Raymond Moore Remick.

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

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the amount of such appraisement as aforesaid, then the court
shall adjudge such real estate to the person or persons entitled
thereto under the provisions of the will in the event of such real
estate not being taken at the appraisement directed by the testator,
or, if the will contains no provision for such event, then the
court shall adjudge such real estate to the persons legally entitled
thereto. Any such decree may be recorded in the deed book in
the office for recording deeds of any county in which such real
estate is situated, with the same effect as deeds are recorded, and
shall be indexed by the recorder in the grantors' index under the
name of the decedent, and in the grantee's index under the
name or names of the person or persons accepting such real estate
at the appraisement, or of the person or persons entitled thereto
in the event of such real estate not being taken at the appraise-
ment, or of the person or persons legally entitled thereto where
the will contains no provision for a failure to take at the appraise-
ment, as the case may be, and shall be registered in the survey
bureau, or with the proper authorities empowered by law to keep
a register of real estate, if any there be, in said county, and the
charges for recording and registering shall be the same as are
provided by law for similar services.

NOTE. This is Section 4 of the Act of April 17, 1869, P. L. 72, i Purd.
1124, modified so as to provide for a citation and to cover the cases of
refusal to accept, of failure to pay after accepting, and of failure of the
will to provide for a case of failure to take at the appraisement. The
provision for recording and registering is new.



388 FIDUCIARIES ACT SECTION 33 (/)

506. WHERE REAL ESTATE IS DEVISED TO
EXECUTOR AT A VALUATION.

(/) In all cases of wills, heretofore or hereafter made and
duly proved and recorded, wherein the testator has given or shall
give the right to one or more persons to take any or all of his
real estate at a certain valuation therein named, and has appointed
or shall appoint such person or persons as executor or executors,
to whom letters testamentary are issued, such person or persons
may present his or their petition to the orphans' court of the
county in which such real estate is situated, or, in a case where
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, that he or they
have been appointed executor or executors of the will, that
letters testamentary have been issued to him or them, and
formally accepting such real estate at such valuation. Upon the
presentation of such petition, the court shall have power to
adjudge the real estate to such person or persons, and to decree
that he or they shall account for the valuation thereof in the
settlement of his or their accounts in the orphans' court having
jurisdiction of such accounts.

NOTE. This is Section i of the Act of March 5, 1903, P. L. 10, i Purd.
1124, with some changes in phraseology for the purpose of condensation.
In the next to the last line, "in the orphans' court" has been substituted for
"with the register of wills."

Where a testator devises his real estate at a fixed valuation the real
estate is converted and the estate distributable as personalty.

In such case a decree under the Fiduciaries Act of June 7, 1917, Section
33 (/) P- L. 502, adjudging the real estate to the devisee and executor on
his petition does not change the situation but is simply confirmatory of what
the will has accomplished and amplifies the evidence of title.

A voluntary payment of the debts of a decedent out of the proceeds of
real estate on which they had lost their lien, when approved by all parties,
is commendable and a subsequent reaction against such payment should
not be favored.

"The devise is somewhat analogous to an executory contract for the sale
of real estate entered into by a testator which is executed after his death
by a decree of specific performance; and that such property descends as
personalty will not be disputed. No transformation happened because
the devisee chose after the expiration of a year from the death of the
testator to have entered a decree as permitted by the Fiduciaries Act of
1917, P. L. 447, Section 33 (/), which authorizes the orphans' court to ad-



FIDUCIARIES ACT SECTIONS 33 (/), (0)-34 (<*) 389

judge real estate to persons to whom the right to take the same at a certain
valuation has been given in a will, and who are appoinced executors of
the same will. By virtue of this enactment a devisee for a consideration
who is also the executor may petition the court to adjudge the real estate
to him which had been devised to him and about which there is no ques-
tion or uncertainty as to its title, and may also petition the court to have
a decree entered against himself ordering himself to account "for the
valuation thereof" from which he could not escape had there been no
such decree. The act is simply confirmatory and amplifies the evidence
of title. It only supplements its publication. The will is the essential
demonstration, and by it was the title vested in the devisee at the death
of the testator." Per SMITH, P. J., in Ruch's Est, 37 Lane. 69.

