Appeal from decree of Court of Common Pleas of Montgomery County, No. 70,083, in re estate of Clayton L. Brown, Jr., deceased; appeal of Robert C. Brown.
Russell E. Ellis, with him Anthony L. Differ, and Fox, Differ, Mazer & Callahan, for appellant.
Otis W. Erisman, with him Truscott and Erisman, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
This is an appeal from a decree of the Montgomery County Common Pleas Court, Orphans' Court Division, which denied the claim of appellant Robert C. Brown for specific performance of a "buy-sell" agreement between himself and decedent Clayton L. Brown, Jr. The agreement provided that the survivor of the two would have the option to purchase all of the shares of the other in Clayton L. Brown, Inc., for $1.00 per share.
Two questions are presented for our decision. First, is the decree of the orphans' court division a "final order" within the meaning of Section 202 of the Appellate Court Jurisdiction Act of 1970*fn1 and thus a proper subject of our appellate jurisdiction under that section. And second, is appellant entitled to specific performance of his "buy-sell" agreement with decedent.
We believe that the orphans' court's decree is such a "final order" and that appellant is entitled to specific performance of his "buy-sell" agreement. Accordingly, we vacate the decree of the orphans' court in so far as it denied appellant specific performance of the agreement, and remand for entry of an appropriate decree directing the executrix to transfer decedent's stock in Clayton L. Brown, Inc., to appellant in accordance with the agreement.
The facts which give rise to this appeal are as follows: Appellant and decedent were brothers. They worked together in the real estate and insurance businesses initially as employees of their father Clayton L. Brown, Sr. In 1960 the family business was incorporated as Clayton L. Brown, Inc., and decedent and appellant became stockholders with their father. In March of 1965 their father died, and the two brothers, pursuant to a shareholders' agreement then in effect, each exercised his option to acquire 69 shares of their father's stock at a price of $1.00 per share. With these acquisitions appellant and decedent became the sole shareholders of Clayton L. Brown, Inc., each holding 185 shares.
On September 25, 1965, appellant and decedent entered into a written contract whereby it was agreed that the survivor would have the option to purchase all of the shares of the other in Clayton L. Brown, Inc., at a price of $1.00 per share. The two brothers also agreed that in the event that either desired to sell his stock before his death, the other would have the right to purchase the shares for $1.00 per share. It was further agreed that a legend noting these restrictions would be affixed to the stock certificates. In his will executed in July of 1966, the decedent Clayton L. Brown, Jr., directed that in the event that the agreement of September 25, 1965, was found invalid, his
shares in Clayton L. Brown, Inc., should pass to appellant.
Decedent died March 26, 1968. His will, duly admitted to probate, named his wife Elizabeth W. Brown as executrix. In addition to the conditional bequest of shares to his brother described above, the only dispositive provision in decedent's will was a residuary clause devising the residue of his estate to his wife.
On March 13, 1968, decedent's wife filed her election to take against decedent's will. Since decedent died without issue, his wife by virtue of her election is entitled to one-half of decedent's real and personal estate according to Section 8 of the Wills Act,*fn2 and to one-half of all conveyances by decedent which fall within Section 11 of the Estates Act.*fn3
On September 19, 1969, appellant filed his "Petition To Show Cause Why Executrix Should Not Turn Over Stock In Accord With Shareholders' Agreement." Shortly thereafter executrix filed her First and Partial Account. In November of 1970, the orphans' court held a hearing at which time evidence was presented relating ...