J-A18027-17

                             2017 PA Super 287



IN RE: ESTATE OF JOHN BRUMBAUGH                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: JUDY MCCLINTOCK

                                                    No. 154 WDA 2017


                Appeal from the Order of December 21, 2016
              In the Court of Common Pleas of Bedford County
                    Orphans' Court at No(s): 26 for 2016


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

OPINION BY LAZARUS, J.:                        FILED SEPTEMBER 6, 2017

      Judy McClintock appeals from the order entered in the Court of

Common Pleas of Bedford County, Orphans’ Court Division, sustaining

Appellee Marjorie Brumbaugh’s appeal from the Register of Wills.       Upon

careful review, we affirm.

      John Brumbaugh (“Decedent”) died on November 7, 2015. At the time

of his death, he resided with McClintock, with whom he had been

romantically involved for over nine years.   Letters of Administration were

issued to Decedent’s mother, Marjorie Brumbaugh, on November 12, 2015.

On January 15, 2016, McClintock filed a petition before the Register of Wills

seeking to probate a document dated March 22, 2015 and purporting to be a

photocopy of Decedent’s last will and testament. McClintock claimed to have

found the document in the Decedent’s zippered bank pouch, in which he
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kept his important papers. Brumbaugh opposed the petition, but, on May 4,

2016, the Register issued a decision admitting the document to probate as

the Decedent’s will and revoking Brumbaugh’s Letters of Administration. In

her decision, the Register stated as follows:

       The document produced by Ms. McClintock and purported to be
       the decedent’s Will was notarized by Dorothy E. Lykins, formerly
       Dorothy E. Hilton, a notary public in the state of Ohio. She also
       serves as the Clerk of Courts for the City of Franklin Municipal
       Court in Franklin, Ohio. Ms. Lykins confirmed the subject Will
       was signed by the decedent in front of her and the Will sought to
       be admitted to probate was in fact the one signed by the
       decedent. She also explained the circumstances involving his
       execution of the Will and the type of writing instrument he used.
       No handwriting expert testified before me on [McClintock’s]
       behalf so as to give an opinion contesting the Will or the
       decedent’s signature thereon.

       Per the document admitted into evidence, the testimony
       presented to me at the hearing, including the Affidavit of Ms.
       Lykins, and my telephone conversation with Ms. Lykins, it
       appears that such document is the decedent’s Last Will and
       Testament and was intended so to be.

Decision of the Register of Wills, 5/4/16, at [2].

       Brumbaugh filed an appeal to the Orphans’ Court1 asserting that the

Register improperly admitted the photocopy to probate, absent the requisite

proof that the original had not been revoked and/or destroyed. Brumbaugh
____________________________________________


1
  A hearing on appeal to the Orphans’ Court from a decision of the Register
of Wills is de novo, unless the parties have agreed otherwise. See 20
Pa.C.S.A. § 776; In re Estate of Luongo, 823 A.2d 942, 960 (Pa. Super.
2003). In a hearing de novo, the Orphans' Court does not base its decision
on the testimony offered before the Register, but hears all evidence that
either party desires to present and makes its own credibility determinations.
Luongo, supra.



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argued that the Register improperly relied on an affidavit signed by the

notary, despite her repeated objections to the admissibility of the statement.

Brumbaugh also asserted that the Register’s decision was based, in part, on

an improper ex parte conversation with the notary. Brumbaugh argued that

the document was either forged or altered and that neither the proponent

nor the Register permitted her to submit it to a document examiner for

analysis prior to the Register rendering its decision.

      The Orphans’ Court held hearings in the matter on August 25, 2016

and October 7, 2016, at which time it heard the testimony of, inter alia,

McClintock, Lykins and Khody Detwiler, a document examiner.                  On

December 21, 2016, in open court, the court rendered its decision,

concluding that McClintock had failed to sustain her burden of proving that

the original will was not revoked by the testator.       Specifically, the court

found that McClintock failed to prove that the contents of the original will

were substantially as appeared on the copy of the will presented for probate.

