Estate of Nye v. First National Bank

Full title: IN THE MATTER OF THE ESTATE OF WILLIAM NYE, DECEASED, BONITA LOUISE GROVE…

Court: Court of Appeals of Indiana

Date published: Oct 9, 1973

157 Ind. App. 236 (Ind. Ct. App. 1973)

157 Ind. App. 236

299 N.E.2d 854

Opinion

301 N.E.2d 786 (Ind.App. 2 Dist. 1973) 157 Ind.App. 236 In the Matter of the ESTATE of William NYE, Deceased. Bonita Louise Grove WEBSTER, Plaintiff-Appellant, v. FIRST NATIONAL BANK OF WARSAW, Warsaw, Indiana, et al., Defendants-Appellees. No. 1271A259. Court of Appeals of Indiana, Second District. October 9, 1973

        Lewis E. Jones, Anderson, for plaintiff-appellant.

       Byron C. Kennedy and Herbert H. Bent, Rockhill, Kennedy, Pinnick, Sand s&sBent, Warsaw, Byron P. Hollett, Virgil L. Beeler, Jerry D. Harner, Indianapolis, for defendants-appellees; Bakers&s Daniels, Indianapolis, of counsel.

ON PETITION FOR REHEARING

       WHITE, Judge.

       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, Ind.App., 299 N.E.2d 854, from Riley v. New York Trust Company (1942), 315 U.S. 343, 353, 62 S.Ct. 608, 614, 86 L.Ed. 885, 893, 'So far as the assets in . . . (Florida) are concerned the . . . (Florida) 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.'

       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.

1 Appellate Rule 11(B)(2)(e).

       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.