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In Re: Est. of T. Cassidy, Appeal of: Krawczyk, R.

Court: Superior Court of Pennsylvania
Date filed: 2023-06-09
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J-A01039-23

                             2023 PA Super 101


 IN RE: ESTATE OF THOMAS P.               :    IN THE SUPERIOR COURT OF
 CASSIDY, DECEASED                        :         PENNSYLVANIA
                                          :
                                          :
 APPEAL OF: RYAN KRAWCZYK AND             :
 ALEKSANDRA KRAWCZYK                      :
                                          :
                                          :
                                          :    No. 1661 EDA 2022

                Appeal from the Order Entered May 26, 2022
  In the Court of Common Pleas of Bucks County Orphans’ Court at No(s):
                                2020-E0433


BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.

OPINION BY LAZARUS, J.:                                 FILED JUNE 9, 2023

      Ryan Krawczyk and Aleksandra Krawczyk (“Appellants”) appeal from the

order, entered in the Court of Common Pleas of Bucks County, Orphans’ Court

Division, denying their petition for declaratory judgment and granting the

petition for declaratory judgment filed by Mary Duff and Rita Rome

(“Appellees”). Upon careful review, we reverse and remand with instructions.

      The Orphans’ Court set forth the factual and procedural history of this

matter, which is not in dispute, as follows:

      On January 20, 2020, [Thomas P.] Cassidy [(“Decedent”)] passed
      away while a resident of Lower Makefield Township, Bucks
      County[.] Decedent was survived by his three nieces, [Appellees]
      and Barbara Hussein, his nephew[,] Joseph Dougherty, and his
      two former step-grandchildren, [Appellants].

      [Decedent] had previously been married to [Appellants’]
      grandmother, Blandyna Cassidy[ (“Wife”)]; however, the
      marriage ultimately ended in divorce in May 2013. On May 1,
      2013, six days prior to their divorce being finalized, an equitable
      distribution hearing was held before a Bucks County domestic
J-A01039-23


     relations master. Pursuant to the resultant equitable distribution
     agreement, [Wife] received the following assets from [Decedent]:
     (1) fee simple title to the marital residence at 1508 Inverness
     Court, Warrington[;] (2) a payment in the amount of $82,741.00
     to satisfy the existing mortgage on the house in Warrington; and
     (3) annual alimony payments in the amount of $ 1,560.[00.] The
     divorce was finalized by a decree entered twelve days after the
     agreement was finalized. Thereafter[,] on August 13, 2013,
     [Wife] sold the former marital home for $293,000[.00], and she
     received the net proceeds.

     [Decedent’s] Last Will and Testament was drafted in 2009 by S.
     Jerry Weissman, Esquire, a now[-]retired attorney, who was
     licensed to practice for nearly fifty years in the Commonwealth of
     Pennsylvania. On January 30, 2020, [Appellees, who were named
     as co-executrices in the will,] filed a petition for probate and grant
     of letters testamentary with the Register of Wills of Bucks County,
     and offered Decedent’s will for probate. That day, the Register
     of Wills admitted the will to probate and issued letters
     testamentary to the [Appellees].

     On March 20, 2020, [Appellees], through their attorney, Paul L.
     Feldman, Esquire, sent letters to both [Appellants], which stated
     the following:

        Please be advised that the undersigned represents Mary
        Duff and Rita Keegan, in their capacity as co-executrices of
        the Estate of Thomas J. Cassidy. Pursuant to Pennsylvania
        statute we are required to issue notice to each person
        named in a will and each intestate heir of his Estate.

        Although you were named in [Decedent’s] will, it was
        conditioned on the Decedent still being married to your
        grandmother, Blandyna. Since they were divorced at the
        time of his death and she received an equitable portion of
        the marital assets, your bequest is null and void[.]

