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HomeMy WebLinkAbout04-27-10J. A26014/09 NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P. 65.37 IN RE: ESTATE OF HOWARD GALE IN THE SUPERIOR COURT OF MICHAEL J. GALE, HOWARD C. PENNSYLVANIA GALE, III, ELLEN MICHELLE GALE and MELISSA G. GALE LINDEMAN, Appellants No. 1872 MDA 2008 Appeal from the Order entered on September 19 20 ° , in the Court of Common Pleas of Cumberland Co unt,,, o ~' Civil Division, No. 1998-629 ~i~~~ ~ ~' a BEFORE: MUSMANNO, SHOGAN, J]. and McEWEN P.J E r;a? ~ r ;w~ , . . , .. MEMORANDUM: FILED: March 19, 2010 aN' ~' ~-'V ~ _- ~~ ~ ~ o ' Michael J. Gale, Howard C. Gale, III, Ellen Michelle Gale and Melissa G. Gale Lindeman (collectively, "Grandchildren") appeal from the Order entered by the trial court, which denied their Petition for declaratory judgment. We affirm. The trial court summarized the history of this case as follows: The decedent with respect to this estate is Howard C. Gale ["decedent"), who died testate on January 19, 1998, the date of his most recent will having been January 2, 1998. Among his survivors were his spouse of 32 years, ... Julie F. Gale ["Julie"], now 87 years old, a son named Howard C. Gale, Jr. ["Gale, Jr."], from whom he had been estranged for many years, and four children of ["Gale, Jr. ], [Grandchildren]. At the time of his death, the testator was the majority shareholder in two corporations: Howard C. Gale Development Co., Inc., and Country Club Park Development Co., Inc. With respect to disposition of his interest in the first corporation, the third item of the testator's will provided as follows: ~~ J. A26014/09 I give, devise and bequeath my entire interest in the Howard C. Gale Development Co., Inc., to my wife, [Julie] and all of the shares of stock in my name shall be transferred or reissued in her name. Both she and my attorney, Robert J. Trace, Esq. shall determine the future of the Howard C. Gale Development Co., Inc. With respect to disposition of his interest in the second corporation, the fourth item of the testator's will provided as follows: I give, devise and bequeath my entire interest in the Country Club Park Development Co., Inc. to Robert J. Trace, Esq., IN TRUST NEVERTHELESS, with the provision that all of the net income shall be paid over to my wife[,] [Julie], for the remainder of her life and at her death, the Trust shall cease and the principal and the assets reduced to cash and the sum realized shall be divided equally among my grandchildren and step grandchild.... At the time of [decedent's) death, and for many years prior thereto, the first corporation, Howard C. Gale Development Co., Inc. (the [decedent's] interest in which passed to his spouse, [Julie], under the will), had been the owner of various parcels of realty in Cumberland County, Pennsylvania, including the following five Cumberland County properties[,] which are the subject of the present dispute: 6 Fargreen Road, Camp Hill, Pennsylvania; 55 Circle Drive, Camp Hill, Pennsylvania; 22 Country Club Place West, Camp Hill, Pennsylvania; 49 Circle Drive, Camp Hill, Pennsylvania; and 530 Fairway Drive, Camp Hill, Pennsylvania. This corporation, which had been incorporated by [decedent] and two others in 1960, had the following designated corporate purpose: To deal in real estate, building material and supplies including the improvement and development of land, to construct and repair, buy, sell, exchange and /ease dwe/ling houses, apartments and commercial establishments, and to make loans for these purposes. -2- J• A26014/09 Evidence at the hearing on for Declaratory Jud [Grandchildren's frequently, althou nment indicated that ]Petition bein 9h not always, treated the ecedent] had Park9 owned by the second cor prOPerties as Development Co•~ Poration, Countr corporation, Howard Inc•, instead of the Club addition C• Gale Development Co. first [decedents] estranged son testified that c• In to the estrangement wanted the disputed ~ rod ecedent] had told him 'prior On the other hand P P rties to go to his [that] he the com g 'another witness testified thatdcdespite min led and convoluted operations, the testator "had it all n h srhead his business Trial Court Opinion, g/ig/08, at 1.3 (citations o • After muted, em hasis in a hearing on P original). Grandchildren's Petition and the filing of a stipulation of counsel the trial court denied the Petition. Therea Grandchildren filed the instant timel fter, y aPPeal. Grandchildren present the following claims for ou A• Whether the trial court committed an errr review. abused its discretion when it or of law or Petition for Declarator denied [Grandchildren's] court] determined that decedents nt because latent ambiguity? Will does not ctonta n~ al B• Whether the trial