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HomeMy WebLinkAbout98-378 orphansIN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF : ORPHANS' COURT DIVISION MARGARET HULBERT, DECEASED : NO. 21-98-378 IN RE: OBJECTIONS TO AUDITOR'S REPORT AND RECOMMENDATIONS Before HOFFER, P.J. HESS~ J. OLER, J. ORDER HOFFER, P.J.: ~ ~ AND NOW, thi~ ~day of June, 2001, after careful consideration of all objections raised, the Exceptions to Auditor's Report and Recommendations Filed by Petitioner, and the Objection to Auditor's Report and Recommendation, by Cynthia M. Plante and Cecelia J. Nicoullaud, Co-Administrators of the Estate of Margaret Hulbert, are dismissed. The costs of the audit are to be deducted from the distributed Estate. By the Court, Jeffrey E. Piccola, Esq. Boswell, Tintner, Piccola & Wickersham 315 North Front Street P.O. Box 741 Harrisburg, PA 17108-0741 Attorney for Petitioner Dorothy K. Appleby, Trustee of the Kent 1994 Trust Gary E. French, Esq. Keefer Wood Allen & Rahal, LLP 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 And Richard L. Webber, Jr., Esq. Law Offices of Michael J. Hanft 19 Brookwood Avenue, Suite 106 Carlisle, PA 17013 Attorneys for Respondents Cecilia Nicoullaud and Cynthia Plante, Co-Administrators of the Estate of Margaret Hulbert, Deceased IN RE: : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ESTATE OF : ORPHANS' COURT DIVISION MARGARET HULBERT, DECEASED : NO. 21-98-378 IN RE: OBJECTIONS TO AUDITOR'S REPORT AND RECOMMENDATIONS Before HOFFER, P.J., HESS, J., OLER, J. OPINON HOFFER, P.J.: On March 27, 1998, Margaret Hulbert, a resident of Cumberland County, Pennsylvania, died intestate. On May 4, 1998, Letters of Administration were granted to Cecilia J. Nicoullaud and Cynthia F. Plante (hereinafter "Respondents"). On June 24, 1999, the Estate of Lucille Amlie Kent, by Dorothy K. Appleby (hereinafter "Petitioner") filed a Petition for Turnover of the Assets of the Estate for Accounting. With leave of court, this petition was withdrawn on August 21, 1999. On February 4, 2000, Respondents' proposed First and Final Account was filed, with notice being given to Petitioner. The Schedule of Proposed Distribution provided that the balance of the Estate was to be distributed in equal shares to Respondents. On February 23, 2000, Petitioner filed a petition objecting to the proposed First and Final Account. Petitioner alleged that Lucille Amlie Kent was a first paternal cousin of decedent, and thereby entitled to a share of the Estate. Petitioner filed an amended petition on March 22, 2000. Respondents filed an answer denying the principal averments of the amended petition. At the request of the parties, an auditor was appointed to resolve the objections filed to the accounting. He issued his Auditor's Report and Recommendation (hereinafter "Report") on February 23, 2001, which stated the following: 1. Margaret Hulbert was the legally adopted daughter of Florence N. Hulbert, widow of Hervey Hulbert. 2. Hervey Hulbert never legally adopted Margaret Hulbert. 3. Hervey Hulbert was not the biological father of Margaret Hulbert. 4. Hervey Hulbert did not hold himself out as the biological father of Margaret Hulbert. 5. Hervey Hulbert was not the presumptive father of Margaret Hulbert. 6. Hervey Hulbert did not enter into any contract or agreement to adopt Margaret Hulbert. 7. Margaret Hulbert was not equitably adopted by Hervey Hulbert. 8. Even if Margaret Hulbert was equitably adopted by Hervey Hulbert, that would not give Lucile Amlie Kent, Hervey's niece, rights to share in the intestate estate of Margaret Hulbert. 9. Cynthia F. Plante and Cecilia J. Nicoullaud are the first cousins of Margaret Hulbert, her next-of-kin and the persons entitled to share in her intestate estate. 10. Lucile Amlie Kent was the daughter of Evelyn Hulbert Amlie, Hervey Hulbert's sister. 11. Lucile Amlie Kent was not related to Margaret Hulbert, was not her next-of-kin and is not entitled to share in her intestate estate.~ Subsequently, the Petitioner filed exceptions to the Report on March 5, 2001. Petitioner claims evidence exists that Hervey Hulbert equitably adopted Margaret Hulbert through an implied contract, that Hervey Hulbert was presumed to be Margaret Hulbert's biological father, and documentation and testimony state that Hervey Hulbert adopted Margaret Hulbert.2 Additionally, it is claimed that Lucille Amlie Kent was Margaret Hulbert's paternal first cousin and therefore entitled to a portion of the assets of Margaret Hulbert's Estate? Respondents filed objections to the Report on March 8, 2001. Respondents claim the costs of the audit proceeding should be imposed upon Petitioner because the claim was instituted without sufficient grounds, and the claim was based upon selected evidence.4 This opinion addresses these exceptions. Discussion When objections are filed to an accounting, the burden of proof is not on the accountant, but on those who question the accuracy of the account. In re Bailey's Estate, 208 Pa. 594, 597, 57 A. 1095, 1096 (1904). A claim of paternity made after the alleged father is deceased is subject to close scrutiny. Estate of Pew, 409 Pa. Super. 417, 427, 598 A.2d 65, 70 (1991), appeal denied, 530 Pa. ~ See Auditor's Report and Recommendation filed February 23, 2001, pages 16-17. 2 See Exceptions to Auditor's Report and Recommendation filed by Petitioner, filed March 5,2001. 3Id. 645, 607 A.2d 255 (Pa. May 5, 1992). Moreover, the claimant must establish her case by clear and convincing evidence. Id. Could Herve¥ Hulbert be regarded as Margaret Hulbert's bioloqical father? Under Minnesota law, "a man is presumed to be the biological father of a child if...while the child is under the age of majority, he receives the child into his home and openly holds out the child as his biological child..." Minn. Stat.