J-A33023-16

                           2017 PA Super 120

HAROLD B. MURPHY, JR., WILLIAM J.          IN THE SUPERIOR COURT OF
MURPHY AND SIDNEY C. KARNEKE                     PENNSYLVANIA

                      Appellant

                 v.

STEVE KARNEK, KARNEK FAMILY
PARTNERS, LP AND RANGE RESOURCES
APPALACHIA, LLC

APPEAL OF: STEVE KARNEK, KARNEK
FAMILY PARTNERS, LP

                                               No. 438 WDA 2016


            Appeal from the Order Dated February 29, 2016
          In the Court of Common Pleas of Washington County
                   Civil Division at No(s): 2015-1827


                                           IN THE SUPERIOR COURT OF
HAROLD B. MURPHY, JR., WILLIAM J.                PENNSYLVANIA
MURPHY AND SIDNEY C. KARNEKE

                      Appellants

                 v.

STEVE KARNEK, KARNEK FAMILY
PARTNERS, LP AND RANGE RESOURCES
APPALACHIA, LLC

                                               No. 550 WDA 2016


            Appeal from the Order Dated February 29, 2016
          In the Court of Common Pleas of Washington County
                   Civil Division at No(s): 2015-1827
J-A33023-16


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

OPINION BY SOLANO, J.:                                 FILED APRIL 21, 2017

        Before the Court are consolidated cross-appeals filed by Appellants

Steve Karnek and Karnek Family Partners, LP, and Appellees Harold B.

Murphy, Jr., William J. Murphy, and Sidney C. Karneke from the trial court’s

February 29, 2016 order disposing of the parties’ cross-motions for summary

judgment.1 We affirm.

        This matter arises out of an intra-family dispute regarding ownership

of oil and gas underlying a parcel of land in Washington County that the

parties have referred to as the “Scott Heirs’ Farm.”       Determination of the

ownership interests depends upon a series of deeds and wills. The two

documents at the center of this dispute are a deed to John and Mary Pirih

(the “Pirih Deed”) and the will of Bessie Krynovske.

        The Scott Heirs’ Farm was conveyed by members of the Scott family to

Joe Krynovske and Bessie Krynovske, husband and wife, in 1931.             The

conveyance was by a general warranty deed that described the property as

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Pursuant to Pennsylvania Rule of Appellate Procedure 2136(a), the parties
have agreed that for purposes of these consolidated appeals, Steve Karnek
and Karnek Family Partners, LP will be designated as Appellants, and Harold
B. Murphy, Jr., William J. Murphy, Sidney C. Karneke, and Range Resources
Appalachia, LLC will be designated as Appellees. See Letter, 6/28/16. Range
Resources has not actively participated in this case, either in the trial court
or in this Court.



                                           -2-
J-A33023-16


consisting of 137 acres 20 perches in Smith Township.2 The deed excepted

certain mineral rights that are not at issue here.

       On September 1, 1938, the Krynovskes separated the oil and gas

rights from the rest of the property by a series of transactions involving a

third party, A. Kirk Wrenshall. First, as husband and wife, the Krynovskes

conveyed the entire Scott Heirs’ Farm property to Wrenshall.           Second,

Wrenshall conveyed the Scott Heirs’ Farm back to Joe (but not to Bessie) by

a deed containing the following clause:

       EXCEPTING AND RESERVING hereout and herefrom all the oil
       and gas in or underlying said parcel of ground, together with the
       perpetual and irrevocable right, privilege, and easement of
       entering upon said lands and searching for, drilling wells, sinking
       shafts, mining, digging, extracting, taking and carrying away all
       of the oil and gas in or under said lands, or that may be found
       therein or thereunder; and, also, the right of possession and
       use of so much of said premises at all times as may be
       necessary to the practical carrying out of the purposes and
       provisions of this exception, provided, however, that no wells
       shall be drilled within 200 feet of the buildings on said tract of
       land.

Third, Wrenshall conveyed to Bessie “for and during the term of her natural

life, with remainder over in fee to Joe Krynovske . . . ALL the Oil and Gas in

and underlying all that parcel of ground [comprising the Scott Heirs’ Farm]

. . . BEING the same Oil and Gas and rights as Excepted and Reserved in

Deed of A. Kirk Wrenshall, unmarried, to Joe Krynovske, dated September 1,

____________________________________________


2
 A perch is 1/160th of an acre. Black’s Law Dictionary (10th ed. 2014).
Some documents in the record locate the farm in Burgettstown.



                                           -3-
J-A33023-16


1938 . . . .” The parties agree that as a result of these transactions, (1) Joe

owned the Scott Heirs’ Farm, but not the farm’s oil and gas and related

interests (the “Oil and Gas”), and (2) Bessie owned a life estate in the Oil

and Gas and Joe owned a remainder interest in the Oil and Gas.

