(IJnrnpU Ham i>rl|nnl ICibrary of Ievin Stetler. Esq. Cornell University Library KFP 147.R38 The statutory law of decedents' estates 3 1924 017 692 850 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017692850 THE STATUTORY LAW OF DECEDENTS' ESTATES IN PENNSYLVANIA WITH ANNOTATIONS AND FORMS. EDITED BY RAYMOND M. REMICK OF THE PHILADELPHIA BAR GEO. T. BISEL CO. PHILADELPHIA, 1922. Copyrighted, 1922 Geo. T. Bisel Co., Philadelphia PREFACE By the Act of April 23, 1915, (P. L. 177) the General Assembly of the Commonwealth of Pennsylvania authorized the Governor '.'to appoint a Commission of three persons, learned in the law, and one of whom shall be an orphans' court judge in commission, to codify and revise the law of decedents' estates whether testate or intestate, and to report the same to the next General Assembly, and to recommend such changes in the existing law as may to such Commission seem advisable." Acting under this authority, on October 4, 191 5, Governor Brumbaugh appointed Hon. John Marshall Gest, then and now a judge of the Orphans' Court of Philadelphia County, Hon. George E. Alter, the present Attorney General, and Hon. Thomas J. Bald- rige, the President Judge of Blair County, as Commissioners to carry out the purpose of the act. The wisdom of his choice is best demonstrated by the results of their labor. The Commission appointed Samuel D. Matlack, Esq. of the Philadelphia Bar, its Law Clerk and Secretary, and through him presented its printed report to the Assembly on February i, 191 7. It is an indication of the painstaking and valuable work of this Commission that the General Assembly of 1917, enacted without change (except as noted in Section 391 and the end of Section 623 herein) the acts which were offered by the Commission for its con- sideration. The acts were all approved on June 7, 1917, and include the "Orphans' Court Partition Act," (P. L. 337) ; the "Orphans' Court Act," (P. L. 363) ; the "Revised Price Act," (P. L. 388) ; the "Wills Act," (P. L. 403) ; the "Register of Wills Act," (P. L. 415) ; the "Intestate Act," (P. E. 429) ; and the "Fiduciaries Act," (P. L. 447). On the nth day of July, 1917, there were ap- proved two acts one (P. L. 755) amending Clause 2, (a) of the Intestate Act, and the other ( P. L. 790) providing that fiduciaries having an interest in any coal-mining lease may, with the approval of the court, sell, assign, alter, modify and supplement the same under the same procedure as that prescribed for the sale of real estate under the Revised Price Act. Several minor changes have also been made by the Legislature in its sessions of 1919 and 1921. Otherwise the code as drafted and presented by the Commissioners remains unchanged, an ever lasting monument to their industry and ability. Some idea of the iv PREFACE v&lue of this codification and revision to the bar may be gained from the fact that it supersedes two hundred and eighty-seven former acts repealed absolutely or in part. The Commissioners, in their report, embodied certain prelimi- nary notes to the report as a whole and also with respect to each act. Also, in connection with each section as presented, they an- nexed an explanatory remark and a statement as to the former law which the proposed section was intended to supersede, to- gether with a reference to Purdon's Digest where the former act had been annotated, and in certain cases, to the decision of the court which impelled or suggested the proposed change or new enactment. These comrnents by the Commissioners, are, to the practitioner, of inestimable value in construing the act and apply- ing it to present cases in the light of former precedents. With the consent of the Commissioners these prefatory remarks and sectional notes have been embodied herein verbatim. The value of these notes by the Commissioners, to the bench and bar in construing the acts may be gained from the following extract from an opinion of Mr. Chief Justice Moschzisker in Miles' Est., January 3, 1922, S. C. October Term, 1921, Nos. 61 and 62, not yet reported : "While it is well settled that courts may not resort to views expressed by those who either draft or enact laws, for the purpose of determining the meaning of the words employed therein (see opinion of the court below in Com. v. Mathues, 210 Pa. 372, 392, and authorities there cited), yet, in order to get at the old law, the mischief and remedy, and properly to understand and construe a statute embodying the latter, the history of the enactment in question may always be considered; and when the statute under consideration is a general revision, 'the law as therein written will be deemed to be the same as it stood prior to the revision, unless we find from the statute itself, or its history, a clear intention to change it ;" In re Lis's Estate, 139 N. W. 300, 302, and cases there cited ; also see authorities in 36 Cyc. 1223. The United States Supreme Court has recently decided, in Duplex Print- ing Press Company v. Deering (advance opinion of February i, 1921, pp. 182-3), that the report of a committee, having a bill in charge during its passage, "may be regarded (judicially) as an exposition of the legisla- tive intent in a case where otherwise the meaning of a statute is obscure ;" but it is not necessary to express our views on this point or resort to such an expedient in the case at bar, for, as already shown, when the history of the legislation and all cognate parts of the present act are considered together, the meaning of the statute becomes reasonably dear. We may add, however, that when the report of the commission which drafted the present act (The Intestate Act) is examined, to as- certain what that body was endeavoring to express (a course pursued by PREFACE V this court in McDowell v. Addams, 45 Pa. 430, 433, when construing the old Intestate Act of 1833; see also Whitaker's Estate, 175 Pa. 139, 140-2, and in re Lis's Estate, supra), it is of interest to observe that the notes, on the several sections of the act to which we have referred in this opinion, show the intention of the original draftsmen, so far as the meaning of these parts are concerned, is borne out in the construction placed upon their work by the court below, and concurred in here." No attempt has been made to digest the cases construing the former acts of assembly replaced by the present Code as this has been accomplished in Purdon's Digest, to which reference is herein given. There have been added a digest of the cases con- struing the sections of the acts as the same have been reported, a comprehensive index, table of cases, citation of cases and lists of acts amended or repealed and a collection of forms. This work purports to include all amendatory acts of 1919 and 1921 and all reported cases down to December 31, 1921. The editor acknowledges with thanks the assistance of Harry C. Reynolds, Esq., and Joseph A. Lamorelle, Esq., of the Philadelphia Bar, in verifying the citations of authorities, etc. R. M. Remick. To THE General Assembi^y op the Commonwealth op Penn- sylvania : The undersigned were on October 4, 1915, appointed by his ex- cellency, the Governor, in accordance with the Act of April 23, 1915, P. L. 177, as Commissioners to codify and revise the law of decedents' estates, whether testate or intestate, and to report the same to the next General Assembly, and to recommend such changes in the existing law as may to such Commission seem de- sirable. We have now the honor to submit our report, which we beg leave to preface with a few explanatory remarks. On March 23, 1830, the General Assembly adopted a joint res- olution, printed in the Pamphlet Laws of 1830, page 408, by which the Governor was authorized to appoint three persons as Com- missioners to revise, collate and digest all such public acts and statutes of the civil code of this State and all such British Statutes in force in this State as are general and permanent in their nature. In accordance with this resolution the then Governor, the Honor- able George Wolf, appointed William Rawle, Thomas I. Wharton and Joel Jones as such Commissioners, who subsequently reported a large number of draft Acts, five of which, relating to our present subject, were substantially adopted by subsequent Legislatures as the Act of March 15, 1832, P. L. 135, entitled An Act Relating to Registers and Registers' Courts; the Act of March 29, 1832, P. L. 190, entitled an Act Relating to Orphans' Courts ; the Act of April 8, 1833, P. L. 249, entitled An Act Relating to Last Wills and Testaments; the Act of April 8, 1833, P. L. 315, entitled An Act Relating to the Descent and Distribution of the Estates of Intestates, and the Act of February 24, 1834, P. L. 70, entitled An Act Relating to Executors and Administrators. These acts were drafted with great care and consummate skill, and have served for over eighty years as the substratum of our law of decedents' estates and connected subjects; but during this long period of time the law has been amended by the passage of more than two hundred Acts of Assembly, has been elucidated and applied in countless judicial decisions, and has been necessarily affected by the cumulative changes in legal practice and public opinion. The present would therefore seem an appropriate time to re-examine the entire subject, to repeal statutes which are either dead letters in the books or prejudicial in their effect, to consolidate REPORT OF COMMISSIONERS vii those that should be retained and to revise the entire system by the cautious introduction of new legislation. The act under which we were appointed uses the words "to codify and revise" ; and as the word "code" is often used in dif- ferent meanings, we beg leave to observe, that as we have under- stood the legislative intention, we were not expected to reduce to the form of a code those general principles which lie at the basis of jurisprudence, a task that would indeed be beyond our powers, even if its accomplishment were desirable. We have considered that we were merely expected to arrange this branch of the law in an orderly and systematic form, to relieve it from obscurity and in- consistency, and thus to I'ender its application easier and more definite. In our endeaver to fulfil the difficult and responsible task thus imposed upon us, we have in many ways been guided by the ex- ample of the Commissioners of 1830, and particularly in this : We have avoided making any change in the phraseology of the existing statutes unless some definite and substantive change in the purpose of the law itself was intended, even where some other words or expressions might seem better adapted to express that purpose. Our obvious reason has been that the phraseology of the older statutes, much of which the Commissioners of 1830 copied from prior statutes as early as those of 1705, 1794 and 1797, has ac- quired through long use and judicial decision a settled and deter- minate meaning, which should not be disturbed through any de- sire to attain mere elegance of diction ; and, indeed, this course was expressly enjoined upon the Commissioners of 1830 by the Resolution of the General Assembly, which provided that in the revision of the statutes "no such change shall be made in their phraseology by which their true intent and meaning shall in any wise be impaired, altered or affected, except in those instances in which it shall be expressly intended and proposed to amend or change the existing provisions of such statutes." This principle has however been adhered to with greater strictness in revising those statutes which relate to substantive law than in case of those which merely regulate procedure; and, throughout, some verbal changes have been made for the sake of brevity and clear- ness, where no alteration of the meaning is involved. Upon another point we would also refer to the judicious language of the Commissioners of 1830, where they stated their belief that the Legislature desired to possess not only a revised viii REPORT OF COMMISSIONERS and consolidated code, but one systematized as to subject matter and arranged into regular and appropriate titles each of which shall contain all that naturally belongs to it and no more. Our duty has been "to codify and revise the law of decedents' estates, whether testate or intestate." As soon, however, as we undertook that duty, we found that it was difficult, if not impos- sible, to perform it without apparently exceeding the scope of our appointment. We discovered that many statutes applied not merely to the estates of decedents, but in a broader way to other subjects ; we could not touch one without touching another, and yet if we omitted such statutes altogether, our work would have been rendered obviously imperfect. For example, the Act of April i8, 1853, P. L. 503, commonly called the Price Act, relates not merely to sales of real estate where the real estate has been acquired by descent or will, but also to cases where the title has been acquired by deed, in which case jurisdiction is vested in the Courts of Common Pleas ; and yet by far the greater number of the cases to which the Act applies arise under wills. In this case, we have assumed that our inclusion of such a statute in our work of revision was virtually intended by the Legislature and there- fore submit our report with this explanation. So far as concerns our recommendations for substantive changes in the law, we have endeavored to be conservative, and yet have not hesitated to suggest important changes where we thought them distinctly beneficial. It has been often said, and with truth, that the burden of proof is upon him who advocates a change in the law, and this rule is distinctly applicable to that de- partment of the law which has been referred to us. For the law of decedents' estates in this Commonwealth is and has been for many years, certainly since the Revised Acts drafted by the Com- missioners of 1830, most admirable in its theory, and in practice most satisfactory to the community. We have therefore been careful to limit our recommendations to those changes, which we felt after our careful deliberations and unanimous conclusions would meet with the approval of the representatives of our fellow citizens, and deserve a practical trial. We have further endeav- ored to obtain from those best qualified to make suggestions their aid and counsel, and to this end immediately on our appointment addressed the Judges of the Supreme, Superior, Common Pleas and Orphans' Courts of the Commonwealth, and caused an ad- vertisement of our appointment to be inserted in our principal REPORT OF COMMISSIONERS ix legal journals as notice to the Bar. All the suggestions that we have received in this way have been carefully considered and many of thenj have been adopted by us. It gives us pleasure also to acknowledge our indebtedness to the Legislative Reference Bureau for much valuable assistance. In thus laying before the General Assembly the accompanying drafts, we would express our fear lest the complexity and diffi- culty of our subject may have caused us to omit matters that should have been included. But we hope that such are not numer- ous or, comparatively speaking, important, and that the work as a whole may meet with the approval of the General Assembly and prove beneficial to the Commonwealth. JOHN MARSHALL GEST, GEiORGE E. ALTER, THOMAS J. BALDRIGE, Commissioners. SAMUEL D. MATLACK, Law Clei*k and Secretary. February i, 1917. THE ORPHANS' COURT PARTITION ACT of June 7, 1917 (P. L. 337) Preliminary Note by Commission None of the subjects considered by the Commissioners have needed revision more than that of partition. The Acts of Assem- bly relating to this are numerous and complicated, and the Com- missioners have experienced no little difficulty in their revision. In Sections 2 and 3 of the Act as reported, express provision is made for a citation and notice to the parties interested before an inquest is awarded. In Section 5, and in other sections of the act, more liberal pro- vision is made for the service of citations or notices to parties resident outside of the commonwealth. In Section 6, it is provided that the sheriff's inquisition shall consist of three men, corresponding with the number of commis- sioners. In Section 7, the fees of commissioners and jurors are regulated. In Section 13, it is provided that the allotment of purparts among the parties entitled shall be in accordance with seniority of age, in order to estabHsh a uniform method in all cases. In Section 43, an appeal is authorized from the decree of the court awarding an inquest, which under the present law is held to be interlocutory only. TABLE OF CONTENTS 1917 Section Pamphlet Number Laws Herein The Orphans' Court Partition Act, 337 i Section i. Jurisdiction of Orphans' Court - 339 2 (a) In general, 2 (b) Coal and timber-lands, 340 3 I 2 PARTITION ACT— Contents igi7 Section Pamphlet Number Laws Herein Section 2. Petitioners, 4 Section 3. Citation, S Section 4. Parties respondent; notices to unknown parties 6 Section 5. Service outside of State 7 Section 6. Appointment of commissioners, or award of inquest, 341 8 Section 7. Compensation and mileage of commis- sioners and jurors, 9 Section 8. Making of partition by commissioners, or inquest, 10 Section g. Action of commissioners or inquest, where equal partition cannot be made, II (a) Where no division is possible; valuation of the whole II (b) Purparts unequal in value, 12 (c) Purparts not equal in number to number of parties entitled, 13 Section 10. Valuation of undivided interest of decedent 342 14 Section 11. Rule to accept or refuse the whole or purparts at the valuation 15 Section 12. Bids above valuation, 16 Section 13. Allotment in the absence of bids, 17 (a) Order of choice, 17 (b) Offer to next in succession where party entitled fails to appear, or refuses to take, 343 18 (c) Election to take real estate, or share thereof, postpones party as to other shares, or as to real estate in other county, It) Section 14. Permitting residue of premises to remain for parties not appearing, 20 PARTITION ACT— Contents 3 1917 Section Pamphlet Number Laws Herein Section 15. Allotment to widow as highest bidder, . . 343 21 Section 16. Partition to be firm and stable after final decree 22 Section 17. Owelty, 344 23 (a) Payment or security, 23 (b) Enforcement of payment by nonresident, 24 (c) Appointment of trustee for parties who are unknown, or cannot be found, 25 Section 18. Widow's interest 345 26 (a) Interest to remain charged on the premises, 26 (b) Charging widow's interest on particular purparts, 27 Section 19. Other undivided life interests to remain charged on real estate, 346 28 Section 20. Deduction of rental value from shares of parties who have been in possession 29 Section 21. Rule to show cause why sale should not be made ; decree of sale, 30 Section 22. Combination of rule to accept or refuse with rule to show cause why sale should not be made 347 31 Section 23. Sales for the purpose of distribution, on petition of all parties interested, 32 (a) In general 32 (b) Lands in different counties, 348 33 Section 24. Appointment of trustee to make sale,.. 34 Section 25. Bond of executor, administrator, or trustee making sale, 35 Section 26. Discharge of liens by sale 36 Section Zj. Recognizance by purchaser, 349 37 Section 28. No obligation to see to application of purchase money, 38 4 PARTITION ACT— Contents 1917 Pamphlet Laws Section 29. Widow's interest to remain in hands of purchaser, Section 30. Other undivided life interests to remain charged on real estate, Section 31. Appointment of trustee to hold prin- cipal of sum in which there is a life interest, 350 Section 32. Procedure where executor, administrator, or trustee becomes incapable, is removed, or dies, Section 33. Appointment of auditor to ascertain liens or incumbrances, Section 34. Account of executor, administrator, or trustee, 351 Section 35. Costs and counsel fees, (a) In general, (b) In cases of sale, Section 36. Private sales (a) When ordered, (b) Notice of sale (c) Setting aside sale, 352 Section 37. Lands in adjoining tracts in different counties, Section 38. Lands in different counties, but not in adjoining tracts, 353 (a) Where proceedings shall be brought,.... (b) Service of process and notices, (c) Selection of commissioners or jurors; compensation and mileage (d) Sales, (e) Proceedings not specially provided for in this section, (f) Filing certified copies in other counties,.. Section 39. Recognizances in general, 354 (a) Ascertainment of amounts due, (b) Satisfaction, 1. Satisfaction of record, 2. Remedy for refusing to satisfy Section Number Herein 39 40 41 42 43 44 45 45 46 47 47 48 49 50 SI 51 52 S3 54 55 56 57 57 58 58 59 PARTITION ACT— Suci'ioN i (a) 5 191 7 Section Pamphlet Number Laws Herein Section 40. Protection of interests of persons not in esse. 60 Section 41. Partition docket, 3SS 61 Section 42. Partition index, 62 Section 43. Appeals, 63 Section 44. Short title section 64 Section 45. Repealer, 3SS-63 65 1. TITLE. An Act Relating to the jurisdiction, powers and procedure of the several orphans' courts in proceedings for the partition and valuation of real estate, and for the sale of real estate for the purpose of distribution, and the fees, costs and expenses therein. 2. JURISDICTION OF ORPHANS' COURT.— In general. Section i. (a) Be it enacted by the Senate and House of Rep- resentatives of the Commonwealth of Pennsylvania in General assembly met, and it is hereby enacted by the authority of the same, that the orphans' court of each county of this Common- wealth shall have jurisdiction, but not exclusive jurisdiction,'^ in the partition and valuation of real estate, within the county, of Note. — This is a new section combining the provisions of the various acts relating to the jurisdiction of the Orphans' Court in partition. The derivation of the different clauses is shown in the special notes below. Special Notes to Section i. ^Derived from Section i of the Act of April 21, 1846, P. L. 426, 3 Purd. 3451, which provides that the jurisdiction in cases of intestacy shall not be exclusive, and the proviso to Section 4 of the Act of April 13, 1840, P. L. 320, 3 Purd. 3424, which makes similar provision as to cases of testacy. It seems unnecessary to reenact the provision of those acts that nothing therein contained shall be construed to prevent any of the parties interested in the real estate from proceeding by action in partition (or bill in equity) as theretofore. 6 PARTITION ACT— Secwon i (a) any decedent, testate^ or intestate,^ whether such decedent was at the time of his death seized or possessed of such real estate solely or as tenant in common or joint owner with any other person or persons,* and whether or not the surviving spouse of such de- cedent shall elect to take against his or her will,^ and notwith- standing there may be a limitation of an estate or interest in the premises or some part thereof, to a person or persons not in ex- istence f and several undivided interests in any premises, derived from different ancestors by descent or devise, may be parted or valued in one proceeding in said court:' Provided, That such ^This covers the provisions of Section 4 of the Act of April 13, 1840, P. L. 320, 3 Purd. 3424; Section i of the Act of May 9, 1889, P. h. 146, 3 Purd. 3424 ; and Section 10 of the Act of April 10, 1849, P. L- S96, 3 Purd. 3424, so far as they confer jurisdiction in cases of testacy. The Act of 1840 gave jurisdiction where the parties interested or any of them were minors or the course of descent was not altered by the provi- sions of the will. The Act of 1889 gave jurisdiction in all cases of testacy, without respect to the minority of the parties or their relationship to the testator. The Act of 1849 gave jurisdiction where the whole or part of the real estate was devised to two or more children. ^This embodies the jurisdictional provision of Section 36 of the Act of March 29, 1832, P. L. 201, 3 Purd. 3418. This was Section 38 in the draft of the Commissioners of 1830, and was founded upon Section 22 of the Act of April 19, 1794, 3 Sm. L,. 143, with various changes. The Commissioners remarked that in this and the ten succeeding sec- tions they had collected all the provisions relating to partition in the orphans' court which were scattered in various acts, and had endeavored to consolidate and arrange them in order. *This covers the first part of Section i of the Act of March 13, 1847, P. L. 319. 3 Purd. 3424. ^This covers the jurisdictional provision of Section 2 of the Act of April 20, 1869, P. L. 77, 3 Purd. 3423, and that part of Section i of the Act of May 9, 1889, P. L. 146, 3 Purd. 3424, which provides that the or- phans' court shall have jurisdiction in all cases of testacy, without respect to "the fact of a widow's election not to take under the will." 'These words have been added to make it clear that the orphans' court has jurisdiction in such cases. Section I of the Act of June 3, 1840, P- Iv- 593. and Section 9 of the Act of April 5, 1842, P. L. 234, 3 Purd. 3412-13, refer only to "writs of partition." The second proviso of the Act of 1840 is covered by Section 40 of this draft. (See 60, infra.) The first proviso, as amended by the Act of 1842, is embodied in Section 2, infra. (See 4, infra.) 'This incorporates the provision of Section i of the Act of February 26, 1869, P. L. 4, 3 Purd. 342s, which was passed because of the decision in Snyder's Appeal, 36 Pa. 166, that the estate of one decedent only could be partitioned in a proceeding in the orphans' court, which had no juris- diction where the tract was held in common by the same parties, partly as devisees of their father and partly as heirs of their mother. PARTITION ACT— Section i (o), (&) 7 court shall not have such jurisdiction during the continuance of any life estate in the whole of such real estate.* *The proviso is new, being declaratory of the existing law : Lee's Estate, 13 Phila. 291. Where the decedent had, during his lifetime, sold and conveyed certain real estate of which he was the owner in fee, without the joinder of his wife, the court dismissed the widow's petition for the partition thereof after his death, stating, with regard to the purview and scope of the act "The very words of the enactment show that it applies only to the real estate of which the decedent died seized, and excludes from its purview and operation lands of which the decedent did not die seized. The language of the act is so clear that even a layman can understand the same and no canons of construction need be introduced to interpret its purposes or enactments." Per Hughes, P. J., in Stockdale's Estate, 29 Dist. 1013. (Note. This case contains a very extensive discussion of the previous statutes relating to partition in the orphans' court out of which the Act of 1917 was constructed.) "The Act of March 13, 1847, P- L- 3I9, declares 'The jurisprudence of the several orphans' courts of this Commonwealth, in the partition and valu- ation of real estate, shall extend to any undivided interest, in fee simple, in any lands or tenements of which any person has died or shall hereafter die seized or possessed, as tenant in common or joint owner, with any other person or persons, as fully as if such decedent were solely seized or possessed thereof at the time of his or her death.' This is reenacted in Section i of the Act of June 7, 1917, P. L. 337. The jurisdiction of the common pleas being concurrent with that of the orphans' court in par- tition proceedings, what is necessary in the one is requisite in the other. In partition, whether in the common pleas or in the orphans' court, it is incumbent on the party instituting the proceeding, if practicable to embrace the whole of the undivided realty within the jurisdiction or power of the court. There cannot be inquisitions upon it by parcels': Stickles vs. Oviatt, 212 Pa. 219. It was clearly practicable to include all of the real estate of the common ancestor in one bill in the court below, and it correctly so held." Opinion of the court in Gilpin vs. Brown, 268 Pa. 398; 112 Atl. 124. 3. COAL AND TIMBER LANDS. (&) Partition may be made under this act of lands and coal- rights therein, and of lands and timber-rights thereon, of any decedent, whether the rights of all the parties be co-extensive with the whole or not ; and whether the rights of some of them extend only to the lands and part of the coal therein, or only to the land and part of the timber thereon, or only to an undivided interest in the land, or in the coal therein or in the timber thereon ; and any person having an interest as herein set forth may compel 8 PARTITION ACT— Sections i (6)-2 partition of the entire tract of land and coal, or land and timber, provided said coal or said timber has not been entirely severed so as to constitute a separate estate. Note.— This is Section i of the Act of May 6, 1915, P. L. 269, 6 Purd. 7052, amending Section 3 of the Act of May 14, 1874, P. L. 156, 3 Purd. 3449. In the first line, "this act" has been substituted for "'existing laws." The repeal of the acts mentioned is recommended only so far as they relate to the orphans' court. 4. PETITIONERS. Si;cTi0N 2. The jurisdiction of the orphans' court under this act shall be exercised on the petition of the surviving spouse of the decedent, of any heir of the decedent in a case of intestacy, or of any devisee having an interest in the real estate in question in a case of testacy, whether the interest of such person be vested in possession or in remainder, or of any person having a life interest in an undivided share of such real estate, or of any alienee or devisee of any party in interest. If the party be a weak- minded person for whom a guardian has been appointed, or a minor, lunatic or habitual drunkard, the petition shall be filed by the guardian or committee of such party. Note. — This is founded on part of Section 36 of the Act of March 29, 1832, P. L. 201, 3 Purd. 3418. That section relates only to cases of intestacy and provides for application by the widow or any lineal descend- ant. It is now extended to include a surviving husband and collateral heirs, parties entitled in remainder, and alienees or devisees of parties in interest. Provision is also made for the cases of lunatics, etc., as well as minors. This covers the provisions of Section i of the Act of March 22, 1865, P. L. 31, 3 Purd. 3450, so far as they relate to partition in the orphans' court. The provision as to life tenants of undivided shares corresponds to the Acts of 1840 and 1842, referred to in Note 6 to Section i (0) supra. (See 2 supra.) Section 46 of the Act of March 29, 1832 (P. L. 202), 3 Purd. 3432 reads : "When the decedent leaves no lineal descendants, the like proceedings shall be had in all respects, on the application of the persons in whom the estate shall vest in possession." This is covered by the present section of the new draft. Under Section 46 it was held that jurisdiction was conferred only when the application was made by those in whom the estate vested in possession, and a collateral heir, entitled in remainder only, had no standing : Negley's Estate, 23 Pitts. L. J. 41 ; Deshong's Estate, 6 Del. Co. 519. Under the revised Intestate Act, collateral heirs will not take if there are any lineal descendants, and when collateral heirs do take their interests will vest at once, since the life estates of surviving spouses and of parents are abolished. PARTITION ACT— Sections 2-3 9 Section i of the Act of June 26, 1895, P. L. 381, amended by the Act of June 10, 1901, P. L,. 553, 3 Purd. 3450, and Section 2 of the Act of June 26, 189s (P. L. 381), 3 Purd. 3451, provide for the appointment of a com- mittee ad litem for lunatic defendants "in all actions or proceedings in partition, and in all other actions and proceedings whatsoever, either at law, in equity or in the orphans' court." It seems unnecessary to repeat these provisions in the Partition Act. Section 8 of the Act of April 24, 1843, P. L. 360, 3 Purd. 3434, pro- viding a method for securing, before partition, the widow's dower interest in property which was owned by the decedent in common or coparcenary with others, is recommended for repeal as unnecessary, in view of the provisions of Sections 2 and 12 (see 16 infra) of this draft. The local Act of February 13, 1867, P. L. 160, 3 Purd. 3435, provides that in all cases of testacy, on the petition of the widow or of her personal representative, the court shall have power to appoint com- missioners or award an inquest for the purpose of making partition or valuation of the dower of the widow. This act relates to York and Fayette Counties. See form 56. One having at least a life estate, if not a fee, under a will disposing of an undivided fourth interest in certain real estate, is a proper party to petition the court for partition under this section of the act. Klump's Estate, 50 Pa. C. C. 99, 29 Dist. 1004. A petition for an inquest in partition under this section of the act will be dismissed where the guardian of the estate of minor heirs or devisees has not been joined. A petition by a remaining trustee for a citation directed against the parties in interest, to show cause why an inquest in partition should not be granted, whereunder a citation was awarded directed against two children who were of age and against no one else, which children in their answer aver that a guardian appointed for three other children who were minors had not been made a party to the pro- ceedings, was dismissed. Herdle's Estate, 29 Dist. 817. 5. CITATION. Section 3. On such petition, supported by oath or affirmation, the court may award a citation, returnable at a day certain, not less than ten days after the issuing thereof, directed to all the parties in interest other than the petitioner or petitioners, to show cause why an inquest in partition should not be awarded. Such citation shall be served in the manner provided by law for the service of other citations in the orphans' court. Note. — This is a new section, modeled on Clause i of Section S7 of the Act of March 29, 1832 (P. L. 190) 3 Purd. 3373. It seems unnecessary to repeat in this act the provisions as to service, publication, etc., contained in the Orphans' Court Act. 10 PARTITION ACT— SECTIONS 4-S-6 6. PARTIES RESPONDENT ; NOTICE TO UNKNOWN PARTIES. Section 4. All parties in interest, including those entitled in remainder, shall be named in the petition, citation, decree and notices, when known; but if it shall appear, on oath or affirma- tion, that the names or residences of any of the parties are unknown to the petitioner for the partition, the orphans' court shall have the power to direct such notices as shall appear to the court to be reasonable and proper to be given to such parties by publication, describing the parties, as far as practicable; and the proceedings shall be as effectual, to all intents and purposes, as if all the parties had been named in the proceedings. Note.— This is Section 2 of the Act of April 14, 183S, P. L. 275, 3 Purd. 3425, extended to cases of testacy as well as intestacy. The following words have been inserted : "including those entitled in remainder," and "citation," and the words "in the public newspapers" have been omitted. 7. SERVICE OUTSIDE OF STATE. Section 5. Where any of the parties in interest reside outside of the commonwealth of Pennsylvania and their places of resi- dence are known, the court may, in its discretion, authorize any citations or notices provided for by this act, to be served upon them personally or by registered mail, or direct publication thereof. Note. — This is a new section. Where the residence of a party is known and he can be personally served, constructive notice by publication is not only unnecessarily expensive but futile. The proceeding being one in rem, there can be no objection to service outside of the state which would not apply equally to service by publication. 8. APPOINTMENT OF COMMISSIONERS, OR AWARD OF INQUEST. Section 6. If, on the return of such citation, no answer or an insufficient answer be filed, or if, after hearing on petition, answer, replication and proofs, it shall appear proper, the court may appoint, on the agreement and nomination of the parties, three or more commissioners to divide or value the real estate de- scribed in the petition, with the same effect as a sheriff's inquest for the same purpose, or, if the parties cannot so agree, may PARTITION act-Sections 6-7 n award an inquest to make partition among the parties in accord- ance with their respective interests, the inquest to consist of three men. Note. — 'The first three lines, to the word "proper," are new. The provision as to awarding an inquest is taken from Section 36 of the Act of March 29, 1832, P. L. 201, 3 Purd. 3418, except that the words "among the parties in accordance with their respective interests" have been in- serted, to cover cases where the interests are unequal, as was done by Section 10 of the Act of April 10, 1849, P. L. 596, 3 Purd. 3424, which related only to devises to two or more children, and is now recommended for repeal. The provision of Section 36 of the Act of 1832 for the appointment of "seven or more disinterested persons" has been omitted, and the provision of Section 4 of the Act of April 27, 1855, P. L. 369, 3 Purd. 3452, sub- stituted. The Act of May 1, 1879, P- L. 40, 3 Purd. 3452, reduced the number of jurors from twelve to six. The number is now reduced to three. The Acts of 1855 and 1879 apply to proceedings in the common pleas as well as in the orphans' court and are recommended for repeal only so far as they relate to the latter court. 9. COMPENSATION AND MILEAGE OF COMMIS- SIONERS AND JURORS. Section 7. The compensation of such commissioners, and of the jurors when an inquest is awarded, shall be fixed by the court, but shall not exceed five dollars a day each, for each day engaged in making such partition and valuation, unless the parties interested shall agree in writing to a larger compensation. Such commissioners and jurors shall also receive in addition to their daily pay three cents per mile circular for each mile necessarily traveled by them, counting from the place at which said com- missioners or jurors first met. Note. — Section 4 of the Act of April 27, 1855, P. L. 369, 3 Purd. 3452, allowed the commissioners three dollars a day and did not provide for mileage. Section 2 of the Act of April 17, 1856, P. L. 386, 3 Purd. 3455, allowed the jurors one dollar per day and mileage. The Commissioners consider that it is proper to fix the same maximum compensation and to allow mileage in both cases. The increase to five dollars a day is justified in cases involving the services of men experienced in the valuation of real estate. The amount of the compensation is left to the discretion of the court in every case. 12 PARTITION ACT— Sections 8-9 (o), (6) 10. MAKING OF PARTITION BY COMMISSIONERS, OR INQUEST. Section 8. The commissioners or inquest shall, if the same can be done without prejudice to or spoiling the whole, make partition of the real estate in purparts among the parties entitled in accordance with their respective interests, whether such inter- ests be equal or otherwise, and shall make return thereof to the court. Note. — This is a new section, declaratory of the existing law and introduced for the sake of completeness. The provision for cases where the interests of the parties are not equal is suggested by the second clause of Section 10 of the Act of April 10. 1849, P. L. 596, 3 Purd. 3424, which relates only to devises to two or more children in unequal proportions. The iirst clause of that section is covered by Section I (see 2 supra) of the present draft, and the last clause is a validating provision. The section is recommended for repeal. 11. ACTION OF COMMISSIONERS OR INQUEST, WHERE EQUAL PARTITION CANNOT BE MADE; WHERE NO DIVISION IS POSSIBLE; VALUATION OF THE WHOLE. Section 9. (a) When any such estate cannot be divided among the parties entitled thereto without prejudice to or spoiling the whole, the said commissioners, or the said inquest, as the case may be, shall make and return a just appraisement thereof to the court. Note. — This is the first part of Section 37 of the Act of March 29, 1832, P. L. 201, 3 Purd. 3427, which was derived from Section 22 of the Act of April 19, 1794, 3 Sm. L. 143. It is now changed so as to apply in all cases and not merely to cases of intestacy where the real estate descends to the widow and lineal descend- ants. The word "commissioners" has been substituted in line 3 for "seven or more persons." The remainder of Section 37 of the Act of 1832 is covered by subse- quent sections of this draft. 12. PURPARTS UNEQUAL IN VALUE. (b) When equal partition in value, or partition in accordance with the respective interests of the parties, cannot be made by the said commissioners or the said inquest, they shall make a just appraisement of the respective purparts or shares into which they may divide the estate; and the court shall award that one PARTITION ACT— Sections (6), (c)-io 13 or more of the purparts or shares shall be subject to the pay- ment of such sum or sums of money as shall be necessary to equalize the value of the said purparts, according to the said appraisement thereof ; which sum or sums of money shall be paid or secured to be paid, by the several persons accepting such purparts, in the manner prescribed in Section 17 hereof. (See 23-5, infra.) Nom— This is Section 38 of the Act of March 29, 1832 (P. L. 190) 3 Purd. 3430, which was new in that act and was intended to provide for the case "where partition can conveniently be made, but the value of the shares cannot be equal." The words from "or" to "parties" in lines i and 2 have been added, to conform to Section 8 of this draft. (See 10, supra.) The second clause of the section, relating to the order of allotment of the purparts, is omitted here, being covered by Section 13 (see 17-19, infra) of this draft. 13. PURPARTS NOT EQUAL IN NUMBER TO NUM- BER OF PARTIES ENTITLED. (c) When such estate cannot conveniently be divided into shares equal in number to the number of parties entitled, the said commissioners or the said inquest shall make a just appraisement of the respective purparts or shares into which they may divide the estate ; and the parties to whom such shares shall be awarded, or some one in their behalf, shall pay or secure to be paid to the other parties interested, their respective parts of the value thereof, in the manner prescribed in Section 17 hereof. See 23-25 infra.) NoTB. — This is Section 39 of the Act of March 29, 1832, P. L. 190, 3 Purd. 3431, which was derived in substance from Section 22 of the Act of April 19, 1794, 3 Sm. L. 143. In line 2, "shares equal in number to the number of" has been substituted for "as many shares as there are," the intention being to cover cases where the number of purparts exceeds the number of parties, as well as where there are fewer purparts than there are parties entitled. The portion of the section dealing with the allotment of the purparts is omitted here, being covered by Section 13 (see 17-19, infra) of this draft. 14. VALUATION OF UNDIVIDED INTEREST OF DECEDENT. Section 10. Where the decedent shall die seized or possessed, as tenant in common or joint owner, of any undivided interest in 14 PARTITION ACT— Sections io-ii fee-simple in any lands or tenements, the commissioners or inquest shall value and return such interest, undivided, in all cases; and if such decedent had other real estate, such interest shall be valued and returned, either by itself, or in connection with some other portion of such decedent's real estate, as one of the purparts or shares into which they shall divide the whole real estate; and upon the return thereof, the proceedings shall be as in other cases. NoTB. — This is the last part of Section i of the Act of March 13, 1847, P. L. 319, 3 Purd. 3424, the first part of which is covered by Section i (see 2 supra) of the present draft. In line 8, ''valued" is omitted before "'as one of." Under this section of the act it is incumbent on the party instituting the proceedings, if practicable, to embrace the whole of the undivided realty within the jurisdiction or power of the court. There cannot be inquisitions upon it by parcels. Where a person dies seized in severalty of three tracts of lands, and of undivided interests in two others, it is error to file one bill for the partition of the land held in severalty, and another for that of the undivided interests. Gilpin v. Brown, 268 Pa. 398, 112 Atl. 124. 15. RULE TO ACCEPT OR REFUSE THE WHOLE OR PURPARTS AT THE VALUATION. Section ii. In all cases of appraisement or partition men- tioned in Sections 8 and 9^ of this act, the orphans' court shall on application, grant a rule on all persons interested, including those interested in remainder, to come into court, at a certain day to be fixed by the court, to accept or refuse the estate, or a share or portion thereof, as the case may be. A copy of such rule shall be served upon each party personally, ten days before the return thereof, in case such party resides within the county, or if any party shall reside outside the county the court may, in its discretion, authorize service of such rule upon him personally or direct such publication thereof as shall appear to the court to be reasonable and proper. NoTB. — This is founded on Section 40 of the Act of March 29, 1832 (P. L. 190), 3 Purd. 3431. Provisions as to service of the rule similar to those in Section 4 of this draft have been inserted, and Section 8 of the Act of April 7, 1807, P. L. ISS (4 Sm. L. 398, at p. 401), 3 Purd. 3431, is recommended for repeal. i(See 10-13 supra.) PARTITION ACT— Sections 11-12-13 (o) 15 In line 4, "including those interested in remainder" has been inserted, thus incorporating the provisions of Section 46 of the Act of 1832, 3 Purd. 3432, on this subject, and making them apply to cases of testacy as well as intestacy. In line 5, "fixed by the court" has been substituted for "by them to be fixed," because the latter words might well be taken to refer to the parties and not to the court. Section 40 of the Act of 1832 was founded on Section 8 of the Act of 1807, supra, the Commissioners remarking that they had made the pro- visional general, "applying it to all cases of appraisement or partition mentioned in the preceding sections." Section 40, however, applies only to the cases mentioned in the preceding section; the draft was the same. The section is, therefore, confined to the cases mentioned in Section 39 of the Act of 1832, namely, cases where the estate cannot conveniently be divided into as many shares as there are parties interested. It is now made to include cases where partition is made, where no division is possible, and where the purparts are of unequal value. The provTsion as to service or publication is made uniform with that in Section 17 (6) (see 24 infra) of this draft. 16. BIDS ABOVE VALUATION. Section 12. In all cases of partition of real estate now pending or hereafter to be instituted, in any orphans' court, wherein a valuation shall have been made or shall be made of the whole or parts thereof, the same shall be allotted to such one or more of the parties in interest, whether entitled in possession or in remainder or to an undivided interest for life, and including the surviving spouse of the decedent, who shall, at the return of the rule to accept or refuse to take at the valuation, offer in writing the highest price therefor above the valuation returned; but if no higher offer be made for such real estate or any part thereof, it shall be allotted or ordered to be sold as herein provided. Nore.— This is part of Section i of the Act of May 8, 1909, P. L. 489, 6 Purd. 7052, except that the words from "whether entitled" to "de- cedent" have been substituted for "widow." The section was an amendment of Section 10 of the Act of April 22, 1856, P. L. S32, 3 Purd. 3453, which had previously been amended by the Act of June i, 1907, P. L. 364. It applies to the common pleas as well, and is to be repealed only so far as it relates to the orphans' court. 17. ALLOTMENT IN THE ABSENCE OF BIDS; OR- DER OF CHOICE. Section 13. (a) When no bid above the appraisement of such real estate or any part thereof shall be made as provided in i6 PARTITION ACT— Section 13 (a) Section 12^ of this act, the court may order such real estate or part thereof to and among the parties in interest, including those entitled in remainder, as follows : First. — To the surviving spouse of the decedent if entitled, under the intestate law or under the will of the decedent, to a share of such real estate or part thereof in fee. Second. — To the other parties in interest, in the order of their seniority in age. Note. — This clause is new. The inclusion of parties entitled in re- mainder covers the provision on that subject in Section 46 of the Act of 1832, 3 Purd. 3432. The inclusion of the surviving spouse, entitled in fee, has been inserted to cover cases coming under the operation of the new Intestate Act and cases where the surviving spouse takes an interest in fee under the will of the decedent. The provision as to seniority in age is substituted for the provisions of Section 37 of the Act of 1832, 3 Purd. 3427, which related only to cases of intestacy, and was derived from Section 22 of the Act of April 19, 1794. 3 Sm. L. 143, and of Section 46 of the Act of 1832, 3 Purd. 3432. Section 37 of the Act of 1832 applied only to cases where no partition could be made. Section 38, 3 Purd. 3430, provided for allotment of pur- parts where the value of the purparts was unequal ; and Section 39, 3 Purd. 3431, covered the case where the purparts were fewer in number than the parties entitled. The present section of this draft covers all these cases. The other portions of Sections 37, 38 and 39 of the Act of 1832 have been incorporated in Section 9 of this draft. (See 11-13 supra.) Section 37 of the Act of 1832 provided for award to the eldest son or if he was dead to his children, if any, in the order of their birth, and preferring males to females, and in like manner, to his other lineal descendants in the same order, and then to the second and other sons and their descendants, and finally to the daughters and their descendants in the same manner. Section 46 of the Act of 1832, provides that "when the decedent leaves no lineal descendants, the like proceedings shall be had in all respects, on the apphcation of the persons in whom the estate shall vest in posses- sion." Whether this means that the same order of priority is to be followed as among lineal descendants seems not to have been decided. Section 8 of the Act of April 4, 1797, 3 Sm. L. 296, covered the case of the brothers and sisters. The Commissioners are of opinion that it is better to adopt the simple rule of seniority of age in all cases, whether the persons entitled are lineal descendants or other relatives of the decedent taking under the Intestate Law, or persons taking under his will, who may or may not be related to him. '(See 16 supra.) PARTITION ACT— Sections 13 (6), (c)-i4 17 18. OFFER TO NEXT IN SUCCESSION WHERE PARTY ENTITLED FAILS TO APPEAR OR RE- FUSES TO TAKE. (b) In case the party entitled to a choice do not come into court, in person or by guardian or committee, or attorney duly constituted, or in case he shall refuse the same, a record shall be made thereof, and the court may and shall direct the same to be offered to the next in succession, according to the rules provided in clause (a) of this section. NoTB. — This is taken from the last part of Section 40 of the Act of 1832, 3 Purd. 3431. 19. ELECTION TO TAKE REAL ESTATE, OR SHARE THEREOF, POSTPONES PARTY AS TO OTHER SHARES, OR AS TO REAL ESTATE IN OTHER COUNTY. (c) In any case where a party has elected to take the real estate of a decedent in one county, or any share thereof, if divided into shares, such party shall not have the right of preference or election to take the real estate or any share thereof in any other county, or any other share in the same county, until all the other parties shall have neglected, after due notice, or refused to take the same at such valuation. Note. — This is Section 45 of the Act of March 29, 1832, P. L. 190, 3 Purd. 3432, with the substitution of ''a party" for "one of the heirs of a decedent." The section was founded on Section 9 of the Act of April 7, 1807, P. L. 155, 4 Sm. L. 398 at p. 401, 3 Purd. 3447, which is recommended for repeal. 20. PERMITTING RESIDUE OF PREMISES TO RE- MAIN FOR PARTIES NOT APPEARING. Section 14. The orphans' court having jurisdiction in any case of partition shall have power, wherever it shall appear ad- visable and proper, to cause the share or shares of the party or parties appearing in court to be allotted and assigned to them, and to permit the residue of the premises to remain for the person or persons entitled thereto, and subject to a future partition among them, if more than one person be so entitled. Note. — This is Section 10 of the Act of April 25, 1850, P. L. 571, 3 Purd. 3453. That section applies to the common pleas as well, and is recommended for repeal only so far as relates to the orphans' court. 2 i8 PARTITION ACT— SecrioN 15 21. ALLOTMENT TO WIDOW AS HIGHEST BIDDER. Section 15. Where the real estate, or any part thereof, shall be allotted to the widow as the highest bidder, two-thirds of the purchase money thereof, in cases where by existing laws the widow is entitled to a dower of one-third in the real estate, and one-half of the purchase money thereof, in cases where by exist- ing laws the widow is entitled to a dower of one-half in the real estate, shall be paid to those entitled thereto, as provided by law ; the remaining one-third or one-half of such purchase money as the case may be, shall be paid to a trustee or trustees to be appointed by the court, which trustee or trustees shall give bond in double the amount to be received; the trustee or trustees as aforesaid, shall pay semi-annually, in lieu of dower, the interest on said one-third or one-half of the purchase money, as the case may be, to the widow during her life, and at her death, the said trustee or trustees shall pay the purchase money to such persons as are entitled by law thereto. NoTJi. — This is the remainder of Section i of the Act of May 8, 1909, P. L. 489, 6 Purd. 7052. See note to Section 12 of this draft. (See 16 supra.) The section as it stands will cover cases of widows of persons dying before the new Intestate Act goes into effect. "Shall pay semi-annually" has been substituted for "be paid annually.'' Semi-annual payments are recommended for the convenience of the widow. The Act of June i, 1907, P. L. 364, read "pay annually." The words "be paid annually," which are obviously incorrect, were intro- duced in the amendment of 1909, presumably by inadvertence. The fact that the Orphans' Court Partition Act of 1917, (P. L. 338) in Sections 15, 18 and 29 appears to concede to the widow a lesser estate in lands of the decedent than that conferred by the Intestate Act of 1917 (P. L. 431) approved the same day, does not in any way affect the quantum of the estate taken by the widow under the latter act. If there were any conflict between the two Acts, the Intestate Act must govern as to the interest taken, the Partition Act having to do merely with procedure, and the enforcement of rights conferred by the Intestate Act. But the alleged conflict is only apparent, and the references in the Partition Act to the life estate of the widow are evidently intended to refer to estates of persons dying prior to the Intestate Act of 1917. "The cited portions of the said Orphans' Court Partition Act of 1917, P. L- 337 (is. 18 and 29) do not and are not designed to, diminish such fee simple share, part or interest so prescribed for the widow in and by the said Wills Act and Intestate Act. "It is the Intestate Laws of the commonwealth which determine all matters pertaining to the descent and inheritance of estates of decedents, PARTITION ACT— Section is 19 fixing the character, kind, quantity and amount of the interests or shares in decedents' real and personal property which shall pass to and vest in surviving spouses and kinsmen. The Partition Acts merely provide the method for enforcing the rights so conferred by the Intestate Acts. Hence, it follows that on general principles, were there indeed a clash or conflict between the provisions of the Intestate Act of 1917, P. L. 429 and of the Orphans' Court Partition Act of 1917, P- L- 337, on a matter of quantity, size, amount of shares or interests of a decedent's estate to descend or vest, the latter statute (merely prescribing procedure) would of necessity, yield to the former statute as to matters so lying exclusively within the scope and province of the said Intestate Act. However, the respondent, in its answer, has not directed our attention to or shown that there really exists any clash or conflict between the two statutes under consideration. By its express terms, the Intestate Act of 1917, P. L. 429 becoming operative and effective on December 31, 1917, is made to apply to estates, real and personal of all persons dying intestate on or after the said day so designated ; expressly providing that as to the estates, real and personal, of persons dying before the day designated, the existing laws should remain in full force and effect. Under Section 1 of the Act of April 8, 1833, P. L. 316, which applies to and controls the devolution of estates of intestates dying before December 31, 1917, a surviving widow was entitled to certain interests in her husband's real estate for life only, to wit, so-called statutory dower, i. e. a life estate in a third or a half part of such lands, depending on whether the decedent had left any children or issue. The Intestate Act of 1917, P. L. 429 gives the widow of an intestate dying on or after December 31, 1917, not statutory dower as under the old law, but certain interests in fee simple in the decedent's real estate, to wit, an undivided one-third part thereof or an undivided half part thereof or more, depending on whether or not the decedent leaves children or issue, and if so, the number thereof. The Orphans' Court Partition Act had to be drafted by the law makers to meet the circumstances and requirements of estates of all intestates, to wit, those dying before, as well as those dying after December 31, 1917, for such Act was to apply to estates of decedents entirely irrespective of the dates of their respective deaths. Now, as to widows of intestates dying after December 31, 1917, no special mention of the shares of such widows therein was in such act necessary; for, thereunder surviving spouses taking shares in fee, such shares are of precisely the same character and quality as, and, therefore, fall in the same category with the other shares and interests vesting in the decedent's descendants or collateral kinsmen. The said Act, however, had to make and preserve special provision for the statutory dower of widows of husbands dying prior to December 31, 1917, which circumstance accounts for and explains the use of the pointed out language appearing in Sections 15, 18 and 29 of the said Act. The purpose and necessity for such provisions and language is manifest, to wit, being designed and required to provide for the life interests of widows in estates of intestates dying before December 31, 1917, and in estates of testates dying before said date, where the widows elect to take against the wills of their respective husbands. Accordingly we reach the 20 PARTITION ACT— Sections is-i6-i7 (o) conclusion that there exists no clash or conflict between the provisions of the Orphans' Court Partition Act of 1917, P, L. 337 and the Intestate Act of 1917, P. L. 429 ; at least, as to any matter to which the petitioner has directed our attention. It is well to observe moreover in passing that did indeed such conflict exist between the provisions of the two statutes under con- sideration, the provisions of the Orphans' Court Partition Act of 1917, P- L- 337, aside from its being a mere possessory action, would, for an- other important reason, be legally forced to yield to the pertinent pro- visions of the Intestate Act of 1917, P- L. 429 as to all matters within the scope of the last mentioned statute ; for, the latter Act, although approved the same day as the former Act became operative long after the said Orphans' Court Partition Act had become law; so that the Intestate Act thus later becoming operative, would automatically and of necessity supersede such provisions of the Partition Act, if any, in conflict with the provisions of the said Intestate Act." Per Hughes, P. J., in Dodd's Estate, I Wash. 236. 22. PARTITION TO BE FIRM AND STABLE AFTER PINAL DECREE. Section 16. Upon return made by commissioners appointed by agreement of the parties, or of the inquisition taken, or when the real estate or any purpart thereof is awrarded or allotted by the court, and a final decree is entered, the partition thereby made shall be firm and stable forever, subject only to the right of appeal. Note. — This supplies the last part of Section 36 of the Act of 1832, 3 Purd. 3418, which provides that on return by the commissioners or inquisition the court shall have power to give judgment that the partition thereby made be firm and stable forever. The provision of that section as to costs is covered by Section 35 of this draft (see 45-6 infra). 23. OWELTY; PAYMENT OR SECURITY. Section 17. (a) In every case provided for in Section 12 or Section 13 of this act\ the party bidding in or accepting the real estate, or some one on his behalf, shall pay to the other parties interested their proportional parts of the value of such estate, according to the amount of the bid, or the just appraisement thereof, made in manner aforesaid, as the case may be, or shall give good security by recognizance, or otherwise, to the satis- faction of the court, for the payment thereof, with legal interest, at such time or times as in the judgment of the court shall be to ^See 16-19, supra. PARTITION ACT— Section 17 (a), (b) 21 the advantage of those entitled to the estate; and the persons to whom or for whose use payment or satisfaction shall be so made, in any of the cases aforesaid, for the respective parts or shares of such real estate, shall be forever barred of all right or title to the same. Note. — This is the last part of Section 37 of the Act of March 29, 1832, P. L. 201, 3 Purd. 3428, extended to all cases covered by Sections 12 and 13 of this draft (see 16-19, supra) instead of those cases only which are covered by Section 13. The provision of Section i of the Act of May 8, 1876, P. L. 140, 3 Purd. 3432, has been substituted for the words "in some reasonable time," not exceeding twelve months, as the court may direct," after the words "with legal interest." Section i of the Act of 1876 is recommended for repeal. Where the bidder is ready and willing to make payment to the parties in interest in full as soon as the necessary searches against the title can be procured, exceptions relating to making payment on account or the entry of security will be dismissed with leave to apply to the court for a further order if payment in full is not made within sixty days. Battersby's Estate, 29 Dist. 221. 24. ENFORCEMENT OF PAYMENT BY NON-RESI- DENT. (b) Where the court shall decree any share or shares to any person not residing within this commonwealth, with the pay- ment of owelty annexed, it shall be lawful for the court, upon application made by any party lawfully interested in the same, to order a rule upon such party, his or her legal heirs or repre- sentatives, requiring the payment of said owelty, at such time and upon such terms and conditions as the court shall direct. If the said rule cannot be served within this commonwealth, the court may, in its discretion, authorize service of such rule upon him or them personally or direct such publication thereof as shall appear to the court to be reasonable and proper. Upon return and proof of service or publication as aforesaid, and upon refusal or neglect to comply with the said rule, the court may enforce the same by ordering a sale of such share or shares, for the pur- poses aforesaid, as in other cases of sales under this act. Note. — This is Section i of the Act of April 6, 1844, P- L. 214, 3 Purd. 3432. The provision as to service by publication in the Act of 1844 is by reference to Section i of the Act of March 26, 1808, P. L. 144, 4 Sm. L. S18, 3 Purd. 3408, which relates to actions of partition and provides for pub- lication in one daily newspaper of the City of Philadelphia as well as in a newspaper in the county where the land lies. The reference at the end of Section i of the Act of 1844 is to the Act of March 29, 1832. 22 PARTITION ACT— Sections 17 (6), (c)-i8 (o) Provisions for service outside of the state, similar to those in Section S (see 7 supra) of this draft, and for publication, as in Section 11 (see IS supra) have been added. 25. APPOINTMENT OF TRUSTEE FOR PARTIES WHO ARE UNKNOWN, OR CANNOT BE FOUND. (c) Wherever it shall appear that any party or parties, in whose favor a lien exists until payment be made to them of their respective shares of the money due from the party or parties to whom the real estate or any purpart thereof is awarded at the appraisement or at a price bid therefor above the appraisement, is or are unknown or cannot be found, the court shall have power to appoint a trustee to whom the shares of money due said un- known or other party may be paid, with power in said trustee, upon payment to him of said money, to satisfy said lien upon the proper records, whereupon the said land shall be freed and discharged from said lien. Such trustee shall first file a bond, to be approved by the court, conditioned for the faithful appli- cation of the money to him so paid, as aforesaid, according to the trust and order of court. It shall be the duty of the trustee to invest the said moneys in securities authorized by law. Note. — This is Section i of the Act of April 3, 1903, P. L. 151, 3 Purd. 34S4, except that the second proviso has been added. Section 2 of the Act of 1903 is a general repealer. The Act of 1903 applies also to proceedings in the common pleas and is recommended for repeal only so far as relates to the orphans' court. 26. WIDOW'S INTEREST; TO REMAIN CHARGED ON THE PREMISES. Section 18. (a) Should the widow of the decedent be living at the time of the partition and entitled to a life estate in one-half or one-third of the real estate under the intestate laws, or should such widow elect to take against the will of the decedent and thereby be entitled to such life estate, she shall not be entitled to payment of the sum at which her purpart or share of the estate shall be valued, but the same, together with interest thereof, shall be and remain charged upon the premises, if the whole be taken by one person, or upon the respective shares, if divided as hereinbefore mentioned, and the legal interest thereof shall be semi-annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs or assigns, holding the same, according to their respective portions, to the said widow, PARTITION ACT— SfiCTioN i8 (o), (6) 23 during her natural life, in lieu and full satisfaction of her dower at common law, and the same may be recovered by the widow by distress or otherwise, as rents in this commonwealth are recover- able. On the death of the widow, the said principal sum shall be paid by the persons to whom the said real estate shall have been adjudged, their heirs or assigns, holding the premises, to the persons thereunto legally entitled. Note.— This is Section 41 of the Act of March 29, 1832, P. L. 202, 3 Purd. 3433. with the insertion of language to make it apply only to cases of dece- dents dying before the new Intestate Act goes into operation, and the substitution of "persons" for "child or other descendant." The section was derived from Section 22 of the Act of April 19, 1794, 3 Sm. L. 143, and Section 6 of the Act of April 7, 1807, P. L. ISS> 4 Sm. L. 398 at p. 400. The latter section is printed in the Digests, but since it seems to have been supplied by the Act of 1832, its express repeal is now recommended. The fact that the Orphans' Court Partition Act of 1917 (P. L. 338) in Sections 15, 18 and 29 appears to concede to the widow a lesser estate in lands of the decedent than that conferred by the Intestate Act of 1917 (P. L. 429) approved the same day, does not in any way affect the quantum of the estate taken by the widow under the latter act. If there were any conflict between the two Acts, the Intestate Act must govern as to the interest taken, the Partition Act having to do merely with procedure and the enforcement of rights conferred by the Intestate Act. But the alleged conflict is only apparent, and the references in the Partition Act to the life estate of the widow are evidently intended to refer to estates of persons dying prior to the Intestate Act of 1917. Dodd's Estate, i Wash. 236. (See extract from opinion under Section 21, supra.) 27. CHARGING WIDOW'S INTEREST ON PARTICU- LAR PURPARTS. (b) When the real estate of any decedent shall consist of several dififerent tracts or pieces of land, and the same shall be adjudged to any of the parties entitled thereto, or ordered to be sold, by any orphans' court, such court shall have authority to decree that the share or purpart of the widow of such decedent in the whole of said real estate, where such widow is entitled to a life interest, together with the interest thereof, shall be and remain charged on one or more of the said tracts or pieces of land, in the manner and for the purposes now provided by law, and that the remaining tracts or pieces of land shall be wholly discharged from the share or purpart of such widow, or any part thereof : Provided, That the pieces or tracts of land, upon 24 PARTITION ACT— Sections i8 (6) -19-20 which such purpart or share shall be so charged as aforesaid, shall, in the opinion of such court, be fully sufficient to secure the payment of the principal and interest of such purpart or share: And provided further, That such widow shall have the same remedies for recovery of her interest as are provided in clause (a) of this section. Note.— This is Section i of the Act of January 7, 1867, P. L. 1367, 3 Purd. 343S, with the insertion of the words, "where such widow is entitled to a life interest," to show that the section will apply only to cases where the decedent has died or shall die before the new Intestate Act goes into effect. 28. OTHER UNDIVIDED INTERESTS TO REMAIN CHARGED ON REAL ESTATE. Section 19. Should any person other than the widow of the decedent be entitled, under the intestate laws, or should any person, including the widow of the decedent, be entitled under the will of the decedent, to a life interest in an undivided share of the real estate, the share of such tenant for life shall not be paid to him or her, but the same, together with interest thereof, shall be and remain charged upon the premises, if the whole be taken by one person, or upon the respective shares, if divided as hereinbefore mentioned, and the legal interest thereof shall be semi-annually and regularly paid by the persons to whom such real estate shall be adjudged, their heirs or assigns, holding the same, according to their respective portions, to the said tenant for life, during his or her natural life, and the same may be recovered by such life tenant as debts of like nature in this com- monwealth are recoverable. On the death of the life tenant, the said principal sum shall be paid by the persons to whom the said real estate shall have been adjudged, their heirs or assigns, holding the premises, to the persons thereunto legally entitled. Note. — This is a new section, making provisions for other undivided life interests similar to those made by Section 18 (a) (see 26 supra) for widows, except that the remedy for collection is made the same as the remedy for recovery of "debts of like nature.'' 29. DEDUCTION OF RENTAL VALUE FROM SHARES OF PARTIES WHO HAVE BEEN IN POSSES- SION. Section 20. In case of partition of real estate now or here- after held by two or more persons as tenants in common, where one or more of said tenants shall have been or shall hereafter be PARTITION ACT— Sections 20-21 25 in possession of said real estate, the parties in possession shall have deducted from their distributive shares of said real estate the proportional part of the rental value thereof to which their co-tenant or co-tenants are entitled for the time such real estate shall have been in possession as aforesaid. Note. — This incorporates so much of Section i of the Act of June 24, 1895, P. L. 237, 3 Purd. 3454, as relates to partition. The other part of the section gives a remedy for such rentals by action between co-tenants. The section is recommended for repeal only so far as relates to the orphans' court. Exceptions filed to a decree because it made no provision for the ascertainment of rental values of the premises allotted and the mesne profits of the business there conducted during the occupancy of the premises by one of the parties in interest were dismissed where there were no facts before the court upon which to base an appropriate finding and where, from facts assumed from argument of counsel there would seem to be no reason why the parties in interest should not be able to reach an amicable adjustment; with leave to apply by petition for necessary relief if later required. Battersby's Estate, 29 Dist. 221. 30. RULE TO SHOW CAUSE WHY SALE SHOULD NOT BE MADE; DECREE OF SALE. Section 21. Upon an appraisement or valuation of real estate made as provided in Section 9 or Section 10 of this act, should all the parties neglect, after due notice, as provided in Section 1 1 hereof, or refuse to take the same or any part thereof at the valuation, or to bid above the appraisement as provided in Sec- tion 12' hereof, the court shall, on the application of any one of the parties, grant a rule upon the other parties interested, to show cause why the estate, or part thereof, so appraised and not taken at the appraisement or bid for, should not be sold ; which rule shall be returnable at such time as the court, having respect to the circumstances of the case, may direct ; and service of such rule shall be made in the manner provided by law for the service of citations in the orphans' court. On the return of such rule, the court may, on due proof of notice to all persons interested, make a decree authorizing and requiring the executor or admin- istrator, as the case may be, to expose such real estate, or part thereof, to public sale, at such time and place, and on such terms as the court may decree : Provided, That the rule to show cause herein directed may be dispensed with by the court, on the i(See 11-16 supra.) 26 PARTITION ACT— Sections 21-22 application of all the parties in interest, if of full age and sui juris, and of the guardians or committees of such as are weak- minded persons for whom guardians have been appointed, minors, lunatics or habitual drunkards, for such decree ; and public notice of such sale shall be given by the person who is to make the sale, once a week for a period of three weeks before the day appointed therefor, by advertisement in at least one newspaper published in the county, if there be one, or, if there be none, then in an adjoining county; and in all cases, notice shall also be given by handbills, one of which shall be posted at a conspicuous place on the real estate proposed to be sold, and at least three of which shall be posted at three of the most public places in the vicinity of such estate; and in any case the court may, by general rule or special order, require such further notice as it shall deem advisable. Note. — This is Section 42 of tlie Act of March 29, 1832, 3 Purd. 3438, which was founded on Section i of the Act of April 2, 1804, P. L. 459, 4 Sm. L. 183-4, and Section 2 of the Act of March 26, 1808, P. L. 144, 4 Sm. L. 518-9, the provision for making the rule returnable later than the next regular session of the court being new in the Act of 1832. The changes now suggested are to modify the language so as to include cases where there is a division into fewer purparts than parties entitled (now covered by Section 7 of the Act of April 7, 1807, P. L. 155, 4 Sm. L. 398 at p. 400, 3 Purd. 3440), and cases of failure or refusal to take some purparts (now covered by Section i of the Act of April 15, 1845, P. L. 458, 3 Purd. 3440) ; to substitute "parties" for "heirs," in line 3 and other places ; to insert the provisions as to lunatics, etc. ; to substitute a new provision as to service of the rule; and to add, at the end, provisions for notice of sale similar to those in Section 16 (g) (see 438 infra) of the Fiduciaries Act. The Act of June 12, 1893, P. L. 461, 3 Purd. 3447, and the amendment of May 23, 1913, P. L. 304, 6 Purd. 7051, relating to sales of real estate for the purpose of distribution on petition of all parties in interest, are covered by Section 23 (see 32-3 infra) of the present draft. 31. COMBINATION OF RULE TO ACCEPT OR RE- FUSE WITH RULE TO SHOW CAUSE WHY SALE SHOULD NOT BE MADE. Section 22. In all cases of the partition or valuation of real estate, the orphans' court may, upon the application of any party in interest, instead of the separate rules herein provided for such cases, grant a rule upon the parties interested to appear, and accept or refuse the said real estate at the valuation, or, in case they or any of them should neglect or refuse to take and PARTITION ACT— Sections 22-23 (a) 2^ accept the same as aforesaid, show cause why the said real estate, or any part thereof, should not be sold. Note.— This is Section 2 of the Act of April 25, 1850, P. L. 569, 3 Purd. 3440, except that "any party in interest" is substituted for "any of the heirs of the decedent" after "the application of the widow," and "herein provided for" is substituted for "heretofore issued in," after "separate rules." 32. SALES FOR THE PURPOSE OF DISTRIBUTION, ON PETITION OF ALL PARTIES' INTEREST; IN GENERAL. Section 23. (a) Whenever any person shall die seized of real estate, and the parties in interest desire the same to be converted into money for distribution, it shall be lawful for the orphans' court of the proper county, in its discretion, upon the joint petition of the widow and heirs, or devisees, and the guardians or committees of such as are minors or under disability, in whom the real estate of the decedent shall have vested by descent or will, and legatees whose legacies are charged on said real estate, or the representatives of such as may be deceased or under disability, to order the executor or administrator, or a trustee to be appointed by said court, to make sale of said real estate. Such petition shall set forth the description of the property, the desire to have the same sold, and its estimated value according to the affidavits of two disinterested and competent persons, jind said petition shall be duly sworn to. Said order shall provide that, before making sale, the executor, administrator or trustee shall give bond, in double the estimated value of the said real estate, and shall proceed thereafter in all respects in the manner provided by this act in cases of the sale of real estate under ' proceedings in partition. The proceeds of such sale, after pay- ment of the expenses thereof, shall be distributed to and among those entitled thereto, the same as real estate. Such sale shall have the same effect in all respects as a public sale in proceedings in partition of real estate under this act. Note.— This is Section l of the Act of June 12, 1893, P. L. 461, 3 Purd. 3447, as amended by the Act of May 23, 1913, P. L. 304, 6 Purd. 7051, with further changes. The Act of May 14, 1874, P. L. 166, i Purd. 1120, relating to real estate valued at not more than one thousand dollars, is supphed by the Act of 1893 and should be repealed. The Act of 1874, however, has been fol- lowed in the new draft as to the provision that the petition shall set 28 PARTITION ACT— Suctions 23 (o), (&)-24 forth the estimated value of the property, and that this estimate shall be supported by the affidavits of disimerested persons. The Act of 1874 provided that the proceedings should be the same as those in cases of sales for payment of debts. The Commissioners con- sider that the reference to proceedings in partition is more appropriate. In the new draft, the words ''or devisees" have been inserted in line 6; the words "or under disability" have been inserted in line 11; the words "to be appointed by said court" have been inserted after "trustee" in line 12; and "estimated" has been substituted for "appraised" in line 19. The order of the clauses has also been altered for the sake of clearness. Where an intestate left him surviving no widow, and five minor children as his sole heirs at law, they having but one guardian, a petition by said minors, through such guardian, is their joint petition within the meaning of the act. Fogelsanger's Estate, 267 Pa. 321, no Atl. 172. 33. LANDS IN DIFFERENT COUNTIES. (b) When the lands, m respect to which a petition for sale shall be filed under the provisions of clause (o) of this section, shall lie in one or more adjoining tracts in different counties, or shall lie in two or more counties, but not in adjoining tracts, the proceedings shall be in the courts designated in Sections 37 and 38' of this act, respectively. Note. — This clause is new. i(See 50-56 infra.) 34. APPOINTMENT OF TRUSTEE TO MAKE SALE. Section 24. Whenever any real estate shall be ordered to be sold under proceedings in partition, the orphans' court is hereby authorized and required, in case of the neglect or refusal of the executor or administrator to execute such order, or in case there be no executor or administrator, or in case the court for any reason deems it advisable, to appoint some suitable person trustee for the purpose of making such sale, who shall be subject to the same restrictions, and have the same powers, and whose proceed- ings shall have the same effect, to all intents and purposes, as are provided in the case of such sales by executors or ad- ministrators. Note. — This is Section 44 of the Act of February 24, 1834, P- L. 81, 3 Purd. 3439, which was not included in the draft prepared by the Com- missioners of 1830. The words "or in case the court for any reason deems it advisable" have been inserted in order to confer upon the court a discretion which, it has been held, does not now exist : Arble's Estate, 161 Pa. 373. Under Section 24 of the Orphans' Court Partition Act of June 7, PARTITION ACT— Sections 24-25 29 1917, P. L. 337, which authorizes the court, if for any reason it deems it advisable, to appoint some suitable person trustee for the purpose of making a sale, the court will appoint an independent trustee for such purpose where the personal interests of the executors are in conflict with the interests of the petitioners to have the sale made promptly and bad feeling exists between them. Semble. The court may also make such appointment where the execu- tors have discharged their active duties and are fundi officii. "Under the will of Ann Whitaker, who died in 1890, a large part of her real estate remaining undivided, this partition proceeding was brought and has been so far pursued that it is now ripe for the appointment of a trustee to conduct the sale. "Parties representing about one-third interest have petitioned for the appointment of an independent trustee, alleging that reasons exist render- ing it advisable to appoint some suitable person other than the surviving executors. The master, in a careful and well-considered report, has found that these reasons exist. "It might well be argued that the executors are fundi officii (see Henson's Estate, 12 Dist. R. 326), for the reasons that they qualified over thirty years ago, their active duties have long since ceased and certain shares of the real estate have passed by the wills of the devisees of Ann Whitaker to their devisees, and, in turn, by the wills of the latter to certain of the present parties. "Upon reviewing the testimony taken before the master, we concur in his findings, are of the opinion that we should exercise the discretion permitted by the act and appoint some disinterested and suitable person to execute the order of sale." Henderson, J., in Whitaker's Est. 30 Dist. 814, 35 York gg. 35. BOND OF EXECUTOR, ADMINISTRATOR OR TRUSTEE MAKING SALE. Section 25. In all cases where the carrying out of any decree of the court under the provisions of this act shall involve the receipt of money, the court shall direct the person acting under the decree to file a bond to the commonwealth in a sufficient amount conditioned for the proper appHcation of all moneys to be received. Such bond shall inure to the benefit of all per- sons interested and be executed by two individual sureties or by one corporate surety, approved by the court. No such decree shall be executed until such bond, with sureties as may be re- quired, shall be filed : Provided, That where a corporation, duly authorized by law, shall be designated to carry out any such decree, the court may, in lieu of security as aforesaid, permit such corporation to enter its own bond without surety. Note.— This is a copy of Section 16 (/) cf the Fiduciaries Act. (See 437 infra.) See the note to that section. 30 PARTITION ACT— Sections 26-27-28 36. DISCHARGE OF LIENS BY SALE. Section 26. All public or private sales of real estate or of any part or purpart thereof, under the provisions of this act, shall have the eflfect of judicial sales as to the discharge of liens upon the real estate or part or purpart thereof so sold. Note. — This supplies Section 42 of the Act of February 24, 1834, P- L. 81, 3 Purd. 3439, which extended to sales in partition the provision of Section 21 of the Act of April 19, 1794, 3 Sra. L. 143, as to discharge of real estate from the debts of the decedent. 37. RECOGNIZANCE BY PURCHASER. Section 27. In all cases of sales of real estate under the pro- visions of this act, when the entire purchase money shall not be paid in cash, the purchaser or purchasers shall enter recognizance in the orphans' court, with sufficient security, to be approved by said court, for the payment of the purchase money, or any bal- ance thereof, over and above the costs and expenses of said pro- ceedings, to the parties who may be entitled to the same. Such recognizance shall be a lien on the real estate so sold until fully paid and satisfied. Note. — This is founded on the last part of Section i and Section 2 of the Act of May 23, 1871, P. L. 274, 3 Purd. 3446, substituting "parties" for "widow, heirs or legatees." Section 2 of the Act of 1871, 3 Purd. 3446, provides that before bring- ing suit on such recognizance the person entitled to receive the money shall give a refunding bond, and that if he is unable to do so, the money shall be put at interest as directed in Section 41 of the Act of February 24, 1834. As is noted under Section 47 (6) of the Fiduciaries Act (see 549 infra) Section 41 of the Act of 1834, as to refunding bonds, has become obsolete and is recommended for repeal. Section 45 of the Act of 1834, relating to the giving of refunding bonds by distributees of the proceeds of real estate sold under order of the orphans' court, is also recommended for repeal. See note to Section 16 (fe) of the Fiduciaries Act (see 447 infra). Section 2 of the Act of .1871 is, therefore, also recommended for repeal. 38. NO OBLIGATION TO SEE TO APPLICATION OF PURCHASE MONEY. Section 28. Whenever a public or private sale of real estate shall be directed or confirmed under the provisions of this act, the person or persons purchasing the real estate so sold and taking title thereto in pursuance of the decree of the court, shall take such title free and discharged of any obligation to see to the application of the purchase money. PARTITION ACT— SECTIONS 28-29 31 Note. — This is copied from Section 16 (/>) of the Fiduciaries Act (see 4SS infra). It supersedes Section i of the Act of March 27, 1865, P. L. 45, 3 Purd. 3445, and Section i of the Act of April 28, 1868, P. L. 105, 3 Purd. 3445, relating to payment into court of the purchase money on a sale in partition, the former extending to sales in partition the provisions of Section 19 of the Act of February 24, 1834, P. L. 70, i Purd. 1 122, which related to sales by executors under testamentary powers, and the Act of 1868 providing that the court might, in its discretion, require payment into court or make such order as might be just in the premises. As is noted under Section 30 of the Fiduciaries Act (see 496 infra), Section 19 of the Act of 1834 was superseded by the Act of June 10, 191 1, P. L. 874, 7 Purd. 7703, which relieves purchasers of obligation to see to the application of purchase money, and is the basis of Section 30 of the Fiduciaries Act. 39. WIDOW'S INTEREST TO REMAIN IN HANDS OF PURCHASER. Section 29. Where a decree for the sale of real estate shall be made by the orphans' court, in the event provided for in Section 21' hereof, the court shall direct that, if there be a widow entitled to a life interest in such real estate under the intestate laws, or should such widow elect to take against the will and thereby be entitled to such life estate, the share of the widow in the pur- chase money shall remain in the hands of the purchaser, during the natural life of the widow. The interest thereof shall be semi-annually and regularly paid to her by the purchaser, his heirs and assigns, holding the premises, and may be recovered by distress or otherwise as rents are recoverable in this com- monwealth, which the said widow shall accept in full satisfaction of her dower in such premises ; and at her decease, her share of the purchase money shall be paid to the persons legally entitled thereto. NoTfi. — This is Section 43 of the Act of March 29, 1832, P. L,. 203, 3 Purd. 3440, which was founded on Section 5 of the Act of April 14, 1828, P. L. 484 (10 Sm. L. 246). The only changes now made are to insert in lines 3 and 4, the words "if there be a widow entitled to a life interest in such real estate," instead of the words "if there be one," and to change ''annually" to "semi- annually." i(See 30 supra.) 32 PARTITION' ACT— Sections 29-30 The fact that the Orphans' Court Partition Act of 1917 (P- L. 338) in Sections 15, 18 and 29 appears to concede to the widow a lesser estate in lands of the decedent than that conferred by the Intestate Act of 1917 (P. L. 431) approved the same day, does not in any way affect the quantum of the estate taken by the widow under the latter act. If there were any conflict between the two Acts, the Intestate Act must govern as to the interest taken, the Partition Act having to do merely with pro- cedure and the enforcement of rights conferred by the Intestate Act. But the alleged conflict is only apparent, and the references in the Partition Act to the life estate of the widow are evidently intended to refer to estates of persons dying prior to the Intestate Act of 1917- Dodd's Est., I Wash. 236. (See extract from opinion under Sec. 21, supra.) 40. OTHER UNDIVIDED LIFE INTERESTS TO RE- MAIN CHARGED ON REAL ESTATE. Section 30. In the case of a sale of real estate under pro- ceedings in partition in the orphans' court, should any person other than the widow of the decedent be entitled, under the in- testate laws, or should any person, including the widow of the decedent, be entitled under the will of the decedent to a life interest in an undivided share of the real estate, the share of such person shall not be paid to him or her, but shall remain charged on such or other real estate, according to the directions of the court ; and the legal interest thereof shall be semi-annually and regularly paid by the purchaser of such real estate, his heirs or assigns, holding the same, during the natural Hfe of such Hfe tenant, and the same may be recovered by such life tenant as debts of like nature in this commonwealth are recoverable, and on the death of the Hfe tenant, the said principal sum shall be paid by the person by whom the said real estate shall have been pur- chased, his heirs or assigns, holding the premises, to the per- sons thereunto legally entitled. Note. — This includes the first part of Section 46 of the Act of February 24, 1834, P. L. 82, 3 Purd. 344S, which was new in that act. It is now altered to conform to Section 19 of this draft (see 28 supra). The re- mainder of the section relates to sales fo.r the payment of debts, and is covered in the Fiduciaries Act. PARTITION ACT— Sections 31-32 33 41. APPOINTMENT OF TRUSTEE TO HOLD PRIN- CIPAL OF SUM IN WHICH THERE IS A LIFE INTEREST. Section 31. In any case of a sale of real estate under the provisions of this act, instead of the life interest of any person in an undivided share of the real estate remaining charged on the real estate as aforesaid, the court may, on petition of the person entitled to the life interest, or of the purchaser, direct the pur- chaser to pay such principal sum to a suitable person or corpora- tion, who shall be appointed by the court as trustee to receive and hold such principal sum, invest the same in securities authorized by law, pay the income thereon, after deducting all legal charges, to the person entitled thereto, and, upon the death of such person, to pay over such principal sum to the persons thereunto legally entitled, after deducting all legal charges thereon. Such trustee shall enter such security as the court may direct, and shall not be an insurer of the trust fund, and shall be liable to the persons interested in the income or corpus of the trust fund only for such care, prudence and diligence in the execution of the trust as other trustees are Hable for. Note. — This is a new section intended to provide a method of relieving the real estate of the charge of a life interest in an undivided share. Its provisions are founded to some extent on Section 23 of the Fiduciaries Act (see 469 infra). 42. PROCEDURE WHERE EXECUTOR, ADMINIS- TRATOR, OR TRUSTEE BECOMES INCAPABLE, IS REMOVED OR DIES. Section 32. In all cases where the letters testamentary or of administration shall be revoked, or the executor, administrator or trustee, or one or more of the co-executors, co-administrators or co-trustees, authorized to make a sale of real estate under the provisions of this act, shall be removed by the court, or shall die, or become insane, or otherwise be incapable, before such sale is effected or before a deed of conveyance is made to the pur- chaser, such sale or such conveyance shall be made in the man- ner and with the effects as provided by law in other cases of sales by executors, administrators or trustees, under like circumstances. Note. — This is a new section. Repetition of the provisions of Section 16 (/) (see 441-6 infra) of the Fiduciaries Act seems unnecessary. Section 47 of the Act of 1832, 3 Purd. 3441, providing for execution of the deed where an executor, administrator or guardian who has made 3 34 PARTITION ACT— Sections 32-33 a sale becomes incapable, is removed or dies, applies to all sales under order of the orphans' court. It and the related acts are covered by Section 16 (/) (see 441-6 infra) of the Fiduciaries Act. Section 4 of the Act of April 9, 1849, P. L- 525, 3 Purd. 3441, makes similar provisions where a trustee appointed by the court to make a sale in partition is removed, dies or becomes incapable before making con- veyance. 43. APPOINTMENT OF AUDITOR TO ASCERTAIN LIENS OR INCUMBRANCES. Section 33. In all cases where, in consequence of proceedings in partition, the share, or any part thereof, of a party in interest, in real estate, shall be converted into money, either by reason of the impracticability or inequality of partition, or by virtue of a sale or otherwise, the orphans' court, before making a final decree confirming the partition or distributing the proceeds of sale, as the case may be, may appoint a suitable person as auditor, to ascertain whether there are any liens or other incumbrances on such real estate, affecting the interests of the parties. If it shall appear by the report of such auditor or otherwise, that there are such liens, the court may order the amount of money which may be payable to any of the parties against whom liens exist, to be paid into court, and shall have full power to decree the distribution thereof among the creditors or others entitled thereto. Where recognizance or other security shall be given for the pay- ment of money, the court may make an order on the party giving such recognizance or other security, to pay the amount thereof into court, when the same shall become due, to be distributed in like manner among the persons holding liens at the time of the partition. Note. — This is Section 49 of the Act of 1832, 3 Purd. 3442, which was new in that act. The changes now made are to substitute "a party in interest" for "an heir" in line 3; the words from "distributing" to "may be," for "sale as aforesaid" in line 7 ; "full power to decree" for "the like power as to" in line 15; and "entitled thereto" for "as is now exercised by the courts of common law, where money is paid into court by sheriffs or coroners," in line 17. Section 45 of the Act of February 24, 1834, P. L. 82, i Purd. 1122, re- lating to the giving of refunding bonds by distributees of the proceeds of real estate, applies to all sales under order of the orphans' court, including partition. In a note to Section 16 (k) of the Fiduciaries Act (see 447 infra) the above section is recommended for repeal. There seems to be no reason for re-enacting it as to partition sales only. PARTITION ACT— Sections 33-34-35 (a) 35 Section 48 of the Act of 1832, 3 Purd. 3444, and Section I of the Act of April 13, 1869, P. L. 28, 3 Purd. 3446, relating to payment to a husband of money awarded to his wife in partition proceedings, would seem to be obsolete since the Married Women's Acts and the act abolishing separate acknowledgments. Their repeal is therefore recommended. 44. ACCOUNT OF EXECUTOR, ADMINISTRATOR, OR TRUSTEE. Section 34. Upon the sale of any real estate by an executor, administrator or trustee, in proceedings in partition in the or- phans' court, it shall be the duty of the said executor, adminis- trator or trustee to file in the orphans' court of the proper county an account of the proceeds of such sale. Note.— This is Section i of the Act of April 11, 1863, P. L. 341, 3 Purd. 3445, altered by inserting "executor"' in lines 2 and 4, by changing "after" to "in" in line 2, by substituting "orphans' court" for "oiRce of the register," and by substituting "the proceeds of such sale" for "his said administration or trusteeship," and omitting, at the end, "in the same manner as is required by law in the settlement of estates of decedents." 45. COSTS AND COUNSEL FEES,— IN GENERAL. Section 35. (a) The costs in all cases of partition in the or- phans' court, with a reasonable allowance to the petitioners for counsel fees, to be taxed by the court, or under its direction, shall be paid by all the parties, in proportion to their several interests. Note.— This is Section i of the Act of April 27, 1864, P. L. 641, 3 Purd. 34SS, so far as it relates ot the orphans' court. The act is not to be re- pealed so far as it relates to the common pleas. Section 36 of the Act of March 29, 1832, 3 Purd. 3423, provides that the orphans' court shall have power "to give judgment ♦ * * * that the costs thereof be paid by the parties concerned." This seems to have been supplied by the Act of 1864, and is now recommended for repeal. Counsel fees in partition cases must be based on compensation for the usual and accustomed service in each case. In case of a contest between the heirs, compensation for such services must be paid by individual heirs, and cannot be taxed against all of them. "The Partition Act of 191 7 is, with slight verbal changes an exact reproduction of the Act of 1864 There is no room for doubt as to what the Legislature intended by this enactment. While in the ordinary course of practice, a partition was for the benefit of all the owners of the property divided, before the act the entire burden of the compensation of counsel for conducting the formal proceeding was thrown upon the petitioners in the orphans' court. In every case professional aid was indispensable, and the purpose of the statute was to divide the cost 36 PARTITION ACT-Sections 35 (a), (&)-36 (a), (6) of the employment of that aid amongst the parties equally benefited by the result of the proceedings. But it was indispensable aid only that was contemplated — such usual and accustomed service as the exigencies of each case should render necessary. The compensation of counsel for services in the trial of contested causes was not the end in view." Quoting from Grubb's Appeal, 82 Pa. 23. Per Stewart, P. J., in Klase's Est. 18 North 46. 46. IN CASES OF SALES. (b) In all cases of sales of real estate, under the provisions of this act, it shall be lawful for the court to order and decree that the costs and expenses of said proceedings, including a reasonable compensation to the executor, administrator or trustee by whom said sale shall be made, shall be paid, on the confirma- tion of such sale, out of the proceeds thereof. Note.— This is the first part of Section i of the Act of May 23, 1871, P. L. 274, 3 Purd. 3446, with slight changes in phraseology, and the sub- stitution of "out of the proceeds thereof" for "by the court," at the end. In line 2, the words, "and may" are omitted after "shall." 47. PRIVATE SALES,— WHEN ORDERED. Section 36. (a) When any orphans' court having jurisdiction of any proceedings in the partition of real estate shall order, or has ordered, any such real estate or any purparts thereof to be sold, said court may authorize or direct a private sale thereof, or may approve, ratify and confirm a private sale thereof made under an order for a public sale, if in the opinion of the court, under all the circumstances, a better price can be obtained at a private sale than at a public sale thereof. Note. — This is Section r of the Act of May 22, 1895, P. L. 114, 3 Purd. 34S4, limited to the orphans' court. So far as it relates to the common pleas, the repeal of that section is not recommended. In lines 4 and S, "authorize or direct" is substituted for "decree and approve.'' The provision for security is omitted, being covered by Section 25 of this draft (see 35 supra). 48. NOTICE OF SALE. (b) Before authorizing or directing any private sale of real estate under this act, public notice thereof shall be given by ad- vertisement printed in at least one newspaper, published in the county where such real estate is situated, and in such other PARTITION ACT— Sections 36 (&), {c)-27 37 papers as may be designated by the court, once a week for a period of three weeks prior to the date fixed by such order for authorizing or confirming such sale, and also written or printed notices, one of which shall be posted at a conspicuous place on the real estate proposed to be sold, and at least three of which shall be posted at three of the most public places in the vicinity of such real estate. Before authorizing or directing such sale, the court shall require proof, by affidavit to be filed in the pro- ceeding, that notice as aforesaid has been given. Such notice shall specify the location and description of the real estate pro- posed to be sold, the name of the proposed purchaser and the price agreed to be paid. NoTB. — This is copied from Section 16 (»i) 2 of the Fiduciaries Act (see 451 infra). 49. SETTING ASIDE SALE. (c) On the day fixed by such order and notice for authorizing or directing such private sale, any party interested as heir, devisee or intending purchaser, or any legatee whose legacy is, by the express terms of the will, or by law, charged on such real estate, may appear and object to such private sale on account of the insufficiency of the price, and, if such objection be sustained, may offer to give or pay a substantial increase for such property. The court, at its discretion, may thereupon authorize or direct such sale, or refuse to authorize or direct the same, and accept any substantially increased offer, and may authorize the sale of such property to such new bidder upon compliance with the conditions of sale and giving such security as shall be directed by the court. Such party interested or legatee may appear as aforesaid and object to such sale on any legal or equitable grounds. Nothing herein contained shall be construed to affect the existing law with respect to objections to public sales. Note. — This is copied, with slight modification, from Section 16 (»j) 3 of the Fiduciaries Act (see 452 infra). 50. LANDS IN ADJOINING TRACTS IN DIFFERENT COUNTIES. Section 37. When the lands, in respect to which application for partition shall be made to the orphans' court as aforesaid, lie in one or more adjoining tracts, in different counties, it shall be lawful for the orphans' court of the county in which the 38 PARTITION ACT— Sections 37-38 (a) mansion house is situated, or, if there be no mansion house, the court of the county where the principal improvements may be, or, if there be no improvements, the court of either county, on the appHcation of any person interested, either to proceed by the appointment of commissioners as aforesaid, or to issue its writ to the sheriff of the county within the jurisdiction of the court, specifying the lands of which a partition or valuation is to be made. Thereupon the said sheriff shall summon an inquest to divide or value the said lands, in the same manner as if the whole were within his proper bailiwick. Upon the return thereof, or upon the return of the commissioners appointed by the court, as aforesaid, the court may further proceed therein, in all respects as if all the said lands were in the county. Any recognizance taken in pursuance of such proceedings shall be as effectual, to all intents and purposes, as if the lands bound by it were wholly within the county where such recognizance is taken. A certified copy of the proceedings which may be had shall, within twenty days after the final decree therein, be delivered to the clerk of the orphans' court of each county in which the application shall not have been made, and in which any part of the said lands are situate, which shall be entered on the records of such court at the joint expense of all parties concerned. Note. — This is Section 44 of the Act of March 29, 1832, 3 Purd. 3447, which was founded on Section i of the Act of April i, 1805, P. L. 205. 4 Sm. L. 246. It is now altered by inserting the provisions as to the man- sion house, improvements, etc., as used in the Fiduciaries Act. In the proviso, "certified copy" is substituted for "exemplification." 51. LANDS IN DIFFERENT COUNTIES, BUT NOT IN ADJOINING TRACTS,— WHERE PROCEEDINGS SHALL BE BROUGHT. Section 38. (a) All proceedings for the partition or valuation of real estate, under the provisions of this act, where the real estate to be divided or valued is situate in two or more counties of this commonwealth, but not in adjoining tracts, shall be brought only in the county where the decedent, whose land is to be divided or valued, had his domicile, or if he had no domicile in the state, then in the county where the larger part of the estate in value shall be situated ; or, with leave of such court, the parties inter- ested may institute proceedings in the orphans' court in each county where such real estate is situated. PARTITION ACT— Sections 38 (a), (b), (c) 39 Note.— This is founded on Section i of the Act of February 20, 1854, P. I/. 89, 3 Purd. 3447, so far as the same relates to the orphans' court, and Section I of the Act of April 17, 1856, P. L. 386, 3 Purd. 3448, con- struing the former. The Act of 1854 includes the common pleas and is not to be repealed in that regard. After "real estate" in line 2, the words "the recovery of dower or the widow's third or other part" have been omitted as unnecessary, the widow's remedy in the orphans' court being now by partition proceedings. The word "recovered" is omitted after "valued" in two places, for the same reason. The words "if he had no domicile in this state, then" have been substituted for "the homestead"; and after "shall be situated" the words "or any defendant may be found" are omitted. The last clause is substituted for the provisions of the Act of 1856, which are unneces- sarily obscure but which mean the same as the substituted clause. Section 2 of the Act of May 14, 1874, P. L. 156, 3 Purd. 3449, supple- mental to the Act of 1854, provides that "Nothing contained in this act or the acts to which it is a supplement, shall be so construed as to prevent any tenant in common or joint-tenant of real estate, situated in two or more counties of this commonwealth, from bringing a separate suit, either at law or in equity, in either or any of such counties, for partition or valuation of so much of such real estate as is situated therein, except in the case where such real estate consists of single tracts lying in adjoining counties." This is recommended for repeal, so far as it relates to the orphans' court. 52. SERVICES OF PROCESS AND NOTICES. (b) In proceedings under this section, all process, writs and notices required to be served personally upon any person or persons interested in such proceedings may be served by the sheriff of any county of this state under deputization from the sheriff of the county in vi^hich such proceedings have been insti- tuted or commenced. Note.— This is taken from Section i of the Act of April 17, 1856, P. L. 386, 3 Purd. 3448, with the addition of the provision for service in any county of the commonwealth. Section i of the Act of February 20, 1854, P. L. 89, 3 Purd. 3447, pro- vides that "service of process may be made by any sheriff, where real estate to be divided shall be situated, or any defendant may be found." 53. SELECTION OF COMMISSIONERS OR JURORS; COMPENSATION AND MILEAGE. (c) The commissioners or jurors for making partition or valu- ation under the provisions of this section may be selected from the county in which such proceedings are instituted, or from 40 PARTITION ACT— Section 38 (c), (d), («), (/) any one or more of the counties in which such land is situate. The compensation and mileage of said commissioners or jurors shall be the same as is provided in Section f of this act. Note. — This is derived from Sections i and 2 of the Act of April 17, 1856, P. L. 386, 3 Purd. 3448. That act specially provides for the sheriff's fees and the jurors' fees and mileage. Commissioners are now included, provision is made that the commissioners or jurors may be selected from any one or more of the counties instead of only from the county where the proceedings are instituted, and reference is made to Section 7 of this draft for the provisions as to their compensation and mileage. The pro- vision that the sheriff shall receive two dollars a day for each day after the first, is omitted, since it is properly covered by the sheriff's fee bills. i(See 9 supra.) 54. SALES. (d) This section shall include all proceedings in partition neces- sary to be had, as well before as after the refusal of the parties to take real estate at the valuation ; and the said courts in which such proceedings are had, are hereby authorized to order the sale of such real estate, after such refusal, in the same manner as if all the real estate were situated in the county in which such proceedings are instituted : Provided, That the sales of such real estate shall be held in the county in which the real estate is situ- ated, unless otherwise ordered by the said courts. Note.— This is part of Section I of the Act of March 30, 1869, P. L. IS, 3 Purd. 3448, supplemental to the Act of 1854. 55. PROCEEDINGS NOT SPECIALLY PROVIDED FOR IN THIS SECTION. (e) Except as otherwise provided by this section, the pro- ceedings hereunder shall be the same as provided by this act in other cases of partition and valuation. Note.— This is taken from the last clause of Section i of the Act of May 14, 1874, P. L. 156, 3 Purd. 3449. 56. FILING CERTIFIED COPIES IN OTHER COUNTIES. (/) Certified copies of the record may be filed in every county where such real estate shall be situated, in the office of the clerk of the orphans' court thereof, and be received in evidence, with the like effect, as the records of the court where filed. PARTITION ACT— SecTioNS 38 (/)-39 (a), (&) i 41 Note. — This is taken from the last part of Section i of the Act of Feb- ruary 20, i8S4, P. L. 89, 3 Purd. 3447, substituting "certified copies" for "exemplifications." 57. RECOGNIZANCES IN GENERAL,— ASCERTAIN- MENT OF AMOUNTS DUE. Section 39. (a) In all cases of partition in the orphan's court, where the court shall order and decree any party taking any por- tion of the estate at a bid or at the appraisement, or purchasing the same at a sale, as hereinbefore provided, to give any recog- nizance for the payment of any part of bid, valuation or pur- chase price, the court shall have power to appoint an auditor for the purpose of ascertaining advancements and making dis- . tribution among the heirs and parties in interest. In all cases in which such auditor has not been or may not be appointed, it shall be the duty of the court to make a calculation exhibiting the amounts due the respective parties in interest, and to direct the clerk of the court to record said calculation upon the partition docket of the court as a part of the proceedings in each case, for which services the clerk shall be entitled to a fee of one dollar. Note. — This is Section i of the Act of April 12, iSsS, P. L. 214, 3 Purd. 3436, modified so as to authorize the court to appoint an auditor, and to provide that the court, instead of the clerk, shall make the calculation and that it shall be recorded in the partition docket. 58. SATISFACTION,— OF RECORD. (b) I. Where a recognizance has been or shall hereafter be taken in any orphans' court, in any partition proceeding, as hereinbefore provided for, and the same, or any part thereof, shall be satisfied or paid to the person or persons interested therein, his, her or their agent or attorneys, any such person so havmg received satisfaction of the amount coming to him, shall enter an acknowledgment thereof upon the record of such court, which shall be satisfaction and discharge of the said recognizance, to the amount acknowledged to be paid; and the recognizance shall cease to be a lien on the real estate of the conusor to a greater amount than the principal and interest actually remaining due. Note. — This is Section 50 of the Act of March 29, 1832, 3 Purd. 3435, which was derived from the first clause of Section 6 of the Act of April 14, 1828, P. L. 484. 10 Sm. L. 246, but omitted all reference to bonds as 42 PARTITION ACT— Sections 39 (&) i, 2-40 distinguished from recognizances. It is now made applicable to all cases of recognizance in partition, and not merely to cases of acceptance at the appraisement. 59. REMEDY FOR REFUSING TO SATISFY. 2. If any person who shall have received satisfaction as afore- said, for his claim or lien secured by such recognizance, shall neglect or refuse to enter upon the record his acknowledgment thereof, upon the written request of the owner of the premises, bound by such recognizance, or of any part thereof, or of his legal representatives, or other persons interested therein, on tender of all the costs for entering such acknowledgment, the orphans' court, on due proof to them made that the entire amount due to any heir, legatee or distributee, shall have been fully paid and discharged, may make an order for the relief of such person from any recognizance or other recorded lien. Such order, being certified to the proper court where such lien may appear, shall be entered on the records, and shall inure and be received as a full satisfaction and discharge of the same. Note. — This is Section 51 of the Act of March 29, 1832, 3 Purd. 3436, which was founded on part of Section 6 of the Act of April 14, 1828, P. L. 484, 10 Sm. L. 246. The Commissioners' Draft did not contain the provision as to action by the orphans' court. The provision for a penalty of fifty dollars and damages to be assessed by a jury on a trial at law is now omitted, the remedy in the orphans' court being considered sufficient. Sections 22 and 23 of the Act of April 26, 1850, P. L. 581, 3 Purd. 3436, so far as they relate to such recognizances, are recommended for repeal. Those sections extend to legacies and recognizances the provisions of the Act of March 31, 1823, P. L. 216, 8 Sm. L. 131, i Purd. 1187, relating to satisfaction of mortgages. The incorporation of those provisions in the present draft, by mere reference would raise a question of constitution- ality and there seems to be no need for doing so. 60. PROTECTION OF INTERESTS OF PERSONS NOT IN ESSE. Section 40. In all cases arising under this act, where there is a limitation of an estate or interest in the premises or some part thereof to a person or persons not in existence, the court shall have power to appoint a trustee to represent such unborn person or persons in the proceedings, and shall have power to make such further or other orders in regard to the property or purpart in which such person or persons may become interested, or the PARTITION ACT— Sections 40-41 43 proceeds of the sale thereof, or any recognizance given with respect thereto, as justice and equity may require. Note. — This is founded on the second proviso to Section i of the Act of June 3, 1840, P. L. S93, 3 Purd. 3412, which relates only to ''writs of partition," as construed in Holmes v. Woods, 168 Pa. 530. Although under the terms of the will creating the trust, there is to be no distribution until after the death of the wife and testator's last sur- viving brother or sister, at which time the class of distributees is to be determined, which is likely to include children not yet born, there is no necessity for the appointment of a trustee for such unborn children, as the trustee appointed by the will has full custody and control, as an active trustee, of both corpus and income of said estate, and is responsible for a proper distribution when the time arrives. The trustee has power and authority to represent all cestuis que trustent, whether in esse or not, in any litigation affecting the trust. "The third matter of law brought up by the answer, raises the question of law whether or not the interests of the unborn persons, if any, in the decedent's real estate involved in this cause are, by said will, effectively reposed in the respondent as such trustee thereby appointed, who would thus be lawfully authorized and in duty bound, to represent such interests in this proceeding or whether such interests of unborn persons, if any, should be represented and protected in this cause by a trustee to be appointed by this court for that special purpose under Section 40 of the Orphans' Court Partition Act of 1917, P. L. 337. "We are of the opinion that no such special trustee need here be ap- pointed for the purpose of representing and protecting such interests of persons not in esse, if any, believing that such interests, if any, have been by the testator himself duly committed to and effectually reposed in the respondent as trustee, who is thus duly clothed with absolute power and authority to represent such unborn persons, if any, and their rights and interests to, in and concerning the said real estate in this cause." Dodd's Estate, i Wash. 236. 61. PARTITION DOCKET. SECTION 41. It shall be the duty of the clerks of the orphans' courts of the several counties of this commonwealth, and they are hereby required to enter in a book to be procured for that purpose, to be called a partition docket, all the proceedings in partition in every case in their respective courts, from the com- mencement to the final judgment and decree thereon, which shall be and the same is hereby made the record of said court; for which service, such clerks shall be entitled to receive the same fees as the recorders of deeds receive for recording, to be taxed and paid as part of the costs of such proceedings. 44 PARTITION ACT— Sections 41-42-43-44 Note.— This is Section i of the Act of April 4, 1889, P- L. 23, 3 Purd. 3436. 62. PARTITION INDEX. Section 42. It shall be the duty of the clerks of the orphans' courts of the several counties of this commonwealth, and they are hereby required, to keep a separate index, to be known as the partition index, in which shall be entered in alphabetical order the names of all persons to whom any real estate shall be allotted or awarded in partition proceedings in said courts, and the names of all purchasers of real estate in such proceedings. Note. — This is a new section, introduced in order to facilitate searches of title. In the absence of such index, it is often very difficult to trace back a title to a partition proceeding, since the records of the orphans' court show the proceeding only under the name of the decedent. 63. APPEALS. Section 43. Any party aggrieved by any definitive decree or judgment of any orphans' court, or by any order or decree awarding or refusing to award an inquest, or by an order of sale, under the provisions of this act, may appeal therefrom to the proper appellate court as in other cases of appeals from the orphans' court. Note. — This is a new section, intended to permit an appeal from an order awarding an inquest, which has been held to be an interlocutory order from which an appeal does not lie: Wistar's Appeal, 115 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 191 7. 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, 1794, 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 commonwrealth 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 ID, 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— SfiCTioN 43 Section lo 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 11, 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. ly. 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. 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. "JT, 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, Anino 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. 4 50 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' 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, 191 5, 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 (&) 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 191 7 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 S3 I9I7 Section Pamphlet Number Laws Herein (b) Separate orphans' courts in certain counties ; judges, their election, com- missions and salaries, (c) Composition of orphans' court where not separate, 367 (d) President judge of separate orphans' court, 1. Senior judge ; drawing lots, 2. Where only one judge 3. Re-election, , . . . . 4. Where two or more judges are elected at same election, Section 2. Court to be a court of record; proceed- ings not to be collaterally attacked 368 Section 3. Calling in judges of other districts when judge of district is unable to sit, (a) Power to call in other judge, (b) Compensation and carfare, Section 4. Common pleas judges sitting in separate orphans' court (a) Power to act, (b) Not compelled to act, 369 (c) When president judge absent or disabled other judge may call in common pleas judge (d) Mileage and expenses, Section S- Orphans' court judges sitting in courts of common pleas or criminal courts, (a) Power to act (b) Not compelled to act, (c) When president judge absent or disabled other judge may call in orphans' court judge 370 (d) Mileage and expenses, Section 6. Seal of court Section 7. Court rooms, Section 8. Clerk of court, (a) Register of wills to be clerk in counties having separate orphans' court; other counties, (b) Duties of clerk 1. Custody of records ; duties in general 2. Dockets ; records of accounts ; and auditors' reports 371 68 69 70 70 71 72 73 74 75 75 76 77 77 78 79 80 81 81 82 83 84 85 86 87 87 54 ORPHANS' COURT ACT— Contents 1917 Pamphlet Laws 3. Translations of papers in other than English language (c) Bill of costs Section 9. Jurisdiction, (a) Guardians, (b) Trustees, 372 (c) Trustees durante absentia, (d) Executors and administrators, (e) Distribution of decedents' estates, (f) Sale of real estate for payment of debts of decedents, (g) Disposition of title to real estate to render the same freely alienable, et cetera, .... (h) Partition, (i) Specific execution of decedents' contracts as to real estate, ( j ) Legacies (k) Discharge of liens and charges, (1) Where executors, administrators, guard- ians or trustees are possessed of or ac- countable for estate of decedent (m) Appeals and proceedings certified from registers of wills, (n) Incidental and additional powers, Section 10. Rules of court Section 11. Time of holding court zy^ Section 12. Notice to parties, (a) In general, (b) Publication, Section 13. Attestation of process, et cetera, Section 14. Return-days of process, Section 15. Proceedings in vacation, Section 16. Injunctions, Section 17. Proceedings to obtain appearance; cita- tions, procedure in default of appearance 374 (a) Awarding citation, (b) By whom to be served, (c) Manner of service, (d) Place of service, (e) Service on sureties (f ) Return of service, (g) Alias and pluries citations, (h) Order of publication on award of alias or pluries citation, 375 Section Number Herein 90 91 92 93 94 95 96 97 98 99 100 lOI 102 103 104 lOS 106 107 108 109 109 no III 112 113 114 IIS 116 117 118 119 120 121 122 123 ORPHANS' COURT ACT— Contents 55 (i) Default of appearance 1. Power of court to proceed, 2. Method of proceeding Section i8. Proceedings to compel obedience to or- ders and decrees (a) Modes of enforcing orders and decrees, 1. Attachment of the person 2. Sequestration, 3- Fi. fa 4. Attachment execution, 5. Testatum fi. fa., (b) Procedure on attachment or sequestration, 1. Direction of writs 2. Issuance of process to other counties, 3. Form of writ of sequestration,.... 4. Sequestration not to abate on death of party, 5. Filing copy of writ of sequestration in prothonotary's ofiSce, 6. Issuance of attachment or seques- tration where party absconds, 7. Dissolution of attachment or seques- tration, 8. Discharge of persons attached as for contempt, 9. Procedure where party is wasting trust property, or is about to abscond 378 10. Enforcement of final order and de- cree for delivery of trust prop- erty, 11. Order as to final disposition of trust property, 12. Decree in sequestration proceedings when party does not appear; se- curity by complainant 13. Reopening of such decree 379 14. Failure of respondent to apply for reopening, (c) Process to recover fines, forfeitures and amercements, (d) Direction of, and procedure on, writs of fi. fa., I9I7 Section Pamphlet Number Laws Herein 124 124 125 126 126 127 128 129 130 376 131 132 132 133 134 377 I3S 136 137 138 139 140 141 142 143 144 14s 146 147 56 ORPHANS' COURT ACT— Contsnts-^Title 191 7 Section Pamphlet Number Laws Herein (e) Transcripts to the common pleas of orders upon parties, other than fiduci- aries, to pay money 148 1. Filing transcripts and effect thereof ; executions, 148 2. Satisfaction and discharge of judgments on transcripts, 380 149 Section 19. Fees of sheriff; mileage; postage, 150 Section 20. Witnesses and evidence ISI (a) Subpoenas, ISI (b) Methods of taking testimony, 152 1. In general 152 2. Depositions of aged, infirm, and going witnesses; commissions, and letters rogatory, 381 153 3. Oral deposition outside of State,.. 154 (c) Production of books and papers, iSS (d) Perpetuation of testimony, 156 (e) Testimony in proceedings removed from register of wills, 382 157 1. What testimony to be basis of de- cision, 157 2. Testimony taken in orphans' court to be reduced to writing, 158 Section 21. Issues to the common pleas, 159 (a) In general, 159 (b) In proceedings removed from register of wills 160 (c) On distribution of proceeds of sales of real estate, 383 161 1. Affidavit 161 2. Investment of fund pendente lite, 162 Section 22. Appeals 163 (a) Right of appeal; effect of appeal,.... 163 (b) Disposition of cases on appeal, 384 164 Section 23. Short title section, 165 Section 24. Repealer, 384-8 166 66. TITLE. 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 (a), (6) 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. £o6, 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. (b) 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 15, 1874, P. L. 206, 3 Purd. 3360, as amended by the Act of June 13, 18S3, P. L. 91, further amended so as 58 ORPHANS' COURT ACT— Section i (6), (c), (d) 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: Berks County, by Act of June 13, 1883, P. h- 97 ; Schuylkill County, by Act of March 28, 1895, P. L. 31; Westmoreland County by Act of April 11, 1901, P. L. 71; Montgomery County, by Act of May 2, 1901, P. L. 117; Lancaster County, by Act of July 11, 1901, P. L. 655; Lackawanna County, by Act of July 11, iQOi, 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 s, 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 11, 1921, P. L. 121, and Erie County by Act No. 397, May 24, 1921. *J| 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 (d) 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. 3361- 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, 6o ORPHANS' COURT ACT— Sections 2-3 (o), (&) 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. S, 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 (0) of this section shall be entitled to receive ORPHANS' COURT ACT— SfiCTioNs 3 (.b)-4 (a), (6), (c) 61 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, 1911, P. L. loi, 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 (b) 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, 191S, P. L. 156, s Purd. SS41. 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 (^), (d)-S (a) 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. (d) 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 (b) oi 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 (6), (c), (.d)-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. NoTB. — In this clause, "shall" has been substituted for "should" in line 4, and "one" for "an" before "additional law judge" in line S- 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-^Sbctions 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- Iv. 35 1, 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 (fc) i, 2, 3 6$ 88. DUTIES OF CLERK,— CUSTODY OF RECORDS; DUTIES IN GENERAL. (b) 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 (o) 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 fu'l 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. 1 126, 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, (c)-9 (a), (6) 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), (e), (/), (g) 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 11, 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. (d) 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 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 (h). 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 deahng 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 W, (J) 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." loi. SPECIFIC EXECUTION OF DECEDENTS' CON- TRACTS AS TO REAL ESTATE. (i) 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 (j) 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 (i), (;), (fe), (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. IS7). 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. (k) Proceedings for the discharge of real estate of decedents from the hen of debts of decedents, and for the discharge of real and personal estate from the Hens of legacies, annuities, dower, recognizances and other charges. NoTB. — 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. NoTB.— 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 S, 191 1, (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 (0, (w), (<»)-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. (w) 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. (m) 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 ii. 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. log. 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 (k) of the new Fiduciaries Act, (see 616 infra). no. 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.) 111. 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 (») 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), (b), (c), (rf) Note.— This and the following clauses of this section, except where otherwise indicated in the notes, are founded on Section $7 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. Seidraan's Estate, 20 Lack. 176, citing Moore's Estate, 19 Dist. 109. 117. BY WHOM TO BE SERVED. (b) 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, 211 Pa. 473; Coleman's Appeal, 75 Pa. 441. ORPHANS' COURT ACT— Section 17 (e), (/), (g), (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. NoTfi.— 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. (g) 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 S7 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 (A), (i) 1,2-18 (a) 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) 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 the 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 i8 (a), i, 2, 3, 4 ']^ 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, injra. 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 required, if he be not found in said county. 78 ORPHANS' COURT ACT— Ssciion i8 (a) 4, 5> (&). i. 2 Nore.— 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. Iv. 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, thall 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 S7th 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 i8 (b) 2, 3, 4, s 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- 8o ORPHANS' COURT ACT— Section i8 (6) 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 i8 (b) 7, 8, 9 81 certain to answer to the petition, and to abide the orders and decrees of the court in the premises. NoTB.— 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 i8 (6) 9, 10, n, 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 sherifif 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 dehvery 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 ju,stice 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-^Section i8 (b) 12, 13, 14, (0 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 i8 (d), (e) 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 eflfect only from the time of entering the decree of the appellate court ; but if the ainount be reduced by the final decree of the appellate court, the pro- ORPHANS' COURT ACT— Sections i8 (e) 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 S6i 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 (0) 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 (b) of the Fiduciaries Act (see 562 infra). 150. FEES OF SHERIFF; MILEAGE; POSTAGE. Section ig. 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 (o), (b) 1 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. NoTS.— 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,— SUBPCENAS. 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. NoTfi.— 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. (b) 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, iQi/. Sec. 20 (b) 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-Sbction 20 (6) 3, (0, (d) In granting any such application the coui't 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, 191 1, 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, 37 Lane. 29, IS Del. 199. 155. PRODUCTION OF BOOKS AND PAPERS. (c) The orphans' court shall have power to compel the pro- duction of any books, papers or other documents, necessary to a just decision of the question before them, or before an auditor or master. Note. — This is the last part of Section 56 of the Act of 1832, P. L. 208, 3 Purd. 3380. The first part of that section conferred the right to cross-examine parties in the orphans' court as though they were made defendants in a bill in equity for discovery, which provision is now obsolete in view of the later general acts on the subject. 156. PERPETUATION OF TESTIMONY. (d) Every orphans' court of this commonwealth shall have the jurisdiction and powers of a court of chancery, so far as relates to the perpetuation of testimony in all cases, including cases of lost or destroyed records of such court, whether such records were lost or destroyed before or after the passage of this act, and the same proceedings, orders, decrees and judgments shall be had under this section, mutatis mutandis, as in cases now authorized by law, and with the like effect; and when proved, such records shall have the same legal operation as the original records would have had. Notice of any proceeding under this clause shall be given to all persons interested, or their guardians or committees. ORPHANS' COURT ACT— Sections 20 (d), (e) i, 2,-21 (a) 89 Note. — This is founded on Section i of the Act of April i, 1863, P. L. 205, 3 Purd. 338s, which, however, is limited to cases of lost or destroyed records. The first proviso of that section has been omitted, its substance being covered by a modification of the phraseology of the first part of the clause, and the last sentence has been substituted for the provision that notice shall be served upon "minors and their guardians." 157. TESTIMONY IN PROCEEDINGS REMOVED FROM REGISTER OF WILLS; WHAT TESTI- MONY TO BE BASIS OF DECISION. (e) I. On appeal from the decision of any register of wills, or in proceedings removed from any register of wills by certifi- cation, the orphans' court shall hear the testimony de novo, unless all parties appearing in the proceeding shall agree that the case shall be heard on the testimony taken before such register : Provided, That in all cases the court shall have power to require the production before it, for examination, of the wit- nesses already examined, or of any other witnesses. Note. — This is a new clause, introduced in order to remove any pos- sible doubt as to the procedure in such cases. 158. TESTIMONY TAKEN IN ORPHANS' COURT TO BE REDUCED TO WRITING. 2. The testimony of all witnesses examined in any cause liti- gated before any orphans' court on appeal from any register of wills, or on removal from any register of wills by certification, shall be taken in writing and made a part of the proceedings therein, upon which testimony the court having jurisdiction of such cause by appeal may affirm, reverse, alter or modify the decree of the orphans' court. Note. — This is founded on Section 40 of the Act of March 15, 1832 (P. L. 135) 4 Purd. 4086, which was derived from Section 18 of the Act of April 13, 1791, 3 Sm. L. 28; the Act of 1832, however, referred to the register's court. The words "on appeal from any register of wills, or on removal from any register of wills by certification," have been inserted to show that the paragraph does not apply to other proceedings in the orphans' court. 159. ISSUES TO THE COMMON PLEAS,— IN GEN- ERAL. Section 21. (a) The orphans' court shall have power to send an issue to the court of common pleas of the same county for 90 ORPHANS' COURT ACT— Section 21 (a), (&) the trial of facts by jury, whenever they shall deem it expedient so to do. Note.— This is Section 55 of the Act of March 29, 1832, P. L. 208, 3 Purd. 3378. See Klagholz's Est., 27 Dist. 95 ; Byerly's Est, 258 Pa. 410, 102 Atl. 143. 160. IN PROCEEDINGS REMOVED FROM REGISTER OF WILLS. (b) Whenever a dispute upon a matter of fact arises before any orphans' court, on appeal from any register of wills or on removal from any register of wills by certification, the said court shall, at the request of either party, direct a precept for an issue to the court of common pleas of the county for the trial thereof, which, in the case of an issue devisavit vel non, shall be sub- stantially in the following form: (L. S.) County, ss. The Commonwealth of Pennsylvania : To the judges of the court of common pleas of the said county, greeting: Whereas, A. B., on the day of , in the year, etc., presented to G. H., our register of wills of said county, for probate, a certain writing hereto annexed, purporting to have been made the day of , in the year, etc., (or otherwise describing the paper in question), which said writing the said A. B. avers is the last will and testament of the said C. D., and whereas E. D., who is a son and heir of the said C. D. (or intermarried with F. D., who is a daughter and heir, etc., according to the fact), hath objected before our said register that the said writing was procured by duress and constraint (stating the matters of fact objected), and whereas our said register hath admitted (or refused to admit) said writing to probate as the last will and testament of the said C. D., and whereas the said E. D. hath appealed from the decree of our said register to our orphans' court for the said county (or as the case may be) and whereas the said E. D. (or A. B.) hath requested that an issue may be directed into our said court of common pleas to try by a jury the validity of the said writing, and the matters of fact which may be objected thereto in our said court ; therefore, we command you that you cause an action to be entered upon the records of our said court, as of the day of the delivery of this our precept into the office of the prothonotary of our said court, between the said A. B. and the said E. D., so that an issue therein may be ORPHANS' COURT ACT— Section 21 (6), (c) i 91 formed upon the merits of the controversy between the said parties, and tried in due course according to the practice of our said courts in actions commenced by writ ; and further, that you cause all other persons who may be interested in the estate of the said C. D., as heirs, relations or next of kin, devisees, legatees or executors, to be warned, so that they may come into our said court and become party to the said action, if they shall see cause, and that you certify the result of the trial so had in the premises into our said orphans' court. Attest. I. J., President Judge of the Orphans' Court of the said county. Where the issue directed is other than an issue devisavit vel non, the foregoing form shall be changed, so far as necessary, in ac- cordance with the circumstances of the case. And the facts established by the verdict returned shall not be re-examined in any appeal. Note. — This is Section 41 of the Act of March 15, 1832, 4 Purd. 4088, with the substitution of "orphans' court" for "register's court," and the insertion of the words beginning "on appeal" and ending "certifica- tion," in order to show that the section applies only to cases coming up from the register. Section 41 of the Act of 1832 refers to the form of precept prescribed for issuance by the register. Since this form is embodied in the new Register of Wills Act, a similar reference cannot be made in the present section, and the form is therefore set forth at length, with the proper changes for an issue demsavit vel non. Under this section of the act the dispute must be substantial and must arise from a conflict of testimony and must also be as to some matter of fact, material to the decision of the question at issue. The question of legitimacy of an alleged son and heir of the decedent is not such a material or essential question as to warrant the direction of a precept for an issue to the court of common pleas. Wand's Est., 50 Pa. C. C. 516. 161. DISTRIBUTION OF PROCEEDS OF SALES OF REAL ESTATE,— AFFIDAVIT. (c) I. Before an issue shall be directed upon the distribution of money arising from any sale of real estate made under order of the orphans' court, the applicant for such issue shall make affidavit that there are material facts in dispute therein, and shall set forth the nature and character thereof, upon which affidavit the court shall determine whether such issue shall be granted, subject to appeal by such applicant, if the issue be refused, iri like manner as in other cases in which such appeal is or may be allowed by law. 92 ORPHANS' COURT ACT— Sections 21 (c) i, 2-22 (a) Note.— This is the proviso to Section 2 of the Act of April 20, 1846, P. L. 411, 3 Purd. 3379, which applies also to "sales under execution." While the subject-matter of this clause is probably covered by clause (0) of the present section, the Commissioners have concluded to recommend its inclusion. The section of the Act of 1846 is not recommended for repeal except so far as it relates to the orphans' court. The following changes have been made: In lines 2 and 3, "any sale of real estate made under order of the orphans' court" has been sub- stituted for "orphans' court sales." In line 8, "a writ of error or" has been omitted before "'appeal," and, at the end, "'appeal is or may be allowed by law" has been substituted for "writ now lies." 162. INVESTMENT OF FUND PENDENTE LITE. 2. Upon granting any such issue, it shall be discretionary with the court, upon the application of the party or parties appearing, by the record, prima facie entitled to the said fund, to order the same to be invested, pendente lite, in investments allowed by law in the case of trustees. Note. — This is Section 3 of the Act of April 20, 1846, P. L. 411, 3 Purd. 3380, which, like Section 2 of that Act, is to be repealed only so far as it relates to the orphans' court. In line 2, after '"court," these words are omitted : "'so soon as the money arising from such sale shall have been paid into court." At the end, "investments allowed by law in the case of trustees" has been substituted for "the debt of the United States, or some other sufficient security, subject to the decree of the court." 163. APPEALS,— RIGHT OF APPEAL AND ITS EF- FECT. Section 22. (a) Any party aggrieved by the definitive sentence or decree of any orphans' court, or his legal representatives, may appeal therefrom to the proper appellate court within six months from the time of pronouncing such final sentence or decree : Provided, That no appeal from any decree of such court, concerning the validity of a will, or the right to administer, shall suspend the powers or prejudice the acts of any executor or administrator to whom letters have been granted : And provided further, That no reversal or modification of any decree or pro- ceedings of the orphans' court, for the sale of real estate, shall have the effect of divesting any estate or interest acquired under such decree or proceeding, by persons not party thereto, where the orphans' court had jurisdiction of the case. Note. — This is founded on Section 42 of the Act of March 15, 1832, 4 Purd. 4092, and Section S9 of the Act of March 29, 1832, P. L,. 213, 3 ORPHANS' COURT ACT— Sections 22 (o), (&)-23-24 93 Purd. 3383-4. The former section relates to appeals from the register's court in cases where the sum in controversy exceeds $150, and provides that the powers of an executor shall not be suspended by an appeal if he gives sufficient security to the register for the faithful administration of his trust, and that on his refusal to give security the register shall grant letters of administration during the dispute, which shall suspend the power of the executor during that time. In that section, the period for appeal is one year. The provisions which are omitted in the present draft seem unnecessary in view of the provisions of the Fiduciaries Act as to the requiring of security and the granting of letters pendente lite. The first proviso of Section 59 of the Act of March 29, 1832, and Section 8 of the Act of May 19, 1874, P. L. 206, are omitted, having been repealed by Section 22 of the general appeals Act of May 19, 1897, P. L. 72. See form of bond on appeal, 25. 164. DISPOSITION OF CASES ON APPEAL. (b) The supreme and superior courts of this commonwealth shall, in all cases of appeal from the definitive sentence or decree of the orphans' court, hear, try and determine the same as to right and justice may belong, and decree according to the equity thereof ; and may refer the same to auditors when, in their dis- cretion, they may think proper. Note — This is a combination of Section 4 of the Act of April 14, 1835, P. L. 276, 3 Purd. 3384, and Section 2 of the Act of June 16, 1836, P. L. 683, 3 Purd. 338s, extended so as to include the superior court. 165. SHORT TITLE. SecTiON 23. This act shall be known and may be cited as the Orphans' Court Act of 1917. 166. REPEALER. Section 24. 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 of such act. Sections i, 8 and 9 of an act entitled "An Act for establishing orphans' courts," passed March 27, 1713, i Sm. L,. 81, absolutely. Sections 5, 6 and 18 of an act entitled "An Act to establish the judicial courts of this commonwealth, in conformity to the alter- ations and amendments in the constitution," passed April 13, 1791, 3 Sm. L. 28, absolutely. Section 24 of an act entitled "An Act directing the descent of 94 ORPHANS' COURT ACT— Section 24 intestates' real estates, and distribution of their personal estates, and for other purposes therein mentioned," passed April 19, 1794. 3 Sm. L,. 143, absolutely. Sections 40, 41 and 42 of an act entitled "An Act relating to registers and registers' courts," approved March 15, 1832, P. L. 135, absolutely. Sections i to 4 inclusive, 52, and 55 to 60 inclusive of an act entitled "An Act relating to orphans' courts," approved March 29, 1832, P. L. 190, absolutely. Sections 52 to 57 inclusive of an act entitled "An Act relative to the organization of the courts of justice," approved April 14, 1834, P. L. 341, absolutely. Section 4 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 orphans' courts,' " approved April 14, 1835, P. L. 275, absolutely. Section 2 of an act entitled "An Act supplementary to the various acts relating to orphans' and registers' courts, and ex- ecutors and administrators, and the act relating to the measure- ment of grain, salt, and coal," approved June 16, 1836, P. L. 682, absolutely. Section 19 of an act entitled "An Act relating to the jurisdic- tions and powers of courts," approved June 16, 1836, P. L. 784, absolutely, and Sections 20, 21 and 22 of the same act in so far as they relate to the orphans' court. Section 8 of an act entitled "An Act to confer upon the orphans' court of Lancaster County certain powers in relation to the real estate of John Lindemuth, deceased, and for other purposes," approved April 4, 1843, P- L. 131, in so far as it relates to the orphans' court. Sections 2 and 3 of an act entitled "An Act relative to lien creditors becoming purchasers at judicial sales, and for other purposes," approved April 20, 1846, P. L. 411, in so far as they relate to the orphans' court. Section 2 of an act entitled "A further supplement to an act, entitled, 'An Act relating to executions,' passed the sixteenth day of June, one thousand eight hundred and thirty-six," approved April 21, 1846, P. L. 430, absolutely. Section 18 of an act entitled "An Act relating to the bail of executrixes; to partition in the orphans' court and common ORPHANS' COURT ACT— Section 24 95 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 auditor's reports ; and to amend and alter existing laws relative to the ad- ministration 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. Section i of an act entitled "An Act relating to official seals," approved March 6, 1854, P. L. 155, in so far as it relates to the orphans' court. An act entitled "An Act relative to the perpetuation of testi- mony in cases of lost records," approved April i, 1863. P. L. 205, absolutely. Sections 2, 3, 4, and 6 to 10 inclusive of an act entitled "An Act relating to the organization and jurisdiction of orphans' courts, and to establish a separate orphans' court in and for counties having more than one hundred and fifty thousand in- habitants, and to provide for the election of judges thereof," approved May 19, 1874, P. L. 206, absolutely. An act entitled "An Act authorizing the holding of orphans' courts by other than the regularly commissioned judges in certain cases," approved March 4, 1875, P L. 5, absolutely. An act entitled "An Act relating to orphans' courts," approved March 18, 1875, P. L. 29, absolutely. An act entitled "An Act authorizing the president or additional law judges of the courts of common pleas to hold courts of quarter sessions, and oyer and terminer and orphans' courts, in certain cases," approved April 7, 1876, P. L. 19, in so far as it relates to the orphans' court. An act entitled "An Act to provide for the appointment of a president judge of the separate orphans' courts, and to provide for the commission thereof,'' approved May 24, 1878, P. L. 131, absolutely. An act entitled "An Act to regulate the compensation of au- ditors and commissioners," approved June 4, 1879, P. L,. 84, in 96 ORPHANS' COURT ACT— SemoN 24 so far as it relates to auditors and commissioners appointed by the orphans' court. An act entitled "An Act to amend section three of the act of assembly of May nineteenth, one thousand eight hundred and seventy-four, entitled 'An Act relating to the organization and jurisdiction of orphans' courts, and to establish a separate orphans' court in and for the counties having more than one hundred and fifty thousand inhabitants, and to provide for the election of judges thereof, fixing the salaries of judges of separate orphans' courts,' " approved June 13, 1883, P. L. 91, absolutely. An act entitled "An Act relative to the transfer of orders and decrees for the payment of money for the purpose of lien and execution into other counties than those where they were original- ly rendered," approved June 5, 1885, P. L. 78, in so far as it re- lates to orders and decrees of the orphans' court. An act entitled "An Act relative to the granting of citations and rules to show cause, by the courts of this commonwealth," approved May 7, 1889, P. L,. 102, in so far as it relates to the orphans' court. An act entitled "An Act requiring all public records within this commonwealth to be kept in the English language," approved May 31, 1893, P. L. 188, in so far as it relates to papers filed or recorded in the orphans' court or the office of the clerk thereof. An act entitled "An Act to authorize the judges of separate orphans' courts to hear and determine proceedings in equity, at the request of the judges of the common pleas," approved April 18, 1905, P. L. 208, absolutely. An act entitled "An Act authorizing the parties in interest, or their counsel, to select auditors and masters needed in judicial proceedings except in divorce cases," approved April i, 1909, P. L,. 95, in so far as it relates to proceedings in the orphans' court. An act entitled 'An Act to provide for the taking of testimony to be used in any of the civil courts of record in this common- wealth of witnesses residing in any other state or in any foreign country," approved June 8, 191 1, P. L. 709, in so far as it relates to the orphans' court. An act entitled "An Act to authorize the judges of separate orphans' court, at the request of the judges of the common pleas, to hear and determine all issues in the court of common pleas. ORPHANS' COURT ACT— Section 24 97 courts of oyer and terminer and general jail delivery, and courts of quarter sessions of the peace," approved July 19, 1913, P. L. 844, absolutely. An act entitled "An Act to authorize the judges of the courts of common pleas, of judicial districts having separate orphans' courts, to hear and determine all matters in such courts, at the request of the judges thereof," approved April 21, 191 5, P. L. 156, absolutely. All other acts of assembly, or parts thereof, that are in any way in conflict with this act, or any part thereof, are hereby repealed. THE REVISED PRICE ACT of June 7, 1917, (P. L. 388) Preliminary Note by Commission. The Act of April 18, 1853, P L. 503, commonly called the Price Act, from the name of its draftsman, has been extremely beneficial in its results and no fundamental changes have been considered necessary. It has, however, been amended by numerous statutes, and the Commissioners have endeavored in this revision to arrange its provisions in more symmetrical order and to consol- idate in it the changes that have been made from time to time. The notes that have been annexed to the several sections in the revised act as now reported sufficiently indicate the changes that have been made in phraseology and those that are due to amend- ments. TABLE OF CONTENTS The Revised Price Act, Section i. What relief may be granted Section 2. Cases in which court may grant relief, . . Section 3. Existing laws authorizing sales of real estate, and existing powers to do any acts enumerated in section one, not im- paired Section 4. Petition, citation, and notice, Section 5. Who shall execute decrees Section 6. Appointment of trustee to make sale and invest proceeds where minors have re- mainder interests, Section 7. Effects of decree, Section 8. Title transferred, Section 9. Payment or foreclosure of mortgage Section 10. Purchase- or mortgage-money, et cetera, how held and applied ; maintenance and education of minors, l8g Section 11. Application of moneys to payment of liens or improvement of real estate, . . 395 190 Section 12. Appointment of master to report on ex- pediency of granting application, 191 98 I9I7 Section Pamphlet Number Laws Herein 388 167 390 168-174 391 175-181 392 182 183 393 184 i8s 186 187 394 188 REVISED PRICE ACT— Contunts— Title 99 1917 Section Pamphlet Number Laws Herein Section 13. Bond of person or corporation carrying out decree, 192 Section 14. Notice of public sales, 396 '93 Section 15. Securing unpaid purchase-money by mortgage I94 Section 16. Acknowledgment of deeds, mortgages, and leases, I9S Section 17. Effect of death, removal, disqualification, or irregularity in appointment, of fidu- ciary designated to carry out decree, . . 196 (a) Where only one fiduciary ; conveyance or mortgage, 196 (b) Where joint fiduciaries; conveyance or mortgage, 397 I97 (c) Where sale has not been effected, 198 (d) Effect of sale, conveyance, or mortgage,.. 199 (e) Title of purchaser or mortgagee not affected by revocation of letters or re- moval of fiduciary after sale or mort- gage made 200 (f) Irregularity or defect in original appoint- ment of fiduciary not to affect title of purchaser or mortgagee, 398 201 Section 18. Sale or mortgage to the fiduciary, 202 Section 19. Real estate in the same or different counties, 203 (a) Where real estate wholly in one county, 203 (b) Where real estate divided by the county line 204 Section 20. Private sales, 399 205 (a) Power to authorize or direct, 205 (b) Objections to sales, 206 Section 21. Return and confirmation of sales 207 Section 22. Discharge of liens, 208 Section 23. No obligation to see to application of purchase-money, 209 Section 24. Appeals, 400 210 Section 25. Short title section, 211 Section 26. Repealer, 400-3 212 167. TITLE. An Act Relating to the jurisdiction, poweis and procedure of the or- phans' court and the court of common pleas as to sales, mort- gages, conveyances on ground rents, leases, extinguishment of lOO REVISED PRICE ACT— TiTW ground rents, partition, exchange, squaring and adjusting of lines between adjoining owners, consolidation and combination of min- ing lands and the leasing thereof, the joining by owners of un- divided interests in making and taking conveyances in order to change the route or location of any right of way or passage over adjoining or other lands, and the subdivison of premises so as to command the highest price or greatest rents, and, for such pur- pose, the laying out or dedication of roads, streets, and alleys or the vacation of such as have not been accepted by the public authorities, where the court shall be of opinion that such decree will be to the interest and advantage of all those interested, and where the legal title is held by minors, lunatics, habitual drunkards or weak-minded persons, a married person whose spouse is a lunatic or has abandoned him or her for one year or has been absent and unheard of for seven years, by corporations having no capacity to convey or by any unincorporated association, by any religious, beneficial or charitable society or association in- corporated or unincorporated, and the title is subject to forfeiture if real estate is held in excess of the amount prescribed by its charter or by law, by a corporation or individual or individuals and is subject to a trust of any description whatever, by any person as to whom a presumption of death may have arisen, or any interest wherein is held by any person under legal disability to dispose thereof ; where the legal title is an estate tail or is subject to the lien of debts of a decedent not of record, con- tingent remainders, executory devises, or remainders to a class, some or all of whom may not be in being or ascertained ; where estates shall have been devised or granted for special or limited purposes, where there is a power of sale but the time may not have arrived for its exercise, any preliminary act may not have been done to bring it into exercise, the time limited for its exer- cise may have expired, or any one or more persons required to consent or join in its exercise may be non compos mentis, have removed out of the state, have died, refuse to act, unreasonably withhold consent or be absent and unheard of ; where there has been or shall be a defective appointment in any deed or will and the necessary power is not given to the executor, devisee or ap- pointee to make sale and conveyance ; where a trust has been created and no power conferred on the trustee to do any of the acts which the court is hereby empowered to authorize or con- firm; and to the effects of such decrees. REVISED PRICE ACT— Section i ioi Note. — This act is, in substance, a revision of the Price Act of April i8, 1853, P. L. 503, with its supplements. The Commissioners acknowledge their indebtedness to Roland R. Foulke, Esq., of the Philadelphia Bar, for valuable assistance in the drafting of the act. 168. WHAT RELIEF MAY BE GRANTED. Section i. Be it enacted by the Senate and House of Repre- sentatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That the orphans' court, in all cases where real estate, or a ground rent issuing thereout,^ shall be or shall have been ac- - quired by descent or last will, partly by deed and partly by descent or last will,^ or by purchase^ by a trustee, executor or guardian, and in all other cases the court of common pleas of each county of this commonwealth, shall have jurisdiction with respect to real estate situate within the county, and, in the cases hereinafter ' specified, to authorize* or confirm' : — Note. — This is derived from Section i of the Price Act, 4 Purd. 3999, and supplements as noted below. It has been divided into clauses for the sake of clearness and convenience of reference. The following clauses are recommended for omission : (i) Purchase of other real estate when needful (adjoining) to that already owned by such party, or useful to the business thereon carried on or when necessary to protect any security or rent on property exposed to judicial sale. Provided that no corporation shall be so authorized to purchase beyond its charter license. (2) Every power to sell in fee simple real estate created by deed or will shall be taken to confer authority to sell and convey, reserving ground rents or rents in fee, and the same to release and extinguish, according to law. ^The words ''or a ground rent issuing thereout" are added to make clear that the jurisdiction extends to ground rents purchased, etc. ^These words incorporate the provisions of the supplement of April 27, 1855, P. L. 368, Section 5, 4 Purd. 4031. The confirmatory act of April 21, 1856, P. L. 486, Section i, 4 Purd. 4034, may be omitted. ^The words "by purchase by a trustee, executor or guardian" are in- serted to make clear that the jurisdiction of the orphans' court refers to these cases, and dissipate any idea that the jurisdiction under the pre- vious words is conferred only where the title has been acquired by gift under a will or deed. *The cases in which the court may act come first in the Price Act. The proposed revision first collects together from the act and the sup- plements the various dispositions authorized. The advantages are that these are all brought together and it is made clear that the court may make any of the dispositions in any of the cases where jurisdiction is conferred. I02 REVISED PRICE ACT— Section i (o) ""Confirm." This word incorporates the provisions of the Act of April 13, 1854, P. L. 368, Section 3, 4 Purd. 4030. See Behringer's Est., 265 Pa. in; 108 Atl. 414. This act does not authorize the orphans' court or confer jurisdiction thereon to ratify sales and exchanges of real estate under a trust created by deed. The word "trustee" used in connection with the words "exec- utor or guardian" clearly indicate that the trustee contemplated therein is of a testamentary character or of one appointed by the orphans' court on connection with a decedent's estate, and that it was not intended that jurisdiction should be conferred upon the orphans' court in case of a trust inter vivos or a trust of any other kind than testamentary in character so that a proceeding in the orphans' court for the sale or ex- change of lands by a trustee, who holds under a deed of trust, will not confer marketable title. Garrison's Est., 65 P. L. J. 778. A trustee appointed in another state to execute a trust created by the will of a decedent, domiciled in that state, there being no power or direc- tion to sell contained in the will, will not be authorized by an orphans' court of Pennsylvania either under this act or the Fiduciaries Act to sell real estate in this state. Jones' Est. 47 Pa. C. C. 463, 28 Dist. 282. While under the act the court undoubtedly has power to confirm a sale which it could have authorized, yet it cannot allow a sale not author- ized by the act, where by will testator gave the real estate to his wife for life with remainder to his children, whose guardian, the petitioner, had no status with relation to the real estate. A mere averment that the sale would be for the "best interest and advantage of the children of which the petitioner is guardian'' cannot confer jurisdiction. Maule's Est., 37 Lane. 231. Where it is to the interest and advantage of the parties interested the court, under this act, has authority to decree a sale of decedent's real estate against the objections of some of the living owners who are sui juris. Jefferies' Est., 37 Lane. 435. Under this act the court of common pleas has jurisdiction to entertain the petition of trustees of a church to borrow money, where due notice of such application has been given. In re St. Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327. 169. SALES OF REAL ESTATE, ETC. (a) The sale, mortgaging, conveying on ground rent, and leas- ing thereof, of the extinguishment or assignment of ground rents issuing thereout; The words "extinguishment or assignment of ground rents" are in- serted to make clear that the court has jurisdiction to direct the extin- guishment or assignment of a ground rent, as to which there is now some doubt. There is no need for a petition by a trustee to extinguish a ground rent, where from the facts involved there is no room for the exercise of REVISED PRICE ACT— Section i (o), (&), (c), (d), (e) 103 discretion by the court and its function would become purely ministerial. The Revised Price Act makes no change that affects the case. The words "extinguishment or assignment of ground rents" were added to remove a doubt that had arisen in the profession and make it clear that the court might decree an extinguishment as well as a sale or assignment of a ground rent in cases where the court is given jurisdiction under the provisions of the act. Janney's Est., 27 Dist. 709. 170. AMICABLE PARTITION, ETC. (b) The amicable partition and exchange thereof ; In the Price Act, Section i, and incorporating act of May 23, 1913, P. L,. 345, 6 Purd. 7051, in connection with the clauses in the next section conferring jurisdiction where the legal title is held by persons under dis- ability, fiduciaries, etc. 171. SQUARING AND ADJUSTING LINES. (c) The squaring and adjusting of lines between adjoining owners ; Taken from Section 7 of the Price Act, 4 Purd. 4027. The words '"without public or private sale" are recommended for omission, as the words "squaring and adjusting" sufficiently describe the transaction and necessarily exclude the idea of a sale. 172. CONSOLIDATION OF MINING LANDS. (d) The consolidation and combination of mining lands with other adjoining mining lands, so that they shall form one tract, and the leasing thereof in such manner that the several persons interested therein shall be seized of undivided interests in the whole, proportionate to their several undivided interests before such combination and consolidation, the rents or royalties received under the lease to be apportioned among them in like propor- tions. This incorporates the Act of June 8, 1874, P- L- 277, Section i, 4 Purd. 4033- 173. RIGHTS OF WAY. (e) The joining by owners of undivided interests in making and taking conveyances, in order to change in part or in whole the route or location of any right of way or passage existing over and upon adjoining or other lands This incorporates the Act of April 18, 1864, P. L. 462, Section i, 4 Purd. 4031. The words "without public or private sale" are recommended for omission for the reason set forth in note 8, supra. 104 REVISED PRICE ACT-Sbctions i (/)-2 174. SUBDIVISION OF PREMISES; DEDICATION OF STREETS. (/) The subdivision of the premises so as to command the highest price or greatest rents, and for such purpose, where the premises shall admit of or require it, the laying out and dedica- tion of roads, streets and alleys, or the vacating of such as shall not have been paid for or received into actual use by the public, if found to be inconvenient and to make an unprofitable division of the property i'^^ Provided, That such court shall be of the opinion that such decree wrill be to the interest and advantage of all those interested therein and without prejudice to any trust, charity or purpose for which the real estate or ground rent shall be held and with- out the violation of any law which may confer an immunity or exemption from sale or alienation. iiTaken from Section 4 of the Price Act, 4 Purd. 4022. It is necessary in order for the court to reach a conclusion that a decree will be to the interest and advantage of those interested "that such facts shall be set out in the petition that will enable the court to form an opinion, such as the rental value of the property cost of maintenance in the way of repairs, taxes, water rent and other charges and such other facts as to dilapidation and decay, if any. It is not sufficient to say in the petition that it is to the interest of the minor that the sale be carried into effect. Such a statement is the opinion of the petitioner, which is, of course, of value, but it does not meet the requirements of the court which requires that the court shall conclude that it is for the best interest of the minor that the sale be made ; and that conclusion can only be based upon facts contained in the petition, or by the taking of testimony before an auditor or the court." Scott's Estate, 49 Pa. C. C. 295. A petition will be refused which does not disclose the name of the proposed purchaser and is silent as to the fact that the sale can be made without prejudice to any trust, charity or purpose for which the real estate shall be held and without the violation of any law which may confer an immunity or exemption from sale or alienation. Scott's Est., 49 Pa. C. C. 295. 175. CASES IN WHICH COURT MAY GRANT RELIEF. Section 2. The several courts aforesaid shall exercise the jurisdiction conferred by Section i of this Act in all cases: Note. — This is derived from Section 2 of the Price Act, amended by the Act of June 14, 1897, P. L. 144, Section i, 4 Purd. 4003. The following clauses are recommended for omission : Where a decedent shall have contracted by parol to sell real estate, and those interested do not think it expedient to plead the statute requiring REVISED PRICE ACT— SecrioN 2 (a) 105 such contracts to be in writing to enable the purchaser to recover the real estate agreed to be sold. When real estate shall have been purchased or any ground rent reserved and be held by any person acting in a trust of fiduciary capacity. Section 2 of the Price Act. Whenever in proceedings in partition in equity it shall appear that real estate cannot be divided without prejudice to the interests of the owners. This clause is recommended for omission at it is now superflous in view of the provisions of the Act of March 14, 1857, P. L. 97, Section 3, and the later statutes relating to partition in equity. See Act of July 14, 1897, P. L. 268, 3 Purd. 3417. 176. TITLE IN MINORS, ETC. (a) Where the legal title is held: (i) By minors, lunatics or habitual drunkards, so duly found by inquisition, or by weak- minded persons for whom guardians have been appointed.^ (2) *By a wife whose husband is a minor, or by a married minor whose spouse is a minor, or by a married woman or married man whose spouse is a lunatic, or has abandoned him or her for one year or has been absent and unheard of for seven years. ^ (3) By corporations of any kind having no capacity to convey or by any unincorporated association.^ (4) By any religious, beneficial or charitable society or association incorporated or unincorporated, and the title is subject to forfeiture if real estate is held in excess of the amount prescribed by its charter or now or hereafter pre- scribed by law.