Raymond Moore Remick.

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

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DEBTS OF DECEDENT.

(/) The sale of real estate of decedents for payment of their
debts.

NOTE. This is an amendment of Clause IV of Section 19 of the Act of
June 16, 1836, 3 Purd. 3366, which reads "The sale of real estates of de-
cedents." Other sales than those for payment of debt are covered by
clauses (g) and (/)

99. DISPOSITION OF TITLE TO REAL ESTATE TO

RENDER THE SAME FREELY ALIENABLE,
ETC.

(g} The disposition of the title to real estate of decedents and
of persons disabled from dealing therewith in order to render the
same freely alienable and productive to the living owners thereof :

NOTE. This is a new clause, introduced to cover the provisions of the
Price Act.



68 ORPHANS' COURT ACT SECTION 9 (*), (*)

100. PARTITION.

(h) The partition of the real estate of decedents among the
parties entitled thereto, the valuation of such real estate, and the
sale thereof for the purpose of distribution :

NOTE. This is an amendment of Clause V of Section 19 of the Act of
1836, which reads : "The partition of the real estates of intestates among
the heirs."

101. SPECIFIC EXECUTION OF DECEDENTS' CON-

TRACTS AS TO REAL ESTATE.

(t) The specific execution of contracts made by decedents to
sell and convey any real estate of which such decedent shall die
seized, and of contracts made by decedents to purchase any real
estate :

NOTE. This is Clause VI of Section 19 of the Act of 1836, amended so
as to include contracts for the purchase of real estate.

A court of equity has no jurisdiction to enforce specific performance
of a contract made by a decedent for the sale of land of which he died
seized.

Jurisdiction in such a case is vested in the orphans' court by Section 9
(*) of the Orphans' Court Act of June 7, 1917, P. L. 372; and Section 18
of the Fiduciaries Act of June 7, 1917, P. L. 486, providing the mode of
procedure by petition to the orphans' court also makes that remedy
exclusive.

The orphans' court formerly had the same exclusive jurisdiction under
the Act of April 28, P. L. 157.

"Passing to the demurrer itself, we note that by Section 9 (t) of the
Orphans' Court Act of June 7, 1917, P. L. 372, jurisdiction of that
court is given to 'embrace'

" 'The specific performance of contracts made by decedents to sell and
convey any real estate of which such decedents shall die seized/ and the
proceedings therefor by petition to said court by the Fiduciaries Act of
1917, Section 18 (o) P. L. 486, 'such court shall have power if the facts
be sufficient in equity, no sufficient cause being shown to the contrary
to decree specific performance of such contract according to the true
intent and meaning thereof.'

"By the jurisdiction of and proceedings in the orphans' court under the
Orphans' Court and Fiduciaries Acts of 1917 cited above, all controverted
questions raised by the bill at bar are judiciable. Therefore, the adequate
remedy thus exists and its legislative exclusiveness of resort precludes
any other because of any claimed greater convenience." Smith, P. J. in
Wykoff v. Manzer, 22 Lack. 308.

Where decedent, in his lifetime, in a written lease gave the petitioner
the privilege of purchasing the leased premises at any time within one
year from the date of the lease, and died during a renewed and extended



ORPHANS' COURT ACT-SEcTioN 9 (), (/), (*), (0 69

period of such agreement to sell, a demurrer to a petition by the said
vendee was overruled the court holding that the Act of 1917 does not
change the remedy provided by the Act of February 24, 1834, (P. L. 70)
as superseded by the Act of April 28, 1899, (P. L. 157). Owen's Estate, 28
Dist. 667.

102. LEGACIES.

(/) Proceedings for the collection or enforcement of payment
or delivery of all legacies, whether pecuniary, specific or other-
wise, and whether charged on real estate or not :

NOTE. This is Clause VII of Section 19 of the Act of 1836, extended
so as to cover specific legacies and legacies charged on land.

This jurisdiction is exclusively in the orphans' court, and the parties
cannot, by agreement^ in the form of a case stated, raise an issue in the
common pleas, confer jurisdiction on the latter court to determine who
is entitled to a legacy under the will of a decedent. Stapler v. Atkinson,
27 Dist. 995.

103. DISCHARGE OF LIENS AND CHARGES.

(&) Proceedings for the discharge of real estate of decedents
from the lien of debts of decedents, and for the discharge of real
and personal estate from the liens of legacies, annuities, dower,
recognizances and other charges.

NOTE. This is a new clause, added to cover branches of jurisdiction
under the new Fiducaries Act.

