Raymond Moore Remick.

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

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executors, could not alone convey a good marketable title in fee simple
to said premises to the defendants; and that therefore

"Under the case stated, judgment is to be entered for the defendants
and against the plaintiffs for the sum of $400, with interest from October
21, 1920, and costs of suit." Eisenbise's Executors v. Lebo, 13 Berks 308.

492. PRIVATE SALES, CONVEYANCES OR LEASES

AUTHORIZED.

(&) All powers to sell or let real estate on ground rent, con-
tained in any will, shall be deemed and taken to authorize sales,
conveyances or leases, either public or private, unless expressly
restricted by the said instrument to one or the other mode.

NOTE. This is a part of Section i of the Act of March 14, 1849, P. L.
164, 4 Purd. 4924. After "any will," the words "hereafter executed" are
omitted. The remainder of the section relates to powers contained in
deeds or other instruments and to private sales or leases made before the
passage of the act.

Section 2 of the Act of March 14, 1850, P. L. 195, i Purd. 376, also
validated private sales and leases theretofore made.

493. POWERS NOT GIVEN TO ANY PERSON BY

NAME OR DESCRIPTION DEEMED TO BE
GIVEN TO EXECUTORS, BUT TO BE EXER-
CISED UNDER CONTROL OF THE ORPHANS'
COURT.

(c) All powers, authorities and directions, relating to real es-
tate, contained in any last will, and not given to any person by
name or by description, shall be deemed to have been given to the
executors thereof ; but no such power, authority or direction shall
be exercised or carried into effect by them, except under the con-
trol and direction of the orphans' court having jurisdiction of their
accounts, and after the entry of security if the court shall so direct.

NOTE. This is Section 12 of the Act of February 24, 1834, P. L. 73,
i Purd. 1098, which corresponded to Section 13 of the Commissioners'
Draft. This, and the two following sections of that draft, were digested
from the Acts of March 31, 1792, Section 4, 3 Sm. L. 66, and March 12,
1800, 3 Sm. L. 433-



FIDUCIARIES ACT SECTION 28 (<r), (rf) 379

The previous law was stated in Lloyd v. Taylor, 2 Dallas 223,
i Yeates 422.
The words at the end, beginning with "and after the entry" are new.

The orphans' court has no jurisdiction under this section of the Fidu-
ciaries Act to grant an order of sale of real estate when the testator
merely provides that he requests his estate to be divided in equal shares
between his children living; and further provides that the executor shall
collect all his accounts and other specific personal property and divide the
same. Faus' Est, 50 Pa. C. C. 342.

494. POWERS OF SURVIVING, ACTING, OR RE-
MAINING EXECUTORS, OR ADMINISTRA-
TORS C. T. A. AS TO REAL ESTATE.

(d) In all cases wherein testators shall have devised their real
estate, or any part thereof, to their executors to be sold, or shall
have authorized or directed such executors to sell and convey such
real estate, or shall have directed such real estate to be sold without
naming or declaring who shall sell the same, if one or more of
such executors shall die, refuse, renounce, or be dismissed or dis-
charged, it shall be lawful for the surviving, acting or remaining
executor or executors, or for the administrator or administrators
with the will annexed, if such there be, to bring action for the re-
covery of possession of such real estate, and against trespassers
thereon, to sell and convey such real estate, or manage the same
for the benefit of the persons interested therein, and otherwise
act respecting the same, as fully and completely as he or they, to-
gether with such dying, refusing, renouncing, dismissed or dis-
charged co-executor or co-executors, would be empowered to do,
if there had been no death, refusal, renunciation, dismissal or dis-
charge, or, in the case of an administrator with the will annexed,
as fully and amply as if all the executors named in the will had
joined therein: Provided, That nothing in this clause shall be
deemed or taken to prevent any testator from directing, by his
last will and testament, otherwise than is herein declared and en-
acted.

NOTE. This is a combination of the provisions of Sections I to 5, in-
clusive, of the Act of March 12, 1800, 3 Sm. L. 433, I Purd. 1097-1098.

It is recommended that this be substituted for Section 14 of the Act of
1834, i Purd. 1099, which was derived from the Act of 1800, but is not
so complete.

It would seem that, in spite of the Act of 1834, the Act of 1800 is now
in force. See Section 8 of the Act of April 22, 1856, P. L,. 532 ; Ross v.
Barclay, 18 Pa. 179; Bell's Appeal, 66 Pa. 498.



