LEXA CONWAY and BILLY CONWAY v. OTIS L. KEARNS, JR., Individually and as Personal Representative NORMA KEARNS
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RENDERED: November 25, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000100-MR
LEXA CONWAY and BILLY CONWAY
v.
APPELLANTS
APPEAL FROM LEWIS CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 95-CI-000060
OTIS L. KEARNS, JR.,
Individually and as
Personal Representative
of AILEEN THOMAS, and
NORMA KEARNS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an award of summary
judgment in favor of appellees.
It presents the question of
whether a widow, as devisee under the will of her late husband,
can convey certain real property.
We believe that the testator
intended to give his widow both a power of sale and a power of
control over the real property such that her gift of the property
was permissible.
Accordingly, we affirm.
The will of C.F. Thomas was probated in 1965.
stated, in relevant part:
It
ITEM II. I GIVE, DEVISE AND BEQUEATH ALL OF
MY PROPERTY, REAL AND PERSONAL, MIXED OR
OTHERWISE, INCLUDING ALL AUTOMOBILES, MONEYS
IN ANY BANK, AND REGARDLESS OF WHERE SITUATED
AND WHETHER ACQUIRED BEFORE OR AFTER THE
EXECUTION OF THIS WILL, TO MY BELOVED WIFE,
ALLIE THOMAS, TO HAVE AND TO HOLD THE SAME IN
HER OWN RIGHT, TO CONTROL THE SAME AND MANAGE
IT IN HER OWN WAY DURING THE REMAINDER OF HER
NATURAL LIFE, AND SHE IS TO HAVE THE POWER OF
SELLING ANY OR ALL OF MY PERSONAL PROPERTY OR
ANY OF MY REAL PROPERTY THAT SHE MAY SEE FIT
OR DEEM NECESSARY.
BUT AT THE DEATH OF MY WIFE, ALLIE
THOMAS, I DESIRE THAT ALL OF MY ESTATE, BOTH
PERSONAL AND REAL, THAT SHE MAY THEN HAVE OR
BE POSSESSED OF, BE DIVIDED AS SET OUT IN
ITEM III, OF THIS MY LAST WILL AND TESTAMENT.
. . . .
ITEM III. I GIVE AND DEVISE TO MY SON,
GILBERT THOMAS, THE SUM OF FIVE THOUSAND
($5,000.00) DOLLARS.
I GIVE, DEVISE AND BEQUEATH TO MY SON,
H.H. THOMAS AND MY DAUGHTER, LEXIE O. CONWAY,
IN TWO EQUAL PARTS, THE HOME PLACE FARM, OF
ABOUT 135 ACRES . . . IN FEE SIMPLE AND TO BE
THEIRS ABSOLUTELY.
I GIVE, DEVISE AND BEQUEATH TO MY SON,
GEORGE THOMAS, ONE FARM, KNOWN AS THE OLD
BOYD PLACE, FOR HIS LIFETIME, AND HE IS TO
HAVE ALL OF THE RENTS, ISSUES AND PROFITS
FROM THIS FARM, DURING HIS LIFETIME, AND THE
SOLE RIGHT OF POSSESSION OF ALL HOUSES, BARNS
AND OTHER OUT BUILDINGS DURING HIS LIFETIME;
AND AT HIS DEATH, THE FARM IS TO BE SOLD AND
THE PROCEEDS SHALL BE DIVIDED IN FOUR (4)
EQUAL PARTS AMONG THE WIDOW OF GEORGE THOMAS,
(AILEEN THOMAS), HER HEIRS AND ASSIGNS; H.H.
THOMAS, GILBERT THOMAS AND LEXIE O. CONWAY.
(Emphasis added.)
In 1965, Allie conveyed all of her rights, title, and
interest in the Boyd Place farm to her son, George Thomas.
listed consideration was love and affection.
conveyance was clearly a gift and not a sale.
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The
Thus, the
In 1971, George
conveyed the property to his wife, Aileen, and himself as tenants
by the entirety.
George died in 1989, and in 1991 or 1992,
Aileen conveyed the property to her son, Otis and his wife,
Norma.
Otis was not George’s child.
The actual conveyance of the Boyd’s Place farm differs
from C.F.’s will in that the will would have given George, after
Allie’s death, a life estate in the farm.
Upon George’s death,
the farm was to be sold with proceeds to be divided equally in
four parts among George’s widow, Aileen, and C.F.’s remaining
three children, H.H., Gilbert, and Lexie (Lexa).
Lexa and her
husband brought suit, seeking the sale of the farm and her
proportionate share of the proceeds.
