Indiana Law Review


142 INDIANA LAW REVIEW [Vol. 12:142

person does not commit an offense if the person pays the amount
due within ten days after receiving notice that the check was not
paid.

The check deception statute also states that the drawee's
refusal to pay and reasons thereof printed, stamped, written, or at-
tached to the check constitute prima facie evidence that due
presentment was made and that the check was dishonored for the
reasons stated.288

VIII. Decedents' Estates and Trusts

Debra A. Falender*

Although the developments during the survey period in the

areas of wills, guardianships, and administration of decedents'

estates were far from earthshaking, several cases resolved issues of
first impression in Indiana.1 In addition, several sections of the Pro-

bate Code were amended.

A. Judicial Developments

1. Execution of Wills. — In Arnold v. Parry, 2 the court dealt
with a will contestant's allegation that the will admitted to probate

was not properly published.3 The statute setting forth the re-
quirements for the due execution of a will provided: "[TJestator shall

signify to the attesting witnesses that the instrument is his will."4

In Arnold, the only surviving witness to the probated will could not

positively state that the testator had signified to her that the instru-

ment was his will. She testified that she knew the instrument was

288/d § 35-43-5-5(b).
*Assistant Professor of Law, Indiana University of Law— Indianapolis. A.B.,

Mount Holyoke College, 1970; J.D., Indiana University School of Law— Indianapolis,
1975.

JThe title of this discussion is misleading because, during this survey period, no

trust cases were decided. In addition to the cases presented in the text, see Anderson

Fed. Sav. & Loan Ass'n v. Guardian of Davidson, 364 N.E.2d 781 (Ind. Ct. App. 1977)
(discussing the impropriety of a court order directing a bank to turn over a ward's sav-

ings certificate to the ward's successor guardian because the bank had no opportunity

to present evidence of its right to a security interest in the certificate).
2363 N.E.2d 1055 (Ind. Ct. App. 1977).
3The contestant was a beneficiary under a prior will. The contestant raised other

issues for review in addition to the publication issue. One issue, involving an allegation

of undue influence, is discussed at notes 12-16 infra and accompanying text.
4
Ind. Code § 29-l-5-3(a)(l) (1976) (amended 1978).



1979] SURVEY-DECEDENTS' ESTATES 143

the testator's will, but could not remember whether it was the
testator or his attorney who had informed her of that fact.5 Thus,
the contestant argued, absent clear proof that the testator himself

told the witness that the instrument was his will, the will was not
properly executed.

The Arnold court refused to read the statutory language so
strictly as to require that the testator alone make the signification
by some utterance. The testimony revealed that, in the presence of
the witnesses, either the testator or his attorney referred to the in-

strument as the testator's will. The court held that, even if the

testator had not himself referred to the instrument as his will, he

properly published the will by signing it after he heard his lawyer

tell the witnesses that the document was his will.6

The Arnold decision is significant because it is the first decision
in Indiana to deal directly with the statute's publication require-

ment. In arriving at its conclusion, the Arnold court noted that the

purpose of the publication requirement is merely to make sure that
the witnesses are aware that the testator knows he is executing a
will.

7 The court also looked to publication cases in other jurisdic-
tions

8 and to cases dealing with the similar requirement that the

testator request the witnesses to attest.9 The Arnold decision is a

'The witness also testified that she did not read the attestation clause above her

signature. If she had read the clause, or if it had been read to her, and if the clause

had recited that the testator had signified to the witnesses that the instrument was
his will, then a rebuttable presumption would have arisen that the recited act oc-

curred. E.g., Goff v. Knight, 201 Okla. 411, 206 P.2d 992 (1948). See 2 W. Bowe & D.
Parker, Page on the Law of Wills § 19.141 (rev. ed. 1960). When the clause has been
read by or to the witness, it may be used to refresh the memory of the witness or to
impeach hostile testimony by the witness. If, however, the clause is not read by or to

the witness, the clause creates no presumption that the recited acts occurred. See

generally Severns, The True Function of the Attestation Clause in a Will 11

Chi.-Kent L. Rev. 11 (1932).
8
363 N.E.2d at 1061. The court emphasized that the testator was able-bodied and

in full possession of his faculties. Thus, whatever was said for him in his immediate
presence could, without danger, be taken as understood and adopted by him as his act.
If the testator had been old and feeble, the court might have "examine[d] more carefully
what [took] place before him." Id. at 1060 n.3 (quoting Heath v. Cole, 15 Hun. 100, 103
(N.Y. Sup. Ct. 1878)).

7363 N.E.2d at 1058.
8Some cases recognize the validity of publication from one other than the

testator on agency grounds. E.g., Gilbert v. Knox, 52 N.Y. 125 (1873). Others do not
speak in agency terms, but instead talk of the testator's inferred assent to statements

made by others in his presence and hearing. E.g., King v. Westerrell, 284 111. 401, 120
N.E. 241 (1918).

