J-S58020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: HOWARD F. MILLER, DECEASED,              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee



APPEAL OF: GEOFFREY G. MILLER AND
HUNTLEY H. MILLER

                                                     No. 312 MDA 2017


             Appeal from the Order Entered January 19, 2017
           In the Court of Common Pleas of Cumberland County
                   Orphans' Court at No(s): 21-14-0822


BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                      FILED NOVEMBER 06, 2017

     Geoffrey G. Miller (“Geoff”) and Huntley H. Miller (“Chet”) (collectively,

“the brothers”) appeal the order granting the petition filed by Renee E.

Andwood (“Renee”) and Karen M. Blackbird (“Karen”) (collectively, “the

sisters”). We reverse.

     The parties entered a Joint Stipulation of Facts (“stipulated facts”):

     A. BACKGROUND FACTS

     1.   Prior to August 18, 2008, Howard F. Miller and Marguerite E.
          Miller owned, as husband and wife, a parcel of real estate,
          consisting of approximately 135 acres in Dickinson
          Township, Cumberland County, commonly referred to as
          134 N. Dickinson School Road, Carlisle, Pennsylvania, on
          which they had their family homestead (“Miller Family
          Homestead”).

     2.   By Deed dated August 18, 2008, Howard F. Miller (“Father”)
          and Marguerite E. Miller (“Mother”) transferred the Miller
J-S58020-17


          Family Homestead to themselves and to their four children,
          Geoffrey G. Miller (“Geoff”); Huntley H. Miller (“Chet”);
          Renee E. Andwood (“Renee”) and Karen M. Blackbird
          (“Karen”) as joint tenants with right of survivorship.

     3.   The August 18, 2008 Deed was signed by Geoff on behalf of
          Father and by Chet on behalf of Mother, both as Powers of
          Attorneys (“POAs”) for each respective Grantor.

     4.   On March 26, 2009, Father executed a new Power of
          Attorney (“POA”) prepared by Hazen Elder Law, whereby
          Father appointed Geoff, Chet and Karen [as] his POAs to act
          “jointly or individually” as his co-agents.

     5.   On November 9, 2011, Father executed another Power of
          Attorney prepared by Hazen Elder Law, naming all four (4)
          siblings as co-agents.

     6.   Mother passed away on June 25, 2011.

     7.   At the time that Mother passed away, Father and Mother
          had joint (husband and wife) accounts at both M&T Bank
          and Citizens Bank. M&T Bank had a money market account.
          Citizens Bank had checking, savings and Certificates of
          Deposit.

     8.   Upon Mother’s death, Father received and [sic] annuity
          worth approximately $187,000.00, for which Geoff, as
          Father’s POA, accepted the death benefit from Trans
          America Insurance Company, opened an account at M&T
          Bank in Father’s name only and deposited the policy
          proceeds into said account, which was in Father’s name
          even at the time of his death.

     9.   Father died on August 21, 2014 leaving a Will dated May 9,
          2009....

     10. Father’s May 9, 2009 Will was admitted to probate on
         September 3, 2014 and Geoff and Chet were granted Letters
         Testamentary on that same date.

     11. At the time of Father’s death, on August 21, 2014, the value
         of the account funded with Mother’s annuity was
         $188,419.63, which amount was transferred on September

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          10, 2014, by Co-Executor, Geoff Miller into the Howard
          Miller Estate Account . . . at M&T Bank (“Estate Account”).

     B.   MILLER FAMILY HOMESTEAD FARMING OPERATION

     12. Father and Geoff had farmed the Miller Family Homestead
         together since 1997, when Geoff retired from the
         Pennsylvania State Police.

     13. Chet joined Father and Geoff to farm the Miller Family
         Homestead in 2009 after Chet retired from Fry
         Communications in Mechanicsburg, Pennsylvania.

     14. Once Chet and Geoff joined Father’s farm business, the
         Millers ([Father], Chet and Geoff) farmed the Miller Family
         Homestead in conjunction with a local farmer, Mr. Widders.
         Among other expenses, the Millers provided the land, the
         seed, the fertilizer and paid to truck the produce to market
         and Mr. Widders supplied the farm equipment and the
         manpower to operate it (“Farming Operation”).

     15. Revenues from the Farming Operation where historically
         deposited into Father’s and Mother’s joint checking account
         at Citizens Bank and Farming Operation expenses were
         historically paid from the same account, with Father and
         Mother itemizing the Farming Operation as Schedule “F” on
         their personal income tax returns.

     16. In or around February 2012, (after Mother’s passing) certain
         Certificates of Deposit (“CDs”), having a value of about
         $70,000, in Father’s account at Citizens Bank, were due to
         soon mature.

     17. Father’s Citizens Bank account was the account into which
         Father’s Social Security and retirement were automatically
         deposited monthly.

     18. In February 2012, Geoff as Father’s POA, took $70,000.00
         from the maturing CDs and $30,000.00 from Father’s
         Citizens Bank account and opened an account at M&T Bank
         for the Farming Operation (“Farm Account”).

