In Re the Supervised Estate of Dorothy M. Hall (Decedent), Doloris Tilly v. Jeff Hall and Doris Andres ( 2020 )

FILED
May 27 2020, 9:08 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern JEFF HALL
Anderson, Indiana Crystal G. Rowe
Kristi L. Fox Katherine E. Tapp
Richard R. Fox Kightlinger & Gray, LLP
New Albany, Indiana New Albany, Indiana
ATTORNEY FOR APPELLEE
DORIS ANDRES
Rachele L. Cummins
Jeffersonville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Supervised Estate of May 27, 2020
Dorothy M. Hall (Decedent), Court of Appeals Case No.
19A-ES-1450
Doloris Tilly,
Appeal from the Floyd Circuit
Appellant, Court
v. The Honorable Joseph P. Weber,
Special Judge
Jeff Hall and Doris Andres, Trial Court Cause No.
22C01-1411-ES-163
Appellees.
Brown, Judge.
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[1] Doloris Tilly appeals the trial court’s interlocutory order of April 26, 2019, in
the Supervised Estate of Dorothy M. Hall. We affirm.
Facts and Procedural History
[2] In 1987, Frank Hall (“Frank”) and Dorothy Hall (“Dorothy”) owned certain
real property on Old Vincennes Road in Floyds Knobs, Indiana. 1 Jeff Hall
(“Hall”) was Frank’s son and Dorothy’s stepson. Frank passed away in May
1987, and Dorothy became the sole owner of the Old Vincennes Road property
and lived there. According to Hall, he and his father Frank raised cattle on the
property and, after his father passed away, he continued to raise cattle and
maintained the property and barn. Dorothy had two daughters, Doris Andres
and Tilly.
[3] On September 3, 2008, Dorothy executed a Last Will and Testament leaving
the approximately eight-acre property on Old Vincennes Road to Hall and
leaving the residue of her estate to Tilly. The will stated that Andres had
received certain money from a joint inter vivos account and thus no provision
was made for her. It named Tilly’s husband, Thomas Tilly (“Thomas”), as the
executor of the estate and Hall as an alternate executor. Dorothy also signed a
power of attorney appointing Tilly and Thomas as her attorneys in fact.
1
According to Jeff Hall, his father Frank and his mother purchased real property in 1955, his parents were
later divorced, Frank married Dorothy in 1963, and the property was placed in Frank and Dorothy’s names
in 1971. Frank and Dorothy conveyed about three acres of the property to Hall’s brother and about three
acres of it to Hall, and retained and lived on the remaining property of approximately eight acres.
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[4] On March 5, 2010, Dorothy signed a quitclaim deed conveying the Old
Vincennes Road property to Tilly. 2 Dorothy passed away on October 25, 2014.
On November 3, 2014, Andres filed a petition for supervised administration
requesting that she be appointed as the personal representative of the estate.
[5] Hall received a letter dated November 4, 2014, from Tilly and Thomas’s
counsel addressed to him and Andres stating: Dorothy had transferred her real
estate to Tilly on March 5, 2010, pursuant to enclosed deeds; Dorothy’s other
assets were held jointly with Tilly and passed directly to her as a matter of law;
pursuant to Dorothy’s September 3, 2008 will, all of her tangible property
passed to Tilly; and thus it was not necessary to open a probate estate for
Dorothy unless additional assets were discovered.
[6] On November 7, 2014, Tilly filed an objection stating that she lived with
Dorothy for several years before her death and was familiar with Dorothy’s
assets and that Dorothy had executed a will naming Thomas as the personal
representative of her estate. On November 24, 2014, counsel for Hall filed an
appearance. On December 2, 2014, the court issued an order appointing
Thomas as the personal representative of Dorothy’s estate.
[7] On December 10, 2014, Andres filed a “Verified Petition to Contest Will”
requesting that the purported will be declared invalid and alleging that Dorothy
was of unsound mind and she was under the undue influence of Tilly and
2
On the same day, Dorothy signed a quitclaim deed conveying a property on Ekin Avenue to Tilly.
