29 March 1832 § 49. P. L. 206.

Auditors to be appointed to report liens affecting

the shares of the parties in interest.

(3.) Execution of the deed.

216. In all cases where a sale shall be made by an executor, administrator or guardian, under an order of the orphans' court, and such executor, administrator or guardian shall be removed by the court, or shall die, or become insane, or otherwise incapable, before a conveyance is made to the purchaser, it shall be lawful for the succeeding administrator of the decedent, or for the successor in the guardianship, as the case may be, such succeeding administrator or guardian having given security, to be approved of by the said court, for the faithful appropriation of the proceeds of such sale, to execute and deliver to the purchaser a deed of conveyance for the estate so sold, on the purchaser's full compliance with the terms and conditions of sale; but if, within three months after such sale, there shall be no such succeeding administrator or guardian, having given security as aforesaid, it shall be the duty of the orphans' court, on petition of the purchaser, to direct the clerk of the court to execute and deliver to the purchaser the necessary deed of conveyance, on his full compliance with the terms and conditions of sale, paying into court the moneys payable, and delivering to the clerk the securities required by the said terms and conditions, which moneys and securities shall remain subject to the disposition of the court. Every deed made in pursuance of, and agreeably to the provisions of this act, shall vest the property therein described to the grantee, as fully and effectually as if the same had been made by the persons who may have sold any such estate, circumstanced as aforesaid. The like proceedings may be had where an executor, administrator or guardian shall neglect or refuse to execute and deliver such deed, for the space of thirty days after due notice of an order of the court, requiring him to execute the same.(r)

217. In all cases of sales heretofore made, as well as in all cases of sales hereafter made, by a trustee appointed by the orphans' court of any county within this commonwealth, to make sale of real estate, after proceedings in partition, and where such sales have or shall be held under such order, and the said trustee shall be removed by the court, or has or shall die, or become insane, or otherwise incapable of acting, before a conveyance is made to the purchaser; on the purchaser, or the succeeding administrator of such decedent, or on the administrator of such trustee petitioning the court, it shall be lawful for the administrator of the decedent whose estate was sold, or for the administrator of the trustee, after giving security, to be approved of by the said court, for the faithful appropriation of the proceeds of such sale, to execute and deliver to the purchaser a deed of conveyance for the estate so sold, on the purchaser's full compliance with the terms and conditions of sale; but if, within three months, there be no succeeding administrator or administrators of such trustee, having given security as aforesaid, it shall be the duty of the orphans' court, on the petition of the purchaser, to direct the clerk of the orphans' court to execute and deliver to the purchaser, the necessary deed of conveyance, on his full compliance with the terms and conditions of sale, paying into court the moneys payable, and delivering to the clerk the securities required by said terms and conditions, which moneys and securities shall remain subject to the disposition of the court. Every deed made in pursuance of and agreeably to the provisions of this act, shall vest the property therein described in the grantee, as fully and effectually as if the same had been made by the persons who may have sold any such estate circumstanced as aforesaid.

(4.) Distribution.

218. In all cases where, in consequence of proceedings in partition, the share, or any part thereof, of an heir, in real estate, shall be converted into money, either by reason of the impracticability or inequality of partition, or by virtue of a sale or otherwise, the orphans' court, before making a final decree confirming the partition or sale as aforesaid, may appoint a suitable person as auditor, to ascertain whether there are any liens or other incumbrances on such real estate, affecting the interests of the parties;(s) and if it shall appear by the report of such auditor or otherwise, that there are such liens, the said court may order the amount of money which may be payable to any of the parties against whom liens exist, to be ordered into court paid into the court, and shall have the like power as to the distribution thereof among the creditors or others, as is now exercised by the courts of common law, where money is paid into court by sheriffs or coroners; and where recognizances or other security shall be given for the payment of money, the court may make an order on the party giving such recognizances or other security, to pay the amount thereof into court, when the same shall become due, to be distributed in like manner among the persons holding liens at the time of the partition.

Where recognizance is given, money may be

for distribution.