380 FIDUCIARIES ACT SECTIONS 29-30

495. FIDUCIARIES MAY MAKE CONVEYANCE

THROUGH ATTORNEYS.

SECTION 29. Any fiduciary with power to convey lands or tene-
ments in this commonwealth, may make conveyance under such
power by and through an attorney or attorneys duly constituted,
and such conveyances shall be of the same validity as if executed
personally by the constituent ; and all conveyances so heretofore
bona fide made by such fiduciaries are hereby confirmed: Pro-
vided, That nothing herein contained shall authorize any fiduciary
to delegate to others the discretion vested in himself for the gen-
eral management of his trust.

NOTE. This is Section i of the Act of March 14, 1850, P. L. 195, I Purd.
376, except that "fiduciary" has been substituted for "trustee, executor or
other persons acting in a fiduciary character."

This section of the Act of 1850 seems to apply to other fiduciaries than
those included in the present act, and should not be generally repealed.
Section 2 of the Act of 1850, i Purd. 376, relates to the authority of
agents or attorneys in fact, and does not belong in the present act.

496. PURCHASERS OF REAL ESTATE FROM EX-

ECUTORS OR TRUSTEES NOT BOUND TO
SEE TO THE APPLICATION OF THE PUR-
CHASE MONEY.

SECTION 30. Whenever any person seized of real estate situated
in this commonwealth has died or shall die, having first made and
published his last will and testament, wherein said real estate is
devised to executors or trustees named therein in trust to make
sale thereof, or wherein the sale of real estate is authorized or
directed but no person is designated to make such sale, and the
executors have complied with the provisions of Section 28, clause
(c), of this act, or wherein said executors or trustees are author-
ized to make sale of said real estate, convert the same into money,
and distribute the proceeds of such sale or sales, or any part
thereof, or hold the same in trust for any particular purpose, or
for the use of any particular person or persons named in said last
will and testament, the person or persons purchasing the real estate
so sold from the executors or trustees named in said last will and
testament, under the power of sale or direction to sell contained
therein, shall take title thereto free and discharged of any obliga-
tion to see to the application of the purchase money.

NOTE. This is Section i of the Act of June 10, 1911, P. L. 874, 7 Purd.
7703. Section 2 of that act is merely a repealer.



FIDUCIARIES ACT SECTION 30 381

The changes are, to make the section include cases where sale is author-
ized or directed but no one is designated to make the sale, and cases
where the sale is merely for the purpose of distribution.

So far as sales under testamentary powers are concerned, Section 19 of
the Act of February 24, 1834, I Purd. 1122, providing for payment of pur-
chase money into court, is superseded by the Act of 1911, and is now rec-
ommended for repeal.

Section 30 of the Fiduciaries Act of June 7, 1917, P. L. 447, makes no
change in the law as it previously existed with respect to the lien of gen-
eral debts against a decedent's real estate where a discretionary power to
sell is given as mentioned in the act.

It was not the intention of this section to change the course of dev-
olution nor to break the current of descent by holding that a conversation
took place from the moment of the testator's death, under a mere
authority in the will to sell realty.

Nor did it intend to take away from general creditors the land as
security for the payment of debts. It still remained such security and
the lien of general debts attach thereto, but such debts will be discharged
not only by judicial sale, but also by sale under the discretionary power
of sale contained in the will.

"Since the passage of the Act of 1917, if the sale related back to the
date of testator's death, these debts would not be liens on the real estate;
yet the land has passed as land. There was no conversion, and, while all
the property of the testator was liable for the testator's debts, the real
estate was only liable within the year, unless the claim had been duly in-
dexed and suit brought; but if the Act of 1917 intended to wipe out the
line of general debts on real estate and another act states that such debts
can be collected from funds derived from the sale of such real estate,
only as such debts are proceeded on in a certain way, as we have indicated,
we are legislating land away from the reach of creditors when we hold
that the lien act cannot be put in operation because general debts are
not liens under the Act of 1917, and we close the door against recovering
these debts from the real estate of the testator; except possibly as the
executor might within the year petition for an order of sale for the pay-
ment of debts. To prevent such an inequitable conclusion, so much out
of harmony with all the law, we follow Judge BELL'S advice in Cadbury
v. Duval, 10 Pa. 265, 270 : 'Legislative enactments are to be expounded
as near to the use and reason of the prior law as may be, when this can
be done without violation of its obvious meaning; for, say the cases, it is
not to be presumed the legislature intended to make any innovation upon
the common law, further than the case absolutely requires.'

