J-A13040-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: ESTATE OF HELEN C. CITINO           :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                                           :
APPEAL OF: ROBERT R. LETO AND              :
NANCY BARONE KRIBBS                        :   No. 3356 EDA 2018

              Appeal from the Decree Entered October 29, 2018
               in the Court of Common Pleas of Chester County
                     Orphans’ Court at No(s): 15 17 0247

BEFORE:     SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED AUGUST 27, 2019

      Robert R. Leto and Nancy Barone Kribbs (collectively, Appellants) appeal

from the decree entered on October 29, 2018, which denied their appeal from

the order by the Register of Wills declining to probate a writing dated

September 7, 2010 (2010 Writing) made by Helen C. Citino (Decedent), based

upon its lack of testamentary intent. We affirm.

      Decedent passed away on January 29, 2017, at the age of 98. She was

a lifelong resident of Kennett Square, Pennsylvania, and for most of her life,

she resided in her home on Rosedale Road. She never married and did not

have children, although she referred to Marguerite Mastrippolito, who lived

across the street, as her godchild. Decedent also had other significant people

in her life, such as Leto, who was a long-time neighbor and family friend, and

Kribbs, whose mother was Decedent’s first cousin, making Kribbs Decedent’s

first cousin once removed.




*Retired Senior Judge assigned to the Superior Court.
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        At her death, Decedent had assets worth approximately 2.1 million

dollars, including her property on Rosedale Road. Her attorney, Peter Temple,

Esquire, first prepared a will on Decedent’s behalf in 1981. On October 15,

1999, Decedent executed a new will (1999 Will), again with Attorney Temple’s

assistance. In the 1999 Will, Decedent bequeathed her residuary estate and

most of her personal property to Mastrippolito; her guns to Leto; and

monetary donations to several charities. She named Attorney Temple and

Mastrippolito as co-executors. Kribbs was not named.

        Pertinent to this appeal, the 2010 Writing is a handwritten, signed

document written by Decedent1 on three lined loose-leaf papers. As described

in more detail infra, Leto contended that he found the 2010 Writing in a bag

in Decedent’s house after her death. If accepted as an unrevoked holographic

will,2 Leto would receive Decedent’s property on Rosedale Road, bonds, and

personal property in the house; various named people and charities would

receive $2,000 each; Mastrippolito would receive $50,000; and, because the




1   The parties do not dispute that the handwriting is Decedent’s handwriting.

2 Appellants have various theories about the effect of the 2010 Writing, and
spend much of their brief discussing them. See Appellants’ Brief at 37-65.
Under all of their theories, the 2010 Writing revoked the 1999 Will, but under
some theories, parts or all the 2010 Writing may itself have been revoked by
later writings. The inheritance rights of Leto and Kribbs vary depending on
the theory. Based on our disposition today, we need not address the
alternative theories.


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2010 Writing did not provide for her residuary estate, relatives such as Kribbs

may inherit intestate. The 2010 Writing did not name executors.

      Shortly after Decedent’s death, upon petition of Attorney Temple and

Mastrippolito, the Chester County Register of Wills admitted the 1999 Will to

probate   and   granted   letters   testamentary   to   Attorney   Temple   and

Mastrippolito. Appellants filed a petition for citation to show cause as to why

the 2010 Writing, which Leto averred he found in Decedent’s house after her

death, ought not to be admitted to probate. In the petition, Leto and Kribbs

also sought to be appointed as personal representatives of the estate.

Following a hearing, the Register of Wills ruled that the 2010 Writing was

invalid as a testamentary instrument. Appellants filed a petition sur appeal

from the order of the Register of Wills, and later filed a revised petition.

Mastrippolito filed an answer, and the parties filed cross-motions for summary

judgment. The orphans’ court denied the motions for summary judgment and

conducted a hearing on October 10, 2018.

      The following facts were introduced at the hearing. When Decedent died

in January 2017, she was residing at Jenner’s Pond Retirement Community.

