Raymond Moore Remick.

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

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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
provisions of the Orphans' Court and Fiduciaries Acts just mentioned, in
view of the insistence of complainant's solicitor contra, we will refer



352 FIDUCIARIES ACT SECTION 18 (&), (c) .

to other legislation and judicial decisions. The case of Gable v. White-
side, 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 per-
formance 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 reversed such decree of a chancellor in equity below.

"The language of the Act of 1899 and of the i8th Section (a) of that of
1917 is literally the same with the exception the latter broadens the sub-
ject matter of jurisdiction and Gable v. Whiteside ante applies to the
case at bar.

"Besides the mandate of the statute of 21 March, 1806 (Purd. Dig. 271),
providing that a statutory remedy if existing must be strictly pursued
reenforces the effect we must give to the two Acts of 1917 cited above.
Should it be contended that the strictness of procedure thus required
applies only to the procedure once adopted, and not to the remedy or
jurisdiction, 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 appro-
priate authority here from the fact that in both that case and at bar an in-
junction is prayed for, and it is not necessary for any purpose because of
the requirements of (c) of the i8th Section of the Fiduciaries Act of
the filing and indexing as lis 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 contro-
verted 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, 22 Lack. 308.

461. INDEXING OF PETITION IN JUDGMENT IN-
DEX.

(c) When any petition for the specific performance of any such
contract shall have been filed, it shall be the duty of the prothono-
tary of the court of common pleas of the county in which such
real estate or any part thereof shall lie, on being certified by the
clerk of the orphans' court in which such petition shall have been
filed of the fact of such filing, to enter the same upon the judgment
index under the name of the respondent in such petition, and to
certify the same as lis pendens in any certificate of search that he
may be required to make by virtue of his office.

NOTE. This is a new provision, modeled upon Section i of the Act of
June 15, 1871, P. L. 387, 4 Purd. 4060. See also the Act of April 22, 1856,
P. L. 532, Section 2, 2 Purd. 1303.



FIDUCIARIES ACT SECTION 18 (c), (rf) 353

This provision seems preferable to that of Section 2 of the Act of April
28, 1899, P. L. 157, i Purd. 743, which was a copy of Section 17 of the
Act of 1834, I Purd. 742, and reads as follows: "The order or decree of
the orphans' court for the specific performance of any such contract, in
the cases hereinbefore mentioned, being certified by the clerk of such
court, under the seal thereof, may be recorded in the office for the record-
ing of deeds in the county where such real estate is situate, in like man-
ner as deeds are recorded, and with the same effect."

It is recommended that this section be repealed, since, if the decree is
followed by a deed, which will itself be recorded, the recording of the
decree seems unnecessary. The indexing of the petition, as provided by
clause, (c), supra, will be more satisfactory.

See Wykoff v. Manzer, 22 Lack. 308.

462. EXECUTION AND EFFECT OF DEED; DECREE
FOR PAYMENT BY REPRESENTATIVES OF
DECEASED VENDEE.

(rf) When such order or decree for the specific performance
of any such contract shall have been made, and the purchase money
paid or secured to be paid according to the terms of such contract,
it shall be the duty of the vendor, or, when he shall be deceased,
of his executors or administrators, to execute such deed of convey-
ance as shall be directed by the court in conformity with the in-
tention of such contract. Such deed, being so made by such execu-
tors or administrators, shall have the same force and effect to pass
and vest the estate intended as if the same had been executed by
the decedent in his lifetime. In the case of an order or decree for
specific performance by the executors or administrators of a de-
ceased vendee, the court shall enter a decree for payment by such
executors or administrators, out of the estate of their decedent, of
the amount of purchase money, with interest, if any, which decree
may be enforced in like manner as other decrees of the orphans'
court for the payment of money. The liability for the costs of
such proceedings shall be in the discretion of the court.

NOTE. This is Section 3 of the Act of April 28, 1899, i Purd. 743,
which was a copy of Section 18 of the Act of 1834, i Purd. 742, except
for the insertion of the provision for conveyance by the vendor himself,
intended to cover the case of a deceased vendee.

