`
`[J-26-2017]
`IN THE SUPREME COURT OF PENNSYLVANIA
`WESTERN DISTRICT
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`SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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`
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`IN RE: ESTATE OF ALFRED E. PLANCE,
`JR., DECEASED
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`APPEAL OF: JOY PLANCE
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`No. 25 WAP 2016
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`Appeal from the Order of the Superior
`Court entered December 8, 2015, at No.
`1379 WDA 2014, reversing the Order of
`the Court of Common Pleas of Beaver
`County entered July 22, 2014, at No.
`04-13-00855 and remanding.
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`ARGUED: April 4, 2017
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`JUSTICE WECHT
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`OPINION
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`DECIDED: DECEMBER 19, 2017
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`We granted allowance of appeal to determine rightful title to a parcel of real
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`property claimed by competing grantees, each of whom invokes a real or purported
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`conveyance from the property’s owner. We granted review to consider as well the
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`application of res judicata and collateral estoppel during estate administration
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`proceedings with regard to an earlier order of the Orphans’ Court determining the
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`validity of a will.
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`Relying upon a presumption that valid delivery of a deed occurs on the date of its
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`execution and acknowledgment, the Superior Court held that title to the real estate
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`vested in the grantee of the earlier, unrecorded instrument. The Superior Court further
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`held that, where the Orphans’ Court determined that a will was valid and permitted a
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`photocopy of that will to be probated, a participating party’s subsequent claim that the
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`will was revoked is barred by the doctrines of res judicata and collateral estoppel.
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`After review, we reverse the order of the Superior Court, and we remand for
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`further proceedings consistent with this Opinion.
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`I.
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`Background1
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`Alfred E. Plance, Jr. (“Alfred”), owned a 146-acre farm, which straddles the
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`boundary between Beaver and Washington Counties. Following the death of his first
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`wife in 1990, Alfred became the sole owner of the farm as a surviving tenant by the
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`entireties. Alfred and his first wife had three sons, Timothy Plance (“Timothy”),
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`Christopher Plance (“Christopher”), and Steven Plance (“Steven”). Alfred remarried in
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`1994, and his new wife, Joy Plance (“Joy”), began residing with him on his farm. Joy
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`sold her former residence. She used $34,000.00 of the proceeds, as well as
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`$40,000.00 borrowed from her father, to construct a horse boarding stable on the farm.
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`Alfred and Joy operated the stable together until 2011 or 2012, when their declining
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`health made its continued operation impractical.
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`On August 20, 2004, Alfred executed two land trust agreements, creating two
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`trusts for the purpose of holding title to the farm—one trust for the portion of the farm
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`situated in Beaver County and the other for the portion situated in Washington County.
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`Alfred named himself as trustee of the trusts, and designated himself and Timothy as
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`the beneficiaries. On the same day, Alfred executed and acknowledged2 two deeds
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`(“2004 Deeds”), one corresponding to each trust, conveying the associated portions of
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`1
`While the underlying facts largely are undisputed, the following account derives
`from those found by the Orphans’ Court, to which we afford great deference in the
`determinations of fact, credibility, and the resolution of any conflicts in testimony. See
`Adoption of S. H., 383 A.2d 529, 530 (Pa. 1978).
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`2
`As used herein, “acknowledgment” refers to “[a] formal declaration made in the
`presence of an authorized officer, such as a notary public, by someone who signs a
`document and confirms that the signature is authentic.” Acknowledgment, BLACK’S LAW
`DICTIONARY 27 (10th ed. 2014).
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`[J-26-2017] - 2
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`the farm from himself as the grantor (in his personal capacity) to himself as the grantee
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`(in his capacity as trustee). The trust documents and deeds were prepared and
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`notarized by Lawrence Bolind, Esquire. Although it was Attorney Bolind’s ordinary and
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`customary practice to record deeds for his clients after their execution, he did not record
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`the 2004 Deeds. See Notes of Testimony (“N.T.”), 5/20/2014, at 15.3 Alfred retained
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`the 2004 Deeds, but never recorded them.
