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 3 1924 024 706 123 
 
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 Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024706123 
 
GUARDIAN AND WARD 
 
 PENNSYLVANIA. 
 
 THE SEVENTEENTH CHAPTER OF COMMENTARIES ON THE 
 LAWS OP PENNSYLVANIA. 
 
 BY 
 
 TATLOW JACKSON. 
 
 PHILADELPHIA: 
 
 EEES WELSH & CO., PUBLISHERS, 
 
 19 South Ninth Steeet, opposite New Post Office. 
 
 18 8 5. 
 
"B773F^ 
 
 ]{ntered according lo Act of Congress, in the year 1885, 
 
 By EEES welsh & CO., 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 SHERMAN & CO., PRINTERS 
 
PREFACE. 
 
 A NEW pamphlet only merits a preface when the author of it 
 has some especial reason for giving it, and in this regard mine 
 is the desire to acknowledge the assistance received by me from 
 a manuscript on the subject of the appointment of guardians 
 (awarded the Meredith Prize in 1881 by the Faculty of the 
 Law Department of the University of Pennsylvania), written 
 by Henry T. Dechert, Esq., of the Philadelphia Bar. 
 
 To a considerable extent Sections I. and IV. of the chapter 
 of the commentaries on the laws of Pennsylvania are taken from 
 Mr. Dechert's essay. 
 
 In the compilation of " Commentaries on the Laws of Penn- 
 sylvania " the writer will thankfully accept and acknowledge 
 aid from the members of the Pennsylvania Bar, or from any 
 fellow-students of law in the Commonwealth. 
 
 TATLOW JACKSON, 
 
 May 20th, 1885. 520 Walnut Street, 
 
 Philadelphia. 
 
TABLE OF CONTENTS. 
 
 PAGE 
 
 Table op cases cited, ix 
 
 Table op constitutional and statute laws, xvii 
 
 I. Constitution op Pennsylvania, xvii 
 
 II. British statutes, xvii 
 
 III. Acts of Congress xvii 
 
 IV. Acts of Assembly, ; xvii 
 
 SECTION I. 
 
 Of the different kinds of guardians, 18 
 
 1st, Derived from the common law 18 
 
 2d, Derived from the statute law, 18 
 
 Of guardian by nature, 19 
 
 Of guardian by nurture, 20 
 
 Of guardian in socage, 21 
 
 Of guardian in chivalry 22 
 
 Of guardian under Act 11 June, 1879, Pamphlet Laws, 144, ... 23 
 
 Of testamentary guardian, .......... 24 
 
 Of guardians appointed by the Orphans' Court, 25 
 
 Of foreign guardian under Act of 1832, 26 
 
 Of guardians for absentees in military service, 27 
 
 Of guardian ad litem 28, 29 
 
 Of guardian as prochein ami, 30 
 
 Of infants 31 
 
 Of the Orphans' Court, 32 
 
 SECTION II. 
 
 Of the different ages op minors for whom guardians are ap- 
 pointed. Of the law as it is on this subject in Pennsylvania, 33 
 Of the law as it was on this subject in England in 1769, ... 33, 34 
 
 Of the age of maturity of males and females, 34 
 
 Of the expiration of the term of apprentices, ...... 34 
 
 Of the effect of the marriage of a female ward, ... ... 34 
 
 Of the effect of the marriage of a male ward, .34 
 
 SECTION III. 
 
 Of the privileges and disabilities of minors, 35 
 
 Of how an infant must appear to defend a suit, 35 
 
VI 
 
 TABLE OF CONTENTS. 
 
 Of how suit may be brought for an infant, 
 
 Of the liability of an infant for personal torts, . 
 
 Of the capacity of an infant /erne covert to make a deed, . 
 
 Of the capacity of an infant to bind himself for money loaned. 
 
 Of the force of a warrant of attorney by an infant, . 
 
 Of the validity of a letter of attorney from an infant, 
 
 Of the validity of a contract of surety by an infant, . 
 
 Of the ability of an Infant to alien his land. 
 
 Of the capacity of an infant to contract marriage. 
 
 Of the capacity of an infant to choose a guardian, . 
 
 Of the capacity of an infant to bind himself for necessaries, 
 
 Of how an infant may appear to a suit, .... 
 
 Of how an infant may bring suit, 
 
 Of the voidability of contracts of an infant, 
 Of the remedy of a ward against his guardian, . 
 
 PAGE 
 
 35 
 35 
 35 
 35 
 35 
 36 
 36 
 36 
 36 
 36 
 36 
 36 
 36 
 36,37 
 . 38 
 
 SECTION IV. 
 Op the appointment and discharge of guardians. 
 
 Of the power of the father to appoint, 
 
 Of the power of the mother to appoint, 
 
 Of the power of the Orphans' Court to appoint. 
 
 Of the discharge of a guardian at his own petition, . 
 
 Of the discharge of a guardian for mismanagement or misconduct, 
 
 . 38 
 
 . 39 
 . 40 
 40,41 
 . 41 
 41-45 
 
 SECTION V. 
 
 Of the poweks, duties and eights of guaedians. 
 
 Of how guardians are regarded by the courts in Pennsylvania, 
 Of their power under decisions qf courts, . 
 Acts of Assembly relative to duties of guardians, 
 As to the amount of bonds of security of guardians, 
 As to the inventoi'ies to be filed by guardians, . 
 
 As to guardians' accounts, 
 
 As to distribution of the interests of minors. 
 
 45-78 
 
 . 46 
 47-50 
 51-67 
 67-68 
 68-69 
 69-75 
 76-78 
 
 SECTION VI. 
 
 Of the sukety on the bond of guaedian, 79-84 
 
 Of the power of the court to release the surety 79-80 
 
 As to actions upon the surety bond, 81-82 
 
 As to the rights of the surety, 83-84 
 
 SECTION VII. 
 Of the AcquisiTiON, partition, mortgaging and sale of tvaed's 
 
 PEOPEETY, 85-140 
 
 Of descent and purchase, 85 
 
TABLE OP CONTENTS. VU 
 
 PAGE 
 
 Of title by descent generally, 86 
 
 Of the Intestate Acts, . '. 87-93 
 
 Of decisions on the Intestate Acts, 93-94 
 
 Of title by purchase generally, 94-95 
 
 Of investments by guardians of ward's funds, 95-96 
 
 Of devise generally, 97 
 
 Of the Acts of Assembly relating to wills and devises, . . . 98-108 
 
 Of partition generally, 109-121 
 
 Of Acts of Assembly relating to partition, 109-1 20 
 
 Of decisions in cases of partition, 120,121 
 
 Of the mortgage and sale of minors' real estate, .... 121-140 
 Of mortgage or sale of decedent's or minor's estate under Act of 1832, . 122 
 
 Of sale of decedent's estate to pay his debts 123 
 
 Of Acts of Assembly in regard to sales, etc., of decedent's estate, . 123-137 
 Of the jurisdiction of Orphans' Court under Act of 1836, . . . 124-125 
 Of the right of a purchaser (creditor) to tender a receipt under Act 
 
 of 1846 125,126 
 
 Of the letting on ground-rent of minor's land under Act of 1847, . . 126 
 Of the title of purchaser at Orphans' Court's sales, ..... 126 
 Of authority to decree sales by Orphans' Court under Act of 1851, . 127, 128 
 Of the concurrent jurisdiction of Orphans' Court and that of Common 
 
 Pleas, 123 
 
 Of mortgaging, leasing or selling real estate under Act of 1853, . 129, 130 
 Of the title of purchaser at sales under Act of 1853, . . . .130 
 
 Of the substitution of personalty for realty under Act of 1853, . . . 131 
 Of the power to make and take conveyances under Act of 1853, . . 132 
 Of appeals under the Act of 1853, ........ 132 
 
 Of the prohibition to accumulate rents, issues and profits, . . . 132,133 
 Of security to be given in cases of sales by Court of Common Pleas and 
 
 Orphans' Court, 133 
 
 Of concurrent jurisdiction of Court of Common Pleas and Orphans' 
 
 Court 134 
 
 Of the power of the Orphans' Court in regard to times of sale, . . . 134 
 Of the power of the Court to appoint persons in place of trustees and 
 
 guardians, 134 
 
 Of the power of Courts to enable trustees and guardians to make deeds, . 134 
 Of the record of deeds made under the provisions of the Act of 1853, . 135 
 Of the discharge of liens under sales under Act of 1853, .... 135 
 Of the power of Orphans' Court to order sales of small estates, . . .135 
 Of the power of courts to decree combinations of certain lands, . . 136 
 Of the title of purchaser where defect in appointment, etc., of trustees, . 136 
 Of proceedings in regard to sales by executors and administrators when 
 
 the land lies in different counties, 136,137 
 
 Of decisions on the subject of sales of minors' estates, . . . 137-140 
 Table of descent and distribution in Pennsylvania of intestate's prop- 
 erty, 141 
 
TABLE OF CASES. 
 
 A. 
 
 PAGE 
 
 Archer v. Fronde, 1 Strange, 304, . . 31 
 
 Annie Larkin's Estate, 41 Legal Intelligencer, 75, 50 
 
 Arthur's Appeal, 1 Grant, 55, 57, 22, 32 
 
 Askew V. Odenheimer, 1 Baldwin, 380, 78 
 
 B. 
 
 Bachman's Estate, 1 Clarke's Cases, 253, 46 
 
 3 Bacon's Abridgment, 401 17 
 
 Baker v. Chalfant, 5 Wharton, 477, 155, 162, 166 
 
 Baker v. Eichards, 8 Sergeant & Kawle, 12, 72 
 
 Balliet's Appeal, 2 Harris, 451, 107 
 
 Bank of Pennsylvania v. Wise, 3 Watts, 404, 49 
 
 Bear's Account, 3 Luzerne Legal Observer, 6, 41, 72 
 
 Beale's Executor v. Commonwealth, 17 Sergeant & Eawle, 392, . . 81 
 
 Bedell v. Constable, Vaughan, 179, 39 
 
 Begg's Estate, 23 Pittsburgh Legal Journal, 85, 105 
 
 Bell's Appeal, 21 P. F. Smith, 465 139 
 
 Bevan v. Taylor, 7 Sergeant & Eawle, 397, 94 
 
 Bickley v. Biddle, 9 Casey, 276, 138 
 
 Bindley's Appeal, 19 P. F. Smith, 295 137 
 
 1 Blackstone's Commentaries, 460, . . . .17, 19, 33, 34, 36, 46, 91 
 
 2 Blackstone's Commentaries, 67, 22 
 
 Blauser v. Diehl, 9 Norris, 350, 80 
 
 Bloomer's Appeal, 2 Norris, 45, 45 
 
 Blount V. Darrach, 14 Sergeant & Eawle, 184, note, .... 73 
 
 Bonsall's Appeal, 1 Eawle, 266, 47 
 
 1 Bouvier's Dictionary, 119, 19 
 
 Bowman v. Herr's Executors, 1 Penrose & Watts, 282, .... 71 
 
 Braining's Estate, 7 Weekly Notes, 34 71 
 
 Brenneman's Appeal, 4 Wright, 115, 143, 144, 149, 156, 157, 164, 168, 184 
 
 Briggs's Appeal, 5 Watts, 91, 73 
 
 Broad Top Coal and Iron Company v. Eiddlesburg Coal and L-on Com- 
 pany, 15 P. F. Smith, 435, 94, 165, 176 
 
 Brown v. Caldwell, 10 Sergeant & Eawle, 114, .... 36, 47 
 
 Bunting's Appeal, 4 Watts & Sergeant, 469, 73 
 
 Burke v. Young, 2 Sergeant & Eawle, 383 121 
 
 Burton's Appeal, 7 P. F. Smith, 213, 138 
 
TABLE OF CASES. 
 
 203, 
 
 18, 
 
 36, 
 
 C. 
 Call V. "Ward, 4 Watts & Sergeant, 118, . 
 Camp V. Stark, 32 P. F. Smith, 235, . 
 Carey's Appeal, 25 P. F. Smith, 201, 
 Carskadden v. McGhee, 7 Watts & Sergeant, 140, 
 Chambers's Appeal, 1 Jones, 436, 
 
 Chambersburg Savings Fund Association's Appeal, 26 P. F. Smith, 
 Chorpenning's Appeal, 8 Casey, 315, 
 Clothier's Appeal, 3 Brewster, 254, . 
 
 Coke upon Littleton, 
 
 Colehower's Estate, 5 Weekly Notes, 343, 
 Commonwealth v. Addicks, 5 Binney, 520, 
 
 1. Anderson, 1 Ashmead, 55, . 
 
 V. Clarke, 10 Philadelphia, 419, 
 
 ■•/. Cox, 12 Casey, 442, . 
 
 V. Demot, 7 Philadelphia, 624, 
 
 V. Douglass, 1 Legal Gazette, 64, 
 
 V. Fee, 6 Sergeant & Eawle, 255, 
 
 V. Gilkeson, 5 Clarke's Cases, 32, 
 
 ■V. Gracey, 38 Legal Intelligencer, 104, 
 
 V. Hantz, 2 Penrose & Watts, 333, 
 
 V Hart, 8 Weekly Notes, 156, 
 • V. Pray, 1 Philadelphia, 58, 
 
 „. Baser, 12 P. F. Smith, 436^ 
 
 (J. St. John's Orphan Asylum of Philadelphia, 9 Phila- 
 delphia, 572, 
 
 V. Smith, 1 Brewster, 547, 
 
 V. Waleiser, 2 Legal Chronicle, 305 
 Cowan's Appeal, 24 P. F. Smith, 329, 
 Crawford's Estate, 27 Pittsburgh Legal Journal, 25, 
 Cumming's Appeal, 1 Jones, 272, 
 Curtia v Patton, 11 Sergeant & Eawle, 305, 
 
 D. 
 Banner v. Shissler, 7 Casey, 288, . 144, 149, 155, 156, 1C3, 165, 167, 168 
 
 Davis's Appeal, 10 P. F. Smith, 118 47 
 
 Darmody's Estate, 6 Weekly Notes, 487, .'.... .39 
 
 Demmy's Appeal, 7 Wright, 155, 139 
 
 Denison v. Cornwell, 17 Sergeant & Eawle, 374, 81 
 
 Dickinson I). Dickinson, 11 P. F. Smith, 401 103,106 
 
 Dieterrick r. Heft, 5 Barr, 93, 71 
 
 Douglass' Appeal, 1 Norris, 169, . 71 
 
 Dowell V. Thomas, 1 Harris, 41, 94, 169 
 
 Duval's Appeal, 2 Wright, 112 137 
 
 45 
 106 
 106 
 48 
 74 
 46 
 49 
 61 
 20,21 
 39 
 21 
 20 
 139 
 83 
 21 
 24 
 20 
 21 
 81 
 47 
 20 
 67 
 81 
 
 25 
 21 
 
 20 
 
 121 
 
 138 
 
 . 34 
 
 36, 37 
 
 E. 
 
 Edwards's Appeal, 11 Wright, 144 107 
 
 Bichelberger's Appeal, 4 Watts, 84, 47, 49 
 
TABLE OF CASES. XI 
 
 * PAGE 
 
 English V. Harvey, 2 Eawle, 305 49 
 
 Eshleman's Appeal, 24 P. F. Smith, 42, 145, 150, 151 
 
 Estate of William Lee, 15 PMUidelphia, 545, 167 
 
 Estler V. Estler, 1 Browne, 322 26 
 
 Etter V. Curtis, 7 Watts & Sergeant, 170 36 
 
 F. 
 
 Fernsler v. Mover, 3 Watts & Sergeant, 416, 
 
 Fitzherbert's Natura Brevium, . 
 
 Plade Minors' Estate, 40 Legal Intelligencer, 131, 
 
 Flannerj's Will, 12 Harris, 502, 
 
 Flory V. Becker, 2 Barr, 470, . 
 
 Foltz's Appeal, 5 P. F. Smith, 428, . 
 
 Fox V. Mench, 3 Watts & Sergeant, 444, 
 
 Frankenfield v. Gruver, 7 Barr, 448, 
 
 Frew V. Clarke, 30 P. F. Smith, 170, 
 
 Funk V, Haldeman, 3 P. F. Smith, 229, 
 
 . 47 
 29, 31 
 
 50 
 106 
 
 76 
 
 71 
 138 
 141 
 105 
 
 47 
 
 G. 
 Gelbach's Appeal, 8 Sergeant & Rawle, 205, 
 Gideon's Estate, 2 Weekly Notes, 355, . 
 Gillan v. Dixon, 15 P. F. Smith, 395, 
 Gillen's Appeal, 8 Weekly Notes, 499, . 
 Gillmore v. Boss, 2 Pittsburgh, 500, . 
 Gilman v. Eodgers, 9 Pittsburgh Legal Journal, 209, 
 Girard Life Insurance Company v. Wilson, 7 P. F. Smith 
 
 Gordon's Appeal, 12 Norris, 361, 
 
 Graham's Estate, 14 Weekly Notes, 31, . 
 
 Graham's Appeal, 1 Dallas, 136, . . . ■ . 
 
 Grand Army of the Republic v. Wall, 6 Lancaster Bar, 62, 
 
 Greenawalt's Appeal, 1 Wright, 95, . 
 
 Green's Estate, 7 Philadelphia, 502, 
 
 Gress'e Appeal, 2 Harris, 463, . 
 
 Grider?). McClay, 11 Sergeant & Rawle, 232, 
 
 Guthrie's Appeal, 1 Wright, 9, 
 
 Guthrie v. Murphy, 4 Watts, 80, 
 
 H. 
 Hamilton v. Buckwalter, 2 Yeates, 389, . 
 Hampton's Case, 17 Sergeant & Rawle, 144, 
 Hannen v. Ewalt, 6 Harris, 9, . 
 Hart's Appeal, 8 Barr, 32, 
 Hawkins' Appeal, 8 Casey, 263, 
 Hayes's Appeal, 8 Norris, 256, . 
 Heft & Hix t). McGill, 3 Barr, 256 
 Hemphill's Appeal, 6 Harris, 303, 
 Hennessy v. The Western Bank, 6 Watts & Sergean 
 Hess's Estate, 19 P. F. Smith, 272 
 Hocker v. Wood, 9 Casey, 466, . 
 
 182, 
 
 141, 
 
 146, 
 
 143, 146, 149, 1 
 
 t, 300, 
 
 , 50 
 
 105 
 
 146 
 
 74 
 
 173 
 
 62 
 
 159 
 
 139 
 
 30 
 
 22 
 
 72 
 
 62 
 
 45 
 
 72 
 
 76 
 
 'JS 
 
 36 
 
 103 
 50 
 49 
 
 172 
 
 56, 157, 164, 167, 168 
 . 31 
 . 105 
 . 46 
 . 83 
 . 41 
 
xu 
 
 TABLE OF CASES. 
 
 Hoffner v. Wyneo^k, 1 Outerbridge, 130, 
 Holt V. Clarenoien, Strange, 937, 
 
 Hood on Executors, 
 
 Hughes' Appeal, 3 P. F. Smith, 500, 
 Hughes' Appeal, 7 P. F. Smith, 179, 
 Hughes V. Gallans, 31 Legal Intelligencer, 349, 
 
 PAGE 
 
 . 93 
 . 36 
 . 76 
 46, 49, 73 
 93, 146 
 . 36 
 
 I. 
 
 2 Institutes, 390, 31 
 
 Irwin J). Covode, 12 Harris, 162 171 
 
 Isaacs V. Boyd, 5 Porter (Alabama), 388 19, 35 
 
 Jackson and Gross, Introduction, 
 Jackson v. Todd, 6 Johnson's Eeports, 257, 
 Jennings v. Randall, 8 Term Eeports, 335, 
 Johnson v. Lines, 6 Watts & Sergeant, 80, 
 
 21 
 37 
 37 
 36 
 
 Kelchner v. Forney, 5 Casey, 47, 
 Kiegel's Appeal, 12 Weekly Notes, 179, . 
 King, The, v. Thorpe, 5 Modern, 221, 
 Kinter's Appeal, 12 P. F. Smith, 322, . 
 Kisler v. Kisler, 2 Watts, 326, . 
 Klohs V. Reifsnyder, 11 P. F. Smith, 240, 
 Knox V. Flack, 10 Harris, 337, 
 Konigmacher v. Kimmel, 1 Penrose & Watts, 
 Krout's Appeal, 10 P. F. Smith, 380, 
 Kurtz V. Saylor, 8 Harris, 205, 
 
 207, 
 
 . 83 
 156, 164, 174 
 . 20 
 73, 74 
 . 49 
 . 121 
 . 35 
 . 50 
 93, 142, 147, 154, 161 
 106 
 
 Landis's Account, 1 Pearson, 401, .... 
 
 Lane's Appeal, 4 Casey, 487, 
 
 Lant's Appeal, 9 Weekly Notes, 209, 
 
 Lee's Appeal, 3 Casey, 229, 
 
 Leiter's Appeal, 10 Weekly Notes, 225, . 
 
 Lewis V. Gorman, 5 Barr, 164, ..... 
 
 Livingood's Appeal, 2 Pennypacker, 70, . 
 
 Lloyd 11. Commonwealth, 35 Legal Intelligencer, 171, 
 
 Lukens' Appeal, 7 Watts & Sergeant, 48, 
 
 M. 
 
 . 71 
 
 142, 147, 154, 161 
 
 . 107 
 
 32, 33 
 
 . 84 
 
 . 94, 169 
 
 78 
 
 . 58, 67, 80 
 
 McCann's Appeal, 13 Wright, 304, . 
 McClure v. Commonwealth, 1 Weekly Notes, 31, 
 McConkey v. McConkey, 9 Watts, 352, . 
 McCormick v. Joyce, 7 Barr, 249, 
 McDowell V. Addams, 9 Wright, 430, 
 
 . 32 
 
 . 82 
 
 . 146, 159 
 
 . 71 
 
 94, 143, 148, 155, 162 
 
TABLE OF CASES. Xlll 
 
 PAGE 
 
 McGaw V. Marshal], 7 Humphrey, 121, 37 
 
 McGhee v. Willing, 31 Legal Intelligencer, 37, ... . 35, 37 
 
 McGunigal v. Mong, 5 Barr, 269 20 
 
 McMahon's Estate, 14 Weekly Notes, 311, 72 
 
 McTaggart «. Thompson, 2 Harris, 149, 106,107 
 
 McM'illiams v. Eoss, 10 Wright, 369, 93, 159, 173 
 
 Mackeldey's Roman Law, 160, 142,149,153 
 
 MafBt V. Clark, 6 Watts & Sergeant, 258, 172, 173 
 
 Marr's Appeal, 28 P. F. Smith, 66, 41 
 
 May V. Espenshade, 1 Pearson, 139, 167, 168, 169, 176 
 
 Mechling's Appeal, 2 Grant, 157 141 
 
 Mellish V. Da Costa, 2 Atkyns, 15 39 
 
 Mercer v. Watson, 1 Watts, 330, 30 
 
 Meredith's Estate, 1 Parson's. 433 105 
 
 Miller's Appeal, 4 Wright, 387, 94, 147 
 
 Miller's Estate, 1 Barr, 326, 47, 48 
 
 Mitchell's Estate, 1 Legal Gazette, 74 139 
 
 Mohney v. Evans, 1 P. F. Smith, 80 .36 
 
 Montgomery v. Petriken, 5 Casey, 118, . . 143, 144, 148, 149, 156, 172 
 
 Moody u. Vandyke, 4 Binney, 31 105 
 
 Moore v. McEwen, 5 Sergeant & Eawle, 373, 36 
 
 Moyer v. Thomas, 2 Wright, 426, 153 
 
 Myers v. Vanderbelt, 3 Norri's, 510, 105 
 
 N. 
 
 Naglee's Estate, 2 P. F. Smith, 154, 121 
 
 Neff's Appeal, 12 Wright, 501, 106 
 
 Newcomer's Appeal, 7 Wright, 43, 58 
 
 Nichol V. Hall, Pittsburgh Legal Journal, 1881, 239, . . . 169, 176 
 Nicholson's Appeal, 8 Harris, 50 45 
 
 O. 
 
 Oliver v. Houdlet, 13 Massachusetts, 237 37 
 
 Overholtzer's Estate, 8 Lancaster Bar, 109, 73 
 
 P. 
 
 Packer's Estate, 1 Legal Gazette, 13, 32 
 
 Packer's Estate, 7 Philadelphia, 473 138 
 
 Parker's Appeal, 11 P. F. Smith, 478, 74 
 
 Parr v. Bankhart, 10 Harris, 291 94 
 
 Person's Appeal, 24 P. F. Smith, 123, 145, 150, 151 
 
 Pim V. Dowling, 11 Sergeant & Eawle, 66, 46 
 
 Pratt's Case, 2 Legal Gazette, 109 21 
 
 Pusey V. Clemson, 9 Sergeant & Eawle, 204, 78 
 
 E. 
 
 Ealston's Estate, 3 Weekly Notes, 392, 32 
 
 Eatcliffe's Case, 3 Coke, 37, 25 
 
 Eeed's Appeal, 1 Norris, 428, 47, 105 
 
 Eeed v. Palmer, 3 P. F. Smith, 379 138 
 
XIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Reeve's Domestic Relations, 34 
 
 Respublica v. Keppele, 2 Dallas, 197, 48 
 
 Rigleri;. Cloud, 2 Harris, 361, 93 
 
 Robinson v. Zollinger, 9 Watts, 169, 26 
 
 Eosenbach v. Commonwealth, 34 Legal Intelligencer, 2o9, ... 79 
 
 Eoyer v. Myers, 3 Harris, 88 58 
 
 Royer's Appeal, 1 Jones, 36 47 
 
 Biichizky v. De Haven, ] Outerbridge, 202, 38 
 
 Eules of Orphans' Court of Philadelphia, 17,59,67 
 
 Eundel v. Keeler, 7 Watts, 239 36 
 
 Eutherford v. Commonwealth, 7 Weekly Notes, 534, .... 81 
 
 S. 
 
 Say's Executors v. Barnes, 4 Sergeant & Eawle, 112, 
 
 School Directors v. James, 2 Watts & Sergeant, 568, 
 
 Scott V. Wistar, 13 Weekly Notes, 295, . 
 
 Seeker's Estate, 3 Weekly Notes, 391, 
 
 Senseman's Appeal, 9 Harris, 331, . 
 
 Shaffer v. Shaffer, 14 Wright, 396, 
 
 Shannon's Estate, 1 Philadelphia, 299, . 
 
 Sherer Minors' Estate, 41 Legal Intelligencer, : 
 
 Shilling's Appeal, 1 Barr, 90, . 
 
 Shirk's Estate, 1 Lancaster Bar of 18 December, 18t)9, 
 
 Shontz V. Brown, 3 Casey, 123, . 
 
 Shrader v. Decker, 9 Barr, 14, . 
 
 Singerly v. Swain, 9 Casey, 102, 
 
 Small V. Murphy, 1 Luzerne Legal Register, 332, 
 
 Smith V. Bowen, 1 Modern Eeports, 25, . 
 
 Snodgrass' Appeal, 28 Pittsburgh Legal Journal, 127, 
 
 Snodgrass' Appeal, 1 Wright, 377, . 
 
 Snyder's Appeal, 12 Casey, 166, 
 
 Stanley's Appeal, 8 Barr, 431, . 
 
 Stanton's Estate, 7 Weekly Notes, 18, 
 
 Stark ,t). Stark, 5 P. F. Smith, 62, . 
 
 Stewart's Estate, 3 Weekly Notes, 476, . 
 
 Stiver's Appeal, 6 P. F. Smith, 9, . 
 
 Storey's Appeal, 2 Norris, 97, . 
 
 Stoiighton's Appeal, 7 Norris, 198, . 
 
 Swain v. Fidelity Insurance Co., 4 P. F. Smith, 455, 
 
 45, 58, 
 
 14. 
 
 60, 
 
 46, 78 
 28, 47 
 
 108 
 72 
 32 
 
 121 
 
 73 
 
 50, 73 
 
 44 
 
 46 
 
 137 
 35 
 
 139 
 35 
 36 
 
 138 
 48 
 
 120 
 
 105 
 69, 71 
 
 153 
 
 138 
 
 5, 150, 151 
 
 46, 47 
 
 30, 31 
 
 T. 
 
 Taylor v. Mitchell, 7 P. F. Smith, 209 106 
 
 Thackray's Appeal, 25 P. F. Smith, 132, 46 
 
 Thomas's Estate (Eussell), 3 Weekly Notes, 96, 137 
 
 Thorn's Appeal, 11 Casey, 47, 63 
 
 Tobin's Estate, 11 Weekly Notes, 483, 79 
 
TABLE OF CASES. XV 
 
 PAGE 
 
 Totten's Appeal, 10 Wright, 301 48 
 
 Towne v. Wiley, 23 Vermont, 355, 35 
 
 Turner v. Patridge, 3 Penrose & Watts, 172, 30, 31 
 
 U. 
 United States v. Bainbridge, Mason, 82, ....... 37 
 
 V. Fisher, 2 Craneh, 391 77 
 
 V. 
 
 Vanartsdalen v. Vanartsdalen, 2 Harris, 384, 26, 32, 39 
 
 Vanbramer v. Cooper, 2 Johnson, 279, 37 
 
 Vasse V. Smith, 6 Craneh, 226, 35 
 
 Veldfe V. Levering, 2 Eawle, 269, 49 
 
 W. 
 
 Walker v. Dnnshee, 2 Wright, 430 173 
 
 Wallace v. Harmstad, 8 Wright, 498, 21 
 
 Wain's Appeal, 4 Barr, 502, 120 
 
 Watson V. Hensel, 7 Watts, 344 36 
 
 Washington, Estate of A. D., 8 Philadelphia, 182, 140 
 
 Webb V. Evans, 1 Binney, 565, 103 
 
 Weir's Estate, 13 Weekly Notes, 518, 141 
 
 Weiting v. Nissley, 6 Barr, 142, 74 
 
 West V. Gregg, 1 Grant, 53, 35 
 
 West V. West, 10 Sergeant & Eawle, 445, 106 
 
 Whitney v. Dutch, 14 Massachusetts, 457, 37 
 
 Will's Appeal, 10 Harris, 325, 46, 49 
 
 Wilson V. Gaston, 11 Norris, 207 106 
 
 Worrell's Appeal, 11 Harris, 44 48 
 
 Wright V. Sewing Machine Co., 1 Norris, 80, 83 
 
 Y. 
 
 Yeager's Appeal, 10 Casey, 173, 49, 71, 73 
 
TABLE 
 
 CONSTITUTIONAL AND STATUTE LAWS. 
 
 I. CONSTITUTION OF PENNSYLVANIA, PAMPHLET LAWS, 
 
 1874. 
 
 PAGE 
 
 Mentioned . 139 
 
 Article III., clause 22, ... . . . 95 
 
 Article V., s. 22, clause 3, 73 
 
 II. BRITISH STATUTES. 
 
 3 Edward I., c. 22, 2 Blackstone's Commentaries, 67, . . . 23 
 
 13 Edward I., c. 15, Roberts's Digest, 317, 31 
 
 31 Henry VIIL, u. 1, Ibid., 217, 109 
 
 32 Henry VIIL, c. 1, 2 Blackstone's Commentaries, 375, .... 97 
 
 32Henry VIIL, c. 5, Ibid., 375, 97 
 
 32 Henry VIIL, c. 32, Roberts's Digest, 224, 109 
 
 12 Charles II., c. 24, Ibid., 312 18, 2-', 25, 38 
 
 29 Charles II., c. 3, 2 Blackstone's Commentaries, 376, ... 97 
 
 III. ACTS OF CONGRESS. 
 1797, March 3, section 5, .77 
 
 IV. ACTS OF ASSEMBLY OF PENNSYLVANIA. 
 
 1681, Charter to William Penn, Duke of York's Laws, 81, . . 86 
 
 1683, Relating to Descent, Duke of York's Laws, 142, .... 86 
 
 1684, Relating to Descent, Duke of York's Laws, 174 86 
 
 1693, Relating to Security from Guardians, 1 Dallas's Laws, Appendix 33, 55 
 
 1697, Relating to Security from Guardians, 1 Dallas's Laws, Appendix 34, 56 
 
 1701, Court Laws, Duke of York's Laws, 317, . ... 55 
 
 1705, Concerning Wills, 1 Smith's Laws, 81, 97 
 
 1713, March 27, Establishing Orphans' Courts, 1 Smith's Laws, 81, 29, 55 
 
 1770, September 29, Relating to Apprentices, Ibid., 309, . 34 
 
 1777, January 28, Reviving Former Laws, Ibid., 429, .... 34 
 
 1794, April 19, Relating to Descent, 3 Ibid., 154, 86 
 
 1800, March 12, Relating to Executors, 3 Ibid., 433, . . .98, 105 
 
 1807, April 7, Relating to Partition, 4 Ibid., 401, .... 55 
 
XVUl TABLE OF CONSTITUTIONAL AND STATUTE LAWS. 
 
 PAGE 
 
 1815, March 13, Relating to Divorce, 6 Ibid., 289, 98 
 
 1818, March 10, To Enable Executors, etc., 7 Ibid., 79, . . . . 140 
 1821, March 30, Relating to Orphans' Conrt, Ibid, 432, . . . 55,56 
 1832, March 15, Relating to Registers' Courts, Pamphlet Laws, 135, . 97, 98 
 
 1832, March 29, Revised Act on Orphans' Courts, Pamphlet Laws, 190, 
 
 17, 18, 26, 29, 30, 33, 40, 41, 42, 44, 45, 48, 50, 51, 52, 5-5, 56, 58, 59, 
 60, 67, 68, 69, 70, 71, 75, 84, 109, 111, 122, 128 
 
 1833, March 27, Relating to Guardians, Pamphlet Laws, 99 . . ,38 
 1833, April 8, Relating to Wills and Testaments, Pamphlet Laws, 249, 
 
 18, 25, 39, 98, 100, 103 
 
 1833, April 8, Intestate Act, or of Distribution, Pamphlet Laws, 315, 
 
 22, 76, 77, 86, 87, 94, 123 
 
 1834, February 24, Relating to Executors and Administrators, Pamphlet 
 
 Laws, 73, . . . 48, 57, 65, 66, 76, 77, 101, 109, 112, 118, 123 
 
 1835, April 14, Supplement to Act 29 March, 1832, Pamphlet Laws, 27-5, 
 
 70, 109, 113 
 
 1836, June 13, Relating to Commencement of Actions, Pamphlet Laws, 
 
 587, 29, 30 
 
 1836, June 14, Relating to Bonds, Pamphlet Laws, 639, ... 68, 82 
 1836, June 16, Supplement to Acts Relating to Orphans' Courts, Pam- 
 phlet Laws, 682, . . 26 
 
 1840, October 13, Relating to Orphans' Courts, Pamphlet Laws of 1841, 
 
 1, . . . 73, 74 
 
 1840, October 13, Relating to Orphans' Court, Pamphlet Laws, 319, 
 
 109, 113,120, 125 
 1844, April 6, Partition of Estates, Pamphlet Laws, 214, . 109,113 
 
 1844, May 6, Legacies and Devises, Pamplilet Laws, 565, . . . 102 
 
 1845, February 27, Appointment of Auditors, Pamphlet Laws, 69, . . 70 
 184.5, April 15, Relating to Partition, Pamphlet Laws, 458 . . 109, 114 
 
 1846, April 20, Relating to Lien Creditors, etc., Pamphlet Laws, 411, 123, 125 
 1846, April 21, In Relation to Partition, Pamphlet Laws, 426, . 109, 114 
 
 1846, April 22, Relating to Appointments by Orphans' Court, Pamphlet 
 
 Laws, 483 43, 45 
 
 1847, March 13, Relating to Orphans' Court, Pamphlet Laws, 319, . . 109, 
 
 114, 121 
 
 1847, March 16, Relating to Orphans' Courts, Pamphlet Laws, 474, . 52, 
 
 123, 126 
 
 1848, January 27, Relating to Wills and Testaments, Pamphlet Laws, 
 
 16 102 
 
 1848, April 11, Relating to Married Women, Pamphlet Laws, 537, . 87, 
 
 91, 100, 102, 103, 100 
 
 1849, April 9, Relating to Sales by Orphans' Court, Pamphlet Laws, 527, 
 
 109, 114, 123, 126 
 1849, April 10, Jurisdiction of Court in Partition, Pamphlet Laws, 596, 
 
 109, 115, 121 
 
 1849, April 10, Validity of Deeds, etc.. Pamphlet Laws, 620, ... 71 
 
 1850, April 25, Relating to Partition, Pamphlet Laws, 509, 19,27,71, 109,115 
 
TABLE OF CONSTITUTIONAL AND STATUTE LAWS. XIX 
 
 PAGE 
 
 1851, April 3, As to Sales where there are Life Estates, Pamphlet Laws, 
 
 306, . 30, 48, 53, 56, 61 
 
 1851, April 8, Relating to Investments, Pamphlet Laws, 3G5, ... 95 
 1851, April 14, Exemption, Widows, etc.. Pamphlet Laws, 613, . . 77 
 
 1853, April 18, Relating to Sale and Conveyance of Real Estate, Pam- 
 
 phlet Laws, 503, . . . . 48,50,53,57,61,62,63,65 
 
 1854, February 20, Relative to Suits in Partition, Pamphlet Laws, 89, 
 
 109, 115, 117, 119 
 
 1854, April 13, Relative to Sale and Conveyance of Real Estate, Pam- 
 
 phlet Laws, 368 54, 95, 96, 124, 133 
 
 1855, April 12, Relating to Partition, Pamphlet Laws, 214, . . 109,116 
 1855, April 26, Devises to Corporations, Pamphlet Laws, 332, . . 103 
 1855, April 27, Amending certain defects. Pamphlet Laws, 369, . . 87, 
 
 91, 94, 110, 116, 124-134 
 
 1855, May 4, Duties of Husband and Wife, Pamphlet Laws, 430, . . 19, 
 
 23,27,39,87,91,103 
 
 1856, April 9, Investments, Pamphlet Laws, 275, . . . . 95, 90 
 1856, April 17, Suits in Partition, Pamphlet Laws, 386, . . 110, 116, 117 
 1856, April 21, Estate of Non-Resident Wards, Pamphlet Laws, 495, . 26 
 1856, April 22, Effect of Probate, Pamphlet Laws, 533, .... 103, 
 
 106, 116, 121, 140 
 1859, April 13, Refunding Bonds, Pamphlet Laws, 604, ... 57, 67 
 1859, April 22, Relative to Orphans' Court, Pamphlet Laws, 207, 54, 124, 134 
 1861, May 1, Deeds of Surviving Executors, etc., Pamphlet Laws, 431, 
 
 124, 134 
 1861, May 1, Relating to Executors and Trustees, Pamphlet Laws, 680, . 43 
 1863, February 14, Investments, Paraplilet Laws, 45, ... 95, 96 
 
 1863, April 11, Administrators to File Accounts, Pamphlet Laws, 341, 
 
 110, 110 
 
 1864, April 18, Supplement to Act of 1853, Pamphlet Laws, 462, . . 53, 
 
 54, 55, 57, 64, 124, 134 
 1864, April 27, Costs in Partition, Pamphlet Laws, 641, . . . 110, 116 
 
 1864, August 25, Appointment of Guardians, Pamphlet Laws, 1029, . 19, 
 
 27, 33 
 
 1865, March 23, Investments, Pamphlet Laws, 716 95, 96 
 
 1865, March 27, Pamphlet Laws, 45, 110, 117 
 
 1867, February 13, Pamphlet Laws, 160 110, 117 
 
 1867, February 20, Relative to Lunatics, etc., Pamphlet Laws, 30, . 110, 117 
 
 1867, March 23, Relative to Record of Deeds, under Act of 1853, Pamphlet 
 
 Laws, 43, 65, 124, 135 
 
 1868, April 14, As to Boundaries in Devises, Pamphlet Laws, 97, . . 104 
 
 1868, April 28, As to Proceeds of Sale in Partition, Pamphlet Laws, 105, 
 
 110,117 
 
 1869, February 18, Pamphlet Laws, 183, ..... .71 
 
 1869, February 26, Relative to Partition, Pamphlet Laws, 4, . . 110, 117 
 1869, March 18, Power of Guardians in Mercer County, Pamphlet Laws, 
 
 409, 48, 57, 64, 124, 135 
 
XX 
 
 TABLE OP CONSTITUTIONAL AND STATUTE LAWS. 
 
 PAGE 
 
 1869, March 30, Partition, Pamphlet Laws, 15, . . . HO, 117, 119 
 
 1870, February 26, Partition in Luzerne County, Pamphlet Laws, 256, 
 
 110, 118 
 
 1870, April 1, Eelative to Orplians' Court, Pamphlet Laws, 45, 
 
 1871, May 17, Supplement to Act of 1834, Pamphlet Laws, 269, 
 1871, May 23, Eelating to Orphans' Court, Pamphlet Laws, 274, 
 1871, May 24, Relating to Partition, Pamphlet Laws, 1088, . 
 1871, May 25, Eelating to Orphans' Court, Pamphlet Laws, 279, 
 
 1871, June 10, Pamphlet Laws, 386 
 
 1872, March 29, Investments, Pamphlet Laws, 31, . 
 1872, April 8, Eelating to Foreign Executors, Pamphlet Laws, 44, 
 
 1872, April 9, Wages Act, Pamphlet Laws, 47, ... 
 
 1873, April 2, Investments, Pamphlet Laws, 59, 
 
 1873, April 4, Investments, Pamphlet Laws, 59, . . . 
 
 1874, May 14, Suits in Partition, Pamphlet Laws, 156, . 
 1874, May 14, Estates of Decedents, Pamphlet Laws, 166, 
 1874, June 8, Supplement to Act of 1853, Pamphlet Laws, 277, 
 
 1876, April 8, Pamphlet Laws, 119, 
 
 1876, April 28, Validating Conveyances, Pamplilet Laws, 50, . 
 
 1876, May 8, Amending Act of 29 March, 1832, Pamphlet Laws, 133, 
 
 1876, May 8, Powers of Courts in Partition, Pamphlet Laws, 134, . 110, 119 
 
 1876, May 8, Enlarging Powers of Orphans' Courts, Pamphlet Laws, 140, 
 
 110, 119 
 1876, May 13, Confirming Titles in Partition, Pamphlet Laws, 172, . 
 
 1878, May 24, Relating to Cruelty to Children, Pamphlet Laws, 119, 
 
 1879, May 1, Eelating to Partition, Pamphlet Laws, 40. . 
 1879, June 4, Construction of Wills, Pamphlet Laws, 88, 
 1879, June 11, Neglect and Cruelty to Children, Pamphlet Laws, 
 
 19, . 
 
 1881, June 10, Enabling Mothers to Appoint Guardians, Pamphlet Laws, 
 
 96, ... . ... . . 18, : . 
 
 1881, June 10, Eelating to Executors and Administrators, Pamplilet 
 
 Laws, 106, 57, 67 
 
 1883, June 4, Eelating to Sales of Decedent's Estate, Pamphlet Laws, 65, 
 
 124, 136 
 
 1883, June 4, Permitting Illegitimates to Inherit from Each Other, Pam- 
 phlet Laws, 88, 87, 93, 94 
 
 1883, June 13, Amending the Wages Act, Pamphlet Laws, 116, . , 77 
 
 
 95 
 
 57 
 
 64 
 
 . no, 
 
 118 
 
 . 110, 
 
 118 
 
 
 27 
 
 95 
 
 ,96 
 
 
 95 
 
 
 50 
 
 
 77 
 
 95 
 
 ,96 
 
 , 
 
 95 
 
 . 110, 
 
 118 
 
 124, 
 
 135 
 
 . 124, 
 
 136 
 
 
 119 
 
 . 124, 
 
 136 
 
 , 95 
 
 , 96 
 
 111, 120 
 . 28 
 . 120 
 . 104 
 
 142, 
 
 23, 24, 28 
 
 40 
 
COMMENTAEIES 
 
 LAWS OF PENNSYLVANIA. 
 
 ET TATLOMr JACKSON. 
 
 BOOK THE FIRST. 
 
 CHAPTEE SEVENTEENTH. 
 
 OF GUAEDIAN AND WAED. 
 
 The only general private relation now remaining to 
 be discussed is that of guardian and ward, which bears 
 a very near resemblance to the last, and is plainly derived 
 out of it, the guardian being only a temporary parent, 
 that is, for so long a time as the ward is an infant, or 
 under age. 1 Blackstone's Commentaries, 460. A 
 guardian is one appointed by the wisdom and policy of 
 the law to take care of a person and his affairs, who, by 
 reason of his inability and want of understanding, is in- 
 capable of acting for his own interests. 3 Bacon's 
 Abridgment, 401.* 
 
 In examining this species of relationship, so far as it 
 relates to the guardianship of minors, we will proceed to 
 consider, as follows : 
 
 * The 6th section of the Act of 29th March, 1832, Pamphlet Laws, 191, pro- 
 vides that " No executor or administrator shall be admitted or appointed by 
 the Orphans' Court guardian of a minor having an interest in the estate nnder 
 the care of such executor or administrator : Provided, That nothing herein 
 contained shall be construed to extend to the case of a testamentary guardian.'' 
 — See, also, Eules of the Orphans' Court of Philadelphia of 1883. 
 
 2 (17 J 
 
18 OF GUAEDIAN AND WARD. ' 
 
 (1.) The different kinds of guardians. 
 
 (2.) The different ages of the minors for whom guard- 
 ians are appointed. 
 
 (3.) The privileges and disabilities of minors under 
 the control of guardians. 
 
 (4.) Of the appointment and discharge of guardians. 
 
 (5.) Of the powers, duties, and rights of guardians. 
 
 (6.) Of the surety on the guardian's bond. 
 
 (7.) Of the acquisition, mortgaging and sale of mi- 
 nors' property. 
 
 FIRST. 
 
 Section I. 
 
 Of the Different Kinds of Guardians. 
 
 I. Derived from the common law,* to wit : 
 
 (1.) Guardian by nature. Coke upon Littleton, 88. 
 (2.) Guardian by nurture. Ibid. 
 (3.) Guardian in socage. Ibid. 
 (4.) Guardian in chivalry ; abolished by statute 
 12 Charles II., chapter 24 ; Eoberts's Digest, 312. 
 
 II. Derived from statute law. 
 (1.) Testamentary guardian. 
 
 1st. Appointed by the father under statute 12 
 
 Charles II., chapter 24, and Act of 8th April, 
 
 1833, Pamphlet Laws, 245. 
 2d. Appointed by the mother under Act of 
 
 June 10, 1881, Pamphlet Laws, 96. 
 (2.) Guardians appointed by the Orphans' Court 
 
 direct, as follows : 
 1st. Under 5th and 7th sections of Act of 29th 
 
 * These guardianships were . engrafted on the common law either from the 
 civil law or from the feudal system. 
 
SEC. I.J DIFFERENT KINDS OF GUARDIANS. ] 9 
 
 March, 1832, Pamphlet Laws, 190— revis- 
 ing former acts; 
 
 2d. Under 44th section of Act of 25th Aj)ril, 
 1850, Pamphlet Laws, 576. 
 
 3d. Under 3d section of Act of 4th May, 1855, 
 Pamphlet Laws, 430. 
 
 4th. Under 1st section of Act of 25th August, 
 1864, Pamphlet Laws, 10^9. 
 
 5th. Under 7th section of Act of 11th June, 
 1879, Pamphlet Laws, 142. 
 III. Guardians appointed or accepted by the inherent 
 
 power of courts of law, and recognized by 
 
 statute law. 
 (1.) Guardian ad litem. 
 (2.) Guardian as prochein ami pro Tiac vice* 
 
 Note. — As the estate of a minor generally passes into 
 the control of his guardian from that of an executor or 
 administrator, it may interest the student to know the 
 definitions of these ofiicials, whose duties will be set forth 
 in the second book of these Commentaries, in chapter 
 32d. An executor is he to whom another man commits 
 by will the execution of that his last will and testament. 
 2 Blackstone's Commentaries, 503. An administrator is 
 a person authorized to manage and distribute the estate 
 of an intestate, or of a testator who has no executor. 1 
 Bouvier's Dictionary, 119. 
 
 I. Of guardians at common law. 
 
 (1.) The guardian by nature. 
 
 This guardianship, according to the strict language of 
 English law, only applied to the wardship of the heir 
 apparent. It seems that not only the father but also the 
 mother and every other ancestor may be guardians by 
 nature, though with considerable differences, such as de- 
 
 * A prochein ami is but a species of attorney, who may prosecute a right for 
 an infant but can do nothing to operate to his injury, and therefore cannot 
 release or compromise a suit prosecuted on behalf of a minor. Isaacs v. Boyd, 
 5 Porter, 388. 
 
20 OF GUARDIAN AND WARD. 
 
 note the superiority of the father's claim. The father 
 hath the first title to guardianship by nature, the mother 
 the second, and as to other ancestors, if the same infant 
 happens to be heir apparent to two, as to both a paternal 
 and a maternal grandfather, perhaps, in this equality of 
 rights, priority of possession of the infant's person may 
 decide the preference. 1 Thomas's Coke, 154. This 
 guardianship only lasts while the natural obligations of 
 maintenance, protection, and education continue, viz., to 
 the age of twenty-one years, and only extends to the 
 custody of the person of the child. Coke upon Littleton, 
 84 a ; The King v. Thorp, 5 Modern, 221. However, as 
 in Pennsylvania the heir apparent has but equal rights 
 with the other heirs, it may be said that the guardianship 
 by nature extends to all the heirs, particularly when, as 
 stated by Sir William Blackstone, the position " arises 
 out of the natural relation existing between parent 
 and child, and its duties and obligations are consecrated 
 by the natural affections of the parties." Moreover, when 
 there be a contest for the guardianship of the minor be- 
 tween the father and the mother, the courts will ignore 
 the English common law on the subject, and will assign 
 the guardianship to which either parent the court may 
 deem best adapted to fulfil such office. Commonwealth v. 
 Hart, 8 Weekly Notes of Cases, 166. The mother is the 
 guardian by nature if the child be illegitimate : Common- 
 wealth V. Fee, 6 Sergeant & Rawle, 255 ; McGunigal v. 
 Mong, 5 Barr, 269 ; and as a general rule the putative 
 father is entitled to its custody against all but the mother : 
 Commonwealth v. Anderson, 1 Ashmead, 55.* 
 
 (2.) Guardian by nurture. 
 
 As to this guardianship, it only occurs where the infant 
 is without any other guardian, and none can have it 
 
 except the father and the mother. 1 Thomas's Coke, 156. 
 
 fc^ 
 
 * But the guardian of the bastard is entitled in preference to the putative 
 father : Commonwealth v. Waleiser, 2 Legal Chronicle, 305. 
 
