J-A09044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GORDON D. CURTIS AND CHERYL A. IN THE SUPERIOR COURT OF
CURTIS, LEGAL GUARDIANS OF THE PENNSYLVANIA
MINOR CHILD LOGAN MICHAEL CURTIS
AND ZACHARY AARON CURTIS
Appellants
v.
NANCY E. H. CARTER
Appellee No. 2112 EDA 2013
Appeal from the Order February 9, 2012
In the Court of Common Pleas of Pike County
Orphans' Court at No(s): 13-2010 OC
BEFORE: BOWES, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 01, 2014
Gordon Curtis and Cheryl Curtis, legal guardians of the minor children
appeal from the February 9, 2012 Order entered by the Pike County Court of
affirm.
The trial court set forth the facts and procedural history of this case as
follows:
The present
of a testamentary trust created by Edgar F. Wilson and the
estates of Edgar and Rita A. Wilson. [Carter] was named as
Executrix of the Estate of Edgar F. Wilson and Trustee of the
Testamentary Trust created b
1988. On February 7, 1989, Rita Wilson executed a Power of
Attorney naming [Carter] her attorney-in-fact and Mrs. Wilson
J-A09044-14
later executed a will naming [Carter] as executrix of her estate.
l provided that [Carter] would be the
sole beneficiary of her estate should Peggy Wilson, Edgar and
administered the trust for the benefit of Rita Wilson, using her
discretion as trustee to sell some of the estate properties to
estate was probated in Pike County.
On March 23, 2010[,] [Appellants] initiated an action
against [Carter] on behalf of Logan Michael Curtis and Zachary
Aaron Curtis, the then-minor grandchildren of the decedents.
The Petition and Amended Petition, filed August 1, 2011 [1],
alleged that [Carter] breached her fiduciary duty and engaged in
self-dealing both in acting as Trustee and in administering the
estates of the Wilsons. [Appellants] asked this [c]ourt to require
[Carter] to provide a full and final accounting of all assets in the
Estate[s] of Edgar Wilson and Rita Wilson; impose an interim
constructive Trust, order disgorgement of monies and properties,
and administer the [E]state of Edgar Wilson for the benefit of the
grandchildren; or alternatively, to remove [Carter] as Executrix
of the estates of Edgar and Rita Wilson.
Specifically, [Appellants] alleged self-dealing in relation to
court approval by Order dated June 15, 1993; and disposition of
several other small parcels owned by Edgar and Rita Wilson.
[Appellants] also took issue with pre-payment of a mortgage
[Appellants] complain that Logan Michael Curtis and Zachary
Aaron Curtis were entitled to notice of the probate of the Estate
of an Annuity payment that named Rita Wilson as designated
[Carter] took as sole beneficiary unde
matter, this [c]ourt issued a very detailed Order with specific
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findings of fact and legal conclusions on February 9, 2012,
entering judgment on behalf of [Carter] and dismissing
Prothonotary, counsel for the parties involved did not receive
notice of the above order until June 12, 2013. At that time,
[Appellants] petitioned for Leave to File an Appeal Nunc Pro
Tunc, which was granted by this [c]ourt after a hearing on the
matter. [Appellants] filed a Notice of Appeal on July 26, 2013.
at 1-3.
Appellants raise the following claims of error:
expert witness, a residential appraiser[,] as to the value of a
parcel consisting of 69 acres more or less which was sold to
[Carte
valuation of the parcel in the year it was sold, when the parcel
was acknowledged to be 69 acres, was held in trust for the
benefit of the two minor children, and when the Trust has not
yet been closed as admitted by [Carter]?
2. Did the [c]ourt err in ruling that the filing of the Letters
Testamentary in Pike County for Rita Wilson, a resident of Lehigh
County was proper notwithstanding the fact that [Carter]
acknowledged that Rita Wilson resided in Lehigh County for five
attorney?
