Raymond Moore Remick.

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

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brought up in the Roman Catholic faith, and consented to their being
baptized in that church.

The court held that under the Fiduciaries Act, only when both parents
were of the same religious persuasion was it mandatory upon it to appoint
a person of the same faith. In this case as both parents were of different
faiths, it was for the court to do that which will be for the best
interest of the minors, and as, the petitioner for the appointment
of the maternal uncle states that the paternal grandfather is in
every way qualified to bring the children up properly, and he further
having consented to their being brought up in the Roman Catholic faith,
there would be no reason why he should not be appointed, he being the
nearest next of kin, and the minors' father in his lifetime having en-
trusted the care of two of the minors to him, therefore the paternal grand-
father was appointed guardian. Butcher's Est., 35 Montg. 162; affirmed
in 266 Pa. 479, 109 Atl. 683.

601. EXECUTOR, ADMINISTRATOR OR TRUSTEE

NOT TO BE APPOINTED GUARDIAN.

(c) No executor, administrator or trustee shall be admitted or
appointed, by the orphans' court, guardian of a minor having an
interest in the estate under the care of such fiduciary : Provided,
That nothing herein contained shall be construed to extend to the
case of a testamentary guardian.

NOTE. This is Section 6 of the Act of March 29, 1832, i Purd. 1084,
which was new in that act. The only change is to add "or trustee."

602. PARENT NOT TO BE APPOINTED GUARDIAN;

WHERE ESTATE IS $100 OR LESS, AWARD
MAY BE MADE TO NATURAL GUARDIAN
OR PERSON MAINTAINING MINOR.

(d) The orphans' court shall not appoint the father or the
mother of a minor as guardian of the estate of said minor:
Provided, That nothing herein contained shall be construed to
extend to the case of a testamentary guardian : And provided
further, That where the estate of the minor shall be of the value
of one hundred dollars or less, the court may, in its discretion,



462 FIDUCIARIES ACT SECTION 59 (<f)

authorize payment or delivery thereof to the natural guardian of
the minor or the person by whom the minor is maintained, with-
out the appointment of a guardian by the court or the entry of
security.

NOTE. This is a new section, framed in part in accordance with the
existing practice in many counties. The Commissioners regard it as
always inadvisable and frequently dangerous to appoint the parent of a
minor to be the guardian of its estate. Parents are too often tempted to
regard the estate as virtually their own and use it for purposes which
could not be approved by the court; or even when actuated by proper
motives will not keep the accurate accounts of the estate which the minor
on coming of age is entitled to receive. The consequence may be either
an unfortunate and distressing litigation, or perhaps the condonation of
an injustice.

When the amount is very small, it seems unnecessary to subject the
fund to the expense of a guardianship.

Under the Fiduciaries Act, the orphans' court is vested with a discre-
tion in minors' estates of $100 or less, so that it may decree the payment
of the same to their natural guardians without security.

"The foregoing is a new provision and vests the court with a dis-
cretion in minors' estates of this amount. In view of the fact that the
mother in this case, who is the natural guardian, is keeping her children
together and is maintaining them and seems to be an entirely fit person, it
is a proper exercise of the discretion conferred to direct the legacies to be
paid to her, the same to be expended by her for the benefit of the minors
as in her judgment may ' seem to their best interests." MILLER, J., in
Dailey's Est., 27 Dist. 464; 65 P. L. J. 796; 31 York 132.

While Section 59, clause (rf), of the Fiduciaries Act of June 7, 1917,
P. L. 447, forbids the appointment of a father as legal guardian of his
child, it permits the court to decree that a legacy of $100 or less be-
queathed to a minor may be paid to his father as natural guardian.

Parents who have received such legacies cannot spend them at will
and in the exercise of their own judgment, but are as much legally
responsible for their conservation and accretions, and accountable to the
cestuis que trustent, as a legally appointed guardian under bond.

