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Home My WebLink About06-05-09IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION In re: The Estate of Richard L. Heckendorn, deceased, Late of Upper Mifflin Township ACTION FOR ~.,., DECLARATORY JMEN~ -_, ---- ~ ~ .> No. 2005 - 0877 ~> ~-- ~'= c ~ v~ ', ,^ PETITION FOR DECLARATORY JUDGMENT ' ~-' ~_-~, ~_ - PURSUANT TO 42 Pa. C.S. ~ 7535 (2) and (3) J = ~ ~ -~ -`' c.~ C7 AND NOW COMES, the petitioner, Yvonne K. Wheeler, Co-Administratrix, C.T.A. of the Estate of Richard L. Heckendorn, and asks the Court for a determination of rights in respect to the within estate and as to certain questions of construction of the decedent's will, pursuant to 42 Pa. C.S. § 7535 (2) and (3), stating in support, as follows: 1. Richard L. Heckendorn ("the decedent") died September 23, 2005 a resident of Upper Mifflin Township, Cumberland County, Pennsylvania. 2. The petitioner is Yvonne K. Wheeler, formerly Yvonne K. Malloy. 3. The respondents are Kimberly Hensel and Brett Heckendorn, the decedent's only children, both adults. 4. The decedent left a Last Will and Testament, executed May 29, 2004 and formally acknowledged May 13, 2005, which was accepted into probate by the Register of Wills for Cumberland County on October 3, 2005. (A copy of the Will is attached as Exhibit "A.") 5. The decedent's Will, composed in informal and idiomatic language, was evidently a homemade document, and no personal representative was explicitly appointed. 6. The Register of Wills issued Letters of Administration, C.T.A., to the petitioner and both respondents. 7. The petitioner and the respondents have been unable to resolve their disagreements as to questions of interpretation and as to the apportionment of inheritance taxes. 8. The decedent owned at the time of his death, inter alia, his residence and an adjacent lot. 9. The residence was specifically devised to the petitioner by the following language: "The love of my life Yvonne I want to get the house and its contents." 10. The said devise was conditioned on the petitioner surviving the decedent by the following language: "As long as Yvonne is living she keeps the house." 11. In the foregoing provision the decedent used the common vernacular expression "as long as" not to denote a period of time, but in the sense of "if' or "provided that-," to express the conditional. 12. The will provided for the possibility that the petitioner and the decedent would be killed in a common disaster: "In the event Yvonne passes away also then the house is to be sold and divided between Brett, Kim, Norman and Jenny." Norman and Jenny are the petitioner's children. 13. The will also contains the following precatory language: "If [Yvonne] decides to sell the house then she should give Brett & Kim each $25,000 after the sale ...." 14. The respondents have variously argued that (a) the foregoing language is mandatory, not precatory, and (b) that they each must be paid $25,000 before they would execute a fiduciary deed conveying the devised residence to the petitioner. 15. After an absolute devise has been made, no precatory words of the testator to his devisee can defeat the estate previously granted. 16. With respect to the lot adjacent to the decedent's residence, the will provides: "The land beside the house can be sold and the proceeds I want to go to all the grand children." 17. The decedent and the petitioner were domestic companions for thirty (30) years and participated in raising one another's children, who are twice addressed as a group in the will, for example: "I want Brett, Kim, Norman & Jenny to help Yvonne in any way to take care of all my arrangements." 18. The respondents have unreasonably maintained that "all the grandchildren" should be read not as "all of the grandchildren," but as "both of ~ grandchildren," including only Kim's two children to the exclusion of Jenny's children. 19. The decedent's residence comprises an attached garage, but the respondents have unreasonably maintained that "the house and its contents" excludes the contents of the attached garage. 20. The will contains no directions as to the source of payment of inheritance taxes. 21. 72 Pa. C.S. Section 9144 dictates that the tax should be paid from the residue, but the respondents unreasonably deny that the petitioner is entitled to any credit or reimbursement of the $19,500.00 she advanced to the estate to pay inheritance taxes. 