Raymond Moore Remick.

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

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orphans' court.

Exceptions filed to a decree because it made no provision for the
ascertainment of rental values of the premises allotted and the mesne
profits of the business there conducted during the occupancy of the
premises by one of the parties in interest were dismissed where there
were no facts before the court upon which to base an appropriate finding
and where, from facts assumed from argument of counsel there would
seem to be no reason why the parties in interest should not be able to
reach an amicable adjustment; with leave to apply by petition for
necessary relief if later required. Battersby's Estate, 29 Dist. 221.

30. RULE TO SHOW CAUSE WHY SALE SHOULD
NOT BE MADE; DECREE OF SALE.

SECTION 21. Upon an appraisement or valuation of real estate
made as provided in Section 9 or Section 10 of this act, should
all the parties neglect, after due notice, as provided in Section n
hereof, or refuse to take the same or any part thereof at the
valuation, or to bid above the appraisement as provided in Sec-
tion I2 1 hereof, the court shall, on the application of any one
of the parties, grant a rule upon the other parties interested, to
show cause why the estate, or part thereof, so appraised and not
taken at the appraisement or bid for, should not be sold; which
rule shall be returnable at such time as the court, having respect
to the circumstances of the case, may direct ; and service of such
rule shall be made in the manner provided by law for the service
of citations in the orphans' court. On the return of such rule,
the court may, on due proof of notice to all persons interested,
make a decree authorizing and requiring the executor or admin-
istrator, as the case may be, to expose such real estate, or part
thereof, to public sale, at such time and place, and on such terms
as the court may decree : Provided, That the rule to show cause
herein directed may be dispensed with by the court, on the



1 (See 11-16 supra.)



26 PARTITION ACT SECTIONS 21-22

application of all the parties in interest, if of full age and sui
juris, and of the guardians or committees of such as are weak-
minded persons for whom guardians have been appointed, minors,
lunatics or habitual drunkards, for such decree ; and 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 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 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; and in any case the court may, by general rule
or special order, require such further notice as it shall deem
advisable.

NOTE. This is Section 42 of the Act of March 29, 1832, 3 Purd. 3438,
which was founded on Section I of the Act of April 2, 1804, P. X,. 459,
4 Sm. L. 183-4, and Section 2 of the Act of March 26, 1808, P. L. 144, 4
Sm. L. 518-9, the provision for making the rule returnable later than the
next regular session of the court being new in the Act of 1832.

The changes now suggested are to modify the language so as to include
cases where there is a division into fewer purparts than parties entitled
(now covered by Section 7 of the Act of April 7, 1807, P. L,. 155, 4 Sm. L.
398 at p. 400, 3 Purd. 3440), and cases of failure or refusal to take some
purparts (now covered by Section i of the Act of April 15, 1845, P. L.
458, 3 Purd. 3440) ; to substitute "parties" for "heirs," in line 3 and other
places ; to insert the provisions as to lunatics, etc. ; to substitute a new
provision as to service of the rule; and to add, at the end, provisions for
notice of sale similar to those in Section 16 (g) (see 438 infra) of the
Fiduciaries Act.

The Act of June 12, 1893, P. L. 461, 3 Purd. 3447, and the amendment
of May 23, 1913, P. L. 304, 6 Purd. 7051, relating to sales of real estate
for the purpose of distribution on petition of all parties in interest, are
covered by Section 23 (see 32-3 infra) of the present draft.

31. COMBINATION OF RULE TO ACCEPT OR RE-
FUSE WITH RULE TO SHOW CAUSE WHY
SALE SHOULD NOT BE MADE.

SECTION 22. In all cases of the partition or valuation of real
estate, the orphans' court may, upon the application of any
party in interest, instead of the separate rules herein provided
for such cases, grant a rule upon the parties interested to appear,
and accept or refuse the said real estate at the valuation, or, in
case they or any of them should neglect or refuse to take and



PARTITION ACT SECTIONS 22-23 (a) 27

accept the same as aforesaid, show cause why the said real estate,
or any part thereof, should not be sold.

Nore. This is Section 2 of the Act of April 25, 1850, P. L. 569, 3 Purd.
3440, except that "any party in interest" is substituted for "any of the
heirs of the decedent" after "the application of the widow," and "herein
provided for" is substituted for "heretofore issued in," after "separate
rules."

