she or they, together with such refusing or renouncing executor or executors, would 12 March 1800 § 2. be empowered to do, if he, she or they had not refused or renounced.(b)

3 Sm. 433. Ibid. § 3.

trators with the

88. If, where such devises as aforesaid have been or shall be made, or authorities and directions given, such executor or executors are deceased, or shall hereafter die, or have refused or shall hereafter refuse, or have renounced or shall Power of adminisrenounce, and letters of administration with the will annexed have been or shall be will annexed. granted, it shall and may be lawful for such administrators with the will annexed, to sell and convey such real estates, and otherwise act, respecting the same, as fully and completely as if such deceased, refusing or renouncing executor or executors, might or could have done, were he, she or they still living, or had he, she or they accepted the execution of the last wills and testaments of such testators, or had not renounced. (c)

Ibid. § 4.

Power where exec

89. If, where such devises as aforesaid have been made or shall be made, or authorities and directions given, such executor or executors shall have been or hereafter may be dismissed or otherwise discharged, the executor or executors utors are disremaining, shall have like power to sell and to execute the said trusts and author- missed. ities, as fully and amply as if all the executors named had joined therein; or if all the executors have been or hereafter shall be dismissed, or the letters testa- Or letters testamentary have been or shall be in any case vacated, and new letters awarded, it mentary are shall and may be lawful for the administrators with the will annexed, or the vacated. administrator de bonis non, or other person or persons to whom letters of administration shall legally issue, to sell and to execute the said powers and authorities mentioned and contained in any last will and testament, as fully and amply as if all the executors named had joined therein.

90. Nothing in this act shall be deemed or taken to prevent any testator from directing, by his or her last will and testament, otherwise than is herein declared and enacted.

Ibid. § 5.

P. L. 73.

91. The executors and administrators of every decedent shall, immediately after 24 Feb. 1834 § 1. the granting of letters testamentary or of administration to them, cause notice thereof to be given in one newspaper, published at or near the place where such Executors, &c., to decedent resided, once a week, during at least six successive (d) weeks, together give public notice with their names and places of residence, (e) and in every such notice they shall request all persons having claims or demands against the estate of the said decedent to make known the same to them without delay.

to creditors.

Ibid. § 12.

powers contained

92. All powers, (g) authorities and directions, relating to real estate, (h) contained in any last will, and not given to any person by name or by description, To exercise all shall be deemed to have been given to the executors thereof;(i) but no such power, authority or direction shall be exercised or carried into effect by them, in a will relating to except under the control and direction of the orphans' court having jurisdiction real estate. of their accounts.(k)

Ibid. § 13.

Power to sell lands to vest the free

93. The executors (1) of the last will of any decedent, to whom is given thereby a naked authority only to sell any real estate, (m) shall take and hold the same interests therein, and have the same power and authorities over such estate, for all purposes of sale and conveyance, and also of remedy by entry, by action(n) hold in the execuor otherwise, as if the same had been thereby devised to them to be sold, saving tors. always, to every testator, his right to direct otherwise. (0)

(b) This act is a declaratory, not a remedial one. Zeback v. Smith, 3 Binn. 72. Miller v. Meetch, 8 P. S. 419. See Co. Litt. 113 a.

(c) Administrators cum testamento annexo have no power, as such, independently of this act, to execute a power given to executors, to make sale of the testator's land. Moody v. Fulmer, 3 Gr. 18. See Cornell v. Green, 10 S. & R. 14. Commonwealth v. Barnitz, 9 W. 252.

(d) This provision is complied with, by insertions of the notice in such paper, for six successive weeks, although more than seven days intervened between two insertions. Stoever's Appeal, 3 W. & S. 154.

(e) If the notice be dated at a certain place, it is to be taken as the place of residence of the administrators. Stoever's Appeal, 3 W. & S. 154. See Williams v. Moore, 1 T. & H. Pr. § 1250.

(g) Where testator directed his estate to "be valued and appraised by three or more creditable and judicious men;" held, that this clause did not give the power of appointing appraisers to the executors. Boshart v. Evans, 5 Wh. 551-61.