      In 1939, Joe and Bessie, as husband and wife, executed the Pirih

Deed, which conveyed the Scott Heirs’ Farm to John and Mary Pirih.          The

Pirih Deed contained an “EXCEPTING AND RESERVING” clause that was

identical to the clause in the Wrenshall deed to Joe. It stated:

      EXCEPTING AND RESERVING hereout and herefrom all the oil
      and gas in or underlying said parcel of ground, together with the
      perpetual and irrevocable right, privilege, and easement of
      entering upon said lands and searching for, drilling wells, sinking
      shafts, mining, digging, extracting, taking and carrying away all
      of the oil and gas in or under said lands, or that may be found
      therein or thereunder; and, also, the right of possession and
      use of so much of said premises at all times as may be
      necessary to the practical carrying out of the purposes and
      provisions of this exception, provided, however, that no wells
      shall be drilled within 200 feet of the buildings on said tract of
      land.

The deed continued:

      THIS CONVEYANCE is also made UNDER AND SUBJECT TO a
      deed of A. Kirk Wrenshall, to Bessie Krynovske dated September
      1st, 1938 . . . by which conveyance all of the oil and gas rights
      were conveyed to the said Bessie Krynovske.

One of the issues in this appeal is whether the Pirih Deed somehow

terminated Bessie’s life estate in the Oil and Gas and made Joe and Bessie

owners of the Oil and Gas as tenants by the entireties.




                                     -4-
J-A33023-16


        Joe died intestate in 1959.            He was survived by Bessie and five

children: Helen Goodman, Mary Krynovske, Olga Murphy, Joseph Karneke,

and Steve Karnek, Sr. The parties agree that if Bessie still had a life estate

in the Oil and Gas at the time of Joe’s death, then, under the then-prevailing

law of intestacy,3 Bessie inherited one-third (5/15) of Joe’s remainder

interest in the Oil and Gas and each of the five children inherited one-fifth of

the remaining two-thirds (that is, 2/15 each) of the Oil and Gas.4

        Bessie died testate on November 9, 1963.               Her Last Will and

Testament, dated June 9, 1962,5 provided in Paragraph SECOND:

        I give, devise and bequeath all my real estate property to my
        daughter, namely Helen Goodman. Property consists of on [sic]
        lot 30 by 150 feet of the Gordon Land Co. Plan, Lot #192,
        situated at 567 Buena Vista Street, Canton Twp., Washington
        County, Penna. She is to receive all royalties from 7 oil wells
        situated on John Scott’s heirs Farm, R.D. #3, Burgettstown, Pa.
        The wells are owned by Wolf Head Oil Refinery Co., Inc. Farm
____________________________________________


3
    The Intestate Act of 1947, 1947 P.L. 80 (Apr. 24, 1947), as amended.
4
    Each of their interests in the remainder therefore was:
     Bessie:          5/15,   or   33.333%;
     Helen:           2/15,   or   13.333%;
     Mary:            2/15,   or   13.333%;
     Olga:            2/15,   or   13.333%;
     Joseph:          2/15,   or   13.333%;
     Steve Sr.:       2/15,   or   13.333%.
5
  The will was probated under the name “Bessie Krznovke a/k/a Bessie
Krznovcke a/k/a Bess Krznovski.” The parties have acknowledged that the
spellings of the principals’ names have changed over the years.         See
Appellees’ Brief at 5 n.4. No party contends that the different spellings of
the names are material to this case.



                                           -5-
J-A33023-16


      No. 1013S. Also Helen Goodman will be her sister, Mary
      Krynovske, guardian and she is to live in the house during her
      entire life.

The will contained no residuary clause.        Although there is no specific

discussion of the issue in Bessie’s will, the parties agree that one of Bessie’s

objectives was to take care of her daughter Mary, who apparently was

unable to care for herself, by providing her with a guardian, a house (the

devised property in Canton Township), and income. See Trial Ct. Op. at 7;

Appellees’ Brief at 23.   The will appointed Helen as Mary’s guardian and

required Helen to live in the house, apparently so that she could care for

Mary there. Letters testamentary were issued to Helen, and on October 27,

1964, the Orphans’ Court issued an Adjudication and Decree awarding Helen

the Canton Township property; the decree made no mention of Oil and Gas

rights on the Scott Heirs’ Farm or of royalties from those rights.         See

Washington County Orphans’ Court Adjudication and Decree, No. 269 of

1964. One of the questions in this appeal is what interests in the Oil and

Gas rights, if any, each of Bessie’s children inherited upon Bessie’s death.

      Bessie’s five children all are now deceased:

      •     Mary Krynovske died intestate in 1967. She was unmarried and

      had no children.

      •     Helen Goodman died testate in 1987. She left the house and lot

      in Canton Township to Olga Murphy, and stated that “all the rest,

      residue and remainder” of her estate was bequeathed to her brother,



                                     -6-
J-A33023-16


      Steve Karnek, Sr. In a handwritten note at the bottom of her will, she

      explained: “My brother, Steve Karnek, Sr., deserves all of what little I

      possess as he and I cared financially (physically healthwise), to Bessie

      Krynovske, mother and Mary, sister — both ill.          No other family

      member aided.”

      •     Steve Karnek, Sr. died intestate in 1988, survived by his wife,

      Lucy Karnek, and his son, Steven Karnek, Jr. (referenced in the

      litigation as “Steve Karnek”). In 2010, Lucy and Steve conveyed their

      interests to Karnek Family Partners, LP, a limited partnership. In 2014,

      Karnek Family Partners leased its interest in the Oil and Gas under the

      Scott Heirs’ Farm to Range Resources Appalachia, LLC.

