HomeMy WebLinkAbout21-2005-877 Orphans
IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF
RICHARD L. : CUMBERLAND COUNTY, PENNSYLVANIA
HECKENDORN : ORPHANS’ COURT DIVISION
: No. 21-2005-877
IN RE: PETITION FOR DECLARATORY JUDGMENT PURSUANT
TO 42 Pa. C.S. §7535 (2) and (3)
BEFORE OLER, J.
OPINION and ORDER OF COURT
OLER, J., August 21, 2009.
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In this Orphans’ Court case, Petitioner, Yvonne K. Wheeler, and Respondents,
Kimberly Hensel and Brett Heckendorn, are co-administrators c.t.a of the estate of
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Richard L. Heckendorn. Decedent Richard L. Heckendorn died on September 23, 2005,
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leaving an unwitnessed will executed on May 29, 2004. Decedent’s will read as
follows:
If you are reading this letter I have passed on. I love you all and will miss
my family and friends. This letter is to inform everyone of my last wishes
and want everyone to respect my last will and testament. My love of my
life Yvonne I want to get the house and it’s contents. In the event Yvonne
passes away also then the house is to be sold and divided between Brett,
Kim, Norman and Jenny. As long as Yvonne is living she keeps the
house. If she decides to sell the house then she should give Brett & Kim
each $25,000 after the sale and Yvonne keeps the rest and then she can
will Norman & Jenny her belongings of what she received from me when
she passes away. The land beside the house can be sold and the proceeds I
want to go to all the grand children. I want Brett, Kim, Norman & Jenny
to help Yvonne in any way to take care of all my arrangements. I want
Yvonne in full control of my checking account to pay the car off and to
pay the mower off at Nolt’s Engine Repair. There is enough money in the
checking to pay for both those items plus pay for my funeral expenses.
All my stocks and accounts at The Mony Group in Chambersburg (Betty
Lou Hawbaker) has Yvonne, Brett & Kim as Beneficiary’s, so you will
have to call her for that money. I would like to give my Mother (Dorothy)
1
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009. Yvonne
K. Wheeler was formally known as Yvonne K. Malloy. Id.
2
Petition for Grant of Letters of Administration, filed September 30, 2005.
3
Oath of Non-Subscribing Witness, filed September 30, 2005.
4
Will of Richard L. Heckendorn, filed September 30, 2005.
my Money Market Account for her to pay for wash & sets plus her perms
at Helen Wagner’s or wherever she wants to go. My Mother (Dorothy)
put me & my brother Michael’s name as owner’s of her home and it is
stated that in the event of my death my share of the house shall go to my
children Brett & Kim. Any other money that I should receive from my
Mother’s Estate I would like to go to Yvonne. My brother (Michael) can
have all my Shotguns and Pistols. I hope this sounds fair to everyone. I
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Love You All!!!
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Petitioner filed a petition for declaratory judgment on June 5, 2009, asking this
court for a determination of rights with respect to the will pursuant to Section 7535 (2)
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and (3) of the Pennsylvania Judicial Code. The petition for declaratory judgment read as
follows:
1.Richard L. Heckendorn (“The decedent”) died September 23, 2005 a
resident of Upper Mifflin Township, Cumberland County,
Pennsylvania.
2.The petitioner is Yvonne K. Wheeler, formerly Yvonne K. Malloy.
3.The respondents are Kimberly Hensel and Brett Heckendorn, the
decedent’s only children, both adults.
4.The decedent left a Last Will and Testament, executed May 29, 2004
and formally acknowledged May 13, 2005, which was accepted into
probate by the Register of Wills for Cumberland County on October 3,
2005. (A copy of the Will is attached as Exhibit “A.”)
5.The decedent’s Will, composed in informal and idiomatic language,
was evidently a homemade document, and no personal representative
was explicitly appointed.
6.The Register of Wills issued Letters of Administration, C.T.A., to the
petitioner and both respondents.
7.The petitioner and the respondents have been unable to resolve their
disagreements as to questions of interpretation and as to the
apportionment of inheritance taxes.
8.The decedent owned at the time of his death, inter alia, his residence
and an adjacent lot.
9.The residence was specifically devised to the petitioner by the
following language: “The love of my life Yvonne I want to get the
house and its contents.”
5
Will of Richard L. Heckendorn, filed September 30, 2005.
6
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009.
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Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §7535 (2) and (3).
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10.The said devise was conditioned on the petitioner surviving the
decedent by the following language: “As long as Yvonne is living she
keeps the house.”
