Raymond Moore Remick.

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

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propriated. An appeal from the entry of or refusal to enter such
order or decree may be taken to the proper appellate court within
six months, as in other cases.

NOTE. This is Section 3 of the Act of February 23, 1853, I Purd. 1137,
the phraseology being altered to conform to clause (e), and the last sen-
tence being added to correspond to clause (d).

480. RIGHTS TO ULTIMATE ENJOYMENT OF RE-

SIDUARY ESTATE SET APART NOT TO BE
AFFECTED.

(g) Nothing in this section contained, or in any decree or order
made by any orphans' court by the authority of this section, shall
be deemed or held to affect in any way the legal or equitable rights
of any person or persons interested in the residuary estate set apart
and appropriated as aforesaid, but all such rights to the ultimate
enjoyment of such estate shall remain and continue as before the
passage of this act, so far as the provisions of this section are
concerned.

NOTE. This is Section 4 of the Act of February 23, 1853, I Purd. 1138.
The changes are the substitution of "section" for "act" in the first and
third lines, and the addition, at the end, of the words "so far as the pro-
visions of this section are concerned."

481. DISCHARGE OF REAL ESTATE FROM LIEN OF

LEGACIES AND OTHER CHARGES, WHERE
PERSONS TO WHOM PAYMENT IS DUE CAN-
NOT BE FOUND, JURISDICTION; PETITION
AND NOTICE.

SECTION 27. (a) I. In all cases in which, under any proceeding
in any orphans' court of this commonwealth, or by any last will
24



370 FIDUCIARIES ACT SECTION 27 (a) i, 2

and testament, or by the provisions of this act, any dower, legacy,
recognizance or other charge shall have been imposed upon land,
or any part thereof, and such charge is due and payable, and the
person or persons to whom such payment is due cannot be found
after diligent and reasonable search, it shall be lawful for the
owner of the land charged to apply by petition to the orphans'
court of the county where said land is situated, or, in case said
land is divided by a county line, to the orphans' court of the county
where the mansion house may be situated, or, if there be no man-
sion house, in the county where the principal improvements may
be, or, if there be no improvements, in either county, setting forth
the circumstances of the case, the name or names of the person
or persons to whom such payment is due or the fact that such
names are unknown, and the time when such legacy or charge,
or any part thereof, became due and payable, and a description of
the land subject to the charge. Thereupon said court shall make
an order directing such petitioner to give public notice of the facts
set forth in such petition, by publication once a week for four
successive weeks in one or more newspapers published within or
nearest to said county or within or nearest to each of said counties,
requiring the person or persons to whom such legacy or charge,
or any part thereof, is due and payable, or who wish to lay claim
to the moneys as aforesaid, to appear in court on a day designated,
not less than twenty days after the last publication of said notice,
and show cause why the amount so due and payable, as set forth
in said petition, should not be paid into said court.

NOTE. This is the first part of Section i of the Act of July 14, 1897,
P. L. 269, 3 Purd. 3388, condensed by omitting unnecessary repetitions.
The first part has been changed so as to be uniform with clause (6) i of
this section. Provision has been made for cases where the land is divided
by a county line ; and the provisions for notice have been modified by
requiring publication for four weeks and appearance not less than twenty
days after the last publication, instead of publication for three weeks be-
fore the first day of the next term of court and appearance at the next
term.

482. HEARINGS; ASCERTAINMENT OF AMOUNT
OF CHARGE; PAYMENT INTO COURT; RE-
CORDING OF DECREE.

2. If no person shall appear to show cause, as aforesaid, or if
the person or persons appearing shall fail to show that he or they
are entitled to such moneys, the court, being satisfied of the truth
of the facts set forth in said petition, shall enter a decree that the



FIDUCIARIES ACT SECTION 27 (a) 2, (&) i 371

amount of such legacy or charge, or part thereof, due and pay-
able to the time of final decree, be paid into court, and that, upon
such payment, such real estate shall be discharged from the lien
of such legacy or charge, or from so much thereof as shall be so
paid into court. When the amount of such legacy or other charge
does not appear as a matter of record, the court may, by appoint-
ment of a master or by investigation in open court, ascertain and
fix such amount. A certified copy of such decree may be recorded
in the deed book in the office for recording deeds in every county
where such real estate or any part thereof is situated, in the same
manner and with like effect as deeds of conveyance of real estate,
are recorded, and shall be indexed by the recorder in the grantors'
index under the name of the decedent and in the grantees' index
under the name of the owner of the land ; and the charges for re-
cording shall be the same as are provided by law for similar
services.

