, or the said administrator or executor, with the apprais-
ers, shall be governed by the necessities of such child or children,
under the circumstances of each case.

NOTE. This is Section 2 of the Act of June 4, 1883, P. L. 74, i Purd.
1096, changing "appraiser" to "appraisers" and substituting "in so doing"
for "in the same."

409. WHERE ESTATE DOES NOT EXCEED FIVE

HUNDRED DOLLARS.

(/) When any decedent shall leave to survive him a widow or
children and an estate not exceeding in value five hundred dollars
it shall be lawful for such widow, or for such children by any next



FIDUCIARIES ACT SECTION 12 (/), (g) 313

friend or guardian, if to said children the right belongs, to petition
the orphans' court of the proper county for the appointment of
two appraisers, who shall appraise and set aside any property of
said decedent, selected by such widow or by such next friend or
guardian, in the same manner and with the same effect as if letters
testamentary or of administration had issued and the appraisers
been selected in the usual way. Such appraisers shall be sworn or
affirmed, and shall receive for their services such compensation as
shall be allowed by said court.

NOTE. This is Section 3 of the Act of June 4, 1883, P. L,. 74, i Purd.
1096, the language being slightly changed for the sake of clearness, espe-
cially so as to show that the widow need not file her petition by a next
friend. The last sentence is new, and the amount is changed from three
hundred to five hundred dollars.

410. CLAIM OF EXEMPTION OUT OF REAL ESTATE
APPRAISED AT MORE THAN AMOUNT OF
CLAIM; APPRAISEMENT AND CONFIRMA-
TION; PAYMENT OF EXCESS; SALE ON
FAILURE TO PAY.

(g) Whenever the widow or children of any decedent shall
claim the sum of five hundred dollars in value, or any part thereof,
under the provisions of this act, out of real estate left by said
decedent, and the real estate appraised cannot be divided so as to
set apart the amount so claimed in value without prejudice to or
spoiling the whole or any parcel of said real estate, and the ap-
praisers may have appraised or shall appraise and value the same
at an amount equal to or exceeding the amount claimed by said
widow or children out of said real estate, over and above the
liens that are upon it, the orphans' court to which such appli-
cation shall be made may confirm such appraisement and set
apart, for the use of the widow or children, such real estate, sub-
ject to whatever liens may be against the same ; conditioned, how-
ever, that the widow or children shall pay the amount of the val-
uation or appraisement, over and above the liens that may be
against the said real estate, in excess of the amount claimed by
said widow or children out of said real estate, within one year
from the date of confirmation of such valuation. If the widow or
children making such claim shall fail to make payment as above
provided, the court, on application of any person interested, shall
direct the executor or administrator to sell the said real estate,
and the procedure in such case shall be the same as is provided



314 FIDUCIARIES ACT SECTION 12 (<?), (A), (i)

by law in cases of sales of real estate for the payment of debts of
a decedent.

NOTE. This is founded on Sections i and 2 of the Act of June i, 1915,
P. L, 682, 5 Purd. 5889, which repealed the Act of November 27, 1865, P. L.
(1866) 1227, i Purd. 1096. The Act of 1915 has been modified so as to
make the procedure uniform with that prescribed by Section 2 (d) of the
new Intestate Act, (See 299 supra.)

411. TITLE TO VEST ON PAYMENT OF EXCESS;

DISTRIBUTION OF PROCEEDS OF SALE.

(A) The real estate, if taken by the widow or children as afore-
said, shall vest in her or them and her or their heirs or assigns,
subject to any liens upon it, on her or their paying the surplus
over and above the amount claimed by her or them out of said
real estate to the parties entitled thereto. Should the real estate
be sold as provided in clause (<?) of this section, then the sum of
five hundred dollars or such part thereof as may be claimed out
of the real estate shall be paid out of the purchase money to the
widow or children, and the balance, after payment of costs and
expenses, distributed to the heirs or other persons legally en-
titled thereto.

NOTE. This is founded on Sections 3 and 4 of the Act of June i, 1915,
P. L. 682, 5 Purd. 5889, which repealed the Act of November 27, 1865, as
above noted. The Act of 1915 has been modified so as to make the pro-
cedure uniform with that prescribed by Section 2 (e) of the new Intestate
Act (See 300 supra.)

Section 5 of the Act of 1915 provides : "All former appraisements, here-
tofore made as authorized hereby, are validated and made good and effec-
tual." Section 6 of the Act of 1915 is merely a repealer.

