Orr's Estate

5 Pa. D. & C. 499, 1924 Pa. Dist. & Cnty. Dec. LEXIS 168

• Court: Pennsylvania Orphans' Court, Philadelphia County
• Decided: November 25, 1924
• Docket: No. 2633
• Status: Published

Opinion

Van Dusen, J.,

The master’s report states the case so well that we need not restate it here, and the cases cited by him justify his conclusion. Two of them require particular reference:

Hallowell’s Estate, 2 D. & C. 183, was a case where sales of real estate were set aside for the fault of the executor, acting under a power of sale in the will, in selling a number of properties in a lump at private sale without making proper effort to get an adequate price, and without any necessity of selling the properties to pay debts. There was no fault on the part of the purchaser, who had resold the properties, and made himself liable for performance thereof and for commissions on the resale. Fricke’s Estate, 16 Pa. Superior Ct. 38, was a decision setting aside a public sale by an executor under a power of sale in the will on the sole ground of inadequacy of price and upon bond being given to bid $500 more, there being no fault alleged on the part of the purchaser.

In Brittain’s Estate, 28 Pa. Superior Ct. 144, it was remarked that “even a bona fide sale may be set aside and a resale ordered when this is manifestly to the interest of the estate.” This remark was quoted by this court in Barndt’s Estate, 23 Dist. R. 226. It was there said also that interference on the ground of inadequacy of price alone should be exercised only in clear cases; but the sale was set aside upon giving bond to bid 10 per cent. more. In the present case the inadequacy of the price is established by the second sale at an advance of over 24 per cent., and as the above cases establish the duty of the court in such circumstances, the conclusion of the master was fully justified.

It is argued that the purchaser has a right to his contract, and that if he is without fault he should be protected therein. There is no evidence in this case of fault on the part of Deitrich or that Finney was Deitrich’s agent; but he was contracting with an executor, and must know that, under such circumstances, the contract may be re-examined for inadequacy of consideration. A sale under a testamentary power, while not primarily requiring confirmation by the Orphans’ Court, is subject to its supervision and control: Dundas’s Appeal, 64 Pa. 325; Brittain’s Estate, 28 Pa. Superior Ct. 144; but will only be set aside for adequate cause in clear cases.

In the present case there is no fault charged against the executor, but there was a lack of full disclosure on the part of Finney, whom he trusted, which is at least a make-weight against sustaining the sale. Finney was the agent of the testator in the management of these properties and gave the executor the appraisement which the decedent carried on his books. He was one of the appraisers of the personal estate appointed by the executor, communicated the testator’s appraisement to the executor and was the executor’s agent for the sale of these properties. He had an office in the neighborhood, and he testified that he expects to receive a commission on the sale (page 28). He should have told the executor that this appraisement was made in 1916, and that material changes had taken place in the neighborhood, and that the purchaser was his brother-in-law. That he was interested in the purchase does not sufficiently appear to warrant finding it as a fact. In this respect the case falls short of those cases in which equity has refused to enforce an unconscionable bargain and has left the party to his remedy at law. In such cases there should be present the element of fault on the part of the purchaser: see, fot example, Miller v. Fulmer, 25 Pa. Superior Ct. 106; Spotts v. Eisenhauer, 31 Pa. Superior Ct. 89; Mitchell v. Steinmetz, 97 Pa. 251.

The decisions first referred to were made on the objection of the parties in interest. In the present ease the petition for specific performance is resisted by the executor. So far as properly appears before us (see the disposition of the fifth and sixth exceptions below), the residuary legatees do not take part; and it is argued that it is not for the executor to deny his own sale, and that only the interested parties can be heard to object. We think it is the duty of the executor to take any step for the protection of the interested parties which he thinks right, and that upon being advised of the inadequacy of the price or of imposition upon him, he may refuse to carry out the sale.

Some objections are made to the second sale by the first purchaser. He, however, has no standing in this proceeding for any purpose but that of sustaining the sale to himself. If that is not done, he has no interest in what has become of the property or what the price is at which it is eventually sold.

We will deal with the exceptions of Frank Deitrich, Jr., in order:

The first exception is dismissed; there is testimony to support the finding of fact (page 58) and no testimony to the contrary.

The second exception is sustained so far as to find the fact as requested, in accordance with the recommendation of the master in his report on the exceptions. We think, however, with the master, that the fact so found is immaterial; as already stated, one purchaser has no standing to attack the other sale.

The third exception is sustained. We feel that the emphasis here is wrongly placed on the relation of Finney to Deitrich, and that it should have been placed on the relation of Finney to the executor. That relation required a disclosure by Finney, as stated above; but we are not to be taken as basing our conclusion on any agency of Finney for Deitrich, or any failure to disclose previous dealings between them, or that Finney pledged his own collateral to help Deitrich raise the money which he tendered to the executor. The latter event occurred subsequently. The references by the master to these facts go further than need be.

The fourth exception is dismissed.

The fifth and sixth exceptions relate to the action of the master in attaching to the record and relying in part on letters from counsel for the residuary legatees requesting approval of the sale to Leon Krauser rather than of the sale to Frank Deitrich, Jr. It was stated at bar by counsel for the exceptant that he had no knowledge of these letters until they appeared attached to the master’s report. The master’s report does not show that these counsel appeared at the hearings or that the letters were offered at the hearings. These exceptions are sustained. We will dispose of the case as though the attitude of the residuary legatees were not before us.

The seventh exception is dismissed.

The eighth, ninth and tenth exceptions relate to the master’s final conclusion and are dismissed for the reasons already given.

With the modifications indicated, the report of the master is confirmed and a decree will be entered in the form recommended by him, dismissing the petition of Frank Deitrich, Jr., and directing specific performance of the sale to Leon Krauser.