                                                                     Mar 11 2015, 10:16 am




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John P. Young                                               ERIC N. ALLEN, PERSONAL
Young & Young                                               REPRESENTATIVE
Indianapolis, Indiana                                       Michael C. Cooley
Sandra L. Blevins                                           Kevin G. Harvey
Betz + Blevins                                              Allen Wellman McNew Harvey, LLP
Indianapolis, Indiana                                       Greenfield, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA
                                                            March 11, 2015
                                                            Court of Appeals Cause No.
In re the Supervised Estate of                              30A01-1407-ES-288
Gary Roberts, Deceased
                                                            Appeal from the Hancock Circuit
                                                            Court
Martha Blevins, Appellant                                   The Honorable Richard D. Culver,
                                                            Judge
                                                            Case No. 30C01-1311-ES-186

                      And


In re the Supervised Estate of                              Court of Appeals Cause No.
                                                            30A01-1407-ES-288
Elizabeth A. Roberts, Deceased
                                                            Appeal from the Hancock Circuit
                                                            Court
Martha Blevins, Appellant                                   The Honorable Richard D. Culver,
                                                            Judge
                                                            Case No. 30C01-1311-ES-173




Robb, Judge.



Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015                     Page 1 of 9
                                 Case Summary and Issues
[1]   Gary Roberts died intestate on September 27, 2013, and his widow, Elizabeth

      Roberts, died testate on November 2, 2013. Martha Blevins filed a claim

      against Gary’s Estate. Following a hearing, the trial court issued an order that

      concluded, among other things, that a gun collection located in the Robertses’

      home was “household goods” to which Elizabeth held a right of survivorship

      under Indiana Code section 32-17-11-29. Blevins appeals that order, raising

      two issues for review: (1) whether the trial court correctly determined that the

      gun collection met the requirements in Indiana Code section 32-17-11-29(c)(1)

      to create a right of survivorship; and (2) whether the trial court abused its

      discretion by admitting into evidence, over Blevins’s hearsay objection, three

      exhibits related to the purchase and origin of the gun collection. Concluding

      that the gun collection does not fit within the term “household goods,” we

      reverse and remand.1



                             Facts and Procedural History                                   2




[2]   Gary and Elizabeth Roberts were married for approximately thirty-one years.

      On September 27, 2013, Elizabeth shot and killed Gary because she believed it




      1
        Because our conclusion that the gun collection does not fall within the scope of the term “household
      goods” is outcome-determinative, we do not address Blevins’s claim that the trial court abused its discretion
      by allowing the admission of hearsay evidence.
      2
        We heard oral argument in this case on February 17, 2015 at Wabash College. We would like to thank the
      Wabash faculty, staff, and students who attended, and we commend counsel for their preparedness and oral
      advocacy.

      Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015                           Page 2 of 9
      was necessary to protect law enforcement officers who were coming to the

      residence. Elizabeth shot herself and died on November 2, 2013.


[3]   Prior to their deaths, the couple amassed a sizeable gun collection consisting of

      approximately 330 guns, bayonets, knives, gun powder, magazines,

      ammunition, and other assorted weaponry and munitions (collectively referred

      to as “the gun collection” or “the collection”). A vast majority of the collection

      was kept in the Robertses’ basement in a “gun room.” Appellant’s Appendix at

      476. Elizabeth had access to the gun room, but she had not gone into it for

      thirteen years prior to the day Gary was killed.


[4]   A number of guns were kept throughout other common areas of the house,

      including the kitchen, bedroom, and living room. Additionally, Elizabeth kept

      a shotgun on the kitchen table and two guns in the couple’s bedroom. Gary

      enjoyed target shooting and shooting clay pigeons, and Elizabeth went shooting

      with Gary on occasion.


[5]   Early in the marriage, Elizabeth was involved in purchases adding to the gun

      collection, and she would go with Gary to make purchases. Elizabeth bought a

      few guns for Gary. However, as the marriage went on, Gary purchased many

      guns without Elizabeth’s knowledge, and at the time Gary died, Elizabeth did

      not know how many guns and other items were in the collection. Elizabeth

      supported Gary’s hobby of collecting guns and believed that it was a good

      investment.




      Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015   Page 3 of 9
[6]   Gary died intestate on September 27, 2013, and Elizabeth was the sole heir to

      Gary’s estate. At Elizabeth’s request, Eric Allen petitioned for appointment as

      the personal representative of Gary’s Estate, and Allen was appointed on

      September 30, 2013. On November 2, 2013, Elizabeth died testate, and Allen

      was appointed as the personal representative of Elizabeth’s Estate pursuant to

      her written will. After Elizabeth’s death, Allen sold the gun collection at

      auction for a net profit of $505,599.74.