9Indiana has no statutory requirement that the testator request the witnesses to

sign the will. However, because of the idea that attestation is necessarily by invitation,
it is held that the testator must request the witnesses to attest and subscribe the will.
The request from one other than the testator may be assented to and adopted by the



144 INDIANA LAW REVIEW [Vol. 12:142

realistic non-technical application of the unambiguous statutory re-
quirement that the testator himself or herself affirmatively signify

to the witnesses that the instrument is his or her will. By signing
the document after hearing another person inform the witnesses
that the document is the testator's will, the testator "is adopting the
declaration of the will as his own act and communicating his publica-
tion of it to the witnesses] fully and unequivocally." 10 To require
that the testator do something more, such as nod his head or mur-

mur, as an absolute prerequisite to a legally operative publication

would be to substitute "
4

a fetish for a rule of reason' " and defeat

the purpose underlying the requirement.11

The contestant in Arnold also alleged that the question of
whether undue influence had been exerted by the testator's lawyer-

draftsman should have been submitted to the jury.12 The contestant
posited that the existence of a "long standing friendship and

attorney-client relationship"
13 between the testator and the draft-

ing attorney was evidence from which the jury could have inferred
that the attorney exerted undue influence on the client. The court
responded: "A preposterous proposition! And one that would virtual-
ly sound the death knell for the valid execution of wills." 14

The Arnold court recognized that the proposition would not be
preposterous, or, in other words, that an inference of undue in-

fluence might well be raised, if the attorney or a member of his
family were a beneficiary under the will. The court stated, however,
that the request in the will that the executor name the draftsman as
attorney to the estate raises no legal presumption of undue in-

fluence.
15 Even the draftsman's "remote connection" with the Salva-

tion Army, the major beneficiary under the will, raised no inference
of undue influence.16

2. Will Construction. — In Collins v. Held, 17 the trial court was
asked to construe a devise in a 1936 will. In that will, the testator

testator. Bundy v. McKnight, 48 Ind. 502, 506-07 (1874) (quoting and following Gilbert
v. Knox, 52 N.Y. 125 (1873) (statute required that witnesses sign at request of testator;

words of request from another will be regarded as request from testator where cir-
cumstances show that testator assented to and adopted those words)).

10363 N.E.2d at 1061 n.5.
uId at 1061 (quoting In re Petkos' Will, 54 N.J. Super. 118, 124, 148 A.2d 320, 323

(1959)).

12The trial court had granted defendant's motion for judgment on the evidence.
13363 N.E.2d at 1062.
U
I<L

l5Id at 1062-63 n.7 (quoting Breadheft v. Cleveland, 184 Ind. 130, 133, 108 N.E. 5,
6 (1915) (holding that naming the draftsman executor and trustee creates no legal

presumption of undue influence)).
lfl363 N.E.2d at 1063. The nature of the "remote connection" is undisclosed in the

case.
17369 N.E.2d 641 (Ind. Ct. App. 1977).



1979] SURVEY-DECEDENTS' ESTA TES 145

had devised his real estate to his wife for life, then to his daughters

for life, then to his grandchildren in fee simple. The devise to the
grandchildren was worded in pertinent part as follows:

[I]t is my will that my daughters . . . shall each take and hold
the undivided one-half interest in said real estate for and

during the term of their natural lives respectively, the fee

simple of asid [sic] real estate to be vested in my grand-
children, children of my two said daughters. ... On the
death of either of my said daughters it is my will that the
children of such deceased daughter living at the time of her

death shall take and hold absolutely and in fee simple free

and clear of any interest or claim of such surviving daughter

the part or interest in said real estate held by their de-

ceased mother as life tenant.18

The trial court determined that the grandchildren were given a
vested remainder, which descended to the heirs of two grand-
children who predeceased their mothers.

Despite the use of the general term "vested," the court of ap-
peals held that the language italicized above unambiguously expressed

the testator's intent to create contingent remainders in fee in the

grandchildren.19 Although contingent remainders are not favored in

Indiana, and a remainder will be construed as vested if it possibly

can be,20 contingent remainders are lawful and will be given effect if

the testator by unambiguous language sees fit to create them.21 The
Collins court reaffirmed this principle.

In Collins, the court was also required to decide what disposition
should be made of a life estate pur autre vie22 following the intestate
death of the tenant pur autre vie and prior to the death of the
tenant whose life established the duration of the estate. The court
adopted the rule embodied in the Restatement of Property.

23 The
Restatement provides that, if no taker has been designated in the
original creation or in the transfer of the life estate, then the estate

passes to the personal representative of the tenant pur autre vie to

18/d at 643 (emphasis added).
19
I<L at 645. A remainder is contingent if it is subject to a condition precedent.

See generally Restatement of Property § 157 (1936). Here, the italicized language ex-

presses the condition precedent that the grandchildren must survive their mothers to

take their interest.

»E.g. t Spence v. Second Nat'l Bank, 126 Ind. App. 125, 130 N.E.2d 667 (1955);

Busick v. Busick, 65 Ind. App. 655, 115 N.E. 1025 (1917).
21
E.g., Epply v. Knecht, 141 Ind. App. 491, 230 N.E.2d 108 (1967); Chicago, I. & L.

Ry. v. Beisel, 122 Ind. App. 448, 106 N.E.2d 117 (1952).
22A life estate pur autre vie is a life estate in one person for the life of another.
^369 N.E.2d at 648.



146 INDIANA LAW REVIEW [Vol. 12:142

be distributed in the same manner as the tenant's personal property.24

Thus, despite dictum in an early Indiana decision suggesting that

life estates pur autre vie are not descendable,25 the Collins court

held that the life estate descended to the heirs at law of the in-

testate tenant pur autre vie.26

3. Personal Representative's and Attorney's Fees. — In In re
Estate of Newman, 21 the Indiana Court of Appeals held that fee
awards of $4,000 for the personal representative and $8,000 for her
attorney were clearly excessive and an abuse of the trial court's
statutory discretion to allow "reasonable and just" fees.28 The total
value of the decedent's intestate estate was $37,902.96, and
$29,652.96 of these assets were liquid.29 Forty-three bills were paid
by the personal representative during the fifteen-month administra-

tion. Four uncontested claims were filed against the estate and paid
by the personal representative. Only one contested claim was
filed — a claim of $3,000 for child support, which resulted in an award
of $1,160.

