J-A19014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CHRISTOPHER MARTIN,                     :   IN THE SUPERIOR COURT OF
 INDIVIDUALLY AND AS TRUSTEE OF          :         PENNSYLVANIA
 THE DANIEL R. PAUL AND SUSAN L.         :
 PAUL IRREVOCABLE ASSET                  :
 PROTECTION APT TRUST DATED              :
 12/14/2011                              :
                                         :
              v.                         :
                                         :
 SUSAN L. PAUL, INDIVIDUALLY AND         :
 AS PERSONAL REPRESENTATIVE OF           :
 THE ESTATE OF DANIEL R. PAUL            :
                                         :
                   Appellant             :
                                         :
 CORY W. MARTIN, INDIVIDUALLY            :
 AND AS PURPORTED TRUSTEE OF             :
 THE DANIEL R. PAUL AND SUSAN L.         :
 PAUL IRREVOCABLE ASSET                  :
 PROTECTION APT TRUST DATED              :
 12/14/2011                              :        No. 118 MDA 2018

               Appeal from the Order Entered January 2, 2018
              In the Court of Common Pleas of Columbia County
                   Orphans’ Court at No(s): 2016-OC-142


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                         FILED APRIL 03, 2019

      Appellant, Susan L. Paul, individually and as personal representative of

the Estate of Daniel R. Paul, appeals from the order entered in the Columbia

County Court of Common Pleas Orphans’ Court, which granted partial relief in

favor of Appellee, Christopher [A.] Martin, individually and as trustee of the

Daniel R. Paul and Susan L. Paul Irrevocable Asset Protection Trust (“APT”)

dated 12/14/2011. To the extent the order purports to award immediate and
J-A19014-18


direct ownership of the Atta Farm property to Appellee Christopher A. Martin,

we vacate and remand the order for clarification or correction. We quash the

appeal as to Appellant’s issues two and three, and remand the case for further

proceedings.

      The relevant facts and procedural history of this case are as follows.

Appellant is the mother of Appellee Christopher A. Martin and his brother, Cory

W. Martin. In 1985, Appellant married Daniel R. Paul. With the help of Mr.

Paul, Appellee Christopher A. Martin formed Christopher A. Martin Wildlife

Management, Inc. (“Company”) in 2005. Appellant and Mr. Paul purchased

real property, on June 3, 2009, located on Atta Road in Stillwater,

Pennsylvania (“Atta Farm”). On July 1, 2009, Appellant and Mr. Paul entered

into a five-year commercial lease contract with Appellee Christopher A. Martin,

individually and on behalf of the Company, to allow the Company to conduct

horse boarding and related business at the Atta Farm property. That same

day, the Company began operating a horse boarding service at Atta Farm.

      On December 14, 2011, Appellant and Mr. Paul executed a revocable

living trust agreement, the Daniel R. and Susan L. Paul Family Trust (“Family

Trust”).   The Family Trust named Appellant and Mr. Paul as settlors and

trustees of the Family Trust. The Family Trust contained several sub-trusts,

including a Survivor’s Trust and the APT.

      The Family Trust provided, in relevant part, as follows:

                        REVOCABLE LIVING TRUST
                        Declarations & Agreement

                                     -2-
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                             ~ RECITALS ~

       This Revocable Declaration of Trust and Agreement,
       referred to as the

              DANIEL R. & SUSAN L. PAUL FAMILY TRUST
                     Dated: December 14, 2011

       is hereby made and entered into…between

                  DANIEL R. PAUL & SUSAN L. PAUL
                         (a married couple)

       …hereinafter referred to as the “Settlors”….

       It is the primary purpose and intent of this Trust to provide
       for the management of the Settlors’ assets both presently
       and during any future period of disability. This Trust
       Agreement is a chosen alternative preferred to guardianship
       or formal conservatorship proceedings that are conducted in
       and supervised by a court of law. This Trust Agreement
       shall serve as a simplified means of accomplishing both
       lifetime and death transfers of both Settlors’ assets.

                                *    *    *

                            ARTICLE TWO
                       - Reservation of Rights –

          2.1. The Settlors reserve the following rights,
       individually as to their respective interest in Tenants-in-
       Common property and as to their respective Sole and
       Separate property, to be exercised at any time and from
       time to time by a written instrument effective immediately
       upon its execution during their joint lives without consent
       or participation of any other person:

                 (a) Settlors may amend this Trust, in whole or in
       part, or to revoke this Trust agreement in its entirety (by a
       writing delivered to a Trustee other than themselves if such
       Trustee is serving) and to remove any or all of their
       respective interests in their respective property transferred
       to this Trust.

                                    -3-
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                                *    *    *

          2.3. Upon the death of either Settlor, this Trust shall
       be irrevocable and non-amendable subject, however, to any
       power of appointment, right of withdrawal or right of
       revocation hereinafter granted to the Survivor concerning
       property held in the Survivor’s Trust as provided in
       Article Five.

