FOR PIUUBLICATION

ATTORNEY FOR APPELLANT:	ATTORNEY FOR APPELLEE:

MARVIN E. COFFEY	JACK G. HITTLE

Indianapolis, Indiana	Church, Church, Hittle & Antrim

			Noblesville, Indiana	

	IN THE

	COURT OF APPEALS OF INDIANA

BONNIE L. DUNNEWIND, as Trustee of the	)

Irrevocable Trust Agreement dated February 21, 	)

1995, BONNIE L. DUNNEWIND Individually,	)

and JOHN T. DUNNEWIND, Individually,	)

			)

	Appellants-Respondents,	)

			)

		vs.	)	No.  49A05-9710-CV-424

			)

THOMAS E. COOK, Personal Representative	)

of the Estate of Florence M. Cook,	)

			)

	Appellee-Petitioner.	)

	APPEAL FROM THE MARION SUPERIOR COURT, PROBATE DIVISION

	The Honorable Charles J. Deiter, Judge

	Cause No.  49D08-9509-ES-713

	(JulyJuly 10, 1998Handdown Date)

	MEMORANDUM DECISIONOPINION - NOT FOR PUBLICATION

RUCKER, Judge

	Appellants-Respondents Bonnie L. Dunnewind and John T. Dunnewind ("Dunnewinds") appeal from the trial court's order determining that assets remaining in the

Irrevocable Trust of Florence M. Cook are subject to Thomas E. Cook's ("Cook") election

to take against the will.  The Dunnewinds raise one issue for our review which we rephrase

as:  whether the trial court erred by including the trust oproperty in the decedent's naestate. in

finding and concluding that the trust's sole purpose was to avoid Cook's statutory share in the

estate.   We

affirm.

	Cook is the surviving spouse of Florence Cook ("Decedent").  There were no children

born of the marriage; however, the Decedent was survived by two children from a prior

marriage, Bonnie and John.  On July 17, 1976 the Decedent executed a will in which she left

all her solely owned property to the Dunnewinds.  After discovering she was terminally ill,

the Decedent executed an Irrevocable Trust Agreement on February 21, 1995.  The trust

provided that following Decedent's death, Cook would receive a life estate in the marital

residence, a life estate in all household goods and personal property utilized at the marital

residence, and the sum of $24,500.00.  The trust also provided that upon the death of the

Decedent and Cook, any remaining trust assets were to go to the Dunnewinds.  The trust

made no provision for payment of income to the Decedent.  However, Bonnie continued to

pay income from the trust for the Decedent's benefit.  The trust failed todid not providegrant the Decedent

thewith any right to live in her residence although it did provide Cook the right to reside there for his

lifetime.  The Decedent made no changes to her will.  She died in July of 1995.

	On September 28, 1995 Cook filed a Petition to Determine Assets of the Estate and

to Set Aside Irrevocable Trust.  Following a hearing, the trial court entered findings of fact and conclusions of law.  Among other things, the trial court found that the sole purpose of

the trust was to prevent Cook from exercising his statutory right to the Decedent's assets as

a subsequent surviving spouse.  Based upon the findings, the trial court concluded the trust's

purpose was to avoid Cook's election of his statutory right as a subsequent childless spouse,

and the trust was not administered according to its terms.  Thereupon, the trial court issued

an order stating that the assets remaining in the trust on the date of Decedent's death are

subject to Cook's election to take against the will.  This appeal ensued in due course.

	The Dunnewinds contend the trial court erred in finding and concluding the trust's sole

purpose was to avoid an election allowed by I.C. § 29-1-3-1.1  The trial court entered special findings of fact and conclusions of law pursuant to Dunnewinds' request.  Where a party

challenges special findings and conclusions pursuant to Ind . Trial Rule 52(A), our standard

of review is two-tiered.  First, we determine whether the evidence supports the findings, and

second whether the findings support the judgment.  Bloodgood v. Bloodgood, 679 N.E.2d 953, 956 (Ind. Ct. App. 1997).  The trial court's findings and conclusions will be set aside

only if they are clearly erroneous.  Breeden v. Breeden, 678 N.E.2d 423, 425 (Ind. Ct. App. 1997).  Findings of fact are clearly erroneous if the record lacks any evidence or reasonable

inferences to support them.  Id.  In reviewing the trial court's entry of special findings, we neither reweigh the evidence nor reassess the credibility of witnesses.  Bloodgood, 679 N.E.2d at 956.  Rather, we must accept the ultimate facts as stated by the trial court if there

is evidence to sustain them.  Yates-Cobb v. Hays, 681 N.E.2d 729, 733 (Ind. Ct. App. 1997).

