Paul E. C. Fike, Joseph N. Cascio, Fike & Cascio, Somerset, for appellant.
Frank S. Lucente, Somerset, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, Jj.
[ 175 Pa. Super. Page 175]
The factual background of this proceeding discloses a contest between Potter Lumber Company, a partnership composed of A. J. and Harold M. Potter, and Fayette Hardwood Lumber Company, to secure a valuable timber tract by purchase. The controversy revolves around the sale of the interests of six minor children.
John Vought, the owner of 330 acres of land in Black Township, Somerset County, died intestate on December 17, 1927. Title to the farm vested in his nine children. One of these children, Harry Vought, died intestate on May 9, 1948 survived by his widow Grace Vought, and nine children, six of whom are still minors. The Potters, after extended negotiations with the Vought heirs, offered $19,000 for all of the timber on the land measuring 14 inches in diameter and upwards, two feet from the ground. After consultation among the heirs the offer was orally accepted. But before a written agreement could be made available for execution, Fayette Hardwood Lumber Company, on hearing of the transaction offered to pay $24,000 for all of the timber seven inches or more across the stump, twelve inches above the ground. The testimony is that the 'prop timber' between seven and fourteen inches in diameter was worth $5,000. Accordingly the offer
[ 175 Pa. Super. Page 176]
in reality was on the same basis as the prior offer of $19,000. The Potters agreed to meet the offer of $24,000, for all of the timber on the changed specifications and two weeks later on May 20, 1952, a written agreement was prepared providing for the sale of all timber, seven inches in diameter one foot above ground to the Potter Lumber Company for $24,000. Eight of the Vought heirs, who were sui juris, signed the agreement and were joined in its execution by their respective spouses. Grace Vought signed in her interest as widow of Harry Vought, and the three adult children of Harry Vought with their spouses also signed the agreement. Grace Vought also executed the contract of sale as 'mother and natural guardian of the six minor children of Harry Vought.' All of the parties understood that approval by the Orphans' Court was necessary to the consummation of the sale of the minors' interests in the timber. The executed agreement was retained by the attorney representing the Voughts, and a check for the full amount of the purchase price was deposited by the Potters with their attorney to be paid on delivery of the agreement after court approval of the sale of the minors' interests. Upon signing the agreement Grace Vought as natural guardian of the above minor children also executed a petition addressed to the Orphans' Court praying for approval of the sale of their interests in accordance with the agreement of May 20, 1952 entered into on their behalf.
There is some vague reference in this record to a subsequent bid of $28,000 for the timber made by the Fayette Company, but only in the testimony of one of the Potters, and in the cross-examination of the Voughts' attorney. But there is no evidence of the specifications on which it was based, nor in fact that any bona fide offer at that figure was actually made by the Fayette Company. The alleged offer was not
[ 175 Pa. Super. Page 177]
a fact for consideration by the court when the petitions which raised the present controversy were before it for approval, and it is not a factor in this appeal.
About the time of its execution on May 20, 1952 the petition of the natural guardian of Harry Vought's minor children was presented to the court by the Voughts' attorney and the court after some discussion indicated, in the presence of Grace Vought that her joinder as guardian in the sale to the Potters would be authorized. The court however held the matter in abeyance. On June 2, 1952, Grace Vought again appeared in the Orphans' Court not with counsel who had previously represented her, but with the Fayette Company's counsel. That company had offered $5,400 for the entire undivided 1/9 interest of the Harry Vought heirs in the land including all timber but excepting coal and other mineral and mining rights. Grace Vought then stated to the court that she had changed her mind since she had petitioned the court for the sale of the minors' interest in the timber to the Potters, and that she then desired to accept the offer for her minor children's interests which was included in the $5,400 offered for the entire 1/9 interest of the Harry Vought heirs in the tract. The Orphans' Court recognized that a fiduciary may repudiate an agreement in the best interest of its ward and on that ground, by order entered on June 9, 1952, formally approved the second petition of Grace Vought as natural guardian of her minor children for the sale of their interest in the land to the Fayette Company. On the same ...