HomeMy WebLinkAbout08-22-07[N RE: ESTATE OF
JOHN V. SHOEMAKER, III,
Deceased
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IN THE COURT OF COMIVIO~IPLLAS OF
ORPHANS' COURT DIVISIQI
CUMBERLAND COUNTY, IiENNS~'~,VANIA
ESTATE NO: 2006-00474 -'
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PETITION FOR LEAVE TO SELL REAL ESTATE
THE HONORABLE, THE JUDGES OF SAID COURT:
AND NOW, comes your Petitioner, Robert Fisher, Executor, by his attorneys, Snelbaker
Brenneman, P.C., and respectfully represents as follows:
1. The Petitioner herein is Robert Fisher, an adult individual, who is the Executor of
Estate and under the Last Will and Testament of John V. Shoemaker, III, Deceased.
2. The Respondent herein is Dianne Liberator, an adult individual, who resides at
~ 170 East Penn Street, Carlisle, Cumberland County, Pennsylvania.
3. John V. Shoemaker, III (hereinafter called "Decedent") died on June 1, 2006, as a
of Silver Spring Township, Cumberland County, Pennsylvania, leaving his Last Will
Testament dated June 8, 1998.
4. Decedent's Will was probated in the Office of the Register of Wills in the
captioned above and Letters Testamentary were issued to your Petitioner.
5. At the time of his death, Decedent was the owner of an unimproved tract of land
fining 19.171 acres in Upper Frankford Township, Cumberland County, Pennsylvania
LAW OFFICES
SNELBAKER SC
BRENNEMAN, P.C.
((hereinafter called "Subject Real Estate"), said land being more fully described in "Exhibit A"
attached hereto.
6. In order to meet the cash needs of the Estate to pay claims, costs, fees, expenses
and monetary bequests, Petitioner needs to convert the Subject Real Estate to cash.
7. The Subject Real Estate is not subject to a specific devise under Decedent's Will.
8. Respondent is the daughter of the Decedent and sole residuary beneficiary under
Decedent's Will.
9. Respondent has advised Executor and his attorneys that she wants to receive the
Subject Real Estate in-kind in the residuary distribution of the Estate, and has admonished
Executor not to sell said Subject Real Estate.
10. Petitioner has negotiated a sale of the Subject Real Estate to Gregory R. and Lisa
L. Ellerman for a price and consideration of $1 0 1 ,500.00 as documented by a written Agreement
of Sale attached hereto marked "Exhibit A" and incorporated herein by reference thereto.
11. The County of Cumberland has assessed the Subject Real Estate for 2007 real
estate taxation at a market value of $58,480.00. Petitioner has obtained a bona fide professional
appraisal indicating the fair market value of the Subject Real Estate to be $100,900.00 as of the
date of Decedent's death.
II 12. The only other marketable asset subject to liquidation is a tract of real estate
ioccupied by Respondent as her residence at the address mentioned in paragraph 2 above.
13. The Petitioner's performance of the Agreement of Sale ("Exhibit A") is expressly
conditioned upon obtaining an order of this Court authorizing and permitting the consummation
of the sale to the proposed purchasers.
14. Because of Respondent's strongly expressed concerns about retaining the Subject
IReal Estate in-kind, Petitioner desires to have the proposed sale to have the effect of a judicial
sale, thereby eliminating any future dispute over Petitioner's sale thereof.
LAW OFFICES
SNELBAKER &
BRENNEMAN. P.C.
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LAW OFFICES
SNELBAKER &
BRENNEMAN, P.C.
15.
While the Petitioner believes he has the power to sell the Subject Real Estate
20 Pa. C.S. S 3353.
WHEREFORE, Petitioner respectfully requests your Honorable Court to authorize and
permit him to consummate the sale of the Subject Real Estate in accordance with the Agreement
of Sale attached as "Exhibit A" pursuant to 20 Pa. C.S. S 3353.