"From an examination of the will before us, it apparently comes within
the terms of Section 30. Not only is there an authority to convert to
sell, but also a direction to pay debts. This is nothing less than an author-
ity to convert into money and distribute. The will also directs the execu-
trix to pay 'to my father and mother * * * jointly, and after the death
of either to the survivor, the sum of seventy-five dollars each and every
month;' the sum necessary for this purpose, if computed on an interest-
bearing investment, would exceed the purchase price named in the con-



382 FIDUCIARIES ACT SECTIONS 30-31

tract of sale. The money, therefore, would be held 'in trust * * * for
the use of any person' named in the last will and testament It follows,
therefore, that the sale by the executrix would be made under a will con-
trolled by this act The purchaser not being required to see to the appli-
cation of the proceeds of sale would take the property free of the lien of
general debts: Piper v. Doran, (164 Pa. 430) ; and, with the explanation
here given, the judgment of the court below is affirmed." KEPHAKT, J., in
Davidson v Bright, 267 Pa. 580, no Atl. 301.

497. LEASES OF REAL ESTATE BY TESTAMEN-
TARY TRUSTEES AND GUARDIANS.

SECTION 31. Unless it be otherwise provided by the will, any
testamentary trustee shall have power to make a lease of real es-
tate included in the trust for a term not exceeding five years, and
any guardian shall have power to make a lease of real estate be-
longing to his ward for a term not exceeding five years that shall
expire before the minor, if living, would attain his majority. If
any testamentary trustee or guardian shall deem it advisable to
make such lease for a longer period than aforesaid, the orphans'
court of the county wherein such real estate shall be situated, on
the application of such trustee or guardian, being aided where nec-
essary by the report of a master, may authorize such trustee or
guardian to lease such real estate, on such terms and conditions,
at such rental, and for such period, as shall appear just and equi-
table to said court, with the same force and effect as though said
lease were made by the beneficial owner or owners and he or they
were sui juris and owned the property in fee. In all cases where
such application shall be approved by any orphans' court, the court
may direct said trustee or guardian, before making such lease, to
file his bond in said court, in such sum as the court shall direct, and
with good and sufficient corporate security, or with two good and
sufficient individual sureties, approved by said court, conditioned
for the faithful application or payment by him of all rents to be
received under said lease: Provided, That where such trustee
or guardian shall be a corporation, duly authorized by law, the
court may, in lieu of security as aforesaid, permit such corpora-
tion to enter its own bond without surety.

NOTE. This is a new section. Its form somewhat resembles that of the
local Act of March 18, 1869, P. L. 409, l Purd. 1088, relating only to
leases by guardians of mineral lands in Mercer county.

The existing law leaves the power of a trustee to make leases beyond
the lifetime of the beneficiary extremely doubtful : Craig's Estate, 24 D.
R. 851. The proposed section gives express power to make leases for



FIDUCIARIES ACT SECTIONS 31-32 (a) 383

five years and provides a method of obtaining authority to make longer
leases.

See forms 77, 78.

A testator devised his real estate in trust for his wife, for life, and on
her death to set aside out of the income of the real estate, or from the
proceeds from sale thereof, an undefined sum, sufficient to pay the rent
for all time of a pew in a certain church as a memorial to himself. Dur-
ing the lifetime of the cestui que trust the trustees leased the premises
for a period of ten years from Jan. i, 1909; this lease was renewed for
nine years at a rental of $25,000 per annum. Afterwards the trustees pre-
sented a petition to the orphans' court, under Section 31 of the Fiduciaries
Act of June 7, 1917, P. L. 447, praying for leave to execute lease to another
party for a term of ten years from Jan. i, 1928. The equitable life tenant
acquiesced in this petition but the cestui que trust in remainder objected,
and one of the heirs at law .also objected, on the ground that the trust
after the present life estate was void; held, that, as there was no fund
before the court for distribution, no question as to the ultimate distribution
of the corpus arose until after the termination of the life estate; there-
fore, no matter how desirable the lease might be from the standpoint of
the trustee, or that of the life tenant, since it was opposed by the cestui
que trust in remainder and by the heir at law and as the time when they
would have the legal right to present their claims was uncertain, the court
should not prematurely make any decree decisive of their rights or any
decree which might in any way imperil them; and as a ten-year lease on
top of one which had nine years to run might imperil them, the prayer of
the petition was refused. Archambault's Est., 29 Dist. 77.

