J-A23022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF JAMES G.                     IN THE SUPERIOR COURT
    KLINGENSMITH, DECEASED                                  OF
                                                       PENNSYLVANIA
    APPEAL OF: JOSPEH KLINGENSMITH
    AND JOHN KLINGENSMITH
                                                      No. 71 WDA 2019


                Appeal from the Order Entered December 11, 2018
                In the Court of Common Pleas of Allegheny County
                      Orphans' Court at No(s): 02-11-04852


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED NOVEMBER 27, 2019

        Appellants, John Klingensmith (“John”) and Joseph Klingensmith

(“Joseph”), co-executors of the Estate of James G. Klingensmith (“James G.”

or “Decedent”), appeal from the order, dated December 6, 2018 and entered

December 11, 2018, that directed Cynthia Klingensmith (“Cynthia”),

daughter-in-law of Decedent,1 to deliver to John and Joseph certain disputed

items of jewelry and other items consisting of sports memorabilia that were

in Cynthia’s possession. After review, we vacate and remand the case with

instructions.

        We begin by setting forth our standard of review.

        Our standard of review of the findings of an Orphans’ Court is
        deferential.



____________________________________________


1Cynthia is the widow of James C. Klingensmith (“James C.”), a brother of
Appellants, who was initially the executor of Decedent’s estate, but passed
away in August of 2015.
J-A23022-19


            When reviewing a decree entered by the Orphans’
            Court, this Court must determine whether the record
            is free from legal error and the court’s factual findings
            are supported by the evidence. Because the Orphans’
            Court sits 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.

      In re Estate of Harrison, 745 A.2d 676, 678-79 (Pa. Super.
      2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000)
      (internal citations and quotation marks omitted). “The Orphans’
      Court decision will not be reversed unless there has been an abuse
      of discretion or a fundamental error in applying the correct
      principles of law.” In re Estate of Luongo, 823 A.2d 942, 951
      (Pa. Super. 2003), appeal denied, 577 Pa. 722, 847 A.2d 1287
      (2003).

In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016) (quoting In re Estate

of Whitley, 50 A.3d 203, 206-07 (Pa. Super. 2012)).

      Appellants raise the following two issues for our review:

         1. Did the testimony of Cynthia Klingensmith’s independent
            witnesses establish a prima facie case of an inter vivos gift
            despite the lack of clear, direct, and convincing evidence of
            donative intent and delivery of the alleged gifts of any of the
            property[,] which Judge McCarthy awarded to Cynthia?

         2. Was Cynthia Klingensmith, whose independent witnesses
            failed to establish a prima facie case of any inter vivos gift
            by clear and convincing evidence, entitled to testify despite
            the bar of the Dead Man’s Act?

Appellants’ brief at 4.

      We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough 9-page opinion of the Honorable Michael E.



                                      -2-
J-A23022-19



McCarthy of the Court of Common Pleas of Allegheny County, dated March 11,

2019. We conclude that Judge McCarthy’s well-reasoned opinion accurately

disposes of the issues presented by Appellants. Accordingly, we adopt his

opinion as our own with respect to the issues raised in this appeal.

      However, we note that it appears that the court erred in instructing

Cynthia to return certain items of undisputed jewelry in its order, as it is

evident she is not in possession of this jewelry, except for the cluster ring and

diamond stud earrings, which she is allowed to keep.             Rather, Vincent

Klingensmith testified that he was in possession of this jewelry. See N.T.,

7/30-31/18, at 331 (469a). Moreover, Appellants’ Exhibit 22 states that “[a]ll

jewelry [is] in the possession of Vincent Klingensmith or a gun safe in his

house.” Therefore, despite our agreement with the trial court’s analysis of the

issues raised, we are compelled to vacate its order and remand so that the

trial court is able to correct its directions as to the distribution of some of the

jewelry belonging to the estate.

