Todd v. Ehresman, 19461
| Decision Date | 13 June 1961 |
| Docket Number | No. 2,No. 19461,19461,2 |
| Parties | Marguerite TODD, John A. Rusk, Cecil Rusk, Charles Rusk, David Rusk, Walter Rusk, Keith Gordon Martin, Virginia Louise Kavanaugh, Patricia Jeanne Tisdale, Delbert J. Martin, Gordon O. Martin, Wray M. Widener, Robert C. Widener, Lloyd W. Widener, Ruby N. Rogers, Forest E. Martin, Roberta Neat West, Delores June Montague, Martha Bressler, Odas A. Martin, Mary M. Martin, and Bernice Anderson McGhehe, Appellants, v. Eva Yost EHRESMAN, Clarence Yost, Russell Warwick, Donald Martin and Eugene Martin, as Co-executors of the Last Will and Testament and Codicil Thereto and of the Estate of Clovis E. Martin, Deceased, Mae Martin, Donald Martin, Eugene Martin, Lillie Mae Slipher, Ruth Miller, Paul Dryer, Russell Dryer, Bertha Yost Jackson, Robert Merlin Warwick, G. Harold Warwick, Charles E. Martin, Martin A. Dryer, Charles Martin, Bessie Sanders, Clarence R. Martin, Carlton S. Martin, Bernard Felix, Margaret Felix Tilford, Edward Charles Burch, John H. Burch, Ralph Steinbaugh, Glen Steinbaugh, Earl Steinbaugh, Richard Steinbaugh, Velma Davis Bowman, William C. Davis, Any and all unknown descendants of _____ Felix, a Deceased son of Mary Martin Felix Derrick, Deceased, and Aunt of Robert E. Warrick, Deceased, The Unknown Heirs of Robert E. Warwick, Deceased, each and all of whose names are unknown, and Purdue National Bank of Lafayette as Administrator of the Estate of Robert E. Warwick, Deceased, Appellees. . Division |
| Court | Indiana Appellate Court |
Morrison, Morrison & Morrison, Frankfort, Ball & Eggleston, Lafayette, for appellants.
Robertson & Lynch, Lafayette, Allen H. Appleton, Frankfort, for appellees.
Robert E. Warwick, a resident of Benton County, Indiana, died intestate July 25, 1957. The Purdue National Bank of Lafayette was duly appointed and qualified as Administrator of decedent's estate. (Hereinafter said Administrator will be referred to as appellee Bank).
This action was initiated when appellee Bank filed its final account and related petitions, being petition to settle and allow accounts, petition to determine heirship, and petition for authority to distribute the estate, in which there was shown a balance on hand of $289,641.71. Out of the aforesaid balance there yet remains to be paid the balance due on the Administrator's fee and the Administrator's attorneys' fee. The petition to determine heirship reads in part as follows:
'Six paternal first cousins, namely: G. Harold Warwick, R.R. 2, 56562 Pear Road, South Bend, Indiana; Clarence Yost, Dayton, Indiana; Russell Warwick, R.R. 4, Lafayette, Ind.; Eva Yost Ehresman, R.R. 5, Lafayette, Ind.; Merlin Warwick, R.R. 5, Lafayette, Ind.; Bertha Yost Jackson, 29 South 29th St., Lafayette, Indiana.
'Six maternal first cousins, namely: Clovis Martin, 451 East Green St., Frankfort, Indiana; Charles E. Martin, 534 1/2 South 29th St., Lafayette, Indiana; Paul Dryer, 2091 West 4th St., Reno, Nevada; Martin A. Dryer, 1348 Shelby St., Indianapolis, Ind.; Russell Dryer, 2524 Berry Avenue, Los Angeles 64, Cal.; Charles A. Martin, 6145 E. Tuxedo St., Indianapolis, Indiana and each and all of said twelve living first cousins are in the same and nearest degree of kinship to the intestate per capita without representation and are therefore entitled to share in the distribution of this estate equally, share and share alike.'
Thereafter the known first cousins once removed (hereinafter designated as second cousins) and the known first cousins twice removed (hereinafter designated as third cousins) filed their separate and several objections to said report claiming the right to participate in the proceeds of said estate as heirs of said decedent. These objections are voluminous and for reasons hereinafter shown we do not deem it necessary to set them out or summarize them here.
A stipulation was entered by all the parties which was incorporated in the record by order of the court and is as follows:
'It is therefore, ORDERED, AJDUGED AND DECREED by the Court that all of the known surviving relatives of the decedent and their relationship to the decedent, as shown by the 'Family Tree' heretofore stipulated, are as follows:
'FIRST COUSINS: Eva Yost Ehresman, Clarence Yost, Russell Warwick, Clovis E. Martin, Paul Dryer, Russell Dryer, Bertha Yost Jackson, Robert Merlin Warwick, G. Harold Warwick, Charles, E. Martin, Martin A. Dryer, Charles Martin.
