*1 operate to does The statute made. is The owner twice. pay the owner make money due paying in not justified certainly must the statute reason lien.
create OF the ESTATE Matter
In the EDINGTON, Deceased. Edington, Jerry EDINGTON
Bill Ira E. Estate Co-Executors Plaintiff-Appellant, Edington,
v. EDINGTON,
Ernestine
Defendant-Appellee.
No. 1-785A193. Indiana, Appeals
Court District.
First 27, 1986.
Feb.
18, 1984. The co-executors of the dece- (Estate) petitioned dent's estate the court 4, 1984, May on to disallow the election and alleging allowance Ernestine had waived statutory rights her in the decedent's es- alleged antenuptial tate in an contract. Af- hearing, 18, 1985, ter February on trial court ruled that Ernestine had nоt statutory rights her waived but had indeed against made a valid election decedent's will.
STATEMENT
THE
OF
FACTS
Ernestine and the decedent were married
1974,
12,
January
spouse
on
and each
during
respective
children
prior
their
mar-
riages.
brought
per-
Each
real and
property
marriage,
sonal
into the
they
and
kept ownership
properties separate
of their
during
While each
spent
money
during
some
on each other
marriage, they both took care of their own
personal expenses.
years
Over two
and
marriagе,
ten months
after
with a
between,
temporary separation in
Ernes-
tine and the decedent executed wills in the
presence of
their attorney
each
and
11,
on
1976.
In
November
his will
eight
decedent left all his estate to his
prior marriage
children from his
with no
provision
Upon seeing
for Ernestine.
her
provision
husband's
Ernestine made
leaving all her estate to her three children
prior marriage
provision
from her
no
with
for the decedent. Ernestine testified that
it was her intent
to leave the decedent
nothing
nothing
as his
left
to hеr. The
will
attorney who drafted the wills testified
Thomas,
Thomas,
Larry C.
Thomas &
although
normally
people
he
advised
Clinton,
plaintiff-appellant.
for
legal
making
ramifications when
type,
wills of this
he could not remember
Duffy, Duffy Duffy,
Patrick L.
Terre
&
Likewise,
whether he did so in this case.
Haute,
defendant-appellee.
for
Ernestine testified that she did not remem-
discussing
attorney anything
ber
with
NEAL, Judge.
about a widow's allowance or a
against
spouse's
THE
elect to take
will.
STATEMENT OF
CASE
defendant-appellee,
Eding-
The
knowledge
Ernestine
Without
(Ernestine), surviving spousе
subsequent
ton
decedent executed a
will on
deceased,
Edington,
filed an election to
1981,
September 15,
specifically revoking
against
take
prior
the will of the decedent and
all
This
was identical to
wills.
will
surviving spouse
April
for her
allowance on
11, 1976,
еxcept
his will dated November
that she waive
nestine
the decedent
and
son, Jack,
chang-
disinheriting his
for
rights.
ap
As
statutory
the Estate
Ernestine
ing one of the co-executors.
negative judgment, we view
peals from a
the will of
filed her election to
most favorаble to the trial
the evidence
September
court,
only if it leads
we will reverse
testimony regarding the
dispute
In
contrary
uncontrovertibly to a conclusion
antenuptial agreement
presence
*3
one reached below. Bohnke v. Es
to the
decеdent to the
Ernestine and the
(1983), Ind.App., 454
tate of
separate property of each
that the
effect
Here,
only
trans. denied.
not
respective chil-
pass
to
to their
by
controverted
the testimo
is the evidence
prior marriages. Ernestine
dren frоm their
ny
Ernestine who denied the existence
of
nor
that she neither talked about
testified
agreement,
alleged antenuptial
but
of an
understanding with the decedent
had an
testimony to be
trial court found her
the
during marriage
prop-
or
as to how
before
prеsence
To find the
the most credible.
as
go if either died other than
erty should
contract,
antenuptial
under consid
chil-
provided in their wills. The decedent's
itself,
marriage
not solemnized
eration
Jack,
dren, Jerry,
Audrey, Paul and Wil-
years
months after mar
until two
and ten
they
testified to the effect that
liam each
reweigh
riage,
ask us to
the evi
would
by
told
Ernestine or
had heard or had been
credibility
the
of the
dence and reassess
prior
agreement
about a
oral
the decedent
Boknke,
we cannot do.1
witnesses which
рroperty. The trial
for the distribution of
supra.
testimony to be
Ernestine's
court found
credible,
highly
but as to the decedent's
further
the
The evidence
shows
children,
very
credibility,
Audrey had
little
ambiguous
of Ernes
nature of the intent
Jerry
credibility, Paul was even
had less
and the decedеnt as to the existence
tine
credible,
giv-
testimony was
less
and Jack's
alleged agreement or an intent to be
an
weight
credibility. The
virtually no
or
en
thereby. The
most favor
bound
evidence
found it clear that the decedent's
trial court
judgment of the trial court
аble to the
great animosity toward
children harbored
any agreement
never
or
shows there
great
impact
in
as-
agree
Ernestine which
alleged
evidencing
"mutual wills"
an
sessing
weight
given
to be
their testi- ment,
the
decedent,
but that Ernestine and the
mony.
after
their mar
years and ten months
two
attorney, and
riage, went to an
ISSUE
nothing
left
in his
upon seeing the decedent
issue in this case is
The determinative
her,
leaving
will
will for
executed
similar
of a
a valid waiver
whether there was
nothing
decedent. Neither will re
to the
other,
right
agreement
to
surviving spouse's allowance and
to an
fers to each
against the will of the decedent.
dispositions,
"mutual"
to a
the wills make
underlying
incorporated
or
into
contract
DECISION
DISCUSSION AND
wills,
to
or to a contract not
revoke
the consent of each other.
