Appeals, No. 234, March T., 1953 and No. 46, March T., 1954, from order of Court of Common Pleas of Allegheny County, April T., 1943, No. 1896, in Estate of Florence P. McFarland, a weak-minded person. Order affirmed.
Henry S. Moore, with him McMonigle, Geer & Moore, for McFarland.
David W. Craig, with him J. Wray Connolly, William F. Swanson, Jr. and Moorhead & Knox, for Commonwealth Trust Company of Pittsburgh.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
A narrow question of statutory construction is presented for consideration on these appeals. The question is: is a court in authorizing a sale of real estate owned by a weak-minded person under the Act of May 28, 1907, P.L. 292, 50 PS 941 et seq. bound to observe
the procedural requirements of the Act of June 13, 1836, P.L. 589, 50 PS 691 et seq.? The Commonwealth Trust Company of Pittsburgh, Guardian of the Estate of Florence P. McFarland, a weak-minded person, is the appellant at No. 46 March Term, 1954 and Florence P. McFarland, the former weak-minded person, is the appellant at No. 234 March Term, 1953.
On February 23, 1943, Florence P. McFarland was declared to be unable, due to weakness of mind, to take care of her property. The Commonwealth Trust Company of Pittsburgh was appointed guardian of her estate. The assets which became subject to the control of the guardian consisted of a piece of real estate formerly occupied by the ward as her home and household furniture of the estimated value of $500.00. The real estate was subject, however, to two mortgages aggregating about $2,700. The guardian filed a petition in the court below on April 13, 1943, requesting authority to sell its ward's real estate at a private sale for $6,500. The petition contained (1) a recital of the appointment of the guardian (2) ownership of the real estate (3) a copy of the agreement to sell (4) the appraised value for tax purposes at $4,800 (5) the appraisal at $6,500 by two real estate brokers and (6) the petitioner's opinion that the price was fair and reasonable and better than obtainable at public sale. The court found that the sale was in the best interests of the ward and entered an order on April 13, 1943, approving the sale.
The ward was declared competent to manage her own affairs on December 11, 1951 and the guardian was discharged. A petition was filed ex parte by the former incompetent on March 25, 1952, to vacate the order which authorized the sale of the real estate by the guardian and to set aside the sale. A rule was granted on the Commonwealth Trust Company of
Pittsburgh, as Guardian of the Estate of Florence P. McFarland, grantor, and upon Charles P. Berndt and Mary F. Berndt, his wife, grantees, to show cause why the order of court dated April 13, 1943, should not be vacated and the sale set aside. The court below discharged the rule and refused the prayer of the petition. From this final order Florence P. McFarland has appealed at No. 234, March Term, 1953.
Both appellant and appellee agree that the sale of the real estate was made under the Act of 1907, supra. Section 6, 50 PS 961, of this Act provides: "The guardian, so appointed, shall have precisely the same powers, and be subject to the same duties, as a committee on lunacy in the state of Pennsylvania. The court appointing such guardian shall have full power over the same,... and shall enter a decree of sale, mortgaging, leasing, or conveyance upon ground-rent of the real estate, or any part thereof, of the said ward, whenever in the opinion of the court it is necessary for the support and maintenance of the said ward or his family,... or the payment of his or her debts, or where it is for the interest and advantage of the said ward that the same shall be sold, mortgaged, leased, or let on groundrent;..." (Italics supplied)
The appellant, however, points to the Act of 1836, supra, where the powers and duties of a committee on lunacy are set forth and contends that the procedural requirements contained therein are applicable to a sale of real estate by a guardian when made under the Act of 1907. The pertinent provisions of the Act of 1836 are as follows: "Section 22.[50 PS 781] If the personal estate of such lunatic or habitual drunkard, shall not be sufficient for the purposes aforesaid, it shall be lawful for the Court ...