Raymond Moore Remick.

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

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in the orphans' court of the county where the mansion house is
situated, or, if there be no mansion house, in the county where the
principal improvements are, or, if there be no improvements, in
either county.

NOTE. This is Section 32 of the Act of March 29, 1832, i Purd. 1118,
which was new in that act. Some changes have been made in phraseology.
The words "or in the same and another county or counties" have been
omitted after "when the real estate is situated wholly in another county
or counties" in the second sentence, the case of real estate divided by a
county line being covered by the proviso and by subsequent clauses. The
provision as to confirmation of sale has been omitted, being covered by a
general section below. The proviso is new.

It has been held that Section 32 of the Act of 1832 was not repealed by
the Price Act : Burkhart's Appeal, i Mona. 474.

449. REAL ESTATE DIVIDED BY COUNTY LINE.

2. When application shall hereafter be made to the orphans'
court having jurisdiction of the accounts of any executor or ad-
ministrator for leave to sell or mortgage the real estate of a de-
cedent or any part of the same for the payment of debts of such
decedent under the provisions of this section, and any part of said
real estate is situated partly in the county where said application
shall be made and partly in one or more other counties, by reason
of a county line or lines running through the same, the said court
shall have power to order and direct the sale or mortgage of the
whole or any part of said tract of land, irrespective of the county
boundary lines, and such sale or mortgage shall be as effectual to
pass the title of such real estate to the purchaser or mortgagee as
if the whole of said tract of land had been within the boundaries
of the county having jurisdiction of the accounts of the executor
or administrator. Notices of said sale or mortgage, as required
by this section, shall be given in all the counties in which the land
is situated, and a certified copy of all proceedings in connection
with said sale or mortgage shall be filed in the orphans' court of
each county in which said land is situated. Any mortgage taken
by such executor or administrator to secure the purchase money,
or any part thereof, shall be duly recorded in each of the counties
in which said lands lie, as now required by law.

NOTE. This is a combination of Section i of the Act of June 4, 1883,
P. L. 65, i Purd. 1 121, relating to sales by executors or administrators,
and Section i of the Act of May 21, 1901, P. L. 272, 3 Purd. 3387, relating
to sales by guardians. The word "proper" has been omitted before "or-



344 FIDUCIARIES ACT SECTION 16 (/) 2, (m) i, 2

phans' court" in the second line. The references to confirmation and re-
turn of sale and to judgments and other obligations have been omitted.
The Act of June 7, 1901, P. L. 513, I Purd. 1123, validating previous
sales, may be allowed to stand.

450. PRIVATE SALES, WHEN AUTHORIZED.

(m) i. The orphans' courts of the several counties of this com-
monwealth, in all cases where, under the provisions of this section,
such courts have power to order the sale of real estate, may au-
thorize or direct a private sale, if, in the opinion of the court, under
all the circumstances, a better price can be obtained at private than
at public sale, as where the interest shall be undivided, or for any
other sufficient cause.

NOTE. This is Section i of the Act of May g, 1889, P. L. 182, i Purd.
1121, altered by substituting "under the provisions of this section" for
"under existing laws," by omitting, after "the sale of real estate" the words
"for the payment of the debts of decedents and for other purposes," and
by substituting "authorize or direct" for "decree and approve."

Before this act, the court had no jurisdiction to decree a private sale
for the payment of debts: Miller v. Spear, 21 W. N. C. 554; McPherson
v. Cunliff, ii S. & R. 422.

Section 2f of the Act of May 21, 1901, P. L. 272, 4 Purd. 4034, authoriz-
ing private sales "for the payment of debts of a ward and for other
purposes," is also covered by the present section and should be repealed.
What was meant by sales "for the payment of debts of a ward" is not
clear, no previous act having authorized such sales.

451. PUBLIC NOTICE.

2. Before authorizing or directing any private sale of real estate
for payment of debts of a decedent, public notice thereof shall be
given by advertisement printed in at least one newspaper, published
in the county where such real estate is situated, once a week for a
period of three weeks prior to the date fixed by such order for
authorizing or directing such sale; and also written or printed
notices, 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
real estate; and, before authorizing or directing such sale, the
court shall require proof, by affidavit to be filed in the proceeding,
that notice as aforesaid has been given. Such notice shall specify
the location and description of the real estate proposed to be sold,
the name of the proposed purchaser and the price agreed to be paid.



