Raymond Moore Remick.

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

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See forms 28, 30, 54, 55.

424 FIDUCIARIES ACT-SEcrioN 49 (a), (6)

One who has a prima facie claim against the estate of a decedent is
entitled to require an account by personal representatives.

The orphans' court will not deny a creditor of a decedent the right
to proceed to have his claim adjudicated in that court and relegate him to
his common law action.

"Section 4Qa of this Act provides that after the expiration o-f six
months distribution may be ordered by the orphans' court 'On petition of
any person having an interest in the assets to be distributed, or on petition
of any creditor of the decedent.'

"The question presented is whether the petitioner (a creditor) has
sufficiently shown himself to be a creditor so as to be entitled to compel
the filing of an account The rights of creditors seem to be the same
under the Fiduciaries Act as they were under the prior existing law."

Laverty's Est., 24 Dauphin 107, 30 Dist 507, 50 Pa. C. C. 259.

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


(b) Executors or administrators may make distribution, and
pay or deliver legacies, without the audit of their accounts, upon
such security as may be satisfactory to them, neverthelesss at
their own risk, but without liability to any creditors of the
decedent who shall not have given written notice to the executor
or administrator within six months after the granting of letters
testamentary or of administration, provided that such executor or
administrator has complied with the provisions of Section 10 of
this Act. 1 Where distribution of a decedent's estate is awarded
by the orphans' court, after audit and confirmation of any ac-
count of the executors or administrators, such decree of distribu-
tion shall protect the executors or administrators from personal
liability with respect to the property so distributed. In making
distribution under such a decree, the executors or administrators
shall not be entitled to demand refunding bonds from the distrib-
utees, except in the cases specially provided for by this act, and
in other cases in which the court shall direct the giving of re-
funding bonds.

*See 397 supra.


NOTE. This is a new clause. The first sentence is founded upon Section
58 of the Act of 1834, i Purd. 1132, which was derived from Section 16
of the Act of 1794. It is here altered by substituting "the audit of their
accounts" for "application as aforesaid," and by adding the words be-
ginning "but without liability."

The remainder of the section as drafted is declaratory of the law as
laid down in the decisions: Ferguson v. Yard, 164 Pa. 586; Lejee's Estate,
5 D. R. 311 ; Piper's Estate, 208 Pa. 636.

Section 57 of the Act of 1834, i Purd. 1131, provides: "Executors, or
administrators making distribution, or paying or delivering any legacies as
aforesaid, shall not be liable for the assets so paid or distributed in
respect to any claim or demand upon the decedent not previously made
known to them, where security shall be taken, as is hereinbefore provided."
This, eliminating the requirement of security, is covered by the new

Sectional of the Act of 1834, i Purd. 1131, which required refunding
bonds to be given by distributees in all cases, has become obsolete and its
repeal is recommended. It was derived in part from Section 15 of the Act
of 1794.

1 See 391 supra.

Section 49 (&) of the Fiduciaries Act of June 7, 1917, P. L. 447, makes
it necessary for creditors of a decedent to give an executor or administrator
written notice of their claims "within six months after the granting of
letters" where notice of death has been given by publication.

The court, in declining to audit, raised the following question, which,
however, it did not decide:

"Attention is called to the first half of Section 49 (&), which makes it
necessary for creditors to give to the fiduciary written notice of their
claims "within six months after the granting of letters," where the
fiduciary has duly published notice thereof, and relieves the executor or
administrator from all liability to the creditor if this notice is not given.
Under this section these queries arise: (a) Has not the legislature given
to the fiduciary the right to distribute to those creditors only who have
given written notice of their claims, and to any other distributees without
audit? (b) How may a creditor who has failed to give the statutory
notice of his claim, compel an accounting by virtue of the right given to
him under Sec. 46 (o) and Sec. 49 (o), if the fiduciary has distributed
all of the assets to those who have complied with the law ? Has a creditor
who has failed to give this notice, which, under the other sections of the
Act regulating an orderly administration, followed by advertisement of the
accounting, audit, confirmation, and equitable distribution, is not required,
any longer any standing as a creditor, if distribution has been made, and
is the fiduciary not entitled to a decree of confirmation, because under
Sec. 46 (o) it is the duty of every executor to account? The exemption
from liability given by this section to the fiduciary is new in the law of
Pennsylvania, and referred to only because it is necessary to expressly
distinguish between the questions which may arise in determining the
rights of parties thereunder, and those under the other sections of the Act
which are cited and relied upon as the basis of the decree to be entered in