498. ELECTIONS BY GUARDIANS OR TRUSTEES,
ELECTION TO TAKE REAL ESTATE IN LIEU
OF PROCEEDS.

SECTION 32. (a) Whenever, by the provisions of any last will
and testament admitted to probate in any county of this common-
weath, any of the real estate of the testator is ordered or directed
to be sold and the proceeds therefrom are bequeathed, or are pay-
able or distributable, in whole or in part, to any minor or minors,
or cestuis que trust, and it is the desire of all the legatees and
beneficiaries interested in said proceeds to elect to take said real
estate, in lieu of the several bequests or legacies or interests, it
shall be lawful for the orphans' court having jurisdiction of the
accounts of the executor of said will, upon the petition of any
fiduciary interested, to authorize and empower said fiduciary, on
behalf of his ward or cestui que trust, to enter into an election in
writing, to take said real estate or part thereof in fee, in lieu of
the legacy or legacies, interest or interests, bequeathed or payable
or distributable as aforesaid, taking and being entitled to an estate



384 FIDUCIARIES ACT SECTION 32 (a), (&)

in said real estate commensurate with the interest said minor or
cestui que trust would have had in the fund derived from the sale
of said real estate, if the same had been sold in accordance with
the provisions of said will. Such election shall be duly acknowl-
edged and recorded in the deed book in the office of the recorder
of deeds for the county in which such real estate is situated, 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 ward or cestui que trust, the charges for recording to be
the same as are provided by law for similar services, and shall
then be filed in the office of the clerk of said orphans' court.

NOTE. This is Section i of the Act of July 22, 1913, P. L. 908, 5 Purd.
5888, extended to cover all cases of cestuis que trust, as well as minors,
and altered by transposing the language for the sake of clearness, and
by making some verbal changes not affecting the substance.

Testator by his will directed a conversion of his land without limit of
time within which the conversion should be effected. At the time when
the actual conversion of the estate was to occur, certain persons named in
the will were to take the interests therein set forth, some of whom were
to have absolute estates, and one an estate in trust, and, until conversion
all of the cestuis que trustent were to receive the income from the corpus
absolutely, except one son, to whom a share of the income was given in
part, and in part to a trust created for him for the support, maintenance
and education of his family. A petition was filed by the trustee for this
interest, praying for an order of court authorizing and empowering it to
join with those who were sui juris in an election to take the decedent's
estate as land by virtue of Section 32 (a) of the Fiduciaries Act of 1917
was granted. Bennett's Est., 67 P. L. J. 363, 20 Lack. 142.

499. ELECTION TO TAKE MONEY INSTEAD OF
REAL ESTATE IN WHICH IT IS DIRECTED
TO BE INVESTED.

(b) Whenever, by the provisions of any last will and testament
admitted to probate in any county of this commonwealth, money
is directed to be laid out or invested in real estate, for the use of
any minor or minors, or cestuis que trust, and it is the desire of
all the beneficiaries interested to elect to take said money instead
of the real estate, it shall be lawful for the orphans' court having
jurisdiction of the accounts of the executor of said will, upon
petition of any guardian or trustee interested, to authorize and
empower said guardian or trustee, on behalf of his ward or cestui
que trust, to enter into an election in writing, which shall be filed
in the office of the clerk of said court, to take said money in lieu



FIDUCIARIES ACT SECTIONS 32 (&), (c)-33 (<) 385

of the real estate, taking and being entitled to an interest in said
money commensurate with the estate said minor or cestuis que
trust would have had in the real estate if the same had been pur-
chased in accordance with the provisions of said will.

NOTE. This is a new clause, introduced to cover the converse of the
case provided for in clause (a).

500. VALIDATION OF PREVIOUS ELECTIONS.

(c) All elections to take real estate in lieu of legacies or in-
terests, or money instead of real estate, heretofore made by any
guardian or trustee pursuant to an order of any orphans' court in
this commonwealth, are hereby ratified, confirmed and validated.

