MARTHA ELLEN CASEY, MICHAEL SEAN MATZKE v. ROBERT STEVEN NUNN, EXECUTOR OF THE ESTATE OF MICHAEL VERNON MORSE; RUTH LAMB; BOBBIE JO FOX; FREDERICK MORSE; BEVERLY HAYES; JULIA MYERS; ANDREA DAVIS; MILDRED KING; TONY MORSE; SUSAN OVERBECK; PATRICIA FELOCK; MARGUERITE PEDEN; ELIZABETH GRAY; GARY C. MORSE
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RENDERED: MAY 3, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001911-MR
MARTHA ELLEN CASEY,
MICHAEL SEAN MATZKE
v.
APPELLANTS
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 00-CI-00351
ROBERT STEVEN NUNN, EXECUTOR
OF THE ESTATE OF MICHAEL VERNON MORSE;
RUTH LAMB;
BOBBIE JO FOX;
FREDERICK MORSE;
BEVERLY HAYES;
JULIA MYERS;
ANDREA DAVIS;
MILDRED KING;
TONY MORSE;
SUSAN OVERBECK;
PATRICIA FELOCK;
MARGUERITE PEDEN;
ELIZABETH GRAY;
GARY C. MORSE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND TACKETT, JUDGES.
APPELLEES
MILLER, JUDGE:
Martha Ellen Casey and Michael Sean Matzke bring
this appeal from a August 15, 2001 judgment of the Christian
Circuit Court.
We affirm.
In March of 2000, Robert Steven Nunn, the executor of
the estate of Michael Vernon Morse, filed a petition for
declaratory judgment in the Christian Circuit Court.
Kentucky
Revised Statutes (KRS) 418.040.
Morse's
Morse died testate.
residuary beneficiary was his mother, one Dorothy M. Morse, who
predeceased him.
Appellants are Morse's biological children.
They were adopted by their stepfather with Morse's consent in
1974.
Morse voluntarily terminated his parental rights at that
time.
In his will, Morse, however, specifically recognized
appellants as his children.
Morse created a $100,000.00 trust,
naming appellants as beneficiaries.
The circuit court entered
partial summary judgment on February 6, 2001.
Therein, the
circuit court concluded that appellants were not entitled to take
under the residue clause, as the adoption severed appellants'
legal right to inherit from Morse.
August 15, 2001.
Final judgment was entered on
This appeal follows.
Appellant asserts that the circuit court erred by
entering partial summary judgment.
Summary judgment is proper
where there exists no material issue of fact and movant is
entitled to judgment as a matter of law.
Ky. R. Civ. P. (CR)
56; Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807
S.W.2d 476 (1991).
-2-
Appellants specifically contend that extrinsic evidence
should have been admitted to prove Morse's intent with respect to
the residue of his estate in the event his mother failed to
survive him.
Appellants argue that:
In this case, a proper reading of [Morse's]
will in light of the anti-lapse statute
[Kentucky Revised Statutes 394.400] and the
extrinsic evidence of record leads to the
unmistakable conclusion that Ellen and Sean
are the appropriate beneficiaries of
[Morse's] residuary estate. In the will,
[Morse] expressly defines “my children” to
include Sean and Ellen. Likewise, the
extrinsic evidence indicates that [Morse]
looked upon Ellen and Sean as his “children”
for all purposes. Accordingly, there is
little question but the term “issue” of
[Morse's] mother as used in the anti-lapse
statute must include Ellen and Sean.
KRS 394.400, the anti-lapse statute, states as follows:
If a devisee or legatee dies before the
testator, or is dead at the making of the
will, leaving issue who survive the testator,
such issue shall take the estate devised or
bequeathed, as the devisee or legatee would
have done if he had survived the testator,
unless a different disposition thereof is
made or required by the will.
Because Morse otherwise viewed appellants as his
children in his will, appellants believe that the state of
Kentucky should likewise view them as the issue of Morse's mother
under KRS 394.400.
We disagree.
It is well established in
Kentucky that adoption severs the biological children's rights of
inheritance.
See Pyles v. Russell, Ky., 36 S.W.3d 365 (2000).
Under Kentucky law, appellants are not considered the issue of
Morse or of his mother.
We reject appellants' argument that they
are entitled to the residue of the estate by operation of KRS
-3-
394.400.
As such, we are of the opinion that the circuit court
properly entered partial summary judgment.
For the foregoing reasons, the judgment of the
Christian Circuit Court is affirmed.
GUIDUGLI, JUDGE, CONCURS.
TACKETT, JUDGE, DISSENTS.
BRIEFS FOR APPELLANTS:
BRIEF FOR APPELLEES:
Jack N. Lackey, Jr.
Hopkinsville, Kentucky
John T. Soyars
Hopkinsville, Kentucky
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