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Thomas. The petition stated Hall and Tilly were joined in the action because
they were beneficially interested in the purported will as devisees. On
December 17, 2014, Andres filed a Verified Petition to Set Aside Deeds which
alleged: Dorothy previously owned the Old Vincennes Road parcel and a rental
home on Ekin Avenue; Dorothy executed quitclaim deeds on March 5, 2010,
conveying both parcels to Tilly; and Dorothy was of unsound mind, suffering
from dementia, and under undue influence and duress at the time of the
execution of the deeds. She requested the deeds be declared invalid and the real
estate be deemed part of the estate.
[8] On January 2, 2015, Thomas filed a motion to resign as personal representative
and to appoint a special administrator which stated Tilly, Andres, and Hall
were all interested parties and that they should equally share the fees of the
special administrator. The motion stated Tilly and Thomas resided in the
residence at the Old Vincennes Road property and requested an order that they
could continue to live there rent free.
[9] On January 9, 2015, the court entered an Agreed Order Appointing Special
Administrator. The Agreed Order defined Tilly, Andres, and Hall as
“Interested Parties,” appointed a special administrator, and ordered that the
Interested Parties share equally in the fees of the special administrator and that
Tilly and Thomas could continue to reside rent free in the residence and would
pay all expenses for maintenance, insurance, utilities, and taxes while residing
there. The Agreed Order was signed by counsel for Tilly, Andres, and Hall.
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[10] An entry in the chronological case summary dated November 6, 2015, states
that a conference was held at which counsel for Andres, Tilly, and Hall were
present and that Tilly was authorized to replace the HVAC system in the home
on Old Vincennes Road and could seek reimbursement from the estate. A
bench trial was eventually scheduled for February 6, 2017. On January 20,
2017, Hall filed a motion for continuance stating he had not received certain
requested discovery. Also on that date, Hall and Andres filed a joint motion for
mediation. Tilly and Thomas objected to the motions.
[11] On January 31, 2017, the court issued an order stating it held a telephonic
conference with all counsel participating, counsel for Hall and Andres proposed
that their respective clients pay for the cost of mediation, and the requested
discovery had relevance to the issues to be heard at trial and was apparently
available from non-parties. The court granted Hall’s motion to continue and
found that the validity of Dorothy’s will and her deeds were in dispute and that
“[t]he interests of all three (3) parties are very much at stake in this case and
such interests [are] substantial.” Appellant’s Appendix Volume II at 169. The
court ordered that the parties participate in mediation, that Hall and Andres
pay the cost of mediation, that supplemental discovery requests may be made
until February 20, 2017, and that responses were due within twenty days
thereafter.
[12] On March 14, 2017, a mediator’s report was filed stating that mediation
occurred on March 9, 2017, that all parties were present and represented by
counsel, and that mediation was unsuccessful. On March 15, 2017, Hall’s
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counsel filed a motion for extension of time stating that Tilly had served a
request for admissions on or about February 21, 2017, while he was out of the
state, the answers were due, and he was requesting until April 1, 2017 to file
responses.
[13] On March 17, 2017, Tilly and Andres filed a Motion to Withdraw Petitions to
Contest Will and Set Aside Deeds and Joint Motion to Dismiss Any and All
Claims (the “Motion to Dismiss”). The Motion to Dismiss stated that Tilly and
Andres had reached a settlement of the claims made by Andres and that they
requested the dismissal with prejudice of all claims in the estate. A minute
entry stated that Hall’s counsel was granted fourteen days from the date of the
filing of the Motion to Dismiss to file a response.
[14] On March 31, 2017, new counsel for Hall filed an appearance and filed a
response to the Motion to Dismiss which stated that Dorothy signed her will in
2008, her mental and physical health deteriorated in 2009, she was diagnosed
with Alzheimer’s in February 2010, and that she purportedly signed a quitclaim
deed on March 5, 2010, transferring the Old Vincennes Road property to Tilly.
Hall argued that, throughout the course of the matter, the property was treated
as property of the estate and pointed to the November 6, 2015 entry authorizing
Tilly to replace the HVAC system in the home and seek reimbursement from
the estate, Tilly’s discovery upon him, and his agreement to the appointment of
a special administrator. He asserted the court should not dismiss the claims
based on Tilly’s and Andres’s secret agreement which did not account for his
interest in the property and the request to set aside deeds.
