J-A14009-18

                              2018 PA Super 225

 IN RE: ESTATE OF ISABEL                   :   IN THE SUPERIOR COURT OF
 CARRASQUILLO RIVERA                       :         PENNSYLVANIA
                                           :
                                           :
                                           :
 APPEAL OF: WILFREDO RIVERA                :        No. 3697 EDA 2017

              Appeal from the Decree Entered October 23, 2017
             In the Court of Common Pleas of Philadelphia County
                  Orphans’ Court at No(s): 1817 DE of 2014


BEFORE:     GANTMAN, P.J., SHOGAN, J., and PLATT*, J.

OPINION BY GANTMAN, P.J.:                           FILED AUGUST 08, 2018

      Appellant, Wilfredo Rivera, appeals from the decree and adjudication,

entered in the Philadelphia County Court of Common Pleas Orphans’ court,

which denied Appellant’s objections to the first and final account of Appellee,

Idaly Irizarry-Zayas, Administratrix for the Estate of Isabel Carrasquillo

Rivera, deceased. We affirm.

      The Orphans’ court opinion fully and correctly set forth the relevant facts

and procedural history of this case as follows:

          Isabel Carrasquillo Rivera (“Decedent”) died intestate on
          May 7, 2014, survived by her husband Wilfredo Rivera and
          her daughters Idaly Irizarry-Zayas (“Appellee”) and Isolina
          Rivera Vargas. Appellee was appointed as Administratrix of
          the Estate of Isabel Carrasquillo Rivera by the Register of
          Wills on June 12, 2014. On November 28, 2016, Appellee
          filed a first and final account. On January 23, 2017,
          Appellant filed objections to said account, including but not
          limited to the transfer of twenty-four properties from
          Decedent to Appellee.

          The [c]ourt held a hearing and received testimony on
          October 10, 2017 and October 11, 2017.


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* Retired Senior Judge assigned to the Superior Court.
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       At the hearing, Appellant presented two witnesses.
       Appellant testified on his own behalf. Appellant testified
       that most of the twenty-four properties in question were
       acquired after he married Decedent in 1980 but there was
       no testimony as to how the properties were acquired.
       Appellant testified that Decedent ran the business aspect of
       the properties but that he performed manual labor at the
       properties.    On cross-examination, Appellee presented
       Appellant with twenty-three deeds that transferred
       properties from Decedent to Appellee in April 2014.
       Appellant’s name is not on the twenty-three deeds. Only
       Decedent’s name was on said deeds. 3946 Horrocks Street
       was the only deed in both Decedent and Appellant’s name.
       The twenty-fifth property on Orkney Street is still titled in
       Appellant’s name. Appellant testified that he was present
       when all of the deeds were executed. Appellant testified
       that he did not ask the lawyer, Decedent, Appellee or Isolina
       Rivera [Vargas] any questions at the time of the execution.
       He had no objection at the time of execution. On re-direct,
       Appellant stated that Decedent signed all the deeds in his
       presence. Appellant testified that he currently lives in an
       apartment owned by Appellee rent free and receives $1,000
       a month from her. Wilfredo Rivera, Jr. also testified on
       direct.

       Appellant submitted the following into evidence: marriage
       license; receipts; bank statements; tax return; photos;
       death certificate; obituary; petition for grant of letters and
       notice of inheritance tax. After Appellant rested his case,
       this [c]ourt granted Appellee’s [m]otion for nonsuit on
       objections related to the transfer of real estate property.
       Based on evidence presented at the hearing, this [c]ourt
       found that the original deeds were in Decedent’s name only
       and she executed all transfers in the presence of Appellant.
       Moreover, Appellant presented no evidence, medical or
       otherwise, that showed Decedent was either incapacitated
       or in any way incapable of executing said deeds.

