Brown v. Edwards

• Decision Date: 19 September 1994
• Docket Number: No. 27A02-9312-CV-689,27A02-9312-CV-689
• Citation: 640 N.E.2d 401
• Parties: Earl BROWN, Personal Representative of the Estate of Velma Edwards, Earl Brown, Carolyn Ancil Royce, Kay Ancil Lake, Marvin D. Brown, Kathy Brown Speicher, and Beverly Small Wassouf, Appellants-Defendants, v. Bernard EDWARDS, Clarence Edwards, June Edwards Robbins, Gene Edwards, Mary Lou Edwards, Margaret Edwards, Linda Bocock McMahan, Maurice Cooper, Marsha Bricker, Melvin Cooper, Children of Doris Hause Cooper, Deceased, David Collins, Michael Collins, Children of Anna Bell Collins, Deceased, Sherry A. Miller, Bob Everson, Jr., Children of Willa May Everson, Scott Edwards, Mike Edwards, Andy Edwards, Jay Edwards, and Travis Edwards, Children of Gerald Edwards, Deceased, Appellees-Plaintiffs. 1
• Court: Indiana Appellate Court

Page 401

640 N.E.2d 401

Earl BROWN, Personal Representative of the Estate of Velma

Edwards, Earl Brown, Carolyn Ancil Royce, Kay Ancil Lake,

Marvin D. Brown, Kathy Brown Speicher, and Beverly Small

Wassouf, Appellants-Defendants, v. Bernard EDWARDS, Clarence Edwards, June Edwards Robbins, Gene Edwards, Mary Lou Edwards, Margaret Edwards, Linda

Bocock McMahan, Maurice Cooper, Marsha Bricker, Melvin

Cooper, Children of Doris Hause Cooper, Deceased,

David Collins, Michael Collins, Children of Anna Bell

Collins, Deceased, Sherry A. Miller, Bob Everson, Jr.,

Children of Willa May Everson, Scott Edwards, Mike Edwards,

Andy Edwards, Jay Edwards, and Travis Edwards, Children of

Gerald Edwards, Deceased, Appellees-Plaintiffs.

No. 27A02-9312-CV-689. ¹

Court of Appeals of Indiana,

First District.

Sept. 19, 1994.

Transfer Denied Dec. 30, 1994.

James T. Beaman, James T. Beaman & Associates, Marion, for appellants.

Herbert A. Spitzer, Mark E. Spitzer, Marion, for appellees.

ROBERTSON, Judge.

Earl Brown, the personal representative, along with the other appellants (Brown), brings this appeal from the successful claim of the appellees (Edwards) against the estate of Velma Edwards. Brown presents the following issues:

I. Whether communications between Warren and Velma Edwards, their attorney, and the attorney's assistant, regarding the preparation of their Wills[,] should be excluded from evidence on the basis that such communications are protected by the attorney-client privilege in an action brought by a third party requesting the imposition of a constructive trust over one-half ( 1/2) of Velma Edwards' estate.

II. Whether Plaintiffs [Edwards] presented clear, convincing and unequivocal evidence that Warren and Velma Edwards [had] entered into a contract not to revoke their Wills executed on July 15, 1974.

III. Whether the Plaintiffs [Edwards] in a contract action seeking the imposition of a constructive trust over one-half ( 1/2) of Velma Edwards' estate are entitled to payment of their attorney fees from the assets of the aforementioned estate under Ind.Code § 29-1-10-14.

We affirm.

Warren and Velma Edwards were husband and wife. They executed last wills and testaments on July 15, 1974. Martin Lake was their attorney in the matter; he drafted the wills and witnessed them along with his office assistant, Shirley Ball. Each of the wills was to leave the respective net estates to the surviving spouse but, if the spouse happened not to have survived, was to leave one-half of the net estate to Warren's nieces and nephews (Edwards) and the other half to Velma's nieces and nephews (Brown). Edwards claims the wills were mutual and reciprocal, based upon each spouse's promise not to revoke the survivor's will after the death of the other spouse.

Warren died in 1985. Almost all of his property had been jointly held with Velma, so his will was never probated. On October 16, 1990, Velma executed a last will and testament which revoked all prior wills. In the document, she devised all of her property to her nieces and nephews and made no provision for Warren's nieces and nephews. She died about a month later, and the 1990 will was admitted to probate.

Edwards then filed a complaint. In the first count, Edwards contested the validity of the 1990 will. In the second count, Edwards sought an equitable, constructive trust over one-half of Velma's estate, based upon the contention that the 1974 wills were mutual and reciprocal and had been made pursuant to a contract not to change the provisions in them after the death of either testator. In essence, Edwards claimed Velma had breached the contract when she had revoked her 1974 will.

Edwards sought summary judgment on the second allegation, which the trial court denied. The trial court granted partial summary judgment on two issues which Brown contests in this appeal. The trial court determined that the attorney-client privilege did not preclude the testimony of the attorney or his assistant, both of whom had participated in the preparation of the 1974 wills, and that Edwards was entitled to recover attorney's fees under Ind.Code 29-1-10-14.