     19. Geoff and Chet assert that Father agreed to open the Farm
         Account so that Geoff and Chet could continue the Farming

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         Operation after his death as it had been conducted for
         years. Karen and Renee disagree with this assertion.

     20. Said Farm Account had both a “Power Money Market”
         component, . . . and a “My Choice Premium Checking”
         component. . . .

     21. The Farm Account was opened with a deposit of
         $100,000.00 on February 8, 2012 as a joint account with
         right of survivorship between Father, Geoff and Chet.

     22. Geoff signed as POA for Father to open the Farm Account
         since Father was residing with his Daughter Karen, in
         Elizabethtown at the time the Farm Account was opened
         because the siblings did not want Father living in the
         Homestead during the winter by himself.

     23. After Father’s death on August 21, 2014, the Farm Account
         was retitled to Geoff and Chet as joint tenants with right of
         survivorship.

     24. Once the Miller Family Homestead was transferred in 2008
         to Father, Mother and the four siblings (Geoff, Chet, Renee
         and Karen), the four siblings all agree that each was initially
         legally responsible for 1/5 of all real estate taxes,
         insurances, maintenance, upkeep and repairs for the Miller
         Family Homestead and once Father and Mother passed
         away, that the four (4) siblings were legally responsible to
         share equally (1/4 each) those same expenses/types of
         expenses.

     25. Starting on November 1, 2011, after Mother had passed
         away, Father gifted equally $6000 to each sibling from the
         Citizens Bank Account.

     26. On May 30, 2012, Father gifted another $6000 to each of
         the four siblings from his Citizens Bank Account, totaling
         gifts of $48,000.

     27. In 2013, Father again expressed his desire to make
         additional gifts of $6000 each to the four siblings.

     28. In 2013 and 2014, Father, through Geoff, gifted to Geoff,
         Chet, Karen and Renee gifts from the Farm Account, rather

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         than from the Citizens Bank Account to avoid depleting the
         Citizen’s Bank account from which expenses for Father’s
         care were being paid. The gifts to each sibling totaled
         $12,000.00.

     29. Although the Farm Account was titled jointly with right of
         survivorship between Father, Geoff and Chet, the Co-
         Executors, transferred 1/3 of the date of death value
         ($23,840.58) of the Farm Account to Father’s Estate
         Account on September 24, 2014.

     30. The $23,840.58 deposited from the Farm Account into the
         Estate Checking Account on September 24, 2014 was
         comprised of a $10,181.65 withdrawal from the Farm
         Account Money Market and a $13,648.93 withdrawal from
         the farm Checking Account (total $23,840.48) for which
         M&T issued a bank check . . . to transfer the money to the
         Estate Checking account.    All of these transactions are
         documented on the true and correct Farm Account
         Statements from M&T Bank, dated September 9, 2014 to
         October 8, 2014.

     31. The date of death value of the Farm account was
         $71,522.35 reflecting $40,976.65 in the checking account
         and $30,545.70 in the money market account.

     32. In 2015, the siblings executed a Deed dated December 8,
         2015, by which ownership of the Miller Family Homestead
         was changed to tenants in common among the four (4)
         siblings, rather than joint tenants with right of survivorship.

     33. By mutual agreement, the partition action filed by Karen
         and Renee, docketed in the Cumberland County Court of
         Common Pleas, at docket number 2016-00486-Civil has
         been indefinitely stayed and the parties have agreed to
         amicably partition the Miller Family Homestead.

     34. On October 31, 2016, Geoff wrote check #125 to transfer
         $23,840.38 from Father’s Estate Account to be held in
         escrow by the Law Offices of Peter J. Russo, P.C. until such
         time as ownership of the Farm Account (from which the
         $23,840.38 had been transferred into Fathers’ [sic] Estate
         checking account) has been resolved.


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      35. Several distributions from Father’s Estate checking account
          have been made to the beneficiaries by the Co-Executors.
          Such distributions are:

      a.   Checks #0108, 0107, 0105 and 0106 all for $20,000.00
           each, payable to the four (4) siblings in September 2014;
           and

      b.   Checks #0134, 0133, 0132, and 0131 all for $25,000.00
           made payable to Geoff, [Chet], Karen and Renee
           respectively in December 2014.

      36. Geoff filed the original Revenue 1500 for Father’s Estate....

      37. Geoff filed a Supplemental Revenue 1500 for Father’s Estate
          dated July 28, 2015....

      38. Geoff filed a second Supplemental Revenue 1500 for
          Father’s Estate dated February 4, 2016....

      39. The Pennsylvania Department of Revenue accepted “as
          filed” the February 4, 2016, Revenue 1500 on July 1, 2016,
          as a result of which the estate had a credit of $817.52.

