IN RE: ESTATE OF: JESSIE M. TYLER, DECEASED APPEAL OF: JAMES L. AND JOSEPHINE HENRY
Appeal from the Order Entered June 14, 2011 In the Court of Common Pleas of Perry County Orphans' Court at No(s): 5010-0171.
BEFORE: BENDER, P.J., GANTMAN, J., PANELLA, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OTT, J., WECHT, J.
James L. and Josephine Henry ("the Henrys" collectively) appeal from the orphans' court's order entered on June 14, 2011, and amended June 23, 2011, in the Court of Common Pleas of Perry County, which found the document dated September 8, 2010 was not a valid codicil to the August 11, 2002 Will of Jessie M. Tyler ("Decedent"), and affirmed the Register of Wills' October 29, 2010 decree denying probate.
On appeal, the Henrys contend the orphans' court erred:
1) in refusing to admit to probate the writing dated September 8, 2010, a legally valid testamentary instrument;
2) in focusing on the plans of the scrivener rather than the intent of Decedent; and
3) in precluding the testimony of Allen Hench, Esquire ("Mr. Hench" or "the scrivener") as to conversations he had with Decedent regarding the preparation of the September 8, 2010 document and which establish her testamentary intent during the drafting of the September 8, 2010 document.
After review of the record, the submissions of the parties, and the applicable law, we affirm in part, vacate in part and remand.
The factual and procedural history of this appeal is as follows:
Decedent executed several wills between 1984 and August 2002. Mr. Hench, the scrivener of the wills, testified he would go to Decedent's home for appointments rather than her visiting his office. After the discussions, Mr. Hench would prepare a draft of the changes and these documents would be sent to Decedent. After review and further revisions, if required, the new will would be finalized by Decedent's executing it before witnesses. N.T., 4/11/2012 at 10, 14, 21-23.
Decedent's testamentary documents prepared prior to September 8, 2010 were an August 11, 2002 Will ("2002 Will") and a May 31, 2003 Codicil ("2003 Codicil"). The orphans' court found the 2002 Will and 2003 Codicil valid and directed them to be admitted for probate. See Order, 6/14/2011; Amended Order, 6/23/2011.
The relevant dispositive and administrative provisions of the 2002 Will are as follows:
[THIRD:] G. I give and bequeath all personal jewelry to Helen B. Muller of Selma, Alabama.
H. I give and bequeath all dining room and bedroom silver to Helen B. Muller of Selma, Alabama.
[EIGHTH:] A. After the payment of all items referenced above and the payment of all costs of administration, fees, and all expenses, I give and bequeath:
1. Twenty Thousand ($20, 000.00) Dollars to my brother Carl Arnold Muller; and
2. Ten Thousand ($10, 000.00) Dollars to James L. Henry, who has been a faithful helper to me since Walter's death, without whose help I could not have remained at Valley View.
B. After fulfillment of the directives and gifts provided in subparagraph A above, I give the balance then-remaining in two equal shares to the following:
1. Lehigh University, to establish a trust, the income and principal of which I direct be used to support the internship in the Comparative Lake Study Program of Lehigh University, in memory of Walter S. Tyler and Jessie Muller Tyler, or in the event that the utilization above set forth is not practical, to support other programs at Lehigh University which advance learning and education about the natural environment; and
2. Morris Arboretum of the University of Pennsylvania, in memory of Jessie Muller Tyler, Class of 1930 (B.S.) and 1933 (M.A.) and Walter S. Tyler.
ELEVENTH: I nominate, constitute and appoint my nephew Carl F. Muller and Allen E. Hench, Esquire, as Co-Executors of this my Last ...