In re Estate of Mumma

41 A.3d 41, 2012 Pa. Super. 41, 2012 WL 556462, 2012 Pa. Super. LEXIS 45
CourtSuperior Court of Pennsylvania
DecidedFebruary 22, 2012
StatusPublished
Cited by24 cases

This text of 41 A.3d 41 (In re Estate of Mumma) 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 Mumma, 41 A.3d 41, 2012 Pa. Super. 41, 2012 WL 556462, 2012 Pa. Super. LEXIS 45 (Pa. Ct. App. 2012).

Opinions

OPINION BY

DONOHUE, J.:

Appellant, Robert M. Mumma, II (“Mumma II”), appeals the order of the Orphan’s Court dated March 4, 2011, denying his Motion for Disqualification and Removal of Lisa M. Morgan (“Morgan”) as Executrix and Trustee Due to Conflict of Interest (hereinafter, the “Motion for Disqualification”).1 For the reasons that follow, we affirm the trial court’s order.

Robert M. Mumma, Sr. (“Mumma Sr.”) died on April 12, 1986. In his will, he established two trusts, a marital trust and a residual trust. He named his wife, Barbara McK. Mumma (“Mrs. Mumma”) and Morgan, one of his daughters, as the two trustees of both trusts and co-executrixes of his estate. On July 10, 2010, Mrs. Mumma died, and Morgan then became the sole trustee of the two Mumma, Sr. trusts. Mrs. Mumma named Morgan as the executrix of her estate and principal beneficiary of her will, and Morgan also serves as the sole trustee of a trust Mrs. Mumma established during her lifetime, of which Morgan is the sole beneficiary.

In 2004, Mrs. Mumma and Morgan filed a final accounting for Mumma, Sr.’s estate, including a fourth interim account for the marital trust and a third interim account for the residual trust. In response, Mum-ma II and his sister, Barbara M. Mumma (“B.M. Mumma”), filed numerous objections to the accounts, and Mumma II also filed numerous motions. Beginning in April of 2009 and continuing through June 16, 2010, a court-appointed auditor presided over thirty-three days of hearings in an effort to resolve these objections and motions. Following Mrs. Mumma’s death in July 2010, Morgan filed final accounts for the Mumma, Sr. trusts and petitioned the trial court for confirmation. Mumma II and B.M. Mumma again filed numerous objections, which were in turn referred to the court-appointed auditor, who conducted more hearings. On September 17, 2010, pursuant to the First Codicil to Mumma, Sr.’s will, B.M. Mumma became the successor co-executrix of his estate to replace Mrs. Mumma.

On September 9, 2010, Mumma II filed his Motion for Disqualification. Therein, he acknowledges that this constitutes the fourth motion/petition he has filed since 1989 seeking the removal of Morgan as the executrix of Mumma, Sr.’s estate and trustee of the marital and residual trusts.2 On [44]*44January 28, 2011, the trial court conducted an evidentiary hearing on the Motion for Disqualification. In its written opinion pursuant to Pa.R.A.P. 1925(a), the trial court provided the following review of that hearing:

As was evident at the January 28, 2011 hearing, and from his [Motion for Disqualification], hearing brief, and post-hearing brief, [Mumma II] contended that [Morgan’s] dual roles as executrix and primary beneficiary of the Estate of Mrs. Mumma and Co-Executrix and trustee in the Estate of [Mumma, Sr.], established a conflict of interest, resulting in a breach of [Morgan’s] fiduciary duties through her failure “to avoid placing herself in a position where her own interests ... enter into conflict — or may possibly conflict — with the interests of the Estate and Residuary Trust and/or the said beneficiaries thereof.”
At the hearing, [Morgan] confirmed that she was the sole executrix and primary beneficiary of the Estate of Mrs. Mum-ma in Florida, and that she first became aware of a certain trust that Mrs. Mum-ma had established prior to her death, and which apparently ultimately inured to [Morgan’s] benefit, shortly before Mrs. Mumma’s death. She testified that, pursuant to the marital trust, “[Mrs. Mumma] had an absolute right to a five-percent draw” to income, whether derived from the residuary or marital trust. In response to [Mumma II’s] inquiry which related to an alleged over-funding of the marital trust, [Morgan] testified that “[she] believe[d any over-funded money would go] back into the residuary trust,” which had “the same beneficiaries as the marital trust.”
[Morgan] further testified that certain shares of a corporation listed in an inventory of the Estate of Mrs. Mumma were purchased by Mrs. Mumma prior to her death. On cross-examination, [Morgan] testified regarding the right to income Mrs. Mumma was entitled to receive from the residual and marital trusts under the will of [Mumma, Sr.], as follows:
Q: Did that payment of income [from the residual and marital trusts] to [Mrs. Mumma] cease as of [Mrs. Mumma’s] death?
A: Yes.
Q: So no income on trust assets has been paid to her estate since her death?
A: Correct
Q: And you have not purported as an executor of her estate to try to pull down any assets from the trust, correct?
A: Correct. My understanding is that that benefit that [Mumma, Sr.] provided [to] her ceased upon her death as well.
With respect to her administration of the estates since Mrs. Mumma’s death, [Morgan] testified that she had not engaged in any transaction that would transfer assets from her father’s estate to her mother’s estate, of which she was the primary beneficiary:
Q: Have you engaged in any transaction in which an asset of the residu[45]*45al trust or the marital trust under [Mumma, Sr’s] will was transferred to your mother’s estate?
A: No.
Q: Do you have any contemplated transactions to take any assets from the trusts under [Mumma, Sr’s] will that are [i]n adjudication here in Carlisle and transfer them to your mother’s estate?
A: No.
[Morgan’s] actions and intentions to which she testified at the hearing were further supported by an August 27, 2010 communication sent by her to [Mumma II] and to Co-Executrix [B.M. Mumma], which was in response to a request for information about certain assets:
Ms. Morgan does not intend as trustee to sell or otherwise dispose of real estate, stock or other noncash assets in the trusts ... without seeking and obtaining prior approval of the Orphans’ Court.
As to the progress being made toward dissolving the trusts, [Morgan] testified that, “[w]e have already obtained the real estate appraisals. We hired an appraisal agency, and they concluded the appraisals, and time flies, but within the last month or so, we forwarded [the appraisals] to the other beneficiaries.” Additionally, [Morgan] testified to her intentions and plans to properly dissolve the trusts as follows:
Q. What is your ultimate plan as to how to bring an end to the administration of the two trusts under your father’s will?
A: Once we have all of the values, it is my intent to seek from the beneficiaries, if they have any specific interests in any particular asset that they would like to have, and I believe ... [in] that October meeting ... I asked them if they had any particular asset they were interested -in for cash or whatever, to give me some indication.
So my plan is to seek that and then to — based on that to prepare a plan of dissolution for presentation to the Court for Court approval that it is okay, and then if the Court says it is okay, or the Court makes an adjustment to it, to dissolve the trust on that basis.

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Bluebook (online)
41 A.3d 41, 2012 Pa. Super. 41, 2012 WL 556462, 2012 Pa. Super. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-mumma-pasuperct-2012.