Raymond Moore Remick.

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

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be filed, shall transmit the same to the orphans' court of the
respective county, at its next stated meeting, being not less than
thirty days distant from the time of such filing, of all which he



FIDUCIARIES ACT SECTION 46 (d) 415

shall give notice to all persons concerned, in the following manner,
viz : by an advertisement enumerating all the accounts to be pre-
sented at any one time to the said court, in at least two secular
newspapers, if there be two, published in the respective county,
or if there be but one newspaper published in such county, then
in that one, or if there be none, then in one printed nearest to the
said county, at least once a week during the four weeks im-
mediately preceding the meeting of the court at which such ac-
count shall be presented, setting forth, in substance, that the ac-
countants, naming them and the character in which they respec-
tively act, have filed their accounts in the office of the said
register, and that the same will be presented to the orphans'
court for confirmation, at a certain time and place, mentioning
the same; and also by setting up conspicuously in his office, and
in at least six other of the most public places in the county, at
least four weeks before the time appointed for the presentation
of such accounts as aforesaid, fairly written or printed copies
of such advertisement. The actual expenses of such advertise-
ment, according to the usual rates of advertising in such news-
papers, and the setting up of such notices, shall be divided among
all the accounts' presented at the same court, and the proper por-
tion only shall be charged in any of the said accounts, and
allowed to the register as the cost of such advertisement and
notices.

NOTE. This is Section 30 of the Act of March 15, 1832, I Purd. 1125
(Section 37 of the Commissioners' Draft, except that the provision as to
counties where no newspaper is published was added in the Act of 1832).
It was derived with slight alterations from the Acts of April 4, 1707, Sec-
tion 9, 3 Sm. L. 296, and April, i, 1823, Section i, P. L. 286. The insertion
of the word "secular" in line 8 covers the provision of the Act of April
15, 1867, P. L. 86, i Purd. 1125, note (o).

Section 29 of the Act of March 15, 1832, P. L. 143, i Purd. 1125, pro-
viding that the register, "before he shall allow the accounts of any executor
or administrator, shall carefully examine the same, and require the pro-
duction of the necessary vouchers, or other satisfactory evidence of the
several items contained in it," is recommended for repeal, the practice
prescribed having fallen into disuse.

Notice to creditors by advertisement of account is futile if the account
is prematurely filed. Hayden's Est., 28 Dist. 39.



416 FIDUCIARIES ACT SECTION 46(0), (/)

543. ORPHANS' COURT MAY REQUIRE ADDITION-

AL NOTICE WHERE PARTIES IN INTEREST
RESIDE OUT OF THE STATE, OR WHERE
OTHER CIRCUMSTANCES RENDER FUR-
THER NOTICE EXPEDIENT.

(e) When any of the heirs, legatees, distributees or creditors
of a decedent reside out of this state, or out of the United
States, or from other circumstances it may be expedient that ad-
ditional or further notice should be given of the settlement of
the account of a fiduciary, or of the disposition of the assets
or surplusage of the estate, it shall be in the discretion of the
orphans' court to require such further or additional notice to
be given by such accountant, as they may think proper, to ap-
pear in court, or before the auditor or auditors by them ap-
pointed as the case may be, at such times as shall be fixed for
the examination of such account, or for the distribution of the
assets or the surplusage of the estate.

NOTE. This is Section 20 of the Act of March 29, 1832, I Purd. 1127
(Section 21 of the Commissioners' Draft), which was new in the Act of
1832. The only change now made is to substitute "fiduciary" for "executor,
administrator, guardian or trustee," and to insert "auditor or" before
"auditors."

544. ACCOUNTS NOT TO BE CONFIRMED UNLESS

IT APPEARS THAT NOTICE HAS BEEN
GIVEN.

(/) No account of an executor, administrator or guardian
shall be confirmed and allowed by the orphans' court, unless it
shall appear, at the presentation of such account, that notice of
such presentation has been given, conformably to the directions
of this act.

NOTE. This is Section 15 of the Act of March 29, 1832, P. L. 193, I Purd.
1125 (Section 16 of the Commissioners' Draft), which was new in the Act
of 1832, although apparently in conformity 1 with the then existing practice.

The only changes now made are to omit the reference at the end of the
section to "An act relating to registers and registers' courts," (the provisions
of that act being now incorporated in the present act), and to omit, after
"orphans' court" in the third line, the words "except in the cases herein
especially provided for."