NOTE. This is the remainder of Section i of the Act of July 14, 1897,
3 Purd. 3388, condensed in the same manner as the first part, and modified
as to the decree and recording so as to follow the provisions of the Act
of 1861, clause (c*) of this section.

483. WHERE CHARGE HAS BEEN PAID, OR IS PRE-
SUMED TO BE PAID, JURISDICTION.

(&) i. In all cases in which, under any proceeding in any or-
phans' court of this commonwealth, or by any last will and testa-
ment, or by the provisions of this act, any dower, legacy, recogni-
zance, or other charge shall have been imposed upon land, payable
presently or at a future time, and such charge shall have been paid,
or a period of twenty years shall have elapsed after the principal
of such charge has become due and payable and no payment shall
have been made within such period on account of such charge by
the owner or owners of the land, and no sufficient satisfaction,
release, acquittance or acknowledgment of payment thereof shall
be of record in the county in which the land is situated, it shall
be lawful for the orphans' court of said county, or, in case said
land is divided by a county line, then the orphans' court of the
county where the mansion house may be situated, or, if there be
no mansion house, in the county where the principal improvements
may be, or, if there be no improvements, in either county, to en-
tertain a petition for the discharge of said land from the lien of
said charge.



372 FIDUCIARIES ACT SECTION 27 (&) 1,2,3.

NOTE. This is the first part of Section i of the Act of May 8, 1895,
P. L. 44, 4 Purd. 4047, altered so as to apply only to charges enforceable
in the orphans' court. The section as it now stands includes encumbrances
and charges enforceable in the common pleas.

This part of the section has been modified so as to include legacies and
other charges, and thus supply Section i of the Act of June 8, 1893," P. L.
356, 4 Purd. 4046. The period has been made twenty years, which is the
ordinary period for presumption of payment, instead of twenty-one years.

The section in the Act of 1895 is very long and consists of one sen-
tence. It is here subdivided for the sake of clearness.

Where, on a petition under Section 27 (&) of the Fiduciaries Act of
1917, P. L. 447, for the discharge of land from a dower fund, the weight
of the evidence showed that the fund in question was paid to the parties
thereto entitled more than twenty-eight years before the hearing of the
case, and in the opinion of the court was sufficient to establish this fact,
a decree discharging the land from the fund was entered. Harbold's Est.,
34 York 149.

484. PETITION.

2. Such petition shall be presented by the owner or owners of
said land or any part thereof, shall be duly verified by affidavit,
and shall set forth the facts and allege that said charge has been
paid or that no payment of principal or interest has been made
within said period of twenty years on account of said charge by
the present owner or owners, or, so far as can be ascertained, by
his or their predecessors in title, and shall state the names of all
known parties interested in such charge, their places of residence,
if known, and a description of the lands subject to the charge and
sought to be released and discharged.

NOTE. This is the second part of Section i of the Act of May 8, 1895,
P. L. 44, 4 Purd. 4047.

485. CITATION.

3. Upon the presentation of such petition, it shall be lawful for
said court to issue a citation in the manner authorized by law to
all such parties, which citation shall be served as other citations are
required to be served, and shall require the parties to appear in
court on a day designated, to show cause why said land should not
be discharged from the lien of such dower, legacy or other charge.

NOTE. This is substituted for the provisions of Section i of the Act
of May 8, 1895, P. L. 44, 4 Purd. 4047, as to service of notice and publi-
cation thereof in newspapers.



FIDUCIARIES ACT SECTION 27 (6) 4, (c) 373

486. HEARING, DECREE, RECORDING OF DECREE.

4. If the court, aided if necessary by the report of a master,
shall determine, at a hearing held in pursuance of said citation,
that such dower, legacy or other charge has been paid or is other-
wise no longer chargeable upon the land by reason of any presump-
tion of payment, of if no person shall appear to answer the cita-
tion, or if all parties in interest shall have joined in the petition
upon which such citation was issued, the court, being satisfied of
the truth of the allegations of the petition, shall decree that the
land subject to the charge, or any part thereof, sought to be re-
leased or discharged, shall be released and discharged from the
same and the payment thereof ; and a certified copy of such de-
cree may be recorded in the office for recording deeds in each
county where such land or any part thereof is situated, upon the
terms and with the effect provided in clause (a), paragraph 2 of
this section.

