Raymond Moore Remick.

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

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AN ACT



Relating to the organization, jurisdiction and procedure of the
orphans' court, the powers and duties of the judges thereof,
and appeals therefrom.



ORPHANS' COURT ACT SECTION i (o), (&) 57

67. ORGANIZATION OF COURT; COURT TO CON-

TINUE TO EXIST IN EACH COUNTY.

SECTION i. (a) Be it enacted by the Senate and House of
Representatives of the Commonwealth of Pennsylvania in Gen-
eral Assembly met, and it is hereby enacted by the authority of
the same, That, In every county of this commonwealth, there
shall continue to exist, as heretofore, a court of record, the name
and style whereof shall be "The Orphans' Court of (the respec-
tive) County."

NOTE. This is founded on Section i of the Act of May 19, 1874, P. L,.
206, 3 Purd. 3360, which provides that such court shall be "organized
and holden, on and after the first Monday of January, 1875." It is
recommended that said section be not repealed.

68. SEPARATE ORPHANS' COURT IN CERTAIN

COUNTIES; JUDGES, THEIR ELECTION, COM-
MISSIONS AND SALARIES.

(&) In the counties of Philadelphia, Allegheny, Luzerne,
Berks, Schuylkill, Westmoreland, Montgomery, Lancaster,
Lackawanna and Fayette, the orphans' court shall be a separate
court of record, which shall consist, in the county of Philadel-
phia, of five judges learned in the law, any one of whom may
hold the said court, and hear and determine all matters and
things therein cognizable, in the county of Allegheny of three
judges learned in the law, any one of whom may hold the said
court and hear and determine all matters and things therein
cognizable, and in the counties of Luzerne, Berks, Schuylkill,
Westmoreland, Montgomery, Lancaster, Lackawanna and Fay-
ette, each, of one judge learned in the law; and the said judges
shall be elected at the same elections, and be commissioned for
the same term and in the same manner as the judges of the courts
of common pleas of the respective counties where separate
orphans' courts are or shall be established. In the counties
where separate orphans' courts are or shall be established, the
annual salaries of said judges shall be the same as are paid to
the judges of the courts of common pleas in the respective
counties where such orphans' courts are or shall be established,
to be paid in the same manner as the salaries of said judges of
the courts of common pleas are now, or may be by law, payable.

NOTE. This is Section 3 of May 19, 1874, P. L. 206, 3 Purd. 3360, as
amended by the Act of June 13, 1883, F. L. 91, further amended so as



58 ORPHANS' COURT ACT SECTION i (i>), (c), (rf) i

to conform to the subsequent legislation establishing separate orphans'
courts in counties other than Philadelphia, Allegheny and Luzerne, by
adding, in two places, after "hold the said court," the words, "and hear
and determine," etc., and by altering the provision that the judges shall
be elected "at the next general election."

Separate orphans' courts have been established as follows : Bterks
County, by Act of June 13, 1883, P. L. 97; Schuylkill County, by 'Act of
March 28, 1895, P. L. 31; Westmoreland County by Act of April n,
1901, P. L. 71; Montgomery County, by Act of May 2, 1901, P. L. 117;
Lancaster County, by Act of July n, 1901, P. L. 655; Lackawanna
County, by Act of July n, 1901, P. L- 657; and Fayette County, by Act
of May 25, 1907, P. L. 260.

The Act of 1874 provided for three judges in Philadelphia County.
The Act of April 28, 1887, P. L. 72, 3 Purd. 3361, provided for an addi-
tional judge, and the Act of March 22, 1907, P. L. 26, 6 Purd. 7034,
provided for a fifth judge.

The Act of 1874 provided for one judge in Allegheny County. The
Act of May 5, 1881, P. L. 12, added another judge, and the Act of July
18, 1901, P. L. 669, added a third.

These acts are not recommended for repeal.

Since the passage of this act separate orphans' courts have been estab-
lished as follows: Cambria County by Act of June 4, 1919, P. L. 372;
Washington County by Act of July 8, 1919, P. L. 736; Delaware County
by Act of April n, 1921, P. L. 121, and Erie County by Act No. 397, May
24, 1921.

69. COMPOSITION OF ORPHANS' COURT WHERE

NOT SEPARATE.

(c) The orphans' court of each county, except in the counties
where separate orphans' courts are or shall be established by law,
shall be composed of the judge or judges, when there are more
than one, of the court of common pleas thereof ; but any one
judge learned in the law shall have power to hold the court, and
hear and determine all matters and things therein cognizable.

