ALLEN GAILOR, ADMINISTRATOR OF THE ESTATE OF EDITH ABRAHAMS v. LARRY WEBB, EXECUTOR OF THE ESTATE OF WILLIAM I. KIMBERLIN; AND PAUL L. ADAMS, M.D. PAUL L. ADAMS, M.D. v. JUDGE STEPHEN M. SHEWMAKER ALLEN GAILOR, ADMINISTRATOR OF THE ESTATE OF EDITH ADAMS ABRAHAMS; AND LARRY WEBB, EXECUTOR OF THE ESTATE
Annotate this Case
Download PDF
RENDERED:
December 15, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
MODIFIED: April 27, 2001; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002322-MR
ALLEN GAILOR, ADMINISTRATOR
OF THE ESTATE OF EDITH ABRAHAMS
v.
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE STEPHEN M. SHEWMAKER, JUDGE
ACTION NO. 97-CI-00508
LARRY WEBB, EXECUTOR OF THE ESTATE OF
WILLIAM I. KIMBERLIN; AND
PAUL L. ADAMS, M.D.
AND
NO.
APPELLEES
1998-CA-002409-MR
PAUL L. ADAMS, M.D.
v.
APPELLANT
CROSS-APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
JUDGE STEPHEN M. SHEWMAKER
ACTION NO. 97-CI-00508
ALLEN GAILOR, ADMINISTRATOR
OF THE ESTATE OF EDITH ADAMS ABRAHAMS;
AND LARRY WEBB, EXECUTOR OF THE ESTATE
OF WILLIAM I. KIMBERLIN
CROSS-APPELLEES
OPINION
AFFIRMING IN PART; REVERSING IN PART; AND REMANDING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE: Allen Gailor, administrator of the estate of
Edith Abrahams, has appealed from the judgment of the Boyle
Circuit Court entered on August 28, 1998, that dismissed his
claims against appellees.
Appellee, Paul L. Adams, M.D. has
filed a cross-appeal against Gailor.
Having concluded that part
of the trial court’s ruling is erroneous, we affirm in part,
reverse in part and remand for further proceedings.
This case involves a complicated series of events and
multiple court actions.1
The first significant event related to
this case occurred when William I. Kimberlin died testate in
Boyle County, Kentucky, on January 11, 1992.
At the time of his
death, Kimberlin was married to the sister of Edith Adams
Abrahams and Paul Adams.
Kimberlin’s will.
Edith and Adams were beneficiaries of
Larry Webb was appointed as the executor of
the Kimberlin estate.
The Kimberlin estate was probated in the
Boyle District Court.
Edith’s share of the Kimberlin estate was
to have been $28,922.20, but she died intestate on October 30,
1
Review of this matter was made more difficult by both
parties’ failing to fully comply with Kentucky Rules of Civil
Procedure (CR) 76.12(4)(c)(iii) which requires a party in his
brief to make “ample references to the specific pages of the
record . . . supporting each of the statements narrated in the
summary.” Furthermore, the parties failed to make sufficient use
of the appendix to their briefs by not including various
important documents so that they would be readily available for
this Court’s review. See 76.12(4)(c)(vi).
-2-
1992, in Jefferson County, Kentucky, prior to her share being
distributed.
At the time of her death, Edith was 76 years old
and had lived in Kentucky for only a few weeks.
The location of
Edith’s legal residency at the time of her death was later to
become the central legal issue in this case.
In August 1992, Edith came to Jefferson County to visit
Adams, who was her brother.
approximately 50 years.
Edith had lived in New York for
Edith told Adams that she was separating
from her husband of four years, Philip Abrahams, and was moving
to Jefferson County.
With Philip’s knowledge, Edith proceeded to
establish her residency in Jefferson County by opening local bank
accounts, purchasing a home in her sole name, applying for and
receiving a homestead exemption on her real estate taxes, and
making arrangements to have her furniture and other personal
property moved from her apartment in New York to Jefferson
County.
When Edith suddenly died on October 30, 1992, Philip
did not immediately come to Kentucky.
