In Re: Est. of Gardner, P.A., Sr., Dec'd ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF PAUL A. : IN THE SUPERIOR COURT OF
GARDNER, SR. DECEASED : PENNSYLVANIA
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APPEAL OF: PAUL A. GARDNER, JR. :
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:
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: No. 464 MDA 2020
Appeal from the Order Entered February 12, 2020
In the Court of Common Pleas of Montour County Orphans’ Court
Division at No(s): 25-OC-2018
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY LAZARUS, J.: FILED: JULY 8, 2021
Paul A. Gardner, Jr., Executor of the Will of Paul A. Gardner, Sr.,
Deceased (“Decedent”), appeals from the order, entered in the Court of
Common Pleas of Montour County, Orphans’ Court Division, holding that
certain items of personal property belonged to Appellee, Tina M. Randello.
Upon careful review, we affirm.
Paul A. Gardner, Sr. (“Decedent”), and Randello were married on March
4, 2012, after cohabiting for approximately seven years. Prior to their
marriage, the couple executed a prenuptial agreement (“Agreement”),
pursuant to which they each agreed to waive all claims to the separate
property of the other upon divorce or separation. Specifically, the Agreement
provides, in relevant part, as follows:
§ 1.03. The Parties intend by this Agreement to confirm that all
property owned by each prior to their marriage as the separate
property of that Party.
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...
§ 3.01(b). Except as otherwise provided in this Agreement,
[Decedent] shall keep and retain the sole ownership, control[,]
and enjoyment of all of his property, free and clear of any claim
by [Randello], including, without limitation, any claim of dower or
equitable distribution[,] and he shall have the exclusive right to
dispose (during his lifetime or by [w]ill) of such property[,]
without interference or restraint by [Randello] in like manner as if
the marriage had not taken place and he had remained unmarried.
§ 3.01(c). Notwithstanding anything in this Agreement to the
contrary, neither party shall have any interest in the business or
assets of the other, the proceeds or the partial or complete sale
of the business or assets owned by the other or any assets
acquired in exchange for the partial or complete sale of the other
party’s business and/or its assets.
§ 3.02. All wages, salary, and income of any kind of each Party
earned or received during the marriage, shall be the separate
property of that Party.
§ 3.03. The full value of any property acquired during marriage
by a Party that is acquired with the proceeds of separate property
pursuant to any sale, other disposition, or change in form of
separate property shall remain the separate property of that
Party. The full value of all property that either Party may acquire
by way of gift or inheritance, whether from spouse or third parties,
whether under a [w]ill or by intestate distribution, is similarly the
property of the owner-party.
...
§ 3.06. Each party shall have the absolute and unrestricted right
to manage, control, dispose of, or otherwise deal with his or her
separate property
...
§ 4.04. At the death of either Party, his or her separate property
acquired prior to the date of the marriage as set forth in Exhibits
“A” and “B” to this Agreement, together with all income and
proceeds from increases in value of, and other property acquired
in exchange for any such separate property, shall pass to his or
her children or their heirs free from any claim from the other
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Party. Each Party hereby waives any and all claim they may have
against the Estate of the other[,] whether based on a right to take
an elective share against a Will, a right under the law of intestacy,
or any other right created by law.
...
§ 5.03. All household furnishings separately or joint [sic] held in
Paul A. Gardner, Sr. not otherwise specifically bequeathed or
gifted in his Will shall become the separate property of Tina M.
Randello in the event of a permanent separation or divorce of the
parties.
Prenuptial Agreement, 2/10/12. Appended to the Agreement were two
exhibits listing the major assets of each party. Neither party included any
household furnishings or specific items of personalty on their asset disclosure;
Decedent generally disclosed “personal property” with an aggregate value of
$350,000.
Decedent executed a will on November 4, 2013, pursuant to which he
appointed his son, Paul A. Gardner, Jr., as executor. Under the terms of his
will, Decedent gave Randello certain items of personal property—listed at
Schedule I to the will—for her use and benefit so long as she remained living
full-time in the marital residence, or until her death, whichever occurred first.
