Raymond Moore Remick.

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

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required, if he be not found in said county.



78 ORPHANS' COURT ACT SECTION 18 (a) 4, 5, (&), i, 2

NOTE. This is founded on Section I of the Act of March 27, 1873,
P. L. 49, 3 Purd. 3378. That section refers to the Acts of June 16, 1836,
P. L. 767 (see 32-8) and April 13, 1843, P- L. 235, Section 10. As such a
reference cannot constitutionally be made in the present act, it is recom-
mended that the Act of 1873 be not repealed.

.131. TESTATUM FI. FA.

5. Writs of testatum fieri facias may be issued out of any
orphans' court, in the same manner that writs of execution in
the nature of writs of fieri facias are allowed by this act; and
the sheriff, or other officer to whom any such writ is directed,
i hall proceed to levy and sell the personal property of the person
or persons against whom the same shall be issued, in the same
manner in all respects, as if such writ had issued out of a court
of common pleas.

NOTE. This is part of Section 2 of the Act of April 21, 1846, P. L. 430,
3 Purd. 3377, eliminating all references to the writ of vend. ex. and to
real property, pursuant to the conclusion of the Commissioners that
executions against real property should issue from the common pleas
only. See paragraph 3, supra, cause (e) infra, and Section 51 of the
Fiduciaries' Act. This, it seems to the Commissioners, is the logical
and convenient arrangement, since, as pointed out in Weyand's Appeal,
62 Pa. 198, 202, a decree of the orphans' court is, of itself, no lien on
real estate, and it is anomalous that a vend. ex. should issue on a judg-
ment which has no lien.

Under Section 51 of the Fiduciaries' Act (see 561-2 infra) and under
clause (e) of the present section, a lien on real estate may be acquired
by filing a transcript in the common pleas, where the judgment will be
indexed, a matter for which there is no provision in the orphans' court;
and it is proper that the execution against real estate should issue from
the court where the lien is acquired. In line 3, "allowed by this Act" is
substituted for "allowed by the 57th section" of the Act of 1832. The
remainder of that section validated prior proceedings.

132. PROCEDURE ON ATTACHMENT OR SEQUES-

TRATION, DIRECTION OF WRITS.

(b) i. Writs of attachment of the person and sequestration
shall be directed to and executed by the sheriff or coroner, as the
case may require, of the proper county.

NOTE. This and the following paragraphs of this clause, except where
otherwise indicated, are copied from the clauses of Section 57 of the
Act of 1832.

133. ISSUANCE OF PROCESS TO OTHER COUNTIES.

2. When any executor, administrator, guardian or trustee shall
reside or move out of the county in which his appointment shall



ORPHANS' COURT ACT SECTION 18 (6) 2, 3, 4, 5 79

have taken place, or shall not possess real or personal estate in
such county, sufficient to satisfy any decree or order of the
orphans' court of such county, it shall be lawful for the or-
phans' court of such county to issue process to the county in
which such executor, administrator, guardian or trustee may be,
or in which he may have any real or personal estate, amenable to
such process ; and such process shall be executed by the sheriff
or coroner, as the case may require, of the county in which such
executor, administrator, guardian or trustee may be, or may
possess real or personal estate as aforesaid.

NOTE. This is Clause XXV of Section 57 of the Act of 1832, extended
so as to include trustees.

134. FORM OF WRIT OF SEQUESTRATION.

3. Writs of sequestration shall be in the following form :
The Commonwealth of Pennsylvania : To the sheriff of the

County of , greeting: Whereas, A. B. (here set out

the decree, or so much thereof as is material to explain the duty
to be performed). Therefore we command you, that you do, at
proper and convenient hours in the day-time, go to and enter
upon all the messuages, lands, tenements and real estates of the
said A. B., and that you do collect, take and get into your hands,
not only the rents, issues and profits of all his said real estates,
but also all his goods, chattels and personal estate and detain
and keep the same under sequestration in your hands; and also
that you attach all stocks held by him in incorporated companies,
and keep the same under attachment, until our said orphans'
court shall make other order to the contrary; and you are to
return with this writ an inventory or schedule of the property
you have sequestered or attached, and a certificate under your
hand of the manner in which you shall have executed this writ,
to our said court, on the day of

next. Witness, etc.

135. SEQUESTRATION NOT TO ABATE ON DEATH

OF PARTY.

4. A sequestration shall not abate by the death of the com-
plainant or respondent.

136. FILING COPY OF WRIT OF SEQUESTRATION

IN PROTHONOTARY'S OFFICE.

