Dodson, Leo F.

English

Penn State Dickinson Law: IDEAS

Volume 37 Issue 2 Dickinson Law Review - Volume 37, 1932-1933 1-1-1933 Liability of the Real Estate of a Decedent for His Unrecorded Debts Leo F. Dodson Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Leo F. Dodson, Liability of the Real Estate of a Decedent for His Unrecorded Debts, 37 DICK. L. REV. 121 (1933). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol37/iss2/4 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. NOTESLIABILITY OF THE REAL ESTATE OF A DECE-DENT FOR HIS UNRECORDED DEBTSWhen a person dies owing debts which have not beenreduced to judgment and made a part of the court recordsagainst him, any real estate which he may leave is, by law,made an asset for the payment of these debts. Althoughthe primary fund for the payment of a decedent's debts ishis personalty, yet the legislature at an early date in Penn-sylvania made the decedent's real estate conditionally re-sponsible therefor. The length of time during which theland is liable for the payment of these debts has been grad-ually reduced by various enactments.DEVELOPMENT OF DOCTRINE IN PENNSYLVANIAThe foundation for this theory in Pennsylvania waslaid in a clause in the original charter to William Pennwhereby the freemen of the Province were authorized to"alter the law of England in regard to the descent and en-joyment of lands".' In England at the time of the found-ing of this Province lands of a decedent were not unre-strictedly made assets for the payment of his debts.In pursuance of this clause, the first General Assemblyin December 7, 1682, with Penn's approval modified theEnglish law.2 The act of May 3, 1693 made all lands liablefor payment of debts without any limitations in favor ofheirs.3Other laws to the same effect were passed in 1697,'1700, and 1705,5 and thus the rule became firmly and finallyestablished in Pennsylvania that the lands of a deceasedperson whether in the hands of an heir, devisee or even a1Duke of York's Book of Laws p. 84.2Ibid. p. 120.Ibid. p. 230.'Ibid. p. 264.61 Smith's Laws 7, 57.DICKINSON LAW REVIEWbona fide purchaser from them, were liable for his debtsand that this liability extended without limit of time.Recognizing the inconveniences that arose from suchsecret and unlimited claims and to cure this evil, the legis-lature gradually shortened the period for the bringing ofactions by Section 2 of the Act of April 19, 1794 as supple-mented by Section 4 of the Act of April 4, 1797,6 to sevenyears after the decease of the debtor. Under the acts of1794 and 1797 the decedent's land might be sold on a judg-ment against the executor or administrator only, withoutnotice to the widow, heir or devisee.7 These acts were fol-lowed by others and reduced the time within which actionsmust be brought to five years by the Act of February 24,1834,8 Secs. 24 and 34, as result of Fritz v. Evans, 13 S. &R. 9; to two years by the Act of June 8, 1893,9 June 14,1901, '0 May 3, 1909;"- to one year by the Act of June 7,191712 Sec. 15 (a) as amended June 7, 1919.1Strictly speaking, the Acts of 1700 and 1705 had notcreated the unsecured debts of a decedent, "liens" againsthis real estate. Their effect was to make his real estatein the hands of his heirs and devisees or purchasers fromthem, assets for the payment of his debts, the same as per-sonal property in the hands of his executors or administra-tors."4The present law is embodied in the Fiduciaries Act ofJune 7, 1917,15 Sec. 15 (a) as amended June 7, 1919,16 limit-ing the statutory period to one year and providing the pro-cedure for instituting and indexing actions.63 Smith's Laws 143, 297.?Fritz v. Evans, 13 S. & R. 9 (1825); Sergeant v. Ewing, 36 Pa.156 (1860).OP. L. 70.OP. L. 392.10P. L. 562.,1p. L. 386.12p. L. 447.iOp, L. 412.L'Spear v. Hannum, I Yeates 380, 533 (1794), (1795).15P. L. 447.i6P. L. 412.DICKINSON LAW REVIEWPRACTICAL APPLICATIONS OF THE DOCTRINEThis doctrine is the result of the law's policy to giveto the creditor some security for the collection of his claimapart from the debtor's personal estate through a lien ofgeneral debts against the debtor's land.17These statutes are ones of limitation and repose forthe benefit of widows, heirs and devisees, those claimingunder them, and purchasers.18 Because the Pennsylvaniacourts favor the heir, they require of the creditor a vigil-ant prosecution of his demands in the mode pointed out bythe statute. 19 Where a creditor has "slept on his rights"he cannot look to the real estate for the payment of hisclaims. The creditor has the right, however, to bring hisaction against the executor of the decedent and to prose-cute the same to judgment irrespective of the Act of 1917.Any judgment obtained therein would not be a lien on thedecedent's real estate, but would entitle the creditor toshare in the distribution of any personalty that might comeinto the executor's hands.The Orphans' Court has. no jurisdiction to authorize asale of the decedent's real estate, if all liens have been lostfor want of suit or prosecution. 