Raymond Moore Remick.

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

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a just and true account, upon oath or affirmation, of all the debts
of the decedent which have come to his knowledge.

NOTE. This is Section 33 of the Act of March 29, 1832, i Purd. 1118,
which, except for the provision as to a statement of the real estate, made
no change in the law, and was largely founded upon Section 20 of the
Act of April 19, 1794, 3 Sm. L. 143-

It is now changed by omitting the references to guardians and minors,
by omitting the provision as to bonds, in view of the general section on
that subject in this draft, and by omitting, as unnecessary or obsolete, the
proviso, which reads as follows : "Provided, That no real estate contained
in any marriage settlement shall, by virtue of this act, be sold or disposed
of, contrary to the form and effect of such settlement; and that the man-
sion house, or most profitable part of the estate, shall be reserved to the
last"

The provision as to rental value is new.

An enumeration of a debt in a petition for leave to sell real estate to
pay debts shows sufficient knowledge thereof to warrant judgment against
the administrator in an action of assumpsit In so holding the court said :

"The defendant sets up as a defense that she was unable to get suffi-
cient ^information to make a defense. This is undoubtedly a good defense
in some cases, but in the present case there is no merit in it. The defend-
ant had knowledge of the claim, and this is shown by the fact set forth
in the petition of plaintiffs for the rule, and not denied by defendant,
that the defendant had previously filed a petition in the Orphans' Court
of Philadelphia County for leave to sell real estate of the decedent for
the payment of debts, and among the debts enumerated therein was "claim
of Carmine Spinelli, No. 521 Carpenter street, $2,126.76" being the present
claim. This was done in accordance with the requirements of the Fiduci-
ary Act of June 7, 1917, par. (c ) P. L. 480, that the defendant set forth
"a just and true account, upon oath or affirmation, of all of the debts of
the decedent which have come to his knowledge," and the orphans' court,
upon this information, granted the order of sale. In addition to this,
defendant herself, since the death of her husband, has paid the interest
on the mortgages of which the decedent received the principal, which he
appropriated to his own use. Under these circumstances, it does not now
lie in the mouth of the defendant to say she has no knowledge of plain-
tiffs claim." Spinelli v. Costello, 30 Dist. 411.

435. REFUNDING MORTGAGES.

(d) When a mortgage authorized under the provisions of this
section shall fall due or shall be about to fall due, the orphans'
court which authorized such mortgage may, on the application of
the executor or administrator or of any party in interest, and al-
though the period of the lien of the decedent's debts may have
expired at the time of such application, authorize the refunding



FIDUCIARIES ACT SECTION 16 (rf), (<?), (/) 335

of such mortgage and the making of a new bond and mortgage,
the proceeds of which may be used for the payment and satisfac-
tion in whole or in part of the said existing mortgage and neces-
sary expenses. Such new mortgage may be for such period and
on such terms as to said court shall deem advisable.

NOTE. This clause is introduced to cover a case which has arisen in
practice, and in which the jurisdiction of the courts is at present doubtful.

436. APPOINTMENT OF MASTER.

(e) In all cases where an application shall be made to the court
for a decree authorizing the sale or mortgage of real estate under
the provisions of this section, the court may appoint a suitable
person as master to investigate the facts of the case, and to report
upon the expediency of granting the application, and the amount
to be raised by such sale or mortgage ; and upon such report being
made, the court may decree accordingly.

NOTE. This is Section 34 of the Act of 1832, i Purd. 1119, which was
new in the Act of 1832. A master is now provided for instead of one or
more auditors, and the phraseology has been modified.

437. BOND OF PERSON CARRYING OUT DECREE.

(/) In all cases where the carrying out of any decree of the
orphans' court under the provisions of this section shall involve
the receipt of money by the person carrying it out, the court shall
direct the person acting under the decree to file a bond to the com-
monwealth in a sufficient amount conditioned for the proper appli-
cation of all moneys to be received, which bond shall inure to the
benefit of all parties interested and be executed by two individual
sureties or by one corporate surety, approved by the court, and no
such decree shall be executed until such bond, with sureties as may
be required, shall be filed: Provided, That where a corporation,
duly authorized by law, shall be designated to carry out any such
decree, the court may, in lieu of security as aforesaid, permit such
corporation to enter its own bond without surety.

