J-A18027-17
2017 PA Super 287
IN RE: ESTATE OF JOHN BRUMBAUGH IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: JUDY MCCLINTOCK
No. 154 WDA 2017
Appeal from the Order of December 21, 2016
In the Court of Common Pleas of Bedford County
Orphans' Court at No(s): 26 for 2016
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
OPINION BY LAZARUS, J.: FILED SEPTEMBER 6, 2017
Judy McClintock appeals from the order entered in the Court of
Common Pleas of Bedford County, Orphans’ Court Division, sustaining
Appellee Marjorie Brumbaugh’s appeal from the Register of Wills. Upon
careful review, we affirm.
John Brumbaugh (“Decedent”) died on November 7, 2015. At the time
of his death, he resided with McClintock, with whom he had been
romantically involved for over nine years. Letters of Administration were
issued to Decedent’s mother, Marjorie Brumbaugh, on November 12, 2015.
On January 15, 2016, McClintock filed a petition before the Register of Wills
seeking to probate a document dated March 22, 2015 and purporting to be a
photocopy of Decedent’s last will and testament. McClintock claimed to have
found the document in the Decedent’s zippered bank pouch, in which he
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kept his important papers. Brumbaugh opposed the petition, but, on May 4,
2016, the Register issued a decision admitting the document to probate as
the Decedent’s will and revoking Brumbaugh’s Letters of Administration. In
her decision, the Register stated as follows:
The document produced by Ms. McClintock and purported to be
the decedent’s Will was notarized by Dorothy E. Lykins, formerly
Dorothy E. Hilton, a notary public in the state of Ohio. She also
serves as the Clerk of Courts for the City of Franklin Municipal
Court in Franklin, Ohio. Ms. Lykins confirmed the subject Will
was signed by the decedent in front of her and the Will sought to
be admitted to probate was in fact the one signed by the
decedent. She also explained the circumstances involving his
execution of the Will and the type of writing instrument he used.
No handwriting expert testified before me on [McClintock’s]
behalf so as to give an opinion contesting the Will or the
decedent’s signature thereon.
Per the document admitted into evidence, the testimony
presented to me at the hearing, including the Affidavit of Ms.
Lykins, and my telephone conversation with Ms. Lykins, it
appears that such document is the decedent’s Last Will and
Testament and was intended so to be.
Decision of the Register of Wills, 5/4/16, at [2].
Brumbaugh filed an appeal to the Orphans’ Court1 asserting that the
Register improperly admitted the photocopy to probate, absent the requisite
proof that the original had not been revoked and/or destroyed. Brumbaugh
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1
A hearing on appeal to the Orphans’ Court from a decision of the Register
of Wills is de novo, unless the parties have agreed otherwise. See 20
Pa.C.S.A. § 776; In re Estate of Luongo, 823 A.2d 942, 960 (Pa. Super.
2003). In a hearing de novo, the Orphans' Court does not base its decision
on the testimony offered before the Register, but hears all evidence that
either party desires to present and makes its own credibility determinations.
Luongo, supra.
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argued that the Register improperly relied on an affidavit signed by the
notary, despite her repeated objections to the admissibility of the statement.
Brumbaugh also asserted that the Register’s decision was based, in part, on
an improper ex parte conversation with the notary. Brumbaugh argued that
the document was either forged or altered and that neither the proponent
nor the Register permitted her to submit it to a document examiner for
analysis prior to the Register rendering its decision.
The Orphans’ Court held hearings in the matter on August 25, 2016
and October 7, 2016, at which time it heard the testimony of, inter alia,
McClintock, Lykins and Khody Detwiler, a document examiner. On
December 21, 2016, in open court, the court rendered its decision,
concluding that McClintock had failed to sustain her burden of proving that
the original will was not revoked by the testator. Specifically, the court
found that McClintock failed to prove that the contents of the original will
were substantially as appeared on the copy of the will presented for probate.
