Estate of: Ratushny, R. ( 2014 )

J-A15030-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF RANDI RATUSHNY IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: ROBIN K. THOMAS
No. 3358 EDA 2013
Appeal from the Order Entered November 8, 2013
In the Court of Common Pleas of Northampton County
Orphans' Court at No(s): 2012-1527
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 08, 2014
Division of the Court of Common Pleas of Northampton County, denying her
we affirm.
will dated January 9, 2003. After directing the payment of debts and funeral
expenses, Decedent gave her entire estate to her brother, James G. Emlen,
and appointed him as executor. Of particular relevance to the instant appeal
is Item SECOND of the will, which provides as follows:
SECOND: Specific Devise: I devise to JAMES G. EMLEN, of
Delray Beach, Florida, if he survives me, the parcel of real
property known as 4000 Sherry Hill Road, Lower Saucon
Township, Northampton County, Pennsylvania along with all
appurtenances and improvements used in connection therewith,
including all furniture therein, if owned by me at the time of my
death. If my mother predeceases me, then I devise said real
estate to my sister, ROBIN THOMAS, if she survives me.
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Last Will of Randi Ratushny, 1/9/03, at Item SECOND.
On February 6, 2013, Thomas filed a petition to appoint and disqualify
named executor, Emlen, was not qualified to serve in that capacity due to,
inter alia
residence and insurance thereon, and waste and mismanagement of the
estate. Thomas further alleged that the substitute executors named in
her own appointment as Administratrix CTA.
Emlen filed an answer, new matter and counterclaim, in which he
asserted that Thomas lacked standing to file her petition. He also claimed
that he had been sworn in as executor but unable to finalize his appointment
because Thomas would not provide him with a death certificate for
Decedent; as such, he
obdurate and vexatious conduct.
On April 24, 2013, Emlen filed a petition for declaratory judgment,
seeking an interpretatio
Emlen claimed that the provision contained an ambiguity because the words
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, Michael F.
Corriere, Esquire.
Ite
mother had predeceased her. Accordingly, the court properly considered the
testimony of Attorney Corriere to determ
the disposition of her real property. Attorney Corriere testified that
Decedent had intended to devise the real property to Emlen and, if Emlen
predeceased her, to Thomas. He testified that, in revising a prior will he had
November 8, 2013. This timely appeal follows, in which Thomas raises the
following issues for our review:
1.
its discretion by denying the exceptions filed by Robin K.
Thomas to the order of court dated October 25, 2013, in
that parag
unambiguous?
2.
its discretion by denying the exceptions filed by Robin K.
Thomas to the order of court dated October 25, 2013, in
that [Emlen] should have been removed and/or
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[Thomas] should have been appointed Administratrix
C.T.A. thereof?
Brief of Appellant, at 4.
We begin by noting:
ision is
Court, this Court must determine whether the record is free from
-finder, it
determines the credibility of the witnesses and, on review, we
will not reverse its credibility determinations absent an abuse of
that discretion.
However, we are not constrained to give the same deference to
any resulting legal conclusions. Where the rules of law on which
the court relied are palpably wrong or clearly inapplicable, we
In re Estate of Strahsmeier, 54 A.3d 359, 362-63 (Pa. Super. 2012). An
abuse of discretion is not merely an error of judgment. Id. at 363. Rather,
discretion is abused if, in reaching a conclusion, the court overrides or
misapplies the law, or the judgment exercised is shown by the record to be
manifestly unreasonable or the product of partiality, prejudice, bias or ill will.
Id.mother, Thomas argues that the second sentence of Item SECOND becomes
operative, and she is the rightful devisee of the real property. For the
following reasons, this claim is without merit.
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It is well established that
every will and that intention must be ascertained from the
language and scheme of his entire will together with the
surrounding facts and circumstances; it is not what the Court
thinks he might or would or should have said in the existing
circumstances, or even what the Court thinks he meant to say,
but what is the meaning of his words.
Estate of Zucker, 761 A.2d 148, 150-51 (Pa. Super. 2000), quoting
Houston Estate, 201 A.2d 592, 595 (Pa. 1964) (citation and brackets
omitted). Only when the language of a will is ambiguous do we resort to
canons of construction. Id. at 151. Our Supreme Court has repeatedly held
explain or clarify the ambiguity, irrespective of whether the latent ambiguity
is created by the language of the Will or by extrinsic or collateral
In re Wachstetter Will, 216 A.2d 66, 70 (Pa. 1966).
Here, Decedent began Item SECOND by devising her real property to
Emlen. That outright devise is followed by a contingent devise to Thomas, in
did, in fact, predecease her. As such, the will is ambiguous in that it may be
read to devise the same parcel of real property to both Emlen and Thomas
simultaneously. Given this ambiguity, the court properly admitted the
See id.disqualify or remove Emlen from serving as executor. However, because we
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Attorney Corriere to show that Decedent intended to devise her real property
to Emlen, Thomas is not a party in interest under the will and, as such, lacks
See
its own motion may, and on the petition of any party in interest alleging
adequate grounds for removal shall, order the personal representative to
appear and show cause why he should not be removed, or, when necessary
to protect the rights of creditors or parties in interest, may summarily
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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