J-A14011-16

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF LOTTIE IVY DIXON IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: GEORGE F. DIXON, III AND 

RICHARD E. DIXON 

No. 1838 MDA 2015

Appeal from the Order Entered September 28, 2015

In the Court of Common Pleas of Cumberland County

Orphans' Court at No(s): 21-07-0686 Orphans’ Court

BEFORE: BOWES, OTT AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED JULY 15, 2016

George F. Dixon, III, and Richard E. Dixon appeal from the September 

28, 2015 order dismissing their objections to and confirming an account filed 

by the trustee of a trust, Appellee M & T Bank. We affirm. 

Lottie Ivy Dixon, a widow, died testate on June 28, 2007. On July 25, 

2007, the Register of Wills of Cumberland County admitted to probate her 

November 16, 2005 last will and testament, and it granted letters 

testamentary to the executor named therein, Marshall L. Dixon. Each of 

Lottie’s four children, Marshall, George, Richard, and Charlotte E. Dixon, 

received specific bequests. Lottie left her residuary estate to the Lottie Ivy 

Dixon Revocable Trust, which was created by an August 19, 1985 trust 
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agreement between Lottie, as settlor, and Dauphin Deposit Bank and Trust 

Company, which is the predecessor in interest to Appellee, as trustee (the 

“Trust”). The Trust’s beneficiaries were Lottie’s four children.

After the will was probated, Appellants filed a petition for appointment 

of an administrator pro tem. Appellants leveled allegations of misconduct 

against Marshall, claiming that Lottie’s mental health deteriorated in 1999 

and suggesting that Marshall defrauded Lottie of at least $1,500,000 

between 1994 and her death. Specifically, Appellants contended that 

Marshall used Lottie’s money to buy expensive items and vacations for 

himself. In their petition, Appellants asked that an administrator pro tem be 

appointed to determine if Marshall acted wrongfully by taking assets from 

Lottie without her consent and averred that Marshall, as executor, had a 

conflict of interest for purposes of such an investigation. 

The court referred the petition to an auditor, who recommended that it 

be denied. The court thereafter adopted that recommendation. Appellants 

filed an appeal to this Court from the denial, and we quashed, concluding 

that the order was interlocutory and unappealable. In re Estate of Dixon, 

29 A.3d 824 (Pa.Super. 2011) (unpublished memorandum). 

On June 26, 2013, Appellee, in its capacity as trustee of the Trust, 

filed a First and Partial Account that covered disbursements that it made to 

Lottie during her lifetime. That account revealed $1,882,174.01 in principal 

and $929,323.73 in income was distributed to Lottie from August 19, 1985 
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to June 28, 2007. The Trust had remaining assets of $11,486.72. On July 

26, 2013, Appellants filed seventeen objections to the account. 

On September 13, 2013, Appellee filed a motion to strike the 

objections, maintaining that Appellants lacked standing to challenge any 

distributions that it made from the Trust, which was fully revocable, to Lottie 

while she was alive. After oral argument, the orphans’ court determined 

that Appellants had standing, denied fifteen objections, and asked Appellee 

to more fully delineate the nature of two disbursements to Lottie since they 

were not adequately explained in the account. Appellants filed a second 

appeal, which was quashed since the order on appeal was not final in that it 

required Appellee to perform corrections to the account. In re Estate 

Dixon, 122 A.3d 459 (Pa.Super. 2015) (unpublished memorandum). 

The corrections were made, the remaining two objections were 

dismissed, and the account was confirmed. This appeal followed. Appellants 

raise these averments on appeal: 

A. Did The Orphans' Court Err By Overruling The Objections 

Relating To The Management of The Trust?

1. Did the Orphans’ Court Err By Applying 20 Pa.C.S. 

§ 7753(a) And Holding That The Duties of Corporate 

Trustee, M&T, Were Owed Only To The Settlor, Lottie 

Ivy Dixon, During Her Lifetime Despite The Language 

Of The Revocable Trust Instrument Imposing A Duty 

on the Corporate Trustee, M&T, To Exercise Its 

Powers In The Best Interests Of The Beneficiaries?

