J-A09044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GORDON D. CURTIS AND CHERYL A.                  IN THE SUPERIOR COURT OF
CURTIS, LEGAL GUARDIANS OF THE                        PENNSYLVANIA
MINOR CHILD LOGAN MICHAEL CURTIS
AND ZACHARY AARON CURTIS

                         Appellants

                    v.

NANCY E. H. CARTER

                         Appellee                    No. 2112 EDA 2013


                   Appeal from the Order February 9, 2012
                In the Court of Common Pleas of Pike County
                    Orphans' Court at No(s): 13-2010 OC


BEFORE: BOWES, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 01, 2014

      Gordon Curtis and Cheryl Curtis, legal guardians of the minor children



appeal from the February 9, 2012 Order entered by the Pike County Court of



affirm.

      The trial court set forth the facts and procedural history of this case as

follows:

            The present
      of a testamentary trust created by Edgar F. Wilson and the
      estates of Edgar and Rita A. Wilson. [Carter] was named as
      Executrix of the Estate of Edgar F. Wilson and Trustee of the
      Testamentary Trust created b
      1988. On February 7, 1989, Rita Wilson executed a Power of
      Attorney naming [Carter] her attorney-in-fact and Mrs. Wilson
J-A09044-14


       later executed a will naming [Carter] as executrix of her estate.
                                   l provided that [Carter] would be the
       sole beneficiary of her estate should Peggy Wilson, Edgar and


       administered the trust for the benefit of Rita Wilson, using her
       discretion as trustee to sell some of the estate properties to

       estate was probated in Pike County.

             On March 23, 2010[,] [Appellants] initiated an action
       against [Carter] on behalf of Logan Michael Curtis and Zachary
       Aaron Curtis, the then-minor grandchildren of the decedents.
       The Petition and Amended Petition, filed August 1, 2011 [1],
       alleged that [Carter] breached her fiduciary duty and engaged in
       self-dealing both in acting as Trustee and in administering the
       estates of the Wilsons. [Appellants] asked this [c]ourt to require
       [Carter] to provide a full and final accounting of all assets in the
       Estate[s] of Edgar Wilson and Rita Wilson; impose an interim
       constructive Trust, order disgorgement of monies and properties,
       and administer the [E]state of Edgar Wilson for the benefit of the
       grandchildren; or alternatively, to remove [Carter] as Executrix
       of the estates of Edgar and Rita Wilson.

              Specifically, [Appellants] alleged self-dealing in relation to


       court approval by Order dated June 15, 1993; and disposition of
       several other small parcels owned by Edgar and Rita Wilson.
       [Appellants] also took issue with pre-payment of a mortgage

       [Appellants] complain that Logan Michael Curtis and Zachary
       Aaron Curtis were entitled to notice of the probate of the Estate

       of an Annuity payment that named Rita Wilson as designated

       [Carter] took as sole beneficiary unde



       matter, this [c]ourt issued a very detailed Order with specific
____________________________________________


1




                                           -2-
J-A09044-14


     findings of fact and legal conclusions on February 9, 2012,
     entering judgment on behalf of [Carter] and dismissing

     Prothonotary, counsel for the parties involved did not receive
     notice of the above order until June 12, 2013. At that time,
     [Appellants] petitioned for Leave to File an Appeal Nunc Pro
     Tunc, which was granted by this [c]ourt after a hearing on the
     matter. [Appellants] filed a Notice of Appeal on July 26, 2013.




          at 1-3.

     Appellants raise the following claims of error:


     expert witness, a residential appraiser[,] as to the value of a
     parcel consisting of 69 acres more or less which was sold to
     [Carte
     valuation of the parcel in the year it was sold, when the parcel
     was acknowledged to be 69 acres, was held in trust for the
     benefit of the two minor children, and when the Trust has not
     yet been closed as admitted by [Carter]?

     2. Did the [c]ourt err in ruling that the filing of the Letters
     Testamentary in Pike County for Rita Wilson, a resident of Lehigh
     County was proper notwithstanding the fact that [Carter]
     acknowledged that Rita Wilson resided in Lehigh County for five

     attorney?