'FIRST COUSINS ONCE REMOVES (2nd Cousins): Wray M. Widener, Lloyd W. Widener, Forest E. Martin, Keith Gordon Martin, Patricia Gene Tisdale, Clarence R. Martin, Carlton S. Martin, Mary M. Martin, Bernice Anderson McGehehe, Margaret Felix Tilford, Robert C. Widener, Ruby K. Rogers, Martha Bressler, Virginia Louise Kavanaugh, Bessie Sanders, Odas A. Martin, Delbert J. Martin, Gordon O. Martin, Bernard Felix, and any and all unknown descendants of * * * Felix, A deceased Son of Martin Martin Felix Derrick, deceased, an Aunt of the Decedent herein.
'FIRST COUSINS TWICE REMOVED (3rd Cousins): Robert Neat West, Ra ph Steinbaugh, Glen Steinbaugh, Richard Steinbaugh Marguerite Todd, Walter Rusk, David Rusk, Wm. C. Davis, Delores Neat West, (now Montague) Earl Steinbaugh, John A. Rusk, Cecil Rusk, Charles Rusk, Velma David Bowman.'
Prior to hearing upon the issues of fact and law pertaining to the determination of heirship as presented upon the then pending petitions to determine heirship by said respective appellants and the like issues presented upon the then pending final account and related petitions of appellee Bank and the said objection of such respective appellants thereto, the court defined the ultimate issue presented on all pleadings to be: Where a decedent dies intestate leaving no persons surviving of closer degree of kinship to him than first cousins or first cousins once or twice removed, which class or classes inherit from the deceased and what proportion does each or all inherit? We agree that this was the issue presented. It is the first time this issue has been presented to us under the new Probate Code.
On October 26, 1959, pending the court's finding upon the determination of heirship, the chart showing the addition of Edward Charles Burch and John H. Burch to the family tree and offered in lieu of an original chart was presented and filed in open court, the order book entry being as follows:
'Comes now the court, and a showing having been made that two first cousins once removed, namely; Edward Charles Burch and John H. Burch, were discovered after June 4, 1959, and a chart showing the addition of such names to the Family Tree, which chart is marked Exhibit A, has been offered in lieu of the original chart showing said Family Tree filed herein, the Court now FINDS that said Chart, Exhibit A, should be filed herein in place of the original Family Tree, and that the names of Edward Charles Burch and John H. Burch should be included as first cousins once removed.
'It is, therefore, CONSIDERED, ORDERED AND AJDUDGED that said Exhibit A be and the same is filed herein to replace the original chart showing the Family Tree, andthat Edward Charled Burch and John R. Burch are first cousins once removed of the decedent.'
It was the judgment of the court that the heirs entitled to the distribution of the estate of Robert E. Warwick are the surviving first cousins, namely; Eva Yost Ehresman, Clarence Yost, Russell Warwick, Clovis E. Martin, Paul Dryer, Russell Dryer, Bertha Yost Jackson, Robert Merlin Warwick, G. Harold Warwick, Charles E. Martin, Martin A. Dryer, and Charles Martin, and that all other parties take nothing.
Before initiation of any appeal, appellees Donald Martin and Eugene Martin as coexecutors of the last will and testament and codicil thereto and of the estate of Clovis E. Martin, deceased, and appellees Mae Martin, Donald Martin, Eugene Martin, Lillie Mae Slipher and Ruth Miller, upon their verified petition showing the death of Clovis E. Martin, one of the surviving first cousins of Robert E. Warwick, deceased, which death occurred on February 15, 1960, were substituted by the trial court as proper parties in lieu of Clovis E. Martin, deceased, as being the personal representatives of said decedent and all of his devisees, and legatees named in the last will and testament and codicil thereto of said decedent and as all of said decedent's heirs-at-law succeeding to the interest of decedent Clovis E. Martin in the estate of the decedent Robert E. Warwick.
The motions for new trial of the second and third cousins were overruled by the trial court and the only error assigned here is the overruling of the motions.
Appellants who are second cousins of deceased and those who are third cousins have filed separate briefs to support their contentions. However, the arguments and contentions in each are substantially the same.
One of appellants' principal contentions is that the New Probate Code (§ 6-201(c)(6), Burns' 1953 Replacement) changed the provisions of § 5 of the Acts of 1852 (Former § 6-2305, Burns' 1933). Sec. 6-201(c)(6), Burns' 1953 Replacement, provides as follows:
The emphasized phrase is the portion they assert changed the provision of the Old Probate Code (§ 6-2305, supra) and which provided as...
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