In re Estate of Shelly

950 A.2d 1021

In re ESTATE OF Norman F. SHELLY Appeal of Marcreek Farms, Michael J. Cook, Richard Swisher, and Stephen D. Brown.

No. 443 MDA 2007.

Superior Court of Pennsylvania.

Argued February 27, 2008.

Filed June 2, 2008.

Thomas J. Finucane, Chambersburg, for appellant.

Karl L. Prior, King of Prussia, for Evans, appellee.

BEFORE: FORD ELLIOTT, P.J., DONOHUE, and POPOVICH, JJ.

OPINION BY POPOVICH, J.:

¶ 1 Marcreek Farms, Michael J. Cook, Richard Swisher, and Stephen D. Brown (Appellants) appeal from the orphans' court's February 12, 2007 grant of summary judgment in favor of Margaret P. Evans, Terry L. Shelly, Larry R. Shank, and Donna Oberholzer (collectively Four Heirs) and its denial of Appellants' motion for summary judgment. Upon review, we affirm.

¶ 2 The orphans' court aptly stated the factual and procedural history of this appeal as follows.

Norman F. Shelly ("Decedent") died on July 27, 1999. After Decedent's death, Thomas Steiger Jr., Esquire, submitted a cardboard panel of a cigarette carton for probate on August 25, 1999, and the Register of Wills issued letters of administration c.t.a. naming Michael J. Cook, who is not related to Norman, as administrator of Norman's estate. The cardboard panel contains no witness attestations and is not notarized, an Oath of Non-Subscribing Witnesses executed by two persons who purported to know and recognize Decedent's signature is of record at Will Volume 163, page 283. The cigarette carton document names beneficiaries of Norman's estate [Appellants] and none of those named beneficiaries are heirs of Decedent.

Charles O. Shelly, an intestate heir, filed an appeal from the decree of probate on November 5, 1999. A petition for class action status was filed simultaneously, but was denied by [orphans' court] Order on February 10, 2000. On April 12, 2000, an Order was entered enjoining the distribution or sale of assets. On August 15, 2000, David C. Cleaver, Esquire, appealed the probate of the cigarette carton document on behalf of Paul Shelly, the second intestate heir to challenge the cigarette carton writing. On September 15, 2005, Charles O. Shelly and Paul Shelly discontinued their respective appeals from probate. A petition to strike the discontinuance of Charles O. Shelly was filed on November 2, 2005[,] by the would-be intestate heirs, Margaret P. Evans, Terry L. Shelly, Larry R. Shank, and Donna Oberholzer ("Four Heirs"). On January 9, 2006, [the orphans' court] reinstated the appeal of Charles O. Shelly and approved the discontinuance of Paul Shelly's appeal, with prejudice. The appeal of Charles O. Shelly was joined by the Four Heirs on May 31, 2006.

At this time, several motions for summary judgment have been filed. The Four Heirs have filed a Motion for Summary Judgment, as well as a Motion for Summary Judgment Declaring Partial Intestacy. The Four Heirs' Motion for Summary Judgment reduces the case to a single legal issue: whether the cigarette carton document bearing Decedent's handwriting is a will. The Four Heirs' Motion for Summary Judgment Declaring a Partial Intestacy seeks a declaration by [the orphans' court] that if the cigarette carton document is found to be a will, then a partial intestacy results, as not all assets are disposed of in the cigarette carton document, and the cigarette carton document contains no residuary clause. The beneficiaries named in the cigarette carton document have also filed a Motion for Summary Judgment or Partial Summary Judgment requesting that the cigarette carton document be declared [decedent's] valid Last Will and Testament, and the appeal of the Four Heirs dismissed. [Appellants] make an additional request that [the orphans' court] undertake an analysis of the available extrinsic evidence and enter a similar finding based on such analysis.

Orphans' court opinion, 2/12/07, at 1-2 (footnote omitted).

¶ 3 On February 12, 2007, the orphans' court granted the Four Heirs' motion for summary judgment and denied Appellants' motion requesting the same. Appellants filed a timely appeal on March 13, 2007. The orphans' court ordered Appellants to file a concise statement of matters complained of on appeal; they complied. In response, the orphans' court authored a Pa.R.A.P.1925(a) opinion addressing Appellants' matters complained of on appeal.

¶ 4 Appellants present three issues for our review.

