*1 requirement in the statutes fail to see entry order court make an LEE,
that the trial Plaintiff-Appellant, determined to ex- reading "probable cause v. Adamovich is correct that While ist". SCHROEDER, Linda L. as Co-Executrix before issu- probable must find cause court Raymond Schwag of the Estate of C. warrant, find for the ing we no meier, deceased; Parker, Gaberella finding explicity must be position that the of the Estate of Here, Co-Executrix in the court's order book. set forth deceased; Schwagmeier, Linda L. C. entry July con- the order book Schroeder, Schroeder, Richard P. Rob following entry: tains the Weber, Schwagmeier, ert Ruth "Charging probable information and Shaddy, Defendants-Appellees. Richard filed. Warrant issued cause affidavit _________. amount of and Bond set No. 24A01-8803-CV-94. guilty hearing held. Plea of not Initial Indiana, Appeals Court of entered ..." First District. decision of Record at 26. We accord the judge presumption regularity. the trial Oct. 1988. (1986),Ind., Hammons State Rehearing Denied Dec. presume that based we probable cause affidavit and information, con- charging the trial court probable cause existed to arrest
cluded that the war-
Adamovich and therefore issued already
rant. We have discussed the valid- affidavit,
ity facts stated and the clearly support
therein the trial court's
finding probable see no error cause. We omission from the order book of probable
"magic signifying words"
cause was determined to exist.
Finally, Adamovich claims that the trial overruling erred in his Motion to
court challenged
Dismiss II which the court's
jurisdiction to hear the case because provided by
not been instituted a manner
law. Adamovich this claim on the bases
alleged and in- deficiencies the affidavit
formation. Because we find that the affi- valid, also
davit and information were properly
find that the trial court exercised Furthermore,
jurisdiction over the case. alleged solely
because the errors concerned form,
matters of error was cured in the trial verdict. We see no error disposition
court's of Adamovich's motions
to dismiss.
AFFIRMED. MILLER,JJ.,
ROBERTSONand
concur. *2 Kehoe, Bailey,
L. Mark Wilson h& India- napolis, plaintiff-appellant. Kemper, Gary Kemper, K. Jenner & Ma- dison, defendants-appellees. NEAL, Judge.
STATEMENT OF THE CASE (Louise), Plaintiff-appellant, Louise Lee appeals summary judgment ren- an adverse dered the Franklin Circuit Court in her suit contest the will C. deceased, (the decedent). Schwagmeier, defendant-appellees The in the case are (Linda) Linda L. Schroeder and Gaberella (Gaberella) co-executors, Parker Schroeder, Schroeder, Linda L. Richard P. Weber, Schwagmeier, Ruth Robert Shoddy, individually. Richard affirm. We THE STATEMENT OF RECORD evidentiary material before the court April is as The decedent died on follows. wife, children, or lineal without a surviving descendants him. He left as his Weber, heirs at law Louise and Ruth sis- ters, Richard and Robert nephews. purport- An Shoddy, instrument ing to be his last will and testament and 31, 1986, bearing the date of 11, 1986, probate April after admitted naming testamentary Linda which letters spoken is- she and Gaberella co-executrices were had with the decedent on Janu- terms, will, By directing its ary appeared sued. 81 at time he to be in a paid, left all of the very physical that all debts be dece- condition, weak and mental Thereafter, property dent's to Linda. wife, cried over the loss and ex- Louise commenced her action to contest the pressed fear about death and loneliness. July following will on He husband, stated that Linda her (a) mind; (b) grounds: unsoundness un- Richard, promised to terminate their *3 influence; (c) duress; (d) due fraud in ob- employment in Florida and move execution; (e) taining the and execution of Ripley County farm in and through the will obtained was undue influ- begin farming. He told Louise that based ence. promises those and in buy order to peace of mind and avoid a confrontation
