J-S77010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF KENNETH HIXON,                   IN THE SUPERIOR COURT OF
DECEASED                                                PENNSYLVANIA

APPEAL OF: KATHRYN E.
DUNKLEBARGER
                                                       No. 899 MDA 2017


                   Appeal from the Order Entered May 4, 2017
                 In the Court of Common Pleas of Fulton County
                      Civil Division at No(s): 14 of 2016 OC


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED FEBRUARY 12, 2018

        Kathryn E. Dunklebarger, Administratrix of the Estate of Kenneth R.

Hixon, appeals from the order, entered on May 4, 2017, that directed her to

file an account of her administration of the Estate in response to Betty

Sturgeon’s Petition for Citation to Show Cause Why an Account Should Not

be Filed (“Petition”). After review, we affirm.

        The trial court’s opinion that accompanied its order that is the subject

of this appeal sets forth the factual and procedural history of this case, as

follows:

              Kenneth R. Hixon, resident of Fulton County, Pennsylvania,
        died testate on September 20, 2014. Mr. Hixon was not married
        and had no children, but maintained a will dated September 20,
        20[0]4. On October 10, 2014, Mr. Hixon’s Will was accepted for
        probate by the Register of Wills of Fulton County, and Letters of

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*   Former Justice specially assigned to the Superior Court.
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       Administration were granted to Kathryn E. Dunklebarger as
       Administratrix.

              Mr. Hixon’s Will had bequeathed the entirety of the Estate
       to his brother, David K. Hixon, and also named him to serve as
       Executor of the Estate. However, David K. Hixon predeceased
       Mr. Hixon on August 8, 2012, leaving David Hix[]on’s estate to
       pass to his children. Betty Sturgeon, who filed the Petition
       before the [c]ourt, is one of David K. Hixon’s children.[1] Ms.
       Sturgeon served as Mr. Hixon’s caregiver for fifteen years and
       was designated by Mr. Hixon as beneficiary to his Allianz and
       Modern Woodsman policies. The present conflict arises because
       the Estate has not paid inheritance taxes due on these two
       policies, which Ms. Sturgeon believes must be paid under the
       terms of Mr. Hixon’s Will.

              In response to the Estate’s failure to pay inheritance taxes
       on these policies, Ms. Sturgeon filed a Notice of Claim in the
       amount of $142,497.20, against the Estate on September 15,
       2015, making her a creditor to the Estate.1 Presently, Ms.
       Sturgeon requests an accounting of the Estate under 20 Pa.
       C.S.[] §3501.1, which states that “a personal representative
       may be cited to file an account at any time after the expiration
       of six months from the first complete advertisement of the
       original grant of letters.” Eleven months have passed since the
       letters were original[ly] granted to Ms. Dunklebarger, who has
       never filed an account of the Estate.

              1 This amount accounts for “the inheritance
              taxes due, claims for reimbursement for
              payments made by Ms. Sturgeon on behalf of
              Mr. Hixon, and tangible personal property
              belonging to Ms. Sturgeon which was located
              at Mr. Hixon’s home at the time of his death.”

            After a phone conference on February 8, 2016, the parties
       agreed that the [c]ourt shall decide whether Ms. Sturgeon has
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1 Upon further review by the trial court in response to Ms. Dunklebarger’s
motion for reconsideration, the court recognized its error and struck the
statement that Ms. Sturgeon is a child of Mr. Hixon’s brother. See Trial
Court Opinion #2 (TCO #2), 6/30/17, at 2.



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        standing to petition for an accounting on the papers alone,
        without briefing or hearing. Therefore, this matter is now ripe
        before this Court.

Trial Court Opinion #1 (TCO #1), 5/4/17, at 1-2. Based on the tax clause

contained in Mr. Hixon’s will,2 the trial court concluded that “Ms. Sturgeon

had standing to petition [the trial court] to compel an accounting because

she had a valid claim against the Estate to pay the inheritance taxes

associated with the Modern Woodsman and Allianz policies.” Id. at 4. The

accompanying order directed “that the Executor of the Estate of Kenneth R.

Hixon, Kathryn E. Dunklebarger, must file an account of her administration

of the Estate within thirty (30) days or receipt of this Order.” Order, 5/4/17.

