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

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to the fiduciary for a complete and detailed statement of the
nature and character of the securities in which the trust funds
are invested, and the said fiduciary shall fail for the space of ten
days to furnish such statement, or if, such statement having been
furnished, it shall appear to the said surety or sureties, or the
representatives of said surety or sureties, or other person inter-
ested in said trust, that the funds in the hands of the said fiduciary
are badly invested so as to be likely to result in a loss to the trust,
the said surety or sureties, or the representatives of said surety or
sureties, or other person interested in the trust, may present a
petition to the orphans' court having jurisdiction of said trust,
praying that an order be made requiring the said fiduciary to file
an account of the administration of his trust, which account shall
include a complete and detailed statement of the manner and
securities in which said trust funds are invested, within twenty
days after service of said order, unless the time be enlarged by
the court. Thereupon the said court shall make such order, and
if, upon the audit of such account, it shall appear to the court that
the said fiduciary has been guilty of any act of fraud or mis-
management or has invested the trust funds in securities not
authorized by law or by the will of the testator, or has made
investments which are likely to cause a loss to the trust, said
court may remove the said fiduciary and order payment of the
assets to his successor or into court.



444 FIDUCIARIES ACT SECTIONS 55-56 (a)

NOTE. This is Section I of the Act of June 3, 1893, P. L. 273, 4 Purd.
4915, changed by inserting "personal" and "deceased" in line 2, by sub-
stituting "fiduciary" for "trustee, committee, guardian, assignee, receiver,
administrator, executor or other person having trust funds in his hands,"
by requiring the filing and audit of an account instead of the filing of a
statement in the first instance, and by eliminating the provisions as to
investments outside of the state.

The Act of 1893 should be repealed only so far as it relates to fiduciaries
who are within the scope of the present act. Section 2, 4 Purd. 4916,
provides: "This act shall apply to all trusts, whether the same be within
the jurisdiction of the orphans' court, of common pleas, or of a court of
equity." Section 3 is a general repealer.

584. APPOINTMENT OF TRUSTEES TO FILL VA-
CANCIES; PARTIAL VACANCY IN TESTA-
MENTARY TRUST.

SECTION 56. (a) Whenever, by the provisions of any last will
and testament admitted to probate, a trust has been or shall be
declared of and concerning any real or personal estate, to be
executed by a trustee or trustees named in said will or by the
executor or executors of said will, whether by virtue of their
office or otherwise, and any of the said executors or trustees
shall die, renounce, resign, be dismissed from or refuse to act
in the said trust, leaving the other executor or executors, trustee
or trustees, continuing therein, it shall be lawful for the orphans'
court having jurisdiction of the accounts of such executors or
trustees, on the application of any party in interest, and with the
consent of such continuing executor or executors, trustee or
trustees, with notice to all persons interested, so far as such notice
can reasonably be given, to appoint a trustee or trustees in the
place of the executor or executors, trustee or trustees, so dying,
renouncing, resigning, dismissed or refusing to act, and to re-
quire the person or persons so appointed to enter sufficient
security for the faithful performance of the trust. The trustee or
trustees so appointed shall have the same power and interest over
and in the property in trust, as the executor or executors, trustee
or trustees, in whose stead he or they shall be so appointed as
aforesaid. It shall also be lawful for the said court to appoint a
successor or successors to such trustee or trustees from time to
time, whenever from death, resignation or otherwise, the same
shall be necessary or expedient.

NOTE. This is derived from Section 2 of the Act of April 10, 1849,
P. L. 597, i Purd. 1142 (which was confined to Philadelphia, but was
extended throughout the state by the Act of April 23, 1864, P. L,. 550, i



FIDUCIARIES ACT SECTION 56 (o), (6) 445

Purd. 1143) and Section I of the Act of April 22, 1846, P. L. 483, I Purd.
1142.

See forms 17, 91, 92.

"The auditing judge is of the opinion that the power to carry out the
charitable purpose is not confined alone to the first named executor. It is
true that in conferring this power the testator speaks of 'my executor/
using the singular number, but this the testator does because he appoints
one person sole executor, and when he later appoints succeeding executors
in the event of the original executor's death, etc., his apparent purpose is
that, in any event, there shall be some one in the office of executor who,
by virtue of their office, shall have the duty of carrying out this provision
of the will as well as the duty of performing the other services required
of executors. See, generally, Kershaw's Estate, 27 Dist. R. 659; Murphy's
Estate, 184 Pa. 310; Sheets's Estate, 215 Pa. 164; Fiduciaries Act of June
7, 1917, Sections 28 and 56 P. L. 447."