"The section of the act under which this application is made is new and
evidences a radical departure from the pre-existing law and practice rela-
tive to the administration of the estates of minors. Other than the
exercise of the discretion therein granted to the court, the act is silent
as to the actual duties, responsibilities and liability of the trustee without
security, so designated in the administration of the trust thus created and
authorizes a decree for the payment of moneys belonging to minors to
persons whom the opening words of Section 59 of the act prohibits the
appointment of as legal guardian by the orphans' court. This prohibition
is but legislative confirmation of the uniform opinions of the Pennsyl-
vania judiciary as to the impropriety of such appointments and heretofore
adopted as a rule of practice for the best of reasons, so well understood



FIDUCIARIES ACT SECTION 59 (d) 463

as to render it unnecessary to here repeat or cite authorities. We are
fain to believe that evils thus guarded against will in some cases follow
the practice authorized by the Act of 1917, and that it would have been
wiser legislation to have designated some responsible trust company or
bank institution as custodian of such funds, thereby effecting the evident
commendable purpose of the act, viz., to save expense and simplify ad-
ministration, while at the same time avoiding the risks attaching to a
trust reposed in those bearing parental relation to the cestuis que trustent.

"The case of Daley's Estate (should be Bailey's Estate, supra), 27
Dist. R. 464, in the Orphans' Court of Allegheny County, appears to be
the only reported similar application under the act, and the closing
language of the opinion and order of MILLER, J., granting the prayer of
the petition, leads us to the expression of a different conclusion as to the
status of the parent receiving the fund than his language would imply.

"This being the first application in this jurisdiction, we are led to state
some of our views for the guidance of the trustees created by this order,
until in some adverse proceeding we may, on full discussion be convinced
otherwise.

"The parent and 'natural guardian,' upon receiving the legacies in ques-
tion, holds the same relation thereto as attaches to such relative receiving
similar funds in the absence of such an order.

"Quoting from Evans' Estate, I Dist. R. 453, n Pa. C. C. Reps. 324:
'He (the father) was his natural guardian; guardian by nature, so that

if an estate be left to an infant, as to him, the father is by common

law the guardian and must account to his child for the profits thereof :
Co. Litt., 88.'

"In the last case quoted from, a citation prayed for against such common
law guardian was refused by the orphans' court, holding that the remedy
was by an action at law.

"The question whether the receipt of the legacies under this order,
impliedly from the provisions of the statutes of 1917, changes the character
of the recipient from that of common law guardian to that of a legal
guardian with security, and changes the forum of jurisdiction over such
and the account from the common law courts to the orphans' court, we
will not now decide. Our only purpose in this discussion is to make clear
the point that parents who have received the funds in question from
petitioning executors cannot expend them at will and in the exercise of
their own judgment, but are as much legally responsible for their con-
servation and accretions of interest thereto, and accountable for the
same to the cestuis que trustent, as a legally appointed guardian with
bond of the orphans' court.

"Our conclusions are sustained not only by the common law doctrine
above referred to, but also by the language and spirit of subdivision (<f)
of Section 59 of the Act of 1917.

"Although the petition is to be by the executor of the estate from which
the legacies are payable, and primarily for his relief and discharge from
liability on such payment, manifestly the interest of the legatees and their
property are also intended to be conserved, and we cannot conceive that
the recipient shall have unlimited and uncontrolled use and expenditure



464 FIDUCIARIES ACT SECTION 59 (<*), (O. (/)

of the money when such are prohibited of similar sums received by any
other trustee.

"We are aware that it is unusual for a court to express an opinion
on an abstract proposition, but in view of the ambiguity of the act, not
so much from what is expressed therein, but more from what is omitted,
we have assumed to state our views as justified by way of proper judiciary
suggestion to those becoming custodians of the funds in question." SMITH,
P. J., in Storer's Est, 28 Dist. 215.

603. APPOINTMENT OF GUARDIANS OF ESTATES

OF MINORS RESIDING OUT OF THE COM-
MONWEALTH.

(e) The orphans' court of each county shall have power to
appoint guardians of the estates of minors residing out of the
commonwealth, in all cases where such minors are possessed of
estates lying within the jurisdiction of said court, upon the peti-
tion of the minors, if over the age of fourteen, and if it be
reasonably practicable for such minors to present their own
petitions, and in other cases on the petitions of persons qualified
to act as their next friends, without requiring the said minors
to appear in court to make choice of such guardians.

NOTE. This is Section 44 of the Act of April 25, 1850, P. L. 576, I
Purd. 1084, altered by substituting the words beginning "if over the age
of fourteen" and ending "next friends" for "or any of their relatives or
friends or any person interested in such estates."