       Appellee then testified in her case-in-chief.       Appellee
       testified as to the accounting and her administration of the
       estate.     She testified that there was $84,936.75 in
       administration expenses which included funeral expenses,
       inheritance tax, debts of decedent and attorney’s fees. She
       testified that since the estate was insolvent she paid the

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          excess expenses out of her business account. The real
          estate business is in her name. She further stated that none
          of the estate’s funds were used to pay the attorney firms.
          Appellee submitted the following into evidence: twenty-four
          deeds; State Farm Document; Account and attorney’s fees.

          This [c]ourt denied Appellant’s remaining objections in a
          Decree and Adjudication dated October 20, 2017.[1]

          On November 16, 2017, Appellant filed a Notice of Appeal.
          Statements of [Errors] Complained of on Appeal were
          requested and properly tendered on December 8, 2017.

(Orphans’ Court Opinion, filed February 6, 2018, at 1-3) (internal citations to

record omitted).

       Appellant raises the following issues for our review:

          WHETHER THE ORPHANS’ COURT COMMITTED AN ERROR
          OF LAW, AND THEREFORE ABUSED ITS DISCRETION, WHEN
          IT EXCLUDED FROM THE ELECTIVE ESTATE PROPERTIES
          AND/OR THEIR VALUES THAT SHOULD HAVE BEEN
          INCLUDED THEREIN WHERE SAID PROPERTIES AND/OR
          THEIR VALUES WERE CONVEYED BY DECEDENT WITHIN A
          YEAR OF HER DEATH WITHOUT APPELLANT SPOUSE’S
          EXPRESS CONSENT.

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
          NOT EXERCISING, SUA SPONTE, THE COURT’S EQUITY
          JURISDICTION TO RETURN TO APPELLANT THE VALUE OF
          WHAT HE HAD LOST AS A RESULT OF HIS WIFE’S
          DEPLETION OF ASSETS THEY BOTH WORKED TO AMASS
          WHERE THE LAW COULD NOT AFFORD APPELLANT FULL,
          PERFECT AND COMPLETE RELIEF AS A LEGAL REMEDY.

(Appellant’s Brief at 6).

       In his issues combined, Appellant first argues he is entitled to what he


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1The court’s decree and adjudication was dated October 20, 2017, and filed
with notice sent to the appropriate parties on October 23, 2017.

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calls an “elective share,” under 20 Pa.C.S.A. § 2203(a)(6), of one-third of the

property conveyed by Decedent during the marriage and within one year of

her death, to the extent that the aggregate amount conveyed to each donee

exceeded $3,000.00, as valued at the time of conveyance, because he did not

expressly consent to any of the conveyances, as required by 20 Pa.C.S.A. §

2203(b)(1).   Appellant contends his failure to object at the time of the

transfers was mere acquiescence on his part.        In other words, Appellant

submits the transfer of the deeds, in his presence, and his failure to ask

questions or object, is not indicative of his express consent for purposes of

Section 2203(b)(1).

      Alternatively, Appellant complains the court should have exercised its

equitable powers to ensure he received the value of what he lost in the estate

due to the realty transfers to Appellee.    Appellant states he spent almost

thirty-five years of his life working with Decedent to build up and maintain a

real estate business of considerable value. Appellant contends equity should

have stepped in to promote justice and include the value of the transferred

properties in Decedent’s estate so Appellant could claim his “spousal share”

of an undiminished estate.     Appellant concedes that twenty-three of the

properties were not de jure tenancies by the entireties, but he states he “co-

owned” those properties nonetheless because they were subject to a de facto

tenancy by the entireties. Appellant highlights his tireless work in maintaining

the properties and devotion to Decedent as confirmation that all of the


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properties conveyed were subject to a de facto tenancy by the entireties,

despite the transfers. Appellant understands the court might not have been

able to order the properties retroactively re-titled, but it could have allowed

Appellant to claim against the value of the properties, given his “joint interest”

in the properties. Appellant also notes that while Appellee allows him to live

rent-free in one of the properties and provides monthly financial support to

him, this agreement is subject to termination at will of Appellee. Appellant

concludes the court erred and abused its discretion when it excluded from

Decedent’s intestate estate those properties transferred approximately one

month before Decedent’s death and when it failed to exercise its equitable

powers to afford him his full statutory remedy. For the reasons that follow,

we cannot agree with Appellant.