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[15] On April 6, 2017, Hall filed an affidavit in support of his response opposing the
Motion to Dismiss. Paragraph 4 of the affidavit stated: “Dorothy Hall
represented to me on numerous occasions that she wanted me to have the
Property, as it belonged to my family and she wanted me to be able to continue
to raise my cattle close to my home as I had done for decades.” Appellant’s
Appendix Volume III at 43. Hall also stated in the affidavit that: he did not
know, prior to Dorothy’s death, of her alleged conveyance of his family’s farm
on Old Vincennes Road; Tilly and Thomas did not inform him that Dorothy
had transferred the property to them or question his presence on the property
until he received the November 4, 2014 letter; when speaking with him about
the property, Tilly and Thomas always acted as if the property belonged to
Dorothy and Hall’s family; and that, until Dorothy’s death, Tilly and Thomas
always referred to the property as “mother’s property” or “mother’s house.” Id.
at 44.
[16] On April 14, 2017, Tilly filed a reply arguing Hall’s claim that the 2010 deed be
set aside was time-barred. Also on that date, she filed a motion to strike Hall’s
April 6, 2017 affidavit, arguing the affidavit was untimely and violated the
Dead Man’s Statutes at Ind. Code §§ 34-45-2-4 and -5. She also filed a Motion
to Strike Jeff Hall’s Discovery Responses and Certify Admissions which stated:
the court provided the parties twenty days to respond to discovery requests; she
served requests for admissions on Hall on February 20, 2017; he moved for an
extension on March 15, 2017; he served answers to her requests which included
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a number of denials on March 31, 2017; his answers should be stricken from the
record; and her requests for admissions should be deemed admitted.
[17] On July 19, 2017, Hall filed a motion for leave to intervene in the petition to set
aside deeds or be joined as an indispensable party (“Motion to Intervene”). He
argued that the agreement between Andres and Tilly failed to account for his
interest, the validity of Dorothy’s will and deeds were in controversy, and that
any approval of the agreement would contravene the compromise statute. He
argued that an interested party may join a will contest after the time for filing a
will contest had lapsed so long as the action being joined was initiated before
the expiration of the statutory period, that for the same reasons an interested
party may join a timely petition to set aside deed, and that he met the
requirements to intervene in the petition to set aside the deed.
[18] In an entry dated October 17, 2018, the court denied Tilly and Andres’s Motion
to Dismiss and granted them thirty days to respond to the pending motions. On
November 17, 2018, Tilly filed a memorandum opposing Hall’s Motion to
Intervene.
[19] On March 13, 2019, the court held a hearing. Tilly’s counsel requested that
Hall’s April 6, 2017 affidavit be struck and argued it was untimely and violated
the Dead Man’s Statutes. Hall’s counsel argued the affidavit was not offered as
proof for trial but to show Hall’s interest in the matter and in support of his
request to intervene and requested that the affidavit be considered for that
limited purpose, and the court stated it would allow the affidavit for the limited
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purpose requested. Tilly’s counsel then argued Hall’s responses to her requests
for admissions were untimely and her requests were deemed admitted and
asked the court to certify the admissions and strike Hall’s responses. Hall’s
counsel noted the timeline and that the issue arose with prior counsel, argued
Tilly was not prejudiced by the delay and the requests related to issues that were
central to the case, and requested the court to allow Hall’s responses to stand
or, if the requests were deemed admitted, to allow their withdrawal and
amendment. The court found the responses were central to issues which were
the crux of the case and denied Tilly’s request to strike.
[20] With respect to the assertion Hall did not file a claim, Hall’s counsel argued
that it reflected a misunderstanding of the probate process, the statute to which
Tilly and Andres referred related to liabilities of the decedent, Dorothy did not
owe her children or Hall anything while she was alive, none of the issues raised
by the parties could be described as a claim, and that he had never in his career
filed a claim on behalf of a beneficiary solely as to their interest as a beneficiary.
