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decided: September 23, 1983.


No. 665 Philadelphia 1982, Appeal from the Order entered January 20, 1982, Court of Common Pleas, Lackawanna County, Orphans' Court Division, No. 1044 of 1978.


David L. Kurtz, Moscow, for appellants.

Patrick John Mellody, Scranton, for Brojack, participating party.

P. Timothy Kell, Scranton, for Warnetsky, et al., participating party.

Hester, Johnson and Popovich, JJ. Popovich, J., concurs in the result.

Author: Johnson

[ 321 Pa. Super. Page 158]

This is an appeal from an order dismissing appellant-William Brojack's objections*fn1 to the first and final account of the estate of Helen Brojack, deceased (hereinafter referred to as the decedent). The decedent was the mother of William Brojack (Bill), Peter Brojack, Jr. (Peter), Martha Warnetsky (Martha), Eleanor Hilavaty (Eleanor) and Paul Brojack (Paul). The five individuals named above are the sole beneficiaries under the will of the decedent; each was to receive an equal share. Paul was named as executor.

The decedent died on November 27, 1978. Family meetings were held on January 31, 1979 and March 16, 1979. Various estate assets were sold to the various beneficiaries and releases were executed as to most of such assets. Bill was deeded the family homestead (known as the farm) after the second meeting. Before the second meeting he had received title to a car which had been owned by American Silt Processing Co., a corporation owned by decedent.*fn2 No release was signed as to the car. Peter purchased an antique Cadillac from his mother's estate after the second meeting. Martha was to purchase two lots from the estate for her daughter; the record does not indicate whether this transaction was completed. The heirs agreed at the first meeting to reimburse Bill for his share of the proceeds of a

[ 321 Pa. Super. Page 159]

    sale of property, known as the Keyser Avenue property, which had been transferred to nonrelatives nine years earlier. Bill had allowed his father, Peter, Sr., decedent's husband (who had predeceased decedent), to retain such monies for his own use. Bill was paid by means of two checks, both dated before, though not processed until after, the second meeting. Subsequent to the second meeting, the executor entered into an agreement of sale with Martha for the transfer of American Silt. This sale has not been consummated due to the dispute which is the center of this appeal.

Appellants, Bill and Peter, complained that the sale price for American Silt is inadequate. The executor argues that the sale of the company was part of an oral family settlement agreement, binding on all the heirs. Appellees, Martha and Eleanor, likewise contend that a valid family agreement exists and that it should be enforced. The Orphans' Court found that a comprehensive family agreement exists which included the sale of American Silt to Martha. The chancellor dismissed the objection to such sale*fn3 and hence this appeal.

"[I]n reviewing the decision of the orphans' court, our task is to assure that the record is free from legal error and to determine if the chancellor's findings are supported by competent and adequate evidence, and are not predicated upon capricious disbelief of competent and credible evidence." Cohen Will, 445 Pa. 549, 550, 284 A.2d 754, 755 (1971); Garges Estate, 474 Pa. 237, 378 A.2d 307 (1977); Holtz Will, 422 Pa. 540, 222 A.2d 885 (1966); Hunter Will, 416 Pa. 127, 205 A.2d 97 (1964).

In Re Estate of McCrea, 475 Pa. 383, 386-87, 380 A.2d 773, 775 (1977) (brackets in original); quoted in In Re Estate of Damario, 488 Pa. 434, 437, 412 A.2d 842, 844 (1980). While our review of the Orphans' Court findings of fact is limited

[ 321 Pa. Super. Page 160]

    to considering whether they are supported by the record, we are not so restricted in reviewing the legal conclusions derived from the facts. In Re Ischy Trust, Etc., 490 Pa. 71, 415 A.2d 37 (1980). A finding of consent to or affirmance of a family agreement is a mixed question of fact and law which must be reviewed in light of the particular circumstances of the particular case. See Zampetti v. Cavanaugh, 406 Pa. 259, 176 A.2d 906 (1962).

In the current case the chancellor made the following findings. The decedent's five children were represented at the two family meetings; due to health reasons Peter was represented by his wife, Helen (not to be confused with decedent), and a son at both meetings. At the first meeting the executor provided a full and substantial disclosure of the estate assets, including documents pertaining to American Silt. Appraisals and alternate values were provided; Peter's wife, Helen, delivered such papers to him after the first meeting. After discussion at the first meeting, agreement was reached regarding the sale of various assets to the various beneficiaries, including American Silt to Martha. Agreement was ...

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