In reviewing the award of attorney's fees, the court emphasized
the principle that such awards are best left to the discretion of the
trial court.

30
In exercising its discretion, however, the trial court

should be governed by and confined within the standards widely
recognized and accepted by members of the legal profession.31 Such
standards are found in Disciplinary Rule 2-106 of the Code of Profes-
sional Responsibility: "A fee is clearly excessive when, after a
review of the facts, a lawyer of ordinary prudence would be left
with a definite and firm conviction that the fee is in excess of a

reasonable fee."32 The court of appeals stated: "[B]eyond all ques-

24Restatement of Property § 151 (1936).
25Graham v. Sinclair, 83 Ind. App. 58, 61, 147 N.E. 634, 635 (1925). The rule at ear-

ly common law was that a life estate pur autre vie could not descend. Unless the gran-
tor of the life estate designated a taker, on the intestate death of the tenant pur autre

vie, the estate could be possessed by the first taker, even a total stranger. 1 W.
Blackstone, Commentaries on the Laws of England, Bk. II, at 259-60 (Sharswood
ed. 1872).

^The Collins court stated: "Whatever may have been the arcane logic of that rule
at common law, its ratio legis has long been extinct." 369 N.E.2d at 648.

"369 N.E.2d 427 (Ind. Ct. App. 1977).
2
»I<L at 432-34 (construing Ind. Code § 29-1-10-13 (1976)).
^The decedent owned a $25,000 certificate of deposit and had $4,652.96 in a

checking account.

^g N.E.2d at 433 (citing Ex parte Hodge, 6 Ind. App. 487, 33 N.E. 980 (1893).
31369 N.E.2d at 433.

^ABA Code of Professional Responsibility, DR 2406(B). The following factors
are listed in the Rule as guides in determining the reasonableness of a fee:

(1) The time and labor required, the novelty and difficulty of the questions in-

volved, and the skill requisite to perform the legal service properly.

(2) The likelihood, if apparent to the client, that the acceptance of the par-

ticular employment will preclude other employment by the lawyer.



1979] SURVEY-DECEDENTS' ESTATES 147

tion, we are left with a definite and firm conviction that the at-
torney fee awarded ... is a clearly excessive fee under the
guidelines of DR 2-106."33

Although no similar standards have been adopted to gauge the

reasonableness of a personal representative's fee,
34

the court con-

cluded that the "simple nature of this estate, and thus the amount of
work necessary to attend to the estate, do not seem to warrant an
award of $4,000 out of total assets of $37,902."35

The appellant in Newman was decedent's minor heir. The ap-
pellant did not attend the hearing on the question of fees. The court
held that appellant's absence from the hearing did not bar him from
alleging error in the court's award and did not abrogate the
statutory standard allowing only a "reasonable and just fee."36 After
the fee award was made, the appellant attempted to conduct
discovery in order to attack the award. The Newman court, without
elaboration, held: "[E]state proceedings are properly subject to

discovery rules."37

(3) The fee customarily charged in the locality for similar legal services.

(4) The amount involved and the results obtained.

(5) The time limitations imposed by the client or by the circumstances.

(6) The nature and length of the professional relationship with the client.

(7) The experience, reputation, and ability of the lawyer or lawyers perform-
ing the services.

(8) Whether the fee is fixed or contingent.

^369 N.E.2d at 433.

^Similar factors are discussed in cases reviewing the reasonableness of a

representative's fee. The Newman court succinctly noted:
In making the allowances the court may take into consideration the labor
performed, the nature of the estate, the difficulties attending the recovery of

the assets and location of heirs or devisees, settlements in the estate, the

peculiar qualifications of the administrator, her faithfulness and care, and all

other factors necessary to aid the court in a consideration fair to the estate

and reasonable for the personal representative and the attorney.

Id. at 433 (citing Pollard v. Barkley, 117 Ind. 40, 17 N.E. 294 (1888); Ex parte Hodges, 6
Ind. App. 487, 33 N.E. 98 (1893)).

^g N.E.2d at 434.
36
Ia\ Appellant could assume that his presence was not "necessary to prevent the

award of an unreasonable fee." Id.
S1
ld\ An interesting procedural holding prefaced the court's consideration of the

Newman appeal. The fee awards were ordered December 13, 1973. The appellant did
not file a motion to correct errors within 60 days of that order. The court held that the
order allowing the payment of fees was an appealable interlocutory order under Ind. R.
App. P. 4(B)(1). Newman's failure to appeal the order at that time, however, was not a
waiver of his appeal rights. Cf. Indiana High School Athletic Ass'n v. Raike, 329

N.E.2d 66 (Ind. Ct. App. 1975) (distinguished by the Newman court, 369 N.E.2d at 432,
because Raike concerned the appealability of orders likely to quickly become moot,

unlike the order in Newman for payment of money). Newman also held that the award
of attorney fees was not a final appealable judgment within the meaning of Ind. R. Tr.
P. 54(B). 369 N.E.2d at 431. An estate proceeding is viewed as a single in rem pro-



148 INDIANA LAW REVIEW [Vol. 12:142

4. Sale of Real Estate. —In Rainier v. Snider, 38 an intestate
decedent's spouse39 contended that an order directing a sale of real

estate was improper. The spouse was apparently a second childless
spouse and entitled, therefore, to a life estate in one-third of dece-

dent's land.
40 Indiana Code section 29-1-15-3 provides:

Any real or personal property belonging to an estate
may be sold, mortgaged, leased or exchanged under court
order when necessary for any of the following purposes:

(a) For the payment of claims allowed against the estate;
(b) For the payment of any allowance made to the surviv-

ing spouse and dependent children under twenty-one (21)

years of age of the decedent;

(c) For the payment of any legacy given by the will of
the decedent;

(d) For the payment of expenses of administration;
(e) For the payment of any gift, estate, inheritance or

transfer taxes assessed upon the transfer of the estate or

due from the decedent or his estate;

(f) For making distribution of the estate or any part

thereof;

(g) For any other purpose in the best interests of the

estate.
41

The trial court found that the property should be sold for
reasons given in sections 3(f) and 3(g). The trial court based its deci-
sion on two considerations: (1) The market value of the real estate
was at an "apparent all-time high," so that the "sale would bring
added monies into the estate,"42 and (2) the "high probability of a

later suit for partition . . . would result in considerable delay and ex-

pense" to the heirs.43

ceeding. Ind. Code § 29-1-7-2 (1976), construed in Krick v. Farmers & Merchants Bank,
151 Ind. App. 7, 279 N.E.2d 254 (1972). According to the Newman court, the order
awarding fees, made in the course of the administration of the estate, would be a final
appealable judgment only "upon an express determination that there is no just reason

of delay and upon an express direction for the entry of judgment." Ind. R. Tr. P. 54(B),

construed in In re Estate of Newman, 369 N.E.2d at 431. Since the court did not make
the determination and the direction required by the Rule, the order was an order "as
to less than all the claims and parties" and was not final. Ind. R. Tr. P. 54(B).

M369 N.E.2d 666 (Ind. Ct. App. 1977).
39A major portion of the opinion dealt with whether the appellant was in fact and

in law decedent's surviving spouse. See Garfield, Domestic Relations, 1978 Survey of
Recent Developments in Indiana Law, 12 Ind. L. Rev. 157, 189 (1978).

"Ind. Code § 29-l-2-l(b) (1976).
47d § 29-1-15-3.
"369 N.E.2d at 671.



1979] SUR VEY-DECEDENTS' ESTA TES 149

The court of appeals rejected the widow's contention that the

sale was not necessary for any of the listed statutory purposes. The

court reviewed authority in other jurisdictions with similar

statutory language and noted that it has been held that the "pur-

pose of subdivision (f) is to expedite distribution by providing an

alternative to an expensive and time-consuming collateral partition

proceeding."
44 Authority diverges as to the purpose and scope of sec-

tion 3(g). In New York, for example, the phrase "best interest of the
estate" allows consideration of the interest of all potential

beneficiaries of the estate, including the consideration that the sale

of the whole property by the personal representative might result in

a higher price than a sale of parcels after partition or might be

quicker and easier than a sale of the whole by several beneficiaries.45

In Missouri, however, the scope of the phrase "best interest of the

estate" is more limited.46 The Rainier court consulted the Commis-
sion Comments to the Indiana statute and concluded that the
broader interpretation of section 3(g) is more in line with the
legislative intent.

47 Thus, the trial court's decision that a sale was
necessary was properly based upon the two considerations stated
above. Further, since the administrator had posted bond to cover

any interest to which the widow might be entitled,48 the order of
sale was not an abuse of the trial court's discretion.

In Rainier, the sale at public auction occurred prior to the ap-

peal. Once a sale has been authorized by the court and has occurred,
the party objecting to the sale has no meaningful remedy, even if it

is later found on appeal that the trial court abused its discretion in

ordering the sale.49 Furthermore, there is no way to prevent a sale
authorized under section (f) or (g). Indiana Code section 29-1-15-4 pro-
vides that an order authorizing a sale "for the payment of obliga-
tions of the estate shall not be granted if any of the persons inter-

ested in the estate shall execute and file in the court a bond . . . ."50

"Id. (citing Wade v. Bigham, 178 Misc. 305, 34 N.Y.S.2d 22 (1941)). The Indiana
statute was based upon the New York statute construed in Wade. See Ind. Code Ann.
§ 29-1-5-3, Commission Comments (Burns 1972).

i5In re Perkins' Will, 55 Misc. 2d 834, 286 N.Y.S.2d 586 (1967).

"Mcintosh v. Connecticut Gen. Life Ins. Co., 366 S.W.2d 409 (Mo. 1963). In ex-

plaining the Mcintosh approach, the Rainier court stated: "Under this view, neither

the fact that it is desirable to sell land because of inability to satisfactorily partition,

nor the fact that the land might bring a higher price as a whole is held related to the

administration of the estate." 369 N.E.2d at 670.
47369 N.E.2d at 671.

"At the time of the sale, the appellant's status as surviving spouse had not been
determined. See note 39 supra.

49The transferred property cannot be recovered because good faith purchasers

are protected. See Ind. Code §§ 29-1-10-19, -15-19 (1976 & Supp. 1978).
*°Id. § 29-1-15-4 (1976).