507. VALIDATION OF PREVIOUS DECREES.

(g) Whenever any orphans' court shall have heretofore made
a decree adjudging real estate to certain persons, in any case men-
tioned and provided for in clauses (0) and (/) of this section,
such decree shall be valid and available to vest in the person or
persons to whom such real estate was adjudged, all the right,
title and interest of the testator who had died, leaving a will
wherein the right to accept such real estate was given.

NOTE. This is Section 2 of the Act of March 5, 1903, P. L. 10, i Purd.
1125.

508. DESIGNATION OF CURTILAGE OR BUILDING

DEVISED, JURISDICTION, PETITION.

SECTION 34. (a) Whenever, by any last will and testament, any
dwelling-house or other building is devised to any person or per-
sons, without defining the boundaries of the curtilage or lot ap-
purtenant to such building and necessary for the use and enjoy-
ment of the same, it shall be lawful for any of the parties in-
terested to apply by petition to the orphans' court of the county
in which such building is situate, for the appointment of commis-
sioners to designate the boundaries of the curtilage or lot appurte-
nant to such building, and necessary for the convenient use of the
same, for the! purposes for which it was intended.

NOTE. This is Section i of the Act of April 14, 1868, P. L. 97, 3 Purd.
3389, revised by omitting unnecessary verbiage, and by omitting after
"last will and testament" the following words : "or by reservation or limita-
tion in any deed or deeds of conveyance, or by reservation in any partition
between tenants in common or co-parceners," and after "devised," the
words "bequeathed, reserved or limited." The word "bequeathed" is in-
appropriate ; and it is difficult to see why the orphans' court should have
jurisdiction in cases arising under deeds or amicable partitions, which
have nothing to do with decedents' estates.



390 FIDUCIARIES ACT SECTION 34 (a), (6), (c)

In the seventh line, the words "by petition" have been substituted for
"in writing."

509. APPOINTMENT AND COMPENSATION OF COM-

MISSIONERS.

(b) It shall be the duty of the said court, on presentation of
such petition, to appoint two or more disinterested and com-
petent persons, as they shall think proper, for the purposes afore-
said, which persons shall be sworn or affirmed faithfully to perform
their duties as commissioners, and shall be respectively entitled
to receive from the estate of the testator, for their services as
commissioners, such sum as the said court shall deem proper.

NOTE. This is Section 2 of the Act of April 14, 1868, P. L. 97, 3 Purd.
3390, changed so as to provide for two or more commissioners instead of
three, to require that they be "disinterested and competent" instead of
"competent and skilful," to require them to be sworn or affirmed, and to
leave the amount of their compensation to the judgment of the court,
instead of fixing it at one dollar per day.

510. NOTICE OF PROCEEDINGS OF COMMISSION-

ERS; REPORT, CONFIRMATION; RECORD-
ING AND REGISTRY OF DECREE; TITLE OF
DEVISEE.

(c) It shall be the duty of the commissioners so appointed to
give reasonable notice to all parties interested of the time at which
they will examine said dwelling-house or other building for the
purposes aforesaid, and to make report to the court in pursuance
of the order to them directed. In such report, they shall suf-
ficiently designate and describe, by metes and bounds, with their
courses and distances, and by draft, if necessary, the limits and
extent of ground necessary for the convenient use of such build-
ing, for the purposes for which it was intended. If such report
shall be approved by the court, a decree of confirmation shall be
entered, a certified copy whereof shall be recorded in the deed
book in the office for recording deeds of the county in which said
building is situate, in like manner as deeds are recorded, and with
the same effect, 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 devisee of such dwelling-
house or other building, and shall be registered in the survey
bureau, or with the proper authorities empowered by law to keep
a register of real estate, if any there be, in such county, upon pay-



FIDUCIARIES ACT SECTIONS 34 (c), (d)-35 (<*) 391

ment of fees for such recording and registration at the rates fixed
by law for similar services ; and the devisee of such building shall
take the same estate in the ground thus set apart as is devised to
him in the building.

NOTE. This is Section 3 of the Act of April 14, 1868, P. L. 97, 3 Purd.
3390, with some changes in phraseology, the omission, at the end, of the
words "reserved or limited," the insertion of the provisions for entry of a
decree of confirmation and for recording and registry, and a change in
the last clause, which in the Act of 1868, reads that the ground "shall be
exclusive property of the occupant of such dwelling house or other build-
ing during the full term for which it was devised."

