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submitted: August 1, 1988.


Appeal from the Judgment Entered June 21, 1988 in the Court of Common Pleas of Northampton County, Orphans' Court Division at Docket No. 1984-1007


Alfred S. Pierce, Nazareth, for appellant.

Olszewski, Montgomery and Hoffman, JJ.

Author: Montgomery

[ 379 Pa. Super. Page 612]

The instant appeal, by LaVern McDavitt, arises from an Order of the trial court, later reduced to a Judgment, concerning several disputed estate issues. The Appellant is the named Executrix and sole heir under the Will of her son, Lonny L. McDavitt, who died on September 16, 1984. The appeal involves disputes which were created by objections which were filed against the first and partial accounting filed by LaVern McDavitt, as well as by a petition which was filed to have the Appellant removed as Executrix, and surcharged for alleged improprieties in connection with the Estate. Such objections and petition were instituted by Mary J. (McDavitt) Whiting, the widow of Lonny McDavitt, who asserted a claim against the Estate for a surviving spouse interest, pursuant to her rights under the Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 2507(3).

The record of this case reveals a bitter conflict between a mother and wife over the somewhat complicated assets of the decedent, many of which were commingled with assets of each of the two women. The discord has spawned significant litigation over many aspects of the Estate. We need only address those facts and aspects of the legal dispute which are germane to the issues to be resolved on appeal. The trial court denied the petition for removal of the Appellant and a surcharge, but it granted some requests by Ms. Whiting. In that regard, the trial court determined that certain sums should have been included as assets of the Estate in the accounting filed by the Appellant in her role as Executrix. It is from the latter rulings that the Appellant has appealed.

The contentions raised on appeal largely involve the resolution of disputed facts by the trial court. Thus, it is pertinent at the outset of our analysis to note that it is

[ 379 Pa. Super. Page 613]

    well-established that the decisions of the trial judge in Orphans' Court matters will not be reversed unless there appears to have been an abuse of discretion or a fundamental error in applying the correct principles of law. See In re Estate of Elias, 429 Pa. 314, 239 A.2d 393 (1968); In re DiPietro's Estate, 306 Pa. Super. 238, 452 A.2d 532 (1982). The credibility of witnesses is to be evaluated by the hearing judge, and not the reviewing court. In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976). Moreover, the record must be read on appeal in a light most favorable to the appellee. Estate of Younger, 314 Pa. Super. 480, 461 A.2d 259 (1983).

The first argument raised by the Appellant is that the trial court erred in failing to determine that an oral lease arrangement existed between the decedent and Travel-Rite Auto Sales and Service, Inc. (hereinafter referred to as "Travel-Rite"), for the operation of a Columbia, New Jersey garage and the use of a Freightliner truck. The record shows that at the time of his death, the decedent owned and operated a proprietorship dealing in fuel oil and gasoline sales. In the course of this business, he used vehicles which were owned by Marlon Leasing, Inc., a corporation then solely owned by his spouse, Mary J. (McDavitt) Whiting. Decedent's business was operated using the garage in Columbia, New Jersey, which was owned by Travel-Rite, and a garage in Greenwich Township, Burks County, Pennsylvania, owned by Knowlton Elms Corp. (hereinafter referred to as "Knowlton"). Both Travel-Rite and Knowlton were New Jersey corporations, of which Appellant LaVern McDavitt was the sole shareholder. A Freightliner truck, which was also the property of Travel-Rite, was also used in the decedent's business operations.

It was the testimony of the Appellant that there was an oral lease arrangement between the decedent and Travel-Rite for the operation of the Columbia facility, and the rental of the Freightliner. The widow, by her petition, disputed such an arrangement, and asserted that the Executrix improperly failed to include the value of Travel-Rite as

[ 379 Pa. Super. Page 614]

    an asset of the Estate in her account, because the corporation was allegedly owned by the decedent at the time of his death. The trial court, after hearing all of the evidence, ruled that Travel-Rite was still the property of the Executrix. However, the trial court also found that the decedent had made substantial investments in Travel-Rite, as well as in Knowlton, in reliance upon an agreement with his mother to transfer these corporations to him. Further, the trial judge found that substantial steps had been taken to accomplish this transfer. Thus, he pointed out in his Opinion that the Executrix had sent letters to her accountant indicating that the transfers of the corporations were already made, agreements of sale had been signed, and the decedent had opened bank accounts on behalf of each corporation. Although stock transfers had never been accomplished prior to the decedent's death, the trial court determined that it would be unjust enrichment to allow the corporations to retain all such investments made by the decedent in contemplation of such transfers. Accordingly, the trial judge rejected the claim that the use of the Columbia, New Jersey facility and the Freightliner had merely been under a lease ...

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