Raymond Moore Remick.

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

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NOTE. This is Section i of the Act of June 27, 1883, P. L. 163, i Purd.
1101, with slight verbal changes.

595. AWARDS TO FOREIGN EXECUTORS AND AD-

MINISTRATORS.

(/) It shall be lawful for the orphans' court having jurisdiction
of the accounts of any fiduciary to award personal property to
the foreign executor or administrator of a deceased non-resident
creditor, legatee or distributee, when it shall appear to the satis-
faction of the court, by affidavit or other evidence, that there are
no creditors of such non-resident decedent within this common-
wealth, and when it shall further appear by certificate of the
register of wills, surrogate or court of the proper jurisdiction,
duly authenticated as required by the Acts of Congress, if the



FIDUCIARIES ACT SECTION 58 (/), (g) i 453

domicile of such non-resident creditor, legatee or distributee was
in another state, territory or possession of the United States of
America, or by the proper diplomatic or consular officer appointed
by the United States of America, under his official seal, if such
domicile was in a foreign country, that the person claiming to
receive such award is authorized under the laws of such state,
territory, possession or country to receive the property of his
decedent: Provided, That the benefits of this clause shall not
extend to any case in which it shall appear that the rights of any
resident of this commonwealth may be adversely affected by such
transfer of property to such foreign executor or administrator.

NOTE. This is a new clause, copied, with a few changes in language,
and with the insertion of the words "to the satisfaction of the court," and
"or other evidence," in lines 5 and 6, from House Bill No. 248 of the
session of 1915, which, the Commissioners are advised, was vetoed.

The Commissioners are of opinion that this clause will eliminate a
hardship that frequently arises in the settlement of estates where a dis-
tributee domiciled in another state or foreign country is entitled to an
award. As the law now stands, the foreign executor or administrator
cannot be recognized by the court in awarding distribution; and the
appointment of an ancillary executor or administrator is required to be
made, although the distributee may never have resided or done business
in this commonwealth, and there is not the slightest probability of the
existence of any debts due to our citizens. This involves delay and ex-
pense, the entry of security in the office of the register of wills, with the
further costs of filing and adjudication of an account before the bond
can be released. The Commissioners believe that the rights of residents
of our own commonwealth are sufficiently safeguarded in this clause,
and therefore, in spite of the veto above mentioned, respectfully recom-
mend its adoption.

See form 93.

See Jones' Est, 47 Pa. C. C. 463, 28 Dist. 282; Moss' Est., 29 Dist. 235.

In the distribution of assets of foreign intestates, the orphans' court
of Allegheny County will require that the domicile of the decedent be
conclusively established before a decree will be made. If the distributees
are domiciled abroad, their rights to share in the estate must be clear as
well as how said shares are to be disbursed either by consular agencies
or otherwise. Foreign Intestates, 68 P. L. J. I.

596. POWERS OF FOREIGN GUARDIANS, TRUSTEES,
COMMITTEES AND OTHER FIDUCIARIES,
AS TO REMOVAL OF PROPERTY, PROOF
OF APPOINTMENT AND QUALIFICATION
OF FIDUCIARY.
(g) i. In all cases where any guardian and his ward, or trustee

and his cestui que trust, or committee and his lunatic, or any other



454 FIDUCIARIES ACT SECTION 58 (g) i

fiduciary and the person in whose interest he is acting, shall both
be non-residents of this state, and such ward or cestui que trust
shall be entitled to money, personal property of any description
or the proceeds of any sale of real estate in this state, under the
control or jurisdiction of any orphans' court, and such guardian,
trustee or other fiduciary shall produce satisfactory proof to said
court, by certificates, that he has given bond and security, with
special reference to the money or personal property to be re-
moved, in the state or country in which he and his ward or cestui
que trust reside, in double the amount of such money or of the
value of such property, as guardian, trustee or other fiduciary,
and it shall be found that a removal of the property will not con-
flict with the terms or limitations attending the right by which
the ward or cestui que trust owns the same, and that no right
of any resident of this commonwealth will be prejudiced by such
removal, then any such guardian, trustee or other fiduciary may
demand or sue for and remove any such money or property to
the place of residence of himself and his ward or eestui que trust.
If such guardian, trustee or other fiduciary and his ward or
cestui que trust reside in another state, territory or possession of
the United States of America, such certificate shall be authenti-
cated as required by the Acts of Congress, and, if they reside in
a foreign country, shall be made by the court having jurisdiction
of such guardian, trustee or other fiduciary, and authenticated
by and under the official seal of a diplomatic or consular officer
appointed by the United States of America and residing in such
country : Provided, That if it shall appear by such certificate that,
under the laws of such state, territory, possession or foreign
country, such guardian, trustee or other fiduciary, is not required
to enter security, but that the interests of his ward or cestui que
trust are safeguarded by a deposit of the money or property in
the court having proper jurisdiction, then it shall be lawful for
the orphans' court of the proper county in this state to cause
suitable orders to be made authorizing the delivering and passing
over of such money or property to such court without the entry
of security.