FIDUCIARIES ACT SECTION 46 (g) 417

545. WHERE TRUSTEES' ACCOUNTS SHALL BE
FILED; EXCLUSIVE JURISDICTION OF OR-
PHANS' COURT.

(^r) All trustees who are subject to the jurisdiction of the
orphans' court shall file their accounts in the court appointing
them or, in the case of testamentary trustees, in the orphans'
court of the county where the will is or shall be probated. The
orphans' court shall have exclusive jurisdiction of the accounts
of all trustees appointed by such court, and of all testamentary
trustees, whether such trusts are vested in executors or ad-
ministrators virtute ofricii or in trustees named in the will, saving,
however, the jurisdiction of the courts of common pleas under
existing laws in cases of trustees who have filed their accounts
in such courts before the approval of this act, and cases of
substituted testamentary trustees appointed by any court of
common pleas before the approval of this act.

NOTE. The first part of this clause is derived from Section i of the Act
of May 3, 1909, P. L. 3Qi, 6 Purd. 6565, altered so as to apply only to
trustees who are within the scope of the present act, and to provide in what
courts the accounts shall be filed. The remainder of the clause is new and
is intended to take away the concurrent jurisdiction of courts of common
pleas in cases of testamentary trusts in persons named in the will. This
jurisdiction as to trusts nominatim was conferred by Section 15 of the Act
of June 14, 1836, P. L. 632, 4 Purd. 4880, upon the court of common pleas
of the county where the trustee resided at the commencement of the trust,
and was held to be concurrent in Brown's Appeal, 12 Pa. 333, although as
to trusts virtute officii the jurisdiction of the orphans' court is exclusive:
Innes's Estate, 4 Whart. 179; Baird's Case, I W. & S. 288. In Anderson
v. Henzey, 7 W. N. C. 39, it was remarked that the safest course was to
invoke the aid of the orphans' court in all cases of testamentary trusts. The
jurisdiction of the common pleas has been rarely exercised in recent years,
and the late decision of the supreme court in Simpson's Estate, 253 Pa.
217, reversing 23 Dist. Rep. 750, brought the matter to the attention of the
Commissioners, who are of opinion that there is now no good reason why
the jurisdiction of the orphans' court should not be made exclusive as to
both classes of testamentary trusts.

"This part of the act was passed apparently to do away with the fine
distinction that had been made by the courts in holding that if the trust
was given to the executors as such, then the orphans' court has jurisdic-
tion, but if given to individuals nominatim although they were later in
the will named as executors, the jurisdiction was in the court of common
pleas sitting in equity." Opinion of WOODWARD, J., in dismissing a bill
in equity for a decree involving the construction of a testamentary trust
and distribution thereunder. Engle v. Engle, 21 Luz. 277.
27



4 i8 FIDUCIARIES ACT SECTION 46 (f), (A)

The Fiduciaries Act of June 7, 1917, 46 (y), P. L. 447, abolished the
concurrent jurisdiction formerly exercised by the court of common
pleas and the orphans' court over the accounts of testamentary trustees
appointed nominatim by the will, and vested such jurisdiction exclusively
in the orphans' court of the county where the will is probated. Girard's
Est., 48 Pa. C. C. 608, 29 Dist. 62.

Under section 46 (g) of the Fiduciaries Act of June 7, 1917, P. L. 447,
which provides that all trustees subject to the jurisdiction of the orphans'
court shall file their accounts in that court, and (/i) that they may file
their accounts triennially from their appointment, any party in interest
may compel the filing of a triennial account.

The jurisdiction of the court to compel the filing of an account by a
trustee after the expiration of fourteen years is not ousted by the render-
ing of semi-annual statements by the trustee to the cestui que trust, nor
by the advice of counsel for the trustee that, in view of the semi-
annual accounts and the acceptance by the parties of checks for the
amounts thereby shown to be due them, and tender of vouchers for all
payments, no account should be required to be filed. Noble's Est., 27
Dist. 336, 35 Lane. 369, 66 P. L. J. 414, 19 Lack. 341.

546. TRIENNIAL ACCOUNTS OF TRUSTEES.

(h) All trustees who are subject to the jurisdiction of the
orphans' court may hereafter, triennially, from the date of their
appointment, file their accounts in said court, which accounts
shall be duly audited, and confirmed absolutely to that date.
This clause shall apply to and permit all such trustees, who
have been acting in such capacity for more than three years
before the passage of this act, to file their accounts, which shall
be audited and confirmed absolutely to the date of such filing, and,
in like manner, to file their accounts triennially thereafter.