[21] The court stated, “if I went to court and [the court] ordered me to mediation
and ordered me to pay for part of the mediation and recognized me as a party, I
think I would leave with the impression that I was already in rather than out,”
“I think . . . it was reasonable for him to presume that he was already
participating as an interested party,” and “I don’t think it’s possible to
determine the wishes of Dorothy Hall and the appropriate outcome of this
estate case without Mr. Hall being allowed to participate, and so I’m going to
allow him to participate.” Id. at 30-31. Tilly’s counsel requested that the court
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strike Hall’s cross-claim, Hall’s counsel noted the cross-claim was tendered as a
proposed document and was not filed, and the court granted the request.
[22] On April 26, 2019, the court issued an order denying Tilly’s motion to exclude
Hall’s discovery responses; denying Tilly’s motion to strike Hall’s affidavit; and
granting Hall’s Motion to Intervene. It certified the order for interlocutory
appeal.
Discussion
[23] Tilly appeals the April 26, 2019 order. She argues the trial court should have
denied Hall’s Motion to Intervene as untimely under Ind. Code § 29-1-14-1, and
that this Court should “find that the settlement agreement between the only two
parties actively litigating the case is valid and enforceable.” Appellant’s Brief at
29. She also argues the trial court should have granted her requests to strike
Hall’s affidavits and his responses to her request for admissions. Andres filed a
brief agreeing with Tilly’s arguments.
[24] Hall responds that he is not a claimant under Ind. Code § 29-1-14-1, that he is a
devisee and an interested party, and the settlement agreement between Tilly and
Andres was statutorily invalid. He notes that he retained counsel at the outset
of the proceedings in 2014, engaged in discovery, attended hearings and
mediation, and paid his share of the special administrator and mediator fees.
He argues the court did not abuse its discretion in considering his June 12, 2017
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affidavit or in denying Tilly’s motion to strike his responses to her requests for
admissions. 3
A. Hall’s Affidavits
[25] To the extent Tilly and Andres argue the trial court improperly considered
Hall’s affidavits, we note that Tilly’s April 14, 2017 motion to strike requested
the court to strike Hall’s April 6, 2017 affidavit in support of his opposition to
the Motion to Dismiss, that the court later denied the Motion to Dismiss, and
that Tilly does not argue that she filed a motion to strike Hall’s June 12, 2017
affidavit which was attached to his Motion to Intervene. Moreover, the June
12, 2017 affidavit did not include the statement found in paragraph 4 of the
April 6, 2017 affidavit regarding Hall’s conversations with Dorothy before her
death, the other statements in the affidavit relate to facts to which Hall, Tilly,
and Andres could present evidence, and the trial court noted its limited
consideration of the affidavit. 4 Reversal on this basis is not warranted.
3
Tilly also argues the trial court indicated at the March 13, 2019 hearing that it granted her motion to strike
Hall’s cross-claim but that its April 26, 2019 order failed to reflect that ruling. Hall notes the proposed cross-
claim was never filed but merely submitted as an exhibit to his Motion to Intervene and thus “there was
nothing for the probate court to ‘strike.’” Appellee Hall’s Brief at 15 n.5. We find below that Hall has an
interest in the estate and the proceeding related to the validity of Dorothy’s March 2010 deed transferring the
Old Vincennes Road property to Tilly. Remand on this issue is not warranted.