511. PAYMENT OF COSTS.

(d) All costs of proceedings under this section, including the
fees for recording and registration, shall be paid out of the estate
of the testator and shall be considered as part of the costs of
administration of the estate.

NOTE. This is substituted for Section 4 of the Act of April 14, 1868,
P. L. 97, 3 Purd. 3390, which reads: "The costs of these proceedings shall
be equally divided between all parties interested." That section is un-
satisfactory since "all parties interested" is indefinite and "equally" is
ambiguous.

512. ABATEMENT AND SURVIVAL OF ACTIONS;

SUBSTITUTION OF EXECUTORS AND AD-
MINISTRATORS; PLEADINGS AS TO AS-
SETS, PERSONAL ACTIONS, EXCEPT FOR
SLANDER AND LIBEL NOT TO ABATE.

SECTION 35. (a) No presonal action hereafter brought, except
actions for slander and for libels, and no action for mesne profits
or for trespass to real property, shall abate by reason of the
death of the plaintiff or the defendant, or by reason of the death
of one or more joint plaintiffs, or defendants* but the executor or
administrator of the deceased party may be substituted as plaintiff
or as defendant, as the case may be, and the suit prosecuted to
final judgment and satisfaction.

NOTE. This and the following clause are intended to cover the whole
subject of abatement and survival of personal actions, and to include the
subject matter of Section 28 of the Act of 1834, I Purd. mi; Section 18
of the Act of April 15, 1851, P. L. 674, I Purd. 1115; the Act of April 12,
1869, P. L. 27, I Purd. 228, relating to actions for mesne profits and for
trespass to real or personal property; and Section i of the Act of June
24, 1895, P. I,. 236, 4 Purd. 4824.



392 FIDUCIARIES ACT SECTION 35 (a), (&)

Section 28 of the Act of 1834 provides that executors or administrators
may "commence and prosecute all personal actions which the decedent
whom they represent might have commenced and prosecuted, except
actions for slander, for libels, and for wrongs done to the person ;
and they shall be liable to be sued in any action, except as aforesaid, which
might have been maintained against such decedent if he had lived."

Section 18 of the Act of 1851 provides that no action "to recover 'dam-
ages to the person by negligence or default, shall abate by reason of the
death of the plaintiff; but the personal representatives of the deceased may
be substituted as plaintiff, and prosecute the suit to final judgment and
satisfaction."

Section I of the Act of 1895 provides that any right of action "by
reason of injury wrongfully done to the person of another shall survive
the death of the wrongdoer, and may be enforced against his executor or
administrator either by continuing against such personal representative
a suit which may have been brought against the wrongdoer himself in
his lifetime, or by bringing an original suit against his representative after
his death."

The Acts^ of 1851 and 1895 were intended to amend the Act of 1834 so
as to eliminate the words "for wrongs done to the person." There has
been some doubt as to whether the Act of 1895 refers only to cases of
physical injury or includes such wrongs as malicious prosecution. It
seems better to restate the provisions of the law so as to make them
entirely clear.

1 Portion in italics added by amendment of March 30, 1921 (P. L. 55).

513. EXECUTORS AND ADMINISTRATORS MAY SUE
AND BE SUED IN PERSONAL ACTIONS, EX-
CEPT FOR SLANDER AND LIBEL.

(&) Executors or administrators shall have power either alone
or jointly with other plaintiffs* to commence and prosecute all
actions for mesne profits or for trepass to real property, and all
personal actions which the decedent whom they represent might
have commenced and prosecuted, except actions for slander and
for libels ; and they shall be liable to be sued either alone or jointly
with other defendants in any such action, except as aforesaid,
which might have been maintained against such decedent if he had
lived.

NOTE. This is Section 28 of the Act of 1834, i Purd. mi (Section 29
of the Commissioners' Draft), inserting the provision as to actions for
mesne profits and for trespass to real property, and omitting, after "libels,"
the words "and for wrongs done to the person." These words were
eliminated by the Acts of 1851 and 1895, set forth in the last preceding
note.

Section 28 of the Act of 1834 was new, and was intended to "place the
law respecting the right of executors and administrators to commence and



FIDUCIARIES ACT SECTION 35 (6), (c), (<J) 393

prosecute personal actions upon a certain and equitable basis." The
Commissioners of 1830 further remarked that the cases of slander, libel
and wrongs done to the person had "always been excepted here and in
England, because being derived mainly from personal considerations, it has
been supposed to be against the policy of the law to encourage their trans-
mission to or against the representatives of the deceased party. We are
disposed to stop with these exceptions, however, and to place all other
actions upon the same footing with respect to the right and also form of
action, after the death oi the party as before."