Adams took care of the
burial arrangements and her cremated remains were buried at a
family cemetery in Boyle County.
While Philip was in Boyle
County to attend a memorial service for Edith during the weekend
of Thanksgiving 1992, he contacted attorney William Barnett, who
represented the Kimberlin estate.
Based upon representations
made by Philip to Barnett, Barnett prepared for Philips’
signature a document entitled, Affidavit of Descent and
Disclaimer.
The affidavit was mailed to Philip in New York and
-3-
he executed it under oath before a notary public on December 3,
1992.
In the affidavit, Philip made the following statements
that are of significance to this case: (1) Edith died as a
resident of New York, New York; (2) Edith was survived by only
her husband, Philip, and her brother, Adams, and had “no other
surviving brothers or sisters, or descendants of any deceased
brother or sister”; and (3) Philip was waiving all right to
inheritance from Edith from the Kimberlin estate, “leaving Paul
L. Adams as her only heir and next of kin.”
The Kimberlin estate
proceeded to probate and Adams received a bequest from the estate
in December 1992.
Adams’ bequest included not only the bequest
made specifically to him, but also the bequest made to Edith that
had been waived by Philip.
This would have appeared to have
concluded the affairs of the Kimberlin estate as far as Adams’
inheritance was concerned, but complications that subsequently
arose in Edith’s estate have caused further litigation in the
Kimberlin estate.
Philip hired counsel from Jefferson County to probate
Edith’s estate and he asked Adams to administer her estate in
Kentucky.
Philip wanted the Kentucky probate action to apply
only to assets located in Kentucky and to have a separate probate
action in New York for New York assets.
However, the attorney
from Jefferson County advised Philip that since Edith died while
a legal resident of Kentucky, Kentucky had jurisdiction of her
entire estate.
When Adams, as administrator, filed a petition to
-4-
probate Edith’s estate in Jefferson District Court in January
1993, he listed Edith’s place of residence as Jefferson County.
Subsequently, Philip continued his objection to listing Kentucky
as Edith’s place of residence and also challenged the appointment
of Adams as administrator.
On April 13, 1994, Gailor, the
Jefferson County Public Administrator, was appointed to replace
Adams as the administrator of Edith’s estate.
In an attempt to resolve the dispute concerning Edith’s
residency, Philip filed an action in Jefferson Circuit Court on
March 29, 1995.
Philip was represented by attorney Richard Hill,
who also represents Gailor before this Court.
The Jefferson
Circuit Court entered a judgment on June 7, 1996, wherein it
found that Edith was “domiciled” in Kentucky at the time of her
death.2
No appeal was filed from that judgment.
This judicial finding that Edith was a legal resident
of Kentucky, and not New York, has placed the earlier
distribution of the Kimberlin estate to Adams in jeopardy.
Since
Edith was a legal resident of Kentucky, Kentucky’s law of
intestate succession provides that Philip was entitled to 50% of
Edith’s estate, Adams was entitled to 25%, and nine other
relatives of the half-blood were entitled to share the remaining
2
The record includes the summary judgment from Jefferson
Circuit Court which states “Edith Adams Abrahams was domociled
[sic] in Kentucky at the time of her death.” While the
determination of Edith’s domicile was a key element of
determining her legal residence, the fact remains that her legal
residence was the ultimate question to be answered. See Ellison
v. Smoot’s Adm’r, 286 Ky. 768, 773-75, 151 S.W.2d 1017, 1020-21
(1941).
-5-
25% of Edith’s estate.3
On October 29, 1997, Gailor filed this action in the
Boyle Circuit Court against the appellees challenging the
distribution of the Kimberlin estate.4
Gailor demanded “[t]hat
the Settlement of the Estate of William I. Kimberlin be
surcharged and set aside and that Plaintiff recover from Larry
Webb, Executor and Paul Adams, jointly and severally, the sum of
$28,922.20, together with interest thereon at the legal rate from
December 17, 1992 until paid.”