     On August 25, 2020, [Appellants] filed their petition for citation
     for declaratory judgment to interpret the last will and testament
     of [Decedent] dated April 27, 2009. On September 18, 2020,
     [Appellees] filed their cross[-]petition for declaratory judgment.
     Both petitions requested that the court interpret Article THIRD,
     [section] (b) of the [Decedent’s] will, which is reproduced,
     verbatim, below:



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J-A01039-23


           THIRD: I give, devise and bequeath all the rest, residue
         and remainder of my estate, real and personal as follows:

                                     ***

            b) One-third (1/3) in equal shares to my step-
         grandchildren, in trust and per capita: RYAN KRAWCZYK
         and ALEKSANDRA KRAWCZYK; or in the event that either
         predeceases me or dies within sixty (60) days of my death,
         decedent’s share to my surviving step-grandchild, in trust.
         However, notwithstanding the aforesaid, should my
         Wife, Blandyna Cassidy, either: elect against my Will
         or recover assets from my or our estate in our divorce
         after my death, then I hereby revoke and make null
         and void this bequest of one-third (1/3) of the
         residue of my estate to my step-grandchildren[,] as
         they will inherit from my Wife and her daughter, their
         mother. And, I hereby give, devise and bequeath this one-
         third (1/3) bequest of the residue of my estate in equal
         shares to my nephew and nieces[, Joseph Dougherty,
         Appellees, and Barbara Hussein,] as set forth above in
         Section (a) of this Paragraph Third.

      An evidentiary hearing to adjudicate the cross-petitions for
      declaratory judgment was subsequently held on May 12, 2022.
      On that date, we heard testimony from the [] will’s scrivener,
      [Attorney] Weissman[.      Attorney] Weissman advocated that
      [Decedent’s] bequest to [Appellants] was not voided by
      Decedent’s 2013 divorce from [Wife] and her receipt of assets;
      rather, he asserted that the contested language in Paragraph
      THIRD was a result of Decedent’s concerns over what would have
      happened to his assets if he were to pass away and equitable
      distribution proceedings were to continue after his death.

Orphans’ Court Opinion, 8/31/22, at 2-5 (citations to record and unnecessary

capitalization omitted; emphasis added).

      On May 26, 2022, the court entered an order denying Appellants’

petition and granting the petition filed by Appellees. In doing so, the Orphans’

Court found as follows:




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      [T]he phrase “after my death” is misplaced. In reviewing the
      language of the will, and when read in context with the rest of the
      subsection, the phrase “as they will inherit from my Wife and her
      daughter, their mother[,]” clearly indicates that it was Decedent’s
      intent to void the conditional bequest to his former step-
      grandchildren in the event that [Wife] received benefits either
      pursuant to spousal election against the will or in the divorce
      settlement. It is undisputed that [Wife] did, indeed, receive such
      benefits as part of the couple’s divorce settlement in 2013, seven
      years prior to his death.

      Moreover, as the finder of fact, the [c]ourt was unpersuaded by
      the testimony offered by the will’s scrivener, [Attorney]
      Weissman[.] The scrivener was unable to logically explain the
      meaning of the distribution scheme as the words were written in
      the [Decedent’s will]. . . .

      The scrivener’s testimony failed to provide the court with
      reasonable, understandable explanations for the inclusion of
      certain language within the will. An explanation as to the practical
      application of Article THIRD, []section (b) as it was written was
      essential in order to appropriately assist the court in
      understanding it. Such an explanation was not forthcoming from
      the scrivener. . . .

      As a court [that] is duty[-]bound to apply principles of equity, we
      find that interpreting Article THIRD, []section (b) to be a
      conditional bequest to the former step-grandchildren, which was
      contingent upon their grandmother not receiving benefits from
      Decedent, either through divorce or by election against the will,
      yields an equitable result. Were we to construe [the language] as
      [Appellants] urge, it would afford them a “double-dipping”
      windfall, since they would therefore be permitted to recover assets
      which flowed from [Decedent’s] estate twice; once as a result of
      his will . . ., and a second time when they would inherit
      [Decedent’s] assets either directly from their grandmother,
      [Wife,] or through their mother, [her daughter].

Orphans’ Court Opinion, 8/31/22, at 11-12 (unnecessary capitalization

omitted).

      Appellants filed a motion for reconsideration, which the Orphans’ Court

denied. Appellants filed a timely notice of appeal, followed by a court-ordered


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J-A01039-23



Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. They

raise the following claims for our review:

      1. Did the Orphans’ Court err as a matter of law by improperly
      interpreting [D]ecedent’s will, which unambiguously stated that
      one-third of the residuary estate was for [Appellants] unless his
      soon[-]to[-]be ex-wife was entitled to assets from his estate after
      his death?

      2. Did the Orphans’ Court err as a matter of law by rearrang[ing]
      the words in [D]ecedent’s will to reach a meaning other than its
      plain meaning?

Brief of Appellants, at 4 (unnecessary capitalization omitted; emphasis in

original).

      Our standard for reviewing an Orphans’ Court’s findings is deferential.