      •     Joseph Karneke died intestate in 1989, survived by his son,

      Sidney Karneke.

      •     Olga Murphy died testate in 2013. Her will left her entire estate

      to her two sons, Harold Murphy, Jr. and William Joseph Murphy.

      On April 6, 2015, the heirs of Joseph and Olga — Harold B. Murphy,

Jr., William Joseph Murphy, and Sidney C. Karneke (“the Murphy Plaintiffs”)

— filed the instant quiet title action against Steve Karnek and Karnek Family

Partners (“the Karnek Defendants”) and Range Resources in which they

sought a declaratory judgment regarding ownership of the Oil and Gas.

Specifically, the Murphy Plaintiffs asked the trial court to declare that Karnek

Family Partners owns 50%, Harold and William Murphy each own 12.5%,


                                     -7-
J-A33023-16


and Sidney Karneke owns 25% of those rights. They reached this result by

assuming that (1) Bessie’s life estate and Joe’s remainder interest remained

intact after execution of the Pirih Deed, (2) when Joe died, Bessie inherited

one-third of Joe’s remainder interest and the five children equally divided the

remaining two-thirds; (3) when Bessie died, the five children equally divided

Bessie’s one-third interest among themselves; and (4) when each of the five

children died, their interests then passed according to their wills or the

intestacy laws.6

____________________________________________


6
    The Murphy Plaintiffs calculate each of the parties’ interests this way:
    • After Joe’s death, Helen, Mary, Olga, Joseph, and Steve Sr. each owned
    a 0.13333 remainder interest in the Oil and Gas rights (see fn. 4, supra).
    • Upon Bessie’s death, Bessie’s 0.33333 interest was divided equally
    among her five children, so that each received an additional interest of
    0.06667 (0.33333 ÷ 5). That meant that each child’s interest increased to
    0.20.
    • Because Mary died first and intestate, her interest was divided among
    her four siblings, so that they each received an additional interest of 0.05
    (0.20 ÷ 4). That meant that each of the four remaining children’s
    interests increased to 0.25.
    • Helen died second, and her will gave her 0.25 interest to her brother
    Steve Sr. as part of the residue of her estate. That increased Steve Sr.’s
    interest to 0.50 (0.25 + 0.25). Steve Sr.’s interest passed to his wife and
    son, who then conveyed it to Karnek Family Partners. The Murphy
    Plaintiffs therefore concluded that Karnek Family Partners’ interest is 50%.
    • Joseph died next. His interest of 0.25 was inherited by his son Sidney
    Karneke. The Murphy Plaintiffs (which include Sidney Karneke) therefore
    concluded that Sidney Karneke’s interest is 25%.
    • Lastly, Olga’s interest of 0.25 was inherited by her sons, Harold Murphy,
    Jr. and William Joseph Murphy, who therefore have an interest of 0.125
    (12.5%) each (0.25 ÷ 2).



                                           -8-
J-A33023-16


       The Karnek Defendants filed a counterclaim asking the trial court to

quiet title in their favor, enter an order ejecting the Murphy Plaintiffs from

any possessory rights in the Oil and Gas, and issue an order determining the

rights of the parties to the Oil and Gas. They claimed that 100% of the Oil

and Gas is owned by Karnek Family Partners. They reached this result by

assuming that: (1) the Pirih Deed caused the Oil and Gas rights to be owned

by Joe and Bessie as tenants by the entireties; (2) Bessie therefore inherited

100% of those rights upon Joe’s death; (3) Bessie’s will devised 100% of

those rights to Helen; (4) Helen’s will devised all of her rights to her brother

Steve Sr.; (5) Steve Sr.’s interest was inherited by his wife and son; and (6)

Steve Sr.’s wife and son ultimately conveyed their interests to Karnek Family

Partners.

       The    parties    filed   cross-motions    for   summary    judgment.7    On

February 29, 2016, the trial court issued an opinion and order in which it

agreed with the Murphy Plaintiffs that following the execution of the Pirih

Deed, Bessie continued to own a life estate in the Oil and Gas and Joe

continued to own the remainder interest. When Joe died intestate in 1959,

Bessie inherited one-third of Joe’s remainder interest and each of Joe’s five

children equally divided the rest.        Trial Ct. Op. at 2.   The trial court then
____________________________________________


7
  Defendant Range Resources did not participate in the summary judgment
proceedings. After becoming aware of the ownership dispute, Range
Resources started paying rents and royalties into escrow while awaiting
direction from the court. Trial Ct. Op. at 3.



                                           -9-
J-A33023-16


departed from the Murphy Plaintiffs’ analysis and concluded that when

Bessie died in 1963 and her life estate disappeared, her one-third interest in

the remainder interest passed, pursuant to her will, to Helen, from whom it

then ultimately passed to Karnek Family Partners.      Id. at 5-7. Thus, the

court determined the ownership interests in the Oil and Gas to be:

             Harold Murphy – 1/12th (.08333, or 8.3%);

             William Murphy – 1/12th (.08333, or 8.3%);

             Sidney Karneke – 1/6th (.16667, or 16.7%);

             Karnek Family Partners – 2/3rds (.66667, or 66.7%).8

The trial court ordered Range Resources to distribute rents and royalties

according to these shares.