Decedent also gave Randello the funds remaining in two investment accounts
and reiterated her entitlement to his Heller’s Gas 401(k) retirement account,
on which she was the named beneficiary. Decedent made numerous bequests
of various business, financial, personal, and real property to his sons; the
remainder of Decedent’s estate was to pass to Randello.
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At some point in 2017, Decedent’s health deteriorated. A dispute
subsequently arose between Randello and Decedent’s family over the validity
of a power of attorney, allegedly executed by Decedent, naming Randello as
his agent and “transferring management and control of [Decedent’s] personal
care and control of his considerable assets from his current agent, Paul A.
Gardner, Jr., to Randello.” Brief of Appellant, at 12. As a result of that
dispute, Decedent’s children filed a guardianship petition in the Montour
County Orphans’ Court. The guardianship action was ultimately withdrawn
pursuant to a Confidential Stipulation (“Stipulation”), approved by the court,
in which the parties agreed that the challenged power of attorney was void
and of no effect and that the Agreement remained in full force and effect. The
parties further stipulated that, “[a]s of the effective date hereof[,] only the
following assets . . . are held jointly by [Randello] and [Decedent]: P&T Realty
LLC [and] Town Home, Danville, PA.” Confidential Stipulation, 4/27/18, at ¶
1 (unnecessary capitalization omitted). The Stipulation also provided that,
upon Decedent’s death, Randello would receive 25% of Decedent’s Scottrade
account, which was initially to be divided equally among Decedent’s three
children under the terms of Decedent’s will.
Decedent died on May 18, 2018, leaving an estate worth approximately
$80 million; his will was duly probated and Executor was granted letters
testamentary. The will’s tax clause required all death taxes to be paid from
the residuary estate. Decedent’s children have paid the taxes owed by the
estate; however, the taxes owed exceeded the value of the residuary estate,
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and it is the Executor’s intent to reimburse himself and his siblings by
liquidating the property that would have otherwise passed to Randello via the
residuary clause. As a result, the instant dispute arose over the ownership of
much of Decedent’s personal property.
On July 16, 2018, Executor filed a “Petition of Executor for Access to the
Tangible Personal Property Owned by the Estate of Paul A. Gardner, Sr., for
Proper Inventory in Accordance with the Pennsylvania Estate and Fiduciaries
Code.” In that petition, Executor sought access to the marital home1 to
conduct an inventory of all Decedent’s personal property located within the
residence, including the content of two safes kept at the property. Randello
filed preliminary objections to the petition, which the court denied following a
hearing on August 17, 2018. The court appointed Dustin Snyder as the court’s
representative, “to conduct and document and inventory all personal property
located at [the marital residence] in which the estate claims an interest[.]”
Trial Court Order, 8/17/18, at ¶ 1. The inventory was ultimately conducted;
on May 21, 2019, the court, following a conference with counsel, issued an
order directing the parties to exchange lists of personal property claimed by
each party, followed by a list of any objections to the other party’s list.
Following receipt of Randello’s list of claimed property, Executor filed a
“Motion to Enforce Terms of [Decedent’s Will, the Agreement, and the
Stipulation],” asserting that Randello’s claims to certain items of personalty
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1 Randello owned the marital home prior to her relationship with Decedent and
continues to be the sole owner of that property.
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violated the terms of the three referenced documents and that Randello had
waived all claims to property purchased by Decedent with his own funds.
Executor requested that the court “confirm” the terms of the three documents
by finding that: (1) property acquired by Decedent prior to his marriage to
Randello is Decedent’s separate property, free of all claims by Randello; (2)
property acquired by and/or titled in the name of Heller’s Gas is the property
of that entity, free of all claims by Randello; (3) property purchased by
Decedent during the marriage with Gardner’s separate property or income is
Decedent’s property, free of all claims by Randello; (4) property acquired by
or with income generated by joint property—specifically, P&T Realty, LLC, and
Town Home, Danville, PA—or in exchange for property owned by those entities
is the sole and separate property of Randello, free from any claims by the
estate; and (5) property purchased by Randello during the marriage with
Randello’s separate property or income is Randello’s, free of all claims by the
estate. See Motion to Enforce, 8/22/19, at [7].