NOTE. This is Section 2 of the Act of May 19, 1874, P. L. 206, 3 Purd.
3360, except that, in lines 2 and 3, the words beginning with "where" and
ending with "law" have been substituted for "of Philadelphia, Allegheny
and Luzerne."

The repeal of the Act of April 7, 1876, P. L. 19, 3 Purd. 3725, is rec-
ommended, so far as it relates to the orphans' court, since the above
provisions of the Act of 1874 cover the matter.

70. PRESIDENT JUDGE OF SEPARATE ORPHANS'

COURT; SENIOR JUDGE; DRAWING LOTS.

(d) I. In all counties in which there is or hereafter may be
established a separate orphans' court, the governor shall issue a



ORPHANS' COURT ACT SECTION i (<f) i, 2, 3, 4-2 59

commission as president of said court, to the judge of said court,
who shall be the oldest in commission and continuous service;
and if there shall be two or more judges of any of said courts,
whose commissions are of the same date, and whose term of serv-
ice commenced at the same time, they shall draw lots for a com-
mission as president of said court, and certify the result to the
governor, who shall issue a commission as president of said court
to the judge who shall draw the right to receive the same.

NOTE. This and the following paragraphs of the present clause are
copied from Sections i to 4 of the Act of May 24, 1878, P. L. 131, 3 Purd.
336i.

71. WHERE ONLY ONE JUDGE.

2. In all separate orphans' courts, composed of only one judge,
he shall be styled the president judge of said court, and be com-
missioned as such.

72. RE-ELECTION.

3. When the president judge of any of said courts shall be re-
elected, he shall be again commissioned as, and continue to be the
president judge of said court; and when the said president judge
shall go out of office, the judge of said court who shall be oldest
in commission and continuous service shall be commissioned as,
and be the president judge thereof.

NOTE. In this clause, the word "as" has been inserted after "commis-
sioned" in two places.

73. WHERE TWO OR MORE JUDGES ARE ELECTED

AT SAME ELECTION.

4. Whenever, at any election, two or more judges of any of
said courts are elected, who shall not have been commissioned
and served as judges of said court immediately before the com-
mencement of the terms for which they were elected, they shall
draw lots for priority of commission, and certify the result to the
governor, who shall issue the commissions of said judges on
different days, giving the priority of commission to the judge
drawing the right to receive the same.

NOTE. In this clause, the word "general" is omitted before "election"
in the first line.

74. COURT TO BE A COURT OF RECORD; PRO-

CEEDINGS NOT TO BE COLLATERALLY AT-
TACKED.

SECTION 2. The orphans' court of each county, whether sep-
arate or otherwise, is hereby declared to be a court of record,



60 ORPHANS' COURT ACT SECTIONS 2-3 (a), (fr)

with all the qualities and incidents of a court of record at common
law. Its proceedings and decrees, in all matters within its juris-
diction, shall not be reversed or avoided collaterally in any other
court; but they shall be liable to reversal, modification or alter-
ation on appeal.

NOTE. This is Section 2 of the Act of March 29, 1832, P. L. 190, 3 Purd.
3360, altered by inserting in lines i and 2 the words "of each county,
whether separate or otherwise," and by omitting, at the end, the words
"to the supreme court, as hereinafter directed."

75. CALLING IN JUDGES OF OTHER DISTRICTS

WHEN JUDGE OF DISTRICT IS UNABLE TO
SIT; POWER TO CALL IN OTHER JUDGE.

SECTION 3. (a) Whenever, by reason of sickness, absence, in-
terest or other cause, a judge of any separate orphans' court,
or a judge of the court of common pleas in a judicial district
having no separate orphans' court, may be unable to sit in any
matter depending in the orphans' court of such district, and there
shall be no other judge of the orphans' court or of the court of
common pleas of such district available for the purpose, it shall
be lawful for said judge to call upon any judge of a separate
orphans' court of any other judicial district of this common-
wealth, or any judge of the court of common pleas of any other
judicial district having no separate orphans' court, to preside in
and determine such matter, with the same force and effect as he,
the regular commissioned judge of such district, if presiding,
might do.

NOTE. This is Section i of the Act of March 4, 1875, P. L. 5, 3 Purd.
3372, modified so as to apply in all cases thus meeting the decision in
Livingston's Appeal, 88 Pa. 209, that the Act of 1875 applied only to
counties having separate orphans' courts and that a judge of such a court
could not be called in to sit in a county having no separate orphans' court,
where the orphans' court must be held by a common pleas judge.

The new section is intended to supply not only the Act of 1875, but also,
so far as the orphans' court is concerned, Section 8 of the Act of April
4, 1843, P- L. 133, 3 Purd. 3371, extending to the orphans' court and the
criminal courts the provisions of Sections 37-41 of the Act of April 14,
1834, P. L. 349, i Purd. 632.

