BARBRA A. HOLLEY, ADMINISTRATRIX OF THE ESTATE OF AGNES MAY AYLOR, DECEASED and BARBRA A. HOLLEY, INDIVIDUALLY AND AS BENEFICIARY OF THE AGNES MAY AYLOR TRUST V. NELSON GOODRIDGE, ADMINISTRATOR WWA OF THE ESTATE OF JEMESON C. AYLOR, DECEASED and NELSON GOODRIDGE and RUTH AYLOR GOODRIDGE, HUSBAND and WIFE, INDIVIDUALLY
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RENDERED:
February 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1644-MR
BARBRA A. HOLLEY, ADMINISTRATRIX
OF THE ESTATE OF AGNES MAY AYLOR,
DECEASED and BARBRA A. HOLLEY,
INDIVIDUALLY AND AS BENEFICIARY OF
THE AGNES MAY AYLOR TRUST
V.
APPELLANTS
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH F. BAMBERGER, JUDGE
ACTION NO. 94-CI-397
NELSON GOODRIDGE, ADMINISTRATOR
WWA OF THE ESTATE OF JEMESON C.
AYLOR, DECEASED and NELSON
GOODRIDGE and RUTH AYLOR
GOODRIDGE, HUSBAND and WIFE,
INDIVIDUALLY
APPELLEES
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
BUCKINGHAM, COMBS and GARDNER, Judges.
GARDNER, JUDGE: Barbra Holley (Holley), as administratrix of Agnes
May Aylor's (Agnes) estate and individually as beneficiary of
Agnes's trust, appeals from an order of the Boone Circuit Court
granting partial summary judgment for the appellees.
The court
concluded that appellees were entitled to one-half of the proceeds
of the sale of a marital residence owned by the decedents in this
case.
After reviewing the record and the applicable law, this
Court affirms.
Agnes
and
Jemeson
married, were married in 1969.
Aylor
(Jemeson),
both
previously
During their marriage, Jemeson and
Agnes resided at 3135 Robin Court in Hebron, Kentucky. On February
2, 1972, Jemeson deeded this property to Agnes and himself jointly
with right of survivorship.
On June 5, 1992, Jemeson and Agnes
executed a contract to purchase a condominium at 5327 Country Club
Lane in Burlington, Kentucky, contingent upon the sale of the
marital residence on Robin Court.
allowed to expire on June 8, 1992.
A counteroffer was made but was
On June 19, 1992, Jemeson and
Agnes executed an exclusive listing contract for the Robin Court
property.
Jemeson's health began to fail, and in September 1992, he
was admitted to a hospital. Following release from the hospital he
resided in a nursing home.
attorney.
Jemeson granted Agnes his power of
On February 26, 1993, Jemeson by and through Agnes, his
attorney-in-fact and Agnes, as husband and wife, conveyed title to
the Robin Court property to purchasers for a sale price of $80,000.
After service charges were deducted, Agnes received a check for
$79,871.92 as proceeds from the sale of the real estate.
Agnes
never deposited these proceeds into a joint account of the Aylors.
The proceeds were deposited into a trust account.1
1
Jemeson died
On November 16, 1992, Agnes executed a trust agreement which
created a life estate for her in all of her property with the
corpus to be distributed to Holley, her daughter from a previous
marriage, at Agnes's death.
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testate on March 2, 1993.
On April 20, 1993, Jemeson's will was
admitted to probate, and Agnes was appointed executrix of his
estate. On June 4, 1993, Agnes closed on the condominium using the
proceeds from the sale of the Robin Court property.
This was the
same condominium that Jemeson and Agnes had attempted to purchase
earlier.
The attorney for Jemeson's estate on June 21, 1993,
prepared and filed an estate inventory which did not list any
proceeds from the sale of the Robin Court property.
Agnes
died
in
January
1994,
settlement regarding Jemeson's estate.
Nelson
Goodridge
(Goodridge)
was
before
filing
a
final
On February 15, 1994,
appointed
administrator
of
Jemeson's estate.2 Goodridge learned that during Agnes's term as
executrix of Jemeson's estate, she had not accounted for $39,936
which represented Jemeson's share of the proceeds from the sale of
the Robin Court property.
On May 5, 1994, appellees filed a
complaint in circuit court seeking in part an accounting for the
proceeds of the sale of the Robin Court property.
and asserted a counterclaim
Holley answered
for inheritance taxes advanced and
executrix fees.
On December 28, 1995, Holley filed a motion for partial
summary judgment.
Appellees filed their own motion for partial
summary judgment on February 2, 1996.
February 13, 1996.
Holley filed a response on
Appellees filed another motion for partial
summary judgment on March 7, 1996.
2
On March 11, 1996, the circuit
On March 7, 1994, Holley was appointed administratrix for
Agnes's estate.
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court granted partial summary judgment for the appellees.