104. WHERE FIDUCIARIES ARE POSSESSED OF OR

ACCOUNTABLE FOR ESTATE OF DECE-
DENT.

(/) All cases within their respective counties, wherein exec-
utors, administrators, guardians or trustees may be possessed of
or are in any way accountable for any real or personal estate of
a decedent.

NOTE. This is Clause VIII of Section 19 of the Acts of 1836.

Under this section it was held that the orphans' court had jurisdiction
to order the issue of a new certificate of stock, in accordance with Section
17, of the Uniform Stock Transfer Act of May 5, 1911, (P. L. 126) where
the fiduciary, in this case an executor, accountable to that court, showed
title to the stock in the fiduciary estate, the loss or destruction of the
certificate and the impossibility of making a complete distribution of the
assets of the estate for lack of a muniment of title. The court per Hen-
derson, J., said: "What are the controlling principles in this matter?
We have a fiduciary accountable to this court; an asset the title to which



70 ORPHANS' COURT ACT SECTIONS 9 (/), (m), (n)-io

is in the fiducial estate; not even a color of dispute as to the title and
the impossibility of making a complete distribution of the assets of this
estate for lack of a muniment of title; hence we conclude that this court
has jurisdiction." Hagerman's Estate, 47 Pa. C. C. 498; 28 Dist. 384.

The orphans' court, however, has no jurisdiction to determine disputed
questions of title. While it cannot be doubted that under this section, as
under the former Act, the orphans' court has jurisdiction over all of the
property of an estate and can compel the appearance by citation of those
persons who have possession of any part thereof, since such persons are
constructive trustees and accountable therefor and may be compelled to
appear on citation to deliver the trust property to the executor, yet this
principle is applicable only where there is no contest as to the title to the
property. Wyant's Estate, 33 York 208.

105. APPEALS AND PROCEEDINGS CERTIFIED

FROM REGISTERS OF WILLS.

(m) All appeals from the orders or decrees of the register of
wills of their respective counties, and all proceedings removed
from said registers by certification.
NOTE. This clause is declaratory of the existing law.

106. INCIDENTAL AND ADDITIONAL POWERS.

(n) The exercise of all other powers needful to the doing of
anything which is or may be hereafter required or permitted to
be done in said court, whether incidental to the powers herein-
before enumerated or in addition thereto.

And such jurisdiction shall be exercised under the limitations,
and in the manner provided by law.

NOTE. The first sentence of the clause is new, and is intended to re-
move any doubt as to the interpretation of this section when compared
with the language of the other acts relating to the specific branches of the
jurisdiction, and to obviate the necessity of amending this section in case
of any future grant of new jurisdiction to the court.

The second sentence is the conclusion of Section 19 of the Act of 1836.

107. RULES OF COURT.

SECTION 10. The several orphans' courts shall have full power
and authority to make, from time to time, such rules for regulat-
ing the practice thereof, respectively, and for expediting the de-
termination of suits, causes and proceedings therein, as in their
discretion they shall judge necessary or proper for the exercise
of the powers hereby conferred or which may hereafter be con-
ferred : Provided, That such rules shall not be inconsistent with
the constitution and laws of this commonwealth.



ORPHANS' COURT ACT SECTIONS 10-11-12 (a) 71

NOTE. This is a combination of part of Section 58 of the Act of March
29, 1832, P. L. 213, Section 21 of the Act of June 16, 1836, P. L. 792, and
Section 9 of the Act of May 19, 1874, P. L. 207, all of which appear in 3
Purd. 3370.

Under this section it has been held that the orphans' court has author-
ity to make, inter alia, the matter of filing accounts the subject of a rule
of court. Gummey, J., in Hayden's Estate, 28 Dist. 39.

108. TIME OF HOLDING COURT.

SECTION n. The orphans' courts of every county of this
commonwealth shall be held during every term of the court of
common pleas of the respective county and at such other times
and as often as the judges thereof shall think necessary or proper.

NOTE. This is intended to take the place of Section 57 of the Act of
April 14, 1834, P. L. 352, 3 Purd. 3361, which reads as follows:

"The orphans' courts of the city and county of Philadelphia shall be
held during every term of the court of common pleas of the said city
and county, at such times and as often as the judges thereof shall think
necessary or proper; and the orphans' court of every other county of
this commonwealth shall be held during the first week of each term of
the court of common pleas of the respective county, and at such other
times as the judges thereof shall think necessary or proper."