11.In the foregoing provision the decedent used the common vernacular
expression “as long as” not to denote a period of time, but in the sense
of “if” or “provided that-,” to express the conditional.
12.The will provided for the possibility that the petitioner and the
decedent would be killed in a common disaster: “In the event Yvonne
passes away also then the house is to be sold and divided between
Brett, Kim, Norman and Jenny.” Norman and Jenny are the
petitioner’s children.
13.The will also contains the following precatory language: “If [Yvonne]
decides to sell the house then she should give Brett & Kim each
$25,000 after the sale ….”
14.The respondents have variously argued that (a) the foregoing language
is mandatory, not precatory, and (b) that they each must be paid
$25,000 before they would execute a fiduciary deed conveying the
devised residence to the petitioner.
15.After an absolute devise has been made, no precatory words of the
testator to his devisee can defeat the estate previously granted.
16.With respect to the lot adjacent to the decedent’s residence, the will
provides: “The land beside the house can be sold and the proceeds I
want to go to all the grand children.”
17.The decedent and the petitioner were domestic companions for thirty
(30) years and participated in raising one another’s children, who are
twice addressed as a group in the will, for example: “I want Brett,
Kim, Norman & Jenny to help Yvonne in any way to take care of all
my arrangements.”
18.The respondents have unreasonably maintained that “all the
grandchildren” should be read not as “all of the grandchildren,” but as
“both of my grandchildren,” including only Kim’s two children to the
exclusion of Jenny’s children.
19.The decedent’s residence comprises an attached garage, but the
respondents have unreasonably maintained that “the house and its
contents” excludes the contents of the attached garage.
20.The will contains no directions as to the source of payment of
inheritance taxes.
21.72 PA. C.S. Section 9144 dictates that the tax should be paid from the
residue, but the respondents unreasonably deny that the petitioner is
entitled to any credit or reimbursement of the $19,500.00 she advanced
to the estate to pay inheritance taxes.
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22.Respondents have unreasonably refused to execute in their fiduciary
capacity title to transfer ownership of decedent’s motorcycle to the
petitioner, despite the fact that the motorcycle was among the contents
of the house bequeathed to the petitioner, and despite the fact that
petitioner paid $6,850 to the estate pursuant to the parties’ agreement,
in consideration for the transfer of title.
23.Petitioner should also be credited $2,406.25 for cash paid by her to the
estate to purchase decedent’s half interest in a Buick owned in
common by the petitioner and the decedent.
24.The Respondent, Brett Heckendorn, should be directed to pay the full
value for one of decedent’s motorcycles, which was bequeathed to the
petitioner as part of the contents of the house, and for which the
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respondent, Brett Heckendorn, paid only one-half value.
A hearing was held on this petition on July 16, 2009, at the conclusion of which
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the matter was taken under advisement.
STATEMENT OF FACTS
Based upon a review of the record, the pertinent facts may be summarized as
follows:
Petitioner is Yvonne K. Wheeler, an adult individual residing on Mountain Road
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in Newburg, Cumberland County, Pennsylvania. Respondents are Brett Heckendorn,
an adult individual residing on Wren Street North in Martinsburg, Berkeley County, West
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Virginia, and Kimberly J. Hensell, an adult individual residing on Cobblestone Court in
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Martinsburg, Berkeley County, West Virginia.
The Decedent, Richard L. Heckendorn, was the father of Respondents and had a
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long-time personal relationship with Petitioner. Decedent died testate, as a resident of
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Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009.
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Notes of Testimony 1, Hearing, July 16, 2009 (hereinafter N.T. __); Order of Court, July 16, 2009.
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N.T. 6.
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N.T. 26.
12
Petition for Grant of Letters of Administration, filed September 30, 2005.
13
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009; N.T. 6.
Petitioner was disallowed her claim of common law marriage, with the decedent, by the Pennsylvania
Department of Revenue. Commonwealth of Pennsylvania Department of Revenue - Decision and Order,
Board of Appeals Docket No. 0614507, January 26, 2007.
4
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Upper Mifflin Township, Cumberland County, Pennsylvania on September 23, 2005,
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leaving an unwitnessed will executed on May 29, 2004. Decedent’s will was admitted
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to probate by the Register of Wills for Cumberland County on October 3, 2005.
At the time of his death, Decedent was the father of two biological children,
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Respondents Kimberly Hensel and Brett Heckendorn. Decedent also had two biological
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grandchildren, Lauren T. Hensell and Brian L. Hensell, the issue of his daughter.