____________________________________________


8
  The court announced its decision in terms of fractions of the estate, rather
than percentages, but for ease of reference we shall employ decimals here.
The court agreed that upon Joe’s death, each of the five children inherited a
0.13333 interest in Joe’s remainder interest in the Oil and Gas rights. The
court concluded that when Bessie died, Bessie’s 0.33333 interest went to
Helen, increasing Helen’s interest to 0.46666. When Mary died, her 0.13333
interest was divided equally among the remaining four children, adding
0.03333 to each of their interests. Thus, Helen’s interest increased to
0.49999. The other three children’s interests increased to 0.16666 (1/6th).
That is the ultimate interest inherited by Sidney Karneke, Joseph’s son.
That same interest was inherited by Olga and then split equally by her
children, Harold and William Murphy, giving them each an interest of
0.08333 (1/12th). Karnek Family Partners received the 0.16666 interest
inherited by Steve Sr. and his heirs plus the 0.49999 interest that Steve Sr.
inherited from Helen, for a total interest of 0.66665 (2/3rds).



                                          - 10 -
J-A33023-16


      Both the Murphy Plaintiffs and the Karnek Defendants filed appeals

from the February 29, 2016 order, and this Court consolidated those

appeals.

      The Karnek Defendants, as designated Appellants, raise the following

issues:

      1. Whether the Trial Court erred in ruling that Bessie Krynovske
      acquired a life estate and her husband, Joe Krynovske, held the
      remainder interest in the oil and gas following the conveyance to
      John and Mary Pirih in the deed dated [February 8,] 1939?

      2. Whether the Trial Court erred in failing to determine the true
      intent of Joe and Bessie Krynovske as to their type of ownership
      of the oil and gas based on the Pirih Deed EXCEPTION and
      RESERVATION clause?

      3. Whether the Trial Court erred in failing to hold the severance
      of the oil and gas estate in the Pirih Deed was a reservation of
      the oil and gas in the Grantors, Joe and Bessie Krynovske, as
      Tenants by the Entirety thereby extinguishing the life estate of
      Bessie Krynovske and the remainder interest of Joe Krynovske?

      4. Whether Bessie Krynovske was a stranger in title in the Pirih
      Deed reservation thereby failing to vest entireties ownership of
      the oil and gas, in Bessie and Joe Krynovske?

      5. Whether the Trial Court erred in ruling the Karnek Family
      Partners, LLP are owners of a two-thirds (2/3s) interest in the Oil
      and Gas Estate instead of owners of the entire estate?

Appellants’ Brief at 4-5.

      In their cross-appeal, the Murphy Plaintiffs, as designated Appellees,

raise the following issue:

      Did the trial court err in holding the Will of Bessie Krynovske
      devised her 1/3 interest in the oil and gas underlying the farm of
      the Samuel Scott heirs to Helen Goodman when both her Will
      and the Decree of Distribution specifically described the real

                                    - 11 -
J-A33023-16


       estate being devised to Helen Goodman as “property consists of
       on lot 30’ by 150’ of the Gordon Land Co. Plan, Lot No. 192,
       situated at 567 Buena Vista Street, Canton Twp., Washington
       County, Penna.” And her Will specifically bequeathed only the
       “. . . royalties from seven oil wells situated on John Scott’s heirs
       farm . . .”

Appellees’ Brief at 2-3.9        In brief, the parties’ issues challenge the trial

court’s interpretation of the Pirih Deed and Bessie’s will.

       In reviewing an order granting or denying summary judgment, this

Court applies the following principles:

       Our scope of review of a trial court’s order granting or denying
       summary judgment is plenary, and our standard of review is
       clear: the trial court’s order will be reversed only where it is
       established that the court committed an error of law or abused
       its discretion.

       Summary judgment is appropriate only when the record clearly
       shows that there is no genuine issue of material fact and that
       the moving party is entitled to judgment as a matter of law. The
       reviewing court must view the record in the light most favorable
       to the nonmoving party and resolve all doubts as to the
       existence of a genuine issue of material fact against the moving
       party. Only when the facts are so clear that reasonable minds
       could not differ can a trial court properly enter summary
       judgment.

Shamis v. Moon, 81 A.3d 962, 968-69 (Pa. Super. 2013) (citations

omitted).




____________________________________________


9
  The Murphy Plaintiffs also listed as an issue whether the trial court
correctly ruled in their favor with respect to the Karnek Defendants’ issues.