      Initially, we observe:

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

            When reviewing a decree entered by the Orphans’
            [c]ourt, 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’
            [c]ourt 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.

            However, we are not constrained to give the same
            deference to any resulting legal conclusions.

         [T]he Orphans’ court decision will not be reversed unless
         there has been an abuse of discretion or a fundamental error
         in applying the correct principles of law.

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In re Estate of Whitley, 50 A.3d 203, 206-07 (Pa.Super. 2012), appeal

denied, 620 Pa. 724, 69 A.3d 603 (2013) (internal citations and quotation

marks omitted).    See also In re Estate of Luongo, 823 A.2d 942, 951

(Pa.Super. 2003) (stating same). “An abuse of discretion is not merely an

error of judgment; if, in reaching a conclusion, the court overrides or

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

either manifestly unreasonable or the product of partiality, prejudice, bias or

ill will, discretion has been abused.” Silver v. Pinskey, 981 A.2d 284, 291

(Pa.Super. 2009) (en banc) (quoting Mencer v. Ruch, 928 A.2d 294, 297

(Pa.Super. 2007)). “Our scope of review is also limited: we determine only

whether the court’s findings are based on competent and credible evidence of

record.” In re Estate of Karschner, 919 A.2d 252, 255-56 (Pa.Super. 2007)

(quoting In re Estate of Westin, 874 A.2d 139, 142 (Pa.Super. 2005)).

      Appellant’s argument implicates the following statutes, which provide in

relevant part, as follows:

         § 2102. Share of surviving spouse

         The intestate share of a decedent’s surviving spouse is:

           (1) If there is no surviving issue or parent of the
           decedent, the entire intestate estate.

           (2) If there is no surviving issue of the decedent but he
           is survived by a parent or parents, the first $30,000 plus
           one-half of the balance of the intestate estate. …

           (3) If there are surviving issue of the decedent all of
           whom are issue of the surviving spouse also, the first

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          $30,000 plus one-half of the balance of the intestate
          estate.

          (4) If there are surviving issue of the decedent one or
          more of whom are not issue of the surviving spouse, one-
          half of the intestate estate.

          (5) In case of partial intestacy any property received by
          the surviving spouse under the will shall satisfy pro tanto
          the $30,000 allowance under paragraphs (2) and (3).

20 Pa.C.S.A. § 2102 (emphasis added). Section 2102 applies to a surviving

spouse of a decedent who dies intestate.        Id.   A “spousal share” can be

forfeited, as provided in Section 2106, which governs forfeiture of a spouse’s

share under certain conditions. 20 Pa.C.S.A. § 2016(a).

      Under the “elective share” provisions in Section 2203, a surviving

spouse can assert elective rights as follows:

         § 2203. Right of election; resident decedent

         (a) Property subject to election.−Except as provided in
         subsection (c) [divorce], when a married person domiciled
         in this Commonwealth dies, his surviving spouse has a right
         to an elective share of one-third of the following property:

          (1) Property passing from the decedent by will or
          intestacy.

          (2) Income or use for the remaining life of the spouse of
          property conveyed by the decedent during the marriage
          to the extent that the decedent at the time of his death
          had the use of the property or an interest in or power to
          withdraw the income thereof.

          (3) Property conveyed by the decedent during his
          lifetime to the extent that the decedent at the time of his
          death had a power to revoke the conveyance or to
          consume, invade or dispose of the principal for his own
          benefit.

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          (4) Property conveyed by the decedent during the
          marriage to himself and another or others with right of
          survivorship to the extent of any interest in the property
          that the decedent had the power at the time of his death
          unilaterally to convey absolutely or in fee.

