J-S47011-18

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DECEASED

APPEAL OF: PATRICK BRYAN, 

EXECUTOR

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1498 WDA 2017

Appeal from the Order September 19, 2017

In the Court of Common Pleas of Fayette County Orphans' Court at 

No(s): No. 26-11-0418

BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED NOVEMBER 20, 2018

Appellant, Patrick Bryan, appeals from the order entered on September 

19, 2017, directing Appellant, as executor of Leroy Bryan’s estate, to convey 

title and interest in mineral, oil, and gas rights to beneficiaries of the estate. 

We vacate the order.

We briefly summarize the facts and procedural history of this case as 

follows. On January 22, 2010, Leroy Bryan, executed his last will and 

testament (without the benefit of legal counsel), naming three primary 

beneficiaries, Appellant, Lois Bryan (Appellant’s widowed sister-in-law), and 

Jeannette Hariharan (Appellant’s sister). Leroy Bryan died on May 11, 2011 

and Appellant was named executor on May 31, 2011. Thereafter, Appellant 

transferred land and mineral rights from the estate to a limited liability 

company wherein Appellant was the sole shareholder. On September 6, 2016, 

Appellant filed a petition for adjudication/statement of proposed distribution. 
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On October 5, 2016, Lois Bryan filed objections. The trial court held a hearing 

on November 3, 2016. On September 19, 2017, the trial court entered the 

subject order directing Appellant to, inter alia:

execute the necessary [d]eed to identify the property as contained 

in the [w]ill of the [d]ecedent, Leroy Bryan, and to fully convey 

the right, title, and interest in and to the mineral, oil, and gas 

rights in and underlying the subject property unto the heirs of the 

estate. The deed shall contain specific language that the 

percentage ownership interest in the mineral, oil and gas rights 

are conveyed outright unto the heirs, and their successors or 

assigns. All mineral, oil and gas rights other than the Leighty Well 

are to be conveyed to the heirs as follows: Patrick Bryan [-]

37.5%[;] Jeannette Hariharan [-] 31.25%; and, Lois Bryan [-]

31.25%. All mineral, oil and gas rights and royalties related to 

the Leighty Well will be conveyed as follows: Patrick Bryan [-]

45%; Jeannette Hariharan [-] 27.5%; and, Lois Bryan [-] 27.5%.

Trial Court Order, 9/19/2017, at 3 ¶11. This timely appeal resulted.1

On appeal, Appellant presents the following issues for our review:

1. Did the [trial c]ourt commit an error of law in finding that a 

devise of an income stream to an individual was, in fact, a 

devise to that individual and [to her] successors and assigns?

2. Did the [trial c]ourt commit an error of law in finding that the 

devise of product and royalties was, in fact, a devise of full 

ownership in the subsurface interest?

Appellant’s Brief at 8.

Initially, we note that Appellant presented the above-listed issues in his 

Rule 1925(b) statement and in the statement of questions presented section 

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1

 Appellant filed a notice of appeal on October 15, 2017. On October 19, 

2017, the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(a). Appellant complied 

timely on November 13, 2017. The trial court filed a statement in lieu of an 

opinion on April 18, 2018.
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of his appellate brief. In the argument section of his brief, however, Appellant 

divided his discussion into seven sections in violation of our rules of appellate 

procedure. See Pa.R.A.P. 2119(a) (“The argument shall be divided into as 

many parts as there are questions to be argued[.”]). Regardless, the seven 

sections of Appellant’s argument present various supportive contentions 

relating to the two preserved, appellate issues challenging the trial court’s 

interpretation of Leroy Bryan’s will. Thus, we will examine them in a single 

discussion.

Appellant challenges the trial court’s interpretation of “paragraph two of 

the subject will” which addresses “distribution of royalties from the subsurface 

[oil, gas, and mineral] interest[s] in a farm.” Appellant’s Brief at 11. That 

paragraph states:

I also will the farm land of approximately 34 acres to Patrick[,]

but you must promise Jeanette and Lois that you will never sell it. 

