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Court Opinions
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| Judge | Issued Date | Caption | Topic |
|---|---|---|---|
| Herron | 7/21/2009 | Estate of Evelyn Citrino O.C. No. 587 DE of 2006 (Herron, J. 7/21/2009)  |
Gift Inter Vivos - Putative Donee of $466,000 in redeemed U.S. savings bonds failed to establish a prima facie case of donative intent by clear and convincing evidence - Under Dead Man's Rule, Putative Donee Was Required to Present Independent Evidence of the Gift Before He Could Testify as to that Gift |
| Herron | 6/29/2009 | Estate of Louise Carrie Lee, Deceased O.C. No. 2110 AP of 2003 (Herron, J. 6/29/2009) |
Will Contest/Undue Influence - Later Will Is Invalid as the Result of Undue Influence Where Testator Suffered from Weakened Intellect and She Was in a Confidential Relationship with the Proponent who would have received a Substantial Benefit under the Will - Proponent's Testimony Lacked Credibility Where it was Evasive, Contradictory and Admitted Failure to Alert Scrivener that Guardianship Proceedings Had Been Initiated regarding the Testator |
| Herron | 6/29/2009 | Estate of S. McDowell Shelton, Deceased O.C. No. 1569 DE of 1994 (Herron, J. 6/29/2009) |
Attorney/Surcharge - Attorney Is Surcharged for the Loss to the Estate of $1.6 Million due to the Transfer of Assets by His Client in Clear Violation of a Court Order - Attorney's Failure to Take Appropriate Steps to Prevent the Loss to the Estate Was a Breach of His Standard of Care |
| Herron | 5/27/2009 | Estate of Catherine Kuehn O.C. No. 1375 PR of 2005 (Herron, J. 5/27/2009) |
Power of Attorney - Where daughter obtained Power of Attorney through undue influence exerted over her elderly mother suffering from dementia, the gifts and distributions by the agent that benefited herself and her immediate family were invalid and the Agent is surcharged |
| Herron | 4/14/2009 | Estate of Jessica Lundy, A minor O.C. No. 511 MI of 1996 (Herron, J. 4/14/2009) |
Minor's Guardian/Surcharge - Fee claimed by Minor's Guardian is reduced where the guardian failed to participate actively in the administration of the minor's estate and where the services provided were routine |
| Herron | 3/26/2009 | Estate of Betty Mae Schofield O.C. No. 639 DE of 2008 (Herron, J. 3/26/2009) |
Resulting Trust - Long time companion of decedent established his claim to real property where the deed was in decedent's name by satisfying the three requirements for a purchase money resulting trust - The petitioner alone had paid for the purchase of the real property, he had no intention that a resulting trust would not arise, and he was neither married nor related to the decedent whose name was on the deed of the real property at issue |
| Herron | 3/3/2009 | Trust of Christopher Young O.C. No. 255 IV of 1982 (Herron, J. 3/3/2009) |
Trustee/Surcharge - Corporate Trustee is surcharged the costs of retrieving lost paintings by Charles Morris Young where it also served as Executor and failed to make an adequate inventory of those paintings at the time of decedent's death |
| Herron | 2/3/2009 | Estate of Sarah Katz, Deceased O.C. No. 1380 DE of 2006 (Herron, J., 2/3/2009) |
Joint Bank Account/Devisavit Vel Non - Petitioner failed to present clear and convincing evidence that decedent did not intend to establish a joint account with right of survivorship at the time the certificates or accounts were created |
| Herron | 12/31/2008 | S.McDowell Shelton, Deceased O.C. No. 1569 DE of 1994 (December 31, 2008, Herron, J.) (Issued Date June 30, 2008) |
Surcharge/Removal of Fiduciary - Executor who distributed assets of an estate in knowing violation of a 1999 court order was surcharged the amount distributed so that the estate could be restored to its status quo and the accounts could be properly adjudicated - Executor was removed as a threat to the proper administration of the estate due to his refusal to adhere to court order |
| Herron | 12/9/2008 | Estate of Robert W. Ryerrs, Deceased O.C. No. 36 DE of 1896 (December 9, 2008, Herron, J.) |
Park Dedicated for Public Purpose - Petition by City to lease 19.4 acres of viable park land that was dedicated for the ”use and enjoyment of the people forever” by Ordinance and Will is Denied Under the Public Trust Doctrine and Relevant PEF Code Provisions |
| Herron | 8/25/2008 | Estate of Robert W. Ryerrs, Deceased O.C. No. 36 DE of 1896 (August 25, 2008, Herron, J.) |
Standing - Where City sought to lease public parkland pursuant to the Inalienable Property Act, 20 Pa.C.S. §§ 8301-8306 for construction of hospital buildings, taxpayers had standing to intervene |
| Herron | 8/18/2008 | Stuart David Fiel, Testamentary Trust O.C. No. 557 IV of 2002 (August 18, 2008, Herron, J.) |
Attorney Fees - Trustee may recover from the Trust for attorney fees incurred in a surcharge defense - Attorney fees relating to the sale of decedent's property did not constitute surcharge defense charges - Where expert witness and his report did not address surcharge issues, his fees cannot be charged to the Trust |
| O'KEEFE | 6/30/2008 | Estate of Rita R. Mallon, Deceased O.C. No. 1443 DE of 2006 (June 30, 2008, O'KEEFE, Adm. J.) (Issued Date June 30, 2008) |
In a challenge to a decedent’s lifetime gifts, despite the existence of a trusting relationship and substantial benefit, one cannot prove a confidential relationship where there is clear and convincing evidence that the gifts were freely, voluntarily and intelligently made, and, were not the product of undue influence. |
| O'KEEFE | 6/30/2008 | Estate of Anna E. Fridenberg, Deceased O.C. No. 261 ST of 1941 (June 30, 2008, O'KEEFE, Adm. J.) (Issued Date June 30, 2008) |
Objection to Account of Trustee of Perpetual Charitable Trust which is not a Private Foundation -- Trustee's Corporate Predecessor served as Executor of Decedent's Estate, and, received Commissions, on Principal, for services as Executor -- Trustee's Corporate Predecessor then served as Trustee Under Will -- Objection of Attorney General, to payments of Trustee's Commissions, on Principal, for ordinary services, is Sustained because such payments are barred by decisions in the matters of Williamson Estate, 368 Pa. 343 (1951); Scott Estate, 418 Pa. 332 (1965); and, Ehret Estate, 427 Pa. 584 (1967) -- it would be unconstitutional, under the Fourteenth Amendment of the United States Constitution, to apply retroactively any statute which repeals the prohibition on the same individual receiving Commissions on Principal, as both Executor and Trustee, which prohibition existed under the 1917 Act -- former Section 7185 (b) of the PEF Code, as amended by the Act of February 18, 1982, P.L. 45, No. 26, and, Section 7768 of the Uniform Trust Act, as enacted by the Act of July 7, 2006, P.L. 625, No. 98, may not be applied retroactively to permit the challenged payments of Trustee's Commissions, on Principal, for ordinary services |