     3.   Did the [c]ourt err in finding that the instant petition
     challenging the propriety of the Notices of Beneficiary Interest in
     the Estate of Rita A. Wilson was untimely in that it was un-
     refuted that no notice was sent to Beneficiaries as defined by
     Rule and Law other than to [Carter] herself?

     4.    Did the [c]ourt err in ascribing knowledge of probate
     proceedings in Pike County to [Appellants], residents of
     Florida[,] based on the purported knowledge of a third party,
     who testified that he never received notice of any probate
     proceedings and which testimony was unrefuted?

     5.    Did the [c]ourt err in not applying the statutory provision
     prohibiting self-dealing and conflicts of interest to [Carter] who

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J-A09044-14


        conveyed assets out of the Testamentary Trust[] to herself and
        her husband and her parents when she admitted that she was a
        fiduciary and trustee of a Trust beneficiaries of which were the
        minor children?

        6. Did the [c]ourt err in holding that a mortgage created by
        [Carter] for the benefit of her and her husband could properly
        alter the provisions of a Court Order approving such sale, which
        Court Order imposed specific terms and conditions for the
        mortgage, when that Court Order was never modified?

        7. Are the Findings of Fact unsupported by the testimony and/or
        evidence presented at Trial?

        8. Are the Conclusions of Law unsupported by the testimony
        and/or evidence presented at Trial and contrary to Statutes
        and/or Rules?

        9. Are the factual conclusions set forth in the Memorandum
        Opinion unsupported by the Testimony and/or evidence
        presented at Trial and contrary to the law?

        10. Did the [c]ourt err in failing to consider that the ultimate
        disposition of all assets or nearly all of the assets of the
        Testamentary Trust and Estate went to the benefit of either
        [Carter] who was admittedly a Fiduciary or her family members?

                         -8. Otherwise stated, Appellants claim that the trial

court    erred   by



(3) determining the petition challenging the probate was untimely because

the minor alleged-beneficiaries received no notice; (4) ascribing knowledge

of the probate proceedings to Appellants through a third party; (5) not

determining that Carter had engaged in self-dealing; (6) ruling a mortgage

created for the benefit of Carter and her husband did not violate a previous




                                     -4-
J-A09044-14



court order; and (7) failing to consider that nearly all of the assets of the

estates ultimately went to Carter and her family.2 All of these claims relate



                                      ndling of, and determinations resulting from,




                                                                                  of the

                          In   re   Estate     of   Miller,   18   A.3d   1163,   1169

(Pa.Super.2011) (en banc).

         [We] must determine whether the record is free from legal error

                                          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. Where the rules of
         law on which the court relied are palpably wrong or clearly



Id. (alterations and citation omitted).




____________________________________________


2

either

are general restatements of the more specific claims previously raised.
                                gain simply broadly restates the issues

accompanied the findings of fact and conclusions of law.




                                           -5-
J-A09044-14



       A review of the terms of the Last Will and Testament of Rita Ann



executed the Will on December 29, 1990.               See Will, p. 4.   The Will



a.k.a. Peggy Curtis.      See id. at p. 1, Item II.    However, the Will further

provides as follows:

       E. In the event that my daughter, PEGGY LYNN WILSON, is
       deceased prior to reaching forty (40) years of age, then I give,
       devise and bequeath my entire estate unto NANCY CARTER of
       Greentown, Pennsylvania, the same to be hers absolutely and
       forever.

See id. at p. 2, Item II(E). The Will also appointed Carter as Executrix and

Trustee under the Will, and granted Carter all the necessary powers to

execute the duties of those positions.3 See id. at p. 2, Items III-IV.

       The record further reveals that Peggy Wilson, the mother of Logan

Michael Curtis and Zachary Aaron Curtis, died on July 26, 1997, prior to

reaching forty years of age. See Petition, pp. 2, 3; N.T. 8/1/2011, pp. 12,

14-15; N.T. 12/7/2011, pp. 108-109. Therefore, under the express terms of




Accordingly, the only notice required to probate the will was to Carter, the
____________________________________________


3
  Ms. Wilson had already executed an Irrevocable Power of Attorney naming
Carter her attorney on February 7, 1989. See Power of Attorney appended
to Petition; N.T. 8/1/2011, pp. 10-11, 53.