(r) See supra 162-3, as to the powers of surviving executors, &c. (s) Judgments against the heirs are to be paid to

the judgment-creditors; it is the duty of the administrator to apply for an auditor. Lucas's Appeal, 53 P. S. 404.

band until he have

in trustees.

curity, on separate

219. When, upon any proceedings in the orphans' court,(t) a sum of money 29 March 1832 § 48. shall be awarded by the court for the share or portion to which a married woman P. L. 206. may be entitled, (u) such money shall not be paid to her husband, (v) until he shall share of married have given security, to the satisfaction of the court, that the money thereof, or woman not to be so much thereof as the court shall deem proper, be paid, after his death, to his paid to her huswife, or, if she shall not survive him, to her heirs, as if the same were real given security for estate;(w) or if the husband shall be unable or refuse to give security as aforesaid, the same. the same may be vested in trustees, (x) to be approved by the court, for the same On neglect or repurposes, but reserving to the husband the interest thereof during his life, unless fusal, to be vested the husband shall desire the same to be settled for the separate use of the wife; (y) Provided always, That if the wife, being of full age, on a separate examination, To be paid to husthe husband not being present, shall declare (2) before one of the judges of the band without sesame court, or, if not resident in the county, before a judge of a court of record examination of the in the county or place where she may reside, that she does not require such wife. moneys to be so secured, and that she makes this declaration freely and voluntarily, without any threats or compulsion on the part of her husband, the full contents and legal effects (effect) of such declaration being first made known to her by the judge, and the said declaration and acknowledgment be certified by the same judge, and filed (a) of record in the said orphans' court; then and in such case, the husband shall not be required to secure the said moneys in manner aforesaid. The form of such declaration shall be as follows: Whereas, 1, A. B., Form of declarathe wife of C. B., am entitled to the sum of proceeding from the sale (or partition) of the real estate of D. E., in the county of Now, I do certify and declare, that 1 consent and agree that the same be paid to my husband, the said C. B., without any condition or security whatever. Witness my hand, this day of- &c. The form of the certificate to be given by the judges (judge) And of certificate. shall be as follows: On the day of personally appeared before me, one of the judges of the (orphans' court) for the county of A. B., the wife of C. B., of [here insert his residence and occupation] who, being of full age, and by me examined, separate and apart from her said husband, and the contents and legal effect of the foregoing instrument, by me fully explained and made known to her, declared that she executed the same freely and voluntarily, without any threats or compulsion on the part of her husband or any other person. Witness my hand and seal, the day and year above written.

A.D.

tion.

ceeds to be in

220. Before any distribution of the proceeds of such real estate shall be made 24 Feb. 1834 § 45. among the kindred of the decedent, the persons entitled to receive the same shall P. L. 82. respectively give sufficient real or personal security, to be approved of by the Distributees to orphans' court having jurisdiction, with condition that if any debt or demand give refunding shall be afterwards recovered against the estate of the decedent, or otherwise be bonds, or the produly made to appear, they will respectively refund the ratable part of such vested. demand, and the costs and charges attending the recovery of the 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 the same is or are unable to give the security aforesaid, then the money shall be put at interest, as directed in the 41st section of this act. (b)

Ibid. § 46.

life to be charged on the premises.

221. Provided always, That in the case of a sale of real estate, under proceedings in partition in the orphans' court, the share of any tenant for life shall not share of tenant for be paid to him or her, but shall remain charged on such or other real estate, according to the directions of such orphans' court. 222. Upon the sale of any real estate by an administrator or trustee, after proceedings in partition in the orphans' court, it shall be the duty of the said administrator or trustee to file in the office of the register of the proper county, an account of his said administration or trusteeship, in the same manner as is now filed after proceedings in partition.. by law required in the settlement of the estates of decedents.

11 April 1863 § 1.

P. L. 341.

Accounts to be

223. The provisions of the 19th section of the act of the 24th day of February 27 March 1865 § 1. 1834, entitled "An act relating to executors and administrators," be and the same P. L. 45. are hereby extended to all sales of real estate of decedent, made by virtue of an On sale in partition, purchaseorder of an orphans' court, under proceedings in partition, whether the said sales money to be paid be made before or after the expiration of two years from the granting of letters into court, &c.