NOTE. This section is founded on Section 43 of the Act of February
24, 1834, i Purd. 1 122, the proviso to Section 4 of the Price Act, 4 Purd.
4022, and Section 5 of the Act of April 3, 1851, I Purd. 1120. The proviso
is new.

Where a bond has been entered in accordance with the Act of June 7,
1917, P. L. 447, after the orphans' court has decreed a sale of a decedent's
real estate, a second bond need not be ordered in a decree for a resale,



336 FIDUCIARIES ACT SECTION 16 (/), (g) .

as the one already entered will cover the proceeds of the second sale. In
so holding, SCHAFFEK, J., said:

"One of the errors complained of is that, upon a resale of the property
ordered by the court, no bond was given. The assumption of the appel-
lant is, and he so presents his cause to us, that the court ordered an addi-
tional bond on the resale; an examination of the record discloses no
such order made. When the first sale was decreed, a bond was directed
to be given in accordance with the Act of June 7, 1917, P. L. 447 (at page
480), which provides that no decree of sale shall be executed until a bond
shall be filed. The first sale was set aside on petition of the appellant, on
account of inadequacy of price; on the second sale, no new bond was
ordered or given, for the all-sufficient reason that the bond already on file
covered the purchase money realized by this sale, just as it did the pro-
ceeds of the first one." Randall's Est, 269 Pa. 530, 112 Atl. 780.

438. PUBLIC NOTICE OF SALE.

(g) Whenever, by the provisions of this section, it shall be
lawful for the court to order the public sale of real estate, public
notice of such sale shall be given by the person who is to make the
sale, once a week for a period of three weeks before the day ap-
pointed therefor, by advertisement in at least one newspaper pub-
lished in the county, if there be one, or, if there be none, then in
an adjoining county; and in all cases, notice shall also be given
by handbills, one of which shall be posted at a conspicuous place
on the real estate proposed to be sold, and at least three of which
shall be posted at three of the most public places in the vicinity of
such estate.

NOTE. This is Section 54 of the Act of March 29, 1832, i Purd. 1121,
with the omission of the word "orphans' " in line 2, and the words, "execu-
tor, administrator or guardian, as the case may be," the substitution of
"once a week for a period of three weeks" for "at least twenty days,"
and the substitution of "person" in line 4, and the insertion of the pro-
vision as to posting on the premises. The section was new in the Act
of 1832.

"This takes the place of Section 54 of the Act of March 29, 1832, P. L.
190, which provided that public notice of the sale should be advertised
"at least twenty days before the day appointed therefor." What is meant
by "once a week for a period of three weeks"; what does it prescribe and
circumscribe? Manifestly twenty-one days is not intended, for if it had
been the words twenty-one days would have been used as "twenty days"
were in the Act of 1832. This is a legitimate inference from the fact that
the later act follows literally the earlier one. Quite as improbable is it
that the equivalent of twenty-one days, or three weeks, is intended ; for
if so the sentence would not have been decorated with the words "a pe-
riod of." The gentlemen who framed the Fiduciaries Act of 1917 are
lawyers and scholars, and judicious brevity and judicial finish mark their



FIDUCIARIES ACT SECTION 16 (g), (h), () 337

excellent accomplishment. It follows that the words "a period of" were
intended to have as they do a significantly qualifying effect. By referring
to the dictionaries it will be seen that the word "period" is a Greek deriva-
tive. The word is a compound of two Greek words, the first meaning
"round about," the other "a way." Among the definitions given are "a
portion of time as limited and determined by some recurring phenome-
non" ; "a stated and recurring interval of time ; more generally, an interval
of time specified or left indefinite." The definition which apparently was
in the mind of the commissioners and which has a rational application is
"a division of time in which something is completed." Without fear of
contradiction it can be said that it has not been enacted that the notice
shall have been advertised for three weeks, or twenty-one days, before the
day of the sale. If a sale has been advertised within a period of each of
three weeks preceding the day appointed therefor and the sale has been
completed within a period of three weeks, the provision of the act has not
been violated; and that was done in this case, though only twenty days
had elapsed. Certainly it was advertised "round" or "about" three weeks.
The words "a period of" were not incorporated heedlessly, without de-
sign; and if the interpretation given misses their purpose, what were they
for? They ease the confining condition of the act of 1832 and allow a
latitude which permits of enough room to avoid a shock to common sense
and save the court a gibe of being a red-tape institution.