3. Did the [c]ourt err in finding that the instant petition
challenging the propriety of the Notices of Beneficiary Interest in
the Estate of Rita A. Wilson was untimely in that it was un-
refuted that no notice was sent to Beneficiaries as defined by
Rule and Law other than to [Carter] herself?
4. Did the [c]ourt err in ascribing knowledge of probate
proceedings in Pike County to [Appellants], residents of
Florida[,] based on the purported knowledge of a third party,
who testified that he never received notice of any probate
proceedings and which testimony was unrefuted?
5. Did the [c]ourt err in not applying the statutory provision
prohibiting self-dealing and conflicts of interest to [Carter] who
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conveyed assets out of the Testamentary Trust[] to herself and
her husband and her parents when she admitted that she was a
fiduciary and trustee of a Trust beneficiaries of which were the
minor children?
6. Did the [c]ourt err in holding that a mortgage created by
[Carter] for the benefit of her and her husband could properly
alter the provisions of a Court Order approving such sale, which
Court Order imposed specific terms and conditions for the
mortgage, when that Court Order was never modified?
7. Are the Findings of Fact unsupported by the testimony and/or
evidence presented at Trial?
8. Are the Conclusions of Law unsupported by the testimony
and/or evidence presented at Trial and contrary to Statutes
and/or Rules?
9. Are the factual conclusions set forth in the Memorandum
Opinion unsupported by the Testimony and/or evidence
presented at Trial and contrary to the law?
10. Did the [c]ourt err in failing to consider that the ultimate
disposition of all assets or nearly all of the assets of the
Testamentary Trust and Estate went to the benefit of either
[Carter] who was admittedly a Fiduciary or her family members?
-8. Otherwise stated, Appellants claim that the trial
court erred by
(3) determining the petition challenging the probate was untimely because
the minor alleged-beneficiaries received no notice; (4) ascribing knowledge
of the probate proceedings to Appellants through a third party; (5) not
determining that Carter had engaged in self-dealing; (6) ruling a mortgage
created for the benefit of Carter and her husband did not violate a previous
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court order; and (7) failing to consider that nearly all of the assets of the
estates ultimately went to Carter and her family.2 All of these claims relate
ndling of, and determinations resulting from,
of the
In re Estate of Miller, 18 A.3d 1163, 1169
(Pa.Super.2011) (en banc).
[We] must determine whether the record is free from legal error
as the fact-finder, it determines
the credibility of the witnesses and, on review, we will not
reverse its credibility determinations absent an abuse of that
discretion. However, we are not constrained to give the same
deference to any resulting legal conclusions. Where the rules of
law on which the court relied are palpably wrong or clearly
Id. (alterations and citation omitted).
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either
are general restatements of the more specific claims previously raised.
gain simply broadly restates the issues
accompanied the findings of fact and conclusions of law.
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A review of the terms of the Last Will and Testament of Rita Ann
executed the Will on December 29, 1990. See Will, p. 4. The Will
a.k.a. Peggy Curtis. See id. at p. 1, Item II. However, the Will further
provides as follows:
E. In the event that my daughter, PEGGY LYNN WILSON, is
deceased prior to reaching forty (40) years of age, then I give,
devise and bequeath my entire estate unto NANCY CARTER of
Greentown, Pennsylvania, the same to be hers absolutely and
forever.
See id. at p. 2, Item II(E). The Will also appointed Carter as Executrix and
Trustee under the Will, and granted Carter all the necessary powers to
execute the duties of those positions.3 See id. at p. 2, Items III-IV.
The record further reveals that Peggy Wilson, the mother of Logan
Michael Curtis and Zachary Aaron Curtis, died on July 26, 1997, prior to
reaching forty years of age. See Petition, pp. 2, 3; N.T. 8/1/2011, pp. 12,
14-15; N.T. 12/7/2011, pp. 108-109. Therefore, under the express terms of
Accordingly, the only notice required to probate the will was to Carter, the
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3
Ms. Wilson had already executed an Irrevocable Power of Attorney naming
Carter her attorney on February 7, 1989. See Power of Attorney appended
to Petition; N.T. 8/1/2011, pp. 10-11, 53.