(t) Extended to proceedings in partition in the common-law courts, by act 16 March 1847. See tit. "Partition."

(u) This section does not apply to a woman, un married when the proceeds of the real estate vested in her, but married before its payment. Lefever's Appeal, 69 P. S. 219. See Nissley v. Nissley, 1 W. N. C. 617.

(r) This does not apply to the case of one who is a feme sole, at the time of the partition: in such case, payment to a future husband will bar the wife. Quigley v. Commonwealth, 16 P. S. 353.

(ir) This does not prevent conversion of a wife's real estate into personalty by an orphans' court sale, but restricts the husband's interest in the proceeds. Hay's Appeal, 52 P. S. 449.

(2) A payment of the wife's share into court is unauthorized by law. Goepp's Appeal, 15 P. S. 426. (y) This provision does not extend to pecuniary legacies. Lowman's Appeal, 3 W. & S. 349-50.

(2) The declaration is not binding on her, if made before the amount of her share has been duly ascertained and fixed. Walter's Estate, 2 Wh. 246. If made afterwards, it cannot be retracted. Ibid. See Watson v. Marshall, 19 Eng. L. & Eq. 569.

(a) It must be filed during the lifetime of the wife; otherwise, at her death, her share will go to her heirs at law. Beyer v. Reesor, 5 W. & S. 501; s. c. 1 Clark

445.

(b) See infra 249, and see tit. "Real Estate."

27 March 1865 § 1. testamentary or of administration; and the moneys arising from such sales shall be paid into court and distributed according to law.

P. L. 45.

28 April 1869 § 1. P. L. 105.

224. So much of the act of assembly, approved the 27th day of March 1865, entitled "An act relating to proceedings in partition," as requires the money arising In the discretion of from such sales to be paid into court, be and the same is hereby modified, so that the court may, in its discretion, require such payment, or may make such order as may be just in the premises.

the court.

18 April 1869 § 1. P. L. 28.

225. In all cases of proceedings in the orphans' court in partition, wherein a wife has made or shall hereafter make her declaration, in pursuance of the 48th section Effect of divorce on of the act of March 29th, Anno Domini 1832, of her desire that the money secured to wife's declaration. her under the said proceedings shall be paid to her husband, and subsequent to the filing of the said declaration, and before the actual payment of the said money, the said parties shall have been, or shall thereafter be lawfully divorced from each other, the said money so as aforesaid secured shall be and remain the property of the said wife, notwithstanding the said declaration, and shall be legally collectible by her in her own name and for her own use.

28 May 1871 § 1. P. L. 274.

Costs to be paid on confirmation of

sales in partition. Recognizance to be

given for balance of purchasemoney.

Ibid. § 2. Refunding bonds

to be given before suit on recogni

Zance.

Ibid. § 3. Lien of recogni

zance.

4 April 1889. P. L. 23.

Duty of clerk to keep a partition docket.

226. In all cases of sales of real estate, in proceedings on writs of partition and valuation in the orphans' court, it shall and may be lawful for the court to order and decree that the costs and expenses upon said proceedings (including a reasonable compensation to the executor, administrator or trustee, by whom said sales shall be made), shall be paid, on the confirmation of such sale by the court; and the purchaser or purchasers shall enter recognizance in the orphans' court, with sufficient surety, to be approved of by said court, for the payment of the balance of the purchase-money to the widow and heirs, or legatees, who may be entitled to the

same.

227. Before any suit or action shall be commenced on any recognizance entered into as aforesaid, the person or persons entitled to receive the money secured thereby, shall respectively give sufficient real or personal security, to be approved of by the orphans' court having jurisdiction, or a judge of said court, when the court is not in session, with condition, that if any debt or demand shall be afterward recovered against the estate of decedent, or otherwise be duly made to appear, they will respectively refund the ratable part of such demand, and the costs and charges attending the recovery of the 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 the same is or are unable to give the security aforesaid, then the money shall be put at interest, as directed in the 41st section of the act of February 24th, 1834, entitled "An act relating to executors and adminis

trators."