          (5) Survivorship rights conveyed to a beneficiary of an
          annuity contract to the extent it was purchased by the
          decedent during the marriage and the decedent was
          receiving annuity payments therefrom at the time of his
          death.

          (6) Property conveyed by the decedent during the
          marriage and within one year of his death to the extent
          that the aggregate amount so conveyed to each donee
          exceeds $3,000, valued at the time of conveyance.

        In construing this subsection, a power in the decedent to
        withdraw income or principal, or a power in any person
        whose interest is not adverse to the decedent to distribute
        to or use for the benefit of the decedent any income or
        principal, shall be deemed to be a power in the decedent to
        withdraw so much of the income or principal as is subject to
        such power, even though such income or principal may be
        distributed only for support or other particular purpose or
        only in limited periodic amounts.

        (b) Property not subject to election.−The provisions of
        subsection (a) shall not be construed to include any of the
        following except to the extent that they pass as part of the
        decedent’s estate to his personal representative, heirs,
        legatees or devisees:

          (1) Any conveyance made with the express consent or
          joinder of the surviving spouse.

                                 *    *    *

20 Pa.C.S.A. § 2203(a)-(b)(1). Section 2203(a)(1)-(6) codifies the property

subject to an elective share by a surviving spouse passing upon the death of

a decedent. 20 Pa.C.S.A. § 2203(a). Section 2203(b)(1) indicates one form

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of property not subject to an elective share. 20 Pa.C.S.A. § 2203(b)(1-4).

     As a general rule, the statutes governing a spousal share of a decedent’s

estate and an elective share of a decedent’s estate operate differently. In

Re: Estate of Scarpaci, 176 A.3d 885 (Pa.Super. 2017). The spousal share

provisions and the elective share provisions should not be conflated as to

terms, requirements, and consequences.       Id. at 889.   For example, the

spousal share under Section 2101 is not subject to the time limitations set

forth in 20 Pa.C.S.A. § 2210 for seeking an elective share under Section 2203.

Id. The procedural requirements codified in Section 2210 refer only to the

“surviving spouse of a decedent who dies testate.” Id.

     In the present case, the Orphans’ court reasoned as follows:

        F. This court took Appellant’s testimony              [into]
        account and weighed it appropriately.

        Appellant asserts that this court failed to take into
        consideration [Appellant’s] testimony and that English is not
        his first language. This claim is without merit.

        If the witness is not testifying as an expert, the witness
        testimony in the form of opinions or inferences is limited to
        those opinions or inferences which are rationally based on
        the perception of the witness, helpful to a clear
        understanding of the witness’ testimony or the
        determination of a fact in issue, and not based on scientific
        technical, or other specialized knowledge within the scope
        of Rule 702.

        There was no evidence presented as to what transpired
        during the inter vivos transfer other than who was present.
        Accordingly there is no evidence to consider. A language
        issue does not give [Appellant] any greater rights. Once a
        person enters into a written agreement, he builds around
        himself a stone wall, from which he cannot escape by merely

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       asserting he had not understood what he was signing. One
       who signs an instrument without reading it, or, if unable to
       read, without having it read to him, is guilty of negligence
       and has no remedy in equity or at law. Appellant’s reference
       to [his] signing a power of attorney is of no relevance here.
       Neither Decedent’s nor Appellant’s power-of-attorney are at
       issue here. Decedent signed the deeds herself as the sole
       owner. Appellant signed the only deed listed in his name
       and he authenticated said deed and signature at trial. He
       testified that he did not ask his daughters or the attorney
       any questions.      No objection was raised until after
       Decedent’s death. The other twenty-three deeds were not
       in Appellant’s name. Appellant had a Spanish interpreter at
       the hearing. No language issue was presented with respect
       to language being a factor at the hearing. Moreover, based
       on this court’s previous analysis, there was no undue
       influence or duress nor any evidence that language was a
       factor during the inter vivos real estate transfer. Therefore
       this claim is without merit.