FIDUCIARIES ACT SECTION 16 (m) 2, 3 345

NOTE. This is founded on Sections i and 2 of the Act of June 9, 191 1,
P. L. 724, 6 Purd. 7037, and the amendment of June 12, 1913, P. L,. 470,
6 Purd. 7037.

The changes made are to substitute "authorizing or directing" for "au-
thorizing, decreeing, or approving," to omit the provision for advertise-
ment in the legal periodical, to change "for at least twenty days" to "once
a week for a period of three weeks," and to add the last sentence.

452. OBJECTIONS TO SALE.

3. On the day fixed by such order and notice for authorizing or
directing such private sale, any creditor of such decedent, or party
interested as heir, devisee or intending purchaser, or any legatee
whose legacy is, by the express terms of the will, or by law,
charged on such real estate, may appear and object to such private
sale on account of the insufficiency of the price, and, if such ob-
jection be sustained, may offer to give or pay a substantial increase
for such property, and the court, at its discretion, may thereupon
authorize or direct such sale, or refuse to authorize or direct the
same, and accept any substantially increased offer, and may author-
ize the sale of such property to such new bidder upon compliance
with the conditions of sale and giving such security as shall be
directed by the court ; or, such creditor, party interested or legatee
may appear as aforesaid and object to such sale on any legal or
equitable grounds : Provided, That nothing herein contained shall
be construed to affect the existing law with respect to objections
to public sales.

NOTE. This is founded on Section 3 of the Act of June 9, 1911, P. L.
724, 6 Purd. 7037.

The provision as to legacies charged on land is new, as is the provision
for objection to the sale on grounds other than insufficiency of price.
Several changes have also been made in the phraseology.

Section 4 of the Act of 1911 (6 Purd. 7037) validated sales previously
made under the Act of 1889, and need not be reenacted. The same is
true of the Acts of April 4, 1901, P. L. 66, I Purd. 1121, and April 10,
1915, P. L. 112, 6 Purd. 7289, and the Act of July 21, 1913, P. L. 871,
5 Purd. 5893, validating sales and mortgages made under order of the
orphans' court.

Under the language of the Fiduciaries Act and the Revised Price Act
of 1917 relating to private sales of real estate, and the confirmation of
same, it is the duty of the court to accept any substantially increased offer
over that offered by the purchaser. As a matter of practice, offers should
be in writing accompanied by a certified check for the increase. It was
never intended that the parties should make oral bids in open court. In
so holding, STEWART, P. J., after reviewing the facts, said:



346 FIDUCIARIES ACT SECTION 16 (m) 3, (n), (o)

"Those sections are not found in the original acts, but under the old
acts, the court unhesitatingly set aside private sales for inadequacy of price.
**********

"We have no rule of court on this subject, nor do we find any in the
orphans' court rules of Philadelphia county, but in the case of Early's
Estate, 24 Pa. Dist. Rep. 153, Judge DALLETT ordered that a private sale
of property for $30,000 should be set aside and a public sale granted upon
the parties filing bond. In that case the private sale had been confirmed.
The application was to set it aside and the petitioner offered to pay $33,000
for the property. On the argument counsel for the first petitioner offered
$34i5oo. The deed had not been delivered, and the court made the above
order, putting the property up at public sale. In the present case the appli-
cation by Reuben was to have the property put up at public sale. We do
not think the increase offered justifies the expense of a public sale. It
may be necessary to formulate a rule of court upon this subject. It is
certainly irregular to permit oral bids as was done in this case, and in
Early's Estate." Mauch's Est, 47 Pa. C. C. 490, 67 P. L. J. 308, 33 York
45, 16 North. 405.

453. RETURN AND CONFIRMATION.

() All public sales of real estate under the provisions of this
section shall be subject to confirmation by the court; but in the
case of private sales authorized or directed under the provisions
of this section, no return or confirmation shall be necessary.

NOTE. This is a new section, introduced in order to make the practice
uniform and free from doubt.

Where authority is given to a fiduciary to make public sale of real es-
tate, obviously the fiduciary should make return of his doings to the court
and have the sale confirmed ; but the same reason would not apply where,
as in the case of a private sale, the price and terms of sale and the name
of the purchaser appear in the petition. The court having approved the
sale and directed that it be carried out, it seems unnecessary for the fidu-
ciary to report to the court and obtain a confirmation of what he was in-
structed to do.

