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* 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
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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 childre n, 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 Dep osit 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 p ro 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 con tended 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 co nsent 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. Appella nts 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 Ju ne 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 t o 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 Set tlor, 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 find ings 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 n ot 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 on ly 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 rig hts 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 d uty 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 positi on, 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 b eneficiary 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 consent ed to receiving the Trust’s funds by oral request and that Appellants were bound by that consent.

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### 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: 7/15/2016ap p o i n t m ent o f an aud i tor ." In re: O p i n i on a nd O rd e r o f Cou rt , M arch 7 , 20 1 4 at 4

.

s t ated , " [f]ollo w ing th i s m inor correction , th e accou n ti n g may be co n fir m e d wit h o ut t he for two d i stri bu t i o n s t h at h ad been ina d eq u ate l y d esc r ibed i n t h e acco u n t i n g . The court two m i nor obj e ctions a s to the form of the acco u nt , whic h we s u sta i n e d

. Speci fi ca ll y , the cou rt re f erred the m atter bac k to M&T for t he purpose o f p rov i ding a n exp l a nati o n object. an d t hen a d dress i ng the meri ts , overr u l e d a ll o f the Brothers ' object i ons s ave thereon , the co u rt determ i ne d , as a threshold matte r , t h at t he B rot h ers had s t and i ng t o M&T fi le d a mo ti on to st ri ke the obje ctio n s . F o ll owing briefi n g a nd a rgument o f th e acco u nt. account , g e ne rally obje ct i n g to the m anagemen t of th e trust and objecti ng t o t he for m at I

. Ba ck ground

..... .. 

### = ;:::::, '- n 

### c;;:; ::o ro T h e Lott i e Ivy Dixon Revocab l e Trus t ( t h e T rus t ) was estab l ishe~~985

. ~or£ 

## g

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### z CJ) ::::O '

. ' ::c '" , - i c:, 1985 to 2007 , George F

. D i x o n Il l and R i chard 

### E. D i xon (the Brot h e rs)~~ ~ aiQp e r ~ ~ 

# =: .-., '? ~ , ::, 0 benefic i ari es a nd M&T ( or i Js p redecessor) was the sole trustee

. T he 

## B ~ t @:,8r~ ; b~me; ~ • :;, <:::: 1--' - (") c o - t r ustees i n 200 7 w hen t h e i r mothe r , L ott i e Di xon , d i e d

. On J u ne 26 , 

### : 2 0 ~~. M &1Nile~ ~

, U, C./) > O') .,, a fi rs t a n d p a rti al account of the Tr ust. Th e B roth e rs ra i se d mu l t i pl e objecti ons to M&T' s M as l and , J ., J a n ua ry 7 , 2 0 1 6 : --

IN RE : OP I NION PURSUANT TO PENNS Y LVANIA RULE OF

APPELLATE PROCEDURE 1 925

I N T HE CO URT OF CO M MON P LEAS OF C UM BERLA N D CO U N TY, PEN NS Y LVA NI A
: 2 1
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exc lu sively to. the se ttl or w hil e a trust i s r evocab l e ." 20 Pa

. C

. S

. 

### § 7753(a) ( e m p h asis of t h e beneficiari es are s u bject to the co nt rol o f , a n d the d u ti e s o f t he tr u stee ar e owe d T he PE F Co d e p rov i des , " reg ard less o f the l egal c ap aci ty of t he sett l or , t h e ri gh ts owe d only to t he Settlor , Lott i e 

### I vy Dixo n , du ri ng he r li fe t i me. The co u rt d isa grees. Th e B rothe rs first obj ect to the co u rt ' s co n clus i on t hat t he d ut i es of M&T w ere II

. D i scussi o n 

### 4

. Conc i se Stateme n t of Matters Compla i ned o f on Appea l , f il ed N ove mb e r 1 2 , 2015 at 1 , 8

