Raymond Moore Remick.

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

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ants' wages, not exceeding one year; 2. Rents, not exceeding
one year ; 3. All other debts, without regard to the quality of the
same, except debts due to the commonwealth, which shall be last
paid.

NOTE. This is Sec. 21 of the Act of Feb. 24, 1834, (P. L. 76) i Purd. 1103
(Section 22 of the Commissioners' Draft), which was founded on Section
14 of the Act of April 19, 1704, 3 Sm. L. 143.

See Miller's Est, 264 Pa. 310, 107 Atl. 614.



FIDUCIARIES ACT SECTION 13 (a), (&) 317

"The history of this legislation, as shown in the Act of April 19, 1794,
3 Sm. L,. 143, the second report of the Commission of 1830 to revise the
Civil Code, pages 39 and 52, and the Act of 1834, above referred to, shows
that the words 'without regard to the quality of the same' were intended to
obliterate the old distinctions which gave priority to judgments, recogni-
zances, bonds and specialties, and do not apply to cases where the order of
preference may depend upon the special incidents of the contract between
the parties." GEST, J., in Cockran's Est, 28 Dist. 654.

A liquor license is not in the usual sense an asset for the payment of
debt of the deceased licensee.

Where the widow of a deseased owner of a liquor license contracted
with one of the creditors to sell the license, good will and unexpired lease-
hold, with the personal property on the premises, at public sale, and gave
the creditor forty per cent, of the net proceeds, in consideration of that
creditor's staying its execution, which it had levied on the property in the
decedent's lifetime, the contract is binding on the creditors, even if the
estate is insolvent. The landlord, in such a case, is not entitled to a pref-
erence as to his claim for rent due at the decedent's death out of the pro-
ceeds of sale of the good will, license and leasehold under the Acts of
February 24, 1834, Section 21, P. L. 70, and the Fiduciaries Act of June 7,
1917, P. L. 447. Tschopp's Est., 27 Dist. 103, aff'd in 71 Super. 434.

Funeral expenses, being regarded as equivalent to a debt of the decedent
should be deducted in computing inheritance tax. Smith's (Jennie) Est.,
49 Pa., C. C. 453, 29 Dist. 917.

416. PAYMENT NOT TO BE COMPELLED WITHIN
SIX MONTHS.

(&) No executor or administrator shall be compelled to pay any
debts of the decedent, except such as are by law preferred in the
order of payments to rents, until six months be fully elapsed
from the granting of the administration of the estate.

NOTE. This is Section 22 of the Act of 1834, i Purd. 1105, which was
new in that act. The only change now made is to reduce the period from
one year to six months.

Section 23 of the Act of 1834, i Purd. 1106, which was new in that act,
reads : "Whenever the laws of the place in which was the decedent's
domicile at the time of his death, contain any provisions whereby a
preference may be given in the payment of debts, due to the citizens or
residents thereof, as such, over the citizens or residents of this state, the
executor or administrator shall, in the disposition of such of the assets
as may come into his hands, observe the like rules of preference in favor
of the citizens or residents of this Commonwealth over the citizens or
residents of such place, in the same manner as if such rules were hereby
expressly enacted."

It is recommended that this reciprocity provision be repealed.



3i8 FIDUCIARIES ACT SECTION 14

417. RENTS OF REAL ESTATE TO BE ASSETS FOR
PAYMENT OF DEBTS WHEN PERSONAL ES-
TATE INSUFFICIENT; COLLECTION BY EX-
ECUTOR OR ADMINISTRATOR.

SECTION 14. Rents of real estate accruing after the death of the
owner of such real estate, who shall die on or after the day on
which this act shall go into effect, shall be assets for the payment
of debts of such decedent whenever the personal estate shall be
insufficient therefor. Whenever the personal estate of such de-
cedent shall appear to be probably insufficient for the payment
of debts, the orphans' court having jurisdiction of the accounts of
the executor or administrator shall, upon application of any cred-
itor of the decedent, or upon application of the executor or ad-
ministrator, or of any other person interested, authorize and direct
the executor or administrator to collect such rents for such period
as the court shall fix. In such case, the executor or administrator
shall have power to collect such rents by action at law, distress, or
otherwise, as the decedent, in his lifetime, might have done as to
rents of such real estate ; and rents so collected shall be accounted
for by the executor or administrator in his account of the personal
estate of the decedent.

