Raymond Moore Remick.

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

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order awarding an inquest, which has been held to be an interlocutory order
from which an appeal does not lie : Wistar's Appeal, 1 15 Pa. 241 ; Gesell's
Appeal, 84 Pa. 238; Christy's Appeal, no Pa. 538, and from an order
of sale in partition, which has also been held to be interlocutory; see
Robinson's Appeal, 62 Pa. 213; Robinson v. Clancy, 69 Pa. 89; Snod-
grass' Appeal, 96 Pa. 420.

Where questions of the right of partition, involving, for example,
adverse claims of title, or the construction of a will, are determined in
awarding the inquest it seems that it should be possible to have this
decision reviewed without waiting until after the allotment of purparts
or confirmation of a sale.

Section 15 of the Act of April 5, 1842, P. L. 236, 2 Purd. 1434, permits
a writ of error to a judgment quod partitio fiat in actions of partition
at law. There seems to be no reason why a similar allowance should not
be made in partition in the orphans' court.

64. SHORT TITLE SECTION.

SECTION 44. This act shall be known and may be cited as the
Orphans' Court Partition Act of 1917.



PARTITION ACT SECTION 45 45

65. REPEALER.

SECTION 45. The following acts and parts of acts of assembly
are repealed as respectively indicated. The repeal of the first
section of an act shall not repeal the enacting clause.

Section 22 of an act entitled "An Act directing the descent of
intestates' real estates, and distribution of their personal estates,
and for other purposes therein mentioned," passed April 19,
J 794> 3 Sm. L,. 143, absolutely.

Section 8 of an act entitled "An Act supplementary to the act
entitled 'An Act directing the descent of intestates' real estates,
and distribution of their personal estates, and for other purposes
therein mentioned,' " passed April 4, 1797, 3 Sm. L,. 296, in so
far as it relates to the orphans' court.

An act entitled "A further supplement to the act entitled 'An
Act directing the descent of intestates' real estates and distribu-
tion of their personal estates, and for other purposes therein
mentioned,' " approved April 2, 1804, P. L. 459, absolutely.

An act entitled "A further supplement to an act, entitled 'An
Act directing the descent of intestates' real estates and distribu-
tion of their personal estates, and for other purposes therein
mentioned,' " approved April i, 1805, P. L. 205, absolutely.

Sections 6, 7 and 8 of an act entitled "An Act supplementary
to the several acts of this commonwealth concerning partitions,
and for other purposes therein mentioned," approved April 7,
1807, P. L. 155, absolutely, and Section 9 of said Act in so far
as it relates to the orphans' court.

Section 2 of an act entitled "An Act to amend certain parts of
an Act, entitled 'An Act supplementary to the several Acts of
this commonwealth, concerning partitions and for other pur-
poses therein mentioned,' " approved March 26, 1808, P. L. 144,
absolutely.

Sections 5 and 6 of an Act entitled "A supplement to the Act,
entitled 'A further supplement to the Act, entitled an Act to alter
the judiciary system of this commonwealth,' passed the eighth
day of April, eighteen hundred and twenty-six," approved
April 14, 1828, P. L. 484, absolutely.

Sections 36 to 46 inclusive, and 48 to 51 inclusive, of an Act
entitled "An Act relating to orphans' courts," approved March
29, 1832, P. L. 190, absolutely.



46 PARTITION ACT SECTION 45

Sections 42, 44, 45 and 46 of an Act entitled "An Act relating
to executors and administrators," approved February 24, 1834,
P. L. 73, absolutely.

Section 2 of an Act entitled "Supplement to the Act passed
the twenty-ninth day of March, Anno Domini, one thousand
eight hundred and thirty-two, entitled 'An Act relating to or-
phans' courts,' " approved April 14, 1835, P. L. 275, absolutely.