426 FIDUCIARIES ACT SECTION 49 (fr), (c), (d)

this case." TRIMBLE, J., in Cooper's Est, 29 Dist. 230, 67 P. L. J. 17, 36
Lane. 266, 20 Lack. 46, 32 York 144.

Under the Fiduciaries Act of June 7, 1917, P. L. 447, the account of an
executor or administrator should not be filed until the expiration of six
months from the date of the first insertion of the advertisement of the
grant of letters. The act contemplates an immediate advertisement, and
if the account be filed within six months of the first insertion of the
advertisement, the auditing judge may withhold confirmation.

While the act introduced no innovation in the law touching the ad-
vertisement of the grant of letters, it shortened the period allowed for
administration from one year to six months, and, hence, it becomes neces-
sary for the court to see that creditors have had due notice of the grant
of letters.

Creditors! have the right to assume that the account need not be looked
for until six months have expired from the first insertion of the ad-
vertisement Cotter's Estate, 27 Dist. 1023, 67 P. L. J. 19, 47 Pa. C. C. 76.



(c) When the personal estate of a decedent does not exceed
the value of three hundred dollars, the executor or administrator
may, after the expiration of one year after the date of granting
the letters testamentary or of administration, present his petition
to the proper orphans' court, with an annexed account showing
the administration and legal distribution of the estate, the state-
ments in the petition and the account to be verified by the affidavit
of such executor or administrator. Thereupon the court may,
upon satisfactory proof or acknowledgment of notice to all
parties known to be interested in said estate that said petition and
account have been presented, order, at the end of thirty days from
the date of filing the petition and account, the discharge of the
executor or administrator and his sureties from future liability,
without the expense of proceedings as in a formal account, unless
during said period of thirty days exceptions be filed to the account.

NOTE. This is Section I of the Act of May 6, 19:5, P. L. 265, 5 Purd.
5895, changed by inserting "personal," in the first line, by adding "and
his sureties from future liability," and by altering the language at the
end, so as to make it clear that discharge may be made at the end of
the thirty days, unless meanwhile exceptions are filed.



(</) No creditor of a decedent who shall neglect or refuse to
present his claim at the audit of the account of the executor or


administrator, held not less than six months after the grant of
letters testamentary or of administration of which public notice
has been given as provided in Section 10 of this act, 1 or at an
audit held after actual notice to such creditor of the filing of such
account, as provided in Section 46, clause (c) of this act 2 shall
be entitled to receive any share of the assets distributed in pur-
suance of such audit, whether the estate of the decedent be
solvent or insolvent.

NOTE. This is founded on the proviso to Section 19 of the Act of
March 29, 1832, P. L. 194, i Purd. 1127, which has been redrafted to
correspond to the changes made in previous sections.

The Commissioners recommend the repeal of the following sections
of the Act of February 24, 1834, as obsolete and unnecessary :

Section 39, i Purd. 1130, providing that when distribution shall be
required by any person interested, the executor or administrator shall
present to the court "a statement of all demands against the estate which
have been made known to him, and after deducting the amount thereof
from the assets in his hands, together with such further sum as may
be necessary to pay the interest and costs of suit of such as may be in
dispute, and of such as he may deem it his duty to dispute, make dis-
tribution of the residue under the direction" of the court.

Section 40, I Purd. 1131, providing that after six months from a dis-
tribution made as aforesaid, like proceedings may be had for distribution
of further assets, and so from time to time, until the whole estate shall
be distributed.