NOTE. This is a new section. Land in Pennsylvania has been an asset
for the payment of debts, at least since 1693; Laws made at Philadelphia,
c. 14; but until the land has been brought into administration either by the
provisions of the will or by process of law, it belongs to the heir or devisee,
who is consequently entitled to the rents ; and even where the estate is in-
solvent an executor or administrator, and consequently the creditors, have
no right to the interim rents : Fross's Appeal, 105 Pa. 258. This does not
appear to be just, for the devisee or heir should have no right to anything
until the debts are paid ; and the Commissioners recommend this change
in the law in order that this inequality may be corrected.

Furthermore the application of the rents during the period of admin-
istration to the payment of debts may in some cases obviate the necessity
for a sale and perhaps a sacrifice of the real estate.

See, generally, Miller's Est., 264 Pa. 310; 107 Atl. 614 Cullen's Est., 16
Sch. 278.

Under this section of the Fiduciaries Act executors are entitled to collect
rents and to possession of decedent's real estate as against the residu-
ary devisee, it appearing that the personal estate of the decedent was not
sufficient to pay decedent's debts, and a petition on behalf of the devisee
to vacate an order made without notice authorizing the executors to collect
the rents of the real estate was dismissed.

While the Fiduciaries Act of June /, 1917, declares that the rents of a
decedent's real estate shall be assets for the payment of debts and that the



FIDUCIARIES ACT SECTION 14 319

court shall authorize the executor to collect them, it seems clear that this
power should be granted when prima facie facts appear in a petition cover-
ing the provisions of the Act. But the proper practice is that notice should
first be given to all parties interested.

The power "to collect by action at law, distress or otherwise," as pro-
vided by the Fiduciaries Act of June 7, 1917, is not limited to rents on
outstanding leases. The act does not make mention of outstanding leases ;
it concerns itself with all rents, meaning those that are based on leases, etc.,
and those that should be obtained out of the profits which the lands can
produce, so that executors under this statute have the power to make and
renew leases. Reel's Est., 65 P. L. J. 689 affirmed in 263 Pa. 248, 106
Atl. 227.

"This is new and very wise legislation, for before its passage the rents
accruing from the real estate of a decedent owner went to his heirs and
devisees from the time of his death : Haslage v. Krugh, 25 Pa. 97 ; Fross's
Appeal, 105 Pa. 258; and the heir or devisee of an insolvent decedent
took such rents at the expense of the creditors of the estate. To remedy
this long existing injustice by making rents, as well as the land out of which
they issue, assets for the payment of the debts of a decedent, the fourteenth
Section of the Act of 1917 was passed." * * *

"Rents which accrued after the death of Almatia L. Reel on leases ex-
ecuted by her undoubtedly became assets for the payment of her debts
under the Act of 1917, and as this is conceded, the real and only question
for determination is as to the authority of the executors to collect rents,
as assets for the payment of her debts, from real estate which was not
under lease at the time of her death. As has been observed, the manifest
purpose of the Act of 1917 is the correction of a long standing wrong to
creditors of deceased owners of real estate, and to give effect to that
purpose, the act is to be given a liberal construction : Quinn v. Fidelity
Beneficial Association, 100 Pa. 382; Poor District of Huntingdon Twp. v.
Poor District of New Columbus Boro., 109 Pa. 579; Commonwealth v.
Shaken, 215 Pa. 595; Jones v. Beale, 217 Pa. 182. The cardinal rule in
construing any statute is to ascertain the legislative intent, that effect may
be given to it. No strained construction need be put upon the fourteenth
Section of the Act of 1917 to discover the legislative intent in passing it.
A reasonable reading of its words makes that intent most clear. It is that
rents of real estate accruing after the death of the owner shall be assets
for the payment of the debts of the decedent when the personal estate shall
be insufficient therefor. Rents generally not merely rents which may
accrue after the death of decedent on leases executed by him or her are
made assets for the payment of debts. And what are rents? They are
certain profits not necessarily money issuing yearly out of land and
tenements corporeal: 2 Blackstone 41. Applying this to the Fourteenth
Section of the Act of 1917, in which nothing is said about leases, what is
an executor or administrator authorized to collect as assets for the payment
of debts of his decedent under the direction of the Court? Clearly what-
ever yearly profits can be realized from the real estate of his decedent, if
the personal estate is insufficient for the payment of debts, whether such
profits are from a lease made by the decedent or by his personal repre-



320 FIDUCIARIES ACT SECTIONS 14-15 (a)

sentative under the authority of the Court. In other words, the legislative
intent, as clear by implication as if expressed in words, is that neither heir
nor devisee shall profit from the real estate of a decedent when it or the
rents issuing from it are needed for the payment of debts."