NOTE. This is Section i of the Act of May 13, 1889, P. L. 190, i Purd.
1085, which amended Section I of the Act of April 21, 1856, P. L. 495, now
further amended by adding the proviso, which seems to belong in this
section rather than in the next one, by including committees of lunatics
and other fiduciaries, and by making other changes as in House Bill No.



FIDUCIARIES ACT SECTION 58 (g) i, 2 455

247 of the session of 1915, which bill the commissioners are advised was
vetoed.

Those changes were to extend the act to residents of foreign countries,
thus supplying an hiatus in the law, and to provide that the bond must
have been given "with special reference to the property to be removed."

In the present draft, the condition has also been added that "no rights
of any resident of this commonwealth will be prejudiced by such re-
moval."

The Act of 1889, as amended, seems to cover all matters included in
Section 2 of the Act of April 13, 1840, P. L. 319, i Purd. 1088, and Section
i of the Act of May 25, 1871, P. L,. 279, i Purd. 1086, which are therefore
recommended for repeal.

See Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282; Foreign Intestate, 68
P. L. J. i.

597. DISCHARGE OF RESIDENT FIDUCIARY.

2. When such non-resident guardian or trustee shall produce
an exemplification under the seal of the office, if there be a seal,
of the proper court in the state or country of his residence, con-
taining all the entries on record in relation to his appointment
and giving bond, and authenticated as required by the Acts of
Congress, or by a diplomatic or consular officer appointed by
the United States of America, as provided in paragraph i of this
clause, the orphans' court of the proper county in this state may
cause suitable orders to be made, discharging any resident fidu-
ciary and authorizing the delivering and passing over of such
personal property, and also requiring receipts to be passed and
filed, if deemed advisable: Provided, That in all cases thirty
days' notice shall be given to the resident fiduciary, if such there
be, of the intended application for the order of removal; and
the court may reject the application and refuse such order when-
ever it is satisfied that it is for the interest of the ward or cestui
que trust that such removal shall not take place, or that the
claims of residents of this commonwealth are not fully protected.

NOTE. This is Section 2 of the Act of May 13, 1889, P. L. 190, I Purd.
1085, which amended Section 2 of the Act of April 21, 1856, P. L. 495,
further amended substantially as in House Bill No. 247 of the session of
1915, except that the first proviso, added by said bill, has been transferred
to the preceding paragraph, the word "filed" has been substituted for
"recorded" as to receipts, and the proviso that the benefits of the act shall
not extend to the citizens of a state or country in which a similar law does
not exist has been omitted.

The changes made by said bill were to include residents of foreign
countries, and to insert in the proviso the words "if such there be." In



456 FIDUCIARIES ACT SECTION 58 (<?) 2, (h)

the next to the last line, "residents of" has been substituted for "creditors
in."

The Commissioners are advised that House Bill No. 247 was not ap-
proved by the Governor. Notwithstanding such veto, however, the Com-
missioners, with due deference, beg leave to recommend the passage of
this and the last preceding clause.

See Foreign Intestates, 68 P. L. J. i; Jones' Est., 47 Pa. C. C. 463,
28 Dist. 282.

