IN THE MATTER OF THE ESTATE OF WILLIAM NYE, DECEASED, BONITA LOUISE GROVE WEBSTER v. FIRST NATIONAL BANK OF WARSAW, WARSAW, INDIANA, ROBERT E. NELSON, KATHERN R. NELSON, DONALD BAUM, THEODOSIA BAUM, UNITED METHODIST CHURCH OF WARSAW, INDIANA, AND JAMES WHITCOMB RILEY HOSPITAL (TRUSTEES OF INDIANA UNIVERSITY).
No. 1271A259
Court of Appeals of Indiana
Filed August 6, 1973
Rehearing denied October 9, 1973
Transfer denied April 10, 1974.
236 N.E.2d 123
Byron C. Kennedy, Herbert H. Bent, Rockhill, Kennedy, Pinnick, Sand & Bent, of Warsaw, for appellee First National Bank of Warsaw, Indiana; Byron P. Hollett, Virgil L. Beeler, Jerry D. Harner, Baker & Daniels, of counsel, for appellee The Trustees of Indiana University.
I.
WHITE, J.- What is at stake here is the residue of a decedent‘s estate. The question is whether James Whitcomb Riley Hospital for Children, Indianapolis, takes it by virtue of testator‘s Indiana will or whether his deceased wife‘s nieces and nephew take it under a later Florida will which, if valid, revokes his earlier Indiana will.1 That the Indiana will is valid unless so revoked is not disputed. The only dispute is whether the Florida will was valid when executed. That dispute was litigated in Florida where it was adjudged, in Riley Hospital‘s contest of the Florida will, that the Florida will is valid. When appellant, a residuary legatee of the Florida will, contested the Indiana will in Indiana the trial court refused to accept the Florida judgment as con-
We reverse.
II.
We shall hereinafter refer to the decedent, William Nye, as “testator“, since by everyone‘s version he did die testate, either by virtue of his death bed Florida will or his earlier Indiana will. He was born in Warsaw, Kosciusko County, Indiana, June 10, 1882, and died, at eighty-eight years of age, June 14, 1970, in Bradenton, Manatee County, Florida. He grew up, married, and engaged in the retail jewelry business in Warsaw until he reached retirement age. His wife died in 1951 (when he would have been 68 or 69 years old). No children were ever born to his marriage and it appears that he was survived by no blood relatives (or at least none close enough to be mentioned as such in either of his wills). In 1925 testator and his wife began to spend a part of every winter in Florida. After her death he sold his dwelling house in Warsaw. (So far as the record discloses, it may have been the only real estate he ever owned.) He then began to spend more time each winter in Florida, but returned every spring to Warsaw where he stayed in a furnished apartment in a friend‘s house. Testator paid rent for the apartment while he stayed in it but not while he was in Florida, even though it was never occupied by anyone else. In Florida he lived in a mobile home court where he leased space for a mobile home, titled in his name and the name of Donald Baum of Warsaw (a beneficiary of both wills whose relationship, if any, to testator is not disclosed by the record). When testator was not in Warsaw he left no tangible property there (and had none elsewhere in Indiana) but he did maintain a safe deposit box in the First National Bank in Warsaw in
Testator‘s Indiana will (replacing an earlier will) was executed at Warsaw, September 23, 1966. Minor changes were made by codicils in 1968 and 1969. By this will specific bequests were made to his deceased wife‘s nieces and nephew, to friends, and to the Warsaw Methodist Church. The bulk of his estate, including all his stock in the Warsaw bank, was given by residuary bequest to James Whitcomb Riley Hospital for Children.
