VICTORIANO v. ESTATE OF SMITH (2021)

OPINION ON REHEARING

[1] On September 15, 2021, we issued an unpublished opinion in the case of Ashley Victoriano, individually and as Administrator of the Estate of Patrick Barnes v. Estate of Barbara J. Smith, affirming the decision of the trial court. In that case, which concerned the last will and testament of Cecil A. Smith and Barbara J. Smith (“Bobbi”), we mistakenly omitted the italicized portion of the following part of the will:

BEQUESTS:

We direct that after payment of all our just debts, our property be bequeathed in the manner following:

In the event that we pass on at the same time we request that our property be divided as follows: Cecil's half to be divided between Toby A. and Shannon Smith.. [sic]

Bobbi's half to be divided between Toby A. Smith, Shannon M. Smith, Patrick Barnes and Tammy Montana. In the event that one of us precedes the other in death, we both wish that in the event the remaining spouse should remarry that the new spouse would not be benefited [sic] any of the property; all properties should still be divided only as above mentioned when the remaining partner expires.

Appellant's App. Vol. II p. 15 (italics added).

[2] Barnes's estate argues that, because we misquoted the will, we failed to understand the will's terms and properly follow the rules of construction in determining Bobbi's intent, and therefore we should reverse and remand with orders to award each of Bobbi's children a 1/4 share. This omission does not alter our analysis. “[W]hen examining a will, the primary purpose is to determine and carry out the intent of the testator.” In re Estate of Cashen, 715 N.E.2d 922, 924 (Ind. Ct. App. 1999). Despite the omitted language, the will specifically states the intent that “[i]n the event that one of us precedes the other in death” Bobbi and Cecil wanted all properties to “still be divided only as above mentioned when the remaining partner expires[,]” even if a surviving spouse were to remarry. Appellant's App. Vol. II p. 15. If anything, the omitted language underscores that, regardless of whether Bobbi and Cecil died at the same time or one predeceased the other, they wanted their estate distributed among the children unequally so that Bobbi and Cecil's children received 3/8 shares while Bobbi's children from a previous marriage only received 1/8 shares.

[3] We grant rehearing for the limited purpose of correction our omission, and we reaffirm our original disposition in all other respects.

Bradford, Chief Judge.

Robb, J., and Altice, J., concur.