Section 4 of an Act entitled "A further supplement to an Act,
entitled an Act relating to orphans' courts, passed the twenty-
ninth day of March, one thousand eight hundred and thirty-two,
and the supplement thereto, passed the fourteenth of April, one
thousand eight hundred and thirty-five, and for other purposes,"
approved April 13, 1840, P. L. 319, absolutely.

Section 8 of an Act entitled "An Act to incorporate the Butler
County Mutual Insurance Company, and for other purposes,"
approved April 24, 1843, P. L. 359, absolutely.

An Act entitled "An Act supplementary to the acts relating to
orphans' courts," approved April 6, 1844, P. L. 214, absolutely.

Section I of an act entitled "A supplement to the Act of As-
sembly, passed the twenty-ninth March, one thousand eight
hundred and thirty-two, relating to the proceedings in the or-
phans' court of this commonwealth, and for other purposes,"
approved April 15, 1845, P. L. 458, absolutely.

Section I of an Act entitled "An Act in relation to partitions,"
approved April 21, 1846, P. L. 426, absolutely.

An Act entitled "An Act relative to the orphans' court," ap-
proved March 13, 1847, P. L. 319, absolutely.

Section 4 of an Act entitled "A supplement to an act relative
to the venders of mineral waters ; and an act relative to the
Washington Coal Company; to sheriffs' sales of real estate; to
the substitution of executors and trustees when plaintiffs; to
partition in the courts of common pleas, and for other pur-
poses," approved April 9, 1849, P. L. 524, except in so far as
it relates to sales made before its date.

Section 10 of an Act entitled "An Act to enable Thomas Hoge
to make a fee-simple title ; to enable the trustees under the wills
of Ephraim Clark and Catharine Yohe, Alex. Calder, admin-
istrator, Joseph B. Baker, guardian, and Nancy, John, and
William Kline to sell certain real estate; relative to a school
house in Elizabeth Township, Lancaster County; to amend the
charter of the Second Jackson Beneficial Society of Philadelphia,



PARTITION ACT SECTION 45 47

and to extend the jurisdiction of the orphans' court," approved
April 10, 1849, P. L. 591, except in so far as it validates partition
proceedings begun before its date.

Section 2 of an Act entitled "An Act relating to the bail of
executrixes; to partition in the orphans' court and common
pleas; to colored convicts in Philadelphia; to the limitation of
actions against corporations ; to actions enforcing the payment
of ground rent ; to trustees of married women ; to appeals from
awards of arbitrators by corporations ; to hawkers and pedlers
in the counties of Butler and Union ; to the payment of costs in
actions by informers in certain cases ; to taxing lands situate in
different townships ; and in relation to fees of county treasurers
of Lycoming, Clinton and Schuylkill; to provide for recording
the accounts of executors, administrators, guardians and auditors'
reports; and to amend and alter existing laws relative to the
administration of justice in this commonwealth," became a law
April 25, 1850, by reason of the Governor's failure to return it
within ten days, P. L. 569, absolutely, and Section 10 of the same
act in so far as it relates to the orphans' court.

Sections 22 and 23 of an Act entitled "An Act to incorporate
the Wyoming County Mutual Insurance Company; relating to
Library Street, in the city of Philadelphia; giving jurisdiction
to the Court of Common Pleas in Tioga County, in a certain
divorce case; and relating to paving in front of the prison in
the county of Philadelphia," approved April 26, 1850, P. L. 577,
in so far as they relate to recognizances in partition.

Section i of an Act entitled "An Act relative to suits in dower
and partition," approved February 20, 1854, P. L. 89, in so far
as it relates to the orphans' court.

An Act entitled "A further supplement to the Act, entitled
'An Act relating to orphans' courts,' passed the twenty-ninth
day of March, one thousand eight hundred and thirty-two," ap-
proved April 12, 1855, P. L. 214, absolutely.

Section 4 of an Act entitled "An Act to amend certain defects
of the law for the more just and safe transmission and secure
enjoyment of real and personal estate," approved April 27, 1855,
P. L. 368, in so far as it relates to the orphans' court.