454. DISCHARGE OF LIENS.

(o) All public or private sales of real estate under the provi-
sions of this section shall have the effect of judicial sales as to the
discharge of liens upon the real estate so sold : Provided, That the
court may decree a sale of the real estate freed and discharged from
the lien of any mortgage otherwise preserved from discharge by
existing law, if the holder of such mortgage, by writing filed in
said court, shall consent to the sale being so made.

NOTE. The first part is declaratory of the existing law. As to the ef-
fect of private sales for the payment of debts in discharging liens, see
O'Brian v. Wiggins, 14 Pa. Superior Ct. 37.



FIDUCIARIES ACT SECTIONS 16 (o), (p)-i? (a), (&) 347

A public sale of real estate under the provisions of this act may well
stand on the same footing as a sheriff's sale so far as the discharge of
record liens is concerned; and a private sale of real estate for the payment
of debts is by the terms of this section subject to equivalent formalities
of procedure.

The proviso is derived from Section 2 of the Act of May 19, 1893, P. L.
no, i Purd. 1185.

455. PURCHASER NOT BOUND TO SEE TO APPLI-

CATION OF PURCHASE MONEY.

(/?) Whenever a public or private sale of real estate shall be
authorized or directed by any orphans' court under the provisions
of this section, the person or persons purchasing the real estate so
sold and taking title thereto in pursuance of the decree of the
court, shall take such title free and discharged of any obligation
to see to the application of the purchase money.

NOTE. This is a new section, modeled upon Section i of the Act of
June 10, 1911, P. L. 874, 7 Purd. 7703, which related only to sales under
testamentary powers, and is the basis of Section 30 of the present draft.
(See 496 infra.) The Act of 1911 superseded Section 19 of the Act of
February 24, 1834, P. L. 70, i Purd. 1122, which provided for payment
of purchase money into court.

456. PROCEEDINGS TO RELIEVE REAL ESTATE

FROM LIEN OF DEBTS, PETITION.

SECTION 17. (a) It shall and may be lawful for any executor,
administrator, trustee, or any party interested in the real estate of
any decedent, to present a petition to any court having jurisdiction
of the settlement of such estate, setting forth all the particulars,
and also that there are just and reasonable grounds for believing
that said decedent left no debts not of record, and that it is de-
sirable to have the real estate of said decedent relieved from any
lien now given by law for such debts.

NOTE. This is Section 2 of the Act of June 8, 1893, P. L. 392, i Purd.
1108, except that, in the fourth line, "a petition" is substituted for "his,
her or their petition."

457. HEARING BY COURT OR MASTER; NOTICE.

(&) Said court may hear and determine the same, or refer such
petition to a master, whose duty it shall be to inquire diligently
into the facts and circumstances alleged in such petition, and report
the same to said court. The court may in its discretion direct such



348 FIDUCIARIES ACT SECTIONS 17(6), (c)-i8 (o)

notices to be given of such application, by publication or otherwise,
as it may deem necessary.

NOTE. This is Section 3 of the Act of June 8, 1893, P. L. 392, I Purd.
1108, modified by omitting in the first line, after "court," the words
"having jurisdiction as aforesaid"; by omitting in the same line, after
"same," the words "and shall have power" and inserting "or"; by omitting
"any" before "such petition" in the fourth line ; by omitting "said" before
"court" in the fifth line; and by omitting "either" after "application" in
the sixth line.

458. DECREE; BONDS BY PERSONS ENTITLED TO

REAL ESTATE,

(c) It shall be the duty of said court, upon being fully satisfied
as to the truth and justice of the matters alleged in any such peti-
tion, to decree that the real estate of such decedent shall be held
and enjoyed free and clear of any lien c' debts not of record of
said decedent, and said court shall require the person or persons
entitled to said real estate to enter bond, in such form and amount,
and with or without sureties, as the court may in its discretion de-
termine, conditioned for the payment by such person or persons
of an amount sufficient to pay any debts of the decedent not of
record, which may thereafter be proved and which would have
been liens upon said real estate but for such decree.

NOTE. This is Section 4 of the Act of 1893, i Purd. 1108, modified by
omitting "and application" after "petition," "any" before "such decedent,"
and "and direct" after "decree," and by adding the provisions in regard
to bonds. Section 5 is a general repealer.

459. CONTRACTS OF DECEDENTS FOR SALE OR

PURCHASE OF REAL ESTATE, PETITION
NOTICE, HEARING AND DECREE OF SPE-
CIFIC PERFORMANCE.

