VIRGINIA MURRELL, AS ADMINISTRATRIX AND AS PROPOSED EXECUTRIX OF THE WILL OF LOTUS C. HUFFAKER; VIRGINIA MURRELL, SEPARATELY AND INDIVIDUALLY; AND DOROTHY MURRELL, INDIVIDUALLY v. GEORGE EDWARDS MCCARLEY ESTATE; VIVIAN CLAYPOOL BURKE ESTATE; ALBERT BURKE; BETTY CLAYPOOL WHITE; JOSEPH CLAYPOOL; MARGORIE MAXINE BURGE; LEQUITTA TIMONEY; LINDA FLINT; KENDALL CLAYPOOL; AND MARVIN CLAYPOOL
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RENDERED:
DECEMBER 8, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002097-MR
VIRGINIA MURRELL, AS ADMINISTRATRIX
AND AS PROPOSED EXECUTRIX OF THE
WILL OF LOTUS C. HUFFAKER;
VIRGINIA MURRELL, SEPARATELY AND
INDIVIDUALLY; AND DOROTHY MURRELL,
INDIVIDUALLY
APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 98-CI-01032
v.
GEORGE EDWARDS MCCARLEY ESTATE;
VIVIAN CLAYPOOL BURKE ESTATE;
ALBERT BURKE; BETTY CLAYPOOL WHITE;
JOSEPH CLAYPOOL; MARGORIE MAXINE BURGE;
LEQUITTA TIMONEY; LINDA FLINT; KENDALL
CLAYPOOL; AND MARVIN CLAYPOOL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
Virginia Murrell, as Administratrix with the Will
Annexed of the Estate of Lotus C. Huffaker, and as proposed
Executrix of the Will of Lotus C. Huffaker, Virginia Murrell, and
Dorothy Murrell (collectively referred to as “the Murrells”),
bring this appeal from an August 3, 1999, order of the Pulaski
Circuit Court.
We affirm.
On December 14, 1998, the Murrells filed the instant
litigation against George Edward McCarley Estate, Albert Burke,
Vivian Claypool Burke Estate, Betty Claypool White, Joseph
Claypool, Margorie Maxine Burge, Lequitta Timoney, Linda Flint,
Kendall Claypool, and Marvin Claypool, seeking a declaration of
rights under our Declaratory Judgment Act, codified as Kentucky
Revised Statutes (KRS) 418.040-090.
KRS 418.040 provides:
418.040. Plaintiff may obtain declaration of
rights if actual controversy exists. — In any
action in a court of record of this
commonwealth having general jurisdiction
wherein it is made to appear that an actual
controversy exists, the plaintiff may ask for
a declaration of rights, either alone or with
other relief; and the court may make a
binding declaration of rights, whether or not
consequential relief is or could be asked.
(Emphasis added.)
KRS 418.045 provides, in part, as follows:
418.045. Persons who may obtain declaration
of rights — Enumeration not exclusive. — Any
person interested under a deed, will or other
instrument of writing, . . ., may apply for
and secure a declaration of his right or
duties, even though no consequential or other
relief be asked. . . .
Specifically, the Murrells sought to be declared owners of
certain intangible personal property in “possession” of one,
Lotus C. Huffaker, who died in Pulaski County on March 17, 1997.
There were two counts in the declaration by which the
Murrells sought to succeed.
The first count alleged entitlement
to the intangible personal property in the form of savings
accounts, certificates of deposit, and stock by virtue of an
“unsigned” handwritten document of the late Lotus C. Huffaker.
The Murrells sought to have this document probated as the last
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will and testament of Lotus or as a codicil to a previously
probated holographic will.
The previous will only disposed of
real property to the benefit of Lotus' two nephews, George E.
McCarley and Gene McCarley.
personal estate.
It made no disposition of Lotus'
The handwritten document, which the Murrells
sought to have probated, disposed of personal property only.
The
document bequeathed Lotus' personal estate to the Murrells.
That
estate largely consisted of the intangibles aforementioned.
It
was, of course, to the Murrells' interest that the unsigned
document be probated as the last will of Lotus or as a codicil to
the previously probated holographic instrument.
Count two in the declaration sought to obtain
substantially the same intangible personal property under the
will of Eliza Huffaker (the Murrells' grandmother) executed in
1939 and probated in Pulaski County in 1945.
It was the
Murrells' contention that the intangible personal property passed
to the Murrells as remaindermen under Eliza's will, and that the
same had come into the hands of Lotus during her lifetime whereas
it should have come into the hands of the Murrells upon the death
of two life tenants.
other in 1979.
The life tenants died, one in 1963 and the
It was at the latter's death that the Murrells
were to be entitled to the intangible personal property (if any
there remained).
We shall discuss the two counts separately.
COUNT I
On May 30, 1984, Lotus Huffaker executed a holographic
will.
On March 17, 1997, she died.
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On August 6, 1997, the
holographic will was duly entered for probate in the Pulaski
District Court.
In this action, the Murrells seek to probate an
“unsigned” document dated October 30, 1992.