                                *    *    *

                          ARTICLE FIVE
         - Administration/Distribution of Survivor’s Trust –

          5.1. The Survivor shall retain full (and unhindered)
       general power of appointment of all property held in the
       Survivor’s Trust, including the power to alter, amend or
       revoke, in whole or in part, any and all provisions (including
       the revocation and appointment of any Trustee of the
       Survivor’s Trust) concerning such property held in the
       Survivor’s Trust.

                                *    *    *

       The following Article (Eight) provides for the allocation,
       administration and distribution of the Trust Estate upon the
       decease of the surviving Settlor.

                              ARTICLE EIGHT
              - Estate Distribution Upon Death of Survivor –

                                *    *    *

          8.1. If any of the following named beneficiaries
       referenced below—who are receiving separate allocation(s)
       of Settlors’ (respective) properties—do not survive the last
       Settlor to die, then such allocation(s) shall be distributed as
       per the remainder Trust Estate below Section 8.2.

                                *    *    *

               (e) CHRISTOPHER A. MARTIN, Wife/Settlor’s
       son, shall receive all interest in Wife/Settlor’s property

                                    -4-
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       located at 34 Atta Road/Stillwater, Pennsylvania 17878.

          8.2. CHRISTOPHER A. MARTIN & CORY W.
       MARTIN, Wife/Settlor’s sons, shall each receive equal
       (1/2) portions of the remainder—remaining after all of
       the above allocations (if any) of the Trust Estate.

                                *    *    *

                           ARTICLE NINE
                 - Successor Trustee Appointments –

          9.1. The Settlors reserve the power to remove any
       Trustee during their joint lives and to appoint other or
       additional Trustees not presently named as Successor
       Trustee at the creation of this Trust.

                                *    *    *

         (Following is the designation of the Successor Trustee)

          9.4. Upon the (i) resignation or (ii) inability to serve
       because of a medical/mental condition causing impairment
       of normal administrative abilities (as evidenced by a medical
       certificate from his or her attending physician) or (iii) death
       of the surviving Settlor/Trustee then CHRISTOPHER
       MARTIN (Wife’s Son) shall serve as Trustee of this Trust.

                                *    *    *

                          ARTICLE SEVENTEEN
                       - Asset Protection Trust –

           17.1. BE IT KNOWN that the Settlors affirm their right of
       transfer and assignment of portions or all of their property
       of the (preceding) Revocable Trust Estate to another
       individual(s) whether by a lifetime gift or by a transfer at
       death, outright, or IN TRUST. To that end, it is the Settlors’
       intent with the funding of the following prescribed
       irrevocable sub-trust (of the Revocable Living Trust Estate)
       to preserve the principal assigned therein by vesting the
       same to the intended remainderman beneficiaries of this
       irrevocable, sub-trust component (of Settlors’ Revocable
       Living Trust Estate) hereinafter referred to and identified as

                                    -5-
J-A19014-18


       the Asset Protection Trust (APT). The primary purpose
       and intent of the APT is to reasonably avoid preventable
       governmental “spend-downs” of Settlors’ estate otherwise
       charged for services the Settlors may qualify to receive
       through state-and-federal-partnered Medicaid entitlement
       program(s) as defined under Title XIX of the Social Security
       Act/42 U.S.C. § 1396 et seq.

          17.2. Settlors hereby acknowledge and exercise the right
       to allocate, assign, and transfer any potion or all of the
       principal amount of the Revocable Living Trust Estate
       deemed under the revocable, general power of appointment
       control of the Settlors whether in cash or in kind—or directly
       from the Settlors outside the Trust (and/or directly from
       other individuals) to this Irrevocable Asset Protection Trust
       (APT) (subtrust) portion described hereunder, subject to the
       terms of this Article. All such irrevocable transfers assigned
       hereto shall be deemed a part of this APT also referred to as
       the—

                 DANIEL R. PAUL & SUSAN L. PAUL
              IRREVOCABLE ASSET PROTECTION TRUST
                    Dated: December 14, 2011

          17.3. Settlors now disclaim unhindered rights to reclaim,
       appoint or otherwise use any principal of this APT, or that
       may be transferred to this APT, to or for their benefit, their
       estate, their creditors, or their creditors’ estate—subject,
       however, to the stipulations and terms otherwise provided
       under this Article.

           17.4. Settlors retain the right to receive all
       Distributable Net Income (DNI) of this APT for their
       joint lifetimes, and to the survivor of them for his/her
       lifetime, on at least an annual or more frequent basis.

          17.5. Subject to the stipulations and terms otherwise
       provided under this Article, Trustee may not reverse or re-
       assign any allocations of corpus/principal of this APT back to
       the Settlors.