SEC. I.J DIPFEEENT KINDS OF GUARDIANS. 21 
 
 It extends no further than the custody and government 
 of the infant's person, and determines at fourteen in the 
 case of both males and females ; and in Pennsylvania if 
 there be any distinctive difference between it and guard- 
 ianship by nature, this is, that the guardianship by nature 
 extends to twenty-one years and that of nurture to four- 
 teen. The guardianship by nurture may be said to have 
 merged into that by nature in Pennsylvania, a^d the 
 same may be said of guardianship by socage, if our ten- 
 ures be allodial, as decided by Judge Woodward in the 
 case of Wallace v. Harmstad, 8 Wright, 498. See, also, 
 remarks on this subject in the introduction to Jackson 
 and Gross on the Law of Landlord and Tenant in Penn- 
 sylvania. Where there be a contest over the guardianship 
 of a minor, our courts will exercise supreme control as 
 representing the Commonwealth as parens patn(s. See, 
 on this subject, the cases of Commonwealth v. Gilkeson, 
 5 Clark's Cases, 32; Commonwealth v. Hart, 8 Weekly 
 Notes of Cases, 159 ; Pratt's Case, 1 Legal Gazette Re- 
 ports, 56 ; Commonwealth v. Demot, 7 Philadelphia, 
 624; Commonwealth v. Addicks, 5 Binney, 520; Com- 
 monwealth V. Smith, 1 Brewster, 547. 
 
 (3.) Guardian in socage. 
 
 This guardianship arises as follows : " In tenures in 
 socage, if the tenant have issue and die, his issue being 
 within the age of fourteen years, then the next friend of 
 that heir, to whom the inheritance cannot descend, shall 
 have the wardship of the land and of the heir until the 
 age of fourteen years, and such guardian is called guardian 
 in socage." Coke upon Littleton, 87 b. This guardian- 
 ship cannot exist in Pennsylvania, for the following 
 reasons : 
 
 1st. Because our tenures have been decided to be al- 
 lodial. See Jackson and Gross on the Law of Landlord 
 and Tenant in Pennsylvania, Introduction. 
 
22 OF GUARDIAN AND WAED. 
 
 2d. Because the heir at common law inherits no more 
 under the intestate act than the other children ; though 
 this is not conclusive, as there may be but one heir. 
 
 3d. Because, under the eleventh section of the Intestate 
 Act of 1833 (which provides as follows : 
 
 "And, whereas, it is the true intent and meaning of this act, that the heir 
 at common law shall not take in any case to the exclusion of other heirs and 
 kindred standing in the same degree of consanguinity with him, to the in- 
 testate, it is hereby declared that in every case which may arise, not expressly 
 provided for by this act, the real as well as the personal estate of an intestate 
 shall pass to and be enjoyed by the next of kin of such intestate, without 
 regard to the ancestor or other relative from whoiii such estate may have come ") 
 
 there is no next of kin to whom the inheritance cannot 
 descend. But, in regard to this relation, see Graham's 
 Appeal, 1 Dallas, 136, decided in 1785, when the heir 
 at common law was entitled to a double portion in the 
 settlement of the estate of an intestate father ; also, Ar- 
 thur's Appeal, 1 Grant, 67, which was decided subsequent 
 to the intestate act of 1833. 
 
 (4.) Guardian in chivalry. 
 
 As this guardianship was extinguished by statute of 1 2 
 Charles II., chapter 24, Roberts's Digest, 312, enacted 
 A.D. 1660, it never did exist in this commonwealth ; 
 therefore, there need nothing be said of it more than to 
 sketch its incidents. 
 
 " This wardship consisted in having the custody of the 
 body and lands of such heir, without any account of the 
 profits, till the age of twenty-one in males and sixteen in 
 females. For the law supposed the heir male unable to 
 perform knight service till twenty-one ; but as for the fe- 
 male, she was supposed capable at fourteen to marry, and 
 then her husband might perform the service. The lord, 
 therefore, had no wardship, if at the death of the ancestor 
 the heir male was of the full age of twenty-one, or the heir 
 female of fourteen ; yet if she was then under fourteen, and 
 
SEC. I.J DIPFEEENT KINDS OF GUABDIANS. 23 
 
 the lord once had her in ward, he might keep her so till 
 sixteen, by virtue of the Statute of Westm., 3 Edward I., c. 
 22, the two additional years being given by the legislature 
 for no other reason but merely to benefit the lord." See 
 2 Blackstone's Commentaries, 67. 
 
 The guardianship, even had it not been abolished by 
 statute, would have become extinct in Pennsylvania as 
 the result of our intestate laws causing the inheritance to 
 fall equally on all the children, share and share alike. 
 
 After reviewing the foregoing mentioned common law 
 kinds of guardianship, I think that we may conclude the 
 only one now extant in Pennsylvania is that of guardian 
 by nature extended to all the legitimate children and not 
 confined to the heir apparent, whose legal existence no 
 longer survives under the intestate laws, and we may say 
 this guardianship exists from the relative position of 
 parent and child, even did it not exist at common law. 
 
 The rights of the father and mother are, however, 
 qualified by the third section of the Act of May 4, 1855, 
 Pamphlet Laws, 430, which declares that when the father, 
 from drunkenness, profligacy, or other cause, refuses or 
 neglects to provide for his child or children, the mother 
 shall exercise the parental rights and duties, provided 
 that she " afford to them a good example and properly 
 educate and maintain them according to her ability," and 
 by the Act of June 11, 1879, Pamphlet Laws, 144, "to 
 protect children from neglect and cruelty," etc., which, 
 after prohibiting the cruel treatment of minors or the 
 employment of them in certain vocations, retaining them 
 in brothels, hiring them for purposes of mendicity, em- 
 ploying them in liquor or dancing saloons, or certain of 
 them in mines, provides in section 7 that 
 
 "Whenever any person having the custody or control of any minor shall be 
 convicted of a violation of any of the provisions of this act, it shall be lawful 
 for any person to apply to the Orphans' Court of the county wherein the offence 
 
24 OF GUAEDIAN AND WARD. 
 
 has been committed, for the appointment of a proper guardian for the person 
 of such minor ; and the said court may in its discretion make such appoint- 
 ment, having due regard in the selection of such guardian to the religious per- 
 suasion of the parent or former guardian, or it may place such child in an 
 asylum or home for children, with the powers of a guardian of the person as 
 may be most expedient," etc. 
 
 The act further provides for the adoption of children 
 deserted by their parents, and provides for the punish- 
 ment of parents or guardians who have committed a 
 breach against the provisions of the act. 
 
 In section 12 it provides that 
 
 " Whenever the parents or proper guardians of any infant unable to support 
 itself, have been convicted of any of the offences enumerated in this act, or are 
 dead or cannot be found, and there is no other person legally responsible for 
 the maintenance and support of such child, willing to assume such support, or 
 to be found within the county, any magistrate or court of record of the county 
 in which such child may be found, may commit such child to the care and cus- 
 tody of the guardians of the poor of the said county, but nothing herein contained 
 shall exempt any person from the duty of maintaining and supporting such 
 child as now imposed by law." 
 
 In questions relating to the custody of minor children 
 after abandonment by the parents, the following prin- 
 ciples of general application have been acted on by the 
 Court of Quarter Sessions in Philadelphia. 
 
 1st. A parent may relinquish the care, custody, and 
 control of his child, and after having done so, his right 
 to claim it is gone and will not be enforced by the court. 
 
 2d. Such relinquishment by the parent of a child may 
 be by deed or other instrument in writing ; or it may be 
 by parol, or by abandonment ; by turning it out of the 
 house and permitting it to go upon its own resources ; and 
 such relinquishment or abandonment may be presumed 
 from the acts of the parents. 
 
 3d. When the rights of the parents are not c]ear, the 
 court will regard the interests of the child, and when of 
 sufficient age its wishes will be consulted. See Common- 
 wealth V. Dougherty, 1 Legal Gazette Reports, 64, and 
 
SEC. I.] DIFFERENT KINDS OF GUARDIANS. 25 
 
 authorities therein cited ; Commonwealth v. St. John's 
 Orphan Asylum, 9 Philadelphia, 572. 
 
 II. Of guardians by statute law in Pennsylvania. 
 
 These may be divided into two classes : 
 
 (1.) The one " testamentary guardians " are those 
 appointed by the parent in accordance with the authority 
 granted by certain statutes, viz.:* 
 
 1st. By the father, under statute of 12 Charles II., 
 chapter 24, s. 8, Roberts's Digest, 312; and Act of 8th 
 April, 1833, Pamphlet Laws, 249, which latter provides 
 that 
 
 " Every person competent to make a will as aforesaid, being the father of 
 any minor child unmarried, may devise the custody of such child during his 
 or her minority, or for any shorter period." 
 
 Those competent to make a will as aforesaid under the 
 first and third sections of the act are those of sound mind 
 (married women excepted) who are over twenty-one years 
 of age at the time of making their wills. Though the 
 " custody " of the child is referred to in our act, the un- 
 questioned practice is to follow the English provision, 
 in statute 12 Charles II., chapter 24, which is that the 
 testamentary guardian shall have also the custody of the 
 infant's estate both real and personal. 
 
 2d. By the mother, under Act of June 10, 1881, 
 Pamphlet Laws, 96, which provides : 
 
 " Section 1. That every mother of an unmarried minor child, who shall 
 leave to such child an estate, either in lands or chattels, may appoint a testa- 
 mentary guardian for such child : Provided, That the father be not living, or, 
 being deceased, he has not appointed such guardian. 
 
 "Section 2. Every mother, who, by her deceased husband's will, has been 
 appointed testamentary guardian of her children, may by her last will appoint 
 a successor in such guardianship."! 
 
 * By the common law of England none could appoint a guardian. Ratcliffe 
 Case, 3 Coke, 37. 
 t See further as to testamentary guardian Koberts's Digest, 2d edition, 325. 
 
26 OF GUAEDIAN AND WARD. 
 
 (2.) The other "guardians appointed by the Orphans' 
 Court" under the provisions of our statute law. 
 
 1st. Under the provisions of the Act of 29th March, 
 1832, Pamphlet Laws, 191, which provides as follows : 
 
 " Section 5. The Orphans' Court of each county shall have the care of the 
 persons of minors resident within such county, and of their estates, and shall 
 have power to admit such minors when and as often as there shall be occasion 
 to make choice of guardians, and to appoint guardians for such as they shall 
 judge too young or otherwise incompetent to make choice for themselves : Pro- 
 vided, That persons of the same religious persuasion as the parents of the minors 
 shall in all cases be preferred by the court in their appointment." 
 
 The court has not jurisdiction of a petition for the 
 appointment of a guardian while there is a testamentary 
 guardian who has neither resigned nor been removed, 
 and its appointment under such circumstances would be a 
 nullity; there could not be a double set of guardians acting 
 by color of authority, but in opposite rights and deriving 
 title from inconsistent sources, for to hold the acts of the 
 one to be good in the first instance, and those of the other 
 to be good altogether, would lead to collision and irre- 
 vocable confusion. Robinson v. Zollinger, 9 Watts, 169. 
 A second appointment of a guardian while a former one 
 remains unrevoked is void. Estler v. Estler, 1 Browne, 
 322 ; see, also, Vanartsdalen v. Same, 2 Harris, 384. 
 
 The Orphans' Court may at its discretion appoint 
 foreign guardians, under the 7th section of the Act of 
 29th March, 1832, Pamphlet Laws, 191, as follows : 
 
 " No appointment of a guardian, made or granted by any authority out of this 
 State, shall authorize the person so appointed to iriterfere with the estate, or 
 control the person of a minor in this State : Provided, That such foreign guardian 
 may, at the discretion of the court, be appointed by the Orphans' Court, having 
 jurisdiction, on giving security for the due performance of his trust."* 
 
 And the Act of 21st April, 1856, Pamphlet Laws, 
 495, provides in the first section that 
 
 * This section was amended by the 3d section of the Act of 14th April, 1S35, 
 P. L,, 275— the 3d section of the Act of 16th June, 1836, P. L., 682 ; see also 
 Act 17th May, 1871, P. L., 269, infra. 
 
SEO. I.J DIFFERENT KINDS OF GUAEDIANS. 27 
 
 " In all cases where any guardian and his ward may both be non-residents 
 of this State, and such ward may be entitled to property of any description in 
 this State, such guardian, on producing satisfactory proof to the Orphans' Court 
 of the proper count)', by certificates, according to the Acts of Congress in such 
 cases, that he has given bond and security in the State in which he and his 
 ward reside, in double the amount of the value of the property, as guardian, 
 and it is found that a removal of the property will not conflict with the terms 
 or limitations attending the right by which the ward owns the same, then any 
 such guardian may demand or sue for and remove any such property to the 
 place of residence of himself and ward." 
 
 The 2d section of the act provides that when such 
 non-resident guardian produces an exemplification of his 
 appointment authenticated as provided by the act, the 
 domestic guardian may be discharged. 
 
 The Act of 25th May, 1871, Pamphlet Laws, 279, 
 provides how the Orphans' Court may authorize an ex- 
 ecutor, administrator, or guardian in the State to make 
 payment to guardians appointed to minors outside of the 
 State. 
 
 2d. Under the provisions of the 44th section of the 
 Act of 25th April, 1850, Pamphlet Laws, 576, as follows : 
 
 " The Orphans' Court of each county in this commonwealth shall have power 
 to appoint guardians of the estates of minors residing out of the commonwealth, 
 in all cases where such minors are possessed of estates lying within the juris- 
 diction of said court, upon the petition of the minors, or any of their relatives 
 or friends, or any person interested in such estates, without requiring the said 
 minors to appear in court to make choice of such guardians." 
 
 3d. Under the provisions of the 3d section of the Act 
 of 4th May, 1855, Pamphlet Laws, 430, when the father 
 neglects or refuses to provide for his children and the 
 mother is dead or of unsuitable character to be intrusted 
 with the parental rights and duties, the " proper court " 
 may appoint a guardian of such children who shall per- 
 form the duties of the parents and apply the earnings of 
 the children for their maintenance and education. 
 
 4th. Under the provisions of the 1st section of the 
 Act of 25th August, 1864, Pamphlet Laws, 1029, as 
 follows: 
 
28 OF GUARDIAN AND WARD. 
 
 " The Orphans' Court, of each county, shall have power to appoint guardians 
 of the persons and estates of minors, who may be absent in the service of the 
 United States, or who may be physically unable to appear and choose for them- 
 selves, or who may be so far distant from the seat of justice of the county, as to 
 make it unnecessarily expensive for them to appear, upon the petition of the 
 minors, without requiring the minors to appear in court, to make choice : Pro- 
 vided, That when the appointment shall be made on petition of relatives or 
 friends, the minor may subsequently appear and choose his guardian, as in case 
 of one attaining the age of fourteen. 
 
 A guardian lias in some cases no power to change the 
 domicile of his ward : School Directors v. James, 2 Watts 
 & Sergeant, 568. 
 
 5th. Under the provisions of the 7th section of the 
 Act of 11th June, 1879, Pamphlet Laws, 142, entitled, 
 " Au act to protect children from neglect and cruelty, 
 and relating to their employment, protection, and adop- 
 tion," as follows: 
 
 " Whenever any person having the custody or control of any minor, shall be 
 convicted of a violation of any of the provisions of this act, it shall be lawful 
 for any person to apply to the Orphans' Court of the county wherein the offence 
 has been committed for the appointment of a proper guardian for the person 
 of such minor ; and the said court may, in its discretion, make such appointment, 
 having due regard in the selection of a guardian to the religious persuasion of 
 the parents or former guardians, or it may place such child in an asylum or 
 home for children, with the powers of a guardian of the person as may be most 
 expedient: Provided, however. That the children of Roman Catholic parents 
 shall be placed in asylums under the control and care of that denomination ; 
 and the said court may order the parent to pay such a reasonable sum toward 
 the maintenance of such child, and at such times and in such amounts, as the 
 said court may see fit ; and such courts may at any subsequent time, upon being 
 satisfied that the parent has become a fit person to resume the custody of said 
 minor, and upon reasonable security, to be fixed by the court, being given for 
 the faithful observance of the provisions of this act, remand such minor to the 
 custody of such parent, subject, nevertheless, to the obligation of any indentures 
 or legal engagements already entered into on behalf of said minor by his or 
 her guardian." 
 
 This act repealed the Act of 24th May, 1878, Pam- 
 phlet Laws, 119. 
 
 III. Of guardians ad litem, or guardians appointed by 
 the inherent powers of any of our courts at law and 
 recognized by our statute law. 
 
SEC. I.J DIFFERENT KINDS OF GUARDIANS. 29 
 
 (1.) The guardian ad litem. 
 
 All courts of justice have a power to assign a guardian 
 to an infant, to sue or defend actions if the infant comes 
 into court and desires it, or a judge at his chambers, at 
 the desire of the infant, may assign a person named by 
 him as guardian. Fitzherbert's Natura Brevium, 27. 
 
 The power to appoint such guardian ad litem was given 
 specifically to the Orphans' Court by the 7th section of 
 the Act of 27th March, 1713, 1 Smith's Laws, 81, as 
 follows: 
 
 " That the justices of the said Orphans' Court in the said respective counties 
 shall, by virtue of this act, have full power and a\ithority to exercise all the 
 powers, authorities, and jurisdictions, granted or mentioned, or intended to be 
 granted to the Orphans' .Court, in and by a law of this province, entitled. An 
 act for better settling of intestates' estates, and to do, execute, and perform all such 
 matters and things as the Orphans' Court, in the said act, or in any other act or 
 law of this province mentioned, might or ought to have done or performed, 
 according to the true intent and meaning thereof; with power also to admit 
 orphans or minors, when and as often as there may be occasion to make choice 
 of guardians or tutors, and to appoint guardians, next friends, or tutors, over 
 such as the said court shall judge too young or incapable, according to the rules 
 of the common law, to make choice themselves ; and at the instance and re- 
 quest of the said executors, administrators, guardians, or tutors, to order and 
 direct the binding or putting out of minors apprentices to trades, husbandry, or 
 other employments as shall be thought fit. And that all guardians and prochein 
 amis which shall be appointed by any of the said Orphans' Courts shall be 
 allowed and received, without further admittance, to prosecute and defend all 
 actions and suits relating to the orphans or minors, as the case may require, in 
 any court or courts of this province." 
 
 And is reiterated in the 53d section of the Act of 29th 
 March, 1832, Pamphlet Laws, 207; and in real actions 
 where the minor is defendant, the Act of 13th June, 
 1836, Pamphlet Laws, 587, in sections 83 and 84, pro- 
 vides as follows : 
 
 " But in every case in which any such defendant shall not have a guardian 
 as aforesaid, it shall be the duty of the plaintiff upon or after the day on which 
 he might take judgment by default against such minor, if he were of full age, 
 and before any plea pleaded, or rule taken in the action, to make application 
 to the court in which such action shall be brought, for the appointment of a 
 guardian of such minor in that cause, if such minor shall not have appeared 
 
30 OF GUARDIAN AND WARD. 
 
 by his guardian as aforesaid, and such appointment being made, he shall give 
 notice thereof to the person appointed, 
 
 "The court which shall appoint a guardian ad litem of a minor, defendant in 
 any cause, shall have power to require security of such guardians for the faithful 
 execution of the trust, and in all cases, whether such security shall be given or not, 
 such guardians shall be responsible to their wards, in like manner as guardiang 
 appointed by the Orphans' Court, and they shall also be entitled to a reasonable 
 compensation for their services." 
 
 Moreover, when it is believed to be to the interest of 
 a minor to have his ;real estate sold and there be no 
 guardian of such in the county in which the land lies, 
 the Act of 3d April, 1851, Pamphlet Laws, 306, in section 
 4, provides for a guardian for such minor as follows : 
 
 " Every application for the sale of lands under any of the provisions hereof 
 shall be in the form of a petition, and shall set forth a sufBcient description of 
 such lands and the names of the persons interested in the same ; and where 
 any of them shall be minors, having no guardian residing in the county in 
 ■which the lands lie, it shall be the duty of the court to appoint some suitable 
 person or persons to guard the interests of said minors : Provided, That if such 
 minors shall appear upon the day of hearing before meptioned, by guardian, 
 prochein ami, or next of kin, such appointment shall be null and void." 
 
 It is seen by the foregoing that no guardian ad litem 
 can be appointed by any court when there is a guardian 
 already in existence, unless that guardian be absent from 
 the county wherein such lands lie, in cases of application 
 for the sale of the lands. See Mercer v. Watson, 1 Watts, 
 350. Moreover, no court has authority to appoint a 
 guardian ad litem without first giving notice to the minor 
 or to his next friend as provided by Act of 13th June, 
 1836, section 83, Pamphlet Laws, 587, and Act of 29th 
 March, 1832, section 53, Pamphlet Laws, 207. And a 
 judgment against the estate of a ward without such notice 
 is void. Swain v. Fidelity Insurance Company, 4 P. F. 
 Smith, 455.* Judge Gibson, in the case of Turner v. 
 Patridge, 3 Penrose & Watts, 173, defines the difference 
 between a prochein ami and a guardian ad litem to be 
 
 * Graham's Estate, 14 Weekly Notes, 31. 
 
SEC. I.] DIFFERENT KINDS OP GUARDIANS. 31 
 
 that " the former is the curator of an infant plaintiff and 
 the latter of an infant defendant." 
 
 (2.) Guardian as by prochein ami, who is a guardian 
 accepted by the courts in cases where the minor is 
 plaintiff. 
 
 At common law infants could neither sue nor defend 
 except by guardian. Fitzherbert's Natura Brevium, 27. 
 This law, however, might act to the prejudice of the minor 
 by the refusal or neglect of the guardian to act, and to 
 remedy this the statute of 13 Edward I., chapter 15, 
 Roberts's Digest, 317, in force in Pennsylvania, was 
 passed, by which it was provided that 
 
 " In every case wherein such, as be within age may sue, it is ordained, That 
 if such within age be eloigned so that they cannot sue personally, their next 
 friends shall be admitted to sue for them." 
 
 Although the word " eloigned " be in the statute, yet 
 by construction this circumstance is not deemed requisite 
 and the prochein ami may sue whether the minor be 
 eloigned or not. 2 Institutes, 390. And it has been held 
 that it was not requisite that the prochein ami should 
 be appointed by the court. See Archer v. Frowde, 1 
 Strange, 304. But Judge Gibson, in the case of Turner 
 V. Patridge, 3 Penrose & Watts, 172, held that a pro- 
 chein ami is recognized by the laws of Pennsylvania 
 and in our practice, but never as having the power of a 
 trustee and guardian. It was held in Pleft v. McGill, 
 
 3 Barr, 264, that an infant might bring an action of 
 ejectment in the name of his next friend. 
 
 An infant (defendant) cannot appear to an action by 
 her next friend. Swain v. Fidelity Insurance Company, 
 
 4 P. F. Smith, 455. 
 
 Infants are, by the rules of the common law, divided 
 into two classes, those under the age of fourteen and those 
 of that age and upwards, this being considered the age 
 of discretion. They, if they have no testamentary 
 
32 OF GUAEDIAN AND WAED. 
 
 guardians, have a right to come into the Orphans' Court 
 of the county of which they are resident,* and have 
 guardians appointed to take care of their persons and 
 estates. If under fourteen, they petition the court by 
 some friend or relative, and upon such petition the court 
 is authorized to appoint one or more suitable persons, as 
 before said. But when the minor is of the age of fourteen 
 or upwards he comes into court personally and has his 
 petition presented and selects for himself the person 
 whom he wishes to be his guardian, and the court ap- 
 points. Arthur's Appeal, 1 Grant, 57. 
 
 The court acts in two cases : 
 
 1st. In appointing for those who are incompetent to 
 make a choice, from being under the age of fourteen, or 
 imbecile. 
 
 2d. In confirming the choice, if it be a proper one, of 
 hose who are competent to make a choice, being minors 
 over the age of fourteen. 
 
 When the court appoints a guardian for a minor under 
 the age of fourteen, the minor, when he arrives at that 
 age, may appear in court and choose another guardian ; 
 but if no such choice be made, the authority of the 
 guardian first appointed will continue until the infant 
 arrives at the age of twenty-one years. Lee's Appeal, 3 
 Casey, 229. 
 
 The Supreme Court will not review the discretion ex- 
 ercised by the Orphans' Court in the appointment of a 
 guardian. McCann's Appeal, 13 Wright, 304 ; but see 
 Vanartsdalen v. Same, 2 Harris, 384. Moreover, the 
 father if alive ought to be notified (if within the jurisdic- 
 tion) of the proceedings for the appointment of a guar- 
 dian for his child. Senseman's Appeal, 9 Harris, 331. 
 
 * The words " of the county " are confined to the county in which the minor 
 resides. Packer's Estate, 1 Legal Gazette, 5 ; Balston's Estate, 3 Weekly Notes 
 of Cases, 392. 
 
SEC. II.] DIFFERENT AGES OF MINORS, 33 
 
 SECOND. ' 
 
 Section II. 
 
 Of the Different Ages of the Minors for whom 
 Guardians are appointed. 
 
 Let us next consider the ward or person within age 
 for whose assistance and support these guardians are 
 constituted by law, or who it is that is said to be within 
 age. The ages of male and female are different for dif- 
 ferent purposes. 1 Blackstone's Commentaries, 463. 
 
 We have in Pennsylvania, in relation to minors, no 
 legislative acts regnilating this subject excepting those 
 of 25th August, 1864, Pamphlet Laws, 1029, and 29th 
 March, 1832, Pamphlet Laws, 208, but in Lee's Appeal, 
 3 Casey, 232, it is said by the court that " the practice 
 has prevailed to appoint guardians for minors under 
 the age of fourteen, and to admit those over that age to 
 choose for themselves, subject of course to the supervision 
 of the OrjDhans' Court, for the purpose." 
 
 The law relative to age in England in the time of Sir 
 William Blackstone was as follows : 
 
 As to the male. 
 
 (1.) At 12 years of age he might take the oath of al- 
 legiance. 
 
 (2.) At 14 years of age had arrived at years of dis- 
 cretion, and therefore might consent or disagree to mar- 
 riage, might choose his guardian, and, if his discretion 
 be actually proved, might make his testament of his per- 
 sonal estate. 
 
 (3.) At 17 he might be an executor. 
 
 (4.) At 21 is at his own disposal, and may alien his 
 lands for goods and chattels. 
 
 As to the female. 
 
 3 
 
34 
 
 or GUAEDIAN AND WAED. 
 
 (1.) At 7 years of age she might be betrothed or given 
 
 in marriage. 
 
 (2.) At 9 years of age was entitled to dower. 
 
 (3.) At 12 was at years of maturity, and might con- 
 sent or disagree to marriage, and if proved to have suffi- 
 cient discretion might bequeath her personal estate. 
 
 (4.) At 14 was at years of legal discretion and might 
 choose a guardian. 
 
 (5.) At 17 might be executrix. 
 
 (6.) At 21 might dispose of herself and of her lands. 
 
 So that full age in male and female is twenty-one years, 
 which age is completed on the day preceding the anni- 
 versary of a person's birth, who until that time is an 
 infant and so styled in law. 1 Sharswood's Blackstone's 
 Commentaries, 463, note. 
 
 The English law on this subject is in force so far as it 
 is applicable to our circumstances. See Act 28th Jan- 
 uary, 1777, 1 Smith's Laws, 429. 
 
 We have seen that by our laws in regard to apprentice- 
 ship the term of service of a female expires at the age 
 of eighteen and of a male at twenty-one. See Act 29th 
 September, 1770, 1 Smith's Laws, 309. 
 
 In case of the marriage of a female . infant ward, the 
 duties of her guardian as regards the custody of the 
 person cease, being transferred by operation of law to her 
 husband. Cummings's Appeal, 1 Jones, 272. But the 
 marriage of an infant male ward does not terminate the 
 guardianship so far as relates to the custody of the ward's 
 estate. Reeve's Domestic Relations, 328. 
 
SEC. III.] PRIVILEGES AND DISABILITIES OF MINORS. 35 
 
 THIED. 
 
 Section III. 
 
 Of the Privileges and Disabilities of Ifinors under the 
 Control of Guardians. 
 
 Infants have various privileges and vaj-ious disabilities ; 
 but their very disabilities are privileges, in order to se- 
 cure them from hurting themselves by their own improv- 
 ident acts. 1 Blackstone's Commentaries, 464. 
 
 If an infant be sued he must appear to defend by his 
 guardian, and if he have none the court will appoint a 
 guardian ad litem to appear for him and defend his cause. 
 
 If he wish to institute a suit, and have no guardian, 
 he may bring the suit in the name of a next friend, pro- 
 chein ami, who is to him rather an attorney than a guar- 
 dian. Isaacs V. Boyd, 5 Porter, 358. 
 
 He is, liable, however, for his personal torts. McGhee 
 V. Williams, 31 Legal Intelligencer, 37. He is liable in 
 trover. Vasse v. Smith, 6 Cranch, 226. See also, in re- 
 gard to further liabilities, Towne v. Wiley, 23 Vermont, 
 355. 
 
 With regard to estates and civil property an infant 
 hath many privileges, thus — 
 
 (1.) The deed of an infant /erne covert regularly ac- 
 knowledged is void. Shrader v. Decker, 9 Barr, 14. 
 
 (2.) An infant cannot bind himself for a loan of money 
 to make repairs to his estate. West v. Gregg, 1 Grant, 
 53. 
 
 (3.) A warrant of attorney to confess judgment given 
 by an infant is void. Knox v. Flack, 10 Harris, 337 ; 
 Small V. Murphy, 1 Luzerne L. E., 332. 
 
36 OF GUARDIAN AND WARD. 
 
 (4.) A judgment confessed by an infant is void. 
 Etter V, Curtis, 7 Watts & Sergeant, 170. 
 
 (5.) A contract as surety entered into by an infant is 
 void. Curtin v. Patton, 11 Sergeant & Rawle, 305. 
 
 It is generally true that an infant can neither alien 
 his lands, nor make a valid deed of his estate, nor any 
 manner of contract that will bind him, but to this rule 
 there are some exceptions. 1 Blackstone's Commentaries, 
 465. 
 
 (1.) He may in Pennsylvania enter into the bonds of 
 matrimony. 
 
 (2.) He may at the age of fourteen choose a guardian. 
 
 (8.) He may bind himself for necessaries. Common- 
 wealth V. Hantz, 2 Penrose & Watts, 333 ; Hughes v. 
 Gallans, 3 Legal Intelligencer, 349. But not when he 
 has a guardian or father to supply his wants. Guthrie v. 
 Murphy, 4 Watts, 80. See also Rundel v. Keeler, 7 
 Watts, 239 ; Watson v. Hensel, Ibid., 344 ; Johnson v. 
 Lines, 6 Watts & Sergeant, 80 ; Mohney v. Evans, 1 P. 
 F. Smith, 80. 
 
 (4.) He may appear to a suit by a guardian. Moore 
 V. McEwen, 5 Sergeant & Eawle, 373. But not by an 
 attorney. Ibid. 
 
 (5.) He may bring suit in court by a prochein ami. 
 Heft & Hix V. McGill, 3 Barr, 256. 
 
 The contracts made by infants are generally voidable 
 and not void— ^they bind the party the infant contracts 
 with, but not necessarily the infant. 
 
 If they are void, the opposite party would not be bound 
 by them, but being only voidable, at the option of the 
 infant when he becomes of age, the one party is abso- 
 lutely bound and the other is not, contrary to the general 
 principles of law. Smith v. Bowen, 1 Modern Reports, 
 25 ; Holt V. Clarincien, Strange, 937 ; Brown v. Caldwell, 
 10 Sergeant & Rawle, 114. And no one but the infant 
 
SEC. III.] PRIVILEGES AND DISABILITIES OF MINORS. 37 
 
 himself, or his legal representatives, can avoid his con- 
 tracts. Vanbramer v. Cooper, 2 Johnson's Reports, 279 ; 
 Jackson v. Todd, 6 Ibid., 257 ; Oliver v. Houdlet, 13 
 Massachusetts Reports, 237. And except where the 
 nature of the case proves it, to avoid an act, there should 
 be some unequivocal act of assent. Curtin v. Patton, 11 
 Sergeant & Rawle, 305. 
 
 It is not well settled what acts are absolutely void and 
 what only voidable, the general rule being that when it 
 may be for the benefit of the infant it shall not be con- 
 sidered void. Whitney v. Dulch, 14 Massachusetts Re- 
 ports, 457. 
 
 When it is manifested to the court that a contract is 
 to the prejudice of the infant, it may be pronounced void ; 
 but when it is uncertain, and depends upon circumstances, 
 whether it will turn out to be the one way or the other, 
 the infant is entitled to the benefit of the chance, and in 
 such cases it must be considered only as voidable. See 
 United States v. Bainbridge, Mason's Reports, 82 ; McGaw 
 V. Marshall, 7 Humphrey, 121. 
 
 The exemption from liabilities on contracts does not 
 extend to cases arising ex delicto, after the infant has 
 arrived at the years of discretion. Jennings v. Randall, 
 8 Term Reports, 335. Or even at the age of seven. 
 McGhee v. Williams, 31 Legal Intelligencer, 37. 
 
 The reason is apparent ; because in cases of contract, the 
 act proceeds from the voluntary assent of the opposite 
 party ; if he had not assented to the contract, it could 
 never have been made ; but in cases of torts and trespass, 
 the infant is the sole aggressor, and has no one with whom 
 he can share the responsibility. In such cases, the policy 
 of the law and safety of society require, that if he have 
 the means, he shall make compensation for wanton inju- 
 ries done by him. All who deal with an infant are bound 
 
38 OP GUAEDIAN AND WAED. 
 
 to know the fact of his infancy. Euchizky v. De Haven, 
 1 Outerbridge,. 202. 
 
 The remedy of a ward against his guardian is by sum- 
 mary proceedings in the Orphans' Court, by citation and 
 attachment to compel a settlement of his accounts. And 
 after the termination of the wardship, by action of debt 
 or assumpsit in the usual form for the balance found, due 
 upon such settlement. When a guardian has been re- 
 moved the Orphans' Court may compel him to pay over 
 to his successor all his ward's estate. 
 
 The Act of 27th March, 1833, Pamphlet Laws, 99, pro- 
 vides that : 
 
 " In all cases where the guardian of a minor is or shall be a party to a suit, 
 either before a justice of the peace or in the Common Pleas, such guardian 
 shall be allowed to appeal from the judgment of such justice, and from the award 
 of arbitrators, without making the usual affidavit, and without giving surety, 
 or paying costs." 
 
 FOUETH. 
 
 Section IV- 
 Of the Appointment and Discharge of Guardians. 
 
 (1.) As to the power to appoint vested in the father of 
 the minor. 
 
 The statute of 12 Charles II., chapter 24, Eoberts's 
 Digest, 312, provided that any father, whether an infant or 
 of full age, might, by deed executed in his lifetime, or by 
 his last will and testament, dispose of the custody and 
 tuition of his child either born or unborn, to any person or 
 persons in possession or remainder other than popish recu- 
 sants, such custody to last till the child attained the age 
 of twenty-one, or for any less period, and to comprehend. 
 
SEC. IV.] APPOINTMENT AND DISCHARGE OF GUARDIANS. 39 
 
 meantime, the entire management of his estate, both real 
 and personal. The Act of 8 April, 1833, Pamphlet Laws, 
 249, provides that all persons of sound mind (married 
 women are excepted) may dispose by will of their estate, also 
 that a married woman may dispose of her estate by will, 
 and also that no will shall be effectual unless the testator 
 be of the age of twenty-one years ; and in section 4, that : 
 
 "Every person competent to make a will as aforesaid, being the father of any 
 minor child unmarried, may devise the custody of such child during his or her 
 minority, or for any shorter period." 
 
 But this power of appointment by the father is taken 
 away by the Act of 4 May, 1855, Pamphlet Laws, 430, 
 when he has for one year or upwards prior to his death, 
 from drunkenness, profligacy, or other cause, neglected or 
 refused to provide for his child or children. 
 
 An appointment by a guardian appointed by the father 
 is void, for the guardianship is a personal trust and is 
 not assignable. Bedell v. Constable, Vaughan, 179; 
 Mellish V. Da Costa, 2 Atkyns, 15. 
 
 (2.) As to the power to appoint vested in the mother 
 of the minor. 
 
 Prior to 1881, the mother had no legal right to appoint 
 a guardian for her minor children. See Dar mody 's Estate 
 6 Weekly Notes of Cases, 487 ; Colehower's Estate, 5 
 Weekly Notes of Cases, 343. But when a mother left an 
 estate to her children and appointed an executor to act 
 also as guardian to the minors, the Orphans' Court decided 
 not to regard such an appointment as a nullity, regarding 
 the word guardian in the signification of trustee. Cole- 
 hower's Estate, 5 Weekly Notes of Cases, 343. 
 
 In the case of Vanartsdalen v. Vanartsdalen, 2 Harris, 
 884, a grandfather devised an estate to his grandchildren, 
 under the condition that certain persons should be their 
 guardians, though the father of the children was living 
 
40 OF GUARDIAN AND WAED. 
 
 at the time of the making of the will. The executors and 
 guardians named, entered into their office, but subsequently 
 the Orphans' Court appointed another person guardian, 
 treating the appointment of the grandfather, as null and 
 void ; but the Supreme Court in reversing the decree of 
 the Orphans' Court remarked as follows : 
 
 "It is plain the testator does not mean to interfere with the natural right of 
 the father to the custody and care of his children. All that is intended is to 
 commit the management of the estate to his executors, who are appointed guar- 
 dians of the children. It is of no sort of consequence that he designates them 
 as guardians, rather than as trustees or curators of the estate for the benefit of 
 the infants." 
 
 However, the Act of 10 June, 1881, Pamphlet Laws, 
 96, authorizes the mother to appoint a testamentary guar- 
 dian to her minor children when she leaves an estate to 
 them, provided that the father be not living, or being 
 deceased, he has not appointed such guardian. Also pro- 
 vides that : 
 
 " Every mother, who by her deceased husband's will, has been appointed testa- 
 mentary guardian of her children, may by her last will and testament appoint 
 a successor in such guardianship." 
 
 (3.) As to the power to appoint and discharge guardians 
 vested in the Orphans' Court. 
 
 The power to appoint guardians vested in the Orphan's 
 Court having already been set forth in treating of that 
 species of guardianship, it remains therefore to treat of 
 how a guardian may be discharged by the said court and 
 for what cause. 
 
 1st. At his own petition. 
 
 The Act of 29 March, 1832, Pamphlet Laws, 192, in 
 section 11, provides as follows: 
 
 " The Orphans' Court shall have power, upon the petition of any such guar- 
 dian, to discharge him from the duties of his appointment: Provided, Tliat no 
 guardian shall be discharged from his liability for the estate of his ward, until 
 
SEC. IV.] APPOINTMENT AND DISCHARGE OP GUARDIANS. 41 
 
 he shall have rendered to the court an account of the management of his trust, 
 nor until the same shall have been submitted to competent persons as auditors, 
 for examination, and their report thereon be confirmed by the court, unless such 
 account shall have been examined by the said court and the appointment of 
 auditors be found necessary: nor until such guardian shall have surrendered 
 the residue of the estate standing upon his account, settled and confirmed as 
 aforesaid, to a subsequent guardian of such ward or to such other person as the 
 court shall appoint to receive such estate: And provided further, That in every 
 such case it shall be the duty of the court to appoint some suitable person to 
 appear and act for the ward, in respect to the settlement of such account." 
 
 A guardian may be discharged on his own petition 
 without having filed an account when his ward joins 
 therein : Marr's Appeal, 28 P. F. Smith, %Q, wherein the 
 llth section of the Act of 1832 is construed ; but he will 
 not be discharged merely on his own petition until he has 
 filed a final account : Bear's Account, 3 Luzerne L. Ob- 
 server, 6. On the discharge of one of two joint guardians, 
 the one discharged does not remain liable for the default 
 of the remaining guardian, but the sureties on the bond 
 do. Hocker v. Wood, 9 Casey, 466. 
 
 2d. For his mismanagement or misconduct. 
 
 The 12th section of the same act provides as follows : 
 
 "The Orphans' Court shall have power to remove any guardian, whether 
 testamentary or otherwise, on due proof of his mismanagement of the minor's 
 estate, or misconducting himself in respect to the maintenance, education, or 
 moral interests of the minor ; in any such case the court shall have power to 
 order the oflfending guardian to deliver up, assign, transfer and pay over to the 
 successor in the guardianship, or to such persons as the court shall appoint, all 
 and every the goods, chattels, rights, credits, title deeds, evidences, and securi- 
 ties whatsoever, belonging to the minor, and in the hands or under the power 
 of the guardians, and to make such other order and decree, touching the premises, 
 as the interests of the minor may require.'' 
 
 And sections 22, 23, 24, 26, and 27, as follows : 
 
 " Section 22. Whenever it shall be made to appear to the Orphans' Court 
 having jurisdiction of the accounts of any executor, administrator or guardian, 
 or to any judge thereof, when such court shall not be in any session, on the 
 oath or affirmation of any person interested, that such executor, administrator 
 or guardian is wasting or mismanaging the estate or property under his charge. 
 
42 OF GUARDIAN AND WARD. 
 
 or is like to prove insolvent, or hag 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, then and in every such case it shall be lawful 
 for such court, or for such judge thereof, to issue a citation to such executor, 
 administrator or guardian, requiring him to appear, on a day certain, before 
 an Orphans' Court to be convened for such purpose, if the said court shall not 
 then be in session, and the case shall require dispatch, and upon the return of 
 such citation, the said court may require such security of such executor, or 
 such other and further security of such administrator or guardian, as they may 
 think reasonable, conditioned for the performance of their respective trusts, 
 which security shall be taken in the name of the Commonwealth of Pennsyl- 
 vania, and filed in the said Orphans' Court, and shall be deemed and consid- 
 ered in trust for the benefit of all persons interested in such estate ; Provided, 
 That if, in the cases above mentioned, it shall be made to appear to the said 
 court or any judge thereof, on oath or affirmation as aforesaid, that such exec- 
 utor, administrator or guardian 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 law- 
 ful for such court, or such judge thereof, to issue a writ of attachment, under 
 which the same proceedings 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 above mentioned. 
 
 " Section 23. If such executor, administrator or guardian shall neglect or 
 refuse to give such security, or such further security so ordered, then the said 
 court shall vacate such letters testamentary or of administration, or remove 
 such guardian, and award new letters, to be granted in such form as the case 
 may require, by the register having jurisdiction, upon such security as the court 
 shall think proper ; and in the case of a guardian, the court shall proceed to 
 the admission or the appointment of a new guardian, according to the circum- 
 stances of the ease ; and the said court shall moreover order the first executor, 
 administrator or guardian, to deliver over and pay to his successor, all and 
 every the goods, chattels and estates in his hands, of the decedent or minor, as 
 the case may be. 
 
 " Section 24. If such superseded executor, administrator or guardian, shall 
 neglect or refuse to comply with the order of the court in the premises, the 
 court may proceed against him by attachment, with or without sequestration, 
 or may issue process for the delivery of the trust, property and effects, as is 
 hereinafter provided, or the successor may proceed at law against him 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 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." 
 
 " Section 26. When any executor, administrator or guardian shall have been 
 duly declared a lunatic, or .an habitual drunkard, it shall be lawful for the 
 Orphans' Court having jurisdiction over the accounts of such executor, admin- 
 istrator or guardian, to vacate the letters testamentary or of administration 
 granted to such executor or administrator, and to remove such guardian, and 
 to award new letters, to be granted in such form as the case may require, by 
 
SEC. IV. J APPOINTMENT AND DISCHARGE OF GUARDIANS. 43 
 
 the register, having jurisdiction upon such security as the court shall think 
 proper; and in the case of a guardian, the court shall proceed to the admis 
 sion or appointment of a new guardian accordingly ; and the court shall also 
 make such order, for the security of the trust property, and for its delivery to 
 the successor of such executor, administrator or guardian, as the circumstances 
 of the case may require. 
 
 " Section 27. When any executor, administrator or guardian shall have re- 
 moved from this State, or shall have ceased to have any known place of resi- 
 dence therein, during the period of one year or more, the Orphans' Court, 
 having jurisdiction of the account of such executor, administrator or guardian, 
 may, on the application of any person interested, and after a citation shall have 
 been returned, served, or published, as is hereinafter provided, make a decree 
 vacating such letters testamentary or of administration, and remove such guar- 
 dian, and award new letters, to be granted in such form as the case may require, 
 by the register having jurdiction, upon such security as the court shall think 
 proper; and in the case of 'a guardian, the court shall proceed to the admission 
 or appointment of another guardian accordingly : Provided, That no decree, as 
 aforesaid, shall suspend the power, or prejudice the acts of any person who 
 may be joined with such executor, administrator or guardian ia the trust." 
 
 The Act of 22 April, 1846, Pamphlet Laws, 483, in 
 section 1, provides as follows: 
 
 "In all cases where any trustee or trustees, created or vested with authority, 
 by the last will and testament of any deceased person, or any writing testamen- 
 tary in the nature of a will, shall die, resign pr be otherwise removed from the 
 trust, the Orphans' Court of the proper county shall have power and authority 
 to appoint another trustee or trustees, to supply the vacancy occasioned by such 
 death, resignation or removal, and shall require security for the faithful per- 
 formance of the trust ; and the said courts are hereby invested with power to 
 dismiss all executors, administrators or guardians of estates held by testamen- 
 tary trust, in cases of waste or mismanagement, coming within the provisions 
 of the 22d section of the Act of 29 March, 1832, relative to Orphans' Courts.'' 
 
 The Act of 1 May, 1861, Pamphlet Laws, 680, pro- 
 vides as follows in section 1 : 
 
 " Whenever it shall appear to the proper court having jurisdiction of the 
 accounts of any executor, administrator, guardian, committee of a lunatic or of 
 an habitual drunkard, or other trustee, on the oath or affirmation of any person 
 interested, that such executor, administrator, guardian, committee, or trustee 
 is wasting or mismanaging the property or estate under his charge, or that for 
 any reason the interests of the estate or property are likely to be jeopardized 
 by the continuance of any such executor, administrator, guardian, committee 
 or trustee, or when such executor, administrator, guardian, committee or trus- 
 tee is or is likely to prove insolvent, or has neglected to exhibit true and per- 
 
44 OF GUAEDIAJT AND WAED. 
 
 feet inventories, or render full and just accounts of sucli estate or property, 
 come to his hands or knowledge, according to law, then and in every such case 
 it shall and may be lawful for such court, or for the said president judge, to 
 issue a citation to such executor, administrator, guardian, committee or trustee, 
 requiring him to appear on a day certain, to answer the charge so preferred as 
 aforesaid, and shall make all such necessary rules and orders, as the said court, 
 or the said president judge thereof, may deem right, for bringing the matter 
 complained of to a hearing ; and if, on the hearing, the said court, or the said 
 president judge and one associate judge, in vacation, shall be satisfied of the 
 truth of the matters charged, the said court, or the said judges in vacation, if 
 the case shall require dispatch, may in their discretion, instead of requiring 
 the security provided for in the 22d section of the Act of the General Assembly 
 of this Commonwealth, passed the 29th of March, 1832, vacate the letters of 
 administration or testamentary, or commission, and remove such administrator, 
 executor, guardian, committee or trustee, and award new letters or commission, 
 to be granted by the register or by the court, in such form as the case may re- 
 quire, or appoint some suitable person to discharge such trust, upon such secu- 
 rity as the court may require ; and shall, moreover, order and compel such ex- 
 ecutor, administrator, guardian, committee or trustee, to deliver over and pay 
 to his successor, ail and every the goods, chattels and property, money, estate 
 or effects in his hands as aforesaid." 
 
 And the said act in section 2 provides as follows : 
 
 " Whenever any sole executor, administrator, guardian, committee or trus- 
 tee, shall become incompetent to discharge the duties of their respective trusts 
 by reason of sickness or other visitation, and it shall appear to the satisfaction 
 of the court having jurisdiction of their accounts, that such incompetency is 
 likely to continue, to the injury of the estates under their control, it shall be 
 lawful for such court to make a decree vacating the letters testamentary, or 
 of administration granted to such executor or administrator, or revoking the 
 appointment of such guardian, committee or trustee ; after which new letters 
 shall be granted, and appointments made, in the same manner as in other cases 
 of vacancy in such trusts." 
 
 If the guardian neglect to ajapear on citation, the court 
 cannot take the complaint pro confesso, but should hear 
 evidence to sustain it. Shilling's Appeal, 1 Barr, 90. 
 Nor can the court remove two guardians on a complaint 
 against one. Ibid. 
 
 The following are reasons for the discharge of a guar- 
 dian: 
 
 (1.) The wasting or mismanagement of the estate of 
 the ward. See section 22 of Act of 29 March, 1832, 
 
SEC. V.J POWER, DUTIES, AND EIGHTS OF GUAEDIANS. 45 
 
 supra; Act of 22 April, 1846, Pamphlet Laws, 483 ; 
 and Act of 1 May, 1861, Pamphlet Laws, 680. 
 
 (2.) The probability of his becoming insolvent. Ibid. 
 
 (3.) The neglect to exhibit a true inventory. Ibid. 
 
 (4.) Thefailure to render full and just accounts. Ibid. 
 
 (5.) The removal of guardians from the State or from 
 the jurisdiction of the court. Ibid., and section 27 of 
 Act of 1832 ; also Bloomer's Appeal, 2 Norris, 45. 
 
 (6.) The refusal of a testamentary guardian to give 
 security when ordered. Sections 23 and 24 of Act of 
 1832. 
 
 (7.) The being declared a lunatic. Section 21 of Act 
 of 1832. 
 
 (8.) The being an habitual drunkard. Ibid. 
 
 (9.) The using the ward's money for his own private 
 purpose. Green's Estate, 7 Philadelphia, 502 ; Stanton's 
 Estate, 36 Legal Intelligencer, 148. 
 
 (10.) The refusal to supply necessaries to the ward. 
 Call V. Ward, 4 Watts & Sergeant, 118. 
 
 (11.) The ignorance of duty on the part of the guar- 
 dian. Nicholson's Appeal, 8 Harris, 50. 
 
 PIFTH. 
 
 Section V. 
 
 As to the Power, Duties, and Rights of Guardians. 
 
 The power and reciprocal duties of a guardian and ward 
 are the same, pro tempore, as that of father and child : 
 and therefore I shall not repeat them, but shall only add, 
 that the guardian, when the ward comes of age, is bound 
 to give him an account of all that he has transacted on 
 
46 OF GUAEDIAN AND WARD. 
 
 his behalf, and must answer for all losses by his wilful 
 default or negligence. 1 Blackstone's Commentaries, 462. 
 
