J-A13026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF BASIL A. IN THE SUPERIOR COURT OF
MARRYSHOW, DECEASED ** PENNSYLVANIA
FLOY WRIGHT
v.
ESTATE OF BASIL A. MARRYSHOW
APPEAL OF: FLOY WRIGHT, OBJECTOR
No. 1146 WDA 2015
Appeal from the Order entered July 1, 2015
In the Court of Common Pleas of Allegheny County
Orphans' Court at No: 02-11-01997
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 01, 2016
Appellant, Floy Wright, appeals from the order entered on July 1, 2015
in the Orphans’ Court Division of the Allegheny County Court of Common
Pleas, denying her exceptions to the trial court’s February 11, 2015 order.
The February 11 order denied Appellant’s objections to the First and Partial
Account of Karen Marryshow, Executrix of Appellee, the Estate of Basil A.
Marryshow (“the Estate”). Following review, we reverse.
In its February 11, 2015 order, the trial court made the following
Findings of Fact:
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1. On October 5, 1988, the Decedent, Basil A. Marryshow, and
[Appellant] purchased real property located in McCandless,
Allegheny County, Pennsylvania.
2. The Decedent and [Appellant] owned the property as joint
tenants with the right of survivorship.
3. On August 26, 1992, the Decedent and [Appellant] entered
into a written agreement [(“1992 Agreement” or
“Agreement”)] regarding the property.
4. Section XI of the Agreement, “EFFECT OF DEATH OF
PARTIES” states, in part:
If Basil dies at a time when the parties are living together in
the Residential Dwelling, title to the Realty passes to Floy as
an incident of their joint tenancy with right of survivorship,
under and subject to liens and encumbrances for which the
parties are jointly liable. Not later than thirty (30) days
after letters of administration or letters testamentary have
been issued to the personal representative of Basil, such
personal representative shall pay, in full: (1) any person or
entity who or which held a lien against only the interest of
Basil in the Realty (2) any transfer, inheritance or death
taxes due any governmental entity which could be a lien
against the Realty or any part thereof . . . [.]
5. The Agreement was recorded with the Recorder of Deeds of
Allegheny County, at DBV 12605, Page 606.
6. On December 1, 2009, the Decedent executed his Last Will
and Testament that directs in Item II, as follows:
I direct my Executor to pay all inheritance, transfer, estate
and similar taxes (including interest and penalties) assessed
or payable by reason of my death on any property or
interest in property which is included in my estate for the
purposes of computing taxes. My Executor shall not require
any beneficiary under this Will to reimburse my estate for
taxes paid on property passing under this Will.
7. The Decedent passed away on March 15, 2011.
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8. At the time of Decedent’s death, parties were living together
at the McCandless property.
9. On March 29, 2011, Letters Testamentary were issued to
the Decedent’s daughter[, Karen Marryshow].
10. On July 2, 2014, the parties filed a “Statement in Lieu of
Brief” stating that they had reached an agreement as to the
payment of taxes.
11. On July 28, 2014, [Appellant] secured new counsel.
12. On September 12, 2014, [Appellant] filed Objections to the
First and Partial Account.
13. In said objections, [Appellant] raised the Estate’s failure
under the Agreement to pay inheritance tax on the property.
Trial Court Order, 2/11/15, at 1-2.
In her brief, Appellant provides supplemental factual information that
amplifies the trial court’s findings. Specifically, the “Statement in Lieu of
Brief,” referenced in ¶ 10 of the Findings of Fact, was an agreement based
upon the language of Decedent’s Will and this Court’s decision in In re
Estate of Allen, 960 A.2d 470 (Pa. Super. 2008), which held that
inheritance tax on jointly-owned property is the exclusive responsibility of
the surviving tenant, i.e., Appellant in this instance. Appellant’s Brief at 7.
Appellant subsequently secured new counsel who filed objections to the First
and Partial Account filed by the Executrix. In those objections, Appellant
asserted that the existence of the 1992 Agreement raised a contract claim
against the Estate, which was required to pay inheritance tax on the Realty
pursuant to the Agreement. Id.; Findings of Fact, ¶4.
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The Estate countered that Appellant’s objection was barred by the July
2, 2014 agreement memorialized in the Statement in Lieu of Brief, which
reflected that Allen controls and requires the surviving tenant to pay the
inheritance tax on jointly-owned non-probate assets. The Estate also raised
affirmative defenses of res judicata, detrimental reliance, release, bad faith,
and breach of agreement. Appellee’s Brief at 9-17.