SECTION 18. (a) Where any person shall have, by contract in
writing, agreed to sell and convey any real estate in this common-
wealth, and died seized or possessed thereof, or of an undivided
interest therein, or where any person shall have purchased, in
writing, any real estate in this commonwealth and died without
paying the purchase money therefor, it shall be lawful in all such
cases for the executor or administrator of the deceased vendor,
or for the vendor when the purchaser may have died, or for the
purchaser of such real estate, or, when he has died, for his executor
or administrator, or for any other person interested in such con-



FIDUCIARIES ACT SECTION 18 (a) 349

tract, to petition the orphans' court having jurisdiction of the ac-
counts of the executor or administrator of the deceased vendor or
the deceased purchaser, as the case may be, setting forth the facts
of the case. After due notice of such petition to the persons in-
terested, according to the nature of the proceeding, to appear in
such court, on a day certain, and answer the petition, such court
shall have power, if the facts be sufficient in equity, no sufficient
cause being shown to the contrary, to decree specific performance
of such contract according to the true intent and meaning thereof.

NOTE. This is Section i of the Act of April 28, 1899, P. L. 157, i Purd.
743, with some slight changes in phraseology, and the insertion, in the
fourth line, of the words "or of an undivided interest therein," to cover
the provisions of Section i of the Act of February 8, 1848, P. L,. 27,
I Purd. 742.

Section i of the Act of 1899, which apparently supplied Section 15 of
the Act of February 24, 1834, P. L. 75, i Purd. 741, extended the remedy
to cases of deceased purchasers and allowed the petition to be filed by
any person interested in the contract.

Sections 15 to 18 of the Act of 1834 were founded on the Acts of
March 31, 1792, 3 Sm. L. 66; March 12, 1804, P. L. 271; and March 10,
1818, P. L. 183, which provided a remedy in the common law courts.

The language of Section 18 (a) of the Fiduciaries Act as to persons
dying "seized or possessed" of real estate, includes any person who was
the owner thereof at the time of his death.

"The contention of complainant's solicitor that this Act applies only
where the deceased vendor dies 'possessed' of the real estate in question,
is untenable, for the language of said Section 18 (a) is 'seized or pos-
sessed' and both conditions are thus included, and it is not questioned
that the testator died seized of the real estate in question at bar. To die
'seized' means to die the 'owner of,' 'seized' being equivalent to 'owning.'
In re: Stevens, 12 N. E. 759, (N. Y.). The bill discloses the fact that
the vendor 'owned' or was 'seized' of the legal title at his decease and by
virtue of the contract the complainant of the equitable title. We note in
passing that uniformly the vendee under articles is the one in possession.

"While it would seem therefore that we could rely solely upon the pro-
visions of the Orphans' Court and Fiduciaries Acts just mentioned, in
view of the insistence of complainant's solicitor contra, we will refer to
other legislation and judicial decisions. The case of Gable v. Whiteside,
242 Pa. 188, holds under the Act of April 28, 1899, P. L,. 157, which gave
jurisdiction to the orphans' court to hear and decree specific performance
of contracts for sale of real estate by vendor, deceased, at the time of the
application, that the jurisdiction of said court is exclusive, and neither a
common law court or a chancellor has jurisdiction in such case and re-
versed such decree of a chancellor in equity below. The language of the
Act of 1899 and of the eighteenth section (a) of that of 1917 is literally
the same with the exception the latter broadens the subject matter of
jurisdiction, and Gable v. Whiteside, ante, applies to the case at bar.



350 FIDUCIARIES ACT SECTION 18 (a), (6)

"Besides the mandate of the Statute of 21 March, 1806 (Purd. Dig. 271),
providing that a statutory remedy if existing must be strictly pursued re-
enforces the effect we must give to the two Acts of 1917 cited above.
Should it be contended that the strictness of procedure thus required ap-
plies only to the procedure once adopted, and not to the remedy or juris-
diction, we are relieved of doubt by the decision of Whitney v. Jersey
Shore, 266 Pa. 537, which holds that when a statutory remedy is provided
whereby a legal right may be effectually settled, it is necessary to pursue
the remedy and thus establish the right, and is peculiarly appropriate au-
thority here from the fact that in both that case and at bar an injunction
is prayed for, and it is apparent that relief in equity or otherwise by in-
junction proceedings is not necessary for any purpose because of the re-
quirements of (c) of the eighteenth section of the Fiduciaries Act (P. L.
487, of 1917) of the filing and indexing as Us pendens a certificate from
the clerk of the orphans' court of the filing in the latter court the petition
for specific performance.

