Nye's Estate, In re

• Decision Date: 06 August 1973
• Docket Number: No. 1271A259,1271A259
• Citation: 299 N.E.2d 854,157 Ind.App. 236
• Parties: In the matter of the ESTATE of William NYE, Deceased. Bonita Louise Grove WEBSTER, Plaintiff-Appellant v. FIRST NATIONAL BANK OF WARSAW, Warsaw, Indiana, et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 854

299 N.E.2d 854

157 Ind.App. 236

In the matter of the ESTATE of William NYE, Deceased.

Bonita Louise Grove WEBSTER, Plaintiff-Appellant v. FIRST NATIONAL BANK OF WARSAW, Warsaw, Indiana, et al.,

Defendants-Appellees.

No. 1271A259.

Court of Appeals of Indiana, Second District.

Aug. 6, 1973.

William R. Clifford of Jones, Withers & Clifford, Anderson, for plaintiff-appellant.

Byron C. Kennedy and Herbert H. Bent of Rockhill, Kennedy, Pinnick, Sand & Bent, Warsaw, for defendants-appellees; Byron P. Hollett, Virgil L. Beeler and Jerry D. Harner of Baker & Daniels, Indianapolis, of counsel.

WHITE, Judge.

I.

What is at stake here is the residue of a decedent's estate. The question is whether James Whitcomb Riley Hospital for Children, Indianapolis, takes it by virtue of testator's Indiana will or whether his deceased wife's nieces and nephew take it under a later Florida will which, if valid, revokes his earlier Indiana will. ¹ That the Indiana will is valid unless so revoked is not disputed. The only dispute is whether the Florida will was valid when executed. That dispute was litigated in Florida where it was adjudged, in Riley Hospital's contest of the Florida will, that the Florida will is valid. When appellant, a residuary legatee of the Florida will, contested the Indiana will in Indiana the trial court refused to accept the Florida judgment as conclusive. Instead, it heard the evidence and held that the Florida will was not validly executed under either Indiana or Florida law and confirmed the probate of the Indiana will. That judgment is before us on this appeal.

We reverse.

II.

We shall hereinafter refer to the decedent, William Nye, as 'testator', since by everyone's version he did die testate, either by virtue of his death bed Florida will or his earlier Indiana will. He was born in Warsaw, Kosciusko County, Indiana, June 10, 1882, and died, at eighty-eight years of age, June 14, 1970, in Bradenton, Manatee County, Florida. He grew up, married, and engaged in the retail jewelry business in Warsaw until he reached retirement age. His wife died in 1951 (when he would have been 68 or 69 years old). No children were ever born to his marriage and it appears that he was survived by no blood relatives (or at least noen close enough to be mentioned as such in either of his wills). In 1925 testator and his wife began to spend a part of every winter in Florida. After her death he sold his dwelling house in Warsaw. (So far as the record discloses, it may have been the only real estate he ever owned.) He then began to spend more time each winter in Florida, but returned every spring to Warsaw where he stayed in a furnished apartment in a friend's house. Testator paid rent for the apartment while he stayed in it but not while he was in Florida, even though it was never occupied by anyone else. In Florida he lived in a mobile home court where he leased space for a mobile home, titled in his name and the name of Donald Baum of Warsaw (a beneficiary of both wills whose relationship, if any, to testator is not disclosed by the record). When testator was not in Warsaw he left no tangible property there (and had none elsewhere in Indiana) but he did maintain a safe deposit box in the First National Bank in Warsaw in which he kept the paper evidences of his considerable intanbigles, including certificates of ownership of several shares of stock in that bank and in another bank in Kosciusko County, certificates of deposit in those banks, a U.S. Government bond, and shares of paid-up stock in a Warsaw building and loan association. ² The record contains no estimate of the total value of his estate nor of his Warsaw-related intangibles. It does disclose, however, that his total bank deposits exceeded $100,000.00 and it seems a fair guess that the value of his bank stock was even greater.

$tTestator's Indiana will (replacing an earlier will) was executed at Warsaw, September 23, 1966. Minor changes were made by codicils in 1968 and 1969. By this will specific bequests were made to his deceased wife's nieces and nephew, to friends, and to the Warsaw Methodist Church. The bulk of his estate, including all his stock in the Warsaw bank, was given by residuary bequest to James Whitcomb Riley Hospital for Children.