On June 6, 1970, while still in Florida, but about to return to Warsaw for the summer, testator fell and broke his hip. He was taken to the Manatee Memorial Hospital in Bradenton, Florida, where he remained until he died on June 14, 1970. Robert Nelson, his nephew by marriage who, under the Indiana will, was to share in testator‘s estate only to the extent of receiving one-fifth of his stock in the Mentone bank, arrived soon thereafter. Nephew Robert employed a local attorney who drew a will which was signed by testator on June 12, 1970. That will, the Florida will, increased the bequest to the Warsaw Methodist Church from $2,000.00 (per the last codicil to the Indiana will) to $3,000.00 and gave $10,000.00 “to Donald Baum and Theodosia Baum, Warsaw, Indiana, share and share alike“, rather than, as by the Indiana
The day after the Florida will was executed Robert Nelson arrived at the Bank (i.e., the First National Bank of Warsaw, Indiana, executor of the Indiana will) and by virtue of a power of attorney which testator had signed on June 8, 1970, was permitted to open testator‘s safe deposit box and remove its contents (which did not include his Indiana will, it being in the possession of his Indiana attorneys who are also attorneys for the Bank).
The next day, June 14, 1970, testator died. On June 16, 1970, the day of his funeral in Warsaw, his Indiana will was probated at Warsaw and the Bank was appointed executor. Three days later, June 19, 1970, his Florida will was probated in the County Judge‘s Court in and for Manatee County, at Bradenton, Florida, and Robert E. Nelson was appointed executor.
On July 3, 1970, the Trustees (i.e., James Whitcomb Riley Hospital) commenced a contest of the Florida will by filing in the Florida court where it was probated a petition to set aside the probate of the Florida will. Their petition alleged, (1) that testator was a resident of Kosciusko County, Indiana, not of Florida; (2) that the Florida will was not executed in the manner provided by Florida law; (3)
On October 20, 1970, the Florida court held a hearing on the issue of the legality of the manner in which the Florida will was executed. On October 22, 1970, the Florida court issued its “Order of Confirmation of Probate as to Execution of Will” in which it was “ordered and adjudged. . . . That the petition for revocation of probate as to improper execution be and the same is hereby denied . . . [and] the petition for confirmation in regard to proper execution of the will be and the same is hereby granted and probate is hereby confirmed as to the due and proper execution of the Will.”
On December 14, 1970, the action from which this appeal arises was commenced. Bonita Louise Grove Webster, a niece and residuary legatee of the Florida will, filed her “Complaint to Contest Validity of Will“. It alleged that the Indiana will had been revoked by the Florida will and also recited what had occurred (to that date) in the Florida will contest. All other beneficiaries of both wills and the First National Bank of Warsaw (hereafter “Bank“) were made parties defendant but the record is unclear as to service. Appearances and answers are shown only for the Bank and the Trustees.4
While this Indiana will contest was still pending (in the Wabash Circuit Court on change of venue from the Kosciusko Circuit Court) and prior to its submission for trial, the trial of the Florida will contest was concluded. On March 18, 1971,
“ORDERED AND ADJUDGED:
“1. The Court does hereby reaffirm that Order entered the 22nd day of October, 1970 confirming the Order of Probate as to the execution of the Last Will and Testament of the decedent, William Nye.
“2. The Court reaffirms the directed verdict in favor of the Respondents herein granted at the close of all of the evidence following the trial herein as to the testamentary capacity of William Nye, deceased.
“3. William Nye was domiciled in the State of Florida, County of Manatee.
“4. Neither Robert E. Nelson nor any other person exercised any undue influence upon or against the decedent and that the Order of Probate originally entered herein is hereby confirmed in all respects and that Robert E. Nelson, as executor, may proceed with the administration of the Estate of William Nye, deceased.”
That Florida judgment was brought before the Indiana trial court by affidavits and certified copies appended to a motion for summary judgment filed by plaintiff in response to the defendant Bank‘s motion for summary judgment. At that time the Indiana will contest was at issue on plaintiff‘s complaint and on answers by defendants Bank, the executor, and the Trustees, the principal Indiana will‘s beneficiary. Those answers alleged that the Florida will was invalid because (1) testator was incompetent, (2) duress, (3) fraud, (4) undue influence, and (5) execution not in compliance with law.