	In this case, the testimony and exhibits presented during the hearing revealed that the

Decedent executed the trust subsequent to discovering she had terminal cancer.  The

evidence further showed that this was the first time the Decedent sought assistance with

estate planning since 1976.  Furthermore, Bonnie Dunnewind testified the Decedent wanted

her real estate and personal property to go to the children.  Finally, there was no showing that

the trust was executed to assist the Decedent with business or financial affairs.  The trial

court, therefore, entered the following relevant findings of fact:

			1.	That the Husband and Florence M. Cook were married on April 4, 1973.  That at the time of the marriage, both

parties had been previously married and had children from a

previous marriage, and were considered "Second Childless

Spouses" as defined under Indiana Code 29-1-2-1.  They

remained Husband and Wife until the death of Florence M.

Cook on July 9, 1995.

			2.	That Florence M. Cook, on the 17th day of July, 1976, executed a Last Will and Testament . . . in which she left

all of her solely owned property to her children, Bonnie and

John, and made no provisions for her husband, Thomas E. Cook,

other than for jointly owned property.

			. . . .

			4.	That in 1994, Florence M. Cook discovered that  she had a form of cancer, and began receiving medical treatment

for this disease.  Doctors told her in November, 1994 that she

had 8 months to live.

			5.	Prior to being diagnosed with terminal cancer, Florence had not contacted an attorney with regard to changing

her 1976 will or discussing estate planning.  Daughter arranged

for her Mother to meet with Attorney Marvin Coffey.  These

arrangements were made following the diagnosis of terminal

cancer.  Husband did not accompany Florence to the Attorney's office, and was not present during any of her conversations with

Mr. Coffey.

			6.	[O]n February 21, 1995, Florence met with Attorney Coffey and executed an Irrevocable Trust Agreement

. . . .  She made no change to her will.

			7.	In the Trust, Florence M. Cook left Husband a life estate in her marital residence, a life estate in all household

goods and personal property utilized at the marital residence,

and the sum of Twenty Four Thousand Five Hundred Dollars

($24,500.00) to be paid upon her death.  Bonnie L. Dunnewind 

and John T. Dunnewind, Florence's children of a prior marriage,

are the remaindermen.

			. . . .

			9.	That Trust did not give Florence any rights to income from the trust.

			10.	After the execution of the Trust, Daughter continued to pay all trust income to Florence, and testified that

she would have continued to pay Florence all income from the

trust for the rest of her life.

		11.	Florence's purpose in establishing the Trust was to assure that her real estate and most of her other assets would go to her

children.  This was her stated desire.

			12.	Following the execution of Trust on February 21, 1995, there was no change in the way Florence's business affairs

were handled.  Husband was told a trust had been made, but was

not informed of its terms.  He did not ask to be informed of its

terms.

			. . . .

			14.	Following the transfer of assets into the trust, there was no change in the management of Florence's business or

financial affairs.  There is no evidence that the Trust was needed

to assist Florence with any management of her business or

financial affairs, and no such assistance was given.

			15.	The sole purpose of Florence executing the Trust, and transferring her assets to the Trust was to prevent Husband

from effectively exercising his statutory right as a subsequent

surviving spouse to the assets of Florence Cook.

R. at 159-62.  The trial court then made the following conclusions:

			1.	The sole purpose of the Florence Cook Irrevocable Trust was to avoid the effective election by Thomas Cook of his

statutory right as a subsequent childless spouse.

			2.	The Trust . . . served no purpose other than the avoidance of Husband's statutory share.

R. at 162-63.

	In an election against a will the surviving spouse has the right to take a statutory share

of the deceased spouse's real and personal property.  Ind. Code § 29-1-3-1.  However, only

property that passes under the laws of descent and distribution may be reached by a spouse

taking against a will.  Id.; Leazenby v. Clinton County Bank & Trust Co., 171 Ind. App. 243, 355 N.E.2d 861, 863 (1976).  A valid inter vivos trust does not pass under the laws of descent and distribution and thus does not become part of the decedent's probate estate.  Leazenby, 355 N.E.2d at 863 (emphasis added).  In such a case, "there is no right in the surviving

spouse to any of the assets of that trust to satisfy an elected distributive share at the settlor's

death."  Id. aat  at 864.

	There are exceptions to the general rule that a trust agreement can defeat a spouse's

elective share.  Our supreme court addressed such a situation in Walker v. Lawson, 526 N.E.2d 968 (Ind. 1988).  The testator, Sybille Willard, consulted with Lawson for legal

advice as to the disposition of her estate after discovering she had cancer.  In contemplation

of her imminent death, Sybille requested Lawson to establish a trust for the purpose of

depriving her husband of any interest in her estate.  Lawson prepared a will providing that

Sybille's entire estate pass in trust for the benefit of her sons.  Lawson's sonSybilles's sons later sued

LAsawson alleging he should have created another means to dispose of her property so that Sybileles';e's spouse could not exercise his right to an elective hsshare.after her spThe Court held that under

the law enunciated in Crawfordsville Trust Co. v. Ramsey, 55 Ind.App. 40, 100 N.E. 1049 (1913), reh'g denied, 55 Ind.App. 75, 102 N.E. 282 (1913), Lawson could not devise a means to defeat Sybille's spouse's elective share as it would be in contemplation of her death.  Walker, 526 N.E.2d at 969.

