Raymond Moore Remick.

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

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ings heretofore commenced or instituted, and upon which final judg-
ment or decree of the supreme or superior court has been entered, or
as to which any court of common pleas has entered its judgment or
decree, and the time for an appeal therefronrj has elapsed."



FIDUCIARIES ACT SECTIONS 51 (&)-52 (a) 433

562. SATISFACTION AND DISCHARGE OF JUDG-

MENTS ON TRANSCRIPTS.

(&) When the fiduciary shall have fully paid and discharged
the amount of such judgment, the parties who have received
payment shall acknowledge satisfaction thereof, on the record
of the court of common pleas. In case of neglect or refusal so
to do, for the space of thirty days after request in writing and
tender of all the costs, the orphans' court, on due proof to them
made that the entire amount due from such fiduciary, according
to the final settlement of the said account, has been fully paid
and discharged, may make an order for his relief from such
recorded judgment, which order, being certified to the court of
common pleas, shall be entered on their records, and shall operate
as a full satisfaction and discharge of such judgment.

NOTE. This is Section 30 of the Act of March 29, 1832, i Purd. 1128
(Section 31 of the Commissioners' Draft), as amended by Section 2 of
the Act of April 27, 1909, P. L. 202, 5 Purd. 5894.

Section 30 was new in the Act of 1832. The change made by the
amendment of 1909 was merely to substitute "judgment" for "lien." The
term "fiduciary" is now substituted for the words "executor, administrator,
guardian, or other accountant," and "operate" for "inure and be received."
The words "to the extent of what they have received" are omitted after
"thereof" in line 4. The provision for a penalty of fifty dollars and
damages for neglect or refusal to satisfy has been omitted, the remedy in
the orphans' court being considered sufficient.

563. DISCHARGE OF FIDUCIARIES AND SURETIES,
CONDITIONS OF DISCHARGE.

SECTION 52. (a) Any fiduciary whose accounts shall have been
settled and confirmed and who shall have paid and transferred
the remainder of the property in his hands to his successor in the
administration or trust, if any, or to the persons legally entitled
thereto, may, on petition, be discharged by the orphans' court
having jurisdiction of his accounts from the duties of his ap-
pointment; and his sureties may be discharged from future
liability with respect thereto: Provided, That in every case of
the petition of a guardian for his discharge during the minority
of his ward, it shall be the duty of the court to appoint some
suitable person to appear and act for the ward in respect thereto.

NOTE. This is a combination of Section 21 of the Act of March 29,
1832, I Purd. 1138, and Section II of the same act, I Purd. 1087, relating
to discharge of guardians. The phraseology is altered and the section

28



434 FIDUCIARIES ACT SECTIONS 52 (a), (&)-53 GO

is extended to testamentary trustees. The provision as to discharge of
sureties has been added.

Section 21 of the Act of 1832 was derived from the first paragraph of
Section 3 of the Act of April 4, 1797, 3 Sm. L. 296. Section n was
founded on Section 4 of the Act of March 30, 1821, P. L. 153-

See forms 86-90.

564. DISCHARGE OF ONE OR MORE JOINT FIDU-

CIARIES.

(&) Whenever one or more of several joint fiduciaries shall
die or be discharged or removed by the proper orphans' court,
the said court, upon the application of any party interested, shall
have power to discharge from future liability said discharged or
deceased fiduciary and his surety or sureties, and require new or
additional security of the remaining fiduciary or fiduciaries, with
a like result in case of failure to comply as is provided by this
act when new or additional security is, for any cause, required
by such court : Provided, That such discharge shall not affect
liabilities existing at the time of the discharge of such fiduciary
or fiduciaries, surety or sureties.

NOTE. This is Section I of the Act of February 2, 1853, P. L. 31, I
Purd. 1138, changed by extending it to all fiduciaries instead of admin-
istrators only. Various alterations have been made in the phraseology,
especially by substituting "security" for "surety."