Adjudication of THOMPSON, J., in Barnwell's Est, 49 Pa. C. C. 188,
29 Dist. 317, aff'd. in 269 Pa. 443.

585. ENTIRE VACANCY IN TESTAMENTARY TRUST.

(b) Whenever, in any of the cases enumerated in clause (a)
of this section, all of the said executors or trustees shall die,
renounce, resign, be dismissed from or refuse to act in the said
trust, it shall be lawful for the orphans' court having jurisdiction
of the accounts of such executors or trustees, on the application
of any party interested, and with notice to all persons interested,
so far as such notice can reasonably be given, to appoint a trustee
or trustees in place of the executor or executors, trustee or
trustees, so dying, renouncing, resigning, dismissed or refusing
to act, and to require the person or persons so appointed to enter
sufficient security for the faithful performance of the trust. The
trustee or trustees so appointed shall have the same power and
interest over and in the property in trust, as the executor or
executors, trustee or trustees in whose stead he or they shall be
so appointed as aforesaid. It shall also be lawful for the said
court to appoint a successor or successors to such trustee or
trustees from time to time, whenever from death, resignation
or otherwise, the same shall be necessary or expedient.

NOTE. This clause is intended to empower the court to make appoint-
ments in cases where there is an entire vacancy in the office of trustee.
It follows the provisions of clause (a) so far as applicable.

A discretionary power vested in testamentary trustees virtute officii
survives to a substituted trustee appointed by the orphans' court under the
Act of April 22, 1846, Section i, P. L. 483.



446 FIDUCIARIES ACT SECTION 56 (&), (c), (rf)

Testatrix by her will bequeathed her residue estate to her executors
and trustees in trust to pay the income to B. for life, with limitations
over. In a proviso, following intervening clauses she directed them to
pay him $5,000 on his attaining the age of forty, if in their discretion
they deemed it well to do so, having regard to his character and ability.
In a subsequent clause she appointed K. and F. executors and trustees.
K. was discharged, F. died, and a trust company was appointed substituted
trustee : Held, that the power vested in the trustees virtute officii and
could be properly exercised by the substituted trustee.

The provisions of Section 56 (&) of the Fiduciaries Act (which re-
pealed the Act of April 22, 1846, Section i (P. L. 483), do not apply to
the question of the survival in substituted trustees of discretionary powers
vested in the original trustee. Kershaw's Est., 27 Dist. 659.

586. APPOINTMENT OF TRUSTEE WHERE EXECU-

TOR DECLINES TO ACT, OR IS DIS-
CHARGED; APPOINTMENT OF SEPARATE
TRUSTEES FOR SEVERAL PARTIES.

(c) In all cases of trusts created by will, and annexed to the
office of executor, such executor may decline to accept the trust,
or be discharged therefrom, without affecting his office of execu-
tor, and the orphans' court of the proper county shall have power
to fill the vacancy by appointment; and if a trust fund or estate
is committed to an executor or other trustee, in which several
cestuis que trust have or are entitled to enjoy a separate interest,
and a vacancy should in any manner occur in the office of the
trustee thereof, the said court may appoint one or more trustees
of such estate or fund, for each of the said cestuis que trust,
on his or her application ; and the said trustee shall give security
as in other cases.

NOTE. This is Section i of the Act of March (April) 13, 1859, P. L.
6n, i Purd. 1143. The only change made is to substitute "in other cases"
for "is provided by existing laws," at the end of the clause.

587. JURISDICTION OF ORPHANS' COURT TO BE

EXCLUSIVE.

(d) The jurisdiction of proceedings under the provisions of
this section shall be exclusively in the proper orphans' court :
Provided, however, That nothing herein contained shall be con-
strued to affect the jurisdiction of any court of common pleas in
proceedings pending at the date of the approval of this act.

NOTE. This clause is introduced to take away the concurrent jurisdiction
of the common pleas to appoint substituted testamentary trustees. This



FIDUCIARIES ACT SECTIONS 56 (d)-tf (a) 447

involves the repeal of Sections i and 2 of the Act of April 14, 1828, P. L.
453, 4 Purd. 4894, Sections 18, and 23 to 26 of the Act of June 14, 1836,
P. L. 634, 4 Purd. 4895-4900, and Section 5 of the Act of May 3, 1855,
P. L. 416, 4 Purd. 4900, so far only as they relate to testamentary trustees.
Sections i and 2 of the Act of March 22, 1825, P. L. 107, 4 Purd. 4894,
conferring jurisdiction upon the supreme court, though doubtless obsolete
since the Constitution of 1874, still appear in the Digests, and should be
repealed by the present act so far as they relate to testamentary trustees.