150 INDIANA LAW REVIEW [Vol. 12:142

This section, by its explicit language, applies only when a sale is
necessary for purposes listed in section 29-l-15-3(a), (b), (d), and (e).51

5. Absentee Estates. — Overpeck v. Dowd52 was the most factu-
ally complicated case decided during the survey period. The appeal
was taken from order of heirship entered in the course of the ad-
ministration of three "absentees" — Alice, Ida, and Laura Hendrix-
son. The decrees did more than determine heirship; they con-
templated distribution of property claimed by the appellant, Brian
Overpeck.53 Although Overpeck was not an heir of Alice, Ida, or
Laura, the court of appeals found that he was a person aggrieved by
the decrees and, therefore, had standing to appeal.54 The appellate
court then held that the trial court had no jurisdiction to grant let-

ters of administration in the Hendrixson estates.55 The statute per-
mitting the opening of absentee estates applies only to persons who
at some time have been residents of Indiana.56 Since Alice, Ida, and
Laura had never been residents of this state, the letters of ad-
ministration were void.57

The administrator of the Hendrixson estates had sold a parcel of
real property during the course of the administration, and the sale

had apparently been approved by the trial court. At the time of the
sale, the administrator was acting under the authority of his letters
of administration and under the assumption that Alice, Ida, and

51
Ia\ These are the only sections that authorize a sale for payment of obligations

of the estate.
62364 N.E.2d 1043, modified on rehearing, 368 N.E.2d 1175 (Ind. Ct. App. 1977).
MThe decrees directed the Hendrixson administrator to file his final accounting

and petition for distribution and closing of the estates. 364 N.E.2d at 1048. The only

property to be distributed from the estates was property in which Overpeck claimed

an interest.
M/d at 1048 (construing Ind. Code § 29-1-1-22 (1976)). The statute provides in part:

"Any person considering himself aggrieved by any decision of a court having probate
jurisdiction in proceedings under this code may prosecute an appeal to the court hav-
ing jurisdiction of such appeal." Ind. Code § 29-1-1-22 (1976).

56364 N.E.2d at 1049.
m
Ind. Code § 29-2-5-1 (1976) provides in part:

When any resident of this state shall have absented himself from his
usual place of residence and gone to parts unknown for a period of five (5) years,
. . . the court shall have jurisdiction over the estate of such person in the

same manner and to the same extent as if he were dead, and shall appoint an

administrator of his estate, who shall have all of the powers and rights over
such estate and be subject to all of the liabilities and duties in relation

thereto that appertain to administrators of decedent's estates.

See id. §§ 32-6-6-1, -2, which provides a procedure for quieting title to real estate claimed

by an absent nonresident.

"The court stated: "When a court is without jurisdiction, it possesses the power
to do nothing except enter an order of dismissal." 364 N.E.2d at 1049 (citing Squarcy v.

Van Home, 321 N.E.2d 858 (Ind. Ct. App. 1975)).



1979] SURVEY-DECEDENTS' ESTATES 151

Laura were the owners of the property. The appellate court, in its
original opinion, stated that the trial court did not possess jurisdic-

tion to order the sale.58 On rehearing, the court of appeals modified
its opinion by recognizing that acts lawfully performed by a per-

sonal representative under the apparent authority of letters of

administration are valid, even though the authority of the personal

representative is subsequently terminated.59

The decision of the court regarding the trial court's lack of
jurisdiction over the Hendrixson estates was correct in light of the
language of the absentee estate statute. The later decision regard-
ing the validity of the acts of the Hendrixson administrator was
likewise proper. Other statements in the Overpeck opinion,
however, are misleading. Because the setting of the case is so

unusual, a few comments on the course of events leading up to the
appeal are necessary.

The opening of the Hendrixson estates was prompted by a
decree in the estate of Ruth Cox Vaught, who died December 9,
1972. Soon after Vaught's estate was opened, the executor of her
estate filed a petition for the construction of the will of James W.
Puett, who died in 1909. Apparently, the Vaught executor wanted to
determine if Vaught owned any of the real estate devised by Puett
in his will. James Puett, in his will, devised all his real estate to his
wife, Jane, for her life.60 Puett devised the remainder interest in one

tract (Tract I) of his real estate to a niece and the remainder in-

terest in the rest of his real estate (Tract II) to Ruth Cox Vaught for
life, then in fee to the children of Ruth Vaught who survived her,
and if no children survived her, in fee to Alice, Ida, and Laura Hen-

drixson.
61

The trial court, in the Vaught estate proceeding, construed
Puett's will and, on January 21, 1974, decreed: (1) Ruth Vaught took
only a life estate in Puett's real estate, (2) title to Tract I vested in

fee simple in Brian Overpeck at Vaught's death,62 and (3) title to
Tract II vested in Alice, Ida, and Laura if they had survived Ruth
Vaught.63 If Alice, Ida, and Laura had not survived Ruth Vaught, the

58364 N.E.2d at 1051.
59368 N.E.2d at 1176 (citing Ind. Code § 29-1-10-19 (1976)).
""Apparently, Jane was also the residuary beneficiary of Puett's estate. 364

N.E.2d at 1048.
61
I<L at 1045-46. This is merely a summary of the language of Puett's will. The

language is quoted in part at note 63 infra.
820verpeck was an heir at law of Jane Puett. Apparently, he was also an heir or

devisee of the niece who was given Tract I by the terms of James Puett's will. See
text accompanying note 61 supra.

