Appeal, No. 193, March T., 1963, from judgment of Court to Common Pleas of Erie County, May T., 1962, No. 256, in case of Albert Di Loretto v. Marsidell, Inc. Judgment affirmed.
Robert L. Walker, with him James P. Bryan, and Bryan, Joslin, Bryan & Sesler, for appellant.
Lawrence A. D'Ambrosio, with him Clifford H. Kahn, and Kahn, D'Ambrosio & Fischer, for appellee.
Before Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE JONES
Cora Harvey Goodrich (decedent), died April 22, 1952 owning a thirty-five acre tract of land in Conneaut Township, Erie County. At the time of her death the Department of Public Assistance of the Commonwealth (DPA), had a lien against this realty which lien, at all times pertinent to this appeal, remained in full force and effect. Decedent's sole survivor was her husband, Adolphus Goodrich (Goodrich).
On October 10, 1957, Goodrich, as sole devisee of this land, granted an oil and gas lease*fn1 therein to one Albert Di Loretto (Di Loretto). At that time, decedent's will, under which Goodrich was named both personal representative and sole devisee of this land, had not been probated nor had any letters been issued. Approximately four years later, decedent's will was probated, letters issued and the estate settled as a small estate, under § 202 of the Fiduciaries Act of 1949.*fn2 Goodrich, as decedent's personal representative, was authorized by the Orphans' Court of Erie County to sell the land to one Sidney Stone (Stone), for $2000 and, on August 17, 1961, the deed to Stone was executed and later recorded. On the same date, Stone leased*fn3 the oil and gas rights in the land to Marsidell, Inc. (Marsidell), and Marsidell went upon the land and discovered gas.
Di Loretto, in reliance on the 1957 lease, then instituted@ an ejectment action in the Court of Common Pleas of Erie County against Marsidell. Thereafter,
the parties, jointly and upon an agreed statement of facts, petitioned for a declaratory judgment seeking a declaration whether the 1957 lease had been divested by the sale of the land by Goodrich, as personal representative, to Stone. The court below, declaring that Di Loretto's rights in the land acquired under the 1957 lease had not been divested by the sale, entered judgment for Di Loretto and against Marsidell. From that judgment this appeal was taken.
Di Loretto takes the position that, by virtue of the 1957 lease, he acquired a corporeal interest in the land*fn4 which was not divested under the provisions of § 547 of the Fiduciaries Act of 1949 (20 P.S. § 320.547) (the Act); that Goodrich, as personal representative, could not convey to Stone an interest in the land greater than the estate had at that time, i.e., a fee encumbered by the rights granted in the 1957 lease; that the late probate of the will did not alter the situation. Marsidell took the position that, under § 104 of the Fiduciaries Act of 1949 (20 P.S. § 320.104), Goodrich, as sole devisee of the land, received legal title to the land but that such title was subject to the power and the authority of the personal representative to deal with the realty under §§ 541, 543 and 547 of the Fiduciaries Act of 1949 (20 P.S. §§ 320.541, 543, 547) and that any rights acquired by Di Loretto under the 1957 lease were divested by the Goodrich-Stone sale.
We have recently reviewed certain sections of the Act somewhat pertinent to the case at bar: Quality Lumber & Millwork Co. v. Andrus, 414 Pa. 411, 200 A.2d 754. In Quality, we noted that: (1) while legal title to realty passes at death to the decedent's heirs or devisees, such passage of ...