Taylor v. Taylor

Decision Date28 November 1994
Docket NumberNo. 32S04-9411-CV-1124,32S04-9411-CV-1124
Citation643 N.E.2d 893
PartiesPatrick R. TAYLOR, Appellant, v. Josephine TAYLOR, Ronald R. Taylor, Bank One, Crawfordsville, NA, Personal Representative of the Estate of John Robert Taylor, deceased, and The Estate of John Robert Taylor, Deceased, Appellees.
CourtIndiana Supreme Court

DeBRULER, Justice.

This case comes to us on petition to transfer. Taylor v. Taylor (1994), Ind.App., 632 N.E.2d 808. Ind.Appellate Rule 11(B). Appellant Patrick Taylor challenges a judgment determining heirship. We grant transfer in order to address the following issues:

1) whether the incompetency of a witness under Indiana Code § 34-1-14-6 to -7, the so-called "Dead Man's" statute, is waived by a party when the party employs that witness's deposition in support of a motion for summary judgment;

2) whether the trial court erred in granting partial summary judgment that there was no oral prenuptial agreement; and

3) whether an alleged violation of the attorney-client privilege provides sufficient grounds for excluding testimony at trial.

Appellee Josephine married the decedent, Robert Taylor, on December 31, 1986. At that time decedent's will left his estate to his former wife, Jean, who predeceased him. The will also provided that if Jean died before Robert, then his estate would pass to his sons, Patrick and Appellee Ronald. Before marrying, Josephine and Robert had discussed what provisions would be made for her in the event of his death.

In May, 1988, Josephine sought legal advice about her bankruptcy from Patrick, a practicing attorney. As part of that bankruptcy, Patrick prepared several documents for Josephine to sign, including a waiver of right to elect against Robert's will. Patrick filed the bankruptcy documents on May 19, 1988.

In June 1988, Robert and Josephine met with attorney Herman Greenwood, in order to write a new will for Robert. Greenwood subsequently drafted the new will, which included provisions for Josephine, but that will was never executed. Robert died on April 23, 1990. Appellee Bank One, as personal representative of the estate, admitted the first will to probate on May 18, 1990. Patrick filed the waiver with the trial court. Josephine filed a petition of surviving spouse for statutory allowance and an election to take against the will. Bank One filed a petition to determine heirship on October 1, 1990. Either the Estate or Patrick seems to have tried to prevent Josephine from electing to take against the will, based on an alleged prenuptial agreement.

Josephine filed a motion for partial summary judgment on July 23, 1991, arguing that no issue of material fact existed as to the existence of a prenuptial agreement between her and the decedent. The trial court granted the motion, finding that no such agreement existed. The Court of Appeals refused to hear Patrick's interlocutory appeal of the trial court's order granting partial summary judgment. Ind.Appellate Rule 4(B)(6).

The trial court heard evidence on the remaining issues and found that Josephine had not waived her right to elect to take against the will. The court ordered that she receive the $8,500 statutory survivor's allowance and the statutory intestate share of the estate for a subsequent childless spouse. Ind.Code § 29-1-4-1 (Burns 1989).

Patrick appealed and the Court of Appeals affirmed the trial court. Taylor v. Taylor (1994), Ind.App., 632 N.E.2d 808. It found that the trial court properly granted summary judgment on the issue of the prenuptial agreement because an oral prenuptial agreement is not enforceable. The Court of Appeals also decided that a deposition used for summary judgment purposes does not waive the incompetency of a witness to testify based on the Dead Man's statute. Ind.Code 34-1-14-6 and -7 (Burns 1986).


