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DENLINGER ESTATE (11/30/72)

decided: November 30, 1972.

DENLINGER ESTATE


Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Lancaster County, No. 150 of 1968, in re estate of Ida B. Denlinger, deceased.

COUNSEL

Daniel H. Shertzer, for appellants.

Edgar R. Barnes, Jr., with him Arnold, Bricker, Beyer & Barnes, for appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones.

Author: Jones

[ 449 Pa. Page 394]

This is an appeal from a decree of the Orphans' Court Division of the Court of Common Pleas of Lancaster County in which a request for a surcharge against the executor of decedent's estate was denied.

Ida B. Denlinger (decedent) died testate on February 2, 1968, naming Clayton Denlinger (appellee), her son, executor of her estate. At the time of her death, decedent owned and occupied a property in the City of Lancaster that was without water and sewage facilities, curbs and sidewalks. The property was appraised at $7,500 on March 12, 1968, and offered at public sale on April 6, 1968. The appellee rejected the highest bid of $6,600, having considered the appraisal, the feelings of other beneficiaries and suggestions of realtors at the sale.

The appellee thereafter made various efforts to sell the property, including listing the property for sale with two separate realtors and personally contacting prospective buyers. In May of 1968 a sales agreement for $8,000 was signed. The sale, however, was not consummated because the buyer was unable to secure a Federal Housing Administration approved mortgage.

On May 15, 1969, the property was cited for violations of a housing ordinance enacted after appellee's appointment as executor and, as a result, was designated "unfit for human habitation." Violations such as lack of water and sewage existed at decedent's death, whereas violations such as broken windowpanes and broken window sashes did not exist at her death. The

[ 449 Pa. Page 395]

    property was vandalized from time to time after decedent's death and prior to the ultimate sale.

A second public sale held some time prior to August 15, 1969, attracted no bidders. The appellee continued to attempt to sell the property during the fall and winter of 1969-1970. He rejected an offer of $300 during this period. However, on August 18, 1970, he sold the property for $500.

The lower court held, and the appellants concede, that the appellee could not be surcharged for rejecting the $6,600 bid. The court below properly relied on Nemon's Estate, 301 Pa. 425, 429, 152 Atl. 555, 556-57 (1930), where this Court, in denying a surcharge where a hotel for which an offer of $18,000 had been made was subsequently sold for $4,400, stated: "In Semple's Appeal, 189 Pa. 385, 390, quoting Neff's Appeal, 57 Pa. 91, this court said, 'executors, administrators or guardians are not liable beyond what they actually receive unless in case of gross negligence, for when they act as others do with their own goods, in good faith, and they are not guilty of gross negligence, they are not liable,' and in Waddell's Estate, 196 Pa. 294, 300, we said 'not a single authority is cited, not one can be found which imposes such a penalty as this surcharge, for mere error of judgment.' Many other decisions of this court to the same effect might be cited. Here the testimony shows ...


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