After various motions were filed
and some discovery was undertaken, the Boyle Circuit Court on May
29, 1998, entered an “Agreed Judgment between Plaintiff and Larry
Webb, Individually and as Executor of the Estate of William I.
Kimberlin.”
This agreed judgment provided: (1) that Webb “does
not contest the allegations contained in the Complaint”; (2) that
“[t]he Order entered in Boyle County (sic) District Court on
January 26, 1993, confirming the First and Final Settlement of
the William I. Kimberlin estate should be set aside, corrected
and surcharged to account for the $28,922.20 plus any accrued
interest due to the Estate of Edith Abrahams”; (3) that “Larry
Webb, individually, shall have no liability . . . [and] is
dismissed as a party to this action”; (4) that “Larry Webb,
3
Kentucky Revised Statutes (KRS) 391.010, 391.030, 391.040
391.050, 392.020.
4
The parties have made vague references to two motions that
were filed regarding the Kimberlin estate and Edith’s domicile in
the Jefferson District Court and the Boyle District Court.
Apparently, both motions were denied and are of no relevance to
our review.
-6-
Executor of the Estate of William I. Kimberlin, shall remain as a
party to this action because, in the event Paul Adams is ordered
by the Court to return funds to the Estate of William I.
Kimberlin, Larry Webb, as Executor, will be required to properly
account for such monies, prepare any necessary amended final
settlement of the Kimberlin estate and distribute any funds in
his hands as Executor to the person entitled thereto”; and (5)
that “[t]o the extent that KRS 395.165,5 KRS 396.195, or any
other statute requires Larry Webb, as Executor of the Estate of
William I. Kimberlin, to take any action, then, to the extent
required by such statutes, this action will be deemed to include
Larry Webb, Executor of the Estate of William I. Kimberlin, as
Plaintiff for any funds due the Estate of William I. Kimberlin.”
On June 8, 1998, Adams filed a CR 59.05 motion to set
aside the agreed judgment.
This motion was denied on June 30,
1998, in an order wherein the circuit court also stated that all
pending motions were set for a “Hearing” on July 29, 1998, at
which time
the Court will hear evidence regarding the
Affidavit of Descent and Disclaimer and the
circumstances in which it was signed by
Philip Abrahams.
The Court will also hear such other
evidence as bears upon the two issues in this
case - (1) whether the final settlement in
the Kimberlin Estate should be set aside due
to the mistake made regarding the domicile of
Edith Abrahams, and (2) what is the effect of
the Affidavit of Descent and Disclaimer
5
There is no such statute.
-7-
signed by Philip Abrahams, that is, was the
disclaimer valid at all due to the failure to
provide a full and fair disclosure to Mr.
Abrahams of the amount he was disclaiming or
was the disclaimer valid so far as Mr.
Abrahams’ own interest was concerned.6
At the beginning of the “hearing” that occurred on July
29, 1998, attorney Hill, who represents Gailor, advised the trial
court that Philip had been hospitalized in New York and was
unavailable for the hearing and would be unavailable for the
foreseeable future.
However, Gailor did not request a
continuance of the hearing; and the trial court reiterated its
previously stated intention to consider the parties’ evidence as
to the issues before the court.
The attorneys used the “hearing”
to argue their positions to the trial court, but no evidence was
presented.
The trial court entered an order on August 28, 1998,
that addressed various issues that were argued at the hearing and
dismissed Gailor’s claims against Adams.
This appeal and cross-
appeal followed.
Gailor’s first argument is as follows: “The court erred
in failing to set aside the final settlement in the Kimberlin
estate when no full and fair disclosure was given to Philip
Abrahams of the amount he was disclaiming.”
totally without merit.
This argument is
Gailor failed to present any evidence at
6
Curiously, the record includes a second order entered by
the Boyle Circuit Court on July 6, 1998, which also ruled on the
same motions from the June 22, 1998, motion hour. The orders are
consistent, but do not include the same language. Apparently,
attorneys for Gailor and Adams each tendered orders, and both
tendered orders were entered by the circuit court.
