Opinion
NO. 2012-CA-000039-MR
12-14-2012
JEAN E. DAVIS APPELLANT v. MARY H. CRAFTON; KEITH CHANDLER; DARRELL ALAN CHANDLER; AND LISA LEEK APPELLEES
BRIEFS FOR APPELLANT: Kaelin G. Reed Lebanon, Kentucky BRIEF FOR APPELLEE: Rodger G. Cox Campbellsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 11-CI-00333
OPINION
AFFIRMING
BEFORE: CLAYTON, KELLER AND MAZE, JUDGES. KELLER, JUDGE: Jean E. Davis (Davis) appeals from an order of the Taylor Circuit Court granting summary judgment in favor of the Appellees. For the following reasons, we affirm.
FACTS
The following facts are not in dispute. At the time of his death on May 23, 1992, John Shelby Chandler, Sr. (Chandler) owned a house in Campbellsville, Kentucky. His will left the house in trust for the benefit of three of his children, Annette Chandler, John Shelby Chandler, Jr., and Jerome Buckner Chandler "for so long as any of them have need for a place to live or for so long as it is feasible in the judgment of my Trustees for any of them to live there." The will further provided that:
When, in the judgment of my Trustees, it is no longer feasible for any of the beneficiaries of the trust to continue to live in said residence, or when my daughter and two sons no longer desire to live in said residence, my hereinafter named Trustees shall have the right, in their discretion, to terminate this trust without the necessity of gaining the permission of any court. Upon the termination of this trust by my hereinafter named trustees or their successors, the title for said real estate shall immediately vest in my following children, namely: Jean Elizabeth Davis, Larry V. Chandler, Annette Chandler, Robert Hugh Chandler and Jerome Buckner Chandler, (excluding my son, John Shelby Chandler, Jr.) . . . .(Emphasis added).
Following the death of all five of her siblings, Davis, in her capacity as Trustee, filed a Verified Notice of Termination of the John Shelby Chandler, Sr. Testamentary Trust in the Taylor District Court on March 8, 2011. On July 18, 2011, Davis filed a complaint against the Appellees seeking to quiet title to the house. The Appellees are the grandchildren and great grandchildren of Chandler.
Both parties subsequently filed motions for summary judgment. Davis argued that the gift was contingent on the named persons surviving the termination of the trust. After holding a hearing, the trial court entered an order on December 21, 2011, granting summary judgment in favor of the Appellees. In its order, the trial court concluded that "the statement 'title . . . shall immediately vest' means fee simple title in the five children would vest at the termination of the trust[,]" and that "[t]here were no contingencies or survivorship or class provisions in the relevant will clause." This appeal followed.
STANDARD OF REVIEW
As set forth in Hammons v. Hammons, 327 S.W.3d 444, 448 (Ky. 2010):
The proper standard of review on appeal when a trial judge has granted a motion for summary judgment is whether the record, when examined in its entirety, shows there is "no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." The trial judge must view the evidence in a light most favorable to the nonmoving party, resolving all doubts in its favor. Because summary judgment does not require findings of fact but only an examination of the record to determine whether material issues of fact exist, we generally review the grant of summary judgment without deference to either the trial court's assessment of the record or its legal conclusions. Furthermore, it is well established that "[t]he construction as well as the meaning and legal effect of a written instrument . . . is a matter of law for the court." In such cases, this Court reviews the issue de novo.(Citations omitted).
ANALYSIS
The issue on appeal is whether Chandler intended a contingent remainder or a vested remainder. As set forth in Hammons:
The "polar star rule" of wills construction provides that the intention of the testator, if not contrary to the law, controls. The testator's intention is derived from considering the will as a whole and no single part may be separated and held up as evidence of the testator's intent. Thus, a court's primary duty is to ascertain and give effect to the testator's intent.
. . . .
Whether a testator intended a contingent remainder or a vested remainder is a relatively common question and our case law includes many opinions distinguishing these two types of remainders. Conlee, 190 S.W.2d at 47 ("The mere fact that an estate is to take effect and be enjoyed after the termination of an intervening estate will not prevent both estates from being vested at the same moment."); Montgomery's Ex'r v. Northcutt, 292 Ky. 622, 167 S.W.2d 317, 320 (1942) ("A remainder interest may be a vested one although the right of possession and enjoyment of the property is made to depend on some uncertain future event."); Fidelity & Columbia Trust Co. v. Tiffany, 202 Ky. 618, 260 S.W. 357, 359 (1924) ("A vested interest is a present right . . . which carries with it an existing right of alienation, even though the right to possession or enjoyment may be postponed to some uncertain time in the future . . . . A contingent estate is one which gives no present right, but the vesting of which depends upon some uncertain event in the future, or the happening of a certain event in the future at an uncertain time . . . ."); Williamson v. Williamson, 57 Ky. 329, 18 B. Mon. 329 (1857) ("A vested remainder depends upon an event which must happen. A contingent remainder depends on an event which is uncertain and may never happen. A vested remainder is to a person in esse and ascertained. A contingent remainder is to a person not in esse or not ascertained.") . . . .327 S.W.3d at 448-49.
In this case, the language "Upon the termination of this trust . . . the title for said real estate shall immediately vest in my following children, . . . ." means the five named children had a vested remainder interest in the house when the trust was created. Their interest in the house was not contingent because the trust would, at some point, terminate. Id. Contrary to Davis's assertion, the provision does not require the named children to survive the termination of the trust. Instead, the language provides that title to the house "shall immediately vest" upon termination of the trust. This language sets forth when the named children will become titled owners of the house, not when their interest in the house arose. Thus, we conclude that the trial court did not err in concluding that fee simple title vested in the five named children at the termination of the trust.
Having reached this conclusion, we note that the parties do not otherwise dispute how the trial court divided the parties' interests in the house. Thus, we do not address the court's division of those interests.
CONCLUSION
For the foregoing reasons, we affirm the order of the Taylor Circuit Court granting summary judgment in favor of the Appellees.
ALL CONCUR. BRIEFS FOR APPELLANT: Kaelin G. Reed
Lebanon, Kentucky
BRIEF FOR APPELLEE: Rodger G. Cox
Campbellsville, Kentucky