412. WIDOW OR CHILDREN ENTITLED TO RENTS,

INCOME, INTEREST AND DIVIDENDS FROM
DEATH OF DECEDENT; DEDUCTION OF
PROPORTIONATE PART UPON FAILURE TO
PAY EXCESS VALUE OF REAL PROPERTY.

() In all cases where the appraisement of property, real or
personal or both, is confirmed and the property set apart to the
widow or children under the provisions of this section, said widow
or children shall be entitled to receive for her or their own use
the net rents, income, interest and dividends thereof from the date
of the death of such decedent : Provided, That where the property
so set apart shall consist of real estate appraised at an amount ex-
ceeding the amount claimed by said widow or children out of said



FIDUCIARIES ACT SECTION 12 (), (;) 315

real estate, over and above the liens that are upon it, and the
widow or children shall fail to pay the excess over the amount so
claimed as provided in clause (g) of this section, and the property
shall thereupon be sold, there shall be deducted from the sum to be
paid to said widow or children out of the proceeds of such sale a
proportionate part of the rents and income of such real estate
received by such widow or children.

NOTE. This is a new clause, modeled upon Section 2 (/) of the new
Intestate Act. (See 301 supra.) It will be of less frequent application
under the present act, but seems to be proper.

413. PROCEDURE WHERE REAL ESTATE LIES IN
ANOTHER COUNTY OR IS DIVIDED BY A
COUNTY LINE.

(/) Whenever the widow or children of any decedent shall
claim the said five hundred dollars in value, or any part thereof,
under the provisions of this section, out of the real estate left by
the said decedent and lying in any county of this state other than
the county wherein said decedent shall be domiciled at the time of
his death, and the orphans' court having jurisdiction of the
accounts of the personal representatives of said decedent shall be
satisfied, upon petition filed, of the propriety of allowing such
claim, it shall be lawful for such court to make a decree authoriz-
ing such widow or children to file her or their petition in the
orphans' court of the county wherein such real estate may lie, or,
in a case where the real estate is divided by a county line, in the
county where the mansion house may be situated, or, if there be
no mansion house, in the county where the principal improvements
may be, or, if there be no improvements, in either county, praying
for the appointment of two appraisers. Upon the filing of such
petition duly verified, it shall be the duty of the latter court to
appoint such appraisers, who shall be duly sworn or affirmed, and
shall appraise said real estate, and shall be compensated as di-
rected by said court ; and proceedings shall thereupon be had in
said court and subject to its supervision and control, in the same
manner and with the same effect as is provided in clauses (g), (/i)
and (i) of this section. In every such case a certified copy of the
decree confirming such appraisement, or of such decree of sale
and the confirmation thereof, as the case may be, shall forthwith
be filed with the clerk of the orphans' court having jurisdiction
of the accounts of the personal representatives of the said dece-



316 FIDUCIARIES ACT SECTIONS 12 (/), (*)-i3 (a)

dent. The latter court shall in all cases have exclusive jurisdic-
tion of the distribution of the surplus paid by such widow or
children, or of the proceeds of such sale, after the payment of
costs and expenses, as the case may be,

NOTE. This is a new clause, modeled on Section 2 (g) of the new
Intestate Act (See 302 supra.) The clause seems necessary, although the
case may not arise frequently.

414. RECORDING AND REGISTRY OF DECREE CON-

FIRMING APPRAISEMENT OF REAL ESTATE.

(&) In all cases where a decree shall be entered by any orphans'
court confirming an appraisement of real estate and setting apart
the same for the use of the widow or children, a certified copy of
such decree shall be recorded in the office of the recorder of deeds
of each county where such real estate shall lie, 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
name or names of the widow or children, and shall be registered
in the survey bureau, or with the proper authorities empowered
by law to keep a register of real estate, if any there be, in each of
said counties. The charges for recording and registering shall be
the same as are provided by law for similar services, and shall be
paid out of the estate of the decedent.

NOTE. This is a new clause, modeled on Section 2 (h) of the new
Intestate Act (See 303 supra.)

415. PAYMENT OF DEBT OF DECEDENT, ORDER

OF PAYMENT.

SECTION 13. (a) All debts owing by any person within this state,
at the time of his decease, shall be paid by his executors or admin-
istrators, so far as they have assets, in the manner and order fol-
lowing, viz. : i. Funeral expenses, medicine furnished and medical
attendance given during the last illness of the decedent, and serv-



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 33 of 71)