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`On April 26, 2006, Alfred executed two deeds (“2006 Deeds”) conveying the
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`entirety of the farm to himself and Joy as tenants by the entireties. Alfred executed
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`these deeds as the grantor in his individual capacity, not as the trustee of the land trusts
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`that he had established nearly two years earlier. The 2006 Deeds were recorded
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`promptly in both Beaver and Washington Counties.
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`In early 2012, Alfred and Joy were approached by Range Resources-Appalachia
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`LLC (“Range Resources”), which sought to obtain an oil, gas, and coalbed methane
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`lease with respect to the farm. Alfred and Joy executed the lease and, in exchange,
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`Range Resources issued a check in the amount of $439,650.00, payable to both Alfred
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`and Joy as tenants by the entireties and owners of the fee simple title.
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`In the spring of 2012, Alfred was hospitalized for an autoimmune condition.
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`Upon his release, Timothy and Timothy’s wife, Shawnna, arranged for Alfred to meet
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`their attorney, Michael Werner, Esquire, so that Alfred could review and revise his
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`estate plan. Timothy and Shawnna accompanied Alfred to his appointment with
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`Attorney Werner. Alfred provided Attorney Werner with the signed and notarized
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`3
`Attorney Bolind later testified that, although he recognized the documents to be
`his work product, he had no recollection of his relationship with Alfred and no memory of
`performing legal services on Alfred’s behalf. See N.T., 5/20/2014, at 6-7. Attorney
`Bolind further explained that he had no notes or records of his meeting with Alfred
`because his office, computers, and files were damaged by flooding from Hurricane Ivan
`in September 2004. Id. at 8.
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`[J-26-2017] - 3
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`originals of the land trust agreements and the unrecorded 2004 Deeds, as well as the
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`recorded 2006 Deeds. Alfred also told Attorney Werner that he was concerned about
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`the disposition of the Range Resources check. The check had been mailed to the farm
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`while Alfred was in the hospital, and, due to problems in his relationship with Joy, Alfred
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`was concerned about his ability to access the funds. Attorney Werner, concluding that
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`the 2004 Deeds had transferred title to the farm into the trusts, advised Alfred to contact
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`Range Resources and to request a “stop payment” order on the check because the
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`payees named on the check—Alfred and Joy as tenants by the entireties—were not the
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`true owners of the farm. Attorney Werner further advised Alfred to record the 2004
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`Deeds, but cautioned that doing so “would open up a very large can of worms from
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`which it would be very difficult to turn back.” N.T., 5/19/2014, at 42. Despite Attorney
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`Werner’s advice, Alfred never recorded the 2004 Deeds.
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`Based upon his discussion with Alfred, Attorney Werner prepared a new will and
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`other estate planning documents for Alfred. Attorney Werner met with Alfred, again
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`accompanied by Shawnna, to execute these documents on May 24, 2012. Alfred’s new
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`will included $1,000.00 bequests to each of his sons and gave the residue to Timothy,
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`or to Christopher in the event that Timothy predeceased Christopher. Although the will
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`acknowledged Joy as Alfred’s wife, it made no provision for Joy. Alfred named Timothy
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`as his executor. After Alfred executed the will, he gave the original to Shawnna.
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`Shawnna placed the will, along with other documents from the earlier meeting with
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`Attorney Werner, into a plastic file box, which she kept in her home until early August
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`2012.