22. Respondents have unreasonably refused to execute in their fiduciary capacity title to transfer ownership of decedent's motorcycle to the petitioner, despite the fact that the motorcycle was among the contents of the house bequeathed to the petitioner, and despite the fact that petitioner paid $6,850 to the estate pursuant to the parties' agreement, in consideration for the transfer of title. 23. Petitioner should also be credited $2,406.25 for cash paid by her to the estate to purchase decedent's half interest in a Buick owned in common by the petitioner and the decedent. 24. The Respondent, Brett Heckendorn, should be directed to pay the full value for one of the decedent's motorcycles, which was bequeathed to the petitioner as part of the contents of the house, and for which the respondent, Brett Heckendorn, paid only one-half value. WHEREFORE, the petitioner respectfully seeks a declaration of her right to fee simple title to the decedent's residence and its contents, an order directing the respondents to execute in their fiduciary capacity a deed to convey the said residence and any vehicle titles or related documents required to transfer any contents of the decedent's house bequeathed to the petitioner, and such other relief as maybe appropriate. Respectfully submitted, Saidis, Flower & Lindsay Dated: June 3, 2009 By: Thomas E. Flower, Esq. S. Ct. No. 83993 2109 Market St. Camp Hill, PA 17011 (717) 737-3405 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION In re: The Estate of Richard L. Heckendorn, deceased, Late of Upper Mifflin Township ACTION FOR DECLARATORY JUDGMENT No. 2005 - 0877 VERIFICATION I hereby verify that the facts set forth in the foregoing petition are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Date: Yvo e K. Wheeler ~0 If you are reading this. letter I have passed on. I love you all and will miss my family and friends. This letter is to inform everyone of my last wishes and want everyone to respect my last will and testament. My love of my life Yvonne I want to get the house and it's contents. I n the event Yvonne passes away also then the house is to be sold and divided between Brett, Kim, Norman and Jenny. As long as Yvonne is -living she keeps the house. If she decides to sell the house then she should give Brett & Kim each $25,000 after the sale and Yvonne keeps the rest and then she can will Norman & Jenny her belongings of what she recieved from me when she passes away. The land beside the house can be sold and the proceeds I want to go to aii the grand children. I want Brett, Kim, Norman & Jenny to help Yvonne in any way #o take care of all my arrangements. I want Yvonne in full control of my checking account to pay the car off and to pay the mower off at Nolt's Engine Repair. There is enough money in the checking to pay for both those items plus pay for my funeral expenses. All my stocks and accounts at The Mony Group in Chambersburg (Betty Lou Hawbaker) has Yvonne, Brett & Kim as Benificiary's, so you will have to call her for. that money. I would Like to give my Moth.e~ (Dorothy) my Money Market Account for her to pay for wash & sets plus her perms at Helen Wagner's or wherever she wants to go. My Mother Dorothy) put me & my brother Michael's name as owner's of her home and it is stated that in the event of my death my share of the house shall go to my children Brett & Kim. Any other money that I should recieve from my Mother's Estate I would like to go to Yvonne. My brother Michael) can have all my Shotguns and Pistols.) hope this sounds fair to everyone. I Love You All ll~ ~~'~ ~ ~r ~ ~~ ' ~~ r._./. ,r } C~- , frll '~C'€it4~t16t~. ~~~u.. aC3~~~'F1;i:6ie~i't~`;~,. ~i:e~~Cs~4i~'6G~ ~r~~~Tr~ e i..~. t ~} ~%C?`'~e{`epN:~s:M:t 9~`„.'`-s`sf'G'ar'.' t~"~y'. ~~ ~U:.Ck.~ R CERTIFICATE OF SERVICE On the ~'"~ day of ~~- , 2009, I, Thomas E. Flower, Esquire, of the law firm of SAIDIS, FLOWER & LINDSAY, hereby certify that on this date a copy of the attached document was served on the following individuals, via first class mail, postage prepaid, addressed as follows: Karl E. Rominger, Esq. 155 South Hanover St. Carlisle, PA 17013 Counsel for Respondents Harold S. Irwin, III, Esq. 64 South Pitt St. Carlisle, PA 17013 Counsel for all co-administrators in their fiduciary capacity SAIDIS, FLOWER & LINDSAY Thomas E. Flower, Esq. Supreme Court ID No. 83993 2109 Market Street Camp Hill, PA 717-737-3405