See Lewis' Est, 30 Dist 391.

588. NON-RESIDENT FIDUCIARIES; CORPORA-
TIONS OF OTHER STATES AS FIDUCIARIES
POWERS; APPOINTMENT OF NON-RESI-
DENTS AND FOREIGN CORPORATIONS AS
FIDUCIARIES.

SECTION 57. (a) Any fiduciary appointed by any orphans' court
of this commonwealth, or by virtue of any last will and testament,
probated within this commonwealth, may, if resident within
this commonwealth, lawfully execute the duties of his trust,
whether or not he is a resident of the county in which
the trust was created, or in which the decedent had his
domicile. The court having jurisdiction may, in its discretion,
appoint or refuse to appoint as trustee or guardian any person
who is not a resident of this commonwealth, or a corporation of
any state of the United States of America, other than Pennsyl-
vania, duly authorized by its charter or by law to act as such
fiduciary, and shall require in all cases of a non-resident of this
commonwealth, or of such corporation, a bond, with sufficient
sureties, conditioned for the faithful discharge of the duties of
the trust; but the court may, in its discretion, permit such cor-
poration to give its own bond without sureties. Every appoint-
ment by will of a trustee or guardian who is a non-resident of
this commonwealth shall be subject to the approval of such court
and the court may require the entry of such bond. No such
appointment shall be made of, nor shall letters testamentary be
issued to, a corporation of another state, unless such corporation
shall first file with the clerk of said court or with the register of
wills, as the case may be, an appointment in writing of an
attorney-in-fact, resident within the respective county, upon
whom service of process and notices may be made.

NOTE. This is Section i of the Act of May 17, 1871, P. L. 269, 4 Purd.
4923, confined to fiduciaries who are within the scope of the new act,
altered in phraseology and extended to testamentary guardians and to



448 FIDUCIARIES ACT SECTIONS 57 (a), (&)-$8 (a)

corporations of other states. The clause as now worded is believed to
express the meaning of the ambiguous language of the Act of 1871. See
Plummer's Estate, 24 Dist. Rep. 542. The last sentence is new.

589. APPOINTMENT OF RESIDENT CO-TRUSTEES.

(&) When the trustee or trustees of any estate shall reside out
of this commonwealth, and any part of the trust estate, property
or fund is situated within this state, the proper orphans' court
may, on the petition of any of the parties interested in said trust
property, appoint one or more trustees resident within this com-
monwealth, to act in conjunction with said non-resident trustee
or trustees in the management and disposition of said trust ; and
the said court shall have the same power over said trustee or
trustees so appointed that it has in other cases of trust.

NOTE. This is Section 2 of the Act of March 17, 1838, P. L. 81, 4 Purd.
4900, with slight changes of phraseology. That section is recommended
for repeal so far as it relates to trustees concerned with decedent's estates.

590. FOREIGN FIDUCIARIES, EXECUTORS, ADMIN-

ISTRATORS AND TRUSTEE.

SECTION 58. (a) Except as hereinafter provided, no letters
testamentary or of administration, or otherwise, which may be
granted out of this commonwealth, purporting to authorize any
person to intermeddle with the estate of a decedent, shall confer
upon such person any of the powers and authorities possessed by
an executor or administrator under letters granted within this
state ; nor, except as hereinafter provided, shall any appointment
of a trustee of a decedent's estate or any part thereof by will
probated out of this commonwealth, or by any court out of this
commonwealth, confer upon such person any of the powers and
authorities possessed by a trustee under a will probated within
this state or appointed by an orphans' court of this state.

NOTE. This is founded on part of Section 6 of the Act of March 15,
1832, I Purd. 1074. The provision was new in that act, the Commissioners
remarking: "The practice of recognizing foreign letters of administration
is believed to be almost peculiar to this state. It originated in the Act of
1705. We propose an alteration of the law in this respect. In the case
of M'Cullough v. Young (i Binney 63; and see i Dall. 457), the court
admit that much inconvenience may arise from this provision of our law,
and suggest that it may be a fit subject for legislative interposition. We
have introduced the last of these provisions in consequence of this sug-
gestion and with entire conviction of its propriety."