After Decedent died, Leto, on his own initiative, let himself into Decedent’s

house on Rosedale Road with a key he had possessed for years. While he was

there, Leto retrieved a tote bag, which, according to Leto, contained loose

handwritten documents, including the 2010 Writing.




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     The last time Leto saw the bag was when Decedent was residing at

Friends Home, a senior community.3      Ruby Trivett, Decedent’s caregiver,

brought Decedent to Decedent’s residence on Rosedale Road and met Leto at

the house. Decedent inquired where her bag was, and located a tote bag in

the dining room behind the door. When Decedent unzipped the bag, Leto saw

an envelope in the bag marked “will.”     Decedent took the bag with her to

Friends Home. Leto assumed Trivett brought the bag back to the Rosedale

Road residence when Decedent left Friends Home.

     When Leto found the bag after Decedent’s death, he did not find an

envelope marked “will.” Instead, he found a number of loose papers with

Decedent’s handwriting, including the 2010 Writing.    The papers also had

other dates, including two marked January 15, 2008, one marked March 24,

2010, and two marked March 2, 2011. The two papers marked March 2, 2011,

both state, “This Will will supercede all others[;] the last one was 10-15-

1999.” Exhibit R-5. Most of the handwritten documents reference various

bequests of property, and many contain strikethroughs in handwriting. None

of the papers bears Decedent’s signature except the 2010 Writing.




3
  Leto did not provide a date for the meeting, but testified at another point
that Decedent went to Brandywine Hall, a medical rehabilitation facility, for
three weeks in 2013, and then moved to Friends Home, where she stayed
from 2013 to 2015.


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      Based upon the holes in the original papers and the marks on the copy,

it appeared that the three pages of the 2010 Writing papers were once stapled.

Leto testified the 2010 Writing was unstapled when he found it; Attorney

Temple said it was unstapled when Leto showed it to him. The first page was

denoted “Pg 1” and dated September 7, 2010. Exhibit R-3. There are three

paragraphs on the first page, with a long diagonal line running from the top

left to the bottom right of each paragraph. Both the handwriting and diagonal

lines were written in blue ink. Although the first page ends with “and on Pg.

2,” id., Leto testified that there was no “Pg 2” in the bag. On “Pg 4,” the last

writing on the page is Decedent’s signature and the date “9-7-2010.” Id.

      The content of the 2010 Writing is as follows.

                                           Sept 7 – 2010

      Pg 1 To Jennifer Fields of Peter Temple, Esquire[4]

                 This new will supercede all others – the last one
            was 10-15-1999

                  I bequeath all my real estate consisting of 20 ½ acres
            of land, house and garage and contents of house to Robert
            Leto, P.O. Box 788, Rosedale Road, Kennett Sq. pa 19348,
            Phone 610-444-2776 and also my Municipal Bonds including
            1 CD, contact Don Sellers of Edward Jones 701 East
            Baltimore Pike Kennett Sq. Pa 19348
            Phone 610-444-5220




4 Jennifer Field is Attorney Temple’s long-time paralegal. Decedent sometimes
identifies her last name as “Field” and sometimes as “Fields.”


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             And on Pg. 2[5]

        Pg 3 I bequeath the sum of $2,000.00 to the following persons
                                                           $2,000 ea
                   Parker Leto
                   Gabriel James Leto
                   sons of Samantha & Robert Leto Jr. of Kennett Sq. Pa
                   Celia Francis Leto, daughter of Ray and Emily Leto of
                   6322 Duffy Road, Columbus, Ohio

                   Jennifer Field of Peter Temple (Jen, can never forget
                   how nice you were)

                   Kevin McCarthy – Kennett

                   Albert McCarthy – Kennett

                   St. Anthony Church –
                         Wil. Delaware

                   St. Theresa, 1313 Frontage Rd, Darien, Il. 60561-
                   5340

                   St. Jude of Baltimore, Maryland
                         c/o Fr. Bob Colaresi, O. Carm

             And to my God child whom I loved dearly 50,000.00
        Marguerite Mastrippolito

        Pg 4 *[6]St. Anthony Church
             Wilmington, Delaware

             St. Theresa, Father Bob Colaresi
             1313 Frontage Rd
             Darien, Il 60561-5340

             St. Jude

5 The only writing on “Pg 1” that does not have diagonal lines crossing through
it is the date, “Pg 1,” and “And on Pg. 2.”

