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decided: July 3, 1980.


Nos. 57 & 73 March Term, 1979, Appeal from the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, at No. 1317 of 1977.


Alice Dobson, Clyde P. Bailey, Pittsburgh, for appellants at No. 57 and appellee at No. 73.

Terrence F. McVerry, Jane Dale Ressler, Gondelman, Baxter, Mansmann & McVerry, Pittsburgh, for appellants at No. 73 and appellee at No. 57.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ.

Author: Roberts

[ 490 Pa. Page 479]


This appeal presents the question whether appellee, the executor of decedent's estate, properly disposed of decedent's one-fourth interest in a Subchapter S corporation. The executor sold decedent's stock back to the corporation's board of directors, who purchased the shares on behalf of the corporation. Appellants, beneficiaries under decedent's will, contend that the sale price is below market value of the shares. Unlike the orphans' court, we agree with appellants that the executor improperly computed the value of decedent's shares. Accordingly, we vacate the decree of the orphans' court and remand for a determination of the amount of surcharge.

On March 16, 1977, Fay Earhart Dobson died testate, leaving a will dated December 28, 1971. The will was probated in Allegheny County and letters testamentary were granted to appellee, Abraham Fishkin, Esq., decedent's son-in-law. Other than a specific legacy to a granddaughter, the will provided that the estate be distributed in equal shares to five named beneficiaries -- the Catholic Negro-American Mission Board and four daughters, Alice Dobson Fishkin, Sara Jane Troy, Anne Dobson McDonald and Mary Virginia Dobson.

The executor filed an inventory of the estate, valuing the assets at $168,902.97. Seventy shares of Nordev, Inc. stock, which decedent received from her husband's estate, were included in the inventory at the executor's value of $60,000.

Nordev, chartered in 1954, operated as a tax-option small business corporation under the provisions of Subchapter S of the Internal Revenue Code. Nordev engaged primarily in real estate development. At decedent's death, its principal asset was a 200 acre tract of land located in Marshall Township, Allegheny County. This tract was partially subdivided for sale, but the substantial portion of the property had been developed as a golf course. Since its construction,

[ 490 Pa. Page 480]

    the golf course provided Nordev a steady income in addition to gains the corporation realized from the periodic sale of developed lots.

On September 19, 1977, at a private sale, the executor sold decedent's Nordev shares back to the corporation at the inventory value of $60,000. No court approval of the sale was sought. Following this disposition of the stock, the executor filed a first and final account. At audit, appellants objected to the account.*fn1 They argued that the value of decedent's shares was "far in excess of the redemption price accepted by the accountant." As a result of the alleged undervaluation, appellants sought a hearing on the actual value of the shares and the appropriate surcharge of the executor.

At the hearing on the objections to the account, the executor testified that as an expert on real estate appraisal he valued the shares by projecting a potential sales price for the underlying assets of Nordev and then subtracting corporate liabilities and taxes.*fn2 That sum was adjusted to reflect decedent's ownership of only a one-fourth interest in the company.*fn3

Appellants presented the testimony and report of a real estate appraiser. The witness appraised the property at

[ 490 Pa. Page 481]

$665,300, or $3,290 per acre, a value not much different from the lowest figure considered by the executor ($3,200 per acre). Appellants also presented Henry C. Cohen, a certified public accountant and tax lawyer, who testified that the executor erred in calculating the value of decedent's shares by deducting various amounts, such as income taxes and the decedent's cost basis, from the potential sale price of the land.*fn4 Mr. Cohen then described his method of calculation which did not utilize these deductions taken by the executor and, concluded that the estate shares were worth approximately $107,489.

Based on the auditing judge's view that the "impact of capital gains tax involved in any sale of the land," that the estate's "seventy (70) shares represented a minority interest," that the "undeveloped land" was of "speculative character," and that "the estate has recovered $60,000 in 1977 for the original investment of $7,000 made . . . in 1954," the auditing judge believed that the executor merely erred in his exercise of discretionary judgment. In light of his findings the auditing judge held that "the evidence is insufficient in law to support a surcharge against the executor."

[ 490 Pa. Page 482]

Although unwilling to impose a surcharge, the auditing judge nonetheless determined "that there was an error of judgment in the case in the matter of the sale of the 70 shares of stock by the executor to Nordev." As a result the auditing judge suspended distribution of the $60,000 redemption proceeds until November 17, 1978, and allowed appellants an opportunity to produce a purchaser for the shares at a price at least twenty percent higher than that paid by the corporation. Appellants filed exceptions to the decree.

Appellants argued the exceptions before a three judge panel of the orphans court division.*fn5 Relying on the auditing judge's statement that the executor would have been more prudent "to have invoked the provisions of Section 3353 of the [Probate, Estates and Fiduciary Code, 20 Pa.C.S. § 3353] and to have made the transaction a judicial sale," see Estate of Penrose, 486 Pa. 9, 403 A.2d 982 (1979); Curtis Estate, 437 Pa. 123, 261 A.2d 589 (1970), the court en banc found that:

"Mr. Fishkin made the appraisal on which the sale was based. He called in no independent appraiser. He is the husband and law partner of Alice Dobson Fishkin, who is an officer, director and stockholder of Nordev, Inc., which corporation purchased the stock in question from the estate. Mr. Fishkin and his wife, who is his law partner, owed a duty to the estate to secure the highest price possible for the estate. On the other hand Mrs. Fishkin, whose interests may be identified with those of her husband, owed a duty to Nordev, Inc. to purchase the property