The third sentence has now been added to cover the case where the
decree of the court is for payment of purchase money by the estate of a
deceased vendee. The provision as to costs is also new.

23



354 FIDUCIARIES ACT SECTION 18 (*), (/)

463. ENFORCEMENT OF PAROL CONTRACTS.

(e) Like proceedings may be had in all respects wherever any
parol contract shall have been entered into by any person for the
conveyance of real estate within this commonwealth and the pur-
chaser shall have died without fully executing such contract, or
wherever any person may have made such parol agreement and
died seized or possessed of such real estate and no sufficient pro-
vision for the performance of such contract shall have been made
by the decedent, in all cases where such parol contract shall have
been, so far executed that it would be against equity to rescind the
same.

NOTE. This is Section 4 of the Act of April 28, 1899, i Purd. 743, ex-
cept that the latter part, beginning "and no sufficient provision," follows
the phraseology of Section 16 of the Act of 1834, i Purd. 742, from which
Section 4 of the Act of 1899 was derived.

The Act of 1899 reads, "and such parol contract may have been so far
executed by possession, by improvement, or by partial payment of purchase
money, that it would be against equity to rescind the same."

The commissioners are of opinion that it is better to use the general
language of the Act of 1834 rather than to attempt to define in this act
the part performance which is sufficient to take a parol contract for the
sale of land out of the Statute of Frauds.

464. EXECUTION OF DEED WHERE GRANTEE IS

EXECUTOR OR ADMINISTRATOR.

(/) In all cases of specific performance of contract which may
hereafter be decreed by any orphans' court under the provisions
of this section, where the party to whom the deed is to be made is
an executor or administrator of the deceased vendor, the deed shall
be made, as in other cases, by the co-executor or co-administrator,
if there be one ; and if there be none, the court may make an order
directing its clerk to execute such deed and deliver the same to
the grantee therein named, upon such terms as the court shall see
fit to require from the grantee, as executor or administrator of the
decedent, for securing the faithful appropriation of the unpaid
purchase money.

NOTE. This is Section 2 of the Act of April 9, 1849, P. L. 511, I Purd.
742, changed by referring to "the provisions of this section" instead of
Sections 15, 16 and 17 of the Act of 1834, and by providing that the deed
shall be executed by the clerk of the orphans' court instead of by the
sheriff.



FIDUCIARIES ACT SECTIONS 19-20-21 355

465. NOTICE OF DEVISE OR BEQUEST TO CORPO-

RATION.

SECTION 19. Whenever a devise or bequest shall be made to any
corporate body, by any last will and testament, the executors
thereof shall, within three months after they undertake the execu-
tion of such will, make known, by letter addressed to such corpo-
rate body, the nature and amount of such devise and bequest, to-
gether with their names and places of residence.

NOTE. This is Section 66 of the Act of 1834, i Purd. noo. changing
"six months" to "three months," and omitting "public" before "corporate
body." The main object of the section is notice to charitable corporations,
and "public" might seem to restrict it to municipalities.

The section was copied from Section 5 of the Act of April 6, 1791,
3 Sm. L. 20, which, however, imposed the duty of giving notice upon the
register of wills. It is to be noted that Section 5 of the Act of 1791 is
printed in 4 Purd. 4079 and in 3 P. & L. 6455, 6456, as still in force. It
was evidently intended to be repealed by the Act of 1834, and should now
be expressly repealed.

466. ABATEMENT OF LEGACIES.

SECTION 20. If, after deducting the amount of debts of the tes-
tator and the expenses of administration, the residue shall not be
sufficient to discharge all the pecuniary legacies bequeathed, an
abatement shall be made, in proportion to the legacies so given,
unless it shall be otherwise provided by the will.

NOTE. This is Section 48 of the Act of February 24, 1834, I Purd. 1132,
which was derived from the last clause of Section i of the Act of March
21, 1772, i Sm. L. 383.

It is now modified by inserting after "debts" the words "of the testator
and the expenses of administration," instead of the words "as aforesaid,"
which referred to Section 47 of the Act of 1834.

467. WHEN LEGACIES SHALL BE PAYABLE; IN-

TEREST ON LEGACIES.

