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HomeMy WebLinkAbout09-25-14 IN RE: ESTATE OF ROBERT : IN THE COURT OF COMMON PLEAS OF M. MUMMA, : CUMBERLAND COUNTY, PENNSYLVANIA Deceased : ORPHANS' COURT NO. 21-86-398 IN RE: SUPPLEMENTAL OPINION PURSUANT TO PA. R.A.P. 1925 Oler, S.J., September 25, 2014. In this decedent's estate case, appeals have been filed in the Superior Court at Nos. 905 MDA 20141 and 921 MDA 20142 by two beneficiaries from an order of this court dated April 30, 2014, dismissing objections to a final auditor's report? The order appealed from was accompanied by a 28-page opinion. The opinion accompanying the order recounted the almost three-decade history of this estate, replete with obstructions to its administration and settlement occasioned by the more litigious of the current appellants. The opinion discussed most of the issues now being pursued on appeal, and, in the interest of judicial economy, is attached hereto and incorporated herein. The bases for the appeals have been expressed in statements of errors complained of on appeal by appellants as follows: . . . Pursuant to Pa. R.A.P. 1925(b)(4),the errors complained of on appeal by Appellant Barbara M.Mumma are as follows: a.Whether the Trial Court erred in failing to rule at all on certain timely objections to the Auditor's Report filed by Barbara. M. Mumma on September 16, 2013 (Docket No. 780—hereinafter `Barbara Mumma's Objections'). See, e.g., Barbara Mumma's Objections, §6, at pp. 27-39, including but not limited to Barbara _ Mumma's objection that the Trustees breached their fiduciary duty c o rn M by improperly allocating substantial expenses between the Marital ; c> o and the Residuary Trusts, to the detriment of the residuary r n n Cn ;�u beneficiaries.[41 These Objections include cramming expenses into r\3 r zz • r' 'Notice of Appeal of Barbara M.Mumma,filed May 28, 2014. - 2 Notice of Appeal of Robert M. Mumma, II, filed May 29,2014. w n rrr 3 Order of Court,dated April 30, 2014. CD co o co [4] The April 30, 2014 Opinion contains a passing reference suggesting that given the number of objections, only certain objections would be addressed in the opinion with "the less significant or less comprehensible ones being relegated to the auditor's discussion."April 30, 2014 Opinion, at p. 12. Part of the difficulty is 1 Z'A -1 nt VA...)IN';W-C 0 1110') TRT V'T : TA'7_11'103110 AP'PT23 :"M i:IT, A1V'J1A"JY2AAA'11 EEPI M.A.J! J�G. OT 1,;1AU��'Sli '20x- JR tin-j"P 70i-nqu2 -0di ai bt)TTI ln9sd nvnd ei0i si Tv'so:) ndl "R" -Tobno (11; Tric)-il ,4 01,17, 1--,.Q 1"R13 '41 OK A01v" N)Q -it&to wIT) '.1-kop-i a`iolibw; lif.,o3 f) o) ariorjiqdo griia,?iraajb POS OF. finjA balab QIMAT-U V 'e'd 14,j1p,.5qqp. 10 'v-[Weili 12,will'; '-di b5mWown-f-rAno Hol"Pip AT Jq-rffjj))w biw� dlifl wh woff wl."to leout baa,-inAb aoiciqu -AT .2!.-m[1f)qqB xfam Ai 01:0-i9J b%kwI1fi of Mi-Ahj�10 fUg-la"(1i 'jiii ar, "Dar, '13,x1rim" [if) nsi-jr-1 ivj bwv I wrr(�')f I e"OTM)1c) v*i b'd'aao-lqx,�, mA wfirl 21 mqqp, a0i -ml- axn.d w'r -�'Poiff)l an dr, 1k)qqr, vd tnt)qrja nolo -�d !wqqr. aolo vo-a,,. 5;k 0+219r tT A A 6 w tp,,,,-,,,cl uu rrurmiNt It mndv;U 1mJ1::qqA flu RG tT tllLn 01 'fz�"fidmff '11 bvn-�) 1'.1jo:) W-X Aii -iAv)d fl .r. 'Gled.i.."M vd b�JP, Voci, -,'-iw1bjjA will of mojt,Aip t UCIL .t'l I'Almi-jo? riv Frit ul , 11, a aamolo;1 Irl'd-we!' ) wwx*o mr-dw,8 of biluml lon, lud narbijiatm Q�J� q.; mJl, -As Imil not jito[doe"armall. 'J' f.I -r #IT :1 A the Residuary Trust,then making loans from the Marital Trust to the Residuary Trust, improperly inflating the values of the marital trust and charging interest on the loans between the two trusts created by the same estate. See, e.g., Barbara Mumma's Objections at pp. 27-28.The Objections also include misallocating both accounting and legal fees between the Marital and the Residuary Trusts to the detriment of the Residuary beneficiaries. See, e.g., Barbara Mumma's Objections, at pp. 29-36. Moreover, to the extent that the April 30, 2014 Opinion and Order asserts that it validates the Auditor's Report with respect to either the outrageously and grossly excessive,unreasonable and unwarranted legal fees claimed as due by Lisa Morgan as Trustee to the Trusts, see April 30,2014 Opinion at pp. 20-22,the April 30, 2014 Order is error.['] b. Whether,the Trial Court erred in entering the April 30, 2014 Order because the Auditor's Report and the April 30, 2014 Opinion made recommendations which violate the intent of the testator with respect to the distribution of assets to the beneficiaries of the trusts. The Will of Robert M. Mumma provides, in pertinent part, that upon the death of his widow, Barbara McK. Mumma, who died on July 17, 2010, the principal of the trust, as it was then constituted, was to be paid over to his four children, "share and share alike, per stirpes and not per capita." See, e.g., In re McKinney, 67 A.3d 824, 831 (Pa. Super. 2013); In re Hirt 832 A.2d 438, 448 (Pa. Super. 2003)("the that the April 30, 2014 Opinion lumps the multiple objections filed by a different residuary beneficiary, Robert M. Mumma, II, in with the considerably fewer objections filed on behalf of Barbara M. Mumma, to the detriment of Barbara M. Mumma. In fact, as Barbara Mumma's Objections rather clearly point out, the Auditor's report contains no discussion at all of certain of Barbara Mumma's Objections, so there is nothing to which to "relegate"the discussion. Moreover,to the extent that the Opinion suggests that the Objections set forth on pages 27-39 of Barbara Mumma's Objections are either insignificant or incomprehensible, the undersigned respectfully disagrees with the Court and states that the Court's failure to consider these objections constitutes reversible error. The unresolved objections amount to — at a minimum — hundreds of thousands of dollars or even more, and are hardly difficult to comprehend. [5] Paragraph Two of the April 30,2014 Order sets a hearing"[i]n accordance with the auditor's recommendation,"to "determine attorney's fees and costs" for June 25, 2014. To the extent that it may be determined that it is necessary to include in this Rule 1925 Statement the issues relating to the allocation of attorney's fees and costs between the Residuary Trust and the Marital Trust, to the amount of attorney's fees charged to and paid by the trustees, or to the recommendation by the Auditor that Robert M. Mumma II be assessed one half of the fees and costs,to prevent waiver of those issues,then those issues which the Court may or may not address at the June 25,2014 hearing also are herein raised as error for the purposes of preserving the right of appellate review. 2 w JairfT'Irtitri.� :rb mr) zt�rof v;Arnr rx .?a[ri'1' ru;ul)i'r.1SI stff Jl;fi-t:m orif to 2aulNv ;;iii grtiinnni i(z3go�grni ,i2rnT rtcubiaoSl Orli 2t7W-fi 0711 t)11 nowfnd auzol viii no grtig-tedu brv; 12u-tt a'smatufli l;t Ar.:i ,af&fea ams2 oris {d 13ain-ta grt+s::oolluzirn �hiliJni o?It;am it 5td0 arlT .8S-CS .qq jr,umifooi to oilf bur. 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'3l q 25zoq:ucl,-)M Tat atm, 2p r g2im,zr.r9tl vw o0r;-quir et J f ME �Gc wint ili L��a7ri3l's vrJiJo7 -wthiggzlo Idgi-r orlf gnrr um�gfla polestar in every trust is the settlor's intent and that intent must prevail'); Restatement (Third) of Trusts, § 79 (2007). Included in this issue raised as error is the Court's determination that directly contrary and specific language in the Will was "precatory." See April 30, 2014 Opinion, at pp. 13-14.The cases cited by the Court for its determination [e.g., In re Lindsey's Estate, 311 Pa. 536, 166 A. 848 (1933)] have been criticized and distinguished by more recent authority and are at best a small minority view. See, e.g., In re Hand's Estate, 315 Pa. 238, 244, 172 A. 666, 669 (1934)("It is uniformly held that words of recommendation, request, wish or expectation addressed to the executor and used in respect to the direct disposition of the testator's property, are prima facie testamentary and imperative, rather than precatory, in effect, on the ground that, the testator having a .right to make such disposition of his property as he thinks proper, the expression of his wishes is deemed to be the expression of his will, and the request is the equivalent of a command."); In re Rze&Ianowski's Estate, 148 Pa. Super. 361, 367-368, 25 A.2d 600, 603 (Pa. Super 1942). See generally Hunter, et al., Pennsylvania Orphans'Court Commonplace Boob Vol. V, at pp. 155-157 (Second Edition— Revised 1990 & 2013 Cumulative Supp.). Also included in this issue as error is the Court's determination that the testator's intent was only contingent and the Court's apparent conclusion that the fact that the Will contained general language giving broad powers to the Trustees somehow took precedence over the specific expression of the intent of the Testator concerning the distribution of the assets of the Trusts. c.Whether the Trial Court erred in failing to address questions as to how certain of the assets actually were poured into the estates and the trusts created under the Will, including certain assets which apparently were not assets owned by the Testator at the time of his death. There was no determination made by the Auditor that certain of the assets(such as shares of stock in certain corporations) were actually owned by the Testator at the time of his death,and the evidence at the hearing was to the contrary. d. Whether the Trial Court erred in purportedly authorizing actions by the Trustee which exceed the trial court's jurisdiction because they involve corporations and assets of corporations not party to the probate matter, including but not limited to Bobali Corporation, D-E Distribution Corporation,and others. e.Whether the Trial Court erred in sanctioning the Trustee's intended liquidation of real property assets held by various corporations not party to the Orphans' Court proceedings and by two different tenancies-in-common both without regard for the rights of other shareholders and other members of the tenancies and based on the confirmation of accounts which only covered periods prior to July 17, 2010 and which do not account for the most recent four years of activity. 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LGCCu; `Jfllpulljn�JIJg ULr.7j pral � 2111111( 11JftJrlliji.n1r;►t: �cr; c.•`�•• jos V, 848 (ic633)i 1151.0 prcv CLII!crxcq uuq q!zjluSnlzprq pi, 11JOI.G LoL itz grjr.Llinrml?ou -"d" 111 i,.t VvRt n z 1r.WWl ' 311 V1 23V IQp yiJt�l :0' S01-t Cb�u�Ou' ,11 hb 13-i�t• .LPG cs2cz cilcq p?,jllr COn1.t coutwt.t. u jq 2bmiLic 1ui1F-,1n;Rc 111 fpc 1/,!Il it U2 „hies:w0tn , Z,r. 1112 infic wizcq u2 GLLOL 12 tpc C0f14,? gGmu.inuoriou jpJ J1'gltccil: btcAsll„): jp2tritculcin (lln:.q) oL,LLnzr'a' A8 (Si;OA)* luclllgrq iu holurfl. 1u cAGln tui;-,i 12 tpr, zculol.,2 lujsrft uuq i1jur nit.ul umet assets completely distributed,the damage and harm to the interests of the residuary beneficiaries will be permanent and irreparable. f.Whether the Trial Court erred in adopting the Auditor's recommendations concerning the overfunding of the Marital Trust to benefit both the Testator's spouse and one of the beneficiaries, Lisa Morgan, to the detriment of the remaining beneficiaries, thereby breaching their fiduciary duty. See April 30, 2014 Opinion, at pp. 17-20. Included in this issue as error is the Court's comment that"Ms. Morgan could have had as much to lose as the other remainderm[e]n from the putative overfunding." See April 30, 2014 Opinion, at p. 18. The Opinion fails to note that Ms. Morgan is the executrix of her mother's will and, for all practical purposes, the sole (or single largest) beneficiary of her mother's estate. In fact, she had much to gain from the overfunding of the trust. Partiality with respect to beneficiaries, particularly by the Trustees themselves, is improper under Pennsylvania law. See, e.g., 20 Pa. C.S. §7773; In re Holmes Trust, 139 A.2d 548, 552 (Pa. 1958);In re Estate of Hamill, 410 A.2d 770, 773 (Pa. 1980). See also In re Estate of Warden, 2 A.3d 565, 574 (Pa. Super. 2010)("the conscious doing of a wrong because of . . .moral obliquity").The overfunding of the Marital Trust actually operated to the substantial financial benefit of Ms. Morgan, who until July 17, 2010 was co-executrix with her mother of the estates, and following the death of her mother on July 17, 2010, has been the sole Trustee.[¢]' . . .Pursuant to Pa.RA.P. 1925(b)(4), the errors complained of on appeal by Appellant Robert M.Mumma II are as follows: A. The trial court erred in entering its Order of April 30, 2014 in that in many of its holdings the court has allowed the executrices and trustees to totally disregard the intentions of Robert M. Mumma ("Testator) and make no effort to keep the ownership of the closely held stock and other assets within the immediate family. The fiduciaries,['] with the blessing of the trial [6] Following the death of Barbara McK. Mumma on July 17, 2010, her daughter Barbara M. Mumma, was appointed as co-executrix. Since that time, however, Lisa Morgan has taken the position that she may completely ignore her sister's appointment as co-executrix because Ms. Morgan claims that there are no longer any assets whatsoever in the Mumma estates to administer, because they have all been duly distributed either to the Residuary Trust or to the Marital Trust,of which Ms. Morgan is the sole surviving Trustee,although it is not at all apparent from the record how any such assets were transferred into the trusts. 7 Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma,filed June 20, 2014. ['] The term "fiduciaries" is used herein to reference both Barbar [sic] McK. Mumma and Lisa M. Morgan in both their capacities as executrices of the Estate of 4 u:2,lilri Jfl!w (r'rii.ft i. 1'• :_-f;frtEib ylu ~1;.!#!!'141 l i}. 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'. ✓ri1 k, lJrltrlf(1 it'll rUtt:' 11'i1r1 a!ar0:) 7 l: olid, r t ,-a .. � ' .• � 1 .241. ,/'.. .. 1 \ .-. , a. 1 . .. �l Yuri .O W[ .V1 'rhot. rv) 1.mmuCt Aat,� mnd-,3,8:lu flJl;')b Wail ,-tiitiollul 1') 1'3!`.11tJ(l ,,~fill trrfl -'afliC .(til?! i/':s ):3 es, 1,✓1nfur,G±'":. `t'r ! .;if'ffitli'J1. 14 r-i:,y11;1;i 1'✓tztd 'i✓fl ;iit;r,'tl mro :1417 41: court, have totally ignored the Testator's intent, as set forth in the Will, that "[i]t is my desire that if expedient and possible, the businesses which I have personally directed during my lifetime and of which I have had an interest be continued for the benefit of and under the management and control of my immediate family." The trial court's position that this language in the Will is precatory and therefore not binding is not supported by current case law. According to the auditor's report, the parties were getting along and working together until the fiduciaries' decision in 1987 to not sell the quarry operations to Decedent's son, Robert M. Mumma II, at, which time the relationships between the family members began to break down.Not only did the fiduciaries decide to disregard the intent of the Decedent and not convey any of the family business interests to Decedent's family members, they also set out to"squeeze out" (their terminology, not the undersigned's) Robert M. Mumma II from the family businesses. Had the fiduciaries not been allowed to ignore this provision of the Will, in all likelihood most, if not all, of the litigation involving this estate would have been avoided; the auditor would not have had to hold forty days of testimony; the estate would now be concluded; and the estate and family members would have saved millions in legal fees. Finally, in light of the fact that it was the fiduciaries' totally ignoring binding language of the Will that led to the animosity between three of the family members against their sister, the Administrator, it is disingenuous to now suggest that an in-kind distribution of closely held stock and joint tenancy interests to the family members is unthinkable because of the animosity among the family members. B. The Court erred in holding that Robert M. Mumma II, one of the beneficiaries, should "bear the responsibility of one-half of the estate's attorney's fees and for half of the costs of the auditor's proceedings." More so than any of the other beneficiaries, Robert M. Mumma II was very much involved with the Decedent in working with the various family businesses. Although all of Decedent's four children owned stock in various family entities, Robert M. Mumma II and the Decedent were the sole owners of Lebanon Rock. Since Robert M. Mumma II was the only family member to approach the fiduciaries about purchasing a family business from the estate, and since it was Robert M. Mumma II who the fiduciaries decided to "squeeze out" of the family businesses, Robert M. Mumma II was clearly the most affected by the fiduciaries' arbitrary decision to ignore binding language of the Decedent's Will which expressed Decedent's intent that the family businesses remain in the family. Therefore it is understandable that Robert M. Mumma II would passionately protest and challenge the activities of the fiduciaries as they Robert M. Mumma and as trustees of the two trusts established in the Will of Robert M. Mumma 5 I�of�crL,t�• y.