5. It shall be the duty of the sheriff or the coroner, as the case
may be, immediately after receiving any such writ of sequestra-



80 ORPHANS' COURT ACT SECTION 18 (&) 5, 6, 7

tion, to file a copy thereof in the office of the prothonotary of the
court of common pleas of the same county, who shall, forth-
with, enter the substance thereof on his docket, with the names
of the parties, and index the same in the judgment index; and
the entry thereof shall thenceforward operate to charge the real
estate of the respondent, according to the form and effect of such
writ, and shall bind the same in the hands of all purchasers and
mortgagees, subsequently to such entry, without other notice:
Provided, That if such sequestration shall be dissolved by the
order of the orphans' court, the respondent, or any person
interested in such real estate, may have a certificate of the same
from the clerk of the said court, which it shall be the duty of
such clerk to furnish, on application, and which, being entered
on the docket of said court of common pleas, shall have the
effect of a satisfaction of such lien.

NOTE. This is Clause XV of Section 57 of the Act of 1832, altered by
substituting "respondent" for "defendant," by inserting in the next to
the last line the words "of said Court of Common Pleas," and by adding
the provision for indexing in the judgment index.

137. ISSUANCE OF ATTACHMENT OR SEQUESTRA-

TION WHERE PARTY ABSCONDS.

6. When proof shall be made, on oath or affirmation, to the
satisfaction of the court, or to any judge thereof, at the time
of filing the petition as aforesaid, that the respondent has ab-
sconded or is about to abscond or depart from his usual place of
abode, to the prejudice of the complainant, it shall be lawful for
the court, or for such judge, to allow the issuing of a writ of
attachment of the person, or a writ of sequestration, or both, in
the first instance, against such respondent; and on the return
thereof, the like proceedings may be had, as are authorized on
the return of a citation.

NOTE. This is Clause XVII of Section 57 of the Act of 1832. The
following changes have been made: In line 2, the words "if in session"
have been omitted after "court," and "in vacation" after "thereof." In
line 4 and line 9 "respondent" has been substituted for "defendant."

138. DISSOLUTION OF ATTACHMENT OR SEQUES-

TRATION.

7. If such attachment of the person or sequestration issued
in the first instance be executed, the court, or any judge thereof,
may dissolve the same, on the respondent giving security to the
satisfaction of the court, or of such judge, to appear on a day



ORPHANS' COURT ACT SECTION 18 (&) 7, 8, 9 81

certain to answer to the petition, and to abide the orders and
decrees of the court in the premises.

NOTE. This is Clause XVIII of Section 57 of the Act of 1832, omitting
"in vacation" in line 2, and changing "defendant" to ''respondent" in line 3.

139. DISCHARGE OF PERSONS ATTACHED AS FOR

CONTEMPT.

8. Any person attached as for contempt in refusing to obey
an order or decree of the orphans' court, whether for the pay-
ment of money or in any other case, may be discharged from
custody by said court on his complying with the order or decree
of the court, or paying the money for which such order or decree
has been made, or upon his purging himself of contempt to the
satisfaction of the court by whose order he was attached.

NOTE. This is a new clause, introduced to make it plain that such
discharge may be made by the orphans' court, and that the respondent
need not resort to insolvency proceedings in the court of common pleas.
There is a conflict of authority on the question under the existing law.
See Baker's Estate, 21 D. R. 177; Ex parte Batdorf, 13 W. N. C. 417.

140. PROCEDURE WHERE PARTY IS WASTING

TRUST PROPERTY, OR IS ABOUT TO AB-
SCOND.

9. When proof shall be made, on oath or affirmation, to the
satisfaction of the court, or of any judge thereof, at the time
of presenting a petition, or at any stage of the cause, that the
party therein named has in his possession trust property or
effects, which he is wasting or otherwise disposing of contrary
to his duty and the trust, or that he is about to abscond and to
carry such trust property or effects out of the jurisdiction of the
court, it shall be lawful for the court, or such judge, to award a
writ, in the name of the commonwealth, to the sheriff or coroner,
as the case may require, of the proper county, returnable on a
day certain, commanding him to take possession of all such
trust property and effects specified in such writ, and to hold the
same subject to the order of the court, and also to attach all
debts due to such trust, whether by bond, mortgage or otherwise,
and all stocks in incorporated companies, and serve a copy of
such writ upon each debtor, and upon each company in which
stock may be held belonging to the trust as aforesaid : Provided,
That before the execution of such writ, the sheriff or coroner, as

6



82 ORPHANS' COURT ACT SECTION 18 (&) 9, 10, 11, 12

the case may be, may require of the party at whose ^instance such
writ may have been issued, sufficient security to indemnify him
against any damages arising from the execution thereof : And
provided also, That if the party against whom such writ may
issue shall give sufficient security to such sheriff or coroner, that
the trust property or effects specified in such writ shall be forth-
coming at the return thereof, then such sheriff or coroner shall
not execute the same, but shall make return of the facts to the
court.

