Heath v. Strunk

• Decision Date: 08 May 1972
• Docket Number: No. 1271A280,1271A280
• Citation: 152 Ind.App. 80,281 N.E.2d 897
• Parties: Judith Marts HEATH et al., Plaintiffs-Appellants, v. Debbie STRUNK et al., Defendants-Appellees.
• Court: Indiana Appellate Court

Page 897

281 N.E.2d 897

152 Ind.App. 80

Judith Marts HEATH et al., Plaintiffs-Appellants, v. Debbie STRUNK et al., Defendants-Appellees.

No. 1271A280.

Court of Appeals of Indiana, First District.

May 8, 1972.

William P. Foreman, Evansville, for appellants; Bamberger, Foreman, Oswald & Hahn, Evansville, of counsel.

Charles F. Cremer, Jr., William M. Evans, Indianapolis, for appellees; Bose, McKinney & Evans, Indianapolis, J. Waldo Hendrickson, Boonville, of counsel.

LOWDERMILK, Judge.

On October 5, 1969, Georgia M. Beeler died at the age of 75 years, a resident of Warrick County, Indiana. She was a widow, her husband, Carl, having predeceased her in 1964. The subject of this appeal is her will, which was proved and admitted to probate by the Warrick Circuit Court in the form of the executed carbon copy on October 15, 1969. The original will was found after the decedent's death. At some unknown time and by some unknown person it had been torn into more than six pieces.

Delmar Hodges qualified and was appointed executor of the will on October 15, 1969.

The decedent's sole heirs at law are Judith Marts Heath, Leona Marts Donald, and Mildred Marts Meyer, appellants herein. They were nieces of the decedent, being descendants of the decedent's deceased brother, Herbert L. Marts. The defendants-appellees are beneficiaries under the will of the decedent and the defendant-appellee Delmar Hodges is also named therein as executor. Plaintiff-appellant Judith Marts Heath is also a beneficiary named in the will. Her specific bequest was shares of stock.

Trial was to the court without a jury. In trial plaintiffs-appellants contended that that the will of the decedent, dated October 4, 1968, was revoked and that the lower court erred in probating a copy of said will and that such probate should be revoked and the appointment of the executor revoked. Plaintiffs-appellants further contend the original will was revoked by tearing and mutilation.

Prior to the commencement of the trial plaintiffs-appellants filed a written request for special findings of fact and conclusions of law thereon on March 31, 1971.

Mrs. Beeler had resided alone in her four room home in Boonville, Indiana, from and after her husband's death. Her estate consisted of the home and approximately $50,000 in cash and personal effects. She made some small bequests and devised the residue of her estate to her friend, Evelyn Howard, who had been her good friend for 20 years and for the last five years of decedent's life had been her constant companion, attending to her personal needs day after day.

The will in question was executed on October 4, 1968, nearly a year before the decedent's death. The attorney, in preparing the will, also prepared a carbon copy which was duly executed at the time of the execution of the original will. The executed carbon copy was left with her attorney and the original was taken with her, presumably to be kept at home.

On Monday, September 29, 1969, Mrs. Beeler became ill and was taken to St. Mary's Hospital in Evansville, where she remained bedfast until her death the following Sunday, October 5, 1969. During that period and while the decedent was in the hospital the appellant, Judith Marts Heath, having a key, went to Mrs. Beeler's home several times. During the trial of the cause, in contesting the will, there was conflicting testimony as to the number of visits the appellant Heath made to the decedent's home and as to the dates and times of day on which these visits were made. One witness testified that the automobile of appellant Judith Marts Heath appeared at the decedent's home on each and every one of the evenings that the decedent was in the hospital and that the blinds in the house were pulled down during these evening visits but were re-opened upon her leaving the premises. There was also evidence that during a day time visit of appellant Heath to decedent's home while decedent was in the hospital the witness, who was concerned over the decedent's health and had noticed that someone was apparently in the home, entered the small four room house through an open back door and discovered that appellant Judith Marts Heath was going through things in the bedroom.

Between the time the decedent executed her will on October 4, 1968, and her death on October 5, 1969, there was no evidence in the record that anyone had seen her will; that during this time she did not consult with her attorney, Mr. Waldo Hendrickson. There was no evidence that decedent intended to revoke her will or that she or anyone in her presence or at her direction tore up the will.

Ten days after Mrs. Beeler's death appellant Judith Marts Heath and her mother, on October 15, 1969, went to the office of attorney Waldo Hendrickson to see about her estate and while there told Mr. Hendrickson that the decedent did not have a will. They were contradicted by Mr. Hendrickson, who explained that he had an executed carbon copy of her will, which he produced, explained its provisions, and recommended they get in touch with Delmar Hodges, the named executor.

