No. 18 March Term 1979, Appeal from the Decree of the Court of Common Pleas of Beaver County, Orphans' Court Division, at No. 4-75-295 Overruling Exceptions to Decree of Distribution
John J. Petrush, McClain, Petrush, Young & Miller, Beaver Falls, for appellant.
Charles W. Garbett, Ellwood City, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
The will of Lloyd S. Bennett, deceased, was offered for probate before the Register of Wills of Beaver County on May 28, 1975, and letters testamentary issued to the executor named in the will, appellee Equibank, N.A. (Equibank) on June 3, 1975. On May 5, 1977, Equibank filed its first and final account. Appellant, Bob Garvin Agency, Inc. (Garvin), filed a timely objection to the account based on a claim the estate owed it the sum of $12,900.00 commission for procuring a purchaser for certain real property of the estate. Garvin and Equibank presented the case to the Orphans' Court of Beaver County on written stipulations and briefs at an audit hearing on August 9, 1977, and, on January 9, 1978, the court entered an adjudication and decree nisi overruling Garvin's objection and ordering distribution. Garvin filed exceptions to this adjudication which were overruled. From the final decree of the court, this appeal followed.
The relationship between Equibank and Garvin was initiated by a letter dated December 22, 1975, from an Equibank trust officer to Garvin, requesting the agency to list for sale two properties in the Bennett Estate, 596-98 Third Avenue and 538 Third Avenue in Beaver. The letter specifically stated "[w]e cannot for obvious reasons give you an exclusive" and solicited offers "so that we can discuss same with the heirs." Asking prices of $129,000.00 for the 596-98 Third Avenue property and $39,000.00 for the 538 Third Avenue property were set forth, for a total of $168,000.00.
On January 9, 1976, Garvin submitted to Equibank an agreement for the sale of the real estate signed by a potential purchaser, Kathary, offering $142,000.00 for the two properties and a check for $5,000.00 handmoney. The agreement contained two special clauses, which made the agreement contingent upon the ability of Kathary to obtain mortgage financing and to obtain a commitment from the lessee of one of the properties to extend its lease at an increased rent. The mortgage contingency further provided that, should Kathary be unable to obtain financing by a certain date, the agreement would be null and void and the handmoney returned.*fn1 Equibank informed Garvin by letter the offer was not acceptable to the heirs and suggested if Kathary was interested in making an offer closer to the asking prices, Garvin should forward new agreements to be submitted to the heirs.*fn2
On February 2, 1976, Garvin submitted a new offer in which Kathary agreed to meet the asking price of $129,000.00 for the 596-98 Third Avenue property, but since he
was not predominantly interested in the 538 Third Avenue property, his combined offer for the two properties was $150,000.00. The proffered agreement for the sale of real estate contained special clauses substantially identical to those in the first agreement.*fn3 Equibank returned the agreement to Garvin explaining the offers had been submitted to the attorney for the heirs, but "at the present time, we are not interested in taking any offers until the market has been ...