Raymond Moore Remick.

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

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annual payment to his widow during her life, and the farm was subse-
quently sold under order of court to pay a mortgage given for payment
of debts, the court ordering an amount to remain charged out of the pur-
chase money, the interest of which, being equal to her annuity, was to be
paid to the widow for life, the court has no power, on petition of a sub-
sequent purchaser of the farm, to order the daughter to give bond for, or
to appoint a trustee to receive, the principal of the charge. The will cre-
ated no charge and the former court had no authority to create one, nor
can the present court authorize the payment to the daughter of money
already due her or compel her to receive it. Refusal to accept money due
is no wrong for which there is a remedy.

Semble. The 23d section of the Fiduciaries Act of June 7, 1917, P. L.
489, does not cover this case.

In dismissing the petition, the court, per SMITH, P. J., said: "Why
should the petitioner be concerned about her giving a bond? It can be
readily seen that the remaindermen might be disturbed if this money is
not securely guarded, but it does not appear how the petitioner can be in-
jured by paying as by the terms of the agreement it was contracted he
should pay. There is nothing in the agreement about payment being with-
held until the payee furnishes security. Again, what and where is the law
by which a demand for security from Levina Carman can be enforced by
anyone? As we understand the case, there was none previous to the pas-
sage of the Fiduciaries Act of June 7, 1917, Section 23, P. L. 447, and it
can be fairly and forcefully argued that this act does not cover this case.
It does not seem to authorize any other than executors, administrators
with the will annexed, trustees under wills, or trustees appointed by the
court, to withhold property from those to whom it has been bequeathed
because of a failure or refusal by them to give security." Ranck's Est.,
27 Dist. 792, 35 Lane. Rev. 205.



FIDUCIARIES ACT SECTION 24 361

470. REMEDY FOR COLLECTION OF ALL LEGA-
CIES TO BE EXCLUSIVELY IN THE OR-
PHANS' COURT.

SECTION 24. The remedy for the collection or enforcement of
payment or delivery of all legacies, whether pecuniary, specific or
otherwise, and whether charged on land or not, shall hereafter be
exclusively in the orphans' court, saving the jurisdiction of other
courts in actions which may be pending at the time of the approval
of this act.

NOTE. This is a new section. To all intents and purposes, the remedy
for the collection of legacies is now entirely in the orphans' court, actions
at law for the purpose having fallen into disuse. The payment of legacies
in general being essentially a part of the distribution of estates in the
orphans' court, and that court having, under existing laws, full power to
enforce the payment of legacies charged on land, it would seem proper
to abolish proceedings in the court of common pleas.

The commissioners therefore suggest the repeal of Sections 50, 52, 53,
54, 55 and 56 of the Act of 1834, i Purd. 1134, 1135. Those sections were
derived in part from the Act of March 21, 1772, i Sm. L. 383.

The Commissioners of 1830 recited the provision of Section 3 of the
Act of 1772, which authorized the court in which an action for a legacy
was brought to appoint auditors to ascertain how the accounts of the
executor stood and how the assets ought to be apportioned, and remarked
upon the great inconvenience of this method, saying : "The best course
for all parties, is to refer all questions on the subject of accounts and as-
sets, to the orphans' court, and to suspend proceedings in the other courts,
until the result of the settlement in that tribunal is ascertained."

The present commissioners now recommend that the legislature take
one step more and abolish the remedy by action at law.

This section of the Fiduciaries Act does not include owelty in partition,
secured by recognizance in the orphans' court. In so holding, GIU,AN,
P. J., said:

"If the legislature had intended that the remedy for the collection of
owelty in partition, charged by recognizance in the orphans' court, should
be exclusively in that court, it would have said so ; unless it does say so,
the courts can not so hold. By Act of 24 February, 1834, P. L. 70 it was
provided that it should be lawful for any one to whom a bequest of money
was to be made, to bring an action at law for the recovery of the same.
By the Act of 1917 this has been repealed and the remedy is now exclu-
sively in the orphans' court. But this does not apply to owelty in partition
charged upon lands." Poe's Est., 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L.
J. 635, 15 Del. 381.



