Raymond Moore Remick.

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

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administrator of such decedent, and such action be indexed, within said
period, against the decedent, and such executor or administrator in the
judgment index in the county in which such action is brought, and also in
the county in which such real estate sought to be charged is situate, and be
duly prosecuted to judgment; however, in the case of a decedent who
died before the passage of said act, the lien of such debts, was preserved
by bringing and indexing such action within one year after the passage of
the act Gibb's Est., 30 Dist. 128, 34 York 29.

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 col-
lection 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



FIDUCIARIES ACT SECTION 15 (a), (6) 325

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 afterwards to apply the rents from the real estate to the pay-
ment of his claim. Kearney's Est., 30 Dist. 75.

Testator provided that his residuary estate, real, personal and mixed, was
to be sold by his executors and the proceeds divided in varying proportions
among certain legatees. More than a year after his death some of his
real estate was sold by the executors and the proceeds brought into their
account, which showed the estate was insolvent : Held, That debts for which
no action had been brought within one year from the date of the death, as
required by the Fiduciaries Act of June 7, 1917, P. L. 447, were entitled
to share in the proceeds of the real estate so sold pro rata with those for
which suit had been brought on the ground that there had been a con-
version of the real estate. Hoch's Est., 48 Pa. C. C. 149, 28 Dist. 416, 68
P. L. J. 207, 37 Lane. 98.

419. DEBTS NOT DUE WITHIN ONE YEAR; PRO-
CEDURE TO ACQUIRE AND CONTINUE LIEN.

(b) No bond, covenant, debt or demand which is not payable
within the said period of one year after the decease of the debtor,
shall remain a lien upon the real estate of such decedent longer
than one year after his death, unless, within said period after his
decease, a copy or particular written statement thereof be filed in
the office of the prothonotary of the county where the real estate
to be charged is situate, and be indexed against the decedent and
the executor or administrator in the judgment index in the county
where the executor or administrator resides and also in the county
in which the real estate sought to be charged is situate ; and then
to be a lien only for the period of one year after the said bond,
covenant, debt, or demand becomes due, unless within said period
of one year an action for the recovery thereof be brought, indexed
and duly prosecuted to judgment as provided in clause (a) of this
section. Provided, That when such bond, covenant, debt, or de-
mand does not become due within five years from the date of the
death of such decedent, a renewal of the entry of such action
upon the judgment index as aforesaid, shall, upon the order of the
plaintiff or his attorney duly filed in said prothonotary' s office, be
noted on said index within every recurring period of five years,
otherwise the same shall cease to be a lien. 1

NOTE. This is founded upon those provisions of Section I of the Act of
May 3, 1909, omitted from Clause (a).

x The portion in italics added by Amendment of May 2, 1919, (P. L. 104).



326 FIDUCIARIES ACT SECTION 15 (fe), (c)

The petitioner's claim to the rents from the real estate, based upon the
Fiduciaries Act of June 7, 1917, P. L. 447, under the provisions of Section
14, which makes rents accruing after the death of the owner of such real
estate assets for payment of debts when the personal estate is insufficient
and for the collection of the same by the personal representatives, does not
come within the exception provided by Clause (fr) as amended by the Act
of May 2, 1919, P. L. 104, Kearney's Est., 30 Dist. 75.

420. PROVISIONS OF CLAUSE (A) TO BE RETRO-
ACTIVE; SAVING CLAUSE.

(c) The provisions of clause (a) of this section shall be retro-
active: Provided, however, That in case of any bond, covenant,
debt, or demand that would be sooner barred, an action for the
recovery thereof may be commenced within one year after the
passage of this act, in manner as provided in clause (a) of this
section.

NOTE. This is Section 2 of the Act of June 14, 1901, P. L. 562, I Purd.
1108, modified in phraseology.

Where a decedent died May 23rd, 1916, the unsecured debts will not ex-
pire or be barred as to lien against the real estate before the 7th of June,
1918, under the provisions of Section 15 (a) and (c) of the Act of 7 June,
1917, P. L. 447-

"In the present case the decedent died on the 23rd day of May, 1916.
Under the old statute, the time would expire on the 23rd day of May, 1918.
Under the new statute, death the 23rd day of May, 1916, one year from that
time was the 23rd day of May, 1917.