After a hearing on the two opposing motions for summary judgment, the court overruled plaintiff‘s motion and took the defendant Bank‘s motion under advisement. Thereupon the parties agreed to submit to the court for trial “the issue of
The trial court‘s findings of fact noted that the Bank “was not a party or in privity with any party to the Florida will contest proceedings“. Its conclusions recited that the Bank, as executor, “is a necessary party to this will contest action and has the legal right and duty to defend the [Indiana] will.” The court also concluded that “[t]he judgment or order of the . . . [Florida court] that William Nye died domiciled in the State of Florida is not binding on the Court or oust this Court from jurisdiction to determine the issues of this will contest action, including the issue of domicile.”
III.
Whatever may have been the purpose for which domicile was an issue in Florida or the purpose for which the parties agreed to submit to the court for trial in the Indiana contest, it is nevertheless an issue which affects interests other than those affected by the question of whether the Florida or the
Riley involved, as does the case at bar, the extraterritorial effect of a finding of domicile in support of a judgment confirming probate of a will. The United States Supreme Court there said:
“So far as the assets in Georgia are concerned the Georgia judgment of probate is in rem; so far as it affects personalty beyond the state, it is in personam and can bind only parties thereto or their privies. This is the result of the ruling in Baker v. Baker, Eccles & Co., 242 U.S. 394, 400, 61 L. Ed. 386, 391, 37 S. Ct. 152. Phrased somewhat differently, if the effect of a probate decree in Georgia in personam was to bar a stranger to the decree from later asserting his rights, such a holding would deny procedural due process.” (315 U.S. at 353, 86 L. Ed. at 893, 62 S. Ct. at 614.)
There, as here, the decedent‘s personal representative in the second state was not a party to the will contest in the first state. In rejecting the contention that the New York administrator c.t.a. (the personal representative in the second state) was nevertheless bound in personam by the Georgia judgment the court said:
“We find nothing in either of these cases [Tant v. Wigfall, 65 Ga. 412 and Wash v. Dickson, 147 Ga. 540, 94 S. E. 1009], however, which would lead to the conclusion that in Georgia, the New York administrator c.t.a. was in privity, so far as the sequestration of assets for the payment of death taxes or indebtedness of decedent or her estate is concerned, with any parties before the Georgia court, or that the New York representative could not take steps in Georgia courts which might result in its getting possession of any assets which under the Georgia law of administration would be properly deliverable to a foreign domiciliary administrator.” (Emphasis added.) (315 U.S. at 352, 86 L. Ed. at 893, 62 S. Ct. at 613.)
And further:
“It seems quite obvious that the [New York] administrator c.t.a. appears in Delaware [where it sought to have decedent‘s stock in a Delaware corporation transferred to it] as an agency of State of New York, and not as the alter ego of the beneficiaries of the Hungerford estate. In its answer to the petitioners’ statement of claim it established its status by alleging that not merely the beneficiaries but creditors residing in New York and the State of New York were interested in the estate. . . .” (315 U.S. at 354, 86 L. Ed. at 894, 62 S. Ct. at 615.)
Since the Bank, as the personal representative charged with the administration of decedent‘s estate, represents interests
“. . . conflicting decisions upon the same issue of fact do not necessarily connote erroneous judicial action. Differences in proof and the latitude necessarily allowed to the trier of fact in each case to weigh and draw inferences from evidence and to pass upon the credibility of witnesses, might lead an appellate court to conclude that in none is the judgment erroneous.”
Here there well may be no differences in proof, no question of credibility, and no conflict in the evidence, but there is, nevertheless, “latitude necessarily allowed to the trier of fact in each case to . . . draw inferences from [the same] evidence“.
We have very carefully reviewed the evidence before the trial court on the question of domicile and find that there is little contradiction, if any, by one witness of facts stated by another witness. It may therefore be said that there is no conflict in the evidentiary facts, but there is much conflict in the ultimate inference to which various bits of that evidence point. For example, testator maintained his voter registration in Indiana but registered his automobile at his Florida address. He owned (jointly with Donald Baum of Warsaw, a beneficiary of both his wills) the mobile home
IV.