228. The recognizance aforesaid shall be a lien on the real estate so as aforesaid sold, until fully paid or satisfied.

(5.) Partition docket.

229. It shall be the duty of the clerks of the orphans' courts of the several counties of this commonwealth, and they are hereby required to enter in a book to be procured for that purpose, to be called a partition docket, all the proceedings in partition in every case in their respective courts, from the commencement to the final judgment and decree thereon, and which shall be and the same is hereby made Fees for services. the record of said court. For which service such clerks shall be entitled to receive the same fees as the recorders of deeds receive for recording, to be taxed and paid as part of the costs of such proceedings.

Ibid. § 2. Repealing clause.

15 March 1832 § 29. P. L. 143.

Accounts to be

examined and vouched.

Ibid. § 30.

Certified copy to be presented to orphans' court.

How notice to be given.

230. All acts and parts of acts inconsistent herewith are hereby repealed,

XIV. Of the accounts of executors, &c.

(1.) Filing and passing accounts.

231. Every register, before he shall allow the accounts of any executor or administrator, shall carefully examine the same, and require the production of the necessary vouchers, or other satisfactory evidence of the several items contained

in it.

232. Every register having allowed and filed any account in his office, shall prepare and present a certified copy thereof to the orphans' court of the respective county, at its next stated meeting, being not less than thirty days distant from the time of such filing and allowance, pf all which he shall give notice to all persons concerned, in the following manner, viz.: by an advertisement enumerating all the accounts to be presented at any one time to the said court, in at least two newspapers (if there be two) published in the respective county, (c) or if there be but one newspaper published in such county, then in that one, or if there be none, then in one printed nearest to the said county, at least once a week, during the four weeks immediately preceding the meeting of the court at which such account

(c) The act 15 April 1867 provides that these notices shall be published in secular newspapers, and not in those of a religious or denominational character, pro

vided there are secular newspapers published in the county. P. L. 86.

P. L. 143.

shall be presented, setting forth, in substance, that the accountants (naming them 15 March 1882 § 30. and the character in which they respectively act) have settled their accounts in the office of the said register, and that the same will be presented to the orphans' court for confirmation, at a certain time and place (mentioning the same); and also by setting up conspicuously in his office, and in at least six other of the most public places in the county, (d) at least four weeks before the time appointed for the presentation of such accounts as aforesaid, fairly written or printed copies of such advertisement; and the actual expenses of such advertisement, according to How expenses to the usual rates of advertising in such newspapers, and the setting up of such be paid. notices, shall be divided among all the accounts presented at the same court, and

the proper portion thereof only shall be charged in any of the said accounts, and allowed to the register as the cost of such advertisement and notices.(e)

P. L. 193.

233. No account of an executor, administrator or guardian shall be confirmed 29 March 1832 § 15. and allowed by the orphans' court, except in the cases herein especially provided for, unless it shall appear on the presentation of such account, that notice of such No account to be presentation has been given, conformably to the directions of the act entitled "An confirmed, unless act relating to registers and registers' courts."

such notice has been given. Ibid. § 17.

not to be charged

234. No executor or administrator shall be liable to pay interest but for the surplusage of the estate remaining in his hands or power when his accounts are or ought to be settled and adjusted in the register's office: Provided, That noth- Executors, &c., ing herein contained shall be construed to exempt an executor or administrator with interest, exfrom liability to pay interest, where he may have made use of the funds of the cept for the surplus, &c. estate for his own purposes, previously to the time when his accounts are or ought to be settled as aforesaid.(g)

Ibid. § 18.

235. 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 circum- Orphans' court to stances of the case; but shall not, in any instance, exceed the legal rate of interest determine rate of for the time being.(h)

interest.

amined by the

236. All accounts presented to the orphans' courts by executors, administrators, Ibid. § 16. guardians or trustees, (i) except partial accounts rendered by guardians in pursuance of section the 10th of this act, shall, unless it be otherwise agreed by all Accounts to be exparties interested, be examined by the court or referred to suitable persons, not court and referred exceeding three in number, to be appointed by the said court, or by the parties to auditors. 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 (k)

and witnesses in all cases referred to them.