      Order vacated.       Case remanded with instructions.           Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2019

                                       -3-
J-A23022-19




              -4-
                                                                                                   Circulated 10/31/2019 01:00 PM




IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

INRE:                                                         ORPHANS' COURT DIVISION

ESTATE OF JAMES G. KLINGENSMITH,                              No.     02-11-04852
DECEASED                                                              71 WDA2019




                                                     OPINION

         This action concerns the Estate of James G. Klingensmith (hereinafter "James G."
or "Decedent") who died, testate, on July 25, 2011.1 Consistent with the provisions of the
Last Will and Testament signed by James G. May 30, 2007, letters of administration were
issued to Decedent's son, James C. Klingensmith (hereinafter "James C."), on August 8,
2011.
         Decedent was a widower who, in or around 2005, elected to move from his own
residence and to reside, instead, with his son and daughter-in-law, James C. and Cynthia.
Decedent continued to reside with James C. and Cynthia until his death on July 25, 2011.
         On August 8, 2011, consistent with Decedent's last will and testament, letters
testamentary were issued to James C. Upon his appointment as executor, James C.
retained local counsel to assist and advise him in the administration of the estate. With the
assistance of counsel, James C. prepared an inventory of his father's estate which was filed
with the Register of Wills on April 19, 2012. That inventory identified an automobile,
miscellaneous household goods, a pocket watch and a de minimis insurance refund as
assets of the estate. Additionally, under the heading "ladies jewelry", the inventory set
forth an itemized list of eleven pieces of jewelry, each appraised, and all of which had a
cumulative value of $27,000.00. The total value of all items set forth in the inventory was




' The date of death indicated on the application for letters testamentary is July 25, 201 l. The parties have variously
reported the date of death as July 23, 2011 and July 27, 2011 in their respective proposed findings offact.


                                                          2

                                                                                                   Appendix 11

                                       --   -----------------------
$34,903.33. An inheritance tax return, which reflected those same values, was signed by
counsel as the preparer and was filed that same day.
           The estate remained open with little activity of record until October 2013. On or
about October 23, 2013, Joseph and John Klingensmith, through their respective counsel,
filed a Petition for Citation for a Rule to Show Cause Why a Citation Should Not Be Issued
Pursuant to 20 Pa. Cons. Stat. §3501.1. That provision of Title 20 allows such a citation to
be filed at any time after the expiration of six months from the first complete advertisement
of the original grant ofletters. By Order dated October 28, 2013, a rule was entered which
directed James C. to show cause why the requested relief: the filing of an account for the
estate, should not be granted. The rule was returnable December 6, 2013.
            On December 9, 2013, the parties attended an informal conference before the
Honorable John A. Zottola. At the conclusion of that conference, it was apparently agreed
that, in resolution of the rule to show cause, James C., in his capacity as executor, would
provide an informal accounting to all beneficiaries. Thereafter, the three brothers met on at
least two occasions to discuss the whereabouts of estate property, including jewelry,
furniture, photographs and photo negatives which Joseph and John asserted to be estate
property.2 The record reflects no further activity on behalf of the estate until October 14,
2014, on which date a status report was filed indicating that "the Estate is in litigation".
Subsequent to that filing, no further activity of record occurred until September 2015.
           James C. passed away on August 22, 2015, leaving the administration of the estate
open. On September 17, 2015, Joseph and John, having been named in Decedent's Last
Will and Testament as contingent co-executors, were sworn in as such and were issued
letters testamentary for the estate. Joseph and John have served in that capacity since that
time. As co-executors, Joseph and John pursued certain personalty of the Decedent which,
they assert, had been situate at the residence of James C. at the time of Decedent's death




2   Petition for Citation Directing Cynthia Klingensmith Appear to be Deposed and Produce Estate Property, at 115, 6.


                                                           3
                                                                                                 Appendix 12
but had not been included in the inventory filed on behalf of the estate during James,
tenure as executor.
        Specifically at issue in this matter is personalty which Cynthia and James C., had
had in their possession at the time of Decedent's death, and which had been retained by
them subsequent to the death of Decedent as property that had been gifted to them, or to
either of them individually, during the time that Decedent had resided at her home. Cynthia

has additionally contended that some items had been given to by her husband during his
lifetime or had been independently acquired by her before marriage. There is no dispute
that, throughout the time that Decedent had resided with James C. and Cynthia, Cynthia
occasionally wore jewelry pieces which are asserted in this matter to be estate property, but
which are not reflected in the inventory filed of record by James C.
       On November 9, 2015, Joseph and John, in their capacity as co-executors and on
behalf of the estate, petitioned the court for a citation directing Cynthia to "Appear and Be
Deposed and Produce Estate Property'. That petition requested that Cynthia be directed to
present herself for a deposition and to bring with her "any and all jewelry identified [in
exhibits to the petition] and other jewelry or property belonging to the late James G.
Klingensmith at the time of his death,'.
                                   '
       On November 12, 2015, the co-executors filed an additional, emergency motion.
That motion asserted that, based upon information received from a surviving daughter of
James C., other items of personal property belonging to decedent's estate, not limited to
jewelry, and had been wrongly excluded from the inventory which James C. had filed.
       On November 13, 2015, an order of court was issued which restrained Cynthia from
selling, disposing of or dissipating the personal property of the Estate of James G.
Klingensmith and directed all parties to appear in court on November 18, 2015 to
determine whether that injunction should remain in place. Apparently, it was agreed
among the parties on November 18 that Cynthia would permit the co�executors· access to
her home on November 24, 2015 for the purpose of removing household items, including
furniture, china, silverware and any other personalty of the Decedent. Such an agreement