Pat, don’t ever sell this land. It could be the salvation for this 

family during hard times. You could sell lots along the road 

(min[u]s the mineral rights) but only to family members. The land 

also contains all the mineral rights which I was smart enough to 

obtain. I was one in a million able to do this. Vicky and several 

lawyers told me that I would never get the gas rights and well. 

Gas obtained from the Leighty well now producing gas, Pat will 

share it with Jeanette and Lois on this basis. I will the following: 

Pat 60%[,] Jeanette 20%[,] and Lois 20%. Pat will provide proof 

of sale. Pat [receives] the higher rate because of his work with it 

and paying the taxes. If gas is obtained from the Marcellus or any 

other seam or method, then Pat will share the royalty from those 

sales. Those percentages will be as follows: Pat = 50%, Jeanette 

= 25%, [and] Lois [=] 25%. If at the end of the year it is deemed 

that Pat is paying more than 20% in taxes, then adjustments in 

Jeanette[’s] and Lois[’] income should be made. I’m doing the 

farm this way because I cannot will the farm to all of you because 

then it could become owned over time by many heirs and 
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eventually become worthless. There [are] more seams of gas 

below the Marcellus and some day probably will be extracted. This 

is my legacy to you all.

Last Will and Testament of Leroy Bryan, 1/22/2010, at 2. 

Appellant contends that the trial court erred in its construction of the 

quoted language. Specifically, he claims that the decedent clearly intended 

“that [Appellant] was to own both the surface and subsurface interests and [] 

that the farm be kept intact (except for limited sales of specific lots to family 

members).” Appellant’s Brief at 12. Appellant claims, “[the d]ecedent 

specified that his income stream(s) be divided among his son, his daughter, 

and his daughter-in-law.” Id. at 13. He further argues that, “[d]ecedent’s 

direction that the distribution of royalties be varied based upon the source of 

the royalties can be implemented only by distribution of the income during the 

lives of the beneficiaries.” Id. at 15. Appellant claims that Leroy Bryan 

expressed no intention of separating surface and subsurface interests in the

land. Id. at 16. Appellant suggests “the [c]ourt below transformed the 

specific bequests of shares in the various income streams (with varying 

distribution shares) into bequests of fee simple title [and, thereby], extended 

the lifetime gift of income to [the] heirs, successors, and assigns [of 

designated beneficiaries, Lois Bryan and Jeanette Hariharan.]” Id. at 19. 

Our standard for reviewing an Orphans' Court findings is deferential:

The findings of a judge of the [O]rphans' [C]ourt division, sitting 

without a jury, must be accorded the same weight and effect as 

the verdict of a jury, and will not be reversed by an appellate court 

in the absence of an abuse of discretion or a lack of evidentiary 

support. This rule is particularly applicable to findings of fact which 
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are predicated upon the credibility of the witnesses, whom the 

judge has had the opportunity to hear and observe, and upon the 

weight given to their testimony. In reviewing the Orphans' Court's 

findings, our task is to ensure that the record is free from legal 

error and to determine if the Orphans' Court's findings are 

supported by competent and adequate evidence and are not 

predicated upon capricious disbelief of competent and credible 

evidence.

When the [Orphans' C]ourt has come to a conclusion through the 

exercise of its discretion, the party complaining on appeal has a 

heavy burden. It is not sufficient to persuade the appellate court 

that it might have reached a different conclusion if, in the first 

place, charged with the duty imposed on the court below; it is 

necessary to go further and show an abuse of the discretionary 

power. An abuse of discretion is not merely an error of judgment, 

but if in reaching a conclusion the law is overridden or misapplied, 

or the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill-will, as shown by the 

evidence of record, discretion is abused. A conclusion or judgment 

constitutes an abuse of discretion if it is so lacking in support as 

to be clearly erroneous.... If the lack of evidentiary support is 

apparent, reviewing tribunals have the power to draw their own 

inferences and make their own deductions from facts and 

conclusions of law. Nevertheless, we will not lightly find reversible 

error and will reverse an [O]rphans' [C]ourt decree only if the 

[O]rphans' [C]ourt applied an incorrect rule of law or reached its 

decision on the basis of factual conclusions unsupported by the 

record.