"Thus it appears that, under the new statute, the time would have expired,
if the retroactive clause would have been applied, without the provision
in it, on the 23rd day of May, 1917, and it would, therefore, have been
'sooner barred' than the date of the act, and the time given by the express
language of the act for the commencement of actions would be for one
year after the passage to wit : the 7th day of June, 1918, being the date of
expiration. We conclude, therefore, that these debts, so far as unsecured,
would continue liens not only to the 23rd day of May, 1918, which would be
ample time to make a sale in this case, but even the /th day of June, 1918,
the date of the act plus one year.

"The only estate's which this act affects, about which there can be any
doubt, are those of persons dying between the 7th day of June, 1915. and
the 7th day of June, 1917, the date of adoption of the Fiduciaries Act.
As to all persons dying on the 7th day of June, 1915, unsecured claims
against their estates would be barred at the time of the new act, and as to
persons dying after the 7th day of June, 1917, claimants have only one
year in which to bring suit. What 'retroactive,' therefore, means is that
the Act of the /th day of June, 1917, shall affect the estates of persons
dying between the 7th day of June, 1915, and the 7th day of June, 1917.
But the proviso in the act saves all claims which would be barred in less



FIDUCIARIES ACT SECTION 15 (c), (d), (*) 327

than a year from the date of its passage, or, in other words, what the act
means is that every unsecured creditor of any decedent dying on and after
the 7th day of June, 1915, has until the 7th day of June, 1918, to bring
suit. Per COPELAND, P. J. in Schcrrer's Est., 7 West. 109.

See also Olson's Est, 65 P. L. J. 571, 34 Lane. 397; Gibb's Est., 30 Dist.
128, 34 York 29; Cassady's Est., 28 Dist. 37, 32 York 155.

The Fiduciaries Act of June 7, 1917, P. L. 447, is not unconstitutional
because it is retroactive, so that a suit not brought against the estate of a
decedent, who had died prior to its enactment, within one year of decedent's
death, will not be a lien against decedent's real estate. Such lien would
have been valid had suit been entered within one year after June 7, 1917.

Myers v. Lohr, 66 P. L. J. 665, 19 Lack. 287, 8 Leh. 119, affirmed in
72 Super. 472.

421. INDEXING B Y PROTHONOTARY; FILING CER-

TIFIED COPY OF PR^CIPE IN OTHER
COUNTIES.

(d) It shall be the duty of the prothonotary of any county of
this commonwealth, when an action is brought or statement is
filed as aforesaid in his office, upon praecipe of the plaintiff or his
attorney, to index the same against the decedent, his executor or
administrator, and any other defendants therein, in the judgment
index, as other liens are indexed, and to certify the same as liens
in any certificate of liens that he may be required to make by
virtue of his office. The prothonotary of any court in which said
action may be brought, shall, upon request, furnish a copy of such
prsecipe, which, when duly certified, under the seal of the court,
may be filed in any other county of this commonwealth in which
the real estate sought to be charged with the debts of such de-
cedent may be situate, and when so filed shall be indexed, against
the parties named therein, upon the judgment index in such
county.

NOTE. This is the latter part of Section I of the Act of May 3, 1909,
P. L. 386, 5 Purd. 5891. The last part of the first sentence has been added
to cover the provisions of the Act of June 15, 1871, P. L. 387, 4 Purd.
4060, in so far as they relate to this subject.

See Myers v. Lohr, 72 Super. 472, affirming 66 P. L. J. 665, 19 Lack. 28,
8 Leh. 119.

422. EXECUTIONS ON JUDGMENTS OBTAINED

AGAINST EXECUTORS OR ADMINISTRA-
TORS; SCIRE FACIAS TO SURVIVING
SPOUSE, HEIRS, ETC.

(e) No execution for the levy or sale of any real estate of any
decedent shall be issued upon any judgment obtained in an action



328 FIDUCIARIES ACT SECTION 15 (<?), (/)

against his personal representatives under the foregoing clauses
of this section unless the surviving spouse and heirs and the
devisee, alienee or owner of the land sought to be charged, and the
guardians of such as are minors shall have been made parties to
such action, or, if they shall not have been so made parties,
unless they shall be warned by a writ of scire facias issued against
them on such judgment. If any of the parties reside outside of
the county, the court may, by general rule or special order, direct
service of such writ of scire facias by publication or otherwise.

NOTE. This is a new clause, inserted to take the place of Section 34 of
the Act of 1834, i Purd. 1113, now recommended for repeal, and declara-
tory of the law as laid down in the decisions from Murphy's Appeal, 8
W. & S. 165, Atherton v. Atherton, 2 Pa. 112, and Walthaur v. Gossar, 32
Pa. 259, 261, where Section 34 was termed "a bungling enactment," down
to McCormick v. Skelly, 201 Pa. 184.