The co-executrices Richard Schroe- Linda, family gave between the he summary judg- der filed their motion for Linda and exchange Richard the farm in supported by interrogato- ment answers promise care, for their compa- of constant ries, hospital personnel, the affidavits of death,. ny, and companionship until his At Alcorn, Kathy Scroggins, Patricia Shiela no time did he mention he had executed a Adams, Kooistra, and Susan the affidavit January will on Hare, treating of Dr. FW. the decedent's physician, and the affidavits of Linda and 10, 1986, Louise continued that on March supporting All Gaberella. of the evidentia- gone Florida, leaving Linda had the de- material, here, ry as relevant stated that at cedent unattended his home he where period surrounding the execution of the injured. fell and was The decedent was alert, oriented, lucid, will the decedent was hospital admitted to a where he subse- totally capable understanding, of sound quently April died opin- on 1986. In her good judgment. and had The affida- ion the execution of the will was accom- vits of Linda and Gaberella added that he plished upon the exertion of undue influ- knew and understood the nature of his ence over the decedent Linda and Rich- property, objects bounty, natural of his ard. Louise asserted further had act, the consequences of his and was not been the decedent's wish that she be his influence, duress, coercion, under undue or promised administratrix and he fraud when he executed his will. The an- money that additional sums of would be interrogatories swers to reflected Lin- coming to her on his death. Louise also da was not related to the but had represented stated that Linda to others been a friend since 1945. She had taken daughter. that she was the decedent's prior care of him to his death for a short spoke only The minister's affidavit time and stated that the decedent had no health, poor decedent's of Linda's domi- mental infirmaties. The will had been exe- possessive attitude, neering and and of the in lawyer's cuted a office but she had not fact that the decedent and his wife had present. been been reclusive and isolated. In his affida- opposition to the motion for vit, Dr. Davis stated that he had examined judgment, Louise filed a counteraffidavit hospital records which showed that the de- own, of her the affidavit of Dr. James R. hospital cedent was admitted to the on Jan- (Dr. Davis), Davis and an psychiatrist, 11, 1986, uary myocardial for acute infarc- minister, affidavit affidavit, reciting tion. The various
Louise's affidavit stated
hospital
that the dece- entries from the
records addressed
dent
patient
had been a
hospital
condition,
physical
from to the decedent's
stated
January
that the records showed that the decedent
to January
af-
ter he
had suffered
a heart
His
attack.
13, 15, 20, 21,
January
was confused on
wife
years
of over
Nevertheless,
died
January
on
27 22.
the decedent was dis-
and was buried on January
charged
January
hospital
after which
25. The
hospital
records were not certified
his will
was
January
executed on
There
prior
was no
will.
personnel,
they
Louise stated that
nor were
attached to the
claim,
his affidavit
sum
Dr. Davis concluded
some elements
affidavit.
ferences on
proper
there
mary judgment
following opinion:
dispute regarding facts which
no
opinion, based
professional
my
It is
Mogan
the matter.
v. South
dispositive of
age,
Schwagmeier's
his
Trust Co.
ern Indiana Bank and
degener-
condition, including the
physical
Ind.App.,
353
(1983),
Indianapolis
against
Ind.
v. Cutshaw
suits
heirs or devisees
856,
summary
A
App., 448 N.E.2d
founded on a contract with or demand
judgment proceeding
and should
trial,.
cannot
against
the ancestor.
IC
34-1-
be used as an abbreviated
Cut-
not
places
14-9
the same disability
shaw, supra.
judge may
The trial
spouse
party.
of a
weigh
proceeding.
the evidence in such a
It is well established that these stat
reviewing
propriety
summary
apply
utes
to will
Emry
contests.
v.
alleged
judgment,
party
the facts
(1922),
55;
Beaver
192 Ind.
137 N.E.
the Motion
opposing
must be taken as
(1921),
Long v. Neal
191 Ind.
(1980),
Lyon
Ind.App.,
true. Boswell v.
252;
(1880),
N.E.
Wiseman v. Wiseman
farming
along
of decedent's land
with his and Jenkins
v. Nachand
own;
(1972),
shortly
on occasion
Ind.App.
