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In re Estate of Andrews

Superior Court of Pennsylvania

May 29, 2014

IN RE: ESTATE OF DOLORES JEAN ANDREWS, A/K/A DELORES J. ANDREWS, A/K/A JEAN ANDREWS, DECEASED, Appellee, APPEAL OF: MARLENE K. ENGLISH, EXECUTRIX (REMOVED), Appellant

Argued: January 28, 2014.

Page 1227

Appeal from the Order of the Court of Common Pleas, Clearfield County, Orphans' Court Division, No(s): 1711-0612 OC. Before AMMERMAN, J.

Dwight L. Koerber, Jr., Clearfield, for appellant.

David C. Mason, Philipsburg, for McBride, participating party.

BEFORE: BOWES, WECHT, and STABILE, JJ. OPINION BY BOWES, J.

OPINION

Page 1228

BOWES, J.:

Marlene K. English appeals from the April 4, 2013 order removing her as executrix of the estate of Dolores Jean Andrews a/k/a Delores J. Andrews a/k/a Jean Andrews.[1] We affirm Appellant's removal as executrix and the appointment of Linda M. McGarry as personal representative in place of Appellant. We vacate the portions of the April 4, 2013 order that appointed Mary L. McBride as a co-administratrix of the estate and directed the register of wills to grant letters of administration to Ms. McGarry and Ms. McBride. Letters testamentary must be granted to Ms. McGarry.

Ms. Andrews died testate on October 6, 2011. On October 20, 2011, the Register of Wills of Clearfield County admitted to probate a will dated October 1, 2010, and issued letters testamentary to Appellant. The will provided that the decedent's residuary estate be divided equally among her four surviving daughters: Appellant, Marjorie L. Crago, Mary L. McBride and Linda M. McGarry. Ms. McBride's share of the residuary estate was reduced by a $25,000 advancement that Ms. Andrews made to her. The testatrix appointed Appellant as executrix of her estate. The will provides, " In the event that [Appellant] is unable or unwilling to so serve, at any time, for any reason, I appoint my daughter, MARJORIE L. CRAGO, Executor [sic] in her place." Will, 10/1/10, at 2. The will continues that if Ms. Crago " is likewise unable or unwilling to so serve, at any time, for any reason, I appoint my daughter, LINDA M. McGARRY, Executor [sic] in her stead." Id. Finally, with respect to the appointment of a personal representative, Clearfield Bank and Trust Company is named as executor in the event that Ms. McGarry was unable or unwilling to serve as personal representative of the estate.

On January 23, 2012, David C. Mason, Esquire, entered a praecipe for entry of appearance on behalf of Ms. McBride and Ms. McGarry (the " petitioners" ). On March 7, 2012, the petitioners filed a petition to compel the filing of an inventory. They averred the following. By letter dated January 23, 2012, the petitioners asked the attorney for the estate, Mr. Dwight Koerber, to file an inventory. In derogation of responsibilities imposed by 20 Pa.C.S. § 3301, Appellant did not file that document. 20 Pa.C.S. § 3301(a) ( " Every personal representative shall file with the register a verified inventory of all real and personal estate of the decedent, except real estate outside of this Commonwealth." ) 20 Pa.C.S. § 3301(c). " Any party

Page 1229

in interest in the estate may request the filing of an inventory . . . by writing delivered to the personal representative or his attorney in which event an inventory shall be filed within three months after the appointment of the personal representative or within 30 days after the request, whichever is later."

Petitioners further averred that Appellant was dissipating estate assets by disposing of various items of personality contrary to the terms of the will, that she was acting in contravention to the estate interests by failing to " acknowledge to the attorney for the estate the significant indebtedness which the Personal Representative has to the decedent," and that she had failed to disclose other estate assets to the petitioners. Petition to Compel the Filing of an Inventory Pursuant to 20 Pa.C.S. § 3301, 3/7/12, at ¶ 7.

Simultaneously with the filing of the petition to compel preparation of an inventory, the petitioners filed a petition for the removal of Appellant as executrix. They set forth that Appellant had a conflict of interest in that she was " the largest debtor of the estate" and owed it in excess of $113,000. Petition for Removal, 3/7/12, at ¶ 5. The petitioners additionally charged Appellant with self-dealing by purchasing estate assets for less than fair market value and by removing personalty without distributing it in accordance with the terms of the will. The petitioners then filed a request that they be appointed as co-executrixes. Appellant countered that the money approximating $113,000 was not a loan and was not subject to repayment to the estate. Appellant was represented by the attorneys for the estate in connection with this position.

The matter proceeded to a hearing, where the following was adduced. Appellant was her mother's power of attorney prior to her death. From 2002 to 2009, a series of eighteen checks were issued payable either directly to Appellant or to her wholly-owned corporation, Heritage Motor Freight, from a banking account containing the decedent's assets. Some of the checks were signed by Ms. Andrews while others were executed by Appellant as power of attorney. Each check had " loan" written on the memo line. The checks totaled $110,675. Appellant represented at the hearing that she attempted to repay the amounts but her mother refused those attempts and thus, forgave the debt and converted the transfers to gifts. Pointing to the fact that the will expressly charged Ms. McBride with the advancement made to her while omitting any reference to the advancements made to Appellant, Appellant claimed that the money given to her were advancements that did not have to be repaid to the estate.

On April 4, 2013, the orphans' court granted the petitioners' relief, based upon the following findings of fact:

1. During her lifetime the decedent provided the approximate amount of $113,000.00 to the now Executrix Marlene K. English;
2. These monies were drawn on the checking account of the decedent and each check indicates " loan" . This includes checks written to Marlene K. English which were signed by Marlene K. English as Power of Attorney for the decedent.
3. The Executrix has taken the position that these " loans" were not subject to repayment, and that she owes no duty to repay ...

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