Sections i and 2 of an Act entitled "A supplement to an Act
relative to suits in dower and partition, passed twentieth Febru-
ary, one thousand eight hundred and fifty-four," approved April
17, 1856, P. L. 386, absolutely.



48 PARTITION ACT SECTION 45

Section 10 of an Act entitled "An Act for the greater certainty
of title and more secure enjoyments of real estate," approved
April 22, 1856, P. L. 532, in so far as it relates to the orphans'
court.

An Act entitled "An Act requiring administrators and trustees,
upon the sale of real estate, after proceedings in partition, to file,
in the register's office of the proper county, an account of their
said administration, or trusteeship," approved April u, 1863,
P. L. 341, absolutely.

An Act entitled "An Act relative to costs in cases of partition,"
approved April 27, 1864, P. L. 641, in so far as it relates to the
orphans' court.

An Act entitled "An Act relating to the committees of the
estates of lunatics and habitual drunkards," approved March 22,
1856, P. L. 31, in so far as it relates to the orphans' court.

An Act entitled "An Act relating to proceedings in partition,"
approved March 27, 1865, P. L. 45, absolutely.

An Act entitled "A supplement to an Act relating to orphans'
courts, approved the twenty-ninth day of March, Anno Domini
one thousand eight hundred and thirty-two," approved January 7,
1867, P. L. 1367, absolutely.

An Act entitled "An Act to extend the jurisdiction of the
orphans' court of York and Fayette Counties," approved Febru-
ary 13, 1867, P. L. 160, absolutely.

An Act entitled "An Act to repeal a portion of an Act, entitled
'An Act relating to proceedings in partition,' approved the
twenty-seventh day of March, Anno Domini one thousand eight
hundred and sixty-five," approved April 28, 1868, P. L. 105,
absolutely.

An Act entitled "A supplement to an Act, entitled 'An Act
relative to the orphans' court,' approved the thirteenth day of
March, one thousand eight hundred and forty-seven, confirming
certain partitions," approved February 26, 1869, P. L. 4, except
in so far as it confirms partitions made before its date.

An Act entitled "A further supplement to an Act, entitled
'An Act relative to suits in dower and partition,' approved the
twentieth day of February, Anno Domini one thousand eight
hundred and fifty-four, and its supplement, approved the seven-
teenth day of April, Anno Domini one thousand eight hundred
and fifty-six," approved March 30, 1869, P r L,. 15, in so far as it
relates to the orphans' court.



PARTITION ACT SECTION 45 49

An Act entitled "A supplement to the Act relating to orphans'
courts, approved the twenty-ninth day of March, Anno Domini
one thousand eight hundred and thirty-two," approved April 13,
1869, P. L. 28, except in so far as it relates to declarations there-
tofore made by married women.

Section 2 of an Act entitled "An Act relating to dowers,"
approved April 20, 1869, P. L. 77, absolutely.

An Act entitled "A further supplement to an Act relating to
orphans' court, approved the twenty-ninth day of March, one
thousand eight hundred and thirty-two, regulating the sale of
real estate by executors, administrators or trustees," approved
May 23, 1871, P. L. 274, absolutely.

An Act entitled "A further supplement to an Act relative to
suits in dower and partition, approved the twentieth day of Febru-
ary, Anno Domini one thousand eight hundred and fifty-four, and
its supplement, approved the thirtieth day of March, Arino
Domini one thousand eight hundred and sixty-nine, construing
said Act and extending jurisdiction of the courts therein," ap-
proved May 14, 1874, P. L. 156, in so far as it relates to the
orphans' court.

An Act entitled "An Act relating to the estates of decedents,"
approved May 14, 1874, P. L. 166, absolutely.

An Act entitled "An Act enlarging the powers of the orphans'
court in regard to fixing the time for the payment of owelty,"
approved May 8, 1876, P. L. 140, absolutely.

An Act entitled "An Act relating to partition of real estate,"
approved May i, 1879, P. L. 40, in so far as it relates to the
orphans' court.