�ntrJwtf � x IsOPM y.i• APUJt.l:r uaq u2 iLn2(rx,2 A (Ise trio (Loap c2rlpl zfrcg Its t4rc l3'a11.v4; kofr2i uuq cli`rllcA, 1111: ucgt.41t;z o t}sc {1gncluuCa me tllci ' nugctatmic:fele tP4£l b'opfu vl. I imnux Il mofflq bmziorsulr.l:: -tsunl� pnalu zac? L ilmu Iu tlrc {uuJr}]. JI,IIi;Lclom 14 1z fpc IAlll r1};rcp rrbl.V,,2q l)cccgrut z iufr t 41 pit fpc grmiou to ;la`.rroi.e: p!u-qp)P lu:r n rbc oL 1)17211!,2212' KoP-U, V,• Y1.111Jdtr4;f 11 t4fn rmd?.tlrc ulozf ;1{�r.�ctr:g pi, t.,,yo tl)c t<Ignciuiicz gcclgcg to ,f2dn m onf, r,.1. 5ps LyfJi1}i. lirr2ltscz2 =I ilii c?. tc` uuq 2tucc, j.t H-U.- txtapcLt !& y,fIUJIJrs 11 uarlupci, to ubhuric}I ipc I?gnCr3LlC2 uporri WILC}1iIZIUR tf wail:, rcpulaou Kocs:'. ?iucr, h'opcLt f'3• ypimmu II ups: 1,10 oulr. I.Un1]. T�pcu Yf' Wntulrlu .11'tnsq W; D,c,gcuf imotc rpc 2olc omucu oL 1)ru,,gGut.,2 torrr. clr i%cli orlucq aloc,Y lu mmorr2 l,,uiuil7, cul.pcp: rncy,lrru? tlailr .clic a,:*uorfa 'pn211102m, -y1ponfili ull ob; ,rnf. !k7 'MU 13 11.72 Art). us:iclJ lul:olncg 11.1111 tRs DOC, 'gr.nf lis btocr,;;gl1!&a , 1�loxc zo Tsu s 2) .ot(IIc o(Ir 1. pour. !mica- Nopcu f}sC r..zt:?tr,�2 ut;oLue�.2 y,2hL`q TpL l }boi ipc coati ol;tic ur1 jliol. of iy7 prwc pwsutz' 2por1g „pc:,L .f.7), Lubou2ll pir. oL ouc-11'f 11~of, 13 IX cont.t ct►cg !u polgnr'i tImf-gopou yl• j/+imum Tl' ouc tlsc{;rIu11].auciuper.2' Tsar!}], Ilscuapcta 1z iru }Jain".:Iplc, pccuncc off,!lar, UVIU o V. Sfrrolr ,q!&Upnpoit ol,c}ozrl?,pr;lf z(oc}c uuq joint lonuLrC'1: 1f1(ci.caimz to ipc ' ctsfJlraizfi,i(o 41 t2 ql�uRl imorfa to uotr, 2n0!szr 1pur uu ru-I,Iuq petll.scu ilrL4c o� tfrc 1�tJ.tlfi. uJaiupcLz u�.^}uai t'Jc�s. zbzt�L' tlrc 1R,u01.114" pluq!u? pruilfsuRc of fill-, tA11b tput IN, to fpc uuulfo210, r,!:a f;luxll a' (u Vain q tpc tsci flruf p !nu?tllc T"Igncrtrl.ica. totuil . t}Jr ezt~J(� ;rl1�•I �:xfFji�Ilaculp^L7 11:onlq IJL�n4 2un�;g u1}111t�n2 r!1 Ic��l tat.0. qut,2 q tc quloui, tic cefutc zwtilq lfor,po coucprgacl' uuq 11,onlo }rJhc prrclr unum )r 11 opIloI4 ctilrooqwozfI - ok lrr !bmt oIfpxz c,tstcslt 1Yx , Ir Ligncasur,•z uol pscu nllolrcg to iRuot,.t}11z bto1,121011 atfift"EA111' 1i! Kopful VA, IMMUMM 11 {,Lots! Ilia 1,71sJi1]. pnalucan;. l Tgmr rTpfa ac:t out to .adriccsc ottl,, 6,ty1GIC IJOi(1:�:ftIfgyt2rFiU{g 2� ujing;n ptf2rrrcaz 1ri(cccatz,to pc.^.ci;cut.a 4u1ar1JA usculp,L2'Tpul lrl2o to glzLr.WuLg t1m lutcuf o{;tlm Ipc-,vq ut uuq uo( coivxn-). *run ol;111c, uximp6Le pertro.to pied•,gore it ylo ouli.c}!q Ipc LIgrrcimir2 qvq y,Iflunmu if, ut 1q)(cp lium, (tic t(;ppou?plb{: pegii;r;u tpc {vwO. to !rot 2411 fllc n;rLL'r, o4.7C1:ttl6U2 to DCCCgGu1,2 2011' ISOPCIf N. trtOUR 311(4 .EtoLrIIJFY fO*aG,ffJCL fir:.til. TlG l�C�tnClJsIra, geCimn 1u yc,;oLgfLP. fo 1pr,vug!lor.,a LebOW 411 buLum ricl.c Pct(tur'• uuq(IscLc`otc not p1uglJfP, 1z not zrihbogr;q pi, cnLrcut cuzr, qm- LPG tilul c:otli.(_z I)0zt(roif 1pw t1r!2 lau?,n,.,&c in tyr,*!It r2 bt.ccstoL;,, miq umgrt qrr; mu78cuicut ;nq cogtcol q ure a1uw#;ggq tMip'." uuq OL11.111CIJ I pfr/;C It;lg uu lUt610'it pr COUI 1TS7Gq tot.tp6 pClJOJ!(()L pfl�plczzrrr. rt.lricp I AJrr br.mlmlli. gncctrq pLnffl, uri. 111,ctiwo /x11111' (list Jilt 12 !ur gc2nr, cl)1t 1t o-/br. cut mfg bo2elplr;° i}te carni' frutc ior.-IIA ftomq rpr I cztstr,L,z lut6ut'.u2.Mt JP1,1P !u fpc continued to ignore the testamentary intent of the Testator. To order a beneficiary who is merely trying to get the fiduciaries to honor the intention of the Decedent to pay one-half of the estate's attorney fees and costs is to deny said beneficiary of due process. C. The court erred in not addressing many of the objections raised by those who filed objections to the auditor's report including, but not limited to, how certain assets, namely the stock of closely held corporations, came to be included as assets of the estate and the trusts when Decedent did not own the assets at the time of his death. In so doing,the court ignored the proceedings in the Dauphin County Orphans'. Court regarding the estate of Decedents father,Walter M. Mumma. D. The court erred when, while discussing the eventual liquidation of the trusts,it did not hold nor recognize that the court lacks the authority to direct the trustee to sell the real estate. The trusts do not own any real estate outright. The trusts do own stock in corporations that own the.real estate and the trusts own interests in joint tenancy arrangements which own real estate. The court could direct the trusts to sell its stock in the corporations and its interests in the joint tenant arrangements. However, it should be noted that if the trusts were directed or authorized by the court to sell its interests in the joint tenant arrangements, the agreements governing the two joint tenant arrangements would clearly require the trusts to offer to sell its joint tenant interests to the other owners of the joint tenancies before offering such interests for sale to the public. Likewise,the stock in the closely held corporations could be subject to similar transfer restrictions by a shareholder agreement or the bylaws of the corporation. Finally, to allow Lisa M. Mumma, the sole trustee of the trusts,to sell any of the trust assets and not distribute such assets, in kind, to Decedent's four children in equal shares is clearly in violation of the trusts' language that upon the Death of Decedent's wife, the principal of the trust "as it is then constituted" is to be distributed to Decedent's four children, "share and share alike." E.The court erred in failing to address how and when two very significant assets, the interests in the two joint tenant arrangements (MRA I and MRA In were poured over from Decedent's estate to the trusts. Under the terms of both MRA I and MRA II, before Decedent's estate could have transferred its interests in MRA I and MRA II to the trusts,the estate would have been obligated to offer its interests in MRA I and MRA II to the other owners of the joint tenancies. Since this was never done, it is obvious that these interests were never transferred to the trusts. F. The court erred in accepting the auditor's position that the marital trust was not over-funded. Under the language of the marital trust, the initial funding failed to take into consideration the distributions to Decedent's wife, either under the Will or through non-probate distributions, such as life insurance, and 6 c tptoni:p tion-bLoputc fIi2jL}pnt}0u2- cncp ue I1tc vl2n=cr- uuq ipc q!8fLEpnj1OIJ2 to I)cccq''W.? 1/}{,c` ritpGL nugcL IIJC //;}1t OL imuful tui2t• qJG Jui,,pi J,nugiiJii js!Ie;q to mr.c' tato cou2ignwpou 1JJi4Ut;11 11.121 11:12 1101 01,CL-}rriJgrq' rlugel tpc luu'rJJ'G o, tpc 1;' .UJf. 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LG211.100002 llr, u 2p'JLGIJOlgci. to circ brlppc• pr.rtt.}zc• tIJ, ejocr Iv tpc cio2cli Ilrlq coLbowliouz Ot1.uCL2 G1.tjJG fol?10 tC,l1uUCJ:?1161011 a1�r.LliJti 2n,:p ►utGLGzr2 bas 27Ic qlc UrI2t2 IO O},trL to 2011 It;,' latUt tcr.Jut IUjGLUL2 tO IpG otprL 'o/,runiJli tiJ,jlto 10111; 0117111 JLL'J1)tirumjm nnn}q cical),Lrdtime, 2G11 1j'r. lutracela ►u tpc 10i1Jr trunt 'f'Umr.lu.ut2 flotr(i rput 1T jpr, fim.2 taw glLrctcq CL ungimiscq p), 11:0 co111j jo lutaum lu 111r,•lolut ICTI'llit JLLJUP,GUJrut2' 1puct.;L' it 2itonlq pr, COn}q (IILrC: j}JG ,U1zt2 10 2GIi 112 ?J(Xr,. W q), CO LbOLJjIUII2 JUq rte Iulolut lCumc). I�LLutl8r,I1Jr,L112 11.jllcp Ottu LCUI sGtJtr' ,I 11, C004III coJ)OLgotlr Ipu1 0/1.0 tilt; Lral 021116 uilq 11m,,rl.n42 O1/a micl.rzr2 jur,12 qo iJot oleu t u't.LCuI r2r7t(, ot11LIR111' ,J.pc julzt2 qo onn 2joclt lucrz (IM Jnjl.,outi. 10 (1}LG% j11C 11.112tGG to 2r}l jpr; tr„II rztntG jyc pdnaptiou ot• pc, tun.,; q q}q not pOlq DOL LceOU.11isG fIJUf e;JG cOrlL1 D' ,J•pG COMM (;U.(-,q /t.}Jrtl' ItI:Jj, yi2ru22tu' y►I� cnr11tnul pscrgcutz lu:1111. ;;,u1tr;L r/.lnuJluu tl:c rflUbinn Conu./, pl.l)pJir, '-onit LCR:rlgiDR tIJC r2JUIG Ot, t}ulc of IJr2 gsltrp• 111 20 gortl'• tlir corp.13,IOLcq qtr,bLocccgtu'e 1)J Gatutc 111)q tpr jlrizja 11;101) DcccgGuj qiy uor 011.11 IIJC u22Ct2 Jt 11)r OL clozcl), priq coul olugonz' rui1JG t0 pc iucln(lGq J2 nazGLU oL jpc !uC}nglua, lint not iilJJltcq to, poll. GCL1511) u22Gt2' mucl). qJc stn%Y Lurzrq p) tp(rl, mpo tjlr:q o111CCtloilz to t1JG unggm,2 id)04 t]- ,Ipr conll r,LLcq 111 ])Of 1rggLG22►IJ'i ilrjjj). ol.ipr Oplrctio112 uttoux),trG2 Juq contp i2 tc gGOi zuig licucjv;t11li.ol;grtr,btrN;cez' IJOIJOL 1110 Illf"tiOIJ O,.tl!r, T1rc^.yruj to bO, .Jur,-putt ot,t1Ju catarc,2 OI.gGI 11 pCIJrt ,-,I7U. JLFO 12 IIJCLrjI tO.I1J8 to 6Ct 11JG llgnCIULiG2 to Coutluncq 10 If4lo1.0 Qjr. jv21Ji11',Ilj'JIl. p;tcut of j}i; reduce the funding of the trust accordingly. In addition, when valuing the assets to be used to fund the marital trust, the fiduciaries used appraisals that woefully undervalued the assets. For example,the appraisals of real estate failed to factor in mineral rights to the property. Finally, the auditor interpreted the position of Robert M. Mumma's expert, Jonathan Christ, when he state [sic] that he was not prepared to express an opinion of a matter as agreeing with the expert witness of Lisa M. Morgan.9 This supplemental opinion in support of the court's order dated April 30, 2014, dismissing objections to the final auditor's report, is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). DISCUSSION Failure of court to order immediate in-kind distribution of assets in testamentary trust. Both appellants assign as error the court's rejection of their argument that language in the testator's will providing for (a) the termination of marital and residuary trusts upon the death of the testator's spouse and (b) expressing a "desire that[,) if expedient and possible, the businesses which [the testator] personally directed during [his] lifetime and of which [he] had an interest be continued for the benefit of and under the management and control of [his] immediate family,"10 mandated that the trustee make a total, immediate, in-kind distribution of trust assets to the remaindermen upon the spouse's death.l l The court's conclusion that the testamentary language regarding the continuation of the decedent's businesses by family members was contingent as well as precatory is particularly faulted.12 The basic rationale for the court's view on this point is set forth in the attached April 30, 2014, opinion.13 With specific reference to the court's conclusion that the 9 Concise Statement of Errors Complained of on Appeal by Appellant Robert M. Mumma, H, filed June 23,2014. 10 Last Will and Testament of Robert M.Mumma,Item Thirteenth(emphasis added). " See Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma, filed June 20, 2014, at 3-5; Concise Statement of Errors Complained of on Appeal by Appellant Robert M. Mumma,H, filed June 23,2014,at 1-2,4. 12 See Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma, filed June 20, 2014,at 5. 13 See Opinion in Re: Objections to Final Auditor's Report,dated April 30, 2014,at 12-14. 7 fl;/f�Y 11011311fiL f'} . '}! I+.iJ7(_Jia. ."tj '4G (['t1n-i li i.IIU! IJ'_ +1 /}filiviJI II-0T i{J✓I! ry.rf: }1�/1, J12f lir/.+it (A AIJ- "� I._-1 }G T.tC. 1.61T-j'. rlfrlll' 7 I .dlj IYe'..fTl7tf1: /'+iU+).. .f.1 ,fllw+1'1 .'Jh,f,Tf( "ai. fl! -+11:?11 I'•.13{...fi`I1 A J(V': r'•+1.+,-+ LiI' +� !r '�'+S� {�I J! L f}1(i'it✓ J fi'_ }J9 YTl �}•{Itir` /CI }r _ .C�,P+ ::17 }' t.. :.il+ t!+. i Tlr I}:P.fJ1+ , _ "i{f �1 i}. ii',.1t1 r f�r.•ll ,i L ', '�� i SI; trrf�'}*' 1 r,Jff+dj r fill , iii f1 Y2,r_i i+Jtf� .x..' 1f�13J1� fif a.v;1,,;it :fl! I. ;(IA f'1�]l1 } Iii :fiy,i(Jttij� i'ljl'7 1 J ►! T:_+-)Y l;,ri::q I ;� f'.J(tT}/. r.�'1.J ji_ I+l;n'T+n) ;�;t1:1 }G ;f+�If+�...:f. rJi"J _ i. jV, �• + } ;3: �-III_ .F� �.W1. iJ:J};{ �I} ,,:fr�r,.lIil :trtT', ✓ i t ., ^_(}�,:iT Jlti.'},'i+i r :� 1J,r}(}/ P,., 'to r testator's language was conditional as well as precatory, it may be noted that the testator's reservation, expressed in the words "if expedient and possible," as to whether the continued operation of his businesses by family members would be feasible proved prescient. This excerpt from a recent opinion by the Honorable Bruce F. Bratton of the Dauphin County Court of Common Pleas in a related case evidences the dysfunction of the family in the operation of one such business: . . . [Bobali Corporation] has no on-going operating divisions. It does, however, own three parcels of undeveloped real estate . . . .All of these parcels have been scheduled for sale for non-payment of real estate taxes, some on multiple occasions. All of those scheduled sales, thus far, have been stopped only by last-minute payments, by one or more of the individual shareholders, of the taxes owed,or have been stayed otherwise. We have no doubt at all that Bobali's affairs are at a standstill due to deadlock of the shareholders which has thwarted any attempt to elect its directors and officers. For example, Lisa [M. Morgan] testified that Kim [decedent's spouse] was elected the sole director of Bobali in 1991 and continued as such until her death in 2010. Linda [M. Mumma] and Bob [Robert M. Mumma, 111, on the other hand,testified that they believed that all of the shareholders, i.e., Lisa, Kim, Babs [Barbara M. Mumma], Bob and Linda, were elected directors of Bobali at a shareholders meeting which occurred in 1996. Lisa denies that she or Kim attended any such meeting and, perhaps more significantly, the parties did not present documentation evidencing the meeting at trial. Again, in 2011, following Kim's death, a shareholders meeting was called by Babs in an effort to elect a new director; however, no such election occurred due to the on-going shareholders' disputes. Similarly, the shareholders have been unable to elect corporate officers or even to agree upon the corporate bylaws which govern Bobali. The evidence demonstrates that shareholder meetings quickly deterioriated into threats of litigation and argument about past wrongs between one or more of the shareholders, rather than about the future of Bobali. Such discord, we conclude, leaves us little choice but to grant the Complaint's request that we appoint a custodian pursuant to 15 Pa.C.S.A. § 1767 to continue the business of Bobali, or a liquidating receiver pursuant to 15 Pa.C.S.A. § 1985 to wind up and dissolve Bobali, unless, of course, the shareholders can expeditiously resolve the deadlock which has plagued this corporation for so long. . . . 