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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF KATHRYN S. MCLEOD, IN THE SUPERIOR COURT OF
DECEASED PENNSYLVANIA
v.
APPEAL OF: JOAN Y. SUMMY-LONG AND
JANICE FAUST
No. 1960 MDA 2016
Appeal from the Order Entered November 3, 2016
In the Court of Common Pleas of Dauphin County
Orphans' Court at No(s): 22150133
BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED JULY 31, 2017
Joan Y. Summy-Long and Janice Faust appeal from the November 3,
2016 order dismissing their appeal from the probate of a will. We affirm.
Kathryn S. McLeod died testate on December 18, 2014. On February
9, 2015, the Register of Wills and Clerk of the Orphans’ Court of Dauphin
Court (“Register of Wills”) probated an instrument dated February 19, 2004,
as decedent’s last will and testament and granted letters testamentary to
Nancy McLeod O’Brien, Ms. McLeod’s stepdaughter. Appellants were
decedent’s nieces. The residuary estate was left to the Kathryn S. McLeod
Trust dated February 19, 2004.
* Former Justice specially assigned to the Superior Court.
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The February 19, 2004 trust, which constituted a complete
restatement of a trust agreement dated July 27, 2001, was a living will
whereby Ms. McLeod appointed herself as trustee and retained a life estate.
Upon Ms. McLeod’s death, the settlor’s two stepdaughters, the executrix
Nancy McLeod O’Brien and Jean McLeod Croft, were appointed as successor
co-trustees, and, after some specific bequests, Ms. McLeod distributed the
remaining ninety percent of the trust’s assets to the two stepdaughters.
Appellants each received five percent of the remainder of the trust assets.
After an attorney had entered an appearance on their behalf,
Appellants filed a pro se document, which was directed to the Register of
Wills and indicated that it was being filed to “meet the required legal
deadline of being within one year of probation of the Will and is under
consultation with attorneys at this time.” Request to Register of Wills,
2/8/16, at 1. There is no indication that the document was served on the
executrix. The filing in question did not raise any issues as to the validity of
the will or trust nor did it suggest that the decedent lacked the capacity or
was unduly influenced to execute those February 19, 2004 documents.
Instead, Appellants averred that there was tortious interference with
their inheritance, and they sought subpoenas in order to obtain answers to
“questions regarding the entirety of Kathryn McLeod’s assets” as well as the
disposition of assets held in 1992, 1997, and 1999 trusts created by the
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decedent. On March 9, 2016, the orphans’ court dismissed the untitled
document.
On March 17, 2016, counsel for Appellants filed a Petition to Contest
Probated Will and Trust Agreement. That petition sought discovery to
determine whether all of the decedent’s assets had been located and
whether decedent had executed a will and trust after February 19, 2004.
Appellants also requested copies of any trusts that the decedent executed
prior to 2001.
The executrix filed preliminary objections to the Petition to Contest
Probated Will and Trust Agreement, alleging that it was untimely, did not
state a cause of action in that it did not contain any challenges to the validity
of the February 19, 2004 will and trust, and was incapable of being
answered. As to the latter averment, the executrix noted that the Petition to
Contest Probated Will and Trust Agreement referred to wills and/or trusts
that were supposedly executed after 2004, but that the document failed to
apprise her of any facts that would enable her to locate testamentary
dispositions signed after 2004. The executrix also set forth that, even
though Appellant Summy-Long was the decedent’s power of attorney for the
twenty-five years preceding her death, Appellants did not list any assets that
should have been, but were not, included in either the trust copus or the
estate.
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After Appellants filed preliminary objections to the executrix’s
preliminary objections, the orphans’ court entertained oral argument on
October 17, 2016. On November 3, 2016, it dismissed Appellants’
preliminary objections, granted the executrix’s preliminary objections, and
dismissed with prejudice Appellants’ Petition to Contest Probated Will and
Trust Agreement. The orphans’ court concluded that the appeal from
probate was untimely under 20 Pa.C.S. § 908(a), which is set forth infra,
and that the petition failed to state a claim that actually contested the
validity of the will or trust.
