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In Re: Estate of Marjorie J. Cruciani

November 30, 2009


APPEAL OF: JEANNINE M. McCULLOUGH Appeal from the Order October 6, 2008, In the Court of Common Pleas of Lehigh County, Orphans' Court Division at No. 2007-0271.

The opinion of the court was delivered by: Popovich, J


¶ 1 Appellant Jeannine M. McCullough appeals the order holding that the signature on the last will and testament of Marjorie J. Cruciani, deceased, which document was submitted to probate by Appellant, was a forgery. We affirm.

¶ 2 A review of the record establishes that Marjorie J. Cruciani died on the 11th day of February, 2007, in Lehigh County, Pennsylvania. The decedent was survived by her husband (Angelo J. Cruciani, Jr.), son (Robert J. McCullough), and two daughters (Irene McCullough and Appellant). On February 21, 2007, Irene McCullough filed a petition for probate and grant of letters with the Register of Wills. On the same day, Angelo J. Cruciani, Jr. filed a renunciation of his rights to administer the estate, and the Register of Wills granted letters of administration to Irene McCullough. On February 26, 2007, notice of the preceding events were sent to the decedent's * Retired Senior Judge specially assigned to the Superior Court. beneficiaries, all of whom (save for Appellant) believed at that point in time that she died intestate.

¶ 3 It was not until June 21, 2007, that Appellant filed a petition for probate and grant of letters pendente lite with the Register of Wills, which was based upon the last will and testament of Marjorie J. Cruciani. On the same day, the Register of Wills revoked letters of administration granted to Irene McCullough. On June 26, 2007, the Register of Wills revoked the letters of administration pendente lite previously issued to Appellant and granted letters of administration to Angelo J. Cruciani, Jr. (petitioner) to act as administrator of decedent's estate pursuant to petitioner's "Petition for Probate and Grant of Letters C.T.A." Thereafter, on September 18, 2007, petitioner filed an appeal from the Register of Wills' order admitting Appellant's last will and testament of Marjorie J. Cruciani to probate because petitioner alleged that the decedent's signature was a forgery. The Orphans' Court, by order dated October 5, 2007, granted petitioner's request for a citation to schedule the matter for an evidentiary hearing to resolve the authenticity of decedent's signature. After the evidentiary hearing, the Orphans' Court sustained petitioner's appeal: "[T]he [Orphans'] Court having found that the signature on the document dated December 15, 2005 submitted to probate purporting to be that of Marjorie J. Cruciani is a forgery []." See Order dated October 2, 2008; Record No. 14. Appellant filed a timely notice of appeal challenging the Orphans' Court's finding that the decedent's signature was a forgery.1

¶ 4 Preliminarily, we note our standard of review when considering appeals from the Orphans' Court: 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 discretion. In Re: Estate of Presutti, 783 A.2d 803, 805 (Pa. Super. 2001) (citation omitted). Also, the party alleging forgery has the burden of proving the existence of the forged document by clear, direct, precise, and convincing evidence. In Re Estate of Smith, 454 Pa. 534, 314 A.2d 21 (1974); Cline Will, 433 Pa. 543, 252 A.2d 657 (1969). Further, we observe that because forgery presents an issue of fact, the resolution of the issue necessarily turns on the court's assessment of the witnesses' credibility. In re Estate of Heiney, 455 Pa. 574, 318 A.2d 700 (1974). Lastly, with regard to the testimony of a handwriting expert, we have held that where the testimony is corroborated by probative facts and circumstances surrounding the will such 1 A review of the record discloses that the Orphans' Court, after receiving notice of Appellant's appeal, specified in writing the place in the record where the reasons for the order appealed could be found. See Orphans' Court's "Pa.R.A.P. 1925(a) Statement;" Record No. 22. However, the Orphans' Court did not enter an order directing Appellant to file of record a concise statement of the matters complained of on appeal. See Pa.R.A.P. 1925(b). may overcome the testimony of the subscribing witnesses. In re Kirkander, 474 A.2d 290, 293 (Pa. Super. 1984).