SECTION 21. Legacies, if no time be limited by the will for the
payment thereof, shall, in all cases, be deemed to be due and pay-
able at the expiration of six months from the death of the testator.
Interest on all pecuniary legacies, whether bequeathed directly or
in trust, shall, unless a contrary intention appear by the will, begin
to run from the expiration of one year from the death of the tes-
tator, except that if the account of the executor be filed and con-
firmed and distribution awarded before the end of such year, then
interest on such legacies shall run from the date of the award:



356 FIDUCIARIES ACT SECTION 21

Provided, That where a pecuniary legacy is bequeathed to or for
the use of the widow of the testator or any child or descendant of
the testator, or any person toward whom the testator in his life-
time stood in loco parentis, or for the maintenance of any person,
interest shall, unless a contrary intention appear by the will, begin
to run from the date of the death of the testator.

NOTE. The first four lines of this section, down to the word "testator,"
are copied from Section 51 of the Act of 1834, i Purd. 1134, which was
derived from Section 7 of the Act of March 21, 1772, i Sm. L. 383. The
only change is to substitute "six months" for one year. The remainder
of the section is new.

In this section, legacies are made payable at the end of six months, for
the reason that in other sections of this act the commissioners have rec-
ommended that executors and administrators should file their accounts at
the expiration of this period after the issuance of letters. It is, however,
recommended that interest should not begin to run on legacies until after
the expiration of one year or an earlier award; as in future most accounts
will be filed at the end of six months from the grant of letters, the award
of legacies will not be complicated by the calculation of interest.

Interest on legacies to or for the use of a widow or children or those
to whom the testator stood in loco parentis, and legacies for maintenance,
will, unless it be otherwise provided, run from the death of the testator;
but legacies bequeathed in trust for other persons will not carry interest
from the date of death, the commissioners having here adopted the views
of Judge PENROSE in Twell's Estate, n D. R. 713.

Under this section of the Fiduciaries Act, where a pecuniary legacy is
bequeathed to or for the use of the widow of the testator, the interest,
unless a contrary intention appear by the will, begins to run from the
date of the death of the testator. A direction in a will to set aside a fund
for the widow's use "as soon as possible after my death," does not denote
a contrary intention on the part of the testator. Wagner's Est., 13 Berks 6,
30 Dist. 435.

"It was argued on behalf of Florence Hadfield that the testator in-
tended the bequest of $25,000 to be preferred to the other legacies, because
the testator directed that it be paid 'immediately.' The auditing judge can-
not agree with this argument. Manifestly, the intention of the testator was
to specify merely the time when the legacy was to be paid, not to give it
priority over others in case of a deficiency of assets to pay all in full. Mur-
doch's Appeal, 31 Pa. 47, was virtually a contest between the annuitants
and the residuary legatees, and was decided on that ground. The onus
is always on the legatee who claims a priority of payment, Bard's Estate,
58 Pa. 393, and a mere provision that the legacy is due immediately in-
stead of at the expiration of a year is not sufficient proof of such intention.
The same remark applies also to the widow's legacy of $25,000, also di-
rected to be paid immediately. But under the Fiduciaries Act of 1917,
Section 21, the legacies to the widow and to Florence Hadfield are entitled
to interest from the date of death, because they are due immediately, and



FIDUCIARIES ACT SECTIONS 21-22 357

besides, in the case of the widow, she is entitled to interest by the express
provision of that section of the Fiduciaries Act." Per GEST, J., in Greaves'
Est., 29 Dist. 577.

Under this section of the Fiduciaries Act, interest begins to run on a
legacy bequeathed in trust (with certain exceptions mentioned in the sec-
tion) only from the expiration of one year from the testator's death; the
act in this respect changed the existing law.

ANDERSON, J., for the court in bane, held : "We agree with the auditing
judge in this case that, under the law as it now stands, interest does not
run on this trust legacy until either the end of the year or the time of the
adjudication. And while it is clearly shown by the argument of except-
ant's counsel that, prior to the Fiduciaries Act of June 7, 1917, P. L. 447,
interest would be allowed in such a case as this, yet it must be borne in
mind that at the drafting of this act the commissioners, with the knowl-
edge that trust legacies carried interest from the date of the death, while
pecuniary legacies did not, so changed the law as to make trust legacies,
except under certain conditions, which do not exist in this case, bear in-
terest, as above stated, not until the end of the year or the filing of the
adjudication. The change was made deliberately, and we are bound by
the law as it now exists." Sterrett's Est., 29 Dist. 147.

