Appeal from the Decree of the Court of Common Pleas of Monroe County, Civil at No. 9921-1977.
Kirby G. Upright, Stroudsburg, for appellant.
Beck, Popovich and Hoffman, JJ.
[ 354 Pa. Super. Page 276]
This is an appeal from a decree of the Court of Common Pleas denying exceptions to an adjudication and adopting the decree nisi as a final decree. We affirm.
Appellant, Security Bank and Trust Company, as executor of the estate of Dorothy Gordon, filed a first and final account. Appellees, Vivian Jane Gordon and Dorothy Jane Gordon, filed objections to the account, and an auditor was appointed. Following hearings, the auditor entered a report recommending, inter alia, that appellant be surcharged $85,300 for selling real estate at less than fair market value. Appellant filed exceptions which were denied, and an adjudication and decree nisi were entered. Appellant again filed exceptions which were subsequently denied, and a final decree was entered.
In its appeal to this Court, appellant raises the following issues:*fn1 1) are appellees barred from objecting at this time because they failed to restrain the sale of the real estate; 2) did the auditor fail to apply the proper standard of care; and 3) did the auditor err in finding the appraiser negligent and in finding appellant negligent by failing to recognize a deficiency in the appraisal.
Appellant contends appellees cannot now be heard to object to a sale of real property. The decedent had owned a 30% interest in approximately 84 acres of land. Appellant sold the property for $15,600 to one of the co-tenants in a private sale limited to co-tenants and decedent's relatives.
[ 354 Pa. Super. Page 277]
The trial court found that the fair market value of the property was $100,000 at the time of the sale.
Appellant argues that since appellee, Vivian Jane Gordon, took part in the private bidding and made a bid of $11,000, she is estopped from asserting a higher fair market value. The record supports the trial judge's refusal to accept this argument. The finder of fact found appellee, Vivian Jane Gordon, in no way misled appellant and entered her bid of $11,000 in an attempt to keep appellant from accepting a prior bid of $10,000. The record supports appellee was without the financial means to enter a substantially higher bid; furthermore, we can find nothing in the record to indicate when appellee first learned of the true market value. Under these circumstances mere participation in the bidding process by one appellee does not evoke estoppel.
20 Pa.C.S.A. § 3355 gives one the right to petition the court to restrain a sale under certain circumstances. However, the language of the section does not indicate one must seek to restrain a sale or else waive any right to surcharge; ...