20  If the Orphans' Courtdoes authorize a sale when there are no debts which areliens, no title will pass and the sale may be attacked col-laterally by the heirs in ejectment ;21 and the heirs willtake the surplus, even as against scheduled debts, if thecreditor has not kept his lien alive pending the sale andconfirmation thereof.22  The proper practice is to petition17Davidson v. Bright, 267 Pa. 580, 586 (1920).1 8Commonwealth v. Beachly, 262 Pa. 545 (1919); Kerper v. Hoch,1 Watts 9 (1832).19Bindley's Appeal 69 Pa. 295 (1871).2OPry's Appeal, 8 Watts 253 (1839); Clauser's Estate, 1 W. & S.208, 215 .(1841); Aurand's Estate, 40 C. C. 343, (1913).21Smith v. Ribblett, 233 Pa. 300 (1912); Smith v. Wildman, 178Pa. 245 (1896).22Bindley's Appeal, 69 Pa. 295 (1871); Dolan's Estate, 231 Pa.180, 185 (1911).DICKINSON LAW REVIEWfor a rule to show cause why the order directing such saleshould not be vacated and set aside.2 3No admission, however solemn, will dispense with a strictcompliance with the statutory mode if the lien is to remainagainst the land. 2' Nor is an award in favor of a creditormade by the Orphans' Court equivalent to an action underthe statute.25 But where an action has already beenstarted within the proper time an award is a sufficient"prosecution to judgment", by Act of 1919.26However, where a creditor has failed duly to protecthimself by establishing a lien against the real estate, hemay still participate in the proceeds of a sale of such prop-erty by the application of the doctrine of equitable conver-sion.27 Under the Act of 1917 if the debt is due at deced-ent's death the creditor must begin an action thereon inassumpsit within one year after the debtor's death againstthe executor or administrator and index it against the de-cedent and his legal representatives. 2 The action is in theCommon Pleas court. It has two functions-it gives noticeof the claim (by indexing the action as soon as begun inthe general judgment index) and it preserves a lien on anyreal estate within that county for a period of five years.The mere filing of the claim with the executor or administra-tor will not preserve the lien, but the creditor must actuallystart suit within one year after the debtor's decease. Theproceeding is strictly in rem.29  The action after havingbeen properly instituted must be "duly prosecuted to judg-ment". The question whether it has been duly prosecutedto judgment is one for the court and not for the jury 0 Ininstituting the action by the issuance of a summons, it isadvisable to join the surviving spouse, heirs and devisees in23Aurand's Estate, 22 D. R. 343.24Hemphill v. Carpenter, 6 Watts 22; Oliver's Appeal, 101 Pa. 299(1882).25Smith v. Ribblett, 233 Pa. 300 (1912).26p. L. 412.27Brennan's Estate, 277 Pa. 509, 511 (1923).2 8Myers v. Lohr, 72 Pa. Super. Ct. 472 (1919).9Soles v. Hickman, 29 Pa. 342, 346 (1857).BOPhillips v. Railroad Co., 107 Pa. 472 (1885).DICKINSON LAW REVIEWthe original action,2 ' rather than to bring them in later bya scire facias because there is a definite time within whichthe creditor must proceed against the surviving spouse andheirs or devisees, i. e., when they must be made "partiesto the action". The scire facias making the spouse andheirs or devisees parties to the action must be issued with-in five years after the expiration of the period for com-mencing suit (within six years from the decease of thedebtor)."2 If the creditor has failed to bring in the heirs,etc., within the proper time he cannot proceed to executehis judgment against the decedent's real estate. The usualpractice in instituting action under the act is the service ofsummons on the executor or administrator, and the accept-ance of service by him which is docketed "decedent perrepresentative". The creditor should make certain of thisservice and not rely on the sheriff. The creditor at thetime of the issuance of the summons should require thatnotice of the suit be served on all the heirs, etc. This isnecessary if any subsequent judgment is to be binding onthe real estate.If the claim is not due at the debtor's death and does notmature until more than one year after his death the creditorfiles a statement which gives notice of his claim until itbecomes due. The creditor has one year after his causeof action arises to start action thereon. 