^ (5) By a corporation of any kind or individual or individuals and is subject to a trust of any description what- ever.* (6) By any person who may have been absent and unheard from for seven years under those circumstances from which the law would presume his or her decease.' (7) Or any interest therein is held by any person under legal disability to dispose thereof.^ ^The words "or weak minded persons" have been added; but it is not intended that the provisions of Section 6 of the Act of May 28, 1907, P. L. 292, 6 Purd. 6569, should be repealed. ^This section throws together and makes similar the provisions as to the disability of the spouse of a married man or a married woman. The case of the minority of the wife is omitted as unnecessary in view of the Act of March 22, 1865, P. L. 30, i Purd. 1155. In providing for the case of a woman with a lunatic husband, this section incorporates to that extent, the ambiguous Act of April 11, 1866, P. L. 780, 4 Purd. 4034, which extends only to the common pleas. ♦That portion of clause (2) in italics was added by the amendatory Act of May 2, 1919, (P. L. 11 1). io6 REVISED PRICE ACT— Suction 2 (a) 'Several cases are to be provided for (o) Corporations having no capacity to convey, a very rare case ; (6) Unincorporated societies, etc., vifliich could not convey at law ; (c) Incorporated and unincorporated re- ligious societies, etc., which may hold real estate in excess of the amount prescribed by law. The words of the Price Act are "Where real estate shall be held for or owned by ♦ * * religious, beneficial or charitable societies or associations, incorporated or unincorporated," which words do not make clear just what the exact jurisdiction conferred is. *This is designed to cover all cases of trusts and make unnecessary the words of the Price Act which are as follows: "When real estate shall be held for minors, lunatics, habitual drunkards so declared by inquisition * * * the sole and separate use of married women, for religious, beneficial or charitable societies or associations, incorporated or unincorporated, or for any other corporation, or by trustees for any public or private use or trust, and generally in all cases where estates have been or shall be devised or granted in trust or for special or limited purposes." ^Taken from Price Act, no change. ^Taken from Price Act. Title held under a declaration of trust whereby the legal owner agrees to convey the real estate "unto any person or persons named and desig- nated" "upon request or requests made to us in writing" by the equitable owner, who subsequently died, is not held under a trust contemplated by clause (s) authorizing the court to act where property is "subject to a trust of any description whatever.'' The trust here is passive. All pos- sible purposes of the trust ended on the death of the equitable owner. Title vested in her heirs or devisees whose remedy is by partition. Behringer's Est., 265 Pa. in; 108 Atl. 414. Under clauses (3) and (4) the court of common pleas has jurisdiction to entertain the petition of the trustees of a church to borrow money, where proper notice of such application has been given. In re St. Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327. Where an orphan house was created by a will, whereunder it was pro- vided that no part of the estate should ever be sold or in any manner be severed from the orphan house, but that it should remain united thereto whole and undivided forever, but the testator also added in another part of his will "so far as human frailties will permit," the court decided on a petition by the charitable corporation, trustee, for permission to lay out in lots to be sold at public sale subject to ground rent a certain tract unimproved and unproductive for a long time, yielding insufficient revenue to pay the taxes, after due notice and hearing and it appearing to be to the best interest of the trust estate that, under the above section of the Revised Price Act and generally from the intent of the whole act itself said petition should be granted and in so holding the court said : "In Pennsylvania, prior to 1853, such matters were disposed of by the Legislature. In that year the power was placed in the court by the Price Act CApril 18, 1853, P. L. S03) which, in the preamble provided: " 'Whereas, The general welfare requires that real estate should be freely alienable, and be made productive to the living owners thereof. And, REVISED PRICE ACT—SecrioN 2 (a), (6) 107 whereas, in matters which the judiciary is competent to hear and decide, it is expedient that the courts should adjudicate them after a full hearing of all parties rather than that they should be determined by special legislative acts and upon ex parte hearing.' "This authority is now given by the Revised Price Act of June 7, 1917, P. L. 388. ■'Concerning this legislation, it was said by Agnew, J., in Burton's App. 57 Pa. 213-219: 'The design is well expressed in the preamble of the act, to make real estate freely alienable and productive to the living owners thereof. Though not unmindful of the future, and of the duty owing to posterity, the special interests of society belong to the men of today, rather than to those of another generation. The intention of this law is manifestly to unite the cords which fetter the real estate of the common- wealth, whether bound around it by the disabilities of persons, the limita- tions of contingent interests, or by restrictions to limited uses and pur- poses, and at the same time to preserve to every interest its proper share in the result. This law being beneficent and remedial is not to be so construed as to defeat its main intent." "After considering all of the authorities above quoted, we are of opinion that this court has authority under the Revised Price Act of 1917, to grant the prayer of this petition, and it is so ordered." Prey's Est., so Pa. C. C. 468. See also Myers v. Crick, 271 Pa. 399. 177. ESTATES TAIL AND REMAINDERS. (b) Where the legal title is an estate tail or is subject to contingent remainders, executory devises, or remainders to a class, some or all of whom may not be in being or ascertained at the time of the entry of the decree. In this clause are thrown together all cases of legal limitations of the title, and the language incorporates, so far as gifts to a class are con- cerned, the provisions of the Acts of June 14, 1897, P. L,. 144, Sec. i, 4 Purd. 4003 ; June 15, 1897, P. L. 159, 4 Purd. 4033. The Act of June 14 provides for vested remainders which are liable to open and let in after- born children. The Act of June 15 provides for "Lands ♦ * * devised or granted for life or for the life of another, and with remainder limited to a class of persons, some or all of whom may not be in being at the time of the decree." "The entry of the decree.'' These words are better English than the words "the time of the decree," which were probably sufficiently plain. The words "or ascertained" are added because a case may occur of a remainder to a class of persons in being but not ascer- tained, e. g. "remainder to the children of my daughter living at the time of her death." The children born are in being but not ascertained as the ones who will take at the death of the daughter. The words "the lien of debts of a decedent not of record" are omitted in line 2, this provision seeming to be unnecessary since the lien has been reduced by the Fiduciaries Act to one year (see 418 infra). See Patterson v. Reed, 260 Pa. 319, 103 Atl. 735. To8 REVISED PRICE ACT-Section 2(c), (d), (e), (/) 178. ESTATES FOR SPECIAL PURPOSE. (c) In all cases where estates shall have been devised or granted for special or limited purposes. These words may appear to be superfluous, but it is thought best to retain them. 179. INCOMPLETE POWER OF SALE. (d) Where there is a power of sale but (i) the time may not have arrived for its exercise, (2) any preliminary act may not have been done to bring it into exercise, (3) the time limited for its exercise may have expired, (4) any one or more persons required to consent or join in its exercise may be a minor, non compos mentis, removed out of the state, have died, refuse to act, unreasonably withhold consent, or be absent and unheard of. Taken from the Price Act. The words "be absent and unheard of" are added. The words "a minor'' are inserted to give, in cases under this Act, the power conferred by Section 15 of the Act of July 27, 1842, P. L. 439, 4 Purd. 4885, upon the common pleas. Where petitioner, surviving trustee under a declaration of trust, has no "power of sale" but only an obligation "to convey the real estate described — upon request or requests made — in writing," she has no dis- cretion in the matter and her duty is to obey the wish or whim of the real owners, whether she believes it to be wise or otherwise, provided only it is expressed "in writing." Such a matter is not within the contemplation of this section of the Act. The trust is passive and title vested in the equitable owners. Behringer's Est., 265 Pa. in, 108 Atl. 414. 180. DEFECTIVE APPOINTMENT. (e) Where there has been or shall be a defective appointment in any deed or will and the necessary power is not given to the executor, devisee or appointee to make sale and conveyance of real estate. Taken from Section 2 of the Price Act. 181. TRUST WITHOUT POWER OF SALE. (/) Where a trust has been created and no power conferred on the trustee to do any of the acts which the court is em- powered to authorize or confirm under the provisions of Section I hereof .'^^ Such jurisdiction may be exercised whether the ownership or interest in real estate be held in severalty, joint tenancy or ten- REVISED PRICE ACT— Seci'ioNs 2 (/)-3-4 109 ancy in common, or by husband and wife as tenants by entire- ties." iiAdded because the case where a trustee has no power of sale is not expressly covered by the Price Act. i^The word "coparceny" in the original act is omitted, as this tenancy is unknown in Pennsylvania. This clause relates only "to a trust which is valid and subsisting at the time relief is sought and not to one which is purely passive, or having once been active has ceased and determined." Hence, title held under a declaration of trust whereby the legal owner agrees to convey the real estate "unto any person or persons named and designated — upon request or requests — made — in writing" by the equitable owner, who subsequently died, is not held under a trust contemplated by this section. The trust here is passive. All possible purposes of the trust ended on the death of the equitable owner and title then vested in her heirs or devisees whose remedy is by partition. Behringer's Est., 265 Pa. iii, 108 Atl. 414. See also Myers v. Crick, 271 Pa. 399. 182, EXISTING LAWS NOT IMPAIRED. Section 3. Nothing herein contained shall be taken to repeal or impair the authority of any act of assembly, general or private, authorizing the sale of real estate by decree of court or otherwise, nor to affect or impair any rights or powers, otherwise existing in any person or corporation to do any of the acts which the court is empowered to authorize or confirm under the pro- visions of Section i of this Act. Note. — This is derived from Section 2 of the Price Act, amended by Act of June 14, 1897, P. L. 144. 4 Purd. 4003, 4016. 183. PETITION CITATION AND NOTICE. Section 4. All jurisdiction conferred by this act on the or- phans' court or the court of common pleas shall be exercised on the petition of any party in interest supported by oath or affirmation ; and if all proper parties shall not voluntarily appear as petitioners or respondents, the court shall fix a day for them to appear and cause a citation to be served on all persons in being who shall not have appeared, and who shall have any present or expectant interest in the premises, warning them to appear, and that they shall be heard on the day designated, and for those who cannot otherwise be served, cause advertisement to be made in manner most likely to afford notice, and service made in any part of the United States and the territories and possessions thereof, or elsewhere, with oath or affirmation of the no REVISED PRICE ACT— Sscwons 4-S-6 fact, taken before any judge or justice of the peace or notary public, or any person authorized by the laws of the United States to take oaths or affirmations in foreign countries, and filed of record, shall be good service. Service having been made as aforesaid, the court shall, on the day fixed, make such decree as shall be proper in the premises. Guardians shall be notified and appear for their wards; and if minors have no guardian, the court may appoint one for them in the manner now or hereafter prescribed by law for the appointment of guardians, and such appointment may be made on the petition of any party interested with notice to the persons who shall by law be charged with the duty of petitioning for the appointment of a guardian. Commit- tees and guardians shall be notified and appear for lunatics, habit- ual drunkards and weak-minded persons, and in each of such cases notice shall be given to the next of kin. Trustees shall be notified and appear for the cestuis que trust, provided that cestuis que trust of age and sound mind, having vested interests or interests subject to a condition precedent, shall also be notified, and all cestuis que trust not in being or unascertained shall be represented by the trustees aforesaid. Nore. — This is founded on Section 3 of the Price Act, 4 Purd., 4017, and has been extended to include parties in interest in foreign countries or to authorize service in foreign countries. See forms 58 to 66. See Act of July 11, 1917, (P. L. 790) Sees. 623-4 infra. 184. WHO SHALL EXECUTE DECREE. Section 5. In all cases where, under the provisions of this Act, sales, mortgages, leases, or conveyances on ground rent shall be authorized or directed, the same shall be made by executors, administrators, guardians, trustees, committees or owners having a present vested interest, or trustees appointed for the purpose, as the court may order. Note. — This is founded on a part of Section 4 of the Price Act, 4 Purd. 4019, with the addition of the provision as to trustees appointed for the purpose. 185. APPOINTMENT OF TRUSTEES TO MAKE SALE AND INVEST PROCEEDS WHERE MINORS HAVE REMAINDER INTERESTS. Section 6. Where lands and tenements are held by will or otherwise, for life or pur autre vie, by any person or persons, REVISED PRICE ACT— SECTIONS 6-7 in with remainder to any minor or minors, and it shall appear to the court of the proper county, that it would be to the interests of such minor or minors that the same should be sold, in every such case upon the application of the tenant or tenants for life, or pur autre vie, as the case may be, the said court shall appoint a trustee to make sale of said lands; and the said trustee shall receive and hold the proceeds of such sale in trust for the parties in interest therein, and shall invest the same in investments authorized by law, and shall pay the interest thereof, as it shall accrue, to the tenants for life, or pur autre vie, until the estate for Hfe, or pur autre vie, shall have terminated, and shall then pay over the principal sum to the person or persons entitled to such remainder. Note.— This is Clause II of Section i of the Act of April 3, 1851, P. L. 305, I Purd. 1 1 19, altered by substituting "invest the same in investments authorized by law" for "loan the same upon good real estate security, upon bond and mortgage," and by omitting the word "'orphans' " in the fourth line, and the reference to confirmation of the sale. The remainder of Section i, and Sections 2, 3 and 4 of the Act of 1851 are recommended for repeal as being sufficiently covered by other sections of the present draft. See form 67. 186. EFFECTS OF DECREE. Section 7. Every such decree made by the court shall have the effect as to the title authorized to be transferred (a) Of a common recovery to bar an estate tail or a remainder, whether contingent or to a class, (b) Of barring executory devises, (c) Of defeating the right of the commonwealth to forfeit real estate that may have been held by or for any corporation in excess of the amount now or hereafter duly authorized by law, only, how- ever, in the case where no proceedings to procure a forfeiture shall have been commenced before the filing of the petition, (d) Of discharging the lien of decedents' debts not of record. In all cases where the proceedings shall be for the purpose of freeing the title of any of the limitations or def easibility described in this section, that purpose shall be set forth in the petition in addition to the explanation of the title. N0T6. — This is derived from Sections S and 6 of the Price Act, 4 Purd. 40124-5. The jurisdiction to sell for the purpose of discharging the lien of debts not of record is omitted above as unnecessary, but this does not prevent the discharge of such liens by a sale under the Act. In the 112 REVISED PRICE ACT— Sections 7-8-9 last sentence, "or liens" is omitted after "limitations," and "or defeasibility" substituted. 187. TITLE TRANSFERRED. Section 8. The title transferred in pursuance of any such decree of the court shall be such as is authorized in the decree, which title shall be indefeasible by any person ascertained or unascertained or any class of persons mentioned in the petition or decree and having a present or expectant interest in the premises and shall be unprejudiced by any error in the proceed- ings of the court, and where security shall be entered in accord- ance with the provisions hereof, no party who shall pay over money in pursuance of the decree of the court shall be liable to see to the application thereof, or be in any manner liable for or affected by any lien of debts of a decedent not of record, or by any trust, limitation of, or defects in the title set out in the petition or decree in pursuance of which the money is paid over. NoTB. — This is derived from Section s of the Price Act, 4 Purd. 4023. 188. PAYMENT OR FORECLOSURE OF MORTGAGE. Section 9. In all cases where the court shall authorize or confirm the making of a mortgage, in any of the cases provided for in this Act, the title shall upon the mortgage being duly paid and satisfied of record revert to its former condition, except that nothing herein contained shall operate to extend the lien of the debts of a decedent not of record beyond the time now or here- after allowed by law, and upon legal proceedings being brought upon the mortgage or bond accompanying the same as may now or hereafter be provided by law and the title being sold at sheriff's sale, in pursuance of such proceedings, the surplus proceeds of the sale, if any, after paying the mortgage, with interest and all costs, and liens, which may by law be payable out of the fund, shall be paid over to the party who made the mortgage, or such other person as the court may direct or appoint for that purpose, to be held by him as part of the mortgage money and subject to the same liens or limitations, provided that the sheriff shall not pay over any such sum until such additional bond shall be filed as the orphans' court may require under the circumstances of the case. Note. — This is a new section, covering matters not provided for in the Price Act. See Myers v. Crick, 271 Pa. 399. REVISED PRICE ACT— Section io 113 189. PURCHASE OR MORTGAGE MONEY, ETC.— HOW HELD AND APPLIED; MAINTENANCE AND EDUCATION OF MINORS. Section 10. The purchase money, mortgage money, ground or other rents reserved or the title received in the case of an ex- change or partition, for the title subject to a lien or hmitation, shall be held for and appHed to the use and benefit of the same persons and for the same interests, legal or equitable, present or future, vested, contingent or executory as the title so sold, mort- gaged, conveyed on ground rent, let, partitioned or exchanged had been subject or held excepting only the case of an estate tail or the title of a corporation subject to forfeiture which in each case shall by the proceedings, without the necessity of a bond being filed by either the corporation or the tenant in tail, be con- verted into an absolute estate in fee-simple and all remainders, whether contingent or to a class, executory devises, and debts of a decedent not of record shall be transferred to the fund or title raised by the proceedings in pursuance of the decree, as to which fund or title they shall take efifect in like manner as they would have taken efifect as to the title transferred under the decree. The court shall make such order or orders from time to time as to the distribution or investment of such funds as may be requisite to protect the interest of all persons who are or may become entitled thereto or to any part thereof. In every case of a sale, mortgage, lease or conveyance on ground rent under the pro- visions hereof, the purchase money, mortgage money, ground rent or other rents reserved shall nevertheless have and retain the quality of real estate as respects the devolution under the intestate laws of the interest of any infant, lunatic, or person non compos mentis as whose property the land was sold, mort- gaged, leased or conveyed on ground rent. The court having jurisdiction may direct the application of such proceeds or part thereof for the maintenance and education of minor parties whose personal estate shall be insufficient for such purposes, or gen- erally for the maintenance or education of parties having the like interests vested or expectant, provided such moneys can be equally and equitably so applied and without diminution of the capital that may of right become the property of parties having unbarred interests or title in remainder, or by executory devise. NoTB. — This is derived from Section 6 of the Price Act, 4 Purd. 4025, and Section 2 of the Act of June 15, 1897, P. L. 159, 4 Purd. 4033. 114 REVISED PRICE ACT— Sectjons 11-12-13 190. APPLICATION OF MONEYS TO PAYMENT OF LIENS OR IMPROVEMENT OF REAL ES- TATE. Section ii. No principal moneys raised by sale or mortgage, as aforesaid, shall be expended for any other purpose than for the payment of liens upon or the improvement of the same real estate when mortgaged, or other real estate when held for the same uses and persons, except as provided in Section 10 of this Act; and it shall be the duty of the court to decree the proper application of all purchase moneys and rents, with the aid of an auditor when deemed necessary, to the discharge of liens and to parties interested, as and when they may be entitled. Note. — This is part of the proviso to Section 6 of the Price Act, 4 Purd. 4025. 191. APPOINTMENT OF MASTER TO REPORT ON EXPEDIENCY OF GRANTING APPLICA- TION. Section 12. In all cases where an application shall be made to the court for a decree authorized under any of the provisions of this Act, the court may appoint a suitable person as master to investigate the facts of the case, and to report upon the ex- pediency of granting the application and, in cases where authority is asked to make a sale or mortgage, upon the amount to be raised thereby ; and upon such report being made, the court may decree accordingly. Note. — This is copied from Section 16 (e) of the Fiduciaries Act (see 436 infra. See Act of July II, 1917 (P. L. 790) Sees. 623-4 infra. 192. BOND OF PERSON OR CORPORATION CARRY- ING OUT DECREE. Section 13. In all cases where the carrying out of any decree of the court under the provisions of this Act shall involve the receipt of money by the person carrying it out, the court shall direct the person acting under the decree to file a bond to the commonwealth in a sufficient amount conditioned for the proper application of all moneys to be received, which bond shall inure to the benefit of all parties interested and be executed by two individual sureties or by one corporate surety, approved by the REVISED PRICE ACT— Suctions 13-14 HS court, and before any such decree shall be executed, such bond, with sureties as may be required, shall be filed : Provided, That where a corporation duly authorized by law, shall be designated to carry out any such decree, the court may, in lieu of security as aforesaid, permit such corporation to enter its own bond with- out surety. Note.— This is copied from Section 16 (/) of the Fiduciaries Act (see 437 infra) which is founded in part on Section 6 of the Price Act, 4 Purd. 4026. Section 10 of the Price Act, 4 Purd. 4029, reads as follows : "The directions given in the sixth section of this Act in regard to the security to be given in cases of sales, mortgage, or letting of real estate, and the condition of the bond or security therein prescribed, shall apply to all cases of sales or mortgage of real estate by order of the courts of this commonwealth : Provided, That no decree for the sale, mortgaging, or letting of any real estate under the provisions of this Act, shall be made except when the president of the court, or the law judge or judges thereof, shall be present, and that the acts in relation to special courts, where the president judge shall be interested, related to parties in interest, or otherwise incapable of acting, shall apply to all such provisions." This section was apparently introduced in the Price Act to cure the inconsistency between Sections 4 and 6: Thorn's Appeal, 35 Pa. 47. The Commissioners recommend its repeal as unnecessary in the Revised Act. See form 23. Upon the entry of such security the court of common pleas has juris- diction to entertain the petition of the trustees of a church to borrow money due notice of such application having been given. In re St. Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327. 193. NOTICES OF PUBLIC SALES. Section 14. Whenever, by the provisions of this Act, it shall be lawful for the court to order the public sale of real estate, public notice of such sale shall be given by the person who is to make the sale, once a week for a period of three weeks before the day appointed therefor, by advertisement in at least one newspaper published in the county, if there be one, or if there be none, then in an adjoining county; and in all cases, notice shall also be given by handbills, one of which shall be posted at a conspicuous place on the real estate proposed to be sold, and at least three of which shall be posted at three of the most public places in the vicinity of such estate. Ii6 REVISED PRICE ACT— Sections 14-15-16-17(0) Note.— This is copied from Section 16 (p) of the Fiduciaries Act (see 438 infra) and, for the sake of uniformity, is substituted for the pro- visions of Section 4 of the Price Act, 4 Purd. 4021. 194. SECURING UNPAID PURCHASE MONEY BY MORTGAGE. Section 15. Whenever, under the provisions of this Act, the court has power to authorize or confirm a sale of real estate, the same may be made upon such terms as the court shall approve, all unpaid purchase money to be secured on the premises by mortgage. Note. — This is copied from Section 16 (h) of the Fiduciaries Act (see 439 infra) which is derived in part from Section 4 of the Price Act, 4 Purd. 4022. 195. ACKNOWLEDGMENT OF DEEDS, MORTGAGES AND LEASES. Section 16. All deeds, mortgages or leases executed in pur- suance of any decree of the court under the provisions of this Act may be acknowledged before any officer or person now or here- after authorized by the laws of this commonwealth to take the acknowledgment of deeds and other instruments of writing to be recorded therein. Note. — This section is designed to make the law relating to the ac- knowledgment of instruments executed under the authority of the Act similar to the general law prevailing in such cases. There seems to be no reason now for making any special distinction as to the acknowledg- ment of such instruments. The various acts supplementing the Price Act relating to acknowledgments are as follows: Act of April 13, 1854, P. L. 368, Section i, 4 Purd. 4029; April i, 1863, P. L. 187, 4 Purd. 4031 ; March 23, 1867, P. L. 43, Section i, 4 Purd. 4032; April 17, 1866, P. L. 108, as amended by Act of April 22, 1903, P. L. 241, 4 Purd. 4031. 196. EFFECT OF DEATH, ETC., OF FIDUCIARY DESIGNATED TO CARRY OUT DECREE WHERE ONLY ONE FIDUCIARY. Section 17. (a) In all cases where the sale of real estate shall be made by an executor, administrator, guardian or trustee under an order of, or confirmed by, the court, or where the making of a mortgage by such fiduciary shall be authorized by said court, and the letters testamentary or of administration shall be re- REVISED PRICE ACT— SitmoN 17(a), (6) 117 voked, or the executor, administrator, guardian or trustee shall be removed, or shall die, or become insane, or otherwise be in- capable, before a conveyance is made to the purchaser, or before a mortgage is executed and delivered, it shall be lawful for the successor of such executor, administrator, guardian or trustee, having first given security, to be approved by the said court, for the faithful appropriation of the proceeds of such sale, to execute and deliver to the purchaser a deed of conveyance for the estate so sold, on the purchaser's full comphance with the terms and conditions of sale, or to execute and deliver said mortgage. If there shall be no such successor who shall have given security as aforesaid, the said court shall have power, on petition of the purchaser, to direct the clerk of the court to execute and deliver to the purchaser the necessary deed of conveyance, on his full compliance with the terms and conditions of sale, paying into court the moneys payable, and executing and delivering to the clerk any bond and mortgage required by the said terms and conditions, which moneys and bond and mortgage shall remain subject to the disposition of the court ; or, where the making of a mortgage by a fiduciary shall be authorized by said court, the court, under the circumstances aforesaid, shall have power to direct the clerk of the court to execute and deliver such mortgage. The like proceedings may be had where an executor, adminis- trator, guardian or trustee shall neglect or refuse to execute and deliver such deed or mortgage for the space of thirty days after due notice of an order of the court requiring him to execute and deliver the same. Note. — This is modeled upon Section 16 (/) i of the Fiduciaries Act (see 441 supra). 197. WHERE JOINT FIDUCIARIES. (b) In all cases where the sale of real estate shall be made by co-executors, co-administrators, co-guardians or co-trustees under an order of, or confirmed by, the court, or where the making of a mortgage by such co-fiduciaries shall be authorized by said court, and if one or more of such co-fiduciaries shall be removed, or shall die, or become insane, or otherwise be incapable, before a conveyance is made to the purchaser, or before such mortgage is executed and delivered, said court may, upon the facts being made to appear by petition duly verified, authorize the surviving or remaining fiduciary or fiduciaries to execute and deliver to the Il8 REVISED PRICE act-Section 17(b), (c), (d), (e) purchaser a deed of conveyance for the real estate so sold, on the purchaser's full compliance with the terms and conditions of sale, or to execute and deliver such mortgage. Note.— This is modeled upon Section 16 (;) 2 of the Fiduciaries Act (see 442 infra). 198. WHERE SALE HAS NOT BEEN EFFECTED. (c) Where authority is or shall be given by decree of any court to executors, administrators, guardians or trustees to sell real estate, and any of such executors, administrators, guardians or trustees shall have died, been removed, become insane or other- wise be incapable, or cease to act, before a sale is effected, in all such cases said court may, upon the facts being made to appear by petition duly verified, authorize the surviving or remaining fidu- ciary or fiduciaries to effect such sales, with as full effect in all particulars, as if effected or executed by the executors, adminis- trators, guardians or trustees in office at the time the sale was originally decreed. Note.— This is modeled upon Section 16 (/) 3 of the Fiduciaries Act (see 443 infra). 199. TITLE OF PURCHASER OR MORTGAGEE NOT AFFECTED BY REVOCATION OF LETTERS OR REMOVAL OF FIDUCIARY AFTER SALE OR MORTGAGE MADE. ((f) Every sale made, and every deed or mortgage executed and delivered in pursuance of, and agreeably to the provisions of this section shall vest the property therein described in the grantee or mortgagee, as fully and effectually as if the same had been made, executed and delivered by all the fiduciaries to whom the authority to sell or mortgage was originally given. Note. — This is copied from Section 16 (;) 4 of the Fiduciaries Act (see 444 infra). 200. EFFECT OF SALE, CONVEYANCE OR MORT- GAGE. (e) In all cases of sales or mortgages under the order of, or confirmed by the court, the title of the purchaser or mortgagee shall not be affected by the subsequent revocation of the letters testamentary or of administration of the executor or adminis- trator making such sale or mortgage, or by the subsequent re- REVISED PRICE ACT— Sections 17 (e), (f)-iS 119 moval of the executor, administrator, guardian or trustee making such sale or mortgage. NoTfi. — This is copied from Section 16 (;') S of the Fiduciaries Act (see 44S infra). 201. IRREGULARITY OR DEFECT IN ORIGINAL AP- POINTMENT OF FIDUCIARY NOT TO AF- FECT TITLE OF PURCHASER OR MORT- GAGEE. (/) Whenever, in pursuance of proceedings in the court of any county, any person therein described as a trustee, guardian, executor, administrator, or as standing in any other fiduciary relation to the parties interested, shall grant and convey or mort- gage any real estate, in which proceedings security shall be duly entered by him or her, under the order or decree of the court, no irregularity or defect in his or her original appointment, or the absence of any proper qualification in respect thereto, shall affect the title of the grantee, purchaser or mortgagee or the liability of the sureties, but the same shall be as valid in all respects as if such irregularity or defect had not existed. Note. — This is copied from Section 16 (/) 6 of the Fiduciaries Act (see 446 infra). 202. SALE OR MORTGAGE TO THE FIDUCIARY. Section 18. Whenever any court, having jurisdiction under this act to decree a sale or mortgage of real estate, shall issue its order to any executor, administrator, guardian or trustee, specially appointed for the purpose or otherwise, to sell or mortgage such real estate, and shall, in any case within its jurisdiction, give authority to any executor, administrator, guardian or trustee, to bid at such sale, and shall confirm the sale to such fiduciary or shall authorize the making of such mortgage to any executor, administrator, guardian or trustee, the said court may make an order directing its clerk to execute a deed or mortgage, as the case may be, for said real estate to such purchaser or mortgagee, who shall give security and shall account for the amount of said purchase money or mortgage money, in the settlement of his accounts, to said court. Note. — This is copied from Section 16 (k) of the Fiduciaries Act (see 447 infra). See form 68. 120 REVISED PRICE ACT— Suctions 19 (a), (6) -20 (o) 203. REAL ESTATE IN THE SAME OR DIFFERENT COUNTIES,— WHERE WHOLLY IN ONE COUNTY. Section 19. (a) In all proceedings under the provisions of this act, where the real estate shall lie wholly within one county, the petition shall be presented only in the court of that county. Note. — This is a new clause in accordance with the proviso to Section i of the Price Act. 204. WHERE REAL ESTATE DIVIDED BY COUNTY LINE. (b) When an appHcation shall be made, under the provisions of this act, for the sale, mortgaging, leasing or other proceedings relating to real estate, through which real estate the line dividing two or more counties runs, the court of the county in which the mansion house is situated, or, if there be no mansion house, the court of the county where the principal improvements may be, or, if there be no improvements, the court of either county, may exercise jurisdiction as to the whole of such real estate, irrespec- tive of the county line; and any such sale, mortgaging, leasing or other decree relating to real estate, shall be as effectual as if the whole of such real estate had been within the county whereof said court has jurisdiction. Notices of said proceedings, as re- quired by this act, shall be given in all the counties in which the land is situated, and a certified copy of all proceedings shall be filed in the proper court of each county in which said land is situated. Any mortgage taken to secure the purchase money, or any part thereof, shall be duly recorded in each of the counties in which said lands lie, as required by law. Note. — This is derived from Section i of the Act of May 28, 1915, P. L. 635, 6 Purd. 7286, supplementary to the Price Act. The last two sentences have been made uniform with the provisions of Section 16 (/) 2 of the Fiduciaries Act (see 449 infra). 205. PRIVATE SALES,— POWER TO AUTHORIZE OR DIRECT. SECTION 20. (a) The courts of the several counties of this commonwealth, in all cases where, under the provisions of this act, such courts have power to order the sale of real estate, may authorize or direct a private sale, if, in the opinion of the court, REVISED PRICE ACT— SficrioNs 20 (a), (6)-2i 121 under all the circumstances, a better price can be obtained at private than at public sale, as where the interest shall be un- divided, or for any other sufficient cause. Note. — This is copied from Section 16 (m) 1 of the Fiduciaries Act (see 450 infra) and is intended to supersede so much of Section 4 of the Price Act as authorizes private sales. 206. OBJECTIONS TO SALES. (b) Any party interested as heir, devisee or intending pur- chaser, or any legatee whose legacy is, by the express terms of the will, or by law, charged on such real estate, may appear and object to such private sale on account of the insufficiency of the price, and, if such objection be sustained, may oflfer to give or pay a substantial increase for such property, and the court, at its discretion, may thereupon authorize or direct such sale, or refuse to authorize or direct the same, and accept any substantially increased offer, and may authorize the sale of such property to such new bidder upon compliance with the conditions of sale and giving such security as shall be directed by the court; or, such party interested or legatee may appear as aforesaid and object to such sale on any legal or equitable grounds : Provided, That nothing herein contained shall be construed to affect the existing law with respect to objections to public sales. NoTB. — This is modeled upon Section 16 (m) 3 of the Fiduciaries Act (see 452 infra). Under this section of the Act, a third person, desirous of purchasing the property and willing to pay more than the price set forth in the petition may appear and object to the confirmation of the sale and it is the duty of the court to accept any substantially increased offer over that offered by the purchaser in the petition. In the absence of a rule of court to govern the procedure as a matter of practice, offers should be in writing accompanied by a certified check for the increase. It was never intended that the parties should make oral bids in open court. Mauch's Est., 47 Pa. C. C. 490, 67 P. E. J. 308, 16 North, 405, 33 York 45. 207. RETURN AND CONFIRMATION OF SALES. Section 21. All public sales of real estate under the pro- visions of this act shall be subject to confirmation by said court; but in the case of private sales authorized or directed under the provisions of this act, no return or confirmation shall be necessary. Note. — This is modeled upon Section 16 (») of the Fiduciaries Act (see 453 infra). 122 REVISED PRICE ACT— Sections 22-23-24 208. DISCHARGE OF LIENS. Suction 22. All public sales of real estate under the provisions of this act shall have the effect of judicial sales as to the discharge of liens upon the real estate so sold ; but private sales shall not discharge the liens of debt of record. Note. — This section is substituted for the provision of Section 5 of the Price Act that "by every such pubHc sale the premises sold shall be dis- charged from all liens," and the provision of Section 2 of the supplement- ary Act of March 23, 1867, P. L. 43, 4 Purd. 4032, that private sales "shall discharge the premises sold from the lien of the debts of the decedent, except debts of record, and debts secured by mortgage ; Provided^ That the security, required" by the Price Act "shall have been duly entered. 209. NO OBLIGATION TO SEE TO APPLICATION OF PURCHASE-MONEY. SECTION 23. Whenever a public or private sale of real estate shall be authorized, directed or confirmed by any court under the provisions of this act, the person or persons purchasing the real estate so sold and taking title in pursuance of the decree of the court, shall take such title free and discharged of any obligation to see to the application of the purchase-money. Note. — This is copied from Section 16 (/>) of the Fiduciaries Act. (See 455 infra.) 210. APPEALS. Section 24. In all cases and proceedings under this act, appeals may be taken to the proper appellate court from the orphans' court, as now provided by law in other cases, and from the court of common pleas, as provided in equity cases : Provided, That if any decree be carried into execution before the appeal be per- fected, and written notice thereof given to any vendee, mort- gagee, or lessee, any reversal thereof shall not affect the right or title of such vendee, mortagee, or lessee, but the purchase or mortgage moneys or rents shall stand in lieu of the premises sold or mortgaged, or leased, so far as thus encumbered: Provided, further, That before any decree be carried into effect to afford such indemnity, twenty-one days be allowed from its entry to take and perfect such appeal. Note.— This is Section 8 of the Price Act, 4 Purd. 4028, modified by substituting "proper appellate" for "supreme," and by omitting, after "equity cases" the words ''in the respective counties of the state." In the REVISED PRICE ACT— Suctions 24-25-26 123 scond proviso, the period has been made twsnty-one instead of twenty days, to correspond with the period fixed by the general appeals act. 211. SHORT TITLE. Section 25. This act shall be known and may be cited as the Revised Price Act of 1917. 212. REPEALER. Section 26. 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 of such act. Section 10 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. Section 2 of an act entitled "A supplement to the intestate law of this commonwealth," approved April 8, 1826, P. L. 255, abso- lutely. Section i of an act entitled "An Act supplementary to the various acts relating to orphans' and registers' courts, and executors and administrators, and the act relating to the measure- ment of grain, salt, and coal," approved June 16, 1836, P. L. 682, absolutely. Section 2 of an act entitled "A supplement to an act, entitled 'An Act relating to orphans' court,' approved the twenty-ninth of March, one thousand eight hundred and thirty-two," approved March 16, 1847, P- L. 474, absolutely. Sections i to 5, inclusive, of an act entitled "An Act supple- mentary to an act passed the twenty-ninth day of March, one thousand eight hundred and thirty-two, entitled 'An Act relating to orphans' courts,' and relating to contracts of decedents and escheats in certain cases, and relative to the district court of the city and county of Philadelphia, and to registers of wills," ap- proved April 3, 1851, P. L. 305, absolutely. Sections i to 8, inclusive, and Section 10 of an act entitled "An Act relating to the sale and conveyance of real estate," ap- proved April 18, 1853, P. h. 503, absolutely. Sections i and 3 of an act entitled "A supplement to an act, entitled 'An Act relating to the sale and conveyance of real estate,' " approved April 13, 1854, P. L. 368, absolutely. Section 5 of an act entitled "An Act to amend certain defects 124 REVISED PRICE ACT— Section 26 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, absolutely. An act entitled "A further supplement to the act, entitled 'An Act relating to the sale and conveyance of real estate,' passed the eighteenth day of April, one thousand eight hundred and fifty- three," approved April i, 1863, P. L. 187, absolutely. An act entitled "Supplement to an act, entitled 'An Act relating to the sale and conveyance of real estate,' approved the eighteenth day of April, Anno Domini one thousand eight hundred and fifty- three," approved April 18, 1864, P. L. 462, absolutely. An act entitled "A supplement to an act relating to the sale and conveyance of real estate, approved the eighteenth day of April, one thousand eight hundred and fifty-three," approved April 17, 1866, P. L. 108, absolutely. Sections i and 2 of an act entitled "An Act relating to judicial sales, and the preservation of the lien of mortgages," approved March 23, 1867, P. L. 43, absolutely. An act entitled "A further supplement to an act, entitled 'An Act relating to the sale and conveyance of leal estate,' approved the eighteenth day of April, Anno Domini, one thousand eight hundred and fifty-three, authorizing the courts to decree the leas- ing and combination of lands for mining purposes," approved June 8, 1874, P. ly. 277, absolutely. Section i of an act entitled "An Act to amend the second section of an act, entitled 'An Act relative to the sale and conveyance of real estate,' approved the eighteenth day of April, one thousand eight hundred and fifty-three, extending the provisions thereof to real estate upon which are limited vested remainders which are liable to open and let in after born children, and validating sales of real estate heretofore made by proceedings under said act of lands and tenements subject to such remainders," approved June 14, 1897, P. L. 144, absolutely. Sections i and 2 of an act entitled "An Act authorizing the several orphans' courts of this commonwealth to decree the sale, mortgaging, leasing or conveyance upon ground-rent, of lands devised or held with remainder to a class of persons, some or all of whom are unborn, and to validate certain sales and conveyances heretofore made by decree of court in such cases," approved June 15, 1897, P. L. 159, absolutely. An act entitled "An Act amending an act approved April seven- REVISED PRICE ACT— Suction 26 125 teenth, one thousand eight hundred and sixty-six, entitled 'A sup- plement to an act relating to the sale and conveyance of real estate,' approved the eighteenth day of April, one thousand eight hundred and fifty-three ; providing that deeds may be acknowledged before any justice of the peace, notary public, or other officer having authority to take acknowledgment of deeds or other instruments of writing," approved April 22, 1903, P. L. 241, absolutely. An act entitled "An Act relating to acknowledgments of deeds ; authorizing county treasurers, county commissioners, sheriffs, executors, administrators, trustees, or other persons acting in an official or representative capacity, where now required or author- ized to make acknowledgment of deeds or other instruments before justices of the peace, to make acknowledgments of deeds and other instruments before a notary public, or any officer au- thorized by law to take acknowledgments of deeds, and validat- ing all such acknowledgments heretofore made before other officers than justices of the peace," approved April 23, 1909, P. L. 156, in so far as it relates to acknowledgments of deeds or other instruments made in pursuance of decrees entered under the provisions of this act. An act entitled "An Act authorizing the several orphans' courts to empower guardians of the estates of minors to join with the cotenants of said minors in effecting amicable partition of lands held in common," approved May 23, 1913, P. L. 345, absolutely. An act entitled "A supplement to an act approved the eighteenth day of April, one thousand eight hundred fifty-three, entitled 'An Act relating to the sale and conveyance of real estate,' " approved May 28, 191 5, P. L. 635, absolutely. All other acts of assembly, or parts thereof, that are in any way in conflict with this act, or any part thereof, are hereby re- pealed. THE WILLS ACT of June 7, 1917, (P. L. 403.) PRELIMINARY NOTE BY COMMISSION. The present law on this subject has proved so satisfactory that the Commissioners have recommended few changes of a funda- mental nature. The law, however, has been codified, revised, and arranged in logical form. Some important changes should, how- ever, be indicated. In Section 2, it is provided that the presence of dispositive words after the signature of a testator shall not, even if they are written before the execution of the instrument, invalidate that which precedes the signature. In Section 6, the period before death when a will for religious or charitable uses may be executed has been made thirty days instead of a calendar month. In Section 8, the appointment of testamentary guardians is reg- ulated and the rights of father and mother rendered more uniform. In Section 15, the law on the subject of lapsed legacies and devises has been revised and the phraseology of existing statutes amended, especially in cases where the lapse occurs in the resid- uary clause or bequest and an intestacy results under the present law. According to the revised act, the lapsed share will pass to the other residuary legatees or devisees. In Section 16, the rights of adopted children are extended to cases of a general devise or legacy to children when the contrary intention does not appear by the will. In Section 17, provision is made for the payment of pecuniary legacies from real estate not specifically devised, when no contrary intention appears in the will. In Section 18, it is provided that a devise of mortgaged real estate shall in all cases be subject to the mortgage and that the mortgage shall not be paid from the personal estate in the absence of a direction to that effect. In Section 19, it is provided that in the case of so-called spend- thrift trusts, the income of the cestui que trust shall, notwith- 126 WILLS ACT— Contents 127 standing, be liable for the support and maintenance of his wife and minor children. In Section 21, it is provided that the marriage of a testatrix shall operate to revoke her will only pro tanto and not absolutely, thus rendering the law uniform with that regulating the subject in the case of men. In Section 22, corresponding to Section 23 of the Intestate Act, it is provided that no murderer shall be entitled to take under the will of the person whom he has killed. In Section 23, the rights of a surviving husband and wife, elect- ing to take against the will of the deceased spouse, are made uni- form, as has already been indicated in the Preliminary Note to the Intestate Act ; and the procedure relative to such election has been revised and defined with greater particularity. TABLE OF CONTENTS. The Wills Act, Section i. Who may make wills and what may be disposed of, Section 2. Form and execution of wills Section 3. Execution of wills by mark or cross Section 4. Nuncupative wills, (a) When and where to be executed, (b) Requisites, where bequest is over one hun- dred dollars, (c) Proof after expiration of six months, . . . Section 5. Wills of mariners and soldiers, Section 6. Bequests and devises for religious and charitable uses Section 7. Emblements, crops, rents, and periodical payments accuring to tenants for life and others Section 8. Testamentary guardians, (a) Appointed by father, (b) Appointment by mother, (c) Forfeiture of right by neglect of parental duty 407 Section 9. Wills to be construed as if executed im- mediately before death of testator,.... Section 10. After-acquired real estate to pass by general devise Section 11. General devise or bequest to operate as execution of general power of appoint- ment I9I7 Section amphlet Number Laws Herein 403 213 40s 214 215 216 217 218 219 406 220 221 223 224 224 225 226 227 228 229 128 WILLS ACT— CoNTBNTs 1917 Pamphlet Laws Section 12. Devises of real estate to pass whole estate of testator, Section 13. Devise of real estate in fee tail construed as estate in fee simple Section 14. Construction of "die without issue/' and similar phrases 408 Section is. Lapsed and void devises and legacies,.. (a) Devise or legacy in favor of lineal descendants not to lapse by death, (b) Devise or legacy in favor of brothers and sisters and their children not to lapse by death, in certain cases, (c) Lapsed and void devises and legacies to fall into residue ; provisions where such legacies and devises are contained in the residuary clause, Section 16. Devise or legacy to children to include adopted children, 409 ■ (a) Children adopted by testator, (b) Children adopted by devisee or legatee.. Section 17. Pecuniary legacies to be charged on residuary real estate, Section 18. Devises of real estate subject to mort- gage, Section 19. Spendthrift trusts; income to be liable for maintenance of wife and minor children, Section 20. Revocation of wills, (a) Wills of lands, (b) Wills of personalty, 410 Section 21. Revocation of wills pro tanto, by sub- sequent marriage, or birth of children, Section 22. Forfeiture of rights by devisee or legatee who murders the testator, Section 23. Election to take under or against wills, . . (a) Right of surviving spouse to elect to take against will of deceased spouse, (b) How election to be manifested and within what time, (c) No payments to be required before elec- tion, 411 (d) Surviving spouse may be cited to make election, Section Number Herein 230 231 232 233 233 234 23s 236 236 237 238 239 240 241 241 242 243 244 245 24s 246 247 248 WILLS ACT— TiixE— Section i 129 1917 Section Pamphlet Number Laws Herein (e) Election of surviving spouse, or decree of court where there is a failure to elect, to be recorded and filed, 249 Section 24. Act not to apply to wills of personal estate, executed by testator domiciled without the Commonwealth 412 250 Section 25. Short title section, 251 Section 26. When act shall go into operation, .... 252 Section 2^. Repealer, 412-S 253 213. TITLE. An Act. Relating to the form, execution, revocation and interpretation of wills, to nuncupative wills, to the appointment of testamentary guardians, to spendthrift trusts, to forfeiture of devise or legacy in case of murder of testator, to elections to take under or against wills, and to the recording and registering of such elections and of decrees relative thereto and to the fees therefor. 214. WHO MAY MAKE WILLS AND WHAT MAY BE DISPOSED OF. Section i. Be it enacted by the Senate and House of Repre- sentatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That every person of sound mind and of the age of twenty- one years or upwards, whether married or single, may dispose by will of his or her real estate, whether such estate is held in fee simple or for the life or lives of any other person or persons, and whether in severalty, joint tenancy or common, and also of his or her personal estate. Note. — This is Section i of the Act of April 8, 1833, P. L. 249, 4 Purd. 5109-18, amended by inserting the words, "of the age of twenty-one years or upwards, whether married or single." This obviates the necessity for a separate section as to minors, thus supplying Section 3 of the Act of 1833, 4 Purd. 5120. It also supplies Section 7 of the Act of April 11, 1848, P. L. 537, 4 Purd. S119 (which supplied Section 2 of the Act of 1833) providing that a married woman might dispose of her separate property by will ex- ecuted in the presence of two or more witnesses, neither of whom should be her husband. It likewise supplies Section S of the Act of June 8, 1893, P. L. 345, 4 Purd. 51 19, empowering married women to make wills as if unmarried, which act repealed the married persons' property act of June 3, 1887, P. L. 332. 9 I30 WILLS ACT— Sections 1-2 The provision in Section i of the Act of 1833 as to estates held for the lives of others was copied from the Statutes of 29 Charles H, Chapter 3, Section 12; and the provision as to joint tenancy followed the Act of March 31, 1812, 5 Sm. L. 395, 2 Purd. 2031, which provided that if parti- tion be not made between joint tenants, the parts of those who die first shall not accrue to the survivors, but shall descend or pass by devise, and be considered to every intent and purpose in the same manner as if such deceased joint tenants had been tenants in common. Apropos of a suggestion that the testamentary age be reduced to eight- een years, it may be noted that in the draft submitted by the Commis- sioners in 1832, it was provided that wills of personal estate alone might be made by persons of the age of eighteen years or upwards, but this was not approved by the legislature. 215. FORM AND EXECUTION OF WILLS. Section 2. Every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction ; and in all cases, shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect : Provided, That the presence of dispositive or testamentary words or directions, or the appointment of an executor or the like, after the signature to a will, whether written before or after the ex- ecution thereof, shall not invalidate that which precedes the signature. Note. — This is Section 6 of the Act of 1833, 4 Purd. 5120-26, with the addition of the proviso. The Commissioners in 1832 remarked that it was then the law of Penn- sylvania that real or personal property might be transferred by a will without signature, seal or attesting witness, and although the will was not in the handwriting of the testator. Their draft of Section 6 was passed without alteration except that, after the words "shall be proved" there were omitted the words "before the register having jurisdiction thereof." In the Laws Agreed upon in England, 5 Sm. L. 416, Section 15, it was provided that : "All wills and writings, attested by two witnesses, shall be of the same force as to lands, as other conveyances, being legally proved within forty days, either within or without the said province." The Act of 1705, I Sm. L. 33, ''concerning the probates of written and nuncupative wills, and for confirming the devises of lands," was largely derived from the Statute of 29 Charles II, Chapter 3, but omitted Sections 5 and 6 of that statute, which prescribed the forms of execution and revo- cation of wills of lands. Section I of the Act of 1705 provided "That all wills in writing, wherein or whereby any lands, tenements or heredita- ments, within this province, have been, are, or shall be devised (being WILLS ACT— Section 2 131 proved by two or more credible witnesses, upon their solemn affirmation, or by other legal proof in this province, or being proved in the Chancery in England^ etc.,) shall be good and available in law, for the granting, conveying and assuring of the lands or hereditaments thereby given or devised, as well as of the goods and chattels thereby bequeathed." The first part of the section as now reported is copied from the present law. Its language is vague, if it be literally interpreted, but its meaning has been so often elucidated by the decisions of the courts that the Com- missioners have felt it to be unwise to remould it, and, for the sake of achieving technical clarity of expression, raise new questions which would excite litigation. The Commissioners are not aware that any change is de- manded as to the execution and proof of wills, and have purposely avoided the requirement of subscribing witnesses, which in many other jurisdictions is the rule. It is desirable that the laws should be as simple and free from technicality as possible, and if subscribing witnesses were necessary many wills would be unjustly avoided. Our present law has proved very satisfactory in this regard, and an innovation does not appear to be ad- visable. The Commissioners, however, recommend in the proviso to this sec- tion a change induced by the decision in Wineland's Appeal, 118 Pa. 37. The legislative requirement that a will shall be signed at the end thereof, the natural and proper place for the signature, was a judicious improvement upon the law as it previously existed; but the Commissioners are of opinion that the presence of testamentary provisions after the signature, even if written before the signature is affixed, should not invalidate what the testator by his signature has authenticated. See forms 3, 5-8, 36-7. See Seiter's Est., 265 Pa. 202; 108 Atl. 614. Proof of a lost will is made out only by proof, by two witnesses of execution and of contents, each of which must separately depose to all the facts necessary to complete the chain of evidence so that no link in it may depend on the credibility of one. Where a reputable scrivener prepared a will which was signed by decedent in the presence of two witnesses, who had no knowledge of its contents and the will was subsequently lost the testimony of the scrivener alone as to its contents was held by the court insufficient. "The two witness rule is sound ; by permitting one witness to establish the contents of a lost will, the door would be opened to intriguing and designing persons after which misfortune must necessarily follow ; and, while, by such latter rule a disappointed heir may be discouraged from destroying a will, dishonesty, fraud and criminal wrong would be greatly encouraged. If a will, properly executed, is lost, and the one- witness rule should prevail, it would permit a scrivener to write the will after his own fashion, diverting the estate into channels never dreamed of by the testator, disinheriting heirs, and denying, to those close to him throughout life, the benefits of his bounty. Where two witnesses to the contents are required, the opportunity for engrafting bogus wills on estates, or for dishonesty in scriveners who write wills, or other fraud in connection therewith, if not made impossible, is greatly lessened." Hodgson's Est., 270 Pa. 210; 112 Atl. 778. 132 WILLS ACT— Sections 2-3 Where testator accidently destroyed his will and though intending to do so, never re-wrote it, its contents cannot be shown until its execution has been proved by the testimony of two witnesses. Where such witnesses have no knowledge of the contents of the will and the only other evidence is that of the man who drew the will who testified that he had left it with decedent, who told him that he had signed it in the presence of two wit- nesses, the evidence of the execution of the will is insufficient. Weber's Est., 12 Berks 12; affirmed in 268 Pa. 7; no Atl. 785. While the presumption is, in the absence of proof, that words appearing in a will following the signature were written after the signature, yet under the act of 1917 they are without effect and a widow given a fee in the will did not have her estate cut down to a life; estate by the addition of the words "here life time" after the signature. Wilson v. Cook, 49 Pa. C. C. 16. A scrawl or mark made by the testatrix, identified by two witnesses both of whom saw her "sign" the will and one of whom was a subscribing witness, was held a sufficient execution by Lamorelle, P. J. in Kris' Est., 30 Dist. 166. On the other hand. Miller, J., of the Orphans' Court of Allegheny County, set aside the probate of a will where it appeared that the testa- trix signed her name by making a series of unintelligible marks which were witnessed by two subscribing witnesses, on the ground that the act is mandatory and requires that the testatrix's name must appear written by someone in her presence and by her direction and authority. Perry's Est., 67 P. L. J. 216. 216. EXECUTION OF WILLS BY MARK OR CROSS. Section 3. If the testator be unable to sign his name, for any reason other than the extremity of his last sickness, a will to which his name is subscribed in his presence, by his direction and authority, and to which he makes his mark or cross, unless unable so to do, in which case the mark or cross shall not be required, shall be as valid as though he had signed his name thereto : Provided, That such will shall be proved by the oaths or affirma- tions of two or more competent witnesses. Note. — This is substituted for Section i of the Act of January 27, 1848, P. L. 16, 4 Purd. S126-7, omitting the provisions as to wills thereto- fore made. Section I of the Act of 1848 reads as follows. "Every last will and testament heretofore made or hereafter to be made, excepting sucn as may have been finally adjudicated, prior to the passage of this act, to which the testator's name is subscribed, by his direction and authority, or to which the testator hath made his mark or cross, shall be deemed and taken to be valid in all respects, Provided, The other requisites under existing laws are complied with." This phraseology is clearly open to criticism, as it might be understood to mean that a will, signed by the direction of the testator, although not in WILLS ACT— Sections 3-4 (a), (&) 133 his presence, and although he was not in the extremity of his last illness, would be good, which, of course, would be inconsistent with the preceding requirements. The Commissioners are of opinion that this section of the Act of 1848 should be corrected in its phraseology, as an exception to their general method of revision, for its reformation, unlike that of Section 6 of the Act of 1833, last preceeding, is not complicated by any long series of judicial decisions; and it seems desirable to clarify its language before any questions such as have been suggested may arise. The new section is intended to cover cases where a person is unable to sign his name, whether from lack of education or from physical weakness. The provision that the mark may be dispensed with if the testator be unable to make a mark is intended to cover such a case as that of a man who lost both arms or is paralysed. See form 4. The probate of a will was set aside where it appeared that the testatrix signed her name by making a series of unintelligible marks which were witnessed by two subscribing witnesses, on the ground that this section of the act is mandatory and requires that the testatrix's name must appear written by someone in her presence and by her direction and authority. Perry's Estate, 67 P. L. J. 216. But see Kris' Est., 30 Dist. 166. 217. NUNCUPATIVE WILLS. Section 4. Personal estate may be bequeathed by a nuncu- pative will, under the following restrictions : 218. WHEN AND WHERE TO BE EXECUTED. (a) Such will shall in all cases be made during the last sickness of the testator, and in the house of his habitation or dwelling, or where he has resided for the space of ten days or more, next be- fore the making of such will ; except where such person shall be surprised by sickness, being from his own house. Note. — This is clause i of section 7 of the Act of 1833, 4 Purd. S127, omitting at the end the words "and shall die before returnixig thereto." These words seem unnecessary and might invalidate a nuncupative will made in a hospital should the testator be removed to his own home before death. Section 7 of the Act of 1833 was derived from Section 3 of the Act of 170S, I Sm. L. 33, the changes made by the Commissioners of 1830 being the substitution in clause (b) of $100 for £30, and the placing of this lim- itation in the second clause instead of the first. The Act of 1705 was derived from the Statute of 29 Charles II. 219. REQUISITES WHERE BEQUEST IS OVER ONE HUNDRED DOLLARS. (b) Where the sum or value bequeathed shall exceed one hun- dred dollars, it shall be proved that the testator, at the time of 134 WILLS ACT— Sections 4 (&), (c)-S pronouncing the bequest, did bid the persons present, or some of them, to bear witness that such was his will, or to that effect ; and in all cases, the foregoing requisites shall be proved by two or more witnesses, who were present at the making of such will. Note. — This is clause 11 of Section 7 of the Act of 1833, 4 Purd. 5128. See the note to clause (o). 220. PROOF AFTER EXPIRATION OF SIX MONTHS. (c) No testimony shall be received to prove any nuncupative will after six months elapsed from the speaking of the alleged testamentary words, unless the said testimony, or the substance thereof, were committed to writing within six days after the making of said will. Note. — This is Section 11 of the Act of March 15, 1832, P. L. 137, 4 Purd. 5128, which was derived from Section 4 of the Act of 1705, i Sm. L. 33, with merely verbal changes. In line 3, "alleged" has now been substi- tuted for "pretended," as being more in conformity with the modern use of the words. 221. WILLS OF MARINERS AND SOLDIERS. SECTION 5. Notwithstanding this act, any mariner being at sea, or any soldier being in actual military service, may dispose of his movables, wages and personal estate, as he might have done before the making of this act. Note. — This is Section 8 of the Act of 1833, 4 Purd. 5128, which was copied from Section 7 of the Act of 1705, i Sm. L. 33. There were omitted however, in the Act of 1833, the words, "'or person" after "mariner," and the words, "or they" after "as he." The Commissioners of 1830 remarked, in reference to the change thus made : "By extending the provisions to all other persons at sea it is conceived that there would be some danger of thosQ evils in respect to the disposition of property by verbal wills against which it was the object of a previous section to guard." Under the present law and the decisions of the courts, mariners at sea and soldiers in actual military service have the same privileges in the making of wills that they would have enjoyed if the English Statute of Frauds and our Acts of 1705 and 1833 had never been passed, as all of these statutes have expressly excluded such wills ; the wills, though oral, must however be proved by two witnesses : Smith's Will, 6 Phila. 104 ; Drummond vs. Parish, 3 Curteis Ecc. 322. While the Commissioners are aware of the dangers attending oral wills, they have concluded to recommend the exception here made in favor of mariners and soldiers, as a class of persons who have always been re- garded with peculiar indulgence by the law of England as well as by the Roman law, in which this exception originated. WILLS ACT— Sections s-6 135 Nuncupative wills in general have been so safeguarded by the require- ments of the preceding sections, that the Commissioners do not believe that any serious consequences will ensue from their retention. Such wills seldom occur in practice, and yet their total abolition might produce in- convenience in cases proper for them. Wills of mariners at sea and soldiers in actual military service are not subject to the provisions of the Wills Act of 1917, being excepted from the operation of that and previous statutes, but are governed by the common law under which a will of personal property by word of mouth was valid, made by a boy over fourteen years of age, although a minor. Henninger's Est., 30 Dist. 413. (Note; This case contains a most ex- haustive and learned dissertation on the subject of nuncupative wills and the wills of mariners at sea and soldiers in active service.) 222. BEQUESTS AND DEVISES .FOR RELIGIOUS AND CHARITABLE USES. Section 6. No estate, real or personal, shall be bequeathed or devised to any body politic, or to any person in trust, for religious or charitable uses, except the same be done by will at- tested by two credible, and, at the time, disinterested witnesses, at least thirty days before the decease of the testator; and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee, heirs or next of kin, according to law. A disinterested witness, within the meaning of this section, is a witness not interested in such religious or charitable use, this section not being intended to apply to a witness interested in some other devise or bequest in the same instrument. Note. — This is Section i of the Act of June 7, 191 1, P. L. 702, 7 Purd. 7766, altered so as to apply to wills only, and by transferring the definition of "a disinterested witness" to the end of the section. Another statute should be passed relating to gifts otherwise than by will, so as to make the law uniform. The Act of 1911 amended Section 11 of the Act of April 26, 185s, P. L. 332, I Purd. 595, 4 Purd. 5129, by adding the definition of a disinterested witness, which has been construed by the supreme court in Palethorp's Estate, 249 Pa. 411. Much might perhaps be said in favor of the abolition of the prohibition of bequests and devises for charitable and religious uses made within any definite period of time before the death of the testator. The Com- missioners have concluded to make no recommendations on this subject to the Legislature. They have, however, substituted for the period of one calendar month, that of thirty days, for the reason that the calendar months of the year do not contain the same number of days, and the provision should be uniform. 136 WILLS ACT— Sections 6-7-8 (a) Decedent died October 13, 1918, leaving a will dated Oct. 11, 1918, with a devise of a remainder interest in real estate to a charity in default of issue to the life tenant and Gest, J., held : "As the testatrix died within thirty days after the execution of her will, the charitable bequests and devises are void" under this section of the act. McNulty's Est., 29 Dist. 709. A bequest in trust to use the income for the care of a cemetery lot is a charitable bequest under the Act of May 26, 1891 (P. L. 119), and is void where testator died less than thirty days after making his will under Section 6 of the Wills Act of 1917. Eby's Est., 30 Dist. 338, 37 Lane. 329. See Channon's Est., 28 Dist. 479 affirmed in 266 Pa. 417, 109 Atl. 756. 223. EMBLEMENTS, CROPS, RENTS AND PERIODI- CIAL PAYMENTS ACCRUING TO TENANTS FOR LIFE AND OTHERS. Section 7. The emblements or crops growing on lands held by a widow in dower, or by any tenant for life, may be disposed of by will as other personal estate. Rents and other periodical pay- ments accruing to any tenant for life, or to any other person en- titled under the laws of this commonwealth regulating the descent and partition of real estate, may, so far as the same may have ac- crued on the day of death of such tenant for hf e, or other person, be disposed of by will, in like manner. Note. — This is Section 5 of the Act of 1833, 4 Purd. 5120, with one change. The draft prepared by the Commissioners in 1832 read, "The emblements or crops." The Act of 1833 reads, "The emblements of crops." The Act of 1833 reads, "The emblements of crops." This is ev- idently a clerical or typographical error. The original reading is restored. The Commissioners in 1832 reported that they had incorporated in Sec- tion s a part of the Statute of 20 Henry lU, Chapter 2, relating to widows, and added a power to all life tenants to dispose of by will of crops, rents, etc. 224. TESTAMENTARY GUARDIANS APPOINTED BY FATHER. Section 8. (a) Every person competent to make a will, being the father or adopting father of any minor child unmarried, may appoint a testamentary guardian for such child during his or her minority, or for any shorter period : Provided, That such testa- mentary guardian shall not be entitled to the custody of the per- son of such child unless the mother or adopting mother, if surviv- ing, shall relinquish such custody, or unless the best interests of the child shall require that such surviving mother or adopting mother should not retain the custody of the person of such child. WILLS ACT— Section 8 (o), (fe) 137 Note. — This is founded on Section 4 of the Act of April 8, 1833, 4 Purd. 5151, as amended by the Act of April 15, 191S, P. L. 124, 7 Purd. 7767. It is altered so as to distinguish between guardianship of the person and of the estate, giving the father the right to appoint a guardian but making the question of the custody of the person depend upon the consent of the mother and the best interests of the child. Provisions to include adopted children have been added. The provision as to appointment of a guardian by the mother is omitted from this clause and covered by the next. The specific inclusion of adopted children in this section of the act was held to be persuasive of an intent not to include adopted children within the purview of Section 21 of the Wills Act so as to revoke a will as to those adopted since its making by the adopting parent. Boyd's Est., 50 Pa. C. C. 163, ID West., 47, affirmed in 270 Pa. 504. Under this section a grandparent has no authority to appoint a testa- mentary guardian for his grandchild. The act gives no persons other than the parents, natural or adopting, such power to appoint a testamen- tary guardian. But where such grandparent appoints by his will a certain person as "'guardian'' of a grandchild who is made a beneficiary, "hereby empowering him to have full power and authority to receive the said bequests,'' such appointee will be considered as a trustee for the purposes expressed in the will and as such will be entitled to the control of the bequests to the exclusion of a lawfully appointed guardian, who, however, has standing to compel the trustee to enter security or do such other things as in the opinion of the court may be necessary for the protection of the minor's estate. McLain's Est., i Wash. 220. 225. APPOINTMENT BY MOTHER. (b) Every person competent to make a will, being the mother or adopting mother of any minor child unmarried, may appoint a testamentary guardian for such child during his or her minority, or for any shorter period, whenever the father or adopting father of such child shall be deceased and has not appointed such a guardian. Such mother or adopting mother, who shall leave to such child an estate, either real or personal, may appoint a testa- mentary guardian for such estate of the child, whether the father or adopting father of such child shall be living or dead, and whether he shall or shall not have appointed a testamentary guard- ian for such child. Whenever the father or adopting father of such child has for one year or upwards, immediately preceding the death of the mother or adopting mother, wilfully neglected or refused to provide for such child, such mother or adopting mother, who shall leave to such child an estate, either real or personal, may appoint a testamentary guardian for such child* *The portion in italics was added by the amendatory Act of June 12, 1919. (P- L. 443-) 138 WILLS act-Section 8 (fe), (c) Note:— This is founded on Sections i and 2 of the Act of June 10, 1881, P. L. 96, 4 Purd. S152; the Act of April 15, 1915, P. L. 124, 5 Purd. 5887; and the Act of April 21, 1915, P. L. 14S, S Purd. 5887, and involves the repeal of these acts. The language of the Act of April 15, 1915, giving to "the father or the mother" the right to devise the custody of a minor child in all cases, leaves it doubtful whether, the father having died appointing a guardian, the mother may also appoint a general guardian by her will, and ■tdce versa. Provisions to include adopted children have been added. The provision that a mother, appointed guardian by her husband's will, may appoint a successor, has been omitted as unnecessary. The specific inclusion of adopted children in this section of the act was held to be persuasive of an intent not to include adopted children within the purview of Section 21 of the Wills Act so as to revoke a will as to those adopted since its making by the adopting parent. Boyd's Est., 50 Pa. C. C. 163, 10 West. 47, affirmed in 270 Pa. 504. Under this section a grandparent has no authority to appoint a testa- mentary guardian for his grandchild. This act gives no persons other than the parents, natural or adopting, such power to appoint a testamentary guardian. But where such grandparent appoints by his. will a certain person as "guardian" of a grandchild who is made a beneficiary, "hereby empowering him to have full power and authority to receive the said bequests," such appointee will be considered as a trustee for the purposes expressed in the will and as such will be entitled to the control of the bequest to the exclusion of a lawfully appointed guardian, who, however, has standing to compel the trustee to enter security or do such other things as in the opinion of the court may be necessary for the protection of the minor's estate. McLain's Est., i Wash. 220. 226. FORFEITURE OF RIGHT BY NEGLECT OF PARENTAL DUTY. (c) No father who shall have, for one year or upwards pre- vious to his death, wilfully neglected or refused to provide for his child or children, and no mother who shall have, for a like period, deserted her child or children or failed to perform her parental duties, shall have the right to appoint any testamentary guardian for such child or children. Note. — This is Section 6 of the Act of May 4, 1855, P. L. 431, 4 Purd. 5152, omitting the words "as aforesaid" before the words "for one year or upwards," and adding a corresponding provision as to the mother. Section i of the act of May 25, 1887, P. L. 264, 4 Purd. 5152, giving the mother a right to appoint a guardian in case of desertion by the husband, is superseded by clause (6) supra, and should be repealed. WILLS ACT— Sections 9-10 139 227. WILLS TO BE CONSTRUED AS IF EXECUTED IMMEDIATELY BEFORE THE DEATH OF THE TESTATOR. Section 9. Every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Note:— This is Section i of the Act of June 4, 1879, P. L. 88, 4 Purd. 5144, which was declaratory of the common law rule as to personal prop- erty, and was copied from the statute of 7 William IV and i Vict., Chapter 26, Section 24; 8 Rev. Stat. 34. The Act of 1879 "'was enacted to complete what had only been par- tially effected by the Act of 1833." Opinion of Clark, J., in Fidelity Ins. T. & S. D. Co.'s Appeal, 108 Pa. 492, 499. See also, Williams v. Brice, 201 Pa. 595, 597- Under the Act of June 4, 1879, P. L. 88 and this section of the Wills Act, the general rule is that a will speaks from the death of the testator, and legacies are to be satisfied out of the property which he owns at that time. This rule does not apply where a contrary intention appears by the will, as, for example, where the testator is the owner of a particular thing at the time of the making of his will, and bequeaths it by language which shows that he intends the gift to apply alone to the particular thing. The legacy is then called "'specific'' and where, prior to his death, the testator has disposed of the subject matter, the legacy is adeemed and nothing passes under the gift. Thus, where testator, at the time of the execution of his will, was the owner of a yacht, which he bequeathed as follows : "I give and bequeath unto my nephew, my yacht, with all its furnishings,'' and subsequently he sold the yacht, and later puchased a one-third interest in another yacht, which he owned at the time of his death, it was held, that the language of the will clearly applied to the yacht which the testator owned at the time of the execution of the will, and, having disposed of it before his death, the legacy was adeemed. Annear's Est., 29 Dist. 44. 228. AFTER ACQUIRED REAL ESTATE TO PASS BY GENERAL DEVISE. Section id. The real estate acquired by a testator after mak- ing his will shall pass by a general devise, unless a contrary inten- tion be manifest on the face of the will. Note. — ^This is Section 10 of the Act of 1833, 4 Purd. 5139, which is similar to Section 23 of the Statute of 7 William IV and i Vict., Chapter 26. It has been retained, although it might be considered unnecessary in view of the broader provisions of the Act of 1879, embodied in the last preceding section. 140 WILLS ACT— Section ii 229. GENERAL DEVISE OR BEQUEST TO OPERATE AS EXECUTION OF GENERAL POWER OF APPOINTMENT. SECTION II. A general devise of the real estate of the testator, or of the real estate of the testator in any place or in the occupa- tion of any person mentioned in his will, or otherwise described in a general manner, shall be construed to include any real estate, or any real estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. In like manner a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate or any personal estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will. Note. — This is Section 3 of the Act of 1879, 4 Purd. 5145-6. See the note to section 9 of the present draft. Section 4 of the Act of 1879, 4 Purd. 5146, provides : "This act shall operate upon and go into effect as to the wills of all persons who shall die after the date of this act." This is covered by the general section of the present act fixing the time when the act shall go into effect. (See 252 infra.) Under a will where one had a general power of appointment and it was held that he could appoint to certain persons or classes of persons in such shares as another person might nominate, the court dismissed ex- ceptions to an adjudication by Gest, J., wherein he said : "The power conferred by the will of Sarah Ann Duffy upon Rosahe Gertrude Wilson was a general power to appoint this property by her will to such person or persons and for such estate or estates as she should direct, limit and appoint, and, of course had Rosalie Gertrude Wilson designated certain hospitals by name as the beneficiaries, there could be no question that the power was validily exercised. A general power such as this approaches so near to absolute ownership that she might have appointed the estate to her executor to be disposed of as part of her own, and if she had failed to exercise the power specifically it would neverthe- less, have been executed by force of the Wills Act of June 7, 1917, Sec- tion II, P. L. 403, which re-enacted the Act of June 4, 1879, Section 3, (P. L. 88) II, Duffy's Est., 49 Pa. C. C. 30, 29 Dist. 379. The auditing judge (Gest, J.) said in his adjudication: "Amelia R. Sparks died on November 2, 1914, leaving a will by the tenth paragraph of which she bequeathed to her trustees premises No. 21 WILLS ACT— Sections 11-12 141 Wood Street, Camden, N. J., forty shares of North Pennsylvania Railroad stock, five shares of Philadelphia Traction Company, and a $1,000 bond of the Delaware and Bound Brook Railroad, in trust to pay the net income therefrom to her son, Edward K. Sparks, for the term of his natural life, and from and after his decease, to pay over, assign, and transfer the principal in such way and manner as he may by last will and testament direct, limit and appoint, or in default of appointment, to those who would be entitled to the same if he had died seized and possessed of the same intestate. "And by the seventeenth paragraph of her will she provided as follows : 'I order and direct that all devises and bequests and all payments of income herein given shall, to the fullest extent permitted by the law, be transferred or paid free and clear of the debts, contracts, engagements, alienations and anticipations of any beneficiary, and free and clear of all levies, attachments, executions and sequestrations.' "The account is filed of the stocks and bonds so bequeathed and awarded to the accountants by the adjudication of Anderson, J., on November 23, 1916, and schedule thereon, and is filed by reason of the death of Edward K. Sparks on December 10, 1920, so that the trust then terminated. "Edward K. Sparks left him surviving a widow, Julia M. Sparks and a will dated November , 1916, of which she is executrix and by which he provided : 'I direct that all my just debts and funeral expenses be paid as soon as conveniently may be after my decease. " 'I give, devise and bequeath all of my estate, real and personal, unto my wife, Julia M. Sparks, absolutely, if she shall survive me, otherwise, I give and devise the same to my son, Charles Aplin Sparks.' "The question presented is whether, under the will of Edward K. Sparks, executing the power of appointment given to him, the award of the principal of the trust estate should be made to Julia M. Sparks in- dividually as the object of the power, or whether it should be made to Julia M. Sparks as executrix of the will of Edward K. Sparks." And Lamorelle, P. J., in dismissing exceptions, held inter alia : "The three exceptions raise but one question : the propriety of awarding the appointed estate to the executrix of the will of the donee." "In the present case the donee's exercise of the power is by virtue of Section 11 of the Wills Act of June 7, 1917, P. L. 41S (which repealed the Act of June 4, 1879, P. L. 88), in a will where, following a general direction to pay his debts, he left his estate to his wife. "We cannot distinguish the cases, and, therefore, the exceptions are dismissed, without prejudice, however, to the rights of all parties in interest which are to be determined in manner and form as hereinbefore set forth." Spark's Est., 30 Dist. 815. 230. DEVISES OF REAL ESTATE TO PASS WHOLE ESTATE OF TESTATOR. Section 12. All devises of real estate shall pass the whole estate of the testator in the premises devised, although there be 142 WILLS ACT— Sections 12-13-14 no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation, or otherwise, in the will, that the testator intended to devise a less estate. Note.— This is Section 9 of the Act of 1833, 4 Purd. 5137-8. Before that Act, a devise did not carry a fee unless there were words of inherit- ance or other language showing an intention that a fee should pass. The Commissioners in 1832 reported that this section coincided with the im- provement made in this respect in many other states. See Rosenfield v. Wahal, 48 Pa. C. C. 362. 231. DEVISE OF REAL ESTATE IN FEE TAIL TO BE CONSTRUED AS ESTATE IN FEE SIMPLE. Secton 13. Whenever by any devise an estate in fee tail would be created according to the common law of this state, such devise shall be taken and construed to pass an estate in fee simple, and as such shall be inheritable and freely alienable. Note.— This is Section 1 of the Act of April 27, 1855, P. L. 368, 2 Purd. 1485, altered so as to apply to wills only. The Act of 1855 should not be repealed so far as it relates to deeds. 232. CONSTRUCTION OF "DIE WITHOUT ISSUE" AND SIMILAR PHRASES. Section. 14. In any devise or bequest of real or personal es- tate, the words, "die without issue," or "die without leaving issue," or "have no issue," or any other words which may import either a want or failure of issue of any person in his lifetime, or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will in which such devise or bequest is made. Note.— This is Section i of the Act of July 9, 1897, P. L. 213, 4 Purd. 5146-8, altered so as to apply to devises and bequests only. The Act of 1897, so far as it relates to gifts and grants, is not to be repealed. Section 2 of that act, limiting its application to instruments made after its passage, is covered by Section 26 of the new act. (See 252 infra.) See English's Est., 270 Pa. i, 112 Atl. 913. "A careful reading of this act will at once disclose that it gave a statu- tory meaning to such words as 'die without issue' or 'die without leaving issue' or any words which may import either a want or failure of issue WILLS ACT— SgcTioNs 14-15 (a) 143 of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, and that they shall be construed to mean a want or failure of issue in the lifetime or at the death of the taker, and not an indefinite failure of his issue, unless a contrary intention appear from the will. The statute has reference only to these two possible constructions of such words, viz : a failure of issue at the death of the taker or an indefinite failure, of his (the taker's) issue and has no reference to words which may imply a definite failure of issue either in the lifetime of the testator or at the death of the taker, the law of construction in the latter case has not been changed by this statute, and remains as it was before this act of assembly was passed." Fox, J., in Segelbaum's Est., 24 Dauphin 274. 233. LAPSED AND VOID DEVISES AND LEGACIES DEVISE OR LEGACY IN FAVOR OF LINEAL DESCENDANTS NOT TO LAPSE BY DEATH. Section 15. (a) No devise or legacy in favor of a child or children, or other lineal descendant or descendants of any testator, whether such children or descendants be designated by name or as a class, shall lapse or become void by reason of the decease of such legatee or devisee in the lifetime of the testator, if such de- visee or legatee shall leave issue surviving the testator ; but such devise or legacy shall be good and available in favor of such sur- viving issue, with like effect as if such devisee or legatee had sur- vived the testator, unless the testator shall in the will direct other- wise. Note. — This is Section 12 of the Act of April 8, 1833, P. L. 250, 4 Purd. 5142, which was founded on the Act of March 19, 1810, P. L. 96, S Sm. L. 112, modified so as to conform to the phraseology of the clause next following. Section 12 of the Act of 1833 has been judicially construed to include legacies to children or grandchildren as a class, the principle of Gross's Estate, 10 Pa. 360, not having been applied to this section; see Bradley's Estate, 166 Pa. 300. The phraseology, however, has been changed by way of precaution in order to prevent any question upon the subject. An adopted child of a son of testator was held entitled to distribution under the Wills Act of 1917, where the son died subsequent to the execu- tion of the will, but prior to testator's death. The will provided : "All the rest and residue of my estate, of whatsoever nature and wheresoever situate, at the time of my decease, I give, devise and bequeath to my be- loved children who are living at the date hereof, their heirs and assigns, share and share alike. The child or children of any of my children now living, but who die before me, to receive the share or portion, its or their parents would have received had he or she been living at the time of my death." "Issue," in Section 15 (o) and "child or children" in Section 144 WILLS ACT— SEcTioN 15 (o), (&) 16 (6) of the Wills Act of 1917 are necessarily synonymous in the re- stricted sense that their rights of inheritance are the same, and all that is required by the latter subsection is that "child or children shall be con- strued to include adopted children." This construction is necessary to carry into effect the clearly expressed legislative intent. Hill's Estate, 69 P. L. J. 177, 30 Dist. 477, s. c. 69 P. L. J. 348. Testator left a will directing that this estate should be "equally divided among my children, their heirs and assigns." A son died before the tes- tator leaving issue and a widow. Held, that the widow could not par- ticipate because not embraced within the words "heirs and assigns," which are words of limitation. Schaeflfer, P. J., said: "By no authority known to the court have 'heirs and assigns' as here used, been construed as words of substitution and thus to embrace a widow as an heir. They are here used merely as words of limitation — they limit an absolute estate to children. As such, consequently, they preclude the widow's coming in on the legacy by substitution; and since the Wills Act of 1917, which saves the legacy from lapsing, restricts distribution of it to this son's issue, the court sees no way by which this widow can participate. For these reasons she will not be included in the distribution." Wagenhorst's Estate, 12 Berks 89. See Gamier v. Gamier, 16 North 205; Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. 234. DEVISE OR LEGACY IN FAVOR OF BROTHERS AND SISTERS AND THEIR CHILDREN NOT TO LAPSE BY DEATH, IN CERTAIN CASES. (b) Where any testator shall not leave any lineal descendants who would receive the benefit of any lapsed or void devise or legacy, no devise or legacy made in favor of a brother or sister, or of brothers or sisters of such testator, or in favor of the chil- dren of a brother or sister of such testator, whether such brothers or sisters or children of brothers or sisters be designated by name or as a class, shall be deemed or held to lapse, or become void by reason of the decease of such devisee or legatee in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator ; but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator, unless the testator shall in the will direct otherwise. Note. — The Act of May 6, 1844, Section 2, P. L. 565, saved from lapse devises and legacies "made in favor of a brother or sister or the children of a deceased brother or sister of any testator, such testator not leaving any lineal descendants.'' It having been held in Gross's Estate, 10 Pa. 360, and Guenther's Appeal, 4 W. N. C. 41, that this act did not apply to a be- quest to the legatees as a class, the Act of July 12, 1897, P. L. 256, 4 Purd. S 143-4, amended the Act of 1844 by expressly providing for class legacies. WILLS ACT— Section is (6) 145 The Act of 1897 also amended the law by striking out the word "de- ceased," so that the provisions of the act should apply to the children of brothers or sisters, whether or not their parent was deceased, a require- ment which seems irrelevant. The section as now reported follows the language of the Act of 1897, but further amends it by limiting it to cases where the testator "shall not leave any lineal descendants who would receive the benefit of any lapsed or void devise or legacy." This was probably the legislative intent, for the provision saving from lapse legacies to certain legatees should not depend upon the mere fact that the testator did not leave lineal descend- ants, unless those descendants would profit by the lapse or failure of the legacies. It was probably assumed by the legislature heretofore that if the testator left lineal descendants they would be included among his re- siduary devisees or legatees, and thus receive the benefit of the lapsed devises and legacies, but this is not necessarily the case. The Commissioners have not deemed it expedient to recommend any further extension of the law in this regard. An examination of the stat- utes of other states discloses a great variety of legislative policy — some statutes going so far as to save every legacy from lapse where the legatee predeceases the testator. But statutes such as the present are really canons of construction, intended to carry out an assumed testamentary intent when it is not expressed, and there is great danger of carrying too far rules which import into a written will a meaning which is more or less artificial. The term "issue'' as used in this section of the Wills Act embraces adopted children. Schaeffer, P. J., held, "When the will was made, on November 12, 1917, giving a fourth share of the estate to the children of the deceased brother, Howard, Stanley Kirby, one of them, was living and had legally adopted as his son the said Raymond V. Kirby, as appears by the decree of the Court of Common Pleas of Lancaster County, dated January 30, 1915 — almost two years before. It is to be assumed, there- fore, that when she made her will, testatrix was aware of this adoption, and in any event, it is clear that Stanley Kirby, as one of the children of the deceased brother Howard, was at the date of the will a member of the class of children of the deceased brother Howard. * ♦ * The question is, whether the term 'issue' in the act is meant to embrace adopted children. The court sees no reason for excluding them. To so exclude them, it seems, would be against the trend of all our late legis- lation. Under the Intestate Act of 1917, for example, adopted children are given equal rights of inheritance with other children, from and through whom they inherit. Here the legislative intent was clearly to put adopted children on the same plane as natural children; and this intent is fur- ther evidenced in the Act of June 20, 1919, P. L. 521, relating to inheritance taxes, where adopted children for purposes of direct taxation are put in the same class as natural children ; or in other words, are not regarded as collaterals. So, in Section 16, Clauses (o) and (6) of the Wills Act of 1917; and so running through all our late acts of assembly. Why, there- fore, this adopted child of Stanley Kirby should be denied the right of ID 146 WILLS ACT— Section 15 (&), (c) his father's legacy here in view of all the legislation on the subject, is not clear to the court ; and until some authoritative utterance making the reason clear, has been presented, Raymond V. Kirby will be allowed to participate in this distribution as the child of the deceased nephew, Stan- ley." Moore's Estate, 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. Decedent died in March, 1918, and by her will disposed of the residue of her estate as follows : "That the same shall be divided, share and share alike, amongst all my nephews and nieces, having children or bodily heirs (that is to say, that such nephews and nieces having no children shall not inherit under this will)." Held, that a nephew dying before the date of the will never became a member of the class and his children cannot par- ticipate; that the children of a niece dying after the date of the will participate; and that the granddaughter of a deceased nephew within the class takes the share of her parent, since the Wills Act of 1917 does not limit to children the right to take the share of a deceased legatee, but uses the broader term "issue." Fetherolf's Est., No. 2, 29 Dist. 479, 12 Berks 62. Where by the second clause of her will, the testatrix provided : "I give, devise and bequeath all my estate of whatsoever and where- soever situate unto my sister Margaret Boeshore, wife of Miller Howard Boeshore, and my brother John Frederick W. Stock, in equal shares," the court held, "Under the second section of the will, if it stood alone, John Frederick W. Stock would take one-half of the estate, and although Margaret Boeshore predeceased the testatrix, she left issue, John Jacob Boeshore, who would take his mother's share, the other one- half, under the Wills Act of June 7, 1917, Sec. 15 (6), P. L. 403." Stock's Est., 49 Pa. C. C. 203, 29 Dist. 376. See Gamier v. Gamier, 16 North 205. 235. LAPSED AND VOID DEVISES AND LEGACIES TO FALL INTO RESIDUE; PROVISIONS WHERE SUCH LEGACIES AND DEVISES ARE CONTAINED IN RESIDUARY CLAUSE. (f) Unless a contrary intention shall appear by the will, such real or personal estate or interests therein as shall be comprised or intended to be comprised in any devise or bequest in such will contained, which shall fail or be void by reason of the death of the devisee or legatee in the lifetime of the testator, or by reason of such devise or bequest being contrary to law or otherwise in- capable of taking effect, or which shall be revoked by the testator, shall be included in the residuary devise or bequest, if any, con- tained in such will. In any case where such devise or bequest, which shall fail or be void or shall be revoked as aforesaid, shall be contained in the residuary clause of such will, it shall pass to and be divided among the other residuary devisees or legatees, if any there be, in proportion to their respective interests in such residue. WILLS ACT— Section 15 (c) 147 Note.— This is Section 2 of the Act of June 4, 1879, P. L. 88, 4 Purd. 514s, amended so as to make it plain that it applies to personal as well as real estate, by including revoked devises and bequests, and by the addition of the last sentence. This, like the other sections of the Act of 1879, was founded on the English Statute of 7 Wilham IV and i Vict., Chapter 26. According to the present law, residuary gifts which are void or fail by lapse pass to the next kin or heirs and not to the other residuary legatees or devisees. The Supreme Court in Gray's Estate, 147 Pa. 67, 75, criti- cized this rule as wrong in principle and subversive of the great canon of construction, viz, the carrying out of the intent of the testator.f In Gor- gas's Estate, 166 Pa. 269, the rule was followed in a case where it was apparent from the language of the will that the testatrix intended not to give the next of kin any interest in her estate. And in Wain's Estate, 156 Pa. 194, the rule was applied in the case of a revocation of a residuary gift, Mr. Justice Mitchell repeating his criticism made in Gray's Estate. The Commissioners therefore recommend the abolition of the common law rule in accordance with the views expressed by the supreme court. A legacy was held to have failed and was distributed as a part of the residuary estate where the legatee after a legal tender of the money refused to accept it. Under the Wills Act of 1917, clause 15 (c) this legacy was "incapable of taking effect." "It does not appear to need any argument to prove that a legacy cannot be forced upon any person who refuses to take it, and if it is refused when tendered, that it has failed, or is void, by reason of being 'incapable of taking effect.' Authority for this proposition is found in Wonsetler v. Wonsetler, 23 Super. Ct. 321, where it is said: 'While the bequest vested the title in him, his refusal to accept would leave it part of the testator's residuary estate,' and see Cox V. Rodgers, ^^ Pa. 160; Tar v. Robinson, 158 Pa. 60, and Price's Est. 194 Pa. 135. A case in point is Peckham v. Newton, 4 Atl. 758 (Rhode Island), where there was a bequest of a five thousand dollar bond which was declined and renounced, and the Court citing Jarman on Wills (S Am. Ed. Rand & T.) 365, 762, said: 'A residuary gift of personal estate carried not only everything not in terms disposed of, but everything that in the event turns out to be not well disposed of. A presumption arises for the residuary legatee, against every one except the particular legatee ; for the testator is supposed to give his personalty away from the former only for the sake of the latter.' " Trimble, J. In Kane's Estate, 69 P. L. J. 820. tSee Gamier v. Garnier, 16 North 205, p. 215. Where three daughters are residuary legatees, the fact that one of them resides in Germany and because of the Trading with the Enemy Act of October 6, 1917, her share is payable to the Alien Property Custodian, does not cause a lapse in her share that, under this section of the act, such share is divisable between the remaining daughters the sisters of the alien. The award will be to the Alien Property Custodian to hold for her until the end of the war. Gregg's Estate, 266 Pa. 189, 109 Atl. 177. 148 WILLS ACT— Section 15 (c) Testatrix specifically devised certain premises to her husband for life, with remainder to a charitable institution. The residue of her estate she devised and bequeathed to her husband for life, with remainder to the Archbishop of Philadelphia for the same charitable institution. She died within thirty days after the execution of her will, so that the charitable bequests and devises were void under the Wills Act of June 7, 1917, Sec. 6, P. L. 403. The husband then claimed that the remainder in the premises specifically devised to him for life, passed to him in fee, under the Wills Act of 1917, Sec. 15 (c), held, "This provision of the new act was clearly intended to abolish the common law rule criticized by the Supreme Court in Gray's Estate, 147 Pa. 67, that where the residuary estate is devised to or among a number of devisees, and the devise as to one or more of them lapses, or is avoided by some rule of law, or is revoked, an intestacy re- sulted as to that share under the former rule. The obvious intention of the act was to introduce the principle that in devises of this nature the void or revoked share is to be divided among the other residuary devisees in proportion to their respective interests. This contemplates the case where the residuary devisees are given aliquot shares in the residue, and not to a case like the present, where the devisees are respectively life tenant and the remainderman and thus given estates of a different quality." Gest, J., in McNulty's Estate, 29 Dist. 709. Testator, after disposing of his personalty, gave his real estate to his wife for her life. In a residuary clause of his will he devised to two other persons all of his estate that remained at the death of his wife, but devised to her, in case of the death before her of one of the residuary devisees, the share of such deceased devisee. Terry, P. J., in holding that under Section 15 of the Wills Act of June 7, 1917, P. L. 403, the contingent devise to the wife did not lapse by reason of her death, as well as that of said devisee, in the Hfetime of the testator, but passed to the other residuary devisee, and consequently the testator's collateral heirs had no standing to ask for partition of the real estate devised, said : "An- other provision in said subdivision of said section of the Wills Act, which is new, is that a lapsed or void devise or bequest in the residuary clause of a will shall pass to the other residuary devisees or legatees. The tes- tator here, in such clause of his will, provided that if Allen Miller, one of his two residuary devisees, died before his wife, she should have Mil- ler's 'share' of the estate. Following that event and upon her death, Fred Osterhout, the 'other' residuary devisee within the intendment of the aforesaid provision of the Wills Act of 1917, took his mother's interest, the lapse of the devise to her being thus prevented. The petitioner claims only as stated, and his asserted right to share in said estate rests solely on the assumption of a lapsed devise — to testator's wife. As it did not lapse, the petitioner has no interest in the real estate in controversy, and, therefore, no standing to demand its partition." Jackson's Estate, 28 Dist. 943, 68 P. L. J. 613. WILLS ACT^Section i6 (o), (6) 149 236. DEVISE OR LEGACY TO CHILDREN TO IN- CLUDE ADOPTED CHILDREN,— CHILDREN ADOPTED BY TESTATOR. Section 16. (a) Whenever in any will a bequest or devise shall be made to the child or children of the testator, without naming such child or children, such bequest or devise shall be construed to include any adopted child or children of the testator, unless a contrary intention shall appear by the will. Note. — This is a new clause, introduced in conformity to the provisions of the new Intestate Act relating to inheritance by adopted children. This and the following section were cited to show that since the legis- lature had the rights of adopted children constantly in mind, their omission from Section 21 of the Wills Act was intentional and that it was not in- tended to include after-adopted children within its provisions. Boyd's Es- tate, so Pa. C. C. 163, ID West. 47; affirmed in 270 Pa. 504. See also Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. 237. CHILDREN ADOPTED BY DEVISEE OR LEGA- TEE. (b) Whenever in any will a bequest or devise shall be made to the child or children of any person other than the testator, without naming such child or children, such bequest or devise shall be con- strued to include any adopted child or children of such other per- son who were adopted before the date of the will, unless a contrary intention shall appear by the will. Note. — This clause is also new. It is limited to the case of children adopted before the date of the will since it is a statutory canon of con- struction referable to the time when the testator makes his will. An ex- tension to include children adopted after the date of the will would tend to defeat the intention of the testator. See Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. Boyd's Est., SO Pa. C. C. 163, 10 West 47 aflf'd in 270 Pa. S04. An adopted child of a son of testator was held entitled to distribution under the Wills Act of 1917, where the son died subsequent to the execu- tion of the will, but prior to testator's death. The will provided : "All the rest and residue of my estate, of whatsoever nature and wheresoever situate, at the time of my decease, I give, devise and bequeath to my be- loved children who are hving at the date hereof, their heirs and assigns, share and share alike. The child or children of any of my children now living, but who die before me, to receive the share or portion its or their parents would have received had he or she been living at the time of my death." ISO WILLS ACT— Sections i6 (6)-i7 The Wills Act of 1917 changed the rights of adopted children. Under this act they now have the same rights of inheritance as children born in lawful wedlock. Trimble, J., held: "'Issue,' in Section 15 (o) and 'child' or 'children' in Section 16 (6) are necessarily synonymous in the restricted sense that their rights of inheritance are the same, and all that is required by the latter subsection is that 'child' or 'children' 'shall be construed to include adopted children.' There can be no doubt that the legislature has the right to say who shall inherit, and that it properly exercises this right in describing the class referred to as 'child or children' by including adopted children. If this were not so, all our statutes regulating adoption which have given the right of inheritance would be void in this respect. A con- trary view would arise from a strict interpretation, by adhering to the letter and not to the spirit of the law. * * * If an adopted child can be included as one of the next of kin or heirs at law who would take in in- testacy, it cannot be said that the legislature does not have the authority to include adopted children as part of the class of children who take under a will." Hill's Estate, 6g P. L. J. i77, 30 Dist. 477, s. c. 69 P. L. J. 348. 238. PECUNIARY LEGACIES TO BE CHARGED ON RESIDUARY REAL ESTATE. SECTION 17. All pecuniary legacies contained in any will shall be charged upon and payable out of any real estate not specifically devised, where the personal estate is insufficient for their payment, or where the personal estate though originally sufficient has been wasted or misapplied by the executor, unless a contrary intention shall appear by the will. Note. — This section is new. The ordinary rule is that the personal es- tate is not merely the primary fund for the payment of legacies, but the only fund appHcable thereto, unless they are made a charge upon the real estate either by express terms or by clear implication. The Com- missioners are of opinion that the real estate not specifically devised should be assets for the payment of pecuniary legacies unless a contrary intention appears from the will. This change is in accordance with several others suggested by the Commissioners, which tend to the establishment of uni- formity in the descent and distribution of realty and personalty, both being considered as forms of property. Many testators are unaware of the distinctions made by the law in this respect, which depend for the most part upon historical reasons that at the present day have lost their original significance; and such testators, when they bequeath legacies of sums of money, will naturally expect them to be paid even if their personal estates should prove insufficient. The personal estate will continue as before to be the primary fund for the payment of pecuniary legacies, the section of the act now recommended charging their payment on real estate not specifically devised unless a con- trary intention appears, thus merely changing the presumption of the testator's intention. WILLS ACT— Section 17 151 In Maryland, a similar change was ef5fected by Chapter 438 of the Laws of 1894. The provision applicable to the case of a devastavit of the personal estate is believed to express the law as it now stands where legacies are charged on land by the will : Cook v. Petty, 108 Pa. 138, and is included by way of precaution. See Greaves' Estate, 29 Dist. 577. Testator bequeathed to his favored niece, whom he had brought from Germany to be his housekeeper and with whom he had lived for nearly thirty years, "all my personal property of every description, * * * in- cluding bonds, mortgages, certificates of stock, household furniture, jew- elry, ornaments and articles of decoration" absolutely. He gave the gen- eral residue to others and authorized his executrix to sell his realty to the best interest of the estate; held, this was a specific legacy, and the debts, expenses and other legacies were payable out of the proceeds of realty. Gruner's Est., 49 Pa. C. C. 642, 29 Dist. 1095. Where testator devised all the residue of his estate to his wife for life "'subject to the above devise and bequests to my brother and my sis- ters," and further directed that his wife, if she elected to take under his will, "shall execute such acquittance or acquittances as may be necessary for vesting in my said brother and sisters the devise and bequests herein made to them ; it was held that the legacies were a charge upon the real estate on failure of the personalty as under Section 17 of the Wills Act of 1917, no contrary intention could be gathered from the express terms of the will. Where even it does not abundantly appear from the whole will that tes- tator did not intend to exempt his land from the payment of pecuniary legacies and the law stood to-day as it was prior to enactment of Section 17 of the Wills Act of 1917, the fact of the blending of all his estate for the purpose of distribution would require the construction to sustain the contention that the legacies are chargeable upon the land on failure of the personalty. The court said : "Not only can no contrary intention be gathered by ex- press words or by implication exempting the payment of the two pecuniary legacies of one thousand dollars each, set forth in the petition as liens upon the land, but the terms of the will expressly provide that the be- quests of the residuary estate, first to the widow for her life and after- wards among his children in fee simple, are subject to the devise and be- quests in favor of his brother and his two sisters : to make this most clear, he directs that his widow, if she takes under the will, shall execute such acquittance or acquittances as may be necessary for vesting in these three legatees the bequests to them. This necessarily carries with it a strong declaration that his estate, irrespective of its kind, shall pay these lega- cies, and that as an evidence thereof the widow must obtain from them what he calls an acquittance — meaning a release or receipt." Mulgrew's Estate, 69 P. L. J. 169. 152 WILLS ACT— Sections 18-19 239. DEVISES OF REAL ESTATE SUBJECT TO MORTGAGE. Section 18. Unless the testator shall otherwise direct by his will, the devisee of real estate, which is subject to mortgage, shall take subject thereto and shall not be entitled to exoneration out of the other estate of the testator, real or personal, and this whether the mortgage was created by the testator or by a previous owner or owners, and notwithstanding any general direction by the testator that his debts be paid. Note. — This is a new section, intended to remove the existing distinction between mortgages made by the testator and those created by previous owners : Hirst's Appeal, 92 Pa. 491 ; Stuard's Estate, 17 Phila. 498 ; Burton's Estate, 15 Pa. C. C. 367. The distinction is a very technical one, not based on any presumed intention of the testator, but simply on the ground that the personal estate is still the primary fund for the payment of debts, as at one time it was the only asset. This historical justification of the rule has long been outgrown; and the change here recommended is in accord with the English Statutes of 17 and 18 Vict., Chapter 113; 30 and 31 Vict., Chapter 69; and 40 and 41 Vict., Chapter 34, known as the Locke King Acts. Those statutes contain further provisions, which the Commissioners have not included, considering them either unnecessary or inapplicable in this state. 240. SPENDTHRIFT TRUSTEES; INCOME TO BE LIABLE FOR MAINTENANCE OF WIFE AND MINOR CHILDREN. Section 19. All income whatsoever, devised or bequeathed by any will so as to be free from liabiHty for the debts, contracts or engagements of the beneficiary, or so as not to be subject to exe- cution, attachment sur judgment, sequestration or other process, shall notwithstanding such testamentary provisions be subject to and liable for the support and maintenance of the wife and minor children of the beneficiary and for the value of necessaries fur- nished to them or any of them, where said beneficiary has refused or neglected to provide suitably for them, and all of the income of said beneficiary shall be subject to all legal process issued by any court of this commonwealth having jurisdiction in the prem- ises in order to enforce such liability of said beneficiary. Note. — This is a new section. A similar provision as to orders for sup- port appears in the Act of April 15, 1913, P. L. 72, s Purd. 5919, amend- ing Section 2 of the Act of March 5, 1907, P. L. 6. The Commissioners have been impressed with the evil arising from the abuse of the doctrine of spendthrift trusts in this commonwealth. WILLS ACT— Sections 19-20 (o), (&) 153 The decisions of the courts hold it legal for a testator in disposing of his own property to bequeath it in trust so that it shall not be liable for the debts of the beneficiary; but it is believed that this protection should not be accorded to prevent the application of the income to the support and maintenance of the family of the beneficiary, and enable him to escape his marital and parental duties. Since the present act is to apply only to the estates of persons dying after its approval, this section does not fall within the opinion in Com. v. Thomas, 6s Super. 275, holding the Act of 1913 invaUd as to the estates of testators dying before the date of that act. 241. REVOCATION OF WILLS,— OF LANDS. Section 20. (a) No will in writing concerning any real estate shall be repealed nor shall any devise or directions therein be altered otherwise than by some other will or codicil in writing, or other writing declaring the same, executed and proved in the man- ner hereinbefore provided, or by burning, cancelling, obliterating or destroying the same by the testator himself, or by someone in his presence, and by his express direction. . Note. — This is Section 13 of the Act of April 8, 1833, P. L. 249, 4 Purd. 5130-5, which was founded on Section 6 of the Act of 1705, i Sm. L. 33, that section, however, relating to personal estate only. "Under the 13th section of the Act of 1833, reenacted by the Act of June 7, 1917, P. L. 409, that which was once a perfect will must remain such, unless repealed, altered or destroyed in one of the ways designated by the act; and a mere direction to destroy, however express, can never amount to a revocation, unless it should be followed by burning, cancel- ling, obliterating or destroying; otherwise the great object of the act of assembly, which was to prevent parol revocation, would be entirely lost: Clingan v. Mitcheltree, 31 Pa. 25; Heise v. Heise, 31 Pa. 246; Dixon's App., 55 Pa. 424; Jones's Est., 211 Pa. 364, 368. Therefore, before the question of revocation or cancellation can come up, it must appear that a perfect will was in existence upon which such question might be founded." Justice Kephart, in Seiter's Estate, 265 Pa. 202, 108 Atl. 614. 242. WILLS OF PERSONALTY. (b) No will in writing concerning any personal estate shall be repealed, nor shall any bequest or direction therein be altered, otherwise than as hereinbefore provided in the case of real estate, except by a nuncupative will, made under the circumstances set forth in Section 4^ of this act, and also committed to writing in the lifetime of the testator, and after the writing thereof, read to or by him, and allowed by him, and proved to be so done by two or more witnesses. ^See 217-220 supra. 154 WILLS ACT— Sections 20 (&)-2i Note.— This is Section 14 of the Act of 1833, 4 Purd. 5135, which made no change in the law as it existed under the Act of 170S, i Sm. L. 33- See 217-20 supra. Under the Act of June 7, 1917, P. L. 409, no question of the revocation or cancellation of a will can arise, unless it is shown that a perfect will was in existence upon which such question might be founded. Under the Act of June 7, 1917, P. L. 409, that which was once a perfect will must remain such, unless repealed, altered or destroyed in one of the ways designated by the act ; a mere direction to destroy, however express, can never amount to a revocation, unless it should be followed by burning, cancelling, obliterating or destroying the will. Seiter's Estate, 265 Pa. 202, 108 Atl. 614. 243. REVOCATION OF WILLS PRO TANTO BY SUB- SEQUENT MARRIAGE OR BIRTH OF CHIL- DREN. Section 21. When any person, male or female, shall make a last will and testament and afterward shall marry or shall have a child or children, either by birth or by adoption,'^ not provided for in such will, and shall die, leaving a surviving spouse and such child or children, or either a surviving spouse or such child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the surviving spouse, or child or children born or adopted^ after the making of the will, shall be deemed and construed to die intestate ; and such surviving spouse, child or children, shall be entitled to such purports, shares and dividends of the estate, real and per- sonal, of the deceased, as if such person had actually died without any will. Note. — This is Section 15 of the Act of 1833, 4 Purd. 5135-7, modified so as to make the law the same with regard to women as it is with regard to men. This involves the repeal of Section 16 of the Act of 1833, 4 Purd. 5137, relating to wills of single women. In the fourth and fifth lines, "such" has been inserted before "child" ; and in the ninth line, "born after the making of the will" has been substituted for "afterborn." Section 15 of the Act of 1833 was founded on Section 23 of the Act of April 19, 1794, 3 Sm. L. 143- The history of our legislation upon the subject is reviewed by Judge Penrose in Fidelity Trust Company's Appeal, 121 Pa. i ; and in Owens v. Haines, 199 Pa. 137, it was decided that the will of a woman was revoked pro tanto under the Act of 1833 by the subsequent birth of issue. To this extent, the section now reported is merely declaratory of the existing law ; but the Commissioners in making its language general without distinction of sex also recommend for repeal Section 16 of the Act of 1833, 4 Purd. 1 Added by amendatory Act of May 20, 1921 (P. L. 937). WILLS ACT— Section 21 155 5137, which provides that a will executed by a single woman shall be deemed revoked by her subsequent marriage. This is in accordance with the views of the Commissioners as expressed in this new Wills Act, as well as in the new Intestate Act, that the property rights of husband and wife should be the same. The old law required, in case of a testator, that both marriage and birth of issue should take place in order to effect a revocation of the will, while a woman's will was revoked by marriage alone, because of the merger of her legal identity in that of her husband. In Pennsylvania, the effect of the legislation was to make either marriage or the birth of children unprovided for operate as a revocation pro tanto of the will of the testator, while marriage annulled the will of a woman, though birth of children unprovided for revoked it only pro tanto. In some other states, and in England by the Statute of 7 William IV and I Vict., Chapter 26, Section 18, the law has been made uniform by giving this ef- fect of absolute revocation to the mere marriage of the testator as well as to the marriage of a testatrix, a change that does not appear advisable, for the purpose of the doctrine of implied revocation by such a change of circumstances is only to protect the rights of those persons who as spouse or children afterward come into being. This object is accompHshed by providing in every case for a revocation so far as such persons are concerned, and it is not necessary to annul the entire will. Where a widow makes her will, marries a second time, and dies leav- ing in existence the will made prior to her second marriage, her surviving husband is entitled under the Wills Act of June 7, 1917, P. L. 403, and the Intestate Act of June 7, 1917, P. L. 429, as amended by the Act of July II, 1917, P. L. 755, to the allowance of $5,000 provided by the Intestate Act. By her remarriage her will, as to her second husband, was annulled, and there was an actual intestacy as to him. Shestack's Est., 267 Pa. 115, no Atl. 166. Testator, by his will, disposed of his entire estate ; afterwards he mar- ried, and then executed a codicil giving, inter alia, to his wife the premises occupied by them at the time of his death, with all furniture and silver- ware contained therein, and $25,000 in cash, "in addition to any interest which my said wife would take under my will or under the intestate laws." After his death the widow filed her election to take under the codicil of the will the amount therein given to her, to wit, the mansion house, the sum of $25,000, and the amount which she would have re- ceived had he died intestate. At the audit she claimed these portions of the estate, in addition to her exemption of $500. The auditing judge al- lowed her claim, holding that the election filed amounted to an election to take under the will and codicil, and that in effect testator had incor- porated the provisions of the intestate law into his will and considered his will and codicil as making one will together. Gest, J., held: "Stress was laid by counsel in the argument on the other side upon the use of the word 'or' as defining an alternative of two bequests, either of which she might take, but not both, thus putting the widow to an election, not as surviving spouse, but as a legatee, to whom is given a choice of two 156 WILLS ACT— Section 21 bequests. But the answer is that, so far as the widow was concerned, the will was revoked by the statute. Wills Act of 1917, Section 21, reenacting the Act of April 8, 1833, Section 15, P. L. 31S, and expressly declaring that where the testator, after making his will, shall afterwards marry, such person, so far as shall regard the surviving spouse, shall be deemed and construed to die intestate. The word 'or' in this connection, may, therefore, fairly be construed to be used in its epexegetical or explanatory sense, as equivalent to the words 'that is to say.' " Greaves's Est., 29 Dist. S77. In a case where a common law marriage was not successfully proven, Solly, P. J., held : "Section 21 of the Fiduciaries Act (should be Wills Act) provides, 'When any person, male or female, shall make a last will and testament and afterward shall marry * * * and shall die, leaving a sur- viving spouse ♦ * * every such person, so far as shall regard the sur- viving spouse, * * * shall be deemed and construed to die intestate ; and such surviving spouse * * * shall be entitled to such purparts, shares and dividends of the estate, real and personal, of the deceased, as if such person had actually died without any will.' The person shall be deemed to die intestate, and the surviving husband shall be entitled to the same share in the estate of his wife as if she had actually died without any will. This language is plain and clearly expresses the intent of the Legislature. If a person makes a will and afterwards marries and dies, leaving a spouse surviving, his or her will is of no effect as to said spouse and he or she shall be construed to die intestate, and the surviving spouse shall have such share of the estate as if there was no will, as if the spouse had actually died without a will. If, therefore, there is no will in law, as to the surviving spouse, he or she is entitled to such share of the deceased spouse's estate as if there was an actual intestacy, and the Intestate Act of 1917 provides what that share shall be. * * * It is con- tended by the surviving husband that there is in this case a partial in- testacy. We think if he was not the husband of the testatrix when she made her will, but afterwards married her, there was an intestacy, and she is to be deemed and construed to die intestate, by the express language of Section 21 of the Wills Act of 1917, and he is entitled to the share of his wife's estate as provided by Section 2 of the Fiduciaries ("Intestate") Act. These are the plain and unmistakable constructions to be placed upon the two acts.'' Pfanenschmidt's Est., 35 Montg. 135. REVOCATION BY BIRTH OF ISSUE. Under this section of the Wills Act the birth of a child subsequent to the making of a will by its parent operates as a revocation of the will, so far as the will is an execution of a power of appointment, where the child takes under the donor's will in default of appointment, to the extent of such child's alternative rights. Shoch's Est., 29 Dist. 1163, aff'd in 271 Pa. 158. REVOCATION BY ADOPTION OF CHILDREN Where decedent, subsequent to date of his will adopted two children by formal proceedings, the court in considering the election of the widow WILLS ACT— Secwons 21-22 157 to take under the will, and after quoting the 16th section of the Intestate Act and the 16th section of the Wills Act to show that therein the legis- lature had in mind the rights of adopted children, held: "But since the legislature seems to have been so careful to make it clear in these sections that adopted children are to be included in these provi- sions for children generally, it seems quite clear that such was not the intention in so far as regards the provision in Section 21 relating to the rights of children born after the making of a will. Certainly, if the legislature had considered the language of the Adopting Act of 1915 or the Intestate Act of 1917, efficacious to make language used in the 21st section of the Wills Act include adopted children, it would not have thought it necessary to incorporate Sections 8 and 16 in the Wills Act. "I am therefore of opinion that the legislation of 1917 does not change the law in Pennsylvania that adopted children are not entitled to any rights in their adopting parent's estate where the adoption takes place after the adopting parent has executed a will and this whole estate will in accordance with this opinion be distributed under the terms of the will." Boyd's Est., 50 Pa. C. C. 163, 10 West. 47, aff'd in 270 Pa. 504. "It is well known that the latter act (Sec. 21 of Wills Act of 1917) was framed by a comxnission, singularly competent on the branch of the law with which it had to deal, and that its report to the legislature was adopted substantially without change. This commission, and the legisla- ture, knew the state of the law as to adopted children as it then was, and did not, so far as the rights of those adopted after the making of a will are concerned, place them in the same position as children of the adopting parent. Nothing is said in the act as to adopted children ; but, on the contrary, it refers "to a child or children born after the making of the will." As the right of inheritance is purely statutory, and he who claims a share in the inheritance must point to the law which transmits it to him, we are constrained to hold, by the very words of the act and in agreement with the reasoning in Goldstein v. Hammell (236 Pa. 305), that the appellants can assert no interest in the estate of their adopted father. If it is deemed wise to provide that adopted children shall have the rights here claimed for them, the legislature can extend the law to cover them; we cannot." Per JNIr. Justice Schaffer in affirming Boyd's Est., supra, in 270 Pa. 504. See now however. Act of May 20, 1921, P. L. 937. 244. FORFEITURE OF RIGHTS BY DEVISEE OR LEGATEE WHO MURDERS THE TESTATOR. Section 22. No person who shall be finally adjudged guilty, either as principal or accessory, of murder of the first or second degree, shall be entitled to take any part of the real or personal estate of the person killed, as devisee or legatee or otherwise under the will of such person. Note. — This is a new section, corresponding to Section 23 of the new Intestate Act. (See 347 infra.) See the note to that section. 158 WILLS ACT— Section 23 (a) 245. ELECTION TO TAKE UNDER OR AGAINST WILLS,— RIGHT OF SURVIVING SPOUSE TO TAKE AGAINST WILL OF DECEASED SPOUSE. Section 23. (a) When any person shall die testate leaving a sur- viving spouse, vfho shall elect to take against the will, such surviv- ing spouse shall be entitled to such interests in the real and personal estate of the deceased spouse as he or she would have been entitled to had the testator died intestate : Provided, That nothing herein contained shall affect the right or power of a married woman, by virtue of any authority or appointment contained in any deed or will, to bequeath or devise any property held in trust for her sole and separate use. Note. — This is a new section, framed to make the rights of husband and wife the same in electing to take against a will. The proviso is copied from Section i of the Act of May 4, 1855, P. L. 430, 3 Purd. 2460. The adoption of this section involves the repeal of Section 11 of the Act of 1833, I Purd. 1275-6; Section 11 of the Act of April 11, 1848, P. L. 537, I Purd. 1276-7; Section i of the Act of May 4, 1855, supra; and Section I of the Act of April 20, 1869, P. L. 77, i Purd. 1278. See forms 69-7. See Flower's Est., 30 Dist. 967. As against the more certain provisions of Section 2 (o) of the Intestate Act, it was held that the election by a widow to take against a will did not created under this section of the Wills Act, such an intestacy as would entitle her to the allowance of $5,000 provided in the said section of the Intestate Act. Collom's Estate, 47 Pa. C. C. 434, 28 Dist. 503. "The situation confronting us is the provision of the Wills Act that the spouse taking against the will shall take as he or she would have been en- titled to had the testator died intestate and the provision of Section 2 (a) of the Intestate Act as amended. The intention of the legislature to dis- tinguish between a surviving spouse of a testate and an intestate is per- fectly apparent from the text of the proviso in the Intestate Act. With no other law in the statutes of the commonwealth providing what should be taken by the surviving spouse of a deceased testate who might elect to take against the will, this would have barred him or her from partici- pating in the distribution of the estate. With the provision which is con- tained in the Wills Act, it might have been construed that the surviving spouse takes in the same manner and amount as the surviving spouse of an intestate. That, however, is not before the court for determination, but the intention of the legislature to place them on a different basis as to inheritance is emphasized by the amendment of July 11, 1917, P. L. 755. Clearly, it was the intention of the legislature that the surviving spouse of one dying testate, who elected to take against the will, should not enjoy the full benefits enjoyed by the surviving spouse of an intestate and that she should not enjoy the benefits of the five thousand dollars in value. Therefore, we hold that the surviving spouse of one dying testate, electing WILLS ACT— Section 23 (a) 159 to take against the will of the deceased spouse, is not entitled to the $5,000 in value, but takes in accordance with the provisions of Section 2 (a) of the Act of Assembly of June 7, 1917, P. L. 429, as amended by the Act of July 11, 1917, P. L. 7SS-" Shull, P. J., in Langerwisch's Estate, 47 Pa. C. C. 121, 28 Dist. 470, 8 Lehigh 147, affirmed in 267 Pa. 319, no Atl. 165. The fact that the testator directs a sale of his real estate, thus working a conversion, and impressed the proceeds with a trust in favor of his widow and others, does not preclude the widow who elects to take against the will from taking her interest in the real estate as realty, and de- manding that it be set apart for her in severalty. "When the widow perfected her election to take against the will, she, thereupon, under the laws of the commonwealth, became invested with a fixed interest in the decedent's real estate specifically as land and by her said action did not thereby become entitled to receive merely a portion of the proceeds to accrue from a sale thereof. Her rights upon such election are defined by the Wills Act of 1917, P. L. 403, which, being in force and effect at the time of her husband's death, governs and controls his estate and the administration and devolution thereof. Clause (o) of Section 23 of that statute provides, that in the event of a surviving spouse's electing to take against a decedent's will, "such surviving spouse shall be entitled to such interests in the real and personal estate of the deceased spouse as he or she would have been entitled to, had the testator died intestate.' Note particularly that the statute, in plain language, gives the surviving spouse an interest in specific real and personal estate as such and not merely in the proceeds thereof or any substitution therefor. Now, had the decedent died intestate, there would of course have been no will, and, as to the decedent's real estate, the widow, upon his death, would have inherited a specific interest in the land itself. Under such circumstances there could, by no possibility, have been any proceeds of or substitution for, the i-eal estate for her consideration. The said statute in the clearest language imaginable gives to, and vests in, her a share of the land itself. Such has always been the quality or kind of interest, to wit, an interest in land itself, which the laws of the Commonwealth of Pennsylvania have vested in widows, upon their electing to take against their husband's wills. Under Section 11 of the Wills Act of April 8, 1833, P. L. 250, a widow electing to take against her deceased husband's will became entitled to common law dower in his real estate, to wit, a freehold interest therein : Watterson's Appeal, 95 Pa. 312 (1880). The Act of April 20, 1869, P. L. 77, changed the share of a widow electing to take against her husband's will from common law dower to so-called statutory dower. Thus, it is seen that under both of these older statutes the interest which vested in a widow upon her electing to take against her husband's will, was a share of the land itself and not of the proceeds of the sale thereof or substi- tution therefor. The precise language of the said provision of the Act of April 20, 1869, P. L. 77 (changed only so as to include surviving hus- bands), has been reenacted and now forms a part of said Section 23 of the Wills Act of 1917, P. L. 403 ; hence the decisions under the former act apply with equal force and effect to the same provisions incorporated in the later statute." * * * "Upon deliberating on the unequivocal i6o WILLS ACT— Section 23 (o) language of the said pertinent statutory provision which applies to and controls the present estate, its administration and devolution, to wit. Section 23 of the Wills Act of 1917, P. L. 403, and, guided by the light afforded by the authorities recited, we reach the legal conclusion that upon the petitioner's electing to take against her deceased husband's will, she then became entitled to and was invested with, inter alia, a one-half part, share or interest in his real estate which forms the subject matter of this proceeding ; and that her ownership of such part, share or interest incidentally carries with it, the absolute right to have the same cut off in severalty from the remaining undivided interests and shares, and that accordingly she has due standing in law to maintain this proceeding to effect such partition ; possessing such absolute right notwithstanding the fact that the remaining interests or shares are made subject to a trust by the provisions of the will: Reid v. Glendenning, 193 Pa. 406 (1899)." * * * "As the decedent, William S. Dodd, whose estate is before us, died on September 19, 1920, to wit, long after December 31, 1917, the date upon which the Wills Act of 1917, P. L. 403, and the Intestate Act of 1917, P. L. 429, both became operative, this estate, its administration and devolu- tion, are therefore manifestly subject to the control of these two statutes. We are, therefore, clearly of the opinion that the petitioner, as widow of the decedent, upon her electing to take against her husband's will became, under Section 23 of the said Wills Act of 1917, P. L. 403, and under Section 2 (a) of the said Intestate Act of 1917, P. L. 429, entitled to and invested with, an undivided one-half part, share or interest in fee simple, in said decedent's real estate; and that the cited portions of the said Orphans' Court Partition Act of 1917, P. L. 337 (iS, 18 and 29), do not and are not designed to diminish such fee simple share, part or interest so prescribed for the widow in and by the said Wills Act and Intestate Act." Dodd's Estate, i Wash. 236. That section of the Wills Act of 1917 which provides that a failure to make an election within two years "shall be deemed an election to take under the will" is of no retroactive effect, and does not apply where tes- tator died prior to the passage of said act. This is a new provision intro- duced by the Act of 1917, and was no part of the law until that time. "Section 23 of the statute prescribes the form, requirements and pro- cedure in the matter of spouses' elections to take under or against dece- dents' wills. The employment of the word 'shall' in the opening sentence of this section indicates futurity, to wit, that the provisions of such sec- tion are to apply only to the estates of those who die after the said act shall become operative, or, at least, after its passage. Annie E. Young died on March 26, 1917, months before the time set for the Wills Act to become operative, to wit, December 31, 1917, and months, moreover, before the bill was enacted by the legislature or approved by the governor. Again Section 26 of the act in express and unconditional language makes the statute apply only to the wills of persons dying on or after December 31, 1917; providing that as to the wills of all persons dying before that day, the existing laws should remain in full force and effect. Under the laws of the Commonwealth which were in force at the date of the death of the testatrix, there was no time fixed or limited during which a surviving spouse was obliged to make his or her election, under penalty of being WILLS ACT— Section 23 (a), (b) 161 deemed and held to have elected to take under the will, because of neglect or failure to make such election during such limited period. See Beck's Estate, 265 Pa. 51 (1919). The said two-year period is applicable only to estates of testates dying on or after December 31, 1917." Per Hughes, P. J., in Young's Estate, i Wash. 250. Where a testator executed a will in which he made no provision for his wife, the latter can take against the will, notwithstanding the fact that she was not living with her husband at the time of his death, unless her wilful and malicious desertion has been clearly established. Schreck- engost's Est., 77 Super. 235. 246. HOW ELECTION TO BE MANIFESTED AND WITHIN WHAT TIME. (b) A surviving spouse electing to take under or against the will of the decedent shall, in all cases, manifest the election by a writing signed by him or her, duly acknowledged before an officer authorized by law to take the acknowledgment of deeds, and de- livered to the executor or administrator of the estate of such de- cedent, within twoyrars_ after the issuance of letters testamentary or of administration. Neglect or refusal or failure to deliver such writing within said period shall be deemed an election to take under the will. Note. — This is founded on Section 1 of the Act of April 21, 1911, P. L. 79, 7 Purd. 7766. The two-year limitation is new, the provision that failure to elect shall be deemed an election to take under the will being similar to the provision in Section 35 of the Act of 1832, which is embodied in clause (d) of this section. : > It is the duty of an executor asking the widow to make her election whether to take under her husband's will or not, to inform her of the condition of the estate, fully and correctly. Where a widow, the day after her husband's funeral, with the executor of her husband's will, visited the executor's attorney, who told her, in a language in which she was unaccustomed to converse, and under circum- stances and surroundings unfamiliar to her, that under her husband's will she will receive nothing of his estate but the amount of the widow's ex- emption and explained the estimated amount she would receive if she should take against the will, and she then expressed an intention not "to do anything but what her husband had done," executed and acknowledged a formal acceptance of the will, and received from the executor a payment of twenty dollars; and subsequently in proceedings to rescind her ac- ceptance, the court found that when she executed the election to take under the will, she did not have such a clear conception of the estate and her rights therein as would enable her to make a proper decision, although no intentional deception was practiced upon her, her election i62 WILLS ACT— Section 23 (6) to take under the will was cancelled, and she was permitted to elect to take against the will. In so holding the court, per Ross, J., said, inter alia : "The established right of a widow to take against the provisions of the will of her deceased husband, is recognized by the Act of June 7, 1917, P. L. 403, and the 23d section of that act prescribes the method by which she shall elect to take, either under or against the will. * * * In view of the fact that the Wills Act of 1917 provides a definite time (two years) for the widow to elect and six months before she can be cited to elect, and a further month for reflection after the citation issues, it is evident that the legislature intended to revive and extend the time limi- tation, which was formerly given the widow by the Act of 1832, and thus bring its interpretation within the law illustrated by the existing decisions of the Supreme Court (some of which we have cited) and cure the Act of April 21, 191 1, P. L. 79, by making it plain that a technical compliance with the provisions of the 'Wills Act' would not preclude widows from rescinding their election when made under circumstances such as the evi- dence reveals in the case at bar." Lehman's Estate, 33 York 113, 8 Le- high 315. That section of the Wills Act of 1917 which provides that a failure to make an election within two years "shall be deemed an election to take under the will" is of no retroactive effect, and does not apply where tes- tator died prior to the passage of said act. This is a new provision in- troduced by the Act of 1917 and was no part of the law until that time. "The remaindermen maintain that on account of the failure on the part of the petitioner for a period of two years following the decedent's death, to execute, acknowledge and deliver a formal election to take against the will, in conformity with the requirements of the Act of April 21, 1911, P. L. 79, he must be deemed in law, to have elected to take under the will. The provisions of the last paragraph of clause (6) of Section 23 of the Wills Act of 1917, P. L. 403 (which they contend in spirit and intent gov- erns the administration and devolution of the estate before us, although this testatrix died months before the said Wills Act of 1917, P. L. 403, became operative), providing that 'neglect or refusal to deliver such writ- ing within said period shall be deemed an election to take under the will.' The provisions of this paragraph were no part of the laws of the com- monwealth until introduced as a part of the said Wills Act of 1917, P. L. 403 ; hence the said provisions can have no applicability to the estate of this decedent, unless the same are by the statute made or intended to be, retroactive. Nowhere in this statute do we find anything to indicate that such provision thereof is intended to be retroactive; but on the other hand the act, in plain language, shows that it is not to be deemed retro- active. Section 23 of the statute prescribes the form, requirements and procedure in the matter of spouses' elections to take under or against de- cedents' wills. The employment of the word 'shall' in the opening sen- tence of this section indicates futurity, to wit, that the provisions of such section are to apply only to the estates of those who die after the said act shall become operative, or, at least, after its passage. Annie E. Young died on March 26, 1917, months before the time set for the Wills Act to become operative, to wit, December 31, 1917, and months, moreover, be- fore the bill was enacted by the legislature or approved by the governor. WILLS ACT— SucnoN 23 (&) 163 Again Section 26 of the act in express and unconditional language makes the statute apply only to the wills of persons dying on or after December 31, 1917, providing that as to the wills of all persons dying before that day, the existing laws should remain in full force and effect. Under the laws of the commonwealth which were in force at the date of the death of the testatrix, there was no time fixed or limited during which a sur- viving spouse was obliged to make his or her election, under penalty of being deemed and held to have elected to take under the will, because of neglect or failure to make such election during such limited period. See Beck's Estate, 265 Pa. 51 (1919). The said two-year period is applicable only to estates of testates dying on or after December 31, 1917." Per Hughes, P. J., in Young's Est., i Wash. 250. A surviving spouse must file an election to take against the will of the deceased spouse within two years of the issuance of letters testamentary or of administration, as required by Section 23 (b) of the Wills Act of June 7, 1917, P. L. 403. 4iO- A widow, living apart from her husband, although in Philadelphia, where he resided, was notified of his death by his executor immediately after it occurred; the grant of letters was duly advertised; the petition for probate of the will correctly stated the testator's real and personal property ; the inventory was duly filed ; but she filed no election to take against his will until more than two years after the issuance of letters : Held, that her election was too late. Under these facts the executor was under no duty to seek the widow out and advise or assist her to take against the will. The widow was not relieved from the necessity of filing an election in accordance with the Act of 1917, by reason of the fact that the will did not leave her anything. "The object of the Legislature was evidently to fix a definite time after which the right to elect against the will should cease (unless, perhaps, fraud be shown), and, as the auditing judge well says, this clause of the statute is one for the protection of those dealing with the estates of decedents, and is to be regarded as a statute of repose. It will be remembered that formerly an election could be made at any time and need not even be in writing. The Act of May 29, 1832, Sec. 35, P. L. 190, I Purd. 1277, provided a means by citation to compel the widow to make her election as a matter of record after the expiration of a year from the testator's death. The Act of April 21, 191 1, P. L. 79, 7 Purd. 7766, then enacted that surviving husbands or wives, electing to take under or against the wills of decedents, should in all cases manifest their elections in writing, signed and acknowledged, and even provided that no payment should be made to any husband or wife unless the election was executed, acknowledged and delivered ; the manifest intention of this act being, as was said in Beck's Estate, 265 Pa. 51, to promote certainty in the settlement of estates. "The present section, twenty-three of the Wills Act, in clause (a) assimilated the rights of the surviving husband and wife; clause (6) founded on Section i of the Act of 191 1, provided that the election should be made in writing, signed and acknowledged, and added the two-year i64 WILLS ACT— Section 23 (6), (c), (rf) limitation involved in this case. Clause (c) practically reenacted the second section of the Act of 191 1, and clause (rf) extended the citation granted by the Act of 1832 to the case of a husband, theretofore not included, and shortened the period from twelve to six months. "That the limitation prescribed by the statute must be observed at least in the absence of fraud, would appear to be perfectly clear from the language of the act, and the industry of counsel has discovered decisions in other states where similar acts have been likewise construed. Among them are Scheible v. Rinck, 195 111. 636; Shelton v. Sears, 187 Mass. 455; Akin V. Kellogg, 119 N. Y. 441 ; Smith v. Smith, 20 Vt. 270." Gest, J., in Flower's Estate, 30 Dist. 967. 247. NO PAYMENTS TO BE REQUIRED BEFORE ELECTION. (c) No payment from the estate of such decedent, except the exemption allowed by law to the widow, shall be required to be made to any surviving spouse unless his or her election shcJl have been first duly executed, acknowledged and delivered, as provided in clause (b) of this section. Note. — This is Section 2 of the Act of April 21, 1911, P. L. 79, 7 Purd. 7766, changed by inserting the provision as to widow's exemption, and the words "required to be." See Flower's Est, 30 Dist. 967. 248. SURVIVING SPOUSE MAY BE CITED TO MAKE ELECTION. (d) The orphans' court, on the application of any person in- terested in the estate of a decedent, may issue a citation, at any time after six months from the death of the testator, to the sur- viving spouse of the testator, to appear at a certain time not less than one month thereafter, in the said court, to make his or her election to take under or against the will, which election shall be filed of record, and shall be conclusive. If the surviving spouse shall neglect or refuse to appear on such citation, then upon due proof being made to the court of the service thereof, the said neg- lect or refusal shall be deemed an election to take under the will, and the decree of the court to that eflfect shall be conclusive. Note. — This is founded on Section 35 of the Act of March 29, 1832, P. L. 200, I Purd. 1277-8. The changes are the extension of the section to husband as well as wife, and the shortening of the period from twelve to six months, in harmony with the reduction of the period for the filing of the account. Some changes in phraseology have been made with a view to clearness. WILLS ACT— Section 23 (d), (r) 165 Where the Court of Common Pleas has refused the guardian of a weak- minded person permission to elect to take against the will of the ward's deceased husband, an order will not be made upon the petition of the executor directing the guardian to take under the will, although without such order the executor may not be able to make a good title to real estate which the will directs to be sold. Haack's Est., 30 Dist. 669. See Flower's Est., 30 Dist. 967. 249. ELECTION OF SURVIVING SPOUSE, OR DE- CREE OF COURT WHERE THERE IS A FAIL- URE TO ELECT, TO BE RECORDED AND FILED. (e) The election by a surviving spouse, or a certified copy of the final decree of any orphans' court, in cases where there shall have been an election in accordance with clause (rf) hereof, or a neglect or refusal to elect within the time prescribed by the order of the said court, shall, at the cost of the estate, be recorded by the personal representative of the decedent, in the office for the recording of deeds of the county where the decedent's will is pro- bated, in the deed book, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the gran- tees' index under the name of the surviving spouse, and shall be registered in the survey bureau, or with the proper authorities em- powered to keep a register of real estate, if any there be, in said county. The charges for recording and registering shall be the same as are provided by law for similar services. The election, or decree of the court, or a certified copy of either, may also be recorded in any office for the recording of deeds within this com- monwealth, with the same efifect as if a duly signed and acknowl- edged declaration to the efifect stated therein had been made by the person authorized to elect, and at his or her request recorded in said office according to law. After the said election shall have been recorded in the office for the recording of deeds as aforesaid, the said election, at the cost of the estate, shall be filed in the office of the clerk of the orphans' court and a record made of such filing by the said clerk. Note. — This is Section 3 of the Act of April 21, 191 1, P. L. 79, 7 Purd. 7766, with some changes in phraseology, the substitution of the clerk of the orphans' court for the register of wills, and the insertion of the pro- visions as to registration and as to charges for recording and registering. 1 66 WILLS ACT— Sections 24-25-26 250. ACT NOT TO APPLY TO WILLS OF PERSONAL ESTATE, EXECUTED BY TESTATOR DOMI- CILED WITHOUT THE COMMONWEALTH. Section 24. Nothing in this act contained shall be construed to apply to the disposition of personal estate by a testator whose domicile, at the time of his death, was out of this commonwealth. Note. — This is Section 17 of the Act of 1833, 4 Purd. 5128, modified so as to conform to the language of Section 25 of the new Intestate Act. (See 349 infra.) 251. SHORT TITLE. Section 25. This act shall be known and may be cited as the Wills Act of 1917. 252. WHEN ACT SHALL GO INTO OPERATION. Section 26. This act shall take effect on the thirty-first day of December, 19 17, and shall apply to the wills of all persons dying on or after said day. As to the wills of all persons dying before that day, the existing laws shall remain in full force and effect. Note. — This section corresponds to Section 27 of the new Intestate Act. (See 351 infra.) It supplies Section 18 of the Act of 1833, 4 Purd. 5129. That section of the Wills Act of 1917, which provides that a failure to make an election within two years "shall be deemed an election to take under the will" is of no retroactive effect, and does not apply where tes- tator died prior to the passage of said act. This is a new provision intro- duced by the Act of 1917, and was no part of the law until that time. "Annie E. Young died on March 26, 1917, months before the time set for the Wills Act to become operative, to wit, December 31, 1917, and months, moreover, before the bill was enacted by the legislature or ap- proved by the governor. Again Section 26 of the act in express and un- conditional language makes the statute apply only to the wills of persons dying on or after December 31, 1917 ; providing that as to the wills of all persons dying before that day. the existing laws should remain in full force and effect. Under the laws of the commonwealth which were in force at the date of the death of the testatrix, there was no time fixed or limited during which a surviving spouse was obliged to make his or her election, under penalty of being deemed and held to have elected to take under the will, because of neglect or failure to make such election during such limited period. See Beck's Estate, 265 Pa. 51 (1919). The said two-year period is applicable only to estates of testates dying on or after December 31, 1917." Per Hughes, P. J., in Young's Est., I Wash. 250. The Wills Act of June 7, 1917, P. L. 403, is retroactive so that where WILLS ACT— Sections 26-27 167 testatrix made her will prior to the passage of the act, but did not die until after that date, the Wills Act applies. A will being ambulatory speaks as of the date of death. In so holding Miller, J., said, inter alia : "The paper in question bears date and, if executed, was written on the 8th day of September, 1914, prior to the passage of the Wills Act of 1917. She died, however, after its passage, and the provisions of the Act of 191 7 by its terms apply to persons dying on or after said day, irrespective of the date of the execution of the will. That the section just quoted gives retrospective effect to the act seems to be settled in Auberd's App., 109 Pa. 447, and seems to be an answer to the contention that to apply the provisions of the Act of 1917 to a will made in 1914 does not involve retroactive legislation, no vested rights existing and no violation of con- tracts forbidden by the Constitution being involved, in view of the well known principle of law that wills, being ambulatory, speak of the date of the death of the testator.'' Perry's Estate, 67 P. L. J. 216. The provisions of the Wills Act do not effect a case where the decedent died on August 30, 1917. See Garnier v. Garnier, 16 North. 205, at p. 215 ; Mulligan's Est., 47 Pa. C. C. 546, 28 Dist. 309. 253. REPEALER. Section 27. The following acts and parts of acts of assembly are hereby repealed as respectively indicated, but so far only as relates to the estates, real and personal, of any person or persons dying on or after the thirty-first day of December, 1917. The repeal of the first section of an act shall not repeal the enacting clause. Sections 3, 4, 6 and 7 of an act entitled "An act concerning the probates of written and nuncupative wills, and for confirming devises of lands," passed in 1705, i Sm. L. 33, absolutely. Section 23 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, 1794, 3 Sm. L. 143, absolutely. Section 10 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, abso- lutely. Section 11 of an act entitled "An act supplementary to the sev- eral acts of this commonwealth concerning partitions, and for other purposes therein mentioned," approved April 7, 1807, P. L. 155, absolutely. An act entitled "An act to prevent devises and legacies from i68 WILLS ACT— SfiCTioN 27 lapsing in certain cases," approved March 19, 1810, P. L. 96, absolutely. Section i of an act entitled "An act relative to dower, and for other purposes," approved April i, 181 1, P. L. 198, absolutely. Section 11 of an act entitled "An act relating to registers and registers' courts," approved March 15, 1832, P. L. 135, absolutely. Section 35 of an act entitled "An act relating to orphans' courts," approved March 29, 1832, P. L. 190, absolutely. An act entitled "An act relating to last wills and testaments," approved April 8, 1833, P. L. 249, absolutely. Section 2 of an act entitled "An act further to regulate proceed- ings in courts of justice, and for other purposes," approved May 6, 1844, P. L. 564, absolutely. An act entitled "A supplement to an act relating to last wills and testaments, passed the eighth day of April, eighteen hundred and thirty-three, approved January 27, 1848, P. L. 16, absolutely. Sections 7 and il of an act entitled "A supplement to an act, entitled 'An act relative to the LeRaysville Phalanx,' passed March, Anno Domini one thousand eight hundred and forty-seven, and relative to obligors and obligees, to secure the right of married women, in relation to defalcation, and to extend the boundaries of the borough of Ligonier," approved April 11, 1848, P. L. 536, absolutely. Section 11 of an act entitled "An act relating to corporations and to estates held for corporate, religious and charitable uses," approved April 26, 1855, P. L. 328, in so far as it relates to estates, real or personal, bequeathed or devised. Section i of an act entitled "An act to amend certain defects of the law for the more just and safe transmission and secure enjoy- ment of real and personal estate," approved April 27, 1855, P. L. 368, in so far as it relates to devises. Sections i and 6 of an act entitled "An act relating to certain duties and rights of husband and wife, and parents and children," approved May 4, 1855, P' L. 430, absolutely. Section i of an act entitled "An act relating to dowers,'' ap- proved April 20, 1869, P. L. JT, absolutely. An act entitled "A supplement to an act relating to last wills and testaments, approved the eighth day of April, one thousand eight hundred and thirty-three, providing for the time from which wills shall speak and take effect, for the vesting of lapsed or void WILLS ACT— Section 27 169 devises of real estate in the residuary devisee, and for the execu- tion of powers over real and personal estate by the person in whom such powers are vested," approved June 4, 1879, P. L. 88, abso- lutely. An act entitled "An act to enable mothers in certain cases to ap- point testamentary guardians," approved June 10, 1881, P. L. 96, absolutely. An act entitled "An act to enable mothers, in certain cases, to appoint testamentary gaurdians, being a supplement to an act, bearing the same title, approved June tenth, one thousand eight hundred and eighty-one, and also a supplement to an act, entitled 'An act relating to certain duties and rights of husband and wife, and parents and children,' approved May fourth, one thousand eight hundred and fifty-five," approved May 25, 1887, P. L. 264, absolutely. Section 5 of an act entitled "An act relating to husband and wife, enlarging her capacity to acquire and dispose of property, to sue and be sued, and to make a last will, and enabling them to sue and to testify against each other in certain cases," approved June 8, 1893, P. L. 344, absolutely. An act entitled "An act declaring the construction of words in a deed, will or other instrument importing a failure of issue," ap- proved July 9, 1897, P. L. 213, in so far as it relates to devises or bequests of real or personal estate. An act entitled "An act to amend section two of an act, en- titled 'An act further to regulate proceedings in courts of justice, and for other purposes,' approved the sixth day of May, Anno Domini one thousand eight hundred and forty-four, relating to devises and legacies to brothers or sisters, or the children of broth- ers or sisters of any testator, and preventing the lapse thereof in the case of the death of such devisee or legatee during the lifetime of the testator," approved July 12, 1897, P. L. 256, absolutely. An act entitled "An act relating to elections by surviving hus- bands or wives to take under or against the wills of decedents ; to the recording thereof, and of final decrees, where parties have failed or refused to elect when required so to do ; and forbidding payments to such parties until they have made and filed their elec- tion," approved April 21, 191 1, P. L. 79, absolutely. An act entitled "An act to amend section eleven of an act, en- titled 'An act relating to corporations and to estates held for cor- porate, religious, and charitable uses,' approved the twenty-sixth lyo WILLS ACT— Section 27 day of April, one thousand eight hundred and fifty five," approved June 7, 191 1, P. L,. 702, in so far as it relates to estates, real or personal, bequeathed or devised. An act entitled "An act to amend an act approved the eighth day of April, one thousand eight hundred thirty-three, entitled 'An act relating to last wills and testaments,' by conferring the same rights upon the mother as upon the father," approved April 15' 1915. P- L. 124, absolutely. An act entitled "An act to amend an act, approved the tenth day of June, one thousand eight hundred eighty-one, entitled 'An act to enable mothers in certain cases to appoint testamentary guard- ians,' by extending certain rights to mothers," approved April 21, 1915, p. L. 145, absolutely. 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, so far as relates to the estates, real and personal, of any person or persons dying on or after the thirty-first day of December, 1917. THE REGISTER OF WILLS ACT of June 7, 1917 (P. L. 415). PRELIMINARY NOTES BY COMMISSION. In Section 5, the power of the register to revoke letters of ad- ministration is stated, in accordance with the existing law. In Section 8, an additional remedy is provided where any per- son having in his possession or under his control a testamentary paper conceals or withholds the same. In Section 9, the register is given additional power to subpoena witnesses. In Section 16, the probate of a will or the refusal to probate it by a register is made conclusive unless an appeal be taken within two years instead of three as the present law provides, and the remedy is expressly limited to an appeal from the register's decree. In Section 18, provision is made for the removal of contested will cases from the register's office to the orphans' court, in order to avoid the delays that sometimes occur under the present practice. In Section 21 (a), it is provided that appeals from all the judi- cial acts of the register must be taken within two years, and that the period may be limited to six months in case of those parties who have actual notice by citation. TABLE OF CONTENTS. 1917 Section Pamphlet Number Laws Herein The Register of Wills Act 415 254 Section i. Oath and bond of register 417 255 (a) Oath 2SS (b) Bond 256 1. Form and approval 256 2. Acknowledgment; recording and fil- ing of bond, 257 3. Copies of record of bond as evidence, 258 4. Provisions not to apply to certain counties, 259 (c) No liability on bond where letters granted under order of court, 418 260 Section 2. Deputy register, 261 Section 3. Jurisdiction of register 262 171 172 REGISTER OF WILLS ACT— Contents 1917 Section Pamphlet Number Laws Herein Section 4. Before what register will shoujd be pro- bated, 263 Section 5. Revocation of letters of administration by register, 264 Section 6. Probate of nuncupative wills, 265 Section 7. Probate of copies of wills proved in other States or counties, 419 266 Section 8. Citation to person having custody of will ; certification to orphans' court, 267 Section 9. Subpcenas to witnesses ; attachments ; witness' fees and mileage, 268 Section 10. Commissions or rules to take deposi- tions, 420 269 Section 11. Recording and filing wills; certified copies, 270 Section 12. Wills or papers in other than English language, 271 (a) Translation to be furnished, filed, and recorded, 271 (b) Effect of failure to furnish translation, 421 272 Section 13. Recording inventories and appraise- ments, 272 Section 14. Certified copies of bonds, inventories, accounts, et cetera, to be furnished by register 274 Section 15. Filing copies of wills and probates in other counties, 275 Section 16. Efifect of probate, 422 276 (a) Conclusiveness 276 (b) When no probate within three years ; effect as to conveyance or mortgages, . . 