4
See Johnson v. Estate of Rayburn, 587 N.E.2d 182, 184-185 (Ind. Ct. App. 1992) (holding the Dead Man’s
Statutes require that “when the lips of one party to a transaction are closed by death, the lips of the surviving
party are closed by law,” “[t]he application of the statute is limited to circumstances in which the decedent, if
alive, could have refuted the testimony of the surviving party,” and the statutes apply “only where the
claimant is prepared to testify as to matters or transactions concerning the decedent, and not merely as to
matters that occurred while the decedent was alive”) (quoted with approval in Taylor v. Taylor, 643 N.E.2d
893, 896 (Ind. 1994)), superseded by statute on other grounds as recognized in Gipperich v. State, 658 N.E.2d 946Court of Appeals of Indiana | Opinion 19A-ES-1450 | May 27, 2020 Page 11 of 19
B. Requests for Admissions
[26] As for Tilly’s requests for admissions, Ind. Trial Rule 36 provides that a matter
for which an admission is requested “is admitted unless, within a period
designated in the request, not less than thirty [30] days after service thereof or
within such shorter or longer time as the court may allow, the party to whom
the request is directed serves upon the party requesting the admission a written
answer or objection . . . .” Ind. Trial Rule 36(B) permits the withdrawal of
admissions and provides “the court may permit withdrawal or amendment
when the presentation of the merits of the action will be subserved thereby and
the party who obtained the admission fails to satisfy the court that withdrawal
or amendment will prejudice him in maintaining his action or defense on the
merits.” “As used in Rule 36(B), the word ‘prejudice’ does not mean that the
party who has obtained the admissions will lose the benefit of the admissions;
rather, it means that the party has suffered a detriment in the preparation of his
case.” Costello v. Zavodnik, 55 N.E.3d 348, 352-353 (Ind. Ct. App. 2016)
(citation and internal quotation marks omitted) (“Zavodnik would suffer no
such detriment. The matter has not yet been set for trial, Zavodnik still has
time to prepare his case, and there is no evidence that he has relied on
(Ind. Ct. App. 1995); see also Nichols v. Estate of Tyler, 910 N.E.2d 221, 227 (Ind. Ct. App. 2009) (“Evaluating
mental capacity to contract for the sale of real property is closely akin to evaluating the mental capacity
necessary to make a will”); Estate of Verdi ex rel. Verdi v. Toland, 733 N.E.2d 25, 26 n.1 (Ind. Ct. App. 2000)
(noting a testator’s soundness of mind is an exception to the application of the Dead Man’s Statute); Lee v.
Schroeder, 529 N.E.2d 349, 353 (Ind. Ct. App. 1988) (recognizing an exception regarding a testator’s
soundness of mind) (listing cases), reh’g denied, trans. denied.
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Costello’s admissions in a way that would impair his ability to prepare his
case.”), reh’g denied. We review the trial court’s determination only for abuse of
discretion. Id. at 352. Here, the trial court was able to consider the extent of
Hall’s delay in filing responses, the relative timing of his obtaining new counsel,
the extent to which the requests related to central issues in the case, and the
extent to which Tilly suffered a detriment in preparing her case. According to
her motion to strike, Tilly served her requests on Hall on February 20, 2017, he
had twenty days to respond, and he served his responses on March 31, 2017.
Under these circumstances we find no abuse of discretion.
C. Hall’s Motion to Intervene
[27] We turn to the trial court’s order granting Hall’s Motion to Intervene.
Indiana’s probate code includes a definitions section. According to Ind. Code §
29-1-1-3(a), “claims” include “liabilities of a decedent which survive, whether
arising in contract or in tort or otherwise, expenses of administration, and all
taxes imposed by reason of the person’s death,” and “claimant” means “a
person having a claim against the decedent’s estate as described in IC 29-1-14-
1(a).” Ind. Code § 29-1-1-3(a)(2) and -3(a)(3). The term “devise,” when “used
as a verb, means to dispose of either real or personal property or both by will,”
and the term “distributee” includes “those persons who are entitled to the real
and personal property of a decedent under a will.” Ind. Code § 29-1-1-3(a)(7)
and -3(a)(9). Further, the term “interested persons,” which sweeps more
broadly, includes “heirs, devisees, spouses, creditors, or any others having a
property right in or claim against the estate of a decedent being administered,”
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and “[t]his meaning may vary at different stages and different parts of a
proceeding and must be determined according to the particular purpose and
matter involved.” Ind. Code § 29-1-1-3(a)(15).
[28] With respect to Tilly’s and Andres’s assertion that Hall was required to file a
claim under Ind. Code § 29-1-14-1 and failed to timely do so, Ind. Code § 29-1-
14-1 provides that “claims” against an estate are barred unless filed within
certain periods. See Ind. Code § 29-1-14-1(d) (“All claims barrable under
subsection (a) shall be barred if not filed within nine (9) months after the death
of the decedent.”). However, as the definitions above reflect, not all interested
persons are claimants for purposes of Ind. Code § 29-1-14-1. The term “claims”
in the statute includes “liabilities of a decedent which survive, whether arising
in contract or in tort or otherwise.” Ind. Code § 29-1-1-3(a)(3). See In re
Lambert’s Estate, 116 Ind. App. 293, 300-301, 62 N.E.2d 871, 873 (1945)
(holding a proceeding to show proof of heirship and an interest in the
decedent’s estate was not a claim against the estate). There is no question that
Hall has not alleged the existence of a liability of Dorothy which survived her
death. We cannot say that Ind. Code § 29-1-14-1 requires reversal.
