Joseph M. Ludwig, Ludwig, Elder & Achman, Andrew J. Achman, Pittsburgh, for defendants.
James H. Nugent, Pittsburgh, for plaintiff.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Spaeth, J., joins.
[ 243 Pa. Super. Page 456]
This is an appeal from the decree of the Court of Common Pleas of Allegheny County sitting as a court en banc in equity, dismissing the exceptions of the appellants, Flora C. Sophos, et al., and making final the decree nisi of the chancellor.
On May 23, 1951 the decedent, Harry C. Sophos, and one of the appellants, Flora C. Sophos, now Flora C. Towry, became owners of a certain piece of real estate known as 133 Faybern Court, Penn Hills Township, Allegheny County, Pennsylvania. The owners held the premises as joint tenants with the right of survivorship and not as tenants in common, so at that time each of the owners possessed an undivided one-half interest in the premises with the right of survivorship.
On July 14, 1973 the decedent, Flora C. Sophos (now Flora C. Towry) and R. Brody Towry, her husband, entered into a listing contract with a real estate agency for the sale of the property. A buyer was found and on November 12, 1973 the decedent executed an agreement of sale of the premises. Mrs. Towry and her husband did not execute the agreement because at the time they were in the State of Mississippi. However, on the following day she sent a telegram to the real estate agent indicating her approval of the sale.
On November 16, 1973 the decedent died suddenly. After his death Mrs. Towry and her present husband executed the sales agreement and went through with the sale. The executrix of the decedent's estate initiated an action in equity against Flora C. Towry, her husband and the purchaser of the realty.
[ 243 Pa. Super. Page 457]
The chancellor filed a decree nisi as follows:
"AND NOW, to-wit, this 24th day of December, 1974, it is hereby ORDERED, ADJUDGED and DECREED as follows:
"1. That one half of the proceeds from the sale of the subject property be paid to Paulette Yannopoulos, Executrix of the Estate of Harry C. Sophos and in order to effectuate this it is hereby decreed that the Prothonotary pay to the plaintiff the sum of money on deposit with him which represents a part of the purchase price plus any interest accrued thereon; and,
"2. That one half of the sum retained in escrow by Papernick and Gefsky, Esquires, be paid to the plaintiff upon proof of ...