2yy Section 17. Precept by register to common pleas for issue d. V. n 278 Section 18. Certification of record to orphans' court on order of court 423 279 Section 19. Certifying record to orphans' court, where there are difficult or disputable questions 424 280 Section 20. Caveats 281 (a) Bond, 281 (b) Failure to give bond, 282 (c) Costs on caveat or appeal 425 283 (d) Appeals from orders as to security and taxation of costs, 284 REGISTER OF WILLS ACT— Section i (a), (&) i 173 1917 Section Pamphlet Number Laws Herein Section 21. Appeals to the orphans' court 285 (a) Period for appeal 285 (b) Effect of appeal 286 Section 22. Bill of costs 287 Section 23. Procedure to collect costs 426 288 Section 24. Register to collect fifty cents for use of Commonwealth, 289 Section 25. Short title section 290 Section 26. Repealer 426-9 291 254. TITLE. An Act Relating to the qualifications, jurisdiction, powers and duties of registers of wills, and regulating proceedings before said reg- isters, and the costs thereof, the effects of their acts, and appeals therefrom. 255. OATH AND BOND OF REGISTER,— OATH. 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 every person who shall be elected or appointed to the office of register of wills, before he shall enter upon the duties of the office, shall make oath or affirmation to support the constitution of the United States and the constitution of this commonwealth, and to perform the duties of the office of register with fidelity. Note. — This is the first part of Section i of the Act of March 15, 1832, P. L. 13s, 4 Purd. 407s, which was derived from the provisions of the federal and state constitutions, Section 3 of the Act of March 14, 1777, I Sm. L. 443; Section i of the Act of March 12, 1791, 3 Sm. L. 8; and Section 9 of the Act of April 6, 1830, P. L. 272. In the first line, the words ''elected or" have been inserted. 256. BOND,— FORM AND APPROVAL. (b) I. He shall also, with one or more sureties, to be approved by the judge or judges, if there be more than one, of the orphans' court of the county for which the register shall be elected or ap- pointed, and also by the governor, give a joint and several bond to the commonwealth, in a sum equal to half the sum prescribed 174 REGISTER OF WILLS ACT— Section i (b) i, 2, 3 by law for the official bond of the sheriflf for the time being of the same county, with condition faithfully to execute the duties of his said office, and well and truly to account for and pay, accord- ing to law, all moneys received by him for the use of the common- wealth, and to deliver up the books, seals, records and other writ- ings, belonging to his said office, whole, safe and undefaced, to his successor in office ; which said bond shall be for the use of all persons concerned, and for the relief of all who may be aggrieved by the acts or neglect of such register. Note. — This is the remainder of Section i of the Act of 1832. The provision of the Act of 1832 was that the sureties should be approved by "two judges of the Common Pleas." Section 2 of the Act of March 24, 1877, P. L. 37, 4 Purd. 4076, provided that in counties having separate orphans' courts the approval should be by the judge or judges of the orphans' court, except in counties having less than 300,000 inhabitants. Section i of the Act of April 27, 191 1, P. L. 87, 6 Purd. 7297, amends the act of 1877 by omitting the proviso. There seems to be no good reason why this section should not apply in all counties. Where there is no separate orphans' court, the approval will be by the same judges as under the Act of 1832, but they will act in the matter as judges of the orphans' court, which seems appropriate. 257. ACKNOWLEDGMENT, RECORDING AND FIL- ING OF BOND. 2. Every person elected or appointed as aforesaid shall cause the bond hereinbefore prescribed, being duly acknowledged by him and his sureties, before a judge of the orphans' court of the county, to be recorded by the recorder of deeds of the county, and as soon afterwards as convenient, to be transmitted into the office of the secretary of the commonwealth for custody, of which transmission he shall be entitled to receive the secretary's certifi- cate, without fee or reward. Note. — This is Section 2 of the Act of March 15, 1832, 4 Purd. 4075, which was founded on Section i of the Act of March 12, 1791, 3 Sm. L. 8. It is now altered by inserting in the first line the words "elected or," and by substituting "judge of the orphans' court of the county" for "magistrate of the city or county respectively." 258. COPIES OF RECORD OF BOND AS EVIDENCE. 3. Copies of the record of the official bond of any register, acknowledged and recorded as aforesaid, and duly certified by the recorder of deeds for the time being, shall be good evidence. REGISTER OF WILLS ACT— Sections i (b) 3, 4 (c)-2 175 in any action brought against him or his sureties, on such bond, according to its form and effect, in the same manner as the original would be, if produced and offered in evidence. Note.— This is Section 3 of the Act of March 15, 1832, 4 Purd. 4076, which was founded on Section i of the Act of March 12, 1791, 3 Sm. L. 8. 259. PROVISIONS NOT TO APPLY TO CERTAIN COUNTIES. 4. The provisions of this clause shall not apply to registers of wills in counties having over eight hundred thousand and under one million five hundred thousand inhabitants according to the last preceding United States census. Note. — This is inserted to exclude counties within the provisions of the Act of April 28, 191S, P- L. 198, 5 Purd. 5360. 260. NO LIABILITY ON BOND WHERE LETTERS GRANTED UNDER ORDER OF COURT. (c) Whenever letters testamentary or of administration shall have been heretofore, or shall be hereafter granted bv the register of wills of any of the counties in this commonwealth, by the direction and in pursuance of an order of the orphans' court, and conformably thereto, the said register and his sureties shall not be liable on the register's official bond for any loss or damage which may have accrued or which may hereafter accrue to any person in consequence of the compliance of said register with the said order of the orphans' court. Note.— This is Section 10 of the Act of April 3, 1851, P. L. 305, i Purd. 1080. 261. DEPUTY REGISTER. Section 2. Every register shall appoint and keep a deputy, to officiate in his absence, for whose conduct he and his sureties shall be accountable ; and such deputy shall be capable in law to take the probate of wills and testamentary papers, and to grant letters testamentary and of administration, and to do whatever else by law appertains to the office of register. Note. — This is Section 4 of the Act of March 15, 1832, 4 Purd. 4076, which was founded on Section 6 of the Act of March 14, 1777, i Sm. L. 443, with the addition of the provision as to liability of the sureties. The words "testamentary papers" have been substituted for "testaments," and the words "testamentary and" have been inserted after "letters." 176 REGISTER OF WILLS ACT— Sections 3-4 262. JURISDICTION OF REGISTER. Section 3. Every register qualified to act, as aforesaid, shall have jurisdiction, within the county for which he shall have been elected or appointed, of the probate of wills and testamentary papers, of the granting of letters testamentary and of administra- tion, of the passing and filing of the accounts of executors and administrators, and of any other matter whereof the jurisdiction may be at any time expressly annexed to his said office ; and the act of any register, in any matter whereof another register has the exclusive jurisdiction, shall be void and of no effect. Note.— This is Section 5 of the Act of March 15, 1832, 4 Purd. 4077, which was new in that act. The words "elected or" have been inserted in line 3. The words "testa- mentary papers'' have been substituted for "testaments" in line 4, and the words "and guardians" omitted in line 6. Section 5 of the Act of April 6, 1791, 3 Sm. L. 20, 4 Purd. 4079, makes it the duty of the register to give notice of legacies to public corporate bodies. Section 66 of the Act of February 24, 1834, i Purd. iioo, imposed that duty upon the executors, and seems to have superseded the above section of the Act of 1791, which is therefore recommended for repeal. See the note to Section 18 of the Fiduciaries Act, (see 459-464 supra) which is founded on Section 66 of the Act of 1834. See Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006. 263. BEFORE WHAT REGISTER WILL SHOULD BE PROBATED. Section 4. Wills shall be probated only before the register of wills of the county within which was the family or principal resi- dence of the decedent, at the time of his decease, and, if the de- cedent has no such residence in this commonwealth, then only before the register of the county where the principal part of the goods and estate of such decedent within this commonwealth shall be. Note. — This is a new section, modeled upon Section 2 (o) (see 355 infra) of the Fiduciaries Act, which relates to the granting of letters testamentary and of administration. "Section 4 of the Register of Wills Act of 1917 is mandatory in its requirement that wills shall be probated only before the register of wills of the county within which was the family or principal residence of the decedent at the time of his death, and, therefore, in view of the un- contradicted evidence that this testator's family residence at the time of his death was in Delaware County, the register of wills of Philadelphia REGISTER OF WILLS ACT— Sections 4-5 177 County had no jurisdiction to probate his will. See Wall v. Wall, 123 Pa. S4S-" Gummey, J., in Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006. Where a testator has two residences in different counties, one in a city and one in the country, and lives in both of them at different times in the year, the question which of them is to be considered as his family or principle residence is one of intention. (See Bumpus's Est., 23 Dist. 654, citing Evan's Est., 17 Dist. III.) and where such testator directs his at- torney to state in the will, that he was a resident of the county in which his city house was situated, probate in that county will be sustained although he voted and paid the personal tax in the county where his country house was situated. Winsor's Est, 47 Pa. C. C. 105, 27 Dist. loio, 32 York 131 ; affirmed in 264 Pa. 552, 107 Atl. 888, on the ground that when decedent declared his residence in his will it was his last formal declaration of intention and he did nothing thereafter to indicate the choice of a different residence. 264. REVOCATION OF LETTERS OF ADMINISTRA- TION BY REGISTER. Section 5. Any register of wills shall have power to revoke letters of administration granted by him whenever it shall be made to appear to him that such letters have been granted to, or on the nomination of, persons who are not the next of kin of the decedent entitled to administer, or whenever, after the granting of letters of administration, a will of the decedent shall be duly proved and admitted to probate. Note. — This is a new section, intended to be declaratory of the exist- ing law and to remove any possible doubt as to the original jurisdiction of the register in the cases mentioned, as distinguished from the revoca- tion of letters testamentary. See form 71. Where letters of administration have been granted to a niece and nephew, there being no children, and without information to the register of other nieces and nephews, the register may revoke said letters in the in- terest of all concerned, and to correct an honorable misunderstanding. In an appeal from decision of register revoking letters of administration, the court, in an opinion of Harman, J., said, inter alia: "Prior to the passage of the Act referred to, (Sec. S) there was no statutory enactment authorizing the register of wills to revoke letters, yet it was held in numerous cases since the old Act of 1832, which here- tofore governed, that the register had a right to revoke the letters of ad- ministration for cause shown. These decisions, (Headley's Est, 39 Pa. C. C. 165, 21 Dist. 586; Mc- Caffrey's Est, 38 Pa. 331; Shomo's Appeal, 57 Pa. 356; Neidig's Est., 183 Pa. 492) and many others of like import, establish the right of the register to revoke in the instances cited in the absence of any direct statutory enact- 12 178 REGISTER OF WILLS ACT— Sections 5-6 ment giving him that power. And if Section 5 of the Act of 1917, referred to, was merely intended to be declaratory of the existing law, we seriously question, whether the register is now limited in his power to revoke letters in the two instances cited in Section 5. He has said in the order filed revoking the letters that he does it "to correct an honorable misunder- standing in the granting of the letters in the first instance." Of the four reasons given by him in his order, this is the only one to which we are inclined to give serious consideration. The others seem to us to be with- out weight, and alone, would not justify his decree.'' Sharpless' Est., 28 Dist. 746, 15 Del. 16, 20 Luz. 161. A petition addressed to the orphans' court to revoke letters of ad- ministration, will be dismissed. Such petition must be addressed to the register of wills. The court, per Wilhelm, P. J., held, inter alia: "Under the authorities cited it is our duty to dismiss this petition because the attempt to have the orphans' court exercise its jurisdiction is premature. This is the law as it stood before the Register of Wills Act of 1917, which contains this clause: (Section S, supra.) This is a new section intended to be declaratory of the existing law and to remove any possible doubt as to the original jurisdiction of the register in the cases mentioned." Wehry's Est., 47 Pa. C. C. 486, 15 Schuyl. 262, 33 York 68. A register of wills, having admitted a will to probate and granted letters testamentary thereon, is without jurisdiction, upon the presentation of an alleged later will, to revoke said letters. A register of wills may revoke letters of administration improvidently granted but not letters tes- tamentary. The orphans' court is without jurisdiction to review a reg- ister's decree admitting a will to probate except on appeal as provided by the Act of June 7, 1917, Section 21, P. L. 415. The court, per Corbet, P. J., held, inter alia: "That the register was without jurisdiction to entertain the petition for the revocation of the letters testamentary referred to. Under Section 5 of the act last referred to, the register has power to revoke letters of administration granted by him, but no such power is given him with re- spect to letters testamentary.'' Burtop's Est., 66 P. L. J., 65. 265. PROBATE OF NUNCUPATIVE WILLS. Section 6. No nuncupative will shall be admitted to probate, nor shall letters testamentary thereon be issued till fourteen days after the day of the death of the decedent be fully expired, nor shall any nuncupative will, at any time, be admitted to probate, unless process have first issued to call in the surviving spouse of the decedent, if any, and such of his or her relations or next of kin as would be entitled to the administration of his or her estate in case of intestacy, to contest the same, if they please. Note. — This is Section 10 of the Act of March 15, 1832, i Purd. 1068, which was derived in part from Section 5 of the Act of 1705, i Sm. L. 33. In the present draft, "surviving spouse" is substituted for "widow." REGISTER OF WILLS ACT— Sections 6-7-8 179 Section 11 of the Act of 1832, i Purd. 1068, also relating to nuncupative wills, is embodied in Section 4 (c) of the new Wills Act (see 220 supra.) 265. PROBATE OF COPIES OF WILLS PROVED IN OTHER STATES OR COUNTIES. Section 7. Copies of wills and testaments proved in any other state, territory or possession of the United States of America, or any foreign country according to the laws thereof, and duly au- thenticated, may be offered for probate before any register having jurisdiction, and proceedings thereon may be had, with the same effect, so far as respects the granting of letters testamentary, or of administration with the will annexed, as upon the originals ; and if the executor or other person producing any such copy shall produce also therewith a copy of the record of the proceedings for the probate of the original, and of the letters testamentary, or other authority to administer, issued thereon, attested by the person having power to receive the probate of such original, in the place where it was proved, with the seal of office, if there be one, annexed, together with the certificate of the chief judge or presiding magistrate of the state, country, county or district where such original was proved, that the same appears to have been duly proved, and to be of force, and that the attestation is in due form, such copies and proceedings shall be deemed sufficient proof, unless the contrary be shown, for the granting of letters testamentary or of administration with the will annexed, as the case may require, without the production or examination of the witnesses attesting such will. Note. — This is Section 12 of the Act of March 15, 1832, i Purd. 1068, which was new in that act. The repeal of Section I of the Act of 1705, I Sm. L. 33, is recommended. See form 46. 267. CITATION TO PERSON HAVING CUSTODY OF WILL; CERTIFICATION TO ORPHANS' COURT. Si;cTi0N 8. The register having jurisdiction, as aforesaid, shall, at the instance of any person interested, issue a citation to any person having the possession or control of a testamentary writing, alleged to be the last will and testament of a decedent, requiring him to produce and deposit the same in his office for probate ; and if such person shall conceal or withhold such writing, during the space of fifteen days, after being personally served with a i8o REGISTER OF WILLS ACT— Suctions 8-9 citation issued in the manner aforesaid, it shall be the duty of the register forthwith to certify the record of the proceeding to the orphans' court of said county, and the said court, upon petition of any person interested, shall proceed to enfore obedience to said citation by attachment as in cases of citation issued from said court. Note. — This is Section 7 of the Act of March 15, 1832, P. L. 136, i Purd. 1067, which was new in that act. The words following "manner and form aforesaid," and providing a remedy by attachment in the orphans' court, are submitted for the pro- vision of the Act of 1832 that the person "shall be liable to an indictment as for a misdemeanor, or to an action for damages by the person ag- grieved." The provision quoted seems to be ineffectual, since no punishment for the "misdemeanor" is prescribed, and it would usually be difficult if not impossible to prove damages. It has been held that, under the Act of 1832, the orphans' court will not attach for failure to obey the citation issued by the register; McDonald's Est., 14 Phila. 253. The change rec- ommended would therefore seem to be advisable. See forms 32, 72. "If the forgery (of a will) was personally known to the alleged testa- tor, he could, if competent, clear up the matter by another will, — contain- ing, if he chooses, merely a clause of revocation, — except in those rare cases where the alleged will would be irrevocable because contractually made upon sufficient consideration, in which event 1 have no doubt he could maintain a bill quia timet. So, too, it would lie at the instance of anybody in interest, if the alleged testator was incompetent. If the paper becomes known after his death. Sections 7 and 8 of the Act of March IS, 1832, P. L. 137, and Sections 8 and 9 of the Act of June 7, 1917, P. L. 415, provide a complete remedy to compel the production of the docu- ment, after which a caveat duly prosecuted would result in a conclusive determination of the question of validity, either by a decree of the reg- ister of wills or the orphans' court, or by judgment on the verdict of a jury after issue awarded. From such a proceeding the parties claiming under the alleged will could not withdraw, nor could they enter a dis- continuance or suiifer a nonsuit. In every contingency, therefore, we have a statutory proceeding, providing a complete and therefore an exclusive remedy." Per Mr. Justice Simpson in dissenting opinion in Fleming's Est., 26s Pa. 399, 109 Atl. 265. 268. SUBPCENAS TO WITNESSES; ATTACH- MENTS; WITNESS FEES AND MILEAGE. Section 9. Whenever any testamentary writing shall be offered for probate, or application shall be made for letters testamentary or of administration, before any register having jurisdiction there- REGISTER OF WILLS ACT— Sections 9-10 181 of, such register shall have power to issue a subpoena, with or without a clause of duces tecum, to any person whose name may be subscribed to such testamentary writing as a witness, or who may be alleged to him to be otherwise capable of proving the due execution of such testamentary writing, or to any person who may be a material witness in the matter of such probate or of the granting of letters testamentary or of administration, command- ing him, under a penalty of three hundred dollars, to appear be- fore said register at his office, at a day certain, not less than five days from the service of such subpoena, and depose and testify what he may know concerning the execution of such writing or otherwise concerning such probate or the granting of letters ; and if such person, being subpoenaed as aforesaid, shall refuse or neglect to appear as commanded, the register shall have power to issue an attachment against such witness to compel his ap- pearance, or the party aggrieved may have an action against said witness to recover the said penalty, in the manner allowable by law in cases of subpoenas issued to witnesses by the courts of common pleas. Witnesses appearing before the register in obedi- ence to subpoenas as aforesaid shall be entitled to the same fees and mileage as are allowed by law to witnesses in the orphans' court. Note. — This is Section 8 of the Act of March 15, 1832, i Purd. 1067, which was new in that act. It is now extended to include applications for letters as well as for probate, and to apply to all witnesses and not merely the subscribing witnesses. A subpoena instead of a citation is provided for, and, by omitting words "such person being within the county, or within thirty miles of the office of said register," the subpoena is made to operate throughout the state. The provision for witness fees and mileage is new. Under Section 8 of the Act of 1832, it has been held that the register has no power to summon any but the subscribing witnesses : Burns's Will, II Phila. 35; Com. v. Bunn, 71 Pa. 405. See form 33. See Fleming's Est., 265 Pa. 399, 109 Atl. 265. (See 267 supra.) 269. COMMISSIONS OR RULES TO TAKE DEPOSI- TIONS. SECTION ID. On the application of any person interested, every register shall have power to issue commissions or rules to take the depositions of witnesses in other counties or states, or in foreign countries, in all cases within his jurisdiction. l82 REGISTER OF WILLS ACT— Sections 10-11-12 (a) Note.— This is Section 9 of the Act of March 15, 1832, 4 Purd. 4079, which was new in that act. It is now altered by adding the words ''or rules" after "commissions," and by omitting, at the end, the words "upon interrogatories filed in his office." The purpose of these changes is to permit the taking of deposi- tions on rule, without written interrogatories. See form 34. 270. RECORDING AND FILING WILLS; CERTIFIED COPIES. Section ii. All original wills, after probate, and the copies of all original wills produced under the provisions of this act, shall be recorded and filed by the register of the respective county, and shall remain in his office, except when required to be had before a higher tribunal, by certiorari, or otherwise, and if removed for such cause, they shall be returned in due course to the office where they belong; and the copies of all the probates thereof, under the public seals of the courts or officers where the same may have been, or shall be so taken or granted respectively, except copies of probates of such wills and testaments as shall appear to be annulled, disproved or revoked, shall be adjudged and are hereby enacted to be matter of record, and good evidence to prove the gift or devise thereby made. Note. — This is Section 17 of the Act of March 15, 1832, i Purd. 1072, which was derived in part from Section i of the Act of 1705, i Sm. L. 33. 271. WILLS OR PAPERS IN OTHER THAN ENGLISH LANGUAGE;— TRANSLATION TO BE FUR- NISHED, FILED AND RECORDED. Section 12. (a) Any and all person or persons who shall offer for probate any will or codicil, or who shall offer any other writ- ten or printed instrument to be recorded in any register's office in this commonwealth, or to be filed in said office as required by law, which will, codicil or instrument shall be in any other than the English language, shall furnish at his, her or their expense, to the register, a sworn translation in English of such instrument, and the register shall attach or cause to be attached such trans- lation 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 recording is now REGISTER OF WILLS ACT— Sections 12 (o), (6)-i3 183 or hereafter may be required, both the original and the translation in English shall be recorded. Note. — This is founded on Section i of the Act of May 31, 1893, P. L. 188, 4 Purd. 4053, which act includes also deeds, mortgages, and other instruments to be recorded in any recorder's office or filed in any court of record. There is a similar local act in Berks County (Act of February 27, 1872, P. L. 173) relating to wills. 272. EFFECT OF FAILURE TO FURNISH TRANSLA- TION. (b) The register of wills shall not file or mark filed, record or mark recorded, any written or printed instrument in violation of this section, nor shall any paper filed or recorded in violation of this section be notice to any person in any legal proceeding whatever, nor be received or considered in evidence in any pro- ceeding at law, in equity or in the orphans' court. Note. — This is founded on Section 2 of the Act of May 31, 1893. 273. RECORDING INVENTORIES AND APPRAISE- MENTS. Section 13. It shall be the duty of the registers of wills of the several counties of this commonwealth to record all inven- tories and appraisements of the estate of any decedent, filed in the office of the register of wills by the executor or admin- istrator of any such decedent's estate, in a book to be provided for that purpose ; and the same shall be indexed by such reg- ister of wills, in an index book provided for that purpose: and true and attested copies or exemplifications of all such inven- tories and appraisements, so enrolled, certified under the hand and seal of such register of wills, shall be allowed in all courts, when produced, and are hereby declared and enacted to be as good evidence and as valid and effectual in law as the original inventory and appraisement themselves ; and the said register of wills shall be allowed, for performing such duties, the same fees as are now allowed by law to such officers for performing similar services. Note.— This is Section i of the Act of June 24, 1885, P. L. 155, i Purd. 1092. Section 4 of the Act of April 19, 1856, P. L. 459, 4 Purd. 4080, provides : "It shall be the duty of every register of wills to keep a minute-book, duly indexed, in which shall be entered minutes, showing what papers 184 REGISTER OF WILLS ACT— Sections 13-14-1S have been filed in his office, and also what collateral inheritance taxes have been paid, and on what estates." Section s of the same act imposes the same duties on the register of Philadelphia County, but adds that he shall "receive therefor ten cents for making said entry of each paper, and each item of property briefly described; and for certificates thereof, the same fees as for recording done in his office, besides thirty-seven and a half cents for the seal." The repeal of these sections is recommended as obsolete and unneces- sary. 274. CERTIFIED COPIES OF BONDS, INVENTORIES, ACCOUNTS, ETC., TO BE FURNISHED BY REGISTER. Section 14. It shall be the duty of every register to make and certify, under the seal of his office, true copies of all bonds, in- ventories, accounts, actings and proceedings whatsoever, remain- ing in his office, being thereunto required by any person having an interest therein, and to deliver the same, within a reasonable time, to such person applying therefor, on receiving the fee allowed to him by law for such copy or copies ; and if any register shall refuse, after the tender of his lawful fees, to make or de- liver such copy or copies as aforesaid, the orphans' court of the county may, on petition filed by the person so applying to the register, make and enforce such order upon said register as may be necessary to enforce his duty as aforesaid. NoTfi. — This is Section 32 of the Act of March 15, 1832, 4 Purd. 4079, which was Section 39 of the Commissioners' Draft and was "framed with a view to some provisions in the Act 27th March, 1713, Section 16 (i Sm. L. 81) and also in the statutes 21 H. 8, c. 5, Section 5." In the present draft, the words at the end, beginning "the orphans' court," have been substituted for "he shall be deemed guilty of a misdemeanor in office." The remedy suggested seems more appropriate than an indictment or impeachment, and in the sec ion as it now stands no penalty is provided for the misdemeanor. 275. FILING COPIES OF WILLS AND PROBATES IN OTHER COUNTIES. Section 15. In any case in which a last will or testamentary paper shall have been duly proved before the register of wills for any county of this commonwealth, and shall relate to real estate in any county thereof, it shall be lawful to take from the office of such register a copy of said will or paper and of the probate thereof, duly certified by such register, under his seal of office, to be a full and perfect copy of the same, and to file the REGISTER OF WILLS ACT— Sections 15-16 (a) 185 said copy in the office of the register of wills in any county in which any of the real estate owned by the testator may be, which said register shall forthwith record the said copy. And the record of such copy shall be, and is hereby declared to be, as valid and effectual in law as the original will or paper after probate, or its duly certified copy, or its record would be for all purposes of vesting title, of evidence and of notice. Like proceedings may be had at the instance of any party in- terested to obtain the certification of all subsequent proceedings appearing in the records of the register of wills concerning such probate. Note.— This is Section i of the Act of April 23, 1889, P. L. 48, i Purd. 1073, altered by omitting, after "thereof" in line 4, the following words : "and the probate of this will has become conclusive respecting real estate, either by lapse of time or by judgment of the proper court having juris- diction." The reason for prohibiting the filing of copies in other counties during this period is removed by the addition of the last paragraph. The word "copy" has been substituted for "exemplification," since a copy certified by the register is all that the section requires, and an ex- emplified copy is ordinarily understood to be one authenticated in ac- cordance with the Acts of Congress. 276. EFFECT OF PROBATE,— CONCLUSIVENESS. Section 16. (a) The probate or refusal of probate by the reg- ister of the proper county of any will, or any other paper pur- porting to be a will or codicil thereto, shall be conclusive as to all property, real or personal, devised or bequeathed by such will or codicil or other paper, unless, within two years from the date of such probate or refusal of probate, those interested shall ap- peal from the decree of the register as herein provided : Provided, That all persons who would be sooner barred by this section taking immediate effect shall not be thereby barred before two years from the date hereof. Note. — This is founded on Section i of the Act of June 25, 1895, P. L. 305, I Purd. 1072, which amended Section 7 of the Act of April 22, 1856, P- L. 533, by reducing the period from five years to three. The Act of 189s reads as follows : — "The probate or the refusal of probate by the register of the proper county of any will, or any other paper purporting to be a will or codicil thereto, devising real estate, shall be conclusive as to such realty unless, within three years from the date of such probate or refusal of probate, those interested to controvert or sustain it shall, by caveat and action at law duly pursued, contest the validity of such will as to such realty or claim thereunder by such action duly prosecuted to final judg^^ i86 REGISTER OF WILLS ACT— Sections i6 (o), (6)-i7 ment in favor of the plaintiff therein: Provided, That all persons who would be sooner barred by this section taking immediate effect shall not be thereby barred before two years from the date hereof." In Wilson v. Gaston, 92 Pa. 207, the language of the Act of 1856 was criticised adversely, and it was held that the "action at law" referred to was an issue d. v. n., and an action of ejectment did not lie to contest the probate of a will. The word "caveat" is also inappropriate, since a caveat necessarily precedes "the probate or refusal of probate." In Wall v. Wall, 123 Pa. S4S, it was held that the probate of a will might be col- laterally attacked in ejectment where it appeared on the face of the pro- ceedings that the register was without jurisdiction because the will was not signed at the end by the decedent. The ground of this decision was not the language of the Act of 1856, but the general rule that any judg- ment may be collaterally attacked for want of jurisdiction. In the present draft, the section is made to apply to personal as well as real estate, the period is reduced from three years to two, and the words "appeal from the decree of the register as herein provided," are substituted for the provision as to "caveat and action at law." The latter change is in accordance with the opinion in Wilson v. Gaston, supra, and does not interfere with the principle announced in Wall v. Wall, supra. Cited in Burtop's Est., 66 P. L. J. 765. 277. WHEN NO PROBATE WITHIN THREE YEARS; EFFECT AS TO CONVEYANCE OF REAL ESTATE. (&) The last w\\\ of any decedent may be offered for probate at any time : Provided, That if such will shall not have been offered for probate within three years from the date of the death of the testator, the same shall be void and of no effect against a bona fide conveyance or mortgage of the real estate of said de- cedent, duly recorded before the date of the offering of said will for probate. Note. — The proviso is founded on Section i of the Act of April i, 1909, P. L. 79, 5 Purd. 5884; the first part is new, but declaratory of the present 278. PRECEPT BY REGISTER TO COMMON PLEAS FOR ISSUE d. V. n. Section 17. Whenever a caveat shall be entered against the admission of any testamentary writing to probate, and the person entering the same shall allege as the ground thereof any matter of fact touching the validity of such writing, it shall be lawful for the register, at the request of any person interested, to issue a REGISTER OF WILLS ACT— Section 17 187 precept to the court of common pleas of the respective county, directing an issue to be formed upon the said fact or facts, and also upon such others as may be lawfully objected to the said writing, in substantially the following form, viz : — (L. S.) County, ss. The Commonwealth of Pennsylvania : To the judges of the court of common pleas of the said county, greeting: Whereas, A. B., on the day of , in the year, etc., presented to G. H., our register of wills of said county, for probate, a certain writing hereto annexed, purporting to have been made the day of , in the year, etc. (or otherwise describing the paper in question), which said writing the said A. B. avers is the last will and testa- ment of the said C. D., and whereas E. D., who is a son and heir of the said C. D. (or intermarried with F. D., who is a daughter and heir, etc., according to the fact), hath objected before our said register that the said writing was procured by duress and constraint (stating the matters of fact objected), and whereas the said A. B. (or E. D.) hath requested that an issue may be directed into our said court to try by a jury the vaHdity of the said writing, and the matters of fact which may be objected there- to in our said court ; therefore, we command you that you cause an action to be entered upon the records of our said court, as of the day of the delivery of this our precept into the office of the prothonotary of our said court, between the said A. B. and the said E. D., so that an issue therein may be formed upon the merits of the controversy between the said parties, and tried in due course according to the practice of our said courts in actions commenced by writ ; and further, that you cause all other persons who may be interested in the estate of the said C. D., as heirs, relations or next of kin, devisees, legatees or executors, to be warned, so that they may come into our said court and become party to the said action, if they shall see cause, and that you cer- tify the result of the trial so had in the premises into the office of our said register. Attest. G. H., Register of Wills of the said county. And the facts established by the trial had and certified to the register as aforesaid, shall not be re-examined by the said reg- ister, nor upon any appeal from his decision. NoTi;.— This is Section 13 of the Act of March 13, 1832, i Purd. 1070, which was founded in part on Section 18 of the Act of April 13, 1791, 3 Sm. L. 28, 1 88 REGISTER OF WILLS ACT— Sections 17-18 In line 10 the word "substantially" has been inserted. Section 43 of the Act of 1832, I Purd. 1072, reads: "No immaterial variation from the forms given and prescribed in and by this act, shall vitiate or render void any proceedings in which said forms shall be used." The form in the present section is the only one included in this draft, and it therefore seems unnecessary to re-enact Section 43, the word "substantially" being intended to have the same effect. 279. ICERTIFICATION OF RECORD TO ORPHANS' COURT ON ORDER OF COURT. Section 18. Where a caveat is entered against the probate of any last will or testamentary paper, or where there is a dispute as to such probate or as to the granting of letters testamentary or of administration, the orphans' court of the county in which said will or testamentary paper has been offered for probate or said letters testamentary or of administration have been applied for, may, by general rule or by special order in the case, on the petition of the register of wills of said county or of any party interested, direct said register to certify the entire record thereto pertaining to said court, which shall then determine whether the will or testa- mentary paper shall be admitted to probate or an issue devisavit vel non be directed to the court of common pleas of said county, or whether said letters testamentary or of administration shall be granted, in like manner as if the said will or testamentary paper had been admitted to probate, or said letters testamentary or of administration had been granted, by said register and an appeal been taken to the orphans' court from his decree. The record may be thus certified at any stage of the proceedings before the register, and after its removal to the orphans' court no letters of administration pendente lite shall be granted by the register except by leave of the orphans' court on cause shown by any party in- terested. Note. — This is a new section, intended to prevent the needless and sometimes intentional delays which have often occurred in the prosecution of proceedings before registers. Where a petition was presented under this section alleging testamentary incapacity and undue influence and an answer was filed denying the same and no testimony was taken, the Court, in refusing the petition, held, per Cummings, P. J. : "From our examination of the section we are satisfied that the question of certifying the record is discretionary. The only question, therefore, for our decision, is, whether the court upon the presentation of a petition alleging undue influence and incapacity or unsoundness of mind. REGISTER OF WILLS ACT— Sbction i8 189 which allegations are denied in answer, should certify the record, or whether the court under such circumstances should direct that the usual proceedings be had before the Register of Wills. "After careful consideration and much thought we have decided that we will not exercise such discretion in favor of the petitioner for the reason should we do- so we would be practically making a register's court out of the orphans' court. Under such circumstances as these, if we should so decide, any person might by the mere presentation of a petition upon mere allegation of want of capacity or undue influence, remove any proceeding from the register into the orphans' court. We are unable to see any reason whatever, from our examination of the record, why this proceeding should be removed. "We are satisfied that the same will not be delayed if proceeded with in the regular way before the register, and in the event of any delay we are quite well satisfied that the register would ask that the same be certified." Fonda's Estate, S Northumberland 249. Where the entire record pertaining to the application of letters, a caveat having been filed, was certified by the Register of Wills to the orphans' court under this section of the act, the matter in controversy being the legitimacy of an alleged son and heir of the decedent, and in this proceeding a petition was presented by the said alleged son under Section 18 of the Register of Wills Act asking that an issue d. v. n. be directed, the court held that the disputed fact was not material or essen- tial to the determination of the question of the grant of letters of administration and refused to grant the issue. Wand's Est., 50 Pa. C. C. 516. When an order by the orphans' court upon the Register of Wills to certify the entire record of a proceeding before him, in accordance with Section 18 of the Act of June 7, 1917, P. L. 415, is lodged with him, his jurisdiction over the matter ends, and letters of administration pendente lite granted pursuant to an appointment made by him before service of the order are void and will be vacated. After service of the order the register may not act in the matter except by leave of court. The register's appointment of a person as administrator pendente lite is not the equivalent of a grant of letters, and, hence, cannot be perfected by granting letters after service of the order. When the provisions of Section 18 of the act are invoked, an appeal from the register does not lie, as the certification of the record and the disposition of disputed or controverted matters by the court de novo is a substitute for an appeal. "Jurisdiction is in the register to grant letters of administration gen- erally, including letters pendente lite under special circumstances, and the proceeding is well defined. Section 4 of the Fiduciaries Act of June 7, 1917, P. L. 447, provides that the register 'may, when the circumstances of the case require, grant to any fit person or persons letters * * * pendente lite, security to be entered as in other cases of administration.' But Section 7, par. a, of said act, provides that before the register issue letters he shall administer an oath in the prescribed form. Section 8, par. a. provides that upon his 190 REGISTER OF WILLS ACT— Suction 18 grant of letters he shall take a bond as there required. If he grant such letters (par. d of said section) without these prerequisites, 'such letters shall be void.' Letters are not to issue unless bond has been previously given : Moore v. Rahm, 2 S. & R. 375- In such a case, by the very terms of the law the letters are void: Bradley v. The Com., 31 Pa. 522. Failure to take the oath at the time may not per se void the grant of letters, but failure to give the bond has a very different effect : Beeber's Appeal, 99 Pa. 596. The register having made his selection (Hawkin's Orphans' Court Practice, Sec. 28), the next steps are the oath and the bond, 'and thereupon the issue of the letters.' "The register's appointment as of October 19 was not a grant of letters; it had no status as such by law or in practice. Before the register granted letters in compliance with the act, he was directed to certify the entire record to this court, it appearing that a caveat had been entered and a dispute as to the probate and grant of letters existed under Section 18 of the Register of Wills Act of 1917. This order was mandatory. From the moment of delivery, to the register his hand was stayed. He was directed to certify what had then been done. The attempted grant of letters on the 20th was, in the face of the order of the igth, an illegal exercise of power over a matter no longer in his jurisdiction; for it is in this tribunal where from October 19 the ques- tions will be determined whether the will shall be probated or an issue awarded, or whether letters pendente lite shall be granted. From this tribunal alone, after the date of delivery of the mandatory order, may the register have leave to grant letters of administration pendente lite. "It is strongly urged that only by appeal has this court jurisdiction of the matters in dispute. Such was the law touching all acts of the register excepted to prior to Section 18 of the Act of 1917. "This provision is new, and, say the commissioners, 'is intended to prevent the needless and sometimes intentional delays which have often occurred in the prosecution of proceedings before the registers.' This section, after providing that the orphans' court may direct the certification of the entire record, prescribes the course of procedure; this shall be 'in like manner as if an appeal had been taken from the register's decree.' "The answer, therefore, to the contention that an appeal only can lie is in Section 18 itself. When its provisions are invoked, an appeal does not lie. The certification of the record and the disposition of disputes or controverted matters by this court de novo is a substitute for an appeal. There is in the proceeding a bar a mandatory order directing the register to certify an entire pending proceeding. The attempted exercise of power of appointment after this order is void. "As Section 18 of the Register of Wills Act distinctly provides that, following the certification of a proceeding and its removal to the orphans' court, no letters of administration pendente lite shall be granted, except by leave of the orphans' court on cause shown by any party interested, application may now be made to this court by any person interested, with due notice to all persons interested to show cause why letters pendente lite should be granted, and if such cause be shown, the register will have leave to grant letters, after due notice to all parties interested REGISTER OF WILLS ACT— Sections 18-19 191 (Bieber's Appeal, 11 Pa. 167) to some fit and wholly disinterested person: Warner's Appeal, 207 Pa. 580." Henry's Est., 30 Dist. 945, 69 P. L. J. in, 35 York 122. 280. CERTIFYING RECORD TO ORPHANS' COURT, WHERE THERE ARE DIFFICULT OR DIS- PUTABLE QUESTIONS. Section 19. Where objections are made, or a caveat is entered, against the probate of any last will and testament, and no precept for an issue is directed by the register into the court of common pleas as aforesaid, or where objections are made to the granting of letters testamentary or of administration to any person apply- ing therefor, or where any question of kindred or other disputable and difficult matter comes into controversy before any register, he may certify the entire record thereto pertaining to the orphans' court of the county, for the determination by said court of such disputable and difficult matter, giving convenient notice of the time when the matter will be heard in said court to all persons interested. Note. — This is founded on Section 25 of the Act of March 15, 1832, 4 Purd. 4081, which provided for the appointment of a register's court to determine such matters. It has been held that the section was not re- pealed by the abolition of registers' courts by the constitution of 1874, and that such matters are now to be certified to the orphans' court : Com. V. Clark, I W. N. C. 330. The section has been revised accordingly. The draft, instead of providing that the register "shall, at the request of any person interested, certify the entire record," etc., provides that the register may certify the record and omits the provision as to request by a person interested. The last preceding section of the draft provides a method for the compulsory removal of the record, and it seems best to make the certification under the present section discretionary with the register. In the provision as to notice, the words "by citation or otherwise," fol- lowing "said court," and the words "and to the judges of said court," after "persons interested," and, at the end, the words, "and in the mean- time, he shall do and receive all proper acts preparatory to the business of said court," have been omitted as being inappropriate since the abolition of the register's court. A paper purporting to be the will of decedent was offered for probate and it was objected to for the reason that it was not legible and therefore meaningless ; that it was informal and there was no proof of its execution with testamentary intent ; that the signature was not the signature of the decedent. Held, that (under the above section) there arose such a dis- putable question of fact as should be passed upon by the jury and should be ig2 REGISTER 01? WII^LS ACT— Sections 19-20 (a) certified to the court of common pleas, that an issue might be framed to try the same. In a proceeding under this section of the act where the register has cer- tified the record to the orphans' court for the determination of disputable and difficult matter, the testimony of experts to aid the court in reading an alleged will may be heard if the characters are difficult to be deciphered or the language, whether technical or local or provincial or altogether foreign, is not understood by the court ; in which case the evidence of persons skilled in deciphering writings, or who understood the language in which the instrument is written, or the technical or local meaning of the terms which are employed, is admissible to declare what are the characters or to trans- late the instrument or decipher the proper meaning of particular words. Cross' Est., I Erie 83. 281. CAVEATS,— BOND. Section 20. (o) It shall not be lawful for any register of wills, having jurisdiction of the probate of wills and the granting of letters testamentary and of administration within this common- wealth, to entertain, consider or regard any caveat against the probate of any last will and testament, or the granting of letters testamentary or of administration, or any appeal from the probate of any such will, or from the grant of any letters testamentary or of administration, unless such caveator or caveators, appellant or appellants, shall, within ten days after the filing of such caveat or appeal, enter into a bond, in the name of the commonwealth of Pennsylvania, with at least two sufficient sureties to be ap- proved by the register, in a penal sum of not less than five hun- dred dollars and not to exceed five thousand dollars, as may be determined by the said register, conditioned for the payment of all or any costs which may be occasioned by reason of such caveat or appeal, and which may be decreed by such register or by the orphans' court to be paid by such caveator or appellant, which bond shall remain on file in the office of such register. Note. — This is Section i of the Act of June 6, 1887, P. L. 359, 4 Purd. 4086. See forms 3, SI-2. The fixing of the amount of the bond to be filed by an appellant to the orphans' court from the decision of the register of wills admitting a will to probate, is the exercise of a judicial power, and on appeal to the orphans' court from the order of the register fixing the amount of such bond, the court is confined to a review of the discretion exercised by the register; and where this discretion has not been judiciously exercised, the register will be reversed. Alexander's Est., 28 Dist. 993, 33 York i. REGISTER OF WILLS ACT— Section 20 (b), (c), (rf) 193 282. FAILURE TO GIVE BOND. {b) In case no bond, such as aforesaid, shall be filed with the register within ten days after the filing of any caveat or appeal, as aforesaid, such caveat or appeal shall be considered as aban- doned, and shall be dismissed, and proceedings may be had in all respects as if no such caveat or appeal had been filed. Note.— This is Section 2 of the Act of June 6, 1887 (P. L. 359), 4 Purd. 4087, the only change being to substitute "respects" for "cases" in the next to the last line. 283. COSTS ON CAVEAT OR APPEAL. (c) Such registers of wills and the orphans' court of the proper county, in all cases of appeal from the decree of the reg- ister, shall have pKJwer, and they are hereby directed, in all cases which may be instituted or adjudicated before them or any of them, and in all proceedings which may be had upon or by reason of any such caveat or appeal, to determine what amount of costs has been incurred or occasioned by the proceeding, and to direct by whom such costs shall be paid ; and when such costs or any part thereof shall be finally adjudged and decreed to be paid by any caveator or appellant, as aforesaid, any party to whom such costs are due and payable, or who may have advanced money to pay the same as the proceedings shall have progressed, may insti- tute an action in the proper court upon such bond for his own benefit, or that of all other parties interested, and may proceed thereon to final judgment and execution, if the same shall be nec- essary, as in other cases. Note. — This is Section 3 of the Act of June 6, 1887, 4 Purd. 4087, modi- fied by changing the word "direct" to "determine" in line 7, and by omit- ting after that word, "in the final order or judgment he or they shall make in each case." 284. APPEALS FROM ORDERS AS TO SECURITY AND TAXATION OF COSTS. (d) All the orders and decrees of the said register of wills re- lating to the amount and sufficiency of the security to be required by this section and to the taxation of costs in proceedings upon caveats and appeals before him, as aforesaid, shall be subject to the right of appeal to the orphans' court of the proper county by or on behalf of any and every person, who may appear or have appeared before him as litigants, or who may be affected by such order or decree. 13 ](j4 REGISTER OF WILLS ACT— Sections 20 (d)-2i (a) Note.— This is Section 4 of the Act of June 6, 1887, 4 Fmd. 4087, ex- cept that, in line 3, "section" is substituted for "act," and ' taxation for "disposition," and, at the end, "or decree" is substituted for "of appeal, the latter words having apparently been used in the Act of 1887 by mis- take. Although under Section 20, sub-division (o) and (d) of the Register of Wills Act of June 7, 1917, P. L. 4i5, the orphans' court is confined to a review of the discretion exercised by the register of wills in fixing the amount of security to effect an appeal from his decision admitting a will to probate, the court will review the action of the register and reduce the amount of the bond where his discretion has not been judiciously exercised. Alexander's Est, 28 Dist. 993, 33 York i. 285. APPEALS TO ORPHANS' COURT, — PERIOD FOR APPEAL. SECTION 21. (o) From all the judicial acts and proceedings of the several registers, including all decisions granting an issue devisavit vel non in a contest concerning the validity of a will, appeals may be taken to the orphans' court of the respective county virithin the term of two years : Provided, That any party entitled to appeal may be cited by such court to show cause why he should not appeal within six months from the date of such cita- tion, and, on the failure of such party to show cause, said court may make an order limiting the time for such appeal by said party to said period of six months. Note.— This is founded on Section 31 of the Act of March 15, 1832, 4 Purd. 4082, which was derived from Section 2 of the Act of September 30, 1791, 3 Sm. L. 58. It is now modified as follows: The provision of the Act of February 28, 1905, P. L. 26, 6 Purd. 7298, allowing an appeal from the granting by the register of an issue devisavit vel non, is incorporated; the reference to a register's court is omitted ; the period for appeal is reduced from three years to two ; and the proviso is added to cover cases where parties entitled to appeal delay unreasonably in doing so. See form 73, A register of wills, having admitted a will to probate and granted letters testamentary thereon, is without jurisdiction, upon the presentation of an alleged later will, to revoke said letters. A register of wills may revoke letters of administration improvidently granted but not letters testamen- tary. The orphans' court is without jurisdiction to review a register's decree admitting a will to probate except on appeal as provided by the Act of June 7, 1917, Section 21, P. L. 41S. Burtop's Estate, 66 P. L- J. 765. Only the register of the county where decedent resided should grant letters on his estate. •REGISTER OF WILLS ACT— Ssctions 21 (a), (6)-22 195 A register from another county in such case may appeal from the decree of the register granting the letters. In so holding, Gummey, J., said, inter alia: "When we examine the act which gives a right of appeal (Section 21 of the Register of Wills Act of 1917), we find that there are no restrictions as to the parties entitled to exercise that right. Of course the appeal must be taken by a party in interest : See Curtis's Estate, 253 Pa. 389. * * * "That the Register of Wills of Delaware County has a pecuniary in- terest in the controversy must be conceded, as in the event of the will being probated in his county, he would be entitled to receive not only the fees which accrue to him by the act of probate, but also the compensation allowed him as the agent of the commonwealth for the collection of the collateral inheritance tax to which this estate is subject; but, passing this, it seems to me that the register of wills of every county is charged with the duty of seeing that the laws relating to his office are enforced and obeyed ; for if the register of wills, in a matter of this kind, has not a right of appeal, who would have that right, if all of the beneficiaries under a will, with an intention to evade the law, probated a will in a county other than the one designated by the Register of Wills Act? It is one of the protections given to creditors that the provisions of the act shall be strictly followed. Creditors are charged with knowledge of the law, and, knowing the law, they would naturally look for the probate of a testator's will in the county which the law designated as the proper county for that purpose; but if the view here contended for should be sustained, it would not be difficult for an executor, by collusion with the beneficiaries, to probate in Allegheny County, or in any other county to which a passing fancy might lead them, a will required by law to be pro- bated in Philadelphia County. * * * The appeal is sustained." Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006. See, also, Winsor's Est., 47 Pa. C. C. 105, 27 Dist. loio, 32 York 131; affirmed in 264 Pa. 552, 107 Atl. 888. 286. EFFECT OF APPEAL. {b) No appeal from any decree of the register, concerning the validity of a will or the right to administer, shall suspend the powers or prejudice the acts of any executor or administrator to whom letters have been granted. Note. — This is founded on a part of Section 42 of the Act of March 15, 1832, 4 Purd. 4092, which relates to appeals from the register's (orphans') court, and is considered in the draft of the new Orphans' Court Act. 287. BILL OF COSTS. Section 22. In counties wherein separate orphans' courts are now or may be established, the said courts shall establish a bill of costs to be chargeable to parties and to estates, for the probate of wills and testaments, and granting of letters testamentary and of administration, and for all the services of the register of wills of 196 REGISTER OF WILLS ACT— Sections 22-23-24 such county in the transaction of the business of his office : Pro- vided, That the tax to be paid to and received by the register for the use of the commonwealth shall not be less than the sum now or hereafter fixed by law : And provided further, That in coun- ties wherein no separate orphans' courts have been or shall be established, the law as to fees to be charged by registers of wills shall remain a"s heretofore. Note. — This is Section 1 of the Act of March 24, 1877, P. L. 37, 2 Purd. 1651, and 4 Purd. 4081. The second proviso has been added in order to show that it is not the intention of the present draft to deal with the subject of fees and salaries of registers now regulated by Section 7 of the Act of April 2, 1868, P. L. 10, 2 Purd. 1650, Section 37 of the Act of March 15, 1832, P. L. 14S, or local acts. The Commissioners have considered it best not to attempt to include this subject or the subjects of the appointment of clerks, stenographers, etc., and their salaries. 288. PROCEDURE TO COLLECT COSTS. Section 23. Whenever any proceedings before a register shall be wholly ended, and the fees and costs accrued thereon shall re- main, during the space of thirty days thereafter, due and unpaid, such register may file a bill thereof, under his hand and the seal of his office, in the orphans' court of the county; and upon the docketing thereof, an execution may be issued in the name of the commonwealth, to levy the amount of the said bill, in like manner as executions may issue out of the orphans' court to enforce pay- ment of decrees of that court for the payment of money. Note. — This is Section 38 of the Act of March 15, 1832, 4 Purd. 4081, which was new in that act. In the second line, "or register's court" is omitted after "register." In line 6 "orphans' court" is substituted for "common pleas," it seem- ing more appropriate that the remedy should be in the former court. 289. REGISTER TO COLLECT FIFTY CENTS FOR USE OF COMMONWEALTH. SiJCTiON 24. On the probate of any will, and the granting of letters testamentary thereon, also on the granting of any letters of administration, every register shall demand and receive for the use of the commonwealth, in each case, the sum of one dollar} lAs changed from "fifty cents" by Act of April 16, 1921 (P. L. 94). REGISTER OF WILLS ACT— Sections 24-25-26 197 Note. — This is Section 36 of the Act of March 15, 1832, 4 Purd. 4081, which was stated by the Commissioners to have been derived from Section 5 of the Act of April 6, 1830, P. L. 272. The latter section is printed in 4 Purd. 4595. The repeal of Section 5 of the Act of 1830 is recommended. 290. SHORT TITLE. Section 25. This act shall be known and may be cited as the Register of Wills Act of 1917. 291. REPEALER. Section 26. The following acts and parts of acts of assembly are hereby repealed as respectively indicated. The repeal of the first section of an act shall not repeal the enacting clause. Sections i, 2, 5 and 8 of an act entitled "An act concerning the probates of written and nuncupative wills, and for confirming de- vises of lands," passed 1705, i Sm. L. 33, absolutely. Sections 14, 15 and 16 of an act entitled "An act for establish- ing orphans' courts," passed March 27, 1713, i Sm. L. 81, abso- lutely. An act entitled "An act for establishing in the city of Philadel- phia, and in each county of this state, an office for the probate and registering of wills, and granting letters of administration, and an office for the recording of deeds," passed March 14, 1777, i Sm. L. 443, in so far as it relates to registers of wills. Section 5 of an act entitled "An act to confer on certain asso- ciations of the citizens of this commonwealth the powers and im- munities of corporations, or bodies politic in law," passed April 6, 1791, 3 Sm. ly. 20, absolutely. Section 2 of an act entitled "A supplement to the act, entitled 'An act to establish the judicial courts of this commonwealth, in conformity to the alterations and amendments in the Constitu- tion,' " passed September 30, 1791, 3 Sm. L. 58, absolutely. Section 5 of an act entitled "An act for the levy and collection of taxes upon proceedings in courts, and in the offices of register and recorder, and for other purposes," approved April 6, 1830, P. L. 272, absolutely. Sections i to 5, inclusive, 7 to 13, inclusive, 17, 25, 31, 32, 36, 38, 39, 42 and 43 of an act entitled "An act relating to registers and registers' courts," approved March 15, 1832, P. L. 135, abso- lutely. 198 REGISTER OF WILLS ACT— Ssction 26 Section 10 of an act entitled "An act supplementary to an act passed the twenty-ninth day of March, one thousand eight hundred and thirty-two, entitled 'An act relating to orphans' courts,' and relating to contracts of decedents and escheats in certain cases, and relative to the district court of the City and County of Phila- delphia, and to registers of wills," approved April 3, 185 1, P. L. 305, absolutely. Sections 4 and 5 of an act entitled "An act for the preservation of the records of the courts,'' approved April 19, 1856, P. L. 458, absolutely. Section 7 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, absolutely. An act entitled "An act relating to the fees and official bond of the register of wills in counties wherein separate orphans' courts are or may be hereafter established," approved March 24, 1877, P. L. 37, absolutely. An act entitled "An act to provide for the recording of inven- tories and appraisements of decedents' estates by the register of wills," approved June 24, 1885, P. L. 155, absolutely. An act entitled "An act to authorize registers of wills and or- phans' courts to require security for costs, and to apportion costs in cases of caveats and appeals," approved June 6, 1887, P. L. 359. absolutely. An act entitled "An act to provide for the recording of exem- plifications of wills relating to real estate in the office of the reg- ister of wills for any county of this commonwealth, in which said real estate is situate, and giving to the records of such exempli- fications the same effect as the original wills or their duly certified copies or their records," approved April 23, 1889, P. L. 48, abso- lutely. An act entitled "An act requiring all public records within this commonwealth to be kept in the English language," approved May 31, 1893, P. L. 188, in so far as it relates to wills and other in- struments offered for probate or recording in the office of the register of wills. An act entitled "An act amending section seven of an act, en- titled 'An act for the greater certainty of title and more secure enjoyments of real estate,' approved twenty-second day of April, Anno Domini one thousand eight hundred and fifty-six, relating REGISTER OF WILLS ACT— Suction 26 199 to the time when the probate or refusal to probate a will shall be conclusive as to realty," approved June 25, 1895, P. L. 305, abso- lutely. An act entitled "An act authorizing appeals to orphans' courts from decisions of registers of wills, granting issues deviswuit vel non in cases of contested wills," approved February 28, 1905, P. L. 26, absolutely. An act entitled "An act providing that the last will of any de- cedent, to be effective against bona fide conveyances or mort- gages of the real or personal estate of the decedent, must be offered for probate within three years from the date of the death of the testator, or before the date of the recording of such conveyance or mortgage," approved April i, 1909, P. L. 79, absolutely. An act entitled, "An act to amend the second section of an act, approved the twenty-fourth day of March, Anno Domini one thousand eight hundred and seventy-seven, entitled 'An act relat- ing to the fees and official bond of the register of wills, in counties wherein separate orphans' courts are or may be hereafter estab- lished,' by removing the restriction as to population of the coun- ties affected by the act," approved April 27, 191 1, P. L. 87, abso- lutely. 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 INTESTATE ACT of June 7, 1917 (P. L. 429). PRELIMINARY NOTE BY COMMISSION In this revised act, the Commissioners have followed the phrase- ology of the existing statutes in accordance with their resolution to make, as a general rule, only such verbal changes as might be necessary where a substantive change of the law is intended. It is well at this point to note two important changes which af- fect the entire act. The first is that the same scheme of inheritance is provided for both real and personal estate, thus ignoring the distinction that exists at present by which the interests of the sur- viving spouse or of parents are in some cases restricted to a life interest in the realty while their interests in the personal estate are absolute. The reason for this distinction is purely historical ; the common law rules of inheritance of real estate came through the feudal law, while the statutes of distribution of personal estate were de- rived through the Roman law, and were in England administered by the Ecclesiastical Courts and the Court of Chancery. Many of the resulting distinctions have long since been abolished in this commonwealth, and it is now suggested that a further step be taken, in thus providing that the interests of those entitled shall be in fee in both realty and personalty. However venerable the origin of the present law may have been, the Commissioners think that the difference has now become purely arbitrary and produces an artificial inequality. It is a pure accident whether at the moment of a man's death his property consists of lands or stocks and bonds, of ground rents issuing out of land or mortgages secured upon lands; all these are merely forms of property and the rights of heirs and next of kin should not be affected by matters of accident rather than of substance. Land, owing chiefly to its characteristic of immobility, may properly, and indeed sometimes must, be sub- ject to different rules from personalty in such matters as the method of taxation or conveyance, the regulation of liens, mort- gages or pledges; but in such cases there is an inherent reason for the difference, which finds no place in a logical plan of inher- 200 INTESTATE ACT 20I itance or succession. We, therefore, recommend to the legislature that all property where the owner dies intestate shall descend or be distributed according to one system. This, in the words of a distinguished legal scholar, Frederic W. Maitland, "is what a civil- ized jurisprudence requires, and here as always scientific juris- prudence is on the side of convenience and common sense." The second important change which the Commissioners recom- mend is that the reciprocal rights of husband and wife in each other's intestate estate should be the same. Under the present law, the widow, if there be no issue, takes one-half of the real estate for life and one-half of the personal estate absolutely, and in addi- tion, under the recent Act of April i, 1909, P. L. 87, 5 Stew. Purd. 6476, five thousand dollars in real or personal estate as she may elect, before the division of the remainder of the estate. If there be issue, the widow takes one-third of the real estate for life and one-third of the personal estate absolutely. The surviving husband, on the other hand, if there be no issue takes all his wife's real estate for life as tenant by the curtesy, and all the personal estate absolutely, while if there be issue the husband divides the personal estate with the children share and share alike, that is he takes a child's share. These provisions are the resultant of the gradual growth and changes in our law during many years and their complexity is in practice greatly increased by the different rights given to the surviving husband and wife in electing to take against the will of the other; the wife having the right to take the same share of her husband's estate, real and personal, as she would have taken had he died intestate; while the surviving hus- band, in case he elects to take against his wife's will, has not the right to take as in cases of intestacy, but may choose either to take the real estate as tenant by the curtesy or the same share of her estate as she might take of his estate, in case she took against his will. There is no apparent reason why the reciprocal rights of husband and wife in each other's intestate estate should be so dif- ferent, and the Commissioners are of opinion that they should be simplified ; that there should be given to the surviving husband or wife, in case of intestacy, the same right in the estate, real and per- sonal, of the other, and the same right in cases of testacy, to take under the intestate law. The Commissioners have embodied such a provision in their draft of the new Wills Act submitted herewith, and it is suggested that these changes will reduce our law upon the subject to a symmetrical and harmonious plan. 202 INTESTATE ACT— CoNTENts While they are not so fundamental, other changes are recom- mended which deserve particular notice. In Section i (a), it is provided that where an intestate leaves a surviving spouse and issue one child only, or descendants of one child, the spouse shall take one-half instead of one-third of the estate. In Section 2, the special allowance of $5,000 to a surviving spouse where there is no issue is restricted to the case of actual intestacy, and no longer applies when the surviving spouse elects to take against the will. The procedure for the appraisement and setting apart of the property specially allowed is defined with greater exactness than under existing laws. In Section 4, the rights of a surviving husband in remainder estates vested in his deceased wife are extended so as to be uni- form with those of a surviving wife. In Section 9, the distinction in the inheritance of real estate be- tween the whole and half blood is abolished ; and in Section 13 the rule at present surviving in some cases as to the restriction of in- heritance to persons of the blood of the first purchaser is likewise abolished. In Section 15, the right of inheritance in cases of illegitimacy is extended to the maternal grandfather, and illegitimate children are legitimated by the marriage of their parents without the pres- ent requirement of cohabitation. In Section 16, the rights of adopted children are more accurately defined in accordance with the present legislative policy. In Section 23, it is provided that no murderer shall inherit from the person whom he has killed — the present law on this subject seeming to the Commissioners to be opposed to the sentiments of morality. Both this and the proposed Wills Act are made operative only upon the estates of persons dying on or after a day named, sub- sequent to the approval of the acts. TABLE OF CONTENTS. 1917 Section Pamphlet Number Laws Herein The Intestate Act 429 292 Section i. Surviving spouse and issue, 431 293 (a) Surviving spouse and one child, or de- scendants of one child, 294 INTESTATE ACT-Contents 203 1917 Section Pamphlet Number Laws Herein (b) Surviving spouse and more than one child, or descendants of more than one child 29s Section 2. Surviving spouse and no issue, but col- lateral heirs, 296 (a) Allowance of five thousand dollars and one-half of remaining estate, 296 (b) Appraisement and appraisers, 432 297 (c) Confirmation of appraisement, 298 (d) Allowance out of real estate valued at more than five thousand dollars, 299 (e) Title to such real estate, 433 300 (f) Rents, income, interest, and dividends of property set apart, 301 (g) Real estate in another county, 301 (h) Certified copy of decree to be recorded and registered, 434 303 Section 3. Widow's share in lieu of dower; share in lands aliened by husband, and in es- tate in remainder, 303 Section 4. Surviving husband's share in lieu of curtesy; share in estate in remainder, 305 Section 5. Husband's right barred by refusal to provide for wife, or by desertion, 435 306 Section 6. Widow's right barred by desertion, . . . 307 Section 7. Issue, 308 (a) Children, 309 (b) Grandchildren, 310 (c) Descendants in same degree of consan- guinity, 311 (d) Descendants in different degrees of con- sanguinity, 312 1. Shares of children 313 2. Shares of grandchildren 314 3. Issue taking by representation, .... 436 315 Section 8. Parents 316 Section 9. Collateral heirs, 317 (a) Brothers and sisters, 318 (b) Nephews and nieces, 319 (c) Children of deceased brothers or sisters, taking by representation, 320 (d) Descendants of brothers or sisters, 321 Section 10. Next of kin A,Z1 322 Section 11. Limits of representation 323 Section 12. Grandparents, and issue of deceased grandparents, 324 204 INTESTATE ACT— Contents 1917 Pamphlet Laws (a) Children of deceased grandparent, (b) Grandchildren of deceased grandparent, (c) Descendants of deceased grandparent in same degree of consanguinity, 438 (d) Descendants of deceased grandparent in different degrees of consanguinity, 1. Children of deceased grandparent, 2. Grandchildren of deceased grand- parent, 3. Issue taking by representation, . . . Section 13. Rule as to blood of first purchaser abrogated, Section 14. Foregoing provisions apply only to legiti- mates, Section 15. Illegitimates, 439 (a) Inheritance as between mother, grand- parents, and child (b) Inheritance as between children, legiti- mate and illegitimate, (c) Legitimation as to mother, but not as to father (d) Legitimation by marriage of parents Section 16. Adopted children (a) Inheritance as between adopted person and adopting parents (b) Inheritance as between adopted person and adoptive relatives ; natural kindred of adopted person excluded Section 17. Surviving spouse and no known heirs or kindred 44" (a) Rights of surviving spouse (b) Procedure, Section 18. Estates passing to persons entitled under the act 441 Section 19. Persons in same degree of consanguinity take equally Section 20. Posthumous children Section 21. Limitation of claims, Section 22. Advancements, 442 Section 23. Person adjudged guilty of murder not to inherit from murdered person, Section 24. Escheat, Section 25. Act not to apply to personal estate of in- testate dying domiciled outside the com- monwealth, Section 26. Short title section Section 27. When act shall go into operation, Section 28. Repealer, 442-7 Section Number Herein 325 326 327 328 329 330 331 332 333 334 334 335 336 337 338 338 339 340 340 341 342 343 344 345 347 348 349 350 351 352 INTESTATE ACT-Sbction i (a) 205 292. TITLE. An Act. Relating to the descent and distribution of the real and personal property of persons dying intestate, and to provide for the record- ing and registering of the decrees of the orphans' court in con- nection therewith and the fees therefor. "The Act of 1917 was the result of the efforts of a commission, ap- pointed by the Governor of the Commonwealth, to codify, or assemble into one group, the numerous provisions on our statute books dealing with the intestate law and kindred matters ; and the commission itself framed the act. The bill thus prepared was passed by the legislature without the slightest deviation from the recommendations of its draftsmen, so far as the portions having any bearing on this case are concerned ; and, when the historical development of this branch of our statutory law is considered, together with the whole structure of the present statute, it is apparent that no radical changes or departures from preexisting rules of inheritance were intended. On the contrary, the mischief to be cor- rected lay in the fact that there were too many acts covering the subject- matter, not that the rules there laid down were either wroiig or undesir- able, and the remedy intended, at least as to the sections here involved (see 322, 323, 324 and 343 infra.), was simply their codification, or putting together, in a single act. Of course, this combination of various legisla- tive enactments into one statute necessitated the insertion of certain in- troductory parts, and, as already said, Section 10 is of that nature ; it must be taken with the other parts, to which it is introductory, in order to ascertain its true meaning." Moschzisker, C. J. in opinion January 3, 1922, in Miles' Est., S. C. October Term, 1921, Nos. 61 and 62 (not yet reported). 293. SURVIVING SPOUSE AND ISSUE. Section i. Be it enacted by the Senate and House of Repre- sentatives of the Commonwealth of Pennsylvania in General As- sembly met, and it is hereby enacted by the authority of the same. That the real and personal estate of a decedent, whether male or female, remaining after payment of all just debts and legal charges, which shall not have been sold, or disposed of by will, or other- wise limited by marriage settlement, shall be divided and enjoyed as follows : namely, — 294. SURVIVING SPOUSE AND ONE CHILD OR DE- SCENDANTS OF ONE CHILD. (c) Where such intestate shall leave a spouse surviving and one child only, or shall leave a spouse surviving and no children 2o6 INTESTATE ACT— Section i (o) but shall leave descendants of one deceased child, the spouse shall be entitled to one-half part of the real and personal estate. Note. — The introductory paragraph is copied from Section i of the Act of April 8, 1833, P. L. 31S, 2 Purd. 1994, which was amended by the Act of April I, 1909, P. L. 87, 5 Purd. 6476. Clause (o) is clause i of the same section, amended so as to make the rights of husband and wife the same and to eliminate the distinction between real and personal prop- erty in this regard, and to give the surviving spouse one-half of the estate under the circumstances described. Section i of the Act of 1833 was derived from Sections 3 and 4 of the Act of April 19, 1794, 3 Sm. L. 143. The earlier acts provided, in sub- stance, as follows: Act of 1683 (iioth Law): "That the estate of an intestate shall go to his wife, his child, or children." Act of 1684 (i72d Law) : "One-third of the personal estate shall go to the wife; and one- third of the lands and tenements during her natural life; * * * and in case the intestate leaves no child, then half the personal estate to the widow, and the moiety of the real estate during her natural life." Act of 1693 : "One-third to the wife, the residue among his children ♦ * * ; and if there be no children nor legal representatives of them, one moiety shall be allotted to the wife. * * * Provided, That where testators', or intestates' personal estates are sufficient to pay all debts," and so forth, "then the real estate to be distributed in manner following, * * * one- third of all intestates' lands to the wife for life." Act of 1705 (3 Sm. L. 156 n.) : "One-third part of the said surplusage to the wife of the in- testate. * * * And in case there be no children, nor any legal represen- tatives of them, then one moiety of the said estate to be allotted to the wife of the intestate." Section 8 of the Act of 1705 provided: "That the surplusage or remain- ing part of the intestate's lands, tenements and hereditaments * * * shall be divided between the intestate's widow and children, or the survivors of them, who shall equally inherit and make partition, as tenants in com- mon may or can do. But if the intestate leaves a widow and no child, then such widow or relict shall inherit one moiety or half part of the said lands and tenements." Section 10 of the Act of 1705 provided: "That nothing in this act con- tained shall give any widow a right or claim to any part of such lands or tenements, for her dower or thirds, as shall yield yearly rents, or profits, whereof her husband died seized, for any longer time than the term of her natural life ; which dower she shall hold as tenants in dower do in England." Section 2 of the Act of March 23, 1764 (3 Sm. L. 159 n.) provided: "That the shares and purparts of intestates' real estates which by the act for settling intestates' estates aforesaid are given to widows, shall be con- strued and understood to be estates for their natural lives, respectively, and not otherwise." Section s of the Act of April 4, 1797 (3 Sm. L. 296) provided: "That where any woman shall hereafter die intestate" leaving a husband, "he shall take the whole personal estate, and the real estate shall descend INTESTATE ACT— Sections i (a), (6)-2 (a) 207 and go in the same manner as is directed in the case of men dying intestate, saving to the husband his right as tenant, by the curtesy." In this section, the Commissioners have introduced a change which they consider a much needed improvement. The Act of 1833 provides for two cases : first, where there is no issue, and second, where there is issue. This clause provides for the case where there is issue one child, or the descendants of one child only; in which case the surviving spouse will take not one-third, but one-half of the estate. It seems unjust where a man dies leaving a widow and one child, often a minor, that the single child should receive twice as much as its mother, and many cases of hardship have been observed in practice. In Rowan's Estate, 132 Pa. 299, an adopted child was thus held entitled to two-thirds of the estate as against the widow. In this section and throughout the act the Commissioners have used the words, "surviving spouse,'' in place of "widow or surviving husband," and the like, believing that the use of one word is preferable when there can be no mistake as to the meaning, and where the interests of widow and husband are made the same, as it is now suggested they should be. "The Intestate Act of June 7, 1917, P. L. 429, places the husband and wife on a parity as to inheritance from each other." Per Williams, J., in Caldwell v. Caldwell, 70 Super. 332, p. 336. 295. SURVIVING SPOUSE AND MORE THAN ONE CHILD OR DESCENDANTS OF MORE THAN ONE CHILD. (b) Where such intestate shall leave a spouse surviving and more than one child, or one child and the descendants of a deceased child or children, or the descendants of more than one deceased child, the surviving spouse shall be entitled to one-third part of the real and personal estate. Note. — This is a new clause, further amending clause i of Section i, of the Act of 1833, along the same lines. See Commonwealth v. Rife, 50 Pa. C. C. 22. 296. SURVIVING SPOUSE AND NO ISSUE BUT COL- LATERAL HEIRS,— ALLOWANCE OF $5,000 AND ONE-HALF OF REMAINING ESTATE. Section 2. (a) Where such intestate shall leave a spouse surviv- ing and other kindred, but no issue, the surviving spouse shall be entitled to the real or personal estate, or both, to the aggregate value of five thousand dollars, in addition, in the case of a widow, to the widow's exemption as allowed by law ; and, if such estate shall exceed in value the sum of five thousand dollars, the sur- 2o8 INTESTATE ACT— Section 2 (o) viving spouse shall be entitled to the sum of five thousand dollars absolutely, to be chosen by him or her from real or personal es- tate, or both, and in addition thereto shall be entitled to one-half part of the remaining real and personal estate : Provided, That the provisions of this clause as to said five thousand dollars in value* shall apply only to cases of actual intestacy of husband or wife, entire or partial, and not to cases where the surviving spouse shall elect to take against the will of the deceased spouse. Note. — This is clause 11 of Section i of the Act of 1833, as amended by the Acts of April i, 1909, P. L. 87, 5 Purd. 6476, and July 21, 1913, P. L. 87s, s Purd. 6478, further amended so as to apply expressly to hus- band as well as wife, so as to be limited to cases of actual intestacy, and so as to make the estate of the surviving spouse absolute in real as well as personal property. The words "collateral heirs" are omitted in the second line, as they ex- clude parents and grandparents. In accordance with their view that the interests of the surviving hus- band and wife should be the same, the Commissioners have made the pro- visions of the Act of April i, 1909, apply equally to both cases. The spe- cial allowance of $S,ooo where there is no issue, conferred upon the widow by this act, appears to have been favorably considered during the time it has been in operation, and no change in the amount is suggested. The Act of April i, 1909, was most probably not intended by the legisla- ture to apply to the case of a husband who should elect to take against the will of his wife (there being no issue), but this result followed logically from a consideration and comparison of the Acts of April 8, 1833, P. L. 31S, April II, 1848, Section 11, P. L. S36, and May 4, 1835, Section i, P. L. 430, as shown in Buckland's Estate, 239 Pa. 608 ; Moore's Estate, 50 Super. Ct. 76. A result of the Act of 1909 in connection with prior legislation is that a married person having no issue whose estate amounts to $5,000 or less cannot make any testamentary disposition of his or her estate. The Com- missioners recommend in this section that the special allowance of 1909 shall be made only in cases of actual intestacy, and not where the surviv- ing spouse elects to take against the will of the deceased spouse. See Shoch's Est, 271 Pa. 158 afif'g. 29 Dist. 163. Under the Intestate Act of June 7, 1917, P. L. 429, Section 2 (a), when a husband dies intestate leaving a widow, but no issue, the share to which the widow becomes entitled vests in her absolutely as an inheritance, and on the death of the widow, intestate, passes to her next of kin. In such case her next of kin are entitled to have $5,000 in value of the husband's estate appraised and set apart for their benefit, although no claim therefor was made by the widow in her lifetime. Nolan's Est., 68 P. L. J. 588, 21 Lack. 239, 2 Erie 211, 9 Lehigh 57. ■^Amended by Act of July 11, 1917 (P. L. 403). INTESTATE ACT— Section 2 (a) 209 The $5,000 preference allowed to a widow under the Act of June 7, 1917, P. L. 429 (Intestate Act), is a vested interest in her at the death of her husband, and this she cannot be deprived of except by her own act. If the widow dies without having made any demand for it in her lifetime, her next of kin are entitled to claim it after her death, and the claim may be made for them by her personal representative. Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255. "The controlling distinction between the law relating to the $500 ex- emption and the $S,ooo allowed to widows under the Act of 1917 is that the $5,000 worth of property, real or personal, vests in the widow at the death of her husband, and does not require any action on her part to se- cure the same. "The $500 exemption does not vest at the death of the husband, but only when she has elected to exercise the right, and this her executor or ad- ministrator cannot do for her after her death." Per Maxwell, P. J., in Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255. (Note. — It would seem to be improper practice to join in one petition a claim for an allowance of $5,000 and a claim for the exemption of $500. —Editor.) A common law marriage with decedent duly proven to the satisfaction of the court will enable the widow to successfully claim the allowance. Wandall's Est., 29 Dist. 1132. A mere irregularity in a divorce proceeding, rendering the decree voidable, but not void, especially under attack by one not a party, will not deprive the widow of her right to the allowance. McDonald's Est., 268 Pa. 486, 112 Atl. 98, reversing i Wash. lo, 49 Pa. C. C. 423. A widow electing against her deceased husband's will is excluded from the benefits of the special allowance of $5,000 under Section 2 (a) of the Intestate Act of June 7, 1917, P. L. 429, as amended by the Act of July 11, 1917. P. L. 755- The plain intention of these statutes to exclude from the benefit of the special allowance a spouse electing to take against the will of the de- ceased spouse prevails against the less certain provision of Section 23 of the Wills Act of June 7, 1917, P. L. 403. Section 2 (o) of the Intestate Act and its amendment of July 11, 1917, are not in conflict with Art. Ill, Sec. 3, of the Constitution, as the title of the Intestate Act is sufficiently germane to the body of the act. Col- lom's Est., 47 Pa. C. C. 434, 28 Dist 503. See, also, Pfanen Schmidt's Est., 35 Montg. 135 ; Langerwisch's Est., 47 Pa. C. C. 121, 28 Dist. 470, 8 Leh. 147, affirmed in 267 Pa. 319, no Atl. 165. Where a man dies after the passage of the Act of July 11, 1917, P. L. 755, which amended the Act of June 7, 1917, P. L. 429, leaving to survive him a widow and collateral kin, and leaving a will by which he directed his estate to be distributed in accordance with the intestate laws, and by which he directed his executrix, the widow, to convert into money all his real and personal property, and the widow elects to take under the will, the court will refuse the widow's petition for the appointment of apprais- ers to set apart real and personal property to the value of $5,000; but the dismissal of the petition will be without prejudice to the right of the 14 2IO INTESTATE ACT— Section 2 (o) widow to enforce her claim by taking credit therefor in the settlement of her account as executrix, and urging it upon final distribution. Such a case is not one of intestacy, and therefore the Acts of June 7, 1917, P. L. 429, and July 11, 1917, P. L. 755, have no application, since they relate solely to the descent and distribution of the real and personal property of persons dying intestate. Where, as here, the widow takes in money, no appraisement is necessary. Carrell's Estate, 264 Pa. 140. Under subdivision (a) as amended June II, 1917, P. L. 755, and sub- divisions (b) and (d) of Section 2 of the Intestate Act of June 7, 1917, P. L. 429, the collateral heirs cannot control in their own interest the elec- tion of a spouse to take certain property for his or her special allowance of $5,000. "Nowhere in the act is there any restriction upon the freedom of its beneficiary to choose the property of the estate he or she will take in sat- isfaction of this portion of the inheritance it provides, but on the contrary, the act expressly directs that the portion shall 'be chosen by him or her from real or personal estate, or both.' In a case under the Widow's Ex- emption Act of 1851, it was ruled that a creditor of an insolvent could not control the widow's election to save himself from loss : Graves's Estate, 134 Pa. 377. A fortiori, the collateral heirs who are mere volunteers, can- not control in their own interest the election of the favored heir under the Intestate Act." Barnett, P. J., in Troutman's Est., 30 Dist. 708. Where a widow makes her will, marries a second time, and dies leaving in existence the will made prior to her second marriage, her surviving hus- band is entitled under the Wills Act of June 7, 1917, P. L. 403, and the Intestate Act of June 7, 1917, P. L. 429, as amended by the Act of July II, 1917, P. L. 755, to the allowance of $5,000 provided by the Intestate Act. By her remarriage her will, as to her second husband, was annulled, and there was an actual intestacy as to him. Shestack's Estate, 267 Pa. 115, no Atl. 166. Intestacy may result not merely from the testator's failure to make a will at all, or from his failure to dispose in his will of all his estate, but also from his failure to make a legal and effectual disposition of either his entire estate or a portion of it. Where a charitable bequest of the residuary estate is void under the Wills Act of June 7, 1917, Sec. 6, P. L. 403, because of the death of the testator within thirty days after making the will, there is an actual, al- though partial, intestacy within the meaning of the Intestate Act of June 7, 1917, Sec. 2 (a), P. L. 429, as amended by the Act of July 11, 1917, P. L- 755; which gives the surviving spouse of an intestate (there being no issue) a special allowance of $5,000 out of the real or personal estate, in addition to the one-half of the remaining estate. McNulty's Estate, 29 Dist. 709. On a petition for the widow's claim for $5,000 under the Intestate Act of July II, 1917, Section 2, P. L. 755, which she claimed from the real es- tate left by the decedent, consisting of two properties, appraisers were appointed and appraised the properties at $15,000. One of the next of kin filed exceptions to this appraisement, and a bona fide written offer of $20,000 was made for the properties, and it appeared that the property INTESTATE ACT— Section 2 (o) 211 next door, consisting of a property similar to one of these, had been sold for $15,000. Under these facts the court refused to approve the appraise- ment and ordered the appraisers to make a reappraiseraent. Brady's Es- tate, 29 Dist. 24. The constitutionaHty of the amending Act of July 11, 1917, having been attacked, the Supreme Court, in a per curiam opinion, affirming Langer- wisch's Estate, supra, said : "Diedrich Langerwisch died testate February 3, 1919, leaving a widow, but no issue. She elected to take against his will, and claimed such interest in his real and personal estate as would have passed to her if he had died intestate. Her claim, disallowed by the court below, was for $S,ooo out of her husband's real or personal estate, in addition to the exemption al- lowed her by law. It was disallowed, because Section 2, clause (o), of the Act of June 7, 1917, P. L. 429, as amended by the Act of July 11, 1917, P- L. 755, provides the 'clause as to said five thousand dollars in value shall apply only to cases of actual intestacy of husband or wife.' On this appeal the sole contention of the appellant is that the amending act is unconstitutional, in that it violates Section 3 and Section 7, clause 16, of Article III, of the Constitution. It is entitled, 'An act to amend Section two clause (a) of the Intestate Act of one thousand nine hundred and seventeen, approved June seventh, one thousand nine hundred and seven- teen, by inserting in the proviso to said clause the words 'as to said five thousand dollars in value.' This title contains but one subject, which is 'clearly expressed' and the act is a general law, not a local or special one, 'changing the law of descent or succession.' This is too plain for dis- cussion." Langerwisch's Est., 267 Pa. 319; no Atl. 165. The fact that the Orphans' Court Partition Act of 1917 (P. L. 338), in Sections 15, 18 and 29 appears to concede to the widow a lesser estate in lands of the decedent than that conferred by the Intestate Act of 1917 (P. L. 431), approved the same day, does not in any way affect the quantum of the estate taken by the widow under the latter act. If there were any conflict between the two acts, the Intestate act must govern as to the interest taken, the Partition Act having to do merely with procedure, and the enforcement of rights conferred by the Intestate Act. But the alleged conflict is only apparent, and the references in the Partition Act to the life estate of the widow are evidently intended to refer to estates of persons dying prior to the Intestate Act of 1917. "Under Section 2 (o) of the Intestate Act of 1917, P. L. 431, the widow is apparently entitled in fee to an undivided one-half part or interest in decedent's real estate; while Sections 15, 18 and 29 of the Orphans' Court Partition Act of 1917, P. L. 337 (approved the same day as the last men- tioned statute) appear to concede to the widow but a lesser share in said lands, to wit, a life estate only; the respondent in its answer directing our special attention to certain language appearing in said last named act, to wit, in Section 15, the words 'where by existing laws the widow is en- titled to a dower of one-third in the real estate and * * * where by ex- isting laws the widow is entitled to a dower of one-half in the real es- tate,' and in Section 18, the words 'should the widow of the decedent be 212 INTESTATE ACT— Section 2 (o) ♦ * * entitled to a life estate in one-half or one-third of the real estate under the intestate laws, or should such widow elect to take against the will of the decedent and thereby be entitled to such a life estate' and in Section 29, the words 'if there be a widow entitled to a life interest in such real estate under the intestate laws, or should such widow elect to take against the will and thereby be entitled to such life estate.' " "As the decedent, William S. Dodd, whose estate is before us, died on September 19, 1920, to wit, long after December 31, 1917, the date upon which the Wills Act of 1917, P. L. 403, and the Intestate Act of 1917, P. L. 429, both became operative, this estate, its administration and devolu- tion, are therefore manifestly subject to the control of these two statutes. We are, therefore, clearly of the opinion that the petitioner, as widow of the decedent, upon her electing to take against her husband's will became, under Section 23 of the said Wills Act of 1917, P. L. 403, and under Sec- tion 2 (a) of the said Intestate Act of 1917, P. L. 429, entitled to and in- vested with, an undivided one-half part, share or interest in fee simple, in said decedent's real estate ; and that the cited portions of the said Orphans' Court Partition Act of 1917, P. L,. 337 (iS, 18 and 29), do not and are not designed to diminish such fee simple share, part or interest so prescribed for the widow in and by the said Wills Act and Intestate Act." * * * "It is the intestate laws of the commonwealth which de- termine all matters pertaining to the descent and inheritance of estates of decedents ; fixing the character, kind, quantity and amount of the inter- ests of shares in decedents' real and personal property which shall pass to and vest in surviving spouses and kinsmen. The Partition Acts merely provide the method for enforcing the rights so conferred by the Intestate Acts. Hence, it follows that on general principles, were there indeed a clash or conflict between the provisions of the Intestate Act of 1917, P. L. 429, and of the Orphans' Court Partition Act of 1917, P. L. 337, on a mat- ter of quantity, size, amount of shares or interests of a decedent's estate to descend or vest, the latter statute (merely prescribing procedure) would, of necessity yield to the former statute as to matters so lying exclusively within the scope and province of the said Intestate Act. "However, the respondent, in its answer, has not directed our attention to or shown that there really exists any clash or conflict between the two statutes under consideration. By its express terms, the Intestate Act of 1917, P. L. 429, becoming operative and effective on December 31, 1917, is made to apply to estates, real and personal of all persons dying intestate on or after the said day so designated ; expressly providing that as to the estates, real and personal, of persons dying before the day designated, the existing laws should remain in full force and effect. Under Section i of the Act of April 8, 1833, P. L. 316, which applies to and controls the devolution of estates of intestates dying before December 31, 1917, a surviving widow was entitled to certain interests in her husband's real estate for life only, to wit, so-called statutory dower, i. e., a life estate in a third or a half part of such lands, depending on whether the decedent had left any children or issue. The Intestate Act of 1917, P. L. 429, gives the widow of an intestate dying on or after December 31, 1917, not statu- tory dower as under the old law, but certain interests in fee simple in the decedent's real estate, to wit, an undivided one-third part thereof or an INTESTATE ACT— Section 2(a), (6) 213 undivided half part thereof or more, depending on whether or not the decedent leaves children or issue, and if so, the number thereof. The Orphans' Court Partition Act had to be drafted by the lawmakers to meet the circumstances and requirements of the- estates of all intestates, to wit, those dying before, as well as those dying after December 31, 1917; for such act was to apply to estates of decedents irrespective of the dates of their respective deaths. Now, as to widows of intestates dying after De- cember 31, 1917, no special mention of the shares of such widows therein was in such act necessary ; for, thereunder surviving spouses taking shares in fee, such shares are of precisely the same character and quality as, and, therefore, fall in the same category with, the other shares and inter- ests vesting in the decedent's descendants or collateral kinsmen. The said act, however, had to make and preserve special provision for the statutory dower of widows of husbands dying prior to December 31, 1917, which circumstance accounts for and explains the use of the pointed out lan- guage appearing in Sections 15, i8 and 29 of the said act. The purpose and necessity for such provisions and language is manifest, to wit, being designed and required to provide for the life interests of widows in es- tates of intestates dying before December 31, 1917, and in estates of tes- tates dying before said date, where the widows elect to take against the wills of their respective husbands. Accordingly we reach the conclusion that there exists no clash nor conflict between the provisions of the Or- phans' Court Act of 1917, P. L. 337, and the Intestate Act of 1917, P. L. 429; at least as to any matter to which the petitioner has directed our atten- tion. It is well to observe, moreover, in passing that did indeed such conflict exist between the provisions of the two statutes under consid- eration, the provisions of the Orphans' Court Partition Act of 1917, P. L. 337, aside from its being a mere possessory action, would, for another important reason, be legally forced to yield to the pertinent provisions of the Intestate Act of 1917, P. L. 429, as to all matters within the scope of the last mentioned statute; for, the latter act, although approved the same day as the former act became operative long after the said Orphans' Court Partition Act had become law ; so that the Intestate Act thus later be- coming operative, would automatically and of necessity supersede such provisions of the Partition Act, if any, in conflict with the provisions of the said Intestate Act." Dodd's Estate, i Wash. 236. 297. APPRAISEMENT AND APPRAISERS. (b) The appraisement and setting apart of the said five thou- sand dollars in value of property shall be made by two appraisers, who shall be appointed by the orphans' court having jurisdiction of the accounts of the personal representatives of such intestate, and shall be sworn or affirmed to appraise the property which the surviving spouse shall choose under the provisions of this act. Each of such appraisers shall receive, as compensation for each day or fraction thereof necessarily employed in the performance 214 INTESTATE ACT-Section 2 (6) of their duties, the sum of two dollars and fifty cents, and such additional amount as may be allowed by said court. Note.— This is founded on the Act of April i, 1909, P. L. 87, 5 Purd. 6476, as amended by the Act of July 21, 1913, P. L. 875, S Purd. 6478, fur- ther amended so as to provide for the appointment by the orphans' court of two appraisers, for the swearing or affirming of such appraisers, and for their compensation. The Commissioners have concluded that the appraisement of the prop- erty chosen by the surviving spouse to be awarded under this act should be made by appraisers appointed by the court rather than by the ap- praisers of the "other personal estate," as is now the law. In many cases, where real estate is selected, the regular appraisers are not necessarily qualified to value it, and as the rights of the heirs are involved, it seems best that the appraisers should be formally appointed. In this and other clauses of the act relating to this special allowance, the Commissioners have avoided any reference to the procedure under prior acts of assembly relating to the widow's exemption, which introduced a needless complication in the Act of April i, 1909. See Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255. The orphans' court possesses no jurisdictional authority to appoint ap- praisers to appraise and set aside estate property claimed as and for a $5,- 000 allotment for the surviving spouse of an intestate dying before Decem- ber 31, 1917; the power of the said court being limited and confined to appointing substitute appraisers to take the place of estate appraisers ap- pointed by the personal representatives of the estate but who are unable to act. Hilton's Est., i Wash. 123. Under subdivision (a) as amended June 11, 1917, P. L. 75S, and sub- divisions (6) and ((f) of Section 2 of the Intestate Act of June 7, 1917, P. L. 429, the collateral heirs cannot control in their own interest the elec- tion of a spouse to take certain property for his or her special allowance of $5,000. No appeal is given from the report of the appraisers fixing the value of the property from which a spouse elects to take his or her special al- lowance, and in the absence of fraud or collusion or such clear under- valuation of the property as may suggest fraud or collusion, the valuation fixed by the appraisers will not be interfered with. The mere fact that one of two appraisers was a second cousin of the widow is not ground for setting the appraisement aside. "No appeal is given from the report of the appraisers. They are the tribunal created by the act for the purpose of appraising the property the spouse elects to take under this section, and in the absence of fraud or collusion, or of such clear undervaluation of the property as may suggest fraud or collusion, their valuation should not be interfered with." * * » "The fifth exception is likewise without merit. One of the two apprais- ers was a second cousin of the widow. But in Vandevort's Appeal, 43 Pa. 462, two of the three appraisers were brothers-in-law of the widow, INTESTATE ACT-Section 2 (6), (c), (d) 215 and it was held by the Supreme Court that 'the mere fact of the relation- ship of two of three appraisers to the decedent or the widow is not enough to avoid their proceedings." Barnett, P. J., in Troutman's Est., 30 Dist. 708. 298. CONFIRMATION OF APPRAISEMENT. (c) Upon due proof of compliance with such requirements as to notice, by advertisement or otherwise, as may be prescribed by the orphans' court by general rule or otherwise, such court may confirm such appraisement and set apart such personal or real es- tate, or both, to the surviving spouse, subject to claims of creditors of the decedent and to the lien of debts of the decedent. Note. — This is a new clause, introduced in order to give the orphans' court express power to set apart property claimed by the surviving spouse, in advance of the distribution of the estate. 299. ALLOWANCE OUT OF REAL ESTATE VALUED AT MORE THAN $5,000. (d) Whenever the surviving spouse of any intestate shall claim the said five thousand dollars in value, or any part thereof, under the provisions of this act, out of real estate left by said intestate, and the real estate appraised cannot be divided so as to set apart the amount so claimed in value without prejudice to or spoiling the whole or any parcel of said real estate, and the appraisers shall appraise and value the same at any sum exceeding the amount so claimed, it shall be lawful for the orphans' court, to which such application shall be made, to confirm such appraisement, and to set apart for the use of the surviving spouse such real estate, condi- tioned, however, that the said surviving spouse shall pay the amount of the valuation or appraisement in excess of the amount so claimed within one year from the date of confirmation of such valuation. If the said surviving spouse shall refuse to take the real estate at such appraisement, or shall fail to make payment as above provided, the court, on application of any person interested, shall direct the executor or administrator to sell the same, and the procedure in such case shall be the same as is provided by law in cases of sales of real estate for the payment of debts of a decedent. Note. — This is Section i of the Act of July 21, 1913, P. L. 872, S Purd. 6478, altered in the following particulars : The language is changed so as to apply to cases where the real estate in question consists of more than one parcel and no single parcel is worth five thousand dollars, but all of them are worth more than that amount. 2i6 INTESTATE ACT-Section 2 (rf), (e), (/) The language is also changed so as to cover cases where part of the five thousand dollars is taken in personal property and the amount claimed out of real estate is therefore less than five thousand dollars. The same change is made in subsequent clauses. The words, "or fails to make payment as above provided," are inserted in the last sentence, also changed so as to provide that the sale shall be made by the executor or administrator, and so as to prescribe the pro- cedure. Under subdivision (o) as amended June 11, 1917, P. L. 7SS, and sub- divisions (6) and (rf) of Section 2 of the Intestate Act of June 7, 1917, P. L. 429, the collateral heirs cannot control in their own interest the election of a spouse to take certain property for his or her special allow- ance of $5,000. "No appeal is given from the report of the appraisers. They are the tribunal created by the act for the purpose of appraising the property the spouse elects to take under this section, and in the absence of fraud or collusion, or of such clear undervaluation of the property as may sug- gest fraud or collusion, their valuation should not be interfered with." "The fifth exception is likewise without merit. One of the two ap- praisers was a second cousin of the widow. But in Vandevort's Appeal, 43 Pa. 462, two of the three appraisers were brothers-in-law of the widow, and it was held by the Supreme Court that 'the mere fact of the relation- ship of two out of three appraisers to the decedent or the widow is not enough to avoid their proceedings." Barnett, P. J., in Troutman's Est., 30 Dist. 708. 300. TITLE TO SUCH REAL ESTATE. (e) The real estate, if taken by the surviving spouse as afore- said, shall vest in him or her and his or her heirs or assigns upon his or her paying the surplus over and above the sum of five thou- sand dollars or such part thereof as may be claimed out of the real estate to the parties entitled thereto. Where the real estate is sold as provided in clause (rf) of this section, the sum of five thousand dollars or such part thereof as may be claimed out of the real estate shall be paid out of the purchase money to the surviving spouse, and the balance, after payment of costs and expenses, shall be distributed to the heirs, or other persons legally entitled thereto. Note. — This is Section 2 of the Act of July 21, 1913, P. L. 872, 5 Purd. 6478, omitting the words, "if the real estate should not be so taken at the appraisement," and substituting a reference to the preceding clause. 301. RENTS, INCOME, INTEREST AND DIVIDENDS OF PROPERTY SET APART. (/) In all cases where the appraisement of property, real or per- sonal or both, is confirmed and the property set apart to the sur- INTESTATE ACT— Section 2 (/), (g) 217 viving spouse under the provisions of this section, said surviving spouse shall be entitled to receive for his or her own use the net rents, income, interest and dividends thereof from the date of the death of such intestate. Where the property set apart shall consist of real estate appraised at a sum in excess of five thousand dollars or such part thereof as may be claimed out of the real estate, and the surviving spouse shall fail to pay the excess over the amount so claimed as provided in clause (d) of this section, and the prop- erty shall thereupon be sold, there shall be deducted from the sum to be paid to said surviving spouse out of the proceeds of such sale a proportionate part of the rents and income of such real estate received by such surviving spouse. Note. — This is a new clause, introduced to include the right to the in- come of the property set apart to the surviving spouse from the date of the death of the intestate. In the case of intestacy vpithout issue, the surviving spouse is not en- titled to interest on the special allowance of $5,000 under Section 2 (/) of the Intestate Act of June 7, 1917, P. L. 429, in addition to the income of the property set aside or awarded to him. Fretz's Est., 28 Dist. 645. 302. REAL ESTATE IN ANOTHER COUNTY. (g) Whenever the surviving spouse of any intestate shall claim the said five thousand dollars in value, or any part thereof, under the provisions of this section, out of real estate left by said intes- tate and lying in any county of this state other than the county wherein said intestate shall be domiciled at the time of his or her death, and the orphans' court having jurisdiction of the accounts of the personal representatives of said intestate shall be satisfied, upon petition filed, of the propriety of allowing such claim the court may make a decree authorizing such surviving spouse to file his or her petition in the orphans' court of the county wherein such real estate may lie, or, in a case where the real estate is di- vided by a county line, in the county where the mansion house may be situated, or, if there be no mansion house, in the county where the principal improvements may be, or, if there be no improve- ments, in either county, praying for the appointment of two ap- praisers. Upon the filing of such petition, duly verified, the latter court shall appoint such appraisers, who shall be duly sworn or affirmed, and shall appraise said real estate, and shall be compensated as provided in clause (6) of this section; and proceedings shall there- 2i8 INTESTATE ACT-Section 2 (g), (h) upon be had in said court and subject to its supervision and con- trol, in the same manner and with the same effect as is provided in clauses (c), (d), (e) and (/) of this section. In every such case a certified copy of the decree confirming such appraisement, or of such decree of sale and the confirmation thereof, as the case may be, shall forthwith be filed with the clerk of the orphans' court having jurisdiction of the accounts of the personal represen- tatives of said intestate. The court having jurisdiction of the accounts shall in all cases have exclusive jurisdiction of the distribution of the surplus paid by such surviving spouse, or of the proceeds of such sale, after the payment of costs and expenses, as the case may be. Note. — This is a new clause, introduced to cover the case of lands lying in other counties. It is modeled to some extent upon Section 32 of the Act of March 29, 1832, P. L. 190, i Purd. iu8, relating to sales for the payment of debts. It seems clear that the distribution of the estate, and the setting apart of the real estate chosen by the surviving spouse should be made imder the control of the orphans' court of the county having jurisdiction of the accounts of the administrator or executor, and it seems equally clear that some record should be made of the decree in the county where the real estate is situated, and that the sale should be under the direction of the orphans' court of that county. 303. CERTIFIED COPY OF DECREE TO BE RE- CORDED AND REGISTERED. (h) In all cases where a decree shall be entered by any orphans' court confirming an appraisement of real estate and setting apart the same for the use of the surviving spouse, a certified copy of such decree shall be recorded in the office of the recorder of deeds of each county where such real estate shall lie, in the deed book, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the grantees' index under the name of the surviving spouse, and shall be registered in the survey bureau, or with the proper authorities empowered to keep a reg- ister of real estate, if any there be, in said county ; and the charges for recording and registering shall be the same as are provided by law for similar services, and shall be paid by said surviving spouse. NoTB. — This is a new clause, introduced for the sake of convenience in connection with the title to real estate. INTESTATE ACT— Section 3 219 304. WIDOW'S SHARE IN LIEU OF DOWER; SHARE IN LANDS ALIENED BY HUSBAND AND IN ESTATE IN REMAINDER. Section 3. The shares of the estate directed by this act to be allotted to the widow shall be in lieu and full satisfaction of her dower at common law so far as relates to lands of which the hus- band died seized ; and her share in lands aliened by the husband in his lifetime without her joining in the conveyance shall be the same as her share in lands of which the husband died seized. The widow shall be entitled to the same share in an estate in remainder vested in interest in the husband during his lifetime, although the particular estate shall not terminate before the death of the hus- band. NoTB.— This is Section 15 of the Act of April 8, 1833, P. L. 31S, 2 Purd. 2002, altered so as to make the widow's share in lands aliened by the husband without her joinder the same as her share in lands of which he dies seized. The last sentence is added to correspond with the last sen- tence of Section 4 of this act. Section 15 of the Act of 1833, was derived from Section 13 of the Act of April 19, 1794, 3 Sm. L. 143- Where it was claimed by counsel for the widow that her right in the coal and mining rights, conveyed during coverture without her joinder in the deed of conveyance, is that prescribed by Section 3 of the Intestate Act of June 7, 1917, P. L. 429, to wit, not her share as prescribed by the common law, but, instead, a share 'the same as her share in lands of which her husband died seized' ; this contention being followed up with the claim that because the decedent died since the Intestate Act of 1917 became operative, the widow is entitled to a one-third share of aliened lands in fee simple, and not merely a life interest in one-third of said real estate under common law or prescribed by the Intestate Act of April 8, 1833, P. L. 315. Hughes, P. J., held, inter aha : "As we are about to hold that this court is without jurisdiction of the subject matter involved, it will be unnecessary for us to pass upon these contentions of the petitioner's counsel. If such contentions are to be sup- ported and upheld by the court of competent jurisdiction called to pass upon the said contentions, it will be by holding that the provisions of Section 3 of the Intestate Act of June 7, 1917, P. L. 429, are (as to lands aliened by a decedent in his lifetime) retroactive in effect, and, accord- ingly, applicable to such transfers of lands consummated before as well as after the said statute became operative. There is very grave doubt if such conclusions could be reached by such court in view of the doctrine supported by the Pennsylvania decisions, which uniformly held that vested rights, such as those of the respondents in the case at bar in the aliened coal and mining rights, are not to be taken away, impaired or disturbed by statutory enactments: Taylor v. Mitchell, 57 Pa. 209 (1868); Barnesboro 220 INTESTATE ACT— Sections 3-4 Borough V. Speice, 40 Pa. Superior Ct. 609 (1909). Furthermore, it may not be improper for us to suggest that the constitutionaHty of this pro- vision of the said Act of June 7, 1917, P. L. 429, upon which the peti- tioner rests her claims, may be seriously questioned. The title of the statute indicates that it is 'An act relating to the descent and distribution of the real and personal property of persons dying intestate,' etc. The provisions of Section 3 under consideration concern lands which are aliened by the husband in his lifetime, and which, accordingly, at his death, do not form any part of his real or personal property or estate. Hence, it might be argued with effect that the failure of the title of the statute to reveal its intendment to govern real estate other than that of which de- cedents die seized, renders the provisions as to such aliened lands unconsti- tutional and inoperative. "We leave these legal questions to be determined by a court of competent jurisdiction, whose duty it will be to decide and adjudicate the share to which the petitioner is entitled in the said aliened lands. But whether such interest in such aliened lands shall be determined by the said court to be the share fixed for her by the common law or a substitute for the common law share created by the Intestate Act of June 7, 1917, P. L. 429, such interest or share will not be 'statutory dower' nor recoverable by her as 'statutory dower' through partition proceedings. To recover her share in such aliened lands, whether it be determined to be true common law dower or the substitute therefor attempted to be created by Section 3 of the Intestate Act of June 7, 1917, P. L. 429, her remedy will be the same, to wit, by an appropriate action in the common law courts and not by partition proceedings in the orphans' court. "We believe our conclusions will be found to be sound and supported by the decisions of the courts of Pennsylvania, if references be had to the cases." Stockdale's Est, 29 Dist. 1013. 305. SURVIVING HUSBAND'S SHARE IN LIEU OF CURTESY; SHARE IN ESTATE IN REMAIN- DER. Suction 4. The shares of the estate directed by this act to be allotted to the surviving husband shall be in lieu and full satisfac- tion of his curtesy at common law. The surviving husband shall be entitled to the same share in an estate in remainder vested in interest in the wife during her lifetime as in property of which she dies seized, although the particular estate shall not terminate before the death of the wife. Note. — This is a new section introduced in accordance with the plan to make the rights of the husband and wife the same. The last sentence is added to make the husband's rights the same as those of the wife in es- tates in remainder, the existing law making a distinction in this respect. See Hitner v. Ege, 23 Pa. 30S. INTESTATE ACT— Sections 5-6 221 306. HUSBAND'S RIGHT BARRED BY REFUSAL TO PROVIDE FOR WIFE, OR BY DESERTION. Suction 5. No husband who shall have, for one year or up- wards previous to the death of his wife, wilfully neglected or re- fused to provide for his wife, or shall haye, for that period or up- wards, wilfully and maliciously deserted her, shall have the right to claim any title or interest in her real or personal estate after her decease, under the provisions of this act. Note. — This is part of Section 5 of the Act of May 4, 1855, P. L. 430, 3 Purd. 2461, amended by the Act of May 3, 1915, P. L. 234, 6 Purd. 6588, omitting the words, "as aforesaid," before the words, "for one year or upwards." Where the evidence adequately supported the conclusion of the court that under the particular circumstances indicated by the evidence the husband was living apart from his wife, the decedent, with her tacit con- sent and that he was not guilty of wilfully neglecting to provide for her within the meaning of this section of the act, it was held that he had not forfeited his interest in her estate. Phillips' Est., 271 Pa. 129. 307. WIDOW'S RIGHT BARRED BY DESERTION. Section 6. No wife who shall have, for one year or upwards, previous to the death of her husband, wilfully and maliciously de- serted her husband, shall have the right to claim any title or in- terest in his real or personal estate after his decease, under the provisions of this act. Note. — This is the part added to Section s of the Act of 1855, by the amendment of 1915, with the substitution of the words "under this act," for "under the intestate laws of this commonwealth." This was held to be a reenactment of the Act of May 3, 1915 (P. L. 429), in Post's Estate, 27 Dist. 748, 36 Lane. 8, 66 P. L. J. 761, 8 Leh. 115, 33 York II. Under the Intestate Act of 1917, a wife, who left her husband and maintained unlawful association with another from 1908 until 1918 when her husband died, she as well as her legal representatives are barred from participating in his estate, when, from the evidence it could not be found as a fact, that she was justified in deserting him. When, from the evidence it can be found that a wife was justified in de- serting her husband, her subsequent unlawful association with another man would not bar her from sharing in his estate after his decease. Can- navan's Est., 69 P. L. J. 84. Where a husband and wife entered into an agremeent in writing in which they recite that, because of "divers disputes and differences, they have consented and agreed to live separately and apart from each other 222 INTESTATE ACT— Sections 6-7 (a) during their natural lives," and there is nothing to show that either ever released, waived or relinquished his or her rights in the estate of the other, including the right of inheritance, and they lived apart until the husband's death, the children of the husband cannot, after his death, op- pose the allowance to the wife of her statutory interest in her husband's estate, under the Act of June 7, 1917, P. L. 429, on the ground of willful and malicious desertion. As the husband was content with the provisions of the agreement during his lifetime, his children cannot do what their father did not see fit to undertake while he lived. Lawton's Est., 266 Pa. SS8, 106 Atl. 699. Under this section of the act where "it was agreed by everybody that the claimant was the surviving widow of the deceased testator, manifestly the burden of proof was upon those who asserted she had forfeited her right because of her wilful and malicious desertion of her husband." Head, J., in Schreckengost's Est., 77 Super. 235. 308. ISSUE. SECTION 7. The real and personal estate of such intestate, not hereinbefore given to the surviving spouse, if any there be, shall descend to and be distributed among his or her issue, according to the following rules and order of succession, namely, — 309. CHILDREN. (a) If such intestate shall leave children, but no other descend- ant, being the issue of a deceased child, the estate shall descend to and be distributed among such children. NoTfi. — This is clause i of Section 2 of the Act of 1833, 2 Purd. 1996, modified in language because of the abolition of Hfe estates to the widow and surviving husband. Clauses (6), (c) and (rf) of Section 7 are copied from clauses 2, 3 and 4 of Section 2 of the Act of 1833. Section 2 of the Act of 1833 was derived from Sections 3 and 4 of the Act of April 19, 1794, 3 Sm. L. 143. The earlier acts provided, in substance, as follows: Act of 1683 (iioth Law) : "That the estate of an intestate shall go to his wife, his child, or children." Act of 1684 (i72d Law) : "The remainder (after the widow's share) shall go to the children, the eldest son having a double part or share." Act of 1693 : "One-third to the wife, the residue among his chil- dren, and such as legally represent them (if any of them be dead) the eldest son having a double part or share," and, as to real estate, "the resi- due to be allotted and distributed as the siurplusage of personal estate is limited and directed." Act of 1705 (3 Sm. L. is6 n.) : "All the residue, by equal portions, to and amongst the children of such person dying intes- tate, allowing the eldest son two shares ; and to such persons as legally represent such children, in case any of the said children be then dead * * * to whom such distribution is to be made." Section 8 of the Act of 1705 provided that "the surplusage or remaining part of the intestate's lands, tenements and hereditaments, not sold, or ordered to be sold, by INTESTATE ACT— Section 7 (a), (b), (c), (rf) 223 virtue of this act, and not otherwise limited by marriage settlement, shall be divided between the intestate's widow and children, or the survivors of them, who shall equally inherit and make partition, as tenants in common may or can do. * * * But if the intestate leaves no widow nor child living at the time of his death, or if the children all die in their minority, without issue, then the said lands and tenements shall descend and come to the intestate's heir at law, according to the course aforesaid. But if any of the intestate's children, dying before the intestate, shall leave lawful issue, such issue shall equally inherit the intestate's lands and tene- ments, with their uncles or aunts, and make partition as aforesaid." Act of March 23, 1764 (3 Sm. L- 159 n.) : "If after the death of any father and mother any of their children hath died, or, at any time after the pass- ing of this act shall die intestate, in their minority, unmarried, and without issue, but not otherwise, the lands, tenements, hereditaments and estates, real and personal, of every such intestate, shall be equally divided amongst the surviving children, and the representatives of any child or children then dead, those representatives taking only such part or share, as should have passed to the child or children they represent respectively in sev- eralty forever. But if any child, either of age or in his or her minority, having or being entitled to any personal estate under such father, shall, after the passing of this act, die intestate, unmarried, and without issue, during the life of his or her mother, all such personal estate shall be equally divided between such mother of the deceased, and his or her brothers and sisters, and their legal representatives, in case any such brother or sister be then dead, they the said representatives only taking the share that should have passed to his, her or their parents, had he or she been living." 310. GRANDCHILDREN. (&) If such intestate shall leave grandchildren but no child or other descendant, being the issue of a deceased grandchild, the es- tate shall descend to and be distributed among such grandchildren. 311. DESCENDANTS IN SAME DEGREE OF CON- SANGUINITY. (c) If such intestate shall leave descendants in other degrees of consanguinity, however remote from him, and all in the same degree of consanguinity to him, the estate shall descend to and be distributed among such descendants. 312. DESCENDANTS IN DIFFERENT DEGREES OF CONSANGUINITY. (d) If such intestate shall leave descendants in different de- grees of consanguinity to him, the more remote of them being the 224 INTESTATE ACT— Sections 7 (d), i, 2, 3-8 issue of a deceased child, grandchild or other descendant, the estate shall descend to and be distributed among them as follows, namely, — 313. SHARES OF CHILDREN. 1. Each of the children of such intestate shall receive such share as such child would have received if all the children of the intestate who shall then be dead, leaving issue, had been living at the death of such intestate. 314. SHARES OF GRANDCHILDREN. 2. Each of the grandchildren, if there shall be no children, in like manner, shall receive such share as he or she would have re- ceived if all the other grandchildren who shall then be dead, leav- ing issue, had been living at the death of the intestate, and so in like manner, to the remotest degree. 315. ISSUE TAKING BY REPRESENTATION. 3. In every such case, the issue of such deceased child, grand- child or other descendant, shall take, by representation of their parents, respectively, such shares only as would have descended to such parents, if they had been living at the death of the in- testate. 316. PARENTS. Section 8. In default of issue as aforesaid, the real and per- sonal estate of such intestate, not hereinbefore given to the sur- viving spouse, if any there be, shall go to and be vested in the father and mother of such intestate, or if either the father or mother be dead at the time of the death of the intestate, the parents surviving shall take such real and personal estate. Note. — This is derived from Sections 3 and 5 of the Act of 1833, 2 Purd. 1997-8, altered so as to abolish the distinction between real and personal estates and give both to the parents absolutely, and modified in language because of the abolition of life estates to the widow and surviving husband. Section 3 of the Act of 1833 was derived from Sections s and 7 of the Act of April 19, 1794, 3 Sm. L. i43- Those sections provided that where a person died without widow or lawful issue the father should take the real estate for life and the personal estate absolutely, unless such estate came to the intestate from the part of his mother, in which case such estate should descend as if the intestate had survived his father. Section 7 of the Act of 1794 provided that where an intestate left neither widow, INTESTATE ACT— Sections 8-9 225 lawful issue nor father, but his mother survived, she should take the real and personal estate in the same way. Section 5 of the Act of 1833 was derived from Section 6 of the Act of 1794 and Section 5 of the Act of April 4, 1797, 3 Sm. L,. 296. Section 6 of the Act of 1794 provided that if the intestate left neither widow nor issue but left a father and brothers and sisters, the brothers and sisters should take the real estate after the death of the father, with provisions for representation by the issue of deceased brothers or sisters ; but that if the intestate left no brothers or sisters nor their representatives, the estate should go to the father in fee simple, unless it had descended from the part of the mother. Section 5 of the Act of 1797 provided that the estate of a woman dying intestate without leaving a husband should descend and be divided in the same manner as the Act of 1794 provided in the case of a man dying in- testate. This section further provided that if any intestate died leaving neither widow, issue, father, brother, sister, or their representatives, then the estate should be vested in fee simple in the mother, unless it had descended from the part of the father. The Act of 1683 (iioth Law) provided that where an intestate left no wife, child, brother or sister or children of brothers or sisters, one-half of the estate should go to the parents and the other half to the next of kin. The Act of 1684 (i72d Law) provided that in such case one-half should go to the parents and one-half to the governor. The Act o-f 1693 provided that in such case the whole estate should go to the parents. The Act of 170S (3 Sm. L. 156 n.) provided that in the absence of issue one-half of the estate should go to the wife and the residue "be distributed equally to every of the next kindred of the intestate, who are in equal degree, and those who legally represent them," and if there was no wife then the entire estate should be distributed to such kindred. Where A died intestate, unmarried and without issue, leaving to survive him as next of kin and heirs-at-law his father and mother, and the father died prior to distribution of the estate, it was held, that under Section 8 of the Intestate Act of 1917 all the personal estate passed to decedent's mother in her own right. Manzke's Est., 13 Berks 152. The court relied on Frankenfield v. Gruver, 7 Barr 448: "On the death of an intestate without issue, the third section of the revised Act of 1833 gives his personal estate to his father and mother, if hving, jointly and absolutely; and this, like any other joint chose in action or chattel, sur- vives to the surviving wife. Had the husband received the assets in this instance, he would have made them his own, and his wife could have claimed them only as his administratrix; but as he died a few days after the death of his son, she is entitled in her own right." See, also, Hamm V. Meisenhelter, 9 Watts 349; Gillan's Est., 65 Pa. 395-98. 317. COLLATERAL HEIRS. SECTION 9. In default of issue, father and mother, the real and personal estate of such intestate, not hereinbefore given to the sur- 15 226 INTESTATE ACT— Section 9 (o) viviiig spouse, if any there be, shall descend to and be distributed among the collateral heirs and kindred of such intestate, without distinction between those of the whole and those of the half blood, according to the following rules and order of succession, namely, — The introductory clause is altered so as to abolish the distinction between the whole and the half blood in the inheritance of real estate and to make the rule as to real estate the same as that provided by clause S of Section 4 of the Act of 1833 in the case of personal estate. Clause S therefore becomes unnecessary and is omitted. The language of the introductory paragraph is further modified because of the abolition of life estates to the widow and surviving husband. The distinction at present existing in our laws concerning the inheritance of real estate between heirs of the whole blood and those of the half blood is now admitted by all legal critics to have been unsatisfactory even in the times when it originated. Even Blackstone, Book 2, ch. 14, after stating that it is almost peculiar to the common law, and attempting to justify or rather explain it, admits that it is certainly a very fine-spun and subtle nicety. Sir Henry Sumner Maine, in his Ancient Law, expresses the opin- ion that nothing in the literature of the history of the law is more curious than Blackstone's remarks upon this rule of feudal succession. The rule had been entirely or partially abolished in very many of the United States even in Chancellor Kent's time (4 Commentaries 404) ; and has been abolished in others since he wrote. In Pennsylvania, no distinction is made by the present law between the whole and half blood in the distri- bution of personal property, and the present Commissioners are, as has been stated, strongly of opinion that real and personal property should descend and be distributed according to the same uniform plan. 318. BROTHERS AND SISTERS. (a) If such intestate shall leave brothers and sisters, or either, and no nephew or niece, or child of a deceased nephew or niece, being the issue of a deceased brother or sister, the real and personal estate shall descend to and be distributed among such brothers and sisters. Note. — Clauses (a) to (c) of this section are derived from clauses i, 2 and 4 of Section 4 of the Act of 1833, 2 Purd. 1998. Changes have also been made to cover the principle of representation by grandchildren of deceased brothers or sisters (see Section 11), and clause 3 of Section 4 of the Act of 1833 is replaced by the present clause (d) ; but no change is intended in the existing law as stated in Krout's Appeal, 60 Pa. 380. Section 4 of the Act of 1833 was derived from Sections 6 and 8 of the Act of 1794, and Sections s and 7 of the Act of 1797. Section 6 of the Act of 1794 provided that real estate should, after the death of the father, descend to brothers and sisters, with provision for representation by the issue of deceased brothers or sisters, the principle INTESTATE ACT— Suction 9 (a), (6), (c), (d) 227 of representation not being limited to the children of brothers and sisters. Section 8 of the Act of 1794 contained similar provisions for the case where the mother of the intestate took a life estate. Section 11 of the Act of 1794 provided for inheritance by the half blood in the absence of parents or brothers or sisters of the whole blood or their issue, but with a limitation to those of the blood of the first purchaser. Section 5 of the Act of 1797 provided for the inheritance by brothers and sisters in the absence of widow, issue or parents, with provision for representation by the issue of deceased brothers or sisters. Section 7 of that act provided for inheritance of the real estate by brothers and sisters of the whole blood to the exclusion of those of the half blood, but per- mitted the half blood to share equally in the personal estate, and provided for the inheritance of both real and personal property by brothers and sisters of the half blood in the absence of those of the whole blood or their issue, with a limitation to those of the blood of the first purchaser. The Act of 1683 (iioth Law) provided for inheritance by brothers and sisters or the children of brothers or sisters in the absence of wife or child. No distinction was made as to the half blood. The Act of 1684 (l72d Law) was similar. The Act of 1705 (3 Sm. L. 156 n.) provided that in the absence of issue the widow should take half the estate and the residue should go equally "to every of the next kindred of the intestate, who are in equal degree, and those who legally represent them : Provided, That there be no repre- sentatives admitted amongst collaterals, after brothers and sisters chil- dren." In case there was neither widow nor child, then the next kindred took the whole estate in the same manner. 319. NEPHEWS AND NIECES. {h) If such intestate shall leave neither brother nor sister, and no child of any deceased nephew or niece, being the issue of a de- ceased brother or sister, but nephews or nieces, being the children of such deceased brother or sister, the real and personal estate shall descend to and be distributed among such nephews and nieces. 320. CHILDREN OF DECEASED BROTHERS OR SIS- TERS TAKING BY REPRESENTATION. (c) If such intestate shall leave neither brother nor sister, nor any nephew or niece, being the child of such deceased brother or sister, but children of deceased nephews or nieces, the real and personal estate shall descend to and be distributed among such children of deceased nephews or nieces. 321. DESCENDANTS OF BROTHERS AND SISTERS. {d) If such intestate shall leave brothers or sisters and nephews or nieces, being children of a deceased brother or sister, and chil- 228 INTESTATE ACT— Sections 9 (d)-io ^ dren of deceased nephews or nieces, being issue of deceased broth- ers and sisters, or shall leave members of any two of these three classes, the real and personal estate shall descend to and be dis- tributed among such brothers and sisters, nephews and nieces, and children of deceased nephews and nieces, as follows, namely : Each brother and sister shall receive such share as he or she would have received if all the brothers and sisters who died before the intestate leaving children or children of deceased children sur- viving the intestate had been living at the death of the intestate. Each nephew and niece, if the intestate shall leave any brother or sister, shall receive an equal portion of the share which his or her parent would have taken if then living, which portion shall be what he or she would have taken if all the children of his or her parent who died before the intestate leaving children surviving the intestate had been living at the death of the intestate ; but if such intestate shall leave neither brother nor sister, the nephews and nieces shall take per capita. Each child of a deceased nephew or niece, whether the intestate shall leave members of one or both of the other classes, shall re- ceive an equal portion of the share which his or her parent would have received if living at the death of the intestate. Sec Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. 322. NEXT OF KIN. Section 10. In default of all persons hereinbefore described, the real and personal estate of the intestate shall descend to and be distributed among the grandparents or descendants of deceased grandparents of such intestate, and in default thereof to and among the next of kin to such intestate. Note. — This is Section 7 of the Act of 1833, 2 Purd. 1999, which was derived from Section 12 of the Act of 1794. The latter section, however, provided for representation by the issue of kindred without limitation. The explanatory words at the end, declaratory of the existing law, have been added for completeness. The Acts of 1683, 1684, 1693 and 1705 provided for inheritance by the next of kin, the Act of 1703 limiting the principle of representation, as already stated, to brothers' and sisters' children. This and Sections 11 and 12 make no change in the existing law, inas- much as no suggestions have come to the Commissioners for their modi- fication, and none seem desirable. See Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. INTESTATE ACT— Section io 229 When an intestate's only next of kin are uncles and aunts, they take per capita and not per stirpes under the Intestate Act of June 7, 1917, P. L. 429; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living. Gest, J., held: "The exceptant reUed upon Sections 10 and 12 of the Intestate Act of June 7, 1917, P. L. 429. 437, which, it appears from the report of the Commissioners to Codify and Revise the Law of Decedents' Estates, were derived from the preexisting law. The stirpetal distribu- tion, however, which is provided thereby applies only in case the decedent is survived by one or more than one grandparent, and not when, as in this case, all the grandparents predeceased the intestate. When the next of kin of the intestate are all uncles and aunts, they take equally and per capita, as clearly appears from Section 19 of the act ; and if an uncle or aunt be deceased, leaving children, such children take only by representa- tion the share their parent would have taken if living, as is provided by Section 11.'' Brodie's Est., 30 Dist. 654. Where the only heirs living and able to take are first and second cousins, the former take to the exclusion of the latter. In so holding, Moschzisker, C. J., said, inter alia: "The question here presented involves the right of appellants, who are second cousins, to share with first cousins in the distribution of the estate of an intestate, there being no nearer kindred. "The Act of June 7, 1917, P. L. 429, designates the persons who are entitled to the real and personal estate of an intestate after the payment of all just debts and legal charges. The first eight sections of the statute determine the distributive shares of the spouse, issue, father and mother ; and, in absence of these, the ninth section provides for a division among certain collateral heirs and kindred. "In the present case, as previously indicated, there is a complete default of all those on whom the right of distribution is bestowed by the first nine sections of the act, but there are living three first cousins, children of two deceased aunts, and two second cousins, who are grandchildren of another deceased aunt, all of whom are descendants of one of the deceased grandparents of the intestate. "Appellants contend that the inheritance falls to the first and second cousins together, each one of whom is entitled to share 'per capita,' as a member of a 'new class of collateral heirs,' under Section 10 of the Act before us for construction, which provides that, 'in default of all persons herinbefore described, the real and personal estate of the intestate shall descend to and be distributed among the grandparents or descendants of deceased grandparents of such intestate, and, in default thereof, to and among the next of kin to such intestate.' "The section just quoted is vague and indefinite; it fails either to say or suggest what possible groups of the persons indicated are to inherit, how these groups are to be arrived at, and whether those composing them take, as individuals, per stirpes or per capita. The sectioij is evidently intended as a general one, which does not attempt to mark out the re- spective rights of the parties included in it. To construe this part of the act so "as to bring about the results contended for by appellants would 230 INTESTATE ACT— Section io lead to such radical departures from the historical development of our intestate law, and the system of representation there built up, that one is immediately led to investigate the subsequent provisions of the statute, in order to find the real meaning of the part in controversy ; and, for- tunately, when this is done, light is seen. Before entering upon a con- sideration of these other sections, however, it may be well first to trace briefly the progress of legislation, for much the better part of a century past, bearing on the question we have to solve. (Here follows a review of prior legislation). ****** "With the law in the condition indicated, the Intestate Act of 1917 was passed. "While Section 10 of this late act provides that, in default of other and nearer kin, the estate of an intestate shall descend to 'grandparents or descendants of deceased grandparents,' it is evident from the other parts of the act that this is intended in a general sense and as merely introductory to subsequent, more specific provisions, particularly Section 12. which continues the existing rule laid down in the Act of 1887, supra, that, when a living grandparent is nearest of kin to an intestate and, at the time of the latter's death, there are also alive descendants of a de- ceased grandparent, these descendants represent the latter and share the estate of the intestate with the surviving grandparent, in the manner specifically provided. "When Sections 10 and 12 are read together, we see that it never was intended by the former to change the established policy of our law and set up unhmited representation among collaterals generally (this con- clusion is reinforced by a consideration of certain other sections, which we shall presently take up ; nor was it specifically intended that, with first cousins of an intestate alive, second cousins should inherit as repre- senting their parents, or otherwise, — which parents, we may remark, would be first cousins, to the intestate, in the same class with other first cousins, and, if alive, entitled to inherit with them, — but if we take the words as they stand in Section 10, without reference to other parts of the act, and give them controlling significance, as appellants would have us do, this construction, carried to its logical conclusion, would mean that both first and second cousins should take at the same time, and, since the language there employed does not say the estate shall go to such of the descendants of deceased grandparents as may be nearest of kin to the intestate, but simply — without limitation — that it shall go to 'descendants of deceased grandparents,' this might, in many cases, lead to children, in effect, rep- resenting their living parents, which, of course, is contrary to the per stirpes rule : Shoch Estate No. 2, 271 Pa. 165. Parts of the act subsequent to Section 10, however, forbid any such distribution as contended for by appellants ; and thus we see that the section in questioin cannot have the meaning they would give to it. "While Section 12, already referred to, extends somewhat the principle of representation among collaterals taking thereunder, yet the provisions of that section apply only where 'one or more than one grandparent' is alive and entitled to take at the death of the intestate; and the extended representation there provided for is confined to 'children or other de- scendants of any deceased grandparent,' when, and only when, they share INTESTATE ACT— Sections io-ii 231 the estate involved with a surviving grandparent. Section 10 merely intro- duces the idea, in a general way, of who, in default of the nearer kindred provided for in the earlier sections, may inherit ; it does not undertake to specify under what conditions the surviving grandparents or the de- scendants of dead grandparents, respectively, shall take, or in what pro- portions; that is left to Section 12, which fully covers the ground. * * ♦ "We agree with the court below that 'a clear view of the legislative intent is found by linking together the tenth, eleventh and nineteenth Sections of the act (and considering the twelfth). It then appears that, when there is a lapse of all of those in succession to the intestate pro- vided for in the other sections, the descendants of deceased grandparents inherit, * * * (f,y(. yj,hen there are) cousins gcrman * * *(being) in the same degree of consanguinity, they take the whole of the estate in equal shares ; and this view of the legislative intent precludes a distribu- tion to the second cousins.' In short, when there is no living grandparent, and first cousins of the intestate survive him, second cousins also sur- viving, are not the next of kin (nearest blood relations), nor can they take by representation ; hence they do not take at all. * * *" Opinion of January 3, 1922 in Miles' Est, S. C. October Term, 1921, Nos. 61 and 62, not yet reported. X '*^ "Z- f^ . 3 '2- ^=7 , 323. LIMITS OF REPRESENTATION. Section ii. The grandchildren of brothers and sisters and the children of uncles and aunts shall be entitled to take by represen- tation the shares of real and personal estate which their parents would have taken if living; but, except as hereinafter provided, there shall be no representations admitted collaterals after the grandchildren of brothers and sisters and the children of uncles and aunts. Note.— This takes the place of Section 8 of the Act of 1833, 2 Purd. 1999, and Section 2 of the Act of April 27, 1855, P. h. 368, 2 Purd. 1999, with the addition, in the last line, of the words "grandchildren of brothers and sisters and the." The Commissioners who drafted the Act of 1833 remarked that in Sec- tion 8 they restored to the law a provision which was included in the Act of 170S and continued in force until the Act of 1794, from which it was omitted, probably through inadvertence. See notes to Sections 9 and 10. Section 2 of the Act of 1855 extended the principle of representation so as to include the grandchildren of deceased brothers and sisters and the children of deceased uncles and aunts. There seems to be no reason for altering the law as it now stands. When an intestate's only next of kin are uncles and aunts, they take per capita and not per stirpes under the Intestate Act of June 7, 1917, P. L. 429; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living. 232 INTESTATE ACT— Section ii Gest, J., held : "The exceptant relied upon Sections lo and 12 of the Intestate Act of June 7, 1917, P. L. 429, 437, which, it appears from the report of the Commissioners to Codify and Revise the Law of Decedents' Estates, were derived from the preexisting law. The stirpetal distribution, however, which is provided thereby applies only in case the decedent is survived by one or more than one grandparent, and not when, as in this case, all the grandparents predeceased the intestate. Where the next of kin to the intestate are all uncles and aunts, they take equally and per capita, as clearly appears from Section 19 of the act; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living, as is provided bj' Section 11. We are, therefore, of opinion that the auditing judge was correct in the distribution which was made in the adjudication." Brodie's Est., 30 Dist. 654. Where decedent died intestate, unmarried, without issue and leaving him to survive neither father, mother, brothers, sisters, nephews or nieces, and his nearest collateral relatives were first cousins, the children of deceased uncles and aunts; and distribution was made to the eight first cousins in equal shares, Miller, P. J., held, in dismissing exceptions : "This section (Sec. 11, supra) is a restatement of Section 8 of the Intestate Act of 1833 and of Section 2 of the Act of April 27, 1855. These two acts were construed as constituting an additional class of collateral heirs and fixed the right of inheritance by representation (Hays' Appeal, 89 Pa. 256), but under the Act of June 30, 1885, P. L. 251, this con- struction could no longer be followed. This act provides. Section i, 'that whenever by the intestate laws of this Commonwealth it is directed that the real and personal estate shall descend to, and be distributed among several persons, whether lineal or collateral heirs or kindred standing in the same degree of consanguinity to the intestate, if there shall be only one of such degree he shall take the whole of such estate, and if there shall be more than one they shall take in equal shares, and if real estate they shall hold the same as tenants in common.' "It is clear that the reenactment of Section 19, with the interpretation put upon the Act of '85 as amending the Act of 'S5, shown in the cases cited, provides that this distribution must be per capita among the eight first cousins, they being all of the same class and in the same degree of consanguinity from the intestate. The opposition to this view is that, when the Legislature in 1917 reenacted on the same day and at the same time Section II and Section 18 and thus seemed to put the provisions of Section 11 back to the place it occupied prior to the Act of 'SS, and the decisions thereunder in Cremer's Estate, 156 Pa. 40, this re- stored the rule in Hay's Appeal, 89 Pa. 256, and that distribution in the case at bar must be by representation. "The question may well be raised touching the language of Section 11, which reenacted the old provisions already referred to; it puts the grandchildren of brothers and sisters and the children of uncles and aunts into a class who shall be entitled to take by representation. In this connection it must be observed that Section 10 of the Intestate Act of 1917 provides 'that in default of all persons hereinbefore described the INTESTATE ACT— Section ii 233 real and personal estate of the intestate shall descend to and be dis- tributed among the grandparents or descendants of deceased grandparents.' It seems to be manifest from the language of this section that grand- children of brothers and sisters are provided for in Section 9 of the same act and would take exclusive of the children of uncles and aunts, and that, therefore, the suggestion made that Section 11 applies only where grandchildren of brothers and sisters and children of deceased brothers and sisters, or uncles and aunts and children of deceased uncles and aunts, survive the intestate, is not manifest, since that would read into the section language not found there. "To hold that Section 11 reenacts the law as construed under Hays' Appeal repealing the effect of Section 19, which, as stated in Cremer's Estate, harmonizes the entire intestate system when the parties entitled to take are in the same degree of consanguinity, cannot have been the intent of the legislature, but that the intent was not to change the law, as con- strued by the later decisions of the appellate courts in passing on the Acts of 185s and 1885." Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. In discussing the rights of the second cousins as against first cousins as affected by this section of the act, Moschzisker, C. J., said inter alia, — "Section 11 reenacts the rule provided in earlier legislation, that, 'the grandchildren of brothers and sisters and the children of uncles and aunts shall be entitled to take by representation the shares * * * * which their parents would have taken if living;' but it expressly states that, 'except as hereinafter provided, there shall be no (other) repre- sentation admitted among collaterals;' the words 'as hereinafter pro- vided' evidently having application to the representation among descendants of a dead grandparent referred to in Section I2, and before discussed. "The part of the act now under discussion. Section 11, apparently deals with the phase of the principle of representation which determines who are entitled to take, and not with its other phase, — how division shall be made among those so entitled ; the latter aspect of the matter seems to be provided for by Section ig. * * * * "The provision (of Section 19) that lineal or collateral heirs standing in the same degree of consanguinity to the intestate shall take in equal shares, when read with the provision in Section 11, that 'there shall be no representation admitted among collaterals after the grandchildren of brothers and sisters and children of uncles and aunts,' shows plainly that the tenth section, depended on by appellants, cannot be given the effect of setting up unlimited representation among collaterals ; nor can it be con- strued to set up a new class of collateral heirs, who, although of different degrees, all being 'descendants of deceased grandparents of the intestate,' would take equally the estate of the latter, as contended by these second cousins, — such a scheme of distribution is so unusual in our law as to require plain and unequivocal language to establish it (Whitaker's Estate, I7S Pa. 139, 143), which we do not find here. * * *" Opinion of Jan- uary 3, 1922, in Miles' Est., S. C. October Term, 1921, Nos. 61 and 62 not yet reported. 234 INTESTATE ACT— Section i3 (a) 324. GRANDPARENTS AND ISSUE OF DECEASED GRANDPARENTS. Section 12. If the next of kin of an intestate, entitled to take under the provisions of this act, shall be one or more than one grandparent of such intestate, and there shall be living, at the time of the decease of such intestate, children or other descend- ants of any deceased grandparent, then the children or other descendants of any such deceased grandparent shall represent the grandparent so deceased, and shall take the share of real or personal estate to which such deceased grandparent would be entitled if living. The issue of any such deceased grandparent shall take accord- ing to the following rules of succession, namely, — When an intestate's only next of kin are uncles and aunts, they take per capita and not per stirpes under the Intestate Act of June 7, 1917, P. L- 429; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living. Gest, J., held: "The exceptant relied upon Sections 10 and 12 of the Intestate Act of June 7, 1917, P. L. 429, 437, which, it appears from the report of the Commissioners to Codify and Revise the Law of Decedents' Estates, were derived from the preexisting law. The stirpetal distribution, however, which is provided thereby applies only in case the decedent is survived by one or more than one grandparent, and not when, as in this case, all the grandparents predeceased the intestate. Where the next of kin of the intestate are all uncles and aunts, they take equally and per capita, as clearly appears from Section 19 of the act ; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living, as is provided by Section 11. Brodie's Est., 30 Dist. 654. See opinion of Moschzisker, C. J., January 3, 1922, in Miles' Est., S. C. October Term 1921, Nos. 61 and 62 not yet reported. 325. CHILDREN OF DECEASED GRANDPARENT. (a) If there be only children of such deceased grandparent, the share of such deceased grandparent shall descend to and be distributed among such children. NoTB. — The clauses of this section are copied from clauses i to iv of Section I of the Act of May 25, 1887, P. L. 261, 2 Purd. 1999. It is stated in Whitaker's Estate, 175 Pa. 139, 142, that the Act of 1887 was passed to meet the decision in McDowell v. Addams, 45 Pa. 430, where it was held that a living grandparent took to the exclusion of the descendants of a deceased one. INTESTATE ACT— Section 12 (6), (c), (d) i, 2 235 326. GRANDCHILDREN OF DECEASED GRAND- PARENTS. (b) If there be grandchildren of such deceased grandparent and no other descendants, being children of a deceased grandchild, and no child, the share of such deceased grandparent shall de- scend to and be distributed among such grandchildren. The only change made from the Act of 1887 is to add, in clause (b), the words "being children of a deceased grandchild" after "no other descendants.'' This is the evident meaning of the clause, and the words are inserted for the sake of clearness. 327. DESCENDANTS OF DECEASED GRANDPARENT IN SAME DEGREE OF CONSANGUINITY. (c) If there be descendants of such deceased grandparent in any other degree however remote from him, and all in the same degree of consanguinity to him, the share of such deceased grandparent shall descend to and be distributed among such descendants. 328. DESCENDANTS OF DECEASED GRANDPARENT IN DIFFERENT DEGREES OF CONSANGUIN- ITY. (d) If there be descendants of such deceased grandparent in different degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild or other descendant, the share of such deceased grandparent shall descend to and be distributed among them as follows, namely, — 329. CHILDREN OF DECEASED GRANDPARENT. 1. Each of the children of such deceased grandparent shall receive such share as such child would have received if all the children of such deceased grandparent, who shall then be dead leaving issue, had been living at the death of the intestate. 330. GRANDCHILDREN OF DECEASED GRAND- PARENT. 2. Each of the grandchildren, if there shall be no children of such deceased grandparent, in like manner shall receive such share as he or she would have received if all the other grand- children, who shall then be dead, leaving issue, had been living at the death of the intestate, and so in like manner to the re- motest degree. 236 INTESTATE ACT— Sections 12 (d) 3-13 331- ISSUE TAKING BY REPRESENTATION. 3. In every such case, the issue of such deceased child, grand- child or other descendant of such deceased grandparent shall take, by representation of their parents respectively, such share only as w^ould have descended to such parents, if they had been living at the death of the intestate. Note. — This provision of the Act of 1887 introduced the principle of unlimited representation, not in harmony with the Act of 1855 (Section 324 supra) ; but it has been in effect for thirty years and so far as the Commissioners are advised, has proved satisfactory. Hence, they do not feel justified in recommending a change. 332. RULE AS TO BLOOD OF FIRST TAKER ABRO- GATED. Section 13. In all cases where, under the provisions of this act, the real estate shall descend to and the personal estate shall be distributed among the next of kin of an intestate, the real as well as the personal estate shall pass to and be enjoyed by such next of kin, without regard to the ancestor or other relation from whom such estate may have come, it being the true intent and meaning of this act that the rule excluding from the inherit- ance of real estate persons not of the blood of the ancestor or other relation from whom such real estate descended, or by whom it was given or devised to the intestate, be abrogated, and that the heir at common law shall not take, in any case, to the exclu- sion of other heirs and kindred standing in the same degree of consanguinity with him to the intestate. Note. — This is Section 11 of the Act of 1833, 2 Purd. 2002, amended so as to apply to all cases and not merely to cases "not expressly provided for" by the act. It involves the repeal of Section 9 of the Act of 1833, 2 Purd. 2000-1, and of Section 2 of the Act of May 25, 1887, P. L. 261, 2 Purd. 2000, which reenacted the provisions of Section 9 of the Act of 1833 in connection with the cases provided for by the Act of 1887, as to which see the last preceding note. The Act of 1794, as already noted, expressly imposed the rule as to the blood of the first purchaser in certain cases, namely, those of inheritance by the father or mother or by the half blood ; and the common law rule seems to have been applied generally before the Act of 1833 (see Bevan v. Taylor, 7 S. & R. 397; overruling Walker v. Smith, 3 Yeates 480). There is no reference to the rule in any of the earlier acts. The common law rule as to inheritance from the blood of the first purchaser was infringed upon by the Act of 1833, but still exists in other cases where its effect is generally entirely arbitrary; and the Commis- sioners recommend its total aboHtion. This change is also in accordance INTESTATE ACT— Sections 13-14-1S (a) 237 with the general principle of this revision, that no distinction should be made in the intestate act between real and personal estates. See Miller v. Brown, 49 Pa. C. C. 332. 333. FOREGOING PROVISIONS APPLY ONLY TO LEGITIMATES. Section 14. Except as otherwise provided in Section 15, the foregoing provisions of this act relative to descent and distribu- tion of real and personal estate among the heirs and next of kin of intestates shall be construed to mean such persons only as may have been born in lawful wedlock. Note. — This is Section 17 of the Act of 1833, 2 Purd. 2003, except for the insertion of the words from "except" to "foregoing,"' and the sub- stitution of "next of kin" for "descendants and collateral relations." The rights of illegitimates are treated in the next section; the sections after Section 15 apply to illegitimates as well as legitimates. The Act of 1794 and the earlier acts contain no reference to illegiti- mates, but mention "'children'' and "lawful issue." 334. ILLEGITIMATES,— INHERITANCE AS BETWEEN MOTHER, GRANDPARENTS AND CHILD. Section 15 (a) The mother of an illegitimate child, her heirs and next of kin, the maternal grandfather and grandmother of said illegitimate child, and said illegitimate child, its heirs and next of kin, shall have capacity to take or inherit from each other personal estate as next of kin, and real estate as heirs, under the foregoing provisions of this act, in the same manner and to the same extent as if said child or children had been born in lawful wedlock. Note. — This is Section 2 of the Act of July 10, 1901, P. L. 639, 2 Purd. 2005-6, changing "legal representatives'' to "next of kin" in two places, substituting "the foregoing provisions of this act" for "the intestate laws of this Commonwealth," omitting, in lines 3 and 4, the words "or children" before "its," and "or their" after "its," and in line 6, "in fee simple, or otherwise," after "heirs," and adding "grandfather." The Act of April 27, 1855, P. L. 368, Section 3, gave an illegitimate child and its mother capacity to inherit from one another. The Act of June 5, 1883, P. L. 88, Section i, gave illegitimate children of the same mother capacity to inherit personal property from one another. Section 3 of the Act of April 2T, 1855, siipra, was amended by the Act of June 14, 1897, P. L. 142, Section i, 2 Purd. 2004-5, so as to enable illegitimate children and their issue and their mother and grandmother to take or inherit from each other personal and real estate, and as regards 238 INTESTATE ACT^Section 15 (a), (b), (c) real or personal estate so taken and inherited, to transmit the same accord- ing to the intestate laws of the state. The "grandmother" included in the Act of 1897, is presumably, the maternal grandmother, although the act does not say so. The Act of June 10, 1901, P. L,. 