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WEIHERER v. WERLEY (06/24/66)

decided: June 24, 1966.

WEIHERER, APPELLANT,
v.
WERLEY



Appeal from decree of Court of Common Pleas of Berks County, No. 2923 Equity Docket, 1961, in case of Edna V. Weiherer v. Norman G. Werley and Stella M. Werley, his wife, and Norman G. Werley, individually.

COUNSEL

Frederick G. McGavin, with him Joseph E. DeSantis, Franklin E. Poore, III, and McGavin, DeSantis & Koch, for appellant.

Raymond C. Schlegel, with him Harry W. Speidel, Scott L. Huyett, and Balmer, Kershner, Mogel & Speidel, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 422 Pa. Page 20]

Appellant filed a complaint in equity, alleging, inter alia, that at appellees' request, she conveyed to them a certain parcel of real estate situate in Bern Township, Berks County, Pennsylvania, for an inadequate consideration; that at the time of this conveyance she did not have sufficient mental capacity to comprehend the true meaning of her act, and that while she was in this condition, she gave the appellee, Norman G. Werley, on August 15, 1960, a power of attorney, to enable him to handle appellant's affairs. On August 27, 1960, appellant alleges that while in this weakened condition, she executed an agreement to sell the aforesaid parcel of real estate for a consideration of $15,000. Her complaint prays that the deed be declared fraudulent and void; that appellees be directed to reconvey the aforementioned real estate to appellant, and that appellees be ordered to account for rents, proceeds, and any other increments received for the property, and to pay over to her the amount determined to be due. The complaint further prayed that Norman G. Werley be ordered to account to the appellant for any and all actions taken by him pursuant to the power of attorney given him on August 15, 1960, and revoked on December 14, 1960.

[ 422 Pa. Page 21]

Appellees filed an answer, denying that appellant lacked sufficient mental capacity to understand the nature and effect of a power of attorney and the agreement of sale for the aforementioned property; that the price paid for the property was inadequate, and that a requested accounting under the power of attorney granted to appellee had been refused, but, in effect, averring that such an accounting had been offered after certain documents were made available to the appellee, but that these documents were never delivered to the appellee.

The matter was tried before the chancellor on January 20, 1964, and on November 24, 1964, the chancellor filed his adjudication. Exceptions were filed by appellant on December 11, 1964, and argument was heard by the court en banc, which, by an opinion filed on January 6, 1965, dismissed appellant's exceptions and entered a final decree. This appeal followed.

The appellant and her deceased husband were the owners of the tract of land in question and had erected an automobile service station with adjoining dwelling quarters thereon. The appellant's husband died on August 13, 1960, and title to this real estate vested in his widow, Edna V. Weiherer. Two days after the death of her husband, appellant executed a general power of attorney, appointing Norman G. Werley, and at that time, executed her Will, in which the appellees were to receive the major portion of the specific bequests, including an opportunity to purchase the property in question for $20,000. These instruments were prepared by Carl F. Mogel, Esquire, who was both recommended and procured for appellant by appellees.

On August 27, 1960, appellant executed an agreement to sell the real estate in question to appellees for $15,000. Norman G. Werley's testimony reveals, however, that appellant offered to sell the real estate in question to him, asking $20,000 for it. He said: "Well

[ 422 Pa. Page 22]

    that is more than I want to pay for it", and let it go at that until a few days later. He further testified that he later answered her question as to what he would give for it by saying that: "Well with the moneys that I have invested in the gas station I feel as though I could not give more than $10,000 for it" and that appellant felt it was not quite enough. He further testified that prior to the sale, appellant and appellees sat down and talked it over, and that appellant said: "Let's meet halfway, I'll come down five and you go up five." An agreement of sale was prepared after these negotiations, and signed on August 27, 1960. At the ...


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