The court held multiple hearings, during which the parties disputed their
claims to innumerable pieces of personal property, including such items as a
walking stick, zebra throw pillows, cigar cutters, a frosted cup, laser pointers,
flashlights, and porcupine quills.2 Of particular relevance to this appeal, the
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2 Aptly, the Honorable Thomas A. James, Jr., related the following anecdote
prior to the first hearing in this matter:
(Footnote Continued Next Page)
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parties disputed ownership of approximately 1,400 bottles of California wine
and wine racks. Executor argued that Decedent—individually or with his
corporate credit card—paid for the wine and, therefore, pursuant to the terms
of the Agreement, it is the property of the estate. Randello argued that,
although paid for by Decedent, the wine was purchased as a couple, and they
“drank it, . . . entertained [with it], . . . gave it away for gifts for Christmas,
for Thanksgiving. . . . It was something [they] enjoyed together.” N.T.
Hearing, 12/27/19, at 10. Therefore, Randello asserts, the wine should be
considered entireties property that passes to Randello. Similarly, the parties
disputed the ownership of three paintings by the artist Craig Bone. Executor
asserted that Decedent paid for them with $50,000 of his own money prior to
the marriage and, therefore, they are the property of the estate. Randello
claimed that the paintings were “[their] first purchase that [they] ever bought
together” and that she paid Decedent in cash for half the value of the paintings
after he paid the artist using his credit card. N.T. Hearing, 12/20/19, at 206.
Finally, Executor argued that a Kubota mower and rough terrain vehicle
(“RTV”) were purchased—prior to the marriage—by Decedent’s business for
____________________________________________
[W]hen I was doing divorces . . . I remember walking out the door
here with my client and we’re arguing about personal property.
We came down to a blender and I said to my client, I reached into
my pocket, gave her $20.00 and said, “Go buy the damn blender.
I’m not arguing anymore.” Now, this is that case on super-duper
steroids.
N.T. Hearing, 6/13/19, at 4.
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yard care at the property shared by Decedent and Randello. Randello claimed
that Decedent purchased the RTV for her to replace a four-wheeler because
“[h]e felt it was safer,” and that she used it to haul mulch and work outside
at her property. N.T. Hearing, 12/27/19, at 4. Similarly, Randello asserted
that Decedent purchased the Kubota mower to replace a tractor that she had
owned because the Kubota “made it easier to mow the grass.” Id. at 5.
Following the final hearing, the Orphans’ Court issued an order on
February 11, 2020, in which it disposed of the various items disputed by the
parties. The court determined, inter alia, that Randello was entitled to the
above-specified items, i.e., the wine, paintings, and lawn equipment. The
Executor filed a motion for reconsideration/exceptions, which the court denied
on March 12, 2020. Executor filed a timely notice of appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Executor raises the following claims for our review:
1. Did the [Orphans’ Court] commit an error of law and/or an
abuse of discretion by ruling that ownership of an RTV and
Kubota mower passed to Randello upon [Decedent’s] death
when these items were (a) purchased with [Decedent’s]
business assets and (b) the RTV was purchased years before
the marriage and the parties were bound by a prenuptial
agreement wherein Randello waived all claims to [Decedent’s]
premarital and business property?
2. Did the [Orphans’ Court] commit an error of law and/or an
abuse of discretion by ruling that ownership of a collection of
1,400+ bottles of wine and wine racks passed by operation of
law to Randello upon [Decedent’s] death despite the fact that
these items were purchased by [Decedent] with his separate
property and their prenuptial agreement waives all claims by
Randello to assets purchased by [Decedent’s] separate
property?
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3. Did the [Orphans’ Court] commit an error of law and/or an
abuse of discretion by ruling that ownership of three Craig Bone
paintings purchased by [Decedent] before the marriage passed
by operation of law to Randello upon the death of [Decedent]
despite the fact that (a) Randello waived all claims to
[Decedent’s] premarital property in their prenuptial agreement
and (b) a confidential stipulation agreement between
[Decedent] and Randello (dated one month prior to
[Decedent’s] death) confirmed the subject paintings were not
“jointly held assets”?