In re Estate of Harrison, 745 A.2d 676, 678 (Pa. Super. 2000).

      The findings of a judge of the [O]rphans’ [C]ourt [D]ivision, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate court
      in the absence of an abuse of discretion or a lack of evidentiary
      support. This rule is particularly applicable to findings of fact
      [that] are predicated upon the credibility of the witnesses, whom
      the judge has had the opportunity to hear and observe, and upon
      the weight given to their testimony. In reviewing the Orphans’
      Court’s findings, our task is to ensure that the record is free from
      legal error and to determine if the Orphans’ Court’s findings are
      supported by competent and adequate evidence and are not
      predicated upon capricious disbelief of competent and credible
      evidence.

In re Estate of Warden, 2 A.3d 565, 571 (Pa. Super. 2010) (citation

omitted).

      Here, Appellants challenge the court’s construction of Decedent’s will.

This Court has previously determined:



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J-A01039-23


      The testator’s intent is the polestar in the construction of every
      will and that intent, if it is not unlawful, must prevail. Also, we
      must focus on the precise wording of the will and view the words
      of the will in the context of the overall testamentary plan. We
      give effect to word and clause where reasonably possible so as
      not to render any provision nugatory or mere surplusage.
      Additionally, we are not permitted to determine what we think the
      testator might or would have desired under the existing
      circumstances, or even what we think the testator meant to say.
      Rather, we must focus on the meaning of the testator’s words
      within the four corners of the will. Finally, a court may not rewrite
      an unambiguous will.

In re Wilton, 921 A.2d 509, 513 (Pa. Super. 2007) (citations, quotations and

brackets omitted).

      In order to ascertain the actual intent of the settlor or testator,
      the Court must place itself in his armchair and consider not only
      the language and scheme of the instrument but also the facts and
      circumstances with which he was surrounded; and these
      surrounding facts and circumstances include the condition of his
      family, the natural objects of his bounty and the amount and
      character of his property.

Estate of Pew, 655 A.2d 521, 534 (Pa. Super. 1994).

      Generally speaking, “[a]n ambiguity in a will must be found without

reliance on extrinsic evidence; extrinsic evidence is admissible only to resolve,

not create, an ambiguity.” In re Estate of Harper, 975 A.2d 1155, 1162

(Pa. Super. 2009) (citation omitted).     “There are two types of ambiguity:

patent and latent.”   In re Estate of Schultheis, 747 A.2d 918, 923 (Pa.

Super. 2000) (citation omitted).     This Court has described the difference

between patent and latent ambiguity as follows:

      A patent ambiguity appears on the face of the document and is a
      result of defective or obscure language. A latent ambiguity arises
      from collateral facts which make the meaning of a written
      document uncertain, although the language appears clear on the

                                      -6-
J-A01039-23


      face of the document.      To determine whether there is an
      ambiguity, it is proper for a court to hear evidence from both
      parties and then decide whether there are objective indications
      that the terms of the document are subject to differing meanings.

      Where a latent ambiguity exists[,] we have repeatedly held that
      parol evidence is admissible to explain or clarify the ambiguity,
      irrespective of whether the latent ambiguity is created by the
      language of the will or by extrinsic or collateral circumstances.
      Where a latent ambiguity exists, the court may resort to parol
      evidence (such as testimony of the scrivener) to determine the
      decedent’s true intent. One limitation to the foregoing is that
      extrinsic evidence of surrounding facts must only relate to the
      meaning of ambiguous words of the will. It cannot be received as
      evidence of the testator’s intention independent of the written
      words employed.

Id. (citations, quotations and brackets omitted).      Conversely, “[w]here a

patent ambiguity exists on the face of the [w]ill and the language is

meaningless or senseless or so uncertain as to be unintelligible as written,

parol evidence to explain it is not admissible.” Beisgen’s Estate, 128 A.2d

52, 55 n.3 (Pa. 1956).

      Here, Appellants argue that section (b) of Article THIRD is unambiguous

and that the Orphans’ Court erred by considering extrinsic evidence and,

essentially, rewriting Decedent’s will. Appellants assert that

      “[A] transposition of words may be used to clarify the intent of the
      testator but not to determine the intent when such intent cannot
      otherwise be found.” In re Connor’s Estate, 29 A.2d 514, 516
      (Pa. 1943). In other words, a court can only rearrange words in
      a will to clarify an already existing meaning, but may not do so to
      give the document a new meaning. Id. “A court may not,
      however, under the guise of construction or under general powers
      of equity assume to correct or redraft the will in which the testator
      has expressed his intentions.” In re Thompson Estate, 327
      A.2d [31, 34 (Pa. 1974)]. To engage in such rewriting[] “would
      be making, not interpreting, [a] will.” In re Connor’s Estate, 29
      A.2d at 516.