Per SMITH, P. J., in Bowman's Est., 47 Pa. C. C. 405, 28 Dist. 766, 67 P.
L. J. 321, 36 Lane. Rev. 121, 33 York 2, wherein it was held that under
this section of the Fiduciaries Act which provides that a public sale of
real estate shall be advertised "once a week for a period of three weeks"
an advertisement within a period of each of three weeks is sufficient al-
though covering only twenty days prior to the sale and in a petition
to sell real estate of a decedent for payment of debts it is not necessary
to set forth all the parties interested or the names of husbands or
guardians of those who are married or minors.

439. SECURING UNPAID PURCHASE MONEY.

(h) Whenever, under the provisions of this section, the court
has power to authorize or confirm a sale of real estate, the same
may be made upon such terms as the court shall approve, all unpaid
purchase money to be secured on the premises by mortgage.

NOTE. This is derived in part from Section 4 of the Price Act, 4 Purd.
4022, and is intended to supersede Section i of the Act of March 22, 1859,
P. L. 207, 3 Purd. 3386, relating to sales on credit, which is recommended
for repeal.

440. ACKNOWLEDGMENT OF DEEDS AND MORT-

GAGES.

(i) All deeds or mortgages executed in pursuance of any decree
of the court under the provisions of this section may be acknowl-
edged before any officer or person now or hereafter authorized by

22



338 FIDUCIARIES ACT SECTION 16 (), 0"),

the laws of this commonwealth to take the acknowledgment of
deeds and other instruments of writing to be recorded therein.

NOTE. This clause is designed to make the law relating to the acknowl-
edgment of instruments executed under the authority of the section similar
to the general law prevailing in such cases. There seems to be no -reason
now for making any special distinction as to the acknowledgment of such
instruments.

441. REMOVAL OR INCAPACITY OF FIDUCIARY,
BEFORE CONVEYANCE OR MORTGAGE.

(/) i. In all cases where the sale of real estate shall be made
by an executor or administrator under an order of, or confirmed
by, the orphans' court, or where the making of a mortgage by such
executor or administrator shall be authorized by said court, under
the provisions of this section, and the letters testamentary or of
administration shall be revoked, or the executor or administrator
shall be removed by the court, or shall die, or become insane, or
otherwise be incapable, before a conveyance is made to the pur-
chaser, or before a mortgage is executed and delivered, it shall be
lawful for the successor of such executor or administrator, having
first given security, to be approved by the said court, for the faith-
ful appropriation of the proceeds of such sale or mortgage, to
execute and deliver to the purchaser a deed of conveyance for the
estate so sold, on the purchaser's full compliance with the terms
and conditions of sale, or to execute and deliver said mortgage.
If there shall be no such successor who shall have given security
as aforesaid, the said court shall have power, on petition of the
purchaser, to direct the clerk of the court to execute and deliver
to the purchaser the necessary deed of conveyance, on his full
compliance with the terms and conditions of sale, paying into court
the moneys payable, and executing and delivering to the clerk any
bond and mortgage required by the said terms and conditions,
which moneys and bond and mortgage shall remain subject to the
disposition of the court ; or, where the making of a mortgage by
an executor or administrator shall be authorized by said court,
the court, under the circumstances aforesaid, shall have power to
direct the clerk of the court to execute and deliver such mortgage.
The like proceedings may be had where an executor or adminis-
trator shall neglect or refuse to execute and deliver such deed or
mortgage for the space of thirty days after due notice of an order
of the court requiring him to execute and deliver the same.



FIDUCIARIES ACT SECTION 16 (/) i, 2, 3 339

NOTE. This is founded on Section 47 of the Act of March 29, 1832,
I Purd. H2I (Section 35 of the Commissioners' Draft), which was de-
rived from the Act of April 2, 1802, 3 Sm. L. 499.

In the present draft, a provision as to revocation of letters has been
added, the section has been extended so as to include mortgages, and the
provision that deeds made in pursuance of the section shall vest the prop-
erty as effectually as if made by the persons who sold the property has
been omitted, being covered by a later clause. The words "the said court
shall have power" have been substituted for "it shall be the duty of the
said court," and "bond and mortgage" for "sureties."