604. APPOINTMENT OF GUARDIANS FOR MINORS

IN SERVICE OF UNITED STATES, OR
WHOSE APPEARANCE IS PHYSICALLY IM-
POSSIBLE OR UNNECESSARILY EXPEN-
SIVE.

(/) The orphans' court of each county shall have power to
appoint guardians of the persons and estates of minors, residents
of such county, who may be absent in the service of the United
States or who may be physically unable to appear and choose for
themselves, or who may be so distant from the seat of justice of
the county as to make it unnecessarily expensive for them to
appear, upon the petition of the minors, if over the age of four-
teen, and if it be reasonably practicable for such minors to present
their own petitions, and in other cases on the petitions of persons
qualified to act as their next friends, without requiring the said
minors to appear in court to make choice of such guardians:
Provided, That when the appointment sha.1* be made on petition



FIDUCIARIES ACT SECTION 59 (/), (g) 465

of a next friend, the minor, if of the age of fourteen or on at-
taining that age, may subsequently appear and choose his guard-
ian.

NOTE. This is Section i of the Act of August 25, 1864, P. L. 1029, i
Purd. 1085, altered so as to conform to the provisions of the last preceding
clause, and by inserting, in the third line, "residents of such county."

605. BONDS OF GUARDIAN'S.

(g) The orphans' court having jurisdiction, whenever they
may deem it proper, may require a bond, with good and sufficient
corporate security, or with two good and sufficient individual
sureties, from every guardian of a minor, whether admitted or
appointed by the court, or appointed by will, or, in the case of a
corporation duly authorized by its charter or by law to act as
guardian, said court may permit such corporation to give its
own bond without surety. Guardians' bonds shall be filed in the
office of the clerk of the court, and be considered in trust for all
persons interested ; the bonds shall be taken to the commonwealth
in such penalties as the court shall direct and the condition shall
be in the following form:

The condition of this obligation is such, that if the above-
bounden A. B., guardian of C. D., a minor child of E. F., (late
of , deceased,) shall, at least once

in every three years, and at any other time when required by the
orphans' court for the county of , render

a just and true account of the management of the property and
estate of the said minor, under his care, and shall also deliver
up the said property, agreeably to the order and decree of the
said court, or the directions of law, and shall, in all respects,
faithfully perform the duties of guardian of the said C. D., then
the above obligation shall be void, otherwise it shall be and remain
in full force and virtue.

Provided, That nothing in this act contained shall be construed
to deprive a minor of any action or remedy to which he may be
entitled at the common law, against his guardian for any cause
whatever.

NOTE. This is Section 8 of the Act of March 29, 1832, i Purd, 1086,
altered by substituting new provisions as to the sureties in place of the
old phrase "with good and sufficient security."

Section 8 of the Act of 1832 was founded on Section i of the Act of
March 30, 1821, P. L. 153.

30



466 FIDUCIARIES ACT SECTION 59(0), (h), (i), ,(;') i

It is noted in Purdon that in Perry County the bonds are required by
the Act of March 27, 1869, P. L. 488, to be recorded, and such record
is evidence.

See form 21.

An administrator of a deceased minor has a standing to cite the minor's
guardian to file an account where it appears that the latter never had filed
an account, and was under an inadequate bond.

Cook's Est., 48 Pa. C. C. 599 (s. c. sub nom. Kerr's Petition), 29
Dist. 909.

606. INVENTORY TO BE FILED BY GUARDIAN.

(h) Every guardian shall, within thirty days after any prop-
erty of his ward shall have come into his hands or possession, or
into the hands and possession of any person for him, file in the
office of the clerk of the court a just and true inventory and
statement, on oath or affirmation, of all such property or estate.

NOTE. This is Section 9 of the Act of 1832, i Purd. 1086, which was
new in that act. The word "such" is omitted before "guardian" in the
first line.

See form 20.

607. ALLOWANCE FOR SUPPORT AND EDUCATION

OF MINOR.

(i) When any one shall die, leaving an infant child or children,
without having made an adequate provision for the support and
education of such child or children, during their minority, the or-
phans' court may direct a suitable periodical allowance, out of
the minor's estate, for the support and education of such minor,
according to the circumstances of each case; which order may,
from time to time, be varied by the court, according to the age
of the minor and the circumstances of the case.

NOTE. This is Section 13 of the Act of 1832, i Purd. 1088, which was
new in that act.