 In Pennsylvania guardians are regarded with great 
 liberality by the courts, common skill, common prudence, 
 and common caution, are all that are required of them 
 in the administration of their trust. Konigmacher v. 
 Kimmel, 1 Penrose & Watts, 207 ; Pim v. Downing, 11 
 Sergeant & Rawle, 66 ; Chambersburg Saving Fund As- 
 sociation's Appeal, 26 P. F. Smith, 203 ; Hughes's Ap- 
 peal, 3 P. F. Smith, 500. 
 
 They are not answerable for the acts of agents neces- 
 sarily employed by them, when proper care has been 
 taken in their selection, unless there is an omission of 
 ordinary diligence on their part in compelling their 
 agents to perform their duties. See as to this reasoning 
 by analogy : Hennessy v. The Western Bank, 6 Watts 
 & Sergeant, 300. A guardian using the money of his 
 ward, or neglecting to invest it, is chargeable with interest. 
 Say V. Barnes, 4 Sergeant & Eawle, 112 ; Hughes's Ap- 
 peal, 3 P. F. Smith, 500; Bachman's Estate, 1 Clark's 
 Cases, 253. He is bound to examine the accounts of his 
 predecessor and to object to improper charges made 
 therein. Shirk's Estate, 1 Lancaster Bar of 18th Decem- 
 ber, 1869. 
 
 It is his duty to see that an embarrassed administrator 
 makes proper application of moneys of the minors to 
 whom he is guardian. Will's Appeal, 10 Harris, 325. 
 
 It may be well to recite a few decisions in the courts 
 of Pennsylvania in relation to the powers and duties of a 
 guardian. 
 
 (1.) He may make leases of the real estate of his ward. 
 Stoughton's Appeal, 7 Norris, 198 ; Thackray's Appeal, 
 25 P. F. Smith, 132 ; Hughes's Appeal, 3 P. F. Smith, 
 500. 
 
 He cannot lease the right to take oil, coal, or minerals 
 
SEC. V.J POWER, DUTIES, AND EIGHTS OF GUARDIANS. 47 
 
 from the lands of his ward unless authorized by the Or- 
 phans' Court. Stoughton's Appeal, 7 Norris, 198 ; Funk 
 V. Haldeman, 3 P. F. Smith, 229. 
 
 (2.) He may bind his ward by accepting a purpart of 
 his ancestor's real estate. Gelbach's Appeal, 8 Sergeant 
 & Kawle, 205. 
 
 (3.) He may bind his ward by purchasing at an Or- 
 phans' Court sale, under proceedings in partition. Bow- 
 man's Appeal, 3 Watts, 369. 
 
 (4.) He may bind his ward by the establishment of 
 consen table lines between adjoining tracts unless the ward 
 dissents on coming of age. Brown v. Caldwell, 10 Ser- 
 geant & Rawle, 114. 
 
 (5.) He may elect to accept payment of a legacy to his 
 ward in securities purchased by the testator, when the 
 executor is unable to sell the same except at a sacrifice. 
 Eeed's Appeal, 1 Norris, 428. 
 
 (6.) He may sue and collect damages for seduction of 
 the ward. Fernsler v. Moyer, 3 Watts & Sergeant, 416. 
 
 (7.) He may manage the estate the same as a parent. 
 Eichelberger's Appeal, 4 Watts, 84. 
 
 (8.) He cannot bind his ward by an act which is an 
 abuse and violation of his trust. Commonwealth v. 
 Hantz, 2 Penrose & Watts, 333. 
 
 (9.) He cannot without authority from the Orphans' 
 Court erect a building on the land of his ward. In re 
 Miller's Estate, 1 Barr, 326. 
 
 (10.) He cannot convert personal property of his ward 
 into real estate, unless by order of court or imminent 
 necessity. Royer's Appeal, 1 Jones, 36 ; Davis's Appeal, 
 10 P. F. Smith, 118 ; Bonsall's Appeal, 1 Rawle, 266. 
 
 (11.) He cannot in all cases change the domicil of his 
 ward. School Directors v. James, 2 Watts and Sergeant, 
 568. 
 
48 OF GUARDIAN AND WARD. 
 
 (Hi.) He cannot bind out his ward as a servant. 
 Eespublica v. Keppele, 2 Dallas, 197. 
 
 (12.) He cannot sue for ward merely in his own name. 
 Carskadden v. McGhee, 7 Watts & Sergeant, 140. 
 
 (13.) He can act for several wards in partition. Tot- 
 ten's Appeal, 10 Wright, 301. 
 
 (14.) He cannot exceed authority given by court. 
 Snodgrass's Appeal, 1 Wright, 377. 
 
 (15.) If he invest — without authority — his ward's 
 money in the stock of an incorporated company, he does 
 so at his own risk. Worrell's Appeal, 11 Harris, 44. 
 
 (16.) He cannot make permanent improvements to 
 his ward's property without order of court. Miller's Es- 
 tate, 1 Barr, 326. 
 
 (17.) He shall when appointed by court under the 8th 
 section of the Act of 29th March, 1832, or created by will, 
 if required by the court, give a bond of security for the 
 faithful performance of his duty in the form in said sec- 
 tion stated ; also under the provisions of the 22d and 33d 
 sections of the same act and under those of the 45th sec- 
 tion of the Act of 24th February, 1834, the 5th section 
 of the Act of 3d April, 1851, the 6th and 10th sections 
 of the Act of 18th April, 1853, and the 1st section of 
 the Act of 18th March, 1869, all of which are hereafter 
 cited. 
 
 (18.) He shall under the 9th section of the Act of 29th 
 March, 1832, file in the ofiice of the clerk of the Or- 
 phans' Court, on oath or affirmation, an inventory of the 
 property or estate of his ward. 
 
 (19.) He shall under the 10th section of the Act of 
 29th March, 1832, render, in the office of the clerk of 
 the Orphans' Court, an account once in every three years 
 and as many times oftener as may be required by the 
 courts ; but these accounts do not pass the register's office, 
 
SEC. v.] POWER, DUTIES, AND EIGHTS OF GDAEDIANS. 49 
 
 nor are they subjects of settlement and confirmation. 
 Yeager's Appeal, 10 Casey, 174. 
 
 (20.) He shall under the same section, unless pre- 
 viously discharged or removed, on the arrival of his ward 
 at full age, settle in the register's office a full and com- 
 plete account of his management of the minor's property 
 under his care, and the manner of settling this account is 
 in most counties of the State the same as required of ex- 
 ecutors and administrators. 
 
 (21.) He shall take charge of the estate as well as of 
 the person of his ward, and is bound to use reasonable 
 diligence in the management of it. Eichelberger's Ap- 
 peal, 4 Watts, 84. 
 
 (22.) He shall collect all moneys due his ward and 
 invest the same, with the approbation of the Orphans' 
 Court, and if he neglect to do so, or use the same for 
 himself, he will be accountable therefor with interest. 
 Hughes's Appeal, 3 P. F. Smith, 500 ; English v. Harvey, 
 2 Kawle, 305. 
 
 (23.) He is not responsible for his ward's breach of 
 contract. Velde v. Ijowering, 2 Rawle, 269. 
 
 (24.) He is responsible if he neglects to let the prop- 
 erty of his ward. Will's Appeals, 10 Harris, 325. 
 Or permits a tenant in common with his ward to collect 
 the whole rent due thereon. Bank of Pennsylvania v. 
 Wise, 3 Watts, 404. 
 
 (25.) He is responsible for the rent of a house leased 
 for his ward. Hannen v. Ewalt, 6 Harris, 9. 
 
 (26.) If at a sale of property he purchase for the ward, 
 it will be at the option of the latter on coming of age to 
 accept the same or refuse it. Chorpenning's Appeal, 8 
 Casey, 315 ; but see Kisler v. Kisler, 2 Watts, 326. 
 
 (27.) If he invest the money of a ward in a note with- 
 out security, he is liable for the note, but it was held other- 
 wise when invested in a mortgage on land, which from un- 
 
 4 
 
50 OF GUARDIAN AND WARD. 
 
 foreseen circumstanees became worthless. Konigmacher 
 V. Kimmel, 1 Penrose & Watts, 214. 
 
 (28.) Where he bona fide accepts a purf>art of the real 
 estate of a ward's father and gives recognizances for the 
 other shares, the minor is bound thereby. Gelbach's 
 Appeal, 8 Sergeant & Rawle, 205. 
 
 (29.) It is his duty to make a fair distribution amongst 
 his several wards. Hampton's Case, 17 Sergeant & 
 Rawle, 144. 
 
 (30.) A foreign guardian may under the provisions of 
 the Act of 8 April, 1872, P. L., 44, transfer shares of 
 stock, etc., and receive dividends and interest. See Act. 
 
 (31.) Where the guardian of the minors is the mother 
 she is not personally liable for their maintenance nor is 
 she entitled to their earnings. Sherer Heirs, 41 Legal 
 Intelligencer, 125. 
 
 It is the duty of the guardian to provide mainte- 
 nance and education for his ward out of the estate of the 
 ward : Estate of Flade Minors, 40 Legal Intelligencer, 
 131 ; but in cases of risk and uncertainty he should ap- 
 ply to the Orphans' Court : Allen v. Larkin, 41 Ibid., 75 ; 
 and in this regard the legislature has provided as follows 
 by the 13th section of Act of 29th March, 1832, Pam- 
 phlet Laws, 193. 
 
 "When any one shall die leaving an infant child or children, without hav- 
 ing made an adequate provision for the support and education of such child or 
 children, during their minority, the Orphans' Court may direct a suitable peri- 
 odical allowance, out of the minor's estate, for the support and education of such 
 minor, according to the circumstances of each case, which order may, from 
 time to time, be varied by the court, according to the age of the minor, and the 
 circumstances of the case." 
 
 By the 9th section of the Act of 18th April, 1853, 
 Pamphlet Laws, 507 : 
 
 " Provided, that, notwithstanding any direction to accumulate rents, issues, 
 
 interests, and profits, for the benefit of any minor or minors, it shall be lawful 
 
 -for the proper court as aforesaid, on the application of the guardian, when 
 
SEC. v.] POWER, DUTIES, AND EIGHTS OF GUARDIANS. 61 
 
 there shall be no other means for maintenance and education, to decree an 
 adequate allowance for such purpose, but in such manner as to make an equal 
 distribution among tliose having equal rights or expectancies, whether at the 
 time being minors or of lawful age." 
 
 When the personal estate of a decedent is insufficient 
 to pay his debts and provide for the maintenance and 
 education of his minor children, the Act of 29th March, 
 1832, Pamphlet Laws, 198, in section 31 provides as 
 follows : 
 
 " The Orphans' Court, which possesses jurisdiction of the accounts of an 
 executor, administrator, or guardian, shall have power to authorize a sale or 
 mortgage of real estate by such executor, administrator, or guardian, as in the 
 following cases, viz 
 
 " On the application of a guardian, setting forth that the personal estate of 
 the minor is insufEclent for his maintenance and education, or for the improve- 
 ment and repair of other parts of his real estate, or that the estate of said 
 minor is in such a state of dilapidation and decay, or so unproductive and ex- 
 pensive, that it would be to the interest and benefit of said minor, in the judg- 
 ment of said court, that the said estate should be sold. And the Orphans' Court 
 of the county wherein any such real estate may be situated, shall have the same 
 authority to direct a sale in this latter case as in the cases particularly men- 
 tioned in the thirty-second section of this act." 
 
 The 32d section of the said act provides as follows : 
 
 "When the real estate, with respect to which application shall be made to 
 the Orphans' Court, in the cases mentioned in the preceding section, is situ- 
 ated in the same county, the said court may order the sale or mortgage of such 
 part, or so much of such real estate as to them shall appear necessary, when 
 the real estate is situated in another county or counties, or in the same and 
 another county or counties, and the Orphans' Court which possesses jurisdiction 
 over the accounts of such executor, administrator, or guardian, shall be satisfied of 
 the propriety of a sale or mortgage of some portion of such real estate not 
 within their jurisdiction, it shall be lawful for such court to make a decree, 
 authorizing such executor, administrator, or guardian, to raise so much money 
 as the said court may think necessary, from real estate situated in such county 
 or counties as they may designate ; and thereupon, it shall be the duty of the 
 Orphans' Court of the county wherein the real estate so designated is situated, 
 upon the petition of such executor, administrator, or guardian, to make an 
 order for the sale or mortgage, as they shall think expedient, of so much, and 
 such parts of such real estate, as shall, in their opinion, be necessary to raise 
 the specified sum ; and such executor, administrator, or guardian, shall in all 
 cases make return of his proceedings in relation to such sale or mortgage, to 
 
52 OF GUARDIAN AND WARD. 
 
 the Orphans' Court of the county in which the real estate so sold or mortgaged 
 lies, -when, if the same be approved by the court, it shall be confirmed." 
 
 The requisites for obtaining the authority to make sale 
 and mortgage as aforesaid are set forth in the 33d and 
 84th sections of the same act. 
 
 " No authority for the sale or mortgage of real estate, lying in the same or 
 another county or counties, shall be granted, until the executor, administrator, 
 or guardian, as the case may be, shall have exhibited to the said court a true 
 and perfect inventory and conscionable appraisement of all the personal estate 
 whatsoever of the decedent or minor, as the case may be, together with a full 
 and correct statement of all the real estate of such decedent or minor, where- 
 ever situated, which has come to his knowledge; and also, in the case of an ex- 
 ecutor or administrator, a just and true account upon oath or aflBrmation, of all 
 the debts of the decedent which have come to his knowledge ; nor in any case 
 shall such authority be granted, until such executor, administrator, or guardian, 
 shall have filed in the office of the clerk of the said court, a bond with sufficient 
 security, to be approved of by the court, conditioned for the faithful appropria- 
 tion of the proceeds of such sale or mortgage according to their respective 
 duties: And provided further, That no real estate contained in any marriage 
 settlement shall, by virtue of this act, be sold or disposed of contrary to the 
 form and effect of such settlement, and that the mansion house or most profit- 
 able part of the estate, shall be reserved to the last. 
 
 " In all cases where an application shall be made to any Orphans' Court, for a 
 decree authorizing the sale or mortgage of real estate, under any of the provi- 
 sions contained in this act, the court may appoint suitable persons to investi- 
 gate the facts of the case, and to report upon the expediency of granting the 
 application, and the amount to be raised by such sale or mortgage; and upon 
 such report being made, the court may decree accordingly." 
 
 And instructions as to the notice of sale are given in 
 section 54 of the same act as follows, viz. : 
 
 " AVhenever, by the provisions of this act, it shall be lawful for the Orphans' 
 Court to order the sale of real estate, public notice of such sale shall be given 
 by the executor, administrator, or guardian, as the case may be, at least twenty 
 days before the day appointed therefor, by advertisement in at least one news- 
 paper 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, 
 affixed in at least three of the most public places in the vicinity of such estate." 
 
 The Act of 16 March, 1847, Pamphlet Laws, 474, 
 provides that upon the application of the guardian of a 
 
SEO. v.] POWER, DUTIES, AND EIGHTS OF GUARDIANS. 53 
 
 minor, the Orphans' Court may decree that the guardian 
 may let the vacant ground of said minor on ground-rent, 
 "where the application sets forth that the ground is un- 
 productive and expensive, and that it would be to the 
 interest and benefit of such minor that the same should 
 be let. 
 
 The Act of 3 April, 1851, Pamphlet Laws, 305, in 
 section 1, provides for the sale, mortgaging, leasing, and 
 conveyance of the real estate of a minor, on the applica- 
 tion of his guardian ; and in section 4, provides for the 
 form of the application ; and the Act of 18 April, 1864, 
 Pamphlet Laws, 462, authorizes guardians, etc., to join 
 with owners of other joint interests in making and taking 
 conveyances. 
 
 The Act of 18 April, 1853, Pamphlet Laws, 503, 
 provides in section 1 that : 
 
 " In all cases where real estate shall have been acquired by descent or last 
 will, the Orphans' Court, and in all other cases the Courts of Common Pleas 
 of the respective counties of this Commonwealth, shall have jurisdiction to 
 decree the sale, mortgaging, leasing, or conveyance on ground-rent, of such 
 real estate in the cases hereinafter described : Provided, That any such court in 
 the county where the premises shall be situated, sliall be of the opinion that it 
 is for the interest and advantage of those interested therein, that the same 
 should be sold, mortgaged, leased, or let on ground-rent, and may be done with- 
 out injury or prejudice to any trust, charity, or purpose for which the same 
 shall be held : Provided, That the same may be done without the violation of 
 any law, which may confer an immunity or exemption from sale or alienation.'' 
 
 Section 2 sets forth the cases in which this may be 
 done, amongst others, where real estate shall be held for 
 or owned by minors. 
 
 Section 7 provides that : 
 
 " It shall be lawful for trustees, guardians, committees, married women, and 
 corporations, in all the cases aforesaid, under the decree of the court as aforesaid, 
 and with the like effect and indemnity to them in acting thereunder : 
 
 "To make and take conveyances, by deed, acknowledged in court, without 
 public sale, in order to square and adjust lines between adjoining owners; to 
 make and take conveyances, to perfect the partition of real estate held in joint- 
 
54 OF GUARDIAN AND WARD. 
 
 tenancy, coparcenary, or in common with others ; to purchase other real estate, 
 wlien needful, to that already owned by any such party, or useful to the busi- 
 ness thereupon carried on, or when necessary to protect any security or rent 
 held on property exposed to judicial sale : Provided, That no corporation shall 
 be so authorized to purchase beyond its charter license." 
 
 In section 3 tlie act provides that: 
 
 "Such sale, mortgaging, leasing, or conveyancing upon ground-rents, may be 
 decreed on tlie petition of any trustee, guardian, committee, or person interested, 
 etc., etc. : Provided, That in case of the appointment of a guardian by the court, 
 and the payment of money to him, or of the payment over of money to any 
 former guardian, the court shall take adequate security for the faithful applica- 
 tion of such money.'' 
 
 And in section 4 : 
 
 " That such sales, mortgages, leasing and letting on ground-rent, shall only 
 take place after careful investigation by the court, . . i ' and shall be made by 
 trustees, executors, administrators, guardians, committees or owners having a 
 present vested interest, as the court may order,' etc., etc." 
 
 The same act in section 9 provides how the court, on 
 the application of the guardian, may decree an adequate 
 allowance from a minor's estate for his maintenance and 
 education. 
 
 The Act of 13 April, 1854, Pamphlet Laws, 368, pro- 
 vides in section 1, for the acknowledgment of instruments 
 in writing executed by guardians, etc., who reside out of 
 the county in which the real estate is situate, making the 
 same valid if made before the Orphans' Court, or Court 
 of Corbmon Pleas of any county in the State where the 
 person executing may reside. 
 
 The Act of 22 April, 1859, Pamphlet Laws, 207, in 
 section 1, provides that in all sales of real estate under 
 the order of the Orphans' Court, authorized by the laws 
 of this Commonwealth, the court decreeing the sale shall 
 have power to direct the terms thereof, etc., in the man- 
 ner set forth in the section. 
 
 The Act of 18 April, 1864, Pamphlet Laws, 462, 
 makes it lawful for guardians : 
 
SEC. v.] POWER, DUTIES, AND RIGHTS OF GUARDIANS. 55 
 
 " To make and take, or to join with owners of other undivided interests in 
 making and taking conveyances, by deed acknowledged in court, and without 
 public sale, 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," etc. 
 
 This act provides that the court may, in their discre- 
 tion, demand security. 
 
 Of Security Bonds, given by or to Guardians. 
 
 Provision was made for security bonds to be given to 
 the Orphans' Court as early as 1693, by the law about 
 Testates' and Intestates' Estates, 1 Dallas's Laws, Appen- 
 dix, 33 ; also by the Act of 1697, Ibid., 34; also by the Act 
 of 28 October, 1701, Duke of York's Laws, 3i7, entitled 
 "An act for establishing courts of judicature in this prov- 
 ince and the counties annexed ;" but, the said acts having 
 been repealed, the last on 7 February, 1705, no Orphans' 
 Court existed in Pennsylvania until the passage of the 
 Act of 27 March, 1713, 1 Smith's Laws, 81, which made 
 provision for the establishment of Orphans' Courts, and in 
 the 3d section provided for security to be given by guar- 
 dians, etc. The 10th Section of the Act of 7 April, 1807, 
 4 Smith's Laws, 401, likewise provided for such security 
 in cases where, the personal estate of minors being insuf- 
 ficient for their maintenance and education, the guardian 
 was permitted to make sale of the realty. The Act of 
 30 March, 1821, 7 Smith's Laws, 432, in the 1st section, 
 made also provision for bonds of security to be given by 
 guardians, and it was from this section that the commis- 
 sioners took the 8th section of the revised Act of 29 
 March, 1832. The first part of section 1 of the Act of 
 1821 reads as follows : 
 
 '' That the several and respective Orphans' Courts within this Commonwealth 
 may, whenever they deem it proper, require bond with good and sufficient secu- 
 rity from all and every guardian or guardians of a minor child or children, 
 whether such guardian has been or shall be appointed by the court, chosen by 
 
56 OP GUAEDIAN AND WARD. 
 
 the minor with the approbation of the court, or created by the last will and 
 testament of a deceased testator, wliich bonds shall be considered in trust for 
 all persons interested, and shall be taken and filed in the Orphans' Court in the 
 name of the Commonwealth, with a condition and in the manner and form fol- 
 lowing, viz." 
 
 The form of the bond as given in this act differs but 
 little from the form given in the 8th section of the Act of 
 29 March, 1832. The 2d section of the act of 1821 
 made provision for the security of such sureties of a guar- 
 dian as might suppose themselves to be in danger of in- 
 jury from such surety. This section was supplied by the 
 28th section of the Act of 29 March, 1832, Pamphlet 
 Laws, 197, which, after providing for the application to 
 the Orphans' Court by the surety, states that the court 
 may order the guardian to give counter security to in- 
 demnify the surety, and in case of failure to do so may 
 order the guardian to pay over to the surety the goods, 
 chattels, etc., for which the surety was accountable : Pro- 
 vided, " That such surety shall first give, to the satisfac- 
 faction of the court, sufficient security, faithfully to pre- 
 serve and account therefor, and deliver and dispose of 
 the same according to the order of the said court." 
 
 Security bonds may be divided into two classes, as 
 follows : 
 
 (1.) Bonds for the faithful performance of duty as- 
 signed, viz. : 
 
 1st. Under section 7 of Act of 29 March, 1832, Pam- 
 phlet Laws, 191. 
 
 2d. Under section 8 of Act of 29 March, 1832, 
 Pamphlet Laws, 191. 
 
 8d.. Under section 22 of Act of 29 March, 1832, 
 Pamphlet Laws, 195. 
 
 4th. Under section 33 of Act of 29 March, 1832, 
 Pamphlet Laws, 200. 
 
 5th. Under section 5 of Act of 3 April, 1851, Pam- 
 phlet Laws, 306. 
 
SEC. v.] POWER, DUTIES, AND EIGHTS OF GUARDlAIirS. 57 
 
 6th. Under section 3 of Act of 18 April, 1853, Pam- 
 phlet Laws, 504. 
 
 7th. Under section 4 of Act of 18 April, 1853, Pam- 
 phlet Laws, 505. 
 
 8th. Under section 6 of Act of 18 April, 1853, Pam- 
 phlet Laws, 506. 
 
 9th. Under section 1 of Act of 18 April, 1864, 
 Pamphlet Laws, 462. 
 
 10th. Under section 1 of Act of 18 March, 1869, 
 Pamphlet Laws, 409. 
 
 11th. Under Act of 17 May, 1871, Pamphlet Laws, 
 269. 
 
 (2.) Bonds for the refunding to executors, adminis- 
 trators, guardians, and remainder-men, of money paid out 
 by them in error. 
 
 1st. Under section 45 of Act of 24 February, 1834, 
 Pamphlet Laws, 82. 
 
 2d. Under section 46 of Act of 24 February, 1834, 
 Pamphlet Laws, 82. 
 
 3d. Under section 47 of Act of 24 February, 1834, 
 Pamphlet Laws, 82. 
 
 4th. Under section 49 of Act of 24 February, 1834, 
 Pamphlet Laws, 83. 
 
 5th. Under section 52 of Act of 24 February, 1834, 
 Pamphlet Laws, 83. 
 
 6th. Under section 61 of Act of 24 February, 1834, 
 Pamphlet Laws, 84. 
 
 7th. Under section 1 of Act of 13 April, 1859, Pam- 
 phlet Laws, 604, amended by act 10 June, 1881, Pam- 
 phlet Laws, 106. 
 
 (1.) Of Bonds for the Faithful Performance of Duty by 
 a Guardian. 
 
 We have seen by the foregoing that it is the duty of 
 the guardian, when required by the Orphans' Court, to 
 
58 OF GUARDIAN AND WARD. 
 
 file a bond of security for the faithful discharge of his 
 duty as guardian. This is jarovided for as follows : 
 
 1st. Under the 7th section of the Act of 29 March, 
 1832, Pamphlet Laws, 191, supra, page 26. 
 
 2d. Under the 8th section of the Act of 29 March, 
 1832, Pamphlet Laws, 191. 
 
 "The Orphans' Court, having jurisdiction, whenever they may deem it 
 proper, may require a bond with good and sufficient security, from every guar- 
 dian of a minor, whether admitted or appointed by the court, or created by will, 
 which bond shall be tiled in the office of the clerk of the court, and be consid- 
 ered in trust for all persons interested ; the bonds shall be taken to the Com- 
 monwealth in such penalties as the court shall direct, and the condition shall 
 be in the following form : ' The condition of this obligation is such, that if the 
 
 above bounden A. B., guardian of C. D., a minor child of E. F., late of 
 
 , deceased, shall, at least once in every three years, and at any other 
 
 time when required by the Orphans' Court for the county of , render 
 
 a just and true account of the management of the property and estate of the 
 said minor, under his care, and shall also deliver up the said property, agree- 
 ably to the order and decree of the said court, or the directions of law, and 
 shall, in all respects, faithfully perform the duties of guardian of the said C. D., 
 then the above obligation shall be void, otherwise it shall be and remain in full 
 force and virtue :' Provided, That nothing in this act contained shall be con- 
 strued to deprive a minor of any action or remedy to which he may be entitled 
 at the common law against his guardian, for any cause whatever." 
 
 The duty of filing such bond is not primarily incum- 
 bent on a testamentary guardian, because, as in the case 
 of an executor, the testator's appointment shows the trust 
 and confidence reposed in him. Stanton's Estate, 7 
 Weekly Notes of Cases, 18. But if the testamentary 
 guardian fail to fulfil his duty as guardian, or makes use 
 of the money of his ward, the court may require him to 
 enter security. 
 
 It is competent for the court to require such security 
 either at the time of the appointment of the guardian, or 
 at any subsequent time. Lloyd v. Commonwealth, 35 
 Legal Intelligencer, 171. Moreover, guardians are not^ 
 always required to give security, that being a matter at 
 the discretion of the court. Royer v. Myers, 8 Harris, 
 88 ; Newcomer's Appeal, 7 Wright, 44. 
 
SEC. v.] POWER, DUTIES, AND EIGHTS OF GUAEDIANS. 59 
 
 In regard to the entering of security by guardians, the 
 Orphans' Court of the city of Philadelphia has made the 
 following rules : 
 
 EuLE VIII., Section 3. " In every case where the amount of security re- 
 quired to be given by a trustee or guardian sliall be two thousand ($2000) 
 dollars, or in excess thereof, the surety or sureties shall be approved by the 
 court, but when less than thatiamount they may be approved by the clerk, in 
 pursuance of an order of court previously made." 
 
 Section 4. " When any corporation shall hereafter be appointed trustee or 
 guardian by this court, it shall be upon condition that such corporation shall 
 not invest any of the trust funds in coupon bonds or other securities that pass 
 by delivery." 
 
 " Every such corporation shall be required to invest all trust funds in its 
 name as trustee or guardian as the case may be, and keep the same separate 
 and apart from its own funds." 
 
 Section 5. "No certificate of the appointment of any guardian or trustee 
 shall be given by the clerk of the court, without security (if required) having 
 been first entered." 
 
 EuLE XIII. "All applications for approval of securities shall be accom- 
 panied by an affidavit of the party or parties offered as security, setting forth ; 
 I. " His or their name, residence, and occupation. 
 II. " The location of rea'l estate owned by him or them, or so much as may 
 be sufl!icient, and a memorandum of the record thereof. 
 
 III. "That the title thereof is in his or their name. 
 
 IV. " The nature and amount of incumbrances, if any, upon the real estate. 
 V. " The assessed value of the real estate described. 
 
 "Said affidavit shall be filed with the clerk of the court ;" Eules, edition of 
 1883, 9 and 21. 
 
 3d. Under the 22d section of the Act of 29 March, 
 1832, Pamphlet Laws, 195, as follows : 
 
 " Whenever it shall be made to appear to the Orphans' Court having juris- 
 diction of the accounts of any executor, administrator, .... or guardian, or 
 to any judge thereof when such court shall not be in ' any ' session, on the oath 
 or affirmation of any person interested, that such executor, administrator or 
 guardian 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 per- 
 fect inventorie.', or render full and just accounts of such estate or property, 
 come to his hands or knowledge, then and in every such case it shall be lawful 
 for such court, or for such judge thereof, to issue a citation to such executor, 
 administrator or guardian, requiring him to appear, on a day certain, before 
 an Orphans' Court to be convened for such purpose, if the said court shall 
 not then be in session and the case shall require dispatch, and upon the 
 return of such citation, the said court may require such security of such exec- 
 
GO OF GTJAEDIAN AND WAED. 
 
 litor, or sucli other and further security of such administrator or guardian as 
 they may think reasonable, conditioned for the performance of their respective 
 trusts, wliich security shall be taken in the name of tlie Commonwealth of 
 Pennsylvania and filed in the said Orphans' Court, and shall be deemed and 
 considered in trust for the benefit of all persons interested in such estate : 
 Provided, That if, in the cases above mentioned, it shall be made to appear to 
 the said court or any judge thereof, on oath or afSrmation as aforesaid, that 
 such executor, administrator or guardian is about to remove from this Com- 
 mouAvealth, 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, or such judge thereof, to issue a writ of attachment, 
 under which the same proceedings make take place as in other cases of attach- 
 ment 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 above men- 
 tioned." 
 
 The above section, it is seen, applies to all guardians, 
 and when accused of using the property of the ward for 
 their own purposes, they may be required by the court 
 to give additional security. Stanton's Estate, 7 Weekly 
 Notes of Cases, 18. 
 
 4th. Under the 33d section of the Act of 29 March, 
 1832, Pamphlet Laws, 200, as follows : 
 
 " No authority for the sale or mortgage of real estate, lying in the same or 
 another county or counties, shall be granted, until the executor, administrator 
 or guardian, as the case may be, shall have exhibited to the said court a true 
 and perfect inventory and conscionable appraisement of all the personal estate 
 whatsoever of the decedent or minor, as the case may be, together with a full 
 and correct statement of all the real estate of such decedent or minor, wherever 
 situated, which has come to his knowledge ; and also, in the case of an executor 
 or administrator, a just and true account, upon oath or affirmation, of all the 
 debts of the decedent which have come to his knowledge ; nor in any case shall 
 such authority be granted, until such executor, administrator or guardian, shall 
 have filed in the office of the clerk of the said court, a bond, with sufficient 
 security, to be approved of by the court, conditioned for the faithful appropria- 
 tion of the proceeds of such sale or mortgage, according to their respective 
 duties: And provided further, Thut no real estate contained in any marriage 
 settlement shall, by virtue of this act, be sold or disposed of contrary to the 
 form and effect of such settlement, and that the mansion house, or meet profit- 
 able part of the estate, shall be reserved to the "last." 
 
 The above section provides for a bond from the guar- 
 dian, conditioned for the faithful appropriation of the 
 proceeds of the sale or mortgage of the ward's estate. 
 
SEC. V.J POWEB, DUTIES, AND EIGHTS OF GUARDIANS. 61 
 
 5tli. Under the 5th section of the Act of 3 AjDril, 
 1851, Pamphlet Laws, 306, relating to sales of real estate 
 of minors by their guardians or trustees, as follows : 
 
 " Before any sale of lands under any of the provisions hereof shall be con- 
 firmed by the court, the person or persons to whom the order of sale shall be 
 granted, shall file in the office of the clerk of said court a bond, with two or 
 more sureties, to be approved of by the said court, in double the amount of the 
 proceeds of such sale, conditioned for the faithful appropriation of said pro- 
 ceeds ; and no sale duly made and confirmed by the proper court, shall be held 
 to be void by reason of any misapplication of the proceeds thereof, or on account 
 of any error of judgment which the said court may have made in deciding that 
 such sale was to the interest of the minors or cestui qiie trusts interested in the 
 lands so sold." 
 
 6th. Under the 3d section of the Act of 18 April, 
 1853, Pamphlet Laws, 604 (this is the well-known 
 " Price " Act, relating to the selling of real estate by per- 
 sons acting in a trust capacity) , as follows : 
 
 " Such sale, mortgaging, leasing, or conveyance upon ground-rent may be 
 decreed, on the petition of any trustee, guardian, committee or person interested, 
 clearly setting forth the facts needful for the information of the court, under 
 oath or affirmation ; and if all proper parties shall not have voluntarily ap- 
 peared as petitioners or respondents, the court shall fix a day for parties 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 de- 
 signed ; and for those who cannot otherwise be served, cnuse advertisement to 
 be made in manner most likely to afford notice ; and service made in any part 
 of the United States and the territories thereof, with oath or affirmation of the 
 fact, taken before any judge or justice of the peace, and filed of record, shall be 
 good service ; and guardians shall be served and appear for their wards ; and if 
 minors shall have no guardian, the court shall appoint a guardian for them ; 
 committees shall be served and appear for lunatics and habitual drunkards ; 
 and husbands shall be served and appear with their wives, except husbands who 
 shall have abandoned their wives for two years, or been absent and unheard 
 from for seven years ; and if parties make default in appearing, the court, after 
 investigation of the facts, may proceed to make decree in the premises: Pro- 
 vided, That in case of the appointment of a guardian by the court, and the pay- 
 ment over of money to him, or of the payment of money to any Ibrmer guar- 
 dian, the court shall take adequate security for the faithful application of such 
 monev ; and before the payment of any money to any guardian, not within the 
 court's jurisdiction, the court shall be duly notified that adequate security has 
 been given to the court having jurisdiction over him, whether within or with- 
 out the Commonwealth." 
 
62 OF GUARDIAN AND WARD. 
 
 See Clothier's Appeal, 3 Brewster, 254, as to parties 
 under this section. 
 
 7th. Under the 4th section of the Act of 18 April, 
 1853, Pamphlet Laws, 505 : 
 
 " Such sales, mortgages, leasing and letting on ground-rent, shall only take 
 place after fnll and careful investigation by the court, aided, when deemed neces- 
 sary, by the report of a competent person to be appointed by the court; and 
 shall be made by trustees, executors, administrators, guardians, committees or 
 owners having a present vested interest, as the court may order ; and be under 
 the direction and subject to the approval of the court before which the deed 
 shall be acknowledged, and be certified under seal to have been acknowledged ; 
 and all absolute sales in fee-simple (except as hereinafter provided) shall be 
 by public sale or vendue, and may be either entirely for cash or partly on credit 
 and partly for cash, after full advertisement for at least twenty days by hand- 
 bills posted in at least twenty of the most public places in the city or county 
 where the premises shall be situated, and in at least two newspapei-s, not less 
 than three times in each : Provided, That if the court shall be of opinion that 
 under the circumstances a better price can be obtained at private than at public 
 sale, as where the interest be undivided, or for other suiBcient cause, the court 
 may approve and decree a private sale ; and such mortgaging, leasing and let- 
 ting on ground-rent, shall be upon terras and at rates to be approved by the 
 court; and the specific execution of the contracts of decedents upon the terms 
 and at the price proved or admitted to have been agreed upon by the parties ; 
 but no such private sale, leasing or letting on ground-rent shall be upon terms 
 or at rates less favorable than others, who, of competent ability to contract and 
 uniting in the sale of undivided interests, shall accept ; and it shall be the duty 
 of the court, in decreeing sales, leases and conveyances upon ground-rent of real 
 estate, to order the premises if necessary to be so subdivided as to command the 
 highest price or greatest rents, and for such purposes, where the premises may 
 admit of or require it, shall have power to lay out roads, streets and alleys, and 
 to vacate 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 ; And provided further, That no sale or sales shall be ordered or 
 made under the provisions of this act, in any case, until security to be approved 
 by the Court of Common Pleas or Orphans' Court, be given in at least double 
 the value of the interest proposed to be sold." 
 
 The Orphans' Court may decree a private sale of the 
 undivided interest of a minor, though the other owners 
 do not unite in the sale. Gilmore v. Rodgers, 9 Pittsburg 
 Legal Journal, 209. Moreover, it is sufficient that the 
 security be given before the confirmation of the sale. 
 
SEC. v.] POWER, DUTIES, AND EiaHTS OE GUARDIANS. 63 
 
 Thorn's Appeal, 13 Casey, 47 ; Green awalt's Appeal, 1 
 Wright, 95. 
 
 8th. Under the 6th section of the Act of 18 April, 
 1853, Pamphlet Laws, 506, as follows : 
 
 "The purchase-money or mortgage-money, ground or other rent reserved, 
 shall, in all respects, be substituted for the real estate sold, mortgaged or let, as 
 regards the enjoyment and ownership thereof, after the payment of liens, and 
 shall be held for or applied to the use and benefit of the same persons, and for 
 the same estate and interest, present or future, vested, contingent or executory, 
 as the real estate sold, mortgaged or let, had been held, except only such re- 
 mainders after an entailment, or contingent remainders, as shall have been 
 barred or defeated as aforesaid ; and those entitled to a present interest in such 
 real estate shall receive the interest of the proceeds or rents thereof, unless ex- 
 pressly directed to accunmlate : Provided, That 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, unless 
 the same be required for the maintenance or education of parties having the 
 like interests vested or expectant, and 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 de- 
 vise; and it shall be the duty of the court to decree the proper application of 
 all purchase or mortgage-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 ; and before any decree shall be executed, the person 
 or persons intrusted to execute the same shall give adequate security to the 
 Commonwealth, to be approved by the court, conditioned for the faithful execu- 
 tion of the trust and proper application of all moneys to be received according 
 to the trust and decree of the court; which security shall inure to the benefit 
 of all parties interested; and such security being so given, no purchaser or 
 lessee shall be bound to see to the application of the purchase-money or rents, 
 or be, in any manner, liable to or aflfected by the former trust or limitations upon 
 the premises." 
 
 Section 10 of said act provides as follows: 
 
 "The directions given in the 6th section of this act, in regard to the security 
 to be given in cases of sales, mortgage or letting of real estate, and the condi- 
 tion of the bond or security therein prescribed, shall apply to all cases of sales 
 or mortgage 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." 
 
 The 7th section of the Act of 1853 made it lawful for 
 trustees, guardians, etc., under decree of court to make 
 
64 OF GUARDIAN AND WARD. 
 
 and take conveyances, to perfect partitions, and to pur- 
 chase other property, to protect their sureties on the land 
 as is in said section set forth. 
 
 9th. Under the 1st section of the Act of 18 April, 
 1864, Pamphlet Laws, 462, as follows : 
 
 " It shall be lawful for trustees, guardians, committees, married women and 
 corporations, in addition to the powers conferred by the seventh section of the 
 act to which this is a supplement, under the decree of the proper court, and 
 with the like effect and indemnity to them in actions thereunder, to make and 
 take, or to join with owners of other undivided interests in making and taking 
 conveyances, by deed acknowledged in court, and without public sale, in order 
 to change, in part or in whole, the right or location of any right of way or 
 passage, existing over and upon adjoining or other lands : Provided, The court 
 shall be of opinion that it (is) for the interest or advantage of the owner or 
 owners of the land to which such right of way is appurtenant, that such change 
 of route or location be made as aforesaid : And provided further, That it shall 
 be in the discretion of the court, in such cases, to require security, or not, from 
 the person or persons aforesaid, making or taking such conveyances." 
 
 10th. Under the 1st section of the Act of 18 March, 
 1869, Pamphlet Laws, 409, in Mercer County : 
 
 " The Orphans' Court of Mercer County shall have power, on the application 
 of the guardian of any minor or minors owning minerals within said county, 
 to authorize any guardian to lease said mineral lands, on such terms and con- 
 ditions, and for such rental or royalty per ton or otherwise, as shall appear just 
 and equitable to said court, with the same force and effect as though said lease 
 were made by a' person of full age: Provided, That said guardian shall first 
 file his bond in said court, in such sum, and with such surety or sureties as shall 
 be approved by said court, conditioned for the faithful application and payment 
 by him, of all rental or royalties to be received under said lease." 
 
 1 1th. Under Act of 17 May, 1871, Pamphlet Laws, 269, 
 section 1 : 
 
 " That hereafter any trustee, guardian, executor or administrator appointed 
 by any court in this Commonwealth, or by virtue of any last will or testament, 
 may lawfully execute the duties of his trust, whether a resident of the county 
 in which the trust was created or in which the decedent had his domicil or 
 not ; but the court or ofScers having jurisdiction of the accounts of any such 
 trustee may, in its discretion, appoint or refuse to appoint as trustee, guardian 
 or administrator, any persons who are not residents of the State, requiring in 
 all cases of a non-resident of the State, a bond with sufficient sureties condi- 
 
SEC. V.J POWER, DUTIES, Al^D EIGHTS OF GUARDIANS. 65 
 
 tioned for the faithful discharge of the duties of the trust: Provided, That no 
 person residing out of the State shall be appointed without the consent of the 
 proper court." 
 
 The Act of 23 March, 1867, Pamphlet Laws, 43, in 
 section 1, provides that : 
 
 " All deeds made to convey real estate sold under an act passed the 18th day 
 of April, 1853, entitled ' An act relating to the sale and conveyance of real 
 estate,' being acknowledged in court, and so certified to have been, by the clerk 
 or prbthonotary, as required by said act, or supplements, may be recorded in 
 the recorder of deeds' ofiice without other acknowledgment ; and the security 
 required by said act, may be approved by the proper court of like jurisdiction 
 of the county of which the grantor or one of them is resident, and be certified 
 under seal of such court, to that wherein the sale was decreed ; and such certifi- 
 cates shall be certified on the record thereof." 
 
 And in section 2, that: 
 
 " Private' sales made by order of court under the said Act of April, 1S-j3, 
 shall discharge the premises sold from the lien of tlie debts of the decedent, 
 except debts of record, and debts secured by mortgage." 
 
 (2.) Of bonds for the refunding to executors, adminis- 
 trators and guardians of moneys paid out by them, wliere 
 a valid claim against the estate may arise. 
 
 These bonds are called refunding bonds, and arise from 
 and under the following Acts of Assembly. 
 
 1st. Under the 45th section of the Act of 24 February, 
 1834, Pamphlet Laws, 82, relating to sales of real estate 
 in partition, which provides for a refunding bond as 
 follows : 
 
 "Before any distribution of the proceeds of such real estate shall be made 
 among the kindred of the decedent, the persons entitled to receive the same 
 shall, respectively, give sufficient real or personal security to be approved of by 
 the Orphans' Court having jurisdiction, with condition that if any debt or de- 
 mand shall be afterwards recovered against the estate of the decedent, or other- 
 wise be duly made to appear, they will respectively refund the ratable part of 
 such demand, and the costs and charges attending the recovery of tiie same, so 
 far as such real estate would have been liable to such demand if it had remained 
 unsold ; but if the person or persons entitled to receive tlie same, is or are 
 
 5 
 
66 or GUARDIAN AND WARD. 
 
 unable to give the security aforesaid, then the money shall be put at interest as 
 directed in the forty first section of this act." 
 
 The above section is preceded by section 44, of the 
 same act, which provides that when an executor or ad- 
 ministrator shall neglect to execute an order for the sale 
 of real estate to effect a partition, the court may appoint 
 a trustee for that purpose. 
 
 2d. Under the 46th section of the same act, which pro- 
 vides that in the case of a sale of a decedent's real estate 
 for the payment of debts, a tenant for life shall not re- 
 ceive his or her share of the surplusage, until a refunding 
 bond has been given for the security of the remainder- 
 man. 
 
 3d. Under the 47th section of the same act, which re- 
 lates to distribution by executors, and provides that 
 security shall be given by the recipients as in distribution 
 under the 45th section. 
 
 4th. Under the 49th section of the same act, which 
 provides for the security of the remainder-man when the 
 decedent had made a bequest for like term of years, or in 
 a contingency. As to this section see King v. Diehl, 9 
 Sergeant & Rawle, 423. 
 
 5th. Under the 52d section of the same act, which 
 provides for security to be given by legatees, before exe- 
 cution on any judgment obtained by them to recover their 
 legacies. 
 
 The 57th section of the same act provides that execu- 
 tors and administrators shall not be liable when security 
 is taken as aforesaid, and the 58th section provides that 
 they may make distribution without applying to court, 
 but at their own risk. 
 
 6th. Under the 61st section of the same act, which 
 provides for security to be given by the legatee when the 
 real estate on which the legacy is a lien, is in another 
 county. 
 
SEC. V.J POWER, DUTIES, AND BIGHTS OF GUARDIANS. 67 
 
 7th. Under the 1st section of the Act of 13 April, 
 1859, Pamphlet Laws, 604, which provides as follows for 
 a refunding bond to be given by a ward to his guardian. 
 
 "Where any executor, administrator or guardian has been required, or here- 
 after shall be required upon the receipt of money, to give a refunding bond as 
 required by law, it shall be lawful for such executor, administrator or guardian 
 upon paying over such money to creditors, heirs, legatees or ward, to require 
 under the direction of the Orphans' Court, a bond, refunding receipt or other 
 obligation from the person or persons receiving the money, to indemnify such 
 executor, administrator or guardian to the amount each one may receive." 
 
 This section was amended by the 1 st section of the Act 
 of 10 June, 1881, Pamphlet Laws, 106, by adding thereto 
 as follows : 
 
 " And whenever such ward has reached lawful age and is a married woman, 
 it shall be competent for her, either in person or by attorney, to sign, seal and 
 deliver her own refunding bond to such guardian or his legal representative, 
 with the same effect as if she were unmarried, and were receiving directly from 
 the executor or administrator." 
 
 As to the Amount of the Bond of Security. 
 
 In fixing the amount of a guardian's bond, it is the 
 proper and usual practice to take into consideration the 
 amount of the personal estate, or the rental of the real 
 estate. See Lloyd v. Commonwealth, 35. Legal Intelli- 
 gencer, 171. And in Philadelphia the practice is to 
 require security in double the amount of the personal 
 property, which may probably come into the hands of 
 said guardian. See Rules, edition of 1883, VI., section 3. 
 
 It was held in the case of Commonwealth v. Pray, 1 
 Philadelphia, 58, as follows : 
 
 1st. A guardian's bond filed in the Orphan's Court, 
 under the Act of 29 March, 1832, is in trust for all persons 
 interested ; in a suit upon it therefore, by one of the parties 
 in interest, profert is dispensed with, as the bond is not 
 in the custody of the plaintiff. 
 
 2d. In a suit against the representatives of a deceased 
 
OF GUARDIAN AND WARD. 
 
 obligor, it should be averred that he was alive when the 
 instrument was executed ; if this be not alleged, it is 
 ground for special demurrer. 
 
 3d. In the suit on the bond of a guardian, under the 
 8th section of the Act of 29 March, 1832, the partic- 
 ular breach for which redress is sought should be set 
 out with certainty and precision, and in accordance with 
 the provisions of the Act of 14 June, 1836, should point 
 directly and explicitly to the condition of the bond which 
 had been violated. When, therefore, two breaches are 
 alleged : First, not delivering up the property of the ward 
 agreeably to the decree of the Orj^hans' Court; and 
 secondly, not faithfully performing in all respects, the 
 duties of guardian, etc., the pleading is vicious, and de- 
 fendant is entitled to judgment on special demurrer. 
 
 4th. AVhen the declaration alleges several distinct 
 breaches of the condition of the bond, and then avers by 
 reason of the said breach to which reference was specially 
 had, defendant cannot know upon which breach plaintiff 
 relies, and the declaration is therefore bad. 
 
 6th. A guardian, like an administrator or executor, 
 must furnish evidence in his pleadings of his right to sue. 
 
 6th. As by the provisions of the Act of Assembly, in 
 relation to suits on official bonds, judgment is to be 
 given, first for the Commonwealth in the amount of the 
 obligation, and second for the plaintiff for damages and 
 costs ; the declaration should assert a right of action in 
 the Commonwealth, and an omission to do so is bad on 
 demurrer. 
 
 As to the Inventory. 
 
 By the Act of 29 March, 1832, Pamphlet Laws, 192, 
 and supra, section 9, it is made the duty of tlie guardian 
 to file an inventory, and tliis is a duty incumbent on 
 " every guardian of a minor, whether admitted or ap- 
 
SEC. V.J POWER, DUTIES, AND EIGHTS OF GUARDIANS. 69 
 
 pointed by the court, or created by will." And it is 
 stated by the court in Stanton's Estate, 7 Weekly Notes 
 of Cases, 18, that " these duties, we fear, are too often 
 overlooked and neglected, it being considered a sufficient 
 compliance with the law to file 9, final account upon the 
 ward attaining majority." And though this duty be not 
 specifically mentioned in the bond, it is included in the 
 promise that the guardian " shall, in all respects, faith- 
 fully joerform the duties of guardian." The verbiage of 
 the section is as follows : " Every such guardian shall, 
 within thirty days after any property of his ward shall 
 have come into his hands or possession, or into the hands 
 or possession of any person for him, file in the office of 
 the clerk of the court a just and true inventory and state- 
 ment, on oath and affirmation, of all such property or 
 estate." 
 
 As'to the Guardian's Accounts. 
 
 The duty of the guardian to render accounts of the 
 property which has come into his hands, and of his man- 
 agement of the minor's estate, is fully recognized at law 
 and in equity. The Act of 29 March, 1832, Pamphlet 
 Laws, lyl, in sections 8 and 10, supra, comprehends the 
 performance of this duty, and the proper rendering of 
 such, is one of the conditions of the bond under section 
 8, of the act. 
 
 Section 11, of the same act, provides that no guardian 
 shall be discharged from his liability until this duty is 
 performed. Section 10 is as follows : 
 
 " Every such guardian, whether required by the court to give security or not, 
 shall at least once in every three years, and at any other time when so required 
 by the court, render an account of the management of the minor's property 
 under his care, which accounts shall be filed in the office of the clerk of the 
 Orphans' Court for the information of the court and the inspection of all parties 
 concerned; and every-such guardian, unless previously discharged or removed, 
 shall, on the arrival of his ward at full age, settle in the register's office a full 
 and complete account of his management of the minor's property under his care, 
 
70 OF GUARDIAN AND WAED. 
 
 including all the items embraced in each partial settlement, and the decree of 
 the Orphans' Court upon such final accounts shall, like other decrees of the 
 court, be conclusive upon all parties, unless reversed, modified or altered, on 
 appeal." 
 