32. SALES FOR THE PURPOSE OF DISTRIBUTION,
ON PETITION OF ALL PARTIES' INTEREST;
IN GENERAL.

SECTION 23. (a) Whenever any person shall die seized of real
estate, and the parties in interest desire the same to be converted
into money for distribution, it shall be lawful for the orphans'
court of the proper county, in its discretion, upon the joint
petition of the widow and heirs, or devisees, and the guardians
or committees of such as are minors or under disability, in whom
the real estate of the decedent shall have vested by descent or
will, and legatees whoe legacies are charged on said real estate,
or the representatives of such as may be deceased or under
disability, to order the executor or administrator, or a trustee
to be appointed by said court, to make sale of said real estate.
Such petition shall set forth the description of the property, the
desire to have the same sold, and its estimated value according
to the affidavits of two disinterested and competent persons, and
said petition shall be duly sworn to. Said order shall provide
that, before making sale, the executor, administrator or trustee
shall give bond, in double the estimated value of the said real
estate, and shall proceed thereafter in all respects in the manner
provided by this act in cases of the sale of real estate under
proceedings in partition. The proceeds of such sale, after pay-
ment of the expenses thereof, shall be distributed to and among
those entitled thereto, the same as real estate. Such sale shall
have the same effect in all respects as a public sale in proceedings
in partition of real estate under this act.

NOTE. This is Section i of the Act of June 12, 1893, P- L. 461, 3 Purd.
3447, as amended by the Act of May 23, 1913, P. L. 304, 6 Purd. 7051, with
further changes.

The Act of May 14, 1874, P- L. 166, i Purd. 1120, relating to real estate
valued at not more than one thousand dollars, is supplied by the Act of
1893 and should be repealed. The Act of 1874, however, has been fol-
lowed in the new draft as to the provision that the petition shall set



28 PARTITION ACT SECTIONS 23 (a), (fr)-24

forth the estimated value of the property, and that this estimate shall be
supported by the affidavits of disinterested persons.

The Act of 1874 provided that the proceedings should be the same as
those in cases of sales for payment of debts. The Commissioners con-
sider that the reference to proceedings in partition is more appropriate.

In the new draft, the words "or devisees" have been inserted in jine 6;
the words "or under disability" have been inserted in line u; the words
"to be appointed by said court" have been inserted after "trustee" in line
12; and "estimated" has been substituted for "appraised" in line 19. The
order of the clauses has also been altered for the sake of clearness.

Where an intestate left him surviving no widow, and five minor children
as his sole heirs at law, they having but one guardian, a petition by said
minors, through such guardian, is their joint petition within the meaning
of the act. Fogelsanger's Estate, 267 Pa. 321. no Atl. 172.

33. LANDS IN DIFFERENT COUNTIES.

(&) When the lands, in respect to which a petition for sale
shall be filed under the provisions of clause (a) of this section,
shall lie in one or more adjoining tracts in different counties, or
shall lie in two or more counties, but not in adjoining tracts, the
proceedings shall be in the courts designated in Sections 37 and
38 l of this act, respectively.
NOTE. This clause is new.

1 (See 50-56 infra.)

34. APPOINTMENT OF TRUSTEE TO MAKE SALE.

SECTION 24. Whenever any real estate shall be ordered to be
sold under proceedings in partition, the orphans' court is hereby
authorized and required, in case of the neglect or refusal of the
executor or administrator to execute such order, or in case there
be no executor or administrator, or in case the court for any
reason deems it advisable, to appoint some suitable person trustee
for the purpose of making such sale, who shall be subject to the
same restrictions, and have the same powers, and whose proceed-
ings shall have the same effect, to all intents and purposes, as
are provided in the case of such sales by executors or ad-
ministrators.

NOTE. This is Section 44 of the Act of February 24, 1834, P. L. 81, 3
Purd. 3439, which was not included in the draft prepared by the Com-
missioners of 1830.

The words "or in case the court for any reason deems it advisable"
have been inserted in order to confer upon the court a discretion which,
it has been held, does not now exist: Arble's Estate, 161 Pa. 373.

