Dissenting Opinion by
Mr. Justice Roberts:I am unable to share the view of the majority that the Fiduciaries Act of 1949 mandates that a mortgage of intestate realty, executed by a sole heir in possession, accepted in good faith and duly recorded, is completely divested by a conveyance executed by a personal representative more than three years later.
I disagree also with the majority’s pronouncement that, under the instant circumstances, a purchaser four years after the death of the record owner was required only to search the title of decedent and that it was unnecessary to make such examination against the sole heir who had been in continuous possession of the premises.
For generations, prior to and since the early common law, the legal title to a decedent’s realty passed to heirs. It was only by statute very many years later that land became devisable by will. The clear and historical distinction between the administration of a decedent’s real and personal property has long been recognized and firmly established in this Commonwealth and remained without material change until the Fiduciaries Act of 1949. Prior to that Act, real property was not an asset under supervision of the personal representative, unless such control was granted either by will or by order of court.
The Fiduciaries Act of 1949 preserved and reaffirmed the basic and traditional differences in the passage of decedent’s real and personal property. That Act, by providing that “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 *422the personal representative by this act. . .” (§104), did effect certain stated changes in the administration of decedent’s realty. The “subject to” clause and the special rules for real property found in such sections of the Act as 501, 541, 545, 547, and 615, although directing that under specific statutory circumstances the real estate is brought under the control of the personal representative, reveal also the limitations upon such administration and reaffirm the traditional differences in the administration of decedent’s realty.
Section 501 withholds from the personal representative the right to “take possession of, administer and maintain real estate occupied by an heir or a devisee” unless directed to do so by the court. Similarly, §541 explicitly denies to the personal representative the right to sell real property specifically devised.
Thus, it seems clear that the statutorily designated changes in the administration of real estate did not go as far as some advocated or as the result reached by the majority seems to indicate. It is obvious, too, that all distinctions between the administration of real and personal property were not eliminated and that the assimilation of realty and personalty under the Act have not been mandated.
If it be deemed expedient or desirable to attach to the deed of a personal representative the kind and degree of marketability and finality which the majority advances, that result should be accomplished and announced by the legislature, not by court decision.1
The majority places great reliance on the last sentence of §501, “Nothing in this section shall affect the personal representative’s power to sell real estate occupied by an heir or a devisee.” The majority, however, fails to read that sentence in the context of the preceding language of the section, particularly the fol*423lowing: “A personal representative shall have the right to and shall take possession of, maintain and administer all the real and personal estate of the decedent, except real estate occupied by an heir or devisee. . . . The court may direct the personal representative to take possession of, administer and maintain real estate occupied by an heir or a devisee if this is necessary to protect the rights of claimants or other parties.” (Emphasis supplied.) The majority does not recognize the objectives of that and other related statutory provisions which impose restrictions upon the personal representative’s administration of realty.
The comment to §501 is revealing and helpful. The drafter’s advise that the section “is based on the premise that the personal representative except as stated [e.g., where the heir is in possession] should have the duty as well as the right to control real estate until it is sold or distributed by decree or until control is relinquished to the heir or devisee because it is not needed for administration. The theory of the drafters has been that the legal and equitable title to real estate passes to heirs or devisees as heretofore, but that real estate should be administered as personal property, with a few minor exceptions when the nature of real estate requires a different treatment. During administration the personal representative will have the same powers over real estate as he has over personal property except as the Act malees express provisions to the contrary.
“It is not contemplated that rents shall be collected by the personal representative from real estate occupied by an heir or devisee unless needed for payment of claims.” (Emphasis supplied.)
The comment is explicit and persuasive that despite the enlarged duties of the personal representative, the Act does not operate to disturb^ unnecessarily the possession of heirs or devisees as it existed at decedent’s *424death unless required for administration of the estate. The personal representative is authorized to deal with real property only if it serves an estate or administration purpose or is directed by order of court.
The majority fears that such a limitation on the power to sell realty “would lead to a determination of the validity of a sale effected by, or a lien created by, an ‘heir’ on the basis of whether there was a need for administration of the estate or whether the administration of the estate had been completed as a practical matter, an ad hoc method of determination which would be chaotic in its results.”