"Under the strained construction we are asked to place upon the act its
purpose would be defeated whenever there would be no existing Ieae of
a decedent leaving personal property insufficient for the payment of debts.
In refusing to so construe the act, the learned judge below, speaking for
the court, aptly and properly said of its I4th section: 'If its language
means only rents on leases made by a decedent in his lifetime, then an
insolvent decedent could limit all leases made by him to his lifetime,
permit his heir or devisee to take a large asset of his estate, to the com-
plete detriment of his creditors, pending a sale of his land. If it was
not intended to make rents proper assets for payment of debts, in absence
of leases, then productive real estate can lie idle without benefit to
creditors. If it was not intended that executors should take possession
and secure rents pending sale, then the provision is a futile one.' Nothing
more need be added in disposing of this appeal."

Per BROWN, C. J., in Reel's Est, 263 Pa. 248, 106 Alt. 227, affirming 65
P. L. J. 689.

The Fiduciaries Act of June 7, 1917, Section 14, P. L. 447 makes rents
accruing after the death of the owner of real estate assets for payment of
his debts, when the personal estate is insufficient, and provides for the
collection of the same by the personal representatives. But the lien of the
unsecured debts on a decedent's real estate is lost, unless, within a period
of one year after the decease of the debtor, an action for the recovery be
brought against his personal representatives. Therefore, if a creditor has
failed to commence suit within one year, the executor or administrator
has no authority afterward to apply the rents from the real estate to the
payment of his claim. Kearney's Est., 30 Dist. 75.

"It was no omission not to have included in the petition for the order
to sell the real estate an averment that with the rents the personal estate
is insufficient to pay the debts. It is only by virtue of the Fiduciaries Act
of 1917 (Section 14), that rents accruing after the death of the owner of
real estate can become assets for the payment of debts ; and it applies only
to the debts of such as died on or after the date it became effective, which
was about eight years after the death of Abraham Bowman."

Per SMITH, P. J., in Bowman's Est., 47 Pa. C. C. 405, 28 Dist. 766, 67
P. L. J. 321, 36 Lane. 121, 33 York 2.

418. LIEN OF DEBTS OF DECEDENT; LIEN LIM-
ITED TO ONE YEAR UNLESS ACTION
BROUGHT, INDEXED, AND DULY PROSE-
CUTED TO JUDGMENT.

SECTION 15. (a) No debts of a decedent, including the cost of
settlement of the estate, and the funeral expenses of the decedent,
except as provided in clauses (b), (g) and (h) hereof, shall re-



FIDUCIARIES ACT SECTION 15 (a) 321

main a lien on the real estate of such decedent longer than one
year after the decease of such debtor, unless within said period
an action for the recovery thereof be brought against the executor
or administrator of such decedent, and such action shall be
indexed, within said period, against the decedent and such ex-
ecutor or administrator, in the judgment index in the county in
which such action is brought, and also in the county in which the
real estate sought to be charged is situate, and be duly prosecuted
to judgment; and then to be a lien only for the period of five
years unless the same be revived by writ of scire facias against
the decedent, his heirs, executors, or administrators, and the
devisee, alienee, or owner of the land sought to be charged, in
the manner now provided in the case of the revival of judgments.

The plaintiff may, at his election, join such surviving spouse
and heirs, and the devisee, alienee, or owner of the land in such
original action, in which event such action shall be indexed as
aforesaid against all defendants so joined. In any action brought
under this section, if the plaintiff obtains a verdict or a judgment
or an award by an auditor, or, before obtaining a verdict or a
judgment, obtains, by the orphans' court in his favor, or otherwise
obtains an allowance of his claim, he shall also be allowed costs
of suits, without regard to the amount of his claim, and without
the filing of an affidavit that the debt due or damages exceeds the
sum of one hundred dollars. If an action for the recovery of a
debt be brought as aforesaid, it shall be deemed to have been duly
prosecuted to judgment if award in favor of the plaintiff be made
by an auditor or the orphans' court, or if the claim be included in
a schedule of distribution and the latter be confirmed by the
court. 1

NOTE. This is the first part of Section i of the Act of May 3, 1909, P.
L. 386, 5 Purd. 5891, changed by reducing the period of the lien to one year
instead of two, and by omitting, for the sake of clearness, the provisions
as to debts not payable within the year, which are embodied in clause (b)
of this section.

