DONNA REID MITCHELL, SHARRON C. STAYTON, and TERRELL E. HEICK, JR. v. MILDRED EDDINGTON, KENNETH EDDINGTON,
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RENDERED:
OCTOBER 27, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002647-MR
DONNA REID MITCHELL,
SHARRON C. STAYTON, and
TERRELL E. HEICK, JR.
APPELLANTS
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NOS. 98-CI-00095 & 99-CI-00306
v.
MILDRED EDDINGTON, KENNETH EDDINGTON,
and MARTHA LYNN EDDINGTON as Executor
of the Estate of Edith Marie Shields
APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; BARBER and COMBS, Judges.
COMBS, JUDGE:
This is an appeal from an order of the Bullitt
Circuit Court interpreting the terms of a will and testamentary
trust.
We reverse and remand.
Edith Marie Shields died testate on May 16, 1992.
Item
II of her last will and testament devised and bequeathed the
entirety of her estate to her sisters, Jean K. Heick and Mildred
S. Eddington, in trust:
for the use and benefit of my mother, MARY M.
SHIELDS, for and during her lifetime with
remainder, unto my sisters. . . share and
share alike, each to have an undivided one-
half interest in the real estate remaining at my mother's death.
There was no separate residuary clause nor any provision to
govern in the event that either of the testator's sisters
predeceased their mother, the life tenant.
November 17, 1995.
Jean K. Heick died on
Mary M. Shields, the life tenant, died on
October 15, 1997.
The appellants, the heirs of Jean K. Heick, contend
that the remainder interest bequeathed to their mother vested on
the death of the testator, Edith Marie Shields.
The circuit
court determined, however, that the gift was contingent upon the
remaindermen’s surviving the life tenant and that the failure of
Heick to meet this condition means that she is to take nothing
under the terms of the will.
We agree with the position ably
advanced by the appellants in this case.
The general rule for interpreting a will is that "the
intention of the testator as gathered from the four corners of
the instrument must prevail unless it is contrary to some
positive provision of law or public policy."
Ky., 386 S.W.2d 271, 273 (1965).
Graham v. Jones,
Where the testator's intentions
are not obvious, however, courts resort to certain rules of
construction.
Several rules of construction favor vesting of a
remainder interest at the testator's death.
Pickett, 314 Ky. 125, 234 S.W.2d 489 (1950).
See Gatewood v.
However, it has
been observed that a gift to a named person is indicative of an
intention to vest the remainder immediately.
Estates §309 (2000).
28 Am. Jur. 2d
Moreover, a remainder gift to those related
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by blood or marriage to the testator should be construed in a
manner to prevent the disinheritance of remaindermen who may
happen to die before the termination of the precedent estate.
28
Am. Jur. 2d Estates § 279 (2000).
The appellants cite Aufenkamp v. First Kentucky Trust
Co., Ky. App., 705 S.W.2d 943 (1986), in support of the
proposition that a beneficiary's interest vests immediately upon
the testator's death where there is no language requiring
survivorship attached to the provision devising the remainder
after termination of the life estate.
Aufenkamp holds only the
enjoyment of the interest is said to be postponed -- not the
actual vesting of the interest.
The appellants also rely upon Fugazzi v. Fugazzi's
Committee, 275 Ky. 62, 120 S.W.2d 779 (1938).
In that case, the
court was faced with the effect of the words "upon the death of
my wife" as to the vesting of a remainder interest under a will.
The court stated as follows:
This expression is equivalent to "when my
wife dies" or "at the death of my wife," and
such similar expressions, which in a will in
the absence of anything showing a contrary
intention, have been construed as merely
deferring the time for enjoyment in
possession of the property composing the
remainder, and not to defer the vesting of
the remainder or creating a condition which,
upon its happening, would divest the
remaindermen of title.
Id., 120 S.W.2d at 782.
Thus, unless some contrary interest is
shown, it is clear that vesting occurs upon the death of a
testator as to a remainder interest which is to follow a life
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estate in a provision using language such as "at" or "after" the
death of the life tenant.
We find no clearly expressed desire in the will at
issue here for suspending or deferring the time of vesting of the
interest created.
We agree that the words "at my mother's death"
as used by the testator in her will refer simply to the time of
distribution or enjoyment of the interest and rather than its
actual vesting.
Moreover, we are not persuaded that the
trustees' power of sale as outlined in the trust instrument is of
any consequence.
Where a trust provides that the trustee may
invade the entire corpus of the estate if necessary to support
the life tenant, the persons named have a vested remainder in the
corpus of the trust merely subject to defeasance if the entire
corpus is consumed.
28 Am. Jur. 2d Estates § 309 (2000).
We believe that the trial court's construction of the
will and testamentary trust were clearly erroneous.
Therefore,
we reverse the judgment of the Bullitt Circuit Court and remand
the cause for further proceedings consistent with the appellants'
petition.
ALL CONCUR.
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BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE MILDRED
EDDINGTON:
Gregory Ward Butrum
Louisville, KY
John E. Spainhour
Shepherdsville, KY
BRIEF FOR APPELLEE MARTHA L.
EDDINGTON:
Norman R. Lemme
Shepherdsville, KY
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