4. Did the [Orphans’ Court] commit an error of law or an abuse
of discretion in accepting Randello’s uncorroborated testimony
that she allegedly paid [Decedent] $25,000 cash for a joint
interest in the Craig Bone artwork as “clear and convincing
evidence” to overcome the express terms of the prenuptial
agreement and the confidential stipulation executed one month
before [Decedent’s] death which confirmed the subject artwork
was not a joint asset?
Brief of Appellant, at 9.
We begin by noting that 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.
However, we are not constrained to give the same deference
to any resulting legal conclusions.
In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa. Super.
2000) [] (internal citations and quotation marks omitted). “The
Orphans’ Court[’s] decision will not be reversed unless there has
been an abuse of discretion or a fundamental error in applying the
correct principles of law.” In re Estate of Luongo, 823 A.2d
942, 951 (Pa. Super. 2003)[.]
In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016) (citation omitted).
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Executor’s claims are all grounded in the terms contained in the
Agreement.
Prenuptial agreements are contracts and should be interpreted
using contract principles. Raiken v. Mellon, [] 582 A.2d 11, 13
([Pa. Super.] 1990).
“When interpreting a prenuptial agreement, the court, as in
dealing with an ordinary contract, must determine the intention of
the parties. When the words of a contract are clear and
unambiguous, the intent of the parties is to be discovered from
the express language of the agreement.” Id. “The court must
construe a contract as written and may not modify the plain
meaning of the contract under the guise of interpretation.”
Tuthill v. Tuthill, 763 A.2d 417, 420 (Pa. Super. 2000)[.]
However, where an ambiguity exists, “the courts are free to
construe the terms against the drafter and to consider extrinsic
evidence in so doing.” Raiken, 582 A.2d at 13. If a contract “is
fairly susceptible of different constructions and capable of being
understood in more than one sense[,]” it will be found to be
ambiguous. Tuthill, 763 A.2d at 420. “It is the function of the
court to decide, as a matter of law, whether the contract terms
are clear or ambiguous. The fact that the parties have different
interpretations of a contract does not render the contract
ambiguous.” Id. (citations omitted).
In re Estate of Blumenthal, 812 A.2d 1279, 1286 (Pa. Super. 2002).
Executor first asserts that the Orphans’ Court erred and/or abused its
discretion in determining that Decedent purchased the RTV and mower as gifts
for Randello to replace a machine or machines previously used by Randello to
maintain her property. Executor argues that, because Decedent paid for the
machines with his Heller’s Gas credit card prior to the couple’s marriage,
Randello waived any claim to it under the terms of the Agreement, which
provides that any property acquired by Decedent prior to marriage remains
his sole and separate property. See Agreement, supra at §§ 1.03, 3.01(b)-
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(c), and 4.04. Randello asserts that the machines were gifts from the
Decedent to her and are, therefore, her property. Executor is entitled to no
relief on this claim.
The existence of a valid prenuptial agreement does not prohibit
subsequent inter vivos gifts and testamentary bequests to a surviving spouse.
See In re Hillegass’ Estate, 244 A.2d 672, 676 (Pa. 1968). Indeed, the
Agreement signed by the parties contemplates the possibility of gifts given
from one spouse to the other. See Agreement, supra at §§ 3.03 (“The full
value of all property that either Party may acquire by way of gift . . ., whether
from spouse or third parties, . . . is similarly the separate property of the
owner-party.”) and 6.05 (“Nothing in this Agreement shall affect the right of
either Party voluntarily to transfer real or personal property to the other Party
with or without consideration or the right of either Party to receive property
transferred by the other Party during his or her lifetime.”).
Generally, the burden of proving an inter vivos gift is placed
initially on the putative donee. See In re Estate of Pappas, []
239 A.2d 298, 300 ([Pa.] 1968). The putative donee must show
a prima facie case through clear, direct and convincing evidence
that an inter vivos gift has taken place. Id. Once a prima facie
case is established by the putative donee, a presumption of the
validity of the gift arises, then the burden shifts to the contestant
to show by clear and convincing evidence that the property in
question was not given as an inter vivos gift. Id.Lanning v. West, 803 A.2d 753, 761 (Pa. Super. 2002). Clear and convincing
evidence is defined as “testimony that is so clear, direct, weighty, and
convincing as to enable the trier of fact to come to a clear conviction, without
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hesitancy, of the truth of the precise facts in issue.” In re Adoption of L.J.B.,
18 A.3d 1098, 1107 (Pa. 2011).
Here, the Orphans’ Court credited the following testimony of Randello 3
regarding the lawn care machines:
Q: Okay. Tina, on the first page is an RTV 500 camo gas . . .
vehicle. Can you tell the court how that arrived at your house and
how that was used?