 Sections 15, 16, and 18 of the same act, provides as 
 follows : 
 
 " No account of an executor, administrator or guardian, shall be confirmed 
 and allowed by the Orphans' Court, except in the cases herein specially pro- 
 vided for, unless it shall appear on the presentation of such account that notice 
 of such presentation has been given, conformably to the directions of the act 
 entitled ' An act relating to registers and registers' courts.' 
 
 " All accounts presented to the Orphans' Court by executors, administrators, 
 guardians or trustees, except partial accounts rendered by guardians in pur- 
 suance of section the tenth of this act, shall, unless it be otherwise agreed by 
 all the parties interested, be examined by the court or referred to suitable per- 
 sons, not exceeding three in nulnber, to be appointed by the said court, or by 
 the parties where they are all present or duly represented, and competent to 
 agree ; and the persons so appointed shall be sworn or affirmed to perform their 
 duties with fidelity, and shall have power to administer oaths and affirmations 
 to parties and witnesses, in all cases referred to them. 
 
 " The amount of interest to be paid in all cases by executors, administrators 
 and guardians, shall be determined by the Orphans' Court, under all the cir- 
 cumstances of the case, but shall not, in any instance, exceed the legal rate of 
 interest for the time being." 
 
 Section 16 supra was altered by the Act of 14 April, 
 1835, Pamphlet Laws, 275, as follows : 
 
 " All accounts presented to the Orphans' Court by executors, administrators, 
 guardians or trustees, shall be examined by the court, and if not excepted to, 
 shall, after due consideration, be confirmed ; but if any person interested in 
 the estate shall except to the account, and all or any of the parties shall desire 
 to refer the accounts to auditors, the court shall decide whether the matters 
 contested call for such reference ; and if they do, the court shall appoint three 
 suitable persons ; or where the parties are all present or duly represented, and 
 competent to agree, and desire a reference, they may appoint auditors ; and 
 the persons so appointed shall be sworn or affirmed to perform their duty with 
 fidelity, and shall have power to administer oaths and affirmations to parties 
 and witnesses in all cases referred to them: Provided, The provisions of this 
 section shall not extend to the city and county of Philadelphia.'' 
 
 The proviso in the latter act was repealed by Act of 
 27 February, 1845, Pamphlet Laws, 69, but the Act of 
 
SEC. V.J POWER, DUTIES, AND EIGHTS OF GUARDIANS. 71 
 
 1845 was repealed by Act of 10 April, 1849, Pamphlet 
 Laws, 620, and the proviso was extended to Montgomery- 
 County by Act of 18 February, 1869, Pamphlet Laws, 
 183. 
 
 By Act of 25 April, 1850, Pamphlet Laws, 572, sec- 
 tion 1 8, the clerks of the Orphans' Courts were required 
 to record all accounts of guardians, etc. 
 
 By the 29th and 30th sections of the Act of 29 March, 
 1832, prothonotaries were required to file extracts of the 
 amount due on a guardian's account, which would there- 
 after become a lien on his real property for five years, 
 and longer if revived by scire facias. 
 
 Under the sections aforesaid, there are two classes of 
 accounts : 
 
 1st. Partial or triennial. 
 
 2d. Final. 
 
 1st. As to partial accounts. 
 
 In regard to the " partial " accounts, they are not neces- 
 sarily simply triennial, as they may be required by the 
 court at any time. 
 
 These accounts may be imjDeached by the ward after 
 his attaining age. See Bowman v. Herr's Executors, 1 
 Penrose & Watts, 282 ; and in the case of Douglas' 
 Appeal, 1 Norris, 169, Judge Sharswood says : 
 
 "All partial accounts of guardians during the minority of the ward, whether 
 filed in the register's office or in the ofiice of the clerk of the Orphans' Court? 
 are not for settlement and confirmation, and even if they go through the forms 
 of a settlement and confirmation, are not conclusive upon the ward." 
 
 See also remarks on the subject in Dietterich v. Heft, 
 5 Barr, 93 ; Yeager'a Appeal, 10 Casey, 177 ; McCor- 
 mick V. Joyce, 7 Barr, 249; Foltz's Appeal, 5 P. F. 
 Smith, 428; Stanton's Estate, 7 Weekly Notes, 18; 
 Landis's Account, 1 Pearson, 401 ; Braining's Estate, 7 
 
72 OF GTJAEDIAN AND WAED. 
 
 Weekly Notes of Cases, 34 ; Seeker's Estate, 3 Weekly 
 Notes of Cases, 391 ; and McMahon's Estate, 14 Ibid., 
 311. 
 
 Where there are several children, it is the duty of the 
 guardian to keep separate accounts with each. Baker v. 
 Richards, 8 Sergeant & Eawle, 12. 
 
 2d. As to the final accounts of guardians. 
 
 When a guardian resigns his trust before the ward 
 attains full age, he must file a final account, and after set- 
 tlement thereof by the court he must pay the balance of 
 the minor's estate in his hands over to his successor. 
 Bean's Account, 3 Luzerne Legal Observer, 6. 
 
 On the settlement of a guardian's account it is the duty 
 of the court to appoint a suitable person to appear and 
 protect the interests of the ward. Grand Army of the 
 Republic v. Wall, 6 Lancaster Bar, 62. 
 
 When a guardian has fairly settled with his ward, after 
 an examination of his accounts by a disinterested party, 
 and the production of his vouchers, he will not be com- 
 pelled, after a lapse of four years, to settle a further 
 account in the Orphans' Court. Lukens's Appeal, 7 
 Watts & Sergeant, 48. 
 
 A settlement between guardian and ward made in 
 good faith and on full deliberation cannot be impeached 
 after the decease of the ward. Hawkins's Aj)peal, 8 
 Casey, 263. 
 
 After a lapse of nineteen years a guardian will not be 
 compelled to settle an account. Cress's Aj-jpeal, 2 Har- 
 ris, 463. 
 
 On the death of a guardian the proper person to file 
 his account is his personal representative, and an appli- 
 cation for a citation should be by a guardian and not by 
 a prochein ami. Stewart's Estate, 3 Weekly Notes of 
 Cases, 476. 
 
 It is the duty of a guardian to settle an account, on his 
 
SEC. V.j POWEE, DUTIES, AND EIGHTS OP GUAEDIANS. 73 
 
 ward's attaining full age, whether specially called on to do 
 it or not. Overboltzer's Estate, 8 Lancaster Bar, 109. 
 
 A guardian's final account must include all the items 
 embraced in former partial accounts. Yeager's Appeal, 
 10 Casey, 173 ; Hughes's Appeal, 3 P. F. Smith, 500. 
 
 It seems that the guardian's account may be re-exam- 
 ined in the Orphans' Court and in the Supreme Court 
 after the ward has come of age in some cases. Blount 
 V. Darrach, 14 Sergeant & Rawle, 184, in note. 
 
 A settlement by a guardian with his ward soon after 
 the arrival of the ward at full age and a payment of a 
 balance to him will not preclude a re-examination of the 
 account on a petition of a review filed in due time. Kin- 
 ter's Appeal, 12 P. F. Smith, 318. 
 
 A release by a ward to his guardian after attaining 
 majority, if given by mistake, will not bar a citation to 
 account. Shannon's Estate, 1 Philadelphia, 299. 
 
 In Article V., section 22, clause 3d of the Constitution 
 of Pennsylvania of 1873, it is provided that accounts 
 filed with the Register or Clerk of the separate Orphans' 
 Court, shall be audited by the court without expense to 
 the parties, except where all parties in interest in a pend- 
 ing proceeding shall nominate an auditor whom the court 
 may in its discretion appoint. 
 
 A guardian will not be surcharged with moneys not 
 received unless in case of fraud or gross negligence. 
 Estate of Sherer Minors, 41 Legal Intelligencer, 125. 
 
 As to the review of a guardian's account: 
 
 Prior to the passage of the Act of 13 October, 1840, 
 Pamphlet Laws, 1, the right to apply to the Orphans' 
 Court for a review of a guardian's accounts was without 
 limit of time. Briggs's Appeal, 5 Watts, 91. It was 
 granted by the equity power of the court. Blount v. 
 Darrach, 14 Sergeant & Rawle, 188, note. See, as to 
 the effect of the act : Bunting's Appeal, 4 Watts & Ser- 
 
74 OF GUARDIAN AND WAED. 
 
 geant, 469 ; Chambers's Appeal, 1 Jones, 436 ; Gillen's 
 Appeal, 8 Weekly Notes, 499. The act is as follows : 
 
 "Section 1. The judges of the Orphans' Court of the Commonwealth of 
 Pennsylvania, within five years after the final decree conSrming the original 
 or supplementary account of any executor, administrator or guardian, which 
 has or may be hereafter passed, as aforesaid, upon petition of review being 
 presented by such executor, administrator or guardian, or their legal represen- 
 tatives, or by any person interested therein, alleging errors in such account, 
 which errors shall be specifically set forth in said petition of review, and said 
 petition and errors being verified by oath or affirmation, said Orphans' Court 
 shall grant a rehearing of so much of said account as is alleged to be error 
 in said petition of review, and give such relief as equity and justice may re- 
 quire by reference to auditors or otherwise ; with like right of appeal to the 
 Supreme Court as in otlier cases, except that the appeal shall be taken under 
 the jirovisions of this act within one year after the decree made on the petition 
 of review : Provided, That this shall not extend to any cause when the balance 
 found due shall have been actually paid and discharged by any executor, ad- 
 ministrator or guardian." 
 
 In regard to limitations fixed by this act, the court be- 
 low, in the case of Weiting v. Nissley, 6 Barr, 142, says : 
 
 " Whatsoever may have been the practice in relation to opening and correct- 
 ing such accounts, and the time during which it would be allowed, we regard 
 the question now settled by the Act of 13 October, 1840." 
 
 And in the case of Kinter's Appeal, 12 P. F. Smith, 
 322, Judge Sharswood says in reference thereto : 
 
 "The object of that act seems to have been to make a bill of review in the 
 Orphans' Court a matter of right, and at the same time prescribe a limitation 
 of time to the exercise of the power." 
 
 Under this act, when a fraud has been committed, the 
 limitation begins to run from its discovery by the injured 
 party. Kuhn's Appeal, 6 Norris, 100. 
 
 The Orphans' Court may entertain the petition after 
 the decree of the Supreme Court confirming the original 
 account. Parker's Appeal, 11 P. F. Smith, 478. 
 
SEC. v.] POWER, DUTIES, AND EIGHTS OF GUARDIANS. 75 
 
 As to the lien of a balance due by a guardian on his 
 real estate : 
 
 In this regard the 29th and 30th sections of the Act 
 of 1832 provide as follows : 
 
 "It shall be the duty of the prothonotary of the Courts of Common Pleas 
 of the respective counties, to file and docket, whenever the same shall be fur- 
 nished by any parties interested, certified transcripts or extracts, of the amount 
 appearing to be due from or in the hands of any executor, administrator, guar- 
 dian or other accountant, on the settlement of their respective accounts in the 
 Orphans' Court, which transcripts or extracts, so filed, shall constitute liens on 
 the real estate of such executor, administrator, guardian or other accountant, 
 from the time of such entry until payment, distribution, or satisfaction ; and 
 actions of debt or scire facias may be instituted thereon, by any person or per- 
 sons interested, for the recovery of so much as may be due to them respectively : 
 Provided, however, That the liens thereby created 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 in tlie courts of com- 
 mon law : And provided further, That in case of an appeal from the Orphans' 
 Court, the liens shall be for no more than for the amount finally found due and 
 decreed in the Supr'eme Court, and it shall be the duty of the prothonotary of 
 the Common Pleas, on such decree of the Supreme Court being certified to him, 
 to enter on his docket the amount so foupd due and decreed by the Supreme 
 Court, and if such amount be greater than that decreed by the Orphans' Court, 
 the lien for such excess shall take effect only from the time of entering the 
 decree of the Supreme Court ; but if the amount be reduced by the final decree 
 of the Supreme 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 the said Court of Common Pleas, the 
 said term of five years shall be counted from the time of such entry. 
 
 " When the executor, administrator, guardian or other accountant shall have 
 fully paid and discharged the amount of such lien, the parties who have re- 
 ceived payment shall acknowledge satisfaction thereof, to the extent of what 
 they have received, on the record of the Court of Common Pleas ; and in case 
 of neglect or refusal so to do, for the space of thirty days after request in writ- 
 ing and tender of all the cost, such party shall forfeit and pay to the party 
 aggrieved, the sum of fifty dollars, absolutely, and any further sum not exceed- 
 ing the amount by such person received, as shall be assessed by a jury on a 
 trial at law ; or the Orphans' Court, on due proof to them made, that the entire 
 amount due from such executor, administrator, guardian or other accountant, 
 according to the final settlement of the said account, has been fully paid and 
 discharged, may make an order for their relief from such recorded lien, which 
 order, being certified to the Court of Common Pleas, shall be entered on their 
 records, and shall enure and be received as a full satisfaction and discharge of 
 such lien." See, in regard to the limitation of five years, Oliver's Appeal, 5 
 Outerbridge, 299. 
 
76 OF GUARDIAN AND WARD. 
 
 As to distribution of the interests of minors by guar- 
 dians amongst them as they come of age. 
 
 The term distribution is in strictness referable to the 
 division of money or personal property, or to the pro- 
 ceeds of real estate, and not to real estate simply, with 
 regard to which the terms " descent" and "partition" are 
 more properly applicable. See Grider v. McClay, 11 
 Sergeant & Rawle, 232 ; in which case it was decided 
 that, where one died intestate seized of land, but not 
 leaving personal estate sufficient to pay his debts, and the 
 land was sold under a decree of the Orphans' Court for 
 that purpose, and a surplus remained, which was paid to 
 the guardians of the intestate's only child who died in 
 infancy, the said surplus was to go to the personal repre- 
 sentative of the infant. 
 
 A guardian may make distribution amongst his wards 
 of the estate without settling his accounts in the Orphans' 
 Court, but in such case he is liable as an administrator 
 would be for an improper distribution. See Flory v. 
 Becker, 2 Barr, 470 ; also section 58 of Act of 24th Feb- 
 ruary, 1834, Pamphlet Laws, 73, relating to executors 
 and administrators. When an account has been settled 
 in the OrjDhans' Court and a balance appears to be in 
 the hands of the accountant, the court has jurisdiction 
 over the distribution. Hood on Executors, 168. 
 
 The general rule in the settlement of the accounts of 
 executors or administrators is as follows : 
 
 1st. The personal estate must be first exhausted, and 
 if sufficient to pay the debts and special legacies of dece- 
 dent the balance is paid over to either the residuary 
 legatee, or if the decedent died intestate to the parties 
 entitled under the intestate Act of 8th of April, 1833. 
 
 2d. If the personal estate be insufficient to pay as 
 aforesaid, resort may be had to the Orphans' Court for 
 
SEC. V.j POWER, DUTIES, AND RIGHTS OF GUARDIANS. 77 
 
 an order to sell sufficient of the real estate, under the 
 Act of 24th February, 1834, Pamphlet Laws, 73. 
 
 3d. If the whole estate be insufficient to pay the debts 
 and special legacies, then the executors or administrators 
 will proceed to pay in full in the order as follows : 
 
 1st. Under the Act of Congress of 3d March, 1797, 
 section 5, all debts due by the decedent to United States : 
 Provided, due notice of such be given to the executor or 
 administrator. United States v. Fisher, 2 Cranch, 391. 
 
 2d. Under the Act of Assembly of 24th February, 
 1834, section 24, which provides for the payment out of 
 a decedent's estate as follows : 
 
 1st. " Funeral expenses, medicine furnished, and med- 
 ical attendance given during the last illness of the dece- 
 dent, and servants' wages not exceeding one year;" if 
 there be not sufficient to pay all of these, then pro rata. 
 
 2d. Rents not exceeding one year. 
 
 8d. "All other debts without regard to the quality of 
 the same, except debts due the Commonwealth, which 
 shall be last paid," and in regard to the latter, if there 
 be not sufficient to pay all, then pro rata ; but it must be 
 remembered that when there are liens on the real estate, 
 these come in first in regard to the money derived from 
 the real estate. Moreover, the Act of 14th April, 1851, 
 Pamphlet Laws, 613, gives a j^reference (except as to 
 liens for purchase-money for the real estate over all of 
 these) to the $300 allowed to the widow and children 
 of the decedent under the said act. 
 
 When there be sufficient to pay all the above men- 
 tioned and a surplus over, it goes either to the residuary 
 legatee if there be a will, or as provided by the intestate 
 Act of 8 April, 1833. 
 
 However, the Act of 9 April, 1872, Pamphlet Laws, 
 47, with the amendment to it of June 13, 1883, Pam- 
 
78 OF GUARDIAN AND WARD. 
 
 phlet Laws, 117, makes money due to servants for services 
 rendered six months prior to the death of decedent, a 
 lien on the real estate of the decedent preferred to other 
 liens of record. See Acts. 
 
 The foregoing relates to the duties of executors and 
 trustees in making distribution, but is instructive to 
 guardians and minors desirous of knowing their rights. 
 
 The rights of a guardian to compensation : 
 
 A guardian is entitled to a fair commission on the 
 moneys of his ward's estate passing through his hands, 
 and those commissions are not to be deducted at the foot 
 of the final account, but from time to time when earned. 
 Say's Executors v. Barnes, 4 Sergeant & Eawle, 114. Nor 
 is he entitled to commission on interest charged against 
 himself Ibid. 
 
 If the estate be small 5 per cent, is a reasonable charge. 
 Pusey V. Clemson, 9 Sergeant & Eawle, 204 ; Askew v. 
 Odenheimer, 1 Baldwin, 380. And in some cases a larger 
 commission may be charged. Askew- v. Odenheimer, 1 
 Baldwin, 380. 
 
 Where a guardian uses money of his ward, and pays 
 her interest thereon, he is her debtor, and is not entitled 
 to charge commissions in his account on these payments. 
 Livingood's Appeal, 2 Pennypacker, 70. 
 
SEC. VI.] THE SURETY IN THE BOND. 79 
 
 SIXTH. 
 
 OF THE SUEETY IN THE BOND. 
 
 t-EOTION VI. 
 
 His Liabilities. 
 
 1st. He may be cited by the Orphans' Court. 
 
 In a case in the Orphans' Court of Philadelphia, it 
 was ordered by the court, that a surety who had become 
 a non-resident, and had no property within the jurisdic- 
 tion of the court, and who had obtained from the guar- 
 dian certain property belonging to the estate, and claimed 
 to be in lawful possession thereof, should surrender the 
 said property to the guardian, if she entered additional 
 security, or, if she failed to give this, to the depositary 
 of the court. Tobin's Estate, 11 Weekly Notes of Cases, 
 483. 
 
 2d. As to the power of the court to release the surety. 
 
 While it is discretionary with the Orphans' Court to 
 exact security from the guardian after his appointment, 
 it has yet no power to release a surety, as the ward has a 
 vested interest in the security. See Rosenbach v. Com- 
 monwealth, .34 Legal Intelligencer, 250 ; also Newcomer's 
 Appeal, 7 Wright, 43. And in this latter case when a 
 bond given had been marked cancelled, it was held not 
 to be error in the Orphans' Court to order the word 
 cancelled to be stricken off. 
 
 In the case of Rosenbach v. The Commonwealth, 34 Le- 
 gal Intelligencer, 250 ; the guardian gave bond with one 
 surety, and subsequently was permitted by the Orphans' 
 Court to withdraw the bond and substitute another with 
 two sureties, afterwards the guardian was discharged and 
 ordered to pay the moneys in his hands to his successor, 
 
80 OF GUARDIAN AND WAED. 
 
 failing to do this, suit was brought against the sureties in 
 the second bond, who defended by alleging that the sub- 
 stitution of the second bond was a nullity, and that the 
 only true and official bond was the first one, judgment 
 was given against the sureties, which was affirmed by the 
 Supreme Court on the ground that the power of the Or- 
 phans' Court to permit further and other securities to be 
 given, protected the second bond. 
 
 In Lloyd v. Commonwealth, 35 Legal Intelligencer, 
 171, the guardian had filed his original bond with 
 three sureties. Subsequently certain real estate belonging 
 to the minors was sold under proceedings in partition, 
 and the guardian was authorized to petition to receive 
 the proceeds and enter another bond. Subsequently the 
 guardian's accounts were adjudicated and a large amount 
 found to be in his hands belonging to the estate, suit was 
 brought for this against the sureties on the first bond, 
 who denied their liability for so much as the guardian 
 had recovered from the sale of the real estate, because 
 special securities had been entered under order of the Or- 
 phans' Court. The Supreme Court, however, held that 
 the sureties in the first bond were liable for the Avhole 
 amount. 
 
 In Blauser v. Deihl, 9 Norris, 350, the guardian re- 
 ceived an order to sell the ward's property for the pur- 
 poses of maintenance, education, and reinvestments, and 
 entered a new bond for the faithful application of the 
 joroceeds vfhich was approved by the Orphans' Court. In 
 the suit subsequently entered, it was held that the sure- 
 ties upon the original bond were not liable for the 
 amount realized by the sale. The distinction between 
 this case and that of Lloyd v. Commonwealth, 35 Legal 
 Intelligencer, 171, was held to be as follows : "In the one 
 case the guardian takes the property by virtue of his 
 original power ; in the other only by virtue of a new 
 
SEC. VI.] THE SURETY IN THE BOND. 81 
 
 power, conferred by the order of sale, and this also distin- 
 guishes the responsibilities of the two classes of sureties; 
 they are independent and their obligations are distinct." 
 See the parallel case of Beale's Executors v. Common- 
 wealth, 17 Sergeant & Rawle, 392, upon the liabilities of 
 sureties on an administrator's bond. 
 
 Where the guardian sold the real estate of wards 
 under one order of the Orphans' Court, but by two sep- 
 arate sales, and entered two different bonds for the ap- 
 plication of the purchase-money derived from each sale, 
 it was held that the surety on the first bond was liable 
 for the amounts realized on both sales, there being no 
 restriction of his liability expressed in the bond. Ruth- 
 erford V. Commonwealth, 7 Weekly Notes of Cases, 534. 
 
 3d. As to actions upon the surety bond. 
 
 No suit against the guardian or the sureties upon the 
 bond can be maintained until the guardian's liability has 
 been fixed in the Orphans' Court, which alone has juris- 
 diction in this regard. Commonwealth v. Raser, 12 P. F. 
 Smith, 436. But where the Orphans' Court has fixed the 
 liability of the guardian by a decree, the security bond 
 may be sued on in the common law courts. Ibid. ; see 
 also Denison v. Cornwell, 17 Sergeant <fe Rawle, 374. 
 
 When a decree was made by the Orphans' Court di^ 
 recting a guardian to pay to his successor a certain balance, 
 which decree had not been appealed from, in a^ suit entered 
 upon the security bond it was held by the Supreme Court 
 that the decree of the Orphans' Court was conclusive and 
 that there could be no defence except payment. Com^ 
 monwealth v. Gracey, 38 Legal Intelligencer, 104 ; 28 
 Pittsburgh L. J., 209. 
 
 When a guardian was appointed for minors resident 
 in another county, which guardian absconded, in a suit 
 against the surety on the bond the plea was that the 
 Orphans' Court had no power to make the appointment 
 
82 OF GUARDIAN AND WARD. 
 
 or to take the bond, it was held by the Supreme Court 
 that the guardian having acted and received money under 
 the appointment, he and his surety were estopped from 
 setting up want of jurisdiction in the court making it. 
 McClure v. Commonwealth, 1 Weekly Notes of Cases, 31. 
 The practice in actions upon guardians' and other official 
 bonds is regulated by the 6th section of Act of 14 June, 
 1836, Pamphlet Laws, 639, as follows : 
 
 " Every bond and obligation which shall be given to the Comtnonwealth hj 
 any public officer, or by any person appointed under authority of law to execute 
 any public trust ; also every bond which shall be given by any executor, admin- 
 istrator, guardian, committee, assignee, receiver or trustee, with intent, in every 
 of the said cases, to secure the faithful execution of the respective offices, em- 
 ployment or trust, and for the use of all such persons and bodies politic and 
 corporate, as may be affected by the official acts or neglect of such officer or 
 person, may be sued and prosecuted in the manner following, to wit : 
 
 "1. The writ shall in such case be issued in the name of the Commonwealth, 
 and the names of the persons by whom the same shall be sued out shall be 
 suggested as plaintiiFs therein, and such persons shall be liable for the costs of 
 the suit, in like manner as plaintiffs in other cases. 
 
 " 2, If two or more persons, having several interests, shall join in suing such 
 writ, it shall be lawful for them to declare separately thereon, and set forth in 
 their declarations I'espectively, the breaches of the condition of such bond or 
 obligation, which shall have been made to their particular injury, or they may 
 join in declaration thereon, and afterwards in their replications, or otherwise, 
 according to the course of practice in like cases, set forth upon the record the 
 breaches of the condition aforesaid. 
 
 '' B. It shall be lawful for any other person to whom a cause of action shall 
 have accrued on such bond or obligation, at any time before judgment, upon a 
 suggestion filed with leave of the court, to be made party plaintiff in such writ, 
 and thereupon, he may declare and set forth the breaches of condition of such 
 bond or obligation, to his particular injury, as aforesaid. 
 
 "4. The obligors in any such bond or obligation may plead performance of 
 the condition thereof, so far as it respects the pei-sons by whom such writ was 
 sued, or any of them, and if such fact be confessed or found, such persons shall 
 be debarred of their action upon that writ. 
 
 " 5. If several persons shall join as aforesaid, in any such writ, and if issues 
 be taken by them separately fi^om each other, against the defendants, it shall be 
 lawful for them to have a separate trial thereof, or at their election, such issues 
 may be tried at the same time, and if they be issues in fact, by one and the same 
 
 jury- 
 
 " 6. The parties to any issue taken as aforesaid, shall be liable for the cost of 
 the trial thereof, in like manner as if they only were parties in the proceeding, 
 
 "7. If judgment, upon all issues taken as aforesaid, be rendered for the de- 
 fendants, such judgments, and the pleadings and proceedings upon which they 
 
SBC. VI.] THE SURETY IH^ THE BOND. 83 
 
 stall be founded, shall not estop, debar or otherwise affect the action which any 
 other person, or body politic or corporate, may at any time have upon such bond, 
 nor shall such judgment debar any action which the said plaintiffs may have 
 therein for any subsequent breach or cause. 
 
 '' 8. If final judgment be rendered against the defendants, upon any issue taken 
 as aforesaid, such judgment shall be as follows, to wit : 
 
 " First, for the Commonwealth, in the amount of such obligation or bond. 
 
 " Second, for the plaintiff in such issue, in the amount of damages assessed, 
 and for the costs accrued between such plaintiff and the defendants. 
 
 " 9. The judgment of the Commonwealth as stforesaid, shall remain for the 
 satisfaction of all persons entitled to the benefit of the bond or obligation upon 
 which it was rendered, and for all and singular, the like uses and purposes ; but 
 the said judgment shall not be a lien upon the real estate of the defendants, 
 unless the Commonwealth shall have commenced the action, nor shall execution 
 h ereof be had, except in the manner hereinafter provided. 
 
 " 10. The judgment for the plaintiff in such issue, as aforesaid, shall be a lien 
 upon the real estate of the defendants, to the amount thereof, and such plaintiff 
 may have execution thereof, on a writ of scire facias, or other action thereon, in 
 like manner as may be had in the case of judgments in other personal actions. 
 
 "11. In all cases where the condition of any such bond shall be broken, after 
 a judgment rendered for the Commonwealth, as aforesaid, it shall be lawful for 
 the party aggrieved, to proceed by a writ of scire facias upon such judgment! 
 suggesting his interest therein, to assess and recover the damages which he shall 
 have sustained, in the manner hereinbefore provided in the case of the breach 
 of the condition of a bond taken to secure the performance of a covenant, after 
 a judgment had upon such bond, 
 
 "12. Every judgment rendered for the plaintiff in any such writ of scire facias 
 shall be of like effect, to all intents and purposes, as judgments obtained by 
 plaintiffs jn other personal actions. 
 
 " 13. It shall be lawful for the sureties in any bond as aforesaid, to pay into 
 court, at any time after suit brought thereon, as aforesaid, the whole amount of 
 the penalty of the bond, with all costs of suit up to that time, and thereupon, 
 they shall be discharged from all further liability by reason thereof ; but nothing 
 herein contained shall debar any person of his action, or of his execution against 
 the ofiicer, trustee, or other person for whom such security was given, for any 
 damages which shall not be paid out of such bond." 
 
 4th. The rights of the surety. 
 
 If the surety has to pay anything upon the surety bond, 
 he is entitled under the general rule of the law to subro- 
 gation to the rights and remedies of the ward, both 
 against his co-surety and the principal. See Hess' Estate, 
 19 P. F. Smith, 272 ; Wright v. Sewing Machine Com- 
 pany, 1 Norris, 80 ; Kelchner v. Forney, 5 Casey, 47 ; 
 Commonwealth v. Cox, 12 Casey, 442. 
 
 In such a case, a decree in the Orphans' Court award- 
 
84 OF GUARDIAN AND WARD. 
 
 ing an attachment against the defaulting guardian, as for 
 contempt in disobeying a former decree, commanding him 
 to pay over a certain sum to the late ward for the use of 
 the paying surety, was affirmed by the Supreme Court. 
 Leiter's Appeal, 10 Weekly Notes of Cases, 225. 
 
 A special remedy is provided by the Act of 29 March, 
 lb32, Pamphlet Laws, 197, in section 28, as follows : 
 
 "Application may be made to the Orphans' Court, or any judge thereof, in 
 the cases mentioned in the twenty-third section of this act, by any surety in the 
 bond of such executor, administrator or guardian, and upon such surety makinn 
 oath or affirmation, as required in that section, the like proceedings may be had 
 for the purpose of compelling such executor, administrator or guardian to give 
 security, and thereupon the court may order such ^executor, administrator of 
 guardian to give such counter-securities at they shall judge necessary to indem- 
 nify him against loss by reason of his suretyship ; and if such executor, admin- 
 istrator, or guardian 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 direc* 
 such executor, administrator or guardian, to pay, or deliver over forthwith to 
 such surety, or to some other person for him, all goods, chattels, effects and 
 securities whatsoever, for which such surety may be accountable : Provided, 
 That such surety shall first give, to the satisfaction of the court, sufficient secur- 
 ity, faithfully to preserve and account therefor, and deliver and dispose of the 
 same according to the order of the said court. 
 
 The 23d section above referred to was as follows: 
 
 " If such executor, administrator or guardian shall neglect or refuse to give 
 such security or such further security so ordered, then the said court shall vacate 
 such letters testamentary or of administration, or remove such guardian, and 
 award new letters, to be granted in such form as the case may require, by the 
 register having jurisdiction upon such security as the court shall think proper ; 
 and in the case of a guardian, the court shall proceed to the admission or the 
 appointment of a new guardian, according to the circumstances of the case; and 
 the said court shall moreover order the first executor, administrator or guardian 
 to deliver over and pay to his successor all and every tlie goods, chattels and 
 estates in his hands, of the decedent or minor, as the case may be." 
 
 It is evident that the 28th section intended to refer to 
 the 22d section instead of the 28d ; for the reading of 
 the 22d section see supra, page 59. 
 
 As to forms of bonds and more detailed information 
 on the subject herein sketched, the student is referred to 
 Orphans' Court Practice, by Judge Rhone. 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 85 
 
 SEVENTH. 
 
 Section VII. 
 
 Of the Acquisition, Partition, Mortgaging, and Sale of 
 Ward's Property. 
 
 There are but two ways of acquiring property by a 
 minor, to wit : 
 
 1st. By descent, which is where property is vested in 
 the minor by the operation of law, on the death of his 
 ancestor or relative under the intestate laws. 
 
 2d. By purchase, which is where the property is vested 
 in the minor by his own acceptance of the act of another 
 — the word purchase comprising title as follows : 
 
 (1.) By escheat. 
 
 (2.) By occupancy. 
 
 (3.) By prescription. 
 
 (4.) By forfeiture. 
 
 (5.) By alienation, which last is, as relates to a minor, 
 where the property is acquired by either gift, deed, will, 
 or devise. 
 
 These means of acquiring property will be treated of 
 at length in the second book of these Commentaries, 
 wherein will be set forth the difference between personal 
 property and real property, the former of which, when 
 derived from an intestate decedent, passes to a minor 
 through the medium of the administrator of such de- 
 cedent, and when derived from a testate decedent, gen- 
 erally through the medium of the executor named in 
 the will. As to the real property when derived from an 
 intestate parent or other relative, the same passes direct 
 to the minor (unless subject to partition), and should be 
 taken charge of by the minor's guardian ; when derived 
 
86 OF GUARDIAN AND WARD. 
 
 from a testate parent or other party, it will pass to the 
 minor as provided for in the will of the testator. 
 
 Title by Descent. 
 
 By the 6th section of the charter to William Penn, A. 
 D. 1681, it was provided that the laws governing prop- 
 erty in regard to its descent and succession should be as 
 in England, until altered by William Penn, his heirs or 
 assigns, and by the freemen of the said province ; conse- 
 quently, at that time, lands descended according to the 
 course of the common law — that is to say, in favor of the 
 eldest son, who took all the land to the exclusion of the 
 other children, but subject to the right of dower of the 
 widow. 
 
 This, however, was soon changed, as by the Act of 
 March, 1683 (110 law), Duke of York's Laws, 142, a 
 different provision was made, and by the Act of May, 
 1684 (172 law), Duke of York's Laws, 174, the eldest 
 son became entitled only to a portion double that of the 
 other children. Other intestate acts were passed in 1688, 
 1693, 1694, 1697, 1700, 1705, and 1764, all of which 
 are referred to in 3 Smith's Laws, 154, to which the 
 reader is referred ; but the eldest son's portion remained 
 to be the double until the passage of the Act of 19th 
 April, 1794, 3 Smith's Laws, 143, when the portion of 
 the eldest son was reduced to an equality with those of 
 the other children. It will be well for the student to 
 read the notes to the above act, which are most interest- 
 ing as showing how the law of descents was in Pennsyl- 
 vania up to that time. 
 
 In regard to the acts of Assembly now in force regu- 
 lating intestates' estates, they are as follows; 
 
 1st. The revised Act of 8th April, 1833, Pamphlet 
 Laws, 316. 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 87 
 
 2d. The Act of 11th April, 1848, Pamphlet Laws, 537, 
 sections 9 and 10. 
 
 3d. The Act of 27th April, 1855, Pamphlet Laws, 
 368, sections 2 and 8. 
 
 4th. The Act of 4th May, 1855, Pamphlet Laws, 431, 
 sections 1, 2, 5, and 8. 
 
 5th. The Act of 14th April, 1857, Pamphlet Laws, 
 507, section 1. 
 
 6th. The Act of 17th April, 1869, Pamphlet Laws, 
 71, section 1. 
 
 7th. The Act of 20th April, 1869, Pamphlet Laws, 
 77, section 1. 
 
 8th. The Act of 5th June, 1883, Pamphlet Laws, 88, 
 section 1. 
 
 Act of 8th April, 1833, Pamphlet Laws, 316. 
 
 An Act relating to the descent and distribution of the estates of intestates. 
 
 Section I. 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 otherwise limited by marriage set- 
 tlement, shall be divided and " enjoined " [enjoyed] as follows, viz. . 
 
 Article I. Where such intestate shall leave a widow and issue, the widow 
 shall be entitled to one-third part of the real estate for the term of her life, and 
 to one-third part of the personal estate absolutely. 
 
 Article II. Where such intestate shall leave a widow and collateral heirs, or 
 other kindred, but no issue, the widow shall be entitled to one-half part of the 
 real estate, including the mansion house and buildings appurtenant thereto, for 
 the term of her life, and to one-half part of the personal estate absolutely. 
 
 Article III. Where such intestate shall leave a husband, he shall take the 
 whole personal estate, and the real estate shall descend and pass as is herein- 
 after provided, saving to the husband his right as tenant by the courtesy, 
 which shall take place, although there be no issue of the marriage, in all cases 
 where the issue, if any, would have inherited. 
 
 Section II. Subject to the estates and interests hereinbefore given to the 
 widow or surviving husband, if any, the real estate of such intestate shall de- 
 scend to, and the personal estate not otherwise hereinbefore disposed of shall 
 be distributed among his issue, according to the following rules and order of 
 succession, viz. : 
 
 Article I. If such intestate shall leave children, but no other descendant 
 being the issue of a deceased child, the estale shall descend to and be distributed 
 among such children. 
 
 Article II. If such intestate shall leave grandchildren, but no child or other 
 
00 or GUARDIAN AND TVARD. 
 
 descendant being the issue of a deceased grandchild, the estate shall descend 
 to and be distributed among such grandchildren. 
 
 Article III. If such intestate shall leave descendants in any other degree of 
 consanguinity, however remote from him, and all in the same degree of con- 
 sanguinity to him, the estate shall descend to and be distributed among such 
 descendants. 
 
 Article IV. If such intestate shall leave descendants in different degrees of 
 consanguinity to him, the more remote of them being the issue of a deceased 
 child, grandchild, or other descendant, the estate shall descend to and be dis- 
 tributed among them as follows, viz. : 
 
 A. 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 the intestate. 
 
 B. Each of the grandchildren, if there shall be no children, 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 remotest degree. 
 
 C. In every such case, the issue of such deceased child, grandchild, or other 
 descendant, shall take, by representation of their parents respectively, such 
 share only as would have descended to such parent, .... if they had been 
 living at the death of the intestate. 
 
 Section III. In default of issue as aforesaid, and subject also as aforesaid to 
 the estates and interests hereinbefore given to the widow or surviving husband, 
 if any, the real estate shall go to the father and mother of such intestate, 
 during their joint lives and the life of the survivor of them ; and the personal, 
 estate, not otherwise hereinbefore disposed of, shall be vested in them abso^ 
 lutely, or, if either the father or mother be dead at the time of the death of the 
 intestate, the parent surviving such intestate shall enjoy such real estate during 
 his or her life, and such personal estate absolutely. 
 
 Section IV. In default of issue as aforesaid, and subject to the estates and 
 interests hereinbefore given to the widow or surviving husband, father, and 
 mother, of the intestate, if any, the real estate shall descend to, and the per- 
 sonal estate not otherwise hereinbefore disposed of shall be distributed among 
 the collateral heirs and kindred of such intestate, according to the following 
 rules and order of succession, viz. : 
 
 I. If such intestate shall leave brothers and sisters or either of the whole 
 blood, and no nephew or niece, being the issue of a deceased brother or sister 
 of the whole blood, the real estate shall descend to and vest in such brothers 
 and sisters. 
 
 II. If such intestate shall leave neither brother nor sister of the whole blood, 
 but nephews, " or " nieces, being the children of such deceased brother or sis- 
 ter, the real estate shall descend to and vest in such nephews and nieces. 
 
 III. If such intestate shall leave brothers or sisters of the whole blood, and 
 also nephews or nieces, being the children of any such deceased brother or 
 sister, the real estate shall descend to and vest in such brothers and sisters and 
 nephews and nieces, as follows, viz. ; Every such brother and sister shall receive 
 such share as he or she would have received, if all the brothers and sisterswho 
 shall then be dead, leaving children, had been living at the death of the intes- 
 tate, and such nephews and nieces shall take by representation of their parents 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 89 
 
 respectively, such share only as would have descended to such parents if they 
 had been living at the death of the intestate. 
 
 IV. If such intestate shall leave neither brother nor sister of the whole 
 blood, nor any nephew or niece being the child of such deceased brother or 
 sister, the real estate shall descend to and vest in the next of kin of such intes- 
 tate being the descendants of his brothers and sisters of the whole blood. 
 
 V. The personal estate of such intestate, not otherwise hereinbefore disposed 
 of, shall, in the several cases mentioned in this section, be distributed among 
 the brothers and sisters of the intestate, and their issue, in like manner in each 
 of the said cases as is provided for the descent and division of the real estate of 
 the intestate, but without any distinction of blood. 
 
 Section V. In default of issue, and brothers and sisters of the whole blood 
 and their descendants as aforesaid, and subject to the estates and interests here- 
 inbefore given to the widow or surviving husband, if any, the real estate shall 
 go to and be vested in the father or mother of the intestate, or, if both be living 
 at the time of his death, in the father and mother for such estate as the " said " 
 intestate had therein. 
 
 Section VI. In default of issue and brothers and sisters of the whole blood 
 and their descendants, and also of father and mother competent by this act to 
 take an estate of inheritance therein, the real estate of such intestate, subject to 
 the life estates hereinbefore given, if any, shall descend to and be vested in the 
 brothers and sisters of the half blood of the intestate and their issue in like 
 manner respectively as is hereinbefore provided for the cases of brothers and 
 sisters of the whole blood and their issue. 
 
 Section VII. In default of all persons hereinbefore described, the real and 
 personal estate of the intestate shall descend to and be distributed among the 
 next of kin to such intestate. 
 
 Section VIII. Provided, That there shall be no representation admitted 
 amongst collaterals, after brothers' and sisters' children. 
 
 Section IX. Provided also, That no person who is not of the blood of the 
 ancestors or other relations from whom any real estate descended, or by whom 
 it was given or devised to the intestate, shall in any of the cases before men- 
 tioned take any estate of inheritance therein, but such real estate, subject to such 
 life estates as may be in existence by virtue of this act, shall pass to and vest 
 in such other persons as would be entitled by this act, if the persons not of the 
 blood of such ancestor or other relation had never existed, or were dead at the 
 decease of the intestate. 
 
 Section X. In default of known heirs or kindred competent as aforesaid, 
 the real estate of such intestate shall be vested in his widow, or, if such intes- 
 tate were a married woman, in her surviving husband for such estate as the 
 intestate had therein, and in such case the widow shall be entitled to the whole 
 of the personal estate absolutely. 
 
 Section XI. And whereas it is the true intent and meaning of this act that 
 the heir at common law shall not take in any case to the exclusion of other 
 heirs and kindred standing in the same degree of consanguinity with him to 
 the intestate, it is hereby declared that, in every case which may arise not ex- 
 pressly provided for by this act, the real as well as the personal estate of an in- 
 testate shall pass to and be enjoyed by the next-of-kin of such intestate, with- 
 
90 OF GUAEDIAN AND WARD. 
 
 out regard to the ancestor or other relation from whom such estate may have 
 come. 
 
 Section XII. In default of all such known heirs, or kindred, widow or sur- 
 viving husband as aforesaid, the real and personal estate of such intestate shall 
 go to and be vested in the common wealth by escheat. 
 
 Section XIII. Descendants and relatives of an intestate, begotten before 
 his death and born thereafter, shall in all cases inherit and take in like man- 
 ner as if they had been born in the lifetime of such intestate. 
 
 Section XIV. Wherever, by the provisions of this act, it is directed that 
 real or personal estate shall descend to or be distributed among several per- 
 sons, 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 be more than one, they shall 
 take in equal shares, and, if real estate, shall hold the same as tenants in com- 
 mon. 
 
 Section XV. 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. 
 
 Section XVI. If any child of an intestate shall have any estate by settle- 
 ment of such intestate, or shall have been advanced by him in his lifetime, 
 either in real or personal estate, to an amount or value equal to the share which 
 shall be allotted to each of the other children of such intestate, such child shall 
 have no share of the real or personal estate of such intestate, and if such settle- 
 ment or advancement be to an amount or value less than the share to which he 
 would otherwise be entitled if no such advancement had been made, then so 
 much only of the real and personal estate of such intestate shall be allotted to 
 such child as shall make the estate of all the said children to be equal as near 
 as can be estimated. 
 
 Section XVII. The provisions of this act relative to descent and distribu- 
 tion of real and personal estate among the descendants and collateral relations 
 of intestates shall be construed to mean such persons only as may have been 
 born in lawful wedlock. 
 
 ■ Section XVIII. The residue of the proceeds of the sale of any real estate 
 of an intestate, made by authority of law for the payment of debts, shall vest 
 in the persons entitled by this act to such real estate, in such proportions and 
 for the like interests respectively as they may have had in such real estate. 
 
 Section XIX. 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 for ever : 
 Provided, That, if any such relation or person shall, at the time of the decease 
 of the intestate, be within the age of twenty-one years, or a married woman, 
 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 or discov- 
 erture. 
 
 Section XX. Nothing in this act contained relative to " a'' distribution of 
 personal estate among kindred shall be construed to extend to the "personal 
 estate of an intestate whose domicil at the time of his death was out of this 
 commonwealth. 
 
 Section XXI. This act shall take effect from and after the first day of Octo- 
 ber next, and so much of any act of Assembly as is hereby altered or supplied 
 
SEC. VII.J ACQUISITION, PARTITION, MORTGAGING, ETC. 91 
 
 is repealed from and after said day, except so far as may be necessary to com- 
 plete the settlement and disposition of the estate of any person who may have 
 died before that time. 
 
 Act of 11th April, 1848, Pamphlet Laws, 537. 
 
 Section IX. When any married woman, possessed of separate personal 
 property as aforesaid, shall die intestate, her husband shall be first entitled to 
 letters of administration on her estate, which said estate shall be distributed as 
 follows : If such married woman shall leave no children, nor the descendants 
 of such living, the husband shall be entitled to such personal estate absolutely ; 
 if such married woman shall leave a child, or children living, her personal es- 
 tate shall be divided amongst the husbaijd and such child or children, share 
 and share alike ; if any of such child or children being dead, shall have left 
 issue, such issue shall be entitled to the share of the parent. 
 
 Section X. The real estate of such married woman, upon her decease, shall 
 be distributed as provided for by the intestate laws of this commonwealth now 
 in force: Provided, That nothing contained in this act shall be deemed or taken 
 to deprive the husband of his right as tenant by courtesy. 
 
 Act of 27th April, 1855, Pamphlet Laws, 368. 
 
 Section II. Amongst collaterals, when by existing laws entitled to inherit, 
 the real and personal estate shall descend and be distributed among the grand- 
 children of brothers and sisters, and the children of uncles and aunts, by rep- 
 resentation, such descendants taking equally among them such share as their 
 parent would have taken if living. 
 
 Section III. Illegitimate children shall take and be known by the name of 
 their mother, and they and their mother shall respectively have capacity to 
 take or inherit from each other, personal estate, as next of kin, and real estate, as 
 heirs in fee simple ; and, as respects said real or personal estate so taken and 
 inherited, to transmit the same according to the intestate laws of this State. 
 
 Act of 4th May, 1855, Pamphlet Laws, 430. 
 
 Section I. The power of any married woman to bequeath or devise her 
 property by will shall be restricted, as regards the husband, to the same extent 
 as the husband's power so to dispose of his property is restricted, as regards the 
 wife, namely : so that any surviving husband may, against her will, elect to 
 take such share and interests in her real and personal estate as she can, when 
 surviving, elect to take against his will in his estates, or otherwise to take only 
 as tenant by the courtesy : Provided, That nothing herein contained shall affect 
 the right or power of the wife, by virtue of any authority or appointment, con- 
 tained in any deed or will, to grant, bequeath, devise as heretofore, any prop- 
 erty held in trust for her sole and separate use. 
 
 Section II. Whensoever any husband, from drunkenness, profligacy, or 
 other cause, shall neglect or refuse to provide for his wife, or shall desert her, she 
 shall have all the rights and privileges secured to a feme sole trader, under the 
 Act of the 22d of February, 1718, entitled " !A.n act concerning /erne soie traders," 
 
92 OF GUARDIAN AND WARD. 
 
 and be subject aa, therein provided. And her property, real and personal, how- 
 soever acquired, shall be subject to her free and absolute disposal during life, 
 or by will, without any liability to be interfered with or obtained by such hus- 
 band, and, in case of her intestacy, shall go to her next of kin, as if he were 
 previously dead. 
 
 Section V. No husband, who shall have as aforesaid, for one year or upwards 
 previous to the death of his wife, wilfully neglected or refused to provide for 
 his wife, or shall have, for that period or upwards, wilfully and maliciously 
 deserted her, shall have the right to claim any right or title in her real or per- 
 sonal estate after her decease, as tenant by the courtesy, or under the intestate 
 laws of this commonwealth. 
 
 Sbction VII. It shall be lawful for any person, desirous of adopting any child 
 as his or her heir, or as one of his or her heirs, to present his or her petition 
 to such court in the county where he or she may be resident, declaring such 
 desire, and that he or she will perform all the duties of a parent to such child. 
 And such court, if satisfied that the welfare of such child shall be promoted by 
 such adoption, may, with the consent of the parents or surviving parent of such 
 child, or, if none, of the next friend of such child, or of the guardians or over- 
 seers of the poor, or of such charitable institution as shall have supported such 
 child for at least one year, decree that such child shall assume the name of the 
 adopting parent, and have all the rights of a child and heir of such adopting 
 parent, and be subject to the duties of such child, of which the record of the 
 court shall be sufficient evidence : Provided, That if such adopting parent shall 
 have other children, the adopted shall share the inheritance only as one of 
 them in case of intestacy, and he, she, or they shall respectively inherit from 
 and through each other, as if all had been the lawful children of the same 
 parent. 
 
 Act of 14th April, 1857, Pamphlet Laws, 507. 
 
 Section I. In any and every case where the father and mother of an illegit- 
 imate child or children shall enter into the bonds of lawful wedlock and co- 
 habit, such child or children shall thereby become legitimated, and enjoy all 
 the rights and privileges, as if they had been born during the wedlock of their 
 parents. 
 
 Act of 17th April, 1869, Pamphlet Laws, 71. 
 
 Section I. Whenever any cestui que trust has heretofore, or shall hereafter 
 die intestate, without heirs or any known kindred, a widow or surviving hus- 
 band, the beneficial interest of such cestui que trust in any property or effects, 
 real, personal, or mixed, shall escheat to the commonwealth, subject to all legal 
 demands on the same. 
 
 Act of 20th April, 1869, Pamphlet Laws, 77. 
 
 Section I. In case any person has died, or shall hereafter die, leaving a 
 widow and a last will and testament, and such widow shall elect not to take 
 under the will, in lieu of dower at the common law, as heretofore, she shall be 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 93 
 
 entitled to such interest in the real estate of her deceased husband as the 
 widows of decedents dying intestate are entitled to under the existing laws of 
 this commonwealth. 
 
 Act of 5th June, 1883, Pamphlet Laws, 88. 
 
 Section I. That illegitimate children, born of the same mother, and leaving 
 neither mother nor issue capable of inheriting surviving, shall have capacity to 
 take and Inherit from each other personal property as next of kin, and real es- 
 tate as heirs in fee simple, in the same manner as children born in lawful wed- 
 lock. This act shall apply to all cases now pending, where the estate of such ille- 
 gitimate has not been actually paid to, and received by the commonwealth, as 
 well as to all such cases happening after the passage of this act. 
 