[29] We turn to whether Hall was a person with an interest in the estate and the
proceeding to set aside the March 2010 deeds. Ind. Code § 29-1-9-1 provides
for the compromise of any contest or controversy as to the rights or interests in
the estate of the decedent of any person claiming under a will or as to the
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administration of the estate of a decedent. 5 The compromise statute “provides
a mechanism for parties with an interest in a decedent’s estate to compromise
their differences and obtain a court order approving such compromise which is
then binding on the parties.” Estate of McNicholas v. State, 580 N.E.2d 978, 982
(Ind. Ct. App. 1991), trans. denied. Ind. Code § 29-1-9-2 provides that “[t]he
terms of the compromise shall be set forth in an agreement in writing which
shall be executed by all competent persons having interests or claims which will
or may be affected by the compromise . . . .” Ind. Code § 29-1-9-3 provides in
relevant part that, upon due notice to all “interested persons,” “the court shall,
if it finds that the contest or controversy is in good faith and that the effect of
the agreement upon the interests of persons represented by fiduciaries is just and
reasonable, make an order approving the agreement . . . .” As noted, the term
“interested persons” includes “heirs, devisees, spouses, creditors, or any others
having a property right in or claim against the estate of a decedent being
administered,” and “[t]his meaning may vary at different stages and different
5
Ind. Code § 29-1-9-1 provides:
The compromise of any contest or controversy as to:
(a) admission to probate of any instrument offered as the last will of any decedent,
(b) the construction, validity or effect of any such instrument,
(c) the rights or interests in the estate of the decedent of any person, whether claiming
under a will or as heir,
(d) the rights or interests of any beneficiary of any testamentary trust, or
(e) the administration of the estate of any decedent or of any testamentary trust,
. . . shall, if made in accordance with the provisions of this article, be lawful and binding upon all the
parties thereto . . . ; but no such compromise shall in any way impair the rights of creditors or of
taxing authorities.
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parts of a proceeding and must be determined according to the particular
purpose and matter involved.” Ind. Code § 29-1-1-3(a)(15) (emphases added).
See In re Estate of Yeley, 959 N.E.2d 888, 894 (Ind. Ct. App. 2011) (holding the
trial court erred in approving an agreement reached by the appellant’s siblings
and not signed by the appellant where, in the event of non-settlement and the
ensuing litigation resulted in the invalidation of the testamentary instruments,
the appellant would stand to inherit one-fourth of the estate), trans. denied.
[30] Here, if the proceeding results in the invalidation of Dorothy’s 2010 deed
transferring the Old Vincennes Road property to Tilly, Hall would stand to
receive the property. To the extent the agreement between Tilly and Andres
was not executed by Hall and would affect his interest in the estate and
proceeding, the agreement did not satisfy the requirements of the compromise
statute. See Ind. Code § 29-1-9-2. Even assuming that, prior to his Motion to
Intervene, Hall did not expressly request to join Andres’s petition or file a
separate motion to set aside the 2010 deeds, for the reasons below we are
persuaded that he was not required to do so under the circumstances.
[31] In Johnson v. Morgan, Martha Dietrich passed away leaving her estate to her
niece Ruth Ann Morgan. 871 N.E.2d 1050, 1052 (Ind. Ct. App. 2007). Two of
Dietrich’s nephews, Charles and John Wesson, filed a complaint to contest her
will alleging she lacked the capacity to execute a will due to dementia and had
been unduly influenced by Morgan. Id. Mary Johnson together with other
nieces and nephews of Dietrich later filed a motion to intervene, which the
court granted. Id. Morgan moved to dismiss Johnson’s intervening complaint
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on the basis that Johnson had filed her motion outside the statute of limitations
for will contests, and the court dismissed Johnson from the lawsuit. 6 Id. On
appeal, this Court held:
[W]e note that Johnson filed her complaint as an intervening party, and
therefore her complaint was not the initial complaint. In Estate of Helms v.