551, Section i, 2 Purd. 2005, provides that all children of the same mother, whether legitimate or illegitimate dying without leaving children or others entitled to inherit under the existing laws, shall have capacity to inherit from each other, to the ex- clusion of the grandmother of said illegitimate child or children. This is covered by clause (b) of the present section of the new act. The new draft does not include the provision of Section i of the Act of 1897, and of Section i of the Act of July 10, 1901, that "illegitimate children shall take and be known by the name of their mother," and the further provisions of the latter section are also omitted as not within the scope of an intestate act. This will be covered by repealing Section i of the Act of 1897 but allow- ing Section i of the Act of July 10, 1901, 2 Purd. 2005, to stand, although the other sections of that act should be repealed since their substance is contained in the new act. "In this and other states the rigors of the common law rule have been mitigated by statutes, increasing the rights of illegitimates, especially in reference to inheritance from and through their mothers. Section 15 of the 'Intestate Act' of June 7, 1917, P. L. 439, which is a substitute for former legislation, contains a summary of the present statutory law on this subject in Pennsylvania." Wanner, P. J. in Commonwealth v. Gross, 35 York 93. 335. INHERITANCE AS BETWEEN CHILDREN, LEGITIMATE AND ILLEGITIMATE. (b) Every illegitimate child shall be considered as a brother or sister to every other child of its mother, legitimate or illegiti- mate. Note. — This is Section 3 of the Act of July 10, 1901, 2 Purd. 2006, altered by changing "each" to "every," inserting the words "a brother or sister," omitting the words "'of the half blood," since the distinction between the whole and half blood is abolished by the new act, and omit- ting the remainder of the section, beginning "notwithstanding any repute or conviction." Neither the meaning nor the purpose of that part of the section is apparent. 336. LEGITIMATION AS TO MOTHER, BUT NOT AS TO FATHER. (c) The intent of this section is to legitimate an illegitimate child only so far as is provided by clauses (a) and (b) hereof. INTESTATE ACT— Sections is (c), (rf)-i6- (o) 239 This section is not intended to change the existing- law with regard to the father of such a child, and his heirs and next of kin. Note. — This is Section 4 of the Act of July 10, 1901, as amended by Section i of the Act of March 26, 1903, P. L. 70, 2 Purd. 2006, altered by omitting after "illegitimate child" the words, "or its heirs, as to its mother and her heirs," and inserting "only so far as is provided in clauses (a) and (6) of this section;'' by substituting "and his'' for "or their respective," and "next of kin" for "legal representatives," and by omitting the proviso making the act applicable to pending cases, as not being in harmony with the general policy of the present act, namely, that it shall apply only to the estates of persons dying on or after a certain day, subsequent to the approval of the act. 337. LEGITIMATION BY MARRIAGE OF PARENTS. (rf) In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock, or shall heretofore have entered into the bonds of lawful wedlock, such child or children shall be legitimated for all purposes of inheritance by, from or through such child or children, under the provisions of this act, as if he or they had been born during the wedlock of his or their parents. Note. — This is founded on Section i of the Act of May 14, 1857, P. 1,. 507, 3 Purd. 2445, modified so as to be limited to the purposes of the intestate law, so as to omit the requirement of cohabitation, and so as to extend that section to include inheritance, from or through such legitimated children. The provision that the act shall apply to past cases is in accord with the Act of April 21, 1858, P. L. 413, Section i, 3 Purd. 2446, which provided that the Act of 1857 should be taken to apply to all cases within its terms prior to its date as well as those subsequent thereto. The Commissioners recommend the omission of the requirement of cohabitation, as contained in the present law. As this has been construed by the courts: Clauer's Appeal, 11 W. N. C. 427; Agnew's Estate, 29 W. N. C. 520, the cohabitation need be only nominal ; in cases of "forced" marriages, real cohabitation is rarely possible and sometimes very in- advisable. 338. ADOPTED CHILDREN,— INHERITANCE AS BE- TWEEN ADOPTED PERSONS AND ADOPT- ING PARENT. SECTION 16. (a) Any minor or adult person adopted according to law and tTTe adopting parent or parents shall, respectively, in- herit and take by devolution from and through each other per- sonal estate as next of kin and real estate as heirs, under the 240 INTESTATE ACT— Section i6 (o), (6) provisions of this act, as fully as if the person adopted had been born a lawful child of the adopting parent or parents. Note.— This is founded on Section i of the Act of April 13, 1887, P. L. 53, 2 Purd. 2006, and upon the provisions as to inheritance contained in the various acts relating to adoption. This and the other clause of the present section are intended to cover the entire subject of inheritance by and from adopted persons and seem to make it necessary to repeal the existing adoption acts, so far only, how- ever, as they relate to inheritance. The Act of May 9, 1889, P. L. 168, Section i, i Purd. 280-281, relating to adoption of adults, provides that the adopted person shall inherit only as one of the children of the adopting parent, and that such adopted child and the lawful children of the adopting parent shall inherit from and through each other as if all had been lawful children of the same parents. Section i of the Act of April 22, 1905, P. L. 297, s Purd. 5227, amending Section i of the Act of May 19, 1887, P. L,. 125, l Purd. 279, which amended Section 7 of the Act of May 4, 1855, P. L. 431, contains the same provision. Section 3 of the Act of June i, 191 1, P. L. 539, 5 Purd. 5228, relating to adoption of adults, provides that the adopted person and the adopting parent shall inherit and take from and through each other as fully as if the person adopted had been born the lawful child of the adopting parent. Section 4 of the same act provides that the adopted person and other children of the adopting parent, whether natural or adopted, shall inherit from and through each other. This act repeals the Act of 1889 above cited. The Act of May 28, 1915, P. L. 580, 5 Purd. 5228, further amends Section 7 of the Act of May 4, 1855, above cited, by adding the provision that the adopting parent and the adopted child shall inherit and take from and through each other as fully as if the person adopted had been born a lawful child of the adopting parent. See Moore's Est., 30 Dist. 152; 68 P. L. J. 670; 15 Del. 367. 339. INHERITANCE AS BETWEEN ADOPTED PER- SON AND ADOPTED RELATIVES; NATURAL KIN OF ADOPTED PERSON EXCLUDED. (b) The person adopted shall, for all purposes of inheritance and taking by devolution, be a member of the family of the adopting parent or parents. The adoptive relatives of the person adopted shall be entitled to inherit and take from and through such person to the exclusion of his or her natural parents, grand- parents and collateral relatives, but the surviving spouse of such adopted person and the children and descendants of such adopted person shall have all his, her and their respective rights under this act. Adopted persons shall not be entitled to inherit or take INTESTATE ACT— Sections i6 (&)-i7 (a), (6) 241 from or through their natural parents, grandparents or collateral relatives, but each adopted person shall have all his or her rights under this act in the estates of his or her spouse, children and descendants. Note. — This is founded on Section 4 of the Act of June i, 191 1, P. h- 539, 5 Purd. 5229, with an extension of its provisions so as to make the adopted person for all purposes of inheritance a member of the family of the adopting parent. This seems to be in accordance with the policy indicated by Section I of the Act of April 13, 1887, P. L. S3, 2 Purd. 2006, which provides that "the adopting parents and their lawful heir and kindred shall be treated and shall inherit from such adopted child, according to the intestate laws of this commonwealth, the same as though such adopted child were the natural child and heir-at-law of such adopting parents, to the exclusion of the natural parents, kindred and heirs-at-law of such adopted child, reserving to the husband and wife of such adopted child all his or her respective rights, under the intestate laws ; * * * Provided, however. That this act shall only apply to such property as the adopted child shall have inherited or derived from the adopting parents or their kindred." The proviso is omitted in accordance with what appears to be the legis- lative policy in later statutes. See Moore's Est., 30 Dist. 152; 68 P'. L. J. 670; 15 Del. 367. 340. SURVIVING SPOUSE AND NO KNOWN HEIRS OR KINDRED,— RIGHTS OF SURVIVING SPOUSE. Section 17. (a) In default of known heirs or kindred, com- petent as aforesaid, the real estate of such intestate shall be vested in the surviving spouse of such intestate, if any, and the surviving spouse shall be entitled to the whole of the personal estate. NoTE.^This is Section 10 of the Act of 1833, 2 Purd. 2001, substituting ■'surviving spouse" for "widow or surviving husband," and omitting the description of the estate, which is superfluous in view of Section 18 of the new act. Section 10 of the Act of 1833 was copied from the Act of January 21, 1819, P. L. 25 (7 Sm. L. 142) Neither the Act of April 19, 1794, 3 Sra. L. 143, nor the Act of April 4, 1797, 3 Sm. L. 296, contained any provision on this subject, nor did any such provision appear prior to the Act of 1819. 341. PROCEDURE. (b) If any person shall die, or has died intestate, leaving a sur- viving spouse and no known heirs or kindred, such surviving spouse, his or her heirs or legal representatives, may, at any time 16 242 INTESTATE ACT— Section 17 (fc) after the expiration of one year from the death of such intestate, and after final settlement of the administration accounts of such intestate, present a petition to the orphans' court of the county wherein any real estate of such intestate may lie, or, in the case of personal estate, to the orphans' court having jurisdiction of said administration accounts, setting forth that the said intestate died leaving no known heirs or kindred and seized or possessed of real or personal estate, which by virtue of this act, vested in such surviving spouse. Such petition shall be verified by the oath or affirmation of the party petitioning, or of some other person knowing the facts. Upon the presentation of said petition, the said court shall grant a citation to all the heirs or other persons interested or claiming any interest in said estate, to appear in said court at some time certain and show cause why a decree should not be made, ordering and directing, in the case of real estate, that the title thereto be adjudged to be in such surviving spouse, his or her heirs, or, in the case of personal estate, that the administrator or administrators of the estate of said intestate shall pay over to such surviving spouse, his or her legal representatives, the balance of such intestate's estate in his or their hands. Notice of such citation shall be published for such length of time and in such manner as the court in its discretion shall think proper. If, upon the return of the citation and due proof of publica- tion thereof, agreeably to the order of the court, no heirs or kindred claiming said estate shall appear, nor any good cause be shown to the contrary, the court shall order and decree as aforesaid, and, in the case of real estate, a certified copy of such decree shall be recorded in the office of the recorder of deeds of the county where said real estate shall lie, in the deed book, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the grantees' index under the name of the surviving spouse, and shall be registered in the survey bureau, or with the proper authorities empowered to keep a register of real estate, if any there be, in said county. The charges for recording and registering shall be the same as are provided by law for similar services. The record of such decree shall be deemed and held to be prima facie proof of the facts therein set forth with like force and effect as the record of a deed ; and if, upon the return of any such citation, any person or per- sons shall appear in court claiming to be heirs or kindred of INTESTATE ACT— Section 17 (6) -18 243 such intestate, whose rights to the said estate shall be disputed by such surviving spouse, his or her heirs or legal representatives, then the court may direct an issue to determine the matter, or may make such order therein as they shall think proper. In all cases the decree of such court entered upon the failure of any heirs or kindred to appear, or after the trial of such an issue, or otherwise, shall not be subject to be reopened by said court after the expiration of six months from the date of its entry, except as hereinafter provided. Any such cause may be removed by appeal to the supreme court or superior court, in the same manner as appeals are now taken by law in cases determined in the orphans' court or tried by jury upon issues directed by that court. Where the record in such cause is thus removed to an appellate court, the six months' period within which the decree is subject to be reopened by the orphans' court shall cease to run until the return of the record from the appellate court. Note. — This is Section i of the Act of April 6, 1833, P. L. 207, 2 Purd. 2001-2, modified so as to include the procedure in cases of real estate in the same or other counties and by adding provisions for recording and as to the conclusiveness of the decree. The provision as to recording is copied from the Act of June 20, 1883, P. L. 131, 2 Purd. 2004, providing a procedure whereby any person taking lands under the intestate laws may show on the records of the orphans' court and the recorder of deeds his interest in such lands. The Commissioners recommend the repeal of the Act of 1883 as unnecessary or ineffective. The Act of April 6, 1833, does not seem to have been drafted by the Commissioners to Revise the Civil Code, and no previous act containing similar provisions has been found. 342. ESTATES PASSING TO PERSONS ENTITLED UNDER THE ACT. Section 18. The real estate of such intestate shall be vested in the person or persons entitled thereto under the provisions of this act for such estate as the intestate had therein, and such person or persons shall be entitled to the personal estate abso- lutely. Note. — This is a new section, introduced in order to avoid the necessity of repeating the description of the estates to be taken under the various preceding sections. By the provisions of the Intestate Act of 1917, joint owners, in fee, as tenants in common of real estate may have partition in equity of the 244 INTESTATE ACT— Sections 18-19 estate so held, upon the death of one cotenant. Maurer v. Straub, 16 Sch. 174. See Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. 343. PERSONS IN THE SAME DEGREE OF CON- SANGUINITY TAKE EQUALLY. Section 19. Wherever real or personal estate shall descend to or be distributed among several persons, whether hneal or col- lateral heirs or kindred, standing in the same degree of con- sanguinity to the intestate, if there shall be only one of such degree, he shall take the whole of such estate, and if there shall be more than one, they shall take in equal shares, and if real estate, shall hold the same as tenants in common. Note. — This is Section 14 of the Act of 1833, 2 Purd. 2002, omitting after "wherever," the words "by the provisions of this act, it is directed." Section i of the Act of June 30, 1885, P. L. 251, 2 Purd. 2002, making the same provision, was passed in consequence of the decision in Hayes' Appeal, 89 Pa. 256, that the children of deceased uncles and aunts, taking by representation under Section 2 of the Act of April 27, 1855, P. L. 368, 2 Purd. 1999, were not within the scope of Section 14 of the Act of 1833, and took per stirpes and not per capita, although no uncles or aunts survived. Since Section 2 of the Act of 1855 is embodied in Section 11 of the new act (see 323 supra) the provisions of the new Section 19 clearly include first cousins. There seems to have been no similar provision in the acts previous to 1833- Where decedent died intestate leaving as next of kin first cousins, it was not error to distribute the estate in equal shares as this is clearly the intent of the Intestate Act of 191 7, which reenacts prior statutes providing for distribution where the beneficiaries are of the same degree of con- sanguinity. Wightman's Est., 49 Pa. C. C. 614; 30 Dist. 885, 68 P. L. J. 833 (see 323 supra). When an intestate's only next of kin are uncles and aunts, they take per capita and not per stirpes under the Intestate Act of June 7, 1917, P. L. 429; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living. GfisT, J., held: "The exceptant relied upon Sections 10 and 12 of the Intestate Act of June 7, 1917, P. h- 429, 437, which, it appears from the report of the Commissioners to Codify and Revise the Law of Decedents' Estates, were derived from the preexisting law. The stirpetal distribution, however, which is provided thereby applies only in case the decedent is survived by one or more than one grandparent, and not when, as in this case, INTESTATE ACT— Section 19-29-21 245 all the grandparents predeceased the intestate. Where the next of kin of the intestate are all uncles and aunts, they take equally and per capita, as clearly appears from Section 19 of the act; and if an uncle or aunt be deceased, leaving children, such children take only by representation the share their parent would have taken if living, as is provided by Sec- tion II. Brodie's Est., 30 Dist. 654. See opinion of Moschzisker, C. J., January 3, 1922, in Miles' Est., S. C. October Term, 1921, Nos. 61 and 62, not yet reported. 344. POSTHUMOUS CHILDREN. Section 20. Descendants and relatives of an intestate, begot- ten before the death of the intestate and born thereafter, shall in all cases inherit and take in like manner as if they had been born in the lifetime of such intestate. Note. — This is Section 13 of the Act of 1833, 2 Purd. 2002, which was founded on Section 10 of the Act of April 19, 1794, 3 Sm. L. 143. That section provided : "That all posthumous children shall, in all cases what- soever, inherit in like manner, as if they were born in the lifetime of their respective fathers." 345. LIMITATION OF CLAIMS. Section 21. All relatives and persons concerned in the estate of any intestate who shall not lay legal claim to their respective shares of the personal estate within seven years of the decease of the intestate, shall be debarred from the same forever : Provided, That if any such relative or person shall, at the time of the decease of the intestate, be within the age of twenty-one years, he or she shall be entitled to receive and recover the same, if he or she shall lay legal claim thereto within seven years after coming to full age. Note. — This is Section 19 of the Act of 1833, 2 Purd. 2003, with the insertion of the words "of the personal estate" in accordance with the decisions cited in the note to Purdon, and the omission of the saving as to married women. Section 19 of the Act of 1833 was founded on Section 18 of the Act of April 19, 1794, 3 Sm. L. 143, the revisers omitting the saving of per- sons noH compos mentis, in prison or out of the United States. The Act of 1684 (172nd Law) imposed a limitation of three years. The Act of 1693 (3 Sm. L. 154 n.) provided the same limitation. The Act of 1700 (3 Sm. L. ISS n.) made the limitation seven years. Section 5 of the Act of 1705 (3 Sm. L. IS7 n.) read: "That all such of the intestate's relations, and persons concerned, who shall not lay legal claim to their respective shares, within seven years after the decease of the intestate, shall be debarred from the same forever." 246 INTESTATE ACT-Sections 22-23 346. ADVANCEMENTS. Section 22. If any person, other than a surviving spouse, entitled under the provisions of this act to inherit or take real or personal property from such intestate, shall have any estate by settlement of such intestate, or shall have been advanced by him in his lifetime, either in real or personal estate, the amount of such settlement or advancement shall be charged against the share of the person who shall have received it, so that the total amount received by him, including the amount of such settlement or advancement, shall not exceed the amount received by each of the other persons who are equally entitled under the provisions of this act to inherit or take from said intestate. Note. — This is founded on Section 16 of the Act of 1833, 2 Purd. 2002, which contained in substance the provisions of Section g of the Act of April 19, 1794, 3 Sm, L,. 143, the changes now made being for the purpose of including all persons entitled under the act and simplifying the language. Section 2 of the Act of 1705 (3 Sm. L. 156 n.) contained a provision similar to that of the Act of 1794. The Act of March 13, 1815, P. L. 173 (6 Sm. L. 298), provided for the appointment of three auditors to settle the amount of advancements where some of the heirs resided out of the state, and for the procedure by the auditors. It is stated in a note in Pepper and Lewis' Digest of Laws that this act was supplied by Section 20 of the Act of March 29, 1832, P. L.190. The Act of 1815 does not appear in Stew. Purd. It is now recommended for repeal. 347. PERSON ADJUDGED GUILTY OF MURDER NOT TO INHERIT FROM MURDERED PERSON. Section 23. No person who shall be finally adjudged guilty, either as principal or accessory, of murder of the first or second degree, shall be entitled to inherit or take any part of the real or personal estate of the person killed, as surviving spouse, heir or next of kin to such person under the provisions of this act. Note. — This is a new section framed to meet the situation presented in Carpenter's Estate, 170 Pa. 203. In that case, a son killed his father, was convicted of murder and was executed therefor. His mother, the widow of the intestate, was convicted as an accessory after the fact and duly sentenced. The motive of the crime was to get possession of the estate of the decedent, and the supreme court was constrained to hold that the criminals had not forfeited their rights under the intestate law. This decision, although criticized on equitable grounds: 36 American Law Register N. S. 225; 64 University of Pennsylvania Law Review 307, is nevertheless in accordance with the weight of authority: see In Re INTESTATE ACT— Sections 23-24-25 247 Houghton (1915) 2 Ch. 173; 15 Columbia Law Review 260, 275; but it appears shocking to morality that an heir should be permitted to profit by his crime. The Commissioners in their draft of the Wills Act herewith submitted (see 244. supra) have embodied a similar provision applicable to the case of a devisee or legatee, in order that the same rule may apply. The Com- missioners are of opinion however that the guilt of the party charged with the crime should be determined by his conviction in the proper forum. 348. ESCHEAT. Section 24. In default of all such known heirs or kindred, or surviving spouse, competent to take as aforesaid, the real and personal estate of such intestate shall go to and be vested in the commonwealth by escheat. Note. — This is Section 12 of the Act of 1833, 2 Purd. 2002, with the addition of the words, "competent to take." The section was introduced in the Act of 1833 for the purpose of com- pleting the system, and was taken from the Act of September 29, 1787, 2 Sra. L. 425. 349. ACT NOT TO APPLY TO PERSONAL ESTATE OF INTESTATE DYING DOMICILED OUT- SIDE THE COMMONWEALTH. Section 25. Nothing in this act contained, relative to a dis- tribution of personal estate among kindred, shall be construed to extend to the personal estate of an intestate whose domicile, at the time of his death, was out of this commonwealth. Note. — This is Section 20 of the Act of 1833, 2 Purd. 2004, which was new in the Act of 1833. In the distribution of assets of foreign intestates, the Orphans' Court of Allegheny County will require that the domicile of the decedent be con- clusively established before a decree will be made. If the distributees are domiciled abroad, their rights to share in the estate must be clear as well as how said shares are to be disbursed either by consular agencies or otherwise. Mii,i,ER, P. J., held: "We now indicate, as suggestions, certain general principles, the same to be lodged with the clerk for the benefit of and aid to accountants and counsel. "These are as follows : "First, that the domicile of the decedent must be ascertained and found as a fact before the question of distribution can be considered; to find this fact, residence and intent must concur and must be made to appear in each case. 248 INTESTATE ACT— Sections 25-26-27 "Second, that the grant of letters by the register is not conclusive evidence of domicile. "Third, that domicile having been established, distribution will be made in accordance with the laws thereof ; if domiciled in Pennsylvania, then according to the laws of this state; if domiciled abroad: "(a) To the parties entitled, either as personal representatives or directly upon adjudications in the foreign domicile so showing, the same to be fully authenticated, including proof of the law governing the same. "(b) That when distribution cannot be made to the parties entitled thereto under the law of the foreign domicile as set forth in paragraph (a) above, then distribution may be made to the duly accredited consular agent of the foreign domicile, upon proof of credentials filed; the bal- ance so awarded to him on his acceptance as consular representative to be held and transmitted, under general treaties, conventions, consular rights or international law, as duly recognized and as existing between the United States and the country of the decedent's domicile. "Fourth, that powers of attorney by claimants, whether as personal representatives or as direct heirs, in the decedent's foreign domicile, cannot be recognized unless they are accompanied by proof of a foreign adjudi- cation in the domicile of the decedent of the laws governing the same and of his right thereto. "Fifth, that no suggestion here covers the question argued to a great extent of the right of consuls or consular agents to be granted letters of administration, since no such question actually arises in any of the class of estates submitted. "Sixth, that in the absence of proof of foreign domicile or of the rights of parties to take, or failure to ascertain who they are, with failure to present the adjudication and proofs of the laws herein set forth, and on the failure or refusal of consular representatives to accept residues of balances for transmission, where no other disposition is made, distribution must be suspended pending further proceedings.'' Estates of Foreign Intestates, 68 P. L. J- i. 350. SHORT TITLE. Section 26. This act shall be known and may be cited as the Intestate Act of 191 7. 351. WHEN ACT SHALL GO INTO OPERATION. Section 27. This act shall take effect on the thirty-first day of December, 1917, and shall apply to the estates, real and per- sonal, of all persons dying intestate on or after said day. As to the estates, real and personal, of all persons dying before that day, the existing laws shall remain in full force and effect. The orphans' court possesses no jurisdictional authority to appoint appraisers to appraise and set aside estate property claimed as and for a $5,000.00 allotment for the surviving spouse of an intestate dying before INTESTATE ACT— Sectons 27-28 249 December 31, 1917; the power of the said Court being limited and con- fined to appointing substitute appraisers to take the place of estate ap- praisers appointed by the personal representatiye of the estate but who are unable to act. Hilton's Estate, i Wash. 125. 352. REPEALER. Section 28. This Act of Assembly is intended as an entire and complete system for the descent and distribution of the estates, real and personal, of persons dying intestate. The follow- ing acts and parts of acts of assembly are hereby repealed as respectively indicated, but so far only as relates to the estates, real and personal, of any person or persons dying intestate on or after the thirty-first day of December, 1917. The repeal of the first section of an act shall not repeal the enacting clause. Sections 3 to 13 inclusive and 18 of an act entitled "An Act directing the descent of intestates' real estates, and distribution of their personal estates, and for other purposes therein men- tioned,'' passed April 19, 1794, 3 Sm. L. 143, absolutely. Sections 5, 6 and 7 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, absolutely. An act entitled "An Act for the settlement of the estates of intestates, where some of the heirs reside out of the state," ap- proved March 13, 1815, P. L. 173. An act entitled "An Act relative to escheated estates," ap- proved January 21, 1819, P. L. 25, absolutely. An act entitled "A supplement to an act entitled 'An Act relative to escheated estates,' passed the twenty-first of January, eighteen hundred and nineteen," approved April 6, 1833, P. L. 207, absolutely. An act entitled "An Act relating to the descent and distribution of the estates of intestates," approved April 8, 1833, P. L. 315, absolutely. Section 9 of an act entitled, "A supplement to an act, entitled 'An Act relative to the LeRaysville Phalanx,' passed March, Anno Domini one thousand eight hundred and forty-seven, and relative to obligors and obligees, to secure the right of married women, in relation to defalcation, and to extend the boundaries of the borough of Ligonier," approved April 11, 1848, P. L. 536, in so far as it relates to the distribution of the personal es- 250 INTESTATE ACT— Section 28 tate of a deceased married woman, and section 10 of said act, absolutely. Section 2 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, absolutely, and section 3 of said act in so far as it relates to inheritance. Section 5 and the proviso to Section 7 of an act entitled "An Act relating to certain duties and rights of husband and wife, and parents and children," approved May 4, 1855, P. L. 430, absolutely. An act entitled "An Act to legitimate children born out of law- ful wedlock," approved May 14, 1857, P. L. 507, in so far as it relates to inheritance. An act entitled "An Act permitting illegitimates to inherit from each other in certain cases," approved June 5, 1883, P. L. 88, absolutely. An act entitled "An Act to facilitate the proof and record of the title of real estate vested in the heirs of certain intestates," approved June 20, 1883, P. L. 131, absolutely. An act entitled "An Act providing for the manner in which estates of intestates shall be distributed, where the distributees stand in the same degree of consanguinity to the intestate," approved June 30, 1885, P. L. 251, absolutely. An act entitled "An Act relating to the mode of inheriting from, through, or by, a child or children adopted according to law, and being a supplement to an act, entitled 'An Act relating to certain duties of husband and wife, and parents and children,' approved the fourth day of May, one thousand eight hundred and fifty-five," approved April 13, 1887, P. L,. 53, absolutely. The proviso to Section i of an act entitled "An Act amending section seventh of an act, entitled 'An act relating to certain duties and rights of husband and wife, and parents and children,' approved the fourth day of May, Anno Domini one thousand eight hundred and fifty-five, providing that married men or women, in case of drunkenness or profligacy of husbands or wives, may consent to the adoption of their children," approved May 19, 1887, P. Iv. 125, absolutely. An act entitled "An Act relating to estates of intestates, pro- viding that children and descendants of deceased grandparents shall represent such deceased grandparents whenever grand- INTESTATE ACT— Suction 28 251 parents are entitled as next of kin to intestates," approved May 25, 1887, P. L. 261, absolutely. The first proviso of Section i of an act entitled "An Act relating to the adoption of any person as an heir," approved May 9, 1889, P. L. 168, absolutely. An act entitled "An Act to amend the third section of the 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 the twenty-seventh day of April, Anno Domini one thousand eight hundred and fifty-five, provid- ing that illegitimate children shall take their mother's name, and she and her mother, and they and their issue, shall be capable to take or inherit from each other," approved June 14, 1897, P. L. 142, in so far as it relates to inheritance. An act entitled "An Act to allow legitimate and illegitimate children, born from the same mother, dying without children, to inherit real and personal property from each other, in exclusion to the grandmother of the illegitimate child or children, as though they had been born in lawful wedlock," approved June 10, 1901, P. L. 551, absolutely. Sections 2, 3 and 4 of an act entitled "An Act to regulate and define the legal relations of an illegitimate child, or children, its or their heirs, with each other and the mother and her heirs," approved July 10, 1901, P. L. 639, absolutely. An act entitled "An Act to amend an act, entitled 'An Act to regulate and define the legal relations of an illegitimate child or children, its or their heirs with each other and the mother and her heirs, approved the tenth day of July, Anno Domini one thousand nine hundred and one; and applying and extending it to all cases, now pending, where the estate of such illegitimate or mother has not been actually paid to and received by collateral heirs or the Commonwealth," approved March 26, 1903, P. L. 70, absolutely. The proviso to Section i of an act entitled "An Act to amend an act, entitled 'An act amending section seventh of an act, entitled "An Act relating to certain duties and rights of husband and wife and parents and children," approved the fourth day of May, Anno Domini one thousand eight hundred and fifty-five, providing that married men or women, in case of drunkenness or profligacy of husbands or wives, may consent to the adoption of their children,' " approved April 22, 1905, P. L. 297, absolutely. 252 INTESTATE ACT— Section 28 An act entitled "An Act to amend section one of an act, en- titled 'An Act relating to the descent and distribution of the estates of intestates,' passed and approved April eighth, one thou- sand eight hundred and thirty-three, defining and declaring the interest that shall descend to and vest in the surviving husband or vi^ife of such intestate," approved April i, 1909, P. L. 87, absolutely/ Sections 3 and 4 of an act entitled "An Act relating to the adoption of adult persons as heirs," approved June i, 191 1, P. L. 539, in so far as they relate to inheritance and devolution under the intestate laws. An act entitled "A supplement to an act, entitled 'An Act to amend section one of an act, entitled "An Act relating to the descent and distribution of the estates of intestates," passed and approved April eighth, one thousand eight hundred and thirty- three, defining and declaring the interest that shall descend to and vest in the surviving husband or wife of such intestate,' ap- proved April first. Anno Domini one thousand nine hundred and nine," approved July 21, 1913, P. L. 872, absolutely. An act entitled "An Act amending article two of section one of an act, entitled 'An Act relating to the descent and distribution of the estates of intestates,' approved the eighth day of April, one thousand eight hundred thirty-three, as amended, by further regulating the appointment and number of appraisers," approved July 21, 1913, P. L. 875, absolutely.^ An act entitled "An Act to amend an act, approved the fourth day of May, one thousand eight hundred and fifty-five, entitled 'An Act relating to certain duties and rights of husband and wife and parents and children,' " approved May 3, 1915, P. L. 234, absolutely. An act entitled "An Act amending section one of an act, en- titled 'An Act amending section seven of an act, entitled "An act relating to certain duties and rights of husband and wife, and parents and children," approved the fourth day of May, Anno Domini one thousand eight hundred and fifty-five ; providing that married men or women, in case of drunkenness or profligacy of husbands or wives, may consent to the adoption of their children,' approved the nineteenth day of May, Anno Domini one thousand eight hundred and eighty-seven," approved May 28, 191 5, P. L. 580, in so far as it relates to inheritance and devolu- tion under the intestate laws. INTESTATE ACT— Section 28 253 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, so far as relates to the estates, real and per- sonal, of any person or persons dying intestate on or after the thirty-first day of December, 1917. ^S'ee Hilton's Est. i Wash. 125, wherein the Court held : "In Section 28, this language appears : " 'The following acts and parts of acts of assembly are hereby repealed as respectively indicated, — but so far only as relate to the estates, real and personal, of any person or persons dying intestate on or after the 31st of December, 1917.' "Later on in said Section 28, the Acts of April i, 1909, P. L. 87 and July 21, 1913, P. L. 87s, are cited for repeal under the said conditions specified earlier in said section. It is thus seen that by its very terms the Intestate Act of 1917, P. L. 429, is to apply to estates of those only who died on or after December 31, 1917; and that, conversely, the said statute is not to apply to the estates of those who died prior to that date (in which last category falls the estate of Wallace J. Hilton under consideration). As to the Hilton Estate, therefore, the said Intestate Act of 1917, P. L. 429, expressly says that the laws as they existed prior to December 31, 1917, shall remain and apply in full force and effect. "We have hereinbefore reached the conclusion that the Wallace J. Hilton Estate is to be controlled and governed, so far as the $5,000.00 allotment is concerned, by the said Act of July 21, 1913, P. L. 875, which, as to estates of all persons dying prior to December 31, 1917, remains expressly unrepealed by the Intestate Act of 1917, P. L. 429. Certainly, had the Legislature intended that the procedure relative to spouses' allotments prescribed by the Intestate Act of 1917, P. L. 429, should apply to and govern as well, estates of persons dying before December 31, 1917, they would have had the language of the Act so state and they would not have employed the quoted language of Sections 27 and 28." THE FIDUCIARIES ACT of June 6, 1917, (P. L. 447) PRELIMINARY NOTE BY COMMISSION. In this voluminous Act, the Commissioners have endeavored to arrange in one connected and systematic statute the law re- lating to the administration and distribution of the estates of decedents and of minors, and of trust estates, and particularly the jurisdiction, powers and procedure of the orphans' court rela- tive to fiduciaries. The intricacy of the subject is greater than anyone will readily believe who has not taken the trouble to examine it himself ; and the labors of the Commissioners have been principally directed to the revision and consolidation of existing statutes and the repeal of those that have become obsolete, rather than to the introduction of novel legislation. The changes recommended are for the most part designed to simplify and harmonize the pro- cedure, which, in many instances, has become complicated by the passage of numerous statutes relating to specific matters of detail. In Section 6, the Commissioners have revised the law relative to the estates of persons presumed to be dead on account of absence for seven years or more from their last domicile, a sub- ject that has become very complicated by the numerous statutes which have been adopted in the past thirty years, and stands in great need of revision. In Section 11, a method of compelling the filing of an inventory has been provided, and the fees of appraisers of decedents' es- tates have been regulated. In Section 12, the widow's and children's exemption has been increased from $300 to $500, and the whole procedure regulated. In Section 14, the rents of real estate accruing after the death of the owner have been made assets for the payment of his debts, when the personal estate is insufficient, and the procedure has been regulated. 2S4 FIDUCIARIES ACT 255 In Section 15, the lien of decedents' debts has been shortened from two years to one year unless continued by proper pro- ceedings, and the law as to judgments against decedents and their representatives has been revised. Section 16 contains the statute law relative to sales and mort- gages of real estate for the payment of debts. Very little change is made, but the phraseology has been altered and the pro- visions of the law rearranged in more symmetrical order. Sales for payment of debts are now governed by several Acts of As- sembly, some of the provisions of which are obsolete or inappro- priate to present conditions. The procedure is regulated and the law as to confirmation of sales and the discharge of liens is par- ticularly provided for. In Section 18, the procedure in cases of contracts of decedents for the sale or purchase of real estate is more clearly regulated. In Section 21, the law on the subject of interest on legacies is defined, particularly in reference to interest on legacies bequeathed in trust. In Section 22, the Commissioners recommend a general rule upon the subject or apportionment of all periodical payments directed by will. In Section 23, a change is recommended where there is a bequest of personal property or the proceeds of real estate for life and the life tenant does not enter security, in consequence of which a trustee is appointed. Such trustee, according to the revised act, undertakes only the usual responsibility of a trustee and is not to be considered as an insurer of the fund. In Section 24, the jurisdiction of the orphans' court for the collection or enforcement of all legacies is made exclusive. In Section 31, the power of testamentary trustees and guardians to lease real estate is extended and regulated. In Section 32, elections by fiduciaries in behalf of their wards or cestuis que trust are provided for. In Section 40, the orphans' court is empowered to authorize fiduciaries to settle or compromise litigation or disputes. In Section 41, the power of fiduciaries to invest trust funds is extended. In Section 42, more extensive powers are given to fiduciaries to incorporate or join in the incorporation of their decedent's busi- ness. 256 FIDUCIARIES ACT— Contents In Section 46 and other sections, the term for the settlement of a decedent's estate is shortened to six months instead of one year from the date of the grant of letters testamentary or of ad- ministration ; and in the same section power is expressly given to the orphans' court to have examined the assets of estates in the hands of fiduciaries. The Commissioners have also provided for express notice of the fiHng of accounts to be given to all persons who claim to be interested. In this section the law is made more specific as to the place where trustees' accounts should be filed ; and the jurisdiction over testamentary trustees is made exclusive in the orphans' court. In Section 49, more specific provisions are made as to distribu- tion of estates. In Section 53, the law as to the removal of fiduciaries is codified and revised, and summary power is given to the court in cases that seem to require it. In Section 58, the powers of foreign fiduciaries are revised. In Section 59, the law on the subject of the appointment of guardians is recast and codified. In Section 60, the law on the subject of trustees durante absentia is revised in connection with the law as to the estates of presumed decedents. TABLE OF CONTENTS. The Fiduciaries Act Section l. Definition of "fiduciary," Section 2. Granting of letters testamentary and of administration, (a) Jurisdiction of register, (b) Letters not to be granted after twenty-one years, except on order of court, (c) Who entitled to letters of administration, (d) Petition for letters, Section 3. Letters of administration c. t. a. and d. b. n., (a) Granting letters c. t. a., (b) Granting of letters d. b. n. c. t. a., (c) Granting of letters d. b. n., (d) Powers of executors extended to admin- istrators, c. t. a., (e) Powers of administrators d. b. n., I9I7 Pamphlet Laws Section Number Herein 447 457 353 354 355 355 4S8 356 357 358 459 359 359 360 361 362 363 FIDUCIARIES ACT— Contents 257 1917 Pamphlet Laws Section 4. Granting of letters durante minoritate, durante absentia, and pendente lite, Section 5. Acts of administrator or executor not to be impeached although will, or later will, be discovered, 460 Section 6. Presumed decedents, (a) Petition and advertisement, (b) Petition and advertisement as to ancillary letters, (c) Hearing by court, or by examiner and master; competency of witnesses, 461 (d) Decree that presumption of death is made out, and advertisement thereof, (e) Confirmation or vacation of decree (f) Effect as to real estate ; title of purchaser ; bond by party selling or conveying, 462 (g) Administration and distribution of estate, (h) Refunding bonds ; appointment of trustee on refusal, neglect, or inability to give bond 463 (i) Vacation of decree; effect as to acts done, (j) Intervention in actions by persons erron- eously supposed to be dead; opening of judgments, (k) Procedure where will or later will is produced after letters have been granted, 464 (1) Citation by register to parties interested,. . 465 (m) Probate of will, or later will; revocation of letters, and granting of new letters,.. (n) Payment of costs, Section 7. Oaths of executors and administrators,.. (a) Form of oath, (b) Oath by officer of corporation, 466 Section 8. Bonds of administrators and executors, (a) Form of bond of administrator (b) Bond of administrator c. t. a., 467 (c) Form of bond of nonresident executor,. . (d) Grant of letters without bond; liability of register of wills, 468 (e) Bond of executor or administrator of de- ceased fiduciary, ( f ) Exceptions to bonds, Section 9. Bonds of fiduciaries in general 469 (a) Suits on bonds, (b) Reduction of bonds, (c) Expense of obtaining bond of corporation, 17 Section Number Herein 364 36s 366 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 380 381 382 382 383 384 38s 386 387 388 388 389 390 258 FIDUCIARIES ACT— Contents 1917 Pamphlet Laws Section 10. Advertisement of granting of letters Section 11. Inventory and appraisement, 470 (a) Inventory to be filed in thirty days (b) Procedure to compel filing of inventory, (c) Bonds, notes, other evidences of debt, all claims and demands for money, and other personal property to be included in in- ventory, (d) Debt due by executor not released by appointment, and to be included in in- ventory, (e) Rents due to tenant for life to be included in inventory, (f) Arrearages of rent-charge, or other rent or reservation, to be included in in- ventory, (g) Estates in land for life of another to be included in inventory, 471 (h) After-discovered property to be inven- toried, (i) Appraisement; oath of appraisers, (j) Notice of appraisement; return, (k) Compensation of appraisers, Section 12. Widow's and children's exemption, (a) Claim and appraisement or setting apart ; appointment of appraisers by court (b) Liens for purchase-money of real estate not to be affected, 472 (c) Oath and compensation of appraisers (d) Advertisement or notice; confirmation and filing of appraisement; payment of expenses of advertisement or notice,.. (e) Exemption to minor children 473 1. Duty of executor or administrator to act, 2. Guardian or executor or administrator to select property to be set aside,.... (f) Where estate does not exceed five hundred dollars, (g) Claim of exemption out of real estate appraised at more than amount of claim ; appraisement and confirmation; payment of excess ; sale on failure to pay, (h) Title to vest on payment of excess; dis- tribution of proceeds of sale, 474 Section Number Herein 391 392 392 393 394 395 396 397 398 399 400 401 402 403 403 404 40s 406 407 407 408 409 410 411 FIDUCIARIES ACT— Contents 259 1917 Pamphlet Laws (i) Widow or children entitled to rents, in- come, interest, and dividends from death of decedent; deduction of proportionate part upon failure to pay excess value of real estate, (j) Procedure where real estate lies in another county, or is divided by a county line, . . (k) Recording and registry of decree confirm- ing appraisement of real estate, 47s Section 13. Payment of debts of decedent (a) Order of payment, (b) Payment not to be compelled within six months, Section 14. Rents of real estate to be assets for pay- ment of debts when personal estate insuffi- cient ; collection by executor or admin- istrator, 476 Section 15. L,ien of debts of decedent (a) Lien limited to one year unless action brought, indexed, and duly prosecuted to judgment, (b) Debts not due within one year; pro- cedure to acquire and continue lien (c) Provisions of clause (a) to be retroactive; saving clause 477 (d) Indexing by prothonotary ; filing cer- tified copy of praecipe in other counties, (e) Executions on judgments obtained against executors or administrators ; scire facias to surviving spouse, heirs, et cetera, (f) Judgments not liens at death to be treated as debts not of record; method of continuing lien, (g) Judgments which are liens at death to be liens for five years from death; revival, 478 (h) Effect of section as to mortgages, and bonds secured thereby, (i) Executions on judgments obtained in decedent's lifetime, (j) Distribution of proceeds of sheriff's sale, (k) Stay of execution until application to orphans' court for sale of real estate,. .. . 479 (1) Order on executors or administrators to apply to orphans' court Section Number Herein 412 413 414 415 41S 416 417 418 418 419 420 421 422 423 424 42s 426 427 428 429 26o FIDUCIARIES ACT— Contents 1917 Pamphlet Laws Section 16. Sales and mortgages of real estate for the payment of debts of decedents, (a) Duty of executor or administrator to sell real estate where personal estate and rents are insufficient to pay debts (b) Power of orphans' court to authorize sale or mortgage of real estate, 1. On application of executor or adminis- trator, 2. On appHcation of executor or admin- istrator, or of creditor, (c) Inventory, statement of real estate, and account of debts to be filed 480 (d) Refunding mortgages, (e) Appointment of master, (f) Bond of person carrying out decree,.... (g) Public notice of sale, 481 (h) Securing unpaid purchase-money, (i) Acknowledgment of deeds and mort- gages, (j) Removal or incapacity of fiduciary 1. Before conveyance or mortgage 2. Where there are co-fiduciaries, 482 3. Before sale, 4. Effect of sale, deed, or mortgage,. . . . 5. Revocation of letters, or removal of fiduciary, after sale, 483 6. Irregularity or defect in appointment, (k) Conveyance or mortgage where fiduciary is purchaser or mortgagee, (1) Real estate in other counties, 1. Real estate in county other than that the orphans' court of which has juris- diction of accounts, 2. Real estate divided by county line, . . 484 (m) Private sales, 1. When authorized 2. Public notice, 485 3. Objections to sale, (n) Return and confirmation, (o) Discharge of liens (p) Purchaser not bound to see to applica- tion of purchase-money, 486 Section Number Herein 430 430 431 432 433 434 435 436 437 438 439 440 441 441 442 443 444 445 446 447 448 448 449 450 450 451 452 453 454 455 FIDUCIARIES ACT— Contents 261 1917 Pamphlet Laws Section 17. Proceedings to relieve real estate from lien of debts, (a) Petition, (b) Hearing by court or by master; notice, (c) Decree; bonds by persons entitled to real estate, Section 18. Contracts of decedents for sale or pur- chase of real estate (a) Petition, notice, hearing, and decree of specific performance, (b) Remedy in orphans' court exclusive,.... 487 (c) Indexing of petition in judgment index, (d) Execution and effect of deed; decree for payment by representatives of deceased vendee, (e) Enforcement of parol contracts, (f) Execution of deed where grantee is execu- tor or administrator, 488 Section 19. Notice of devise or bequest to corpora- tion Section 20. Abatement of legacies, Section 21. When legacies shall be payable; inter- est on legacies Section 22. Apportionment of income 489 Section 23. Security by one entitled to income of proceeds of sale of decedent's real estate, and by legatee for life, for term of years, or other limited period, or on condition or contingency; appointment of trustee on refusal, neglect, or inability to enter security, Section 24. Remedy for collection of all legacies to be exclusively in the orphans' court,.... 490 Section 25. Procedure to enforce payment of legacies charged on land (a) Petition, notice, decree for payment; sale and distribution of proceeds; decree to enforce payment of interest (b) Procedure where land lies in another county or is divided by a county line, . . 491 (c) Bond by legatee or other person entitled to benefit of decree for payment, Section 26. Discharge of residuary estate from an- nuities or legacies payable in future, . . (a) Petition, (b) Citation, hearing, appointment of master, 492 Section Number Herein 456 456 457 4S8 459 459 460 461 462 463 464 46s 466 467 46a 469 470 471 471 472 473 474 474 475 262 FIDUCIARIES ACT— Contents 1917 Pamphlet Laws (c) Decree directing setting apart or invest- ing of so much f residuary estate as will secure payment of annuities or legacies (d) Discharge of remaining estate; appeals, 493 (e) Custody of portion of estate set apart; accounts, surplus income (f) Reduction of fund set apart, 494 (g) Rights to ultimate enjoyment of resid- uary estate set apart not to be affected, Section 27. Discharge of real estate from lien o_f legacies and other charges, (a) Where persons to whom payment is due cannot be found 1. Jurisdiction; petition, and notice,.... 2. Hearings; ascertainment of amount of charge ; payment into court ; re- cording of decree, 495 (b) Where charge has been paid, or is pre- sumed to be paid, 1. Jurisdiction 2. Petition, 496 3. Citation, 4. Hearing, decree, recording of decree, (c) Cases not provided for in clauses (a) and (b), (d) Distribution of moneys paid into court, 497 (e) Payment of costs, (f ) Appeals, Section 28. Powers of executors as to real estate, (a) Mere authority to sell the same as a de- vise to sell, (b) Private sales, conveyances or leases au- thorized, (c) Powers not given to any person by name or description deemed to be given to executors, but to be exercised under control of orphans' court (d) Powers of surviving, acting, or remain- ing executors, or administrators c. t. a., as to real estate, 498 Section 29. Fiduciaries may make conveyances through attorneys, Section 30. Purchasers of real estate from executors or trustees not bound to see to the appli- cation of the purchase-money, Section Number Herein 476 477 478 479 480 481 481 482 483 483 484 48s 486 487 488 489 490 491 491 492 493 494 495 496 FIDUCIARIES ACT— Contents 263 1917 Pamphlet Laws Section 31. Leases of real estate by testamentary trustees and guardians, 499 Section 32. Elections by guardians or trustees (a) Election to take real estate in lieu of proceeds, (b) Election to take money instead of real estate in which it is directed to be in- vested 500 (c) Validation of previous elections, Section 33. Procedure where real estate is devised at an appraisement to be made, or to ex- ecutor at a valuation, (a) Jurisdiction ; petition, (b) Appointment of appraisers; notice, 501 (c) Oath and compensation of appraisers,.. (d) Return and confirmation of appraise- ment ; appeals, (e) Citation to accept or refuse; decree ad- judging real estate to devisee or to other persons; recording and registry of decree, (f) Where real estate is devised to executor at a valuation, S02 (g) Validation of previous decrees 503 Section 34. Designation of curtilage of building de- vised (a) Jurisdiction ; petition, (b) Appointment and compensation of com- missioners, (c) Notice of proceedings of commissioners ; report, confirmation ; recording and registry of decree; title of devisee,.... (d) Payment of costs, 504 Section 35. Abatement and survival of actions ; substitution of executors and adminis- trators ; pleadings as to assets, (a) Personal actions, except for slander and libel, not to abate, (b) Executors and administrators may sue and be sued in personal actions, except for slander and libel, (c) Pending actions of ejectment to enforce payment of purchase-money, (d) Executors or administrators may sue or distrain for arrearages of rent-charge, or other rent or reservation, due to de- cedent, 505 Section Number Herein 497 498 498 499 500 501 SOI 502 503 S04 SOS 506 507 S08 S08 S09 510 S" 512 SI2 513 SI4 SIS 264 FIDUCIARIES ACT— Contents 1917 Pamphlet Laws (e) Executors or administrators of life ten- ant may sue for proportion of rent due up to date of death, (f) Executors or administrators may be sub- stituted in pending actions, and may issue execution on judgment in favor of decedent, (g) Scire facias to bring in executors or ad- ministrators of deceased party; con- tinuance, (h) Service of scire facias when executors or administrators reside without the county, (i) Actions not to abate by death, dismissal, removal, resignation, or renunciation of fiduciaries, 506 (j) Failure to plead any matter relative to assets, or to reply thereto, not to be deemed an admission (k) Abatement of action by failure to take out letters in deceased plaintiff's estate. Section 36. Statute of limitations to run against debt falling due to estate of decedent after his death, although letters have not been granted 507 Section 37. Suits against fiduciaries who do not reside in county the court of which has jurisdiction of their accounts Section 38. Suits by fiduciaries against cofiduciary. Section 39. Revival of judgment against executor or administrator of judgment creditor. Section 40. Compromise by fiduciaries of claims against estate, or questions as to will or distribution 508 Section 41. Investments by fiduciaries, (a) Legal investments 1. Investments in debt of United States, Commonwealth of Pennsylvania, or municipalities of the Commonwealth, or on real securities, or in ground- rents within the Commonwealth, .... 2. Investments in other real estate within the Commonwealth, or in debts of other States, or counties or cities thereof, 509 3. Fiduciary not liable for loss on such investments, Section Number Herein S16 517 S18 S19 520 S2I 522 523 524 525 526 527 528 528 528 529 S30 FIDUCIARIES ACT— Contents 265 1917 Section Pamphlet Number Laws Herein (b) Expense of procuring guaranty of in- vestments, 331 Section 42. Organization of corporation to carry on decedent's business, 532 (a) Property of estate may be contributed in return for stock, whether or not the will authorizes carrying on business,.... S32 (b) Approval of orphans' court necessary; procedure, 510 533 (c) How stock shall he held; voting stock, 534 Section 43. Voting of stock in corporations by fiduciaries, 535 Section 44. Liability of executors and adminis- trators for interest 511 536 (a) When liable, 536 (b) Rate of interest, 537 Section 45. Same person shall not receive com- missions as executor and trustee, 538 Section 46. Accounts of executors, administrators, and trustees, 539 (a) Accounts of executors and administrators to be filed in six months ; executor or administrator may be cited to account at end of six months 539 (b) Orphans' courts may appoint examiners to make examinations of assets in hands of fiduciaries 540 (c) Claimants who have notified executors, administrators, or trustees to be entitled to receive actual notice of filing of accounts S4i (d) Register's duties as to transmission and advertising of accounts; expenses,.... 512 542 (e) Orphans' court may require additional notice where parties in interest reside out of the State, or where other circum- stances render further notice expedient, 543 (f) Accounts not to be confirmed unless it appears that notice has been given,.... 513 544 (g) Where trustees' accounts shall be filed; exclusive jurisdiction of orphans' court, 545 (h) Triennial accounts of trustees 546 (i) Notice of filing of trustees' accounts,.. 547 Section 47. Audits 548 (a) Rules of courts as to publication of notices of audits, 548 266 FIDUCIARIES ACT— Contents 1917 Pamphlet Laws (b) (c) Section 48. Section 49, (a) (b) (c) (d) (e) (f) Section 50, (a) (b) Section 51. (a) (b) Section 52. (a) (b) Audits by court in counties having sep- arate orphans' court, 5I4 Audits by court or auditors in counties not having separate orphans' court,.... Review of accounts, adjudications, and auditors' reports, , Distribution of estates, Distribution not to be compelled within six months; after six months, distribu- tion may be ordered on petition of creditor or any person interested, Distribution without audit of account at risk of executors or administrators; distribution under order of court to pro- tect executors or administrators, and to be without refunding bonds, 515 Distribution of estates not exceeding three hundred dollars, Creditor failing to present claim at audit not entitled to share in distribution,.. Distribution in kind, 516 1. Court may direct distribution of un- converted securities, 2. Duty of fiduciary to whom such dis- tribution is made; application to court for authority to sell, Distribution by employer of wages due decedent, not exceeding seventy-five dollars, , Refunding bonds, Fiduciary who has given bond may re- quire bonds from persons to whom he makes payment, Limitation of actions on refunding bonds, 517 Transcripts of balances due by fiduciaries, Filing transcripts in common pleas and effect thereof ; executions Satisfaction and discharge of judgments on transcripts, 5181 Discharge of fiduciaries and sureties,.. Conditions of discharge, Discharge of one or more of joint fiduciaries Section Number Herein 549 SSO 551 552 552 553 554 555 556 556 557 558 559 559 560 561 S6i 562 563 563 564 FIDUCIARIES ACT— Contents 267 1917 Pamphlet Laws Section 53. Removal of fiduciaries, (a) Grounds for removal, 1. Waste or mismanagement; probable insolvency; failure to file inventory or account, 519 2. Lunacy, drunkenness, or weak-minded- ness 3. Sickness, or physical or mental in- capacity, 4. Removal from the State, S- Mismanagement or misconduct by guardian, 6. Failure to pay over principal or in- come, or to comply with any order of court, 7. Neglect or abuse of trust, by trustee for religious, educational, or chari- table purposes, 8. Probable jeopardy of interests of estate, 9. When all, or a majority, of the ces- tuis que trust, having life estate, desire removal on any substantial ground (b) Petition, citation, orders, and decrees,.. (c) Summary removal in cases of emergency, 520 (d) Decree removing one fiduciary not to afifect co-fiduciaries (e) Enforcement of orders and decrees; suits by succeeding fiduciary, Section 54. Requirement of security by executor, or additional security by other fiduciary ; proceedings by sureties to require counter security, for discharge of surety, or for removal of fiduciary, 521 (a) Proceedings to require additional security, 1. Decree ; attachment, 2. Removal on failure to comply with decree, (b) Proceeding by surety to compel giving of counter-security, (c) Proceeding by surety for discharge,.... 522 Section 55. Requirement of statement of invest- ments on ten days' notice ; accounting ; removal Section Number Herein 56s 56s S66 567 568 569 570 S7I 572 573 574 575 576 577 578 579 579 579 580 581 582 583 268 FIDUCIARIES ACT— Contents 1917 Pamphlet Laws Section 56. Appointments of trustees to fill va- cancies, 523 (a) Partial vacancy in testamentary trust,... (b) Entire vacancy in testamentary trust, (c) Appointment of trustee where executor declines to act, or is discharged; ap- pointment of separate trustees for sev- eral parties S24 (d) Jurisdiction of orphans' court to be ex- clusive, Section 57. Nonresident fiduciaries; corporations of other States as fiduciaries, (a) Powers; appointment of nonresidents and foreign corporations as fiduciaries, (b) Appointment of resident co-trustees 525 Section 58. Foreign fiduciaries (a) Foreign executors, administrators, and trustees (b) Foreign guardians, (c) Powers of foreign fiduciaries in general; authentication of copies of wills, or other authority, 526 (d) Powers of foreign executors and trus- tees as to sale of real estate, (e) Revival of judgments by foreign execu- tors and administrators, 527 (f) Awards to foreign executors and admin- istrators, (g) Powers of foreign guardians, trustees, committees, and other fiduciaries, as to removal of property, 1. Proof of appointment, and qualifica- tion of fiduciary 2. Discharge of resident fiduciary, .... 528 Award to foreign trustee, when all bene- ficiaries for a term of years or for life have removed from the State, 529 Guardians, Power of orphans' court to appoint; ef- fect of appointment (b) Persons of same religious persuasion as parents to be preferred as guardians of the person, (c) Executor, administrator, or trustee not to be appointed guardian 530 (h) Section 59. (a) Section Number Herein 584 584 585 S86 587 S88 588 589 590 S90 591 592 593 594 595 596 596 597 598 599 599 600 601 FIDUCIARIES ACT— Contents 269 (d) (e) (f) (g) (h) (i) 0) (k) Section 60. (a) (b) (c) Section 61. Section 62. Section 63. 1917 Pamphlet Laws Parent not to be appointed guardian; where estate is one hundred dollars, or less, award may be made to natural guardian or person maintaining minor. Appointment of guardians of estates of minors residing out of the Common- wealth Appointment of guardians for minors in service of United States, or whose ap- pearance is physically impossible or un- necessarily expensive Bonds of guardians, Inventory to be filed by guardian, 531 Allowance for support and education of minor, Accounts of guardians, 1. Triennial accounts, 2. Guardian or next friend may petition to have accounts audited, 3. Contents of petition, 532 4. Notice of fiHng of account and peti- tion, 5. Audit of account; appointment of guardian ad litem; confirmation,.... 6. Payment of costs, 7. Appeals and rehearings, 8. Final accounts 533 Notice to guardian of proceeding affect- ing interests of minor; appointment of guardians ad litem, Trustees durante absentia, Petition and appointment, Bond, inventory, and accounts 534 Duties of trustee when absent person returns, or dies, within seven years, or where letters testamentary or of adminis- tration are issued on the ground of his presumed death, Immaterial variation from forms not to vitiate proceedings, Short title section Repealer 534.59 Section Number Herein 602 603 604 605 606 607 608 608 609 6io 611 612 613 614 61S 616 617 617 618 619 620 622 623 270 FIDUCIARIES ACT— SecTioN i 353- TITLE. An Act Relating to the administration and distribution of the estates of decedents and of minors, and of trust estates; including the appointment, bonds, rights, powers, duties, liabilities, accounts, discharge and removal of executors, administrators, guardians and trustees, herein designated as fiduciaries; the adminis- tration and distribution of the estates of presumed decedents ; widow's and children's exemptions ; debts of decedents, rents of real estate as assets for payment thereof, the lien thereof, judgments and executions therefor, sales and mortgages of real estate for the payment thereof, and the discharge of real estate from the lien thereof ; contracts of decedents for the sale or purchase of real estate; legacies, including legacies charged on land ; the discharge of residuary estates and of real estate from the lien of legacies and other charges ; the appraisement of real estate devised at a valuation ; the ascer- tainment of the curtilage of dwelling houses or other buildings devised; the abatement and survival of actions and the sub- stitution of executors and administrators therein, and suits against fiduciaries ; investments by fiduciaries ; the organiza- tion of corporations to carry on the business of decedents ; the audit and review of accounts of fiduciaries; refunding bonds ; transcripts to the court of common pleas of balances due by fiduciaries ; the rights, powers and liabilities of non- resident and foreign fiduciaries ; the appointment, bonds, rights, powers, duties and liabilities of trustees durante absentia ; the recording and registration of decrees, reports and other pro- ceedings, and the fees therefor ; appeals in certain cases ; and also generally dealing with the jurisdiction, powers and pro- cedure of the orphans' court in all matters relating to fiduci- aries concerned with the estates of decedents. The Fiduciaries Act became effective on the first moment of the day on which it purports to have been signed by the Governor, June 7, 1917. Ruber's Est., 27 Dist. 25. 354. DEFINITION OF "FIDUCIARY." Section i. Be it enacted by the Senate and House of Repre- sentatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the FIDUCIARIES ACT— Sections 1-2 (a) 271 same, That as used in this act, the term "fiduciary" shall include executors, administrators, guardians and trustees, whether domiciliary or ancillary, subject to the jurisdiction of the or- phans' court of any county of this commonwealth. Note. — This is suggested by Section i of the Act of May 3, 191S, P. L. 218, 6 Purd. 7038, which relates only to the reduction of bonds. It is inserted in the new act in order to avoid repeating in many places the words "'executors, administrators, guardians and trustees." 355. GRANTING OF LETTERS TESTAMENTARY AND OF ADMINISTRATION— JURISDICTION OF REGISTER. Section 2. (a) Letters testamentary and of administration shall be grantable only by the register of wills of the county within which was the family or principal residence of the decedent, at the time of his decease ; and if the decedent had no such resi- dence in this commonwealth, then ancillary letters testamentary or of administration shall be grantable only by the register of the county where the principal part of the goods and estate of such decedent within this commonwealth shall be. Note. — This is derived from the first part of Section 6 of the Act of March 15, 1832, P. L. 13S, i Purd. 1074, which was new in that act. The language as to a decedent having no residence in the commonwealth has been modified so as to show that it refers to the granting of ancillary letters. See Sayre's Exrs. v. Helme's Exrs., 61 Pa. 299. The provision that "letters testamentary and of administration shall be grantable only by the register of wills of the county within which was the family or principal residence of the decedent at the time of his decease," refers to residence, not domicile. Therefore, his "family or principal residence," in any conflict between two counties as to the juris- diction of the register of wills, must mean the place where he actually resides with his family; and this is purely a question of fact. In dismissing exceptions the Court, per Gest, J., held : — "The argument of the learned counsel for the exceptant is based on the theory that the decedent's domicile was in Philadelphia, and that the respondent failed to show that the decedent intended to remain in Mont- gomery County ; but this is aside from the real question. The act clearly refers to residence, not domicile; it says, 'the family or principal resi- dence.' A man can have but one domicile, though he may have any number of residences, therefore, his 'family or principal residence,' in this conflict between two counties as to the jurisdiction of the register of wills, must mean the place where he actually resides with his family, and this was undoubtedly in Glenside. It may be admitted that in some of the de- cisions the words residence and domicile are used as synonymous, but 272 FIDUCIARIES ACT— Section 2 (o), (b), (c) strictly, in cases of administration, succession, etc., the law of domicile applies when questions arise as to the application of the law of different states, or of this State and that of a foreign country. Such was the case in Barclay's Estate, 259 Pa. 401, relied on by the exceptant, and Lowry's Estate, 6 Pa. Superior Ct. 143. And as domicile depends not only upon the actual residence of the person, but upon his intention of retaining it as his home, or of changing it, great weight is properly attached to his declara- tion of intention, or to the facts from which such intention may be reason- ably inferred; Dicey on Domicile, chap. II; Guier v. O'Daniel, i Binn. 349; Bumpus's Estate, 23 Dist. R. 654. Some of the distinctions that may exist between domicile and residence are considered in Taney's Estate, 97 Pa. 74, and Raymond v. Leishman, 243 Pa. 64, and though many perplexing questions may arise from these distinctions, this is not one of them." Blessing's Est., 29 Dist. 3, 68 P. L. 78; 15 Del. 224, affirmed in 267 Pa. 380. 356. LETTERS NOT TO BE GRANTED AFTER TWENTY-ONE YEARS EXCEPT ON ORDER OF COURT. (&) No letters testamentary or of administration shall in any case be originally granted upon the estate of any decedent, after the expiration of twenty-one years from the day of his decease, except on the order of the orphans' court, upon due cause shown. Note. — This is Section 21 of the Act of 1832, i Purd. 1075, which cor- responded to the latter part of Section 20 of the Commissioners' Draft. The first part of that section of the draft provided that letters should not issue until the expiration of five days after the death. The twenty-one year provision was new in the Act of 1832. The Com- missioners remarked that it did not apply to cases where an administration commenced had become vacant. In Hanbest's Estate, 21 Pa. Super Ct. 427, however, it is held that the word "originally" in the second line of the section is synonymous with "in the first instance," and that the section applies not only to cases in which no letters of administration have been previously granted, but also to cases in which prior letters have been issued. The words "testamentary or" have been inserted, and "orphans' court" substituted for "register's court." See form 74. 357. WHO ENTITLED TO LETTERS OF ADMINIS- TRATION. (c) Whenever letters of administration are by law necessary, the register having jurisdiction shall grant them in such form as the case shall require, to the widow, if any, of the decedent, or to such of his relations or kindred as by law may be entitled FIDUCIARIES ACT— Section 2 (c) 273 to the residue of his personal estate, or to a share or shares therein, after payment of his debts; or he may join with the widow in the administration, such relations or kindred, or such one or more of them, as he shall judge will best administer the estate, preferring always, of those so entitled, such as are in the nearest degree of consanguinity with the decedent, and also preferring males to females; and in case of the refusal or in- competency of every such person, to one or more of the prin- cipal creditors of the decedent applying therefor, or to any fit person at his discretion/ Provided, That if such decedent was a married woman, her husband shall be entitled to the adminis- tration, in preference to all other persons: And provided further, That in all cases of an administration with a will annexed, where there is a general residue of the estate bequeathed, the right to administer shall belong to those having the right to such residue, and the administration in such case shall be granted, by the reg- ister, to such one or more of them as he shall judge will best administer the estate.^ Note. — This is Section 22 of the Act of March 15, 1832, P. L. 13S, i Purd. 1080, corresponding to Section 21 of the Commissioners' Draft. It was intended as an arrangement and condensation of the material pro- visions of the Statute of 21 Henry VIII, c. 5, with the addition of a pro- viso, derived from Section 5 of the Act of March 21, 1772, i Sm. L. 389, giving the husband the right to administer, and a clause giving residuary legatees the right to letters with the will annexed. See form 39. iWhere the register of wills granted letters of administration to a person not a relative, heir, legatee, creditor, nor a resident of the county in which the decedent lived, the letters will be revoked. A register of wills may under the Act of June 7, 1917, P. L. 447, Sec- tion 2, clause (c), in the absence of kin or creditor, grant letters of administration "to any fit person, at his discretion,'' but his action does not depend on the literal interpretation of clause (c) ; his discretion must be legal, founded on good reason, and not a wilful or arbitrary exercise of power. Boyko's Est, 49 Pa. C. C. 495 ; 21 Lack. Jur. 161. The Act of June 7, 191 7, P. L. 447, cannot be construed as permitting a minor to administer an estate and there is nothing in the act to indicate that a minor has any right of election. When no persons qualified to act apply for administration on the estate of a decedent, the register must exercise his judgment in the selection of a fit person. 18 274 FIDUCIARIES ACT— Section 2 (c), (d) The official counsel of a register of wills is not disqualified to act as administrator of an estate, by appointment of the register for whom he is counsel. The Court, per Henry, P. J., specially presiding, held : "It is very evident that only those relatives or next of kin who may be entitled to the residue of the personal estate of the decedent are the ones who are entitled to administration or to elect an administrator. This provision of the Act of Assembly could not possibly be construed as permitting a minor or a non compos mentis to administer an estate and there is nothing in the Act to indicate that a minor has any right of election. In the absence of persons qualified to act applying for admin- istration, the Register must exercise his own good judgment in the selection of some fit person "While it is true that the Register of Wills could not act as adminis- trator, yet, under the Act of Assembly this is incident to his office and could not be construed as extending to his counsel or business or official associates. Possibly there would be greater reason why an executive officer of a corporation should not act as administrator where that cor- poration is the guardian of the minor inheriting the estate." Hanshaw's Est, 22 Dauphin 178 (1919). ^This provision does not apply where the testator asks "the Court to appoint the executors." Shontz's Est. 71 Super. 295. See Sharpless' Est., 28 Dist. 746; 15 Del. 16; 20 Luz. 161. 358. PETITION FOR LETTERS. (d) Every application to any register of wills for the issuance of letters testamentary or of administration shall be in the form of a petition, duly verified by affidavit, setting forth the residence and citizenship and the place, day and hour of death of the de- cedent, the estimated value of his property, real and personal, the location of his real property, and, in the case of an intestacy, the names and residences of the surviving spouse, if any, and of the next of kin of the intestate, together with an averment that the persons named are the surviving spouse and all the next of kin of the intestate. In the case of applications for letters testamen- tary, such applications shall set forth zvhether the testator has married and zvhether any children have been born to such testator since the execution of the will offered for probate} Note. — This is a new clause, drafted in accordance with the existing practice in Philadelphia and Allegheny Counties and perhaps in others. As the practice is understood not to be uniform throughout the State, the Commissioners have considered it proper to recommend it as a general law. The provision as to the statement of citizenship of the decedent has been FIDUCIARIES ACT— Sections 2 (rf)-3 (a), (&) 275 added to cover cases of alien decedents, where questions as to notice to consuls, etc., may arise. This clause supplies Sections i and 2 of the Act of May 15, 1874, P. L. 194, I Purd. 1075, which provide that all persons applying for letters shall file an affidavit as to the day and hour of the death, which shall be filed by the register. Those sections are therefore recommended for repeal. ^As amended by Act of March 24, 1921 (P. L,. 51). See forms i, 10, 12, 13, 35, 40, 42. Where letters of administration have been granted to a niece and nephew, there being no children, and without information to the register of other nieces and nephews, the register may revoke said letters in the interest of all concerned, and to correct an honorable misunderstanding. Sec. 2, clause d. Act of 1917, P. L. 4^7, is mandatory and every applica- tion for letters should be by petition, setting forth, inter alia, names and residences of all the next of kin. Sharpless' Est., 28 Dist. 746, 15 Del. 16, 20 Luz. 161. 359. LETTERS OF ADMINISTRATION C. T. A. AND D. B. N.,— GRANTING LETTERS C. T. A. Section 3. (a) Whenever the executors named in any last will and testament shall all refuse or renonuce the trust and exe- cution thereof, the register having jurisdiction as aforesaid may receive the probate of such will, and grant letters of administra- tion with it annexed, to the persons by law entitled thereto. Note.— This is Section 18 of the Act of 1832, i Purd. 1074, which corre- sponded to Section 17 of the Commissioners' Draft, and was intended to provide "for cases of intestacy by the renunciation of the trust of execution by all the executors." The Commissioners referred to the Statute of 21 Henry VIII, c. 5, Section 3, Rob. Dig. 250, as mentioning this case. See forms 12, 42. 360. GRANTING OF LETTERS D. B. N. C. T. A. (&) Whenever a sole executor, or the survivor, of several ex- ecutors, shall die, leaving goods or estate of his testator unadmin- i-stered, the register having jurisdiction shall, notwithstanding such executor may have made his last will and testament, and appointed an executor or executors thereof, grant letters of administration of all such goods and estate, in the same manner as if such executor had died without having made any testament or last will ; and the executor of such deceased executor shall in no case be deemed executor of the first testator. 276 FIDUCIARIES ACT— Section 3 (6), (c), (d) Note. — This is Section 19 of the Act of March 15, 1832, P. L. I3S, i Purd. 1074, which corresponded to Section 18 of the Commissioners' Draft. By the common taw, the trust of the sole executor might be transmitted to his executor, and the same was true as to the survivor of several execu- tors. The Act of March 12, 1800, 3 Sm. L. 433, Section 3, enabled admin- istrators with the will annexed to execute the powers conferred upon executors by will in relation to lands. The Commissioners remarked : "This act having thus provided for the cases in which the powers of the executor of an executor are most important, it is proposed by this section to abolish his powers altogether * * * vVe will only add that conveni- ence in the administration of the two estates and the security of creditors and others interested in different rights recommend the adoption of the section under consideration." See form 13. 361. GRANTING OF LETTERS D. B. N. (c) In all cases where the administration of the estate of any decedent shall become vacant, by reason of death or of any decree of the orphans' court, or from any other cause, the register having jurisdiction shall, on proper proof being made of the fact, grant new letters, in such form as the case shall reqviire, to the person or persons by law entitled thereto. Note. — This is Section 20 of the Act of 1832, i Purd. 1075, which corre- sponded to Section 19 of the Commissioners' Draft, and was new in the Act of 1832. It is now changed by providing for vacancies caused by death or otherwise, and by substituting "'proper proof being made of the fact" for "being certified thereof, under the seal of the said court." 362. POWERS OF EXECUTORS EXTENDED TO AD- MINISTRATORS C. T. A. (rf) All and singular the powers, duties and liabilities of execu- tors are hereby extended to administrators with a will annexed. Note. — This is Section 67 of the Act of February 24, 1834, P- L. 73, i Purd. 1 100, which was introduced in that act to avoid the necessity of particular provisions in the various sections. After "singular," the words "the provisions of this act relative to" have been omitted. It seems unnecessary to re-enact Section i of the Act of February 7, 1814, P. L. 44 (6 Sm. L- 102), which provides: — "All the powers and authorities vested in administrators with the will annexed, in case of death, refusal, renouncing or dismissal of the executor or executors, by the act to which this is supplementary, be and are hereby extended to, and vested in administrators with the will annexed, in those cases where no executor or executors shall have been appointed, to be FIDUCIARIES ACT— Section 3 (d), (e) 277 exercised as fully as any executor or executors might have done if ap- pointed." An administrator with a will annexed has the same powers and duties of an executor who made a contract for the sale of real estate, and can carry out such contract and give a good and legal title, since he has given bond at the time of qualifying. Kiefer's Adm'r. v. Jones, 50 Pa. C. C. 269, (s. c. sub nom Daniel v. Jones), 30 Dist. 633. 363. POWERS OF ADMINISTRATORS D. B. N. (e) Administrators de bonis non, with or without a will an- nexed, shall have power to demand and recover from their prede- cessors in the administration, or their legal representatives, all moneys, goods and assets remaining in their hands due and be- longing to the estate of the decedent, and to commence and prose- cute actions upon promises made to such predecessors in their representative character, and to take and defend appeals and sue forth and defend writs of scire facias and writs of execution upon judgments, obtained by or in the name of the executors or administrators into whose place they may have come, and also to proceed with and perfect all unexecuted executions, which may have been issued thereon at the instance of such predecessors : Provided, That when any suit shall have been brought by an ad- minstrator de bonis non for the recovery of moneys, goods or assets, remaining in the hands of his predecessors, or their legal rpresentatives, before they shall have settled their final adminis- tration account, the court in which such action shall be brought shall have power to stay the proceedings therein, on the defend- ants' filing such an account in the register's office of the proper county within a reasonable time to be fixed by said court, until said account shall have been finally settled and confirmed; and on the production of a certified copy of said account, so settled and confirmed, the court in which such suit shall be pending is hereby authorized and required to render judgment for the bal- ance which shall thereby appear to be due to either party. Note. — This is Section 31 of the Act of 1834, i Purd. 1112, which corre- sponded to Section 32 of the Commissioners' Draft, except that the draft did not include the proviso. "Take and defend appeals" has been inserted and "of error'" omitted. The provision as to time for filing the account is changed. The Act of 1834 makes it "twenty days previous to the term next succeeding that to which the writ was returnable." "Confirmed" has been substituted for "adjusted." 2/8 FIDUCIARIES ACT— Sections 3 (0-4 Section 32 of the draft considerably enlarged the provisions of the Stat- ute of 17 Car. II, Chapter 8, Section 11, and was intended to remedy a defect in the law. The Commissioners referred to the decision in Allen V. Irwin, i S. & R. 549, that an administrator d. b. n. could not maintain assumpsit against the administrators of a deceased executor. 364. GRANTING OF LETTERS DURANTE MINORI- TATE, DURANTE ABSENTIA AND PEN- DENTE LITE. Section 4. The register of wills having jurisdiction may, when the circumstances of the case require, grant to any fit person or persons letters of administration durante minoritate, durante absentia, or pendente lite, security to be entered as in other cases of administration. Note. — This is a new section, giving express sanction to powers now exercised by registers as to letters durante absentia and pendente lite, and superseding Section 23 of the Act of March 15, 1832, P. L. 135, i Purd. 1083, which provides : — "Whenever all the executors named in any last will and testament, or all the persons entitled as kindred to the administration of any decedent's estate, shall happen to be under the age of twenty-one years, it shall be lawful for the register to grant administration as aforesaid to any other fit person or persons, subject nevertheless to be terminated at the instance of any of the said minors who shall have arrived at the full age of twenty- one years.'' In a dispute over the probate of a will, the grant of letters of admin- istration pendente lite by the register of wills was held void where on petition the orphans' court had directed the register to certify the record for adjudication, but prior to the service of said order an order had been made by the register but the oath had not been taken or bond given until after such service. The Fiduciaries Act of 1917, P. L. 447, requires that the oath must be administered and a bond given before letters of adminis- tration can issue. "Jurisdiction is in the register to grant letters of administration gener- ally, including letters pendente lite under special circumstances and the pro- ceeding is well defined. Section 4 of the Fiduciaries Act of 1917 provides that the register 'may, when the circumstances of the case require, grant to any fit person or persons letters * * * pendente lite, security to be entered as in other cases of administration.' But Section 7, Par. a, of said act, provides that before the register issue letters, he shall administer an oath in the pre- scribed form : Section 8, Par. a, provides that upon his grant of letters he shall take a bond as there required. If he grant such letters (Par. d of said section) without these prerequisites 'such letters shall be void.' Letters are not to issue unless bond has been previously given, Moore v. Rahm, 2 S. & R. 375 ; in such a case by the very terms of the law the FIDUCIARIES ACT— Sections 4-5-6 (o) 279 letters are void, Bradley v. The Commonwealth, 31 Pa. 522; failure to take the oath at the time may not per se void the grant of letters, but failure to give the bond has a very different effect, Beeber's Appeal, 99 Pa. 596; the register having made his selection, Hawkins' Orphans' Court Practice, Section 28, the next steps are the oath, and the bond, 'and thereupon issue letters of administration.' "The register's appointment as of October 19th was not a grant of letters, it had no status as such by law or in practice." Henry's Est., 30 Dist. 945, 69 P. L. J. TiT, 35 York 122. 365. ACTS OF ADMINISTRATOR OR EXECUTOR NOT TO BE IMPEACHED ALTHOUGH WILL OR LATER WILL, BE DISCOVERED. Section 5. All such acts of administration as would be in due course of law, in case of intestacy, if done in good faith and without notice of a will, and all such acts of any executor as would be in due course of law, if the will under which letters testamentary were issued were the last will of the testator, and if done in good faith and without notice of a later will, shall not be impeached, though a will, or a later will, should afterwards be dis- covered and established. Note. — This Section 68 of the Act of 1834, i Purd. iioo, enlarged to in- clude acts of an executor under a former will in case a later will is dis- covered. The Commissioners of 1830 remarked that this section was "in conformity with the obvious rules of equity and justice, and with the jurisprudence of some of our sister states." 366. PRESUMED DECEDENTS,— PETITION AND AD- VERTISEMENT. Section 6. (a) Whenever, hereafter, any person shall be pre- sumed to be dead, on account of absence for seven or more years from the place of his or her last domicile, whether the same be within this commonwealth, or in any other state, territory or pos- session of the United States, or in any foreign country, any per- son entitled under the last will and testament of such presumed decedent or under the intestate laws to any share in his or her estate within this commonwealth, or the escheator for the com- monwealth, may present a petition to the orphans' court of the county of such person's last residence or, where the presumed decedent was a non-resident of this commonwealth, in the or- phans' court of the county where the greater part of his property within this commonwealth may be situated, setting forth the facts which raise the presumption of death. The said court, if satis- 28o FIDUCIARIES ACT— Section 6 (a), (&) fied as to the person who would be entitled to letters testamentary or of administration were the presumed decedent in fact dead, shall cause to be advertised, in a newspaper published in said county, once a week for four successive weeks, together with such other advertisement as the court, according to the circumstances of the case, shall deem expedient or advisable, the fact of such application, together with notice that on a day certain, whch shall be at least two weeks after the last appearance of said advertise- ment, the court, or master appointed by the court for that pur- pose, will hear evidence concerning the alleged absence of the pre- sumed decedent, and the circumstances and duration thereof. Note. — This is a combination of Section i of tlie Act of June 24, 1885, P. L. iSS, I Purd. 107s, and Section i of the Act of May 28, 1913, P. L. 369, 5 Purd. 5886. The latter act is followed in providing for application in the first in- stance to the orphans' court. This seems to be the better practice, as there is no apparent reason for applying to the register and having him at once certify the matter to the court. The section has been altered so as to include cases where the last domi- cile was outside the commonwealth. This is now covered, but as to ancil- lary letters only, by Section 9 of the Act of May 28, 1913, P. L,. 373, 5 Purd. 5884, 5886. The provisions have been extended to cases where the presumed de- cedent has left a will, which is produced in the first instance. The case of production of a will after letters of administration have been granted is covered by clause (^) of this section (see 376 infra). A provision for additional advertisements has been inserted. "The Act of 1855 as well as the Fiduciaries Act provides a complete system for the distribution of estates of supposed decedents with a view to protect and safeguard the rights of all parties concerned." Twining's Est., 37 Montg. 116. 367. PETITION AND ADVERTISEMENT AS TO AN- CILLARY LETTERS. (b) Whenever, hereafter, letters of administration or letters testamentary shall have been granted in any other state, territory or possession of the United States, or in any foreign country, on the estate of a resident thereof, presumed to be dead, on account of absence for seven or more years from the place of his last domicile, it shall be lawful for the person or persons, or trust company, to whom such letters have been granted, to present a petition to the orphans' court of the county within this common- wealth in which all, or the greater portion, of the estate of said FIDUCIARIES ACT— Section 6(6), (c) 281 presumed decedent may be found, accompanied by a complete exemplification of the record of the grant of such letters, praying for the grant of ancillary letters testamentary or of administra- tion upon the estate of such presumed decedent, situate, owing or belonging to him within this commonwealth. The said court, if satisfied that the person or trust company proposed in such pe- tition would be a fit person or company to whom such letters might be issued, shall cause publication to be made, in the man- ner and for the period as provided in clause (a) of this section, of the fact of such application, together with notice that on a day certain, which shall be at least two weeks after the last appear- ance of said advertisement, the court, or a master appointed for the purpose, will hear evidence concerning the alleged absence of the presumed decedent, and the circumstances and duration thereof. Note. — This is Section i of the Act of May 28, 1913, P. L. 373, S Purd. 5884, somewhat condensed and with slight changes in wording so as to make the language uniform with that of the last preceding clause. The definition of "the proper county" contained in Section 8 of the Act of 1913 is embodied in the present clause ; and the provision for application to the register of wills is omitted. Provision is made for the grant of ancillary letters to others than the domiciliary executor or administrator. Cross-reference is made to the last preceding clause as to manner and time of advertisement. Section 2 of the Act of 1913, S Purd. 5885, providing for affidavits by residents of the ward, etc., where the presumed decedent was last known to reside, is recommended for repeal. 368. HEARING BY COURT, OR BY EXAMINER AND MASTER; COMPETENCY OF WITNESSES. (c) At the hearing in either of the cases provided for in the preceding clauses of this section, the orphans' court shall take such legal evidence as shall be offered, for the purpose of ascer- taining whether the presumption of death is established, or may appoint a master to take such testimony and report his findings thereon ; and no person shall be disqualified to testify by reason of his or her relationship as husband or wife to the presumed decedent, or of his or her interest in the estate of the presumed decedent. Note. — This embodies the provisions of Section 2 of the Act of June 24, 1885, P. L. iSS, I Purd. 107s, Section 2 of the Act of May 28, 1913, P. L. 369, 5 Purd. 5886, and Section 3 of the Act of May 28 1913 P. L. 373) 5 Purd. 5885. The provision for the appointment of a master is new. 282 FIDUCIARIES ACT— Section 6 id), (e) 369. DECREE THAT PRESUMPTION OF DEATH IS MADE OUT, AND ADVERTISEMENT THERE- OF. (d) If satisfied, upon such hearing, or upon the report of such master, that the legal presumption of death is made out, the court shall so decree, and the court may determine in such decree the date when such presumption arose, and shall forthwith cause to be published for three successive weeks, in the manner provided in clause (a) of this section, a notice requiring the presumed de- cedent, if alive, to produce in court satisfactory evidence of his continuance in life, such evidence to be produced within twelve weeks from the date of the last publication of the notice in the case of an original application for the grant of letters, and within four weeks from such date in the case of an application for an- cillary letters. Note. — This is a combination of Section 3 of the Act of June 24, 1885, P. L. ISS, I Purd. 1076, Section 3 of the Act of May 28, 1913, P. L. 369. 5 Purd. 5886, and Section 4 of the Act of May 28, 1913, P. L. 373, 5 Purd. 5885, the four weeks' limitation in the case of ancillary letters being de- rived from the latter act. The provision as to determining the date when the presumption arose is new. 370. CONFIRMATION OR VACATION OF DECREE. (e) If, within said period, evidence satisfactory to the orphans' court of the continuance in life of the presumed decedent shall be presented, said decree shall be vacated ; but if such evidence shall not be forthcoming, such decree shall be confirmed absolutely, and it shall be the duty of the court to order the register of wills to issue letters of administration to the person thereto entitled, or to receive for probate the last will and testament of such presumed decedent and, if duly proved, to admit the same to probate and issue letters testamentary thereunder; and the said letters, until revoked, and all acts done in pursuance thereof and in reliance thereupon, shall be as valid as if the presumed decedent were really dead. Note. — This is a combination of Section 4 of the Act of June 24, 1885, P. L. 155, I Purd. 1076, Section 4 of the Act of May 28, 1913, P. L. 369, s Purd. 5886, and Section s of the Act of May 28, 1913, P. L. 373, 5 Purd. 588s. The word "vacated" has been substituted for "annulled" in the third line; and the provision as to probate is new. FIDUCIARIES ACT— Suction 6 (/), (g) 283 371. EFFECT AS TO REAL ESTATE; TITLE OF PUR- CHASER; BOND BY PARTY SELLING OR CONVEYING. (/) Whenever the said court shall enter a decree that the pre- sumption of death of any person has been established, and such decree shall be confirmed absolutely, the real estate of the pre- sumed decedent shall pass and devolve as in the case of actual death, and the persons entitled by will or under the intestate laws may enter and take possession. In case the presumption of death is thereafter rebutted by adequate proof that the presumed decedent is in fact alive, and said decree is vacated, said real estate shall revert to him as fully as though such decree had never been entered, subject, however, to payment of the costs and expenses of the proceedings and advertisement aforesaid. Such decree, when confirmed absolutely, may be recorded in the office of the recorder of deeds of the proper county in the deed-book, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the grantees' index under the names of the persons taking the real estate, and, if so recorded, and the persons taking the real estate sell or mortgage the same, the pur- chaser or mortgagee shall take a good title, free and discharged of any interest or claim of the presumed decedent ; but the per- sons taking such real estate shall not sell, convey or mortgage the same or any part thereof without first giving bond, in an amount to be fixed by the orphans' court and with sureties to be approved by said court, conditioned to account for and pay over to the presumed decedent, in case he is actually alive, the value of the real estate sold or conveyed, or, in case of the making of a mort- gage, to pay the amount of the mortgage and interest thereon, or, in case of a foreclosure of such mortgage, to account for and pay over the value of the real estate mortgage. When the presumed decedent shall have been absent and unheard of for twenty-one years, such bond shall be taken without sureties. Note.— This is Section 5 of the Act of May 28, 1913, P. L. 369, S Purd. 5886, with some changes in phraseology, and altered so as to require bond for the value of the property on any conveyance, instead of merely for the proceeds of sale, and to cover the case of a mortgage of the property. 372. ADMINISTRATION AND DISTRIBUTION OF ESTATE. (g) The executor or administrator to whom letters have been issued upon the estate of a presumed decedent, as aforesaid, shall 284 FIDUCIARIES ACT— Section 6 (Soo. The deed had not been delivered, and the court made the above order, putting the property up at public sale. In the present case the appli- cation by Reuben was to have the property put up at public sale. We do not think the increase offered justifies the expense of a public sale. It may be necessary to formulate a rule of court upon this subject. It is certainly irregular to permit oral bids as was done in this case, and in Early's Estate." Mauch's Est., 47 Pa. C. C. 490, 67 P. L. J. 308, 33 York 45, 16 North. 405. 453. RETURN AND CONFIRMATION. (n) All public sales of real estate under the provisions of this section shall be subject to confirmation by the court; but in the case of private sales authorized or directed under the provisions of this section, no return or confirmation shall be necessary. Note. — This is a new section, introduced in order to make the practice uniform and free from doubt. Where authority is given to a fiduciary to make public sale of real es- tate, obviously the fiduciary should make return of his doings to the court and have the sale confirmed ; but the same reason would not apply where, as in the case of a private sale, the price and terms of sale and the name of the purchaser appear in the petition. The court having approved the sale and directed that it be carried out, it seems unnecessary for the fidu- ciary to report to the court and obtain a confirmation of what he was in- structed to do. 454. DISCHARGE OF LIENS. (0) All public or private sales of real estate under the provi- sions of this section shall have the effect -of judicial sales as to the discharge of liens upon the real estate so sold : Provided, That the court may decree a sale of the real estate freed and discharged from the lien of any mortgage otherwise preserved from discharge by existing law, if the holder of such mortgage, by writing filed in said court, shall consent to the sale being so made. Note. — The first part is declaratory of the existing law. As to the ef- fect of private sales for the payment of debts in discharging liens, see O'Brian v. Wiggins, 14 Pa. Superior Ct. 37. FIDUCIARIES ACT— Sections i6 (o), (p)-i7 (a), (&) 347 A public sale of real estate under the provisions of this act may well stand on the same footing as a sheriff's sale so far as the discharge of record liens is concerned; and a private sale of real estate for the payment of debts is by the terms of this section subject to equivalent formalities of procedure. The proviso is derived from Section 2 of the Act of May 19, 1893, P. L. no, I Purd. 1185. 455- PURCHASER NOT BOUND TO SEE TO APPLI- CATION OF PURCHASE MONEY. (p) Whenever a public or private sale of real estate shall be authorized or directed by any orphans' court under the provisions of this section, the person or persons purchasing the real estate so sold and taking title thereto in pursuance of the decree of the court, shall take such title free and discharged of any obligation to see to the application of the purchase money. Note. — This is a new section, modeled upon Section i of the Act of June 10, 191 1, P. L. 874, 7 Purd. 7703, which related only to sales under testamentary powers, and is the basis of Section 30 of the present draft. (See 496 infra.) The Act of 191 1 superseded Section 19 of the Act of February 24, 1834, P. L. 70, i Purd. 1122, which provided for payment of purchase money into court. 456. PROCEEDINGS TO RELIEVE REAL ESTATE FROM LIEN OF DEBTS,— PETITION. Section 17. (a) It shall and may be lawful for any executor, administrator, trustee, or any party interested in the real estate of any decedent, to present a petition to any court having jurisdiction of the settlement of such estate, setting forth all the particulars, and also that there are just and reasonable grounds for believing that said decedent left no debts not of record, and that it is de- sirable to have the real estate of said decedent relieved from any lien now given by law for such debts. Note. — This is Section 2 of the Act of June 8, 1893, P. L. 392, i Purd. 1108, except that, in the fourth Hne, "'a petition" is substituted for "his, her or their petition." 457. HEARING BY COURT OR MASTER; NOTICE. (b) Said court may hear and determine the same, or refer such petition to a master, whose duty it shall be to inquire diligently into the facts and circumstances alleged in such petition, and report the same to said court. The court may in its discretion direct such 348 FIDUCIARIES ACT— SecnoNs 17 (b), ic)-i8 (o) notices to be given of such application, by publication or otherwise, as it may deem necessary. Note. — This is Section 3 of the Act of June 8, 1893, P. L. 392, i Purd. 1 108, modified by omitting in the first line, after "court," the words "having jurisdiction as aforesaid" ; by omitting in the same line, after "same," the words "and shall have power" and inserting "or" ; by omitting "any" before "such petition" in the fourth hne ; by omitting "said" before "court" in the fifth hne ; and by omitting "either" after "application" in the sixth line. 458. DECREE; BONDS BY PERSONS ENTITLED TO REAL ESTATE. (c) It shall be the duty of said court, upon being fully satisfied as to the truth and justice of the matters alleged in any such peti- tion, to decree that the real estate of such decedent shall be held and enjoyed free and clear of any lien c' debts not of record of said decedent, and said court shall require the person or persons entitled to said real estate to enter bond, in such form and amount, and with or without sureties, as the court may in its discretion de- termine, conditioned for the payment by such person or persons of an amount sufficient to pay any debts of the decedent not of record, which may thereafter be proved and which would have been liens ujxin said real estate but for such decree. Note. — This is Section 4 of the Act of 1893, i Purd. 1108, modified by omitting "and application" after "petition," "any" before "such decedent," and "and direct" after "decree," and by adding the provisions in regard to bonds. Section 5 is a general repealer. 459. CONTRACTS OF DECEDENTS FOR SALE OR PURCHASE OF REAL ESTATE,— PETITION NOTICE, HEARING AND DECREE OF SPE- CIFIC PERFORMANCE. Section 18. (o) Where any person shall have, by contract in writing, agreed to sell and convey any real estate in this common- wealth, and died seized or possessed thereof, or of an undivided interest therein, or where any person shall have purchased, in writing, any real estate in this commonwealth and died without paying the purchase money therefor, it shall be lawful in all such cases for the executor or administrator of the deceased vendor, or for the vendor when the purchaser may have died, or for the purchaser of such real estate, or, when he has died, for his executor or administrator, or for any other person interested in such con- FIDUCIARIES ACT— Section i8 (o) 349 tract, to petition the orphans' court having jurisdiction of the ac- counts of the executor or administrator of the deceased vendor or the deceased purchaser, as the case may be, setting forth the facts of the case. After due notice of such petition to the persons in- terested, according to the nature of the proceeding, to appear in such court, on a day certain, and answer the petition, 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. Note.— This is Section 1 of the Act of April 28, 1899, P. L. iS7, i Purd. 743, with some slight changes in phraseology, and the insertion, in the fourth line, of the words "or of an undivided interest therein," to cover the provisions of Section i of the Act of February 8, 1848, P. L. 27, I Purd. 742. Section i of the Act of 1899, which apparently supplied Section 15 of the Act of February 24, 1834, P. L. 75, i Purd. 741, extended the remedy to cases of deceased purchasers and allowed the petition to be filed by any person interested in the contract. Sections 15 to 18 of the Act of 1834 were founded on the Acts of March 31, 1792, 3 Sm. L. 66; March 12, 1804, P. L. 271; and March 10, 1818, P. L. 183, which provided a remedy in the common law courts. The language of Section 18 (o) of the Fiduciaries Act as to persons dying "seized or possessed" of real estate, includes any person who was the owner thereof at the time of his death. "The contention of complainant's solicitor that this Act applies only where the deceased vendor dies 'possessed' of the real estate in question,, is untenable, for the language of said Section 18 (a) is 'seized or pos- sessed' and both conditions are thus included, and it is not questioned that the testator died seized of the real estate in question at bar. To die 'seized' means to die the 'owner of,' 'seized' being equivalent to 'owning.' In re: Stevens, 12 N. E. 759, (N. Y.). The bill discloses the fact that the vendor 'owned' or was 'seized' of the legal title at his decease and by virtue of the contract the complainant of the equitable title. We note in passing that uniformly the vendee under articles is the one in possession. "While it would seem therefore that we could rely solely upon the pro- visions of the Orphans' Court and Fiduciaries Acts just mentioned, in view of the insistence of complainant's solicitor contra, we will refer to other legislation and judicial decisions. The case of Gable v. Whiteside, 242 Pa. 188, holds under the Act of April 28, 1899, P. L. 157, which gave jurisdiction to the orphans' court to hear and decree specific performance of contracts for sale of real estate by vendor, deceased, at the time of the application, that the jurisdiction of said court is exclusive, and neither a common law court or a chancellor has jurisdiction in such case and re- versed such decree of a chancellor in equity below. The language of the Act of 1899 and of the eighteenth section (a) of that of 1917 is literally the same with the exception the latter broadens the subject matter of jurisdiction, and Gable v. Whiteside, ante, applies to the case at bar. 350 FIDUCIARIES ACT— Section i8 (a), (6) "Besides the mandate of the Statute of 21 March, 1806 (Purd. Dig. 271), providing that a statutory remedy if existing must be strictly pursued re- enforces the effect we must give to the two Acts of 1917 cited above. Should it be contended that the strictness of procedure thus required ap- plies only to the procedure once adopted, and not to the remedy or juris- diction, we are relieved of doubt by the decision of Whitney v. Jersey Shore, 266 Pa. 537, which holds that when a statutory remedy is provided whereby a legal right may be effectually settled, it is necessary to pursue the remedy and thus establish the right, and is peculiarly appropriate au- thority here from the fact that in both that case and at bar an injunction is prayed for, and it is apparent that relief in equity or otherwise by in- junction proceedings is not necessary for any purpose because of the re- quirements of (c) of the eighteenth section of the Fiduciaries Act (P. L. 487, of 1917) of the filing and indexing as lis pendens a certificate from the clerk of the orphans' court of the filing in the latter court the petition for specific performance. " * * * gy tiie jurisdiction of and proceedings in the orphans' court under the Orphans' Court and Fiduciaries Acts of 1917 cited above, all contraverted 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. 460. REMEDY IN ORPHANS' COURT EXCLUSIVE. (b) The aforesaid remedy, by petition to the orphans' court, shall hereafter be exclusive. Note. — This is a new provision, declaratory of the existing law. There was some conflict in the early opinions, and in Mussleman's Ap- peal, 6s Pa. 480, it was remarked by Mr. Justice Agnew that it was per- haps unfortunate that the Supreme Court, in Wetherill v. Seitzinger, 9 W. & S. 177, and in an unreported case, had decided that the Act of 1834 did not oust the jurisdiction of the common pleas under the Act of 1792. The Commissioners of 1830 reported: "We have transferred the juris- diction and power of giving relief in all cases within the act, from the common pleas to the orphans' court. The constitution and process of the latter tribunal seem to us peculiarly to fit it for all questions of chancery jurisdiction, and particularly for cases like that provided for in these sections, where various parties may be interested and various inquiries may be necessary, for the best prosecution of which, the powers of the common law courts are entirely inadequate. The course of proceedings suggested is believed to have the advantage of greater simplicity, and at the same time of greater efficacy than that at present authorized." This was a clear indication that the Commissioners of 1830 were of opinion that the earlier acts should be repealed. The matter is now set at rest by the decision of the Supreme Court, in Gable v. Whiteside, 242 Pa. 188, that the jurisdiction of the orphans' court is exclusive. The present commissioners, therefore, recommend that the FIDUCIARIES ACT— Section i8 (6) 351 acts giving jurisdiction to the court of common please be expressly re- pealed. The acts in question are as follows: March 31, 1792, 3 Sm. L. (^, Sec- tions 1-3, I Purd. 738, 739; March 12, 1804, (4 Sm. L. 158) P. L. 271. Section i, i Purd. 739; March 10, 1818 (7 Sm. L. 79), P. L. 183, Sections 1-3, I Purd. 740, 741; February s, 1821 (7 Sm. L. 357), P- L. 25, Section 2, I Purd. 739; and April 3, 1851, P. L. 305, Section 6, i Purd. 741. 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 (i) 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, 1899, P. L. 157. The adequate remedy provided by the Orphans' Court Act and the Fiduciaries Act of 1917, and its legislative exclusiveness of resort, pre- cludes any other remedy sought on the ground of greater convenience. The language of Section 18 (o) of the Fiduciaries Act as to persons dying "seized or possessed" of real estate, includes any person who was the owner thereof at the time of his death. "Passing to the demurrer itself, we note that by Section 9 (i) of the Orphans' Court Act of June 7, 1917, P. L. 372, jurisdiction of that court is given to 'embrace' — "The contention of complainant's solicitor that this act applies only 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 (a) 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 same section (6) (P. L. 487) it is provided that 'the aforesaid remedy by petition to the orphans' court shall hereafter be exclusive.' "The contention of complainant's solicitor that this act applies only where the deceased vendor dies 'possessed' of the real estate in question, is untenable, for the language of said Section 18 (a) is 'seized or pos- sessed' and both conditions are thus included, and it is not questioned that the testator died seized of the real estate in question at bar. To die "seized' means to die the 'owner of,' 'seized' being equivalent to 'owning.' In re Stevens 12 N. E. 759 (N. Y.) the bill discloses the fact that the vendor 'owned' or was 'seized' of the legal title at his decease and by virtue of the contract the complainant of the equitable title. We note in passing that uniformly the vendee under articles is the one in possession. "While it would seem therefore that we could rely solely upon the provisions of the Orphans' Court and Fiduciaries Acts just mentioned, in view of the insistence of complainant's solicitor contra, we will refer 352 FIDUCIARIES ACT -Suction i8 (b), (c) to other legislation and judicial decisions. The case of Gable v. White- side, 242 Pa. 188, holds under the Act of April 28, 1899, P. L. 157, which gave jurisdiction to the orphans' court to hear and decree specific per- formance of contracts for sale of real estate by vendor, deceased, at the time of the application, that the jurisdiction of said court is exclusive, and neither a common law court or a chancellor has jurisdiction in such case and reversed such decree of a chancellor in equity below. "The language of the Act of 1899 and of the i8th Section (o) of that of 1917 is literally the same with the exception the latter broadens the sub- ject matter of jurisdiction and Gable v. Whiteside ante applies to the case at bar. "Besides the mandate of the statute of 21 March, 1806 (Purd. Dig. 271), providing that a statutory remedy if existing must be strictly pursued reenforces the efFect we must give to the two Acts of 1917 cited above. Should it be contended that the strictness of procedure thus required applies only to the procedure once adopted, and not to the remedy or jurisdiction, we are relieved of doubt by the decision of Whitney v. Jersey Shore, 266 Pa. 537, which holds that when a statutory remedy is provided whereby a legal right may be effectually settled, it is necessary to pursue the remedy and thus establish the right, and is peculiarly appro- priate authority here from the fact that in both that case and at bar an in- junction is prayed for, and it is not necessary for any purpose because of the requirements of (c) of the 18th Section of the Fiduciaries Act of the filing and indexing as lis pendens a certificate from the clerk of the orphans' court of the filing in the latter court the petition for specific performance. * * * "By the jurisdiction of and proceedings in the orphans' court under the Orphans' Court and Fiduciaries Acts of 1917 cited above, all contro- verted 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. 461. INDEXING OF PETITION IN JUDGMENT IN- DEX. (c) When any petition for the specific performance of any such contract shall have been filed, it shall be the duty of the prothono- tary of the court of common pleas of the county in which such real estate or any part thereof shall lie, on being certified by the clerk of the orphans' court in which such petition shall have been filed of the fact of such filing, to enter the same upon the judgment index under the name of the respondent in such petition, and to certify the same as lis pendens in any certificate of search that he may be required to make by virtue of his ofifiice. Note. — This is a new provision, modeled upon Section i of the Act of June IS, 1871, P. L. 387, 4 Purd. 4060. See also the Act of April 22, 1856, P. L. 532, Section 2, 2 Purd. 1303. FIDUCIARIES ACT— Section 18(c), (d) 353 This provision seems preferable to that of Section 2 of the Act of April 28, 1899, P. L,. 157, I Purd. 743, which was a copy of Section 17 of the Act of 1834, I Purd. 742, and reads as follows : "The order or decree of the orphans' court for the specific performance of any such contract, in the cases hereinbefore mentioned, being certified by the clerk of such court, under the seal thereof, may be recorded in the office for the record- ing of deeds in the county where such real estate is situate, in like man- ner as deeds are recorded, and with the same effect." It is recommended that this section be repealed, since, if the decree is followed by a deed, which will itself be recorded, the recording of the decree seems unnecessary. The indexing of the petition, as provided by clause, (c), supra, will be more satisfactory. See Wykoff v. Manzer, 22 Lack. 308. 462. EXECUTION AND EFFECT OF DEED; DECREE FOR PAYMENT BY REPRESENTATIVES OF DECEASED VENDEE. (d) When such order or decree for the specific performance of any such contract shall have been made, and the purchase money paid or secured to be paid according to the terms of such contract, it shall be the duty of the vendor, or, when he shall be deceased, of his executors or administrators, to execute such deed of convey- ance as shall be directed by the court in conformity with the in- tention of such contract. Svich deed, being so made by such execu- tors or administrators, shall have the same force and effect to pass and vest the estate intended as if the same had been executed by the decedent in his lifetime. In the case of an order or decree for specific performance by the executors or administrators of a de- ceased vendee, the court shall enter a decree for payment by such executors or administrators, out of the estate of their decedent, of the amount of purchase money, with interest, if any, which decree may be enforced in like manner as other decrees of the orphans' court for the payment of money. The liability for the costs of such proceedings shall be in the discretion of the court. Note. — This is Section 3 of the Act of April 28, 1899, i Purd. 743, which was a copy of Section 18 of the Act of 1834, 1 Purd. 742, except for the insertion of the provision for conveyance by the vendor himself, intended to cover the case of a deceased vendee. The third sentence has now been added to cover the case where the decree of the court is for payment of purchase money by the estate of a deceased vendee. The provision as to costs is also new. 23 354 FIDUCIARIES ACT— Section i8 (0, (/) 463. ENFORCEMENT OF PAROL CONTRACTS. (e) Like proceedings may be had in all respects wherever any parol contract shall have been entered into by any person for the conveyance of real estate within this commonwealth and the pur-, chaser shall have died without fully executing such contract, or wherever any person may have made such parol agreement and died seized or possessed of such real estate and no sufficient pro- vision for the performance of such contract shall have been made by the decedent, in all cases where such parol contract shall have been so far executed that it would be against equity to rescind the same. Note. — This is Section 4 of the Act of April 28, 1899, i Purd. 743, ex- cept that the latter part, beginning "and no sufficient provision," follows the phraseology of Section 16 of the Act of 1834, i Purd. 742, from which Section 4 of the Act of 1899 was derived. The Act of 1899 reads, "and such parol contract may have been so far executed by possession, by improvement, or by partial payment of purchase money, that it would be against equity to rescind the same." The commissioners are of opinion that it is better to use the general language of the Act of 1834 rather than to attempt to define in this act the part performance which is sufficient to take a parol contract for the sale of land out of the Statute of Frauds. 464. EXECUTION OF DEED WHERE GRANTEE IS EXECUTOR OR ADMINISTRATOR. (/) In all cases of specific performance of contract which may hereafter be decreed by any orphans' court under the provisions of this section, where the party to whom the deed is to be made is an executor or administrator of the deceased vendor, the deed shall be made, as in other cases, by the co-executor or co-administrator, if there be one ; and if there be none, the court may make an order directing its clerk to execute such deed and deliver the same to the grantee therein named, upon such terms as the court shall see fit to require from the grantee, as executor or administrator of the decedent, for securing the faithful appropriation of the unpaid purchase money. Note. — This is Section 2 of the Act of April 9, 1849, P. L. Sn, i Purd. 742, changed by referring to "the provisions of this section" instead of Sections 15, 16 and 17 of the Act of 1834, and by providing that the deed shall be executed by the clerk of the orphans' court instead of by the sheriff. FIDUCIARIES ACT— Sections 19-20-21 355 465. NOTICE OF DEVISE OR BEQUEST TO CORPO- RATION. Section 19. Whenever a devise or bequest shall be made to any- corporate body, by any last will and testament, the executors thereof shall, within three months after they undertake the execu- tion of such will, make known, by letter addressed to such corpo- rate body, the nature and amount of such devise and bequest, to- gether with their names and places of residence. Note. — This is Section 66 of the Act of 1834, i Purd. iioo, changing "six months" to "three months," and omitting "public" before "corporate body." The main object of the section is notice to charitable corporations, and "public" might seem to restrict it to municipalities. The section was copied from Section 5 of the Act of April 6, I79ir 3 Sm. L. 20, which, however, imposed the duty of giving notice upon the register of wills. It is to be noted that Section 5 of the Act of 1791 is printed in 4 Purd. 4079 and in 3 P. & L. 6455, 6456, as still in force. It was evidently intended to be repealed by the Act of 1834, and should now be expressly repealed. 466. ABATEMENT OF LEGACIES. Section 20. If, after deducting the amount of debts of the tes- tator and the expenses of administration, the residue shall not be sufficient to discharge all the pecuniary legacies bequeathed, an abatement shall be made, in proportion to the legacies so given, unless it shall be otherwise provided by the will. Note. — This is Section 48 of the Act of February 24, 1834, i Purd. 1132, which was derived from the last clause of Section i of the Act of March 21, 1772, I Sm. L. 383. It is now modified by inserting after "debts" the words "of the testator and the expenses of administration," instead of the words "as aforesaid," which referred to Section 47 of the Act of 1834. 467. WHEN LEGACIES SHALL BE PAYABLE; IN- TEREST ON LEGACIES. Section 21. Legacies, if no time be limited by the will for the payment thereof, shall, in all cases, be deemed to be due and pay- able at the expiration of six months from the death of the testator. Interest on all pecuniary legacies, whether bequeathed directly or in trust, shall, unless a contrary intention appear by the will, begin to run from the expiration of one year from the death of the tes- tator, except that if the account of the executor be filed and con- firmed and distribution awarded before the end of such year, then interest on such legacies shall run from the date of the award : 356 FIDUCIARIES ACT— Section 21 Provided, That where a pecuniary legacy is bequeathed to or for the use of the widow of the testator or any child or descendant of the testator, or any person toward whom the testator in his life- time stood in loco parentis, or for the maintenance of any person, interest shall, unless a contrary intention appear by the will, begin to run from the date of the death of the testator. Note. — The first four lines of this section, down to the word "testator," are copied from Section 51 of the Act of 1834, i Purd. 1134, which was derived from Section 7 of the Act of March 21, 1772, i Sm. L. 383. The only change is to substitute "six months'' for one year. The remainder of the section is new. In this section, legacies are made payable at the end of six months, for the reason that in other sections of this act the commissioners have rec- ommended that executors and administrators should file their accounts at the expiration of this period after the issuance of letters. It is, however, recommended that interest should not begin to run on legacies until after the expiration of one year or an earHer award ; as in future most accounts will be filed at the end of six months from the grant of letters, the award of legacies will not be compHcated by the calculation of interest. Interest on legacies to or for the use of a widow or children or those to whom the testator stood in loco parentis, and legacies for maintenance, will, unless it be otherwise provided, run from the death of the testator ; but legacies bequeathed in trust for other persons will not carry interest from the date of death, the commissioners having here adopted the views of Judge Penrose in Twell's Estate, 11 D. R. 713. Under this section of the Fiduciaries Act, where a pecuniary legacy is bequeathed to or for the use of the widow of the testator, the interest, unless a contrary intention appear by the will, begins to run from the date of the death of the testator. A direction in a will to set aside a fund for the widow's use "as soon as possible after my death,'' does not denote a contrary intention on the part of the testator. Wagner's Est., 13 Berks 6, 30 Dist. 43S. "It was argued on behalf of Florence Hadfield that the testator in- tended the bequest of $25,000 to be preferred to the other legacies, because the testator directed that it be paid 'immediately.' The auditing judge can- not agree with this argument. Manifestly, the intention of the testator was to specify merely the time when the legacy was to be paid, not to give it priority over others in case of a deficiency of assets to pay all in full. Mur- doch's Appeal, 31 Pa. 47, was virtually a contest between the annuitants and the residuary legatees, and was decided on that ground. The onus is always on the legatee who claims a priority of payment, Bard's Estate, 58 Pa. 393, and a mere provision that the legacy is due immediately in- stead of at the expiration of a year is not sufficient proof of such intention. The same remark applies also to the widow's legacy of $25,000, also di- rected to be paid immediately. But under the Fiduciaries Act of 1917, Section 21, the legacies to the widow and to Florence Hadfield are entitled to interest from the date of death, because they are due immediately, and FIDUCIARIES ACT— Sections 21-22 357 besides, in the case of the widow, she is entitled to interest by the express provision of that section of the Fiduciaries Act." Per Gest, J., in Greaves' Est., 29 Dist. S77. Under this section of the Fiduciaries Act, interest begins to run on a legacy bequeathed in trust (with certain exceptions mentioned in the sec- tion) only from the expiration of one year from the testator's death; the act in this respect changed the existing law. Anderson, J., for the court in banc, held : "We agree with the auditing judge in this case that, under the law as it now stands, interest does not run on this trust legacy until either the end of the year or the time of the adjudication. And while it is clearly shown by the argument of except- ant's counsel that, prior to the Fiduciaries Act of June 7, 1917, P. L. 447, interest would be allowed in such a case as this, yet it must be borne in mind that at the drafting of this act the commissioners, with the knowl- edge that trust legacies carried interest from the date of the death, while pecuniary legacies did not, so changed the law as to make trust legacies, except under certain conditions, which do not exist in this case, bear in- terest, as above stated, not until the end of the year or the fihng of the adjudication. The change was made deliberately, and we are bound by the law as it now exists." Sterrett's Est., 29 Dist. 147. 468. APPORTIONMENT OF INCOME. Section 22. All annuities and all payments of rents, income, interest or dividends of any real or personal property, directed by any will to be made during the lifetime of the beneficiary, or for the life or lives of another person or persons, or for a term of years, shall, like interest on money lent, be considered as accruing from day to day, and shall be apportioned to the date of the death of such beneficiary or of such cestui que vie, or to the end of such term of years. Note. — This is a new section, modeled to some extent on the English Apportionment Act of 33 and 34 Victoria, Chapter 35. Under the existing law, income is apportionable in some instances and not in others. See the cases cited in 11 P. & L. Dig. of Decisions, col. 18690; Macllwain's Estate, 20 D. R. 1073. It is to be noted that Sections 7 and 30 of the Act of February 24, 1834 (Sections 11 (?) (see 396 supra) and 35 (e) (see 516 infra) of the pres- ent draft), were derived from the statute of 11 George II, Chapter 19, which was the first of a series of statutes in England, culminating in the above cited statute of Victoria, which provides that "all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly." The change now recommended by the commissioners was suggested by Thayeb, p. J., in Stewart v. Swaim, 7 W. N. C. 407. 358 FIDUCIARIES ACT— Section 23 469. SECURITY BY ONE ENTITLED TO INCOME OR PROCEEDS OF SALE OF DECEDENT'S REAL ESTATE; AND BY LEGATEE FOR LIFE, FOR TERM OF YEARS, OR OTHER LIMITED PE- RIOD OR ON CONDITION OR CONTINGENCY; APPOINTMENT OF TRUSTEE ON REFUSAL, NEGLECT OR INABILITY TO ENTER SE- CURITY. Section 23. Whenever any person is or shall be entitled to the income from the proceeds of the sale of a decedent's real estate, and whenever any personal property, or the increase, profits or dividends thereof, has been or shall hereafter be bequeathed to any person, for life, or for a term of years, or for any other lim- ited period, or upon a condition or contingency, the executor or executors, administrator with the will annexed, trustee or trus- tees under such will, or trustee appointed by the orphans' court to make such sale of real estate, as the case may be, shall deliver the property so bequeathed to the person entitled thereto, upon such person giving security in the orphans' court having jurisdic- tion, in such form and amount as, in the judgment of the court, will sufficiently secure the interest of the person or persons en- titled in remainder, whenever the same shall accrue or vest in pos- session. Should such person or legatee refuse or neglect or be unable to enter such security, the court may, upon petition of any person interested, including the owner of any subsequent interest, vested or contingent, in such proceeds of real estate, personal property, or the increase, profits or dividends thereof, and upon due notice to all persons interested, so far as such notice can rea- sonably be given, appoint a suitable person or corporation as trustee to receive and hold such proceeds of sale or personal prop- erty, invest the same in securities authorized by law, pay the in- come thereof, after deducting all legal charges, to the person en- titled thereto, and, upon the termination of the trust, account for and pay to the persons entitled thereto the corpus of the trust fund, or transfer and deliver to them the securities in which it is invested, as the court may direct, after deducting all legal charges thereon. Such trustee shall enter such security as the court may direct. He shall not be an insurer of the trust fund, and shall be liable to the persons interested in the income or corpus of the trust fund only for such care, prudence and diligence in the execution of the trust as other trustees are liable for. FIDUCIARIES ACT— Section 23 359 NoTB.— This is Section i of the Act of May 17, 1871, P. L. 269, i Purd. 1133, amended by reason of the decision in Weir's Estate, 251 Pa. 499, also by inserting the provisions as. to proceeds of real estate, and by omitting, at the end of the first sentence, the following: "and any married woman availing herself of the benefits of this act, shall have power, as a feme sole, to bind her separate estate and property by any obligation given by her, as security under this act." This provision seems unnecessary since the Married Womai's Acts of 1887 and 1893, as it cannot be taken to mean that a married woman may bind herself as surety for another, but only that she may be principal in a bond given under the Act of 1871. That part of Section 46 of the Act of February 24, 1834, i Purd. 1123, relating to security by a tenant for life on a sale of real estate for pay- ment of debts, is covered. Section 49 of the Act of 1834, i Purd. 1133, was supplied by the Act of 1871 and is recommended for repeal. Section i of the Act of April 17, 1869, P. L. 70, i Purd. 1138, so far as it empowers "the owner of any contingent interest in the personal prop- erty of any decedent" to "require the legatee of any previous interest in the same property before receiving the same, to give security,'' etc., is embodied in the present draft. The present law seems to require amendment in several particulars. It makes no provision for the case that frequently arises where the life ten- ant refuses or is unable to enter security; nor does it provide for the case that also frequently arises under existing laws where a widow, for ex- ample, is entitled for life to her share of the proceeds of real estate. In such cases it has been the practice for the courts ex necessitate to appoint a trustee without express legislative warrant. The duties of such a trustee were of course not defined by statute ; and the Supreme Court has recently held in Weir's Estate, 251 Pa. 499, that such a trustee practically takes the place of the life tenant, who or whose estate under existing decisions is responsible to the remaindermen at the termination of the life estate for the exact value of the assets received by the Hfe tenant, who thus becomes practically an insurer of the fund. In such circum- stances it will be difficult to find any person or corporation who would be willing to assume this responsibility, and this section has been framed to assimilate the duties and responsibilities of such a trustee to those of other trustees. "Section 23 of the Fiduciaries Act of June 7, 1917, P. L. 447, 489, has changed the rule laid down in Weir's Estate and expressly provides that, where a life tenant refuses or neglects to enter security, the court, upon the application of any person in interest, may appoint a trustee to hold the property, who shall be liable only 'for such care, prudence and diligence in the execution of the trust as other trustees are liable for' " : Mr. Jus- tice MoscHziSKER, in Loewer's Est., 263 Pa. 517, 106 Atl. 789, reversing on another point the court below (27 Dist. 753) where, in his opinion, Lamorelle, p. J., said : "If, when a life tenant gives a bond, the security takes the place of the fund so awarded, and if, even where the life estate 36o FIDUCIARIES ACT— Suction 23 is given in trust a similar rule applies, why should not a trustee appointed by the court be treated as is the surety, and be responsible for the fund at its value when received, irrespective of after-profits or losses? There is no warrant in law for the appointment of a trustee who is to be treated solely qua trustee. The Act of May 17, 1871, P. L. 269, is silent on the subject. True, it has been customary, where a life tenant was unwilling or unable to comply with the exaction of the act, to appoint some one to hold the fund and to act as trustee, but prior to the Fiduciaries Act of 1917, P. L. 447, there was no law authorizing the practice. . . . "While no one seems to have questioned the right of the court to ap- point such trustee, the responsibilities and the limitations of one so ap- pointed were questioned and are defined in Weir's Estate, 251 Pa. 499." See also Conner's Est., 29 Dist. 636. A gift of $15,000 with a limitation or restriction as to its use, and a further bequest on the death of the legatee, comes within Section 23 of the Fiduciaries Act of June 7, 1917, P. L. 447, and will be delivered to the legatee upon giving security to protect the interest of the remainder- men. Dale's Est., 29 Dist. 265. Where a testator devised a farm to his daughter for life subject to an annual payment to his widow during her life, and the farm was subse- quently sold under order of court to pay a mortgage given for payment of debts, the court ordering an amount to remain charged out of the pur- chase money, the interest of which, being equal to her annuity, was to be paid to the widow for Hfe, the court has no power, on petition of a sub- sequent purchaser of the farm, to order the daughter to give bond for, or to appoint a trustee to receive, the principal of the charge. The will cre- ated no charge and the former court had no authority to create one, nor can the present court authorize the payment to the daughter of money already due her or compel her to receive it. Refusal to accept money due is no wrong for which there is a remedy. Semble. The 23d section of the Fiduciaries Act of June 7, 1917, P. L. 489, does not cover this case. In dismissing the petition, the court, per Smith, P. J., said: "Why should the petitioner be concerned about her giving a bond? It can be readily seen that the remaindermen might be disturbed if this money is not securely guarded, but it does not appear how the petitioner can be in- jured by paying as by the terms of the agreement it was contracted he should pay. There is nothing in the agreement about payment being with- held until the payee furnishes security. Again, what and where is the law by which a demand for security from L,evina Carman can be enforced by anyone? As we understand the case, there was none previous to the pas- sage of the Fiduciaries Act of June 7, 1917, Section 23, P. L,. 447, and it can be fairly and forcefully argued that this act does not cover this case. It does not seem to authorize any other than executors, administrators with the will annexed, trustees under wills, or trustees appointed by the court, to withhold property from those to whom it has been bequeathed because of a failure or refusal by them to give security.'' Ranck's Est., 27 Dist, 792, 35 Lane. Rev. 205. FIDUCIARIES ACT— Suction 24 361 470. REMEDY FOR COLLECTION OF ALL LEGA- CIES TO BE EXCLUSIVELY IN THE OR- PHANS' COURT. Section 24. The remedy for the collection or enforcement of payment or delivery of all legacies, whether pecuniary, specific or otherwise, and whether charged on land or not, shall hereafter be exclusively in the orphans' court, saving the jurisdiction of other courts in actions which may be pending at the time of the approval of this act. Note. — This is a new section. To all intents and purposes, the remedy for the collection of legacies is now entirely in the orphans' court, actions at law for the purpose having fallen into disuse. The payment of legacies in general being essentially a part of the distribution of estates in the orphans' court, and that court having, under existing laws, full power to enforce the payment of legacies charged on land, it would seem proper to abolish proceedings in the court of common pleas. The commissioners therefore suggest the repeal of Sections 50, 52, S3, 54, 55 and 56 of the Act of 1834, i Purd. 1134, 1135. Those sections were derived in part from the Act of March 21, 1772, 1 Sm. L. 383. The Commissioners of 1830 recited the provision of Section 3 of the Act of 1772, which authorized the court in which an action for a legacy was brought to appoint auditors to ascertain how the accounts of the executor stood and how the assets ought to be apportioned, and remarked upon the great inconvenience of this method, saying : "The best course for all parties, is to refer all questions on the subject of accounts and as- sets, to the orphans' court, and to suspend proceedings in the other courts, until the result of the settlement in that tribunal is ascertained." The present commissioners now recommend that the legislature take one step more and abolish the remedy by action at law. This section of the Fiduciaries Act does not include owelty in partition, secured by recognizance in the orphans' court. In so holding, Gillan, P. J., said: "If the legislature had intended that the remedy for the collection of owelty in partition, charged by recognizance in the orphans' court, should be exclusively in that court, it would have said so ; unless it does say so, the courts can not so hold. By Act of 24 February, 1834, P. L. 70 it was provided that it should be lawful for any one to whom a bequest of money was to be made, to bring an action at law for the recovery of the same. By the Act of 1917 this has been repealed and the remedy is now exclu- sively in the orphans' court. But this does not apply to owelty in partition charged upon lands." Poe's Est., 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L. J. 635, 15 Del. 381. 362 FIDUCIARIES ACT— Section 25 (a) 471. PROCEDURE TO ENFORCE PAYMENT OF LEGACIES CHARGED ON LAND; PETITION, NOTICE DECREE FOR PAYMENT; SALE AND DISTRIBUTION OF PROCEEDS; DECREE TO ENFORCE PAYMENT OF INTEREST. Section 25. (a) In all cases in which, by the provisions of any last will and testament, or by the provisions of this act, or by pro- ceedings in the orphans' court in any county, any legacy or any money payable at a future period, or any money the interest on which is payable to any person, is or shall be hereafter charged upon, or payable out of real estate, it shall be lawful for the legatee or the person entitled to such money or interest to apply by petition to the orphans' court having jurisdiction of the accounts of the fiduciary. On the presentation of such petition, the court, having caused due notice to be given to such fiduciary, and the devisee or heir, as the case may be, and the present owner, of the real estate charged with such legacy, sum of money or interest, and to such persons interested in the estate or property as justice may require, may proceed according to equity to make a decree directing such devisee, heir or owner to pay the amount of such legacy, sum of money or interest then due, within a time to be limited by such decree, and providing that in case such devisee, heir or owner shall fail to make payment within such time, the fiduciary, or a trustee to be appointed by said court, in its discretion, shall, after giving public notice of such sale, once a week for a period of three weeks before the day appointed therefor, by advertisement, in at least one newspaper published in the county if there be one, or, if there be none, then in an adjoining county, and by handbills posted at a conspicuous place on the real estate proposed to be sold and in at least three of the most public places in the vicinity of such estate, make sale of said real estate or so much thereof as may be nec- essary, for the purpose of payment of such legacy, sum of money or interest. The proceeds of such sale shall be distributed, under the direction of said court, as in other cases oi judicial sales, to the persons legally entitled to receive the same. In the case of money charged upon real estate, the interest on which is payable to any person, the court may, instead of directing a sale of such real estate as aforesaid, make such decree or order to enforce pay- ment of said interest as shall be just and proper. Note.— This is a coinbination of Section S9 of the Act of 1834, i Purd. 113s, Section i of the Act of May 17, 1866, P. L. 1096, 3 Purd. 3388, as FIDUCIARIES ACT— Section 25 (o), (b) 363 amended by the Act of March 22, 1907, P. L. 29, 6 Purd. 7036, and Section I of the Act of April 28, 1899, P. L. 120, 3 Purd. 3389. Sections 59, 60 and 61 of the Act of 1834 were new in that act, and were intended "to remedy a serious defect in our jurisprudence, arising, like many others, from the attempt to obtain justice with the insufficient ma- chinery of our common law courts," the remedy, before the Act of 1834, having been solely by actions at law. Section 24 of the present draft (see 470 supra) makes the remedy in the orphans' court exclusive. Section 59 of the Act of 1834 ends, "to make such decree or order touching the payment of the legacy, out of such real estate, as may be requisite and just." It has been held that the writ of levari facias is the proper process for enforcing such a decree : Hart v. Homiller's Executor, 33 Pa. 39. The change is made so as to provide for sale by the executor or a trustee, and the procedure is made to conform with sales for payment of debts. The provisions have also been extended so as to include the terre tenant. In line 6, "person" has been substituted for "widow," and corresponding changes have been made in this and the following clauses. "Once a week for a period of three weeks" has been substituted for "at least twenty days.'' The Act of 1866 includes charges on land by proceedings in the orphans' court, and the amendment of 1907 added the words "or otherwise," which are now omitted. The Act of 1899 was intended to facilitate the collection of dower interest in cases of the absence or non-residence of the owners of the land. Where a testator gives to his wife an annuity for life and directs that "the same shall be a lien upon any real estate of which I may die seized," and after giving the remainder of the income of his estate to certain per- sons for life, further directs that the corpus of his estate shall be divided among his grandchildren "subject to all the limitations, previous gifts, and bequests heretofore set forth," the widow, on a deficiency of income from the annuity, is entitled to proceed under the Act of February 24, 1834, , P. L. 84 (incorporated under Section 25 of the Fiduciaries Act of June 7, 1917, P. L. 447), to have her annuity charged upon the land. John- ston's Est., 264 Pa. 71, 107 Atl. 335. 472. PROCEDURE WHERE LAND LIES IN AN- OTHER COUNTY OR IS DIVIDED BY A COUNTY LINE. (b) If the real estate charged with such legacy, sum of money or interest shall be situated in a county or counties other than that the orphans' court of which has jurisdiction of the accounts of the fiduciary, and the devisee, heir or owner, against whom such decree has been made, shall fail to comply therewith according to the terms thereof, such decree may be certified to the orphans' court of any county in which such real estate is situated, or, in case such real estate is divided by a county line, then to the orphans' court 364 FIDUCIARIES ACT— Section 25 (6), (c) of the county where the mansion house may be situated, or, if there be no mansion house, to the county where the principal im- provements may be, or, if there be no improvements, to either county. Upon such certification and petition filed by the legatee or the person entitled to such money or to such interest, it shall be the duty of the said orphans' court to make an order for the sale of so much and such parts of such real estate as shall, in their opinion, be necessary to raise the specified sum and to direct the fiduciary, or a trustee to be appointed by said court, to make such sale after public notice as aforesaid given in each of the counties in which the real estate is situated. Such fiduciary or trustee shall in all cases make return of his proceedings, in relation to such sale, to the orphans' court making such order of sale, when, if the same be approved by said court, it shall be confirmed ; but the proceeds of such sale shall be distributed under the direction of the court having jurisdiction of the accounts of the fiduciary or trustee, as provided in clause (a) of this section. In the case of money charged upon real estate, the interest on which is payable to any person, the orphans' court to which the decree is certified, as afore- said, may, instead of directing a sale of such real estate as afore- said, make such decree or order to enforce payment of said in- terest as shall be just and proper. Note. — This is Section 60 of the Act of 1834, i Purd. 1136, modified so as to correspond to the changes made in the last preceding clause, so as to provide for the filing of a petition by the legatee or other person en- titled to payment, so as to include the case where the land is situated in other counties, and so as to make the procedure conform to that pre- scribed in relation to the sale of real estate for the payment of debts of a decedent. 473. BOND BY LEGATEE OR OTHER PERSON EN- TITLED TO BENEFIT OF DECREE FOR PAY- MENT. (c) Before such legatee or other person shall be entitled to the benefit of any decree made under the provisions of this section for payment by the devisee, heir or owner of the real estate of the amount of such legacy, sum of money or interest, he or she shall give such security as the court, in which application was originally made, shall direct, for the indemnity of the devisee, heir, owner, or other persons interested, in the event of any debt due by the testator being recovered, for the payment of which such real es- tate would be liable. FIDUCIARIES ACT— Suctions 25 (c)-26 (a) 365 Note. — This is Section 61 of the Act of 1834, i Purd. 1136, modified so as to apply only to the decree for payment. 474- DISCHARGE OF RESIDUARY ESTATE FROM ANNUITIES OR LEGACIES PAYABLE IN FU- TURE,— PETITION. Section 26. (a) Whenever any testator shall have heretofore, by his last will and testament duly proven, given or bequeathed any annuity or annuities to any person or persons, or directed the payment of an annuity or annuities by his executors or by trustees, or bequeathed legacies of principal sums payable at a future period, or upon contingencies or under other circumstances by which the payment or discharge and satisfaction of such legacies may be post- poned, or may not take place until a distant period after the death of such testator, and either by the express words of the will, or by the rules of law in the construction thereof, such annuities or legacies are made or become a charge upon all the residuary real or personal estate of the testator, and whenever any testator shall hereafter make any such bequest and provisions, in any such case, it shall be lawful for the executors of any such will, or for any such annuitant or legatee, or for any person interested in such residuary estate, at any time after the expiration of six months from the granting of letters testamentary, to apply by petition to the orphans' court having jurisdiction of the accounts of such executors, setting forth the facts and praying relief. Note. — This is the first part of Section i of the Act of February 23, i8S3, P. L. 98, I Purd. 1 136, the section having been divided on account of its excessive length. The only changes made in this part are to substitute the period of six months for one year, and to add the vi^ords "real or personal" before "es- tate of the testator." Section 26 of the Fiduciaries Act extended the practice provided under the Act of February 23, 1853 (P. L. 98), to residuary personal estate as well as real estate. Gest, J., in Channon's Est., 27 Dist. 479, 47 Pa. C. C. 637, affirmed in 266 Pa. 417, 109 Atl. 756. "A petition was presented by the Schuylkill Trust Company, executor of the last will and testament of John J. Cullen, praying that a citation be issued to show cause why the real estate of John J. Cullen, deceased, should not be sold for the purposes set forth in the petition. The seventh clause of the petition recites that 'in order to fully discharge the debts of the decedent and pay all bequests it is necessary to sell and dispose of the real estate,' and in paragraph ten, prays the court to grant relief, as provided for in the twenty-sixth section of the Fiduciaries Act of 1917- • • • 366 FIDUCIARIES ACT— Section 26 (a), (b), (c) "The purpose of the second petition, as stated in clause seven, is to se- cure the discharge of the debts and bequests of the testator. It is alleged that this is a proceeding under the twenty-sixth section of the Fiduciaries Act of 1917. An examination of this section shows that it is a repetition of the Act of 1853, with sHght modifications and it does not authorize the court to direct a sale of real estate for the payment of debts and legacies, or of either debts or legacies. In fine, it does not authorize the sale of real estate at all, and this court had no jurisdiction to order a sale of this real estate under this proceeding. And if the purchasers of real estate have any title it is an exceedingly doubtful one. "The account shows that there was sufficient personal property in this estate to pay the debts. The executor should have contented itself with the administration of the personal estate, and thus its duty as executor would have been fully discharged. The will did not charge the land with the payment of legacies ; but if it did, the executor was not the proper person to petition the court to secure their payment." Wilheim, P. J., in Cullen's Est., 16 Sch. 278. 475. CITATION, HEARING, APPOINTMENT OF MASTER. (b) Upon the filing of such petition, the court may order a cita- tion to be issued to the parties interested, to appear at a day cer- tain, to show cause why the relief prayed for should not be granted ; and upon the return of such citation, if all the annuitants, legatees and other persons interested shall have had due notice of the appli- cation, the court may itself inquire into the circumstances, the amount and condition of the estate, and the expediency and pro- priety of exempting any part or portion of the residuary real or personal estate from the Hen and charge of such annuities and legacies, or either of them, having due regard to the absolute and ultimate security of such annuities and legacies ; or the court may, at its discretion, refer the case to a master, with directions to in- quire into the matters aforesaid and to report thereupon. Note. — This is the second part of Section i of the Act of February 23, 1853, P. L. 98, I Purd. 1 137, altered by extending its provisions to residu- ary personal as well as real estate, and by providing that the case may be referred to a master instead of an auditor. 476. DECREE DIRECTING SETTING APART OR IN- VESTING OF SO MUCH OF RESIDUARY ES- TATE AS WILL SECURE PAYMENT OF AN- NUITIES OF LEGACIES. (c) After such inquiry by the court or, if the case is referred to a master, after his report has been made and after notice thereof to all persons interested, it shall be lawful for the court to make FIDUCIARIES ACT— Section 26 (c), (rf) 367 a decree in the premises, and if it shall appear that all the debts of the testator have been paid or sufficiently secured, the court may enter a decree that such part or parts of the residuary real estate, or such real securities or investments in public stocks or bonds, or such securities as now are or may hereafter be authorized by law as investments by trustees, shall be set apart or appropriated or that such part of the residuary estate shall be so invested as, in the judgment of the court, shall appear to be, and with rea- sonable probability continue to be, adequate and sufficient, beyond all charges, expenses and deductions, for the payment of such an- nuities and legacies, providing always a sufficient surplus to meet any contingent diminution or depreciation in the value or income of the estate and securities so set apart. Note. — This is the third part of Section i of the Act of February 23, 1853, I Purd. 1137. It has been changed by inserting the provisions at the beginning, to cover cases where the court itself hears the evidence; by inserting after "public stocks" the words "or bonds ;" by adding the provision as to other legal investments ; and by adding the provision for investment, to cover cases where the residuary estate consists of other than legal investments. There are also slight changes in phraseology. 477. DISCHARGE OF REMAINING ESTATE; AP- PEALS. (d) When such decree shall have been made, it shall be further lawful for the court to order and decree that all the remaining real or personal estate of the testator, or both, not so specifically set apart, shall be and remain discharged and exonerated from the lien and charge of any and every such annuity and legacy, and such decree shall have the force and effect of discharging and exon- erating all such real or personal estate, or both, accordingly : Pro- vided, That an appeal from a decree granting or refusing such petition may be taken to the proper appellate court within six months after the entry of the same, as in other cases: And pro- vided further, That nothing in this section contained shall be deemed or held to authorize the exoneration of any real estate which may have been or may be specifically charged by a testator with the payment of any annuity or legacy. Note. — This is the last part of Section i of the Act of February 23, 1853, I Purd. 1137. The words "or personal" have been inserted in the third line. After "annuity and legacy," in the sixth line, the following has been omitted : "in the hands of any bona fide purchaser of such real estate for a valuable 368 FIDUCIARIES ACT— Section 26 (rf), (e), (/) consideration." No reason appears why the exoneration should not oper- ate in favor of devisees and legatees. The provision as to appeal has been changed so as to meet the decision in McCredy's Appeal, 64 Pa. 428, that an appeal under this section lay only when the decree was in favor of the petitioner. The words "proper ap- pellate" have been substituted for "supreme" in the first proviso, and the period for appeal has been made six months instead of one year. 478. CUSTODY OF PORTION OF ESTATE SET APART; ACCOUNTS, SURPLUS INCOME. (c) The real estate, securities and investments, set apart and appropriated by order of the court as aforesaid, shall be and con- tinue in the possession, charge and management of the executors, trustees or other persons to whom the same may have been devised or bequeathed by the testator as aforesaid, under and subject to the charge of such annuities and legacies. It shall be the duty of every such executor, trustee and other person, upon request of any person interested, to file with said court, at the expiration of one year after such decree shall have been made, and at the expira- tion of every year thereafter until the termination of such trust, an account setting forth the situation and circumstances of such estate, securities and investments, and the annual income there- from, and the payments thereout. If, upon such account, it shall appear to the court that the said income exceeds, in any consider- able degree, the amount of the existing annuities and other charges and expenses payable thereout, it shall be lawful for the court to order and decree that such surplus income may be paid over to such persons as may be entitled to the residuary estate under the provisions of the will, or the court may, in their discretion, order and decree that the same be invested in real securities, public stocks or bonds, or such securities as now are or may hereafter be author- ized by law as investments by trustees, for the further or additional . security of such annuitants or legatees. Note. — This is Section 2 of the Act of February 23, 1853, P. L. 98, I Purd. 1137, changed by inserting "investments" instead of "stocks or bonds" in the first line and in corresponding places ; by changing "make report to the court" to "file with said court;" by providing that the ac- counts shall be filed at the request of any person interested ; and by in- serting at the end "or such securities as now are or may hereafter be authorized by law as investments by trustees." 479. REDUCTION OF FUND SET APART. (/) Upon the application of any person interested in any resid- uary estate, set apart as aforesaid, setting forth that, by reason of the decease of any such annuitant, or by the happening of any FIDUCIARIES ACT— Suctions 26 (/), {g)-2^ (a) i 369 other event, the charge of any annuity or legacy as aforesaid has become extinguished, in fact or law, it shall be lawful for the said court, from time to time, after due notice and inquiry into the facts, to make an order and decree for the exoneration and dis- charge of such part or portion or so much of the real estate, securi- ties and investments, so set apart and appropriated, as may appear to such court to be beyond the amount requisite or proper for the purpose of providing a sufficient continuing security for the pay- ment of the remaining annuities and legacies. Every such order or decree shall have the same force and effect in respect to the real estate, securities and investments, therein and thereby exon- erated and discharged, as is declared in clause (d) oi this section, in respect to the residuary estate not specifically set apart and ap- propriated. An appeal from the entry of or refusal to enter such order or decree may be taken to the proper appellate court within six months, as in other cases. Note. — This is Section 3 of the Act of February 23, 1853, i Purd. 1137, the phraseology being altered to conform to clause (e), and the last sen- tence being added to correspond to clause (d). 480. RIGHTS TO ULTIMATE ENJOYMENT OF RE- SIDUARY ESTATE SET APART NOT TO BE AFFECTED. (g) Nothing in this section contained, or in any decree or order made by any orphans' court by the authority of this section, shall be deemed or held to affect in any way the legal or equitable rights of any person or persons interested in the residuary estate set apart and appropriated as aforesaid, but all such rights to the ultimate enjoyment of such estate shall remain and continue as before the passage of this act, so far as the provisions of this section are concerned. Note. — This is Section 4 of the Act of February 23, 1853, i Purd. 1138. The changes are the substitution of "section" for "act" in the first and third lines, and the addition, at the end, of the words "so far as the pro- visions of this section are concerned." 481. DISCHARGE OF REAL ESTATE FROM LIEN OF LEGACIES AND OTHER CHARGES,— WHERE PERSONS TO WHOM PAYMENT IS DUE CAN- NOT BE FOUND,— JURISDICTION; PETITION AND NOTICE. Section 27. (a) i. In all cases in which, under any proceeding in any orphans' court of this commonwealth, or by any last will 24 370 FIDUCIARIES ACT— Section 27 (a) 1, 2 and testament, or by the provisions of this act, any dower, legacy, recognizance or other charge shall have been imposed upon land, or any part thereof, and such charge is due and payable, and the person or persons to whom such payment is due cannot be found after diligent and reasonable search, it shall be lawful for the owner of the land charged to apply by petition to the orphans' court of the county where said land is situated, or, in case said land is divided by a county line, to the orphans' court of the county where the mansion house may be situated, or, if there be no man- sion house, in the county where the principal improvements may be, or, if there be no improvements, in either county, setting forth the circumstances of the case, the name or names of the person or persons to whom such payment is due or the fact that such names are unknown, and the time when such legacy or charge, or any part thereof, became due and payable, and a description of the land subject to the charge. Thereupon said court shall make an order directing such petitioner to give public notice of the facts set forth in such petition, by publication once a week for four successive weeks in one or more newspapers published within or nearest to said county or within or nearest to each of said counties, requiring the person or persons to whom such legacy or charge, or any part thereof, is due and payable, or who wish to lay claim to the moneys as aforesaid, to appear in court on a day designated, not less than twenty days after the last publication of said notice, and show cause why the amount so due and payable, as set forth in said petition, should not be paid into said court. NoTB. — This is the first part of Section i of the Act of July 14, 1897, P. L. 269, 3 Purd. 3388, condensed by omitting unnecessary repetitions. The first part has been changed so as to be uniform with clause (fr) i of this section. Provision has been made for cases where the land is divided by a county line ; and the provisions for notice have been modified by requiring publication for four weeks and appearance not less than twenty days after the last publication, instead of publication for three weeks be- fore the first day of the next term of court and appearance at the next term. 482. HEARINGS; ASCERTAINMENT OF AMOUNT OF CHARGE; PAYMENT INTO COURT; RE- CORDING OF DECREE. 2. If no person shall appear to show cause, as aforesaid, or if the person or persons appearing shall fail to show that he or they are entitled to such moneys, the court, being satisfied of the truth of the facts set forth in said petition, shall enter a decree that the FIDUCIARIES ACT— Section 27 (a) 2, (b) i 371 amount of such legacy or charge, or part thereof, due and pay- able to the time of final decree, be paid into court, and that, upon such payment, such real estate shall be discharged from the lien of such legacy or charge, or from so much thereof as shall be so paid into court. When the amount of such legacy or other charge does not appear as a matter of record, the court may, by appoint- ment of a master or by investigation in open court, ascertain and fix such amount. A certified copy of such decree may be recorded in the deed book in the office for recording deeds in every county where such real estate or any part thereof is situated, in the same manner and with like effect as deeds of conveyance of real estate, are recorded, and shall be indexed by the recorder in the grantors' index under the name of the decedent and in the grantees' index under the name of the owner of the land ; and the charges for re- cording shall be the same as are provided by law for similar services. Note. — This is the remainder of Section i of the Act of July 14, 1897, 3 Purd. 3388, condensed in the same manner as the first part, and modified as to the decree and recording so as to follow the provisions of the Act of 1861, clause (c) of this section. 483. WHERE CHARGE HAS BEEN PAID, OR IS PRE- SUMED TO BE PAID,— JURISDICTION. (b) I. In all cases in which, under any proceeding in any or- phans' court of this commonwealth, or by any last will and testa- ment, or by the provisions of this act, any dower, legacy, recogni- zance, or other charge shall have been imposed upon land, payable presently or at a future time, and such charge shall have been paid, or a period of twenty years shall have elapsed after the principal of such charge has become due and payable and no payment shall have been made within such period on account of such charge by the owner or owners of the land, and no sufficient satisfaction, release, acquittance or acknowledgment of payment thereof shall be of record in the county in which the land is situated, it shall be lawful for the orphans' court of said county, or, in case said land is divided by a county line, then the orphans' court of the county where the mansion house may be situated, or, if there be no mansion house, in the county where the principal improvements may be, or, if there be no improvements, in either county, to en- tertain a petition for the discharge of said land from the lien of said charge. 372 FIDUCIARIES ACT— Section 27 (6) i, 2, 3 Note.— This is the first part of Section i of the Act of May 8, 1895, P. L. 44, 4 Purd. 4047, altered so as to apply only to charges enforceable in the orphans' court. The section as it now stands includes encumbrances and charges enforceable in the common pleas. This part of the section has been modified so as to include legacies and other charges, and thus supply Section i of the Act of June 8, 1893, P. L. 356, 4 Purd. 4046. The period has been made twenty years, which is the ordinary period for presumption of payment, instead of twenty-one years. The section in the Act of 1895 is very long and consists of one sen- tence. It is here subdivided for the sake of clearness. Where, on a petition under Section 27 (6) of the Fiduciaries Act of 1917, P. L. 447, for the discharge of land from a dower fund, the weight of the evidence showed that the fund in question was paid to the parties thereto entitled tnore than twenty-eight years before the hearing of the case, and- in the opinion of the court was sufficient to establish this fact, a decree discharging the land from the fund was entered. Harbold's Est., 34 York 149. 