In re Estate of Warden, 2 A.3d 565, 571 (Pa. Super. 2010) (citations 

omitted).

Concerning will interpretation, this Court has previously determined:

It is now hornbook law (1) that the testator's intent is the polestar 

and must prevail; and (2) that his intent must be gathered from 

a consideration of (a) all the language contained in the four 

corners of his will and (b) his scheme of distribution and (c) the 

circumstances surrounding him at the time he made his will and 

(d) the existing facts; and (3) that technical rules or canons of 

construction should be resorted to only if the language of the will 
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is ambiguous or conflicting or the testator's intent is for any 

reason uncertain.

Thus, the primary goal of the construing court is to effectuate the 

intent of the testator. In order to ascertain the testamentary

intent, a court must focus first and foremost on the precise 

wording of the will, and if ambiguity exists, on the circumstances 

under which the will was executed. The words of a will are not to 

be viewed in a vacuum, and specific words or phrases will be 

rejected when they subvert or defeat the testator's whole 

testamentary scheme and divest the bounty from those whom he 

obviously intended to benefit. The interpretation of a will is a 

question of law, and thus our standard of review is de novo and 

our scope of review is plenary. 

Murphy v. Karnek, 160 A.3d 850, 861–862 (Pa. Super. 2017) (internal 

citations and quotations omitted). 

The trial court first recognized that the will did not authorize Appellant 

to create a limited liability corporation to manage the royalties from gas and 

oil leases on the subject land. Trial Court Statement in Lieu of Opinion, 

4/18/2018, at 4. The trial court found that Appellant’s limited liability 

company “was not an authorized method of distributing the gas royalties 

[under the will] because it would leave the other heirs, Jeanette and Lois, with 

no enforceable property interest in future wells.” Id. at 5. Instead, “it was 

[the trial] court’s interpretation that the testator intended a permanent 

division of the future gas royalties, and that the only way to effectuate that 

intention was to treat it as a devise of real estate [to Appellant’s cobeneficiaries, Jeanette and Lois].” Id. at 3. Thus, the trial court 

“determine[d] that a devise of the mineral rights in percentage shares was 

the best [it] could do to honor the testator’s poorly drafted amateur will.” Id.
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at 4. Moreover, the trial court noted that it appeared that the decedent 

wanted to treat all three heirs equally, despite a specific devise of $50,000.00 

to Appellant as executor (as set forth in another, uncontested provision of the 

will) and a larger percentage of oil and gas royalties for Appellant to pay 

“taxes.” Id. at 5. However, the trial court recognized that there were “no 

real estate taxes levied on gas in the ground because it is fugacious and 

cannot be located or assessed” and that “each heir is fully capable of paying 

their own income taxes on their individual share of the royalties.” Id.

(emphasis in original). Thus, the trial court slightly modified the percentage 

of royalties Appellant was to receive, with him still receiving a larger 

percentage of royalties than the other beneficiaries.

2

 Id. at 5-6. The trial 

court concluded that its interpretation of the subject will “was the result of a 

concerted effort to follow the intentions of the testator without blindly 

accepting [Appellant’s] selfish and unfair interpretation.” Id. at 6. Upon 

review, we discern the trial court erred in construing the subject will.3 

Here, the will unambiguously provides that Appellant was to receive sole 

ownership of the farm property and its subsurface mineral rights. There is no 

dispute that Appellant was to receive “the farm land of approximately 34 acres 

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2

 None of the parties challenges the percentages allocated by the trial court.

3

 Initially, we note that the trial court did not cite any legal authority in 

support of its order or subsequent statement in lieu of an opinion. 

