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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Jul 16 2010, 9:57 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: JOHN R. HILLIS Logansport, Indiana

ATTORNEY FOR APPELLEE: KEVIN J. RILEY Lafayette, Indiana

IN THE COURT OF APPEALS OF INDIANA
ESTATE OF MARY L. RILEY and MARJORIE R. POTTS, Appellants-Defendants, vs. JAMES RILEY, Appellee-Plaintiff. ) ) ) ) ) ) ) ) ) )

No. 08A02-1001-ES-33

APPEAL FROM THE CARROLL CIRCUIT COURT The Honorable Donald E. Currie, Judge Cause No. 08C01-9601-ES-4

JULY 16, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge

STATEMENT OF THE CASE The Estate of Mary L. Riley ("the Estate") and executrix/personal representative Marjorie R. Potts ("Potts") appeal the trial courts decision in favor of Rileys son, James W. Riley, Jr. ("Riley"); the James W. Riley, Jr. Trust ("the Trust"); and Rileys grandchildren, James Todd Riley; Eric Tedd Riley; and Janell Sue Riley. We affirm. ISSUES The Estate and Potts raise two issues for review, which we restate as: I. Whether the trial court erred when it denied Potts request in the November 13, 2009 "Second Amended Final Report," that all the Estates assets be awarded to her. Whether the trial court erred in sustaining the objection of the Estate and Potts offer to introduce Mary Rileys prior will as evidence.

II.

FACTS AND PROCEDURAL HISTORY Mary Riley, the mother of Potts and Riley, died testate on January 16, 1996. At the time of her death, Mary owned mineral rights in several parcels of Oklahoma real estate and in at least one Texas property. Marys will, dated September 3, 1991, provided that her net assets would be distributed "one-half (1/2) thereof to [Potts, and] one-half (1/2) thereof to [Potts] as Trustee of the James W. Riley, Jr. Trust." (Appellants App. at 29). The will directed Potts to "collect the income from the property comprising the Trust Estate, and remit the net income derived therefrom in quarterly or other convenient

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installments to [Riley], or apply the same for his benefit, for so long as he shall live." Id. The will further directed that upon Rileys death, the Trustee should distribute the balance remaining in the Trust Estate to Marys grandchildren. On January 23, 1996, a supervised estate for Mary was opened in the circuit court of Carroll County, Indiana, and Potts was appointed personal representative. Potts

opened an estate in Oklahoma in June of 1999, and the Oklahoma court recognized her status as the personal representative. On June 21, 1999, the Oklahoma court entered an "Order Allowing Final Account, Decree Determining Heirs, Devisees and Legatees," finding in relevant part that Marys rights and interests in seventeen Oklahoma properties should be distributed one-half to Potts and one-half to the Trust under the provisions of Marys will. On August 7, 2008, Potts filed two documents in the Carroll Circuit Court: (1) "Personal Representatives Final Report and Account/Petition to Settle and Allow Account" and (2) "Personal Representatives Inventory of Property Subject to Her Control January 16, 1996." (Appellees App. at 8, 12). On June 1, 2009, Potts filed (1) an "Amended Personal Representatives Final Report and Account/Petition to Settle Account" and (2) an "Amended Personal Representatives Inventory of Assets to be Distributed." (Appellees App. at 59, 63). Riley and the grandchildren (as remainder beneficiaries of the Trust) filed an action against Potts in the Carroll Circuit Court, alleging breach of her duties as trustee.

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The Riley and Potts actions were consolidated, and a bench trial was held on June 2, 2009. The trial court approved Potts withdrawal as trustee and concluded that Potts had a conflict of interest as personal representative and claimant against the Estate. Potts argued that she had a claim against the Estate because Riley had allegedly been advanced part of his inheritance when on March 12, 1981, Riley signed a six-month promissory note to Mary in the principal amount of $51,631.72. The trial court

concluded that Potts claim should not be allowed because the statute of limitations with regard to the note had passed in 1994. (Conclusion of Law #2; Appellees App. at 70). The trial court also concluded that Potts had failed to preserve trust income for the benefit of Riley and the grandchildren, "instead using funds to pay herself." (Conclusion of Law #9; Appellees App. at 71). Citing Ind. Code

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