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FOR PUBLICATION

ATTORNEY FOR APPELLANT: ROBERT OWEN VEGELER Vegeler Law Office LLC Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES: MICHAEL S. ELVIN LUCY R. DOLLENS Locke Reynolds LLC Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
MARY C. KONGER, individually and as Personal ) Representative of the Estate of Dean T. Konger, ) ) Appellant, ) ) vs. ) ) TAMORAH SCHILLACE, K. TINA LEWIS, ) KEVIN P. KONGER, TERESA L. MCEVOY ) and MOLLY E. MILLER, ) ) Appellees. )

No. 02A03-0610-CV-500

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Phillip E. Houk, Magistrate Cause No. 02D01-0412-EU-846

October 23, 2007

OPINION - FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE

Mary C. Konger ("Mary") brings this interlocutory appeal, pursuant to Indiana Appellate Rule 14(A)(1), from the trial court's order that she pay the full principal and interest on a line of credit secured by real property in which she holds a life estate. Mary raises a single issue for our review, which we restate as the following two issues: 1. Whether Mary timely filed a contingent claim against the estate of her late husband for contribution payments on the line of credit. Whether the trial court abused its discretion in denying Mary's Petition to Pay Mortgage Debt from the funds of her late husband's estate while the mortgaged property was an asset of the estate.

2.

We affirm. FACTS AND PROCEDURAL HISTORY On May 19, 2004, Dean Konger ("Dean") along with Mary, his wife, jointly and severally entered into a revolving Home Equity Line of Credit Agreement ("Line of Credit") with Bank One, N.A. ("Bank One"). The Line of Credit was approved for a maximum balance of $50,000 and was secured by a mortgage on Dean and Mary's marital residence ("marital residence"), which was titled solely in Dean. Bank One duly recorded the mortgage on June 2. On November 24, Dean died testate, leaving Mary a life estate in the marital residence. Mary had no ownership interest in the marital residence during Dean's life. Dean devised a remainder interest in the marital residence to the children from his first marriage, Kevin P. Konger, K. Tina Lewis, Tamorah S. Schillace, Teresa L. McEvoy, and Molly E. Miller (collectively, "Children"). Dean's will did not mention the Line of

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Credit, and, at the time of Dean's death, the balance on the Line of Credit was $46,255.20. 1 On December 8, Dean's will was admitted to probate and Mary was named the Personal Representative of Dean's estate. Notice of the probate of Dean's estate was published on December 14 and 21. Neither Bank One nor Mary filed a claim against Dean's estate for payment of the outstanding balance on the Line of Credit. Approximately one year after Dean's death, Mary filed the Final Report of the Personal Representative of Dean's Estate in the trial court ("Final Report"). In the Final Report, Mary proposed that Dean's estate "pay[] 50% of the outstanding . . . Line of Credit indebtedness" and that she, "as an individual, pay[] off the remaining 50%." Appellee's App. at 3. The Children objected, and, on June 7, 2006, they moved for summary judgment "with regard to the estate's liability for the outstanding balance[,] . . . a declaration that [Mary] is solely liable on the [Line of Credit,] . . . [and] a declaration that [she] must immediately repay the outstanding balance." Id. at 60. Mary opposed that motion and, in her individual capacity, cross-filed for summary judgment "requiring the [Children] to pay the ongoing principal payments owed on the outstanding promissory note and mortgage." Id. at 118. At the same time, Mary, in her capacity as Personal Representative, filed with the court a Petition to Pay Mortgage Debt ("Petition") "to pay the monthly payments due on the [L]ine of [C]redit" from the funds of Dean's estate as an expense of administration. Appellant's App. at 13.
Specifically, the trial court stated, "[a]s of November 30, 2004 (two days prior to Dean's death), the balance on the [Line of Credit] was $46,255.20." Appellant's App. at 2. Although November 30 was actually six days after Dean's death, the parties do not dispute that the court accurately determined the outstanding balance on the Line of Credit at the time of Dean's death.
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After a hearing, the court denied both motions for summary judgment and the Petition, entering findings of fact and conclusions thereon. The court agreed with the Children's contention that "Mary did not file a claim against Dean's estate for contribution toward payment of the outstanding balance on the [Line of Credit]," and, as such, "she is barred from receiving contribution from the estate towards payment of the [L]ine of [C]redit." Id. at 2-3. The court also held that "Mary is required to fulfill her contractual responsibility and to continue to make payments[] [on the Line of Credit] so as to maintain the remainderm[e]n's interest[s] in the real estate." Id. at 3. During the administration of Dean's estate, Mary made interest payments of $4,392.25 and principal payments of $3,997.12 on the Line of Credit. 2 This interlocutory appeal ensued. 3 DISCUSSION AND DECISION In general, Mary contends that the trial court erred when it ordered her to pay both the principal and the interest on the Line of Credit. More specifically, Mary's arguments are that the trial court improperly denied summary judgment on her request for contribution, and that the court also improperly denied her Petition that the mortgage debt be paid as an expense of administration. Further, the parties dispute whether the debt on

On February 28, 2007, Mary, as Personal Representative, conveyed a life estate in the martial residence to herself. The order Mary appeals from was entered by a magistrate rather than a judge, and therefore the order was not a final judgment. See Christenson v. Struss, 855 N.E.2d 1029, 1034 (Ind. Ct. App. 2006) (citing Ind. Code

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