FIDUCIARIES ACT SECTION 58 (a), (t), (c) 449

The changes now made are to insert the words "except as hereinafter
provided," so as to except the cases covered by the subsequent clauses of
this section, to transpose the clause beginning "which may be granted,"
so that it stands after "otherwise" instead of after "decedent," and to add
the provision as to trustees.

A trustee appointed in another state to execute a trust created by the
will of a decedent, domiciled in that state, there being no power or
direction to sell contained in the will, will not be authorized by an
orphans' court of Pennsylvania to sell real estate situated in this state.

"Clause (fe) contains a similar provision as to foreign guardians de-
rived from the Act of March 29, 1832, Section 7, P. L. 190, clause (c)
condensed and revised the statutory rights of foreign fiduciaries as to
personal estate; clauses (/ and g) further enlarged their powers in cer-
tain cases, while clause ( d) substantially reenacted the Act of June 23, 1897,
P. L. 200, i Purd. 1103, applying to cases where the will conferred a
power of sale, and, in view of Hoysradt v. Gas Co., making it expressly
applicable to the case of a successor trustee. Except, however, as these
subsequent clauses of Section 58 expressly conferred powers upon foreign
fiduciaries, the prohibition in clause (a) is explicit; it enacts in terms
that no appointment of a trustee by will probated out of the Common-
wealth or by any court out of this Commonwealth shall confer upon
such person any of the powers and authorities possessed by a trustee under
a will probated within this State or appointed by an orphans' court in this
State." GEST, J., in Jones' Est., 47 Pa. C. C. 463 ; 28 Dist. 282.

591. FOREIGN GUARDIANS.

(6) Except as hereinafter provided, no appointment of a
guardian, made or granted by any authority out of this state,
shall authorize the person so appointed to interfere with the
estate, or control the person of a minor in this state : Provided,
That such foreign guardian may, at the discretion of the orphans'
court having jurisdiction, be appointed by said court, on giving
security for the due performance of his trust.

NOTE. This is Section 7 of the Act of March 29, 1832, i Purd. 1085,
which was new in that act, changed by inserting the first four words
and by modifying the wording of the proviso.

See Jones' Est., 47 Pa. C. C. 436; 28 Dist. 282.

592. POWERS OF FOREIGN FIDUCIARIES IN GEN-
^ ERAL; AUTHENTICATION OF COPIES OF

SY) WILLS, OR OTHER AUTHORITY.

^f (c) It shall be lawful for any executor, administrator, trustee,
. or other person duly authorized to take charge or possession of
** 29

H

cr-



450 FIDUCIARIES ACT SECTION 58 (c)

the personal estate of any decedent, or for any guardian or other
legal representative of the estate of a minor, acting under letters
testamentary or of administration, or other authority, granted by
or under the laws of any other state, territory or possession of
the United States of America, or of any foreign country, to
assign and transfer, and to receive the dividends or interest of,
any public debt or loan of the Commonwealth of Pennsylvania,
or of any county, city, borough, township or school district
thereof, or any stocks or bonds of any corporation incorporated
under the laws of this commonwealthfrstanding in the name of,
or belonging to, the decedent, minor or cestui que trust, or any
<ri s/c<Ko mortgage debt or indenture of mortgage held by, or belonging
to, the decedent, minor or cestui que trust, upon real estate situate
within this commonwealth, and to enter or cause to be entered
satisfaction upon the record of such indenture of mortgage. Be-
fore any such act shall be done by any such executor, adminis-
trator, trustee, guardian or other person, there shall be filed in
the office of the register of wills for the county in which is
located the office for the transfer of such loans, stocks or bonds,
or, in the case of a mortgage, of the county where the mortgaged
real estate may be situated, when such person is acting under
letters or other authority granted by or under the laws of any
other state, territory or possession of the United States of Amer-
ica, a copy of the will, probate and letters issued thereon, or of
such other grant of authority, duly authenticated in accordance
with the Acts of Congress ; or, when such person is acting under
letters or other authority granted by or under the laws of any
foreign country, a copy of such will, probate and letters issued
thereon, or of such other grant of authority, certified by the official
custodian of such documents or records, under his official seal if
any, to be a true and correct copy of the originals thereof in his
possession or under his control, together with the certificate of
the presiding judge or the officer having jurisdiction or authority
over such custodian that the attestation is in due form and by the
proper officer: Provided, That before any such executor, admin-
istrator or trustee shall assign or transfer any such loans, stocks,
bonds or mortgages, or receive any interest or dividends thereon,
or enter satisfaction of any such mortgage, he shall also file, with
said register of wills, an affidavit stating that the said decedent is
not indebted to any person in this commonwealth, and that the



FIDUCIARIES ACT SECTION 58 (c), (d) 451

proposed transfer, assignment, receipt or entry of satisfaction is
not made for the purpose of removing any of. the assets of said
decedent beyond the reach of any of the creditors in this common-
wealth; and any such transfer, assignment, receipt or entry of
satisfaction without first making and filing such affidavit, shall
be void.