(h) See Clark v. Riddle, 11 S. & R. 311. Brown v. Dysinger, 1 R. 408. Burr v. Sim, 1 Wh. 252, 266. Ex parte Elliot, 5 Ibid. 524. Walker v. Quigg, 6 W. 87. Downer v. Downer, 9 Ibid. 60.

(i) This, it seems, is but declaratory of the existing law. Lloyd v. Taylor, 2 Dall. 223; s. c. 1 Y. 422. (k) It is only the powers contained in the will which are to be executed under the direction of the orphans' court, not those necessary to the execution

of the power and not in the will. Kirk v. Carr, 54 P. S. 285. And see Myers's Appeal, 62 Ibid. 104. Bell's Appeal, 66 Ibid. 498. Gideon's Estate, 2 W. N. C. 355. The court may compel the executor to exercise a power to sell, and give security for the distribution of the proceeds. Houck v. Houck, 5 P. S. 273. McFarland's Appeal, 37 Ibid. 300.

(1) See supra 86-9, and infra 96.

(m) As to the mode of sale, see "Trustees.' And see Wood's Estate, 1 P. S. 368. Silverthorn v. McKinster, 12 Ibid. 67. Jones v. Wood, 16 Ibid. 25.

(n) He may maintain ejectment against any one in possession. Carpenter v. Cameron, 7 W. 51. Chew's Executors v. Chew, 28 P. S. 17. Kirk v. Carr, 54 Ibid. 285. See infra 136.

(0) By a devise of lands to executors, for purposes of sale and distribution, there is effected an equitable conversion of the real into personal estate; and it is so regarded in equity, for all purposes. Allison v. Wilson's Executors, 13 S. & R. 330. Morrow v. Brenizer, 2 R. 185. Allison v. Kurtz, 2 W. 185. Gray v. Smith, 3 Ibid. 289. Hay v. Mayer, 8 Ibid. 203. Simpson v. Kelso, Ibid. 252. Alexander v. McMurry, Ibid. 504. Selfridge's Appeal, 9 W. & S. 55. Willing v. Peters, 7 P. S. 287. Fisher v. Harris, 10 Ibid. 459. Silverthorn v. McKinster, 12 Ibid. 72. Martindale v. Warner, 15 Ibid. 471. Brown's Appeal, 27 Ibid. 62. Leiper v. Thomson, 60 Ibid. 177. Dundas's Appeal, 64 Ibid. 325. Eby's Appeal, 84 Ibid. 241. Roland v. Miller, 11 W. N. C. 431. But to effect an equitable conversion, the direction to sell must be positive and

24 Feb. 1834 § 14. P. L. 75.

94. The survivor or survivors of several executors of any last will, containing a devise of real estate to such executors, for the purpose of sale or otherwise, or Surviving and act- a power or naked authority only to them to sell the same as aforesaid; (p) also, the acting executor or executors of any such will, where one or more of them resign, refuse() or renounce the trust, or are discharged or dismissed therefrom, (r) shall have the same interest in and power over such estate, for all purposes of sale, conveyance and remedy as aforesaid, as all the executors might have or exercise for the like purposes, saving always, to every testator, his right to direct otherwise.

ing executors to have the same powers and interests.

Ibid. § 66

Executors to give notice of devise or bequest to a corporation.

Ibid. § 67.

Ibid. § 68. Acts done by an

administrator, to

be valid.

14 April 1840 § 4. P. L. 351.

Executors, &c., to collect bonds for

of unseated lands.

95. Whenever any device or bequest shall be made to any public corporate body, by any last will and testament, the executors thereof shall, within six months after they undertake the execution of such will, make known, by letters addressed to such corporate body, the nature and amount of such devise and bequest, together with their names and places of residence.

