Estate of Edwards, Matter of
| Decision Date | 20 November 1990 |
| Docket Number | No. 48A02-8910-CV-528,48A02-8910-CV-528 |
| Citation | 562 N.E.2d 763 |
| Parties | In the Matter of the ESTATE OF Ramie EDWARDS, Deceased. Doritha MASON and Myrtle Houchins, Appellants (Respondents Below), v. James EDWARDS and Nellie L. Edwards Appellees (Petitioners Below). 1 . |
| Court | Indiana Appellate Court |
Jesse L. Coleman, Indianapolis, for appellants.
Max Howard, Anderson, for appellees.
Doritha Mason and Myrtle Houchins, the decedent's niece and sister (collectively referred to as Houchins) appeal a judgment in favor of James Edwards and Nellie Edwards (the Edwards) on the estate's and Houchins' petitions to determine heirship and the Edwards' verified petition to establish paternity, which were consolidated for trial.
We affirm.
Two issues emerge in this appeal: the propriety of denying, on the grounds of untimeliness and waiver, Houchins' Ind. Trial Rule 12(B)(6) motions to dismiss for failure to state a claim upon which relief could be granted, made orally at trial before any evidence had been presented and after the Edwards' case-in-chief; and, the sufficiency of the evidence to sustain the finding that the Edwards were the decedent, Ramie Edwards', sole heirs-at-law.
The record reflects that both motions to dismiss are premised upon IND.CODE 31-6-6.1-6(b), the statute of limitations for establishing paternity for purposes of support. At the hearing on the first motion, the parties also argued the applicability of I.C. 29-1-2-7, the probate code section directed at the determination of heirship. Houchins contends in this appeal that upon the face of the petition to establish paternity, the Edwards have failed to state a claim, both because of I.C. 31-6-6.1-6(b) and on the alternative ground that the Edwards have not met the prerequisites for heirship contained in I.C. 29-1-2-7. Hence, she does not argue that the petitions to determine heirship should be dismissed; rather, her intent is to obtain a favorable judgment on her petition by showing that the Edwards are not heirs. The record is therefore sufficient for appellate review of both grounds.
As a general rule, reliance upon a statute of limitations as a bar is an affirmative defense which must be pleaded in a responsive pleading. T.R. 8(C); Nichols v. Amax Coal Co. (1986), Ind., 490 N.E.2d 754, 755. However, matters in bar such as the defense of the statute of limitations may be raised by motion to dismiss for failure to state a claim for relief, if such matters appear on the face of the complaint. Id.; Monsanto v. Miller, (1983), Ind.App., 455 N.E.2d 392, 398; Middelkamp v. Hanewich (1977), 173 Ind.App. 571, 364 N.E.2d 1024, trans. denied. A T.R. 12(B)(6) motion, filed after the pleadings are closed, which tests the sufficiency of the complaint, will be treated as a motion for judgment on the pleadings under T.R. 12(C) and determined in the same manner as a motion brought pursuant to 12(B)(6). DeHart v. Anderson (1978), 178 Ind.App. 581, 383 N.E.2d 431.
T.R. 12(H)(2) expressly permits the defense of failure to state a claim made by motion for judgment on the pleadings to be raised at a trial on the merits. Indeed, this court has concluded that such a motion made after the presentation of evidence is timely. In the Matter of the Estate of Carroll (1982), Ind.App., 436 N.E.2d 864.
The trial court cited two cases in support of its ruling that the motion was untimely and the defense waived: Bennett v. Bennett (1977), 172 Ind.App. 581, 361 N.E.2d 193 and Roe v. Doe (1972), 154 Ind.App. 203, 289 N.E.2d 528. From these cases, we derive the principles, which predated the advent of our trial rules, that dilatory pleas must be filed at the earliest opportunity and that a statute of limitations defense may be waived if not raised and pleaded.
We agree with Houchins, however, that these principles do not govern the case at bar. As the authorities cited above indicate, a statute of limitations defense no longer must be affirmatively pleaded; it may be raised by a 12(B)(6) motion as it was here. Bennett has little precedential value because in that case the statute of limitation defense was neither pleaded nor raised but stated as an afterthought in the motion to correct error. The waiver found in Bennett can therefore be attributed to the former, long-standing rule that matters raised for the first time in the motion to correct error are deemed waived.