Accordingly, the Orphans’ Court reversed the order of the Register and

directed that the probate of the document in question be vacated.

McClintock filed a timely appeal, in which she raises the following issue for

our consideration:

      Did the Orphans’ Court below err in reversing the decision of the
      Register of Wills, which had admitted to probate the document at
      issue at the Last Will and Testament of John Edward Brumbaugh,
      on the basis it could not so qualify because of the photostatic
      nature of its non-notarial content, given the circumstances
      present?


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Brief of Appellant, at 4.

       We begin by noting our scope and standard of review on appeal from a

decree of the Orphans' Court adjudicating an appeal from probate:

       [T]he 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 Nalaschi, 90 A.3d 8, 11 (Pa. Super. 2014), quoting In re

Bosley, 26 A.3d 1104, 1107 (Pa. Super. 2011) (internal citations omitted).

       Here, the document submitted for probate was not an original will, but

a photocopy.2      Where a testator retains the custody and possession of his

will and, after his death, the will cannot be found, a presumption arises that

it was revoked or destroyed by the testator. In re Estate of Murray, 171

A.2d 171, 176 (Pa. 1961). In order to establish the existence of a lost will

which was in the custody of the testator prior to his death, the proponent of

the will must overcome the presumption that the testator destroyed or

revoked the will. Burns v. Kabboul, 595 A.2d 1153, 1167 (Pa. Super.

1991), citing In re Estate of Keiser, 560 A.2d 148, 151 (Pa. Super. 1989).

In order to overcome the presumption and establish the existence of a lost
____________________________________________


2
  The only portion of the document that was not photostatic in nature was
the notarial act.



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will, the proponent of the copy must prove that: (1) the testator duly and

properly executed the original will; (2) the contents of the will were

substantially as appears on the copy of the will presented for probate; and

(3) when the testator died, the will remained undestroyed or revoked by

him. In re Estate of Janosky, 827 A.2d 512, 519–20 (Pa. Super. 2003).

The proponent’s evidence must be positive, clear and satisfactory.      In re

Estate of Murray, 171 A.2d at 176.

     Here, the Orphans’ Court concluded that McClintock failed to prove the

second prong of the test, i.e., that the contents of the photocopied will were

substantially the same as the original document.         In arriving at this

conclusion, the court relied primarily on the testimony of two witnesses:

Detwiler, the forensic document examiner, whose testimony the court found

credible, and Lykins, the notary, whose testimony the court found not

credible. A brief summary of these witnesses’ testimony is in order.

     Dorothy Lykins is a notary from Franklin, Ohio. Lykins’ husband, Jeff,

is the owner/operator of a trucking company.      Decedent served as Jeff’s

dispatcher, acquiring loads for him to haul. Although Lykins had never met

Decedent prior to the execution of his will, she stated that she had

previously notarized documents for him. Lykins testified that, on March 22,

2015, Decedent called her husband’s cell phone and asked if Lykins could

come to Zanesville, Ohio – approximately three hours away – to notarize his

will. Lykins agreed and rode to Ohio with Jeff in his semi-truck. The couple




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met Decedent at AK Steel in Zanesville, where Jeff was also picking up a

load of steel.

      Lykins testified that she, Jeff and Decedent then drove to the parking

lot of a nearby truck stop.   Lykins stated that, by that time, it was “late

evening, early morning” and it was dark. N.T. Trial, 10/7/16, at 21. She

testified that the Decedent “held up a document and indicated that that was

his Will that he wanted me to [n]otarize for Judy.” Id. at 22. She asked

him for his driver’s license and he provided her with a state I.D.    Lykins

indicated that she was familiar with Decedent’s signature because she

deposited the checks with which Decedent paid her husband.       She stated

that she notarized the document and took a photograph of it with her cell

phone. Lykins testified that she did not actually see the Decedent write or

sign the will, but that she had seen him strike out the misspelled name of

Muskingum County and handwrite the correctly spelled name on the

document. Lykins testified that she had provided a copy of the photograph

she took of the executed will to McClintock’s counsel after Decedent’s death.