                                          - 12 -
J-A33023-16


            The Pirih Deed (Appeal by the Karnek Defendants)

       The parties agree that Bessie Krynovske had a life estate in the Oil and

Gas underlying the Scott Heirs’ Farm after the September 1, 1938, deed

from Wrenshall to Bessie that granted that interest. See Appellants’ Brief at

12. The Karnek Defendants argue, however, that the Krynovskes’ deed of

the Scott Heirs’ Farm to the Pirihs in 1939 somehow transformed the

Krynovskes’ interest in the Oil and Gas from a life estate in Bessie and

remainder in Joe, to a tenancy by the entireties in Bessie and Joe.10 They

contend that this transformation occurred as a result of the “Exception and

Reservation” clause in the Pirih Deed, which reads:

       EXCEPTING AND RESERVING hereout and herefrom all the oil
       and gas in or underlying said parcel of ground, together with the
       perpetual and irrevocable right, privilege, and easement of
       entering upon said lands and searching for, drilling wells, sinking
       shafts, mining, digging, extracting, taking and carrying away all
       of the oil and gas in or under said lands, or that may be found
       therein or thereunder; and, also, the right of possession and
       use of so much of said premises at all times as may be
       necessary to the practical carrying out of the purposes and
       provisions of this exception, provided, however, that no wells
       shall be drilled within 200 feet of the buildings on said tract of
       land.

       THIS CONVEYANCE is also made UNDER AND SUBJECT TO a
       deed of A. Kirk Wrenshall, to Bessie Krynovske dated September
       1st, 1938 and recorded in the Recorder’s Office of Washington
       County, Pennsylvania, in Deed Book Vol. 623, Page 251, by
____________________________________________


10
  Property held as a tenancy by the entireties is jointly owned by a husband
and wife and passes to the surviving spouse upon the other’s death. See In
re Estate of Bullotta, 798 A.2d 771, 774 (Pa. Super. 2002), aff’d, 838
A.2d 594 (Pa. 2003).



                                          - 13 -
J-A33023-16


      which conveyance all of the oil and gas rights were
      conveyed to the said Bessie Krynovske.

See Appellants’ Brief at 10-11 (quoting second paragraph; emphasis in that

paragraph added by Karnek Defendants).

      The Karnek Defendants’ argument is premised on the emphasized

language in the foregoing provision, which states that Wrenshall’s deed to

Bessie conveyed “all of the oil and gas rights . . . to . . . Bessie Krynovske.”

The Karnek Defendants argue that the word “all” demonstrates that the

Krynovskes did not intend “that Bessie’s ownership of the oil and gas be

limited to a Life Estate interest” and that instead the intent was for Joe and

Bessie to own “all” of the Oil and Gas as tenants by the entireties.       See

Appellants’ Brief at 13.

      In support of this construction, The Karnek Defendants surmise that

Joe “had to believe” that Wrenshall was a “straw party” used to sever the Oil

and Gas rights so that the Krynovskes could sell the surface land to the

Pirihs while retaining the Oil and Gas rights. The Karnek Defendants further

surmise that Joe, “as a lay person, didn’t understand or agree with the legal

concept of a Life Estate”; never intended “that Bessie’s ownership in the oil

and gas be limited to a Life Estate interest”; intended, as shown by the Pirih

Deed, “that Bessie be considered owner of all of the oil and gas”; and

declared in the Pirih Deed “his and Bessie’s intent that they would own the

entire fee in the oil and gas as Tenants by the Entireties.” Appellants’ Brief

at 13 (emphasis in original). The Karnek Defendants argue that because

                                     - 14 -
J-A33023-16


ownership of the Oil and Gas reverted to Bessie and Joe as tenants by the

entireties, their survivor (who turned out to be Bessie) would be the sole

owner of the Oil and Gas rights after the other died.

      When interpreting deeds, “the court’s ‘primary object must be to

ascertain and effectuate what the parties intended.’” Mackall v. Fleegle,

801 A.2d 577, 581 (Pa. Super. 2002) (quoting Brookbank v. Benedum-

Trees Oil Co., 131 A.2d 103, 107 (Pa. 1957)). The following rules of

construction apply:

      (1) the nature and quantity of the interest conveyed must be
      ascertained from the instrument itself and cannot be orally
      shown in the absence of fraud, accident or mistake and we seek
      to ascertain not what the parties may have intended by the
      language but what is the meaning of the words; (2) effect must
      be given to all the language of the instrument and no part shall
      be rejected if it can be given a meaning; (3) if a doubt arises
      concerning the interpretation of the instrument it will be resolved
      against the party who prepared it; (4) unless contrary to the
      plain meaning of the instrument, an interpretation given it by
      the parties themselves will be favored; (5) to ascertain the
      intention of the parties, the language of a deed should be
      interpreted in the light of the subject matter, the apparent object
      or purpose of the parties and the conditions existing when it was
      executed.

Mackall, 801 A.2d at 581 (quoting Brookbank, 131 A.2d at 107 n.6)

(quotation marks and ellipses omitted)).     As with any question of law, we

review the trial court’s construction of a deed de novo.