P. L. 275.

referred to auditors

237. All accounts presented to the orphans' court by executors, administrators, 14 April 1835 § 1. 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 Accounts (except estate shall except to the account, and all or any of the parties shall desire to in Philadelphia refer the account to auditors, the court shall decide whether the matters contested county) not to be call for such reference; and if they do, the court shall appoint three suitable per- unless excepted to, sons; or where the parties are all present or duly represented, and competent to and the parties reagree, 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 or 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. (m)

quest reference.

P. L. 572.

238. The several clerks of the orphans' courts of the counties of this common- 25 April 1850 § 18. wealth are hereby authorized and required to place upon record, in a fair, legible Accounts and hand, in a book or books to be provided for that purpose, all accounts of execuauditors' reports tors, administrators and guardians, as well as all reports of auditors appointed by thereon, to be. the orphans' courts of the several counties of this commonwealth, omitting the recorded.

(d) See act 15 April 1869, as to Delaware county. P. L. 1095. And act 14 February 1871, as to Chester county. P. L. 52.

(e) Where a party exhibits accounts with improper frequency, the remedy is for the court to impose the cost on him. Spangler's Estate, 21 P. S. 335. An executor will not be permitted to settle an account for the mere purpose of charging the estate with a debt due to himself by the testator in his lifetime. Shenck's Account, 5 W. 84.

(g) See For v. Wilcocks, 1 Binn. 194. Callaghan v. Hall, 1 S. & R. 241. Findlay v. Smith, 7 Ibid. 264. Shaeffer's Estate, 9 Ibid. 263. Flinthum's Appeal, 11 Ibid. 16. Harland's Accounts, 5 R. 323, Aston's Estate, 5 Wh. 228. Verner's Estate, 6 W. 250. Dietterich v. Heft, 5 P. S. 87. Brinton's Estate, 10 Ibid. 408. Solliday v. Bissey, 12 Ibid. 347. Wither's Appeal, 16 Ibid. 151. Beck v. Ulrich, Ibid. 503. Biles's Appeal,

24 Ibid. 335.

(h) If an executor mix the funds of the estate with his own moneys, and employ both in trade, the parties in interest may, if they prefer it, insist on having a

proportionate share of the profits, instead of interest on the funds so employed. Robinett's Appeal, 36 P. S. 174.

(i) This embraces an executor's partial account; the decree of the orphans' court confirming such partial account, is a definitive one, from which an appeal will lie to the supreme court. Rhoads's Appeal, 39 P. S. 186. But a partial account, when confirmed, is conclusive only in regard to what is contained in it. Shindel's Appeal, 57 P. S. 43. Leslie's Appeal, 63 Ibid. 355. McLellan's Appeal, 76 Ibid. 231.

(k) An executor whose account is referred to auditors, is bound to answer all questions addressed to him by them, touching his administration of the estate. Bowen's Account, 2 Clark 147.

(7) See tit. "Auditors."

(m) This proviso was repealed by act 27 February 1845, P. L. 69; but the repealing statute was itself repealed by act 10 April 1849; and the original enactment in the text revived. P. L. 620. The proviso was extended to Montgomery county, by act 18 February 1869. P. L. 183.

25 April 1850 § 18. testimony and documents accompanying the same: the fees for this service to be one-half of the amount now allowed by law for the recording of deeds.(n)

Fees.

P. L. 572.

P. L. 53.

239. In all cases where the same person shall, under a will, fulfil the duties of 17 March 1864 § 1. executor and trustee, it shall not be lawful for such person to receive or charge more than one commission upon any sum of money coming into or passing through his hands, or held by him for the benefit of other parties; and such single commission shall be deemed a full compensation for his services in the double capacity of executor and trustee: Provided, That any such trustee shall be allowed to retain a reasonable commission on the interest he may receive from any sum held by him in trust as aforesaid.

