In Re: Estate of Leroy Bryan, Appeal of: Bryan, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: ESTATE OF LEROY BRYAN, : IN THE SUPERIOR COURT OF
DECEASED : PENNSYLVANIA
:
:
APPEAL OF: PATRICK BRYAN, :
EXECUTOR :
:
:
: No. 1498 WDA 2017
Appeal from the Order September 19, 2017
In the Court of Common Pleas of Fayette County Orphans' Court at
No(s): No. 26-11-0418
BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 20, 2018
Appellant, Patrick Bryan, appeals from the order entered on September
19, 2017, directing Appellant, as executor of Leroy Bryan’s estate, to convey
title and interest in mineral, oil, and gas rights to beneficiaries of the estate.
We vacate the order.
We briefly summarize the facts and procedural history of this case as
follows. On January 22, 2010, Leroy Bryan, executed his last will and
testament (without the benefit of legal counsel), naming three primary
beneficiaries, Appellant, Lois Bryan (Appellant’s widowed sister-in-law), and
Jeannette Hariharan (Appellant’s sister). Leroy Bryan died on May 11, 2011
and Appellant was named executor on May 31, 2011. Thereafter, Appellant
transferred land and mineral rights from the estate to a limited liability
company wherein Appellant was the sole shareholder. On September 6, 2016,
Appellant filed a petition for adjudication/statement of proposed distribution.
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* Retired Senior Judge assigned to the Superior Court.
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On October 5, 2016, Lois Bryan filed objections. The trial court held a hearing
on November 3, 2016. On September 19, 2017, the trial court entered the
subject order directing Appellant to, inter alia:
execute the necessary [d]eed to identify the property as contained
in the [w]ill of the [d]ecedent, Leroy Bryan, and to fully convey
the right, title, and interest in and to the mineral, oil, and gas
rights in and underlying the subject property unto the heirs of the
estate. The deed shall contain specific language that the
percentage ownership interest in the mineral, oil and gas rights
are conveyed outright unto the heirs, and their successors or
assigns. All mineral, oil and gas rights other than the Leighty Well
are to be conveyed to the heirs as follows: Patrick Bryan [-]
37.5%[;] Jeannette Hariharan [-] 31.25%; and, Lois Bryan [-]
31.25%. All mineral, oil and gas rights and royalties related to
the Leighty Well will be conveyed as follows: Patrick Bryan [-]
45%; Jeannette Hariharan [-] 27.5%; and, Lois Bryan [-] 27.5%.
Trial Court Order, 9/19/2017, at 3 ¶11. This timely appeal resulted.1
On appeal, Appellant presents the following issues for our review:
1. Did the [trial c]ourt commit an error of law in finding that a
devise of an income stream to an individual was, in fact, a
devise to that individual and [to her] successors and assigns?
2. Did the [trial c]ourt commit an error of law in finding that the
devise of product and royalties was, in fact, a devise of full
ownership in the subsurface interest?
Appellant’s Brief at 8.
Initially, we note that Appellant presented the above-listed issues in his
Rule 1925(b) statement and in the statement of questions presented section
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1 Appellant filed a notice of appeal on October 15, 2017. On October 19,
2017, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(a). Appellant complied
timely on November 13, 2017. The trial court filed a statement in lieu of an
opinion on April 18, 2018.
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of his appellate brief. In the argument section of his brief, however, Appellant
divided his discussion into seven sections in violation of our rules of appellate
procedure. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as
many parts as there are questions to be argued[.”]). Regardless, the seven
sections of Appellant’s argument present various supportive contentions
relating to the two preserved, appellate issues challenging the trial court’s
interpretation of Leroy Bryan’s will. Thus, we will examine them in a single
discussion.
Appellant challenges the trial court’s interpretation of “paragraph two of
the subject will” which addresses “distribution of royalties from the subsurface
[oil, gas, and mineral] interest[s] in a farm.” Appellant’s Brief at 11. That
paragraph states:
I also will the farm land of approximately 34 acres to Patrick[,]
but you must promise Jeanette and Lois that you will never sell it.
Pat, don’t ever sell this land. It could be the salvation for this
family during hard times. You could sell lots along the road
(min[u]s the mineral rights) but only to family members. The land
also contains all the mineral rights which I was smart enough to
obtain. I was one in a million able to do this. Vicky and several
lawyers told me that I would never get the gas rights and well.