A: Yes. Paul bought that for the home and I used that to haul
my mulch and work outside. I have 12 acres that I mow off. And
so I use it for outside and also to check my trails. I got rid of my
four[-]wheeler when we got this because it’s safer. He felt it was
safer.
Q: So you had a vehicle, a similar type vehicle, prior to this that
you used for the property?
A: I had a four[-]wheeler but it wasn’t like this, it was like a
regular four[-]wheeler that—
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3 In the interest of thoroughness, we note that, at the outset of Randello’s
testimony in this matter, Executor raised an objection to her competency as
a witness under the Dead Man’s Act (“Act”), 42 Pa.C.S.A. § 5930, which,
generally, renders a witness incompetent to testify where: (1) the decedent
has an interest in the matter at issue; (2) the interest of the witness is adverse
to that of the decedent; and (3) the right of the decedent has passed to a
party of record who represents the decedent’s interests. See In re Estate
of Rider, 409 A.2d 397 (Pa. 1979). The court noted the objection and
permitted Randello to testify, subject to a final ruling after briefing on the
issue by the parties. See N.T. Hearing, 6/13/19, at 44 (“I’m going to let her
testify subject to your objection and if there’s some kind of a[n] exception,
fine, if not, it’s going to be stricken.”). On September 17, 2019, the Orphans’
Court issued an order finding Randello competent to testify under the devisavit
vel non exception to the Act, which provides that “witnesses are competent to
testify in disputes arising over the passage of property, through will or
intestacy, although their testimony might otherwise be rendered incompetent
through operation of the general rule.” In re Estate of Janosky, 827 A.2d
512, 516 n.3 (Pa. Super. 2003). As Executor has not challenged the court’s
ruling on appeal, we do not address its propriety herein.
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Q: And did you use that to do the same thing that you did with
this?
A: No, I couldn’t because it didn’t have the bed on the back to
haul my things around. And then when I decorate at Christmas
with my lights and stuff, I always load everything up in the back
in that, so I don’t have to run back and forth to the house.
Q: And this was purchased in 2010?
A: I believe so.
Q: [] And since that time you’ve been using that—
A: Yes.
Q: —at this property?
A: It’s never left our property.
Q: And page 2 is a Kubota ZD331 diesel. Do you see page 2?
A: That’s our lawn mower.
Q: And can you—and it looks like that was purchased in 2012?
A: Yes.
Q: And tell me how that was used?
A: We used that to mow the grass. I have a John Deere tractor
and I had a bigger tractor, but I sold that when we got—we got
this because it made it easier to mow the grass. With just the
John Deere it would take me six and a half to seven hours. And
Paul got this so then my brother helped me, and then eventually
he got somebody from Heller’s to come down and help me to get
it done in half the time. And we still use that today.
Q: Okay. So that was used for the property?
A: Yes, ma’am.
N.T. Hearing, 12/27/19, at 4-5 (unnecessary capitalization omitted).
The court’s finding that Decedent purchased the machines as a gift for
Randello to replace older machines that she had previously used to maintain
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her property is fully supported in the record. Accordingly, we can discern no
abuse of discretion in the court’s determination. In re Fiedler, supra.Executor next claims—based again on the terms of the Agreement—that
the Orphans’ Court erred in finding that approximately 1,400 bottles of wine
and wine racks passed by operation of law to Randello. Rather, Executor
asserts that, because Decedent purchase the wine with his separate funds,
both before and after the marriage, the wine and wine racks are the property
of his estate. Executor also notes that Randello did not list any wine or wine
racks as her own separate property on the financial disclosure attached to the
Agreement, and did not identify it as “joint property” in the Stipulation.
Accordingly, she has waived any claim to them.