¶ 5 In the current case, Irene McCullough's testimony was found to be credible by the Orphans' Court along with all of her other witnesses: Angelo J. Cruciani, Jr. (decedent's husband of thirty-one years), Lee A. Conrad, Esquire (attorney hired initially to handle the estate), Barbara Gerken (real estate agent/appraiser), and Edward J. Kelly (handwriting expert).

¶ 6 When Irene McCullough took the stand, she indicated receiving cards and letters from her mother throughout her life, which underscored her belief that the signature on the will was not decedent's: "It's far too neat and perfect." N.T., 9/30/08, at 19. After December 15, 2005 (date of the will), Irene McCullough was told by her mother that there was no will in existence. In fact, after Marjorie J. Cruciani was diagnosed in October of 2006 with myelodysplastic, she was asked whether she had signed anything giving Appellant any property, Irene McCullough testified: "[M]y mother said, 'Absolutely not.'" Id. at 41. Likewise, the husband indicated that decedent never mentioned having signed a will during her lifetime, nor did the real estate agent/appraiser recall Appellant ever remarking about having a life estate by reason of the decedent's will when the real estate was placed on the market for sale. Id. at 72, 95.

¶ 7 In February of 2007, Attorney Conrad was hired by Irene McCullough to handle decedent's estate. At the first meeting of beneficiaries, which was attended by decedent's children and husband, Attorney Conrad asked all attendees if there was a will in existence, and all said, "No." N.T., 9/30/08, at 48. In the absence of a will, and the husband renouncing his right to serve as administrator, Irene McCullough was selected by the husband to act in his stead, which did not sit well with Appellant and caused her to secure representation. Thereafter, Attorney Conrad learned of decedent's will through Appellant's present (sixth) attorney, which devised to Appellant a life estate in decedent's homestead. However, when a copy of the document came into Attorney Conrad's possession, he noticed that a signature (Sherry Bauer's) and typed name (Appellant's) did not appear appropriately situated; to-wit: The "acknowledgement" contained on page two had Appellant's name typed as an attesting witness, but Sherry Bauer's signature appeared above where "Witness" had been typed on the first page of the document, which was notarized by Mary Ann E. Reilly and allegedly signed by "Marjorie J. Cruciani" as her will. Moreover, when Attorney Conrad located Mary Ann E. Reilly, she failed to produce her ledger, which by Pennsylvania law a notary is required to maintain to chronicle each act.

¶ 8 The last witness to testify for petitioner was Edward J. Kelly, whose qualifications as an expert were stipulated to by Appellant. Mr. Kelly described the methodology utilized in examining the December 15, 2005, document as "image-enhanced comparative analysis" (simple magnification), which consisted of reviewing photocopies of six checks containing decedent's signature. These known signatures were compared with the signature on the document dated December 15, 2005. The expert testified that the differences between the check signature and will signature were "profound." N.T., 9/30/08, at 120. As a result, he opined, within a reasonable degree of forensic scientific professional certainty, that decedent's signature on the December 15, 2005, document was "a forgery[.]" Id. at 123.

¶ 9 To counter the assertion that the decedent's signature was a forgery, Appellant testified via telephone, but the notary (Mary Ann E. Reilly) and the attesting witness (Sherry M. Bauer) appeared in court. Ms. Reilly recalled being contacted on December 15, 2005, by Ms. Bauer to meet at a restaurant in Allentown, Pennsylvania, to do notary work involving decedent and Appellant, both of whom she had met in 2002. Ms. Reilly recounted how in 2002 she observed a handwritten document (supposedly a will) by decedent being witnessed by Appellant. As a result, in anticipation of decedent updating her 2002 handwritten document and before leaving for the restaurant, Ms. Reilly printed an acknowledgment listing decedent as affiant and Appellant as a subscribing witness in preparation for any will revisions that might take place at the December 15th meeting.

