Miller's Estate, Matter of

Decision Date27 January 1977
Docket NumberNo. 2--775A176,2--775A176
Citation172 Ind.App. 21,359 N.E.2d 270
PartiesIn the Matter of the ESTATE of Phillip R. MILLER, Deceased. Hazel LONG, Administratrix, Protestants (Appellants), v. SALVATION ARMY, INC. and Donna Hunneshagen, Petitioners (Appellees).
CourtIndiana Appellate Court
Russel J. Wildman, Peru, for appellants

James A. Grund, Peru, George R. Wildman, Logansport, for appellees.



This case was transferred from the Second District to this office in order to lessen the disparity in caseloads among the Districts.

Hazel Long, administratrix of the estate of Phillip R. Miller (hereinafter Hazel and Phillip respectively) appeals from an adverse judgment of the Probate Court which found that a duly executed carbon copy of Phillip's will should be probated.

We reverse.


The facts necessary for our disposition of this appeal are as follows: On March 4, 1969, Phillip executed his will. There was one ribbon copy and two carbon copies of the instrument. The ribbon copy and one of the carbon copies were kept by Phillip, and one carbon copy was retained by Phillip's attorney. On September 15, 1969, Phillip was confined to a nursing home where he remained until his death on February 23, 1972. The ribbon and carbon copy of Phillip's will which he had retained were never found. On February 29, 1972, his daughter and sole heir, Hazel Long, qualified as the administratrix of Phillip's estate. On February 9, 1973, the Salvation Army, Inc., filed a petition which sought to have an executed carbon copy of Phillip's will admitted to probate. On February 20, 1973, Hazel filed her objections to the probate of this will. On November 20, 1974, the trial court overruled Hazel's objections, and ordered the will admitted to probate. The order provided in pertinent part as follows:


'That by reason of the stipulations heretofore filed in Paragraph 12, the Objector herein states, 'Hazel Long had no access to any of the books _ _ and papers'. That by reason of said statement the Petitioner could clearly call 'The Court further finds that there is in existence Burns Indiana Statute 6--506, I.C. 29--1--5--6, which states: 'No will in writing, nor any part thereof, except as in this act provided, shall be revoked, unless the testator, or some other person in his presence, and by his direction, with intent to revoke, shall destroy or mutilate the same; _ _'; and that by reason of this Statute the burden is upon the Objector to show that the decedent did, in fact, revoke his will as she claims.

Mrs. Hunneshagen as a witness to rebut said statement which she did by stating that she left the home referred to in Rochester and that she turned the keys to decedent's home over to the said Hazel Long, and that she (the) said Mrs. Hunneshagen was a fit and proper witness to be called by the Petitioner as to this testimony and, further, that she was a fit and proper witness as to the disposition of decedent's desk and safe after decedent's death. And now the Court sustains the Objector's testimony as to any and all other matters by both Mr. and Mrs. Hunneshagen and all of the said testimony, other than that just referred to, is ordered stricken from the record.

'The Court further finds that by reason of the stipulation that the inference that the will was in possession of decedent, is clearly overcome by reason of the fact that said deceased was in a nursing home two years prior to his death and that this situation is in point with Cope v. Lynch, 176 N.E. (2d) 897, 902 (1961) 132 Indiana Appellate, 673, which has been recently affirmed by the Indiana Appellate Court in Bechert v. Lehe, 316 N.E. (2d) 394 (September 12, 1974).

'The Court further finds that in the instant case, the so called copy, which is being tendered for probate, is, in fact, a duplicate of the original since it was executed in the same manner as the original and, although there seems to be no case in point, it appears to this Court that where a decedent has, in fact, executed one or more duplicates, it is clearly the intent of the testator that should something happen to the original will, for any reason whatsoever, said duplicate should, in fact, be probated.

* * *'


1. Whether the judgment of the trial court is contrary to the evidence or contrary to law.


We wish to note at the outset of our discussion that petitioner-appellee, Salvation Army, Inc., has failed to supply this court with a brief. Therefore, Hazel need only demonstrate a prima facie case of reversible error to obtain a reversal of this cause. In the Matter of the Adoption of Sheeks v. Alvarado (1976), Ind.App., 344 N.E.2d 872, 873; Environmental Control Systems, Inc. v. Allison (1974), Ind.App., 314 N.E.2d 820, 821.

Hazel argues that the trial court erred in permitting Donna Hunneshagen, a devisee under Phillip's will, to rebut stipulations of fact entered into by the parties. The parties stipulated, inter-alia, to the following facts:

'* * *

11. That Phillip R. Miller never had any conversation with Hazel Long with reference to the will dated March 4, 1969, and never had any conversation with Russel J. Wildman about any will after March 4, 1969. That neither Hazel Long or Russell J. Wildman have any knowledge of what disposition the said Phillip R. Miller made of said ribbon and carbon copy of the will left with him.

12. . . . That during the period from the date of said will until decedent's death, Hazel Long had no access to any of his books, records, or other papers, and did not know where the said Phillip R. Miller kept his books, records and papers. That upon his death, the only books, papers, records and documents she found, were either in the house he owned and lived in (sic) Rochester, Indiana at the time said will was written, or in the nursing home where he died. That she has no knowledge of any other places that he may have kept papers.' (Our emphasis).

* * *'

As the Order of the trial court demonstrates, Donna was permitted to testify that on September 15, 1969...

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