                                      -7-
J-A01039-23



Brief of Appellants, at 23.

      Even if the court did not err by taking testimony from the scrivener,

Appellants assert that the court improperly disregarded that testimony, which

was “completely coherent.” Brief of Appellants, at 19. Appellants argue:

      [Attorney Weissman] testified repeatedly that [D]ecedent’s
      concern was that he would pass away during the pendency of his
      divorce. Foremost, [D]ecedent was afraid that if he should die,
      he would not have control over the assets of his estate that [Wife]
      would take. However, [D]ecedent lived through the conclusion of
      his divorce in 2013, and so was able to have his say in the couple’s
      property settlement agreement. [D]ecedent knew what [W]ife
      had received in their divorce, and was also aware that she was
      not entitled to assets from his estate following his death.
      Therefore, he intended for the [Appellants] to inherit one-third of
      his residua[ry] estate. Following his divorce, [D]ecedent lived for
      seven more years, but never changed his will.

Id. at 19-20 (emphasis in original; unnecessary capitalization omitted).

      Appellants further argue that the Orphans’ Court’s interpretation of the

will “undermines logic.” Id. at 23.

      The court concluded that [D]ecedent intended [Appellants] to not
      receive 1/3 of his residua[ry] estate if [Wife] “recover[s] assets
      from my or our estate in our divorce.” However, at the time the
      will was executed, [D]ecedent was in the middle of an ongoing
      divorce—it goes without saying that in the divorce proceedings,
      [Wife] was going to receiv[e] some property “from my or our
      estate.” Therefore, if the [Orphans’ Court’s] reading is adopted,
      then [D]ecedent knew at the time the [w]ill was drafted that his
      bequest to [Appellants] would be void.           This is farfetched.
      Instead, it is more logical that [D]ecedent was only concerned
      with [Wife] receiving assets from his estate “after his death”—this
      is what the will clearly says, and also what the [scrivener] testified
      [D]ecedent meant.

Id. at 23-24 (unnecessary capitalization omitted; emphasis in original).




                                      -8-
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      In response, Appellees assert that the Orphans’ Court properly found

that the phrase “after my death” in Article THIRD, section (b) “was inserted

in the wrong place in the will. Rather than following the phrase ‘in our divorce,’

it should have been inserted after the phrase which precedes it, ‘elect to take

against my will.’” Brief of Appellees, at 10-11. Appellees argue that

      [i]t is not logical that [Decedent] would condition the bequest on
      the timing of his death, with the result being that if [Wife] received
      the divorce settlement assets during his life, then the bequest
      stands, but if she received the divorce settlement assets after his
      death, then the bequest is void.

Id. at 11.

      We are constrained to conclude that, while the Orphans’ Court properly

admitted parol evidence to aid in its interpretation of Decedent’s will, it

improperly   disregarded    that   evidence   and,   instead,   engaged   in   the

impermissible redrafting of the Decedent’s will.      As noted above, extrinsic

evidence is admissible in the case of a latent ambiguity, “irrespective of

whether the latent ambiguity is created by the language of the will or by

extrinsic or collateral circumstances.” In re Estate of Schultheis, 747 A.2d

at 923 (finding latent ambiguity in language bequeathing “my shares of stock”

because it was unclear whether phrase referred only to 2,045 shares

specifically referenced in will or to all 3,288 shares owned by decedent time

of death). Here, the language in question, while clear on its face, becomes

ambiguous when read in the context of Decedent’s circumstances at the time

he drafted his will. Specifically, read together, the language “after my death”

and “as they will inherit from my Wife and her daughter, their mother,” are

                                      -9-
J-A01039-23



rendered ambiguous in light of Decedent’s pending divorce at the time he

drafted the will, as Appellants would inherit from Wife and/or her daughter

whether Wife received the assets prior to or after Decedent’s death.

Accordingly, the admission of the scrivener’s testimony was proper.              See

Estate of McKenna, 489 A.2d 862, 867 (Pa. Super. 1985) (where language

of testator is unimpeached, but equivocal or ambiguous, scrivener’s testimony

as to testator’s intent admissible for purposes of interpretation).