 In regard to decisions on the foregoing acts, I will only- 
 mention a few, viz. : 
 
 (1.) Estates tail are not within the intestate acts, but 
 descended to the heir at common law. Guthrie's Ap- 
 peal, 1 Wright, 9. 
 
 (2.) Real estate vested in a trustee for a wife not 
 subject to the control of the husband descends to the heirs 
 of the wife, excluding the husband from the courtesy. 
 Eigler v. Cloud, 2 Harris, 361. 
 
 (3.) Where a testator makes no disposition of his 
 residuary estate, it passes under the intestate laws. 
 Hoofiher v. Wynkoop, 1 Outerbridge, 130. 
 
 (4.) Grandchildren whose father died before the in- 
 testate take by representation, subject to the indebtedness 
 of their deceased parent to the estate of the deceased in- 
 testate. Hughes's Appeal, 7 P. F. Smith, 179. 
 
 (5.) Nephews and nieces take per capita, and when a 
 nephew or niece be deceased the children of such take 
 amongst them the share of the deceased parent. Krout's 
 Appeal, 10 P. F. Smith, 380. 
 
 (6.) A mother cannot inherit from a daughter lands 
 which descended from the father where there exists one 
 of the father's blood, as she is not of the blood. Mc- 
 Williams v. Eoss, 10 Wright, 369. 
 
 (7.) Where an intestate leaves only a widow she will 
 
94 or GUARDIAN AND WAED. 
 
 inherit under the 10th section of the Act of 1833. Broad 
 Top Coal and Iron Company v. Riddlesburg Coal and 
 Iron Company, 15 P. F. Smith, 435. 
 
 (8.) Grandparents inherit personal estate in preference 
 to uncles or aunts, and are liable for collateral inheri- 
 tance-tax. McDowell V. Addams, 9 Wright, 430. 
 
 (9.) Before the Act of 27th April, 1855, the children 
 of a deceased uncle or aunt did not inherit, if an uncle 
 or aunt was still living. Parr v. Bankhart, 10 Harris, 
 291. 
 
 (10.) When all the heirs are equally related to the 
 intestate, each takes in his own right ; but when not, the 
 more remote takes the share which the deceased parent 
 would have taken. Miller's Appeal, 4 Wright, 387. 
 
 (11.) The estate of an intestate will not escheat to the 
 commonwealth for want of heirs of the blood of the an- 
 cestor, so long as there be a next of kin to the intestate. 
 Dowell V. Thomas, 1 Harris, 41. 
 
 (12.) The real estate of an intestate, coming on the 
 part of his father, descends to the next of kin on the 
 father's side to the exclusion of the maternal kindred. 
 Bevan v. Taylor, 7 Sergeant & Eawle, 397 ; Lewis v. 
 Gorman, 5 Barr, 164. 
 
 As to other decisions on the subject, see " Orphans' 
 Court Practice in Pennsylvania," by Judge Rhone. 
 
 Since the Acts of 27th April, 1855, and 5th June, 
 1883, supra, illegitimates are capable of inheriting from 
 their mother and from each other. 
 
 When real estate descends to a xninor, it is the duty of 
 the guardian (unless the occupancy thereof pertains to 
 the father as tenant by the courtesy) to enter into posses- 
 sion and lease the same. 
 
 Title by Purchase. 
 
 The minor may acquire property by purchase, and 
 this though possible by occupancy or by prescription or 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 95 
 
 forfeiture, as when an estate is vested in a widow, to be 
 enjoyed by her during her widowhood only, and she for- 
 feits the same by marrying again, but as a general rule 
 the only way a minor acquires property by purchase is 
 by alienation, to wit : 
 
 1st. By gift as to personal property. 
 
 2d. By conveyance as to real estate. 
 
 3d. By will or devise as to either personal or real 
 property. 
 
 It is true that a minor may purchase land with his 
 own earnings, but when he becomes of age he may avoid 
 the purchase, and refuse to pay the part of the purchase- 
 money unpaid. 
 
 A guardian cannot make use of the ward's money in 
 the purchase of real estate, unless when authorized by 
 the proper court under the 2d section of Act of 13th 
 April, 1854, Pamphlet Laws, 368. 
 
 Investments of " trust " moneys were authorized to be 
 made in certain stocks and in real securities by the 14th 
 section of the Act of 29th March, 1832, Pamphlet Laws, 
 190, and this authority was subsequently extended to 
 other securities by Acts of 8th April, 1851, Pamphlet 
 Laws, 365, 9th April, 1856, Pamphlet Laws, 275, 14th 
 February, 1863, Pamphlet Laws, 45, 23d March, 1865, 
 Pamphlet Laws, 716, Is^ April, 1870, Pamphlet Laws, 
 45, 10th June, 1871, Pamphlet Laws, 386, 2'dth 3farch, 
 1872, Pamphlet Laws, 31, 2d April, 1873, Pamphlet 
 Laws, 59, 4th April, 1873, Pamphlet Laws, 59, and 8th 
 May, 1876, Pamphlet Laws, 133 ; but the Constitution 
 of 1874, in Article III., section 22, prohibits the invest- 
 ment of trust-funds in the bonds or stocks of private cor- 
 porations, so that such investments can now only be 
 made as follows : 
 
 1st. Under the provisions of the 14th section of the 
 Act of 29th March, 1832, Pamphlet Laws, 190. 
 
96 OF GUAKDIAN AND WARD. 
 
 2d. Under the provisions of the 11th section of the 
 Act of 8th April, 1851, Pamphlet Laws, 365. 
 
 3d. Under the provisions of the 1st section of the Act 
 of 9th April, 1856, Pamphlet Laws, 275. 
 
 4th. Under the provisions of the 1st section of the Act 
 of 14th February, 1863, Pamphlet LaAvs, 45. 
 
 5th. Under the provisions of the 1st section of the Act 
 of 23d March, 1865, Pamphlet Laws, 716. 
 
 6th. Under the provisions of the 1st section of the Act 
 of 10th June, 1871, Pamphlet Laws, 386. 
 
 7th. Under the provisions of the 1st section of the Act 
 of 2d April, 1873, Pamphlet Laws, 59. 
 
 8th. Under the provisions of the 1st section of the Act 
 of 8th May, 1876, Pamphlet Laws, 133. 
 
 The last act makes it legal to invest funds held by a 
 guardian, executor, administrator, or trustee in bonds or 
 certificates of debts issued by any of the counties, cities, 
 school districts, or municipal corporations of the com- 
 monwealth. 
 
 In regard to investment in real estate, under the Act 
 of 13th April, 1854, supra, the text of the 2d section of 
 the act is as follows : 
 
 " Section 2. It shall and may be lawful for any trustee, committee, guar- 
 dian, or other person, acting in a fiduciary capacity, to invest trust moneys in 
 ground-rents, or other real estate, by leave of the proper court under proceed- 
 ings as aforesaid, as provided by the act to which this is a supplement: Pro- 
 vided, Tliat it shall be the opinion of the court that such investment shall be 
 for the advantage of the estate, and no change be made in the course of succes- 
 sion by such change of investment, as regards the heirs or next of kin of the 
 cestui que trust." 
 
 The Act to which the foregoing was a supplement is 
 that of 18th April, 1853, Pamphlet Laws, 503, which, 
 authorizing sales to be made of a minor's realty in certain 
 cases, provides in the 6th section that the proceeds of 
 such realty shall be substituted for the real estate sold, as 
 regards the enjoyment and ownership, but may be ex- 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 97 
 
 pended for the maintenance and education of the ward, 
 or for the payment of liens on his other real estate. 
 
 It is seen that purchases made under the foregoing 
 acts are rather an exchange of personal property into' 
 real than an acquisition of value. 
 
 Minors may also acquire title to property by legacy or 
 devise. When such occurs by legacy it refers to personal 
 property, and when by devise it relates to real estate. 
 In regard to the control and management of such acqui- 
 sitions, the same is provided for generally by the word- 
 ing of the will, but if there be nothing in this to the con- 
 trary, such property becomes subject to the control of 
 the guardian. 
 
 The right to devise lands in fee simple was, from the 
 time of William the Conqueror to that of Henry VIII., 
 existent only in Kent and some minor localities in Eng- 
 land, but in the reign of the latter monarch, by statute 
 32 Henry VIII., c. 1, explained by statute 34 Henry 
 VIII., c. 5, the right was given to all persons except 
 feme coverts, infants, and idiots to devise two-thirds of 
 the land held by them in chivalry and all held in 
 socage. As tenure in chivalry was reduced to tenure 
 in socage by the statute of Charles II., in 1660, all lands 
 except copyhold became devisable. Consequently, after 
 the charter to Penn, in 1681, all lands in Pennsylvania 
 were devisable, as is seen by the 15th paragraph of the 
 laws agreed upon in England, Duke of York's Laws, 100, 
 which provided " that all wills and writing 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, 1 Smith's Laws, 33, concerning wills, 
 which was compiled from the English statute of 29 
 Charles II., c. 3, was affected by the Act of 15th March, 
 1832, Pamphlet Laws, 135, and superseded by the Act of 
 
 7 
 
98 OF GUARDIAN AND WABD. 
 
 8th April, 1833, Pamplilet Laws, 249. Though a chrono- 
 logical synopsis of the acts of Assembly in force now 
 may not be the clearest way of imparting to the student 
 the law on the subject, it is the plan adopted, and as 
 such will be followed. 
 
 Synopsis of the Acts now in force. 
 
 (1.) The Act of 12th March, 1800, 3 Smith's Laws, 
 483, in sections 1, 2, 3, 4, and 6, provided as follows: 
 
 In section 1, that, in cases wherein testators devise 
 their real estate to executors to be sold, in case of the 
 death of one, the remaining may act. 
 
 The 2d section provides, that, where one of the execu- 
 tors' refuses to act, the remaining ones may do so with 
 equal authority. 
 
 The 3d section provides, that, where the executor is 
 dead or has renounced, and letters of administration with 
 the will annexed have been granted, the administrator 
 with the will annexed may exercise the powers delegated 
 to the deceased executor. 
 
 The 4th section provides, that, when an executor has 
 been discharged, the remaining may act, or when all the 
 executors be discharged, the administrator appointed. 
 
 The 5th section provides tha;t nothing in the act shall 
 prevent any testator from providing otherwise by his 
 will. 
 
 (2.) The 10th section of the Act of 13th March, 1815, 
 6 Smith's Laws, 289, provides that any woman divorced 
 for adultery, who shall openly cohabit with the partaker 
 of her crime, shall be incapable of alienating her here- 
 ditaments. 
 
 (3.) The 7th section of the Act of 15th March, 1832, 
 Pamphlet Laws, 136, provides that the register of wills 
 may issue a citation to any person alleged to have posses- 
 
SEC. VII.J ACQUISITION, PARTITIOX, MORTGAGING, ETC. 99 
 
 sion of the will of a decedent, requiring such person to 
 produce the same. 
 
 The 8th section of the same act authorizes the register 
 to issue a citation to any witness to a will, requiring him 
 to appear and testify. 
 
 The 9 th section empowers the register to issue commis- 
 sions to take the testimony of absent witnesses. 
 
 The 10th section provides that no nuncupative will 
 shall be admitted to probate till fourteen days after the 
 death of the decedent be expired, nor unless process have 
 first issued to call in the widow, if any, and such of the 
 relations, or next of kin, as would be entitled to adminis- 
 tration in -case of intestacy. 
 
 The 11th section provides that no testimony shall be 
 received to prove a nuncupative will after six months 
 from the speaking of the testamentary words, unless the 
 testimony were committed to writing within six days after 
 the making of the will. 
 
 The 12th section provides that copies of wills proved 
 in any other State or country, according to the laws thereof, 
 may be offered for probate, and proceedings be had 
 thereon, etc. 
 
 The 17th section provides that al 1 original wills, after 
 probate, and copies of all original wills produced under 
 the provisions of the 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 some 
 higher tribunal, etc. 
 
 (4.) The 1st section of the Act of 8th April, 1833, 
 Pamphlet Laws, 249, provides that every person of sound 
 mind (married women excepted) may dispose by will of 
 his or her real estate, whether such estate be held in fee 
 simple, or for the life or lives of any other person or per- 
 sons, and whether in severalty, joint tenancy or common, 
 and also of his or her personal estate. 
 
100 OF GUARDIAN AND WARD. 
 
 (The exception of married women was done away with 
 by Act of 11th April, 1848, infra.) 
 
 The 3d section of the said Act of 1833 is as follows : 
 " And provided also, That no will shall be effectual 
 unless the testator were, at the time of making the same, 
 of the age of twenty-one years or upwards, at which age 
 the testator may dispose of real as well as personal or 
 mixed property, if in other respects competent to make 
 a will." 
 
 The oth section provides that the emblements on lands 
 held by a widow or other tenant for life, also rents and 
 other periodical payments accruing to a tenant for life 
 or other person entitled by law, may, so far as accrued 
 on the death of sucb tenant, be disposed of by will. 
 
 The 6 th section provides that every will shall be in 
 writing, and, unless the testator be prevented by his last 
 sickness, be signed by him at the end, or by some per- 
 son in his presence and by his direction, and be proved 
 by two or more persons. 
 
 The 7th section provides that personal property may 
 be bequeathed by a nuncupative will under the following 
 restrictions : 
 
 1. Shall be made during the last sickness of the testa- 
 tor in the house of his habitation, or where he has re- 
 sided ten days or more next before making the will, ex- 
 cept when surprised by sickness, being from home, and 
 shall die before returning. 
 
 2. When the value bequeathed exceeds f 100, it shall 
 be proved that the testator at the time did bid the per- 
 sons present, or some of them, to bear witness that such 
 was his will, and this must be proved by two witnesses 
 who were present. 
 
 The 8th section provides that, notwithstanding the act, 
 any mariner at sea, or soldier in actual military service, 
 may dispose of his movables, wages, and personal estate. 
 
SEC. VII.] ACQUISITION, PARTITION, MOETGAGING, ETC. 101 ' 
 
 ■ The 9th section provides that all devises of real estate 
 shall pass the whole estate of the testator in the premises, 
 though there be no words of inheritance or perpetuity, 
 unless it appear in the will that the testator intended to 
 devise a less estate. 
 
 The 10th section provides that real estate, acquired by 
 a testator after making his will, shall pass by a general 
 devise, unless a contrary intention is manifest in the will. 
 
 The 12th section provides that no devise or legacy, in 
 favor of a child or other lineal descendant, shall be 
 deemed to lapse or become void, by reason of the decease 
 of such legatee. 
 
 The 14th section provides that no will in writing con- 
 cerning personal estate shall be repealed, or bequest 
 altered, otherwise than is provided in the case of real 
 estate, except by a nuncupative will committed to writ- 
 ing during the life of the testator, and read to him, and 
 so proved by two witnesses. 
 
 The 15th section provides that when any person shall 
 make his last will and shall afterwards marry, or shall 
 have a child, not provided for in the will, and shall die, 
 leaving a widow and child, though such child shall be 
 born after his death, such person, so far as regards the 
 widow or child, shall be deemed to die intestate. 
 
 The 16th section provides that a will executed by a 
 single woman shall be deemed revoked by her subsequent 
 marriage, and shall not be revived by the death of her 
 husband. 
 
 The 17th section provides that nothing in the act shall 
 be construed to apply to the disposition of personal estate 
 by a testator whose domicil is out of the commonwealth. 
 
 (5.) The 12th section of Act of the 24th February, 
 1834, Pamphlet Laws, 73, provides thatall powers, author- 
 ities and directions, relating to real estate in any will, not 
 given by name or description, shall be deemed to be given 
 
102 OF GTTAEDIAN AND WARD. 
 
 to the executors under the direction of the Orphans' 
 Court. 
 
 The 13th section provides that the executors to whom 
 is given a naked authority to sell real estate shall have 
 full authority as to entry and sale as if Ihe same had 
 been devised to them to be sold, saving to the testator 
 the right to direct otherwise. 
 
 The 14th section provides that the survivor or remain- 
 ing executor — when the devise was for the executors to 
 sell — shall have the same powers as all the executors 
 named would have had. 
 
 The 19th section provides that where any sale shall 
 be made by an authorized executor for any purpose, the 
 purchaser may pay the purchase-money into the Orphans' 
 Court, to be disposed of in accordance with the will. 
 
 (6.) The 2d section of the Act of 6th May, 1844, 
 Pamphlet Laws, 565, provides that no devise or legacy 
 thereafter made in favor of a brother or sister, or of the 
 children of a deceased brother or sister, the testator not 
 leaving lineal descendants, shall lapse by the death of 
 such devisee or legatee, if such leave issue surviving the 
 testator, unless otherwise directed by the testator. 
 
 (7.) The 1st section of the Act of 27th January, 1848, 
 Pamphlet Laws, 16, provides that every will, theretofore 
 or thereafter made, to which the testator's name is sub- 
 scribed by his direction, or to which he has made his 
 mark, shall be valid : Provided, the other requisites be 
 fulfilled. 
 
 (8.) The 7th section of the Act of 11th April, 1848, 
 Pamphlet Laws, 536, provides that any married woman 
 may dispose by will of her separate property, real, per- 
 sonal or mixed, whether the same accrue to her before or 
 during coverture : Provided, the will be executed in the 
 presence of two witnesses, neither of whom shall be her 
 husband, etc. 
 
SEC. VII. J ACQUISITION, PARTITION, MOETG AGING, ETC. 103 
 
 (9.) The llth section of the Act of 26th April, 1855, 
 Pamphlet Laws, 332, provides that no estate shall be 
 bequeathed or devised to any body politic, or to any one 
 in trust for religious or charitable uses, except by deed 
 or will attested by two witnesses one calendar month 
 before the death of the testator, unless for a valuable 
 consideration. 
 
 (10.) The 1st section of the Act of 4th May, 1855, 
 Pamphlet Laws, 430, provides, that the power of a married 
 woman to bequeath or devise her property by will shall 
 be restricted as regards the husband to the same extent 
 as the husband's power to dispose of his property is re- 
 stricted as regards the wife, so that he may, against her 
 will, elect to take such share or interest in her real and 
 personal estate as she can take against his will : Provided, 
 that nothing in the act shall affect her right by virtue 
 of appointment to devise property held for her separate 
 use. 
 
 (Note. — At common law the husband could not by will deprive his wife of 
 her dower, but as seen in the case of Hamilton v. Buckwalter, 2 Yeates, 389, the 
 acceptance of a devise by a wife from a husband was considered a bar to her 
 dower ; however, in the case of Webb v. Evans, 1 Binney, 565, it was held that 
 the devise was not a bar. The 11th section of the Act of 8th April, 1833, Pam- 
 phlet Laws, 249, provides that a devise shall be a bar, unless the testator other- 
 wise provide, so that the wife cannot have both. The act, however, provides that 
 nothing therein contained shall deprive her of her choice. The 11th section 
 of the Act of 11th April, 1848, Pamphlet Laws, 537, provides that when the 
 widow elects to not take under the will of her husband, the so-doing shall not 
 deprive her of her share of her personal estate under the intestate law. There- 
 fore, she gets the life estate in one-third of the realty and her share of the per- 
 sonal estate ; viz., one-third when there be children, one-half when there be 
 none ; and in the same way, under the Act of 1855, the wife cannot by her will 
 deprive her husband of the right to take against her will to the same extent. 
 Dickinson v. Dickinson, 11 P. F. Smith, 401.) 
 
 (11.) The seventh section of the Act of 22d April, 1856, 
 Pamphlet Laws, 533, provides that the probate of a will 
 devising real estate shall be conclusive as to such, unless 
 controverted within five years. 
 
104 OF GUARDIAN AND WARD. 
 
 (12.) The 1st section of the Act of 14th April, 1868, 
 Pamphlet Laws, 97, provides that where, in wills or con- 
 veyances for life or other period of time, any building is 
 devised or set out to any one, without defining the boun- 
 daries of the lot necessary for the enjoyment of the same, 
 the parties may apply to the Orphans' Court for the ap- 
 pointment of commissioners to define the same, 
 
 The 2d section of the act authorizes the court to ap- 
 point three such commissioners. 
 
 The 3d section points out the duties of such commis- 
 sioners. 
 
 The 4th section provides that the costs shall be equally 
 divided amongst the parties. 
 
 (13.) The 1st and 2d sections of the Act of 17th April, 
 1869, Pamphlet Laws, 72, provides that when, in a will 
 directing real estate to be appraised and sold, the testa- 
 tor has not indicated who should make the appraisement 
 thereof, the parties interested may apply to the Orphans' 
 Court, which is authorized to appoint the appraisers. 
 
 The 3d, 4th, 5th, and 6th sections relate to the con- 
 firmation of the appraisement and the award of the real 
 estate, etc. 
 
 (14.) The 1st section of the Act of 4th June, 1879, 
 Pamphlet Laws, 88, provides that every will shall be con- 
 strued, with reference to the estate therein comprised, to 
 take effect as if executed immediately before the death 
 of the testator, unless a contrary intention appear in the 
 will. 
 
 The 2d section provides that all lapsed and void de- 
 vises shall be included in the residuary devise. 
 
 The 3d section provides that a devise of the real estate 
 of a testator and a bequest of the personal estate or of 
 any real or personal estate described in a general man- 
 ner, shall be construed to include any such to which such 
 description shall extend, as the case may be, which he 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 105 
 
 may have power to appoint in any manner lie may think 
 proper, and shall operate as an execution of such power, 
 unless a contrary intention shall appear. - 
 
 As to decisions under the foregoing sections, I will 
 mention but a few, viz. : 
 
 (1.) When a testator leaves stocks, bonds, and other 
 securities, they should, on the demand of the residuary 
 legatee, be distributed without conversion, if such can be 
 done without prejudice. • Reed's Estate, 1 Norris, 428. 
 
 (2.) The only investments that trustees could make, free 
 from risk, were real or government securities, or under the 
 direction of the court. Hemphill's Appeal, 6 Harris, 
 303 ; but see legislative authority to invest in municipal 
 securities, supra. 
 
 (3.) Investments should not be made by a guardian 
 in his own name, but as guardian. Stanley's Appeal, 8 
 Barr, 431. 
 
 (4.) Prior to the Act of 12th March, 1800, when 
 power was given to executors to sell, and they renounced, 
 administrators with the will annexed could not sell. 
 Moody V. Vandyke, 4 Binney, 31. 
 
 (5.) Since the Act of 12th March, 1800, an adminis- 
 trator with the will annexed has the same power as had 
 the executor named. Gideon's Estate, 2 Weekly Notes 
 of Cases, 355 ; Meredith's Estate, 1 Parsons, 433. 
 
 (6.) When executors exceed their powers, their act 
 will be void only as to the excess. Begg's Estate, 23 
 Pittsburgh Law Journal, 85. 
 
 (7.) A will is defined to be the legal declaration of a 
 mall's intentions, which he wills to be performed after 
 his death. Frew v. Clarke, 30 P. F. Smith, 170. 
 
 (8.) A will written and signed with a lead-pencil is 
 valid. Myers v. Vanderbelt, 3 Norris, 510. 
 
 (9.) The legality of the execution of a will is to be de- 
 termined by the requirements of the law as it was at the 
 
106 OF GUARDIAN AND WARD. 
 
 time of its execution. Taylor v. Mitchell, 7 P. F. Smith, 
 209. 
 
 (10.) An infaiit or an idiot cannot make a valid will. 
 West V. West, 10 Sergeant & Eawle, 445. 
 
 (11.) Imbecility of intellect, though short of insanity, 
 may render a person incapable of making a will. Mc- 
 Taggart v. Thompson, 2 Harris, 149. 
 
 (12.) Though the marriage of a single woman invali- 
 dates her will, she may, after marriage, -republish it. 
 Kurtz V. Saylor, 8 Harris, 205. 
 
 (13.) Under the Act of 11th April, 1848, the will of 
 a married woman must be executed in the presence of 
 two witnesses, neither of whom to be her husban'd. Dick- 
 inson V. Dickinson, 11 P. F. Smith, 401. 
 
 (14.) Prior to the Act of 15th April, 1869, Pamphlet 
 Laws, 30, the will of a married woman was invalid if 
 the witnesses were devisees under it. Camp v. Stark, 33 
 Legal Intelligencer, 248 ; 32 P. F. Smith, 235. 
 
 (15.) Prior to the Act of 22d April, 1856, the probate 
 of a will was conclusive as to personalty only. It is since 
 conclusive as to realty, unless contested within five years. 
 Wilson V. Gaston, 11 Norris, 207. 
 
 (16.) Wills of real estate must be executed and proved 
 according to the law of the place where the same is situ-- 
 ate ; of personal estate, according to the law of the coun- 
 try in which the testator is domiciled at the time of his 
 death. Flanery's Will, 12 Harris, 502 ; Carey's Appeal, 
 25 P. F. Smith, 201. 
 
 (17.) A codicil is a written alteration of a will, or ad- 
 dition to it, executed in the manner required by law for 
 wills. Neff's Appeal, 12 Wright, 501. 
 
 (18.) Though the will of a single woman becomes in- 
 valid as a will by her subsequent marriage, circumstances 
 may authorize a court of equity to regard it as an ante- 
 
SEC. VII.J ACQUISITION, PARTITION, MOETGAGING, ETC. 107 
 
 nuptial settlement. Lant's Appeal, 9 "Weekly Notes of 
 Cases, 201. 
 
 (19.) If a man make a will, and marry, and die, leav- 
 ing a widow, and children not provided for in the will, 
 his will is revoked as to them. Edwards's Appeal, 11 
 Wright, 144. 
 
 (20.) The law is that a devisee shall have only the 
 interest which the testator had when he made his will, 
 which continues the same to his death. McTaggart v. 
 Thompson, 2 Harris, 149 ; Balliet's Appeal, Ibid., 451. 
 
 For other decisions, see Rhone's Orphans' Court Prac- 
 tice, titles Investments, Devises, Wills, etc. 
 
 In making wills testators should endeavor to avoid 
 the dangers incidental to the operations of the Rule in 
 Shelley's Case, which, not technically speaking, was, that 
 where land was passed to Jones for life, remainder to 
 Jones's heir or issue, Jones took all the estate the grantor 
 had. Technically speaking, it was : " It is a rule of law 
 that when the ancestor by any gift, or conveyance, takes 
 an estate of freehold, and in the same gift or conveyance 
 an estate is limited, either mediately or immediately, to 
 his heirs, in fee or in tail, that always in such cases the 
 heirs are words of limitation of the estate, and not rules 
 of purchase." The reason of this rule was that, under the 
 feudal system, the tenant in possession owed certain duties 
 to the lord, and could not, by a will creating a new estate, 
 deprive the lord of these. In fact, when an estate is 
 willed to the heir who was entitled to it by the law of 
 descent, it goes to the heir by descent, and not by virtue 
 of the will ; and, though the fruits accruing to the lord 
 by the feudal system have ceased to exist by the obliter- 
 ation of tenure in chivalry, in the time of Charles II., 
 yet the Rule exists in Pennsylvania with the only good 
 results of making an arbitrary rule for the construction 
 of wills by technical words, and, moreover, the more 
 
108 OF GUARDIAN AND WARD. 
 
 .easy transmission of real estate by defeating the intention 
 of encumbering the same with life estates. In many of 
 the States the Rule has been repealed as to devises, and 
 it might be well if the same were done in Pennsylvania. 
 Under the Rule there is great uncertainty as to the mean- 
 ing of the words " issue," " heirs," and even of " chil- 
 dren," in a devise. In the case of Scott v. Wistar, 13 
 Weekly Notes of Cases, 295, "Wistar, Sr., made a will leav- 
 ing a life estate to his daughters in certain real estate, 
 and at their death, the same to pass to the male issue of 
 his son Richard. Richard, Jr., died, leaving two sons 
 and three daughters, one of whom was married to a man 
 named Scott, by whom she had male issue. On the 
 death of the daughters of Wistar, Sr., the two sons of 
 Richard, Jr., entered into possession of the real estate, in 
 which their aunts had a life interest. In the course of 
 time the sons of Scott claimed an interest with their 
 uncles as male issue of their grandfather, Richard, Jr., 
 and the court decided in their favor. It is extremely 
 doubtful that such was the intention of the testator, but 
 the case shows the necessity of explicitness in a will, and 
 the danger to be apprehended from the word " issue," 
 or " children," or " heirs." As a general rule, wills are 
 drawn up by an ignorant testator or by an equally igno- 
 rant conveyancer, and it is really surprising that more 
 contests on the subject do not arise. 
 
 In regard to the word Issue, see " The Word Issue," 
 by E. A. Anderson, and in regard to devises to classes, 
 see " Remainders to Children as a Class," by Walter 
 Murphy. As to the Rule in Shelley's Case, in Pennsyl- 
 vania, see " The Rule in Shelley's Case," by Joseph P. 
 Gross, and Husbands on " Married Women." 
 
 When an estate is acquired by several minors in com- 
 mon, it becomes a subject of partition. The laws regu- 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 109 
 
 lating this are numerous, and of these but a synojDsis 
 will be given. 
 
 Partition. 
 
 The right to a compulsory partition of lands was first 
 introduced into the province of Pennsylvania by the 
 adoption of the statutes of 31 Henry VIII., c. 1, Roberts's 
 Digest, 217, and of 32, Henry VIII., c. 32, Ibid., 224, 
 and is now regulated as to the partition of a decedent's 
 estate amongst his heirs by the following acts, viz. : 
 
 (1.) Act of 29th March, 1832, Pamphlet Laws, 190, 
 sections 36 to 45, inclusive. 
 
 (2.) Act of 24th February, 1834, PamjAlet Laws, 73, 
 sections 41, 42, 44, and 45. 
 
 (3.) Act of 14th April, 1835, Pamphlet Laws, 275, 
 section 2. 
 
 (4.) Act of 13th April, 1840, Pamphlet Laws, 319, 
 sections 2, 3, and 4. 
 
 (5.) Act of 6th April, 1844, Pamphlet Laws, 214, 
 section 1. 
 
 (6.) Act of 15th April, 1845, Pamphlet Laws, 458, 
 section 1. 
 
 (7.) Act of 21st April, 1846, Pamphlet Laws, 426, 
 section 1. 
 
 («.) Act of 13th March, 1847, Pamphlet Laws, 319, 
 section 1. 
 
 (9.) Act of 9th April, 1849, Pamphlet Laws, 527, 
 section 16. 
 
 (10.) Act of 10th April, 1849, Pamphlet Laws, 596, 
 section 10. 
 
 (11.) Act of 25th April, 1850, Pamphlet Laws, 569, 
 sections 2, 5, and 10. 
 
 (12.) Act of 20th February, 1854, Pamphlet Laws, 
 89, section 1. 
 
 (13.) Act of 12th April, 1855, Pamphlet Laws, 214, 
 section 1. 
 
110 OF GUARDIAN AND WARD. 
 
 (14.) Act of 27tli April, 1855, Pamphlet Laws, 369, 
 section 4. 
 
 (15.) Act of lyth April, 1856, Pamphlet Laws, 386, 
 section 1. 
 
 (16.) Act of 22d April, 1856, Pamphlet Laws, 534, 
 section 10. 
 
 (17.) Act of 11th April, 1863, Pamphlet Laws, 341, 
 section 1. 
 
 (18.) Act of 27th April, 1864, Pamphlet Laws, 641, 
 section 1. 
 
 (19.) Act of 27th March, 1865, Pamphlet Laws, 44, 
 section 1. 
 
 (20.) Act of 13th February, 1867, Pamphlet Laws, 
 160, section 1. 
 
 (21.) Act of 20th February, 1867, Pamphlet Laws, 
 30, section 1. 
 
 (22.) Act of 28th April, 1868, Pamphlet Laws, 105, 
 section 1. 
 
 (28.) Act of 26th February, 1869, Pamphlet Laws, 
 4, section 1. 
 
 (24.) Act of 30th March, 1869, Pamphlet Laws, 15, 
 section 1. 
 
 (25.) Act of 26th February, 1870, Pamphlet Laws, 
 256, section 1. 
 
 (26.) Act of 23d May, 1871, Pamphlet Laws, 274, 
 sections 1, 2, and 3. 
 
 (27.) Act of 24th May, 1871, Pamphlet Laws, 1088, 
 section 1. 
 
 (28.) Act of 14th May, 1874, Pamphlet Laws, 156, 
 sections 1, 2, and 3. 
 
 (29.) Act of 8th May, 1876, Pamphlet Laws, 134, 
 sections 1, 2, 3. 
 
 (30.) Act of 8th May, 1876, Pamphlet Laws, 140, 
 section 1. 
 
SBC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. Ill 
 
 (31.) Act of 13th May, 1876, Pamphlet Laws, 172, 
 section 1.. 
 
 (32.) Act of 1st May, 1879, Pamphlet Laws, 40, 
 section 1. 
 
 Synopsis of the Foregoing Sections. 
 
 (1.) The 36th section of the Act of 29th March, 1832, 
 Pamphlet Laws, 190, authorizes the Orphans' Court, on 
 application, to appoint seven or more persons to make 
 partition of the estate of a decedent, and provides that, 
 in case of their inability to agree, the Court may award 
 an inquest to make the partition. 
 
 The 37th section of the same act provides for cases in 
 which the real estate of the decedent cannot be divided 
 in partition without prejudicing the whole. Under this 
 section the seven or more persons, or the inquest, make a 
 just appraisement of the real estate, and then the Or- 
 phans' Court offer it at the appraised price : 1st. To the 
 eldest son, if living, and, if dead, to his children in the 
 order of birth, preferring males to females. Such offer 
 being refused, then, 2d. To the second son, or, if deceased, 
 to his children in like manner, and so on through the 
 male children. If all the males, as aforesaid, refuse, 
 then it is offered to the females in like order, beginning 
 with the eldest. Whoever accepts must pay to the other 
 children their proportionate parts within a reasonable 
 time, giving them security by recognizance. 
 
 The 38th section provides that, where the division can- 
 not be made as aforesaid, the estate may be divided into 
 purparts, as nearly equal in value as possible, and the 
 court may offer such to the children as provided by the 
 37th section, one or more of the purparts to be made sub- 
 ject to the payment of enough money to equalize the 
 portions. 
 
112 OF GITAEDIAN AND WARD. 
 
 The 39th section provides for cases where the estate 
 cannot be divided into as many shares as there are heirs. 
 
 The 40th section provides that in all such cases of ap- 
 praisement the Orphans' Court may grant a rule on the 
 heirs to accept or refuse their shares. 
 
 The 41st section provides that the purpart of the 
 widow, shall not be paid to her, but shall remain a charge 
 on the premises if the whole be taken by one child, and 
 the interest on the same shall be paid by such child to 
 the widow. 
 
 The 42d section provides that, when all the heirs re- 
 fuse to take as aforesaid, the court may direct the execu- 
 tor or administrator to make sale of the real estate. 
 
 The 43d section provides that, in case of a sale as pro- 
 vided by the 42d section, the Orphans' Court shall di- 
 rect that the share of the widow shall remain with the 
 purchaser, who will pay the interest thereon, and, at the 
 death of the widow, the share shall be paid to the per- 
 sons legally entitled thereto. 
 
 The ■l4th section provides for partition when the land 
 lies in different counties. 
 
 The 45th section provides that, where one of the heirs 
 has elected to take the real estate in one county, he shall 
 not have the preference in regard to the land in another 
 county until the other heirs have refused to take the 
 same. 
 
 (2.) The 41st section of the Act of 24th February, 
 1834, Pamphlet Laws, 73, relates to distribution by an 
 administrator, and provides that, if the distributee can- 
 not give security for the refunding a ratable sum in case 
 debts against the decedent's estate shall appear, the 
 money coming to such distributee shall be put out at 
 interest, and the interest thereon paid annually to the 
 distributee. 
 
 The 42d section of the same act provides that, when 
 
SEC. VII.J ACQUISITION, PARTITION, MORTGAGING, ETC. 113 
 
 the real estate of a decedent is sold by an executor or ad- 
 ministrator in partition, the same shall not be liable in 
 the hands of the purchaser to the debts of the decedent, 
 provided the sale has been made after the expiration of 
 two years from the granting of letters testamentary or of 
 administration. 
 
 The 44th section of the same act provides that, when- 
 ever real estate is ordered to be sold in partition, and the 
 executor or administrator fails to execute the order, the 
 Orphans' Court may appoint a person in lieu of such to 
 perform tlieir duty. 
 
 The 45th section of the same act provides that, before 
 the distribution of the proceeds of such sale shall be 
 made, security shall be given by the recipients to refund 
 sufficient to pay any debt that may in future appear 
 against the decedent's estate. 
 
 (3.) The 3d section of the Act of 14th April, 1835, 
 Pamphlet Laws, 275, provides that, in the proceedings 
 in partition and valuation, the parties in interest shall 
 be named when known ; but, if not known, notice shall 
 be given by publication. 
 
 (4.) The 2d section of the Act of 13th April, 1840, 
 Pamphlet Laws, 319, provides that minors, residing out 
 of the State, may, by permission of the Orphans' Court, 
 receive such part of the devise, legacy, or share coming 
 to them as may suffice for their education and mainte- 
 nance. 
 
 The 3d section of the same act confirmed certain pro- 
 ceedings in partition theretofore had. 
 
 The 4th section of the same act extended the jurisdic- 
 tion of the Orphans' Court in partition to cases of tes- 
 tacy, when the heirs or any of them are minors, or when 
 the course of descent is not altered by the decedent's 
 will. 
 
 (5.) The 1st section of the Act of 6th April, 1844, 
 
114 OF GUARDIAN AND WARD. 
 
 Pamphlet Laws, 214, provides that, in cases of partition 
 where the Orphans' Court shall have decreed shares to 
 heirs not residing in the State, with the payment of owelty 
 annexed, the court may order a rule requiring the pay- 
 ment of the owelty. 
 
 (6.) The 1st section of the Act of 15th April, 1845, 
 Pamphlet Tjaws, 468, provides that, when, on proceed- 
 ings in partition, such is made by an inquest appointed by 
 the Orphans' Court, on the refusal of the heirs to accept, 
 the court shall make a decree requiring the executor or 
 administrator to make sale of such unaccepted property. 
 
 (7.) The 1st section of the Act of 21st April, 1846. 
 Pamphlet Laws, 426, provides that nothing contained in 
 the Act of 29th March, 1832, shall be construed to give 
 to the Orphans' Court exclusive jurisdiction in the par- 
 tition and valuation of the real estate of intestates, or to 
 prevent the parties interested from proceeding by action 
 of partition in other courts of the commonwealth having 
 jurisdiction in the said action of partition.. 
 
 (8.) The 1st section of the Act of 13th March, 1847, 
 Pamphlet Laws, 319, provides that the jurisdiction of 
 the Orphans' Court in the partition and valuation of real 
 estate shall extend to any undivided interest in fee sim- 
 ple in land of which the party died seized as tenant in 
 common or joint tenant as fully as if decedent had been 
 solely seized, and the inquest, or seven men appointed to 
 divide, shall value and return such interest undivided, 
 etc. 
 
 (9.) The 16th section of the Act of 9th April, 1849, 
 Pamphlet Laws, 527, provides that, in all cases of boiM- 
 fide sales under order of the Orphans' Court, the title of 
 the purchaser shall not be affected by the revocation of 
 the letters testamentary or of administration of the exec- 
 utor or administrator, and said purchaser shall have a 
 right to proceed to obtain possession in the manner pro- 
 
SEC. VII. J ACQUISITION, PAETITI03Sr, MOETGAGING, ETC. 115 
 
 vided in relation to purchases at slieriifs' sales (viz., under 
 Act of 16th June, 1836, Pamphlet Laws, 761 ; see Jack- 
 son & Gross, page 302). 
 
 (10.) The 10th section of the Act of 10th April, 1849, 
 Pamphlet Laws, 596, provides thatthe jurisdiction of the 
 Orphans' Court in the partition and valuation of the real 
 estate of decedents, shall extend to all cases of testacy 
 wherein the whole or any part of the real estate may be 
 devised to two or more children to be held in unequal 
 proportions, etc. 
 
 (11.) The 2d section of the Act of 25th April, 1850, 
 Pamphlet Laws, 569, provides that, in all cases of parti- 
 tion in the Orphans' Court, it shall be lawful for the 
 court to grant a rule to the parties, instead of the separate 
 rules, as theretofore. 
 
 The 5th section of the same act provided that the pro- 
 visions of the 3d section of the Act of 13th April, 1840, 
 as declared by the 1st section of the Act of 25th April, 
 1850, shall extend to all cases which have or shall arise 
 (It is evident that the word 1st in this section should be 
 4th, as the 1st section relates to the Act of 29th March,. 
 1832.) 
 
 The 10th section of the same act provides that, in all 
 cases of partition, the courts having jurisdiction thereof 
 are empowered, wherever advisable, to cause the share 
 of the parties appearing to be allotted to them, and to 
 permit the residue to remain to the parties entitled thereto 
 for future partition. 
 
 (12.) The 1st section of the Act of 20th February, 
 1854, Pamphlet Laws, 89, provides that courts not hav- 
 ing jurisdiction in partition shall have power to enter- 
 tain proceedings for the partition of real estate or the re- 
 covery of dower, though the lands lie in different counties : 
 Provided, That such proceedings shall be brought in the 
 county wherein the decedent had his domicil, etc. 
 
116 OF GUAEDIAU AND WARD. 
 
 (13.) The 1st section of the Act of 12th April, 1855, 
 Pamphlet Laws, 214, provides that, in cases of partition 
 in the Orphans' Court, when the court decrees any party, 
 taking in the appraisement, to give a recognizance for 
 the payment of the valuation, it shall be the duty of the 
 clerk of the court, when there be no auditor, to make a 
 calculation exhibiting the amounts due the respective 
 parties, and to record the same. 
 
 (14.) The 4th section of the Act of 27th April, 1855, 
 Pamphlet Laws, 369, provides that, in any proceeding for 
 the partition of real estate, the court may appoint, on the 
 agreement of the parties, three or more commissioners to 
 divide or value the same, with the same effect as a sher- 
 iff's inquest, etc. 
 
 (15.) The 1st section of the Act of 17th April, 1856, 
 Pamphlet Laws, 386, provides that the intent of the Act 
 of 20th February, 1854, shall be to include proceedings 
 in partition instituted in the Orphans' Court of any 
 county of the Commonwealth when the real estate is 
 situate in two or more counties. 
 
 (16.) The 10th section of the Act of 22d April, 
 1866, Pamphlet Laws, 533, provides that, in all cases 
 of partition of real estate, wherein a valuation has been 
 made of the whole or parts, the same shall be allotted 
 to the party who shall offer the highest price above the 
 valuation returned. 
 
 (17.) The 1st section of the Act of 11th April, 1863, 
 Pamphlet Laws, 341, provides that, upon the sale of any 
 real estate in partition in the Orphans' Court, the ad- 
 ministrator or trustee shall file in the register's office an 
 account of his trusteeship. 
 
 (18.) The 1st section of the Act of 27th April, 1864, 
 Pamphlet Laws, 641, provides that the costs, in cases of 
 partition and counsel fees, shall be paid by the parties in 
 proportion to their interests. 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 117 
 
 (19.) The 1st section of the Act of 27th March, 1865, 
 Pamphlet Laws, 45, extended the provisions of the 19th 
 section of the Act of 24th February, 1834, supra, to all 
 sales of decedents' estates made by order of the Orphans' 
 Court in partition, the proceeds of the sales to be paid 
 into court. 
 
 (20.) The 1st section of the Act of 13th February, 
 1867, Pamphlet Laws, 160, provides that the Orphans' 
 Courts of York and Fayette counties shall have power in 
 cases of testacy, on the petition of the widow, to appoint 
 three commissioners or an inquest to make partition or 
 valuation of the widow's dower. 
 
 (21.) The 1st section of the Act of 20th February, 
 1867, Pamphlet Laws, 30, confers on the committees of 
 lunatics or habitual drunkards the power to prosecute 
 actions of partition. 
 
 (22.) The 1st section of the Act of 28th' April, 1868, 
 Pamphlet Laws, 105, provides that so much of the Act 
 of 27th March, 1865, supra, as required the money aris- 
 ing from the sales to be paid into court shall be modi- 
 fied so that the court, at its discretion, may make such 
 order as may be just. 
 
 (23.) The 1st section of the Act of 26th February, 
 1869, Pamphlet Laws, 4, provides that partitions made 
 in the Orphans' Court prior to the passage of the Act of 
 13th March, 1847, and sales within the purview of said 
 act shall be confirmed, and that thenceforth several un- 
 divided interests in any premises, derived from different 
 ancestors, shall be parted in one proceeding in the Or- 
 phans' Court. , 
 
 (24.) By the 1st section of the Act of 30th March, 
 1869, Pamphlet Laws, 15, the meaning of the Acts of 
 20th February, 1854, supra, and 17th April, 1856, 
 supra, is declared to be to include all proceedings in 
 partition necessary to be had, as well before as after 
 
118 OF GUARDIAN AND WAKD. 
 
 the refusal of the heirs to take real estate at the valua- 
 tion, and the courts may authorize the sale of such real 
 estate after the refusal in the same manner as if all the 
 real estate were situated in the county in which the pro- 
 ceedings were instituted. 
 
 (25.) The 1st section of the Act of 26th February, 
 1870, Pamphlet Laws, 256, provides that, in the case of 
 partition of real estate in the county of Luzerne, where the 
 land contains coal or other mineral, partition may be 
 made of the surface land, reserving the minerals for fu- 
 ture partition, etc. 
 
 (26.) The 1st section of the Act of 23d May, 1871, 
 Pamphlet Laws, 274, provides that, in cases of sales of real 
 estate in partition, the Orphans' Court may decree the 
 payment of the cost of the proceedings on the confirma- 
 tion of the sale, and the purchasers shall give security 
 for the payment of the balance to the parties entitled 
 thereto, by recognizance. 
 
 The 2d section of the said act provides that, before suit 
 be entered on said recognizance, security shall be given 
 by the party entitled, conditioned for a ratable refund- 
 ing, to pay any debt that may appear against the dece- 
 dent ; if the party be unable to give the security then 
 the money derived from the sale shall be put at interest, 
 as provided by 41st section of Act of 24th February, 
 1834, supra. 
 
 The 3d section of the same act provides that the re- 
 cognizance shall be a lien on the real estate sold, until 
 the amount is paid. 
 
 (27.) The 1st section of the Act of 24th May, 1871, 
 Pamphlet Laws, 1088, provides that the provisions of 
 the Act of 26th February, 1870, supra, shall not be con- 
 strued to diminish or impair the rights of widow, hus- 
 band, or surviving parent. 
 
 (28.) The 1st section of the Act of 14th May, 1874, 
 
SEC. VII.] ACQUISITION, PAETITIOKT, MORTGAGING, ETC. J 19 
 
 Pamphlet Laws, 156, provides that the meaning of the 
 Acts of 20th February, 1854, and of 30th March, 1869, 
 supra, shall comprehend all suits in partition, whether 
 in the Common Pleas or Orphans' Court, by any tenant 
 in common or joint tenant, and writs of partition may be 
 issued to an inquest of seven men, or to a commission of 
 three. 
 
 The 2d section provides that nothing contained in the 
 act, nor in the Acts of 20th February, 1854, and of 30th 
 March, 1869, supra, shall be so construed as to prevent 
 any tenant in common or joint tenant of real estate sit- 
 uate in two or more counties from bringing a separate 
 suit in either of said counties for the partition of so 
 much of the real estate lying therein except where such 
 consists of single tracts lying in adjoining counties. 
 
 The 3d section provides that partition may be made 
 of landsand coal-rights therein and timber-rights thereon, 
 whether the rights of all parties be co-extensive with the 
 whole or not, and whether the rights of some only extend 
 to the land and part of the coal or only to the land and 
 part of the timber. 
 
 (29.) The 1st section of the Act of 8th May, 1876, 
 Pamphlet Laws, 134, provides, that whenever a bill be 
 filed in any court having equity jurisdiction in partition, 
 the court, after decree in partition made, may refer the 
 cause to a master to partition the land, value the same, 
 and ascertain the owelty, etc. 
 
 The 2d section makes it the duty of the court to ex- 
 amine the report of the master, with power to correct or 
 set aside the same and direct a new partition, and to 
 direct conveyances to be made. 
 
 The 3d section provides, that the decree confirming a 
 partition as aforesaid shall have the same effect as a 
 judgment that the partition remain firm and stable, etc. 
 
 (30.) The 1st section of the Act of 8th May, 1876, 
 
120 OF GUAEDIASr AND WARD. 
 
 Pamphlet Laws, 140, provides, that in all cases in the 
 Orphans' Court in which real estate shall be taken by 
 an heir, or other person legally authorized, charged with 
 owelty, the said court shall have power to fix, for the 
 payment of such, such time or times as in the judgment 
 of the court shall be to the advantage of those entitled : 
 Provided, That the principal and interest be secured. 
 
 (31.) The 1st section of the Act of 13th May, 1876, 
 Pamphlet Laws, 172, provides, that, in all cases in which 
 there have been proceedings in the Orphans' Court for 
 the partition of real estate between one or more living 
 cotenants in common, and the heirs, devisees or legal 
 representatives of a decedent who was a cotenant or 
 tenant in common with said living parties, and the di- 
 vision has been carried out by allotment or by sale under 
 the decree of court, the proceedings shall be as valid and 
 effectual as if the Orphans' Court had had full jurisdic- 
 tion of the same : Provided, That the parties in interest 
 have had the same notice required to be given in such 
 cases where the court has jurisdiction. 
 
 (32.) The 1st section of the Act of 1st May, 1879, 
 Pamphlet Laws, 40, provides that thereafter, in all pro- 
 ceedings in the partition of real estate, when an inquisition 
 shall be held by the sheriff, the same shall consist of six 
 persons instead of twelve,' as theretofore. 
 
 A few Decisions on Partition. 
 
 (1.) The Orphans' Court has no jurisdiction to make 
 partition, unless it be given by some act of Assembly 
 Snyder's Appeal, 12 Casey, 166. 
 
 (2.) Since the Act of 13th April, 1840, the Orphans' 
 Court has jurisdiction in cases of testacy when the course 
 of descent is not changed, or when some of the parties 
 are minors. Wain's Appeal, 4 Barr, 502. 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 121 
 
 (3.) Since the Act of 13th March, 1847, the Orphans' 
 Court has jurisdiction to decree partition of land held by 
 the decedent in common with another. Shaffer v. Shaffer, 
 14 Wright, 396. 
 
 (4.) Since the Act of 10th April, 1849, the Orphans' 
 Court has jurisdiction to make partition when a child 
 was born subsequent to the date of the will. Cowan's 
 Appeal, 24 P. F. Smith, 329. 
 