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Petitioner had two children, Norman and Jennifer. Petitioner also had two
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grandchildren, Taylor and Elisia, the issue of her daughter.
2122
An inventory and a statement of funds received and expended by the estate
indicate that Decedent was the owner of: (a) several bank, investment and retirement
accounts, (b) a 1992 Buick Regal, (c) two Harley-Davidson motorcycles, (d) a Honda
lawnmower, (e) various guns, (f) an interest of some sort in property located at 123
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Steelstown Road, Newville, Cumberland County, Pennsylvania, (g) a residence located
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Certificate of Death, filed September 30, 2005.
15
Will of Richard L. Heckendorn, filed September 30, 2005.
16
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009; Will of
Richard L. Heckendorn, filed September 30, 2005. Decedent’s will was signed by decedent outside the
presence of any witnesses. Norman Malloy and Beverly Heckendorn affirmed that the signature of
decedent, appearing on his will, was authentic. Oath of Non-Subscribing Witness, filed September 30,
2005.
17
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009.
18
Inheritance Tax Return Resident Decedent, Schedule J – Beneficiaries, filed December 22, 2005.
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N.T. 6-7. Petitioner’s children are not biologically related to Decedent, nor were they adopted by him.
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009.
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N.T. 7. Petitioner’s grandchildren are not the issue of Decedent. Petition for Declaratory Judgment
Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009.
21
Inventory, filed January 23, 2006.
22
Petitioner’s Exhibit 1, Hearing, July 16, 2009.
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Will of Richard L. Heckendorn, filed September 30, 2005; Inventory, filed January 23, 2006.
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at 1369 Mountain Road, Newburg, Cumberland County, Pennsylvania, and (h) a lot
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adjacent to the residence.
Decedent’s will contained several specific bequests which are not at issue in the
2627
instant petition. Decedent died while riding one of his Harley-Davidson motorcycles.
Following his death, this motorcycle was repaired at M&S Harley-Davidson in
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Chambersburg, Pennsylvania. Respondent, Brett Heckendorn, subsequently retrieved
the motorcycle from this location and transported it to his home in West Virginia, where
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it has since remained.
On June 5, 2009, Petitioner filed her Petition for Declaratory Judgment Pursuant to
42 Pa. C.S. §7535 (2) and (3), the issues raised in which may be summarized as follows:
(a) whether Decedent gave a fee simple estate or a life estate in his residence to
Petitioner, (b) whether language directing Petitioner to pay Respondents $25,000 each, in
the event of a sale of the residence, is precatory, (c) whether the contents of both an
attached and detached garage were bequeathed to Petitioner, (d) whether a motorcycle in
the possession of Decedent’s son was bequeathed to Petitioner, (e) whether Decedent
intended the proceeds of the sale of the property adjacent to the residence to go to his
biological grandchildren only, or to Petitioner’s grandchildren as well, and (f) how the
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taxes attributable to the testamentary gifts should be paid. On June 18, 2009, this court
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scheduled a hearing for July 16, 2009. Respondents filed an answer to the petition on
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Inventory, filed January 23, 2006. Decedent’s residence included a house with an attached garage as
well as a separate detached garage. N.T. 18.
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Inventory, filed January 23, 2006.
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See Will of Richard L. Heckendorn, filed September 30, 2005.
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N.T. 26-27.
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N.T. 26.
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N.T. 26-27.
30
Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed June 5, 2009.
31
Order of Court, June 18, 2009.
6
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July 13, 2009. Following the July 16, 2009 hearing, the matter was taken under
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advisement.
DISCUSSION
In the interpretation of a will, effect must be given to each word or clause so as
not to render any provision “nugatory or mere surplusage.” In Re Estate of Elkins, 2005
PA Super 375, ¶10, 888 A.2d 815, 823. The polestar in the construction of any will is the
testator's intent. In Re Britt’s Estate, 369 Pa. 450, 454, 87 A.2d 243, 244 (1952). “The
testator's intent must be ascertained by a consideration of the entire will which of course
must be read in the light of the circumstances surrounding him when he made it.” Id. at
454, 87 A.2d at 244-45.
In determining the testator's intention - if no uncertainty or
ambiguity exists - his meaning must be ascertained from the language of
his will; it is not what the court thinks he might or would have said in the
existing circumstances, or even what the court thinks he meant to say, but
what is the meaning of his words. Where a testator's intent is clear from
the language of his entire will, technical rules or canons of construction
are unnecessary; it is only where the intent is uncertain or the language
ambiguous that such canons should be resorted to.