court committed an error abused its discretion when it failed to consider evidence that su of law or PPorted [Grandchildren's extrinsic C• Whether the ]Petition? abused its trial court committed an Petition for Declarator when it error of law or denied [Grandchildren's] was sole shareholder Judgment even thou h consistently treated pis in two 9 decedent corporations and he titled to one cor Puted Properties as if the deeded to anothe poorPo at onlough the y were properties were D• Whether the trial court abused its discretion committed an error of law or when it denied [Grandchildren's] -3- J. A26014/09 Petition for Declaratory Judgment even though decedent's estate and his widow consistently treated Disputed Properties as if they were titled to one corporation although the properties were deeded to another corporation? E. Whether the trial court committed an error of law or abused its discretion when it denied [Grandchildren's] [P]etition for Declaratory Judgment because overwhelming and uncontroverted evidence supports [Grandchildren's] contention that the disputed properties should be treated as assets of Country Club Park Development Company, Inc.[,] and devise[d] to [decedent's] grandchildren and step[-) grandchild under his will as he intended? Brief for Appellants at 2. Initially, we note our standard of review: 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 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. However, we are not limited when we review the legal conclusions that Orphans' Court has derived from those facts. In re Estate of Pie/d, 953 A.2d 1281, 1286 (Pa. 2008) (quoting In re Estate of Cherwinski, 856 A.2d 165, 167 (Pa. Super. 2004) (citation omitted)). -4- J. A26014/09 Grandchildren first claim that decedent's will contains a latent ambiguity. Brief for Appellants at 9. According to Grandchildren, the trial court improperly determined that no latent ambiguity existed. Id. Specifically, Grandchildren assert that the ambiguity arose in the following two ways: 'the deeds to the Disputed Properties are not in the name of Howard C. Gale Development Company, Inc., and [decedent]-sole shareholder of all three entities involved in this dispute-devised his entire interest in Country Club Park Development Company, Inc. to his grandchildren and step[-]grandchild, and his entire interest in Howard C. Gale Development Company, Inc. to his widow." Id, at 10 (emphasis in original). According to Grandchildren, the deeds to each of the Disputed Properties list Country Club Park Inc. as the grantee and not Howard C. Gale Development Company, Inc., its successor in interest. Id. Because of the similarity of names between Country Club Park Inc. and Country Club Park Development Company, Inc., Grandchildren assert that the real possibility of ambiguity exists. Id, at 11. There are two types of ambiguity: patent and latent. In re Wi/ton, 921 A.2d 509, 513 (Pa. Super. 2007). The difference between patent and latent ambiguity has been described as follows: A patent ambiguity appears on the face of the [document] and is a result of defective or obscure language. A latent ambiguity arises from collateral facts which make the meaning of a written [document] uncertain, although the language appears clear on the face of the [document]. To determine whether there is -5- J. A26014/09 an ambiguity, it is proper for a court to hear evidence from both parties and then decide whether there are objective indications that the terms of the [document] are subject to differing meanings. Id, (quoting Krizovensky v. Krizovensky, 624 A.2d 638, 643 (Pa. Super. 1993) (describing ambiguities in a contract)). "Where a latent ambiguity exists we have repeatedly held that parol evidence is admissible to explain or clarify the ambiguity, irrespective of whether the latent ambiguity is created by the language of the Will or by extrinsic or collateral circumstances." Wi/ton, 921 A.2d at 513 (citations omitted). However, in In re Estate of Harper, 975 A.2d 1155 (Pa. Super. 2009), this Court reiterated that "[a]n ambiguity in a will must be found without reliance on extrinsic evidence; extrinsic evidence is admissible only to resolve, not create, an ambiguity." Id, at 1162 (citing In re Mcfar/ape's Estate, 459 A.2d 1289, 1291 (Pa. Super. 