2. Did the Orphans’ Court Err And Abuse Its 

Discretion By Holding That The Objections To M&T’s 
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Failing to Require Lottie Ivy Dixon To Request 

Distributions in Writing Are Irrelevant Because She 

Clearly Consented to M&T’s Behavior? 

Appellant’s brief at 5. 

Initially, we outline the applicable standard of review:

 Our standard of review of the findings of an Orphans' Court is 

deferential.

When reviewing a decree entered by the Orphans' 

Court, this Court must determine whether the record 

is free from legal error and the court's factual 

findings are supported by the evidence. Because the 

Orphans' Court sits as the fact-finder, it determines 

the credibility of the witnesses and, on review, we 

will not reverse its credibility determinations absent 

an abuse of that discretion.

However, we are not constrained to give the same 

deference to any resulting legal conclusions.

In re Estate of Harrison, 745 A.2d 676, 678–79 (Pa.Super. 

2000), appeal denied, 563 Pa. 646, 758 A.2d 1200 (2000) 

(internal citations and quotation marks omitted). “The Orphans'

Court decision will not be reversed unless there has been an 

abuse of discretion or a fundamental error in applying the correct 

principles of law.” In re Estate of Luongo, 823 A.2d 942, 951 

(Pa.Super. 2003), appeal denied, 577 Pa. 722, 847 A.2d 1287 

(2003).

In re Fiedler, 132 A.3d 1010, 1018 (Pa.Super. 2016) (quoting In re 

Estate of Whitley, 50 A.3d 203, 206–207 (Pa.Super. 2012)).

Appellants first posit that the orphans’ court incorrectly ruled that, 

under the revocable Trust, Appellee owed only Lottie a duty for purposes of 
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the account, which covered distributions made during Lottie’s lifetime. In 

this respect, the orphans’ court applied 20 Pa.C.S. § 7753(a).1 That section 

articulates, “Regardless of the legal capacity of the settlor, the rights of the 

beneficiaries are subject to the control of, and the duties of the trustee are 

owed exclusively to, the settlor while a trust is revocable.” 20 Pa.C.S. § 

7753(a). The court correctly observed that this language plainly provides 

the Appellee’s duty inured solely to the benefit of Lottie during her lifetime. 

Appellants also suggest that Appellee’s disbursements to Lottie were 

improper since she requested them orally over the telephone rather than in 

a written document. In rejecting this position, the orphans’ court relied 

upon 20 Pa.C.S. § 7789, which states, in pertinent part, “A trustee is not 

liable to a beneficiary for breach of trust if the beneficiary consented to the 

conduct constituting the breach . . . unless the consent . . . of the 

beneficiary was induced by improper conduct of the trustee.” The orphans’ 

court further observed that, “An approval by the settlor of a revocable trust . 

. . binds all the beneficiaries.” Id. The court concluded that, under these 

precepts, Lottie consented to receiving the Trust’s funds by oral request and 

that Appellants were bound by that consent. 

____________________________________________

1

 Chapter 77 of the Probate, Estates, and Fiduciaries Code was enacted in 

2005 and expressly applies, with two exceptions inapplicable herein, to all 

trusts created before, on or after the effective date of Chapter 77’s 

enactment. 
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After consideration of the facts, briefs, and applicable law, we conclude 

that the rulings challenged on appeal are free from legal error and that the 

court’s factual findings are supported by the record. Based upon the 

January 7, 2016 opinion of the Honorable Albert H. Masland, we affirm the 

order dismissing Appellants’ objections and confirming the First and Partial 

Account 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2016
appointment of an auditor." In re: Opinion and Order of Court, March 7, 2014 at 4. 

