Haskett v. Haskett, 2--174A20

• Decision Date: 05 May 1975
• Docket Number: No. 2--174A20,2--174A20
• Parties: Max HASKETT, Executor of the Estate of Clyde C. Haskett, et al., Defendants-Appellants, v. Harry G. HASKETT, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 612

327 N.E.2d 612

164 Ind.App. 105

Max HASKETT, Executor of the Estate of Clyde C. Haskett, et al., Defendants-Appellants, v. Harry G. HASKETT, Plaintiff-Appellee.

No. 2--174A20.

Court of Appeals of Indiana, Second District.

May 5, 1975.

Rehering Denied June 9, 1975.

Daniel J. Harrigan, Bayliff, Harrigan, Cord & Maugans, Kokomo, Stanley M. Herbert, Tipton, for defendants-appellants.

Joe Heaton, Tipton, for plaintiff-appellee.

SULLIVAN, Presiding Judge.

The legatees under the will of decedent Clyde C. Haskett (Legatees) appeal from a judgment by the trial court which determined appellee Harry G. Haskett (Harry) to be the son and heir of Clyde, ¹ and further determined that Harry was entitled to share in the estate as a pretermitted heir. ²

The following facts are uncontested: Harry Haskett was born May 3, 1905 in Tipton County. His birth certificate recites that his father was Clyde Haskett, and that his mother was Effie Pore. Clyde and Effie were married on June 6, 1908, as is revealed by their marriage certificate. A daughter, Margaret, was born to Clyde and Effie about 1914. While Harry Haskett was still in his teens, he left home and thereafter visited infrequently with his family. Letters, too, became infrequent and his last correspondence with his parents was in 1949 or 1950.

Effie Pore died in 1963; daughter Margaret died in 1966; and Clyde Haskett passed away on December 12, 1968. Clyde's will which had been executed on October 25, 1968 did not mention Harry, leaving the estate to certain named legatees Max Haskett, Clyde's nephew, was one of the legatees and was named as executor.

The will was admitted to probate in Tipton Circuit Court on December 19, 1968. Harry returned to Tipton County and on June 6, 1969, filed a complaint to contest Clyde's will, alleging unsoundness of mind and improper execution.

Subsequently, on February 11, 1972, Harry filed a petition to determine heirs, alleging that he was the natural son of Clyde and Effie, that his parents had thereafter married, that Clyde had acknowledged his paternity, and finally that Clyde had believed Harry to be dead when he executed his will. Harry then dismissed the will contest.

Both parties made motions for Summary Judgment and submitted accompanying affidavits.

The affidavits introduced by Harry contain, inter alia, the following pertinent matter:

As the landlord of Clyde and Effie, Earl M. Hoover heard Clyde openly and notoriously acknowledge Harry to be his natural son, calling Harry 'my son, our son, my boy' innumerable times.

David Bussler, Margaret's husband and Clyde's son-in-law, heard conversation between Margaret and Clyde in 1959 or 1960 in which both indicated or stated their conclusion that Harry was dead.

Reverend Charles Jennings mentioned Harry to Clyde on an occasion. Clyde's response indicated that he thought Harry was 'most likely dead' since he had not been heard from in a long time.

Ruth Maines, Clyde's niece, assumed Clyde thought Harry to be dead because Clyde stated that he didn't know what to do with an insurance policy he had on Harry.

Legatees introduced affidavits from persons who were acquainted with Clyde in his last years. These affidavits stated that Clyde had never mentioned a son to the affiants.

Also submitted at this time were Harry's birth certificate ³ and the marriage certificate of Clyde and Effie Haskett. These were entered in the record as 'admitted into evidence without further proof.'

After a hearing, the trial court entered, on June 9, 1972, a finding that Harry was 'a son and heir at law of Clyde Haskett.'

On October 27, 1972, legatees filed a motion to dismiss the proceedings, alleging lack of subject matter jurisdiction in that the petition to determine heirship was filed subsequent to the expiration of the six month limitation on actions to contest a will. The motion was overruled.

The matter proceeded to trial on the question of whether or not Clyde believed that Harry was dead at the time the will was executed. The pre-trial order stated that the affidavits were 'offered, introduced and received in evidence in this cause.' Evidentiary objections and rulings were noted at the time both attorneys signed the pre-trial order.

At trial itself, the affidavits were not additionally or formally introduced or admitted into evidence. Testimony was heard and a deposition of David Bussler, Clyde's son-in-law, was introduced and admitted. Contained therein was the following passage:

'Q. Now, from your observation and knowledge of Clyde Haskett have you an opinion as to whether or not Clyde Haskett of your own knowledge thought his son was alive or dead?