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only named beneficiary. See 231 Pa.Code § 5.6 (regarding notice required
to probate estates).
We note that, had Rita Wilson died without a will, Logan Michael Curtis
and Zachary Aaron Curtis would have stood to divide her estate per stirpes
principles.4 See 20 Pa.C.S. § 2101 et seq.; 20 Pa.C.S. § 2514. Further, had
a challenge been timely filed, they would have had standing to challenge the
validity of the Will as possible intestate beneficiaries. See 20 Pa.C.S. §
908(a) (a party in interest has one year to appeal probate); 20 Pa.C.S. §
2103 (non-spouse intestate successors). However, in addition to being filed
over a decade after the period in which a challenge to the validity of the Will
5
Instead, the Petition merely takes exception with many of Carte
and actions as Executrix, Trustee, and in her capacity as Power of Attorney
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4
We additionally note that had Peggy Wilson reached the age of forty prior
to her death, the estate would then have passed to her children under anti-
lapse principles. See 20 Pa.C.S. § 2514. However, because Peggy Wilson
died before her fortieth birthday, and the Will provided an alternate
testamentary structure in the event of such death, anti-lapse plays no part
in our determination of this appeal. See Estate of Kehler, 411 A.2d 748,
750 (Pa.1980) (contrary intent that appears with reasonable certainty in will
overcomes operation of the anti-lapse statute); see also 20 Pa.C.S. § 2514.
5
See
validity.
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acting on behalf of Rita Wilson, and requests surcharges and the removal of
Carter as Executrix. See generally, Petition. As non-beneficiaries under
the terms of the Will, Appellants have no standing to bring such challenges.
Appellants properly suggest that, following an appropriate hearing, the
possible remedies for such alleged malfeasance would include surcharging
the executor and/or relieving the named executor of the duties and functions
of the position. See 20 Pa.C.S. § 3182 (removal of executor); In re
for failure to exercise common prudence, common skill and common caution
in the performance of the fiduciary's duty and is imposed to compensate
However, even if they had standing, these remedies would not provide
Appellants relief.
Here, even assuming the alleged malfeasance occurred, surcharging
Carter and requiring her to pay the estate back would serve no purpose: she
part would only have diminished the value of assets to which she was
ulti
mismanagement of the estate, to the extent any actually happened, would
have benefitted or harmed only her own future interest. Otherwise stated,
actions. In any event,
presented establishes that Nancy Carter undertook difficult responsibilities as
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both Executor and Trustee for Edgar Wilson and Rita Wilson and over a
period of 20
February 9, 2012 Order, p. 9; see also generally, N.T. 8/1/2011; N.T.
12/7/2011.
Because we agree with the trial court that Carter was the sole
beneficiary of the Estate of Rita Wilson under the express terms of the Will,6
7
To the
adopt and rely on the well-reasoned September 17, 2013 Pa.R.A.P. 1925(a)
Opinion of the trial court and the February 9, 2012 Order, Findings of Fact,
Conclusions of Law, and Memorandum incorporated by the 1925(a) Opinion
and upon which it is based.8
Order affirmed.
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6
See Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.Super.2013)
This [C]ourt may affirm [the lower court] for any reason, including such
7
to the administration of the Estate of Rita Wilson. We further note that
Carter actually distributed the entire principal of that contested Edgar Wilson
Trust to a third party for the benefit of Logan Curtis and Zachary Curtis,
despite the fact that a portion of this principal should have been distributed
neficiary. See N.T.
8/1/2011, pp. 54-55, 99-100, 103; N.T. 12/7/2011, pp. 18, 46-47, 192-194.
8
be harmless for the reasons stated, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/1/2014
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