Appeals, Nos. 214, 215 and 216, Jan. T., 1951, from decree of Orphans' Court of Luzerne County, 1950, No 46, in Estate of Peter Minichello, deceased. Case remanded with directions.
Arthur H. James, with him Thomas F. Burke, for appellants.
Ben R. Jones, Jr., with him Albert B. Carrozza, Nathan Hyman, Ellis Berger and Henry Thalenfeld, for appellees.
Before Drew, C.j. Stern, Stearne, Jones, Bell, Ladner and Chidsey JJ.
OPINION BY MR. Justice Chidsey
Appellants, Anna Recupero, Anthony J. Minichello, Jr., and Palma Franco, legatees named in the will of Peter Minichello, deceased, petitioned the Orphans, Court of Luzerne County to enjoin the executor, The Liberty National Bank of Pittston, from selling their distributive portions of 25 shares of capital stock of the Old Forge Coal Company which constituted a portion of decedent's estate. A citation issued, an answer was filed by the executor and by decedent's widow who was allowed to intervene. On June 20, 1951, after hearing, the lower court dismissed the petition. From the overruling of exception to the court's order this appeal was taken.
The following facts appearing in the pleadings were admitted at oral argument: Peter Minichello died December 26, 1949, survived by his wife, Jennie and no children. His will named The Liberty National Bank of Pittston executor and as trustee of the estate to pay to the widow $400 per month and to Charles Minichello $100 per month. Upon the death of these annuitants, the estate was to be distributed amongst testator's brother and sisters, Anna Recupero, Palma Franco, Anthony J. Minichello, Jr. (the appellants herein) and Louis Minichello. Charles Minichello predeceased the testator and Jennie Minichello, the widow, elected to take against the will so that the trusts created thereby, failed.
The 25 shares of stock of the Old Forge Coal Company left by the decedent comprised 25% of the total capital stock of the corporation. The balance of the shares are held as follows: Jennie Minichello, the widow, 25 shares; Albert Minichello, decedent's brother, 25 shares; Many Minichello, Albert's wife, 25 shares. Neither Albert Minichello nor Mary Minichello are beneficiaries under the will.
Upon filing of her election on January 30, 1950, Jennie Minichello became entitled to a one-half undivided interest in the estate. About a year later, January 26, 1951, the widow requested the executor, inter alia, to sell all of the Old Forge Coal Company stock. Louis Minichello, one of the residuary legatees, made a similar request, but on the other hand the appellants, Anna Recupero, Anthony J. Minichello, Jr. and Palma Franco, requested the bank for distribution to them in kind of their respective shares of the stock. The executor notified all of the parties in interest that unless they consented in writing to a sale of the 25 shares of Old Forge Coal Company stock, with bidding limited to the parties in interest, they would be offered at public sale on May 11, 1951. Following the receipt of this notice, appellants filed the petition to enjoin.
The record in this case leaves much to be desired. As appears, the matter arose on petition praying for an order to restrain an executor from selling certain stock of a closely held corporation which some of the distributees desired to have distributed in kind and prayed for such distribution upon audit of an account to be filed. The learned court below properly granted a temporary restraining order pending the disposition of the petition. The answers filed set up principally that it was the duty of ...