| O'KEEFE | 6/30/2008 | Estate of Charles W. Graham, Deceased O.C. No. 1637 DE of 2005 (June 30, 2008, O'KEEFE, Adm. J.) (Issued Date June 30, 2008) |
The appropriate standard in challenging the decedent’s signature on a document other than a will is by a preponderance of the evidence. The decedent’s signature on an Insurance Designation of Beneficiary Form was found to be a forgery and as such, the claimant was not entitled to the policy funds. |
| O'KEEFE | 6/30/2008 | Estate of Ednamay Clark, Deceased O.C. No. 590 AP of 2002 (June 30, 2008, O'KEEFE, Adm. J.) (Issued Date June 30, 2008) |
A writing cannot be deemed a valid codicil where there exists a lack of testamentary capacity and where the writing was a product of undue influence. |
| O'KEEFE | 6/30/2008 | Estate of Amelia Watson a/k/a Amelia M. Watson, Deceased O.C. No. 738 DE of 2007 (June 30, 2008, O'KEEFE, Adm. J.) (Issued Date June 30, 2008) |
One who holds both an interest in real estate and possesses a right to occupy does not bear sole responsibility for necessary payments towards the real estate. All individuals who have an interest are responsible for necessary payments such as real estate taxes, fire insurance and liability insurance. However, personal expenses or user fees are the responsibility of those who possess a right to occupy. |
| O'KEEFE | 6/30/2008 | Estate of Lewis Elkin, Deceased O.C. No. 270 ST of JULY TERM 1902 (June 30, 2008, O'KEEFE, Adm. J.) (Issued Date June 30, 2008) |
Objections to Accounts of Trustee of Perpetual Charitable Trust which is Private Foundation -- Trustee's Corporate Predecessor served as Executor of Decedent's Estate, and, received Commissions, on Principal, for services as Executor -- Trustee's Corporate Predecessor then served as Trustee Under Will -- Claims for Trustee's Compensation, for ordinary services, are Denied -- No factual Record made to support Claims for Trustee's Compensation -- See In Re Ischy Trust, Etc., 490 Pa. 71 (1980); Estate of Lux, 480 Pa. 256 (1978); Conti Estate, 8 Fiduc Rep 2d 272 (O.C., Phila., 1988); Preston Estate, 385 Pa.SuperiorCt. 48 (1989); Sonovick Estate, 373 Pa.SuperiorCt. 396 (1988); Reed Estate, 462 Pa. 336 (1975); and, Scott Estate, 34 D.&C.2d 727 (1965) -- Claims for Trustee's Compensation are excessive and unreasonable in light of Breaches of Fiduciary Duty -- See Estate of Geniviva, 450 Pa.SuperiorCt. 54 (1996) -- Claims for Trustee's Compensation are barred by decisions in the matters of Williamson Estate, 368 Pa. 343 (1951); Scott Estate, 418 Pa. 332 (1965); and, Ehret Estate, 427 Pa. 584 (1967) -- former Section 7185 (b) of the PEF Code, as amended by the Act of February 18, 1982, P.L. 45, No. 26; Section 7768 of the Uniform Trust Act, as enacted by the Act of July 7, 2006, P.L. 625, No. 98; and, Section 8113 of the PEF Code, may not be applied retroactively to allow the Claims for Trustee's Compensation -- Argument that Trustee made a "deemed" election, under Section 8113 of the PEF Code, is Rejected - Trustee never made any election, "actual" or "deemed", under Section 8113 |
| Herron | 6/25/2008 | Estate of Easby O.C. No. 1363 AP of 2006 (June 25, 2008, Herron, J.) |
Will Contest - Challenge to Will Dismissed Where Proponent Established Lack of Undue Influence Based on his Longterm, Loving Homosexual Relationship with Decedent Who Was Not Isolated From Friends or Family |
| Herron | 5/30/2008 | Matthews Charitable Trust O.C. No. 1444 IV of 2007 (April 30, 2008, Herron, J.) |
Trust Agreement - Terms of trust agreement control to give Trustees discretion to determine distribution of income and principal where designated beneficiary fails to meet requirements under IRS - Distributions to Chestnut Hill Hospital were properly directed to the other designated beneficiaries after the hospital ceased existing as a charitable organization after its sale |
| Herron | 5/28/2008 | Estate of Fina O.C. No. 1408 DE of 2005 (April 28, 2008, Herron, J.) |
Account/Fraudulent - Where account failed to include all estate assets and testimony is confused or conflicting as to extent of cash assets, the account cannot be confirmed and will be returned unaudited - Philadelphia orphans' court lacks jurisdiction over disposition of decedent's real property located in New Jersey |
| Herron | 5/7/2008 | Estate of Katie King O.C. No. 1619 DE of 2006 (April 7, 2008, Herron, J.) |
Surcharge/Executor - Beneficiaries failed to meet their burden of proof that executor's account failed to include $50,000 in security assets where the record established valid expenditure of those assets necessary for the care of decedent after she suffered a stroke |
| Herron | 3/3/2008 | Estate of Mary Nedwood, Deceased O.C. No. 807 DE of 2006 (March 3, 2008, Herron, J.) |
Estate Administration/Sale of Real Property - Administrator of Estate had authority to sell deceased wife's property under Section 3351 of the PEF code - That sale could not be set aside on the grounds of inadequate price absent fraud which was not shown - Plaintiffs failed to establish that buyer had confidential relationship with the administrator or that the sale was the result of undue influence - A contract signed by an alcoholic when he is sober is not void |
| Herron | 10/15/2007 | Clifton and Mary Byer Trust O.C. No. 180 IV of 2004 (October 15, 2007, Herron, J.) |
Trust Agreement - The settlor's intent is the polestar for interpreting unambiguous terms- Where the terms of a trust agreement are ambiguous, extrinsic testimony as to the settlor's intent may be considered - Trust provisions imposing costs on challenge by a beneficiary would not apply to a trustee seeking clarification of ambiguous terms |
| Herron | 9/10/2007 | Estate of Elizabeth Janiga 370 DE of 2007 (September 10, 2007, Herron, J.) |
Executor Commission/Good faith reliance on counsel defense - Where final distribution to charitable beneficiaries was delayed without reason by 2 years after distribution to individual beneficiaries including the executor, the executor's commission was reduced by half. Executor could not rely on the good faith reliance on counsel defense where she failed to establish that her reliance on counsel was reasonable and prudent in light of the unexplained delay in distribution to the charitable beneficiaries |
| Herron | 7/30/2007 | Isaiah Williamston January 2005, No. 2553 (July 30, 2007, Herron, J.) |
Minor's Compromise/DPW Lien - Motion to avoid DPW Lien was untimely when filed 9 Months after settlement agreement was approved by court order with parental consent - Arkansas DHS v. Ahlborn, 547 U.S. 268 (2006) does not preclude a lien by the DPW based on payments for medical care |
| Herron | 7/11/2007 | Estate of Hydock O.C. No. 42 DE of 1992 (July 11, 2007, Herron, J.) |