Under Section 24 of the Orphans' Court Partition Act of June 7,



PARTITION ACT SECTIONS 24-25 29

1917, P. L. 337, which authorizes the court, if for any reason it deems it
advisable, to appoint some suitable person trustee for the purpose of
making a sale, the court will appoint an independent trustee for such
purpose where the personal interests of the executors are in conflict with
the interests of the petitioners to have the sale made promptly and bad
feeling exists between them.

Semble. The court may also make such appointment where the execu-
tors have discharged their active duties and are functi officii.

"Under the will of Ann Whitaker, who died in 1890, a large part of
her real estate remaining undivided, this partition proceeding was brought
and has been so far pursued that it is now ripe for the appointment of a
trustee to conduct the sale.

"Parties representing about one-third interest have petitioned for the
appointment of an independent trustee, alleging that reasons exist render-
ing it advisable to appoint some suitable person other than the surviving
executors. The master, in a careful and well-considered report, has
found that these reasons exist.

"It might well be argued that the executors are functi officii (see
Henson's Estate, 12 Dist. R. 326), for the reasons that they qualified over
thirty years ago, their active duties have long since ceased and certain
shares of the real estate have passed by the wills of the devisees of Ann
Whitaker to their devisees, and, in turn, by the wills of the latter to
certain of the present parties.

"Upon reviewing the testimony taken before the master, we concur in
his findings, are of the opinion that we should exercise the discretion
permitted by the act and appoint some disinterested and suitable person to
execute the order of sale."

Henderson, J., in Whitaker's Est. 30 Dist. 814, 35 York 99.

35. BOND OF EXECUTOR, ADMINISTRATOR OR
TRUSTEE MAKING SALE.

SECTION 25. In all cases where the carrying out of any decree
of the court under the provisions of this act shall involve the
receipt of money, the court shall direct the person acting under
the decree to file a bond to the commonwealth in a sufficient
amount conditioned for the proper application of all moneys
to be received. Such bond shall inure to the benefit of all per-
sons interested and be executed by two individual sureties or by
one corporate surety, approved by the court. No such decree
shall be executed until such bond, with sureties as may be re-
quired, 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 is a copy of Section 16 (/) cf the Fiduciaries Act. (See
437 infra.) See the note to that section.



30 PARTITION ACT SECTIONS 26-27-28

36. DISCHARGE OF LIENS BY SALE.

SECTION 26. All public or private sales of real estate or of any
part or purpart thereof, under the provisions of this act, shall
have the effect of judicial sales as to the discharge of liens upon
the real estate or part or purpart thereof so sold.

NOTE. This supplies Section 42 of the Act of February 24, 1834, P. L.
81, 3 Purd. 3439, which extended to sales in partition the provision of
Section 21 of the Act of April 19, 1794, 3 Sm. L. 143, as to discharge of
real estate from the debts of the decedent.

37. RECOGNIZANCE BY PURCHASER.

SECTION 27. In all cases of sales of real estate under the pro-
visions of this act, when the entire purchase money shall not be
paid in cash, the purchaser or purchasers shall enter recognizance
in the orphans' court, with sufficient security, to be approved by
said court, for the payment of the purchase money, or any bal-
ance thereof, over and above the costs and expenses of said pro-
ceedings, to the parties who may be entitled to the same. Such
recognizance shall be a lien on the real estate so sold until fully
paid and satisfied.

NOTE. This is founded on the last part of Section i and Section 2 of
the Act of May 23, 1871, P. L. 274, 3 Purd. 3446, substituting "parties"
for "widow, heirs or legatees."

Section 2 of the Act of 1871, 3 Purd. 3446, provides that before bring-
ing suit on such recognizance the person entitled to receive the money
shall give a refunding bond, and that if he is unable to do so, the money
shall be put at interest as directed in Section 41 of the Act of February
24, 1834.

As is noted under Section 47 (fr) of the Fiduciaries Act (see 549 infra)
Section 41 of the Act of 1834, as to refunding bonds, has become obsolete
and is recommended for repeal. Section 45 of the Act of 1834, relating
to the giving of refunding bonds by distributees of the proceeds of real
estate sold under order of the orphans' court, is also recommended for
repeal. See note to Section 16 (&) of the Fiduciaries Act (see 447 infra).

Section 2 of the Act of 1871 is, therefore, also recommended for repeal.

38. NO OBLIGATION TO SEE TO APPLICATION OF

PURCHASE MONEY.