-8-
the hearing to support his claim that “Abrahams’ waiver of
Edith’s interest in the Kimberlin Estate must be set aside due to
the lack of disclosure to him of the full value of what he was
disclaiming, particularly the failure to disclose any information
regarding the proceeds from the sale of the Kimberlin residence.”
In its order, the trial court addressed this issue as follows:
Philip has disclaimed any interest in the
estate of Edith. That is binding upon him.
Consequently, he had no recoverable interest
in any property involved in this litigation.
Abrahams has also admitted that he
misrepresented the facts in his affidavit as
concerned the existence of the half-blood
heirs. He has also settled with the
executor. Consequently, he has no interest
in this action. Since he has no interest, he
is not a necessary party.
Obviously, the above finding is very confusing.
However, Gailor failed to move the trial court pursuant to CR
52.04 “to make a finding of fact on an issue essential to the
judgment.”
Thus, we do not believe that Gailor has properly
preserved for our review the question of the sufficiency of the
evidence to support this finding by the trial court.
We also
note that Gailor has failed to comply with CR 76.12(4)(c)(iv),
which requires that the brief “contain at the beginning of the
argument a statement with reference to the record showing whether
the issue was properly preserved for review and, if so, in what
manner.”
Furthermore, we note that since Gailor had the burden
to go forward with his proof, and presented none, that the trial
court’s findings as to Philip receiving proper disclosure cannot
-9-
be held to be clearly erroneous.7
Gailor’s next five arguments will be addressed jointly:
II.
The court erred in failing to set aside
the final settlement in the Kimberlin
estate because the Executor erroneously
distributed assets based upon the
mistaken belief that Edith Abrahams was
domiciled in New York.
III. The court erred in deciding that
appellant, as Administrator of the
estate of Edith Abrahams, did not have
the authority to take action on behalf
of said estate.
IV.
The judgment of the trial court must be
reversed because its findings of fact
were clearly erroneous.
V.
The court erred in determining that the
appellant had severed all claims as may
exist against the executor of the
Kimberlin estate and therefor KRS
413.120 did not apply.
VI.
The court erred in determining that the
waiver signed by Philip Abrahams was
effective; Philip Abrahams was not the
personal representative of Edith
Abrahams’ estate and he had no authority
to waive any interest belonging to
Edith’s estate.
In essence, Gailor is claiming that the circuit court erred by
dismissing his claim; and we agree.
However, Gailor has failed
to challenge the actual basis for the circuit court’s ruling that
dismissed his claim.
In its order dismissing the complaint, the circuit
7
CR 52.01.
-10-
court relied upon Estates of Cahoon v. Seaton,8 for the rule
“that where persons having an interest in an estate are
personally served and given an opportunity to fully and fairly
litigate their interest in an adversarial hearing, if they choose
not to take advantage of this opportunity, their claims are
forever barred.”
The circuit court approved of this rule and
stated that in the case sub judice “all the half-blood heirs have
been personally served and none have come forward to request
representation or make a claim, therefore, their claims are
waived and forever barred.”
Unfortunately, in this appeal
neither party addresses the Seaton case or the circuit court’s
ruling that is based on Seaton.
Nevertheless, we believe the
circuit court’s ruling that relied upon Seaton was in error and
requires reversal.
At this juncture, we believe that it would be helpful
to provide a general discussion concerning this area of the law.
Where an administrator negligently fails
to ascertain the identity of heirs entitled
to share the estate and as a consequence
makes distribution to the wrong persons, the
administrator and his surety are personally
liable to the distributees legally entitled
to receive the assets, even if the
distribution was made in good faith and in
ignorance of the existence of the person
omitted, and in reliance on counsel. But he
may recover back amounts erroneously paid
[footnotes omitted].
. . .
In general, an heir who is unjustly
8
633 P.2d 607 (Idaho 1981).
-11-
enriched by taking an undisclosed heir’s
interest in an estate will be compelled to
account to the undisclosed heir and will be
held to hold in constructive trust that which
was unjustly taken, together with accruals in
trust, for the undisclosed heir, who will be
held to have a lien on the property unjustly
taken together with accruals [footnote
omitted].9
The Restatement [of the Law of Restitution],
§ 126, distinguishes, however, between the
rights of the administrator and of the heirs.