362 FIDUCIARIES ACT SECTION 25 GO

471. PROCEDURE TO ENFORCE PAYMENT OF
LEGACIES CHARGED ON LAND; PETITION,
NOTICE DECREE FOR PAYMENT; SALE AND
DISTRIBUTION OF PROCEEDS; DECREE TO
ENFORCE PAYMENT OF INTEREST.

SECTION 25. (a) In all cases in which, by the provisions of any
last will and testament, or by the provisions of this act, or by pro-
ceedings in the orphans' court in any county, any legacy or any
money payable at a future period, or any money the interest on
which is payable to any person, is or shall be hereafter charged
upon, or payable out of real estate, it shall be lawful for the legatee
or the person entitled to such money or interest to apply by petition
to the orphans' court having jurisdiction of the accounts of the
fiduciary. On the presentation of such petition, the court, having
caused due notice to be given to such fiduciary, and the devisee or
heir, as the case may be, and the present owner, of the real estate
charged with such legacy, sum of money or interest, and to such
persons interested in the estate or property as justice may require,
may proceed according to equity to make a decree directing such
devisee, heir or owner to pay the amount of such legacy, sum of
money or interest then due, within a time to be limited by such
decree, and providing that in case such devisee, heir or owner shall
fail to make payment within such time, the fiduciary, or a trustee
to be appointed by said court, in its discretion, shall, after giving
public notice of such sale, once a week for a period of three weeks
before the day appointed therefor, by advertisement, in at least
one newspaper published in the county if there be one, or, if there
be none, then in an adjoining county, and by handbills posted at a
conspicuous place on the real estate proposed to be sold and in at
least three of the most public places in the vicinity of such estate,
make sale of said real estate or so much thereof as may be nec-
essary, for the purpose of payment of such legacy, sum of money
or interest. The proceeds of such sale shall be distributed, under
the direction of said court, as in other cases of judicial sales, to
the persons legally entitled to receive the same. In the case of
money charged upon real estate, the interest on which is payable
to any person, the court may, instead of directing a sale of such
real estate as aforesaid, make such decree or order to enforce pay-
ment of said interest as shall be just and proper.

NOTE. This is a combination of Section 59 of the Act of 1834, I Purd.
1135, Section i of the Act of May 17, 1866, P. L. 1096, 3 Purd. 3388, as



FIDUCIARIES ACT SECTION 25 (a), (&) 363

amended by the Act of March 22, 1907, P. L. 29, 6 Purd. 7036, and Section
I of the Act of April 28, 1809, P. L. 120, 3 Purd. 3389.

Sections 59, 60 and 61 of the Act of 1834 were new in that act, and were
intended "to remedy a serious defect in our jurisprudence, arising, like
many others, from the attempt to obtain justice with the insufficient ma-
chinery of our common law courts," the remedy, before the Act of 1834,
having been solely by actions at law.

Section 24 of the present draft (see 470 supra) makes the remedy in the
orphans' court exclusive.

Section 59 of the Act of 1834 ends, "to make such decree or order
touching the payment of the legacy, out of such real estate, as may be
requisite and just." It has been held that the writ of levari facias is the
proper process for enforcing such a decree : Hart v. Homiller's Executor,
23 Pa. 39. The change is made so as to provide for sale by the executor
or a trustee, and the procedure is made to conform with sales for payment
of debts. The provisions have also been extended so as to include the
terre tenant. In line 6, "person" has been substituted for "widow," and
corresponding changes have been made in this and the following clauses.
"Once a week for a period of three weeks" has been substituted for "at
least twenty days."

The Act of 1866 includes charges on land by proceedings in the orphans'
court, and the amendment of 1907 added the words "or otherwise," which
are now omitted. The Act of 1899 was intended to facilitate the collection
of dower interest in cases of the absence or non-residence of the owners
of the land.

Where a testator gives to his wife an annuity for life and directs that
"the same shall be a lien upon any real estate of which I may die seized,"
and after giving the remainder of the income of his estate to certain per-
sons for life, further directs that the corpus of his estate shall be divided
among his grandchildren "subject to all the limitations, previous gifts,
and bequests heretofore set forth," the widow, on a deficiency of income
from the annuity, is entitled to proceed under the Act of February 24,
1834, P. L. 84 (incorporated under Section 25 of the Fiduciaries Act of
June 7, 1917, P. L. 447), to have her annuity charged upon the land. John-
ston's Est., 264 Pa. 71, 107 Atl. 335.