96. All and singular the provisions of this act relative to the powers, duties and liabilities of executors, are hereby extended to administrators with a will annexed.(s)

97. All such acts of administration as would be in due course of law, in case of intestacy, if done in good faith and without notice of a will, shall not be impeached, though a will should afterwards be discovered and established.(t)

98. The executors or administrators of any decedent whose real estate may have been or hereafter may be sold for taxes, during the lifetime of such decedent, in pursuance of the several laws of this commonwealth, and a bond or bonds surplus from sale given by the purchaser for the surplus moneys arising from such sale, may proceed to recover and collect the same, as fully and in the same manner as the decedent, if living, could collect the same, and the moneys when collected, after deducting therefrom the expenses of collecting, shall be assets in the hands of said executors and administrators, in the same manner, to all intents and purposes, as though the same had been collected on a bond due the decedent; but it shall be in the power of the court, in which the same is about to be collected, on application by any heir or heirs, creditors or devisees of such decedent, to make an order to suspend or prevent the collection of said moneys when, in the opinion of said court, such collection may operate injuriously on the interests of said heirs, creditors or devisees.

Courts may suspend proceedings on application of heirs, &c.

Ibid. § 5.

To collect surplus

seated lands sold

for taxes after decedent's death.

99. When any person has or shall die seised of unseated land, leaving debts due at the time of his death, which are or shall become liens on his real estate, of proceeds of un- and said land is now or shall be sold for taxes, and bonds given for the surplus money pursuant to law, it shall be lawful for the executors or administrators of such decedent to collect said bonds as fully and effectually as though the land had been sold during the lifetime of such decedent; and the moneys when so collected, after deducting out the expenses of such collection, shall be paid into the court of common pleas when such bond is filed, and distributed by order thereof, in the same manner as moneys arising from a sale by the sheriff of said property on such lien, would have been distributed, and the like remedy by appeal shall be given as in case of sheriffs' sales.

1705 §1. 18m. 33.

VII. Powers of foreign executors, &c.

100. All wills in writing, wherein or whereby any lands, tenements or hereditaments, within this province, have been, are or shall be devised, being proved by

explicit, not resting in the discretion of the executors, and subject to no contingency. Boshart v. Evans, 5 Wh. 662. Bleight v. Manufacturers' and Mechanics' Bank, 10 P. S. 131. Anewalt's Appeal, 42 Ibid. 414. Wells v. Sloyer, 1 Clark 516. McClure's Appeal, 72 P. S. 414. Swift's Appeal, 87 Ibid. 502. Paterson's Appeal, 88 Ibid. 397. A positive direction to sell, after the death of the testator's widow, effects an equitable conversion. Jones v. Caldwell, 94 P. S. 42. An intent to create, from the blended realty and personalty, a fund in money, for purposes of distribution, is equivalent to an express direction to sell. Lardner's Estate, 39 L. I. 440. A naked power to sell, given to executors by will, does not operate as a conversion. Chew v. Nicklin, 45 P. S. 84. Hunt's Appeal, 14 W. N. C. 377. It seems, that the estate of the executors, under this section, is to be viewed in the light of an executory devise, or springing use, which has no being until the occurrence of the event on which it is limited; and that, in the meantime, the legal estate in the land vests in the heirs or devisees. Bleight v. Wright, 1 Phila. 549. Myer's Estate, 9 Ibid. 310.

(p) The act, it seems, applies to a case in which a discretionary power is conferred by will. Taylor v. Morris, 1 N. Y. 341. Meakings v. Cromwell, 5 Ibid. 136. Leggett v. Hunter, 19 Ibid. 445. Evans v. Chew,

71 P. S. 47; s. c. 8 Phila. 103. McDowell v. Gray, 29 P. S. 211.

(9) Such refusal must appear by matter of record. Heron v. Hoffner, 3 R. 393. But see contrà, Perk. § 545. 4 Kent's Com. 325 note, and cases there cited. (r) A power of sale survives to one of three executors. Lippincott v. Philadelphia Trust Co., 14 W. N. C. 125; s. c. 15 Ibid. 69. And may be exercised after a lapse of more than 50 years. Gideon's Estate, 2 W. Ń. C. 355. One of several executors may satisfy a mortgage, without the concurrence of his co-executors. D'Invilliers v. Abbott, 4 W. N. C. 124.