A. I believe _ _

Q. Yes or no answer Dave there. Either you do or you don't have an opinion.

A. Yes. I do.

Q. What is your opinion then?

A. I believe that the man actually thought his son was dead.'

At the trial legatees claimed Bussler's conclusion to be objectionable as the opinion of a lay witness.

On September 25, 1973, the trial court entered judgment in favor of Harry Haskett, determining that he was a son and heir at law of Clyde C. Haskett, and that Clyde Haskett made his will under the belief that his child, Harry Haskett, was dead and therefore failed to provide for him in his will.

The disappointed legatees argue five contentions:

1. The trial court improperly granted a partial summary judgment upon the issue of Harry's status as an heir.

2. The trial court erred in overruling appellant's Motion to Dismiss grounded on failure to satisfy the six month limitation for will contests.

3. The trial court committed reversible error by considering affidavits which were not re-introduced or admitted into evidence at the hearing.

4. The trial court improperly considered the opinion evidence of David Bussler.

5. The decision of the court was not sustained by sufficient evidence.

PARTIAL SUMMARY JUDGMENT ISSUE NOT PRESERVED AS ERROR

The purported issue concerning a 'partial summary judgment' was not properly raised nor preserved in the trial court and accordingly is not before us.

Careful examination of the Motion to Correct Errors discloses no allegation that the trial court improperly granted a motion for summary judgment as to a disputed fact, i.e., Clyde's acknowledgement of paternity. Such assertion is necessary in order to properly present error on appeal. Ind. Rules of Procedure, Trial Rule 59(G), Richards v. Crown Point Community School Corp.

(1971), 256 Ind. 347, 269 N.E.2d 5

. SIX MONTH FILING

LIMITATION UPON WILL CONTESTS NOT

APPLICABLE TO PETITIONS TO

DETERMINE HEIRSHIP

Legatees contend that the petition to determine heirship was actually an action to contest a will which, pursuant to Ind.Ann.Stat., § 29--1--7--17 (Burns Code Ed.) must be filed within six months after a will is offered for probate. In the alternative, legatees allege that the will contest statute and the petition to determine heirship statute. Ind.Ann.Stat. § 29--1--6--6 (Burns Code Ed.) should be construed in pari materia, and that therefore the six month limitation of the will contest statute should be read into the statute governing petitions to determine heirship. Ind.Ann.Stat. § 29--1--7--17, supra, makes clear, and judicial construction has confirmed, that a will may be contested thereunder for only two causes: (1) unsoundness of mind of the testator, and (2) undue execution of the will. Jarrett v. Ellis (1923), 193 Ind. 687, 141 N.E. 627. ⁴ Clearly the petition to determine heirship is not built upon such foundations.

The petition of a pretermitted heir is not a will contest, nor does it seek to void the will. See Farber's Ex'r v. Farber (1940), 282 Ky. 373, 138 S.W.2d 986; 26A C.J.S. Descent and Distribution § 45. The pretermission statute has only the effect of removing the heir's intestate share from the testate property in the estate. The will is therefore rendered inoperative pro tanto but is operative in all other respects. The petition herein cannot be classed as a complaint to contest a will.

The petition was made pursuant to Ind.Ann.Stat. § 29--1--6--6, (Burns Code Ed.), which reads in part:

'(a). At any time during the administration of a decedent's estate, the personal representative of any interested person may petition the court to determine the heirs of said decedent and their respective interests in the estate or any part thereof. Upon the filing of the petition the court shall fix the time for the hearing thereof, notice of which shall be given to all persons known or believed to claim or have any interest in the estate or any part thereof as heir or through an heir of the decedent. In addition, notice by publication shall be given to all unknown heirs of the decedent.' (Emphasis supplied)

Legatees assert that the six month limitation must be inserted in the above statute under the doctrine of pari materia. However, the doctrine, as with other tools of statutory construction, is to be utilized only when the language of the questioned statute is unclear or ambiguous. Indiana State Highway Commission v. White (1973), Ind., 291 N.E.2d 550; Grody v. State (1972), 257 Ind. 651, 278 N.E.2d 280.

Even were we to view the language 'At any time during the administration of a decedent's estate' as ambiguous or unclear, we cannot say that the will contest statute is a statute which has 'the same purpose or object' (City of Muncie v. Campbell (1973), Ind.App., 295 N.E.2d 379) as the petition to determine heirs provision. Thus, the doctrine of pari materia has no application to the case before us.

The petition was timely filed and the trial court properly overruled appellant's motion to dismiss.

TRIAL COURT DID NOT ERR IN CONSIDERING THE AFFIDAVITS

Legatees contend that the affidavits supportive of Harry's claim were not introduced or admitted into evidence at the trial and therefore could not be considered by the trial court or by this court.

Neither the motion to correct errors nor the accompanying memorandum makes...