However, she had since obtained a new phone and had lost access to the

original picture.

      On     cross-examination,   Brumbaugh’s     counsel   raised    certain

discrepancies between Lykins’ in-court testimony and the affidavit she had

previously prepared for submission to the Register of Wills.         Notably,

although Lykins had testified at trial that the only word she actually

witnessed the Decedent hand-write on the will was the correction for

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Muskingum County, her affidavit stated that Decedent “complet[ed] and

sign[ed] the document in his own hand” and that “[i]mmediately prior to

signing his name he wrote the name of Judy McClintock.”             Affidavit of

Dorothy E. Lykins, 2/4/16.

       Khody Detwiler also testified.          Detwiler has been employed as a

forensic document examiner since 2008. Based upon toner particles present

on the document, Detwiler concluded that, while the notarial act contained

on the document was original, “[t]he printed text in the body of the

document as well as the signature of John Brumbaugh is a photocopy

reproduction[.]” N.T. Trial, 8/25/16, at 59-60. Detwiler also concluded that

the name “Judy McClintock” in the center portion of the document – that

portion of the document that purports to dispose of “[a]ll other money and

properties” belonging to the Decedent, see Purported Will, 3/22/15 – was

also a photocopy reproduction and not original ink. See N.T. Trial, 8/25/16,

at 61.    Detwiler noted an extraneous mark attached to the name “Judy

McClintock,” as well as “trash marks”3 surrounding the name, which can only


____________________________________________


3
 A “trash mark” or “artifact” results from repeated reproduction of a
document. Detwiler testified as follows:

       [B]asically when you have artifacts on the document, it comes
       from the copying process when the document is copied over and
       over and over and over. Again, different machines, whether or
       not it’s scanned, sent in an E-mail, and then printed out, and
       then copied again.
(Footnote Continued Next Page)


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be found in that particular portion of the document. Detwiler testified that

“if [the] document was all created at the same exact time, you would expect

those trash marks to be everywhere else as well.”       Id. at 63.   Detwiler

concluded that “having this many artifacts around that particular portion,

and nowhere else, I can’t eliminate the possibility that that didn’t come from

a separate document, and was incorporated into this document.” Id. at 65.

In other words, Detwiler could not rule out that McClintock’s name had been

cut and pasted into the document.

      Detwiler also noted peculiarities in the document’s layout.          In

particular, Detwiler testified:

      [T]he thing that really really strikes me is the very last, almost
      full line of printed text, there’s a very large void at the end of
      the line. But then when you look right beneath it, the name
      Judy McClintock is indented almost an inch, and it’s also
      squeezed right up against the bottom of the last line.

                                            ...

      If you look at – for example the vertical spacing between each
      line, it’s fairly consistent as you go up the page.
                       _______________________
(Footnote Continued)

      If it’s faxed, you’re going to pick up marks. You’re going to pick
      up marks from the machine, whether or not there’s a mark on
      the drum, a mark on the glass. That they get put on the
      document, and then they get copied again over and over and
      over.

      The other thing that can create trash marks is if the document
      isn’t perfectly flat on the glass when you’re making a photocopy.

N.T. Trial, 8/25/16, at 64.




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J-A18027-17


        But it’s not consistent here between the name Judy McClintock
        and the last full line. Now if you look at the left and right
        margins. Again, you see that the writer goes essentially the
        whole way from the left to the right. And every single sentence,
        except for the last one, they stop short. And then all of a
        sudden the Judy McClintock name, is indented almost an inch.
        And then it’s just the name squeezed in.

Id. at 70, 72.

        Detwiler further testified that the correction of the spelling of

Muskingum County was also a photocopy reproduction and not originally

written on the paper. Detwiler concluded this based on the fact that “there’s

no bleed through on the back of the document which you would expect to

find.     There’s no impressions or indentations here [under the word

“Muskingum”], but you can feel them [w]here there is original writing.” N.T.

