                                                                            FILED
                                                                      Jul 15 2019, 7:18 am

                                                                            CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEES
W. Edward Skees                                             Michael M. Maschmeyer
THE SKEES LAW OFFICE                                        Jeffersonville, Indiana
New Albany, Indiana                                         John D. Cox
                                                            LYNCH, COX, GILMAN &
                                                            GOODMAN, P.S.C.
                                                            Louisville, Kentucky



                                             IN THE
     COURT OF APPEALS OF INDIANA

Christal Trowbridge,                                        July 15, 2019
Appellant,                                                  Court of Appeals Case No.
                                                            19A-ES-265
        v.                                                  Appeal from the Clark Circuit
                                                            Court
The Estate of Everett Thomas                                The Honorable Andrew Adams,
Trowbridge, and                                             Judge
Michael T. Trowbridge,                                      The Honorable Kenneth R. Abbott,
Appellees.                                                  Magistrate
                                                            Trial Court Cause No.
                                                            10C01-1807-ES-32



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019                              Page 1 of 9
                                            Case Summary
[1]   Christal Trowbridge (“Trowbridge”), the ex-wife of Everett Thomas

      Trowbridge (“the Decedent”), offered for probate his purported last will and

      testament. The Estate objected, and the probate court issued an order denying

      probate of the will and declaring that the Decedent had died intestate.

      Trowbridge presents a consolidated and restated issue which we find to be

      dispositive: whether the judgment is contrary to law due to the misplacement of

      the burden of proof. We reverse and remand.



                             Facts and Procedural History
[2]   The Decedent died on June 6, 2018, survived by his father and his brother,

      Michael Trowbridge (“Michael”). On July 13, 2018, Michael filed a Petition

      for Issuance of Letters of Administration, asserting that the Decedent had died

      intestate.


[3]   On November 13, 2018, Trowbridge filed her Petition for Probate of Will and

      Appointment of Co-Personal Representative. She asserted that the Decedent

      had died testate pursuant to a will executed on April 30, 2012, shortly after the

      couple had divorced. The proffered will provided that Michael and Trowbridge

      were to be co-executors of the Decedent’s estate. The will terms decreed that a

      Chase Bank retirement plan was to be divided 75% to Michael and 25% to

      Trowbridge. The remainder of the property – consisting of a residence,




      Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019          Page 2 of 9
      personal property, motor vehicle, and an Edward Jones retirement plan – was

      bequeathed to Trowbridge.


[4]   The proffered will was a form will with handwritten entries filling the blanks; it

      was signed, witnessed, and notarized. In one margin, there appeared a

      handwritten designation of a combination to a safe. On November 14, 2018,

      the personal representative of the Estate filed an Objection to Probate of Will.


[5]   On January 9, 2019, the probate court conducted a hearing at which three

      witnesses testified: Trowbridge, Michael, and the attorney for the Estate,

      Michael Maschmeyer (“Maschmeyer”). Trowbridge testified that she had

      proffered an original will executed by the Decedent. She further testified that

      she and the Decedent had last had contact shortly after the divorce, yet he had

      never removed her as the beneficiary of certain investment funds.


[6]   Without objection, the Estate’s attorney testified in narrative form regarding his

      professional consultation with Trowbridge. He testified that Trowbridge had,

      after learning he was the Estate’s attorney, brought into his office “a signed

      copy or duplicate of the original will” and she had “said, in essence, that it was

      a signed copy and the original was to be in the safe.” (Tr. at 15.) In rebuttal,

      Trowbridge denied making a statement that the original will would be found in

      the Decedent’s safe. Michael testified that he opened the Decedent’s safe and

      found no will inside.


[7]   In closing argument, Maschmeyer asked that the probate court credit his

      testimony and find that the proffered will was a copy, such that the absence of

      Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019          Page 3 of 9
       an original would give rise to a presumption that the original had been

       destroyed. In turn, Trowbridge’s attorney asked that the probate court find the

       proffered document to be the original will. The probate court expressed its

       inability to discern the originality of the proffered document and noted the

       absence of expert testimony.


[8]    On January 10, 2019, the probate court issued an order providing: “The

       Petition for Probate of Will and Appointment of Co-Personal Representative is

       denied, and the Objection to Probate of Will is granted.” Appealed Order at 3.

       Trowbridge now appeals.



                                   Discussion and Decision
[9]    Trowbridge claims that the probate court erred as a matter of law. Allegedly,

       the probate court (1) disregarded Indiana Code Section 29-1-7-20 by placing the

       ultimate burden of proving will authenticity upon its proponent as opposed to

       its contestor and (2) applied a presumption that the testator had destroyed his

       will with intent to revoke, absent a predicate finding that the testator had

       retained possession or control of the will.


[10]   When a probate court enters findings of fact and conclusions of law, we apply a

       two-tiered standard of review. In re Eiteljorg, 951 N.E.2d 565, 569 (Ind. Ct.

       App. 2011), trans. denied. We first consider whether the evidence supports the

       findings and second, whether the findings support the judgment. Id.

       Considering only the evidence favorable to the judgment, we do not reweigh


       Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019           Page 4 of 9
       the evidence and we do not assess witness credibility. Id. We will set aside the

       findings and conclusions only if they are clearly erroneous; that is, if the record

       lacks facts or inferences supporting them. Id. However, we apply a de novo

       standard of review to conclusions of law. Id.


[11]   Indiana Code Section 29-1-7-20 governs the burden of proof in a will contest,

       and states: “the burden of proof is upon the contestor.” The contestor, while

       retaining the ultimate burden of proof, may have the benefit of a presumption in

       certain circumstances.


