Garwood's Estate, Matter of
| Decision Date | 05 February 1980 |
| Docket Number | No. 280,280 |
| Citation | 400 N.E.2d 758,272 Ind. 519 |
| Parties | In the Matter of ESTATE of Martha Ellen GARWOOD, Deceased. S 26. |
| Court | Indiana Supreme Court |
This case comes to us on a petition to transfer from the Fourth District Court of Appeals. Transfer petitioners were the appellants in the Court of Appeals and were heirs of the estate of Martha Ellen Garwood in the trial court.
The last will and testament of Martha Ellen Garwood, Deceased, was admitted to probate in the White Circuit Court on June 5, 1970. On that date, Paul J. Garwood, son of the deceased, and Lawrence Sommers, son-in-law of the deceased, qualified as co-executors of the estate.
On March 8, 1971, Dean Garwood, one of the heirs and also a son of Martha Ellen Garwood, filed a petition to set aside a contract for the sale of estate property. The contract, which had been entered into on November 10, 1970, purportedly sold the real estate in question in this appeal to co-executor, Paul Garwood. The contract was entered into between Paul Garwood, individually, and Paul Garwood and Lawrence Sommers as co-executors. Thereafter, Paul Garwood filed a motion to dismiss the petition to set aside the contract alleging, inter alia, that the sale was not conducted as an estate sale under the terms of the probate code, or by order of the probate court, but was a direct sale by the executors under a testamentary power. Previous to the time that Paul Garwood filed his motion to dismiss the petition to set aside the contract, he moved for appointment of a special administrator and the court appointed one Marvin Stewart. On April 13, 1971, special administrator Marvin Stewart requested authority to convey the subject real estate to Paul Garwood pursuant to the terms of the contract of November 10, 1970, upon receipt of the balance of the purchase price. The property had been appraised at $92,200. The contract provided that Paul Garwood was to pay the sum of $92,001, with a down payment of $501 and further provision for the payment of the balance. Along with the special administrator's request to convey the subject property, was a petition to dismiss the petition of Dean Garwood to set aside the contract of sale. The court, on that same date, entered an order authorizing the special administrator to execute a deed conveying the subject real estate to Paul Garwood upon receipt of the balance of the purchase price. Subsequently, on June 29, 1971, the other co-executor, Lawrence Sommers, moved to expunge the court's order of April 13, 1971, which authorized the special administrator to convey the property, alleging, inter alia, that there had been no notice of hearing on the special administrator's petition for authority to convey the property and that no hearing had been held on the petition of Dean Garwood to set aside the contract. The court sustained this petition of co-executor Lawrence Sommers and entered an order expunging its previous order of April 13, 1971.
Some questions were raised as to the authority of Marvin Stewart to serve as special administrator and he resigned as such on December 17, 1971. The court entered an order removing Paul Garwood as executor of the estate on April 25, 1973, due to his adverse interest with respect to the estate which had to do with this contract, the fact that he filed a claim against the estate in December, 1970, and the fact that he filed a contest to the will. On May 16, 1973, the court dismissed the pending petition to set aside the contract for sale of the subject realty. However, on May 30, 1973, the Court entered an order determining that among the issues remaining in the estate was that of the contract of purchase of real estate by Paul J. Garwood. Lawrence Sommers resigned as co-executor on September 7, 1973, and the court appointed Paul D. Ewan as administrator with the will annexed.
On November 28, 1973, Paul Ewan, as successor personal administrator, filed the petition to determine the rights of possession and title to the subject real estate. Paul Garwood filed a motion to dismiss this petition on March 20, 1974. Subsequently, the Honorable Maurice T. Zerface, disqualified himself as judge in this cause and the Honorable Norman L. Kiesling was appointed Special Judge.
On December 13, 1974, Frances Rose Garwood, Dorothy M. Sommers and Zora Fae Swing, filed objections to the November, 1970 contract for sale of the subject realty. Their objections were stated as follows:
"The basis of the objection by these heirs is that the purchase price of said property in the amount of Ninety Two Thousand One and 00/100 ($92,001.00) Dollars is less than the amount of the bid of C. Dean Garwood and for the further grounds that the Contract at the time of its execution was void because a co-executor, Paul J. Garwood, acting in his fiduciary position as co-executor was both a seller and a purchaser under said Contract.