6   There was a handwritten line drawn between the two handwritten stars.


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J-A13040-19


            Baltimore, Maryland

            St. Patrick Church
            205 Lafayette St.
            Kennett Sq., Pa 19348
            Father Sharrett


            *901 N. DuPont St.
            Wilmington, Delaware

                                          s/ Helen C. Cintino 9-7-2010


Id. (verbatim; some line spacing altered).

      Leto testified that he took the 2010 Writing immediately to Attorney

Temple. Attorney Temple made a copy of it for his file, but he did not seek to

probate the 2010 Writing, prompting Appellants to do so. Attorney Temple

testified Decedent never mentioned the 2010 Writing to him or told him she

had written her own will.

      In addition to the testimony regarding the 2010 Writing, the following

evidence was introduced about the nature of the relationships Appellants and

Mastrippolito had with Decedent. From the early 1970s until she retired in

1983, Decedent shared a carpool with Leto, who lived one property away from

Decedent on Rosedale Road. According to Leto, his family and Decedent’s

family were friends, and following the deaths of Decedent’s siblings, Leto

repaired and maintained Decedent’s property at her request. Decedent paid

Leto for materials but not labor. In 2010, Leto began helping Decedent handle




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her financial investments. At Leto’s suggestion, she met with his financial

advisor and gave the advisor money to invest.

     Kribbs, Decedent’s first cousin once-removed and the only party related

to Decedent by blood, testified she knew Decedent her whole life and visited

her periodically as a child and an adult. At one point, after Kribbs had lost

touch with Decedent, Kribbs received a Christmas card from Decedent with a

note inside from Leto and his wife, informing her who they were and that

Decedent was residing at Friends Home. Kribbs visited Decedent at Friends

Home and met Leto for the first time.

     As mentioned supra, Mastrippolito is Decedent’s goddaughter and lived

across the street from Decedent. According to Mastrippolito, she had known

Decedent since birth. Following the death of Decedent’s sister Millie in 1997,

until 2013, Mastrippolito visited Decedent approximately five times a week.

She took Decedent to the doctor, bank, and hairdresser; grocery shopped for

Decedent; mailed her mail; and assisted in paying her bills.       During this

timeframe, the pair went out to eat almost every Thursday night.

     In 1999, shortly after she executed the 1999 Will, Decedent executed a

power of attorney (POA) prepared by Attorney Temple naming Mastrippolito

and Attorney Temple as co-agents. In 2013, while Decedent was staying at

Brandywine Hall, Leto contacted his attorney, Thomas E. Martin, Esquire, and

arranged for him to prepare a POA for Decedent naming Leto and his wife as




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co-agents. Although he had not spoken to Decedent, Attorney Martin brought

the prepared POA to Brandywine Hall, where he met with Decedent and the

Letos, as well as Decedent alone. Decedent signed the new POA on November

5, 2013.

     Trivett, Decedent’s caregiver, learned about the switch in POA from

Leto’s wife and promptly notified Mastrippolito and Attorney Temple. Attorney

Temple reviewed the powers granted to Leto and his wife with Decedent.

Fourteen days after switching the POA, Decedent instructed Attorney Temple

to prepare documents revoking the November 5, 2013 POA and instituting a

new POA naming Attorney Temple and Leto as her co-agents. She executed

this POA on November 19, 2013. Attorney Temple and Leto remained co-

agents at the time of Decedent’s death, although Leto was no longer

Decedent’s healthcare POA.     In March of 2016, Decedent revoked her

healthcare POA naming Leto as her health care agent and executed a new

healthcare POA naming Trivett, her caregiver, instead.