Section 4 of the Act of May 19, 1874, P. L. 207, 3 Purd. 3361, provides
that, in Philadelphia, Allegheny and Luzerne Counties, the orphans'
courts shall be held during every term of the courts of common pleas and
at such other times and as often as the judges shall think necessary or
proper.

109. NOTICE TO PARTIES. IN GENERAL.

SECTION 12. (a) In all cases in which heirs, legatees or distrib-
utees are interested, and in consequence of such interest, notice
shall be required to be given to them or any of them, of any pro-
ceedings in the orphans' court, such notice shall, except in the
case of the accounts of executors or administrators, and in other
cases specially provided for, be given in such manner, personally,
by registered mail, or by publication, as shall appear to the court
to be reasonable and proper, according to general rules adopted
by the court, or special orders made by the court in particular
cases.

NOTE. This is founded on Section 52 of the Act of March 29, 1832,
P. L. 207, 3 Purd. 3372, which, however, contains the following provisions
as to the method of giving notice : "To all persons resident within the
county in which the court has jurisdiction, notice shall be given personally,
or by writing left at their place of abode; to all persons resident without



72 ORPHANS' COURT ACT SECTIONS 12 (a), (6)-i3-i4

the county, personal notice as aforesaid shall be given, if in the opinion
of the court such notice be reasonably practicable ; if otherwise, by pub-
lication in such one or more newspapers as, in the opinion of the court,
will be most likely to meet the eye of those entitled to notice."

The change has been made in pursuance of the general view of the
Commissioners that, except in cases of sales of real estate, the details, as
to the method of giving notice should be regulated by general rule of
court or special order, rather than by inflexible statutory provisions.

Section 53 of the Act of March 29, 1832, 3 Purd. 3372, relating to the
method of giving notices where minors are interested, is embodied, with
changes, in Section 59 (fc) of the new Fiduciaries Act, (see 616 infra).

1 10. PUBLICATION.

(b) The judges of the respective orphans' courts shall have
power, and are hereby authorized to make such rules and regu-
lations as they may deem proper for the publication of advertise-
ments of notices to parties in all cases within their jurisdiction'
Provided, That said court shall have supervision of and regulate
the cost of such publication in all cases, as well by special order
in particular cases, as by general rules.

NOTE. This is part of Section i of the Act of March 18, 1875, P. L. 29,
3 Purd. 3370. The section also contains provisions as to notices of audits,
of sales of real estate, and in partition proceedings, which are covered in
their appropriate places in the proposed new acts, and a provision for the
establishment of a fee bill, which is covered in Section 8 (c) of the present
draft. (See 91 supra.)

in. ATTESTATION OF PROCESS, ETC.

SECTION 13. All process, subpoenas, certificates, copies of rec-
ords and other documents, which shall be issued out of any of
said courts, shall be attested in the name of the president judge
thereof alone.

NOTE. This is Section 5 of the Act of May 24, 1878, P. L. 132, 3 Purd.
3370.

112. RETURN-DAYS OF PROCESS.

SECTION 14. The several orphans' courts shall have power to
fix the return-days of all process issuing out of the respective
courts, whenever such return-days are not otherwise provided for
by law.

NOTE. This is part of Section 58 of the Act of March 29, 1832, P. L,.
213, 3 Purd. 3370, which was new in that act.



ORPHANS' COURT ACT SECTIONS 15-16-17 (o) 73

113. PROCEEDINGS IN VACATION.

SECTION 15. The several orphans' courts of this common-
wealth shall have full power in vacation to administer the busi-
ness of the court and to issue process; Provided, That said
process shall be made returnable only in the county where the
proceeding is pending.

NOTE. This is founded on Section i of the Act of May 7, 1889, P. L.
102, 3 Purd. 3371, which applies to "the law judges of the several courts
of the commonwealth." "Administer the business of the court and issue
process" has been substituted for "grant citations and rules to show
cause," etc. In the proviso, the words "at a term of court" have been
omitted after "returnable."

Under the authority of this section, the court may grant in chambers
a petition for leave to pay a legacy of $100 to the father of a minor as
its natural guardian. Storer's Estate, 28 Dist. 215.

114. INJUNCTIONS.

SECTION 16. The said courts shall have power to prevent, by
orders in the nature of writs of injunction, acts contrary to law
or equity, prejudicial to property over which they shall have
jurisdiction: Provided, That security may be required as in
other cases of writs of injunction.