           17.6. NOTWITHSTANDING the above, in the event that
       an invasion of principal of this APT would then otherwise be
       allowable under Pennsylvania state (and federal) law—or

                                   -6-
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       under the laws of Settlors’ state-of-domicile if then other
       than Pennsylvania—without disturbing the full asset-
       preservation intent of this APT and Settlors are in personal
       need of additional funds over and above the income
       distributions provided herein to adequately care for their
       health, safety, and reasonable comfort, then Trustee may
       allocate portions of principal of this APT from time to time
       as may be necessary or appropriate in Trustee’s unhindered
       discretion for Settlors’ benefit when such needs are not
       being met by the DNI amounts (or other sources of income)
       allowable to Settlors under the terms of this APT.

                 (a) In such case, Trustee may make principal
       distributions to enhance Settlor’s provisions of food, clothing
       and shelter and other comforts if Trustee determines in its
       sole discretion that such distributions would be in Settlors’
       best interests but ONLY when taking into account the
       possible reduction or forfeiture of Medicaid (or other
       governmental) benefits that may result from any such
       distribution(s) event.

                 (b) In such case, Trustee is authorized to make
       distributions for Settlors’ benefit for payments of taxes,
       supplemental medical or therapeutic care, furniture and
       furnishings, adaptive aids, benefits overpayments (if any),
       and other such items as might be reasonably calculated to
       enhance the quality of Settlors’ life but only, however, if
       such distributions do not affect the level of the
       governmental aid and entitlements that would otherwise
       inure to Settlors or to supplant or replace any governmental
       aid or other public entitlement funds that may be endowed
       for their benefit through the establishment of this APT. To
       reaffirm: Trustee is not authorized to make any distributions
       for Settlors’ benefit that would otherwise jeopardize
       Settlors’ qualification to receive governmental aid benefits.

                                *    *    *

          17.7. …

                                *    *    *

              (b) If real estate, or other like assets customarily
       owned and transferred by deed are to be transferred to the

                                    -7-
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       APT, then the Settlors (or Trustee) shall transfer and deed
       such real estate, or other like assets, to such Trustee (who
       is then the appointee to serve as Trustee after the
       resignation, incapacitation or death of the surviving
       Settlor—as defined per Article Nine, supra) of the Revocable
       Living Trust prescribed herein.        Notwithstanding, the
       undersigned, and/or other individuals, may transfer real
       property directly to the APT.

                (c)    NOW THEREFORE, any and all such
       assets/funds/real estate transferred from the Revocable
       Living Trust to the APT or directly to the APT outside of the
       Revocable Living Trust Estate shall be transferred and
       assigned to—

                    CHRISTOPHER A. MARTIN
                          Trustee of the
                   DANIEL R. & SUSAN L. PAUL
              IRREVOCABLE ASSET PROTECTION TRUST
                    Dated: December 14, 2011.

                               *    *    *

          17.9. …

                               *    *    *

                 (b) The vested beneficiary(s) of the APT, the
       proportionate, distributable amounts of income…shall be
       defined, determined and designated as provided in Article
       Eight (supra) of this Trust as amended thereto but
       irrevocably     vested,     notwithstanding     subsequent
       amendments to said Trust, as to the initial funding date of
       this APT.

                               *    *    *

          17.10. The APT beneficiary(s) so designated to receive
       portions or all of Settlors’ revocable Trust Estate and
       portions or all of Settlors’ irrevocable APT Trust Estate (as
       per this Article) shall be determined and identified as
       provided in Article Eight (supra) and such designation(s)
       shall become irrevocable as pertaining to the assets of
       this APT upon the initial funding of the APT.

                                   -8-
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                                  *    *    *

(Daniel R. and Susan L. Paul Family Trust, dated 12/14/11, at 1-37; R.R. at

267a-303a) (some emphasis in original; emphasis within provisions added).

      On February 27, 2012, Appellant and Mr. Paul executed a deed

conveying the Atta Farm property to Appellee Christopher A. Martin, as trustee

of the APT, and put the Atta Farm property in the APT, pursuant to the Family

Trust provisions.   After Mr. Paul died testate on May 30, 2013, Appellant

administered Mr. Paul’s estate as its personal representative. Following Mr.

Paul’s death, the relationship between Appellant and Appellee Christopher A.

Martin deteriorated, resulting once in police intervention for an alleged theft.

      On September 10, 2013, Appellant ostensibly executed a Restatement

of the Family Trust (“Restated Trust”). The preamble segment of the Restated

Trust provided, in relevant part, as follows:

                        REVOCABLE LIVING TRUST

                               RESTATEMENT
                                  (of the)

              DANIEL R. & SUSAN L. PAUL FAMILY TRUST
                     Dated: December 14, 2011

            BE IT KNOWN that SUSAN L. PAUL, the undersigned, …,
         has previously established a (Co-Grantor) Revocable Living
         Trust with her now deceased spouse—Daniel R. Paul—
         Dated: December 14, 2011, wherein she and her now
         deceased     spouse     declared   themselves    as    the
         Grantors/Settlors of said Trust and reserved the right and
         privilege therein as to the survivor of them to revoke,
         amend, restate, or rename any and all provisions of said
         Trust, insofar, however, and only the extent which

                                      -9-
J-A19014-18


        pertains to those assets and/or the value(s) thereof
        held in said Trust deemed under the surviving
        spouse’s general power of appointment control.