Later the appellant Heath, her mother, and the funeral director who conducted Mrs. Beeler's services and who had a key to the decedent's home, all went to decedent's home. Appellant Heath told the funeral director she wanted to look for a will. All three went into the home and the funeral director went to the bedroom where he found in a desk drawer an envelope marked 'WILL.' This envelope so marked did contain a will that had been torn into several pieces.

This torn instrument and envelope marked 'WILL' was delivered to attorney Hendrickson, who then caused the executed carbon copy thereof to be probated in the Warrick Circuit Court. Thereafter, on April 14, 1971, plaintiffs-appellants timely filed a will contest, alleging that the decedent had revoked her will. It is from the decision of the Warrick Circuit Court upholding the validity of the will that appellants have brought this appeal.

The special findings of fact and conclusions of law, together with the judgment thereon, are in the words and figures as follows, to-wit:

'SPECIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

'The court, pursuant to the written request of the plaintiffs heretofore filed prior to the hearing and trial of this cause and prior to the admission of any evidence, now makes the following Special Findings of Fact and Conclusions of Law, to-wit:

'SPECIAL FINDINGS OF FACT

'1. That Georgia M. Beeler died on October 5, 1969, domiciled in and a resident of Warrick County, State of Indiana, leaving an estate in said County and State.

'2. The decedent, Georgia M. Beeler, was a widow and unmarried at the time of her death and she was not survived by any descendants nor by either parent nor by any brother or sister. The decedent was survived only by her three nieces, the plaintiffs, Judith Marts Heath, Leona Marts Donald and Mildred Marts Meyer. Judith Marts Heath, Leona Marts Donald and Mildred Marts Meyer are daughters of Herbert L. Marts, the brother of Georgia M. Beeler. Herbert L. Marts predeceased Georgia M. Beeler. Judith Marts Heath is a natural child of Herbert L. Marts, deceased. Leona Marts Donald and Mildred Marts Meyer were adopted as children and heirs at law of Herbert L. Marts on March 19, 1941, at which time the said Leona Marts Donald and Mildred Marts Meyer were minors.

'3. On October 4, 1968, the decedent, Georgia M. Beeler, at the office of Waldo Hendrickson, Attorney at Law, of Boonville, Indiana, executed an original ribbon copy and a carbon copy of her Last Will and Testament prepared for her by the said Waldo Hendrickson. On that date the original ribbon copy was delivered to and retained by the decedent. The executed carbon copy was retained by Mr. Hendrickson. Plaintiff's Exhibit No. 1 admitted in evidence in this cause is the executed carbon copy of said Last Will and Testament. Plaintiffs' Exhibit No. 2 admitted in evidence in this cause is the original ribbon copy of said Last Will and Testament in the form in which it was delivered to and retained by the decedent except that the tearing thereof occurred after the document was delivered to the decedent.

'4. The decedent, Georgia M. Beeler, retained the possession of and control over the said original carbon copy of her said Last Will and Testament continuously from and after the date of the execution of said will until she was taken to the hospital a week before her death.

'5. During the period of time from prior to October 4, 1968, until going to the hospital, the decedent, Georgia M. Beeler, resided alone in her four-room residence in the City of Boonville, Indiana.

'6. Judith Marts Heath and her mother, Alma Marts, arranged for the decedent, Georgia M. Beeler, to be admitted to the hospital and took charge of her house during her stay in the hospital, coming and going daily during the week before the decedent's death. Other including neighbors, were from time to time in the house. The plaintiff, Judith Marts Heath was in the room where the will was later found at least once during the week.

'7. After the death of the decedent, Georgia M. Beeler, the plaintiff, Judith Marts Heath, and her mother, Alma Marts, locked the house of the decedent, Georgia M. Beeler, and delivered the key to Mr. Charles Koehler, funeral director of Boonville, Indiana, who had conducted the funeral of the decedent.

'8. On October 15, 1969, the plaintiff, Judith Marts Heath, and her mother, Alma Marts, were informed by Waldo Hendrickson that he had prepared the October 4, 1968, will of the decedent, that the decedent had executed both an original ribbon copy and a carbon copy, that he had delivered the original ribbon copy to the decedent and that he had in his possession the executed carbon copy. Thereupon, on the same date, the plaintiff Judith Marts Heath, her mother Alma Marts, and Mr. Charles Koehler, funeral director of Boonville, Indiana went to the home...