NOTE. This is also derived from Section i of the Act of May 3, 1909,
P. L. 391, 6 Purd. 6565. The law prior to the Act of 1009 did not expressly
permit trustees to file triennial accounts, and it is considered best to
authorize in terms the practice that has been followed in many parts of
the State. The Act of 1009 applies to "all trustees of estates and all
committees of the estates of lunatics and habitual drunkards," and it has
been thought that it was intended to include only trustees of the estates of
lunatics and habitual drunkards.

Under section 46 (g) of the Fiduciaries Act of June 7, 1917, P. L. 447,
which provides that all trustees subject to the jurisdiction of the orphans'
court shall file their accounts in that court, and (/i) that they may file
their accounts triennially from their appointment, any party in interest
may compel the filing of a triennial account.

The jurisdiction of the court to compel the filing of an account by a
trustee after the expiration of fourteen years is not ousted by the rendering



FIDUCIARIES ACT SECTIONS 46 W, ()-47 () 419

of semi-annual statements by the trustee to the cestui que trust, nor by
the advice of counsel for the trustee that, in view of the semi-annual
accounts and the acceptance by the parties of checks for the amounts
thereby shown to be due them, and tender of vouchers for all payments, no
account should be required to be filed. Noble's Est, 27 Dist. 336, 35
Lane. 369, 66 P. L. J. 414, 19 Lack. 341.

547. NOTICE OF FILING TRUSTEES' ACCOUNTS.

() Due notice of the filing of any account of a trustee in
the orphans' court of any county shall be given by advertisement
as prescribed by rule of said court, and in such other manner
as the said court may, in each particular case, direct, to all per-
sons interested in the estate; and absolute confirmation of such
account shall not be entered unless all such persons interested
are legally competent and qualified, either personally or by their
guardians or committees, to appear in court and object to said
account if they so desire.

NOTE. This is founded on the second proviso to Section i of the Act
of May 3, 1909, P. L. 391, 6 Purd. 6565, broadened so as to apply to all
accounts of trustees and not merely triennial accounts, and modified so as to
provide for notice by advertisement and such other notice, if any, as the
court may direct, instead of "due and actual notice."

548. AUDITS, RULES OF COURT AS TO PUBLI-

CATION OF NOTICE OF AUDITS.

SECTION 47. (a) The judges of the orphans' courts of this
commonwealth, respectively, shall have power, and are hereby
authorized, to establish, in their discretion, such rules and regula-
tions as they may deem proper for the publication of advertise-
ments of notices of the auditing of accounts of fiduciaries and
shall have supervision of and regulate the cost of such publication
in all such cases, as well by special order in particular cases, as
by general rules.

NOTE. This is Section i of the Act of March 18, 1875, P. L. 29, 3 Purd.
3370. In the first line, the word "separate" has been omitted. The section
also provides for publication of notices of sales of real estate under pro-
ceedings in said court, notices to parties in proceedings in partition, and
all other cases within their jurisdiction, and for the establishment of a
bill of costs for services of clerks. Those parts of the section are covered
in other places.

See Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266,
32 York 144.



420 FIDUCIARIES ACT SECTION 47 (&), (c)

549. AUDITS BY COURT IN COUNTIES HAVING SEP-

ARATE ORPHANS' COURT.

(&) In any county in which a separate orphans' court shall
be established, all accounts filed in the office of the register of
wills, or in the orphans' court by fiduciaries, shall be examined
and audited by the court, without expense to the parties, except
where all parties in interest in a pending proceeding shall nomi-
nate an auditor, whom the court may, in its discretion, appoint.

NOTE. This is the proviso to Section 6 of the Act of May 19, 1874,
P. L. 207, 3 Purd. 3369, which was passed in pursuance of Article V,
Section 22 of the Constitution of 1874. The words "by fiduciaries" have
been added in line 3, and "examined and" in line 4.

550. AUDITS BY COURT OR AUDITORS IN COUNT-

IES NOT HAVING SEPARATE ORPHANS'
COURT.

(c) In any county in which a separate orphans' court shall
not be established, all accounts filed in the office of the register
of wills or 1 in the orphans' court by fiduciaries shall be examined
by the court, and, if not excepted to, shall, after due consideration,
be confirmed. If any person interested in the estate shall except
to the account, or any of the parties shall desire to refer the ac-
count to an auditor, the court shall decide whether the matter
calls for such reference ; and if so, the court may appoint a suit-
able person as auditor. The auditor so appointed shall be sworn
or affirmed to perform his duties with fidelity, and shall have
power to administer oaths or affirmations to parties and witnesses
in the matter referred to him.

