Barnett's Estate, In re

• Decision Date: 07 March 1974
• Docket Number: No. 2--1072A82,2--1072A82
• Parties: In the Matter of the ESTATE of Maude E. BARNETT, Deceased. Elizabeth K. BERKEBILE, Appellant, v. Ernest J. BARNETT, Appellee.
• Court: Indiana Appellate Court

Page 490

307 N.E.2d 490

159 Ind.App. 491

In the Matter of the ESTATE of Maude E. BARNETT, Deceased.

Elizabeth K. BERKEBILE, Appellant, v. Ernest J. BARNETT, Appellee.

No. 2--1072A82.

Court of Appeals of Indiana, Third District.

March 7, 1974.

Donald F. Foley, Yaeger, Foley, Hafsten & Sehr, Indianapolis, for appellant

Charles R. Tiede, Plummer, Tiede, Magley & Metz, Wabash, for appellee.

STATON, Judge.

I. STATEMENT ON THE APPEAL

Ernest Barnett filed his 'Co-Executor's Final Account; Petition to Settle and Allow Account; and Petition for Partition of Undivided Interests in Real Estate,' hereinafter referred to as petition, on July 25, 1969. Elizabeth Berkebile, a co-executor and heir, filed her objections to this petition on August 29, 1969. After a hearing by the Wabash Circuit Court on the petition and objections, the trial court granted the petition for partition and approved the final account on December 4, 1970. The court additionally ordered an appraisal of the partitioned real estate to enable an equalization of the distribution if necessary. This appraisal report was filed by the appraiser on February 19, 1971, and the court ordered Elizabeth Berkebile to pay Ernest Barnett $1,000 to equalize the distribution under the December 4, 1970 judgment partitioning real estate. Elizabeth Berkebile filed her motion to correct errors within sixty days of the February 19, 1971 order to pay $1,000. This motion to correct errors was overruled on July 18, 1972 and this appeal followed raising these issues for our consideration:

ISSUE ONE: Was there sufficient evidence to support the trial court's finding that an oral agreement for partition existed between Elizabeth Berkebile and Ernest Barnett?

ISSUE TWO: Is the order for partition contrary to the law since it conflicts with the 'intent' of the testator to devise the land jointly?

ISSUE THREE: Was the trial court's failure to appoint commissioners under I.C. 32--4--5--6 (Burns 1973) a denial of due process? ¹

Our opinion concludes that there was sufficient evidence to support the trial court's finding of an oral agreement to partition; however, such an agreement is not necessary since the trial court's judgment is authorized and provided for under I.C. 29--1--17--11. (Burns 1972). On the second issue, we conclude that the evidence fails to show that the partitioning ordered by the trial court was contrary to the intent of the testarix. Upon the third and last issue, we conclude that there was not a denial of due process. We affirm the trial court's judgment.

II. STATEMENT OF THE FACTS

Maude E. Barnett died testate on September 1, 1967. The heirs under her will were her children, Elizabeth K. Berkebile, Ernest J. Barnett and Carl Samuel Barnett. Carl Samuel Barnett was to receive $10,000 in trust. Ernest J. Barnett and Elizabeth L. Berkebile were to receive the residue of decedent's estate. Ernest J. Barnett and Elizabeth K. Berkebile were appointed co-executors. In the spring of 1968, a meeting was held in the offices of the co-executor's attorney. Ernest J. Barnett, Elizabeth K. Berkebile, and Dr. John Berkebile, Elizabeth's husband, were present and divided up the livestock and crops located on four tracts of land making up the residue of decedent's estate. It is at this meeting that Ernest Barnett contends he and his sister reached an oral agreement to partition the four tracts of land. He was to have an one hundred two (102) acre tract and a fifty-five (55) acre tract (hereinafter Tracts I and II respectively) and Elizabeth Berkebile was to have an eighteen (18) acre tract and an one hundred-twenty (120) acre tract (hereinafter Tracts III and IV respectively). After this meeting, Ernest Barnett farmed Tracts I and II and paid the taxes thereon, and the Berkebiles paid the taxes on Tracts III and IV, with a tenant, Mr. Harold Miller, farming Tracts III and IV. Elizabeth Berkebile, however, denies there was ever an agreement to partition the real estate and contends it was always her desire to keep the four tracts together to be held in trust for Ernest Barnett's children.

On July 25, 1969, Ernest Barnett filed his petition for partition which was granted by the trial court over Elizabeth Berkebile's objections. The trial court's judgment granting partition on December 4, 1970 reads in pertinent part as follows:

'NOW, THEREFORE, IT IS ORDERED AND DECREED by the Court as follows:

1. Said Account and Petition are hereby in all things approved.

2. Said EXECUTORS are hereby ordered and directed to transfer unto themselves, one (1) share each of the Common Capital Stock of THE FIRST NATIONAL BANK IN WABASH.