      40. Geoff filed a third Supplemental Revenue 1500 for Father’s
          Estate dated October 26, 2016, and paid tax due of
          $6,944.98 (after taking the $817.52 credit), as a result of
          losing the farming exemption since the siblings have agreed
          that the Miller Family Homestead is to be partitioned.

      41. From 2008 forward, Mother and Father were represented by
          Hazen Law, a law firm that focuses on elder law, which firm
          was selected by Karen.

      42. All of the siblings participated (in person or by conference
          call) in all of the meetings between Father, Mother and
          estate planning counsel.

Stipulated Facts, 12/30/16 (internal citations omitted).

      The sisters filed a “Petition to Show Cause Why an Account Should Not

Be Filed in Accordance with 20 Pa. C.S.A. §3501.1” (“Petition”), averring


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that the brothers opened a joint account (“Farm Account”) with Father that

should be included in Father’s estate. Petition, 1/27/16, at ¶¶ 6, 7. With

leave of court, the brothers filed an answer nunc pro tunc (“Answer”),

asserting they own the Farm Account through statutory survivorship.

Answer, 3/14/16, at ¶¶ 6, 7.

       Upon consideration of the Petition, the Answer, and submitted legal

memoranda, the orphans’ court granted the Petition and ordered that the

brothers “are to file an accounting with the Farm Account . . . being included

as part of [Father’s] estate, and that the Farm Account will not transfer to

Geoff and Chet as joint tenants with right of survivorship.”        Opinion and

Order, 1/19/17, at 7.1 This appeal followed. The brothers and the orphans’

court have complied with Pa.R.A.P. 1925.

       The brothers state the following questions for our consideration:

       1. Did the Orphans’ Court err by failing to consider the Multi-
          Party Account[s] Act, 20 Pa.C.S.A. § 6301 et seq., (“MPAA”),
          and the Pennsylvania Supreme Court’s Decision In re
          Novosielski Estate, 605 Pa. 508, 992 A.2d 89 (2010) when
          deciding ownership of the jointly owned M&T Bank Account
          Nos. 15004225781639 and 9856467452 (known as the Farm
          Account)?

       2. Assuming, arguendo, that the MPAA and Novosielski, supra,
          are not controlling, did the [c]ourt err by failing to conduct
          any analysis whether the alleged “gift” of the initial deposit of
____________________________________________


1 We have jurisdiction over this appeal pursuant to Pa.R.A.P. 342(a)(6) (“An
appeal may be taken as of right from the following orders of the Orphans’
Court Division: . . . (6) An order determining an interest in real or personal
property....”).



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        $100,000.00 met the requirements for an “intervivos gift” by
        [Father] or the Co-Executors?

     3. Did the Orphans’ Court err by holding, “The establishment of
        the Farm Account must fail, even if it is not a gift, as an
        improper commingling of assets, and not reflective of Father’s
        intent,” when that conclusion is not supported by the only
        facts of record (the JSF) [Jointly Stipulated Facts], by citation
        to any applicable legal authority, by applicable precedent of
        the MPAA and Novosielski, supra and/or by the entirety of the
        language of the 2011 POA or [Father’s] Will?

     4. Did the [c]ourt err by drawing inferences and factual
        conclusions that were not supported by the Jointly Stipulated
        Facts, which constituted the only record before the Court?


     5. Did the [c]ourt err by failing to analyze the relevant
        provisions of Father’s Will in conjunction with the holding in
        Novosielski, supra and the MPAA and by ignoring other
        provisions of Father’s 2011 POA and his Will that further
        demonstrated Father’s intent respecting the jointly owned
        Farm Account and the Farming Operation?

     6. Did the Orphans’ Court err by ordering an accounting as no
        party had requested that relief when the [c]ourt was asked to
        decide the sole question of the ownership of the jointly owned
        Farm Account and by so [o]rdering, the Orphans’ Court
        imposed unintended and potentially adverse consequences
        upon [Father’s] Estate (this error is currently mooted by entry
        of the Orphans’ Court Order dated March 15, 2017 which
        rescinded that portion of the January 19, 2017 Order that
        directed the [brothers] to file an accounting, provided that
        the Orphans’ Court retained jurisdiction to enter said
        March 15, 2017 Order)?1

           1 This issue is being preserved in the event that the
           Superior Court would hold that the Orphans’ Court
           lacked jurisdiction to enter the March 15, 2017
           Order.      But to conserve private and judicial
           resources, it is not briefed herein as it is currently
           moot, unless resurrected by the Superior Court, in
           which case the [brothers] will brief (or argue) the
           issue, if requested to do so by the Superior Court.


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The Brothers’ Brief at 5–7 (reordered for ease of disposition).2

       Our standard of review from a final order of the orphans’ court is

deferential:

       We accord the findings of the Orphans’ Court, sitting without a
       jury, the same weight and effect as the verdict of a jury; we will
       not disturb those findings absent manifest error; as an appellate
       court we can modify an Orphans’ Court decree only if the
       findings upon which the decree rests are not supported 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.