The parties proceeded to trial on the breach of contract claim and held the will contest claim in reserve pending the results obtained from the trial. Edwards prevailed at the trial, and the trial court both imposed the requested constructive trust and awarded Edwards attorney's fees.

I

Brown claims the testimony of the attorney and his assistant, both of whom had participated in the preparation of the 1974 wills, should not have been admitted because the testimony violated the attorney-client privilege. The trial court determined that the testimony was "admissible without violation of the attorney/client privilege."

Indiana has long accepted the attorney-client privilege. See Jenkinson v. State (1840), 5 Blackf. 465. Indiana Code Section 34-1-14-5 recognizes the privilege as well:

Except as otherwise provided by statute, the following persons shall not be competent witnesses:

* * * * * *

(2) Attorneys, as to confidential communications made to them in the course of their professional business, or advice given in such cases.

The statute has not changed the rule of common law. See Kern v. Kern (1900), 154 Ind. 29, 33-34, 55 N.E. 1004, 1006. Also, the privilege extends to the agent of an attorney under some circumstances. See Brown v. State (1983), Ind., 448 N.E.2d 10, 14.

The general rule of privilege excludes testimony of communications between a client and her attorney regarding the preparation of a will. Briggs v. Clinton County Bank & Trust Co. (1983), Ind., 452 N.E.2d 989, 1012. An exception, however, has been engrafted upon the general rule. Id. The Briggs court stated that the exception applies, "[a]fter the client dies ... and a controversy arises concerning the validity of the will or between the claimants under the will ..." Id.

The parties agree that Velma's 1990 will, if valid, revoked her 1974 will. A mutual will, like any other, is revoked by the execution of a subsequent will inconsistent therewith. Manrow v. Deveney (1941), 109 Ind.App. 264, 33 N.E.2d 371 (quoting 69 C.J. p. 1300, § 2720). Equity will enforce the agreement, however:

when well and fairly founded, and will not suffer one of the contracting parties to defraud and defeat [her] obligation, but will fasten a trust upon the property involved.

Lawrence v. Ashba (1945), 115 Ind.App. 485, 493, 59 N.E.2d 568, 571. We assume, for the purposes of Edwards' contract claim, that the 1990 will is valid and that it revoked the 1974 will. The parties have done likewise, as they held the matter of the will contest in reserve pending resolution of the contract claim.

We will first determine whether a controversy has a risen "concerning the validity" of either will. See Briggs, 452 N.E.2d at 1012. In the second allegation of the complaint, Edwards raised a claim against the estate, founded on contract, as contemplated by I.C. 29-1-14 (claims against the estate). See Carroll v. Swift (1894), 10 Ind.App. 170, 172, 37 N.E. 1061, 1062. Cf. Manrow, 109 Ind.App. at 267, 33 N.E.2d at 372 (the matter of the contractual aspect of wills executed in accordance with a contract does not arise upon probate but may arise when the agreement is sought to be established as a claim against the estate) (quoting Atkinson on Wills at page 176). A claim against the estate created by the 1990 will does not concern itself with the legitimacy of the will itself and therefore cannot be said to constitute a controversy against the 1990 will's very validity. Further, Edwards' claim against the estate created by the 1990 will cannot be said to have established a controversy about the validity of a revoked will, assuming the 1990 will truly revoked the 1974 will. Any controversy about the validity of either of Velma's wills is reflected only in the first count of Edwards' complaint, which contested the validity of the 1990 will. The parties did not try this issue. Thus, because the 1990 will is assumed valid and is assumed to have revoked the 1974 will, no controversy has arisen about the validity of either will under the breach of contract claim.

We next determine whether a controversy has arisen "between claimants under" either the 1974 will or the 1990 will. See Briggs, 452 N.E.2d at 1012. Edwards claims that Velma breached her agreement with Warren not to revoke her 1974 will and, in essence, that the breach damaged Warren's nieces and nephews as third-party beneficiaries of the contract. See In re Estate of Von Wendesse (1993), Ind.App., 618 N.E.2d 1332 (discussing third-party beneficiary under a contract to make a particular disposition of property by will). As a part of the proof of this claim, Edwards relies upon the 1974 wills. This reliance does not, however, make Warren's nieces and nephews "claimants under the will" of 1974. If, as all assume on appeal, the 1990 will is valid, then it revoked the 1974 will. Warren's nieces and nephews cannot be said to be claimants under a revoked will but were, instead, claimants against the estate created by the 1990 will.

Likewise, as claimants against the estate created by the 1990 will, Warren's nieces and nephews were not claimants under either Velma or the 1990 will. Our supreme court has provided:

While the rule announced in Gurley v. Park [ (1893), 135 Ind. 440, 35 N.E. 279 (stating the general rule of privilege) ], supra, is doubtless the correct one in disputes between the client's representatives on the one hand, and strangers on the other, we do not think it applies where both the litigating parties claim under the client ... We regard this qualification of the general rule as a very material one, and, to the extent that the opinion in Gurley v. Park, supra, conflicts with the view we have expressed, that case is overruled.

Kern, 154 Ind. at 34-35, 55 N.E. at 1006. Edwards filed a claim, founded on contract, against the estate created...