NOTE. This is the last part of Section i of the Act of May 8, 1895,
4 Purd. 4047, altered so as to conform to the changes made in the previous
parts of the section, and so as to provide for determination of the ques-
tions in the same proceeding instead of requiring the persons claiming
payment to institute another proceeding to enforce payment.

Section 2 of the Act of 1895, 4 Purd. 4048, provides for the appoint-
ment of guardians ad litem, and is omitted as unnecessary in view of the
general provisions of Section 59 () of the present draft. (See 616 infra.)

487. CASES NOT PROVIDED FOR IN CLAUSES (A)

AND (B).

(c) Whenever any dower, legacy, recognizance or other charge
has been or shall be charged upon or payable out of real estate, by
virtue of any last will and testament, by the provisions of this act,
or under any proceeding in any orphans' court of this common-
wealth, or whenever it shall be claimed that such charge exists, it
shall be lawful for said court, in any case not provided for by the
preceding clauses of this section, on petition of the devisee or
heir of such real estate, or any owner thereof, claiming under such
devisee or heir, to authorize such petitioner to pay into said court
the full amount of such legacy or other charge; whereupon the
said court shall make a decree, discharging such real estate from
the lien of such legacy or other charge, or from so much thereof
as shall be so paid into court ; and a certified copy of such decree
may be recorded in the office for recording deeds in any county
where such land or any part thereof is situated, upon the terms



374 FIDUCIARIES ACT SECTION 27 (c), (rf)

and with the effect provided in clause (a), paragraph 2 of this
section.

NOTE. This is Section i of the Act of May i, 1861, P. L. 420, I Purd.
1136, modified so as to cover all cases not provided for by the preceding
clauses of the present section of the draft, and with some changes in
phraseology.

Section 2 of the Act of May 17, 1866, P. L. 1096, 3 Purd. 3388, is covered
by the provisions of this and the preceding clauses, and is therefore rec-
ommended for repeal.

Sections 22 and 23 of the Act of April 26, 1850, P. L. 581, 3 Purd. 3436,
extending to legacies charged on land the provisions of Section i of the
Act of March 31, 1823, P. L. 216, relating to the satisfaction of mortgages,
are recommended for repeal, the matter being sufficiently covered by the
present section of this draft.

The Fiduciaries Act of June 7, 1917, P. L. 447, does not give the or-
phans' court exclusive jurisdiction of the remedy for the collection of
owelty of partition, charged by recognizance in the orphans' court, and the
jurisdiction of the court of common pleas is still concurrent in such case.

"It will be observed that clause (c) of Section 27, above mentioned,
provides that whenever any dower, legacy, recognizance, or any other charge
shall be charged upon or payable out of real estate by virtue of any last
will and testament by the provisions of this act, or any proceeding in any
orphans' court of this commonwealth, * * * it shall be lawful for said
court, * * * on the petition of a devisee or heir, to authorize such peti-
tioner or debtor to pay into court the full amount of such legacy or charge,
etc. Nowhere is it provided that this shall be the exclusive method of
procedure. It is true that the Act of June 7, 1917, above cited, repeals the
Act of May 17, 1866, P. L. 1096, which provided a method of procedure
in the orphans' court on a recognizance such as this. The procedure by
sci. fa. in the common pleas upon a recognizance entered in the orphans'
court has been so long practiced and approved by the courts in this state
that it will take a positive act of assembly to destroy that remedy * * *
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 court cannot so hold." GILLAN, P. J., in Poe's Est, 47 Pa. C. C.
590, 29 Dist 857, 68 P. L. J. 635, 15 Del. 381.

488. DISTRIBUTION OF MONEYS PAID INTO
COURT.

(d) All moneys, when paid into court under the provisions of
any of the preceding clauses of this section, shall remain therein
until the legatee or other person claiming the same shall present
a petition for the distribution thereof, whereupon the court shall,
after due notice to all parties interested, make distribution of said
moneys to the persons legally entitled to receive the same, or may,



FIDUCIARIES ACT SECTIONS 27 (d), (<>), (/)-28 (a) 375

in its discretion, appoint an auditor for the purpose of making
such distribution.