[ 490 Pa. Page 483]

    at the lowest possible price. The conflict in interest is apparent. Under the circumstances we will void the sale of the 70 shares of stock of Nordev, Inc. by the estate to the corporation for $60,000."*fn6

That court also found, however, that the "testimony adduced by objections as to the value of the stock was indefinite." Hence, the court en banc concluded that the executor did not abuse his discretion in taking the deductions and should not be surcharged.*fn7

From the adjudication of the orphans' court en banc, cross appeals were filed in this Court. The parties stipulated to consolidation of the appeals. The executor now disputes the court en banc's determination that a conflict of interest existed. Alternatively, the executor argues that if such a conflict did exist, it was not detrimental to the estate. For that reason, the executor contends that the decree nisi of the auditing judge should be confirmed and the $60,000 redemption proceeds be distributed to the beneficiaries. Appellants argue that sufficient evidence appears of record to justify the imposition of a surcharge on the executor. According to appellants, the executor's deductions of state and federal income taxes from the potential sales price of the Nordev property contravened established accounting principles of valuation. Appellants also contend that the executor improperly deducted the decedent's cost basis when calculating

[ 490 Pa. Page 484]

    the value of decedent's Nordev shares. We believe the amount available for distribution here may not be diminished by those deductions prior to distribution to the beneficiaries. Therefore, because the executor erred in calculating the value of decedent's shares and thereby obtained a price below the value of the shares, we must reverse the decree of the court en banc, vacate the decree of the auditing judge and remand for determination of the proper surcharge to be imposed on the executor.*fn8

As we have previously stated, "[s]urcharge is the penalty for failure to exercise common prudence, common skill and common caution in the performance of the fiduciary's duty and is imposed to compensate beneficiaries for loss caused by the fiduciary's want of due care." Estate of Stephenson, 469 Pa. 128, 138, 364 A.2d 1301, 1306 (1976), quoting Miller's Estate, 345 Pa. 91, 95, 26 A.2d 320, 321 (1942). This standard of care imposed upon the executor has been repeatedly expressed as "that which a man of ordinary prudence would practice in the care of his own estate." Estate of McCrea, 475 Pa. 383, 387, 380 A.2d 773, 775-76 (1977). Parties seeking surcharge bear the burden of proving the executor failed to meet the duty of care owed to the estate. Estate of Lux, 480 Pa. 256, 389 A.2d 1053 (1978); Estate of Ellis, 460 Pa. 281, 333 A.2d 728 (1975). That burden, however, is shifted in circumstances where, as here, the executor exercises the power to sell estate assets at a private sale. 20 Pa.C.S. § 3351; Wade's Estate, 343 Pa. 520, 23 A.2d 493 (1942); see also Lohm Estate, 440 Pa. 268, 269 A.2d 451 (1970); Maurice Estate, 433 Pa. 103, 249 A.2d 334 (1968).

Appellants introduced testimony of a tax accountant that the executor's deductions for taxes and cost basis were inappropriate when determining the value of the

[ 490 Pa. Page 485]

    shares. That testimony reveals, and our research confirms, that a corporation electing Subchapter S treatment is not subject to capital gains taxes such as those projected by the executor. By the very nature of the election, all gains and losses pass through the corporation to the individual shareholders.*fn9 Thus, any such tax liability is the responsibility of each shareholder, to be computed at that shareholder's marginal rate. The executor failed to rebut this direct evidence of his improper calculation. These facts strongly suggest a conflict of interest. At the very least this record establishes that the executor was clearly negligent in deducting the potential capital gains taxes from the value of decedent's shares prior to offering the stock for redemption.

Likewise, the executor improperly deducted the decedent's cost basis from the potential sales price prior to offering the shares. When calculating the value of the shares to determine the amount available for distribution to the beneficiaries, it is inappropriate to deduct the decedent's cost basis. Rather, at distribution, the beneficiaries are entitled to the full amount realized from the proper sale price of the shares. It cannot be successfully argued, that it is permissible to deduct decedent's initial investment from the sale price in order to determine the sum to be distributed. Nor do we know of any instance in which such a procedure has been judicially approved. Consequently, the executor may not deduct the cost basis from the potential sales price when calculating the value of the stock.

Here, the executor entered into the contract for redemption of shares by Nordev on the basis of an erroneous deduction for income taxes and decedent's cost basis. Typically, inadequacy of consideration does not provide grounds for setting aside a contract entered into by an executor. 20 Pa.C.S. § 3360; see In re Brereton's Estate, 355 Pa. 45, 48

[ 490 Pa. Page 486]

A.2d 868 (1949). Nothing in § 3360, however, "shall affect the liability of a personal representative for surcharge on the ground of negligence or bad faith in making a contract." 20 Pa.C.S. § 3360(a). See also Gray Estate, 5 Pa. D. & C.3d 561 (1978). We are therefore of the view that the executor's miscalculation, by improperly deducting taxes and the cost basis, fell below the standard owed as a fiduciary administering the estate. See Maurice Estate, 433 Pa. 103, 249 A.2d 334 (1969) (executor surcharged for failing to compute the estate tax liability properly); See also Estate of Ellis, 460 Pa. 281, 333 A.2d 728 (1975) (executor surcharged for duplicate commission paid to realtor on sale of single tract of land); Denlinger Estate, 449 Pa. 393, 297 A.2d 478 (1972) (executor surcharged for failing to preserve estate property from deterioration). Accordingly, we reverse the decree of the orphans' court en banc, vacate the decree of the auditing judge and remand for proceedings consistent with this opinion.

Decree reversed and proceedings remanded. Each party to pay own costs.

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