Bennett also indicates that a party may, by course of conduct, place himself in a position where equity will not permit the assertion of the expiration of a statute of limitations as a defense. 361 N.E.2d at 197. This rule applies, however, only when the party to be charged engages in conduct calculated to lead the other party to inaction, i.e. when the elements of equitable estoppel have been met. Collins v. Dunifon (1975), 163 Ind.App. 201, 323 N.E.2d 264 (cited in Bennett, 361 N.E.2d at 197). See, e.g., Kroslack v. Estate of Kroslack (1987), Ind., 504 N.E.2d 1024; In Re the Marriage of Murray (1984), Ind.App., 460 N.E.2d 1023. There is no indication in the record Houchins did anything to induce the Edwards' purportedly late filing. Preparation for trial alone, without resulting prejudice, will not suffice. See Kohlman v. Finkelstein (1987), Ind.App., 509 N.E.2d 228, 230-31, trans. denied.
Consequently, the trial court's ruling cannot be sustained on the grounds of untimeliness and waiver. However, there really is no viable issue with respect to the time limitation found in I.C. 31-6-6.1-6(b). The statutes relating to proof of heirship and inheritance rights have nothing to do with suits against putative fathers to obtain support for illegitimate children. They are not in pari materia. Solomon v. Fenton (1969), 144 Ind.App. 100, 244 N.E.2d 228, trans. denied. The denial of Houchins' 12(B)(6) statute of limitations motion was therefore proper.
Alternatively, Houchins argues that the Edwards are unable to prove any set of facts entitling them to relief because their complaint does not show on its face that the statutory prerequisites for heirship have been met. As Houchins argues, the rights of heirs are determined by the statutes of descent in force at the time of the intestate's death. Scott v. Scott (1958), 238 Ind. 474, 478, 150 N.E.2d 740, 742; In Re the Estate of Schick (1971), 149 Ind.App. 549, 563, 274 N.E.2d 291, 299, trans. denied. Ramie Edwards died intestate July 12, 1988. The statute in effect at the time provided:
(b) For the purpose of inheritance (on the paternal side) to, through, and from a child born out of wedlock, the child shall be treated as if the child's father were married to the child's mother at the time of the child's birth, if:
(1) the paternity of the child has been established by law:
(A) during the father's lifetime; or
(B) within five (5) months after the father's death; or
(2) the putative father marries the mother of the child and acknowledges the child to be his own.
On its face, the statute applies when paternity has been established by law during the father's lifetime or within five (5) months after the father's death. The nature of the action is not controlling as long as a finding of paternity is necessary for the result reached and the quantum of proof establishing such paternity meets the standard set forth in the inheritance statute, i.e., that the mother's testimony be corroborated by other evidence or circumstances. Burnett v. Camden (1970), 253 Ind. 354, 357, 254 N.E.2d 199, 201, cert. denied, 399 U.S. 901, 90 S.Ct. 2202, 26 L.Ed.2d 556. It is not disputed by the Edwards that, until the filing and determination of this action, paternity had not been established in a judicial proceeding. The question then from Houchins' perspective is simply whether posthumous filing alone, within the five-month period following the father's death, satisfies the statute.
The Edwards argue that the 1989 amendment, which would permit a paternity action to be commenced within five months of the intestate's death, should be and was properly applied retroactively. Having looked to the statute and amendment, the circumstances under which they were enacted, the old law on the subject, and the evils and mischiefs to be remedied, we agree with the trial court that the legislature intended the amendment to apply retroactively to effectuate its original intent.
Our goal in interpreting and applying any statute is to ascertain legislative intent. As a general rule, a statutory amendment which changes the language of a prior statute indicates a legislative intention that the meaning of the statute has been changed and raises a presumption that the legislature intended to change the law. However, the presumption will not apply if it appears that the amendment was made only to express the original intention of the legislature more clearly. Pike County v. State ex rel. Hardin (1984), Ind.App., 469 N.E.2d 1188, 1194; Lake County Beverage Co. v. 21st Amendment, Inc. (1982), Ind.App., 441 N.E.2d 1008, 1011, trans. denied.
At common law, a child born out of wedlock had no inheritable blood. The statutes antedating I.C. 29-1-2-7 were designed to ameliorate this condition. Wilson v. Bass (1918), 70 Ind.App. 116, 120, 118 N.E. 379, 380, trans. denied. Illegitimate children acknowledged during their father's lifetime were permitted to inherit his estate. See, e.g., Acts 1901 p. 288 (Burns' Ann.Stat. Sec. 2630a 1901).
In 1953, with enactment of the probate code, the statutory preconditions for inheritance changed. An illegitimate child could inherit "as if he were the legitimate child of his father, if but only if, (1) the paternity of such child has been established by law, during the father's lifetime, or (2) if the putative father marries the mother of the child and acknowledges the child to be his own." By attaching these conditions to inheritance, the State sought to minimize fraudulent claims. Camden, 254 N.E.2d at 202. The requirement that...
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