The Orphans’ Court, relying on DiFloridio v. DiFloridio, 331 A.2d 174(Pa. 1975), concluded that the wine and wine racks were entireties property
that passed to Randello upon Decedent’s death. In DiFloridio, the Supreme
Court of Pennsylvania disavowed the then-prevailing common-law
presumption of “husband’s ownership.”4 Instead, the Court held that:
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4 “‘Husband’s ownership’ was inspired by the marriage entity concept existing
prior to the adoption of the Married Women’s Property Acts of May 23, 1887,
P.L. 170 and June 8, 1893 P.L. 344 Sec. 1 (48 P.S. s 31).” DiFloridio, 331
A.2d at 178.
The marriage entity concept refers to the belief that “(b)y
marriage the husband and wife are one person in law.’ 1 W.
Blackstone Commentaries. Since the husband was considered the
lord and master of his wife, all personalty acquired by her during
(Footnote Continued Next Page)
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for the purpose of determining title of household goods and
furnishings between husband and wife, the property that has been
acquired in anticipation of or during marriage, and which has been
possessed and used by both spouses, will, in the absence of
evidence showing otherwise, be presumed to be held jointly by
the entireties.
Id. at 180. In light of the holding in DiFloridio, and crediting Randello’s
testimony at the December 27, 2019 hearing, the Orphans’ Court concluded
that:
[t]hese bottles of wine were owned by the Decedent and Randello
to be used for gifts or simply [to be] consumed by the parties.
They were not vintage wine or collectibles. Indeed, it was a lot of
wine. But these people had a lot of money and bought a lot of
items for use in their house. This was wine to be consumed from
time to time by the parties or their guests, [or] taken to a friend’s
house as a dinner or party gift. The wine was a consumable and
household goods. Although there was a great deal of wine, it is a
consumable like many other items that the parties may have had
in their pantry or refrigerator or freezer. It was possessed and
used by both parties.
Orphans’ Court Opinion, 6/11/20, at 5.
Executor argues that the court’s reliance on DiFloridio is misplaced, as
the Agreement and Stipulation constitute “evidence showing otherwise,”
which the court failed to properly consider. Specifically, Executor asserts that
the Agreement evidences both parties’ intent that any property purchased
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marriage belonged to her husband, while that acquired by the
husband was solely his. See 102 U. of Pa. 258 (1954)[,] citing 2
F. Pollock and F. Maitland, The History of English Law, 405, 427
(2d ed. 1898) and Du Pont v. Du Pont, [] 98 A.2d 493, 494
([Del. Ch.] 1953).
Id. at 178 n.9.
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with the separate funds of either of the parties remained that party’s separate
property, to which the other party waived any claim. Executor refers to
sections 3.02, 3.03, 3.06, and 4.04 of the Agreement, see supra at 1-2, and
argues that
[I]ncome generated during the marriage remains the separate
property of the party that generated the income[.] [See] § 3.02.
Property acquired during the marriage with the separate property
of one party shall remain separate property. [See] § 3.03.
Accordingly, property acquired during the marriage with income
generated by [Decedent] remains his separate property.
...
Randello did not list any interest in any wine collection and wine
racks on her Financial Statement in the [] Agreement and was
clearly aware of the Decedent’s wine collection at the time the []
Agreement was signed. Section 2.02 of that agreement
specifically states that each party is familiar with the personal
property of the other since they lived together for five years prior
to the marriage. Moreover, Randello did not identify the wine as
“joint property” in the [] Stipulation that was executed one month
before [Decedent’s] death.
Brief of Appellant, at 26-27 (emphasis in original; citation to reproduced
record omitted). Executor is entitled to no relief.
We agree with Executor that the Agreement generally makes it clear
that the parties intended separate property to remain separate property.
However, as discussed above, the Agreement also contemplated that one
party could make gifts to the other party. See Agreement, supra, at §§ 3.03,
6.05. Such was the case with the wine and wine racks.
Here, Randello testified as follows:
Q: And how did you come to have . . . this wine rack system?
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A: Every year we went to Napa Valley. That was like Paul and
[my] vacation before we went to Safari International Show.
...
Every year Paul and I would go to the hunting shows like Safari
International. We always book[ed] a trip to the wineries, and so
we would go to different tastings and then Paul would get us into
the wine clubs, we got free tastings when we went back. And if
we liked the wine[,] we would get it.