Trial, 10/7/16, at 109.     Detwiler also noted toner deposits around the

corrected word “Muskingum.” Detwiler concluded that he “[a]bsolutely” had

questions about the validity of the document. N.T. Trial, 8/25/16, at 73.

        McClintock concedes that the will is a copy. However, she speculates

that the Decedent, himself, “made a copy, either at the steel company site

or at the convenience store, of the original document first shown at the steel

site to [Lykins], and that he substituted the photocopy for the original as a

less messy and clearer representation of his Will for her to notarize[.]” Brief

of Appellant, at 8. McClintock argues that Detwiler, the document examiner,

“did not testify that any ‘doctoring’ had in fact occurred in reproducing the

document from the original.” Id. at 11 (emphasis in original).




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J-A18027-17



      McClintock asserts that this matter is controlled by our Supreme

Court’s decision in Estate of Ervien, 233 A.2d 887 (Pa. 1967). There, the

decedent and her husband executed wills on the same day with virtually

identical dispositive provisions.   Decedent’s husband predeceased her,

leaving her his share of his family business, which in turn formed the bulk of

decedent’s estate upon her own death. Prior to her death, and in the course

of moving from her house to an apartment, decedent, who had weak

eyesight and was extremely careless about her personal effects, had gone

through her personal papers and disposed of a great deal of trash. Following

her death, an unsigned copy of her will was located in an envelope also

containing an unsigned copy of her husband’s will, her apartment lease, and

other printed material given to her by her landlord.      The envelope was

addressed to her brother-in-law, whose daughter and grandson were the

beneficiaries of decedent’s will. The envelope was found in a desk drawer on

which decedent’s brother-in-law had placed a lock to help decedent

“preserve her things from her carelessness.”       Id. at 889 (Roberts, J.,

dissenting).

      Following the decedent’s death, the Register of Wills of Montgomery

County refused to probate the unsigned copy of the decedent’s will. After a

hearing de novo, the Orphans’ Court reversed and ordered that the




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J-A18027-17



document be admitted to probate.               The lower court’s reasoning was

summarized by Justice Roberts in his dissent4 as follows:

       From the fact that no less than a year before her death
       [decedent] placed the unsigned copy of her will in the same
       envelope with a copy of her husband’s will and with her lease,
       the orphans’ court concluded that she deemed it of great value
       at that time.      Then the court proceeded to reason that
       [decedent] could hardly have considered the copy of her will to
       be of value if she had destroyed the original [a]nimo revocandi.
       In addition, the opinion of the court seems to suggest that
       [decedent’s] poor eyesight, carelessness and moving explain the
       absence of the will from her effects and that the source of her
       property[, i.e., her husband’s family business,] the situation in
       which she made her will[, i.e., at the same time as her husband
       and with virtually identical dispositive provisions,] and her
       relationship to [her brother-in-law] make it unlikely that she
       would have deliberately acted to prevent her estate from passing
       to [her brother-in-law’s] descendants.

Id.    The Supreme Court, without explication, affirmed the decision of the

Orphans’ Court.

       McClintock analogizes the instant matter to Ervien, as she testified to

having found the purported will with Decedent’s other valuable papers.

McClintock asserts:

       The same question asked in Ervien should be asked in this case.
       If [Decedent] destroyed the original of his Will with the intent of
       revoking it, why would he have preserved the document at issue
       for more than 7½ months after its notarization until his death?
       Like the decedent in Ervien, he kept it together with other
       financial items in one contained enclosure which he carried with
____________________________________________


4
  The majority’s brief opinion discusses neither the evidence adduced in the
Orphans’ Court nor the applicable law. Rather, the Court simply noted its
review of the record and concluded there was no abuse of discretion by the
lower court. Accordingly, we rely on the facts recited in the dissent.