             Moreover, we will not reverse the Orphans’ Court’s
       credibility determinations absent an abuse of the court’s
       discretion as factfinder. On the other hand, we are not required
       to give the same deference to the Orphans’ Court’s legal
       conclusions. Where the rules of law on which the Orphans’ Court
       relied are palpably wrong or clearly inapplicable, we will reverse
       the court’s decree.

Estate of Edward Winslow Taylor Inter Vivos Tr., ___ A.3d. ___, 2017

PA Super 275, *5 (Pa. Super. filed Aug. 23, 2017) (quoting In re Trust of

Hirt, 832 A.2d 438, 447 (Pa. Super. 2003) (citations, quotation marks, and

some brackets omitted)); In re Fiedler, 132 A.3d 1010 (Pa. Super. 2016)

(en banc), appeal denied, 145 A.3d 166 (Pa. 2016).


____________________________________________


2  We note that the brothers’ brief does not comport with our rules of
appellate procedure in that the argument section is not “divided into as
many parts as there are questions to be argued.” Pa.R.A.P. 2119(a).
Because this defect does not substantially hamper our review, we shall
address the issues presented in our discussion. However, the orphans’ court
did not address and the parties did not brief the brothers’ final issue;
therefore, we decline to conduct any analysis of it.



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       The brothers’ first issue focuses on the orphans’ court’s treatment of

the Multi-Party Accounts Act (“MPAA”), 20 Pa.C.S. §§ 6301–6306, and In re

Novosielski Estate, 992 A.2d 89 (Pa. 2010), in determining ownership of

the Farm Account.          The MPAA provisions are “applicable solely to the

determination of property rights among parties in regard to multiple-party

accounts.”     20 Pa.C.S. § 6302.        Interpreting the MPAA, the Pennsylvania

Supreme Court ruled in Novosielski, “The MPAA rather clearly evidences a

legislative intent that, except when the instrument explicitly provides to the

contrary or in the unusual case based on a heightened degree of evidence,

individuals and institutions may safely rely upon the presumed right of

survivorship of MPAA joint accounts.” Novosielski, 992 A.2d at 91.3

       The orphans’ court did not discuss either authority in its January 19,

2017 opinion. In its supplemental opinion, the orphans’ court stated:

       [The brothers] argue that the [c]ourt erred in failing to analyze
       or apply the [MPAA], 20 Pa. C.S. §6301, or the Pennsylvania
       Supreme Court decision in In re Alice Novosielski, 992 A.2d 89
       (Pa. 2010)…. While the [c]ourt did not directly address either
       the MPAA or the Novosielski opinion, the [c]ourt does not believe
       that either is applicable to the present case. As noted in our
       January 19, 2017 opinion, we determined that the Power of
       Attorney is controlling, and the initial transfer of funds to the
       Farm Account was invalid, regardless of whether the transfer
       was or was not a gift; as a result, the holding of Novosielski is
       inapposite to the instant case.
____________________________________________


3 Applying the MPAA, the Novosielski Court ruled that a testatrix’s will was
not per se clear and convincing evidence that the testatrix had not intended
to create a right of survivorship in a multiple party account. Novosielski,
992 A.2d at 107.



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Orphans’ Court Supplemental Opinion, 5/3/17, at 2. In sum, the orphans’

court concluded that the Farm Account was not a legally created joint

account; therefore, it declined to apply the MPAA and Novosielski.

      Asserting that creation of the Farm Account was authorized under

Father’s 2011 power of attorney (“the 2011 POA”), the brothers argue that

the orphans’ court erred in failing to begin its analysis with consideration of

the MPAA, “if for no other reason, than to establish who bore the burden of

proving” ownership of the Farm Account and “by what standard.”             The

Brothers’ Brief at 28.    According to the brothers, the MPAA creates a

presumption of survivorship in their favor that “can be overcome only by

clear and convincing evidence of contrary intent. The burden of establishing

a contrary intent is on the party who opposes the presumption of

survivorship.” Id. at 29 (citing In re Estate of Meyers, 642 A.2d 525, 528

(Pa. Super. 1994)). The brothers complain that the orphans’ court “never

discussed the burden of proof required by the MPAA and, therefore, never

analyzed whether the [s]isters had met the burden that was undoubtedly

theirs according to the Statute….” Id. at 30.

      In response, the sisters argue that the orphans’ court properly began

its analysis by examining the scope of powers Father granted his agents

under the 2011 POA to determine if the Farm Account was legally created.

The Sisters’ Brief at 9. The sisters assert that, in analyzing the 2011 POA,

the orphans’ court properly found that the brothers acted without authority


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in opening the Farm account. Id. at 13–17. Thus, the sisters contend that

“a joint account was never created and the Orphans’ Court correctly

concluded that consideration of the MPAA and Novosielski was inapplicable.”

Id. at 17.