423. JUDGMENTS NOT LIENS AT DEATH TO BE
TREATED AS DEBTS NOT OF RECORD;
METHOD OF CONTINUING LIEN.

(/) Judgments which were not liens on the real estate of the
decedent by entry or revival, by due process of law, within five
years prior to the death of such decedent, shall not be revived as
liens of record against real estate by the death of the defendant,
but shall rank and be treated simply as ordinary debts not of
record, and the lien thereof shall be continued after the expiration
of one year from the decease of such debtor only by writ of scire
facias to revive, issued within one year after the death of the
decedent, indexed as provided in clauses (a) and (d) of this
section, and 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 as provided in clause (a) of this section.

NOTE. This is Section 2 of the Act of May 3, 1909, P. L. 386, 5 Purd.
5892. It has been altered by inserting the words "of record" in line 4, and
the word "not" in line 6, the latter word having been omitted, apparently
by inadvertence, from the Act of 1909. The last part of the section has
been rewritten, in order to make it plain that such judgments are liens as
debts not of record for one year only, and that the mode of continuing the
lien is by sci. fa. and not by action of assumpsit on the judgment, as was
apparently provided by the Act of 1909.



FIDUCIARIES ACT SECTION 15 (p), (h) 329

424. JUDGMENTS WHICH ARE LIENS AT DEATH

TO BE LIENS FOR FIVE YEARS FROM
DEATH; REVIVAL.

(g) All judgments which at the time of the death of a dece-
dent shall be liens on real estate owned by said decedent at the
time of his death, or on real estate which shall have been conveyed
by deed not duly recorded during his lifetime, shall continue to
bind such real estate during the term of five years from his death,
although such judgments be not revived by scire facias or other-
wise after his death. Such judgments shall, during such term,
rank according to their priority at the time of such death, and
after the expiration of such term such judgments shall not con-
tinue liens on the real estate of such decedent unless revived by
scire facias or otherwise, according to the laws regulating the
revival of judgments. Any judgment against such decedent which
may be a lien upon real estate sold or aliened by such decedent
during his life may be revived by writ of scire facias, according
to law ; and, for the purpose of any such revival, the writ of scire
facias may be issued in the name of such decedent, with the same
force and effect as if it were issued in the name of his executors,
administrators, or legal representatives ; but, before any judgment
shall be entered thereon, the legal representatives shall be made
parties defendant, and a scire facias shall be served on such legal
representatives.

NOTE. This is Section 3 of the Act of May 3, 1909, P. L. 386, as amended
by the Act of May 14, 1915, P. L,. 475, 5 Purd. 5892. See Brubaker's Est.,
59 Pa. Superior Ct. 109.

425. EFFECT OF SECTION AS TO MORTGAGES AND

BONDS SECURED THEREBY.

(h) Nothing contained in this section shall in any way affect
or impair the lien of any mortgage given and executed and duly
recorded during the lifetime of any decedent; but the bond
secured by such mortgage, except as to real estate on which said
mortgage is a lien, shall be subject to all the provisions hereof.

NOTE. This is Section 4 of the Act of Msy 3, 1909, P. L. 386, 5 Purd.
5892.

Section 52 of the Act of July 16, 1842, P. L. 388, i Purd. 1109, provides,
in part: "In cases of intestacy, where the real estate of the decedent shall
be sold under an order of the orphans' court for distribution, before the
expiration of five years from the death of the intestate, the administrators
are authorized to apply the proceeds of such sale, whilst in their hands, to



330 FIDUCIARIES ACT SECTION 15 (/>), (i), (/)

the payment of debts and claims owing by the decedent, for which there
may not be other assets in hand * * * Provided, That if, before any such
payment be made, the distributees of the proceeds of such real estate, their
guardians or agents, shall * * * give written notice to such administrators,
objecting to such payment, then and in such case, this section shall not
justify the same, unless such real estate were or may be otherwise legally
liable to such payment." The omitted portions of the section related to past
cases. See 2 P. & L. Dig. of Laws, col. 2697, for the full text.

The meaning and purpose of the section are not clear, nor do the de-
cisions make them so. It is recommended that the section be repealed.

426. EXECUTIONS ON JUDGMENTS OBTAINED IN

DECEDENT'S LIFETIME.