The concerns of the majority, in this respect, appear baseless for a number of readily apparent reasons. First, title examinations of real estate have always been, are now, and very likely will continue to be ad hoc determinations. Second, even under the majority’s view of the nature of title which passes by deed of a personal representative (to realty in possession of an heir or devisee and not required to satisfy claims), long established practice and the realities of such transfers require the purchaser to exercise many precautions. Among others, he must verify the authority of the personal representative, and ascertain whether the title of decedent is good, whether the property is subject to a lien or charge, whether it was specifically devised, whether debts and death taxes have been paid, whether the will prohibits sale, whether the personal representative has given bond, whether additional bond is required. For the title search to include the heir would entail little additional effort.
Finally, the majority overlooks the persuasive fact that approximately three out of four estates, including the instant one, are relatively small and do not warrant or require the expenditure for a formal and complete administration. In this simple estate, four years after decedent’s death, administration was not yet formally *425completed nor was there practical necessity for taking steps toward that end. Because obtaining letters is generally an ex parte proceeding, as is discharge of the surety on the administrator’s bond, the legal termination of the estate is largely within the power of the fiduciary. Thus, under the view of the majority, the personal representative has the authority to make conveyances four, five, ten or even more years after death until the letters are revoked or the personal representative is discharged. In effect, decedent’s realty is made less readily marketable than prior to 1949.
The factually undisputed record, created by stipulation, establishes that as of April 20, 1957, all debts, including inheritance taxes, had been paid, that the sole heir-administratrix was aware of no unfinished business, and that the surety on her bond was discharged and released. Substantially the same facts were, repeated of record almost three years later in the petition of the personal representative requesting that she be excused from filing additional security in connection with the proposed sale of the realty.
As already noted, the purchaser accepted the deed of the personal representative executed four years after decedent’s death to premises continuously occupied by the sole heir. It is significant that the sale which the personal representative consummated was not “under order of the orphans’ court” under §543 and did not “have the effect of a judicial sale.”
Certainly, there was sufficient notice under the described circumstances to alert the purchaser that more was required to protect his purchase than her deed unless he preferred to rely, as he apparently chose to do, on the grantor’s warranty contained in the deed. Had the purchaser searched the indices against the sole heir as ordinary prudence and this record suggest, that simple examination would have readily disclosed that she, as administratrix, was seeking to deal with the *426property in a manner other than for the benefit of the estate. It cannot be maintained that the purchaser diligently took the proper steps to protect his title to the land in question.
The majority attributes to the mortgagee negligence in advancing funds on the mortgage. If negligence be a properly applicable standard, it is submitted that the purchaser who made payment three years after the mortgage and under the circumstances here described is certainly not free of fault.
At decedent’s death, legal and equitable title vested in the heir. Her interest was capable of being transferred and passed to the mortgagee. The mortgagee’s lien, however, was subject to certain specified risks, e.g., the necessity of a sale to pay decedent’s debts or death taxes or the probate of a will devising the property. None of these hazards which might have adversely affected or divested the lien interest in the property came about. The lien was valid when it was created, and, as each of the possible hazards passed, the mortgage lien became more firmly established and less subject to divestment.
It seems, therefore, most unfair and unnecessary to conclude, as does the majority, that the lien of a validly created mortgage is divested not by a risk or hazard to which the mortgage was subject at the time it was created or by the need of the estate, but by an entirely unrelated circumstance — a transaction between the personal representative and a subsequent purchaser. The majority divests a properly acquired mortgage lien simply because a later purchaser failed to adequately protect himself from conduct of the personal representative having nothing whatever to do with the administration of decedent’s estate. Had the purchaser searched the title of the heir, this controversy would have been avoided. His cause of action is against his grantor, *427and Ms claim should not be satisfied in full out of the lienholder’s interest.2
To me, the statutory language is clear and directs that the powers granted the personal representative to deal with real estate in possession of the heir are limited and are to be exercised only when required for the proper administration of decedent’s estate.
1 dissent.
Mr. Chief Justice Bell and Mr. Justice Musmanno join in this dissenting opinion.For example, statutory amendment to §547 is suggested in the Fiduciary Review, p. 2 (December, 1963).
Since the majority brands the conduct of the personal representative as “grossly improper” and yet reaches a result which is entirely adverse to the lienholder, ought not this Court, within the means at its command, afford some relief to the injured parties? Should not this matter be certified to the orphans’ court, the tribunal which has exclusive control over the fiduciary, for an appraisal of her conduct and for possible surcharge, restitution or other appropriate action? Should not a personal representative who uses fiduciary authority to deceive the court which clothed her with that authority and to injure the innocent — as in this case — be required to answer in that court? In this way, the rights of the mortgagee, as well as of the purchaser, would be safeguarded, even though the majority here reverses the court below and decides this case against the lienholder.