J-A32018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF WILLIAM B. HUTCHENS,                   IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA




APPEAL OF: SCOTT A. HUTCHENS

                                                     No. 1669 EDA 2016


                     Appeal from the Order April 11, 2016
             In the Court of Common Pleas of Northampton County
                      Orphans' Court at No(s): 2013-0516


ESTATE OF WILLIAM B. HUTCHENS,                   IN THE SUPERIOR COURT OF
DECEASED                                               PENNSYLVANIA




APPEAL OF: JOY SCHREFFLER

                                                     No. 1706 EDA 2016


                     Appeal from the Order April 11, 2016
             In the Court of Common Pleas of Northampton County
                      Orphans' Court at No(s): 2013-0516


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED MARCH 08, 2017




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*
    Retired Senior Judge assigned to the Superior Court.
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        Scott A. Hutchens (“Appellant”) appeals from the Order entered in the

Court of Common Pleas of Northampton County Orphans’ Court on April 11,

2016, finding that two antique cars constituted inter vivos gifts, and denying

his request for attorney’s fees. We affirm.

        Joy Schreffler (“Appellee/Cross-Appellant”) separately appeals from

the Order entered in the Court of Common Pleas of Northampton County

Orphans’ Court on April 11, 2016, finding that a collection of coins did not

constitute inter vivos gifts. We affirm.1

        We derive the following statement of facts from the trial court’s

opinions entered on April 11, 2016, and July 13, 2016.           See Trial Court

Opinion (TCO), 4/11/16, at 1-4; TCO, 7/13/16, at 1-2.

        Appellant and Appellee are the children of William B. Hutchens

(“Decedent”). On April 15, 2003, Decedent executed a will providing that if

his wife predeceased him, the estate was to be divided into two equal shares

for the benefit of his children.        Decedent’s wife passed in 2008.   In April

2009, Appellee was appointed Decedent’s durable power of attorney,

allowing her full power of substitution to take any action on his behalf.

Decedent was diagnosed with dementia in May 2011. Decedent died testate

on April 6, 2013, and his will was admitted to probate.        Decedent’s Estate

filed a first and final account and issued a schedule of distribution.       Both


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1
    Both appeals were consolidated by this Court.



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parties filed objections, disputing the ownership of two antique cars and a

coin collection.

      The parties appeared before the court on December 16, 2015, for a

non-jury trial to determine the distribution of the antique cars and coin

collection. The court made findings of fact as to each:

      In 2007, Decedent delivered two antique cars from storage to

Appellee’s home. On January 31, 2008, Decedent gave Appellee the titles to

the cars and powers of attorney, authorizing her to act on his behalf with

regard to the cars. Appellee maintained possession of the vehicles from that

date until the present, briefly returning them to storage during her divorce.

Appellee transferred the titles into her name on September 19, 2012.

      In June 2011, Decedent established a trust account, a living trust

agreement, and signed a letter stating he was giving Appellee his coin

collection because he no longer wished to maintain them in his home.      In

March 2012, Appellee and her husband went to Decedent’s home to remove

the coin collection. Decedent was visibly upset and asked Appellee to open

the safes holding the coins.   When Decedent’s caretaker arrived later that

day, Decedent was still upset, repeating, “They’re gone.”

      Following trial, the court issued an order holding that 1) the coin

collection was the property of the Estate; 2) the antique cars were the

property of Appellee; and 3) that no attorneys’ fees would be awarded to

either party.




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      Both Appellant and Appellee timely appealed and filed Pa.R.A.P.

1925(b) statements of errors complained of on appeal.         The trial court

issued a responsive opinion.

      On appeal, Appellant presents the following issues for our review:

      I. Whether the lower court committed error of law and/or abused
      its discretion in finding that [Appellee] proved by clear and
      convincing evidence that [Decedent] made an inter vivos gift of
      his antique cars to her.

      II. Whether it was error for the lower court to deny a request for
      attorney’s fees despite the substantial benefit that was provided
      to the Estate by counsel for [Appellant]?

Appellant’s Brief at 4.

      Appellee raises the following issue for our review:

      Did [Appellee] prove by clear and convincing evidence that the
      Decedent made an inter vivos gift of the coins to her?

Appellee/Cross-Appellant’s Brief at 1.

      For ease of disposition, we will address Appellant’s first issue,

Appellee’s issue, and finally Appellant’s second issue.     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
      the 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 inapplicable, we will reverse the court’s decree.




