Raymond Moore Remick.

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

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of common law, where money is paid into court by sheriffs or coroners,"
in line 17.

Section 45 of the Act of February 24, 1834, P- L. 82, i Purd. 1122, re-
lating to the giving of refunding bonds by distributees of the proceeds
of real estate, applies to all sales under order of the orphans' court,
including partition. In a note to Section 16 (&) of the Fiduciaries Act
(see 447 infra) the above section is recommended for repeal. There
seems to be no reason for re-enacting it as to partition sales only.



PARTITION ACT SECTIONS 33-34-35 (o) 35

Section 48 of the Act of 1832, 3 Purd. 3444, and Section i of the Act
of April 13, 1869, P. L. 28, 3 Purd. 3446, relating to payment to a husband
of money awarded to his wife in partition proceedings, would seem to be
obsolete since the Married Women's Acts and the act abolishing separate
acknowledgments. Their repeal is therefore recommended.

44. ACCOUNT OF EXECUTOR, ADMINISTRATOR, OR

TRUSTEE.

SECTION 34. Upon the sale of any real estate by an executor,
administrator or trustee, in proceedings in partition in the or-
phans' court, it shall be the duty of the said executor, adminis-
trator or trustee to file in the orphans' court of the proper
county an account of the proceeds of such sale.

NOTE. This is Section i of the Act of April u, 1863, P. L. 341, 3 Purd.
3445, altered by inserting "executor" in lines 2 and 4, by changing "after"
to "in" in line 2, by substituting "orphans' court" for "office of the
register," and by substituting "the proceeds of such sale" for "his said
administration or trusteeship," and omitting, at the end, "in the same
manner as is required by law in the settlement of estates of decedents."

45. COSTS AND COUNSEL FEES IN GENERAL.

SECTION 35. (a) The costs in all cases of partition in the or-
phans' court, with a reasonable allowance to the petitioners for
counsel fees, to be taxed by the court, or under its direction,
shall be paid by all the parties, in proportion to their several
interests.

NOTE. This is Section I of the Act of April 27, 1864, P. L. 641, 3 Purd.
3455, so far as it relates ot the orphans' court. The act is not to be re-
pealed so far as it relates to the common pleas.

Section 36 of the Act of March 29, 1832, 3 Purd. 3423, provides that
the orphans' court shall have power "to give judgment * * * * that
the costs thereof be paid by the parties concerned." This seems to have
been supplied by the Act of 1864, and is now recommended for repeal.

Counsel fees in partition cases must be based on compensation for the
usual and accustomed service in each case. In case of a contest between
the heirs, compensation for such services must be paid by individual heirs,
and cannot be taxed against all of them.

"The Partition Act of 1917 is, with slight verbal changes an exact

reproduction of the Act of 1864 There is no room for doubt as

to what the Legislature intended by this enactment. While in the ordinary
course of practice, a partition was for the benefit of all the owners of the
property divided, before the act the entire burden of the compensation
of counsel for conducting the formal proceeding was thrown upon the

petitioners in the orphans' court. In every case professional aid

was indispensable, and the purpose of the statute was to divide the cost



36 PARTITION ACT SECTIONS 35 (a), (6)-36 (a), .(&)

of the employment of that aid amongst the parties equally benefited by
the result of the proceedings. But it was indispensable aid only that was
contemplated such usual and accustomed service as the exigencies of
each case should render necessary. The compensation of counsel for
services in the trial of contested causes was not the end in view."
Quoting from Grubb's Appeal, 82 Pa. 23. Per Stewart, P. J., in Klase's
Est. 18 North 46.

46. IN CASES OF SALES.

(fc) In all cases of sales of real estate, under the provisions
of this act, it shall be lawful for the court to order and decree
that the costs and expenses of said proceedings, including a
reasonable compensation to the executor, administrator or trustee
by whom said sale shall be made, shall be paid, on the confirma-
tion of such sale, out of the proceeds thereof.

NOTE. This is the first part of Section I of the Act of May 23, 1871,
P. L. 274, 3 Purd. 3446, with slight changes in phraseology, and the sub-
stitution of "out of the proceeds thereof" for "by the court," at the end.
In line 2, the words, "and may" are omitted after "shall."

