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PAUL F. BECKER v. MARIAN FUCHS MONTGOMERY (10/22/82)

filed: October 22, 1982.

PAUL F. BECKER, APPELLANT,
v.
MARIAN FUCHS MONTGOMERY, A/K/A MARIAN TREXLER, A/K/A MARIAN MONTGOMERY TREXLER, EXECUTRIX OF THE LAST WILL AND TESTAMENT OF EDWARD FUCHS, DECEASED



No. 820 PITTSBURGH 1981, Appeal from an Order of the Court of Common Pleas, Civil Division, of Blair County, No. 3116 Equity Term, 1976.

COUNSEL

David Paul Andrews, Hollidaysburg, for appellant.

Frederick B. Gieg, Jr., Altoona, for Fuchs, appellee.

James H. English, Altoona, for John Fuchs, participating party.

Hester, Johnson and Popovich, JJ.

Author: Hester

[ 305 Pa. Super. Page 583]

Appellant, Paul F. Becker, has appealed the order of a Court en banc of the Court of Common Pleas of Blair County, dated June 1, 1981, which dismissed his exceptions to, and otherwise affirmed and sustained, the adjudication

[ 305 Pa. Super. Page 584]

    and decree nisi of the late Honorable Robert B. Campbell, former President Judge, dated November 9, 1979.

On November 24, 1976, appellant filed an action in equity requesting specific performance of an agreement of sale of real property, dated May 22, 1972.*fn1

The parcel of real estate at issue was owned by Edward Fuchs, who died testate on March 26, 1960. Appellee Marian Fuchs Montgomery, also known as Marian Montgomery Trexler (Trexler), was the daughter of said Edward Fuchs and was appointed the Executrix of his Estate pursuant to the terms of his Last Will and Testament. However, letters testamentary were not issued to her until the Will was probated on November 12, 1976, sixteen years after his death.

The agreement of sale, dated May 22, 1972, concerning the subject property, which consists of approximately 200 acres, was executed by Becker and Trexler.*fn2 The agreement was also signed by Harry Deem of the J.W. Hubler Agency, as the real estate broker and "agent for owner and party of the first part." The agreement provided for a total sales price of $12,000, with settlement to be made on or before July 1, 1972. Becker paid an earnest money deposit of $400.00 at the execution of the agreement.

Apparently, during the years 1972 through 1976, Becker made various attempts to accomplish the closing of the transaction. Trexler consistently refused to deliver a deed or to probate her father's will. She stated that the other heirs refused to approve the sale for $12,000.00. However, Trexler subsequently listed the same parcel of real estate with another real estate agency in 1975. On September 13, 1976, ...


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