" * * * By the jurisdiction of and proceedings in the orphans' court
under the Orphans' Court and Fiduciaries Acts of 1917 cited above, all
contraverted questions raised by the bill at bar are judiciable. Therefore,
the adequate remedy thus exists and its legislative exclusiveness of resort
precludes any other because of any claimed greater convenience." SMITH,
P. J., in Wykoff v. Manzer, 2* Lack. 308.

460. REMEDY IN ORPHANS' COURT EXCLUSIVE.

(&) The aforesaid remedy, by petition to the orphans' court,
shall hereafter be exclusive.

NOTE. This is a new provision, declaratory of the existing law.

There was some conflict in the early opinions, and in Mussleman's Ap-
peal, 65 Pa. 480, it was remarked by Mr. Justice AGNEW that it was per-
haps unfortunate that the Supreme Court, in Wetherill v. Seitzinger, 9
W. & S. 177, and in an unreported case, had decided that the Act of 1834
did not oust the jurisdiction of the common pleas under the Act of 1792.

The Commissioners of 1830 reported: "We have transferred the juris-
diction and power of giving relief in all cases within the act, from the
common pleas to the orphans' court. The constitution and process of the
latter tribunal seem to us peculiarly to fit it for all questions of chancery
jurisdiction, and particularly for cases like that provided for in these
sections, where various parties may be interested and various inquiries
may be necessary, for the best prosecution of which, the powers of the
common law courts are entirely inadequate. The course of proceedings
suggested is believed to have the advantage of greater simplicity, and at
the same time of greater efficacy than that at present authorized."

This was a clear indication that the Commissioners of 1830 were of
opinion that the earlier acts should be repealed.

The matter is now set at rest by the decision of the Supreme Court, in
Gable v. Whiteside, 242 Pa. 188, that the jurisdiction of the orphans' court
is exclusive. The present commissioners, therefore, recommend that the



FIDUCIARIES ACT SECTION 18 (fc) 351

acts giving jurisdiction to the court of common please be expressly re-
pealed.

The acts in question are as follows: March 31, 1792, 3 Sm. L. 66, Sec-
tions 1-3, I Purd. 738, 739; March 12, 1804, (4 Sm. L. 158) P. L. 271.
Section I, I Purd. 739; March 10, 1818 (7 Sm. L. 79), P. L. 183, Sections
1-3, I Purd. 740, 741; February 5, 1821 (7 Sm. L. 357), P. L. 25, Section
2, i Purd. 739; and April 3, 1851, P. L. 305, Section 6, I Purd. 741.

A court of equity has no jurisdiction to enforce specific performance
of a contract made by a decedent for the sale of land of which he died
seized.

Jurisdiction in such a case is vested in the orphans' court by Section
9 (i) of the Orphans' Court Act of June 7, 1917, P. L. 372; and Section
18 of the Fiduciaries Act of June 7, 1917, P. L. 486, providing the mode
of procedure by petition to the orphans' court, also makes that remedy
exclusive.

The orphans' court formerly had the same exclusive jurisdiction under
the Act of April 28, 1899, P. L. 157.

The adequate remedy provided by the Orphans' Court Act and the
Fiduciaries Act of 1917, and its legislative exclusiveness of resort, pre-
cludes any other remedy sought on the ground of greater convenience.

The language of Section 18 (a) of the Fiduciaries Act as to persons
dying "seized or possessed" of real estate, includes any person who was
the owner thereof at the time of his death.

"Passing to the demurrer itself, we note that by Section 9 (i) of the
Orphans' Court Act of June 7, 1917, P. L,. 372, jurisdiction of that
court is given to 'embrace'

"The contention of complainant's solicitor that this act applies only
convey any real estate of which such decedents shall die seized,' and the
proceedings therefor by petition to said court by the Fiduciaries Act of
1917, Section 18 (a) P. L. 486, 'such court shall have power if the facts
be sufficient in equity, no sufficient cause being shown to the contrary, to
decree specific performance of such contract according to the true intent
and meaning thereof.'

"By the same section (b) (P. L. 487) it is provided that 'the aforesaid
remedy by petition to the orphans' court shall hereafter be exclusive.'

"The contention of complainant's solicitor that this act applies only
where the deceased vendor dies 'possessed' of the real estate in question,
is untenable, for the language of said Section 18 (a) is 'seized or pos-
sessed' and both conditions are thus included, and it is not questioned that



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 37 of 71)