before dece-
the record facts, on the of the material basis it, potential domi- aware that a upon we are may testify in the record. He the facts respect to the no effect occur supported by of facts the basis assumed those transfers bank accounts as farm and by way A him is set aside. or stated to suspect if the will evidence would be question. hypothetical Ditton v. Hart could personal representative be different 961; (1910), 175 Ind. 93 N.E. Senco titles could be chal- appointed and those (1982), Products, Ind.App., Riley Inc. v. perceive that Louise lenged. do not We 561; Newburgh v. 434 N.E.2d Town if will contest action filed the would have of 58 N.E.2d Jones to her. could accrue no benefit argues her state- Louise further departure appears There to be some to show unsound- ments can be received rule, from the above however. Duncan that her affida- ness of mind. We observe (1980), Ind. George Moser Leather Co. does not address unsoundness vit App., set forth influence. 408 N.E.2d this court but undue three-prong test determine the admissi ISSUE II: Froud bility expert opinion when it is based in argues Under this issue report is either not in exist part on a promises fraud if the it would amount to or inadmissible as substantive evi ence kept. in her affidavit recited were hearsay rule. In order for dence due to the to the statements made Louise refers following opinion to be admissible money receive the decedent that she would (1) expert must met: must standards that Linda and be the administratrix and expertise sufficient to evaluate the have exchange promised him that for the (2) reliability report; report must throughout farm she care for him would reliable; type normally found be of a prac his life. Louise contends fraud thus (8) type customarily report must be of a opera ticed takes her affidavit out of the practice relied tion of the rule under 84-1-14- IND.CODE profession. at 1348. Id. disagree. in Issue I 6. We The cases cited recognized departure This court also exception, *6 only make one unsoundness of in from the rule Rosenbalm v. Winski mind. Her received. affidavit not be posits That case that al denied. trans. Expert ISSUE III: Medical attacked, opinion may though the still be finally argues Louise that Dr. accept probative to jury is asked Davis's affidavit should be considered to expert's conclusion based on evidence summary judgment. defeat the Trial Rule hearsay of the fact assertion someone's 56(E) requires that affidavits be made on finding jury has when the no basis personal knowledge of the affiant and many true. The case recited that fact to be in set forth facts as would be admissible expert opinions are based in admissible requires -Itfurther that the affi evidence. hearsay. The part upon matters which are affirmatively the affiant is davit show stopping applied has been distance rule competent testify stat as to the matters tables, performed under the control tests copies of ed therein. Sworn or certified all expert, and the sale and direction of the therein, papers, parts thereof referred to experts. price of other real estate known to shall be attached. Admissibility rejected has been where base, non-treating physician Clearly, opinion of a the factual the medical medical records, part in or in the sub which Dr. Davis rendered his is based whole hearsay patient.1 opinion hearsay. jective There is statements was profession developed been in a as a which have appears I to this writer that where applicable testimony types to all situations is whole which are concerned two facts expertise required. This would include involved. The first of facts concerns matters set only, unduly in fact Dr. opinion we was influenced. Davis's purposes of this For the opinion does not address that issue. The Dr. Davis could accept the rule that non-movants failed in their burden to dem- on medical opinion based render an genuine issue and onstrate However, hold not in evidence. records granted. judgment appropriately was to create a is insufficient that his affidavit His conclusion genuine of fact. issue SHIELDS, Presiding Judge, concurring was that the decedent
was not, result. He did and of course undue influence. not, say influence was that undue could I concur on Issues I and II. result say at the time
practiced. He did not agree majority IWhile with the decision the decedent of the will of the execution inadmissible, that Louise Lee's affidavit capacity, was under undue lacked mental majority's authority properly cited case duress, coercion, influence, or that fraud mandates exclusion of affidavit under practiced on him. (West 1983) IC 34-1-14-7 rather than IC reasons, this cause is af- For the above (West 1988) 84-1-14-6 and for that reason I I concur result on Issues and II. On firmed. III, Judge Issue I concur in both Neal and AFFIRMED. JUDGMENT Judge opinions. Chief Ratliff's RATLIFF, C.J., opinion. concurs with
SHIELDS, P.J., concurs result opinion.
RATLIFF, Judge, concurring. Chief expert may opinion
An base his on hear-
say or otherwise inadmissible evidence. However, may testify only he to the Darcy Sherman Richard McEWEN and opinion derived from such evidence and (Plaintiffs McEwen, Appellants placing conduit Below), hearsay or inadmissible evidence into the portions record. those of Dr. Davis's Mary Mary McEWEN n/k/a which re-stated matters re- affidavit Appellee Ziegelmaier, ported in the medical records were inadmis- (Defendant Below). ruling sible and could not be considered in summary judgment. the motion for No. 37A03-8712-CV-00335. However, opinion the doctor's was admissi- Indiana, Appeals of Court of ble, and, if relevant to the issues could District. Third problem is have been considered. The opinion the doctor's was no at all *7 Oct. upon any merely opin- He issue. stated an ion that the testator was persons suscepti- influence. All
undue question
ble. The whether decedent In this tables, tables, other matters which have occurred. mortality stopping distance sale prices, phenonomena, permit- medical and scientific in- not be second situation an should cluding experiments, the results of stock market a vehicle for unsworn statements ted to become performances, practices, engineering prac- trade sources, gossip, conjecture, or from unidentified tices, quality goods and the like. In evaluat- brought evidence should be into surmise. Such ing subject expert brings play into all Generally, traditional form. record in the knowledge subject on a from source whatever practice. custom in the Here Dr. such is the acquired. opera- The second set of facts are the hearsay whole was based Davis's They tive facts of the case under consideration. observations records which contain medical records, distances, would include medical unknown, by persons confusion made about marks, speed, length damages, of skid mental hospital personnel. presumably duress, influence, capacity, acts of acts undue 520N.E.2d-10