      Having taken that testimony, however, the court proceeded to

completely disregard it and to engage in the impermissible redrafting of the

Decedent’s will to achieve what it believed to be the “equitable” result.

However, “[c]ourts cannot . . . rewrite a . . . testator’s will, or distort or torture

his language . . ., in order to attain what we believe is beneficial and wise[.]”

In re Brown’s Estate, 183 A.2d 307, 310 (Pa. 1962).

      Here, the court did not find the scrivener’s testimony incredible. See

In re Estate of Warden, supra (this Court bound by Orphans’ Court’s

credibility determinations where supported by record).           Rather, the court

concluded that the scrivener, Attorney Weissman, “was unable to logically

explain the meaning of the distribution scheme” contained in Decedent’s will.

Orphans’ Court Opinion, 8/31/22, at 11.            However, upon our review of

Attorney Weissman’s testimony, we conclude that the court’s determination is

not supported by the record, as we had no difficulty in understanding the

Decedent’s clear intent as elucidated by the scrivener.




                                       - 10 -
J-A01039-23



      At the hearing held on May 12, 2022, Attorney Weissman testified that

he had represented the Decedent for twelve to fourteen years and considered

him to be not only a client, but a friend. See N.T. Hearing, 5/12/22, at 10-

11. Attorney Weissman stated that, at the time Decedent drafted his will,

“[t]he divorce had not yet been settled, which is the reason why that

complicated paragraph is in existence.”      Id. at 13.   Attorney Weissman

testified that “[Decedent] and I worked on that wording by telephone, in

person[,] and by letter. It was very carefully put down by the both of us.”

Id. at 15-16.      He stated that there were no typographical errors in the

document or missing words and that there were no “concerns that words were

out of place[.]”   Id. at 16. On direct examination by Appellants’ counsel,

Attorney Weissman explained the Decedent’s intent behind Article THIRD,

section (b) as follows:

      Q: [] I come now to the second page of this [Article] Third[,
      subsection] (b), I’d like to draw your attention to where it says,
      [“]however, notwithstanding the aforesaid, should my wife,
      Blandyna [] Cassidy, either, colon.[”] Do you see that?

      A: Yes. Well, I’ll look, but I know what you’re speaking of.

      Q: Then it has two clauses connected by an [“]or.[”] I’d like to
      discuss each one of those with you in turn.

      A: Yes.

      Q: First it says, [“]elect to take against my will.[”] What [were]
      [Decedent’s] intentions regarding that qualification?

      A: Well, they were not yet divorced, and he was much older; and
      if he passed away, he couldn’t control what the divorce would be.
      She could take—there’s a phrase called [“]taking against the



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        will.[”1] That would be one exception. If she took against the will,
        he wanted to nullify [the] gift to the grandchildren.

        Q: Now, when you made [] the comment just then, you said, he
        couldn’t control the divorce—I think that’s what you said—if he
        were to die.

        A: Yes. He couldn’t control the assets she might take.         They
        weren’t yet divorced.

        Q: Okay. Understood. Then after the [“]or[”] we have another
        clause that reads: [“r]ecover assets from my or our estate in our
        divorce after my death.[”] Do you see that?

        A: Oh, yes.

        Q: What [were Decedent’s] intentions regarding [] that condition?

        A: This will was executed in 2009. I believe that maybe four
        years prior, there was an amendment to the Divorce Code[2] which
        said basically that if grounds were established, meaning both
        parties file a [section] 3301(c) affidavit agreeing to a divorce, or
        if one party files a [section] 3301(d) affidavit [alleging] two-year
        separation, and so grounds are established for the divorce, that if
        one party passes away—[Decedent] was worried that would be
        him—the other party could continue the equitable distribution


____________________________________________


1  Section 2203 of the Probate, Estates, and Fiduciaries (“PEF”) Code
establishes a surviving spouse’s “right of election,” which entitles the surviving
spouse to the “elective share,” a one-third allotment of enumerated categories
of the deceased spouse’s property. 20 Pa.C.S.A. § 2203(a).

2   Section 3323(d.1) of the Domestic Relations Code provides as follows:

        (d.1) Death of a party.--In the event one party dies during the
        course of divorce proceedings, no decree of divorce has been
        entered and grounds have been established as provided in
        subsection (g) [(referencing section 3301)], the parties’ economic
        rights and obligations arising under the marriage shall be
        determined under this part rather than under 20 Pa.C.S. (relating
        to decedents, estates and fiduciaries).