Gas obtained from the Leighty well now producing gas, Pat will
share it with Jeanette and Lois on this basis. I will the following:
Pat 60%[,] Jeanette 20%[,] and Lois 20%. Pat will provide proof
of sale. Pat [receives] the higher rate because of his work with it
and paying the taxes. If gas is obtained from the Marcellus or any
other seam or method, then Pat will share the royalty from those
sales. Those percentages will be as follows: Pat = 50%, Jeanette
= 25%, [and] Lois [=] 25%. If at the end of the year it is deemed
that Pat is paying more than 20% in taxes, then adjustments in
Jeanette[’s] and Lois[’] income should be made. I’m doing the
farm this way because I cannot will the farm to all of you because
then it could become owned over time by many heirs and
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eventually become worthless. There [are] more seams of gas
below the Marcellus and some day probably will be extracted. This
is my legacy to you all.
Last Will and Testament of Leroy Bryan, 1/22/2010, at 2.
Appellant contends that the trial court erred in its construction of the
quoted language. Specifically, he claims that the decedent clearly intended
“that [Appellant] was to own both the surface and subsurface interests and []
that the farm be kept intact (except for limited sales of specific lots to family
members).” Appellant’s Brief at 12. Appellant claims, “[the d]ecedent
specified that his income stream(s) be divided among his son, his daughter,
and his daughter-in-law.” Id. at 13. He further argues that, “[d]ecedent’s
direction that the distribution of royalties be varied based upon the source of
the royalties can be implemented only by distribution of the income during the
lives of the beneficiaries.” Id. at 15. Appellant claims that Leroy Bryan
expressed no intention of separating surface and subsurface interests in the
land. Id. at 16. Appellant suggests “the [c]ourt below transformed the
specific bequests of shares in the various income streams (with varying
distribution shares) into bequests of fee simple title [and, thereby], extended
the lifetime gift of income to [the] heirs, successors, and assigns [of
designated beneficiaries, Lois Bryan and Jeanette Hariharan.]” Id. at 19.
Our standard for reviewing an Orphans' Court findings is deferential:
The findings of a judge of the [O]rphans' [C]ourt division, sitting
without a jury, must be accorded the same weight and effect as
the verdict of a jury, and will not be reversed by an appellate court
in the absence of an abuse of discretion or a lack of evidentiary
support. This rule is particularly applicable to findings of fact which
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are predicated upon the credibility of the witnesses, whom the
judge has had the opportunity to hear and observe, and upon the
weight given to their testimony. In reviewing the Orphans' Court's
findings, our task is to ensure that the record is free from legal
error and to determine if the Orphans' Court's findings are
supported by competent and adequate evidence and are not
predicated upon capricious disbelief of competent and credible
evidence.
When the [Orphans' C]ourt has come to a conclusion through the
exercise of its discretion, the party complaining on appeal has a
heavy burden. It is not sufficient to persuade the appellate court
that it might have reached a different conclusion if, in the first
place, charged with the duty imposed on the court below; it is
necessary to go further and show an abuse of the discretionary
power. An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the
evidence of record, discretion is abused. A conclusion or judgment
constitutes an abuse of discretion if it is so lacking in support as
to be clearly erroneous.... If the lack of evidentiary support is
apparent, reviewing tribunals have the power to draw their own
inferences and make their own deductions from facts and
conclusions of law. Nevertheless, we will not lightly find reversible
error and will reverse an [O]rphans' [C]ourt decree only if the
[O]rphans' [C]ourt applied an incorrect rule of law or reached its
decision on the basis of factual conclusions unsupported by the
record.
In re Estate of Warden, 2 A.3d 565, 571 (Pa. Super. 2010) (citations
omitted).
Concerning will interpretation, this Court has previously determined:
It is now hornbook law (1) that the testator's intent is the polestar
and must prevail; and (2) that his intent must be gathered from
a consideration of (a) all the language contained in the four
corners of his will and (b) his scheme of distribution and (c) the
circumstances surrounding him at the time he made his will and
(d) the existing facts; and (3) that technical rules or canons of
construction should be resorted to only if the language of the will
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is ambiguous or conflicting or the testator's intent is for any
reason uncertain.
Thus, the primary goal of the construing court is to effectuate the
intent of the testator. In order to ascertain the testamentary
intent, a court must focus first and foremost on the precise
wording of the will, and if ambiguity exists, on the circumstances
under which the will was executed. The words of a will are not to
be viewed in a vacuum, and specific words or phrases will be
rejected when they subvert or defeat the testator's whole
testamentary scheme and divest the bounty from those whom he
obviously intended to benefit. The interpretation of a will is a
question of law, and thus our standard of review is de novo and
our scope of review is plenary.
Murphy v. Karnek, 160 A.3d 850, 861–862 (Pa. Super. 2017) (internal
citations and quotations omitted).