      Upon review of the certified record, the MPAA, and Novosielski, we

discern no error in the orphans’ court’s analytical starting point. Common

sense dictates that ownership of a joint account is dependent on the

legitimate creation of a joint account.       Indeed, application of the MPAA

presumes a legitimately created joint account. See Novosielski, 992 A.2d

at 105–106 (explaining that a legitimately created joint account carries

the statutory presumption of survivorship unless negated by the form of the

account); see also In re Estate of Cella, 12 A.3d 374, 380 (Pa. Super.

2010) (quoting Novosielski). Also, Novosielski concerned the ownership

of a legitimately created joint account, not the validity of a joint account.

      The legitimate creation of the Farm Account depended on the scope of

powers authorized by the 2011 POA.         Thus, we approve of the orphans’

court first reviewing the 2011 POA to determine if the brothers had authority

thereunder to open the Farm Account. In light of the orphans’ court’s ruling

that the Farm Account was not a legitimately created joint account, we

discern no abuse of discretion or error of law in the orphans’ court’s initial

rejection of the brothers’ MPAA- and Novosielski-based arguments.




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         The brothers also attack—as “further reversible error”—the orphans’

court’s principal holding that the initial transfer of funds into the Farm

Account was invalid under the 2011 POA.            The Brothers’ Brief at 31–53.

According to the brothers, they had authority under the 2011 POA to open

the Farm Account, and therefore they own it by operation of the MPAA. Id.

at 55.

         Noting that powers of attorney are to be strictly construed, the

orphans’ court held as follows:

                In the present case, Section 5 of the [POA] states the
         siblings as co-agents have the power to “open and close
         checking, savings, transaction or other deposit accounts in
         Father’s name.”      Exhibit C to Joint Stipulations, Section 5.
         Section 22 of the [POA] states that “my Agents must act
         jointly, not individually, for all gifting.” Exhibit C to Joint
         Stipulations, Section 22 (emphasis in original).      Section 23
         further states that “my Agent and the donee of the gift shall be
         responsible as equity and justice may require to the extent that
         a gift made by my agent is inconsistent with my directions and
         planning of my probable intent with respect to the disposition of
         my estate.”      Id.   Finally, Section 22 waives the general
         requirement that assets may not be commingled between the
         principal and co-agent, by stating “I specifically and
         expressly waive any requirements in effect now and in the
         future to have my assets kept separate from my Agent’s
         assets.” Id. (Emphasis in original).

                We agree with Karen and Renee that Geoff and Chet acted
         without legal authority under the [2011 POA] to open the Farm
         Account as a joint tenancy with right of survivorship. Ultimately,
         we conclude that it does not matter for purposes of this case
         whether or not the transfer of funds was a gift or not. If it was a
         gift, then all four siblings were required to agree to the transfer.
         Geoff and Chet contend that Karen and Renee did not dispute
         the opening of the account at that time and later received gifts
         from the account, thereby implicitly agreeing. However, neither
         the receipt of money from the account nor lack of protest does

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     not indicate acquiescence in this case. There are many reasons
     why Karen and Renee may not have objected at the time of the
     account’s creation. For example, they may not have understood
     the implications of the joint tenancy or that Father intended the
     transfer to be a gift and not merely a means to keep Father’s
     care expenses separate from farm expenses. The [2011 POA]
     states that the siblings must unanimously agree to a transaction
     involving a gift. The burden therefore is on Geoff and Chet to
     show that there was unanimous agreement, which, given Karen
     and Renee’s objections, is not the case involving the Farm
     Account. The transfer must fail if it is considered a gift due to
     lack of unanimous consent.

            If the transfer was not a gift, then the money was required
     to be kept separate as the [2011 POA] does not permit the
     commingling of assets between Father and the siblings, with the
     sole exception of a gift.        The waiver of the commingling
     requirement is contained within Section 22 of the [2011 POA],
     which concerns gifts, but is not mentioned elsewhere. Moreover,
     the acknowledgement of the [2011 POA] signed by each sibling
     states that “I shall keep the assets of the principal separate from
     my assets (except where a gift of assets may be titled jointly in
     the names of Principal and Agent).” Exhibit C to [Stipulated
     Facts], Acknowledgement (emphasis added).                 The only
     reasonable interpretation of these two provisions, read together
     to give effect to both, is that the waiver is limited to gifts and is
     inapplicable to other types of transactions. Father may have
     wished to give the money to Geoff and Chet so that they could
     continue operating the farm upon Father’s death. If this was in
     fact true, then Father should have amended his will to reflect
     this intent. If the intention was to separate farm expenses and
     revenue from Father’s day-to-day care expenses, then the
     account should have been created in just Father’s name. In that
     event, the siblings, with the [2011 POA], would have had the
     power to draw upon these funds as needed pursuant to Section
     5 of the [2011 POA]. The clearest evidence of Father’s intent is
     that he wanted all four siblings to agree as to the disposition of
     his estate, which was not done with the Farm Account. The
     establishment of the Farm Account must fail, even if it is not
     considered a gift, as an improper commingling of assets, and not
     reflective of Father’s intent.