Surcharge/Recovery of Attorney Fees from Opposing Counsel - Intestate heir could recover from opposing counsel the attorney fees he incurred to set aside his disclaimer of interest in his deceased son's estate where the opposing counsel participated in a obdurate, vexatious scheme with his client to deprive petitioner of his rightful claim as sole intestate heir |
| Herron | 7/2/2007 | Trust Established Under the Will of Peter Hallahan, Deceased O.C. No. 153 ST of 1922 (July 2, 2007 Herron, J.) |
Adoption/Adults - The presumption that an adopted child should be considered as a natural child for the purposes of a bequest under a will does not apply where the adoptee is an adult - It is necessary to establish an earlier parent/child relationship and that the adoption was not for the purpose of securing an inheritance. |
| Herron | 7/2/2007 | Estate of Louise Baselice, Deceased O.C. No. 1897 DE of 2003 (July 2, 2007, Herron, J.) |
Executor Commission - As a fiduciary, an executor has the responsibility to charge reasonable compensation given the nature of the responsibilities rendered and level of expertise required - Executor could not claim the same hourly rate for cleaning services as for legal services-Compensation cannot be claimed for unwarranted services |
| Herron | 6/19/2007 | Residuary Trust Under Will of George M. Rintz O.C. No. 1652 ST of 2006 (June 19, 2007 Herron, J.) |
Spendthrift Provision/Bankruptcy - Claims of bankruptcy trustee against heir to decedent's estate raise complex issue of concurrent state/federal jurisdiction - Under the "spendthrift provision" of the Federal Bankruptcy Code, 11 U.S.C. § 541(c)(2), a spendthrift trust that is viable under relevant state law would not fall within the bankruptcy estate- Pennsylvania courts recognize valid spendthrift trust to protect the settlor's intent |
| Herron | 6/4/2007 | Stuart D. Fiel Trust O.C. No. 557 IV of 2002 (June 4, 2007, Herron, J.) |
Surcharge/Continued Operation of Decedent's Business - Executor/Trustee cannot be surcharged for continuing to operate the decedent's personal injury law practice for nearly 15 months where the will gave executor the broad discretion to conduct his business subject to ethical constraints |
| Herron | 5/17/2007 | Estate of Benjamin Glassman O.C. No. 138 De of 2006 (April 17, 2007 Herron, J.) |
Spousal Election/In Personam Jurisdiction - Where decedent's son pursuant to a power of attorney that invoked Pennsylvania law canceled his father's lease in Philadelphia, he was purposefully availing himself of the privilege of conducting activities within the state, thereby invoking its benefits and protections - Pennsylvania long arm statute provides for jurisdiction over persons accepting and exercising powers within the Commonwealth as a fiduciary under 42 Pa.C.S. §5322(a)(7)(iii)-By exercising his authority pursuant to the power of attorney, the decedent's son was on notice that he could be hauled into a Pennsylvania court where decedent's widow filed a petition to enforce her rights as an electing spouse under 20 Pa.C.S. §2201 - Pennsylvania courts have a profound interest in adjudicating the issue of a resident's right of spousal election |
| Herron | 5/16/2007 | The Trustees of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc. O.C. No. 1134 NP of 2006 (April 16, 2007, Herron, J.) |
Interlocutory Appeal/Nonprofit Corporation/Coordinate Jurisdiction Rule - Order denying petition to recuse arbitrator appointed by agreement approved by a Judge in the Civil Trial Division is interlocutory - Where 10 year litigation over Church and Nonprofit corporation assets in the Civil Trial Division was resolved by agreement to arbitrate, the petition to recuse the arbitrator should have been filed with the appropriate judge in the Civil Trial Division and not initiated as a new matter before the Orphans' Court Division |
| Herron | 5/14/2007 | Rose Kogen Trust O.C. No. 1787 IV of 2004 (May 14, 2007, Herron, J.) |
Trustee/Breach of Fiduciary Duty - Trustee engaged in self-dealing when he used $900,000 in trust funds to purchase convertible debentures or unsecured loans in a company in which he had strong personal stakes as president/managing director as well as economic links to his family trust - This transaction is voidable under Section 7772(b) of the Pa. Uniform Trust Act - The trustee's alleged gift of stock to a charitable beneficiary was invalid due to lack of donative intent "then and there" or delivery |
| Herron | 1/26/2007 | Ennis Allen and Alberta Manson Allen, Deed of Trust aff’d., Twana R. Cisse nee Twana Ray Allen v. Jordon, Exec. Estate of Alberta Allen, Deceased, No. 3411 EDA 2006 and No. 3489 EDA of 2006 (Pa. Super. 10/24/2007). O.C. No. 665 IV of 2006 (January 26, 2007, Herron, J.) |
Trustee/Appointment -Under Section 7764 of the Pennsylvania Uniform Trust Act, court may appoint substitute trustee where the trust document is silent on this issue and the beneficiaries do not agree - Where deed created a trust for petitioner's lifetime only and provided that upon her death the property would revert to the settlor, petitioner lacked authority to sell the property where deed gave such authority to the trustee |
| Herron | 1/18/2007 | Estate of Mary Nedwood O.C. No. 807 DE of 2006 (January 18, 2007, Herron, J.) |
Estate Administration/Sale of Property - Sale of real property by administrator of estate cannot be set aside based on low price absent fraud -- Heirs presented a viable claim for fraud/conspiracy against the purchasers of the estate real property based on allegation that they induced the administrator to obtain letters of administration through misrepresentation to the Register of Wills that he was the sole heir-- Heirs did not present viable claim of negligence against title company in the sale of estate real property due to failure to establish a duty owed to them |
| Herron | 12/4/2006 | Estate of Ronald A. White O.C. No. 308 DE of 2005 (December 4, 2006, Herron, J.) |
Attorney Fees/Insolvent Estate - Attorney fees incurred in the administration of an insolvent estate take preference over claims of the United States government for delinquent taxes despite federal insolvency statute 11 USC §3713-Such attorney fees are the result of liabilities that arise under law and not by the request of the decedent-Insolvent estates require legal services and an attorney should not be required to gamble his fee in providing those services |
| Herron | 11/7/2006 | Trust Established Under the Will of Charles S. Child, Deceased O.C. No. 3055 ST of 1929 (November 7, 2005, Herron, J.) |
Testamentary Trust/Interpretation -- The distribution of trust principal at the time of the termination of a trust created by a will must be determined according to the testator's intent as expressed by the language of the will and its distributive scheme - The express words of the will convey the intent that the testator's two nephews whose specific names are set forth and underlined should be the defining point for the division and distribution first of income and then of principal |