           WHEREAS, the undersigned Settlor now desires to amend
        said Trust in many specifics and believes that the
        amendment(s) would be understood more easily if the Trust
        Agreement were RESTATED in its entirety subject to the
        terms described above.

           NOW THEREFORE, the undersigned Settlor hereby
        exercises such rights and privileges of restatement and now
        amends and restates said Trust [and] all amendments
        thereto—as provided by the Declaration:

        I, Susan L. Paul, the undersigned, declare that I am now
        the Surviving Spouse/Settlor of that certain revocable
        Declaration of Trust Agreement referred to and known as
        the—

              DANIEL R. & SUSAN L. PAUL FAMILY TRUST,
                     Dated: December 14, 2011

        and that I have elected, within compliance to applicable
        provisions therein, to amend said Trust by only to the extent
        of the general power of appointment that I have retained
        as the Surviving Spouse/Settlor of said, Trust, to wit:

        WHEREAS, under said Trust Declaration, the Settlors
        reserved the right of revocation and/or amendment to any
        and all Articles to said Trust while both were alive—and
        reserved as much to the surviving Settlor as to the extent
        of the general power of appointment that maybe retained
        by the Surviving/Spouse/Settlor—including the right to
        change beneficiary allocation(s)/designation(s); NOW,
        therefore, pursuant to such authority I hereby amend said
        trust and RESTATE said Trust, and all amendments
        thereto….
                                 *   *    *

(Restatement of the Daniel R. and Susan L. Paul Family Trust, dated 12/14/11,

at 1; R.R. at 315a) (emphasis in original). In large part, the terms of the


                                   - 10 -
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Restated Trust are substantially and materially the same as the terms of the

original Family Trust. The most striking change accomplished by the Restated

Trust, however, was to remove Appellee Christopher A. Martin as trustee and

to name Cory W. Martin successor trustee of the Restated Trust and trustee

of the APT. Notwithstanding the preamble set forth in the Restated Trust,

Appellant essentially “modified” the original Family Trust/APT to remove

Appellee Christopher A. Martin as trustee of the APT and name Cory W. Martin

as new trustee of the APT.1

       Acting on his new position, Cory W. Martin executed a quit claim deed

on August 3, 2014, purporting to transfer the Atta Farm property from “CORY

W. MARTIN, Trustee of the DANIEL R. PAUL & SUSAN L. PAUL

IRREVOCABLE ASSET PROTECTION TRUST Dated December 14, 2011,

Grantor” to “DANIEL R. PAUL AND SUSAN L. PAUL, Trustees of the

DANIEL R. & SUSAN L. PAUL FAMILY TRUST, Dated: December 14,

2011, Grantees.” (Quit Claim Deed, dated August 3, 2014, at 1; R.R. at

521a). Subsequently, Appellant executed a quit claim deed on July 6, 2015,

appearing to transfer the Atta Farm property from “SUSAN L. PAUL,

Surviving Trustee of the DANIEL R. & SUSAN L. PAUL FAMILY TRUST,


____________________________________________


1 Pennsylvania law precludes beneficiaries of trust from removing trustees
under the guise of “modifying” a trust. See Trust Under Agreement of
Taylor, 640 Pa. 629, 164 A.3d 1147 (2017) (holding exclusive means of
removal of trustee of noncharitable irrevocable trust is UTA provision for
removal of trustee at 20 Pa.C.S.A. § 7766, absent power retained via
portability clause in trust).

                                          - 11 -
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Dated: December 14, 2011, Grantor” to “CORY W. MARTIN, Trustee of

the DANIEL. R. PAUL & SUSAN L. PAUL IRREVOCABLE ASSET

PROTECTION TRUST Dated December 14, 2011, Grantee.” (Quit Claim

Deed, dated July 6, 2015, at 1; R.R. 526a).

      On August 17, 2016, Appellee Christopher A. Martin filed a petition

against Appellant and Cory W. Martin to remove Cory W. Martin as the trustee

of the APT and direct that the Atta Farm property remain an asset of the APT.

Appellant and Cory W. Martin filed an answer, new matter, and counterclaim

petition on October 18, 2016, seeking to modify/and or terminate the original

Family Trust and/or APT. On November 15, 2016, Appellee Christopher A.

Martin filed an answer and new matter to the counterclaim petition.          That

same day, during a status conference, Appellant and Cory W. Martin indicated

they wanted to sell the Atta Farm property and place the proceeds of the sale

into investments for the benefit of Appellee Christopher A. Martin, if the court

determined he was entitled to those proceeds.

