Estate of Simmons-Carton, In re

• Decision Date: 12 July 1994
• Docket Number: SIMMONS-CARTON,SIMMONS-CARTO,M
• Citation: 644 A.2d 791,434 Pa.Super. 641
• Parties: In re ESTATE OF Theodora H.D.a/k/a Theodora Helena D. Carton a/k/a Dory Simmons, Deceased. Appeal of Mirjamother, Appellant.
• Court: Pennsylvania Superior Court

Page 791

644 A.2d 791

434 Pa.Super. 641

In re ESTATE OF Theodora H.D. SIMMONS-CARTON a/k/a Theodora Helena D. Carton a/k/a Dory Simmons, Deceased Appeal of Mirjam SIMMONS-CARTON, Mother, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 5, 1994.

Filed July 12, 1994.

F. Curtis Davis, Jr., Philadelphia, for appellant.

Laurence I. Tomar, Langhorne-Newton, for appellee.

Before KELLY, FORD ELLIOTT and BROSKY, JJ.

FORD ELLIOTT, Judge:

This is an appeal from the June 18, 1993 order of the Court of Common Pleas of Bucks County which reversed the decision of the Register of Wills to revoke Letters of Administration previously granted to appellant, Mirjam Simmons-Carton, and appellee, Donald Simmons.

This case involves the tragic death of Theodora "Dory" Simmons on December 24, 1988 in an automobile accident. Dory was twenty-three years old at the time. At issue is whether Dory's mother, Mirjam Simmons-Carton, and her alleged father, Donald Simmons, should both be named as co-administrators of Dory's estate. Dory died intestate. Her estate consists primarily of potential assets from pending wrongful death actions.

Before addressing the merits of this appeal, an understanding of the factual and procedural history of this matter is necessary. As much of the factual history is disputed by Mirjam and Donald, the trial court in its opinion dated June 18, 1993, recites both Mirjam's and Donald's version of the facts. We adopt that portion of the trial court opinion for purposes of this review.

Mirjam Simmons testified that she was the mother of the decedent who was born on January 3, 1965 in the Netherlands. She further testified that she had met Donald Simmons the spring of 1963 and had a relationship with him until around Christmas time of that year. She denied access with Simmons in the spring of 1964 and did not see him again until October of 1964 when she was already pregnant. (3/3/92 N.T. 12) However, later in her testimony she acknowledged that she may have seen Donald 'in the neighborhood' sometime in the spring of 1964. (3/3/92 N.T. 17)

Ms. Simmons then testified that she believed she was made pregnant by a person other than Donald Simmons with whom she had a brief relationship in the spring of 1964. In the course of this testimony, she refused to name the alleged father 'as matter of principle'. (3/3/92 N.T. 17, 18) She claimed it was because of this principle that no person was named as the father on the decedent's birth certificate.

Sometime in 1965 Donald Simmons returned to the United States and early in 1966 Mirjam Simmons came with her daughter for a visit. She returned to the Netherlands for a brief time, came back to the United States in November 1966 and she married Donald Simmons, assuming the name Mrs. Mirjam Simmons. Her daughter's name remained Theodora Carton. The parties subsequently had a child David Simmons.

Further testimony from Ms. Simmons included allegations that Donald Simmons had agreed to adopt Theodora, in order to permit her to become a United States citizen. The adoption did not take place, though she testified that the issue arose every couple of years when questions concerning the name difference arose. In one instance, Ms. Simmons changed the name on a copy of the birth certificate so as to make it appear that Theodora's last name was Simmons. (3/3/92 N.T. 22)

Until the parties separated in 1987, they lived together as a family unit consisting of the parties and the two children, Theodora and David. In 1987, Theodora was a student at American University, for which Donald Simmons had paid at least two years of tuition. (3/3/92 N.T. 108).^* Ms. Simmons agreed that during Theodora's first 18 years Donald Simmons provided the primary support for the family. (3/3/92 N.T. 107)

Upon Theodora's death, a death certificate was issued in which Donald L. Simmons' name appears as father and Mirjam Simmons as the informant. Ms. Simmons testified that the information was not given by her, but by an attorney acting on behalf of both her and Donald Simmons. Thereafter, an amended certificate of death was issued at her request eliminating the name of Donald L. Simmons as the father. (Exhibit P-3 and P-4)

From further testimony by the mother and Donald Simmons, it has become apparent that he was reluctant and withheld proceeding to an adoption. He testified that he saw no reason to do so in view of the fact that he was Theodora's father. We conclude from an examination of the testimony of both parties that the name of a father would not appear on a birth certificate issued in the Netherlands, unless he was married to the mother. This accounts for the designation of Ms. Simmons' father as a guardian for the child born out of wedlock.

