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ESTATE FRANK H. ELLIS (03/18/75)

decided: March 18, 1975.

IN RE ESTATE OF FRANK H. ELLIS, III, DECEASED. APPEAL OF HENRY J. PRESTON, EXECUTOR


COUNSEL

James N. Robertson, Robertson & Bullen, Media, William H. Bender, Bender & Bender, Downingtown, for appellant.

Edward M. David, Saul, Ewing, Remick & Saul, Philadelphia, Samuel Evans Ewing, 3rd, Ewing & Ewing, West Chester, for appellee, Church Farm School.

J. Peter Williams, Drinker, Biddle & Reath, Philadelphia, for appellee, New Bolton Center of University of Pa.

Charles F. Mayer, Media, for appellee, one-third of heirs of Adele Ellis.

James W. Sutton, Jr., Asst. Atty. Gen., for appellee, Com. of Pa.

Jones, C. J., and Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Roberts, J., did not participate in the consideration or decision of this case. Manderino, J., concurs in the result.

Author: Jones

[ 460 Pa. Page 283]

OPINION OF THE COURT

The court below, on petition of the appellees, various beneficiaries of the Estate of Frank H. Ellis, III, surcharged appellant, Henry J. Preston, for breach of his fiduciary responsibilities while serving as executor for the estate. The appellant filed exceptions to the adjudication and those exceptions were denied. From that denial this appeal resulted.*fn1 We affirm.

The executor-appellant undertook to dispose of certain realty holdings of the estate. He planned to accomplish this liquidation by public auction. Before he had entered into a formal agreement with the auctioneer, a realtor approached the appellant and intimated that he had a purchaser available. Appellant informed the realtor that he fully intended to conclude an agreement for sale by auction unless, prior to that agreement, the realtor could

[ 460 Pa. Page 284]

    produce a purchaser willing to buy the entire tract at a specified price per acre. After this meeting, the realtor forwarded a registered letter to the appellant informing him that he, the realtor, had shown the property to the prospective purchaser, who remained interested.*fn2

The appellant did not respond to this letter and the property was sold at auction. The purchaser of the major portion of the property was the General Services Administration of Pennsylvania, presumably on behalf of the Bureau of Prisons, which had been the prospective purchaser mentioned by the realtor.*fn3 One year after the sale of the property and the payment of commissions to the auctioneer by the estate, the realtor was awarded, in an assumpsit action, a commission on the sale of the same property.*fn4 Counsel for the estate filed an appeal but later withdrew it with prejudice, and the estate satisfied the judgment. The appellant submitted his final account and ...


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