                                                 4
                                                                                 Appendix 13
was not made part of any formal order of court. The sole order that was issued immediately
fo1lowing the November 18 hearing was a scheduling order which directed that a hearing
on the petition by the co-executors to freeze assets would be heard on January 27, 2016.
           In the interim, on December 15, 2015, a second emergency motion was filed on
behalf of the estate. That motion asserted that Cynthia had refused to comply with an
agreement among the parties that the co-executors would be permitted access to her home
for the purpose of removing estate property.3 The parties disagreed at that time, and
continued to disagree, which items of personalty constituted estate property and which had
been the property of Cynthia or gifted to Cynthia and James C. during the Decedent's
lifetime.
           The matter did not resolve and the parties proceeded to a bench trial which was
heard on July 30 and 31, 2018. At that trial, both parties acknowledged that the burden of
demonstrating the fact of acquisition by gift was on the Respondent, Cynthia, and that the
evidentiary burden assigned to Cynthia in this matter was to demonstrate donative intent
and actual delivery of each gift through "clear, precise and convincing evidence"." That
standard of proof requires a credible, detailed account of events that is distinctly
remembered by the witness and that sufficiently describes a donative intent.
           The parties' dispute over the ownership of personalty in this matter resulted, in
substantial part, from the Decedent's decision in 2005 to move from his residence and to
reside, instead, with James C. and Cynthia following the death of his wife, Angela. It
appears that, throughout that approximate six-year period that the Decedent continued to
reside with his son and Cynthia, much of the jewelry that is presently in dispute was kept at
the residence of James C. and Cynthia and, at some juncture, was placed and kept in the
personal jewelry box of Cynthia or in an armoire situate in her bedroom. Other items, such
as sports memorabilia acquired by the Decedent, was also kept at that residence.


l   It appears that movers retained by the co-executors, rather than the co-executors themselves, arrived at the house.
• Hera v. McCormick, 625 A 2d 682; 686 (Pa. Super. 1993); In re Estate ofFllckert, 337 A2d. 592 (1975)


                                                             s
                                                                                                    Appendix 14
         Although the Decedent had once maintained a safe deposit box, he discontinued
that rental sometime after he began residing with James C. and Cynthia. After Decedent
had passed, James C. and Cynthia leased a safe deposit box at PNC Bank in joint name.
Both James C. and Cynthia were signatories, and they placed in that PNC Bank box
jewelry which, Cynthia asserts, had been gifted to her as well as items and jewelry which
all parties acknowledge Decedent had retained as his own. s

         It was not disputed that, during the time that Decedent had resided with James C.
and Cynthia, Cynthia occasionally wore jewelry pieces which the Petitioners have since
asserted is estate property. Cynthia insisted that the Decedent had, in fact, gifted such
items to her during his lifetime. The personalty in dispute in this matter is property
claimed by the estate which Cynthia maintains had been gifted to her by the Decedent
during his lifetime, had been gifts received from her husband, or is property which Cynthia
had acquired before her marriage to James C.
         The parties acknowledged that the burden of acquisition of any property by inter
vivos gift from the Decedent was on the Respondent, Cynthia. Such a burden requires that
donative intent as well actual delivery of each gift to the donee during Decedent's lifetime
be demonstrated through "clear, precise and convincing evidence".                 6    That evidentiary
burden of demonstrating a deliberate, completed gift may be met through a coherent,
consistent and sufficiently detailed account:
                [T]he witnesses must be found to be credible, that the facts to
               which they testify are distinctly remembered and the details thereof
               narrated exactly and in due order, and that their testimony is so
               clear, direct, weighty, and convincing as to enable the jury to come
               to a clear conviction, without hesitancy, of the truth of the precise
               facts in issue. . . . It is not necessary that the evidence be
               uncontradicted ..., provided it 'carries a clear conviction to the
               mind' ... or carries 'a clear conviction of its truth'.
                                                    LaRocca Trust, 411 Pa 633,640
                                                    192 A 2d 409, 413 (l 963)