Nevertheless, from our examination of the record and applicable law, we are 

able to address thoroughly the issues raised on appeal.
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deed[ed] to [Appellant].” Last Will and Testament of Leroy Bryan, 1/22/2010, 

at 2. The will directs that Appellant receive the land, with the proviso that he 

promise to Jeanette and Lois that he would not sell it. The decedent 

unequivocally states that he did not want the property to be diluted or 

subdivided over time by subsequent heirs. The will then states that “the land 

also contains all the mineral rights[.]” Id. (emphasis added). When all of 

the provisions are read in conjunction, the decedent clearly gave Appellant all 

of the farmland, which also contained the subsurface mineral rights. The 

specific language twice directing that Appellant share the royalties generated 

with Jeanette and Lois, and provide them with proof of sales, further supports 

such interpretation. When read together, the unambiguous provisions of the 

will gave Appellant sole ownership interest in the surface and subsurface of 

the deeded property.4 There is simply no language in the will that suggests 

the decedent intended to devise separate ownership interests in the mineral 

estate to Jeanette and Lois. Accordingly, the trial court erred when it

determined that the testator intended a permanent division of future gas 

royalties that required a distribution of separate ownership interests to 

Appellant, Jeanette, and Lois. In short, the trial court’s assessment was

contrary to the testator’s intent, as gathered from the plain, unambiguous 

language of the will and the scheme of distribution thereunder. 

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4

 As such, we reject the trial court’s contention that Leroy Bryan “want[ed] 

to treat all three heirs [(Appellant, Jeanette, and Lois)] equally[.]’ Trial Court 

Statement in Lieu of Opinion, 4/18/2018, at 5.
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In turn, the trial court erred by amending the royalty percentages 

allotted to the three named beneficiaries. The testator provided clear and 

unambiguous direction that Appellant was to receive 60% of the proceeds 

(with the remaining 40% to be split by Jeanette and Lois) from a well already 

producing gas, designated as the Leighty well. With regard to future, yet 

unknown royalties obtained by other extraction methods, the will directed that 

Appellant receive 50% of them and that Jeanette and Lois are each to receive 

a 25% interest. While the will further directs Appellant to make tax 

adjustments to royalties to Jeanette and Lois as he deems necessary, it is of 

no moment if the decedent was mistaken as to whether real estate or income 

taxes apply to the individual shares of the royalties. Since future tax 

adjustments are speculative at this stage, it is premature for the trial court to 

adjust the allotted percentages on its perceived notions regarding potential 

tax consequences. Instead, the three named beneficiaries are entitled to their

plainly delineated percentage of gas and oil royalties as clearly set forth in the 

will. 

Moreover, it was erroneous for the trial court to determine that, without 

dividing the property, Jeanette and Lois would have no enforceable future 

interests in the oil and gas royalties. Upon review of the record, the trial court 

held a hearing on objections to the proposed distribution on November 3, 

2017. Counsel for Appellant stated that Jeanette and Lois have “received 

their specified percentages of the royalties and the signing bonus that was 

received [and that Appellant was] not holding those funds, they’ve been 
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distributed.” N.T., 11/3/2016, at 17. Jeanette and Lois did not dispute their 

receipt of royalties. When the trial court stated its disapproval of Appellant’s 

use of a limited liability company to manage the royalties, counsel for 

Appellant stated that he “certainly would have no objection to doing it through 

a trust.” Id. at 17. The trial court rejected that notion, stating, “the [w]ill 

doesn’t talk about a trust.” Id. The trial court then opined that there “are 

only two options that [] are normally [available in the] distribution of an 

estate[:] leave [the property] in the [e]state or [] make a deed.” Id. We 

conclude this was in error. 

As previously discussed, the plain language of the will states that 

Appellant must share oil and gas royalties with Jeanette and Lois and provide 

them with proof of production sales. The language appears to create a trust. 