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`After the execution of Alfred’s estate planning documents, Attorney Werner
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`received several telephone calls from Alfred and Shawnna, giving him conflicting
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`instructions with regard to the Range Resources check and the 2004 Deeds. Shawnna
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`[J-26-2017] - 4
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`called Attorney Werner in late June 2012 and told him not to record the 2004 Deeds and
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`not to request a stop payment order on the check. Six days later, Shawnna called again
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`and instructed Attorney Werner to proceed with the stop payment order. Alfred left
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`Attorney Werner two messages, first asking him to contact Range Resources and then
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`instructing him not to contact Range Resources. Finally, on July 9, 2012, Attorney
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`Werner called Alfred, and Alfred told him not to proceed with either the stop payment
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`order or the recordation of the 2004 Deeds. Alfred requested that Attorney Werner
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`return all of the documents in his possession, both originals and copies. That same
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`day, Attorney Werner complied with Alfred’s request, mailed all of the documents in his
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`possession to Alfred, and took no further action with regard to the Range Resources
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`check or the 2004 Deeds.
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`According to Timothy, Alfred and Shawnna had a “falling out” in early August
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`2012. N.T., 5/19/2014, at 106-07. At that time, Alfred asked Shawnna for all of the
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`documents in her possession, and she provided him with the plastic box containing his
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`will and other estate planning documents. Joy later explained that, one day in August or
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`September 2012, Alfred entered their residence carrying a plastic box. He told Joy that
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`he had a conflict with Timothy and Shawnna, and that he would not communicate with
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`them in the future. Joy did not know what the plastic box contained, but she observed
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`Alfred taking the box outside to a trash burner and burning its contents. Although
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`Shawnna and Attorney Werner retained copies of Alfred’s will, none of Alfred’s original
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`documents ever were discovered.
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`Alfred died in March 2013. Unable to locate Alfred’s original will, which was last
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`seen in the plastic box, Timothy filed a petition to probate a photocopy of the will. Joy
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`did not file a response, but she retained counsel, who appeared before the Orphans’
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`[J-26-2017] - 5
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`Court to object to Timothy’s petition. After a hearing, which was not transcribed, the
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`Orphans’ Court entered the following order:
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`AND NOW, this 27th day of August, 2013[,] it appearing that the original of
`the testator’s Last Will and Testament has been lost and misplaced and
`that the testator has not destroyed the original with the intention of
`revocation, it [is] hereby ORDERED, ADJUDGED AND DECREED that
`the probate is granted using the photocopy of the Last Will and
`Testament.
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`Order, 8/27/2013. Despite the Orphans’ Court’s determination that Alfred’s will
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`remained valid, the court apparently intended that its order would not preclude Joy from
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`challenging the will at a later time. Although no transcript of the proceeding exists, the
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`Orphans’ Court later noted in its Pa.R.A.P. 1925(a) opinion that “the parties agreed that
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`the court did indicate in motions court on August 27, 2013 when the photocopy was
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`admitted, that the will itself could still be challenged or contested.” Orph. Ct. Op.,
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`10/28/2014, at 2. Joy did not appeal the Orphans’ Court’s order admitting the
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`photocopy of Alfred’s will to probate.
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`Timothy was granted Letters Testamentary on October 2, 2013. On November
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`21, 2013, Timothy filed a petition with the Orphans’ Court, alleging that Joy had
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`dissipated property belonging to the estate, including gold coins with a value of
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`approximately $100,000.00 and a large portion of the funds from the Range Resources
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`check. Timothy averred that Joy’s actions had rendered him unable to administer
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`Alfred’s estate, and that Joy should be ordered to refrain from further dissipating any
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`estate property, to account for any property previously dissipated, to return or reimburse
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`the estate for any such property, and to allow Timothy to access and inventory any
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`remaining estate property.
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`Joy filed a response to Timothy’s petition on December 12, 2013, denying that
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`she had dissipated property belonging to the estate. In new matter, Joy asserted that
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`[J-26-2017] - 6
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`Alfred had revoked his will by burning it and, as such, had died intestate. Joy further
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`asserted ownership of the farm as a surviving tenant by the entireties pursuant to the
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`2006 Deeds. Timothy responded to Joy’s new matter, averring that the issue of the
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`validity of Alfred’s will already had been litigated and decided when the Orphans’ Court
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`issued its order admitting the photocopy of Alfred’s will to probate on August 27, 2013.