NOTE. This is Clause XIX of Section 57 of the Act of 1832. In line 2,
the words "in vacation" are omitted as also in line 9. In line 12, after
"day certain" the following words are omitted : "to the orphans' court,
to be convened for that purpose, if the said court shall not then be in
session."

In line 5, and wherever the words "trust property" appear, the comma
between the words, which appears in the Act of 1832, is omitted. It did
not appear in the original draft of the Act of 1832.

141. ENFORCEMENT OF FINAL ORDER AND DE-

CREE FOR DELIVERY OF TRUST PROP-
ERTY.

10. The like proceedings may be had, where the court has
made a final order and decree for the delivery of the trust
property and effects by the respondent, to any person who may
be designated by law, or by the order of the court, to receive
them.

142. ORDER AS TO FINAL DISPOSITION OF TRUST

PROPERTY.

11. On the return of such writ, the court may make such
order respecting the disposition of such trust property and effects
as may be necessary and proper, according to the principles of
justice and equity.

NOTE, This is Clause XXI of Section 57 of the Act of 1832, 3 Purd.
3377, with the substitution of "make" for "take" in the first line.

143. DECREE IN SEQUESTRATION PROCEEDINGS

WHEN PARTY DOES NOT APPEAR; SE-
CURITY BY COMPLAINANT.

12. When a decree shall have been made against any party
who shall not have appeared according to the requisitions of the
citation, and a sequestration shall have issued against the real
or personal estate of such party, the court may order the decree



ORPHANS' COURT ACT^SEcrioN 18 (6) 12, 13, 14, (c) 83

to be satisfied out of the estate and effects sequestered : Provided,
That such order shall not be carried into execution, until the
complainant shall have given security, to the satisfaction of the
court, to abide the order of the court, touching the restitution of
what he may have received, in case the respondent shall appear,
and be admitted to defend the suit ; but if such security shall not
be given, the estate and effects sequestered, or the proceeds
thereof, shall remain subject to the direction of the court, to
abide its further order.

144. REOPENING OF SUCH DECREE.

13. If the party, against whom such decree shall have been
made, or his representatives, shall, within one year after personal
notice of such decree, and within five years after the entry thereof,
when no such notice shall have been given, present a petition to
the same court, praying to be admitted to be heard, and shall
pay such costs as the court shall adjudge, the party so petitioning
shall be admitted to a defence, and the case shall then proceed, in
like manner as if such party had appeared in due season, and no
decree had been made.

145. FAILURE OF RESPONDENT TO APPLY FOR

REOPENING.

14. If such party, or his representatives, shall not, within such
period, present a petition as aforesaid, the court may make such
final order and decree, both in respect to any estate or effects
that may have been sequestered and in respect to the matters in
controversy in the case, as may be according to justice and equity;
and may, if necessary, award a writ in the nature of a fieri facias,
in the manner hereinbefore provided, as in the case where the
party appears.

146. PROCESS TO RECOVER FINES, FORFEITURES

AND AMERCEMENTS.

(c) Each of the orphans' courts shall have power to award
process, to levy and recover such fines, forfeitures and amerce-
ments as shall be imposed, taxed or adjudged by them respec-
tively.

NOTE. This is Section 20 of the Act of June 16, 1836, P. L. 792, 3 Purd.
3370, limited to the orphans' court.



84 ORPHANS' COURT ACT SECTION 18 (rf), (<?) i

147. DIRECTION OF, AND PROCEDURE ON, WRITS

OF FI. FA.

(d) Writs of fieri facias shall be directed to, and executed by
the sheriff or coroner, as the case may require, of the proper
county, and the proceedings thereon shall be the same as on
writs of fieri facias against personal property issued by the court
of common pleas of the same county.

NOTE. This is Clause XVI of Section 57 of the Act of 1832, 3 Purd
3376, altered by inserting the words "against personal property."