NOTE. This is Section i of the Act of April 8, 1872, P. L. 44, i Purd.
1103, as amended by the Act of June 13, 1911, P. L. 890, 5 Purd. 5890,
further amended so as to include the provisions of Section 3 of the Act
of April 14, 1835, P. L. 275, i Purd. 1101 ; Section 5 of the Act of March
12, 1842, P. L. 67, i Purd. lioi; Section 3 of the Act of June 16, 1836,
P. L. 683, i Purd. 1102; Section 8 of the Act of May 15, 1850, P. L. 767,
i Purd. 1102; and Section i of the Act of May 15, 1874, P. L. IQS, I
Purd. 1 1 02.

The sections of the Acts of 1835 and 1842, above referred to, were
held to be confined to executors and administrators appointed in one of
the United States: Alfonso's Executors' Appeal, 70 Pa. 347. The Acts
of 1872 and 1874 included foreign countries, but covered only the transfer
of loans of the state and the city of Philadelphia, and stock and registered
loans of Pennsylvania corporations, and not other municipal loans.

Some changes in phraseology have also been made in the Act of 1872
for the purposes of clearness and brevity.

See forms 48, 49, 53.

See Jones' Est., 47 Pa. C. C. 436; 28 Dist. 282.

593. POWERS OF FOREIGN EXECUTORS AND
TRUSTEES AS TO SALE OF REAL ESTATE.

(d) Whenever a citizen of the United States, non-resident in
the Commonwealth of Pennsylvania, shall have died owning real
estate in this commonwealth, and by his last will and testament
shall have empowered his executor or trustee to sell and convey
his real estate, it shall be lawful for said executor or trustee, or
his duly appointed successor, although not a resident in this
commonwealth, from and after the expiration of one year from
the death of such decedent, to execute any power of sale con-
tained in said last will and testament, and to sell and convey to
the purchaser the whole or any part of such real estate located
in this commonwealth : Provided, That before executing the
power of sale, a copy of the last will, probate and letters testa-
mentary, and of the decree appointing such successor, if any
there be, duly authenticated as provided in clause (c) of this
section, shall be filed in the office of the register of wills of the
county where the land is situated : Provided further, That noth-



452 FIDUCIARIES ACT SECTION 58 (d), (*), (/)

ing in this clause shall change or modify the acts of assembly
relating to collateral inheritances.

NOTE. This is Section i of the Act of June 23, 1897, P. L,. 200, i Purd.
1103, except that the period is reduced from fiye years to one year to
correspond to the reduction of the period of lien of decedents' debts; in
the first proviso, "duly authenticated copy" is used instead of "certified
copy" ; in the second proviso "clause" is substituted for "act" ; and the
provisions as to the "duly appointed successor" have been inserted: See
Hoysradt v. Gas. Co., 194 Pa. 251.

The Act of May 20, 1891, P. L. 98, Section i, I Purd. 1103, provided
that conveyances theretofore made under the authority of wills proved
as prescribed by the laws of the state of which the testator was a citizen
should, upon the recording of a duly certified copy of the will in the office
of the register of the county where the lands lay, have the same force and
effect as if the will had been duly proved in Pennsylvania. The Act of
1891 was substantially the same as the Acts of May 28, 1885, P. L. 24,
Section I, and May 22, 1878, P. L. 98, Section I. The validating Act of
April 2, 1915, P. L. 43, 6 Purd. 7288, is in similar terms. These validating
acts are not suggested for repeal.

See Jones' Est., 47 Pa. C. C. 463; 28 Dist. 282.

594. REVIVAL OF JUDGMENTS BY FOREIGN EXEC-

UTORS AND ADMINISTRATORS.

(e) It shall be lawful for foreign executors or administrators
to cause to be issued, in their names as such executors or admin-
istrators, writs of scire facias within this commonwealth, on all
judgments in favor of their decedents, the lien of which judg-
ments is about expiring : Provided, That before any further pro-
ceedings are had, letters testamentary or of administration must
be granted within this commonwealth, as provided by law.



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 48 of 71)