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`Thus, Timothy argued, Joy’s claim was barred by the doctrines of res judicata and
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`collateral estoppel. With regard to the ownership of the farm, Timothy claimed that the
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`2004 Deeds effectively transferred title to the farm into the trusts, and that the 2006
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`Deeds were, therefore, void ab initio.
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`Following discovery, the parties proceeded to trial before the Orphans’ Court on
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`May 19 and 20, 2014. On July 22, 2014, the Orphans’ Court issued a memorandum
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`and decree, holding that Joy “possesses the superior title” to the farm, that its August
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`27, 2013 order admitting the photocopy of Alfred’s will to probate “was improvidently
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`entered and is hereby revoked,” and that Alfred died intestate. Decree, 7/22/2014. The
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`Orphans’ Court reasoned that Alfred never intended the 2004 Deeds to be an effective
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`conveyance and, thus, did not deliver the deeds.4 The court concluded that Joy owned
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`the farm as a surviving tenant by the entireties pursuant to the 2006 Deeds. With
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`regard to res judicata and collateral estoppel, the Orphans’ Court concluded that the
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`doctrines did not preclude Joy’s challenge to Alfred’s will because, at the time of the
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`August 27, 2013 order, the court intended to allow Joy to proceed with such a challenge
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`at a later date. The court further noted that, before it entered the order authorizing
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`probate of the photocopy of Alfred’s will, “[t]here was not a hearing convened, no
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`4
`As discussed in detail, infra, delivery of a deed is essential to a valid conveyance,
`and is a matter of the grantor’s intent to pass title to the property to the grantee. See,
`e.g., Stiegelmann v. Ackman, 41 A.2d 679, 681 (Pa. 1945); Lewis v. Merryman, 114 A.
`655, 655 (Pa. 1921).
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`[J-26-2017] - 7
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`evidence was presented and [Joy] was not afforded due process.” Orph. Ct. Op.,
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`10/28/2014, at 2. Accordingly, the Orphans’ Court opined that neither res judicata nor
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`collateral estoppel prevented it from considering Joy’s claim that Alfred revoked his will.
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`Having credited Joy’s evidence, the Orphans’ Court concluded that it should not have
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`authorized probate of the photocopy because Alfred revoked his will and, thus, died
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`intestate. The court directed the Register of Wills to remove Timothy as the executor of
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`Alfred’s estate. Timothy appealed the Orphans’ Court’s decree to the Superior Court.
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`On appeal, Timothy argued that Alfred’s execution and acknowledgment of the
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`2004 Deeds was sufficient to constitute delivery of those deeds and to demonstrate his
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`intent to convey the farm to the trusts, that the 2006 Deeds accordingly were void, and
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`that the doctrines of res judicata and collateral estoppel precluded Joy from challenging
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`the validity of Alfred’s will. In response, Joy argued that Alfred never delivered the 2004
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`Deeds, that she possessed superior title to the farm as a surviving tenant by the
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`entireties pursuant to the recorded 2006 Deeds, that she was a bona fide purchaser of
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`the farm protected by Pennsylvania’s recording statutes,5 and that neither res judicata
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`5
`21 P.S. § 351 provides that all deeds shall be recorded in the county in which the
`subject land is situated, and that a deed “shall be adjudged fraudulent and void as to
`any subsequent bona fide purchaser . . . without actual or constructive notice unless
`such deed . . . shall be recorded, as aforesaid, before
`the recording of
`the
`deed . . . under which such subsequent purchaser . . . shall claim.” 21 P.S. § 351. This
`is commonly known as a “race-notice” statute, a “recording law providing that the
`person who records first, without notice of prior unrecorded claims, has priority.” Race-
`notice statute, BLACK’S LAW DICTIONARY 1448 (10th ed. 2014). Joy also cited 21 P.S.
