Krick v. Farmers and Merchants Bank of Boswell

• Decision Date: 25 January 1972
• Docket Number: 171A22,Nos. 1270A257,s. 1270A257
• Citation: 151 Ind.App. 7,279 N.E.2d 254
• Parties: William G. KRICK, Appellant (Petitioner Below), v. FARMERS AND MERCHANTS BANK OF BOSWELL, Administrator with Will Annexed of Elizabeth Krick, Deceased, et al., Appellees (Defendants Below). William G. KRICK, Appellant (Defendant Below), v. FARMERS AND MERCHANTS BANK OF BOSWELL, Administrator with Will Annexed of Elizabeth Krick, Deceased, et al., Appellees (Plaintiffs and Defendants Below).
• Court: Indiana Appellate Court

Page 254

279 N.E.2d 254

151 Ind.App. 7

William G. KRICK, Appellant (Petitioner Below), v. FARMERS AND MERCHANTS BANK OF BOSWELL, Administrator with

Will Annexed of Elizabeth Krick, Deceased, et al.,

Appellees (Defendants Below).

William G. KRICK, Appellant (Defendant Below), v. FARMERS AND MERCHANTS BANK OF BOSWELL, Administrator with

Will Annexed of Elizabeth Krick, Deceased, et al.,

Appellees (Plaintiffs and Defendants Below).

Nos. 1270A257, 171A22.

Court of Appeals of Indiana, Second District.

Jan. 25, 1972.

Rehearing Denied Feb. 29, 1972.

Stephen C. Bower, Kentland, for appellant

Thomas R. McConnell, Fowler, for appellee Farmers and Merchants Bank of Boswell, Adm.

Carl M. Franceschini, LaPorte, for appellees Louis Krick and Margaret Krick.

Alonzo E. Deckard, Danville, for appellee Margaret Krick.

Karl M. Jacobs, Fowler, for appellees Henry W. Krick, Emma Budreau, Anthony G. Krick, and Bertha Clara Siefers.

Charles M. Ailes, Fowler, for appellee Bertha Clara Siefers.

R. Dennis Hoover, Valparaiso, for appellee Anthony G. Krick.

BUCHANAN, Judge.

STATEMENT OF THE CASE AND FACTS--two causes of action, one a will contest suit (171 A 22) and the other a decedent's estate proceeding (1270 A 257), are consolidated for appeal as they raise identical issues. William G. Krick (William), appellant in both causes (a defendant in the will contest suit and petitioner in the estate proceeding), seeks to set aside compromise of the will contest in both actions.

Elizabeth Krick (Elizabeth) died testate on September 6, 1961. At the time of her death she was 92 years of age and domiciled in Benton County, Indiana. She left surviving her the following seven sons and four daughters: Henry Krick, Frank Krick, Louis Krick, Charles Krick, Edmund Krick, Anthony Krick, William Krick, Emma Budreau, Margaret Krick, Martha Krick, and Bertha Siefers (hereinafter referred to by their first names). Emma died after Elizabeth. All of the sons and daughters, except William, and the heirs of Emma and Matthias (a predeceased son) are the appellees.

Elizabeth's last will and testament, dated November 30, 1958, was duly probated in the Circuit Court of Benton County, Indiana, on September 13, 1961. Louis, her son, as directed in her will, was appointed Executor of the estate. He served as Executor until his death on March 19, 1968. On April 5, 1968, the Farmers and Merchants Bank of Boswell, Indiana (the Bank), one of the appellees in this cause, was appointed Administrator with the Will Annexed. The Bank is now, and has been since its appointment, acting in such capacity.

The assets left by Elizabeth consisted of:

                Real estate (93.8 acres)  $32,830.00
                Household goods               125.00
                Implements and crops
                 (farm)                     2,342.10
                Cash (bank accounts)        6,165.49
                                          ----------
                    Total                 $41,462.59
                

Elizabeth's will gave the bulk of her estate, including all of the real estate, to her son Louis and her daughter Margaret. The residue of her estate was bequeathed to the remaining sons and daughters, share and share alike.

On February 27, 1962, Henry, Anthony, Emma, and Bertha filed a Complaint in the Benton Circuit Court to contest Elizabeth's will. The grounds alleged in the Complaint were undue execution of the will, unsoundness of mind of the decedent at the time the will was executed, and that the will was executed under duress and fraud. All interested parties, including the appellant William as defendant, were duly notified of the filing of the action as provided by law and were served with summons. The will contest, however, was filed as a separate civil action in the Benton Circuit Court--and so docketed.

At the same time the will contest was filed, Bertha was asserting a claim against the estate for advancements and money spent on behalf of Elizabeth in the approximate amount of $8,000.00.