76. COMPENSATION AND CARFARE.

(b) Such judge of another judicial dictrict called in as pro-
vided by clause (a) of this section shall be entitled to receive



ORPHANS' COURT ACT SECTIONS 3 (&)-4 (a), (6), (c) 6l

as compensation for so presiding, the sum of twenty dollars a
day and carfare, and no more. No payment shall be made for
any day consumed in such service of more than expenses and
carfare, unless said judge, so assigned, actually presides in open
court on such day.

NOTE. This is modeled upon part of Section 5 of the Act of April 27,
191 1, P. L. 101, 5 Purd. 5540, relating to judges of the courts of common
pleas.

77. COMMON PLEAS JUDGES SITTING IN SEP-

ARATE ORPHANS' COURT; POWER TO ACT.

SECTION 4. (a) The judges of the court of common pleas of
any judicial district having a separate orphans' court shall, when
called upon by the president judge of such separate orphans'
court, as hereinafter provided, have power to hear and determine,
when certified according to the provisions of clause (&) of this
section, all matters, causes and things whatsoever, in such separate
orphans' court, so fully and effectually, and to dispose thereof
in the same manner, as may be done by the judges of said separate
orphans' court sitting therein.

NOTE. This and the following clauses of this section are copied, with
slight changes in phraseology, from Sections I to 4 of the Act of April 21,
1915, P. L. 156, 5 Purd. 5541. Section 5 is a general repealer. In clause
(d) the. provision as to mileage and expenses has been added to conform
to the Act of 1913, Section 5 (d}, infra. (See 84 infra.)

The Act of 1915 is recommended for repeal.

78. JUDGES NOT COMPELLED TO ACT.

(b) Nothing in this section shall be construed to make it com-
pulsory upon the judges of said court of common pleas to render
the services aforesaid ; but whenever the proper despatch of busi-
ness requires it, and an arrangement can be made with a judge
of such court of common pleas for such service, the president
judge of the separate orphans' court of the said district may
certify all matters to be heard and determined by such judge of
the court of common pleas, specially presiding as aforesaid.

79. WHEN PRESIDENT JUDGE ABSENT OR DIS-

ABLED OTHER JUDGE MAY CALL IN COMMON
PLEAS JUDGE.

(c) In judicial districts having more than one judge of the sep-
arate orphans' court, whenever the president judge of such



62 ORPHANS' COURT ACT SECTIONS 4 (O, (<0-5 (o)

court shall be absent from the district or disabled by sickness,
and occasion shall occur, it shall be competent for the judge next
oldest in commission, being then in the district and able to act, to
arrange for the services herein provided for, and to make the nec-
essary certificates in like manner and to the same intent, effect,
and purpose as the same could be done by the said president judge.
NOTE. The words "and able to act" have been inserted.

80. MILEAGE AND EXPENSES.

(rf) No additional compensation shall be received by said
judges of the court of common pleas for any service rendered
in pursuance of this section ; but they shall be entitled to be paid
such mileage and other actual expenses as are provided by law
for judges of this commonwealth when holding court outside of
the district for which they shall have been commissioned.

81. ORPHANS' COURT JUDGES SITTING IN COURTS

OF COMMON PLEAS OR CRIMINAL COURTS;

POWER TO ACT.



SECTION 5. (a) In addition to the powers now possessed and
exercised by the judges of the separate orphans' courts of this
commonwealth, said judges shall, when called upon by the pres-
ident judge of the court of common pleas of the same judicial
district, as hereinafter provided, have power to hear and deter-
mine, when certified according to the provisions of clause (&) of
this section, all pleas, actions, causes, civil or criminal issues, and
all issues and other matters in equity, in the court of common
pleas, court of oyer and terminer and general jail delivery,
and court of quarter sessions of the peace, for said judicial
district, so fully and effectually, and to dispose thereof in the
same manner, as may be done by the judges of the court of com-
mon pleas sitting in said courts.

NOTE. This and the following clauses of the present section are copied,
with slight changes in phraseology, from Sections I to 4 of the Act of
July 19, 1913, P. L. 844, 6 Purd. 7036. Section 5 is a general repealer.

The provisions of the Act of April 18, 1905, P. L. 208, 6 Purd. 7035,
which related only to equity proceedings, are incorporated by the insertion
of the words "and all issues and other matters in equity."

Both acts are recommended for repeal.