See In re Church Of St. James The Less, 888 A.2d 795, 809 (Pa. 2005), 

citing RESTATEMENT (SECOND) OF TRUSTS § 2 (defining trust as “a fiduciary 

relationship with respect to property, subjecting the person by whom the title 

to the property is held to equitable duties to deal with the property for the 

benefit of another person”); In re: Evans' Estate, 93 A.2d 683, 685 (Pa. 

1953) (no special form of terminology is necessary to create a trust, “nor is 

the absence of the word ‘trust’ controlling”). We have previously determined:

if the trustee commits a breach of trust, he is chargeable with (a) 

any loss or depreciation in value of the trust estate resulting from 

the breach of trust; or (b) any profit made by him through the 

breach of trust; or (c) any profit which would have accrued to the 

trust estate if there had been no breach of trust.
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Dentler Family Trust, 873 A.2d 738, 745 (Pa. Super. 2005), quoting

Restatement (Second) of Trusts § 205).

Moreover, a court may impose a constructive trust as an equitable 

remedy to prevent unjust enrichment. See Moreland v. Metrovich, 375 

A.2d 772, 776 (Pa. Super. 1977). The “theory of constructive trusts does not 

require an equity court to find an intention or agreement to create a trust; 

instead, a court may impose a constructive trust as a remedy to prevent the 

unjust enrichment of one party.” Id. Thus, we reject the trial court’s 

suggestion that there were no future equitable remedies available to Jeannette 

and Lois.5 Based upon our review, we discern no ambiguity in the language 

of the will and, therefore, conclude that the trial court erred in finding as such.

Finally, even if, as the trial court found, ambiguities existed in the will, 

the trial court erred in failing to resort to the canons of will construction. A 

court should resort to the canons of will construction where the testator’s 

intent does not appear with reasonable certainty. See Estate of Houston, 

421 A.2d 166, 169 (Pa. 1980). 

We have previously determined:

A life estate is defined as an estate whose duration is limited to 

the life of the party holding it, or some other person. A life estate 

arises when a conveyance or will expressly limits the duration of 

the created estate in terms of the life or lives of one or more 

persons, or when the will or instrument creating the interest, 

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5

 We note, as mentioned above, that Jeannette and Lois are not currently 

complaining that they are not receiving their allotted percentage of the oil and 

gas royalties. We only mention potential avenues of recourse in response to 

the trial court’s determination that none is available. 
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viewed as a whole, manifests the intent of the transferor to create 

an estate measured by the life or lives of one or more persons. 

* * *

[T]he use of any particular phrases or words of art is not required 

in order to create or reserve a life estate.

In re Paxson Trust I, 893 A.2d 99, 115 (Pa. Super. 2006) (internal citations 

and quotations omitted).

Here, the will directs that Appellant receive the property in its entirety 

and manage the oil and gas royalties generated therefrom. Jeanette and Lois 

are entitled to a percentage of those royalties. While the will does not 

specifically state that Jeannette and Lois are to receive “life estates,” there is 

simply no reference to their heirs, assigns, or any future beneficiaries.

6

 

Applying the above-quoted canon of will construction, the trial court should 

have concluded that the conveyances to Jeanette and Lois were measured 

solely in terms of their lifetimes and, therefore, they were entitled only to life 

estates in the oil and gas royalties generated from the subject property. 

Hence, assuming the will was ambiguous, the canons of construction further 

support our interpretation that the decedent intended that Jeanette and Lois 

receive life estates in the oil and gas proceeds.

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6

 In describing the oil and gas royalties, the will states “[t]his is my legacy 

to you all.” The trial court suggests that such language refers to future heirs

of Jeanette and Lois. See Trial Court Statement in Lieu of Opinion, 4/18/2018, 

at 3. However, when read in context, the entire paragraph only addresses 

Appellant, Jeanette, and Lois. Thus, the “legacy” referred to applies only to 

those three named beneficiaries and, the will, read as a whole, supports our 

interpretation that life estates were created in Lois and Jeanette.
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Order vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2018