stated, "[f]ollowing this minor correction, the accounting may be confirmed without the 

for two distributions that had been inadequately described in the accounting. The court 

two minor objections as to the form of the account, which we sustained. Specifically, 

the court referred the matter back to M&T for the purpose of providing an explanation 

object. and then addressing the merits, overruled all of the Brothers' objections save 

thereon, the court determined, as a threshold matter, that the Brothers had standing to 

M&T filed a motion to strike the objections. Following briefing and argument 

of the account. 

account, generally objecting to the management of the trust and objecting to the format 

I. Background ....... = ;:::::, '- n c;;:; ::o ro 

The Lottie Ivy Dixon Revocable Trust (the Trust) was establishe~~985. ~or£ g 

...... -0 ....... z CJ)::::O ' . ' ::c '" , -i c:, 

1985 to 2007, George F. Dixon Ill and Richard E. Dixon (the Brothers)~~ ~aiQper~ ~ 

=: .-.,'? ~ ,::, 0 

beneficiaries and M&T (or iJs predecessor) was the sole trustee. The B~t@:,8r~; b~me; ~ 

• :;, <:::: 1--' - (") 

co-trustees in 2007 when their mother, Lottie Dixon, died. On June 26, :20~~. M&1Nile~ ~ 

, U, C./) 

> O') .,, 

a first and partial account of the Trust. The Brothers raised multiple objections to M&T's 

Masland, J., January 7, 2016:-- 

IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF 

APPELLATE PROCEDURE 1925 

IN THE COURT OF COMMON PLEAS OF 

CUMBERLAND COUNTY, PENNSYLVANIA 

: 21-07-0686 ORPHANS' COURT 

IN RE: 

ESTATE OF LOTIIE IVY DIXON 

Circulated 06/22/2016 12:06 PM
-2- 

exclusively to. the settlor while a trust is revocable." 20 Pa.C.S. § 7753(a) (emphasis 

of the beneficiaries are subject to the control of, and the duties of the trustee are owed 

The PEF Code provides, "regardless of the legal capacity of the settlor, the rights 

owed only to the Settlor, Lottie Ivy Dixon, during her lifetime. The court disagrees. 

The Brothers first object to the court's conclusion that the duties of M&T were 

II. Discussion 

4. 

Concise Statement of Matters Complained of on Appeal, filed November 12, 2015 at 1, 

8. The Court erred by holding that the objection to M&T not requiring Lottie 

Dixon to request distributions in writing is irrelevant because she clearly 

consented to M&T's behavior. 

A. The Court erred by applying 20 Pa.C.S. §7753(a) and holding that the duties 

of the Trustee, M&T, were owed only to the Settlor, Lottie Ivy Dixon, during her 

lifetime. 

appeal. The Brothers complain of the following matters on appeal: 

necessary corrections, and the accounting was confirmed. Now, the matter is ripe for 

Subsequently, the case returned to the Orphans' Court, M&T made the 

memorandum). 

In re Estate of Dixon, 122 A.3d 459 n.2 (Pa. Super. Ct. 2015) (unpublished 

We are cognizant that the issues briefed and argued in this appeal will 

arise again as soon as the orphans' court enters a final order confirming the 

revised account. The expense of judicial resources and duplicative effort on the 

part of counsel is regrettable, but we lack discretion to overlook the jurisdictional 

flaw in Appellants' appeal. The record does not explain why Appellants failed to 

await an appealable final order. 

For reasons that are their own, the Brothers appealed that order immediately 

without waiting for M&T to provide the minor corrections requested by the court. On 

appeal, our Superior Court quashed, noting 

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1 Available at: http://jsg.legls.state.pa.us/resources/ documents/ftp/publications/2005·41- 

UTC%204%202005. pdf. 

(ii) The addition of 20 Pa.C.S. § 7752(a) shall not apply to trusts created 

before the effective date of this paragraph. 

(i) The addition of 20 Pa.C.S. § 7737 shall not apply to oral trusts created 

before the effective date of this paragraph. 

