Opinion
NO. 2016-CA-001784-MR
04-27-2018
DEANNA BRUNER-MARSHALL APPELLANT v. SAM ARNOLD AS ADMINISTRATOR OF THE ESTATE OF BOBBY BRUNER, AND DAVID PUGH, BOBBY JO BRUNER, JEFF BRUNER, JOHN PUGH, AMBERLEE NICHOLE BRUNER, AND LARRY BRUNER APPELLEE
BRIEF FOR APPELLANT: James Paul Brannon Paris, Kentucky BRIEF FOR APPELLEE: Sam W. Arnold, III Cynthiana, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARRISON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 16-CI-00099 OPINION
AFFIRMING
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BEFORE: ACREE, COMBS AND MAZE, JUDGES. COMBS, JUDGE: Deanna Bruner-Marshall appeals from an order of the Harrison Circuit Court granting summary judgment in favor of Sam W. Arnold, III, Administrator of the Estate of Bobby Bruner, and upholding the admission of Bruner's will to probate. The question presented is whether the will admitted to probate (or any of its provisions) had been revoked before the testator's death. We affirm.
On February 18, 2002, Bruner signed a will, typewritten on five sheets of paper. His signature was attested by two subscribing witnesses and a notary public. Possession of the instrument was given to Judge Jay Delaney, the attorney who prepared it. Bruner retained a copy of the will. No question is raised regarding Bruner's capacity or the due execution of the instrument.
The instrument, as probated, included the following relevant provisions:
ARTICLE III
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b. To my step-son, David Pugh, if he shall survive me, five (5) acres of property, more or less, where he currently maintains a residence on the North side of Hinton-Weber road [sic] in Harrison County, Kentucky. . . . I also devise to David Pugh approximately 10 acres of property located on the South side of Hinton-Weber Road, directly across the road from the above property and being all of my property on the South side of Hinton-Webber [sic] road [sic]. . . .
c. To my daughter, Bobbie Jo Bruner, if she shall survive me, the exclusive right to have the use of five (5) acres, more or less where her trailer is currently located on the north side of Hinton-Weber road [sic], during her lifetime and as long
as she maintains the property as her principal residence. Should she cease to maintain this as her principal residence, or upon her death, I devise said property in fee and in equal shares to my sons, David Pugh and John Pugh. . . .
d. To my step-son, John Pugh, if he shall survive me, five (5) acres, more or less, of my property on the north side on Hinton-Weber Road. . . .
e. The remainder of my property located on the North side of Hinton-Weber Road which I may own at the time of my death . . . I devise in fee and in equal shares to my step-sons, David Pugh and John Pugh.
f. In order to facilitate the above devises regarding my property on the north [sic] Side [sic] of Hinton-Weber Road, I direct my executor to cause a survey to be made of the property. . . .
ARTICLE IV
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a. To David Pugh, all of my farm equipment and tools and my twenty-two (22) caliber single shot rifle.
b. To John Pugh, my 30-30 Parker Muzzle Loader, Revelation 20 gauge pump shotgun, antique china cabinet and toy dishes.
c. To my son, Jeff Bruner, a ceramic cat and ceramic horse which are currently located in my residence. Jeff also has a gun cabinet which he built when he was in high school that is located in my residence. This gun cabinet should be returned to him.
d. To my granddaughter, Niki Bruner, all on the contents of my residence that are not otherwise disposed of by this will, including, but not limited to, my 410 single shot shotgun and 25 caliber pistol.
e. To my daughter, Deanna Jackson, one thousand ($1,000) dollars.
f. To my son, Larry Bruner, one thousand ($1,000) dollars.
ARTICLE V
All the rest, reside and remainder of the property which I may own at the time of my death . . . including all lapsed legacies, devises or other gifts made by this will which fail for any reason, I bequeath and devise in fee to my granddaughter, Niki Bruner.
Bruner died on March 20, 2016. Judge Delaney promptly deposited Bruner's will with the Harrison Circuit Clerk's office.
On April 4, 2016, Arnold appeared before the Harrison District Court seeking to probate the instrument as Bruner's last will and testament. A hearing was conducted before the court, and after an examination of the instrument, it was admitted to probate. Arnold was appointed administrator of the estate.
On May 16, 2016, Bruner-Marshall, the testator's daughter, filed a complaint in Harrison Circuit Court. She named as defendants Sam Arnold, David Pugh, Bobby Jo Bruner, Jeff Bruner, John Pugh, Amberlee Nichole Bruner, and Larry Bruner. In her complaint, Bruner-Marshall alleged that the testator had renounced certain provisions of the purported will admitted to probate; that the instrument failed to dispose of his estate "in a manner consistent with the natural objects of his bounty"; and that the testator had disclosed to his next of kin that the purported will was "NOT his intent and preference and made written instructions so indicating his intent." Bruner-Marshall sought to have the order admitting the will to probate set aside.
On August 24, 2016, Arnold filed a motion for summary judgment. He argued that Bruner's will had been in the possession of Judge Delaney from the date of its execution until it was tendered to the Harrison Circuit Court for probate shortly following Bruner's death. He contended that no subsequent will, codicil, or writing declaring an intention to revoke the will existed and that the will should be probated pursuant to the provisions of KRS 394.340.
Kentucky Revised Statutes.