`§ 444, titled “All deeds made in the state to be acknowledged and recorded within ninety
`days.” Omitting any reference to a “bona fide purchaser,” Section 444 provides that a
`deed remaining unrecorded for more than ninety days after its execution “shall be
`adjudged fraudulent and void against any subsequent purchaser or mortgagee for a
`valid consideration . . . .” 21 P.S. § 444 (emphasis added). Despite the slight variation
`in the descriptions of the subsequent purchaser contemplated by the statutes, this Court
`has explained that, with regard to both Section 351 and Section 444, “[t]o bring one
`within the protection of the statutes it must be shown that one has the status of a bona
`fide purchaser.” Wheatcroft v. Albert Co., 180 A.2d 216, 219 (Pa. 1962).
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`[J-26-2017] - 8
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`nor collateral estoppel applied to her challenge to the validity of Alfred’s will because the
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`Orphans’ Court’s earlier order was not final, but was part of the ongoing litigation.
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`The Superior Court reversed the decree of the Orphans’ Court. See In re Estate
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`of Plance, 1379 WDA 2014 (Pa. Super. Dec. 8, 2015) (unpublished). Regarding the
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`effectiveness of the 2004 Deeds, the Superior Court noted that, although the recording
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`of a deed raises a presumption of its validity, recording is not essential to a conveyance;
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`rather, title to real estate may be passed by valid delivery of a deed, which is a question
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`of the grantor’s intent. Id., slip op. at 9 (citing, inter alia, City Stores Co. v. Philadelphia,
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`103 A.2d 664, 666 (Pa. 1954), and Stiegelmann v. Ackman, 41 A.2d 679, 681 (Pa.
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`1945)). Thus, although the 2004 Deeds never were recorded, the Superior Court
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`recognized that the 2004 Deeds nevertheless would have been effective to transfer title
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`to the farm into the trusts if Alfred effectuated a valid delivery of those deeds. The
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`Superior Court noted that it is a “general rule that there is a presumption, [in] the
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`absence of proof to the contrary, that a deed was executed and delivered on the day it
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`was acknowledged.” Id. (alteration in original) (quoting Herr v. Bard, 50 A.2d 280, 281-
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`82 (Pa. 1947)).
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`The court reasoned that the Orphans’ Court had placed undue weight upon
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`Alfred’s failure to record the 2004 Deeds, which was not dispositive. Rather, the
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`Superior Court observed that Alfred, “as grantor, executed, acknowledged and delivered
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`the deeds to himself, as trustee/grantee of the two trusts he executed that same day.”
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`Id. at 10. Pursuant to the rebuttable presumption identified in Herr, the Superior Court
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`reasoned that Alfred’s execution and acknowledgment of the 2004 Deeds, as well as his
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`possession of the 2004 Deeds in his capacity as the grantee, was sufficient to constitute
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`delivery and to convey the farm to the trusts. The court concluded that “Joy presented
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`no evidence to rebut the presumption that, at the time [Alfred] executed and
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`acknowledged the deeds and delivered them to himself as trustee, he intended to
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`transfer ownership of the Farm to the trusts.” Id.
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`Importantly, the Superior Court noted that Alfred was both the grantor and the
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`grantee of the 2004 Deeds, which distinguished this case from the precedents upon
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`which Joy relied. Although a grantor generally must transfer control over a deed in
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`order to effectuate delivery to the grantee, the Superior Court held that, due to Alfred’s
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`dual capacities, “indicia of delivery such as ‘relinquishment of control,’ or delivery to a
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`third party with instructions to pass on to the grantee, are not relevant to our analysis.”
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`Id. (citations omitted).
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`The Superior Court further rejected Joy’s assertion that, even if the 2004 Deeds
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`were valid, her interest in the farm was protected under the recording statutes due to
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`her status as a bona fide purchaser. To that end, Joy averred that she had paid valid
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`consideration for the farm through her investment in the horse boarding stable, and that
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`consideration also may be found in the “natural love and affection between spouses.”