     The parties both point to statements by Decedent that they believe

demonstrate her discontent with the opposing party.      Appellants claimed

Mastrippolito and Decedent had a falling out, perhaps causing her to change

her 1999 Will to reduce Mastrippolito’s share. According to Leto, Decedent

told him in 2013 that she had a disagreement with Mastrippolito and “she is

out of my life.” N.T., 10/10/2018, at 37. Kribbs claimed that she once asked




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J-A13040-19


Decedent why she was not spending a holiday with Mastrippolito. Decedent

responded, “[w]e will not speak of her” and pantomimed her lips zipping

closed. Id. at 108-09. The orphans’ court observed that at the hearing before

the orphans’ court, Kribbs testified this exchange occurred around Easter 2010

(i.e., before the 2010 Writing in September); at the hearing before the

Register of Wills, however, Kribbs testified the exchange occurred while

Decedent was living at Friends Home, which was in 2013. Orphans’ Court

Opinion, 1/3/2019, at 8.

     Mastrippolito, on the other hand, denied that she and Decedent ever

were on bad terms.     According to Mastrippolito, she had to stop visiting

Decedent in 2013 because Mastrippolito’s sister was diagnosed with Stage IV

cancer and Mastrippolito’s husband also became ill. While Decedent was at

Brandywine Hall in 2013, Mastrippolito learned from Attorney Temple that

Decedent had revoked her POA. Mastrippolito testified that when she went to

Brandywine Hall and asked Decedent about her decision to change the POA,

Decedent threw her hands up in the air and said, “Everybody wants the farm!”

N.T., 10/18/2019, at 137. Mastrippolito left after Decedent remained upset.

     Trivett, who was Decedent’s caregiver and often at Decedent’s home,

claimed Decedent never spoke ill of Mastrippolito, and once told Trivett she

did not want to call Mastrippolito because she did not want to be a bother.

Trivett was present when Decedent made the comment about everyone




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wanting her farm, and testified that Decedent once told her that Leto wanted

her farm. Trivett was also present when Decedent revoked the November 5,

2013 POA prepared by Leto’s attorney.         Both Trivett and Attorney Temple

testified that during Attorney Temple’s discussions with Decedent about

changing the POA to appoint Attorney Temple and Leto as co-agents, he asked

Decedent if she wanted to make any changes to the 1999 Will, and she

responded no.    According to Attorney Temple, Decedent told him she still

wanted to honor the agreement she had with her sister Millie.        When she

executed the 1999 Will, she told Attorney Temple that she and her sister Millie,

who also had no children, had agreed to leave their estates to Mastrippolito.

      After hearing the above evidence, on October 29, 2018, the orphans’

court determined that the Register of Wills did not err in deciding that the

2010 Writing should not be admitted to probate, and entered an order denying

Appellants’ appeal.

      The instant appeal followed. Appellants and the orphans’ court complied

with the mandates of Pa.R.A.P. 1925. Appellants raise the following issue for

our review: “As a matter of law should the [hearing] court and the Register of

Wills have admitted to probate the autographic signed September 7, 2010

writing self-designated as a ‘will’ by [Decedent]?” Contestents’ Brief at 4.

      This Court has explained that our standard of review in will contests is

narrow.




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      In a will contest, the hearing judge determines the credibility of
      the witnesses. The record is to be reviewed in the light most
      favorable to appellee, and review is to be limited to determining
      whether the trial court’s findings of fact were based upon legally
      competent and sufficient evidence and whether there is an error
      of law or abuse of discretion.

      Only where it appears from a review of the record that there is no
      evidence to support the court’s findings or that there is a
      capricious disbelief of evidence may the court’s findings be set
      aside.

In re Estate of Tyler, 80 A.3d 797, 802 (Pa. Super. 2013) (en banc)

(citations omitted).