NOTE. This is a combination of Section 2 of the Act of May i, 1861,
P. L. 420, I Purd. 1136, and Section 2 of the Act of July 14, 1897, P. L.
269, 3 Purd. 3389. The provision for appointment of an auditor is derived
from Section 2 of the Act of May 17, 1866, P. L. 1096, 3 Purd. 3388, but
the appointment is made discretionary.

The Act of 1861 provides that distribution shall be made "in the man-
ner provided for the distribution of the proceeds of sheriff's sales, when
paid into court and directed to be paid out."

See Poe's Est, 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L. J. 635, 15 Del. 381.

489. PAYMENT OF COSTS.

(e) All costs of proceedings under the provisions of any of
the clauses of this section shall be paid as may be directed by the
court.

NOTE. This is substituted for Section 3 of the Act of 1895, 4 Purd.
4048, which provides that the costs of proceedings on petitions presented
under the act shall be paid by the petitioners, but that the costs of proceed-
ings instituted in response to orders under the provisions of the act shall
abide the decision of such proceedings.

Section 4 of the Act of 1895 is a general repealing clause, with a proviso
that the act "shall not apply to any proceedings now pending, but the same
may be proceeded with under existing laws to final decree."

490. APPEALS.

(/) Any party aggrieved by any definitive order or decree en-
tered by the court under any of the provisions of this section may
appeal from such order or decree to the proper appellate court as
in other cases.

NOTE. This is a new clause, introduced in order to remove any pos-
sible doubt as to the right of appeal. Some of the existing acts, such as
Section i of the Act of May 8, 1895, 4 Purd. 4048, contain provisions that
the decree "shall forever thereafter operate as a release and discharge of
the land from the incumbrance of the charge and shall bar all actions
brought thereon," without making any provision for an appeal.

491. POWERS OF EXECUTORS AS TO REAL ES-

TATE, MERE AUTHORITY TO SELL THE
SAME AS A DEVISE TO SELL.

SECTION 28. (o) The executors of the last will of any decedent,
to whom is given thereby a naked authority only to sell any real
estate, shall take and hold the same interests therein, and have the



376 FIDUCIARIES ACT SECTION a8 (o)

same power and authorities over such estate for all purposes of
sale and conveyance, and also of remedy by entry, by action or
otherwise, as if the same had been thereby devised to them to be
sold, saving always, to every testator, the right to direct otherwise.

NOTE. This is Section 13 of the Act of 1834, I Purd. 1099, which corre-
sponded to Section 14 of the Commissioners' Draft. It was derived sub-
stantially from Section 4 of the Act of March 31, 1792, 3 Sm. L. 66.

"The auditing judge is of the opinion that the power to carry out the
charitable purpose is not confined alone to the first named executor. It
is true that in conferring this power the testator speaks of 'my executor,'
using the singular number, but this the testator does because he appoints
one person sole executor, and when he later appoints succeeding executors
in the event of the original executor's death, etc., his apparent purpose
is that, in any event, there shall be some one in the office of executor who,
by virtue of their office, shall have the duty of carrying out this provision
of the will as well as the duty of performing the other services required
of executors. See, generally, Kershaw's Estate, 27 Dist R. 659; Mur-
phy's Estate, 184 Pa. 310; Sheet's Estate, 215 Pa. 164; Fiduciaries Act
of June 7, 1917, Sees. 28 and 56, P. L. 447." THOMPSON, J. (Adjudication),
Barnwell's Est, 49 Pa. C. C. 188, 29 Dist. 317, affd. in 269 Pa. 443.

A died leaving a will wherein the executor was directed to pay the debts
and funeral expenses, and a devise was made of $50 to a cemetery com-
pany. The rest and residue of his property, real, personal and mixed,
was given to his wife and to her heirs. The last clause of the will gave
the executor full power and authority to dispose of the real estate "as
may be for the best interest of my estate." It was agreed that the per-
sonal estate was sufficient to pay the debts, funeral expenses, the dense
to the cemetery company, costs of administration and taxes. The executor
sold the real estate at a public sale, and defendant paid some down money,
and subsequently defendant refused to pay the balance or to take title
on the ground that the executor could not convey a marketable title.
Held, as the personal estate was sufficient to pay the items mentioned,
there was no occassion for a sale of the real estate ; that the power to sell
did not operate as a conversion, and there was nothing in the will to
show that the testator intended that there should be a sale for the pur-
pose of distribution, and that, therefore, judgment should be entered for
the defendant

