Farner v. Farner

Decision Date17 July 1985
Docket NumberNo. 2-784A197,2-784A197
Citation480 N.E.2d 251
PartiesWray B. FARNER, Marian Fitzgerald, Dorothy Alice Crowe, Roy E. May, Dorothy G. Southard, Plaintiff-Appellants, v. Wray F. FARNER, Wray F. Farner, Executor of the Will of Carl J. Farner, Deceased, Robert May, Melvin May, Defendant-Appellees. 1
CourtIndiana Appellate Court

Thomas L. Williams, William C. Burns, Schultz, Ewan, Burns & Heid, Lafayette, for plaintiff-appellants.

George L. Hanna, Eric H. Burns, Hanna & Gerde, Lafayette, for defendant-appellees.

NEAL, Judge.


Plaintiff-appellants, Wray B. Farner (Mike), Marian Fitzgerald, Dorothy Alice Crowe, Roy E. May and Dorothy E. Southard, appeal from a negative judgment of the special judge presiding in the Tippecanoe Circuit Court in their action to contest the will of Carl J. Farner (Carl), which action was brought against Wray F. Farner (Bub) as sole beneficiary and executor of the will, Robert May and Melvin May. We affirm.


Carl died on January 27, 1981 at the age of 84 years, leaving no spouse, children or parents surviving. At his death, Carl had seven heirs at law: Mike, his brother; Marian Fitzgerald and Dorothy Alice Crowe, the daughters of his deceased brother Marion; and Robert May, Melvin May, Roy E. May and Dorothy Southard, the children of his deceased sister LaFerne May. If Carl had died intestate, Bub would have received nothing as his father, Mike, survived Carl. On February 15, 1973 Carl executed his Last Will and Testament, in which he named his nephew, Bub, as executor and sole beneficiary. This will was admitted to probate in the Tippecanoe Circuit Court following Carl's death and Bub was appointed executor of the estate.

Carl was born and resided in Indiana until he joined the U.S. Navy at the age of twenty. In 1947, Carl, then fifty, retired from the Navy and made his home in San Diego, California. He was a healthy, active member of his community until 1964, when he underwent surgery for a ruptured aorta. Although he recovered well from surgery, Carl's physical activity became Soon after his surgery, Carl and his wife dissolved their marriage and Carl moved into an apartment by himself. After his divorce, Carl began to visit his family in Indiana more often. Throughout most of his life he had stayed in contact with his nieces and nephews, however, Carl had not spoken to his only living brother, Mike, since 1947.

more limited thereafter; however, generally he was still alert and active for a man of sixty-seven. His nieces, Marion Fitzgerald and Dorothy Crowe, said he seemed somewhat slower and more easily irritated.

From the late 1960's until 1972, Carl drove his own automobile to Indiana frequently and developed the habit of staying with Bub and his family. Carl made Bub's home his "base of operations" and would then visit with his other nieces and nephews, but not with Mike. After making the trip from California to Bub's in the spring of 1972, Carl decided he could no longer drive and gave his 1964 Ford to Bub and his wife. Also that spring Bub convinced Carl to visit with Mike, but this did not serve to improve their relationship, which had been strained and bitter for 25 years.

Carl left Indiana by bus and stopped in Oklahoma to visit a first cousin, Pauline Landes, for a few days on his way to California. Pauline said Carl seemed competent and self-sufficient at that time in 1972. She found him to be jovial and interested in people and the world, as he had always been. At this time, and during a prior visit in 1970, Carl expressed his wish that Bub receive his property upon his death as he was very fond of Bub and his wife, and believed they could use the financial assistance to raise and educate Bub's three sons. Later that summer while visiting a nephew by marriage, Gerald Sutherland, Carl repeated his intention to leave everything to Bub, mentioning his other relatives by name and explaining why they were to receive nothing.

Carl returned to Bub's home in Indiana during the fall of 1972 and for Christmas that year. Less than one month later, in January of 1973 Carl took a bus back to Bub's and stayed there until February 17, 1973. On February 13 Bub drove Carl to the office of David Crouse, an attorney at law, for the purpose of making Carl's Last Will and Testament. Outside the presence of Bub, Carl discussed with Crouse the extent of his property, the identity of his bank accounts and his desire to leave everything to Bub, who was also to be the executor of his estate. Crouse drafted a will to accomplish this. Crouse testified that Carl appeared to be of sound mind to make a will; that he understood what his property included and who his relatives were, both on February 13 and February 15 when Carl returned to his office to execute his will. On the 15th, also outside Bub's presence, Crouse read the will he had drafted for Carl with him and explained it to him. Carl reiterated his wish that Bub receive all of his property at his death, whereupon he signed and executed the will drafted by Crouse in the presence of Crouse and his secretary as subscribing witnesses.