ORPHANS' COURT ACT SECTIONS 5 (&), (O, 00-6 63

82. JUDGES NOT COMPELLED TO ACT.

(b) Nothing in this section shall be construed to make it com-
pulsory upon the judges of said orphans' court to render the
services aforesaid; but whenever the proper despatch of busi-
ness requires it, and an arrangement can be made with a judge
of such orphans' court for such service, the president judge of
the court of common pleas of the same judicial district may
certify all matters or issues to be heard and determined by such
orphans' court judge, specially presiding as aforesaid.

83. WHEN PRESIDENT JUDGE ABSENT OR DIS-

ABLED OTHER JUDGES MAY CALL IN OR-
PHANS' COURT JUDGE.

(c) In districts having one or more additional law judges,
whenever the president judge shall be absent from the district, or
disabled by sickness, and occassion shall occur, it shall be com-
petent for the additional law judge, and in districts having more
than one additional law judge, for the one oldest in commission,
being then in the district and able to act, to arrange for the serv-
ice herein provided for, and to make the necessary certificates
in like manner, and to the same intent, effect and purpose, as the
same could be done by the said president judge.

NOTE. In this clause, "shall" has been substituted for "should" in line
4, and "one" for "an" before "additional law judge" in line 5. The words
"and able to act" have been inserted.

84. MILEAGE AND EXPENSES.

(d) No additional compensation shall be received by the said
orphans' court judges for any service rendered in pursuance of
this section; but they shall be entitled to be paid such mileage
and other actual expenses as are provided by law for judges of
this commonwealth when holding court outside of the district for
which they shall have been commissioned.

85. SEAL OF COURT.

SECTION 6. Every orphans' court shall have a seal for the
use of the said court, having engraved thereon the same device
as is engraved on the great seal of the State, together with the
name of the respective court; and such seal may be renewed,



64 ORPHANS' COURT ACT SECTIONS 6-7-8 (a)

under the direction of such court, as often as occasion shall re-
quire.

NOTE. This is a combination of Section 55 of the Act of April 14, 1834,
P. L. 351, 3 Purd. 3361, which, however, provides that the seal shall have
engraved upon it "such words and devices as are inscribed on the seal now
in use in the respective court," and Section I of the Act of March 6,
1854, P. L. 156, 3 Purd. 3338. Both sections are recommended for repeal,
the latter only so far as it relates to the orphans' court

86. COURT ROOMS.

SECTION 7. That commissioners of the several counties where-
in separate orphans' courts are now or hereafter shall be estab-
lished shall provide proper and suitable apartments, as may be
required by said courts, in which the business of said courts shall
be held and conducted, and in which the records thereof shall be
safely and securely kept.

NOTE. This is Section 10 of the Act of May 19, 1874, P. L. 207, 3 Purd.
3362, modified by inserting the words, "as may be required by said courts."

87. CLERK OF COURT, REGISTER OF WILLS TO

BE CLERK IN COUNTIES HAVING SEPARATE
ORPHANS' COURT; OTHER COUNTIES.

SECTION 8 (a) The register of wills of each county in which a
separate orphans' court is now or hereafter shall be established
shall be clerk of such court and subject to its directions in all
matters pertaining to his office ; and he may appoint an assistant
clerk or clerks, but only with the consent and approval of said
court.

In each county having no separate orphans' court, a clerk of
the orphans' court shall be elected and commissioned in accord-
ance with the existing law.

NOTE. This is copied from the first part of the Act of March 31, 1915,
P. L. 41, 6 Purd. 7034, relating to counties having more than 150,000 inhab-
itants, and the Act of April 25, 1889, P. L,. 52, 3 Purd. 3362, relating to
counties having less than that population.

The other parts of those acts relate to salaries and fees subjects which
have been excluded from the present draft, and it is not recommended
that said acts be repealed.

The last sentence has been added because the Commissioners considered
it inadvisable in the present draft to attempt to deal with the local pro-
visions of the Act of July 2, 1839, P. L. 559, 3 Purd. 3664 and its amend-
ments.



ORPHANS' COURT ACT SECTION 8 (&) i, 2, 3 65

88. DUTIES OF CLERK, CUSTODY OF RECORDS;

DUTIES IN GENERAL.

(&) i. In each county of this commonwealth, the clerk of thf
orphans' court shall have the custody of the records and of the
seal of the respective court, and keep the same at the place of
holding such court, and in the apartments provided by law foi
that purpose ; and he shall faithfully perform, under the direction
of the court, all the duties appertaining to his office.

NOTE. This is founded on Section 56 of the Act of April 14 1834, P-
L. 351, 3 Purd. 3361. The first part of that section, reading, "A clerk shall
be commissioned for each of the said courts," is sufficiently covered by
clause (a) supra.

89. DOCKETS; RECORDS OF ACCOUNTS AND AU-

DITOR'S REPORTS.

