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HomeMy WebLinkAbout21-2004-301 and 21-2003-936 Orphans' IN RE: ELEANOR U. COOLIDGE : IN THE COURT OF COMMON PLEAS OF : CUMBERLANDCOUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-04-301 IN RE: ELEANOR U. COOLIDGE : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : ORPHANS' COURT DIVISION : NO. 21-03-936 IN RE: OPINION PURSUANT TO P A. R.A.P. 1925 OLER, 1., August 23,2005. In this Orphans' Court matter involving an appeal from probate, a will contestant has appealed to the Pennsylvania Superior Court from a decree nisi that dismissed her challenge to the will based upon undue influence. 1 The question of whether a decree nisi is an appealable order,2 and whether the issues raised on appeal have been waived due to the contestant's failure to file timely exceptions to the decree nisi,3 are beyond the scope of this opinion. The bases for the appeal have been expressed in a statement of matters complained of on appeal as follows: 1. It was an abuse of discretion for the trial court to deny Petitioner's request for a trial by jury under 20 Pa.C.S. S 777(c). 2. The court erred in finding that a confidential relationship did not exist between the decedent and her son, Respondent Thomas E. Coolidge. Such a finding is not supported by the evidence. 3. The court erred in finding that the respondents did not receive a substantial benefit under the Will dated December 8, 2003. Such a finding is not supported by the evidence. 4. The court erred in its finding that the decedent did not suffer from a weakened intellect for a significant period of time prior to and/or on the 1 Notice of Appeal, filed June 17,2005. 2 See Pa. O.C.R 7.1, Pa. RAP. 341, Pa. RC.P. 227.1, 1038; see also In re Contest of Election of November 4, 2003,858 A2d 143, 145 (Pa. Commw. 2004). 3 See Pa. O.C.R 7.1; see also Chalkey v. Roush, 569 Pa. 462, 805 A2d 491 (2002). date of execution of the Will dated December 8, 2003. Such a finding is not supported by the evidence. S. The court's characterization of Petitioner's "unmeritorious" attempt to have a guardian appointed for her mother reveals bias of judge against Petitioner in light of fact that only a few minutes of testimony were presented and Petitioner was not afforded opportunity to testify. 6. The court's finding that Petitioner's relationship with the decedent was less than harmonious is not supported by the evidence. 7. In light of all the testimony and documentary evidence submitted, it was an abuse of discretion for the court to find that Petitioner, Petitioner's witnesses and Petitioner's documentary evidence were not credible. Although the court makes no credibility holdings in its Adjudication and Decree, such a judgment of the lack of credibility of Petitioner's case must be inferred from the tenor of the Adjudication and Decree.4 The Decree Nisi from which the contestant has appealed to the Superior Court was accompanied by an Adjudication containing Findings of Fact, Discussion, and Conclusions of Law. 5 The present opinion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a) to supplement the Adjudication in several areas addressed by the statement of matters complained of on appeal. STATEMENT OF FACTS Three children were born of the marriage of Eleanor U. Coolidge and her husband, who predeceased her: Thomas Edward Coolidge, Philip Warren Coolidge, and Julia Elizabeth Coolidge-Stoltz.6 In November of 2003, when Eleanor U. Coolidge was 75,7 her daughter Julia Elizabeth Coolidge-Stoltz initiated an action at No. 21-03-936 Orphans' Court (Cumberland County) to have her declared incompetent on an emergency basis.8 4 Statement of Matters Complained of on Appeal, filed July 5,2005. 5 Adjudication and Decree Nisi, May 19,2005. 6 NT. 4, Hearing, November 17,2003; NT. 22, Hearing, March 24,2005. 7 NT. 129, Hearing, March 3, 2005; NT. 38, Hearing, February 28,2005. 