| Herron | 8/17/2006 | Estate of Benjamin Glassman, Deceased O.C. No. 138 DE of 2006 (August 17, 2006, Herron, J.) |
Spousal Elective Share - Issues of fact concerning decedent's domicile and intent require additional evidence for determination of subject matter jurisdiction - Under Pennsylvania Law, Joint Bank Accounts are subject to Spousal Election Under 20 Pa.C.S. §2203 |
| Herron | 7/31/2006 | Mary and Emanuel Rosenfeld Foundation Trust O.C. No. 1664 IV of 2002, (July 31, 2006, Herron, J.) |
Trustee/ Surcharge and Removal - Trustee of a charitable trust may be removed and surcharged for breach of fiduciary duty due to a conflict of interest between the charitable beneficiaries and the Trustee's company, resulting in an obdurate refusal to consider selling the company's stock -Trust document did not authorize unfettered retention of stock nor did it waive a conflict of interest - where investment decisions of trustees are challenged contemporaneously rather than retrospectively at time of accounting, damages should be calculated from the date of the alleged breach of fiduciary duty - Attorney Fee petition of corporate trustee is reasonable and is charged against the breaching trustees |
| Herron | 5/31/2006 | Estate of Flora Lee Gregory, An Incapacitated Person O.C. No. 1265 IC of 2005 (May 31, 2005, Herron, J.) |
Incapacitated Person/Attorney Retainer Agreement -- Attorney Fixed Retainer Agreement was void due to client's incapacity so that counsel fees should be awarded instead on a quantum meruit basis |
| Herron | 3/31/2006 | Trust Established Under Trust Agreement of Sidney B. Golub and Frances Golub, Settlors O.C. No. 620 IV of 2004 (March 31, 2005, Herron, J.) |
Trust Accounting/Standing - In filing its account for a trust, Trustee has standing to raise the issue of the alleged improper use of a power of attorney by the beneficiary of the estate where the assets of the estate would pour over into the Trust - The mere fact that the Trust Agreement immunizes the Trustee from liability for any actions through the power of attorney does not negate the Trustee's standing or duty to properly administer the trust according to its terms - Orphans' Court has subject matter jurisdiction to consider whether the advancement to a beneficiary was proper - The Executor of the Estate must raise the issue of whether the power of attorney granted by decedent was misused by her agent - The issues raised by the Trustee must therefore be coordinated with the action of the Executor |
| Herron | 2/22/2006 | Estate of Joseph Edward Hydock, III, Deceased O.C. No. 42 DE of 1992 (February 22, 2006, Herron, J.) |
Disclaimer - Disclaimer to Interest in Decedent's Estate Should Be Set Aside Where Petitioner Presented Clear and Convincing Evidence that the Fiduciary of His Son's Estate Procured Petitioner's Disclaimer by Fraud and the Disclaimer Itself Was Inherently Fraudulent in Designating Certain Beneficiaries as Petitioner's Children |
| Herron | 1/27/2006 | Estate of Marie Lista O. C. No. 1474 AP of 2003 (January 27, 2006, Herron, J.) |
Will Contest - Contestant did not meet his burden of showing by clear and convincing evidence that his Aunt's will was the result of undue influence where he failed to show that she suffered from weakened intellect - The testimony and evidence by testator's nurse, occupational therapist and physical therapist consistently characterized testator as alert and oriented though physically infirm-The parties agreed that testator had asked the contestant to contact an attorney to draft a will for her but contestant failed to do so-The attorney who drafted the challenged will testified that he had no reason to question testator's mental capacity |
| Herron | 12/29/2005 | Charlie M’ Moore Brown, Deceased, Inter Vivos Trust O.C. No. 1435 IV of 2003 (December 29, 2005 Herron, J.) |
Trust/Declaratory Judgment - To determine whether settlor's assets were transferred to her trust by a general assignment, each type of asset must be analyzed in terms of the language of the relevant documents - Title to an automobile was not transferred to the trust where the certificate of title was in the joint names of the settlor and her son - Joint bank accounts were not transferred to the trust - Settlor's residence was transferred to the trust where the assignment satisfied the statute of frauds by referring to all the settlor's real property - Life insurance policies were not transferred to the trust where no effort was made to change the beneficiary forms |
| Herron | 10/27/2005 | Trust under Deed of Edward Woolman, Settlor O.C. No. 1364 IV of /2004 |
Trust/Irrevocable Inter Vivos - Where deed of trust failed to provide for eventuality that settlor's daughter might die without issue, a resulting trust arose and the trustee holds the principal for the settlor's estate - Alternatively, under section 6102 of the PEF Code, where a trust fails in its original purpose to benefit the settlor's daughter's issue because the daughter died without having children, the trust assets should nonetheless be distributed as nearly as possible in accordance with the settlor's intent as gleaned from the deed of trust and related will |
| O'KEEFE | 9/13/2005 | Estate of Raheem D. Johnson, Deceased O.C. No. 1329 AP 2004 (September 13, 2005, O'KEEFE, J.) |
FORFEITURE: Parental abandonment of adult child; Appeal from decree of the Register of Wills denying Letters of Administration to mother of adult decedent; Whether the Forfeiture Statute, 20 Pa.C.S. § 2106(b), applies where the decedent is an adult as opposed to a minor. |
| Herron | 8/22/2005 | Greek Orthodox Kathedrikos of Saint George O.C. No. 410 NP of /2005 |
Jurisdiction/Subject Matter - Orphans' Court lacks subject matter jurisdiction to resolve dispute over election of parish council members and officers where the articles of incorporation of the nonprofit corporation provide that it is subject to the rules of the hierarchical Greek Archdiocese of America and the Metropolitan, as the highest judicatory body authorized to ratify a parish council election, has rendered his decision as to the election's validity |
| Herron | 8/22/2005 | Estate of Louis Baselice O.C. No. 1897 De of /2003 |
Will Interpretation - Where will expresses a "wish" and "desire" that the Executor allow a particular individual a right of first refusal to buy a piece of property, this is precatory language not binding on the Executor |
| Herron | 8/1/2005 | Estate of Elnora Cooper, Deceased O.C. No. 1681 of /2004 |