(*) No execution for the levy or sale of any real or personal
estate of any decedent shall be issued upon any judgment obtained
against him in his lifetime, unless his personal representatives have
been first warned by a writ of scire facias to show cause against
the issuing thereof, notwithstanding the teste of such execution
may bear date antecedently to his death.

NOTE. This is a part of Section 33 of the Act of 1834, I Purd. 1113,
which corresponded, as to the first sentence, to Section 34 of the Commis-
sioner's Draft, and was new in the Act of 1834.

427. DISTRIBUTION OF PROCEEDS OF SHERIFF'S

SALE.

(;) In all cases where property, real or personal, of a decedent
is sold upon an execution, and more money raised than is suffi-
cient to pay off liens of record, the balance shall be paid over to
the executor or administrator for distribution; but before any
such payment shall be made, such executor or administrator shall
give bond, to the satisfaction of the court, conditioned for the
legal distribution of such money: Provided always, That such
money shall be distributed as the real estate of which it is the
proceeds would have been.

NOTE. This is the remainder of Section 33 of the Act of 1834. See
Fidelity Insurance Trust & S. D. Co. v. Sampson, 209 Pa. 214,

Under this section of the Fiduciaries Act, P. L. 447, where there is a
balance left in the sheriff's hands for distribution after the sale of real
estate payable to a fiduciary, the bond of the fiduciary must be entered in
the court of common pleas in which the fund has been raised; hence, the
orphans' court is without jurisdiction to fix the amount of the security.

This section of the Fiduciaries Act is a re-enactment of Section 33 of
the Act of February 24, 1834, P. L. 70, and the practice established under
the earlier act should be followed under the later.



FIDUCIARIES ACT SECTIONS 15 (/), (*), (/)-i6 (o) 331

Where the practice has been long settled under a statute prescribing the
mode of doing a certain act, a re-enactment of the statute in the same
words should be construed as approving and confirming the practice, un-
less it is entirely clear that such practice is defective in the very substance
of the requirements of the law. Catafesta's Est., 28 Dist. 304.

428. STAY OF EXECUTION UNTIL APPLICATION

TO ORPHANS' COURT FOR SALE OF REAL
ESTATE.

(&) In every case of an execution against the executors or ad-
ministrators of a decedent, whether founded upon a judgment
obtained against such decedent in his lifetime, or upon a judgment
obtained against them in their representative character, if it shall
be made to appear, to the satisfaction of the court issuing such ex-
ecution, that there is reason to believe that the personal assets
and the rents of real estate are insufficient to pay all just demands
upon the estate, such court shall thereupon stay all proceedings
upon such execution, until the executors or administrators shall
have made application to the proper orphans' court for the sale of
the real estate of the decedent, or for the apportionment of the
assets, or both, as the case may require.

NOTE. This is Section 35 of the Act of 1834, I Purd. 1114, with the ad-
dition of the words "and the rents of real estate," to conform to Section
14 of this draft. (See 417 supra.)

This and the next section were new in the Act of 1834.

429. ORDER ON EXECUTORS OR ADMINISTRA-

TORS TO APPLY TO ORPHANS' COURT.

(/) It shall be competent for the court, in the cases aforesaid,
on application of the plaintiff in such judgment, or of any other
person interested as heir, devisee or otherwise, to order the execu-
tors or administrators to make application to the orphans' court
for the purpose as is hereinbefore mentioned, and to enforce such
order by attachment.

NOTE. This is Section 36 of the Act of 1834, I Purd. 1114.

430. SALES AND MORTGAGES OF REAL ESTATE

FOR PAYMENT OF DEBTS OF DECEDENTS,
DUTY OF EXECUTOR OR ADMINISTRA-
TOR TO SELL REAL ESTATE WHERE PER-
SONAL ESTATE AND RENTS ARE INSUF-
FICIENT TO PAY DEBTS.

SECTION 1 6. (a) Whenever it shall satisfactorily appear to the
executor or administrator that the personal estate of the decedent,



332 FIDUCIARIES ACT SECTION 16 (a), (6) i

together with the rents of real estate, is insufficient to pay all just
debts and the expenses of the administration, he shall proceed,
without delay, in the manner hereinafter provided, to sell or
mortgage, under the direction of the orphans' court having juris-
diction of his accounts, so much of the real estate as shall be nec-
essary to supply the deficiency.