8 Petition for Appointment of Emergency Guardian and Stay of Sch[e]duled Sale of Assets, filed November 12,2003. The petition did not specifically indicate whether a guardian of the person, guardian of the estate, or both was being requested. Id. 2 In response to the petition, the undersigned judge scheduled an emergency hearing during a trial term9 to receive evidence on the issue of whether Eleanor U. Coolidge should be adjudicated an incapacitated person on an emergency basis.10 At the hearing, the lucid and resolute testimony of Eleanor U. Coolidge was received and gave the court absolutely no reason to believe that an emergency adjudication of incompetency would be appropriate. 11 She testified, inter alia, that she and her daughter had been estranged "for a long time" 12 and that she did not want to be visited by her. 13 When the time initially allotted for the hearing expired, the court, pursuant to an agreement of counsel, issued an order directing that the record remain open and providing for further evidence in the matter to be received by deposition.14 The suggestion in the statement of matters complained of on appeal recited above that the court refused to permit Julia Elizabeth Coolidge-Stoltz to present her own testimony for consideration is not supported by the record and is not a fair characterization of the circumstances. 15 Notwithstanding the stipulated order leaving the record open, Petitioner Julia Elizabeth Coolidge-Stoltz filed no depositions to support the petition for an emergency guardianship, made no request that the record be declared closed or for any other action by the court, and filed no petition for adjudication of incapacity on a non-emergency basis. The petition being apparently no longer pursued, no order was entered adjudicating Eleanor U. Coolidge incapacitated on an emergency basis, or otherwise. Her daughter's attempt to have her declared incompetent infuriated Eleanor U. Coolidge, and she announced almost immediately after her testimony that she intended to 9 See NT. 13, November 17,2003. 10 Order of Court, November 12,2003. 11 See NT. 3-14, Hearing, November 17,2003. 12 NT. 7, Hearing, November 17, 2003. 13 NT. 6-7, November 17,2003; see also NT. 57-58, 77-80, Hearing, March 3, 2005. 14 Order of Court, November 17,2003. 15 The present counsel for Julia Elizabeth Coolidge-Stoltz was not representing her at the time of the hearing on the emergency guardianship petition. See Praecipe To With[d]raw Appearance, filed February 23,2004; Praecipe To Enter Appearance, filed February 23,2004; NT. 117, Hearing, March 3, 2005. 3 omit Julia Elizabeth Coolidge-Stoltz from her will. 16 Within three weeks she had carried out this decision.17 In so doing, she utilized the services of her long-time attorney, Robert M. Frey, Esq., former president of Dickinson Law School, who procured the attendance of Herbert E. Myers, M.D., a psychiatrist, at the signing. 18 Following the death of Eleanor U. Coolidge on March 24, 2004, the Cumberland County Register of Wills issued a decree admitting to probate the aforesaid will, at No. 21-04-301 Orphans' Court (Cumberland County). 19 An appeal from probate was filed by Julia Elizabeth Coolidge-Stoltz on July 2, 2004?0 For some reason, this appeal from probate was filed in the guardianship case at No. 21-03-936 Orphans' Court (Cumberland County) rather than in the estate case. The court subsequently issued an order consolidating the two dockets.21 The appeal from probate filed by Julia Elizabeth Coolidge-Stoltz sought a vacation of the decree admitting the will to probate, alleging (a) that the testatrix had lacked testamentary capacity at the time of the execution of the will and (b) that the will had been procured by undue influence.22 The court was further asked to "direct that the questions concerning the decedent's sound mind and the alleged undue influence be tried by a jury . . . . ,,23 The issue of lack of testamentary capacity was subsequently not pursued by the contestant. 24 16 NT. 117-118, Hearing, March 3, 2005; NT. 78-79, Hearing, March 24, 2005; NT. 94-95, Hearing, February 28,2005. 17 See Last Will and Testament of Eleanor U. Coolidge, dated December 8, 2003. 18 NT. 88-94, 134, 142, 145-148, Hearing, February 28,2005. 19 Decree of Probate and Grant of Letters Testamentary, issued March 29,2004. 20 Notice of Appeal, filed July 2, 2004. 21 Order of Court, November 12, 2004. 22 Petition for Citation, filed July 2, 2004. 