2. Said clerks are hereby authorized and required to keep, in
dockets provided for the purpose, a f uU record of all proceedings
of their respective courts, and place upon record, in a fair, legible
hand, or in typewriting, in a book or books to be provided for
that purpose, all accounts of executors, administrators, guardians
and trustees, as well as all reports of auditors appointed by said
courts, respectively, omitting the testimony and documents accom-
panying the same ; the fees for this service to be one-half of the
amount now allowed by law for the recording of deeds.

NOTE. This is Section 18 of the Act of April 25, 1850, P. L. 572, I Purd.
1126, with the addition of the provision as to dockets, and of the words
"trustees" and "or in typewriting."

90. TRANSLATIONS OF PAPERS IN OTHER THAN

ENGLISH LANGUAGE.

3. Any person who shall offer any written or printed instrument
to be filed in any orphans' court or in the office of the clerk of
any orphans' court, which instrument shall be in any other than
the English language, shall furnish at his own expense, to the clerk
of such court, a sworn translation in English of such instrument
thus offered, and the clerk shall attach or cause to be attached
such translation to the original and file both the original and the
translation of record in his office in all cases where filing is now
or hereafter may be required by law, but in all cases where re-
cording is now, or hereafter may be, required, both the original
and the translation in English shall be recorded. Such clerk shall

5



66 ORPHANS' COURT ACT SECTIONS 8 (6) 3, (O-9 (a), (&)

not file or mark filed, record or mark recorded, any written or
printed instrument in violation of this clause, nor shall any paper
filed or recorded in violation of this clause be notice to any per-
son in any legal proceeding whatever, nor be received or con-
sidered in evidence in any proceeding at law or in equity.

NOTE. This is founded on Sections i and 2 of the Act of May 31, 1893,
P. L. 188, 4 Purd. 4052-3, which relates to the register and recorder and
to all courts of record.

91. BILL OF COSTS.

(c) The separate orphans' courts of this commonwealth may
establish a bill of costs to be chargeable to parties and the estates
before them for settlement, for the services of the clerks of said
courts, respectively, in the transaction of business of said courts.
In counties wherein no separate orphans' courts have been or
shall be established, the law as to fees to be charged by clerks of
the orphans' courts shall remain as heretofore.

NOTE. The first sentence is the last part of Section i of the Act of
March 18, 1875, P- L. 29, 3 Purd. 3370, with the substitution of "may" for
"shall."

The second sentence has been added because the Commissioners con-
sidered it inadvisable to disturb the existing system. See 2 Purd. 1630.

92. JURISDICTION.

SECTION 9. The jurisdiction of the several orphans' courts,
whether separate or otherwise, shall extend to and embrace:

93. GUARDIANS.

(a) The appointment, control, removal and discharge of the
guardians of minors, and the settlement of their accounts :

NOTE. This and most of the following clauses of this section are
founded upon Section 19 of the Act of June 16, 1836, P. L. 792, 3 Purd.
3362-9. The changes and additions are noted under the particular clauses.

Section 19 of the Act of 1836 supplied Section 4 of the Act of March
29, 1832, P. L. 190, and enlarged the jurisdiction there given.

In the present clause, the provisions of Section 6 of the Act of May 19,
1874, P. L. 207, 3 Purd. 3369, have been incorporated, omitting, however,
the reference to "registers' courts."

94. TRUSTEES.

(b) The appointment of trustees for any persons interested in
the real or personal estate of any decedent, and the control, re-



ORPHANS' COURT ACT SECTION 9 (&), (c), (d), (<?), (/), (0) 67

moval, discharge and settlement of the accounts of trustees so
appointed and of testamentry trustees, whether the testamentary
trustees be appointed nominatim or virtute officii :

NOTE. This clause is new, but is declaratory of the existing law.

95. TRUSTEES DURANTE ABSENTIA.

(c) The appointment of trustees for absent persons, the con-
trol, removal and discharge of trustees so appointed, and the
settlement of their accounts :

NOTE. This clause is new, and is introduced to cover the jurisdiction
under the Act of April n, 1879, P. L. 21, 4 Purd. 4904, which is the basis
of Section 60 of the Fiduciaries Act. (See 617 infra.)

96. EXECUTORS AND ADMINISTRATORS.

(rf) The control, removal and discharge of executors and ad-
ministrators, deriving their authority from the register of the
respective county, and the settlement of their accounts :

97. DISTRIBUTION OF DECEDENTS' ESTATES.

(e) The distribution of the assets and surplusage of the estates
of decedents among creditors and others interested :

98. SALE OF REAL ESTATE FOR PAYMENTS OF



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