Accordingly, the Orphans’ Court reversed the order of the Register and
directed that the probate of the document in question be vacated.
McClintock filed a timely appeal, in which she raises the following issue for
our consideration:
Did the Orphans’ Court below err in reversing the decision of the
Register of Wills, which had admitted to probate the document at
issue at the Last Will and Testament of John Edward Brumbaugh,
on the basis it could not so qualify because of the photostatic
nature of its non-notarial content, given the circumstances
present?
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Brief of Appellant, at 4.
We begin by noting our scope and standard of review on appeal from a
decree of the Orphans' Court adjudicating an appeal from probate:
[T]he hearing judge determines the credibility of the witnesses.
The record is to be reviewed in the light most favorable to
appellee, and review is to be limited to determining whether the
trial court’s findings of fact were based upon legally competent
and sufficient evidence and whether there is an error of law or
abuse of discretion. Only where it appears from a review of the
record that there is no evidence to support the court’s findings or
that there is a capricious disbelief of evidence may the court’s
findings be set aside.
In re Estate of Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014), quoting In re
Bosley, 26 A.3d 1104, 1107 (Pa. Super. 2011) (internal citations omitted).
Here, the document submitted for probate was not an original will, but
a photocopy.2 Where a testator retains the custody and possession of his
will and, after his death, the will cannot be found, a presumption arises that
it was revoked or destroyed by the testator. In re Estate of Murray, 171
A.2d 171, 176 (Pa. 1961). In order to establish the existence of a lost will
which was in the custody of the testator prior to his death, the proponent of
the will must overcome the presumption that the testator destroyed or
revoked the will. Burns v. Kabboul, 595 A.2d 1153, 1167 (Pa. Super.
1991), citing In re Estate of Keiser, 560 A.2d 148, 151 (Pa. Super. 1989).
In order to overcome the presumption and establish the existence of a lost
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2
The only portion of the document that was not photostatic in nature was
the notarial act.
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will, the proponent of the copy must prove that: (1) the testator duly and
properly executed the original will; (2) the contents of the will were
substantially as appears on the copy of the will presented for probate; and
(3) when the testator died, the will remained undestroyed or revoked by
him. In re Estate of Janosky, 827 A.2d 512, 519–20 (Pa. Super. 2003).
The proponent’s evidence must be positive, clear and satisfactory. In re
Estate of Murray, 171 A.2d at 176.
Here, the Orphans’ Court concluded that McClintock failed to prove the
second prong of the test, i.e., that the contents of the photocopied will were
substantially the same as the original document. In arriving at this
conclusion, the court relied primarily on the testimony of two witnesses:
Detwiler, the forensic document examiner, whose testimony the court found
credible, and Lykins, the notary, whose testimony the court found not
credible. A brief summary of these witnesses’ testimony is in order.
Dorothy Lykins is a notary from Franklin, Ohio. Lykins’ husband, Jeff,
is the owner/operator of a trucking company. Decedent served as Jeff’s
dispatcher, acquiring loads for him to haul. Although Lykins had never met
Decedent prior to the execution of his will, she stated that she had
previously notarized documents for him. Lykins testified that, on March 22,
2015, Decedent called her husband’s cell phone and asked if Lykins could
come to Zanesville, Ohio – approximately three hours away – to notarize his
will. Lykins agreed and rode to Ohio with Jeff in his semi-truck. The couple
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met Decedent at AK Steel in Zanesville, where Jeff was also picking up a
load of steel.