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In re Estate of Rosser, 821 A.2d 615, 618 (Pa. Super. 2003) (internal

quotation marks and citations omitted).

      First, Appellant claims that the court erred in concluding that the cars

constituted an inter vivos gift.   See Appellant’s Brief at 16.   A valid inter

vivos gift

      requires donative intent, delivery, and acceptance. There must
      be evidence of an intention to make a gift accompanied by
      delivery, actual or constructive, of a nature sufficient not only to
      divest the donor of all dominion over the property, but to invest
      the donee with complete control. All of the circumstances must
      be considered in determining whether a gift was made.
      Donative intent can be inferred from the relationship between
      the donor and donee.

In re Estate of Moskowitz, 115 A.3d 372, 386 (Pa. Super. 2015),

reargument denied (June 30, 2015), appeal denied, 130 A.3d 1291 (Pa.

2015), reconsideration denied (Jan. 29, 2016) (internal citations and

quotation omitted).

      Appellant contends that Appellee failed to establish by clear and

convincing evidence that Decedent had possessed the donative intent to

make a gift, as the execution of powers of attorney were inconsistent with

such an intent.   See Appellant’s Brief at 16.     Appellant also asserts that

there was no valid delivery of the cars. Id. Finally, Appellant argues that

even if donative intent had existed, it was revoked, as Decedent’s execution

of the durable power of attorney revoked all previous powers of attorney.

Id. at 16-17.




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      The burden of proving an inter vivos gift is placed initially on the

putative donee, who must first show a prima facie case through clear, direct,

and convincing evidence. Lanning v. West, 803 A.2d 753, 761 (Pa. Super.

2002). Once a prima facie case is established, a presumption of the validity

of the gift arises and the burden shifts to the contestant to show by clear

and convincing evidence that the property was not given as an inter vivos

gift. Id.

      Here, the court found prima facie evidence of donative intent.

Specifically, the court determined: 1) Decedent had given Appellee the titles

to the cars and the legal authority to transfer the titles into her name; and

2) persuasive testimony by Appellee that the cars were intended as gifts.

See TCO, 7/13/16, at 3-4; TCO, 4/11/16, at 6-7.         In response to this

evidence, Appellant argues that 1) Decedent had no present intent to gift

the cars, or he would have executed the titles on the same day they were

delivered, and 2) the testimony of Appellee’s ex-husband suggested that the

cars were left solely for safe keeping. However, the trial court considered

these arguments and rejected them, finding Appellee’s testimony credible

and noting that Appellee’s ex-husband was not credible, due to contentious

divorce proceedings. We will not disturb these findings. Rosser, 821 A.2d

at 618.

      Further, the court found evidence of valid delivery of the cars.   The

test of delivery is the change of property, the immediate right to the entire

dominion over the subject gift, and proof the donor intended to divest

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himself of the property. See In re Brown’s Estate, 22 A.2d 821, 826 (Pa.

1941).   Specifically, the court concluded that the cars were brought to

Appellee’s residence in 2007, and that the titles to the cars and powers of

attorney were given to her at that time.    See TCO, 7/13/16, at 4-5. The

powers of attorney allowed her to transfer the titles into her own name when

convenient, and there was no evidence introduced to show that Decedent

intended anything other than that Appellee would transfer the titles to her

name. Id. Appellee accepted the cars by storing them on her property and

later transferring title to her name. Id.

      Appellant’s suggestion that decedent revoked any prior donative intent

is not persuasive. According to Appellant, the donative intent was revoked

when the previous powers of attorney, which were only related to the cars,

were subsumed by the durable power of attorney, allowing Appellee to

transact business and take any action on Decedent’s behalf. This argument

is unconvincing, as Pennsylvania courts have previously held that once an

inter vivos gift is made and completed, even the revocable character of a

power of attorney may not revoke that gift without the donee’s consent.

See, e.g., Cost v. Calestri, 394 A.2d 513, 518 (Pa. 1978).

      Thus, Appellee established a prima facie presumption of a valid gift,

and the trial court did not find Appellant had presented evidence sufficient to

rebut that presumption.    Appellant is entitled to no relief.   See Lanning,

803 A.2d at 761.




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       Next, Appellee claims that the court erred in finding that she had failed

to prove by clear and convincing evidence that Decedent made an inter vivos

gift of coins to her. See Appellee’s Brief at 7. According to Appellee, that

letter signed by Decedent is a clear and convincing expression of donative

intent, and, although delivery of the coins did not occur for several months

after the expression, there was no evidence in the record suggesting that

Decedent had revoked his intent prior to delivery. Id.