      We disagree with The Karnek Defendants’ interpretation of the deed,

which appears to be based on mere speculation regarding Joe’s intent and is

inconsistent with our rules of construction. See Mackall, 801 A.2d at 581


                                    - 15 -
J-A33023-16


(“we seek to ascertain not what the parties may have intended by the

language but what is the meaning of the words”). The Pirih Deed’s words

explicitly recognize that the conveyance made by that deed is “UNDER AND

SUBJECT TO” Wrenshall’s deed to Bessie that created Bessie’s life estate and

Joe’s remainder interest in the Oil and Gas. The Pirih Deed’s “Exception and

Reservation” Clause relating to Oil and Gas rights is identical to the clause

excepting Oil and Gas rights in Wrenshall’s deed of the Scott Heirs’ Farm to

Joe, showing that, just as Oil and Gas was excepted from the conveyance to

Joe, it also was excepted from the conveyance to the Pirihs.            The Pirih

Deed’s language thus indicates that the parties’ intent was not to change

the life estate in the Oil and Gas that Bessie had obtained under the deed to

her from Wrenshall; the Pirih Deed says that explicitly. That the Pirih Deed

described the deed from Wrenshall to Bessie as transferring “all” of the Oil

and Gas rights to Bessie does not alter this conclusion; the Wrenshall deed

did convey all of the Oil and Gas to Bessie — for her life.

      For this reason, we disagree with The Karnek Defendants’ argument

that the Exception and Reservation Clause in the Pirih Deed was a

reservation of Oil and Gas rights to the Krynovskes, rather than an exception

to the rights conveyed to the Pirihs. A reservation is the creation of a right

or interest that did not previously exist; but if the thing or right exists at the

time of conveyance, the deed’s language is treated as making an exception

Ralston v. Ralston, 55 A.3d 736, 741 (Pa. Super. 2012). Here, Bessie’s


                                     - 16 -
J-A33023-16


life estate existed before the conveyance to the Pirihs; the Pirih Deed

therefore was excepting the Oil and Gas rights subject to that life estate,

rather than creating a new right or interest in the Oil and Gas.

         In this connection, the confusing discussion of the “Stranger in Title”

rule that The Karnek Defendants have included in their brief is beside the

point.    “The common law rule is that generally a reservation/exception of

rights in a stranger to a deed is ineffective to transfer any interests to the

stranger.”     In re Condemnation by County of Allegheny of Certain

Coal, Oil, Gas, Limestone and Mineral Props., 719 A.2d 1, 3 (Pa.

Cmwlth. 1998) (hereinafter Allegheny).             The Karnek Defendants’ brief

raises the specter of this “rule” by noting that “[o]ne could argue that Bessie

was a Stranger in Title, which would make the Deeded interest null and

void.” Appellant’s Brief at 15. The Karnek Defendants then contend that the

Commonwealth Court in Allegheny “adopted a modified form of the

common law principle requiring the Court [to] examine the Grantor[’]s

‘Intent’.” Id. at 15-16. The claimed import in this case of both this “rule”

and of the Commonwealth Court’s purported modification of it11 are not at all

____________________________________________


11
   We are not bound by decisions of the Commonwealth Court. Mariner
Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 283 n.12 (Pa. Super.
2016).     In any event, we disagree with The Karnek Defendants’
interpretation of Allegheny. That case did not disregard or reinterpret the
stranger-in-title rule in order to effectuate the grantor’s intent. Rather, the
court in Allegheny first held that an attempted reservation of mineral rights
in a third party was ineffective. Allegheny, 719 A.2d at 3. In doing so, it
(Footnote Continued Next Page)


                                          - 17 -
J-A33023-16


clear, but the Karnek Defendants apparently engage in this discussion to

emphasize their desire that we examine the intent of the Krynovskes (and,

in particular, that of Joe Krynovske) in signing the Pirih Deed. See id. at 17

(Allegheny “emphasizes the obligation of this Court to closely examine the

intentions of Joe Krynovske when he approved and executed the Pirih

Deed”).

      We do not disagree with the importance of examining the parties’

intent. But, contrary to the Karnek Defendants’ argument, we discern the

parties’ intent by looking to the language of the deed.   See Mackall, 801

A.2d at 581.     Here, the plain language of the relevant clause in the Pirih

Deed states that the deed is “UNDER AND SUBJECT TO” creation of the Life

Estate in Bessie under the Wrenshall deed to Bessie.      That clause is not

ambiguous, and we therefore need look no farther to determine what the

parties meant.     The “Stranger in Title” rule and the Karnek Defendants’

argument regarding that rule thus have no bearing on this analysis.

      The Karnek Defendants also rely on Alexa v. Alexa, 23 Pa. D. & C. 3d

164 (C.P. Beaver Cnty. 1982), for the proposition that, “[w]hen a wife joins
                       _______________________
(Footnote Continued)

recognized that “there is a legal rule against attempting to accomplish by the
language herein utilized what the parties wanted to accomplish, namely,
reserve/except an interest in a non-party to the deed.” Id. at 4. Then, the
court examined the intent of the grantor when determining who owned the
mineral rights in light of the failed reservation. See id. at 4 (holding that
grantor retained interest). Allegheny, we conclude, has no bearing on
discerning what the parties intended by the Exception and Reservation
Clause at issue here.



                                           - 18 -
J-A33023-16


her husband as a grantor in a deed to convey husband’s separately owned

property, Pennsylvania courts have held that a new ownership interest can

be created.” Appellants’ Brief at 16. We are not persuaded by Alexa. First,

decisions of the courts of common pleas are not binding on this Court.