Lykins testified that she, Jeff and Decedent then drove to the parking
lot of a nearby truck stop. Lykins stated that, by that time, it was “late
evening, early morning” and it was dark. N.T. Trial, 10/7/16, at 21. She
testified that the Decedent “held up a document and indicated that that was
his Will that he wanted me to [n]otarize for Judy.” Id. at 22. She asked
him for his driver’s license and he provided her with a state I.D. Lykins
indicated that she was familiar with Decedent’s signature because she
deposited the checks with which Decedent paid her husband. She stated
that she notarized the document and took a photograph of it with her cell
phone. Lykins testified that she did not actually see the Decedent write or
sign the will, but that she had seen him strike out the misspelled name of
Muskingum County and handwrite the correctly spelled name on the
document. Lykins testified that she had provided a copy of the photograph
she took of the executed will to McClintock’s counsel after Decedent’s death.
However, she had since obtained a new phone and had lost access to the
original picture.
On cross-examination, Brumbaugh’s counsel raised certain
discrepancies between Lykins’ in-court testimony and the affidavit she had
previously prepared for submission to the Register of Wills. Notably,
although Lykins had testified at trial that the only word she actually
witnessed the Decedent hand-write on the will was the correction for
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Muskingum County, her affidavit stated that Decedent “complet[ed] and
sign[ed] the document in his own hand” and that “[i]mmediately prior to
signing his name he wrote the name of Judy McClintock.” Affidavit of
Dorothy E. Lykins, 2/4/16.
Khody Detwiler also testified. Detwiler has been employed as a
forensic document examiner since 2008. Based upon toner particles present
on the document, Detwiler concluded that, while the notarial act contained
on the document was original, “[t]he printed text in the body of the
document as well as the signature of John Brumbaugh is a photocopy
reproduction[.]” N.T. Trial, 8/25/16, at 59-60. Detwiler also concluded that
the name “Judy McClintock” in the center portion of the document – that
portion of the document that purports to dispose of “[a]ll other money and
properties” belonging to the Decedent, see Purported Will, 3/22/15 – was
also a photocopy reproduction and not original ink. See N.T. Trial, 8/25/16,
at 61. Detwiler noted an extraneous mark attached to the name “Judy
McClintock,” as well as “trash marks”3 surrounding the name, which can only
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3
A “trash mark” or “artifact” results from repeated reproduction of a
document. Detwiler testified as follows:
[B]asically when you have artifacts on the document, it comes
from the copying process when the document is copied over and
over and over and over. Again, different machines, whether or
not it’s scanned, sent in an E-mail, and then printed out, and
then copied again.
(Footnote Continued Next Page)
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be found in that particular portion of the document. Detwiler testified that
“if [the] document was all created at the same exact time, you would expect
those trash marks to be everywhere else as well.” Id. at 63. Detwiler
concluded that “having this many artifacts around that particular portion,
and nowhere else, I can’t eliminate the possibility that that didn’t come from
a separate document, and was incorporated into this document.” Id. at 65.
In other words, Detwiler could not rule out that McClintock’s name had been
cut and pasted into the document.
Detwiler also noted peculiarities in the document’s layout. In
particular, Detwiler testified:
[T]he thing that really really strikes me is the very last, almost
full line of printed text, there’s a very large void at the end of
the line. But then when you look right beneath it, the name
Judy McClintock is indented almost an inch, and it’s also
squeezed right up against the bottom of the last line.
...
If you look at – for example the vertical spacing between each
line, it’s fairly consistent as you go up the page.
_______________________
(Footnote Continued)
If it’s faxed, you’re going to pick up marks. You’re going to pick
up marks from the machine, whether or not there’s a mark on
the drum, a mark on the glass. That they get put on the
document, and then they get copied again over and over and
over.
The other thing that can create trash marks is if the document
isn’t perfectly flat on the glass when you’re making a photocopy.
N.T. Trial, 8/25/16, at 64.
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But it’s not consistent here between the name Judy McClintock
and the last full line. Now if you look at the left and right
margins. Again, you see that the writer goes essentially the
whole way from the left to the right. And every single sentence,
except for the last one, they stop short. And then all of a
sudden the Judy McClintock name, is indented almost an inch.
And then it’s just the name squeezed in.
Id. at 70, 72.