                                           -6-
J-A09044-14



only named beneficiary. See 231 Pa.Code § 5.6 (regarding notice required

to probate estates).

       We note that, had Rita Wilson died without a will, Logan Michael Curtis

and Zachary Aaron Curtis would have stood to divide her estate per stirpes



principles.4 See 20 Pa.C.S. § 2101 et seq.; 20 Pa.C.S. § 2514. Further, had

a challenge been timely filed, they would have had standing to challenge the

validity of the Will as possible intestate beneficiaries.   See 20 Pa.C.S. §

908(a) (a party in interest has one year to appeal probate); 20 Pa.C.S. §

2103 (non-spouse intestate successors). However, in addition to being filed

over a decade after the period in which a challenge to the validity of the Will



                                                                              5



Instead, the Petition merely takes exception with many of Carte

and actions as Executrix, Trustee, and in her capacity as Power of Attorney
____________________________________________


4
  We additionally note that had Peggy Wilson reached the age of forty prior
to her death, the estate would then have passed to her children under anti-
lapse principles. See 20 Pa.C.S. § 2514. However, because Peggy Wilson
died before her fortieth birthday, and the Will provided an alternate
testamentary structure in the event of such death, anti-lapse plays no part
in our determination of this appeal. See Estate of Kehler, 411 A.2d 748,
750 (Pa.1980) (contrary intent that appears with reasonable certainty in will
overcomes operation of the anti-lapse statute); see also 20 Pa.C.S. § 2514.
5

See
validity.



                                           -7-
J-A09044-14



acting on behalf of Rita Wilson, and requests surcharges and the removal of

Carter as Executrix.    See generally, Petition.   As non-beneficiaries under

the terms of the Will, Appellants have no standing to bring such challenges.

Appellants properly suggest that, following an appropriate hearing, the

possible remedies for such alleged malfeasance would include surcharging

the executor and/or relieving the named executor of the duties and functions

of the position.     See 20 Pa.C.S. § 3182 (removal of executor); In re



for failure to exercise common prudence, common skill and common caution

in the performance of the fiduciary's duty and is imposed to compensate



However, even if they had standing, these remedies would not provide

Appellants relief.

       Here, even assuming the alleged malfeasance occurred, surcharging

Carter and requiring her to pay the estate back would serve no purpose: she



part would only have diminished the value of assets to which she was

ulti

mismanagement of the estate, to the extent any actually happened, would

have benefitted or harmed only her own future interest. Otherwise stated,

                                                      actions. In any event,



presented establishes that Nancy Carter undertook difficult responsibilities as

                                     -8-
J-A09044-14



both Executor and Trustee for Edgar Wilson and Rita Wilson and over a

period of 20

February 9, 2012 Order, p. 9; see also generally, N.T. 8/1/2011; N.T.

12/7/2011.

        Because we agree with the trial court that Carter was the sole

beneficiary of the Estate of Rita Wilson under the express terms of the Will,6
                                                                     7
                                                                         To the



adopt and rely on the well-reasoned September 17, 2013 Pa.R.A.P. 1925(a)

Opinion of the trial court and the February 9, 2012 Order, Findings of Fact,

Conclusions of Law, and Memorandum incorporated by the 1925(a) Opinion

and upon which it is based.8

        Order affirmed.

____________________________________________


6
    See Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 (Pa.Super.2013)
    This [C]ourt may affirm [the lower court] for any reason, including such


7



to the administration of the Estate of Rita Wilson. We further note that
Carter actually distributed the entire principal of that contested Edgar Wilson
Trust to a third party for the benefit of Logan Curtis and Zachary Curtis,
despite the fact that a portion of this principal should have been distributed
                                                            neficiary. See N.T.
8/1/2011, pp. 54-55, 99-100, 103; N.T. 12/7/2011, pp. 18, 46-47, 192-194.
8

be harmless for the reasons stated, supra.



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J-A09044-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2014




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