J-A30021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF BLANCHE BEURY          :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: PATRICK BEURY,               :
 MICHAEL DAVID APPEL AND                 :
 MICHELLE LEE APPEL                      :
                                         :
                                         :
                                         :   No. 418 WDA 2018


                   Appeal from the Order, February 26, 2018,
              in the Court of Common Pleas of Allegheny County,
                     Orphans' Court at No(s): 202 of 2016.


BEFORE:    SHOGAN, J., KUNSELMAN, J., and STRASSBURGER*, J.

MEMORANDUM BY KUNSELMAN, J.:                       FILED MARCH 19, 2019

      Patrick Beury, Michael Appel, and Michelle Appel (“Appellants”) appeal

from the orphans’ court’s order admitting to probate a handwritten document

signed by Blanche Beury (“Decedent”) as her valid will.     Upon review, we

affirm.

      The facts are as follows:

      Decedent was an 82 year old widow. For a number of months, Decedent

had been suffering from liver cancer.

      Decedent had three adult children: Patrick, Richard, and Patricia.

Patricia died many years ago, but had two children, Michael and Michelle

Appel, who, at the time of these proceedings, were adults. Decedent’s son

Richard lived with her and had a car detailing shop on the property behind the

house.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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        Near the end of March 2015, Decedent spoke with an attorney by phone

about transferring her home to Richard.     However, because Decedent was

having a serious surgical procedure the next day and did not know when they

could meet, the attorney suggested creating a will instead. She explained how

Decedent would create it herself, given the circumstances, and what language

to include. While on the phone with the attorney, Decedent handwrote a will.

According to the attorney, Decedent was clearheaded and understood what

she told her. After she hung up with the attorney, Decedent ripped up what

she had written. Decedent then handwrote the following:

             I, Blanche, intend to leave my house at 455 Montgomery
        Avenue to my son Richard Beury.

        (s) Blanche Beury

        Not long thereafter, on June 4, 2015, Decedent died. She had no formal

will.

        After Decedent’s death, Richard sought probate of her handwritten

document as her last will and testament.          The hearing officer in the

Department of Court Records, Wills/Orphans’ Court, by order dated November

24, 2015, denied Richard’s petition for probate, concluding that the

handwritten document did not constitute a will.      Richard appealed to the

orphans’ court.




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    The orphans’ court held a hearing, and issued a memorandum opinion.1

The orphans’ court later issued a final order, granting Richard’s appeal and

directing that the document offered as Decedent’s last will and testament be

admitted to probate and filed of record.

    Appellants timely filed a notice of appeal to this Court on March 22, 2018.

Both the orphans’ court and the parties complied with Pa.R.A.P. 1925.

    On appeal, Appellants raise the following issue:

       1. Whether the orphans’ court abused its discretion either in an
          error or misapplication of the law [when it determined] that the
          proffered writing constituted the will of Decedent?

See Appellants’ Brief at 4.

       Our standard of review in such matters is narrow:

       In a will contest, the hearing judge determines the credibility of
       the witnesses. The record is to be reviewed in the light most
       favorable to appellee, and review is to be limited to determining
       whether the trial court's findings of fact were based upon legally
       competent and sufficient evidence and whether there is an error
       of law or abuse of discretion. Estate of Reichel, 400 A.2d 1268,
       1269–70 (1979). Only where it appears from a review of the
       record that there is no evidence to support the court's findings or
       that there is a capricious disbelief of evidence may the court's
       findings be set aside. Estate of Masciantonio, 141 A.2d 362,
       365 (1958).

Estate of Tyler, 80 A.3d 797, 802 (Pa. Super. 2013) (quoting In re Bosley,

26 A.3d 1104, 1107 (Pa. Super. 2011)).



____________________________________________


1 Appellants previously appealed to this Court from the orphans’ court’s
opinion. However, because it was not a final order, we quashed the appeal.
See In Re Estate of Blanche Beury, 1921 WDA 2016, order (April 3, 2017).

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      Appellants contend that the document written by Decedent specifically

did not include the words “last will and testament”, “give”, “devise”, or

“bequeath”, despite the attorney telling her to include these words so that she

could write a will.   According to Appellants, because Decedent deliberately

eliminated this language when rewriting the document, after specifically being

advised to use those words, it is clear that she did not intend to make a will

and have her house pass to Richard upon her death. Consequently, they claim

the orphans’ court erred in concluding that the document was testamentary

and in admitting the handwritten document to probate. Appellant’s Brief at

10, 31.

      The orphans’ court concluded that the handwritten document was

testamentary. Orphan’s Court Opinion, 11/21/16, at 3a. We agree.

      The law regarding wills is well settled.

      [T]he general rule [is] that the testator's intent, if it is not
      unlawful, must prevail. Moreover, the testator's intention must be
      ascertained from the language and scheme of his will; it is not
      what the Court thinks he might or would have said in the existing
      circumstances, or even what the Court thinks he meant to say,
      but is what is the meaning of his words.

Estate of Shelly, 950 A.2d 1021, 1025 (Pa. Super. 2008) (internal citations

omitted, emphasis in the original), appeal denied, 962 A.2d 1198 (Pa. 2008).

      Our determination focuses on whether we are faced with a
      document that is testamentary as a matter of law,
      nontestamentary as a matter of law, or ambiguous, in which case
      extrinsic evidence is to be considered to resolve the ambiguity.

Id. at 1026 (citation omitted).