47. PRIVATE SALES, WHEN ORDERED.

SECTION 36. (a) When any orphans' court having jurisdiction
of any proceedings in the partition of real estate shall order, or
has ordered, any such real estate or any purparts thereof to be
sold, said court may authorize or direct a private sale thereof,
or may approve, ratify and confirm a private sale thereof made
under an order for a public sale, if in the opinion of the court,
under all the circumstances, a better price can be obtained at a
private sale than at a public sale thereof.

NOTE. This is Section i of the Act of May 22, 1895, P. L. 114, 3 Purd.
3454, limited to the orphans' court. So far as it relates to the common
pleas, the repeal of that section is not recommended.

In lines 4 and 5, "authorize or direct" is substituted for "decree and
approve." The provision for security is omitted, being covered by Section
25 of this draft (see 35 supra).

48. NOTICE OF SALE.

(b) Before authorizing or directing any private sale of real
estate under this act, public notice thereof shall be given by ad-
vertisement printed in at least one newspaper, published in the
county where such real estate is situated, and in such other



PARTITION ACT SECTIONS 36 (&), (c)-37 37

papers as may be designated by the court, once a week for a
period of three weeks prior to the date fixed by such order for
authorizing or confirming such sale, and also written or printed
notices, one of which shall be posted at a conspicuous place on
the real estate proposed to be sold, and at least three of which
shall be posted at three of the most public places in the vicinity
of such real estate. Before authorizing or directing such sale,
the court shall require proof, by affidavit to be filed in the pro-
ceeding, that notice as aforesaid has been given. Such notice
shall specify the location and description of the real estate pro-
posed to be sold, the name of the proposed purchaser and the
price agreed to be paid.

NOTE. This is copied from Section 16 (m) 2 of the Fiduciaries Act
(see 451 infra).

49. SETTING ASIDE SALE.

(c) On the day fixed by such order and notice for authorizing
or directing such private sale, any party interested as heir, devisee
or intending purchaser, or any legatee whose legacy is, by the
express terms of the will, or by law, charged on such real estate,
may appear and object to such private sale on account of the
insufficiency of the price, and, if such objection be sustained, may
offer to give or pay a substantial increase for such property. The
court, at its discretion, may thereupon authorize or direct such
sale, or refuse to authorize or direct the same, and accept any
substantially increased offer, and may authorize the sale of such
property to such new bidder upon compliance with the conditions
of sale and giving such security as shall be directed by the court.
Such party interested or legatee may appear as aforesaid and
object to such sale on any legal or equitable grounds. Nothing
herein contained shall be construed to affect the existing law with
respect to objections to public sales.

NOTE. This is copied, with slight modification, from Section 16 (w)
3 of the Fiduciaries Act (see 452 infra).

50. LANDS IN ADJOINING TRACTS IN DIFFERENT

COUNTIES.

SECTION 37. When the lands, in respect to which application
for partition shall be made to the orphans' court as aforesaid,
lie in one or more adjoining tracts, in different counties, it shall
be lawful for the orphans' court of the county in which the



38 PARTITION ACT SECTIONS 37-38 (a)

mansion house is situated, or, if there be no mansion house, the
court of the county where the principal improvements may be,
or, if there be no improvements, the court of either county, on
the application of any person interested, either to proceed by the
appointment of commissioners as aforesaid, or to issue its writ
to the sheriff of the county within the jurisdiction of the court,
specifying the lands of which a partition or valuation is to be
made. Thereupon the said sheriff shall summon an inquest to
divide or value the said lands, in the same manner as if the whole
were within his proper bailiwick. Upon the return thereof, or
upon the return of the commissioners appointed by the court, as
aforesaid, the court may further proceed therein, in all respects
as if all the said lands were in the county. Any recognizance
taken in pursuance of such proceedings shall be as effectual, to
all intents and purposes, as if the lands bound by it were wholly
within the county where such recognizance is taken. A certified
copy of the proceedings which may be had shall, within twenty
days after the final decree therein, be delivered to the clerk of the
orphans' court of each county in which the application shall not
have been made, and in which any part of the said lands are
situate, which shall be entered on the records of such court
at the joint expense of all parties concerned.

NOTE. This is Section 44 of the Act of March 29, 1832, 3 Purd. 3447,
which was founded on Section i of the Act of April i, 1805, P. L. 205.
4 Sm. L. 246. It is now altered by inserting the provisions as to the man-
sion house, improvements, etc., as used in the Fiduciaries Act In the
proviso, "certified copy" is substituted for "exemplification."