Ambrogi v. Reber, 932 A.2d 969, 977 n.3 (Pa. Super. 2007), appeal

denied, 952 A.2d 673 (Pa. 2008). Second, the portion of Alexa Appellants

cite is dicta. See In re Jacobs, 936 A.2d 1156, 1162 (Pa. Super. 2007)

(finding dicta from common pleas court decision “neither on point nor

instructive”). Third, the dicta in Alexa concerned whether a new interest

could be created where none existed before, while the issue in this case is

whether a reservation in a deed, which expressly recognizes a prior deed,

changes the interest created by the prior deed.

     For the foregoing reasons, we hold that the trial court correctly

concluded that until Joe’s death, Bessie had a life estate and Joe had a

remainder interest in the Oil and Gas.

      Bessie Krynovske’s Will (Appeal by the Murphy Plaintiffs)

     The Murphy Plaintiffs agree that the Pirih Deed did not alter Bessie’s

life estate in the Oil and Gas. They also agree that when Joe died in 1959,

Bessie retained her life estate in the Oil and Gas and Joe’s remainder

interest passed by intestacy to Bessie and to his children, with Bessie

receiving a 1/3rd interest in that remainder interest, and each of Joe’s five

children receiving an equal share of the rest (that is, they each received a


                                    - 19 -
J-A33023-16


2/15ths interest). See Trial Ct. Op. at 2. But the Murphy Plaintiffs disagree

with the trial court’s holding about what happened to these interests when

Bessie died.     The trial court held that Bessie’s 1/3 interest passed to her

daughter Helen under Paragraph SECOND of Bessie’s will, but the Murphy

Plaintiffs contend that the will did not dispose of Bessie’s 1/3 interest and

that the 1/3 interest therefore passed by intestacy to Bessie’s five children,

for equal division among them. If the Murphy Plaintiffs are correct, Karnek

Family Partners would end up with only one-half of the Oil and Gas rights

and the Murphy Plaintiffs would divide the other half among themselves;

under the trial court’s decision, however, Karnek Family Partners owns two-

thirds of the Oil and Gas rights and the Murphy Plaintiffs’ remaining shares

are reduced accordingly.12

       Paragraph SECOND of Bessie’s will devised and bequeathed “all of my

real estate property” to Helen.         It then said, “Property consists of” the lot

containing the house in Canton Township and made reference to royalties

from oil wells on the Scott Heirs’ Farm, but did not otherwise mention

Bessie’s interest in the Oil and Gas underlying the Scott Heirs’ Farm.

Therefore, the Murphy Plaintiffs argue that the real property devise to Helen
____________________________________________


12
   In the trial court, the Karnek Defendants took the position adopted by the
trial court that, through her will, Bessie devised her Oil and Gas interest to
Helen. See Karnek Defs.’ Cross-Mot. for Summ. J. at 13-15. They do not
argue this issue in their brief to this Court, see Appellants’ Brief at 24
(briefly mentioning will issue), and did not file a brief in response to the
Murphy Plaintiffs’ cross-appeal.



                                          - 20 -
J-A33023-16


under this paragraph was only of the Canton Township lot because only that

lot was specifically described by the phrase, “[p]roperty consists of.”       The

Murphy Plaintiffs point out that the receipt of royalties can be held

separately from any other interest in oil and gas, so that the will’s reference

to those royalties does not encompass the underlying Scott Heirs’ Farm Oil

and Gas rights. More generally, they argue that Bessie’s intent was to leave

a house where Helen could take care of her disabled daughter Mary, and

also to leave royalty income that Helen could use for Mary’s care.            The

Murphy Plaintiffs conclude that “[o]wnership of the gas in situ at the Scott

Heirs’ Farm was clearly not on [Bessie’s] mind and irrelevant to her plan [to

take care of Mary].” Appellees’ Brief at 23.

      In interpreting a will, we are mindful of the following principles:

      It is now hornbook law (1) that the testator’s intent is the
      polestar and must prevail; and (2) that his intent must be
      gathered from a consideration of (a) all the language contained
      in the four corners of his will and (b) his scheme of distribution
      and (c) the circumstances surrounding him at the time he made
      his will and (d) the existing facts; and (3) that technical rules or
      canons of construction should be resorted to only if the language
      of the will is ambiguous or conflicting or the testator's intent is
      for any reason uncertain.

In re Houston's Estate, 201 A.2d 592, 595 (Pa. 1964) (citations omitted).

Thus, the primary goal of the construing court is to effectuate the intent of

the testator. “In order to ascertain the testamentary intent, a court must

focus first and foremost on the precise wording of the will, and if ambiguity

exists, on the circumstances under which the will was executed.”             In re



                                     - 21 -
J-A33023-16



Estate of Weaver, 572 A.2d 1249, 1256 (Pa. Super.) (citations omitted),

appeal denied, 582 A.2d 325 (Pa. 1990). The words of a will are not to be

viewed in a vacuum, and “specific words or phrases will be rejected when

they subvert or defeat the testator’s whole testamentary scheme and divest

the bounty from those whom he obviously intended to benefit.”        Id. The

interpretation of a will is a question of law, and thus our standard of review

is de novo and our scope of review is plenary. In re Estate of McFadden,

100 A.3d 645, 650 (Pa. Super. 2014) (en banc).13

       “One who writes a will is presumed to intend to dispose of all his

estate and not to die intestate as to any portion thereof.” In re Grier’s

Estate, 170 A.2d 545, 548 (Pa. 1961) (citation omitted). Moreover, the

enumeration of particular items in a will, following a gift in general terms,

does not reduce the effect of the general terms. See Risk’s Appeal, 1 A.