The trial court first recognized that the will did not authorize Appellant
to create a limited liability corporation to manage the royalties from gas and
oil leases on the subject land. Trial Court Statement in Lieu of Opinion,
4/18/2018, at 4. The trial court found that Appellant’s limited liability
company “was not an authorized method of distributing the gas royalties
[under the will] because it would leave the other heirs, Jeanette and Lois, with
no enforceable property interest in future wells.” Id. at 5. Instead, “it was
[the trial] court’s interpretation that the testator intended a permanent
division of the future gas royalties, and that the only way to effectuate that
intention was to treat it as a devise of real estate [to Appellant’s co-
beneficiaries, Jeanette and Lois].” Id. at 3. Thus, the trial court
“determine[d] that a devise of the mineral rights in percentage shares was
the best [it] could do to honor the testator’s poorly drafted amateur will.” Id.
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at 4. Moreover, the trial court noted that it appeared that the decedent
wanted to treat all three heirs equally, despite a specific devise of $50,000.00
to Appellant as executor (as set forth in another, uncontested provision of the
will) and a larger percentage of oil and gas royalties for Appellant to pay
“taxes.” Id. at 5. However, the trial court recognized that there were “no
real estate taxes levied on gas in the ground because it is fugacious and
cannot be located or assessed” and that “each heir is fully capable of paying
their own income taxes on their individual share of the royalties.” Id.
(emphasis in original). Thus, the trial court slightly modified the percentage
of royalties Appellant was to receive, with him still receiving a larger
percentage of royalties than the other beneficiaries.2 Id. at 5-6. The trial
court concluded that its interpretation of the subject will “was the result of a
concerted effort to follow the intentions of the testator without blindly
accepting [Appellant’s] selfish and unfair interpretation.” Id. at 6. Upon
review, we discern the trial court erred in construing the subject will.3
Here, the will unambiguously provides that Appellant was to receive sole
ownership of the farm property and its subsurface mineral rights. There is no
dispute that Appellant was to receive “the farm land of approximately 34 acres
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2 None of the parties challenges the percentages allocated by the trial court.
3 Initially, we note that the trial court did not cite any legal authority in
support of its order or subsequent statement in lieu of an opinion.
Nevertheless, from our examination of the record and applicable law, we are
able to address thoroughly the issues raised on appeal.
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deed[ed] to [Appellant].” Last Will and Testament of Leroy Bryan, 1/22/2010,
at 2. The will directs that Appellant receive the land, with the proviso that he
promise to Jeanette and Lois that he would not sell it. The decedent
unequivocally states that he did not want the property to be diluted or
subdivided over time by subsequent heirs. The will then states that “the land
also contains all the mineral rights[.]” Id. (emphasis added). When all of
the provisions are read in conjunction, the decedent clearly gave Appellant all
of the farmland, which also contained the subsurface mineral rights. The
specific language twice directing that Appellant share the royalties generated
with Jeanette and Lois, and provide them with proof of sales, further supports
such interpretation. When read together, the unambiguous provisions of the
will gave Appellant sole ownership interest in the surface and subsurface of
the deeded property.4 There is simply no language in the will that suggests
the decedent intended to devise separate ownership interests in the mineral
estate to Jeanette and Lois. Accordingly, the trial court erred when it
determined that the testator intended a permanent division of future gas
royalties that required a distribution of separate ownership interests to
Appellant, Jeanette, and Lois. In short, the trial court’s assessment was
contrary to the testator’s intent, as gathered from the plain, unambiguous
language of the will and the scheme of distribution thereunder.
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4 As such, we reject the trial court’s contention that Leroy Bryan “want[ed]
to treat all three heirs [(Appellant, Jeanette, and Lois)] equally[.]’ Trial Court
Statement in Lieu of Opinion, 4/18/2018, at 5.
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In turn, the trial court erred by amending the royalty percentages
allotted to the three named beneficiaries. The testator provided clear and
unambiguous direction that Appellant was to receive 60% of the proceeds
(with the remaining 40% to be split by Jeanette and Lois) from a well already
producing gas, designated as the Leighty well. With regard to future, yet
unknown royalties obtained by other extraction methods, the will directed that
Appellant receive 50% of them and that Jeanette and Lois are each to receive
a 25% interest. While the will further directs Appellant to make tax
adjustments to royalties to Jeanette and Lois as he deems necessary, it is of
no moment if the decedent was mistaken as to whether real estate or income
taxes apply to the individual shares of the royalties. Since future tax
adjustments are speculative at this stage, it is premature for the trial court to
adjust the allotted percentages on its perceived notions regarding potential
tax consequences. Instead, the three named beneficiaries are entitled to their
plainly delineated percentage of gas and oil royalties as clearly set forth in the
will.