Will Contest/Unexecuted Will - Where petitioner challenges a decree of the Register of Wills for granting letters of administration but fails to raise that issue in the first instance with the Register of Wills, the appeal to the Orphans' Court must be dismissed. After Discovered Will - If a will is discovered more than 3 months after decedent's death, under section 3138 of the PEF code, the Register no longer has authority to open a probate record so that appellant must appeal to Orphans' court to determine whether record should be opened but not the validity of the will - Appellant in this case could not make a prima facie case where the will was unexecuted |
| O'KEEFE | 7/20/2005 | PATRICIA WILLIAMS, Administratrix of the Estate of JOSHUA CALEB WALKER, DECEASED October Term 2000 No. 001873 (O'KEEFE, J.) (07/20/05 - 9 Pages) |
Intestate heirs - Siblings who were adopted out of the family prior to their sibling’s death maintained their intestate right of inheritance from their deceased sibling’s estate despite their prior adoption; a fact bound inquiry concluded that a family relationship was maintained pursuant to 20 Pa. C.S.A. §2108 between the prior adopted siblings and the deceased sibling. Accordingly, the prior adopted siblings take as part of a class of siblings under intestacy pursuant to 20 Pa. C.S.A. §2103(3). |
| Herron | 6/7/2005 | Estate of Willa M’ Hampton Cooper, an Incapacitated Person O.C. No. 480 IC of /1998 |
Surcharge/Guardian/Incapacitated Person - Guardian of Incapacitated Person surcharged for negligently delegating investment functions - While investment functions may be delegated by a fiduciary, section 7206 of the PEF code requires the fiduciary to exercise reasonable care, skill and caution in selecting the agent and monitoring his performance-Where guardian failed to establish the scope and terms of the investment functions she delegated or to monitor the agent's subsequent performance, she was surcharged for this neglect. |
| Herron | 2/17/2005 | Estate of Rose Kornberg, an Incapacitated Person O.C. No. 333 IC of /2002 |
Guardian Fees/Incapacitated Person - Guardian fees should be evaluated against a standard of what is fair and reasonable in the context of such factors as the amount of work performed, the character of services rendered, and the difficulty of the problems involved - Guardian fees for an incapacitated person should be premised on a moderate scale - The size of an incapacitated person's estate is another factor to consider - Where the services performed by a guardian are routine and ministerial, the higher fees charged for more specialized legal services would not be appropriate |
| Herron | 1/13/2005 | Estate of Fannie Stafford, a/k/a Fannie M. Stafford, Deceased O.C. No. 530 AP of /2002 |
Will Contest/Undue Influence - Petitioner established by clear and convincing evidence that the contested will had been procured through undue influence where, inter alia, the attorney who drafted the will never met with the decedent/testator nor discussed its terms with her but had been employed by the main beneficiary under the will - The beneficiary was in a confidential relationship with the decedent, she received a substantial benefit under the will and the testator suffered from weakened intellect - The proponent failed to rebut the resulting presumption of undue influence when no testimony by the scrivener of the will was presented. |
| Herron | 11/23/2004 | Estate of Joseph D'Alessio O.C. No. 1997 DE of 1244 |
Joint Bank Account/Objections to Account - Objectors to account failed to meet their burden to overcome the presumption of survivorship in a joint bank account - Pennsylvania law relating to joint bank accounts changed with the passage of 20 Pa.C.S.A. §§ 6301-6306 - The statute creates a presumption that any money remaining in a joint bank account after the death of a party to that account belongs to the survivor - In determining ownership of the joint account, the statute favors the survivor over the decedent's estate |
| Herron | 11/18/2004 | Estate of Maria Crudele O.C. No. 619 IV of /2004 |
Trust/Termination - Where settlors in their deed of real property expressed the intent to hold the property in trust, they created a testamentary trust rather than an inter vivos trust vested in the beneficiaries when the settlors reserved the right to revoke the trust, they maintained a life interest in the property with broad discretion to convey it, and they named themselves as trustees with active duties - Where the surviving settlor subsequently executed a will that specifically bequeathed the real property, the testamentary trust was terminated |
| O'Keefe | 11/10/2004 | ESTATE OF JEAN McCOLLIGAN No. 574 DE of /1999 |
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| Herron | 9/21/2004 | Estate of Catherine Hines O.C. No. 554 DE of /2002 |
Dead Man's Rule - Although the Dead Man's Rule may be waived if the Estate representative seeks discovery or testimony by a claimant, it was not waived when the Estate sought a citation to show cause why a claim should not be stricken - Since the Dead Man's Rule applies where a witness has an interest adverse to the estate, additional facts were needed to determine whether the proffered witness would personally benefit due to collusion with the claimant should he recover against the Estate |
| O'Keefe | 7/19/2004 | PHILADELPHIA HEALTH CARE TRUST A Nonprofit Corporation No. 1292 NP Of /1998 |
Nonprofit Corporation-Accounts per Court Decree-Petitions To Intervene-Petition Amicus Curi’-No Standing to enforce terms of Charitable Trust, Judicial Decree or applicable Laws-When Attorney General acts to protect the public interest in enforcing terms of a Charitable Trust, other Public Officers, including Councilman and Senator, do not have Standing, by virtue of their Offices, to Intervene to perform same function-Section 6110 (a) of PEF Code does not confer statutory authority to Intervene where Petitioner does not seek application of the cy pres doctrine because of alleged failure of the trust, but, instead, complains of misfeasance and malfeasance in the administration of the assets of a Charitable Trust-Petitions To Intervene Dismissed and Denied because neither Councilman or Senator is Attorney General, because neither has statutory authority to proceed in matters before Court, and, because neither has a special interest, that is, an interest other than the interest of all members of the public in compelling enforcement of the terms of the Articles of a Nonprofit Corporation. |
| O'Keefe | 6/18/2004 | Estate of JOSEPH C. NOBLIT, Deceased No. 579 ST of APRIL TERM 1922 |
Trust Under Will–Termination–Gaps in dispositive provisions of Will–One Adoption–Further Adoption of Children of First Adoptee before interests of said Children vest in enjoyment–Rules Of Statutory Construction do not apply–Children of First Adoptee were not adopted out of a Class of Beneficiaries into which they had been naturally born–Children of First Adoptee are strangers to blood of Testator–Adoption of Children of First Adoptee by Step-father, following Divorce of First Adoptee, did not take them out of Class of Beneficiaries designated in the Will of Testator, but, instead, prevented Children of First Adoptee from becoming members of said Class–Testator did not intend to benefit persons who were adopted out of the family of one who had been adopted into Testator’s family–Tafel does not require such a result, and, the Will does not express any such intent. |