Detwiler further testified that the correction of the spelling of
Muskingum County was also a photocopy reproduction and not originally
written on the paper. Detwiler concluded this based on the fact that “there’s
no bleed through on the back of the document which you would expect to
find. There’s no impressions or indentations here [under the word
“Muskingum”], but you can feel them [w]here there is original writing.” N.T.
Trial, 10/7/16, at 109. Detwiler also noted toner deposits around the
corrected word “Muskingum.” Detwiler concluded that he “[a]bsolutely” had
questions about the validity of the document. N.T. Trial, 8/25/16, at 73.
McClintock concedes that the will is a copy. However, she speculates
that the Decedent, himself, “made a copy, either at the steel company site
or at the convenience store, of the original document first shown at the steel
site to [Lykins], and that he substituted the photocopy for the original as a
less messy and clearer representation of his Will for her to notarize[.]” Brief
of Appellant, at 8. McClintock argues that Detwiler, the document examiner,
“did not testify that any ‘doctoring’ had in fact occurred in reproducing the
document from the original.” Id. at 11 (emphasis in original).
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McClintock asserts that this matter is controlled by our Supreme
Court’s decision in Estate of Ervien, 233 A.2d 887 (Pa. 1967). There, the
decedent and her husband executed wills on the same day with virtually
identical dispositive provisions. Decedent’s husband predeceased her,
leaving her his share of his family business, which in turn formed the bulk of
decedent’s estate upon her own death. Prior to her death, and in the course
of moving from her house to an apartment, decedent, who had weak
eyesight and was extremely careless about her personal effects, had gone
through her personal papers and disposed of a great deal of trash. Following
her death, an unsigned copy of her will was located in an envelope also
containing an unsigned copy of her husband’s will, her apartment lease, and
other printed material given to her by her landlord. The envelope was
addressed to her brother-in-law, whose daughter and grandson were the
beneficiaries of decedent’s will. The envelope was found in a desk drawer on
which decedent’s brother-in-law had placed a lock to help decedent
“preserve her things from her carelessness.” Id. at 889 (Roberts, J.,
dissenting).
Following the decedent’s death, the Register of Wills of Montgomery
County refused to probate the unsigned copy of the decedent’s will. After a
hearing de novo, the Orphans’ Court reversed and ordered that the
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document be admitted to probate. The lower court’s reasoning was
summarized by Justice Roberts in his dissent4 as follows:
From the fact that no less than a year before her death
[decedent] placed the unsigned copy of her will in the same
envelope with a copy of her husband’s will and with her lease,
the orphans’ court concluded that she deemed it of great value
at that time. Then the court proceeded to reason that
[decedent] could hardly have considered the copy of her will to
be of value if she had destroyed the original [a]nimo revocandi.
In addition, the opinion of the court seems to suggest that
[decedent’s] poor eyesight, carelessness and moving explain the
absence of the will from her effects and that the source of her
property[, i.e., her husband’s family business,] the situation in
which she made her will[, i.e., at the same time as her husband
and with virtually identical dispositive provisions,] and her
relationship to [her brother-in-law] make it unlikely that she
would have deliberately acted to prevent her estate from passing
to [her brother-in-law’s] descendants.
Id. The Supreme Court, without explication, affirmed the decision of the
Orphans’ Court.
McClintock analogizes the instant matter to Ervien, as she testified to
having found the purported will with Decedent’s other valuable papers.
McClintock asserts:
The same question asked in Ervien should be asked in this case.
If [Decedent] destroyed the original of his Will with the intent of
revoking it, why would he have preserved the document at issue
for more than 7½ months after its notarization until his death?
Like the decedent in Ervien, he kept it together with other
financial items in one contained enclosure which he carried with
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4
The majority’s brief opinion discusses neither the evidence adduced in the
Orphans’ Court nor the applicable law. Rather, the Court simply noted its
review of the record and concluded there was no abuse of discretion by the
lower court. Accordingly, we rely on the facts recited in the dissent.