Section 47, i Purd. 1131, providing that after one year from the
granting of administration, executors shall, on the requisition of any
legatee or any other person interested, pay and deliver, under the direction
of the court, all legacies due and payable, or a proportionate part thereof,
first deducting all demands against the estate and such sums as may be
necessary to pay the interest and costs of such as are disputable or in
dispute, and shall also distribute any residue distributable under the
intestate laws.

1 See 391 supra.

2 See 541 supra.

Where a legatee presented claim for moneys alleged to be due from
executor of an estate, before an auditor appointed to distribute the balance
on the account of the administratrix of such executor and no amount
was given and no testimony was presented in support of the claim and
the auditor did not allow the claim and no exceptions were taken to his
report it was held the matter might be treated as res judicata.

Where more than twenty-one years have elapsed from the time moneys
due legatees are payable, a legal presumption of payment arises, which
must be met and overcome by evidence to the contrary, which is direct,
positive and conclusive. Feigley's Est, 35 York 17.

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

428 FIDUCIARIES ACT SECTION 49 (<?) i, 2 .




(e) i. Whenever it shall appear at the audit and distribution
of an estate in the orphans' court, that the balance, after payment
of debts, includes stocks, bonds, or other securities, which, for
reasons satisfactory to said court, have not been converted by
the accountants, it shall be lawful for said court to direct distribu-
tion of such assets in kind to and among those lawfully entitled
thereto, including fiduciaries.

NOTE. This is Section i of the Act of June 10, 1911, P. L. 870, 5
Purd. 5895, with the addition of the words "including fiduciaries."

"Where the residue of the estate consists of stocks and various trust
funds are created by the will, it is a proper case for the executors to
present a petition under section 49 (e) of the Fiduciaries Act, 1917,
P. L. 447, authorizing them to distribute the stocks in kind to the
trustees. The date of the confirmation of the auditor's report fixes
the value of the stock which is to be transferred.

Where the court is asked to make a distribution in kind under the
above act, a schedule should be presented giving the court full information
as to the number of shares of stock to be distributed and the market
value of the same, and the distribution which the trustees in their judg-
ment think should be made. That schedule can then be either adopted by
the court or modified. Skeer*s Est, 30 Dist 542, 17 North, 302, 49 Pa.
C. C. 535-

Under the Fiduciaries Act of June 7, 1917, it is within the discretion
of the orphans' court to distribute unconverted assets in kind.

Where the record did not show any effort had been made to sell un-
converted assets in the hands of an accountant in a decedent's estate,
but did show that the beneficiaries or distributees under the will had
agreed to accept in kind, and it appeared that the assets could not be
equally distributed, the Court ordered a public sale and a return of the
proceeds. Shaw's Est, 65 P. L. J. 830.

See also Evans' Est., 30 Dist. 253, 50 Pa. C. C. 241.


2. Where stocks, bonds, or other securities have been dis-
tributed in kind, as above provided, to any fiduciary, it shall be
the duty of such fiduciary to use reasonable diligence in con-
verting such securities as shall not be investments now or here-
after authorized by law ; and if such fiduciary be doubtful as to
the propriety of making sale of such securities, he may apply to
the orphans' court having jurisdiction of his accounts, by petition,

FIDUCIARIES ACT SECTIONS 49 (*) 2, (/)-SQ (a) 429

for authority and direction to sell the same; whereupon, after
due notice to all parties interested, the said court shall make such
order in the premises as to it may appear proper.

NOTE. This is Section 2 of the Act of 1911, with the substitution of the
word "fiduciary" for "guardian, trustee, or other fiduciary," and some
slight verbal changes.

This section is intended to cover the case where securities distributed in
kind to a fiduciary are not legal investments but their immediate sale would
result in substantial losses and the fiduciary might, except for the pro-
visions of this section, be compelled to make the sale forthwith on his own

Section 3 of the Act of 1911 validated previous distributions and its
reenactment is unnecessary.



