Willman v. Railing
| Decision Date | 12 October 1988 |
| Docket Number | No. 39A01-8801-CV-21,39A01-8801-CV-21 |
| Parties | Lorene WILLMAN, Plaintiff-Appellant, v. Robert B. RAILING, as Executor of the Estate of Amanda Moore, deceased, Anna Harmon, David Harmon and Howard Long, Defendants-Appellees. |
| Court | Indiana Appellate Court |
Ronald L. Baker, Indianapolis, Jon W. Webster, Webster & Webster, North Vernon, for plaintiff-appellant.
Roger L. Duvall, Scottsburg, for defendants-appellees.
Plaintiff-appellant, Lorene Willman (Willman), appeals the decision of the Jefferson Circuit Court granting summary judgment on her suit to contest the validity of the will of Amanda Moore, deceased, (the decedent) in favor of the defendant-appellees, Robert B. Railing, as executor, and Anna Harmon, David Harmon, and Howard Long, individually (referred to collectively as the appellees).
We affirm.
The decedent died on October 16, 1986, without a husband, children, or lineal descendants surviving her. On October 21, 1986, an instrument purporting to be her last will and testament was admitted to probate. Thereafter, on March 9, 1987, Willman, the decedent's sister, filed a complaint to contest the validity of the will, naming the appellees, all residents of the State of Indiana, as defendants. Other individuals, being beneficiaries under the will or heirs at law of the decedent, were also named as defendants. The complaint, however, was directed primarily at David and Anna Harmon and alleged that the decedent was of unsound mind at the time the will was executed and that such execution was accomplished upon the exertion of undue influence on the decedent by the Harmons.
On April 2, 1987, the appellees, by counsel, filed an appearance together with an answer and motion to dismiss. The motion to dismiss was filed pursuant to Ind.Rules of Procedure, Trial Rule 12(B)(1), (2), (4), and (5), and alleged the lack of personal jurisdiction by reason of insufficient process and insufficient service of process, the lack of subject matter jurisdiction by reason of Willman's failure to file a verified complaint or post an approved cost bond as required by statute, and Willman's failure to include as defendants all persons beneficially interested as required by statute. Similarly, the answer raised several affirmative defenses including the inadequacy of service of process, and Willman's failure to comply with the statutory requirements for initiating a will contest by reason of her failure to file a verified complaint and failure to name as parties all persons beneficially interested in the will. Pursuant to Ind.Rules of Procedure, Trial Rule 56, the motion was treated as one for summary judgment and briefs were submitted by both parties. Without specifying its reasons the trial court granted the appellees' motion to dismiss and entered summary judgment in their favor on September 14, 1987. This appeal subsequently ensued.
Willman raises the following issues for our review:
I. Whether the trial court erred in dismissing the action and granting summary judgment due to the lack of personal jurisdiction.
II. Whether the trial court erred in dismissing the action and granting summary judgment due to Willman's failure to include all necessary parties.
III. Whether the trial court erred in dismissing the action and granting summary judgment due to Willman's failure to verify the complaint.
IV. Whether the trial court erred in dismissing the action and granting summary judgment due to Willman's failure to post an approved cost bond at the time of filing the complaint.
The first issue before us is whether Willman's method of service was sufficient to grant the trial court personal jurisdiction over the appellees. We hold that it was not.
A proceeding to contest the validity of an alleged will is purely statutory and can only be brought and successfully maintained in the manner and within the limitations prescribed by statute. Matter of Estate of Niemiec (1982), Ind.App., 435 N.E.2d 999; Cook v. Loftus (1981), Ind.App., 414 N.E.2d 581; Modlin v. Riggle (1980), Ind.App., 399 N.E.2d 767, trans. denied; Brown v. Gardner (1974), 159 Ind.App. 586, 308 N.E.2d 424, trans. denied. Failure to give the notice prescribed by statute leaves the trial court without jurisdiction over the proceeding. Voyles v. Hinds (1917), 186 Ind. 38, 114 N.E. 865.
IND.CODE 29-1-7-18 sets forth the manner in which summons shall be served upon defendants in a will contest action. That statute provides in pertinent part:
When an action is brought to contest the validity of any will as provided in this article, summons shall be served upon the defendants in the manner following:
(1) If the defendant is a resident of the state of Indiana summons shall be served on him by the sheriff as provided in IC 29-1-1-12(a).
It is undisputed that process was not obtained by service by the sheriff. Rather, Willman, by her attorney and not by the clerk, served the appellees, all residents of the State of Indiana, with a copy of the complaint and summons by certified mail. Because Willman failed to adhere to the statutory requirements regarding service, the trial court did not obtain personal jurisdiction over the appellees.
Willman nevertheless argues that the method by which she served the appellees was sufficient to grant the trial court personal jurisdiction. She maintains that the Indiana Rules of Trial Procedure which went into effect in 1970 govern the manner of service and supercede the statutory requirements set forth in IND.CODE 29-1-7-18. She maintains service upon the appellees was in accord with Ind.Rules of Procedure, Trial Rule 4.11.
We first note that T.R. 4.17 provides that Rules 4 through 4.16 shall not replace the manner of serving summons as specially provided by statute involving the administration of decedent's estate. Specifically, that rule provides:
Rules 4 through 4.16 shall not replace the manner of serving summons or giving notice as specially provided by statute or rule in proceedings involving, without limitation, the administration of decedent's estates, guardianships, receiverships, assignments for the benefit of creditors.
See also I.L.E. Wills Sec. 139 (1960). Therefore, there is no merit to Willman's claim that the rules of procedure take precedence over the statute governing will contests with regard to the appropriate manner of service.
However, assuming arguendo that the trial rules take priority over the statute governing will contests, we note that Willman has not complied with the procedural requirements set forth in the trial rules regarding service by certified mail. Trial Rule 4.11 states:
Whenever service by registered or certified mail...
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...Jefferson Circuit Court granted a subsequent motion to dismiss. Willman appealed. This court affirmed the dismissal in Willman v. Railing, (1988) Ind.App., 529 N.E.2d 122, reh. den'd., trans. Afterward, Willman tendered a will contest cost bond, filed a proposed amendment to the original co......
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...court with jurisdiction to dissolve marriage). WAIVER 1 It is true that personal jurisdiction may be waived. E.g., Willman v. Railing (1988), Ind.App., 529 N.E.2d 122, 125; Killearn Properties, Inc. v. Lambright (1978), 176 Ind.App. 684, 685-86, 377 N.E.2d 417, 418; Keiser v. Yandes (1873),......
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Robinson v. Estate of Hardin
...to require service by the sheriff and found other means of effectuating service insufficient. Reliance was placed upon Willman v. Railing (1988), Ind.App., 529 N.E.2d 122, in holding that appellants failed to adhere to the statutory requirements prescribing the manner in which service of pr......
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Avery v. Avery, 49A05-1004-PL-320.
...on to hold that trial rules 4 through 4.16 are applicable to will contests, disapproving of this court's holding in Willman v. Railing, 529 N.E.2d 122 (Ind.Ct.App.1988) (holding former statute governing service of process in will contests not superseded by trial rules), trans. denied, disap......