      The court conducted a bench trial on July 13, 2017, during which it heard

testimony from, inter alia, Appellee Christopher A. Martin, Appellant, and Mary

Dautel, a family friend of the parties. At trial, Appellee Christopher A. Martin

testified on his own behalf that he had a falling out with Appellant in the 1990’s

or 2000, after which he did not speak to Appellant and Mr. Paul for ten or

eleven years.    Appellee Christopher A. Martin said he reconnected with

Appellant and Mr. Paul approximately in 2008, when he moved in with them.


                                     - 12 -
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After Appellant and Mr. Paul purchased the Atta Farm property, Appellee

Christopher A. Martin and his wife lived at Atta Farm while the Company

operated a horse boarding business on the farm.

     Appellee Christopher A. Martin again had a falling out with Appellant

after Mr. Paul died. While Appellee Christopher A. Martin and his wife were

still living on the Atta Farm property, Appellee’s brother, Cory W. Martin,

removed a flatbed trailer from the farm property. Appellee Christopher A.

Martin reported the incident to the police, who found the trailer at the

residence of Appellant, with whom Cory W. Martin lived, and arrested

Appellant and Cory W. Martin for stealing the equipment.            Appellee

Christopher A. Martin did not renew the lease on Atta Farm and received a

notice from Appellant’s counsel in September 2014, to vacate the property in

thirty days. By October 7, 2014, Appellee Christopher A. Martin and his wife

left the Atta Farm property. (See N.T. Trial, 7/13/17, at 6-129).

     Appellant also testified at trial.     Appellant said she and Appellee

Christopher A. Martin had a tumultuous relationship. They fell out in 1993,

after which they did not speak again until 2009. In January 2012, Appellant

attempted to punch Appellee Christopher A. Martin after the two had a verbal

altercation. In early 2013, Appellee Christopher A. Martin put out to pasture

one of Appellant’s horses boarded at Atta Farm, because Appellant had been

late several times to pay the $450.00 monthly boarding fee. After Mr. Paul

died in May 2013, Appellee Christopher A. Martin would not speak to


                                   - 13 -
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Appellant. Appellant explained she believed she owned the trailer that Cory

W. Martin had taken from the Atta Farm property in May 2014. Appellant

stated Appellee Christopher A. Martin reported the incident to police and had

Appellant and Cory W. Martin arrested, even though Appellee Christopher A.

Martin knew they merely intended to borrow the trailer. In September 2014,

Appellant sent Appellee Christopher A. Martin an eviction notice. Appellant

explained that, when Appellee and his wife left Atta Farm, they wrongfully

took with them household items, furniture, appliances, and vehicles that

belonged to Appellant.

      Appellant acknowledged she formed the Restated Trust in September

2013, to remove Appellee Christopher A. Martin as trustee of the APT and

replace him with Cory W. Martin as trustee. Appellant claimed the August 3,

2014 quit claim deed purporting to transfer the Atta Farm property from the

APT to her, as trustee of the Family Trust, was just a mistake, because she

knew she could not remove an asset from the APT which was also an

irrevocable trust. Appellant said she ameliorated the error when she executed

the July 6, 2015 quit claim deed, appearing to convey the Atta Farm property

to Cory W. Martin, as trustee of the APT. Appellant explained she had intended

to keep the Atta Farm property in the APT, despite the Restated Trust and the

2014 quit claim deed. (See id. at 145-197).

      Finally, Mary Dautel, an acquaintance of the Paul/Martin family,

testified.   Ms. Dautel stated she had visited the Atta Farm property often


                                    - 14 -
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before Appellee Christopher A. Martin and his wife vacated the property.

Immediately after Appellee Christopher A. Martin learned that Cory W. Martin

had taken the trailer from the Atta Farm property in May 2014, Appellee

Christopher A. Martin asked Ms. Dautel to go to Atta Farm to protect Appellee

Christopher A. Martin’s wife because he feared Cory W. Martin would retaliate

against them after police arrived at Appellant’s residence.           Appellee

Christopher A. Martin told Ms. Dautel he was having Cory W. Martin and

Appellant arrested for taking the trailer. Subsequently, Appellee Christopher

A. Martin asked permission from Ms. Dautel to place several of his vehicles on

her property to hide them from Cory W. Martin and Appellant. (See id. at

199-207).

      Following trial, Appellant filed a post-trial brief on August 3, 2017,

asserting, inter alia, the Orphans’ Court should remove Appellee Christopher

A. Martin as trustee of the APT pursuant to 20 Pa.C.S.A. § 7766, because he

harbored personal animosity toward Appellant.       On January 2, 2018, the

Orphans’ Court entered an opinion and verdict, which declared the Atta Farm

property irrevocably part of the APT. The decision then holds: “[T]he Court

finds as follows: Christopher [A.] Martin had an irrevocable vested interest in

the Atta Farm once the property [was] transferred to the Irrevocable Trust.

Ownership of the Atta Farm [property] must properly be transferred to

Christopher [A.] Martin.” (See Opinion and Verdict, filed January 2, 2018, at

6.)


                                    - 15 -
J-A19014-18


      Appellant timely filed a notice of appeal on January 16, 2018; Cory W.