(s) This section puts an administrator with the will annexed on a footing with a surviving executor, but not on a footing with a testamentary trustee. He may execute a power to sell, in order to bring land into a course of administration, but not to execute a trust for a collateral purpose. Ross v. Barclay, 18 P. S. 183-4. Waters v. Margerum, 60 Ibid. 39. See Meredith's Estate, 1 Pars. 433. Apple's Estate, 2 Phila. 171. Lewis v. Sheerer, 1 Luz. L. Obs. 122. Commonwealth v. Mears, 5 Leg. & Ins. R. 67. Montgomery's Estate, 7 Phila. 504. Evans v. Chew, 71 P. S. 47; s. c. 8 Phila. 211. Lantz v. Boyer, 81 P. S. 325.

(t) See Chambers's Estate, 2 Pitts. 143. Cook's. Estate, 1 Phila. 342.

two or more credible witnesses, upon their solemn affirmation, or by other legal 1705 § 1. 1 Sm. 88. proof in this province, or being proved in the chancery in England, and the bill, Powers of execuanswer and depositions transmitted hither, under the seal of that court, or being tors, &c., under proved in the hustings, or mayor's court in London, or in some manor court, or letters granted before such as have or shall have power, in England or elsewhere, to take probates out of this state. of wills, and grant letters of administration, and a copy of such will, with the probate thereof annexed or indorsed, being indorsed hither under the public or common seal of the courts or offices where the same have been or shall be taken or granted, and recorded or entered in the register-general's office in this province, shall be good and available in law for the granting, conveying and assuring of the lands or hereditaments thereby given or devised, as well as of the goods and chattels thereby bequeathed; and the copies of all wills and probates, under the public seals of the courts or offices where the same have been or shall be taken or granted respectively, other than copies or probates of such wills as shall appear to be annulled, disproved or revoked, shall be judged and deemed, and are hereby declared and enacted to be matter of record, and shall be good evidence to prove the gift or devise thereby made. And all such probates, as well as all letters of administration granted out of this province (u) being produced here under the seals of the courts or offices granting the same, shall be as sufficient to enable the executors or administrators, by themselves or attorneys, to bring their actions in any court within this province, as if the same probates or letters testamentary or administrations were granted here, and produced under the seal of the registergeneral's office of this province. (v)

101. It shall be lawful for foreign executors or administrators to issue, or cause to be issued, in the name of such foreign executor or administrator, scire facias within this commonwealth on all judgments, the lien of which is about expiring and in favor of the testator so represented: Provided, That before any further proceedings are had, letters of administration must be granted within this commonwealth, as now provided by law.

27 June 1888 § 1.

P. L. 163.

c., may sue out scire facias before granting of letters

Foreign executors,

here.

102. So much of the 6th section of the act relating to registers and registers' 14 April 1835 § 3. courts, passed the 15th day of March 1832, as provides that no letters testamentary P. L. 275. or of administration or otherwise, purporting to authorize any person to interForeign executors, meddle with the estate of the decedent, which may be granted out of this common- administrators and wealth, shall confer upon such person any of the powers and authorities possessed guardians may transfer public by an executor or administrator under letters granted within this state; and so loans of this state. much of the 7th section of the act relating to orphans' courts, passed the 29th day of March 1832, as provides that "no appointment of a guardian made or granted by any authority out of this state shall authorize the person so appointed to interfere with the estate of a minor in this state," are hereby declared and enacted not to apply to any public debt or loan of this commonwealth; but such public debt or loan shall pass and be transferrible, and the dividends thereon accrued and to accrue be receivable in like manner in all respects, and under the same and no other regulations, powers and authorities, as were used and practised before the said recited acts were passed.(w)

103. So much of the 6th section of the act relating to registers and registers' 12 March 1842 § 5. courts, passed the 15th day of March 1832, as provides that no letters testamentary

P. L. 67.

or of administration or otherwise, purporting to authorize any person to inter- Also loans of the meddle with the estate of a decedent, which may be granted out of this common- city of Philadelwealth, shall confer upon such person any of the powers and authorities possessed phia. by an executor or administrator, under letters granted within this state; and so much of the 7th section of the act relating to orphans' courts, passed the 29th day of March 1832, as provides that no "appointment of a guardian made or granted by any authority out of this state, shall authorize the person so appointed to interfere with the estate of a minor in this state," are hereby declared and enacted not to apply to the stock or loan of the city of Philadelphia or the county of Philadelphia, but such stock or loan shall pass and be transferrible, and the interest thereon accrued and to accrue be receivable in like manner in all respects, and under the same and no other regulations, powers and authorities, as were used and practised before the said acts were passed.(x)