[7]   On October 16, 2013, Blevins filed a claim against Gary’s Estate, seeking

      damages for personal injuries she claimed to have sustained as a result of a car

      accident caused by Gary’s negligence. Allen disallowed Blevins’s claim on

      October 22, 2013. On December 3, 2013, Allen filed a Motion for More

      Definite Statement as to Blevins’s claim. Blevins filed in kind on December 9,

      2013, and Allen filed his response on December 11, 2013. On behalf of Gary’s

      Estate and Elizabeth’s Estate (collectively, the “Estates”), Allen filed a

      Consolidated Petition for Determination of Ownership of Tangible Personal

      Property and Instructions. The purpose of that petition was for the trial court to

      determine how the Robertses’ assets should be divided among the Estates.


[8]   A hearing was held on the Estates’ petition on February 4, 2014. Blevins

      stipulated that, except for the gun collection, the contents of the Roberts

      residence were household goods. On June 18, 2014, the trial court issued its

      findings of fact, conclusions of law, and ruling on the Estates’ petition. That

      ruling concluded that the gun collection constituted household goods.

      Consequently, Elizabeth had a right of survivorship in the gun collection, and

      Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015      Page 4 of 9
      its entire value was allocated to Elizabeth’s Estate. Blevins now brings this

      interlocutory appeal, arguing that the trial court erred by admitting three

      exhibits over her hearsay objection and that the guns should be classified as

      personal property owned as tenants in common rather than household goods.



                                  Discussion and Decision                               3




                                        I. Standard of Review
[9]            When, as here, the trial court enters findings of fact and conclusions
               thereon, we apply the following two-tiered standard of review: we
               determine whether the evidence supports the findings and the findings
               support the judgment. The trial court’s findings of fact and
               conclusions thereon will be set aside only if they are clearly erroneous,
               that is, if the record contains no facts or inferences supporting them. A
               judgment is clearly erroneous when a review of the record leaves us
               with a firm conviction that a mistake has been made. This court
               neither reweighs the evidence nor assesses the credibility of witnesses,
               but considers only the evidence most favorable to the judgment.




      3
        Before reaching the merits of this appeal, we take a moment to address an aspect of this case that has been
      allowed to pass uncontested by the parties and the trial court: both estates had the same personal
      representative throughout the entire proceedings and thus the same attorney. We are troubled by this dual
      appointment. It is possible that the estates had different interests—in large part because Gary was shot and
      killed by Elizabeth. Allen was appointed personal representative of Gary’s estate at Elizabeth’s request and
      then of her estate by testamentary designation. It is noteworthy that separate or competing arguments were
      never made on behalf of the two estates, including competing arguments on whether the gun collection was
      in fact household goods, and all actions taken by Allen favored Elizabeth’s estate. Additionally, as a result of
      this representation, some possibly applicable statutes and legal doctrines may have been forgone. See, e.g.,
      Heinzman v. Mason, 694 N.E.2d 1164, 1168 (Ind. Ct. App. 1998) (applying the slayer rule and holding that
      principles of equity require a constructive trust to be created to prevent a person from benefitting from the
      felonious killing of another), trans. denied.

      Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015                            Page 5 of 9
[10]   Estate of Lee v. Lee & Urbahns Co., 876 N.E.2d 361, 366-67 (Ind. Ct. App. 2007)

       (citations omitted).


         II. Indiana Code § 32-17-11-29 – “Household Goods”
[11]   This case turns on an interpretation and application of Indiana Code section 32-

       17-11-29. That code section provides in pertinent part:

               (b) Except as provided in subsection (c), personal property that is
               owned by two (2) or more persons is owned by them as tenants in
               common unless expressed otherwise in a written instrument.
               (c) Upon the death of either husband or wife:
                        (1) household goods:
                                 (A) acquired during marriage; and
                                 (B) in possession of both husband and wife . . .
               becomes the sole property of the surviving spouse unless a clear
               contrary intention is expressed in a written instrument.
[12]   Ind. Code § 32-17-11-29(b)-(c). If the Estates are able to prove that the gun

       collection was (1) household goods; (2) acquired during marriage; and (3) in

       possession of both Gary and Elizabeth, then the gun collection became the sole

       property of Elizabeth immediately upon Gary’s death. But if one of those three

       elements has not been proven, then the gun collection is personal property

       owned by Gary and Elizabeth—meaning each estate is assigned half of the

       collection’s value. The burden is on the Estates to prove each element of

       Indiana Code section 32-17-11-29(c). Lutz v. Lemon, 715 N.E.2d 1268, 1270

       (Ind. Ct. App. 1999). On appeal, Blevins argues that the Estates failed to

       establish each of the necessary elements.



       Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015      Page 6 of 9
[13]   The term “household goods” is not defined in Chapter 11 of the Indiana Code, 4

       and the parties rely on various sources from both inside and outside of Indiana

       to support their positions. This court has previously decided one case dealing

       with whether a gun collection met the elements set forth in Indiana Code

       section 32-17-11-29(c) in Lutz, 715 N.E.2d at 1268. However, the issue of

       whether the guns in Lutz fit within the definition of “household goods” was not

       disputed on appeal, and the court discussed only whether the guns were

       acquired during the parties’ marriage and possessed by both parties. Id. at 1270-

       72. The Estates contend that Lutz presupposed that a gun collection is a

       household good and that the decision stands as precedent for the notion that

       such a collection is a household good. We do not agree that Lutz holds

       precedential value in that regard, because the issue was not placed in contention

       before this court. Id. at 1270 n.2 (“Neither party raises an issue as to whether

       the gun collection is a household good under the statute.”).


[14]   We believe our supreme court’s decision in Kramer v. Beebe, 186 Ind. 349, 115

       N.E. 83 (1917), provides a satisfactory definition of the term “household

       goods” as it is used in the statute. Kramer involved a class of persons seeking to

       restrain a county treasurer from levying upon their household goods to satisfy




       4
        A section of Indiana’s commercial code, which addresses warehouse liens, defines “household goods” as
       “furniture, furnishings, or personal effects used . . . in a dwelling.” Ind. Code § 26-1-7-209(d).
       A definition of “household goods” is also provided in Article 2.1 of the Indiana Code, which addresses the
       regulation of common carriers. That definition provides in relevant part that “household goods” includes
       “personal effects and property used or to be used in a dwelling when the effects and property are parts of the
       equipment or supply of that dwelling . . . .” Ind. Code § 8-2.1-17-9(a)(1).

       Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015                            Page 7 of 9
       delinquent taxes. The taxpayers’ claim was based upon a section of the Indiana

       Code that prevented a county treasurer from levying upon household goods.

       After concluding that the code section at issue was in force, the court stated that

       “household goods” were “those articles with which a residence is equipped,

       other than fixtures, designed in their manufacture as instruments of the

       household, and embrace the articles necessary, convenient, or ornamental,

       requisite to enable the delinquent not merely to live, but to live in a convenient

       and comfortable manner.” Id. at 357-58, 115 N.E. at 85-86.


[15]   Whether an item or group of items of personal property qualifies as a household

       good should be determined on a case-by-case basis. To that point, we note that

       a collection of guns may be household goods in one case but not in another.

       Under the circumstances of this case, it is our collective belief that the

       Robertses’ gun collection does not qualify as household goods.


[16]   The sheer size of the collection, the varied items in the collection, and the

       manner in which it was stored are major factors leading us to the conclusion

       that the collection of weapons and munitions should not be categorized as

       household goods. If certain property provides some recreational or practical

       use, then it is more likely to be a household good. For example, a gun or set of

       guns kept for personal protection are likely to be classified as household goods.

       Cf. In re Raines, 170 B.R. 187, 188 (Bankr. N.D.Ga. 1994) (gun used for

       personal protection qualified as household goods under federal law). However,

       the facts indicate that the vast majority of the gun collection was not owned for

       personal protection, and at most, a few weapons kept in the bedroom and

       Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015     Page 8 of 9
       kitchen were for that purpose. Indeed, the collection is so immense that it is

       difficult to imagine the collection, as a whole, played a role as an instrument of

       the household.


[17]   Furthermore, the fact that a significant portion of the collection was kept in the

       basement—out of sight—is contrary to any argument that the collection served

       an “ornamental” function. Kramer, 186 Ind. at 357-58, 115 N.E. at 85-86. In

       truth, much of the collection went unused, untouched, and even unseen by the

       Robertses.


[18]   We do not mean to suggest by our opinion in this case that guns or collections

       of other items may not be household goods. That said, we hold that the

       specifics of this gun collection make it such that it falls outside the definition of

       household goods that we have adopted from Kramer.



                                                Conclusion
[19]   Concluding the gun collection does not fit within the meaning of the term

       “household goods” as it is used in Indiana Code section 32-17-11-29(c)(1), we

       reverse and remand.


[20]   Reversed and remanded.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 30A01-1407-ES-288 | March 11, 2015     Page 9 of 9