Appellants filed this appeal from the November 3, 2016 order, and
raise these issues:
A. Whether the trial court abused its discretion and committed
an error of law in finding that Petitioners had not properly raised
a claim of fraud on the Register of Wills.
B. Whether the trial court abused its discretion and denied to
Petitioners their procedural due process rights by permitting the
Executrix to raise a statute of limitations defense/argument in
the context of preliminary objections and then failing to permit
Petitioners to address the jurisdictional argument in a
subsequent filing.
Appellants’ brief at 4.1
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1
The order in question is a final order as it denied a petition that purported
to challenge the validity of the probated will and a trust in this matter.
Pa.R.A.P. 342 (a)(2) (“An appeal may be taken as of right from the following
orders of the Orphans' Court Division: . . . An order determining the validity
of a will or trust[.]”).
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Our standard of review in this matter is as follows:
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. 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 Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (citations and
quotation marks omitted).
Section 908 of the Probate, Estates, and Fiduciaries Code provides that
any “party in interest seeking to challenge the probate of a will or who is
otherwise aggrieved by a decree of the register . . . may appeal therefrom
to the [orphans’] court within one year of the decree.” 20 Pa.C.S. § 908(a).
We note that: “[I]n matters of probate, the expiration of the statutory time
limitations generally bars probate of a later will or codicil.” In re Estate of
Peles, 739 A.2d 1071, 1074 (Pa.Super. 1999); Dempsey v. Figura, 542
A.2d 1388 (Pa.Super. 1988). Decedent’s will was probated on February 9,
2015, and Appellants filed their appeal from probate on March 17, 2016,
which is one month late under § 908. There is one exception to the one-
year time bar of § 908, which applies when there is an allegation that the
probate of the will in question was procured by a fraud perpetrated on the
register of wills. Dempsey, supra.
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Appellants do not dispute that their “Petition was filed more than one
year after the granting of letters testamentary on February 9, 2015,” but
they maintain that they “adequately alleged the existence of fraud on the
Register of Wills.” Appellants’ brief at 9. On appeal, their position is that
the “fraud they are alleging stems from the Executrix's failure to include
between $1,000,000 - $2,000,000 in assets of the Estate. This was based
upon Petitioner Summy-Long's personal knowledge[.]” Id. at 12.
Appellants’ averment thus is that there is certain property owned by
the decedent that has not been included in the estate and/or trust assets.
This position is unrelated to whether the trust and will were properly
executed. It likewise does not suggest either that the decedent lacked
testamentary capacity on February 19, 2004, or that she was subject to
undue influence at that time. The averment simply does not raise any valid
challenge to the probate of the will or the integrity of the will or trust, much
less the existence of fraud perpetrated on the register of wills during
probate.
The only documented instance where an untimely appeal from probate
has been entertained is when there was an averment that the probated will
was forged. See In re Kirkander's Estate, 415 A.2d 26 (Pa. 1980); In re
Culbertson's Estate, 152 A. 540 (Pa. 1930). Appellants’ position raises the
specter of fraud upon them, but not upon the Register of Wills in connection
with its decision to probate the document in question as the last will and
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testament of Ms. McLeod. Appellants did not aver forgery, that the
document was procured by duress, or that, on February 19, 2004, the
decedent was an incapacitated person incapable of executing a legal
document. In fact, Appellants do not understand that the failure of the
executrix or the co-trustees to account for assets actually owned by the
decedent can be raised by objections to their accounts. Appellants also have
no inkling of how to conduct discovery, which is not by means of filing an
appeal from the probate of a will. Hence, the orphans’ court did not abuse
its discretion in concluding that § 908 applied and that Appellants had failed
to state a valid cause of action in their Petition To Contest Probated Will and
Trust Agreement.
Appellants’ second averment is two-fold. They first maintain that the
bar of § 908, being a statute of limitations defense, should have been raised
in an answer to their petition and as new matter rather than through means
of preliminary objections. See Pa.R.C.P. 1030 (affirmative defenses, which
include statute of limitations, must be pled in a responsive pleading under
new matter). The orphans’ court construed § 908 as pertaining to subject
matter jurisdiction rather one imposing a statute of limitations, and it ruled
that it could properly be raised in preliminary objections Pa.R.C.P.