^Ruth Vaught did not have children. Thus, the alternative devise to Alice, Ida,
and Laura was effective. The court in construing Puett's will determined that the



152 INDIANA LAW REVIEW [Vol. 12:142

court decreed that the devise of Tract II had lapsed, and title to
Tract II vested in the heirs of Puett's wife, Jane, who had been
Puett's residuary beneficiary and who had died intestate. Because
the court did not know whether Alice, Ida, and Laura had survived
Ruth Vaught, the decree stated that the court was without suffi-
cient evidence "to complete the construction of the last will and
testament of James W. Puett as to Tract II." 64 The trial court
directed the guardian ad litem appointed to represent Alice, Ida,

and Laura to "take such steps as he may deem necessary and proper
to protect the interest of said missing heirs under the laws of the
State of Indiana pertaining to missing heirs."65

The day after this decree in Vaught estate, petitions were filed
to open absentee estates for Alice, Ida, and Laura. Soon after the
estates were opened, the administrator petitioned the court for in-
terim distribution of Tract II.66 The trial court responded to this

devise to Alice, Ida, and Laura not only was subject to the contingency that Ruth

Vaught died without children surviving her, but also was subject to the contingency

that Alice, Ida, and Laura survive Ruth Vaught. This conclusion seems questionable in

light of the lack of survivorship language in reference to Alice, Ida, and Laura. The

devise read, in pertinent part, as follows:

Also after the death of my said wife I give and devise the residue of my real
estate [Tract II] to said Ruth P. Cox, to have and hold during her life time

and upon the death of my said wife and said Ruth, I give and devise said
residue of my real estate to the children of said Ruth P. Cox, then living
whether they be born before or after my death, it being my intention and
will that said residue shall after the expiration of said life estate therein des-

cend to and become the property in fee simple of such child or children as

she may hereafter bear and have living at such time whether the same be
born before or after my death, but should there be none living at such time
then I give and devise such residue of my real estate to the three daughters
of my sister Lousia Hendrixson by her second marriage, namely Alice, Ida
and Laura.

364 N.E.2d at 1045-46.
M364 N.E.2d at 1046.
%b
Id. The guardian ad litem had been appointed some time prior to the court's

first decree construing Puett's will.
66This petition was filed after the court in the Vaught estate, on April 15, 1974,

made a nunc pro tunc entry regarding Tract II as follows:
Court further finds that under the language of Item Second of the will of

James W. Puett, a remainder interest in all of the remaining real estate owned
by James W. Puett at the time of his death, herein referred to as Tract II,
was limited to the three daughters of the testator's sister, Lousia Hendrix-

son, by her second marriage, namely, Alice, Ida and Laura.

364 N.E.2d at 1046. The relevant language of Item Second of the last will of James

Puett is quoted at note 63 supra. The appellees in Overpeck insisted that the language

of this nunc pro tunc finding "vested descendible title in Alice, Ida, and Laura." 364

N.E.2d at 1050. The court of appeals disagreed, stating that the language of the find-

ing was ambiguous. Id. On the one hand, the language of the finding suggests that the
court was no longer committed to its earlier conclusion that the devise to Alice, Ida,



1979] SURVEY-DECEDENTS' ESTATES 153

petition by entering an order directing the executor of the Vaught

estate to "surrender, turn over and deliver" Tract II to the ad-

ministrator of the Hendrixson estates.67 Subsequently, but before

the survivorship status of Alice, Ida, and Laura was determined,

Tract II was sold by the Hendrixson administrator. This transaction

was the sale referred to at the start of this discussion.68

After the sale of Tract II, the court was presented with
evidence that Alice, Ida, and Laura had predeceased Ruth Vaught.

This discovery prompted another decree in the Vaught estate pro-

ceeding.
69 On June 25, 1975, the trial court decreed that the devises

from Puett to Alice, Ida, and Laura had lapsed and that their in-

terests reverted to Puett's estate, passed under Puett's residuary

clause to his widow, Jane, and passed upon her death intestate to

her heirs.70 Brian Overpeck, an heir of Jane Puett, claimed by virtue

of this decree an interest in the proceeds of Tract II. Thus, subse-

quently, when the court in the Hendrixson estates entered the order
contemplating distribution of the proceeds,71 Overpeck brought the

present appeal.

The appellees in Overpeck were the apparent heirs of Alice, Ida,
and Laura. The appellees argued on appeal that Overpeck had waived
any claim to the proceeds of the sale of Tract II "when he failed to
object to the opening of the Hendrixson estates, the interim

distribution from the Vaught estate, and the sale of the real estate
by the Hendrixson estates." 72 Although the Overpeck court's conclu-
sion that the trial court was without jurisdiction to administer the
Hendrixson estates answered all of the heirs' contentions, the court

of appeals nonetheless explained why it would not have found a
waiver by Overpeck even if the trial court had possessed jurisdic-

tion. In the course of the explanation, the court reached conclusions

that are arguably correct only when read in light of the fact that no
appeal was ever taken in the Vaught estate proceeding.

First, the Overpeck court stated: "We hold that the trial court
had jurisdiction to construe the Puett Will as part of the pro-

ceedings in the Vaught estate."73 The only statute cited in support of

and Laura was contingent upon their survival of Ruth Vaught. See discussion in note

63 supra. On the other hand, the court, in the April 15 entry, made no order concern-
ing the title to Tract II, only this finding of fact. In a later decree, discussed in the

text accompanying note 69 infra, the court again attached the condition of survivorship

to the devises to Alice, Ida, and Laura.
67364 N.E.2d at 1047.

^See text accompanying notes 57-58.
69This was the third decree in the Vaught estate. The second decree is discussed

at note 66 supra.
70364 N.E.2d at 1046-47.
nSee note 53 supra and accompanying text.
72364 N.E.2d at 1049.
73ta at 1051.