4 Failure of court to acknowledge scheme of co-executrices/trustees to overfund marital trust. Both appellants assign as error the court's rejection of their argument that the co-executrices/trustees had overfunded the marital trust in the testator's will with a view toward facilitating the extraction of its principal by the testator's spouse prior to its 14 Morgan v.Mumma, 2010-CV-11490-EQ (Dauphin Co. December 31, 2013)(slip op. at 5-6) (Bratton, J.). 8 t 1:f t![r,i,ftl�J 1r;r;r YI r F. [U 'ore 1!re:! TO tt tt_`1 n �Jiryin r'!l�'(+.'r(:' IJ Y'NLt 11".TT [ J 1 65 C? •r• ( X(J? jC, Lr)'.'ja.)tl% f1!r Lrf:'�`Of'3' '.'i.+ds Pill Of 1! 1';It" C.; P,11 ju 7i1.;SYJT fiyl {():T`hi<It[J( pt1"C.f!r-T t;l:Tf Jr 'i111.N1'aESt Y!`,Ta.'.1i11`1'lr T'iT�F'.! C11:!!! ujt )tlf' jJsr, iJj1lCP C3i C 1ij'.�i:lTl{-!tJ hitt! riu. nlT-cf ;1;)C1ltj �)"r^q �,.lt.tJt.2 ()rrfl r•r!! (:iJi Y!�tunl.'rLSjr l'8rtj flw'! L}�fe;,Y�J1l�lj Lj tLiU j+21^J1� UL ?'t •1 g{) '.,'t lt`(• t/ r �+ rJ ` ' - rs 1 •f, rr r rr,r, �!!Ill�,J�-tl` 11.Sr i:11`SLr1J^1(1a.J' 1.�9, ". ?)+'rt'1 fl(jrl(f('; jrl r"ry l mboLov, U{.f!Gr!e 10 3.a1:1J C:j(r'TIOT, C'r:Cf!LLrt't a4:+� M 111": 011- tt+lJur [jUi.!IU • 1j:*(7,JU �.t Ir�;:IS:i.J•i 117C' w f'j111'' `;: jia.1j` t* '.ow S... WOJt' f/lin Jllt WIT w- !P!Ut. ht"C4;1)1 111OLr: �le-lul S-lol1�r' ye h':r+f7G? Ciit( t11i} 11.JLr 1'f 1i1,.l.t tJJ',r:liJ i vp,r.'J cas'ar.q to 11rs:il.!)J1.'J :ti' f Ytwl)i!'Jul pup '.iUf; !'t7J+?"..ii ri r'Lt' r i~ �1 `.'?!,L^.CI'.tq+. Wr1"lF :4' 1i";F)(1 !r,'11,140 fl17T jlP.r 1jt1i! t"C1 T1iJ.T 7i1 t)' Titr '"1)"°t'.1701(j'^LL l r" 1 1C'F 1!Y2+1 f}i+s ( r'—:(J rrt,'1tiJj1S'2'Al owl' s�1' 115 r•.j .l1 1/!ililJ2El T 111* C(7!': 0`1)1"" Vic +r,t-.".1 IF. .:+)1t; 1TV'Stfol, (I{. Bopp F!t 1r,r)i u,;q Cal2,jtt'nrt1 `J2 acls [P2;j(I J L 0( ►C".Lr' ,},r31. ^..�TtIJS,'-(r' ..0 jlpW 1401,610ie sw_:,12ij'rq T11.71 1r'iB! Iry^rrq-;w- r lilt'?,t f Q� j11C '1J'lL:..rJ1Gr,2 r:1JJG« f)'!� j�Jf::Jtjr:1 tUs grtitj:� jrl rlr"T it ri(LrCU'_C 3itq ;�.r. SJfit rw {Jt3 t'1elf+.;r'f .tiJ }J3{ r)f)'i11 'Jjj-a: :.'t(`.it It r!11"' 10 C;? l:i1VC1f 's ('.lrl e Qrl',g, !r±. 1';SJr j1•rri7 eV',(r'fj Gjpe*;U:ler, !•!ry.aJi:,.tgrr a !;t'J'li r .t Oii: tJa Fc'r,t.;' r( r, ;r t yrle. r+,••. �• Ir J j=! {1 ..1.i if1YJ3( ._ .i. ! U1'� L'. iJ(, f.13.. L,.:i1j'r lrs hvx%' 2(yJd '111 rt1. %110;lr; Tfn;? {`!C" 1Fl+ ^ 1.I'. ._i t'iobi rr1 (t SI r; 1Jr;'";J i'larCittl`:2 jUl. ��t' ?7:, i,ti:?••h:i:.iJ;rlS! C# J."S( ..{'Jjf: "5,... i;,iS1`. r,:F j: r r / mm�, r rr it �rvr: . t:' (J,t f! +1J':.r 1. ',.G._9� U1. [4i1"'.:rr,G:6,C1 ' ! r,�;.� ;1F �{.f1('.r . [..+1(..r ` OrJ1 Y f ;.tl[.r!)VITI l !r PO CU- r091Y }!t 4{.)1f. -lit le.'our' j r,:}r:?' lie If Cl5i€:r1 Cr %t- t 'Y�-y rr fl r' *t; .T W ; 3 �. �! Cl%G .f..i 1r a,J r tj a �A �,�,. I E:,j . LV,`e cxccl.W t1,0111 TJ J.,Cc Jt r)bJJJJf)j! P.�. rjJ� 1,.ItJJitla.s;�Jc };(r1r,.- + X 1,.:1#:�rJJi o� �jtxr r1J r:cr7w1![rq (4),U111JUJJ Ot e1.1 +)s'21iJ:/r?.' p?, t:;Tml[ . F1J' lli1� ;.' rhl�filte 1 �� k:fel�'. ai:G!fr# tl;�'1 �T�T� irryjrl.f+dTlilJ3' r:YeIY d� j. [:J jfJ+: ;f'OL"m rrli ri'r )T;C(J" I.#� :wa e3oo,pIr', 'F7 to ';el;1t#r:.L „e}:I►'€1f,�;+ },t[:[;j1;!�i.•; /I:iJ? �'(ylltelN4fJJJ;t� f1'�: /ft;'•eS :id i')l.t;t� f1j�.' �� tj1:j,+^. s.i: iJiljr`� f�1J( {.U•Y termination.15 The court's observation that one of the supposed conspirators (co- executrix/trustee Lisa M. Morgan), as a remainderman herself, "could have had as much to lose as the other remaindermen from the putative overfunding[,]"16 is particularly faulted.17 The basic rationale for the court's view on this point is set forth in the attached April 30, 2014, opinion.18 With specific reference to the court's observation that Ms. Morgan would have been jeopardizing her own interest in the trust remainder by engaging in such a scheme, it may be noted that any benefit that could have accrued to her from the wrongdoing would have been contingent upon events outside her control during the perpetration of the fraud—her mother's frugality with respect to the extracted principal and her mother's ultimate devise or bequest of the same to her when she died. Attorney's fees incurred by fiduciaries and apportionment of responsibility therefor. Appellant Barbara M. Mumma assigns as error the court's approval of the auditor's report to the extent that the trustees were not surcharged for "outrageously and grossly excessive, unreasonable and unwarranted legal fees" incurred on behalf of the testamentary trusts,19 and Appellant Robert M. Mumma, II, quarrels in particular with the auditor's recommendation, with which the court concurred, that he be responsible for 50%of the costs and attorney's fees associated with the auditor's proceedings.20 'S See Concise Statement of Errors Complained of on Appeal by Appellant Barbara. M. Mumma, filed June 20, 2014, at 7-8; Concise Statement of Errors Complained of on Appeal by Appellant Robert M. Mumma, II, filed June 23,2014,at 4-5. 16 Opinion in Re: Objections to Final Auditor's Report, dated April 30, 2014,at 18. 17 Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma, filed June 20, 2014,at 7-8. 18 See Opinion in Re: Objections to Final Auditor's Report,dated April 30, 2014,at 17-20. 19 Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma, filed June 20, 2014,at 3. 20 Concise Statement of Errors Complained of on Appeal by Appellant Robert M. Mumma, II, filed June 23, 2014,at 2-3. 9 -r)aj zacltr;licl�cau. bti°�rqu2 arlt aI r )Ir) indi ?'Tajo) t IT flollfiamntr fkmiraa a bad rind blurs" :i.l.a-l;ri n 26 Ptr4p70/ .I'll r;ei_1 tmafrat zi't7uttxt Y.."m1winq r.i `' "'�,1-r alIbIlu1.1j" c �rII 111"3 trii frioll IA10 tfit zr, taoi ul .b`it!uf lr'r'TA bw1wilil3 Jrl; "11 fin i 1)2 ?i fnioq ?I'I`_ ito mji'r e'rwt o:� tall -t,, i. t)lnvoiln•t 'Ouiid ' T I'ma-10A .;J/ roll nwjirm wrlo �!'rmjoij Ai n; _Jwitiritiii tt` maga riiiII ",voir>icic) .0(" &i.4p rli ti:31* 5 aP9 `tri -i-lbrtit;rrrj-i izlrri tai; ni i25-1waki nvro %rt ��r i�il.lf)tict;{,m)-4d )vvd bluo r .At mo'A -rtri vl baro);Or I)IIlu. ilxfli iT::a t;d yw; il;ril b))xu .di mri 3I wit -rit-lltb fu'!Ttir�J 'I;tii� `if)I2J1JO 4�rMV5 ROOL PI)?IffilrlG) rtsc"fl :iRd b4jow nitiobuno-itr iugi:.lat3-tq b`)ia rnz) Ai aat it`tgi`3'I ilii,m VlOwlifi'I ,'-ijdtom -r`)d _burrfi itl? I`i rroilfnl9gitq i.�ii; trlr rf�rfra .10 os Y-iw_u wf `3r) -to 5a, 01) 9tcmilill z''it;71{prat Itri I)(tfi V4t) 'i"'�`�1�i <t11`Y �17tY�1',I:!'Y �Il 1fY'JCi1Y1ctY1'iCai��Y) YJiYt1 't.')Y't1tY')YiY.',1� '•Its 1`)`)t I l`aSY'Yt1111 i31rr t ! `ir, i,:r�t fl; --,Int :l tall -um t_j, ent,iaah iaauru 'I` .I:f aArsrla4l, )rt..-'11xi4�' lluu'Irt batt 'fol bt,,praif7v.i2 ion t'vj,,i pt,wz;rai aril !ur{i juwzt ,rli 01 110pt 10 'lirnDri ft=� b1m tic;fi-mrt-rnil ,wviezttxa tris fNVI -tFiu)IIIFq Iii $I3TIl3lri2 Al .sflrfaruf/I IA riadoA iairiitticIA bris ' 'T2;alIra v.t£intlrlwo-ii tui jidiza vizt'i tci A l atii ,N_.J-Ilrafto) rtilo"' i iw .ftoimbrtrrt nc;.t-i r -rulil)1111; % Cit:)a'7oo-jq a-jolli:iia w1i tDivi btin r.oeaL ?—Ac'.iw"tf)tifi brat; ;(ii Ir) ci 0i__ b"IR ' nrrt ull, t''I f-owl-VA lrtrsiljggA cd no Io bin i',Igfrr?') avm, j 'Ic, tn,rnv 11:12 N IijdoM WOL)ggA Cd ar)io 4::r► AgrIOD nu1-13?u ;rs rurw2 cmi;rrto) .X-C tri ,t its.' 0K -,nt9Z ;4 lcW 0,1 '.f 41t; . hili) ,ll 'utirrriTNI 21 vx A,iftC lir Inch ii:,lcb .ni4gjI <.'7o_t+lrrlh (rtriii til pru)i)7.)(tl() wq m ituint(lf.) ,tilt b-,11 J'alrrs.TriJ W; fni'ltr.t-T iigz �q,-jt, rd i.cjggI--. r;O lb;j u n* :, fAq:rr)*) G7r►•ni:1 3o injm)isli'. s i•no`) ' orI] bll,lrrUSC i 1; 141 Or- ,tc li2tlA b :T , r » fl ttotrrtcy() _;(t1r1, bAT5 , rtTr.ttTl'T, If rnj;d'trU rar,li)cigA +d lr:�ggi, tw "to ')o irt.,rp4'Im2 :A,tt��'.) .f. if, .;-[() uJmjt .11 xmtrurif JA rIjdoq Jnllvj 1, rd ie..,,,gcjI. rtra lu liuuis;lq;rto") eiunt j 10 1rT-'fnwrj2 r i.r, .l�)d►t F T' -a _ This issue was discussed in the court's April 30, 2014, opinion in support of its dismissal of objections to the final auditor's report.21 By way of amplification, it may be noted that, subsequent to the dismissal of objections to the auditor's report, an evidentiary hearing was held by the court in accordance with the auditor's recommendations regarding attorney's fees and costs, on June 25, 2014. The following supplemental order resulted from the hearing: IN RE: ASSESSMENT OF ATTORNEY'S FEES AND COSTS RELATED TO AUDITOR'S PROCEEDING ORDER OF COURT AND NOW, this 30th day of June, 2014, upon consideration of the issue of attorney's fees and costs related to the proceedings before Auditor Joseph D. Buckley, Esquire, in the above estate, and following a hearing held on June 25, 2014, in accordance with the auditor's report and recommendations dated August 7, 2013,and the Court finding that the fees for Morgan, Lewis&Bockius,LLP,in the amount of $690,129.00, and the Martson Law Offices in the amount of $218,790.75 were fair, reasonable and necessary given the complexity and size of the estate herein, and finding that the auditor's costs were $133,400.67, and the Court being in agreement with the auditor's recommendation that 50% of the attorney's fees of the estate/trusts and 50% of the auditor's costs should be borne by Robert M. Mumma, U, it is ordered and directed that Robert M. Mumma, H, shall be responsible for 50%of the said attorney's fees and auditor's costs, in the total amount of$521,160.21 and shall remit the same within 30 days of the date of this Order. NOTHING HEREIN is intended to limit the share of the balance of such attorney's fees and auditor's costs that would otherwise be incurred by the said Robert M. Mumma, U, in common with the other beneficiaries in his capacity as a beneficiary of the estate/trusts.22 The order was based upon evidence presented at the hearing that reduced to specifics, and supplemented the auditor's record as to the reasonableness and necessity of, legal fees incurred by the fiduciaries in this case. No appeal was taken from the order.23 21 Opinion in Re: Objections to Final Auditor's Report,dated April 30,2014,at 20-22. 22 Order of Court,dated June 30,2014. ' Exceptions filed to the order on behalf of Robert M. Mumma, U, were not authorized by Cumberland County Orphans' Court Rule 7.1-1 ("No Exceptions shall be filed to decrees, adjudications, confirmations, or other decisions or orders of court entered in proceedings unless the right to except thereto is expressly conferred by Act of Assembly,by general rule, or by Special order. . . .'). However, the general issue of apportionment of fees and costs associated with the auditor's proceedings is among the issues encompassed by his instant appeal from the dismissal of objections to the auditor's report. 10 ryl. IF [i'•r ,t' I I a,r{1J". I:r 1t.'r..�.'i'F• i,. 11. iS i V 1 • .:�y .1 i(It' j ',{. a +I + � � I -U. r.,.' r� rr lilt I'. . .r f� /.. '1 .t. �!) rr'J• J, i'J . .!_ r nJ r,�I - i I. •r' i{' I !�J'• .. I -L.7t 'rr• r{--r J-1J-1 i Vim, •� lif i," 'Jg- qri jo- r, .1 •Ji '}�-. '.'I i'.rr.: +-� it 4x11 , r ij ' Ir !�." TI `rtrr):. L" ,'J1.l�+"..C' t. if? I- ..(irk I!P '��`, ''1➢ 1. � � '.'r.! �(I 1 ' 'fit 'Ir- /, 'r..�.1 f.n/ �/� �� ., ' I' '-1�.( } ,+rl` I'r ., -. +r7..1J'_ 'It.f I: .rjr' '"+ 11 .'+.:r " +lU�(.1.1, ;} (i CJ.,, rr;''r•.s (J r, 1 'ijul� :� + .r, . .� . ._f. (, r�. I r,rr- 't .L. ."� +• Gij•.I 1 ��, � l'ri .'[re. !1'• } y [ �l,,J ( 1'4 r 1l ii� !r/f•�r:,,l.. , ;j'• ; I�C1{<<i•J ,+ 1•� , r i.�{; . lTf. j r ' 1+, 1.��f�J yllr '� Ii r�/ff•� rl i.t" r.'i rT r. a!r t 1, r�'i U rr ,; . rr I{.11 ;r, i�l 'J.- � i-SCC '•.►. 1C ,. }' 'If'IrCi j�tii:;a !.,��?'.;{;r.,r'; 'fl {�J; +rIJJ.r•"il fJ' 1+�.�rr(II,II 'i I , ,`1f+.1 'r,' ? I.rtir '.i' UO iP I G'r 1 l l�' �l! '!1:[r, Jrl +r' I. I}� IlI .' rt�1 ,. l 1. 1���r.'T ij i/rl` rlr Cti r r r 1 . �{. -.{ ( }_ ;( � � L fill .a�J ! .; e:.'i:.l,r, r r {, { r. Sanctioning of trustee actions concerning real estate. Both appellants continue to pursue challenges to the trustee's actions as they relate to the sale of real estate held by corporations in which the trusts have an interest. This issue has previously been adjudicated in the context of the trustee's petition for approval of such a sale—a petition made necessary by the unwillingness of buyers to.purchase assets associated with this disputatious estate in the absence of court approval of the transaction.25 The rationale for the authorization of such a sale is contained in an opinion of the court .pursuant to Pennsylvania Rule of Appellate Procedure 1925 and dated August 30, 20.13, which incorporated the reasoning of an interim.auditor's report on the subject.26 This issue is presently on appeal to the Superior Court at No. 1003 MDA 2013. Failure of court to hold that expenses were disproportionately assigned by trustees to residuary trust. Based upon the auditor's record, the court did not regard the objectors' contention on this point to be persuasive. Typical of its cogency, or lack thereof, was the suggestion by Appellant Barbara M. Mumma that "[p]erhaps the most egregious manifestation, of the misallocation of legal fees between the Residuary, Trust and the Marital Trust is found in the. legal fees paid to Crary Buchanan for the `High-Spec litigation' in Florida. . . . Of [the] total, $521,116.34, or 95.41/o, was charged to the Residuary Trust and only $24,849.69, or 4.6%, to the Marital Trust."try The propriety in general of the fiduciaries' pursuit of the Florida litigation, in which it was ultimately determined that one of the appellants herein had misappropriated property of a corporation known as High-Spec worth hundreds of thousands of dollars, is discussed in this court's opinion dated April 30, 2014, attached hereto.28 The assignment Z' See Concise Statement of Errors Complained of on Appeal by Appellant Barbara M. Mumma, filed June 20, 2014, at 6; Concise Statement of Errors Complained of on Appeal by Appellant Robert M. Mumma, II,at 3-4. is See In re: Opinion Pursuant to Pa.RA.P. 1925,dated August 30, 2013,at 9. 26 See In re: Opinion Pursuant to Pa.RA.P. 1925,dated August 30, 2013. 2" Objections of Barbara M. Mumma to Report of Auditor Docketed August 7, 2013, filed September 16, 2013,at 35. 28 See Opinion in Re: Objections to Final Auditor's Report,dated April 30,3014,at 20-21. 11 3• ,3 6oucz29 9Mtcuxsiat OtEUO.2 CousblsruGo,, olou ybbcuI p?,Ifoput yi.-yjmirum� 11'Llcq Imro 33' SOIL'gt So 1 d'st Y 3s Comm 2mcisr n otpivioi.2 Coirablsrtnog oLou VbboM. p�,Vbbs pup Rap=yq• Wnirnsts'picq Iriuc So' aaa V3q a38' ads �1ag�) (�,Corir�2:riG not tiszt:fnfcq to Lonqu:sgnizWi obiutou2•„)- no nox bcujjiucq to imr, sgni?Wi obii ioi.iz•„)' Cow.tiss?, A. j!;Mxii Wglc,2' JW-” 3d2 1)9' ?nbos:• Io()' ]'I()' 31 G 2Ga s tussis e1 `�ntv C© r I�sj4i,' dS t bs• 2nbri.• q13' q1?' @33 `0'•Sq 84a' 820 (1 aa3) (s 1Ac 33' so]"t,st 3, 30 Coucrac 2MV'uscut o1,Ei.i01.2 Cowb)siuGq of ou abbe p?, mbboalsist Jfops4 Vj- ihTffu '' 11, Llcq Inas sb 2s s J,G?fzisroirl,of Ito A. Offo' I A'3:rmi2cubt ot,Vngrtoi.,2 j4GuquR ggtcq Ws�,Sit' Sol I'`It &30-33' Won m.VrmpjG. pi qjG bi.occaa psr2 GiigGgAoLGq to gj2cii22jfu qcM gjo2c oplGapin gFicli jt tGlt mar, qrc Wqt tol.,3lGq :.)v,1 ju yawpaiuR qjG oplGcgou2' tpG com.t IEpq abou ull or gjrm' uuq ju qna cs2G' opjGcgoua io tpG angpj.,2 mbou mGic Lgcq pX tTJG bsi.tjG2 pi goanwGuta UJUiin of gJG opIGOvoiia LM.2Gq pa tFO2G mpo ilGq op3uctcoue to qac gsiq toi,2 i.GboLt . . . .�J3� Vbbr;iigt. Nopcu ys' ypumW 11' coi7Jbjuuw gigt ,[t]pG coiiit G ,cq !u vot ggqLG22jHI3 IggpA to mIG st qil ou ori f.mu f4uyclx op,Gcgoua to tjJG iiq toy,2 GboLt,,,s siJg cs vt Vlw.r;z ubmv VbbGllerul. B%,psis yq' VgnujuJs coiJJbp.!u2 test ,fljljG ILIal -o.f c cucq sctaoil ou pa b,ii.t imra, TucingGq iii IpG obiwou sccoiJJbgi3?qug t)Js oigGL sbbGsqGq t.ow,3T tl ii2tGG to 2GII tjJG 1.99 Gatsfv,, uo sgja= sa to fApGtIJGL it paq f.FG girtjJOLit)1 to cOiJJbGj 2iiclJ cofri.t' .iii giacti22ni? auq gr2wi.2aTuR opjccgou2 to qjr. spgltoi.,2 i Gbue qjq iJot «gp.6ct tpG cosiit 1UGj!2 qJG fi£itj'JCfgfX to q:P.GCt tpG (IJ721.GG t® 2GII qJG I.GUj G2tste'„30 11.1g2wincli s2 Pic q aci•i22juR qic GAGiitaq. 