| O'Keefe | 6/10/2004 | Estate of PAUL WEITZENKORN, Deceased O.C. NO. 591 AP of /2002 |
Will Contest–Appeal from Probate Dismissed–Contestant failed to present clear and convincing evidence of confidential relationship and weakened intellect–Contestant failed to present direct evidence of undue influence–Power Of Attorney did not prove existence of confidential relationship–Two estate plans drafted by two different Attorneys did not prove existence of weakened intellect–Proponent named beneficiary in prior Wills and Codicil–Proponent unaware of existence of writing in question until after death of Testator |
| Herron | 6/3/2004 | Estate of Beatrice B. Peters O.C. No. 3314 DE of 1984 |
Intestate Heirs -Where the Commonwealth presented no evidence to rebut the claims of the putative intestate heir who presented a genealogical study and documentary evidence, the claimant established her claim as an intestate heir by clear and convincing testimony and a reasonable degree of genealogical certainty |
| Herron | 5/19/2004 | Trust of Emanuel Rosenfeld O.C. No. 1664 IV of /2002 |
Trust/Fiduciary Duty - Under the terms of an irrevocable charitable trust agreement with three individual trustees and one corporate trustee, the corporate trustee could not be held liable for breach of fiduciary duty for failing to go to court to break a deadlock among the trustees as to diversification of assets where the trust agreement did not provide a method for breaking a deadlock - Although a corporate trustee may be held to a higher standard when it holds itself out as having expertise, the terms of the trust agreement establish the standard of care -- Where the corporate trustee urged the other trustees to diversify the trust assets, the corporate trustee could not be held liable for breach of fiduciary duty on the theory of failure to diversify |
| Herron | 5/14/2004 | Estate of Louis Baselice, affirmed and adopted, In re Estate of Louis Baselice, No. 1115 EDA 2004 (Pa. Super. October 4, 2004) O.C. No. 1897 DE of /2003 |
Writ of Possession - After extensive litigation over the purchase of real estate in the civil trial division, an emergency petition filed in Orphans' Court to stay execution of a writ of possession by an Estate is denied as moot where the sheriff had actually executed the writ and changed the locks prior to the emergency hearing scheduled the day after the petition to stay execution was filed |
| Herron | 3/22/2004 | Estate of Earl Wallace O.C. No. 1327 DE of 1994 |
Intestate Heirs - A fiduciary who files an account and is unable to locate heirs to an estate must make a written report of his investigation pursuant to Pennsylvania Orphans' Court Rule 13.3 - Two claimants satisfied their burden of showing that they were intestate heirs by a fair preponderance of credible evidence that was clear, precise and evident when they presented a genealogical study, census reports, birth and death certificates - Claimants recognized as intestate heirs were required to file a refunding bond under 20 Pa.C.S.A. § 3540 to protect the interests of any other heir who might appear within seven years - Executor was not entitled to attorney fees incurred in resisting the claims of the putative intestate heirs where the Commonwealth did not object to those claims |
| Herron | 2/3/2004 | Estate of Benedict LaCorte O.C. No. 1855 AP of /2002 |
Will Contest/Standing - Assignee of the interests of decedent's children lacked standing under the analysis of Estate of Luongo, 203 Pa. Super. 171, 823 A.2d 942 (2003) where under three prior wills the children would have received smaller bequests than they were entitled to under the challenged will - The standing of the assignee is derivative of the children's standing as putative intestate heirs - As in Luongo, the practical possibility of establishing that the assignee's status as an intestate heir was virtually nil given the existence of three prior wills |
| Herron | 1/20/2004 | Estate of Anne Flaxer O.C. No. 1427 DE of /2003 |
Account/Objections/Compensation for Services Rendered - Claim by daughter of decedent for compensation for services rendered to the decedent prior to her death was barred by 20 Pa.C.S.A. § 2701 where no writing signed by decedent was presented and where the will did not state the material provisions of a contract |
| Herron | 12/12/2003 | Marital Trust Established Under the Will of Moses Eckstein O.C. No. 33798 ST of 1961 |
Power of Appointment/Holographic Will - Where will of husband domiciled in Pennsylvania gave a power of appointment that was later exercised by the surviving wife in a holographic will executed in California, Pennsylvania law applied to the interpretation of whether the power was effectively exercised - Under 20 Pa.C.S.A.§2514(13), the wife effectively exercised the power of appointment where she made general devise in her holographic will even though the specific devise to her daughter lapsed when the daughter predeceased her without heirs - The testator expressed her intent to make a general devise when she stated the intent to "give all my estate as follows" - The objectors failed to meet their burden of showing a contrary intent |
| O'Keefe | 6/20/2003 | Hyman Bevitz (Decedent) 371 DE of 2002 Control no. 020548 |
ANTENUPTIAL AGREEMENT, DIVISION OF MARITAL PROPERTY, Affirmed by Superior Court 2638 EDA 2003. |
| Herron | 5/30/2003 | Estate of Benedict J. LaCorte O.C. No. 1855 AP of /2002 |
Will Contest/Standing/Marriage Contested - The children of decedent lacked standing to contest a will under which they were given more than under the will they were invoking - Under 20 Pa.C.S.A. §908(a), a party seeking to challenge a will must show that they are aggrieved and have a pecuniary interest that is injured by the Register of Will's decree - Statutory standing is jurisdictional and hence may be raised at any time by the court sua sponte - A challenge to the marriage of decedent based on undue influence was not viable because it must be raised by a party to that marriage which is impossible if one of the spouses is dead - Allegations that the Will was procured by undue influence were sufficient to withstand a demurrer where it was alleged that the decedent had suffered from Alzheimer's disease and that he had depended on respondent's care in personal and financial matters |
| Herron | 5/22/2003 | Kathryn Krzaczek, a minor v. Stewart Cooler, et al. October 1996, No. 1758, aff'd, Krzaczek, a minor v. Stewart Cooler, et al., 1366 EDA 2003 (Pa.Super. December 31, 2003), app. denied, 163 EAL (Pa. July 21, 2004) O.C. No. 1758 of 1996 |