NOTE. This is Section i of the Act of April 14, 1835 P. L. 275, I Purd.
1126, altered by confining it to counties having no separate orphans' courts,
by providing for the appointment of one auditor only and by omitting the
proviso, which reads: "Provided, That the provisions of this section shall
not extend to the city and county of Philadelphia," and was extended to
Montgomery County by the act of February 18, 1869, P. L. 183. The
provision for appointment of auditors by the parties has also been omitted,
and some changes have been made in the phraseology.

The provisions of this clause supersede Section 16 of the Act of March
29, 1832, I Purd. 1126, which is therefore recommended for repeal.

The Commissioners recommend the repeal, so far as relates to the
orphans' court, of the Act of April i, 1909, P. L. 95, 6 Purd. 7296, as to
choice of auditors, etc.; by the parties (held unconstitutional in Hick's



FIDUCIARIES ACT SECTIONS 47 (c)-48 421

Estate, 19 Dist. Rep. 410) ; and the Act of June 4, 1879, P. L. 84, i Purd.
390, as to compensation of auditors.

See form 82.

551. REVIEW OF ACCOUNTS, ADJUDICATIONS AND
AUDITORS' REPORT.

SECTION 48. Within five years after the final decree, confirming
the original or supplementary account of any fiduciary, which has
been or may be hereafter passed, upon petition of review being
presented by such fiduciary or his legal representatives, or by
any person interested therein, alleging errors in such account, or in
any adjudication of the orphans' court or any report of an
auditor on such account, which errors shall be specifically set
forth in said petition of review, said petition and errors being
verified by oath or affirmation, the orphans' court shall grant a
rehearing of so much of said account, adjudication, or auditor's
report, as is alleged to be error in said petition of review, and
give such relief as equity and justice may require, by reference
to auditors, or otherwise, with like right of appeal to the proper
appellate court as in other cases : Provided, That this act shall not
extend to any cause when the balance found due shall have been
actually paid and discharged by any fiduciary.

NOTE. This is Section i of the Act of October 13, 1840, P. L. (1841) i,
i Purd. 1128, changed by substituting the words "proper appellate" for
"supreme," and by omitting "as aforesaid" after "hereafter passed."

The word "fiduciary" is substituted for "executor, administrator or
guardian," making the act include testamentary trustees. A provision is
inserted making the review include adjudications and auditors' reports.

See forms 83, 84.

Under Section 48 of the Act of June 7, 1917, P. L. 514, the orphans'
court may revise and correct a former adjudication where it appears that
such adjudication contained a mistake by the parties and the rights of
third parties have not intervened.

The orphans' court is not bound by the rules of practice which prevail
in a court of Chancery.

"The rule governing application for bills of review, laid down in our
decisions since the passage of the Act of October 13, 1840, P. L,. (1841)
i, Sec. i, giving the court authority to grant a review, now controlled by
the Act of June 7, 1917, P. L. 514, Sec. 48 has been re-asserted by Judge
GEST in Nixon's Estate, 239 Pa. 270, 273, which was affirmed on his
opinion wherein he said : 'It is well settled that a petition for a review of
an account settled and confirmed in the orphans' court must show either
an error of law apparent on the face of the record or else new matter



422 FIDUCIARIES ACT SECTION 48

which has arisen since the decree, or such review may be allowed ex
gratia upon the subsequent discovery of new evidences to the facts upon
which the decree was grounded which could not have been procured by
the use of due diligence.' " SCHAEFFER, P. J., in Beard's Est, 34 York 190.

Section 48 of the Fiduciaries Act of June 7, 1917, P. L. 477, 514, relating
to petitions of review, is an advance on Section I of the Act of October
13, 1840, (P. L. 1841, page i), treating of the same subject, in that the
former requires a review to be granted if error is made in the adjudication.

Where an error appears in an adjudication, and the balance found due has
not been actually paid and discharged, a rehearing is a matter of right,
unless, at the audit, the question at issue was raised, contested and decided
adversely to petitioner.

The orphans' court has inherent power to and should grant a review,
aside from the provisions of either act, where justice and equity require
it and no one will suffer by reason thereof. Troutman's EsL 270 Pa. 310.