Helms-Hawkins, 804 N.E.2d 1260, 1265 (Ind. Ct. App. 2004), trans. denied,
we concluded that “an interested party may join a will contest after the time
for filing a will contest has lapsed, so long as the action being joined was
initiated before the statutory period.” We relied in large part on State ex rel.
Matheny v. Probate Court of Marion County, 239 Ind. 518, 159 N.E.2d 128(1959), where our supreme court held that a necessary party could be added
to a will contest after the expiration of the statutory time for filing such
contest. Our supreme court’s ruling in Matheny was based in large part
upon a passage from a nineteenth-century Indiana case addressing
essentially the same issue:
Where a petition of [a will] contest is filed within the statutory period
of limitation although only part of the persons interested are made
parties thereto, the right of action is saved as to all who are ultimately made
parties, notwithstanding some of them are not brought into the case
until after the period of limitation has expired. If any person
interested appears, and in good faith files his petition for a contest,
the statutes entitle him to a trial, and the verdict of a jury, touching
the validity of the will, and that verdict will be binding upon all
parties who may be before the court as such, at the time of its
rendition. The interest of the parties is joint and inseparable.
Substantially this is a proceeding in rem, and the court can not take
jurisdiction of the subject-matter by fractions. The will is indivisible,
and the verdict of the jury either establishes it as a whole, or wholly
sets it aside. To save the right of action therefore to one is necessarily to save
6
Ind. Code § 29-1-7-17 provides in part that “[a]ny interested person may contest the validity of any will in
the court having jurisdiction over the probate of the will within three (3) months after the date of the order
admitting the will to probate by filing in the same court, in a separate cause of action, the person’s allegations
in writing . . . .”
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it to all. The case belongs to that class of actions where the law is
compelled either to hold the rights of all parties in interest to be
saved, or all to be barred. And it seems now to be quite well settled
law, that the preference will in such cases be given to the right of
action, and not to the right of limitation. The right to sue is a favored
right and is guaranteed by constitutional provision while the right of
limitation generally meets with more or less disfavor.
Floyd v. Floyd, 90 Ind. 130, 133-34 (1883) (citation omitted).
There has been no contention that the Wessons failed to file a complaint
naming Morgan as the defendant within the three-month time frame.
Consequently, the trial court acquired jurisdiction over the will contest with
the filing of this complaint, and the right of action was saved as to all
interested parties. Therefore, Johnson’s status as a party to the proceeding
is not defeated merely by virtue of the fact that she failed to properly obtain
service within the three-month time period.
Id. at 1054-1055 (emphases added). The rationale in Johnson and the authority
to which it cites supports the conclusion that, as a devisee who stands to receive
the Old Vincennes Road property if Dorothy’s 2010 deed is invalidated, Hall
was not required to file a separate request to set aside the March 2010 deeds or
join Andres’s petition.
[32] In addition, the record reveals that Hall’s counsel filed an appearance soon after
the estate proceeding was initiated in 2014, and since then Hall has participated
in the hearings, was ordered to pay a share of the special administrator and
mediator fees, and requested and participated in mediation, all on the premise
he had an interest in the estate and proceeding. The record also reflects that,
prior to attempting to enter an agreement, Tilly and Andres treated Hall as
having such an interest. Andres’s 2014 petition contesting Dorothy’s will
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indicated that Hall was joined because he was beneficially interested as a
devisee under the will, and her petitions to contest the will and to set aside the
deeds were served on Hall. Thomas’s 2015 motion to resign as personal
representative stated that Tilly, Andres, and Hall were all interested parties.
The court’s January 9, 2015 agreed order defined Tilly, Andres, and Hall as
“Interested Parties,” ordered them to equally share in the fees of the special
administrator, and was signed by counsel for all three parties. Appellant’s
Appendix Volume II at 108. Further, the court’s January 31, 2017 order
referred to Hall as an interested party and expressly found the validity of
Dorothy’s will and deeds were in dispute and “[t]he interests of all three (3)
parties are very much at stake in this case and such interests [are] substantial.”
Appellant’s Appendix Volume II at 169.
[33] Based upon the record, we affirm the trial court’s April 26, 2019 interlocutory
order.
[34] Affirmed.
Najam, J., and Kirsch, J., concur.
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