MARGARET EVERSOLE EDWARDS v. HARKNESS EDWARDS, III, Individually, and in his Capacity as Administrator of the Estate of Harkness Edwards, Jr.
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RENDERED:
March 27, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1895-MR
MARGARET EVERSOLE EDWARDS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY D. PAYNE, JUDGE
ACTION NO. 96-CI-001102
v.
HARKNESS EDWARDS, III, Individually,
and in his Capacity as Administrator
of the Estate of Harkness Edwards, Jr.
APPELLEE
OPINION
AFFIRMING
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BEFORE:
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EMBERTON, GUIDUGLI, and MILLER, Judges.
MILLER, JUDGE:
Margaret Eversole Edwards brings this appeal from
a June 25, 1996 summary judgment of the Fayette Circuit Court.
We affirm.
The facts are these:
On June 3, 1995, Harkness Ed-
wards, Jr. (decedent), died testate in Fayette County, Kentucky.
His Last Will and Testament (will) was probated in the Fayette
District Court, Probate Division, on June 29, 1995.
the widow of the decedent.
Appellant is
The will made certain provisions for
appellant and the testator's surviving children from an earlier
marriage, namely Harkness Edwards, III (appellee), Hunt Edwards,
and Lela Humes Cason.
As part of the administration of the
estate, appellant executed a "Receipt and Release" on September
28, 1995.
That document stated in relevant part as follows:
I, Margaret E. Edwards, widow of
Harkness Edwards, Jr., who died June 3, 1995,
acknowledge that pursuant to Item VI of the
Will of Harkness Edwards, Jr., probated June
29, 1995, I became entitled to all household
furniture and furnishings, automobiles,
books, pictures, jewelry and personal
effects, other than the Richard Edwards cup,
bequeathed to Harkness Edwards, III, by Item
IV of the aforesaid Will . . . .
Now, Therefore, I hereby acknowledge
receipt of the aforementioned properties
appraised by James L. Riley and Dana Motors
Co., at a total value of $351,285.00 . . . .
On December 8, 1995, appellant executed a "Renunciation
of Will (renunciation)."
The renunciation was filed with the
clerk of the district court on December 8, 1995.
Thereafter, the
renunciation was sent to the county clerk's office and recorded
there on December 13, 1995.
On March 29, 1996, appellee, as
administrator of decedent's estate, initiated in the Fayette
Circuit Court a declaratory judgment proceeding.
Therein he
contended that appellant did not, pursuant to Ky. Rev. Stat.
(KRS) 392.080), validly and effectively renounce her right to
take under the decedent's will.
Thereafter, appellant and
appellee filed motions for summary judgment.
On June 17, 1996,
the circuit court entered an "Opinion and Order" granting
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appellee's motion for summary judgment.
Therein, the court
determined:
Counsel for all parties agree that KRS
392.020 is the successor to Section 1404 of
the Kentucky Revised [sic] Statutes. Counsel
for the Defendant has cited several cases
that were decided around the turn of the
century and dealt with Section 1404 of the
statutes and its application at the time.
The court has reviewed the authority cited by
the Plaintiffs' [sic] and finds that the
Kentucky Supreme Court case of Hannah v.
Hannah, 824 S.W.2d 866 (1992), a unanimous
decision of the Court, correctly disposes of
the issues pending before this Court.
This Court specifically finds that the
statutory language of Section 1404 was
changed substantively and effectually by the
implementation of KRS 392.020 and other
statutes under Chapter 392. Therefore, any
decisions relative to Section 1404 have
limited application to cases decided under
the current statute.
This Court finds that (1) the acceptance
of the personalty and (2) the execution of
the "Receipt and Release" constituted an
election by Ms. Edwards to take under the
will. Ms. Edwards could have decided to
return that personalty, within the statutory
six months, and then elected to renounce,
pursuant to this statute. She did not choose
that course of action and it is now too late
for her to effectively make that election.
On June 25, 1996, the circuit court entered summary
judgment in favor of appellee.
This appeal followed.
Summary judgment is proper only when there exists no
material issue of fact and the movant is entitled to judgment as
a matter of law.
See Steelvest, Inc. v. Scansteel Serv. Center,
Inc., Ky., 807 S.W.2d 476 (1991).
In the case sub judice, we
perceive no issue of fact but only a question of law.