85, 86 (Pa. 1885); In re Rzedzianowski’s Estate, 25 A.2d 600, 604 (Pa.

Super. 1942); 31 Standard Pa. Practice 2d § 150:55 (2012) (“The mere

designation or enumeration of particular property in a residuary clause of a

will is generally held not to make the legacy or devise of such property

specific rather than general”).



____________________________________________


13
   In the absence of a contrary intention appearing in the will, a testatrix’s
will is construed according to the law at the time of her death. In re Linn’s
Estate, 258 A.2d 645, 648 (Pa. 1969).



                                          - 22 -
J-A33023-16


       In Risk’s Appeal, the testator’s will stated, “For my wife, Mary E.

Risk, to have all bonds and all the income thereof, and all money now on

hand, and all the personal property is hers.” 1 A. at 86. The Court held that

although some personal property was specifically mentioned, all of the

testator’s personal property was included “under the general words, ‘all the

personal property is hers.’” Id.

       In Rzedzianowski’s Estate, the testator’s will stated that he left “all

his modest property, consisting of fields and three lots” to one person, Anna

Borkowska. 25 A.2d at 601. When the testator died, he had $2,267.66,

which was not explicitly mentioned in his will. Id. This Court concluded that

the phrase “all my modest property” was not restricted by the subsequent

description of particular property (fields and three lots), and that Anna

Borkowska thus inherited the $2,267.66. Id. at 604. The court reasoned

that “[t]he enumeration in the will of particular items after the gift in general

terms ‘of all my property’ by the use of the words ‘consisting of,’ etc., did

not abridge or cut down the effect of the general words.”14



____________________________________________


14
   The will in Rzedzianowski’s Estate also expressly stated the testator’s
wish that his family receive nothing, thus overcoming the presumption that
“an heir is never to be disinherited except by plain words or necessary
implication.” 25 A.2d at 603. While there is no similar expression of intent to
disinherit anyone in Bessie Krynovske’s will, we find Rzedzianowski’s
Estate instructive in construing a general gift followed by the enumeration
of specific items.



                                          - 23 -
J-A33023-16


      Instantly, Bessie’s will stated in relevant part, “I give, devise and

bequeath all my real estate property to my daughter, Helen Goodman.”

Compl., Ex. B (emphasis added) (application for probate containing will of

Bessie Krynovske). The trial court concluded that by devising “all” of her real

property to Helen, Bessie intended Helen to receive her interest in the Oil

and Gas. Trial Ct. Op. at 6-7. Oil and gas are “real property.” See

Duquesne Natural Gas Co. v. Fefolt, 198 A.2d 608, 610 (Pa. Super.

1964) (“So far as the law of property is concerned the ownership of oil and

gas is similar to that of coal, where there are three estates of land, the coal

itself, the surface and the right of support”). Therefore, the trial court held,

Bessie’s will conveyed the Oil and Gas rights to Helen, and that interest did

not pass to her other children by intestacy.

      We agree with the trial court that the description of the Canton

Township lot, which followed the gift of “all my real estate property,” did not,

as the Murphy Plaintiffs argue, reduce the general devise. See Trial Ct. Op.

at 7; Risk’s Appeal, 1 A. at 86; Rzedzianowski’s Estate, 25 A.2d at 601.

The trial court’s interpretation of the will is also consistent with the

presumption against partial intestacy. See Grier’s Estate, 170 A.2d at 548.

Moreover, it is in harmony with Bessie’s general intent in drafting her will: to

care for Mary by giving her a place to live and by giving Mary’s guardian

(Helen) income to support them both. Trial Ct. Op. at 7 (“We will not read

[the description of Bessie’s house] to immediately reduce what she had just


                                     - 24 -
J-A33023-16


given to Helen, especially since she was attempting to give Helen an

income”). Although the Murphy Plaintiffs contend that “[o]wnership of the

oil and gas in situ at the Scott Heirs’ Farm was clearly not on [Bessie’s] mind

and irrelevant to her plan,” Appellees’ Brief at 23, we agree with the trial

court that giving Helen ownership of the Oil and Gas would further Bessie’s

goal of providing income for Helen and Mary, especially since existing

royalties were “based on [Bessie’s] life estate” and might no longer be

available after Bessie’s death. See Trial Ct. Op. at 6-7. In sum, we discern

no error in the trial court’s conclusion that Bessie’s will conveyed her 1/3rd

interest in the Oil and Gas to Helen.

      For the foregoing reasons, we affirm the trial court’s February 29,

2016 order disposing of the parties’ cross-motions for summary judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




                                    - 25 -