598. AWARD TO FOREIGN TRUSTEE, WHEN ALL
BENEFICIARIES FOR A TERM OF YEARS
OR FOR LIFE HAVE REMOVED FROM THE
STATE.

(h) When all the persons for whose benefit a valid trust shall
have been created by will, for a term of years or for life, shall
have removed from this state into any other state, territory or
possession of the United States, to reside permanently therein,
the orphans' court having jurisdiction of such trust is hereby
authorized and empowered, on application by or on behalf of all
the persons interested in the trust, to direct the trustee or trustees
appointed in and by said will, to pay over said trust moneys, or
transfer the securities in which they may have been invested, to
a trustee or trustees duly appointed by the court of such other
state, territory or possession, upon the production to said court
of satisfactory proof, by certificates, of the appointment of such
trustee or trustees in the other state, territory or possession, the
authority of such trustee or trustees to receive such moneys or
securities, and the entry of bond and security or proof of the
fact that under the laws of such state, territory or possession se-
curity is not required, such certificates to be authenticated in
the manner provided in clause (g), paragraph I of this section,
and upon the production of satisfactory proof that the removal of
the property will not conflict with the terms or limitations at-
tending the rights which the cestuis que trust have in such money
or securities.

NOTE. This is founded on Section i of the Act of May 8, 1889, P. I,.
123, 4 Purd. 4886, which includes trusts created by deed as well as by
will, and should be repealed only so far as it relates to the latter.

In the sixth line, "jurisdiction" has been substituted for "cognizance,"
and in the fourth line and subsequently the words "or possession" have
been added after "territory." Instead of the proviso in the Act of May 8,
1889, provisions have been inserted, beginning on the thirteenth line, con-
forming to those of the preceding sections founded on the Act of May 13,
1889, P. I,. 190.



FIDUCIARIES ACT SECTION 58 (/) 457

Section i of the Act of March 31, 1905, P. L. 91, 5 Purd. 5890, provides:
"Executors and administrators, in this commonwealth, shall not be re-
quired to deliver to any foreign executor or administrator any fund which
has been devised or bequeathed, in whole or in part, by the will of the
decedent, valid under the laws of this commonwealth and duly probated
at the domicile of such decedent, where any person claiming such fund,
or any part thereof, is or shall be a citizen of this commonwealth; but
such fund shall be distributed, under the direction of the orphans' court
of the proper county, to legatees, devisees and creditors, according to the
terms of said will and the laws of this commonwealth." Section 2 is
merely a repealer.

The purpose of this act is not clear. If it means that the court in this
state shall distribute to resident legatees and creditors, it seems unneces-
sary. If it means that, because there is one legatee or creditor residing
in Pennsylvania, the court here shall distribute the entire estate, it is
certainly undesirable. For a discussion of the Act of 1905, see Bertin's
Estate, 245 Pa. 256.

It is recommended that the Act of 1905 be repealed.

See Foreign Intestates, 68 P. L. J. i.

A petition by a non-resident cestui que trust, praying for an order
directing the resident trustee to transfer the trust estate to a trustee in
another state, under the Fiduciaries Act of June 7, 1917, Section 58 (h)
P. L. 447, will be refused when all parties interested in the trust have not
joined in the petition.

The Fiduciaries Act does not^apply to a case where the parties interested
resided outside of this State at the time the testatrix died, but only to
a case where they have removed from this State after her death.

The act does not direct the court to authorize the transfer of the
estate, but authorizes it to direct the transfer when satisfied that such
action will not conflict with the terms of the trust. "This clause of the
Fiduciaries Act is copied substantially from the prior Act of May 8,
1889, Section i, P. L. 123, 4 Purd. 4886, and we think its purpose is
very clear. It merely authorizes and empowers this court, on the petition
of all persons interested in the trust, when all such persons shall have
removed from this state to another state or territory, to direct the trans-
fer of the trust estate; but all persons have not joined and cannot join
in the present application, because there may be others having possible
or contingent interests in future, and their interest should not be dis-
regarded. The argument in behalf of the petitioner goes to the ex-
tent, as logically it must, that a life tenant who has removed to another
state has a legal right to require this court to direct such a transfer of
the trust estate from our jurisdiction, and it is not difficult to imagine
the disastrous results of such an interpretation of the act."

"It should be observed, moreover, that even if all the parties inter-
ested had joined in the petition, this would not be such a case as was con-
templated by the act. When the testatrix died in 1893, her grandson, the
life tenant, had been for some years a resident of Massachusetts, as his
petition states that he has lived there for thirty-six years, whereas the



458 FIDUCIARIES ACT SECTIONS 58 (/0-59 (<0

act in plain language provides for a case where the parties interested
shall have removed from this state, contemplating, of course, a removal
that has occurred after the trust has gone into effect But in this case,
when the testatrix made her will in the same year in which she died,
she selected two residents of her home city as trustees, and on the death
of the survivor, which event has occurred, appointed the present trustee,
also resident here. She deliberately intended that, although her bene-
ficiary was a non-resident, her trust estate should be administered here
by trustees in whom she reposed confidence, and the estate has been so
administered for the past twenty-eight years.