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Appellant contends it was reversible error for the
circuit court to conclude that (1) she, in fact, elected to take
under the decedent's will and, alternatively, if she did so
elect, (2) such election, as a matter of law, barred her from
renouncing the will.
As to appellant's first issue, we believe
the clear terms of the Receipt and Release, executed by
appellant, speak for themselves.
Therein, appellant acknowledged
receipt of certain property to which she became entitled under
the terms of decedent's will.
We believe the Receipt and Release
evinces appellant's election to take under her husband's will.
We now address appellant's second contention--that even
if she elected to take under the will, the court erred in
concluding that she was barred from nevertheless renouncing her
husband's will pursuant to KRS 392.080.
In support thereof,
appellant relies upon Williams v. Williams, 161 Ky. 55, 170 S.W.
490 (1914); Brown's Ex'r v. Brown, 22 Ky. 840, 58 S.W. 993
(1900); McCallister v. Brand's Heirs, 50 Ky. (11 B.Mon) 370
(1850) (collectively holding that a widow may elect to take under
her deceased husband's will and thereafter, within statutory
period, nonetheless effectively renounce said will).
Upon review
of these cases, it is apparent they were based upon Kentucky
Statutes (Ky. St.) §1404, the predecessor of KRS 392.080.
We
think resolution of this issue revolves around the interpretation
of these two statutes.
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Ky. St. §1404 (relating only to renunciation by a
widow) was enacted in 1893 and stated in relevant part as follows:
Renunciation of will by widow; when and how
made; effect of.--When a widow claims her
dowable and distributable share of her
husband's estate, she shall be charged with
the value of any devise or bequest to her by
his will; or she may, though under full age,
relinquish what is given her by the will, and
thereupon receive her dower and distributable
share as if no will had been made [emphasis
added] . . . .
For purposes of this appeal, the pivotal language in
Ky. St. §1404 was as follows: "When a widow claims her dowable
and distributable share of her husband's estate, she shall be
charged with the value of any devise or bequest to her by his
will (emphasis added)."
Utilizing that language, the courts of
this Commonwealth interpreted Ky. St. §1404 as enabling a "widow"
to effectively renounce her deceased husband's will even though
she had previously elected to take under it by simply offsetting
the value of the devise or bequeath against her statutory share.
See Williams, supra, Brown's Ex'r, supra, and McCallister, supra.
In sum, under Ky. St. §1404, a "widow" had an unconditional right
of revocation during the statutory 12-month period,
notwithstanding a prior election to take under the will.
The successor to Ky. St. §1404 was enacted in 1956.
This statute, KRS 392.080 (relating to renunciation by either
spouse) provides in relevant part as follows:
(1) When a husband or wife dies testate, the
surviving spouse may . . . release what is
given to him or her by will, if any, and
receive his or her share under KRS 392.020 as
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if no will had been made . . . . Such
relinquishment shall be made within six (6)
months after the probate . . . .
Conspicuously absent from the above statute is the language in
Ky. St. §1404 enabling a widow to be charged with any devise or
bequeath that she accepted under the will prior to renouncing
said will.
We believe the absence of such language resoundingly
signals a change in the legislative course theretofore enunciated
in Ky. St. §1404.
We are of the opinion that by omitting Section
1404's offsetting language from KRS 392.080, the legislature
intended nothing less than a permutation and modernization of the
law.
The plain and unambiguous language of the statute lends
itself to but one tenable interpretation: a surviving spouse must
either elect to take under the decedent's spouse's will or
renounce the will but cannot, as prior to the KRS 392.080, do
both.
Simply stated, the surviving widow may no longer initially
elect to take under the will and then proceed to renounce it.
In the case sub judice, as hereinbefore stated, we
believe appellant's execution of the Receipt and Release
evidenced her election to take under the decedent's will.
As
such, we are of the opinion that she is precluded from thereafter
attempting to revoke decedent's will pursuant to KRS 392.080.
As to appellant's remaining contentions, we deem them
moot.
For the foregoing reasons, the judgment of the circuit
court is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard A. Getty
Anthony P. Tokarz
Lexington, KY
Thomas W. Miller
Robert S. Miller
Lexington, KY
AMICUS CURIAE BRIEF FOR
JAMES E. HARGROVE and
NEWBERRY, HARGROVE &
RAMBICURE:
Glen S. Bagby
J. Robert Lyons, Jr.
Lexington, KY
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