Opinion
NO. 2012-CA-000265-MR
02-08-2013
KELLY JANE BONTA, as Co-Executrice of the ESTATE OF PAUL EDWARD HURST and JEANNE LYNN GUESS, as Co-Executrice of the ESTATE OF PAUL EDWARD HURST APPELLANTS v. BRANDON HURST and KRISTEN HURST APPELLEES
BRIEF FOR APPELLANTS: Theodore B. Walter, Sr. Heather Pack Howell Lexington, Kentucky BRIEF FOR APPELLEES: Richard F. Dawahare Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 11-CI-04233
OPINION
REVERSING AND REMANDING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: This is an appeal from a judgment of the Fayette Circuit Court in an action to construe the will of Paul Edward Hurst. The circuit court concluded that the will did not unambiguously manifest an intention that beneficiaries survive the testator in order to inherit. Consequently, the court invoked provisions of what are commonly known as our anti-lapse statutes and ordered that Hurst's estate be distributed in accordance with those provisions. Following our review, we reverse.
When Hurst executed his simple will on April 11, 1986, his three children were living. The will left his estate to "my children, PHILLIP DEWAYNE HURST, JEANNE LYNN GUESS, and KELLY JANE BONTA or the survivor or survivors to be divided equally among my said children or the survivor or survivors."
At the time of Hurst's death on June 7, 2011, his son, Phillip, had predeceased him. Hurst's daughters, Guess and Bonta, the appellants in this case, were the only named beneficiaries still living. Hurst's will was admitted to probate on June 22, 2011, and the appellants were appointed co-executrixes of their father's estate.
On August 17, 2011, appellees, Brandon Hurst and Kristen Hurst, the children of Phillip Hurst and grandchildren of the decedent, filed a complaint for declaratory judgment in Fayette Circuit Court. They claimed that they were entitled to their father's share of the estate pursuant to Kentucky's anti-lapse statutes, Kentucky Revised Statutes (KRS) 394.400 and KRS 394.410. The testator's daughters answered and asserted that the plain language of the will prevented the invocation or application of the anti-lapse provisions; they contended that they were the sole beneficiaries of the estate.
The matter was heard by the court, and an order was entered on January 31, 2012. The court concluded that the language used in Hurst's will did not manifest an intent contrary to the anti-lapse statutes and awarded the grandchildren one-third of the decedent's net estate. This appeal followed.
On appeal, the testator's daughters, Bonta and Guess, contend that the trial court erred by concluding that their niece and nephew were entitled to a share of Hurst's estate. They contend that the testator expressly intended that only those of his children that survived him would inherit and that the provisions of the anti-lapse statutes are inapplicable.
We review a judgment involving the construction of a will de novo. Hammons v. Hammons, 327 S.W.3d 444 (Ky. 2010). We review the judgment without deference to the determination of the trial court. In a will construction matter, our primary duty is to ascertain and give effect to the testator's intent. Id. In this case, we must examine Hurst's will in relation to our anti-lapse statutes.
As we recently noted in McGowan v. Bogle, 331 S.W.3d 642 (Ky. App. 2011), prior to the enactment of the anti-lapse statutes, when a named beneficiary predeceased the testator, the bequest or devise lapsed and generally passed according to the residuary clause, if there was one, or according to our laws of intestacy. Since it is presumed that a testator does not intend to die intestate with respect to any of his property, the General Assembly enacted into law the presumption that a testator would want the descendants of a predeceased beneficiary to inherit the beneficiary's share rather than have the devise or bequest lapse. This presumption is embodied in our anti-lapse statutes.
KRS 394.400 provides as follows:
If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will. (Emphasis added.)
KRS 394.410 pertains to a devise that is made to several persons as a class and reiterates the provisions of KRS 394.400. It provides as follows:
(1) When a devise is made to several as a class or as tenants in common, and one (1) or more of the devisees die before the testator, and another or others survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devisor. (Emphasis added.)
Pursuant to these provisions, when a beneficiary predeceases the testator and leaves issue who survive the testator, the statutes create "a rebuttable presumption that the surviving issue was meant to be substituted in the will for its ancestor." McGowan, 331 S.W.3d at 645, citing Blevins v. Moran, 12 S.W.3d 698, 702 (Ky.App. 2000). The presumption created by the statutes is expressly inapplicable where "a different disposition is made by the devisor." KRS 394.400, KRS 394.410. The statutes presuming a particular disposition are to be invoked only where the testator's intent is unclear.
In this case, the testator's daughters argue that their father's intent is clear on the face of the will. They contend that the bequest to "my children, PHILLIP DEWAYNE HURST, JEANNE LYNN GUESS, and KELLY JANE BONTA or the survivor or survivors . . ." indicates that their father contemplated the possibility that one of them would predecease him and expressly provided for that contingency by having the estate distributed to the survivor or survivors of the limited class of his children alone. Because there was no risk that the bequest would lapse if any of the siblings survived their father, they contend that the anti-lapse statutes are inapplicable. We agree.
Hurst's intent can be ascertained from the clear and unambiguous language of his will. He designated his beneficiaries specifically by name and included words of survivorship relating only to them. The language used manifests an intent to dispose of his estate contrary to the disposition presumed by the provisions of the anti-lapse statutes - as was his prerogative (and as recognized by the statutes at issue). Accordingly, we conclude that the trial court erred when it ordered Hurst's estate to be distributed in accordance with the provisions of KRS 394.400 and KRS 394.410, resulting in a distribution to his grandchildren of a share of the bequest reserved expressly and exclusively for his surviving children.
We reverse the judgment of the Fayette Circuit Court and remand for entry of a judgment conforming to this opinion.
CLAYTON, JUDGE, CONCURS.
NICKELL, JUDGE, DISSENTS BY SEPARATE OPINION.
NICKELL, JUDGE, DISSENTING: I respectfully dissent from the majority opinion. I agree with the trial court's determination - the "Testator's language is less than perfect." The anti-lapse provisions of KRS 394.400 and KRS 394.410 create a statutory presumption subject only to a testator's clear and unequivocal requirement of "a different disposition." Here, the testator's imprecise and muddled language fails to explicitly and indisputably impose the requirement of "a different disposition," and I would therefore affirm the trial court's application of Kentucky's anti-lapse statutory provisions and its ruling that the appellees are entitled to their pre-deceased father's share of the testator's estate. BRIEF FOR APPELLANTS: Theodore B. Walter, Sr.
Heather Pack Howell
Lexington, Kentucky
BRIEF FOR APPELLEES: Richard F. Dawahare
Lexington, Kentucky