In re Estate of Troxel
| Decision Date | 14 December 1999 |
| Docket Number | No. 71A04-9904-CV-162.,71A04-9904-CV-162. |
| Citation | 720 N.E.2d 731 |
| Parties | In the Matter of the ESTATE OF Jack L. TROXEL, Deceased, Kevin R. Troxel and Rick L. Troxel, Appellants-Petitioners, v. Joanne K. Troxel, Appellee-Respondent. |
| Court | Indiana Appellate Court |
Paul T. Cholis, South Bend, Indiana, Attorney for Appellants.
Randy J. Spitaels, Loren R. Sloat, Kindig & Sloat, Nappanee, Indiana, Attorneys for Appellee.
Some five years after her husband's death, Joanne K. Troxel ("Joanne") successfully petitioned to probate his will to secure her title to a tract of land. Kevin R. and Rick L. Troxel (the "Troxels"), the decedent's sons from a former marriage, petitioned for revocation of probate on the ground that the will had been probated beyond the three-year period provided by statute. The court dismissed their petition as an untimely will contest. The Troxels appeal, raising two issues which we restate as:
1. Whether the trial court erred when it admitted the decedent's will to probate more than three years after the decedent's death.1
2. Whether the Troxels' only remedy to contest the probate court's jurisdiction was to file a will contest within five months of the order admitting the decedent's will to probate.
We reverse and remand with instructions.
Jack L. Troxel, a resident of St. Joseph County, died testate on September 26, 1992. Joanne, his second childless spouse, and the Troxels are his only heirs. The decedent devised his entire estate to Joanne, including the tract on which the marital residence was located.
The residence was destroyed by fire in December of 1996. When Joanne sought a permit to re-build, she learned that the property was titled in the decedent's name alone. On July 29, 1997, Joanne then filed her Petition for Probate of Will and Issuance of Letters in the St. Joseph Probate Court. On the same day, the court admitted the will to probate and appointed Joanne as personal representative of the estate. Notice of administration of the estate was published in the Mishawaka Enterprise. Ten months later, Joanne filed her Final Account. On June 19, 1998, after publication of notice in the same newspaper, the court approved Joanne's final accounting, closed the estate and discharged Joanne as personal representative. On August 11, 1998, two months after the court had closed the decedent's estate and thirteen months after the court had probated the decedent's will, the Troxels filed a Petition to Reopen Estate and for Revocation of Probate of Will alleging that probate of the will was barred because there had been no administration of the estate within three years of the decedent's death. Joanne moved to dismiss the action under Indiana Trial Rule 12(B)(6). Following a hearing, the court dismissed the Troxels' petition as an untimely will contest. The court denied the Troxels' motion to correct error, and they now appeal.
The Troxels contend that the probate court erred when it denied their petition to reopen the estate and revoke its order of probate. Specifically, the Troxels argue that the court was without jurisdiction to grant Joanne's petition to probate the decedent's will after three years. The jurisdiction of a court to grant letters testamentary or letters of administration is derived from statutory law. Overpeck v. Dowd, 173 Ind.App. 610, 618, 364 N.E.2d 1043, 1049 (1977), modified, 173 Ind.App. 610, 368 N.E.2d 1175 (1977). The relevant statute provides:
If letters testamentary or of administration are not taken out upon a decedent's estate within three (3) years after the decedent's death, the will of the decedent shall not be probated. However, in the case of an individual presumed dead under IC 29-2-5-1, the three (3) year period commences with the date the individual's death has been established by appropriate legal action.