The words "within three months after such sale" have been omitted
before "there shall be no such successor," since there seems to be no reason
why proceedings should be delayed for three months.

Section i of the Act of May 22, 1878, P. L. 83, 4 Purd. 4035, provides for
cases where the fiduciary dies before execution of a deed, and authorizes
the court to direct the clerk to deliver a deed, without limiting this author-
ity to cases where there is no successor. It is recommended that this be
repealed, as superseded by the provisions of the section as redrafted.

442. WHERE THERE ARE CO-FIDUCIARIES.

2. In all cases where the sale of real estate shall be made by co-
executors or co-administrators under an order of, or confirmed by,
the orphans' court, or where the making of a mortgage by such
co-executors or co-administrators shall be authorized by said court,
under the provisions of this section, and one $r more of such co-
executors or co-administrators shall be removed by said court, or
shall die, or become insane, or otherwise be incapable, before a
conveyance is made to the purchaser, or before such mortgage is
executed and delivered, said court may, upon the facts being made
to appear by petition duly verified, authorize the surviving or re-
maining executor or executors, administrator or administrators, to
execute and deliver to the purchaser a deed of conveyance for the
real estate so sold, on the purchaser's full compliance with the
terms and conditions of sale, or to execute and deliver such mort-
gage.

NOTE. This is Section i of the Act of May i, 1861, P. L. 431, I Purd.
1123, amended so as to conform to the changes made in the last preceding
clause, and so as to provide for an order of the court.

443. BEFORE SALE.

3. Where authority is or shall be given by decree of any orphans'
court to executors or administrators to sell real estate, under the
provisions of this section, and any of such executors or adminis-
trators shall have died, been removed, become insane or otherwise



340 FIDUCIARIES ACT SECTION 16 (;) 3, 4, 5 .

be incapable, or cease to act, before a sale is effected, in all such
cases, said court may, upon the facts being made to appear by
petition duly verified, authorize the surviving or remaining execu-
tor or executors, administrator or administrators to effect such
sale with as full effect in all particulars, as if effected or executed
by the executors or administrators in office at the time the sale
was originally decreed.

NOTE. This is the latter part of Section 2 of the Act of May i, 1861,
P. L. 431, i Purd. 1123. The first part of that section provides for cases
where sale had been made before the passage of the act; this seems un-
necessary now.

The part which is retained provides for cases where any trustee "or
other person" authorized to sell real estate had died, etc.; and the last
line reads "persons acting in the trust, or other office, at the time a sale
was originally decreed." The meaning of the words "other person" and
"other office" is not clear. They probably refer to executors and admin-
istrators, and have been so considered in the present draft The provision
for an order of court is new.

The last sentence of the section is omitted here, being covered by a
subsequent clause.

444. EFFECT OF SALE, DEED OR MORTGAGE.

4. Every sale made, and every deed or mortgage executed and
delivered in pursuance of, and agreeably to the provisions of this
section shall vest the property therein described in the grantee or
mortgagee, as fully and effectually as if the same had been made,
executed and delivered by all the executors or administrators to
whom the authority to sell or mortgage was originally given.

NOTE. This is derived from parts of Section 47 of the Act of March
29, 1832, i Purd. 1 121, and Sction 2 of the Act of May i, 1861, P. L. 431,
i Purd. 1123. The provisions are here extended to mortgages.

445. REVOCATION OF LETTERS, OR REMOVAL OF

FIDUCIARY AFTER SALE.

5. In all cases of sales or mortgages under the order of, or con-
firmed by the orphans' court, under the provisions of this section,
the title of the purchaser or mortgagee shall not be affected by the
subsequent revocation of the letters testamentary or of adminis-
tration of the executor or administrator making such sale or
mortgage, or by the subsequent removal of the executor or
administrator making such sale or mortgage.

NOTE. This is the first part of Section 16 of the Act of April 9, 1849,
P. L. 527, i Purd. 1123, extended to include mortgages, with the substi-



FIDUCIARIES ACT SECTION 16 (/) 5, 6, (Jfe) 341

tution of "or" for "and" before "confirmed," and with the addition of the
last part, beginning "or by the subsequent removal."

In the first line, the words "bona fide," before "sales," have been omitted
as unnecessary.