On August 29, 2016, the copy of Bruner's will that had been retained by the testator was filed with the circuit court. The following relevant alterations had been made on the face of the will (apparently in the hand of the testator): ARTICLE III, b. (set out above) was circled in ink and the word "out" was written in ink in the margin; the portion of ARTICLE III, c. (set out above) devising the property left to Bobbie Jo Bruner or to David Pugh and John Pugh should Bobbie Jo Bruner fail to survive the testator was delineated in ink and the words "go to Nikki" was written in ink in the margin; the remainder portions of ARTICLE III, c.; d.; and e. (set out above) were circled in ink and the word "out" was written in ink in the margin. ARTICLE III, f. (set out above) was circled in ink and the word "out" was written in ink in the margin; ARTICLE IV, a. (set out above) was circled in ink and the words "out" and "To Niki" were written in ink in the margin; ARTICLE IV, b. (set out above) was circled in ink and the words "out" and "To Niki" were written in ink in the margin. Other alterations appeared on the document written in a different hand and in different ink.
On August 30, 2016, Arnold filed a supplemental memorandum to his motion for summary judgment. Arnold argued that the will had not been effectively revoked pursuant to the provisions of KRS 394.080, which authorize revocation by the testator or at his direction through "cutting, tearing, burning, obliterating, canceling, or destroying the will
On September 20, 2016, Bruner-Marshall filed a memorandum in opposition to the motion for summary judgment. She argued that genuine issues of material fact concerning the testator's intent prevented entry of summary judgment. She also contended that the will admitted to probate had been revoked, in whole or in part, through cancellation. Finally, Bruner-Marshall contended that the decedent had executed a subsequent will in the summer of 2009 and that the testator had told his sister that he had left his entire estate to Bruner-Marshall alone. However, there is no indication of record that any person read the provisions of the alleged lost will.
Through its order entered November 2, 2016, the Harrison Circuit Court granted summary judgment to Arnold, the administrator of the estate, in favor of the entirety of the 2002 will admitted to probate. The circuit court did not address Bruner-Marshall's claim concerning the alleged lost will executed by the testator in 2009. However, it granted a final judgment with respect to the 2002 will and certified to this Court that there was no just cause for delay. This timely appeal followed.
On appeal, Bruner-Marshall argues that the circuit court erred by concluding that the administrator of the decedent's estate was entitled to judgment as a matter of law. She contends that the testator revoked provisions of his 2002 will by canceling them. She argues that the testator had the intent to revoke and that he undertook to cancel the part of the will that he circled with ink and commented upon by way of marginal notes.
KRS 394.080 provides that no will, or any part thereof, shall be revoked except:
(1) By subsequent will or codicil;
(2) By some writing declaring an intention to revoke the will or codicil, and executed in the manner in which a will is required to be executed; or
(3) By the person who made the will, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the will or codicil, or the signature thereto, with the intent to revoke.This statute is a substantial re-enactment of the English Statute of Frauds (St. 29 Car. II. c. 3, § 6) passed by Parliament in 1677. See Sanders' Adm'r v. Babbitt, 106 Ky. 646, 51 S.W. 163, 163-64 (1899). It has been consistently construed to require for revocation of a will (or any of its provisions) cancellation marks or lines across the written parts of the instrument, or a physical defacement, or some mutilation of the writing itself -- with the intent to revoke. See Stuart v. McWhorter, 238 Ky. 82, 36 S.W.2d 842 (1931); Tudor v. Tudor, 56 Ky. 383, 17 B.Mon. 383 (1856); Conley v. Brewer, 666 S.W.2d 751 (Ky. App. 1983). "If written words are used for the purpose, they must be so placed as to physically affect the written portion of the will, not merely on blank parts of the paper on which the will is written." Thompson v. Royall, 175 S.E 748, 750, 163 Va. 492 (1934).
The testator's marks did not physically affect the typewritten portions of the will at issue in this case. Because the testator did not effectively revoke any portion of the will pursuant to any of the methods set forth by KRS 394.080, his intention with respect to his alterations is not relevant. The purported changes fail to satisfy the mandatory statutory criteria.
Next, Bruner-Marshall argues that the trial court erred by failing to address her claim that a 2009 lost will should be admitted to probate. We disagree.
CR 54.02 allows a trial court dealing with multiple claims in a single action to grant a final judgment as to fewer than all the claims upon a determination that there is no just cause for delay. That rule provides as follows:
Kentucky Rules of Civil Procedure. --------
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may grant a final judgment upon one or more but less than all of the claims or parties only upon a determination that there is no just reason for delay. The judgment shall recite such determination and shall recite that the judgment is final.
The trial court used this procedural device in granting a final judgment in favor of Arnold, the administrator of the decedent's estate, with respect to Bruner-Marshall's claim that the 2002 will had been revoked (in whole or in part) by cancellation, leaving for a later decision her claim that a 2009 lost will could be probated. The trial court had the power under the provisions of CR 54.02 to grant a final judgment on fewer than all the claims and to certify to this Court that there was no just cause for delay. Bruner-Marshall's claim with respect to a lost will remains to be decided.
Based upon the foregoing, the judgment of the Harrison Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James Paul Brannon
Paris, Kentucky BRIEF FOR APPELLEE: Sam W. Arnold, III
Cynthiana, Kentucky