(/) It shall be lawful for any employer in this commonwealth
at any time not less than thirty days after the death of his
employee to pay all wages due to such deceased employee to the
wife, children, father or mother, sister or brother (preference
being given in the order named) of the deceased employee, with-
out requiring letters testamentary or of administration to be
issued upon the estate of said deceased employee, where such
wages due do not exceed seventy-five dollars 1 in amount. If
such deceased employee shall not leave a wife or any of said
relatives surviving him, then it shall be lawful for the employer
in like manner to pay such wages to the creditors of the deced-
ent, as follows: undertaker, physician, boarding-house keeper,
and nurse, each his or her pro rata share, upon affidavit of fact
furnished. The payment of such wages as aforesaid shall be a
full discharge and release to the employer from any further
claim for such wages.

NOTE. This is founded on the Act of May 23, 1907, P. L. 201, 7 Purd.

Increased to one hundred and fifty dollars by Act of March 26, 1919
(P. L. 22).



SECTION 50. (a) Where any fiduciary has been required, or
hereafter shall be required, upon the receipt of money, to give a
refunding bond, it shall be lawful for such fiduciary, upon paying


over such money to creditors, or to parties beneficially interested,
to require, under the direction of the orphans' court having
jurisdiction of his accounts, a bond, refunding receipt or other
obligation from each person receiving such money, to indemnify
such fiduciary to the amount such person may receive.

NOTE. This is Section i of the Act of April 13, 1859, P. L. 604, I Purd.
1132, modified by substituting "fiduciary" for "executor, administrator or
guardian," and "the parties beneficially interested" for "heirs, legatees or

The Act of June 10, 1881, P. L. 106, i Purd. 1132, note (m) amended
the Act of 1859 by adding a clause authorizing a ward who had reached
lawful age and was a married woman to give her own refunding bond.
This is now omitted as unnecessary since the married women's acts. For
the same reason, Section 4 of the Act of April n, 1856, P. L. 315, 3 Purd.
2454, authorizing a married woman entitled to a legacy or distributive
share to give a refunding bond and to execute all other instruments and
perform all other acts on payment to her of moneys so distributed, is
recommended for repeal.


(b) In all cases where refunding bonds shall be given upon
the distribution of the estate of any decedent, no action or suit
thereon shall be brought after the expiration of six years from
the date of such bond: Provided, That where the creditors or
other persons entitled to the protection of said bonds, shall be
within the age of twenty-one years, non compos mentis, impris-
oned, or from or without the United States of America, or where
a creditor whose debt shall not mature within such period, shall
file within the said period in the office of the clerk of the orphans'
court where said distribution shall have been made, a copy of
particular statement of any bond, covenant, debt or demand
upon which his claim arises, then and in any such cases an action
may be brought by the creditor at any time not exceeding two
years from the coming of age, or removal of such disability of
the creditor or other person entitled to the protection of said
bonds, or the maturing of the debt or demand aforesaid.

NOTE. This is Section i of the Act of June 30, 1885, P. L. 203, i Purd.
1132. The only changes are to omit after "distribution" in line 2, the
words, "or partition," to substitute "the orphans' court where said dis-
tribution shall have been made" for "said court," no court having been
previously referred to, and to insert "or other persons entitled to the


protection of said bonds," and to make the period of limitation six years
instead of five.

Section 2, which gave five years from the passage of the Act to sue on
bonds theretofore given, need not be reenacted.


SECTION 51. (a) It shall be the duty of the prothonotaries of the
courts of common pleas to file and docket, whenever the same
shall be furnished by any parties interested, certified transcripts
or extracts from the record showing the amount appearing to be
due from, or in the hands of any fiduciary, on the settlement of
his accounts in the orphans' court of the same or any other
county, or by virtue of a decree of said court, which transcripts
or extracts, so filed, shall constitute judgments, which shall be
liens against the real estate of such fiduciary from the time of
such entry until payment, distribution or satisfaction. Execu-
tions may be issued thereon out of said court of common pleas
against the real estate only of such fiduciary, by any person or
persons interested, for the recovery of so much as may be due
to them respectively. The liens of such judgments shall cease
at the expiration of five years from the time of the entry afore-
said, unless revived by scire facias in the manner by law directed
in the cases of judgments in the courts of common law.