484. PETITION. 2. Such petition shall be presented by the owner or owners of said land or any part thereof, shall be duly verified by affidavit, and shall set forth the facts and allege that said charge has been paid or that no payment of principal or interest has been made within said period of twenty years on account of said charge by the present owner or owners, or, so far as can be ascertained, by his or their predecessors in title, and shall state the names of all known parties interested in such charge, their places of residence, if known, and a description of the lands subject to the charge and sought to be released and discharged. Note. — This is the second part of Section i of the Act of May 8, 1895, P. L. 44, 4 Purd. 4047. 485. CITATION. 3. Upon the presentation of such petition, it shall be lawful for said court to issue a citation in the manner authorized by law to all such parties, which citation shall be served as other citations are required to be served, and shall require the parties to appear in court on a day designated, to show cause why said land should not be discharged from the lien of such dower, legacy or other charge. Note. — This is substituted for the provisions of Section i of the Act of May 8, 1895, P. L. 44, 4 Purd. 4047, as to service of notice and publi- cation thereof in newspapers. FIDUCIARIES ACT— Section 27 (b) 4, (c) 373 486. HEARING, DECREE, RECORDING OF DECREE. 4. If the court, aided if necessary by the report of a master, shall determine, at a hearing held in pursuance of said citation, that such dower, legacy or other charge has been paid or is other- wise no longer chargeable upon the land by reason of any presump- tion, of payment, of if no person shall appear to answer the cita- tion, or if all parties in interest shall have joined in the petition upon which such citation was issued, the court, being satisfied of the truth of the allegations of the petition, shall decree that the land subject to the charge, or any part thereof, sought to be re- leased or discharged, shall be released and discharged from the same and the payment thereof ; and a certified copy of such de- cree may be recorded in the office for recording deeds in each county where such land or any part thereof is situated, upon the terms and with the effect provided in clause (a), paragraph 2 of this section. Note. — This is the last part of Section i of the Act of May 8, 1895, 4 Purd. 4047, altered so as to conform to the changes made in the previous parts of the section, and so as to provide for determination of the ques- tions in the same proceeding instead of requiring the persons claiming payment to institute another proceeding to enforce payment. Section 2 of the Act of 1895, 4 Purd. 4048, provides for the appoint- ment of guardians ad litem, and is omitted as unnecessary in view of the general provisions of Section S9 (k) of the present draft. (See 616 infra.) 487. CASES NOT PROVIDED FOR IN CLAUSES (A) AND (B). (f) Whenever any dower, legacy, recognizance or other charge has been or shall be charged upon or payable out of real estate, by virtue of any last will and testament, by the provisions of this act, or under any proceeding in any orphans' court of this common- wealth, or whenever it shall be claimed that such charge exists, it shall be lawful for said court, in any case not provided for by the preceding clauses of this section, on petition of the devisee or heir of such real estate, or any owner thereof, claiming under such devisee or heir, to authorize such petitioner to pay into said court the full amount of such legacy or other charge; whereupon the said court shall make a decree, discharging such real estate from the lien of such legacy or other charge, or from so much thereof as shall be so paid into court ; and a certified copy of such decree may be recorded in the office for recording deeds in any county where such land or any part thereof is situated, upon the terms 374 FIDUCIARIES ACT— Section 27 (c), (d) and with the effect provided in clause (a), paragraph 2 of this section. Note.— This is Section i of the Act of May i, 1861, P. L. 420, i Purd. 1 136, modified so as to cover all cases not provided for by the preceding clauses of the present section of the draft, and with some changes in phraseology. Section 2 of the Act of May 17, 1866, P. L. 1096, 3 Purd. .3388, is covered by the provisions of this and the preceding clauses, and is therefore rec- ommended for repeal. Sections 22 and 23 of the Act of April 26, 1850, P. L. 581, 3 Purd. 3436, extending to legacies charged on land the provisions of Section i of the Act of March 31, 1823, P. L. 216, relating to the satisfaction of mortgages, are recommended for repeal, the matter being sufficiently covered by the present section of this draft. The Fiduciaries Act of June 7, 1917, P. L. 447, does not give the or- phans' court exclusive jurisdiction of the remedy for the collection of owelty of partition, charged by recognizance in the orphans' court, and the jurisdiction of the court of common pleas is still concurrent in such case. "It will be observed that clause (c) of Section 27, above mentioned, provides that whenever any dower, legacy, recognizance, or any other charge shall be charged upon or payable out of real estate by virtue of any last will and testament by the provisions of this act, or any proceeding in any orphans' court of this commonwealth, * * * it shall be lawful for said court, * * * on the petition of a devisee or heir, to authorize such peti- tioner or debtor to pay into court the full amount of such legacy or charge, etc. Nowhere is it provided that this shall be the exclusive method of procedure. It is true that the Act of June 7, 1917, above cited, repeals the Act of May 17, 1866, P. L. 1096, which provided a method of procedure in the orphans' court on a recognizance such as this. The procedure by sci. fa. in the common pleas upon a recognizance entered in the orphans' court has been so long practiced and approved by the courts in this state that it will take a positive act of assembly to destroy that remedy * * * If the legislature had intended that the remedy for the collection of owelty in partition charged by recognizance in the orphans' court should be exclusively in that court, it would have said so ; unless it does say so, the court cannot so hold." Gili-AN, P. J., in Poe's Est, 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L. J. 63s, 15 Del. 381. 488. DISTRIBUTION OF MONEYS PAID INTO COURT. (d) All moneys, when paid into court under the provisions of any of the preceding clauses of this section, shall remain therein until the legatee or other person claiming the same shall present a petition for the distribution thereof, whereupon the court shall, after due notice to all parties interested, make distribution of said moneys to the persons legally entitled to receive the same, or may, FIDUCIARIES ACT— Sections 27 (d), (e), (/)-28 (0) 375 in its discretion, appoint an auditor for the purpose of making such distribution. Note. — This is a combination of Section 2 of the Act of May i, 1861, P. L. 420, I Purd. 1 136, and Section 2 of the Act of July 14, 1897, P. L. 269, 3 Purd. 3389. The provision for appointment of an auditor is derived from Section 2 of the Act of May 17, 1866, P. L. 1096, 3 Purd. 3388, but the appointment is made discretionary. The Act of 1861 provides that distribution shall be made "in the man- ner provided for the distribution of the proceeds of sheriff's sales, when paid into court and directed to be paid out." See Poe's Est., 47 Pa. C. C. spo, 29 Dist. 857, 68 P. L. J. 63S, iS Del. 381. 489. PAYMENT OF COSTS. (e) All costs of proceedings under the provisions of any of the clauses of this section shall be paid as may be directed by the court. Note. — This is substituted for Section 3 of the Act of 1895, 4 Purd. 4048, which provides that the costs of proceedings on petitions presented under the act shall be paid by the petitioners, but that the costs of proceed- ings instituted in response to orders under the provisions of the act shall abide the decision of such proceedings. Section 4 of the Act of 1895 is a general repealing clause, with a proviso that the act "shall not apply to any proceedings now pending, but the same may be proceeded with under existing laws to final decree." 490. APPEALS. (/) Any party aggrieved by any definitive order or decree en- tered by the court under any of the provisions of this section may appeal from such order or decree to the proper appellate court as in other cases. Note. — This is a new clause, introduced in order to remove any pos- sible doubt as to the right of appeal. Some of the existing acts, such as Section i of the Act of May 8, 1895, 4 Purd. 4048, contain provisions that the decree "shall forever thereafter operate as a release and discharge of the land from the incumbrance of the charge and shall bar all actions brought thereon," witliout making any provision for an appeal. 491. POWERS OF EXECUTORS AS TO REAL ES- TATE,— MERE AUTHORITY TO SELL THE SAME AS A DEVISE TO SELL. Section 28. (a) The executors of the last will of any decedent, to whom is given thereby a naked authority only to sell any real estate, shall take and hold the same interests therein, and have the 376 FIDUCIARIES ACT— Section 28 (o) same power and authorities over such estate for all purposes of sale and conveyance, and also of remedy by entry, by action or otherwise, as if the same had been thereby devised to them to be sold, saving always, to every testator, the right to direct otherwise. Note. — This is Section 13 of the Act of 1834, i Purd. 1099, which corre- sponded to Section 14 of the Commissioners' Draft. It was derived sub- stantially from Section 4 of the Act of March 31, 1792, 3 Sm. L. 66. "The auditing judge is of the opinion that the power to carry out the charitable purpose is not confined alone to the first named executor. It is true that in conferring this power the testator speaks of 'my executor,' using the singular number, but this the testator does because he appoints one person sole executor, and when he later appoints succeeding executors in the event of the original executor's death, etc., his apparent purpose is that, in any event, there shall be some one in the office of executor who, by virtue of their office, shall have the duty of carrying out this provision of the will as well as the duty of performing the other services required of executors. See, generally, Kershaw's Estate, 27 Dist. R. 659; Mur- phy's Estate, 184 Pa. 310; Sheet's Estate, 215 Pa. 164; Fiduciaries Act of June 7, 1917, Sees. 28 and 56, P. L. 447." Thompson, J. (Adjudication), Barnwell's Est., 49 Pa. C. C. 188, 29 Dist. 317, aff'd. in 269 Pa. 443. A died leaving a will wherein the executor was directed to pay the debts and funeral expenses, and a devise was made of $50 to a cemetery com- pany. The rest and residue of his property, real, personal and mixed, was given to his wife and to her heirs. The last clause of the will gave the executor full power and authority to dispose of the real estate "as may be for the best interest of my estate." It was agreed that the per- sonal estate was sufficient to pay the debts, funeral expenses, the devise to the cemetery company, costs of administration and taxes. The executor sold the real estate at a public sale, and defendant paid some down money, and subsequently defendant refused to pay the balance or to take title on the ground that the executor could not convey a marketable title. Held, as the personal estate was sufficient to pay the items mentioned, there was no occassion for a sale of the real estate ; that the power to sell did not operate as a conversion, and there was nothing in the will to show that the testator intended that there should be a sale for the pur- pose of distribution, and that, therefore, judgment should be entered for the defendant. "It will be observed that there is no direction to the executor to sell. His power of sale is 'as may be for the best interest of my estate.' Such power does not operate as a conversion. In Chew v. Nicklin, 45 Pa. 84, the syllabus is: 'Conversion is a question of intention; and to effect it by will, the direction to convert therein must be positive and explicit. A bare power to sell, given to executors by will, does not operate as a conversion. The Act of Feb. 24, 1834, P. L. 70, was not intended to break descents or work a conversion of real estate over which a naked power of sale had been given to executors, but only to enable them to preserve and dispose of the estate as though an interest had been devised to them instead, leav- FIDUCIARIES ACT— Section 28 (o) 377 ing the question of intention to convert to depend upon the will of the testator.' Testator died after the passage of the Fiduciaries Act of June 7, 1917, P. L. 447, but the 28th section jpf that act is an exact copy of the Act of 1834, referred to above. The above case was followed in Hunt's and Lehman's Appeals, 105 Pa. 128." Stewart, P. J., in Kolb v. O'Hay, 28 Dist. 194, 16 North. 289. Testatrix after disposing of her household personal property devised all the rest, residue and remainder of her estate, real, personal and mixed, "to all my children, share and share alike, and to their heirs and assigns forever," and in the next clause appointed a son and daughter as ex- ecutors giving them authority "to execute deed for my property." Held, (i) the gift in the residuary clause was an absolute gift to the testatrix's children not cut down or abrogated by the "authority to execute deed" subsequently granted to her executors, and (2) the executors cannot alone convey a good marketable title in fee simple to testatrix's real estate. Endeich, P. J., held : "The question involved in this case stated arises upon the will of Elizabeth Eisenbise, who was the owner of the house and lot No. 311 North Front Street, in the city of Reading, and who died August 31, 1920, leaving a will. In it, after bequeathing to her daughter, Annie Eisenbise, all her 'household furniture and personal property' (i. e., all her household personal property), the testatrix proceeds as follows : " 'As to all the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath to all my children share and share alike, and to their heirs and assigns forever. " 'I hereby appoint my son, Peter W. Eisenbise, and my daughter, Annie, to be the executors of this, my last will and testament, and give them authority to execute deed for my property.' "The first of these clauses clearly imports an absolute gift to the testa- trix's children. Such a gift, it is settled by many decisions, is not to be treated as cut down or abrogated by a subsequent provision not equally clearly and necessarily manifesting a purpose so to do : Hiestand v. Meyer, 150 Pa. 501, 505 ; Yost v. Ins. Co., 179 id. 381 ; Ault v. Karch, 220 Id. 366; Moyer v. Rentschler, 231 Id., 620, 622; Pattin v. Scott, 270 Id. 49, SI. Here the absolute gift to the children is followed by an 'authority to execute deed' for the testatrix's property. Such a pro- vision may vest in the executors the estate in the land as fully as if it were devised to them to be sold : Shippen's Adm'r. v. Clapp, 36 Pa. 89. The Fiduciaries Act 7 June, 1917, Section 28 (o), P. L. 497 provides that: " 'The executors of the last will of any decedent, to whom is given thereby a naked authority only to sell any real estate, shall take and hold the same interests therein, and have the same power and authorities over, such estate for all purposes of sale and conveyance and also of remedy by entry, by action, or otherwise, as if the same had been thereby devised to them to be sold, saving always to every testator the right to direct otherwise.' "The power thus created, however, is one which, in the absence of ex- press direction to sell, arises by implication from a confusion of realty and personalty, in the testator's direction to his executors to convert and 378 FIDUCIARIES ACT— Section 28 (o), (b), (c) distribute : see Myers' App. 62 Pa. 104, 107 ; Gray v. Henderson, 71 Id. 368, and therefore can hardly be regarded as standing upon the same plane with the preceding gift to the children in point of clearness, necessity and absoluteness. Manifestly, where a testator makes a pro- vision contrary to the effect of the statute and fails to supersede it by another capable of overcoming it, he must be deemed to 'direct otherwise' within the meaning of the enactment above quoted. "Our conclusion is that the later direction does not abrogate the pre- ceding one; that under the will of Elizabeth Eisenbise, the plaintiffs, executors, could not alone convey a good marketable title in fee simple to said premises to the defendants; and that therefore — "Under the case stated, judgment is to be entered for the defendants and against the plaintiffs for the sum of $400, with interest from October 21, 1920, and costs of suit." Eisenbise's Executors v. Lebo, 13 Berks 308. 492. PRIVATE SALES, CONVEYANCES OR LEASES AUTHORIZED. (b) All powers to sell or let real estate on ground rent, con- tained in any will, shall be deemed and taken to authorize sales, conveyances or leases, either public or private, unless expressly restricted by the said instrument to one or the other mode. Note. — This is a part of Section i of the Act of March 14, 1849, P. L. 164, 4 Purd. 4924. After "any will," the words "hereafter executed" are omitted. The remainder of the section relates to powers contained in deeds or other instruments and to private sales or leases made before the passage of the act. Section 2 of the Act of March 14, 1850, P. L. 19S, i Purd. 376, also validated private sales and leases theretofore made. 493. POWERS NOT GIVEN TO ANY PERSON BY NAME OR DESCRIPTION DEEMED TO BE GIVEN TO EXECUTORS, BUT TO BE EXER- CISED UNDER CONTROL OF THE ORPHANS' COURT. (c) All powers, authorities and directions, relating to real es- tate, contained in any last will, and not given to any person by name or by description, shall be deemed to have been given to the executors thereof ; but no such power, authority or direction shall be exercised or carried into effect by them, except under the con- trol and direction of the orphans' court having jurisdiction of their accounts, and after the entry of security if the court shall so direct. Note. — This is Section 12 of the Act of February 24, 1834, P. L. 73, I Purd. 1098, which corresponded to Section 13 of the Commissioners' Draft. This, and the two following sections of that draft, were digested from the Acts of March 31, 1792, Section 4, 3 Sm. L. 66, and March 12, 1800, 3 Sm. L. 433. FIDUCIARIES ACT— Section 28 (c), (rf) 379 The previous law was stated in Lloyd v. Taylor, 2 Dallas 223, 1 Yeates 422. The words at the end, beginning with "and after the entry" are new. The orphans' court has no jurisdiction under this section of the Fidu- ciaries Act to grant an order of sale of real estate when the testator merely provides that he requests his estate to be divided in equal shares between his children living; and further provides that the executor shall collect all his accounts and other specific personal property and divide the same. Faus' Est., 50 Pa. C. C. 342. 494. POWERS OF SURVIVING, ACTING, OR RE- MAINING EXECUTORS, OR ADMINISTRA- TORS C. T. A. AS TO REAL ESTATE. (d) In all cases wherein testators shall have devised their real estate, or any part thereof, to their executors to be sold, or shall have authorized or directed such executors to sell and convey such real estate, or shall have directed such real .estate to be sold without naming or declaring who shall sell the same, if one or more of such executors shall die, refuse, renounce, or be dismissed or dis- charged, it shall be lawful for the surviving, acting or remaining executor or executors, or for the administrator or administrators with the will annexed, if such there be, to bring action for the re- covery of possession of such real estate, and against trespassers thereon, to sell and convey such real estate, or manage the same for the benefit of the persons interested therein, and otherwise act respecting the same, as fully and completely as he or they, to- gether with such dying, refusing, renouncing, dismissed or dis- charged co-executor or co-executors, would be empowered to do, if there had been no death, refusal, renunciation, dismissal or dis- charge, or, in the case of an administrator with the will annexed, as fully and amply as if all the executors named in the will had joined therein: Provided, That nothing in this clause shall be deemed or taken to prevent any testator from directing, by his last will and testament, otherwise than is herein declared and en- acted. NoTB. — This is a combination of the provisions of Sections i to 5, in- clusive, of the Act of March 12, 1800, 3 Sm. L. 433. i Purd. 1097-1098. It is recommended that this be substituted for Section 14 of the Act of 1834, I Purd. 1099, which was derived from the Act of 1800, but is not so complete. It would seem that, in spite of the Act of 1834, the Act of 1800 is now in force. See Section 8 of the Act of April 22, 1856, P. L. 532 ; Ross v. Barclay, 18 Pa. 179; Bell's Appeal, 66 Pa. 498, 380 FIDUCIARIES ACT— SecTioNs 29-30 495. FIDUCIARIES MAY MAKE CONVEYANCE THROUGH ATTORNEYS. Section 29. Any fiduciary with power to convey lands or tene- ments in this commonwealth, may make conveyance under such power by and through an attorney or attorneys duly constituted, and such conveyances shall be of the same validity as if executed personally by the constituent ; and all conveyances so heretofore bona fide made by such fiduciaries are hereby confirmed : Pro- vided, That nothing herein contained shall authorize any fiduciary to delegate to others the discretion vested in himself for the gen- eral management of his trust. Note. — This is Section i of the Act of March 14, 1850, P. L. 19S, i Purd. 376, except that "fiduciary" has been substituted for "trustee, executor or other persons acting in a fiduciary character.'' This section of the Act of 1850 seems to apply to other fiduciaries than those included in the present act, and should not be generally repealed. Section 2 of the Act of 1850, i Purd. 376, relates to the authority of agents or attorneys in fact, and does not belong in the present act. 496. PURCHASERS OF REAL ESTATE FROM EX- ECUTORS OR TRUSTEES NOT BOUND TO SEE TO THE APPLICATION OF THE PUR- CHASE MONEY. Section 30. Whenever any person seized of real estate situated in this commonwealth has died or shall die, having first made and published his last will and testament, wherein said real estate is devised to executors or trustees named therein in trust to make sale thereof, or wherein the sale of real estate is authorized or directed but no person is designated to make such sale, and the executors have complied with the provisions of Section 28, clause •(c), of this act, or wherein said executors or trustees are author- ized to make sale of said real estate, convert the same into money, and distribute the proceeds of such sale or sales, or any part thereof, or hold the same in trust for any particular purpose, or for the use of any particular person or persons named in said last will and testament, the person or persons purchasing the real estate so sold from the executors or trustees named in said last will and testament, under the power of sale or direction to sell contained therein, shall take title thereto free and discharged of any obliga- tion to see to the application of the purchase money. NoTU.— This is Section I of the Act of June 10, igii, P. L. 874, 7 Purd. 7703. Section 2 of that act is merely a repealer. FIDUCIARIES ACT— Section 30 381 The changes are, to make the section include cases where sale is author- ized or directed but no one is designated to make the sale, and cases where the sale is merely for the purpose of distribution. So far as sales under testamentary powers are concerned. Section 19 of the Act of February 24, 1834, i Purd. 1122, providing for payment of pur- chase money into court, is superseded by the Act of 191 1, and is now rec- ommended for repeal. Section 30 of the Fiduciaries Act of June 7, 1917, P. L. 447, makes no change in the law as it previously existed with respect to the lien of gen- eral debts against a decedent's real estate where a discretionary power to sell is given as mentioned in the act. It was not the intention of this section to change the course of dev- olution nor to break the current of descent by holding that a conversation took place from the moment of the testator's death, under a mere authority in the will to sell realty. Nor did it intend to take away from general creditors the land as security fpr the payment of debts. It still remained such security and the lien of general debts attach thereto, but such debts will be discharged not only by judicial sale, but also by sale under the discretionary power of sale contained in the will. "Since the passage of the Act of 1917, if the sale related back to the date of testator's death, these debts would not be liens on the real estate; yet the land has passed as land. There was no conversion, and, while all the property of the testator was liable for the testator's debts, the real estate was only liable within the year, unless the claim had been duly in- dexed and suit brought; but if the Act of 1917 intended to wipe out the line of general debts on real estate and another act states that such debts can be collected from funds derived from the sale of such real estate, only as such debts are proceeded on in a certain way, as we have indicated, we are legislating land away from the reach of creditors when we hold that the lien act cannot be put in operation because general debts are not liens under the Act of 1917, and we close the door against recovering these debts from the real estate of the testator; except possibly as the executor might within the year petition for an order of sale for the pay- ment of debts. To prevent such an inequitable conclusion, so much out of harmony with all the law, we follow Judge Bell's advice in Cadbury V. Duval, 10 Pa. 265, 270: 'Legislative enactments are to be expounded as near to the use and reason of the prior law as may be, when this can be done without violation of its obvious meaning; for, say the cases, it is not to be presumed the legislature intended to make any innovation upon the common law, further than the case absolutely requires.' "From an examination of the will before us, it apparently comes within the terms of Section 30. Not only is there an authority to convert to sell, but also a direction to pay debts. This is nothing less than an author- ity to convert into money and distribute. The will also directs the execu- trix to pay 'to my father and mother * * * jointly, and after the death of either to the survivor, the sum of seventy-five dollars each and every month ;' the sum necessary for this purpose, if computed on an interest- bearing investment, would exceed the purchase price named in the con- 382 FIDUCIARIES ACT— Sections 30-31 tract of sale. The money, therefore, would be held 'in trust * * * for the use of any person' named in the last will and testament. It follows, therefore, that the sale by the executrix would be made under a will con- trolled by this act. The purchaser not being required to see to the appli- cation of the proceeds of sale would take the property free of the lien of general debts: Piper v. Doran, (164 Pa. 430) ; and, with the explanation here given, the judgment of the court below is affirmed." Kbphart, J., in Davidson v Bright, 267 Pa. 580, no Atl. 301. 497. LEASES OF REAL ESTATE BY TESTAMEN- TARY TRUSTEES AND GUARDIANS. Section 31. Unless it be otherwise provided by the will, any- testamentary trustee shall have power to make a lease of real es- tate included in the trust for a term not exceeding five years, and any guardian shall have power to make a lease of real estate be- longing to his ward for a term not exceeding five years that shall expire before the minor, if living, would attain his majority. If any testamentary trustee or guardian shall deem it advisable to make such lease for a longer period than aforesaid, the orphans' court of the county wherein such real estate shall be situated, on the application of such trustee or guardian, being aided where nec- essary by the report of a master, may authorize such trustee or guardian to lease such real estate, on such terms and conditions, at such rental, and for such period, as shall appear just and equi- table to said court, with the same force and effect as though said lease were made by the beneficial owner or owners and he or they were sui juris and owned the property in fee. In all cases where such application shall be approved by any orphans' court, the court may direct said trustee or guardian, before making such lease, to file his bond in said court, in such sum as the court shall direct, and with good and sufficient corporate security, or with two good and sufficient individual sureties, approved by said court, conditioned for the faithful application or payment by him of all rents to be received under said lease: Provided, That where such trustee or guardian shall be a corporation, duly authorized by law, the court may, in lieu of security as aforesaid, permit such corpora- tion to enter its own bond without surety. NoTB. — This is a new section. Its form somewhat resembles that of the local Act of March 18, 1869, P. L. 409, 1 Purd. 1088, relating only to leases by guardians of mineral lands in Mercer county. The existing law leaves the power of a trustee to make leases beyond the lifetime of the beneficiary extremely doubtful : Craig's Estate, 24 D. R. 851. The proposed section gives express power to make' leases for FIDUCIARIES ACT— Sections 31-32 (o) 383 five years and provides a method of obtaining authority to make longer leases. See forms 77, 78. A testator devised his real estate in trust for his wife, for life, and on her death to set aside out of the income of the real estate, or from the proceeds from sale thereof, an undefined sum, sufficient to pay the rent for all time of a pew in a certain church as a memorial to himself. Dur- ing the lifetime of the cestui que trust the trustees leased the premises for a period of ten years from Jan. i, 1909; this lease was renewed for nine years at a rental of $25,000 per annum. Afterwards the trustees pre- sented a petition to the orphans' court, under Section 31 of the Fiduciaries Act of June 7, 1917, P. L. 447, praying for leave to execute lease to another party for a term of ten years from Jan. i, 1928. The equitable life tenant acquiesced in this petition but the cestui que trust in remainder objected, and one of the heirs at law also objected, on the ground that the trust after the present life estate was void; held, that, as there was no fund before the court for distribution, no question as to the ultimate distribution of the corpus arose until after the termination of the life estate ; there- fore, no matter how desirable the lease might be from the standpoint of the trustee, or that of the life tenant, since it was opposed by the cestui que trust in remainder and by the heir at law and as the time when they would have the legal right to present their claims was uncertain, the court should not prematurely make any decree decisive of their rights or any decree which might in any way imperil them ; and as a ten-year lease on top of one which had nine years to run might imperil them, the prayer of the petition was refused. Archambault's Est, 29 Dist. 77. 498. ELECTIONS BY GUARDIANS OR TRUSTEES,— ELECTION TO TAKE REAL ESTATE IN LIEU OF PROCEEDS. Section 32. {a) Whenever, by the provisions of any last will and testament admitted to probate in any county of this common- weath, any of the real estate of the testator is ordered or directed to be sold and the proceeds therefrom are bequeathed, or are pay- able or distributable, in whole or in part, to any minor or minors, or cestuis que trust, and it is the desire Df all the legatees and beneficiaries interested in said proceeds to elect to take said real estate, in lieu of the several bequests or legacies or interests, it shall be lawful for the orphans' court having jurisdiction of the accounts of the executor of said will, upon the petition of any fiduciary interested, to authorize and empower said fiduciary, on behalf of his ward or cestui que trust, to enter into an election in writing, to take said real estate or part thereof in fee, in lieu of the legacy or legacies, interest or interests, bequeathed or payable or distributable as aforesaid, taking and being entitled to an estate 384 FIDUCIARIES ACT— Section 32 (o), (6) in said real estate commensurate with the interest said minor or cestui que trust would have had in the fund derived from the sale of said real estate, if the same had been sold in accordance with the provisions of said will. Such election shall be duly acknowl- edged and recorded in the deed book in the office of the recorder of deeds for the county in which such real estate is situated, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the grantees' index under the name of the ward or cestui que trust, the charges for recording to be the same as are provided by law for similar services, and shall then be filed in the office of the clerk of said orphans' court. NoTfi. — This is Section i of the Act of July 22, 1913, P. L. 908, 5 Purd. 5888, extended to cover all cases of cestuis que trust, as well as minors, and altered by transposing the language for the sake of clearness, and by making some verbal changes not affecting the substance. Testator by his will directed a conversion of his land without limit of time within which the conversion should be effected. At the time when the actual conversion of the estate was to occur, certain persons named in the will were to take the interests therein set forth, some of whom were to have absolute estates, and one an estate in trust, and, until conversion all of the cestuis que trustent were to receive the income from the corpus absolutely, except one son, to whom a share of the income was given in part, and in part to a trust created for him for the support, maintenance and education of his family. A petition was tiled by the trustee for this interest, praying for an order of court authorizing and empowering it to join with those who were sui juris in an election to take the decedent's estate as land by virtue of Section 32 (a) of the Fiduciaries Act of 1917 was granted. Bennett's Est., 67 P. L. J. 363, 20 Lack. 142. 499. ELECTION TO TAKE MONEY INSTEAD OF REAL ESTATE IN WHICH IT IS DIRECTED TO BE INVESTED. (b) Whenever, by the provisions of any last will and testament admitted to probate in any county of this commonwealth, money is directed to be laid out or invested in real estate, for the use of any minor or minors, or cestuis que trust, and it is the desire of all the beneficiaries interested to elect to take said money instead of the real estate, it shall be lawful for the orphans' court having jurisdiction of the accounts of the executor of said will, upon petition of any guardian or trustee interested, to authorize and empower said guardian or trustee, on behalf of his ward or cestui que trust, to enter into an election in writing, which shall be filed in the office of the clerk of said court, to take said money in lieu FIDUCIARIES ACT— SEcnoNS 32 (b), (c)-33 (a) 385 of the real estate, taking and being entitled to an interest in said money commensurate with the estate said minor or cestuis que trust would have had in the real estate if the same had been pur- chased in accordance with the provisions of said will. Note. — This is a new clause, introduced to cover the converse of the case provided for in clause (a). 500. VALIDATION OF PREVIOUS ELECTIONS. (c) All elections to take real estate in lieu of legacies or in- terests, or money instead of real estate, heretofore made by any guardian or trustee pursuant to an order of any orphans' court in this commonwealth, are hereby ratified, confirmed and validated. Note. — This is Section 2 of the Act of July 22, 1913, P. L. 908, S Purd. 5888, with some verbal changes and the addition of words to cover clause (&). 501. PROCEDURE WHERE REAL ESTATE IS DE- VISED AT AN APPRAISEMENT TO BE MADE OR TO EXECUTOR AT A VALUATION,— JURISDICTION; PETITION. Section 33. (a) Whenever, in any last will and testament, the testator has directed or shall direct all or any part of his real estate to be appraised and sold, or has devised or shall devise such real estate to any person or persons at an appraisement to be made, or has given or shall give to any person or persons the right to take such real estate at an appraisement directed by the testator to be made but has not indicated or shall not indicate by whom such appraisement shall be made, it shall be lawful for any of the parties interested in such real estate or in the sum to be paid therefor to apply, by petition, to the orphans' court of the county in which said real estate is situated, or, in case the real estate is divided by a county line, in the county where the mansion house may be situated, or, if there be no mansion house, in the county where the principal improvements may be, or, if there be no improvements, in either county, setting forth the terms and character of such devise or direction of the testator, and also the names and residences, when known, of all parties interested. Note. — This is Section i of the Act of April 17, 1869, P. L. 72, i Purd. 1 124, altered in phraseology and by providing that the petition may be by persons interested in the sum to be paid for the real estate. 25 386 FIDUCIARIES ACT— Section 33 (6), (0, W 502. APPOINTMENT OF APPRAISERS,— NOTICE, (b) Upon the presentation of such petition, said court shall appoint two or more disinterested and competent persons, citi- zens of the county, to make such appraisement, unless the testator has designated the number of persons to make such appraise- ment, in which case, the court shall appoint the number of per- sons so designated ; and the court shall, by general rule or by special order in the particular case, provide for notice to be given to all parties interested of the time and place of making such appraisement. Note.— This is Section 2 of the Act of April 17, 1869, P. L. 72, i Purd. 1124, omitting the provision for the award of an inquest directed to the sheriff, and the provision at the end that the notice shall be given in the same manner as notice is required to be given in partition proceedings, and substituting "competent" for "judicious" in line 2. 503. OATH AND COMPENSATION OF APPRAISERS. (c) The appraisers so appointed shall be sworn or affirmed, well and truly and without prejudice or partiality, to value and appraise such real estate ; and each of such appraisers shall receive, as compensation for his services, such amount as may be allowed by said court, such compensation to be paid out of the estate of the decedent, as part of the costs of administration. Note. — This takes the place of Section s of the Act of 1869, i Purd. 1 124, which provides that the appraisers "shall be duly qualified by the sheriff well and truly," etc., and of Section 6 which provides that the sheriff and appraisers shall receive the same fees as are allowed in cases of partition in the orphans' court. 504. RETURN AND CONFIRMATION OF APPRAISE- MENT; APPEALS. (d) The appraisement so made shall be returned to the said orphans' court and, if confirmed by said court, shall be con- clusive on all the parties interested in said real estate, unless an appeal be taken from such decree of confirmation to the proper appellate court within six months after the date thereof. Note.— This is Section 3 of the Act of April 17, 1869, P. L. 72, i Purd. 1124, the period for appeal having been changed from three months to six, the usual period. The phraseology has also been modified so as to make it clear that a decree of confirmation is to be entered. FIDUCIARIES ACT— Section 33 (e) 387 505. CITATION TO ACCEPT OR REFUSE; DECREE ADJUDGING REAL ESTATE TO DEVISEE OR TO OTHER PERSONS; RECORDING AND REGISTRY OF DECREE. (e) Upon the return and confirmation of such appraisement, the court shall issue its citation to the person or persons entitled to take such real estate on compliance with the terms of the will, to appear at a time fixed by said court to accept or refuse the same. If, upon the return of such citation, duly served, such person or persons shall appear and accept such real estate at the appraisement, and shall pay or secure the payment of the amount thereof at such time and upon such terms as shall be fixed by said court, then the court shall adjudge such real estate to such person or persons. If such person or persons shall fail or neglect to appear and accept such real estate at the appraisement or shall refuse to accept it, or, having accepted, shall fail to pay or secure the amount of such appraisement as aforesaid, then the court shall adjudge such real estate to the person or persons entitled thereto under the provisions of the will in the event of such real estate not being taken at the appraisement directed by the testator, or, if the will contains no provision for such event, then the court shall adjudge such real estate to the persons legally entitled thereto. Any such decree may be recorded in the deed book in the office for recording deeds of any county in which such real estate is situated, with the same effect as deeds are recorded, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the grantee's index under the name or names of the person or persons accepting such real estate at the appraisement, or of the person or persons entitled thereto in the event of such real estate not being taken at the appraise- ment, or of the person or persons legally entitled thereto where the will contains no provision for a failure to take at the appraise- ment, as the case may be, and shall be registered in the survey bureau, or with the proper authorities empowered by law to keep a register of real estate, if any there be, in said county, and the charges for recording and registering shall be the same as are provided by law for similar services. Note. — This is Section 4 of the Act of April 17, 1869, P. L,. 72, i Purd. 1 124, modified so as to provide for a citation and to cover the cases of refusal to accept, of failure to pay after accepting, and of failure of the will to provide for a case of failure to take at the appraisement. The provision for recording and registering is new. 388 FIDUCIARIES ACT-SecnoN 33 (/) S06. WHERE REAL ESTATE IS DEVISED TO EXECUTOR AT A VALUATION. (/) In all cases of wills, heretofore or hereafter made and duly proved and recorded, wherein the testator has given or shall give the right to one or more persons to take any or all of his real estate at a certain valuation therein named, and has appointed or shall appoint such person or persons as executor or executors, to whom letters testamentary are issued, such person or persons may present his or their petition to the orphans' court of the county in which such real estate is situated, or, in a case where the real estate is divided by a county line, in the county where the mansion house may be situated, or, if there be no mansion house, in the county where the principal improvements may be, or if there be no improvements, in either county, setting forth the terms and character of such devise or direction, that he or they have been appointed executor or executors of the will, that letters testamentary have been issued to him or them, and formally accepting such real estate at such valuation. Upon the presentation of such petition, the court shall have power to adjudge the real estate to such person or persons, and to decree that he or they shall account for the valuation thereof in the settlement of his or their accounts in the orphans' court having jurisdiction of such accounts. Note. — This is Section i of the Act of March 5, 1903, P. L. 10, i Purd. 1 124, with some changes in phraseology for the purpose of condensation. In the next to the last Hne, "in the orphans' court" has been substituted for "with the register of wills.'' Where a testator devises his real estate at a fixed valuation the real estate is converted and the estate distributable as personalty. In such case a decree under the Fiduciaries Act of June 7, 1917, Section 33 (/)i P- L. 502, adjudging the real estate to the devisee and executor on his petition does not change the situation but is simply confirmatory of what the will has accomplished and amplifies the evidence of title. A voluntary payment of the debts of a decedent out of the proceeds of real estate on which they had lost their lien, when approved by all parties, is commendable and a subsequent reaction against such payment should not be favored. "The devise is somewhat analogous to an executory contract for the sale of real estate entered into by a testator which is executed after his death by a decree of specific performance ; and that such property descends as personalty will not be disputed. No transformation happened because the devisee chose after the expiration of a year from the death of the testator to have entered a decree as permitted by the Fiduciaries Act of 191 7, P. L. 447, Section 33 (/), which authorizes the orphans' court to ad- FIDUCIARIES act-Sections 33 (/), (f7)-34 (») 389 judge real estate to persons to whom the right to take the same at a certain valuation has been given in a will, and who are appoinced executors of the same will. By virtue of this enactment a devisee for a consideration who is also the executor may petition the court to adjudge the real estate to him which had been devised to him and about which there is no ques- tion or uncertainty as to its title, and may also petition the court to have a decree entered against himself ordering himself to account "for the valuation thereof" from which he could not escape had there been no such decree. The act is simply confirmatory and amplifies the evidence of title. It only supplements its publication. The will is the essential demonstration, and by it was the title vested in the devisee at the death of the testator." Per Smith, P. J., in Ruch's Est., yj Lane. 69. 507. VALIDATION OF PREVIOUS DECREES. (gr) Whenever any orphans' court shall have heretofore made a decree adjudging real estate to certain persons, in any case men- tioned and provided for in clauses (>) and (/) of this section, such decree shall be valid and available to vest in the person or persons to whom such real estate was adjudged, all the right, title and interest of the testator who had died, leaving a will wherein the right to accept such real estate was given. Note. — This is Section 2 of the Act of March 5, 1903, P. L. 10, i Purd. 1125. 508. DESIGNATION OF CURTILAGE OR BUILDING DEVISED,— JURISDICTION,— PETITION. Section 34. (a) Whenever, by any last will and testainent, any dweUing-house or other building is devised to any person or per- sons, without defining the boundaries of the curtilage or lot ap- purtenant to such building and necessary for the use and enjoy- ment of the same, it shall be lawful for any of the parties in- terested to apply by petition to the orphans' court of the county in which such building is situate, for the appointment of commis- sioners to designate the boundaries of the curtilage or lot appurte- nant to such building, and necessary for the convenient use of the same, for thd purposes for which it was intended. Note.— This is Section i of the Act of April 14, 1868, P. L. 97, 3 Purd. * 3389, revised by omitting unnecessary verbiage, and by omitting after "last will and testament" the following words : "or by reservation or limita- tion in any deed or deeds of conveyance, or by reservation in any partition between tenants in common or co-parceners,'' and after "devised," the words "bequeathed, reserved or limited." The word "bequeathed" is in- appropriate; and it is difficult to see why the orphans' court should have jurisdiction in cases arising under deeds or amicable partitions, which have nothing to do with decedents' estates. 390 FIDUCIARIES ACT— Section 34 (a), (&), (c) In the seventh line, the words "by petition" have been substituted for "in writing." 509. APPOINTMENT AND COMPENSATION OF COM- MISSIONERS. (b) It shall be the duty of the said court, on presentation of such petition, to appoint two or more disinterested and com- petent persons, as they shall think proper, for the purposes afore- said, which persons shall be sworn or affirmed faithfully to perform their duties as commissioners, and shall be respectively entitled to receive from the estate of the testator, for their services as commissioners, such sum as the said court shall deem proper. Note.— This is Section 2 of the Act of April 14, 1868, P. L. 97, 3 Purd. 3390, changed so as to provide for two or more commissioners instead of three, to require that they be "disinterested and competent" instead of "competent and skilful," to require them to be sworn or affirmed, and to leave the amount of their compensation to the judgment of the court, instead of fixing it at one dollar per day. 510. NOTICE OF PROCEEDINGS OF COMMISSION- ERS; REPORT, CONFIRMATION; RECORD- ING AND REGISTRY OF DECREE; TITLE OF DEVISEE. (c) It shall be the duty of the commissioners so appointed to give reasonable notice to all parties interested of the time at which they will examine said dwelling-house or other building for the purposes aforesaid, and to make' report to the court in pursuance of the order to them directed. In such report, they shall suf- ficiently designate and describe, by metes and bounds, with their courses and distances, and by draft, if necessary, the limits and extent of ground necessary for the convenient use of such build- ing, for the purposes for which it was intended. If such report shall be approved! by the court, a decree of confirmation shall be entered, a certified copy whereof shall be recorded in the deed . book in the office for recording deeds of the county in which said building is situate, in like manner as deeds are recorded, and with the same effect, and shall be indexed by the recorder in the grantors' index under the name of the decedent, and in the grantees' index under the name of the devisee of such dwelling- house or other building, and shall be registered in the survey bureau, or with the proper authorities empowered by law to keep a register of real estate, if any there be, in such county, upon pay- FIDUCIARIES ACT— Sections 34 (c), (rf)-3S (a) 391 ment of fees for such recording and registration at the rates fixed by law for similar services ; and the devisee of such building shall take the same estate in the ground thus set apart as is devised to him in the building. Note.— This is Section 3 of the Act of April 14, 1868, P. L. 97, 3 Purd. 3390, with some changes in phraseology, the omission, at the end, of the words "'reserved or limited," the insertion of the provisions for entry of a decree of confirmation and for recording and registry, and a change in the last clause, which in the Act of 1868, reads that the ground "shall be exclusive property of the occupant of such dwelling house or other build- ing during the full term for which it was devised." 511. PAYMENT OF COSTS. (d) All costs of proceedings under this section, including the fees for recording and registration, shall be paid out of the estate of the testator and shall be considered as part of the costs of administration of the estate. Note. — This is substituted for Section 4 of the Act of April 14, 1868, P. L. 97, 3 Purd. 3390, which reads: "The costs of these proceedings shall be equally divided between all parties interested." That section is un- satisfactory since "all parties interested" is indefinite and "equally" is ambiguous. 512. ABATEMENT AND SURVIVAL OF ACTIONS; SUBSTITUTION OF EXECUTORS AND AD- MINISTRATORS; PLEADINGS AS TO AS- SETS,— PERSONAL ACTIONS, EXCEPT FOR SLANDER AND LIBEL NOT TO ABATE. Section 35. (a) No presonal action hereafter brought, except actions for slander and for libels, and no action for mesne profits or for trespass to real property, shall abate by reason of the death of the plaintifif or the defendant, or by reason of the death of one or more joint plaintiffs or defendants^ but the executor or administrator of the deceased party may be substituted as plaintiff or as defendant, as the case may be, and the suit prosecuted to final judgment and satisfaction. Note. — This and the following clause are intended to cover the whole subject of abatement and survival of personal actions, and to include the subject matter of Section 28 of the Act of 1834, i Purd. nil; Section 18 of the Act of April 15, 1851, P. L. 674, i Purd. 1115; the Act of April 12, 1869, P. L. 27, I Purd. 228, relating to actions for mesne profits and for trespass to real or personal property ; and Section i of the Act of June 24, 189s, P. L. 236, 4 Purd. 4824. 392 FIDUCIARIES ACT— SfiCTioN 35 (0), (b) Section 28 of the Act of 1834 provides that executors or administrators may "commence and prosecute all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander, for libels, and for wrongs done to the person ; and they shall be liable to be sued in any action, except as aforesaid, which might have been maintained against such decedent if he had lived." Section 18 of the Act of 1851 provides that no action "to recover dam- ages to the person by negligence or default, shall abate by reason of the death of the plaintiff; but the personal representatives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction." Section i of the Act of 189S provides that any right of action "by reason of injury wrongfully done to the person of another shall survive the death of the wrongdoer, and may be enforced against his executor or administrator either by continuing against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his representative after his death." The Acts of 1851 and 1895 were intended to amend the Act of 1834 so as to eliminate the words "for wrongs done to the person." There has been some doubt as to whether the Act of 1895 refers only to cases of physical injury or includes such wrongs as malicious prosecution. It seems better to restate the provisions of the law so as to make them entirely clear. ^ Portion in italics added by amendment of March 30, 1921 (P. L. 55). 513. EXECUTORS AND ADMINISTRATORS MAY SUE AND BE SUED IN PERSONAL ACTIONS, EX- CEPT FOR SLANDER AND LIBEL. (b) Executors or administrators shall have power either alone or jointly with other plaintiffs'^ to commence and prosecute all actions for mesne profits or for trepass to real property, and all personal actions which the decedent whom they represent might have commenced and prosecuted, except actions for slander and for libels ; and they shall be liable to be sued either alone or jointly with other defendants in any such action, except as aforesaid, which might have been maintained against such decedent if he had lived. Note;. — This is Section 28 of the Act of 1834, i Purd. iiii (Section 29 of the Commissioners' Draft), inserting the provision as to actions for mesne profits and for trespass to real property, and omitting, after "libels," the words "and for wrongs done to the person." These words were eliminated by the Acts of 1851 and 1895, set forth in the last preceding note. Section 28 of the Act of 1834 was new, and was intended to "place the law respecting the right of executors and administrators to commence and FIDUCIARIES ACT— Section 35 (6), (c), (d) 393 prosecute personal actions upon a certain and equitable basis." The Commissioners of 1830 further remarked that the cases of slander, libel and wrongs done to the person had ''always been excepted here and in England, because being derived mainly from personal considerations, it has been supposed to be against the policy of the law to encourage their trans- mission to or against the representatives of the deceased party. We are disposed to stop with these exceptions, however, and to place all other actions upon the same footing with respect to the right and also form of action, after the death o{ the party as before.'' 1 Portion in italics added by Amendment of March 30, 1921 (P. L. SS). 514. PENDING ACTIONS OF EJECTMENT TO EN- FORCE PAYMENT OF PURCHASE MONEY. (c) In all actions of ejectment which may be pending at the time of the death of any vendor of real estate, when the object is to enforcq the payment of purchase money due and owing upon an agreement of sale of such real estate, it shall and may be lawful for the executors and administrators of the deceased vendor to sustain the same in their own names, to the same extent and in lik^ manner as their testator or intestate, if living, could do. Note. — This is Section s of the Act of April 9, 1849, P. L. 526, i Purd. 1115, modified so as to relate only to actions of ejectment pending at the death of the vendor. If no action has been brought in his lifetime, the remedy in the orphans' court is made exclusive by Section 18 (6) of the present draft (See 460 supra.) 515. EXECUTORS OR ADMINISTRATORS MAY SUE OR DISTRAIN FOR ARREARAGES OF RENT- CHARGE; OR OTHER RENT OR RESERVA- TION, DUE TO DECEDENT. (d) The executors or administrators of every person who was the proprietor of any rent-charge or other rent or reservation in nature of a rent, in fee or otherwise, as mentioned in Section 11, clause (/) , of this act,^ shall and may have an action for the ar- rearages of such rent due to the decedent, at the time of his decease, against the person who ought to have paid such rent, or his executors or administrators; or they may distrain therefor upon the lands or tenements which were charged with the pay- ment thereof, and liable to the distress of such decedent, so long as such lands or tenements remain and are in the seisin or posses- sion of the tenant who ought to have paid such rent, or in the possession of any other person claiming the same, from or under the same tenant, by purchase, gift or descent, in like manner as such decedent might have done if he had lived. 394 FIDUCIARIES ACT— Section 35 (d), (e), (/) Note. — This isl Section 29 of the Act of 1834, i Purd. 11 11 (Section 30 of the Commissioners' Draft), which was founded on Section i, Chapter Z7 of the statute 32 Henry VIII. The words "of debt" have been omitted after "action" in the fifth line. 1 See 397, supra. 516. EXECUTORS OR ADMINISTRATORS OF LIFE TENANT MAY SUE FOR PROPORTION OF RENT DUE UP TO DATE OF DEATH. (e) The executors or administrators of any tenant for life, who shall die before or on a day on which any rent was reserved or made payable upon any demise or lease of any real estate, which determined on the death of such tenant for life, may have an action to recover from the lessee or under-tenant of such real estate, if such tenant for life die on the day on which the same was made payable, the whole, or, if before the day, a pro- portion of such rent for the last year, or quarter of a year, or other current period of payment, according to the time elapsed at the decease of such tenant for life as aforesaid. Note. — This is Section 30 of the Act of 1834, i Purd. iiii (Section 31 of the Commissioners' Draft), which was derived from the statute 11 George II, Chapter 19, Section 15. The words "on the case" have been omitted after "action" in the fifth line. 517. EXECUTORS OR ADMINISTRATORS MAY BE SUBSTITUTED IN PENDING ACTIONS AND MAY ISSUE EXECUTION ON JUDGMENT IN FAVOR OF DECEDENT. (/) The executors or administrators of any person who, at the time of his decease, was a party, plaintifif, petitioner, defendant or respondent, in any action or legal or equitable proceeding pend- ing in any court of this commonwealth, shall have full power, if the cause of action shall by law survive to or against them, to become party thereto and prosecute or defend such suit or pro- ceeding to final judgment or decree, as fully as such decedent might have done if he had lived; and if such party die after judg- ment, certificate, or decree in his favor, his executors or ad- ministrators may proceed to execution thereupon, as such party might have done if he had lived. This clause shall apply whether the decedent is a sole or joint plaintiff, petitioner, defendant or respondent} FIDUCIARIES ACT— Section 35 (/), ( 179I1 3 Sm. L,. 28, Section 8, now altered by inserting the words "or equitable" in the first line, substituting after the word "pending" in the second line, instead of the words "as aforesaid" the words "at the time of the decease of a party, plaintiff, petitioner, defendant or respondent;" and by providing for "a reasonable continuance" instead of a continuance "during one term." The words "at the next succeeding term" have been omitted after "to show cause." 1 Portion in italics added by amendment of March 30, 1921 (P. L. 55). 396 FIDUCIARIES ACT— Sjsction 35 (/i), (t) 519. SERVICE OF SCIRE FACIAS WHEN EXECU- TORS OR ADMINISTRATORS RESIDE WITH- OUT THE COUNTY. (h) Whenever the executor or administrator of a deceased plaintiff, petitioner, defendant, or respondent, in any action or legal or equitable proceeding pending in any court of this common- wealth, resides without the jurisdiction of the said court, the writ of scire facias provided by the preceding clauses of this section may be served on such executor or administrator by the sheriff of the county where he is resident, if in the opinion of the proper court such service may be reasonably practicable; but if other- wise, and also where the said executor or administrator resides in some other state of the United States, such service may be made by publication, in one or more public newspapers, as, in the opinion of the court, will be most likely to give notice to the said executors or administrators; the said manner of service herein provided to have the same force and' effect as the manner of service provided by the said clauses. Note. — This is Section i of the Act of April 6, 1859, P. L. 384, i Purd. 1115. The words ''petitioner,'' "'respondent," and "legal or equi- table" have been inserted in the second and third lines. 520. ACTIONS NOT TO ABATE BY DEATH, DISMIS- SAL, REMOVAL, RESIGNATION OR RENUN- CIATION OF FIDUCIARIES. (<{) No action or other legal or equitable proceeding, com- menced by or against fiduciaries, or in which fiduciaries are parties, shall abate or be otherwise defeated, by reason of the death, dismissal, removal, resignation or renunciation of any one or more of them, nor by reason of the annulling or revoking of the letters or powers granted to them, or any of them ; but such suit or proceeding may be prosecuted to final judgment or decree, by or against such other person or persons as may have been joined with them in the administration or trust, or by or against such person or persons as may be their successors therein, in all cases, in like manner as if no such change had occurred or act been done ; and in all cases of vacancy in the administration or trust as aforesaid, the successors therein shall be made party to such action or proceeding, in the manner provided by clauses (/)j (9) and (h) of this section. FIDUCIARIES ACT— Section 35 (0, (i) 397 NoTU. — This is derived from Section 32 of the Act of 1834, i Purd. IH3 (Section 33 of the Commissioners' Draft), which was founded on Section 7 of the Act of March 24, 1818 (7 Sm. L. 132), P. L. 285, 4 Purd. 4929. The latter section includes "executors or administrators, trustees or as- signees," and is not to be repealed so far as it relates to trustees not within the jurisdiction of the orphans' court, and to assignees. The Act of 1818 related only to cases in which suit was brought by fiduciaries. The Act of 1834 extended this to suits against executors or administrators. Section 13 of the Act of April 9, 1849, P. L. 526, i Purd. 1115, includes cases in which executors or testamentary trustees are plaintiffs. Section 32 of the Act of 1834 is altered, in the present draft, by substi- tuting "fiduciaries" for "executors or administrators,'' by extending it to cases where fiduciaries are parties although the action was not brought by or against them, by adding "removal" in the fourth line, by adding the words "or trust" in the tenth and fourteenth lines, and by substituting a reference to other clauses of the new act for the reference to Sections 26 and 27 of the Act of 1834. The words "or equitable'' have been inserted in the first line. It seems that Section 13 of the Act of 1849, above referred to, may be repealed, as well as Section 7 of the Act of 1818, so far as it relates to fiduciaries within the scope of the present act. 521. FAILURE TO PLEAD ANY MATTER RELATIVE TO ASSETS, OR TO REPLY THERETO, NOT TO BE DEEMED AN ADMISSION. (y) The omission of an executor or administrator to plead to any action brought against him in his representative character, that he has fully administered the estate of the decedent, or any other matter relative to the assets, shall not be deemed an admission of assets to satisfy the demand made in such action ; also the omission of the plaintiff to reply to any such matter when pleaded, shall not be deemed an admission of the want of assets as aforesaid, nor shall such omission otherwise prejudice either party; and no mis- pleading, or lack of pleading, by executors or administrators, shall make them liable to pay any debt or damages recovered against them in their representative character, beyond the amount of the assets, which in fact, have come or may come or should have come into their hands. Note. — This is Section 37 of the Act of 1834, i Purd. 1114 (Section 38 of the Commissioners' Draft), which was new in the Act of 1834. In the last line the words "or should have come" have been added. It might be considered that this section has been rendered obsolete by the statutory changes in the system of pleading. But the Commissioners have concluded to recommend its retention le.it its omission might give rise to some er- roneous inference. 398 FIDUCIARIES ACT— Sections 3S (/O -36-37 522. ABATEMENT OF FAILURE TO TAKE OUT LET- TERS IN DECEASED PLAINTIFF'S ESTATE. (k) In any suit now pending or hereafter to be brought in any court of this state, if the plaintiff be dead or shall die during the pendency thereof, and no letters testamentary or of administration have been or shall be taken out in this state within one year after the suggestion of the death of such plaintiff upon the record, it shall not be the duty of the defendant to raise an administrator for the purpose of prosecuting the same, but the court in which such suit is or shall be pending may, after due service upon the executors named in the will of such plaintiff, if known to defend- ant, or upon the next of kin of the decedent entitled to administra- tion, of a rule to show cause, enter an order that said suit shall abate, unless, before the return day of such rule, letters testa- mentary or of administration shall be duly issued. Note.— This is Section i of the Act of May S, 1854, P. L. 570, l Purd. 228, 2 P. & L. 2665, changed so as to provide for a rule to show cause. The section now provides that at the end of the year the suit shall abate and the prothonotary shall make an entry accordingly, provided that the court shall direct a notice to be served one month before such entry shall be made. 523. STATUTE OF LIMITATIONS TO RUN AGAINST DEBT FALLING DUE TO ESTATE OF DECE- DENT AFTER HIS DEATH ALTHOUGH LET- TERS HAVE NOT BEEN GRANTED. Section 36. The statute of limitations shall begin to run against a debt or demand arising or falling due to the estate of a decedent, after his or her death, from the time such debt or demand shall arise or fall due, as aforesaid, notwithstanding that letters testa- mentary or letters of administration have not been granted on such estate. Note. — This is Section i of the Act of April 6, 1905, P. L,. 114, 6 Purd. 6527. Section 2 is a general repealer. In the next to the last line, "granted" has been substituted for "taken out." 524. SUITS AGAINST FIDUCIARIES WHO DO NOT RESIDE IN COUNTY THE COURT OF WHICH HAS JURISDICTION OF THEIR ACCOUNT. Section 37. In all cases where executors, administrators, guardians or trustees shall not reside within the county the FIDUCIARIES ACT— Section 37 399 orphans' court of which has jurisdiction of their accounts, pro- ceedings may be had and suits may be brought against them by creditors and .others interested in the estates, in the counties where such accounts are to be settled, and process may be served on said fiduciaries, in any other county by the sheriff of such other county, who shall be deputized for that purpose by the sheriff of the county in which the process issues, or process may be served upon any surety on the official bonds of such fiduciaries. Note.— This is Section i of the Act of March 27, 1854, P. L. 214, 4 Purd. 4929, with the insertion of the words "guardians or" instead of "assignees or other," thus limiting the section to fiduciaries within the scope of the present act. The Act of 1854 is not recommended for repeal so far as it relates to other fiduciaries. The words "the county the orphans' court of which has jurisdiction" have been substituted for "the jurisdiction of the court having control." The provision as to deputizing the sheriff of another county has been sub- stituted for the following: "and process may be served by proper officers of said counties, or their deputies, on said executors, administrators, as- signees or other trustees beyond the bounds of said counties, as if they resided therein, or upon any surety on their official bonds, with like effect as if they had resided within the jurisdiction of the courts having control of their accounts." A writ of summons can be served by the sheriff upon an executor tem- porarily within his jurisdiction whose residence is in another county where the letters were granted. The purpose of the Acts of March 2T, 1854, P. L. 214, and of June 7, 1917, P. L. 447, Sec. 37, was to assist creditors and others and not to pro- tect] the fiduciary nor to limit the suit to a particular jurisdiction. Cohn died in Philadelphia on June 24, 1917, having made his last will and testament, duly admitted to probate before the Register of Wills of Philadelphia County, and letters testamentary were granted to the de- fendant. On August IS, 1918, the plaintiff brought an action in assumpsit in the Court of Common Pleas of Lancaster County against the defendant as executor of the decedent, and while the defendant was visiting there, the Sheriff of Lancaster County served the writ of summons upon him. The sole question raised in the proceeding was whether a writ of summons can thus be served by the Sheriff upon an executor whose residence is in another county while the defendant is in his jurisdiction. In discharging a rule to set aside the summons the court, per Landis, J., said: "By the Act of June 7, 1917, P. L. 447, called 'The Fiduciaries Act,' the Act of 1854 is expressly repealed, 'so far as it related to fiduciaries subject to the jurisdiction of the orphans' court' (see page 543), and in lieu thereof, the 37th section was inserted, as follows: (quoting it). This, too, is a statute made for the benefit of creditors and others, but not to protect the fiducia?-y nor to limit the suit to a particular juris- 40O FIDUCIARIES ACT— Sections 37-38-39 diction. Particularly is this so, if personal service can be had, for under such circumstances, what good reason would there be for going to an- other county to accomplish a purpose which could as well be reached at home?" Harris v. Blatt, 28 Dist. 11, 35 Lane. 361, 8 Leh, 80, 66 P. L. J. 648, 32 York loi. 525. SUITS BY FIDUCIARIES AGAINST COFIDU- CIARY. Section 38. Where one of two or more fiduciaries shall be personally or individually indebted, obligated or liable to the estate which he represents, it shall be lawful for the other fiduciaries, or either of them, to institute an action at law, bill in equity, or other appropriate legal or equitable proceeding, on behalf of the said estate, against such fiduciary, individually, to recover or enforce the said indebtedness, obligation or liability, in the same manner as though such fiduciary were not connected with the said estate : Provided, That this shall not in anywise affect the duty or liability of such fiduciary to account therefor in the office of the register of wills or in the orphans' court in the manner now provided by law, the remedy herein provided being in addition to other remedies, legal or equitable, already existing. Note. — This covers Sections 1 and 2 of^the Act of May 11, 1901, P. L. 174, I Purd. II 15, substituting "fiduciaries" for "executors, administrators, guardians, assignees, or trustees," inserting "or liable," and "or lia- bility," substituting "other" for "remaining" in line 4, and inserting in the proviso the words from "office" to "in the." Since the Act of 1901 includes assignees and trustees other than those over whom the orphans' court has jurisdiction, it should not be repealed generally. "If Edwin A. Yarnall, the executor not indebted, had, under Section 38 of the Fiduciaries Act of June 7, 1917, P. L- 447, proceeded against his co-executor for the amount of the note, it would have been a good defence for Albert T. Yarnall to have averred that his distributive share would be sufficient to pay said indebtedness. Mutual demands extinguish each other, and the indebtedness to the estate by a legatee has always been considered a payment on account of the legacy : Palmer's Estate, 2 Del. 180, and cases there cited." Thompson, J., in Young's Est., 30 Dist. 182. 526. REVIVAL OF JUDGMENT AGAINST EXECUTOR OR ADMINISTRATOR OF JUDGMENT CRED- ITOR. Section 39. In all cases where a creditor has appointed or shall appoint his judgment debtor his e-xecutor, or where such FIDUCIARIES ACT— SecTioNs 39-40 401 judgment debtor has been or shall be appointed administrator of the creditor, and the said judgment is a lien on the real estate of such executor or administrator, and the same is bequeathed specifically to a legatee, or generally in the residuary clause of such testator's will, or where any testator or intestate, having a judgment situated as aforesaid, shall have creditors interested in preserving the lien of such judgment, such legatee or creditor or the next of kin of an intestate, interested in such judgment, may suggest his or their interest in the same upon the record thereof, and issue al writ of scire facias against the defendant, to revive the same, and continue the lien thereof, at any time when such proceedings shall be necessary under the laws of this com- monwealth; which judgment, so revived, shall remain for the use of all persons interested therein. Note. — This is Section 2 of the Act of April 3, 1829 (10 Sm. L. 317) P. L. 122, I Purd. 1 109, changed so as to cover the case of an adminis- trator as well as an executor. 527. COMPROMISE BY FIDUCIARY OF CLAIMS AGAINST ESTATE, OR QUESTIONS AS TO WILL OR DISTRIBUTION. Section 40. Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against a minor or the estate of a decedent, or to compromise or settle any question or dispute concerning the validity or construction of any last will and testament or the distribution of any decedent's estate, the orphans' court having jurisdiction of the accounts of the fiduciary shall be authorized and empowered, on petition by such fiduciary, setting forth all the facts and circumstances of such claim or question and proposed compromise or settlement and duly verified by oath or affirmation, and after due notice to all parties interested, and after due consideration, aided, if necessary, by the report of a master, if satisfied that such compromise or settlement will be for the best interests of such minor or of the estate of such decedent, to enter a decree authorizing the same to be made, which decree shall operate to relieve the fiduciary of responsibility in the premises. Note. — This is a new section. It would seem that, at present, it is doubtful whether the orphans' court has power to authorize compromises, which must be made by fiduciaries 26 402 FIDUCIARIES ACT— Sections 40-41 (o) i on their own responsibility: I^owery's Estate, g Pa. C. C. 88; Morton's Estate, 201 Pa. 269. Such jurisdiction however has been frequently exercised to the very great advantage of the parties litigant or concerned in the dispute; and it is proposed in this section to place the jurisdiction of the court beyond question. Otherwise, a fiduciary may feel bound to litigate and thus throw the chances of the litigation on his cestui que trust or ward, or assume the responsibility of the settlement and take the chance of having his conduct questioned in the future. 528. INVESTMENTS BY FIDUCIARIES,— LEGAL IN- VESTMENTS,— DEBT OF UNITED STATES, ETC. Section 41. (a) i. When the fiduciary shall have in his hands any moneys, the principal or capital whereof is to remain for a time in his prossession or under his control, and the interest, profits or income whereof are to be paid away, or to accumu- late, or when the income of real estate shall be more than sufficient for the purpose of the trust, such fiduciary may invest such moneys in the stock or public debt of the United States, or in the public debt of this commonwealth, or in bonds or certifi- cates of debt now created or hereafter to be created and issued according to law by any of the counties, cities, boroughs, town- ships, or school districts of this commonwealth, or in mortgages or ground rents in this commonwealth : Provided, That nothing herein contained shall authorize any fiduciary to make any invest- ment contrary to the directions contained in the will of the de- cedent in regard to the investment of such moneys. Note. — This and the next two paragraphs are a combination of Section 14 of the Act of March 29, 1832, i Furd. 1109, Section 2 of the Act of April 13, 1854, F. L. 369, I Purd. mo, and Section i of the Act of May 8, 1876, P. L. 133, I Purd. mo. The Commissioners believe that the powers of investment granted to fiduciaries under the present law are too greatly restricted and that their enlargement would be welcomed throughout the State. At present trustees are limited to loans of the United States, the State of Pennsylvania, municipal corporations of the State, mortgages and ground rents; and according to the literal wording! of the statutes the decree of the orphans' court should be first obtained, although in practice the statutes have been considered as authorizing the investments specified, and the necessity of a preliminary application has been disregarded. The Commissioners would be willing to recommend a more extensive act were it not for the Constitution, which in Art. Ill, Section 22, would seem to prohibit the legislature from authorizing an investment in the bonds or stocks of a private corporation. They have, however, drafted FIDUCIARIES ACT— Section 41 (a) i 403 this section so as to include investments in bonds of municipal corporations in other states, requiring, in such instances, a preliminary application to the court for authority to make such investments. The division into three paragraphs has been made for the purpose of clearness. The investments enumerated in paragraph i are made legal investments without application to the court. The requirement of the existing laws that the approval of the court shall be obtained in every case is .disregarded in practice; and it seems better to omit this require- ment except in cases of investments in real estate in Pennsylvania or in bonds of other states or of municipalities outside of the commonwealth, as enumerated in paragraph 2. Section 14 of the Act of 1832 was copied from the Act of February 18, 1824, P. L. 25, except that it authorizes the investment of surplus income of real estate as well as principal and interest of personal estate. The above-mentioned sections of the Acts of 1854 and 1876 apply to all trustees, and should be repealed only so far as they relate to fiduciaries who are within the scope of the present draft. An investment by a trust company under the supervision of the De- partment of Banking in the bonds issued by a private corporation, security for which is a mortgage covering the real estate owned by the private corporation, is not a legal investment under the constitution and laws. Myers, Dep. Atty. Gen., in an opinion to the Banking Commissioner August i6th, 1920, said : — "There is nothing contrary to Section 22, Art. Ill of the Constitution in Section 41 (a) of the Act of June 7, 1917, P. L. 447. That act does not autliorize fiduciaries to invest in the bonds or stock of any private corpora- tion. "You are therefore advised that the investment by a trust company under the supervision of your department in the bonds issued by a private cor- poration, security for which is a mortgage covering the real estate owned by the private corporation, is not a legal investment under the Constitu- tion and laws of the commonwealth." Hotel Mortgage, 50 Pa. C. C. 82; s. c. sub nom In re Trust Funds, 68, P. L. J. 608. Where an individual owning real estate in the City of Philadelphia made a first mortgage on the same to a trust company as trustee to secure an issue of 450 $1,000 bonds, Hon. Robert S. Gawthrop, First Deputy Attorney General in an opinion on November 4, 1921, to the Commissioner of Banking held that such bonds were not comprehended under the word "mortgages" as used in this section of the Act and could not therefore be considered as legal investments for trust funds. In so holding he said: "Manifestly, the bonds in the present case do not fall within any class of securities described in the above cited section of the act unless it be that they are comprehended within the meaning of the words 'mortgages in Pennsylvania.' If the question were an open one in this State, I should have no hesitation in concluding that the investment in these bonds is not an investment in a mortgage in the Commonwealth. One who buys one of the four hundred and fifty $1,000 bonds, secured 404 FIDUCIARIES ACT— Section 41 (a) 1, 2 though it be by a first mortgage given by a trustee, in my opinion, does not invest his money in a mortgage. The owner of the bond has no such independent control of the mortgage as he would have if he owned the mortgage. The question is not one of the safety of the investment, but one of the character thereof as required by the statute. It would have been a simple manner for the Legislature when it enacted the Fiduciaries Act to have authorized trustees to invest in bonds secured by mortgages on real estate situate and owned by individuals in the Commonwealth, but it did not do so and thereby continued the policy of requiring the utmost conservatism in providing legal investments for trust funds." Legal Investments, 69 P. L. J. TJ7, 7 Pa. State Dept. Rep. 2060. (Note: — This is contrary to the expressed opinion of many leaders of the bar. — Editor.) 529. INVESTMENTS IN OTHER REAL ESTATE WITHIN THE COMMONWEALTH, OR IN DEBTS OF OTHER STATES OR COUNTIES OR CITIES THEREOF. 2. When a fiduciary shall have in his hands any moneys, as aforesaid, he may present a petition to the orphans' court having jurisdiction of his accounts, stating the circumstances of the case and the amount or sum of money which he is desirous of investing; whereupon it shall be lawful for the court, upon due proof, aided, if necessary, by the report of a master, to make an order directing the investment of such moneys in real estate in this commonwealth other than ground-rents, or in the bonds or certificates of debt now created or hereafter to be created and issued according to law by any other state of the United States or by any of the counties or cities of such other state, at such prices, or on such rates of interest and terms of payment respectively, as the court shall think fit : Provided, That no such investment shall be directed unless it shall be the opinion of the court that it will be for the advantage of the estate and no change be made in the course of succession by such investment as regards the heirs or next of kin of the cestui que trust : And provided further, That nothing herein contained shall authorize the court to make an order contrary to the directions contained in any will in regard to the investment of such moneys. See Legal Investments, 69 P. L. J. 777, 7 Pa. State Dep. Rep. 2060. FIDUCIARIES ACT— Sections 41 («) 3, (b)-42 (a) 405 530. FIDUCIARY NOT LIABLE FOR LOSS ON SUCH INVESTMENTS. 3. In case the said moneys shall be invested as set forth in paragraph i of this clause, or conformably to the directions of the court under paragraph 2 of this clause, the said fiduciary shall be exempted from all liability for loss on the same, in like manner as if such investments had been made in pursuance of directions in the will creating the trust, it being hereby declared that the in- vestments mentioned in this section are legal investments of moneys by fiduciaries. 531. EXPENSE OF PROCURING GUARANTY OF IN- VESTMENTS. (b) Any fiduciary required by law, by the order of any orphans' court, or by the provisions of any last will and testament, under or by authority of which such fiduciary is acting, to invest funds within his control in mortgages or other securities, may include, as a part of the lawful expense of executing his trust, a reasonable sum paid to a^ company, authorized under the laws of this state so to do, for guaranteeing the payment of the principal and interest of such mortgage or other securities, not exceeding one-half of one per centum per annum'^ upon the principal of such mortgage or other securities. Note.— This is Section i of the Act of May 28, 1907, P. L. 271, 5 Purd. 5893, changed by substituting the word "fiduciary" for "receiver, assignee, guardian, committee, trustee, executor, or administrator,'' and omitting the reference to "any assignment, deed * ♦ * or other document." The Act of 1907 should be repealed only so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. Section 2 of the Act of 1907 is a general repealer. 1 Added by Amendment of May 2, 1919, (P. L. 144). 532. ORGANIZATION OF CORPORATION TO CARRY ON DECEDENT'S BUSINESS,— PROPERTY OF ESTATE MAY BE CONTRIBUTED IN RETURN FOR STOCK WHETHER OR NOT THE WILL AUTHORIZED CARRYING ON THE BUSINESS. Section 42. (a) Fiduciaries may themselves, or jointly with others, organize a corporation to carry on the business of the decedent, whether he die testate or intestate, whether the business 406 FIDUCIARIES ACT— Section 42 (o), (6) was owned solely by him or in partnership with others, if such business be one for which a charter could have been obtained in the lifetime of the decedent, and may contribute all or part of the property of the estate which was invested in the business at the time of the death of the decedent, as capital to such corpora- tion and accept stock in the corporation in lieu thereof. Note. — This and the two following clauses are based upon Section i of the Act of April 22, 1889, P. L. 42, 4 Purd. 4928, extended to cases of guardians and administrators and to cases where the will does not authorize or direct the continuance of the business. Cases where the testator was a partner with others are also included, and the phraseology has been modified. The Commissioners have considered that the provisions of the Act of i88g might well be extended in this way. Very often the testator is en- gaged in a profitable business and its incorporation will obviously be of great benefit to the cestuis que trust interested in the estate, or when the decedent dies intestate the interests of his minor children can best be conserved by an incorporation of the business. In the present state of the law this cannot be done by trustees or guardians without possible risk to them personally; and in cases of a partnership dissolved by death, where the partnership articles do not sufficiently protect the estate of the deceased partner, a forced liquidation may be disastrous. As the incorporation must be effected under the supervision of the court, it is conceived that the interests of all parties concerned will be properly safeguarded. 533. APPROVAL OF ORPHANS' COURT NECESSARY ; PROCEDURE. (b) No such corporation shall be organized without the ap- proval of the orphans' court having jurisdiction of the accounts of such fiduciaries first had and obtained, upon petition filed setting forth all the facts and circumstances and the proposed terms and conditions of the organization. Such notice as shall be prescribed by said court shall be given to all persons having any beneficial interest, vested or contingent, in the estate of the decedent, who are in being at the time of the filing of such petition ; and the said court shall approve such organization only after inquiring into the circumstances and the proposed terms and conditions of such organization, aided, if necessary, by the re- port of a master, and only with the written consent of all j>ersons interested who shall be sui juris, and of the guardians or com- mittees of such as shall be under age or non compos mentis FIDUCIARIES ACT— Sections 42(b), (c)-43 407 Note. — In this clause, the phraseology has been altered and the pro- visions of the Act of 1889 for the appointment of special guardians or committees in such proceedings and for the consent of the husbands of persons interested have been omitted. 534. HOW STOCK SHALL BE HELD; VOTING STOCK. (c) The stock of any such corpara^tioni issuedj to such fiduciaries shall be held by them for the same uses, trusts and persons as the estate and property were held before the organiza- tion of such corporation; they shall have the same right and power to vote such stock, subject to the same control by the court, as prescribed by Section 43 of this act regarding shares of stock belonging to the decedent ; and they shall have the right to sell such stock under the direction of the court. Note. — In this clause, "the stock of any such corporation issued to such executors," etc., has been substituted for "the whole of the proceeds of the trust estate, whether contributed or sold, and whether paid for by shares or money," and the provisions as to voting and sales have been added. 535- VOTING OF STOCK IN CORPORATIONS BY FIDUCIARIES. Section 43. Fiduciaries, whether appointed by last will and testament or by decree of the orphans' court, shall have the same right and power, either in person or by proxy, at all corporate meetings, to vote any and all shares of stock, held by them in a fiduciary capacity, in any corporation organized under the laws of this commonwealth, as the deceased, or legal owner thereof had in his lifetime. And where such stock is registered on the books of such corporation in the name of, or has passed by opera- tion of law or by virtue of any last will and testament to more than two fiduciaries, and dispute shall arise among them, the said shares of stock shall be voted by a majority of such fiduciaries, and in such manner and for such purposes as such majority shall author- ize, direct or desire the same to be voted. If the number of fiduciaries shall be even and they shall be equally divided upon the question of voting such stock, it shall be lawful for the orphans' court having jurisdiction of their accounts, upon petition filed by any of such fiduciaries or by any party in interest, to direct the voting of such stock in the manner which, in the opinion of said court, will be for the best interests of the parties bene- ficially interested in the stock. 4o8 FIDUCIARIES ACT— Sections 43-44 (o), (6) Note. — This is Section i of the Act of March i6, 1905, P. L. 42, 5 Purd. 5890, altered by substituting "fiduciaries" for "executors, administrators, guardians and trustees," and "the orphans' court" for "the proper court," and by omitting, after "lifetime,"' in line 8, the words, "or during his legal ownership thereof," which seem not to apply to trusts within the scope of the present draft. The Act of, 1905 is apparently intended to include trustees appointed by the common pleas, though it makes no provision as to trustees appointed by deed. The act should be repealed only so far as relates to fiduciaries who are within the scope of the present act. The expression "any corporation in this commonwealth or organized under the laws of the same" has been changed to "organized under the laws of this commonwealth," and "certified, or stands on the books" has been changed to "registered on the books." The last sentence is new. 536. LIABILITY OF EXECUTORS AND ADMINISTRA- TORS FOR INTEREST,— WHEN LIABLE. SECTION 44. (a) No executor or administrator shall be liable to pay interest but for the surplusage of the estate remaining in his hands or power when his accounts are or ought to be filed : Provided, That nothing herein contained shall be construed to exempt an executor or administrator from liability to pay interest, where he may have made use of the funds of the estate for his own purposes. Note. — This is Section 17 of the Act of March 29, 1832, i Purd. 1125 (Section 18 of the Commissioners' Draft). It was derived, as to the first sentence, from Section 6 of the Act of March 27, 1713, i Sm. L. 81, which, however, included the words "guardian or trustee." The proviso was new in the Act of 1832. The Commissioners of 1830 reported that this section ought not to in- clude guardians or trustees, "inasmuch as they are liable for interest upon entirely different principles, and not merely after the period when their accounts 'are or ought to be settled.' " The changes now made are : to substitute "filed" for "settled and ad- justed," to omit "in the register's office," after "filed ;" and to omit, at the end, "previously to the time when his accounts are or ought to be filed as aforesaid." 537. RATE OF INTEREST. {b) The amount of interest to be paid in all cases by fiduciaries shall be determined by the orphans' court, under all the circumstances of the case, but shall not, in any instance, exceed the legal rate of interest for the time being. Note. — This is Section 18 of the Act of March 29, 1832, i Purd. 1126 (Section 19 of the Commissioners' Draft), which was new in that act. FIDUCIARIES ACT— Sections 44 (6) -45 409 The only change is to substitute "fiduciaries'" for "'executors, administra- tors and guardians." 538. SAME PERSON SHALL NOT RECEIVE COMMIS- SIONS AS EXECUTOR AND TRUSTEE. Section 45. In all cases where the same person shall, under a will, fulfill the duties of executor and trustee, it shall not be law- ful for such person to receive or charge more than one commission upon any sum of money coming into or passing through his hands, or held by him for the benefit of other parties ; and such single commission shall be deemed a full compensation for his services in the double capacity of executor and trustee: Provided, That any such trustee shall be allowed to retain a reasonable commission on the income he may receive from any estate held by him in trust as aforesaid. Note.— This is Section i of the Act of March 17, 1864, P. L- S3, i Purd. 1127. The words "income" and "estate" are substituted for "interest" and "sum" in the last two lines. Where the will directs the executors to pay over to the trustees all dividends, interest and returns of principal as received, so that the tes- tator himself must have contemplated that, before making disbursements of income, the trustees would deduct their lawful commissions thereon, and where an allowance of trustees' commissions on income at s per cent, is not excessive for the services rendered, it is immaterial to the cestuis que trust whether one trustee retained all the commissions credited against income or divided them with his co-trustee, who, as executor received a part of the commissions allowed the executors on the same income, and the court will allow the trustees credit for the full amount of such com- missions. "It may well be doubted if the Act of March 17, 1864, P. L. S3, or the succeeding act, section 45 of the Fiduciaries Act of June 7, 1917, P. L. 447. 511, applies to income, although it goes without saying that under ordinary circumstances, where an accountant is both executor and trustee, he would be allowed but one commission on income collected. The question would not have arisen if the executors, had, as is customary, distributed the income direct to the life-tenants ; but they were prevented from doing this by the language of the will, which, by the seventh paragraph thereof, directs the executors to pay over to the trustees all dividends, interest and returns of principal as received, so that the testator himself must have contemplated that, before making disbursements of income, the trustees would deduct their lawful commissions thereon. Assuming, therefore, as we must fromj the record before us, that an allowance of commissions on income at S per cent, is not an excessive allowance for the services rendered, it is, as pointed out by the auditing judge, immaterial to the 410 FIDUCIARIES ACT— Sections 45-46 (a) cestuis que trust whether the Fidelity Trust Company retained all the commissions credited against income or divided them with its co-trustee. GuMMEY, J., in Merchant's Est., 30 Dist. 92. 539- ACCOUNTS OF EXECUTORS, ADMINISTRA- TORS AND TRUSTEES,— ACCOUNTS OF EX- ECUTORS AND ADMINISTRATORS TO BE FILED IN SIX MONTHS; MAY BE CITED TO ACCOUNT AT END OF SIX MONTHS. Section 46. (a) It shall be the duty of every executor and administrator td file in the register's office a just account of the administration of the estate at the expiration of six months from the time of administration granted or when thereunto required by the orphans' court, and any executor or administrator may be cited to file his account, after the expiration of six months from the date of issuance of letters testamentary or of administra- tion, on petition of any person having an interest, present or future, vested or contingent, in the estate of the decedent, or on petition of any creditor of the decedent. Note. — The first part of this clause is derived from Section 15 of the Act of March 15, 1832, P. L. 139, i Purd. 1089, but the period is reduced from one year to six months, "at the expiration of" is substituted for "within,"! and "required by the orphans' court" for "legally required." The remainder of the clause is new, is declaratory of the existing law, and embodies the provisions of the first part of Section i of the Act of April 17, 1869, P. L. 70, I Purd. 1138, which enables the owner of any contingent interest in the personal property of any decedent to require an executor or administrator to file his accounts. The remainder of that section, enabling the owner of a contingent interest to require the legatee of any previous interest in the same property to give security, is covered by Section 23 of the present draft. (Se? 469 supra.) Formerly the term of one year was perhaps a convenient period for filing an account, but under modern conditions of rapid communication and transportation, it is no longer necessary or advisable. The majority of estates can now be settled by the end of six months, and it is often a great hardship to legatees and creditors to compel them to wait for a full year before their just claims can| be satisfied. And where the estate is so complicated that a final account cannot be rendered at the end of six months, a partial account may be filed, debts paid or at least ascertained with some degree of certainty, and the will construed by the court at the audit of the account. The Commissioners are of opinion that this shortening of the term will be of great advantage. ^This should apparently be "in." See form 81. FIDUCIARIES ACT— Section 46(0) 411 The court will not open a duly filed and confirmed administration ac- count on the petition of a next of kin and a creditor, who failed to give written notice of their claims to the accountant as required by Section 46, (c), of the Fiduciaries Act, 1917, P. L. 447, and who had notice of the filing of the account from one other than the accountant, on the ground that the administrator had not given them actual notice of the filing of the account. Interested parties, who request it, should have ample notice of the time and place of the application for the appointment of an auditor to distribute the balance on an administration account. Morthland's Est., 32 York 137. The provision of the Fiduciaries' Act requiring an accounting by execu- tors, etc. at the expiration of six months, does not apply where decedent died prior to the passage of the Act. Amodei's Est., 27 Dist. 373. Except in the case of an administration pendente lite or de bonis non, an account of an executor or administrator filed before the expiration of six months from the grant of letters is premature, and distribution, if made, is at the risk of the accountant, although six months have elapsed between the death of the decedent andi the date of audit. "The section of the Fiduciaries Act of 1917 above quoted now takes the place of section 15 of thq Act of March 15, 1832, P. L. 13S, and reduces the time for filing an account from one year to six months ; but the reason- ing of the judge who filed the opinion in Clemen's Estate (21 Dist. 175), applies with greater force to the present act, in which the words "at the expiration of" are substituted for the word "within." In order, however, that any question as to the proper time for the filing of an account might be set at rest, we incorporated in Rule II of this (Phila.) court the following section: "i. Accounts of executors and administrators will not be audited unless filed after the expiration of six months from the date of the grant of letters testamentary or of administration, except in the case of administra- tions, pendente lite and administrations de bonis non, where more than six monthsl have elapsed since the granting of the original letters." The reasons for excepting administrations pendente lite and those de bonis non are set forth in Clemens's Estate, 21 Dist. R. 175, and if authority is needed for our right to make this matter the subject' of a rule of court (which counsel seemed to doubt) it is to be found in section 10 of the Orphans' Court Act of 1917, and in McGreevy v. Kulp, 126 Pa. 97 ; Gannon V. Fritz, 79 Pa. 303, and numerous other cases.'' Gummey, J., in Hayden's Est., 28 Dist. 39. "Under the Act of March isth, 1832, P. L. 139, Pur. Dig., page 1089, an executor or administrator was required to file "a just account and settlement of," the "goods, chattels and credits" of the deceased, "in one year, or when thereunto legally required." In the Commissioners' note to Sec. 46 (a) of the Fiduciaries Act of 1917, it is inadvertently stated that in this section of the Act of 1832, the word "within" is used, but it is intended doubtless to refer to Section 24 of the Act, Purd. Dig., page 1078, where the form of the condition of the fiduciary's bond is prescribed, which includes an obligation to account "within one year" from its date, or when thereunto legally required. Under Sec. 38 of the Act of 1832, Purd. Dig. 412 FIDUCIARIES ACT— Section 46(0) page 1 130, no distribution could be enforced "until one year be fully expired from the granting of the administration of the estate." In construing this statute, in Raestaetter's Estate, 15 Sup. Ct., 549, that court held that the words "in one year," meant "at the expiration of one year." It was the practice in this court prior to the passage of the Fiduciaries Act of 1917, to audit accounts filed within a year after letters were granted at any time fixed for the audit of cases after the expiration of a year from the grant of letters ; in other words, this court did not rule that an account could not be filed within the year, but that, if so filed, it could be audited after the expiration of a year from the| grant of letters. The law respecting the matters involved in this adjudication has been altered by the Fiduciaries Act of 1917 as shown by the following pro- visions in the several sections of the Act which are cited. There must be a bond, conditioned, inter alia, for an accounting "at the expiration of six months from its date" 8 (a) ; a just account of the administration of the estate filed in the Register's office 46 (rf) ; "at the expiration of six months from the time of administration granted, or when thereunto legally re- quired" 46 (a) ; and there is a prohibition against compulsory, distribution "until six months be fully expired from the granting of the letters testa- mentary or of administration in the estate" 49 (a). An account filed with the Register of Wills at the expiration of six months from the grant of letters, under 46 (rf) will be transmitted by him to the orphans' court at its next stated meeting after the account is filed, not less than thirty days distant at the time of filing the account, and, after advertisement for four weeks, it will be presented to said court for confirmation. In counties where separate orphans' courts are established, "all accounts filed in the office of the Register of Wills, or in the orphans' court, by fiduciaries, shall be examined and audited by the court" 47 (b) ; and, if a creditor, who has notified the fiduciary of his claim and has received notice of the filing of the account, does not present his claim, "at an audit held not less than six months after the grant of letters testamentary or of administration," duly advertised as required in Sec. 10, he will not be en- titled to receive "a share of the assets distributed in pursuance of such audit, whether the estate be solvent or insolvent" 49 (d). Under 47 (a) the judges of the orphans' court have power and authority "to establish in their discretion such rules and regulations as they may deem proper, for the publication of advertisements of notices of the auditing of ac- counts of fiduciaries * * ^ as well as by special order in particular cases, as by general rules." Now, when it is required of a fiduciary, deriving his powers and authority from letters granted by the Register of Wills, to file an account at the expiration of six months, and of the Register of Wills that he advertise that account for four weeks and transmit, after the advertisement thereof, to the orphans' court for confirmation at its next stated meeting after it is filed, being not less than thirty days distant from the time of filing, it cannot be argued from the sections of the Fiduciaries Act relied upon in coming to the conclusion in this case, that the fiduciary can volun- tarily file his account within six months from the grant of letters, or, that there can be an audit and confirmation immediately after the e:{piration of FIDUCIARIES ACT— Section 46(a), (fc) 413 six months from the grant of letters. Creditors and all parties interested in the distribution are entitled to the Register's published notice of the filing of the account at the expiration of the statutory period required for administration, and when the protection afforded by these sections of the Act herein referred to is invoked, there must be a strict corapHance there- with before there can be an exercise of the judicial functions of audit and final confirmation necessary to make a decree binding upon them.'' Cooper's Est. 29 Dist. 230, 67 P. L. J. 17; 36 Lane. 266, 20 Lack. 46, 32 York, 145. One who has a prima facie claim against the estate of a decedent is entitled to require an account by personal representatives. The orphans' court will not deny a creditor of a decedent the right to proceed to have his claim adjudicated in that court and relegate him to his common law action. "The question presented is whether the petitioner has sufficiently shown himself to be a creditor so as to be entitled to compel the filing of an account. The rights of creditors seem to be the same under the Fiduciaries Act as they were under the prior existing law. * * * In any event the right of a creditor to proceed in the orphans' court seems to be concurrent with his right to proceed by a common law action. PhiHp's Administrator v. Railroad Company, 107 Pa. 465. We know of no case which holds that the court may relegate a creditor to his common law action and deny him the right to proceed to have his claim adjudicated at the orphans' court. We are, therefore, of opinion that the petitioner is entitled to require the filing of an account." Laverty's Est.. 50 Pa. C. C. 259, 24 Dauphin 107, 30 Dist. S07. 540. ORPHANS' COURT MAY APPOINT EXAMINERS TO MAKE EXAMINATIONS OF ASSETS IN HANDS OF FIDUCIARIES. (b) The several orphans' courts of this commonwealth shall have power, by general rule or special order, to appoint one or more examiners to make periodical or special examinations of the assets of estates in the hands of fiduciaries, and poweri to require all persons in whose custody or control such assets may be held, to present them for such examination. The examiners so ap- pointed shall be compensated by reasonable fees to be fixed by the court and to be paid out of the respective estates. Note. — This is a new section. At present the orphans' court has not explicitly been given this general power, and the deplorable cases of embezzlement, especially by trustees, that occur from time to time have induced the Commissioners to recom- mend this provision as at least a partial preventive. 414 FIDUCIARIES ACT-SecTioN 46 (e), W 541. CLAIMANTS WHO HAVE NOTIFIED EXECU- TORS, ADMINISTRATORS OR TRUSTEES TO BE ENTITLED TO RECEIVE ACTUAL NOTICE OF FILING OF ACCOUNTS. (c) The several orphans' courts of this commonwealth shall by general rule provide that any person who, claiming to be in- terested in the estate of any decedent as creditor, legatee, next of kin or otherwise, has given written notice of his claim to the exec- utor, administrator or trustee, or his attorney, shall be entitled to receive actual notice from said executor, administrator or trustee, or his attorney, of the filing of his account; or such rule of court may provide for the filing of such claims with, and the giving of notice by, the register of wills or the clerk of the orphans' court. Note. — This is a new clause. The attention of the Commissioners has been called by numerous sug- gestions from members of the Bar to the advisability of a provision of this nature. It is certainly fair and conducive to an orderly procedure in the settlement of decedents' estates that a creditor or other person in- terested, who has given notice of his claim, should be apprised of the filing of the account. The Commissioners are of opinion that it is better to provide for the procedure by rules of court than by a peremptory statute, as the comparative elasticity of rules of court will enable the court to arrive at a just result in each particular case. The court will not open a duly filed and confirmed administration ac- count on the petition of a next of kin and a creditor, who failed to give written notice of their claims to the accountant as required by Section 46, (c), of the Fiduciaries Act, 1917, P. L. 447, and who had notice of the filing of the account from one other than the accountant, on the ground that the administrator had not given them actual notice of the filing of the account. Interested parties who request it, should have ample notice of the tijne and place of the application for the appointment of an auditor to distribute the balance on an administration account. Morthland's Est., 32 York 137. 542. REGISTER'S DUTIES AS TO TRANSMISSION AND. ADVERTISING OF ACCOUNTS; EX- PENSE'S. {d) Every register, with whom an account has been or shall be filed, shall transmit the same to the orphans' court of the respective county, at its next stated meeting, being not less than thirty days distant from the time of such filing, of all which he FIDUCIARIES ACT— Section 46 (rf) 415 shall give notice to all persons concerned, in the following manner, viz : by an advertisement enumerating all the accounts to be pre- sented at any one time to the said court, in at least two secular newspapers, if there be two, published in the respective county, or if there be but one newspaper published in such county, then in that one, or if there be none, then in one printed nearest to the said county, at least once a week during the four weeks im- mediately preceding the meeting of the court at which such ac- count shall be presented, setting forth, in substance, that the ac- countants, naming them and the character in which they respec- tively act, have filed their accounts in the office of the said register, and that the same will be presented to the orphans' court for confirmation, at a certain time and place, mentioning the same ; and also by setting up conspicuously in his office, and in at least six other of the most public places in the county, at least four weeks before the time appointed for the presentation of such accounts as aforesaid, fairly written or printed copies of such advertisement. The actual expenses of such advertise- ment, according to the usual rates of advertising in such news- papers, and the setting up of such notices, shall be divided among all the accounts' presented at the same court, and the proper por- tion only shall be charged in any of the said accounts, and allowed to the register as the cost of such advertisement and notices. Note.— This is Section 30 of the Act of March 15, 1832, i Purd. 1125 (Section 37 of the Commissioners' Draft, except that the provision as to counties where no newspaper is published was added in the Act of 1832). It was derived with slight alterations from the Acts of April 4, 1797, Sec- tion 9, 3 Sm. L. 296, and April, i, 1823, Section i, P. L. 286. The insertion of the word "'secular'' in line 8 covers the provision of the Act of April IS, 1867, P. h. 86, I Purd. II2S, note (0). Section 29 of the Act of March ij, 1832, P. L. I43> i Purd. 1125, pro- viding that the register, "before he shall allow the accounts of any executor or administrator, shall carefully Examine the same, and require the pro- duction of the necessary vouchers, or other satisfactory evidence of the several items contained in it," is recommended for repeal, the practice prescribed having fallen into disuse. ' Notice to creditors by advertisement of account is futile if the account is prematufely filed. Hayden's Est., 28 Dist. 39. 4i6 FIDUCIARIES ACT— Suction 46(e), (/) 543. ORPHANS' COURT MAY REQUIRE ADDITION- AL NOTICE WHERE PARTIES IN INTEREST RESIDE OUT OF THE STATE, OR WHERE OTHER CIRCUMSTANCES RENDER FUR- THER NOTICE EXPEDIENT. (e) When any of the heirs, legatees, distributees or creditors of a decedent reside out of this state, or out of the United States, or from other circumstances it may be expedient that ad- ditional or further notice should be given of the settlement of the account of a fiduciary, or of the disposition of the assets or surplusage of the estate, it shall be in. the discretion of the orphans' court to require such further or additional notice to be given by such accountant, as they may think proper, to ap- pear in court, or before the auditor or auditors by them ap- pointed as the case may be, at such times as shall be fixed for the examination of such account, or for the distribution of the assets or the surplusage of the estate. Note. — This is Section 20 of the Act of March 29, 1832, i Purd. 1127 (Section 21 of the Commissioners' Draft), which was new in the Act of 1832. The only change now made is to substitute "fiduciary'' for "'executor, administrator, guardian or trustee," and to insert "auditor or" before "auditors." 544. ACCOUNTS NOT TO BE CONFIRMED UNLESS IT APPEARS THAT NOTICE HAS BEEN GIVEN. (/) No account of an executor, administrator or guardian shall be confirmed and allowed by the orphans' court, unless it shall appear, at the presentation of such account, that notice of such presentation has been given, conformably to the directions of this act. Note. — This is Section 15 of the Act of March 29, 1832, P. L. 193, i Purd. II2S (Section 16 of the Commissioners' Draft), which was new in the Act of 1832, although apparently in conformity with the then existing practice. The only changes now made are to omit the reference at the end of the section to "An act relating to registers and registers' courts," (the provisions of that act being now incorporated in the present act), and to omit, after "orphans' court" in the third line, the words "except in the cases herein especially provided for.'' FIDUCIARIES ACT— Section 46 (g) 417 545. WHERE TRUSTEES' ACCOUNTS SHALL BE FILED; EXCLUSIVE JURISDICTION OF OR- PHANS' COURT. Cg) All trustees who are subject to the jurisdiction of the orphans' court shall file their accounts in the court appointing them or, in the case of testamentary trustees, in the orphans' court of the county where the will is or shall be probated. The orphans' court shall have exclusive jurisdiction of the accounts of all trustees appointed by such court, and of all testamentary trustees, whether such trusts are vested in executors or ad- ministrators virtute officii or in trustees named in the will, saving, however, the jurisdiction of the courts of common pleas under existing laws in cases of trustees who have filed their accounts in such courts before the approval of this act, and cases of substituted testamentary trustees appointed by any court of common pleas before the approval of this act. Note'. — The first part of this clause is derived from Section i of the Act of May 3, 1909, P. L. 391, 6 Purd. 6565, altered so as to apply only to trustees who are within the scope of the present act, and to provide in what courts the accounts shall be filed. The remainder of the clause is new and is intended to take away the concurrent jurisdiction of courts of common pleas in cases of testamentary trusts in persons named in the will. This jurisdiction as to trusts nominatim was conferred by Section 15 of the Act of June 14, 1836, P. L. 632, 4 Purd. 4880, upon the court of common pleas of the county where the trustee resided at the commencement of the trust, and was held to be concurrent in Brown's Appeal, 12 Pa. 333, although as to trusts virtute officii the jurisdiction of the orphans' court is exclusive: Innes's Estate, 4 Whart. 179; Baird's Case, i W. & S. 288. In Anderson v. Henzey, 7 W. N. C. 39, it was remarked that the safest course was to invoke the aid of the orphans' court in all cases of testamentary trusts. The jurisdiction of the common pleas has been rarely exercised in recent years, and the late decision of the supreme court in Simpson's Estate, 253 Pa. 217, reversing 23 Dist. Rep. 750, brought the matter to the attention of the Commissioners, who are of opinion that there is now no good reason why the jurisdiction of the orphans' court should not be made exclusive as to both classes of testamentary trusts. "This part of the act was passed apparently to do away with the fine distinction that had been made by the courts in holding that if the trust was given to the executors as such, then the orphans' court has jurisdic- tion, but if given to individuals nominatim although they were later in the will named as executors, the jurisdiction was in the court of common pleas sitting in equity." Opinion of M'oodward, J., in dismissing a bill in equity for a decree involving the construction of a testamentary trust and distribution thereunder. Engle v. Engle, 21 Luz. 277. 27 4i8 FIDUCIARIES ACT-Section 46 (g), W The Fiduciaries Act of June 7, 1917, 46 (g), P. L. 447, abolished the concurrent jurisdiction formerly exercised by the court of common pleas and the orphans' court over the accounts of testamentary trustees appointed nominatim by the will, and vested such jurisdiction exclusively in the orphans' court of the county where the will is probated. Girard's Est., 48 Pa. C. C. 608, 29 Dist. 62. Under section 46 (g) of the Fiduciaries Act of June 7, 1917, P. L. 447, which provides that all trustees subject to the jurisdiction of the orphans' court shall file their accounts in that court, and (h) that they may file their accounts triennially from their appointment, any party in interest may compel the filing! of a triennial account. The jurisdiction of the court to compel the filing of an account by a trustee after the expiration of fourteen years is not ousted by the render- ing of semi-annual statements by, the trustee to the cestui que trust, nor by the advice of counsel for the trustee that, in view of the semi- annual accounts and the acceptance by the parties of checks for the amounts thereby shown to be due them, and tender of vouchers for all payments, no account should be required to be filed. Noble's Est., 27 Dist. 336, 35 Lane. 369, 66 P. L. J. 414, I9 Lack. 341. 546. TRIENNIAL ACCOUNTS OF TRUSTEES. (h) All trustees who are subject to the jurisdiction of the orphans' court may hereafter, triennially, from the date of their appointment, file their accounts in said court, which accounts shall be duly audited, and confirmed absolutely to that date. This clause shall apply to and permit all such trustees, who have been acting in such capacity for more than three years before the passage of this act, to file their accounts, which shall be audited and confirmed absolutely to the date of such filing, and, in like manner, to file their accounts triennially thereafter. Note. — This is also derived from Section i of the Act of May 3, 1909, P. L. 391, 6 Purd. 6565. The law prior to the Act of 1909 did not expressly permit trustees to file triennial accounts, and it is considered best to authorize in terms the practice that has been followed in many parts of the State. The Act of 1909 applies to "all trustees of estates and all committees of the estates of lunatics and habitual drunkards," and it has been thought that it was intended to include only trustees of the estates of lunatics and habitual drunkards. Under section 46 (g) of the Fiduciaries Act of June 7, 1917, P. L. 447, which provides that all trustees subject to the jurisdiction of the orphans' court shall file their accounts in that court, and (/i) that they may file their accounts triennially from their appointment, any party in interest may compel the filing of a triennial account. The jurisdiction of the court to compel the filing of an account by a trustee after the expiration of fourteen years is not ousted by the rendering FIDUCIARIES ACT— Sections 46 (/t), (i)-47 (.a) 419 of semi-annual statements by the trustee to the cestui que trust, nor by the advice of counsel for the trustee that, in view of the semi-annual accounts and the acceptance by the parties of checks for the amounts thereby shown to be due them, and tender of vouchers for all payments, no account should be required to be filed. Noble's Est., 27 Dist. 336, 35 Lane. 369, 66 P. L. J. 414, 19 Lack. 341. 547. NOTICE OF FILING TRUSTEES' ACCOUNTS. (i) Due notice of the filing of any account of a trustee in the orphans' court of any county shall be given by advertisement as prescribed by rule of said court, and in such other manner as the said court may, in each particular case, direct, to all per- sons interested in the estate; and absolute confirmation of such account shall not be entered unless all such persons interested are legally competent and qualified, either personally or by their guardians or committees, to appear in court and object to said account if they so desire. Note. — This is founded on the second proviso to Section i of the Act of May 3, 1909, P. L. 391. 6 Purd. 6565, broadened so as to apply to all accounts of trustees and not merely triennial accounts, and modified so as to provide for notice by advertisement and such other notice, if any, as the court may direct, instead of "due and actual notice." 548. AUDITS,— RULES OF COURT AS TO PUBLI- CATION OF NOTICE OF AUDITS. Section 47. (a) The judges of the orphans' courts of this commonwealth, respecti^'ely, shall have power, and are hereby authorized, to establish, in their discretion, such rules and regula- tions as they may deem proper for the publication of advertise- ments of notices of the auditing of accounts of fiduciaries and shall have supervision of and regulate the cost of such publication in all such cases, as well by special order in particular cases, as by general rules. Note. — This is Section i of the Act of March 18, 1875, P. L. 29, 3 Purd. 3370. In the first line, the word "separate" has been omitted. The section also provides for publication of notices of sales of real estate under pro- ceedings in said court, notices to parties in proceedings in partition, and all other cases within their jurisdiction, and for the establishment of a bill of costs for services of clerks. Those parts of the section are covered in other places. See Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. 420 FIDUCIARIES ACT— Section 47 (6), (O 549. AUDITS BY COURT IN COUNTIES HAVING SEP- ARATE ORPHANS' COURT. (b) In any county in which a separate orphans' court shall be established, all accounts filed in the office of the register of wills, or in the orphans' court by fiduciaries, shall be examined and audited by the court, without expense to the parties, except where all parties in interest in a pending proceeding shall nomi- nate an auditor, whom the court may, in its discretion, appoint. Note. — This is the proviso to Section 6 of the Act of May 19, 1874, P. L. 207, 3 Purd. 3369, which was passed in pursuance of Article V, Section 22 of the Constitution of 1874. The words "by fiduciaries" have been added in line 3, and "examined and" in line 4. 550. AUDITS BY COURT OR AUDITORS IN COUNT- IES NOT HAVING SEPARATE ORPHANS' COURT. (c) In any county in which a separate orphans' court shall not be established, all accounts filed in the office of the register of wills ori in the orphans' court by fiduciaries shall be examined by the court, and, if not excepted to, shall, after due consideration, be confirmed. If any person interested in the estate shall except to the account, or any of the parties shall desire to refer the ac- count to an auditor, the court shall decide whether the matter calls for such reference ; and if so, the court may appoint a suit- able person as auditor. The auditor so appointed shall be sworn or affirmed to perform his duties with fidelity, and shall have power to administer oaths or affirmations to parties and witnesses in the matter referred to him. Note. — This is Section i of the Act of April 14, 1835 P. L. 275, i Purd. 1 126, altered by confining it to counties having no separate orphans' courts, by providing for the appointment of one auditor only and by omitting the proviso, which reads: "Provided, That the provisions of this section shall not extend to the city and county of Philadelphia," and was extended to Montgomery County by the act of February 18, 1869, P. L. 183. The provision for appointment of auditors by the parties has also been omitted, and some changes have been made in the phraseology. The provisions of this clause supersede Section 16 of the Act of March 29, 1832, I Purd. 1 126, which is therefore recommended for repeal. The Commissioners recommend the repeal, so far as relates to the orphans' court, of the Act of April i, 1909, P. L,. 95, 6 Purd. 7296, as to choice of auditors, etc. ; by the parties (held unconstitutional in Hick's FIDUCIARIES ACT— Sections 47 (c)-48 421 Estate, 19 Dist. Rep. 410) ; and the Act of June 4, 1879, P. L. 84, i Purd. 390, as to compensation of auditors. See form 82. 551. REVIEW OF ACCOUNTS, ADJUDICATIONS AND AUDITORS' REPORT. Section 48. Within five years after the final decree, confirming the original or supplementary account of any fiduciary, which has been or may be hereafter passed, upon petition of review being presented by such fiduciary or his legal representatives, or by any person interested therein, alleging errors in such account, or in any adjudication of the orphans' court or any report of an auditor on such account, which errors shall be specifically set forth in said petition of review, said petition and errors being verified by oath or affirmation, the orphans' court shall grant a rehearing of so much of said account, adjudication, or auditor's report, as is alleged to be error in said petition of review, and give such relief as equity and justice may require, by reference to auditors, or otherwise, with Hke right of appeal to the proper appellate court as in other cases : Provided, That this act shall not extend to any cause when the balance found due shall have been actually paid and discharged by any fiduciary. Note. — This is Section i of the Act of October 13, 1840, P. L. (1841) i, I Purd. 1 128, changed by substituting the words "proper appellate" for ■'supreme,'' and by omitting ''as aforesaid" after "hereafter passed." The word "fiduciary" is substituted for "executor, administrator or guardian," making the act include testamentary trustees. A provision is inserted making the review include adjudications and auditors' reports. See forms 83, 84. Under Section 48 of the Act of June 7, 1917, P. L. SI4, the orphans' court may revise and correct a former adjudication where it appears that such adjudication contained a mistake by the parties and the rights of third parties have not intervened. The orphans' court is not bound by the rules of practice which prevail in a court of Chancery. "The rule governing apphcation for bills of review, laid down in our decisions since the passage of the Act of October 13, 1840, P. L. (1841) I, Sec. I, giving the court authority to grant a review, now controlled by the Act of June 7, 1917, P. L. S14, Sec. 48 has been re-asserted by Judge Gest in Nixon's Estate, 239 Pa. 270, 273, which was affirmed on his opinion wherein he said : 'It is well settled that a petition for a review of an account settled and confirmed in the orphans' court must show either an error of law apparent on the face of the record or else new matter 422 FIDUCIARIES ACT— Section 48 which has arisen since the decree, or such review may be allowed ex gratia upon the subsequent discovery of new evidences to the facts upon which the decree was grounded which could not have been procured by the use of due diligence.' " Schaeffer, P. J., in Beard's Est, 34 York 190. Section 48 of the Fiduciaries Act of June 7, 1917, P. L. 477, 514, relating to petitions of review, is an advance on Section i of the Act of October 13, 1840, (P. L. 1841, page i), treating of the same subject, in that the former requires a review to be granted if error is made in the adjudication. Where an error appears in an adjudication, and the balance found due has not been actually paid and discharged, a rehearing is a matter of right, unless, at the audit, the question at issue was raised, contested and decided adversely to petitioner. The orphans' court has inherent power to and should grant a review, aside from the provisions of either act, where justice and equity require it and no one will suffer by reason thereof. Troutman's Est. 270 Pa. 310. The Act of October 13, 1840, P. L. (1841) page i, as amplified by the 48th Sec. of the Fiduciaries Act of 1917, P. L. 514 gives the orphans' court jurisdiction to review and revise an account within five years after confirmation upon petition of review being presented; and under this jurisdiction and the general equity powers of the orphans' court a matter being duly before the court an order may be made for the re- statement of the fiduciary's account, where the circumstances and equity require it, although no petition for review has been filed. Bender's Est., 33 York 125. Decedent died leaving a will, bequeathing certain specific legacies to a church, also the residue of her estate to said church. One of the witnesses to the will was a member of the congregation. The account of the execu- tor was duly filed, audited and confirmed, and distribution made to the testamentary trustee. About one year after the filing of the account by the testamentary trustee, and after distributioil had been made under the terms of the will, the petitioner and next of kin filed his petition asking that the confirmation of the adjudication be vacated and for restitution of awards. "It was well settled under the law that. in order to open an adjudication after distribution has| been made, unless there is an apparent error of law on the record or fraud be shown to have entered into the decree or induced it, that no review of the adjudication will be allowed. In this case there is no error of law appearing on the face of the record, no new matter has arisen since the adjudication, and no new evidence which was not in the control of the petitioner, or could by due diligence have been procured and offered before the adjudication no fraud being shown, and the fund having been paid and record satisfied, the petition must be dismissed." Riser's Est., 35 Montg. 169. The decedent died possessed of no shares of the common stock of the A Company, which, on March 16, 1914, was adjudged a bankrupt and petitioner became trustee. On Oct. 9, 1914, the executors filed their account, which was confirmed absolutely Oct. 24th, and, then, transferred the fund to two of their number as trustees ; the third, who was a non- resident, was discharged Nov. loth. In August, 1919, the trustee in FIDUCIARIES ACT— Sections 48-49 (a) 423 bankruptcy filed this petition, alleging the above facts and, inter alia, that shortly after he became trustee he applied to the United States District Court for the levy of an assessment on all holders of unpaid common stock of the A Company to raise funds to meet its corporate indebtedness, and that, Nov. 7, 1918, the Court levied an assessment of 45.2 per cent, amounting to $4,972, against the decedent. The petitioner, therefore, prayed that the adjudication of the executors' account be opened, the confirmation set aside, and a readjudication made thereon, awarding the trustee said sum, with interest from Nov. 7, 1918. On demurrer : Held, that as the corporation knew at the time of the audit that the stock held by the decedent had not been paid for and that an assessment would be necessary to pay creditors, the facts alleged in the petition did not con- stitute new matter, and, hence, the petitioner was not entitled to present his claim, and the petition should be dismissed. Graham's Est., 48 Pa. C. C. 371, 28 Dist. 1023. 552. DISTRIBUTION OF ESTATES,— NOT TO BE COMPELLED WITHIN SIX MONTHS; AFTER SIX MONTHS MAY BE ORDERED ON PETI- TION OF CREDITOR OR ANY PERSON IN- TERESTED. Section 49. (a) No executor or administrator shall be com- pelled to make distribution of the estate of his testator or in- testate until six months be fully expired from the granting of the letters testamentary or of administration in the estate. After the expiration of said j>eriod, distribution may be ordered by the orphans' court having jurisdiction of the accounts of the executor or administrator, on petition of any person having an interest in the assets to be distributed, or on petition of any creditor of the decedent. Note. — This is a modification of Section 38 of the Act of February 24. 1834, I Furd. 1 130, which related to administrators only. It was copied from Section 15 of the Act of April 19, 1794, 3 Sm. L. I43, except that under the Act of 1794 the year ran from the death of the intestate. The period has now been reduced to six months. Section 47 of the Act of 1834, I Purd. 1131, which is set forth below, after clause (rf), applied to executors. The Commissioners recommend the repeal of the first part of Section 19 of the Act of March 29, 1832, P. L. 194, i Purd. 1127, providing for the appointment of auditors in insolvent estates "to settle and adjust tha rates and proportions of the assets to and among the respective creditors, according to the order established by law," and the last part of) Section i of the Act of April 13, 1840, P. L. 319, i Purd. 1127, providing for the appointment of auditors to make distribution on the application of any legatee, heir or other person interested. See forms 28, 30, 54, 55. 424 FIDUCIARIES ACT-Sbction 49 (0), (b) One who has a prima facie claim against the estate of a decedent is entitled to require an account by personal representatives. The orphans' court will not deny a creditor of a decedent the right to proceed to have his claim adjudicated in that court and relegate him to his common law action. "Section 49a of this Act provides that after the expiration of six months distribution may be ordered by the orphans' court 'On petition of any person having an interest in the assets to be distributed, or on petition of any creditor of the decedent.' "The question presented is whether the petitioner (a creditor) has sufficiently shown himself to be a creditor so as to be entitled to compel the filing of an account. The rights of creditors seem to be the same under the Fiduciaries Act as they were under the prior existing law." Laverty's Est., 24 Dauphin 107, 30 Dist. 507, 50 Pa. C. C. 259. See also Cooper's Est, 29 Dist. 230, 67 P. L. J. 17, 36 Lane. 266, 20 Lack. 46, 32 York 144. 553- DISTRIBUTION WITHOUT AUDIT OF AC- COUNT AT RISK OF EXECUTORS OR ADMIN- ISTRATORS; DISTRIBUTION UNDER ORDER OF COURT TO PROTECT EXECUTORS OR AD- MINISTRATORS AND TO BE WITHOUT RE- FUNDING BONDS. (b) Executors or administrators may make distribution, and pay or deliver legacies, without the audit of their accounts, upon such security as may be satisfactory to them, neverthelesss at their own risk, but without liability to any creditors of the decedent who shall not have given written notice to the executor or administrator within six months after the granting of letters testamentary or of administration, provided that such executor or administrator has complied with the provisions of Section 10 of this Act."^ Where distribution of a decedent's estate is awarded by the orphans' court, after audit and confirmation of any ac- count of the executors or administrators, such decree of distribu- tion shall protect the executors or administrators from personal liability with respect to the property so distributed. In making distribution under such a decree, the executors or administrators shall not be entitled to demand refunding bonds from the distrib- utees, except in the cases specially provided for by this act, and in other cases in which the court shall direct the giving of re- funding bonds. iSee 397 supra. FIDUCIARIES ACT— Section 49 (&) 425 Note. — This is a new clause. The first sentence is founded upon Section 58 of the Act of 1834, I Purd. 1132, which was derived from Section 16 of the Act of 1794. It is here altered by substituting "the audit of their accounts" for "application as aforesaid," and by adding the words be- ginning "but without liability." The remainder of the section as drafted is declaratory of the law as laid down in the decisions: Ferguson v. Yard, 164 Pa. 586; Lejee's Estate, 5 D. R. 311 ; Piper's Estate, 208 Pa. 636. Section 57 of the Act of 1834, i Purd. 1131, provides: "Executors, or administrators making distribution, or paying or delivering any legacies as aforesaid, shall not be liable for the assets so paid or distributed in respect to any claim or demand upon the decedent not previously made known to them, where security shall be taken, as is hereinbefore provided." This, eliminating the requirement of security, is covered by the new clause. Section 41 of the Act of 1834, i Purd. 1131, which required refunding bonds to be given by distributees in all cases, has become obsolete and its repeal is recommended. It was derived in part from Section 15 of the Act of 1794. 1 See 391 supra. Section 49 (b) of the Fiduciaries Act of June 7, 191 7, P. L. 447, makes it necessary for creditors of a decedent to give an executor or administrator written notice of their claims "within six months after the granting of letters" where notice of death has been given by publication. The court, in declining to audit, raised the following question, which, however, it did not decide: "Attention is called to the! first half of Section 49 (6), which makes it necessary for creditors to give to the fiduciary written notice of their claims "within six months after the granting of letters," where the fiduciary has duly published notice thereof, and relieves the executor or administrator from all liability to the creditor if this notice is not given. Under this section these queries arise : (a) Has not the legislature given to the fiduciary the right to distribute to those creditors only who have given written notice of their claims, and to any other distributees without audit? (6) How may a creditor -who has failed to give the statutory notice of his claim, compel an accounting by virtue of the right given to him under Sec. 46 (a) and Sec. 49 (a), if the fiduciary has distributed all of the assets to those who have complied with the law? Has a creditor who has failed tO' give this notice, which, under the other sections of the Act regulating an orderly administration, followed by advertisement of the accounting, audit, confirmation, and equitable distribution, is not required, any longer any standing as a creditor, if distribution has been made, and is the fiduciary not entitled to a decree of confirmation, because under Sec. 46 (a) it is the duty of every executor to account? The exemption from liability given by this section to the fiduciary is new in the law of Pennsylvania, and referred to only because it is necessary to expressly distinguish between the questions which may arise in determining the rights of parties thereunder, and those under the other sections of the Act which are cited and relied upon as the basis of the decree to be entered in 426 FIDUCIARIES ACT—Section 49 (6), (c), (d) this case." Trimbu, J-, in Cooper's Est,, 29 Dist. 230, 67 P. L. J. 17, 36 Lane. 266, 20 Lack. 46, 32 York 144. Under the Fiduciaries Act) of June 7, 1917, P. L. 447, the account of an executor or administrator should not be filed until the expiration of six months from the date of the first insertion of the advertisement of the grant of letters. The act contemplates an immediate advertisement, and if the account be filed within six months of the first insertion of the advertisement, the auditing judge may vifithhold confirmation. While the act introduced no innovation in the law touching the ad- vertisement of the grant of letters, it shortened the period allowed for administration from one; year to six months, and, hence, it becomes neces- sary for the court to see that creditors have had due notice of the grant of letters. Creditors! have the right to assume that the account need not be looked for until six months have expired from the first insertion of the ad- vertisement. Cotter's Estate, 27 Dist. 1023, 67 P. L. J. 19, 47 Pa. C. C. 76. 554. DISTRIBUTION OF ESTATE NOT EXCEEDING THREE HUNDRED DOLLARS. (c) When the personal estate of a decedent does not exceed the value of three hundred dollars, the executor or administrator may, after the expiration of one year after the date of granting the letters testamentary op of administration, present his petition to the proper orphans' court, with an annexed account showing the administration and legal distribution of the estate, the state- ments in the petition and the account to be verified by the affidavit of such executor or administrator. Thereupon the court may, upon satisfactory proof or acknowledgment of notice to all parties known to be interested in said estate that said petition and account have been presented, order, at the end of thirty days from the date of filing the petition and account, the discharge of the executor or administrator and his sureties from future liability, without the expense of proceedings as in a formal account, unless during said period of thirty days exceptions be filed to the account. Note. — This is Section i of the Act of May 6, 1915, P. L. 265, S Purd. 5895, changed by inserting "personal," in the first line, by adding "'and his sureties from future liability," and by altering the language at the end, so as to make it clear that discharge may be made at the end of the thirty days, unless meanwhile exceptions are filed. 555. CREDITOR FAILING TO PRESENT CLAIM AT AUDIT NOT ENTITLED TO SHARE IN DIS- TRIBUTION. (d) No creditor of a decedent who shall neglect or refuse to present his claim at the audit of the account of the executor or FIDUCIARIES ACT— Section 49 (rf) 427 administrator, held not less than six months after the grant of letters testamentary or of administration of which public notice has been given as provided in Section 10 of this act,^ or at an audit held after actual notice to such creditor of the filing of such account, as provided in Section 46, clause (c) of this act^ shall be entitled to receive any share of the assets distributed in pur- suance of such audit, whether the estate of the decedent be solvent or insolvent. NoTe. — This is founded on the proviso to Section 19 of the Act of March 29, 1832, P. L. 194, i Purd. 1127, which has been redrafted to correspond to the changes made in previous sections. The Commissioners recommend the repeal of the following sections of the Act of February 24, 1834, as obsolete and unnecessary : — Section 39, i Purd. 1130, providing that when distribution shall be required by any person interested, the executor or administrator shall present to the court "a statement of all demands against the estate which have been made known to him, and after deducting the amount thereof from the assets in his hands, together with such further sum as may be necessary to pay the interest and costs of suit of such as may be in dispute, and of such as he may deem it his duty to dispute, make dis- tribution of the residue under the direction" of the court. Section 40, i Purd. 1131, providing that after six months from a dis- tribution made as aforesaid, like proceedings may be had for distribution of further assets, and so from time to time, until the whole estate shall be distributed. Section 47, i Purd. 1131, providing that after one year from the granting of administration, executors shall, on the requisition of any legatee or any other person interested, pay and deliver, under the direction of the court, all legacies due and payable, or a proportionate part thereof, first deducting all demands against the estate and such sums as may. be necessary to pay the interest and costs of such as are disputable or in dispute, and shall also distribute any residue distributable under the intestate laws. ^See 391 supra. ^See 541 supra. Where a legatee presented claim for moneys alleged to be due from executor of an estate, before an auditor appointed to distribute the balance on the account of the administratrix of such executor and no amount was given and no testimony was presented in support of the claim and the auditor did not allow the claim and no exceptions were taken to his report it was held the matter might be treated as res judicata. Where more than twenty-one years have elapsed from the time moneys due legatees are payable, a legal presumption of payment arises, which must be met and overcome by evidence to the contrary, which is direct, positive and conclusive. Feigley's Est., 35 York 17. See also Cooper's Est., 29 Dist. 230, 67 P. 1-. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. 428 FIDUCIARIES ACT— Section 49 («) i, 2 556. DISTRIBUTION IN KIND,— COURT MAY DI- RECT DISTRIBUTION OF UNCONVERTED SECURITIES. (e) I. Whenever it shall appear at the audit and distribution of an estate in the orphans' court, that the balance, after payment of debts, includes stocks, bonds, or other securities, which, for reasons satisfactory to said court, have not been converted by the accountants, it shall be lawful for said court to direct distribu- tion of such assets in kind to and among those lawfully entitled thereto, including fiduciaries. NoXfi.— This is Section i of the Act of June 10, 191 1, P. L. 870, 5 Purd. 5895, with the addition of the words "including fiduciaries." "Where the residue of the estate consists of stocks and various trust funds are created by the will, it is a proper case for the executors to present a petition under section 49 (e) of the Fiduciaries Act, 1917, P. L. 447, authorizing them to distribute the stocks in kind to the trustees. The date of the confirmation of the auditor's report fixes the value of the stock which is toi be transferred. Where the court is asked to make a distribution in kind under the above act, a schedule should be presented giving the court full information as to the number of shares of stock to be distributed and the market value of the same, and the distribution which the trustees in their judg- ment think should be made. That schedule can then be either adopted by the court or modified. Skeer's Est., 30 Dist. 542, 17 North, 302, 49 Pa. C. C. 535. Under the Fiduciaries Act of June 7, 1917, it is within the discretion of the orphans' court to distribute unconverted assets in kind. Where the record did not show any effort had been made to sell un- converted assets in the hands of an accountant in a decedent's estate, but did show that the beneficiaries or distributees under the will had agreed to accept in kind, and it appeared that the assets could not be equally distributed, the Court ordered a public sale and a return of the proceeds. Shaw's Est., 65 P. L. J. 830. See also Evans' Est., 30 Dist. 253, 50 Pa. C. C. 241. 557. DUTY OF FIDUCIARY TO WHOM SUCH DIS- TRIBUTION IS MADE; APPLICATION TO COURT FOR AUTHORITY TO SELL. 2. Where stocks, bonds, or other securities have been dis- tributed in kind, as above provided, to any fiduciary, it shall be the duty of such fiduciary to use reasonable diligence in con- verting such securities as shall not be investments now or here- after authorized by law ; and if such fiduciary be doubtful as to the propriety of making sale of such securities, he may apply to the orphans' court having jurisdiction of his accounts, by petition. FIDUCIARIES ACT— Sections 49 (e) 2, (/)-so (o) 429 for authority and direction to sell the same ; whereupon, after due notice to all parties interested, the said court shall make such order in the premises as to it may appear proper. Note. — This is Section 2 of the Act of 191 1, with the substitution of the word "fiduciary" for "guardian, trustee, or other fiduciary," and some slight verbal changes. This section is intended to cover the case where securities distributed in kind to a fiduciary are not legal investments but their immediate sale would result in substantial losses and the fiduciary might, except for the pro- visions of this section, be compelled to make the sale forthwith on his own responsibility. Section 3 of the Act of 191 1 validated previous distributions and its reenactment is unnecessary. 558. DISTRIBUTION BY EMPLOYER OF WAGES DUE DECEDENT NOT EXCEEDING $75. (/) It shall be lawful for any employer in this commonwealth at any time not less than thirty days after the death of his employee to pay all wages due to such deceased employee to the wife, children, father or mother, sister or brother (preference being given in the order named) of the deceased employee, with- out requiring letters testamentary or of administration to be issued upon the estate of said deceased employee, where such wages due do not exceed seventy-five dollars^ in amount. If such deceased employee shall not leave a wife or any of said relatives surviving him, then it shall be lawful for the employer in like manner to pay such wages to the creditors of the deced- ent, as follows : undertaker, physician, boarding-house keeper, and nurse, each his or her pro rata share, upon affidavit of fact furnished. The payment of such wages as aforesaid shall be a full discharge and release to the employer from any further claim for such wages. Note. — This is founded on the Act of May 23, 1907, P. L. 201, 7 Purd. 7729. ^Increased to one hundred and fifty dollars by Act of March 26, 1919 (P. L. 22). 559. REFUNDING BONDS,— FIDUCIARY WHO HAS GIVEN BOND MAY REQUIRE BONDS FROM PERSONS TO WHOM HE MAKES PAYMENT. Section 50. (a) Where any fiduciary has been required, or hereafter shall be required, upon the receipt of money, to give a refunding bond, it shall be lawful for such fiduciary, upon paying 430 FIDUCIARIES ACT— SecrioN 50 (a), (6) over such money to creditors, or to parties beneficially interested, to require, under the direction of the orphans' court having jurisdiction of his accounts, a bond, refunding receipt or other obligation from each person receiving such money, to indemnify such fiduciary to the amount such person may receive. Note.— This is Section i of the Act of April 13, 1859, P. L,- 604, i Purd. 1 132, modified by substituting "fiduciary"' for "executor, administrator or guardian," and "the parties beneficially interested" for "heirs, legatees or ward." The Act of June 10, 1881, P. L. 106, i Purd, 1132, note (>«) amended the Act of 1859 by adding a clause authorizing a ward who had reached lawful age and was a married woman to give her own refunding bond. This is now omitted as unnecessary since the married women's acts. For the same reason, Section 4 of the Act of April 11, 1856, P. L. 31S, 3 Purd. 2454, authorizing a married woman entitled to a legacy or distributive share to give a refunding bond and to execute all other instruments and perform all other acts on payment to her of moneys so distributed, is recommended for repeal. 560. LIMITATION OF ACTIONS ON REFUNDING BONDS. (b) In all cases where refunding bonds shall be given upon the distribution of the estate of any decedent, no action or suit thereon shall be brought after the expiration of six years from the date of such bond : Provided, That where the creditors or other persons entitled to the protection of said bonds, shall be within the age of twenty-one years, non compos mentis, impris- oned, or from or without the United States of America, or where a creditor whose debt shall not mature within such period, shall file within the said period in the office of the clerk of the orphans' court where said distribution shall have been made, a copy of particular statement of any bond, covenant, debt or demand upon which his claim arises, then and in any such cases an action may be brought by the creditor at any time not exceeding two years from the coming of age, or removal of such disability of the creditor or other person entitled to the protection of said bonds, or the maturing of the debt or demand aforesaid. NoTe. — This is Section i of the Act of June 30, 1885, P. L. 203, i Purd. 1 1 32. The only changes are to omit after "distribution" in line 2, the words, "or partition," to substitute "the orphans' court where said dis- tribution shall have been made" for "said court," no court having been previously referred to, and to insert "or other persons entitled to the FIDUCIARIES ACT— Sections 50 (b)-Si (o) 431 protection of said bonds," and to make the period of limitation six years instead of five. Section 2, which gave five years from the passage of the Act to sue on bonds theretofore given, need not be reenacted. 561. TRANSCRIPTS OF BALANCES DUE BY FIDU- CIARIES, FILING TRANSCRIPTS IN COM- MON PLEAS AND EFFECT THEREOF; EX- ECUTIONS. SECTION 51. (a) 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 or extracts from the record showing the amount appearing to be due from, or in the hands of any fiduciary, on the settlement of his accounts in the orphans' court of the same or any other county, or by virtue of a decree of said court, which transcripts or extracts, so filed, shall constitute judgments, which shall be liens against the real estate of such fiduciary from the time of such entry until payment, distribution or satisfaction. Execu- tions may be issued thereon out of said court of common pleas against the real estate only of such fiduciary, by any person or persons 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 afore- said, unless revived by scire facias in the manner by law directed in the cases of judgments in 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 prothono- tary of the common pleas, on such decree of the appellate 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 eflfect 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 prothonotary 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 Section 29 of the Act of March 29, 1832, i Purd. 1128 (Section 30 of the Commissioners' Draft), as amended by Section i of the Act of April 27, 1909, P. L. 202, 5 Purd. 5894. 432 FIDUCIARIES ACT— Section si (a) The section is now changed by omitting "of the respective counties" after "common pleas" in line 2, by substituting "the"' for "any" before ■'orphans' court" in line 7, and by inserting "of the same or any other county" after "orphans' court," the purpose of these changes being to permit the filing of transcripts in other counties, thus supplying, so far as it relates to the orphans' court, the Act of June 5, 1885, P. L. 78, 2 Purd. 1426. The section is further altered by substituting "fiduciary" for "executor, administrator, guardian, or other accountant," by inserting the words "or by virtue of a decree of said court," "which shall be liens" and "the real estate of," by striking out the provisions as to execution, attachment, and actions of debt and scire facias, and inserting "and executions may be issued thereon out of said court of common pleas against the real estate only of such fiduciary." The Commissioners have considered it proper to recommend these changes so that the remedy against real estate shall be exclusively in the common pleas and executions against personalty shall issue from the orphans' court only. Corresponding changes are recom- mended in the Orphans' Court Act, and a similar section has been there drafted to permit the filing in the common pleas of transcripts of orders of the orphans' court for the payment of money by others than fiduciaries (see 148 supra.) Section 29 of the Act of 1832 was derived, as to the first part, from Section 2 of the Act of April i, 1823, P. L. 286. The provisos were new in the Act of 1832. The Act of 1909 amended Section 29 of the Act of 1832 so as to provide that the transcripts should constitute "judgments'" instead of "liens,'' and so as to provide for execution and attachment execution thereon. The Commissioners recommend the repeal of the Act of 1909, except as to the validating provisions, etc., added by the Act of 1909, as follows: "And all executions, attachment execution, and other process heretofore issued out of any of the courts of common pleas of this commonwealth, upon any such certified transcripts or extracts from any of the orphans' courts of this commonwealth, if otherwise valid, and if otherwise duly issued and served as provided by law, are hereby declared to be, and shall be deemed and held to be lawful and valid, and no defendant, garnishee, or other person shall be permitted to make or take any objection, exception, plea, or defense to the same; nor shall any objection, exception, plea, or defense heretofore made to the same be deemed lawful, valid, or effectual, because or on the ground that there was at the time of issuing any such process, as aforesaid, no sufficient or valid judgment upon which such process might be issued ; and the provisions hereof shall be held applicable to all actions, suits, and proceedings heretofore commenced or instituted, as well as to all such actions, suits, and proceedings as shall be hereafter commenced or instituted ; Provided, however, That nothing herein contained shall apply to or affect any actions', suits, or proceed- ings heretofore commenced or instituted, and upon which final judg- ment or decree of the supreme or superior court has been entered, or as to which any court of common pleas has entered its judgment or decree, and the time for an appeal therefrom has elapsed." FIDUCIARIES ACT— Sections si (b)-52 (a) 433 562. SATISFACTION AND DISCHARGE OF JUDG- MENTS ON TRANSCRIPTS. (b) When the fiduciary 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 fiduciary, according to the final settlement of the said account, has been fully paid and discharged, may make an order for his relief from such recorded 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 Section 30 of tlie Act of March 29, 1832, i Purd. 1128 (Section 31 of the Commissioners' Draft), as amended by Section 2 of the Act of April 27, 1909, P. L. 202, 5 Purd. 5894. Section 30 was new in the Act of 1832. The cliange made by the amendment of 1909 was merely to substitute "judgment" for "lien." The term "fiduciary" is now substituted for the words "executor, administrator, guardian, or other accountant," and "operate" for "inure and be received." The words "to the extent of what they have received" are omitted after "thereof" in line 4. The provision for a penalty of fifty dollars and damages for neglect or refusal to satisfy has been omitted, the remedy in the orphans' court being considered sufficient. 563. DISCHARGE OF FIDUCIARIES AND SURETIES, —CONDITIONS OF DISCHARGE. Section 52. (a) Any fiduciary whose accounts shall have been settled and confirmed and who shall have paid and transferred the remainder of the property in his hands to his successor in the administration or trust, if any, or to the persons legally entitled thereto, may, on petition, be discharged by the orphans' court having jurisdiction of his accounts from the duties of his ap- pointment ; and his sureties may be discharged from future liability with respect thereto: Provided, That in every case of the petition of a guardian for his discharge during the minority of his ward, it shall be the duty of the court to appoint some suitable person to appear and act for the ward in respect thereto. Note. — This is a combination of Section 21 of the Act of March 29, 1832, I Purd. 1138, and Section 11 of the same act, i Purd. 1087, relating to discharge of guardians. The phraseology is altered and the section 28 434 FIDUCIARIES ACT-Sbctions 52 (a), (6)-S3 (a) is extended to testamentary trustees. The provision as to discharge of sureties has been added. Section 21 of the Act of 1832 was derived from the first paragraph of Section 3 of the Act of April 4, 1797, 3 Sm. L. 296. Section 11 was founded on Section 4 of the Act of March 30, 1821, P. L. 153. See forms 86-90. 564. DISCHARGE OF ONE OR MORE JOINT FIDU- CIARIES. (b) Whenever one or more of several joint fiduciaries shall die or be discharged or removed by the proper orphans' court, the said court, upon the application of any party interested, shall have power to discharge from future liability said discharged or deceased fiduciary and his surety or sureties, and require new or additional security of the remaining fiduciary or fiduciaries, with a like result in case of failure to comply as is provided by this act when new or additional security is, for any cause, required by such court : Provided, That such discharge shall not affect liabilities existing at the time of the discharge of such fiduciary or fiduciaries, surety or sureties. Note. — This is Section l of the Act of February 2, 1853, P. L. 31, i Purd. 1 138, changed by extending it to all fiduciaries instead of admin- istrators only. Various alterations have been made in the phraseology, especially by substituting "security" for "surety." 565. REMOVAL OF FIDUCIARIES,— GROUNDS FOR REMOVAL. Se;cTion 53. (a) Any orphans' court having jurisdiction of the accounts of executors, administrators, guardians or trustees shall have exclusive power to remove such executor or administrator and vacate the letters testamentary or of administration or to remove such guardian or trustee, as the circumstances of the case may require, in any of the following cases : Note. — In this section, there have been collected all the various causes for removal by the court of executors, administrators, guardians and trustees. In line 3, the word "exclusive" has been inserted, in order to take away the seldom-exercised concurrent jurisdiction of the court of common pleas to remove testamentary trustees. This involves the repeal of Section 12 of the Act of March 11, 1836, P. L. 79, 4 Purd. 4887, and of Sections 16 to 21 inclusive of the Act of June 14, 1836, P. L,. 633, 4 Purd. 4887-8, the latter, however, only so far as they relate to testamentary trustees. The FIDUCIARIES ACT— SecTioN S3 (o) i 435 proviso (see Sec. 574 infra), is added to save the jurisdiction of the court of common pleas in pending cases. See Miller's Est., 264 Pa. 310, 107 Atl. 684; Buch's Est., 35 Lane. 41; Kelly's Est, 28 Dist. 87. That an executor is ignorant, irresponsible and intemperate, is not a reason for his removal where the testator was well acquainted with his habits. One may be uneducated, financially irresponsible and a tippler and yet be competent to administer an estate. Buch's Est., 35 Lane. 41. 566. WASTE OR MISMANAGEMENT; PROBABLE INSOLVENCY; FAILURE TO FILE INVEN- TORY OR ACCOUNT. I. When such fiduciary is wasting or mismanaging the estate or property under his charge, or is like to prove insolvent, or has neglected or refused to exhibit true and perfect inventories, or render full and just accounts of such estate or property, come to his hands or knowledge; Paragraph i is derived from Section 22 of the Act of March 29, 1832, I Purd. 1 139, with the substitution of the word "mismanaging" for "mis- placing;'' Section i of the Act of April 22, 1846, P. L. 483, i Purd. 1142; Section i of the Act of April 7, 1859, P. L. 406, I Purd. 1143, which extended the Act of 832 to cases of trustees; and Section i of the Act of May I, 1861, P. L. 680, I Purd. 1141. It cannot be said that the court abuses its discretion in removing an executor for mismanagement of the estate where he admits that he had failed to pay the debts of the decedent and the taxes levied against the estate, and that he had misappropriated a portion of the rentals, made assets for payment of debts, and fails to make any satisfactory explanation of his actions. "It is provided by the S3d section, clause A, (i) of the Fiduciaries Act, that the orphans' court having jurisdiction of the accounts of executors shall have power to remove such executor, "when such fiduciary is wasting or mismanaging the estate in his charge.' or 'where for any reason the interests of the estate or property are likely to be jeopardized by the continuance of said fiduciary. "The executor who pays out the moneys of an estate for purposes not authorized by law is wasting and mismanaging the estate as much as one who converts the money of the estate to his own use. It is the bounden duty of the court to hold a fiduciary to a strict account of his man- agement." From opinion of lower court affirmed in Miller's Est, 264 Pa. 310, 107 Atl. 684. See also Buch's Est., 35 Lane. 41 ; Kelly's Est, 28 Dist. 87. 436 FIDUCIARIES ACT— Section S3 (») i, 2, 3, 4, S, 6 567. LUNACY, DRUNKENNESS, OR WEAK-MINDED- NESS. 2. When such fiduciary has been duly declared a lunatic, habitual drunkard or weak-minded person ; Paragraph 2 is derived from Section 26 of the Act of 1832, i Purd. 1 140, with the addition of the words "or weak-minded person." 568. SICKNESS OR PHYSICAL OR MENTAL IN- CAPACITY. 3. When such fiduciary has become incompetent to discharge the duties of his trust, by reason of sickness or physical or mental incapacity, and it shall appear to the satisfaction of the court that such incompetency is likely to continue, to the injury of the estate under his control ; Paragraph 3 is derived from Section 2 of the Act of May i, 1861, P. L. 680, I Purd. 1 142, with some changes in phraseology, the omission of the word ''sole,'' and the substitution of "other cause" for "other visitation." See Buch's Est, 35 Lane. 41. 569. REMOVAL FROM THE STATE. 4. When such fiduciary has removed from this state, or has ceased to have any known place of residence therein, during the period of one year or more ; Paragraph 4 is derived from Section 27 of the Act of 1832, i Purd. 1140. Kelly's Est., 28 Dist. 87. 570. MISMANAGEMENT OR MISCONDUCT BY GUARDIAN. 5. When any guardian, whether testamentary or otherwise, mismanages the minor's estate or misconducts himself in respect to the maintenance, education or moral interests of the minor; Paragraph 5 is derived from Section 12 of the Act of 1832, i Purd. 1087. See Cook's Est., 48 Pa. C. C. 599; (S. C. sub nom. Kerr's Petition) 29 Dist. 909. 571. FAILURE TO PAY OVER PRINCIPAL OR IN- COME OR TO COMPLY WITH ANY ORDER OF COURT. 6. When such fiduciary fails or neglects to pay over the prin- cipal or income of the estate, according to his duty under the FIDUCIARIES ACT— Section 53 (o) 6, 7, 8, 9 437 trust, or fails or neglects to comply with any order or direction of the court made in relation to said trust ; Paragraph 6 is derived from Section i of the Act of April 7, 1859, P. L. 406, I Purd. 1 143. See Kelly's Est., 28 Dist. 87. 572. NEGLECT OR ABUSE OF TRUST BY TRUSTEE FOR RELIGIOUS, EDUCATIONAL OR CHARITABLE PURPOSES. 7. When any trustee of property held in trust under the pro- visions of any last will and testament for religious, educational or charitable purposes, or for use as a burying-ground, neglects or abuses such trust; Paragraph 7 is derived from Section i of the Act of February 17, 1818, P. L. 104, 4 Purd. 4886. 573. PROBABLE JEOPARDY OF INTERESTS OF ES- TATE. 8. When, for any reason, the interests of the estate or prop- erty are likely to be jeopardized by the continuance of any such fiduciary. Paragraph 8 is derived from Section i of the Act of May i, 1861, P. L. 680, I Purd. 1 141. See Miller's Est., 264 Pa. 310, 107 Atl. 684; Kelly's Est, 28 Dist. 87. 574. WHEN ALL OR A MAJORITY OF THE CESTUIS QUE TRUST, HAVING LIFE ESTATES, DE- SIRE REMOVAL ON ANY SUBSTANTIAL GROUND. 9. When all the cestuis que trust, or a majority of them, having the life estate under any trust, shall desire the removal of the trustee or trustees upon any substantial ground not here- inbefore enumerated, and the court, upon petition filed by them or any of them, shall be satisfied that such substantial ground for removal exists, in which case, the court may remove said trustee or trustees and appoint another or others as chosen by said parties. Provided, however, That nothing herein contained shall be construed to affect the jurisdiction of any court of common 438 FIDUCIARIES ACT— Seci'ion 53 (a) g^ (6), (c) pleas in proceedings pending at the date of tlie approval of this act. Paragraph 9 is derived from Section i of the Act of April 9, 1868, P. L. 78s, 4 Purd. 4893, which applies only to Philadelphia, modified so as to conform to the decision in Neafie's Estate, 199 Pa. 307. This combination has been made in order to avoid unnecessary repeti- tions. The following clauses deal with the procedure common to all the cases above enumerated, and the next section covers the cases in which the court has power to require additional security. 575. PETITION, CITATIONS, ORDERS AND DE- CREES. (b) Whenever it shall be made to appear to the orphans' court having jurisdiction of the accounts of any fiduciary, on the oath or affirmation of any person interested, that there exists any one or more of the grounds for removal of such fiduciary enumer- ated in the last preceding clause of this section, such court may issue a citation to such fiduciary, requiring him to appear on a day certain, to answer the charge so preferred, and may make all such necessary rules and orders as the said court may deem proper for bringing the matter complained of to a hearing. If, on such hearing, the said court shall be satisfied of the truth of the matters charged, it may remove such executor or adminis- trator and vacate the letters testamentary or of administration or remove such guardian or trustee, as aforesaid, and direct the issuance of new letters testamentary or of administration, or appoint a new guardian or trustee, and make such orders for the security of the trust property and for the delivery of such prop- erty and the books, accounts, papers and moneys belonging or relating to the trust to the successor of such fiduciary as the circumstances of the case may require. Note. — This is derived from Section i of the Act of May i, 1861, P. L. 680, I Purd. 1141; Section 26 of the Act of 1832, i Purd. 1140; Section 12 of the Act of 1832, i Purd. 1087; and Section i of the Act of April 7, 1859, P. L. 406, I Purd. 1143. 576. SUMMARY REMOVAL IN CASES OF EMER- GENCY. (c) Any orphans' court having jurisdiction of the accounts of any fiduciary shall have power in a case of emergency, when the exigencies of the case shall appear to the satisfaction of the court to require it, in order that the rights of creditors and parties FIDUCIARIES ACT— Section 53 (c), (rf), (e) 439 interested in the assets of the estate shall be protected, summarily to remove such executor or administrator and vacate the letters testamentary or of administration or summarily to remove such guardian or trustee, on any of the grounds enumerated in clause (a) of this section, and to direct the issuance of new letters or to appoint a successor to such guardian or trustee, on the ex parte petition of any creditor or party interested in the estate, and further to make such orders for the security of the trust prop- erty and for the delivery of such property and the books, accounts, papers and moneys belonging or relating to the trust to the successor of such fiduciary as the circumstances of the case may require : Provided, That it shall be lawful for any such fiduciary, so removed, to apply by petition to said court to have such decree of removal vacated and to be reinstated in his office. Note. — This clause is new and intended to supply an hiatus in the present law, which apparently does not fully provide for immediate relief where the fiduciary, for example, absconds and cannot be reached by citation or attachment. 