Minor's Compromise - Where parents consented to a high/low agreement on the record before a trial judge and subsequently filed a petition with the Orphans' Court, their high/low agreement assuring a recovery of $250,000 with a limit of $950,000 was enforceable even though the jury returned a verdict of $15,000,000 in favor of the minor in a medical malpractice case - Court approval is necessary under Pa. Rule of Civil Procedure 2039 for a high/low agreement affecting the recovery of a minor - A fundamental purpose of Rule 2039 is to assure that the interests of a minor are protected above conflicting interests - The coordinate jurisdiction rule precludes judges of coordinate jurisdiction from overruling each other's decisions in the same case |
| O'Keefe | 5/5/2003 | ESTATE OF CARMEN DiCESARE No. 83 of /2001 |
ITF ACCOUNT, JOINT AND SEVERAL LIABILITY, BANK'S LIABILITY EMPLOYEES' ACTS - RESPONDEAT SUPERIOR, Affirmed by Superior Court. |
| O'Keefe | 5/1/2003 | Estate of KATE R. AVERY CLARK #4 April 2002 Control No. 020400 No. 174 IV of 1953 |
Contingent Reversionary Interest in a Trust; "Gaps" in deed failing to provide for subsequent factual contingencies; No implied gift by Necessary Implication; "Recital" as an effective and irrevocable assignment by Settlor of Retained Reversionary Interest in principal. Affirmed by Superior Court |
| O'Keefe | 3/24/2003 | Geraldine Woodie, et al. O.C. No. 2010 |
Parental ABANDONMENT of child; Burden: parent attempting to prove abandonment, HW parent accused of abandonment must first prove MINIMUM CONTACTS with child, otherwise ABANDONMENT PRESUMED |
| O'Keefe | 3/19/2003 | OLGA ADLER an Incapacitated Person No. 1144IC of /2001 |
ESTATE PLANNING FOR IC after ADJUDICATION, "BEST INTERESTS of IC" |
| O'Keefe | 3/10/2003 | CHURCH OF ST. JAMES THE LESS 953NP OF /2001 |
EPISCOPAL CHURCH HIERARCHY; INVALID CORPORATE MERGER OF NONPROFIT CORP.; LEGAL TITLE to CHURCH PROPERTY w/Standing Committee and diocesan Bishop, affirmed by Cmwlth Ct, Appealed to Pa. Supreme Ct. |
| O'Keefe | 12/2/2002 | Estate of Anna Karbiwnyk, Deceased O.C. No. 666 DE of /1998 |
Writs of Attachment; "obdurate, vexatious and bad faith conduct"; Failure to respond to Petition to Sell Real Estate precludes objections to related commissions and fees. |
| O'Keefe | 1/14/2002 | In re Estate of Frank R. Misko, Deceased 10/10DE of 1993 |
Orphans' Court power to enforce admin. agency ruling; Settlement Agreements (SA) favored; SA governed by Contract Law; valid SA requires all elements of valid contract; PA courts look to the writing in strictly interpreting settlement agreement. |
| O'Keefe | 12/20/2001 | Angel Carter, Administratrix of the Estate of William Carter, Jr., Deceased October 1999 No. 2428 |
Joint General Ct. Reg. 97-1: O.C. determines reasonable fee; Trial Cts. empowered to 2nd guess contingent fee agreement (fees and costs); Appellate Cts. limited power to review Trial Cts. fees and cost allocation. Procedural defects: Prevailing party not aggrieved for purposes of appeal, no standing; Aggrieved counsel must appeal in counsel's name, not non-aggrieved party's name. ETHICAL ISSUE: 1988 Sup.Ct. reprimanded same firm on same issue now on appeal. |
| O'Keefe | 12/19/2001 | Francis Rutter (Petitioner) 63PR of /2001 |
Confidential relationship - admitted (POA), burden shifts to POA to demonstrate, by cc evidence, that transfers without taint of undue influence or deception. |
| O'Keefe | 5/25/2001 | Estate of Bernhard S. Blumenthal, Deceased O.C. No. 646 DE of /1999 |
Exceptions; Ante-Nuptial Agreement; Life Insurance beneficiary; plain meaning, clear & unambiguous language; extrinsic evidence; right to argue judicial error; tolling statute of limitations. |
| O'Keefe | 5/12/2001 | Estate of Susie N. Cain, Deceased O.C. No. 1541DE of 1995 |
En banc - Exceptions; No error, issue not raised in proceedings; No Standing to pursue Exceptions |
| PAWELEC | 1/23/2001 | Estate of ARTHUR D. LEWIS, An Incapacitated Person O.C. No. 293 of /1999 |
En banc - Exceptions; Adverse Interest, marital relationship alone not adverse interest; Co-mingling assets, Self-Dealing, mild dementia;neutral Person appointed limited guardian. |
| PAWELEC | 1/23/2001 | Estate of Guido Visco, Jr., Deceased O.C. No. 68 of 1996 |
En banc - Exceptions; Mortgage, Default Clause - Claimant's burden to establish debts of Decedent; Assumed payments - applied to principal; Attorney's fees - equitable control of Ct.; en banc - not fact finding. |
| Pawelec | 1/9/2001 | Estate of JAMES ALBERT MINTON a/k/a JAMES A. MINTON, Deceased O.C. NO. 1018 of /1997 |
Phila. Rule 7.1.A Decree / Adjudication final unless Exceptions w/in 20 days; Assets in acct filed; additionally discovered assets subsequent filing. |
| Pawelec | 12/18/2000 | Estate of Stephen F. Fabian, Deceased O.C. No. 229 DE of /1999 |
Register of Wills jurisdiction to grant Letters Testamentary; Loudenslager Will: validity of will - burden - contestant; jurisdiction of Reg of Wills - burden - proponent; statute determines jurisdiction: county of 'last family or principal residence (domicile)'; domicile - burden - proponent by clear and satisfactory proof. |
| Pawelec | 9/11/2000 | Estate of John F. Gaudreau, Jr., Deceased O.C. No. 157 DE of /1997 |
Personal Property (P.P.); ejection w/o notice or authority; forcible possession of P.P.; affirmative duty to return P.P., violated; owner's opinion of P.P.'s value not binding on Ct. |
| Pawelec | 8/24/2000 | Estate of Irene Anderson, Deceased O.C. No. 974 DE of /1997 |
Objections to Accounting; Jointly held acct; Presumption: proceeds of joint-acct to surviving party; Burden objectant by clear & convincing evid to prove different intent at time of acct's creation. |
| Pawelec | 1/12/2000 | Estate of Catherine Ibraham, Deceased O.C. No. 1397 DE of /1999 |
Fiduciary Commissions: 'fair and just' compensation: determined by extent and character of labor and responsibilities involved. |
| PAWELEC | 1/7/2000 | Trust Estate of Maurice W. Heinritz, Settlor O.C. No. 584 of 1966 |
Revocable deed of Trust - Amendments - Restatement in entirety; Remainder; non-qualified charity - tax burden; cy pres |
| Pawelec | 1/3/2000 | Estate of Evelyn H. Britton O.C. No. 965DE of 1992 |
En banc; Exceptions: Phila. O.C. Rule 7.1.A; Rules and Procedures, including briefs of exceptant: O.C. Rule 1.2.B; Exceptions to rulings by court, or contest findings of fact or conclusions of law; Amended Exceptions; preserving appellate rights |
| Pawelec | 12/9/1999 | Estate of Joanne Bakst Blackshaw a/k/a Joanne Blackshaw, Deceased O.C. No. 191 DE of /1999 |
Will, Codicils: residuary beneficiaries; claims against Dec.’s estate proven by ’clear, precise, convincing’ evidence - LaRocca; approval of all residuary beneficiaries ”condition subsequent” not ”condition precedent”; reasonable time for approvals. |