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J-A18027-17


          him in going from location to location. In this case, unlike in
          Ervien, those other items were current by their very nature,
          i.e. his checkbook with blank checks and registers. Why should
          the document at issue be assigned any different character as to
          its nature?

Brief of Appellant, at 21 (emphasis in original).

          This argument, however, misses the mark. In particular, it assumes

that the Orphans’ Court found credible McClintock’s claim that she

discovered the alleged will with Decedent’s other important documents.

Indeed, the court found just the opposite:

          I understand that Ms. McClintock’s testimony that she found the
          will with the decedent’s other important documents is important
          evidence and I do consider that. But I do not find it to be
          especially credible given the other circumstances
          surrounding the will[.]

N.T. Findings of Fact and Conclusions of Law, 12/21/16, at 12. Based upon

the foregoing, it is apparent that the court did not, in fact, believe that

McClintock discovered the photocopied document amongst the Decedent’s

important papers, and, thus, the holding in Ervien garners McClintock no

relief.

          McClintock also argues that the court erred in relying on document

examiner Detwiler’s testimony to conclude that the document in question

was doctored or fraudulently altered.          McClintock asserts that, in fact,

Detwiler testified that his examination was “inconclusive” as to whether the

document had been altered. This argument mischaracterizes both Detwiler’s

testimony and the burden of proof applicable to McClintock in this matter.




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         In order to probate a copy of a lost will, the proponent must overcome

the presumption that the testator destroyed or revoked the will by positive,

clear and satisfactory evidence. Estate of Murray, supra. While Detwiler

did testify that his examination of the document was inconclusive, it does

not follow that the trial court committed error by relying on his testimony to

conclude that the burden as to the second prong of that test – that the

contents of Decedent’s will were substantially as appears on the copy of the

will presented for probate – had not been met.            Detwiler testified that,

because the document he examined was a photocopy, he could not

conclusively determine the significance of the various anomalies within the

document without examining the original.          See N.T. Trial, 8/25/16, at 92.

In other words, by the very nature of the only available document, a

definitive conclusion as to its authenticity was impossible.            However,

Detwiler did point out numerous anomalies, such as isolated trash marks

and toner particles, the presence of white-out, and the inconsistent spacing

of Judy McClintock’s name, which raised serious questions as to the

document’s authenticity. On this basis, the Orphans’ Court was well within

its discretion to conclude that McClintock did not meet her heavy burden of

proof.

         Finally, we briefly address McClintock’s argument regarding the

testimony of Dorothy Lykins.       As noted above, the Orphans’ Court found

Lykins to be an incredible witness.            McClintock challenges the court’s

credibility assessment as follows:

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         As not only the Notary Public but also the Chief Clerk of the City
         of Franklin Municipal Court for the State of Ohio, Dorothy Lykins
         is an authority figure whose word/testimony is to be and should
         be respected. There is nothing in the record to indicate anything
         that would or could have biased or impeached her testimony on
         these key facts.      Therefore, even if her Affidavit was not
         completely in line with her testimony, that is of no significance
         whatsoever.

Brief of Appellant, at 26.

         The notion that Lykins’ testimony is not to be questioned because of

her status as a public official is both dangerous and absurd and, as such,

may be dismissed out of hand. The testimony of an elected official in a court

of law is entitled to no greater presumption of credibility than that of any

other citizen; to suggest otherwise is to begin a journey down a slippery

slope.

         In sum, the Orphans’ Court’s decision in this matter was based largely

on credibility determinations which, based upon our review, are clearly

supported in the record.      Nalaschi, supra.    Moreover, we can discern no

error of law in the court’s conclusion that McClintock failed to establish by

positive, clear and satisfactory evidence, Murray, supra, that the contents

of Decedent’s will were substantially as appeared on the photocopied

document presented for probate. Janosky, supra. Accordingly, we affirm

the order of the Orphans’ Court.

         Order affirmed.




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J-A18027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2017




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