        Thereafter, on May 19, 2017, Ms. Dunklebarger filed a motion for

reconsideration. On May 31, 2017, the court signed an order directing Ms.

Sturgeon to file a response to the motion; however, that order was not

entered on the docket until June 6, 2017. Despite this delay, Ms. Sturgeon

had previously filed her response to Ms. Dunklebarger’s motion on May 31,
____________________________________________


2   The tax clause in Mr. Hixon’s will states:

        I direct my hereinafter named Executor … to pay all estate,
        inheritance, succession and other transfer taxes, of whatever
        nature and by whatever jurisdiction imposed, and interest and
        penalties in respect thereto, assessed against my estate or
        payable by reason of my death, with respect to any and all
        property, life insurance and other interests comprising my estate
        for death tax purposes, whether or not such property or interests
        pass under this will or any codicil thereto, without
        reimbursement as if such taxes were administration expenses.

TCO #1 at 2-3. See also Petition, Exh. A.



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2017. Additionally, Ms. Dunklebarger filed an appeal to this Court on June

2, 2017. She also filed a first and intermediate accounting for the Estate on

June 6, 2017, as directed by the court in its May 4, 2017 order.

       The court then issued an order on June 8, 2017, in connection with Ms.

Dunklebarger’s appeal, directing her to file a statement of errors complained

of on appeal. She complied on June 19, 2017. Next, on June 20, 2017, the

court issued an order setting forth a timeline, which encompasses the

documents and orders we described above. See Order, 6/20/17. The court

also   discussed   that   it   could   decide   Ms.   Dunklebarger’s   motion   for

reconsideration despite her filing of an appeal to this Court.                  Id.

Specifically, the court set forth what it termed “findings”:

       a. Generally, if an appeal is taken, the trial court may no longer
          proceed further in the matter. Pa.R.A.P. 1701(a).
       b. However, the trial court is empowered to “Grant
          reconsideration of the order which is the subject of the appeal
          or petition if an application for reconsideration of the order is
          filed in the trial court or other government unit within the
          time prescribed by law.” Pa.R.A.P. 1701(b)(3)(i).
       c. “A party aggrieved by the decision of the court may file a
          motion for reconsideration in accordance with Pa.R.A.P.
          1701(b)(3). If the court does not grant the motion for
          reconsideration within the time permitted, the time for filing a
          notice of appeal will run as if the motion for reconsideration
          had never been presented to the court.” Pa.R.C.P. 1930.2.
       d. These Rules seem to clearly empower this [c]ourt to decide
          the Administratrix’s Motion for Reconsideration despite the
          filing of a Notice of Appeal.
       e. However, it appears to the [c]ourt that any further action on
          confirming the First and Intermediate Accounting filed by the
          Administratrix would be a violation of Pa.R.A.P. 1701(a).

            Therefore, IT IS HEREBY ORDERED that the confirmation
          of the First and Intermediate Account filed by the

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        Administratrix on June 5, 2017 is hereby STAYED until further
        Notice.

           IT IS FURTHER ORDERED that this [c]ourt will decide
        [Ms. Dunklebarger’s] Motion for Reconsideration within thirty
        (30) days of the date of this order.

Id. (footnote omitted; emphasis in original).

     We note that Ms. Dunklebarger filed a timely appeal on June 2, 2017,

from the May 4, 2017 order, but that the trial court’s June 20, 2017 order

that appears to grant reconsideration was not timely. We explain the effect

of these circumstances by quoting PNC Bank, N.A. v. Unknown Heirs, 929

A.2d 219 (Pa. Super. 2007), which states:

     [I]t is well settled that “a court upon notice to the parties may
     modify or rescind any order within 30 days after its entry … if no
     appeal from such an order has been taken or allowed.” 42
     Pa.C.S.A. § 5505. “Under section 5505, the trial court has broad
     discretion to modify or rescind an order, and this power may be
     exercised sua sponte or invoked pursuant to a party’s motion for
     reconsideration.” Haines v. Jones, 830 A.2d 579, 584 (Pa.
     Super. 2003).      “The trial court may consider a motion for
     reconsideration only if the motion for reconsideration is filed
     within thirty days of the entry of the disputed order.” Id. “The
     mere filing of a motion for reconsideration, however, is
     insufficient to toll the appeal period.” Valley Forge Center
     Associates [v. RIB-It/K.P., Inc.], 693 A.2d [242,] 245 [Pa.
     Super. 1997)]. “If the trial court fails to grant reconsideration
     expressly within the prescribed 30 days, it loses the power to act
     upon both the [motion] and the original order.” Id.