SNELBAKER & BRENNEMAN, P.C.
BY~
44 West Main Street
Mechanicsburg, P A 17055
(717) 697-8528
Attorneys for Petitioner
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LAW OFFICES
SNELBAKER &
BRENNEMAN. P.C.
VERIFICATION
I, ROBERT FISHER, Executor of the Estate and Under the Last Will and Testament of
John V. Shoemaker, III, Deceased, do hereby certify that the facts in the foregoing Petition for
Leave to Sell Real Estate within my personal knowledge are true and correct. I understand that
any false statements made herein are subject to the penalties of 18 P A C.S. 94904 relating to
unsworn falsification to authorities.
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Robert Fisher
SNELBAKER & BRENNEMAN, P.C.
Attorneys-at-Law
44 West Main Street
Mechanicsburg, P A 17055
AGREEMENT OF SALE
THIS AGREEMENT made and entered into this ;1.).,,1. day of August, 2007, by and
between:
SELLER:
Name:
ROBERT FISHER, Executor of the Estate and
under the Last Will and Testament of JOHN V.
SHOEMAKER, III, Deceased, late ofthe Township of
Silver Spring, Cumberland County, Pennsylvania,
Address:
c/o Snelbaker & Brenneman, P.e.
44 West Main Street
Mechanicsburg, P A 17055-0318
party of the first part, individual, hereinafter called "Seller",
AND
PURCHASERS:
Name
GREGORY R. ELLERMAN and LISA L. ELLERMAN,
husband and wife
Address:
80 Fry town Road
Newville, PA 17241
parties of the second part, individuals, hereinafter called "Purchasers".
WITNESSETH:
WHEREAS, Seller is the fiduciary owner of all that certain Real Estate more fully
described in Exhibit "A" attached hereto, and desires to sell the same to Purchasers, and
Purchasers desire to purchase said real estate from Seller; and
WHEREAS, the parties have negotiated certain terms and conditions of their sale and
purchase of said Real Estate which they desire to document by these presents;
EXHIBIT A
NOW, THEREFORE, in consideration ofthese presents and the mutual promises, terms
and conditions set forth herein and intending to be legally bound hereby, the parties mutually
agree as follows:
1. Subject to the provisions of paragraph 7 hereinbelow, Seller agrees to sell, grant and
convey unto Purchasers, and Purchasers agree to purchase, buy and accept the conveyance of all
that certain real estate premises more fully set forth in a certain description thereof attached
hereto, marked Exhibit "A" and incorporated herein by reference thereto and herein called "Real
Estate" .
2. Purchasers promise and agree to pay to Seller the sum of One Hundred One Thousand
Five Hundred and Noll 00 ($101,500.00) Dollars as the full purchase price and consideration for
said Real Estate (hereinafter called "Price") payable as follows:
A $1,500.00 upon the execution and delivery of this Agreement, receipt
of which is hereby acknowledged by Seller (hereinafter called "Earnest Money");
and
B. The balance of said Price, to wit: $100,000.00, to be paid to Seller in
cash or other guaranteed funds at the time of final settlement as scheduled and
provided in Paragraph 3 hereinbelow.
3. Final settlement of this transaction shall be made and held at the office of
SNELBAKER& BRENNEMAN, P.C., 44 West Main Street, Mechanicsburg, Cumberland
County, Pennsylvania 17055 on the 31st day of October, 2007, at 9:00 o'clock AM., prevailing
time, time being of the essence of this Agreement, at which settlement the following shall take
place:
A The parties shall adjust the real estate taxes and charges for public
utilities and municipal services, if any, on said Real Estate as provided in
Paragraph 4 hereinbelow.
B. Purchasers shall pay to Seller the balance of the Price as required
under Paragraph 2 hereinabove.