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`Id. at 12 (quoting Superior Court Brief of Joy at 13). The Superior Court noted that,
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`under its precedent, a grantee of land qualifies as a bona fide purchaser if she was “(1)
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`without notice of an adverse interest and (2) gave value for the purchase of the land.”
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`Id. (citing Roberts v. Estate of Pursley, 718 A.2d 837, 841 (Pa. Super. 1998)). Joy was
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`not a bona fide purchaser, the court reasoned, because there was no indication that she
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`paid valid consideration to Alfred at the time of the 2006 deeds, and Joy had neither
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`argued nor demonstrated that Alfred accepted her earlier investment in the property as
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`past consideration. Rather, the deeds recited only nominal consideration in the amount
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`of one dollar.6 The Superior Court concluded that, at the time that Alfred executed the
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`6
`Quoting this Court’s observation in Dohan v. Yearicks, 98 A. 611 (Pa. 1916), the
`Superior Court explained:
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`(continued…)
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`[J-26-2017] - 10
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`2006 Deeds, he “simply attempted to make a gift of an undivided one-half interest [in]
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`the property to Joy.” Id. at 13. The court held that, as merely the intended recipient of a
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`gift, and not a bona fide purchaser, Joy was not protected under the recording statutes,
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`and could not establish superior title to the farm.
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`Finally, the Superior Court addressed Timothy’s arguments regarding res
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`judicata and collateral estoppel. Timothy contended that, under both theories, Joy’s
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`claim that Alfred had revoked his will was precluded because the Orphans’ Court
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`previously had resolved that issue when it entered its August 27, 2013 order admitting
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`the photocopy of Alfred’s will to probate. The Superior Court agreed.
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`First considering the doctrine of res judicata, the Superior Court noted that the
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`doctrine bars litigation of “claims that were or could have been raised in a prior action
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`which resulted in a final judgment on the merits, so long as the claims derive from the
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`same cause of action.” Id. at 14 (citing Balent v. City of Wilkes-Barre, 669 A.2d 309,
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`315 (Pa. 1955)). The Superior Court reasoned that the earlier action was Timothy’s
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`petition to admit the photocopy of Alfred’s will to probate, which necessarily placed the
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`validity of Alfred’s will at issue. That action resulted in the Orphans’ Court’s August 27,
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`(…continued)
`The expression of a nominal consideration in a deed is resorted to by
`conveyancers to avoid the inconvenience of setting forth the real
`consideration when that is difficult to set forth briefly, or of a private nature,
`and to comply with a usage that arose because a deed of bargain and
`sale, under the statute of uses, originally operated merely to create a
`resulting
`trust
`for
`the grantor, unless supported by a valuable
`consideration, which, it was formerly held, must be a pecuniary one. It is
`well known that the nominal consideration of one dollar is regarded by all
`as having served its purpose by its mere mention in the instrument and
`that it almost never changes hands[.]
`
`Plance, 1379 WDA 2014, slip op. at 13 n.3 (alteration in original) (quoting Dohan, 98 A.
`at 611).
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`2013 order, which found that Alfred had not “destroyed the original [will] with the
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`intention of revocation.” Id. at 15-16 (alteration in original) (quoting Order, 8/27/2013).
