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FOR PUBLICATION
ATTORNEY FOR APPELLANT: DAVID W. STONE IV Stone Law Office Anderson, Indiana ATTORNEYS FOR APPELLEE: ROBERT A. SPAHR TIMOTHY P. SPAHR Peru, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE UNSUPERVISED ESTATE OF JULIANNA SHARP ROBERTSON JAMES NYE, Appellant-Petitioner, vs. LYNN D. ROBERTSON, Appellee-Respondent. ) ) ) ) ) ) ) ) ) ) ) )

No. 52A05-0604-CV-190

APPEAL FROM THE MIAMI SUPERIOR COURT The Honorable Daniel C. Banina, Judge Cause No. 52D01-0412-EU-00041

January 12, 2007 OPINION - FOR PUBLICATION

SULLIVAN, Judge

Appellant-Petitioner, James Nye, challenges the trial court's order invalidating a testamentary trust provision in his mother's will as an illegal restraint of marriage and awarding his step-father, Appellee Lynn Robertson, a life-estate in the real estate at issue. Upon appeal, Nye argues that the trial court's invalidation of the provision and award of a life estate to Robertson was an error of law. We affirm. Julianna Robertson, who was the mother of James Nye, Bret Nye, and Melissa Nye, and who was married to Lynn Robertson at the time of her January 10, 2002 death, left a will with the following provision: " ITEM FOUR

I hereby give and devise my real estate . . . more commonly known as 320 Blair Pike, Peru, Indiana, IN TRUST to James Lewis Nye, as Trustee, for the following uses and purposes, to-wit: a) The Trustee shall allow my husband, Lynn D. Robertson, if he survives me, to continue to live at said real estate as if he had been devised a life estate in said real estate, or until he remarries or allows any female companion to live with him who is not a blood relative. I direct my husband to pay all charges which are incident to maintaining such property, including without limitation, all assessments, insurance premiums, taxes, and ordinary repairs. If my husband shall fail to pay any of such charges, then any one or more of my children (the Remaindermen) may pay the charges. In the latter event, such child or children shall have a lien against such property in the amount so expended. b) Upon the death of my husband, or upon any prior termination of his interest, I devise said real estate to my children, James Louis Nye, Bret Alan Nye, and Melissa Ann Nye, equally, as vested Remaindermen, and this Trust shall terminate." App. at 5. Julianna and Lynn Robertson were living at 320 Blair Pike at the time of Julianna's death. The residence was in Julianna's name only. Lynn Robertson subsequently remarried following Julianna's death.
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On December 23, 2004, Lynn Robertson filed with the court a petition for probate of Julianna's will and for issuance of letters testamentary for the unsupervised administration of her estate. Following a January 4, 2005 hearing, the court admitted a copy of the will to probate, opened an Unsupervised Estate Administration, ordered that the original will be filed with the clerk, and appointed James Nye as executor. On April 11, 2005, pursuant to James Nye's petition, the court ordered an appraisal of the property at 320 Blair Pike. 1 On August 26, 2005, James Nye, as

executor, 2 filed a Petition to Determine Heirs and Disposition of Residential Property with Notice of Hearing for November 9, 2005. Following a November 9 3 hearing on such petition, the court issued a January 26, 2006 order finding that the will gave Lynn Robertson a life estate in the property at 320 Blair Pike and that the provision limiting his rights to such property upon the basis that he not remarry was an invalid condition in restraint of marriage. The court therefore voided the condition and found Robertson to be the owner of a life estate in the property pursuant to Indiana Code

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