577. DECREE REMOVING ONE FIDUCIARY NOT TO AFFECT CO-FIDUCIARIES. (d) No decree removing one of several co-fiduciaries shall suspend the power or prejudice the acts of any of the other fiduciaries. Note. — This is derived from the proviso to Section 27 of the Act of 1832, I Purd. 1 140. 578. ENFORCEMENT OF ORDERS AND DECREES; SUITS BY SUCCEEDING FIDUCIARY. (e) If such superseded fiduciary shall neglect or refuse to comply with any order or decree of the court made under the provisions of this section, the court shall have power to enforce obedience thereto by attachment, with or without sequestration, execution or otherwise, as to such court shall seem necessary and proper for the due protection of the rights and interests of any and all parties interested ; or the succeeding fiduciary may proceed at law against the superseded fiduciary and his sureties, if any there be, or against any other person who may be possessed of any goods or chattels belonging to the estate of the decedent or minor, as the case may be, or be indebted to him; or the 440 FIDUCIARIES ACT— Sections S3 («)-S4 (a) i remedies by execution and suit at law may be pursued at the same time, if the case so require, until the end be fully attained. NoTe. — This is a combination of Section 24 of the Act of 1832, i Purd. 1 139, and the last part of Section i of the Act of April 7, 1859, P- L- 4o6, I Purd. 1 143. 579. REQUIREMENT OF SECURITY BY EXECUTOR OR ADDITIONAL SECURITY BY OTHER FIDU- CIARY; PROCEEDINGS BY SURETIES TO RE- QUIRE COUNTER SECURITY, FOR DISCHARGE OF SURETY OR FOR REMOVAL OF FIDU- CIARY,— PROCEEDINGS TO REQUIRE ADDI- TIONAL SECURITY,— DECREE ; ATTACHMENT. Section 54. (a) i. In any of the cases enumerated in Section S3, clause (a) of this act, the court may, upon the return of the citation, require such security of an executor, or such other and further security of an administrator, guardian or trustee, as they may think reasonable, conditioned for the performance of the trust, which security shall be taken in the name of the common- wealth of Pennsylvania and filed in the said court, and shall be deemed and considered in trust for the benefit of all persons in- terested in such estate: Provided, That if it shall be made to appear to the said court that such fiduciary is about to remove from this commonwealth, or that the property under his charge may be wasted or materially injured before he can be reached by the ordinary process of the court, it shall be lawful for such court to issue a writ of attachment, under which the same pro- ceedings may take place as in other cases of attachment on mesne process in the orphans' court ; and on the return of such attachment, the court may proceed as on the return to the citation. Note. — This is derived from Section 22 of the Act of March 29, 1832, I Purd. 1 139. It is extended to all cases covered by clause (o) of Section 53 of the present draft, instead of merely the cases covered by paragraph i of that clause. Section 25 of that act, i Purd. 1140, which was derived from the Act of March 27, 1713, i Sm. L. 81, provides that security may be required where "an executrix, having minors of her own, or being concerned for others, is married or like to be espoused to another husband, without secur- ing the minors' portions or real estates." Section i of the Act of April 25, 1850, P. L. 569, I Purd. 1 141, amended the above section so as to "include all cases therein specified, whether there are minors concerned in the estate or not, and whether the executrix is sole executrix or otherwise." FIDUCIARIES ACT— Section 54(0) i, 2, (6) 441 This amendment leaves the section applicable to any case where an executrix "is married or like to be espoused to another husband." Since the married women's acts, there seems to be no occasion for this provision. The original section was apparently intended to cover the case where a widow, named as executrix, remarried or was about to remarry, and to protect the interests of minor children of the testator against the property rights which would be acquired by the second husband. The repeal of Section 25 of the Act of 1832 and the amendment of 1850 is therefore recommended. See Buch's Est, 35 Lane. 41. 580. REMOVAL ON FAILURE TO COMPLY WITH DECREE. 2. If such fiduciary shall neglect or refuse to give such secu- rity, or such further security, so ordered, then the said court may remove such executor or administrator and vacate such letters testamentary or of administration, or remove such guardian or trustee, and direct the issuance of new letters or appoint a new guardian or trustee as aforesaid. Note. — This is derived from Section 23 of the Act of 1832, i Purd. 1139. "May remove" is substituted for "shall remove." 581. PROCEEDING BY SURETY TO COMPEL GIVING OF COUNTER SECURITY. (b) Application may be made to the orphans' court, in any of the cases mentioned in clause (a) of Section 53 of this act, by any surety on the bond of such fiduciary, and upon the petition .of such surety duly verified by oath or affirmation, the like pro- ceedings may be had, for the purpose of compelling such fidu- ciary to give security, and thereupon the court may order such fiduciary to give such counter-securities as they shall judge necessary to indemnify the surety against loss by reason of his suretyship. If such fiduciary shall refuse or fail to give such security, within such reasonable time as the court shall order, it shall be lawful for the court to direct such fiduciary to pay or deliver over forthwith to such surety, or to some other person for him, all of the property, moneys, books, accounts and papers whatsoever for which such surety may be accountable or which may belong or relate to the trust: Provided, That such surety shall first give to the satisfaction of the court, sufficient security, 442 FIDUCIARIES ACT— Section S4 (&), (c) faithfully to preserve and account therefor, and deliver and dis- pose of the same according to the order of the court. Note. — This is Section 28 of the Act of 1832, i Purd. 1140, with some changes in phraseology, the substitution of "fiduciary" for "executor, administrator or guardian," and the extension of the provisions to all cases covered by clause (a) of Section 53 (see 565 supra), instead of merely the cases covered by paragraph i of that clause. 582. PROCEEDING BY SURETY FOR DISCHARGE. (c) It shall be lawful for the orphans' court having jurisdiction of the accounts of any fiduciary, on the petition of any surety of such fiduciary, or of the personal representatives of a deceased surety, to issue a citation requiring such fiduciary, at the return thereof, not less than thirty days' notice to be given of the presentation of such petition, to file an account of his manage- ment of the trust or estate. The said citation, upon such peti- tion, and affidavit filed of the facts connected with .the execution and position of the trust funds or estate, shall further direct the said fiduciary to show cause why the petitioner or his estate should not be discharged from all future liability, if the court, after due notice to all parties interested, deem it reasonable and proper. If the court, on due consideration, shall discharge such surety or his estate, the fiduciary shall thereupon give a new bond, with surety or sureties, as the court shall order, and on failure or refusal so to do, within such time as is ordered by the court, shall be removed from the trust, and some other person or cor- poration appointed. When a new bond is required under the provisions of this clause the surety in the prior bond or his estate shall be liable for all breaches of the conditions thereof com- mitted before the new bond is approved according to law. Note. — This embodies the provisions of Sections i, 2 and 3 of the Act of June I, 1907, P. h- 384, 7 Purd. 7701-2. Section 4 of that act is a general repealer. The word "fiduciary" has been substituted for "trustee, committee, guardian, assignee, receiver, executor, administrator, or other fiduciary;" the provisions as to representatives of a deceased surety have been in- serted ; the reference to the court of common pleas has been omitted ; the jurisdiction is given to the orphans' court having jurisdiction of the accounts, instead of the court of the county of the residence of the fiduciary; "during any regular term of the court" has been omitted after "return thereof," and the phraseology has been modified. The Act of 1907 seems to repeal by implication the Act of May 10, 1881, P. L. 14, 4 Purd. 4914, which applied only to trusts created "to FIDUCIARIES ACT— Suctions 54 (c)-SS 443 continue for, or during, a life or lives, or marriage," and provided that the petition shall not be presented until more than three years after the appointment of the trustee. The Act of 1881 amended Section i of the Act of March 27, 1865, P. L. 44, and reenacted Sections 2 and 3 of that act. Section i of the Act of April 17, 1866, P. L. m, 4 Purd. 491S, provided that the petition authorized by the Act of 1865 might, "in the event of the death of such sureties, or any one of them, be presented by the personal representative of such surety or sureties, with like effect in all respects, as if the petition had been presented by the deceased surety or sureties in his or her lifetime." This provision was omitted from the Acts of 1881 and 1907, but its equivalent is now included. 583. REQUIREMENT OF STATEMENT OF INVEST- MENTS ON TEN DAYS' NOTICE; ACCOUNT- ING REMOVAL. Section 55. In case any surety or sureties, or the personal representatives of any deceased surety or sureties upon the bond of any fiduciary, or any person interested in the trust, shall apply to the fiduciary for a complete and detailed statement of the nature and character of the securities in which the trust funds are invested, and the said fiduciary shall fail for the space of ten days to furnish such statement, or if, such statement having been furnished, it shall appear to the said surety or sureties, or the representatives of said surety or sureties, or other person inter- ested in said trust, that the funds in the hands of the said fiduciary are badly invested so as to be likely to result in a loss to the trust, the said surety or sureties, or the representatives of said surety or sureties, or other person interested in the trust, may present a petition to the orphans' court having jurisdiction of said trust, praying that an order be made requiring the said fiduciary to file an account of the administration of his trust, which account shall include a complete and detailed statement of the manner and securities in which said trust funds are invested, within twenty days after service of said order, unless the time be enlarged by the court. Thereupon the said court shall make such order, and if, upon the audit of such account, it shall appear to the court that the said fiduciary has been guilty of any act of fraud or mis- management or has invested the trust funds in securities not authorized by law or by the will of the testator, or has made investments which are likely to cause a loss to the trust, said court may remove the said fiduciary and order payment of the assets to his successor or into court. 444 FIDUCIARIES ACT— Sections 55-56 (o) Note.— This is Section i of the Act of June 3, 1893, P. L. 273, 4 Purd. 4915, changed by inserting "personal" and "deceased" in line 2, by sub- stituting "fiduciary" for "trustee, committee, guardian, assignee, receiver, administrator, executor or other person having trust funds in his hands," by requiring the filing and audit of an account instead of the filing of a statement in the first instance, and by eliminating the provisions as to investments outside of the state. The Act of 1893 should be repealed only so far as it relates to fiduciaries who are within the scope of the present act. Section 2, 4 Purd. 4916, provides : "This act shall apply to all trusts, whether the same be within the jurisdiction of the orphans' court, of common pleas, or of a court of equity." Section 3 is a general repealer. 584. APPOINTMENT OF TRUSTEES TO FILL VA- CANCIES; PARTIAL VACANCY IN TESTA- MENTARY TRUST. Si;cTiON 56. (a) Whenever, by the provisions of any last will and testament admitted to probate, a trust has been or shall be declared of and concerning any real or personal estate, to be executed by a trustee or trustees named in said will or by the executor or executors of said will, whether by virtue of their office or otherwise, and any of the said executors or trustees shall die, renounce, resign, be dismissed from or refuse to act in the said trust, leaving the other executor or executors, trustee or trustees, continuing therein, it shall be lawful for the orphans' court having jurisdiction of the accounts of such executors or trustees, on the application of any party in interest, and with the consent of such continuing executor or executors, trustee or trustees, with notice to all persons interested, so far as such notice can reasonably be given, to appoint a trustee or trustees in the place of the executor or executors, trustee or trustees, so dying, renouncing, resigning, dismissed or refusing to act, and to re- quire the person or persons so appointed to enter sufficient security for the faithful performance of the trust. The trustee or trustees so appointed shall have the same power and interest over and in the property in trust, as the executor or executors, trustee or trustees, in whose stead he or they shall be so appointed as aforesaid. It shall also be lawful for the said court to appoint a successor or successors to such trustee or trustees from time to time, whenever from death, resignation or otherwise, the same shall be necessary or expedient. Note. — This is derived from Section 2 of the Act of April 10, 1849, P. h. 597, I Purd. 1142 (which was confined to Philadelphia, but was extended throughout the state by the Act of April 23, 1864, P. L. 55o, i FIDUCIARIES ACT— Section s6 (o), (&) 445 Purd. 1143) and Section i of the Act of April 22, 1846, P. L,. 483, I Purd. 1 142. See forms 17, 91, 92. "The auditing judge is of the opinion that the power to carry out the charitable purpose is not confined alone to the first named executor. It is true that in conferring this power the testator speaks of 'my executor,' using the singular number, but this the testator does because he appoints one person sole executor, and when he later appoints succeeding executors in the event of the original executor's death, etc., his apparent purpose is that, in any event, there shall be some one in the office of executor who, by virtue of their office, shall have the duty of carrying out this provision of the will as well as the duty of performing the other services required of executors. See, generally, Kershaw's Estate, 27 Dist. R. 659; Murphy's Estate, 184 Pa. 310; Sheets's Estate, 215 Pa. 164; Fiduciaries Act of June 7, 1917, Sections 28 and 56 P. L. 447-" Adjudication of Thompson, J., in Barnwell's Est., 49 Pa. C. C. 188, 39 Dist. 317, aff'd. in 269 Pa. 443. 585. ENTIRE VACANCY IN TESTAMENTARY TRUST. (b) Whenever, in any of the cases enumerated in clause (a) of this section, all of the said executors or trustees shall die, renounce, resign, be dismissed from or refuse to act in the said trust, it shall be lawful for the orphans' court having jurisdiction of the accounts of such executors or trustees, on the application of any party interested, and with notice to all persons interested, so far as such notice can reasonably be given, to appoint a trustee or trustees in place of the executor or executors, trustee or trustees, so dying, renouncing, resigning, dismissed or refusing to act, and to require the person or persons so appointed to enter sufficient security for the faithful performance of the trust. The trustee or trustees so appointed shall have the same power and interest over and in the property in trust, as the executor or executors, trustee or trustees in whose stead he or they shall be so appointed as aforesaid. It shall also be lawful for the said court to appoint a successor or successors to such trustee or trustees from time to time, whenever from death, resignation or otherwise, the same shall be necessary or expedient. Note. — This clause is intended to empower the court to make appoint- ments in cases where there is an entire vacancy in the office of trustee. It follows the provisions of clause (a) so far as applicable. A discretionary power vested in testamentary trustees virtute officii survives to a substituted trustee appointed by the orphans' court under the Act of April 22, 1846, Section i, P. ly. 483. 446 FIDUCIARIES ACT-^Sbction 56 (&), (c), (d) Testatrix by her will bequeathed her residue estate to her executors and trustees in trust to pay the income to B. for life, with limitations over. In a proviso, following intervening clauses she directed them to pay him $S,ooo on his attaining the age of forty, if in their discretion they deemed it well to do so, having regard to his character and ability. In a subsequent clause she appointed K. and F. executors and trustees. K. was discharged, F. died, and a trust company was appointed substituted trustee : Held, that the power vested in the trustees virtute officii and could be properly exercised by the substituted trustee. The provisions of Section 56 (b) of the Fiduciaries Act (which re- pealed the Act of April 22, 1846, Section i (P. L,. 483), do not apply to the question of the survival in substituted trustees of discretionary powers vested in the original trustee. Kershaw's Est., 27 Dist. 659. 586. APPOINTMENT OF TRUSTEE WHERE EXECU- TOR DECLINES TO ACT, OR IS DIS- CHARGED; APPOINTMENT OF SEPARATE TRUSTEES FOR SEVERAL PARTIES. (c) In all cases of trusts created by will, and annexed to the office of executor, such executor may decline to accept the trust, or be discharged therefrom, without affecting his office of execu- tor, and the orphans' court of the proper county shall have power to fill the vacancy by appointment; and if a trust fund or estate is committed to an executor or other trustee, in which several cestuis que trust have or are entitled to enjoy a separate interest, and a vacancy should in any manner occur in the office of the trustee thereof, the said court may appoint one or more trustees of such estate or fund, for each of the said cestuis que trust, on his or her application ; and the said trustee shall give security as in other cases. Note.— This is Section i of the Act of March (April) 13, 1859, P. L. 611, I Purd. 1 143. The only change made is to substitute "in other cases" for "is provided by existing laws," at the end of the clause. 587. JURISDICTION OF ORPHANS' COURT TO BE EXCLUSIVE. (d) The jurisdiction of proceedings under the provisions of this section shall be exclusively in the proper orphans' court: Provided, however, That nothing herein contained shall be con- strued to affect the jurisdiction of any court of common pleas in proceedings pending at the date of the approval of this act. NoTB. — This clause is introduced to take away the concurrent jurisdiction of the common pleas to appoint substituted testamentary trustees. This FIDUCIARIES ACT— Sections 56 (d)-57 (a) 447 involves the repeal of Sections I and 2 of the Act of April 14, 1828, P. L. 453, 4 Purd. 4894, Sections 18, and 23 to 26 of the Act of June 14, 1836, P. t. 634, 4 Purd. 4895-4900, and Section 5 of the Act of May 3, 1855, P. L,. 416, 4 Purd. 4900, so far only as they relate to testamentary trustees. Sections i and 2 of the Act of March 22, 1825, P. L,. 107, 4 Purd. 4894, conferring jurisdiction upon the supreme court, though doubtless obsolete since the Constitution of 1874, still appear in the Digests, and should be repealed by the present act so far as they relate to testamentary trustees. See Lewis' Est, 30 Dist. 391. 588. NON-RESIDENT FIDUCIARIES; CORPORA- TIONS OF OTHER STATES AS FIDUCIARIES POWERS; APPOINTMENT OF NON-RESI- DENTS AND FOREIGN CORPORATIONS AS FIDUCIARIES. SECTION 57. (a) Any fiduciary appointed by any orphans' court of this commonwealth, or by virtue of any last v^fill and testament, probated within this commonwealth, may, if resident within this commonwealth, lawfully execute the duties of his trust, whether or not he is a resident of the county in which the trust was created, or in which the decedent had his domicile. The court having jurisdiction may, in its discretion, appoint or refuse to appoint as trustee or guardian any person who is not a resident of this commonwealth, or a corporation of any state of the United States of America, other than Pennsyl- vania, duly authorized by its charter or by law to act as such fiduciary, and shall require in all cases of a non-resident of this commonwealth, or of such corporation, a bond, with sufficient sureties, conditioned for the faithful discharge of the duties of the trust; but the court may, in its discretion, permit such cor- poration to give its own bond without sureties. Every appoint- ment by will of a trustee or guardian who is a non-resident of this commonwealth shall be subject to the approval of such court and the court may require the entry of such bond. No such appointment shall be made of, nor shall letters testamentary be issued to, a corporation of another state, unless such corporation shall first file with the clerk of said court or with the register of wills, as the case may be, an appointment in writing of an attorney-in-fact, resident within the respective county, upon whom service of process and notices may be made. NoTfi. — This is Section i of the Act of May 17, 1871, P. L. 269, 4 Purd. 4923, confined to fiduciaries who are within the scope of the new act, altered in phraseology and extended to testamentary guardians and to 448 FIDUCIARIES ACT— Sections 57 (a), (fc)-s8 (o) corporations of other states. The clause as now worded is believed to express the meaning of the ambiguous language of the Act of 1871. See Plummer's Estate, 24 Dist. Rep. 542. The last sentence is new. 589. APPOINTMENT OF RESIDENT CO-TRUSTEES. (b) When the trustee or trustees of any estate shall reside out of this commonwealth, and any part of the trust estate, property or fund is situated within this state, the proper orphans' court may, on the petition of any of the parties interested in said trust property, appoint one or more trustees resident within this com- monwealth, to act in conjunction with said non-resident trustee or trustees in the management and disposition of said trust; and the said court shall have the same power over said trustee or trustees so appointed that it has in other cases of trust. Note.— This is Section 2 of the Act of March 17, 1838, P. L. 81, 4 Purd. 4900, with slight changes of phraseology. That section is recommended for repeal so far as it relates to trustees concerned with decedent's estates. 590. FOREIGN FIDUCIARIES,— EXECUTORS, ADMIN- ISTRATORS AND TRUSTEE. Section 58. (a) Except as hereinafter provided, no letters testamentary or of administration, or otherwise, which may be granted out of this commonwealth, purporting to authorize any person to intermeddle with the estate of a decedent, shall confer upon such person any of the powers and authorities possessed by an executor or administrator under letters granted within this state ; nor, except as hereinafter provided, shall any appointment of a trustee of a decedent's estate or any part thereof by will probated out of this commonwealth, or by any court out of this commonwealth, confer upon such person any of the powers and authorities possessed by a trustee under a will probated within this state or appointed by an orphans' court of this state. Note. — This is founded on part of Section 6 of the Act of March 15, 1832, I Purd. 1074. The provision was new in that act, the Commissioners remarking: "The practice of recognizing foreign letters of administration is believed to be almost peculiar to this state. It originated in the Act of 1705. We propose an alteration of the law in this respect. In the case of M'Cullough V. Young (i Binney 63; and see i Dall. 457), the court admit that much inconvenience may arise from this provision of our law, and suggest that it may be a fit subject for legislative interposition. We have introduced the last of these provisions in consequence of this sug- gestion and with entire conviction of its propriety.'' FIDUCIARIES ACT— Section 58 (o), (&), (c) 449 The changes now made are to insert the words "except as hereinafter provided," so as to except the cases covered by the subsequent clauses of this section, to transpose the clause beginning "'which may be granted," so that it stands after "otherwise" instead of after "decedent," and to add the provision as to trustees. A trustee appointed in another state to execute a trust created by the will of a decedent, domiciled in that state, there being no power or direction to sell contained in the will, will not be authorized by an orphans' court of Pennsylvania to sell real estate situated in this state. "Clause (6) contains a similar provision as to foreign guardians de- rived from the Act of March 29, 1832, Section 7, P. L. 190, clause (c) condensed and revised the statutory rights of foreign fiduciaries as to personal estate; clauses (/ and g) further enlarged their powers in cer- tain cases, while clause (rf) substantially reenacted the Act of June 23, 1897, P. L. 200, I Purd. 1103, applying to cases where the will conferred a power of sale, and, in view of Hoysradt v. Gas Co., making it expressly applicable to the case of a successor trustee. Except, however, as these subsequent clauses of Section 58 expressly conferred powers upon foreign fiduciaries, the prohibition in clause (a) is explicit; it enacts in terms that no appointment of a trustee by will probated out of the Common- wealth or by any court out of this Commonwealth shall confer upon such person any of the powers and authorities possessed by a trustee under a will probated within this State or appointed by an orphans' court in this State." Gest, J., in Jones' Est., 47 Pa. C. C. 463; 28 Dist. 282. 591. FOREIGN GUARDIANS. (b) Except as hereinafter provided, no appointment of a guardian, made or granted by any authority out of this state, shall authorize the person so appointed to interfere with the estate, or control the person of a minor in this state : Provided, That such foreign guardian may, at the discretion of the orphans' court having jurisdiction, be appointed by said court, on giving security for the due performance of his trust. Note. — This is Section 7 of the Act of March 29, 1832, i Purd. 1085, which was new in that act, changed by inserting the first four words and by modifying the wording of the proviso. See Jones' Est., 47 Pa. C. C. 436; 28 Dist. 282. 592. POWERS OF FOREIGN FIDUCIARIES IN GEN- ERAL; AUTHENTIFICATION OF COPIES OF WILLS, OR OTHER AUTHORITY. (c) It shall be lawful for any executor, administrator, trustee, or other person duly authorized to take charge or possession of 29 450 FIDUCIARIES ACT— Section 58 (c) the personal estate of any decedent, or for any guardian or other legal representative of the estate of a minor, acting under letters testamentary or of administration, or other authority, granted by or under the laws of any other state, territory or possession of the United States of America, or of any foreign country, to assign and transfer, and to receive the dividends or interest of, any public debt or loan of the Commonwealth of Pennsylvania, or of any county, city, borough, township or school district thereof, or any stocks or bonds of any corporation incorporated under the laws of this commonwealth, standing in the name of, or belonging to, the decedent, minor or cestui que trust, or any mortgage debt or indenture of mortgage held by, or belonging to, the decedent, minor or cestui que trust, upon real estate situate within this commonwealth, and to enter or cause to be entered satisfaction upon the record of such indenture of mortgage. Be- fore any such act shall be done by any such executor, adminis- trator, trustee, guardian or other person, there shall be filed in the office of the register of wills for the county in which is located the office for the transfer of such loans, stocks or bonds, or, in the case of a mortgage, of the county where the mortgaged real estate may be situated, when such person is acting under letters or other authority granted by or under the laws of any other state, territory or possession of the United States of Amer- ica, a copy of the will, probate and letters issued thereon, or of such other grant of authority, duly authenticated in accordance with the Acts of Congress ; or, when such person is acting under letters or other authority granted by or under the laws of any foreign country, a copy of such will, probate and letters issued thereon, or of such other grant of authority, certified by the official custodian of such documents or records, under his official seal if any, to be a true and correct copy of the originals thereof in his possession or under his control, together with the certificate of the presiding judge or the officer having jurisdiction or authority over such custodian that the attestation is in due form and by the proper officer : Provided, That before any such executor, admin- istrator or trustee shall assign or transfer any such loans, stocks, bonds or mortgages, or receive any interest or dividends thereon, or enter satisfaction of any such mortgage, he shall also file, with said register of wills, an affidavit stating that the said decedent is not indebted to any person in this commonwealth, and that the FIDUCIARIES ACT— Section 58 (c), (d) 451 proposed transfer, assignment, receipt or entry of satisfaction is not made for the purpose of removing any of the assets of said decedent beyond the reach of any of the creditors in this common- wealth; and any such transfer, assignment, receipt or entry of satisfaction without first mailing and filing such affidavit, shall be void. Note.— This is Section i of the Act of April 8, 1872, P. L. 44, i Purd. 1 103, as amended by the Act of June 13, 1911, P. L. 890, 5 Purd. 5890, further amended so as to include the provisions of Section 3 of the Act of April 14, 183s, P. L. 275, i Purd. iioi ; Section 5 of the Act of March 12, 1842, P. L. 67, I Purd. iioi; Section 3 of the Act of June 16, 1836, P. ly. 683, I Purd. 1102; Section 8 of the Act of May 15, 1850, P. L. 767, I Purd. 1 102; and Section i of the Act of May 15, 1874, P. L. 195, i Purd. 1102. The sections of the Acts of 1835 and 1842, above referred to, were held to be confined to executors and administrators appointed in one of the United States : Alfonso's Executors' Appeal, "jo Pa. 347. The Acts of 1872 and 1874 included foreign countries, but covered only the transfer of loans of the state and the city of Philadelphia, and stock and registered loans of Pennsylvania corporations, and not other municipal loans. Some changes in phraseology have also been made in the Act of 1872 for the purposes of clearness and brevity. See forms 48, 49, 53. See Jones' Est., 47 Pa. C. C. 436; 28 Dist. 282. 593. POWERS OF FOREIGN EXECUTORS AND TRUSTEES AS TO SALE OF REAL ESTATE. (rf) Whenever a citizen of the United States, non-resident in the Commonwealth of Pennsylvania, shall have died owning real estate in this commonwealth, and by his last will and testament shall have empowered his executor or trustee to sell and convey his real estate, it shall be lawful for said executor or trustee, or his duly appointed successor, although not a resident in this commonwealth, from and after the expiration of one year from the death of such decedent, to execute any power of sale con- tained in said last will and testament, and to sell and convey to the purchaser the whole or any part of such real estate located in this commonwealth : Provided, That before executing the power of sale, a copy of the last will, probate and letters testa- mentary, and of the decree appointing such successor, if any there be, duly authenticated as provided in clause (c) of this section, shall be filed in the office of the register of wills of the county where the land is situated : Provided jurther, That noth- 452 FIDUCIARIES act-Section 58 (d), (e), (/) ing in this clause shall change or modify the acts of assembly relating to collateral inheritances. Note.— This is Section 1 of the Act of June 23, 1897, P. L. 200, i Purd. 1 103, except that the period is reduced from fii;e years to one year to correspond to the reduction of the period of lien of decedents' debts; in the first proviso, "duly authenticated copy" is used instead of "certified copy" ; in the second proviso "'clause'' is substituted for "act" ; and the provisions as to the "duly appointed successor" have been inserted: See Hoysradt v. Gas. Co., 194 Pa. 251. The Act of May 20, 1891, P. L. 98, Section i, i Purd. 1103, provided that conveyances theretofore made under the authority of wills proved as prescribed by the laws of the state of which the testator was a citizen should, upon the recording of a duly certified copy of the will in the office of the register of the county where the lands lay, have the same force and effect as if the will had been duly proved in Pennsylvania. The Act of 1891 was substantially the same as the Acts of May 28, 1885, P. L. 24, Section i, and May 22, 1878, P. L. 98, Section i. The validating Act of April 2, 1915, P. ly. 43, 6 Purd. 7288, is in similar terms. These validating acts are not suggested for repeal. See Jones' Est, 47 Pa. C. C. 463; 28 Dist. 282. 594. REVIVAL OF JUDGMENTS BY FOREIGN EXEC- UTORS AND ADMINISTRATORS. (e) It shall be lawful for foreign executors or administrators to cause to be issued, in their names as such executors or admin- istrators, writs of scire facias within this commonwealth, on all judgments in favor of their decedents, the lien of which judg- ments is about expiring : Provided, That before any further pro- ceedings are had, letters testamentary or of administration must be granted within this commonwealth, as provided by law. Note. — This is Section i of the Act of June 27, 1883, P. I,. 163, i Purd. iioi, with slight verbal changes. 595. AWARDS TO FOREIGN EXECUTORS AND AD- MINISTRATORS. (/) It shall be lawful for the orphans' court having jurisdiction of the accounts of any fiduciary to award personal property to the foreign executor or administrator of a deceased non-resident creditor, legatee or distributee, when it shall appear to the satis- faction of the court, by affidavit or other evidence, that there are no creditors of such non-resident decedent within this common- wealth, and when it shall further appear by certificate of the register of wills, surrogate or court of the proper jurisdiction, duly authenticated as required by the Acts of Congress, if the FIDUCIARIES ACT— Section 58 (/), (g) i 453 domicile of Such non-resident creditor, legatee or distributee was in another state, territory or possession of the United States of America, or by the proper diplomatic or consular officer appointed by the United States of America, under his official seal, if such domicile was in a foreign country, that the person claiming to receive such award is authorized under the laws of such state, territory, possession or country to receive the property of his decedent : Provided, That the benefits of this clause shall not extend to any case in which it shall appear that the rights of any resident of this commonwealth may be adversely affected by such transfer of property to such foreign executor or administrator. Note. — This is a new clause, copied, witli a few changes in language, and with the insertion of the words "to the satisfaction of the court," and "or other evidence," in lines 5 and 6, from House Bill No. 248 of the session of 1915, which, the Commissioners are advised, was vetoed. The Commissioners are of opinion that this clause will eliminate a hardship that frequently arises in the settlement of estates where a dis- tributee domiciled in another state or foreign country is entitled to an award. As the law now stands, the foreign executor or administrator cannot be recognized by the court in awarding distribution ; and the appointment of an ancillary executor or administrator is required to be made, although the distributee may never have resided or done business in this commonwealth, and there is not the slightest probability of the existence of any debts due to our citizens. This involves delay and ex- pense, the entry of security in the office of the register of wills, with the further costs of filing and adjudication of an account before the bond can be released. The Commissioners believe that the rights of residents of our own commonwealth are sufficiently safeguarded in this clause, and therefore, in spite of the veto above mentioned, respectfully recom- mend its adoption. See Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282 ; Moss' Est., 29 Dist. 235. In the distribution of assets of foreign intestates, the orphans' court of Allegheny County will require that the domicile of the decedent be conclusively established before a decree will be made. If the distributees are domiciled abroad, their rights to share in the estate must be clear as well as how said shares are to be disbursed either by consular agencies or otherwise. Foreign Intestates, 68 P. L. J. i. 596. POWERS OF FOREIGN GUARDIANS, TRUSTEES, COMMITTEES AND OTHER FIDUCIARIES, AS TO REMOVAL OF PROPERTY,— PROOF OF APPOINTMENT AND QUALIFICATION OF FIDUCIARY. (g) I. In all cases where any guardian and his ward, or trustee and his cestui que trust, or committee and his lunatic, or any other 454 FIDUCIARIES ACT— Suction 58 (0) i fiduciary and the person in whose interest he is acting, shall both be non-residents of this state, and such ward or cestui que trust shall be entitled to money, personal property of any description or the proceeds of any sale of real estate in this state, under the control or jurisdiction of any orphans' court, and such guardian, trustee or other fiduciary shall produce satisfactory proof to said court, by certificates, that he has given bond and security, with special reference to the money or personal property to be re- moved, in the state or country in which he and his ward or cestui que trust reside, in double the amount of such money or of the value of such property, as guardian, trustee or other fiduciary, and it shall be found that a removal of the property will not con- flict with the terms or limitations attending the right by which the ward or cestui que trust owns the same, and that no right of any resident of this commonwealth will be prejudiced by such removal, then any such guardian, trustee or other fiduciary may demand or sue for and remove any such money or property to the place of residence of himself and his ward or cestui que trust. If such guardian, trustee or other fiduciary and his ward or cestui que trust reside in another state, territory or possession of the United States of America, such certificate shall be authenti- cated as required by the Acts of Congress, and, if they reside in a foreign country, shall be made by the court having jurisdiction of such guardian, trustee or other fiduciary, and authenticated by and under the official seal of a diplomatic or consular officer appointed by the United States of America and residing in such country : Provided, That if it shall appear by such certificate that, under the laws of such state, territory, possession or foreign country, such guardian, trustee or other fiduciary, is not required to enter security, but that the interests of his ward or cestui que trust are safeguarded by a deposit of the money or property in the court having proper jurisdiction, then it shall be lawful for the orphans' court of the proper county in this state to cause suitable orders to be made authorizing the delivering and passing over of such money or property to such court without the entry of security. Note.— This is Section i of the Act of May 13, 1889, P. L. 19°, i Purd. 1085, which amended Section i of the Act of April 21, 1856, P. L. 495, now further amended by adding the proviso, which seems to belong in this section rather than in the next one, by including committees of lunatics and other fiduciaries, and by making other changes as in House Bill No. FIDUCIARIES ACT— Section 58 (s) i, 2 455 247 of the session of 1915, which bill the commissioners are advised was vetoed. Those changes were to extend the act to residents of foreign countries, thus supplying an hiatus in the law, and to provide that the bond must have been given "with special reference to the property to be removed." In the present draft, the condition has also been added that "no rights of any resident of this commonwealth will be prejudiced by such re- moval." The Act of 1889, as amended, seems to cover all matters included in Section 2 of the Act of April 13, 1840, P. L. 319, i Purd. 1088, and Section I of the Act of May 25, 1871, P. L. 279, i Purd. 1086, which are therefore recommended for repeal. See Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282; Foreign Intestate, 68 P. L. J. I. 597. DISCHARGE OF RESIDENT FIDUCIARY. 2. When such non-resident guardian or trustee shall produce an exemplification under the seal of the office, if there be a seal, of the proper court in the state or country of his residence, con- taining all the entries on record in relation to his appointment and giving bond, and authenticated as required by the Acts of Congress, or by a diplomatic or consular officer appointed by the United States of America, as provided in paragraph 1 of this clause, the orphans' court of the proper county in this state may cause suitable orders to be made, discharging any resident fidu- ciary and authorizing the delivering and passing over of such personal property, and also requiring receipts to be passed and filed, if deemed advisable: Provided, That in all cases thirty days' notice shall be given to the resident fiduciary, if such there be, of the intended application for the order of removal; and the court may reject the application and refuse such order when- ever it is satisfied that it is for the interest of the ward or cestui que trust that such removal shall not take place, or that the claims of residents of this commonwealth are not fully protected. Note.— This is Section 2 of the Act of May 13, 1889, P. L. 190, I Purd. 1085, which amended Section 2 of the Act of April 21, 1856, P. L. 495, further amended substantially as in House Bill No. 247 of the session of 191S, except that the first proviso, added by said bill, has been transferred to the preceding paragraph, the word "filed" has been substituted for "recorded" as to receipts, and the proviso that the benefits of the act shall not extend to the citizens of a state or country in which a similar law does not exist has been omitted. The changes made by said bill were to include residents of foreign countries, and to insert in the proviso the words "if such there be." In 4S6 FIDUCIARIES ACT— Section 58 (g) 2, (h) the next to the last line, "residents of" has been substituted for "creditors in.'' The Commissioners are advised that House Bill No. 247 was not ap- proved by the Governor. Notwithstanding such veto, however, the Com- missioners, with due deference, beg leave to recommend the passage of this and the last preceding clause. See Foreign Intestates, 68 P. L. J. i; Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282. 598. AWARD TO FOREIGN TRUSTEE, WHEN ALL BENEFICIARIES FOR A TERM OF YEARS OR FOR LIFE HAVE REMOVED FROM THE STATE. (h) When all the persons for vi^hose benefit a valid trust shall have been created by will, for a term of years or for life, shall have removed from this state into any other state, territory or possession of the United States, to reside permanently therein, the orphans' court having jurisdiction of such trust is hereby authorized and empowered, on application by or on behalf of all the persons interested in the trust, to direct the trustee or trustees appointed in and by said will, to pay over said trust moneys, or transfer the securities in which they may have been invested, to a trustee or trustees duly appointed by the court of such, other state, territory or possession, upon the production to said court of satisfactory proof, by certificates, of the appointment of such trustee or trustees in the other state, territory or possession, the authority of such trustee or trustees to receive such moneys or securities, and the entry of bond and security or proof of the fact that under the laws of such state, territory or possession se- curity is not required, such certificates to be authenticated in the manner provided in clause (g), paragraph i of this section, and upon the production of satisfactory proof that the removal of the property will not conflict with the terms or limitations at- tending the rights which the cestui s que trust have in such money or securities. Note.— This is founded on Section i of the Act of May 8, 1889, P. L. 123, 4 Purd. 4886, which includes trusts created by deed as well as by will, and should be repealed only so far as it relates to the latter. In the sixth line, "jurisdiction" has been substituted for "cognizance," and in the fourth line and subsequently the words "or possession" have been added after "territory." Instead of the proviso in the Act of May 8, 1889, provisions have been inserted, beginning on the thirteenth line, con- forming to those of the preceding sections founded on the Act of May 13, 1889, P. L. 190. FIDUCIARIES ACT— Section 58 (h) 457 Section i of the Act of March 31, 1905, P. L. 91, S Purd. 5890, provides: "Executors and administrators, in this commonwealth, shall not be re- quired to deliver to any foreign executor or administrator any fund which has been devised or bequeathed, in whole or in part, by the will of the decedent, valid under the laws of this commonwealth and duly probated at the domicile of such decedent, where any person claiming such fund, or any part thereof, is or shall be a citizen of this commonwealth ; but such fund shall be distributed, under the direction of the orphans' court of the proper county, to legatees, devisees and creditors, according to the terms of said will and the laws of this commonwealth." Section 2 is merely a repealer. The purpose of this act is not clear. If it means that the court in this state shall distribute to resident legatees and creditors, it seems unneces- sary. If it means that, because there is one legatee or creditor residing in Pennsylvania, the court here shall distribute the entire estate, it is certainly undesirable. For a discussion of the Act of 1905, see Berlin's Estate, 24s Pa. 256. It is recommended that the Act of 1905 be repealed. See Foreign Intestates, 68 P. L. J. i. A petition by a non-resident cestui que trust, praying for an order directing the resident trustee to transfer the trust estate to a trustee in another state, under the Fiduciaries Act of June 7, 1917, Section 58 (,h) P. L. 447, will be refused when all parties interested in the trust have not joined in the petition. The Fiduciaries Act does not apply to a case where the parties interested resided outside of this State at the time the testatrix died, but only to a case where they have removed from this State after her death. The act does not direct the court to authorize the transfer of the estate, but authorizes it to direct the transfer when satisfied that such action will not conflict with the terms of the trust. "This clause of the Fiduciaries Act is copied substantially from the prior Act of May 8, 1889, Section i, P. L. 123, 4 Purd. 4886, and we think its purpose is very clear. It merely authorizes and empowers this court, on the petition of all persons interested in the trust, when all such persons shall have removed from this state to another state or territory, to direct the trans- fer of the trust estate; but all persons have not joined and cannot join in the present application, because there may be others having possible or contingent interests in future, and their interest should not be dis- regarded. The argument in behalf of the petitioner goes to the ex- tent, as logically it must, that a life tenant who has removed to another state has a legal right to require this court to direct such a transfer of the trust estate from our jurisdiction, and it is not difficult to imagine the disastrous results~of such an interpretation of the act." "It should be observed, moreover, that even if all the parties inter- ested had joined in the petition, this would not be such a case as was con- templated by the act. When the testatrix died in 1893, her grandson, the life tenant, had been for some years a resident of Massachusetts, as his petition states that he has lived there for thirty-six years, whereas the 458 FIDUCIARIES ACT— Sections 58 (h)-S9 (a) act in plain language provides for a case where the parties interested shall have removed from this state, contemplating, of course, a removal that has occurred after the trust has gone into effect. But in this case, when the testatrix made her will in the same year in which she died, she selected two residents of her home city as trustees, and on the death of the survivor, which event has occurred, appointed the present trustee, also resident here. She deliberately intended that, although her bene- ficiary was a non-resident, her trust estate should be administered here by trustees in whom she reposed confidence, and the estate has been so administered for the past twenty-eight years. The act does not direct the court to authorize the transfer, but con- versely authorizes the court to direct the transfer, upon the production of satisfactory proof that the removal of the property will not conflict with the terms or limitations attending the rights which the cestuis que trust have in the money or securities. This court certainly has some dis- cretion in the matter, and as we are of opinion that the present case is not such as was intended by the legislature, the petition is accordingly dismissed." Gest, J., in Dixon's Est., 30 Dist. 463. 599. GUARDIANS,— POWER OF ORPHANS' COURT TO APPOINT; EFFECT OF APPOINTMENT. Section 59. (a) The orphans' court of each county shall have the care of the persons of minors resident within said county, and of their estates, and shall have power to admit such minors, over the age of fourteen, when and as often as there shall be occasion, to make choice of guardians, and to appoint guardians for such as are under the age of fourteen or otherwise incompetent to make choice for themselves. Such appointment or admission of a guardian by the orphans' court of the county in which the minor resides, shall have the like effect in every other county in this commonwealth, as in that by the orphans' court of which he shall have been so admitted or appointed. Note. — This is Section s of the Act of March 29, 1832, i Purd. 1083, altered by inserting in the fourth line the words "over the age of four- teen," by substituting in lines 6 and 7, the words "'are under the age of fourteen" for "they shall judge too young," and by omitting the first part of the proviso, which is covered by clause (fc). Section 5 of the Act of 1832 was derived from Sections 7 and 12 of the Act of March 27, 1713, i Sm. L. 81. The Act of 1832 confined the juris- diction to minors resident within the county, and omitted that part of Section 7 of the Act of 1713 which empowered the court "to order and direct the binding or putting out of minors apprentices to trades, hus- bandry or other employment." See forms 18, 19, 94, 95. FIDUCIARIES ACT— Section 59 (0) 459 The parents of the minor lived in Philadelphia, where the father died in 1909. The mother continued to reside in Philadelphia until she re- married in 1913, since which time she has lived with her second husband in Montgomery County. The minor was taken by the mother to their new home, where she now resides with her mother and stepfather. On a petition to the Orphans' Court of Philadelphia County to appoint a guardian of the minor's estate: Held, the jurisdiction belonged to the Orphans' Court of Montgomery County, and the petition was dismissed. The Act of March 29, 1832, par. s, P. L. 190, reenacted in Section 59 of the Fiduciaries Act of June 7, 1917, P. L. 447, vests the jurisdiction to appoint a guardian of a minor's estate in the orphans' court of the county wherein the minor is resident. "We are of opinion that the jurisdiction to appoint a guardian of this minor's estate belongs to the Orphans' Court of Montgomery County and not to us. "The question is a narrow one, and we have not been able to find any decision absolutely controlling. The Act of March 29, 1832, Section S, Purd. 1083, reenacted in Section 59 (a) of the Fiduciaries Act of June 7, 1917, P. L. 447, vests the jurisdiction in the orphans' court of the county wherein the minor is resident. Judge Ashman, in Mintzer's Est., 2 Dist. R. 584, expressed the opinion that the word resident was prob- ably used advisedly, instead of domiciled, and the supreme court, in Taney's Appeal, 97 Pa. 74, and Wilkin's Est., 146 Pa. 585, appear to take the same view. Other courts may have expressed 1797. 3 Sm. L. 296, absolutely. An act entitled "An Act declaring the power and authority given by any last will and testament to executors to sell and convey real estates, to be and remain in the survivors or survivor of them, unless otherwise expressed in the will of the testator, and for other purposes therein mentioned," passed March 12, 1800, 3 Sm. L. 433, absolutely. An act entitled "An Act authorizing executors and administra- tors, in certain cases, to convey lands sold by their decedents by order of orphans' court," approved April 2, 1802, P. L- 133, absolutely. An act entitled "A supplement to the act entitled, 'An Act to enable executors and administrators, by leave of court, to convey lands and tenements contracted for with their decedents, and for other purposes therein mentioned,' " approved March 12, 1804, P. L. 271, absolutely. Section 3 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 purposes therein mentioned,' " approved March 26, 1808, P. L. 144, abso- lutely. Section 2 of an act entitled "An Act relative to dower, and for other purposes," approved April i, 181 1, P. L. 198, absolutely. An act entitled "A supplement to the act entitled, 'An Act declaring the power and authority given by any last will and 474 FIDUCIARIES ACT-Section 63 testament to executors to sell and convey real estates, to be and remain in the survivors or survivor of them, unless otherwise expressed in the will of the testator, and for other purposes therein mentioned,' " approved February 7, 1814, P. L. 44, absolutely. An act entitled, "An Act to compel trustees to account in certain cases, and for other purposes," approved February 17, 1818, P. L. 104, in so far as it relates to testamentary trustees. An Act entitled, "A further supplement to the act entitled 'An Act to enable executors and administrators by leave of the court to convey lands and tenements contracted for with their decedents, and for other purposes,' " approved March 10, 1818, P. L. 183, absolutely. Section 7 of an act entitled, "An Act to compel assignees to settle their accounts, and for other purposes," approved March 24, 1818, P. Iv. 285, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. Section 2 of an act entitled "An Act to limit the time of appeal in cases of divorce, and of the settlement of the accounts of guardians, executors and administrators," approved February 8, 1 819, P. ly. 58, absolutely. Section 2 of an act entitled "A further supplement to an act, entitled 'An Act to enable the executors and administrators by leave of court, to convey lands and tenements contracted for with their decedents, and for other purposes therein mentioned,' passed the thirty-first of March, one thousand seven hundred and ninety-two," approved February 5, 1821, P. L. 25, absolutely. An act entitled "An Act relative to guardianjs of minor children," approved March 30, 1821, P. L. 153, absolutely. Section 2 of an act entitled, "An Act to encourage domestic industry, and promote the comfort of the poor," approved March 31, 1821, P. L. 178, absolutely.' An act entitled "A further supplement to the act entitled, 'An Act directing the descent of intestates, real estates and distribution of their personal estates, and for other purposes therein men- tioned,' " approved April i, 1823, P. L. 286, absolutely. Section i of an act entitled "An Act to enable executors, administrators, guardians, and other trustees, to invest their trust moneys," approved February 18, 1824, P. L. 25, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. FIDUCIARIES ACT— Section 63 475 An act entitled "An Act to prevent the failure of trusts," approved March 22, 1825, P. L. 107, in so far as it relates to testamentary trustees. Section i of an act entitled "A supplement to the intestate ^aw of this commonwealth," approved April 8, 1826, P. L. 255, absolutely. Section 3 of an act entitled "An Act for the relief of the poor," approved April 10, 1828, P. h. 285, absolutely. Sections i and 2 of an act entitled "An Act to prevent the failure of trusts, to provide for the settlement of accounts of trustees and for other purposes," approved April 14, 1828 P. L. 453, in so far as they relate to testamentary trustees. Sections i and 2 of an act entitled "An Act concerning exec- utors," approved April 3, 1829, P. L. 122, absolutely. An act entitled "A further supplement to the act directing the descent of intestates' real estates and distribution of their personal estates, and for other purposes therein mentioned, passed the nineteenth day of April, seventeen hundred and ninety-four," approved April 7, 1830, P. L. 347, absolutely. Sections 6, 14, 15, 16, 18 to 24 inclusive, 26 to 30 inclusive, 43 and 44 of an act entitled "An Act relating to registers and registers' courts," approved March 15, 1832, P. L. 135, absolutely. Sections 5 to 34 inclusive, 47, 53 and 54 of an act entitled "An Act relating to orphans' courts," approved March 29, 1832, P. L. 190, absolutely. Sections i and 41 inclusive, 43, 45 to 61 inclusive, 66, 67 and 68 of an act entitled "An Act relating to executors and administra- tors," approved February 24, 1834, P. L. 73, absolutely. Sections i and 3 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 orphans' courts,' " approved April 14, 1835, P. L. 275, abso- lutely. Sections 12 and 13 of an act entitled "A supplement to the act entitled 'An Act to establish the district court for the city and county of Philadelphia,' passed the twenty-eight day of March, one thousand eight hundred and thirty-five," approved March 11, 1836, P. Iv. 76, in so far as they relate to testamentary trustees. Sections 15 to 21 inclusive and 23 to 26 inclusive of an act entitled "An Act relating to assignees for the benefit of creditors, and other trustees," approved June 14, 1836, P. L. 628, in so far as they relate to testamentary trustees. 476 FIDUCIARIES ACT— Secwon 63 Section 3 of an act entitled "An Act supplementary to the various acts relating to orphans' and registers courts, and ex- ecutors and administrators, and the act relating to the measure- ment of grain, salt, and coal," approved June 16, 1836, P. L. 682, absolutely. Section 2 of an act entitled "An Act to empower the court of common pleas for the city and county of Philadelphia to appoint assignees or trustees in the place of the deceased assignees or trustees of John Vaughan, and for other purposes," approved March 17, 1838, P. L,. 80, in so far as it relates to the orphans' court. Sections i and 2 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 i of an act entitled "An Act relating to orphans' courts, and for other purposes," approved October 13, 1840, P. L. (1841) I, absolutely. Section 5 of an act entitled "A further supplement to the act entitled 'An Act to establish the district court of the city and county of Philadelphia,' passed the twenty-eight day of March, one thousand eight hundred and thirty-five, and for other pur- poses," approved March 12, 1842, P. L. 66, absolutely. Section 52 of an act entitled "An Act concerning the trust es- tate of Hugh Roberts, deceased, and for other purposes," approved July 16, 1842, P. L. 374, absolutely. Section 22 of an act entitled "An Act to authorize the governor to incorporate the Delaware Canal Company, and for other pur- poses," approved April 13, 1843, P. L. 237, absolutely. Section 9 of an act entitled "An Act in regard to certain entries in ledgers in the city of Pittsburgh, and relating to the publishing of sheriffs' sales, and for other purposes," approved April 22, 1846, P. L. 476, absolutely. Section i of an act entitled "An Act relative to the appointment of trustees by orphans' court, and for other purposes," approved April 22, 1846, P. L. 483, absolutely. An act entitled "An Act to enable the executors and adminis- trators of decedents to perfect title to real estate in certain cases," approved February 8, 1848, P. L. 27, absolutely. FIDUCIARIES ACT— Section 63 477 Section 9 of an act entitled "A supplement to an act, entitled 'An Act relative to the LeRaysville Phalanx,' passed March, Anno Domini one thousand eight hundred and forty-seven, and relative to obligors and obligees, to secure the right of married women, in relation to defalcation, and to extend the boundaries of the bor- ough of Ligonier," approved April 11, 1848, P. L. 536, in so far as it relates to letters of administration. An act entitled "An Act relative to sales made by persons acting in a fiduciary capacity," approved March 14, 1849, P. L. 164, in so far as it relates to powers to sell or let real estate on ground rent, contained in any will or testamentary writing. Section 2 of an act entitled "A further supplement to an act, entitled 'An act authorizing the Governor to incorporate the Mill Creek and Mine Hill navigation and railroad company,' passed the seventh day of February, Anno Domini, one thousand eight hundred and twenty-eight ; and in relation to orphans' court deeds," approved April 9, 1849, P. L. 511, absolutely. Sections 5, 13 and 16 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 es- tate ; 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, absolutely. Section 2 of an act entitled "An Act relative to sheriffs' sales, and to the appointment of trustees in the county of Philadelphia, and to the appointment of trustees ; incorporating the First Pres- byterian Church of Pottstown, Montgomery County, and changing the venue of a certain suit in Huntingdon County," approved April 10, 1849, P. L. 597, absolutely. Section i of an act entitled "An Act relating to conveyances by trustees," approved March 14, 1850, P. L. 195, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. Sections i, 5 and 44 of an act entitled "An Act relating to the bail of executrixes; to partition in the orphans' court and com- mon 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 peddlers in the counties of Butler and Union ; to the payment of costs in actions by informers in certain cases; to taxing lands situate in 478 FIDUCIARIES ACT— Section 63 different townships ; and in relation to fees of county treasurers of Ivycoming, 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. 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, except in so far as they relate to recognizances in partition, and section 25 of said act, absolutely. Section 8 of an act entitled "An act relative to the Columbia Lyceum and Mechanics' Institute; to the act relating to in- spections ; to the claims of David King, of Venango county ; and of the heirs of John Bennet, of Lycoming county, deceased ; to authorize James T. Crabb to sell certain gun-powder in the County of Philadelphia ; relative to the estate of Francis Harley, senior, deceased ; and a supplement to an act relating to registers and registers' courts, passed March fifteenth, one thousand eight hundred and thirty-two," approved May 15, 1850, P. L. 764, absolutely. Section 6 of an act entitled "An Act supplementary to an act passed the twenty-ninth day of March, one thousand eight hundred and thirty-two, entitled 'An act relating to orphans' courts,' and relating to contracts of decedents and escheats in certain cases, and relative to the District Court of the City and County of Phila- delphia, and to Registers of Wills," approved April 3, 185 1, P. L. 305, absolutely. Section 5 of an act entitled "An Act relating to the commence- ment of actions to judgments and decrees for the payment of money to the widows and children of decedents, to partitions in the common pleas, relative to penalties on telegraph operators, to pleadings in certain actions of debt, to actions of ejectments, to the protection of fences, to partnerships, to Hmitations of writs of entry in manors, lands, and tenements, to the exemption laws, to reports of the supreme court, to appeals relating to wards, boroughs, and township officers, to the acknowledgments of deeds FIDUCIARIES act-Section 63 479 and sequestration of life estates," approved April 14, 1851, P. L. 612, absolutely. Section 18 of an act entitled "An Act to incorporate a company to erect a bridge over the river Schuylkill at Spring Mill, in Mont- gomery County, relative to the nineteenth section of 'An Act regulating certain election districts, &c.' approved March twenty- ninth, eighteen hundred and fifty-one, to school directors in Phila- delphia county, to actions for damages sustained by injuries done to the person by negligence or default, relative to the accounts of John Humes, deceased, to authorize the trustees of the Seventh Presbyterian Church of Philadelphia to convey certain real estate, to security for moneys loaned by wives to husbands, to unpaid school taxes in Bradford County, and relative to service of process on agents of joint stock companies," approved April 15, 1851, P. L. 669, absolutely. An act entitled "A supplement to an act relating to executors and administrators, passed February twenty-fourth, one thousand eight hundred and thirty-four," approved February 2, 1853, P- L. 31, absolutely. An act entitled "An Act to give power to the orphans' court to grant relief in certain cases," approved February 23, 1853, P. L,. 98, absolutely. Section i of an act entitled "An Act relative to bringing suits by creditors and others against executors, administrators, assignees and other trustees in certain cases, and serving notices and for satisfaction of mortgages, and opening judgments in certain cases," approved March 27, 1854, P. L. 214, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. Section 2 of an act entitled "A supplement to an act, entitled 'An Act relating to the sale and conveyance of real estate,' " ap- proved April 13, 1854, P. L. 368, in so far as it relates to fiduciar- ies subject to the jurisdiction of the orphans' court. An act entitled "A supplement to the act relating to executors and administrators," approved May 5, 1854, P. L. 570, absolutely. Sections 2 and 5 inclusive of an act entitled "A supplement to an act relating to assignees for the benefit of creditors and other trustees," approved May 3, 1855, P. L. 415, in so far as they relate to testamentary trustees. Section 4 of an act entitled "An Act relating to the rights of property of husband and wife," approved April 11, 1856, P. L. 315, absolutely. 480 FIDUCIARIES ACT— SecTioN 63 An act entitled "An Act respecting the estates of non-resident wards," approved April 21, 1856, P. L. 495, absolutely. Section 8 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, absolutely. An act entitled "An Act relating to testamentary trustees," ap- proved March 13, 1859, P. L. 611, absolutely. Section i of an act entitled "An Act relative to orphans' courts," approved March 22, 1859, P. L,. 207, absolutely. An act entitled "A supplement to the act, entitled 'An Act re- lating to executors and administrators,' approved the twenty- fourth day of February, Anno Domini, one thousand eight hun- dred and thirty-four," approved April 6, 1859, P. L. 384, abso- lutely. An act entitled "An Act to extend the jurisdiction of the orphans' courts in case of testamentary trusts," approved April 7, 1859, P. L. 406, absolutely. An act entitled "An Act relative to the exemption of three hundred dollars, and to the widows and children of decedents," approved April 8, 1859, -P- L. 425, in so far as it relates to the exemption allowed to the widow or children of any decedent. An act entitled "An Act relating to executors, administrators and guardians," approved April 13, 1859, P. L. 604, absolutely. An act entitled "An Act relative to the lien of legacies," ap- proved May I, 1861, P. L. 420, absolutely. An act entitled "An Act authorizing surviving executors and administrators to execute and deliver deeds of conveyance in certain cases," approved May i, 1861, P. L. 431, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. An act entitled "An Act relating to executors and other trustees," approved May i, 1861, P. L. 680, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. An act entitled "An Act regulating certain charges of executors and trustees," approved March 17, 1864, P. L. 53, absolutely. An act entitled "An Act extending the provisions of the second section of the act of April tenth, one thousand eight hundred and forty-nine, entitled 'An Act relative to sheriffs' sales, and the ap- pointment of trustees, in the county of Philadelphia, et cetera,' to the several counties of this commonwealth," approved April 23, i864, P. L. 550, absolutely. FIDUCIARIES act-Section 63 481 An act entitled "An Act relating to the appointment of guard- ians," approved August 25, 1864, P. L. 1029, absolutely. An act entitled "An Act providing additional remedies against trustees of a trust created for life, or during marriage, and pro- viding a remedy for the protection of their sureties," approved March 27, 1865, P. L. 44, in so far as it relates to testamentary trustees. An act entitled "An Act supplementary to the act to set apart, for the use of the widow, or children, of a decedent, three hun- dred dollars of the estate of said decedent, approved April four- teenth, one thousand eight hundred and fifty-one," approved November 27, 1865, P. L. (1866) 1227, absolutely. An act entitled "Supplement to an act, entitled 'An Act provid- ing additional remedies against trustees of a trust, created for life, or during marriage, and providing a remedy for the pro- tection of their sureties,' approved March twenty-seventh, one thousand eight hundred and sixty-five," approved April 17, 1866, P. L. Ill, in so far as it relates to trustees subject to the juris- diction of the orphans' court. An act entitled "An Act enlarging the powers of the orphans' court, so as to discharge Hens on real estate," approved May 17, 1866, P. L. 1096, absolutely. An act entitled "A supplement to the act of the fifteenth of March, Anno Domini one thousand eight hundred and thirty-two, entitled 'An Act relating to registers and registers' courts,' " ap- proved April 15, 1867, P. L. 86, absolutely. An act entitled "An Act to authorize the court of common pleas and orphans' court of the city of Philadelphia to appoint and re- move trustees," approved April 9, 1868, P. L. 785, in so far as it relates to trustees subject to the jurisdiction of the orphans' court. An act entitled "An Act relating to orphans' courts, conferring upon said courts power to define boundaries in certain cases of devises and conveyances for life or term of years," approved April 14, 1868, P. L. 97, absolutely. Section i of an act entitled "An Act relating to the appointment of auditors in the courts of the county of Montgomery," approved February 18, 1869, P. L. 183, absolutely. An act entitled "An Act relative to actions of trespass and for mesne profits," approved April 12, 1869, P. L. 27, absolutely. An act entitled "An Act for the protection of contingent inter- ests," approved April 17, 1869, P. L. 70, absolutely. 31 482 FIDUCIARIES ACT-SfiCTioN 63 An act entitled "An Act relating to the appraisement of real estate devised by any last will and testament within this common- wealth," approved April 17, 1869, P. L,. T2, absolutely. An act entitled "A supplement to an act relating to assignees for the benefit of creditors and other trustees, approved June fourteenth, one thousand eight hundred and thirty-six," approved May 17, 1871, P. ly. 269, in so far as it relates to fiduciaries ap- pointed by the orphans' covirt or by virtue of any last will or testament. An act entitled "A further supplement to an act entitled, 'An Act relating to executors and administrators, approved twenty- fourth of February, one thousand eight hundred and thirty-four," approved May 17, 1871, P. L. 269, absolutely. An act entitled "A further supplement to an act, entitled 'A further supplement to an act relating to orphans' courts,' passed the twenty-ninth day of March, one thousand eight hundred and thirty-two, and the supplement, passed fourteenth of April, one thousand eight hundred and thirty-five, and the further supple- ment, passed fourteenth of April, one thousand eight hundred and forty," approved May 25, 1871, P. L. 279, absolutely. An act entitled "An Act providing for the entry of certain pro- ceedings on the judgment indexes of the several courts of this commonwealth," approved June 15, 1871, P. L,. 387, in so far as it relates to proceedings to revive and continue the lien of debts against a decedent's real estate. An act entitled "An Act relating to foreign executors, adminis- trators, guardians and representatives of decedents and wards," approved April 8, 1872, P. L. 44, absolutely. An act entitled "An Act to provide for the recording of deaths of testators and intestates in the office of register of wills," ap- proved May 15, 1874, P. L,. 194, absolutely. An act entitled "An Act relative to the transfer of the loans of this commonwealth, and of the city of Philadelphia, and to amend the provisions of the twenty-second section of an act, entitled 'An Act to authorize the Governor to incorporate the Delaware Canal Company, and for other purposes,' approved the thirteenth day of April, eighteen hundred and forty-three, and extending the same to the holders of any loans of this commonwealth, or of the city of Philadelphia, domiciled or resident out of this common- wealth, who shall have heretofore died or hearafter die," approved May 15, 1874, P. L. 195, absolutely. FIDUCIARIES ACT— Section 63 483 The proviso to Section 6 of "An Act relating to the organiza- tion and jurisdiction of orphans' courts, and to establish a sepa- rate orphans' court in and for counties having more than one hundred and fifty thousand inhabitants, and to provide for the election of judges thereof," approved May 19, 1874, P. L. 206, absolutely. An Act entitled "An Act to validate sales and conveyances, under the decrees of courts of this commonwealth, by persons irregularly or improperly appointed or defectively qualified," approved April 28, 1876, P. L. 50, in so far as it relates to pro- ceedings in the orphans' court. An act entitled "A further supplement to an act, entitled 'An Act relating to orphans' court,' approved the twenty-ninth day of March, Anno Domini one thousand eight hundred and thirty-two, designed to extend the fourteenth section of said act, so as to authorize investments I y executors, trustees and other persons holding property in a fiduciary capacity in bonds or certificates of debt created by any of the counties, cities or municipal cor- porations of this commonwealth," approved May 8, 1876, P. L. 133, absolutely. An act entitled "An Act relating to the execution of trusts by corporations,'' approved February 16, 1877, P. L. 3, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. Sections I and 2 of an act entitled "An Act to provide for and to validate the execution and delivery of deeds and conveyances of real estate, in cases in which administrators, executors, guardians and trustees, may die or have died, between the time of sale and the time appointed for the payment of purchase money and de- livery of the conveyance, and also in cases in which the adminis- trator, executor, guardian or trustee may have received authority from the proper court to purchase real estate sold by him, either under the provisions of any last will and testament, or by the authority or under the direction of any court having jurisdiction to make a decree, directing such real estate to be sold," approved May 22, 1878, P. L. 83, in so far as they relate to the orphans' court. Sections i, 2 and 3 of an act entitled "An Act to provide for the appointment of trustees durante absentia, and defining the powers and duties of the same," approved April 11, 1879, P. L. 21, absolutely. 484 FIDUCIARIES ACT— Section 63 An act entitled "An Act to regulate the compensation of audi- tors and commissioners," approved June 4, 1879, P. L. 84, in so far as it relates to auditors and commissioners appointed by the orphans' court. An act entitled "A supplement to extend the provisions of an act, entitled 'An Act providing additional remedies against trus- tees of a trust created for life, or during marriage, and providing a remedy for the protection of their sureties,' approved the twenty- seventh day of March Anno Domini, one thousand eight hundred and sixty-five, to the orphans' courts of the respective counties of this commonwealth," approved May 10, 1881, P. L. 14, in so far as it relates to trustees subject to the jurisdiction of the orphans' court. An act entitled "A supplement to an act, approved April thirteen, one thousand eight hundred and fifty-nine, entitled 'An Act re- lating to executors, administrators and guardians,' " approved June ID, 1881, P. ly. 106, absolutely. An act entitled "An Act to confer power on the several orphans' courts having jurisdiction of the accounts of executors and ad- ministrators to order and direct a sale for the payment of the debts of such decedent of any lands lying partly in two or more counties," approved June 4, 1883, P. L. 65, absolutely. An act entitled "An Act providing the manner in which widows' and children's exemption in decedents' estates shall and may be set aside to them in certain cases," approved June 4, 1883, P. L. 74, absolutely. An act entitled "An Act to permit foreign executors or ad- ministrators to issue scire facias to preserve and continue the lien or liens of judgments in favor of decedents within this common- wealth, and before letters of administration have been taken out within this state," approved June 27, 1883, P L. 163, absolutely. An act entitled "An Act relating to the grant of letters of ad- ministration upon the estates of persons, presumed to be dead, by reason of long absence from their former domicile," approved June 24, 1885, P. L. 155, absolutely. An act entitled "An Act limiting the time within which action may be brought upon refunding bonds given upon the distribution or partition of estates of decedents," approved June 30, 1885, P. L. 203, absolutely. An act entitled "An Act authorizing executors or trustees to unite with others in the organization of corporations," approved April 22, 1889, P. L. 42, absolutely. FIDUCIARIES ACT— Section 63 485 An act entitled "An Act to authorize courts, having cognizance of trusts created by deed or will, to direct trust funds to be placed in the custody of trustees appointed by the courts of another state or territory of the United States, in cases where the person or persons beneficially interested in such trust have removed to such other state or territory of the United States," approved May 8, 1889, P. L,. 123, in so far as it relates to trusts created by will. An act entitled "An Act relating to orphans' court sales," ap- proved May 9, 1889, P. L. 182, absolutely. An act entitled "An Act amending an act, entitled 'An Act respecting the estate of non-resident wards,' approved the twenty- first day of April, Anno Domini one thousand eight hundred and fifty-six, extending the provisions thereof so that the same may apply to trustees and cestui que trusts;^ approved May 13, 1889, P L. 190, absolutely. Section 2 of an act entitled "An Act relating to judicial sales and the preservation of the lien of mortgages," approved May 19, 1893, P. L. no, absolutely. An act entitled "An Act to enable the surety of any trustee, committee, guardian, assignee, receiver, administrator, executor, or other trustee, or any person interested in the trust, to require the filing of statements exhibiting the mamier of the investment of the trust funds, and providing for the removal of such trustee, committee, guardian, assignee, receiver, administrator, executor, or other trustee, by the court," approved June 3, 1893, P. L. 273, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. An act entitled "An Act regulating the satisfaction, extinguish- ment or discharge of dowers, legacies or other charges upon land, by judicial decree where the legal presumption of payment of the same exists from lapse of time, or where payment of the same has been made in full and no satisfaction, extinguishment, release thereof appears of record," approved June 8, 1893, P. L. 356, absolutely. An act entitled "An Act to limit the duration of the lien of the debts of decedents other than those of record on their real estate," approved June 8, 1893, P. L. 392, absolutely. An act entitled "An Act providing for the release and discharge of encumbrances or charges on land in all cases in which the period of twenty-one years has elapsed after the principal of the encumbrance or charge has become due and payable, and no pay- 486 FIDUCIARIES ACT— Sbction 63 ment has been made within such period of twenty-one years on account of such encumbrance or charge by the owner or owners of the land sought to be released and discharged and no sufficient release is of record in the county, and regulating proceedings for such release and discharge," approved May 8, 1895, P. L. 44, in so far as it relates to the orphans' court. An act entitled "A supplement to an act, entitled 'An Act relating to executors and administrators,' approved February twenty-fourth, one thousand eight hundred and thirty-four, re- lating to the lien of judgments against decedents," approved June 18, 1895, P. L. 197, absolutely. Section i of an act entitled "An Act providing that the right of action for injury wrongfully done to the person shall survive against the personal representative of the wrong-doer, and limit- ing the time within which suit for such injury must be brought," approved June 24, 1895, P. L. 236, absolutely. An act entitled "An Act to allow receivers, assignees, guardians, committees, trustees, executors and administrators to include in the lawful expenses of executing their trusts such reasonable sum paid a company, authorized under the laws of this state so to do, for becoming their surety as may be by court allowed, not exceed- ing one per centum per annum on the amount of such bonds," ap- proved June 24, 1895, P. L. 248, in so far as it relates to fiducia- ries subject to the jurisdiction of the orphans' court. An act entitled "An Act to authorize executors and trustees, non-residents of the commonwealth, to convey real estate," ap- proved June 23, 1897, P. L. 200, absolutely. An act entitled "An Act authorizing the payment into the orphans' court of the money due on dowers, legacies or other charge upon land where the person or persons to whom the dower, legacy or other charge upon land is due and payable cannot be found, and providing for the satisfaction, extinguishment or dis- charge thereof, and to ascertain the amount thereof," approved July 14, 1897, P. L. 269, absolutely. An act entitled "An Act enlarging the powers of the orphans' court, and to provide a further remedy for the collection of dower interest due to widows," approved April 28, 1899, P. L. 120, absolutely. An act entitled "An Act authorizing the orphans' courts of the commonwealth to decide specific performance of written contracts, and also parol contracts when so far executed that it would be FIDUCIARIES ACT— Section 63 487 inequitable to rescind, for the sale of real estate, where the ven- dor has died without conveying, and in cases where the vendee has died without having paid the purchase money, and authorizing the recording of the decrees in such cases in the counties where the real estate lies," approved April 28, 1899, P. L. iS/ absolutely. An act entitled "An Act to allow an executor, administrator, guardian, assignee, or trustee to institute an action at law, or other legal or equitable proceedings, against a co-executor, ad- ministrator, guardian, assignee or trustee, to recover or enforce any debt or obligation individually due the estate which he repre- sents," approved May 11, 1901, P. L,. 174, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. An act entitled "An Act to confer on the several orphans' courts having jurisdiction of the accounts of guardians, power to order and direct a mortgage or a public or private sale, for the payment of debts or for other purposes, of any lands lying partly in two or more counties, divided by county lines," approved May 21, 1901, P. L. 272, absolutely. An act entitled "An Act to amend the first section of an act, entitled 'An Act to limit the duration of the lien of the debts of decedents, other than those of record, on their real estate,' ap- proved the eight day of June, Anno Domini one thousand eight hundred and ninety-three, and to extend the provisions of said act so as to limit the duration of the lien upon real estate of the decedents, other than those secured by mortgage or by judgment entered or revived by scire facias within five years prior to the death of such decedent," approved June 14, 1901, P. L. 562, absolutely. Section i of an act entitled "An Act authorizing the orphans' court to adjudge real estate to persons, to whom the right to take the same at a certain valuation has been given in a will, and who are appointed executors of the same will ; providing for the pay- ment of the purchase money, and confirming titles to real estate heretofore taken under similar proceedings," approved March 5, 1903, P. L. 10, absolutely. An act entitled "An Act providing for the voting of shares of stock in corporations in this commonwealth, held by executors, ad- ministrators, guardians, and trustees, and the manner of voting the same," approved March 16, 1905, P. L. 42, in so far as it re- lates to fiduciaries subject to the jurisdiction of the orphans' court. 488 FIDUCIARIES ACT-Section 63 An act entitled "An Act to amend the first section of an act approved the eleventh day of April, Anno Domini one thousand eight hundred and seventy-nine, entitled 'An Act to provide for the appointment of trustees durante absentia, and defining the powers and duties of the same,' providing for the appointment of a trustee of the estate of any absentee, who has been a resident of this commonwealth or of any other state, territory or foreign country, who has left either real or personal estate, or both, in this commonwealth," approved March 30, 1905, P. L. 77, abso- lutely. An act entitled "An Act to regulate the transfer of funds from executors and administrators, in this commonwealth, to foreign executors and administrators," approved March 31, 1905, P. L. 91, absolutely. An act entitled "An Act to extend the statute of limitations to debts or demands arising or falling due to the estate of a decedent after the death of such decedent," approved April 6, 1905, P. L. 114, absolutely. An act entitled "A supplement to an act, entitled 'An Act re- lating to the granting of letters of administration upon the estates of persons, presumed to be dead, by reason of long absence from their former domicile,' approved June twenty-fourth, one thou- sand eight hundred and eighty-five ; providing for the probate of a will of a person whose death, by presumption has been established, and for attachment of such will to letters of administration granted in the case," approved April 14, 1905, P. L. 153, absolutely. An act entitled "An Act to amend an act approved the seven- teenth day of May, one thousand eight hundred and sixty-six, entitled 'An Act enlarging the powers of the orphans' court, so as to discharge liens on real estate,' so as to include charges on real estate by the provisions of a last will and testament, or otherwise," approved March 22, 1907, P. L. 29, absolutely. An act entitled "An Act authorizing employers to pay to the wife, children, brother or sister, father or mother, boarding-house keeper, undertaker, nurse, or physician wages due a deceased em- ploye," approved May 23, 1907, P. L. 201, absolutely. An act entitled "An Act to allow receivers, assignees, guardians, committees, trustees, executors, and administrators to include in the lawful expenses of executing their trust such reasonable sum paid a company, authorized under the laws of this state so to do, for guaranteeing the payment of the principal and interest of FIDUCIARIES ACT— SiscTioN 63 489 mortgages or other securities in which they are required to invest the funds of their estate, not exceeding one-half of one per centum per annum on the principal of such mortgage or other securities," approved May 28, 1907, P. L. 271, in so far as it relates to fiducia- ries subject to the jurisdiction of the orphans' court. An act entitled "An Act to provide for the discharge of sureties upon bonds of trustees, committees, guardians, assignees, re- ceivers, executors, administrators, and other fiduciaries," ap- proved June I, 1907, P. L. 384, in so far as it relates to fiduciaries subject to the jurisdiction of the orphans' court. An act entitled "An Act authorizing the parties in interest, or their counsel, to select auditors and masters needed in judicial proceedings; except in divorce cases," approved April i, 1909, P. L. 95, in so far as it relates to proceedings in the orphans' court. An act entitled "An Act to amend sections twenty-nine and thirty of an act, approved the twenty-ninth day of March, Anno Domini eighteen hundred and thirty-two, entitled 'An Act re- lating to orphans' courts,' and validating execution and attachment execution process issued out of the courts of common pleas of this commonwealth, upon transcripts from any orphans' court of this commonwealth, for balances due from, or in the hands of, any executor, administrator, guardian, or other accountant, on the settlement of their respective accounts in the orphans' court," ap- proved April 27, 1909, P. L. 202, except in so far as it relates to proceedings begun prior to its date. An act entitled "An Act to limit the duration upon real estate of the debts of decedents, including the expenses of the settlement of the estate, and to provide under what conditions the lien may be continued," approved May 3, 1909, P. L. 386, absolutely. An act entitled "An Act to provide for the filing, auditing, and confirmation, in certain cases, of accounts of trustees and of com- mittees of lunatics and of habitual drunkards," approved May 3, 1909, P. Iv. 391, in so far as it relates to trustees subject to the jurisdiction of the orphans' court. An act entitled "An Act providing that the widow or children of any decedent dying outside of this commonwealth, but whose estate is settled in this commonwealth, may retain either real or personal property belonging to said estate to the value of three hundred dollars," approved May 6, 1909, P. L. 459, absolutely. Sections i, 2 and 3 of an act entitled "An Act relating to pri- vate sales of real estate, ordered, decreed, or approved by the 490 FinUCIARIES ACT— Suction 63 orphans' courts ; and providing a method of giving notice of such sales, and validating such private sales of real estate, heretofore made under the authority of the orphans' courts, for the payment of debts," approved June 9, 191 1, P. L. 724, absolutely. An act entitled "An Act to amend section ten of an act, ap- proved the twenty-ninth day of March, Anno Domini one thou- sand eight hundred and thirty-two, entitled 'An Act relating to orphans' courts,' so as to permit the accounts of the guardians of minors' property therein mentioned and described to be examined and audited, and the matters therein contained confirmed by de- cree of orphans' court, with the same force and effect as the partial accounts of executors, administrators, and temporary trustees are audited, examined, allowed, and confirmed," approved June 9, 191 1, P. L,. 744, absolutely. An act entitled "An Act to confer power on the several orphans' courts having jurisdiction thereof, when the balance for distri- bution in an estate, after the debts are paid, includes stocks, bonds, and other securities, to make distribution of the same in kind to parties entitled thereto, to authorize subsequent sales thereof, and to validate such distributions heretofore made," approved June 10, 191 1, P. L. 870, absolutely. An act entitled "An Act to provide that persons buying real estate in this commonwealth, from executors or trustees named in the last will and testament of any person dying testate, and who hold the same in trust under the provisions thereof, and who make sale of same under the power of sale in said last will and testament contained, shall take title to said real estate free and discharged of any obligation to see to the application of the pur- chase money," approved June 10, 191 1, P. L. 874, absolutely. An act entitled "An Act to amend an act, approved the eight day of April, Anno Domini one thousand eight hundred and seventy-two, entitled 'An Act relating to foreign executors, ad- ministrators, guardians, and representatives of decedents and wards,' by extending the provisions thereof to the assignment and satisfaction of record of mortgage debts and indentures of mort- gage and to the receipt of the interest thereon," approved June 13, 1911, P. L. 890, absolutely. An act entitled "An Act to amend an act approved the twenty- fourth day of February, one thousand eight hundred thirty-four, entitled 'An Act relating to executors and administrators,' " ap- proved May 23, 1913, P. L. 344, absolutely. FIDUCIARIES ACT— Suction 63 491 An act entitled "An Act relating to the real estate of persons presumed to be dead, and providing a method of freeing such estate from all claim or interest of such persons," approved May 28, 1913, P. L. 369, absolutely. An act entitled "A supplement to an act, entitled 'An Act relat- ing to the grant of letters of administration upon the estates of persons, presumed to be dead, by reason of long absence from their former domicile,' approved June twenty-fourth, one thou- sand eight hundred and eighty-five; providing for the grant of ancillary letters of administration in this commonwealth, upon the estates of persons, presumed to be dead, by reason of long absence from their former domicile, in any other state, territory, or foreign country, who have left personal estate within this com- monwealth," approved May 28, 1913, P. L. 373, absolutely. An act entitled "An Act to amend an act approved the ninth day of June, one thousand nine hundred and eleven, entitled 'An Act relating to private sales of real estate, ordered, decreed, or ap- proved by the orphans' courts ; and providing a method of giving notice of such sales, and validating such private sales of real estate, heretofore made under the authority of the orphans' courts, for the payment of debts,' " approved June 12, 1913, P. L. 470, absolutely. An act entitled "An Act to amend an act, approved the four- teenth day of April, one thousand eight hundred and fifty-one, entitled 'An Act relating to the commencement of actions, to judg- ments and decrees for the payment of money to the widows and children of decedents, to partitions in the common pleas, relative to penalties on telegraph operators, to pleadings in certain actions of debt, to actions of ejectments, to the protection of fences, to partnerships, to limitations of writs of entry in manors, lands and tenements, to the exemption laws, to reports of the supreme court, to appeals relating to wards, boroughs and township officers, to the acknowledgments of deeds and sequestration of life estates,' by regulating the appointment and number of appraisers," ap- proved July 21, 1913, P. L. 877, absolutely. Section i of an act entitled "An Act authorizing the several orphans' courts to empower guardians and trustees of estates of minors to elect, in writing, to take land in fee, which has been ordered to be sold by the provisions of any duly probated will, in lieu of legacies bequeathed or distributable to said minors from the proceeds of such sale, and validating certain elections to take 492 FIDUCIARIES ACT— Section 63 land in lieu of legacies heretofore made pursuant to an order of court," approved July 22, 1913, P. L. 908, absolutely. An act entitled "An Act authorizing the orphans' court to re- duce, under certain circumstances, the bond of any fiduciary; imposing duties on registers of wills in connection therewith," ap- proved May 3, 1915, P. L. 218, absolutely. An act entitled "An Act relative to estates of decedents," ap- proved May 6, 1915, P. L. 265, absolutely. An act entitled "An Act to amend an act approved the twenty- fourth day of February, one thousand eight hundred thirty-four, entitled 'An Act relating to executors and administrators,' as amended," approved May 6, 1915, P. L. 267, absolutely. An act entitled "An Act to amend an act, entitled 'An Act to limit the duration upon real estate of the debts of decedents, in- cluding the expenses of the settlement of the estate, and to pro- vide under what conditions the lien may be continued,' approved the third day of May, one thousand nine hundred and nine, so as to restrict the revival of judgment liens by the death of the debtor to real estate still owned by said decedent at the date of his death," approved May 14, 1915, P. L. 475, absolutely. An act entitled "A supplement to an act approved the fourteenth day of April, one thousand eight hundred and fifty-one, entitled 'An Act relating to the commencement of actions to judgments and decrees for the payment of money to the widows and children of decedents, to partitions in the common pleas, relative to penal- ties on telegraph operators, to pleadings in certain actions of debt, to actions of ejectments, to the protection of fences, to partner- ships, to limitations of writs of entry in manors, lands, and tene- ments, to the exemption laws, to reports of the supreme court, to appeals, relating to wards, boroughs, and township officers, to the acknowledgments of deeds and sequestration of life estates,' pro- viding a method of allowing a widow's exemption, where the property consists of real estate not readily divided," approved June I, 1915, P. L. 682, absolutely. An act entitled "An Act to amend section three of an act, ap- proved the fourteenth day of April, Anno Domini one thousand nine hundred and five, entitled 'A supplement to an act, entitled "An Act relating to the granting of letters of administration upon the estates of persons, presumed to be dead, by reason of long ab- sence from their former domicile," approved June twenty-fourth, one thousand eight hundred and eighty -five; providing for the FIDUCIARIES ACT— SEC.63; ACT JULY 11, 1917 (P.L.790)— Sec.i 493 probate of a will of a person whose death by presumption has been established, and for attachment of such will to letters of administration granted in the case,' by providing for the issuance of letters testamentary to the executor named in such will, in the same manner and form as if such supposed decedent were ac- tually dead," approved June i, 1915, P. L. 689, absolutely. An act entitled "An Act to amend section five of an act, entitled 'An Act relating to the grant of letters of administration upon the estates of persons presumed to be dead, by reason of long absence from their former domicile' ; approved the twenty-fourth day of June, Anno Domini one thousand eight hundred and eighty-five, by authorizing the several orphans' courts of this commonwealth to accept refunding bonds from the distributees without sureties, in certain cases," approved June 11, 191 5, P. L. 945, absolutely. 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. Provided, however, that nothing in this act shall be construed to repeal or in any way affect the existing law requiring publication of legal advertisements or notices in legal journals or periodicals designated by rule of court for that purpose.^ ^This proviso did not appear in the commissioners' draft. ACT OF JULY II, 1917 (P. L. 790.) 623. RIGHTS OF FIDUCIARIES AS TO COAL LEASES AUTHORIZING TRUSTEES, GUARDIANS, AND OTHER FIDUCIARIES TO SELL, ASSIGN, ALTER, MODIFY OR SUPPLEMENT COAL MINING LEASES, WITH THE APPROVAL OF THE COURT HAVING JURISDICTION OF THEIR ACCOUNTS. S:ECTiON I. Be it enacted, &c. That from and after the pas- sage of this act, any trustee, guardian, or other fiduciary, having an interest in any coal-mining lease, may sell, assign, and with the consent of the lessees, thereof, alter, modify or supplement such coal mining lease, with the approval of the court having jurisdiction of the accounts of such fiduciary. The Fiduciaries Act of June 7, 1917, P. L. 447. 46 (s), abolished the concurrent jurisdiction formerly exercised by the court of common 494 -^CT OF JULY ii, 1917 (P. L. 790)— Sections i, 2 pleas and the orphans' court over the accounts of testamentary trustees appointed nominatim by the will, and vested such jurisdiction exclusively in the orphans' court of the county where the will is probated. Under the Act of July 11, 1917, P. L. 790, the orphans' court has jurisdiction of a petition by a testamentary trustee to modify the terms of a coal mining lease authorized by a decree of the court of common pleas. This is a remedial act and relates to procedure, and such a statute will operate, in the absence of a saving clause, to transfer juris- diction even as the pending proceedings. "We have now come to the conclusion that we have jurisdiction in the premises. So far as the proceedings in the court of common pleas No. 3 are concerned, it is clear that the court did no more than to authorize the trustee to make leases for the term of fifteen years, and its decrees did not authorize or direct the provision as to royalties etc., that are now alleged to be unfairly onerous upon the lessees. But although the Baird Snyder lease was specifically authorized by the decree of the court of common pleas No. 1, we are of opinion, that the jurisdiction to modify its terms is also by the Act. of July 11, 1917, P. L, 790, vested in this court. That act is remedial in character, and relates to procedure ; and the general rule in such cases is that such a statute will operate, in the absence of a saving clause, to transfer jurisdiction even as to pending proceedings. There is good reason in the present instance for our jurisdiction, for the account of the trustee should clearly be filed in this court, and it is eminently proper that any modification of this lease, the rentals of which would be included in an account, should also be subject to our approval." Gest, J., in Girard's Est., 48 Pa. C. C. 608, 29 Dist. 62. 624. PROCEDURE. Section 2. The procedure under this Act shall be the same as the procedure for the sale of real estate prescribed by sections four and twelve of the Revised Price Act of one thousand nine hundred and seventeen. See Sees. 183 and 191, supra. See form 78. See Girard's Est., 48 Pa. C. C. 608, 29 Dist. 62. FORMS Ofpiciai, Forms of the Register of Wrus of Phuadelphia County. 1. Petition for probate and letters testamentary. (Sec. 358). 2. Oath of executor, 380, 381. 3. Oath of subscribing witnesses, 215. 4. Oath of subscribing witnesses where will executed by mark, 216. 5. Oath of subscribing witnesses to will disposing of real estate in another state requiring special proof, 215. 6. Same, longer form, 215. 7. Oath to signature to will where no witnesses, 215. 8. Oath to signature of a witness who is dead or cannot be lo- cated, 215. 9. Decree of probate. 10. Petition for letters of administration, 358. 11. Bond and oath of administrator, 381-2-3. 12. Petition for letters of administration c. t. a., 358-9. 13. Petition for letters of administration d. b. n. c. t. a., 358, 360. 14. Bond and oath of administrator c. t. a., 382-3. 15. Inventory and appraisement, 392. 16. Advertisement of letters, 391. Official Forms of Orphans' Court of Philadelphia County. 17. Certificate of appointment of trustee with security, 584. 18. Certificate of appointment of guardian without security, 599. 19. Certificate of appointment of guardian with security, 599. 20. Guardian's inventory, 606. 21. Bond of guardian of minor's estate, 605. 22. Bond of trustee appointed, 388. 23. Bond of fiduciary on sale of real estate, 192. 24. Bond of fiduciary for miscellaneous transactions where security is required, 388. 25. Bond for costs on appeal from orphans' court, 163. 26. Justification by individual sureties. 27. Citation, 116. 28. Petition for distribution of intestate's estate, 552. 29. Petition for distribution under a will, 552. 30. Petition for distribution of a trust estate, 552. Official Forms of Register of Wills of Allegheny County. 31. Affidavit of death testate. 32. 33 34. 35 36. Citation to produce will, 267. Subpoena to witness, 268. Commission and deposition of witnesses to will, 269. Petition for probate and letters testamentary, 358. Oath of subscribing witnesses to will, 215. 495 496 FORMS 37. Oath to decedent's signature where no witnesses, 215. 38. Citation to show cause why letters should not issue. 39. Renunciation of right to administer, 357. 40. Petition for letters of administration, 358. 41. Bond and oath of administrator, 381-2-3. 42. Petition for letters of administration c. t. a., 358-9. 43. Oath of administrator c. t. a., 382. 44. Bond of administrator c. t. a., 383. 45. Bond of non-resident executor, 384. 46. Petition for probate of foreign will, 266. 47. Certificate of filing foreign will, 592. 48. Petition for ancillary letters of administration on foreign will, 592. 49. Certificate of filing foreign letters of administration, 592. 50. Appeal from the register, 281. 51. Bond of caveator, 281. 52. Inventory and appraisement, 392. 53. Affidavit of non-resident executor as to debts and transfer of securities, S92. Official Forms of Orphans' Court of Allegheny County. 54. Petition for distribution of intestate's estate, SS2. 55. Petition for distribution under a will, 552. Miscellaneous Forms. (The following forms are not official, but are merely drafted from petitions which from time to time have been presented to the orphans' courts of various counties under the Acts of Assembly herein set forth. To draft a form which would suit every case is, of course, impossible and an attempt has been made only to indicate in a general way the subject matter which should appear in each petition to show the juris- diction of the court, the status of the parties in interest and the reasons for the petition. It should be noted that in Philadelphia County under a recent ruling, it is required that the decree be placed at the beginning, rather than at the end of the petition. The forms herein for petitions under the Revised Price Act are modeled, to a large extent, on the forms given by Roland R. Foulke, Esq., in his Treatise on the Price Act. In such petitions in Philadelphia county by a recent ruling it is of importance that the affidavits by real estate experts should show that they have no interest in the subject-matter of the petition.) 56. Petition for citation to show cause why an inquest in partition should not be granted, 4. 57. Petition for citation to show cause why guardian ad litem should not be appointed, 116, 616. 58. Petition under the Revised Price Act by executor for leave to sell real estate at private sale where no authority to sell is given in the will, 183. 59. Petition under the Revised Price Act by ancillary executor and trustee for leave to sell real estate at private sale when the time fixed for sale in the will has not arrived, 183. FORMS 497 60. Petition under the Rivised Price Act by a church holding property in trust for leave to sell the same at private sale vtrhere no power of sale is given under the will, 183. 61. Petition under the Revised Price Act by Trustee for leave to sell real estate at private sale where the trustee has no power of sale under the will, 183. 62. Petition under the Revised Price Act by trustee for leave to join with others in the private sale of real estate where there is no power of sale in the will, 183. 63. Petition under the Revised Price Act by guardian for leave to sell real estate at private sale where the premises are in bad repair and the sale will increase the income for the minor, 183. 64. Petition under the Revised Price Act by guardian for leave to join with others in the private sale of real estate to avoid partition, 183. 65. Petition under the Revised Price Act by trustee for leave to sell an irredeemable ground rent at private sale, 183. 66. Petition under the Revised Price Act by trustee for leave to assign and extinguish an irredeemable ground rent on a three per cent, basis, 183. 67. Petition under the Revised Price Act by a guardian for the ap- pointment of a trustee to make private sale of real estate in which the minor has an interest, 185. 68. Petition under the Revised Price Act by trustees for leave to sell real estate at private sale and by a co-trustee to purchase at such sale, 202. 69. Election of widower to take under will, 245. 70. Election of widow to take against will, 245. 71. Petition to the register to revoke letters of administration upon the discovery of a will, 264. 72. Petition to register for citation on party in custody of will to present same for probate or on failure thereof to show cause why letters of administration should not be granted, 267. 73. Petition to the Orphans' Court sur appeal from Register to open the probate of a will and allow probate of an after-discovered codicil, 285. 74. Petition for the appointment of an administrator d. b. n. c. t. a. where the decedent has been dead more than 21 years, 356. 75. Petition by guardian for reduction of security on his bond, 389. 76. Petition for widow's exemption in cash, 403. ^T. Petition by Trustee for leave to execute a lease of real estate for ten years, 497. 78. Petition by trustee for leave to join in the execution of lease of coal and mineral rights for a period exceeding five years, 497, 624. 79. Petition by trustee for leave to purchase real estate with uninvested principal, 529. 32 498 FORMS 80. Petition by trustee for leave to purchase real estate requiring an investment of an amount larger than that authorized by the will, 529. 81. Petition by creditor for citation on executor to file an account, 539. 82. Petition by an accountant for the appointment of an auditor in counties having no separate orphans' court, 550. 83. Petition to open an adjudication based upon an erroneous statement of fact, 551. 84. Petition for the review of an adjudication by a known creditor who was given no notice of audit, 551. 85. Petition for the distribution of an estate not exceeding three hundred dollars, 554. 86. Petition for the discharge of an executor, 563. 87. Petition for the discharge of ancillary executor, 563. 88. Petition for the discharge of administrator d. b. n. c. t. a., 563. 89. Petition for the discharge of the guardian of the estate of a minor, 563- 90. Petition for the discharge of surety on the bond of a trustee, 563. 91. Petition for the appointmenti of a substituted trustee on the resigna- tion of the trustee, 584. 92. Petition for the discharge of trustee and appointmenti of substituted trustee on the resignation of the former, 584. 93. Certificate and affiidavit by foreign fiduciary entitled to an award in distribution, 595. 94. Petition for the appointment of a guardian for the estate of a minor under the age of 14 years, 599. 95. Petition for the appointment of a guardian for the estate of a minor over the age of 14 years, 599. 96. Petition by guardian for leave to pay mother of minor income and portion of principal for support, 607. 97. Petition by guardian for leave to pay income from, trust to mother of minor for its education, maintenance and support, 607. 98. Petition by guardian of minor to make payment of principal in relief of deficiency of income, 607. 99. Petition by guardian of minor to make payment of a lump sum out of income to defray wedding expenses of minor, 607. 100. Petition by trustee to make payment to foreign guardian, 607. loi. Petition for appointment of guardian ad litem for minors under the age of 14 years for representation in sale of real estate, 616. 102. Petition for appointment of guardian ad litem for minor over the age of 14 years for representation at audit, 6i6. 103. Petition by guardian for leave to enter security to receive award from foreign jurisdiction. FORMS I, 2 499 I. PETITION FOR PROBATE AND LETTERS TES- TAMENTARY. (Sec. 358.) To , Bsq., Register of Wills and ex-officio Clerk of the Orphans' Court for the City and County of Philadelphia, in the Commonwealth of Pennsylvania. In the matter of the probate of the last will and testament of , deceased. The petition of respectfully showeth that the Execut named in the last will and testament of dated the day of A. D. 19 — That said ■ — was a citizen of the United States and resident of Philadelphia County, State of Pennsylvania, and departed this life at number in the County of and State of on the day of A. D., 19—, at o'clock M. The said testa was possessed of personal property to the value of $ and of real estate (less incumbrance) to the value of $ as near as can be ascertained, situated as follows : Therefore the said respectfully appl — for probate of the said last will and testament and for letters testamentary thereon. Dated , A. D., 19—. Philadelphia County, jy; , named in the above application, being duly according to law, say that the matters and things set forth in the foregoing petition are true to the best of knowledge and belief. and subscribed before me, at' Philadelphia, A. D., 19— OATH OF EXECUTOR. 380, 381 (Signature) City and County of Philadelphia, ss: do that as the of the foregoing last will and testament deceased, will well and truly ad- minister the goods and chattels, rights and credits of said deceased. according to law, and that will diligently and faithfully regard and well and truly comply with the provisions of the law 500 FORMS 2, 3, 4, S relating to collateral inheritances. That the said testat — died on the day of A. D., 19 — , at — o'clock — M. and subscribed before me,'' the date above, and letters testa- mentary granted unto (Signature) 3. OATH OF SUBSCRIBING WITNESSES. 215 Then personally appeared the subscribing witnesses to the foregoing deceased, and on solemn did say that present and did see and hear deceased, the testa — therein named seal, publish and declare the same as and for and testament and at the doing thereof was of sound disposing mind, memory and understanding to the best of knowledge and belief. and subscribed before"^ me, the above date. > J (Signatures) 4. OATH OF SUBSCRIBING WITNESSES WHERE WILL EXECUTED BY MARK. 216 City and County of Philadelphia, ss: Then personally appeared the subscribing witnesses to the foregoing deceased, and on solemn did say that present and did see and hear deceased, the testa — therein named, make mark, seal, publish and declare the same as and for and testament and that at the doing thereof was of sound disposing mind, memory and understanding, to the best of knowledge and belief. The name of testat — having been subscribed in presence, and by direction and authority. and subscribed before'\ me, the above date. (Signatures) 5. OATH OF SUBSCRIBING WITNESSES TO WILL DISPOSING OF REAL ESTATE IN ANOTHER STATE REQUIRING SPECIAL PROOF. 215 City and County of Philadelphia, ss: Then personally appeared the subscribing witnesses to the foregoing deceased, and on solemn did say FORMS 5, 6, 7 501 that present and did see and hear deceased, the testa — therein named seal, publish and declare the same as and for and testament and that at the doing thereof was of sound disposing mind, memory and understanding, to the best of knowledge and belief. And further, that the said testat — so signed the same in presence, and at request the said deponents in presence and in the presence of each other subscribed their own proper signatures and handwriting as witnesses thereto, all being present at the same time at the execution of said will. and subscribed before "] me, the above date. > J (Signatures) 6. SAME, LONGER FORM. 215 City and County of Philadelphia, ss: Then again personally appeared the subscribing wit- nesses to the foregoing deceased, and on solemn did say that present together with the other sub- scribing witness and did see and hear deceased, the testat — therein named seal, publish and declare the same as and for h — last will and testament and that at the doing thereof testat — was of sound disposing mind, memory and understanding, to the best of knowledge and belief. And further, that the said testat — so signed the same in presence and at the request of testat — the said deponent in the presence of the other subscribing witnesses, and the other subscribing witness in the presence of the testat — and in the presence of each other subscribed their own proper signatures and hand- writing as witnesses thereto, all being present at the same time at the execution of said will. and subscribed before "| me, the above date. > J (Signatures) 7. OATH TO SIGNATURE TO WILL WHERE NO WITNESSES. 215. City and County of Philadelphia, jj.' Registers' Office, 192 — Then personally appeared who being duly 502 FORMS 7, 8, 9 according to law, say that he well acquainted with the Test above named, in lifetime, and familiar with signature, having frequently seen write name as well as other matters; that carefully examined the foregoing signature and verily believe to be in — own proper handwriting. and subscribed before me, the date above. Deputy Register 8. OATH TO SIGNATURE OF A WITNESS WHO IS DEAD OR CANNOT BE LOCATED. 215. City and County of Philadelphia, .f.?; Then personally appeared who being duly — ■ according to law, say that he well acquainted with one of the subscribing witnesses to the foregoing deceased familiar with signature having frequently seen write name as well as other matters; that carefully examined the foregoing signature and verily believe to be in own proper handwriting and subscribed ^ before me, the above date. > Deputy Register, j 9. DECREE OF PROBATE. STATE OF PENNSYLVANIA, City and County of Philadelphia Be it Remembered, That on the day of A. D. 192 , before me, •, Register of Wills for the City and County aforesaid, after due proof and hearing had, according to the Laws of the said State, IT IS ORDERED AND DECREED, that the last Will and Testa- ment late of said City and County, deceased, be duly admitted to probate and filed of record in the office of the Register of Wills of the said City and County. IN TESTIMONY WHEREOF, I have hereunto set my hand, the day and year above written. Register FORMS 10, II 503 10. PETITION FOR LETTERS OF ADMINISTRATION. 358. TO ■■ , ESQ., Register of Wills for the County of Philadelphia, in the Commonwealth of Pennsylvania. In the matter of the 'Administration of the Goods, Chattels, Rights and Credits of Deceased The Petition of respectfully showeth that was a Citizen of United States and a resident of Philadelphia County, State of Pennsylvania, and departed this life intestate at number in the County of and State of on the day of A. D. 19 — at o'clock M. That the said deceased left surviving the following named widow or husband, heirs and next of kin, to wit : — (Relationship) (Residence) and no other next of kin. The said intestate was possessed of Goods, Chattels, Rights and Credits, to the value of $ and of real estate (less in- cumbrance) to the value of $ as near as can be ascer- tained, situated as follows: : Therefore the said respectfully appl for Letters of Administration upon the Goods, Chattels, Rights and Credits, of which said — died possessed. Dated A. D. 19 Philadelphia County, .?.?.• named in the above application, being duly according to law say that the matters and things set forth in the foregoing Petition are true to the best of knowledge and belief. and subscribed before me, at Philadelphia, A. D. 19 -Deputy Register (Signatures) II. BOND AND OATH OF ADMINISTRATOR. 381-3. Know all men by these Presents, That we are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of dollars, to be paid to the said 504 FORMS II Commonwealth : To which payment well and truly to be made, we bind ourselves, jointly and severally, for and in the whole, our heirs, executors and administrators, and each and every of them, firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord One Thousand Nine Hundred and (i9-..-). , '■I^IM The Condition of this Obligation is, That if the above bounden Administrat of all and singular the Goods, Chattels and Credits of deceased, do make, or cause to be made, a true and perfect inventory of all and sing- ular the Goods, Chattels and Credits of the said deceased, which have come or shall come to the hands, possession or knowledge of the said Administrat , or into the hands and possession of any other person or persons, for and the same so made, do exhibit or cause to be exhibited into the Register's Office, in the County of Philadelphia, within thirty days from the date hereof, and the same Goods, Chattels and Credits, and all other the Goods, Chattels and Credits of the said deceased, at the time of death, which at any time after shall come to the hands and possession of the said Administrat — , or into the hands and possession of any other person or persons for do well and truly administer according to law. And further do make or cause to be made, a just and true account of said Administration at the expiration of six months from the date hereof, or when thereunto required by the Orphans' Court. And all the rest and residue of the said Goods, Chattels and Credits which shall be found remaining upon said Administrat account, the same being first examined and allowed by the Orphans' Court of the City and County of Philadelphia, shall deliver and pay unto such person or persons as the said Orphans' Court, by their decree or sentence pursuant to law, shall limit and appoint, and shall well and truly comply with the laws of this Commonwealth relating to Collateral Inheritances. And if it shall hereafter appear that any last Will and Testament was made by the said deceased, and the same shall be proved according to law, if the Said Adminis- trat— , being thereunto required, do surrender the said Letters of Administration into the Register's Office aforesaid. FORMS II, 12 505 then this obHgation to be void — otherwise to remain in full force. Signed, sealed and delivered in the presence of (Sig;natures) REGISTER'S OFFICE, City and County of Philadelphia, ss: A. D. 19 . Then personally came the within named and on solemn did depose, declare and say, That believe that the within- mentioned decedent on the — day of A. D. 19 — , at o'clock M., died without a will. That will, as the Administrat aforesaid well and truly administer the Goods, Chattels and Personal Estate, agreeably to law. That — will immediately publish for creditors once a week for six con- secutive weeks; and render into the Register's Office, within thirty days from this date, a just and true inventory and ap- praisement of the personal estate of said deceased, and additional inventories when necessary. Also, a just and true account, calcu- lation and reckoning of said administration at the expira- tion of six months from this date, or when thereunto legally required. That will well and truly comply with the provisions of the law relating to Collateral Inheritances. And also that And also that the whole of the Goods, Chattels, Rights and Credits of the personal estate died possessed of in the aggregate do not in value exceed the sum of Dollars to the best of knowledge and belief. and subscribed before me the day and year aforesaid, and letters of administration granted unto -Deputy Register (Signatures) 12. PETITION FOR LETTERS OF ADMINISTRATION C. T. A. 358-9. To , Esq., Register of Wills and ex-officio Clerk of the Orphans' Court for the City and County of Philadelphia, in the Commonwealth of Pennsylvania. In the matter of the Probate of the last Will and Testament of Deceased, 5o6 FORMS 12, 13 The Petition of respectfully showeth that the Execut named in the last Will and Testament of a Citizen of United States dated the day of A. D. i has That the petitioner the residuary, legatee and devisee named in the said Will. That said the testat was a resident of the County of Philadelphia and State of Pennsyl- vania, and departed this life at number in the County of and State of on ■ the day of A. D. 19 — , at o'clock M. The said testa was possessed of personal property to the value of $ and of real estate (less incumbrance) to the value of $ as near as can be ascertained, situated as follows : Therefore the said respectfully appl for Probate of the said last Will and Testament and for L,etters of Administration cum testamento annexo. Dated , A. D. 19 Philadelphia County, ij; named in the above application, being duly according to law, deposes and says that the matters and things set forth in the within Petition are true to the best of knowledge and belief. and subscribed before me, at '\ Philadelphia, A. D. 19 — >- -Deputy Register j (Signatures) 13. PETITION FOR LETTERS OF ADMINISTRATION D. B. N. C. T. A. 358, 360. To , Esq., Register cf Wills ond ex-officio Clerk of the Orphans' Court for the City and County of Philadelphia, in the Commonwealth of Pennsylvania. In the matter of granting Letters of Administration de bonis non cum testamento annexo on the Estate of Deceased. Citizen of United States. PETITION. The petition of respectfully showeth that the Execut of the last Will and Testament of deceased, whose Will was admitted to Pro- bate 1 , having departed this life, and that the tes- tat left Goods, Chattels, Rights and Credits, etc., unad- FORMS 13, 14 507 ministered by the said Execut to the value of $- and Real Estate as to which power of sale was given to the Executor to the value of $ Therefore, the said respectfully appl- for Letters of Administration de bonis non cum testamento annexo upon the Goods, Chattels, Rights and Credits, etc., of which the said — died possessed Dated A. D. 19 Philadelphia County, jj; {Residuary Legatee) named in the above application, being duly according to law, deposes and says that the matter and things set forth in the within Petition are true to the best of knowledge and belief. and subscribed before me, at^ Philadelphia A. D. 192 — > Deputy Register ] (Signatures) 14. BOND AND OATH OF ADMINISTRATOR C. T. A. 382-3. Know all Men by these Presents, That we are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of dollars, to be paid to the said Com- monwealth : To which payment well and truly to be made, we bind ourselves, jointly and severally, for and in the whole, our heirs, executors and administrators, and each and every of them, firmly by thesel presents. Sealed with our seals. Dated the day of in the year of our Lord One Thousand Nine Hundred and (19 .) The Condition of this Obligation is, That if the above bounden Administrat cum testamento annexo of all and singular the Goods, Chattels, and Credits of deceased, do immediately publish for Creditors, &c., and make, or cause to be made, a true and perfect inventory and inven- tories according to law, of all and singular the Goods, Chattels, and Credits of the said deceased, which shall have come, or shall come, to the hands, possession or knowledge of the said Ad- ministrat , as aforesaid, or unto the hands or possession of any other person or persons for find th? same so made 5o8 FORMS 14 to exhibit, or cause to be exhibited, in the Register's Office, in the County of Philadelphia, within thirty days from the date hereof, and the same Goods, Chattels, and Credits, and all other the Goods, Chattels, and Credits of the said deceased at the time of death, which at any time after shall come to the hands or possession of said Administrat as aforesaid, or unto the hands or possession of any other person or persons for do well and truly administer according to law. And further do make or cause to be made, a just and true account of said Administration, at the expiration of six months of the date hereof, or when thereunto legally required. And all the rest and residue of the said Goods, Chattels, and Credits, together with the proceeds of any sales of real estate the said Administrat may make under the will of decedent, which shall be found re- maining upon said Administrat account (the same being first examined and allowed by the Orphans' Court of the City and County of Philadelphia), shall deliver and pay unto such person or persons respectively as the said Orphans' Court, by their decree and sentence pursuant to the true intent and mean- ing of the last Will and Testament of the said deceased, and the law now in force in this Commonwealth, shall limit and appoint, and shall well and truly comply with the laws of this Common- wealth relating to Collateral Inheritances. And if it shall here- after appear that any later Will and Testament was made by the said deceased, and the same shall be proved according to law, if the said Administrat as aforesaid, being thereunto required, do surrender the said Letters of Administration in the Register's Office aforesaid, then this obligation is to be void — otherwise to be and remain in full force. Signed, sealed and delivered in the presence of (Signatures) REGISTER'S OFFICE, City and County of Philadelphia, jj.- A. D. 19 . Then personally came the within named and on solemn did depose, declare and say. That the within named decedent died on the day of A. D. 19 at o'clock and that will as Administrat aforesaid well and truly administer the said Estate, agreeably to the true intent and FORMS 14, IS, i6 509 meaning of the last Will and Testament of the said deceased in the law now in force in this Commonwealth. That will immediately publish for creditors once a week, for six successive weeks, and render unto the Register's Office, within thirty days of this date, a just and true inventory and appraisement of the personal estate of said deceased, and additional inventories when necessary. Also a just and true account, calculation and reckon- ing of said administration in six months from this date, or when thereunto legally required. That will well and truly comply with the provisions of law relating to Collateral Inheritance. And also that And also that the whole Estate died possessed of does not in value exceed the sum of Dollars to the best of knowledge and belief. and subscribed before the day and year aforesaid, and letters granted unto -Deputy Register (Signatures) 15. INVENTORY AND APPRAISEMENT. 392. City and County of Philadelphia, ^-.y; Personally came before me. Register of Wills, in and for the said City and County who upon their solemn did say that at the request of the they "well and truly and without prejudice or partiality, value and appraise the Goods and Chattels, Rights and Credits," which were of deceased, "and in all respects perform their duties as appraisers to the best of their skill and judgment." • and subscribed this day of 19 — , before me Deputy Register (Signatures) Inventory and appraisement of the Goods and Chattels, Rights and Credits, which were of late of Philadelphia, taken and made in conformity with the above deposition. 16. ADVERTISEMENT OF LETTERS. 391. Estate of deceased. Letters on the above Estate having been granted to the undersigned, all persons indebted to the said 5IO FORMS i6, 17, 18 Estate are requested to make payment, and those having claims to present the same, without delay, to Or to — Attorney 17. CERTIFICATE OF APPOINTMENT OF TRUSTEE WITH SECURITY. 584. State of Pennsylvania, Philadelphia County, ss: I certify, That at an Orphans' Court for the County afore- said, held at Philadelphia, on the day of A. D. one thousand nine hundred and before the Honor- able , President, and his Associate Judges of said Court. Sur-petition. The Court appointed Trustee for under the last will and testament of on security being entered in the sum of Dollars, which has been duly entered. Witness my hand and seal of said Court, this day of A. D. 191 Clerk of Orphans' Court. Esq. Attorney for Petitioner. 18. CERTIFICATE OF APPOINTMENT OF GUARD- IAN WITHOUT SECURITY. 599. State of Pennsylvania, Philadelphia County, ss: I Certify, That at an Orphans' Court for the County afore- said, held at Philadelphia, on the day of A. D. one thousand nine hundred and before the Honor- able , President, and his Associate Judges of said Court. Sur-petition. The Court appointed Guardian of minor child of FORMS 18, 19, 20 511 Witness my hand and seal of said Court, this day of A. D. 191 Asst. Clerk of Orphans' Court. Esq. Attorney for Petitioner. 19. CERTIFICATE OF APPOINTMENT OF GUARD- IAN WITH SECURITY. State of Pennsylvania, Philadelphia County, ss: I Certify, That at an Orphans' Court for the County afore- said, held at Philadelphia, on the day of A. D. one thousand nine hundred and — t before the Honor- able President, and his Associate Judges of said Court. Sur-petition. The Court appointed Guardian of minor child of on security being entered in the sum of Dollars, which has been duly entered Witness my hand and seal of said Court, this day of A. D. 191 ■ Asst. Clerk of Orphans' Court. -Esq. Attorney for Petitioner. 20. GUARDIAN'S INVENTORY. 606. In the Orphans' Court of Philadelphia County. Estate of Minor. Inventory. Commonwealth of Pennsylvania, City and County of Philadel- phia, ss: being duly says, that the above is a full, true and complete Inventory of the assets which have come into hands as a Guardian of the Estate of the said minor and subscribed before me this day of A. D. 19 Clerk O. C. 512 FORMS 21, 22 21. BOND OF GUARDIAN OF MINOR'S ESTATE. 605. Know all Men by these Presents, That we, Are Held and Firmly Bound unto the Commonwealth of Pennsyl- vania, in the sum of Dollars, lawful money, to be paid said Commonwealth of Pennsylvania, their certain Attor- ney or Assigns; to which payment, well and truly to be made, we bind ourselves and each of us, our Heirs, Executors and Administrators jointly and severally, firmly by these presents. Sealed with our seals — dated the day of in the year of our Lord one thousand nine hundred and Now, the Condition of this Obligation is such. That if the above-bounded Guardian of Minor Child of shall, at least once in every three years, and when- ever required by thei Court, render a just and true account to the Orphans' Court of Philadelphia County, according to the direc- tions of the Act of Assembly, in such case made and provided, of the, management of the property and estate of the said minor under care, and shall also deliver up the said prop- erty and estate, agreeably to the decree and order of said Court, or the directions of law, and shall in all respects faithfully per- form the duties of Guardian, then the above Obligation shall be void and of no effect, or else to remain in full force and virtue. Sealed and delivered in the presence of: (Signatures) (Seal) 22. BOND OF TRUSTEE APPOINTED. 388. Estate of Know all Men by these Presents, That We, Are Held and Firmly Bound unto the Commonwealth of Pennsylvania, in the sum of Dollars, lawful money, to be paid said Com- monwealth of Pennsylvania, their certain Attorney or Assigns; to which payment, well and truly to be made, we bind ourselves and each of us, our Heirs, Executors and Administrators jointly and severally, firmly by these presents. Sealed with our seals — dated the day of in the year of our Lord one thousand nine hundred and Whereas, At an Orphans' Court for the County of Philadel- phia, held the day of , in the year of our Lord one thousand nine hundred and FORMS 22, 23 513 Now, the Condition of the above Obligation is such, That if the above-bounden shall faithfully execute said trust and truly account for the property and estate under care and deliver up the same agreeably to the provisions of the Act of Assembly in such case made and provided, and according to the uses and trusts contained in the will of said decedent, then the said Obligation to be void, or otherwise to be and remain in full force and virtue. Sealed and delivered in the presence of: (Signatures) (Seal) 23. BOND OF FIDUCIARY ON SALE OF REAL ES- TATE. 192. Estate of Know all Men by these Presents, That We, Are Held and Firmly Bound unto the Commonwealth of Pennsyl- vania in the sum of Dollars, lawful money of the United States of America, to be paid to the said Commonwealth ; to which payment, well and truly to be made, we bind ourselves, our Heirs, Executors, Administrators, and every of them, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , in the year of our Lord one thousand nine hundred and Whereas, At an Orphans' Court for the County of Philadel- phia, held on the day of A. D. 192 , the Court the above-bounded of the Real Estate in the proceedings particularly specified, upon security being entered in the above-mentioned sum: Now, the Condition of the above Obligation is such. That if the above-bounden as aforesaid shall faithfully execute the trust and properly appropriate the pro- ceeds of such according to the trust and decree of the Court, and according to law, then this obligation to be void, or else to be and remain in full force and virtue. Sealed and delivered in the presence of: (Signatures) (Seal) 33 514 FORMS 24, 25 24. BOND OF FIDUCIARY FOR MISCELLANEOUS TRANSACTIONS WHERE SECURITY IS RE- QUIRED. 388. Estate of Knoiv all Men by these Presents, That We, Are Held and Firmly Bound unto the Commonwealth of Pennsyl- vania, in the sum of Dollars, lawful money, to be paid said Commonwealth of Pennsylvania, their certain Attor- ney or Assigns; to which payment, well and truly to be made wc bind ourselves and each of us, our Heirs, Executors and Administrators, jointly and severally, firmly by these presents. Sealed with our seals — dated the day of in the year of our Lord one thousand nine hundred and Whereas, At an Orphans' Court for the County of Philadel- phia, held the day of in the year of our Lord one thousand nine hundred and Now, the Condition of the above Obligation is such. That if the above-bounden shall truly account for and faith- fully appropriate the proceeds of the same, agreeably to the provisions of the Act of Assembly in such case made and pro- vided, and according to the uses and trusts contained in the will of said decedent, then the said Obligation to be void, or other- wise to be and remain in full force and virtue. Sealed and delivered in the presence of: (Signatures) (Seal) 25. BOND FOR COSTS ON APPEAL FROM ORPHANS' COURT. 163. In the matter of Estate of No. Term 191 — Know all Men by these Presents, That We, are held and firmly bound unto the Commonwealth of Pennsylvania. in the sum of Dollars, lawful money, to be paid said Commonwealth of Pennsylvania, its certain Attorney or As- signs; to which payment, well and truly to be made, we bind ourselves and each of us, our Heirs, Executors and Adminis- trators jointly and severally, firmly by these Presents. FORMS 25, 26, 27 515 Sealed with our seals, and dated the day of in the year of our Lord one thousand nine hundred and Whereas, ha appealed from the final decree of the Orphans' Court for the County of Philadelphia, made on the day of 191 Now, the Condition of the above Obligation is such. That, if the said shall prosecute appeal with effect, and pay all costs and damages awarded by the Appellate Court or legally chargeable against then the above Obligation to be void, or else to remain in full force and virtue. Sealed and delivered in the presence of: (Signatures) ( Seal ) 26. JUSTIFICATION BY INDIVIDUAL SURETIES. In the Orphans' Court of Philadelphia County. Estate of No. Term, 19 Security ordered in $ Asst. Clerk 0. C. being duly deposes and says : I. That he resides at and is by occupation II. That he is the owner of III. The deed of con- veyance of which to him is recorded in the office for recording deeds for said County in Deed Book ■ IV. That the title thereto is in his own name V. That the incum- brances upon said premises are VI. That the assessed value of said premises is VII. That after payment of all debts, engagements and liabilities, deponent believes that is worth not less than $ and subscribed before me this day of A. D. 19 Asst. Clerk 0. C. 19 The above security is approved. 27. CITATION. 116. Philadelphia County, ss: The Commonwealth of Pennsylvania To Greeting: We Command You, that, laying aside Si6 FORMS 27, 28 all business and excuses whatsoever, you, be and appear in your proper person before the Honorable the Judges of our Orphans' Court, at a Court to be held on Friday, the day of A. D. 192 , at 10 o'clock in the forenoon to show cause why and further abide the order of the Court in the premises. And hereof fail not. Witness the Honorable , President Judge of our said Court, at Philadelphia, the day of A. D. 192 Assistant Clerk O. C. Attorney for Petitioner. 28. PETITION FOR DISTRIBUTION OF INTES- TATE'S ESTATE. 552. In the Orphans' Court of Philadelphia County, Estate of deceased. The petition of — - respectfully represents : (o) The decedent died , intestate and letters of administration on estate were granted Decedent was (State whether decedent was married or unmarried; if mar- ried, whether a husband or wife survive and his or her name, and whether the decedent left children or issue of deceased children. ) (b) The names of all persons having any interest as heirs or next of kin (zvith the names of their parents, to shozv relation- ship if necessary) are as follows: Names Relationship Interest Of age or not (write yes or no) Name of Guardian or Committee, if any, and how appointed • All of said parties in interest are living. (State exceptions, if any, giving names and dates of death and the names of their executors or administrators, or the names of their issue as the same may be material.) (c) All parties having any interest have had notice of the filing of the account. FORMS 28/29 517 (Insert "actual," if such is the fact.) (d) The estate is subject to the payment of direct (collateral) inheritance tax to the State of Pennsylvania. (// taxable, state whether taxi has been paid.) (e) All creditors (and other persons who have complied with Rule II, sec. 7), of whose claims the accountant ha notice or knowledge, have received actual notice of this audit; the amounts of their claims and whether or not they are admitted to be correct are as follows: (// too many for the space, annex a list thereof, if no such claims, insert the word "none.") {If any creditor or other claimant has not received actual notice, that fact must be stated.) if) {Here insert a reference to all questions requiring adjudica- tion, and a statement of any material facts not already given. If none, insert the word "none." If any share has been assigned that fact should also be stated here.) Wherefore your petitioner asks that distribution of principal and income be awarded to the persons thereunto entitled as set forth in paragraph {b) hereof. And your petitioner will, etc. County of Philadelphia, .jj.- The above named petitioner being duly doth depose and say that the facts set forth in the foregoing petition are true to the best of h knowledge and belief. to and subscribed before me this day of 192- 29. PETITION FOR DISTRIBUTION UNDER A WILL. 552. In the Orphans' Court of Philadelphia County. Estate of deceased. The petition of respectfully represents : (a) The decedent died , having made last will duly probated , on which the present letters were granted , and leaving to survive . {State whether a husband or wife survived and, if so, his or her name, and whether he or she has elected to take under or against the will according to section 2^ of the Wills Act of i^iy, 5i8 FORMS 29 and if such an election has been made, state whether it has been filed and furnish a copy; state also whether or not the decedent left issue and their names, when material.) (b) The names of all legatees and the amounts and character of their legacies (except such as have been revoked) and the names ofl the residuary legatees and the nature of their interests are as follows: Names Relationship Interest Of age or not (write yes or no) Name of Guardian or Committee, if any, and how appointed All of said parties in interest are living. (State exceptions, if any, giving names and dates of death and the nam£s of their executors or administrators, or the names of their issue as the same may be material.) (c) All parties having either vested or contingent interests have had notice of the filing of the account. {Insert "actual" if sucH is the fact.) (d) The decedent did marry after the exectition of the will and codicils (if any), and there were children born to decedent thereafter. (Insert "not" and "no" if such are the facts and names and dates of after born children, if any.) (e) The estate is subject to the payment of direct or collateral inheritance tax to the State of Pennsylvania. (// taxable, state whether tax has been paid.) (/) All creditors (and other persons who have complied with Rule II, sec. 7), of whose claims the accountant ha notice or knowledge, have received actual notice of this audit; the amounts of their claims and whether or not they are admitted to be correct are as follows : (// too many for the space, annex a list thereof; if no such claims, intsert the word "none." If any creditor or other claimant has not received actual notice, that fact must be stated.) (9) (Here insert or attach as ani exhibit a copy of the parts of the will zvhich require interpretation by the Court, if any; a refer- ence to any questions requiring adjudication, and a statement of FORMS 29, 30 519 any material facts not already given. If none, insert the word "none." If any share has been assigned, or attached, state the fact.) Wherefore your petitioner asks that distribution be awarded, to the persons thereunto entitled and suggests that the distribu- tive shares of principal and income are as follows : (residuary shares being stated in proportions but not amounts.) (// the distribution of income is different from that of prin- cipal, state the fact.) And your petitioner will, etc. County of Philadelphia, .?.?; The above named petitioner being duly doth depose and say that the facts set forth in the) foregoing petition are true to the best of h knowledge and belief. to and subscribed before me this day of , 192 30. PETITION FOR DISTRIBUTION OF A TRUST ESTATE. 552. In the Orphans' Court of Philadelphia County. Estate of deceased. Sur trust for The petition of respectfully represents: (a) The decedent died having made his last will probated The trust arises under the will as follows : (^Set forth a copy of that part of the will under which the trust arises, and a reference to any prior adjudication of the Court thereon.) (b) The reason or purpose of the filing of the account is and the names of all persons having any interest, vested or contingent, in the trust, with the nature of their in- terests, are as follows : (If any are minors, state the fact and whether they have guard- ians, and how appointed.) All of said parties in interest have received actual notice of this audit. (State exceptions, if any.) (c) The fund now before the court is subject to the pay- ment of collateral inheritance tax to the State of Pennsylvania. 520 FORMS 30, 31 (// taxable, state whether tax has been paid.) (d) (Here insert a reference to all questions requiring adjudica- tion, and a statement of any material facts not already given. If none, insert the word "none." If any share has been assigned that fact should also be stated here. ) Wherefore your petitioner asks that distribution be awarded in the way and manner directed by the will and suggests that the balances of principal and income should be awarded re- spectively as follows : (awards being stated in proportions but not amounts.) And your petitioner will, etc. County of Philadelphia, ss: The above named petitioner being duly doth depose and say that the facts set forth in the foregoing petition are true to the best of h knowledge and belief. to and subscribed before me this day of , 192 31. AFFIDAVIT OF DEATH TESTATE. Deceased. State of Pennsylvania, Allegheny County, jj-; Personally came before me, Register of Wills, etc., in and for said County — — and upon solemn oath did say, that late of died on the day of A. D. 19 at M., to the best of knowledge and belief, testate. Sworn and subscribed before me this day of A. D. 19 Register. (Signatures) State of Pennsylvania, Allegheny County, jj; I, , Register of Wills, etc., in and for the County aforesaid, do hereby certify the above to be a true copy of the affidavit of death in the Estate of deceased, as the same is of record in Record of Deaths, Vol. page Witness my hand and seal of said office, this day of A. D. 19 Register. FORMS 32, 33. 34 521 32. CITATION TO PRODUCE WILL. 367. Commonwealth of Pennsylvania, Allegheny County, ss: To , at the instance of by h Attorney, You are hereby cited to be and appear before me, Register for the Probate of Wills, granting Letters of Ad- ministration, etc., in and for said County, on or before , the day of , 191 , at my office, at Pitts- burgh, then and there to produce for probate the paper writing alleged to be the last Will and Testament of , deceased. and alleged to be in your possession or control. Given under my hand and seal of ofifice, at Pittsburgh, this day of A. D. 191 Register. 33. SUBPOENA TO WITNESS. 268. Allegheny County, .?j." The Commonwealth of Pennsylvania, to Estate of Deceased. In re (Signatures) Greeting : We Command You, That, laying aside all business and ex- cuses whatsoever, you, and each of you, be and appear in your proper person before our Register of Wills at Pittsburgh, at our Register of Wills' Office, in and for the County aforesaid to testify all and singular these things which you shall know in the above entitled Estate now depending in our said Register's Office, then and there to be tried, and herein fail not, under the penalty of One Hundred Pounds. Witness, My hand and seal of office at Pittsburgh, this day of A. D. 19 Register of Wills. 34. COMMISSION AND DEPOSITION OF WIT- NESSES TO WILL. 269. State of Pennsylvania, Allegheny County, ss: To Esq., of Greeting: You are hereby authorized and empowered to cause to appear before you the subscribing witnesses 522 FORMS 34 to the instrument of writing hereto attached, purporting to be the last will and testament of deceased, and on oath or affirmation to propound to the following in- terrogatories : First. Are you a subscribing witness to this paper (exhibit- ing it), purporting to be the last will and testament of — deceased ? Second. Did you see the testat sign name at the end thereof? Third. Did you hear declare it to be last will and testament? Fourth. Do you believe at the time of so doing was of sound mind and memory ? Fifth. Was it at request and in presence that you subscribed your name as a witness thereto? And having so done, you are to reduce the answers of the said witness to writing and certify the same under your hand and seal, and forward the same to the Register's office at Pittsburgh, Pennsylvania. Given under my hand and seal of said office, at Pittsburgh, this day of A. D. 191 Register. To Esq., Register of Allegheny County, Pennsyl- vania : Pursuant to the authority vested in me by your commission, to me directed, for the taking of testimony in the matter of the probate of a certain instrument of writing, purporting to be the last will and testament of , deceased, I, , do hereby certify that I caused the witness in said commis- sion named, to appear before me at , on 191 , and having exhibited to — the said instrument of writing, did propound to the interrogatories annexed to said commission, to which the said witness having been first duly sworn, made answer as follows : answers to the first interrogatory : to the second interrogatory: ; to the third interrogatory: ; to the fourth interrogatory: ; to the fifth interrogatory ; (Witness sign here) ; answers to the first interrogatory: ; to the second interrogatory: ; to the third interrogatory: ; to the fourth FORMS 34, 35 523 interrogatory: ; to the fifth interrogatory: ; (Witness sign here.) And I do further certify that the foregoing answers of the said witness to the said interrogatories were by me reduced to writing in presence and were by said witness signed before me the day and year aforesaid. Witness my hand and seal this day of A. D. 191 Commissioner. Now, A. D. 191 , the testimony of the above named witnesses being sufficient, I do hereby admit the fore- going Will to Probate, and order the same to be recorded as such. Given under my hand the above date. Register. 35. PETITION FOR PROBATE AND LETTERS TES- TAMENTARY. 358. Application for Probate of Will of — late of deceased, and Grant of Letters Testamentary. Register's Office, Allegheny County, .jj; Before the Register of Allegheny County personally appeared who, being sworn, say that over twenty- one years of age and that the executor appointed in the last will and testament of deceased dated That said testator, being at the time a resident of Alle- gheny County, and a citizen of died at — — on A. D. at M., possessed of personal estate to the value of $— and of real estate (less en- cumbrances) to the value of $ as nearly as can be ascertained, situate in Act No. 25, of 1921, approved March 24, 1921, amends Clause (d) of Section 2, of the Act of June 7, 1917, P. L. 447 (the Fiduciaries Act), by adding thereto the following: "In the case of applications for letters testamentary, such applica- tions shall set forth whether the testator has married and whether any children have been born to such testator since the execution of the will ofifered for probate." 524 FORMS 35, 36 That said testa has married and children have been born to said testa since the execution of the will oflfered for probate. That deponent (whose P. O. address is ) resident of Pennsylvania, and respectfully petition the Register to admit said will to probate, and to grant letters testamentary thereon to Sworn and subscribed before me^ — A. D., 192 — y Register. J (Signatures) Allegheny County, ss: I, do swear that, as I verily believe, the above named died on the day of A. D. at ]\f ■ and do further swear that as the executor of the last will and testament of said decedent will well and truly administer the goods and chattels, rights and credits of said decedent according to law, and also will diligently and faithfully regard and well and truly comply with the provisions of the law relating to inheritance tax. Sworn and subscribed before me this" day of — , A. D. 192 , and letters testamentary granted unto R egister . ^ (Signatures) 36. OATH OF SUBSCRIBING WITNESSES TO WILL. 215- State of Pennsylvania, Allegheny County, j.?.' Be it known, That on the ^ day of A. D. 19 before me, , Register of Wills, etc., in and for the County aforesaid, came the subscribing witnesses to the foregoing instrument of writing, purporting to be the last will and testament of deceased, and on their solemn oath did depose and say that they were present and did see and hear the testa therein named, sign seal, publish and declare the same as and for last Will and Testament, and at the time of so doing was of sound mind and memory, to the best of FORMS 36, 37, 38 525 knowledge and belief, and at request and in presence subscribed names as witnesses hereunto Sworn and subscribed before me the above date. -Register. \ (Signatures) Now, A. D. 19 , the testimony of the above named witnesses being sufficient, I do hereby admit the fore- going will to probate, and order the same to be recorded as such Given under my hand the above date. Register. 37. OATH TO DECEDENT'S SIGNATURE WHERE NO WITNESSES. 215. State of Pennsylvania, Allegheny County, ss: Be it Knozvn, That on the day of A. D. 19 before me, , Register of Wills, etc., in and for the County aforesaid, came and on solemn oath did depose and say that he w well acquainted with the foregoing instrument of writing purporting to be the last Will and Testament of and fami- liar with — handwriting and signature, and that the sig- nature of to the said writing is in own proper handwriting, as — verily believe. Sworn and subscribed before me ■^ the above date. > Register. \ Now, A. D. ig , the testimony of the above named witnesses being sufficient, I do hereby admit the fore- going Will to Probate, and order the same to be recorded as such. Given under my hand the above date. Register. 38. CITATION TO SHOW CAUSE WHY LETTERS SHOULD NOT ISSUE. Allegheny County, jj.- Commonwealth of Pennsylvania. To at the instance of by his Attorney You are hereby cited to be and appear before me, , 526 FORMS 38, 39, 40 Register of the Probate of Wills, granting Letters of Administra- tion, &c., in and for said County, on or before the day of 19 , at my office, at Pittsburgh, then and there to take out Letters of Administration on the estate of said deceased, or show cause, if any, why said letters should not issue to said or some other fit person. Given under my hand and seal of office, at Pittsburgh, this day of — A. D. 19 Register. 39. RENUNCIATION OF RIGHT TO ADMINISTER. 357- Estate of Deceased. The undersigned and heirs of late of deceased, hereby renounce right to administer on said estate and respectfully ask that Letters be issued to Signed in presence of : (Signatures) 40. PETITION FOR LETTERS OF ADMINISTRA- TION. 358. Application for Letters of Administration on the Estate of late of deceased. Register's Office, Allegheny County, j.?.' Before the Register of Allegheny County, personally appeared who, being sworn, says that being at the time a resident of Allegheny County, and a citizen of died intestate, at on A. D. at M., possessed of personal estate to the value of $ and of real estate (less encumbrances) to the value of $ as nearly as can be ascertained, situate in That decedent's heirs and next of kin are as follows : Relationship Residence That deponent, whose P. O. address is is a citizen of the United States and a resident of Pennsylvania, and re- spectfully applies for Letters of Administration upon the Estate of said decedent. Sworn and subscribed before me "] A. D. 19 *- 4 Register.) (Signatures) FORMS 40, 41 527 Register's Office, Allegheny County, jj; 192 , before me, the Register, personally appeared about to become a surety in the sum of $ on the administration bond in the above entitled estate, who, being sworn, says that he resides at , Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in Allegheny County, worth, above, encumbrances, $ and upward ; and that he is worth the| amount expressed in said bond over and above his just debts and liabilities. And on the same day there also personally appeared likewise about to become a surety on said administration bond, who, being sworn, says that he resides at Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in Allegheny County, worth above incumbrances, $ and upward, and that he is worth the amount expressed in said bond, over and above his just debts and liabilities. Sworn and subscribed before me^ the day and year aforesaid. ^ Register. J (Signatures) 41. BOND AND OATH OF ADMINISTRATOR. 381-3. Estate! of late of deceased. Know all Men by these Presents, That we all of Allegheny County, Pennsylvania, are held and firmly bound unto the Commonwealth of Pennsylvania in the sum of dollars, to be paid to the said Commonwealth, to which payment, well and truly to be made, we do bind ourselves, jointly and severally, for and in the whole, our heirs, executors and administrators and each and every of them, firmly by these presents. Sealed with our seals and dated the day of A. D. one thousand nine hundred and The Condition of this Obligation is. That if the above bounden administrator of all and singular the goods, chattels and credits of deceased, do make or cause to be made a true and perfect inventory of all and singular the goods, chattels 528 FORMS 41 and credits of said deceased which have come or shall come to the hands, possession or knowledge of the said administrator or into the hands and possession of any other person or persons for said administrator and the same, so made, do exhibit, or cause to be exhibited, into the Register's Office, in the County of Alle- gheny, within thirty days from the date hereof : and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased at the time of decedent's death, which at any time after shall come to the hands or possession of the said administrator or into the hands and possession of any other person or persons for said administrator do well and truly ad- minister according to law ; and further, do make or cause to be made a just and true account of said administration in one year from the! date hereof, or when thereunto legally required, and all the rest and residue of the said goods, chattels and credits which shall be found remaining upon the said administrator's account, the same being first examined and allowed by the Orphans' Court of Allegheny County, shall deliver and pay unto such person or persons as the said Orphans' Court, by their decree or sentence pursuant to law, shall limit and appoint, and shall well and truly comply with the laws of this Commonwealth relating to collateral inheritance ; and if it shall hereafter appear that any last Will and Testament was made by' the said deceased, and the same shall be proved according to law, if the said administrator being there- unto required to surrender the said letters of administration into the Register's Office aforesaid, then this obligation to be void, otherwise to remain in full force. Sealed and delivered in the presence of . (Signatures) ( Seal ) Allegheny County, ji-; I, being duly sworn, do say that the above named decedent, died intestate on the day of A. D. 19 at M., as I verily believe. And I do fur- ther swear that, as the administrator of the estate of said dece- dent, I, will well and truly administer the goods and chattels, rights and credits of said deceased, according to law, and FORMS 41, 42 529 also will diligently and faithfully regard and well and truly com- ply with the provisions of the law relating to collateral inher- itances. Sworn and subscribed before me this^ day of 19 and letters of administration granted unto . Register. >- 42. PETITION FOR LETTERS OF ADMINISTRATION C. T. A. 358-9. In Re- Probate of the Will of late of deceased, and Grant Letters of Administration, cum testamento annexo. Register's Office, Allegheny County, .jj; Before the Register of Allegheny County, personally appeared who, being duly sworn, says that being at the tim^ a resident of , Allegheny County, and a citizen of , died at , on , A. D. , at M., having first made last will and testament, dated , wherein he appointed executor, which ex- ecutor has since . That testator was possessed of personal estate to the value of $ , and of real estate (less encumbrances) to the value of $ , as nearly as can be ascertained, situate in That testator's heirs and next of kin are as follows : Relationship Residence That said testa has married and children have been born to said testa since the execution of the Will ofifered for probate. That deponent, whose P. O. address is is a resident of Pennsylvania, and respectfully petitions the Register to admit said will to probate, and to grant letters of administration cum testamento annexo on said estate to Sworn and subscribed before me \ A. D. 192 > -Register. Allegheny County, ss : I, do swear that, as I verily believe, the above named died on the day of A. D. at 34 53° FORMS 42, 43 M. ; and I do further swear that as the Administrator cum testamento annexo of the estate of the said decedent will well and truly administer the goods and chattels, rights and credits of said deceased according to law, and also will diligently and faithfully regard and well and truly comply with the provi- sions of the law relating to inheritance tax. Sworn and subscribed before me this day of A. D. 192 and letters of Administration cum testa- mento annexo granted unto -Register. (Signature.; 43. OATH OF ADMINISTRATOR C. T. A. 382. Allegheny County, ss: I, do swear that, as I verily believe, the above named died on the day of A. D. at M. ; and I do further swear that, as the administrator cum testamento annexo of the estate of the said decedent will well and truly administer the goods and chattels, rights and credits of said deceased, according to law, and also will diligently and faithfully regard and well and truly comply with the provi- sions of the law relating to collateral inheritances. Sworn and subscribed before me this day of A. D. 19 , and letters of administration cum testamento annexo granted unto (Signature.) Register. State of Pennsylvania, Allegheny County, .y.y.- I, William Conner, Register of Wills in and for said County, do hereby certify the foregoing to be a true and correct copy of the Affidavit of Death and of the Oath of office of the Adminis trator c. t. a. in the estate of deceased, so full and entire as the same remain of record in my office; and that Letters of Administration c. t. a. on said estate were granted unto on the day of A. D. Given under my hand and seal of office, at Pittsburgh, this day of A. D. 19 — — Register. FORMS 44 531 44- BOND OF ADMINISTRATOR C. T. A. 383. Know all Men by These Presents, That we all of Allegheny County, Pennsylvania, are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of Dollars, to be paid to the said Commonwealth, to which payment, well and truly to be made, we do bind ourselves, jointly and sev- erally for and in the whole, our heirs, executors and adminis- trators, and each and every of them, firmly by these presents. Sealed with oun seals and dated the day of A. D. nineteen hundred and The Condition of this Obligation is. That if the above bounden administrator cum testamento annexo of all and singular the goods, chattels and credits of deceased, do make, or caused to be made, a true and perfect inventory of all and singular the goods, chattels and credits of said deceased, which have come or shall come to the hands, possession or knowl- edgt of the said administrator or into the hands and possession of any other person or persons for said administrator , and the same so made do exhibit, or cause to be exhibited, into the Reg- ister's Office, in the County of Allegheny, within thirty days from the date hereof ; and the same goods, chattels and credits, and all other goods, chattels and credits of the said deceased at the time of death, which at any time after shall come to the hands or pos- session of the Administrator or in the hands and posses- sion of any other person or persons for said administrator, do well and truly administer according to law ; and further, do make, or cause to be made, a just and true account of said administra- tion, in six months from the date hereof, or when thereunto legally required, and all the rest and residue of the said goods, chattels and credits, together with the proceeds of any sales of real estate the said administrator may make under the will of decedent, which shall be found remaining upon the said admin- istrator's account, the same being first examined and allowed by the Orphans' Court of Allegheny County, shall deliver and pay unto such person or persons as the said Orphans" Court, by their decree or sentence, pursuant to law, shall limit and appoint, and shall well and truly comply with the laws of this Commonwealth relating to inheritance tax ; and if it shall hereafter appear that any Will and Testament was made by the said deceased, and the same shall be approved according to law, if the said adminis- 532 FORMS 44, 45 trator , being thereto required, do surrender the said letters of administration into the Register's Office aforesaid, then this obli- gation to be void, otherwise to remain in full force. Sealed and delivered in the presence of : (Signatures.) Register's Office, Allegheny County, ss: 19 , before the Register personally appeared - about to become a surety in the sum of , on the admin- istration bond in the above-entitled estate, who, being sworn, says that he resides at , Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in County, worth, above incumbrances, $ and upward, and that he is worth the amount expressed in said bond over and above his just debts and liabilities. And on the same day there also personally appeared , likewise about to become a surety on said administration bond, who, being sworn, says that he resides at , Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in , Allegheny County, worth, above incumbrances, $ and upward, and that he is worth the amount expressed in said bond over and above his just debts and Habilities. Sworn and subscribed before me the day ^ and year aforesaid. > -Register. J (Signatures.) 45. BOND OF NON-RESIDENT EXECUTOR. 384. Know all Men by these Presents, That we all of Allegheny County, Pennsylvania, are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of Dollars, to be paid to the said Commowealth, to which payment well and truly to be made, we do bind ourselves, jointly and sev- erally, for and in the whole, our heirs, executors and adminis- trators, and each and every of them, firmly by these presents. Sealed with our seals, and dated the day of A. D. nineteen hundred and FORMS 45 533 The Condition of the Obligation is, That if the said executor of the last will and testament of deceased, shall make a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, being within this Commonwealth, which have come or shall come to his hands, pos- session or knowledge, or into the hands and possession of any person for him, and the same so made to exhibit into the office of the Register of the County of Allegheny within thirty days from the date hereof, and the same goods do well and truly administer according to law, and make a just and true account of all his actings and doings therein, in six months from the date hereof, or when thereunto lawfully required, and shall well and truly comply with the laws of this Common- wealth relating to Collateral Inheritances and in all other respects with the laws of this Commonwealth relating to his duty as Executor, then this obligation to be void, otherwise of force and effect. Sealed and delivered in the presence of : ( Seal) (Signatures.) Register's Office, Allegheny County, ss: 19 , before the Register personally appeared , about to become a surety in the sum of , on the admin- istration bond in the above-entitled estate, who, being sworn, says that he resides at , Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in County, worth, above incumbrances, $ and upward, and that he is worth the amount expressed in said bond over and above his just debts and liabilities. And on the same day there also personally appeared , likewise about to become a surety on said administration bond, who, being sworn, says that he resides at , Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in , Allegheny County, worth, above incumbrances, 534 FORMS 45, 46, 47 $ and upward, and that he is worth the amount expressed in said bond over and above his just debts and liabilities. Sworn and subscribed before me the day ~^ and year aforesaid. ^ — Register, j (Signatures.) 46. PETITON FOR PROBATE OF FOREIGN WILL. 266. In Re Probate of the Authenticated Copy of the Will of late of deceased, Register's Office, Allegheny County, ss: Before the Register of Allegheny County, personally appeared who, being duly sworn, says that being at the time a resident of County and citizen of died at on A. D. at M., having first made last will and testament, dated That testator was possessed of personal estate to the value of -, and of real estate (less encumbrances) to the value of $ as nearly as can be ascertained, situate in That testator's heirs and next of kin are as follows : Relationship — Residence That deponent, whose P. O. address is is a resident of Pennsylvania, and respectfully petitions the Register to admit said will to probate. Sworn and subscribed before me ^ A. D., 19 K. Register. J (Signature.) 47. CERTIFICATE OF FILING FOREIGN WILL. 592. State of Pennsylvania, Allegheny County, .yj; I, , Register of Wills, etc., in and for said County do hereby certify that pursuant to the provisions and re- quirements of an Act of Assembly, entitled, "An Act relating to Foreign Executors, Administrators, Guardians and Representa- tives of Decedents and Wards," approved April 8th, 1872 (P. L. 44), amended June 13, 191 1, A. D. (P. L. 892); amended FORMS 47, 48 535 June 7, 191 7 (P. L. 525) Executors of the last will and testament of deceased filed in this office a duly authen- ticated copy of the last will and testament of the said late of deceased, together with affidavit of Executor required by Act of June 7, 19 17, Witness my hand and seal of said office, at Pittsburgh, Pa., this day of A. D. 19 Register. 