Appeal from decree of Court of Common Pleas, Orphans' Court Division, of Montgomery County, Docket No. 68625, in re estate of J. Walter Banes.
Jules Pearlstine, with him Larry J. Schwartz, and Pearlstine, Salkin, Hardiman, Robinson and Hunn, for appellant.
Philip D. Weiss, with him McTighe, Brown, Weiss, Bonner & Stewart, for appellee.
Joseph E. Lastowka, Jr., with him Kassab, Cherry and Archbold, for Shell Oil Company, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts.
J. Walter Banes died on October 25, 1962, leaving a will which was duly probated. The will designated decedent's wife, Inez Banes, appellee, as trustee-executrix. Thereafter, the first and final account was filed on November 1, 1967, and adjudicated on May 28, 1968.
Decedent's estate consisted primarily of a 22-acre tract of land located in Montgomery and Horsham Townships. In 1950, decedent and his first wife, Reba Banes, leased the property*fn1 to the 309 Drive-In Corporation.*fn2 The lease entitles the lessee to extend the terms of the lease until the year 2024. It further provides that "[i]n the event that the Lessors shall desire to sell the demised premises and to offer the said premises for sale, the Lessee shall have the first option to purchase the demised premises for the sum of Forty Thousand Dollars ($40,000)."
Decedent's will conveyed this tract of land -- as part of the residue -- to: ". . . my trustees hereinafter named, In Trust, to hold, invest and reinvest the same, to collect the income, and after paying all expenses incident to the management of the Trust, to pay the net income quarterly, or in other convenient installments, unto my wife, Inez M. Banes, as long as she shall live; and upon her death to pay the income annually on December Fifteenth to my surviving issue per stirpes, until twenty years following the death of the last surviving grandchild of mine who was living at the time of my death. Upon such termination, the principal of the Trust shall be divided per stirpes among my issue then living."
In March, 1970, Inez Banes, without court approval or notice to the interested parties (decedent's children and grandchildren), negotiated the sale of approximately 1 1/2 acres of the 22-acre tract of land in order to pay the estate's debts and administration expenses of $9,400. The trustee-executrix first obtained a release from the lessee as to the 1 1/2 acres and then sold the parcel to Shell Oil Company, appellee, for $110,000. Under the terms of the agreement the lessee received, after deduction for settlement expenses, 75% of the proceeds ($75,000), while the estate received 25% of the amount.*fn3
The instant action was commenced in June, 1970, when appellant, Robert Banes, decedent's son -- a named successor trustee and a remainder beneficiary -- filed a petition to set aside the conveyance and remove Inez Banes as trustee. Appellant urged in his petition that the decedent's will specifically prohibited the sale of the property. The ...