148. TRANSCRIPTS TO THE COMMON PLEAS OF

ORDERS UPON PARTIES, OTHER THAN
FIDUCIARIES TO PAY MONEY. FILING
TRANSCRIPTS AND EFFECT THEREOF, EX.
ECUTIONS.

(e) i. It shall be the duty of the prothonotaries of the courts
of common pleas to file and docket, whenever the same shall be
furnished by any parties interested, certified transcripts of any
definitive orders of the orphans' court of the same or any other
county upon parties other than fiduciaries, to pay certain sums
of money, which transcripts, so filed, shall constitute judgments,
which shall be liens against the real estate of the persons ordered
to pay from the time of such entry until payment, distribution
or satisfaction. Executions may be issued thereon out of said
court of common pleas against the real estate only of such
persons, by any party or parties interested, for the recovery of
so much as may be due to them respectively. The liens of such
judgments shall cease at the expiration of five years from the
time of the entry aforesaid, unless revived by scire facias in the
manner by law directed in the cases of judgments of the courts
of common law.

In case of an appeal from the orphans' court, the judgment
shall be for no more than the amount finally decreed by the
appellate court to be due; and it shall be the duty of the
prothonotary of the common pleas, on such decree of the ap-
pellate court being certified to him, to enter on his docket the
amount so found due and decreed by the appellate court. If
such amount be greater than that decreed by the orphans' court,
the judgment for such excess shall take effect only from the time
of entering the decree of the appellate court ; but if the amount
be reduced by the final decree of the appellate court, the pro-



ORPHANS' COURT ACT SECTIONS 18 (<?) i, 2-19 85

thonotary shall reduce the amount originally entered on his
judgment docket and index accordingly; and such final decree,
upon appeal, being certified and filed in said court of common
pleas, the said term of five years shall be counted from the time
of such entry.

NoTE. This is founded on Section 51 (a) of the Fiduciaries Act (see
561 infra) which relates to the certification of balances due by fiduciaries
or amounts ordered to be paid by them. The present section is intended
to cover the certification of decrees against other persons for the payment
of money. It being provided by clause (a) 3 (see 129 supra) of the present
section that only personal property may be sold under execution from the
orphans' court, this clause is necessary in order to provide a method of
selling real estate.

The phraseology covers the provisions as to filing transcripts in other
counties contained in the Act of June 5, 1885, P. L. 78, 2 Purd. 1426, which
is recommended for repeal so far as it relates to orders and decrees of
the orphans' court.

149. SATISFACTION AND DISCHARGE OF JUDG-

MENTS ON TRANSCRIPTS.

2. When the person liable shall have fully paid and discharged
the amount of such judgment, the parties who have received
payment shall acknowledge satisfaction thereof, on the record of
the court of common pleas. In case of neglect or refusal so to
do, for the space of thirty days after request in writing and
tender of all the costs, the orphans' court, on due proof to them
made that the entire amount due from such person, according
to the order of the orphans' court, has been fully paid and
discharged, may make an order for his release from such re-
corded judgment, which order, being certified to the court of
common pleas, shall be entered on their records and shall operate
as a full satisfaction and discharge of such judgment.

NOTE. This is founded on Section 51 (fc) of the Fiduciaries Act
(see 562 infra).

150. FEES OF SHERIFF; MILEAGE; POSTAGE.

SECTION 19. The fees to be taken by the sheriffs of each county
for the services enjoined by this act shall be the same as those
allowed for like services ; and for executing a writ of sequestra-
tion the same fees shall be allowed as upon a writ of foreign
attachment, together with reasonable costs and expenses, accord-
ing to the discretion of the court. On all writs and process sent



86 ORPHANS' COURT ACT SECTIONS 19-20(0), (fr) i

from another county, no mileage shall be allowed, except for the
distance actually traveled, but an allowance shall be made for
the transmission of such writs and process, to the clerk of the
court from which they may have issued, at the common rates of
postage.

NOTE. This is Section 60 of the Act of March 29, 1832, P. L. 213, 3
Purd. 3385, except that, in line 3, the word "already" is omitted before
"allowed."

151. WITNESSES AND EVIDENCE, SUBPOENAS.

SECTION 20. (a) Each of the orphans' courts of this common-
wealth is empowered to issue writs of subpoena, under its official
seal, into any county of this commonwealth, to summon and
bring before the respective court, any person to give testimony
in any cause or matter depending before it, under the penalties
that are or shall be appointed and allowed in any such case by
the laws of this commonwealth.

