LOUISE HOWELL v. DARRELL A. HERALD, EXECUTOR OF THE ESTATE OF JOHN R. TURNER
Annotate this Case
Download PDF
RENDERED: May 23, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000387-MR
LOUISE HOWELL
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 98-CI-03686
v.
DARRELL A. HERALD, EXECUTOR
OF THE ESTATE OF JOHN R. TURNER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND TACKETT, JUDGES.
DYCHE, JUDGE.
We have considered the record below, the briefs
of the parties, and the oral argument.
We find that the opinion
of the trial court correctly and adequately sets out the
applicable facts of this case, applies the correct law to those
facts, and reaches the correct result.
We adopt that opinion,
in part, as our own.1
1
Footnote 1 has been omitted from the text of the circuit court’s opinion.
The Decedent, John Raymond Turner
(“Turner”) was a prominent and wealthy
Breathitt County businessman who owned,
among other assets, real property in a
number of Kentucky counties, including
Fayette County and in Florida. The
Defendant Louise Howell (“Howell”) was
Turner’s niece. In 1987, Turner established
a comprehensive estate plan through the
execution of a will. In that will, he left
$1 to each of his relatives, including
Howell. All of the assets of Mr. Turner’s
estate were bequeathed to the Marie R. and
Ervin Turner Educational Foundation (the
“Foundation”), which was created in his
Will.
Apparently, in 1996, Turner began
considering the possibility of making an
inter vivos gift of real property to Howell.
To that end he spoke with this attorney,
George Fletcher (“Fletcher”), about how such
a gift might be made while allowing Turner
to retain control over the property subject
to the gift as long as possible. In early
1997, Turner underwent coronary artery
surgery, and later in that year, he was
diagnosed with untreatable lung cancer.
According to the deposition testimony
of George Fletcher (which the Court takes as
true for purposes of considering the
Estate’s Motion), in January, 1998, Turner
discussed making an inter vivos gift to
Howell of certain pieces of real property by
means of power-of-attorney that Turner would
give Fletcher shortly before Turner’s death.
On February 26, 1998, Turner was
admitted to St. Joseph’s Hospital in
Lexington. A few days thereafter Fletcher
visited Turner in the hospital and brought
Turner a power-of-attorney prepared pursuant
to their January conversation. Turner’s
response was to postpone the issue, saying
he would be going home and would address the
matter then. By March 4, 1998, Turner had
-2-
been informed his condition would not
improve, and he was making the decision
whether to die at the hospital or at home in
Jackson. On that date, Fletcher went to the
hospital and again offered Turner the
opportunity to sign the power-of-attorney.
The only evidence of what was said on the
occasion of the signing the Power of
Attorney, comes from Fletcher who testified
that he said, “‘John, this is the power of
attorney that we talked about. Do you want
me to make the deeds with this?’ and he
said, ‘Yes, I do.’ I can’t say that he
quoted yes, I do, but he said, ‘Yes, that is
what I want you to do’ or something like
that, in an affirmative response, and that
he and I were connecting and that is what he
wanted to do.” The deeds were then prepared
by Fletcher, and they were executed by him
as Turner’s attorney-in-fact during business
hours on March 6, 1998. Turner died two
days later on March 8, 1998.
According to Fletcher, the deeds
remained in his possession, incomplete and
unsuitable for recordation, until after
Turner’s death. By coincidence, Fletcher
went to the hospital to see Turner on March
8, 1998 shortly after Howell had been
notified of Turner’s death. At that time,
and for the first time, Howell was informed
of Turner’s attempted inter vivos gift to
her of real property and of the deeds, which
were in Fletcher’s possession. Howell
executed the fair market value certificates
on the deeds on March 13, 1998, and they
were subsequently recorded.
Based on the above facts, the issue
before the Court on the cross-motions for
summary judgment is whether the deeds were
legally delivered to Howell prior to
Turner’s death to complete an inter vivos
gift.2
2
In her memoranda and in the argument of her counsel, Howell has urged that
the Court should not apply the law of inter vivos gifts to the resolution of
this issue. However, Howell does not deny that the conveyances by which she
-3-
The requirements for a valid inter
vivos gift are set forth in numerous
Kentucky cases, among them Gernert v.
Liberty Nat. Bank & Trust Co., 284 Ky. 575,
[579,] 145 S.W.2d 522, 525 (1940):
In those cases—-and numerous others
cited in our opinions therein—-we
set forth the facts necessary to
constitute an inter vivos gift,
which are: (a) that there must
be a competent donor; (b) an intention on his part to make the
gift; (c) a donee capable to take
it; (d) the gift must be complete,
with nothing left undone, (e) the
property must be delivered and go
into effect at once; and (f)
the gift must be irrevocable.
