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QUALITY LUMBER & MILLWORK COMPANY v. ANDRUS ET AL. (06/13/63)

June 13, 1963

QUALITY LUMBER & MILLWORK COMPANY
v.
ANDRUS ET AL., APPELLANTS.



Appeal, No. 16, April T., 1963, from order of Court of Common Pleas of Cambria County, June T., 1962, C.D. No. 241, in case of Quality Lumber & Millwork Company v. Mary E. Andrus et al. Order reversed.

COUNSEL

Earl F. Glock, for appellants.

Robert S. Glass, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 201 Pa. Super. Page 190]

OPINION BY WRIGHT, J.

On March 26, 1962, Quality Lumber & Millwork Company, referred to hereinafter as Quality, entered judgment against Mary E. Andrus on a bond secured by a mortgage covering premises at No. 118 Morrell Place in the City of Johnstown. An execution was issued on this judgment naming Frank Zupancic and Amelia Zupancic, his wife, as terre tenants. The Zupancics applied to the Court of Common Pleas of Cambria County for a rule to show cause why the execution should not be stayed and set aside, and the lien of the judgment released as to the premises in question. From

[ 201 Pa. Super. Page 191]

    an order of the court below discharging this rule, the Zupancics have appealed. The facts are not in dispute and may be summarized as follows:

No. 118 Morrell Place was owned by Marie Sedlemeyer who occupied it together with her daughter, Mary E. Andrus. Mrs. Sedlemeyer died intestate on April 4, 1956, leaving Mrs. Andrus to survive her as sole heir. At the time of Mrs. Sedlemeyer's death, there were no liens against the premises. On April 20, 1956, letters of administration were granted to Mrs. Andrus by the Orphans' Court of Cambria County. Mrs. Andrus filed a bond with surety in amount of $5,500.00, and properly advertised the issuance of the letters of administration. An inventory and appraisement was filed by Mrs. Andrus listing the premises at a value of $5,500.00 as the sole asset of the estate. The inheritance tax has been paid. Mrs. Andrus continued to occupy the premises after her mother's death. On December 15, 1956, together with her husband (now deceased) Mrs. Andrus executed a $5,200.00 mortgage on the premises in favor of Quality. On April 25, 1957, upon petition of Mrs. Andrus, the Orphans' Court discharged and released the surety on her bond. On March 26, 1960, Mrs. Andrus as administratrix presented a petition alleging that she had accepted an offer of $6,950.00 for the premises, and requesting that she be excused from entering additional security. A decree was entered by the Orphans' Court to that effect. On March 30, 1960, Mrs. Andrus executed a deed as administratrix conveying the property to the Zupancics. Mrs. Andrus has not been discharged as administratrix. She has filed no account and there has been no adjudication or decree awarding distribution.

The controversy arises because of the improper conduct of a daughter who was both sole heir and administratrix. No question of jurisdiction has been raised, either of the Court of Common Pleas or of the Superior

[ 201 Pa. Super. Page 192]

Court. The issue involved is whether the deed of the administratrix conveys title to the decedent's real estate free of a mortgage lien against the decedent's heir made and recorded within one year after the death of the decedent and during the period of administration.*fn1 The answer to this question involves an analysis of the plan for administration of decedent's real estate under the Fiduciaries Act of April 18, 1949, P.L. 512, 20 P.S. 320.101 et seq. This matter would normally be dealt with in the ...


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