1 pdmqupou of qjG pnw' it q!q not po;q iJOB LGco€IaisG fpgt tPG 12 comriiq q p? VbbGllguf IfopGLi yj, .MMMJs= 'If tpgt jf]FG cOM4 rii.Gq tA]JGii' IApT�G jai%vkv;, o�casim ga Ivnsm AM Scsq k4 %mtk tm?'wq vo n\\ wzla rnkmr,• It fi€ r2 mi gn% oL tpG iG2iq:rnm h trmf-sa 2tJibiI2ii7g I'JJ P+iGM ® qJG tgct fptlt (lIG jiJtGLG2t Ot fpG G2t9tG jU tpG coiboLstiorJ . {�BiGa oij of IsPsl cy bGiJ?Ga s22ocig q mup ;.pst Jif,4RZ jOU to tpG LG2jgiZWi ga2t isa ligi.q'IX �_.. BY THE COURT, fWesley O , Jr., S.J. Shaun O'Toole, Esq. 220 Pine Street Harrisburg, PA 17101 Attorney for Appellant Robert M. Mumma, 11 Richard F. Rinaldo, Esq. Williams Coulson, LLC 16th Floor One Gateway Center Pittsburgh, PA 15222 Attorney for Appellant Barbara M. Mumma Ivo V. Otto, IV, Esq. George B. Faller, Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Attorney for Appellee Lisa M. Morgan, Esq. Brady L. Green, Esq. Wilbraham Lawler& Buba 31 st Floor 1818 Market Street Philadelphia, PA 19103 Attorney for Appellees Lisa M. Morgan, Esq., and Estate of Barbara McK. Mumma Linda M. Mumma P.O. Box 70 Mechanicsburg, PA 17055 Appellee, pro Se Anthony L. DeLuca, Esq. 113 Front Street Boiling Springs, PA 17013 Auditor(courtesy copy) 13 3 p �.( qppp nn r frn.r t� 1017f k1l gurdaz sii :pz3 tobisni3i ,3 bu'daiR " JJ xnaf J i�ii��� 7r�c�.t �tc�1 T�sfr`? \'8wwuY� rrC3 #� f tee tc ! g{3p Kt Z I--a q�_ttiq , yN!y-jjrrjajjiq J�frv,A..�i} `i lir Ahmd-ifi ff- wSlsbiloggA l,+' P?'3 xvl.,Orjo N ovi! Wy.r ;l0z"If3.m P?3 trr'3ali3 .J XbR70.. rxiuEl IDf r' i mr,rl�7�fii`�� 7crr�i"�.32 f i O'tt t Act rf4AgisbpAif!9 srsrmrr �i .1a 1�Ji.r�rxt: ,' nttz i3 fiam j't .M fifth j OC r48 . .' t3-vrt?, tr m -!.i E f Or, I Aq s :,,rsi IN RE: ESTATE OF ROBERT IN THE COURT OF COMMON PLEAS OF M. MUMMA, Deceased CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: OBJECTIONS TO FINAL AUDITOR'S REPORT ORDER OF COURT AND NOW, this 30th day of April, 2014, upon consideration of the various objections to the final auditor's report filed in the above-captioned estate, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The objections are dismissed and the accounts to which objections have been filed are confirmed;* and 2. In accordance with the auditor's recommendation, a hearing to determine attorney's fees and costs is scheduled for Wednesday, June 25, 2014, at 9:30 a.m., in Courtroom No. 4, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Wesley 06(, Jr." S.J. At oral argument on the objections to the auditor's report, the parties indicated that it would be premature at this time to approve a certain schedule of distribution. Joseph D. Buckley, Esq. 1237 Holly Pike Carlisle, PA 17013 Auditor Anthony L. DeLuca, Esq. 113 Front Street Boiling Springs, PA 17007 Successor Auditor �, r Taylor P. Andrews, Esq. Andrews &Johnson 78 W. Pomfret St. Carlisle, PA 17013 Former Auditor Ivo V. Otto, III, Esq. George B. Faller, Jr., Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Brady L. Green, Esq. Wilbraham, Lawler& Buba 31st Floor 1818 Market Street Philadelphia, PA 19103 Robert M. Mumma, I1 Box F Grantham, PA 17027 Richard F. Rinaldo, Esq. Williams Coulson LLC 16th Floor One Gateway Center Pittsburgh, PA 15222 Ms. Linda M. Mumma P.O. Box 30436 Bethesda, MD 20824 IN RE: ESTATE OF ROBERT IN THE COURT OF COMMON PLEAS OF M. MUMMA, Deceased CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: OBJECTIONS TO FINAL AUDITOR'S REPORT OPINION and ORDER OF COURT OLER, J., April 30, 2014. In this long-delayed decedent's estate, the will of the decedent, Robert M. Mumma, who died in April of 1986,1 was admitted to probate on June 5, 1986.2 After 27 years of litigation, precipitated largely by one beneficiary,3 an auditor's report dealing Petition for Probate and Grant of Letters,filed June 5, 1986. 2 Decree of Probate and Grant of Letters,June 5, 1986. 'The Superior Court has aptly characterized this beneficiary's conduct in the estate as 'litigious." Opinion, dated February 2012,No. 481 MDA 2011.With regard to the beneficiary's prior appeals in this case alone, see, e.g., Notice of Appeal, filed by Robert M. Mumma, H, filed June 10, 2013, from Order dated May 6, 2013 (relating to sale of"UPS Drive Property"), docketed in Superior Court at No. 1027 MDA 2013 (pending);Notice of Appeal, filed by Robert M. Mumma,H, filed June 10, 2013, from Order dated May 6, 2013 (relating to liquidation of real estate in marital and residuary trusts), docketed in Superior Court at No. 1028 MDA 2013) (pending); Notice of Appeal, filed by Robert M. Mumma, II, filed July 8, 2013,from Order dated June 5,2013 (relating to motion to compel compliance with or vacate order entered in 2012), docketed in Superior Court at No. 1222 MDA 2013 (pending);Notice of Appeal, filed September 15, 2005 (appeal quashed by Superior Court by order dated October 28, 2005, at No. 1546 MDA 2005);Notice of Appeal, filed January 14'. 2009 (appeal quashed by Superior Court by order dated March 27, 2009, at No. 270 MDA 2009); Notice of Appeal, filed March 14, 2011 (order affirmed by Superior Court by order dated February 22, 2012, at No. 481 MDA 2011); Notice of Appeal, filed January 12, 2012, (appeal quashed by Superior Court by order dated October 19, 2012, at No. 97 MDA 2012).The beneficiary has also been involved in litigation against his recently deceased mother's estate in Florida. See N.T. 88, Hearing, January 28, 2011; RMM Exhibit 1,Hearing,January 28,20111 (objections filed in mother's estate). Not surprisingly, the said beneficiary's apparent reaction to the auditor's final report was to file a suit against the auditor, attorneys for other parties, and prior counsel of his own. No. 2013-7096 Civil Term (Cumberland Co.)(filed December 2, 2013).Having been ruled to file a complaint,the beneficiary filed a praecipe to withdraw the action"without prejudice."See praecipe,filed February 6,2014. In addition to numerous periods in which the beneficiary has proceeded pro se, he has variously been represented by at least 15 different attorneys. His most recent counsel has withdrawn in this court as of February 27, 2014 (see Order of Court, dated February 27, 2014) and in the Superior Court in estate- related cases as of March 18, 2014 (see Order of Court, Nos. 1003 MDA 2013, 1027 MDA 2013, 1028 MDA 2013, [1222] MDA 2013, Pennsylvania Superior Court). The docket entries in this court in the estate, which are recorded at two different docket numbers, now extend to 92 pages. See "Register of 1 4 with objections to fourteen accounts, has been filed. For disposition at this time is a 114- page document filed on behalf of the aforesaid beneficiary entitled "Supplemental and Corrected Objections of Robert M. Mumma, 11 to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire ,,5 as well as objections filed by another beneficiarY6 and objections filed by fiduciaries under the will.' Oral argument has been held on the objections to the auditor's report before the undersigned senior judge. For the reasons stated in this opinion, the objections will be dismissed. STATEMENT OF FACTS Robert M. Mumma, an active businessman domiciled in Wormleysburg, Cumberland County, Pennsylvaniag died on April 12, 1986, at the age of 71,10 survived by his spouse, Barbara McK. Mumma, and four adult children," whose present names Wills" Docket (entries from I to 185) and "Orphans' Court" Docket (entries from I to 760), Estate of Robert M.Mumma, 1986-398. It has been estimated by the auditor that litigation occasioned by this beneficiary in federal and state courts has resulted in attorney's fees for the decedent's estate and its executrices/trustees in excess of five million dollars.See Report of Auditor,1444,filed August 7,2013. References in this opinion to "the said beneficiary" or "the aforesaid beneficiary" are to Robert M. Mumma,11,unless otherwise indicated. 4 Report of Auditor, filed August 7,2013. ' Supplemental and Corrected Objections of Robert M. Mumma, 11 to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire,filed September 19, 2013. 6 Objections of Barbara M. Mumma to Report of Auditor Docketed August 7, 2013, filed September 16, 2013. 7 Objections of Barbara McK. Mumma (Deceased) and Lisa M. Morgan As Executrices of and Trustees under the Will of Robert M.Mumma To Report of Auditor, filed September 16, 2013. Petition for Probate and Grant of Letters,filed June 5, 1986. Petition for Probate and Grant of Letters, filed June 5, 1986. TO Petition for Probate and Grant of Letters, filed June 5, 1986. See Opinion and Order of Court,dated November 17, 1989,at I (Sheely,P.J.). 2 are Lisa M. Morgan (formerly Mumma), Robert M. Mumma, II, Barbara M. Mumma (formerly McClure), and Linda M. Mumma(formerly Roth).12 The decedent's will, executed in 1982, was not complicated.13 A marital trust and a residuary trust were provided for. The decedent's spouse was a life beneficiary and his children the remaindermen of each trust.14 The funding of the marital trust was directed to be in an amount equal to fifty(50%)percent of my total gross estate as finally determined for Federal Estate Tax purposes, taking into account and including therein, for computation purposes,my undivided interest in the value of all my interests in property which pass or have passed to my wife under other provisions of this Will or otherwise than under this The decedent, in his will, appointed his spouse, Barbara McK. Mumma, and his daughter Lisa M. Morgan (formerly Mumma), as co-executrices of the will and co- trustees of the testamentary trusts.16 By a codicil dated October 12, 1984, the decedent removed his son, the beneficiary referred to above who has proven litigious, from any position as a successor fiduciary.17 With respect to the marital trust, decedent's spouse was to receive (a) the annual income therefrom, (b) such amount of the principal as deemed appropriate by.the co- trustee to maintain her accustomed standard of living, and (c) the greater of$5,000.00 or five percent of the principal of the trust annually upon request, said invasion of principal to be "noncumulative."18 With respect to the residuary trust, decedent's spouse was to 12 See Petition To Authorize Flan of Liquidation 12,filed April 5, 2012. 13 See generally Last Will and Testament of Robert M. Mumma,dated May 19, 1982. 14 See Last Will and Testament of Robert M.Mumma,dated May 19, 1982,T 7-8. 15 Last Will and Testament of Robert M.Mumma,dated May 19, 1982, §7. '6 Last Will and Testament of Robert M.Mumma,dated May 19, 1982,¶15. ' First Codicil to Last Will and Testament of Robert M.Mumma, dated October 12, 1984. 'e Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶7. 3 receive (a) the annual income therefrom and (b) such amount of the principal as deemed appropriate by the co-trustees to maintain her accustomed standard of living.i9 Each trust was to terminate upon the death of the decedent's spouse.20 Upon her death, the principal of each trust, "as it[was] then constituted," was to be paid over to the remaindermen, decedent's children.zt In their fiduciary capacities, the co-executrices/trustees were provided with very broad powers under the decedent's will. In this regard, the following provisions of the will are illustrative: I give and grant unto my trustees, and the survivor thereof,and their successor or successors, the following powers, which shall be construed broadly and which may be exercised by them in either or both capacities,as in their discretion they deem advisable, in addition to and not in limitation of their common law and statutory powers: (1)To allot, assign, care for, collect, contract with respect to, convey, convert, deal with, dispose of, enter into, exchange, hold, improve, invest, lease, manage, mortgage,grant and exercise options with respect to,take possession of, pledge, receive, release, sell, sue for, and in general do any and every act and thing and to enter into and carry out any and every agreement with respect to the property included in any trust created in this Will which they could if they were the absolute owners thereof, without being limited in any way by the specific grants of power hereinafter made. .(2)To retain for such time as in their judgment may seem advisable all or any part of my property or assets which at any time shall constitute a part of the trusts herein provided for. (3)To sell or exchange, either privately or at public sale and without prior approval of any court, at such time or times and at such price or prices and on such terms and conditions as the trustees may consider advisable, all or any part of the trust property, real,personal or mixed,and to execute,verify,acknowledge and deliver all deeds,bills of sale, or other documents which may be necessary or proper in the exercise of such powers without liability on the purchaser or purchasers to look to the application of the purchase price. (4)To manage any real property held by them,in such manner as they may determine, including authority to alter, repair, maintain or improve such property as hereinafter set forth, to mortgage such property on such amount, on such conditions and at such rates of interest as they shall deem advisable;to abandon such property,to adjust bound[alries, to erect or demolish buildings thereon, to convert for a different use, to dedicate for public use without compensation, to grant easements and rights-of-way, to waive payment for property taken by right of eminent domain and to claim and negotiate 19 Last Will and Testament of Robert M. Mumma., dated May 19, 1982,18. 20 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,'¶¶7, 8. 21 Last Will and Testament of Robert M.Mumma,dated May 19, 1982,117, 8. 