After the court found that testator was domiciled in Indiana, the parties agreed to submit to the court for trial without jury the question of whether the manner of execution of the Florida will complied with law. Again the stipulated evidence was affidavits, depositions, and other writings, substantially the same as that before the court on the domicile issue, including the Florida final judgment which confirmed the earlier Florida order of October 22, 1970, which had found that the Florida will had been executed in substantial compliance with Florida statutory requirements and adjudged its execution to be due and proper.
The trial court‘s findings of fact and conclusions of law which followed the trial of that issue include the finding that the Florida court had
The trial court‘s third, fourth, and fifth conclusions of law are that:
“3. The findings of fact, conclusions of law and order or judgment of the County Judge‘s Court in and for Manatee County, Florida, that the Florida Will was validly executed are not binding on this Court and do not oust this Court from jurisdiction to determine the issues of this Will contest action, including the issue of whether the manner of execution of the Florida Will complied with law.
“4. The Florida Will was not validly executed under either Indiana or Florida law.
“5. The Florida Will being invalid, it does not revoke the Indiana Will of William Nye.”
Plaintiff contends the Florida determination that the manner of execution complied with Florida law is conclusive and should have been followed in Indiana. The Trustees, who were the plaintiffs in the Florida litigation, contend that they are not bound by the Florida judgment because three requisites of res judicata are not present: (1) identity of causes or issues, (2) mutuality of estoppel and (3) finality of the judgment. The Bank adopts the Trustees’ contentions and separately contends that the Florida judgment is not binding on it because it was neither a party, nor the privy of a party, to the Florida contest. No one contends, however, that if the Florida will was, in fact, executed in conformity with the law of Florida that it would not be valid in Indiana. Indeed such a contention would not withstand
“29-1-5-5 [6-505]. When a will legally executed.—A will is legally executed if the manner of its execution complies
with the law, in force either at the time of execution or at the time of the testator‘s death, of (1) This state, or
(2) The place of execution, or
(3) The domicile of the testator at the time of execution or at the time of his death. [Acts 1953, ch. 112, § 505, p. 295.]”
Whether Florida statutes contain a similar provision8 is immaterial since the will was executed in Florida by one held by the Florida court to be domiciled in Florida, so only Florida law could apply. The result is that in Indiana the question of due execution includes both the Florida issue of whether execution complied with Florida law and the additional Indiana issue of whether execution complied with Indiana law. The addition of an issue to the Indiana case is reason enough for holding that the causes of action in the two states are not identical. We shall, therefore, give no further consideration to the question of identity of causes of action and proceed to determine whether the doctrine of collateral estoppel renders erroneous the trial court‘s determination of the issue of due execution.9
Because there is this additional issue in Indiana the appellees contend there is no mutuality of estoppel. Appellees’ reasoning is that a Florida judgment invalidating the Florida will under Florida law would not have prevented the proponents of that will from litigating in Indiana its validity under Indiana law. What they fail to state, however, is that it would have estopped them from relitigating in Indiana the issue of whether execution complied with Florida law. And since collateral estoppel precludes relitigation of issues, not causes of action, it is beside the point that all issues in the second cause of action are not barred.10
Appellees contend that no issue in the case at bar is identical to any issue in the Florida contest because the burden of proof has shifted. In Florida the burden of proof was on the Trustees to overcome the prima facie proof of formal execution and attestation which the proponents were required to make11, while in Indiana the Trustees bear no burden at
Our research suggests that the point raised by appellees has gone entirely unnoticed by the writers of textbooks, encyclopedias, law journals and restatements of the law and has been mentioned in but two reported cases.13
However, in Vestal, Preclusion/Res Judicata Variables: Criminal Prosecutions, 19 VANDERBILT L. R. 683, 701, the author discusses a closely related question illustrated by the case of a widow who was acquitted in a criminal prosecution for murdering her husband who thereafter, in a civil suit for the proceeds of his life insurance, was found to have murdered him.14 The rationale of that result he explains as follows:
“Although this result seems unduly harsh and illogical at first glance, there is a valid explanation which justifies it. In criminal actions the burden of proof is ‘beyond a reasonable doubt,’ while in civil actions the burden is proof by ‘a preponderance of the evidence.’ Therefore, an acquittal in the former action serves to show only that the government did not prove beyond a reasonable doubt that the defendant committed the crime. This does not mean that the more lenient civil burden of preponderance of the evidence could not have been satisfied. Therefore, a party in a subsequent civil action should not be precluded from attempting to prove an issue by a preponderance of evidence merely because the government did not support the burden of proof beyond a reasonable doubt.”