468. APPORTIONMENT OF INCOME.

SECTION 22. All annuities and all payments of rents, income,
interest or dividends of any real or personal property, directed by
any will to be made during the lifetime of the beneficiary, or for
the life or lives of another person or persons, or for a term of
years, shall, like interest on money lent, be considered as accruing
from day to day, and shall be apportioned to the date of the death
of such beneficiary or of such cestui que vie, or to the end of such
term of years.

NOTE. This is a new section, modeled to some extent on the English
Apportionment Act of 33 and 34 Victoria, Chapter 35. Under the existing
law, income is apportionable in some instances and not in others. See
the cases cited in n P. & L. Dig. of Decisions, col. 18690; Macllwain's
Estate, 20 D. R. 1073.

It is to be noted that Sections 7 and 30 of the Act of February 24, 1834
(Sections n (<?) (see 396 supra) and 35 (e) (see 516 infra) of the pres-
ent draft), were derived from the statute of II George II, Chapter 19,
which was the first of a series of statutes in England, culminating in the
above cited statute of Victoria, which provides that "all rents, annuities,
dividends, and other periodical payments in the nature of income (whether
reserved or made payable under an instrument in writing or otherwise)
shall, like interest on money lent, be considered as accruing from day to
day, and shall be apportionable in respect of time accordingly."

The change now recommended by the commissioners was suggested by
THAYER, P. J., in Stewart v. Swaim, 7 W. N. C. 407.



358 FIDUCIARIES ACT SECTION 23

469. SECURITY BY ONE ENTITLED TO INCOME OR
PROCEEDS OF SALE OF DECEDENT'S REAL
ESTATE; AND BY LEGATEE FOR LIFE, FOR
TERM OF YEARS, OR OTHER LIMITED PE-
RIOD OR ON CONDITION OR CONTINGENCY;
APPOINTMENT OF TRUSTEE ON REFUSAL,
NEGLECT OR INABILITY TO ENTER SE-
CURITY.

SECTION 23. Whenever any person is or shall be entitled to the
income from the proceeds of the sale of a decedent's real estate,
and whenever any personal property, or the increase, profits or
dividends thereof, has been or shall hereafter be bequeathed to
any person, for life, or for a term of years, or for any other lim-
ited period, or upon a condition or contingency, the executor or
executors, administrator with the will annexed, trustee or trus-
tees under such will, or trustee appointed by the orphans' court
to make such sale of real estate, as the case may be, shall deliver
the property so bequeathed to the person entitled thereto, upon
such person giving security in the orphans' court having jurisdic-
tion, in such form and amount as, in the judgment of the court,
will sufficiently secure the interest of the person or persons en-
titled in remainder, whenever the same shall accrue or vest in pos-
session. Should such person or legatee refuse or neglect or be
unable to enter such security, the court may, upon petition of any
person interested, including the owner of any subsequent interest,
vested or contingent, in such proceeds of real estate, personal
property, or the increase, profits or dividends thereof, and upon
due notice to all persons interested, so far as such notice can rea-
sonably be given, appoint a suitable person or corporation as
trustee to receive and hold such proceeds of sale or personal prop-
erty, invest the same in securities authorized by law, pay the in-
come thereof, after deducting all legal charges, to the person en-
titled thereto, and, upon the termination of the trust, account for
and pay to the persons entitled thereto the corpus of the trust
fund, or transfer and deliver to them the securities in which it is
invested, as the court may direct, after deducting all legal charges
thereon. Such trustee shall enter such security as the court may
direct. He shall not be an insurer of the trust fund, and shall be
liable to the persons interested in the income or corpus of the trust
fund only for such care, prudence and diligence in the execution
of the trust as other trustees are liable for.



