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May 27, 1964


Appeal, No. 23, March T., 1964, from order of Superior Court, April T., 1963, No. 16, reversing 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, Frank Zupancic and Amelia Zupancic. Order affirmed.


Robert S. Glass, for appellant.

Earl F. Glock, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 414 Pa. Page 412]


This appeal presents an important issue: whether the deed of the personal representative of a decedent, who died intestate, conveyed title to the decedent's realty to bona fide grantees free and clear of the lien of a prior mortgage against such realty, the mortgage

[ 414 Pa. Page 413]

    having been executed by the decedent's sole heir*fn1 and recorded within one year subsequent to decedent's death and while letters of administration were still in effect.

Marie Sedlemeyer (decedent), died, intestate, on April 4, 1956, leaving as her sole heir, Marie Andrus, her daughter. Decedent owned certain improved realty in Johnstown wherein, with Mr. and Mrs. Andrus, she resided and wherein Andruses continued to reside after decedent's death. This realty, at the time of decedent's death, was lien free.

Several weeks after decedent's death, Mrs. Andrus qualified as personal representative of decedent's estate of which the realty was the sole asset. Approximately eight months later - December 15, 1956 - Mrs. Andrus, in the capacity of decedent's heir, joined by her husband, executed a bond and mortgage - the latter in the amount of $5200*fn2 - in favor of Quality Lumber & Millwork Co. (Quality), a partnership. This mortgage, ostensibly secured by decedent's realty, was recorded on January 7, 1957. At the time this mortgage was executed, Mrs. Andrus was still acting as personal representative of the estate, but she did not execute this mortgage in that capacity.

On April 25, 1957, Mrs. Andrus secured from the Orphans' Court of Cambria County a discharge and release of the surety bond, posted by her at the time she secured letters of administration, averring that the realty remained unsold, that all estate debts, including inheritance tax, had been paid, that she was the sole heir and that she knew of no unfinished estate business.

[ 414 Pa. Page 414]

On March 30, 1960, by deed recorded March 31, 1960, Mrs. Andrus, in her capacity as personal representative of the estate, sold decedent's realty for $6950 to Frank and Amelia Zupancic (Zupancics). Prior to such sale and pursuant to § 541 of the Fiduciaries Act of 1949 (Act),*fn3 Mrs. Andrus requested and secured from the Orphans' Court of Cambria County an order excusing her from furnishing additional security in connection with the sale of the realty to the Zupancics.

Two years after the sale to Zupancics, Quality, the Andruses' mortgage being then in default, issued execution upon the bond which accompanied the mortgage. Zupancics then petitioned the Court of Common Pleas of Cambria County to stay and set aside the execution upon the ground that Quality's mortgage lien was invalid. Upon answer and certain stipulated facts, the court dismissed Zupancics' petition, holding that Quality's mortgage was a valid encumbrance. The Superior Court unanimously reversed (201 Pa. Superior Ct. 189, 191 A.2d 685), and we granted allocatur.

Resolution of the question raised on this appeal involves a construction of several sections of the Fiduciaries Act of 1949.

Section 104 of the Act (20 P.S. § 320.104) provides: "Legal title to all real estate of a decedent shall pass at his death to his heirs or devisees, subject, however, to all the powers granted to the personal representative by this act and lawfully by the will and to all orders of the court." (Emphasis supplied). Section 104 - embracive by its provisions of all realty of a decedent, i.e., regardless of whether the heir or devisee was or was not in possession - was drafted upon the theory that "... the legal and equitable title to real estate passes to heirs or devisees [as such title had passed under the law prior to the Act]" with the proviso, however,

[ 414 Pa. Page 415]

    that, during the period of administration of the estate, "... the personal representative will have the same powers over real estate as he has over personal property except as the Act makes express provisions to the contrary."*fn4 Thus, upon the death of the decedent, Mrs. Andrus acquired legal title to this realty in her capacity of sole heir, but such title was expressly subjected to those powers statutorily granted to her in her capacity of personal representative.*fn5

Our next inquiry is to ascertain the powers of the personal representative to which an heir's legal title to realty is subjected under Section 104.*fn6 Section 541 of the Act (20 P.S. § 320.541), as presently pertinent, provides: "... the personal representative may sell, at public or private sale, ... any real property not specifically devised. When the personal representative has been required to give bond, no proceeds of real estate shall be paid to him until the court has made an order excusing him from entering additional security or requiring additional security, and, in the latter event, only after he has entered the additional security." (Emphasis supplied). It will be noted that such power of sale is not limited by any requirement that the sale purpose be for payment of debts or expenses. Section 541 explicitly empowered and authorized Mrs. Andrus, as personal representative, to sell the decedent's realty and, prior to the sale of such realty and in compliance with § 541, she was excused by the orphans' court from furnishing additional security.

[ 414 Pa. Page 416]

Section 547 of the Act (20 P.S. § 320.547) prescribes the quantum and quality of the title which a personal representative conveys when such personal representative exercises the powers granted under § 541, supra. Section 547, as presently pertinent, provides: "If the personal representative has given such bond, if any, as shall be required in accordance with this act, any sale ... by [the personal representative], whether pursuant to a decree or to the exercise ... of a power under this act, shall pass the full title of the decedent [in the realty], unless otherwise specified, discharged from the lien of legacies, from liability for all debts and obligations of the decedent, from all liabilities incident to the administration of the decedent's estate, and from all claims of distributees and of persons claiming in their right, except that only a sale under section 543 shall divest liens of record at the time of the decedent's death.*fn7 Persons dealing with the personal representative shall have no obligation to see to the proper application of the cash or other assets given in exchange for the ...

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