The trial court also offered Conclusions of Law in its February 11, 2015
Order. The trial court first set forth the text of 72 P.S. § 9144(f), which
provides that “[i]n the absence of a contrary intent appearing in the will or
other instrument of transfer and except as otherwise provided in this
section, the ultimate liability for the inheritance tax, including interest, shall
be upon each transferee.” Trial Court Order, 2/11/15, at 2.
The trial court determined:
The 1992 Agreement and the Decedent’s Will are clear as to the
Decedent’s intention as to taxes. However, there are no
unambiguous directives in either document that the Executrix
was to use funds from the residuary estate to pay taxes on
property passing outside of the Will. “Put another way, there is
no unambiguous language shifting the tax liability for non-
probate joint property from the surviving tenant to the residual
beneficiary.” In re Estate of Allen, 960 A.2d 470, 472 (Pa.
Super. 2008); See, e.g., In re Estate of Fleishman, 388 A.2d
1077 (Pa. 1978) (tax clause in will directing that all death taxes
be paid out of the principal of the residuary estate overcame
statutory scheme of apportionment of death taxes);
Audenried’s Estate, 376 Pa. 31, 101 A.2d 721 (Pa. 1954)
(same).
Id. at 2-3. Based on its conclusions of law, the trial court overruled
Appellant’s objection and her claim based upon the 1992 Agreement
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between Appellant and the Decedent. By Order entered July 1, 2015, the
trial court denied Appellant’s exceptions to the trial court’s February 11,
2015 order. This timely appeal followed. The trial court did not order the
filing of a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b) and did not issue a separate opinion pursuant to Pa.R.A.P.
1925(a).1
Appellant presents three issues for our consideration:
1. Whether 72 P.S. § 9144(f) is determinative of the issue when
the claim against the Estate arises, not through a Will or
other instrument of transfer, but through a separate,
recorded written Agreement.
2. Whether the Agreement at issue creates a contract claim
against the Estate payable with Estate assets.
3. Whether the objection was barred by res judicata and/or
detrimental reliance.
Appellant’s Brief at 4.
As this Court recently reiterated:
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1
In response to an inquiry from this Court concerning the filing of a Rule
1925(a) opinion, the trial judge responded:
I am writing regarding filing an Opinion in the above appeal.
Pursuant to “Pa.R.A.P.” Rule 1925(a)(1), the place in the record
where the reasons for the entry of the order appealed can be
found, is the Findings of Fact, conclusions of Law and Order of
Court filed on February 11, 2015 (ATTACHED).”
Trial Court Correspondence, 8/20/15, at 1.
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Our standard of review is as follows:
Our standard of review of the findings of an Orphans'
Court is deferential.
When reviewing a decree entered by the Orphans'
Court, this Court must determine whether the record
is free from legal error and the court’s factual
findings are supported by the evidence. Because the
Orphans’ Court sits 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.
In re Estate of Harrison, 745 A.2d 676, 678[] (Pa.
Super. 2000), appeal denied, 563 Pa. 646, 758 A.2d 1200
(2000) (internal citations and quotation marks omitted).
“The Orphans’ Court decision will not be reversed unless
there has been an abuse of discretion or a fundamental
error in applying the correct principles of law.” In re
Estate of Luongo, 823 A.2d 942, 951 (Pa. Super. 2003),
appeal denied, 577 Pa. 722, 847 A.2d 1287 (2003).
In re Estate of Whitley, 50 A.3d 203, 206–207 (Pa. Super.
2012).
This Court’s standard of review of questions of law is de novo,
and the scope of review is plenary, as we may review the entire
record in making our determination. Kripp v. Kripp, 578 Pa.
82, 849 A.2d 1159, 1164 n. 5 (2004). When we review
questions of law, our standard of review is limited to determining
whether the trial court committed an error of law. Kmonk–
Sullivan v. State Farm Mutual Automobile Ins. Co., 746
A.2d 1118, 1120 (Pa. Super. 1999) (en banc).
In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016).
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In her first two issues, Appellant contends that the 1992 Agreement
trumps the provisions of 72 P.S. § 9144(f)2 and this Court’s Allen decision.
