J-A13038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ESTATE OF JOSEPH W.               :   IN THE SUPERIOR COURT OF
 PEMBERTON                                :         PENNSYLVANIA
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 APPEAL OF: JERROD DUNKER                 :        No. 1567 WDA 2017

               Appeal from the Order Dated October 11, 2017
              in the Court of Common Pleas of Greene County,
                   Orphans' Court at No(s): 120 OC 2016

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 21, 2018

      Jerrod Dunker (“Dunker”) appeals from the Order dismissing his Petition

for Citation Sur Appeal from the Register of Wills, and admitting to probate

the April 23, 2016 codicil (the “Codicil”) to the will (the “Will”) of Joseph W.

Pemberton (“Decedent”). We affirm.

      In its Opinion, the Orphans’ Court set forth the relevant factual

background as follows:

           On August 22, 2016, [Decedent] died a resident of Greene
      County, Pennsylvania. The Petitioner … is [Dunker], a friend of
      Decedent.     The Respondent is Richard D. Pemberton
      [(“Pemberton”)], brother of Decedent.

             On September 14, 2016, admitted into probate was [the
      Will], and [the Codicil,] a handwritten document signed by []
      Decedent and dated April 23, 2016. At the time of his death, []
      Decedent did not have a wife or any other blood relatives other
      than [Pemberton]. The Will … left a farm located at 799 Windy
      Gap Road, Aleppo, Pennsylvania (“Windy Gap”) and a 2011 Harley
      Davidson motorcycle (“Motorcycle”) to [Dunker].       All other
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       property was left to [Pemberton,] and in the event of his death,
       to [Pemberton’s] wife, Barbara Pemberton [(“Barbara”)].

              [The Codicil] changed the testamentary scheme of the [Will]
       so that all of [] Decedent’s property, including Windy Gap[,] [was]
       left to [Pemberton]. Specifically[,] it consisted of a list of []
       Decedent’s property, was signed and dated at the bottom by []
       Decedent, and contained the words “All for Dick” under all listed
       property except for “guns,” “bike trailer” and three outstanding
       loans.

             [Dunker] subsequently filed a [“]Petition Sur Appeal from
       Register in Probating Will[,”] challenging the [Codicil] being
       admitted as a codicil. On January 31, 2017, the [Orphans’] Court
       held an evidentiary hearing on the Petition. The issue in the
       hearing was the testamentary intent of [] Decedent. There is no
       dispute that Decedent is the author of the [Codicil].[1] On October
       11, 2017, the [Orphans’ C]ourt issued its Order and Opinion,
       finding the [Codicil] valid and enforceable.

Trial Court Opinion, 1/16/18, at 1-2 (pages unnumbered; paragraphs

reorganized; footnotes omitted; footnote added). Dunker filed a timely Notice

of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.

       On appeal, Dunker raises the following questions for our review:

       1. Did the [Orphans’ C]ourt commit an abuse of discretion and err
       as a matter of law in failing to correctly apply the law relative to
       the Pennsylvania Dead Man’s Act to the parties’ testimony and to
       [Pemberton’s] and [Barbara’s] testimony at the hearing in the
       [Orphans’ C]ourt?

       2. Did the [Orphans’ C]ourt commit an abuse of discretion and err
       as a matter of law in finding the [Codicil] to be a valid codicil to
       the [W]ill of [Decedent] dated September 3, 2014?


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1 The parties also agree that the words “All for Dick” were written by
Pemberton, rather than Decedent.

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Brief for Appellant at 8 (claims reordered).

            Our standard of review of the findings of an Orphans’ Court
      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.

            As an appellate court we can modify an Orphans’ Court
      decree only if the findings upon which the decree rests are
      unsupported by competent or adequate evidence or if there has
      been an error of law, an abuse of discretion or a capricious
      disbelief of competent evidence. The test to be applied is not
      whether we, the reviewing court, would have reached the same
      result, but whether a judicial mind, after considering the evidence
      as a whole, could reasonably have reached the same conclusion.

In re Estate of Devoe, 74 A.3d 264, 267 (Pa. Super. 2013) (quotation marks

and citations omitted).

      In his first claim, Dunker alleges that the Orphans’ Court improperly

allowed Pemberton and Barbara to testify, in violation of Pennsylvania’s Dead

Man’s Act. Brief for Appellant at 24-25. Dunker argues that Pemberton and

Barbara engaged in a transaction with Decedent, prior to his death, when

Decedent prepared the Codicil.     Id. at 26-28.    According to Dunker, that

transaction resulted in Pemberton and Barbara having an interest in

Decedent’s property that is adverse to Decedent, and Dunker represents

Decedent’s interest. Id. at 27-28.

            Questions concerning the admissibility of evidence lie within
      the sound discretion of the trial court, and we will not reverse the
      court’s decision absent a clear abuse of discretion. An abuse of
      discretion may not be found merely because an appellate court

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      might have reached a different conclusion, but requires a manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or such
      lack of support as to be clearly erroneous.

Crespo v. Hughes, 167 A.3d 168, 177 (Pa. Super. 2017) (quotation marks

and citation omitted).

