Opinion by
Whilst it is true that “ Lands of a decedent are assets for the payment of his debts, and may be taken in execution and sold for this purpose, notwithstanding the fact that they have been sold by the heirs to bona fide purchasers: ” 4 P. & L. Dig. of Dec; 6330, it is also true that “ Rents of real estate accruing after decedent’s death are not assets for the payment of his debts, and it makes no difference that the rents are reserved to the lessor, his executors, administrators or assigns.”
. “The heir is not accountable either to the administrator or creditors of an intestate for the rents and profits of the real estate which accrue after the death of the ancestor, and an administrator who collects the rents and profits of the real estate of the intestate holds them as trustee for the heirs, and not for the creditors : ” 4 P. & L. Dig. of Dec. 6332 et seg.
The latter doctrine was early recognized in McCoy v. Scott, 2 Rawle, 222, in which it was said: “ Although lands in Pennsylvania are considered as chattels for the payment of debts, yet in the case of an intestacy the real estate goes to the heirs and the personal estate to the legal representatives. . . . When lands are wanted for the payment of debts, there is a mode pointed out by the act of assembly which the administrator is bound to pursue, for the real fund is not absolutely, but sub modo, assets in his hands. Until this proceeding takes place the administrator has nothing to do with the real estate.” It was also recognized in Morrison’s Estate, 196 Pa. 80, in which Mr. Justice Fell said : “ While in this state lands are assets for the payment of debts, they are not assets in the hands of an administrator, and without an order of the orphans’ court he has nothing to do with them. In case of intestacy they descend to the heirs, and if needed for the payment of debts there is a mode pointed out by the act of assembly which the administrator is bound to pursue, ‘ for the real fund is not absolutely, but sub modo, assets in his hands: ’ McCoy v. Scott, 2 Rawle, 222; Bakes v. Reese, 150 Pa. 44.”
To the same effect our Brother Porter said, in DeWitt v. *342Railroad Co., 21 Pa. Superior Ct. 10, although the direct question was not there involved : “ The heir takes the place of his ancestor, in regard to the land, subject to the liens which bind it, but not its profits. The heir is entitled to possession of the land and to receive its rents, issues and profits. The land is only pledged, sub modo,- for the payment of the debts of the deceased, and the legal title remains in the heir until divested in the manner provided by law. If the administrator collect the rents, he must, in the absence of an agreement, account to the heir.”
It follows, therefore, that the administrator had no more. right to release the tenant, who held under a lease from the heirs, from his contract to pay the rent than he had to collect what was due thereunder. It is alleged by the appellee that the administrator undertook to do this for the benefit of the creditors, for the. reason that the real estate, for the sale of which he had procured an order of sale from the orphans’ court, would not sell advantageously unless possession could be given before the lease expired. It is clear that he could not do this at the expense of the heirs, and if not, then the assignment by the heirs to Meany, the defendant in the replevin, who purchased the real estate at the administrator’s sale, was good, and if so, he was entitled to distrain the property left upon the premises by the plaintiff in the replevin, who was the tenant of the heirs, for the rent then due. This being so, the defendant’s first point, the refusal to answer which constitutes the first assignment of error, should have been affirmed and a verdict directed for the defendant.
No,wrong was done the tenant. By the terms of the lease with the heirs he had covenanted that he would “ remove from and give peaceful possession of the premises hereby leased within ninety days after he shall have received from the lessors notice to vacate the premises, without any redress at law.” The sale was made by the administrator July 14, 1903. He removed from the premises November 2, 1903. The sale was of itself a sufficient notice that the lease should be surrendered, and more than ninety days elapsed between the date of the sale and his removal.
The real question involved was not whether the administrator and the plaintiff here agreed as to the time when the plaintiff *343should surrender possession, but whether the administrator had a right to make such an agreement with him. We are clearly of the opinion, under the authorities, that he had no such right, but, on the other hand, that the assignment by the heirs to Meany, the purchaser at the administrator’s sale and the defendant in the replevin, was valid and the claim for the rents, as made by him under the assignment, was good.
The 'answers to the other points submitted by the defendant, in this view of the case, become practically irrelevant.
We are of the opinion that a verdict should have been directed for the defendant, as there was no dispute as to the essential facts upon which the defendant’s right to the rents due the heirs rested. This disposes of the entire case.
Judgment reversed.