As noted above, she asserts that the Agreement gives rise to a contract
claim against the Estate for payment of the inheritance taxes on the Realty.
Because Appellant’s first two issues as presented are interrelated, we shall
consider them together.
Appellant argues that 72 P.S. § 9144(f) is limited to “wills and other
instruments of transfer,” and that the 1992 Agreement is neither of those
things. She contends that the Agreement is a separate contractual
agreement that “simply articulates the rights and obligations of the parties
with respect to their joint interest in the Residence,” as reflected in one of
the recitals to the 18-page Agreement that states, “Floy and Basil intend by
this Agreement to define their respective rights and obligations in and as to
the Realty, which term shall sometimes hereinafter include the Dwelling.”
Appellant’s Brief at 10 (quoting Agreement, 8/26/92, at 2, ¶ I.E.). She
asserts that the Agreement required the Estate to pay the inheritance tax
and that “[t]he Agreement did not modify the law that places the initial
inheritance tax burden upon the Objector but created a separate contractual
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2
Section 9144(f) provides, “In the absence of a contrary intent appearing in
the will or other instrument of transfer . . ., the ultimate liability for the
inheritance tax, including interest, shall be upon each transferee.
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obligation which requires the Estate to pay that tax.” Exceptions to Order
Entered February 11, 2015, 2/27/15, at 5, ¶ 15. We agree.
Without question, absent the Agreement, Appellant would be obligated
to pay the inheritance tax as the surviving tenant. See Allen, supra.
However, the 1992 Agreement clearly reflects the intent of the parties that
the respective personal representative of whichever party died first—if the
parties were cohabitating in the Residential Dwelling—“shall pay, in full . . .
any . . . inheritance . . . taxes [that] could be a lien against the Realty or
any part thereof[.]” Agreement, 8/26/92, at 12-13, ¶ XI (emphasis added).
As Appellant suggests, the statutory language of § 9144(f), imposing
“the ultimate liability for the inheritance tax . . . upon the transferee,” is
limited by its terms to “wills and other instruments of transfer.” 72 P.S.
§ 9144(f). The 1992 Agreement is neither. Moreover, the property in
question did not pass under the Will but, rather, by operation of law as
property jointly held with rights of survivorship, and the obligation to pay
inheritance tax on that property was determined by contract, i.e., the 1992
Agreement. In addition, that Agreement required that any modification or
additional obligation assumed by either party in connection with the
Agreement be in writing and signed by both parties. Agreement, 8/26/02,
at 17, ¶ XVII. No such writing exists and Decedent’s Will, which was not
signed by Appellant, does not constitute a modification of the Agreement.
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The 1992 Agreement is appropriately classified as a contract
concerning succession governed by 20 Pa.C.S.A. § 2701, which provides, in
relevant part, that “[a] contract . . . to make . . . an obligation dischargeable
only at or after death can be established in support of a claim against the
estate of a decedent only by . . . (3) a writing signed by the decedent
evidencing the contract.” 20 Pa.C.S.A. § 2701(a). The Agreement is a
writing signed by the Decedent evidencing a contract that operates to shift
the obligation for payment of inheritance tax from the transferee to the
Estate. Because we find the trial court committed error of law by ignoring
the terms of the 1992 Agreement and finding Appellant liable for inheritance
tax on the Realty, we reverse the trial court’s order and remand for further
proceedings consistent with this Memorandum.3
Order reversed. Case remanded. Jurisdiction relinquished.
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3
Our disposition of Appellant’s first two issues renders her third issue moot.
However, to the extent Appellant asserted her objections were not barred by
the affirmative defenses of res judicata and detrimental reliance raised by
the Estate, we agree. Res judicata does not apply because the cause of
action she espouses arises from a contract, i.e., the 1992 Agreement, rather
than under the Will. Therefore, there is no identity of the cause of action.
Further, the Estate has not demonstrated that it relied to its detriment on
Appellant’s initial misconception that her liability was established by
Decedent’s Will and case law rather than by the 1992 Agreement. Finally,
we reject the Estate’s assertion of bad faith and “unclean hands.” Appellant
did not violate an agreement to terminate litigation. Rather, after agreeing
that the Will imposed liability upon a transferee to pay inheritance tax, she
pursued a contract claim, relying on provisions of the 1992 Agreement that
directed that the Estate pay the inheritance tax on the Realty.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2016
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