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GEORGE MINNO v. JOHN RUBAL (01/23/89)

submitted: January 23, 1989.

GEORGE MINNO, DECEASED, BY PEOPLES BANK AND TRUST COMPANY, ASSIGNEE OF HELEN MINNO, LEGATEE, HEIR AND EXECUTRIX OF GEORGE MINNO ESTATE, APPELLANT,
v.
JOHN RUBAL, O/W JOHN M. RUBAL, AND CAROL RUBAL, AND R.J. SEPCO, INC., TERRE-TENANT, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Somerset County, No. 191 Judgment 1987.

COUNSEL

Gordon D. Reynolds, Somerset, for appellant.

William R. Carroll, Somerset, for appellees.

Wieand, McEwen and Cercone, JJ.

Author: Wieand

[ 384 Pa. Super. Page 553]

The issue in this appeal is whether the lien of a judgment, obtained against one of several devisees of real estate more than five years after the death of the testatrix and after the administrator c.t.a. had made distribution and had been released, is extinguished by the joinder of the administrator c.t.a. in a subsequent conveyance of the real estate by the devisees. The trial court held that the lien of the judgment had been extinguished, dismissed an action to revive the judgment, and held that the judgment could not constitute a lien against the undivided interest owned by the judgment debtor-devisee. We reverse.

Elizabeth Rubal, a widow, died testate on October 11, 1976. At the time of her death, she owned real estate, on which she operated a neighborhood grocery store, in Windber Borough, Somerset County. By her last will and testament, she devised and bequeathed her entire estate in equal shares to her four children: Robert, Paulette, Maryann, and John. Letters of administration c.t.a. were issued to Robert on January 3, 1977, and he posted the necessary bond on January 10, 1977. On March 3, 1977, the four children, individually, executed and delivered a mortgage on the real estate to the Citizens National Bank of Windber as security for a loan of fifty thousand ($50,000.00) dollars. On February 3, 1978, the devisees, in writing, acknowledged receipt of their distributive shares in the decedent's estate, waived their right to a formal accounting, and released the administrator c.t.a. Upon petition, the Orphans' Court of Somerset County entered an order releasing the surety on the bond which had been filed by the administrator c.t.a. The grocery store business continued to be operated thereafter by the children of the decedent.

By May, 1981, however, differences had arisen, and two of the children, Robert and Paulette, had commenced an action to partition the real estate. Then, on January 6,

[ 384 Pa. Super. Page 5541982]

, before partition had been effected, Citizens National Bank filed an action to foreclose the mortgage. On June 18, 1982, George Minno recovered a judgment against John Rubal and his wife, Carol. Minno died on May 7, 1983, and his wife, to whom his interest passed, assigned the judgment to Peoples Bank and Trust Company.

The sheriff's sale in the mortgage foreclosure action was repeatedly postponed to permit a private sale which, it was hoped, would realize funds sufficient to pay the claims of creditors. On August 30, 1984, the real estate was conveyed to R.J. Sepco, Inc. by deed executed by the four children and by Robert Rubal, administrator c.t.a. of the estate of Elizabeth Rubal, deceased. By agreement, all secured creditors and those entitled to a priority were paid in full from the proceeds, and general creditors were paid at the rate of approximately forty ($.40) cents on the dollar. The judgment which had been recovered by George Minno against John Rubal and his wife, however, was overlooked and remained unsatisfied.

On May 20, 1987, the assignee of the judgment, Peoples Bank and Trust Company, began proceedings to revive the judgment against John Rubal and his wife, Carol. Named as terre-tenant therein was R.J. Sepco, Inc. Preliminary objections were filed by the terre-tenant, and, on August 22, 1988, the court entered an order "that defendant Sepco's preliminary objection to Writ of Revival is sustained, the action to revive judgment is dismissed with prejudice as to defendant, R.J. Sepco, Inc., and the judgment and revival thereof shall not constitute a lien on the subject real estate . . . ." The trial court subsequently explained, in its opinion, that it believed the lien against John Rubal's interest had been extinguished by the sale of the real estate to R.J. Sepco, Inc.

Legal title to a decedent's real estate passes at death to his heirs or devisees, subject to powers granted to the personal representative by law or the decedent's will. 20 Pa.C.S. ยง 301(b). The provisions ...


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