4 for payment for property, to enter into party-wall contracts,to protect out of the general funds of the Trusts created herein,to insure or perfect title and to charge the cost of any action taken with regard to any such property to principal or income as they may determine. To make all ordinary repairs to any real estate held by them and such extraordinary repairs, alterations or improvements against the principal of the Trusts herein created of which the property being repaired,altered or improved forms a part. (5)To lease any real.estate subject to the Trust herein created for such term[] or terms,and for such rental or rentals,and under such covenants and agreements as may,in the discretion of the trustees, be considered for the best interest of the trust estate. The trustees shall recognize existing,leases, but still have the power to agree to modification of, or amendment to, the terms of existing leases or to extensions or renewals thereof. The trustees shall have authority to acquire by purchase, gift or otherwise, and to resell, receive,hold,manage and control real estate, and any other interest therein, subject to the Trusts,and do all things necessary or proper in the performance of such functions. (b)To invest, and from time to time to reinvest, to acquire, and to retain temporarily or permanently the trust estates received or held by them in cash or in kind or real or personal property, foreign or domestic,including by way of illustration,but not by way of limitation,common or preferred stocks,investment bonds,mortgages,debentures, notes, unsecured obligations, wasting assets, or investments which are unproductive, overproductive or underproductive as in their discretion they may deem advisable, and the total trust funds or the relation it may bear to the type or character of other investments in the trust estates, or to the effect in the trust estates and they shall not be restricted in their choice under any present or future applicable law,it being my intention to give my trustees power to act in such manner as they will believe to be for the best interest of the Trusts created herein. (7)To pay income tax on gains from the sale or other conversion of capital assets out of the corpus thereof. (8)To amortize,accelerate payment of,reduce,extend,modify,settle or liquidate any lien, encumbrance,mortgage,or other charge against any real estate or other property which may be subject to these Trusts.The trustees shall specifically keep and perform all of the covenants,terms and conditions of any existing mortgage or mortgages upon said real estate, on the part of the mortgagor required to be kept and performed and shall have full power and authority with the consent of the mortgagee or mortgagees, to refund, replace, extend or otherwise amend the same, and to anticipate and accelerate any periodical payments therein required. (9) To subscribe for stock allotments and to exercise all rights and privileges pertaining to securities which are available to the owner thereof. (10)To receive or make distribution of any trust herein created, either in money or in kind, or partly in money and partly in kind. The judgment of the trustees as to what shall constitute an equitable distribution or apportionment shall be binding and conclusive upon the beneficiaries hereof. Nothing herein contained, however, shall empower the trustees to make distribution before the time or times specified herein. (11) To pay, collect, compromise, sue for or contract any claim or other matter, directly or indirectly,affecting the Trusts. (12) To use income and/or principal to maintain in force any policies of life insurance which I may own on the life or lives of other persons or to receive in gift or 5 , . yE purchase or maintain previously existing insurance or annuity contracts for the benefit of any beneficiary, primary or contingent, if the trustees determine that the best interest of my family would be served by purchasing said contracts or by continuing such insurance in force,and to exercise all the powers given to the owner of such policies. (13)To employ counsel, auditors, custodians, accountants, appraisers, engineers, and other persons, professional or otherwise, as may be necessary for the proper administration of the Trusts,and to pay their compensation ftrom]trust funds. (1 4)To borrow money and as security thereof, to execute bonds and mortgages containing warrants of attorney,to confess judgment and to pledge personal property, (15)To incorporate any unincorporated business received from my estate. (16)To cavy on and conduct any business enterprise in which I may be engaged at my death. (17 To hold, invest and account for the separate Trusts in one or more consolidated funds, in whole or in part, as they may determine. As to each consolidated fund,the division into the various shares comprising such fund need be made only on the trustees' books of account, in which each Trust shall be allotted its proportionate part of the principal and income of the fund and charged with its proportionate part of the expenses thereof. No such holding shall, however, defer the vesting in possession of any estate created herein. (18)As to each Trust created herein,to exercise all the powers granted and all the duties imposed herein until such time after the termination of that Trust as the property included in that Trust has been fully distributed, and to do all other acts which, in their judgment, may be necessary or appropriate for the proper or advantageous management, investment or disposition of any property included in any Trust created herein.22 The Trustees shall be vested with reasonable discretionary powers and in all matters not otherwise herein specifically provided, they shall exercise their sound judgment and discretion in the performance of their duties hereunder. They shall not be liable for any error of judgment provided that such error is honestly made.' I hereby give unto my Executrix, or her successors, hereinabove named, the fullest power and authority in all matters or questions pertaining to the administration of my estate, executing the provisions of this my Last Will and Testament, including, but not by way of limitation, the power and authority to determine all doubtful questions which may arise in the construction of this my Last Will and Testament and the trust hereunder; I further hereby authorize and empower my Executrix, or her successors, pending settlement of my estate,to sell, convey, mortgage, lease, exchange, encumber or otherwise dispose of any and all of the property, real, personal or mixed, at any time belonging to my estate, either at public or private sale, without prior approval of any court,and at such times and for such price or prices and in any such case upon such terms as she may think best in her discretion, and I authorize and empower my said Executrix 22 Last Will and Testament of Robert M.Mumma,dated May 19, 1982,¶9. 23 Last Will and Testament of Robert M. Mumma, dated May 19, 1982,¶8. 6 to execute, acknowledge and deliver to the purchasers, grantees, mortgagees, vendees, assignees or other persons, such contracts, deeds, mortgages, bills of sale, and all other instruments of writing necessary or proper without obligation upon the latter to see to the proper application of the proceeds. She shall also have the power to compromise or otherwise to settle or adjust any and all claims, charges, debts and demands whatsoever against or in favor of my estate, as fully as I could do if living. She shall further be empowered to carry on and conduct any business enterprise [in] which I may be engaged at my death, to retain any assets, including stocks or securities which I may own at the time of my death, pending settlement of my estate, without regard as to whether or not such assets or securities are legal investments for fiduciaries, and may make distribution in kind to my trustees. Pending settlement of my estate, she shall also have the authority in her discretion to convert, sell, exchange or dispose of such assets and securities either for cash of for terms satisfactory to her and to acquire other assets without limitation to securities or investments as may be declared legal for investment for fiduciaries. She shall further be empowered to borrow money, and to pledge assets of my Estate as security therefor,for the purpose of paying taxes which may be levied upon or payable by my estate, in accordance with this Will in the event that funds in the hands of my Executrix, or her successors, shall be insufficient to pay such taxes,and if, in the opinion of my Executrix, or her successors, it appears that conversion of securities and other assets,real and personal,would then be made at a sacrifice. 24 The will also contained this language: . . . It is my desire that if expedient and possible, the businesses which I have personally directed during my lifetime and of which I have had an interest be continued for the benefit of and under the management and control of my immediate family.' In 1986, given the prospect of liquidations of corporations in which the estate held large majority interests, and in order to avoid the double taxation that would have resulted, pursuant to then-recent federal legislation, from a delay, the shareholders entered into two agreements whereby various assets of the dissolved corporations were to be held as tenants-in-common.26These agreements were known as MRA I and MRA II [MRA Standing for Mumma Realty ASSOCiateS27], and management of the tenancies-in- common was assigned to a corporation known as MRA, Inc., of which the co- 24Last Will and Testament of Robert M. Mumma,dated May 19, 1982,114. 25 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,113. 2 6 Opinion and Order of Court, dated March 24, 1992, Mumma v. Mumma, No. 66 Equity 1988 (Cumberland Co.) (Sheely, PT), affd. 433 Pa. Super. 660, 639 A,2d 846 (1993), allocatur denied, 539 Pa. 679,652 A.2d 1324 (1994). 27 See Petition To Authorize Plan of Liquidation, at 2-3,filed April 5,2012. 7 executors/co-trustees were the officers and directors.28Contrary to positions taken by the above-referenced beneficiary in subsequent litigation, (a) these agreements were valid and binding upon him and (b) he did not have a right of first refusal regarding the sale of a business being conducted pursuant to the agreements.29 In 1987, the above-referenced beneficiary, Robert A Mumma, 11, disclaimed his interest in the trusts.30 However, he later changed his mind'31 his petition to revoke the disclaimer was granted by the Honorable Harold E. Sheely of this CoUrt,32 and an appeal on behalf of the minor children was dismissed by the Superior Court as having been taken by their guardian ad litem without authority to do so under the guardian's assigned responsibilities.33 On July 17, 2010, the decedent's widow, Barbara McK. Mumma, died.34 The efforts of the surviving co-trustee of the marital and residuary trusts to distribute the trust assets to the remainderman, in kind or in money, have been approved by the Pennsylvania Superior Court in the context of the latest of several attempts by the aforesaid beneficiary to have her removed: With respect to the distribution of assets to the four sibling beneficiaries, the trial court determined that Morgan's testimony established that she is completing the process of obtaining valuations of the estate and trust assets and has asked the beneficiaries if they have any preferences regarding the receipt of particular assets or cash, and that she intends to make an equitable distribution of the assets to the beneficiaries after collecting this information. We agree with the trial court that this approach does not constitute any breach of fiduciary duty. Mumma, Sr, specifically provides Morgan in her role as his 21 Opinion and Order of Court, dated March 24, 1992, Mumma v. Mumma, No. 66 Equity 1988 (Cumberland Co.) (Sheely, PT), ajfd, 433 Pa. Super.660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679,652 A.2d 1324(1994). 2' Opinion and Order of Court, dated March 24, 1992, Mumma v. Mumma, No. 66 Equity 1988 (Cumberland Co.)(Sheely, PT), ajfd, 433 Pa. Super. 660, 639 A.2d 846 (1993),allocatur denied, 539 Pa.679, 652 A.2d 1324 (1994). 30 Disclaimer by Robert M. Mumma, 11,filed January 12, 1987. 31 Petition of Robert M. Mumma,II,To Revoke Disclaimer,filed June 20, 1989, 32 See Opinion and Decree Nisi,dated May 21, 1991. 33 Memorandum Opinion, filed July 18, 1994,No. 561 Harrisburg 1993 (Pa. Super. Ct.). 34 See In re Estate ofRobertM Mumma, 2012 PA Super 41, 43,41 A.3d 41,43. 8 x personal representative when making an equal distribution among the four sibling beneficiaries, with the power to decide how to "make distribution of any trust herein created, either in money or in kind, or partly in money and partly in kind." . . . Mumma, Sr. further indicated that the "judgment of the trustees as to what shall constitute an equitable distribution or apportionment shall be binding and conclusive upon the, beneficiaries hereof." . . 31 Numerous accounts have been filed during the course of the administration of the estate and trusts'36 including a Fourth and Final Account for the estate,37 a 2010 Accounting of Lisa Morgan and Barbara McK. Mumma, deceased, as Trustees of Marital Trust under the Will of Robert M. Mumma,38 and a 2010 Accounting of Lisa Mumma Morgan and Barbara McK. Mumma, deceased, as Trustees of Residual Trust under the 35 In re Estate ofRobert Robert M.Mumma, 2012 PA Super 41,50,41 A.2d 41, 50. 36 First and Interim Account for the Estate of Robert M. Mumma (April 12, 1986, through March 31, 1991), filed August 15, 1991; Second and Interim Account for the Estate of Robert M. Mumma(April 1, 1991,through March 31, 1996), filed June 1, 2000); Third and Interim Account for the Estate of Robert M.Mumma(April 1, 1996,through March 31, 1999),filed January 8, 2004;First and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (November 19, 1986), filed August 15, 1991; Second and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma. (April 1, 1991, through March 31, 1996), filed May 15, 2000; Third and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (April 1, 1996, through March 31, 1999), filed May 15, 2000; Fourth and Interim Account for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma. (April 1, 1999, through December 31, 2003), filed March 9, 2004; Fifth and Interim Account and Proposed Distribution of Assets for the Marital Trust Established under the Last Will and Testament of Robert M. Mumma (January 1, 2004, through July 17, 2010), filed September 10, 2010; Account of the Marital Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012), filed September 6, 2013; First and Interim Account for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma (November 24, 1986, through March 31, 1991), filed August 15, 1991; Second and Interim Account for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma(April 1, 1991,through March 31, 1996); filed June 1, 2000;Third and Interim Account for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma (April 1, 1996, through March 31, 1999), filed May 15, 2000; Fourth and Interim Account for the Residual Trust established under the Last Will and Testament of Robert M. Mumma.(April 1, 1999, through December 31, 2003), filed March 9, 2004; Fifth and Interim Account and Proposed Distribution of Assets for the Residual Trust Established under the Last Will and Testament of Robert M. Mumma (January 1, 2004, through July 17, 2010, filed September 10, 2010; Account of the Residual Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010,through December 31, 2012), filed September 6, 2013. 37 Fourth and Final Account for the Estate of Robert M. Mumma(April 1, 1999,through September 20, 2003), filed January 1, 2004. " Accounting of Lisa Morgan and Barbara McK. Mumma, deceased, as Trustees of Marital Trust under the Will of Robert M. Mumma,(January 1,2004,through July 17, 2010), filed September 10, 2010. 9 Will of Robert M. Mumma.34 A multitude of objections have been filed in response to the accounts.4' The initial auditor appointed by the court in the case ultimately found himself unable to reconcile the workload occasioned by the assignment with his other responsibilities as a practicing attorney41 and was replaced by Cumberland County attorney Joseph D. Buckley.42 Mr. Buckley conducted approximately 40 days of hearing'43 issued numerous interim reports,44 and ultimately produced a 130-page final 39 Accounting of Lisa Mumma Morgan and Barbara McK. Mumma, deceased, as Trustees of Residual Trust under the Will of Robert M. Mumma(January 1, 2004,through July 17, 2010), filed September 10, 2010. Most recently, an Account of the Marital Trust under the Will of Robert M. Mumma, Deceased (July 18, 2010, through December 31, 2012 (filed September 6, 2013) and an Account of the Residual Trust under the Will of Robert M. Mumma, Deceased(July 18, 2010,through December 31, 2012 (filed September 6, 2013) have been filed,and objections to these accounts have been filed on October 8,2013. These objections have been referred to a successor auditor, in the person of Anthony L. DeLuca,Esq.See Order of Court,dated November 7,2013. 