179 Pa. Super. 177 | Pa. Super. Ct. | 1955
Opinion by
This is an appeal from an order of the Court of Common Pleas of Luzerne County, sitting in banc, allowing petitioners Helen Klimkosky and Mary Chrastina, sisters of Michael Pelechacz, an incompetent person, to intervene in proceedings to revoke a decree approving the private sale of the interest of Michael Pelechacz in certain real estate and discharging a rule to show cause why the decree approving the private sale should not be revoked.
Andrew Pelechacz, father of the incompetent and petitioners, died testate on March 29, 1948. By the terms of his will which was duly admitted to probate the testator devised to Michael Pelechacz and Rosalie Pelechacz, his son and daughter, premises located ¿t 196-198 South Pine Street, Hazleton, Pennsylvania, which was his residence and place of business. This devise was made on condition that Michael and Rosalié provide a home for Helen Pelechacz Klimkosky, another child of testator. The will further provided that “In the event that Michael and Rosalie at any time in the future intend to sell the property known as 196-198 South Pine Street they may do so by mutual agree
The guardian’s petition for private sale of the incompetent’s interest in the real estate was brought under the provision of §443 of the Incompetents’ Estates Act of 1951, June 28, 1951, P. L. 612, 50 PS §1823, which reads, in part, as follows: “Whenever the court finds it to be for the best interests of the incompetent, a guardian may, for any purpose of administration or distribution, and on the terms, with- the security and after the notice directed by the court: (1) Sell at public or private sale, pledge, mortgage, lease, or exchange any real or personal property- of the incompetent, . . . .”
It is readily apparent that the determination of the kind of notice to be given and the recipients thereof are matters within the discretion of the court.
Pursuant to our order hereinafter made further proceedings will be held in connection with the petition for a rule to show cause why the decree entered on January 9, 1953 approving the private sale of the interest of the incompetent in premises situate at 196-198 South Pine Street, Hazleton, Pennsylvania, should not be revoked. We therefore deem it advisable to
In the instant ease we find there was a lack of proper notice to interested parties at the time of filing of the guardian’s petition for leave to sell the incompetent’s interest in the real estate, and subsequent to the decree approving the private sale, an offer was made to purchase the interest of the incompetent for $2,750.00, which is $500.00 in excess of the amount approved by the court. If proper notice had been given there might have been other offers submitted by interested parties which the court would have been required to consider. When a statute requires a court to direct or approve a sale of real estate of an incompetent (see Incompetents’ Estates Act of 1951, supra), the duty of making or approving the sale is placed upon the court and it is required to receive and consider all bids. See McKees Rocks Borough School District Petition, 360 Pa. 285, 62 A. 2d 20. Furthermore, in considering a petition for the approval of the pri
The order of the court below allowing Helen Klimkosky and Mary Chrastina to intervene is affirmed; the order of the court below discharging the rule to show cause why the decree entered January 9, 1953 approving the private sale of the interest of Michael Pelechacz in premises known as 196-198 South Pine Street, Hazleton, Pennsylvania, for the sum of $2,-250.00 to Pasco Montone should not be revoked is reversed, and the record is remanded for further pro ceedings on the rule referred to immediately herein-before.
The Act provides, inter alia, as follows: “. . . when the court shall hereafter approve a contract of a fiduciary requiring' approval of court, neither inadequacy of consideration, nor' the' re eeipt of an offer to deal on other terms shall, . . . relieve the fiduciary 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:. . " .....