1. Whether the disputed writing, labeled "FIRST AND LAST ONLY WILL" and signed by the [decedent], provides for a positive disposition of assets?

2. If a will is otherwise valid, does "D[RAFT] ?," written by the [decedent] on the disputed writing, inherently destroy the testamentary character of the document?

3. Whether an examination of the disputed writing shows, with reasonable certainty, testamentary intent so that it should be probated as a will, or, in the alternative, whether a real doubt or ambiguity exists so that the disputed writing might or might not be a will, depending upon circumstances, so that extrinsic evidence can be used in resolving the uncertain character of the paper?

Appellants' brief, at 4.¹

¶ 5 An appeal from the grant of summary judgment is subject to the following scope of appellate review:

[W]e are not bound by the [orphans'] court's conclusions of law, but may reach our own conclusions. In reviewing a grant of summary judgment, the appellate court may disturb the [orphans'] court's order only upon an error of law or an abuse of discretion. The scope of review is plenary and the appellate court applies the same standard for summary judgment as the [orphans'] court.

Rohrer v. Pope, 918 A.2d 122, 126 (Pa.Super.2007) (citation omitted).

¶ 6 Further, the standard of review of an orphans' court's entry of summary judgment is well established.

We shall reverse a grant of summary judgment only if the [orphans'] court has committed an error of law or abused its discretion. Judicial discretion requires action in conformity with law based on the facts and circumstances before the [orphans'] court after hearing and consideration. Where the discretion exercised by the [orphans'] court is challenged on appeal, the party bringing the challenge bears a heavy burden. On appeal from a grant of summary judgment, we must examine the record in a light most favorable to the non-moving party.

Arnoldy v. Forklift, L.P., 927 A.2d 257, 262 (Pa.Super.2007) (citation omitted).

¶ 7 Pennsylvania Rule of Civil Procedure 1035.2 is stated, in pertinent part, as follows:

Rule 1035.2. Motion

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

¶ 8 Initially, we note that in order to determine whether a particular writing constitutes a will, no formal words are necessary, the form of the instrument is immaterial if its substance is testamentary. In re Megary's Estate, 206 Pa. 260, 265, 55 A. 963, 965 (1903). A gift or bequest after death is of the very essence of a will, and determines a writing, whatever its form, to be testamentary. Id., at 265, 55 A. at 965. Therefore, our first inquiry is whether the cigarette carton provides for a positive disposition of assets.

¶ 9 Appellants' argue that a positive disposition of assets is evidenced by the writing labeled "FIRST AND LAST ONLY WILL" and signed and dated by the decedent. Specifically, Appellants argue that the orphans' court erred in finding the cigarette carton did not evidence testamentary intent due to the absence of a positive disposition of assets. Appellants' contend that the term "will" is a dispositive term and the fact that the decedent signed and dated the cigarette carton resulted in a determination that it was a will written with testamentary intent.

¶ 10 No rule regarding wills is more settled than the general rule that the testator's intent, if it is not unlawful, must prevail. In re Estate of Conlin, 388 Pa. 483, 488, 131 A.2d 117, 119 (1957) (citation and quotation marks omitted). Moreover, the testator's intention must be ascertained from the language and scheme of his will; it is not what the Court thinks he might or would have said in the existing circumstances, or even what the Court thinks he meant to say, but is what is the meaning of his words. Id., at 488, 131 A.2d at 119 (citation and quotation marks omitted).

¶ 11 As found by the orphans' court, this document did not make a disposition of property. See Orphans' court opinion, 4/12/07, at 5. Rather the document contained a list of items accompanied by the names of individuals. The only term that could have been construed to dispose of property is "DEVIDE," which the orphans' court presumed to be "divide." Id., at 8. The context of the placement of the word "DEVIDE" was as follows:

MONEY. DEVIDE

MICHAEL COOKS SONS

¶ 12 However, the decedent also placed an arrow leading from the previous section of the document which read: "FARM MACH + MACHINES AND TOOLS MICHAEL COOK SR LIVING MY AGE" into this section. Appellants contend that "DEVIDE" written in this context indicated that Michael Cook, Sr., was the father of the two sons and that the decedent intended the money to be divided equally between the two sons. We disagree.

¶ 13 There is no indication of what money was to be divided, into what shares it was to be divided, or if it was to be divisible by three including Michael Cook, Sr., or divisible by two including...