An Act entitled "An Act to provide for the keeping of a
partition docket by the several clerks of the orphans' courts,"
approved April 4, 1889, P. L. 23, absolutely.

An Act entitled "An Act to enlarge the jurisdiction of the
orphans' courts in cases of testacy," approved May 9, 1889,
P. L. 146, absolutely.

An Act entitled "An Act relating to sale of the real estate of
decedents," approved June 12, 1893, P. L. 461, absolutely.

An Act entitled "An Act relating to the partition of real estate,
empowering the courts having jurisdiction to decree and approve
and to approve, ratify and confirm private sales," approved
May 22, 1895, P. L. 114, in so far as it relates to the orphans'
court.



5O PARTITION ACT SECTION 45

An Act entitled "An Act to provide for the liability of tenants
in common in possession to their co-tenants out of possession,"
approved June 24, 1895, P. L. 237, in so far as it relates to the
orphans' court.

An Act entitled "An Act relating to proceedings in partition
and other actions, and for the appointment of committees, ad
litem, therein when any of the defendants are lunatic," approved
June 26, 1895, P. L. 381, in so far as it relates to the orphans 1
court.

An Act entitled "An Act amending an Act, entitled 'An Act
relating to proceedings in partition and other actions, and for
the appointment of committees, ad litem, therein when any of the
defendants are lunatic or persons of weak mind/ approved the
twenty-sixth day of June, one thousand eight hundred and ninety-
five, so as to extend the same to proceedings in the orphans'
court and to enlarge the powers of said committees," approved
June 10, 1901, P. L. 533, in so far as it relates to the orphans'
court.

An Act entitled "An Act relating to partition of real estate,
and the appointment of a trustee to satisfy liens and to invest
the moneys coming into his hands by proceeding in partition,"
approved April 3, 1903, P. L. 151, in so far as it relates to the
orphans' court.

An Act entitled "A supplement to an Act, entitled 'An Act
for the greater certainty of title and more secure enjoyment of
real estate,' approved the twenty-second day of April, one thou-
sand eight hundred and fifty-six; so as to authorize a widow
to accept real estate in partition, or compete in bidding therefor,
and regulating and establishing a mode of payment therefor by
the widow," approved June I, 1907, P. L. 364, in so far as it
relates to the orphans' court.

An Act entitled "An Act to amend an Act, entitled 'A supple-
ment to an Act, entitled "An Act for the greater certainty of
title and more secure enjoyment of real estate," approved twenty-
second day of April, Anno Domini eighteen hundred and fifty-six ;
so as to authorize a widow to accept real estate in partition, or
compete in bidding therefor, and regulating and establishing a
mode of payment therefor by the widow/ approved the first day
of June, Anno Domini nineteen hundred and seven ; by pro-
viding the method by which the dower interests of the widow, and
the principal of the dower fund, should be secured in certain



PARTITION ACT SECTION 45 51

cases," approved May 8, 1909, P. L. 489, in so far as it relates
to the orphans' court.

An Act entitled "An Act to amend the Act, approved the
twelfth day of June, Anno Domini one thousand eight hundred
ninety-three, entitled 'An Act relating to sale of the real estate
of decedents,' " approved May 23, 1913, P. L. 304, absolutely.

An Act entitled "An Act to amend section three of an Act,
approved the fourteenth day of May, Anno Domini one thousand
eight hundred seventy-four, entitled 'A further supplement to
an Act relative to suits in dower and partition, approved the
twentieth day of February, Anno Domini one thousand eight
hundred and fifty-four, and its supplement, approved the thirtieth
day of March, Anno Domini one thousand eight hundred and
sixty -nine, construing said Act and extending jurisdiction of the
courts therein,' by extending the provisions thereof to include
persons having an undivided interest in the land, or in the coal
or timber thereon, when the same has not been entirely severed,
and permitting such persons to compel partition of the entire
tract," approved May 6, 1915, P. L. 269, in so far as it relates
to the orphans' court.