' See, e.g.,N.T., 232
6   Hera v. McCormick, 625 A 2d 682; 686 {Pa. Super. 1993); In re Estate ofFlickert, 337 A2d. 592 {1975)


                                                        6
                                                                                             Appendix 15
        1. Dead Man's Act
        Petitioners contend that Cynthia's claim as to the disputed personalty must fail
inasmuch as the claim relies substantially on Cynthia's own testimony and that the court
erred by permitting Cynthia to testify to the donative intent of the Decedent regarding the
jewelry or personal property that was allegedly acquired from the Decedent during his
lifetime.     Specifically, Petitioners contend that the Dead Man Act, 42 PaC.S. §5930
rendered Cynthia incompetent to testify on that topic.
        Assuming Petitioners' contentions to be correct, Respondent's supportive witnesses
were nonetheless competent to testify to having observed Cynthia wearing the jewelry
when the Decedent was present, and that Cynthia represented, and the Decedent confirmed,
at those times that the jewelry had been given to her by the Decedent. Testimony from
competent non-party witnesses with no interest in the estate described instances of the
Decedent's demonstrations of largesse or gratitude towards Cynthia, confirming that he had
given her jewelry. 7 Following those witnesses, Cynthia testified credibly to the fact that the
Decedent had made gifts of jewelry to her during his Decedent's lifetime and that such
gifts were confirmed openly by the Decedent in the presence of others. If, as in this
instance, "a valid inter vivos transfer is demonstrated by independent evidence before the
admission of any testimony by the alleged donee, the donee will be considered to represent
the interest of the decedent and will be permitted to testify". Friedem an v. Kinnen, 452 Pa.
365, 369, 305 A.2d 3, 4 (1973).
        Petitioners contended that the relationship between Decedent and Cynthia had not
been sufficiently close and affectionate to warrant a finding that the Decedent would have
made gifts of jewelry to Cynthia during the Decedent's lifetime. Credible testimony
contradicted that contention. By way of example, although one of Decedent's grandsons
testified on direct examination that he doubted that the Decedent had intended to make any
       vivo���ithia
inter                   because "My Pap, just, didn't give stuff away in that manner to


        7   See, e.g., In re Ford's Estate, 431 Pa. 185, 188, 245 A.2d 443, 445 (1968)


                                                          7
                                                                                         Appendix 16
someone he just met, so to say, that have been together for a short period of time", he
further testified that he had observed Decedent having gifted the witness' own young
daughter with jewelry and testified on cross examination that he had heard other witnesses
describe the relationship between the Decedent and Cynthia as "very close and very
loving". That witness acknowledged, in fact, that the relationship between the two was
close 8
          As a whole, the testimony provided in this matter provides little reason to doubt
that the Decedent would have had cause and occasion to present gifts of jewelry to Cynthia
from time to time, and to have noted that fact to others.


          2. Clear and Convincing Standard of Proof
          Evidence may be found to be clear, precise and convincing when the witnesses are
found to be credible, the facts to which they testify are distinctly remembered and the
details thereof narrated exactly and in due order, and the testimony is so clear, weighty and
convincing as to enable the fact finder to come to a clear conviction, without hesitancy, of
the truth of the precise facts in issue. In re Estate of Fickert, 461 Pa. 653, 337 A.2d 592
(1975).
          In the matter at hand, by averring that a completed inter vivas gift of personalty had
occurred, Cynthia assumed the burden of proving that the decedent, with donative intent,
had delivered, either actually or constructively, such property to her or to her and her
husband and that the decedent had divested himself of that personalty and had invested her
or them with requisite dominion over the property. See, Donsavage Estate, 420 Pa. 587,
218 A.2d 112 (1966); Estate of Greenberg, 298 Pa. Super. 379, 385, 444 A.2d 1224, 1227
(1982). A significant aspect of that burden is, of course, demonstrating an actual transfer CtJf ;I
ownership between individuals residing in the same household.                  In that regard,
Respondent's contentions were rendered more credible by the association of events with


' N. T.,338

                                                   8
                                                                                    Appendix 17
. ..


       particular gifts and, as stated, the corroborative testimony of the close relationship and
       observed interactions between Respondent and decedent. Petitioners ask, in effect, that
       that which Petitioner's own witnesses have confirmed be ignored.



       March   l   J 1:
                      2019




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                                                                                       Appendix 18