      Appellants posit that the September 2010 writing is a valid will because

it was signed at the end by Decedent and demonstrated her testamentary

intent. Appellants’ Brief at 33-37. They view the dispute as a pure issue of

law. Id. at 15. Appellants emphasize Decedent’s choice of the word bequeath

and her reference to the document as a will. Id. at 36. Appellants discount

the significance of the missing page, claiming that a missing page is

insufficient to defeat a will. Id. at 41. They also discount the three diagonal

lines on page one, claiming the lines are ambiguous and do not necessarily

indicate her intent to revoke all or some of her 2010 Writing. Id. at 46-59.

      Despite Appellants’ assertion that the issue presents a pure matter of

law, the orphans’ court examined extrinsic evidence after determining there

was ambiguity as to the character of the 2010 Writing and the intent of

Decedent. Orphans’ Court Opinion, 1/3/2019, at 8. The orphans’ court found




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J-A13040-19


it to be significant that the 2010 Writing had ambiguous “strike lines” on page

one, was missing “pg. 2,” appeared to once have been stapled together, and

was found amongst other loose papers in a bag. Id. at 6-8, 12-13. By the

orphans’ court’s assessment, “[i]t is not possible to determine the internal

sense of the document without seeing the missing page and knowing the

meaning of the strike marks.” Id. at 12.

         Turning to extrinsic evidence for assistance, the orphans’ court observed

that Decedent wrote two handwritten notes in 2011 that referenced her will

as the 1999 Will and made no mention of the 2010 Writing. Id. at 7-8. The

orphans’ court also emphasized the fact that Decedent never told Attorney

Temple or anyone else that she had written a new will.           Id. at 12.   The

orphans’ court reviewed the testimony regarding Decedent’s relationships with

Appellants and Mastrippolito, and found to be credible Attorney Temple’s

testimony that he “gave Decedent ample opportunity to make changes to her

1999 Will [and] Decedent always declined”. Id. at 12. Thus, “[t]he ambiguity

in the document – strike lines on the first page, a missing second page[,] and

a suggestion that at one time the pages were stapled together – and the lack

of evidence that Decedent intended the document to serve as a will, [led the

orphans’ court] to conclude that [the 2010 Writing] is not testamentary.” Id.

at 13.




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      In considering whether the orphans’ court erred as matter of law by

determining that the 2010 Writing is nontestamentary, we bear in mind the

following.

      No rule regarding wills is more settled than the general rule that
      the testator’s intent, if it is not unlawful, must prevail. Moreover,
      the testator’s intention must be ascertained from the language
      and scheme of his will; it is not what the Court thinks he might or
      would have said in the existing circumstances, or even what the
      Court thinks he meant to say, but is what is the meaning of his
      words.

      Our determination focuses on whether we are faced with a
      document that is testamentary as a matter of law,
      nontestamentary as a matter of law, or ambiguous, in which case
      extrinsic evidence is to be considered to resolve the ambiguity.

In re Estate of Tyler, 80 A.3d at 802-03 (citations omitted).

      “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 will or codicil, as

the case may be.” In re Kauffman’s Estate, 76 A.2d 414, 416 (Pa. 1950).

The court must determine whether, as matter of law, the instrument “shows

testamentary intent with reasonable certainty.” Id. The form and language

of a writing are simply factors to be considered; an “informal instrument may

be a fully effective will if the language suffices to show testamentary intent.”

In re Ritchie’s Estate, 389 A.2d 83, 87 (Pa. 1978). “The mere fact that [a]

paper [is] in the form of a letter does not affect the result.” In re Kauffman’s

Estate, 76 A.2d at 416 (construing a handwritten letter reading “dear bill I



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J-A13040-19


want you to have farm Annie Kauffman” as testamentary in nature after

examining extrinsic evidence).

         “Testamentary intent, however, is an indispensable element for the

finding of a will. The writing must be dispositive in character, and the

disposition must be intended to take effect after the testator’s death.” In re

Ritchie’s Estate, 389 A.2d at 87. Instructions and memoranda for use in

drawing a will in another writing in the future do not show the intent to make

the current writing a testamentary disposition. Id. (concluding that a writing

was a list or memorandum contemplating a will to be drawn in the future, not

a will with testamentary intent); In re Fick’s Estate, 211 A.2d 425, 427 (Pa.