23 Petition for Citation, filed July 2,2004, at 5. 24 See Petitioner's Post Trial Brief, April 28, 2005; see also Respondents' Supplemental Brief, May 9, 2005. 4 The contestant's request for a jury trial was denied?5 Also denied was a motion for summary judgment filed by proponents of the will.26 A hearing on the will contest was held on February 28, 2005, March 3, 2005, and March 24, 2005. The record of this hearing comprised 50 exhibits and 440 pages of transcript. Based upon the evidence presented at the hearing, the court, in its capacity as fact- finder, made the following findings of fact: 1. Petitioner/Appellant is Julia Elizabeth Coolidge-Stolz, M.D., an adult individual residing at 2 Gillis Drive, North Reading, Massachusetts. 2. Respondents are Thomas Edward Coolidge, an adult individual residing at 265 Mooreland Avenue, Carlisle, Cumberland County, Pennsylvania, and Philip Warren Coolidge, Esq., an adult individual having a mailing address of 950 Walnut Bottom Road, P.O. Box 15243, Carlisle, Cumberland County, Pennsylvania. 3. Petitioner and Respondents are the only children of Eleanor U. Coolidge, a resident of a facility known as Green Ridge Village, 210 Big Spring Road, Newville, Cumberland County, Pennsylvania. 4. By virtue of an instrument dated December 20, 2002, Respondent Thomas Edward Coolidge received a power of attorney from his mother, Eleanor U. Coolidge. 5. The exercise of this power by Respondent Thomas Edward Coolidge was consistent with the principal's best interests, and his general conduct toward his mother was consistently representative of that of a loving and devoted son. 6. Eleanor U. Coolidge died on March 24,2004, at the age of75. 7. The decedent died testate by virtue of a will executed on December 8, 2003, while she was a resident in the assisted living section of Green Ridge Village. 8. Under the will, the decedent devised and bequeathed her estate in a trust to be administered by her sons in two equal shares as follows: ... 9. The corpus of the trust will be about $1,240,000.00. 10. Under the will, the trustees were Respondents. 11. Under the will, the powers of the trustees were described as ... 12. Under the will, the executors were Respondents. 25 Order of Court, July 30,2004; Order of Court, September 30,2004; Order of Court, October 12,2004. 26 Order of Court, November 12, 2004. 5 13. The will differed from the decedent's immediately prior will, dated October 24, 2002, as modified by a codicil dated December 26, 2002, in that (a) it eliminated a bequest of two lamps to Petitioner, (b) it eliminated a gift to Petitioner and her child(ren) of an interest in the residuary trust equivalent to the interest of Respondents and their children, and (c) it eliminated a designation of Petitioner as co-trustee and co-executor. (footnotes omitted). 14. The omission of Petitioner as a beneficiary under the will was explicit: No provision has been made in this Will for my daughter Julia E. Stolz, not because of any absence of motherly love by me for her, but because I am satisfied that she has adequate resources to maintain a comfortable standard of living by virtue of being a beneficiary of a trust created by her father, and by the income earned by her husband and her. 15. Although the relationship between the decedent and Petitioner had been less than harmonious for years, the change in testamentary disposition evidenced in the will sub judice was immediately precipitated by the decedent's resentment at Petitioner's unmeritorious attempt to have her declare incompetent in November of2003.27 16. This decision of the decedent to change her will was the product of her independent will and was not directed, suggested, inspired or influenced in any way by Respondent Thomas Edward Coolidge. 17. At the time of the execution of the will sub judice the decedent, although not in ideal physical or mental health, did not suffer from a weakened intellect of the type that rendered her confused, forgetful, disoriented, or otherwise susceptible to pressure or influence from other persons, including her children, and she was lucid and competent. 