On February 5, 1964, the parties to the will contest suit advised the court that the will contest had been compromised and settled. The exact terms of the compromise are not clear, but it appears from the record that Louis as Executor paid Bertha's claim in the amount of $6,000.00, and out of this sum she paid the other contestants $2,000.00. The terms of the compromise were not reduced to writing or made known to the court at the time the compromise was approved. However, the records 'Comes now the Plaintiffs and Defendants by counsel and respectfully shows the Court that this cause has been compromised and now the Plaintiffs move the Court to dismiss this cause with prejudice.

show that all of the parties, including William, were represented by counsel and all joined in requesting the court to approve the compromise and dismiss the cause of action with prejudice. The court accepted the recommendation of the parties and entered an Order dismissing the contest suit with prejudice. Omitting formal parts, the last two paragraphs of the court's order on February 5, 1964 read as follows:

'And now the Court being duly advised in the premises ORDERS this cause dismissed with prejudice to the Plaintiffs. Costs to the Defendants.' (Emphasis supplied.)

It is not clear when William first discovered that $2,000.00 of the $6,000.00 paid to Bertha was used to settle the will contest. However, on or before September 2, 1964, William became aware of the nature of the settlement, i.e., that $2,000.00 of estate money had been paid to contestors Henry, Anthony, and Emma, because on that date William filed a Motion asking that the Order approving the compromise settlement of the will contest be set aside. Grounds for the Motion were that he had no knowledge of the terms of the compromise and that the same was made in violation of the provisions of IC 1971, 29--1--9--1 et seq., Ind.Ann.Stat. § 7--301 et seq. (Burns 1953), which requires that a will compromise be reduced to writing. The Motion was set for hearing by the court on January 7, 1965, and following such hearing the court denied the Motion. At this point William did not file a Motion for a New Trial or otherwise take steps to perfect an appeal.

In April of 1968, three and one-half years later, the Benton Circuit Court was informed that Louis had died and the Bank was appointed Administrator with the Will Annexed. In April of 1970 the Bank filed its Final Report. William then timely filed Objections to the Bank's Final Report containing substantially the same allegations as those in his Motion of September 2, 1964 to set aside the compromise of the will contest action.

Again he argued that the compromise violated IC 1971, 29--1--9--2, § 7--302, supra, and that $2,000.00 of the $6,000.00 originally paid to Bertha in settlement of the will contest suit was wrongfully taken from the residue of the estate and paid to the contestants of the will, thereby reducing his share as a residuary legatee.

Realizing its error in failing to comply with IC 29--1--9--1 et seq., § 7--301 et seq., supra, requiring a compromise to be in writing, and for allowing estate money to be used in settlement of the will contest suit, the Benton Circuit Court sustained William's Objections to the Final Report and ordered that the fees of the Administrator and attorneys be determined, and that the $2,000.00 received by the contestants be surcharged against them, reducing their distributive shares by $500.00 apiece. Consequently, none of the money used in the compromise of the will contest came from the decedent's estate.

The Bank subsequently filed a Supplemental Final Report showing that the corrections ordered by the court, and requested by William, had been made. On June 16, 1970, the court approved the Supplemental Final Report of the Bank and ordered the Bank to make distribution accordingly.

Apparently William was not satisfied with the Order of the court sustaining his Objections because on August 5, 1970 he filed a Motion to Correct Errors, alleging for the third time substantially the same errors as appeared in his Motion to set aside the will contest compromise and his Objections to the Bank's Final Report. Again he questioned (1) the action of the court in allowing the attorney for the Bank an additional attorney's fee of $1,000.00 for his services; (2) the judgment Upon receipt of the Motion to Correct Errors, Judge Everett L. West of the Benton Circuit Court sent this letter to Stephen Bower, William's attorney of record:

of the court made on February 5, 1964 approving the compromise settlement of the will contest and dismissing the contestants' Complaint with prejudice, on the ground that the Order was null and void because no formal petition setting forth the terms of the compromise was presented to the court, and no formal finding was made by the court that such compromise was fair; (3) and that the court acknowledged that estate funds were used to compromise the will contest.

'Dear Steve:

I have filed your Motion to Correct Errors in Krick Estate, but I am not filing the Motion under Rule 60B6 in Cause No. C62--20 for the following reasons. Before this Court and in the presence of T. R. McConnell, you, on behalf (sic) your client, William G. Krick, agreed that the proper way to adjust the $2,000 was in a formula arrived at through yourself and Mr. McConnell. Any attempt on your part at this moment to renew a lawsuit which was dismissed five years ago and in which you were counsel, amounts to a fraud upon this Court and clearly a case of misrepresentation.

Sincerely,

Everett L. West'

The Motion to Correct Errors was subsequently overruled. This appeal, taken in both cases, presents identical issues.

ISSUES

ONE. May a party to a final decision compromising a will contest during the course of an estate proceeding elect not to then perfect an appeal and thereafter appeal from an adverse ruling on objections to the personal representative's final report raising the same issues?

TWO. Is this appeal so lacking in merit that Rule AP. 15(F) and (...