          Consequently, we conclude that the establishment of the
     Farm Account was done without authorization under the [2011

                                    - 14 -
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      POA], and therefore the transfer was invalid. The money in the
      account should properly be considered as part of Father’s estate
      and should not have transferred to Geoff and Chet as joint
      tenants with the right of survivorship upon Father’s death.

Orphans’ Court Opinion, 1/19/17, at 5–6, 7.

      In challenging the orphans’ court’s conclusion, the brothers raise

multiple arguments. They complain that the orphans’ court did not consider

whether the initial $100,000.00 deposit into the Farm Account was an inter

vivos gift. The Brothers’ Brief at 51. The brothers further argue that:

      the 2011 POA expressly granted very broad powers to Father’s
      Co-Agents to “act jointly or individually. . .to transact all my
      business and to manage all my affairs as completely as . . . I
      myself might do, if personally present, including but not limited
      to, exercising the following powers contained in this document.
      That general grant of power was further expounded upon by
      [Father] in paragraph 27 of the 2011 POA, which provides in
      pertinent part, “The enumeration of the specific powers
      conferred herein shall not be deemed to exclude herein any
      other power, it being my purpose and intent to give my Agent
      power to do any and all things on my behalf as I could do
      myself”. Obviously, Father could have opened the Farm Account
      himself.

Id. at 32 (emphasis and citations omitted). Additionally, the brothers point

out that only the “gifting” provision of the 2011 POA requires all four co-

agents to act jointly.     Id.    They emphasize that the orphans’ court

“discussed none of the broad grants of power given by [Father],” which

“violates the principle that ‘strict construction of powers of attorney does not

militate against the existence of broad discretionary powers.’”      Id. at 33

(citing Nuzum v. Spriggs, 55 A.2d 402 (Pa. 1947)).




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       The brothers also claim that the orphans’ court failed to consider

additional provisions of the 2011 POA as determinative of Geoff’s authority

to open the Farm Account.            The Brothers’ Brief at 33–35 (citing ¶ 27,

Conflicts of Interest and Waiver of Confidentiality; ¶ 14, Execution of

Documents; ¶ 16, Receipts and Approvals of Accounts; and ¶ 20, Designate

Beneficiaries).      Moreover, the        brothers   contend,   the   orphans’ court

“improperly amended the language of the [2011] POA,” by including a

requirement that “a bank account could be opened ONLY in [Father’s]

name.” Id. at 35.4

       Furthermore, the brothers challenge the orphans’ court’s reasoning

that “the establishment of the Farm Account must fail, even if it is not

considered a gift, as an improper commingling of assets and not reflective of

Father’s intent.”     Id. at 41.      Relying on Novosielski and the stipulated

facts, the brothers contend that Father’s testamentary intent was fulfilled in

that (1) the bulk of Father’s estate was distributed prior to his death by

gifting and deeding the family homestead to the siblings, and (2) the

residuary of Father’s estate was distributed to the siblings pursuant to his

will shortly after his death. “But, like the decedent in Novosielski, [Father]

was certainly entitled to decide that the Farm Account should go to Geoff
____________________________________________


4  We note that, in the remainder of the brothers’ arguments, they discuss
the MPAA and other factors related to ownership of the Farm Account, not
their authority under the 2011 POA to open the account. The Brothers’ Brief
at 36–41. Thus, that discussion is not germane to the issue at hand.



                                          - 16 -
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and Chet upon his death, as they had operated the family Farming Operation

with him for many years.” Id. at 50.

      In contrast, the sisters start with the premise that the initial

$100,000.00 deposit was a gift and a commingling of funds.        The Sisters’

Brief at 11, 13. They rely on the “very specific, consistent limiting language”

of the 2011 POA in support of their position that “there is no authorization in

the [2011 POA] for the titling of assets jointly in the name of Principal and

Agent.” Id. at 13. The sisters argue that Geoff was not authorized to open

the Farm Account because he “acted individually and not jointly with the

other agents,” in violation of the gifting provision.   Id. at 14 (citing 2011

POA, 11/9/11, at ¶ 22).     The sisters also urge that the Farm Account is

inconsistent with Father’s “probable intent with respect to the disposition of

his estate,” because, “[i]n all matters he treated all four of his children

equally.”   Id. at 14–15 (internal quotation marks and original brackets

omitted). Lastly, the sisters argue that Paragraph 5 of the 2011 POA “did

not give authority to Geoff and Chet to open the Farm Account. [Paragraph

5] authorizes an agent to open an account ‘in my name.’           It does not

authorize the opening of an account in [Father’s] name with others....” Id.

at 16–17.

      Upon review, we conclude that the brothers’ arguments warrant relief.

