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decided: December 21, 1979.


No. 211 March Term, 1978, Appeal from the Decree of the Court of Common Pleas, Orphans' Court Division of Allegheny County, Pennsylvania at No. 605 of 1976.


David F. Alpern, Alpern & Alpern, Pittsburgh, for appellants.

John E. Evans, Jr., Evans, Ivory & Evans, Pittsburgh, for Estate of Bonnie B. Cooperman, Deceased.

David J. Greenberg, Pittsburgh, for Estate of Jack Cooperman and Life Insurance Trust.

Stephen Israel, Pittsburgh, for Robert Halsband.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Per Curiam

[ 487 Pa. Page 149]


Appellants*fn1 seek to surcharge appellee Union National Bank of Pittsburgh, the executor of Jack S. Cooperman's estate, for selling stock owned by the estate at a price claimed to be less than adequate consideration. The Orphans' Court Division of the Allegheny County Court of Common Pleas rejected appellants' claim as meritless and refused to impose a surcharge. We agree, and affirm the decree.

[ 487 Pa. Page 150]

Decedent Cooperman, with his father-in-law and brother-in-law, each owned one-third of the stock in a corporation, B&C Playlands, Inc., principally engaged in the sale of novelty items and maintenance of arcade machines. The minutes of a corporate shareholder meeting, held June 1, 1974, govern the rights of surviving owners to purchase decedent's interest in the corporation. These minutes provide:

"In the event of the death of Jack Cooperman . . . his estate shall be paid 1/3 the market value of the corporate net worth."

Decedent died on December 8, 1975. Appellee filed its inventory of the estate on September 8, 1976. The estate's one-third interest in B&C Playlands, Inc. was valued at $2,576.33. No objection to the inventory was interposed. On September 24, 1976, appellee sold the estate's interest in the corporation to decedent's brother-in-law, a surviving owner, for this amount. Appellee filed its first accounting on March 28, 1977, and appellants' timely objection followed.

Appellants claim that appellee improperly sold decedent's stock at the inventory value. According to appellants, this value did not reflect the "market value" of the stock. We disagree. The facts found by the orphans' court demonstrate that there is no basis for concluding that appellee's sale of B&C Playlands, Inc. stock was improper. As the orphans' court stated:

"The evidence in this record does not establish a value of Jack's one-third which would support a surcharge of the executor in any amount. It is very difficult from this record to establish a fixed 'net worth' or 'market value' of the business at anytime pertinent to the issue involved in this case. . . ."*fn2

The orphans' court's findings of fact are supported by adequate and competent evidence, and are therefore controlling. McCrea Estate, 475 Pa. 383, 386-87, 380 A.2d 773, 775 (1977).

[ 487 Pa. Page 151]

An executor, when determining the value of an estate's assets, must exercise only "common skill, common prudence, and common caution . . . . [H]e is not liable when he acts in good faith as others [prudent men] do with their own property . . . [.]" Mereto Estate, 373 Pa. 466, 468, 96 A.2d 115, 116 (1953) (quoting cases). "[T]hose who seek to surcharge a fiduciary have the burden of establishing his wrongful conduct." Estate of Ellis, III, 460 Pa. 281, 285, 333 A.2d 728, 730 (1975) (citations omitted). We agree with the orphans' court that appellee acted with the requisite skill, prudence, and caution, and that thus there is no basis on which to surcharge appellee.

[ 487 Pa. Page 152]

The decree of the orphans' court is affirmed. Each party pays own costs.

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