Ernеstine wills without
argues
The Estate
merely execute wills at
people
un
two
to her elective share
Where
waived
knowledge of similar or
the same time with
antenuptial agreement. The
der an
will, it
antenuptial
reciprocal provisions in each оthers
oral
Estate
constructs
an
necessarily
agree
testimony
amount to an
through
of the
does
agreement
legal
it maintains was
deceased's children which
ment
for mutual wills or create
wills,
obligation not to revoke them.
C.J.S.
writing, by the executed
manifest in
conduct,
through
by
separate
1867(a) (1957). Further,
own Wills Sec.
if such
alleged "mutual
were
or
wills"
properties,
all
ership
maintenance of
part of Er
fortify an intent on the
exist,
parties were still
which
to
and when both
waiver,
express
opinion
we
no
of whether
a valid
we nеed not decide the issue
Since
validity.
recognize
operate
antenuptial agreements
would
can ever
oral
alive,
be a sufficient consideration in the case
party
either
could recede from the
will and revoke it or
make a different
of an
dis
made before
position
property upon
In all
giving proper
other cases such
agree-
contract
party
notice to the other
ment or waiver
binding
to afford the
shall be
upon
party
if
opportunity
an
to
thereto
make а new will
executed after
or
a full
disclosure
prevent
change
a detrimental
nature and
position
extent of
right,
and if
thing
or
prior agreement.
promise
reliance of the
Id. at
given
party
to such
is a
fair considera-
1867(e).
bar,
See.
In the case at
the dece
tion under all the
Except
circumstances.
dent without notice to or
knowledge
provided therein,
as otherwise
such waiv-
Ernestine, changed his will specifically re
er executed
decedent's
voking
prior
all
wills which leads to the
shall be deemеd a waiver of the right to
inference that he never believed that he
elect
the decedent's will
by any prior agreement
was bound
or al
contract,
and the written
agreement, or
leged
mutual will scheme. A mutual
be filed in the same manner
*4
will,
any
like
other
is
by
revoked
the execu
provided
as is
in this
filing
article for the
subsequent
tion of a
will inconsistent there
of an election."
with, subject
to an underlying contract
Bohnke,
supra.
which
not
See
bar,
has
been
In the case at
by
established here
there was no evidence thаt Ernestine was
sufficient credible evidence and the surviv
given "full disclosure of the nature and
ing spouse may exercise her statutory
right
extent" of her
to elect or the effect of
rights
elective
under the testator's last will.
thereof,
a waiver
under
the
oral
(1941),
Deveney
See Manrow v.
109 Ind.
agreement,
any
nor is there
such evidence
App. 264,
marriage, in fraud, the absence of shall 29-1-2-18 and IND.CODE 29-1-8-6 is re- further probate Our code agreement invokes the trans. denied. quired when or the intestate share surviving spouse's requires a waiver of of a allowance waiver spouse any or other expectancy against to elect to take the will of writing. 29-1-2- in IND.CODE heir to be Bohnke, In the trial supra, the decedent. antenuptial agree alleged oral antenuptial agreement 13. The found an oral court purpose. this not be valid for surviving ment could the decedent and the Thus, having signed any never keep Bohnke. spouse whereby each was to election, right of or waiver of her written separate property and neither their own any written having entered into against the other's to make a claim right, pre- waiving such Ernestine did death, Following the decedent's estate. electing from clude herself surviving asked the the Estate the will. rights to sign a waiver of will and surviv- against the decedent's deci- I that the trial court's also concur argued that because оr's allowance and antenuptial no oral sion that there was signed pursuant to the ante- upheld, but it makes should be waiver was nuptial agreement, the written agreement, because the oral no difference in both the The court found that valid. one, therе been could not constitute in the antenuptial agreement and writ oral right to elec- valid waiver of Ernestine's waiver, legislative directive ten tion. surviving spouses not allowed to waive be rights full disclosure was fa without tally absent. bar, only the Estate not
In the case at *5 to the present credible evidence as
fails to antеnuptial agreement, of an oral existence such was no evidence that there RIGGIN, Plaintiff-Appellant, Richard E. the result of full disclosure v. and extent of Ernestine as to the nature BALL TRUSTEES OF BOARD OF waiving. can rights she be Nor any UNIVERSITY, Robert P. and STATE original from the wills or we infer Bell, As President of Ball State Univer- that such full disclo- conduct of Defendants-Appellees, sity, given the wills were exe- when sure and judgment of the Accordingly, the cuted. matter of law. court was correct as a trial RIGGIN, Appellant, Richard Judgment affirmed. v. BALL TRUSTEES OF BOARD OF
ROBERTSON, J., concurs. UNIVERSITY, Dr. R. Thomas STATE RATLIFF, J., opinion. cоncurs with Mertens, Wright, Dr. Dr. Thomas Paul Parkison, Gray, R. Dr. Marvin W. RATLIFF, Judge, concurring. Strouse, as members of the Dr. John P. antenup- if there had been Even University Hearing Committee Edington and tial Committee; and Robert Judicial Senate found not the trial court Bell, President of Ball State Uni- P. case, opеrate could not as a such to be versity, Appellees. of Ernestine's to elect to take No. 1-1084A240. clearly The statute re against the will. writing quires waivers to be Indiana, Appeals Court party waiving right. signed by the District. First clearly This court 29-1-8-6. IND.CODE 3, March agreement with held that a wife's oral has of her was not a valid waiver her husband v. Estate rights in his estate. Bohnke (1983), Ind.App., 454