FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

CHARLES W. LAHEY                              M. PATRICIA HACKETT
South Bend, Indiana                           SCOTT A. LOITZ
                                              PETER A. TIMLER
                                              Hackett & Associates, P.C.
                                              South Bend, Indiana

                                                                     Jun 25 2014, 9:53 am
                             IN THE
                   COURT OF APPEALS OF INDIANA

IN RE THE ESTATE OF RUTH M. RUPLEY,           )
                                              )
CHARLES A. RUPLEY,                            )
                                              )
     Appellant-Respondent,                    )
                                              )
             vs.                              )     No. 71A05-1306-ES-288
                                              )
MICHAEL L. RUPLEY,                            )
                                              )
     Appellee-Petitioner.                     )


                   APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
                      The Honorable Michael G. Gotsch, Sr., Judge
                             Cause No. 71C01-0903-ES-6


                                    June 25, 2014

                            OPINION - FOR PUBLICATION

MAY, Judge
       Charles A. Rupley appeals the trial court’s order concluding the balance of a

promissory note executed by Charles and his mother, Ruth Rupley, is an asset of Ruth’s

Estate. As it was not, we reverse.

                       FACTS AND PROCEDURAL HISTORY

       In March 2006, Charles and Ruth executed a promissory note:

       Charles A. Rupley borrowed $72,500 from Ruth M. Rupley on March 22,
       2006. The interest rate is 5. for this note. The note is payable on death to
       Charles A Rupley.

                                                  [Signed by Ruth M. Rupley]

       I promise to pay Ruth M. Rupley the sum of $72,500 together with interest at
       the rate of % per annum. Principal and accrued interest if not sooner paid
       shall be due and payable on demand or on the death of the either Ruth M.
       Rupley or Charles A. Rupley, dated March 22, 2006.

                                                  [Signed by Charles A. Rupley]


Appellant’s App. p. 12.

       Ruth died in October 2008. Her will designated Charles and his brother Michael as

co-personal representatives. In March 2009, Charles and Michael filed a petition to probate

the will. Shortly thereafter, Michael filed a petition to remove Charles as co-personal

representative of the estate. In June 2010, the trial court granted Michael’s motion and

appointed 1st Source Bank as the successor personal representative.

       In October 2012, 1st Source Bank filed a Petition Requesting Instructions as to

Interpretation and Construction and Disposition of Certain Estate Assets, wherein 1st Source

Bank asked the trial court to determine whether the note balance: 1) transferred to Charles at

                                              2
Ruth’s death; 2) is an asset of Ruth’s estate; or 3) was forgiven by Ruth upon her death.

       At a hearing on the petition, Charles argued the Indiana Transfer on Death Property

Act applies retroactively to the note and pursuant to the Act, the transfer on death provision

in the note transferred it to Charles when Ruth died. Michael, on the other hand, argued the

Act does not does not apply retroactively to the note, which constitutes an invalid attempt to

make a testamentary transfer. On May 17, 2013, the trial court issued an order summarily

instructing 1st Source Bank to include the note as an asset of Ruth’s estate.

                             DISCUSSION AND DECISION

       Charles contends the trial court erred in concluding the promissory note executed by

Ruth and Charles in 2006 is an asset of the Estate.    We must first determine whether the

Transfer on Death Property Act, enacted in 2009, applies retroactively to the 2006

promissory note.

       Whether a statute or amendment is applied retroactively to a pending case depends on

the legislature’s intent. Chestnut v. Roof, 665 N.E.2d 7, 9 (Ind. Ct. App. 1996). Absent an

express indication otherwise, we presume the legislature intends statutes and amendments to

apply prospectively only. Id. To ascertain legislative intent, we look at the act as a whole

and consider each section with reference to all other sections. Id. at 9-10.

       The Transfer on Death Property Act clearly indicates that it applies retroactively to a

“transfer on death security, transfer on death securities account, and pay on death account

created before July 1, 2009.” Ind. Code § 32-17-14-2(a). By its terms, the promissory note

in this case, which states that it is payable upon death to Charles, is a pay on death account

                                              3
created before July 1, 2009. The Transfer on Death Property Act therefore applies

retroactively to it. 1

        We now turn to Ind. Code §32-17-14-4(d), which explains that a statutory transfer on

death directive is accomplished in a form substantially similar to the following: 1) insert the

name of the owner or owners; 2) insert transfer on death to, TOD, pay on death to, or POD,

and insert the name of the beneficiary or beneficiaries. Here, the promissory note includes

the name of the owner, Ruth, and the beneficiary, Charles. It includes language directing the

note is payable on death to Charles. Because the promissory note meets the statutory

requirements of a pay on death account, the note should have transferred directly to Charles

upon Ruth’s death. It is not an asset of Ruth’s estate, and the trial court erred in so

concluding.

        Reversed.

VAIDIK, C.J., concurs.

RILEY, J., concurs in part and dissents in part with separate opinion.