Id. (citations omitted).
Petitioner and Respondents are of the view that the will is unclear as it relates to
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the gift to Petitioner of the house and its contents. Petitioner asserts that she was
devised a fee simple interest in Decedent’s house and its contents. Where a will provides
an absolute gift, subsequent words in the same instrument may not be used to reduce the
estate thus given, “unless it is reasonably certain that such was the intention of the
donor.” In Re Calder’s Estate, 343 Pa. 30, 38, 21 A.2d 907, 911 (1941). The instant
will stated “[m]y love of my life Yvonne I want to get the house and [its] contents.” The
import of this language is that Decedent intended for Petitioner to receive the house and
its contents in fee simple absolute. Based on the foregoing principle, this interest may
32
Response to Petition for Declaratory Judgment Pursuant to 42 Pa. C.S. §7535 (2) and (3), filed July 13,
2009.
33
Order of Court, July 16, 2009.
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N.T. 16-17.
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be reduced only if the subsequent language in the will indicates, to a reasonable
certainty, that Decedent intended to reduce the estate. The next line in the will states “in
the event Yvonne passes away also then the house is to be sold and divided between
Brett, Kim, Norman and Jenny.” This language does not demonstrate an intention to
reduce the estate from fee simple to a life estate. The next lines state “[a]s long as
Yvonne is living she keeps the house. If she decides to sell the house then she should
give Brett & Kim each $25,000 after the sale and Yvonne keeps the rest and then she can
will Norman & Jenny her belongings of what she received from me when she passes
away.” Respondent maintains that the phrase “as long as Yvonne is living”
demonstrates an intention by Decedent to reduce the gift to a life estate. However, (a)
the Decedent’s own words in his will and (b) the lack of a provision in the will
specifying a remainderman, and (c) the absence of a residuary clause support a
conclusion that Decedent intended to dispose of the house and its contents in a single fee
simple transfer to Petitioner.
The language that Petitioner should give $25,000 to each of the Respondents
following a sale of the property is precatory and not binding upon Petitioner. See In Re
Estate of Warner, 391 Pa. Super. 124, 129-30, 570 A.2d 544, 547 (1990) (stating that
precatory language in a will is not binding.) “The test is, whether the precatory
expression was used in a mandatory sense, though couched in a mild, polite, courteous
command, or only as suggestion or wish, falling short of binding and compulsory
direction. . . .” In Re Pearson’s Estate, 442 Pa. 172, 179-80, 275 A.2d 336, 339 (1971).
In the instant will the language falls short of a binding direction, and therefore Petitioner
cannot be mandated to follow Decedent’s wish.
Now that it has been determined that Decedent intended to give the contents of his
house to Petitioner, it must be determined what those contents are. Decedent’s residence
included a house with an attached garage, as well as a separate detached garage. Other
than the previously cited language, “house and [its] contents,” the will is silent as to the
contents of these garages. “The presumption is that a testator intends to dispose of his
entire estate and not die intestate as to any part of it. The duty of the court is to so
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construe a will that no intestacy, partial or entire, will occur.” In Re Estate of Harper,
2009 PA Super 104, ¶12, ___ A.2d ____ (citations omitted).
In Graham v. Heidrick, 204 Pa. 238, the ‘present home and
residence’ was held to include not merely the dwelling-house, but the
whole tract of land and buildings embraced in a small farm where the
testator lived with his wife and daughter, the court referring to the natural
use of such words in colloquial speech to include both land and buildings.
In Re Ritchie’s Estate, 4 Pa. D. & C. 455, 457, 1924 WL 4791 (Pa.Orph.,
.
Philadelphia County, 1924)
Based on the foregoing it is clear that Decedent intended to give the contents of
the attached and detached garages to Petitioner, including the vehicles found inside.
However, at the time of his death, one of Petitioner’s motorcycles was outside of
Decedent’s residence. This motorcycle has since been in the possession of Respondent,
Brett Heckendorn. Inasmuch as (a) the will failed to provide a specific bequest for this
motorcycle and (b) it was not part of the contents of Decedent’s home at the time of his
death, the share of the motorcycle owned by Decedent is unbequeathed. As Respondent,
Brett Heckendorn, previously paid for one half of the motorcycle, the remaining half
owned by Decedent falls into intestacy. See Act of June 30, 1972, P.L. 508, §2, as
amended, 20 Pa. C.S.A. §2103.