               In Indiana, the general rule is that where a testator retains
               possession or control of a will and the will is not found at the
               testator’s death, a presumption arises that the will was destroyed
               with the intent to revoke it. Matter of Estate of Borom, 562 N.E.2d
               772, 775 (Ind. Ct. App. 1990). The proponent of the will may
               rebut that presumption by introducing evidence which tends to
               support a contrary conclusion such that destruction with the
               intent to revoke is disproven by a preponderance of the evidence.
               Id. When a copy of the will is offered for probate, and probate of
               the copy is contested, the burden of proof remains on the
               contesting party through the proceeding to establish that the will
               was in fact revoked. Ind. Code § 29-1-7-20. However, the
               contestor is aided by the presumption of destruction with the
               intent to revoke. Matter of Estate of Borom, 562 N.E.2d at 776.
               That presumption shifts the burden of going forward to the
               proponent of the will to present evidence to rebut the
               presumption. Id. Of course, the contestor still retains the
               ultimate burden of proof. Id.


       Estate of Fowler v. Perry, 681 N.E.2d 739, 741 (Ind. Ct. App. 1997).




       Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019              Page 5 of 9
[12]   In the order on appeal, the probate court recited the procedural history,

       reviewed the holding in Estate of Fowler, and provided the following reasoning

       for its decision:


               10. Neither party has contested the fact that the Decedent had
               possession or control of the Will after its execution. Such
               possession or control is supported by the inscription of the
               combination of his safe on the second page of the Will;


               11. Trowbridge and other family members knew that the
               Decedent had a safe where he kept cash and important personal
               papers. In fact, several important documents were found in the
               safe after his death. However, no Will was found;


               12. Trowbridge asserted at trial that she had the original Will;


               13. Maschmeyer asserted at trial that Trowbridge told him that
               the original of the Will was in the Decedent’s safe, leading to the
               assumption that the Will in her possession was a copy;


               14. The Will proffered to the Court as the original had no
               distinguishing marks that would allow the Court to determine
               that it was an original or a copy;


               15. Trowbridge did not proffer any expert evidence to shed light
               on whether the Will was an original or a copy;


               16. Trowbridge proffered testimony that she had received money
               from mutual funds of the Decedent as the beneficiary of the
               mutual funds. This condition of facts has little if any relevance as
               to the possible revocation of the original Will;



       Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019              Page 6 of 9
               17. The Court cannot determine by a preponderance of the
               evidence, either from the conflicting testimony of Trowbridge
               and Maschmeyer, or from the condition of the Will, whether the
               Will in the possession of Trowbridge was the original;


               18. Trowbridge has not overcome the presumption that the
               original Will was intentionally revoked by the Decedent[.]


       Appealed Order at 2-3.


[13]   The language of the first sentence of Paragraph 10, referencing a purported

       agreement that the Decedent had retained possession of his will, is facially

       inconsistent with the language of Paragraph 12, recognizing that Trowbridge

       claimed at trial to have the original. And the parties in fact contested whether

       the Decedent had kept his will in his safe or instead tendered the original

       document to Trowbridge. It was central to their controversy. The presumption

       of destruction with intent to revoke would be operable only if (1) the testator

       retained possession or control of a will and (2) the will was not found at his

       death. Estate of Fowler, 681 N.E.2d at 741. The probate court found the

       inscription of the safe combination on the proffered will to be “support” for the

       Decedent having possession or control, but the court did not make a factual

       finding that he had done so.


[14]   In other language, the probate court summarized Maschmeyer’s testimony that

       he had been told the original was to be found in the Decedent’s safe, but the

       probate court did not adopt the testimony. “A court or an administrative

       agency does not find something to be a fact by merely reciting that a witness


       Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019          Page 7 of 9
       testified to X, Y, or Z. Rather, the trier of fact must find that what the witness

       testified to is the fact.” In re Adoption of T.J.F., 798 N.E.2d 867, 874 (Ind. Ct.

       App. 2003) (citation omitted). Such findings are treated as mere surplusage.

       Pitcavage v. Pitcavage, 11 N.E.3d 547, 553 (Ind. Ct. App. 2014).


[15]   Thus, without factually determining whether the proffered will was an original

       or a copy, the probate court treated it as a copy. Even so,


               [w]hen a copy of that [missing] will is offered for probate, and
               probate of the copy is contested, the burden of proof remains on
               the contesting party throughout the proceeding to establish that
               the will was in fact revoked.


       Estate of Borom, 562 N.E.2d 772, 775-76 (Ind. Ct. App. 1990). The outcome

       here was driven by applying a presumption that a will in the testator’s

       possession later found missing was missing because the testator destroyed it

       with intent to revoke. But there must be a predicate finding of possession for

       something to be missing from one’s possession. Notwithstanding deficiency in

       this regard, the probate court afforded the Estate the presumption that the

       original was destroyed with intent to revoke. Had the presumption been

       supported by the evidence, it would have shifted to Trowbridge the burden of

       going forward with evidence to rebut the presumption. See id. at 776. The

       probate court summarily concluded that Trowbridge failed to rebut the

       presumption with admissible and relevant evidence. By statute, the Estate, as

       contestor of the proffered will, bore the ultimate burden of proof. Moreover,

       the Estate was not entitled to a presumption in its favor without predicate


       Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019             Page 8 of 9
       factual findings. Because the probate court misplaced the burden of proof, its

       decision is contrary to law.



                                                 Conclusion
[16]   The appealed order is contrary to law. Accordingly, we reverse and remand for

       further proceedings consistent with this opinion.


[17]   Reversed and remanded.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-ES-265 | July 15, 2019        Page 9 of 9