101. If any holder of the loans of this commonwealth, or of the city of Phila- 15 May 1874 § 1. delphia, domiciled or resident abroad out of these United States, or in any other

P. L. 195.

state or territory of these United States, shall have heretofore died, or shall here- Power to transfer after die, it shall and may be lawful for, the person or persons duly authorized by public loans. the laws of the state or country in which the said foreign loan-holder was so domiciled or resident at the time of his or her death, to administer or take charge or possession of the personal estate of the said decedent, in person or by attorney, duly

(u) This act only extended to the British provinces in this country, at the time of its passage. Graeme v. Harris, 1 Dall. 456. McCullough v. Young, 1 Binn. 63. Alfonso's Executors' Appeal, 70 P. S. 347; s. c. 8 Phila. 86.

(r) So much only of this clause is in force as is revived by the following sections: 102-7.

(w) See supra 18, 54. This and the following are confined to persons deriving their authority from some one of the United States; it confers no power on an executor whose letters were granted in a foreign country. Alfonso's Executors' Appeal, 70 P. S. 347. (x) See supra 18, 54.

P. L. 195.

15 May 1874 § 1. constituted and appointed, to transfer and assign, upon the books of the proper office or agency, all loans of this commonwealth, or of the city of Philadelphia, held by or standing in the name of such decedent: Provided always, however, That the person or persons so authorized to administer and take charge and possession of the personal estate of such decedent, or his attorney, shall be required to produce and file full and complete evidence of his authority from the officer or tribunal having jurisdiction of the subject, certified under the hand and seal of any minister, plenipotentiary, charge d'affairs, consul or vice-consul of the United States: Provided further, That before the person authorized to administer the estate of the decedent as aforesaid shall transfer the loans of this commonwealth, or of the city of Philadelphia, as above provided, he shall file with the clerk of the orphans' court of the county where the office or agency for the negotiation of the loans of this commonwealth, or the city of Philadelphia, is located, an affidavit stating that the said decedent is not indebted to any person in this commonwealth, and that the proposed transfer is not made for the purpose of removing any of the assets of said decedent beyond the reach of any of his creditors in this commonwealth; and any transfer, by the person authorized as aforesaid to administer the estate of a decedent, of any of the loans aforesaid, without first making and filing the affidavit as above provided, shall be void.(y)

16 June 1836 § 3. P. L. 683.

And stocks of

banks and incorporated companies.

15 May 1850 § 8. P. L. 767.

within the state.

105. So much of the 6th section of the act relating to registers and registers' courts, passed the 15th day of March 1832, as provides that no letters testamentary or of administration or otherwise, purporting to authorize any person to intermeddle with the estate of a decedent, which may be granted out of this commonwealth, shall confer upon such persons any of the powers and authorities possessed by an executor or administrator, under letters granted within this state; and so much of the 7th section of the act relating to orphans' courts, passed the 29th day of March 1832, as provides that no appointment of a guardian, made or granted by any authority out of this state, shall authorize the person so appointed to interfere with the estate of a minor in this state, are hereby declared and enacted not to apply to shares of stock in any bank or other incorporated company within this commonwealth, but such shares of stock shall pass and be transferrible, and the dividends thereon accrued and to accrue be receivable in like manner in all respects, and under the same regulations, powers and authorities, as were used and practised with the loans or public debt of the United States, and were used and practised with the loans or public debt of this commonwealth, before the said recited acts were passed, unless the by-laws, rules and regulations of any such bank or corporation shall otherwise provide and declare.

106. So much of the 6th section of the act relating to registers and registers' courts, passed the 15th day of March 1832, as provides that no letters testamenLoans of any incor- tary or of administration or otherwise, purporting to authorize any person to porated company intermeddle with the estate of a decedent, which may be granted out of this commonwealth, shall confer upon such person any of the powers and authorities possessed by an executor or administrator, under letters granted within this state, is hereby declared not to apply to any loan or loans of any incorporated company within this commonwealth; but such loan or loans shall pass and be transferrible, and the interest thereon accrued and to accrue be recoverable in like manner in all respects, and under the same and no other regulations, powers and authorities, as were used and practised before the said recited acts were passed.(z)

8 April 1872 § 1. P. L. 44.

Powers of foreign executors, &c., enlarged.