1
 Michael argues that the statute does not apply because retroactive application would “adversely affect a right
given to an owner or beneficiary.” See Ind. Code § 32-17-14-2(a)(1). However, this argument is not
persuasive because the Estate is neither an owner (Ruth) nor a beneficiary (Charles) of the promissory note.
                                                      4
                             IN THE
                   COURT OF APPEALS OF INDIANA
IN RE THE ESTATE OF RUTH M. RUPLEY, )
                                    )
CHARLES A. RUPLEY,                  )
                                    )
      Appellant-Respondent,         )
                                    )
            vs.                     )                    No. 71A05-1306-ES-288
                                    )
MICHAEL L. RUPLEY,                  )
                                    )
      Appellee-Petitioner.          )


RILEY, Judge, concurring in result in part and dissenting in part

       I respectfully disagree from the majority’s conclusion that the Transfer on Death

Property Act, enacted in 2009, retroactively applied to the 2006 Promissory Note. Although I

ultimately agree that the trial court erred in concluding that the Promissory Note is an asset of

Ruth’s estate, I do so for different reasons than the majority.

                          I. Transfer on Death Property Act
       The Transfer on Death Property Act includes an express, legislative statement

applying the Act retroactively only in certain situations. Specifically, the Act provides:

       Sec. 2(a) Except as provided elsewhere in this chapter, this chapter applies to
       a transfer on death security, transfer on death securities account, and pay on
       death account created before July 1, 2009, unless . . .


                                               5
I.C. § 32-17-14-2. Pursuant to the Act’s provisions, a Promissory Note is explicitly defined

as “Property,” and therefore, I conclude that the limited retroactive character of the Act does

not apply to the contested Note. See I.C. § 32-17-14-3(10)(D).

       In an effort to nevertheless apply the Act retroactively on the contested Promissory

Note, the majority’s analysis commences from the same premise that the Act “applies

retroactively to a transfer on death security, transfer on death securities account, and pay on

death account created before July 1, 2009.” See Slip Op. p. 3 (citing I.C. § 32-17-14-2(a).

Although the majority throughout its opinion characterizes the Note as a Promissory Note

and the parties did not contest its legality, the majority, now by a sleight of hand, notes that

actually, by its terms, the Promissory Note is a pay on death account. However, the Note

cannot be both a Promissory Note and a pay on death account as that would lead to

incongruous results within the statute—an outcome never intended by our Legislature. On

the one hand, a promissory note, as property, is explicitly excluded from the retroactive

application of the Act whereas a pay on death account falls within the limited retroactive

exceptions. As its character was never disputed until the majority “re-termed” it, I

necessarily conclude that the retroactive character does not apply.

                                    II. Asset of the Estate

       Concluding that the Transfer on Death Act is not applicable, I turn to the provisions of

Indiana Code section 32-17-11-28, to determine whether the language used in the Promissory

Note caused it to become non-testamentary and therefore outside the realm of the Estate.

       Indiana Code section 32-17-11-28 states as follows

                                               6
       Provisions in certain agreements nontestamentary; creditors’ rights
       Sec. 28. (a) Any of the following provisions in an insurance policy, contract of
       employment, bond, mortgage, promissory note, deposit agreement, pension
       plan, trust agreement, conveyance or any other written instrument effective as
       a contract, gift, conveyance, or trust in considered to be nontestamentary, and
       this title and IC 29 do not invalidate the instrument or any provisions:

              (1) That money or other benefits due to, controlled, or owned by a
              decedent before the person’s death shall be paid after the person’s death
              to a person designated by the decedent in either the instrument or a
              separate writing, including a will, executed at the same time as the
              instrument or subsequently.

              (2) That any money due or to become due under the instrument shall
              cease to be payable in event of the death of the promise or the promisor
              before payment or demand.

              (3) That any property that is the subject of the instrument shall pass to a
              person designated by the decedent in either the instrument or a separate
              writing, including a will, executed at the same time as the instrument or
              subsequently.

       (b) This section does not limit the rights of creditors under other Indiana laws.

       In analyzing the language of the Promissory Note, the Note appears to be ambiguous

on its face, with incongruous language in both halves. If an agreement is ambiguous, we

determine whether the ambiguity is patent or latent. Eckhart v. Davis, 631 N.E.2d 494, 497

(Ind. Ct. App. 1994). A patent ambiguity is apparent on the face of the instrument and arises

from an inconsistency or inherent uncertainty of language used so that it either conveys no

definite meaning or a confused meaning. Id. Extrinsic evidence is not admissible to explain

or remove a patent ambiguity. Id. Conversely, a latent ambiguity does not emerge until one

attempts to implement the words as directed in the instrument. Id. Extrinsic evidence is

admissible to explain a latent ambiguity. Id. at 498.

                                               7
       Because a patent ambiguity exists, I interpret the Promissory Note before us without

the aid of extrinsic evidence. The second part of the Note establishes that “the principal and

accrued interest if not sooner paid [--which it was not--] shall be due + payable on demand or

on the death of either [Ruth] or [Charles][.]” (Appellant’s App. p. 23). As no demand was

ever made for payment, pursuant to the Note’s language, Ruth’s death triggered Charles’

obligation to pay the remaining amount due in full. (Appellant’s App. p. 23). However, the

first part of the Note completes the second part’s missing instruction, i.e., who the amount

should be paid to. Specifically, the first part of the Note identifies “[t]he note is payable on

death to [Charles].” (Appellant’s App. p. 23). As such, the Promissory Note falls within the

purview of I.C. § 32-17-11-28(1) and therefore becomes non-testamentary. Consequently, I

conclude that the trial court erred in concluding that the amount due under the Promissory

Note is an asset of the Estate.




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