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`The Superior Court noted that Joy did not appeal that order, “and, thus, it became a
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`final order.” Id. at 16. The court concluded that Joy’s claim met the four requirements
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`of res judicata: “(1) an identity in the thing sued upon[;] (2) identity in the cause of
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`action[;] (3) identity of persons and parties to the action[;] and (4) identity of the capacity
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`of the parties suing or sued.” Id. at 14 (citing In re Jones & Laughlin Steel Corp., 477
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`A.2d 527, 530-31 (Pa. Super. 1984)); see also Daley v. A.W. Chesterton, Inc., 37 A.3d
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`1175, 1189–90 (Pa. 2012). Because the claim revisited the issue of whether Alfred
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`revoked his will, the thing sued upon and the cause of action were the same. The
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`parties were the same, as were their capacities. The Superior Court observed that Joy
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`had opportunities to raise the revocation issue, but failed to do so. Thus, the court held
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`that “there was a final judgment entered on the merits by a court of competent
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`jurisdiction and Joy was barred by the doctrine of res judicata from relitigating the same
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`cause of action in a subsequent suit.” Id. at 16.
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`
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`Although it concluded that the Orphans’ Court erred based upon res judicata, the
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`Superior Court proceeded to address Timothy’s claim regarding collateral estoppel.
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`The court related that the doctrine of collateral estoppel precludes the litigation of an
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`issue where:
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`(1) the issue decided in the prior case is identical to one presented in the
`later case; (2) there was a final judgment on the merits; (3) the party
`against whom the plea is asserted was a party or in privity with a party in
`the prior case; (4) the party or person privy to the party against whom the
`doctrine is asserted had a full and fair opportunity to litigate the issue in
`the prior proceeding[;] and (5) the determination in the prior proceeding
`was essential to the judgment.
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`Id. at 17 (quoting Radakovich v. Radakovich, 846 A.2d 709, 715 (Pa. Super. 2004)); see
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`also Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490, 511 n.30 (Pa. 2016)
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`cert. denied, 137 S.Ct. 1375 (2017). Relying upon its previous discussion of res
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`judicata, the Superior Court similarly concluded that the issue of the validity of Alfred’s
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`will was before the Orphans’ Court in both actions, that the parties were identical, that
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`each had a full and fair opportunity to litigate the issue, and that the earlier action
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`resulted in a final judgment on the merits, which was essential to the judgment reflected
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`in the Orphans’ Court’s August 27, 2013 order. Accordingly, the Superior Court
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`concluded that Joy’s assertion that Alfred revoked his will also was barred under the
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`doctrine of collateral estoppel, and that the Orphans’ Court “erred in revisiting the
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`issue.” Id.
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`Having ruled in favor of Timothy in all respects, the Superior Court reversed the
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`decree of the Orphans’ Court and remanded the case to that court. Joy filed a petition
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`for allowance of appeal with this Court, which we granted in order to review the Superior
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`Court’s determinations regarding the rightful ownership of the farm vis-à-vis the
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`effectiveness of the 2004 Deeds and Joy’s status under the recording statutes, as well
`
`as the Superior Court’s application of the doctrines of res judicata and collateral
`
`estoppel.7
`
`
`7
`We granted allowance of appeal on the following issues, which we rephrased for
`clarity:
`
`(1) When a property owner purports to transfer land to a trust, names
`himself as trustee, and retains possession of the deed, what is required to
`deliver the deed and effectuate the conveyance to the trust, and what
`party bears the burden of proving that the deed was executed and
`delivered?
`
`(2) If a property owner effectively conveys land to trust for which he also
`serves as trustee, and he does not record the deed and retains
`possession of it, how does the recording statute apply to the property
`(continued…)
`
`
`[J-26-2017] - 13
`
`

`

`
`
`II.
`
`Analysis
`
`
`
`
`
`Preliminarily, we set forth our well-settled standard of review. “In reviewing the
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`decision of the orphans’ court, this Court’s responsibility is to assure that the record is
`
`free from legal error and to determine if the orphans’ court’s findings are supported by
`
`competent and adequate evidence.” In re Klein’s Estate, 378 A.2d 1182, 1187 (Pa.
`
`1977). “In determining whether the findings of the orphans’ court are supported by
`
`competent evidence, we must take as true all the evidence supporting the findings and
`
`all reasonable inferences therefrom.” In re William L., 383 A.2d 1228, 1237 n.12 (Pa.