1983), in turn citing In re Estate of Ke//y, 373 A.2d 744 (Pa. 1977)). There is nothing ambiguous about the language in decedent's will. As the trial court stated in its Opinion, the subject matter of [decedent's] gifts in the third and fourth items of his will-his interests in two extant corporations, respectively-was in existence, as were the designated recipients of the gifts. The language of the disposition utilized by the [decedent] to those recipients was clear and unambiguous. At most, it can be said that, had the testator been more conversant with the details of his estate, he might have written a different will-an observation that could probably be applied to many testators. -6- J. A26014/09 Under these circumstances, it can not be said that the third and fourth items of the [decedent's] will contain latent or patent ambiguities which would permit the court tv reform the will on the basis of extrinsic evidence.... Trial Court Opinion, 9/19/08, at 5-6. We agree and conclude that Grandchildren are not entitled to relief on this claim. Grandchildren next claim that the trial court improperly failed to consider extrinsic evidence that supported their Petition. According to Grandchildren, the extrinsic evidence demonstrated that decedent exercised complete dominion and control over all of his properties, "regardless of where the legal titles to any individual properties rested." Brief for Appellants at 14. In addition, Grandchildren direct our attention to testimony by the decedent's son, wife and step-daughter that "either they didn't know of any differences between the entities ... or that [decedent] did not differentiate between the entities." Id, Grandchildren argue that the uncontroverted facts under which the will was executed support the view that an ambiguity existed as to how decedent intended to dispose of the properties in the will. Id. As set forth above, however, our review of the decedent's will discloses no patent or latent ambiguity. Grandchildren rely on extrinsic evidence in an attempt to create an ambiguity. As this Court held in Harper, "[a]n ambiguity in a will must be found without reliance on extrinsic evidence; extrinsic evidence is admissible only to resolve, not create, an ambiguity." Harper, 975 A.2d at 1162. Because Grandchildren rely on -7- J. A26014/09 extrinsic evidence to create an ambiguity, we conclude that their claim lacks merit. Grandchildren's remaining claims rely upon extrinsic evidence to create an ambiguity in decedent's will, rather than to resolve an ambiguity. In their third claim, Grandchildren direct our attention to the Pennsylvania Supreme Court's holding in In re Estate of Greenfie/d, 321 A.2d 922 (Pa. 1974). In Greenfie/d, the Pennsylvania Supreme Court recognized that "[t]he testator's intent must be ascertained by a consideration of the entire will which of course must be read in the light of the circumstances surrounding him when he made it...." Id. at 925. The Pennsylvania Supreme Court recognized the ambiguous nature of the term "my", as used in the testator's will, and ultimately concluded that the trial court erred in not considering extrinsic evidence to resolve this ambiguity. Id. Grandchildren however, rely upon extrinsic evidence to create the ambiguity, not resolve an ambiguity. Similarly, in their fourth and fifth claims, Grandchildren rely on extrinsic evidence to create, rather than resolve, an alleged ambiguity. For example, in their fourth claim, Grandchildren rely upon evidence of how decedent and his widow treated the properties to create an ambiguity. Brief for Appellants at 18. In their fifth claim, Grandchildren assert that the trial court erred in not considering the circumstances surrounding decedent at the time that he executed his will. -8- J. A26014/09 Zd, at 20. Grandchildren attempt to use these surrounding circumstances to create a latent ambiguity. The Pennsylvania Supreme Court has long held that "[e]xtrinsic evidence of surrounding facts cannot be received as evidence of testator's intention independent of the written words employed." In re Estate of Jacobson, 331 A.2d 447, 449 (Pa. 1975). Further, [a] latent ambiguity can exist [only when] necessary to identify the subject matter or object of a devise and if there is in existence a subject or object that satisfies the terms of the will, and to which they are applicab/e, there is no occasion for the introduction of parol evidence, and a doubt suggested by extrinsic circumstances cannot be permitted to affect its construction. To do so would, in effect, amount to changing the will of the testator, and writing a new one for him, rather than interpreting the will of his making." Ke//y, 373 A.2d at 747 (citations omitted, emphasis in original). Here, the words employed by the decedent in his will are clear and unambiguous. Grandchildren's claims rely upon extrinsic evidence to create an ambiguity regarding the decedent's intentions, rather than to resolve an ambiguity. Because the trial court properly refused to consider the extrinsic evidence in order to create an ambiguity, we conclude that Grandchildren's claims of error lack merit. Accordingly, we affirm the Order of the trial court. Judgment Entered. Order affirmed. Deputy Prothonotary Date: March 19, 2010 -9-