The
court awarded judgment against Holley in the amount of $39,936,
representing Jemeson's share of the proceeds of the sale of the
Robin Court property.
order
modified
paragraph.
the
On March 21, 1996, the circuit court in an
partial
summary
judgment
by
deleting
a
On April 30, 1996, the parties entered into an agreed
judgment resolving the other issues in this case.
Holley has
appealed from the circuit court's order granting partial summary
judgment for the appellees.
On appeal, Holley argues that the proceeds from the sale
of the Robin Court property should in equity be treated as part of
Agnes's
estate.
She
argues
that
the
doctrine
of
equitable
conversion should be applied to give effect to the intention of the
testator.
Specifically, she argues that Jemeson intended for the
proceeds from the sale of the marital residence to go to Agnes and
be used for the purchase of the condominium.
She maintains that
this is evidenced by the 1972 deed which called for a tenancy by
the entirety, and the first contract to purchase the condominium
which was allowed to expire. She argues that Agnes's and Jemeson's
intent
should
prevail
operation of law.
over
what
ordinarily
would
result
by
We disagree and conclude that the circuit court
correctly awarded one-half of the proceeds from the sale of the
marital residence to appellees.
Equitable conversion is not applicable to the case at
bar.
Equitable conversion is a mere fiction
resting upon the principle that equity
-4-
regards things which are directed to be
done as having actually been performed
where nothing has intervened which ought
to prevent such performance, and may be
defined as a constructive alteration in
the nature of property whereby, in
equity, real estate may be considered as
personalty, or vice versa.
Tatman v. Cook's Adm'x., 302 Ky. 529, 195 S.W.2d 72, 74 (1946).
It
is based on the principle that equity will regard as done that
which is directed or ought to be done.
Bitzer v. Moock's Executor
and Trustee, Ky., 271 S.W.2d 877, 879 (1954).
See also Munday v.
Munday, Ky., 687 S.W.2d 143 (1985); 27A Am.Jur.2d Equity ยง116 at
598 (1996).
The doctrine of equitable conversion does not apply
when there is neither an express devise in fee to the executor or
trustee nor any such language in a will as to raise a fee by force
of implication.
Tatman v. Cook's Adm'x., 195 S.W.2d at 74.
See
also Willett v. Willett, 197 Ky. 663, 247 S.W. 739, 741 (1923).
"A tenancy by the entirety is an estate in land shared by
husband and wife, whereby at the death of either the survivor is
entitled to a full fee simple ownership." Sanderson v. Saxon, Ky.,
834 S.W.2d 676, 678 (1992).
Under tenancy by the entirety, the
survivor takes the entire estate at the death of the deceased
cotenant not by virtue of that death, but because by law, each was
considered to own the entire estate from the time of its creation.
Id.
See also Hoffmann v. Newell, 249 Ky. 270, 60 S.W.2d 607, 609
(1932).
Under Kentucky Revised Statute (KRS) 381.050(1), "[i]f
real estate is conveyed or devised to husband and wife, unless a
right by survivorship is expressly provided for, there shall be no
mutual right to the entirety by survivorship between them, but they
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shall take as tenants in common. . . ."
KRS 381.050(2) permits
tenancies by the entirety if the conveyance or devise expressly
creates such a right.
In the instant case, neither tenancy by the entirety nor
the doctrine of equitable conversion apply based upon the facts
presented.
While Jemeson apparently did provide for a tenancy by
the entirety in a 1972 deed for the Robin Court property, this fact
became academic when the property was sold in February 1993 while
both he and Agnes were still alive.
At his death, only the funds
obtained from the sale of the property existed.
These funds are
considered personal property and by law would be divided between
the parties.
Holley has not proven sufficient intent on the part
of Jemeson for equitable conversion to apply.
Jemeson and Agnes
permitted the first contract to purchase the condominium to lapse.
Agnes
did
not
enter
into
another
contract
to
purchase
the
condominium until after Jemeson had died. His will did not mention
anything regarding the matter. The circuit court correctly awarded
one-half of the funds from the sale of the marital residence to
Jemeson's estate. By applying the principles of Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991), and its
progeny, a partial summary judgment was correct on this issue as a
matter of law.3
3
Holley also argues that the inventory filed in Jemeson's
estate is conclusively presumed correct and must be binding on the
successor administrator.
Her argument is misplaced.
Williams'
Adm'r. v. Vonderhaar's Executrix, 262 Ky. 68, 89 S.W.2d 321, 326
(1935), cited by Holley, states that an inventory is prima facie
correct until assailed by an appropriate pleading. In this case,
appellees rebutted and proved that the proceeds from the sale were
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For the foregoing reasons, this Court affirms the order
of the Boone Circuit Court granting partial summary judgment for
the appellees.
BUCKINGHAM, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS WITHOUT SEPARATE OPINION.
incorrectly deposited in a trust fund benefitting Agnes and Holley.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Vesper
Crescent Springs, Kentucky
Terry. R. Edwards
Florence, Kentucky
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