 (5.) Since the Act of 22d April, 1856, preference is 
 not given to one heir over another, as the purparts are 
 allotted to the heir who makes the highest bid ; but if no 
 one bids, the old rule prevails. Klohs v. Eeifsnyder, 11 
 P. F. Smith, 240. 
 
 (6.) ^ Each fieir is entitled to but one bid, which should 
 be sealed, and all bids should be in before any are 
 opened. Ibid. 
 
 (7.) Since the Act of 20th February, 1867, Pamphlet 
 Laws, 30, the committee of a lunatic may maintain an 
 action of partition. Ibid. 
 
 (8.) An amicable partition, if fair and equal, will bind 
 minors. Cowan's Appeal, 24 P. F. Smith, 329. 
 
 (9.) None but the infant, on attaining full age, can 
 take advantage of a partition that is voidable as to him. 
 Burke v. Young, 2 Sergeant & Rawle, 383. 
 
 (10.) A testator may direct the time and manner of 
 making partition of lands devised by him. Naglee's 
 Estate, 2 P. F. Smith, 154. 
 
 For further decisions, see title " Partition," in "Rhone's 
 Orphans' Court Practice." 
 
 As to the Mortgaging or Sale of a Minor's Heal Estate. 
 
 In regard to the mortgaging or sale of a minor's real 
 estate where sale is made for purposes other than par- 
 tition, the same has been referred to, supra, pages 51 to 
 54. 
 
122 OF GUARDIAN AND WARD. 
 
 Under the 31st section of the Act of 29th March, 1832, 
 Pamphlet Laws, 198, the Orphans' Court may authorize 
 a sale or mortgage of a decedent's real estate by the ex- 
 ecutor or administrator in the following cases : 
 
 "1. On the application of the executor or administrator, 
 setting forth that the personal estate of the decedent is 
 insufficient for the payment of debts and maintenance 
 and education of his minor children, or for the purpose 
 of paying the debts alone. 
 
 " 2. On the application of such executor or administra- 
 tor, or of any person interested, setting forth that, on the 
 final settlement of the administration account, it appears 
 that there are not sufficient personal assets to pay the 
 balance appearing to be due from the estalfe of such de- 
 cedent, either to the accountant or others." 
 
 The text of the clause in the same section, authorizing 
 the mortgage or sale on the application of a guardian, is 
 given supra, page 51, and the object to be attained by 
 such is to obtain means for the education and mainte- 
 nance of the minors, or for the improvement or repair of 
 their real estate, or that, in the judgment of the court, it 
 would be to the interest of the minors that the real estate 
 should be sold. 
 
 The 32d section of the Act of 1832, supra, page 51, 
 makes provision for the sale or mortgaging of the real 
 estate where the land lies in the same county or in a 
 county other than that in which the decedent was resi- 
 dent. 
 
 The 33d and 34tli sections of the act, supra, page 
 52, provide that authority to mortgage or sell the real 
 estate shall not be given, until the executor, administra- 
 tor, or guardian shall have .rendered to the Orphans' 
 Court an inventory and appraisement of the personal 
 property, and a statement of the real estate, etc. 
 
SEC. VII.] ACQUISITION, PAETITION, MORTGAGING, ETC. 123 
 
 The 54th section, supra, page 52, gives instructions as 
 to the notice to be given of the sale. 
 
 The 20th section of the Act of 24th April, 1834, Pam- 
 phlet Laws, 76, requires executors and administrators, 
 where it appears that the personal estate of a decedent is 
 insufficient to pay his debts, to proceed under the direction 
 of the Orphans' Court to sell a sufficiency of the real es- 
 tate, and such real estate shall not be liable in the hands 
 of the purchaser for the debts of the decedent. 
 
 The 43d section of the act provides for the security to 
 be given by such executor or administrator, prior to ex- 
 ecuting any order or decree of the Orphans' Court in re- 
 gard to sales of the real estate of the decedent. 
 
 The 19th section of the act provides for the payment 
 into court of the proceeds of any sale. This section is 
 affected by the provisions of Acts of 27th March, 1865, 
 and 28th April, 1868, supra, page 117. 
 
 When the land of an intestate decedent has been sold for 
 the payment of his debts, the residueof the proceeds thereof 
 shall, under the 18th section of the Act of 8th April, 
 1833, Pamphlet Laws, 320, descend to the persons en- 
 titled to the real estate under the act. 
 
 The other acts on the subject are as follows: 
 
 (1.) Act of 16th June, 1836, Pamphlet Laws, 792, 
 section 19. 
 
 (2.) Act of 20th April, 1846, Pamphlet Laws, 411, 
 sections 1, 2, 3. 
 
 (3.) Act of 16th March, 1847, Pamphlet Laws, 474, 
 section 2. 
 
 (4.) Act of 9th April, 1849, Pamphlet Laws, 527, 
 section 16. 
 
 (5.) Act of 3d April, 1851, Pamphlet Laws, 305, sec- 
 tions 1, 2, 3, 4, 5. 
 
 (6.) Act of 18th April, 1853, Pamphlet Laws, 503, 
 sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10. 
 
124 OF GUARDIAN AND WARD. 
 
 (7.) Act of 13th April, 1854, Pamphlet Laws, 368, 
 sections 1, 3. 
 
 (8.) Act of 27th April, 1855, Pamphlet Laws, 369, 
 section 5. 
 
 (9.) Act of 22d March, 1859, Pamphlet Laws, 207, 
 section 1. 
 
 (10.) Act of 1st May, 1861, Pamphlet Laws, 431, 
 section 1. 
 
 (11.) Act of 18th April, 1864, Pamphlet Laws, 462, 
 section 1.' 
 
 (12.) Act of 23d March, 1867, Pamphlet Laws, 43, 
 sections 1, 2. 
 
 (13.) Act of 18th March, 1869, Pamphlet Laws, 409, 
 section 1. 
 
 (14.) Act of 14th May, 1874, Pamphlet Laws, 166, 
 section L 
 
 (15.) Act of 8th June, 1874, Pamphlet Laws, 277, 
 section 1. 
 
 (16.) Act of 28th April, 1876, Pamphlet Laws, 50, 
 section 1, 
 
 (17.) Act of 4th June, 1883, Pamphlet Laws, 65, 
 section 1. 
 
 Of the foregoing acts we will give but a synopsis as 
 follows: 
 
 (1.) The 19th section of the Act of 16th June, 1836, 
 Pamphlet Laws, 792, provides that the jurisdiction of 
 the Orphans' Court shall extend : 
 
 1st. To the appointment, control, removal, and dis- 
 charge of guardians, and the settlement of their accounts. 
 
 2d. To the removal and discharge of executors and ad- 
 ministrators, deriving their authority from the register. 
 
 3d. To the distribution of the assets of decedents. 
 
 4th. To the sale of the real estate of decedents. 
 
 5th. To the partition of the real estate of intestates 
 amongst the heirs. 
 
SEC. VII.] ACQUISITION, PAETITION, MOETGAGING, ETC. 125 
 
 6tli. To enforce the specific execution of contracts made 
 by decedents in regard to the sale and conveyance of real 
 estate. 
 
 7th. To proceedings for the recovery of legacies. 
 
 8th. To cases, within their respective counties, wherein 
 executors, administrators, guardians or trustees may be 
 possessed of or be accountable for any real or personal 
 estate of a decedent. 
 
 [Note. — The 4th section of the Act of 13th April, 
 1840, Pamphlet Laws, 319, extended the power of the 
 Orphans' Court to partition in cases of testacy, where 
 any of the parties are minors, or where the course of de- 
 scent is not changed, but it did not extend the power to 
 cases of mortgaging or selling real estate.] 
 
 (2.) The 1st section of the Act of 20th April, 1846, 
 Pamphlet Laws, 411, provides that, whenever the pur- 
 chaser of real estate, at Orphans' Court or sheriff's sale, 
 shall be entitled, as a lien creditor, to receive the pro- 
 ceeds of the sale, it shall be the duty of the person making 
 the sale to receive the receipt of such person for the amount 
 which he would appear to be entitled to receive: Pro 
 vided, That the legal costs of the sale shall first be paid, 
 and that the creditor exhibits a certified statement of the 
 fact that he is a lien creditor, etc. 
 
 The 2d section of the same act provides that it shall 
 be the duty of the sheriff, executor, or administrator, etc., 
 making the sale, to state the fact of the taking of the re- 
 ceipt, as aforesaid, in the return of the proceedings of the 
 sale, and to also attach a list of the liens on the property 
 sold, which return shall be read in court, and,, if the right 
 of the purchaser to the amount mentioned shall be ques- 
 tioned by any person interested, the court shall appoint 
 an auditor, who, after notice, shall make a report, dis- 
 
126 OF GUARDIAN AND WARD. 
 
 tributing the proceeds of the sale, etc., to be approved by 
 the court, or to direct an issue to determine the validity 
 of the claim. If it be determined that the purchaser was 
 not entitled to receive said money, the court shall set aside 
 the sale, and order the real estate to be re-sold, unless 
 the money be paid to the person making the sale within 
 ten days thereafter: Provided, That nothing in the act 
 shall prevent the purchaser, in case the real estate on the 
 subsequent sale brings less than his bid, from being 
 liable for the deficiency : and provided, that, before an 
 issue shall be directed upon the distribution of the money, 
 the applicant for such issue shall make affidavit that there 
 are material facts in dispute therein, etc., upon which 
 affidavit the court shall determine whether such issue 
 shall be granted, etc. 
 
 The 3d section provides that, upon granting the issue, 
 the court may at discretion, when the money has been 
 paid, upon the application of the party on the record, or- 
 der the same to be invested in some sufficient security 
 pendente lite. 
 
 (3.) The 2d section of the Act of 16th March, 1847, 
 Pamphlet Laws, 474, provides that the Orphans' Court 
 of any city or county, in which vacant land of a minor be 
 situated, may, on the application of a guardian, setting 
 forth that it is unproductive and expensive, and that it 
 would be to the benefit of the minor to let it on ground- 
 rent, authorize the guardian to let the same, and execute 
 the proper conveyances. 
 
 (4.) The 16th section of the Act of 9th April, 1849, 
 Pamphlet Laws, 527, provides that, in cases oi bona fide 
 sales under order of the Orphans' Court, the title of the 
 purchaser shall not be affected by the revocation of the 
 letters testamentary or of administration of the executor 
 or administrator, and also that purchasers shall have the 
 right to obtain possession of the purchased premises in 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 127 
 
 tlie manner then provided in relation to purchasers at 
 sheriff's sales. See Jackson & Gross, 318. 
 
 (5.) The 1st section of the Act of 3d April, 1851, 
 Pamphlet Laws, 305, provides that the Orphans' Court 
 shall have authority to authorize the sale of real estate 
 as follows, in addition to the cases specified in the acts to 
 which the act is supplementary : 
 
 I. Where lands and tenements, or any interest in pos- 
 session, belong to a minor, and it appears to the Orphans' 
 Court that it would be to the interest of the minor that 
 such should be sold, on the application of the guardian, 
 the court shall authorize him to make sale, and, on the 
 confirmation of the sale, the guardian shall receive the 
 proceeds as the estate of the minor. 
 
 II. Where lands are held by will or otherwise for life, 
 or pur autre vie, by any person, with remainder to any 
 minor, and it shall appear to the Orphans' Court that it 
 would be to the interest of such minors that the same 
 should be sold, in such cases, upon the application of the 
 tenants for life, or pur autre vie, the court shall order a 
 trustee to make sale of the land, and, on confirmation of 
 such, the trustee shall receive and hold the proceeds in 
 trust for the parties in interest, and shall loan the same 
 upon good real estate security, upon bond and mortgage, 
 and shall pay the interest on the same to the tenants for 
 life, or pur autre vie, until the life estates shall termi- 
 nate, and then the principal to the person entitled in 
 remainder. 
 
 III. Where lands are held in trust, under the pro- 
 visions of a will, for a corporation or person, and it ap- 
 pear to the Orphans' Court that it be to the interest of 
 the cestui que trust that the same should be sold, upon 
 the application of the trustee, the court shall authorize 
 the trustee to make sale, etc. 
 
 The 2d section of the same act provides that, where ap- 
 
128 OF GUARDIAN AND WAED. 
 
 plication be made to the Orphans' Court for a decree 
 authorizing the sale of real estate under the provisions of 
 the act, the court shall appoint a day for the hearing 
 and cause notice thereof to be given to parties interested 
 in the real estate, and to the guardians of those who are 
 minors, etc., at least thirty days prior to the hearing, 
 when the court shall make such decree as facts shall re- 
 quire. 
 
 The 3d section provides that the notice shall be given 
 in the manner prescribed by the 52d and 53d sections of 
 the Act of 29th March, 1832, Pamphlet Laws, 190. 
 
 The 4th section provides that every application for the 
 sale of lands under the act shall be in the form of a pe- 
 tition, and shall set forth a description of the lands, and 
 the names of the parties in interest, and when any of 
 such be minors, having no guardian residing within the 
 county in which the lands lie, the court shall appoint a 
 person to guard their interests : Provided, That, if such 
 minors appear on the day of hearing by guardian or next 
 friend, the appointment by the court shall be void. See 
 supra, page 30, for text. 
 
 The 5th section provides that, before the confirmation 
 of the sale, the persons applying for the sale shall give 
 a bond of security. See supra, page 61, for text. 
 
 (6.) The 1st section of the Act of 18th April, 1853, 
 Pamphlet Laws, 503, provides that, in all cases where 
 real estate shall have been acquired by descent or last 
 will, the Orphans' Court, and in all other cases the Court 
 of Common Pleas, shall have jurisdiction to decree the 
 sale, mortgaging, leasing, or conveyance on ground-rent 
 of real estate, as in the act set forth : Provided, That any 
 such court shall believe such to be to the interest of those 
 in interest : and provided, such can be done without the 
 violation of any law, which may confer an exemption 
 from sale or alienation. 
 
SEC. VII.] ACQUISITION, PAETITION, MORTGAGING, ETC. 129 
 
 The 2d section of the same act provides when such sale, 
 mortgaging, leasing, or conveyance on ground-rent may- 
 be decreed as follows : 
 
 I. Whenever real estate shall be held or owned by 
 minors, lunatics, or habitual drunkards, so found by 
 inquisition. 
 
 II. For the sole and separate use of married women. 
 
 III. For religious, beneficial, or charitable societies or 
 associations, incorporated or unincorporated. 
 
 IV. Or by trustee for any public or private use or 
 trust, though therein there may exist a power of sale, but 
 the time not arrived to exercise such, etc. 
 
 V. Where there has been a defective appointment in 
 any will, etc. 
 
 VI. Where the owner of real estate has been absent, 
 and unheard of for seven years. 
 
 VII. Where a husband has a wife who is either a lu- 
 natic or a minor. 
 
 VIII. Whenever a married woman owns real estate, 
 and her husband has abandoned her for two years, or 
 has been absent or unheard from for seven. 
 
 IX. When a decedent had contracted by parol to sell 
 real estate, and those in interest do not plead the statute, 
 requiring such contracts to be in writing. 
 
 X. Whenever a decedent's real estate is subject to 
 debts not of record. 
 
 XI. Whenever real estate shall be entailed or contin- 
 gent remainders or executory devises limited thereon. 
 
 XII. Whenever in proceedings in partition in equity, 
 it appears that real estate cannot be divided without prej- 
 udice to the owners. 
 
 XIII. Whenever real estate be purchased or ground- 
 rent reserved and be held by one in a fiduciary capacity. 
 
 XIV. Such decree may be made, whether the interest 
 be in severalty, joint-tenancy, coparcenary or common. 
 
 9 
 
130 OF G0ARDIAN ANB WARD. 
 
 XV. Generally, in cases where estates be devised or 
 granted in trust for limited purposes, or where a party in 
 interest is under some legal disability, and every power 
 to sell real estate shall confer authority to sell and con- 
 vey reserving rent, and the same to extinguish or con- 
 vey. 
 
 The 3d section provides that such sale, mortgaging, 
 leasing or conveyance upon ground-rent may be decreed 
 on petition of any trustee, guardian, or person interested, 
 setting forth the facts under oath or affirmation. If all 
 parties do not voluntarily appear, the court shall set a day 
 to appearand cause a citation to be served, and public notice 
 given, as in the section is directed, and, if the parties fail 
 to appear, the court may proceed to make a decree : Pro- 
 vided, that, in the case of the appointment of a guardian 
 by the court, security shall be taken of him. See supra, 
 page 61, for text. 
 
 The 4th section provides that such sales, mortgages, 
 etc., shall only take place after careful investigation, etc. 
 See supra, page 62, for text. 
 
 The 5th section provides that the title of the purchas- 
 ers at such sales, etc., shall be a fee simple one, indefeasi- 
 ble by any person in interest, and unprejudiced by errors 
 in the proceedings of the court, and such sales shall dis- 
 charge all liens on the premises sold, and shall bar 
 any estate tail, and defeat contingent remainders, and 
 shall bar any right of the Commonwealth to forfeit real 
 estate held by any corporation beyond the amount au- 
 thorized, if no proceedings to that effect had been com- 
 menced : Provided, that the petition shall set forth an 
 explanation of title and of the purpose to bar the entail, 
 defeat the contingent remainder or the right of the Com- 
 monwealth : and provided, that the purchase-money or 
 rent reserved be a lien on the premises sold or let until 
 fully paid. 
 
SEC. VII. J ACQUISITION, PARTITION, MORTGAGING, ETC. 131 
 
 The 6th section provides that the purchase or mort- 
 gage-money or rent shall be substituted for the real es- 
 tate sold, as regards the enjoyment or ownership, after 
 the payment of liens, and shall be applied for the benefit 
 of the same persons and for the same estate as the prem- 
 ises had been held, except only such remainders after an 
 entailment or contingent remainder as shall be barred or 
 defeated, and those entitled to a present interest shall 
 receive the interest of the proceeds or rents, unless ex- 
 pressly directed to accumulate : Provided, that no prin- 
 cipal moneys, raised by sale or mortgage, shall be ex- 
 pended 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, unless the same be required for 
 the maintenance or education of parties having the like 
 interests, vested or expectant, and can be thus equitably 
 so applied, and without diminution of the caj)ital that 
 may of right become the property of parties having un- 
 barred interests in remainder, or by executory devise. It 
 shall be the duty of the court to decree the application 
 of the purchase or mortgage-money and rents, with the 
 aid of an auditor, when necessary, to the discharge of 
 liens, etc., and, before the decree be executed, the parties 
 interested to execute the same shall give security, etc., 
 and, such security having been given, no purchaser or 
 lessee shall be bound to see to the application of the pur- 
 chase-money or rents, or be affected by the former trusts, 
 etc. See supra, page 63, for text. 
 
 The 7th section provides that it shall be lawful for 
 trustees, guardians, committees, married women and cor- 
 porations in the cases beforesaid in the act, under the de- 
 cree of court, as follows: 
 
 1st. To make and take conveyances to square and ad- 
 just lines, etc. 
 
132 OF GUARDIAN AND WA'RD. 
 
 2d. To make and take conveyances to effect the par- 
 tition of real estate, etc. 
 
 3d. To purchase other real estate when needful or 
 useful to the business, etc. 
 
 4th. To purchase real estate, when necessary to pro- 
 tect any security or rent held on property exposed to 
 judicial sale : Provided, that no corporation purchase 
 beyond its charter license : Provided, that no purchase or 
 sale under the act shall change the course of descent or 
 transmission of property as respects persons who are not 
 of competent ability to dispose of it. 
 
 Persons, intrusted with moneys raised under the act, 
 to file their accounts in the court whence their authority 
 is derived, whereby the same may be audited and con- 
 firmed, and the accountants discharged. 
 
 The 8th section provides that, in all cases under the act 
 appeals may be taken to the Supreme Court from the 
 Orphans' Court, as then provided by law in other cases, 
 and in the Common Pleas as provided in equity cases : 
 Provided, that, if any decree be carried into execution 
 before the appeal be perfected, and written notice thereof 
 given to any vendee, mortgagee or lessee, any reversal 
 thereof shall not affect the right or title of such vendee, 
 mortgagee or lessee, but the purchase or mortgage-money 
 shall stand in lieu of the premises : Provided, that, before 
 any decree be carried into effect, to afford such indem- 
 nity, twenty days be allowed from its entry to take effect 
 and perfect such appeal. 
 
 The 9th section provides that no person shall, after the 
 passing of the act, by any deed, will, or otherwise, settle 
 or dispose of any real or personal property, so and in 
 such manner that the rents, issues, interests or profits 
 thereof shall be wholly or partially accumulated for any 
 longer term than the life or lives of any such grantor, 
 settler, or testator, and the term of twenty-one years from 
 
SEC. VII.] ACQUISITION, PAETITION, MORTGAGING, ETC. 133 
 
 the death of any such grantor, settler, or testator, etc. ; 
 and, in every case where any such accumulation shall be 
 directed, the same to be null and void as to the excess, 
 and the excess shall go to the parties entitled to them, 
 had the direction not been given : Provided, that any do- 
 nation, bequest or devise for any literary, scientific, char- 
 itable or religious purpose, shall not come within the pro- 
 hibition of the section : antZ^roOTcZetZ, that, notwithstanding 
 any direction to accumulate rents, issues, interests, and 
 profits for the benefit of any minor, it shall be lawful for 
 the court, on the application of the guardian, when there 
 shall be no other means for maintenance and education, 
 to decree an adequate allowance for such purpose, etc. 
 See supra, page 50. 
 
 The 10th section provides that the directions given in 
 the 6th section of the act, in regard to security in cases 
 of sales, etc., and the condition of the bond or security, 
 shall apply to all cases of sales or mortgages by order of 
 the courts of the Commonwealth : and provided, that no 
 decree for the sale, mortgaging or letting of real estate, 
 under the act, shall be made, except where the president- 
 judge of the court or the law-judge be present, and acts 
 of assembly relating to special courts where the president- 
 judge is interested shall apply. See supra, page 63. 
 
 (7.) The 1st section of the Act of 13th April, 1854, 
 Pamphlet Laws, 368, provides that, in sales of real estate 
 under the Act of 1853, supra, when the trustees, guar- 
 dians, etc., authorized to make sale, mortgage, or lease, 
 reside out of the county in which is the real estate, the 
 deed, mortgage or lease may be acknowledged before the 
 Courts of Common Pleas or Orphans' Court of any county 
 of the State, where the person may reside, and be certified 
 under the seal of the court. 
 
 The 3d section of the same act provides that where a 
 
134 OF GUARDIAN AND WARD. 
 
 sale, mortgage or lease has been made, without leave of 
 the court, the court may ratify and confirm the sale. 
 
 (8.) The 5th section of the Act of 27th April, 1855, 
 Pamphlet Laws, 369, provides that, under theActof 1853, 
 supra, whenever the estate has been derived partly by 
 defed and partly by descent or will, either the Court of 
 Common Pleas or the Orphans' Court may entertain ju- 
 risdiction of the proceedings to make sale or lease. 
 
 (9.) The 1st section of the Act of ^2d March, 1859, 
 Pamphlet Laws, 207, provides that, in sales of real es- 
 tate under the order of the Orphans' Court, the court 
 shall have power to direct the terms thereof for cash, not 
 less than one-fourth the purchase-money at theconfirma- 
 tion of the sale, and the balance in such instalments and 
 at such times as the court may think to the advantage of 
 the parties in interest, requiring security in double the 
 amount : Provided, the purchase-money shall be a lien on 
 the premises. 
 
 (10.) 'Jhe 1st section of the Act of 1st May, 1861, 
 Pamphlet Laws, 431, provides that, where authority be 
 given by decree of court to sell real estate, and any of the 
 persons authorized shall have died, resigned, or ceased to 
 act, before a sale be effected, sales may be effected and 
 deed executed by the surviving or succeeding trustee, or 
 other persons authorized, and the deed shall vest the 
 property in the grantee as fully as otherwise. 
 
 (11.) The 1st section of the Act of 18th April, 1864, 
 Pamphlet Laws, 462, provides that it shall be lawful for 
 trustees, guardians, etc., in addition to the powers granted 
 by the 7th section of the Act of 1853, supra, under the 
 decree of the proper court, to make and take or to join 
 with owners of other undivided interests in making and 
 taking conveyances, by deed acknowledged in court, and 
 without public sale, in order to change, in part or in 
 whole, the route or location of any right of way or pas- 
 
SEC. VII.] ACQUISITION, PARTITION, MORTGAGING, ETC. 135 
 
 sage existing over and upon adjoining or other lands. 
 See supra, page 64, for text. 
 
 (12.) The 1st section of the Act of 23d March, 1867, 
 Pamphlet Laws, 43, provides that any deed to convey real 
 estate under the Act of 1853, supra, being acknowledged 
 in court, and certified as required by the act or its supple- 
 ment, may be recorded in the recorder of deed's office, 
 without other acknowledgment, and the security re- 
 quired by the act may be approved by a court of like 
 jurisdiction of the county of which the grantor is a resi- 
 dent, and be certified under seal of such court, to that 
 wherein the sale was decreed, and such certificate shall 
 be copied on the record thereof 
 
 The 2d section of the act provides that private sales, 
 under the Act of 1853, shall discharge the premises 
 from the lien of certain debts. See supra, page 65, for 
 text. 
 
 (13.) The 1st section of the Act of 18th March, 1869, 
 Pamphlet Laws, 409, provides that the Orphans' Court 
 of Mercer County shall have power, on the application 
 of the guardian of any minor owning minerals in the 
 county, to lease the said lands, etc. See text of this sec- 
 tion, supra, page 64, for text. 
 
 (14.) The 1st section of the Act of 14th May, 1874, 
 Pamphlet Laws, 166, provides that, whenever any per- 
 son shall die seized of real estate valued at not more than 
 one thousand dollars, and the parties in interest desire 
 the same to be converted into money for distribution, it 
 shall be lawful for the Orphans' Court, on the joint peti- 
 tion of the widow and heirs and the guardians or commit- 
 tee of minors or persons under disability, in whom the real 
 estate has vested, etc., to order the executor, administrator 
 or trustee to sell and proceed in all respects in the manner 
 then provided by law in cases of sale of real estate for 
 
136 OF GUARDIAN AND WARD. 
 
 the payment of debts, and make distribution among those 
 entitled thereto. 
 
 (15.) The 1st section of the Act of 8th June, 1874, 
 Pamphlet Laws, 277, provides that whenever, under the 
 provisions of the Act of 1853, supra, and the supple- 
 ments thereto, the courts have power to decree a lease of 
 lands for mining purposes, it shall be lawful for the said 
 courts to decree that such lands may be so combined and 
 consolidated with other adjoining lands, as to form one 
 tract in which the several parties combining shall be- 
 come seized of undivided interests proportionate to their 
 divided interests, etc. 
 
 (16.) The 1st section of the Act of 28th April, 1876, 
 Pamphlet Laws, 60, provides that, whenever, in pursu- 
 ance of proceedings in the Orphans' Court or Court of 
 Common Pleas, any person therein described as a trustee, 
 guardian, etc., or as standing in any fiduciary relation to 
 the parties interested, shall convey any real or personal 
 estate, in which proceeding security shall have been en- 
 tered by decree of court, no defect in the original ap- 
 pointment, or absence of proper qualification, shall affect 
 the title of the grantee, or the security entered : Fro- 
 vided, that the act shall not apply to judicial proceedings 
 commenced prior theretofore. 
 
 (17.) The 1st section of the Act of 4th June, 1883, 
 Pamphlet Laws, 65, provides that, on the application to 
 the Orphans' Court having jurisdiction of the accounts 
 of any executor or administrator for leave to sell the real 
 estate of a decedent, or any part of the same, for payment 
 of debts, and any part of said real estate is situated partly 
 in each of two or more counties by reason of a county 
 line running through the same, the court shall have 
 power to order and direct the sale of the interest of the 
 decedent in the whole of said tract of land, irrespective 
 of the county boundary line, and such sale, when con- 
 
SEC. VII.j ACQUISITION, PARTITION, MORTGAGING, ETC. 137 
 
 firmed, shall be as effectual to pass the title of such real 
 estate as if the whole had been within the boundaries of 
 the county having jurisdiction of the accounts of the ex- 
 ecutor or administrator : Provided, that notice of sale be 
 given in all the counties in which the real estate is situ- 
 ated: and provided, that any mortgage, judgment-bond, 
 or other obligation to secure the purchase-money or part 
 thereof by lien on such lands, shall be duly recorded in 
 each of the counties in which the land lies. 
 
 A few Decisions on the Subject of Sales of Minors' Heal 
 
 Estate. 
 
 (1.) The Orphans' Court has no power to allow the 
 sale of a decedent's real estate for the payment of debts, 
 where the lien of such is gone by lapse of time. Ben- 
 ner v. Phillips, 9 Watts & Sergeant, 13 ; Bindley's Ap- 
 peal, 19 P. F. Smith, 295. 
 
 (2.) A power, given by will to sell real estate to pay 
 debts, will authorize a mortgage of it. Duval's Appeal, 
 2 Wright, 112. 
 
 (3.) The court has no jurisdiction to order a sale of 
 real estate for the payment of debts, where the decedent 
 did not die seized of the land. Shontz v. Brown, 3 Ca- 
 sey, 128. 
 
 (4.) The petition to the Orphans' Court to sell lands 
 of a decedent for the payment of debts should set forth, 
 in accordance with the provisions of the 33d section of 
 the Act of 29th March, 1832, supra, a true inventory of 
 the personal property, a statement of the real estate, and 
 the list of the debts should be minute and descriptive, 
 and a first mortgage on the premises should not be in- 
 cluded in the list, but mentioned apart. Russell Thom- 
 as's Estate, 3 Weekly Notes of Cases, 96. 
 
 (5.) Special notice of the sale of decedent's land need 
 
138 OF GUAEDIAN AND WAED. 
 
 not be given. A public notice is siifl&cient. Stiver's 
 Appeal, 6 P. F. Smith, 9. 
 
 (6.) The Orphans' Court may order a sale of real es- 
 tate to pay a first mortgage. Crawford's Estate, 27 
 Pittsburg Legal Intelligencer, 25. 
 
 (7.) No appeal lies from an order of sale of real estate 
 to pay debts. Siiodgrass's Appeal, 28 Pittsburg Legal 
 Intelligencer, 127. 
 
 (8.) The doctrine of caveat emptor applies to a sale by 
 an administrator for the payment of debts. Bickley v. 
 Piddle, 9 Casey, 276. 
 
 (9.) If a purchaser at an Orphans' Court sale has a 
 complaint to make, he should make it to the court before 
 confirmation of the sale. Fox v. Mench, 3 Watts & Ser- 
 geant, 444. 
 
 (10.) The object of the Act of 18th April, 1853, supra, 
 is not to settle questions of title to real estate, but to 
 transmit title unencumbered. Hower's Appeal, 5 P. F. 
 Smith, 337. 
 
 (11.) The design of the act of 1853 is well expressed 
 in the preamble, which is to make real estate freely 
 alienable and productive to living owners. Burton's 
 Appeal, 7 P. F. Smith, 213. 
 
 (12.) A guardian, who sells his ward's interest in real 
 estate under the Act of 1853, supra, which estate is liable 
 to a life estate, is a trustee under the control of the court, 
 and cannot be required to pay over the fund to another 
 guardian appointed by the court of another county. 
 Packer's Estate, 7 Philadelphia, 473. 
 
 (13.) When the estate is acquired partly by descent 
 and partly by deed, the Orphans' Court and the Com- 
 mon Pleas have concurrent jurisdiction since the Act of 
 27th April, 1855, supra. Eeed v. Palmer, 3 P. F. 
 Smith, 379. 
 
 (14.) The terms of a sale may be amended by the 
 
SEC. Vll.] ACQUISITION, PAETITIOJSr, MORTGAGING, ETC. 139 
 
 court, before the record is made up and closed. Singerly 
 V. Swain, 9 Casey, lU2. 
 
 (15.) If the executor at a sale take goods as part pay- 
 ment of the purchase-money, he is liable for the amount. 
 Mitchell's Estate, 1 Legal Gazette, 74. 
 
 (16.) The court may confirm a sale made after the re- 
 turn-day fixed in the order. Klingensmith v. Bean, 2 
 Watts, 486. 
 
 (17.) After the confirmation of a sale, and a failure of 
 the purchaser to comply with its conditions, compliance 
 may be enforced as follows : 
 
 1st. By an action in the Common Pleas for the pur- 
 chase-money. 
 
 2d. By application to court to set aside the sale. 
 
 3d. By proceedings in the Orphans' Court for spe- 
 cific performance. Bell's Appeal, 21 P. F. Smith, 465. 
 
 (18.) In the sale of the real estate by order of the 
 court, where the land lies in another county than that 
 wherein the letters are granted, the bond to secure the 
 purchase-money should be given in the county where 
 the first application was made. Gordon's Appeal, 12 
 Norris, 361. 
 
 (19.) Orphans' Court sales are the acts of the court 
 and the party making the sale is the agent of the court. 
 The court reserves the power to decline the purchaser's 
 bid until the sale is confirmed. Demmy's Appeal, 7 
 Wright, 155. 
 
 (20.) The court may set aside a sale in partition for 
 inadequacy of price. Hamilton's Estate, 1 P. F. Smith, 
 58. 
 
 (21.) The Constitution of 1874 has invested the Or- 
 phans' Court with the powers and duties of the Kegis- 
 ter's Court. Commonwealth v. Clark, 10 Philadelphia, 
 419. 
 
140 OP GUARDIAN AND WAED. 
 
 The foregoing acts of Assembly autliorize sales of a 
 decedent's real estate by orders of court as therein set 
 out, but conveyances of the real estate of a decedent may 
 be ordered by the court under the provisions of the 1st 
 section of the Act of 10th March, 1818, 7 Smith's Laws, 
 79, which relates to parol contracts of parties, and of 
 section 15 of Act of 24th February, 1834, Pamphlet 
 Laws, 75, where the contract was in writing ; but see, in 
 regard to these and other acts on the subject. Volume 2. 
 Rhone's Orphans' Court Practice, title Contracts. 
 
 As to the appointment of auditors, see same work, 
 title Auditors. 
 
 The right to obtain the specific performance of con- 
 tracts for the sale of real estate, is effected by the 6th 
 section of the Act of 22d April, 1 856, Pamphlet Laws, 
 532. 
 
 The right of any one to dispose by will or deed of prop- 
 erty in such a manner that the profits thereof shall be 
 accumulated for a longer term than the life of the grantor 
 and twenty-one years after the death of such, is prohib- 
 ited by the 9th section of the Act of 18th April, 1853, 
 Pamphlet Laws, 507 ; Estate A. D. Washington, 8 Phila- 
 delphia, 182. 
 
TABLE OF DISTRIBUTION AND DESCENT 
 IN PENNSYLVANIA. 
 
 PERSONAL PROPERTY OF INTESTATES DOMICILED 
 IN PENNSYLVANIA IS DISTRIBUTED AS FOLLOWS : 
 
 A 1. 
 
 Of one of either sex who dies leaving neither wife 
 nor husband nor issue, but a father and mother, or 
 
 EITHER, SURVIVING. 
 
 (1.) To the father and mother, or the survivor of 
 such : Section 3 of the Intestate Act of 8th April, 1833, 
 supra, 88 ; Gillan v. Dixon, 15 P. F. Smith, 395 ; Frank- 
 enfield v. Gruver, 7 Barr, 448; Mechling's Appeal, 2 
 Grant, 157 ; Weir's Estate, 13 Weekly Notes, 518. 
 
 A 2. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor father nor mother, but collat- 
 eral RELATIONS, as follows : 
 
 (1.) To (where there be no children or grandchildren 
 of deceased brothers and sisters) the brothers and sisters, 
 without regard to whole or half blood, share and share 
 alike : Section 4, article 5, of Intestate Act of 1833, 
 supra, 88. 
 
 (2.) To (in default of brothers and sisters, and grand- 
 nephews or grandnieces, children of deceased nephews 
 and nieces) the nephews and nieces, per capita : Section 
 4 of the Intestate Act of 1833, supra, 88 ; section 2 of 
 Act of 1855, supra, 91. extends representation to the 
 grandchildren of brothers and sisters. 
 
142 TABLE OF DISTRIBUTION AND DESCENT. 
 
 (3.) To (in default of brothers and sisters and nephews 
 and nieces) the grandnephews and -nieces, by represen- 
 tation (for the meaning of the word representation, see 
 Mackeldey's Roman Law, by Dropsie, pages 160 and 
 503), each class taking equally amongst them the share, 
 per stirpes,* the parent would have taken if living at 
 the time of the death of the intestate : Section 4 of the 
 Intestate Act of 1833, supra, 88 ; section 2 of Act of 
 1855, supra, 91. 
 
 (4.) To (in case the intestate leave brothers or sisters, 
 and nephews or nieces being the children of deceased 
 brothers and sisters, and grandnephews and -nieces being 
 the children of deceased nephews and nieces) : 
 
 1st. The brothers and sisters living, each the share such 
 would have taken had all the brothers and sisters deceased, 
 leaving issue, been alive at the death of the intestate. 
 
 2d. The nephews and nieces, children of deceased 
 brothers and sisters, each class amongst them the share 
 the parent would have taken had such been alive at the 
 death of the intestate. 
 
 3d. The grandnephews and -nieces, children of de- 
 ceased nephews and nieces, by representation, the share, 
 per stirpes, the parent would have taken if living at the 
 time of the death of the intestate : Section 4 of the Act 
 of 1833, supra; section 2 of Act of 27th April, 1855, 
 supra, 91 ; Krout's Appeal, 10 P. F. Smith, 380 ; Lane's 
 Appeal, 4 Casey, 487. 
 
 (6.) To (in default of brothers and sisters, nephews and 
 nieces, and grandnephews or -nieces) the descendants of 
 the brothers and sisters per capita: Sections 4 and 8 of 
 Act of 1833, supra, 88-89. 
 
 A 3. 
 Of one of either sex who dies leaving neither wife nor 
 
 * See page 186, infra. 
 
PERSONAL PROPERTY. 143 
 
 husband nor issue nor father nor mother nor collateral 
 relations as aforesaid, but gkandpakents or a grand- 
 
 PAEENT, BEING THE NEXT OF KIN BY TUE CIVIL LAW. 
 
 (1.) To such grandparents or grandparent : Section 
 7 of the Intestate Act of 1833, supra, 89 ; McDowell v. 
 Ad dams, 9 Wright, 430. 
 
 A 4. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor father nor mother nor collateral 
 relations as aforesaid, nor a grandparent as aforesaid, 
 
 but UNCLES AND AUNTS AS NEXT OF KIN. 
 
 (1.) To such uncles and aunts, j»er capita : Section 7 
 of Act of 1833, supra, 89 ; Montgomery v. Petriken, 5 
 Casey, 118. 
 
 A 5. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor father nor mother nor collateral 
 relations as aforesaid, nor a grandparent nor uncle nor 
 aunt, but first cousins as next of kin. 
 
 (1.) To such first cousins, by representation,* each class 
 taking equally amongst them the share the parent would 
 have taken if living at the time of the death of the in- 
 testate : Section 7 of Act of 1833, supra, 8y ; section 2 
 of Act of 1855, supra, 91 ; Brenneman's Appeal, 4 
 Wright, 115 ; Hayes's Aj^peal, 8 Norris, 256. 
 
 A 6. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor father nor mother nor collateral 
 relations as aforesaid, nor a grandparent, but uncles 
 AND AUNTS, and first cousins children of deceased 
 uncles and aunts. 
 
 * See page 186, infra. 
 
144 TABLE OF DISTEIBtTTION AND DESCENT. 
 
 (1.) To each uncle and aunt, the share such would 
 have taken had all the uncles and aunts deceased, leaving 
 issue, been alive at the time of the death of the intes- 
 tate : Section 7 of Act of 1833, supra, 89 ; section 2 of 
 Act of 27th April, 1855, supra, 91 ; Danner v. Shissler, 
 7 Casey, 289; Montgomery v. Petriken, 5 Casey, 118. 
 
 (2.) To each class of first cousins, by representation, 
 equally amongst the members of such class, the shares 
 per stirpes, the parent thereof would have been entitled 
 to take if living at the death of the intestate : Section 7 
 of the Act of 1833, supra, 89 ; section 2 of the Act of 27th 
 April, 1855, supra, 91 ; Danner v. Shissler, 7 Casey, 289. 
 
 A 7. 
 
 Of one of either sex who dies lea,ving neither wife nor 
 husband nor kindred as aforesaid, but neakest of kist 
 
 IN SOME OTHER MOEE REMOTE DEGREE, by the Civil LaW. 
 
 (1.) To such kin per capita ; Section 7 of the Act of 
 1833, supra, 89. Section 8 of the said act, which pro- 
 vides, " that there shall be no representation admitted 
 amongst collaterals after brothers' and sisters' children," 
 is only repealed pro tanto by the 2d section of the Act of 
 27th April, 1855, supra, 91 ; Brenneman's Appeal, 4 
 Wright, 115. 
 
 A 8. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor kin of any kind. 
 
 (1.) To the Commonwealth of Pennsylvania by es- 
 cheat : Section 12 of the Act of 1833, supra, 90; section 
 1 of Act of 17th April, 1869, supra, 91. 
 
 B 1. 
 
 Of a male married intestate who dies leaving no issue 
 of a deceased child, but a widow and children. 
 
PERSONAL PKOPEETY, 145 
 
 (1.) To the widow, one-third absolutely: Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the children, two-thirds per capita: Section 
 1 of Act of 1833, supra, 87. 
 
 B 2. 
 
 Of a male married intestate who dies leaving no chil- 
 dren nor descendant of a deceased grandchild,, but A 
 
 WIDOW AND GRANDCHILDEEN. 
 
 (1.) To the widow, one-third absolutely: Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the grandchildren, two-thirds per capita : 
 Section 2 of Act of 1833, supra, 87 ; Storey's Appeal, 2 
 Norris, 97 ; Person's Appeal, 24 P. F. Smith, 123 ; 
 Eshleman's Appeal, ibid., 42. 
 
 B 3. 
 
 Of a male married intestate who dies leaving no chil- 
 dren, but A WIDOW AND DESCENDANTS OTHER THAN AS 
 ABOVE, ALL IN THE SAME DEGREE OF CONSANGUINITy. 
 
 (1.) To the widow, one-third absolutely : Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the descendants, two-thirds per capita : Sec- 
 tion 2 of Act of 1833, supra, 87 ; Person's Appeal, 24 
 P. P. Smith, 123. 
 
 B 4. 
 
 Of a male married intestate who dies leaving a 
 
 WIDOW AND DESCENDANTS IN DIFFERENT DEGREES OF CON- 
 SANGUINITY, THE MORE REMOTE OF THEM BEING THE IS- 
 SUE OF A DECEASED CHILD, GRANDCHILD, OR OTHER DE- 
 SCENDANT. 
 
 (1.) To the widow, one-third absolutely : Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the descendants, two-thirds, to be distributed 
 as follows : 
 
 10 
 
146 TABLE OF DISTRIBUTION AND DESCENT. 
 
 1st. To each living child of the intestate, the share 
 such child would have been entitled to had all" the chil- 
 dren deceased, leaving issue, been living at the time of 
 the death of the intestate. 
 
 2d. To each grandchild, if there be no children, in 
 like manner the share it would have received if all the 
 grandchildren who shall then be dead, leaving issue, had 
 been living at the death of the intestate, and so on, in 
 like manner, to the remotest degree. 
 
 Sid. In every such case, the issue of such deceased 
 child, grandchild, or other descendant, shall take, by 
 representation of their parents respectively, such share 
 only as would have descended to such parents if they 
 had been living at the death of the intestate : Section 2, 
 article 4, of Act of 1833, supra, 88 ; The Girard Life 
 Insurance Company v. Wilson, 7 P. F. Smith, 182 ; Mc- 
 Conkey v. McConkey, 9 Watts, 352 ; Hughes's Appeal, 
 7 P. F. Smith, 179. 
 
 B 5. 
 
 Of a male married intestate who dies leaving no issue, 
 
 but A WIDOW, AND FATHEK AND MOTHER, OE FATHER OR 
 MOTHEK. 
 
 (1.) To the widow, one-half absolutely : Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the father and mother, or survivor, one-half 
 absolutely : Section 3 of Act of 1833, supra, 88 ; see 
 Gillan v. Dixon, 15 P. F. Smith, 395. 
 
 B 6. 
 Of a male married intestate who dies leaving no issue, 
 
 but A WIDOW AND COLLATERAL HEIRS, AS STATED IN THE 
 
 Acts of 1833 and of 1855, as follows : 
 
 (1.) To the widow, one-half absolutely : Section 1 of 
 Act of 1833, supra, 87. 
 
PERSONAL PROPERTY. 147 
 
 (2.) To the following collateral heirs, one-half, to be 
 distributed as follows : 
 
 1st. To (if there be no children or grandchildren of 
 deceased brothers or sisters of the intestate) the brothers 
 and sistersper capita: Section 4, article 5, of Act of 1833, 
 supra, 89 ; section 2 of Act of 185o, supra, 91. 
 
 2d. To (if there be no grandchildren of deceased 
 brother or sister living, or brothers or sisters living, 
 but nephews and nieces) such nephews and nieces per 
 capita : Section 4, article 5, of Act of 1833, supra, 88 ; 
 Miller's Appeal, 4 Wright, 387. 
 
 3d. To (if there be brothers and sisters and nephews 
 and nieces and children of nephews and nieces) : 
 
 A. Each living brother and sister, the share such 
 would have been entitled to receive had all the brothers 
 and sisters, deceased leaving issue, been alive at the time 
 of the death of the intestate. 
 
 B. Each class of living nephews or nieces by represen- 
 tation, such share per stirpes as the parent would have 
 taken if living at the time of the death of the intestate. 
 Section 4, article 5, of Act of 1833, supra, 88, 89 ;, Krout's 
 Appeal, 10 P. F. Smith, 380. 
 
 C. Each class of living children of nephews and nieces 
 (grandnephews and grandnieces of the intestate) by 
 representation, such share per stirpes as the parent 
 would have taken if living at the time of the death 
 of the intestate : Section 2 of Act of 27th April, 1855, 
 supra, 91 ; Lane's Appeal, 4 Casey, 487; Krout's Ap- 
 peal, 10 P. F. Smith, 380. 
 
 B 7. 
 
 Of a male married intestate who dies leaving no issue, 
 no brothers nor sisters nor descendants thereof, as before 
 stated, BUT A widow ai^d next of kin to the intestate 
 
148 TABLE OP DISTRIBUTION AND DESCENT. 
 
 BEING THE DESCENDANTS OF BEOTHEES AND SISTEES MOEE 
 EEMOTE THAN GEANDCHILDEEN. 
 
 (1.) To the widow, one-half absolutely. 
 (2.) To such descendants of brothers and sisters per 
 capita: Section 4, article 5, of the Act of 1833, supra, 89. 
 
 B 8. 
 
 Of a male married intestate who dies leaving no issue, 
 no father nor mother nor collateral relatives as before 
 stated, BUT A widow and geandpaeents oe a geand- 
 paeent, who aee then next of kin by the civil 
 Law. 
 
 (1.) To the widow, one-half absolutely : Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the grandparents or grandparent, one-half: 
 Section 7 of Act of 1833, supra, 89 ; McDowells. Adams, 
 9 Wright, 430. 
 
 B 9. 
 
 Of a male married intestate who dies leaving no issue, 
 no father nor mother nor collateral relations as before 
 stated, nor grandparent, but a widow and uncles and 
 
 AUNTS as next OF KIN. 
 
 (1.) To the widow, one-half absolutely : Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the uncles and aunts per capita : Section 7 of 
 Act of 1833, supra, 89; Montgomery v. Petriken, 5 
 Casey, 118. 
 
 B 10. 
 
 Of a male married intestate who dies leaving no issue, 
 no father nor mother nor collateral relatives, as before 
 stated, nor grandparent nor uncles nor aunts, but a 
 
 WIDOW AND FIEST COUSINS AS NEXT OF KIN. 
 
 (1.) To the widow, one-half absolutely: Section 1 of 
 Act of 1833, supra, 87. 
 
PERSONAL PEOPJERTY. 149 
 
 (2.) To the first cousins, one-lialf by representation* as 
 in A 5 : Section 7 of Act of 1833, supra, 89 ; section 
 2 of Act of 27th April, 1855, supra, 91 ; Brenneraan's 
 Appeal, 4 Wright, 115; Hayes's Appeal, 8 Norris, 256. 
 
 B 11. 
 
 Of a male married intestate who dies leaving no issue, 
 no father nor mother nor collateral relatives as afore- 
 said, nor grandparent, but a widow and uncles and 
 
 AUNTS AND COUSINS CHILDREN OF DECEASED UNCLES AND 
 
 AUNTS. 
 
 (1.) To the widow, one-half absolutely: Section 1 of 
 Act of 1833, supra, 87. 
 
 (2.) To the uncles and aunts and first cousins children 
 of deceased uncles and aunts, one-half, to be distributed 
 as follows : 
 
 1st. To each uncle and aunt, the share such would 
 have taken, had all the uncles and aunts, deceased leaving 
 issue, been alive at the time of the death of the intestate : 
 Section 7 of Act of 1833, supra, 89 ; section 2 of Act of 
 27th April, 1855, supra, 91 ; Banner v. Shissler, 7 
 Casey, 289; Montgomery v. Petriken, 5 Casey, 118. 
 
 2d. To each class of first cousins by representation, 
 equally amongst the members of such class the share 
 the parent thereof would have been entitled to have taken 
 if living at the time of the death of the intestate : Sec- 
 tion 7 of the Act of 1833, supra, 89 ; section 2 of the 
 Act of 27th April, 1855, supra, 91 ; Banner v. Shissler, 
 7 Casey, 289. See, as to meaning of the word represen- 
 tation, Mackeldey's Roman Law, by Dropsie, pages 160 
 and 503. 
 
 B 12. 
 
 Of a male married intestate who dies leaving no issue, 
 no father nor mother nor collateral relatives as aforesaid, 
 
 * See page 186, infra. 
 
150 TABLE OF DISTRIBUTION AND DESCENT, 
 
 nor grandparents, but a widow and kin in some moee 
 
 EEMOTE DEGEEE BY THE CtVIL LaW. 
 
 (1.) To the widow, one-half absolutely : Section 1 of 
 Act of 1883, supra, 87. 
 
 (2.) To the next of kin, one-half ^er capita: Sections 
 7 and 8 of Act of 1833, supra, 89. 
 
 B 13. 
 
 Of a male married intestate who dies leaving no issue, 
 and no father nor mother nor kindred of any kind, but 
 
 A WIDOW. 
 
 (1.) To the widow, all the personal estate : Section 10 
 of Act of 1833, supra, 89. 
 
 C 1. 
 
 Of a female married intestate who dies leaving no is- 
 sue of a deceased child, but a widoweb, and childken. 
 