472. PROCEDURE WHERE LAND LIES IN AN-
OTHER COUNTY OR IS DIVIDED BY A
COUNTY LINE.

(b) If the real estate charged with such legacy, sum of money
or interest shall be situated in a county or counties other than that
the orphans' court of which has jurisdiction of the accounts of the
fiduciary, and the devisee, heir or owner, against whom such decree
has been made, shall fail to comply therewith according to the
terms thereof, such decree may be certified to the orphans' court
of any county in which such real estate is situated, or, in case such
real estate is divided by a county line, then to the orphans' court



364 FIDUCIARIES ACT SECTION 25 (fr), (c)

of the county where the mansion house may be situated, or, if
there be no mansion house, to the county where the principal im-
provements may be, or, if there be no improvements, to either
county. Upon such certification and petition filed by the legatee
or the person entitled to such money or to such interest, it shall
be the duty of the said orphans' court to make an order for the
sale of so much and such parts of such real estate as shall, in their
opinion, be necessary to raise the specified sum and to direct the
fiduciary, or a trustee to be appointed by said court, to make such
sale after public notice as aforesaid given in each of the counties
in which the real estate is situated. Such fiduciary or trustee shall
in all cases make return of his proceedings, in relation to such sale,
to the orphans' court making such order of sale, when, if the same
be approved by said court, it shall be confirmed ; but the proceeds
of such sale shall be distributed under the direction of the court
having jurisdiction of the accounts of the fiduciary or trustee, as
provided in clause (a) of this section. In the case of money
charged upon real estate, the interest on which is payable to any
person, the orphans' court to which the decree is certified, as afore-
said, may, instead of directing a sale of such real estate as afore-
said, make such decree or order to enforce payment of said in-
terest as shall be just and proper.

NOTE. This is Section 60 of the Act of 1834, i Purd. 1136, modified so
as to correspond to the changes made in .the last preceding clause, so as
to provide for the filing of a petition by the legatee or other person en-
titled to payment, so as to include the case where the land is situated in
other counties, and so as to make the procedure conform to that pre-
scribed in relation to the sale of real estate for the payment of debts of
a decedent

473. BOND BY LEGATEE OR OTHER PERSON EN-
TITLED TO BENEFIT OF DECREE FOR PAY-
MENT.

(c) Before such legatee or other person shall be entitled to the
benefit of any decree made under the provisions of this section for
payment by the devisee, heir or owner of the real estate of the
amount of such legacy, sum of money or interest, he or she shall
give such security as the court, in which application was originally
made, shall direct, for the indemnity of the devisee, heir, owner,
or other persons interested, in the event of any debt due by the
testator being recovered, for the payment of which such real es-
tate would be liable.



FIDUCIARIES ACT SECTIONS 25 (c)-26 (a) 365

NOTE. This is Section 61 of the Act of 1834, i Purd. 1136, modified so
as to apply only to the decree for payment.

474. DISCHARGE OF RESIDUARY ESTATE FROM
ANNUITIES OR LEGACIES PAYABLE IN FU-
TURE, PETITION.

SECTION 26. (a) Whenever any testator shall have heretofore,
by his last will and testament duly proven, given or bequeathed
any annuity or annuities to any person or persons, or directed the
payment of an annuity or annuities by his executors or by trustees,
or bequeathed legacies of principal sums payable at a future period,
or upon contingencies or under other circumstances by which the
payment or discharge and satisfaction of such legacies may be post-
poned, or may not take place until a distant period after the death
of such testator, and either by the express words of the will, or
by the rules of law in the construction thereof, such annuities or
legacies are made or become a charge upon all the residuary real
or personal estate of the testator, and whenever any testator shall
hereafter make any such bequest and provisions, in any such case,
it shall be lawful for the executors of any such will, or for any
such annuitant or legatee, or for any person interested in such
residuary estate, at any time after the expiration of six months
from the granting of letters testamentary, to apply by petition to
the orphans' court having jurisdiction of the accounts of such
executors, setting forth the facts and praying relief.

NOTE. This is the first part of Section i of the Act of February 23,
I 8S3, P. L. 98, i Purd. 1136, the section having been divided on account of
its excessive length.

The only changes made in this part are to substitute the period of six
months for one year, and to add the words "real or personal" before "es-
tate of the testator."