      The Dead Man’s Act states, in relevant part, the following:

      § 5930. Surviving party as witness, in case of death, mental
      incapacity, etc.

      [W]here any party to a thing or contract in action is dead, … and
      his right thereto or therein has passed, either by his own act or
      by the act of the law, to a party on the record who represents his
      interest in the subject in controversy, neither any surviving or
      remaining party to such thing or contract, nor any other person
      whose interest shall be adverse to the said right of such deceased
      … party, shall be a competent witness to any matter occurring
      before the death of said party….

42 Pa.C.S.A. § 5930.

      “The purpose of this Act is to prevent the injustice which might flow from

permitting the surviving party to a transaction with a decedent to give

testimony thereon favorable to himself and adverse to the decedent, which

the latter’s representative would be in no position to refute.”         G.J.D. v.

Johnson, 669 A.2d 378, 384 (Pa. Super. 1995) (citation omitted).

      For a witness to be disqualified as a witness under the Dead Man’s
      Act, the following must be proven: (1) the deceased must have
      had an interest in the matter at issue, i.e., an interest in the
      immediate result of the suit; (2) the interest of the witness must




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       be adverse;[2] and (3) a right of the deceased must have passed
       to a party of record who represents the deceased’s interest.

Pagnotti v. Old Forge Bank, 631 A.2d 1045, 1046 (Pa. Super. 1993)

(citation omitted; footnote added). “[T]he party challenging the competency

of a witness[] has the burden of proving incompetency.” Id.

             Several exceptions to the Dead Man’s Act are included in the
       statute, one of which is the devisavit vel non exception. In
       Dalbey’s Estate, … 192 A. 129 ([Pa.] 1937), our Supreme Court
       stated that the devisavit vel non exception:

              renders competent all witnesses in disputes involving
              the testamentary disposition of property regardless of
              any interest possessed by them in the particular
              decedent’s property. This rule is in keeping with the
              modern tendency to admit all testimony having a
              direct bearing on issues involved, notwithstanding the
              witness’ interest, which reflects only on his credibility.
              This is especially true where other evidence is at times
              unavailable, as is frequently the case in litigation of
              this character.

             The Dead Man’s Act renders the witness’ testimony
       competent where the controversy over decedent’s property is
       between parties respectively claiming such property by devolution
       on the death of the owner. The definition of the term devolution
       includes the transfer of a decedent’s property both by operation
       of law and by will.

Pagnotti, 631 A.2d at 1046-47 (quotation marks and citations omitted;

italicization added).




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2 “The true test for determining an interest which will disqualify a witness
under the [Dead Man’s] Act is whether he will gain or lose, as the direct legal
operation and effect of the judgment rendered.” In re Estate of Hall, 535
A.2d 47, 54 n.4 (Pa. 1987).

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      With regard to Pemberton, the Dead Man’s Act applies. However, the

dispute involves Decedent’s testamentary disposition of his estate, including

Windy Gap and the Motorcycle. Thus, Pemberton was competent to testify

regardless of his interest in the property. See id.

      With regard to Barbara, the Dead Man’s Act only finds incompetent to

testify those who have an adverse interest in the matter at issue. See id.

Barbara was not named a beneficiary or contingent beneficiary in the Codicil;

her status as a contingent beneficiary in the Will does not include a claim to

Windy Gap and the Motorcycle; and she does not have an interest in the

matter as a result of being Pemberton’s spouse. See Estate of Grossman,

406 A.2d 726, 732 (Pa. 1979) (stating that “[w]e can conceive of no

acceptable rationale for a per se rule disqualifying the testimony of the spouse

of a surviving interested party to a transaction with a decedent.”); see also

Pagnotti, 631 A.2d at 1046-47. Nevertheless, as noted above, the matter at

issue is the testamentary disposition of Windy Gap and the Motorcycle. See

Pagnotti, 631 A.2d at 1046-47. Thus, Barbara was also competent to testify.

Accordingly, the Orphans’ Court did not abuse its discretion in permitting

Pemberton and Barbara to testify.

      In his second claim, Dunker contends that the Orphans’ Court erred in

finding the Codicil to be a codicil to the September 2014 Will. See Brief for

Appellant at 17, 18. Dunker alleges that the Codicil is invalid because it lacks

testamentary intent. Id. at 17-24. Dunker argues that the language of the


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Codicil, including the phrase “All for Dick,” is ambiguous and non-dispositive.

Id. at 18, 22, 24. Dunker points out that “All for Dick” was not written by

Decedent.    Id. at 24.    According to Dunker, the Codicil is invalid and

unenforceable. Id.

      Where a writing

      is proposed for probate and its testamentary character is
      challenged, it is incumbent upon the court, in the first instance, to
      examine the paper, its form and its language, and determine
      therefrom as a matter of law whether or not it shows testamentary
      intent with reasonable certainty.      If testamentary intent is
      satisfactorily revealed from such an examination by the Court, the
      paper should be probated….

Estate of Logan, 413 A.2d 681, 682 (Pa. 1980); see also In re Estate of

Shelly, 950 A.2d 1021, 1026 (Pa. Super. 2008) (stating that whether a

document is testamentary is a matter of law).