Q: And that[] wine then was at your home?
A: Yes.
Q: And what did you do with the wine?
A: We drank it, we entertained, we gave it away for gifts for
Christmas, for Thanksgiving. Our company that came over, we
sent wine with them. It was something we enjoyed together.
Q: So you used it just the way people generally use wine when
they purchase wine?
A: I used my wine . . . the way I used my sauce at home, I make
spaghetti.
N.T. Hearing, 12/27/19, at 9-10.
The court credited this testimony—which was not rebutted by
Executor—and concluded that the wine was a household consumable that the
parties enjoyed together and, therefore, constituted entireties property. We
agree. Randello clearly and convincingly testified as to the parties’ mutual
enjoyment and use of the wine as a household good. In re Adoption of
L.J.B., supra. The Decedent did not purchase the wine as an investment, to
be held for its intrinsic value or resold for a profit. Rather, he purchased it to
be consumed by the parties and shared with their friends and family. While
Decedent purchased the wine and wine racks with his separate funds, he did
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so for the benefit of both parties. See In re Hillegass’ Estate, supra; see
also Lanning, supra. Thus, we conclude that the Decedent’s purchase of
the wine and wine racks constituted a gift of household goods to the marital
unit, which passed to Randello upon Decedent’s death.
We will address Executor’s final two claims together, as they both
concern the ownership of the Craig Bone paintings. Executor asserts that the
Orphans’ Court erred in finding that the paintings passed to Randello by
operation of law upon Decedent’s death, based solely on Randello’s
uncorroborated testimony that she paid Decedent for half of the purchase
price, despite the fact that: (1) Randello waived any claim to Decedent’s
premarital property in the Agreement, and (2) the Stipulation confirmed that
the paintings were not jointly held assets. Executor is entitled to no relief.
Here, Randello testified as follows regarding the parties’ joint ownership
of the artwork:
Q: [C]an you just describe for the [c]ourt the circumstances of
the purchase of these pictures?
A: The first one is one on I think it’s the left, it’s called [“]The
Eden.[”] When Paul and I were in—at the [S]afari [I]nternational
show in either Reno or Vegas, Craig Bone, we bought the painting
from him.
Q: So you were together in Las Vegas when you bought this?
A: Yes. It was our first purchase that we ever bought together.
I paid him cash for half of it and he used his credit card.
Q: So it’s your testimony that he charged this amount. . . . So
that $50,000 he paid on his card, you gave him cash for half?
A: Yes, but he doesn’t carry that kind of money with him. He
wouldn’t have taken that kind of money with him.
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Q: And where did they hang from the date of their purchase?
A: We put them in the trophy room downstairs and had an
electrician do the lighting to go across it.
Q: And that was January 25th of [20]08?
A: Yes.
Q: The next page is page seven and that’s—that picture is
[“]Earth, Wind and Fire[”]?
A: We both loved that painting and we told Craig Bone[, “I]f
you’re not going to give us a painting, we’re not going to get those
pictures.[”]
Q: So you bargained for additional?
A: So he gave it to us as a gift, yes. I had a picture of Craig Bone
with Paul and [me] with the painting that they painted [be]cause
it was an original print.
Q: So at that—on that trip you got essentially the three paintings,
two you paid for?
A: And the other one was a gift.
Q: One thrown in for part of the deal, so to speak?
A: Yes. He did that for Paul and [me], yeah. And we have a
picture with him.
N.T. Hearing, 12/20/19, at 206-08.
A witness’ testimony may support a finding of clear and convincing
evidence if the witness is found to be credible and the evidence offered is
based upon “distinct personal knowledge of the relevant facts, undecayed by
time and untainted by the corrupting influences of bias or suggestion.”
Matter of Larsen, 616 A.2d 529, 532 (Pa. 1992). In this case, the Orphans’
Court found Randello’s testimony to be credible and concluded that the parties
owned the Craig Bone artwork jointly. See Orphans’ Court Opinion, 6/11/20,
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at 4. The court’s conclusion is supported by the record. Accordingly, the court
did not err or abuse its discretion in finding that Randello was entitled to the
paintings. See Fiedler, supra.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/08/2021
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