154 INDIANA LAW REVIEW [Vol. 12:142

this statement was Indiana Code section 29-1-6-5, which provides:

The court in which a will is probated shall have jurisdic-
tion to construe it. Such construction may be made on a peti-
tion of the personal representative or of any other person in-

terested in the will; or, if a construction of the will is

necessary to the determination of an issue properly before

the court, the court may construe the will in connection with
the determination of such issue. When a petition for the con-
struction of a will is filed during administration of the

estate, notice of the hearing thereon shall be given to in-

terested persons. If the estate has been closed prior to the

filing of such petition, notice shall be given as in civil ac-

tions.
74

By its explicit language, this section gave the court the authority to
construe only the probated will (the Vaught will). It did not give the
court the authority to construe another will (the Puett will) even

though it was tangentially related to the Vaught probate pro-
ceedings. The jurisdiction to construe the Puett will, however, was
never challenged. The Hendrixson heirs were represented in the
Vaught proceeding by a guardian ad litem appointed to represent
their predecessors in interest, Alice, Ida, and Laura.75 All the in-

terested parties were apparently represented when the Puett will
was construed. Thus, it seems that the decrees construing Puett's
will are binding on the parties before the court, even though the

court technically did not have jurisdiction to construe that will

under section 29-1-6-5.

Second, the Overpeck court stated: "[T]he June 25, 1975, decree
in the Vaught estate adjudicated vesting of title to Tract II in the
heirs of Jane Puett."76 In the course of the administration of a dece-
dent's estate, the court exercising probable jurisdiction has the

authority to adjudicate title to real estate in only one situa-

tion—upon a petition to sell or mortgage real property if the peti-
tion to sell or mortgage seeks such relief.77 A binding adjudication of

74
Ind. Code § 29-1-6-5 (1976). The court did not cite the statute establishing the

power and jurisdiction of the Parke County Circuit Court. Perhaps, by this statute, the
court did have "jurisdiction" to construe the Puett will. See id. § 33-4-4-3.

75See id. § 29-l-l-20(a), (d) regarding the effect of representation by a guardian ad
litem.

78364 N.E.2d at 1051.
77
Ind. Code § 29-1-15-12 (1976) provides:

Upon any petition to sell or mortgage real property the court shall have
power to investigate and determine all questions of conflicting and con-
troverted title, remove clouds from any title or interest involved, and invest
purchasers or mortgagees with a good and indefeasible title to the property



1979] SURVEY-DECEDENTS' ESTATES 155

title, however, apparently did, in fact, occur by virtue of the decree

in the Vaught estate proceeding. Even though there was no petition
for sale or mortgage requesting an adjudication of title, all the in-

terested claimants were represented when the decrees were
rendered, and they all were bound by the unappealed final judgment

in the Vaught estate.

B. Statutory Developments

Several amendments to the Probate Code were enacted during
the survey period.78 The survivor's allowance provision now provides

sold or mortgaged. When the petition to sell or mortgage seeks such relief
notice shall be given as in civil actions of like nature and the court is

authorized to issue appropriate process and notices in order to obtain

jurisdiction to so proceed against adverse parties.
78The following statutory changes should be noted. Ind. Code § 29-1-2-12 (Supp.

1978), as amended by Act of Mar. 9, 1978, Pub. L. No. 2, § 2901, 1978 Ind. Acts 568,
now provides that a "person who is convicted of murder, causing suicide, or voluntary
manslaughter shall . . . become a constructive trustee of any property acquired by him

from the decedent or his estate because of the offense . . . ." Prior to the amendment,

the statute provided that a person "legally convicted of intentionally causing the death

of another, or of aiding or abetting therein, shall . . . become a constructive trustee of

any property, real or personal, acquired by him from the decedent or his estate

because of such death . . . ." Ind. Code § 29-1-2-12 (1976). The deletion of the word

"legally" is insignificant. The amended statute applies only to persons convicted of the
specified offenses. Query whether property acquired because of the offense is somehow
a less inclusive description than property acquired because of the death.

Ind. Code §'29-l-7.5-2(a)(4) (Supp. 1978), as amended by Act of Mar. 7, 1978, Pub.
L. No. 132, § 8, 1978 Ind. Acts 1171, includes the guardian of an heir, legatee, or

devisee as a person who must freely consent to and understand the significance of un-
supervised adminstration before a petition for unsupervised administration will be

granted. Ind. Code §§ 29-1-7.5-6, -7 (Supp. 1978), as amended by Act of Mar. 7, 1978,
Pub. L. No. 132, §§ 4, 5, 1978 Ind. Acts 1170, provide that the claim of a person under

a disability is barred if not asserted within the time periods set forth in these sections.

Ind. Code § 29-l-15-19(c) (Supp. 1978), as added by Act of Mar. 7, 1978, Pub. L. No. 132,

§ 10, 1978 Ind. Acts 1173, specifically provides for the protection of good faith pur-

chasers of real estate from an unsupervised personal representative.

Ind. Code § 29-1-8-4.5 (Supp. 1978), as added by Act of Mar. 7, 1978, Pub. L. No.

132, § 6, 1978 Ind. Acts 1170, will aid in the collection of small estates by affidavit. The
claimant may present his affidavit to the court and receive, without notice or hearing,
a court order "that the claimant is entitled to payment or delivery of the property."
This should satisfy creditors wary of paying or delivering property on the strength of
the affidavit alone.

Ind. Code § 29-l-14-17(a) (Supp. 1978), as amended by Act of Mar. 7, 1978, Pub. L.
No. 132; § 8, 1978 Ind. Acts 1171, now provides that the personal representative may
act upon a claim in his favor which accrued during the decedent's lifetime if "all heirs

and legatees who would be affected by the allowance of the claim consent in writing to
it." Prior to this amendment, the personal representative's claim was treated as
disallowed and transferred for trial in all cases. Now it is treated as disallowed only if
all affected heirs and legatees do not consent.



