STRATTON (KRISTIE), ET AL. VS. NEWTON (STEVE), ET AL.
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RENDERED: JUNE 11, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001293-MR
KRISTIE STRATTON AND
KRISTIE STRATTON IN HER CAPACITY
AS THE EXECUTRIX OF THE ESTATE OF MARY
EVELYN THURMAN
v.
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 08-CI-00093
STEVE NEWTON, JEFFREY NEWTON,
AND MARTIN THURMAN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON AND CLAYTON, JUDGES; BUCKINGHAM1, SENIOR
JUDGE.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
CAPERTON, JUDGE: The Appellant, Kristie Stratton, appeals the Warren Circuit
Court’s order affirming Steve Newton’s, Jeffrey Newton’s, and Martin Thurman’s
(hereinafter the “Appellees”) petition for declaration of rights and the denial of
Appellant’s summary judgment motion. In said order, the court determined that
the Appellant and Appellees were entitled to a one-fourth interest in the farm land
in question and denied Appellant’s motion for summary judgment. After a
thorough review of the parties’ arguments, the record, and the applicable law, we
find no error and, accordingly, affirm.
The matter came before the Warren Circuit Court after the decedent,
Mary Evelyn Thurman, died testate leaving a holographic will as her Last Will and
Testament. Appellant and the Appellees disagree about one provision in the will,
which states, in pertinent part:
Farm Land the 78+ acres I own across the road from the
33+ acres of bottom land goes to my one niece and three
nephews. The tax bill is to be mailed to Kristie T.
Stratton . . . . She may buy them out the [sic] her three
first cousins for about $7,000 each. Jeff Newton, Steve
Terry Newton, and Martin Wayne Thurman.
The Appellees interpreted the provision to devise the property in fee
to both the Appellees and the Appellant. Appellant asserted that the provision
provided for the land to go to both the Appellees and the Appellant, with the
Appellant having the right to purchase the land, without restriction, for about
$7,000 each. The court then proceeded to interpret the will in light of our
jurisprudence.
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First, the court noted that the sentence, “Farm Land the 78+ acres I
own across the road from the 33+ acres of bottom land goes to my one niece and
three nephews” was not ambiguous. The court determined that the sentence clearly
provides that the decedent left the land at issue to her one niece and three nephews,
who were the parties before the court. The court also concluded that the second
sentence “The tax bill is to be mailed to Kristie T. Stratton . . . .” was not
ambiguous. However, the court determined that the third sentence, “She may buy
them out the [sic] her three first cousins for about $7,000 each” was ambiguous.
The court noted that it could not ascertain what the decedent intended
to do or meant by the third sentence without speculation, for two reasons. First,
the court was unclear as to what price Appellant was to pay because of the phrase
“about $7,000.” Second, the court was perplexed as to the term “may” and
concluded that the decedent’s intent in regard to the third sentence was speculative.
In light of this ambiguity, the court turned to the applicable jurisprudence, and
noted that the law favors the vesting of a fee, citing Webb v. Maynard, 32 S.W.3d
502, 508 (Ky.App. 1999). Moreover, the court noted that:
An estate once given in fee will not be defeated by a
subsequent provision in the same instrument limiting it to
a smaller estate, unless the language of the instrument or
the intention of the testator requires it, and when, upon
the consideration of the whole instrument, the mind is in
doubt as to what estate was intended to pass, that
construction will be adopted which passes the fee.
Clay v. Chorn's Ex'r., 152 Ky. 271, 153 S.W. 425, 426-427 (Ky. 1913)
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Thus, the court denied Appellant’s motion for summary judgment and
concluded that Appellant and the Appellees were each entitled to a one-fourth
interest in the subject devised. Thereafter, Appellant filed a motion to alter,
amend, or vacate pursuant to Kentucky Rules of Civil Procedure (CR) 52.01,
52.03, and 52.04. The trial court denied this motion in its order of June 26, 2009.
It is from these orders that Appellant appeals.
On appeal, Appellant presents two main arguments. First, Appellant
argues that the court did not apply the law correctly when it ordered the clause in
question was ambiguous and should be stricken. Second, the court erred by not
giving additional findings of fact after Appellant asked for them in the motion to
alter, amend, or vacate. With these arguments in mind we turn to our applicable
standard of review.
Wills are interpreted under the same standards as contracts are
interpreted. Accordingly, we shall apply the de novo standard of review to this
case. Mackey v. Hinson, --- S.W.3d ----, 2009 WL 4406090 (Ky.App. 2009). As
to findings of fact, this Court will not disturb the trial court's findings of fact unless
clearly erroneous. “Findings of fact are not clearly erroneous if supported by
substantial evidence.” Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852
(Ky.App. 1999). Substantial evidence is that evidence, when taken alone or in the
light of all the evidence, has sufficient probative value to induce conviction in the
minds of reasonable people. Id., citing Kentucky State Racing Commission v.
Fuller, 481 S.W.2d 298, 308 (Ky. 1972). The standard of review of a trial court's
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denial of summary judgment is de novo. See Scifres v. Kraft, 916 S.W.2d 779, 781
(Ky.App. 1996).2 With this in mind we turn to Appellant’s first argument.
First, Appellant argues that the court did not apply the law correctly
when it found that the clause in question was ambiguous and should be stricken.