Martin is not a party to this appeal. The Orphans’ Court ordered Appellant on

January 29, 2018, to file a concise statement of errors complained of on appeal

per Pa.R.A.P. 1925(b); Appellant timely complied on February 9, 2018.

      Appellant raises the following issues for our review:

         DID THE HONORABLE TRIAL COURT COMMIT AN ERROR OF
         LAW AND/OR AN ABUSE OF DISCRETION BY REMOVING
         THE ATTA FARM FROM THE [APT] AND AWARDING IT TO
         [APPELLEE]?

         DID THE HONORABLE [TRIAL] COURT COMMIT AN ERROR
         OF LAW AND/OR AN ABUSE OF DISCRETION IN FAILING TO
         ADDRESS THE REMOVAL OF [APPELLEE] AS TRUSTEE OF
         THE DANIEL R. PAUL AND SUSAN L. PAUL REVOCABLE
         LIVING TRUST AND IRREVOCABLE ASSET PROTECTION
         TRUST?

         DID THE HONORABLE [TRIAL] COURT COMMIT AN ERROR
         OF LAW AND/OR AN ABUSE OF DISCRETION BY FAILING TO
         ADDRESS THE REQUEST TO SELL [THE] ATTA FARM AND
         DETERMINE THE ALLOCATION OF THE PROCEEDS FROM
         SAID SALE?

(Appellant’s Brief at 4).

      Our review on appeal implicates the following principles:

         Our standard of review of the findings of an [O]rphans’
         [C]ourt is deferential.

            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.


                                     - 16 -
J-A19014-18


           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). “[T]he Orphans’ [C]ourt 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 Estate of Whitley, 50 A.3d 203, 206-07 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013).

     In her issues combined, Appellant argues she still has a vested interest

in the Atta Farm property as a beneficiary of the APT. Appellant insists she

will not receive income from the APT, under the Orphans’ Court ruling, which

frustrates the purpose of the APT. Appellant interprets the court’s ruling as

giving ownership of the Atta Farm property to Appellee Christopher A. Martin,

because he is a vested beneficiary of the APT. Appellant asserts, however,

that the APT grants Appellee Christopher A. Martin ownership of the Atta Farm

property only upon Appellant’s death. Appellant contends the Orphans’ Court

erred when it gave Appellee Christopher A. Martin immediate ownership of the

Atta Farm property.

     Appellant further complains the Orphans’ Court failed to rule on her

request to remove Appellee Christopher A. Martin as trustee of the APT under

Section 7766 of the Uniform Trust Act (“UTA”), 20 Pa.C.S.A. §§ 7701-7799.3.

Appellant avers the Orphans’ Court also failed to address Appellant’s plea for


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a court-ordered sale of the Atta Farm property and allocation of the sale

among the trust beneficiaries. Appellant concludes this Court should reverse

the Orphans’ Court’s decision to give Appellee immediate ownership of the

Atta Farm property and remand for the removal of Appellee Christopher A.

Martin as trustee of the APT and for an order to sell the Atta Farm property.

For the following reasons, we grant some limited relief.

      As a prefatory matter, “the appealability of an order directly implicates

the jurisdiction of the court asked to review the order.” Estate of Considine

v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009). “Accordingly,

this Court has the power to inquire at any time, sua sponte, whether an order

is appealable.” Id.; Stanton v. Lackawanna Energy, Ltd., 915 A.2d 668,

673 (Pa.Super. 2007).       Pennsylvania Rule of Appellate Procedure 342

enumerates Orphans’ Court orders which are immediately appealable as of

right and provides, in relevant part, as follows:

         Rule 342. Appealable Orphans’ Court Orders

         (a) General rule. An appeal may be taken as of right
         from the following orders of the Orphans’ Court Division:

         (6) An order determining an interest in real or personal
         property;

Pa.R.A.P. 342(a)(6). The Note following Rule 342 provides, in part:

         In order to facilitate orderly administration of estates, trusts
         and guardianships, the 2011 amendments list certain orders
         that will be immediately appealable without any
         requirement that the Orphans’ Court make a determination
         of finality. Orders falling within subdivisions (a)(1)-(7) no
         longer require the lower court to make a determination of

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          finality.

Pa.R.A.P. 342 Note. Rule 342(c) states: “Waiver of objections. Failure to

appeal an order that is immediately appealable under paragraphs (a)(1)-(7)

of this rule shall constitute a waiver of all objections to such order and such

objections may not be raised in any subsequent appeal.” Pa.R.A.P. 342(c).

Further, the Orphans’ Court Rules have eliminated the need for post-trial

motion practice. See Pa.O.C.R. 8.1 (effective 9/1/16) (stating: “Except as

provided in Rule 8.2, no exceptions or post-trial motions may be filed to any

order or decree of the court”).

