Opinion
J-A15033-12 No. 3353 EDA 2011
07-10-2012
In re: ESTATE OF WILLIAM O. SMALING A/K/A WILLIAM SMALING, DECEASED, APPEAL OF: NORINE C. SMALING
Appeal from the Decree of November 18, 2011,
in the Court of Common Pleas of Monroe County,
Orphans' Court at No.: 63 OC 2010
BEFORE: STEVENS, P.J., LAZARUS and COLVILLE, JJ. OPINION BY COLVILLE, J.
Retired Senior Judge assigned to the Superior Court.
Norine Smaling ("Appellant") appeals the decree of the Orphans' Court denying the appeal she filed in that court after the Register of Wills declined to probate a will executed by her husband, William Smaling, Sr. ("the Decedent"), in 2008. The decree in question was based on the court's determination that the will was invalid due to the Decedent's lack of testamentary capacity and the undue influence to which he was subject by Appellant. Finding Appellant's issues waived, we affirm the decree.
The decree in question is appealable as a final order because it determined the validity of a will. Pa.R.A.P. 342(a)(2).
In short form, what transpired in this case is as follows. The Decedent executed a will in 2005 naming William Smaling, Jr., one of the Decedent's sons, as executor, leaving $35,000.00 to Appellant, and dividing the residue of the Decedent's estate equally between his two sons. The two men were the Decedent's sons by a prior marriage; they were not Appellant's sons. The Decedent died in 2009 at age 73. His 2005 will was probated in January 2010.
Thereafter, apparently in March 2010, Appellant petitioned to probate the will executed by the Decedent in 2008. The will named Appellant as executrix, disinherited the Decedent's sons, left his entire estate to Appellant, and named her son, who was not the Decedent's son, as alternate executor and alternate beneficiary. The Register of Wills did not probate the 2008 will.
Appellant appealed to the Orphans' Court. As executor of the Decedent's estate, William Smaling, Jr. stipulated that the 2008 will was, on its face, properly executed. However, he otherwise contested its validity, contending that the Decedent lacked testamentary capacity in 2008 and/or that the 2008 will was the product of undue influence. The court conducted a hearing but did not announce a decision at the conclusion thereof. Instead, the court later issued an opinion setting forth the court's factual and legal analysis of the evidence. Therein, the court reasoned that, due to dementia and/or other mental deficiencies, the Decedent did not have testamentary capacity at the time he executed the 2008 will. Also, given the evidence of the Decedent's weakened intellect, the confidential relationship between him and Appellant, and the substantial benefit Appellant was to receive under the 2008 will, the court determined that the circumstances under which the will was executed showed the Decedent had been subject to undue influence by Appellant. The court then declared the 2008 will invalid and denied Appellant's request to probate it. Appellant filed no exceptions. She appealed directly to this Court.
For the legal principles relating to testamentary capacity, see In re Kuzma's Estate, 408 A.2d 1369, 1371 (Pa. 1979).
For the legal principles relating to undue influence, see In re Bosley, 26 A.3d 1104, 1107-08 (Pa. Super. 2011).
Appellant offers several variations on the theme that the court wrongly weighed the evidence: she contends that the court did not properly consider and credit all the evidence of record, that the court failed to account for the alleged interests or biases of the witnesses when assessing their credibility, and that the court's findings regarding testamentary capacity and undue influence were otherwise against the weight of the evidence.
Appellant did not raise weight-of-the-evidence claims in the Orphans' Court. Accordingly, she may not raise issues relating thereto on appeal. Pa.R.A.P. 302(a).
Appellant also argues that, in its post-hearing opinion explaining and supporting its decree, the Orphans' Court stated the proper law regarding testamentary capacity and undue influence but, despite articulating the law correctly, went on to apply it incorrectly. More specifically, Appellant asserts that, in its analysis, the court employed improper legal presumptions, held her to a burden of proof that she did not have and, to the extent the court did place a burden of proof on William Smaling, Jr. as the contestant of the 2008 will, failed to hold him to the appropriately high standard of proof of clear and convincing evidence.
The shifting burdens and presumptions regarding testamentary capacity and undue influence are discussed in In re Kuzma's Estate, 408 A.2d at 1371 and In re Bosley, 26 A.3d at 1107-08.