565. REMOVAL OF FIDUCIARIES, GROUNDS FOR

REMOVAL.

SECTION 53. (a) Any orphans' court having jurisdiction of the
accounts of executors, administrators, guardians or trustees shall
have exclusive power to remove such executor or administrator
and vacate the letters testamentary or of administration or to
remove such guardian or trustee, as the circumstances of the
case may require, in any of the following cases :

NOTE. In this section, there have been collected all the various causes
for removal by the court of executors, administrators, guardians and
trustees.

In line 3, the word "exclusive" has been inserted, in order to take away
the seldom-exercised concurrent jurisdiction of the court of common pleas
to remove testamentary trustees. This involves the repeal of Section 12
of the Act of March 11, 1836, P. L. 79, 4 Purd. 4887, and of Sections 16
to 21 inclusive of the Act of June 14, 1836, P. L. 633, 4 Purd. 4887-8, the
latter, however, only so far as they relate to testamentary trustees. The



FIDUCIARIES ACT SECTION 53 (a) i 435

proviso (see Sec. 574 infra), is added to save the jurisdiction of the court
of common pleas in pending cases.

See Miller's Est, 264 Pa. 310, 107 Atl. 684; Buch's Est., 35 Lane. 41;
Kelly's Est, 28 Dist. 87.

That an executor is ignorant, irresponsible and intemperate, is not a
reason for his removal where the testator was well acquainted with his
habits. One may be uneducated, financially irresponsible and a tippler and
yet be competent to administer an estate. Buch's Est., 35 Lane. 41.

566. WASTE OR MISMANAGEMENT; PROBABLE
INSOLVENCY; FAILURE TO FILE INVEN-
TORY OR ACCOUNT.

i. When such fiduciary is wasting or mismanaging the estate
or property under his charge, or is like to prove insolvent, or has
neglected or refused to exhibit true and perfect inventories, or
render full and just accounts of such estate or property, come
to his hands or knowledge;

Paragraph i is derived from Section 22 of the Act of March 29, 1832,
i Purd. 1139, with the substitution of the word "mismanaging" for "mis-
placing;" Section i of the Act of April 22, 1846, P. L. 483, i Purd. 1142;
Section i of the Act of April 7, 1859, P. L. 406, i Purd. 1143, which
extended the Act of 832 to cases of trustees; and Section i of the Act
of May i, 1861, P. L. 680, i Purd. 1141.

It cannot be said that the court abuses its discretion in removing an
executor for mismanagement of the estate where he admits that he had
failed to pay the debts of the decedent and the taxes levied against the
estate, and that he had misappropriated a portion of the rentals, made
assets for payment of debts, and fails to make any satisfactory explanation
of his actions.

"It is provided by the 53d section, clause A, (i) of the Fiduciaries Act,
that the orphans' court having jurisdiction of the accounts of executors
shall have power to remove such executor, 'when such fiduciary is wasting
or mismanaging the estate in his charge.' or 'where for any reason the
interests of the estate or property are likely to be jeopardized by the
continuance of said fiduciary.

"The executor who pays out the moneys of an estate for purposes not
authorized by law is wasting and mismanaging the estate as much as one
who converts the money of the estate to his own use. It is the bounden
duty of the court to hold a fiduciary to a strict account of his man-
agement."

From opinion of lower court affirmed in Miller's Est., 264 Pa. 310, 107
Atl. 684. See also Buch's Est., 35 Lane. 41 ; Kelly's Est., 28 Dist. 87.



436 FIDUCIARIES ACT SECTION 53 (a) i, 2, 3, 4, 5, .6

567. LUNACY, DRUNKENNESS, OR WEAK-MINDED-

NESS.

2. When such fiduciary has been duly declared a lunatic,
habitual drunkard or weak-minded person;

Paragraph 2 is derived from Section 26 of the Act of 1832, i Purd.
1140, with the addition of the words "or weak-minded person."