Id. at 226.

     Additionally, we recognize that

     Rule 1701(b)(3) indicates that when the trial court expressly
     grants reconsideration of an order that is the subject of an
     appeal, such grant of reconsideration renders the previously filed
     notice of appeal inoperative. Thereafter, the time for filing an
     appeal begins to run anew from the point the trial court enters a

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       decision on reconsideration, whether or not such decision
       constitutes a reaffirmation of the prior, original[] order.

Haines, 830 A.2d 583 (emphasis in original).

       Thus, based upon the facts as set forth above, we conclude that the

trial court’s grant of reconsideration is of no moment because of its

untimeliness,3 but that Ms. Dunklebarger’s protective appeal remains in

effect.    Therefore, we have jurisdiction to consider Ms. Dunklebarger’s

appeal from the court’s order entered on May 4, 2017.        We do, however,

refrain from considering anything in the record related to the court’s decision

upon reconsideration.

       In her brief to this Court, Ms. Dunklebarger states her issues as

follows:

    1. Whether the lower court, in holding that the decedent’s will
       unambiguously manifested an intention that the burden of
       inheritance tax on non-probate property be borne by his estate
       rather than the transferee of the non-probate assets, failed to
       consider the latent ambiguity in the decedent’s will arising from
       the fact that at the time the decedent’s will was written, the
       beneficiary of the non-probate property and of his estate was the
       same person[?]



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3 However, we recognize that on June 30, 2017, the trial court issued an
opinion containing its review of the three issues that Ms. Dunklebarger
raised in her motion for reconsideration. The three issues concern: (1) an
“erroneous factual statement as to [Ms.] Sturgeon’s parentage[,]” (2) a
“factual statement as to when [Ms.] Sturgeon was appointed beneficiary of
the two policies[,]” and (3) the “conclusion of law that [Ms.] Sturgeon is a
beneficiary and has standing to petition for an accounting[.]” See TCO #2,
at 2, 6.



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   2. Whether the lower court erred in holding that the language of
      the will unambiguously manifests an intention that the estate
      pay inheritance tax obligations on non-probate assets out of
      estate funds[?]

Ms. Dunklebarger’s brief at 4.

      The trial court’s May 4, 2017 opinion addresses these issues, stating:

      [T]he plain language of Mr. Hixon's Will is clear. The Executor of
      the Estate is directed to pay inheritance taxes assessed against
      monies payable upon Mr. Hixon’s death (i.e. life insurance)
      regardless of whether those monies have passed under the Will.
      Moreover, the inheritance tax is to be paid from the Estate as an
      administrative expense.      Ms. Sturgeon is the beneficiary of
      policies which have become payable upon Mr. Hixon’s death as
      life insurance or certificates of annuities, and any resulting
      inheritances taxes should therefore be paid “as if such taxes
      were administration expenses.”         Contrary to the Estate’s
      allegations, Mr. Hixon’s intent was clear tha[t] any inheritance
      taxes resulting from a policy payable upon his death should be
      paid by the [E]state, even [though] that policy was not conveyed
      within the Will itself. Moreover[,] the source of the funds to pay
      the inheritance tax is clearly the Estate as inheritance taxes are
      meant to be treated as an administration expense.

            The Estate counters this plain language, arguing that
      because Ms. Sturgeon was not a contemplated beneficiary of the
      tax clause when the Will was executed, she cannot benefit from
      that provision. However, the Estate improperly characterizes
      Corso’s Estate in support of this argument. In Corso’s Estate,
      the decedent’s will named only the decedent’s first wife as the
      beneficiary of the pay-tax provision. 431 A.2d 253, 273 (Pa.
      1981). The Court held that the decedent’s second wife could not
      benefit from this provision since the decedent clearly had not
      intended or planned to get divorced and remarried and have that
      same pay-tax provision apply to his second wife. The case at
      bar is readily distinguishable. The tax clause in Mr. Hixon’s Will
      is a general provision accounting for the payment of not only
      inheritance[] taxes, but also estate, succession and other death
      transfer taxes[,] which are made payable by Mr. Hixon’s passing.
      Mr. Hixon did not limit this tax clause provision to an individual
      person as was the case in Corso’s Estate. Rather, this extremely
      general tax clause sought to cover taxes owed by any