. T he Cou rt erre d by h old i ng t h at the obj ect i on t o M &T n o t req ui ri n g L ott i e Dixon to reques t distri b u tio n s i n writ in g i s i rre l ev an t becaus e sh e c lea rl y consen t ed to M &T's be h av i or . A. T he C ourt erre d by ap ply i ng 2 0 Pa

. C

. S

. §7753(a) and hold i ng that the d ut i es o f t he Trustee , M &T, w e re owe d only t o the Se tt lor , L ottie 

### I vy Di xo n , duri ng her l i f et i me . a pp eal. The Brothe rs co m p l ai n o f the follow i n g m atte rs o n a pp ea l : necessary corrections, and t h e acco u n t ing was co n firmed

. N ow , th e m atte r i s r i pe for Subseq u e n tly , th e c as e return ed to the Or p hans ' Co u rt , M &T ma d e th e me m orand u m)

. In r e E s tate of Dix

on, 122 A.3 d 4 59 n . 2 ( P a . Su p e r . C t. 2015) (u n p u b li sh ed We a re cog n i zant that the i ss ue s b r i e f e d a nd a rgued in t his a pp ea l w ill a r is e aga i n a s s oon as t h e o rp h an s ' cou rt e nt ers a fi n a l order con fir m ing th e rev i se d accou n t. The e xpense o f ju d i c i al re s o urce s a n d d uplicative e ff ort o n the p a rt of cou n sel i s regrettab l e, b u t we l ack disc r e t i on to ove rl oo k the ju ri s d ict i onal flaw i n A pp ellants ' ap p ea l. T he r ecord does n o t ex p la in w h y A p pe ll a n t s fa il ed to awa i t an appea l ab l e fi n a l ord er. For reaso n s t hat a re t h e i r own , the Bro t hers a pp ea l e d th at o rde r i m me di at ely wit h out wa i t i ng fo r M&T to prov i de the m i nor co rr ectio n s r eque st e d by the court

. O n appea l , our Superi o r Court q uas h e d , no ti n g 21-07
- 0686 OR PH A N S' CO UR T

### - 3- 1 Ava il a b l e at: http ://js g .legls.s t a t e.pa. u s/reso u rc es/ d oc u men ts/ ft p/pu blic atio n s/2 005 ·41 - UT C%20 4 %202005. pdf.

(i i) The add i tio n of 20 Pa

. C

. S

. § 7752( a ) shall not apply to tr u s t s c reated before the effective date of this parag ra p h

. ( i ) The a d d i t i on of 2 0 Pa

. C

. S

. § 7 73 7 shall not apply to o ra l trusts create d before t h e effective date of th i s paragraph

. ( 2 ) The follow in g apply : APP LI CAB ILI TY ( 1) Except as provi d ed in paragraph (2) , the addition o f 20 Pa

. C

. S. Ch

. 7 7 s hall apply to all trusts c reated b e f ore, on or after t h e effect i ve date of this parag raph

. §7753 ( a)

. The full sect i on of the Repo rt reads as fo ll ows : t h ough i t is a pu b l i cally av a i l ab l e document , i t was not w i thout some effort that court was able to locat e a copy onl i ne . 1 W i th the benefit of the entire documen t, i t is c l ear the Brot h ers h ave taken t h e i r quote out of context and i mp l ied that it was germane to t r ustee , M&T. F i rst , we note that t he JSGC R was never made a part of the reco rd and T h us , t hey argue that §7753 ( a ) canno t apply to the p ast act i o n s o f the corporate Br

. at 2 ( emp h asis supp li e d in br i ef)

. Sect ions 7780

. 3 ( 1 ) and 7785 ( b) d ictate when the rules of their respective sections become applicab l e . Und e r the common la w, t he past act i ons of trustees , beneficiar i es and oth e rs re garding t rusts are governed 

### by the l e gal pr i ncipl e In eff e ct wh e n th e a ctions o c curr e d. Chapt e r 7 7 does n o t change thos e common l aw conc e pts