The Act of October 13, 1840, P. L. (1841) page I, as amplified by the
48th Sec. of the Fiduciaries Act of 1917, P. L. 514 gives the orphans'
court jurisdiction to review and revise an account within five years after
confirmation upon petition of review being presented; and under this
jurisdiction and the general equity powers of the orphans' court a
matter being duly before the court an order may be made for the re-
statement of the fiduciary's account, where the circumstances and equity
require it, although no petition for review has been filed. Bender's EsL,
33 York 125.

Decedent died leaving a will, bequeathing certain specific legacies to a
church, also the residue of her estate to said church. One of the witnesses
to the will was a member of the congregation. The account of the execu-
tor was duly filed, audited and confirmed, and distribution made to the
testamentary trustee.

About one year after the filing of the account by the testamentary
trustee, and after distribution had been made under the terms of the will,
the petitioner and next of kin filed his petition asking that the confirmation
of the adjudication be vacated and for restitution of awards.

"It was well settled under the law that in order to open an adjudication
after distribution has been made, unless there is an apparent error of law
on the record or fraud be shown to have entered into the decree or induced
it, that no review of the adjudication will be allowed. In this case there
is no error of law appearing on the face of the record, no new matter has
arisen since the adjudication, and no new evidence which was not in the
control of the petitioner, or could by due diligence have been procured and
offered before the adjudication no fraud being shown, and the fund
having been paid and record satisfied, the petition must be dismissed."

Riser's Est, 35 Montg. 169.

The decedent died possessed of no shares of the common stock of
the A Company, which, on March 16. 1914, was adjudged a bankrupt and
petitioner became trustee. On Oct. 9, 1914, the executors filed their
account, which was confirmed absolutely Oct. 24th, and. then, transferred
the fund to two of their number as trustees ; the third, who was a non-
resident, was discharged Nov. loth. In August, 1919, the trustee in



FIDUCIARIES ACT SECTIONS 48-49 (<0 423

bankruptcy filed this petition, alleging the above facts and, inter alia, that
shortly after he became trustee he applied to the United States District
Court for the levy of an assessment on all holders of unpaid common
stock of the A Company to raise funds to meet its corporate indebtedness,
and that, Nov. 7, 1918, the Court levied an assessment of 45.2 per cent,
amounting to $4,972, against the decedent. The petitioner, therefore,
prayed that the adjudication of the executors' account be opened, the
confirmation set aside, and a readjudication made thereon, awarding the
trustee said sum, with interest from Nov. 7, 1918. On demurrer : Held,
that as the corporation knew at the time of the audit that the stock held by
the decedent had not been paid for and that an assessment would be
necessary to pay creditors, the facts alleged in the petition did not con-
stitute new matter, and, hence, the petitioner was not entitled to present his
claim, and the petition should be dismissed. Graham's Est., 48 Pa. C. C.
371, 28 Dist. 1023.

552. DISTRIBUTION OF ESTATES, NOT TO BE
COMPELLED WITHIN SIX MONTHS; AFTER
SIX MONTHS MAY BE ORDERED ON PETI-
TION OF CREDITOR OR ANY PERSON IN-
TERESTED.

SECTION 49. (a) No executor or administrator shall be com-
pelled to make distribution of the estate of his testator or in-
testate until six months be fully expired from the granting of
the letters testamentary or of administration in the estate. After
the expiration of said period, distribution may, be ordered by the
orphans' court having jurisdiction of the accounts of the executor
or administrator, on petition of any person having an interest in
the assets to be distributed, or on petition of any creditor of the
decedent.

NOTE. This is a modification of Section 38 of the Act of February 24,
1834, i Purd. 1130, which related to administrators only. It was copied
from Section 15 of the Act of April 19, 1794, 3 Sm. L,. 143, except that
under the Act of 1794 the year ran from the death of the intestate.

The period has now been reduced to six months. Section 47 of the Act
of 1834, i Purd. 1131, which is set forth below, after clause (d), applied
to executors.

The Commissioners recommend the repeal of the first part of Section 19
of the Act of March 29, 1832, P. L. 194, I Purd. 1127, providing for the
appointment of auditors in insolvent estates "to settle and adjust the
rates and proportions of the assets to and among the respective creditors,
according to the order established by law," and the last part ofj Section I
of the Act of April 13, 1840, P. L. 319, i Purd. 1127, providing for the
appointment of auditors to make distribution on the application of any
legatee, heir or other person interested.



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 45 of 71)