C. Seller shall tender to Purchasers a properly drawn and duly executed
deed describing said Real Estate, intending thereby to convey good and
marketable title in fee simple with covenant of special fiduciary warranty, free
and clear of all liens and encumbrances except (but subject to) (1) all rights-of-
way and easements, visible upon inspection of said Real Estate or of prior public
record, including, but not limited to, public rights of passage over all adjoining
streets and alleys to the extent of their legal widths and the rights and privileges of
all public utilities and municipal services maintaining facilities on said Real
Estate, (2) building and use restrictions of prior record, and (3) the rules,
regulations, classifications and restrictions of any zoning or other land use
ordinance, resolution or statute applicable to said Real Estate.
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EXHIBIT A
D. Seller shall deliver possession of the Real Estate to Purchasers.
4. A. All real estate taxes on said Real Estate for the respective current tax years of
the taxing authorities shall be adjusted and prorated between the parties as of and to the
date of final settlement as scheduled and provided in Paragraph 3 hereinabove, with each
party paying to the other the apportioned amount oftax prorated to such party's
ownership of said Real Estate based upon the tax year(s) of each such governmental
taxing body.
B. The periodic charges, rents or fees of all public utilities or municipal services
providing services to said Real Estate shall be adjusted and prorated between the parties
as of and to said date of final settlement, with each party paying to the other or the billing
entity, as the case may be, the apportioned amount of such charges, rents or fees the
apportioned amount prorated to such party's ownership of said Real Estate based upon the
respective billing period of each servicing entity.
5. The parties agree to pay equally all realty transfer taxes which may be imposed upon
the conveyance of said Real Estate at the time of final settlement, Seller to pay one-half and
Purchasers to pay one-half.
6. Seller assumes the risk of loss to any improvements on said Real Estate by fire or
other casualty until final settlement as scheduled and provided in Paragraph 3 hereinabove, and
agree that said improvements shall remain in substantially their present condition until said date
of final settlement, reasonable wear and tear under the circumstances of Seller's use of s aid Real
Estate being excepted, and, if not, Purchasers may rescind this transaction. Subject only to the
foregoing, Purchasers agree to accept said Real Estate in its present condition "as is", and it is
further understood and agreed that Seller makes no warranties of any kind or nature, express or
implied, as to the condition, dimensions, suitability or use of said Real Estate. Purchasers
acknowledge that they have inspected the Real Estate and agree to accept the same in such
condition and further agree to be wholly responsible for any repairs or improvements which may
be required for Purchasers' future use of said Real Estate.
Seller is a fiduciary und,er the Real Estate Seller Disclosure Act (Act of July 2, 1996, No.
84) and is excepted from making a disclosure statement under said Act, and Seller hereby states
that he lacks personal knowledge necessary to complete the disclosure statement which might
otherwise be required under said Act.
7. Notwithstanding anything to the contrary appearing herein, this Agreement and
Seller's perforn1ance thereof are expressly conditioned and contingent upon Seller obtaining an
Order of the Court of Common Please, Orphans' Court Division of Cumberland County"
Pennsylvania, authorizing and permitting the consummation of the sale of the Real Estate to
Purchasers. If Seller does not obtain such Order of Court by the settlement date aforesaid, this
Agreement shall become unenforceable except that Seller shall refund the Earnest Money to
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EXHIBIT A
Purchaser within five (5) business days after the denial of the request for Order or October 31,
2007, whichever first occurs.
8. This agreement is not subject to any contingencies not specifically stated herein.
9. If for any reason the Purchasers should determine the need for a current survey of the
premises, the cost and expense thereof shall be borne exclusively by the Purchasers.
10. If Purchasers shall fail or refuse to make final settlement as required and scheduled
hereinabove, Seller may cancel this Agreement and retain the Earnest Money paid hereunder as
liquidated damages, in which event Purchasers' rights hereunder shall cease and terminate and
Seller shall have the right to further own and dispose said Real Estate free of any right of
Purchasers thereto or therein, or, alternatively, take such action at law or in equity as may be
appropriate.