§ 257.55 (1980). The evidence in the case subjudice clearly demonstrates Hervey Hulbert and Florence Hulbert took Margaret into their Minnesota home in 1909 when she was two (2) months old, that Margaret resided with both of them until Hervey died in 1921 when she was twelve (12) years old, and that Margaret continued to live with Florence thereafter. As a result, the requirements of the child being a minor and being received into the home are satisfied. The final condition, that the parent hold the child out as his biological child, needs to be addressed. According to the evidence in the present case, Hervey Hulbert was named "father" on Margaret Hulbert's adopted birth certificate and death certificate. This evidence is not conclusive, but only prima facie, and is open to explanation and contradiction by the opposing party. Bor.qon v. John Hancock M. Life Ins. Co., 99 Pa. Super. 377 (1930). The record shows that both Florence Hulbert and Margaret Hulbert swore under oath they did not know who Margaret's natural father was. Moreover, the 4 Se.__~e Objection to Auditor's Report and Recommendation, by Cynthia M. Plante and Cecelia J. Nicoullaud, Co- death certificate was prepared on the basis of information provided by Cynthia F. Plante, before she was appointed Co-Administrator of the Estate. In her testimony, Ms. Plante explained she knew Hervey Hulbert was not the biological father nor the adoptive father. However, she did not want the decedent to remain illegitimate, so she named the foster father as "father" on the death certificate. The Court believes this information does not constitute any admission nor representation by Hervey Hulbert. Because these documents were issued after his death, and there is no direct evidence that he legally adopted Margaret, the Court cannot say Hervey Hulbert was Margaret's biological father. Additionally, according to the evidence, Margaret used the Hulbert surname. The Auditor concluded, "the bottom line is that we can only speculate as to why Margaret used the Hulbert surname and the fact that we have to speculate means that the Petitioner has not proved by clear and convincing evidence that Hervey Hulbert held himself out as Margaret's biological father." The Court agrees. The facts of this case simply do not support an affirmative representation that Hervey Hulbert held Margaret out as his biological child. The facts before the Court fall short of the required proof by clear and convincing evidence. Moreover, the presumption of paternity depends upon facts arising from 1909 and 1921. However, the statute creating that presumption was not enacted by the Minnesota legislature until 1980. The Court has serious concerns about Administrators of the Estate of Margaret Hulbert, filed March 8, 2001. 5 retroactively applying this statute to the Estate that confers rights of inheritance. See In re Estate of Breole, 298 Minn. 116, 212 N.W.2d 894 (1973)(holding that despite its remedial nature, a statute enacted after the decedent's death which permitted an illegitimate child to inherit from a person who has been determined to be the father of the child in a paternity proceeding would not be given retroactive affect in absence of a clear and manifest intent that it be so construed). Was MarRaret Hulbert equitably adopted by Hervey Hulbert throu_clh an implied contract? A child who was not adopted pursuant to a legislative enactment may be considered adopted though the doctrine of equitable adoption. The contract to adopt may be express or implied. In re Estate of Row, 269 Minn. 557, 132 N.W. 2d 180 (1964). Minnesota recognizes the doctrine of equitable adoption. Fisk v. Lawton, 124 Minn. 85, 144 N.W. 455 (1913). It is well settled that where one seeks to establish a contract to adopt, the burden of proof rests upon him or her to do so by clear and convincing evidence. Fiske v. Lawton, 124 Minn. 85, 144 N.W. 455 (1913). The Minnesota Supreme Court states, "...whenever, in the absence of an adoption pursuant to some legislative enactment, a child, received from the natural parents into the home of foster parents and treated by the latter as a natural child, has been allowed to share in the estate left by the foster parents, it was only where a contract to legally adopt such child or to give it a share in such estate is clearly proven." In re Hack's Estate, 166 Minn. 35, 37,207 N.W. 17, 18 (1926). In the present case, no evidence is available to prove Hervey Hulbert expressly agreed to adopt Margaret Hulbert. Furthermore, the case at bar involves a claim by an alleged cousin of Margaret Hulbert to an intestate share of Margaret's estate. In order to establish intestate succession through Hervey Hulbert to support a claim against Margaret Hulbert's estate, this alleged cousin seeks to enforce whatever rights Margaret Hulbert may have had with respect to Hervey Hulbert. This is clearly beyond the relationship and interests protected by the doctrine of equitable adoption. See In re Estate of Olson, 244 Minn. 449, 70 N.W. 2d 107 (1955). Should the costs of the audit proceeding be imposed upon Petitioner? It is a well-settled rule of law in Pennsylvania that the costs of an audit are usually deducted from the funds for distribution. In re Istocin's Estate, 126 Pa. Super. 158, 190 A. 382 (1937). Because this is not an unyielding rule of law, the disposition of costs is a matter largely within the sound discretion of the Court. Id. In the case at bar, the Auditor was appointed to take testimony on this dispute, and report his findings thereon. The Auditor was in the best position to determine what proportion of the expenses incurred by the audit was chargeable to Respondents.