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It is important to recognize that, at least as to questions about what law governs testamentary capacity and undue influence, the court did not enter any pretrial or midtrial legal rulings to which Appellant preserved objections. Rather, she is contending the court's alleged misapplication of the law did not arise until after the hearing concluded, when the court issued its analysis and decree. Thus, if she wanted to contend, as she now does, that the court stated the proper law but misapplied the law in its post-hearing opinion, she needed to raise her claim by filing exceptions under Pa.O.C.R. 7.1 after the court issued the opinion and ruling in question. Having not done so, she waived her argument.
Before leaving this case, however, there are additional points we wish to make. The parties filed prehearing memoranda briefly setting forth what they believed to be some of the applicable law and/or legal issues in the case. Also, after the hearing concluded, but before the court issued its analysis and decree, the parties filed proposed findings of fact and conclusions of law with expanded factual and legal analyses relating to testamentary capacity and undue influence. In short, the parties' pre- and post-hearing filings set forth the positions the parties advocated. To some extent, therefore, one might wonder if, through her aforesaid filings, Appellant preserved any of the claims raised herein.
It is plain that, because of the inherently post-decision (e.g., post-verdict) character of weight claims, Appellant's pre- and post-hearing filings could not have preserved her issues concerning the weight of the evidence. Weight claims ask the court to look back, after the factfinder reached a decision, and determine if that decision was so contrary to the evidence as to shock the court's sense of justice. Criswell v. King, 834 A.2d 505, 512-13 (Pa. 2003). Thus, by their very nature, weight claims cannot even exist until after the factfinder announces a result. Id. They can only be presented after the factfinder completes its function. Id. Any document Appellant filed before the factfinder's ruling could not have preserved a weight claim.
On this matter of weight, it is worth keeping in mind a distinction. Arguing to the factfinder that the evidence—or the weight of the evidence— should lead to a particular outcome is not the same as asking the court to reverse the factfinder's decision because that decision shock's the judicial conscience. Id. Surely, factfinders do weigh the evidence, but they do not resolve post-decision, weight-of-the-evidence motions (i.e., exceptions). Id. Only the court, in its capacity as the court, does so. Id. Having filed no exceptions after the court, as factfinder, rendered its decision herein, Appellant waived her issues relating to the weight of the evidence.
We recognize, of course, that the Orphans' Court served as factfinder in this matter and, as such, it would seem unlikely the court, upon receiving exceptions raising weight claims, would disturb the decision the court reached as trier of fact. However, the unlikely success of weight exceptions does not change their nature: they ask the court, in its judicial capacity, to reevaluate the adjudication after the trier of fact has pronounced it. Accordingly, Appellant needed to make such a request through exceptions under Pa.O.C.R. 7.1. Neither her prehearing memorandum nor her proposed findings of fact and conclusions of law preserved the weight arguments she now presents to us.
Additionally, the pre- and post-hearing filings in question did not preserve the challenge Appellant now raises regarding the court's application of the law. Parties always argue their version of the facts and, to a lesser extent the law, to the factfinder before the factfinder makes a decision. This does not mean the parties have thereby preserved objections to what they later perceive to be a misapplication of the law during the factfinder's deliberation. In this regard, we note that proposed findings of fact and conclusions of law are simply the pen-and-paper version of a closing argument. Similarly, pretrial memoranda such as the ones filed in this case simply sketch out the parties' intended positions. Herein, the pre- and post- hearing filings certainly did not raise any sort of objections and did not result in any rulings to which Appellant preserved challenges. If Appellant wished to contest the manner in which the court used the law during its analysis after the hearing, she needed to file exceptions after that analysis issued. She failed to do so.
The rules of court make plain a point: exceptions may be optional; preservation is not. Pa.O.C.R. 7.1 explanatory note; Pa.R.A.P. 302(a). In some situations (e.g., prehearing motions, midhearing objections to evidence), claims are preserved without exceptions. In other situations (e.g., weight claims), exceptions are the only way to preserve issues. Because Appellant did not raise, and could not have raised, her issues before the Orphans' Court issued its analysis and ruling, she needed to preserve those issues by filing exceptions. Having not done so, she waived the matters that she currently argues to us. Therefore, we affirm the court's decree.
Decree affirmed.
Judge Lazarus concurs in the result.