568. SICKNESS OR PHYSICAL OR MENTAL IN-

CAPACITY.

3. When such fiduciary has become incompetent to discharge
the duties of his trust, by reason of sickness or physical or
mental incapacity, and it shall appear to the satisfaction of the
court that such incompetency is likely to continue, to the injury
of the estate under his control ;

Paragraph 3 is derived from Section 2 of the Act of May i, 1861,
P. L. 680, i Purd. 1142, with some changes in phraseology, the omission
of the word "sole," and the substitution of "other cause" for "other
visitation."

See Buch's Est, 35 Lane. 41.

569. REMOVAL FROM THE STATE.

4. When such fiduciary has removed from this state, or has
ceased to have any known place of residence therein, during the
period of one year or more ;

Paragraph 4 is derived from Section 27 of the Act of 1832, i Purd. 1140.

Kelly's Est., 28 Dist. 87.

570. MISMANAGEMENT OR MISCONDUCT BY

GUARDIAN.

5. When any guardian, whether testamentary or otherwise,
mismanages the minor's estate or misconducts himself in respect
to the maintenance, education or moral interests of the minor;

Paragraph 5 is derived from Section 12 of the Act of 1832, i Purd. 1087.
See Cook's Est., 48 Pa. C. C. 599; (S. C. sub nom. Kerr's Petition)
29 Dist. 909.

571. FAILURE TO PAY OVER PRINCIPAL OR IN-

COME OR TO COMPLY WITH ANY ORDER
OF COURT.

6. When such fiduciary fails or neglects to pay over the prin-
cipal or income of the estate, according to his duty under the



FIDUCIARIES ACT SECTION S3 (o) 6, 7, 8, 9 437

trust, or fails or neglects to comply with any order or direction
of the court made in relation to said trust ;

Paragraph 6 is derived from Section i of the Act of April 7, 1859,
P. L. 406, I Purd. 1143.

See Kelly's Est., 28 Dist. 87.

572. NEGLECT OR ABUSE OF TRUST BY TRUSTEE
FOR RELIGIOUS, EDUCATIONAL OR
CHARITABLE PURPOSES.

7. When any trustee of property held in trust under the pro-
visions of any last will and testament for religious, educational
or charitable purposes, or for use as a burying-ground, neglects
or abuses such trust;

Paragraph 7 is derived from Section i of the Act of February 17, 1818,
P. L. 104, 4 Purd.



573. PROBABLE JEOPARDY OF INTERESTS OF ES-

TATE.

8. When, for any reason, the interests of the estate or prop-
erty are likely to be jeopardized by the continuance of any such
fiduciary.

Paragraph 8 is derived from Section I of the Act of May I, 1861, P. L.
680, i Purd. 1141.

See Miller's Est, 264 Pa. 310, 107 Atl. 684; Kelly's Est., 28 Dist. 87.

574. WHEN ALL OR A MAJORITY OF THE CESTUIS

QUE TRUST, HAVING LIFE ESTATES, DE-
SIRE REMOVAL ON ANY SUBSTANTIAL
GROUND.

9. When all the cestuis que trust, or a majority of them,
having the life estate under any trust, shall desire the removal
of the trustee or trustees upon any substantial ground not here-
inbefore enumerated, and the court, upon petition filed by them
or any of them, shall be satisfied that such substantial ground for
removal exists, in which case, the court may remove said trustee
or trustees and appoint another or others as chosen by said
parties.

Provided, however, That nothing herein contained shall be
construed to affect the jurisdiction of any court of common



438 FIDUCIARIES ACT SECTION 53 (a) 9, (fr), (c)

pleas in proceedings pending at the date of the approval of this
act.

Paragraph 9 is derived from Section i of the Act of April 9, 1868,
P. L. 785, 4 Purd. 4893, which applies only to Philadelphia, modified so as
to conform to the decision in Neafie's Estate, 199 Pa. 307.