(2) The following apply: 

APPLICABILITY 

(1) Except as provided in paragraph (2), the addition of 20 Pa.C.S. Ch. 77 shall 

apply to all trusts created before, on or after the effective date of this paragraph. 

§7753(a). The full section of the Report reads as follows: 

though it is a publically available document, it was not without some effort that court was 

able to locate a copy online.1 With the benefit of the entire document, it is clear the 

Brothers have taken their quote out of context and implied that it was germane to 

trustee, M&T. First, we note that the JSGCR was never made a part of the record and 

Thus, they argue that §7753(a) cannot apply to the past actions of the corporate 

Br. at 2 (emphasis supplied in brief). 

Sections 7780.3(1) and 7785(b) dictate when the rules of their respective 

sections become applicable. Under the common law, the past actions of 

trustees, beneficiaries and others regarding trusts are governed by the 

legal principle In effect when the actions occurred. Chapter 77 does not 

change those common law concepts. 

§7753(a). They quote: 

Advisory Committee on Decedents' Estates Laws relating to the applicability of 

Comment of the April 2005 Joint State Government Commission's Report of the 

disbursements, it cannot control. In support of this argument, they cite to an Official 

portion of the PEF code was not yet enacted at the time of the challenged 

added). Despite this clear statutory language, the Brothers insist that because this 

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consent to receive distributions without the formality of filing written requests. That 

distributions of trust funds via telephone calls. These affirmative actions established her 

Here, M&T has established that the Settlor, Lottie Ivy Dixon, requested 

Comment. 

revocable trust ... binds all the beneficiaries." 20 Pa.C.S. §7789, Uniform Law 

20 Pa.C.S. § 7789 (emphasis added). Further, "[a]n approval by the settler of a 

merit. The PEF Code provides: 

A trustee is not liable to a beneficiary· for breach of trust if the beneficiary 

consented to the conduct constituting the breach, released the trustee from 

liability for the breach or ratified the transaction constituting the breach, unless 

the consent, release or ratification of the beneficiary was induced by improper 

conduct of the trustee. 

should have required Lottie Dixon to request distributions in writing, is also without 

The Brothers' second objection, that it was error to deny that the Trustee bank 

PEF Code were to apply to all trusts created before or after the effective date of those 

changes. The Brothers' argument must fail. 

in section (1) quoted above that the overwhelming majority of the amendments to the 

prospectively is at issue here. The Brothers' argument would ignore the clear language 

Neither of the two limited carve out provisions who were to be applied only 

underlined). 

JT. ST. GOVT. COMM. Report of the Advisory Committee on Decedent's Estates Laws 

April 2005 at 133 (language quoted by Brothers italicized) (court's emphasis 

Comment: Sections 7780.3(/) and 7785(b) dictate when the rules of their 

respective sections become applicable. Under the common law, the past actions 

of trustees, beneficiaries and others regarding trusts are governed by the legal 

principle in effect when the actions occurred. Chapter 77 does not change those 

common law concepts. 

21-07-0686 ORPHANS' COURT 
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Charlotte Ivy Dixon 

323 Bayview Street 

Camden, ME 04843 

Daniel L. Sullivan, Esquire 

26 W. High Street 

Carlisle, PA 17013 

Mark D. Bradshaw, Esquire 

Stevens & Lee, P.C. 

17 North Second Street 

161h Floor 

Harrisburg, PA 17101 

Kevin J. Kehner, Esquire 

Obermayer Rebmann Maxwell & Hippe! LLP 

200 Locust Street, Suite 400 

Harrisburg, PA 17101 

Kimberly M. Colonna, Esquire 

100 Pine Street 

P .0. Box 1166 

Harrisburg, PA 17108-1166 

By the Court, 

affirmed in all respects. 

For all these reasons. we respectfully submit that this court's orders should be 

111. Conclusion 

Brothers' objection must fail. 

a writing are immaterial where the Settlor clearly consented to the distributions. The 

consent binds all beneficiaries. The Brothers' claims regarding M&T's failure to require 

21-07-0686 ORPHANS' COURT