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        In reviewing the document offered for probate, the orphans’ court

acknowledged the well settled principle that “[i]f the instrument is in writing

and signed by the decedent at the end thereof and is an otherwise legal

declaration of his intention which he wills to be performed after his death, it

must be given effect as a will or codicil, as the case may be.” Kauffman's

Estate, 76 A.2d 414, 416 (Pa. 1950); Hengen’s Estate, 12 A.2d 119, 120

(Pa. 1940).

        Looking only at the four corners of the handwritten document, without

considering any extrinsic evidence, we conclude that the language set forth

therein, clearly supports the orphans’ court’s determination that the document

reflects a testamentary disposition.

        Consistent with the legal principle articulated in Kauffman’s Estate for

establishing that a document is testamentary, Decedent handwrote the

document offered for probate, and signed it at the end of its text.

        Additionally, the document set forth a declaration as to what Decedent

wanted to happen with her house. In writing the document, Decedent used

the word “intend”. Generally, “intend” is defined as “to have in mind . . .

something to be done or brought about; plan”.2        Decedent wanted Richard

to have the house.




____________________________________________


2   See https://dictionary.com/browse/intend (last visited on 2/14/19).



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        Moreover, Decedent indicated in the document when she wanted this to

happen.     Decedent used the word “leave”, which connotes a permanent

departure or to “have remaining behind after going . . . .”3 Thus, by using the

word “leave”, it is evident that Decedent intended the disposition of her house

to occur after her death.

        The interpretation that the document was testamentary is further

supported by the fact that at the time of this writing, Decedent was seriously

ill and had impending surgery. Our Supreme Court has held that where a

decedent was “quite ill” the words “‘I want Mamie to have my House’

necessarily must be taken to refer to a time in the future, to wit, after the

death of the testatrix.” Hengen’s Estate, 12 A.2d at 120.

        Moreover, contrary to Appellants’ argument, “[a] writing need not

assume any particular form or be couched in language technically appropriate

to its testamentary character to take effect as a will or a codicil.” Id.   “If a

testator intends to make a testamentary gift, it can be done in many ways

and in many forms, and the intent, as we have often said, is the pole-star.”

Estate of Shelly, 950 A.2d at 1026 (citation omitted). Thus, the words “last

will and testament”, “give”, “devise”, and/or “bequeath” were not necessary

to effectuate Decedent’s testamentary intent, as Appellants argue.           We

therefore conclude that the orphans’ court did not commit an error of law or




____________________________________________


3   See https://dictionary.com/browse/leave (last visited on 2/14/19).

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J-A30021-18



abuse of discretion when it determined that the document offered for probate

in this matter was testamentary.

       To the extent that the orphans’ court considered the document to be

ambiguous, and extrinsic evidence was necessary to clarify the nature or

intent of the writing, the testimony, as credited by the orphans’ court, also

supports the conclusion that the document offered for probate in this case was

testamentary.4

       Decedent      wrote     the    document   based   upon    the   attorney’s

recommendation to do a will after she learned that Decedent was having

surgery the next day and did not know when they would be able to meet to

do a deed transfer.       Although Decedent wrote the document without using

certain words, despite the attorney’s advice to include them, Decedent’s

elimination of those words does not show a contrary intent, as Appellants

argue. If Decedent had intended a nontestamentary disposition, such as a

deed transfer, Decedent simply could have waited until after the surgery to

make the transfer, making the writing unnecessary, as was initially discussed.
____________________________________________


4 As is evident from our discussion above, extrinsic evidence was not needed
to discern the nature of Decedent’s handwritten document. “Generally,
extrinsic evidence of testamentary intent is inadmissible where a writing is
clearly a will; it is only where there is a real doubt or real ambiguity as to the
character of the writing and the intent of the decedent as expressed therein,
that extrinsic evidence will be admissible to show the intent of the decedent.
In other words if the paper sought to be probated is free from ambiguity on
its face, extrinsic evidence as to the maker's intention is inadmissible.” In re
Moore's Estate, 277 A.2d 825, 826 (Pa. 1971) (citations omitted). However,
neither party raised an objection or issue regarding its admission in this case.



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Instead, however, as the orphan’s court observed, “Decedent made the

decision to write a will over choosing a joint tenant right of survivorship

because she was having liver surgery the next day.” Orphans’ Court Opinion,

11/21/16, at 4a. The orphans’ court also noted that, at the time, Decedent

was “clearheaded” and able to understand what the lawyer had advised her.

Id.

      Moreover, the evidence supported Decedent’s testamentary wish to give

Richard the house as articulated in her handwritten document. The orphans’

court explained:

      [T]he testimony supported that [Decedent] wished to give the
      home to her son for several reasons. [Richard] resided with
      [Decedent] and had done so his entire fifty years of life. [Richard]
      testified that [Decedent] wanted to give him the house because
      he had “looked out” and “took care” of [Decedent]. In addition,
      she didn’t want [Richard] to lose his auto-detailing business that
      was also located on the property, behind the residence.

Orphans’ Court Opinion, 11/21/16, at 3-4.

      Based on the foregoing, we find that the orphans’ court did not commit

an error of law or abuse its discretion when it determined that the handwritten

document offered for probate was testamentary and constituted the last will

and testament of Decedent. The orphans’ court therefore properly admitted

it to probate. Thus, we affirm the orphans' court’s order.

      Order affirmed.




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J-A30021-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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