Said heirs further join in the Petition of Paul D. Ewan to Determine the Right of and Possession and Title to the Real Property previously filed on November 28, 1973.
WHEREFORE, Francis Rose Garwood, Dorothy M. Somers and Zora Fae Swing respectfully request that the Court hold that the Contract of November 10, 1970 be considered null and void and of no legal effect."
As indicated in these objections, these parties are all heirs of Martha Ellen Garwood. On May 14, 1975, the trial court heard the petition and objections filed against the contract in question and made and entered the following judgment:
"JUDGMENT ON PETITION AND OBJECTIONS TO
The Court having heretofore entered his findings on Petition and Objections filed against the contract for sale of real estate in this cause, now makes and enters judgment for the respondent, Paul J. Garwood, as follows:
(1) That the contract for the sale and purchase of real estate in this estate entered into on the 10th day of November, 1970, is hereby declared and adjudged to be valid and enforceable under the express contract terms thereof.
(2) Title and possession under the same is adjudged to be vested in the purchaser, Paul J. Garwood, under the express terms of said Contract.
(3) The Special Administrator with the Will annexed is, as a part of this judgment, instructed and ordered to execute, transfer and deliver to the purchaser an administrator's deed concurrently with the delivery of the balance of purchase price within a reasonable time, subject to title and loan requirements or within days, whichever occurs first.
(4) Costs adjudged against Objectors. Judgment so ordered.
Following this judgment the appellants filed a motion to correct errors which was overruled by the trial court. The appeal was perfected to the Fourth District Court of Appeals and on November 30, 1978, the Court of Appeals rendered a decision, sua sponte, dismissing the appeal on the grounds that the trial court's decision was not a final appealable judgment. In re Estate of Garwood, (1978) Ind.App., 382 N.E.2d 1020. The Court of Appeals determined that the decision of the trial court was, in fact, an interlocutory order and that, therefore, pursuant to Ind.R.App.P. 3(B) the appellants were required to file the record with the Clerk of the Court of Appeals within thirty (30) days of the ruling on the interlocutory order. Since the appellants treated the decision as a final judgment, their pursuit of remedies by their filing of a motion to correct errors and then proceeding to appeal resulted in extending the time of filing the record beyond thirty days. There was no question raised by the appellants or the appellees in any of the issues presented to the Court of Appeals in their briefs as to the nature of the entry of the trial court being an interlocutory order rather than a final appealable judgment. The Court of Appeals interpreted this entry to be an interlocutory order rather than a final appealable judgment and accordingly dismissed the appeal sua sponte. We find that the Court of Appeals was in error in so doing and therefore vacate their opinion.
In dismissing this appeal the Court of Appeals relied on the opinions formerly entered by this Court in Kiradlo v. Pisula, Administrator, (1952) 232 Ind. 659, 115 N.E.2d 744, and Campbell, et al. v. Union Trust Co., et al., (1949) 227 Ind. 692, 88 N.E.2d 560. Both of these cases concern authority given by the probate court to the personal representative by interlocutory order for permission to sell real estate in the estate for the purposes of paying debts and to discharge legacies given by the will. Campbell had established the general rule, followed by Kiradlo, that: "An order for the sale of real estate to make assets for the payment of liabilities of an estate is an interlocutory order." Kiradlo, supra, 232 Ind. at 660, 115 N.E.2d at 744. The sale and order in question here were not made to pay liabilities of the estate. That would be interlocutory to the extent that any sale proposed by the personal representative in compliance with that order would have to be approved by the court. This procedure would give any parties an opportunity to appear before the court and to present arguments and evidence as to the propriety of accepting a particular sale and purchase which would then be followed by a court's order of sale and delivery of deed upon delivery of purchase price, if the court, did, in fact, approve the particular sale. In the case before us, the court heard all the parties on the issue of approving the sale on the contract entered into and approved said sale, ordering a delivery of deed and payment of purchase money. Appellant's argument is well taken that this was a judgment of the court on one...
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