This combination has been made in order to avoid unnecessary repeti-
tions. The following clauses deal with the procedure common to all the
cases above enumerated, and the next section covers the cases in which
the court has power to require additional security.

575. PETITION, CITATIONS, ORDERS AND DE-

CREES.

(b) Whenever it shall be made to appear to the orphans'
court having jurisdiction of the accounts of any fiduciary, on the
oath or affirmation of any person interested, that there exists any
one or more of the grounds for removal of such fiduciary enumer-
ated in the last preceding clause of this section, such court may
issue a citation to such fiduciary, requiring him to appear on a
day certain, to answer the charge so preferred, and may make
all such necessary rules and orders as the said court may deem
proper for bringing the matter complained of to a hearing. If,
on such hearing, the said court shall be satisfied of the truth of
the matters charged, it may remove such executor or adminis-
trator and vacate the letters testamentary or of administration
or remove such guardian or trustee, as aforesaid, and direct the
issuance of new letters testamentary or of administration, or
appoint a new guardian or trustee, and make such orders for the
security of the trust property and for the delivery of such prop-
erty and the books, accounts, papers and moneys belonging or
relating to the trust to the successor of such fiduciary as the
circumstances of the case may require.

NOTE. This is derived from Section i of the Act of May i, 1861,
P. L. 680, i Purd. 1141; Section 26 of the Act of 1832, i Purd. 1140;
Section 12 of the Act of 1832, i Purd. 1087; and Section i of the Act of
April 7, 1859, P- L. 406, i Purd. 1143.

576. SUMMARY REMOVAL IN CASES OF EMER-

GENCY.

(c) Any orphans' court having jurisdiction of the accounts of
any fiduciary shall have power in a case of emergency, when the
exigencies of the case shall appear to the satisfaction of the court
to require it, in order that the rights of creditors and parties



FIDUCIARIES ACT SECTION 53 (c), (<f), (*) 439

interested in the assets of the estate shall be protected, summarily
to remove such executor or administrator and vacate the letters
testamentary or of administration or summarily to remove such
guardian or trustee, on any of the grounds enumerated in clause
(a) of this section, and to direct the issuance of new letters or to
appoint a successor to such guardian or trustee, on the ex parte
petition of any creditor or party interested in the estate, and
further to make such orders for the security of the trust prop-
erty and for the delivery of such property and the books, accounts,
papers and moneys belonging or relating to the trust to the
successor of such fiduciary as the circumstances of the case may
require : Provided, That it shall be lawful for any such fiduciary,
so removed, to apply by petition to said court to have such decree
of removal vacated and to be reinstated in his office.

NOTE. This clause is new and intended to supply an hiatus in the
present law, which apparently does not fully provide for immediate
relief where the fiduciary, for example, absconds and cannot be reached
by citation or attachment.

577. DECREE REMOVING ONE FIDUCIARY NOT TO

AFFECT CO-FIDUCIARIES.

(d) No decree removing one of several co-fiduciaries shall
suspend the power or prejudice the acts of any of the other
fiduciaries.

NOTE. This is derived from the proviso to Section 27 of the Act of
1832, i Purd. 1140.

578. ENFORCEMENT OF ORDERS AND DECREES;

SUITS BY SUCCEEDING FIDUCIARY.

(0) If such superseded fiduciary shall neglect or refuse to
comply with any order or decree of the court made under the
provisions of this section, the court shall have power to enforce
obedience thereto by attachment, with or without sequestration,
execution or otherwise, as to such court shall seem necessary
and proper for the due protection of the rights and interests of
any and all parties interested; or the succeeding fiduciary may
proceed at law against the superseded fiduciary and his sureties,
if any there be, or against any other person who may be possessed
of any goods or chattels belonging to the estate of the decedent
or minor, as the case may be, or be indebted to him; or the



440 FIDUCIARIES ACT SECTIONS 53 (*)-54 (a) i

remedies by execution and suit at law may be pursued at the
same time, if the case so require, until the end be fully attained.