'Statement of General Objections to the First and Interim Account for the Estate of Robert M. Mumma, Deceased and the First and Interim Accounts for the Marital and Residuary Trusts under Will of Robert M. Mumma, filed by Robert M. Mumma, H, October 4, 1991; Supplemental Statement of Objections to the Account of Barbara K. McK. Mumma and Lisa M. Morgan As Co-Executors of the Estate of Robert M. Mumma, Deceased, filed by Robert M. Mumma, H, May 27, 2004, Supplemental Statement of Objections to the First, Second, Third and Fourth Interim Accountings of Barbara K. McK. Mumma and Lisa M. Morgan As Co-Trustees of the Marital Trust under Will The Will [sic] of Robert M. Mumma, Deceased, filed by Robert M. Mumma, II, May 27, 2004; Supplemental Objections, filed by Robert M. Mumma, H, January 31, 2008; Statement of General Objections to Petition of Adjudication/Statement of Proposed Distribution of the Residuary Trust under Will of Robert M. Mumma, Deceased, filed by Robert M. Mumma, H, November 22, 2010; Statement of General Objections to Petition of Adjudication/Statement of Proposed Distribution of the Residuary Trust under Will of Robert M. Mumma, Deceased, filed by Robert M. Mumma, II, November 22, 2010; Objections of Robert M. Mumma, 11 to the Account of the Marital Trust July 18, 2010 to December 31, 2012, filed October 7, 2013, stricken, Order of Court dated October 10, 2013; Objections of Robert M. Mumma, 1I to the Account of the Residual Trust July 18, 2010 to December 31, 2012,filed October 7,2013,stricken, Order of Court, October 10, 2013; Objections of Robert M. Mumma, II to Account of Residuary Trust for Period July 18, 2010 to December 31, 2012,and Accompanying Petition for Adjudication Filed by Lisa M. Morgran [sic], Trustee, on September 6, 2013, filed October 8, 2013; Objections of Robert M. Mumma, H to Account of Marital Trust for Period July 18, 2010 to December 31, 2012, and Accompanying Petition for Adjudication Filed by Lisa M. Morgran [sic], Trustee, on September 6, 2013, filed October 8, 2013; Objections of Barbara Mann Mumma, filed September 15, 2008; Objections to the Account of the Marital Trust under the Will of Robert M. Mumma, Deceased, filed by Barbara Mann Mumma,November 22, 2010; Objections to Account of the Residuary Trust under the Will of Robert M. Mumma,Deceased,filed by Barbara Mann Mumma,November 22,2010. " See Order of Court, dated September 19,2008. 42 See Order of Court, dated September 19, 2008. 43 See Report of Auditor,filed August 7, 2013,at 2. 10 .. .. .. +. ., .2�+.+s......... ... t auditor's report.4' Following the filing of his final report, the aforesaid beneficiary filed suit against him.46 In his final report, the auditor recommended that the objections to the accounts be overruled, that the initial auditor be recompensed by the estate and trusts in the amount of $11,856.46 for his services, and that the aforesaid beneficiary be responsible for one-half the auditor's charges and one-half the estate's attorney's fees.47 DISCUSSION Given the dozens upon dozens of pages of objections to the auditor's report that have been filed in this estate, it is difficult to avoid a reference to the oft-quoted observation of the Honorable Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit: When I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. . . 48 Many of the objections are in a rambling, narrative form or so unspecific as to be difficult to address. For instance, a typical objection of the aforesaid beneficiary reads: The following"findings" of fact are objected to as contrary to the evidence presented to the Auditor: 188, 201, 212, 218, 232, 235, 240, 254, 288, 270, 282, 292, 293, 294, 295, 303, 306, 307, 310, 313, 319, 320, 321, 322, 324, 326, 327, 333, 334, 353, 355,358, 359, 364, 365, 369, 370, 372, 373, 393,399,424,427,435,465,46649 Another reads: "This matter is subject to another forum."S0 See, e.g., Auditor's Interim Reports, Orphans' Court Docket Entries 437,457, 507,603,640,and 708. 4'See Report of Auditor, filed August 7, 2013. 46 See note 3 supra. 47 See Report of Auditor, filed August 7, 2013,at 122, 124-25, 128-30. 48 Aldisert, The Appellate Bar: Professional Competence and professional Responsibility-A View from the Jaundiced Eye of One Appellate Judge, 1 I Cap. U.L.Rev. 445,458 (1982). 49 Supplemental and Corrected Objections of Robert M. Mumma, II to August 7,2013 Report of Auditor Joseph D. Buckley,Esquire,at 18,filed September 19,2013. 50 Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, Exhibit C, filed September 19,2013. 11 i In this opinion, in the interest of disposing of the objections to the auditor's report within the lifetime of the undersigned judge, the most significant objections will be addressed, with the less significant or less comprehensible ones being relegated to the auditor's discussion. Principles applicable to objections to accounts and judicial review of auditors' reports. Preliminarily, it may be noted that, as a general rule, objectants to accounts filed in the Orphans' Court bear the burden of proving the merits of their objections. See generally In re Estate of Westin, 874 A.2d 139 (Pa. Super. Ct. 2005); Estate of Geniviva, 450 Pa, Super. 54, 675 A.2d 206 (1996); In re Estate of D'Alessio, 2004 WL 3186286 (Phila. Co. 2004); Kubitsky Estate, 1991 WL 40853 (Bucks Co. 1991). The merits, in this context, include proof of causation of loss from any purported dereliction of duty on the part of a fiduciary. In re Mendenhall, 484 Pa. 77, 398 A.2d 851 (1979). With respect to judicial review of auditors' reports, it has often been observed that: [b)ecause of his better opportunity to judge of the intelligence and credibility of witnesses and their knowledge of the subject under investigation, an auditor's finding of fact from disputed testimony is entitled to great[weight)and should not be set aside except for very substantial reasons . . . . Dingee v. Wood, 228 Pa. 250, 251, 77 A. 440 (1910); see In re Nixon's Estate, 104 Pa. Super. 506, 159 A. 172 (1932); In re Elgin's Estate, 17 Pa. D & C.2d 31 (Northumberland Co. 1958). In this regard, however, the court is unable to agree with the contention of one of the parties' briefs51 that the findings of an auditor have the force of a jury verdict. In re Nixon's Estate, 104 Pa. Super. 506, 159 A. 172 (1932) (findings of auditor said entitled to great weight, but not to have effect of jury verdict). Proposed liquidation of some assets in terminated trusts in course of distribution. It appears to be a major objection to the auditor's report that the trustee's proposal to liquidate some assets of the terminated trusts in the course of distribution was deemed 51 See Brief of Barbara McK. Mumma (Deceased) and Lisa M. Morgan in Opposition to Objections of Robert M.Mumma, II to Auditor's Report,at 3. 12 acceptable by the auditor.12 In this regard, it is said to have been the testator's intent that, upon the termination of the trusts incident to the death of the testator's spouse, the remaindermen would each receive a share of the trusts' principal in precisely the state the principal existed when the termination event occurred, including a proportional share of each operating business, regardless of the practicality of such a strictly in-kind distribution of assets.53 In support of this position, language in the will directing payment of the principal of each trust, "as it [was] then constituted,"54 to the remaindermen is cited, as is the testator's expressed "desire" that, "if expedient and possible, the businesses which I have personally directed during my lifetime and of which I have an interest be continued under the management and control of my immediate family."" The aforesaid beneficiary also (a) invites an examination of the will of the father of the testator to support the proposition that the said beneficiary's own father intended that ownership of the businesses be retained by the remaindermen,56 and (b) faults the auditor for declining to credit the beneficiary's conjecture that someone must have removed documents from the testator's safe deposit box following his death that would have corroborated the beneficiary's positions' Several factors militate against the contention that the auditor was in error on this point. First, the language respecting the testator's desire that his businesses remain in the 52 See, e.g., Supplemental and Corrected Objections of Robert M. Mumma,U to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at IT76(c), 77, 144. 53 See, e.g., Supplemental and Corrected Objections of Robert M. Mumma,II to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire, filed September 19, 2013,at TT76(c), 77, 144. 54 See Supplemental and Corrected Objections of Robert M. Mumma, Il to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire,filed September 19, 2013,at 119. 55 Supplemental and Corrected Objections of Robert M. Mumma, 11 to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire,filed September 19,2013,at¶¶31-34. 56 See Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, filed September 19, 2013,at IM34-35. S7 See Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire,filed September 19, 2013,at¶27. 13 family was precatory as opposed to mandatory. See In re Lindsay's Estate, 311 Pa. 536, 166 A. 848 (1933) ("wish of testator that certain asset of trust not be sold by trustee held precatory and not mandatory); In re Dickinson's Estate, 209 Pa. 59, 58 A. 120 (1904) ("Where the words `wish' and `desire' are used in expressing a desire for an act to be done by some person named by the testator, they are generally precatory merely . . . ."}; see also Estate of Baselice, 2005 WL 3739297 (Phila. Co. Aug. 22, 2005) ("wish and desire" of testator that certain person be given right of first refusal with respect to purchase of estate asset held precatory), aff'd, 903 A.2d 56 (Pa. Super. Ct. 2006). Second, the precatory language was itself contingent—upon expedience and possibility 5 —neither of which, given the dysfunctional nature of the relationship that has developed among the remaindermen, has materialized as the testator had hoped. Third, the will expressly gave the trustee the discretion to distribute assets of the trusts otherwise than in kind.59 Fourth, the Superior Court has recognized this authority in ruling upon an earlier attempt by the aforesaid beneficiary to disqualify the trustee.6° See Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995) ("law of case" doctrine explained to stand for proposition that, upon remand for further proceedings trial court may not alter resolution of legal question previously decided by appellate court in matter). Finally, a fact-finder is entitled to believe all, part or none of the evidence presented in a case. See Boro Const.; Inc. v Ridley School Dist., 992 A.2d 208, 218 (Pa. Commw. Ct. 2010). There was no requirement that the auditor, nor is there a requirement that the court, find persuasive the beneficiary's uncorroborated testimony that a document or documents that would have helped his case must have been illegally removed from the testator's safe deposit box after he died. Relitigation of previously decided matters. It is strenuously argued that the auditor erred in accepting various findings in previous litigation. For instance, in "miscellaneous ss See Last Will and Testament of Robert M. Mumma,dated May 19, 1982,at�13. 59 See Last Will and Testament of Robert M.Mumma,dated May 19, 1982,at¶9,subparagraph 10. 6"See In re Estate of Robert M.Mumma, 2012 Pa. Super 41, 50,41 A.3d 41,50. 14 objections to findings of fact,"61 the aforesaid beneficiary disputes the auditor's recitation of 30 findings by the Honorable Harold E. Sheely of this court in a declaratory judgment action in 1992, wherein the executrices succeeded in obtaining the following determination: 1)The two tenancy-in-common agreements MRA I and MRA II signed by [the said beneficiary] on December 19, 1986,are binding upon him and grant him no right of first refusal as to any transfers by the executrices, Barbara McK. Mumma and Lisa M. Morgan, of the real estate,held by the MRA tenants-in-common when there is approval by a majority in interest; 2)The MRA general power of attorney which [the said beneficiary] executed on December 19, 1986, is valid and irrevocable, and pursuant to Section 14 of the MRA agreements, empowers Mrs. Mumma and Lisa to transfer properties held by the MRA tenancies-in-common;and 3) [The said beneficiary] was never given an oral right of first refusal to purchase Penny Supply, Inc., in June, 1987, in exchange for his promise to execute a power of attorney for Lot 1-B in Lemoyne. Barbara MeK .Mumma, Lisa M Morgan, and Linda M. Roth v. Robert M. Mumma, II and Barbara M. McClure, No. 66 Equity 1988 (Cumberland Co.) (Nov. 24, 1992) (November 5, 1992), affd, Order of Court, Nov. 5, 1993, No. 56 Harrisburg 1993 (Pa. Super. Ct.). In rejecting the position of the said beneficiary in the litigation, President Judge Sheely, in an extensive opinion, made 120 findings of fact,b2 no fewer than a quarter of which the beneficiary seeks to relitigate. It also appears that the said beneficiary seeks to relitigate the issue of restrictions on the transfer of an asset in which the estate held a large interest." In Robert M. 61 See Supplemental and Corrected Objections of Robert M. Mumma, 11 to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire, filed September 19, 2013,at¶62(a). 62 Opinion and Order of Court, dated March 24, 1992,Mumma v. Mumma, 66 Equity 1988 (Cumberland Co.)(Sheely,P.J.). 63 According to the beneficiary, "[c]ontrary to the findings and conclusions of the Auditor, there is substantial evidence of the existence of shareholder agreements . . .prohibiting the transfers of stock of Mumma family entities, such as Pennsy Supply." Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, at 8, filed September 19, 2013. 15 Mumma, II v. Penny Supply, Inc.,64 the undersigned judge rejected, inter alis, the beneficiary's position that such restrictions continued to be in effect. The affirming opinion of the Superior Court described the declaratory judgment action brought by the beneficiary succinctly: Appellant brought this declaratory judgment action in 1999 against Appellee. The action involves a construction and quarrying company that was founded by Appellant's grandfather and eventually, after various corporate actions, operated under the name Pennsy Supply, Inc. In 1982, Pennsy Supply, Inc. changed its name to Nine Ninety-Nine,Inc.,canceled all of its outstanding shares, and issued replacement shares in the new corporate name. Pennsy Supply,Inc. became a wholly-owned subsidiary of Nine Ninety-Nine Inc. The assets that were held in the name Nine Ninety-Nine,Inc.,as well as other construction and quarrying assets owned by the Mumma family were sold in 1993 to an Irish corporation for $34,000,000. Appellant initially opposed the sale but ultimately joined in it, receiving$3,000,000. Appellant brought this declaratory judgment action requesting a declaration that he retained an ownership interest in a corporation known as Pennsy Supply Inc. (no comma) which, according to Appellant, operated as a separate and distinct entity from Pennsy Supply, Inc. (with a comma). He produced a stock certificate issued in 1963 showing that he owns 314 shares of Pennsy Supply Inc. (no comma) and claims in this action that the entity with no comma owns the quarry assets formerly owned by the Mumma family,among other business interests. In other words, Appellant claims to own the assets sold for$34 million in 1993. Appellant's position is that two corporations simultaneously existed from 1958 to 1993, one with a comma and the other without a comma. The Irish corporation paid $34,000,000 for the company with a comma, which owns nothing, while Appellant,who received$3,000,000 of that purchase price,owns the company without a comma,and that company owns all of the assets. Alternatively, Appellant requested a declaration that a 1961 shareholder's agreement gave Appellant an option to purchase substantial assets operated by Pennsy Supply, Inc.65 The doctrine of collateral estoppel prevents relitigation of issues previously decided in a competent forum. Commonwealth v. fieagarden, 696 A.2d 169 (Pa. Super. Ct.. 1997). "[T]he only requirements to the doctrine of collateral estoppel are (1) that the issue or issues of fact determined in a prior action be the same as those appearing in a subsequent action , , , [and] (2) that the party against whom the defense is invoked is Opinion and Order of Court,dated May 17, 2002,Robert M Mumma, II v. Pennsy Supply,Inc., No. 99- 2765 Equity(Cumberland Co.)