18. At the time of the execution of the will a confidential relationship did not exist, nor had it existed, between the decedent and her son, Respondent Thomas Edward Coolidge. 19. As a practical matter, the benefit to Respondent Thomas Edward Coolidge from the revision of the will sub judice will be less than $6,000.00 28 per year. With respect to the contentions in the contestant's statement of matters complained of on appeal that ( a) the evidence did not support a finding that a confidential relationship did not exist between the decedent and her son, Thomas E. Coolidge, (b) the 27 The court refused to grant that petition, following a hearing at which the decedent, among others, testified. See Order of Court, November 20,2003. 28 Adjudication and Decree Nisi, May 19,2005. 6 evidence did not support a finding that respondents did not receive a substantial benefit under the will dated December 8, 2003, (c) the evidence did not support a finding that the decedent did not suffer from a weakened intellect, and (d) the evidence did not support a finding that the contestant's relationship with the testatrix was less than harmonious, the following may be noted. First, as to a confidential relationship, the credible evidence in the form of testimony of Eleanor U. Coolidge,29 Thomas E. Coolidge,30 Michael B. Devlin (certified public accountant), 3 1 Philip W. Coolidge,32 and Judith Foster Wali (niece of Eleanor U. Coolidge),33 revealed a relationship between Thomas E. Coolidge and his mother which was characterized by a solicitous execution of her wishes on his part and an absence of subservience on her part. It did not lead to a conclusion that the parties did not deal on equal terms or that the son exerted an over-mastering influence upon the mother. Second, as to the benefit received by respondents under the testatrix's new will, it was noted in the earlier Adjudication that an increase of only $5,810.00 annually in an estate of approximately $1,240,000.00 was involved.34 This conclusion was supported by evidence in the record in the form of testimony of Michael B. Devlin (certified public accountant). 35 Third, as to the testatrix's alleged weakened intellect, the mental acuity of Eleanor U. Coolidge was demonstrated by the clarity and cogency of her own testimony shortly before the execution of the challenged will,36 and by testimony of Renee Kreamer 29 NT. 9-10, Hearing, November 17,2003. 30 NT. 24-28, 62-63, Hearing, March 24, 2005; NT. 131-132, 135, Hearing, March 3, 2005. 31 NT. 32, 34-44, Hearing, March 24,2005; Respondents' Ex. 9. 32 NT. 113, Hearing, March 3,2005. 33 NT. 98-99, Hearing, March 3, 2005. 34 Adjudication and Decree Nisi, May 19,2005. 35 NT. 30, 34-38,40, Hearing, March 3,3005; Respondents' Ex. 10. 36 NT. 2-14, Hearing, November 17,2003. 7 (Assisted Living Administrator at Eleanor U. Coolidge's residential facility),37 Robert M. Frey, Esq.,38 and Herbert E. Myers, M.D. (psychiatrist).39 Finally, as to the disharmony between the testatrix and the contestant, the long- term estrangement between mother and daughter was quite evident from the testimony of the testatrix,40 Robert M. Frey, Esq.,41 Joseph F. Brazel, M.D. (Eleanor U. Coolidge's primary care physician),42 Renee Kreamer (Assisted Living Administrator at Eleanor U. Coolidge's residential facility),43 Judith Foster Wali (niece of Eleanor U. Coolidge),44 Thomas E. Coolidge,45 and Philip W. Coolidge.46 In accordance with the court's findings, and in conjunction with a reVIew of applicable legal principles and a set of conclusions of law, the following Decree Nisi was issued: AND NOW, this 19th day of May, 2005, upon consideration of the Appeal from Probate filed on behalf of Julia Elizabeth Coolidge- Stoltz, following a hearing held on February 28, 2005, March 3, 2005, and March [2]4, 2005, and for the reasons stated in the accompanying Adjudication, it is ordered, adjudged, and decreed that the appeal is d. . d 47 IsmIsse . No exceptions were filed to the Decree Nisi. The contestant filed an appeal from the Decree Nisi to the Pennsylvania Superior Court on June 17, 2005. 37 NT. 45-49, 51-52, 54, 59, 87, Hearing, March 3, 2005. 38 NT. 92-95, 97, Hearing, February 28,2005. 39 NT. 142-148, Hearing, February 28,2005. 