Section 26 of the Fiduciaries Act extended the practice provided under
the Act of February 23, 1853 (P. L. 98), to residuary personal estate as
well as real estate. GEST, J., in Channon's Est., 27 Dist. 479, 47 Pa. C. C.
637, affirmed in 266 Pa. 417, 109 Atl. 756.

"A petition was presented by the Schuylkill Trust Company, executor
of the last will and testament of John J. Cullen, praying that a citation
be issued to show cause why the real estate of John J. Cullen, deceased,
should not be sold for the purposes set forth in the petition. The seventh
clause of the petition recites that 'in order to fully discharge the debts
of the decedent and pay all bequests it is necessary to sell and dispose of
the real estate,' and in paragraph ten, prays the court to grant relief, as
provided for in the twenty-sixth section of the Fiduciaries Act of
1917- . .



366 FIDUCIARIES ACT SECTION 26 (a), (ft), (c)

"The purpose of the second petition, as stated in clause seven, is to se-
cure the discharge of the debts and bequests of the testator. It is alleged
that this is a proceeding under the twenty-sixth section of the Fiduciaries
Act of 1917. An examination of this section shows that it is a repetition
of the Act of 1853, with slight modifications and it does not authorize the
court to direct a sale of real estate for the payment of debts and legacies,
or of either debts or legacies. In fine, it does not authorize the sale of
real estate at all, and this court had no jurisdiction to order a sale of this
real estate under this proceeding. And if the purchasers of real estate
have any title it is an exceedingly doubtful one.

"The account shows that there was sufficient personal property in this
estate to pay the debts. The executor should have contented itself with
the administration of the personal estate, and thus its duty as executor
would have been fully discharged. The will did not charge the land with
the payment of legacies; but if it did, the executor was not the proper
person to petition the court to secure their payment" WH.HELM, P. J., in
Cullen's Est^ 16 Scb, 278.

475. CITATION, HEARING, APPOINTMENT OF

MASTER

(&) Upon the filing of such petition, the court may order a cita-
tion to be issued to the parties interested, to appear at a day cer-
tain, to show cause why the relief prayed for should not be granted ;
and upon the return of such citation, if all the annuitants, legatees
and other persons interested shall have had due notice of the appli-
cation, the court may itself inquire into the circumstances, the
amount and condition of the estate, and the expediency and pro-
priety of exempting any part or portion of the residuary real or
personal estate from the lien and charge of such annuities and
legacies, or either of them, having due regard to the absolute and
ultimate security of such annuities and legacies ; or the court may,
at its discretion, refer the case to a master, with directions to in-
quire into the matters aforesaid and to report thereupon.

NOTE. This is the second part of Section i of the Act of February 23,
I 853, P- L. 98, I Purd, 1137, altered by extending its provisions to residu-
ary personal as well as real estate, and by providing that the case may
be referred to a master instead of an auditor.

476. DECREE DIRECTING SETTING APART OR IN-

VESTING OF SO MUCH OF RESIDUARY ES-
TATE AS WILL SECURE PAYMENT OF AN-
NUITIES OF LEGACIES.

(c) After such inquiry by the court or, if the case is referred
to a master, after his report has been made and after notice thereof
to all persons interested, it shall be lawful for the court to make



FIDUCIARIES ACT SECTION 26 (c), (rf) 367

a decree in the premises, and if it shall appear that all the debts of
the testator have been paid or sufficiently secured, the court may
enter a decree that such part or parts of the residuary real estate,
or such real securities or investments in public stocks or bonds,
or such securities as now are or may hereafter be authorized by
law as investments by trustees, shall be set apart or appropriated
or that such part of the residuary estate shall be so invested as,
in the judgment of the court, shall appear to be, and with rea-
sonable probability continue to be, adequate and sufficient, beyond
all charges, expenses and deductions, for the payment of such an-
nuities and legacies, providing always a sufficient surplus to meet
any contingent diminution or depreciation in the value or income
of the estate and securities so set apart.

NOTE. This is the third part of Section i of the Act of February 23,
1853, i Purd. 1137.

It has been changed by inserting the provisions at the beginning, to cover
cases where the court itself hears the evidence ; by inserting after "public
stocks" the words "or bonds ;" by adding the provision as to other legal
investments ; and by adding the provision for investment, to cover cases
where the residuary estate consists of other than legal investments. There
are also slight changes in phraseology.