51. LANDS IN DIFFERENT COUNTIES, BUT NOT IN
ADJOINING TRACTS, WHERE PROCEEDINGS
SHALL BE BROUGHT.

SECTION 38. (a) All proceedings for the partition or valuation
of real estate, under the provisions of this act, where the real
estate to be divided or valued is situate in two or more counties
of this commonwealth, but not in adjoining tracts, shall be brought
only in the county where the decedent, whose land is to be divided
or valued, had his domicile, or if he had no domicile in the state,
then in the county where the larger part of the estate in value
shall be situated; or, with leave of such court, the parties inter-
ested may institute proceedings in the orphans' court in each
county where such real estate is situated.



PARTITION ACT SECTIONS 38 (a), (&), (c) 39

NOTE. This is founded on Section i of the Act of February 20, 1854,
P. L. 89, 3 Purd. 3447, so far as the same relates to the orphans' court,
and Section I of the Act of April 17, 1856, P. L. 386, 3 Purd. 3448, con-
struing the former.

The Act of 1854 includes the common pleas and is not to be repealed
in that regard.

After "real estate" in line 2, the words "the recovery of dower or the
widow's third or other part" have been omitted as unnecessary, the
widow's remedy in the orphans' court being now by partition proceedings.
The word "recovered" is omitted after "valued" in two places, for the
same reason. The words "if he had no domicile in this state, then" have
been substituted for "the homestead"; and after "shall be situated" the
words "or any defendant may be found" are omitted. The last clause
is substituted for the provisions of the Act of 1856, which are unneces-
sarily obscure but which mean the same as the substituted clause.

Section 2 of the Act of May 14, 1874, P- L. 156, 3 Purd. 3449, supple-
mental to the Act of 1854, provides that "Nothing contained in this act
or the acts to which it is a supplement, shall be so construed as to prevent
any tenant in common or joint-tenant of real estate, situated in two or
more counties of this commonwealth, from bringing a separate suit, either
at law or in equity, in either or any of such counties, for partition or
valuation of so much of such real estate as is situated therein, except in
the case where such real estate consists of single tracts lying in adjoining
counties." This is recommended for repeal, so far as it relates to the
orphans' court.

52. SERVICES OF PROCESS AND NOTICES.

(&) In proceedings under this section, all process, writs and
notices required to be served personally upon any person or
persons interested in such proceedings may be served by the
sheriff of any county of this state under deputization from the
sheriff of the county in which such proceedings have been insti-
tuted or commenced.

NOTE. This is taken from Section i of the Act of April 17, 1856, P. L.
386, 3 Purd. 3448, with the addition of the provision for service in any
county of the commonwealth.

Section i of the Act of February 20, 1854, P. L. 89, 3 Purd. 3447, pro-
vides that "service of process may be made by any sheriff, where real
estate to be divided shall be situated, or any defendant may be found."

53. SELECTION OF COMMISSIONERS OR JURORS;

COMPENSATION AND MILEAGE.

(c) The commissioners or jurors for making partition or valu-
ation under the provisions of this section may be selected from
the county in which such proceedings are instituted, or from



40 PARTITION ACT SECTION 38 (c), (d), (*), (/)

any one or more of the counties in which such land is situate.
The compensation and mileage of said commissioners or jurors
shall be the same as is provided in Section 7* of this act.

NOTE. This is derived from Sections i and 2 of the Act of April 17,
1856, P. L. 386, 3 Purd. 3448. That act specially provides for the sheriff's
fees and the jurors' fees and mileage. Commissioners are now included,
provision is made that the commissioners or jurors may be selected from
any one or more of the counties instead of only from the county where
the proceedings are instituted, and reference is made to Section 7 of this
draft for the provisions as to their compensation and mileage. The pro-
vision that the sheriff shall receive two dollars a day for each day after
the first, is omitted, since it is properly covered by the sheriff's fee bills.

1 (See 9 supra.)

54. SALES.

(d) This section shall include all proceedings in partition neces-
sary to be had, as well before as after the refusal of the parties
to take real estate at the valuation ; and the said courts in which
such proceedings are had, are hereby authorized to order the
sale of such real estate, after such refusal, in the same manner
as if all the real estate were situated in the county in which such
proceedings are instituted : Provided, That the sales of such real
estate shall be held in the county in which the real estate is situ-
ated, unless otherwise ordered by the said courts.

