J-A15030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF RANDI RATUSHNY                       IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

APPEAL OF: ROBIN K. THOMAS
                                                   No. 3358 EDA 2013


               Appeal from the Order Entered November 8, 2013
             In the Court of Common Pleas of Northampton County
                      Orphans' Court at No(s): 2012-1527


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 08, 2014



Division of the Court of Common Pleas of Northampton County, denying her



we affirm.



will dated January 9, 2003. After directing the payment of debts and funeral

expenses, Decedent gave her entire estate to her brother, James G. Emlen,

and appointed him as executor. Of particular relevance to the instant appeal

is Item SECOND of the will, which provides as follows:

     SECOND: Specific Devise: I devise to JAMES G. EMLEN, of
     Delray Beach, Florida, if he survives me, the parcel of real
     property known as 4000 Sherry Hill Road, Lower Saucon
     Township, Northampton County, Pennsylvania along with all
     appurtenances and improvements used in connection therewith,
     including all furniture therein, if owned by me at the time of my
     death. If my mother predeceases me, then I devise said real
     estate to my sister, ROBIN THOMAS, if she survives me.
J-A15030-14


Last Will of Randi Ratushny, 1/9/03, at Item SECOND.

      On February 6, 2013, Thomas filed a petition to appoint and disqualify



named executor, Emlen, was not qualified to serve in that capacity due to,

inter alia

residence and insurance thereon, and waste and mismanagement of the

estate.      Thomas further alleged that the substitute executors named in




her own appointment as Administratrix CTA.

      Emlen filed an answer, new matter and counterclaim, in which he

asserted that Thomas lacked standing to file her petition. He also claimed

that he had been sworn in as executor but unable to finalize his appointment

because Thomas would not provide him with a death certificate for

Decedent; as such, he



obdurate and vexatious conduct.

      On April 24, 2013, Emlen filed a petition for declaratory judgment,

seeking an interpretatio

Emlen claimed that the provision contained an ambiguity because the words




                                     -2-
J-A15030-14


                                                                 , Michael F.

Corriere, Esquire.




Ite



mother had predeceased her. Accordingly, the court properly considered the

testimony of Attorney Corriere to determ

the disposition of her real property.       Attorney Corriere testified that

Decedent had intended to devise the real property to Emlen and, if Emlen

predeceased her, to Thomas. He testified that, in revising a prior will he had




November 8, 2013. This timely appeal follows, in which Thomas raises the

following issues for our review:

      1.
            its discretion by denying the exceptions filed by Robin K.
            Thomas to the order of court dated October 25, 2013, in
            that parag
            unambiguous?

      2.
            its discretion by denying the exceptions filed by Robin K.
            Thomas to the order of court dated October 25, 2013, in
            that [Emlen] should have been removed and/or

                                    -3-
J-A15030-14



            [Thomas] should have been appointed Administratrix
            C.T.A. thereof?

Brief of Appellant, at 4.

      We begin by noting:

                                                                   ision is

      Court, this Court must determine whether the record is free from

                                                               -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 inapplicable, we


In re Estate of Strahsmeier, 54 A.3d 359, 362-63 (Pa. Super. 2012). An

abuse of discretion is not merely an error of judgment. Id. at 363. Rather,

discretion is abused if, in reaching a conclusion, the court overrides or

misapplies the law, or the judgment exercised is shown by the record to be

manifestly unreasonable or the product of partiality, prejudice, bias or ill will.

Id.




mother, Thomas argues that the second sentence of Item SECOND becomes

operative, and she is the rightful devisee of the real property.         For the

following reasons, this claim is without merit.


                                      -4-
J-A15030-14


      It is well established that


      every will and that intention must be ascertained from the
      language and scheme of his entire will together with the
      surrounding facts and circumstances; it is not what the Court
      thinks he might or would or should have said in the existing
      circumstances, or even what the Court thinks he meant to say,
      but what is the meaning of his words.

Estate of Zucker, 761 A.2d 148, 150-51 (Pa. Super. 2000), quoting

Houston Estate, 201 A.2d 592, 595 (Pa. 1964) (citation and brackets

omitted).   Only when the language of a will is ambiguous do we resort to

canons of construction. Id. at 151. Our Supreme Court has repeatedly held



explain or clarify the ambiguity, irrespective of whether the latent ambiguity

is created by the language of the Will or by extrinsic or collateral

                   In re Wachstetter Will, 216 A.2d 66, 70 (Pa. 1966).

      Here, Decedent began Item SECOND by devising her real property to

Emlen. That outright devise is followed by a contingent devise to Thomas, in



did, in fact, predecease her. As such, the will is ambiguous in that it may be

read to devise the same parcel of real property to both Emlen and Thomas

simultaneously.    Given this ambiguity, the court properly admitted the

                                                                See id.



disqualify or remove Emlen from serving as executor. However, because we


                                    -5-
J-A15030-14




Attorney Corriere to show that Decedent intended to devise her real property

to Emlen, Thomas is not a party in interest under the will and, as such, lacks

                                    See

its own motion may, and on the petition of any party in interest alleging

adequate grounds for removal shall, order the personal representative to

appear and show cause why he should not be removed, or, when necessary

to protect the rights of creditors or parties in interest, may summarily



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




                                    -6-