48. PETITION FOR ANCILLARY LETTERS OF AD- MINISTRATION ON FOREIGN WILL. 592. In Re Probate of the Authenticated Copy of the Will of- late of 1 deceased and Grant of Letters of Administration, cum testamento annexo. Register's Office, Allegheny County, ss: Before the Register of Allegheny County personally appeared who, being duly sworn, says that being at the time a resident of County and citizen of died at on A. D. at M., having first made last will and testament, dated wherein he appointed executor, which executor has since That testator was possessed of personal estate to the value of $ and of real estate (less encumbrances) to the value of $ , as nearly as can be ascertained, situate in That testator's heirs and next of kin are as follows : Relationship Residence That deponent, whose P. O. address is is a resident of Pennsylvania, and respectfully petitions the Register to admit said authenticated will to probate, and to grant ancillary letters of administration cum testamento annexo on said estate to Sworn and subscribed before me ^ A. D. 19 -Register. J ( Signature. ) Allegheny County, ss: I, do swear that, as I verily believe, the above named died on the day of A. D. at M., and I do further swear that, as the administrator cum testamento annexo, of the estate of the said decedent will well and truly administer the goods and chattels, rights and 536 FORMS 48, 49- So credits of said deceased, according to law, and also will diligently and faithfully regard and well and truly comply with the provi- sions of the law relating to inheritance tax. Sworn and subscribed before me this day of A. D. 19 and ancillary letters of administration cum testamento annexo granted unto -Register. (Signature.) 49. CERTIFICATE OF FILING FOREIGN LETTERS OF ADMINISTRATION. 592. State of Pennsylvania, Allegheny County, j.?.- I, , Register of Wills, etc., in and for said County do hereby certify that pursuant to the provisions and re- quirements of an Act of Assembly, entitled, "An Act relating to Foreign Executors, Administrators, Guardians and Representa- tives of Decedents and Wards," approved April 8th, 1872 (P. L. 44), amended June 13, 191 1, A. D. (P. L. 892) ; amended June 7, 1917 (P. L. 525) Administrat of the estate of deceased, filed in this office a duly authenticated copy of letters of administration issued on the estate of said ' late of deceased, together with affidavit of Adminis- trator required by Act of June 7, 191 7 Witness my hand and seal of said office, at Pittsburgh, Pa., this day of A. D. 19 Register. 50. APPEAL FROM THE REGISTER. 281. State of Pennsylvania, Allegheny County, .yj; To the Register of Wills of Allegheny County. Estate of deceased. The undersigned hereby appeals to the Orphans' Court of said County from the decision of the Register of Wills in the above estate, admitting to probate a certain paper writing, dated the day of 19— as the last will and testament of said decedent, and granting letters testamentary thereon. (Signature.) FORMS so, SI 537 being duly sworn, doth depose and say that the above mentioned appeal is not intended for delay. Sworn to and subscribed before me the day of A. D. 19 ■ Register. And now, security in the above appeal is fixed in the sum of $ — — Register. And now, 19 Bond of Appellant , with sureties in the sum of Dollars, filed and approved. Register. SI. BOND OF CAVEATOR. 281. Know All Men by these Presents, That we, all of Allegheny County, Pennsylvania, are held and firmly bound unto the Commonwealth of Pennsylvania, in the sum of Dollars, td be paid to the said Commonwealth, to which payment well and truly to be made, we do bind ourselves jointly and sev- erally, for and in the whole, our heirs, executors and adminis- trators, and each and every of them, firmly by these presents. Sealed with our seals, and dated the day of A. D. nineteen hundred and Whereas, the said on the day of A. D. 191 filed in the office of the Register of Wills of Alle- gheny County, Pennsylvania, a Caveat against the admission to probate of any paper writing alleged to be the last Will and Test- ament of deceased, or the granting of Letters on the estate of deceased, Now the Condition of this Obligation is. That if the said Caveator shall pay any and all costs which may be occasioned by reason of such caveat, and which may be decreed by such Register of Wills, or by the Orphans' Court of Allegheny County, to be paid by such Caveator, then this obligation to be void, otherwise to remain in full force and virtue. Sealed and delivered in the presence of : (Seal) (Signatures.) Register's Office, Allegheny County, .?.?.- 191 , before the Register personally appeared about to become a surety in the sum of on the Caveator's 538 FORMS Sh 52 bond in the above-entitled estate, who, being sworn, says that he resides at Allegheny County, and is by occupation a that he is the owneri of real estate, the title to which is in his own name and duly recorded, situate in Allegheny County, worth, above incumbrances, $ and upward, and that he is worth the amount expressed in said bond over and above his just debts and liabilities. And on the same day there also personally appeared likewise about to become a surety on said Caveator's bond, who, being sworn, says that he resides at Allegheny County, and is by occupation a ; that he is the owner of real estate, the title to which is in his own name and duly recorded, situate in Allegheny County, worth, above incumbrances, $ and upward, and that he is worth the amount expressed in said bond over and above his just debts and liabilities. Sworn and subscribed before me the day "^ and year aforesaid. > Register. J ( Signatures. ) 52. INVENTORY AND APPRAISEMENT. 392. State of Pennsylvania, County of Allegheny, ss: Personally came before me in and for said County, the following named persons, viz : who, being duly sworn, do depose and say that they, at the request of will well and truly and without prejudice or partiality, value and appraise the goods and chattels, rights and credits, which were of deceased and in all respects perform their duties as appraisers to the best of their skill and judgment. Sworn and subscribed before me this day of 19 (Signatures.) Inventory and Appraisement of the goods and chattels, rights and credits, which were of late of taken and made in conformity with the above deposition. (Note. — Appraisers should sign iimcntory at the end thereof.) Dollars Cents. FORMS 53, 54 539 53. AFFIDAVIT OF NON-RESIDENT EXECUTOR AS TO DEBTS AND TRANSFER OF SECURI- TIES. 592. In Re Estate of Deceased. State of County of j.f; Before me, the undersigned authority, a Notary Public, in and for the County and State aforesaid, personally appeared who, being sworn according to law, deposes and says that he is the executor of the estate of Deceased, late of that the said decedent is not indebted to any person in the Com- monwealth of Pennsylvania, and the proposed transfer, assign- ment, receipt or entry of satisfaction is not made for the purpose of removing any of the assets of said decedent beyond the reach of any of the creditors in the Commonwealth of Pennsylvania. (Seal) (Signature.) Sworn to and subscribed before me, the day of A. D. 191 Notary Public. 54. PETITION FOR DISTRIBUTION OF INTES- TATE'S ESTATE. 552. In the Orphans' Court of Allegheny County, State of Pennsyl- vania : Estate of Deceased. The Statement of respectfully represents : (a) The decedent died 192 intestate, and at that time was domiciled in and resided in and letters of administration on estate (a copy being hereto at- tached marked Exhibit "A") were granted 192 and on the day of 192 bond in the sum of $ was approved. Letters were advertised in the and Pittsburgh Legal Journal, the last publication having been made on the day of and the day of 192 re- spectively, and proofs of publication marked Exhibit "B" are attached. An inventory, a copy of which is hereto attached and marked Exhibit "C" was filed on the day of 192 — (// any additional assets have been received since filing the account state the amount and nature thereof, also interest on balances to date of first day of audit.) 540 FORMS 54 (b) Exemption claimed by widow or children. (c) All creditors of whose claims the accountant ha notice or knowledge before filing the account, have received actual notice of the filing of the account ; the amounts of these claims, together with those received since filing the account, and whether they are admitted to be correct are as follows : Name Amount (Give preferred claims first and mark P. If claims too many for the space, annex a list thereof marked Exhibit "D;" if no such claims, insert the word "none." If any creditor or other claimant has not received actual notice, that mu>st be stated. If proceeds of sale of land for payment of debts, attach List of Liens, marked Exhibit "E.") (d) The estate is subject to the payment of direct collateral inheritance tax to the State of Pennsylvania, and is subject to the payment of a Federal Inheritance Tax. (// taxable, state whether tax has been paid.) (e) Decedent was (State whether decedent was married; if married, whether a husband ort wife survived, and his or her name, and whether the marriage relationship was m,aintained, and whether the decedent left children or issue of deceased children and whether there has been any marriage settlement .) (f) The names of all persons having any interest as heirs, or next of kin, including adopted children (with the names of their parents to show relationship if necessary), are as follows: Names Next of kin or heirs Of age or not (write yes or no) Name of guardian, trustee or com- mittee, if any, and give reference to number and term of appoint- ment Amount of bond $ (^f) All of said parties in interest are living. (State exceptions, if any, giving names and dates of death, and the names of their executors or administrators, or the names of their issue, as the same may be material, and names of parties, if any, in the military service who would be adversely affected by a decree of distribution.) (h) All parties, other than creditors, including the represen- tatives of persons who are not sui juris, having any interest have had notice of the filing of the account. FORMS 54, 55 S41 (Insert "actual," if such is the fact.) (0 (State appraised value of land set apart under Sec. 2-0 of the Intestate Act of igiy, amended by Act of 1917, P. L. 755, if any.) (;■) (Insert a reference to all questions requiring adjudication, and a statement of any material facts not already given. If none, insert the word "none.'' State if any advancement or settlement (see Sec. 22, Intestate Act), was made by decedent, or distribu- tion by accountant, or if any share has been assigned or attached.) (k) Kind of property to be distributed and elections to take in kind, if any. (State the \kind of property of which the balance consists; if not cash, state whether there has been an election to take in kind, and if so, attach copy marked Exhibit "F.") (I) Contracts, assignments and other writings (^Attach original or certified copies of contracts, assignments, and other writings each separately marked as an Exhibit, begin- ning with "G.") Wherefore, your accountant asks that distribution of the bal- ance of principal and income be awarded to the persons thereunto entitled as set forth in paragraphs (c), (d), (f) and (g) hereof. And your accountant will, etc. Administrator or Administratrix. (Signatures.) 55. PETITION FOR DISTRIBUTION UNDER A WILL. 552. In the Orphans' Court of Allegheny County, State of Pennsyl- vania : Estate of Deceased. The statement of respectfully represents : (a) The decedent died 192 testate, and at that time was domiciled in and resided in and let- ters testamentary on h estate (a copy of same and the will and codicil being hereto attached marked Exhibit "A") were granted 192 and on the < day of 192 bond (if any) in the sum of $ was approved. 542 FORMS 55 Letters were advertised in the and Pittsburgh Legal Journal, the last publication having been made on the day of and the day of 192 re- spectively, and proofs of publication marked Exhibit "B" are attached. An inventory, a copy being attached and marked Ex- hibit "C," was filed on the day of 192 (// any additional assets have been received since filing account state the amount and nature thereof, also interest on balances to date of first day of audit.) (b) Exemption claimed by widow or children. (c) All creditors of whose claims the account ha notice or knowledge before filing the account, have received actual notice of the filing of the account ; the amounts of these claims, together with those received since filing the account, and whether they are admitted to be correct are as follows : Name Amount (Give preferred claims first and mark P. If claims too many for the space, annex a list thereof marked Exhibit "D ;" if no such claims, insert the word "none." If any creditor or other claimant has not received actual notice, that fact must be stated. If proceeds of sale\ of land for payment of debts, attach List of Liens, marked Exhibit "E") (d) The estate is subject to the payment of direct collateral inheritance tax to the State of Pennsylvania, and is subject to the payment of a Federal Inheritance Tax. (// taxable, state whether tax has been paid.) {e) Decedent was {Did husband or wife survive? Has there been any marriage settlement? Was the family relation maintained? If there is an election comply with Sec. 23 of Wills Act of 1917, and attach copy marked Exhibit "P.") (/) (Were children born after date of will, or codicil if any? If so, give names and date of birth.) (9) (Is there intestacy as to any part of the estate? If so, give the facts.) (h) The names of all persons having interest as legatees, heirs, next of kin, including adopted children, and devisees (with the FORMS 56 543 names of their parents to show relationship if necessary), are as follows : Names Legatees, next of kin, heirs or devisees Of age or not (write yes or no) Name of guardian, trustee or committee, if any, and give reference to number and term of appointment Amount of bond $ (i) All of said parties in interest are hving. {State exceptions, if any, giving names and dates of death, and the names of their executors or administrators, or the names of their issue, as the same mxiy be material, and names of parties, if any, in the military service ivho wotdd be adversely affected by a decree of distribution.) (/) All parties, other than creditors, including the represen-- tatives of persons who are not sui juris, having either a vested or contingent interest, have had notice of the filing of the account. {Insert "acttial," if such is the fact.) {k) {Refer to any questions requiring adjudication and a statement of any material facts not already given. If none, insert the word "none." {I) Kind of property to be, distributed and elections to take in kind if any. {State the kind of property of which the balance consists. If it is not cash, state whether there has been an election to take in kind. If so, attach original or copy marked Br. "G.") (w) {State if any distribution has been made and if any share has been assigned or attached. If advancements are charged in the\ will are they charged in the account. If there is partial intestacy, has any settlement been made? See Sec. 22, Intestate Act. (w) Contracts, assignments and other writings. {Insert schedule of contracts, assignments and other writings, and attach originals of copies thereof certified by counsel and mark each as art Exhibit, beginning with "H.") Wherefore, your accountant ask that distribution of the balance of principal and income be awarded to the persons there- unto entitled as set forth in paragraphs (c), (d), {h) and (t) hereof. Executor or Executrix. (Signatures.) 544 FORMS S6 S6. PETITION FOR CITATION TO SHOW CAUSE WHY AN INQUEST IN PARTITION SHOULD NOT BE GRANTED. 4. In the Orphans' Court of Philadelphia County. In Re Estate of William Doe, Deceased. Petition for citation to show cause why an inquest in partition should not be granted for premises street, Philadel- phia. To the Honorable, the Judges of the Said Court: The petition of Catherine Doe, Mabel Doe and Ida Doe re- spectfully represents : 1. That William Doe died a resident of Philadelphia County, on the day of having first made, published and declared his last will and testament dated a copy of which is annexed hereto, duly probated on in the ofHce of the Register of Wills of Philadelphia County, and recorded in Will Book No. page 2. The said decedent died seized of (describe premises) being the same premises that and wife by indenture bearing date the day of and recorded at Philadelphia, in Deed Book at page granted and conveyed unto the said William Doe, in fee, being known as premises Street, Philadelphia. 3. After* providing for a life estate to his wife, Mary Doe, the decedent directed that if the said premises Street, in the City of Philadelphia, should be sold out of the proceeds thereof, Mary Jones should be paid $100, and the residue should be divided equally among his sons, James Doe, William Doe, and his daughter, Kate Roe. 4. By proceedings in your Honorable Court a decree was en- tered on the day of March whereby an exemption of $300 was charged on said premises in favor of Mary Doe, the widow. The said Mary Dbe died a resident of Philadelphia County, on 5. Mary Jones intermarried with one Peter Poe, and is living and of full age and resides at Street, Philadelphia. 6. James Doe died intestate, a resident of Philadelphia County, on the day of leaving to survive him a widow, Anna Doe, and one child, a daughter, Anna Smith, both living and of full age and residing at Street, Philadelphia. FORMS 56 545 7. William Doe died on the day of intestate, leaving to survive him a widow, Catherine Doe, and two children, to wit: Mabel Doe and Ida Doe, all living and of full age and your petitioners herein and all residing in Philadelphia. 8. Kate Roe died a resident of Philadelphia County, on the day of intestate, leaving to survive her, no hus- band or issue and leaving as her present heirs and next of kin, Anna Smith, a daughter of James Doe, above set forth, and the widow and children of William Doe, above set forth. Wherefore, title to the above premises is now vested as follows : Anna Doe, three-eighteenths; Anna Smith, six-eighteenths, Catherine Doe, three-eighteenths; Mabel Doe, three-eighteenths; Ida Doe, three-eighteenths, so that your petitioners collectively are seized of one-half of the said premises, all subject, however, to the legacy of $100, to Mary Jones. That no partition or valuation of the said real estate has been had and your petitioners therefore pray your Honorable Court to grant a citation to the parties in interest to show cause why an inquest should not be awarded to make partition or valuation of the said real estate. And your petitioners will ever pray, etc. (Signatures.) State of Pennsylvania, County of Philadelphia, ss : Catherine Doe, Mabel Doe, and Ida Doe, being duly sworn ac- cording to law depose and say that they are the petitioners herein and that the facts set forth in the foregoing petition are true and correct to the best of their knowledge, information and belief. Sworn to and subscribed before me this day of 1921. (Signature.) In the Orphans' Court of Philadelphia County. Term, , No. . In re Estate of William Doe, Deceased. DECREE. And Now, To wit, this day of , 1921, upon con- sideration of the annexed petition and on motion of , at- torneys for the petitioners, it is hereby ordered and decreed, that the prayer thereof be granted and that a citation be issued directed 35 546 FORMS 56, 57 to Anna Doe, Anna Smith and Mary Jones, to show cause why an inquest should not be awarded to make partition or valuation of premises (description), being known as Street, Phila- delphia. Returnable sec. leg. By the Court : 57. PETITION FOR CITATION TO SHOW CAUSE WHY GUARDIAN AD LITEM SHOULD NOT BE APPOINTED. 116, 616. In the Orphans' Court of Philadelphia County. In re Estate of , Deceased. Term, , No. . To the Honorable, the Judges of the Said Court : The petition of the Trust Company respectfully rep- resents : 1. That your petitioner is Trustee under the Will of , deceased, a copy of which is hereto annexed. 2. That your petitioner has filed its account in your Honorable Court for audit at which proceedings it is necessary that certain minors hereinafter set forth, interested contingently in remainder be represented by a guardian ad litem. 3. That is a minor under the age of fourteen years, interested contingently in remainder ; that said minor is the son of and , both of whom are living and reside at , the said being a daughter of , who was a daughter of the above decedent. 4. That is a minor over the age of fourteen years, inter- ested contingently in remainder in the above estate; that said minor is the daughter of — and , both of whom are living and both of whom reside in the City of , the said , formerly , being a daughter of the above decedent. 5. That the said minors and their parents have neglected and refused, though repeatedly requested so to do, to nominate any one as guardian ad litem for said minors or petitioned your Hon- orable Court for the appointment of such guardian. Wherefore, your petitioner prays that a citation issue directed to the said and , to show cause why the Court FORMS 57 547 should not appoint a guardian ad litem for their son, , under the age of fourteen years and to and and , a minor over the age of fourteen years to show cause why a guardian ad litem should not be appointed for the said minor for the purpose aforesaid, and it further prays that said citation may be served upon the said and by reg- istered mail. And your petitioner will ever pray, etc. TRUST COMPANY. By State of Pennsylvania, County of Philadelphia, j.y; being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. DECREE. And Now, To wit, this day of , 192 1, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioner. It is hereby ordered and decreed. That the prayer thereof be granted and a citation is hereby di- rected to be issued to and , to show cause why a guardian ad litem should not be appointed by the Orphans' Court of Philadelphia County to represent , their son, a minor under the age of fourteen years at the audit of the account of the Trust Company, Trustee under the Will of , and to and , to show cause why the Orphans' Court of Philadelphia County should not appoint a guardian ad litem to represent the said , a minor over the age of fourteen years at the audit of the account of the Trust Company, Trustee under the Will of , and it is further ordered and decreed, That the said citation upon and , may be served upon them by registered mail. Returnable sec. leg. By the Court : 548 FORMS 58 58. PETITION UNDER THE REVISED PRICE ACT BY EXECUTOR FOR LEAVE TO SELL REAL ES- TATE AT PRIVATE SALE WHERE NO AU- THORITY TO SELL IS GIVEN IN THE WILL. 183. In the Orphans' Court for the County of Philadelphia. In re Estate of , Deceased. Term, -, No. . Petition for Leave to Sell Real Estate. To the Honorable, the Judges of the Said Court: The petition of The Company, , respectfully represents : 1. That it is sole executor under the will of , deceased, copy of which is annexed hereto. and , the other executors named in said will, having predeceased the testator. 2. That the said died on day of , leaving a will duly probated by the Register of Wills of Philadelphia County, and letters testamentary were granted thereon to your petitioner as executor. 3. That the said , after certain bequests of sundry items of personal effects and cash legacies, devised and bequeathed the residue of his estate (insert here term of trust). 4. (Recite parties in interest.) 5. Among the assets of the said is certain real estate, being premises Avenue, in the City of Philadelphia, known and described as follows: (description). being the same premises which — — — , a single man, by indenture bearing date the — — — day of , and recorded at Philadel- phia, in Deed Book , granted and conveyed unto the said in fee. 6. That the said property has been sold by your petitioner, subject to the approval of your Honorable Court, to for the price or sum of , in cash, of which has been paid on account, and the balance is to be paid upon the execution and delivery of a deed for said premises. 7. That your petitioner has been advised by two disinterested real estate experts that the price or sum of $ , is a full and fair price for said premises, and more than could be obtained FORMS s8 549 therefor at public sale. Affidavits to this eflfect are attached hereto and made part hereof as "Exhibit B" and "Exhibit C." 8. That the said property is assessed for taxation in the City of Philadelphia in the sum of $ , as will appear by ofificial certificate of the Board of Revision of Taxes annexed hereto as "Exhibit D." 9. Your petitioner and all the parties interested in said real estate in remainder or otherwise, consider it for the best interest of the said estate that the said premises shall be sold for the price or sum aforesaid. 10. Under the terms of the will of the said , your peti- tioner is given no authority to sell said real estate, wherefore it becomes necessary to apply to your Honorable Court for leave to make said sale. 11. All the parties interested in said real estate under the terms of said will, as hereinbefore recited, have agreed to said sale, and have agreed' that it is for the best interest of the estate for your petitioner to make said sale, and have received actual notice of this petition, either in person or by guardian, and have joined in the prayer thereof. Wherefore, your petitioner prays for leave and authority to sell and convey said premises abov|e described to the said upon receipt of the balance of the purchase money to which your petitioner is entitled ; said conveyance to vest title in said premises in the purchaser in fee simple free and discharged from all trusts, contingencies and remainders and indefeasible by any part or per- sons having a present or expectant interest therein in accordance with the provisions of the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. County of Philadelphia, .f.r.- , being duly sworn according to law, deposes and says that he is of the Corporation petitioner, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of A. D. 1919. 550 FORMS s8 JOINDER. We, the undersigned, being all the parties having a present or expectant interest in the real estate designated in the foregoing petition and at largei described therein, do hereby certify that we have had due notice of the intended presentation of the foregoing petition and do join in the prayer thereof. (Signatures.) EXHIBIT "B." State of , County of , ss: Personally appeared , who, being duly sworn according to law, deposes and says that he is a real estate expert of years' experience; that during said period he has been engaged in actively carrying on his profession in the County of ; that he is familiar with the values of real estate in the vicinity of the real estate referred to in the foregoing petition; that he has examined the premises therein described and as the result of said examination is of the opinion that the the sum of $ , in cash represents! the full market value of the said premises and is a greater price than could be obtained for the same at public sale, and that a sale thereof at the said price would be to the best interest and advantage of said estate; that he is not interested as broker, agent or otherwise in the said sale. Sworn to and subscribed before me this day of , 1921. DECREE. And Now, To wit, this day of , the Court, on motion of , attorneys for the petitioner, and upon con- sideration of the foregoing petition, do grant the prayer thereof, and do authorize and empower The Company , executor under the will of , deceased, to sell and convey: (description). to , for the price or sum of $ , and upon receipt of the balance of said purchase price, to wit : $ , to make, execute and deliver a deed therefor to the said in fee, free and discharged from all trusts and remainders and inde- feasible by any party or persons having a present or expectant FORMS S8. 59 55 1 interest therein. Security to be entered in the sum of $ , and the bond of The Company for is hereby ap- proved as such security. By the Court : J. 59. PETITION UNDER THE REVISED PRICE ACT BY ANCILLARY EXECUTOR AND TRUSTEE FOR LEAVE TO SELL REAL ESTATE AT PRI- VATE SALE WHEN THE TIME FIXED FOR SALE IN THE WILL HAS NOT ARRIVED. 183. In the Orphans' Court of Chester County. In the matter of the Estate of , Deceased. Term, , No. . Petition for Leave to Sell Real Estate at Private Sale. To the Honorable, the Judges of the Said Court: The petition of , Ancillary Executor and Trustee under the Will of , deceased, respectfully represents : I. That your petitioner individually and as Executor and Trustee under the will of , deceased, is seized of title in (description of property). being the same premises which , Executors and Trustees under the will of , et. al., by deed dated the day of , and recorded in Deed Book for Chester County, , page , conveyed to in fee, and the said afterwards intermarried with your petitioner and died on the day of — : , a resident of , having first made, published and declared her last will and testament dated the day of , a copy of which is annexed hereto as Exhibit "A," duly probated in the County of , on the day of , whereunder Letters Testamentary were duly issued to your petitioner, -. 2. On the day of , ancillary Letters Testamentary were issued to your petitioner by the Register of Wills of Chester County. 3. In and by said will after sundry pecuniary bequests herein- after referred to testatrix provided: (recite provisions of will). 4. Of the said pecuniary legacies all of which are hereinafter set forth the following have been paid: $ . 552 FORMS 59 5- All of said parties in interest are living and of full age and have received notice of the intended presentation of this petition and have joined in the prayer thereof. 6. Your petitioner is the residuary legatee under the said will. 7. Your petitioner has received a very advantageous offer for the sale of the property hereinabove set forth and all parties in interest have requested that the sale be consummated, but owing to the restriction in the will that the property shall be held for a period of three years after the death of the testatrix, the power of sale given to your petitioner in the will is not yet operative and it is necessary that your petitioner apply to your Honorable Court for leave and authority to make the said sale. 8. Subject to the approval of your Honorable Court the prem- ises described have been sold at private sale to for the price or sum of $ in cash. 9. Your petitioner is of the opinion that the price offered for the said real estate is full and fair and better than could be ob- tained for the same at public sale and that it would be for the best interest and advantage of the estate of , deceased, that the said sale be consummated in accordance with the terms hereinabove set forth because the price offered is better than could be obtained at public sale and that the sale may be made without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 10. Your petitioner has been assured by two real estate experts experienced in the values of properties in the neighborhood of those hereinabove referred to that the price offered for the same is full and fair and the best that could be obtained at public sale. Theif affidavits to this effect are hereto annexed as Exhibits "B" and "C." 11. That all parties interested in the said estate as hereinabove set forth, are satisfied that the price offered for the said premises is a full and fair one and better than could be obtained at public sale, and that the acceptance of the same will be for the best interests of the estate. 12. That the said premises are assessed for taxation in the sum of $ , as appears by the official certificate hereto an- nexed marked Exhibit "D." FORMS S9 553 13. Your petitioner therefore prays your Honorable Court for leave and authority to sell and convey the premises herein described to the for the price or sum of $ , in cash ; said conveyance to vest the title in the purchaser in fee simple, freed and discharged of all trusts, contingencies and remainders, and indefeasible by any party or persons having a present or ex- pectant interest therein in accordance with the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. Ancillary Executor and Trustee under the will of - — , deceased. State of Pennsylvania, County of , ss: being duly sworn according to law, deposes and says that he is the petitioner in the foregoing petition and that the facts set forth therein are true to the best of his knowledge, informa- tion and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. We, the undersigned, being all the parties interested in the premises referred to in the foregoing petition, hereby acknowl- edge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. (Signatures.) (Exhibit "B" and "C." See Form 58 supra.) DECREE. And Now, to wit, this day of , 192 1, on con- sideration of the foregoing petition and afifidavits thereto annexed, and on motion of , attorneys for the petitioner, it appearing that it would be to the best interest and advantage of the estate 554 FORMS 59, 60 of , deceased, that the premises described in the petition should be sold to at private sale for the sum of $ , in cash, and that the said price is better than can be obtained at public sale, and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation, it is ordered and decreed that the said sale be confirmed and that) the said , Ancillary Executor and Trustee under the will of , de- ceased, is hereby authorized and empowered to convey the said premises, to wit: (description of property). at private sale for the price of $ , in cash, to , the title of the purchaser to be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the Court ; security to be entered in the sum of $ . By the Court : J- 60. PETITION UNDER THE REVISED PRICE ACT BY A CHURCH HOLDING PROPERTY IN TRUST FOR LEAVE TO SELL THE SAME AT PRIVATE SALE WHERE NO POWER OF SALE IS GIVEN UNDER THE WILL. 183. In the Orphans' Court of Philadelphia County. In re Estate of , Deceased. Term, , No. . Petition for Leave to Sell Real Estate af Private Sale. To the Honorable, the Judges of the Said Court: The petition of Church, of Philadelphia, respectfully represents : I. That by Deed Poll bearing date the day of , and recorded at Philadelphia, in Sheriff's Book , page , Sheriff of Philadelphia County, granted and conveyed (here de- scribe property), now known as Street, to in fee. FORMS 60 555 2. That by Deed Poll bearing date the day of , and recorded at Philadelphia, in Sheriff's Book No. , page , Sheriff of Philadelphia County, granted and conveyed (description) : now known as Street, to in fee. 3. The said being so seized of said premises died on the day of , having first made, published and de- clared his last Will and Testament dated , and Codicil thereto dated , copy of which is hereto annexed as Exhibit "A," both duly probated in the Office of the Register of Wills of Philadelphia County on the day of . 4. In and by the said Will the said provided (here recite term of trust under will) : and your petitioner has held the premises hereinabove described for the uses and purposes of the said trust from the date of the death of the said decedent until the date hereof. 5. The houses erected on the said premises are very old and in a very dilapidated state of repair, so that in order to continue them in a tenantable condition, many hundreds of dollars would have to be spent to put them in good repair and out of its present funds your petitioner is unable to finance the said repairs and improvements. 6. Subject to the approval of your Honorable Court, premises Street, as hereinabove described, have been sold to , for the price or sum of $ , in cash and premises Street, as hereinabove described, have been sold to for the price or sum of $ in cash. 7. The said sales were duly authorized under the Rules and practice of your petitioner at a special meeting of the Board of Trustees of your petitioner duly called and regularly held on the day of , and ratified and confirmed at a special meeting of the congregation of your petitioner duly called and regularly held on the day of . 8. Your petitioner is of the opinion that the prices offered for the said real estate are full and fair and better than could be obtained for the same at public sale and that it would be for the best interest and advantage of the trust under which said premises are held that the said sales be consummated in accordance with the terms hereinabove set forth because the prices offered are 556 FORMS 60 better than could be obtained at public sale; that the sales may be made without injury or prejudice to any trust, charity or pur- pose for which the same are held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 9. Your petitioner has been assured by two disinterested real estate experts experienced in the values of properties in the neighborhood of those hereinabove referred to that the prices offered for the same are full and fair and the best that could be obtained at public sale. Their affidavits to this effect are hereto- annexed as Exhibits "B" and "C." 10. That the said premises are assessed for taxation in the sum of $ , each as appears by the official certificate hereto an- nexed marked Exhibit "D." 11. Your petitioner has no power of sale under the terms of the will of the above decedent as hereinabove set forth, and there- fore presents this petition to your Honorable Court to obtain its consent thereto under and by virtue of Section 2 (a) (5) of the Revised Price Act of 1917. 12. Your petitioner therefore prays your Honorable Court for leave and authority to sell and convey the premises herein de- scribed, to wit : Street, to , for the price or sum of $ , in cash and premises Street, to for the price or sum of $ in cash ; said conveyance to vest the title in the purchasers in fee simple freed and discharged of all trusts, contingencies and remainders, and indefeasible by any party or persons having a present or expectant interest therein in accord- ance with the Act of Assembly in such case made and provided. And your petitioner will ever pray, &c. Church, By- President. Attest : Secretary. FORMS 60 557 State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is the President of the Board of Trustees of the Church, of Philadelphia, and that the facts set forth in the fore- going petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. EXHIBIT B. (See Form 58 supra.) DECREE. And Now, to wit; this day of , 1920, on con- sideration of the foregoing petition and affidavits thereto annexed and on motion of , attorneys for the petitioner, it appear- ing that it would be to the best interest and advantage of the estate of and of the trust under which the Church, of Philadelphia, holds title to the premises hereinafter described that the premises described in the petition, to wit: Street, should be sold to for $ in cash at private sale and Street, should be sold to , at private sale for the sum of $ in cash, and that the said prices are better than can be obtained at public sale and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same are held and without the violation of any law which may confer an immunity or exemption from sale or aliena- tion, it is ordered and decreed that the said sales be confirmed and that the said Church, of Philadelphia, is hereby authorized and empowered to convey the said premises, to wit: (here insert descriptions) : known as Street, to for $ in cash ; the titles of the purchasers to be fee simple titles, indefeasible by any party or persons having a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the Court ; security to be entered in the sum of $ . By the Court : J. 558 FORMS 6i 6i. PETITION UNDER THE REVISED PRICE ACT BY TRUSTEE FOR LEAVE TO SELL REAL ES- TATE AT PRIVATE SALE WHERE THE TRUS- TEE HAS NO POWER OF SALE UNDER THE WILL. 183. In the Orphans' Court of Philadelphia County. In re Estate of , Deceased. Term, , No. — . To the Honorable, the Judges of the Said Court: The petition of the Trust Company, substituted trustee under the will of , deceased, respectfully represents : 1. died , having first made, published and de- clared his last Will and Testament dated , duly probated in the Office of the Register of Wills of Philadelphia County, wherein and whereby the decedent appointed his sons, and executors and trustees, both of whom are now deceased. A copy of the will is hereto annexed as Exhibit "A." 2. That by the adjudication of your Honorable Court dated , sur the account of the Executors of the said estate, the residue of thei estate was awarded to and , execu- tors, in trust under the terms of the will. 3. That the said died upwards of twenty years ago and that the said , the surviving executor and trustee died on the day of , and your Honorable Court by decree dated the day of , appointed the Trust Company substituted trustee under the will of the said decedent. 4. That in addition to the personal estate awarded to said trustees under said adjudication, the deceased also possessed cer- tain real estate in the City of Philadelphia, amounting in value to upwards of $ . 5. Under his will, the decedent gave his executors the power to sell certain real estate in the City of Philadelphia, and specif- ically forbade that they sell any other including the premises herein described, until after the decease of his three daughters, to wit, and , two of whom are still living. 6. By the terms of his will the decedent gave the residue of his estate to his executors in trust (recite terms of trust) : 7. (Recite parties in interest and how acquired). FORMS 6i 559 8. Among the assets of the residuary estate of the said dece- dent, title to which is now vested in your petitioner is (describe property by latest deed) : being known as premises Street, in the City of Philadel- phia, and being the same premises that by Indenture bearing date the day of , and now recorded at Philadelphia, in Deed Book , page , &c., granted and conveyed unto the said in fee. 9. The said premises Street, are in very poor condi- tion. The roof, woodwork and interior all need general over- hauling. The property is now rented at $ per month, or $ per year. The fixed charges, including taxes and water rent, amount to $ , and the average cost of repairs is ap- proximately $ — annually, so that the net return averages $ per year, which is interest at 6 per cent, on $ . If the proposed sale, however, herein referred to, is approved by your Honorable Court, approximately $ will be available to the estate on which the annual return will amount to $ . 10. Subject to the approval of your Honorable Court, the premises above described have been sold at private sale to and , for the price or sum of $ , $ in cash and $ secured by the bond and mortgage of the grantees in the usual form with interest at 6 per cent, per annum, payable at the expiration of three years from the date thereof or all in cash at the option of the purchasers. 11. Your petitioner is of the opinion that the price offered for the said real estate is full and fair and better than could be ob- tained for the same at public sale and that it would be for the best interest and advantage of the estate of , deceased, that the said sale be consummated in accordance with the terms hereinabove set forth, because the price offered is better than could be obtained at public sale, that the sale may be made with- out injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 12. Your petitioner has been assured by two disinterested real estate exf>erts experienced in the values of properties in the neighborhood of those hereinabove referred to that the price offered for the same is full and fair and the best that could be obtained at public sale. Their affidavits to this effect are hereto annexed as Exhibits "B" and "C." 56o FORMS 6i 13. That all parties interested in the said estate as hereinabove set forth, are satisfied that the price offered for the said premises is a full and fair one and better than could be obtained at public sale, and that the acceptance of the same will be for the best interest of the estate. The said parties have received notice of the intended presentation of this petition and have joined in the prayer thereof. 14. That the said premises are assessed for taxation in the sum of $ , as appears by the official certificate heerto an- nexed marked Exhibit "D." 15. Your petitioner has no power of sale under the terms of the will of the above decedent as hereinabove set forth and there- fore presents this petition to your Honorable Court to obtain its consent thereto. 16. Your petitioner therefore prays your Honorable Court for leave and authority to sell and convey the premises herein de- scribed to and , for the price or sum of $ in cash and $ secured by the bond and mortgage of the grantees in the usual form with interest at 6 per cent, per annum, payable at the expiration of three years from the date thereof or all in cash at the option of the purchasers; said conveyance to vest the title in the purchaser in fee simple, freed and discharged of all trusts, contingencies and remainders, and indefeasible by any party or persons having a present or expectant interest therein in accordance with the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. The Trust Company. By- State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and behef. Sworn to and subscribed before me this day of , 1921. FORMS 6i 561 JOINDER. We, the undersigned, being all the parties interested in the premises referred to in the foregoing petition, acknowledge that we have received notice of the intended presentation of the fore- going petition and join in the prayer thereof. EXHIBIT "B." Commonwealth of Pennsylvania, City and County of Philadelphia, ss: Personally appeared , who, being duly sworn according to law, deposes and says that he is a real estate expert of years' experience, now engaged in business at ; that during said period he has been engaged in actively carrying on his pro- fession in the County of Philadelphia; that he is familiar with the values of real estate in the vicinity of the real estate referred to in the foregoing petition ; that he has examined the premises therein described and as the result of said examination is of the opinion that the sum of $ , $ in cash and $ secured by the bond and mortgage of the grantees in the usual form with interest at 6 per cent, per annum, payable at the expi- ration of three years from the date thereof or all in cash at the option of the purchasers represents the full market value of the said premises and is a greater price than could be obtained for the same at public sale, and that a sale thereof at the said price would be to the best interest and advantage of said estate. Sworn to and subscribed before me this day of , 192 1. DECREE. And Now, to wit: this day of , 1921, upon con- sideration of the annexed petition and affidavits thereto attached and on motion of , attorneys for the petitioner, it appear- ing that it would be to the best interest and advantage of the estate of that the premises described in the petition should be sold to and , at private sale, for the sum of $ , $ in cash and $ secured by the bond and mortgage of the grantees in the usual form with interest at 6 per cent, per annum, payable at the expiration of three years from the date thereof or all in cash at the option of the purchasers and 36 562 FORMS 61, 62 that the said price is better than can be obtained at public sale and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation, It is ordered and decreed that the said sale be confirmed and that the said Trust Company, substituted trustee under the will of , deceased, is hereby authorized and empowered to convey the said premises, to wit: (description of property) : being known as premises Street, Philadelphia, to and , for the price of $ , $ in cash and $ secured by the bond and mortgage of the grantees in the usual form with interest at 6 per cent, per annum payable at the expira- tion of three years from the date thereof or all in cash, at the option of the purchasers ; the title of the purchasers to be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the Court ; security to be entered in the sum of $- , and the bond of the Trust Com- pany is hereby approved as such security. By the Court : 6a. PETITION UNDER THE REVISED PRICE ACT BY TRUSTEE FOR LEAVE TO JOIN WITH OTHERS IN THE PRIVATE SALE OF REAL ESTATE WHERE THERE IS NO POWER OF SALE IN THE WILL. 183. In the Orphans' Court of Philadelphia County. In re Estate of , Deceased. Term, , No. -. Petition for Leave to Join in the Sale of Real Estate at Private Sale. To the Honorable, the Judges of the Said Court: The petition of The Company, , Trustee of the Estate of , deceased, respectfully represents : I. That died , a resident of Philadelphia County, seized of title to (description) : FORMS 62 563 being known as Nos. Street, and Nos. Avenue, being the corner of Street and Avenue, Philadelphia. 2. The will of the said decedent dated , was duly pro- bated on the day of , and Letters Testamentary were duly granted to , one of the Executors named therein. Copy of said will is hereto annexed marked Exhibit "A." 3. By his will the decedent provided inter alia as follows: (recite provisions of will) : 4. In an adjudication by Judge , of the Orphans' Court of Philadelphia County, sur account of , Trustee, wherein the fund before the Court represented rents from real estate and the award of a jury of view for damages caused to the decedent's real estate by the change of grade of Street, the Court held: * * * 5. In a later adjudication before Judge , sur the account of The Company , Trustee, wherein the fund accounted for represented a balance in the hands of the accountant from the sale of certain real estate, the Court held: ^ ^ ^ 6. The said was discharged as Trustee of the estate on , and on , The Company , was ap- pointed Trustee of the said estate in his place and stead and holds title as Trustee for an undivided four-ninths for the benefit of the widow for life. pj * * ii< 8. (Recite parties in interest.) 9. Title to the said real estate is therefore vested as follows: four-ninths in The Company , Trustee under the will of , deceased, for the life of the widow ; one-ninth in ; one-ninth in ; one-ninth in ; one-ninth in The Company , Guardian of the Estates of , subject to the life interest of ; one-ninth in guardian of the estates of and , minors, subject to the life interest of . 10. The said children and issue of deceased children are also vested with the remainder interest in the four-ninths held in trust as aforesaid for the Hfe of the widow. 11. The premises hereinabove described are vacant lots from which no income can be derived, but which, on the other hand, 564 FORMS 62 on account of taxes are a constant drain upon the estate for the payment of which no income ig available. 12. Subject to the approval of your Honorable Court the premises above described have been sold at private sale to for the price or sum of $ in cash. 13. Your petitioner is of the opinion that the price offered for the said real estate is full and fair and better than could be ob- tained for the same at public sale and that it would be for the best interest and advantage of their estate and all parties in interest that the said sale be consummated in accordance with the terms hereinabove set forth because the price offered is better than could be obtained at public sale and because it would be necessary to have partition proceedings to separate the ownership of the various persons interested and by making the sale to the said purchaser, the expense and delay of partition proceedings can be avoided, and that it is not likely that the property will increase in value within the time necessary for the partition pro- ceedings, that the sale may be made without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 14. Your petitioner has been assured by two disinterested real estate experts experienced in the values of properties in the neigh- borhood of those hereinabove referred to, that the price offered for the same is full and fair and the best that could be obtained at public sale. Their affidavits to this effect are hereto annexed as Exhibits "B" and "C." 15. That all parties interested in the said estate as hereinabove set forth are satisfied that the price offered for the said premises is a full and fair one and better than could be obtained at public sale, and that the acceptance of the same will be for the best interests of the estate. The said parties have received notice of the intended presentation of this petition and have joined in the prayer thereof. 16. That the said premises are assessed for taxation in the sum of $ , as appears by the official certificate hereto an- nexed marked Exhibit "D." 17. Your petitioner has no power of sale under the terms of the will of the above decedent as hereinabove set forth, and there- fore presents this petition to your Honorable Court to obtain its consent thereto. FORMS 62 565 18. Your petitioner therefore prays your Honorable Court for leave and authority to join with the other parties in interest in the sale and conveyance of the premises herein described upon receipt of the proportionate part of the purchase price to which it is entitled to the said for the price or sum of $ in cash; said conveyance to vest the title in the purchaser in fee simple, freed and discharged of all trusts, contingencies and re- mainders, and indefeasible by any party or persons having a present or expectant interest therein in accordance with the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. By Trustee of the Estate of , Deceased. State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. We, the undersigned, being all the parties interested in the premises referred to in the foregoing petition, hereby acknowledge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. EXHIBIT "B" AND "C." (See Form 58 supra.) In the Orphans' Court of Philadelphia County. In re Estate of , Deceased. Term, , No. . DECREE. And Now, to wit, this day of , 1921, on con- sideration of the annexed petition and affidavits thereto annexed and on motion of , attorneys for the petitioner, it appear- ing that it would be to the best interest and advantage of the estate of , deceased, that the premises described in the petition should be sold to , at private sale for the sum of 566 FORMS 62, 63 $ in cash, and that the said price is better than can be obtained at public sale, and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation, it is ordered and decreed that the said sale be confirmed and that the said The Company , substituted Trustee under the will of , deceased, is hereby authorized and empowered to join in the sale and conveyance of the said premises, to wit: (description) : being known as Nos. Street, and Avenue, being the corner of Street and Avenue, Phila- delphia, to , at private sale for the price of $ in cash, uf>on receipt of the proportionate part of the purchase price to which it is entitled; the title of the purchaser to be a fee simple title, indefeasible by any party or persons having a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the. Court ; security to be entered in the sum of $ , and the bond of the said The Com- pany — , is hereby approved as such security. By the Court : ( Note : In Philadelphia County it is now required that the decree be the first page of the petition. This form of decree is adapted for that purpose.) 63. PETITION UNDER THE REVISED PRICE ACT BY GUARDIAN FOR LEAVE TO SELL REAL ESTATE AT PRIVATE SALE WHERE THE PREMISES ARE IN BAD REPAIR AND THE SALE WILL INCREASE THE INCOME FOR THE MINOR. 183. In the Orphans' Court of Philadelphia County. In re Estate of , a minor. Term, , No. . Petition for Leave to Sell Real Estate at Private Sale. To the Honorable, the Judges of the Said Court: The petition of , Guardian of the estate of , a minor, respectfully represents: FORMS 63 567 I. That and wife by indenture bearing date the day of , and recorded at Philadelphia, in the Office for Recording of Deeds in and for the City and County of Phila- delphia, in Deed Book , page , &c., granted and conveyed (description of property) : known as premises Street, Philadelphia, to in fee under and subject to certain building restrictions and also under and subject to the payment of a certain first mortgage of $ and a second mortgage of $ . 2. That the said , being seized of said premises died on the day of — , 1914, intestate, leaving to survive him his wife, , and his daughter, a minor, as his only heirs and next of kin whereby title to the said premises be- came vested in the said minor, subject to the life interest of the said in one-third thereof. 3. That the said has remised and released to the said minor all her interest in said real estate so that the entire title to the same is now vested in said minor. 4. That was appointed guardian of the estate of the above minor by decree of the Orphans' Court of Montgomery County, dated . 5. The improvements on the said premises consist of a two- story brick dwelling without modern improvements which, up to several months ago, had been rented for $ per month. That the said premises were vacant for several months, but are now occupied by a proposed purchaser pending the approval of this agreement, with the understanding that he shall pay the fixed charges thereon. The premises are assessed for $ . In order to keep them in tenantable condition, it is estimated that approximately $ per annum would have to be spent for repairs. Taxes and water rent aggregate $ per year and interest on the first mortgage at 6 per cent. $ per year, leaving a net return of $ , which represents the interest on an equity of approximately $ . 6. On paid the said second mortgage on the said prem- ises which with the debt, interest and satisfaction fee, then amounted to the sum of $ , which amount with interest thereon from the said date she claims to have repaid to her out of the proceeds of the sale of said property herein prayed for. 7. Subject to the approval of your Honorable Court, the prem- ises above described have been sold at private sale to for 568 FORMS 63 the price or sum of $ in cash, that is, $ in cash sub- ject to a first mortgage of $ . 8. Your petitioner is of the opinion that the price oflfered for the said real estate is full and fair and better than could be ob- tained for the same at public sale and that it would be for the best interest and advantage of the estate of that the said be consummated in accordance with the terms hereinabove set forth; that the sale may be made without injury or pre- judice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 9. Your petitioner has been assured by two disinterested real estate experts, experienced in the values of properties in the neighborhood of those hereinabove referred to that the price offered for the same is full and fair and the best that could be obtained at public sale. Their affidavits to this effect are hereto annexed as Exhibits "A" and "B." 10. That all parties interested in the said estate as hereinabove set forth, are satisfied that the price offered for the said prem- ises is a full and fair one and better than could be obtained at public sale, and that the acceptance of the same will be for the best interests of the estate. The said parties have received notice of the intended presentation of this petition and have joined in the prayer thereof. 11. That the said premises are assessed for taxation in the sum of $ , as appears by the official certificate hereto an- nexed, marked Exhibit "C." 12. Your petitioner therefore prays your Honorable Court for leave and authority to convey the said premises for $ in cash, over and above a first mortgage of $ , to , free, clear and discharged of all trusts, claims and demands, the title of the purchaser to be in fee simple, indefeasible by any party or persons having a present or expectant interest in the premises and the purchase money to be in all respects substituted for the land sold and to be applied to the uses of the same persons for the same estate and the same interests that it is now held. And your petitioner will ever pray, &c. Guardian of the Estate of , a minor. FORMS 63 569 State of , County of , ss: , being duly sworn according to law, deposes and says that he is the petitioner herein and that the facts set forth in the foregoing petition are true to the best of his knowledge, infor- mation and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. We, the undersigned, being all the parties interested in the estate of , a minor, hereby acknowledge that we have re- ceived notice of the intended presentation of the foregoing peti- tion and join in the prayer thereof. In the Orphans' Court of Philadelphia County. In re Estate of , a minor. Term, , No. . DECREE. And Now, to wit, this day of , 1921, on con- sideration of the annexed petition and the affidavits thereto attached and on motion of , attorneys for the petitioner, it appearing that it would be to the best interest and advantage of the estate of , a minor and all parties interested therein, that the premises described in the petition should be sold to , at private sale for the price or sum of $ in cash, under and subject to a first mortgage of $ ; that the said price is better than can be obtained at public sale and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemp- tion from sale or alienation. It is ordered and decreed that the said , Guardian of the estate of , a minor, is hereby authorized and directed to convey the said premises to the said , upon receipt of the said purchase price of $ , sub- ject to the necessary adjustment at the time of settlement of taxes and water rent among the persons entitled thereto and to the repayment to of the sum of $ , with interest 570 FORMS 63, 64 thereon from , the title of the purchaser to be a fee simple title, subject to certain building restrictions and subject to the said first mortgage of $ , indefeasible by any party or persons having a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the Court; security to be entered in the sum of $— — . By the Court : J- 64. PETITION UNDER THE REVISED PRICE ACT BY GUARDIAN FOR LEAVE TO JOIN WITH OTHERS IN THE PRIVATE SALE OF REAL ESTATE TO AVOID PARTITION. 183. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , a minor. Term, , No. . Petition for Leave to Join in the; Sale of Real Estate at Private Sale. To the Honorable, the Judges of the Said Court: The petition of The Company , Guardian of the Estate of , a minor, respectfully represents : 1. by indenture bearing date the day of , and recorded in the office for recording of deeds in and for the City and County of Philadelphia, in deed book , etc., granted and conveyed unto , (insert description) : being known as premises Street, Philadelphia. 2. being so seized of said premises died on the day of , intestate, leaving to survive her, her husband, and her daughter, , as her only heirs so that title to said premises is now vested in the said , and the said , each an undivided one-half share. 3. Your petitioner was duly appointed guardian of the estate of the said minor , by decree of your Honorable Court, dated . 4. is living and of full age. 5. Subject to the approval of your Honorable Court the prem- FORMS 64 571 ises above described have been sold at private sale to , for the price or sum of $ in cash. 6. Said premises consist of a lot — feet — inches by — feet, on the northeast corner of and Streets, Philadel- phia, on which is erected a three-story brick dwelling, built about fifty years ago, containing twelve rooms and no modern improve- ments. The property is in rather poor condition and is now vacant. If placed in good condition with modern improvements, it would probably rent for approximately $ per month, but your petitioner is without funds in the estate of the said minor to provide the said improvements and it is the desire of your petitioner and the said , the only other party in in- terest, to sell the said premises and invest the proceeds so that an income will be available for the benefit of the said minor, rather than continue it in its present condition, whereby a very small rent could be obtained as against heavy fixed charges with a consequent loss to the estate of the said minor. 7. Your petitioner therefore is of the opinion that the price ofifered for the said real estate is full and fair and better than could be obtained for the same at public sale and that it would be for the best interest and advantage of the estate of the said minor, , that the said sale be consummated in accordance with the terms hereinabove set forth because the price offered is better than could be obtained at public sale and because it would be necessary to have partition proceedings to separate the ownership of the various persons interested and by making the sale to the said purchaser, the expense and delay of partition proceedings can be avoided, and that it is not likely that the prop- erty will increase in value within the time necessary for the par- tition proceedings, that the sale may be made without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 8. Your petitioner has been assured by two disinterested real estate experts experienced in the values of properties in the neighborhood of those hereinabove referred to that the price offered for the same is full and fair and the best that could be obtained at public sale. Their affidavits to this effect are hereto annexed as Exhibits "A" and "B." 9. That all parties interested in the said estate as hereinabove set forth, are satisfied that the price offered for the said prem- 572 FORMS 64 ises is a full and fair one and beter than could be obtained at public sale and that the acceptance of the same will be for the best interests of the estate. The said parties have received notice of the intended presentation of this petition and have joined in the prayer thereof. 10. That the said premises are assessed for taxation in the sum of $ , as appears by the official certificate hereto an- nexed marked Exhibit "C." 11. Your petitioner has no power of sale and therefore pre- sents this petition to your Honorable Court to obtain its consent thereto. 12. Your petitioner therefore prays your Honorable Court for leave and authority to join in the sale and conveaynce of the premises herein described to the said , for the price or sum of $ , in cash ; said conveyance to vest the title in the pur- chaser in fee simple, freed and discharged of all trusts, contin- gencies and remainders and indefeasible by any party or per- sons having a present or expectant interest therein in accordance with the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. The Company , Guardian of the Hstate of , a minor. By State of Pennsylvania, City and County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner, and that the facts set forth in the foregoing petition are true and correct to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , a minor. Term, , No. . FORMS 64, 6s 573 DECREE. And Now, to wit, this day of , 1921, on con- sideration of the annexed petition and affidavits thereto annexed and on motion of , attorneys for the petitioner, it appear- ing that it would be to the best interest and advantage of the estate of , a minor, that the premises described in the petition should be sold to at private sale for the sum of $ , in cash and that the said price is better than can be obtained at public sale and that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law* which may confer an immunity or exemption from sale or alienation. It is ordered and decreed that the said sale be confirmed and that the said The Company , Guardian of the Estate of , is hereby authorized and empowered to join in the sale and conveyance of the said premises, to wit, (description) : being known as premises Street, Philadelphia, to for the price or sum of $ , in cash; the title of the pur- chaser to be a fee simple title, indefeasible by any party or per- sons having a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the Court ; security to be entered in the sum of $ , and the bond of the said The Company , is hereby approved as such security. By the Court : 65. PETITION UNDER THE REVISED PRICE ACT BY TRUSTEE FOR LEAVE TO SELL AN IRRE- DEEMABLE GROUND RENT AT PRIVATE SALE. 183. In the Orphans' Court for the County of Philadelphia. In re Estate of , Deceased. Term, , No. . Petition for Leave to Sell Ground Rent at Private Sale. To the Honorable, the Judges of the Said Court: The petition of the Acme Trust Company, Trustee under the will of , Deceased, respectfully represents: 574 FORMS 6s 1. That , late of the City and County of Philadelphia, died , having first made and published his last will and testament, duly probated in the office of the Register of Wills in and for the County of Philadelphia. 2. In and by said will testator (here recite pertinent provisions of will) : A copy of the will of ■ is annexed hereto and marked Exhibit "A" and made a part hereof. 3. (Recite here parties in interest and how acquired.) 4. That among the assets of the residuary estate of the above decedent is the following described irredeemable ground rent, to wit: (give here description in latest deed) : being the same ground rent that was acquired inter alia by the said by indenture bearing date the day of , and recorded at Philadelphia, in Deed Book , No. , page — , etc., being now known as premises Street, in the City of Philadelphia. 5. That a sale of the aforesaid irredeemable ground rent has been made subject to the approval of your Honorable Court to , for the price or sum of $ in cash. 6. That although there is a power of sale under the will of , deceased, your petitioner is advised that said power does not cover the interest of , and her husband and the interest of , and his wife, purchased by your peti- tioner by virtue of proceedings duly had in this Court. This petition is therefore presented. 7. Your petitioner has been assured by real estate experts familiar with the values of real estate in the vicinity that the price or sum of $ is a full and fair price for the said ground rent and is more than could be obtained therefor at public sale. Their affidavits are attached hereto and made part hereof as Exhibits "B" and "C." 8. That the said property out of which the said ground rent is payable is assessed in the sum of $ , as will appear by the official certificate of the Board of Revision of Taxes hereto annexed as Exhibit "D." 9. That your petitioner is of the opinion that it is for the best interest and advantage of the said estate to sell the said ground rent as herein set forth. FORMS 6s 575 10. That all of the parties in interest as hereinabove set forth have joined in the prayer of this petition. 11. That the said sale may be made without injury or preju- dice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer immu- nity or exemption from sale or aHenation. Wherefore your petitioner being without authority as afore- said to make sale of said ground rent without the order of your Honorable Court, makes this application under the Revised Price Act of 1917, and prays for leave and authority to sell, assign and convey the said ground rent hereinbefore described to , upon receipt of the purchase price of $ , said con- veyance to vest the title of the said ground rent in the said , freed and discharged of all trusts, contingencies and re- mainders and indefeasible by any party or persons having a present or expectant interest therein, in accordance with the provisions of the Act of Assembly in such case made and pro- vided. And your petitioner will ever pray, etc. ACME TRUST COMPANY, By Trustee under the Will of , Deceased. County of Philadelphia, .?.?.- being duly sworn according to law, deposes and says that he is of the corporation petitioner, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. JOINDER. We, the undersigned, being all parties presently interested in the estate of , acknowledge that we have received notice of the presentation of the foregoing petition and join in the prayer thereof. 576 FORMS 6s EXHIBIT "B." County of Philadelphia, jj; being duly sworn according to law, deposes and says that he is a real estate expert of years' experience; that he is familiar with the values of real estate in the city of Phila- delphia ; that he has examined the premises described in the fore- going petition and in his opinion the price or sum of $ , offered for the said ground rent is a full and fair price therefor, and more than could be obtained for the same at public sale. And further deponent saith not. Sworn to and subscribed before me this day of , 1920. EXHIBIT "C." County of Philadelphia, .$•.?.• being duly sworn according to law, deposes and says that he is a real estate expert of years' experience; that he is familiar with the values of real estate in the city of Phila- delphia ; that he has examined the premises described in the fore- going petition and in his opinion the price or sum of $ , offered for the said ground rent is a full and fair price therefor, and more than could be obtained for the same at public sale. And further deponent saith not. Sworn to and subscribed before me this day of , 19120. DECREE. And Now, to wit, this day of , 1920, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioner, it appearing that it will be to the interest and advantage of all the parties interested therein that the said ground rent, to wit: (repeat description here) : being now known as premises Street, in the city of Phila- delphia, should be sold to , for the sum of $ , in cash; that the said sum is a better price than could be obtained at public sale; that the same may be made without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer immunity or exemption from sale or alienation, the Court grants FORMS 6s, 66 577 the prayer thereof and authorizes and empowersi the Acme Trust Company, trustee under the will of , deceased, to sell, convey and assign the said ground rent to the said , upon receipt of the purchase price, the title of the purchaser to be a fee simple title, indefeasible by any party or persons having a present or expectant interest therein and freed and discharged of all remainders and unprejudiced by any error in the proceed- ings of the Court. Security to be entered in the sum of $ , the bond of the said Acme Trust Company is hereby approved as such security. By the Court : J- 66. PETITION UNDER THE REVISED PRICE ACT BY TRUSTEE FOR LEAVE TO ASSIGN AND EXTINGUISH AN IRREDEEMABLE GROUND RENT ON A THREE PER CENT. BASIS. 183. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . Petition for Leave to Assign and Extinguish Irredeemable Ground Rent. To the Honorable, tlte Judges of the Said Court: The petition of The — Cbmpany , respectfully rep- resents : I. That died in , seized of all that certain yearly rent or sum of $ , lawful silver money of the United States of America, payable in equal half yearly payments on the first days of the months of and , in each and every year after the day of , forever, excepted and re- served out of (recite here description from last deed) : being known as and Street, and Street, Philadel- phia, which premises were conveyed by the said to , by indenture dated the day of , and recorded in Philadelphia, in Deed Book , page , &c., and the said , in and by her will dated , duly probated in Philadelphia devised and bequeathed certain property therein 37 578 FORMS 66 mentioned, including the aforesaid ground rent to her trustees in trust for , for life with power of appointment and the said died , having first made, published and de- clared her last will and testament dated , a copy of which is hereto annexed marked Exhibit "A," duly probated in Phila- delphia County, as will , andi recorded in Will Book , page , and the said , in and by her said will did give, devise and bequeath property over which/ she had power of appointment, including said ground rent, to your petitioner in trust for the benefit of her daughters for life, subject to annui- ties of $ , each to her two sons with power in the daughters of continuing the trust for their children if they think proper and in further trust if any of her children should die leaving lawful issue then living, such children to take their respective parent's share. 2. The said was survived by her husband, , since deceased, and by five children, to wit : , all of whom are living and of full age, except , who died , intestate, unmarried and without issue. The surviving four children of the decedent have no issue so that they are the only parties inter- ested in this estate. 3- The present owner of the fee simple title to the said prem- ises is , who has offered to purchase and extinguish the said ground rent for the sum of $ , in cash and subject to the approval of your Honorable Court, your petitioner has agreed to assign and extinguish the said ground rent to the said for the price aforesaid which is on a basis of three per cent. 4. Your petitioner believes that it will be to the best interest and advantage of the estate of the said to assign and extinguish the said ground rent for the aforesaid consideration as by doing so the income to the estate can be practically doubled. 5. The said premises are assessed in the sum of $ , as will appear from the official certificate of the Board of Revision of Taxes hereto annexed marked Exhibit "B." 6. Your petitioner has been assured by two disinterested real estate experts familiar with the values of real estate in the vicinity of the premises that the sum of $ in cash is a full and fair price for the same and more than could be obtained there- for at public sale and their affidavits to this effect are attached hereto and made a part hereof as Exhibits "C" and "D." FORMS 66 579 7. That your petitioner, under the terms of the said will, is without authority to make sale of such ground rent without the consent of your Honorable Court and by reason thereof this petition is presented. Wherefore your petitioner prays for leave to sell and extinguish the ground rent hereinbefore described to , upon receipt of the purchase price, to wit: $ in cash; said conveyance to vest the title of the said ground rent in the said purchaser, freed and discharged of all trusts, contingencies and remainders, indefeasible by any party or persons having a present or expectant interest therein in accordance with the provisions of the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. THE COMPANY . By State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is the of the corporation petitioner, and that the facts set forth in the foregoing are true to the best of his knowl- edge, information and belief. Sworn to and subscribed before me this day of , 192 1. JOINDER. We, the undersigned, being all the parties interested in the estate of , deceased, hereby acknowledge that we have re- ceived notice of the presentation of the foregoing petition and join in the prayer thereof. EXHIBIT "C." State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is a real estate expert of years' experience; with an office at , Philadelphia; that he is familiar with the values of real estate in the City of Philadelphia; that he has examined the premises described in the foregoing petition and in his opinion the price or sum of $ in cash offered for the 580 FORMS 66 ground rent reserved thereout is a full and fair price therefor, and more than could be obtained for the same at public sale. And further deponent saith not. Sworn to and subscribed before me this day of , 1921. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of 1921, upon considera- tion of the annexed petition and affidavits thereto attached, and on motion of , attorneys for the petitioner, it appearing that it will be to the interest and advantage of the estate of , deceased, that the said yearly rent of $ , lawful silver money, payable half yearly on the first days of the months of and , in each and every year after the day of , forever, excepted and reserved out of (description of property) : being known as and — Street, and Street, should be sold, assigned and extinguished to ' for $ in cash and it further appearing that the same may be made with- out injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation and that the said sum of $ in cash is a better price than could be obtained for the same at public sale. It is ordered and decreed that the said sale by The Company , Trustee under the will of , deceased, as aforesaid, be and the same is hereby confirmed and the said The Company , Trustee as aforesaid, is hereby authorized and em- powered, upon receipt of said sum of $ , and all arrear- ages of ground rent to the day of settlement, to convey the said ground rent to , the title of the purchaser to be in fee simple, indefeasible by any party or persons hav- ing a present or expectant interest in the said premises and unprejudiced by any error in the proceedings of the Court; secu- FORMS 66, 67 581 rity to be entered in the sum of $ , and the bond of the said The Company , is hereby approved as such security. By the Court : J. 67. PETITION UNDER THE REVISED PRICE ACT BY A GUARDIAN FOR THE APPOINTMENT OF A TRUSTEE TO MAKE PRIVATE SALE OF REAL ESTATE IN WHICH THE MINOR HAS AN INTEREST. 185. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . Petition for Appointment of Trustee to Make Sale of Real Estate Under the Revised Price Act of 191 7. To the Honorable, the Judges of the Said Court: The petition of respectfully represents : 1. , the above decedent, died , intestate, leaving to survive her her husband, , your petitioner and one child, a minor, , and no other children or issue of deceased children. 2. That Trust Company has been duly appointed guardian of the estate of the said minor by your Honorable Court. 3. The said decedent died seized and possessed of (describe property) : under and subject to certain building restrictions therein men- tioned and also subject to the payment of a certain mortgage debt or principal sum of $ , together with interest thereon as therein mentioned, said premises being known as Street, Philadelphia, and being the same premises that by deed dated , and recorded at Philadelphia, in Deed Book , page , &c., granted and conveyed unto the said in fee. 4. Title to the said premises is vested in the said minor subject to the life estate of her father, . 5. Subject to the approval of your Honorable Court, the prem- ises above described have been sold at private sale to , for 582 FORMS 67 the price or sum of $ , payable $ in cash and $- at the expiration of five years, secured by a bond and mortgage in the usual form with interest at 6 per cent, per annum, said mortgage of $ now on said premises with interest accrued thereon to be paid out of said purchase price at time of settle- ment. 6. Your petitioner is of the opinion that the price offered for the said real estate is full and fair and better than could be obtained for the same at public sale and that it would be for the best interest and advantage of the estate of the said minor that the said sale be consummated in accordance with the terms here- inabove set forth because the price offered is better than could be obtained at public sale, that the sale may be made without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer an immunity or exemption from sale or alienation. 7. Your petitioner has been assured by two disinterested real estate experts experienced in the values of properties in the neighborhood of that hereinabove referred to that the price offered for the same is full and fair and the best that could be obtained at public sale. Their affidavits to this effect are hereto annexed as Exhibits "A" and "B." 8. That the only party interested in the said estate of the said decedent other than your petitioner, to wit : the said minor, by her guardian is satisfied that the price offered for the said premises, payable as aforesaid, is a full and fair one and better than could be obtained at public sale and that the acceptance of the same will be for the best interest and advantage of the estate of the said minor. The said minor by her guardian has received notice of the intended presentation of this petition and has joined in the prayer thereof. 9. That the said premises are assessed for taxation in the sum of $ as appears by the official certificate hereto annexed marked Exhibit "C." 10. Your petitioner presents this petition to your Honorable Court under Section 6 of the Revised Price Act of 1917, for the confirmation of said sale and the appointment of a trustee to make sale of the said premises and to receive and hold the pro- ceeds of said sale in trust for the parties in interest therein until FORMS 67 583 the termination of your petitioner's life estate and thereupon to pay over the principal sum to the person or persons entitled thereto. Wherefore your petitioner prays : 1. That said private sale to be confirmed. 2. That The Company , be appointed trustee to carry out the said sale and convey the said premises. 3. That the said The Company , be authorized, empowered and directed as such trustee to convey the said prem- ises hereinabove set forth to the said for the price or sum of $ , payable $ in cash and $ at the expiration of five years, secured by a bond and mortgage in the usual form with interest at 6 per cent, per annum, said mortgage of $ now on said premises with interest accrued thereon to be paid out of said purchase price at time of settlement, and to receive and hold the proceeds of such sale in trust for the parties in interest therein and' invest the same in investments authorized by law and pay the interest thereof as it shall accrue to for life until the said life estate shall have terminated and thereupon to pay over the principal sum to the person or persons entitled to such remainder, the title of the purchaser to be indefeasible by any persons, ascertained or unascertained, or any person or class of persons mentioned in this petition or decree and having a present or expectant interest in the premises and unprejudiced by any error in the proceedings of the Court. And your petitioner will ever pray, &c. State of Pennsylvania, County of Philadelphia, j.y.- being duly sworn according to law, deposes and says that he is the petitioner herein and that the facts set forth in the foregoing petition are true to the best of his knowledge, informa- tion and belief. Sworn to and subscribed before me this day of , 192 1. 584 FORMS 67 JOINDER. I, the undersigned, being the only party interested in the prem- ises referred to in the foregoing petition, other than your peti- tioner, hereby acknowledge that I have received notice of the intended presentation of foregoing petition and join in the prayer thereof. By Guardian. EXHIBIT "A. Commonwealth of Pennsylvania, City and County of Philadelphia, jj; Personally appeared , who, being duly sworn according to law, deposes and says that he is a real estate expert of years' experience, now engaged in business at ; that during said period he has been engaged in actively carrying on his profession in the County of Philadelphia ; that he is familiar with the values of real estate in the vicinity of the real estate referred to in the foregoing petition; that he has examined the premises therein described and as the result of said examination is of the opinion that the sum of $ , payable as in said peti- tion set forth, represents the full market value of the said prem- ises and is a greater price than could be obtained for the same at public sale, and that a sale thereof at the said price would be to the best interest and advantage of said estate. Sworn to and subscribed before me this day of , 1921. In the Orphans' Court of Philadelphia County. In the matter of the estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of , 192 1, upon con- sideration of the annexed petition and on motion of , attorneys for the petitioner, it appearing that it will be to the interest and advantage of the estate of , a minor, and all FORMS ej 585 parties interested in the estate of , deceased, that the said premises, to wit (description) : under and subject to certain building restrictions therein men- tioned and also subject to the payment of a certain mortgage debt or principal sum of $ , together with interest thereon as therein mentioned, said premises being known as Street, Philadelphia, should be sold to for $ , payable $ in cash and $ at the expiration of five years, se- cured by a bond and mortgage in the usual form, with interest at 6 per cent, per annum, said mortgage of $ now on said premises with interest accrued thereon to be paid out of said purchase price at time of settlement ; that the said sum of $ is a better price than could be obtained at public sale, that the same may be made without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which confer an immunity or exemption from sale or alienation. It is hereby ordered and decreed: 1. That the said private sale to be and the same hereby is confirmed. 2. That The Company , be and the same is hereby appointed trustee to carry out the said sale and convey the said premises. 3. That the said The Company , be and the same is hereby authorized, empowered and directed as such trustee to convey the said premises hereinabove set forth to the said for the price or sum of $ , payable $ in cash and $ at the expiration of five years, secured by a bond and mortgage in the usual form, with interest at 6 per cent, per annum, said mortgage of $ now on said premises with interest accrued thereon to be paid out of said purchase price at time of settlement and to receive and hold the proceeds of such sale in trust for the parties in interest therein and invest the same in investments authorized by law and pay the interest thereof as it shall accrue to , for life until the said life estate shall have terminated and thereupon to pay over the principal sum to the person or persons entitled to such remainder, the title of the purchaser to be indefeasible by any person, ascertained or unas- certained or any person or class of persons mentioned in the fore- going petition or this decree and having a present or expectant interest in the premises and unprejudiced by any error in the 586 FORMS (>1, 68 proceedings of the Court; security to be entered in the sum of $ , and the bond of the said The Company , is hereby approved as such security. By the Court : J- 68. PETITION UNDER THE REVISED PRICE ACT BY TRUSTEES FOR LEAVE TO SELL REAL ESTATE AT PRIVATE SALE AND BY A CO- TRUSTEE TO PURCHASE AT SUCH SALE. 202. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . Petition by Trustees for Leave to Sell Real Estate at Private Sale, and by Co-Trustee to Purchase at Such Sale. To the Honorable, the Judges of the Said Court : The petition of , Trustee, and — , substituted Trustee, under the last will of , deceased, respectfully represents : 1. That the said decedent, , died on the day of , having first made, published, and declared his last will and testament, a copy of which is annexed hereto as Exhibit "A," dated , duly probated in the office of the Register of Wills, of Philadelphia County, wherein and whereby he did devise and bequeath the residue of his estate to his trustees in trust after the death of his wife, , (she died ), to (recite terms of trust) : 2. That the decedent nominated the Company , and , as trustees and the said Company renounced its right to act as such trustee, and by decree of your Honorable Court dated , it was discharged as such trustee and was appointed substituted and co-trustee in its place and stead. That among the assets of the said decedent are premises Avenue, , Philadelphia, occupied and used in part by the said , trading as . That the said desires to purchase the said property from the estate for the price or sum of $ , but being a purchase FORMS 68 587 by a trustee at his own sale, the power of sale given the trustee under the will is inoperative and it is necessary that he obtain the approval of your Honorable Court in so doing. 3. That among the assets of the said estate are the following described parcels of real estate in the City of Philadelphia (de- scribe them) : 4. Parcels i to 9 hereinabove recited now comprise one lot of ground fronting feet on Avenue, and extending feet along Street, and are occupied by one large four-story brick building occupied by the . Parcels 10 and 16 to 20 inclusive, comprise one property front- ing on Street, and extending through to Street, feet, and are occupied by a stable and garage used in connection with the said . Parcels 11 to 15 above described are five small lots, each con- taining a two-story brick cottage with frame fronts and frame enclosed sheds set back from the street with front and side yards. In the property all the machinery, fixtures and equip- ment are owned by , individually as a part of the business of tho , of which he is sole proprietor. The real estate is rented in connection with the for $ per annum, at an annual rental of $ from which is payable taxes $ , and insurance $ . The stable and garage are rented in connection with the — for $ per annum, from which is payable taxes $ , and insurance $ . The 5 cottage properties on Street are now idle, but heretofore rented at $ per annum, from which has been payable taxes $ , insurance $ , and repairs on an average of $ — per annum, so that the total income from all sources derived from the real estate herein described has been $ , and the annual carrying charges $ per year, not including the interest on the mortgage of $ , held by the Trust Company on the said real estate at , so that the net rent of the properties clear of encumbrances would be $ per annum, which is on a valuation of $ . 5. Premises to Avenue (parcels i to 9), are assessed at $ , as shown by the official certificate hereto annexed as Exhibit "B." Premises Street (parcels 10 and 16 to 20), are assessed at $ , as shown by the official certificate hereto annexed as Exhibit "G." Premises 588 FORMS 68 Street (parcels ii to 15), are assessed at $ , as shown by the official certificate hereto annexed as Exhibit "D." 6. The said was survived by (recite parties) : 7. All of said parties in interest, the same being all the parties having any interest in this estate have received notice of the in- tended presentation of this petition, and have joined in the prayer thereof. 8. , one of your petitioners, as before set forth, is the proprietor of the , which occupies and uses most of the premises hereinabove described in connection with its business. The boilers used in connection with the were installed in , and are about worn out so that it is necessary to replace the same and for this purpose if the projierty is to continue under its present management it will be necessary to build a power house on parcels 11 to 15, fronting on Street, but the estate has no funds with which to make the necessary repairs, improvements and additions to the premises in order to continue them in tenantable condition for the uses and purposes to which they are now devoted. The said has, therefore, oflfered to buy the real estate hereinabove described, clear of encum- brance, for the price or sum of $ , $ in cash and the balance of $ to be secured by a mortgage in the usual form, payable at years at . A settlement on this basis will net the estate approximately $ per annum, as against a net rent on the present investment of $ . 9. While the trustees have a power of sale under the will of the said decedent, one of the trustees desires to purchase at his own sale, and it is necessary that the consent of your Honorable Court be secured thereto. 10. Subject, therefore, to the approval of your Honorable Court, the premises hereinabove described together with the build- ings and improvements thereon erected have been sold at private sale to , for the price or sum of $ , clear of encum- brance, from which is to be paid the existing mortgage of $ , purchase price to be payable $ in cash and the balance at the expiration of years, to be secured by the bond and mortgage of the purchaser in the usual form at . 11. Your petitioners as trustees for the reasons hereinabove set forth are of the opinion that the price offered for the said real estate is full and fair and better than could be obtained for the FORMS 68 589 same at public sale, and that it would be for the best interest and advantage of the estate of , and the parties interested therein, that the said sale be consummated in accordance with the terms hereinabove set forth, because the price offered is better than could be obtained at public sale, and that the sale may be made without injury or prejudice to any trust, charity, or purpose for which the same is held and without violation of any law which may confer an immunity or exemption from sale or aliena- tion. 12. Your petitioners have been assured by two real estate ex- perts, unrelated to the parties, and unconnected with the estate, and having no interest whatever in the subject matter of this petition, and the said experts, being experienced in the values of property in the neighborhood of those hereinabove referred to, are of opinion that the price offered for the same as a whole is full and fair and better than could be obtained at public sale, and affidavits to this effect are hereto annexed as Exhibits "E" and "F." 13. That all parties interested in the said estate as hereinabove set forth are satisfied that the price offered for the said premises is a full and fair one and better than could be obtained at public sale, and that the acceptance of the same will be for the best interest and advantage of the said estate. 14. , one of your petitioners, therefore, prays your Hon- orable Court for leave and authority to purchase the premises hereinbefore set forth which are described as a whole as follows (description) : from the estate of , for the price or sum of $ , pay- able as aforesaid; and , substituted trustee under the will of , deceased, one of your petitioners, prays your Honor- able Court for leave and authority to sell and convey the said premises, , for the price or sum of $ , payable as hereinabove set forth, said conveyance to vest the title in the purchaser in fee simple, freed and discharged of all trusts, con- tingencies and remainders, and indefeasible by any party or per- sons having a present or expectant interest therein in accordance with the Act of Assembly in such case made and provided. And your petitioners will ever pray, etc. 590 FORMS 68 State of Pennsylvania, City of Philadelphia, m; 1 and , being duly sworn according to law, depose and say that they are the petitioners herein and that the facts set forth in the foregoing petition are true and correct to the best of their knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. (Signatures.) JOINDER. We, the undersigned, being all the parties interested in the premises referred to in the foregoing petition, hereby acknowl- edge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. EXHIBIT "E." Commonwealth of Pennsylvania, City and County of Philadelphia, ss: Personally appeared , who, being duly sworn according to law, deposes and says that he is a real estate expert of years' experience; that he is now engaged in business in Phila- delphia; — — — , that during the period above mentioned he has been actively engaged in carrying on his profession in the City and County of Philadelphia; that he is familiar with the values of real estate in the vicinity of the premises referred to in the foregoing petition ; that he has examined the premises therein described and values them as follows (description of valuation) : and as a result of said examination is of the opinion that the sum of $ , payable $ in cash, and $ at the expira- tion of three years, secured by bond and mortgage in the usual form, at 6 per cent, per annum represents the full market value of the said premises, and is a greater price than could be obtained for same at public sale, and that a sale thereof at the said price would be to the best interests and advantage of the said estate. Sworn to and subscribed before me this day of , 1921. FORMS 68 591 In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . DECREE. And Now, the day of , on consideration of the foregoing petition and affidavits thereto annexed, it appearing that all of the cestuis que trustent and parties in interest have joined therein, and on motion of , counsel for the peti- tioners, it appearing that it will be to the interest and advantage of the trust under the will of the said , deceased, as well as to the interest and advantage of the said cestuis que trustent and all other parties in interest thereunder that the premises described in the foregoing petition, to wit, (description) : should be sold to , for the sum of $ , of which sum $ shall be secured by a purchase money mortgage on the above described premises as hereinafter set forth, and that the said price of $ is a better price than the same would bring at public sale,, and it further appearing that the same may be done without injury or prejudice to any trust, charity or purpose for which the same is held and without the violation of any law which may confer immunity or exemption from sale or alienation ; It is ordered and decreed that , trustee, and , sub- stituted trustee under the will of , deceased, be and they are hereby authorized and empowered to sell and convey the said premises to the said , as an individual, for the price of $ , payable as follows : in cash the sum of $ , and the balance of $ to be secured by bond and mortgage in the usual form, payable at the expiration of years from the date thereof with interest thereon at per centum per annum, payable half yearly, said bond and mortgage to be given and executed by the said as an individual to , trustee and , substituted trustee under the will of . deceased, the said bond and mortgage to be held by the said trustees under the same trust and for the same uses and purposes and subject to the same rights, title and estate as the said prem- ises have heretofore been held by the said trustees, with authority in the said trustees to pay out of the said settlement the present mortgage debt or principal sum of $ , now a valid and subsist- ing lien on the said premises, with interest thereon to the date of 592 FORMS 68 settlement, the title of the purchaser to be a fee simple title, inde- feasible by any party or persons having a present or expectant interest in the said premises, and unprejudiced by any error in the proceedings of the Court; the said trustees as aforesaid, first entering security as hereinafter directed. And it is further ordered and decreed that the said , one of the trustees as aforesaid, be authorized and permitted to pur- chase the above described premises from , trustee, and , substituted trustee as aforesaid, for the sum of $ , first paying the sum of $ in cash, and executing and deliv- ering to the said , trustee, and , substituted trustee as aforesaid, his purchase money bond and mortgage in the just sum of $ , in the usual form and containing provisions pro- viding for the payment of all taxes, water rents, insurance pre- miums and commissions, and having also previously delivered to the said , trustee, and , substituted trustee as afore- said, fire insurance policies in approved companies with the usual mortgagee clause thereto attached, in the sum of at least $ ; said bond and mortgage to be secured not only upon the above described premises, but also upon any addition thereunto made, and upon all boilers, engines, machinery and equipment now or hereafter belonging to the said , the mortgagor, located upon the abovd described premises or upon any addition or addi- tions hereinafter erected on said premises ; and upon his so doing to hold the said premises and any additions thereto, free and clear of any trusts for the estate of the said , deceased, for any parties or persons having a present or expectant interest in said premises or additions and unprejudiced by any error in the proceedings of the Court. And it is further ordered and decreed that , trustee, and , substituted trustee as aforesaid, are hereby authorized and empowered to execute and deliver to the purchaser, , as an individual, a deed of conveyance in fee simple, indefeasible by any party or persons having a present or expectant interest in the said premises and unprejudiced by any error in the proceed- ings of the Court upon full compliance upon the part of the pur- chaser with the terms and conditions of the sale as hereinabove set forth. FORMS 68, 69, 70 593 The said , trustee, and , substituted trustee as aforesaid, are directed to enter security in the sum of $ . By the Court : J- 69. ELECTION OF WIDOWER TO TAKE UNDER WILL. 245. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . To Whom it May Concern: I, , widower of the above decedent, who died on the day of , having first made, pubHshed and declared her last will and testament, duly probated in the office of the Register of Wills of Philadelphia County, on , hereby elect to take under the terms of the said will. In Witness Whereof I have hereunto set my hand and seal this day of , A. D. . -(Seal) Philadelphia County, j.y; On this day of , A. D. , before me the subscriber, a notary public in and for the Commonwealth of Pennsylvania, residing in the City of Philadelphia, personally appeared , and acknowledged the foregoing election to be his act and deed and desired that the same might be recorded as such. Witness my hand and notarial seal the day and year last above written. Notary Public. 70. ELECTION OF WIDOW TO TAKE AGAINST WILL. 245. In the Orphans' Court for the County of Philadelphia. In re Estate of — — — , deceased. Term, , No. . NOTICE OF ELECTION. To The Trust Company, Executor of last will and testa- ment of the said decedent. 38 594 FORMS 70, 71 To Register ofl Wills and Clerk of the Orphans' Court of Phila- delphia. To Legatees, Devisees and Creditors of the above Estate. You will please take notice that I, , widow of the said , deceased, do hereby elect to take against the will of the said decedent, and in lieu thereof to take and receive my share of said estate under the Intestate Laws, and would request you to record and file this notice in accordance with the Act of As- sembly in such case made and provided. (Seal) Commonwealth of Pennsylvania, City and County of Philadelphia, ss: ( )n tliis day of , before me the subscriber, a Notary Public in and for the Commonwealth of Pennsylvania, and residing in , personally appeared the above named , widow of , deceased, and in due form of law acknowledged the said notice of her election to be her act and deed for the purposes therein mentioned, and desired that the same might be recorded as such. Witness my hand and Notarial seal the day and year aforesaid. 71. PETITION TO THE REGISTER TO REVOKE LETTERS OF ADMINISTRATION UPON THE DISCOVERY OF A WILL 264. In the Register's Court of Philadelphia County. Estate of ■ — , deceased. Administration No. . PETITION TO REVOKE LETTERS OF ADMIN- ISTRATION. To the Honorable, , Register of Wills, of Phila- delphia County: The petition of Trust Company respectfully rep- resents : I. That , a citizen of the United States of America, and resident of Philadelphia County, State of Pennsylvania, departed this life at No. Street, in the County of Philadelphia, and State of Pennsylvania, on or about , the day of 2. That the said was buried on the afternoon of FORMS 71 595 3. That on , the Register of Wills of Philadelphia County, granted letters of administration on the estate of to , upon a petition presented by her, stating that said had died intestate, and that she, , was his widow and sole heir. 4. That at least two short certificates have been issued by the Register to said . 5. That the said left a last will and testament, which was found in his safe deposit box at the Trust Company, when opened by your petitioner, at request of and in the presence of , to look for a will. 6. That said last will and testament, a copy of which is hereto annexed, has been duly filed with the Register by your petitioner. 7. That in and by said last will and testament, the decedent nominated, constituted and appointed your petitioner, Trust Company, his executor. And your petitioner therefore prays that citation should be issued to said , to show cause why letters of administra- tion should not be revoked. And your petitioner will ever pray, &c. Trust Company, Per Trust Officer. County of Philadelphia, ss: being duly sworn, deposes and says : I am Trust Officer of Trust Company, the above petitioner, and am authorized to make this aflfidavit oni its behalf, and that the facts set forth are true to the best of my knowledge, information and belief. Sworn and subscribed to before me this day of , 1920. (Signature.) DECREE. And Now, to wit, this day of , on consideration of the within petition and on motion of , attorneys for the petitioner it is hereby ordered and decreed that a citation issue directed to , individually and as administratrix of the estate of , deceased, to show cause why letters of admin- 596 FORMS 71, 72 istration heretofore issued to her, No. , of , on , should not be revoked and the last will and testament of the said dated , be probated and letters testa- mentary thereon granted to the Trust Company, the executor named therein, returnable . Register of Wills of Philadelphia County. 7a. PETITION TO REGISTER FOR CITATION ON PARTY IN CUSTODY OF WILL TO PRESENT SAME FOR PROBATE OR ON FAILURE THERE- OF TO SHOW CAUSE WHY LETTERS OF AD- MINISTRATION SHOULD NOT BE GRANTED. 267. In re Estate of , deceased. Term, , No. — — -. PETITION FOR CITATION FOR LETTERS TESTA- MENTARY OR OF ADMINISTRATION. To the Honorable , Register of Wills of County : The petition of , respectfully represents : 1. , the above decedent, died on the day of , while temporarily sojourning in . 2. At the time of the death of the said decedent his family residence was at , Pennsylvania. 3. The said decedent was survived by no children or issue of deceased children and your petitioner, his widow, is his sole heir. 4. Prior to the death of the said decedent, to wit, on the day of — , he made, published and declared his last will and testament, a copy of which is annexed hereto, wherein and whereby he appointed , his father, of , New York, Executor of his estate. 5. The said decedent at the time of his death was seized of certain personal property, to wit : money on deposit in the Trust Company and stock in the Building and Loan Asso- ciation, to collect which it is necessary that letters be granted in this jurisdiction. 6. That the said , executor nominated under the will of the said decedent has neglected and refused and still neglects and refuses to qualify as executor. The said has in his FORMS 72 597 possession the will of said decedent and has neglected and refused and still neglects and refuses to produce the same before you for probate. Wherefore your petitioner prays that a citation may issue directed to the said , to show cause why he should not appear before the Register of Wills of County, Pennsyl- vania, with the will of said decedent and qualify as executor of the estate of the said , deceased, failing which, to show cause why letters of administration should not be granted to , widow of the said decedent to administer the assets of the said decedent in Pennsylvania. And your petitioner will ever pray, etc. State of , County of , ss: being duly sworn according to law, deposes and says that she is the petitioner herein and that the facts set forth in the foregoing petition are true to the best of her knowledge, infor- mation and belief. Sworn to and subscribed before me this day of , 1921. DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the foregoing petition and on motion of , Esq., attorney for the petitioner. It is hereby ordered and decreed that the prayer thereof be granted and that a citation issue to , of , New York, to show cause why he should not appear before the Register of Wills of County, Pennsyl- vania, and produce the will of , deceased, and qualify as executor of the estate of the said . deceased, failing which, to show cause why letters of administration should not be granted to — widow of the said decedent to administer the assets of the said decedent in Pennsylvania. By the Court : J- 598 FORMS 73 73. PETITION TO THE ORPHANS' COURT SUR AP- PEAL FROM REGISTER TO OPEN THE PRO- BATE OF A WILL AND ALLOW PROBATE OF AN AFTER-DISCOVERED CODICIL. 285. In the Orphans' Court of Philadelphia County. In the matter of the estate of , deceased. Term, , No. . PETITION SUR APPEAL FROM REGISTER TO OPEN PROBATE OF WILL AND ALLOW PROBATE OF CODICIL. To the Honorable, the Judges of the Said Court: The petition of The Company, , respectfully represents : 1. That the decedent died on the day of , a resi- dent of Philadelphia County, having first made, pubUshed and declared her last will and testament dated , and codicil thereto dated , which were duly probated by the Register of Wills, of Philadelphia County, on , and letters testa- mentary issued thereunder to your petitioner. Copy of said will and codicil are hereto annexed as Exhibit "A." 2. Since the probate of the said will and codicil an additional jodicil has been found by your petitioner dated , a copy of which is annexed hereto as Exhibit "B." 3. Under the said will and first codicil, a statement of the parties in interest is as follows (list all parties in interest) : 4. All of said parties in interest are living except as above noted and are of full age with the exception of , a minor of whose estate, by decree of the Orphans' Court of Delaware County, dated , , has been appointed guardian ad litem to appear in these proceedings and is a minor of whose estate The Company — ■ — , was appointed guardian by the Orphans' Court of Philadelphia County, on , as of 1 Term, , No. . 5. In order to secure the probate of the said codicil dated an appeal has been taken to your Honorable Court from the decision of the Register of Wills in the above estate, admitting to probate the said will dated , and codicil thereto dated FORMS 7Z 599 6. All parties in interest as above set forth have received notice of the intended presentation of this petition and have joined in the prayer thereof. Wherefore your petitioner prays that the said appeal be sus- tained and that a decree be entered authorizing and directing the Register of Wills of Philadelphia County, to admit to probate the said codicil dated , the original of which is now lodged of record in the office of the Register of Wills. And your petitioner will ever pray, etc. The Company, . By State of Pennsylvania, County of Philadelphia, J.?.- , being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. JOINDER. We, the undersigned, being all the parties interested in the estate of , deceased, acknowledge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. DECREE. And Now, to wit, this day of , upon considera- tion of the foregoing petition and upon motion of , attor- neys for the petitioner. It is hereby ordered and decreed that the prayer thereof be granted and the appeal of The Com- pany , from the decision of the Register of Wills in the estate of , admitting to probate a certain paper writing, being the last will and testament of the said decedent dated , and codicil thereto dated , is hereby sustained and the Register of Wills of Philadelphia County is hereby authorized. 6oo FORMS 73, 74 empowered and instructed to admit to probate a second codicil to the said will dated , upon legal proof of the proper ex- ecution of the same. By the Court : J. 74. PETITION FOR THE APPOINTMENT OF AN AD- MINISTRATOR D, B. N. C. T. A. WHERE THE DECEDENT HAS BEEN DEAD MORE THAN TWENTY-ONE YEARS. 356. In the Orphans' Court for the County of Philadelphia. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of respectfully represents : 1. The , late of the County of Philadelphia, died , 1866, having first made and published his last will and testament, wherein and whereby he appointed , Executors, to whom letters testamentary were duly granted by the Register of Wills. A copy of said will is hereto annexed. 2. That the said executors duly administered the said estate which came into their hands and have since died. 3. The residuary estate of decedent is held under this trust (give terms of will and outline parties in interest) : All of such parties thus entitled have received notice of the presentation of this petition and have joined in the prayer thereof. 5. Certain assets belonging to said estate not administered by the executors hereinabove referred to have now come to the attention of your petitioner, wherefore it is necessary that an administrator be appointed to administer same. Wherefore your petitioner, showing to your Honorable Court that the said having died more than twenty-one years ago and that letters of administration de bonis non cum testamento annexe can only be granted upon his estate by the Register of Wills of Philadelphia County, when so authorized and directed by your Honorable Court, pray your Honorable Court to authorize the said Register of Wills of Philadelphia County, to grant letters FORMS 74, 7S 6oi of administration de bonis non cum testamento annexe to such person or persons as are now entitled to the same in accordance with the Act of Assembly in such case made and provided. And your petitioner will ever pray, etc. County of Philadelphia, .y.?.- , being duly sworn according to law, deposes and says that she is the petitioner above named and that the facts set forth in the foregoing petition are true and correct to the best of her knowledge, information and belief. Subscribed and sworn to before me this day of , 1918. Notary Public. JOINDER. We, the undersigned, being all the parties interested in the estate of , deceased, hereby acknowledge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. (Signatures.) DECREE. And Now, to wit, this day of , upon considera- tion of the foregoing petition and on motion of , attornev.e for petitioner, it is ordered, adjudged and decreed that the prayer of the said petition be granted, and the Register of Wills of Philadelphia County, be and he is hereby authorized to grant letters of administration de bonis non cum testamento annexo on said estate of , deceased, to such person or persons as may be entitled thereto under the Act of Assembly of the Com- monwealth of Pennsylvania, in such case made and provided. J- 75. PETITION BY GUARDIAN FOR REDUCTION OF SECURITY ON HIS BOND. 389. In the Orphans' Court of Philadelphia County. In re Estate of , minors. Term, , No. . 6o2 FORMS 75 To the Honorable, the Judges of the Said Court: The petition of , guardian of the estates of , minors, respectfully represents; 1. That your petitioner was duly appointed guardian of the estates of the above minors by decree of your Honorable Court, dated , wherein security was directed to be entered in the sum of $ . 2. That the amount of this security was fixed upon the incor- rect presumption that each of said minors would be entitled to approximately $ as their proportionate share of the estate of , deceased. 3. Schedules of distribution have now been filed in connection with the three adjudications of the Honorable , sur the trust accounts filed in the estate of deceased, as of , and it now appears that each minor is entitled to the sum of $ , or a total of $ . 4. Wherefore your petitioner prays that the security directed to be entered by him be reduced from $ to $ . And he will ever pray, etc. Guardian of the Estates of , Minors. Sla'e of Pennsylvania, County of , i'j.' , being duly sworn according to law, deposes and says that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. JOINDER. I, the undersigned, , mother and next of kin of the said minors, hereby acknowledge that I have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. And Now, to wit, this FORMS 7S, 76 603 DECREE. day of — , upon considera- tion of the foregoing petition, It is hereby ordered and decreed that the security heretofore required to be entered by , guardian of the estates of , minors, in the aggregate sum of $ , is hereby reduced to the sum of $ , and that one bond be filed by the said guardian and the Surety Company, of , is hereby approved as surety on the said bond. By the Court : J- 76. PETITION FOR WIDOW'S EXEMPTION IN CASH. 403. In the Orphans' Court for the County of Philadelphia. In re Estate of , deceased. Term, , No. . PETITION FOR WIDOW'S EXEMPTION. To the Honorable, the Judges of the Said Court: The petition of , respectfully represents : 1. That departed this life on the day of , leaving to survive him , his widovir, your petitioner, and one child, , who is of full age, the said decedent having first made and published his last will and testament dated , copy of which is attached hereto, duly probated in the office of the Register of Wills for the County of Philadelphia, and letters testamentary upon his estate were granted to The Com- pany , the alternative executor named in said will, , and , the other executors, having predeceased the testator. 2. That your petitioner has elected to retain as widow of the said , deceased, from and out of the personal property of the said decedent the sum of $500 in cash, and prays that the said sum may be set apart and awarded to her under Sec. 12 of the Fiduciaries Act of June 7, 1917, P. L,. 447. And your petitioner will ever pray, etc. Petitioner. 6o4 FORMS 76, "iy County of Philadelphia, jj; , being duly sworn according to law, deposes and says that she is the petitioner above named and that the facts set forth in the foregoing petition are true and correct to the best of her knowledge, information and belief. Sworn to and subscribed before me this day of , A. D. 1919. Notary Public. Commission expires . In the Orphans' Court for the County of Philadelphia. In re Estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of , on presentation of proof of publication, and no exceptions thereto having been filed, It is ordered and decreed that the sum of, $500 be set apart for and retained by , widow of the said decedent, out of the cash belonging to the decedent at the time of his death. By the Court : J- 77. PETITION BY TRUSTEE FOR LEAVE TO EXE- CUTE A LEASE OF REAL ESTATE FOR TEN YEARS. 497. In the Orphans' Court of Philadelphia County. In re Estate o£ , deceased. Term, , No. — . To the Honorable, the Judges of the Said Court: The petition of the Trust Company, , under the will of , deceased, respectfully represents : I. That , late of the City and County of Philadelphia, died , having first made and published his last will and testament, duly probated in the office of the Register of Wills in and for the County of Philadelphia. FORMS n 605 2. In and by said will testator gave his residuary estate to your petitioner, in trust (recite terms of trust) : 3. (Here show the parties in interest.) 4. That among the assets of the residuary estate of the said decedent is the following described real estate, to wit: (descrip- tion) : 5. With the consent of the parties in interest and subject to the approval of your Honorable Court, your petitioner has agreed to execute a lease of the premises hereinabove described as of the day of , with , for the term of ten years, to commence and be computed from the day of , at the annual rent of $ , payable monthly in advance in equal payments of $ , on the first day of each and every month. Copy of the lease suggested is hereto annexed marked Exhibit "B." 6. The assessed value of the said premises is $ , and the estimated annual return on the assessed valuation of the prop- erty based on the said lease after deduction of fixed charges, amounts to $ per year, or a return of per cent. on the said value. 7. Your petitioner and all parties in interest who are sui juris beheve that the execution of the said lease will be to the best interest and advantage of the estate and all parties interested therein either presently or in remainder. 8. That all of the parties in interest as hereinabove set forth have joined in the prayer of this petition either individually or by their attorney duly appointed and constituted for the purpose by letter of attorney duly recorded. 9. Under section 31 of the Fiduciaries Act of 1917, it is neces- sary that your petitioner apply to your Honorable Court for leave and authority to execute the said lease so that the same shall have the same force and effect as though the said lease were made by the beneficial owner or owners of the said property and he or they were sui juris and owned the property in fee. Wherefore your petitioner prays for leave and authority to execute a lease of premises (describing them) : to for the term of ten years to commence and be com- puted from the day of , for the annual rent or sum of $ , payable monthly in advance, in equal payments of $ on the first day of each and every month, said lease to 6o6 FORMS 11 be substantially the same in form as set forth in Exhibit "B" attached hereto. And your petitioner will ever pray, etc. 1 Trust Company, Trustee under the Will of , deceased. By State of Pennsylvania, City and County of Philadelphia, ss: , being duly sworn according to law, deposes and says that he is of the corporation petitioner, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. We, the undersigned, being all the parties presently interested in the estate of , deceased, hereby acknowledge that we have received notice of the presentation of the foregoing peti- tion and join in the prayer thereof. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the annexed petition and on motion of , attor- neys for the petitioner, it appearing from the facts set forth in the said petition that it would be just and equitable to execute the lease therein set forth, the Court grants the prayer of said peti- tion and authorizes and empowers the Trust Company, Trustee under the will of , deceased, to execute a lease of premises (describe them) : to , for the term of ten years to commence and be com- puted from the day of , for the annual rent or sum of $ , payable monthly in advance in equal payments FORMS n, 78 607 of $ , op the first day of each and every month, said lease to be substantially the same in form as set forth in Exhibit "B" attached hereto, with the same force and effect as though the said lease were made by the beneficial owner or owners and he or they were sui juris and owned the property in fee; security to be entered in the sum of $ , and the bond of the said Trust Company is hereby approved as such security. By the Court : J. 78. PETITION BY TRUSTEE FOR LEAVE TO JOIN IN THE EXECUTION OF LEASE OF COAL AND MINERAL RIGHTS FOR A PERIOD EXCEED- ING FIVE YEARS 497, 624. In the Orphans' Court of Schuylkill County. In the matte:^ of the Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of The Company, , and , surviving trustees under the will of , deceased, respect- fully represents: 1. That , late of the City of Philadelphia, Pennsylvania, died on the day of , having first made, published and declared his last will and testament dated , duly pro- bated in the office of the Register of Wills of Philadelphia County, a copy of said will being hereto annexed as Exhibit "A." 2. Decedent, by his will (recite terms of trust) : 3. (Recite parties in interest.) 4. Among the assets of the residuary estate of the said dece- dent is an undivided interest in a certain tract of coal land known as the , situated in Township, County, Pennsylvania, and an entire interest in another tract of coal land known as the , also situated in said township and State. 5. Subject to the approval of your Honorable Court your petitioners have agreed to lease the interest of the said estate in the said coal tracts to the Coal Company, a Pennsyl- vania corporation, for a period exceeding five years upon the 6o8 FORMS 78 terms and conditions set forth at length in copies of the said leases hereto annexed as Exhibits "B" and "C" respectively. 6. Your petitioners have been advised and believe that it will be to the best interest and advantage of the estate of the said decedent and those financially interested therein that they join with the other parties in interest in the leasing of the Tract and execute and deliver a lease to the Tract, said leases to be substantially similar in form to those hereinabove referred to, copies of which are annexed hereto and have agreed so to do, subject to the approval of your Honorable Court, but under the terms of Sec. 31 of the Fiduciaries Act of 191 7, they have no authority to do so without the consent of your Honor- able Court first had and obtained. 7. All parties in interest under and by virtue of the terms of the will of the said decedent have received notice of the intended presentation of this petition and have joined in the prayer thereof. 8. Wherefore your petitioners pray your Honorable Court for leave and authority to join with the other parties in interest in the execution of a lease substantially similar in form to that annexed hereto as Exhibit "B", to the Coal Company, covering the Tract in Township, County, Pennsylvania, and to execute and deliver a lease substantially similar in form to that annexed hereto as Exhibit "C" to the ■ Coal Company, covering the Tract in Township, County, Pennsylvania. And your petitioners will ever pray, etc. The Company, . By- Surviving Trustees under the Will of , deceased. State of , County of , J.S-.' being duly sworn according to law, deposes and says that he is of the corporation petitioner, and that the facts set forth therein are true to the best of his knowledge, informa- tion and belief. Sworn to and subscribed before me this day of , 1920. FORMS 78, 79 609 JOINDER. We, the undersigned, being all the parties in interest in the estate of , deceased, hereby acknowledge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. ( Signatures. ) DECREE. And Now, to wit, this day of , 192 , upon consideration of the foregoing petition, it appearing that it will be to the interest and advantage of the estate of , that the leases hereinafter referred to should be executed and it appearing that the said leases may be made without injury or prejudice to any trust, charity or purpose for which the premises therein let are held and without the violation of any law which may confer an immunity or exemption from sale or alienation, It is hereby ordered and decreed that The Company, and , surviving trustees under the will of , deceased, be and the same are hereby authorized and empowered to join with the other parties in interest in the execution and delivery of a lease substantially similar in form to that annexed hereto to the Coal Company covering the Tract in Township, County, Pennsylvania, and It is hereby ordered and decreed that The Company and be and the same are hereby authorized and empowered to execute and deliver a lease substantially similar in form to that annexed hereto to the Coal Company covering the Tract in Township, County, Pennsylvania ; security to be entered in the sum of $ , and the bond of the said The Company , is hereby approved as such security. By the/ Court : J- 79. PETITION BY TRUSTEE FOR LEAVE TO PUR- CHASE REAL ESTATE WITH UNINVESTED PRINCIPAL. 529. In the Orphans' Court for the County of Philadelphia. In re Estate of , deceased. Term, , No. . 39 6lO FORMS 79 To the Honorable, the Judges of the Said Court: The petition of The Company , Trustee under the will of , deceased, respectfully represents: I. died on the day of , by his will, (a copy of which is attached hereto as Exhibit "A") on the death of his wife , and the attaining of his youngest child of the age of twenty-one, he directed (recite terms of trust) : 2. (Recite parties in interest.) 3. By adjudication of your Honorable Court dated , one-seventh of the fund was set aside to your petitioner in trust under the terms of said will for , daughter of the dece- dent, which fund now amounts to approximately $ . 4. The said life tenant, , is the lessee of premises No. Road, which has been occupied by her as her home for a number of years. She has recently been advised by the owners of said property that it is their intention to sell the same and because of the above facts, has requested your petitioner to pur- chase the said premises, more particularly hereinafter described, out of the moneys held in its hands as aforesaid for her benefit for life. 5. Your petitioner has, therefore, acting under and by authority of Section 41 (a) 2 of the Fiduciaries Act of 1917, and subject to the approval of your Honorable Court, entered into an agree- ment to purchase from , the owners thereof : (description) : for the price or sum of $ in cash. Title to the above premises to be good and marketable, free and clear of all encumbrances, liens, etc., and such as will be insured by the Trust Company of the City of Philadel- phia, at their usual rates, subject, nevertheless, to the following conditions and restrictions (recite conditions and restrictions) : 6. Your petitioner is informed and believes that the purchase of the said property, in view of the circumstances hereinbefore referred to, will be to the best interest and advantage of the estate of the said for whom your petitioner is Trustee and no change will be made in the course of succession by said investment as regards the heirs and next of kin of the cestui que trust and furthermore, such investment will not be contrary to the provisions contained in the said will. 7. Your petitioner has been assured by two disinterested real estate experts of the City of Philadelphia, familiar with values of FORMS 79 6ii real estate in the vicinity of the premises hereinabove referred to, that the said price of $ for the premises herein described, is a fair one and that the same is a just and true valuation thereof and represents its present market value. Their affidavits to this effect are hereto annexed marked respectively Exhibit "B" and Exhibit "C." 8. The said premises are assessed for taxation by the City of Philadelphia in the sum of $ , as will appear from the certificate by the Board of Revision of Taxes hereto annexed marked Exhibit "D." 9. That the only parties interested as life tenants and in re- mainder in the said trust are , who is living and of full age and his one child to wit : , who is living and of full age and has no children. Both of said parties are earnestly desirous that the said sale shall be consummated. They have received notice of the intended presentation of this petition and have joined in the prayer thereof. Your petitioner, therefore, prays your Honorable Court for leave and authority as trustee under the will of , deceased, to purchase and acquire title in fee simple to the premises here- inabove described, known as from , under and subject to the restrictions hereinabove set forth and upon the execution of a good and sufficient deed for the said premises to pay the said the said price or sum of $ . And it will ever pray, &c. The Company , Trustee under the will of , deceased. By Commonwealth of Pennsylvania, City and County of Philadelphia, ss: Personally appeared , Trust Officer of said petitioner, who being duly sworn, deposes and says that the statements contained in the foregoing petition are true, to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1919. 6i2 FORMS 79 JOINDER. We, the undersigned, being the only parties interested as life tenants and remainderman under the will of , deceased, in the trust referred to in the foregoing petition, hereby acknowl- edge that we have received notice of the intended presentation of the said petition and join in the prayer thereof. (Signatures.) EXHIBIT "B." Philadelphia County, jj.' On this day of , 191 , personally appeared before mq , who being duly , says that he is a real estate broker, residing in the City of Philadelphia; that he has for years been largely interested and engaged in the business of dealing in real estate in the City and County of Philadelphia, in the neighborhood in which the premises described in the foregoing petition are located ; that he is familiar with the values of real estate in said locality ; that he knows said premises well and that in his opinion the price or sum of $ , indi- cated in said petition as being the present value of said premises is a just and true valuation thereof, and that the same in his opinion represents their present market value. to and subscribed before me this day of , 1919. Notary PubUc. My commission expires on the day of , 1919. DECREE. And Now, to wit, this day of , 1919, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioner. It is hereby ordered and decrttd that the prayer thereof be granted and that The Company , Trustee under the will of , deceased, for , is hereby authorized and empowered to purchase and acquire from a fee simple title in (description) : subject, nevertheless, to the following conditions and restrictions: (recite conditions and restrictions) : and upon the execution and delivery of a good and sufficient deed FORMS 79, 80 613 for the said premises to pay to the said therefor, the price or sum of $ . By the Court : J- 80. PETITION BY TRUSTEE FOR LEAVE TO PUR- CHASE REAL ESTATE REQUIRING AN IN- VESTMENT OF AN AMOUNT LARGER THAN THAT AUTHORIZED BY THE WILL. 529. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of , surviving trustee under the will of , deceased, respectfully represents : 1. That died , having first made, pubhshed and declared her last will and testament dated (copy of which is annexed hereto as Exhibit "A"), duly probated in the ofBce of the Register of Wills of Philadelphia County, on , whereunder and whereby she provided inter alia as follows : (recite terms of trust) : 2. Under said will your petitioner and were appointed trustees. The said died on the . 3. The said life tenant is living and intermarried with one , and they have but one child, to wit, , a minor for whom The Company , is guardian. 4. The said has requested your petitioner to purchase for her use as a residence and home, a certain three-story stone dwelling and two-story two-car garage at the corner of Avenue and Avenue, Township, County, Pennsylvania, known and described as follows : (descrip- tion) : 5. The said premises can be purchased for the sum of $ , payable $ in cash and $ by the assumption of one or more mortgages in the usual form, bearing interest at the rate of 6 per cent, per annum and due at the expiration of three years. 6. Your petitioner has been assured by two disinterested real estate experts familiar with the value of property in the vicinity 6i4 FORMS 80 of the premises in question that the said price is a reasonable one and less than would have to be paid at public sale. 7. Your petitioner is informed and believes that the purchase of the said property, in view of the circumstances hereinbefore referred to, will be to the best interest and advantage of the estate of the said for whom your petitioner is trustee, and no change will be made in the course of succession by said investment as regards the heirs and next of kin of the cestui que trust and furthermore, such investment will not be contrary to the provisions contained in the said will. 8. The only parties interested in the said trust as hereinabove set forth, to wit, and The Company , Guardian of , have received notice of the intended presen- tation of this petition and have joined in the prayer thereof. 9. While your petitioner has the power under the said will, if the said should desire, that a house should be purchased for herself "to use the funds of her share of the trust estate to an amount not exceeding $ for such purchase," and though your petitioner deems it to be advisable to make such purchase, yet under the terms of the will he has not the power to make such purchase incumbered by a mortgage and therefore, having in hand certain moneys, the principal or capital whereof is to remain in his possession and under his control, acting under and by authority of Section 41 (a) 2 of the F"iduciaries Act of 1917, prays your Honorable Court for leave and authority as surviving trustee under the will of (his co-trustee having died as above set forth), to purchase and acquire title in fee simple to the premises hereinabove described under and subject to the restrictions hereinabove set forth and under and subject to a mortgage or mortgages aggregating $ in the usual form with interest at 6 per cent, due at the expiration of three years and upon the execution of a good and sufficient deed for the said premises, to pay therefor the said price or sum of $ in cash and thereafter to hold title to the same under the uses and trusts and with the powers conferred in and by virtue of the terms of the said will. And your petitioner will ever pray, &c. Surviving Trustee under the Will of , deceased. FORMS 80 615 State of , County of , ss: being duly sworn according to law, deposes and says that he is the surviving trustee under the will of , deceased, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. JOINDER. We, the undersigned, being the only parties interested as life tenants and remaindermen under the will of , deceased, in the trust referred to in the foregoing petition, hereby acknowl- edge that we have received notice of the intended presentation of the said petition and join in the prayer thereof. EXHIBIT "B." County, ss: On this day of 1920, personally appeared before me , who being duly , says that he is a real estate broker ; that he has for years been largely interested and engaged in the business of dealing in real estate in the neighbor- hood in which the premises described in the foregoing petition are located; that he is familiar with the values of real estate in said locality; that he knows said premises well and that in his opinion the price or sum of $ •, indicated in said petition as being the present value of said premises is a just and true valuation thereof, and that the same in his opinion represents their market value and a less sum than would have to be paid for said premises, provided the same could be sold at public sale. to and subscribed before me this day of , 1920. DECREE. And Now, to wit, this day of , upon considera- tion of the foregoing petition and on motion of , attorneys for the petitioner, It is hereby ordered and decreed that the prayer thereof be granted and that , surviving trustee under the will of , deceased, is hereby authorized andl empowered to purchase and acquire a fee simple title in: (description) : 6l6 FORMS 80, 81 and to hold title to the same upon the uses and trusts and with the powers conferred upon him under the will of the said , and upon the execution and delivery of a good and sufficient deed for the said premises, to pay therefor the price or sum of $ and take title thereto under and subject to one or more mortgages aggregating $ , due at the expiration of three years with interest at 6 per cent. By the Court : J- 81. PETITION BY CREDITOR FOR CITATION ON EXECUTOR TO FILE AN ACCOUNT. 539. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the said Court: The petition of respectfully represents : 1. That died on , a resident of Philadelphia County, having first made, published and declared her last will and testament dated the day of , duly probated in the office of the Register of Wills of Philadelphia County, on , being Will No. , duly recorded in Will Book , page , wherein and whereby the said decedent did appoint her son, , of Street, Philadelphia, Executor to whom letters testamentary were duly granted by the said Register on the date aforesaid. 2. As set forth in the petition for letters testamentary the dece- dent died seized of personal property of the value of $ , and real estate, to wit: Street, Philadelphia, of a value of $ . 3. No inventory has been filed by the said Executor, nor has he filed any accounting of his executorship in the office of the Register of Wills as required by law, though repeatedly requested so to dd by your petitioner. 4. Your petitioner is an undertaker engaged in business at Street, Philadelphia. 5. Your petitioner, at the request of the said Executor, attended to the burial of the said decedent and there is justly due and FORMS 8i 617 owing to your petitioner a balance of $ on account of the cost of said burial. 6. The said Executor, , though repeatedly requested so to do by your petitioner has neglected and refused and still neglects and refuses to pay the said balance of $ due your petitioner as aforesaid. Wherefore your petitioner prays your Honorable Court for a citation directed to the said , Executor of the estate of , deceased, to show cause why he should not forthwith file an account as such Executor in the office of the Register of Wills of Philadelphia County, as required by law. And your petitioner will ever pray, etc. State of Pennsylvania, County of Philadelphia, jjr; being duly sworn according to law, deposes and says that he is the petitioner herein and that the facts set forth in the foregoing petition are true and correct to the best of his knowl- edge, information and belief. Sworn to and subscribed before me this day of , 1921. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of ,1921, upon con- sideration of the annexed petition and on motion of , attor- ney^ for the petitioner, It is hereby ordered and decreed that the prayer thereof be granted and a citation is directed to be issued to , Executor of the estate of , deceased, to show cause why he should not forthwith file an account as such Ex- ecutor in the office of the Register of Wills of Philadelphia County, as required by law. Returnable sec. leg. By the Court : J- 6i8 FORMS 82 82. PETITION BY AN ACCOUNTANT FOR THE AP- POINTMENT OF AN AUDITOR IN COUNTIES HAVING NO SEPARATE ORPHANS' COURT. 550. In the Orphans' Court of Delaware County. In re Estate of , deceased. To the Honorable, the Judges of the Said Court: The petition of Company , Trustee under the will of , deceased, respectfully represents : 1. That it is trustee under the will of , deceased. 2. That as such trustee it filed its account in your Honorable Court on or about the day of . 3. On , said account was confirmed nisi and on the said account was confirmed absolutely. 4. Said account shows a balance of principal on hand for dis- tribution amounting to $ of principal and $ of in- come. 5. That before distribution can be made, it is necessary for the appointment of an auditor. Wherefore your petitioner prays your Honorable Court to appoint an auditor for the purpose afore- said. And your petitioner will ever pray, &c. By Trustee under the Will of , deceased. State of Pennsylvania, County of Philadelphia, j-^-.- being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. DECREE. And Now, to wit, this day of , 1920, upon con- sideration of the foregoing petition and on motion of and FORMS 82, 83 619 -, attorneys for the petitioner, the Court appoints Auditor of the estate of , deceased. By the Court : J- 83. PETITION TO OPEN AN ADJUDICATION BASED UPON AN ERRONEOUS STATEMENT OF FACT. 551- In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, No. . To the Honorable, the Judges of the Said Court: The petition of the Company , Executor of the estate of , deceased, respectfully represents: 1. The decedent died — , having made his last will, a copy of which is annexed hereto as Exhibit "A," duly probated on , on which the present letters were granted to your petitioner and leaving to survive him neither widow nor issue. 2. Decedent by his will gave certain specific and pecuniary legacies, all of which have been paid except the legacy to of $ , and the legacy to the Society , of $ . 3. Under a misapprehension of fact that was living and that the Society was a charitable organization in being and able to take, the first account of your petitioner was duly filed and called for audit before the Honorable , President Judge, who filed an adjudication on , awarding to the sum of $ , less tax and plus interest and award- ing to the Society the sum of $ , less tax and plus interest and this error was continued in the schedule of distribu- tion whereby each were awarded the sum of $ . 4. As a matter of fact predeceased the testator, whereby her legacy lapsed and should have been distributed among the residuary legatees and the Society was never in existence or capable of taking the said legacy. 5. The parties now entitled to the residuary estate of the said decedent are as follows : (list them and show interest) : 6. Notice of the intended presentation of this petition has been given to the Attorney General of the Commonwealth of 620 FORMS 83 Pennsylvania and to the Auditor General of the Commonwealth of Pennsylvania, by his local representative, , Esq., and their joinder herein is annexed hereto. Wherefore your petitioner prays that the adjudication of the Honorable , dated , sur the first account of The Company , Executor of the estate of , de- ceased, be opened with respect to the award of $ , to the Society and the award of $ , to , for the purpose of review and that as thus reopened the same be referred to the Auditing Judge, for a re-audit of the said account as respects the said legacies and distribution of the same to the persons found entitled thereto. And your petitioner will ever pray, etc. The Company , Executor of the Estate of , deceased. By State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true and correct to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1 92 1. JOINDER. I, the undersigned, acting herein for the Attorney General of the Commonwealth of Pennsylvania, hereby acknowledge that I have received notice of the intended presentation of the fore- going petition and join in the prayer therof. JOINDER. I, the undersigned, acting herein for the Auditor General of the Commonwealth of Pennsylvania, hereby acknowledge that I have received notice of the intended presentation of the fore- going petition and join in the prayer thereof. FORMS 83, 84 621 In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of , 192 1, upon con- sideration of the annexed petition and on motion of , attor- neys for the petitioner. It is hereby ordered and decreed that the prayer thereof be granted and that the adjudication of the Hon- orable , dated , sur the first account of The Company , Executor of the estate of , deceased, be opened with respect to the award of $ to the Society , and the award of $ to for the purpose of review and that as thus reopened the same be referred to the Auditing Judge, , for a re-audit of the said account as respects the said legacies and distribution of the same to the persons found entitled thereto. By the Court : J- 84. PETITION FOR THE REVIEW OF AN ADJUDICA- TION BY A KNOWN CREDITOR WHO WAS GIVEN NO NOTICE OF AUDIT. 551 In the Orphans' Court, County of Philadelphia. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: Petition of , Executrix of the estate of , deceased, respectfully represents : 1. That , late of the City and County of Philadelphia, died on the day of , having first made and pub- lished his last will and testament dated , duly probated in the office of the Register of Wills in and for the County of Philadelphia, on , and recorded in Will Book No. , Page , &c., wherein and whereby he appointed , Executor and Trustee. 2. The said , on the day of , renounced his right to act as such executor, whereupon letters of adminis- 622 FORMS 84 tration cum testamento annexe were issued to and . died on the day of . 3. By the terms of the said will his entire estate was devised and bequeathed to the testamentary trustee to pay one- third of the income to testator's wifei , for life, two-thirds for the maintenance and support of his children, and on the death of the wife and when the youngest child should reach the age of twenty-one, the principal to be divided equally among his children then living or the issue of those deceased, per stirpes, with the power in the executor or trustee to sell or mortgage the real estate, &c. (Here list parties in interest.) 4. , surviving administrator c. t. a., filed his first account after citation and the same came up for audit before the Honor- able on and . At the audit appeared for the accountant. By his adjudication the learned Auditing Judge awarded the balance of personalty $ , to , Trustee under the will for the uses and purposes therein set forth. This sum was reduced by the amount of $ at a subsequent audit , leaving a net balance of $ , and on said account was confirmed absolutely. 5. on the day of , executed and delivered to , surviving trustee under the will of , deceased, his certain bond in the penal sum of $ to secure the pay- ment of $ at the expiration of one year from the date thereof, with interest thereon, payable half-yearly at six per cent, per annum, secured by a mortgage recorded at Philadelphia, in Mortgage Book Page , covering acres and perches of ground on the side of Road, south of Road in the ward of the City of Phila- delphia. 6. By simdry mesne assignments the last of which was re- corded in the assignment of mortgage book , Page , the said bond and mortgage were assigned to and were owned by him and in his possession at the time of his death. 7. The said died on the day of , having first made, pubhshed and declared his last will and testament wherein and whereby he appointed your petitioner, executrix, and letters testamentary were issued thereon by the Register of Wills of the County of Philadelphia, on the day of , and have not since been revoked. FORMS 84 623 8. The said bond in the sum of $ was a valid and sub- sisting debt of the decedent at the time of his death, and at the time of the above audit, with interest at 6 per cent, from to date. 9. The Company „ has for many years last past and is at this date, acting as attorney in fact for the owner of said bond and mortgage, in the collection of interest thereon. 10. surviving administrator c. t. a., was thoroughly familiar with this bond and mortgage as shown in his account signed and sworn to on , wherein under dates of , he claims credit for payment "To Company six months' interest on mortgage $ Road, $ and charges himself in said account with rent received from said property in the sum of $ . 11. The said , surviving administrator c. t. a., in his petition for distribution signed and sworn to on the day of , recites as follows : "The unpaid claims of all creditors of which the accountant has notice or knowledge, with the amounts of such claims and whether or not they are admitted to be correct are as hereinafter set forth; said creditors have received notice of this audit." and followed it with the names of no creditors whatever. 12. No notice whatever of the filing of the account of the said , surviving administrator c. t. a., or of the audit thereof, was given to the said nor to the petitioner, his Executrix, not to the Company , Agent, and said account was filed and audited, and distribution decreed entirely without the knowledge of any of them. Whereby grave injustice and irrep- arable loss has been worked upon your petitioner if the same be not remedied. 13. That the only persons affected by this petition are : . 14. Therefore your petitioner prays that a citation be awarded directed to , commanding them and each of them to appear, and to show cause why the decree of confirmation of the said account, in so far as the rights of your petitioner are concerned, should not be vacated, set aside, opened, reviewed and corrected, and why such order of restitution on the parties concerned and such other relief in the premises as may be meet should not be decreed to her. 624 FORMS 84, 8s And your petitioner will ever pray, &c. Executrix of the Estate of Deceased. Commonwealth of Pennsylvania, City and County of Philadelphia, ^j: , being duly sworn according to law, deposes and says the facts set forth in the foregoing petition are true and correct to the best of her knowledge, information and belief. Sworn to and subscribed before me this day of , 1919. Notary Public. My commission expires . And Now, to wit, this day of , 1919, on con- sideration of the foregoing petition on motion of , attor- neys for the petitioner. It is hereby ordered and decreed that the prayer thereof be granted, and that a citation be issued directed to — , same being all the parties in interest, to appear and show cause why the decree of confirmation of the said account of , surviving administrator c. t. a., of the estate of , deceased, on , should not be vacated, set aside, opened, reviewed and corrected in so far as the rights of the petitioner are concerned, and to show cause why such an order of restitu- tion on the parties concerned and such other relief in the prem- ises as may be meet, should not be decreed to her. Returnable sec. leg. J. 85. PETITION FOR THE DISTRIBUTION OF AN ES- TATE NOT EXCEEDING THREE HUNDRED DOLLARS. 554. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . FORMS 85 625 PETITION FOR APPROVAL OF AN ACCOUNT OF AN ESTATE LESS THAN THREE HUNDRED DOLLARS UNDER SECTION 49 (c) OF THE FIDU- CIARIES ACT OF 1917. To the Honorable, the Judges of the Said Court: The petition of respectfully represents : 1. died a resident of Philadelphia County, on the day of , intestate and without issue, leaving to survive her your petitioner, her husband, as her sole heir and next of kin. 2. Letters of administration were granted to your petitioner by the Register of Wills of Philadelphia County, on the day of , and a bond was duly filed by your petitioner as such administrator, wherein the Company of , is surety. 3. That your petitioner has prepared and herewith submits annexed hereto his first and final account as such administrator. 4. That all the debts of the decedent have been paid in full and your petitioner has no knowledge of any credits. Your peti- tioner paid the funeral bill of the said decedent to , Avenue, Philadelphia, in the sum of $ on the day of 5. That the only person interested in this estate other than your petitioner is the surety on his bond, to wit: Com- pany, of , which company has received notice of the in- tended presentation of this petition and has joined in the prayer thereof. Wherefore your petitioner prays that the said account may be approved, your petitioner discharged as administrator and his surety released from future Hability on the said bond as provided by Section 49 (c), of the Fiduciaries Act of 1917. And your petitioner will ever pray, etc. State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is the petitioner herein and that the facts set forth in the 40 626 FORMS 8s, 86 foregoing petition are true to the best of his knowledge, informa- tion and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. The undersigned, being the only party in interest, other than , hereby acknowledges that it has received notice of the intended presentation of the foregoing petition and joins in the prayer thereof. (Signature.) DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the foregoing petition and the annexed account and on motion of , attorneys for the petitioner, it appearing that said account has been duly verified, all parties in interest having acknowledged receipt of notice of the filing of this petition, It is hereby ordered, adjudged and decreed that , Administrator of the estate of , deceased, be discharged as such administrator at the expiration of thirty days from the date of this decree and that the Surety Company of , be released from future liability on the bond of the said administrator, unless during said period of thirty days exceptions be filed to the account. By the Court : J- 86. PETITION FOR THE DISCHARGE OF AN EXEC- UTOR. 563. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of , one of the executors of the above estate respectfully represents : I. That died , having first made her last will and codicil thereto, duly probated , in which she appointed FORMS 86 627 your petitioner and Trust Company, executors, and Let- ters Testamentary were duly granted to them. 2. On the day of , the said executors filed their first account and on the day of , their second ac- count which came up for audit and were duly adjudicated on and , respectively, and since confirmed absolutely. 3. That the entire estate has been paid and transferred to the parties entitled thereto. 4. That no other money or property belonging to the estate has been received by your petitioner since the adjudication of the account. 5. That the only parties in interest are : . Trust Company, co-executor and all of said parties in interest join in this petition. Wherefore your petitioner prays that he may be discharged as co-executor of the estate of , deceased. And your petitioner will ever pray, etc. County of Philadelphia, i-j; being duly sworn according to law, deposes and says that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1919. JOINDER. We, the undersigned, being all the parties in interest in the estate of , either as distributees or otherwise, hereby acknowledge that we have received notice of the intended presen- tation of the foregoing petition and join in the prayer thereof. ( Signatures. ) DECREE. And Now, to wit, this day of , 1919, upon con- sideration of the foregoing petition and on motion of , attorneys for petitioner, , is hereby discharged as executor of the estate of , deceased. By the Court : 628 FORMS 87 87. PETITION FOR DISCHARGE OF ANCILLARY EXECUTOR. 563. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of respectfully represents: 1. That your petitioner is ancillary executor of the estate of , who died on , in County, New York, ancillary letters testamentary having been granted to your peti- tioner by the Register of Wills of Philadelphia County, on . 2. That your petitioner duly filed his first and final account in the office of the Register of Wills of Philadelphia County, and the same was called for audit before your Honorable Court on the day of . Said account was confirmed nisi by adjudication dated , and supplemental adjudication dated , has since been confirmed absolutely. 3. That the sole party in interest and sole distributee under the said adjudication is , executor at the domicile of the said decedent who has filed his receipt and release for the entire balance of the account in the office of the Clerk of the Orphans' Court of Philadelphia County. 4. The Trust Company is surety on the bond of the said ancillary executor. 5. The said executor at the domicile and the said surety are the only parties interested in this petition. They have received notice of its intended presentation and have joined in the prayer hereof. Wherefore your petitioner prays that he may be discharged as ancillary executor of the estate of , deceased, and the Trust Company, surety on his bond, released from future liability thereon. And your petitioner will ever pray, etc. State of , County of , ss: being duly sworn according to law, deposes and says that he is the petitioner herein and that the facts set forth in the FORMS 87, 88 629 foregoing petition are true and correct to the best of his knowl- edge, information and behef. Sworn to and subscribed before me this day of , 1921. JOINDER. We, the undersigned, being the only parties interested in the estate of , deceased, hereby acknowledge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. Executor at the domicile of - deceased. TRUST COMPANY. By- Surety. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the annexed petition and on motion of , attor- neys for the petitioner. It is hereby ordered and decreed that the prayer thereof be granted and , ancillary executor of the estate of , deceased, is hereby discharged as such ancillary executor and Trust Company, surety on his bond, is hereby discharged from future liability thereon. By the Court : 88. PETITION FOR DISCHARGE OF ADMINISTRA- TOR D. B. N. C. T. A. 563. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . 630 FORMS 88 To the Honorable, the Judges of the Said Court: The petition of , administrator d. b. n. c. t. a., of the estate of , deceased, respectfully represents : 1. Your petitioner duly filed his final account before your Honorable Court and the same came up for audit before the Honorable , and for supplemental audit before the Honor- able , and by an adjudication filed by Judge on , the entire balance in the hands of your accountant was awarded to , executors of the estate of , deceased, and the said balance was turned over to the said trustees and their release and satisfaction of award duly filed on the day of . 2. Since the said adjudication no money or other property of the decedent has come into the hands of your petitioner. 3. All of said parties in interest and the Trust Com- pany, surety on the bond of your petitioner, have received notice of the intended presentation of this petition and have joined in the prayer thereof. Wherefore your petitioner prays that he may be discharged as such administrator and his surety released from future liability. And your petitioner will ever pray, &c. Administrator d. b. n. c. t. a. of the Estate of , deceased. State of , County of , ss: being duly sworn according to law, deposes and says that he is administrator d. b. n. c. t. a., of the estate of , deceased, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 19 . JOINDER. We, the undersigned, being all the parties in interest in the estate of , deceased, and The Trust Company, surety on the bond of the administrator of the estate of the said decedent, hereby acknowledge that we have received notice of FORMS 88, 89 631 the intended presentation of the foregoing petition and join in the prayer thereof. (Signatures.) DECREE. And Now,, to wit, this day of , 1920, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioner, , is hereby discharged as administrator d. b. n. c. t. a., of the estate of , deceased, and the Trust Company, surety on his bond as such admin- istrator is hereby released from future liability on said bond. By the Court : J- 89. PETITION FOR THE DISCHARGE OF THE GUARDIAN OF THE ESTATE OF A MINOR. 563- In the Orphans' Court of Montgomery County. In re Estate of , late a minor. To the Honorable, — President Judge of Said Court: The petition of , Guardian of the estate of , late a minor, respectfully represents : 1. Your petitioner duly filed his first and final account in your Honorable Court and the same was examined and audited on the first day of , and confirmed nisi on , and since confirmed absolutely. 2. Under the terms of the said adjudication the balance for distribution as shown by the account, to wit, $ , was awarded to the said , and the same has been paid over and distributed to her and her receipt therefor filed of record. 3. No money or other property has come into the hands of your accountant since the filing of the said account. 4. All parties in interest have received notice of the intended presentation of this petition and join in the prayer thereof. Wherefore your petitioner prays that he may be discharged as Guardian of the said , late a minor, and his surety re- leased from future liability on his bond. And your petitioner will ever pray, &c. 632 FORMS 89, 90 County of Philadelphia, ss: , being duly sworn according to law, deposes and says that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 19 . JOINDER. We, the undersigned, being the sole distributee mentioned in the foregoing petition and the surety on the bond of the said Guardian, hereby acknowledge that we have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. (Signatures.) DECREE. And Now, to wit, this day of , upon considera- tion of the foregoing petition and on motion of , attorneys for petitioner, It is hereby ordered and decreed that be and he is hereby discharged as guardian of the estate of , late a minor, and , the surety on said Guardians' bond is hereby discharged from future liability thereon. 90. PETITION FOR THE DISCHARGE OF SURETY ON THE BOND OF A TRUSTEE. 563. In the Orphans' Court of Philadelphia County. Estate of , deceased. Term, , No. . To ihe Honorable, the Judges of the Said Court: The petition of , Trustee, respectfully represents : 1 . On or about the day of , your petitioner filed in your Honorable Court her account of one-fourth of the net proceeds of the sale of , which was a portion of the resi- duary estate of the above decedent. 2. That by adjudication of your Honorable Court on the , sur said account, the same was approved, and the balance shown thereby, to wit: $ was distributed and awarded equally between and . FORMS 90 633 3. That the said fund has been distributed to the said parties entitled thereto, and their" receipt and release taken therefor, and filed of record in your Honorable Court. 4. On or about , your petitioner filed her bond in con- nection with the above matter, in the sum of $ , wherein the Trust Company is surety. 5. All parties in interest as herein set forth, including the said distributees and surety, have joined in the prayer of this petition. Wherefore your petitioner prays that the said Trust Company be discharged as surety on said bond. And your petitioner will ever pray, etc. State of , County of , ss: , being duly sworn according to law, deposes and says that she is the petitioner named in the foregoing petition, and that the facts set forth therein are true to the best of her knowledge, information and belief. Sworn and subscribed to before me this day of , 1919. JOINDER. I, the undersigned, having received my full share of the pro- ceeds of the sale of , from , Trustee under the will of , deceased, do hereby acknowledge that I have received notice of the intended presentation of the petition for the dis- charge of the surety of the said Trustee, and do hereby join in the prayer thereof. The Trust Company, the surety named in the foregoing petition, hereby acknowledges that it has received notice of the intended presentation of the foregoing petition, and joins in the prayer thereof. TRUST COMPANY, By DECREE. And Now, to wit, this day of , 1919, upon con- sideration of the foregoing petition, and upon motion of , 634 FORMS 90, 91 attorneys for petitioner, the Court grants the prayer thereof, and the Trust Company, surety on the bond of , Trustee under the will of , deceased, in the matter of the proceeds of the sale of , is hereby discharged from future liability on said bond. By the Court : J- 91. PETITION FOR THE APPOINTMENT OF A SUB- STITUTED TRUSTEE ON THE RESIGNATION OF A TRUSTEE. 584. In the Orphans'' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of , Surviving Trustee, respectfully repre- sents : 1. Decedent died , having made his last will and testa- ment, duly probated in the office of the Register of Wills of Philadelphia County, on , copy of said will being hereto annexed as Exhibit "A." 2. By said will he appointed and as Trustees for . The said died on , so that your peti- tioner is sole surviving trustee. 3. Decedent by his will gave one-twelfth of his estate to said trustees and the survivor of them (recite terms of trust) : 4. The said is unmarried and has no issue. Her heirs interested in remainder, provided she makes no appointment of the trust fund by her will and dies without issue, are , a brother, , your petitioner, a brother and , and » , nephews, children of a deceased brother. All of said parties as above set forth are living and of full age. They have received notice of the intended presentation of this petition and have joined in the prayer thereof. 5. Your petitioner as surviving trustee has filed his account in your Honorable Court and the same was called for audit before on , and was confirmed nisi in an adjudication filed , and absolutely on the . FORMS 91 ■ 63s 6. By said adjudication, a copy of which is annexed hereto as Exhibit "B," it is decreed inter alia that the balance of prin- cipal composed as therein set forth "is awarded to the incoming trustee and payment and distribution is so decreed with leave to make any and all necessary assignments and transfers when he shall have been appointed and qualified." 7. Your petitioner being desirous of relinquishing his office as Surviving Trustee, has resigned as such to take effect upon the appointment and qualification of his successor. 8. All parties in interest have agreed upon the selection of the Trust Company as Substituted Trustee of this estate and the said company; has accepted the trust, subject to the approval of your Honorable Court. Wherefore your petitioner prays that Trust Company be appointed Substituted Trustee for under the will of in place of , surviving Trustee who has resigned. And your petitioner will ever pray, etc. Surviving Trustee of the Estate of , deceased. State of , County of , ss: , being duly sworn according to law, deposes and says that he is Surviving Trustee of the estate of , deceased, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. JOINDER. We, the undersigned, being the only parties interested in the estate of , deceased,- hereby acknowledge that we have received notice of the intended presentation of the foregoing peti- tion and join in the prayer thereof. (Signatures.) DECREE. And Now, to wit, this day of , 1920, upon con- sideration of the foregoing petition and on motion of , 636 FORMS 91, 92 attorney for thd petitioner, It is hereby ordered and decreed that the prayer thereof be granted and Trust Company is appointed Substituted Trustee for under the will of in place of , surviving trustee who has resigned; security to be entered in the sum of $ , and the bond of the Trust Company is hereby approved as such security. By the Court : J- 93. PETITION FOR THE DISCHARGE OF TRUSTEE AND APPOINTMENT OF SUBSTITUTED TRUS- TEE ON THE RESIGNATION OF THE FORMER. 