	The facts in Crawfordsville Trust Co. v. Ramsey, upon which the Walker court relied, are as follows:  the husband, Alexander Ramsey, knew he was dying and had a short time to

live.  100 N.E. at 1052.  In anticipation of his demise, Ramsey sought to deprive his wife of

her interest in various stocks and bonds by assigning them in lieu of bequeathing them in his

will.  Id. at 1054.  However, the assignments were subject to the same conditions and management as set out in the will.  Id. at 1055.  The court found that Ramsey made the assignments in expectation of his death, were conditioned upon his death, and would not have been made had he not been

suffering from a disease of which he expected to die.  Id. at 1056.  Given such facts, the court characterized Ramsey's assignments as gift causa mortis2 rather than a valid inter vivos gift. 3 Id. at 1061.

	  The court also found the stocks and bonds were originally given as gifts in Ramsey's will but changed to assignments for the purpose of defeating his spouse's interest.  Crawfordsville, 100 N.E. at 1061.   Further, Ramsey retained income from the property given during his life.  Id.   Thus, the court also characterized the assignments as testemtamentary4 in effect.  Id.nanthe assignments to be testamentary in effect because the stocks

and bonds were originally given as gifts in Ramsey's will but changed to assignments for the

purpose of defeating his spouse's interest.  Crawfordsville, 100 N.E. at 1061.  Further, Ramsey retained income from the property given during his life.  Id.

	Given the facts and surrounding circumstances and conditions found in Crawfordsvillethis case, the court stated that whether the gift be held to be a gift causa mortis or testamentary in effect, it will not operate to defeat the spouse's interest in the property.  Id.  The court in Crawfordsville on rehearing thus held:

		The opinion expressly recognizes the general rule to be that a

man, during life, may dispose of his personal property as he

pleases, and that his wife or his widow will have no interest in

the property so disposed of.  It is the exceptional facts and

features  of the present case that prevents the application of such

general rule, and we do not think that "modern business" will

very frequently have to do with gifts made in extremis by a

donor who gives because he knows and fully realizes that he is

afflicted with a disease from which he cannot recover, the gift

being conditioned on the event of his death, and with an express

reservation of the use of the property given during his life, and

changed from a gift by will in the first instance to one by

assignment, because the donor after making his will learns that

his widow may defeat the gift to the extent of her one-third

interest therein, and to prevent such result makes an assignment

of the property so willed.

Crawfordsville, 102 N.E. at 2893.  Thus, it is apparent that a valid inter vivos trust, like that found in Leazenby, may withstand a spouse's election while a gift causa mortis or an invalid inter vivos trust, such as one which is testamentary in effect, will not.  

	The Dunnewinds' contention that the trial court erred in finding the Decedent

established the trust solely to defeat Cook's right to his statutory share in the estate amounts

to an invitation for this court to reweigh evidence.  We decline.  Furthermore, we decline to reverse the trial court order.  The evidence presented at

the hearing supports the trial court's findings that the Decedent executed the trust in

contemplation of her impending death and did so to defeat Cook's statutory share.  The

evidence shows that the Decedent sought estate planning assistance only after discovering

she was terminally ill and did not have long to live.   hThe Decedent stated that she wanted her

childre tn to receive her property.  Her attorney advised her to execute a trust rather than

updating her will.  It can be assumed that the Decedent heeded this advice for the purpose

of defeating her spouse's share. established her trust for the stated purpose of assuring her property would go to her children. 

The Decedent did so only after discovering she was terminally ill

and did not have long to live. Lastly, to insure that the Decedent's property would be left to her

children, her attorney advised her to execute a trust rather than updating her will.  It

can be assumed that the Decedent heeded this advice for the purpose of defeating her

spouse's share.  Given such circumstances, thewe cannot sayfind the trial court erred in finding that the Decedent executed the trust in contemplation of her impending death and did so to defeat

Cook's statutory share.  The trust thereby fails to defeat the

spouse's share given the law announced in Crawfordsville and Walker. 

	 We also note that the trust failed to provide the Decedent with any income oras well as the right to

reside in her own home.  The lack of such provisions implyingies.  These facts implyy This implyingies that neither the trust's

beneficiaries nor the Decedent intended the gifts to take effect until the Decedent's death. 

TheseSuch facts give the trust a testamentary character thereby failing to defeat the spouse's share

under Leazenby.  See Leazenby, 355 N.E.2d at 865 ("The legal or equitable duty as defined by the legislation granting an elective share is construed by this court to proscribe only

dispositions of a testamentary character which disinherit a surviving spouse."). 

	 Finally, the trial court's conclusion entered on the findings sufficiently justifies its

order that the assets remaining in the trust be subject to Cook's election to take against the

Decedent's will as though the trust assets were assets of the probate estate of the Decedent. 

	Judgment affirmed.

SHARPNACK, C.J., and GARRARD, J., concur.