All other Acts of Assembly, or parts thereof, that are in any
way in conflict or inconsistent with this Act, or any part thereof,
are hereby repealed.



THE ORPHANS' COURT ACT

of
June 7, 1917 (P. L. 363)



PRELIMINARY NOTE BY COMMISSION

In revising the statutes relative to the orphans' court the
Commissioners have not found it necessary or considered it
advisable to recommend any changes of serious importance in
its jurisdiction or procedure.

In Section 18 (a), 3 and 5, the writ of fi. fa. issued out of the
orphans' court has been limited to personal property; and in
Section 18 (e), provision has been made for filing in the court of
common pleas transcripts of orders of the orphans' court for
payment of money by others than fiduciaries, and for executions
thereon against real property.

In Section 20 (b) and (d), the powers of the court in con-
nection with the taking and perpetuation of testimony are revised
and enlarged.

In Section 20 (e) I, the Commissioners have inserted a pro-
vision which is understood to conform with the prevailing prac-
tice, according to which on appeals from the Register of Wills
the proceedings shall be de novo unless by agreement the appeal
be heard on the testimony taken before the Register; the court
having the right, however, to require the production of witnesses.

In several sections the court is given enlarged powers with
respect to the service of citations and notices to parties inter-
ested in estates, and to those amenable to the jurisdiction of the
court, including attachments to enforce obedience to its orders.

In general, the method of giving notices to persons interested
has been left to be fixed by general rules of court or special
orders in particular cases, the Commissioners considering that
fixed statutory regulations are often inappropriate.

TABLE OF CONTENTS

1917 Section

Pamphlet Number

Laws Herein

The Orphans' Court Act 363 66

Section i. Organization of court, 366 67

(a) Court to continue to exist in each county, 67

52



ORPHANS' COURT ACT CONTENTS



53



1917 Section

Pamphlet Number

Laws Herein

(b) Separate orphans' courts in certain

counties; judges, their election, com-
missions and salaries, 68

(c) Composition of orphans' court where not

separate, 367 69

(d) President judge of separate orphans'

court, 70

1. Senior judge; drawing lots, 70

2. Where only one judge, 71

3. Re-election, , . . . 72

4. Where two or more judges are

elected at same election, 73

Section 2. Court to be a court of record; proceed-
ings not to be collaterally attacked, 368 74

Section 3. Calling in judges of other districts when

judge of district is unable to sit, 75

(a) Power to call in other judge, 75

(b) Compensation and carfare, 76

Section 4. Common pleas judges sitting in separate

orphans' court, 77

(a) Power to act, 77

(b) Not compelled to act, 369 78

(c) When president judge absent or disabled

other judge may call in common pleas

judge 79

(d) Mileage and expenses, 80

Section 5. Orphans' court judges sitting in courts of

common pleas or criminal courts, 81

(a) Power to act 81

(b) Not compelled to act 82

(c) When president judge absent or disabled

other judge may call in orphans' court

judge, 370 83

(d) Mileage and expenses 84

Section 6. Seal of court, 85

Section 7. Court rooms, 86

Section 8. Clerk of court, 87

(a) Register of wills to be clerk in counties

having separate orphans' court; other

counties, 87

(b) Duties of clerk, 88

1. Custody of records ; duties in

general, 88

2. Dockets ; records of accounts ; and

auditors' reports, 371 89



54



ORPHANS' COURT ACT CONTENTS



1917 Section
Pamphlet Number

Laws Herein
3. Translations of papers in other than

English language, 90

(c) Bill of costs, 91

Section 9. Jurisdiction, 92

(a) Guardians, 93

(b) Trustees, 372 94

(c) Trustees durante absentia, 95

(d) Executors and administrators, 96

(e) Distribution of decedents' estates, 97

(f) Sale of real estate for payment of debts

of decedents, 98

(g) Disposition of title to real estate to render

the same freely alienable, et cetera, 99

(h) Partition, IOO

(i) Specific execution of decedents' contracts

as to real estate, 101

( j ) Legacies, 102

(k) Discharge of liens and charges, 103

(1) Where executors, administrators, guard-
ians or trustees are possessed of or ac-