NOTE. This is a combination of Section 24 of the Act of 1832, I Purd.
1139, and the last part of Section i of the Act of April 7, 1859, P. L. 406,
I Purd. 1143.

579. REQUIREMENT OF SECURITY BY EXECUTOR
OR ADDITIONAL SECURITY BY OTHER FIDU-
CIARY; PROCEEDINGS BY SURETIES TO RE-
QUIRE COUNTER SECURITY, FOR DISCHARGE
OF SURETY OR FOR REMOVAL OF FIDU-
CIARY, PROCEEDINGS TO REQUIRE ADDI-
TIONAL SECURITY, DECREE; ATTACHMENT.

SECTION 54. (a) i. In any of the cases enumerated in Section
53, clause (a) of this act, the court may, upon the return of the
citation, require such security of an executor, or such other and
further security of an administrator, guardian or trustee, as they
may think reasonable, conditioned for the performance of the
trust, which security shall be taken in the name of the common-
wealth of Pennsylvania and filed in the said court, and shall be
deemed and considered in trust for the benefit of all persons in-
terested in such estate: Provided, That if it shall be made to
appear to the said court that such fiduciary is about to remove
from this commonwealth, or that the property under his charge
may be wasted or materially injured before he can be reached
by the ordinary process of the court, it shall be lawful for such
court to issue a writ of attachment, under which the same pro-
ceedings may take place as in other cases of attachment on
mesne process in the orphans' court ; and on the return of such
attachment, the court may proceed as on the return to the citation.

NOTE. This is derived from Section 22 of the Act of March 29, 1832,
i Purd. 1139. It is extended to all cases covered by clause (a) of Section
53 of the present draft, instead of merely the cases covered by paragraph I
of that clause.

Section 25 of that act, I Purd. 1140, which was derived from the Act
of March 27, 1713, i Sm. L. 81, provides that security may be required
where "an executrix, having minors of her own, or being concerned for
others, is married or like to be espoused to another husband, without secur-
ing the minors' portions or real estates." Section i of the Act of April 25,
1850, P. L. 569, i Purd. 1141, amended the above section so as to "include
all cases therein specified, whether there are minors concerned in the
estate or not, and whether the executrix is sole executrix or otherwise."



FIDUCIARIES ACT SECTION 54 (a) i, 2, (&) 441

This amendment leaves the section applicable to any case where an
executrix "is married or like to be espoused to another husband." Since
the married women's acts, there seems to be no occasion for this provision.
The original section was apparently intended to cover the case where a
widow, named as executrix, remarried or was about to remarry, and to
protect the interests of minor children of the testator against the property
rights which would be acquired by the second husband. The repeal of
Section 25 of the Act of 1832 and the amendment of 1850 is therefore
recommended.

See Buch's Est., 35 Lane. 41.

580. REMOVAL ON FAILURE TO COMPLY WITH

DECREE.

2. If such fiduciary shall neglect or refuse to give such secu-
rity, or such further security, so ordered, then the said court may
remove such executor or administrator and vacate such letters
testamentary or of administration, or remove such guardian or
trustee, and direct the issuance of new letters or appoint a new
guardian or trustee as aforesaid.

NOTE. This is derived from Section 23 of the Act of 1832, I Purd.
1139. "May remove" is substituted for "shall remove."

581. PROCEEDING BY SURETY TO COMPEL GIVING

OF COUNTER SECURITY.