The statute states that a will "shall not be probated" if letters are not taken out within three years after the decedent's death. The word "shall" used in the statute is presumed to be mandatory unless it is clear from the context that the General Assembly intended otherwise. Murray v. Hamilton County Sheriff's Dep't, 690 N.E.2d 335, 340 (Ind.Ct.App. 1997). We may consult the report of the Indiana Probate Code Study Commission to determine the underlying reasons, purposes and policies of the Indiana Probate Code, and we may use that report as a guide in its construction and application. IND.CODE § 29-1-1-4; Frances Slocum Bank and Trust Co. v. Estate of Martin, 666 N.E.2d 411, 414 n. 5 (Ind.Ct.App.1996), trans. denied. In its report, the Probate Code Study Commission explained that the purpose of Indiana Code Section 29-1-7-15.1(d) is to "limit the time for probate of a will in all events where there has been no administration." PART II, INDIANA PROBATE CODE STUDY COMMISSION REPORT 33 (1952). The Commission continued:
This subsection [XX-X-X-XX.1(d) ] bars the probate of any will after three years from the date of the decedent's death where no letters of administration have been granted upon his estate. It is new in the sense that it is definite and absolute. Our present statutes (Burns', Sec. 6-1106 and 7-402) make all wills ineffective as far as creditors are concerned unless probated within three years from the decedent's death, while this section makes it ineffective as to everyone.
Id. (emphasis added).
These comments show that Indiana Code Section 29-1-7-15.1(d) bars tardy probate by devisees. DEBRA A. FALENDER, 1 HENRY'S INDIANA PROBATE LAW & PRACTICE § 60, at 248-49 (8th ed. 1989) [hereinafter HENRY'S INDIANA PROBATE].2 Thus, when no letters of administration have been issued, the petition for probate must be filed within the three-year statutory period before the probate court has jurisdiction to act on an estate. See Matthew Bender, 2 INDIANA ESTATE PLANNING AND PROBATE PRACTICE §§ 31.30 (1999); see also HENRY'S INDIANA PROBATE § 404. When a court is without such jurisdiction, it possesses the power to do nothing except enter an order of dismissal. Overpeck, 173 Ind.App. at 619,364 N.E.2d at 1049.
The record reveals that Joanne did not commence probate proceedings until almost five years after her husband's death. Because she did not probate the will within the time permitted by Indiana Code Section 29-1-7-15.1(d), the court was without jurisdiction to grant her petition. The letters testamentary were not authorized by statute and were void at their inception. See Overpeck, 173 Ind.App. at 618,
364 N.E.2d at 1049 (citing Chicago, I. & L. Ry. v. Hemstock, 102 Ind.App. 654, 4 N.E.2d 677 (1936)). The probate court had no jurisdiction to admit the will when the petition showed on its face that it did not comply with statutory requirements. See Estate of Cameron, 142 Ind.App. 645, 652, 236 N.E.2d 626, 628 (1968).
In a related issue, the Troxels assert that the probate court erred when it dismissed their petition for revocation of probate because they had not filed a will contest within the five-month time period permitted by statute. The question presented is whether a will contest under Indiana Code Section 29-1-7-17 is the only means by which the Troxels could challenge the court's jurisdiction to probate their father's will. The statute provides:
IND.CODE § 29-1-7-17 (emphasis added).3 Joanne insists that the language, "any other valid objection to ... the probate of the will," found in Indiana Code Section 29-1-7-17(4), applies to the Troxels' petition. Thus, she argues, the court properly dismissed their petition filed thirteen months after the order admitting the will to probate.
Our duty when construing a statute is to ascertain and give effect to the legislative intent. Hoosier Envtl. Council v. Department of Natural Resources, 673 N.E.2d 811, 815 (Ind.Ct.App.1996), trans. denied. It is well established that statutes must be read as a whole. Id. A proper interpretation of any particular section of a statute results only when the words in that section are considered in the context of the entire statute. Stump v. Indiana Equip. Co., 601 N.E.2d 398, 401 (Ind.Ct.App. 1992), trans. denied.
Indiana Code Section 29-1-7-17 provides that a will contest must be filed "in the court having jurisdiction over the probate of the will." Id. As stated previously, the Troxels challenge the St. Joseph Probate Court's jurisdiction to grant Joanne's petition to probate her husband's will and issue letters testamentary. "Jurisdiction" has been described as "the legal power, as distinguished from the right, to entertain any matter or proceeding, and to act therein." State ex rel. Wilson v. Howard Circuit Court, 237 Ind. 263, 267, 145 N.E.2d 4, 6 (1957). As Judge Garrard, writing for this court, reasoned:
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