       As discussed, supra, the establishment of a valid inter vivos gift

requires donative intent, delivery, and acceptance. Moskowitz, 115 A.3d at

386.   The trial court concluded that: 1) evidence from multiple witnesses

established that Decedent was primarily concerned about the safety of the

coins; 2) the letter relied upon by Appellee to establish donative intent was

ambiguous; and 3) Decedent’s behavior at delivery was evidence of

revocation. See TCO, 4/11/16, at 5-6 (citing in support Decedent’s distress

on the day of delivery and Decedent’s statement to caretaker that “they’re

gone.”).

       In finding the language of the letter ambiguous, the trial court relied

upon Estate of Greenberg, which held that a decedent’s statement that

she was giving rings to her sister to keep was ambiguous and equivocal, and

that the word “give” was as consistent with a bailment as it was with a gift.

See Estate of Greenberg,        444 A.2d 1224, 1227-28 (Pa. Super. 1982).

Based on the precedent, the trial court concluded that the word “give” was




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ambiguous and without more, Appellee could not meet her burden of clear

and convincing evidence.

      The   record    supports   this   conclusion   regarding   donative   intent.

Appellee contends that the testimony of Barbara Seifert-Sigmon, the trust

officer who drafted the letter, established Decedent’s intent. However, Ms.

Seifert-Sigmon also acknowledged that Decedent had not used the word

“gift” in their conversation and that he was concerned with the security of

the coins, given the number of caretakers coming in and out of his home.

This concern is consistent with a bailment rather than a gift. Greenberg,

444 A.2d at 1228. Decedent’s granddaughter and his caretaker also testified

regarding his concerns for the safety of the coins. Testimony regarding the

Decedent’s distress while Appellee took the coins is essentially moot, as

Appellee failed to show donative intent prior to delivery.

      Accordingly, we find no abuse of discretion in the trial court’s

conclusion that Appellee did not prove by clear and convincing evidence that

the coins constituted an inter vivos gift.     See Rosser, 821 A.2d at 618;

Moskowitz, 115 A.3d at 386.

      Finally, Appellant claims that the court erred by denying an award of

attorney’s fees.     See Appellant’s Brief at 29.     He argues that the Estate




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substantially benefitted from the efforts of his counsel, namely, the inclusion

of the coin collection valued at $54,879.00. Id. at 29-30.2

       In reviewing a trial court’s award of attorney’s fees, our standard is an

abuse of discretion.       In re Padezanin, 937 A.2d 475, 484 (Pa. Super.

2007). Generally, the attorney’s fees for a party who files exceptions to an

account are not paid from the estate. See In re Estate of Vaughn, 461

A.2d 1318, 1320 (Pa. Super. 1983).                 However, there is an exception

“[w]here the estate is substantially benefitted by the efforts of an

exceptant’s counsel, which have resulted in an administrator being required

to include in his inventory of the estate valuable assets previously not

included.” Vaughn, 461 A.2d at 1320. In such a situation, it is within the

court’s discretion to compensate the exceptant’s counsel fees out of estate

funds. Id.

       Here, Appellant relies on Vaughn and Padezanin to support his

contention that he has added substantial value to the estate.          See, e.g.,

Vaughn, 461 A.2d at 1320 (finding that attorney’s efforts constituted a

substantial benefit where he ensured the inclusion of previously omitted
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2
  Before the trial court, Appellant argued that Appellee’s bad faith entitled
him to attorney’s fees. Appellant still avers that Appellee acted in bad faith,
but has not developed this argument on appeal with citations to the record
or controlling authority; accordingly, we find waiver. See Appellant’s Brief
at 31; see also Pa.R.A.P. 2119(a)-(c); Commonwealth v. Knox, 50 A.3d
732, 748 (Pa. Super. 2012) (“[T]he argument portion of an appellate brief
must be developed with a pertinent discussion of the point which includes
citations to the relevant authority.”)



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assets in the inventory of the estate); Padezanin, 937 A.2d at 484 (noting

attorney’s efforts constituted a substantial benefit where he ensured

inclusion of previously omitted real estate in the inventory of the estate).

However, those cases are not analogous to the instant situation, as the coins

and cars were included in the account and schedule of distribution: Appellant

merely disputed their disposition. Appellant did not add value to the estate

where the disposition of the property was part of the resolution of the case

itself.    Accordingly, there was no abuse of discretion in the trial court’s

decision to deny attorney’s fees. Vaughn, 461 A.2d at 1320.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2017




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