In case of an appeal from the orphans' court, the judgment
shall be for no more than the amount finally decreed by the
appellate court to be due, and it shall be the duty of the prothono-
tary of the common pleas, on such decree of the appellate court
being certified to him, to enter on his docket the amount so found
due and decreed by the appellate court. If such amount be
greater than that decreed by the orphans' court, the judgment for
such excess shall take effect only from the time of entering the
decree of the appellate court; but if the amount be reduced by
the final decree of the appellate court, the prothonotary shall reduce
the amount originally entered on his judgment docket and index
accordingly; and such final decree, upon appeal, being certified
and filed in said court of common pleas, the said term of five
years shall be counted from the time of such entry.

NOTE. This is Section 29 of the Act of March 29, 1832, i Purd. 1128
(Section 30 of the Commissioners' Draft), as amended by Section i of
the Act of April 27, 1909, P. L. 202, 5 Purd. 5894.


The section is now changed by omitting "of the respective counties"
after "common pleas" in line 2, by substituting "the" for "any" before
"orphans' court" in line 7, and by inserting "of the same or any other
county" after "orphans' court," the purpose of these changes being to
permit the filing of transcripts in other counties, thus supplying, so far
as it relates to the orphans' court, the Act of June 5, 1885, P. L.. 78, 2
Purd. 1426.

The section is further altered by substituting "fiduciary" for "executor,
administrator, guardian, or other accountant," by inserting the words "or
by virtue of a decree of said court," "which shall be liens" and "the real
estate of," by striking out the provisions as to execution, attachment, and
actions of debt and scire facias, and inserting "and executions may be
issued thereon out of said court of common pleas against the real estate
only of such fiduciary." The Commissioners have considered it proper
to recommend these changes so that the remedy against real estate shall
be exclusively in the common pleas and executions against personalty shall
issue from the orphans' court only. Corresponding changes are recom-
mended in the Orphans' Court Act, and a similar section has been there
drafted to permit the filing in the common pleas of transcripts of orders
of the orphans' court for the payment of money by others than fiduciaries
(see 148 supra.)

Section 29 of the Act of 1832 was derived, as to the first part, from
Section 2 of the Act of April i, 1823, P. L. 286. The provisos were new
in the Act of 1832.

The Act of 1909 amended Section 29 of the Act of 1832 so as to provide
that the transcripts should constitute "judgments" instead of "liens," and
so as to provide for execution and attachment execution thereon. The
Commissioners recommend the repeal of the Act of 1909, except as to the
validating provisions, etc., added by the Act of 1909, as follows:

"And all executions, attachment execution, and other process heretofore
issued out of any of the courts of common pleas of this commonwealth,
upon any such certified transcripts or extracts from any of the orphans'
courts of this commonwealth, if otherwise valid, and if otherwise duly
issued and served as provided by law, are hereby declared to be, and
shall be deemed and held to be lawful and valid, and no defendant,
garnishee, or other person shall be permitted to make or take any objection,
exception, plea, or defense to the same; nor shall any objection, exception,
plea, or defense heretofore made to the same be deemed lawful, valid, or
effectual, because or on the ground that there was at the time of issuing
any such process, as aforesaid, no sufficient or valid judgment upon which
such process might be issued; and the provisions hereof shall be held
applicable to all actions, suits, and proceedings heretofore commenced or
instituted, as well as to all such actions, suits, and proceedings as shall be
hereafter commenced or instituted; Provided, however, That nothing
herein contained shall apply to or affect any actions, suits, or proceed-

Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 46 of 71)