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ESTATE MARIA CARMELLA BOSICO (03/20/80)

decided: March 20, 1980.

IN THE ESTATE OF MARIA CARMELLA BOSICO, DECEASED. APPEAL OF THERESA A. PAYNE


No. 587 JANUARY TERM, 1977, Appeal from Decree entered July 26, 1977 of the Court of Common Pleas, Orphans' Court Division, County of Montgomery at No. 75349

COUNSEL

Steven H. Lupin, Lansdale, for appellant.

George W. Tracey, Lansdale, for appellee, Michael Maiorano, Adr.

James R. Beam, Norristown, for appellee, Lanco, Inc.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision in this case. Roberts, J., filed a concurring opinion. Larsen, J., concurred in the result.

Author: Flaherty

[ 488 Pa. Page 276]

OPINION OF THE COURT

Appellee, Michael P. Maiorano, is the administrator d. b. n. c. t. a. of the Estate of Maria C. Bosico. In this capacity, on April 28, 1977, he entered into a written agreement to sell the real estate which is the subject of this controversy to appellee, Lanco, Inc. Appellant, Theresa Payne, a residuary beneficiary under the will, filed a petition asking the court below to restrain the sale. At the hearing on her petition, the appellees' motion for a non-suit was granted by the court and this appeal followed.

Appellant contends that the sale should have been set aside under the authority of Section 3360 of the Probate, Estates and Fiduciaries Code on the ground that fraud had been committed by the administrator.*fn1 Alternatively, she claims that the administrator failed to act in good faith with

[ 488 Pa. Page 277]

    respect to the best interests of the beneficiaries of the estate, and that the court therefore had the authority, under its general equitable powers, to set aside the agreement.

A court's power to set aside the sale in question is delimited by Section 3360*fn2 which provides:

(a) Inadequacy of consideration or better offer. -- When a personal representative shall make a contract not requiring approval of court, or when the court shall approve a contract of a personal representative requiring approval of the court, neither inadequacy of consideration, nor the receipt of an offer to deal on other terms shall, except as otherwise agreed by the parties, relieve the personal representative of the obligation to perform his contract or shall constitute ground for any court to set aside the contract, or to refuse to enforce it by specific performance or otherwise: Provided, That this subsection shall not affect or change the inherent right of the court to set aside a contract for fraud, accident or ...


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