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ESTATE ROBERT P. FIKE (01/31/86)

filed: January 31, 1986.

IN RE ESTATE OF ROBERT P. FIKE, DECEASED. APPEAL OF MARLENE FIKE DUNN


Appeal from the Order of the Court of Common Pleas, Orphans' Court Division, of Fayette County, No. 122 of 1978.

COUNSEL

Harry Polikoff, Philadelphia, for appellee.

Spaeth, President Judge, and Rowley and Wieand, JJ.

Author: Rowley

[ 351 Pa. Super. Page 382]

OPINION OF THE COURT

Robert P. Fike, the decedent, died on January 21, 1978. He was survived by his widow, Ruth N. Fike, and his daughter, Marlene Fike Dunn (Appellant). Mrs. Dunn is the decedent's daughter by a prior marriage.

In his will, executed in 1973, decedent, after leaving his tangible personal property to his widow, established a marital trust, designated as Fund A, for his wife's welfare and comfortable support. The residue of his estate he left in trust, designated as Fund B, to be divided into two separate equal trusts, one for his widow and one for his daughter. The decedent designated his widow and Gallatin National Bank as co-trustees of the trusts established by his will and appointed his brother, Louis S. Fike, Executor of his estate.

In March, 1982, the Executor filed his second and partial account, together with a schedule of proposed distribution. Objections were filed by decedent's daughter, Mrs. Dunn. On July 14, 1983, the trial court filed an adjudication and decree nisi disposing of the objections. Mrs. Dunn then filed exceptions to the trial court's adjudication and decree nisi. On April 30, 1984, the trial court filed an opinion and "final decree" disposing of Mrs. Dunn's exceptions.

[ 351 Pa. Super. Page 383]

Mrs. Dunn's appeal from the trial court's "final decree" is now before us for disposition.*fn1 In considering appellant's arguments, we note that it is a cardinal rule in the construction of a will that the intention of the testator shall govern, whenever that intention is clearly manifested, and is not in conflict with established principles of law. Thompson's Estate, 229 Pa. 542, 79 A. 173 (1911). Additionally, we note that our scope of review on appeal from a decree entered by the Orphans' Court is extremely limited; we will modify a decree only if it is not supported by competent or adequate evidence, if an error of law has been committed, or if the trial court abused its discretion. Fulkroad v. Ofak, 317 Pa. Super. 200, 463 A.2d 1155 (1983). With these polestars before us, we turn to the arguments advanced by the parties.

I.

Appellant's first claim is that the Executor's proposed distribution, approved by the trial court, will result in an over-funding of the marital trust. She advances two arguments in support of this claim.

A.

According to the inventory and appraisement as filed by the Executor, the decedent's personal and real estate were valued at $1,584,580.91. The principal asset of the estate was a "purchase money promissory note" dated January 20, 1978 (the day preceding decedent's death) from Pyah Industries, Inc. [hereinafter Pyah] on which the balance due was listed as $1,327,181.00. In addition to the note, the Executor listed as an asset of the estate a certified check from Pyah to the decedent in the amount of $182,500.00.

[ 351 Pa. Super. Page 384]

According to the account, the estate assets had appreciated in the amount of $188,805.62 from the date of decedent's death to the date the account was stated. The Executor proposed distributing 58.4938% of the appreciation, that is, $110,439.58 to the marital trust (Fund A) and the balance of the appreciation, being 41.5062% or $78,366.04, to the residuary trust known as Fund B. Appellant's first argument is that the trial court erred in approving the distribution of any portion of the ...


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