Section 126, comment c (p. 516), provides
that where a fiduciary in the distribution of
assets held for others pays money to a person
whom he mistakenly believes to be a
beneficiary, the real beneficiary is entitled
to restitution from the transferee, and the
following illustration is given: A,
administrator of B’s estate, pays money out
of the assets of the estate to C whom both by
mistake of law believe to be B’s next of kin.
In fact, D is B’s next of kin. D is entitled
to restitution from C. Upon the decease of
intestate the title to his personal property
remains in abeyance until the appointment of
an administrator when it vests in the latter
for the purpose of taking charge of the
property and distributing it to those who
after due inquiry are found to have valid
claims against the estate. The mistake of
this fiduciary, whether of fact or of law,
should not be held to impair the right of the
heirs at law to recover their just claims
from one unjustly enriched at their expense,
where there is no fraud and it is shown that
the mistake was shared in by all. While no
general rule can be given to apply to all
cases, where through a mutual mistake there
has been an unjust enrichment, as stated in
Reggio v. Warren,[207 Mass. 525, 534 93 N.E.
805, 32 L.R.A. 340, 20 Ann. Cas. 1244]:
The important question was not
whether the mistake was one of law
or fact, but whether the particular
9
31 Am.Jur.2d Executors and Administrators §1063, §1064
(1989).
-12-
mistake was such as a court of
equity will correct, and this
depends upon whether the case falls
within the fundamental principle of
equity that no one shall be allowed
to enrich himself unjustly at the
expense of another by reason of an
innocent mistake of law or fact
entertained by both parties.10
Thus, we hold that Gailor as the administrator of
Edith’s estate was empowered under KRS 395.195(19) and (22) to
prosecute this claim for the protection of the estate and in
order to distribute Edith’s estate as provided by law.
Accordingly, the circuit court was empowered in equity to require
Adams to make restitution to Edith’s estate in order to prevent
Adams’ unjust enrichment.11
The inaction of the half-blood heirs
in not actively pursuing this action was irrelevant to Gailor’s
obligation and authority to pursue this claim.
Thus, the circuit
court erred as a matter of law when it dismissed Gailor’s claim
and refused to order Adams to pay restitution.
Since the circuit
court’s finding that Edith’s domicile and legal residency was in
Kentucky is res judicata, there is no genuine issue as to any
material fact and Gailor is entitled to judgment as a matter of
10
Moritz v. Horsman, 305 Mich. 627, 634, 9 N.W.2d 868, 871
(1943).
11
“‘A person who has been unjustly enriched at the expense
of another is required to make restitution to the other.’
Restatement of the Law of Restitution, § 1. ‘A person is
enriched if he has received a benefit . . . . A person is
unjustly enriched if the retention of the benefit would be
unjust.’ Id., Comment a.” Bryan Brothers Packing Co. v.
Garrard, Ky., 386 S.W.2d 469, 474 (1965).
-13-
law.12
The material facts are undisputed: Edith died intestate a
legal resident of Kentucky; her heirs at law included Philip,
Adams, and the nine half-blood heirs; Philip waived any claim
that he had in favor of Adams; and Philip had no authority to
waive the claim of the nine half-blood heirs.
Thus, as a matter
of law, Adams erroneously received the funds consisting of
$28,922.20 that were actually payable to the Estate of Edith
Abrahams; and Adams must be ordered to make restitution to
Edith’s estate in the amount of $28,922.20, with the question of
interest to be decided by the circuit court on remand.
Since we have held that the circuit court erred as a
matter of law in dismissing Gailor’s claim, issue number four is
moot.
However, we agree with Gailor that the circuit court was
clearly erroneous in making the following findings: (1) “Philip
executed a document indicating Edith was a resident of Kentucky”;
and (2) “Philip came to Boyle District Court in an effort to
reopen the original estate and set aside the conveyance.”