The last part of that section provides that purchasers at orphans' court
sales shall have a right to proceed to obtain possession in the same man-
ner as is provided by law as to purchasers at sheriffs' sales. This seems
unnecessary now, in view of the Act of April 20, 1905, P. L. 239, 5 Purd.
6100, providing a proceeding for the obtaining of possession by "purchasers
at judicial sales of real estate in this commonwealth."

446. EFFECT OF IRREGULARITY OR DEFECT IN

APPOINTMENT.

6. Whenever, in pursuance of proceedings in the orphans' court
or any county under the provisions of this section, any person
therein described as an executor or administrator shall grant and
convey or mortgage any real estate, in which proceedings security
shall be duly entered by him or her, under the order or decree of
the court, no irregularity or defect in his or her original appoint-
ment, or the absence of any proper qualification in respect thereto,
shall affect the title of the grantee or purchaser, or the liability of
the sureties, but the same shall be as valid in all respects as if such
irregularity or defect had not existed.

NOTE. This is Section i of the Act of April 28, 1876, P. L. 50, 4 Purd.
4033, extended to include mortgages. The words "or personal" have been
omitted before "estate" in line 5, and the words "liability of the sureties"
substituted for "security so entered," before "but the same shall be as
valid."

The proviso, excluding adjudicated and pending cases, has also been
omitted.

447. CONVEYANCE OR MORTGAGE WHERE FIDU-

CIARY IS PURCHASER OR MORTGAGEE.

(&) Whenever any orphans' court, having jurisdiction under
this section to decree a sale or mortgage of real estate, shall issue
its order to any executor or administrator to sell or mortgage such
real estate, and shall, in any case within its jurisdiction, give au-
thority to any executor or administrator to bid at such sale, and
shall confirm the sale to such fiduciary, or shall authorize the mak-
ing of such mortgage to any executor or administrator, the said
court may make an order directing its clerk to execute a deed or
mortgage, as the case may be, for said real estate to such pur-
chaser or mortgagee, who shall give security and shall account



342 FIDUCIARIES ACT SECTION 16 (Jfe), (0 i

for the amount of said purchase money or mortgage money, in
the settlement of his accounts, to said court.

NOTE. This is Section 2 of the Act of May 22, 1878, P. L. 83, 4 Purd.
4035, modified so as to cover mortgages as well as sales of real estate,
and with some changes in phraseology.

Section 3 of the Act of 1878 validated conveyances theretofore executed
by clerks.

Section 45 of the Act of February 24, 1834, i Purd. 1122, providing for
refunding bonds by kindred of the decedent on distribution of the proceeds
of a sale of real estate, is recommended for repeal, Section 41 of the act,
providing for refunding bonds upon distribution of the personal estate,
having been omitted in the present draft.

448. REAL ESTATE IN OTHER COUNTIES, REAL
ESTATE IN COUNTY OTHER THAN THAT
THE ORPHANS' COURT OF WHICH HAS
JURISDICTION OF ACCOUNTS.

(/) i. When the real estate, with respect to which application
shall be made to the orphans' court having jurisdiction of the ac-
counts of the executor or administrator, in cases of sales or mort-
gages for the payment of debts of decedents under clause (&) of
this section, is situated in the same county, the said court may
order the sale or mortgage of such part or so much of such real
estate as to them shall appear necessary. When the real estate is
situated wholly in another county or counties, and the orphans'
court to which such application shall be made shall be satisfied of
the propriety of a sale or mortgage of some portion of such real
estate not within their jurisdiction, it shall be lawful for such
court to make a decree authorizing the raising of so much money
as the said court may think necessary, from real estate situated in
such county or counties as they may designate ; and thereupon it
shall be the duty of the orphans' court of the county wherein the
real estate so designated is situated, upon the petition of such
executor or administrator, to make an order for the sale or mort-
gage, as they shall think expedient, of so much and such parts of
such real estate as shall, in their opinion, be necessary to raise the
specified sum ; and such executor or administrator shall in all
cases make return of his proceedings, in relation to such sale or
mortgage, to the orphans' court of the county in which the real
estate so sold or mortgaged lies: Provided, That where the or-
phans' court to which such application shall be made shall make a
decree authorizing the raising of money from real estate which is
wholly without the county where such application shall be made



FIDUCIARIES ACT SECTION 16 (/) i, 2 343

and is divided by a county line, the further proceedings shall be



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 36 of 71)