The act does not direct the court to authorize the transfer, but con-
versely authorizes the court to direct the transfer, upon the production
of satisfactory proof that the removal of the property will not conflict
with the terms or limitations attending the rights which the cestuis que
trust have in the money or securities. This court certainly has some dis-
cretion in the matter, and as we are of opinion that the present case is
not such as was intended by the legislature, the petition is accordingly
dismissed." GEST, J., in Dixon's Est., 30 Dist 463.

599. GUARDIANS, POWER OF ORPHANS' COURT
TO APPOINT; EFFECT OF APPOINTMENT.

SECTION 59. (a) The orphans' court of each county shall have
the care of the persons of minors resident within said county, and
of their estates, and shall have power to admit such minors, over
the age of fourteen, when and as often as there shall be occasion,
to make choice of guardians, and to appoint guardians for such as
are under the age of fourteen or otherwise incompetent to make
choice for themselves. Such appointment or admission of a
guardian by the orphans' court of the county in which the minor
resides, shall have the like effect in every other county in this
commonwealth, as in that by the orphans' court of which he shall
have been so admitted or appointed.

NOTE. This is Section 5 of the Act of March 29, 1832, i Purd. 1083,
altered by inserting in the fourth line the words "over the age of four-
teen," by substituting in lines 6 and 7, the words "are under the age of
fourteen" for "they shall judge too young," and by omitting the first
part of the proviso, which is covered by clause (&).

Section 5 of the Act of 1832 was derived from Sections 7 and 12 of the
Act of March 27, 1713, i Sm. L. 81. The Act of 1832 confined the juris-
diction to minors resident within the county, and omitted that part of
Section 7 of the Act of 1713 which empowered the court "to order and
direct the binding or putting out of minors apprentices to trades, hus-
bandry or other employment."

See forms 18, 19, 94, 95.



FIDUCIARIES ACT SECTION 59 (a) 459

The parents of the minor lived in Philadelphia, where the father died
in 1909. The mother continued to reside in Philadelphia until she re-
married in 1913, since which time she has lived with her second husband
in Montgomery County. The minor was taken by the mother to their
new home, where she now resides with her mother and stepfather. On
a petition to the Orphans' Court of Philadelphia County to appoint a
guardian of the minor's estate : Held, the jurisdiction belonged to the
Orphans' Court of Montgomery County, and the petition was dismissed.

The Act of March 29, 1832, par. 5, P. L. 190, reenacted in Section 59 of
the Fiduciaries Act of June 7, 1917, P. L. 447, vests the jurisdiction to
appoint a guardian of a minor's estate in the orphans' court of the county
wherein the minor is resident. "We are of opinion that the jurisdiction
to appoint a guardian of this minor's estate belongs to the Orphans' Court
of Montgomery County and not to us.

"The question is a narrow one, and we have not been able to find any
decision absolutely controlling. The Act of March 29, 1832, Section 5,
Purd. 1083, reenacted in Section 59 (a) of the Fiduciaries Act of June
7, 1917, P. L. 447, vests the jurisdiction in the orphans' court of the
county wherein the minor is resident. Judge ASHMAN, in Mintzer's Est.,
2 Dist. R. 584, expressed the opinion that the word resident was prob-
ably used advisedly, instead of domiciled, and the supreme court, in
Taney's Appeal, 97 Pa. 74, and Wilkin's Est, 146 Pa. 585, appear to take
the same view. Other courts may have expressed a different opinion,
and we need not insist upon the distinction in this case, but if such dis-
tinction exists, it would afford further ground for our decision."

"We have examined numerous cases upon the general subject, and find
none that appear to rule the present. In our opinion, there is no reason
why the mother, being the natural guardian and next friend of her child,
should not be able, on her remarriage, to remove into another county
of the state without separation of her legal residence from that of her
child, and, from the standpoint of convenience, it is certainly preferable
that the guardian of her child's estate should be appointed by, and be
subject to the control of, the court of the county where they both live,
rather than by that of another county that may be hundreds of miles
away." GEST, J., in Jacoby's Est., 47 Pa. C. C. 183, 28 Dist. 7.