Decedent, in his will, states that the property adjacent to his residence should be
sold with the proceeds going to “all the grand children.” Petitioner’s grandchildren are
not biologically related to Decedent. Decedent had only two grandchildren, the children
of his daughter. When Decedent wished that the issue of Petitioner take under the will,
he mentioned them by name. Had Decedent intended that Petitioner’s grandchildren be
included in this gift, he would have named them specifically. As only “the grand
children” are named, it must be presumed that Decedent wished that his biological
grandchildren only benefit from this bequest.
Section 9144 of the Pennsylvania Tax Code states:
(a) In the absence of a contrary intent appearing in the will, the
inheritance tax, including interest, on the transfer of property which passes
by will absolutely and in fee, and which is not part of the residuary estate,
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shall be paid out of the residuary estate and charged in the same manner as
a general administration expense of the estate. The payments shall be
made by the personal representative and, if not so paid, shall be made by
the transferee of the residuary estate.
* * * *
(f) In the absence of a contrary intent appearing in the will or other
instrument of transfer and except as otherwise provided in this section, the
ultimate liability for the inheritance tax, including interest, shall be upon
each transferee.
Decedent’s will is silent as to the issue of inheritance taxes. Likewise, the will
lacks a residuary clause. Therefore, pursuant to Section 9144(f) of the Pennsylvania Tax
Code, the inheritance taxes are to be allocated between the transferees, in accordance
with the tax attributable to the transferees’ receipts.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
st
AND NOW, this 21 day of August, 2009, upon consideration of the Petition for
Declaratory Judgment Pursuant to 42 PA. C.S. §7535 (2) and (3), following a hearing
held on July 16, 2009, and for the reasons stated in the accompanying opinion, it is
hereby found and declared that:
1.Language in Decedent’s will conveys Decedent’s house and its contents,
including the contents of any garage or outbuilding on the property, in
fee simple to Petitioner.
2.Language in Decedent’s will respecting the proceeds of a sale of the
house is precatory and not binding upon Petitioner.
3.Decedent’s one-half interest in a certain motorcycle, not found within the
contents of the house, is not disposed of by the will and passes by
intestacy.
4.Language in Decedent’s will bequeaths proceeds from the sale of the lot
next to Decedent’s residence to his own biological grandchildren only.
5.Any and all inheritance taxes resulting from this estate are payable out of
the interest of the recipient of the item generating the tax.
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BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Thomas E. Flower, Esq.
2109 Market Street
Camp Hill, PA 17011
For the Petitioner
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
For the Respondents
Harold S. Irwin, III, Esq.
64 S. Pitt Street
Carlisle, PA 17013
For all co-administrators c.t.a
in their fiduciary capacities
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IN RE: ESTATE OF : IN THE COURT OF COMMON PLEAS OF
RICHARD L. : CUMBERLAND COUNTY, PENNSYLVANIA
HECKENDORN : ORPHANS’ COURT DIVISION
: No. 21-2005-877
IN RE: PETITION FOR DECLARATORY JUDGMENT PURSUANT
TO 42 Pa. C.S. §7535 (2) and (3)
BEFORE OLER, J.
ORDER OF COURT
st
AND NOW, this 21 day of August, 2009, upon consideration of the Petition for
Declaratory Judgment Pursuant to 42 PA. C.S. §7535 (2) and (3), following a hearing
held on July 16, 2009, and for the reasons stated in the accompanying opinion, it is
hereby found and declared that:
1.Language in Decedent’s will conveys Decedent’s house and its contents,
including the contents of any garage or outbuilding on the property, in
fee simple to Petitioner.
2.Language in Decedent’s will respecting the proceeds of a sale of the
house is precatory and not binding upon Petitioner.
3.Decedent’s one-half interest in a certain motorcycle, not found within the
contents of the house, is not disposed of by the will and passes by
intestacy.
4.Language in Decedent’s will bequeaths proceeds from the sale of the lot
next to Decedent’s residence to his own biological grandchildren only.
5.Any and all inheritance taxes resulting from this estate are payable out of
the interest of the recipient of the item generating the tax.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Thomas E. Flower, Esq.
2109 Market Street
Camp Hill, PA 17011
For the Petitioner
Karl E. Rominger, Esq.
155 South Hanover Street
Carlisle, PA 17013
For the Respondents
Harold S. Irwin, III, Esq.
64 S. Pitt Street
Carlisle, PA 17013
For all co-administrators c.t.a
in their fiduciary capacities