`
`1978). “Further, all conflicts in testimony must be resolved by the hearing judge, who is
`
`the sole arbitrator of credibility.” In re C. A. W., 409 A.2d 16, 18 (Pa. 1979). “Findings
`
`of the orphans’ court supported by evidence of record are entitled to the same weight
`
`given a jury verdict and must be sustained unless the court abused its discretion or
`
`committed an error of law.” William L., 383 A.2d at 1237.
`
`
`
`
`
`A. Delivery of the 2004 Deeds
`
`Before discussing and analyzing the parties’ arguments, it is helpful to
`
`summarize the general precepts of law relating to the “delivery” of deeds. Delivery of a
`
`deed is “necessary to render it legally operative.” Stiegelmann, 41 A.2d at 681. “The
`
`
`(…continued)
`owner’s subsequent conveyance of the land, in his individual capacity, to
`himself and his spouse as tenants by the entireties, when the latter deed
`is duly recorded and the spouse had no notice of the prior conveyance to
`the trust, but paid only nominal consideration?
`
`(3) When the Orphans’ Court grants a petition to probate a photocopy of a
`will, and an opposing party did not respond to the petition or appeal the
`Orphans’ Court’s order, but raises a claim regarding the will’s revocation
`as new matter in a responsive pleading during the estate’s administration,
`is the claim barred by the doctrine of res judicata or collateral estoppel?
`
`In re Estate of Plance, 144 A.3d 92 (Pa. 2016) (per curiam).
`
`
`[J-26-2017] - 14
`
`

`

`
`
`general principle of law is that the formal act of signing, sealing, and delivering is the
`
`consummation of the deed . . . .” In re Cragin’s Estate, 117 A. 445, 446 (Pa. 1922).
`
`Delivery of a deed turns upon the grantor’s intent to convey title to the grantee. Such
`
`delivery may be found where the grantor’s words or actions reflect that essential intent.
`
`Stiegelmann, 41 A.2d at 681 (“Delivery is to be inferred from the words and acts of a
`
`grantor evidencing an intention on his part to surrender his title to the property
`
`(embraced by his conveyance) and to invest his grantee therewith. Such an intent,
`
`accompanied by actions or words sufficient to effectuate it, spells delivery.”); Chambley
`
`v. Rumbaugh, 5 A.2d 171, 172 (Pa. 1939) (“Whether there was a delivery in fact in any
`
`given case depends upon the intention of the grantor as shown by his words and
`
`actions and by the circumstances surrounding the transaction, and constitutes a
`
`question to be determined from all the evidence by the [fact-finder].”); Lewis v.
`
`Merryman, 114 A. 655, 655 (Pa. 1921) (“Delivery is a matter of intention to pass title. It
`
`may be accomplished by words alone, by acts, or by words and acts. To be sufficient in
`
`law it must be found [that the] grantor has parted with the title.”). So long as a grantor
`
`expresses the intention to convey the property, the grantor need not physically hand the
`
`deed to the grantee to complete the delivery. “While ‘the crowning fact’ in the execution
`
`of a deed is delivery, yet it is not necessary to prove ‘actual manual investiture,’ since
`
`‘delivery may be inferred or presumed from circumstances.’” Kanawell v. Miller, 104 A.
`
`861, 862 (Pa. 1918) (citation omitted). “[N]o particular form or ceremony is necessary to
`
`effect delivery; it is sufficient if the grantor evidences his intention in any manner to put
`
`the document into the ownership of the other party and thereby to relinquish all control
`
`of it thereafter.” City Stores Co., 103 A.2d at 666.8
`
`
`8
`The delivery requirement finds its origin in the ancient practice of “livery of
`seisin,” the “ceremony by which a grantor conveyed land to a grantee.” Livery of seisin,
`BLACK’S LAW DICTIONARY 1076 (10th ed. 2014)