Testatrix bequeathed to her granddaughter the sum of $25,000 to be
paid to her with accumulated interest on reaching the age of eighteen
years. On reaching that age, the minor petitioned for payment of the
legacy, which, with interest, then amounted to the sum of $44,911. Held,
that the duty of the court to safeguard the property of minors under the
Fiduciaries Act of June 7, 1917, Sec. 59, P. L. 447, required that the
petition be refused.

Semble : The direction in the will cannot confer upon the minor
legatee a capacity greater than that conferred by the law.

"By statute, this court is entrusted with the care of the persons of
minors here resident and of their estates : Act of March 29, 1832, Section
5, P. L. 190, I Purd. 1083; Fiduciaries Act of June 7, 1917, Section 59,
P. L. 447. We think we should, therefore, be derelict in our duty if we



460 FIDUCIARIES ACT SECTION 59 (a), (6)

permitted so large a sum to be paid over to a young woman of eighteen
years. An allowance of a dollar a week for spending money is not
comparable with $45,000 paid in a lump. Minors should be protected
against themselves until they reach the age when the Legislature says
that they are old enough to stand on their own feet and take their
chances.

"Notwithstanding what was said in Grauch's Estate, 13 Dist. R. 329,
that the testator could make his own law, we are of opinion that our
duty to safeguard the property of minors requires us to refuse the
prayer of the petition." GEST, J., in Crampton's Est., 46 Pa. C. C. 273,
26 Dist. 1060, 35 Lane. 246.

As the control of the interest of minors in the money compensation
under the Workmen's Compensation Act of June 2, 1915, P. L. 736, rests
within the general jurisdiction of the orphans' court, and this has not
been changed by the Fiduciaries Act of June 7, 1917, P. L. 447, the Work-
men's Compensation Board is without power to commute the interest of
minors without guardians, and to authorize investment of the amounts
commuted in real estate without the approval of the orphans' court.

Dolan v. Pittsburgh Coal Co., 27 Dist. 877, 66 P. L. J. 241.

600. PERSONS OF SAME RELIGIOUS PERSUASION
AS PARENTS TO BE PREFERRED AS GUARD-
IANS OF THE PERSON.

(&) Persons of the same religious persuasion as the parents
of the minors shall, in all cases, be preferred by the court, in
their appointment as guardians of the persons of such minors.

NOTE. This is founded on the first part of the proviso to Section 5
of the Act of March 29, 1832, i Purd. 1083.

The Fiduciaries Act of 1917 reenacts the provisions of the Act of March
29, 1832, and makes it the imperative duty of the court to appoint a
guardian of the person of a minor of the same religious faith as that
of the parents, if it can be done without materially affecting their tem-
poral welfare.

"It is very evident, from the facts in this case, that it was the expressed
intention of both parents of these minors that they should be brought
up in the Catholic faith, the mother emphasizing this desire by appointing
a testamentary guardian for the children who was of that faith. We
feel that we should not ignore one of the last thoughts and wishes of the
mother, concerning the care, religion and training of her children; and
that under the Acts of Assembly compelling us to properly regard the
faith of the parents in appointing a guardian and authorizing us to
remove a guardian only for mismanagement and misconduct, we cannot
in view of the facts in this case, remove the guardian." SCHAEFFER, P. J.,
in Spencer's Est., 10 Berks 171.

Both parents of three minor children died, the mother being a member
of the Roman Catholic Church, and the father a member of the Protestant
Episcopal Church. The sister of the father was appointed guardian of



FIDUCIARIES ACT SECTION 59 (&), (c), (d) 461

the estates of the minor children in the lifetime of the father. Subsequent
to his death two petitions were presented to the court for the appointment
of the paternal grandfather and the maternal uncle respectively, as guard-
ian of the persons of said minors. The petition for the appointment of
the maternal uncle claimed that under Section 59 (6) of the Fiduciaries
Act of 1917, the court was obliged to appoint a guardian of the persons,
of the same religious persuasion as that of the mother, the facts being
that before marriage, the father orally agreed that the children should be



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 49 of 71)