Compensation of executors and testamentary trustees.

29 March 1832 § 19. P. L. 194.

In case of deficiency of assets, auditors to be

appointed to report distribution.

(2.) Auditors.

240. Whenever there shall not be sufficient assets to pay all the debts of a decedent, it shall be the duty(0) of the orphans' court having jurisdiction, upon the application of the executor or administrator, to appoint auditors to settle and adjust the rates and proportions of the assets to and among the respective creditors, according to the order established by law: Provided, nevertheless, That no creditor(p) who shall neglect or refuse to exhibit his account to the executor and Creditors neglect administrator, within twelve months after public notice given in one or more of the newspapers published in the county in which letters testamentary or of administration may have been granted, or if there be none in such county, then in one or more newspapers published in an adjoining county, and continued in such newspapers for four (4) consecutive weeks, shall be entitled to receive any dividend of the remaining assets.(r)

ing to exhibit

their accounts to be barred.

Ibid. § 20.

When courts may direct additional

notice to be given of account, or distribution of estate.

to settlement

18 April 1840 § 1. P. L. 319.

Courts may ap

auditors.

241. When any of the heirs, legatees, distributees or creditors of a decedent reside out of this state, or out of the United States, or from other circumstances it may be expedient that additional or further notice should be given of the settlement of the account of an executor, administrator, guardian or trustee, or of the distribution of the assets or surplusage of the estate, it shall be in the discretion of the orphans' court, to require such further or additional notice to be given by such accountant, as they may think proper, to appear in court, or before the auditors by them appointed, as the case may be, at such times as shall be fixed for the examination of such account, or for the distribution of the assets or the surplusage of the estate.

242. Where auditors are required to be appointed by the orphans' courts of this commonwealth, pursuant to the 19th or 34th sections of the act of 29th of March 1832,(s) or the 1st section of the act of 14th of April 1835,(t) to which this is a point one or three supplement, it shall be lawful for said courts to appoint either one or three auditors, at their option, anything in said laws to the contrary notwithstanding; and it shall hereafter be the duty of the orphans' court to appoint auditors according to the proAuditors may be visions of the 19th section of the act, entitled "An act relating to orphans' courts,” appointed on application of a creditor. passed the 29th day of March 1832, (u) on the application of any creditor, as they are now authorized to do, on the application of the executor or administrator; and it shall be the duty of the orphans' court, upon the application of any legatee, heir or other person interested in the distribution of the estate of any decedent, to appoint, at such time as they may think proper, one or more auditors, to make distribution of such estate in the hands of any executors or administrators, to and among the persons entitled to the same.(v)

Or of legatee, heir, &c., to report dis

tribution.

29 March 1832 § 29. P. L. 197.

Balances due by executors, &c., may be docketed

(3.) Balances.

243. It shall be the duty of the prothonotary (prothonotaries) of the courts of common pleas of the respective counties, (w) to file and docket, (x) whenever the same shall be furnished by any parties interested, certified transcripts or extracts(y) of the amount appearing to be due from or in the hands of any executor, administrator, guardian or other accountant, on the settlement of their respective accounts and become liens, 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

&c.

decedent, whether it be solvent or insolvent. Gochenaur's Estate, 23 P. S. 460. Bull's Appeal, 24 Ibid. 286. Peters's Estate, 1 Phila. 581. And see Shallcross's Estate, 13 Ibid. 374. Schenk's Estate, 4 W. N. C. 511. Hammett's Appeal, 83 P. S. 392.

(w) A transcript of a balance due by executors may be filed in a different county from that in which probate was made. Hanson v. Bank of Penn Township, 7 P. S. 261.

(2) It must be filed in the lifetime of the executor. Rowland v. Harbaugh, 5 W. 365. And it is a waiver of exceptions to the account. Roshing v. Chandler, 3 P. S. 369. See Ramsey's Appeal, 4 W. 71.

(y) For form of certificate, see McCracken's Heirs v. Graham, 14 P. S. 209.