The orphans’ court proposed that the initial $100,000 deposit would be

invalid as a gift to the brothers.   However, as the brothers observe, the


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orphans’ court conducted no analysis regarding the elements of an inter

vivos gift.5 The Brothers’ Brief at 51–54; Orphans’ Court Opinion, 1/19/17,

at 4–7.    Moreover, the record provides no basis for invalidating the Farm

Account under the gifting provision of the 2011 POA.

       The stipulated facts and supporting documentation indicate the

following: Father and Geoff had farmed the Miller Homestead together since

1997, and Chet joined them in 2009. Stipulated Facts, 12/30/16, at ¶¶ 12,

13.    After Mother passed and while Father was residing with Karen in

Elizabethtown, Geoff opened the Farm Account as Father’s agent, in Father’s

name, with Father’s funds. Id. at ¶¶ 16, 18, 22, and Exhibit G. The Farm

Account was opened “for the Farming Operation.” Id. at ¶ 18. Father gifted

the bulk of his personal assets equally to his four children on November 1,

2011, and in 2013 and 2014; those assets included the Miller Homestead

and funds in Father’s Citizens Bank Account. Id. at ¶¶ 24, 25, 26, 27, 28,

and Exhibits I, K, and M.         Moreover, as co-executors, the brothers made

____________________________________________


5   We have explained that:

       [a] valid inter vivos gift requires donative intent, delivery, and
       acceptance. There must be evidence of an intention to make a
       gift accompanied by delivery, actual or constructive, of a nature
       sufficient not only to divest the donor of all dominion over the
       property, but to invest the donee with complete control.

In re Estate of Moskowitz, 115 A.3d 372, 386 (Pa. Super. 2015), appeal
denied, 130 A.3d 1291 (Pa. 2015) (internal quotation marks, brackets, and
citations omitted).



                                          - 18 -
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several distributions from Father’s estate to the siblings. Id. at ¶ 35. This

evidence gives rise to a reasonable inference that Father distributed the bulk

of his assets equally to his children through gifting and his will, but intended

the brothers to use the Farm Account after his death for maintaining and

continuing the family business they had been operating with Father for

years.

      Next, we address the orphans’ court’s implicit suggestion that the

2011 POA restricted the type of bank account Father’s agent could open.

The Pennsylvania Supreme Court has instructed:

      [P]owers of attorney are strictly construed and the grant of
      special powers is not to be enlarged unless this is clearly
      intended. Nevertheless, the rule of strict construction will not be
      allowed to defeat the very purpose of the agency, and where the
      agent has authority to exercise discretion his exercise thereof
      will bind the principal.

Estate of Reifsneider, 610 A.2d 958, 960 (Pa. 1992) (internal quotation

marks, brackets, and citations omitted).

      Here, the 2011 POA specifically authorized Father’s agent to act

individually in opening a bank account in Father’s name and to do:

      all other acts or things whatsoever, and to exercise all
      other powers on my behalf, whether or not referred to
      herein, as fully as though herein specifically expressed, which in
      the sole discretion of my Agent may be deemed advisable to
      be done for me and in my name, as fully and completely as I
      might or could do personally, giving and granting to my Agent
      for that purpose full and complete power and authority to
      have, use and take all lawful means in my name for the
      purposes aforesaid. The enumeration of the specific powers
      conferred herein shall not be deemed to exclude herein
      any other power, it being my purpose and intent to give

                                     - 19 -
J-S58020-17


      my Agent power to do any and all things on my behalf as
      fully as I could do myself. The descriptive headings of this
      general power of attorney are inserted for convenience only and
      shall not be deemed to affect the meaning or construction of any
      of the provision [sic] hereof or to limit in any way the
      construction thereof in the broadest possible manner.

2011 POA, 11/9/11, at Preamble and ¶¶ 5, 27 (emphases supplied).

      Although the authority to open a joint bank account with right of

survivorship was not referred to in the 2011 POA, Paragraph 27 gave Geoff,

in his “sole discretion” as agent, “full and complete power and authority” to

act on Father’s behalf “as fully and completely as [Father] might or could do

personally.” 2011 POA, 11/9/11, at ¶ 27. Father might have or could have

personally opened a joint account with right of survivorship in the brothers

to assist them in continuing the family business after Father’s death. Thus,

the   orphans’   court’s   limited   construction    was   erroneous   because   it

disregarded the broad scope of powers set forth in the 2011 POA, as well as

the grant of sole discretion, the disclaimer about specific powers, and

Father’s expressed intention that the 2011 POA be construed in the broadest

possible manner. Id.

      With limited analysis, the orphans’ court determined that creation of

the Farm Account resulted in an unauthorized commingling of funds.

Orphans’ Court Opinion, 1/19/17, at 5–7.            Again, legal authority and the

record at hand provide no support for this finding.

