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WERTMAN ESTATE. APPEAL LILLIAN H. WERLEY (07/07/75)

SUPREME COURT OF PENNSYLVANIA


decided: July 7, 1975.

IN RE WERTMAN ESTATE. APPEAL OF LILLIAN H. WERLEY

COUNSEL

Edward N. Cahn, Thomas F. Traud, Jr., Allentown, for appellant.

Thomas E. Weaver, Jr., Weaver, Weaver & Weaver, Catasauqua, for appellees, John J. Trexler and Blanche I. Trexler.

Jones, Chief Justice, and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Jones

[ 462 Pa. Page 196]

OPINION OF THE COURT

Ida Wertman died testate on October 3, 1965. By her duly probated will, she specifically devised to the appellant, her daughter, the realty which concerns us here.

[ 462 Pa. Page 197]

The appellees, as optionees, petitioned the Orphans' Court for the specific performance of an option to purchase the property*fn1 which the testatrix had allegedly entered into several years earlier. The option agreement was dated January 17, 1957, eight and one-half years before the testatrix's death and seven years before the execution of the will which devised the realty to appellant.

After a hearing the chancellor entered a decree nisi granting the petitioned relief. The decree was made final after appellant's exceptions were filed and denied. This appeal followed.

Appellant first challenges the determination of the genuineness of the testatrix's signature on the option agreement. Although the circumstances surrounding the execution of the option agreement were somewhat unusual*fn2 and although appellant presented expert testimony contrary to the chancellor's finding, there was direct, eyewitness evidence presented by the appellees which would justify the chancellor's determination. It is wellsettled that any finding supported by evidence of record is entitled to the same weight given a jury verdict, and the finding must be sustained unless the court abused its discretion or committed an error of law. See, e. g., Button Estate, 459 Pa. 234, 328 A.2d 480 (1974); Smith Estate, 454 Pa. 534, 314 A.2d 21 (1974); Masciantonio Estate, 392 Pa. 362, 141 A.2d 362 (1958).

Here, Robert Doll, Esquire, a member of the Lehigh County Bar, testified as a witness for the appellees. He stated that he had witnessed the signing by three of

[ 462 Pa. Page 198]

    the four parties to the option agreement, the only exception being one of the optionees. That testimony, if believed, as it obviously was, sufficiently supports the chancellor's finding that the signature of the testatrix was genuine.

The second issue presented by the appellant also concerns the testimony of Attorney Doll. The appellees were represented before the chancellor by a law partner of Mr. Doll. Disciplinary Rule 5-102 provides that representation of a client should cease when it becomes obvious that a lawyer in his firm will be called as a witness.*fn3 Appellant contends that the violation of this Rule should preclude the consideration of Attorney Doll's testimony as substantive evidence. However, we need not consider the merits of this contention as no objection to Mr. Doll's testimony was made by the appellant at the hearing. She failed, therefore, to properly preserve the issue for appellate review. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).*fn4

We reaffirm the condemnation expressed in Kraynick.

Appellant asserts in her final argument that the extraordinary remedy of specific performance should not have been granted due to the unusual facts in this case. Section 3390 of the Probate, Estate and Fiduciaries Code of 1972, 20 Pa. S. ยง 3390 (which re-enacted and renumbered Section 620 of the Fiduciaries Act of 1949, P.L. 512), permits a court in its discretion to order the specific

[ 462 Pa. Page 199]

    performance of a legally binding agreement for the sale of property. Having once concluded the agreement to be genuine, the Orphans' Court could properly mandate the specific performance of the option agreement. Cf. Brown Estate, 446 Pa. 401, 289 A.2d 77 (1972); Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444 (1968); Payne v. Clark, 409 Pa. 557, 187 A.2d 769 (1963).

Decree affirmed. Costs on appellant.


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