11. If Seller should fail or refuse to make final settlement as required and scheduled
hereinabove, Purchasers may cancel this Agreement and require the return of the Earnest Money
paid hereunder, in which event, the rights of the parties herein and hereunder shall cease and
terminate, or, alternatively, take such action at law or in equity as may be appropriate.
IN WITNESS WHEREOF, the parties have duly executed these presents the day and
year first written above, intending thereby to legally bind themselves and their respective heirs,
personal representatives, successors and assigns.
WITNESSED BY:
SELLER:
ESTATE OF JOHN V. SHOEMAKER, III, Deceased
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BY~~
ROBERT FISHER
(Executor)
PURCHASERS:
GREGORY R. ELLERMAN and LISA 1. ELLERMAN,
husband and wife
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to f!i1vt
. Ellerman
;,~ (SEAL)
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Lisa L. Ellerman -
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EXHIBIT A
EXHIBIT A
LEGAL DESCRIPTION OF REAL EST ATE
ALL that certain tract ofland situate in Upper Frankford Township, Cumberland County,
Pennsylvania, bounded and described according to a property survey for David E. and Lorna W.
Rogers, as prepared by Wilbur H. Clifton, R.S., dated September 4,1984, and recorded in the
Office of the Recorder of Deeds in and for Cumberland County in Plan Book 46, Page 125, as
follows, to wit:
BEGINNING at a pint on the existing right-of-way line of T -441, and a p.k. nail in T-
448; thence along T-448 the following courses and distances: Sough 31 degrees 51 minutes 30
seconds East 57 feet to a p.k. nail; South 60 degrees 30 minutes 40 seconds East 44.45 feet to a
p.k. nail; South 83 degrees 35 minutes 06 seconds East 47.35 feet to a p.k. nail; North 80 degrees
14 minutes 10 seconds East 120.77 feet to a p.k. nail; North 84 degrees 12 minutes 20 seconds
East 62.90 feet to a p.k. nail; South 85 degrees 30 minutes 10 seconds East 55.60 feet to a p.k.
nail; South 82 degrees 47 minutes 00 seconds East 229.90 feet to a p.k. nail; South 77 degrees 16
minutes 50 seconds East 88.34 feet to a p.k. nail; South 59 degrees 00 minutes 44 seconds East
70.23 feet to a p.k. nail; South 36 degrees 18 minutes 15 seconds East 208.93 feet to a p.k. nail;
thence along and through the Conodoguinet Creek the following courses and distances: South 82
degrees 50 minutes 15 seconds West 239.25 feet to a point; South 68 degrees 50 minutes 15
seconds West 363 feet to a point; South 37 degrees 50 minutes 15 seconds West 468.60 feet to a
point; South 14 degrees 11 minutes 50 seconds West 295.15 feet to a point; thence by land now
or formerly of Frederick M. Kappel and crossing over T-441, North 39 degrees 45 minutes 10
seconds West 1204.50 feet to a point; thence along land now or formerly of Evelyn C. Hemphill,
crossing through and over T -441, the following courses and distances: North 67 degrees 44
minutes 40 seconds East 481.80 feet to a point; South 31 degrees 15 minutes 20 seconds East
47.85 feet to a point; North 81 degrees 44 minutes 40 seconds East 371.60 feet to a point, the
point and place of BEGINNING.
BEING Lot No.3 of the above-referred-to Plan and containing 19.171 acres.
BEING the same premises which David E. Rogers and Lorna W. Rogers, his wife, by
their deed dated July 10,1985, and recorded in the Recorder's Office aforesaid in Deed Book
"J", Volume 31, Page 807, granted and conveyed unto Jolm V. Shoemaker, III, whose Executor
is the Seller herein.
SUBJECT, however, to the following restrictions:
1. No unlicensed or inoperable vehicles shall be permitted on the premises
herein conveyed.
2. No junkyard shall be established or permitted on the premises conveyed
herein.
EXHIBIT A