In two New York cases involving successive civil prosecutions for (1) wrongful death and (2) a surviving action for injuries suffered before death, where the burden was on the defendant to prove contributory negligence in the first (wrongful death) and on the plaintiff in the second to prove freedom therefrom, it was held: “The burden of proof differing in the two actions, the first determination manifestly is not res judicata.”16 In a much later New York case there appears to have been a reversal of the burden of proof in the second case, but collateral estoppel was enforced without mention of the burden of proof.17
Our almost fruitless search for precedent on this particular point indicates that examples of cases in which the burden
Here we have a probated will (the Indiana will) the initial validity of which is conceded. The parties are in agreement that if the unprobated second will is valid, the probated (first) will is revoked, but if the second will is invalid the probated will remains decedent‘s last will. Thus the will actually being contested here in Indiana is the Florida will. Nevertheless the form of the action is a contest of the Indiana will. That comes about, however, only because the Indiana will was probated first. Had the Florida will been first probated, form and reality would have coincided; the contestors would be the same in form as in substance: The proponents of the Indiana will would be contesting the Florida will and the burden of proof would be on them in Indiana as it was in Florida.
The Florida judgment was still pending on appeal at the time the Trustees filed their appellee‘s brief in this court on February 18, 1972, but by the time appellant filed her reply brief she was able to include therein a copy of a per curiam affirmance (without opinion) by the District Court of Appeal of Florida, Second District. Prior to oral argument appellant filed with the clerk of the court a copy of a denial of certiorari by the Supreme Court of Florida.
There is no reason, so far as the Trustees are concerned, that the Florida judgment should not be deemed to have conclusively established that the Florida will was duly executed in conformity with Florida law. And on that issue, as distinguished from the issue of domicile, the Bank‘s position is no better than that of the Trustees. The Bank has standing to litigate the validity of the Florida will only because, as executor, it represents the interests of those who will benefit if the Florida will is held invalid. No one will benefit by an invalidation of the Florida will except those whose interests were represented by the Trustees in the Florida contest. Therefore, as to issues which relate only to the validity or invalidity of the Florida will Riley v. New York Trust Company (1942), 315 U.S. 343, 86 L. Ed. 885, 62 S. Ct. 608, has no application. In the language of Riley, the Bank (on all issues other than domicile) is the alter ego of the Trustees (and those whose interests the Trustees also represent).
That the Bank, as executor of the Indiana will, has no independent interest in defending the Indiana will is illustrated initially by the legal reason it was not a party to the Florida
On that point there is no reported Indiana case, but in Harris v. Harris (1878), 61 Ind. 117, 128, it was held that an administrator of a decedent‘s estate had no “cause of action either in his own right or in his representative character” to join with heirs to a decedent in a complaint to set aside a Kentucky will which had been admitted to record in Owen County, Indiana, as the true last will of decedent.24
The executor of a prior will would appear to occupy no different position (with respect to having or not having an interest of his own) nor does any statute purport to confer on him any right to become a plaintiff in any will contest as the representative of any other person‘s interest. It is only when the contest of a later inconsistent will takes the form it does here (i.e., the form but not the substance of a contest of the will of which he is executor) that an executor can ever exercise a right to contest the validity of another pretended will of his testator.25 And he has that right, or standing, as a necessary party only because the will contest statute ex
The principle that the executor has no independent interest as such in the will which appoints him has been written into Section 502 of the 1953 Probate Code,28 subsection (d) of which provides:
“(d) No attesting witness is interested unless the will gives to him some personal and beneficial interest. The fact that a person is named in the will as executor, trustee, or guardian, or as counsel for the estate, personal representative, trustee or guardian does not make him an interested person.” (Our emphasis.)