See forms 96-100.

608. ACCOUNTS OF GUARDIANS, TRIENNIAL AC-

COUNTS.

(/) i. Every guardian, whether required by the court to give
security or not, shall, at least once in every three years, and at
any other time when so required by the court, render an account



FIDUCIARIES ACT SECTION 59 (/) i, 2, 3, 4, 5 467

of the management of the minor's property under his care, which
accounts shall be filed in the office of the clerk of the orphans'
court, for the information of the court and the inspection of all
parties concerned.

An administrator of a deceased minor has a standing to cite the minor's
guardian to file an account where it appears that the latter never had filed
an account, and was under an inadequate bond.

Cook's Est, 48 Pa. C. C. 599 (s. c. sub nom. Kerr's Petition), 29
Dist. 909.

609. GUARDIAN OR NEXT FRIEND MAY PETITION

TO HAVE ACCOUNT AUDITED.

2. After the filing of such account or accounts, such guardian,
or any person qualified to act as next friend of the minor, may
petition the orphans' court of the respective county for leave
to have said account or accounts examined or audited and con-
firmed, with the same force and effect as executors', adminis-
trators' and trustees' accounts are examined or audited and con-
firmed.

610. CONTENTS OF PETITION.

3. Such petition shall set forth the reason why such account
or accounts should be examined or audited and confirmed, and
shall contain full information as to who may be next of kin or
nearest relative of age to such minor or minors, and all others
interested in the minor's estate, together with their addresses il
it is possible to give them.

611. NOTICE OF FILING OF ACCOUNT AND PETI-

TION.

4. The court may thereupon direct to whom, and what, notice,
if any, shall be given to such next of kin, or nearest relative of
age, or the parties interested in said minor's estate, including the
minor or minors if fourteen years of age or over, of the filing
of said account or accounts and presentation of said petition.

612. AUDIT OF ACCOUNT; APPOINTMENT OF

GUARDIAN AD LITEM; CONFIRMATION.

5. After the filing of due proof of the services of said notice,
if any be required by the court, the court may, if it be satisfied
that any reasonable necessity exists for the examination or audit



468 FIDUCIARIES ACT SECTION 59 0') 5, 6, 7, 8

and confirmation of such account or accounts, asked by said
petition, thereupon appoint some suitable person to act as guard-
ian ad litem for the minor or minors interested in said account
or accounts; and the same shall be thoroughly examined by said
guardian ad litem, who shall make report to the court of. the
result of his examination; or the court may examine and audit
said account itself ; and, after said examination or audit is com-
pleted, a final decree of confirmation as to the matters contained
in said account or accounts, and said report or reports, and said
audit or audits, shall be made by the court, which decree of
confirmation shall be final and conclusive as to matters contained
in said accounts, reports or audits and decrees, with the same
force and effect as such decrees now have in respect to the
accounts of executors, administrators and trustees and the audits
thereof.

613. PAYMENT OF COSTS.

6. The costs of said audits or examinations, including a fee
for said guardian ad litem to be fixed by the court, shall be
allowed as part of the administration expenses, and be paid by
such guardians out of the property of the ward in their hands
and allowed as credits in said decrees or the said costs shall, in
the discretion of the court, be paid by the said guardians per-
sonally.

614. APPEALS AND REHEARINGS.

7. Appeals from such decrees, and rehearings of such accounts
shall be allowed, in the same manner and form, and with the
same force and effect, as are allowed in the similar cases of
other fiduciaries.

615. FINAL ACCOUNTS.

8. Every such guardian, unless previously discharged or re-
moved, shall, on the arrival of his ward at full age, file in the
register's office a full and complete account of his management
of the minor's property under his care, including all the matters
embraced in each partial account, except where an examination
or audit, and final decree of confirmation, has taken place, as
hereinbefore provided, in which case said final account shall
include only such matter as were not included in such former
accounts and decrees aforesaid. And the decree of the orphans'



FIDUCIARIES ACT SECTION 59 (/) 8, (fc) 469

court upon such final account shall, like other decrees of the
court, be conclusive upon all parties, unless reversed, modified or
altered on appeal.