(fr) Application may be made to the orphans' court, in any of
the cases mentioned in clause (a) of Section 53 of this act, by
any surety on the bond of such fiduciary, and upon the petition
of such surety duly verified by oath or affirmation, the like pro-
ceedings may be had, for the purpose of compelling such fidu-
ciary to give security, and thereupon the court may order such
fiduciary to give such counter-securities as they shall judge
necessary to indemnify the surety against loss by reason of his
suretyship. If such fiduciary shall refuse or fail to give such
security, within such reasonable time as the court shall order, it
shall be lawful for the court to direct such fiduciary to pay or
deliver over forthwith to such surety, or to some other person
for him, all of the property, moneys, books, accounts and papers
whatsoever for which such surety may be accountable or which
may belong or relate to the trust: Provided, That such surety
shall first give to the satisfaction of the court, sufficient security,



442 FIDUCIARIES ACT SECTION 54 (6), (c)

faithfully to preserve and account therefor, and deliver and dis-
pose of the same according to the order of the court.

NOTE. This is Section 28 of the Act of 1832, I Purd. 1140, with some
changes in phraseology, the substitution of "fiduciary" for "executor,
administrator or guardian," and the extension of the provisions to all
cases covered by clause (a) of Section 53 (see 565 supra), instead of
merely the cases covered by paragraph i of that clause.

582. PROCEEDING BY SURETY FOR DISCHARGE.

(c) It shall be lawful for the orphans' court having jurisdiction
of the accounts of any fiduciary, on the petition of any surety
of such fiduciary, or of the personal representatives of a deceased
surety, to issue a citation requiring such fiduciary, at the return
thereof, not less than thirty days' notice to be given of the
presentation of such petition, to file an account of his manage-
ment of the trust or estate. The said citation, upon such peti-
tion, and affidavit filed of the facts connected with the execution
and position of the trust funds or estate, shall further direct the
said fiduciary to show cause why the petitioner or his estate
should not be discharged from all future liability, if the court,
after due notice to all parties interested, deem it reasonable and
proper. If the court, on due consideration, shall discharge such
surety or his estate, the fiduciary shall thereupon give a new bond,
with surety or sureties, as the court shall order, and on failure
or refusal so to do, within such time as is ordered by the court,
shall be removed from the trust, and some other person or cor-
poration appointed. When a new bond is required under the
provisions of this clause the surety in the prior bond or his estate
shall be liable for all breaches of the conditions thereof com-
mitted before the new bond is approved according to law.

NOTE. This embodies the provisions of Sections I, 2 and 3 of the Act
of June I, 1907, P. L. 384, 7 Purd. 7701-2. Section 4 of that act is a
general repealer.

The word "fiduciary" has been substituted for "trustee, committee,
guardian, assignee, receiver, executor, administrator, or other fiduciary;"
the provisions as to representatives of a deceased surety have been in-
serted ; the reference to the court of common pleas has been omitted ;
the jurisdiction is given to the orphans' court having jurisdiction of the
accounts, instead of the court of the county of the residence of the
fiduciary; "during any regular term of the court" has been omitted after
"return thereof," and the phraseology has been modified.

The Act of 1907 seems to repeal by implication the Act of May 10,
1881, P. I,. 14, 4 Purd. 4914, which applied only to trusts created "to



FIDUCIARIES ACT SECTIONS 54 (c)-55 443

continue for, or during, a life or lives, or marriage," and provided that,
the petition shall not be presented until more than three years after the
appointment of the trustee.

The Act of 1881 amended Section i of the Act of March 27, 1865,
P. L. 44, and reenacted Sections 2 and 3 of that act.

Section I of the Act of April 17, 1866, P. L. in, 4 Purd. 4915, provided
that the petition authorized by the Act of 1865 might, "in the event of the
death of such sureties, or any one of them, be presented by the personal
representative of such surety or sureties, with like effect in all respects,
as if the petition had been presented by the deceased surety or sureties
in his or her lifetime." This provision was omitted from the Acts of
1881 and 1907, but its equivalent is now included.

583. REQUIREMENT OF STATEMENT OF INVEST-
MENTS ON TEN DAYS' NOTICE; ACCOUNT-
ING REMOVAL.

SECTION 55. In case any surety or sureties, or the personal
representatives of any deceased surety or sureties upon the bond
of any fiduciary, or any person interested in the trust, shall apply



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 47 of 71)