Negatively the executor‘s want of interest is indicated by his omission from the following definition:
“‘Interested persons’ means heirs, devisees, spouses, creditors or any others having a property right in or claim against the estate of a decedent being administered. This meaning may vary at different stages and different parts of a proceeding and must be determined according to the particular purpose and matter involved.”29
In an early Alabama case an unsuccessful attempt was made to disqualify legatees and devisees as witnesses in a will contest under a dead man‘s statute protecting the interest of the decedent‘s estate. The court noted that in a will contest
“the controversy is between living parties. The estate of the testator is not interested. The interests of those claiming to succeed to it, either by operation of law, or by operation of the instrument propounded as a will, are alone involved. The estate remains intact, undiminished, whatever may be the result of the controversy.” (Original emphasis.)31
The Bank nevertheless argues that in a will contest an executor represents interests other than those of living persons. It contends that it represents the testator and his interest in the execution of his will. However, the Indiana cases which speak of the executor‘s duty to carry out the testator‘s wishes do not hold that in performing such duty the executor is representing any legal interest of the testator.32 Nor can we understand how it would be possible for a person to retain a legal interest in the disposition of his worldly possessions after death has taken him from this world. The Court of Appeals of the District of Columbia in holding that an administrator had a representative right to appeal from the probate of a will he thought spurious, recognized that one‘s legal interests die with him by saying:
“It is true that the decedent, being dead, has no interests to protect; but the persons who will receive the property if intestacy is established have interests.”33
If the Trustees were private individuals to whom the testator had left a testamentary gift in his Indiana will, it would be correct to say that they had represented their own interests in the Florida contest. The precise fact is, however, that the Indiana will‘s residuary bequest was “to the James Whitcomb Riley Hospital for Children, Indianapolis, Indiana, for the general purposes thereof and to be paid to the agency of the State of Indiana or institution having control or supervision thereof.”34 Riley Hospital is an institution of the State of Indiana, a department of Indiana University, established under statutory authority by the university‘s board of trustees and under its control.35 By statute the university trustees are “empowered to receive, accept, hold and apply” such bequests.36
The only interest the State of Indiana had in defending the Indiana will against revocation by the Florida will was its interest in receiving the bequest to Riley Hospital. The Trustees represented that interest in Florida and also the
The fiduciary powers and duties imposed by statute on the Trustees of Indiana University (with respect to defending bequests to Riley Hospital) would appear to be no different from the powers and duties of the trustees of private testamentary trusts spoken of in Moll v. Goedeke (1942), 107 Ind. App. 446, 454, 25 N.E.2d 258, 261, in part as follows:
“Upon probate of the will, unquestionably the title is in the trustees, and the duty is imposed upon them to protect and preserve this interest for whomsoever shall be ultimately entitled to it. They are necessary parties to stand for and represent in the litigation the beneficiaries ultimately entitled to this fund, and such beneficiaries are bound by their representation.”
The Trustees of Indiana University were in lawful exercise of their trust powers and duties when they contested in Florida the validity of the Florida will. In so doing they represented the beneficiaries of the Riley Hospital bequest. “[S]uch beneficiaries are bound by their representation.”38 That principle is stated in A.L.I. RESTATEMENT OF THE LAW OF JUDGMENTS § 85(1)(a) thus:
“(1) Where a judgment is rendered in an action in which a party thereto properly acts on behalf of another, the other is
“(a) bound by and entitled to the benefits of the rules of res judicata with reference to such of his interests as at the time are controlled by the party to the action;”
The Restatement carries the principle a step further in subsection (2) of § 85, thus:
“(2) Where a person is bound by or entitled to the benefits of the rules of res judicata because of a judgment for or against him with reference to a particular subject matter, such rules apply in a subsequent action brought or defended by another on his account.”