Two days after executing his will, Carl left Indiana by bus en route to California. Although the exact dates are in confusion, soon after Carl arrived in San Diego he was taken by authorities to a Veteran's Administration (V.A.) Hospital in a disoriented and confused state. The hospital engaged the Adult Protective Services Agency (Agency) to assume responsibility for Carl's care, and it placed him in a private boarding house where he remained until March 2, 1973. Following a dispute with a fellow boarder there, and a few subsequent short moves, Carl was admitted to an institution in National City, California; Hillcrest Manor. There, Carl's condition was diagnosed as "organic brain syndrome, secondary to cerebral arteriosclerosis". Carl was agitated and unhappy with institutional life at Hillcrest, but remained there until March 26, 1973, when Bub flew to California to make arrangements for him to return to Indiana.

Before leaving for Indiana, Bub accompanied Carl to Silver Gate Savings and Loan in San Diego, where Carl had two Also on March 27, Bub took Carl to the V.A. Hospital in Marion, Indiana where he was to reside until his death in 1981. Carl was 76 years old when admitted and was diagnosed as having "psychosis with cerebral arteriosclerosis", a slowly degenerative condition. His physical health was generally consistent with his age but his mental state fluctuated. Although there were times when Carl was alert and outgoing, as he had been in his early life, there were also occasions when he was confused, irritable and inappropriate in his behavior. Bub and Gerald Sutherland often visited Carl in the hospital between 1973 and 1976, and testified Carl remained alert and interested in the world around him until sometime in 1975. During the first three years of his stay at the Marion V.A. Hospital, Carl was allowed to leave the grounds to take recreational trips with Bub and his family. He also remained self-sufficient in regard to his personal needs during this period. But Carl's condition continued to deteriorate and from 1976 until his death he was bedridden and did not recognize his family.

accounts. One of these accounts was a term account which Carl had deposited as a joint account with Bub, unbeknown to Bub. This account was left with Silver Gate but the other account, a regular savings account, was closed out. The balance of this account, minus airfare to Indiana, was deposited by Carl in a joint account with Bub at an Indiana bank the following day.


Mike and the other appellants list several issues which, as restated, are:

I. Whether the appellants, who are appealing a negative judgment which was rendered on the record and transcript of the evidence, are entitled to have the appellate court reweigh the evidence on appeal.

II. Whether the trial court's judgment is contrary to law or whether the findings of fact are supported by the record.

III. Whether the appellants satisfied their burden of proving Carl was of unsound mind to execute a will in February of 1973.

IV. Whether the trial court erred in admitting the testimony of Gerald Sutherlin, a lay minister of the Lutheran Church, as to conversations he had with Carl and his opinion as to Carl's competency.

V. Whether the trial court erred in admitting the testimony of Pauline Landes and Gerald Sutherland as to statements made to them by Carl prior to the execution of his will regarding his intended disposition of his property.

VI. Whether the appellants satisfied their burden of proving Carl executed his will under undue influence.

VII. Whether the trial court erred in refusing to grant a new trial on the basis of newly discovered evidence consisting of an outpatient card from a San Diego V.A. Hospital allegedly dated February 16, 1973.


This cause was heard and transcribed by the Tippecanoe Circuit Court. Pursuant to Ind.Rules of Procedure, Trial Rule 53.1 and 53.2 a special judge was appointed to render a decision based on the stipulated record and transcript of the evidence without hearing any new evidence. Appellants contend this situation creates an unlimited scope of appellate review, as we are in the same position as the trial court to judge the evidence from the cold record.

We first note the burden of proof in a will contest is on the opponent of the will. IND.CODE 29-1-7-20; Hinshaw v. Hinshaw, (1962) 134 Ind.App. 22, 182 N.E.2d 805. Thus, at the trial court level appellants had the burden of proof on the issues they raised; undue execution, undue influence and unsound mind to create a valid will. The special judge found they had not satisfied their burden and entered a negative judgment, which is reversible only upon an error of law. Arnold v. Parry, (1977) 173 Ind.App. 300, 363 N.E.2d 1055. Appellants now want this court...

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