The trial court relied upon the cases of Melton v.
Wyatt, Ky., 517 S.W.2d 242 (1974) and Mitchell v. Mitchell, Ky.,
276 S.W.2d 470 (1955) to conclude that C.F. gave “unlimited power
and control to his surviving wife regarding all transactions that
she saw fit or deemed necessary.”
The court added that Allie’s
death was essentially a condition precedent to the property’s
passing under Item III of C.F.’s will.
Accordingly, the court
granted appellees summary judgment.
In Melton, 517 S.W.2d 242, 243, the testator devised to
his wife all of his estate “for and during her lifetime, with the
power to use, sell, mortgage, lease or otherwise dispose of as
she sees fit.”
The Court held that this language must be
construed to “mean what it says and that such power to use and
dispose of during the lifetime of the devisee of the life estate
should be unlimited.”
Id. at 244.
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In Mitchell, 276 S.W.2d 470, the Court ruled that the
testamentary language, “to have, hold, keep and use, and dispose
of as her own” with a gift over, gave the devisee unlimited power
to encroach upon the corpus of the estate.
The Mitchell Court
harkened back to Weakley v. Wealkey, Ky., 237 S.W.2d 524, 525
(1951) (overruled by 517 S.W.2d 242 to the extent it limits the
use or disposition of the property except in making a
testamentary disposition), wherein the testatrix devised her
property to her son “to do with as he sees fit.”
The Weakley
Court held:
[W]hen a testator uses such words he means
that the first donee may use the estate for
his own purposes and if any of it is left
over, it shall go to the second donee. . . .
It is difficult to conceive of a case where a
person would write such an expression where
he did not intend that the life tenant have
broad powers to sell and dispose of the
estate.
Id. at 525-26.
Appellants rely on Molloy v. Molloy, Ky., 727 S.W.2d
870 (1987).
In that case, the testatrix gave real property to
her daughter, Betty, “for and during her natural life, with the
remainder in fee simple at her death to her issue per
stirpes. . . .”
Id. at 872.
She further provided that Betty, as
a life tenant:
shall have the right at any time, and from
time to time, to sell, assign, transfer and
convey the whole or any part of [her]
respective share[] upon such terms and
conditions as [she] in [her] sole discretion
shall determine and to invest and reinvest
the proceeds of any sale or sales in such
property, either real or personal, as [she]
may select . . . .
-4-
Id.
This Court found it clear that Betty had a life estate “with
a remainder over to her issue per stirpes, and that during her
life tenancy Betty had a duty to preserve the interests of the
remaindermen.”
Id.
The Court distinguished the will in Molloy
from the Melton will, which gave the widow “full and unlimited
power to dispose of the property in any way she saw fit, and only
whatever was left upon her death would pass to the remaindermen.”
Id.
Betty was given a limited power to sell and invest the life
estate for the benefit of the remaindermen.
“Thus, Betty could
not gratuitously convey the acreage . . . for one dollar, love
and affection.”
Id.
The language of C.F.’s will reveals that not only did
he give Allie the power to sell any of the property that she may
see fit or deem necessary, but also to hold it in her own right
and to control and manage it in her own way.
The will further
states that at Allie’s death, the estate “that she may then have
or be possessed of” should pass as he set forth.
This language
infers that the remaindermen are entitled only to so much of the
estate as remained in Allie’s possession at the time of her
death.
She, unlike Betty in the Molloy case, was not limited by
the will to preserving the corpus of the estate for the
remaindermen.
We find persuasive appellants’ argument that under
C.F.’s vision, the Boyd Place farm would have eventually been
sold and the proceeds split among Aileen, H.H., Gilbert, and
Lexie, whereas here, Otis and Norma Kearns, neither of whom was
related by blood to C.F., are possessed of the property.
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We also
acknowledge that C.F. may have intended to limit Allie’s power in
the life estate to selling it and not giving it away because, by
selling it, she would be supporting herself but she would receive
no monetary gain from a gift.
Nonetheless, we agree with the
lower court that the language, “to have and to hold the same in
her own right, to control the same and manage it in her own way
during the remainder of her natural life,” coupled with the lack
of intent that the land be preserved for the remaindermen, brings
the facts of the case closer in line with Melton, 517 S.W.2d 242
and Mitchell, 276 S.W.2d 470 than Molloy, 727 S.W.2d 870.
Accordingly, we affirm the opinion of the Lewis Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES:
Donald L. Wood
Maysville, Kentucky
Jeffrey L. Schumacher
Maysville, Kentucky
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