FIDUCIARIES ACT SECTION 23 359

NOTE. This is Section i of the Act of May 17, 1871, P. L,. 269, i Purd.
1133, amended by reason of the decision in Weir's Estate, 251 Pa. 499,
also by inserting the provisions as to proceeds of real estate, and by
omitting, at the end of the first sentence, the following: "and any married
woman availing herself of the benefits of this act, shall have power, as a
feme sole, to bind her separate estate and property by any obligation given
by her, as security under this act." This provision seems unnecessary since
the Married Women's Acts of 1887 and 1893, as it cannot be taken to
mean that a married woman may bind herself as surety for another, but
only that she may be principal in a bond given under the Act of 1871.

That part of Section 46 of the Act of February 24, 1834, i Purd. 1123,
relating to security by a tenant for life on a sale of real estate for pay-
ment of debts, is covered.

Section 49 of the Act of 1834, i Purd. 1133, was supplied by the Act of
1871 and is recommended for repeal.

Section i of the Act of April 17, 1869, P. L. 70, I Purd. 1138, so far as
it empowers "the owner of any contingent interest in the personal prop-
erty of any decedent" to "require the legatee of any previous interest in
the same property before receiving the same, to give security," etc., is
embodied in the present draft.

The present law seems to require amendment in several particulars. It
makes no provision for the case that frequently arises where the life ten-
ant refuses or is unable to enter security; nor does it provide for the case
that also frequently arises under existing laws where a widow, for ex-
ample, is entitled for life to her share of the proceeds of real estate. In
such cases it has been the practice for the courts ex necessitate to appoint
a trustee without express legislative warrant. The duties of such a
trustee were of course not defined by statute; and the Supreme Court has
recently held in Weir's Estate, 251 Pa. 499, that such a trustee practically
takes the place of the life tenant, who or whose estate under existing
decisions is responsible to the remaindermen at the termination of the
life estate for the exact value of the assets received by the life tenant,
who thus becomes practically an insurer of the fund. In such circum-
stances it will be difficult to find any person or corporation who would be
willing to assume this responsibility, and this section has been framed to
assimilate the duties and responsibilities of such a trustee to those of
other trustees.

"Section 23 of the Fiduciaries Act of June 7, 1917, P. L. 447, 489, has
changed the rule laid down in Weir's Estate and expressly provides that,
where a life tenant refuses or neglects to enter security, the court, upon
the application of any person in interest, may appoint a trustee to hold the
property, who shall be liable only 'for such care, prudence and diligence
in the execution of the trust as other trustees are liable for'": Mr. Jus-
tice MOSCHZISKER, in Loewer's Est, 263 Pa. 517, 106 Atl. 789, reversing on
another point the court below (27 Dist. 753) where, in his opinion,
L,AMOREU,E, P. J., said: "If, when a life tenant gives a bond, the security
takes the place of the fund so awarded, and if, even where the life estate



3 6o FIDUCIARIES ACT SECTION 23

is given in trust a similar rule applies, why should not a trustee appointed
by the court be treated as is the surety, and be responsible for the fund
at its value when received, irrespective of after-profits or losses? There
is no warrant in law for the appointment of a trustee who is to be treated
solely qua trustee. The Act of May 17, 1871, P. L. 269, is silent on the
subject. True, it has been customary, where a life tenant was unwilling
or unable to comply with the exaction of the act, to appoint some one to
hold the fund and to act as trustee, but prior to the Fiduciaries Act of
1917, P. L. 447, there was no law authorizing the practice. . . .

"While no one seems to have questioned the right of the court to ap-
point such trustee, the responsibilities and the limitations of one so ap-
pointed were questioned and are defined in Weir's Estate, 251 Pa. 499."
See also Conner's Est., 29 Dist. 636.

A gift of $15,000 with a limitation or restriction as to its use, and a
further bequest on the death of the legatee, comes within Section 23 of
the Fiduciaries Act of June 7, 1917, P. L. 447, and will be delivered to
the legatee upon giving security to protect the interest of the remainder-
men. Dale's Est., 29 Dist. 265.

Where a testator devised a farm to his daughter for life subject to an



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 38 of 71)