Moreover, it was erroneous for the trial court to determine that, without
dividing the property, Jeanette and Lois would have no enforceable future
interests in the oil and gas royalties. Upon review of the record, the trial court
held a hearing on objections to the proposed distribution on November 3,
2017. Counsel for Appellant stated that Jeanette and Lois have “received
their specified percentages of the royalties and the signing bonus that was
received [and that Appellant was] not holding those funds, they’ve been
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distributed.” N.T., 11/3/2016, at 17. Jeanette and Lois did not dispute their
receipt of royalties. When the trial court stated its disapproval of Appellant’s
use of a limited liability company to manage the royalties, counsel for
Appellant stated that he “certainly would have no objection to doing it through
a trust.” Id. at 17. The trial court rejected that notion, stating, “the [w]ill
doesn’t talk about a trust.” Id. The trial court then opined that there “are
only two options that [] are normally [available in the] distribution of an
estate[:] leave [the property] in the [e]state or [] make a deed.” Id. We
conclude this was in error.
As previously discussed, the plain language of the will states that
Appellant must share oil and gas royalties with Jeanette and Lois and provide
them with proof of production sales. The language appears to create a trust.
See In re Church Of St. James The Less, 888 A.2d 795, 809 (Pa. 2005),
citing RESTATEMENT (SECOND) OF TRUSTS § 2 (defining trust as “a fiduciary
relationship with respect to property, subjecting the person by whom the title
to the property is held to equitable duties to deal with the property for the
benefit of another person”); In re: Evans' Estate, 93 A.2d 683, 685 (Pa.
1953) (no special form of terminology is necessary to create a trust, “nor is
the absence of the word ‘trust’ controlling”). We have previously determined:
if the trustee commits a breach of trust, he is chargeable with (a)
any loss or depreciation in value of the trust estate resulting from
the breach of trust; or (b) any profit made by him through the
breach of trust; or (c) any profit which would have accrued to the
trust estate if there had been no breach of trust.
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Dentler Family Trust, 873 A.2d 738, 745 (Pa. Super. 2005), quoting
Restatement (Second) of Trusts § 205).
Moreover, a court may impose a constructive trust as an equitable
remedy to prevent unjust enrichment. See Moreland v. Metrovich, 375
A.2d 772, 776 (Pa. Super. 1977). The “theory of constructive trusts does not
require an equity court to find an intention or agreement to create a trust;
instead, a court may impose a constructive trust as a remedy to prevent the
unjust enrichment of one party.” Id. Thus, we reject the trial court’s
suggestion that there were no future equitable remedies available to Jeannette
and Lois.5 Based upon our review, we discern no ambiguity in the language
of the will and, therefore, conclude that the trial court erred in finding as such.
Finally, even if, as the trial court found, ambiguities existed in the will,
the trial court erred in failing to resort to the canons of will construction. A
court should resort to the canons of will construction where the testator’s
intent does not appear with reasonable certainty. See Estate of Houston,
421 A.2d 166, 169 (Pa. 1980).
We have previously determined:
A life estate is defined as an estate whose duration is limited to
the life of the party holding it, or some other person. A life estate
arises when a conveyance or will expressly limits the duration of
the created estate in terms of the life or lives of one or more
persons, or when the will or instrument creating the interest,
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5 We note, as mentioned above, that Jeannette and Lois are not currently
complaining that they are not receiving their allotted percentage of the oil and
gas royalties. We only mention potential avenues of recourse in response to
the trial court’s determination that none is available.
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viewed as a whole, manifests the intent of the transferor to create
an estate measured by the life or lives of one or more persons.
* * *
[T]he use of any particular phrases or words of art is not required
in order to create or reserve a life estate.
In re Paxson Trust I, 893 A.2d 99, 115 (Pa. Super. 2006) (internal citations
and quotations omitted).
Here, the will directs that Appellant receive the property in its entirety
and manage the oil and gas royalties generated therefrom. Jeanette and Lois
are entitled to a percentage of those royalties. While the will does not
specifically state that Jeannette and Lois are to receive “life estates,” there is
simply no reference to their heirs, assigns, or any future beneficiaries.6
Applying the above-quoted canon of will construction, the trial court should
have concluded that the conveyances to Jeanette and Lois were measured
solely in terms of their lifetimes and, therefore, they were entitled only to life
estates in the oil and gas royalties generated from the subject property.
Hence, assuming the will was ambiguous, the canons of construction further
support our interpretation that the decedent intended that Jeanette and Lois
receive life estates in the oil and gas proceeds.
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6 In describing the oil and gas royalties, the will states “[t]his is my legacy
to you all.” The trial court suggests that such language refers to future heirs
of Jeanette and Lois. See Trial Court Statement in Lieu of Opinion, 4/18/2018,
at 3. However, when read in context, the entire paragraph only addresses
Appellant, Jeanette, and Lois. Thus, the “legacy” referred to applies only to
those three named beneficiaries and, the will, read as a whole, supports our
interpretation that life estates were created in Lois and Jeanette.
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Order vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2018
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