NOTE. This is part of Section i of the Act of March 30, 1869, P. L.
15, 3 Purd. 3448, supplemental to the Act of 1854.

55. PROCEEDINGS NOT SPECIALLY PROVIDED

FOR IN THIS SECTION.

(e) Except as otherwise provided by this section, the pro-
ceedings hereunder shall be the same as provided by this act in
other cases of partition and valuation.

NOTE. This is taken from the last clause of Section I of the Act of
May 14, 1874, P- L. 156, 3 Purd. 3449.

56. FILING CERTIFIED COPIES IN OTHER

COUNTIES.

(/) Certified copies of the record may be filed in every county
where such real estate shall be situated, in the office of the clerk
of the orphans' court thereof, and be received in evidence, with
the like effect, as the records of the court where filed.



PARTITION ACT SECTIONS 38 (/)-39 (), (&) i 41

NOTE. This is taken from the last part of Section i of the Act of Feb-
ruary 20, 1854, P. L. 89, 3 Purd. 3447, substituting "certified copies" for
"exemplifications."

57. RECOGNIZANCES IN GENERAL, ASCERTAIN-

MENT OF AMOUNTS DUE.

SECTION 39. (a) In all cases of partition in the orphan's court,
where the court shall order and decree any party taking any por-
tion of the estate at a bid or at the appraisement, or purchasing
the same at a sale, as hereinbefore provided, to give any recog-
nizance for the payment of any part of bid, valuation or pur-
chase price, the court shall have power to appoint an auditor
for the purpose of ascertaining advancements and making dis-
tribution among the heirs and parties in interest. In all cases
in which such auditor has not been or may not be appointed, it
shall be the duty of the court to make a calculation exhibiting the
amounts due the respective parties in interest, and to direct the
clerk of the court to record said calculation upon the partition
docket of the court as a part of the proceedings in each case, for
which services the clerk shall be entitled to a fee of one dollar.

NOTE. This is Section i of the Act of April 12, 1855, P. L. 214, 3 Purd.
3436, modified so as to authorize the court to appoint an auditor, and to
provide that the court, instead of the clerk, shall make the calculation and
that it shall be recorded in the partition docket.

58. SATISFACTION, OF RECORD.

(&) i. Where a recognizance has been or shall hereafter be
taken in any orphans' court, in any partition proceeding, as
hereinbefore provided for, and the same, or any part thereof,
shall be satisfied or paid to the person or persons interested
therein, his, her or their agent or attorneys, any such person so
having received satisfaction of the amount coming to him, shall
enter an acknowledgment thereof upon the record of such court,
which shall be satisfaction and discharge of the said recognizance,
to the amount acknowledged to be paid; and the recognizance
shall cease to be a lien on the real estate of the conusor to a
greater amount than the principal and interest actually remaining
due.

NOTE. This is Section 50 of the Act of March 29, 1832, 3 Purd. 3435,
which was derived from the first clause of Section 6 of the Act of April
14, 1828, P. L. 484, 10 Sm. L. 246, but omitted all reference to bonds as



42 PARTITION ACT SECTIONS 39 (&) i, 2-40

distinguished from recognizances. It is now made applicable to all cases
of recognizance in partition, and not merely to cases of acceptance at the
appraisement

59. REMEDY FOR REFUSING TO SATISFY.

2. If any person who shall have received satisfaction as afore-
said, for his claim or lien secured by such recognizance, shall
neglect or refuse to enter upon the record his acknowledgment
thereof, upon the written request of the owner of the premises,
bound by such recognizance, or of any part thereof, or of his
legal representatives, or other persons interested therein, on
tender of all the costs for entering such acknowledgment, the
orphans' court, on due proof to them made that the entire
amount due to any heir, legatee or distributee, shall have been
fully paid and discharged, may make an order for the relief
of such person from any recognizance or other recorded lien.
Such order, being certified to the proper court where such lien
may appear, shall be entered on the records, and shall inure and
be received as a full satisfaction and discharge of the same.

NOTE. This is Section 51 of the Act of March 29, 1832, 3 Purd. 3436,
which was founded on part of Section 6 of the Act of April 14, 1828,
P. L. 484, 10 Sm. L. 246. The Commissioners' Draft did not contain the
provision as to action by the orphans' court.

The provision for a penalty of fifty dollars and damages to be assessed
by a jury on a trial at law is now omitted, the remedy in the orphans'
court being considered sufficient.