NOTE. This is Section 2 of the Act of July 22, 1913, P. L. 908, 5 Purd.
5888, with some verbal changes and the addition of words to cover
clause (6).

501. PROCEDURE WHERE REAL ESTATE IS DE-

VISED AT AN APPRAISEMENT TO BE MADE
OR TO EXECUTOR AT A VALUATION,
JURISDICTION ; PETITION.

SECTION 33. (a) Whenever, in any last will and testament, the
testator has directed or shall direct all or any part of his real
estate to be appraised and sold, or has devised or shall devise
such real estate to any person or persons at an appraisement to
be made, or has given or shall give to any person or persons the
right to take such real estate at an appraisement directed by the
testator to be made but has not indicated or shall not indicate by
whom such appraisement shall be made, it shall be lawful for any
of the parties interested in such real estate or in the sum to be
paid therefor to apply, by petition, to the orphans' court of the
county in which said real estate is situated, or, in case the real
estate is divided by a county line, in 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, setting forth the terms and
character of such devise or direction of the testator, and also the
names and residences, when known, of all parties interested.

NOTE. This is Section i of the Act of April 17, 1869, P. L. 72, i Purd.
1124, altered in phraseology and by providing that the petition may be by
persons interested in the sum to be paid for the real estate.
25



386 FIDUCIARIES ACT SECTION 33 (&), (O, (<0

502. APPOINTMENT OF APPRAISERS NOTICE.

(b) Upon the presentation of such petition, said court shall
appoint two or more disinterested and competent persons, citi-
zens of the county, to make such appraisement, unless the testator
has designated the number of persons to make such appraise-
ment, in which case, the court shall appoint the number of per-
sons so designated; and the court shall, by general rule or by
special order in the particular case, provide for notice to be given
to all parties interested of the time and place of making such
appraisement.

NOTE. This is Section 2 of the Act of April 17, 1869, P. L. 72, i Purd.
1124, omitting the provision for the award of an inquest directed to the
sheriff, and the provision at the end that the notice shall be given in the
same manner as notice is required to be given in partition proceedings,
and substituting "competent" for "judicious" in line 2.

503. OATH AND COMPENSATION OF APPRAISERS.

(c) The appraisers so appointed shall be sworn or affirmed,
well and truly and without prejudice or partiality, to value and
appraise such real estate; and each of such appraisers shall
receive, as compensation for his services, such amount as may be
allowed by said court, such compensation to be paid out of the
estate of the decedent, as part of the costs of administration.

NOTE. This takes the place of Section 5 of the Act of 1869, i Purd.
1124, which provides that the appraisers "shall be duly qualified by the
sheriff well and truly," etc., and of Section 6 which provides that the
sheriff and appraisers shall receive the same fees as are allowed in cases
of partition in the orphans' court.

504. RETURN AND CONFIRMATION OF APPRAISE-

MENT; APPEALS.

(rf) The appraisement so made shall be returned to the said
orphans' court and, if confirmed by said court, shall be con-
clusive on all the parties interested in said real estate, unless an
appeal be taken from such decree of confirmation to the proper
appellate court within six months after the date thereof.

NOTE. This is Section 3 of the Act of April 17, 1869, P. L. 72, I Purd.
1124, the period for appeal having been changed from three months to
six, the usual period. The phraseology has also been modified so as to
make it clear that a decree of confirmation is to be entered.



FIDUCIARIES ACT SECTION 33 (*) 387

505. CITATION TO ACCEPT OR REFUSE; DECREE
ADJUDGING REAL ESTATE TO DEVISEE OR
TO OTHER PERSONS; RECORDING AND
REGISTRY OF DECREE.

(e) Upon the return and confirmation of such appraisement,
the court shall issue its citation to the person or persons entitled
to take such real estate on compliance with the terms of the will,
to appear at a time fixed by said court to accept or refuse the
same. If, upon the return of such citation, duly served, such
person or persons shall appear and accept such real estate at the
appraisement, and shall pay or secure the payment of the amount
thereof at such time and upon such terms as shall be fixed by
said court, then the court shall adjudge such real estate to such
person or persons. If such person or persons shall fail or neglect
to appear and accept such real estate at the appraisement or shall
refuse to accept it, or, having accepted, shall fail to pay or secure



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 41 of 71)