¶ 10 Once at the restaurant, Ms. Reilly was asked whether the 2002 handwritten document was legal. She said, "Yes," but decedent decided to revise it anyway to look more professional. This was facilitated by Appellant's laptop computer contained in her car, which served as the tool to create decedent's will. Once the revisions were approved by decedent, Appellant drove to a nearby Staples to have the computer-generated will printed and two copies made of the finished product. After returning with decedent's will, Appellant combined the first page of the will with the second page acknowledgement, the former of which was signed "Marjorie J. Cruciani," attested to by "Sherry M. Bauer" (even though Appellant's name had been typed in advance as the subscribing witness on the acknowledgement page prepared by Ms. Reilly),2 notarized, and dated December 15, 2005.3 The events recounted by Appellant and her witnesses 2 When Ms. Reilly was asked why she did not change the typed name of Appellant on the acknowledgement page to that of "Sherry Bauer," she answered: "Because, at the time - I, I don't know why I didn't." N.T., 9/30/08, at 181. 3 The first page of the document purporting to be decedent's will states: December 15, 2005 I Marjorie J. Cruciani, being of sound mind, bequeath my daughter [Appellant] a place on my property at 2577 Old Post Road, Coplay, Pa., 18037. That address being 2577 Old Post Road, Coplay, Pa., 18037. [Appellant] and I have spoken about her leaving for long periods of time. She sometimes wants to go to California where she has an apartment she sublets, or to spend long periods of time visiting with her dad in Kingston, New York. I have no problem with this as long as the bills we agreed upon are paid. I use the house when she's gone to paint or just relax in the patio room which she had constructed and paid $18,133.00 for along with detailing and tiling the floor. No matter where [Appellant] goes or how long she's gone this is always to be considered her home that she can come back to. For all these gracious things she has done for me, I want her to reside at 2577 Old Post Road, Coplay, Pa. for the remainder of her life. This is a gift from me to her with no monetary payment required. The only bills [Appellant] will be responsible for are her phone and the cost of propane. were found by the Orphans' Court to be "incredible," and the reasons for doing so are recited below, as herein relevant; to-wit: THE COURT: [] We accept the testimony of the handwriting expert, find it credible, find his opinion to be reliable, find it based upon facts, and find it to make sense to us. [ A]nd we accept all of the other testimony of the witnesses presented by the Petitioner and find all of it credible. Now, the question is, what about the testimony from [Appellant] and is it credible? And I want to point out some things and some findings. My daughter [Appellant] has health issues and this is my way of helping her heal and have a stable life. /s/ Mary Ann E. Reilly /s/ Marjorie J. Cruciani Notary Marjorie J. Cruciani December 15, 2005 /s/ Sherry M. Bauer Date: Witness [Notarial Seal was affixed here.] The second page (attached to the first page) of the purported will of the decedent provided: COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEHIGH On this, the fifteenth (15) day of December, 2005 before me, a notary public in and for the county of Lehigh, personally appeared before me Marjorie J. Cruciani and [Appellant] known to me to be the persons whose name is [sic] subscribed to the within instrument and acknowledge that they executed the same for the purposes therein contained. In witness thereof, I hereunto set my hand and official seal. /s/ Mary Ann E. Reilly Notary Public December 15, 2005 Date: [Notarial Seal was affixed here.] Petitioner's Exhibit 1.

The document, the original document of December 15, 2005 is in the court file - the Register of Wills file, I should say, which I have before me and have had before me in the hearing, and I gave the original to some of the witnesses to look at - particularly Mary Ann Reilly - and it is noteworthy that the stationery used is, for both pages, is exactly the same stationery and it is significant because it's not just a typical white copy paper. It has a texture. It's got a texture to it. I forget what they call it, but it's - I don't know - a cotton weave or something, but it definitely has a texture to it and it's the exact same texture on both pages. That is significant since Mary Ann Reilly said she brought the second page with her and had prepared it before she came, so that doesn't follow. The other thing is that - and [Appellant] says that Mary Reilly prepared the second page.

Another point on the whole - I'm going to deal with the whole 12/15/2005 incident together. I'm not breaking it down witness by witness. We have to look at the whole picture. There has been this discussion about the handwritten document from 2002, and that's been mentioned throughout. And I questioned, Where is that document? And it was stated that, suggested, I guess, that [Appellant] had that document or still has that document. Why hasn't that been produced if the December 15, 2005 document, simply a typed-written document from 2002, [] what was the reason for typing it? This suggests that there is no handwritten one for 2002 or there is one from 2002 that says something different and perhaps does contain the original signature of Marjorie Cruciani, and it looks a lot different from the one that's on the 2005 document. I don't know. That's all speculation. But the point ...

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