Freker v. Berg , 193 Pa. 442 ( 1899 )

Opinion by

Mr. Justice McCollum,

This is a case stated in which Henry Freker as executor of the last will and testament of Bernard Bischof, deceased, is the plaintiff and Henry Berg is the defendant. It relates to a sale by the former to the latter of certain lots designated in the will of the decedent as his Verona property, and of which he died seized. The executor, in his petition to the orphans’ court for an order to sell said property for the benefit of the owners, averred, inter alia, that he had received an offer from Henry Berg to purchase said property at the price of $1,000, and that the same was a fair and reasonable price, and more than could be realized at a public sale. It was also averred therein that all the heirs and parties in interest, except William Bischof, who was a nonresident, absent from the state and unheard of since 1884, desired that the sale should be made. There was a debt of the estate secured by mortgage on the decedent’s Pitts-burg property, and it was the intention of the heirs and parties in interest that the money arising from the sale of the Verona property should be applied to the payment of this debt. This intention was therefore in accord with the manifest intention of the’testator, who in the sixth clause of his will said: “It may be necessary to sell my Verona property to pay off debts of my Pittsburg property.” All debts not of record, and some that were, have been paid, and the mortgage debt alone remains. There is therefore no question raised concerning a debt which has lost its lien by the failure of the creditor to comply with the 24th section of the Act of February 24,1834, P. L. 77, nor any warrant for an inference or suggestion in Kirk v. Carr, 54 Pa. 265, in Myers’s App., 62 Pa. 104, or in Bell’s App., 66 Pa. 498, which in any degree collides with or obstructs the proceeding in the orphans’ court or invalidates the order of sale. The proceedings in said court were under the act of April 18, 1858, commonly known as the Price Act, and in conformity therewith. It plainly appeared in the petition and the testimony supporting it that the heirs and parties in interest would be materially benefited by the sale, and the court upon due consideration entered on March 3, 1896, an order in accordance with the petition, which order was followed on March 7, 1896, by a contract between the plaintiff and defendant in the case stated.

All the parties in interest, including tbe minor children of the decedent, who were represented by their guardian, approved the sale, except the nonresident heir absent as above stated, and service on him or his next of kin was had by advertisement as required by order of court.

The plaintiff, having executed a good and sufficient deed for said lots to the said Henry Berg, tendered him the same and made demand for the purchase money, which he refused to pay, alleging that the said deed and proceedings did not convey a good and marketable title in fee simple to said lots. The court below, after due and careful consideration of the case stated and the exhibits, concluded that the deed tendered vested in the defendant a good and marketable title to the property described therein, and in this conclusion we concur. We therefore affirm the judgment entered by the learned court below.

Judgment affirmed.