| Pawelec | 11/5/1999 | In re: Trust Estate of Harry Sobell, Settlor O.C. No. 1683 of 1985 |
”Living Trust Agreement”; POA as attny-in-fact executing ”Irrevocable Trust”; Objectant: POA no provision authorizing creation of trusts; Grantor: physician w/ Parkinson’s disease, knowledge of future disability; clear intent of Grantor; canon of construction: two conflicting paragraphs, latter prevails - Richley Estate. |
| Pawelec | 10/19/1999 | Estate of Carola Collings, an Incapacitated Person O.C. No. 829 IC of /1999 |
Attorney’s Petition for fees and cost for valuable services performed for Estate of IC; IC’s ”chronic persistent deficits”; IC lacking knowledge of objects of her bounty; attny represented interests of Petitioners, not of IC, i.e. did not provide valuable services to Estate, therefore attny not entitled to recover fees and costs from Estate. |
| PAWELEC | 6/21/1999 | Estate of BARBARA LUCIFERO, Deceased O.C. NO. 1393 of 1994 |
Co-Administrators ordered to file acct; each filed separate acct.; Court placed burden on accountant; exceptions taken & dismissed. |
| Pawelec | 6/10/1999 | Estate of Estelle E. Engelbach, Deceased O.C. 1610 DE of /1997 |
TO SURCHARGE PERSONAL REP. Objectant’s burden: identify the property, prove D owned it at death, prove value at death, prove breach resulting in loss to estate, prove amount of loss; alleged ”Undetermined Amount”, fails burden - dismissed, see Cutler’s Estate; FIDUCIARY’S CLAIMED CREDITS against estate must be justified and vouched for, accountant’s unsupported testimony / book entries generally insufficient; LAW OF GIFTS: donee’s burden to prove donative intent and delivery by cc evid; EXECUTORY NEGLIG. Use of estate’s assets / credit / debit w/o exec’s knowledge, or personal usage by exec.; REMOVAL OF EXEC, ”drastic action”: waste, mismanagement, failure to perform duty, jeopardy to estate. |
| Herron | 5/6/1999 | Joseph J. Short, Executor of the Estate of Elsie Short v. Constantinos Pavlides, et al. O.C. January 1993, No. 516 |
Wrongful Death/Beneficiaries - Adult children who can establish pecuniary loss due to the death of a parent should all share equally in wrongful death benefits - Pecuniary loss must be grounded on reasonably continuous or past acts or conduct of the deceased through services, food, clothing, education, entertainment or gifts bestowed that have been rendered with a frequency that creates an anticipation of continuance - Pecuniary loss would not include claims for mental suffering, grief or distress of mind - The beneficiaries entitled to recover under the Wrongful Death Act include the spouse, children and parents of the deceased in the proportion they would take in the case of intestacy |
| Pawelec | 1/25/1999 | Estate of Bennie Freeman, Deceased O.C. No. 924 DE of 1996 |
TO SURCHARGE PERSONAL REP. Objectant’s burden: identify the property, prove D owned it at death, prove value at death, prove breach resulting in loss to estate, prove amount of loss; alleged ”Undetermined Amount”, fails burden - dismissed, see Cutler’s Estate; OBJECTANT’S BURDEN: to prove accountant breached applicable fiduciary duty & that loss occurred, conflicting testimony w/o independent evid insufficient to carry burden. |
| Pawelec | 1/20/1999 | Estate of Isaac Johnson, Deceased O.C. No. 1305 DE of /1997 |
Alternative beneficiary - Objections; QUESTION of SURVIVORSHIP: matter of intent, see Teacher et al; pre-printed language sufficient expression of intent, no particular words or forms required: Granting clause (pre-printed) - ”the survivors of them, and the heirs and assigns of such survivors”, Habendum clause - (same), Warranty clause - (same). |
| Pawelec | 1/7/1999 | Estate of Henry P. Zucker, Deceased O.C. No. 2336 DE of 1984 |
TESTATOR’S INTENT: cts to determine intent from the document itself & other circumstances known to testator, Taxis J. Deacon’s Estate citing Loving Estate. |
| Pawelec | 12/21/1998 | Estate of Grace E. Stobel, Deceased O.C. No. 2185 DE of 1985 |
Trust; alleged abuse of Trustee’s discretion for failure to make distributions; TRUSTEE’S DISCRETION: general rule - when discretion conferred upon Trustee w/ respect to exercise of a power, exercise not subject to control by ct. except to prevent abuse of discretion; Trustee’s good faith and proper motives. |
| Pawelec | 12/10/1998 | Estate of Selena R. Jones, Deceased O.C. No. 394 DE of /1997 |
WILL CONTEST: proponent - initial burden after which presumption of validity arises, contestant - must prove elements of lack of capacity or undue influence by cc evid.; CAPACITY (test for), see Brantlinger Will; UNDUE INFLUENCE, see Estate of Reichel. |
| Pawelec | 12/10/1998 | Estate of Larry A. Colston, Deceased O.C. No. 808 DE of 1996 |
Objectant - surcharge in unspecified amount representing value of D’s law practice; SURCHARGE: Objectant’s burden: identify the property, prove D owned it at death, prove value at death, prove breach resulting in loss to estate, prove amount of loss; alleged ”Undetermined Amount”, fails burden - dismissed, see Cutler’s Estate; FIDUCIARY’S COMPENSATION: fair and just (depends upon extent and character of labor and responsibilities involved); COMPENSATION OF ATTNY FOR ESTATE: requires ct.’s knowledge of services actually rendered; DEFENSE AGAINST SURCHARGE: justify every expense. |
| Pawelec | 12/10/1998 | Estate of Violet S. Biggans, Deceased O.C. No. 1044 DE of 1990 |
Surcharge of Assets; Burden on Objectant to: identify missing property, prove: 1. ownership at dec.’s death, 2. value at time of death, 3. failure to marshall and administer assets, 4. breach of fiduciary duty resulting in loss, 5. amount of loss; Residuary Clause; ”Nothing, nothing” Accts.; Fed. Estate Tax Return of pre-deceased husband; Testamentary intent. |
| Pawelec | 12/10/1998 | Estate of Paul Biggans, Deceased O.C. No. 302 DE of 1978 |
OBJECTION to First and Final Acct; alleged profits; ”Nothing, Nothing” acct; SURCHARGE PERSONAL REP. Objectant’s burden: identify the property, prove D owned it at death, prove value at death, prove breach resulting in loss to estate, prove amount of loss, see Cutler’s Estate; alleged ”Undetermined Amount”, Federal Tax Returns; Financial Statements; Management not necessarily Ownership; allegations of ”Dummy Corporation”, ”Dummy Corporate Director”, ”Sham” not enough to PIERCE THE CORPORATE VEIL; No PROOF OF AMOUNT OF LOSS TO ESTATE - dismissed. |
| Pawelec | 9/2/1998 | Estate of ESTHER M. NICELY, Deceased #12 May 95 No. 184 of 1995 |
Attorneys-in-Fact - claims for counsel fees and costs. |
| PAWELEC | 6/25/1998 | Estate of Robert Leslie Alloway O.C. No. 544DE of /1997 |
Objections to First and Final Accounting - Fees and Commissions: Attorney & Executor; work actually done as Attny & Exec. |
Records found: 107
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