      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.

In re Estate of Elkins, 888 A.2d 815, 823 (Pa. Super. 2005); see also In

re Estate of Smith, 694 A.2d 1099, 1102 (Pa. Super. 1997) (stating that

“[t]o ascertain this intent, a court must examine the words of the instrument

and, if necessary, the scheme of distribution, the circumstances surrounding

the execution of the will and other facts bearing on the question.”).




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      “A writing need not assume a special form to take effect as a … codicil.”

In re Estate of Fleigle, 664 A.2d 612, 615 (Pa. Super. 1995).              “If the

instrument is in writing and signed by the decedent at the end thereof and is

an otherwise legal declaration of his intention which he wills to be performed

after his death, it must be given effect as a … codicil[.]” In re Estate of

Tyler, 80 A.3d 797, 803 (Pa. Super. 2013); see also 20 Pa.C.S.A. § 2502

(stating that “[e]very will shall be in writing and shall be signed by the testator

at the end thereof….”).

      Here, the Codicil is a list of items, handwritten by Decedent. Centered

and in large handwriting at the top of the note are the words “Joey’s Free &

Clear.” Below that are the following items, listed vertically, with purported

values listed to the right of each item:

            2015 Torque camper                     44,000
            1999 Truck                             8,000
            1976 corvette                          18,000
            2007 nighttrain                        10,000
            2006 Horse Trailer                     14,000
            1965 J.D Tractor                       4,000
            Farm on Bryan Ridge                    200,000
            Free Gas 55 acres                      4000 per acre
            Farm 799 Windy Gap Rd                  300,000
            6,000 Per Acre Free gas                5299
            Acres payments
            2014 M F Tractor                       16,000 payment
            2016 H D Trike                         40,000
            Contents in garage sale
                  ALL FOR Dick
            Guns
            Bike Trailer            400.00
            PnC                     29,000
            Sams                    3,000
            PnC                     3,000

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                         4-23-16
              /s/ Joseph W. Pemberton            8:24PM

Codicil, 4/23/16.3

       Pemberton testified that on April 23, 2016, Decedent came to his house,

asked for a pen and paper, wrote down a list of his belongings and debt,

showed Pemberton the list, and said “that’s all for you.” See N.T., 1/31/16,

at 56-57. Pemberton asked “what do you mean[?] I don’t see nothing on

here.” Id. According to Pemberton, Decedent told Pemberton to write “for

Dick” on the document.             Id.   When Pemberton asked “are you sure?,”

Decedent again told him to “just put all for Dick on there.”         Id. at 57.

Pemberton testified that he again asked if Decedent was sure. When Decedent

said yes, he wrote “ALL FOR Dick,” as instructed, while Decedent was still

standing next to him.        Id.    Subsequently, Decedent signed and dated the

Codicil at the bottom. Id. at 57-58.

       Similarly, Barbara testified that she had been in another room when

Decedent arrived at the house. Id. at 67. Barbara stated that Decedent came

into the room and told her that he had just listed everything he owned on a

piece of paper, and that he wanted her and Pemberton to have “everything.”

Id. at 69. Decedent further told Barbara that he wanted them to keep the

paper in case something happened to him. Id.


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3 The list contains illegible handwriting prior to the items “Free Gas 55 Acres”
and “PnC 29,000” and along the left hand side of the page. There are also
stars next to the items “1965 J.D Tractor” and “2014 M F Tractor.”

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       The Orphans’ Court found the testimony of Pemberton and Barbara

credible. Orphans’ Court Opinion, 1/16/18, at 5 (unnumbered); see also In

re Estate of Devoe, supra.            The Codicil explicitly identifies the items in

question, including Windy Gap and the Motorcycle, and the intent to make

Pemberton the beneficiary. Further, there is no dispute that Decedent signed

the Codicil at the end of the document. See 20 Pa.C.S.A. § 2502. Because

Decedent used testamentary language, naming his beneficiary and the

property, we conclude that the Orphans’ Court did not abuse its discretion in

probating the Codicil.4 See In re Estate of Devoe, supra. Accordingly, we

affirm the Orphans’ Court’s Order.

       Order affirmed.




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4 Dunker cites to the Pennsylvania Supreme Court decision, In re Ritchie’s
Estate, 389 A.2d 83 (Pa. 1978), in support of his assertion that the Codicil is
not testamentary in character. In In re Ritchie’s Estate, a purported will
bearing the words “For Aileen & Jane Executors” was examined for
testamentary intent. The Court stated that the word “for,” could have had
“dispositive significance[,] if coupled with extrinsic evidence that it was
inserted pursuant to the decedent’s declarations concerning disposition of his
property.” Id. at 87. The testimony in In re Ritchie’s Estate indicated that
the decedent discussed naming Eileen and Jane the executors, not
beneficiaries. Here, contrary to In re Ritchie’s Estate, there was extensive
testimony indicating Decedent’s intent to name Pemberton his beneficiary.
Accordingly, the testimony, coupled with the phrase “All for Dick,” evidences
Decedent’s testamentary intent.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2018




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