NOTE. This is Section 10 of the Act of 1832, i Purd. 1086, as amended
by the Act of June 9, 1911, P. L. 744, 5 Purd. 5887, now divided into
numbered paragraphs because of its excessive length. The first para-
graph was copied from the first clause of Section 3 of the Act of March
30, 1821, P. L. 153. The last was new in the Act of 1832. The others
were added by the amendment of 1911.

The only changes now made are to strike out the word "such," before
"guardian" in the first line of paragraph i, so as to make the clause
apply to testamentary as well as statutory guardians, to substitute the
word "file" for "settle," "partial account" for "partial settlement,"
"final account" for "final accounts," in the last paragraph; and "rehear-
ings of such accounts" for "rehearings of such decrees," and "similar
cases of other fiduciaries," for "cases of decrees made in executors',
administrators', and trustees' accounts," in paragraph 7. In paragraph 6,
the words beginning "or the said costs," are new.

"The account here required is of the guardian's management of such
property of his ward as has come under his case. Where no property
of the ward has come into his possession the guardian manifestly can be
under no necessity of filing an account. With nothing to account for,
there could be no purpose in accounting." SCHAEFFER, P. J., in Devere's
Est., 13 Berks 242.

An administrator of a deceased minor has a standing to cite the minor's
guardian to file an account where it appears that the latter never had filed
an account, and was under an inadequate bond. Cook's Est., 48 Pa. C. C.
509 (s. c. sub nom. Kerr's Petition), 29 Dist. 909.

616. NOTICE TO GUARDIAN OF PROCEEDINGS AF-
FECTING INTERESTS OF MINOR; APPOINT-
MENT OF GUARDIANS AD LITEM.

() In all cases in which proceedings may be had in any or-
phans' court, affecting the interest of a minor, notice of such
proceedings shall be given to the guardian of such minor in the
same manner as is provided by law in the case of persons of full
age. If such minor has no guardian appointed by an orphans'
court of this commonwealth, or by will probated within this
commonwealth, the orphans' court in which such proceedings
shall be pending shall appoint a guardian ad litem for such minor
in the same manner as is provided by this act in the case of
ordinary applications for the appointment of guardians. If such
minor or his next friend shall fail or refuse to apply for the
appointment of a guardian ad litem, as aforesaid, then such



470 FIDUCIARIES ACT SECTIONS 59 (Jb)-6o (a)

guardian shall be appointed by said court on petition filed by any
person interested in such proceedings. Notice shall be served,
as aforesaid, upon such guardian ad litem whenever notice shall
be requisite.

NOTE. This is founded on Section 53 of the Act of March 29, $832,
3 Purd. 3372, which was new in that act.

After "minor" in the fourth line, the following words are omitted:
"if such guardian be resident within the county, or within forty miles of
the seat of justice of the county," and in the fifth line, the word
"resident" is omitted before "persons." After "will" in the seventh line,
the words "probated within this commonwealth" have been added.

The subsequent part of the section has been remodeled so as to conform
to the provisions for appointment of guardians in general, with a method
for appointment in case the minor and his next friend fail to act.

See forms 57, 101, 102.

"The orphans' court has no authority to award compensation to a
guardian ad litem out of an estate in which his wards have no interest."
Per Mr. Justice SCHAEFFER, in Boyd's Est., 270 Pa. 50.

617. TRUSTEES DURANTE ABSENTIA, PETITION
AND APPOINTMENT.

SECTION 60. (a) Whenever it shall be made known to the or-
phans' court of the county in which shall be found all or the
greater portion of the estate, within this commonwealth, of any
person who has been a resident either of this commonwealth or
of any other state, territory, or possession of the United States,
or of any foreign country, and who has absented himself from
his usual place of abode, by the petition, verified by affidavit, of
the husband, wife or next of kin of such person, or other persons
interested, in the order named, such petition being supported by
the affidavits of at least two disinterested residents of the city,
borough, township, or other territorial subdivision where such
person was last known to reside, that such person has been absent
from his usual place of abode for the space of one year, that his
whereabouts is not and has not been known for the space of one
year, and he has left an estate, either real or personal, or both,
situated, owing or belonging to him, within this commonwealth
without any person to take charge of or manage the same, it shall
be lawful for said court to appoint one or more trustees who
shall take charge of and manage the estate of such person, so
being absent, and who shall be under the control and direction of
said court.



FIDUCIARIES ACT SECTION 60 (a), (&), (c) i 471



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 50 of 71)