NOTE. This is Section 7 of the Act of May 19, 1874, P- L. 207, 3 Purd.
3370, except that the proviso to that section reads : "That security shall
be given, as is now required by law in cases of writs of injunction."

115. PROCEEDINGS TO OBTAIN APPEARANCE;

CITATIONS, PROCEDURE IN DEFAULT OF
APPEARANCE.

SECTION 17. The manner of proceeding in the orphans' court,
to obtain the appearance of a person amenable to its jurisdiction,
and the procedure in default of appearance, shall be as follows :

116. AWARDING CITATION.

(a) On petition to the court of any person interested, whether
such interest be immediate or remote, setting forth facts necessary
to give the court jurisdiction, the specific cause of complaint, and
the relief desired, and supported by oath or affirmation, the
orphans' court, or any judge thereof, may award a citation
returnable at a day certain, not less than ten days after the
issuing thereof.



74 ORPHANS' COURT ACT SECTION 17 (a), (&), (c), (<f)

NOTE. This and the following clauses of this section, except where
otherwise indicated in the notes, are founded on Section 57 of the Act
of March 29, 1832, P. L. 207, 3 Purd. 3372-77-

In the present clause, the words "in vacation" are omitted after
"judge thereof."

See forms 27, 57.

One who is simply a surety for the administrator of an estate cannot
be said to be interested in the estate of which his principal is the
administrator, although the administrator fails to account for and pay
the trust property and funds which came into his hands and thereby the
surety becomes a debtor of the estate, and therefore under the above
section such surety has no standing to require his principal, who is the
administrator, to pay adjudicated claims. Seidman's Estate, 20 Lack. 176,
citing Moore's Estate, 19 Dist. 109.

117. BY WHOM TO BE SERVED.

(&) Such citation may be served by the party obtaining the
same, or by any authorized agent, or, if required by the party,
it shall be served by the sheriff or coroner, as the case may
require, of the proper county.

118. MANNER OF SERVICE.

(c) The manner of service shall be by giving a copy thereof to
the respondent personally, or by leaving such copy with some
adult member of his family, at his place of residence.

NOTE. In this, as in several subsequent clauses, "respondent" has been
substituted for "defendant." The word "adult" has been inserted, and
"residence" substituted for "abode."

119. PLACE OF SERVICE.

(d) Such service may be made anywhere within this common-
wealth; and if such party resides outside the commonwealth
and his place of residence is known and the proceeding concerns
property situate within the commonwealth, the court may, in
its discretion, authorize service to be made on such party per-
sonally wherever found, or by registered mail, or may direct
notice to be given by publication in such manner as shall appear
to the court to be reasonable and proper, according to general
rules adopted by the court, or special orders made by the court
in particular cases.

NOTE. This is a new clause, intended to make citations operative
throughout the state, and to provide for service outside the state in cases
where the court has jurisdiction; Wallace v. United Electric Company,
2ii Pa. 473; Coleman's Appeal, 75 Pa. 441.



ORPHANS' COURT ACT SECTION 17 (*), (/), (0), (h) 75

120. SERVICE ON SURETIES.

(e) If the respondent be not found, and have no known resi-
dence within the county, such citation may be served, in like
manner, upon the person or persons who may be the surety or
sureties of such party, in any bond or recognizance given by him
for the performance of any trust or duty in respect to which
such citation may have issued.

NOTE. This is Clause IV of Section 57 of the Act of March 29, 1832,
3 Purd. 3374, the only changes being to substitute "respondent" for
"defendant" in the first line, and "residence" for "dwelling place" in the
second line.

The method of service here provided for does not meet the case of a
respondent who has given no bond and who resides in or has removed
to another state. Such a case is intended to be covered by the last
preceding clause.

121. RETURN OF SERVICE.

(/) The return to a citation, if made by the party on whose
petition it issued, or his agent as aforesaid, shall be on oath or
affirmation ; and in all cases of service the return shall state how
such citation was served.

122. ALIAS AND PLURIES CITATIONS.

(#) If the party to be cited cannot be found, and has no known
residence, and there is no surety on whom service of the citation
can be made as aforesaid, and the facts shall be so stated in the
return on oath or affirmation, by the party complaining, or by
some one competent to make affidavit in that behalf, the orphans'
court may award another citation or pluries citations, returnable
in like manner with the first.

NOTE. This is Clause VI of Section 57 of the Act of 1832, except that
the words "dwelling place within this commonwealth" are omitted and
"residence" substituted, the case of a party having a known residence
outside the state having been covered by clause (d) of this section, and
that the words "or pluries citations" have been inserted.

