In Re Estate of Braun

650 A.2d 73, 437 Pa. Super. 372, 1994 Pa. Super. LEXIS 3353
CourtSuperior Court of Pennsylvania
DecidedNovember 14, 1994
StatusPublished
Cited by22 cases

This text of 650 A.2d 73 (In Re Estate of Braun) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Braun, 650 A.2d 73, 437 Pa. Super. 372, 1994 Pa. Super. LEXIS 3353 (Pa. Ct. App. 1994).

Opinions

BROSKY, Judge.

This is an appeal from the final order of the Orphans’ court denying appellant’s petition to discharge a lien on her real property and directing her to pay appellee the sum of $4,534.32.

Appellant presents the following issues for review: (1) whether the trial court erred in applying the interest rate set forth in a prior court order and decree, which provided for the payment of interest at a rate in excess of the maximum statutory rate; (2) whether an individual can waive application of the usury law by agreeing to an interest rate in excess of that provided by the statute; (3) whether the trial court erred in calculating the amount owed to appellee by providing for compound rather than simple interest; and (4) whether the trial court erred in computing the amount owed to appellee by permitting appellee to recover interest on the debt after the date on which appellant tendered a lesser sum in compromise of the parties’ dispute. For the reasons set forth below, we affirm.

Before proceeding to address appellant’s allegations of error, it is necessary to recount the relevant facts giving rise to this appeal. John Braun died testate on April 9, 1973. Mr. Braun’s will directed his executor to pay his just debts and funeral expenses from assets of the estate. The will further devised the remainder of the estate to the decedent’s wife, [375]*375Maurine Braun, who is the appellant herein. Mr. Braun’s estate consisted solely of a tract of realty which was valued in 1973 at $10,500.

The decedent’s funeral expenses amounted to $1,316.00. When full payment was not made, appellee, Stewart Barn-hill/Stewart Barnhill Funeral Home, filed a claim against the estate which was identified in the executor’s account. Due to the illiquidity of the estate, the executor was unable to satisfy the claim absent a sale of the decedent’s only asset. To avoid this result and preserve the land for the decedent’s widow, the parties agreed that appellee’s claim would become a charge against the realty. Accordingly, an adjudication and decree of distribution, dated July 1, 1975 as well as a separate order, dated June 20, 1975, were entered creating a lien on the property for the balance owed to appellee together with interest at a rate of eight percent (8%) per annum. The June order further provided for payment in the sum of $50.00 per month until the principal and interest accruing on the unpaid balance were paid in full. Following entry of the June order and final decree, appellant made four monthly payments in the sum of $50.00 upon the debt.1 Appellant made no further payments after October, 1975. Appellant likewise did not seek review of either the June order or the final adjudication and decree within the time period prescribed by law. The charge against the property was subsequently recorded and indexed as a lien on the estate in September, 1977.

Appellant sold her property in March, 1992 at which time she tendered the sum of $2,574.24 in compromise of the debt owed to appellee. Appellee refused to accept appellant’s offer of partial payment. As the parties were unable to settle their dispute, appellant filed a petition in October, 1993 requesting [376]*376that the court compute the amount of the debt from July, 1975 using a rate of 6% simple interest and directing that the lien be discharged upon payment. By order entered on November 30, 1993 the trial court determined that appellant owed appellee the sum of $4,534.32 as of November 23,1993 and provided that the lien would be discharged upon payment. Appellant thereafter appealed from the entry of this order.

As a preliminary matter, we note that appellant has failed to apprise us of the applicable scope and standard of review as mandated by Pa.R.A.P., 3518(a), 42 Pa.C.S.A.2 Appellee likewise has not supplied us with the standard and scope of review. Our independent research of this matter has disclosed the appropriate standard, which has been explicated by our Supreme Court as follows:

The standard of review of a decision of the Orphans’ Court is to assure that the record is free from legal error and to determine if the chancellor’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence .... [Moreover, the] chancellor, sitting as the trier of fact and viewing the witnesses] ha[s] the best opportunity to judge the credibility of and the weight to be assigned to th[e] testimony, and h[is] findings cannot be disturbed absent an abuse of discretion. Thus, while the [petitioner’s] burden of proof is one of law, the reviewing court cannot reverse the chancellor’s findings based merely upon its conclusion as to the weight to be given to ... [the] testimony, for that is within the sole province of the trier of fact.

In re: Estate of Cornell, 511 Pa. 475, 479-480, 515 A.2d 555, 557 (1986) (citations and quotation marks omitted). Accord Estate of Getz, 421 Pa.Super. 513, 520, 618 A.2d 456, 459 (1992); In re: Benson, 419 Pa.Super. 582, 585, 615 A.2d 792, 793 (1992). While our review of the Orphans’ Court findings [377]*377of fact is limited to considering whether they are supported by the record, we are not so restricted in reviewing the legal conclusions derived therefrom. Estate of Getz, supra. We will evaluate the decision of the Orphans’ Court in accordance with these considerations.

Appellant’s first and second questions both concern the chancellor’s decision to uphold the interest rate of eight percent (8%), as set forth in the 1975 order and decree. Because these issues are interrelated they will be addressed together. With respect to these matters, appellee contends that appellant is precluded from challenging the provisions of the 1975 order and decree and the interest rate specified therein pursuant to the provisions of the Probate, Estates and Fiduciaries Code (“PEF Code”), 20 Pa.C.S.A. § 3521 and res judicata principles. Appellant, however, responds that appellee has waived this claim because appellee failed to raise it in the lower court proceedings. Although appellee neither recited the words “res judicata” nor referenced the PEF Code, he asserted that the prior order and decree affixing the interest rate were final and that appellant’s claims were waived by her failure to appeal therefrom. See Creditor’s Brief in Opposition to Petition to Discharge Property from Lien, filed 11/22/93, at 2. This argument sufficiently apprised the lower court that appellant’s attempt to challenge the prior order and decree was precluded by the finality principles which underlie both the PEF Code and the doctrine of res judicata. Appellee thus adequately preserved this matter for review. See, e.g., American Association of Meat Processors v. Casualty Reciprocal Exchange, 527 Pa. 59, 67, 588 A.2d 491, 495 (1991) (affirmative defense of illegality was not waived even though it was raised for the first time in post-trial motions).

Our Supreme Court has recognized that an order confirming an account and ordering distribution of an estate becomes final when no appeal is timely filed therefrom. In re: Estate of Litostansky, 499 Pa.

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In Re Estate of Braun
650 A.2d 73 (Superior Court of Pennsylvania, 1994)

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Bluebook (online)
650 A.2d 73, 437 Pa. Super. 372, 1994 Pa. Super. LEXIS 3353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-braun-pasuperct-1994.