(Oler, J.). 15 Memorandum Opinion, dated July 8, 2013,Mumma v. Pennsy Supply, Inc-No. 1352 MDA 2002 (Pa. Super.Ct.)(footnote omitted). 16 identical to or in privity to the party in the first action." Thompson v. Karastan Rugmills, 228 Pa. Super. 260, 265, 323 A.2d 341, 344 (1974). There was no reason for the auditor in this estate to disregard, or propose alternatives to, facts previously decided in a competent forum and pertinent to the current litigation. Purported overfunding of marital trust to benefit testator's spouse. It is also vigorously argued in objections to the auditor's report that the auditor erred in declining to accept the proposition that the executrices overfunded the marital trust and underfunded the residual trust in order to benefit the testator's spouse through the vehicle of annual withdrawals of principal for her benefit. In this regard, reference is made to the distinction in the will between permitted withdrawals from the two trusts: with respect to the marital trust, decedent's spouse was to receive (a) the annual income therefrom, (b) such amount of the principal as deemed appropriate by the co-trustee to maintain her accustomed standard of living, and (c) the greater of $5,000.00 or five percent of the principal of the trust annually upon request, said invasion of principal to be "noncumulative";67 with respect to the residual trust, decedent's spouse was to receive (a) the annual income therefrom and (b) such amount of the principal as deemed appropriate by the co-trustee to maintain her accustomed standard of living.68 The amount to be allocated to the marital trust has been previously described.b9 For several reasons, the court finds itself in agreement with the auditor on this point. First, the issue of the propriety of the funding of the two trusts involved a"battle of experts" in terms of opinion testimony.70 In such a case, it is the responsibility and 66 See Supplemental and Corrected Objections of Robert M. Mumma, U, to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire,filed September 19, 2013, at 1179-103, 113-22. 67 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,¶7. 68 Last Will and Testament of Robert M.Mumma,dated May 19, 1982,¶8. 69 See text accompanying note 15,supra. 70 See Testimony of Jonathan M. Crist,Transcript of Auditor's Hearing dated April 21, 2009, at 164, 202; Testimony of George Hadley, Transcripts of Auditor's Hearing dated December 14, 2009, December 15, 17 D prerogative of the trier-of-fact to act "as the ultimate referee based upon [his or her] assessment of the credibility of the experts." Commonwealth v. Puksar, 597 Pa. 240, 255, 951 A.2d 267, 276 (2008). "[A] trier of fact is not bound by the testimony of[a certain] expert witness and is under no obligation to accept the conclusions of an expert witness. George v. Ellis, 820 A.2d 815, 817 (2003). Second, the objection presupposes a fraudulent scheme on the part of (a) Ms. Morgan, who is a member of the Pennsylvania bar in good standing, and(b) the testator's spouse and mother of the remaindermen, in concert with others. Nothing in their nature, as exemplified by the patience with which each endured the interrogation of offspring and siblings during the many days of auditor's hearings, suggests such a malevolent trait in either executrix/trustee. Indeed, the refusal of the testator's spouse to accept remuneration for her services as executrix/trustee under the wi1171 and her preference that the fees of the co-executrix/trustee be withdrawn from trust income, to which the spouse would have been entitled, rather than trust principal,72 are hardly indicative of a person desirous of appropriating her children's inheritance. Furthermore, Ms. Morgan could have had as much to lose as the other remaindermen from the putative overfunding. Third, the principal of either trust could have been invaded for the benefit of the testator's spouse had the trustees desired to do so, without resort to the problematic device of trying to overfund the marital trust.73 And, fourth; it appears that ultimately the Internal Revenue Service and estate agreed upon the valuations attributed to trust assets.74 The auditor well summarized his view of the record on this issue as follows: 2009,December 17, 2009 and December 18,2009;Testimony of Daniel Johnson,Transcript of Auditor's Hearing dated October 26, 2009, at 2400-2409; Testimony of Joseph D.C. Wilson, Transcript of Auditor's Hearing dated October 26, 2009,at 2461-2484, 2495-2520. 71 See Testimony of George Hadley,Transcript of Auditor's Hearing dated December 17, 2009,at 4169. 72 See Testimony of George Hadley, Transcript of Auditor's Hearing dated December 17, 2009, at 4168- 4169. 73 See Last Will and Testament of Robert M. Mumma,dated May 19, 1982,at 1f 1(7-8. 74 See Testimony of Joseph A. O'Connor, Jr., Transcript of Auditor's Hearing dated August 3, 2009, at 1645-1647. 18 The Objector has not met his burden of proving that [the.executrices] did something imprudent or improper. In retrospect it is easy to state a party might have completed a task in a differing manner. Here the executrices sought the advice and counsel of numerous professionals. Mr. Hadley[, a certified public accountant long utilized by the Mumma enterprises in his professional capacity,] the individual with the most independent knowledge and the person most familiar with the businesses worked to calculate values. Many scenarios were reviewed . . . . Their actions were proper under the terms of the decedent's last Will and Testament and were properly administered in accordance with their duties as Executrices.71 To the extent that a purely legal issue is involved in the contention regarding overfunding of the marital trust, the court is unable to improve upon the analysis contained in the Appendix to the brief of the co-executrices/trustees on the subject: Objectors claimed that Mrs. Mumma, Mrs. Morgan and their advisors misinterpreted the will with respect to the value of the Marital Trust. They claim that the result was an overfunding of the Marital Trust by hundreds of thousands of dollars. Their proffered reading of the will in this regard is incorrect. All the parties and their experts agree that the Marital Trust bequest described in Mr. Mumma, Sr.'s will is a 'pecuniary formula marital'—i.e.,the bequest is of a specific amount which is described in the will—as contrasted with a so-called `fractional share' formula,which calls for a marital bequest of a fraction of a portion of the estate. The specific amount described in Mr. Mumma, Sr.'s will and payable to the Marital Trust is plainly set forth in Article SEVENTH: an amount equal to fifty (501/o)percent of my total gross estate.as finally determined for Federal Estate Tax purposes, taking into account and including therein, for computation purposes,my undivided interest in the value of all my interests in property which pass or have passed to my wife under other provisions of this Will or otherwise than under this Will. . . . (Exh A-4). Under this provision, property passing to Mrs. Mumma outside the will is nonetheless part of the amount to which the 50% calculation is applied. The clause containing the language regarding inclusion of assets passing outside the will directly follows "my total gross estate as finally determined for Federal Estate Tax purposes,"and therefore clearly was intended to modify that language. Because the total gross estate as finally determined by the IRS was$17,296.337(Exh.A-3),the pecuniary amount yielded by the calculation prescribed in Article SEVENTH is $8,648,169. Both Mrs. Morgan's and Mrs. Mumma's expert, David Cleaver, and Mr. Mumma, 11's expert, Jonathon Crist, agreed that Mrs. Mumma's and Mrs. Morgan's interpretation is correct. (Cleaver 3788- 91; Crist 154, 202, 222). However, Daniel Johnson, called as an expert by Babs [Barbara M.] Mumma, testified that he believed the words "taking into account and including therein, for computation purposes, my undivided interest in the value of all my interests in property which pass or have passed to my wife under other provisions of this Will or otherwise 7'Report of Auditor,filed August 7, 2013,at 85. 19 than under this Will" required that the amount bequeathed to the marital trust must be reduced by the value of specific legacies to Mrs. Mumma made in other parts of the will and also by the value of property(such as insurance)includable in Mr. Mumma's taxable estate but passing to Mrs. Mumma outside the will. Based on his interpretation, Babs Mumma's expert, Joseph Wilson, calculated that Mrs. Mumma and Mrs. Morgan overstated the pecuniary amount owed to the Marital Trust by$861,018. (Wilson Johnson 2493-94). Mr. Johnson thus apparently interprets the words "taking into account and including therein"as equivalent to language commonly found in wills drafted before the enactment in 1981 of the unlimited estate tax marital deduction. The standard formula clause in those wills reduced the marital deduction bequest by amounts passing to the spouse under other will provisions or outside the Will to avoid overfunding the marital bequest which at that time was limited to one-half of a decedent's gross taxable estate. Such old clauses typically read"fifty percent of my gross estate,excluding therefrom the value of all property passing to my wife under other Will provisions or outside my Will." Mr. Mumma, Sr., of course, adopted an alternative formulation: "taking into account and including therein." The change of language from "excluding therefrom" to "including therein," reflected Mr. Mumma, Sr.'s obvious intention and clear specification that the marital Trust, which was certain to pass estate tax free and which would be Mrs. Mumma's primary source of support (the Residuary Trust would bear any, taxes and estate settlement costs), and over which he granted Mrs. Mumma a right to withdraw annually 5% of the principal, equal 50%of the value of all his taxable assets—whether they be other probate assets or property passing outside his will. (O'Connor 5150-51; Cleaver 3789-91). Thus, both the language of Mr. Mumma, Sr.'s will and the circumstances surrounding its drafting fully support Mrs. Mumma and Mrs. Morgan's interpretation.76 Purportedly unreasonable legal expenses incurred by co-executrices/trustees. It is argued that the executrices/trustees have spent too much on legal fees.77 By way of example, it is argued that the successful pursuit of litigation in Florida by the co- executrices/trustees against the aforesaid beneficiary arising out of his misappropriation of property of a corporation in the residuary trust constituted a breach of their fiduciary duties, inasmuch as the legal fees associated with the litigation were disproportionate to its benefit.'$ It appears from the Florida records that the property found to have been misappropriated by the said beneficiary had a value of hundreds of thousands of dollars; it also appears that the plaintiffs were found, pursuant to a Florida statute, to be entitled to 76 Appendix to Brief of Barbara McK. Mumma. (Deceased) and Lisa M. Morgan in Opposition to Objections of Barbara Mumma to Auditor's Report,at 8-10(footnote omitted). 77 See Objections of Barbara M. Mumma to Report of Auditor Docketed August 7,2013,filed September 16,2013,at 36-38. 78 Objections of Barbara M.Mumma to Report of Auditor Docketed August 7,2013,at 27. 20 - � - � 1, an award of attorney's fees at all levels of the litigation, and that they were entitled to interest.'9 First, to the extent that a finding of an improper expenditure by the fiduciaries for pursuing this litigation would benefit the aforesaid beneficiary which it would, through the vehicle of a surcharge—it would represent a repudiation of the legal maxim nemo ex suo delicto meliorem suan conditionem facere potest—no man should profit from his own wrong. Second, where the auditor has estimated that unsuccessful legal machinations by the said beneficiary have cost the estate $5,000,000 in legal fees,80 and where it is said that the estate lost another $10,000,000 due to the effect of his conduct upon the sale of a major estate asset,81 the fiduciaries had, in the court's view, an obligation not to encourage his activities by permitting the outright misappropriation of a trust asset, even though the cost of doing so might be far from nominal. Finally, the success of the litigation from the fiduciaries' standpoint as described above has fully demonstrated the financial wisdom of their course of action. It is also argued that "[t]he evidence presented to Auditor Buckley provided no justification for having two different major law firms represent Lisa Morgan and, before her death, Barbara McK. Mumma, as co-executors and co-trustees throughout the long litigation of this case. Lisa Morgan claimed that this somehow reduced the total legal fees because the Marston [correctly, Martson] firm's hourly rates were less than those charged by Morgan Lewis & Bockius."82 In this case, involving a multi-million dollar estate, with major challenges to the inexperienced fiduciaries in terms of (a) continuing to operate numerous business that were vulnerable to the will of on-demand creditors 83 and (b) fending off unparalleled and, 7'See Mumma v. Mumma, 780 So. 2d 1001, 1003,Fla.App. 4 Dist.,2001, 80 See Report of Auditor, filed August 7, 2013,at 75,'444. 81 See Report of Auditor, filed August 7, 2013,at 106. 82 Objections of Barbara M. Mumma to Report of Auditor Docketed August 7,2013,at 36. 83 See Testimony of Barbara McK. Mumma, Transcript of Auditor's Hearing dated April 23, 2009, at 716-23. 21 in the court's view, unprincipled legal attacks on the part of a seemingly, inexhaustible beneficiary, it is hardly surprising that the fiduciaries chose to avail the estate and trusts of highly qualified professional counsel in order to conserve, preserve and grow their assets. The charges of these professionals were fully accounted for and justed in testimony before the auditor.85 Purportedly inaccurate valuations of estate assets. Objections are made to the auditor's acceptance of the fiduciaries' valuations of various assets.86 The strength of these contentions is typified by the assertion that the auditor erred in declining to fault the accountants for valuing a certain asset on the basis of its recent purchase price rather than incurring the expense of an appraisal.S7 Valuation of an asset on the basis of the price it commanded at a recent sale is one of the most, if not the most, reliable of methods of valuation sanctioned by the courts. Glen Alden Coal Co. a Schuylkill County, 345 Pa. 159, 27 A.2d 239 (1942). It may also be noted that other valuations employed by the fiduciaries were fully supported by competent witness testimony 88 and that valuations were ultimately agreed upon between the estate and Internal Revenue Service.89 Purportedly improper fiduciary accounting for a certain tractor. In this multi- million dollar estate, objection is made to the auditor's report that "[t]he word `tractor' 84 See note 3 supra. ss See Testimony of Lisa M. Morgan, Transcript of Auditor's Hearing dated April 28, 2010, at 5971-73; see, e.g., Testimony of Ivo V: Otto, III, Transcript of Auditor's Hearing dated June 14, 2010, at 6843-48; Testimony of Joseph A. O'Connor,Jr.,Transcript of Auditor's Hearing dated April 22, 2010,at 5226-27. 