      The MPAA provides that “[a] joint account belongs, during the lifetime

of all parties, to the parties in proportion to the net contributions by each to

                                       - 20 -
J-S58020-17


the sum on deposit, unless there is clear and convincing evidence of a

different intent.” 20 Pa.C.S.§ 6303(a). Our Supreme Court has explained:

     The theory behind the statute is that of ownership of the
     accounts attributable to the individual’s respective deposits and
     withdrawals; “the right of survivorship which attaches unless
     negated by the form of the account really is a right to the values
     theretofore owned by another which the survivor receives for the
     first time at the death of the owner. That is to say, the account
     operates as a valid disposition at death rather than as a
     present joint tenancy.”

Estate of Cella, 12 A.3d at 379 (quoting Novosielski, 992 A.2d at 105).

Moreover:

     [l]ike other testamentary devices, creation of a joint account,
     without more, accomplishes no present transfer of title to
     property. If ... one person deposits all sums in the joint
     account, this arrangement contemplates transfer of title
     to those funds to the other person or persons named on
     the account upon the death of the depositor. Moreover, the
     creator of a joint account, like the maker of a will and unlike the
     giver of a gift, may change his or her mind prior to death.

Novosielski, 992 A.2d at 102 (quoting Deutsch, Larrimore & Farnish,

P.C. v. Johnson, 848 A.2d 137, 143–144 (Pa. 2004)) (emphasis supplied).

     Here, the siblings stipulated, “In February 2012, Geoff as father’s POA,

took $70,000.00 from [Father’s] maturing CDs and $30,000.00 from

Father’s Citizens Bank account and opened an account at M&T Bank for the

Farming Operation (“Farm Account”).” Stipulated Facts, 12/30/16, at ¶ 18.

Nowhere in the stipulated facts do the parties mention that the brothers

deposited their own funds into the Farm Account or used the Farm Account

for personal reasons; rather, the Farm Account was opened and used to


                                   - 21 -
J-S58020-17


continue the operation of the family farming business.         Id. at ¶ 18 and

Exhibit J.   Moreover, any funds withdrawn from the Farm Account and

deposited into the brothers’ personal accounts were gifts from Father during

his lifetime, effectuated by Geoff and Karen as his agents. Id. at ¶¶ 27, 28,

and Exhibit I. Because the initial deposit was comprised solely of Father’s

funds and there is no evidence of other funds being deposited into the Farm

Account, the brothers had no ownership interest in the Farm Account during

Father’s lifetime. Novosielski, 992 A.2d at 102; Deutsch, 848 A.2d 143–

144. Accordingly, the orphans’ court erred in finding that the Farm Account

was commingled funds.

      Lastly, the orphans’ court determined that the Farm Account was not

reflective of Father’s intent. Yet, the siblings stipulated:

      15.    Revenues from the Farming Operation were historically
             deposited into Father’s and Mother’s joint checking account
             at Citizens Bank and Farming Operation expenses were
             historically paid from the same account, with Father and
             Mother itemizing the Farm Operation as Schedule “F” on
             their personal income tax returns.

                                     * * *

      17. Father’s Citizens Bank account was the account into which
           Father’s Social Security and retirement were automatically
           deposited monthly.

      18. In February 2012, Geoff as Father’s POA, took $70,000.00
           from the mature CDs and $30,000.00 from Father’s
           Citizens Bank account and opened an account at M&T Bank
           for the Farming Operation (“Farm Account”).

                                     * * *


                                      - 22 -
J-S58020-17


      28. In 2013 and 2014, Father, through Geoff, gifted to Geoff,
           Chet, Karen and Renee gifts from the Farm Account, rather
           than from the Citizens Bank Account to avoid depleting the
           Citizen’s Bank account from which expenses for Father’s
           care were being paid. . . .

Stipulated Facts, 12/30/16, at ¶¶ 15, 17, 18, 28.

      These facts indicate that the Farm Account was created to support the

Farming Operation, subsidize Father’s gifting, and insulate Father’s Citizens

Bank account, which was used for his personal care. Because the brothers

actively participated in the farming operation with Father, the reasonable

inference arises that the Farm Account was opened so the brothers could

maintain and continue the family business after Father’s death. Nothing in

the stipulated facts points to a contrary intent. The sisters’ claim that Father

intended to distribute his assets equally among his children is not negated

by creation of the Farm Account, which, the sisters stipulated, was created

“for the Farming Operation.”        Stipulated Facts, 12/30/16, at ¶ 18.

Accordingly, the orphans’ court’s finding that creation of the Farm Account

was not reflective of Father’s intent is unsupported by the record.

      Based on the foregoing, we hold that the orphans’ court erred in

concluding that the initial deposit of funds into the Farm Account was an

unauthorized exercise of authority and, therefore, invalid. In doing so, we

further conclude, as a matter of law, that the brothers own the Farm

Account through statutory survivorship. The MPAA grants a presumption in

favor of survivorship, and the sisters have not demonstrated clear and


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convincing evidence that Father intended the Farm Account to be divided

equally among the siblings and not include a right of survivorship.       20

Pa.C.S. § 6304; Novosielski, 992 A.2d 89.         Accordingly, we reverse the

orphans’ court January 19, 2017 order.

     Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2017




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