Mr. Simmons' testimony was that upon the mother's return from her stay in England in December of 1963, the parties continued to 'live together' through early 1964 up to the time that the child was born. He testified that although he had a small room in a friend's apartment, the mother was living a short distance away and that, for all intents and purposes, he was sharing her apartment with her. This includes the significant period of time when conception would have occurred, during which period Ms. Simmons says she 'may have' seen Donald in the neighborhood. This is clearly not significant evidence of non-access.

On cross-examination, Ms. Simmons acknowledged that the relationship had started a couple of years prior to the conception of the child; that soon after Theodora was born the parties continued to live together. Ultimately, the mother brought the child to the United States, the parties were married to one another and for twenty years Donald Simmons treated Theodora as one of his children. It was not refuted that he supported her, including a substantial period of time when Ms. Simmons did not work outside the home. He continued to support Theodora for two or three years that she was in college up to the time that he left the marital home.

Further, on cross-examination, Ms. Simmons acknowledged that she never once said to Mr. Simmons that some other person was Theodora's father. (N.T. 103, 1. 9 et seq.)

Although Simmons acknowledged that he did not see the birth certificate, it is apparent that he knew that his name did not appear as the father. This explains the need for a 'change of name' in order to establish citizenship for Theodora. This was established by the attorney and longtime friend of the parties who testified to discussions with Ms. Simmons with regard to accomplishing the appropriate correction of documents for application for Theodora's citizenship.

The death certificate and obituaries were supplied from information given at a time when Donald Simmons was not available by reason of his separation from Ms. Simmons and the fact that he was then living in St. Croix. These documents referred to Donald Simmons as Theodora's father. It was only after this litigation that through counsel, Ms. Simmons arranged to have the death certificate amended deleting the reference to Donald Simmons as Theodora's father.

Trial court opinion, 6/18/93 at 3-7.

Letters of administration were first issued to Mirjam several days after the death of Dory. A short time later, Donald was added as a co-administrator. Upon learning that a co-administrator had been appointed, Mirjam petitioned the Register of Wills to remove Donald on the basis that he was not the father of Dory, and therefore not entitled to administer the estate. The Register of Wills conducted two days of hearings on March 3, 1992, and April 3, 1992. On September 11, 1992, an opinion was issued by the Register of Wills revoking the letters of administration previously granted to Mirjam and Donald. On October 22, 1992, letters were issued solely to Mirjam. Donald appealed to the Orphans' Court Division of the Court of Common Pleas of Bucks County. The Orphans' Court determined that the extent of its review was limited to whether the Register of Wills had abused her discretion. After its review of the record made by the Register of Wills, the court found the Register had abused her discretion and as a result was compelled to reverse and vacate the decision. The court reinstated the letters previously granted to Mirjam and Donald. This timely appeal taken by Mirjam Simmons-Carton followed.

Mirjam first contends that the Orphans' Court erred in reversing the decision of the Register of Wills. Mirjam's argument consists of two subparts. First, Mirjam claims that the Register of Wills has the exclusive authority and responsibility to issue letters of administration, and the scope of review of the Orphans' Court, on appeal, is limited strictly to the question of whether the Register abused her discretion. Second, Mirjam argues that the Register of Wills properly exercised judicial discretion in receiving the evidence and rendering an opinion rejecting the claim of Donald and appointing her, the mother of the decedent, as the sole administratrix of the estate.

In response to Mirjam's first sub-issue, we begin by setting out the jurisdiction of both the Orphans' Court and Register of Wills. Turning to Title 20, Decedents, Estates and Fiduciaries, of the Pennsylvania Consolidated Statutes Annotated, Section 711 governs the mandatory exercise of jurisdiction through Orphans' Court in general. It provides, in relevant part:

[T]he jurisdiction of the court of common pleas over the following shall be exercised through its orphans' court division:

....

(12) Fiduciaries. The appointment, control, settlement of the accounts of, removal and discharge of, and allowance to and allocation of compensation among, all fiduciaries of estates and trusts, jurisdiction of which is exercised through the orphans' court division, except that the register shall continue to grant letters testamentary and of administration to personal representatives as heretofore.

20 Pa.C.S.A. § 711(12).

Section 901 sets...