584- In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of , respectfully represents : 1. That died on the day of , a resident of Philadelphia County, having first made, published and declared his last will and testament and codicil thereto dated , both duly probated in the office of the Register of Wills of Philadel- phia County, a copy thereof being hereto annexed as Exhibit "A." 2. By paragraph of his will the decedent provided: (recite terms of trust) : 3. The decedent nominated and as Executors and Trustees. was discharged on . died on . died on , and and were appointed as substituted Trustees inter alia for your petitioner under the will of the above decedent by decree of your Honor- able Court dated , security to be entered in the sum of $ , which security was duly entered by the Company of . 4. The said substituted Trustees desiring to be discharged, filed their first and final account in the office of the Clerk of the Orphans' Court and the same was called for audit before , J., on , and the account was confirmed nisi on , and FORMS 92 637 confirmed absolutely on , a copy of such adjudication is hereto annexed as Exhibit "B." 5. The balance shown by the account is $ , composed as follows : , which balance composed as in the account stated was awarded in the said adjudication to a trustee to be appointed for the purpose of the trust. 6. The said , life tenant upon the decease of your peti- tioner, is living and of full age and has two children, to wit: and , both living and of full age and no issue of deceased children. The same are all the parties interested in this proceeding. They have received notice of the intended presenta- tion of this petition and have joined in the prayer thereof. 7. Subject to the approval of your Honorable Court and with the consent of all the parties in interest your petitioner desires the appointment of the Trust Company as substituted Trustee and by joinder hereto attached the present Trustees have resigned, subject to the appointment of the said Trust Company, and the latter has accepted the trust subject to the approval of your Honorable Court. Wherefore your petitioner prays that Trust Company be appointed substituted Trustee under the will of , de- ceased, for in lieu of , and resigned. And your petitioner will ever pray, &c. State of , County of , ss: , being duly sworn according to law, deposes and says that she is the petitioner herein and that the facts set forth in the foregoing petition are true and correct to the best of her knowledge, information and belief. Sworn to and subscribed before me this day of , 192 1. JOINDER. We, the undersigned, being the succeeding life tenants and remaindermen under the trust set forth in the foregoing petition and as such, together with the parties who have joined therein, all the parties interested in said petition, hereby acknowledge that 638 FORMS 92 we have received notice of the intended presentation of the said petition to the Orphans' Court of Philadelphia County, and join in the prayer thereof. (Signatures.) JOINDER. We, the undersigned, and , substituted Trustees under the will of , deceased, for , hereby acknowl- edge that we have received notice of the intended presentation of the foregoing petition. We hereby resign as such substituted Trustees subject to the appointment of the Trust Com- pany as our successor, said resignation to take effect and be efifective upon the appointment of the said succeeding Trustee and the transfer of the trust estate to it and the execution and delivery by it of a receipt and release therefor. (Signatures.) JOINDER. Trust Company, suggested in the foregoing petition as substituted Trustee under the will of , for , hereby acknowledges that it has received notice of the intended presen- tation of the foregoing petition and accepts the appointment of substituted Trustee subject to the approval of the Orphans' Court of Philadelphia County. TRUST COMPANY, By- In the Orphans' Court of Philadelphia County. In the matter of the Estate of , deceased. Term, , No. . DECREE. And Now, to wit this day of , 1921, upon con- sideration of the annexed petition and on motion of , attorneys for the petitioner, and , are hereby dis- charged as substituted Trustees for , under the will of , deceased; conditioned, however, upon the transfer and delivery of the assets of the estate in accordance with the adju- dication of , and Trust Company is appointed sub- FORMS 92, 93 639 stituted Trustee for under the will of , deceased, in place of the said and , resigned, security to be entered in the sum of $ , and the bond of the said Trust Company is hereby approved as such security. By the Court : 93. CERTIFICATE AND AFFIDAVIT BY FOREIGN FIDUCIARY ENTITLED TO AN AWARD IN DIS- TRIBUTION. 595. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . AFFIDAVIT UNDER SECTION 58 (f) OF THE FIDUCIARIES ACT OF 1917. , being duly sworn according to law, deposes and says : 1. He is the executor of the estate of , deceased, under probate dated , in His Majesty's High Court of Justice in the District Probate Registry, at , England. 2. As such he is duly authorized and empowered to receive all property belonging to the estate of , deceased. 3. That by the adjudication of the Orphans' Court of Phila- delphia County, in the estate of , deceased, dated , there is distributable to him one-twelfth of the net estate of the said decedent, subject to compliance with Section 58 (f) of the Fiduciaries Act of 191 7. 4. That there are no creditors of the estate of in the Commonwealth of Pennsylvania. 5. That this affidavit is made in compliance with the require- ments of Section 58 (f) of the Fiduciaries Act of 1917. And further deponent saith not. Sworn to and subscribed before me this day of , 1920. 640 FORMS 94 94. PETITION FOR THE APPOINTMENT OF A GUARDIAN FOR THE ESTATE OF A MINOR UNDER THE AGE OF 14 YEARS. 599. In the Orphans' Court of Philadelphia County. In the matter of the Estate of Mary Doe, a minor. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of Mary Doe, by her father and next friend, George Doe, respectfully represents : 1. That your petitioner is the daughter of George Doe and Sarah Doe, the latter of whom is now deceased. 2. That your petitioner resides with her father in Detroit, Michigan. 3. That your petitioner was born on the day of , and is now over years of age. 4. That your petitioner is the only child of Sarah Doe, who died intestate on , leaving to survive her, her husband, George Doe, and your petitioner as her only heirs and next of kin, whereby your petitioner became seized of an undivided one-half interest in fee of premises Street, Philadelphia, valued at $ . 5. That proceedings are about to be had before your Honor- able Court for the sale of said property at private sale in which proceedings it is necessary that your petitioner be represented by guardian to receive and receipt for her share of the purchase money and act for her in the conveyance of such property. 6. That your petitioner has no such guardian in this jurisdic- tion and requests that your Honorable Court appoint The Acme Trust Company, as guardian for the purpose aforesaid. And your petitioner will ever pray, etc. MARY DOE, By- Her father and next friend. State of Michigan, County , ss: George Doe, being duly sworn according to law, deposes and says that he is the father of Mary Doe, the minor described in the foregoing petition ; that he is familiar with the facts set forth herein and that the same are true to the best of his knowledge. FORMS 94, 9S 641 information and belief ; that The Acme Trust Company , suggested as guardian, is a corporation of respectability and prop- erty in which the interests of the said minor may be safely entrusted ; that it is neither executor, administrator or trustee of any estate in which the said minor has an interest, nor surety on the bond of any such fiduciary. Sworn to and subscribed before me this day of , 192 1. In the Orphans' Court of Philadelphia County. In the matter of the Estate of Mary Doe, a minor. Term, , No. — — — . DECREE. And Nozv, to wit, this day of , 192 1, upon con- sideration of the annexed petition and on motion of , attor- ney for the petitioner. The Acme Trust Company, is hereby appointed guardian for Mary Doe, a minor. By the Court : J- 95. PETITION FOR THE APPOINTMENT OF A GUARDIAN FOR THE ESTATE OF A MINOR OVER THE AGE OF 14 YEARS. 599. In the Orphans' Court of Philadelphia County. In the matter of the Estate of Harry Doe, a minor. Term, 1921, No. — — — -. To the Honorable, the Judges of the Said Court: The petition of Harry Doe, respectfully represents: 1. That he is the son of Anna Doe and Harry B. Doe, both of whom are living. 2. That he resides with his parents at Avenue, Phila- delphia, Pennsylvania. 3. That he was born on the day of , and is now over fourteen years of age. 4. Under the will of , who died in , 1920, your petitioner is entitled to a legacy of $ , and one-third of the 41 042 FORMS 95 residuary estate of the said decedent, which one-third share amounts to approximately $ . That in order to receive said legacy and said share of the residuary estate it is necessary that your petitioner have a guardian appointed to accept and receipt therefor. 5. That your petitioner has no such guardian and therefore requests your Honorable Court to appoint The Acme Trust Com- pany, as guardian of his estate as aforesaid. And your petitioner will ever pray, etc. State of Pennsylvania, County of Philadelphia, jj; Harry Doe being duly sworn according to law, deposes and says that he is the petitioner herein and that the facts set forth in the foregoing petition are true to the best of his knowledge, informa- tion and belief. Sworn to and subscribed before me this day of , 1921. State of Pennsylvania, County of Philadelphia, j.y; Harry B. Doe being duly sworn according to law, deposes and says that he is the father of the minor mentioned in the foregoing petition and that the facts set forth therein are true and correct to the best of his knowledge, information and belief ; that he is well acquainted with the said minor's affairs and that The Acme Trust Company, suggested as guardian is a corporation of respectability and property to whom the estate of the said minor can be safely entrusted, and that it is neither Executor, Administrator nor Trustee of any estate in which the said minor has an interest, nor surety on the bond of any such fiduciary. Sworn to and subscribed before me this day of , 1921. FORMS 95, 96 643 JOINDER. I, the undersigned, mother of the minor, Harry Doe, hereby acknowledge that I have received notice of the intended presenta- tion of the foregoing petition and join in the prayer thereof. In the Orphans' Court of Philadelphia County. In the matter of the Estate of Harry Doe, a minor. Term, 1921, No. . DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the annexed petition and on motion of , attor- ney for the petitioner. The Acme Trust Company, is appointed Guardian of the estate of Harry Doe, a minor. By the Court : J- 96. PETITION BY GUARDIAN FOR LEAVE TO PAY MOTHER OF MINOR INCOME AND PORTION OF PRINCIPAL FOR SUPPORT. 607. In the Orphans' Court of Delaware County. In the matter of the Estate of , a minor. Term, , No. . PETITION FOR LEAVE TO PAY. To the Honorable, the Judges of the Said Court: The petition of the Trust Company, Guardian of the estate of , a minor, respectfully represents : 1. That died , a resident of Philadelphia County, having first made, pubHshed and declared* his last will and testa- ment, duly probated in the office of the Register of Wills of Phila- delphia County. 2. That in and by his said will the decedent nominated, con- stituted and appointed the Trust Company, testamentary guardiar^ of the minor children of his late son, , deceased, and the said Trust Company has since been appointed 644 FORMS 96 guardian of the estates of the said minors by decree of your Honorable Court dated . 3. That is the widow of the said and the mother of his children. 4. That the said left him surviving children, to wit: , the latter three of whom are minors of whose estates the Trust Company as aforesaid is guardian. 5. That the said Trust Company as guardian of each minor is entitled to a share of the residuary estate of the above decedent which said share amounts to $ , and the said guardian is also entitled to the same share of the real estate of the said decedent, to wit: Street, which has been sold for $ , and a ground rent on Street, which has been sold for $ , so that out of the pro- ceeds of the sale of the said real estate and ground rent the said — — — Trust Company as guardian for each minor will receive approximately $ , so that it will have a total fund for the benefit of each of the said three minors of $ , and from which the estimated net annual income will amount to approxi- mately $ . The said guardian has income on hand and accumulated since the death of the said decedent of approximately $ for each of said minors. 6. Neither the said minors nor their mother have any income other than that derived as aforesaid from their grandfather's estate. 7. That the said is now pursuing' a course of education at the University at , wherein the annual exf)ense amounts to $ per year, being $ 1 for tuition, $ for room rent, heat and light, $ for car fares, books, inci- dental and laboratory fees, $ for board and $ for clothing. 8. That , mother of the said minors, and her five child- ren, among whom is the said , all reside together in a family home and residence maintained for the family at , Pennsylvania, in maintaining which the following fixed charges per year must be paid, to wit : interest on $ ; taxes, $ ; coal, $ ; repairs, $ ; gas, water and electric light, $ or a total of $ , of which expense each of said minors should properly bear a share or $ . FORMS 96 64s 9. That , the mother of the minor, in order to support, maintain and educate him commensurate with his station in Hfe and in a manner compatible with his maintenance prior to the death of his father, has and is expending annually for him the sum of $ , exclusive of numerous incidental expenses in- curred from time to time for doctors' and dentists' bills and proper disbursements for amusements and recreation of the said minor. This expense has been continuous since the date of the death of the father of the said minor, , on , and the date of the death of the said on . 10. Since the death of the said , the said has expended for the support, maintenance and education of the said minor the sum of $ . During the same period, owing to the fact that the greater portion of the minor's estate consists of cash received on . very little income has been received by the said guardian. The income thus received during this period amounts only to the sum of $ , leaving a deficit of $ , payment of which is desired by the mother of the minor out of the corpus of the estate of the said minor in the hands of the said guardian. 11. The said , mother of the minor, as before stated, has no source of income from which to pay the aforesaid necessary expanses for the support, maintenance and education of the said minor and has had to borrow the sum above expended of $ and has therefore requested your petitioner to make application to your Honorable Court for leave to repay her the said sum out of the principal of the minor's estate and thereafter to make pay- ment to her of the income for the future support, maintenance and education of the said minor. 12. The said minor is over the age of fourteen years and has received notice of the intended presentation of this petition and has joined in the prayer thereof. 13. The affidavit of the mother of the said minor as to the facts herein set forth is hereto annexed. Wherefore your petitioner prays for leave and authority to pay to , mother of , a minor, out of the principal of his estate the sum of $ to reimburse her for expenditures made for the support, maintenance and education of the said minor up to the day of , and for leave and authority to pay to the said the income received from the said minor's estate 646 FORMS 96 from the day of foi" the support, maintenance and education of the said minor until the further order of the Court. And your petitioner will ever pray, etc. TRUST COMPANY, By Guardian of the Estate of , a minor. State of Pennsylvania, City and County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. I, the undersigned , being one of the minor children of , deceased, over the age of 14, hereby acknowldge that I have received notice of the intended presentation of the foregoing petition, and join in the prayer thereof. State of Pennsylvania, County of , ss: being duly sworn according to law, deposes and says that she is the mother of , the minor mentioned in the fore- going petition ; that she is familiar with the facts set forth therein and that the same are true to the best of her knowledge, informa- tion and belief ; that she has received notice of the intended pres- entation of the foregoing petition and has joined in the prayer thereof. Sworn to and subscribed before me this day of , 192 1. DECREE. And Now, to wit, this day of , A. D. 1921, upon consideration of the foregoing petition and on motion of , attorneys for the petitioner, the Trust Company, guardian FORMS 96, 97 647 of the estate of , a minor, is hereby authorized and em- powered to pay to , mother of , a minor, out of the principal of his estate the sum of $ , to reimburse her for expenditures made for the support, maintenance and education of the said minor up to the day of , and to pay to the said the income received from the said minor's estate from the day of , for the support, maintenance and education of the said minor, until the further order of the Court. By the Court : J- 97. PETITION BY GUARDIAN FOR LEAVE TO PAY INCOME FROM TRUST TO MOTHER FOR ITS EDUCATION, MAINTENANCE AND SUPPORT. 607. In the Orphans' Court of Philadelphia County. In re Estate of , a minor. Term, , No. . PETITION FOR LEAVE TO PAY. To the Honorable, the Judges of the Said Court: The( petition of , Guardian of , a minor, respect- fully represents: 1. That your petitioner was duly appointed guardian of the estate of the said minor, , by decree of your Honorable Court dated . 2. That said minor by the will of , who died , is entitled to the income from a legacy of $ given and be- queathed unto The Company , in trust for the said minor and from which estate there is payable to her quarterly under the terms of the said trust the sum of approximately $ . 3. , the father of said minor, died on . , the mother of said minor is still living and resides at Street, in the City of Philadelphia,- where she maintains a home for the said minor and herself. 4. The said minor has no source of income other than the trust fund as above set forth. 648 FORMS 97 5. Under the terms of the said trust there has been accumulated in the hands of the trustee income in the amount of $ . 6. The entire amount of the quarterly income from said trust as well as the accumulated income thereon is required by the said minor for her education, maintenance and support in a manner suitable to her station in life and the said minor and her mother have requested your petitioner to present this petition to your Honorable Court for leave to pay the income accumulated and hereafter to be derived from the said trust to the mother of the said minor for her education, maintenance and support. Wherefore your petitioner prays for leave and authority to pay to , the mother of , a minor, the income on hand and accrued from the trust under the will of and the net income as it may hereafter accrue from the interest of the said minor in the said trust fund until the said minor arrives at the age of twenty-one years or until the further order of the Court. And your petitioner will ever pray, &c. Commonwealth of Pennsylvania, City and County of Philadelphia, ss: — being duly sworn according to law, depioses and says that she is the guardian of , the said minor, and that the statements contained in the foregoing petition are true to the best of her knowledge, information and belief. Sworn to and subscribed before me this day of , 1920. JOINDER. We, — — — , the mother of , a minor, and , the said minor in her own right, do hereby acknowledge that we have received notice of the intended presentation of the foregoing peti- tiort and join in the prayer therof. DECREE. And Now, to wit, this day of , 1920, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioner, , Guardian of the estate of FORMS 97, 98 649 -, is hereby authorized and empowered to pay to , the mother of the said minor, the income on hand and accrued from the trust under the will of , and the net income as it may hereafter accrue from the interest of the said minor in the said trust fund until the said minor arrives at] the age of twenty- one years or until the further order of this Court. By the Court : J- 98. PETITION BY GUARDIAN OF MINOR TO MAKE PAYMENT OF PRINCIPAL IN RELIEF OF DE- FICIENCY OF INCOME. 607. In the Orphans' Court of Philadelphia County. In re Estate of , a minor. Term, , No. . PETITION FOR LEAVE TO MAKE PAYMENT OF PRINCIPAL. To the Honorable, the Judges of the Said Court: The petition of The Company , Guardian of the Estate of , a minor, respectfully represents : 1. That your petitioner was appointed Guardian of the said estate by decree of your Honorable Court dated . 2. By decree of your Honorable Court dated , your peti- tioner was authorized to lay out and expend and pay over to the mother of the said minor income not exceeding $ per year for the support, maintenance and education of the said minor. 3. By decree of your Honorable Court dated , the mother of said minor, — , and the said minor were allowed to occupy premises Avenue, belonging to said estate, free of rent, the net rental thereof to be considered as part of the above allowance. 4. By decree of your Honorable Court dated , the above premises Avenue, were sold for a consideration of $ in cash over and above the mortgage thereon. 5. That your petitioner has in hand personalty amounting to $ , from which the approximate net yearly income is 650 FORMS 98 $ , and the proceeds of the sale of realty in the amount of $ , from which the approximate net yearly income is $ . The said minor is entitled to all of the income from the personal estate and to two-thirds of the income from the real estate making for the minor a net annual income of $ or thereabouts, and for the mother approximately $ . These two items are the only sources of income available either for the minor or his mother. 6. During the last year and upwards the mother of said minor, , has been almost continuously confined to the Hos- pital, where she has undergone many operations, so that she has been unable to earn anything for the support of herself or her son, and, on the contrary, has been compelled to lay out divers large sums of money for hospital expenses, nurses' and doctors' bills, medicines and surgical dressings, etc., to the extent of $— ■ 7. By reason of said illness and its consequent effect upon her earning capacity and increase in living expenses, , the mother of said minor, has been compelled to overdraw the income account due the said minor to the extent of $ as of , of this year. 8. Your petitioner has been notified of the above facts by the said , and has investigated same and believes them to be true in all respects, and has been requested by her to present this petition to your Honorable Court. Wherefore your petitioner prays for leave to pay to the said , out of the principal of the personal estate in its hands as Guardian for the said minor, the sum of $ , of which $ shall be used to make up the overdraft of income and $ in payment of hospital bills, etc. And your petitioner will ever pray, &c. The — Company , Guardian of the Estate of . By- County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner, and that the facts FORMS 98, 99 651 set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1919. JOINDER. I, the undersigned, mother of , the minor, mentioned in the foregoing petition, do hereby acknowledge that I have received notice of the intended presentation of the said petition and join in the prayer thereof. (Signature.) DECREE. And Now, to wit, this day of , 1919, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioner, it is hereby Ordered and decreed that the prayer thereof be granted and The Company , Guardian of the estate of , a minor, be and the same is hereby authorized and empowered, out of the principal of the personal estate held by it for the benefit of the said minor, to pay the sum of $ , whereof $ shall be paid to income to reimburse the same for the overdraft thereon and $ shall be paid to , mother of said minor, to reimburse her for the necessary expenses incident to her treatment in the Hospital. By the Court : J. 99. PETITION BY GUARDIAN OF MINOR TO MAKE PAYMENT OF A LUMP SUM OUT OF INCOME TO DEFRAY WEDDING EXPENSES OF MINOR. 607. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , a minor. Term, , No. . 652 FORMS 99 PETITION FOR LEAVE TO PAY. To the Honorable, the Judges of the Said Cowt: The petition of , Guardian of the Estate of , a minor, respectfully represents: 1. That your petitioner was duly appointed guardian of the estate of the said minor by decree of your Honorable Court dated , after the death of , the former guardian. 2. That the approximate value of the estate in the hands of your petitioner as guardian aforesaid is $— , from which the approximate annual income is $ . In addition to this the said minor is entitled to income from other funds in the hands of the Company , wherein she has no vested right to the principal, of approximately $ per year. 3. By decree of your Honorable Court dated , during the period when the said was guardian of the said minor, the said guardian was authorized to pay , the mother of the said minor, the sum of $ per year for her maintenance, education and support. 4. The said minor is at present engaged to be married and will marry on the day of , and in order to pro- vide the said minor with a proper trousseau and defray the ex- penses incidental to the said marriage, , the mother of said minor has requested your petitioner to pay her the sum of $ out of the income on hand and accrued for the benefit of the said minor from the funds in the hands of your petitioner. 5. Your petitioner is ready and willing to accede to this request, but is not authorized to do so without the approval of your Honor- able Court. 6. The said minor has joined in the request, but owing to the shortness of time, it is impossible to secure the formal joinders of the minor and her mother to this petition prior to its presenta- tion to Court. Wherefore your petitioner prays that he may be authorized and empowered to pay the sum of $ , from the in- come arising front the funds in his hands held for the benefit of , a minor, the said sum to be used for the purpose of a trousseau and to defray the expenses incident to the marriage of the said minor to , said payment to be subject to the execu- tion by the said and the said , of a joinder and consent in the form hereto attached which joinder and consent FORMS 99 653 when executed and received shall be attached hereto and made a part hereof. And your petitioner will ever pray, etc. Guardian of the Estate of a minor. State of Pennsylvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is guardian of the estate of , a minor, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. In the Orphans' Court of Philadelphia County. In the matter of the Estate of , a minor. Term, , No. . JOINDER. Republic of France, United States Consulate: Personally appeared before me the undersigned, and , who being duly sworn according to law, depose and say that they have received notice of the presentation by , Guardian of the estate of , a minor, of a petition to the Orphans' Court of Philadelphia County, for leave to pay out of the income from the funds in his hands belonging to the estate of the said minor, the sum of $ , to the said , to be used by her for the purchase of a trousseau and to defray the expenses incurred in and about the intended marriage of the said to , and hereby consent to the same and join in the prayer thereof. Sworn to and subscribed before me this day of , 192 1. DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the foregoing petition and on motion of , 654 FORMS 99, 100 It is hereby ordered and decreed that the prayer thereof be granted and , guardian of the estate of , a minor, is author- ized and empowered to pay the sum of $ from the income arising from the funds in his hands for the benefit of , a minor, the said sum to be used for the purchase of a trousseau and to defray the expenses incident to the marriage of the said minor to , said payment to be subject to the execu- tion of the said and the said , of a joinder and consent in the form hereto attached which joinder and consent when executed and received shall be attached hereto and made a part hereof. By the Court : J- 100. PETITION BY TRUSTEE TO MAKE PAYMENT TO FOREIGN GUARDIAN. 607. In the Orphans' Court of Philadelphia County. In re Estate of , deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of the Company, respectfully represents: 1. That , late of the City of Philadelphia, State of Penn- sylvania, died , having ifirst made and published his last will and testament dated , and codicil thereto dated , copies of which are annexed hereto. 2. That in and by said will he provided, inter alia, as follows, to wit : (recite terms of trust) : 3. That one , a resident of the City of , New Jersey, duly qualified under the terms of said will as hereinbefore set forth, has heretofore been in receipt of said payment of dollars per annum and is still so entitled to said payment. 4. The said was adjudged a lunatic for whom was duly appointed guardian by the Chancery Court of New Jersey on the day of , as appears by exemplified copy of the record of said proceedings annexed to this petition as Exhibit "B." 5. As will appear from the exempHfied copy annexed hereto, bond in the sum of dollars has been duly entered as FORMS 100, loi 655 specific security for the faithful accounting by said guardian for the said payments to him of the said annual sum of dollars as hereinbefore set forth. Your petitioner, therefore prays for leave and authority to pay to , Guardian of , a lunatic, the sum of $ — per annum from the income of the said trust estate of the said , known as , under the Second Clause of the will of , as the same shall from time to time become due and payable. And your petitioner will ever pray, etc. County of Philadelphia, j.?: being duly sworn according to law, deposes and says that he is of The Company, and that the facts set forth in the foregoing petition are true to the best of his knowl- edge, information and belief. Sworn to and subscribed before me this day of , 1919. DECREE. And Now, to wit, this day of 1919, upon consideration of the foregoing petition and on motion of , attorneys for petitioner, the Court grants the prayer thereof and authorizes and directs the Company , Trustee under the will of , to pay to , a lunatic, the sum of dollars per annum from the income of the said trust estate of the said , known as , under the Second Clause of the will of , as the same shall from time to time become due and payable. loi. PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR MINORS UNDER THE AGE OF 14 YEARS FOR REPRESENTATION IN SALE OF REAL ESTATE. 616. In the Orphans' Court of Philadelphia County. In the matter of the Estate of John Doe, deceased. — Term, , No. . 6s6 FORMS loi To the Honorable, the Judges of the Said Court: The petition of Mary Roe and George Roe, by their father and next friend, Richard Roe, respectfully represents: 1. That your petitioners are the children of Jane Roe and Richard Roe, both of whom are living. 2. That your petitioners reside with their parents in Philadel- phia, Pennsylvania. 3. That Mary Roe was born on the day of , and is now over years of age ; that George Roe was born on the day of , and is now over years of age. 4. That your petitioners as the children of Jane Roe who was a daughter of Sarah Jones, who was a daughter of the above dece- dent, have a possible contingent interest in remainder in the estate of the said decedent. 5. That proceedings are now pending before your Honorable Court for the sale of certain real estate wherein it is necessary that your petitioners be represented by a guardian ad litem. 6. That your petitioners have no such guardian and therefore request your Honorable Court to appoint , a citizen and resident of Philadelphia County, as guardian ad litem for the purpose aforesaid. And your petitioners will ever pray, etc. Mary Roe. George Roe. By ^ Their Father and next friend. Commonwealth of Pennsylvania, County of Philadelphia, ss: Richard Roe being duly sworn according to law, deposes and says that he is the father of Mary Roe and George Roe, the minors described in the foregoing petition ; that he is famiHar with the facts set forth therein and that the same are true to the best of his knowledge, information and belief ; that sug- gested as guardian ad litem is a resident of the City of Philadel- phia, and is a person of respectability and property in whom the interests of the said minors may be safely entrusted ; that he is neither Executor, Trustee or Administrator of any estate in which the said minors have an interest, nor officer or employe of any FORMS loi, 102 657 such fiduciary, nor surety on the bond of any such fiduciary, nor officer or employe of any such surety on the bond of any such fiduciary. Sworn to and subscribed before me this day of , 1921. JOINDER. I, the undersigned, mother of the minors, and , hereby acknowledge that I have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the foregoing petition and on motion of , attorneys for the petitioners, is hereby appointed guardian ad litem for — and , minors ; no security to be entered and no property to come into the hands of the said guardian until the further order of this Court. By the Court : J- 102. PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR MINOR OVER THE AGE OF 14 YEARS FOR REPRESENTATION AT AUDIT. 616. In the Orphans' Court of Philadelphia County. In re Estate of Joseph Doe, deceased. Term, , No. . To the Honorable, the Judges of the Said Court: The petition of Emma Roe respectfully represents : 1. That your petitioner is the daughter of William Roe and Marion Roe, his wife, both of whom are living. 2. That she resides with her parents at , Philadelphia, Pennsylvania. 3. That she was born on the day of , and is now over eighteen years of age. 42 6s8 FORMS 102 4. That your petitioner as the daughter of Marion Roe who is a daughter of the above decedent has a possible contingent interest in remainder under the will of the above decedent, a copy of which is annexed hereto as Exhibit "A." 5. That the account of and , Trustees is now before your Honorable Court for audit, wherein it is necessary that your petitioner be represented by a guardian ad litem. 6. That your petitioner has no such guardian and therefore requests your Honorable Court to appoint William Blackstone, Esq., as guardian ad litem for the purpose aforesaid. And your petitioner will ever pray, etc. State of , County of , ss: Emma Roe being duly sworn according to law, deposes and says that she is the petitioner herein and that the facts set forth in the foregoing petition are true to the best of her knowledge, information and belief. Sworn to and subscribed before me this day of , 192 . State of , County of , jj; William Roe being duly sworn according to law, deposes and says that he is the father of the minor, Emma Roe, mentioned in the foregoing petition and that he is well acquainted with the estate of the said minor ; that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief; that William Blackstone, Esq., suggested as guardian, is a member of the Bar and resident of the City of Philadelphia, and is a person of respectability and property in whom the inter- ests of the said minor may be: safely entrusted ; that he is neither Executor, Trustee or Administrator of any estate in which the said minor has an interest, nor officer or employe of any such fiduciary, nor surety on the bond of any such fiduciary, nor officer or employe of any such surety on the bond of any such fiduciary. Sworn to and subscribed before me this day of , 192 . FORMS 102, 103 659 JOINDER. > I, the undersigned, mother of the minor, Emma Roe, hereby acknowledge that I have received notice of the intended presen- tation of the foregoing petition and join in the prayer thereof. DECREE. And Now, to wit, this day of , 192 , upon consideration of the foregoing petition, WiUiam Blackstone, Esq., is hereby appointed guardian ad litem for Emma Roe, a minor; no money or other property to come into the hands of the said guardian and no security to be entered until the further order of this Court. By the Court : J. 103. PETITION BY GUARDIAN FOR LEAVE TO EN- TER SECURITY TO RECEIVE AWARD FROM FOREIGN JURISDICTION. In the Orphans' Court of Philadelphia County. In the matter of the Estates of , minors. Term, , No. . PETITION FOR LEAVE TO ENTER SECURITY. To the Honorable, the Judges of the Said Court: The petition of The Company , respectfully rep- resents : 1. That your petitioner was duly appointed guardian of the estates of the above minors, all of whom are under the age of fourteen years, by decree of your Honorable Court dated , without bond, the purpose of said appointment being to receive the minors' share of the estate of their father, , deceased, of Philadelphia County, ( ), amounting to the sum of $ net.. 2. The said minors are also entitled to the sum of $ now in the hands of the Trust Company of , New Jersey, the same being the proceeds from the sale of real estate and said sum being composed as follows : $ . 66o FORMS 103 3. , father of said minors died in , leaving to survive him, his' widow, , who is the sole heir and next of kin of said minors. She has received notice of the intended pres- entation of this petition and joins in the prayer thereof. 4. All parties in interest desire the transfer of the said fund from the said Trust Company of , New Jersey, to your petitioner as guardian of the said minors and to secure same it is necessary that security be entered therefor. Wherefore your petitioner prays that it be given authority to enter security in your Honorable Court in the sum of $ , as security for the transfer to your petitioner of the sum of $ , composed as hereinabove set forth from the Trust Com- pany of , New Jersey. And your petitioner will ever pray, etc. THE COMPANY, Guardian. By State of Pennslyvania, County of Philadelphia, ss: being duly sworn according to law, deposes and says that he is of the corporation petitioner, and that the facts set forth in the foregoing petition are true to the best of his knowledge, information and belief. Sworn to and subscribed before me this day of , 1921. JOINDER. I, the undersigned, being the only party in interest, in the fore- going petition other than The Company, Guardian of , minors, hereby acknowledge that I have received notice of the intended presentation of the foregoing petition and join in the prayer thereof. In the Orphans' Court of Philadelphia County. In the matter of the Estates of , minors. Term, , No. . FORMS 103 66i DECREE. And Now, to wit, this day of , 1921, upon con- sideration of the annexed petition and on motion of , attorneys for the petitioner, It is hereby ordered and decreed that the prayer thereof be granted and that The Company , guardian of the estates of , be and the same is hereby authorized and empowered to enter security in the sum of $ , as security for the transfer to the said guardian by the Trust Company of , New Jersey, of a fund of $ , composed of $ , being the amount due said minors from the sale of certain real estate in New Jersey, and the bond of the said The Company , is hereby approved as such security. By the Court : TABLE OF ACTS OF ASSEMBLY REPEALED (References are to sections. Unless otherwise noted the re- peal is absolute.) Sec. 1705 Sec. I, 2, 5 & 8 I Sm. L. 33 291 Sec. 3, 4, 6 & 7 I Sm. L. 33 253 i7os-6Jan. 12 2 St. at L. 198, Ch. 134 623 1713 Mar. 27 Sec. i, 8 & 9 i Sm. L. 81 166 Sec. 2, 7, 10-13 I Sm. L. 61 623 Sec. 14, 15 & 16 ...... . I Sm. L. 81 291 1772 Mar. 21 I Sm, L. 383 623 Sec. s I Sm. L. 389 623 1777 Mar. 14 I Sm. L. 443 in part 291 1779 Oct. 9 I Sm. L. 473 623 1791 April 6 Sec. 5 3 Sm. L. 20 291 April 13 Sec. 5, 6, 18 3 Sm. L- 28 166 Sec. 8 3 Sm. L. 28 623 Sept. 30 Sec. 2 3 Sm. L. 58 291 1792 Mar. 31 3 Sm. L. 66 623 1794 April 19 Sec. i, 2, 14, 21 3 Sm. L. 143 623 Sec. 3, 13, 18 3 Sm. L. I43 352 Sec. 22 3 Sm. L. 143 65 Sec. 23 3 Sm. L. 143 253 Sec. 24 3 Sm. L. 143 166 1797 April 4 Sec. I, 4, 9 ' 3 Sm. L. 296 623 Sec. S, 6, 7 3 Sm. L. 296 352 Sec. 8 3 Sm. h- 296 in part 65 Sec. 10 3 Sm. L. 296 253 1800 Mar. 10 3 Sm. L. 433 623 1802 April 2 P. L. 133 623 1804 Mar. 12 P. L. 271 623 April 2 P. L. 459 • 6S 1805 April I P. L. 205 65 1807 April 7 Sec. 6, 7, 8 P. L. iS5 65 April 7 Sec. 9 P. L. 155 in part 65 April 7 Sec. 10 P. L. 155 212 April 7 Sec. II P. L 15S 253 1808 Mar. 26 Sec. 2 P. L. 144 65 Mar. 26 Sec. 3 P. L. 144 623 1810 Mar. 19 P. L. 96 253 1811 April I Sec. I P. L. 198 253 April I Sec. 2 P. L. 198 623 1814 Feb. 7 PL. 44 623 1815 Mar. 13 P. L. 173 352 663 664 ACTS REPEALED Sec. 1818 Feb. 17 P. L. 104 in part 623 Mar. 10 P. L. 183 633 Mar. 24 Sec. 7 P. L. 285 in part 623 1819 Jan. 21 P. L. 25 352 Feb. 8 Sec. 2 P. L. s8 623 1821 Feb. 5 Sec. 2 P. L. 25 633 Mar. 30 P. L. IS3 623 Mar. 31 Sec. 2 P. L. 178 623 1823 April I P. L. 286 623 1824 Feb. 18 Sec. i P. L. 25 in part 623 1825 Mar. 22 P. L. 107 in part 623 1826 April 8 Sec. i P. L. 255 623 April 8 Sec. 2 P. L. 255 212 1828 April 10 Sec. 3 P. L. 285 623 April 14 Sec. i & 2 P. L. 453 in part 623 April 14 Sec. S & 6 P. L. 484 65 1829 April 3 Sec. i & 2 P. L. 122 623 1830 April 6 Sec. 5 P. L. 272 291 April 7 P. L. 347 623 1832 Mar. 15 Sec. i, 5, 7, 13, 17, 25, P. L. i35 291 3i> 32, 36, 38, 39, 42, 43 Mar. 15 Sec. 6, 14, 16, 18, 24, 26, P. L. 135 623 30, 43. 44 Mar. 15 Sec. II P. L. I35 2S3 Mar. IS Sec. 40, 42 P. L. I3S 166 Mar. 29 Sec. i, 4, 52, 55, 60 . . . P. L. 190 166 Mar. 29 Sec. 5, 34, 47, S3, 54 •• • P- L- 190 623 Mar. 29 Sec. 35 P. L. 190 253 Mar. 29 Sec. 36, 46, 48, 51 P. L. 190 65 1833 April 6 P. L. 207 352 April 8 P. L. 249 253 April 8 P. L. 31S 3S2 1834 Feb. 24 Sec. i, 41, 43, 45, 61, P. L. 73 623 66, 68 Feb. 24 Sec. 42, 44, 46 P. L. 7i 65 April 14 Sec. 52, 57 P- L. 341 166 1835 April 14 Sec. i, 3 P. L. 275 623 April 14 Sec. 2 P. L. 275 65 April 14 Sec. 4 P. L. 275 166 1836 Mar. II Sec. 12, 13 P. L. 76 in part 623 June 14 Sec. 15, 21, 23, 26 P. L. 628 in part 623 June 16 Sec. I P. L. 682 212 June 16 Sec. 2 P. L. 682 166 June 16 Sec. 3 P. L. 682 623 June 16 Sec. 19 P. L. 784 166 June 16 Sec. 20, 22 P. L. 784 in part 166 1838 Mar. 17 Sec. 2 P. L. 80 in part 623 ACTS REPEALED 665 Sec. 1840 April 13 Sec. i, 2 P. L. 319 623 April 13 Sec. 4 P. L. 319 65 Oct. 13 Sec. I P. L. 1841-1 - . . . . 623 1842 Mar. 12 Sec. s P. L. 66 623 July 16 Sec. 52 P. L. 374 623 1843 April 4 Sec. 8 P. L. 131 in part 166 April 13 Sec. 22 P. L,. 237 623 April 24 Sec. 8 P. L. 359 65 1844 April 6 P. L. 214 65 May 6 Sec. 2 P. L. 364 253 1845 April 15 Sec. i P. L. 4S8 65 1846 April 20 Sec. 2, 3 P. L. 411 in part 166 April 21 Sec. i P. L. 426 65 April 21 Sec. 2 P. L. 430 166 April 22 Sec. 9 P. L. 476 623 April 22 Sec. i P. L. 483 623 1847 Mar. 13 P. L. 319 6s Mar. 16 Sec. 2 P. L. 474 212 1848 Jan. 27 P. L. 16 253 Feb. 8 P. L. 27 623 April II Sec. 7 & 11 P. L. S36 253 April II Sec. 9 P. L. 536 in part 352 April II Sec. 9 P. L. S36 in part 623 1849 Mar. 14 P. L. 164 in part 623 April 9 Sec. 2 P. L. Sii 623 April 9 Sec. 4 P. L. 524 in part 6s April 9 Sec. 5, 13. 16 P. L. 524 623 April 10 Sec. 2 P. L. S91 in part 65 April 10 Sec. 10 P. L. S91 623 1850 Mar. 14 Sec. i P. L. I9S in part 623 April 25 Sec. i, S, 44 PL. 569 623 April 25 Sec. 2 P. L. 569 65 April 25 Sec. 10 P. L. 569 in part 6s April 25 Sec. 18 P. L. 569 166 April 26 Sec. 22, 23 P. L. 577 in part 65 April 26 Sec. 22, 23 P. L. 577 in part 623 April 26 Sec. 25 P. L. 577 • '• 623 May 15 Sec. 8 P. L. 764 623 1851 April 3 Sec. I, 5 P. L. 305 212 April 3 Sec. 6 P. L. 305 623 April 3 Sec. 10 P. L. 305 291 April 14 Sec. 5 P. L. 612 623 April IS Sec. 18 P. L. 669 623 1853 Feb. 2 P. L. 31 623 Feb. 23 PL. 98 623 April 18 Sec. I, 8, 10 P. L. S03 212 1854 Feb. 20 Sec. 1 P. L. 89 in part 65 Mar. 6 Sec. i P. L. IS5 in part 166 666 ACTS REPEALED Sec. 1854 Mar. 27 Sec. i P. L. 214 in part 623 April 13 Sec. i & 3 P. L. 368 212 April 13 Sec. 2 P. L. 368 in, part 633 May s P. L. 570 623 1855 April 12 P. L. 214 65 April 26 Sec. 11 P. L. 328 in part 253 April 27 Sec. i P. L. 368 in part 253 April 27 Sec. 2 P. L. 368 352 April 27 Sec. 3 P. L. 368 in part 352 April 27 Sec. 4 P. L. 368 in part 65 April 27 Sec. 5 P. L. 368 212 May 3 Sec. 2, 5 P. L. 415 in part 623 May 4 Sec. i & 6 P. L. 430 253 May 4 Sec. 5 P. L. 43° 352 May 4 Proviso of Sec. 7 P. L. 430 35i 1856 April II Sec. 4 P. L. 315 623 April 17 Sec. i & 2 P. L. 386 65 April 19 Sec. 4 & 5 P. L. 4S8 291 April 21 P. L. 495 623 April 22 Sec. 7 P. L. 532 291 April 22 Sec. 8 P. L. 532 623 April 22 Sec. 10 P. L. 532 in part 65 1857 May 14 P. L. S07 in part 352 1859 Mar. 13 P. L. 611 623 Mar. 22 Sec. i P. L. 207 623 April 6 P. L. 384 623 April 7 P. L. 406 623 April 8 P. L. 425 in part 623 April 13 P. L. 604 623 1861 May I P. L. 420 623 May I P. L. 431 in part 623 May I P. L. 680 in part 623 1863 April I P. L. 187 212 April I P. L. 205 166 April II P. L. 341 65 1864 Mar. 17 P. L. 53 623 April 18 P. L. 462 212 April 23 P. L. 550 623 April 27 P. L. 641 in part 65 Aug. 25 P. L. 1029 623 1865 Mar. 22 P. L. 31 in part 65 Mar. 27 P. L. 44 in parti 623 Mar. 27 P. L. 45 65 Nov. 27 P. L. 1866-1227 623 1866 April 17 P. L. 108 212 April 17 P. L. Ill in part 623 May 17 P. L. 1096 623 1867 Jan. 7 P. L. 1367 65 ACTS REPEALED 667 Sec. 1867 Feb. 13 p. L. 160 6s Mar. 23 Sec. 12 P. L. 43 212 April IS p. L. 86 623 1868 April 9 P. L. 785 in part 623 April 14 P. L. 97 623 April 28 P. L. los 6s 1869 Feb. 18 Sec. I P. L. 183 623 Feb. 26 P. L. 4 in part 65 Mar. 30 P. L. IS in part 65 April 12 P. L. 27 623 April 13 P. L. 28 in part 6i April 17 P. L. 70 623 April 17 P. L. 72 623 April 20 Sec. i P. L. 71 253 April 20 Sec. 2 P. L. 17 65 1871 May 17 (Act No. 250) P. L. 269 in part 623 May 17 (Act No. 251) P. L. 269 623 May 23 P. L. 274 65 May 25 P. L. 279 623 June 15 P. L. 387 in part 623 1872 April 8 P. L. 44 623 1874 May 14 P. L. 156 in part 65 May 14 P. L. 166 65 May IS P. L. I94 623 May IS P. L. I9S 623 May 19 Sec. 2, 4, 6, 10 P. L. 206 166 May 19 Prov. to Sec. 6 P. L. 206 623 June 8 P. L. 277 212 187s Mar. 4 P. L. 5 166 Mar. 18 P. L. 29 166 1876 April 9 P. L. 19 in part 166 April 28 P. L. 50 in part 623 May 8 P. L. 133 623 May 8 P. L. 140 6s 1877 Feb. 16 P. L. 3 in part 623 Mar. 24 P. L. 37 291 1878 May 22 Sec. I & 2 P. L. 83 in part 623 May 24 P. Iv. 131 166 1879 April II Sec. I, 2, 3 P. L. 21 623 May I P. L. 40 in part 6s June 4 P. L. 84 in part 166 June 4 P. L. 84 in part 623 June 4 P. L. 88 253 1881 May 10 P. L. 14 in part 623 June 10 P. L. 86 253 June 10 P. L. 106 623 1883 June 4 PL- 65 623 June 4 P. L. 74 623 668 ACTS REPEALED Sec. 1883 June 5 P. L. 88 352 June 13 P. L. 91 166 June 20 P. L. 131 352 June 27 P. L. 163 623 i88s June 5 P. L. 78 in part 166 June 24 P. L. ISS 291 June 24 P. L. ISS 623 June 30 P. L. 203 623 June 30 P. L. 2SI 352 1887 April 13 P. L. S3 352 May 19 Prov. of Sec. I P. L. 125 352 May 25 P. L. 261 352 May 25 P. L. 264 253 June 6 P. L. 359 291 1889 April 4 P. L. 23 6S April 22 P. L. 42 623 April 23 P. L. 48 291 May 7 P. L. 102 in part 166 May 8 P. L. 123 in part 623 May 9 P. L. 146 65 May 9 ( 1st Prov. of Sec. I ).. P. L. 168 352 May 9 P. L. 182 623 May 13 P. L. 190 623 1893 May 19 Sec. 2 P. L. HO 623 May 31 P. L. 188 166 May 31 P. L. 188 in part 291 June 3 P. L. 273 in part 623 June 8 Sec. 5 P. L. 344 253 June 8 P. L. 356 623 June 8 P. L. 392 623 June 12 P. L. 461 65 189s May 8 P. L. 44 in part 623 May 22 P. L. 114 in part 65 June 18 P. L. 197 623 June 24 Sec. i P. L. 236 623 June 24 P. L. 237 in part 65 June 24 P. L. 248 in part 623 June 25 P. L. 305 291 June 26 P. L. 381 in part 65 1897 June 14 P. L. 142 in part 352 June 14 Sec. i P. h- 144 212 June 15 Sec. 1 & 2 P. L. 159 212 June 23 P. L. 200 623 July 9 P. L. 213 in part 253 July 12 P. L. 256 253 July 14 P. L. 269 623 1899 April 28 P. L,. 120 623 April 28 P. L. 157 623 ACTS REPEALED 669 Sec. 1901 May II P. L. 174 in part 623 May 21 P. L. 272 623 June 10 P. L. SSI 352 June 10 P. L. SS3 in part 65 June 14 P. L. S62 623 July 10 Sec. 2, 3, 4 P. L. 639 352 1903 Mar. 5 P. L. 10 623 Mar. 26 P. L. 70 3S2 April 3 P. L. 151 in part 65 April 22 P. L. 241 212 1905 Feb. 28 P. L. 26 291 Mar. 16 P. L. 42 in part 623 Mar. 30 P. L. ^^ 623 Mar. 31 P. L. 91 623 April 6 P. L. 114 623 April 14 P. L. IS3 623 April 18 P. L. 208 166 April 22 Prov. to Sec. i P. L. 297 352 1907 Mar. 22 P. L. 29 623 May 23 P. L. 201 623 May 28 P. L. 271 in part 623 June I P. L. 364 in part 6s June I P. L. 384 in part 623 1909 April I P. L. 79 291 April I P. L. 87 3S2 April I P. L. 95 in part 166 April I P. L. 95 in part 623 April 23 P. L. 156 in part 212 April 27 P. L. 202 in part 623 May 3 P- L- 386 623 May 3 P. L. 391 in part 623 May 6 P. L. 459 623 May 8 P. L. 489 in part 65 1911 April 21 P. L. 79 253 April 27 P. L. 87 291 June I Sec. 3 & 4 P. L. 539 in part 352 June 7 P. L. 702 in part 253 June 8 P. L. 709 166 June 9 Sec. i, 2, 3 P. L. 724 623 June 9 P. L. 744 623 June 10 P. L. 870 623 June 10 P. L. 874 623 June 13 P. L. 890 623 1913 May 23 P. L. 304 65 May 23 ; P. L. 344 623 May 23 P. L. 345 212 May 28 P. L. 369 623 May 28 P- L. 373 623 670 ACTS REPEALED Sec. 1913 June 12 P. L. 470 623 July 19 P. L. 844 166 July 21 P. L. 872 3S2 July 21 P. L. 87s 352 July 21 P. L. 877 623 July 22 P. L. 908 623 1915 April IS P. L. 124 253 April 21 P. L. 145 253 April 21 P. L. 156 166 May 3 P. L. 218 623 May 3 P. L. 234 352 May 6 P. L. 265 623 May 6 P. L. 267 623 May 6 P. L. 269 in part 65 May 14 P. L. 475 623 May 28 P. L. 580 in part 352 May 28 P. L. 635 212 June I P. L. 682 623 June I P. L. 689 623 June II P. L. 949 623 TABLE OF ACTS OF ASSEMBLY RE- FERRED TO IN COMMISSIONERS' REPORT (References are to Sections.) 1683 iioth Law 294, 309, 316, 318, 322, 345 1684 172nd Law 294, 309, 316, 318, 322, 345 1693 3 Sm, L. iS4n 294, 309, 316, 318, 322, 345 1700 3 Sm. L. 155" 345 1705 I Sm. L. 33 215, 242, 265 I Sm. L. 33, Sec. i 266, 270 I Sm. L. 33, Sec. 3 '218. I Sm. L. 33, Sec. 4 220 I Sm. L. 33, Sec. 6 241 I Sm. L. 33, Sec. 7 221 3 Sm. L. I56n 294, 316, 318, 322 3 Sm. L. i56n, Sec. 2 346 3 Sm. L. i56n, Sec. 8 294 3 Sm. L. 15611, Sec. 10 294 3 Sm. L. I57n, Sec, 5 345 1713 Mar. 27 I Sm. L. 81 579 I Sm. L. 81, Sec. 2 385, 387 I Sm. L. 81, Sec. 7 & 12 599 I Sm. L. 81, Sec. 8 127 I Sm. L. 81, Sec. 16 274 1764 Mar. 23 3 6m. L. iSpn, Sec. 2 294, 309 1772 Mar. 21 I Sm. L. 383 470 I Sm. L. 383, Sec. i 466 I Sm. L. 383, Sec. 5 357 I Sm. L. 383, Sec. 7 467 1777 Mar. 14 I Sm. L. 443, Sec. 3 255 I Sm. L. 443, Sec. 6 261 1787 Sept. 29 2 Sm. L. 425 348 1791 Mar. 12 3 Sm. L. 8, Sec. I 255, 258 April 6 3 Sm. L. 20, Sec. 5 262, 465 April 13 3 Sm. L. 28 517 3 Sm. L. 28, Sec. 8 518 3 Sm. Lr 28, Sec. 18 278, 285 Sept. 30 3 Sm.. L. S8, Sec. 2 285 1792 Mar. 31 3 Sm. L. 66 459 3 Sm. L. 66, Sec. 1-3 460 3 Sm. L. 66, Sec. 4 49i, 493 3 Sm. L. 296, Sec. 8 17 April 19 3 Sm. L. 143 340, 415 3 Sm. L. 143, Sec. I 382 671 672 ACTS REFERRED TO 1792 April 19 3 Sm. L. 143, Sec. 3 294, 309, 563 3 Sm. L. 143, Sec. 4 294, 309 3 Sm. L. 143, Sec. s 316 3 Sm. L. 143, Sec. 6 316, 318 3 Sm. L. 143, Sec. 7 316 3 Sm. L. 143, Sec. 8 318 3 Sm. L. 143, Sec. 9 346 3 Sm. L. 143, Sec. 10 344 3 Sm. L. 143, Sec. 11 318 3 Sm. L. 143, Sec. 12 322 3 Sm. L. 143. Sec. 14 391 3 Sm. L. 143, Sec. IS 304.552-3 3 Sm. L. 143, Sec. 16 553 3 Sm. L. 143, Sec. 18 345 3 Sm. L. 143, Sec. 19 432 3 Sm. L. 143. Sec. 20 434 3 Sm. L. 143, Sec. 21 36, 43° 3 Sm. L. I43i Sec. 22 2, 11, 13, 17 3 Sm. L. 143, Sec. 23 243 April 4 3 Sm. L 296, Sec. 1-2 340, 387 3 Sm. L. 296, Sec. 4 418 3 Sm. L. 296, Sec. 5 295, 316, 318 3 Sm. L. 296, Sec. 7 318 3 Sm. L. 296, Sec. 9 542 1800 Mar. 12 3 Sm. L. 433 493 3 Sm. L. 433, Sec. 1,2 493, 494 3 Sm. L. 433. Sec. 3 360, 493, 944 3 Sm. L. 433, Sec. 4, s 493,494 3 Sm. L. 499 44i Sec. 4 388 F. h. 271 459 P. L. 271, Sec. I 460 P. L. 459, Sec. i 30 P. L. 20s, Sec. I SO P. L. iSS, Sec. 6 26 P. L. ISS, Sec. 7 30 P. L. 155. Sec. 8 15 P. L. 15s, Sec. 9 19 P. L. ISS, Sec. 10 432 1808 Mar. 26 P. L. 144, Sec. i 24 P. L. 144, Sec. 2 30 P- L. 96 ". 233 P. L. 191, Sec. 2 432 5 Sm. L. 395 214 P. L. 44, Sec. I 362 P. Iv. 104, Sec. I 572 P- Iv- 183 459 P. L. 183, Sec. 1-3 460 Mar. 24 P. L. 285, Sec. 7 520 1802 April 2 1803 Mar. 28 1804 Mar. 12 Mar. 12 April 2 180s April I 1807 April 7 1810 Mar. 19 181 1 April I 1812 Mar. 31 1814 Feb. 7 1818 Feb. 17 Mar. 10 ACTS REFERRED TO 673 1819 Jan. 21 P. L. 25 340 1821 Feb. 5 P. L. 25, Sec. 2 460 Mar. 30 P. h. 153, Sec. i 605 P. L. 153, Sec. 3 608 P. Iv. 153, Sec. 4 563 1823 Mar. 31 P. L. 2i6 55 P. L. 216, Sec. I 487 April I P. L. 286, Sec. i 542 P. L. 286, Sec. 2 561 1824 Feb. 18 P. L. 25 528 1825 Mar. 22 P. L. 107, Sec. 1-2 587 1826 April 7 P. L. 227, Sec. 5 380 April 8 P. L- 25s 432 1828 April 14 P. L. 453, Sec. 1-2 587 P. L. 484, Sec. 5 39 P. L. 484, Sec. 6 S8, 59 1829 April 3 P. L. 122 384 P. L. 122, Sec. 2 526 1830 April 6 P. L. 272, Sec. 5 289 P. L. 272, Sec. 9 255 1832 Mar. 15 P. L. 135, Sec. i 255, 256 P. L. 135, Sec. 2 257 P. L. 135, Sec. 3 258 P. L. 13s, Sec. 4 261 P. L. 13s, Sec. 5 262 P. L. 135, Sec. 6 355, 590 P. L. 135, Sec. 7 267, 591 P. L. 13s, Sec. 8 268 P. L. 13s, Sec. 9 269 P. L. 135, Sec. 10 265 P. L. 135, Sec. II 220, 265 P. L. 135, Sec. 13 278 P. L. 135, Sec. 14 380 P. L. 135, Sec. IS 392, 539 P. L. 135, Sec. 16 384 P. L. 135. Sec. 17 270 P. L. 135, Sec. 18 359 P. L. 135, Sec. 19 360 P. L. 13s, Sec. 20 361 P. L. I3S, Sec. 21 356 P. L. 135, Sec. 22 357 P. L. 135, Sec. 23 364 P. L. 135, Sec. 24 382 P. L. 135, Sec. 25 280 P. L. 13s, Sec. 26 400 P. L. 13s, Sec. 27 385 P. L. 13s, Sec. 28 387 P. L. 135, Sec. 29 542 P. L. 135, Sec. 30 542 P. L. 135, Sec. 31 28s 43 674 ACTS REFERRED TO 1832 Mar. 15 1832 Mar. 29 P. L. P. L. P. L. P. L. P. h. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. P. L. [35, Sec. 35, Sec. 35. Sec. 35, Sec. ;35, Sec. :3s, Sec. [35, Sec. !35, Sec. [90, Sec. [90, Sec. [90, Sec. 90, Sec. go, Sec. [90, Sec. .90, Sec. [90, Sec. :90, Sec. [90, Sec. 90, Sec. .90, Sec. 90, Sec. go, Sec. .go. Sec. 90, Sec. 90, Sec. :90, Sec. 90, Sec. 90, Sec. [90, Sec. 90, Sec. [90, Sec. [90, Sec. [go, Sec. [90, Sec. [90, Sec. 90, Sec. [90, Sec. 90, Sec. 90, Sec. 90, Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. [90, [90, 90, [90, [90, [90, [90, 90, [90, 90, 32 274 36 289 37 287 38 288 40 158 41 160 42 163, 286 44 388 2 74 4 ••• 93 5 599, 600 6 601 8 605 9 606 10 608 11 563 12 570, S7S 13 607 14 528 15 544 16 550 17 536 18 537 19 552,555 20 346, 543 21 563 22 566,579 23 580 24 578 25 579 26 567,57s 27 569, 577 28 581 29 s6i 30 562 31, CI. I 432 31, CI. II 433 31, CI. Ill 432 32 302, 448 33 434 34 436 35 248 36 2,4,8,22,45 37 II, 17,23 38 12, 17 39 13, 15, 17 40 15, 18 41 26 42 30 43 39, 620 ACTS REFERRED TO 675 1832 Mar. 29 1833 April April P. L. 190, Sec. 44 ■ so P. L. 190, Sec. 45 19 P. L. 190, Sec. 46 4, IS- 17 P. L. 190, Sec. 47 42, 441, 44a P. L. 190, Sec. 48 43 P. L. 190, Sec. 49 43 P. L. 190, Sec. so ." 58 P. L. 190, Sec. SI 59 P. h. 190, Sec. S2 109 P. h. 190, Sec. S3 109, 616 P. L. 190, Sec. S4 438 P. L. 190, Sec. SS 159 P. L. 190, Sec. s6 iSS P. L. 190, Sec. 57 116, 132, 145 P. L. 190, Sec. S7, CI. I 5 P. L. 190,1 Sec. 57, CI. IV 120 P. L. 190, Sec. S7, CI. VI 123 P. L. 190, Sec. 57, CI. VII 123 P. L. 190, Sec. 57, CI. IX & X 125 P. L. 190, Sec. 57, CI. XI 127-9 P. h. 190, Sec. 57, CI. XV 136 P. L. 190, Sec. 57, CI. XVI 147 P. L. 190, Sec. 57, CI. XVII 137 P. L. 190, Sec. 57, CI. XVIII 138 P^ L. 190, Sec. 57, CI. XIX 140 P. L. 190, Sec. 57, CI. XXI 142 P. L. 190, Sec. 57, CI. XXV 133 P. L. 190, Sec. 58 107,112 P. L. 190, Sec. 59 163 •p. L. 190, Sec. 60 150 P. L. 207, Sec. I 341 P. L. 249, Sec. I, 2, 3 214 P. L. 249, Sec. 4 224 P. L. 249, Sec. 5 223 P. L. 249, Sec. 6 21S P. L. 249, Sec. 7, CI. I 218 P. L. 249, Sec. 7, CI. II 219 P. L. 249, Sec. 8 221 P. L. 249, Sec. 9 230 P. L. 249, Sec. 10 228 P. L. 249, Sec. II 24s P. L. 249, Sec. 12 233, 266 P. L. 249, Sec. 13 241 P. L. 249, Sec. 14 242 P. L. 249, Sec. 15-16 243 P. L. 249, Sec. 17 250 P. L. 249, Sec. 18, 252 P. L. 315, Sec. I 294 P. L. 315, Sec. I, CI. I 295 P. L. 31S, Sec. I, CI. II 296 676 ACTS REFERRED TO 1833 April 8 P. L. 31S, Sec. 2, CI. 1 309 P. L. 31S, Sec. 2, CI. II 310 P. L. 315, Sec. 2, CI. Ill 311 P. L. 31S, Sec. 2, CI. IV 313 P. L. 315. Sec. 3 316 P. L. 3i5> Sec. 4, CI. I 318 P. L. 315, Sec. 4, CI. II 319 P. L. 315, Sec. 4, CI. Ill 321 P. h. 31S, Sec. 4, CI. IV 320 P. L. 315, Sec. 5 316 P. L. 315. Sec. 7 322 P. L. 31S. Sec. 8 323 P. L. 31S, Sec. 9 332 P. L. 315, Sec. 10 340 P. L. 31S, Sec. 11 332 P. L. 31S, Sec. 12 348 P. L. 31S. Sec. 13 344 P. L. 31S. Sec. 14 343 P. L. 315, Sec. 15 304 P. L. 31S, Sec. 16 346 P. L. 315. Sec. 17 333 P. L. 315, Sec. 19 345 P. L. 31S, Sec. 20 349 1834 Feb. 24 P. L. 73, Sec. i 391 P. L. 73, Sec. 2 401 P. L. 73, Sec. 3 399 P. L. 73, Sec. 4 403 P. L. 73, Sec. 5 394 P. L. 73, Sec. 6 395 P. L. 73, Sec. 7 : 396 P. L. 73, Sec. 8 397 P. L. 73, Sec. 9 398 P. L. 73, Sec. 10 402 P. L. 73, Sec. II 399 P. L. 73, Sec. 12 493 P. L. 73, Sec. 13 491 P. L. 73, Sec. 14 494 P. L. 73, Sec. 15 4S9 P. L. 73, Sec. 16 463 P. L. 73, Sec. 17 461 P. L. 73, Sec. 18 459, 462 P. L. 73, Sec. 19 38,455,496 P. L. 73, Sec. 20 430 P. L. 73, Sec. 21 41S P. L. 73, Sec. 22, 23 416 P. L. 73, Sec. 24, 2S 418 P. L. 73, Sec. 26 S17 P. L. 73, Sec. 27 S18 P. L. 73, Sec. 28 512, 523 P. L. 73. Sec. 29 S15 ACTS REFERRED TO 677 1834 Feb. 24 P. L. 73, Sec. 30 468,516 P. L. 73, Sec. 31 363 P. L. 73, Sec. 32 520 P. L. 73, Sec. 33 426-7 P. L. 73, Sec. 34 422 P. L. 73, Sec. 35 428 P. L. 73, Sec. 36 429 P. L. 73, Sec. 37 521 P. L. 73, Sec. 38 552 P. L. 73, Sec. 39 555 P. L. 73, Sec. 40 555 P. L. 73, Sec. 41 37, 447, 553 P. L. 73, Sec. 42 36 P. L. 73, Sec. 43 437 P. L. 73, Sec. 44 34 P. L. 73, Sec. 44 34 P. L. 73, Sec. 45 37, 43, 447 P. L. 73, Sec. 46 40, 469 P. L. 73, Sec. 47 466, 555 P. L. 73, Sec. 48 466 P. L. 73, Sec. 49 469 P. L. 73, Sec. 50 470 P. h. 73, Sec. 51 467 P. L. 73, Sec. 52-6 470 P. L. 73, Sec. 57, 58 553 P. L. 73, Sec. 59 47i P. L. 73, Sec. 60 472 P. L. 73, Sec. 61 473 P. L. 73, Sec. 66 262, 465 P. L. 73, Sec. 67 362 P. L. 73, Sec. 68 365 April 14 P. L. 341, Sec. 37-41 75 P. t. 341, Sec. 55 85 P. L. 341, Sec. 56 88 P. L. 341, Sec. 57 108 1835 April 14 P. L. 275, Sec. 2 6 P. L. 275, Sec. 4 164 1836 Mar. II P. L. 76, Sec. 12 565 June 14 P. L. 628, Sec. 6 388 P. L. 628, Sec. 16, 17 565 P. L. 628, Sec. 18 587 P. L. 628, Sec. 19-21 565 P. L. 628, Sec. 23-26 587 June 16 P. L. 682, Sec. 2 164 P. L. 682, Sec. 3 592 P. L. 767 130 P. L. 784, Sec. 19 93 P. L. 784, Sec. 19, CI. IV 98 P. L. 784, Sec. 19, CI. V 100 P. L. 784, Sec. 19, CI. VI loi 678 ACTS REFERRED TO 1836 June 16 P. L. 784, Sec. 19, CI. VII 102 P. L. 784, Sec. 19, CI. VIII 104 P. L. 784, Sec. 19, Cond io6 P. L. 784, Sec. 20 146 P. L. 784, Sec. 21 107 P. L. 784, Sec. 22 151 1838 Mar. 17 P. L. 80, Sec. 2 589 1839 July 2 P. L. SS9, 87 1840 April 13 P. L. 319, Sec. I 552 P. L. 319, Sec. 4 a 1840 June 3 p. L. 593, Sec. i 260 Oct. 13 P. L. (1841) I, Sec. I 551 1842 Mar. 12 P. L. 66, Sec. 5 592 April 5 P. L. 234, Sec. 9 2 P. L. 234, Sec. IS 63 July 16 P. L. 374, Sec. 52 425 July 27 P. L. 439, Sec. 15 179 1843 April 4 P. L. 131, Sec. 8 75 April 13 P. L. 235, Sec. 10 130 April 24 P. L. 359, Sec. 8 4 1844 April 6 P. L. 214, Sec. 1 24 May 6 P. L. 364, Sec. 2 234 184s April IS P. L. 4S8, Sec. i 30 June 18 P. L,. 197 418 1846 April 20 P. L. 411, Sec. 2 161 P. L. 411, Sec. 3 162 April 21 P. L. 426, Sec. I a P. L. 430, Sec. 2 131 April 22 P. L. 483, Sec. I 566, 584 1847 Mar. 13 P. L. 319, Sec. i, first part 2 P. h. 319, Sec. I, last part 14 1848 Jan. 27 P. L. 16, Sec. i 216 Feb. 8 P. L. 27, Sec. i 459 April II P. L. 536, Sec. 7 214 P. L. 536, Sec. II 245, 296 1849 April 2 P. L. Sii, Sec. 2 464 April 9 P. L. 524, Sec. 4 42 P. L. 524, Sec. s 514 P. L. 524, Sec. 13 520 P. L. 524, Sec. 16 445 April 10 P. L. 591, Sec. 10 2,8,584 1850 Mar. 14 P. L. 195, Sec. i & 2 495 April 25 P. L. 569, Sec. I 579 P. L. S6g, Sec. 2 31 P .L. 569, Sec. 10 ; 20 P. L. 569, Sec. 18 89 P. L. 569, Sec. 44 • 603 April 26 P. L. 577, Sec. 23-3 59, 487 May 15 P. L. 764, Sec. 8 592 ACTS REFERRED TO 679 1851 April 3 P. L. 30s, Sec. 1-4 185 P. L. 30s. Sec. 5 437 P. L. 305, Sec. 6 460 P. L. 30s, Sec. 10 260 April 14 P. L. 612, Sec. s 403, 404, 406 April 15 P. L. 669, Sec. 18 512-22 1853 Feb. 2 P. L. 31, Sec. i 564 Feb. 23 P. L. 98, Sec. i 474-7 P. L. 98, Sec. 2 478 P. L. 98, Sec. 3 479 P. L. 98, Sec. 4 480 April 18 P. L. 503, Sec. i 168, 170, 203 P. L. 503, Sec. 2 17s, 180, 182 P. L. 503, Sec. 3 183 P. L. 503, Sec. 4 174, 184, 192-4, 437, 439 P. L. 503, Sec. s 186, 187, 208 P. L. .S03, Sec. 6 186, i8g, 190, 192 P. L. S03, Sec. 7 171 P. L. 503, Sec. 8 210 P. L. 503, Sec. 10 192 1854 Feb. 20 P. L. 89, Sec. i Si.52, S6 Mar. 6 P. L. 155, Sec. i 85 Mar. 24 P. L. 214, Sec. I 524 April 13 P. L. 368, Sec. 1 195 P. L. 368, Sec. 2 528 P. L. 368, Sec. 3 168 1854 May S P. L. 570, Sec. i 522 1855 April 12 P. L. 214, Sec. i 57 April 26 P. L. 328, Sec. 11 222 April 27 P. L. 368, Sec. i 231 P. L. 368, Sec. 2 323, 343 P. L. 368, Sec. 3 334 P. L. 368, Sec. 4 8, 9 P. L. 368, Sec. 5 168 May 3 P. L. 415. Sec. S 587 May 4 P. L. 430, Sec. i 245, 296 P. L. 430, Sec. S 306, 307 P. L. 430, Sec. 6 226 P. L. 430, Sec. 7 338 1856 April II P. L. 315. Sec. 4 559 April 17 P. L. 386, Sec. i 51. 52, S3 P. L. 386, Sec. 2 9, 33 April ig P. L. 458, Sec. 4 273 April 21 P. L. 486, Sec. i 168 P. L. 495, Sec. I 596 P. L. 495, Sec. 2 597 April 22 P. L. 532, Sec. 2 461 P, L. 532, Sec. 7 276 P. L. 532, Sec. 8 383, 494 P. L. 532, Sec. 10 16 68o ACTS REFERRED TO i8s7 Mar. 14 P. L. 97. Sec. 3 175 May 14 P. L. 507, Sec. i 337 1858 April 21 P. L. 413. Sec. i 337 1859 Mar. 13 P. L. 611, Sec. I* 586 Mar. 22 P. L. 207, Sec. i 439 April 6 P. L. 384, Sec. i SiP April 7 P. L. 406, Sec. i 566, 575, 578 P. L. 406, Sec. 6 571 April 8 P. L. 42s, Sec. i 403 April 13 P. L. 604, Sec. i 559 P. L. 611, Sec. I 586 1861 May I P. L. 4201 482 P. L. 420, Sec. I 487 P. L. 420, Sec. 2 488 P. L. 431, Sec. I 4+» P. L. 431, Sec. 2 443-4 P. L. 680, Sec. I S66, 573- 575 P. L. 680, Sec. 2 568 1863 April I P. L. 187 195 P. L. 20s, Sec. 1 156 April II P. L. 341, Sec. i 44 1864 Mar. 17 P. L. 53, Sec. i 538 April 18 P. L. 462, Sec. I 173 April 23 P. L. SSO 584 April 27 P. L. 641, Sec. i 45 Aug. 25 P. L. 1029, Sec. I 604 1865 Mar. 22 P. L. 30 176 P. L. 31, Sec. I 4 Mar. 27 P. L. 44, Sec. i, 2, 3 582 P. L. 45, Sec. I 38 Nov. 27 P. L. (1866) 1227 410,411 1866 April II P. L. 780 176 April 17 P. L. 108 19s P. L. Ill, Sec. I 582 May 17 P. L. 1096, Sec. i 471 P. L. 1096, Sec. 2 487, 488 1867 Jan. 7 P. L. 1367, Sec. i 27 Feb. 13 P. L. 160 4 Mar. 23 P. L. 43, Sec. i 195 P. L. 43, Sec. 2 208 April 15 P. L. 86 542 1868 April 2 P. L. 10, Sec. 7 287 April 9 P. L. 78s, Sec. i 574 April 14 P. L. 97, Sec. i 508 P. L,. 97, Sec. 2 509 P. L. 97, Sec. 3 510 P. L. 97, Sec. 4 511 April 28 P. L. 105, Sec. i 38 1869 Feb. 18 P. L. 183 550 Feb. 26 P. L. 4, Sec. i 2 ACTS REFERRED TO 68i 1869 Mar. 18 P. L. 409 497 Mar. 27 P. L. 488 60s Mar. 30 P. L. iS, Sec. i 54 April 12 P. L. 27 512-22 April 13 P. L. 28, Sec. i 43 April 17 P. L. 70, Sec. I 469. 539 P. L. 72, Sec. I SOI P. L. 72, Sec. 2 50-2 P. L. 72, Sec. 3 504 P. L. 72, Sec. 4 505 P. L. 72, Sec. s, 6 503 P. L. n. Sec. I 24s P. L. IT, Sec. 2 2 P- L. 269 373 P. L. 269, Sec. I 469, 588 P. L. 274, Sec. I 37, 46 P. L. 274, Sec. 2 37 P. L. 279, Sec. I 596 P. L. 387 421 P. L. 387, Sec. I 461 P. L. 173 271 P. L. 44, Sec. I 59a P. L. 49, Sec. I 130 P. L. 156, Sec. I 55 P. L. 156, Sec. 2 51 P. L. 156, Sec. 3 3 P. L. 166, 32 P. L. 194, Sec. 1,2 358 P. L. 19s, Sec. I 592 P. L. 206, Sec. I 67 P. L. 206, Sec. 2 69 P. L. 206, Sec. 3 68 P. L. 206, Sec. 4 108 P. L. 206, Sec. 6 93, 549 P. L. 206, Sec. 7 114 P. L. 206, Sec. 8 163 P. L. 206, Sec. 9 107 P. L. 206, Sec. 10 86 May 24 P. L. 131, Sec. 1-4 70-73 June 8 P. L. 277, Sec. I 172 187s Mar. 4 P. L. 5, Sec. i 75 Mar. 18 P. L. 29, Sec. i 91, no, 548 1876 April 7 P. L. 19 69 April 28 P. L. SO, Sec. i 446 May 8 P. L. 133, Sec. i S28 Mar. 24 P. L. ZT, Sec. i 287 P. L. 140, Sec. I 23 1877 Feb. 16 P. L. 3, Sec. i 381 P. L. 37, Sec. 2 256 April 20 I87I May 17 May 23 May 25 June 15 1872 1873 1874 Feb. 27 April 8 Mar. 27 May 14 May IS May 19 682 ACTS REFERRED TO 1878 May 22 P. L. 83, Sec. i 441 P. L. 83, Sec. 2-3 447 . P. L. 98, Sec. I 593 May 24 P. L. 131, Sec. 5 iii 1879 April II P. L. 21 95 P. L. 21, Sec. I 617 P. L. 21, Sec. 2 618 P. L. 21, Sec. 3, 4 619 May I P. L. 40 8 June 4 P. L. 84 550 P. L. 88, Sec. I 227 P. h. 88, Sec. 2 235 P. L. 88, Sec. 3 239 1881 May 5 P. L. 12 68 May 10 P. L. 14 582 June 10 P. L. 96, Sec. 1,2 225 P. L. 106 559 1883 June 4 P. L. 6s, Sec. i 449 P. L. 74, Sec. I 407 P. L. 74, Sec. 2 408 P. L. 74, Sec. 3 409 June 5 P. L. 88, Sec. i 334 June 13 P. L. 91 68 P. L. 97 68 June 20 P. L. 131 341 June 27 P. L. 163, Sec. i 594 1885 May 28 P. L. 24, Sec. i 593 June s P. L. 78 148, 561 June 24 P. L. ISS, Sec. l 273, 368 P. L. 155, Sec. 2 368 P. L. 155, Sec. 3 369 P. L. 155, Sec. 4 370 P. L. 15s. Sec. 5 373-4 P. L. 155, Sec. 6 375 P. L. 155. Sec. 7 379 June 30 P. L. 203, Sec. 1,2 560 P. L. 251, Sec. I 343 1887 April 13 P. L. 53, Sec. i 338-9 P. L. 72 68 P. L. 125, Sec. I 338 P- L- 158 153 P. L. 261, Sec. I, CI. I-IV 325-331 P. L. 261, Sec. 2 332 P. L. 264, Sec. I 226 P- L- 3S9, Sec. i 281 P. L. 332 214 P- L- 359, Sec. 2 282 P. L. 359, Sec. 3 283 P- Iv. 359, Sec. 4 284 April 13 April 28 May 19 May 23 May 25 June I June 3 June 6 ACTS REFERRED TO 683 1889 April 4 P. L. 23, Sec. i 61 April 22 P. L. 42, Sec. i 533-4 April 23 P. L. 48, Sec. i 275 April 25 P. L. 52 87 May 7 P. L. 102, Sec. 1 113 May 8 P. L. 123, Sec. i S98 May 9 P. L. 146, Sec. i 2 P. L. 168, Sec. I 338 P. L. 182, Sec. I 450 May 13 P. L. 190 598 P. L. 190, Sec. I 596 P. L. 190, Sec. 2 597 1891 May 20 P. L. 98, Sec. i 593 1893 May 19 P. L. no, Sec 2 454 May 31 P. L. 188, Sec. i 90, 271 P. L. 188, Sec. 2 90, 272 June 3 P. L. 273, Sec. i, 2, 3 583 June 8 P. L. 344, Sec. s 214 P. L. 356, Sec. I 483 P. L. 392, Sec. I 418 P. L. 392, Sec. 2 456 P. L. 392, Sec. 3 457 P. L. 392, Sec. 4 458 June 12 P. L. 461 30 P. L. 461, Sec. I 32 189s Mar. 28 P. L. 31 68 May 8 P. L. 44, Sec. i 483-6, 490 P. L. 44, Sec. 2 486 P. L. 44. Sec. 3, 4 489 May 22 P. L. 1 14, Sec. i 47 June 24 P. L. 236, Sec. i 512-22 P. L. 237, Sec. I 29 P. L. 248, Sec. I, 2 390 •' June 25 P. L. 305, Sec. i 276 June 26 P. L. 381, Sec. i, 2 4 1897 May 19 P. L. 72, Sec. 22 163 June 14 P- L. 142, Sec. i 334 P. L. 144 182 P. L. 144, Sec. I 175, 177 June 15 P. L. 159 177 P. L. 159, Sec. 6 189 June 23 P. L. 200, Sec. I 593 July 9 P. L. 213, Sec. i 232 July 12 P. L. 256 234 July 14 P. L. 268 17s P. L. 269, Sec. I 481-2 P. L. 269, Sec. 2 488 1899 April 28 P. L. 120, Sec- 1 471 P. L. 157, Sec. I 459 P. L. 157, Sec. 2 461 684 ^CTS REFERRED TO 1899 April 28 P. L. IS7, Sec. 3 462 P. L. 157, Sec. 4 463 1901 April 4 P. L. 66 453 April II P. L. 71 68 May 2 P. L. 117 68 May II P. L. 174, Sec. 1,2 525 May 21 P. L. 272, Sec. i 449 P. L. 272, Sec. 2 450 June 7 P. L. S13 449 June 10 P. L. 551. Sec. i 334 P. L. 553 4 June 14 P. L. 562, Sec. i 418 P. L. 562, Sec. 2 420 July 10 P. L. 639, Sec. 2 334 P. L. 639, Sec. 3 335 P. L. 639, Sec. 4 336 July 11 P. L. 6S5 68 P. L. 6S7 68 July 18 P. L. 669 68 1903 Mar. 5 P. L. 10, Sec. i 506 P. L. 10, Sec. 2 507 Mar. 26 P. L. 70, Sec. i 336 April 3 P. L. 151, Sec. i & 2 25 April 22 P. L. 241 19s 1905 Feb. 28 P. L. 26 285 Mar. 16 P. L. 42, Sec. i 535 Mar. 30 P. L. 77, Sec. i, 2, 3 617 Mar. 31 P. L. 91 598 April 6 P. L. 1 14, Sec. 1 523 April 14 P. L. IS3, Sec. i, 2, 3 376-8 April 18 P. L. 208 81 April 20 . P. L. 239 445 April 22 P. L. 297, Sec. i 338 1907 Mar. 5 P. L. 6 240 Mar. 22 P. L. 26 68 P. L. 29 471 Mar. 23 P. L. 201 558 Mar. 25 P. L. 260 68 Mar. 28 P. L. 271, Sec. 1, 2 531 P. L. 292, Sec. 6 176 June I P. L. 364 16, 21 P. L. 384, Sec. 1-4 582 1909 April I P. L. 79, Sec. i 277 P. L. 87 294, 296-7 P. L. 95 550 April 27 P. L. 202, Sec. 1,2 561-2 May 3 P. L. 386, Sec. i 418, 419. 421 P. L. 386, Sec. 2 423 P. L. 386, Sec. 3 424 P. L. 386, Sec. 4 425 ACTS REFERRED TO 685 1909 May 3 P. L. 386, Sec. S 4i8 P. L. 391, Sec. I S4S-7 May 6 P. L. 459 403 May 8 P. L. 481, Sec. i 16, 21 1911 April 21 P. L. 79, Sec. i 246 P. L. 79, Sec. 2 247 P. L. 79, Sec. 3 249 April 27 P. L. 87, Sec. i 256 P. L. loi, Sec. 5 76 June I P. L. 539, Sec. 3 338 P. L. 539, Sec. 4 338-9 June 7 P. L. 701, Sec. i 222 June 8 P. L. 709, Sec. i I54 June 9 P. L. 724, Sec. 1,2 45' P. L. 724, Sec. 3 452 P. L. 744 608 June 10 P. L. 870, Sec. i 556 P. L. 870, Sec. 2, 3 557 P. L. 874 38 P. L. 874, Sec. I 455, 496 P. L. 874, Sec. 2 496 June 13 P. L. 890 592 1913 April 15 P. L. 72 240 May 23 P. L. 304 30, 33 P. L. 344 402 P- L. 345 170 May 28 P. L. 369, Sec. I 366 P. L. 369, Sec. 2 368 P. L. 369, Sec. 3 369 P. L. 369, Sec. 4 370 P. L. 369, Sec. s 371 P. L. 369, Sec. 6 372 P. L. 369, Sec. 7 373 P. L. 373, Sec. 1,2 367 P. L. 373, Sec. 3 368 P. L. 373, Sec. 4 369 P. L. 373, Sec. 5 370 P. L. 373, Sec. 9 366 June 12 P. L. 470 451 July 19 P. L. 844, Sec. 1-5 81-4 July 21 P. L. 871 452 P. L. 872, Sec. I 299 P. L. 872, Sec. 2 300 P. L. 875 296-7 P. L. 87;^ 403-6 July 22 P. L. 908, Sec. i 498 P. L. 908, Sec. 2 500 igiS Mar. 31 P. L. 41 87 April 2 P. L. 43 593 April 10 P. L. 112 4J2 686 ACTS REFERRED TO 1915 April IS P. L. 124 224-5 April 21 P. L. 14s 225 P. L. 156, Sec. i-S 77-80 April 28 P. L. 198 259 May 3 P. L. 218, Sec. i 350 P. L. 218, Sec. 2,3,4 389 P. L. 234 306-7 May 6 P. L. 265, Sec. i S54 P. L. 267 402 P. L. 269, Sec. I 3 May 14 P. L. 475 4i8, 424 May 28 P. L. s8o 338 P. L. 635, Sec. I 204 June I P. L. 681, Sec. 1,2 410 P. L. 681, Sec. 3-6 4" P. L. 689 378 June II P. L. 94S 373-4 (*So printed in the Act but evidently an error for April 13.) 10 14 IS 21 17 (a) 23 i8(a) 26 20 29 23(a) 32 24 34 29 39 35 (a) 45 40 60 CITATIONS Orphans' Court Partition Act of 1917, P. L. 337. Section Section of act. herein. Citation. 1 (a) 2 Gilpin v. Brown, 268 Pa. 398, 112 Atl. 124. Stockdale's Est., 29 Dist. 1013. 2 4 Herdle's Est., 29 Dist. 817. Klump's Est., 50 Pa. C. C. 99, 29 Dist. 1004. Gilpin V. Brown, 268 Pa. 398, 112 Atl. 124. Dodd's Est., I Wash. 236. Battersby's Est., 29 Dist. 221. Dodd's Est., I Wash. 236. Battersby's Est., 29 Dist. 221. ■ Fogelsanger's Est, 267 Pa. 321, no Atl. 172. Whitaker's Est., 30 Dist. 814, 35 York 99. Dodd's Est., I Wash. 236. Klase's Est., 18 North 46. Dodd's Est., I Wash. 236. Orphans' Court Act of 1917, P. L. 363. 9 (i) loi Owen's Est., 28 Dist. 667. Wykoff V. Manzer, 22 Lack. 308. Stapler v. Atkinson, 27 Dist. 995. Hagerman's Est., 47 Pa. C. C, 498, 28 Dist. 384. Wyant's Est., 33 York 208. Hayden's Est., 28 Dist. 39. Storer's Est., 28 Dist. 215. Seidman's Est, 20 Lack. 176. Di Battista's Est, 20 Dist. 988. Bleakley's Est, 28 Dist. 289, 15 Del. 199, 37 Lane. 29. Bleakley's Est., 28 Dist. 289, 15 Del. 199, 37 Lane. 39. Byerly's Est., 258 Pa. 410, 102 Atl. 143. Klagholz's Est., 27 Dist. 95. (b) 160 Wand's Est, 50 Pa. C. C. 516. Revised Price Act of 1917, P. L. 388. 168 Behringer's Est, 265 Pa. in, 108 Atl. 414. Garrison's Est, 65 P. L. J. 778. Jeflferies' Est, 37 Lane. 435. Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282. Maule's Est, 37 Lane. 231. St Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327. Janney's Est., 27 Dist. 709. Scott's Est., 49 Pa. C. C. 295. Act of May 2, 1919, P. L. m. Behringer's Est., 265 Pa. iii, 108 Atl. 414. Prey's Est., 50 Pa. C. C. 468. Myers v. Crick, 271 Pa. 399. 687 (J) 102 (1) 104 10 107 15 113 17 (a) 116 20 (b) I 152 2 153 3 154 21 (a) 159 (a) 169 (f) 174 (a) 176 Section Section of act. herein. 2(b) 177 (d) 179 (f) 181 4 183 8 188 la 191 13 192 20(b) 206 688 CITATION OF CASES Citation. St. Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327. Patterson v. Reed, 260 Pa. 219, 103 Atl. 735. Behringer's Est., 265 Pa. in, 108 Atl. 414. Behringer's Est., 265 Pa. iii, 108 Atl. 414. Act of July II, 1917, P. L. 790. Myers v. Crick, 271 Pa. 399. Act of July II, 1917, P. L. 790. St. Joseph's Church, 49 Pa. C. C. 315, 16 Sch. 327. Mauch's Est., 47 Pa. C. C. 490, 67 P. L. J. 308, 16 North. 40s, 33 York. 45. Wills Act of 1917, P. L. 403. 2 215 Hodgson's; Est, 270 Pa. 210, 112 Atl. 778. Kris' Est., 30 Dist. 166. Perry's Est. 67 P. L. J. 216. Setter's Est, 265 Pa. 202, io8' Atl. 614. Weber's Est, 12 Berks 12, aff'd in 268 Pa. 7, no Atl. 785. Wilson V. Cook, 49 Pa. C. C. 16. 3 216 Perry's Est., 67 P. L. J. 216. Kris' Est., 30 Dist. 166. 5 221 Henninger's Est., 30 Dist 413. 6 222 Channon's Est., 28 Dist 479, aff'd in 266 Pa. 417, 109 Atl. 756. Eb/s Est., No. 2, 37 Lane. 329, 30 Dist. 338. McNultys Est., 29 Dist. 709. 8 (a) 224 Boyd's Est., 50 Pa. C. C. 163, 10 West 47, aff'd in 270 Pa. 504. McLain's Est., i Wash. 220. (b) 225 Act of June 12, 1919, P. L. 443- Boyd's Est, 50 Pa. C. C. 163, 10 West. 47, aff'd in 270 Pa. 504. McLain's Est., i Wash. 220. Annear's Est., 29 Dist. 44. Duffy'si Est, 49 Pa. C. C. 30, 29 Dist. 379. Spark's Est., 30 Dist. 85. Rosenfeld v. Wahal, 48 Pa. C. C. 362. English's Est 270 Pa. I, 112 Atl. 913. Segelbaum's Est., 24 Dauphin 274. 15 (a) 233 Garnier v. Gamier, 16 North. 205. Hill's Est., 30 Dist. 477, 69 P. L. J. 177. 348. Moore's Est, 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. Wagenhorst's Est., 12 Berks 89. (b) 234 Fetherolf's Est., No. 2, 29 Dist. 479, 12 Berks 62. Garnier v. Garnier, 16 North. 205. Moore's Est, 30 Dist 152, 68 P. L. J. 670, l^ Del. 367. Stock's Est., 49 Pa. C. C. 203, 29 Dist. 376. (c) 23s Garnier v. Garnier, 16 North. 205. Gregg's Est., 266 Pa, 189, 109 Atl. 177. Jackson's Est., 28 Dist. 943, 68 P. L. J. 613. 9 227 II 229 12 230 14 232 20(a) 241 (b) 242 21 243 CITATION OF CASES 689 Section Section of act. herein. Citation. tS (c) 235 Kane's Est,, 69 P. L. J. 820. McNulty's Est., 291 Dist. 709. 16 (a) 236 Boyd's Est., 50 Pa. C. C. 163, 10 West. 47, aff'd in 270 Pa. S04. Moore's Est., 30 Dist., 152, 68 P. L. J. 670, 15 Del. 367. (b) 237 Boyd's Est, so Pa. C. C. 163, 10 West. 47, aff'd in 270 Pa. 504. Hill's Est., 30I Dist. 477, 69 P. L. J. 177, 348. Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. 17 238 Greave's Est., 29 Dist. 577. Gruner's Est., 29 Dist. 1095, 49 Pa. C. C. 642. Mulgrew's Est., 69 P. L,. J. 169. Setter's Est., 265 Pa. 202, 108 Atl. 614. Seiter's Est., 265 Pa. 202, 108 Atl. 614. Act of May 20, 1921, (P. L. 937). Boyd's Est., 50 Pa. C. C. 163, 10 West. 47, aff'd in 270 Pa. 504. Greave's Est., 29 Dist. 577. Pfanenschmidt's Est., 35 Montg. 135. Shestack's Est., 267 Pa. 115, no Atl. 166. Shoch's Est, 29 Dist 1163, aff'd in 271 Pa. 158. 23 (a) 245 Collom's Est, 47 Pa. C. C. 434, 28 Dist 503. Dodd's Est., I Wash. 236. Flower's Est, 30 Dist. 967. Langerwisch's Est., 47 Pa. C. C. 121, 28 Dist. 470, 8 Leh. 147, aff'd in 267 Pa. 319, no Atl. 165. Schreckengost's Est., "jy Super. 235. Young's Est., I Wash. 250. (b) 246 Lehman's Est., 33 York 113, 8 Leh. 315. Flower's Est., 30 Dist. 967. Young's Est., I Wash. 250. (c) 247 Flower's Est, 30 Dist. 967. (d) 248 Haack's Est, 30 Dist 669. Flower's Est., 30 Dist. 967. 26 252 Gamier v. Gamier, 16 North. 205. Mulligan's Est., 47 Pa. C. C. 546, 28 Dist. 309. Perry's Est, 67 P. L. J., 216. Young's Est., I Wash. 250. Register of Wills Act of 1917, P- L. 415. 3 262 Cook's Est., 47 Pa. C. C. 84, 27 Dist. ioo6. 4 263 Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006. Winsor's Est,, Pa. C. C. 105, 27 Dist. loio, 32 York 131, aff'd in 264 Pa. 552, 107 Atl. 888. 5 264 Burtop's Est, 66 P. L. J. 765. Sharpless' Est., ig Del. 16, 20 Luz. 161, 28 Dist. 746. Wehry's Est., 27 Pa. C. C. 486, 15 Sch. 262, 33 York 68. 8 267 Fleming's Est, 265 Pa. 399, 109 Atl. 265. 9 268 Fleming's! Est., 265 Pa. 399, 109 Atl. 265. 44 ien. 292 1(a) 294 (b) 29s 2(a) 296 690 CITATION OF CASES Section Section of act. herein. Citation. 16 (a) 276 Burtop's Est, 66 P. L. J. 765. Fonda's Est., s Northumb. 249. Henry's Est., 30 Dist. 945, 69 P. L. J. 737, 35 York 122. 18 279 Wand's Est., 50 Pa. C. C. 516. 19 280 Cross' Est., I Erie 83. 20 (a) 281 Alexander's Est., 28 Dist. 993, 33 York i. (d) 284 Alexander's Est., 28 Dist. 993, 33 York i. 21 (a) 28s Burtop's Est., 66 P. L. J. 765. Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006. Winsor's Est., 47 Pa. C. C. 105, 27 Dist. loio, 32 York 131, aff'd in 264 Pa. 552, 107 Atl. 886. 24 289 Act of April 16, 1921, P. L. 94. Intestate Act of 1917, P. L. 429. Miles' Est, S. C. Oct 1921, No. 61-2. Caldwell v. Caldwell, 70 Super. 332. Comm. V. Rife, 50 Pa. C. C. 22. Act of July II, 1917, P. L. 755- Brady's Est., 29 Dist. 24. Carrell's Est., 264 Pa. 140. Collom's Est., 47 Pa. C. C. 434, 28 Dist 503. Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255. Dodd's Est., I Wash. 236. Langerwisch's Est, 47 Pa. C. C. 121, 28 Dist. 470, 8 Leh. 147, aflf'd in 267 Pa. 319, no Atl. 165. McDonald's Est, 49 Pa. C. C. 423, i Wash, 10, rev'd in 268 Pa. 486, 112 Atl. 98. McNulty's Est., 29 Dist. 709. Nolan's Est, 68 P. L. J. 588, 2 Erie in, 21 Lack. 239, 9 Leh. 57. Pfanenschmidt's Est., 35 Montg. 135. Shestack's Est., 267 Pa. 115, no Atl. 166. Shoch's Est, No. 1, 271 Pa. 158, aff'g 29 Dist. 1163. Troutman's Est., 30 Dist. 708. Wandall's Est, 29 Dist. 1132. (b) 297 Desmond's Est, 28 Dist 231, 36 Lane. 218, 8 Leh. 255. Hilton's Est., I Wash. 125. Troutman's Est., 30 Dist. 708. (d) 299 Troutman's Est., 30 Dist 708. (f) 301 Fretz's Est, 28 Dist. 645. 3 304 Stockdale's Est., 29 Dist. 1013. 5 306 Phillips' Est., 271 Pa. 129. 6 307 Cannavan's Est., 69 P. L. J. 84. Lawton'g Est., 266 Pa. 558, 106 Atl. 699. Post's Est., 27 Dist 748, 36 Lane. 8, 66 P. L. J. 761, 8 Leh. 115, 33 York n. Schreckengost's Est., yy Super. 235. 8 316 Manzke's Est., 13 Berks 152. CITATION OF CASES 691 Section of act. .9(d) Section herein. 19 25 27 28 321 322 323 Citation. Pa. C. C. 12 324 13 332 16(a) 338 (b) 339 18 342 General 2(a) 343 349 351 352 353 355 (c) 3Sr (d) 358 3 (d) 362 4 6(a) (h) 364 366 373 7(a) 8(a) 380 382 614, 30 Dist. 88s, 68 (b) 383 Wightman's Est., 49 P. L. J. 833. Brodie's Est., 30 Dist. 654. Miles' Est., S. C. Oct. Term 1921, No. 61-2. Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. Brodie's Est., 30 Dist. 654. Miles' Est, S. C. Oct. Term 1921, No. 61-2. Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. Brodie's Est., 30 Dist. 654. Miles' Est., S. C. Oct. Term 1921, No. 61-2. Miller v. Brown, 49 Pa. C. C. 332. Comm. V. Gross, 35 York 93. Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. Moore's Est., 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. Maurer v. Straub, 16 Sch. 174. Wightman's Est., 49 Pa. C. C. 614, 30 Dist. 885, 68 P. L. J. 833. Brodie's Est., 30 Dist. 654. Miles' Est, S. C. Oct. Term 1921, No. 61-2. Wightman's Est., 49 Pa. C. C. 614, 30 Dist 885, 68 P. L. J. 833. Foreign Intestate's Est., 68| P. L. J. i. Hilton's Est., I Wash. 125. Hilton's Est., I Wash. 125. Fiduciaries Act of Huber's Est., 27 Dist Blessing's Est, 29 Dist. 3, aff'd in 267 Pa. 380. Boyko's Est., 49 Pa. C. C. 495, 21 Lack. 161. Hanshaw's Est., 22 Dauphin 178. Sharpless' Est, 28 Dist 746, 15 Del. 16, 20 Luz. 161. Shontz's Est., 71 Super. 295. Sharpless' Est., 28 Dist. 746, 15 Del. 16, 20 Luz. 161. Act of March 24, 1921, P. L. 51. Kiefer v. Jones, 50 Pa. C. C. 269 (s. c. sub nom. Daniel V. Jones), 30 Dist. 633. Henry's Est., 30 Dist. 945, 69 P. L. J. 737, 35 York 122. Twining's Est, 37 Montg. 116. Howe's Est., 49 Pa. C. C. 261, 29 Dist. 436, 68 P. L. J. 301, 34 York 7. Henry's Est, 30 Dist 945, 69 P. L. J. 737, 35 York 122. Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. Henry's Est., 30 Dist. 945, 69 P. L. J. 737, 35 York 122. Kiefer v. Jones, 50 Pa. C. C. 269 (s. c. sub nom. Daniel V. Jones), 30 Dist. 633. 1917, P. L. 447. 25. 58 P. L. J. 78. 15 Del. 224. Section Section of act. herein. 8(d) 38s 10 391 692 CITATION OF CASES Citation. Henry's Est., 30 Dist. 945, 69 P. L. J. 737. 35 York 122. Cooper's Est., 29 Dist. 230, 67 P. L,. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. Cotter's Est., 47 Pa. C. C. 76, 27 Dist. 1023, 67 P. L. J. I9- iHayden's Est., 28 Dist. 39. J I (a) 392 Brown's Est., i Wash. 149. 12 403 Becker's Est., 33 York 139. Curtis V. Yost, 2 Erie 6. Desmond's Est., 28 Dist. 231, 36 Lane. 217, 8 Leh. 255. Hildebrand's Est., 262 Pa. 112, 104 Atl. 866, aif'd 3S Lane. 73, 66 P. L. J. 176, 31 York 184. Hornberger's Est., 30 Dist. 907, 13 Berks 183. Huber's Est., 27 Dist. 25. Post's Est, 27 Dist. 748, 66 P. L. J. 761, 19 Lack, (a, 35 Lane. 226, 36 Lane. 8, 8 Leh. 115, 33 York 11. Wenger's Est., 27 Dist. 949, 35 Lane. 196. Zerbe's Est., 13 Berks 277. 13 (a) 41S Cochran's Est., 28 Dist. 654. Miller's Est., 264 Pa. 310, 107 Atl. 614. Smith's Est., 49 Pa. C. C. 453, 29 Dist. 917. Tsehopp's Est., 27 Dist. 103, aflf'd in 71 Super. 434. 14 417 Bowman's Est., 47 Pa. C. C. 405, 28 Dist. 766, 67 P. L. J. 321, 36 Lane. 121, 33 York 2. CuUen's Est., 16 Sch. 278. Kearney's Est., 30 Dist. 75. Miller's Est., 264 Pa. 310, 107 Atl. 684. Reel's Est., 65 P. L. J. 689, afFd in 263 Pa. 248, 106 Atl. 227. 15 (a) 418 Act of June 7, 1919, P. L. 412- Cassady's Est., 28 Dist. 37, 32 York 155. Gibb's; Est, 30 Dist. 128, 34 York 29. Hoeh's Est., 48 Pa. C. C. 149, 28 Dist. 416, 68 P. L. J. 207, 37 Lane. 98. Kearney's Est., 30* Dist 75. Kirk V. VanHorn, 265 Pa. 549, 109 Atl. 522. Myers v. Lohr, 66 P. L. J. 665, 19 Lack. 287, 81 Leh. 119, aff'd in 72 Super. 472. Olson's Est, 65 P. L. J. 57i, 34 Lane. 397. Scherrer's Est., 7 West. 109. Smith's Est., 29 Dist. 917, 49 Pa. C. C. 453- (b) 419 Act of May 2, 1919, P. L. 104. Kearney's Est., 30 Dist. 75. (c) 420 Cassady's Est., 28 Dist 37, 32 York 155. Gibbs' Est., 30 Dist. 128, 34 York 29. Olson's Est., 6s P. L. J. S7i, 34 Lane. 397. Myers v. Lohr, 66 P. L. J. 665, 19 Lack. 287, 8 Leh. 119, aff'd in 72 Super. 472. Scherrer's Est., 7 West. 109. Section Sect of act. hen iS(d) 421 (J) 427 i6 430 (c) 434 (f) 437 (g) 438 (m) 452 i8(a) 459 (b) 460 (c) 461 21 467 CITATION OF CASES 693 Citation. Myers v. Lohr, 66 P. L. J. 665, 19 Lack. 287, 8 Leh. 119, aff d in 72 Super. 472. Catafesta's Est., 28 Dist. 304. Young's Est., No. i, 28 Dist. 814, 67 P. L. J. 315- Spinelli v. Costello, 30 Dist. 411. Randall's Est., 269 Pa. 530, 112 Atl. 780. Bowman's Est., 47 Pa. C. C. 405, 67 P. L. J. 321. 28 Dist. 766, 36 Lane. 121, 33 York 2. Mauch's Est., 47 Pa. C. C. 490, 67 P. L. J. 308, 16 North. 405, 33 York 45- Wykoff V. Manzer, 22 Lack. 308. Wykoff V. Manzer, 22 Lack. 308. Wykoff V. Manzer, 22 Lack. 308. Greaves' Est., 29 Dist. 577. Sterrett's Est., 29 Dist. 147. Wagner's Est., 30 Dist. 435, 13 Berks 6. 23 469 Conner's Est., 29 Dist. 636. Dale's Est., 29) Dist. 265. Loewer's Est, 263 Pa. 517, 106 Atl. 789, rev'g 27 Dist. 753. Ranck's Est., 27 Dist. 792, 35 Lane. 205. 24 470 Poe's Est., 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L. J. 635, 15 Del. 381. Johnston's Est., 264 Pa. 71, 107 Atl. 335. Channon's Est., 47 Pa. C. C. 637, 28 Dist. 479, aff'd in 266 Pa. 417, 109 Atl. 756. Cullen's Est., 16 Sch. 278. Harbold's Est., 34 York 149. Poe's Est., 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L. J. 635, 15 Del. 381. Poe's Est., 47 Pa. C. C. 590, 29 Dist. 857, 68 P. L. J. 63S. 15 Del. 381. Barnwell's Est., 49 Pa. C. C. 188, 29 Dist. 317, aff'd in 269 Pa. 443. Eisenbise's Extr. v. Lebo, 13 Berks 308. Kolb V. O'Hay, 28I Dist. 194, 16 North. 289. Fans' Est., 50 Pa. C. C. 342. Davidson v. Bright, 267 Pa. 580, 110 Atl. 301. Archambault's Est., 29 Dist. 77. Bennett's Est., 67 P. L. J. 363, 20 Lack. 142. Ruch's Est., 37 Lane. 69. Act of March 30, 1921, P. L. 55. Harris v. Blatt, 28 Dist. 11, 66 P. L. J. 646, 35 Lane. 361, 8 Leh. 80, 32 York loi. Young's Est., 30 Dist. 182. In re Trust Funds, 68 P. L. J. 608 (s. c. sub. nom. Hotel Mortgage), 50 Pa. C. C. 82. Legal Investments, 69 P. L. J. 777. 25 26(a) 471 474 27(b) (c) I 483 487 (d) 488 28(a) 491 (c) 493 30 496 31 497 32(a) 498 33(f) S06 35a-g 512-8 37 524 38 525 41(a) I 528 694 CITATION OF CASES Section Section of act. herein. Citation. 41 (a)2 529 Legal Investments, 69 P. L. J. "JIT. (b) S31 Act of/ May 2, 1919, P. L. 114. 45 538 Merchant's Est., 30 Dist. 92. 46 (a) 539 Amodei's Est., 27 Dist. 373. Cooper's Est., 29 Dist. 320, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 145. Hayden's Est., 28 Dist. 39. Laverty's Est., 50 Pa. C. C. 259, 30 Dist. 507, 24 Dauph. 107. (c) S41 Morthland's Est., 32 York 137. (d) 542 Hayden's Est., 28 Dist. 39. (g) 545 Engle v. Engle, 21 Luz. 277. * . Girard's Est., 48 Pa. C. C. 608, 29 Dist. 62. Noble's Est., 27 Dist. 336, 66 P. L. J. 414, 35 Lane. 369, 19 Lack. 341. (h) 546 Noble's Est., 27 Dist. 336, 66 P. L. J. 414, 35 Lane. 369, 19 Lack. 341. 47 (a) 548 Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. 48 SSI Beard's Est., 34 York 190. Bender's Est., 33 York 125. Graham's Est., 48 Pa. C. C. 371, 28 Dist. 1023. Riser's Est., 3S Montg. 169. Troutman's Est., 270 Pa. 310. 49 (») 552 Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. Laverty's Est., 50 Pa. C. C. 259, 30 Dist. S07, 24 Dauphin 107. (b) 553 •Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. Cotter's Est., 47 Pa. C. C. 76, 27 Dist. 1023, 67 P. L. J. 19. (d) 555 Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 144. Feigley's Est., 35 York 17. (e) 1 556 Evans' Est, 50 Pa. C. C. 241, 30 Dist. 253. Shaw's Est., 6s P. L. J. 830. Skeer's Est, 49 Pa. C. C. 535, 30 Dist 542, 17 North. 302. (f) ss8 Act of March 26, 1919, P. L. 22. 53 (a) 565 Buch's Est., 3S Lane. 41. Kelly's Est., 28 Dist. 87. Miller's Est., 264 Pa. 310, 107 Atl. 684. I 566 Buch's Est., 35 Lane. 41. Kelly's Est., 28 Dist. 87. Miller's Est., 264 Pa. 310, 107 Atl. 684. 4 569 Kelly's Est., 28 Dist. 87. 5 S70 Cook's Est., 48 Pa. C. C. S99, 29 Dist. 909. 6 S7I Kelly's Est., 28 Dist. 87. 8 573 Kelly's Est., 28 Dist. 87. Miller's Est., 264 Pa. 310, 107 Atl. 684. Section Section of act. herein. 54 (a) 579 S6(a) 584 (b) 585 (d) S87 58(a) 590 (b) 591 (c) 592 (d) 593 (f) 595 CITATION OF CASES 695 Citation. Buch's Est., 35 Lane. 41. Barnwell's Est., 49 Pa. C. C. 188, 29 Dist. 317, aff'd in 269 Pa. 443. Kershaw's Est., 27 Dist. 659. Lewis' Est., 30 Dist. 391. Jones' Est., 47 Pa. C. C. 463, 28 Dist 282. Jones' Est., 47 Pa. C. C. 463, 28 Dist. 283. Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282. Jones' Est., 47 Pa. C. C. 463, 28 Dist. 382. Foreign Intestates' Est., 68 P. L. J. i. Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282. Moss' Est., 29 Dist. 235. (g) I 59? Foreign Intestates' Est., 68 P. L. J. i. Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282. 2 597 Foreign Intestates' Est., 68 P. L. J. i. Jones' Est., 47 Pa. C. C. 463, 28 Dist 283. (h) 598 Foreign Intestates' Est, 68 P. L. J. i. Dixon's Est., 30 Dist. 463. 59 (a) 599 Crampton's Est, 46 Pa. C. C. 273, 26 Dist. 1060, 35 Lane. 246. Dolan V. Pitts. Coal Co., 27 Dist. 877, 66 P. L. J. 241. Jacoby's Est., 47 Pa. C. C. 183, 28 Dist, 7. (b) 600 Butcher's Est., 35 Montg. 162, aff'd in 266 Pa. 479, 109, Atl. 683. Spencer's Est, idl Berks 171. (d) 602 Dailey's Est, 27 Dist 464, 65 P. L. J. 796, 31 York 132. Storer's Est, 28 Dist 215. (g) 60s Cook's Est, 48 Pa. C. C. 599, 29 Dist 909. Kerr's Petition, 29 Dist. 909, 48 Pa. C. C. 599. (j) 608 Cook's Est, 48 Pa. C. C. 599, 29 Dist. 909. Kerr's Petition, 29 Dist. 909, 48 Pa. C. C. 599. 8 615 Cook's Est, 48 Pa. C. C. 599, 29 Dist. 909. Devere's Est, 13 Berks 242. Kerr's Petition, 29 Dist. 909, 48 Pa. C. C. 599. (k) 616 Boyd's Est., 270 Pa. 50. Act of July II, 1917, P. L. 790. 1 623 Girard's Est., 48 Pa. C. C. 608, 29 Dist 62. 2 624 Girard's Est., 29 Dist. 62, 48 Pa. C. C. 608. TABLE OF CASES Alexander's Est., 28 Dist. 993, 33 York i 281-4 Amodei's Est, 27 Dist. 373 S39 Annear's Est., 29 Dist. 44 227 Archambault's Est., 29 Dist. 77 497 Barnwell's Est., 49 Pa. C. C. 188, 29 Dist. 221 49i. S84 Battersbys Est., 29 Dist. 221 23, 29 Beard's Est., 34 York 190 S5i Becker's Est., 33 York 139 403-4-5 Behringer's Est., 265 Pa. in, 108 Atl. 414 168, 176, 179, 181 Bender's Est, 33 York 125 • SSi Bennett's Est., 67 P. L. J. 363, 20 Lack. 142 498 Bleakley's Est., 28 Dist. 290, 37 Lane. 29, 15 Del. 199 IS3-4 Blessing's Est., 29 Dist. 3, 68 P. L. J. 78, 15 Del. 224, aflfirmed in 267 Pa. 380 355 Bowman's Est., 47 Pa. C. C. 405, 28 Dist 766, 67 P. L. J. 321, 36 Lane. 121, 33 York 2 417, 438 Boyd's Est, 50 Pa. C. C. 163, 10 West. 47, affirmed in 270 Pa. 504 224-5, 236-7, 243, 616 Boyko's Est., 49 Pa. C. C. 49S, 21 Lack. 161 357 Brady's Est., 29 Dist. 24 296 Brodie's Est., 30 Dist. 654 322-3-4, 343 Brown's Est., i Wash. 149 392 Buch's Est., 35 Lane. 41 565-6, 568, 579 Burtop's Est, 66 P. L. J.| 765 264, 276, 285 Butcher's Est., 35 Montg. 162, affirmed in 266 P». 479, 109 Atl. 683 600 Byerly's Est., 258 Pa. 410, 102 Atl. 143 159 Caldwell V. Caldwell, 70 Super. 332 294 Canavan's Est. 69, P. L. J. 84 307 Carrell's Est., 264 Pa. 140 296 Cassady's Est., 28 Dist. 37, 32 York 155 418, 430 Catafesta's Est., 28 Dist. 304 437 Channon's Est., 28 Dist. 479, aff'd in 266 Pa. 417, 109 Atl. 756 222, 474 Cochran's Est., 28 Dist. 654 415 Collom's Est., 49 Pa. C. C. 434, 28 Dist. 503 245, 296 Commonwealth v. Gross, 35 York 93 334 Commonwealth v. Rife, 50 Pa. C. C. 22 295 Conner's Est., 29 Dist. 636 469 Cook's Est., 47 Pa. C. C. 84, 27 Dist. 1006 262-3, 285 Cook's Est., 48 Pa. C. 599 (s. c. sub nom. Kerr's Petition), 29 Dist 909 570, 605, 608, 615 Cooper's Est., 29 Dist. 230, 67 P. L. J. 17, 20 Lack. 46, 36 Lane. 266, 32 York 145 382, 391, 548, 552-3. 555 Cotter's Est, 47 Pa. C. C. 76, 27 Dist. 1023, 67 P. L. J. 19. ■ . . 39i, 553 696 TABLE OF CASES 697 Crampton's Est., 46 Pa. C. C. 273, 26 Dist. 1060, 35 Lane. 246 599 Cross' Est, I Erie 83 280 Cullen's Est., 16 Sch. 278 417. 474 Curtis V. Yost, 2 Erie 6 403 Dailey's Est., 27 Dist. 484, 65 P. L. J. 796, 31 York 132 602 Dale's Est, 29 Dist. 265 469 Daniel v. Jones, 30 Dist. 633, 30 Pa. C. C. 269 36a, 383 Davidson v. Bright, 267 Pa. 580, no Atl. 301 496 Desmond's Est., 28 Dist 231, 36 Lane. 217, 8 Leh. 255 296-7, 403 Devere's Est, 13 Berks 242 61S Di Battista's Est., 30 Dist. 988 152 Dixon's Est., 30 Dist. 463 588 Dodd's Est., I Wash. 236 21, 26, 39, 60, 24s, 296 Dolan V. Pittsburgh Coal Co., 27 Dist 877, 66 P. L. J. 241 ... 599 Duffy's Est, 49 Pa. C. C. 29, Dist. 379 229 Eby's Est. (No. 2), 30 Dist 338, 37 Lane. 329 222 Eisenbise's Extr. v. Lebo, 13 Berks 308 491 Engle V. Engle, 21 Luz. 277 545 English's Est, 270 Pa. i, 112 Atl. 913 232 Evans' Est., 50 Pa. C. C. 241, 30 Dist. 253 556 Faus' Est, So Pa. C. C. 342 493 Feigley's Est., 35 York 17 555 Fetherolf's Est. (No. 2), 29 Dist. 479, 12 Berks 62 234 Fleming's Est., 265 Pa. 399, 109 Atl. 265 267-8 Flower's Est., 30 Dist. 967 245-8 Fogelsanger's Est., 267 Pa. 321, no Atl. 172 32 Fonda's Est., 5 Northumb. 249 279 Foreign Intestates' Est., 68 P. L. J. i 349, 595-8 Fretz's Est., 28 Dist 64s 301 Frey's Est., 50 Pa. C. C. 468 176 Gamier v. Gamier, 16 North. 205 233-4-5, 252 Garrison's Est., 65 P. L. J. 778 168 Gibb's Est, 30 Dist 123, 34 York 29 418, 420 Gilpin v. Brown, 268 Pa. 398, 112 Atl. 124 2, 14 Girard's Est., 49 Pa. C. C. 608, 29 Dist. 62 545, 623, 624 Graham's Est., 48 Pa. C. C. 371, 28 Dist. 1023 551 Greaves' Est, 29 Dist. 577 238, 243, 467 Gregg's Est., 266 Pa. 189, 109 Atl. 177 23s Gruner's Est., 49 Pa. C. C. 642, 29 Dist. 1095 238 Haack's Est, 30 Dist. 669 248 Hagerman's Est., 47 Pa. C. C. 498, 28 Dist. 384 104 Hanshaw's Est., 22 Dauphin 178 357 Harbold's Est, 34 York 149 483 Harris v. Blatt, 28 Dist 11, 66 P. L. J. 648, 35 Lane. 361, 8 Leh. 80, 32 York loi 524 Hayden's Est., 28 Dist 39 107, 391, 539, 542 698 TABLE OF CASES Henninger's Est., 30 Dist. 4131 221 Henry's Est, 30 Dist. 945, 69 P. L. J. 737, 3S York 122 ■ 279, 364, 380, 382, 38s Herdle's Est., 29 Dist. 817 4 Hildebrand's Est., 262 Pa. 112, 104 Atl. 866, affirming 66 P. L- J. 176, 35 Lane. 73, 31 York 184 403 Hill's Est., 30 Dist. 477, 69 P. L. J. 177, 348 233, 237 Hilton's Est., I Wash. 125 297, 351, 352 Hiser's Est., 35 Montg. 169 SSi Hoch's Est., 48 Pa. C. C. 149, 28 Dist. 416, 68 P. L. J. 207 37 Lane. 98 418 Hodgson's Est, 270 Pa. 210, 112 Atl. 778 215 Hornberger's Est, 30 Dist 907, 13 Berks 183 403 Hotel Mortgage, 50 Pa. C. C. 82, 68 P. L. J. 608 528 Howe's Est., 49 Pa. C. C. 261, 29 Dist. 436, 68 P. L. J. 301, 34 York 7 373 Huber's Est., 27 Dist. 25 353, 403 Jacoby's Est., 47 Pa. C. C. 183 599 Jackson's Est., 28 Dist 943, 68 P. L. J. 613 33S Janney's Est., 27 Dist. 709 169 JefTeries' Est, 37 Lane. 435 168 Johnston's Est., 264 Pa. 71, 107 Atl. 335 471 Jones' Est., 47 Pa. C. C. 463, 28 Dist. 282 168, 590, 597 Kane's Est., 69 P. L. J- 820 235 Kearney's Est., 30 Dist. 75 417-8-9 Kelly's Est., 28 Dist 87 565-6-9, 57i, 573 Kerr's Petition, 29 Dist. gog (s. c. sub nom. Cook's Est), 48 Pa. C. C, 599 570, 60s, 608, 615 Kershaw's Est., 27 Dist. 659 585 Kiefer v. Jones, 50 Pa. C. C. 269, 30' Dist. 633 362, 383 Kirk V. Van Horn, 265 Pa. 549, 109 Atl. 522 418 Klagholz's Est., 27 Dist 95 159 Klase's Est., 18 North. 46 4S Klutnp's Est., so Pla. C. C. 99, 29 Dist. 1004 4 Kolb V. O'Hay, 28I Dist. 194, 16 North. 289 491 Kris' Est, 30 Dist 166 215 Langerwisch's Est, 47 Pa. C. C. 121, 28 Dist. 470, 8 Leh. 147, affi.irmed in 267 Pa. 319, no, Atl. 165 245, 296 Laverty's Est, so Pa- C. C. 259, 30 Dist. S07, 24 Dauphin 107 539, 552 Lawton's Est., 266 Pa. SS8, 106 Atl. 699 307 Legal Investments, 69 P. L. J. ^^^ 528-9 Lehman's Est, 8 Leh. 31S, 33 York 113 246 Loewer's Est., 263 Pa. 517, 106 Atl. 789, reversing 27 Dist 753 469 Manzke's Est., 13 Berks 152 316 Mauch's Est, 47 Pa. C. C. 490, 67 P. L. J. 308, 16 North. 405, 33 York 45 206, 452 Maule's Est., 37 Lane. 231 168 TABLE OF CASES 699 Maurer v. Straub, 16 Sch. 174 3^ McDonald's Est, 268 Pa. 486, 112 Atl. 98 reversing 49 Pa. C. C. 423, 1 Wash. 10 396 McLain's Est., i Wash. 220 224-5 McNulty's Est., 29 Dist. 709 232, 235, 296 Miles' Est., S. C. Oct. 1921, Nos. 61-2 292, 322-4, 343 Miller's Est, 264 Pa. 310, 107 Atl. 684 415, 417, 565-6, 573 Miller V. Brown, 49 Pa. C. C. 332 332 Moore's Est, 30 Dist. 152, 68 P. L. J. 670, 15 Del. 367. .233, 234, 236-7, 338-9 Morthland's Est., 32 York 137 539, 541 Moss' Est. 29 Dist. 23s 595 Mulgrew's Est., 69 P. L. J. 169 238 Mulligan's Est., 47 Pa. C. C. 546, 28 Dist. 309 252 Myers v. Crick, 271 Pa. 399 176, 181, 188 Myers v. Lohr, 66 P. L. J. 65, 19 Lack. 287, 8 Leh. 119, affirmed in 72 Super. 472 418, 420-1 Noble's Est., 27 Dist. 331, 66 P. L. J. 414, 35 Lane. 369 545-6-7 Nolan's Est., 68 P. L. J. S88, 2 Erie iii, 21 Lack. 239, 9 Leh. 57 296 Olson's Est, 65 P. L. J. S7i, 34 Lane. 397 418-20 Owen's Est, 28 Dist 667 loi Patterson v. Reed, 260 Pa. 321, 103 Atl. 735 177 Perry's Est., 67 P. L. J. 216 215-6, 253 Pfanenschmidt's Est., 35 Montg. 135 243, 296 Phillips' Est, 271 Pa. 129 306 Poe's Est., 47 Pa. C. Cv 590, 29 Dist. 857, 68 P. L. J. 635, 15 Del. 381 470, 487-8 Post's Est., 27 Dist. 748, 66 P. L. J. 761, 35 Lane. 226, 36 Lane. 8, 8 Leh. IIS, 33 York 11, 19 Lack. 62 307,403 Randall's Est., 269 Pa. 530, 1 12 Atl. 780 437 Ranch's Est., 27 Dist. 792, 35 Lane. 205 469 Reel's Est., 65 P. L. J. 68g, affirmed in 263 Pa. 248, 106 Atl. 227 417 Rosenfeld v. Wahal, 48 Pa. C. C. 362 230 Ruch's Est., 37 Lane. 69 506 Saint Joseph's L. R. C. Church, 49 Pa. C. C. 3x5, 16 Sch. 327 168, 176, 192 Scherrer's Est., 7 West. 109 418, 420 Schreckengost's Est., T] Super. 235 245, 307 Scott's Est., 49 Pa. C. C. 295 174 Segelbaum's Est., 24 Dauphin 274 233 Seidman's Est., 20 Lack. 176 115-6 Seiter's Est., 265 Pa. 202 241-2 Sharpless' Est., 28 Dist. 746, 15 Del. 16, 20 Luz. 161 264, 357-8 Shaw's Est, 65 P. L. J. 830 556 Shestack's Est, 267 Pa. 115, no Atl. 166 243, 296 Shoch's Est, 29 Dist. 1163, aff'd in 271 Pa. 158 243 Shontz's Est, 71 Super. 295 357 Skeer's Est, 49 Pa. C. C, 535, 30 Dist 542, 17 North. 302 556 7O0 TABLE OF CASES Smith's Est., 49 Pa. C. C. 453, 29 Dist. 917 415, 418 Spark's Est, 30 Dist. 815 229 Spencer's Est., 10 Berks 171 600 Spinelli v. Costello, 30 Dist. 41 1 434 Stapler v. Atkinson, 27 Dist. 995 102 Sterrett's Est, 28 Dist 147 467 Stock's Est., 49 Pa. C. C. 203, 29 Dist. 376 234 Stockdale's Est., 29 Dist. 1013 2, 304 Storer's Est., 28 Dist. 215 113, 602 Troutman's Est, 270 Pa. 310 551 Trouttnan's Est., 30 Dist. 708 296, 297, 299 Trust Funds, in re 68 P. L. J. 608, 50 Pa. C. C. 82 528 Tschopp's Est., 27 Dist. 103, aff'd in 71 Super. 434 415 Twining's Est, 37 Montg. 116 366 Wagenhorst's Est., 12 Berks 89 233 Wagner's Est, 30 Dist 435, 13 Berks 6 467 Wand's Est, 50 Pa. C. C. 516 160, 179 Wandall's Est, 29 Dist. 1 132 296 Weber's Est, 12 Berks 12, affirmed in 268 Pa. 7, no Atl. 785 215 Wehry's Est., 47 Pa. C. C. 486, 15 Sch. 262, 33 York 68 264 Wenger's Est., 27 Dist. 949, 35 Lane. 196 403 Wliitaker's Est, 30 Dist. 814, 35 York 99 34 Wightraan's Est, 49 Pa. C. C. 614, 30 Dist 885, 68 P. L. J. 833 321-2-3, 342-3 Wilson V. Cook, 49 Pa. C. C. 16 215 Winsor's Est., 47 Pa. C. C. los, 27 Dist loio, 32 York 131, affirmed in 264 Pa. 552, 107 Atl. 888 263, 265 Wyant's Est., 33 York 208 104 Wykoff V. Manzer, 22 Lack. 308 loi, 459-61 Young's Est., I Wash. 250 245, 346, 252 Young's Est., 30 Dist 182 525 Young^s Est. (No. i), 28 Dist. 814, 67 P. L. J. 31S 430 Zerbe's Est., 13 Berks 277 403 INDEX (References are to Sections.) A Abatement and survival of actions 512-22 of actions by failure to take out letters 522 by or against fiduciaries 520 legacies 466 sequestration 135 Absconding party, attachment of 137 Absent person, title in, relief under Revised Price Act 176 spouse, title in, relief under Revised Price Act 176 Abuse of trust, as ground for removal of trustee 572 Accounting to surety by fiduciary, of investments 583 Accounts, copies of, duty of Register of Wills to furnish 274 of estate set apart from residue to pay annuity or legacy 478 of executors, administrators and trustees 539-47 and administrators, jurisdiction of the Orphans' Court in 104 etc., of sale in partition 44 guardians 608-15 final 615 trustees S4S-7 durante absentia 618 refusal to render as ground for removal of fiduciary .... 566 review of 551 Accrued payments, bequests of 223 Acknowledgment and recording election of guardian or trustee 498 of bond of Register of Wills 257 of deeds, etc., under Revised Price Act 195 of deeds or mortgages given on application for sale or mortgage of real estate to pay debts 440 election to take under or against will 246 Actions, abatement and survival of 512-22 abatement of by and against fiduciaries 520 against non-resident fiduciaries 524 between fiduciaries 525 by and against executors and administrators 513 on. refunding bonds, limitation of 560 to enforce lien of decedent's debts 418-21 Acts of executor or administrator, effect on, of later will.... 365 short title of Fiduciaries Act 622 Intestate Act 350 Orphans' Court Act 165 Orphans' Court Partition Act 64 Register of Wills Act 290 701 702 INDEX . Revised Price Act 311 Wills Act 251 Adjoining owners, squaring and adjusting lines of, under Re- vised Price Act 171 Adjudication, review of 551 Administration, granting of letters of 35S-64 jurisdiction of the Orphans' Court in 96 Administrators, accounts of 539-47 actions by and against 513 acts of, not impeached by discovery of will 365 application of, for sale or mortgage of real estate to pay debts 432 to stay execution 428-9 as grantee in deed under contract of decedent for sale of real estate 464 bond of 382-7 compensation on partition 46 c. t. a., bond of 383 powers and duties of 362 to sell real estate 494 d. b. n., powers of 363 durante minoritate, durante absentia and pendente lite, powers of 364 effect of removal, etc., on sale in partition 4a foreign S90-8 awards to ■ S9S liability of, for interest 536-7 not to be appointed guardian 601 oaths of 380-1 of deceased fiduciary, bond of 386 estate of presumed decedent 372 judgment creditor, revival of judgment against 536 pleading by, effect of 521 removal of, effect of, on sale under Revised Price Act . . 196-201 sale in partition by 44 substitution of 512-22 Adopted children included in legacies or devises 236-7 rights of, under Intestate Act 338-9 rights of, under wills 236-7 rights of, when adopted subsequent to date of will 243 Advancements as affecting rights under Intestate Act 346 Advertisement in the Orphans' Court no of accounts by Register of Wills 542 allowance of $5,000, etc., under Intestate Act 298 application for sale or mortgage of real estate to pay debts 438 granting of letters 391 notice of decree of presumption of death 369 private sale to pay debts 451 INDEX 703 petition for ancillary letters on estate of presumed decedent 367 for letters on estate of presumed decedent "366 to discharge real estate from lien of legacies, etc 481 private sales in partition 48 proceedings under Revised Price Act 183 public sales under Revised Price Act 193 sale in partition 30 widow's or children's exemption 406 Affidavit required of foreign fiduciary to transfer securities . . 592 After-acquired real estate to pass by general devise 228 discovered property, inventory of 399 Alias anct pluries citations in Orphans' Court 123 Alleyj, laying out, etc., under Revised Price Act 174 Allotment! in partition, method of 17-20 to widow in partition 21 Allowance for support and education of minor 607 to surviving spouse where no children but collaterals under Intestate Act 296-303 Amercements, process to recover in Orphans' Court 146 Ancillary letters, granting of 3S5 on estate of presumed decedent 367 Annuities payable in future, discharge of residuary estate from 474-80 Appeal from decree of confirmation of appraisement of real estate devised at a valuation 504 from decree of Orphans' Court on petition of surviving spouse under Intestate Act where no heirs 341 from decree on audit of guardian's account 614 from decree on petition for reduction of fund set apart out of residue for annuity or legacy 479 from decree on petition to discharge residue from legacy or annuity payable in future 477 from judgment in Orphans' Court, effect on transcript in Common Pleas 148 from order or decree on petition to discharge real estate from lien of legacy, etc 490 frorrv Orphans' Court 74 by fiduciary, effect of 561 right of and effect of 163 ■from proceedings under Revised Price Act 210 from refusal of issue from Orphans' Court to Common Pleas on distribution of proceeds of sale 161 from Register of Wlills, bond on 282 costsi on 283 effect of 286 jurisdiction of Orphans' Court in 105 on matters of probate 276-7 testimony on 157-8 in partition proceedings 63 to Orphans' Court from Register of Wills 284-6 704 INDEX Appearance in Orphans' Court, proceedings on default in procedure to compel Application of provisions as to Register of Will's bond of purchase money in partition , obligation of purchaser from executor to see to obligation to see to in sales under Revised Price Act or mortgage money under Revised Price Act to Orphans' Court for sale or mortgage of real estate to pay debts Appointment, defective, relief under Revised Price Act of appraisers for widow's or children's exemption of real estate devised at a valuation auditors to ascertain liens, etc., in partition commissioners in partition to designate curtilage of building devised Deputy Register of Wills fiduciary, effect of irregularity in on sale under Re- vised Price Act guardian by Orphans' Court in proceedings under Revised Price Act master for sale or mortgage under Revised Price Act on application for sale or mortgage of real estate to pay debts on petition for discharge of residuary estate from annuities or legacies payable in future . . non-resident fiduciary testamentary guardian by father by mother trustee durante absentia for life tenant for parties unknown, in partition for parties not in esse, in partition to fill vacancy to make sale in partition under Revised Price Act power of, effect of general devise or bequest on Apportionment of income Appraisement and inventory of allowance of $5,000 under Intestate Act goods, etc., of decedent widow or children's exemption recording, etc., right to take real estate at Appraisers appointment and duties where real estate claimed as allow- ance of $5,000, etc., under Intestate Act is in another county of allowance of $S,ooo, etc., under Intestate Act, duties and fees 125 "5-25 259 38 496 209 189 432-3 180 400 403 502 43 8 S09 261 201 599 183 191 436 475 588 224 225 617 469 25 60 584-7 34 i8s 229 468 392-402 297 400 403 273 501 400-2 302 297 INDEX 705 of real estate devised at a valuation S02-S of widow's or children's exemption 403, 405-6 Approval of bond of Register of Wills 256 Arrearages of rent-charge to be included in inventory 397 Assets, examination of 540 of decedent included in inventory and appraisement 394-9 pleadings as to 512-22 rents as, for payment of decedent's debts 417 Association, religious, beneficial or charitable, title in, relief under Revised Price Act 176 Attachment execution in Orphans' Court 130 for contempt in Orphans' Court, discharge from 139 in Orphans' Court, dissolution of 138 of absconding party in Orphans' Court 137 the person in Orphans' Court 127, 132, 137-9 witnesses to wills 268 to compel entry of security by fiduciary 579 enforce order on executors or administrators to apply for stay of execution 429 production of will 267 Attestation of process in Orphans' Court in Attorney, power of fiduciary to convey by 495 Audit 548-50 of accounts, distribution without 553 guardian's accounts 612 Auditor, appointment of, in partition, to ascertain liens, etc., 43 for accounts 549-5° reference to, of appeal from Orphans' Court 164 reports of, review of 551 to apply proceeds of sale, etc., under Revised Price Act . . 190 ascertain amount due in partition 57 Authentication of copies of wills 592 Authority of fiduciary to sell securities distributed to him in kind 557 Award of distribution protects executor or administrator 553 inquest in partition 8 to foreign executor or administrator 595 trustee 598 B Balances due by fiduciary, transcript of 561-2 Beneficial associations, title in, relief under Revised Price Act 176 Bequests, see also Legacies. for religious or charitable uses 222 general, operation of 229 importing failure of issue, construction of 232 of emblements, crops, rents, etc 223 personalty revocation of 242 over $100 under nuncupative will 219 to corporation, notice of 465 45 7o6 INDEX Bids above valuation in partition l6 Bill of costs in Orphans' Court 91 Register of Wills 287 Birth of children as revoking wills pro tanto 243 Blood of first purchaser, rule as to, abrogated 332 Bond and mortgage of decedent- 425 copies of, duty of Register of Wills to furnish 274 effect of granting letters without 385 exceptions to 387 in partition proceedings 35 for caveat 281-2 of administrator c. t. a 383 executors and administrators 382-7 for distribution of proceeds of sheriffs' sales against decedent 427 of deceased fiduciary 386 of fiduciaries 388-90 in sales for distribution 32 foreign fiduciary on removal of property 596 guardians 605 legatees under legacies charged on land 473 non-resident fiduciary 588 Register of Wills 256-60 acknowledgment, filing and recording of 257 form and approval of 256 trustee durante absentia 618 for life interest in partition 41 unknown parties in partition 25 on appeal from the Register of Wills 282 required on application for sale or mortgage of real estate to pay debts 437 decree of presumption of death 371 lease of real estate by testamentary trustees or guardians 497 petition to release real estate from lien, of debts .... 458 foreclosure of mortgage under Revised Price Act . . . 188 under Revised Price Act 192 refunding 559-6o on distribution of estate of presumed decedent 373 Bonds to be included in inventory and appraisement 394 transfer of by foreign fiduciary 592 Books and papers, production of, in, Orphans' Court 155 Brothers and sisters as heirs of illegitimates under Intestate Act 335 legacies and devises to, not to lapse when 274 rights of, under Intestate Act 318-21 Building devised, designation of curtilage S06-11 INDEX 707 C Caveats 281-4 Certification to Orphans' Court of proceedings on issue d. v. n. 279-80 Certified copies of bonds, etc., duty of Register of Wills to furnish 274 decrees of allowance of $5,000, etc., under Intestate Act, to be recorded, etc 303 wills 270 probated in other counties, filing of 275 Cestuis que trust, majority of, right to removal of trustee . . . 574 Charge, discharge of real estate from lien of 481-90 Charitable and religious uses, bequests for 222 associations, title in, relief under Revised Price Act 176 Child and surviving spouse, rights of under Intestate Act .... 294 Children, adopted, rights of, under Intestate Act 331-9 adopted, rights of under will 236-7 adopted, rights of against will 243 and surviving spouse, rights of under Intestate Act 295 birth or adoption of, as revoking wills pro tanto 243 devises and legacies to 236-7 exemption 403-14 illegitimate, inheritance of, under Intestate Act 334-7 legitimate and illegitimate, inheritance as between under Intestate Act 335 minor, exemption to 407-8 maintenance of, from spendthrift trust 240 of deceased grandparents, rights of, under Intestate Act 325, 329 of nephews and nieces, rights of, under Intestate Act 320 posthumous, rights between, under Intestate Act 344 Choice of guardian by minors 599-601 Citation by Register of Wills to parties in interest in estate of presumed decedent 377 for appeal from Register of Wills 285 inquest in partition S in the Orphans' Court 116-23 alias and pluries 122 decree on default 124 service of 117-20, 124 place of 119 proof of 124 return of 121 of executors and administrators to account 539 on petition for discharge of residuary estate from annui- ties' or legacies payable in future 475 removal of fiduciary 575 to discharge real estate where charge paid 485 to elect to take under or against will 248 file inventory and appraisement 393 heirs on petition of surviving spouse under Intestate Act where no known heirs 341 7o8 INDEX to produce will 267 to refuse or accept real estate at an appraisement 505 under Revised Price Act 183 Claimants, notice of filingl accounts to 541 Claims against estate, compromise of 527 not presented at audit barred SSS under Intestate Act, limitation of 345 Clerk of Orphans' Court and assistants 87-91 to execute deeds, etc., in sale or mortgage to fiduciary under Revised Price Act 202 to execute deeds under Revised Price Act on re- moval of fiduciary 196-201 Coal and timber lands, partition of, jurisdiction of Orphans' Court 3 Coal mining lease, fiduciaries' power as to 623-4 Codicil, effect of, on will 241 Co-fiduciaries, actions between 525 power of survivor, on removal, etc., of one, in sale under Revised Price Act 197 Collateral heirs, rights of under Intestate Act 317-21 inheritances not affected by power in foreign fiduciary to sell real estate S93 Collection of rents of decedent for payment of debts 417 Commission collectible when same person, executor or trustee 538 to take depositions of witnesses to wills 269 to take testimony 153 Commissioners in partition, appointment of 8 compensation of 9 where land in different counties 53 making of partition by 10-13 to designate curtilage of building devised 508 Common Pleas, filing of transcript in, from Orphans' Court 148 filing writ of sequestration in, from Orphans' Court 136 form of precept to 160 issue to on proceeds of sale 161-2 judge sitting in Orphans' Court 77-8o jurisdiction of, over trusts, not impaired 574 jurisdiction of under Revised Price Act 168-184 Orphans' Court judge sitting in 81-4 precept to on issue of devisavit vel non 278 transcript to, of balance due by fiduciary 561 Commonwealth, fee for, on issue of letters 289 tax for, collection of, by Register of Wills 287 Compensation of appraisers 402 of real estate devised at a valuation 503 widow's or children's exemption 405 commissioners or jurors in partition 9 to designate curtilage of building devised S09 Common Pleas judge sitting in Orphans' Court 80 examiners 540 INDEX 709 executors, etc., on partition 46 judge specially called in Orphans' Court 76 Orphans' Court judge sitting in Common Pleas 84 where executors are also trustees 538 Compromise of actions by fiduciaries 5^7 Confirmation of accounts dependent on notice 544 appraisement of widow's or children's exemption 406 decree of presumption of death 37° guardians' accounts 612 report of commissioners to designate curtilage of building devised 51° sale to pay debts 453 under Revised Price Act 207 Consolidation of mining lands under Revised Price Act 172 Construction of "die without issue", etc 232 wills as to time they take effect 227 Contempt, attachment for, in Orphans' Court, discharge from 139 Continuance where executor or administrator substituted as party 518 Contracts of decedent for sale or purchase of real estate . . . 459-64 to sell real estate, jurisdiction of Orphans' Court in loi Control of Orphans' Court over sale of real estate by executor 493 Conveyance by owner of undivided interest under Revised Price Act 173 of real estate on decree of presumption of death 371 by executors 492 or mortgage for payment of debts where fiduciary is pur- chaser or mortgagee 447 Copy, certified, of decree of allowance of $S,ooo, etc., under Intestate Act to be recorded, etc 303 of bond, etc., duty of Register of Wills to furnish 274 of Register of Wills as evidence 258 of inventory and appraisement as evidence 273 of willSj certified 270 probate of 266 probated in other county, filing of 275 Corporate bond of fiduciary, expense of 390 Corporation, bond of under Revised Price Act 192 devise or bequest to, notice of 465 fiduciary, oath of officer 381 of other states as fiduciaries 588 organization of, to carry on decedent's business 532-4 stock of, voting of, by fiduciary 535 testamentary trustee or guardian, bond required on lease of real estate 497 unable to convey, title in, relief under Revised Price Act 176 Cost of recording decree of widow's or children's exemption 414 Costs attendant to granting or revoking letters on estate of presumed decedent 379 bill of, in Orphans' Court 91 7IO INDEX Register of Wills 287 collection of by Register of Wills 288 oj audit of guardian's account 613 proceedings to designate curtilage of building devised 511 discharge real estate from lien of legacies, etc 489 proceedings to reduce bond of fiduciary 389 on caveat or appeal from Register of Wills 283 partition 4S-6 petition to reopen decree I44 proceedings to enforce contract of decedent for sale or purchase of real estate 462 oral depositions outside of state IS4 Co-trustee, resident, of non-resident fiduciary 589 Counsel fee on partition 45 Counter security, requirement of 581 Counties, real estate in different, claimed as allowance under Intestate Act, proceedings to set aside 302 real estate in different, jurisdiction to take at appraisement 501 real estate in different, jurisdiction to discharge from lien of legacies, etc 481 real estate in different, sale or mortgage of, under Re- vised Price Act 203-4 to which provisions as to bond of Register of Wills do not apply 259 County, will probated in one, filing certified copy in another 275 Court rooms of Orphans' Court 86 Creditors, application of for sale or mortgage of real estate to pay debts 433 barred by failing to present claims SSS Crops, bequests of 223 Cross or mark as signature to will 216 Curtesy, husband's share under Intestate Act in lieu of .... 305 Curtilage of building devised, designation of 508-11 Custody of estate set apart from residue to pay annuity, etc., 478 of person of child by testamentary guardian 224 D Death of executor, etc., effect of, on sale in partition 42 of fiduciary, effect of, on sale under Revised Price Act.. 196-201 of plaintiff, abatement of action on 522 Debt, evidences of, to be included in inventory and appraise- ment 394 Debts, account of, on application to Orphans' Court for sale or mortgage of real estate to pay debts 434 due by executor to decedent to be included in inventory 395 estate, statute of limitations as to 523 lien of, proceedings to relieve real estate from 456-8 of decedent 41S-58 discharge! of, by decree under Revised Price Act . . . ^ 186 sale or mortgage of real estate for 430-55 INDEX 711 Deceased fiduciary, bond of executor or administrator of .... 386 Decedent, presumed 366-80 Decedent's debts, discharge of by decree under Revised Price Act 186 lien of 418-29 payment of 41S-6 sale or mortgage of real estate for 430-55 contracts for sale or purchase of real estate 459-64 undivided interest in partition, valuation of 14 Decree as to surplus income from estate set apart out of resi- due to pay annuity or legacy 478 effect of, under Revised Price Act 186 for delivery of trust property, enforcement of 141-2 in partition, effect of 22 proceedings under Revised Price Act 183 of allowance of $5,000, etc., under Intestate Act, certified copy of to be recorded, etc 303 of confirmation of commissioners to designate curtilage of building devised 510 of Orphans' Court on final accounts of guardians 615 of presumption of death 369-71 of reduction of fund set apart out of residue to pay annuities or legacies 479 of sale in partition 30 of specific performance of decedent's contract for sale or purchase of real estate 459 of widovif's or children's exemption, recording, etc., of.. 414 on audit of guardian's account 612-4 on petition for discharge of residuary estate from annuity or legacy payable in future 476 on petition for removal of fiduciary 575 on petition of surviving spouse under Intestate Act where no known heirs 341 on petition to discharge real estate from lien of legacies, etc 482-7 when charge paid 416 on petition to enforce payment of legacy charged on land 471 on petition to relieve real estate from lien of debts 458 on petition where real estate is devised to executor at a valuation 506 on proof of service of citation in Orphans' Court 124 proceedings in Orphans' Court to compel obedience to .... 126-49 under Revised Price Act, execution of 184 Deed, effect of, under contract of decedent for sale or pur- chase of real estate 462 Deeds, acknowledgment of under Revised Price Act 195 and mortgages, acknowledgments of, when given under application for sale or mortgage of real estate to pay debts 440 Default of appearance in Orphans' Court, proceedings on . . . 125 712 INDEX Defect in appointment of fiduciary, eflfect of, on sale under Revised Price Act " 201 in appointment of fiduciary, effect of, on sale or mortgage of real estate to pay debts 446 in appointment relief under Revised Price Act 180 Delegation of discretion by fiduciary forbidden 495 Delivery of trust property, enforcement of 141-2 Depositions, comimission to take, by Register of Wills 269 in Orphans' Court 1S2-4 oral, oustide of state 154 Deputy Register of Wills, appointment and duties 261 Descendants of brother and sister, rights of under Intestate Act 321 of deceased grandparents, rights of under Intestate Act 327-31 rights of, under Intestate Act 311-5 Descent and distribution in cases of intestacy..-. 292-352 Desertion by husband bars share in wife's estate under Intes- tate Act 306 by parent, effect of on right to appoint testamentary guardian 226 by wife, bars share in husband's estate under Intestate Act 307 Designation of curtilage of building devised S08-11 Destroyed or lost records in Orphans' Court 156 Deviation from forms, immaterial, effect of 620 Devisavit vel non, certification toi Orphans' Court of proceed- ings on 279-80 issue of, precept for 160, 278 Devisee, forfeiture of right of, for murder of testator 244 Devises for limited purposes, relief under Revised Price Act 178 general, operation of 229 importing failure of issue, construction of 232 in favor of lineal descendants, not to lapse when 233 lapsed and void 233-5 of estate in fee tail 231 of real estate 230 at a valuation, procedure 501-7 revocation of 241 subject to mortgage 239 to brothers and sisters, not to lapse when 234 children 236-7 corporation, notice of 465 fall into residue when 235 "Die without issue," etc., construction of 232 Disability, legal, title in person under, relief under Revised Price Act 176 Discharge from attachment for contempt in Orphans' Court 139 of fiduciaries and sureties 563-4 of judgment against fiduciary on transcript to Common Pleas 562 INDEX 713 in Common Pleas, on transcript from; Orphans' Court 149 of liens by sale in partition 36 to pay debts 454 under Revised Price Act 208 of liens of decedent's debts by decree under Revised Price Act 186 of real and personal estate from lien of debts, etc., juris- diction of the Orphans' Court in 103 of the Orphans' Court in 103 of real estate from annuities or legacies payable in future 474-80 from lien of legacies, etc 481-90 of residue after providing for annuity or legacy payable in future 477 of surety, procedure for 582 Discretion, power of fiduciary to delegate 495 Disposition of appeals from Orphans' Court 164 title, jurisdiction of Orphans' Court in 99 Dissolution of attachment in Orphans' Court 138 of sequestration, filing of 136 Distraint for rent by executor or administrator 515 Distribution by employer of wages S58 compromise by fiduciary of matters pertaining to 527 in cases of intestacy 292-352 in kind 556 of estates 552-8 jurisdiction of Orphans' Court in 97 not over $300 554 of presumed decedent 372-3 of moneys paid into court on petition to discharge real es- tate from lien of legacies, etc 408 of proceeds of sale, issue on, from Orphans' Court to Common Pleas 161-2 of proceeds of sale under petition to enforce payment of legacies charged on land 471 of proceeds of sheriff's sale against decedent 427 Dividends, etc., from property set apart under Intestate Act as allow^ance of $S,ooo, etc 301 of property claimed under vi^idow's or children's exemption 412 Docketing of writ of sequestration in prothonotary's office . . 136 Dockets of Orphans' Court 89 partition 61 Domicile of decedent as determining probate of will 263 Dower, discharge of real estate from lien of 481-90 of widow in partition 39 widow's share under Intestate Act in lieu of 304 Drunkard, habitual, title in, relief under Revised Price Act . . 176 Drunkenness as ground of removal of fiduciary 567 Durante absentia, trustees 617-9 Duties and liabilities of administrators c. t. a 362 of Deputy Register of Wills 261 of trustee durante absentia 619 714 INDEX E Education of minor, allowance for 607 from proceeds of sale under Revised Price Act 189 Effect of appeal from Register of Wills 286 of decree of presumption of death 371 setting apart portion of residuary estate to pay annui- ties or legacies 480 of failure to give bond on caveat or appeal 282 of probate of will after three years 2TJ of removal of fiduciaries 577 of sale, etc., under Revised Price Act on removal, etc., of fiduciaries 199-201 of sale or mortgage of real estate to pay debts on removal, etc., of fiduciaries 444 of vacation of decree of presumption of death 374 Ejectment by vendor, action of, to survive 514 Election by guardians and trustees 498-500 of widow, effect on purchaser in partition 39 to take under or against will 245-9 Emblements, bequests of 223 Employer, distribution of wages 558 Enforcement of order or decree for delivery of trust property 141-2 of rights by superseding fiduciary 578 Entire vacancy, trustee to fill 585 Equality of shares under Intestate Act 343 Estates acquired under Intestate Act 342-3 distribution of 552-8 for life of another to be included in inventory, etc 398 tail barred by decree under Revised Price Act 186 Evidence, certified copies of wills as 270 copies of bond of Register of Wills as 258 inventory and appraisement as 273 in Orphans' Court 151-8 record of decree on petition of surviving spouse under Intestate Act, where no known heirs as 341 Examination of assets 540 Examiner of assets 540 office of, in Orphans' Court to take testimony, abolished 152 to take oral depositions outside of state 154 Exceptions to bond taken by Register of Wills 387 Execution against real estate of fiduciary for balance due .... 561 by executors or administrators of deceased plaintiff 517 for costs before Register of Wills 288 on caveat or appeal from Register of Wills 283 in Common Pleas on transcripts from Orphans' Court . . 148 of deed under contract of decedent for sale or purchase of real estate 462 of decrees under Revised Price Act 184 of nuncupative wills 218 of wills 215-16 INDEX 715 on judgments against decedents 426 for debts of decedent 422 stay of, against decedent 428-9 Executor as grantee in deed under contract of decedent for sale of real estate 464 not to be appointed guardian 601 of judgment creditor, revival of judgment against 526 real estate devised to, at a valuation 506 Executors' accounts 539-47 of sales in partition by 44 actions by and against SI3 acts of, not impeached by later will 365 application of, for sale or) mortgage of real estate to pay debts 432 to stay execution 428-9 bonds of 382-7 commission where also trustee 538 compensation on partition 46 debts of, to decedent, to be included in inventory, etc 395 effect of removal, etc., on sale in partition 42 foreign 590-8 awards to 595 jurisdiction of Orphans' Court in appointment, etc 96 liability of, for interest 536-7 non-resident, bond of 384 oath of 380-1 pleading by, effect of 521 of deceased fiduciary, bond of 386 power of, as to real estate 491-4 purchasers of real estate from, obligations of 496 removal, etc., effect of, on sale, etc., under Revised Price Act ■ 196-201 substitution of 512-22 Executory devises, barred by decree under Revised Price Act 186 Exclusive remedy to enforce contract of decedent for sale or purchase of real estate 460 Exemption of widows and children 403-14 when estate less than $500 409 to minor children 407-8 widow's, not disturbedi by allowance of $5,ooo, etc 296 Expense of advertising accounts 542 of advertising widow's or children's exemption claim.... 406 of corporate bond of fiduciary 399 of procuring guaranty of investments 531 F Failure of issue, construction of devise or bequest importing 232 to deliver election, effect of 246 to furnish translation of will in foreign language, effect of 272 to give bond on caveat or appeal, effect of 282 7i6 INDEX pay as ground for removal of fiduciary 571 Father and mother, rights of under Intestate Act 316 appointment of testamentary guardian by 224 Fee-tail, devise of estate in 231 Fees for copies of bonds, etc 274 for Commonwealth on issue of letters 289 for recording decree on petition to discharge real estate from lien of legacies, etc 482 for recording decree on petition of surviving spouse under Intestate Act where no known heirs 341 for recording election 249 for recording in Orphans' Court 89-90 for recording inventory and appraisement 273 for recording proceedings in partition 61 of appraisers of allowance of $S,ooo, etc. to surviving spouse under Intestate Act 297 of sheriff for service of writs in Orphans' Court 150 of witness to will for appearing 268 Fiduciaries, abatement of actions by or against 520 Act 353-623 actions against by co-fiduciaries S2S balance due by, transcripts of 561-2 bonds 388-90 compromise by 527 deceased, bond of executors or administrators of 386 discharge of 563-4 foreign S90-8 investments by 528 liability of, for loss in investments 530 non-resident 588-g proceedings on removal, etc., effect on sale or mortgage of real estate to pay debts 441-6 power to convey by attorney 495 deal in coal leases 623-4 receiving distribution in kind, duty of 557 removal of 565-78 requirement of security from 579-82 resident in another county, actions against 524 sale or mortgage to under Revised Price Act 202 statement of investments by 583 superseding, rights of 578 voting of stock by 535 "Fiduciary" defined 354 Fieri facias or sequestration in Orphans' Court 145, 147 writ of in Orphans' Court 129 Filing acounts by executors and administrators 539 of guardians, notice of 611 of trustees, notice of 547 and recording wills in foreign languages 271 ■ bond of Register of Wills 257 INDEX 717 certified copy of will probated in other counties copy in other counties of actions to enforce lien of dece- dent's debts election inventory and appraisement report of appraisers of widow's or children's exemption wills Final accounts of guardians Fines, process in Orphans' Court to recover First purchaser, rule as to blood, of, abrogated Foreclosure of mortgage under Revised Price Act Foreign executor or administrator, awards to fiduciary language, wills in Forfeiture of right to appoint testamentary guardian of rights by murderer of testator by murderer of an intestate Forfeitures, process to recover, in Orphans' Court to Commonwealth barred by decree under Revised Price Act Form and execution of wills immaterial deviation from of bond of administrator non-resident executor Register of Wills of election to take under or against wilts of guardian's bond of oath of executor or administrator of precept to Common Pleas on issue from Orphans' Court devisavit vel non of writ of sequestration in Orphans' Court G General bequests, operation of devises, operation of .' Grandchildren of deceased grandparents, rights of, under Intestate Act rights of under Intestate Act Grandparents and their issue, rights of under Intestate Act.. maternal, as heirs of illegitimates under Intestate Act . . . Granting letters, advertisement of letters on estate of presumed decedent letters testamentary or of administration Ground rents, conveyances on, execution of, under Revised Price Act sale of, etc., under Revised Price Act Grounds for removal of fiduciaries Guaranty of investments, authority to procure Guardians accounts of ad litem 27s 421 249 392 406 270 61S 146 332 188 S95 S90-8 271-2 226 244 347 146 186 21S-6 620 382 384 256 246 60s 380 160 278 134 229 229 326-330 310-314 324-31 334 391 370 355-64 114 169, 170 S6S-75 531 S99-616 608-is 616 7i8 INDEX on audit of guardian's account discharge of election by final accounts foreign jurisdiction of Orphans' Court in appointment, etc notice to removal, etc., effect of, on sale under Revised Price Act for mismanagement, etc testamentary leases of real estate by H Hearing by Orphans' Court or master on petition for letters on estate of presumed decedent of petition on contract by decedent for sale or purchase of real estate to discharge real estate from annuities or legacies payable in the future to discharge real estate from lien of legacies, etc to discharge real estate where charge paid to relieve real estate from lien of debts on exceptions to bond of executor or administrator Heirs, collateral, rights of under Intestate Act Husband's rights under Intestate Act baKfed by desertion or non-support share under Intestate Act in lieu of curtesy I Illegitimates, legitimation as to mother legitimation by marriage rights of, under Intestate Act Immaterial deviation from forms, effect of Improvements, payment for, with proceeds of sale under Re- vised Price Act Inadequate power of sale, relief under Revised Price Act .... Incapacity of executors, etc., effect of, on sale in partition .... fiduciary, under application for sale or mortgage to pay debts Income, apportionment of from property claimed under widow's or children's exemp- tion spendthrift trusts, liability of surplus, from estate set apart from residue to pay annui- ties or legacies Incompetency as ground for removal of fiduciary Indefinite failure of issue, avoided Index of actions to enforce lien of decedent's debts partition 612 563 498-SOO 61S S9I-8 93 616 196-20! 570 224-6 497 368 459 475 482 486 457 387 317-21 306 305 336 337 334-7 620 igo 179 42 441-6 412 240 478 568 232 418 62 INDEX 719 Indexing by prothonotary of actions to enforce lien of dece- dent's debts 421 elections 249 of guardians or trustees 498 petitions on contracts of decedent for sale or purchase of real estate 461 Inheritance among adopted children and relatives 338-9 as between mother, etc., of illegitimates 334 brothers and sisters of illegitimates 335 Injunction in Orphans' Court 114 Inquest in partition, award of 8 making of partition by 10-13 Insanity of executors, etc., effect of, on sale in partition .... 42 fiduciary, effect of, on sale under Revised Price Act .... 196-201 Intent of Intestate Act 352 Interest, liability of executor or administrator for 536-7 on money charged on land 472 on pecuniary legacy 467 on property claimed under widow's or children's exemption 412 set apart under Intestate Act as allowance of $S,ooo, etc 301 Interests of persons not in esse, protection of, in partition ... 60 Intervention in actions by persons presumed to be dead 375 Intestacy, descent and distribution in cases of 292-352 Intestate Act 292-352 Inventory and appraisement 392-403 recording, etc 273 by guardian 606 copiesi of, duty of Register of Wills to furnish 274 of trustees durante absentia 618 on application for sale or mortgage to pay debts 434 refusal of, as ground for removal of fiduciary 566 Investment of proceeds of sale under Revised Price Act 185 pendente lite on issue on proceeds of sale from Orphans' Court to Common Pleas 161-2 Investments by fiduciaries 528-31 by trustee for unknown parties, in partition 25 legal 528-30 statement of 583 Irregularity of appointment of fiduciary, effect of, on sale, etc., under Revised Price Act 201 of appointment of fiduciary, effect of, on sale or mortgage of real estate to pay debts 446 Issue, failure of, devise or bequest importing 232 from Orphans' Court to Common Pleas on distribution of proceeds of sale 161-2 of descendants of deceased grandparents, rights of under Intestate Act 331 of devisavit vel non on certification of proceedings to Com- mon Pleas 279-80 720 INDEX on precept to Common Pleas 278 rights of under Intestate Act 308-15 taking by representation under Intestate Act 315 to Common Pleas from Orphans' Court 159-62 precept for 160 to determine rights of surviving spouse under Intestate Act where no known heirs 341 J Jeopardy of property as grounds for removal of fiduciary 573 Joint fiduciaries, discharge of ." 564 power of survivor on removal of one, in sale, etc., under Revised Price Act 197 Judges, calling in other, when 75-6 in Orphans' Court, compensation when specially called ... 76 of Common Pleas sitting in Orphans' Court 77-8o Orphans' Court 69-72 sitting in Common Pleas 81-4 Judgments against decedents' execution on 426 against executor or administrator of judgment creditor, revival of 526 against executor or administrator of presumed decedent 375 against fiduciary, lien of, on transcript to Common Pleas 561 in action to enforce lien of decedent's debts 418 in Common Pleas on transcript from Orphans' Court, pe- tition for discharge of 149 not lien at death of decedent 423 revival of, by foreign fiduciary 594 which were lien at death of decedent 424 Jurisdiction and proceedings in partition, land in different counties 50-6 of Common Pleas over trusts pending not impaired 574 under Revised Price Act 168-184 of Orphans' Court 92-106 for collection of legacies, exclusive 470 on petition to discharge real estate from lien of lega- cies, etc 481 to appoint trustees 587 to authorize sale or mortgage of real estate to pay debts 430-2 to set aside real estate in different counties claimed as allowance of $S,ooo, etc., under Intestate Act 302 under Revised Price Act 168-84 petition to discharge real estate from lien where charge paid 483 of Register of Wills 262-355 of sales for distribution where land in two counties 33 of trustees' accounts 545 to grant leave to take at appraisement land in different counties Soi INDEX 721 • under widow's or children's claim of exemption from real estate in different counties 4^3 Jurors in partition, compensation of 9 where land in different counties S3 Jury trial of facts in Common Pleas on issues from Orphans' Court ISO K Kin, next of, rights of under Intestate Act 322 Kind, distribution in 556-7 L Land, legacies charged on, proceedings to enforce payment of 471-3 Lapsed and void legacies and devises 233-5 Laying out streets, etc., under Revised Price Act 174 Leases, coal mining, fiduciaries power as to 623-4 execution of, under Revised Price Act 184 mining, etc., under Revised Price Act 172 of real estate by testamentary guardians and trustees .... 497 private, of real estate, by executor 492 under Revised Price Act, acknowledgment of 195 Legacies, see also Bequests. abatement of 466 charged on land, procedure to enforce payment of 471-3 collection of 470 discharge of real estate from lien of 481-90 in favor of lineal descendant does not lapse when 233 jurisdiction of Orphans' Court to enforce payment 102 lapsed and void 233-5 payable in future, discharge of residuary estate from .... 474-80 pecuniary, interest on 467 when chargeable on residuary real estate 238 to brothers and sisters, not to lapse when 234 children 236-7 fall into residue when 23S when payable 467 Legal investments 528-30 Legatee for life, security by '. 469 forfeiture of rights for murder of testator 244 Legitimates only to take under Sec. 1-13 of Intestate Act 333 Legitimation of illegitimates as to mother 36 by marriage ." 337 Letters, advertisement of granting 391 , ancillary, granting of 355 cum testamento annexo, granting of 359 de bonis non, granting 361 cum testamento annexo, granting 360 granted under order of Court, effect on liability of sure- ties of Register of Wills 260 granting of 355-64 46 722 INDEX of administration durante minoritate durante absentia and pendente lite 364 who entitled to 357 on estate of presumed decedent, granting of 370 revocation of by Register of Wills 264 rogatory 153 Liability of administrators c. t. a 362 executors or administrators for interest 536-7 fiduciaries for loss on investments S30 income from spendthrift trusts 240 purchasers under sale to pay debts 455 Register of Wills for granting letters without bond 385 on Register of Wills' bond where letters granted under order of court 260 Lien of debts of decedent 418-29 not due within one year 419 procedure to relieve real estate from 4S6-8 of judgment against fiduciary on transcript to Common Pleas 561 of legacies, etc., discharge of real estate from 481-90 Liens, appointment of auditor to ascertain, in partition 43 discharge of, by sale in partition 36 or mortgage to pay debts 454 under Revised Price Act 208 for purchase money, effect of widow's or children's exemption 404 on real estate, taken as widow's or children's exemption 411 payment of, with proceeds of sale, etc., under Revised Price Act 190 Life-interests, charge of, in partition 28, 40 in partition, trustee for 41 Life-tenant, bequests of rents, etc., by 223 rent due to, action by executor or administrator for .... 516 security by 469 Limitation of actions on refunding bonds 560 claims under Intestate Act ^ 345 time for granting letters 356 Limitations, statute of, effect of, against debts due estate .... 523 Limited devise, relief under Revised Price Act 178 Limits of representation under Intestate Act 323 Lineal descendants, legacies or devises to, not to lapse when . . 233 Lines, squaring and adjusting under Revised Price Act 171 Loss on investments, liability of fiduciary for 530 Lost or destroyed records in Orphans' Court 156 Lunacy, etc., as ground for removal of fiduciary 567 Lunatics, title in, relief under Revised Price Act 176 M Maintenance of minor from proceeds of sale under Revised Price Act 189 INDEX 723 wife and children from spendthrift trust 240 Majority of cestui que trust, right of, to removal of fiduciary 574 Mariners, wills of 221 Mark or cross as signature to will 216 Marriage as revoking wills pro tanto 243 of parents legitimates illegitimates 337 Married women, right of, to devise or bequeath property held under sole and separate trust 245 Master, appointment of, for sale or mortgage under Revised Price Act 191 appointment of on application for sale or mortgage to pay debts 436 appointment of on petition for discharge of residuary es- tate from annuities or legacies payable in future. . . . 475 hearing by, on petition for letters on estate of presumed decedent 368 to consider investments 529 to consider organization of corporation to carry on busi- ness of decedent 533 to determine compromise of actions, etc 527 to take testimony in Orphans' Court 152 Mining lands, consolidation, etc., under Revised Price Act . . . 172 Mining leases by fiduciaries 623-4 Minor children, exemption to 407-8 Minors, allowance for support and education of 607 guardians of 599-616 maintenance and education of, from proceeds of sale under Revised Price Act 189 remainder interest, sale under Revised Price Act 185 title in, relief under Revised Price Act 176 Mismanagement as ground for removal of guardian 570 of fiduciary as ground for removal 566 Money, election of guardian or trustee to take instead of real estate 499 secured by proceeding under Revised Price Act, applica- tion of 189 Mortgages, acknowledgment of under Revised Price Act . . . 195 when given under application for mortgage of real estate to pay debts 440 by decedent 425 devise of real estate subject to 239 execution of under Revised Price Act 184 for payment of debts where fiduciary is mortgagee 447 unpaid purchase money of sale under Revised Price Act 194 money, application of under Revised Price Act 189 of real estate to pay debts 430-SS on decree of presumption of death 371 refunding of, given to pay debts 435 to fiduciary under Revised Price Act 202 724 INDEX secure unpaid purchase money on sale to pay debts 439 transfer of by foreign fiduciary 592 under Revised Price Act, appointment of master for 191 effect of removal, etc., of fiduciary, 196-201 procedure under 188-9 where real estate in different counties 203-4 Mother and father, rights of, under Intestate Act 316 appointment of testamentary guardian by 225 as heir of illegitimate under Intestate Act 334 Murder as affecting rights under Intestate Act 347 of testator, by beneficiary, effect of 244 N Natural guardian, payments to 602 Neglect of trust as ground for removal of trustee 572 or refusal of fiduciary to act under application for sale or mortgage to pay debts, effect of 441-6 effect of under Revised Price Act 196-201 to deliver election, effect of 246 Nephews and nieces, rights of under Intestate Act 319-21 Next of kin entitled to estate when 332 rights of, under Intestate Act 322 Nieces and nephews, rights of under Intestate Act 319-21 Non-residence as ground for removal of fiduciary 569 Non-resident executor, bond of 384 fiduciaries 588-9 actions against 524 minors, appointment of guardian of 603 Non-residents, not affected by Intestate Act 348 notice of accounts to 543 wills of personal estate of 250 Non-support by husband bars right to wife's estate under In- testate Act 306 Notes, etc., to be included in inventory 394 Notice in Orphans' Court 109 of accounts to non-residents 543 allowance of $5,000, etc., under Intestate Act 298 application for letters on estate of presumed decedent 366-7 sale or mortgage of real estate to pay debts .... 438 of real estate to pay debts where land in different counties 449 appointment of appraisers of real estate devised at a valuation 502 claim for widow's or children's exemption 406 decree of presumption of death 369 devise or bequest to corporation 465 examination of commissioners to designate curtilage of building devised 510 exception to bond of executors or administrators 387 filing accounts of guardians 611 INDEX 725 trustees 547 oral depositions outside of state 154 petition for partition 6 of surviving spouse under Intestate Act where no known heirs 341 on contract by decedent for sale or purchase of real estate 459 to discharge real estate from lien of legacies, etc 481 enforce payment of legacy charged on land ...... 471 relieve real estate from lien of debts 457 private sale for payment of debts 4SI in partition 48 proceedings to perpetuate testimony in Orphans' Court.. 156 under Revised Price Act 183 public sale under Revised Price Act 193 removal of resident fiduciary on appointment of foreign fiduciary 597 sale, etc., under Revised Price Act where real estate in different counties 204 service of, outside of state in partition 7 to appraisers 401 claimants of filing account S41 fiduciary to furnish statement of investments 583 guardians 616 Nuncupative wills 217-20 effect of, to revoke legacy 242 probate of 265 6 Oath of appraisers 400 of real estate devised at a valuation 503 of widow's or children's exemption 445 executors and administrators 380-1 officer of corporation fiduciary 381 Register of Wills. 255 Objection to private sale in partition 49 of real estate to pay debts 452 under Revised Price Act 206 public sales not affected 206 Obligation of purchasers of real estate from executors or trustees 496 to see to application of purchase money in sales under Revised Price Act 209 Officer, oath of, fiduciary corporations 381 Opening judgments against executors or administrators of pre- sumed decedents ' 375 Operation of general devise or bequest 229 Oral depositions outside of state 7j4 Orders and decrees on petition of surviving spouse under In- testate Act where no known heirs , , j 726 INDEX enforcement of, by superseding fiduciary 578 for delivery of trust property, enforcement of 141-2 of court, letters granted under, liability on bond of Regis- ter of Wills 260 on executors or administrators to apply for stay of execu- tion fc 429 on petition for removal of fiduciary 575 proceedings in Orphans' Court to compel, obedience to 126-49 Organization of corporation to carry on business of decedent 532-4 Orphans' Court Act 66-166 appeals from 163-4 by fiduciary, effect of 561 to from Register of Wills 284-6 approval by, of organization of corporation to carry on business of decedent 533 attachment execution in _. 130 of the person in 127, 132, 137-9 attestation of process in lii calling in other judge 75-6 certification of proceedings on issue d. v. n 279-80 citation in 116-23 clerk and assistants 87-91 clerk's fees and bill of costs 91 Common Pleas judges in, 77-8o control of, over power of sale of real estate by executor 493 courtrooms 86 decree, reopening 144 delivery of trust property, enforcement of 141-2 depositions, etc., in 152-4 oral, outside of state 154 discharge from attachment for contempt 139 dissolution of attachment in 138 distribution of proceeds of sale, issue on 161-2 dockets '. 89 exclusive jurisdiction of, over contracts of decedent for sale, etc., of real estate 460 over collection of legacies 470 fees of sheriff in 150 form of writ of sequestration in 134 hearing by, on petition for letters on estate of presumed decedent 368 injunctions in 1 14 issues to Common Pleas 159-62 judge sitting in Common Pleas 81-4 judges of 69, 73, 79 judgments of filed in Common Pleas 148 jurisdiction and powers of 92-106 in partition 2-3 of, to appoint trustees 587 INDEX 727 authorize sale or mortgage of real estate to pay debts 430-2 under Revised Price Act 168-84 lost or destroyed records in 156 master to take testimony in 152 notices in 109 organization of 67-73 Partition Act 1-65 perpetuation of testimony in 156 petition to, for attachment to enforce production of will 267 to compel Register of Wills to furnish copies of bonds, etc 274 power to appoint guardian S99 compel production of books and papers 155 proceedings in 74 to compel appearance 1 15-25 obedience to orders and decrees 126-149 prevent wasting of trust property 140 process in other counties 133 to recover fines, etc 146 production of papers and books in 155 publication and advertising in no records 86 custody of 88 return days of process 112 right of appeal from 74 rules of 107 satisfaction out of estate when party does not appear in 143 seal 85 separate where 68 sequestration, abatement of 135 fi. fa. in 145, 147 filing of, in Common Pleas 136 proceedings in 128, 132, 134-8, 143-S subpoenas in igi terms of 108 testimony in 152-4 in proceedings removed from Register of Wills 157-8 translations in 90 vacation, proceedings in 113 wasting trust property, prevention of 140 witnesses and evidence 151-8 writ of fi. fa. in 129 test. fi. fa. in 131 Owelty in partition 23-5 rule to pay non-resident 24 Ownership in severalty, etc., relief under Revised Price Act 181 728 INDEX P Papers and books, production of, in Orphans' Court 155 Parents, marriage of as legitimation of illegitimates 337 not to be appointed guardians 602 rights of, under Intestate Act 316 Parol contracts by decedent for purchase or sale of real estate 463 Partial vacancy, trustee toi fill 584 Parties in petition for citation for partition 6 Partition, account of sales in, by executors, etc 44 Act, Orphans' Court 1-65 allotment of shares, method of 17-20 to widow in 21 appeals in 63 application of purchase money in 38 appointment of auditor to ascertain liens 43 commissioners in 8 trustee to make sale in 34 auditor to ascertain amount due 57 award of inquest in 8 bids above valuation 16 bond in 35 charge of life interests in 28-40 coal and timber lands, jurisdiction of Orphans' Court in 3 combination of rules in 31 compensation of commissioners or jurors in 9 costs and counsel fee in 45-6 discharge of liens by sale in 36 docket 61 effect of decree 22 fees 61 index 62 jurisdiction and procedure when land in different counties 50-6 of Orphans' Court 2-3, 100 life interest, trustee for 41 making of, by commissioners or inquest 10-13 notice to parties 6 owelty in 23-5 parties to petition 6 payment or security therefor 23 petition for 4 citation in 5 private sales in 47-9 protection of interests of persons not in esse 60 recognizance by purchaser for purchase money 37 in general 57-9 rental value, deduction of 29 rule to accept or refuse purpart in 15 sales in 30 effect of remoavl, etc., of executor, etc 42 INDEX 729 service of notice outside of state in 7 trustee for unknown parties 25 valuation of decedent's undivided interest in 14 widow's interest in 26-7 to remain with purchaser 39 Payment into court on petition to discharge real estate from lien of legacy, etc 482 not required before election by surviving spouse 247 of debts of decedent, order of 41S sale or mortgage of real estate for 430-SS legacy charged on land, proceedings to enforce 471-3 liens and improvements with proceeds of sale under Re- vised Price Act igo mortgage under Revised Price Act 188 or security in partition ; 23 Pecuniary legacies chargeable on residuary real estate 238 interest on 467 Penalties for neglect of witnesses to wills to appear 268 Periodical payments, accrued, bequests of 223 Perpetuation of testimony in Orphans' Court 156 Person of child, custody of by testamentary guardian 224 Personal estate, bequest of, under nuncupative will 217-20 disposition of, by non-resident 250 Personalty revocation of bequest of 242 Petition by surety for order on fiduciary to account 583 for ancillary letters on estate of presumed decedent 367 appointment of guardian 599-604 trustee durante absentia 613 discharge of real estate fromi legacy or annuity 474 distribution 552 leave to take real estate at appraisement 501 letters 358 on estate of presumed decedent 366 partition in Orphans' Court 4 probate of will or later will of presumed decedent . . 376 reduction of bond of fiduciary 389 removal of fiduciary 575 sale by co-fiduciary under Revised Price Act on re- moval, etc., of other fiduciary 197 for distribution 32-3 or mortgage to pay debts on removal or neglect of fiduciary to act 441-3 sale under Revised Price Act on removal, etc., of fiduciary 198 summary removal of fiduciary 576 widow's and children's exemption 403-14 out! of real estate in different counties 413 of guardians for discharge 563 of surviving spouse under Intestate Act where no known heirs 341 730 INDEX on contract by decedent for sale or purchase of real estate 459 to designate curtilage of' building devised S08 discharge real estate from lien of legacies, etc 481-7 where charge paid 413-4 enforce payment of legacy charged on land 471 to have guardian's accounts audited 609-10 Orphans' Court for attachment to enforce production of will 267 in proceedings to set aside real estate in different counties claimed as allowance under Intestate Act 302 to compel Register of Wills to furnish copies of bonds, etc 274 to relieve real estate from lien of debts 456 to reopen decree in Orphans' Court 144 to vacate order of removal of fiduciary 576 under Revised Price Act 183 where real estate devised to executor at a valuation .... 506 Place of service of citations in Orphans' Court 119 Pleadings as to assets 512-22 by executor or administrator, effect of 521 Pluries citations in Orphans' Court 122 Posthumous children, rights between, under Intestate Act .... 344 Powers and duties of administrators, c. t. a 362 of administrators d. b. n 363 appointment, effect of general devise or bequest on 229 executors as to real estate 491-4 foreign fiduciaries 592 non-resident fiduciaries 588 sale, inadequate, relief under Revised Price Act .... 179 to authorize private sales under Revised Price Act 205 Precept for issue to Common Pleas, form of 160 to Common Pleas on issue d. v. n 278 Preferred debts of decedent 415 President Judge of Orphans' Court 71-3, 79 to attest process iii Presumed decedents 366-80 Presumption of death, decree of 369-71 Price Act, Revised 167-212 Private sales of real estate by executor 492 to pay debts 450-2 in partition 47-9 under Revised Price Act 205-6 not to discharge liens, etc 208 Pro tanto revocation of wills by marriage, etc 243 Probate of copies of wills 266 nuncupative wills 265 wills, before what Register 263 conclusiveness of 276 effect of 276-7 INDEX 731 of presumed decedent 378 time limit for 277 Procedure for widow's or children's exemption out of real estate in different counties 4I3 in sale of coal leases 623-4 to compel filing inventory and appraisement 393 enforce lien of decedent's debts 418-21 payment of legacy charged on land 471-3 organize corporation to carry on business of decedent 533 under Intestate Act where surviving spouse but no known heirs 341 where real estate devised at a valuation 501-7 will or later will of presumed decedent is produced 376 Proceedings by surety for discharge 582 for sale or mortgage of real estate to pay debts where fiduciary is purchaser or mortgagee 447 in Orphans' Court in default of appearance 125 to compel obedience to orders, etc 126-49 to relieve real estate from lien of debts 4S6-8 under Revised Price Act 183 where allowance of $S,ooo, etc., under Intestate Act is claimed out of real estate 299-300 Proceeds of sale, issue on, from Orphans' Court to Common Pleas l6l-2 Process, attestation of, in Orphans' Court , iii of Orphans' Court in other counties 133 return days of, in Orphans' Court 112 to recover fines, forfeitures and amercements 146 Production of books and papers in Orphans' Court 155 Proof of service of citation in Orphans' Court 124 Property included in inventory and appraisement 394-9 passing under Intestate Act 293 wills 214 removal of, by foreign fiduciary 596-7 selection of, for exemption of minor children 408 subject to widow's or children's exemption 403 Public sales, objections to, not affected 206 under Revised Price Act, effect of 208 Publication in Orphans' Court no of citation in Orphans' Court 123 Purchase money, application of, in partition 38 under Revised Price Act 189 sale by executor 496 recognizance for, in partition 37 unpaid, mortgage for, in sale under Revised Price Act . . . 194 of real estate, contract of decedent for 459-64 or mortgage by fiduciary 202 Purchaser, liability for widow's interest in partition 39 of, under sale for payment of debts 455 of real estate from executors, etc., obligation, of 496 732 INDEX R Rate of interest to be paid by fiduciary S37 Real estate, after acquired, to pass by general devise in will 228 allowance of $S,ooo, etc., out of, under Intestate Act .... 299-300 claim of exemption out of, by widow or children 410-11,413-4 contracts of decedent for sale or purchase of 459-64 devise of 230 subject to mortgage 239 devised at a valuation, procedure S01-7 to executor 506 discharge of, from lien of legacies, etc 481-go effect of decree of presumption of death on 371 election by guardian or trustee to take in lieu of proceeds 498 in different counties, application for sale or mortgage of, to pay debts 448-9 procedure under widow's or children's claim of ex- emption 413 under Revised Price Act 203-4 where claimed as allowance of $S,ooo, etc., under Intestate Act 302 investment in by fiduciaries 529 lease of by testamentary trustee or guardian 497 obligation of purchaser of, from executors, etc 496 of decedent, sale or mortgage of, to pay debts 430-SS powers of executors as to 491-4 purchase or mortgage of, by fiduciary 202 surviving, acting or remaining executors or adminis- trators c. t. a. as to 494 procedure to relieve from lien of debts 456-8 residuary, charge of pecuniary legacy on 238 retention of quality as, of proceeds of sale, etc., under Revised Price Act 189 revocation of devise of 241 sale of by foreign fiduciary 593 statement of, on application for sale or mortgage to pay debts 434 Recognizance, discharge of real estate from lien of 481-90 for purchase money in partition 37 in partition 57-9 Recording and registering decree of widow's or children's ex- emption 414 report of commissioners to designate curtilage of building devised 510 bond of register of wills 257 certified copy of decree of allowance of $5,000, etc., under Intestate Act 303 decree of presumption of death 371 on petition of surviving spouse under Intestate Act where no known heirs 341 to discharge real estate from lien of legacies, etc., 482 to take real estate at appraisement 505 INDEX 733 deeds and mortgages under Revised Price Act where land in different counties 204 elections 249 of guardians or trustees 498 inventory and appraisement 273 wills 270 in foreign language 271 Records of Orphans' Court 86, 88-90 lost or destroyed IS6 Recovery of widow's interest from purchaser in partition... 39 Reduction of bonds of fiduciary " 389 fund set apart out of residue to pay annuities, etc 479 Refunding bonds SS9-6o on distribution of estate of presumed decedent 373 requirement of SS3 of mortgage given to pay debts 435 Refusal of fiduciary to act under application to sell or mort- gage real estate to pay debts 441-6 or neglect to deliver election, effect of 246 to probate will, conclusiveness of 276-7 satisfy recognizance in partition, remedy for 49 Register of Wills Act 254-91 appeals from 105, zj(), 284-6 as clerk of the Orphans' Court 87-91 before what, wills should be probated 263 bill of costs 287 bond 256-60 citation by, to parties interested in estate of presumed de- cedent 377 collection of costs by 288 deputy, appointment and duties 261 duty of, as to accounts 542 to furnish copies of bond, etc 274 fee for Commonwealth on issue of letters by 289 jurisdiction 262-355 liability of, for granting letters without bond 385 oath of office 255 power to issue commission to take depositions subpcena witnesses 268 precept to Cornmon Pleas on issue d. v. n 278 revocation of letters by 264 testimony in proceedings removed from 157-8 Registry of decree to take real estate at appraisement 505 Rehearing of accounts of guardians 614 Relief granted under Revised Price Act 168-84 Religious and charitable uses, bequests for 222 association, title in, relief under Revised Price Act 176 preferment of guardians 600 Remainder interests, sale of under Revised Price Act 185 vested in husband, widow's share in, under Intestate Act. . 304 734 INDEX wife, husband's share in, under Intestate Act 305 Remainders barred by decree under "Revised Price Act 186 Remedy for refusing to satisfy recognizance in partition 59 Removal from state as ground for removal of fiduciary 569 of executors, etc., effect of, on sale in partition 42 fiduciaries 565-78 effect of, on sale under Revised Price Act 201 for failure to give security 580 mismanagement, on petition of surety 583 property by foreign fiduciary 59^-7 resident fiduciary on appointment of foreign fiduciary 597 or incapacity of fiduciary, effect on application for sale or mortgage of real estate to pay debts 441-446 Rent-charge, suit for, by executor or administrator 515 Rental value, deduction of, in partition 29 Rents and royalties, mining, under Revised Price Act 172 as assets for payment of decedent's debts 417 bequests of 223 of property set apart under Intestate Act as allowance of $5,000 301 claimed under widow's or children's exemption 412 to be included in inventory and appraisement 396-7 Re-opening decrees in Orphans' Court 144 Repealing clause in Fiduciaries Act 623 Intestate Act 352 Orphans' Court Act 166 Orphans' Court Partition Act 65 Register of Wills Act 291 Revised Price Act 212 Wills Act 253 Report of commissioners to designate curtilage of building de- vised 510 Representation, issue of descendants of deceased grandparents take by under Intestate Act 331 under Intestate Act, limits of 323 issue taking by under Intestate Act 315 Requisites of election to take under or against will 246 Residence of decedent as determining probate of will 263 Resident co-trustee of non-resident fiduciary 589 fiduciary, removal of, on appointment of foreign fiduciary 597 Residuary estate, discharge of, from annuity or legacy 474-80 real estate, charge of pecuniary legacy on 238 Residue, lapsed and void legacies, and devises fall into when.. 235 Retroactive force of provisions with reference to lien of de- cedent's debts 420 Return and confirmation of appraisement of real estate de- vised at a valuation 504 sale or mortgage to pay debts 453 under Revised Price Act 207 days in Orphans' Cour^ 112 INDEX 735 of appraisers 40i service of citation in Orphans' Court 121 Review of accounts, etc SSI Revised Price Act 167-212 Revival of judgments against executor or administrator of judgment creditor 526 by foreign fiduciary 594 which were liens at death of decedent 424 not liens at death of decedent 423 Revocation of letters 264 because of failure to give additional bond 387 effect on sale or mortgage of real estate to pay debts .... 445 on sale, etc., under Revised Price Act 196-201 of administration on estate of presumed decedent 378 on estate of presumed decedent 374 of wills 241-3 Right of married woman to bequeath or devise property held under sole and separate use trust 245 of surviving spouse to elect to take against will 245 of way, etc., under Revised Price Act 173 to letters of administration 357 Roads, etc., laying out, etc., under Revised Price Act 174 Rule as to blood of first purchaser abrogated 332 to accept or refuse or show cause, in partition, combined. 31 purport in partition 15 pay owelty in partition 24 show cause why sale in partition should not be made 30 suit should not abate 522 Rules of Orphans' Court 107 as to auditor 548 s Sales and mortgages of real estate to pay decedent's debts . . 430-55 under Revised Price Act, appointment of master for 191 by sheriff against decedent, distributon of proceeds 427 execution of, under Revised Price Act 184 for distribution 32-3 in partition, account of 44 appointment of trustee for 34 discharge of liens by 36 effect of removal, etc., of executor, etc 42 rule to show cause 30 of real estate by executor 491-4 foreign fiduciary 593 contract of decedent for 459-64 effect of appeal on 163 for payment of debts, jurisdiction of Orphans' Court in 98 to pay widow's or children's exemption 410 securities distributed to fiduciary in kind 557 736 INDEX proceeds of, issue from Orphans' Court to Common Pleas on ...; 161-2 to fiduciary, under Revised Price Act 202 under petition to enforce payment of legacy charged on land 471 Revised Price Act, advertisement of notice of I93 confirmation of 207 effect of removal, etc., of fiduciary 196-201 on obligation to see to application of purchase money 209 on liens 208 mortgage for unpaid purchase money '94 power of co-fiduciary on removal of the other. . . 197 where real estate in different counties 203-4 Satisfaction of judgment in Common Pleas on transcript from Orphans' Court I49, S62 recognizance in partition s8-9 out of estate when party does not appear i43 Scire facias on judgment sur decedent's debts 422 sur judgments against decedent 426 to revive judgments against executor, etc., of judgment creditor 526 not liens at death of decedent 423 which were liens at death of decedent 424 substituted executor or administrator 518-9 Scope of power of executor to sell real estate . .' 491 Seal of Orphans' Court 85 Securities unconverted distributable in kind 556-7 transfer of, by foreign fiduciary 592 Security by foreign fiduciary on removal of property 596 one entitled to income, etc 469 trustee appointed to fill vacancy 584-7 entry of, effect in sale under Revised Price Act 187 for satisfaction out of estate, party not appearing 143 injunction in Orphans' Court 114 sheriff in taking possession to prevent waste 140 or payment in partiton 2^ required on objection to private sale under Revised Price Act 206 on sale or mortgage to fiduciary under Revised Price Act 202 under Revised Price Act on removal, etc., of fiduci- ary 196-201 requirement of, from foreign fiduciary 579-82 to dissolve attachment in Orphans' Court 138 Service of attachment for inquest in partition 5 citation in Orphans' Court 1 17-120, 124 notice of proceeding under Revised Price Act 183 process in partition where land in different counties. . . 52 on fiduciary in another county 524 INDEX 737 rule to accept or refuse in partition IS show cause, sale in partition 30 sci. fa. on executor or administrator 519 on non-resident, of rule to pay owelty in partition 24 outside of state in partition proceedings 7 Separate trustee, when appointed S86 Sequestration, abatement of in Orphans' Court 13S in Orphans' Court 128, 132, 134-8, 143-5 fi. fa 14s, 147 Setting aside private sale in partition 49 Sheriff, fees of, for serving writs of Orphans' Court 150 inquest of, in partition where land in different countries 50 sale against decedent, distribution of proceeds of 427 Short title of Fiduciaries Act 622 Intestate Act 350 Orphans' Court Act 165 Orphans' Court Partition Act 64 Register of Wills Act 290 Revised Price Act 211 Wills Act 251 Sickness as ground for removal of fiduciary 568 Signature to wills 215-6 Sisters and brothers as heirs of illegitimates under Intestate Act 335 legacies and devises to, not to lapse when 234 rights of under Intestate Act 318-21 Soldiers, wills of 221 Sole and separate use trust, right of married woman to devise or bequeath property held under 245 Specific execution of contract by decedent to sell real estate, jurisdiction of Orphans' Court in loi Spendthrift trusts, liability of income from 240 Spouse and children or descendants, rights of 295 no children but collaterals, rights of 296-303 one child, rights of under Intestate Act 294 right to take against will 245 rights of under Intestate Act where no known heirs 340-1 Squaring of lines, etc., under Revised Price Act 171 Statement of investments by fiduciary 553 Statute of limitations against debts due estate 523 Stay of execution against decedent 428-9 Stock of corporation organized to carry on business of de- cedent 534 transfer of, by foreign fiduciary 592 voting of, by fiduciary 535 Streets, etc., laying out, etc., under Revised Price Act 174 Subdivision of premises under Revised Price Act 174 Subpcena of witnesses to wills 268 Subpoenas in Orphans' Court 151 47 738 INDEX Substitution in actions of persons supposed to be dead 375 or executors and administrators 512-22 Successors to trustees, appointment of 584-7 Suits against non-resident fiduciaries 524 on bonds of fiduciaries 388 Summary removal of fiduciaries 576 Superior Court, appeals to, from Orphans' Court 164 Support of minor, allowance for 607 Supposed decedents 366-80 Supreme Court, appeals to, from Orphans' Court 164 Surety of fiduciary, discharge of S63-4 proceedings for discharge of 582 right of, to demand statement of investments 583 service of citation on, in Orphans' Court 120 Surplus income from estate set apart from residue to pay annuity, etc 478 Survival of actions 512-22 Surviving issue to take to avoid lapse of legacy or devise 233 spouse and children or descendants, rights of 295 no children, but collaterals, rights 296-303 one child, rights of under Intestate Act 294 right of to take against will 245 rights of, where no known heirs. Intestate Act 340-1 T Tax on proceedings before Register of Wills 287 Tenant for life, bequests of rents, etc., by 223 Terms of Orphans' Court 108 sale for payment of debts 439 Testamentary, granting letters 355-64 guardians 224-6 efifect on by provisions of Fiduciaries Act S99-616 trust, vacancy in 584-7 trustees and guardians, lease of real estate by 497 Testatum fi. fa. in Orphans' Court 131 Testimony, commissioners to take, by Register of Wills 269 in Orphans' Court 152-4 perpetuation of 156 proceedings from Register of Wills iS7-8 Timber and coal lands, partition of, jurisdiction of Orphans' Court 3 Time for appeal from Register of Wills 285 distribution 552 filing inventory and appraisement 392 proving nuncupative wills 220 limitation on granting letters 356 of payment of decedent's debts 416 to take effect, construction of wills as to 227 when Intestate Act takes effect 351 Wills Act takes effect 252 INDEX 739 Title acquired in sales, etc., under Revised Price Act, effect of appeals on 210 disposition of, jurisdiction of Orphans' Court in 99 in estate tail, etc., relief under Revised Price Act 177 of acts, short. Fiduciaries Act 622 Intestate Act 350 Orphans' Court Act 165 Orphans' Court Partition Act 64 Register of Wills Act 290 Revised Price Act 211 Wills Act 251 subject of relief under Revised Price Act 175-82 to curtilage of building devised 510 real estate taken as vyidow's or children's exemption.. 411 under Intestate Act as allowance of $5,000 300 transferred by decree under Revised Price Act 187 under decree of presumption of death 371 Revised Price Act not affected by removal, etc., of fiduciary 200 Transcripts in Common Pleas, filing from Orphans' Court . . 148 of balance due by fiduciary 561-2 Transfer of securities by foreign fiduciary 592 Translations in Orphans' Court 90 of wills in foreign language 271 Triennial accounts of guardians 608 trustees 546 Trust affecting title, relief under Revised Price Act 176 inadequate powers, relief under Revised Price Act 181 management of, power of fiduciary to delegate discretion 495 neglect or abuse of, as ground for removal of trustee .... 572 property, enforcement of delivery of 141-2 wasting prevention of 140 procedure on 140 spendthrift, liability of income from 240 Trustees accounts of , 539-47 sale in partition by 44 appointment of to fill vacancy 584-7 commission of, when also executor 538 compensation of, on partition 46 durante absentia, jurisdiction of Orphans' Court in ap- pointment 95 powers and duties 617-19 effect of removal, etc., on sales in partition 42 election by 498-50D for distribution of estate of presumed decedent 373 life interest in partition 41 tenant, appointment of 469 sale in partition, appointment of 34 unknown parties in partition 25 foreign 590-8 740 INDEX awards to 598 in partition to protect persons not in esse 60 inadequate powers, relief under Revised Price Act 181 jurisdiction of Orphans' Court in appointment, etc 94 not to be appointed guardian 601 purchasers of real estate from, obligations of 496 removal, etc., effect of on sale under Revised Price Act. 196-201 of for neglect or abuse of trust, etc 5^5-78 separate, when appointed S86 testamentary, leases of real estate by 497 to make sale of minor's interest under Revised Price Act. 185 U Unconverted securities, distribution of in kind 556-7 Undivided interest of decedent in partition, valuation of 14 Unincorporated associations, title in, relief under Revised Price Act 176 United States service, minors in, appointment of guardians for 604 Unknown parties in partition, trustee for 25 V Vacancy, appointment of trustee to fill 584-9 Vacating streets, etc., under Revised Price Act 174 Vacation of decrees of presumption of death 370, 374 proceedings in Orphans' Court in 113 Validation of previous decrees where real estate devised at appraisement or valuation 507 elections by guardians or trustees 500 Valuation of decedent's undivided interest in partition 14 real estate devised to executor at 506 Void or lapsed legacies or devises 233-5 Voting of stock in corporations by fiduciaries 535 W Wages distribution of, by employer 558 Waste or mismanagement by fiduciary, as ground for removal 566 Wasting of trust property, procedure in 140 Weak-minded persons, title in, relief under Revised Price Act 176 Widow, allotment to, in partition 21 and children's exemption 403-14 exemption not disturbed by allowance of $5,000, etc 296 interest in partition 26-7 payment of, out of purchase money, in partition 39 rights under Tntestate Act barred by desertion 307 share under Intestate Act in lieu of dower 304 Wife and children, maintenance of, from spendthrift trust . . . 240 Wills Act 213-253 when to take effect 252 Wills certified copies of 270 citation to produce 267 INDEX 741 construction of as to time to take effect 227 copies of, probate of 266 discovery of, effect on letters already granted 3^5 election to take under or against 245-9 effect of, on administration of estate of presumed decedent 376 in foreign language — 271-2 form and execution of 215-6 nuncupative 217-20 effect of, to revoke legacy 242 probate of 264 of mariners and soldiers 221 personal estate by non-residents 250 presumed decedents, probate of 378 probate of, conclusiveness of 276-7 time limit for ZJ7 probated in other counties, filing copy of 275 property passing under 214 recording and filing 270 revocation of 241-3 pro tanto, by marriage, etc 243 to be probated before what Register 263 who may make 214 witnesses to, depositions of 269 subpoena and attachment of 268 Witnesses and evidence in Orphans' Court 151-8 depositions of aged, infirm and going in Orphans' Court. . 153 to nuncupative wills 219 wills 215-6 containing bequests for religious, etc., uses .... 222 depositions of 269 subpoena and attachment of 268 Writ of fi. fa. in Orphans' Court 129 sequestration 14S, 147 possession to prevent wasting trust property 140 testatum fi. fa. in Orphans' Court 131 Writing, reduction of nuncupative will to 220