20 May 1891. P. L. 98.

Conveyance by executor or trustee under will proved in another state confirmed.

107. It shall and may be lawful for any executor, administrator or other person representing the estate of any decedent, or for any guardian or other legal representative of the estate of a minor, acting under letters testamentary or of administration, or other authority, granted by or under the laws of any other state or territory of the United States, or of any kingdom, state, sovereignty or country, to transfer any or all shares of stock and registered loan, or either, of any incorporated company of this commonwealth, standing in the name of any decedent, minor, or cestui que trust, and to receive the dividends and interest, or either thereof, whenever a duly authenticated copy of the will, or other grant of authority under which such transfer or receipt is proposed to be made, shall have been filed in the office of the register of wills for the county in which such incorporated company has its transfer-office or principal place of business; (a) and all transfers of stock or loans, or receipts for dividends or interest, heretofore made by foreign executor, administrator, guardian, and others acting as aforesaid, are hereby validated.

108. All deeds and conveyances of lands within this commonwealth heretofore made and executed, and duly recorded in the county where the lands therein conveyed lie, under the authority of any last will and testament, by the executor or executors thereof, or trustee or trustees named in said will, and having power therein to convey real estate, the said will having been duly proved and letters

(y) See Phelps v. Philadelphia, 12 Phila. 300. Shakespeare v. Fidelity Trust Co., 97 P. S. 173; s. c. 8 W. N. C. 92. See also, tit. "Collateral Inheritances."

(z) See supra 18, 54.

(a) The company is not bound to look into the powers given by the will. Williams v. Pennsylvania Railroad Co., 9 Phila. 298.

testamentary granted as prescribed by the laws of the state of which the testator was a citizen at the time of his death, shall, upon the recording of a copy of said last will, duly certified as prescribed by the acts of congress, in the office of the register of wills in the county where the lands conveyed lie, be held to have the same force and effect to pass and convey the estate that was in the testator at the time of his decease, and intended to be conveyed by the deed or conveyance, as if such will had been duly proved and letters testamentary thereon granted within this commonwealth: Provided, That all such deeds or conveyances shall be in such form and drawn in such manner, as to convey the estate intended to be conveyed, either by the laws of this commonwealth, or by the laws of the state of the testator's domicil, and shall have been duly acknowledged as prescribed by existing laws of this commonwealth: And provided, That nothing herein contained shall affect the rights of the parties to any suit now pending.(b)

VIII. Of the debts of a decedent.

109. All debts(c) owing by any person within this state, at the time of his 24 Feb. 1884 § 21. decease, shall be paid by his executors or administrators, so far as they have assets, in the manner and order following, viz.: 1. Funeral expenses, medicine Order of payment furnished and medical attendance given during the last illness of the decedent, (d) of debts. and servants'(e) wages, not exceeding one year; (g) 2. Rents, (h) not exceeding one year; 3. All other debts, without regard to the quality of the same; except debts due to the commonwealth, which shall be last paid. (i)

110. No executor or administrator shall be compelled to pay any debt of the decedent,(k) except such as are by law preferred in the order of payment to rents, until one year be fully elapsed from the granting of the administration of the

111. Whenever the laws of the place in which was the decedent's domicil, at the time of his death, contain any provisions whereby a preference may be given where laws of in the payment of debts due to the citizens or residents thereof, as such, over the decedent's domicil citizens or residents of this state, the executor or administrator shall, in the dis- give preference position of such of the assets as may come into his hands, observe the like rules this state, like prefof preference in favor of the citizens or residents of this commonwealth, over the erence to be citizens or residents of such place, in the same manner as if such rules were hereby expressly enacted.

112. No debts of a decedent,() except they be secured by mortgage or judgment,(m) shall remain a lien on the real estate of such decedent longer than five