That document, being
wholly within the handwriting of Lotus Huffaker, provides as
follows:
Will
Oc br 30, 1992
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Na n l Ba k— ls Mu a Fe e l Sain sa dL o nac u t.
tio a n a o tu l d ra v g n a co n
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rtific te f p s t t n rmrs n
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The question before us is whether the foregoing
document may be probated as Huffaker's last will or as a codicil
to her theretofore probated will of May 30, 1984.
The circuit
court held that the document was neither a last will nor a
codicil because of the absence of a signature.
The court held
that it was not “subscribed” as required by statute.
provides:
394.040.
Requisites of a valid will.
-4-
KRS 394.040
No will is valid unless it is in writing with
the name of the testator subscribed thereto
by himself, or by some other person in his
presence and by his direction. If the will
is not wholly written by the testator, the
subscription shall be made or the will
acknowledged by him in the presence of at
least two (2) credible witnesses, who shall
subscribe the will with their names in the
presence of the testator, and in the presence
of each other. (Emphasis added.)
KRS 446.060 provides:
446.060. Writings — Signature must be at end
— To be in English.
(1)
(2)
When the law requires any writing to be
signed by a party thereto, it shall not
be deemed to be signed unless the
signature is subscribed at the end or
close of the writing.
Every writing contemplated by the laws
of this state shall be in the English
language. (Emphasis added.)
We agree with the circuit court and are of the opinion
that holographic wills must nevertheless be subscribed by the
testator.
It is not sufficient that the testator's name appear
in the document.
It must be subscribed as a signature.
To
permit otherwise, would open the door for all sorts of documents
being offered as testamentary.
It would defeat the purpose
underlying the manner of executing wills.
that we agree with the circuit court.
It is for this reason
The document is not valid
as either a last will or codicil.
COUNT II
Virginia Murrell and Dorothy Murrell claim as
remaindermen under the will of their grandmother, Eliza Huffaker.
Under the terms of Eliza's will, her personal property was to be
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kept and maintained with the income divided equally between her
son, Morris Huffaker, and her daughter, Pearl Murrell.
death of one, the survivor was to enjoy the income.
At the
At the death
of both Morris and Pearl, the property was to pass to Virginia
and Dorothy.
At this point, the facts are somewhat murky.
It
appears, however, that in 1963 Morris died leaving his entire
estate to his widow, Lotus.
In all probability, this included
all or some of the intangible properties which emanated from
Eliza.
It further appears that at Morris' death, Pearl Murrell
may not have claimed possession of the intangibles.
On the other
hand, it appears Lotus enjoyed possession of same and the income
therefrom.
It is claimed that at Pearl's death, the
remaindermen, Virginia and Dorothy, allowed Lotus to continue to
enjoy the income as a supplement to her living expenses.
In any event, it was only after Lotus' death that
Virginia and Dorothy claimed possession of the remainder
interest.
There is one thing relatively clear, however, that
neither Virginia nor Dorothy claimed possession of the personal
property until the death of Lotus in 1997.
Because the Murrells had not claimed possession of the
personal property after both life tenants were deceased, the
circuit court was of the opinion that they are now barred from
asserting said claim by virtue of the five-year statute of
limitations set forth in KRS 413.120.
The Murrells contend that the statute has no
application.
The Murrells advance the argument that they
permitted Lotus to take possession of the personal property upon
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the death of her husband, Morris, such that Lotus would have some
income to provide for her living expenses.
In other words, they
contend that the possession of the intangibles by Lotus at the
time of her death was permissive.
They further assert that no
controversy within the meaning of KRS 418.045 existed until
Lotus' death on March 17, 1997.
Perforce, they urge that the
five-year statute of limitation does not bar the instant action
which was filed on December 14, 1998.
We find no Kentucky authority directly on point so as
to dispose of the issue presented in Count II.
Nevertheless, we
are of the opinion that if the Murrells had any claim to
intangible properties under Eliza's will, those claims matured
upon Pearl's death in 1979, she being the last life tenant.
It
was at that time incumbent upon Virginia and Dorothy to take
action to secure their interests in the intangibles whether or
not they were to be directed toward the benefit of Lotus.
It was
at that time that the statute of limitations began to run.
We are constrained to agree with the circuit court in
this matter.
Inasmuch as the action is barred by the five-year
statute of limitation, there exist no actual controversy within
contemplation of KRS 418.040.
S.W.2d 336 (1972).
See Alexander v. Hicks, Ky., 488
In short, where allegations on the face of a
complaint for declaration of rights show that the claims are
barred by the statute of limitations, there can be no controversy
and the action should be dismissed.
For the foregoing reasons, the order of the Pulaski
Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEES, ALBERT
BURKE, VIVIAN CLAYPOOL BURKE
ESTATE, BETTY CLAYPOOL WHITE,
JOSEPH CLAYPOOL, MARGORIE
MAXINE BURGE, LEQUITTA
TIMONEY, LINDA FLINT, KENDALL
CLAYPOOL, AND MARVIN CLAYPOOL:
Michelle Ross Altobella
Somerset, Kentucky
Robert E. Gillum
Somerset, Kentucky
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