Since
we are reversing on other grounds, whether these clearly
erroneous findings would otherwise require a reversal is moot.
As to issue number five, we also agree with Gailor that
the circuit court erred by finding that “Plaintiff has severed
all claims as may exist against the Executor and this is no
longer part of this litigation.”
What the circuit court meant by
“has severed all claims” is unclear.
12
The record reflects that
CR 56; Steelvest, Inc. v. Scansteel Service Center, Ky.,
807 S.W.2d 476 (1991).
-14-
Gailor and Webb reached a settlement that was approved by the
circuit court in the agreed judgment, which has not been
appealed.
In that judgment, Webb agreed with Gailor’s claims and
further agreed to participate in this action to recover the funds
from Adams.
Gailor’s sixth argument has been addressed by our
discussion of the second and third arguments.
We will not
address these issues any further.
Gailor’s seventh and final issue concerns payment of
interest: “The court erred in failing to order Dr. Adams to
reimburse the Kimberlin estate the $ 28,922.20 paid to him by
mistake on December 17, 1992 together with interest thereon at
the legal rate.”
While the trial judge at the “hearing” verbally
expressed his inclination not to award any interest on any
restitution to be paid by Adams, such a ruling was never made
final because Adams was not ordered to pay any restitution.
Thus, the issue of interest is not ripe for our review and it
will have to be considered by the circuit court on remand.
On cross-appeal, Adams raises two issues, and the first
issue actually includes three separate issues:
1.
Whether the court erred in not forthwith
sustaining the motions of the appelleecross appellant to dismiss for failure
to state a claim, failure to name Philip
Abrahams as [a] necessary party and
[the] statute of limitations?
2.
Having verbally ruled on the record that
the conduct of counsel for the
appellant-cross appellee was unethical
and that he could not continue to
-15-
practice the case, did the court err in
not disqualifying counsel and referring
the matter to the Kentucky Bar
Association pursuant to KRS 26A.[0]80?
We find no merit to these issues and affirm on the cross-appeal.
As we previously discussed, Adams’ brief is not in
proper form and his arguments are extremely difficult to follow.
In any event, Philip was not a necessary party to this action
because the action was against Webb, as administrator, to recover
the money erroneously paid to Adams to prevent Adams’ unjust
enrichment.
If Adams desired to allege a claim of fraud against
Philip, then he was required to do so on his own and not through
Gailor.
As to the statute of limitations, we agree with the
circuit court that: “The statute of limitations is ten years on
the personalty and fifteen years on the realty.”13
As his final issue, Adams claims that the circuit court
erred by not complying with KRS 26A.080, which provides:
When it comes to the attention of any
judicial officer that any justice or judge of
the Court of Justice or any attorney may have
been guilty of unprofessional conduct, he
shall at once report the matter to the proper
investigating and disciplinary authorities.
Gailor claims in his brief, signed by attorney Hill,
that Adams filed a complaint against attorney Hill with the
Kentucky Bar Association and that the complaint was dismissed.
In his brief, Adams makes the following request to this Court:
13
See Wood v. Wingfield, Ky., 816 S.W.2d 899, 903-04 (1991).
-16-
“The Kentucky Court of Appeals is not only requested to review
this matter on appeal, but to review it from its own prospective
[sic] and take such action as it deems appropriate.”
Having
throughly reviewed the record on appeal, we decline to address
this matter any further.
Obviously, if Adams or his counsel
desires to continue to pursue this matter against attorney Hill,
they may do so through the KBA.
In summary, we reverse the circuit court on the central
issue of this case and hold that Gailor, as administrator of
Edith Adams Abrahams’ estate, shall be entitled to a judgment
against Adams for $28,922.20.
We remand this matter for entry of
that judgment and for a determination by the circuit court as to
what, if any, interest shall be paid by Adams.
We affirm on the
other collateral issues raised by Gailor and on the cross-appeal
by Adams.
COMBS, JUDGE, CONCURS IN RESULT ONLY.
MCANULTY, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Richard W. Hill
Louisville, KY
Jean Acton
Louisville, KY
-17-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