1 Portion in italics added by Amendment of March 30, 1921 (P. L. 55).

514. PENDING ACTIONS OF EJECTMENT TO EN-

FORCE PAYMENT OF PURCHASE MONEY.

(c) In all actions of ejectment which may be pending at the
time of the death of any vendor of real estate, when the object is to
enforcq the payment of purchase money due and owing upon an
agreement of sale of such real estate, it shall and may be lawful
for the executors and administrators of the deceased vendor to
sustain the same in their own names, to the same extent and in
like| manner as their testator or intestate, if living, could do.

NOTE. This is Section 5 of the Act of April 9, 1849, P. L. 526, I Purd.
1115, modified so as to relate only to actions of ejectment pending at the
death of the vendor. If no action has been brought in his lifetime, the
remedy in the orphans' court is made exclusive by Section 18 (fc) of the
present draft (See 460 supra.)

515. EXECUTORS OR ADMINISTRATORS MAY SUE

OR DISTRAIN FOR ARREARAGES OF RENT-
CHARGE; OR OTHER RENT OR RESERVA-
TION, DUE TO DECEDENT.

(d) The executors or administrators of every person who was
the proprietor of any rent-charge or other rent or reservation in
nature of a rent, in fee or otherwise, as mentioned in Section n,
clause (/) , of this act, 1 shall and may have an action for the ar-
rearages of such rent due to the decedent, at the time of his
decease, against the person who ought to have paid such rent, or
his executors or administrators; or they may distrain therefor
upon the lands or tenements which were charged with the pay-
ment thereof, and liable to the distress of such decedent, so long
as such lands or tenements remain and are in the seisin or posses-
sion of the tenant who ought to have paid such rent, or in the
possession of any other person claiming the same, from or under
the same tenant, by purchase, gift or descent, in like manner as
such decedent might have done if he had lived.



394 FIDUCIARIES ACT SECTION 35 (<0, ('), (/)

NOTE. This is Section 29 of the Act of 1834, i Purd. mi (Section 30
of the Commissioners' Draft), which was founded on Section I, Chapter 37
of the statute 32 Henry VIII.

The words "of debt" have been omitted after "action" in the fifth line.

l Scc 397, supra.

516. EXECUTORS OR ADMINISTRATORS OF LIFE

TENANT MAY SUE FOR PROPORTION OF
RENT DUE UP TO DATE OF DEATH.
(?) The executors or administrators of any tenant for life,
who shall die before or on a day on which any rent was reserved
or made payable upon any demise or lease of any real estate,
which determined on the death of such tenant for life, may have
an action to recover from the lessee or under-tenant of such
real estate, if such tenant for life die on the day on which the
same was made payable, the whole, or, if before the day, a pro-
portion of such rent for the last year, or quarter of a year, or
other current period of payment, according to the time elapsed at
the decease of such tenant for life as aforesaid.

NOTE. This is Section 30 of the Act of 1834, i Purd. mi (Section
31 of the Commissioners' Draft), which was derived from the statute n
George II, Chapter 19, Section 15.

The words "on the case" have been omitted after "action" in the fifth
line.

517. EXECUTORS OR ADMINISTRATORS MAY BE

SUBSTITUTED IN PENDING ACTIONS AND
MAY ISSUE EXECUTION ON JUDGMENT IN
FAVOR OF DECEDENT.

(/) The executors or administrators of any person who, at
the time of his decease, was a party, plaintiff, petitioner, defendant
or respondent, in any action or legal or equitable proceeding pend-
ing in any court of this commonwealth, shall have full power,
if the cause of action shall by law survive to or against them, to
become party thereto and prosecute or defend such suit or pro-
ceeding to final judgment or decree, as fully as such decedent
might have done if he had lived ; and if such party die after judg-
ment, certificate, or decree in his favor, his executors or ad-
ministrators may proceed to execution thereupon, as such party
might have done if he had lived. This clause shall apply whether
the decedent is a sole or joint plaintiff, petitioner, defendant or
respondent. 1



FIDUCIARIES ACT SECTION 35 (/), (g) 395

NOTE. This is Section 26 of the Act of February 24, 1834, i Purd. mo
(Section 27 of the Commissioners' Draft), derived, as to the first part, from
the Act of April 13, 1791, 3 Sm. L,. 28, and, as' to the last clause, intended
to sanction expressly the existing practice of substituting the executor or
administrator of the plaintiff in a judgment without sci. fa. See Romer's
Admr. v. Sterling, 10 S. & R. 119.