23 Pa.C.S.A. § 3323(d.1).


                                          - 12 -
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      matter, and [Decedent] would be gone, so in the same sense he
      couldn’t control what Blandyna would take.

      And he—not in a nasty way. He just said, look, if she takes more
      than I know of, these [] grandchildren get it from her estate or
      her daughter’s estate. That was his thinking. And that’s what I
      tried to write down.

      Q: [A]m I correct that his concern was that if he died during the
      divorce proceedings, he wanted to make provision for that?

      A: Exactly right. And [if] she also continued the [equitable
      distribution]. Yes, that’s what that’s about.

Id. at 17-19.

      Attorney Weissman further clarified Decedent’s intent on cross-

examination:

      Q: Well, then why was that language, the latter part of that
      sentence, why was that language even included in the will? [“]As
      they will inherit from my wife and her daughter, their mother.[”]
      Why was that even put in the will? What was the purpose of that?

      A: Because of [Decedent’s] kindness. He was a kind person, and
      he wanted [them] to know that it wasn’t bitterness on his part,
      that they would—if she took more than he approved after he was
      gone, he felt they eventually would get that money.

Id. at 28.

      In our view, Attorney Weissman’s testimony was clear and made logical

sense. Decedent was concerned that, were he to die before his divorce was

concluded, he would have no control whatsoever over what Wife might take

from his estate, either in equitable distribution or by taking against his will

under the PEF Code. Anticipating that she might, under those circumstances,

receive more than he would have wished, he nullified Appellants’ bequest in

the event either one of those circumstances came to pass. Moreover, not



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J-A01039-23



wishing Appellants—of whom he was “extremely fond,” id. at 17—to read any

bitterness or rancor into the potential revocation of their bequest, Decedent

included language explaining that they would still receive assets from his

estate through their grandmother and/or mother.

      Moreover, as Appellants point out, were we to accept the Orphans’

Court’s interpretation—or, more precisely, rewriting—of the Decedent’s will,

the result would be nonsensical, as the bequest to Appellants would have been

void ab initio. In the view of the Orphans’ Court, Decedent intended for the

relevant portion of Article THIRD, section (b), to read as follows:

      However, notwithstanding the aforesaid, should my Wife,
      Blandyna Cassidy, either: elect to take against my Will [after my
      death] or recover assets from my or our estate in our divorce [],
      then I hereby revoke and make null and void this bequest of one-
      third (1/3) of the residue of my estate to my step-grandchildren
      as they will inherit from my Wife and her daughter, their mother.

Orphans’ Court Opinion, 8/31/22, at 10 (emphasis in original). However, at

the time he executed his will, Decedent would have known that Wife would,

to one extent or another, “recover assets from my or our estate in our

divorce.”   See Estate of Pew, 655 A.2d at 534 (court must place itself

armchair of testator and consider not only language and scheme of will but

also facts and circumstances with which he was surrounded). To conclude

that Decedent “very carefully,” N.T. Hearing, 5/12/22, at 15-16, included

Article THIRD, section (b), knowing it to be entirely inoperative from the

moment of its drafting, would lead to an absurd result that Decedent could

not possibly have intended.


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      Finally, we note that Decedent lived on for nearly seven years after the

conclusion of his divorce proceedings.      Thus, he had ample opportunity to

revise his estate plan, had his concern been that Appellants should not be

entitled to “double-dipping,” as the Orphans’ Court concluded. The fact that

he did not draft a codicil or subsequent will revoking the bequest to Appellants

following the conclusion of equitable distribution is indicative of his satisfaction

with the existing will. See In re Kirchner’s Estate, 20 A.2d 310, 312 (Pa.

1941) (where, despite changed circumstances, testator does not alter will,

failure to do so “significant” indicia of intent to maintain original dispositive

scheme).

      Accordingly, we conclude that the only reasonable interpretation of

Article THIRD, section (b) is that Decedent meant exactly what he said in

revoking the bequest to Appellants only in the event that Wife (1) elected to

take against his will pursuant to section 2203 of the PEF Code or (2) recovered

assets from his or their estate after his death pursuant to section 3323 of the

Domestic Relations Code. Accordingly, we reverse the order entered by the

Orphans’ Court and remand for the entry of an order consistent with the

dictates of this opinion.

      Order     reversed;   case   remanded    with   instructions.    Jurisdiction

relinquished.




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J-A01039-23




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2023




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