       G. There was no evidence presented as to when and
       how the properties were acquired.

       Appellant asserts there was sufficient evidence to show that
       [he] acquired the properties with the deceased through the
       marriage. This claim is without merit.

       There was no evidence other than Appellant’s self-serving
       statement that the properties were acquired at some point
       during the marriage. No testimony was given regarding
       dates or even a time frame for acquisition of the referenced
       properties. No explanation was provided as to why the
       properties were only in [D]ecedent’s name if in fact they
       were acquired jointly. No agreements of sale or deeds of
       their acquisition were presented. In fact, the only evidence
       of the 2014 property transfers was presented by Appellee
       during the cross-examination of Appellant. There was no
       evidence submitted by either side as to how or when the
       properties were originally acquired. Therefore this claim is
       without merit.

                               *     *      *

                               Conclusion

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         Based on the record, this [c]ourt’s Decree…, [d]enying
         Appellant’s objections should be AFFIRMED.

(Orphans’ Court Opinion at 10-11) (internal citations and quotation marks

omitted). We agree.

      Here, Decedent died wholly intestate.       As the surviving spouse,

Appellant was theoretically entitled to a spousal share of Decedent’s estate.

See In Re: Estate of Scarpaci, supra. Section 2102(4) governs Appellant’s

statutory spousal share, which was not subject to the procedural requirements

of Section 2210. See id.

      Appellant appears to conflate the statutes governing spousal share and

elective share and his cross-references are confusing and misplaced. Because

Decedent died wholly intestate, the spousal share statute controls any claim

Appellant has to Decedent’s estate. See 20 Pa.C.S.A. §§ 2102 et seq. If

Appellant had been able to pursue an elective share against the estate, his

“lack of consent” argument could be a consideration under Section

2203(b)(1).   Nevertheless, properties were conveyed prior to Decedent’s

death and did not pass as part of her estate. See 20 Pa.C.S.A. § 2203(b)(1)

(excluding from property subject to election those conveyances made with

express consent or joinder of surviving spouse except to extent that they pass

as part of decedent’s estate to personal representative, heirs, legatees or

devisees).

      Moreover, Pennsylvania jurisprudence has not adopted Appellant’s


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proposed “de facto tenancy by entireties” to real property. See Constitution

Bank v. Olson, 620 A.2d 1146, 1151 (Pa.Super. 1993) (holding tenancy by

entireties requires legal unity of time, title, possession, interest, and

marriage). A tenancy by the entireties requires a legally binding marriage

plus the satisfaction of all four unities, which are further defined below:

         Unity of time requires that the interests of the tenants vest
         at the same time. Unity of title requires the tenants to have
         obtained their title by the same instrument. … Unity of
         possession requires the tenants to have an undivided
         interest in the whole estate. … Unity of interest requires
         the tenants to have estates in the property of the same type,
         duration and amount.

Fenderson v. Fenderson, 685 A.2d 600, 607 (Pa.Super. 1996), appeal

denied, 548 Pa. 670, 698 A.2d 594 (1997) (internal citations and quotations

omitted).

      Here, the record demonstrates that when Decedent died, the parties

were married but twenty-three of the deeds to the properties in question were

titled solely in Appellee’s name. Regardless of his testimony about his sweat

equity in those properties, Appellant failed to show that at the time of

Decedent’s death, he and Decedent held title to any of the transferred

properties as tenants by the entireties.      See Constitution Bank, supra.

Thus, the record supports the court’s decision to exclude from Decedent’s

estate those properties Decedent and/or Decedent and Appellant transferred

to Appellee during Decedent’s lifetime. Based upon the foregoing, we hold

Appellant established no right by law or equity to a spousal share of the real


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estate transferred during Decedent’s lifetime, and the Orphans’ court properly

denied Appellant’s objections to the first and final account of Appellee as

Administratrix for the Estate of Isabel Carrasquillo Rivera, deceased, on the

grounds asserted. Accordingly, we affirm.

     Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/18




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