 (1.) To the widower, a share equal to the share of each 
 of the children : Section 9 of Act of 11th April, 1848, 
 supra, 91. 
 
 (2.) To each child, a share equivalent to what would 
 
 be the sum, dividing the estate by the number of the 
 
 children and the widower : Section 9 of Act of 11th April, 
 
 1848, supra, 91. 
 
 C 2. 
 
 Of a female married intestate leaving no children and 
 no descendant of a deceased grandchild, but a widoweb 
 
 AND GRANDCHILDKEN. 
 
 (1.) To the widower, a share equal to the share each 
 of the children deceased leaving issue would have taken 
 if living : Section 9 of Act of 11th April, 1848, supra, 91. 
 
 (2.) To the grandchildren, the balance per capita: 
 Section 2 of Act of 1833, supra, 87 ; Story's Appeal, 2 
 Norris, 97; Person's Appeal, 24 P. F., Smith, 123; 
 Eshleman's Appeal,, ibid., 42. 
 
PERSONAL PEOPERTY. 151 
 
 C 3. 
 
 Of a female married intestate who dies leaving no 
 children, but a widowee and geandchildren and 
 
 GREAT-GEANDCHILDKEN. 
 
 (1.) To the widower, a share equal to the share each 
 of the children, deceased leaving issue, would have been 
 entitled to, had such been living at the death of the in- 
 testate : Section 9 of Act of 11th April, 1848, supra, 91. 
 
 (2.) To the grandchildren, per stirpes, each class 
 taking amongst them the share the parent would have 
 taken if living at the time of the death of the intestate : 
 Section 9 of Act of 11th April, 1848, supra, 91. 
 
 (3.) To the great-grandchildren, per stirpes, each 
 class taking amongst them the share the parent would 
 have taken if living at the time of the death of the in- 
 testate : Section 9 of Act of 11th April, 1848, supra, 
 91. 
 
 C 4. 
 
 Of a female married intestate who dies leaving no 
 children and no grandchildren, but a widowee and 
 
 GEEAT-GEANDCHILDEEN. 
 
 (1.) To the widower, a share equal to the share each of 
 the children, deceased leaving issue, would have taken if 
 living at the time of the death of the intestate : Section 
 9 of Act of 11th April, 1848, supra, 91. 
 
 (2.) To the great-grandchildren, the balance per 
 capita : Section 2 of the Act of 1833, supra, 87 ; Story's 
 Appeal, 2 Norris, 97 ; Person's Appeal, 24 P. F. Smith, 
 123 ; Eshleman's Appeal, ibid., 42. 
 
 C 5. 
 Of a female married intestate who dies leaving a 
 
 WIDOVPER AND CHILDEEN AND GEANDCHILDEEN, OR IS- 
 SUE IN A MOEE REMOTE DEGEEE. 
 
152 TABLE OF DISTRIBUTION AND DESCENT. 
 
 (1.) To the widower, a share equal to the share of each 
 of the children alive and dead leaving issue : Section 9 
 of Act of 11th April, 1848, supra, 91. 
 
 (2.) To each child living, a share equivalent to what 
 would be the sum, dividing the estate by the number of 
 the children alive and dead leaving issue and the wid- 
 ower : Section 9 of Act of 11th April, 1848, supra, 91. 
 
 (3.) To the grandchildren or issue as aforesaid, j^er 
 stirpes, each class taking amongst them the share the 
 parent would have taken if living at the time of the 
 death of the intestate : Section 9 of Act of 11th April, 
 1848, supra, 91. 
 
 C 6. 
 
 Of a female married intestate leaving no issue, but a 
 
 WIDOWEB AND COLLATERAL EELATIONS OR NEXT OF KIN. 
 
 (1.) To the widower, all the personalty : Section 1 of 
 Act of 8th April, 1833, supra, 87 ; section 9 of Act of 
 11th April, 1848, supra, 91. 
 
WHEN ACQUIRED BY PURCHASE. 153 
 
 REAL PROPERTY HELD BY INTESTATES IN PENN- 
 SYLVANIA, AS HEREINAFTER SET FORTH, 
 DESCENDS AS FOLLOWS : 
 
 FIRST. 
 
 When Acquired by the Intestate by Puechase, 
 BDT NOT Given or Devised by a Relation. See 
 section 9 of Act of 1833, supra, 89. 
 
 A 1. 
 
 Of one of either sex who dies leaving neither wife 
 nor husband nor issue, but a father and mother, or 
 either, and collateral heirs, as set forth as follows : 
 
 (1.) To the father and mother, or the survivor, for life : 
 Section 3 of Act of 1833, supra, 88 ; Moyer v. Thomas, 
 2 Wright, 426. 
 
 (2.) To the collateral heirs of the whole blood, the fee 
 (subject to (1.)), as follows: 
 
 1st. To (where there be no nephews and nieces, chil- 
 dren of deceased brothers and sisters, or grandnephews 
 or -nieces, grandchildren of brothers and sisters) the 
 brothers and sisters of the whole blood, per capita : Sec- 
 tion 4, article 1, of Act of 1833, supra, 88 ; section 2- of 
 Act of 1855, supra, 91 ; Stark v. Stark, 5 P. F. Smith, 62. 
 
 2d. To (where there be neither brothers nor sisters 
 nor grandnephews or -nieces, grandchildren of deceased 
 brothers and sisters) the nephews and nieces of the whole 
 blood, per capita: Section 4, article 2, of Act of 1833, su- 
 pra, 88 ; section 2 of Act of 1855, supra, 91. 
 
 3d. To (in default of brothers and sisters, nephews and 
 nieces of the whole blood) the grandnephews and -nieces 
 of the whole blood by representation (for the meaning 
 of the word representation, see Mackeldey's Roman Law, 
 
154 LAWS OF DESCENT OF REALTY. 
 
 by Dropsie, pages' 160 and 503), each class taking 
 equally amongst them the share the parent would have 
 taken if living at the time of the death of the intestate : 
 Section 2 of Act of 1855, supra, 91.* 
 
 4th. To (in case the intestate leave of the whole blood 
 brothers or sisters, and also nephews or nieces, and grand- 
 nephews or -nieces, being the children and grandchildren 
 of deceased brothers and sisters) : 
 
 A. The said brothers and sisters living, each the share 
 such would have taken, had all the said brothers and 
 sisters, deceased leaving issue, been alive at the death of 
 the intestate. 
 
 B. The nephews and nieces, children of deceased 
 brothers and sisters of the whole blood, each class, 
 amongst the members thereof, the share the parent there- 
 of would have taken had such been alive at the death of 
 the intestate. 
 
 C The grandnephews and -nieces, children of de- 
 ceased nephews and nieces, each class taking by repre- 
 sentation the share the parent of such would have taken 
 had such been alive at the time of the death of the intes- 
 tate : Section 4, article 3, of Act of 1833, supra, 88 ; sec- 
 tion 2 of Act of 1855, supra, 91 ; Krout's Appeal, 10 
 P. F. Smith, 380 ; Lane's Appeal, 4 Casey, 487. 
 
 5th. To (in default of brothers and sisters, nephews 
 and nieces, and grandnephews or -nieces, as aforesaid) 
 the descendants of the said brothers and sisters of the 
 whole blood, per capita : Sections 4 and 8 of Act of 1833, 
 supra, 88, 89. 
 
 A 2. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral heirs of the whole blood 
 and descendants thereof as before said, but a fathek 
 
 AND MOTHER OR EITHER. 
 
 * See page 186, infra. 
 
WHEN ACQUIRED BY PURCHASE. 155 
 
 (1.) To the father and mother, or survivor, in fee : 
 Section 5 of Act of 1833, supra, 89; McWilliams v. Ross, 
 10 Wright, 369. 
 
 A 3. 
 
 Of one of either sex who dies leaving neither uife nor 
 husband nor issue nor collateral relations of the whole 
 blood as aforesaid, nor father nor mother, but beothees 
 
 ABTD SISTEKS OF THE HALF BLOOD. 
 
 (1.) To the said brothers and sisters of the half blood 
 of the intestate, and to their issue in like manner respec- 
 tively as is hereinbefore set forth in cases of brothers and 
 sisters of the whole blood and their issue : Section 6 of 
 Act of 1833, supra, 89 ; Baker v. Chalfant, 5 Wharton, 
 477. 
 
 A 4. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral relations as aforesaid, 
 nor father nor mother, but geabtdpaeents oe a geand- 
 
 PAEENT being THE NEXT OF KIN BY THE CiVIL LaW. 
 
 (1.) To the said grandparents, or survivor, in fee: 
 Section 7 of Actof 1833, supra, 89; McDowell v. Addams, 
 9 Wright, 430. 
 
 A 5. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral relations as aforesaid, 
 nor father nor mother nor grandparents, nor children of 
 deceased uncles and aunts, but uncles and aunts ieee- 
 
 SPECTIVE OF blood AS NEXT OF KIN. 
 
 (1.) To the said uncles and aunts irrespective of blood, 
 per capita : Section 7 of Act of 1833, supra, 89 ; Banner 
 V. Shissler, 7 Casey, 289. 
 
 A 6. 
 
 Of one of either sex who dies leaving neither wife nor 
 
156 LAWS OF DESCENT OP REALTY. 
 
 husband nor issue nor collateral relations as aforesaid, 
 nor father nor mother nor grandparent, nor uncle nor 
 
 aunt, BUT FIRST COUSINS IRRESPECTIVE OF BLOOD, AS 
 NEXT OF KIN. 
 
 (1.) To such first cousins by representation* each class 
 taking amongst the members thereof the share the parent 
 of such would have taken if living at the time of the 
 death of the intestate : Section 7 of Act of 1833, supra, 89 ; 
 section 2 of Act of 1855, supra, 91; Brenneman's Ap- 
 peal, 4 Wright, 115; Hayes's Appeal, 8 JSTorris, 256; 
 Kiegel's Appeal, 12 Weekly Notes, 179. 
 
 A 7. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral relations as aforesaid, 
 nor father nor mother nor grandparent, but uncles 
 
 AND aunts and FIRST COUSINS, CHILDREN OF DECEASED 
 
 UNCLES OR AUNTS. 
 
 (1.) To each uncle and aunt, irrespective of blood, the 
 share such would have taken had all the uncles and 
 aunts, deceased leaving issue, been alive at the time of 
 the death of the intestate: Section 7 of Act of 1833, supra, 
 89 ; section 2 of Act of 1855, supra, 91 ; Danner v. 
 Shissler, 7 Casey, 289 ; Montgomery v. Petriken, 5 
 Casey, 118. 
 
 (2.) To each class of first cousins, irrespective of blood, 
 by representation equally amongst the members thereof, 
 such share as the parent thereof would have been enti- 
 tled to take if living at the death of the intestate : Sec- 
 tion 7 of Act of 1833, supra, 89 ; section 2 of Act of 
 1855, supra, 91 ; Danner v. Shissler, 7 Casey, 289. 
 
 A 8. 
 
 Of one of either sex who dies leaving neither wife nor 
 
 * See page 186, infra. 
 
WHEN ACQUIEED BY PURCHASE. 157 
 
 husband nor kindred as aforesaid, but nearest of kin 
 
 IN SOME MOKE REMOTE DEGREE. 
 
 (1.) To such nearest of kin, per capita : Section 7 of 
 Act of 1833, supra, 89 ; section 8 of the said act, which 
 provides "that there shall be no representation admitted 
 amongst collaterals after brothers' and sisters' children," 
 is only repealed pro tanto by section 2 of the Act of 
 1^55, supra, 21; Brenneman's Appeal, 4 Wright, 115 ; 
 Hayes's Appeal, 8 Norris, 256. 
 
 A 9. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor kin of any kind. 
 
 (1.) To the Commonwealth of Pennsylvania by es- 
 cheat: Section 12 of Act of 1833, supra, 90; section 1 
 of Act of 1869, supra, 91. 
 
 B 1. 
 
 Of a married intestate who dies leaving no issue of a 
 deceased child, but a spodse, a father aj^d mother or 
 
 EITHER, AND CHILDREN. 
 
 If Intestate be a Male, 
 
 (1.) To the widow, her dower of one-third : Section 1, 
 article 1, of Act of 1833, supra, 87. 
 
 (2.) To the children, per capita, the fee : Section 2 of 
 Act of 1833, supra, 87. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy: Section 
 1, article 3, Act of 1833, supra, 87. 
 
 (2.) To the children, per capita, the fee : Section 2, 
 article 1, Act of 1833, supra, 87. 
 
158 LAWS OP DESCENT OF REALTY. 
 
 B 2. 
 
 Of a married intestate who dies leaving no children 
 nor descendants of a deceased grayidchild, but a spouse, a 
 
 FATHER AND MOTHEE, OR EITHER, AND GRANDCHILDREN. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her dower of one-third, as in B 1. 
 (2.) To the grandchildren, fer capita, the fee : Sec- 
 tion 2, article 2, Act of 1833, supra, 87. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the grandchildren, per capita, the fee, as above. 
 
 B 3. 
 
 Of a married intestate who dies leaving no children, 
 
 BUT A SPOUSE, A FATHER AND MOTHER, OR EITHER, AND 
 DESCENDANTS IN ANY OTHER DEGREE OF CONSANGUINITY, 
 HOWEVER REMOTE FROM HIM, AND ALL IN THE SAME 
 DEGREE OP CONSANGUINITY TO HIM. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her do\yer of one-third, as in B 1. 
 (2.) To the said descer^dants, per capita, the fee : Sec- 
 tion 2, article 3, Act of 1833, suprcf,, 88. 
 
 If Intestate be a Female. 
 
 (1 .) To the widower, his estate by the courtesy, as in B 1 . 
 (2.) To the said descendants, per capita, the fee, as 
 above. 
 
 B 4. 
 
 Of a married intestate who dies leaving A spouse, a 
 
 FATHER AND MOTHER, OR EITHER, AND DESCENDANTS IN 
 
WHEN ACQUIRED BY PUHCHASE. 169 
 
 DIFFERENT DEGREES OF CONSANGUINITY, THE MOKE RE- 
 MOTE OF THEM BEING THE ISSUE OF A DECEASED CHILD, 
 GRANDCHILD, OR OTHER DESCENDANT. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her dower of one-third, as in B 1. 
 
 (2.) To the said descendants, as follows: 
 
 1st. To each living child of the intestate, the share of 
 the fee such child would have taken had all the chil- 
 dren deceased leaving issue been living at the death of 
 the intestate. 
 
 2d. To each living grandchild, if there be no children, 
 in like manner the share of the fee it would have taken 
 if all the grandchildren, deceased leaving issue, had been 
 living at the death of the intestate, and so on in like 
 manner to the remotest degree. 
 
 3d. In every such case the issue of such deceased child, 
 grandchild, or other descendant, shall take by represen- 
 tation of their parents respectively such share of the fee 
 only as would have descended to such parents if they 
 had been living at the death of the intestate : Section 2, 
 article 4, of Act of 1833, supra, 88; Girard Life In- 
 surance Company v. Wilson, 7 P. F. Smith, 182 ; Mc- 
 Conkey v. McConkey, 9 Watts, 352 ; Hughes's Appeal, 
 7 P. F. Smith, 179. 
 
 If Intestate be a Female. 
 
 (1.) To the widower,his estate by the courtesy, as in B 1. 
 (2.) To the descendants, as aforesaid. 
 
 B 5. 
 
 Of a married intestate who dies leaving no issue, but 
 
 A SPOUSE, A FATHER AND MOTHER, OR EITHER, AND COL- 
 LATERAL HEIRS, AS HEREINAFTER SET FORTH, OF THE 
 WHOLE BLOOD. 
 
160 LAWS or DESCENT OF REALTY. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half: Section 
 1, article 2, of Act of 1833, supra, 87. 
 
 (2.) To the father and mother, or either, a life estate : 
 Section 3 of Act of 1833, swpra, 88. 
 
 (3.) To the said collateral heirs, as follows, the fee : 
 
 1st. To (if there be no children or grandchildren of 
 brothers and sisters of the whole blood) the brothers and 
 sisters of the whole blood, per capita, the fee. 
 
 2d. To (if there be no brothers or sisters of the whole 
 blood living, or grandchildren of such brothers and sisters) 
 the nephews and nieces being the children of deceased 
 brothers and sisters of the whole blood, the fee,^er capita. 
 
 3d. To (if there be no brothers or sisters, or nephews 
 or nieces of the whole blood) the grandnephews and 
 -nieces, grandchildren of such brothers and sisters, the 
 fee, by representation, each class thereof taking amongst 
 the members thereof the share the parent thereof would 
 have taken if living at the death of the intestate.* 
 
 4th. To (in case the intestate leave of the whole blood 
 brothers and sisters, and also nephews and nieces, and 
 grandnephews and -nieces, being the children and grand- 
 children of deceased brothers and sisters of the whole 
 blood) : 
 
 A. The said brothers and sisters living, each the 
 share of the fee such would have taken had all such 
 brothers and sisters, deceased leaving issue, been living 
 at the death of the intestate. 
 
 B. The said nephews and nieces, children of deceased 
 brothers and sisters of the whole blood, each class thereof 
 amongst the members thereof the share of the fee the 
 parent thereof would have taken if living at the death 
 of the intestate. 
 
 * See page 186, infra. 
 
WHEJSr ACQUIRED BY PUECHASE. 161 
 
 C. The said grandnephews and -nieces, children of 
 such deceased nephews and nieces, each class thereof 
 amongst the members thereof the share of the fee the 
 parent thereof would have taken if living at the death 
 of the intestate : Section 4, article 3, of Act of 1833, su- 
 pra, 88 ; section 2 of Act of 1855, supra, 91 ; Krout's 
 Appeal, 10 P. F.Smith, 380; Lane's Appeal, 4 Casey, 487. 
 
 5th. To (in default of brothers and sisters, nephews 
 and nieces, and grandnephews and -nieces of the whole 
 blood, as aforesaid) the next of kin of the intestate being 
 the descendants of his brothers and sisters of the whole 
 blood, per capita, the fee : Section 4, article 4, of Act of 
 1833, supra, 89. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the father and mother, or survivor, the possi- 
 bility of a life estate on the death of the widower : Sec- 
 tion 3 of Act of 1833, supra, 88. 
 
 (3.) To the collateral heirs, as aforesaid. 
 
 B.6. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs of the whole blood, as aforesaid, bdt A 
 
 SPOUSE, AND A FATHER AND A MOTHEE, OE EITHEE. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half: Article 
 2 of section 1 of Act of 1833, supra, 87. 
 
 (2.) To the father and mother, or the survivor, the fee : 
 Section 5 of Act of 1833, supra, 89. 
 
 If Intestate be a Female. 
 
 (1 .) To the widower, his estate by the courtesy, as in B 1 . 
 
 11 
 
162 LAWS OF DESCENT OF REALTY. 
 
 (2.) To the father and mother, or the survivor, the fee, 
 as above. 
 
 B 7. 
 
 Of a married intestate who dies leaving , no issue, no 
 collateral heirs of the whole blood, no father or mother, 
 
 BUT A SPOUSE, AND BROTHEKS AND SISTEES OF THE HALF 
 BLOOD OF THE IN^TESTATE. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 
 (2.) To the brothers and sisters of the half blood, the 
 fee, and to their issue in like manner, respectively as is 
 hereinbefore set forth in cases of brothers and sisters 
 of the whole blood and their issue : Section 6, Act of 
 1833, supra, 89 ; Baker v. Chalfant, 5 Wharton, 477 ; 
 see B 5, supra. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the brothers and sisters of the half blood, as 
 before set forth. 
 
 B 8. 
 
 Of a married intestate who dies leaving no issue nor 
 collateral heirs of the whole blood, as aforesaid, no father 
 nor mother, and no brothers and sisters of the half blood, 
 
 BUT A SPOUSE, AND GBANDPAKENTS OR A GRANDPARENT, 
 BEING THE NEXT OF KIN BY THE CIVIL LAW. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in 
 B6. 
 
 (2.) To the grandparents or grandparent, per capita, 
 the fee : Section 7 of Act of 1833, supra, 89 ; McDowell 
 V. Addams, 9 Wright, 430. 
 
WHEN ACQTJIEED BY PURCHASE. 163 
 
 If Intestate be a Female. 
 
 (1.) To tBie widower, his estate by the courtesy, as in 
 B 1. 
 
 (2.) To the grandparents or grandparent, as before- 
 said. 
 
 B 9. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs, as beforesaid, no father nor mother, no 
 brothers and sisters nor issue thereof of the half blood, and 
 no first cousins, children of deceased uncles and aunts, 
 
 BUT A SPOUSE, AND UNCLES AND AUNTS OF THE WHOLE 
 BLOOD, AND UNCLES AND AUNTS OF THE HALF BLOOD. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in 
 B5. 
 
 (2.) To the uncles and aunts irrespective of blood, 
 per capita, the fee : Section 7 of Act of 1833, supra, 89 ; 
 Danner v. Shissler, 7 Casey, 289. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the uncles and aunts, as abovesaid. 
 
 B 10. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs, as beforesaid, no father nor mother, no 
 brother nor sister of the half blood, no uncle nor aunt, as 
 beforesaid, but a spouse, and first cousins, childken 
 OF deceased uncles and aunts, some of whole blood 
 some of half blood. 
 
 If Intestate be a Male. 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 
164 LAWS OF DESCENT OP REALTY. 
 
 (2.) To the cousins, irrespective of blood, per stirpes* 
 
 the fee, each class thereof taking amongst the members 
 
 thereof the share the parent would have taken if living 
 
 at the death of the intestate: Kiegel's Appeal, 12 Weekly 
 
 Notes, 179. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the cousins the fee as abovesaid :* Section 7 of 
 Act of 1833, supra, 89 ; section 2 of Act of 1855, supra, 
 91 ; Brenneman's Appeal, 4 Wright, 115 ; Hayes's Ap- 
 peal, 8 Norris, 256; Kiegel's Appeal, 12 Weekly Notes, 
 179. 
 
 B 11. 
 
 Of a married intestate who dies leaving no issuCf no col- 
 lateral heirs as beforesaid, no father nor mother, no brother 
 nor sister of the half blood, no grandparent, but a spotjse, 
 
 AND UNCLES AND AUNTS, AND FIRST COUSINS, CHILDREN 
 OF DECEASED UNCLES AND AUNTS. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in 
 B5. 
 
 (2.) To each uncle and aunt, the share of the fee such 
 would have taken had all the uncles and aunts, deceased 
 leaving issue, been living at the death of the intestate. 
 
 (3.) To each class of first cousins, by representation, 
 amongst such class the share of the fee the parent would 
 have taken had such been living at the death of the 
 intestate. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 * See page 186, infra. 
 
WHEN ACQUIBED BY PUECHASE. 165 
 
 (2.) To tlie uncles and aunts, as abovesaid. 
 
 (3.) To the cousins, as abovesaid : Section 7 of Act 
 of 1833, supra, 89 ; section 2 of Act of 1855, supra, 91 ; 
 Danner v. Shissler, 7 Casey, 289. 
 
 B 12. 
 
 Of a married intestate wbo dies leaving no issue, no 
 collateral heirs as beforesaid, no father nor mother, no 
 brother nor sister of the half blood nor issue thereof, no 
 grandparent, no uncle nor aunt nor first cousin, but a 
 
 SPOUSE, AND BTEXT OP KIN IN A MOKE BEMOTE DEGREE. . 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 (2.) To the next of kin, per capita, as in A 8. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the next of Kin, per capita, the fee, as in A 8. 
 
 B. 13. 
 
 Of a married intestate who dies leaving no issue nor 
 kin of any kind, but a spouse. 
 
 (1.) To the spouse, the fee : Section 10 of Act of 1833, 
 supra, 89 ; see Broad Top Coal Co. v. Eiddlesburg Coal 
 Co., 15 P. F. Smith, 435. 
 
 B 14. 
 
 Of an intestate who dies leaving no issue, kin, nor 
 spouse. 
 
 (1.) To the Commonwealth of Pennsylyania, by es- 
 cheat, as in A 9. 
 
166 LAWS OF DESCENT OF REALTY. 
 
 SECOND. 
 
 When Acquired by the Intestate by descent 
 FROM A Parent of the Intestate, ' who was the 
 Purchaser. 
 
 C 1. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue, but a father or mother from whom 
 the estate did not descend, and collateral heirs 
 
 AS IN B 5. 
 
 (1.) To such father or mother, for life: Section 3 of 
 Act of 1833, supra, 88. 
 
 (2.) To such collateral heirs, as in B 5. 
 
 C 2. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral heirs as in B 5, but a 
 
 father or mother AS IN C 1, AND HALF BROTHERS AND 
 SISTERS, CHILDREN, BY ANOTHER FATHER OR MOTHER, OF 
 THE PARENT FROM WHOM THE ESTATE DID DESCEND. 
 
 (1.) To such father or mother, a life estate, as in C 1. 
 
 (2.) To such half brothers and sisters, per capita, the 
 fee, and to their issue, as in cases of other collateral 
 heirs, as in B 5 : Baker v. Chalfant, 5 Wharton, 477. 
 
 C 3. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral heirs as in C 1, nor 
 half brothers and sisters as in C 2, nor first cousins, chil- 
 dren of deceased uncles and aunts of the blood of the pur- 
 chaser, BUT A FATHER OR MOTHER AS IN CI, AND UNCLES 
 AND AUNTS, BROTHERS AND SISTERS (OF THE BLOOD WHOLE 
 OR half) of THE PARENT FROM WHOM THE ESTATE DE- 
 SCENDED. 
 
WHEN ACQUIRED FROM PARENT. 167 
 
 (1.) To the said father or mother, an estate for life, 
 as in C 1. 
 
 (2.) To the said uncles and aunts, per capita, the fee : 
 May V. Espenshade, 1 Pearson, 139 ; Danner v. Shissler, 
 7 Casey, 289 ; Estate of Wm. Lee, 15 Philadelphia, 645. 
 
 C 4. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral heirs as in C 1, nor 
 half brothers as in C 2, but a father ok mothek as 
 
 IN C 1, AND EIKST COUSINS OF THE BLOOD OF THE PUR- 
 CHASER. 
 
 (1.) To such father or mother, an estate for life, as in 
 CI. 
 
 (2.) To each class of such first cousins, by representa- 
 tion, the fee: Section 7 of Act of 1833, supra, 89; sec- 
 tion 2 of Act of 1855, supra, 91 ; Hayes's Appeal, 8 
 Norris, 256.* 
 
 C 5. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral heirs as in C 1, nor 
 half brothers and sisters as in C 2, but a father and 
 
 MOTHER AS IN C 1, AND UNCLES AND AUNTS OF THE BLOOD 
 OF THE PARTY FROM WHOM THE ESTATE DESCENDED, AND 
 FIRST COUSINS, CHILDREN OF DECEASED UNCLES AND AUNTS 
 OF THE BLOOD OF THE SAID PARENT, THE PURCHASER. 
 
 (1.) To the said father and mother, a life estate, as in 
 CI. 
 
 (2.) To each of such uncles and aunts, the share the 
 same would have taken had all the uncles and aunts 
 of the blood of the purchaser deceased leaving issue 
 been alive at the death of the intestate. 
 
 (3.) To each class of the said first cousins, by repre-. 
 sentation, the share of the fee the parent thereof would 
 
 * See page 186, infra. 
 
168 LAWS OP DESCENT OP EEALTY. 
 
 have taken had such been living at the death of the in- 
 testate : Danner v. Shissler, 7 Casey, 289 ; Brenneman's 
 Appeal, 4 Wright, 115; Hayes's Appeal, 8 Norris, 256. 
 
 C 6. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue nor collateral heirs, as mentioned in 
 C 1, noi^ uncles and aunts nor first cousins of the blood 
 of the purchaser, but a fathee, or a mothee, as set 
 
 FOETH IN C 1, AND NEXT OF KIN OF THE BLOOD OF THE 
 PUECHASEE in THE ASCENDING LINE. 
 
 (1.) To the said father or mother, for life : Section 3 
 of Act of 1833, supra, 88. 
 
 (2.) To the next of kin, by the civil law, of the blood 
 of the purchaser in the ascending line, the fee, per cap- 
 ita : Brenneman's Appeal, 4 Wright, 115; Hayes's Ap- 
 peal, 8 Norris, 256. 
 
 C 7. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue, nor kindred of any kind of the blood 
 of the purchaser, in the descending line, but a father 
 
 OR A MOTHER, AS IN C 1, AND NEXT OF KIN OF THE PUE- 
 CHASEE IN THE DESCENDING LINE. 
 
 (1.) To the said father or mother, an estate for life, as 
 in 01. 
 
 (2.) To the said next of kin, by the civil law, of the 
 purchaser in the descending line, the fee, per capita : 
 May V. Espenshade, 1 Pearson, 139. 
 
 C 8. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue, nor brothers nor sisters, but a geand- 
 
 PAEENT OF THE BLOOD OF THE PUECHASEE, AND AN 
 UNCLE OF THE BLOOD OF THE PUECHASEE. 
 
 (1.) To such grandparent, as next of kin of the blood 
 
WHEN ACQUIRED FROM PARENT. 169 
 
 of the purchaser, the fee : Nichol v. Hall, Pittsburgh L. 
 J. of 1881, 239 ; contra, May v. Espenshade, 1 Pearson, 
 139. 
 
 C 9. 
 
 Of one of either sex who dies leaving neither husband 
 nor wife nor issue nor collateral relations nor kindred 
 of the blood of the purchaser, nor father nor mother, as 
 aforesaid, but next op kin by the civil law in a moke 
 
 REMOTE DEGREE. 
 
 (1.) To such next of kin, in fee; and such classifica- 
 tion would be, besides those already stated : 
 
 1st. Grandparents and their issue. 
 
 2d. Great-grandparents and their issue. 
 
 3d. And so on ad infinitum. 
 
 See Dowell v. Thomas, 1 Harris, 41 ; Lewis v. Gor- 
 man, 5 Barr, 164. 
 
 C 10. 
 
 Of one of either sex who dies leaving neither husband 
 nor wife nor issue, nor father nor mother, nor kindred of 
 any kind. 
 
 (1.) To the Commonwealth of Pennsylvania by es- 
 cheat : Section 12 of Act of 1833, supra, 90. 
 
 D 1. 
 
 Of a married intestate who dies leaving no issue of a 
 deceased child, but a spouse, a father ob mother, 
 
 FROM WHOM THE ESTATE DID NOT DESCEND, AND CHIL- 
 DREN. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her dpwer of one-third : Section 1, 
 article 1, of Act of 1833, supra, 87. 
 
 (2.) To the children, per capita, the fee, as in B 1. 
 
170 LAWS OF DESOPNT OP KEALTY. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy: Sec- 
 tion 1, article 3, of Act of 1833, supra, 87. 
 
 (2.) To the children, per capita, the fee, as in B 1. 
 
 D 2. 
 
 Of a married intestate who dies leaving no children 
 nor descendants of a deceased grandchild, but a spouse, 
 
 A FATHER OE MOTHER AS AFORESAID, AND GRANDCHIL- 
 DREN. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her dower of one-third, as in B 1. 
 (2.) To the grandchildren, ^er capita, the fee, as in B 2. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the grandchildren, per capita, the fee, as in B 2. 
 
 D 3. 
 
 Of a married intestate who dies leaving no children, 
 
 BUT A SPOUSE, AND DESCENDANTS IN ANY OTHER DEGREE 
 OF CONSANGUINITY TO HIM, HOWEVER REMOTE FROM HIM, 
 AND ALL IN" THE SAME DEGREE OF CONSANGUINITY TO HIM. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her dower of one-third, as in D 1. 
 (2.) To the said descendants, per capita, the fee^ as in 
 B3. 
 
 If Intestate he a Female. 
 
 (1 .) To the widower, his estate by the courtesy, as in B 3. 
 (2.) To the said descendants, per capita, the fee, as in 
 B3. 
 
 D 4. 
 
 Of a married intestate who dies leaving A spouse, a 
 
WHEN ACQUIEED FROM PARENT. 171 
 
 FATHER OR MOTHER AS AFORESAID, AND DESCENDANTS 
 IN DIFFERENT DEGREES OF CONSANGUINITY TO HIM, OR 
 HER THE MORE REMOTE BEING THE ISSUE OF A DECEASED 
 CHILD, GRANDCHILD, OR OTHER DESCENDANT. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her dower of one-third, as in B 4. 
 (2.) To the said descendants, the fee, as in B 4. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy,as in B 4. 
 (2.) To the said descendants, the fee, as in B 4. 
 
 D 5. 
 
 Of a married intestate, who dies leaving no issue, but 
 
 A SPOUSE, A FATHER OR MOTHER, AS IN D 1, AND COL- 
 LATERAL HEIRS, AS IN B 6. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 (2.) To the father or mother, a life estate, as in B 5. 
 (3.) To the said collateral heirs, the fee, as in B 5. 
 
 If Intestate be a Female. 
 
 (1 .) To the widower, his estate by the courtesy, as in B 5. 
 
 (2.) To the father or mother, the possibility of a life 
 estate, as in B 5. 
 
 (3;) To the said collateral heirs, the fee, as in B 5 ; 
 Irwin V. Covode, 12 Harris, 162.* 
 
 D 6. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs as aforesaid, but a spouse, a father or 
 
 * See infra, page 186. 
 
172 LAWS OF DESCENT OF REALTY. 
 
 MOTHER, AS IN D 1, AND HALF BROTHERS AND SISTERS 
 OF THE BLOOD OP THE PARENT FROM WHOM THE ES- 
 TATE DESCENDED, AS IN C 2. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 6. 
 
 (2.) To the said father or mother, a life estate, as in 
 B6. 
 
 (3.) To the said half brothers and sisters, the fee, and 
 to their issue in like manner as is hereinbefore set forth 
 in B 5, in cases of brothers and sisters of the whole blood. 
 
 If Intestate he a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 B6. 
 
 (2.) To the said father or mother, the possibility of a 
 life estate, as in B 5. 
 
 (3.) To the said half brothers and sisters, the fee, and 
 to their issue, as beforesaid : Montgomery v. Petriken, 5 
 Casey, 118; Maffit v. Clark, 6 Watts & Sergeant, 258; 
 Hart's Appeal, 8 Barr, 32. 
 
 D 7. 
 
 Of a married intestate who dies leaving no issue, no col- 
 lateral heirs as in D 5, no half hrothers and sisters as in 
 D 6, and no first cousins, children of deceased uncles 
 and aunts of the hlood of the purchaser, but a spouse, 
 
 A FATHER OR MOTHER, AS IN D 1, AND UNCLES AND AUNTS 
 OP THE BLOOD OP THE PURCHASER, AND UNCLES AND 
 AUNTS OP THE BLOOD OP THE PARENT FROM WHOM THE 
 ESTATE DID NOT DESCEND. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 (2.) To the said father or mother, a life estate, as in B 5. 
 
WHEN ACQUIRED FEOM PARENT. 173 
 
 (3.) To the said uncles and aunts of the blood of the 
 purchaser, per capita, the fee, as in C 3. 
 
 (4.) To the said uncles and aunts not of the blood, 
 nothing. 
 
 If Intestate be a Female. 
 
 (1 .) To the widower, his estate by the courtesy, as in B 1 . 
 
 (2.) To the said father or mother, the possibility of a 
 life estate, as in B 5. 
 
 (3.) To the said uncles and aunts of the blood of the 
 purchaser, per capita, the fee, as in C 3. 
 
 (4.) To the said uncles and aunts not of the blood, 
 nothing: McWilliams v. Eoss, 10 Wright, 372; Gil- 
 more V. Eoss, 2 Pittsburgh, 50 ; Walker v. Dunshee, 2 
 Wright, 430; MaflSt v. Clark, 6 Watts & Sergeant, 258. 
 
 D 8. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs as in D 5, no half brothers and sisters nor 
 issue thereof as in D 6, and no first uncles and aunts of 
 the blood of the purchaser, but a spouse, a father ok 
 
 MOTHER, AS IN D 1, AND FIRST COUSINS, CHILDREN OF 
 DECEASED UNCLES AND AUNTS OF THE BLOOD OF THE 
 PURCHASER, AND FIRST COUSINS OF THE BLOOD OF THE 
 PARENT FROM WHOM THE ESTATE DID NOT DESCEND. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 
 (2.) To the said father or mother, a life estate, as in B 5. 
 
 (3.) To the first cousins of the blood of the purchaser, 
 by representation, each class thereof a share of the fee, 
 as in C 4.* 
 
 (4.) To the first cousins not of the blood of the pur- 
 chaser, nothing. 
 
 * See page 186, infra. 
 
174 LAWS OF DESCENT OF EEALTY. 
 
 If Intestate he a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the said father or mother, the possibility of a 
 life estate. 
 
 (3.) To the said first cousins of the blood of the pur- 
 chaser, by representation, the fee, as in C 4.* 
 
 (4.) To the said first cousins not of the blood of the 
 purchaser, nothing: Kiegel's Apj)eal, 12 Weekly Notes, 
 179. 
 
 D 9. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs as in D 5, no half brothers and sisters, 
 nor issue thereof, as in J) 6, but a spouse, a father ok 
 
 MOTHEK, AS IN D 1, UNCLES AND AUNTS OF THE BLOOD 
 OF THE PUKCHASEE, AND FIEST COUSINS OF THE BLOOD 
 OF THE PUECHASEE. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 
 (2.) To the said father or mother, a life estate, as in B 5. 
 
 (3.) To the said uncles and aunts, as set forth in C 5 
 the share of the fee. 
 
 (4.) To the said first cousins, as set forth in C 5, the 
 share of the fee. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the said father or mother, the possibility of a 
 life estate, as in B 6. 
 
 (3.) To the said uncles and aunts, as set forth in C 
 5, the share of the fee. 
 
 (4.) To the said first cousins, as set forth in C 5, the 
 share of the fee. 
 
 * See page 186, infra. 
 
WHEN ACQUIRED FROM PARENT. 175 
 
 D 10. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs as in D 5, no half brothers and sisters, 
 nor issue thereof, as in D 6, no uncles and aunts nor first 
 cousins of the Hood of the purchaser, but a spouse, a 
 
 FATHER OR MOTHER, AS IN D 1, AND NEXT OE KIN, OTHER 
 THAN AS ABOVE, IN THE DESCENDING LINE OF THE BLOOD 
 OF THE PURCHASER. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 
 (2.) To the said father or mother, a life estate, as in 
 B5. 
 
 (3.) To the said next of kin in the descending line, 
 per capita, the fee : May v. Espenshade, 1 Pearson, 139. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the said father and mother, the possibility of 
 a life estate, as in B 5. 
 
 (3.) To the said next of kin in the descending line, 
 per capita, the fee, as beforesaid. 
 
 D 11. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs, no half brothers and sisters nor their 
 issue, nor kin of the blood of the purchaser i7i the descend- 
 ing line, BUT A SPOUSE, A FATHER OR MOTHER, AS IN D 1, 
 AND NEXT OF KIN OF THE BLOOD OF THE PURCHASER IN 
 THE ASCENDING LINE FROM THE PURCHASER. 
 
 If Intestate be a Male. 
 (1.) To the widow, an estate for life of one-half, as in 
 B5. 
 
176 LAWS OF DESCENT OF EEALTY. 
 
 (2.) To the said father or mother, a life estate, as in B 5. 
 
 (3.) To the next of kin of the blood of the purchaser 
 in the ascending line, the fee: May v. Espenshade, 1 
 Pearson, 139; Nichols. Hall, Pittsburgh L. J., 1881, 239. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the said father or mother, the possibility of a 
 life estate, as in B 5. 
 
 (3.) To the next of kin of the blood of the purchaser 
 in the ascending line, the fee : May v. Espenshade, 1 
 Pearson, 139 ; Nichol v. Hall, su-pra. 
 
 D 12. 
 
 Of a married intestate of either sex who dies leaving 
 no issue, no collateral heirs, half brothers and sisters, nor 
 kindred of any kind of the blood of the purchaser, but a 
 
 SPOUSE, AND A FATHEE, OR MOTHER, FROM WHOM THE 
 ESTATE DID NOT DESCEND. 
 
 (1.) To the spouse, under the 10th section of the Act 
 of 1833, supra, 89 : Broad Top Coal Co. v. Riddlesburg 
 Coal Co., 15 P. F. Smith, 435. 
 
 D 13. 
 
 Of an intestate of either sex who dies leaving no issue, 
 no heirs of any kind of the blood of the purchaser, no 
 
 spouse, BUT A FATHER OR MOTHER FROM WHOM THE ES- 
 tate did not descend, as nearest of kin by the civil 
 Laws, and half brothers and sisters, children of 
 such father or mother. 
 
 (1.) To the said father or mother, as next of kin, as 
 inC8. 
 
 D 14. 
 
 Of an intestate of either sex who dies leaving no issue, 
 no heirs of any kind of the blood of the purchaser, no 
 
WHEN ACQUIRED PROM GRANDPARENT. 177 
 
 spouse, and no father or mother as aforesaid, but next of 
 
 KIN BY THE CiVIL Law IN A MOEE REMOTE DEGE.EE. 
 
 (1.) To such next of kin, as in C 9. 
 
 D15. 
 
 Of an intestate of either sex who dies leaving no issue 
 nor heirs of any kind as aforesaid. 
 
 (1.) To the Commonwealth of Pennsylvania by es- 
 cheat, as in C 10. 
 
 THIED. 
 
 When Acquiked by the Intestate by descent 
 FROM A Grandparent of the Intestate who was 
 THE Purchaser. 
 
 E 1. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue, but a father or mother not of 
 the blood, and through whom the estate did not 
 descend, and collateral heirs, as in a 1. 
 
 (1.) To such father or mother, a life estate, as in C 1. 
 
 (2.) To such collateral heirs, as in B 5. 
 
 E 2. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband nor issue, but a father or mother not of the 
 
 BLOOD, AND THROUGH WHOM THE ESTATE DID NOT DESCEND, 
 AND HALF BROTHERS AND SISTERS, AND DESCENDANTS 
 THEREOF, OF THE BLOOD OF THE PARENT THROUGH WHOM 
 THE ESTATE DID DESCEND, AND HALF BROTHERS AND SIS- 
 TEES OF THE BLOOD OF THE PARENT THROUGH WHOM THE 
 ESTATE DID NOT DESCEND, BY ANOTHER SPOUSE. 
 
 12 
 
178 LAWS OF DESCENT. 
 
 (1.) To said father and mother, for life, as in C 1. 
 
 (2.) To the said half brothers and sisters of the blood 
 of the parent from whom the estate descended, and the 
 issue thereof, the fee, as in C 1 . 
 
 (3.) To the said half brothers and sisters not of the 
 blood, nothing. 
 
 E 3. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor issue, nor collateral heirs, as m E 1, nor 
 half brother or sister of the blood, as in E 2, nor first 
 cousins, children of deceased uncles and aUnts of the 
 blood of the purchaser, but a father ok mother, as in 
 
 E 1, AND GRANDPARENTS, OR A GRANDPARENT, FROM 
 WHOM THE ESTATE DID NOT DESCEND, AND UNCLES AND 
 AUNTS OF THE BLOOD OF THE GRANDPARENT FROM WHOM 
 THE ESTATE DID DESCEND, AND UNCLES AND AUNTS NOT OF 
 THE BLOOD OF SUCH PURCHASER. 
 
 (1.) To the said father or mother, a life estate, as in C 1. 
 
 (2.) To the said grandparents or grandparent, nothing. 
 
 (3.) To the said uncles and aunts of the blood of the 
 purchaser, per capita, the fee. 
 
 (4.) To the said uncles and aunts not of the blood, 
 nothing. 
 
 E 4. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor issue, nor collateral heirs as in, E 1, nor 
 half brothers and sisters, nor their issue, as in E 2, nor 
 uncles and aunts of the blood of the purchaser, but a 
 
 FATHER OR MOTHER, AS IN E 1, AND FIRST COUSINS, CHIL- 
 DREN OF DECEASED UNCLES AND AUNTS OF THE BLOOD OF 
 THE PURCHASER. 
 
 (1.) To said father or mother, a life estate, as in B 1. 
 
 (2.) To said first cousins, the fee by representation, each 
 class thereof taking the share the parent thereof would 
 have taken if living at the death of the intestate. 
 
WHEN ACQUIRED FROM GEASTDPAEENT. 179 
 
 E 5. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor issue, nor collateral heirs, as in E 1, nor half 
 brothers nor their issue, as in E 2, but a father or 
 
 MOTHER AS IN E 1, AND UNCLES AND AUNTS OF THE 
 BLOOD OF THE PURCHASER, AND FIRST COUSINS, CHILDREN 
 OF DECEASED UNCLES AND AUNTS OF THE BLOOD OF THE 
 PURCHASER. 
 
 (1.) To said father or mother, a life estate, as in C 1. 
 
 (2.) To each of said uncles or aunts, the share of the 
 fee such would have taken had all the uncles and aunts 
 of the blood of the purchaser been alive at the death of 
 the intestate. See C 5. 
 
 (3.) To each class of first cousins, by representation, 
 the share of the fee the parent thereof would have taken 
 if living at the death of the intestate. See C 5. 
 
 E 6. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor issue, nor collateral heirs, as in E 1, nor half 
 brothers and sisters, nor their issue, as in E 2, nor uncles 
 and aunts, nor first cousins of the blood, asin'E, A and 5, 
 
 BUT A FATHER OR MOTHER AS IN E 1, AND DESCENDANTS 
 OF THE SAID UNCLES AND AUNTS OTHER THAN AS ABOVE 
 TO A MORE REMOTE DEGREE THAN AS BEFORESAID. 
 
 (1.) To the said father or mother, a life estate, as in C 1. 
 (2.) To the said descendants, per capita, the fee, as in 
 6. 
 
 E 7. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor issue, nor descendant in any degree of the 
 grandparent, the purchaser, from whom the estate de- 
 scended, BUT A FATHER OR MOTHER, AND COLLATERAL 
 HEIRS, OR KIN OF SUCH GRANDPARENT, THE PURCHASER. 
 
 (1.) To the said father or mother, a life estate, as in C 1 . 
 
180 LAWS OF DESCENT. 
 
 (2.) To the said collateral heirs, or kin of the grandpa- 
 rent, the purchaser, in the manner set forth in C 1 to 7. 
 
 E 8. 
 
 Of one of either sex who dies leaving neither wife nor 
 husband, nor issue, nor kindred in any degree of the blood 
 of the grandparent from whom the estate descended, but 
 
 A FATHER OR A MOTHER, AS IN El, WHO IS NOT OF THE 
 BLOOD OF THE PURCHASER. 
 
 (1.) To such father or mother, the fee as next of kin 
 by the Civil Law, as in D 14. 
 And so on, as in C 9 and 10. 
 
 F 1. 
 
 Of a married intestate who dies leaving no issue of a 
 deceased child, but a spouse, a father or mother, as 
 
 IN D 1, AND CHILDREN, AS IN D 1. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her dower of one-third, as in D 1. 
 (2.) To the children, per capita, as in D 1. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Dl. 
 
 (2.) To the children, per carpita, the fee, as in D 1. 
 
 F 2. 
 
 Of a married intestate who dies leaving no children, 
 nor descendants of a deceased grandchild, but a spouse, 
 
 A FATHER OR MOTHER, AS IN E 1, AND GRANDCHILDREN. 
 
 If Intestate be a Hale. 
 
 (1.) To the widow, her dower of one-third, as in B 1. 
 (2.) To the grandchildren, j9er capita, the fee, as in B 2. 
 
WHEN ACQUIRED PfiOM GRANDPAEBNT. 181 
 
 F 3. 
 
 Of a married intestate who dies leaving no children, 
 
 BUT A SPOUSE, A FATHER OR MOTHER, AS IN E 1, AND 
 DESCENDANTS OTHER THAN AS ABOVE, ALL IN THE SAME 
 DEGREE OF CONSANGUINITY. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her dower of one-third, as in B 1. 
 (2.) To the said descendants, per capita, the fee, as 
 inB 3. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 Bl. 
 
 (2.) To the said descendants, per capita, the fee. 
 
 F 4. 
 
 Of a married intestate who dies leaving A spouse, a 
 
 FATHER OR MOTHER, AS IN E 1, AND DESCENDANTS IN 
 DIFFERENT DEGREES OF CONSANGUINITY, THE MORE RE- 
 MOTE OF THEM BEING THE ISSUE OF A DECEASED CHILD, 
 GRANDCHILD, OR OTHER DESCENDANT. 
 
 If Intestate he a Hale. 
 
 (1.) To the widow, her dower of one-third, as in B 1. 
 (2.) To the said descendants, the fee, as in B 4. 
 
 If Intestate be a Female. 
 
 (1 .) To the widower, his estate by the courtesy, as in B 1 . 
 (2.) To the said descendants, the fee, as in B 4. 
 
 F 5. 
 Of a married intestate who dies leaving no issue, but 
 
 A SPOUSE, A FATHER OR MOTHER AS IN El, AND COL- 
 LATERAL HEIRS AS IN B 5. 
 
182 LAWS OF DESCENT. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 (2.) To the surviving father or mother, a life estate, 
 as in B 5. 
 
 (3.) To the collateral heirs, the fee, as in B 5. 
 
 If Intestate he a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 B5. 
 
 (2.) To the surviving father or mother, the possibility 
 of a life estate, as in B 5. 
 
 (3.) To the collateral heirs, the fee, as in B 5. 
 
 F 6. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs as in B 5, and no first cousins, children 
 of deceased uncles and aunts of the hlood of the pur- 
 chaser, BUT A SPOUSE, A FATHER OR MOTHER AS IX E 1, 
 AND HALF BROTHERS AND SISTERS, CHILDREN OF THE 
 SURVIVING FATHER OR MOTHER BY ANOTHER MARRIAGE 
 "WHO ARE NOT OF THE BLOOD OF THE PURCHASER, AjS'D 
 UNCLES AND AUNTS, CHILDREN OF THE PURCHASER, AND 
 UNCLES AND AUNTS, BROTHERS AND SISTERS OF THE SUR- 
 VIVING FATHER OR MOTHER. 
 
 If Intestate he a Male. 
 
 (1.) To the widow, her estate for life of one-half, as in 
 B5. 
 
 (2.) To the surviving father or mother, a life estate, 
 as in B 5. 
 
 (3.) To the half brothers and sisters aforesaid, nothing. 
 
 (4.) To the said uncles and aunts, children of the 
 purchaser, per capita, the fee, as in D 7. 
 
 (5.) To the uncles and aunts, not children of the pur- 
 chaser, nothing. 
 
WHEN ACQUIRED FROM GRANDPARENT. 183 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 B5. 
 
 (2.) To the surviving father or mother, the possibility 
 of a life estate, as in B 5. 
 
 (3.) To the half brothers and sisters aforesaid, nothing. 
 
 (4.) To the said uncles and aunts, children of the 
 purchaser, per capita, the fee, as in D 7. 
 