"It will be observed that there is no direction to the executor to sell.
His power of sale is 'as may be for the best interest of my estate.' Such
power does not operate as a conversion. In Chew v. Nicklin, 45 Pa. 84,
the syllabus is : 'Conversion is a question of intention ; and to effect it by
will, the direction to convert therein must be positive and explicit A bare
power to sell, given to executors by will, does not operate as a conversion.
The Act of Feb. 24, 1834, P. L. 70, was not intended to break descents or
work a conversion of real estate over which a naked power of sale had
been given to executors, but only to enable them to preserve and dispose
of the estate as though an interest had been devised to them instead, leav-



FIDUCIARIES ACT SECTION 28 (a) 377

ing the question of intention to convert to depend upon the will of the
testator.' Testator died after the passage of the Fiduciaries Act of June
7, 1917, P. L. 447, but the 28th section of that act is an exact copy of the
Act of 1834, referred to above. The above case was followed in Hunt's
and Lehman's Appeals, 105 Pa. 128." STEWART, P. J., in Kolb v. O'Hay,
28 Dist. 194, 16 North. 289.

Testatrix after disposing of her household personal property devised
all the rest, residue and remainder of her estate, real, personal and mixed,
"to all my children, share and share alike, and to their heirs and assigns
forever," and in the next clause appointed a son and daughter as ex-
ecutors giving them authority "to execute deed for my property." Held,
(i) the gift in the residuary clause was an absolute gift to the testatrix's
children not cut down or abrogated by the "authority to execute deed"
subsequently granted to her executors, and (2) the executors cannot
alone convey a good marketable title in fee simple to testatrix's real
estate. ENDUCH, P. J., held : "The question involved in this case stated
arises upon the will of Elizabeth Eisenbise, who was the owner of the
house and lot No. 311 North Front Street, in the city of Reading, and
who died August 31, 1920, leaving a will. In it, after bequeathing to her
daughter, Annie Eisenbise, all her 'household furniture and personal
property' (i. e., all her household personal property), the testatrix
proceeds as follows :

" 'As to all the rest, residue and remainder of my estate, real, personal
and mixed, I give, devise and bequeath to all my children share and
share alike, and to their heirs and assigns forever.

" 'I hereby appoint my son, Peter W. Eisenbise, and my daughter, Annie,
to be the executors of this, my last will and testament, and give them
authority to execute deed for my property.'

"The first of these clauses clearly imports an absolute gift to the testa-
trix's children. Such a gift, it is settled by many decisions, is not to be
treated as cut down or abrogated by a subsequent provision not equally
clearly and necessarily manifesting a purpose so to do: Hiestand v.
Meyer, 150 Pa. 501, 505; Yost v. Ins. Co., 179 id. 381; Ault v. Karch,
220 Id. 366; Moyer v. Rentschler, 231 Id., 620, 622; Pattin v. Scott,
270 Id. 49, 51. Here the absolute gift to the children is followed by an
'authority to execute deed' for the testatrix's property. Such a pro-
vision may vest in the executors the estate in the land as fully as if it
were devised to them to be sold : Shippen's Adm'r. v. Clapp, 36 Pa. 89.
The Fiduciaries Act 7 June, 1917, Section 28 (a), P. L. 497 provides
that:

" 'The executors of the last will of any decedent, to whom is given thereby
a naked authority only to sell any real estate, shall take and hold the same
interests therein, and have the same power and authorities over, such
estate for all purposes of sale and conveyance and also of remedy by
entry, by action, or otherwise, as if the same had been thereby devised
to them to be sold, saving always to every testator the right to direct
otherwise.'

"The power thus created, however, is one which, in the absence of ex-
press direction to sell, arises by implication from a confusion of realty
and personalty, in the testator's direction to his executors to convert and



378 FIDUCIARIES ACT SECTION 28 (a), (&), (c)

distribute: see Myers' App. 62 Pa. 104, 107; Gray v. Henderson, 71 Id.
368, and therefore can hardly be regarded as standing upon the same
plane with the preceding gift to the children in point of clearness,
necessity and absoluteness. Manifestly, where a testator makes a pro-
vision contrary to the effect of the statute and fails to supersede it by
another capable of overcoming it, he must be deemed to 'direct otherwise'
within the meaning of the enactment above quoted.

"Our conclusion is that the later direction does not abrogate the pre-
ceding one; that under the will of Elizabeth Eisenbise, the plaintiffs,



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 40 of 71)