. §7753(a ). They quote : Advisory Committee on Decedents ' Estates L aws relating t o the applicability of Comment of the April 200 5 Jo i nt State Governme n t Commiss i o n ' s Report of the disbursements , i t cannot cont rol. I n support of this argument , they cite to an Officia l portion of the P E F code was not yet enacted at t h e t i me of the challenge d added ). Des p ite this clear statutory language , the B rothers insist that because th i s 21-07
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c o n sent to re c e ive distributions witho u t the formal i ty of fil ing writt e n requests

. That d ist r ibut i ons of tr u st f unds via te l ephone cal l s . These affirmati ve act i ons estab li s h e d her He re , M&T has estab li she d t h at th e Se tt lor, Lottie I vy D i xon, requeste d Com m ent. r e vo c able trust

. . . binds a ll t he beneficia ri es . " 2 0 Pa.C

. S. §7789 , Uniform Law 20 Pa

. C

. S

. 

### § 7789 (emphas i s a d ded ). F u rther, " [ a]n approva l by the sett l e r of a meri t. The P EF Code prov i des : A trustee i s not liabl e to a b e n e fi c i ary· fo r breach of trust i f th e benefic i ary consente d to the conduct c onstit u ting th e b r each , r elease d t h e trustee f rom l i ab il ity for the breach or rat ifi e d t he t ransact i o n constitut i ng t h e breach , unless the consent, release or ratification of the be n e fi c i ary was in du ced by i mproper con d u ct of the trus t ee . shou l d h ave required Lottie Dixon t o request dis t r i but i o n s i n wr i ti n g , i s also without T he Brothers ' se c o n d object i on , that i t was e r ror to d eny that t h e Trustee bank PEF Code were to app l y to all t r u sts crea t ed be fore o r after the effective d ate of thos e changes

. The Brothers' argume n t must fail. i n sect i on ( 1) quo t ed above that the overwhe l ming maj ori ty of the ame nd ments to the prospect i ve l y is at i ssue here

. The Brothers ' argumen t w o uld i gnore the clea r lang u a g e N ei t her of the two l im i ted carve o u t provis i ons who we re to be app l i e d on l y underline d ). J T

. ST. GOVT

. COMM

. Report o f the Adv i sory Comm i ttee on Dece d ent's Estates Laws Apri l 2005 at 133 ( l anguage quoted by Brothe rs ital ici zed) ( court's emphas i s Comment: Sect

i on s 7780

. 3(/) a nd 7785 (

b) d i ctate when the rul

es of t heir respect iv e sec t ions become ap

plica ble. Under the common law , the pa s t actions of trus tees, benefi

ci aries and others rega r d i ng tr usts ar e go v erned by the l

egal pr i nciple i n effect when the actions occurred. Chapter 77 does not change those common law concepts

. 21-07-0686 ORPHA N S ' COUR T- 5 -

C ha rlotte 

### Ivy Dixon 323 Bayv i e w Stree t Camde n , ME 04843 D a n i el 

### L. Sull i van, E squi r e 26 W

. Hi g h Street Carlisle , P A 1 7013 Mar k D

. B ra d shaw , E s qu i re Stevens & L ee , P .C

. 17 N orth Seco nd Stree t 16 1 h F l oor Har ri s b urg, P A 1710 1 Kevi n 

### J
. Ke h n e r, Es q uire O ber mayer R e bm ann Maxwell & H ip p e ! LL P 2 00 L ocus t S t ree t , S u ite 4 00 Harri sburg, P A 17101 Ki mberly M

. Col o nna , Esqu i re 100 P i ne Str ee t P

. 0. Box 1166 Harris bu rg, P A 17 108
- 1 166 B y t he Co urt , affi r med in a ll respects

. For a ll t h ese re a s o ns . we re s p ectf u ll y s ubmi t t h at t h i s court's ord ers sho uld b e 

### 111 . Con c lus ion B ro t he rs ' o bject i on mu s t fa il. a w ri t i n g are immate r ial where the S e tt lor cl ear ly consent e d t o the d is tri b u ti o n s . T h e cons e n t bi n ds all benefici ar ie s . The B rot h e rs' cl a i ms regard in g M&T' s fa i l ure 

### to req uire 21
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