477. DISCHARGE OF REMAINING ESTATE; AP-
PEALS.

(d) When such decree shall have been made, it shall be further
lawful for the court to order and decree that all the remaining real
or personal estate of the testator, or both, not so specifically set
apart, shall be and remain discharged and exonerated from the lien
and charge of any and every such annuity and legacy, and such
decree shall have the force and effect of discharging and exon-
erating all such real or personal estate, or both, accordingly : Pro-
vided, That an appeal from a decree granting or refusing such
petition may be taken to the proper appellate court within six
months after the entry of the same, as in other cases : And pro-
vided further, That nothing in this section contained shall be
deemed or held to authorize the exoneration of any real estate
which may have been or may be specifically charged by a testator
with the payment of any annuity or legacy.

NOTE. This is the last part of Section i of the Act of February 23,
1853, i Purd. 1137.

The words "or personal" have been inserted in the third line. After
"annuity and legacy," in the sixth line, the following has been omitted :
"in the hands of any bona fide purchaser of such real estate for a valuable



368 FIDUCIARIES ACT SECTION 26 (<f), (e), (/)

consideration." No reason appears why the exoneration should not oper-
ate in favor of devisees and legatees.

The provision as to appeal has been changed so as to meet the decision
in McCredy's Appeal, 64 Pa. 428, that an appeal under this section lay only
when the decree was in favor of the petitioner. The words "proper ap-
pellate" have been substituted for "supreme" in the first proviso, and the
period for appeal has been made six months instead of one year.

478. CUSTODY OF PORTION OF ESTATE SET
APART; ACCOUNTS, SURPLUS INCOME.

(e) The real estate, securities and investments, set apart and
appropriated by order of the court as aforesaid, shall be and con-
tinue in the possession, charge and management of the executors,
trustees or other persons to whom the same may have been devised
or bequeathed by the testator as aforesaid, under and subject to
the charge of such annuities and legacies. It shall be the duty of
every such executor, trustee and other person, upon request of
any person interested, to file with said court, at the expiration of
one year after such decree shall have been made, and at the expira-
tion of every year thereafter until the termination of such trust,
an account setting forth the situation and circumstances of such
estate, securities and investments, and the annual income there-
from, and the payments thereout. If, upon such account, it shall
appear to the court that the said income exceeds, in any consider-
able degree, the amount of the existing annuities and other charges
and expenses payable thereout, it shall be lawful for the court to
order and decree that such surplus income may be paid over to
such persons as may be entitled to the residuary estate under the
provisions of the will, or the court may, in their discretion, order
and decree that the same be invested in real securities, public stocks
or bonds, or such securities as now are or may hereafter be author-
ized by law as investments by trustees, for the further or additional
security of such annuitants or legatees.

NOTE. This is Section 2 of the Act of February 23, 1853, P. L. 98,
I Purd. 1137, changed by inserting "investments" instead of "stocks or
bonds" in the first line and in corresponding places ; by changing "make
report to the court" to "file with said court;" by providing that the ac-
counts shall be filed at the request of any person interested ; and by in-
serting at the end "or such securities as now are or may hereafter be
authorized by law as investments by trustees."

479. REDUCTION OF FUND SET APART.

(/) Upon the application of any person interested in any resid-
uary estate, set apart as aforesaid, setting forth that, by reason of
the decease of any such annuitant, or by the happening of any



FIDUCIARIES ACT SECTIONS 26 (/), (g)-2j (o) i 369

other event, the charge of any annuity or legacy as aforesaid has
become extinguished, in fact or law, it shall be lawful for the said
court, from time to time, after due notice and inquiry into the
facts, to make an order and decree for the exoneration and dis-
charge of such part or portion or so much of the real estate, securi-
ties and investments, so set apart and appropriated, as may appear
to such court to be beyond the amount requisite or proper for the
purpose of providing a sufficient continuing security for the pay-
ment of the remaining annuities and legacies. Every such order
or decree shall have the same force and effect in respect to the
real estate, securities and investments, therein and thereby exon-
erated and discharged, as is declared in clause (d) of this section,
in respect to the residuary estate not specifically set apart and ap-



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 39 of 71)