The Act of 1909 apparently repealed by implication Section I of the Act
of June 14, 1901, P. L. 562, I Purd. 1106, which amended Section I of the
Act of June 8, 1893, P. L. 392. The Act of 1893 supplied Section 24 of the
Act of 1834, which was derived from Section 4 of the Act of April 4,
1797, 3 Sm. L. 296.

Section 5 of the Act of 1909, as amended by the Act of May 14, 1915,
P. L. 475, 5 Purd. 5892, expressly repeals the Act of June 18, 1895, P I/.
197, I Purd. 1108, and Section 25 of the Act of February 24, 1834.

Before the Act of 1797, the lien was of indefinite duration. That
act reduced it to seven years, the Act of 1834 to five years, and the Act of

21



322 FIDUCIARIES ACT SECTION 15 (a)

1893 to two years. It is now recommended that the period be reduced to
one year.

The words "and the funeral expenses of the decedent" have been inserted
in order to settle the question whether such expenses are subject to the
limitation of lien.

The last sentence is new, but declaratory of the law as laid down in the
decisions.

There seems to be no reason why the lien should continue longer than
one year. At present the personal estate of a decedent may be distributed
at the expiration of one year, and if the procedure prescribed by law be
followed, creditors lose their grasp, which corresponds to a lien, upon the
fund distributed. It is perhaps proper that the lien should continue for
a somewhat longer period of time as to real estate, but inasmuch as, ac-
cording to the act recommended, the time allowed for the settlement of
the personal estate is shortened to six months, the Commissioners recom-
mend a corresponding abbreviation of the lien as to real estate. It will, of
course, not be forgotten that a creditor may by appropriate proceedings
under this section continue his lien for a longer period.

1 The portion in Italics added by the Amendment of June 7, 1919
(P. L. 412).

Funeral expenses were held a debt under the section in Smith's Est, 49
Pa. C. C. 453, 29 Dist. 917.

An administrator is not obliged to pay and it is no part of his duty as
administrator to pay from his own funds the debts of the decedent whom
he represents, but having paid them his claim for reimbursement therefor
becomes that of an unsecured creditor and is within the statute of lim-
itations.

The Fiduciaries Act of 1917 repeals absolutely both the Acts of 1901,
P. L. 562, and of 1909, P. L. 386, relating to debts of decedents, and being
retroactive, the costs of administration accrued prior to the passage of
this act are collectible from the real estate and will be allowed from a
fund in the hands of a trustee in partition.

Where the heirs of a decedent agreed under seal that a debt owing by
decedent should be paid "out of said estate upon a final settlement thereof,"
this agreement would include the real estate as well as the personalty,
would toll the statute and the claim will be allowed at the distribution of a
fund arising from partition, but without interest, the principal being pay-
able at the final settlement of the estate. Olson's Est., 65 P. L. J. 571,
34 Lane. 397-

Clause (a) of Section 15 of the Fiduciaries Act of 1917 (June 7, 1917,
P. L. 447) provided that no debts, etc., of a decedent shall remain a lien
on his real estate longer than one year after the decease of such debtor
unless within said period an action for the recovery thereof be brought
against the executor ,or administrator of such decedent. The question in-
volved in this appeal is whether Clause (c) of said section, which declares
the foregoing provision to be retroactive is unconstitutional. There can
be no doubt of the intention of the legislature to make it retroactive * * *



FIDUCIARIES ACT SECTION 15 (a) 323

Here the purpose is unmistakable ; it is the power of the legislature to
enact such a provision which is questioned.

The appellant contends that it is violative of Article I, Section 17, of the
Constitution, which provides ; "No ex post facto law, nor any law impair-
ing the obligation of contracts * * * shall be passed." The term, ex
post facto, as used in the Constitution of the United States and of this
State is limited to penal statutes, and may be defined as one which imposes
a punishment for an act which was not punishable when it was committed,
imposes additional punishment or changes the rules of evidence by which
less or different testimony is sufficient to convict ; 8 Cyc. 1027 ; Calder v.
Bull, 3 Dallas, 386 p. 390. Clearly the Fiduciaries Act of 1917 is not an
ex post facto law in respect to Clause (c) aforesaid. Does it impair the
obligation of contracts? If not, it is not prohibited by the Constitution.
Gault's App. 33 Pa. 94.