3 The creditorfiles in the office of the Prothonotary of the county wherethe action is to be instituted and also in the county wherethe real estate is situated, a statement of his claim and hasit indexed in accordance with the provisions of the Fidu-ciaries Act. The filing of the statement of the creditor'sclaim within one year of the decedent's death constitutes anotice to all the parties in interest of the possibility ofbringing an action-of assumpsit after the demand becomesdue.84 When the claim becomes due the creditor files aaKirk v. Van Horn, 265 Pa. 549 (1920).32McMurray's Adm's. v. Hopper, 43 Pa. 468, 471 (1862); Hope v.Marshall, 96 Pa. 395 (1880).38Pyles v. Bosler, 11 D. & C. 38 (1928)."Commonwealth v. Cooper, 192 Pa. 424 (1899).DICKINSON LAW REVIEWpraecipe in assumpsit joining the owner of the land andrefers to the prior proceeding to continue the lien of theclaim against the real estate of the decedent.The statutory lien is not the same as the lien of amortgage or judgment, for a decedent may, by an imper-,ative power given to his executors to sell his land for thepayment of his debts, relieve the land from the lien of hisgeneral debts which he cannot do as to liens of record andthe unsecured creditors are remitted to the fund realizedfrom such sale.3 5 The purchaser takes the land subject torecorded debts but gets it free from the general debts whenhe buys it under this absolute power of sale. However,where the power of sale is discretionary, conversion takesplace only when the land is sold. In the meantime andfrom the moment of the testator's death general debts haveacquired a lien which can be continued or divested only inthe mode provided by statute.3When a creditor has failed to take the proper steps toenforce his remedy for the collection of his claim untilafter the period limited by statute, the land is dischargedof liability and the heir or devisee holds it free and clearthereof. Laxity on the creditor's part also deprives him ofthe right to have the rents from the real estate of thedecedent, though ordinarily they are regarded as personalproperty, applied to the payment of the alleged claimsafter the expiration of the statutory period. The only ef-fect of the judgment is to prevent the lapse of the statu-tory lien and not to create a new one.37 This lien continuesto the end of five years from and after the date prescribedfor the commencement of the action, whether judgment berecovered during the first or the second period, 8 becauseit is not the judgment rendered against the personal repre-sentative that confers the quality of the lien on the debts35 Cadbury v. Duval, 10 Pa. 265 (1849); Seeds v. Burk, 181 Pa.281 (1897).5 8Seeds v. Burk, 181 Pa. 281, 288 (1897); Hunt's Appeal, 105 Pa.128 (1884); Chamberlain's Estate, 257 Pa. 113 (1917).3 7Trevor v. Ellenberger, 2 P. & W. 94 (1830).3SHope v. Marshall, 96 Pa. 395 (1880).DICKINSON LAW REVIEWof the deceased person. This dates everywhere from hisdeath. 9From a consideration of the many cases construing thevarious acts which the legislature has passed on the sub-ject, we can discern a disposition on the part of the courtsto impose a strict construction on these statutes which donot create a lien but limit its duration only. If a creditoris to avail himself of the statutory remedy he must care-fully follow the procedure set forth in the acts.Leo F. DodsonCOMMENTING ON THE WEIGHT OF THE EVI-DENCE AND THE CREDIBILITY OF WITNESSESIN THE CHARGE TO THE JURYIn the majority of states, usually because of statutoryor constitutional provisions, trial courts are not permitted,in charging juries, to comment on the facts, or express anopinion on the weight of the evidence or the credibility ofwitnesses.' There the jury prevails as the sole fact find-ing agency, divorced from all suggestions and leads of thetrial court.2 Any remark made by a judge, whether director indirect, intentional or inadvertent, from which thejury may infer what his opinion is, as to the sufficiency orinsufficiency of the evidence, or any part of it pertinent tothe issue, is error.3 However, at common law and in Penn-sylvania it is not error for the trial court in its charge tothe jury to express an opinion on disputed questions offact, provided such questions are ultimately left to the juryfor their decision, without any direction as to how they89Breden v. Agnew, 8 Pa. 233, 236 (1848).138 Cyc. 1646; Tait v. Murphy, 80 Ala. 440; Randolph v. McCain,34 Ark. 696; Miller v. Stewart, 24 Cal. 502; Stacy v. Cobbs, 36 Ill.349; Goss v. Calkins, 162 Mass. 492; Ross v. State, 29 Tex. 499.2State v. Williams, 31 S. C. 4.WFuhrman v. Huntsville, 54 Ala. 263; State v. Ah Tong, 7 Nev.148; State v. Dick. 60 N. C. 440,

Liability of the Real Estate of a Decedent for His Unrecorded Debts

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Liability of the Real Estate of a Decedent for His Unrecorded Debts

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