3. That ELIZABETH K. BERKEBILE, one of the residuary devisees of said Decedent, is now the owner in fee simple of the following described real estate in the County of Wabash, in the State of Indiana, to-wit:

TRACT III

(legal description deleted)

TRACT IV

(legal description deleted)

4. That ERNEST J. BARNETT, one of the residuary devisees of the Decedent, is now the owner in fee simple of the following described real estate in the County of Wabash, in the State of Indiana, to-wit:

TRACT I

(legal description deleted)

TRACT II

(legal description deleted)

5. That though by the terms of the Will of said Decedent all of the real estate hereinabove described descended to ERNEST J. BARNETT and ELIZABETH K. BERKEBILE, as tenants in common of equal undivided one-halfs, upon the death of said Decedent, they have, by agreement, entered into an equitable partition thereof, so that from the date of this Decree, their title to said several Tracts are as hereinbefore ordered 6. That ERNEST PAULLUS is now appointed by this Court to make an appraisal of the four Tracts of real estate hereinbefore described as of January 1, 1968, said appraisal not to take into account permanent improvements made after said date, and the said ERNEST PAULLUS is directed to file herein his appraisal of said values, following which a further order will be made herein directing payment to equalize the distribution of said real estate between the residuary devisees.

separate and apart from the ownership of each other, subject only to the equalization of values thereof as of January 1, 1968, in accordance with the further order of this Court.

'And said EXECUTORS are hereby ordered and directed to procure a certified copy of this Decree and to record same in the Office of the Recorder of Wabash County, Indiana.

'And THE PERU TRUST COMPANY is now ordered to file herein its acceptance of the Trust for CARL SAMUEL BARNETT and its oath for the performance of duties as TRUSTEE thereunder.'

On February 19, 1971, the appraiser's report was filed and the trial court ordered Elizabeth Berkebile to pay Ernest Barnett $1,000 as the excess value of the parcels she received over the value of those parcels received by Ernest. Elizabeth Berkebile's motion to correct errors, filed within sixty days of the order to pay $1,000, raises the issues stated below in our 'Statement of the Issues' section.

III. STATEMENT OF THE ISSUES

Elizabeth Berkebile's motion to correct errors raises the following issues for our determination:

ISSUE ONE: Was there sufficient evidence to support the trial court's finding that an oral agreement for partition existed between Elizabeth Berkebile and Ernest Barnett?

ISSUE TWO: Is the order for partition contrary to law since it conflicts with the 'intent' of the testator to devise the land jointly?

ISSUE THREE: Was the court's failure to appoint commissioners under I.C. 32--4--5--6 (Burns 1973) a denial of due process?

We conclude in our 'Statement on the Law' that the evidence was sufficient for the trial court's finding; however, it is not necessary that the evidence support such a finding to affirm the judgment. The judgment follows the statute. I.C. 29--1--17--11 (Burns 1972). Issues two and three are answered negatively. We affirm.

IV. STATEMENT ON THE LAW

Before reaching the issues raised by Elizabeth Berkebile in her motion to correct errors, it is necessary for this Court to determine if Ernest Barnett's motion to dismiss this appeal has merit. Rule TR. 59(C) of the Indiana Rules of Procedure, IC 1971, 34--5--1--1 provides:

'(C) When a motion to correct errors must be filed. A motion to correct errors shall be filed not later than sixty (60) days after the entry of judgment.'

This rule has been held to be mandatory and jurisdictional. See Brunner v. Terman (1971), Ind.App., 275 N.E.2d 553 and Lines v. Browning (1973), Ind.App., 295 N.E.2d 853.

It is Ernest Barnett's contention that the December 4, 1970 order of partition was the 'entry of judgment' from which the 60 days began to run for the purposes of this appeal. Since the motion to correct errors The Supreme Court of Indiana in defining an appealable final judgment has stated in Thompson v. Thompson (1972), Ind., 286 N.E.2d 657, 659.

of Elizabeth Berkebile was not filed within 60 days of the December 4, 1970 order but within 60 days of the February 19, 1971 order to pay $1,000, he contends that the motion to correct errors was not timely filed and that this Court does not have jurisdiction to hear this appeal. We disagree.

'As a general rule, a final judgment which is appealable is one which disposes of all of the issues as to all of the parties and puts an end to the particular case. . . . A final judgment reserves no further question or direction for future determination . . ..' (Our emphasis)

See also, Meyer v. McClellan (1972), Ind.App., 289 N.E.2d 149, 151 and Richards v. Crown Point Community School Corp. (1971), 256 Ind. 347, 269 N.E.2d 5. The December 4, 1970 order of partition was not an appealable final judgment. It did not put an end to the case since the trial judge's order of partition expressly provided that there was to be a further order 'directing payment to equalize the distribution of said real estate. . . .' Orders of the trial court making final distribution have been held to be a final...