The delivery of an inter vivos gift may be
“actual, symbolical or constructive.”
Pikeville Nat. Bank & Trust Co. v. Shirley,
281 Ky. 150, [156,] 135 S.W.2d 426, 430
(1939). Since real property cannot itself
be physically delivered, the delivery of a
gift of real property is typically made
symbolically through the delivery of the
deed to the property. The delivery of the
deed may be “actual” (by physical delivery
to the donee or grantee) or “constructive”
(by delivery to one who serves as the agent
of the donee or grantee). In either event,
the requisite donative intent must be
claims to have received the real property from Turner were, in fact, inter
vivos gifts. Consequently, the Court can discern no valid reason to exclude
the law of inter vivos gifts from its consideration. Moreover, the Court
notes, that most, if not all, of the cases on which Howell relies involve
inter vivos gifts of real property.
To the extent they may apply to the consideration of a motion for summary
judgment, the Court also recognizes the burden placed on the proponent of an
inter vivos gift to prove that gift by clear and convincing evidence. Hale
v. Hale, 189 Ky. 171, 224 S.W. 1078(1920); Combs v. Roark’s Adm’r, 221 Ky.
679, 299 S.W. 576 (1927). Under the circumstances of this case, however, the
Court believes that the outcome is the same regardless of the application of
that enhanced standard or the placement of the burden of proof.
-4-
accompanied by some act by which the
donor/grantor irrevocably relinquishes
control over the subject matter of the gift.3
Kirby v. Hulette, 174 Ky. 257, 192 S.W. 63
(1917). This is true whether the inter
vivos gift is one of personal property or
real property. Rand v. Rand, 132 F. Supp.
929 (E.D. Ky. 1955)(aff’d 234 F.2d 631 (6th
Cir. 1956)).
In this case, Turner signed the powerof-attorney making Fletcher his attorney-infact on March 4, 1998. At that time
Fletcher was also Turner’s attorney-at-law.
Fletcher prepared the deeds and signed them
as Turner’s attorney-in-fact on March 6,
1998. He did not deliver them to Howell or
to anyone else for her benefit prior to
Turner’s death on March 8, 1998. As noted
above, Howell was unaware of the deeds prior
to Turner’s death, and they remained in
Fletcher’s sole possession until after
Turner’s death.
Howell argues that Fletcher’s continued
possession of the deeds inured to Howell’s
benefit and constituted a constructive
delivery of the deeds to Howell. The Court
cannot accept that position because, as a
matter of law, Fletcher was Turner’s agent,
both as his attorney–in-fact and his
attorney-at-law. Reily v. Fleece, 259 Ky.
330, 82 S.W.2d 341 (1935), McAlister v.
Whitford, Ky., 365 S.W.2d 317 (1962).
As [Turner’s] agent, Fletcher’s
continued possession of the deeds could not
constitute a relinquishment of control by
Turner. Fletcher’s Affidavit, tendered on
November 16, 2001, states that Turner “never
mentioned such a reservation” to rescind the
deeds. It does not say, however, that
Turner ever relieved Fletcher of his role as
3
For purposes of considering the Estate’s motion, the Court assumes that
Turner had the necessary donative intent.
-5-
Turner’s agent. Howell urges that the
decisions of the Kentucky Court of Appeals
in Sullenger v. Baker, [296] Ky. [240], 176
S.W.2d 382 (1943) and Moore v. Moore, Ky.,
239 S.W.2d 987 (1951) support her position.
The Court disagrees. In both Sullenger and
Moore, the recipient of the deeds was not in
any legal agency relationship with the
donor. Consequently, it was possible in
those cases for the recipient to act solely
as the agent of the donee in holding the
deeds. That was not the case with Mr.
Fletcher who was Turner’s attorney-at-law
and attorney-in-fact.
The Court also notes that in Cartwright
v. Bishop, Ky., 298 S.W.2d 14 (1957), the
Court appears to have focused on the so
called “common depository” cases as the
prime example of successful constructive
delivery scenarios. While not dispositive
of this case in any way, the Court views the
reference in Cartwright as indicating a
possible retreat from cases such as
Sullenger and Moore and what appears to be
prior efforts of the appellate courts to
save a gift, if at all possible, through the
liberal application of constructive delivery
theories.
