State Ex Rel. Family & Social Services Administration v. Estate of Roy

BARNES, Judge,

concurring in part and dissenting in part.

I concur in Part I of the majority opinion but respectfully dissent from Part II, regarding the Estate’s cross-appeal. Although I appreciate the majority’s careful analysis of the interplay between Indiana Code Sections 29-l-7-15.1(b) and 29-1-15-3,1 must disagree with their conclusion that Subsection 15.1(b) does not preclude the sale of Roy’s real property to pay a debt owed to FSSA. Even though some of the language in Subsection 15.1(b) appears antiquated, any statute must be given effect unless and until the General Assembly decides to repeal it. To give effect to Subsection 15.1(b), I believe that because FSSA is no longer claiming that it has a valid lien upon Roy’s real property and because his estate was not opened within five months of death, the property cannot be sold to pay FSSA’s claim.

First, I note that the majority substantially relies upon the headings given to statutory sections and chapters. As for statutory titles, articles, and chapters in the Indiana Code, any headings found on them expressly “are not part of the law-” Ind.Code § 1 — 1—1—5(f). As for statutory sections, any headings given to them are provided by unofficial publishers, because bills themselves do not contain headings for statutory sections. See Legislative Services Agency, Bill Drafting Manual Chapter 3, Section G(2) (“Section headings, which do become a part of the law, are not to be used in bills, even when a new section is being added to a chapter that has sections with existing headings-”). See also P.L. 36-2011, § 4 (no heading provided for Section 29-1-7-15.1 in recent amendment to statute that is irrelevant to this case).8 Thus, we should be guided by the content of the statutes.

Second, the majority agrees with FSSA that Subsection 15.1(b) only “imposes limi*86tations upon an executor or administrator who desires, without court order, to unilaterally sell estate real property to pay debts of the estate” and is not a limitation upon a court ordering the sale of real property to satisfy debts, pursuant to Section 29-1-15-3. Op. pp. 85-86. However, an executor or administrator for a supervised estate already is prohibited from independently selling real property without a court order, for any reason, unless a will or statute expressly allows it. Crumpacker v. Howes, 140 Ind.App. 37, 53-54, 222 N.E.2d 296, 306 (1966). My conclusion is that because Subsection 15.1(b) says an executor or administrator cannot sell real property to satisfy a debt under certain circumstances, that necessarily means a trial court cannot order an executor or administrator to sell real property under those very same circumstances. Otherwise, Subsection 15.1(b) merely prohibits what generally is already prohibited, the unilateral sale of real property by an estate executor or administrator.

Third, the majority expresses concern that enforcing the five-month time limit in Subsection 15.1(b) would provide an incentive to delay the opening of an estate until that time passed. However, creditors do not have to stand idly by and wait for heirs to open an estate. Any “interested person” may petition to open an estate. I.C. § 29-l-7-4(a). This means that anyone having a claim against a deceased individual may petition to have an estate opened. McCool v. Old Nat'l, Bank in Evansville, 214 Ind. 679, 685, 17 N.E.2d 820, 823 (1938). In fact, FSSA here did petition to have an estate opened for Roy, albeit nearly ten months after his death.

Fourth, the majority asserts that Subsection 15.1(b)’s five-month time limit conflicts with both Section 29-1-15-3, which states generally that either real or personal property may be sold to satisfy claims against an estate, and Indiana Code Section 29-l-14-l(d), which provides nongovernmental creditors with nine months after death to file a claim against an estate. When two statutes appear to conflict, a court’s first task in statutory interpretation is to attempt to harmonize those statutes. State v. Universal Outdoor, Inc., 880 N.E.2d 1188, 1191 (Ind.2008). “So long as two statutes can be read in harmony with one another, we presume that the Legislature intended for them both to have effect.” Burd Mgmt., LLC v. State, 831 N.E.2d 104, 108 (Ind.2005). The latter-enacted of two statutes will control and effectively repeal an earlier statute if they are repugnant, but only if the later act is so inconsistent with the earlier one so as to make them irreconcilable. Id. “Where possible, if conflicting portions of a statute can be reconciled with the remainder of the statute, every word in the statute must be given effect and meaning, with no part being held meaningless.” Id. Additionally, a specific statute controls a statute dealing with the same subject matter in more general terms. Northwest Towing & Recovery v. State, 919 N.E.2d 601, 606 (Ind.Ct.App.2010).

Here, there is no conflict between Subsection 15.1(b) and Sections 29-l-14-l(d) and 29-1-15-3 anytime an estate is opened within five months of death. Subsection 15.1(b) has no operation in such a case. It also has no operation with respect to the sale of either personal property, or real property upon which there is a valid hen. That it may prohibit the sale of real property without a valid lien if an estate is opened more than five months after death does not make it irreconcilable with the other, more general and more recent statutes regarding the payment of claims. Also, just because the other, more general statutes do not mention the more specific Subsection 15.1(b) or the time limit it con*87tains does not mean the time limit does not exist.

Possibly, Subsection 15.1(b) is like a human appendix, a vestigial statute that has been long forgotten and usually performs no function, until it crops up and causes unexpected problems in a case such as this. However, it is up to the General Assembly to decide whether to perform surgery to remove it. Or, the General Assembly may believe that additional time constraints on the sale of estate real property are necessary to facilitate the expeditious and unencumbered transfer of such property. In any event, it is that body’s decision to make. I am concerned the majority has effectively repealed Subsection 15.1(b) when it is unnecessary to do so. Thus, although I agree that the trial court erred in completely disallowing FSSA’s claim against Roy’s estate, I conclude that any such claim cannot be paid from the sale of Roy’s real property.

. A comparison of the Bums Annotated and West Annotated versions of the Indiana Code reveals that West has titled Section 29-1-7-15.1, “Determination of intestacy; presentation of will for probate; time limits; sale of property,” while Bums has titled the same statute, "Time limit for probate and administration.”