SECTION 28. Whenever a public or private sale of real estate
shall be directed or confirmed under the provisions of this act,
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.



PARTITION ACT SECTIONS 28-29 31

NOTE. This is copied from Section 16 (p) of the Fiduciaries Act
(see 455 infra). It supersedes Section i of the Act of March 27, 1865,
P. L. 45, 3 Purd. 3445, and Section i of the Act of April 28, 1868, P. L.
105, 3 Purd. 3445, relating to payment into court of the purchase money
on a sale in partition, the former extending to sales in partition the
provisions of Section 19 of the Act of February 24, 1834, P. L. 70, i
Purd. rt22, which related to sales by executors under testamentary powers,
and the Act of 1868 providing that the court might, in its discretion,
require payment into court or make such order as might be just in the
premises.

As is noted under Section 30 of the Fiduciaries Act (see 496 infra),
Section 19 of the Act of 1834 was superseded by the Act of June 10,
1911, P. L. 874, 7 Purd. 7703, which relieves purchasers of obligation to
see to the application of purchase money, and is trie basis of Section 30
of the Fiduciaries Act.



39. WIDOW'S INTEREST TO REMAIN IN HANDS OF
PURCHASER.

SECTION 29. Where a decree for the sale of real estate shall be
made by the orphans' court, in the event provided for in Section
2I 1 hereof, the court shall direct that, if there be a widow entitled
to a life interest in such real estate under the intestate laws, or
should such widow elect to take against the will and thereby be
entitled to such life estate, the share of the widow in the pur-
chase money shall remain in the hands of the purchaser, during
the natural life of the widow. The interest thereof shall be
semi-annually and regularly paid to her by the purchaser, his
heirs and assigns, holding the premises, and may be recovered
by distress or otherwise as rents are recoverable in this com-
monwealth, which the said widow shall accept in full satisfaction
of her dower in such premises ; and at her decease, her share of
the purchase money shall be paid to the persons legally entitled
thereto.

NOTE. This is Section 43 of the Act of March 29, 1832, P. L. 203, 3
Purd. 3440, which was founded on Section 5 of the Act of April 14, 1828,
P. L. 484 (10 Sm. L. 246).

The only changes now made are to insert in lines 3 and 4, the words
"if there be a widow entitled to a life interest in such real estate," instead
of the words "if there be one," and to change "annually" to "semi-
annually."

1 (See 30 supra.")



32 PARTITION ACT SECTIONS 29-30

The fact that the Orphans' Court Partition Act of 1917 (P. L. 338) in
Sections 15, 18 and 29 appears to concede to the widow a lesser estate
in lands of the decedent than that conferred by the Intestate Act of 1917
(P. L. 431) approved the same day, does not in any way affect the
quantum of the estate taken by the widow under the latter act. If there
were any conflict between the two Acts, the Intestate Act must govern as
to the interest taken, the Partition Act having to do merely with pro-
cedure and the enforcement of rights conferred by the Intestate Act
But the alleged conflict is only apparent, and the references in the
Partition Act to the life estate of the widow are evidently intended to
refer to estates of persons dying prior to the Intestate Act of 1917.

Dodd's Est, I Wash. 236. (See extract from opinion under Sec. 21,
supra.)



40. OTHER UNDIVIDED LIFE INTERESTS TO RE-
MAIN CHARGED ON REAL ESTATE.

SECTION 30. In the case of a sale of real estate under pro-
ceedings in partition in the orphans' court, should any person
other than the widow of the decedent be entitled, under the in-
testate laws, or should any person, including the widow of the
decedent, be entitled under the will of the decedent to a life
interest in an undivided share of the real estate, the share of
such person shall not be paid to him or her, but shall remain
charged on such or other real estate, -according to the directions
of the court ; and the legal interest thereof shall be semi -annually
and regularly paid by the purchaser of such real estate, his heirs
or assigns, holding the same, during the natural life of such life
tenant, and the same may be recovered by such life tenant as debts
of like nature in this commonwealth are recoverable, and on the
death of the life tenant, the said principal sum shall be paid by
the person by whom the said real estate shall have been pur-
chased, his heirs or assigns, holding the premises, to the per-
sons thereunto legally entitled.