The Commissioners remarked that they had placed decrees of the
orphans' court on the same footing with judgments. It has been held that
the section applies to proceedings in equity as well as at law : Carroll v.
Tufts, 9 D. R. 144. The words "or equitable" have now been inserted.

Under this section, it was held that all personal actions survived, except
actions for slander, libel or wrongs done to the person : Miller v. Wilson,
24 Pa. 114. Actions for wrongs to the person are covered by clause (&) of
this section of the draft.

The last clause is now changed so as to include cases of judgments for
costs, and certificates, in favor of a defendant.

1 Portion in italics added by amendment of March 30, 1921 (P. L. 55).

518. SCIRE FACIAS TO BRING IN EXECUTORS OR
ADMINISTRATORS OF DECEASED PARTY;
CONTINUANCE.

(g) The court in which any action or legal or equitable pro-
ceeding may be pending at the time of the decease of a party,
plaintiff, petitioner, defendant or respondent, shall have power
to require, by writ of scire facias, the executors or administrators
of such party, within twenty days after the service thereof, to
become party to such action or proceeding, or to show cause why
they should not be made party thereto, by judgment of the court,
and further proceedings be had in such action or proceeding ; but
in every such case, the executors or administrators, who shall
become party as aforesaid, shall be entitled to a reasonable con-
tinuance of such action or proceeding, according to the circum-
stances of the case. This clause shall apply whether the decedent
is a sole or joint plaintiff, petitioner, defendant or respondent. 1

NOTE. This is Section 27 of the Act ofi 1834, i Purd. mi (Section 28
of the Commissioners' Draft), which was derived from the Act of April
T 3, I79 1 , 3 Sm. L. 28, Section 8, now altered by inserting the words "or
equitable" in the first line, substituting after the word "pending" in the
second line, instead of the words "as aforesaid" the words "at the time of
the decease of a party, plaintiff, petitioner, defendant or respondent;" and
by providing for "a reasonable continuance" instead of a continuance
"during one term." The words "at the next succeeding term" have been
omitted after "to show cause."

1 Portion in italics added by amendment of March 30, 1921 (P. L. 55)



396 FIDUCIARIES ACT SECTION 3$ (*), ()

519. SERVICE OF SCIRE FACIAS WHEN EXECU-

TORS OR ADMINISTRATORS RESIDE WITH-
OUT THE COUNTY.

(h) Whenever the executor or administrator of a deceased
plaintiff, petitioner, defendant, or respondent, in any action or legal
or equitable proceeding pending in any court of this common-
wealth, resides without the jurisdiction of the said court, the writ
of scire facias provided by the preceding clauses of this section
may be served on such executor or administrator "by the sheriff
of the county where he is resident, if in the opinion of the proper
court such service may be reasonably practicable; but if other-
wise, and also where the said executor or administrator resides in
some other state of the United States, such sen-ice may be made
by publication, in one or more public newspapers, as, in the
opinion of the court, will be most likely to give notice to the
said executors or administrators; the said manner of service
herein provided to have the same force and effect as the manner
of service provided by the said clauses.

NOTE. This is Section i of the Act of April 6, 1859, P. L. 384, I Purd.
1115. The words "petitioner," "respondent," and "legal or equi-
table" have been inserted in the second and third lines.

520. ACTIONS NOT TO ABATE BY DEATH, DISMIS-

SAL, REMOVAL, RESIGNATION OR RENUN-
CIATION OF FIDUCIARIES.

0) No action or other legal or equitable proceeding, com-
menced by or against fiduciaries, or in which fiduciaries are
parties, shall abate or be otherwise defeated, by reason of the
death, dismissal, removal, resignation or renunciation of any one
or more of them, nor by reason of the annulling or revoking of
the letters or powers granted to them, or any of them; but such
suit or proceeding may be prosecuted to final judgment or decree,
by or against such other person or persons as may have been
joined with them in the administration or trust, or by or against



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 42 of 71)