As the Comment a, which follows, states, in part:
“This Section is based upon the principle that the person whose real interests are involved is bound by and entitled to the benefits of the rules of res judicata. It deals only with situations in which the interests of a beneficiary are involved where these interests are protected successively in two actions in one of which at least his interests are in charge of and are protected by another.”
That Comment also states:
“Comment:
a. Rationale. The rules stated in this Section are based upon the principles underlying § 80 and the Rationale stated in Comment b of that Section is applicable.”
Section 80, subsection (4) reads:
“(4) Where a judgment has been rendered for or against a person in an action in which he appears in a representative capacity or is otherwise acting for a particular beneficiary, the rules of res judicata apply in a subsequent action in which his successor is a party.”
Comment b following § 80 reads in part:
”b. Rationale. This Section is correlative to § 85 by the rules of which a person who is represented by another is bound with respect to the interests held for him by the other in a subsequent action in which either he is a party or some one representing him is a party.
“The rules of res judicata create substantive rights and are not merely procedural. They exist in order to limit a person to one opportunity to settle a dispute between himself and another. Where a representative brings or defends an action, the real dispute is between the beneficiary and the third person: the dispute is not between the representative personally and the third person.”
“A person who is not a party but who is in privity with the parties in an action terminating in a valid judgment is, to the extent stated in §§ 84-92, bound by and entitled to the benefits of the rules of res judicata.
“Comment:
“a. Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. The word ‘privy’ includes those who control an action although not parties to it (see § 84); those whose interests are represented by a party to the action (see §§ 85-88); successors in interest to those having derivative claims (§§ 89-92). There are other persons whose interests may or may not be less directly affected by a judgment because of their relation to one of the parties to the judgment; the effect of a judgment upon such persons is dealt with in Topic 3 (§§ 93-111).
“The statement that a person is bound by or has the benefit of a judgment as a privy is a short method of stating that under the circumstances and for the purpose of the case at hand he is bound by and entitled to the benefits of all or some of the rules of res judicata by way of merger, bar or collateral estoppel. To determine when and to what extent he is bound or has rights, it is necessary to consider his relation to the parties to the action or to the subject matter of the action.” (Our emphasis.)
In his concurring opinion in Bruszewski v. United States (3rd Cir. 1950), 181 F. 2d 419, 423, Judge Goodrich observed:
“Privity states no reason for including or excluding one from the estoppel of a judgment. It is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include that other within the res judicata.”
“Whether we use the idea expressed by Judge Goodrich that there must be sufficient proximity between the interests of the two persons to make it fair to estop one with a judgment for or against the other, or use the three-fold idea found in the Restatement [§ 83, comment a, supra] there can be no such privity between persons as to produce collateral estoppel unless the result can be defended on principles of fundamental fairness in the due-process sense. A trial in which one party contests his claim against another should be held to estop a third party only when it is realistic to say that the third party was fully protected in the first trial.”39
In most cases in which a stranger to prior litigation concerning title to property has personally acquired the interest of a party prior to the commencement of the prior action (and perhaps in other cases) it would be manifestly unfair to declare him bound by such judgment adverse to his prior acquired interest. It would not be realistic to say that he was fully protected in the first trial. In such a case the classical definition of privy as “one who, after the commencement of the action, has acquired an interest in the subject matter affected by the judgment”40 serves quite well to protect the stranger against denial of his constitutional right to his day in court. But when the stranger to the prior judgment is a party to the subsequent litigation only in a representative capacity, the concern is not whether the representative has had his day in court but whether the person represented has.41
Such a case is Rost v. Heyka (1931), 133 Kan. 292, 299 P. 969, in which “privity” is the word used to link the representative in the second action to the party whose interest was represented in both actions. In that case the heirs of a
“It is clear that the issues in the two actions were substantially identical, and the doctrine of res judicata should be applied, unless the fact that plaintiff was not named in his capacity as administrator in the first action prevents it. He was in that case as an heir, and fought it through to a final determination, in which it was held that there was no conspiracy, and that defendants did not owe the estate anything. The estate, it appears, was solvent, and it is not contended that there was not on hand sufficient money to pay any debts or expenses of the deceased. It appears, therefore, that the plaintiff is seeking to recover for his own benefit personal property alleged to have been converted and thereby enlarge his share of the land to be partitioned. The remainder of the estate belongs to the heirs, and, as we have seen, all the heirs were parties in the former action when the questions involved were litigated. In his capacity as administrator, he was a representative of the heirs to whom the estate was to be partitioned, and was in fact in privity with them, and the judgment against him in his capacity as heir is conclusive against him in his capacity as administrator. Donifelser v. Heyl, 7 Kan. App. 606, 52 P. 468, affirmed in 59 Kan. 779, 54 P. 1059.” (299 P. at 971.)