1028(a)(1) (preliminary objections may be filed based upon “lack of
jurisdiction over the subject matter of the action or the person of the
defendant[.]”).
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We are constrained to disagree with the orphans’ court’s analysis of
the question. “It is hornbook law that as a pure question of law, the
standard of review in determining whether a trial court has subject matter
jurisdiction is de novo and the scope of review is plenary.” Grimm v.
Grimm, 149 A.3d 77, 82 (Pa.Super. 2016). The question of subject matter
jurisdiction “relates to the competency of the individual court, administrative
body, or other tribunal to determine controversies of the general class to
which a particular case belongs.” Id. at 83 (citation omitted). The orphans’
court had subject matter jurisdiction over whether the Register of Wills
properly probated the document in question as the last will and testament of
the decedent and whether the trust was valid. 20 Pa.C.S. § 711 (1), (3),
and (18) (the orphans’ court division has mandatory jurisdiction over the
administration and distribution of decedents’ estates, the administration and
distribution of property of inter vivos trusts, and appeals from the registers
of wills). We also note that the stricture of § 908 is typically referred to as a
statute of limitations. See Demsey, supra at 1390 (“The applicable Statute
of Limitation for an appeal from the probate of a will is one year. 20 Pa.C.S.
[§] 908.”).
We nevertheless will not reverse and remand to the orphans’ court
merely because it entertained this issue by means of preliminary objections
rather than as a new matter. We apply the reasoning set forth in Cooper v.
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Downingtown Sch. Dist., 357 A.2d 619, 621 (Pa.Super. 1976) (citations
and footnotes omitted):
Although the issue of the expiration of the statute of
limitations is properly raised under new matter, rather than by
preliminary objection, we will reach the merits at this time, in the
interests of judicial economy, for two reasons. First, it was
briefed, argued, and considered in the lower court. Secondly,
once the statute of limitations is raised in new matter, appellee's
right to a judgment on the pleadings, based on the statute of
limitations, will be clear. Therefore, we see no reason to remand
this case for further pleadings.
In the present case, application of the one-year time bar set forth in §
908 was argued and considered in the orphans’ court. It was raised in
Appellants’ brief in opposition to the executrix’s preliminary objections, and
at oral argument. Furthermore, not only was Appellants’ petition untimely,
it did not contain valid grounds for relief in that it raised no challenge to the
validity of the probated will or trust.
On appeal, Appellants contend that property owned by the decedent is
purportedly not being included in the estate and/or trust assets. The
petition was properly dismissed because it was untimely and because it did
not raise any challenge that would provide grounds for voiding either the
probate of the February 19, 2004 will or the trust. There is no need to
remand this matter and waste judicial resources when the outcome would be
the same.
Subpart two of Appellants’ second position on appeal is that they
“should have been granted an opportunity to address the statute of
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limitations argument on a substantive basis following the denial of their
preliminary objection. To refuse to do so violated their procedural due
process rights.” Appellants’ brief at 14. As our Supreme Court observed in
Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013), “In terms of
procedural due process, government is prohibited from depriving individuals
of life, liberty, or property, unless it provides the process that is due. . . .
[T]he basic elements of procedural due process are adequate notice, the
opportunity to be heard, and the chance to defend oneself before a fair and
impartial tribunal having jurisdiction over the case.”
Herein, Appellants were notified of the § 908 time bar to their petition
when the executrix filed preliminary objections. They filed a brief on the
question. At oral argument held on October 17, 2016, Appellants raised
arguments to refute the executrix’s invocation of § 908. N.T., 10/17/16, at
9-10, 14-15. Additionally, the orphans’ court specifically entertained their
position that their appeal from probate was timely under the fraud exception
to § 908. Trial Court Opinion, 11/3/16, at 2. Hence, we conclude that
Appellants had both notice of the § 908 matter and an opportunity to be
heard as to whether it applied. The orphans’ court was fair and impartial.
There was no violation of procedural due process presented in this case.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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