On June 6, 1970, while still in Florida, but about to return to Warsaw for the summer, testator fell and broke his hip. He was taken to the Managee Memorial Hospital in Bradenton, Florida, where he remained until he died on June 14, 1970. Robert Nelson, his nephew by marriage who, under the Indiana will, was to share in testator's estate only to the extent of receiving one-fifth of his stock in the Mentone bank, arrived soon thereafter. Nephew Robert employed a local attorney who drew a will which was signed by testator on June 12, 1970. That will, the Florida will, increased the bequest to the Warsaw Methodist Church from $2,000.00 (per the last codicil to the Indiana will) to $3,000.00 and gave $10,000.00 'to Donald Baum and Theodosia Baum, Warsaw, Indiana, share and share alike', rather than, as by the Indiana will, one-fifth of the stock of the Mentone bank to each. ³ The rest and residue of the estate was given, one third each, to the nieces and nephew, 'Robert E. Nelson, 328 Sturges Parkway, Elmhurst, Illinois', 'Kathern R. Nelson, of Detroit, Michigan', and 'Bonita Grove Webster, of Anderson, Indiana', obviously a considerable enlargement of the Indiana bequest of one-fifth of the Mentone bank's stock to each. This left nothing for the James Whitcomb Riley Hospital, nor was the hospital mentioned in the Florida will. Robert Nelson was named executor.

The day after the Florida will was executed Robert Nelson arrived at the Bank (i.e., the First National Bank of Warsaw, Indiana, executor of the Indiana will) and by virtue of a power of attorney which testator had signed on June 8, 1970, was permitted to open testator's safe deposit box and remove its contents (which did not include his Indiana will, it being in the possession of his Indiana attorneys who are also attorneys for the Bank).

The next day, June 14, 1970, testator died. On June 16, 1970, the day of his funeral in Warsaw, his Indiana will was probated at Warsaw and the Bank was appointed executor. Three days later, June 19, 1970, his Florida will was probated in the County Judge's Court in and for Manatee County, at Brandenton, Florida, and Robert E. Nelson was appointed executor.

On July 3, 1970, the Trustees (i.e., James Whitcomb Riley Hospital) commenced a contest of the Florida will by filing in the Florida court where it was probated a petition to set aside the probate of the Florida will. Their petition alleged, (1) that testator was a resident of Kosciusko County, Indiana, not of Florida; (2) that the Florida will was not executed in the manner provided by Florida law; (3) that its execution was procured by Robert Nelson's undue influence; and, (4) that testator was incompetent.

On October 20, 1970, the Florida court held a hearing on the issue of the legality of the manner in which the Florida will was executed. On October 22, 1970, the Florida court issued its 'Order of Confirmation of Probate as to Execution of Will' in which it was 'ordered and adjudged . . .. That the petition for revocation of probate as to improper execution be and the same is hereby denied . . . (and) the petition for confirmation in regard to proper execution of the will be and the same is hereby granted and probate is hereby confirmed as to the due and proper execution of the Will.'

On December 14, 1970, the action from which this appeal arises was commenced. Bonita Louise Grove Webster, a niece and residuary legatee of the Florida will, filed her 'Complaint to Contest Validity of Will'. It alleged that the Indiana will had been revoked by the Florida will and also recited what had occurred (to that date) in the Florida will contest. All other beneficiaries of both wills and the First National Bank of Warsaw (hereafter 'Bank') were made parties defendant but the record is unclear as to service. Appearances and answers are shown only for the Bank and the Trustees. ⁴

While this Indiana will contest was still pending (in the Wabash Circuit Court on change of venue from the Kosciusko Circuit Court) and prior to its submission for trial, the trial of the Florida will contest was concluded. On March 18, 1971, the Florida court handed down its 'Final Judgment' in which it recited detailed findings that (1) testator was domiciled in Manatee County, Florida, at death, (2) there was no undue influence, and (3) testator was competent. Thereupon the following was

'ORDERED AND ADJUDGED:

'1. The Court does hereby reaffirm that Order entered the 22nd day of October, 1970 confirming the Order of Probate as to the execution of the Last Will and Testament of the decedent, William Nye.

'2. The Court reaffirms the directed verdict in favor of the Respondents herein granted at the close of all of the evidence following the trial herein as to the testamentary capacity of William Nye, deceased.

'3. William Nye was domiciled in the State of Florida, County of Manatee.

'4. Neither Robert E. Nelson nor any other person exercised any undue influence upon or against the decedent and that the Order of Probate originally entered herein is hereby confirmed in all respects and that Robert E. Nelson, as executor, may proceed with the administration of the Estate of William Nye, deceased.'

That Florida judgment was brought before the Indiana trial court by affidavits and certified copies appended to a motion for summary judgment filed by plaintiff in response to the defendant Bank's motion for summary judgment. At that time the Indiana will contest was at issue on plaintiff's complaint and on answers by defendants Bank, the executor, and the Trustees, the principal Indiana will's beneficiary. Those answers alleged that the Florida will was invalid because (1) testator was...