NOTE. This includes the first part of Section 46 of the Act of February
24, 1834, P. L. 82, 3 Purd. 3445, which was new in that act. It is now
altered to conform to Section 19 of this draft (see 28 supra). The re-
mainder of the section relates to sales fo,r the payment of debts, and is
covered in the Fiduciaries Act.



PARTITION ACT SECTIONS 31-32 33

41. APPOINTMENT OF TRUSTEE TO HOLD PRIN-

CIPAL OF SUM IN WHICH THERE IS A LIFE
INTEREST.

SECTION 31. In any case of a sale of real estate under the
provisions of this act, instead of the life interest of any person
in an undivided share of the real estate remaining charged on the
real estate as aforesaid, the court may, on petition of the person
entitled to the life interest, or of the purchaser, direct the pur-
chaser to pay such principal sum to a suitable person or corpora-
tion, who shall be appointed by the court as trustee to receive and
hold such principal sum, invest the same in securities authorized
by law, pay the income thereon, after deducting all legal charges,
to the person entitled thereto, and, upon the death of such person,
to pay over such principal sum to the persons thereunto legally
entitled, after deducting all legal charges thereon. Such trustee
shall enter such security as the court may direct, and 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.

NOTE. This is a new section intended to provide a method of relieving
the real estate of the charge of a life interest in an undivided share. Its
provisions are founded to some extent on Section 23 of the Fiduciaries
Act (see 469 infra).

42. PROCEDURE WHERE EXECUTOR, ADMINIS-

TRATOR, OR TRUSTEE BECOMES INCAPABLE,
IS REMOVED OR DIES.

SECTION 32. In all cases where the letters testamentary or of
administration shall be revoked, or the executor, administrator
or trustee, or one or more of the co-executors, co-administrators
or co-trustees, authorized to make a sale of real estate under the
provisions of this act, shall be removed by the court, or shall die,
or become insane, or otherwise be incapable, before such sale is
effected or before a deed of conveyance is made to the pur-
chaser, such sale or such conveyance shall be made in the man-
ner and with the effects as provided by law in other cases of sales
by executors, administrators or trustees, under like circumstances.

NOTE. This is a new section. Repetition of the provisions of Section
16 (;') (see 441-6 infra) of the Fiduciaries Act seems unnecessary.

Section 47 of the Act of 1832, 3 Purd. 3441, providing for execution
of the deed where an executor, administrator or guardian who has made
3



34 PARTITION ACT SECTIONS 32-33

a sale becomes incapable, is removed or dies, applies to all sales under
order of the orphans' court. It and the related acts are covered by
Section 16 (/) (see 441-6 infra) of the Fiduciaries Act.

Section 4 of the Act of April 9, 1849, P. L. 525, 3 Purd. 3441, makes
similar provisions where a trustee appointed by the court to make a sale
in partition is removed, dies or becomes incapable before making con-
veyance.

43. APPOINTMENT OF AUDITOR TO ASCERTAIN
LIENS OR INCUMBRANCES.

SECTION 33. In all cases where, in consequence of proceedings
in partition, the share, or any part thereof, of a party in interest,
in real estate, shall be converted into money, either by reason of
the impracticability or inequality of partition, or by virtue of a
sale or otherwise, the orphans' court, before making a final
decree confirming the partition or distributing the proceeds of
sale, as the case may be, may appoint a suitable person as auditor,
to ascertain whether there are any liens or other incumbrances on
such real estate, affecting the interests of the parties. If it shall
appear by the report of such auditor or otherwise, that there
are such liens, the court may order the amount of money which
may be payable to any of the parties against whom liens exist,
to be paid into court, and shall have full power to decree the
distribution thereof among the creditors or others entitled thereto.
Where recognizance or other security shall be given for the pay-
ment of money, the court may make an order on the party giving
such recognizance or other security, to pay the amount thereof
into court, when the same shall become due, to be distributed in
like manner among the persons holding liens at the time of the
partition.

NOTE. This is Section 49 of the Act of 1832, 3 Purd. 3442, which was
new in that act.

The changes now made are to substitute "a party in interest" for "an
heir" in line 3; the words from "distributing" to "may be," for "sale
as aforesaid" in line 7; "full power to decree" for "the like power as to"
in line 15; and "entitled thereto" for "as is now exercised by the courts



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 4 of 71)