123. ORDER OF PUBLICATION ON AWARD OF
ALIAS OR PLURIES CITATIONS.

(h) At the time of awarding such second or further citation,
the court may make an order for publication of the same, in
such place or places, and for such length of time, as the court,
having regard to the supposed place of residence of the respond-
ent, and other circumstances, shall direct.



76 ORPHANS' COURT ACT SECTIONS 17 (*), (*) i, 2-18 (o)

NOTE. This is Clause VII of Section 57 of the Act of 1832, inserting
"or further" in line I, omitting, after "the same," the words "in two or
more newspapers, to be designated by the court," and changing "de-
fendant" to "respondent" in line 5.

124. DEFAULT OF APPEARANCE, POWER -OF

COURT TO PROCEED.

() I. At the time appointed for the appearance of the re-
spondent, should he not appear, according to the requisition of
the citation, and if due proof be made of the service thereof, or,
when service cannot be made, of the publication thereof, as here-
inbefore prescribed, the court may, with or without another
citation, as justice may require, proceed to make such order or
decree in respect to the subject matter as may be just and
necessary.

125. METHOD OF PROCEEDING.

2. It shall be lawful for the court, on such proof, to order that
the petition of the complainant be taken as confessed, and, in
cases where there is personal service, to grant relief according
to the prayer thereof. When there is no personal service tht
court shall, and when there is personal service the court
may, in its discretion, hear testimony in support of the allega-
tions of the petition, or direct a reference to a master or au-
ditor to take proof of the facts and circumstances set forth in
the petition, and to report thereon ; and also to report an account
against such respondent, if necessary. On the report of such
master or auditor, the court shall make such order or decree as
may be just and necessary.

NOTE. This is a combination of clauses IX and X of Section 57 of
the Act of 1832, 3 Purd. 3374-5, modified so as to make it discretionary
with the court to enter a decree without testimony, to hear testimony
itself, or to appoint a master. Clause IX as it now stands provides only
for the appointment of an auditor.

Under the existing law, such a decree cannot be entered, even where
there is personal service, without hearing witnesses: Shilling's Appeal,
i Pa. 90.

126. PROCEEDINGS TO COMPEL OBEDIENCE TO

ORDERS AND DECREES.

SECTION 18. (a) Compliance with an order or decree of the
court may be enforced :



ORPHANS' COURT ACT SECTION 18 (a), i, 2, 3, 4 77

127. ATTACHMENT OF THE PERSON.

1. By attachment of the person.

NOTE. This and Clauses 2 and 3 are derived from Clause XI of Section
57 of the Act of 1832, with the addition of the words "of the person"
after "attachment," and "of real or personal property" after "sequestra-
tion," and the omission, at the end, of the words "in vacation."

Section 8 of the Act of March 27, 1713, i Sm. L. 84, 3 Purd. 3375,
which has been held to be still in force : Ex parte Batdorf , 13 W. N. C.
417, provides : "If any person or persons, being duly summoned to appear
in any of the said orphans' courts, ten days before the time appointed
for their appearance, shall make default, the justices may send their
attachments for contempts, and may force obedience to their warrants,
sentences and orders, concerning any matter or thing cognizable in the
same courts, by imprisonment of body, or sequestration of land or goods,
as fully as any court of equity may or can do."

It is recommended that this section be repealed as covered by the present
clause.

128. SEQUESTRATION.

2. By sequestration of real or personal property.

129. FIERI FACIAS.

3. In case of a decree for the payment of money, against a
party who has appeared, the complainant may have a writ of
execution in the nature of a writ of fieri facias against personal
property only, which writ may be allowed by the court, or by
any judge thereof.

NOTE. This clause has been modified by inserting the words "against
personal property only." See the note to paragraph 5, infra.

130. ATTACHMENT EXECUTION.

4. Whenever any person against whom a decree for the pay-
ment of money has been made by any orphans' court is pos-
sessed of or entitled to any stock, deposits or debts due him, or
to any legacy or interest in the estate of a decedent, the same
may be levied on or attached in satisfaction of such decree, by
the same process and in the same manner as is now or may here-
after be provided by law in the case of judgments of any court
of common pleas. A writ of attachment for said purpose may
be allowed by said orphans' court, or any judge thereof, as
writs of fieri facias in said court are allowed, and may be served
out of the county in which the same may be issued; but service
on the party against whom such decree was made shall not be



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 8 of 71)