       Instantly, in its January 2, 2018 decision, the Orphans’ Court

determined Appellee Christopher A. Martin held an irrevocably vested interest

in the Atta Farm property. To the extent the Orphans’ Court decision appears

to grant current ownership of the Atta Farm property to Appellee Christopher

A. Martin, the order is immediately appealable.2 See Pa.R.A.P. 342(a)(6).

Accordingly, we address only Appellant’s first issue regarding “ownership” of

the Atta Farm property.

       The Orphans’ Court, however, did not directly rule on Appellant’s claim

to remove Appellee Christopher A. Martin as trustee of the APT under Section



____________________________________________


2  See, e.g., In re Estate of Krasinski, 188 A.3d 461 (Pa.Super. 2018),
appeal granted, 198 A.3d 1045 (Pa. 2018) (holding order confirming
fiduciary’s sale of real property during estate administration is immediately
appealable under Rule 342(a)(6) because court confirmation and approval of
sale determines interests in real property sold).

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J-A19014-18


7766 of the UTA or Appellant’s request to compel the sale of the Atta Farm

property and distribute the proceeds to the beneficiaries.             Therefore,

Appellant’s issues on appeal concerning these matters are premature. See

Pa.R.A.P. 342(a)(1), (a)(5) (governing distributions of trust and status of

fiduciaries, respectively). Accordingly, we quash the appeal as to Appellant’s

issues two and three.

      “A trust is a fiduciary relationship; one person holds a property interest

subject to an equitable obligation to hold or use that interest for the benefit

of another.”   Rebidas v. Murasko, 677 A.2d 331, 333 (Pa.Super. 1996).

“Generally, a trust executed without reservation of power by a settlor to

revoke or reform the trust is irrevocable.        An irrevocable trust may be

rescinded by the settlor, however, if it is demonstrated that the trust was

created through fraud, duress, undue influence, or mistake.”          Id. at 333

(internal citations omitted).

      “[T]he interpretation of a trust or a will presents a question of law. As

such, 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)

(citations omitted).

         When interpreting a trust agreement, the intent of the
         settlor is paramount, and if that intent is not contrary to law,
         it must prevail. In order to ascertain the intent of the
         settlor, the court must examine: “(a) all the language
         contained in the four corners of the instrument[;] (b) the
         distribution scheme[;] (c) the circumstances surrounding
         the testator or settlor at the time the will was made or the
         trust was created[;] and (d) the existing facts.” In re

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J-A19014-18


         Scheidmantel, 868 A.2d 464, 488 (Pa.Super. 2005)
         (internal punctuation and citations omitted).

In re Cohen, 188 A.3d 1208, 1214 (Pa.Super. 2018) (some internal citations

omitted). “[T]he settlor’s intent must be ascertained from the language of

the trust, and we give effect, to the extent possible, to all words and clauses

in the trust document.”     In re Estate of Loucks, 148 A.3d 780, 782

(Pa.Super. 2016). Courts “are not permitted to construe a provision in a trust

so as ‘to destroy or effectually nullify what has always been considered the

inherent basic fundamental right of every owner of property to dispose of h[er]

own property as [s]he desires, so long as it is not unlawful.’” Id. (quoting

Estate of Pew, 655 A.2d 521, 533 (Pa.Super. 1994)).

      Pennsylvania’s UTA governs trusts in this jurisdiction and defines

“beneficiary” and “qualified beneficiary” as follows:

         § 7703. Definitions – UTC 103

                                  *     *      *

         “Beneficiary.” A person that:

            (1) has a present or future beneficial interest in a trust,
            vested or contingent; or

            (2) in a capacity other than that of trustee or protector,
            holds power of appointment over trust property.

                                  *     *      *

         “Current beneficiary.” A person 18 years of age or older
         to or for whom income or principal of a trust must be
         distributed currently or a person 25 years of age or older to
         or for whom income or principal of a trust may, in the
         trustee’s discretion, be distributed currently.

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J-A19014-18



                                  *     *      *

         “Qualified beneficiary.” Assuming nonexercise of all
         testamentary powers of appointment, a beneficiary who on
         the date the beneficiary’s qualification is determined:

            (1) is a distributee or permissible distributee of trust
            income or principal;

            (2) would be a distributee or permissible distributee of
            trust income or principal if the interests of the
            distributees described in paragraph (1) terminated on
            that date; or

            (3) would be a distributee or permissible distributee of
            trust income or principal if the trust terminated on that
            date.

                                  *     *      *

20 Pa.C.S.A. § 7703. Several provisions of the UTA govern modification of an

irrevocable trust under certain circumstances, e.g., Section 7740.1 provides,

in relevant part:

         §  7740.1.       Modification   or   termination  of
         noncharitable irrevocable trust by consent – UTC 411

         (a) Consent        by    settlor    and    beneficiaries.—A
         noncharitable irrevocable trust may be modified or
         terminated upon consent of the settlor and all beneficiaries
         even if the modification or termination is inconsistent with a
         material purpose of the trust. A settlor’s power to consent
         to a trust’s modification or termination may be exercised by
         a guardian, an agent under the settlor’s general power of
         attorney or an agent under the settlor’s limited power of
         attorney     that   specifically  authorizes    that   action.
         Notwithstanding Subchapter C (relating to representation),
         the settlor may not represent a beneficiary in the
         modification or termination of a trust under this subsection.