NOTE. This is Section 20 of the act of February 24, 1834, I Purd. 1116.
The first part requires executors and administrators to proceed to sell
real estate for payment of debts. The last clause was copied from Section
21 of the Act of April 19, 1794, 3 Sm. i,. 143.

The provision as to rents is new, and is inserted because of the pro-
vision of Section 14 (see 417 supra) of the present draft, making rents
assets for the payment of debts. "In the manner hereinafter provided" is
substituted for "In the manner provided by law." "Or mortgage" is in-
serted after "to sell."

At the end, the following words are omitted: "and such real estate so
sold shall not be liable in the hands of the purchaser for the debts of the
decedent" This is covered by clause (o) of the present section of the
draft. (See 454 infra.)

Where executors are proceeding without delay under Section 16 of the
Fiduciaries Act to sell real estate for the payment of debts, it appearing
satisfactorily to them that the personal estate is insufficient to pay the debts,
the petition for such sale will have priority over a petition for partition
filed by the husband and heir.

Young's Est (No. i), 28 Dist 814, 67 P. L. J. 315.

431. POWER OF ORPHANS' COURT TO AUTHORIZE

SALE OR MORTGAGE OF REAL ESTATE.

(fc) The orphans' court which possesses jurisdiction of the
accounts of an executor or administrator shall have power to
authorize a sale or mortgage of real estate by such executor or
administrator in the following cases, viz. :

432. ON APPLICATION OF EXECUTOR OR ADMIN-

ISTRATOR.

i. On the application of the executor or administrator, setting
forth that the personal estate and the rents of real estate of the
decedent are insufficient for the payment of debts.

NOTE. This is the introductory part, with clause I, of Section 31 of the
Act of March 29, 1832, i Purd. 1116. The words "or guardian" have been
omitted after "administrator" in the second line. The provision as to rents
has been inserted for the reason stated in the last preceding note.

At the end, the following words have been omitted: "and maintenance
and education of his minor children, or for the purpose of paying the debts



FIDUCIARIES ACT SECTION 16 (&) i, 2, (e) 333

alone." The subject of maintenance and education of children is covered
by the revised Price Act.

For the same reason, clause III of Section 31 of the Act of 1832 is now
omitted. That clause reads : "On the application of a guardian, setting
forth that the personal estate of the minor is insufficient for his mainte-
nance and education, or for the improvement and repair of other parts of
his real estate, or that the estate of said minor is in such a state of dilap-
idation and decay, or so unproductive and expensive, that it would be to
the interest and benefit of said minor, in the judgment of said court, that
the said estate should be sold ; and the orphans' court of the county where-
in any such real estate may be situate, shall have the same authority to
direct a sale in this latter case as in the cases particularly mentioned in
Section 32 of this act."

The Commissioners of 1830 reported that, in Section 31 (Section 32 of
their draft), they had collected all existing provisions giving jurisdiction
to authorize a sale of real estate by an executor, administrator or guardian.
Clause I was derived from Section 19 of the Act of April 19, 1794, 3 Sm.
L. 143, amended by the Act of April 8, 1826, P. L. 255. Clause II was
founded on Section 2 of the Act of April i, 1811, P. L,. 198. Clause III
was derived from Section 10 of the Act of April 7, 1807, P. L. 155.

433. ON APPLICATION OF EXECUTOR OR ADMIN-

ISTRATOR OR CREDITOR.

2. On the application of such executor or administrator, or of
any creditor of the decedent, setting forth that on the final settle-
ment of the administration account, it appears that the personal
assets together with the rents of real estate of the decedent are
insufficient to pay the balance appearing to be due from the estate
of such decedent, either to the accountant or creditors.

NOTE. This is clause II of Section 31 of the Act of March 29, 1832,
i Purd. 1118, with the substitution of "creditor of the decedent" for
"person interested" in the second line, and the addition of the provision
as to rents of real estate.

434. INVENTORY, STATEMENT OF REAL ESTATE
AND ACCOUNT OF DEBTS TO BE FILED.

(c) No authority for the sale or mortgage of real estate, for
the payment of debts of a decedent, shall be granted until the
executor or administrator shall have exhibited to the court having
jurisdiction of his accounts a true and perfect inventory and con-
scionable appraisement of all the personal estate whatsoever of the
decedent, together with a full and correct statement of all the real
estate of such decedent, wherever situated, which has come to his
knowledge, and of the rental value of such real estate ; and also



334 FIDUCIARIES ACT SECTION 16 (c), (d) .



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 35 of 71)