. countable for estate of decedent 104

(m) Appeals and proceedings certified from

registers of wills, 105

(n) Incidental and additional powers, 106

Section 10. Rules of court, 107

Section 1 1. Time of holding court 373 108

Section 12. Notice to parties, 109

(a) In general 109

(b) Publication, no

Section 13. Attestation of process, et cetera, in

Section 14. Return-days of process, 112

Section 15. Proceedings in vacation, 113

Section 16. Injunctions, 1 14

Section 17. Proceedings to obtain appearance; cita-
tions, procedure in default of appearance 374 115

(a) Awarding citation, 116

(b) By whom to be served, 117

(c) Manner of service, 1 18

(d) Place of service, 119

(e) Service on sureties, 120

(f ) Return of service, 121

(g) Alias and pluries citations, 122

(h) Order of publication on award of alias

or pluries citation, 375 123



ORPHANS' COURT ACT CONTENTS



55



1917 Section

Pamphlet Number
Laws Herein

(i) Default of appearance, 124

1. Power of court to proceed, 124

2. Method of proceeding, 125

Section 18. Proceedings to compel obedience to or-
ders and decrees, 126

(a) Modes of enforcing orders and decrees, 126

1. Attachment of the person, 127

2. Sequestration, 128

3. Fi. fa 129

4. Attachment execution, 130

5. Testatum fi. fa., 376 131

(b) Procedure on attachment or sequestration, 132

1. Direction of writs, 132

2. Issuance of process to other

counties, 133

3. Form of writ of sequestration, 134

4. Sequestration not to abate on death

of party, 377 135

5. Filing copy of writ of sequestration

in prothonotary's office, 136

6. Issuance of attachment or seques-
tration where party absconds, 137

7. Dissolution of attachment or seques-
tration, 138

8. Discharge of persons attached as

for contempt, 139

9. Procedure where party is wasting
trust property, or is about to

abscond, 378 140

10. Enforcement of final order and de-
cree for delivery of trust prop-
erty, 141

11. Order as to final disposition of trust

property, 142

12. Decree in sequestration proceedings
when party does not appear; se-
curity by complainant, 143

13. Reopening of such decree, 379 144

14. Failure of respondent to apply for

reopening, 145

(c) Process to recover fines, forfeitures and
amercements, 146

(d) Direction of, and procedure on, writs

of fi. fa., 147



ORPHANS' COURT ACT CONTENTS TITLE



1917
Pamphlet

Laws

(e) Transcripts to the common pleas of
orders upon parties, other than fiduci-
aries, to pay money,

1. Filing transcripts and effect thereof ;
executions,

2. Satisfaction and discharge of
judgments on transcripts 380

Section 19. Fees of sheriff; mileage; postage,

Section 20. Witnesses and evidence,

(a) Subpoenas,

(b) Methods of taking testimony,

1. In general,

2. Depositions of aged, infirm, and
going witnesses; commissions, and
letters rogatory, 381

3. Oral deposition outside of State,. .

(c) Production of books and papers,

(d) Perpetuation of testimony,

(e) Testimony in proceedings removed from

register of wills, 382

1. What testimony to be basis of de-
cision

2. Testimony taken in orphans' court
to be reduced to writing,

Section 21. Issues to the common pleas,

(a) In general,

(b) In proceedings removed from register of
wills

(c) On distribution of proceeds of sales of

real estate, 383

1. Affidavit,

2. Investment of fund pendente lite,
Section 22. Appeals,

(a) Right of appeal; effect of appeal,....

(b) Disposition of cases on appeal, 384

Section 23. Short title section,

Section 24. Repealer, 384-8



66. TITLE.



Section

Number

Herein



148
148

149
ISO
151
I5i
152
152



153
154
155
156



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 6 of 71)