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      beneficiary and recipient of his life insurance or certificates of
      annuities policies. The [c]ourt also notes that the Will was
      executed in 2004, while the record is silent as to when Ms.
      Sturgeon was named a beneficiary to the two policies. As such,
      this [c]ourt cannot draw the conclusion that Ms. Sturgeon’s
      existence was not contemplated at the time the Will was
      executed.

            Since Ms. Sturgeon is in fact a beneficiary and has a
      corresponding valid claim against the Estate for monies owed to
      her to pay the inheritance taxes on the two policies from which
      she benefits, she has standing to petition this [c]ourt to compel
      an accounting.

TCO #1, at 3-4 (citations to the record and a footnote omitted).

      In addressing the issues Ms. Dunklebarger raises, we are guided by

the following:

            The effect of a tax clause contained in a will involves a
      question of law. In re Estate of Allen, 960 A.2d 470 (Pa.
      Super. 2008). This Court's scope of review is plenary and our
      standard of review is de novo. In re Fridenberg, 613 A.2d
      281, 33 A.3d 581, 584 (Pa. 2010).

            In interpreting a will, this Court has stated:

            The testator’s intent is the polestar in the
            construction of every will and that intent, if it is not
            unlawful, must prevail. 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, only if the testator’s intent
            remains uncertain may a court then resort to the
            general rules of construction. The words of a will are
            not to be viewed in a vacuum but rather as part of an
            overall testamentary plan.

            When interpreting a will, we must give effect to word
            and clause where reasonably possible so as not to
            render any provision nugatory or mere surplusage.
            Further, technical words must ordinarily be given


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             their common legal effect as it is presumed these
             words were intentionally and intelligently employed,
             especially where they are used by someone learned in
             probate law.

             Courts are not permitted to determine what they
             think the testator might or would have desired under
             the existing circumstances, or even what they think
             the testator meant to say. Rather, the court must
             focus on the meaning of the testator's words within
             the four corners of the will. Finally, a court may not
             rewrite an unambiguous will.

      In re Estate of Schultheis, 747 A.2d 918, 922-23 (Pa. Super.
      2000) (quoting In re Estate of Rider, 711 A.2d 1018, 1021
      (Pa. Super. 1998)).

In re Estate of Davis, 128 A.3d 819, 821 (Pa. Super. 2015).

      We agree with the trial court’s determination. The language of the will

and, in particular, the tax clause is clear and unambiguous. Specifically, the

tax clause directs that all taxes are to be paid by the Estate, even if the

funds from the policies are not conveyed by the will, and that the payment

of the taxes should be treated as administration expenses. The fact that Ms.

Sturgeon was not the intended beneficiary at the time the will was initially

signed by the decedent in 2004 does not convert a clear intent to a latent

ambiguity.   “Great deference is given to the meaning of the words in the

four corners of the will, and a court cannot determine what the testator

might have desired by considering extrinsic evidence.”        Hennessey v.

Hennessey, 883 A.2d 649, 652 (Pa. Super. 2005). Moreover,

      [a] latent ambiguity exists when extrinsic evidence renders the
      majority of a written document uncertain, even though the plain
      meaning of the document seemed clear. However, the extrinsic
      evidence must only serve to clarify ambiguous terms within the

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      will. It “cannot be received as evidence of testator’s intention
      independent of the written words employed.”

Id. at 652-53 (citations omitted).

      Based upon the facts as ascertained by the trial court and the law set

forth above, we cannot rewrite Mr. Hixon’s will to comport with what Ms.

Dunklebarger asserts was his intent. Rather, we conclude that the trial court

correctly determined that there is no ambiguity in the will and that the tax

clause covered taxes owed by any beneficiary including the recipient of the

Allianz and Modern Woodsman policies.         Accordingly, we affirm the trial

court’s order from which Ms. Dunklebarger appealed.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/12/2018




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