1965) (concluding letter was merely a direction to lawyer to draw up a new

will).

         A will may be valid despite being written on “separate, not physically

united, sheets of paper only the last one of which is signed.”      In re Van

Gilder’s Estate, 220 A.2d 21, 25 (Pa. 1966). “The test is: Are the papers

‘connected by their internal sense, by coherence or adaptation of parts’?” Id.

(quoting Covington’s Estate, 33 A.2d 235 (Pa. 1943)).

         Appellants cite to In re Sheaffer’s Estate, 87 A. 577 (Pa. 1913), in

support of their contention that the missing page did not interfere with the

ability to determine the testamentary intent of the 2010 Writing. In that case,

Sheaffer executed a will in the presence of two witnesses. When the will was




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found after his death, the first page, which contained testamentary

dispositions, was missing. Our Supreme Court held that the document was

properly admitted to probate because it evidenced testamentary intent,

notwithstanding the removal of the first page. Id. at 579-80. However, we

find this case to be distinguishable, as there was testimony that Sheaffer

clearly intended the document to serve as his will, and even provided specific

direction as to where the will could be found when he fell ill. Id.

      Instead, we find In re Fisher’s Estate, 129 A. 90 (Pa. 1925), to be

applicable.   In that case, after Fisher’s death, Fisher’s brother found an

unsealed envelope with writings in her safe-deposit box. The sheets were not

attached, but most significantly, some of the numbered paragraphs were cut

off with a sharp instrument. The remaining paragraphs “had not been put

together so as to make clear that a completed instrument had been prepared.”

Id. at 90. The Court noted that Fisher’s brother had access to the safe-deposit

box, leaving open the possibility of wrongdoing or mistake.      Id. at 90-91.

Therefore, the Court held that because it was unclear what was in the

paragraphs that were removed, and something may have been “omitted[,]

which the decendent may have intended to include,” the orphans’ court did

not err by refusing to admit the document for probate. Id.

      In the instant case, similar to In re Fisher’s Estate, the ambiguous

lines on page one, the missing “pg. 2,” the likely detachment from its original




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staple, and its location in the bag with many other loose handwritten papers,

make it unclear if the 2010 Writing is connected by its internal sense.

Furthermore, as originally written, the salutation to the paralegal in Attorney

Temple’s office indicate the document may not have been testamentary in

nature, but instead was a letter to Decedent’s lawyer or notes to herself

regarding changes she pondered making to her 1999 Will. See In re Ritchie's

Estate, 389 A.2d at 87; In re Fick’s Estate, 211 A.2d at 427. Therefore,

we conclude that the testamentary intent of the 2010 Writing is ambiguous.

      The extrinsic evidence further bolsters the conclusion that the 2010

Writing was likely a letter to Decedent’s attorney or notes to herself. The

2010 Writing was not the only writing addressed to Attorney Temple’s

paralegal.   Moreover, like the orphans’ court, we find it meaningful that

Decedent’s other notes dated after the 2010 Writing referenced her will as the

1999 Will, Decedent told Attorney Temple in 2013 that she did not want to

make changes to her will, and she never told anyone she made a new will.

The record indicates that Decedent had an ongoing relationship with Attorney

Temple and regularly used him, and others, to attend to her legal and financial

affairs, making it unlikely that she decided to author a holographic will. See

In re Ritchie's Estate, 389 A.2d at 88 (examining the manner in which

Ritchie conducted his other affairs and concluding it would be out of character

for Ritchie to have written his own will).




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      Based on the foregoing, we agree with the orphans’ court that neither

the 2010 Writing itself nor the extrinsic evidence demonstrated Decedent’s

testamentary intent with reasonable certainty, and we affirm the orphans’

court’s decree.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 8/27/19




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