Theodore D. Pendergrass, was a paraplegic. His wife, Joan Pendergrass held his
power of attorney. After the decedent's death, Mrs. Pendergrass applied for and
received letters testamentary pursuant to a will dated March 25, 2009 and
codicil thereto dated October 17, 2009. The probated will was a joint will for
both the decedent and Mrs. Pendergrass. The codicil, which was also joint,
revoked certain gifts and otherwise ratified the March will. The codicil was
signed by Mrs. Pendergrass as "Joan Pendergrass, agent for T.D.P."
and also by Mrs. Pendergrass as testatrix.
The decedent's son
sought to strike the October codicil for lack of proper execution. The son also
challenged the March will and, in its place, offered a will dated May 24, 2009,
in which he was named the sole beneficiary.
The orphans' court upheld
Mr. Pendergrass' request to set aside the probate of the October 17, 2009
codicil, holding that an agent under a power of attorney does not have the
power to execute a testamentary document on behalf of his principal. The
orphans' court also opined:
assume, for the sake of this argument, that Mr. Pendergrass could not sign his
name or make his mark, that the signing took place in his presence and he
declared the document to be his will in the presence of two witnesses who signed the will. Under these
circumstances, arguendo, if Mrs. Pendergrass had signed the document with just
the initials "T.D.P.," this would meet the requirement that the
testator's name be subscribed to the document. However, Mrs. Pendergrass
clearly identified herself as agent and signed in this capacity. Because she
did so, we can not [sic] say she signed the testator's name as required under Section
Her counsel's arguments that the words "Joan Pendergrass, agent for"
were merely surplusage or were added to ensure that she had "dotted all
the I's and crossed all the t's" are simply not persuasive.
In Estate of Pendergrass, 2011 PA Super 165
(Pa. Super. Ct. 2011) [enhanced
version available to lexis.com subscribers / unenhanced
version available from lexisONE Free Case Law], the court quashed the appeals of
both the son and the wife.
Regarding the son,
the court held that the son lacked appellate standing because:
Pendergrass ultimately was victorious in that the orphans' court agreed and
granted his motion for judgment on the pleadings. While Mr. Pendergrass
contends in his appellate brief that the order should have referenced the March
will and disagrees with the dicta of the orphans' court that initials satisfy
the signature requirement under 20 Pa.C.S.A. § 2502(3), these arguments go
beyond the scope of his motion for judgment on the pleadings.
As for the wife's
appeal, the court held that:
she has appealed in her capacity as Executrix, not individually. Moreover, no
distribution has yet been made under either the March or the May will. Our
Supreme Court has determined that an executor is not a party aggrieved by a
decree deciding an issue between beneficiaries. Herein, the decedent's estate
has not been aggrieved by the probate of any will.
. . . .
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