In support thereof, the Appellant further argues that the standard for the
interpretation of a will focuses on the intent of the testator. Further, she argues that
the devise was not ambiguous, and that if the phrase is held ambiguous the proper
rules of construction must be used, and extrinsic evidence should be considered.3
In construing a will the courts:
[G]o first to the most basic of all such rules, the so-called
“polar star rule.” This rule holds that in the absence of
some illegality, the intention of the testator is controlling.
Scheinman v. Marx, Ky., 437 S.W.2d 504 (1969), and
Combs v. First Security National Bank and Trust Co.,
Ky., 431 S.W.2d 719 (1968). For additional authority,
see 22 Kentucky Digest, “Wills,” § 439 (1985). To
ascertain the testator's intention, it is necessary to first
examine the language of the instrument. If the language
used is a reasonably clear expression of intent, then the
2
As to Appellant’s summary judgment motion, it “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, stipulations, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” CR 56.03. In light of this standard the trial
court did not err in denying Appellant’s motion for summary judgment.
3
As discussed infra, we agree with the circuit court that the provision in question was
ambiguous. Additionally, the circuit court did not err in its usage of the rules of construction.
Appellant cites Hopson v. Ewing, 353 S.W.2d 203 (Ky.1962), for the proposition that the circuit
court should have considered extrinsic evidence to establish testamentary intent. Hopson held
“Where a nondescript instrument not in the usual form of a will is of ambiguous import on its
face, extrinsic evidence is admissible to establish testamentary intent.” Id. at 205. However,
there is no question before this Court as to whether the holographic will in the case sub judice is
in fact a will. Thus, we do not find Hopson persuasive.
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inquiry need go no further. Gatewood v. Pickett, 314 Ky.
125, 234 S.W.2d 489 (1950). If it is not such a clear
expression, then it is necessary to construe the language
used according to appropriate rules of construction.
Clarke v. Kirk, 795 S.W.2d 936, 938 (Ky. 1990).
We agree with the circuit court that the will provision in the case sub
judice is ambiguous. The terms “may” and “about” create an uncertain result.
Indeed, the Kentucky Supreme Court noted, “Not only have Kentucky courts long
construed “may” to be a permissive word, rather than a mandatory word, but our
legislature has given guidance in this regard. When considering the construction of
statutes, KRS 446.010(20) provides that “may” is permissive, and “shall” is
mandatory.” Alexander v. S & M Motors, Inc., 28 S.W.3d 303, 305 (Ky. 2000).
We must determine a testator’s intention by what was said in the language of the
will rather that what was intended. Cheuvront v. Haley, 444 S.W.2d 734, 737 (Ky.
1969). While the testator might have wished the Appellant to have the right to
purchase from the Appellees the land in question, such definitive language is not
found in the will itself. We are also mindful:
In the absence of a clear intention to make an
unequal distribution, this Court presumes that a testator
intends to treat beneficiaries of the same class equally.
We have held that the law favors construction of a will
which conforms most nearly to the general law of
inheritance . . . . The presumption in favor of equality has
been held to be one of the most forceful of all
presumptions.
Among them [rules of construction], and perhaps
the most forceful one (of ascertaining and administering
the intention of the testator), is the one that courts favor
and will administer equality among descendent
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beneficiaries of a will, unless its language clearly
indicates to the contrary; and which is to say, that where
the language of the testator is ambiguous and uncertain,
calling for two possible interpretations-the one resulting
in equality and the other resulting in inequality-the
former will be adopted to the exclusion of the latter.
Clarke at 940 (internal citations omitted).
Given that both parties are beneficiaries of the same class, the circuit
court correctly applied the presumption of equality to beneficiaries of the same
class in light of any ambiguity in the will. Since the law favors the vesting of a
fee, we cannot say that the trial court erred in ordering that the parties were each
entitled to a one-fourth interest in the land in light of the will provision. See
Chaffin v. Adams, 412 S.W.2d 563, 564 (Ky. 1967). Accordingly, we find no error
in the circuit court’s order and judgment. We now turn to Appellant’s second
argument.
In considering Appellant’s second argument that she was entitled to
additional findings of fact under the CR 52.04 motion, we must understand that CR
52.04, by its own terms, addresses an additional finding of fact on an issue
essential to the judgment. In contrast, Appellant presents a legal argument by
disputing the ambiguity of the will; there were no facts to be found. Moreover, CR
52.01 specifically provides that “[f]indings of fact and conclusions of law are
unnecessary on decisions of motions under Rules 12 or 56 or any other motion
except as provided in Rule 41.02.” With this in mind we turn to Appellant’s own
motion.
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Appellant’s motion stated: “The court should make findings of fact
pursuant to the Civil Rules of Procedure, specifically as to Civil Rule 52.01, 52.03,
and 52.04, as to why it reached its conclusion. Specifically the distinguishing
factors, ambiguities, and why the bequest should not be read as a whole.” In light
of the court’s order, we fail to see what additional facts essential to the judgment
the court could have found. While the court did not specifically address in the
order the entire detailed holographic will, the court specifically addressed the
provision in contention and found it ambiguous. Moreover, the court considered
the entire will and the parties’ arguments pertaining thereto. We agree with the
Appellees that the court made adequate findings of fact and has read the bequest as
a whole. Based on our Civil Rules, the court did not err in denying Appellant’s
motion for additional findings of fact.
In light of the aforementioned reasons, we affirm the Warren Circuit
Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
David F. Broderick
Jason C. Hays
Bowling Green, Kentucky
W. Currie Milliken
Bowling Green, Kentucky
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