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In re Estate of Harper

June 1, 2009


Appeal from the Order, August 3, 2007, in the Court of Common Pleas of Westmoreland County Orphans' Court Division at No. 65-05-2077.

The opinion of the court was delivered by: Ford Elliott, P.J.



¶ 1 Samuel Carl Harper, executor and beneficiary of the estate of Samuel W. Harper, appeals the order of August 3, 2007. We affirm, finding that 1) the orphans' court did not err in reducing the amount of the executor's commission and denying certain claims; and 2) that the words "share and share alike" in the testator's Last Will and Testament ("Will") did not evidence a clear intention to override the anti-lapse statute.

¶ 2 The Honorable William J. Ober has summarized the facts as follows:

Samuel W. Harper (Testator) died testate on July 27, 2005. Testator's Will pertinently provided that the residue of his estate would be distributed to his two sons, Executor/Appellant and William D. Harper, 'share and share alike.' However, William D. Harper predeceased Testator, leaving as issue one adult child, William N. Harper (Objector).

Executor filed a First and Final Account and Schedule of Distribution, in which he proposed to distribute 100% of the Estate to himself. Objector challenged the proposed distribution, arguing that he should take the share of his deceased father pursuant to the Anti-Lapse Statute. Objector also objected to the first and final account concerning the disputed the [sic] validity of several claims and the amount of the personal representative's commission.

On March 13, 2007, this Court sustained the Objector's objections and ordered the Executor to distribute one-half of the distributable estate to Objector and scheduled a date for hearing testimony regarding the other objections to the First and Final Account. Meanwhile, Executor filed exceptions to the Court's ruling of March 13, 2007 regarding application of the Anti-Lapse Statute. At a hearing on May 29, 2007, the Court disallowed the disputed claims by the Executor in the amount of $11,000.00 and reduced the personal representative's commission to $16,324.85. On the record at that hearing, the Court also denied Executor's exceptions filed on March 29, 2007. This appeal ensued.

Orphans' court opinion, 9/17/07 at 2.*fn2

¶ 3 In his brief on appeal, objector/appellee contends that the court's August 3, 2007 order is interlocutory and unappealable. Appellee cites Estate of Schmitt, 846 A.2d 127 (Pa.Super. 2004), appeal quashed, 579 Pa. 703, 857 A.2d 679 (2004), for the proposition that in a decedent's estate, the confirmation of the final account of the personal representative represents the final order. Id. at 129, citing In re Estate of Sorber, 803 A.2d 767 (Pa.Super. 2002); appellee's brief at 15. Appellee states that there has not been a confirmation of the final account and the executor has neither sought nor received a determination of finality from the orphans' court. (Appellee's brief at 16.) Therefore, appellee requests that this court quash the appeal.

¶ 4 Schmitt observed that this court has refused to entertain appeals from orders dismissing objections to an account but not expressly confirming the account or approving the proposed distribution. Id. at 129, citing In re Estate of Meininger, 532 A.2d 475 (Pa.Super. 1987). This court in Schmitt quashed an appeal from an order striking the appellant's caveat objecting to the probating of the testator's will and admitting the will to probate. In so doing, Schmitt acknowledged this court's interest in avoiding piecemeal litigation. Id. (citation omitted).

¶ 5 However, since our decision in Schmitt, the rules have been amended. "In response to Schmitt, our [Supreme Court] amended Rule 311 specifically to permit immediate appeals from orders of the Orphans' Court determining the validity of a will or trust, despite the fact that these orders are often interlocutory." In re Estate of Fritts, 906 A.2d 601, 605 (Pa.Super. 2006), appeal denied, 591 Pa. 673, 916 A.2d 1103 (2007), citing Pa.R.A.P. 311(a)(8), Explanatory Comment-2005. The Explanatory Comments recognize that "it is not practical to administer an estate or trust while there is a pending challenge to the validity of the instrument." Similarly, here, it is impractical for appellant/executor to administer the estate while he has challenged the orphans' court's determination that objector/appellee is due one-half the residuary estate.

¶ 6 Furthermore, we agree with the orphans' court that the order of August 3, 2007 constitutes a final order in that it disposes of all claims and all parties. (Orphans' court opinion, 9/17/07 at 2; Pa.R.A.P. 341(b).) The court found that appellee was entitled to a one-half interest in the distributable estate and directed that appellant/executor make distribution accordingly by August 20, 2007. The court also disposed of appellant's claims for compensation/expenses. Therefore, as appellant states, there is nothing left to decide. (Appellant's reply brief at 3.) There is no danger of piecemeal litigation as in Schmitt.

¶ 7 The first issue raised for this court's review is whether the orphans' court erred in applying the anti-lapse statute to decedent's Will where one of the named beneficiaries, William D. Harper, predeceased the decedent. Appellant argues that the testator's use of the words "share and share alike" constituted evidence of his intent sufficient to defeat application of the statute. Appellant contends that William D. Harper's share lapsed and that the entire estate should pass to himself as the sole remaining residuary legatee. We disagree, and determine that as the anti-lapse statute operated to prevent the devise to William D. Harper from lapsing, the court below did not err in ordering distribution of one-half of the estate to William D. Harper's son, William N. Harper.

Our standard of review of the findings of an orphans' court is deferential.

When reviewing a decree entered by the Orphans'

Court, this Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence. Because the Orphans' Court sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion.

In re Estate of Geniviva, 450 Pa.Super. 54, 675 A.2d 306, 310 (1996). However, 'we are not constrained to give the same deference to any resulting legal conclusions.' Id. 'Where the rules of law on which the court relied are palpably wrong or clearly inapplicable, we will reverse the court's decree.'

In re Smith, 890 A.2d 1082, 1086 (Pa.Super.2006) (quoting In re Estate of Harrison, 745 A.2d ...

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