 (5.) To the said uncles and aunts, not children of the 
 purchaser, nothing. 
 
 F 7. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs, but a spouse, a father or mother not 
 
 OF THE BLOOD, AND HALF BROTHERS, CHILDREN OF THE 
 SURVIVING FATHER OR MOTHER BY ANOTHER MARRIAGE 
 WITH ONE NOT OF THE BLOOD OF THE PURCHASER, AND 
 UNCLES AND AUNTS, CHILDREN OF THE PURCHASER, AND 
 UNCLES AND AUNTS, BROTHERS AND SISTERS OF THE SUR- 
 VIVING FATHER OR MOTHER, AND FIRST COUSINS, CHILDREN 
 OF DECEASED UNCLES AND AUNTS OF THE BLOOD OF THE 
 PURCHASER. 
 
 If Intestate he a Hale. 
 
 (1.) To the widow, her estate for life of one-half, as in 
 B5. 
 
 (2.) To the surviving father or mother, a life estate, as 
 inB5. 
 
 (3.) To the said half brothers and sisters, nothing. 
 
 (4.) To each of the said uncles and aunts, children 
 of the purchaser, such share of the fee as they would 
 have taken had all the uncles and aunts, children of the 
 purchaser, and deceased leaving issue, been alive at the 
 death of the intestate. See C 5. 
 
 (5.) To the said uncles and aunts, not children of the 
 purchaser, nothing. 
 
184 LAWS OP DESCENT. 
 
 (6.) To each class of the said first cousins (amongst the 
 members of such class), such share as the parent thereof 
 would have taken if living. See C 5. 
 
 If Intestate be a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 B5. 
 
 (2.) To the surviving father or mother, the possibility 
 of a life estate, as in B 5. 
 
 (3.) To the said half brothers and sisters, nothing. 
 
 (4.) To the said uncles and aunts, children of the pur- 
 chaser, as above stated. 
 
 (5.) To the said uncles and aunts, not children of the 
 purchaser, nothing. 
 
 (6.) To each class of the said first cousins, as above 
 stated. 
 
 F 8. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs, no uncles, nor aunts, nor first cousins of 
 the blood of the purchaser, but a spouse, a father oe 
 
 MOTHER, AS IN E 1, AND NEXT OF KIN OF THE BLOOD OF 
 THE PURCHASER IN A MORE REMOTE DEGREE THAN AS 
 BEFORE SAID. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, her life estate of one-half, as in B 5. 
 
 (2.) To the surviving father or mother, a life estate, 
 as in B 5. 
 
 (3.) To the said next of kin, the fee,^er capita : Bren- 
 neman's Appeal, 4 Wright, 415. 
 
 If Intestate be a Female. 
 (1.) To the husband, his estate by the courtesy. 
 (2.) To the surviving father or mother, the possibility 
 of a life estate. 
 
WHEN ACQUIRED FROM GRANDPARENT. 185 
 
 (3.) To the said next of kin, per capita, the fee. See 
 section 7 of Act of 1833, supra, 89, 
 
 F 9. 
 
 Of a married intestate who dies leaving no issue, no 
 collateral heirs, nor kin of the blood of the purchaser, but 
 
 A SPOUSE, A FATHER OK MOTHER AS IN E 1, AND HALF 
 BEOTHERS AND SISTEES, CHILDREN OF THE SURVIVING 
 FATHER OR MOTHER BY A MARRIAGE WITH ONE NOT OF 
 THE BLOOD OF THE PURCHASER. 
 
 If Intestate be a Hale. 
 
 (1.) To the surviving father or mother, a life estate 
 of one-half. 
 
 (2.) To the widow, the fee, under the 10th section of 
 the Act of 1833. 
 
 (3.) To the said half brothers and their issue, nothing, 
 as they are barred by the 9th section of the Act of 1833. 
 
 If Intestate be a Female. 
 
 (1 .) To the surviving father or mother, a life estate of 
 one-half. 
 
 (2.) To the widower, the fee, under the 10th section 
 of the Act of 1833. 
 
 (3.) To the said half brothers and sisters, nothing, as 
 above said. 
 
 F 10. 
 
 Of a married intestate who dies leaving no issue, nor 
 collateral heirs, but a spouse, and a father ok mother, 
 OF the blood of the purchaser. 
 
 ^Intestate be a Male. 
 (1.) To the widow, a life estate of one-half. 
 
186 LAWS OP DESCENT. 
 
 (2.) To the said father or mother, the fee, under the 
 5th section of the Act of 1833. 
 
 If Intestate he a Female. 
 
 (1.) To the widower, his estate by the courtesy, as in 
 B5. 
 
 (2.) To the said father or mother, the fee, as beforesaid. 
 
 F 11. 
 
 Of a married intestate who dies leaving no issue, nor 
 kin of the blood of the purchaser, nor half brothers and 
 sisters not of the blood of the purchaser, nor father nor 
 mother, as aforesaid, but A spouse and next of kin by 
 THE Civil Law in a moke remote degree. 
 
 If Intestate be a Male. 
 
 (1.) To the widow, the fee, under the 10th section of 
 the Act of 1833. 
 
 (2.) To such next of kin, nothing. 
 
 If Intestate he a Female. 
 
 (1.) To the widower, the fee, under the 10th section of 
 the Act of 1833. 
 
 (2.) To the said next of kin, nothing. 
 
 Remarks. 
 
 Referred to on pages 142, 143, 149, 154, 156, 160, 164, 167, 171, 172, 173, 174. 
 
 There is now before the legislature of Pennsylvania the 
 following bill, which will modify the provisions of the 2d 
 section of the Act of 27th April, 1855, to the extent that 
 when one dies intestate, leaving as his heirs grandnephews 
 or first cousins (who would, under existing laws, each class 
 
EEMAEKS. 187 
 
 thereof, inherit amongst them the share the j^arent of 
 such class would have taken had such parent been alive 
 at the time of the death of the intestate) , the same shall 
 take the inheritance amongst them per capita, as is at 
 present the law in regard to grandchildren or nephews. 
 There is but little doubt as regards the passage of the 
 bill which is considered by many as desirable. But the 
 writer would prefer a bill which would have the reverse 
 effect, which would have made lineal and collateral de- 
 scendants in the same degree of consanguinity take yer 
 stirpes the share, each class thereof, the parents of such 
 class would have been entitled to, if such had been alive 
 at the death of the intestate. 
 
 Bill Proffeeed in 1885. 
 
 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 intes- 
 tate. 
 
 Section 1. Be it enacted by the Senate and Souse of Representaiives of the 
 Commonwealth of Pennsylvania in Oeneral Assembly met and it is hereby enacted by 
 the authority of the same, That, whenever by the provisions of the intestate laws 
 of this Commonwealth it is directed that real and personal estates shall descend 
 to or 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 be more than one they shall take in equal shares, and if real estate) 
 shall hold the same as tenants in common. 
 
 Section 2. All acts or parts of acts inconsistent herewith be and the same 
 are hereby repealed. 
 
INDEX. 
 
 ACCOUNTS. 
 
 Generally treated of, 69-75 
 
 Final, of guardians, must include all the items in partial, . . 73 
 Final, should be filed by guardian on the coming of age of the ward, 
 
 72,73 
 Final, may be reviewed within five years after confirmation, . 78, 74 
 
 Final, should be filed by guardian on his resignation, ... 72 
 
 Final, how audited under Act of 14 April, 1835, .... 70 
 Final, to be examined by Orphans' Court under Act of 29 March, 
 
 1832, 70 
 
 Final, to be recorded under Act 25 April, 1850, .... 71 
 
 Final, balance due of, to be filed by prothonotary, .... 71 
 Final, settlement of, with ward, cannot be impeached after death of 
 
 ward, I .... 72 
 
 Final, on settlement of, court to appoint some one to protect ward, . 72 
 Final, on death of guardian, proper person to file is personal repre- 
 sentative of guardian 72 
 
 Partial, of guardian, to be made at least once each three years, . 69 
 
 Partial, may be impeached by ward on coming of age, ... 71 
 
 Partial, one for each ward should be kept, 72 
 
 Trustees, etc., must file, 116 
 
 ACKNOWLEDGMENT. 
 
 Of instruments executed by guardians residing out of the county 
 
 wherein lies the land, how made under Act of 1854, ... 54 
 
 ACT. 
 
 Of 18 April, 1853, object of, expressed in preamble, .... 138 
 
 ACTIONS. 
 
 On the surety bond of guardian, ...... 81-83 
 
 ADJUSTMENT. 
 
 Of boundaries of ward's realty, 53 
 
 ADMINISTKATOKS. 
 
 Definition of the position of, 19 
 
 Not to be appointed guardians if interested in estate, ... 17 
 
 In distributing, must first exhaust the personal estate ... 76 
 
190 INDEX. 
 
 PAGE 
 
 ADMINISTRATORS (continued). 
 
 When personal estate ineufficient to pay debts, etc., may apply to 
 court for authority to sell the real, ...... 76, 77 
 
 May be ordered to make sale of realty to effect partition, . . . 112 
 
 Must file account after sale in partition, 116 
 
 Cum testamento annexo — have same power as executor had, . . 105 
 
 ADOPTED. 
 
 Children to have equal rights of inheritance with other, ... 92 
 
 ADVANCES. 
 
 Made to child by decedent intestate to be deducted from share, . 90 
 
 ALIENATION. 
 
 Word, comprised in that of purchase, 85 
 
 ALLODIAL. 
 
 Tenures in Pennsylvania held to be, 21 
 
 ALLOWANCE. 
 
 Out of ward's estate under Act of 1832, 50, 51 
 
 Out of ward's estate under Act of 1853, 54 
 
 AMOUNT. 
 
 Of balance due by guardian to be filed 75 
 
 Of surety bond, practice regarding, in Philadelphia, ... 67 
 
 APPEAL. 
 
 Does not lie on order to sell realty for payment of debts, . . . 138 
 May be had to Supreme Court under Act of 1853, .... 132 
 
 APPRAISERS. 
 
 Appointed to make partition, Ill 
 
 B. 
 BALANCE. 
 
 Due by discharged or resigned guardian to be paid to successor, . 72 
 
 BONDS OF SECURITY. 
 
 Generally treated of, 55-68 
 
 Form of, 58 
 
 Are in trust for all parties in interest, 67 
 
 C. 
 CAVEAT EMPTOR. 
 
 Applies to sales of decedent's estate for payment of debts, . . 138 
 
 CESTUI QUE TRUST. 
 
 Estate of, escheats — when, 92 
 
 CHARITABLE SOCIETIES. 
 
 Not prohibited from accumulating by Act of 1853, .... 133 
 
INDEX. 191 
 
 PAGE 
 
 CHILDREN. 
 
 Of a male intestate, inherit the realty subject to life estate of sur- 
 viving mother, 87 
 
 Of a male intestate inherit personalty share and share alike, less 
 
 mother's share, .......... 87 
 
 When advances made to, by parent, to be deducted from share of, . 90 
 Of married female intestate inherit personalty each share and share 
 
 alike with widower 91 
 
 Of married female intestate inherit realty subject to widower's 
 
 courtesy, 91 
 
 Of deceased uncle or aunt of intestate inherit per stirpes under Act of 
 
 1855, 94 
 
 Of decedent uncle and aunt of intestate prior to Act of 1855 did not 
 
 inherit if other uncles and aunts of the blood were alive, . . 94 
 . Adopted, have equal rights of inheritance with other, under Act of 
 
 1855, 92 
 
 Illegitimate, were not entitled to privileges of Intestate Act of 1832, 90 
 
 (But see Acts of 27 April, 1855, 14 May, 1857, 5 June, 1883.) 
 Illegitimate, inherit from mother under Act of 1855, . ... 91 
 Illegitimate, born of same mother, inherit from each other in some 
 
 cases under Act of 1883, 93 
 
 Illegitimate, legitimized by marriage of parents, .... 92 
 
 CODICIL. 
 
 Is a written alteration or addition to a will, . . . . . 106 
 
 COLLATERAL. 
 
 Heirs of an intestate inherit the realty of intestate, when no issue 
 or father or mother, as follows, subject to life estate of surviving 
 wife or husband : 
 
 1. Brothers and sisters of the whole blood, and the children of each 
 deceased brother or sister, share to each brother or sister, and 
 share to the issue of each deceased brother or sister, . . 88, 89 
 
 2. If no brother or sister survive, the children of such of the whole 
 blood inherit per capita, 88, 89 
 
 3. Grandchildren of brothers and sisters inherit per stirpes, . . 90 
 
 COMMISSION. 
 
 Of guardians 78 
 
 COMMITTEES. 
 
 Of lunatics, etc., may make and take conveyances under Act of 1853, 131 
 
 COMMON PLEAS. 
 
 Court of, appeals may be had from, 132 
 
 Court of, may appoint guardian ad litem under Act of 1836, . . 29 
 
 COMMONWEALTH. 
 
 Rights of, to forfeit, barred by sales under Act of 1853, . . . 130 
 
 CONSOLIDATION. 
 
 Of interests in mining lands, 136 
 
192 INDEX. 
 
 PAGE 
 
 CONTINGENT EEMAINDER8. 
 
 Barred by sales under Act of 1853, . . . . i . . 130 
 
 CONTEACTS. 
 
 Of infants generally voidable, 36 
 
 CORPOEATIONS. 
 
 When may make and take conveyances under Act of 1853, . . 131 
 
 COSTS. 
 
 Of sale by order of Orphans' Court first paid out of proceeds of sale, 125 
 On sales in partition to be paid proportionately by each party, . 116 
 
 COUNTEE SECUEITY. 
 
 Directed to be given for the relief of the surety, ... 56, 84 
 
 COUETESY, ESTATE BY. 
 
 Does not exist in certain strictly trust estates, 93 
 
 Lost by neglect and desertion of family under Act of 1855, . . 92 
 
 COTJETS. 
 
 Proper, may appoint guardians under Act of 1855, .... 27 
 Orphans'. See Orphans' Codet. 
 Supreme. See Supreme Cotjet. 
 
 COUSINS OF INTESTATE. 
 
 Inherited by Act of 1833 per capita; under Act of 1855, inherit per 
 stirpes, 89, 94 
 
 D. 
 DEEDS. 
 
 Executed by guardian under Act of 1853, to be recorded, . . . 65 
 
 DEFECTS. 
 
 In proceedings, not to aflfect title of purchasers, when, . . . 136 
 
 DEMUEEEE. 
 
 Will be sustained in certain proceedings, 68 
 
 DESCENDANTS. 
 
 Of an intestate, how they inherit under the intestate acts, ... 88 
 Of an intestate begotten after intestate's death inherit, ... 90 
 
 DESCENT. 
 
 Generally treated of, 85-94 
 
 Is when property vests in parties by action of law, . . . .So 
 
 In 1681 realty passed by, to eldest son, 86 
 
 See infra, Eealty, Peesonalty. 
 
 DEVISES. 
 
 In favor of lineal descendants do not lapse by death of devisees, . 101 
 How affected by Act of 1879, 104 
 
 DISCHAEGED. 
 
 A guardian may be, ........ . 40, 41 
 
 For mismanagement or misconduct, 41, 42,. 44 
 
INDEX. 193 
 
 PAGE 
 
 DISCHARGED {continued). 
 
 For probability of becoming insolvent, . . . . 42, 45 
 
 For neglect to file an inventory, 42, 45 
 
 For failure to render just accounts, 42, 45 
 
 For removal from the State 43, 45 
 
 For refusal to give security, 45 
 
 For becoming a lunatic, 42, 45 
 
 For being an habitual drunkard, 42, 45 
 
 For using ward's money for private purposes, . . . . 45 ' 
 For refusing necessaries to ward, ...... 45 
 
 For ignorance of duty, 45 
 
 One discharged not liable for default of remaining, ... 41 
 
 DISTEIBUTEE. 
 
 Share of one who fails to give security to be invested, . . . 112 
 
 DISTBIBUTION. 
 
 Should be fairly made by guardian between wards, .... 50 
 
 Term strictly applies to the division of personalty, .... 76 
 
 Of stocks and bonds without conversion may be made in certain cases, 105 
 
 May be made by guardian at his own risk, etc., .... 76 
 
 DOMICIL. 
 
 Of an intestate, when out of Pennsylvania, the intestate acts do not 
 
 apply to his personal property, 90 
 
 Of a testator. The act relative to wills does not apply to personal 
 
 property of a non-resident, 101 
 
 DOWEE. 
 
 Barred by widow taking under the intestate act, .... 90 
 
 Barred by acceptance of husband's devise, 103 
 
 Husband cannot deprive wife of, 103 
 
 "El 
 
 EMBLEMENTS. 
 
 Of land held by tenant for life, so far as accrued, may be disposed of 
 by will, 100 
 
 ESCHEAT. 
 
 The word comprised in that of purchase, 85 
 
 Estate of an intestate will not, if there be next of kin, or husband, or 
 wife existing, ........... 94 
 
 In default of kin, or surviving husband or wife, the estate of an intes- 
 tate escheats, 90, 92 
 
 ESTATES. 
 
 "When acquired partly by descent, partly by purchase, are subject to 
 concurrent jurisdiction of Court of Common Pleas and Orphans' 
 Court, 138 
 
 ESTATES TAIL. 
 
 Are not within the intestate Acts, .93 
 
 Are barred by sale under Act of 1853 130 
 
 13 
 
194 INDEX. 
 
 PAGE 
 
 EVIDENCE. 
 
 Must be furnished in a suit by guardian of his right to sue, . . 68 
 
 EXECUTORS. 
 
 Definition of the position of, 19 
 
 If interested in decedent's estate, cannot be appointed guardians, . 17 
 
 In distribution, must first exhaust the personal estate, ... 76 
 If personalty be insufficient to pay debts and legacies, shall apply to 
 
 Orphans' Court for leave to sell realty, 76, 77 
 
 Should distribute as provided by Act of 1834, etc., .... 77 
 
 With authority to sell authorized as to entry, ..... 102 
 
 When authorized to sell, surviving are empowered to act, . 98, 102 
 
 Act of, void when in excess of authority, 105 
 
 May be ordered to sell to effect partition, . ..... 112 
 
 Failing to execute orders of court, substitutes for may be appointed, . 113 
 Before executing decrees of court for sale of lands, must give se- 
 curity, ............ 123 
 
 Taking at a sale goods in payment, responsible for value thereof, . 139 
 
 F. 
 FATHEB. 
 
 Of a minor, first entitled to guardianship by nature, . . 19, 20 
 May lose his rights under Acts of 1855 and 1879, . . .23, 27, 28 
 May relinquish his rights, ........ 24 
 
 Can appoint a guardian by will, 25, 38 
 
 May lose right to appoint a guardian by will, 39 
 
 Should be notified of intent of court to appoint a guardian, . . 32 
 Of an intestate, when no issue of intestate, and no surviving husband 
 or wife, inherits, with the mother, the personalty and a life 
 interest in the realty, ........ 88 
 
 When no issue or brothers or sisters of the intestate, or de- 
 scendants of brothers or sisters, subject to the rights of sur- 
 viving husband or wife, inherits, with the mother, the whole 
 estate of the intestate, 89 
 
 FEME SOLE TRADERS. 
 
 Married women acquire right to be, under Act of 1855, ... 91 
 
 FORFEITURE. 
 
 The word is comprised in that of purchase, 85 
 
 FORM. 
 
 Of guardian's bond, 58 
 
 G. 
 
 GRANDCHILDREN. 
 
 Of an intestate of the whole blood inherit, subject to the life interest 
 of surviving husband or wife, when surviving children of in- 
 testate, the share their parent would have taken if alive, . 87 
 
INDEX. 195 
 
 GEANDCHILDEEN {continued). 
 
 Where there be no children of intestate surviving, and no de- 
 scendant of a deceased grandchild, they inherit, per capita, the 
 estate of the intestate, subject to right of surviving husband or 
 wife, 87 
 
 GRANDPARENTS. 
 
 Of an intestate inherit personalty of the intestate in preference to 
 uncles and aunts, 94 
 
 GROUND-RENTS. 
 
 Orphans' Court may decree lease on, under Act of 1847, ... 52 
 
 GUARDIANS. 
 
 By nature, 18, 20 
 
 By nurture, 18, 20, 21 
 
 In socage, 18, 21, 22 
 
 In chivalry 18, 22, 23 
 
 Testamentary, appointed by father, . . . . . . 18, 25 
 
 Testamentary, appointed by mother, 18, 25 
 
 Appointed by Orphans' Court, 18, 26-28 
 
 Ad litem 19, 29, 30 
 
 As prochein ami, .......... 19, 31 
 
 Testamentary, authorized by statute 12 Charles II., chapter 24, as to 
 
 father, 18, 25, 38 
 
 Testamentary, authorized by Act 8 April, 1833, as to father, 18, 25, 38, 39 
 Testamentary, authorized by Act 10 June, 1881, as to mother, . 18, 25, 39 
 Testamentary, cannot be appointed by a testamentary guardian 
 
 (other than the mother), 39 
 
 Testamentary, cannot be appointed by a father who has, as provided 
 
 by Act of 1855, failed to provide for his family 39 
 
 Testamentary, may be discharged for failure to give security, . . 42 
 Testamentary, where mother, not liable for maintenance of ward, . 50 
 Testamentary, mother could not appoint prior to Act of 1881, . . 39 
 Testamentary, mothers now can appoint, when they leave estates, 25, 40 
 Testamentary, mothers now can appoint, when they are testamen- 
 tary guardians, 25, 40 
 
 Appointed by Orphans' Court under the 5th and 6th sections of Act 
 
 of 1832, 18, 26 
 
 Appointed by Orphans' Court under the 44th section of Act of 1850, 27 
 Appointed by Orphans' Court under tM Act of 25 August, 1864, 27, 28 
 Appointed by the proper court under the Act of 4 May, 1855, . . 27 
 Appointed by the proper court under the Act of 11 June, 1879, . 28 
 ^(i Zjtem, appointed by inherent power of court, .... 29 
 
 Ad litem, duty is to defend the minor in suits, 29 
 
 Ad litem, authorized by Act 27 March, 1713, 29 
 
 Ad litem, authorized by Act 29 March, 1832, 29 
 
 Ad litem, authorized by Act 13 June, 1836, 29 
 
 Ad litem, when appointed, minor or next friend should have notice, 30 
 
196 INDEX. 
 
 PAOB 
 
 GUAEDIANS {continued). 
 
 Ad litem, should not be appointed when a guardian exists within the 
 
 jurisdiction of the court, 30 
 
 Asprochein ami is rather an attorney than guardian, ... 19 
 
 As pj'OcAem ami, duty is to act for plaintiff minor, .... 31 
 
 As prochein ami, derived from statute 13 Edward I., chapter 15, . 31 
 
 As prochein ami, cannot appear to an action against a minor, . . 31 
 General powers of, to act as temporary parents, .... 17, 45, 47 
 
 General powers of, can lease realty of ward, ..... 46 
 
 General powers of, can bind ward by a purchase in partition, . . 47 
 
 General powers of, can bind ward by consent to consentable lines, . 47 
 
 General powers of, can sue for seduction of ward, .... 47 
 
 General powers of, can bind ward in acceptance of purparts in par- 
 tition, . . I . ........ 47 
 
 General powers of, can act for several wards, ..... 48 
 
 General powers of, can accept ward's legacies in certain securities, . 47 
 General powers of, can, under decree of court, let ward's realty in 
 
 ground-rent, . , 52 
 
 General powers of, can invest ward's money in certain securities, . 95 
 General powers of, can take possession of property acquired by ward 
 
 by descent 94 
 
 General powers of, can make and take conveyances for ward under Act 
 
 of 1853, 131 
 
 General powers of, can purchase land for ward, in cases under Act 
 
 of 1853, 131 
 
 General powers of, cannot, without authority, lease' mineral rights of 
 
 ward, 46 
 
 General powers of, cannot, without authority, convert personalty of 
 
 ward into realty, .......... 47 
 
 General powers of, cannot, without authority, erect buildings on ward's 
 
 realty, i 47 
 
 General powers of, cannot bind the ward out as a servant, . . 48 
 General powers of, cannot make permanent improvements of ward's 
 
 realty, i . . i 48 
 
 General powers of, cannot, without authority, invest ward's money in 
 
 stocks, 48 
 
 General powers of, cannot sue for ward merely in his own name, . 48 
 
 General powers of, cannot, in all cases, change tlie ward's domieil, . 47 
 
 General powers of, cannot bind his ward by an act vitiating his trust, 47 
 
 General duties of, to give security when required by court, , . 48 
 General duties of, to file an inventory within thirty days, . ' . .48 
 General duties of, to render partial accounts every three years, or when 
 
 required, . . ......... 48 
 
 General duties of, to file a final account on the close of his guardian- 
 ship, 49 
 
 General duties of, to collect all moneys due the ward, . , . 49 
 
 General duties of, to take charge of the ward's estate and person, . 49 
 General duties of, to invest, with approval of court, the ward's 
 
 money 49 
 
INDEX. 197 
 
 GUAEDIANS (continued). 
 
 General duties of, to provide maintenance and education for ward, . 50 
 General duties of, to see that the administrators properly apply 
 
 moneys of decedent's estate, 46 
 
 46 
 
 38 
 50 
 49 
 49 
 49 
 46 
 49 
 49 
 
 General duties of, to examine the accounts of his predecessor, . 
 General duties of, to pay over the ward's estate to any successor in 
 office, ........... 
 
 General duties of, to make a fair distribution amongst wards, . 
 
 Are generally liable for neglect to invest ward's money. 
 
 Are generally liable for neglecting to rent ward's realty, . 
 
 Are generally liable for investments not authorized, . 
 
 Are generally liable in interest for use of ward's money, . 
 
 Are personally liable for the rental of a house leased for the ward. 
 
 Are not responsible for ward's breach of contract. 
 
 Are not responsible for moneys not received, unless where there be 
 
 fraud, 73 
 
 Are not responsible for acts of agents necessarily employed when 
 
 proper care and heed in selecting them, .... 46 
 May be discharged, under Act of 29th March, 1832, . . 40, 41, 42 
 May be discharged, under Act of 22d April, 1846, .... 43 
 May be discharged, under Act of 1st May, 1861, .... 43 
 May be discharged for mismanagement of minor's estate, or miscon- 
 duct, 41 
 
 May be discharged for wasting or mismanaging, . . . 43, 45 
 
 May be discharged for becoming insolvent, or being likely to become, 42 
 May be discharged for failing to render true inventory, ... 42 
 May be discharged for failure to render just accoimts, ... 42 
 May be discharged for failure to provide good security, ... 42 
 
 May be discharged for becoming lunatic, 42, 45 
 
 May be discharged for being habitual drunkards, . . . 42, 46 
 
 May be discharged for removing from the State, . . . 43, 45 
 
 May be discharged for having no known residence, .... 43 
 
 May be discharged for using ward's money for private purposes. 
 
 May be discharged for refusing necessaries to the ward, 
 
 May be discharged for becoming incompetent from sickness, etc., 
 
 May be discharged for ignorance of duty, 
 
 Discharged, do not remain liable for default of remaining, . 
 
 Cannot be discharged for faults of co-guardian 
 
 May be appointed pending sale of minor's property, . 
 Are regarded with liberality by courts in Pennsylvania, 
 
 Foreign, may transfer stock, 
 
 Foreign, may be appointed by court, 
 
 Foreign, may sue for property of ward, 
 
 Foreign, may produce exemplification of appointment, 
 
 GUAKDIANSHIP. 
 
 By nature, characteristics of, 19, 20 
 
 Bynature, lasts while the natural obligations continue, ... 20 
 By nature, where contest for, between parents, court will decide, . 20 
 
 45 
 45 
 44 
 45 
 41 
 44 
 128 
 46 
 50 
 26 
 27 
 27 
 
198 
 
 INDEX. 
 
 GUAEDIANSHIP (continued). 
 
 By nature, pertains to mother where minor is illegitimate, 
 
 By nature, pertains to putative father if mother be dead, 
 
 By nurture, characteristics of, . . ■ . 
 
 By nurture, does not exist in Pennsylvania, 
 
 In socage, characteristics of, . . . 
 
 In socage, does not exist in Pennsylvania, . 
 
 In chivalry, characteristics of, . . i 
 
 In chivalry, never did exist in Pennsylvania, 
 
 By statute. See Guakdians. 
 
 . 20 
 
 . 20 
 
 20, 21 
 
 . 21 
 
 . 21 
 
 . 21 
 
 . 22 
 
 . 23 
 
 H. 
 
 HALF BLOOD. 
 
 Brothers and sisters of, inherit personal property, as provided in sec- 
 tion 4, Act of 1833, 89 
 
 Brothers and sisters of, inherit realty, in default of issue and kin of the 
 whole blood, etc., .......... 89 
 
 See, in Index, Personalty, Eealty. 
 
 HEIR. 
 
 At common law, was entitled, in 1681, to all the realty, ... 86 
 
 By statute later, was entitled to double portion, . . 1 . i 86 
 
 By statute now, the children inherit equally, ..... 86 
 Where, in partition, one, elects to take the real estate in one county, 
 
 he loses the preference to that in another, 112 
 
 HUSBAND. 
 
 Loses the estate by the courtesy in wife's realty by desertion, under 
 
 provisions of Act of 1855, i . 92 
 
 Right to inherit. See Personalty, Realty. 
 
 ILLEGITIMATES. 
 
 Were not entitled to benefits of intestate acts. 
 May inherit from mother, and mother from them, 
 May inherit the one from the other in certain cases. 
 Legitimized by subsequent marriage of parents, 
 
 IMBECILITY. 
 
 Of intellect may render party incapable of devising. 
 
 90 
 91 
 93 
 
 92 
 
 106 
 
 IMPROVEMENT. 
 
 Means for improvement of minor's realty may be obtained under Act 
 
 of 29th March, 1832, 122 
 
 INFANTS. 
 
 Privileges and disabilities of, 35 
 
 Are divided into those over and those under 14, 31 
 
 Orphans' Court appoints guardians for, ...... 32 
 
 All courts may appoint guardians ad litem for, ..... 29 
 
 All courts may admit guardians as p-ocAein amis for, ... 29, 35 
 
INDEX. 1 99 
 
 PAGE 
 
 INFANTS (continued). 
 
 Defendants, cannot appear to a suit by attorney, .... 36 
 
 Defendants, cannot appear to a suit by proc/ieim ami, .... 31 
 
 Defendants, must appear by guardian, 35, 36 
 
 Plaintiffs, may sue through prochein ami, . . . . . 31, 36 
 
 Under the age of 14 Orphans' Court appoints their guardian, . . 32 
 
 When they arrive at 14 may request Orphans' Court to cliange, 31, 32, 36 
 
 Contracts of, generally voidable, and not void, 36 
 
 Not well settled which voidable and which void, .... 37 
 
 Are liable in cases arising ex delicto, 37 
 
 Contract of, as surety, void, 36 
 
 Warrant of attorney of, void, 35 
 
 Not liable for money borrowed, ........ 35 
 
 May bind themselves for necessaries in certain cases, ... 36 
 
 Cannot alien their land, 36 
 
 Deed of feme covert infants void, 35 
 
 Marriage of female transfers guardianship by nature to husband, . 34 
 
 Marriage of male does not terminate guardianship, .... 34 
 
 All who deal with, bound to know fact of infancy, .... 37 
 
 Law in England as to ages of, 33 
 
 Eemedies of, against guardians, ....... 38 
 
 Cannot make a valid will, 106 
 
 INTESTATES. 
 
 Laws in Pennsylvania, relating to, . . . . . . 87 to 93 
 
 Real estate of, vests in the blood of perquisitor, .... 94 
 
 Eeal estate of, will not escheat, so long as there be kin of, . . 94 
 Descent from. See Personalty, Realty. 
 
 INVENTORY. 
 
 Of minor's or decedent's estate, treated of, .... 68, 69 
 
 Guardian of minor must file, within thirty days, .... 69 
 Must be rendered, on application for leave to sell or mortgage, . 137 
 
 INVESTMENTS. 
 
 Of ward's moneys should be made by guardian as such, . . . 105 
 In what securities may be made, 95, 105 
 
 ISSUE OF INTESTATES. 
 
 In default of, how the estate vests. See Peesonalty, Realty. 
 
 L. 
 LEGACY. 
 
 In favor of lineal descendants, not to lapse by death of legatee, . 101 
 
 LIENS. 
 
 Certain, on land sold under Act of 1853, discharged, . . . 130 
 
 LIMITATION. 
 
 Of power to accumulate, provided for by Act of 1853, . . . 132 
 Of power to claim personal property under the intestate act, , . 90 
 
200 INDEX. 
 
 LITERAEY SOCIETIES. 
 
 Not prohibited from accumulating by Act of 1853, . . . .133 
 
 M. 
 
 MAGISTEATES. 
 
 May commit neglected minors to the guardians of the poor under 
 Act of 1879 24 
 
 MAEINEES AT SEA. 
 
 May dispose of personalty by nuncupative will, .... 100 
 
 MAEEIED WOMEN. 
 
 May give refunding bonds, same as unmarried, .... 67 
 
 . 91 
 91, 103 
 
 May, under Act of 1855, become /erne sole traders. 
 
 Are restricted in njaking wills as regards their husbands, 
 
 Intestate, real estate of, passes under the intestate laws, saving to the 
 
 husband his courtesy, 
 
 Intestate, if no children, personalty vests in husband, 
 Intestate, if children, personalty is divided share and share 
 
 between husband and each of children, .... 
 May make and take conveyances under Act of 1853, 
 
 alike 
 
 91 
 91 
 
 91 
 131 
 
 MATRIMONY. 
 
 When infants may enter into bonds of, 34 
 
 MINOES. See Infants. 
 
 May acquire property by descent or purchase, 97 
 
 Residing out of State, may obtain through court part of legacies or 
 
 shares in partition for maintenance and education, . . . 113 
 Eeal estate of, may be sold to provide maintenance and education 
 
 for, 122, 131 
 
 MORTGAGES. 
 
 Orphans' Courts may authorize creation of, in certain cases, under 
 
 Acts of 29th March, 1832,3d April, 1851, and 18th April, 1853, 122, 123 
 To pay off, sale of land may be decreed, . . . . . .138 
 
 May be ratified in certain cases, 134 
 
 MORTMAIN. 
 
 No devise in, good unless made one month prior to death of testator, 
 or for a moneyed consideration, ....... 103 
 
 MOTHERS. 
 
 Of infants could not appoint a guardian prior to Act of 1881, . . 39 
 Of infants authorized to appoint by Act of 10th June, ISSl, . 25,39 
 Of infants, when appointed guardians by husbands, may appoint a 
 
 testamentary guardian, ......... 40 
 
 Of infants, when appointed guardians, are not liable for maintenance 
 
 of wards, 50 
 
 Of infants, when appointed guardians of estates devised by them, 
 
 their appointees regarded as trustees, ...... 39 
 
INDEX. 201 
 
 MOTHERS {continued). 
 
 Of intestates, in default of issue of such, and of surviving relict, take 
 with the father the personalty absolutely, and a life estate in the 
 realty, 88 
 
 Of intestates, in default of issue, and of brothers and sisters of the 
 whole blood and descendants thereof, subject to life estate of relict, 
 take the realty of intestate acquired by purchase with the father in 
 fee, , 89 
 
 Of intestates cannot inherit intestate's land, descended from the 
 father, where there exists one of the blood, 93 
 
 See, in Table of descent, Peesonaity and Bealty. 
 
 N. 
 
 NEPHEWS AND NIECES OF AN INTESTATE. 
 
 Take in descent per capita, and their children per stirpes, the share of 
 such nephew and niece, 93 
 
 NEXT OF KIN OF AN INTESTATE. 
 
 Of the whole blood : In default of issue of the intestate, and of 
 brothers and sisters of the whole blood and their descendants, 
 
 inherit the fee of the intestate 89 
 
 In default of kin of the intestate of the whole blood, brothers 
 and sisters of the half blood inherit, ..... 89 
 See, in Table of descent. Personalty, Ebalty, as to the rules of 
 inheritance in Pennsylvania. 
 
 NOTICE. 
 
 In proceedings in partition, public notice shall be given where the 
 parties are not known, ......... 113 
 
 In sales of decedent's estates, instructions as to, . . . 52,123,128 
 
 O. 
 OBJECT. 
 
 Of the Act of 1853 is to transmit title unincumbered, . . . 138 
 
 OCCUPANCY. 
 
 The word is comprised in that of purchase, 85 
 
 ORPHANS' COURTS. 
 
 Were revived in Pennsylvania by Act of 1713, .... 55 
 
 Are invested by the Constitution of 1874 with the powers of the 
 
 registers, 
 
 Have no jurisdiction, unless by virtue of an Act of Assembly, 
 
 Jurisdiction of, under the Act of 1836, 
 
 Jurisdiction of, under the Act of 1853, 
 
 May appoint guardians under Act of 1832 
 
 May appoint guardians under Act of 1850 
 
 May appoint guardians under Act of 1855 
 
 May appoint guardians under Act of 1864 
 
 May appoint guardians under Act of 1879. 
 
 128 
 
 139 
 
 120 
 
 124 
 
 to 133 
 
 26 
 
 27 
 
 27 
 
 27 
 
 28 
 
202 INDEX. 
 
 PAGE 
 
 ORPHANS' COURTS {continued). 
 
 May authorize sale of ward's realty to provide for maintenance and 
 
 education, 51 
 
 May authorize the private sale of the undivided interest of a ward, . 62 
 May authorize payments to be made to guardians appointed in 
 
 another State, .......... 27 
 
 May decree partition of land held in common, ..... 121 
 
 May appoint appraisers in partition, ....... Ill 
 
 May grant one bill to all parties instead of several, .... 115 
 
 Has j urisdiction in certain cases of testacy since Act of 1840, 113, 11 5, 120 
 
 Has not exclusive jurisdiction in partition, 114 
 
 May entertain a petition for a review after a decree of Supreme Court, 74 
 
 May authorize leasing on ground-rent of minor's realty, . 64, 126, 135 
 
 May authorize sale of decedent's estate under Act of 1851, . . 127 
 
 May authorize sales of realty to effect distribution, .... 135 
 
 May authorize sale of realty to pay off a mortgage, .... 138 
 
 May substitute persons to act for derelict trustees, .... 134 
 
 Cannot order a sale of realty, of which decedent was not seized, . 137 
 Cannot order sale of decedent's realty to pay a debt, the lien of which 
 
 is lost, 1 . 137 
 
 May discharge guardian. See Dischakge. 
 
 P. 
 
 PARENTS. 
 
 May lose or abandon the guardianship of their children, ... 24 
 
 PARTITION. 
 
 Treated of, 109-121 
 
 Decreed by Orphans' Court only by virtue of some Act of Assembly, 120 
 
 Inquest in, composed of six persons now 120 
 
 May be made of coal and timber rights, 119 
 
 May be made of several interests in one proceeding, . . . 117 
 May be ordered, since 1847, where lands were held by decedent in 
 
 common with others, 121 
 
 May be ordered since 1849, where child is born subsequent to the 
 
 making of the will, 121 
 
 Land valued in, shall be allotted to the heir offering the highest 
 
 price, ............ 116 
 
 Sales of land in, may be set aside for inadequacy of price, . . 139 
 
 PETITION. 
 
 To Orphans' Court to sell lands of decedent should set forth the re- 
 quisites contained in the 33d section of the Act of 1832, . . 137 
 
 To obtain authority to sell under Act of 1853 must set forth the title 
 of the land and the purpose of the sale, 130 
 
 PRESCRIPTION. 
 
 The word comprised in that of purchase, 85 
 
 PRICE. 
 
 Inadequacy of, a reason for setting aside a sale of realty of a decedent, 139 
 
INDEX. 203 
 
 PEINCIPAL MONEY. '"'"'"' 
 
 Derived from sales of realty under Act of 1853 not to be expended 
 for purposes other than payment of liens, etc., . . .63, 131 
 
 PEOCEEDS OP SALES. 
 
 Of decedent's estate may be paid into court, or by Act of 1868 
 vested at the discretion of the court, 117 
 
 PEOCHEIN AMI. 
 
 Definition of term, 30 
 
 31 
 
 29 
 19 
 31 
 
 Is one accepted by courts in oases where an infant is plaintifi) 
 May be appointed by court under Act of 1832, . 
 Is rather an attorney than a guardian, .... 
 Cannot appear for an infant defendant, .... 
 
 PUECHASB. 
 
 Generally treated of, 84-108 
 
 Is where property vests in one by his acceptance of the act of another, 85 
 The word comprises escheat, occupancy, prescription, forfeiture and 
 alienation, ........... 85 
 
 PUECH AS E-MONEY. 
 
 How disposed of, 123, 126, 131 
 
 PUECHASEES. 
 
 May pay into court purchase-money of sales by trustees, . . .102 
 May gain possession of property sold at Orphans' Court sales, how, 114, 126 
 Title of at Orphans' Court sales, not affected by the revocation of the 
 
 letters testamentary, . 114 126 
 
 If creditors of decedent, may at sales tender their receipts, . . 125 
 Having any complaint to make should do so at Orphans' Court before 
 
 confirmation, 138 
 
 E. 
 EEAL ESTATE. 
 
 When sold in partition not liable for decedent's debts, . . . 113 
 
 As to appointment of appraisers of, 104, 111 
 
 Title of, sold by order of court, not affected by revocation of letters tes- 
 tamentary, 114, 126 
 
 Acquired by testator after making will passes by devise, . . . 101 
 
 101 
 90 
 
 Devises of, pass the estate without words of inheritance, . 
 Eesidue of proceeds of sales of certain, passes as realty, . 
 Vested in trustee for wife not subject to control of husband descend; 
 
 to her heirs free from estate by courtesy, .... 
 When in two counties, before sale of security how entered. 
 Before granting order to sell, statement of, must be rendered, . 
 Part of ward's, may be sold to improve balance. 
 Notice of sale of decedent's, how given, 
 
 93 
 139 
 122 
 122 
 123 
 
 EEFUNDING BONDS. 
 
 Are given under the Acts of 24 February, 1834, and of 13 April, 
 1859, 57, 65, 66, 67 
 
204 INDEX. 
 
 PAGE 
 
 BEGISTER OF WILLS. 
 
 Empowered to issue citations to the holder of a will, ... 98 
 
 Empowered to issue citations to take testimony, .... 99 
 
 Empowered to issue citations to witnesses of wills, .... 99 
 
 RELEASE. 
 
 Given erroneously by ward will not bar citation, .... 73 
 
 RELIGIOUS SOCIETIES. 
 
 Not prohibited from accumulating by Act of 1853, .... 133 
 No devise made to, valid unless made one month prior to death, . 103 
 
 RENTS. 
 
 So far as accrued, coming to a tenant for life, may be disposed of by 
 will, 100 
 
 RESIDUARY ESTATE. 
 
 Not disposed of by will, passes under the intestate acts, ... 93 
 
 RESIDUE. 
 
 Of proceeds of sale of decedent's realty, passes as realty would under 
 the intestate acts, .......... 123 
 
 REVIEW. 
 
 Is a matter of right under Act of 1840, 74 
 
 RULE IN SHELLEY'S CASE. 
 
 Reason and dangers of, 107 
 
 RULES OP ORPHANS' COURT. 
 
 In Philadelphia, 59 
 
 S. 
 
 SALES OF WARD'S REAL ESTATE. 
 
 Are provided for by the 31st, 32d, 33d, 34th sections of Act 29 March, 
 
 1832, text of act given, 51, 52 
 
 Also by Act of 16 March, 1847, 52, 53 
 
 Also by Act of 3 April, 1851 52,53 
 
 Also by Act of 18 April, 1853, text of sections given, . . 53, 54 
 Private sales of, under Act of 1853, discharge the premises sold from 
 
 debts of decedent excepting debts of record or secured by mortgages, 65 
 
 Terms of, will be directed by court under Act 22 April, 1859, . . 54 
 
 SECURITY. 
 
 Must be given by distributees, ........ 113 
 
 In sales of realty, must be by recognizance, ..... 118 
 
 SECURITY BONDS. 
 
 Were provided for as early as 1693, ....... 55 
 
 May be divided into two classes : 1st, for the performance of duties 
 by guardians. 
 
 (1) Under section 7 of Act of 29 March, 1832, text given, . . 26 
 
 (2) Under section 8 of Act of 29 March, 1832, text given, . . 58 
 
 (3) Under section 22 of Act of 29 March, 1832, text given, . . 59 
 
INDEX. 205 
 
 SEGUE ITY BONDS (contmued). 
 
 (4) Under section 33 of Act of 29 March, 1832, text given, . . 60 
 
 61 
 61 
 62 
 63 
 64 
 64 
 64 
 
 (5) Under section 5 of Act of 3 April, 1851, text given, . 
 
 (6) Under section 3 of Act of 18 April, 1853, text given, . 
 
 (7) Under section 4 of Act of 18 April, 1853, text giVen, . 
 
 (8) Under section 6 of Act of 18 April, 1853, text given, . 
 
 (9) Under section 1 of Act of 18 April, 1864, text given, . 
 
 (10) Under section 1 of Act of 18 March, 1869, text given, 
 
 (11) Under section 1 of the Act 17 May, 1871, text given, 
 2d, for the refunding to executors, administrators, guardians, 
 
 etc., moneys paid erroneously. 
 
 (1) Under section 45 of Act of 24 February, 1834, text given, . . 65 
 
 (2) Under section 46 of Act of 24 February, 1834, referred to, . . 66 
 
 (3) Under section 47 of Act of 24 February, 1834, referred to, . . 66 
 
 (4) Under section 49 of Act of 24 February, 1834, referred to, . . 66 
 
 (5) Under section 52 of Act of 24 February, 1834, referred to, . . 66 
 
 (6) Under section 61 of Act of 24 February, 1834, referred to, . . 66 
 
 (7) Under section 1 of Act of 13 April, 1859, text given, ... 67 
 
 Rules for in Orphans' Court of Philadelphia 59 
 
 May be given after sale of real estate but before confirmation, . . 62 
 In suits on, the declaration should assert a right of action in the Com- 
 monwealth, 68 
 
 Court may demand additional without releasing first, ... 80 
 Practice in suits on, is regulated by 6th section of Act of 14 June, 
 
 1836, text of section given 82 
 
 SOCIETIES. 
 
 Literary, scientific, charitable, and religious, not prohibited from ac- 
 cumulating by Act of 1853, 133 
 
 SOLDIERS. 
 
 In actual service may dispose of personalty by nuncupative will, . 100 
 STATEMENT. 
 
 Of real estate of decedent to be made, 122 
 
 SUPREME COURT. 
 
 Will not review the discretion exercised by the Orphans' Court in 
 the appointment of a guardian, 32 
 
 SURETY. 
 
 Liabilities of, '9 
 
 Non-resident, who has obtained from guardian property of ward, will 
 
 be compelled to deliver same on receiving counter security, . . 79 
 
 The Orphans' Court has no power to release 79 
 
 "When bond of, was marked " cancelled," the word stricken off, . . 79 
 
 May bc' sued in the common law courts, 81 
 
 No suit can be maintained against, until guardian's liability has been 
 
 fixed in the court, 81 
 
 On the original bond is not liable for default of guardian in regard 
 
 to moneys received from the sale of ward's realty by order of 
 
 court, 80 
 
206 INDEX. 
 
 SURETY (continued). 
 
 Eights of: is entitled to subrogation to the rights and remedies of the 
 
 ward, 83 
 
 Is entitled to counter security under 28th section of Act of 29 March, 
 
 1832, text of section given, 84 
 
 T. 
 
 TENANT FOE LIFE. 
 
 May dispose by will of accrued rents and emblements, . . . 100 
 
 TENURES IN PENNSYLVANIA. 
 
 Allodial, 21 
 
 TEEMS OF SALE OP WAED'S EEALTY. 
 
 Directed by court under Act of 1859, 54 
 
 May be amended before record is made, ...... 138 
 
 May be directed by the court 134 
 
 TESTACY. 
 
 Jurisdiction of Orphans' Court extended to, when, . . . 113, 120 
 TITLE OF PUECHASEE. 
 
 Under Act of 1853, indefeasible, 130 
 
 TRUST ESTATE. 
 
 Where no tenancy by courtesy in, 93 
 
 TRUSTEES. 
 
 May join in making conveyances when, 131, 134 
 
 W. 
 WEDLOCK. 
 
 The provisions of the intestate Act of 1 833 applied only to those bora 
 in lawful wedlock, but this is altered by Acts 27 April, 1855, 14 
 May, 1857, and 5 June, 1883, as to illegitimates, and by Acts 4 May, 
 
 1855, as to adopted children, 90, 91, 92 
 
 WIDOW OF AN INTESTATE. 
 
 Takes, where no children, one-half the realty for life, one-half the 
 
 personalty absolutely, 87 
 
 Takes where children, one-third the realty for life, one-third the 
 
 personalty absolutely, 87 
 
 Where no kindred exists, inherits all the estate, . . . 89, 93 
 Share in partition remains a lien on part of realty, .... 112 
 
 Taking under intestate act loses her dower 90 
 
 At common law could not be deprived of her dower, by husband's 
 
 will, .~ 103 
 
 WIDOW OF A TESTATE. 
 
 Loses her dower by taking under husband's devise 103 
 
 WIDOWER OF AN INTESTATE. 
 
 Takes, where no children, courtesy in realty, all the personalty abso- 
 lutely ; where children, takes courtesy in realty, equal share with 
 
 each child of personalty, 87, 91 
 
 Where no kindred, inherits all the estate, 89, 93 
 
INDEX. 207 
 
 WILLS. 
 
 Defined 105 
 
 Power of making, 98 
 
 Legality of execution of, 105 
 
 Married woman may dispose of property by, 102 
 
 Not eflfectual unless testator be 21 years of age 100 
 
 Executed by directions of testator, 102 
 
 Idiots cannot make valid, 106 
 
 Infants cannot make valid, 106 
 
 How construed, in reference to the estate 104 
 
 Copies of those made in another county may be probated, ... 99 
 
 Original, and proven copies, shall be recorded, 99 
 
 Single women's, revoked by subsequent marriage, .... 101 
 
 Single women's, may be republished after marriage, .... 106 
 Single men's, revoked pro tanto by marriage when no provision made 
 
 for wife and children, 107 
 
 Eevoked pro tanto by birth of a child, 101 
 
 In writing conveying personal property, how revoked, . . . 101 
 
 Provisos as to making valid will, 100 
 
 Nuncupative, may be made of personalty under certain circum- 
 stances, 100 
 
 Not admitted to probate until lapse of fourteen days, ... 99 
 
 Testimony to prove, not generally admitted after lapse of six months, 99 
 
 WOMAN. 
 
 Divorced for adultery, who cohabits with partner in crime, incapable 
 
 of willing hereditaments, 98 
 
S^ >'----^-