Supervised Estate: Ashley Victoriano v. Estate of Barbara J. Smith
Annotate this Case
Download PDF
FILED Nov 16 2021, 8:04 am CLERK OPINION ON REHEARING Indiana Supreme Court Court of Appeals and Tax Court ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Joseph Leon Payne Payne Law Office, LLC. Austin, Indiana Kerry Thompson Houston, Thompson and Lewis, PC Scottburg, Indiana IN THE COURT OF APPEALS OF INDIANA Ashley Victoriano, individually and as Administrator of the Estate of Patrick Barnes November 16, 2021 Appellant-Respondent, Appeal from the Scott Superior Court v. Estate of Barbara J. Smith, Appellee-Petitioner. Court of Appeals Case No. 21A-ES-407 The Honorable Jason Mount, Judge Trial Court Cause No. 72C01-2001-ES-1 Bradford, Chief Judge. [1] On September 15, 2021, we issued an unpublished opinion in the case of Ashley Victoriano, individually and as Administrator of the Estate of Patrick Barnes v. Estate of Barbara J. Smith, affirming the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 Court of Appeals of Indiana | Memorandum Decision 21A-ES-407| November 16, 2021 Page 1 of 3 (“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 Court of Appeals of Indiana | Memorandum Decision 21A-ES-407| November 16, 2021 Page 2 of 3 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. Robb, J., and Altice, J., concur. Court of Appeals of Indiana | Memorandum Decision 21A-ES-407| November 16, 2021 Page 3 of 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