It is not contended that the decedent entered into any contract with the
appellant that his debt to her should be a lien on his real estate for any
specified period after his death. She lent him one thousand dollars on
July 19, 1915, and took his simple promissory note therefor dated the same
day and payable one year thereafter. The fact that upon his death this
debt became a lien on his real estate, was due to the provisions of an early
statute of Pennsylvania, which thus gave her a means of recovering the
debt owing her by said decedent; but it transferred to her no right of
property ; a lien is not a title to a thing, but a right to present a claim
against it and demand payment out of it. Taylor y. Carryl, 24 Pa. 259, p.
266 * * *

On full consideration, we are of opinion that the clause of the Act of
1917 in question did not impair the obligation of any contract between the
appellant and the decedent, and is, therefore, constitutional. The act did
not take away from the plaintiff at the time of its approval any vested
right; she was not deprived of her right to pursue her remedy; on the
contrary it was specifically preserved ; the legislature simply limited the
time within which she could assert her claim against the decedent's real
estate, but did not deprive her of the claim itself. There can be no question
as to the reasonableness of the time allowed her, for she was given the
same time to bring her suit that is granted to creditors of persons dying
since the passage of the act. For a whole year thereafter the appellant
might have preserved her claim and the right to enforce payment out of
the decedent's real estate, but having done nothing during that period she
is barred by her own inaction from looking to that fund or security for
payment of her debt. The outcome is unfortunate but it is the result of
her sleeping on her rights.

The praecipe for the indexing of the action in the judgment index, in
accordance with the provisions of Clause (d) of the same section, showed
that the decedent had died over a year before suit was brought. It was,
therefore, irregular on its face and furnished no legal warrant for the entry
in the judgment index, and the court below was justified in ordering such
entry to be stricken from the records.

The appellant however had the right to bring her action against the ex-
ecutor of the decedent, and to prosecute the same to judgment, irrespective



324 FIDUCIARIES ACT SECTION 15 (a)

of the Act of 1917. Any judgment obtained therein would not be a lien on
the decedent's real estate, but would be entitled to share in the distribution
of any personalty that might come into the executor's hands. The court,
therefore, went too far in ordering the action to be dismissed. The mis-
take was, no doubt, inadvertent and would have been corrected if the
matter had been called to the court's attention. We know of no warrant,
however, for joining the deceased person as a co-defendant with the ex-
ecutor in such action. Even under the Act of 1917, the action is to be
brought against the executor or administrator, but indexed against the
decedent, and his legal representatives. We will consider the caption of the
suit to have been so amended." KELLER, J., in Myers v. Lohr, 72 Super.
472, affirming 66 P. L. J. 665, 8 Leh. 119, 19 Lack. 287. See also Kirk v.
Van Horn, 265 Pa. 549, 109 Atl. 522; Olson's Est, 65 P. L. J. 57 1, 34
Lane. 397; Scherrer's Est., 7 West. 109.

Under Section 15 (a) of the Fiduciaries Act of June 7, 1917, P. L. 447,
which limits the liability of a decedent's real estate for his debts to one
year, the word "debts" includes the costs of settling the estate and the
funeral expenses.

The retroactive character of this section does not render it unconstitu-
tional, for no contractual obligation is thereby impaired.

Although the statute shortens the period of limitation of actions, it
gives a reasonable time for the commencement of a suit, and is, therefore,
constitutional. * * * The amount due the widow for counsel fee,
commissions and funeral expenses was a lien on the real estate as of
June 7, 1917, when the Fiduciaries Act was approved. Under the old law
these items were an indefinite lien, but the Fiduciaries Act of June 7,
1917, P. L. 447, changed their status by including them as "debts" of a
decedent, and limiting the lien of decedent's debts to the period of one
year. A year having now elapsed since June 7, 1917, the claim for these
items lost its lien, and the real estate ceased to be liable. Cassady's Est.,
28 Dist. 37, 32 York 155.

Under Section 15 of the Fiduciaries Act of June /, 1917, P. L. 44". com-
mon debts, the costs of settling the estate, and the funeral expenses of a
decedent shall not remain a lien on the real estate of such decedent longer
than one year after the decease of such debtor, unless within said period
an action for the recovery thereof be brought against the executor or



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 34 of 71)