Sections 22 and 23 of the Act of April 26, 1850, P. L. 581, 3 Purd. 3436,
so far as they relate to such recognizances, are recommended for repeal.
Those sections extend to legacies and recognizances the provisions of the
Act of March 31, 1823, P. L. 216, 8 Sm. L. 131, I Purd. 1187, relating to
satisfaction of mortgages. The incorporation of those provisions in the
present draft, by mere reference would raise a question of constitution-
ality and there seems to be no need for doing so.

60. PROTECTION OF INTERESTS OF PERSONS NOT

IN ESSE.

SECTION 40. In all cases arising under this act, where there is
a limitation of an estate or interest in the premises or some part
thereof to a person or persons not in existence, the court shall
have power to appoint a trustee to represent such unborn person
or persons in the proceedings, and shall have power to make such
further or other orders in regard to the property or purpart in
which such person or persons may become interested, or the



PARTITION ACT SECTIONS 40-41 43

proceeds of the sale thereof, or any recognizance given with
respect thereto, as justice and equity may require.

NOTE. This is founded on the second proviso to Section i of the Act
of June 3, 1840, P. L. 593, 3 Purd. 3412, which relates only to "writs of
partition," as construed in Holmes v. Woods, 168 Pa. 530.

Although under the terms of the will creating the trust, there is to be
no distribution until after the death of the wife and testator's last sur-
viving brother or sister, at which time the class of distributees is to be
determined, which is likely to include children not yet born, there is no
necessity for the appointment of a trustee for such unborn children,
as the trustee appointed by the will has full custody and control, as an
active trustee, of both corpus and income of said estate, and is responsible
for a proper distribution when the time arrives. The trustee has power
and authority to represent all cestuis que trustent, whether in esse or not,
in any litigation affecting the trust.

"The third matter of law brought up by the answer, raises the question
of law whether or not the interests of the unborn persons, if any, in the
decedent's real estate involved in this cause are, by said will, effectively
reposed in the respondent as such trustee thereby appointed, who would
thus be lawfully authorized and in duty bound, to represent such interests
in this proceeding or whether such interests of unborn persons, if any,
should be represented and protected in this cause by a trustee to be
appointed by this court for that special purpose under Section 40 of the
Orphans' Court Partition Act of 1917, P. L. 337.

"We are of the opinion that no such special trustee need here be ap-
pointed for the purpose of representing and protecting such interests of
persons not in esse, if any, believing that such interests, if any, have
been by the testator himself duly committed to and effectually reposed in
the respondent as trustee, who is thus duly clothed with absolute power
and authority to represent such unborn persons, if any, and their rights
and interests to, in and concerning the said real estate in this cause."

Dodd's Estate, i Wash. 236.

61. PARTITION DOCKET.

SECTION 41. It shall be the duty of the clerks of the orphans'
courts of the several counties of this commonwealth, and they
are hereby required to enter in a book to be procured for that
purpose, to be called a partition docket, all the proceedings in
partition in every case in their respective courts, from the com-
mencement to the final judgment and decree thereon, which shall
be and the same is hereby made the record of said court; for
which service, such clerks shall be entitled to receive the same
fees as the recorders of deeds receive for recording, to be taxed
and paid as part of the costs of such proceedings.



44 PARTITION ACT SUCTIONS 41-42-43-44

NOTE. This is Section i of the Act of April 4, 1889, P. L. 23, 3 Purd.

^T 1 *}^"

62. PARTITION INDEX.

SECTION 42. It shall be the duty of the clerks of the orphans'
courts of the several counties of this commonwealth, and they
are hereby required, t<3 keep a separate index, to be known as
the partition index, in which shall be entered in alphabetical
order the names of all persons to whom any real estate shall be
allotted or awarded in partition proceedings in said courts, and
the names of all purchasers of real estate in such proceedings.

NOTE. This is a new section, introduced in order to facilitate searches
of title. In the absence of such index, it is often very difficult to trace
back a title to a partition proceeding, since the records of the orphans'
court show the proceeding only under the name of the decedent.

63. APPEALS.

SECTION 43. Any party aggrieved by any definitive decree or
judgment of any orphans' court, or by any order or decree
awarding or refusing to award an inquest, or by an order of
sale, under the provisions of this act, may appeal therefrom to
the proper appellate court as in other cases of appeals from the
orphans' court.

NOTE. This is a new section, intended to permit an appeal from an



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 5 of 71)