In the case at bar it violates no one‘s rights and denies no one his day in court to say that the relationship between the Trustees of Indiana University and the Bank as executor of the Indiana will is one of privity with respect to the question of which will is testator‘s valid last will. We, therefore, have no hesitancy in holding that as to all issues relevant only to that question, the Bank is estopped if the Trustees are estopped. And because the trial court found that the Florida court had “determined . . . that the manner of execution of the Florida will complied with [Florida] law,” both the
As to the other issues going to the validity of the Florida will, there has been no trial in the court below and no finding. It would be improper for us to assume that the evidence (whether of prior adjudication or otherwise) will be the same on those issues as it has been on the issues that were tried. We cannot, therefore, presume to direct in this opinion the findings which should be made if and when any of the remaining issues are tried.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views expressed herein.
Reversed and remanded.
Buchanan, P.J., and Sullivan, J., concur.
NOTE.—Reported at 299 N.E.2d 854.
ON PETITION FOR REHEARING
WHITE, J.—In their petition for rehearing the Trustees of Indiana University have charged that we have failed to give a statement in writing of a substantial question arising on the record and argued to the court. That substantial question is stated as follows:
“[W]hether the Indiana trial court was correct in concluding that since the testator was an Indiana domiciliary, the Florida decision was limited in effect to the jurisdictional basis of the Florida court, that is, property of the testator within the jurisdiction of the Florida court, and did not affect property of the testator within the jurisdiction of the Indiana court or have binding effect with respect to the issues before the Indiana court to determine the disposition of property subject to its jurisdiction.”
To paraphrase language we quoted in our opinion from Riley v. New York Trust Company (1942), 315 U.S. 343,
That distinction between the in rem and in personam effects of the Florida judgment is the cornerstone of our opinion. Our opinion gives the Florida judgment effect as to personalty beyond state of Florida (i.e., in the state of Indiana) only in personam, only as to parties to the Florida judgment and their privies. As to the issue of due execution of the Florida will under Florida law all the interested parties or their privies were parties both to the Florida judgment and to the Indiana will contest. Consequently the Florida judgment was binding on the parties to the Indiana contest as to that issue. But the Florida judgment was given no effect in Indiana on the issue of domicile because, as to that issue, the Indiana executor was an interested party but was not a party, or privy to a party, to the Florida judgment.
We believe we did “give a statement in writing of each substantial question arising on the record,”1 including the question Trustees assert we ignored. Virtually our entire opinion was an answer to that question.
The Trustees have advanced other contentions in their petition for rehearing which were fully discussed in our original opinion and merit no further mention here. The same is true of the petition for rehearing filed by the First National Bank of Warsaw.
Both petitions for rehearing are overruled.
Buchanan, P.J., and Sullivan, J., concur.
NOTE.--Reported at 301 N.E.2d 786.