40 NT. 6-7, Hearing, November 17,2003. 41 NT. 88,94-98,109-111, Hearing, February 28,2005. 42 NT. 165-166, Hearing, February 28,2005. 43 NT. 57-58, 63-64, 77-80, Hearing, March 3,2005. 44 NT. 96-97, 102-103, Hearing, March 3,2005. 45 NT. 55, 58-59, 65-71, 78, Hearing, March 24,2005. 46 NT. 105-107, Hearing, March 3,2005. 47 Decree Nisi, May 19,2005. 8 DISCUSSION Although the original Adjudication for the most part addressed the issues pressed by the contestant on appeal, it may be amplified in the following particulars. First, with respect to the refusal of the court to accede to the contestant's request for a jury trial, it should be noted that it is within the court's discretion to empanel a jury in a case of the present type. See Act of April 16, 1992, P.L. 108,91, as amended, 20 Pa. c.s. 9777(c); In re Fickert's Estate, 461 Pa. 653, 337 A.2d 592 (1975). When a contest shall arise concerning the validity of a writing alleged to be testamentary, or concerning any matter other than as provided in subsections ( a) and (b) of this section, the orphans' court division, in its discretion at any stage of the proceedings, may impanel a jury to decide any question of -c 48 ~act. . . . Second, in such a case the findings of a jury are merely advisory. In re Hunter's Estate, 416 Pa. 127, 205 A.2d 97 (1964); Act of April 16, 1992, P.L. 108, 91, as amended, 20 Pa. c.s. 9777(c). In the present case, the court had had the benefit of personally observing, and reCeIVIng testimony from, the testatrix shortly before the execution of the will in question. In addition, the issue of undue influence was not factually complicated, and primarily involved an application of legal principles to those facts. Under these circumstances, the court did not believe that the advice of a jury would be of substantial benefit. Second, with respect to the purported absence of evidence in the record to support the propositions that ( a) a confidential relationship did not exist between the decedent and her son, Thomas E. Coolidge, (b) respondents did not receive a substantial benefit under the will dated December 8, 2003, (c) decedent did not suffer from a weakened intellect, and (d) contestant's relationship with the testatrix was less than harmonious, the support in the record for the court's findings has been cited in the preceding section of this 48 Act of April 16, 1992, P.L. 108, ~l, as amended, 20 Pa. C.S. ~ 777(c) (emphasis added). 9 OpInIOn. When the trial court sits as fact-finder, the court is "free to believe all, part, or none of the evidence presented." Makozy v. Makozy, 2005 PA Super. 110, ,-r14, 874 A.2d 1160, 1167 (2005) (citing Stokes v. Gary Barbera Enterprises, Inc., 2001 PA Super. 239, ,-r3, 783 A.2d 296, 297 (2001)). The Superior Court in Makozy also noted that when the trial court is sitting as the fact-finder it is "in the best position to weigh the evidence based upon its assessment of the witnesses' credibility." Makozy, 2005 P A Super. 11 0, ,-r15, 874 A.2d 1160, 1167 (2005). Third, with respect to the contention that the court's characterization of the emergency incompetency petition as "unmeritorious" indicated a lack of impartiality, it may be pointed out that contestant herself did not have sufficient confidence in the petition to pursue it following the testimony of her mother, that the record made on the petition lacked any basis for the court to deem an emergency appointment of a guardian necessary, and that the characterization was made in the context of reviewing the rationality of the testatrix's decision to omit her daughter from her will. For the reasons expressed in the court's initial Adjudication, as amplified herein, it is believed that the Decree Nisi declining to accede to the contestant's position in this matter was properly entered. R. Mark Thomas, Esq. 101 S. Market Street Mechanicsburg, P A 17055 Attorney for Petitioner Julia Elizabeth Coolidge-Stolz James D. Flower, Jr., Esq. 26 West High Street Carlisle, P A 17013 Attorney for Respondents Thomas Edward Coolidge and Philip Warren Coolidge 10 Robert M. Frey, Esq. 5 South Hanover Street Carlisle, P A 17013 Attorney for Estate of Eleanor U. Coolidge 11