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him in going from location to location. In this case, unlike in
Ervien, those other items were current by their very nature,
i.e. his checkbook with blank checks and registers. Why should
the document at issue be assigned any different character as to
its nature?
Brief of Appellant, at 21 (emphasis in original).
This argument, however, misses the mark. In particular, it assumes
that the Orphans’ Court found credible McClintock’s claim that she
discovered the alleged will with Decedent’s other important documents.
Indeed, the court found just the opposite:
I understand that Ms. McClintock’s testimony that she found the
will with the decedent’s other important documents is important
evidence and I do consider that. But I do not find it to be
especially credible given the other circumstances
surrounding the will[.]
N.T. Findings of Fact and Conclusions of Law, 12/21/16, at 12. Based upon
the foregoing, it is apparent that the court did not, in fact, believe that
McClintock discovered the photocopied document amongst the Decedent’s
important papers, and, thus, the holding in Ervien garners McClintock no
relief.
McClintock also argues that the court erred in relying on document
examiner Detwiler’s testimony to conclude that the document in question
was doctored or fraudulently altered. McClintock asserts that, in fact,
Detwiler testified that his examination was “inconclusive” as to whether the
document had been altered. This argument mischaracterizes both Detwiler’s
testimony and the burden of proof applicable to McClintock in this matter.
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In order to probate a copy of a lost will, the proponent must overcome
the presumption that the testator destroyed or revoked the will by positive,
clear and satisfactory evidence. Estate of Murray, supra. While Detwiler
did testify that his examination of the document was inconclusive, it does
not follow that the trial court committed error by relying on his testimony to
conclude that the burden as to the second prong of that test – that the
contents of Decedent’s will were substantially as appears on the copy of the
will presented for probate – had not been met. Detwiler testified that,
because the document he examined was a photocopy, he could not
conclusively determine the significance of the various anomalies within the
document without examining the original. See N.T. Trial, 8/25/16, at 92.
In other words, by the very nature of the only available document, a
definitive conclusion as to its authenticity was impossible. However,
Detwiler did point out numerous anomalies, such as isolated trash marks
and toner particles, the presence of white-out, and the inconsistent spacing
of Judy McClintock’s name, which raised serious questions as to the
document’s authenticity. On this basis, the Orphans’ Court was well within
its discretion to conclude that McClintock did not meet her heavy burden of
proof.
Finally, we briefly address McClintock’s argument regarding the
testimony of Dorothy Lykins. As noted above, the Orphans’ Court found
Lykins to be an incredible witness. McClintock challenges the court’s
credibility assessment as follows:
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As not only the Notary Public but also the Chief Clerk of the City
of Franklin Municipal Court for the State of Ohio, Dorothy Lykins
is an authority figure whose word/testimony is to be and should
be respected. There is nothing in the record to indicate anything
that would or could have biased or impeached her testimony on
these key facts. Therefore, even if her Affidavit was not
completely in line with her testimony, that is of no significance
whatsoever.
Brief of Appellant, at 26.
The notion that Lykins’ testimony is not to be questioned because of
her status as a public official is both dangerous and absurd and, as such,
may be dismissed out of hand. The testimony of an elected official in a court
of law is entitled to no greater presumption of credibility than that of any
other citizen; to suggest otherwise is to begin a journey down a slippery
slope.
In sum, the Orphans’ Court’s decision in this matter was based largely
on credibility determinations which, based upon our review, are clearly
supported in the record. Nalaschi, supra. Moreover, we can discern no
error of law in the court’s conclusion that McClintock failed to establish by
positive, clear and satisfactory evidence, Murray, supra, that the contents
of Decedent’s will were substantially as appeared on the photocopied
document presented for probate. Janosky, supra. Accordingly, we affirm
the order of the Orphans’ Court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/6/2017
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Estate of Brumbaugh, J., Appeal of: McClintock, J.
Combined Opinion