NOTE. This is Section 22 of the Act of June 16, 1836, P. L. 793, 3
Purd. 3370, which relates to the other courts as well as the orphans'
court.

"Its" and "it" have been substituted for "their" and "them," and "that
are or shall be" for "hitherto" after "penalties."

152. METHODS OF TAKING TESTIMONY, IN

GENERAL.

(&) i. In all proceedings begun by petition, where an issue of
fact is raised, it shall be within the discretion of the orphans'
court, by general rule or by special order in the case, to provide
for the reference of the case to a master to take the testimony
and report his findings and his recommendations as to a decree,
or to provide for the taking of depositions before a notary public
or other official authorized to administer oaths and affirmations,
or to provide for the taking of testimony before a judge of said
court. The office of examiner in the orphans' court, appointed
merely for the purpose of taking testimony, is hereby abolished,
except in the cases mentioned in paragraph 3 of this clause, and
except in cases where, at the time of the approval of this act,
examiners have been appointed and are still in office.

NOTE. This is a new clause, framed to do away with the taking of
testimony before an examiner without power to rule on offers of testi-
mony or to recommend a decree, and to substitute the appointment of a



ORPHANS' COURT ACT SECTION 20 (6) i, 2, 3 87

master or the taking of depositions on rule before any official authorized
to administer oaths.

In a proceeding in the orphans' court on petition, answer and replica-
tion, the proper practice is to move for the appointment of a master to
take the testimony and report his findings of fact to the court unless the
parties can agree upon the facts.

Under the Orphans' Court Act of June 7, 1917, Sec. 20 (6) P. L. 363,
380, the court may, in its discretion, authorize the taking of depositions
before a notary public, but such discretion will only be exercised in
matters of small importance. DiBattista's Est, 30 Dist. 988.

153. DEPOSITIONS OF AGED, INFIRM AND GOING

WITNESS; COMMISSIONS AND LETTERS
ROGATORY.

2. Every orphans' court of this commonwealth shall have
power to make rules regulating the taking of depositions of aged,
infirm and going witnesses, and the issuance and execution of
commissions to take testimony and letters rogatory.

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

This subject was covered in substance by the 8th section of the Act
of May 23, 1887 (P. L. 158) relating to the competency of witnesses,
which provides that "in any civil proceedings the testimony of any com-
petent witness may be taken by commission or deposition in accordance
with the laws of this commonwealth and the rules of the proper court."
Per Criswell, P. J., Bleakley's Estate, 28 Dist. 289, 37 Lane. 29, 15 Del. 199.

In view of the age of the petitioner, her physical infirmities and the
expense incident to a long journey, an appellant from the decree of the
register of wills admitting to probate a writing purporting to be the
last will and testament of a decedent, is a witness whose testimony may
be taken by commission under this section of the Act. Bleakley's Estate,
28 Dist. 289, 37 Lane. 29, 15 Del. 199.

154. ORAL DEPOSITIONS OUTSIDE OF STATE.

3. Where the testimony of any witness is desired to be read in
evidence in any proceeding now or hereafter pending in any
orphans' court of this commonwealth, and such witness resides
in any other state, territory or possession of the United States of
America, or in any foreign country, the court may, on the appli-
cation of any party, provide for the taking, in such other state,
territory, possession or foreign country, of the testimony of such
witness or witnesses orally, before an examiner appointed by the
court, or before any person authorized by the laws of such other
state, territory, possession or foreign country to administer oaths.



88 ORPHANS' COURT ACT SECTION 20 (6) 3, (O, (<0

In granting any such application the court may impose such
terms as it shall deem proper, as to the payment by the party
applying therefor of the costs and expenses involved, including
reasonable counsel fees and traveling expenses, and may prescribe
the notice to be given and the time within which such testimony
shall be taken.

NOTE. This is founded on Section i of the Act of June 8, 1911, P. L.
709, 5 Purd. 6091, which relates to "any of the civil courts of this com-
monwealth."

In view of the nature of the controversy under investigation (an appeal
from the probate of an alleged will) and in view of the age of appellant,
her physical condition and the expense incident to a long journey the
court held that an oral examination of the witness as authorized by
this section would be preferable to a commission in eliciting fully her
knowledge on the subject in controversy. Bleakley's Estate, 28 Dist. 289,



Online LibraryRaymond Moore RemickThe statutory law of decedents' estates in Pennsylvania, with annotations and forms → online text (page 9 of 71)