156 INDIANA LAW REVIEW [Vol. 12:142

that, if there is no surviving spouse, the "decedent's children who
are under eighteen (18) years of age at the time of the decedent's

death" are entitled to share equally the $8,500 allowance.79 The prior
provision referred to the decedent's "dependent children."80 Certain-

ly it will be easier for the courts to apply the age rather than the

dependency provision, and probably the same children would take
under either description in the vast majority of cases.

Subsection c, added to section 29-1-5-3, specifically provides that

a will may be made self-proved by execution of a document
u
that

substantially contains the declarations set out in" the self-proved

will provision.
81 The self-proved will provision itself sanctions

substantial compliance in the form and content of the declaration.82

The amendment merely clarifies, but does not change, existing law.
Previously, section 29-1-15-15 required that specified notice pro-

cedures be followed by a personal representative in sales of real

property at public auction.83 This section was amended to provide
that all sales of real property, whether at public or private sale, may
be made with or without notice as directed by the court.84 If notice
is required by the court, the personal representative "shall give

such notice as the court orders."85

Since 1972, under the guardianship provisions of the Probate

Code, "upon a showing that the ward will probably remain incompe-
tent during his lifetime," a guardian may apply for and receive court
authority to dispose of principal or income of the ward's estate in

excess of the amount likely to be required for the future care of the
ward "in order to effect and carry out such estate planning as the
court may determine to be appropriate for the purposes of minimiz-
ing current and prospective income and estate or other taxes . . . ."88

Finally, it should be pointed out that, effective January 1, 1979, the Marion Coun-

ty Probate Court is abolished, and jurisdiction over probate matters will reside ex-

clusively in the newly created Marion County Superior Court. See Ind. Code §
33-5-35.1-4 (Supp. 1978), as amended by Act of Apr. 21, 1977, Pub. L. No. 313, § 4, 1977
Ind. Acts 1440.

7
*Ind. Code § 29-1-4-1 (Supp. 1978), as amended by Act of Mar. 7, 1978, Pub. L.

No. 13&, § 1, 1978 Ind. Acts 1167.
m
Ind. Code § 29-1-4-1 (1976) (amended 1978).

81
Ind. Code § 29-l-5-3(c) (Supp. 1978), as added by Act of Mar. 7, 1978, Pub. L. No.

132, § 2, 1978 Ind. Acts 1167.
82
Ind. Code § 29-l-5-3(b) (Supp. 1978). The subsection provides that the self-

proving declaration must be in "form and content substantially as" worded in the

statute.

"Id. § 29-1-15-15 (1976) (amended 1978).
MJd (Supp. 1978), as amended by Act of Mar. 7, 1978, Pub. L. No. 132, § 11, 1978

Ind. Acts 1167. The amended statute adopts for all sales of real estate the rule
previously applicable only to private sales.

85
Ind. Code § 29-1-15-15 (Supp. 1978).

"Id. § 29-l-18-33(c) (1976) (amended 1978).



1979] SURVEY-DOMESTIC RELATIONS 157

This provision has now been made even more flexible by the inclu-
sion of the following language: "In addition, the court may also
authorize the guardian to apply or dispose of the excess principal or

income for any other purpose the court decides is in the best in-

terest of the ward, his estate, his spouse, or his family."87

IX. Domestic Relations

Helen Garfield*

A. Adoption

1. Abandonment. — When a child with living parents is to be
adopted, the consent of the child's natural parents is normally re-

quired.
1 Certain specific instances where consent is not required are

enumerated in the adoption statutes;2 the first of these is abandon-

ment.3 Three decisions interpreting the abandonment section were
handed down by the Indiana Court of Appeals during the survey
period.

4 None of these cases was concerned with the traditional com-
mon law concept of abandonment, which involves an intentional
relinquishment of all parental rights and duties to the child.5 They
dealt, rather, with the less stringent statutory grounds for dispens-

ing with the consent of a non-custodial parent.6 These provisions

permit a court to make what is, in effect, a finding of abandonment
without the stringent proof of intent to abandon which would other-

wise be required.7

87
Ind. Code § 29-l-18-33(c) (Supp. 1978), as amended by Act of Mar. 7, 1978, Pub.

L. No. 132, § 11, 1978 Ind. Acts 1167.
*Associate Professor of Law, Indiana University School of Law— Indianapolis.

J.D., University of Colorado, 1967.

'Ind. Code § 31-3-l-6(a)(l) (1976).
2
Id. § 31-3-l-6(g). These include abandonment, voluntary relinquishment of the

right to consent, and prior involuntary termination of parental rights. Id.
3/d § 31-3-l-6(g)(l).
4
Rosell v. Dausman, 373 N.E.2d 185 (Ind. Ct. App. 1978); In re Adoption of Dove,

368 N.E.2d 6 (Ind. Ct. App. 1977); Young v. Young, 366 N.E.2d 216 (Ind. Ct. App. 1977).
Rosell and Young deal with the statute as it existed prior to the 1975 amendments,
Act of Apr. 14, 1971, Pub. L. No. 421, § 1, 1971 Ind. Acts 1962, 1963 (amended 1975,
1978).

5See Murphy v. Vanderver, 349 N.E.2d 202, 203 (Ind. Ct. App. 1976).
6
Ind. Code § 31-3-l-6(g)(l) (1976).

7The version of the statute in effect from 1975 until 1978 made it fairly clear that
the legislature intended to establish a lesser category of abandonment. This intent is

less clear under the 1978 amendments. The earlier version, Ind. Code § 31-3-l-6(g)(l)
(1976) (amended 1978), provided: