Curtis, G. v. Carter, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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). ____________________________________________ 2 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 ____________________________________________

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 ____________________________________________

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. ____________________________________________

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

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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