Patrick claims that Josephine waived the application of the Dead Man's statute by filing a witness's deposition with the trial court when that witness would have been incompetent under the statute. 1

The position held by this Court is that the mere taking of a deposition does not waive the applicability of the Dead Man's statute. Plummer v. Ulsh (1967), 248 Ind. 462, 229 N.E.2d 799. But see Duling v. Markun 231 F.2d 833 (7th Cir.1956) (taking of deposition of party otherwise incompetent is waiver of objection to testimony of person at trial). We add that requesting an admission does not constitute a waiver of the incompetency of the witness receiving that request, i.e. a party may request admissions from an opposing party and still raise the incompetency objection if that party attempts to testify at trial. Discovery, as its name suggests, exists in order for parties to explore and investigate. It is for this reason that the discovery rules explicitly allow the discovery of inadmissible information. Ind.Trial Rule 26(B). Treating material discovered as a waiver of protections such as the Dead Man's statute would inhibit, not facilitate, the acquisition of information that might lead to admissible evidence.

However, at the point when a party employs a witness's deposition and/or admissions in court, the party is in fact using the information discovered for an evidentiary purpose. The party is treating, and hopes that the court will treat, the discovered information as establishing some relevant fact about the case. In such circumstances, if the deposition testimony concerns matters within the scope of the Dead Man's statute, then the party who offered the deposition testimony into evidence would have waived the incompetency of the witness, because that party has relinquished the benefit bestowed by the statute.

The Dead Man's statute contains the following relevant provisions In suits or proceedings where an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator; any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate.... Ind.Code § 34-1-14-6 (Burns 1986).

In all suits by or against heirs or devisees, founded on a contract with or demand against the ancestor, to obtain title to, or possession of property, real or personal, of, or in right of, such ancestor, or to affect the same in any manner, neither party to such suit shall be a competent witness as to any matter which occurred prior to the death of the ancestor. Ind.Code § 34-1-14-7 (Burns 1986).

The central purpose of the Dead Man's statute is to ensure that when one party to a transaction has had her lips sealed by death the other party's lips are sealed by law, Johnson v. Estate of Rayburn (1992), Ind.App., 587 N.E.2d 182. See also In re Sutherland's Estate (1965), 246 Ind. 234, 204 N.E.2d 520.

"[T]he dead man's statute applies only where the claimant is prepared to testify as to matters or transactions concerning the decedent, and not merely as to matters that occurred while the decedent was alive...." Id. at 185 (emphasis added). Since a judgment "against the estate" could result and an alleged "contract with" the decedent is involved, Josephine's election, or waiver of right to elect, to take against the will would ordinarily have rendered her testimony incompetent. However, any exclusion that might have been available under the Dead Man's statute has been waived by the use of the depositions in support of the motion for summary judgment and the trial court erred in excluding the testimony of Josephine, Patrick, and Robert R. Taylor. Mary Dawn Taylor's testimony is also admissible, assuming that its exclusion was based solely on the incompetence of her husband, Robert. 2


Patrick claims that the trial court erred in granting partial summary judgment that an oral prenuptial agreement was unenforceable under the doctrine of partial performance.

Patrick correctly points out that prenuptial agreements are favored by the law, even when not memorialized in writing until after the marriage has occurred. Beatty v. Beatty (1990), Ind.App., 555 N.E.2d 184. This favor results from a desire by the courts to facilitate efficient property settlement when a marriage terminates through death or divorce. A prenuptial agreement can be invaluable to a judge attempting to determine the parties understanding of the obligations of their marital relationship. See In re Marriage of Boren (1985), Ind., 475 N.E.2d 690.

Prenuptial or antenuptial agreements are nothing more than a complicated species of contract, i.e. an enforceable promise. In analyzing contractual claims we must first determine that there was in fact a promise. Since a promise is the common element in all contracts, if there is no promise then there exists no contract.

Apparently, prior to their marriage, the decedent and Josephine discussed his obligations to her. However, the issue here is whether any agreement extended to the waiver of the right to elect to take against the will. The statute is very explicit on this subject:

When a married individual dies testate as to any part of the individual's estate, the surviving spouse is entitled to take against the will.... [I]f the surviving spouse is a second or other subsequent spouse who did not at any time have children by the decedent and the decedent left surviving a child or children or the descendants of a child or children by a previous spouse, the surviving second or subsequent childless spouse shall upon such election take one third ( 1/3) of the net personal estate of the testator plus a life estate in one third ( 1/3) of the lands of the...

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