86 See Supplemental and Corrected Objections of Robert M. Mumma, I1 to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, filed September 19,2013,at 23-27. $' See Supplemental and Corrected Objections of Robert M. Mumma, II, to August 7, 2013 Report of Auditor Joseph D. Buckley, Esquire, filed September 19, 2013, at 33-34, x'((128-30 (noting that the objection referred to the Auditor's finding that the Bender property was valued at the purchase price,paid four months prior to the decedent's passing. See Report of Auditor, filed August 7,2013,at 88-89). ss See, e.g., Testimony of George Hadley, Transcript of Auditor's Hearing dated December 14, 2009, at 3601-03, 3624-26; Testimony of Harry Lake, Transcript of Auditor's Hearing dated June 19, 2009, at 1444-46;Testimony of George Hadley, Transcript of Auditor's Hearing dated April 20, 2010,at 5075-77. "See tTestimony of Joseph A. O'Connor, Jr.,Transcript of Auditor's Hearing dated August 3, 2009, at 1646-47. 22 does not appear anywhere in the Auditor's Report," notwithstanding that an objection in 2010 to an account pertaining to the residuary trust contended that "Whe Trustee identifies the purchase of a $26,772 tractor as an administrative expense and does not identify the tractor as an asset of the [residuary] trust nor identify the tractor as being sold.s90 The response to this on behalf of the co-executrices/trustees is satisfactory to the court: In response to Babs [Barbara M.] Mumma's questions [at the auditor's hearing], Mrs. Mumma explained the background of the purchase of the tractor.The purpose of the tractor was for use in mowing of the Amity Hall Horse Farm, an asset owned by Mumma Realty Associates and governed by the MRA-II Agreement (Morgan (1595-96). Due to MRA-II's shortage of cash, the Residual Trust, which owned more than 80% of the MRA-11 assets, loaned funds to Mumma Realty Associates to purchase the tractor. (Morgan 1596). The tractor became an asset of Mumma Realty Associates, and the receivable from Mumma Realty Associates was reflected in the Account for the Residual Trust. (Acct of Residual Trust,Jan 1,2004-July 17,2010, Sch F at 22; Morgan 1596-99). Babs Mumma offered no evidence to show either any impropriety with the loan, or that the Residual Trust somehow was deprived of the value of the loaned funds. In fact, of course, as the overwhelming majority owner of the Amity Hall Horse Farm under the MRA-11 Agreement, the Residual Trust derived value from the maintenance and upkeep of the property,which the appraisals obtained by Mrs. Mumma and Mrs. Morgan showed appreciated in market value from$1 million at the date of Mr. Mumma, Sr.'s death (Exh T-8)to$5 million when Mrs. Mumma passed away. (Exh T-8,A02-1002). In any event, because the cost of the tractor was charged against income, the principal beneficiaries were not adversely affected . . .because Mrs. Mumma was entitled to all of the income from the Residual Trust. (Acct of Residual Trust, Jan 1, 2004-July 17, 2010, Sch C-2 at 40). The expenditure thus simply reduced the amount of money she was owed as income, while all of the principal beneficiaries derived the benefit of the tractor as an asset of Mumma Realty Associates.91 Failure of auditor to note that fiduciary Lisa M. Morgan ultimately moved from Harrisburg area. Barbara M. Mumma, among her objections to the auditor's report, notes that the auditor correctly found that Ms. Morgan "and her husband, then a practicing attorney himself, moved to Harrisburg in 1987."92 Thereupon, according to the auditor, 90 Objections of Barbara M. Mumma to Report of Auditor Docketed August 7, 2013,filed September 16, 2013, at 6. "' Supplemental Post-Hearing Brief of Barbara McK. Mumma (Deceased) and Lisa M. Morgan As Executrices of and Trustees under the Will of Robert M. Mumma,at 20-21. 92 Objections of Barbara M. Mumma to Report of Auditor Docketed August 7, 2013,filed September 16, 2013,at 41;see Report of Auditor, filed August 7,2013,at 52. 23 she "worked full time on Real Estate matters and was general counsel for all the Mumma companies and affiliated business[es] handling contract, personnel and labor issues"" while "[the decedent's spouse] worked as the chief executive officer for all the Mumma businesses.s94 The fiduciaries then "hired a full time property manager and appraisers," according to the auditor.9' However, the objector complains that the auditor failed to also state that Ms. Morgan ultimately moved from the Harrisburg area. At oral argument counsel for this objector, Barbara M. Mumma, urged that the court endeavor to separate the wheat from the chaff with respect to the multitude of objections filed to the auditor's report. With this in mind, the court has found itself unable to place this objection in the category of wheat. Assessment of Attorney's Fees and Costs. The auditor is faulted by the aforesaid beneficiary, Robert M. Mumma, II, for his recommendation that the beneficiary bear responsibility for one-half of the estate's attorney's fees and for half of the costs of the auditor's proceedings.96 The auditor's observation that the beneficiary had proven "obdurate" and "unprofessional toward the Court, [the auditor's] position, the other attorneys and opposing parties" is dismissed by the objector as "conclusory."97 In this regard,it may be pointed out that the assessment of attorney's_fees in estate contests following auditors' hearings is common practice in the Commonwealth. See, e.g., Estate ofBNuner, 456 Pa. Super. 705, 691 A.2d 530 (1997). It has also long been the rule that costs of auditors' proceedings may be appropriately apportioned among the parties. Clauser's Estate; 84 Pa. 51 (1877). 93 Report of Auditor, filed August 7, 2013,at 52. 94 Report of Auditor, filed August 7, 2013,at 52. 9s Objections of Barbara M. Mumma to Report of Auditor Docketed August 7, 2013, filed September 16, 2013,at 52. 95 See Supplemental and Corrected Objections of Robert M. Mumma, II, to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire, filed September 19, 2013,at 35-36,IN135-41. 97 See Supplemental and Corrected Objections of Robert M. Mumma, II to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire, filed September 19, 2013,at 35-36,¶ 135-41. 24 Given the beneficiary's conduct in this case, the court is in full agreement with the recommendations of the auditor on this point. Accordingly, a hearing will be scheduled to determine the amounts to be assessed. Surcharge. It follows from the foregoing that the court does not believe that the various objections to the accounts of the fiduciaries demonstrate that they fiduciaries should be subjected to surchargs for wrongdoing. In this regard, it is well settled that the initial burden of proving the propriety of such a sanction is upon the objectors. In re Dobson's Estate, 490 Pa. 476, 417 A.2d 138 (1980). It may also be pointed out that the testator's will specifically provided that the fiduciaries "shall not be liable for any error of judgment provided that such error is honestly made."9$ No dishonesty on the part of the fiduciaries has been perceptible to the court. Benfrciary's renewal of motion for extension of time to file objections to auditor's report. Immediately following an "Introduction" to his 114-page compilation of objections to the auditor's report, in which the aforesaid beneficiary decries the delay in resolution of the testator's estate, is a section entitled "Renewal of Motion for Extension of Time to File Objections!'" In this section, the said beneficiary complains that the court erred in granting him an extension of only 30 days beyond the period provided in the local orphans' court rulesloo to file objections to the report, when he had requested a 55-day extension.10 1 He adds that "[i]t is expected that further supplementation will 98 Last Will and Testament of Robert M. Mumma,dated May 19, 1982,at¶8. 99 Supplemental and Corrected Objections of Robert M. Mumma, I1 to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire, filed September 19,2013,at 4-5. 100 See C.C.O.C.R. 8.7-2 (20-day period provided for filing objections to auditor's reports). 10t Motion of Robert M. Mumma, II for Extension of Time To File Objections to August 7, 2013 Report of Auditor Joseph D. Buckley, Esqulire, filed August 14, 2013. It may be noted that the court subsequently also granted the beneficiary an extension of time within which to file his brief on the objections. Order of Court, dated August 20, 2013. 25 consist primarily of providing more specific citations to hearing transcripts and evidence in the record . . . . „1oa Continuances in judicial proceedings are generally relegated to the sound discretion of the court. Birdsall v Carbon County Bd. of Assessment, 168 Pa. Commw., 266, 649 A.2d 740 (1994). In this instance, given the background of delays occasioned by the said beneficiary and his intimate familiarity with the case, the court was of the view that an extension that more than doubled the time allotted in the rule for the filing of objections was sufficient. CONCLUSION As President Judge Hess of this court wrote many years ago in the context of another case in which he perceived that a party "ha[d] attempted to gain [a favorable result] by simple attrition of the court system":103 "The motions go on and on, but we will not."104 '02 Supplemental and Corrected Objections of Robert M. Mumma,II to August 7, 2013 Report of Auditor Joseph D. Buckley,Esquire,filed September 19,2013,at 5,117. `3 Commonwealth v. Appel, 43 Cumb. L.J. 277(1994). 10°Commonwealth v. Appel, 43 Cumb. L.J.277,283 (1994). As noted in the introduction to this opinion, objections have also been filed to final auditor's report by the accountants. Objections of Barbara McK. Mumma (Deceased) and Lisa Morgan As Executrices of and Trustees under the Will of Robert M. Mumma to Report of Auditor, filed September 16, 2013, A review of these objections reveals that they are either to the style of the report, to obvious typographical errors, or to findings that do not rise to the level of determinative factors. For instance, while conceding that the report"represents . . . a herculean effort to grapple with the highly-contested administration of the Estate and the Trusts by Mrs. Mumma and Lisa from April 1986 until July 2010" (id.,at 2), the accountants argue that occasional "inconsistent terminology"with reference to various persons or entities "poses the potential for confusion in the mind of any court that might review the Report in the context of an appeal . . . ."Id., at 2. Indeed, the accountants have appended to their objections a 128-page revised version of the auditor's report for the court's signature, with consistent terminology--e.g., with Barbara McK. Mumma being invariably identified as"Mrs.Mumma."Id., at 17-150. Examples of other objections of the accountants relate to (a) the correct identity of an attorney who, when the aforesaid beneficiary attempted to abscond with various corporate records during a discovery session, chased him down the street and managed to retrieve the documents(id., at 12-13), (b)the state in which a certain corporate entity was incorporated (id., at 8-9), (c) an obvious typographical error in the form of an omission of "not" preceding the word "proper" (id., at 13-14), and (d) another obvious typographical error in reference to the aforesaid beneficiary's record of failure in prior litigation(id., 14), and so forth. 26 ORDER OF COURT AND NOW, this 30th day of April, 2014, upon consideration of the various objections, to the final auditor's report filed in the above-captioned estate, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The objections are dismissed and the accounts to which objections have been filed are confirmed;10' and 2. In accordance with the auditor's recommendation, a hearing to determine attorney's fees and costs is scheduled for Wednesday, June 25, 2014, at 9:30 a.m., in Courtroom No. 4, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Isl J. Wesley Oler, Jr. J. Wesley Oler, Jr., S.J. Joseph D. Buckley, Esq. 1237 Holly Pike Carlisle, PA 17013 Auditor Anthony L. DeLuca, Esq. 113 Front Street Boiling Springs, PA 17007 Successor Auditor The final auditor's report in this case is, in the court's view, a monument to juridical perseverance under highly adverse conditions and a model of clarity given the complexity of the circumstances. The report would not be improved by standardizing its nomenclature. The remaining objections of the accountants,while not technically inaccurate,will also be dismissed on de minimis grounds. 105 At oral argument on the objections to the auditor's report the parties indicated that it would be premature at this time to approve a certain schedule of distribution. 27 Taylor P. Andrews, Esq. Andrews& Johnson 78 W. Pomfret St. Carlisle, PA 17013 Former Auditor Ivo V. Otto, HL Esq. George B. Faller, Jr., Esq. Martson Law Offices 10 East High Street Carlisle, PA'17013 Brady L. Green, Esq. Wilbraham, Lawler& Buba 31st Floor 1818 Market Street Philadelphia, PA 19103 Robert M. Mumma, II Box F Grantham, PA 17027 Richard F. Rinaldo, Esq. Williams Coulson LLC 16th Floor One Gateway Center Pittsburgh, PA 15222 Ms. Linda M. Mumma P.O. Box 30436 Bethesda, MD 20824 28 � , r . IN RE: ESTATE OF ROBERT IN THE COURT OF COMMON PLEAS OF M. MUMMA, Deceased CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 IN RE: OBJECTIONS TO FINAL AUDITOR'S REPORT ORDER OF COURT AND NOW, this 30th day of April, 2014, upon consideration of the various objections to the final auditor's report filed in the above-captioned estate, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. The objections are dismissed and the accounts to which objections have been filed are confirmed;* and 2. In accordance with the auditor's recommendation, a hearing to determine attorney's fees and costs is scheduled for Wednesday, June 25, 2014, at 9:30 a.m., in Courtroom No. 4, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, xzz v, Z. /��Z, Wesley Ord, Jr., S.J.V At oral argument on the objections to the auditor's report, the parties indicated that it would be premature at this time to approve a certain schedule of distribution. Joseph D. Buckley, Esq. 1237 Holly Pike Carlisle, PA 17013 Auditor Anthony L. DeLuca, Esq. 113 Front Street Boiling Springs, PA 17007 Successor Auditor h Taylor P. Andrews, Esq. Andrews& Johnson 78 W. Pomfret St. Carlisle, PA 17013 Former Auditor Iva V. Otto, 11I, Esq. George B. Faller, Jr., Esq. Martson Law Offices 10 East High Street Carlisle, PA 17013 Brady L. Green, Esq. Wilbraham, Lawler& Buba 31 st Floor 1818 Market Street Philadelphia, PA 19103 Robert M. Mumma, Il Box F Grantham, PA 17027 Richard F. Rinaldo, Esq. Williams Coulson LLC 16th Floor One Gateway Center Pittsburgh, PA 15222 Ms. Linda M. Mumma F.O. Box 30436 Bethesda, MD 20824 ORPHANS' COURT DIVISION COURT OF COMMON PLEAS OF In Re: ROBERT M MUMMA CUMBERLAND COUNTY PENNSYLVANIA NO.21-86-0398 CERTIFICATE OF SERVICE OF ORDER ORDER DATE: 09/25/2014 JUDGE'S INITIALS: JWO TIME STAMP DATE: 9/25/2014 IN RE: SUPPLEMENTAL OPINION PURSUANT TO PA RAP 1925 ................................................................ SERVICE TO: ANTHONY L DELUCA 1.13 FRONT STREET PO BOX 358 BOILING SPRINGS PA 17007 SHAUN OTOOLE 250 PINE STREET HARRISBUG PA 17101 IVO OTTO, 10 E HIGH STREET,CARLISLE PA 17013 BRADY GREEN 1818 MARKET STREET FLOOR 31 PHILADELPHIA PA 19103 RICHARD RINALDO,ONE GATEWAY CENTER, 1.6TH FLOOR,PITTSBURGH PA 15222 LINDA MUMMA,PO BOX 70 MECHAN ICSBURG PA 17055 METHOD OF MAILING: ENVELOPES PROVIDED BY: ® USPS ❑PETITIONER ❑ RRR ® JUDGE ❑ HAND DELIVERED ❑ CLERK OF ORPHANS COURT ❑ OTHER MAILED: 09/25/2014 .............................................................................. SERVICE TO: METHOD OF MAILING: ENVELOPES PROVIDED BY: ❑ USPS ❑PETITIONER ❑RRR ❑ JUDGE ❑HAND DELIVERED ❑ CLERK OF ORPHANS COURT ❑ OTHER MAILED: Deputy Clerk of Orphans' Court