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04/30/97 ESTATE ALFRED E. SMITH DECEASED JEAN L.

April 30, 1997

IN RE: ESTATE OF ALFRED E. SMITH, DECEASED; JEAN L. SMITH, ADMINISTRATRIX C.T.A. OF THE ESTATE OF ALFRED E. SMITH, DECEASED VS CAROL SANDT, JOY YOUPA, BARBARA KRESSLEY AND DIANA KRESSLEY; IN RE: ESTATE OF ALFRED E. SMITH, DECEASED; JEAN L. SMITH, ADMINISTRATRIX C.T.A. OF THE ESTATE OF ALFRED E. SMITH, DECEASED VS CAROL SANDT, JOY YOUPA, BARBARA KRESSLEY AND DIANA KRESSLEY; APPEAL OF: WILLARD KRESSLEY, EXCEPTANT


Appeal from the Decree April 26, 1996 in the Court of Common Pleas of Lehigh County, Orphans' Court Division, No. 1994-0607, 95-C-1595. Before YOUNG, J.

Before: Cirillo, Del Sole And Olszewski, JJ. Opinion BY Del Sole, J. Concurring And Dissenting Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Del Sole

OPINION BY DEL SOLE, J.:

FILED APR 30 1997

This is an appeal and cross-appeal from the decree of the Court of Common Pleas of Lehigh County, Orphans' Division, denying Appellant Jean Smith's and Cross-Appellant Willard Kressley's exceptions and entering a final decree in favor of Appellees. We affirm in part and reverse in part.

On May 7, 1994, Appellant's husband, Alfred E. Smith (Decedent), committed suicide in the basement of the couple's home. Prior to his suicide, Decedent took the following steps in an effort to attend to several of his personal affairs. On May 5, 1994, Decedent drafted four checks in various amounts to four individuals: Joy Youpa (Decedent's girlfriend), Carol Sandt (Ms. Youpa's sister), Barbara Kressley (Decedent's sister), and Diana Kressley (Decedent's niece). On May 6, 1994 Decedent prepared and executed a holographic will. The will contained the following contested provision: "I want Willard Kressley to have the option of buying my '66 Corvette from Jean [Appellant] for $12,000." Also on May 6, 1994, Decedent mailed the checks to his sister and niece accompanied with a suicide note. *fn1 On May 7, 1994, before committing suicide, Decedent delivered the checks to his girlfriend and her sister by leaving the checks under a pizza box on their kitchen table. The two mailed checks and the note were received on May 9, 1994, two days after the suicide. Each of the recipients knew of Decedent's death at the time she cashed her check.

After Appellant, as administratrix of Decedent's estate, discovered that Decedent had written the four checks, she requested that the funds be returned by the recipients to the estate. The four recipients refused and Appellant commenced a civil action alleging conversion and seeking restitution. The civil action was transferred to Orphans' Court for Disposition in connection with pending matters.

The court entered a decree holding that the four checks to the donees were valid gifts causa mortis and that Mr. Kressley was not entitled to the Corvette. Appellant and Cross-Appellant filed exceptions to the decree nisi which were denied. These appeals followed.

When reviewing a final order of the Orphans' Court, we accord the findings the same weight and effect as the verdict of a jury; we will not disturb those findings absent manifest error; we may modify the 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. In re Benson, 419 Pa. Super. 582, 615 A.2d 792 (1992).

The issue presented by Appellant for our review is whether Decedent's death revoked gifts of checks which Decedent had written, but which were not negotiated until after his death. The lower court held that the gifts were not revoked because they were valid gifts causa mortis. Trial Court opinion 4/26/96, p. 4.

To establish a gift causa mortis, it must be shown that at the time of the alleged gift, the decedent intended to make a gift, the decedent apprehended death, the res of the intended gift was either actually or constructively delivered, and death actually occurred. In re Ream's Estate, 413 Pa. 489, 490, 198 A.2d 556, 557 (1964). It is not necessary that the donor expressly say he knows or believes he is dying, that may be inferred from the attendant circumstances. It will suffice if at the time the gift was made, the donor believed he was going to die, that he was likely to die soon; and death did actually ensue within a reasonable time thereafter. Titusville Trust Co. v. Johnson, 375 Pa. 493, 499, 100 A.2d 93, 97 (1953).

The facts of the instant case support a finding of a gift causa mortis. On May 5, 1994, Decedent wrote and executed the four checks to four separate individuals in various specific amounts. On May 6, 1994, Decedent mailed two of the checks, accompanied by a note of suicide. On May 7, 1994, Decedent physically delivered the other two checks, and then, sadly, took his own life. All of the requisite elements of a gift causa mortis have been established. Therefore, the lower court was correct in refusing to revoke the checks. *fn2

Next, Cross-Appellant Willard Kressley questions whether the lower court properly concluded that the portion of Decedent's holographic will granting Cross-Appellant the option to purchase Decedent's '66 Corvette at a reduced price was merely a request and not a mandatory obligation of Decedent's estate.

The intention of the testator is of primary importance. So that that intention shall be given full expression, it can be denied only where it is unconstitutional, unlawful, or against public policy. In re Estate of Janney, 498 Pa. 398, 446 A.2d 1265 (1982). To ascertain this intent, a court must examine the words of the instrument and, if necessary, the scheme of distribution, the circumstances surrounding the execution of the will and other facts bearing on the question. Estate of Reynolds, 494 Pa. 616, 432 A.2d 158 (1981). When interpreting a will, every word and clause must be given effect if reasonably possible, and the interpreting court cannot ignore the language of the testator, except where the language of the entire will demonstrates that the language in ...


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