         (b)   Consent by beneficiaries with court approval.—A

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J-A19014-18


        noncharitable irrevocable trust may be modified upon the
        consent of all the beneficiaries only if the court concludes
        that the modification is not inconsistent with a material
        purpose of the trust. A noncharitable irrevocable trust may
        be terminated upon consent of all the beneficiaries only if
        the court concludes that continuance of the trust is not
        necessary to achieve any material purpose of the trust.

                                 *     *      *

        (d) Consent by some beneficiaries with court
        approval.—If not all the beneficiaries consent to a proposed
        modification or termination of the trust under subsection (a)
        or (b), the modification or termination may be approved by
        the court only if the court is satisfied that:

           (1) if all the beneficiaries had consented, the trust
           could have been modified or terminated under this
           section; and

           (2) the interests of a beneficiary who does not consent
           will be adequately protected.

20 Pa.C.S.A. 7740.1(a)-(b), (d). Section 7740.2 provides, in part:

        §  7740.2.       Modification   or   termination   of
        noncharitable irrevocable trust by court - UTC 412

        (a) Unanticipated circumstances.—The court may
        modify the administrative or dispositive provisions of a
        noncharitable irrevocable trust, make an allowance from the
        principal of the trust or terminate the trust if, because of
        circumstances that apparently were not anticipated by the
        settlor, modification, allowance or termination will further
        the purposes of the trust. To the extent practicable, the
        modification or allowance shall approximate the settlor’s
        probable intention.

        (b) Inability to administer effectively.—The court
        may modify the administrative provisions of a noncharitable
        irrevocable trust if adherence to the existing provisions
        would be impracticable or wasteful or impair the trust’s
        administration.


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J-A19014-18


                                   *     *      *

20 Pa.C.S.A. 7740.2(a)-(b).

      Instantly, the record makes clear the original settlors (Appellant and Mr.

Paul) established a Family Trust, which became a noncharitable, irrevocable

trust upon the death of Mr. Paul. Likewise, Mr. Paul’s death set into motion

the various restrictions on amendments, modifications, or removals of a

trustee of the Family Trust. The APT was a sub-trust in the Family Trust and

held the Atta Farm property as an asset of the sub-trust. The APT is also a

noncharitable irrevocable trust and identifies Appellee Christopher A. Martin

as an irrevocable beneficiary of the APT. While Appellant is still alive, however,

Appellee Christopher A. Martin’s role regarding the Atta Farm property is

limited to trustee with a vested beneficial interest in the APT. After Appellant

dies, then Appellee Christopher A. Martin will have a direct ownership interest

in the Atta Farm property, according to the trust documents.          Meanwhile,

Appellee Christopher A. Martin has no immediate ownership right to the Atta

Farm property, which remains an irrevocable APT asset until Appellant’s death.

      Several provisions of the APT dictate Appellant’s right to continue to

receive regular and lifetime distributions from the APT and when the APT

trustee must make those distributions. (See Article 17.4 of the APT; R.R. at

299a.) Additionally, Articles 17.6, 17.6(a), 17.6(b), and 17.9 authorize the

APT trustee to supplement distributions from the APT trust to the APT settlors

to support their health, safety, and comfort, or in the event the settlors


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J-A19014-18


become mentally or medically incapacitated.        See Articles 17.6, 17.6(a),

17.6(b), and 17.9; R.R. at 299a, 300a.) Therefore, Appellant, as the only

surviving settlor, is entitled to distributions from the APT during her lifetime.

See In re Cohen, supra. While Appellant lives, she is a current beneficiary

of the APT, which contains the Atta Farm property as an asset.          Appellee

Christopher A. Martin is entitled to ownership of the Atta Farm property only

after Appellant’s death. See 20 Pa.C.S.A. § 7703; In re Estate of Loucks,

supra; In re Estate of McFadden, supra.

      Based upon the foregoing, the record belies Appellant’s argument that

she has an immediate ownership interest in the Atta Farm property. See In

re Cohen, supra; In re Estate of Whitley, supra.             Rather, Atta Farm

remains an asset of the APT until Appellant’s death.        See In re Cohen.

Accordingly, we vacate the Orphans’ Court’s order, because it purports to

award immediate and direct ownership of the Atta Farm property to Appellee

Christopher A. Martin, and remand for clarification or correction. We quash

the appeal as to Appellant’s issues two and three and remand for further

proceedings.

      Order vacated; appeal quashed in part.         Case is remanded to the

Orphans’ Court for clarification or correction of order and for further

proceedings. Jurisdiction is relinquished.

      President Judge Emeritus Ford Elliott joins this memorandum.

      Judge Nichols concurs in the result.


                                     - 25 -
J-A19014-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/03/2019




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