The Court believes the situation in
this case is more analogous to that found in
Suter v. Suter, 278 Ky. 403, 128 S.W.2d 704
(1939).4 There, the deed was placed with the
donor’s attorney. The Court found that the
attorney was the agent of the donor, and the
donor had not relinquished control of the
deed.
4
The Court recognizes the dicta in Howard v. Arnett’s Adm’r, [294] Ky. [167],
171 S.W.2d 228 (1943) and the implication that Howell argues should be drawn
from Sasseen v. Farmer, [179] Ky. [632], 201 S.W. 39 (1918) to the effect
that in limited circumstances delivery can take place where the grantor
himself retains control of the deed but openly and clearly indicates he is
holding the deed for someone else’s benefit, thus constituting himself the
grantee’s agent. However, the Court finds that Fletcher’s position as the
agent of Turner makes those cases inapposite to this one.
-6-
The Court also finds the “common
depository” cases such as Noffsinger v.
Noffsinger, 303 Ky. 344, 197 S.W.2d 785
(1946) to be inapposite to the circumstances
of this case.
Howell argues that the statements made
by Turner to Fletcher in their conversations
during the months prior to Turner’s signing
of the power-of-attorney and the preparation
of the deeds can provide the necessary
expression of an intent to deliver the deeds
and a relinquishment of control over the
deeds to complete the inter vivos gift. The
Court can find no support for that
proposition in any of the cases cited by
Howell. Further, even if statements made
prior to the existence of the deeds
themselves were competent to show an
intention to deliver the unprepared deeds,
the Court believes that under cases such as
Kirby v. Hulette, supra; Fitzpatrick v.
Layne, 291 Ky. 523, 165 S.W.2d 13 (1942);
and other authorities cited by the Estate,
any expression of an intent to deliver the
deeds would still have to be accompanied by
a relinquishment of control over the deeds
themselves. The Court can find no such
relinquishment of control by Turner in this
case. Indeed, because of the agency
relationship between Fletcher and Turner,
the Court believes that, as a matter of law,
Fletcher’s continued possession of the deeds
cannot possibly be construed to be a
constructive delivery of the deeds to
Howell.
For the above reasons, the Court finds
that the deeds which were attached to the
Complaint in this matter as Exhibits G
through J and which are recorded at Deed
Book 3106 page 2199, Sarasota County
(Florida) Court Clerk’s office; Deed Book
487 page 354, Madison County (Kentucky)
Clerk’s office; Condo Deed Book 37 page 41
Fayette County (Kentucky) Clerk’s office;
and Deed Book 186 page 182, Breathitt County
-7-
(Kentucky) Clerk’s office were not delivered
prior to Turner’s death and that any
attempted inter vivos gift of the real
property represented by those deeds failed.
The judgment of the Fayette Circuit Court is affirmed.
TACKETT, JUDGE, CONCURS.
BARBER, JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
Respectfully, I dissent. On appeal, Louise Howell
stresses the central importance of her uncle’s intent to give
her the gift of the real property prior to his death.
In the
majority opinion, the court focuses on the issue of whether the
documents were actually received by Howell before her uncle’s
death.
This approach does not reflect the purpose of the law
permitting inter vivos gifts.
The uncontroverted facts in the record show that,
prior to his death, decedent Turner retained counsel, George
Fletcher, to prepare a deed transferring the real property from
Turner to Ms. Howell.
Turner estate.
Fletcher was not the executor of the
Turner also instructed Fletcher to prepare a
power of attorney form allowing Fletcher to execute the deeds
granting the real property to Howell just prior to Turner’s
death.
Fletcher executed the deeds according to Turner’s
instructions, pursuant to the power of attorney granted him by
Turner, and prior to Turner’s death.
-8-
Immediately after Turner’s death, Fletcher informed
Howell of the inter vivos gift of real property made to her by
Turner.
Howell took possession of the gift, and properly
recorded the deeds. The executor of Turner’s estate admits that
Turner executed the power of attorney in favor of Fletcher.
The
executor also admits that Fletcher executed the deeds pursuant
to the power of attorney.
Despite these uncontroverted facts,
the executor contends that Howell did not take possession of the
deeds until after Turner’s death, and for this reason there was
no valid inter vivos gift.
The majority concedes that a gift of a property deed
may be made constructively, by giving the deed to one serving as
the agent of the donee.
The majority argues, however, that
Fletcher was Turner’s agent, and that no gift was made while the
deeds were in Fletcher’s possession.
The majority asserts that
because Fletcher held the deeds, Turner had not relinquished
control of the property.
Kentucky law is clear in holding that where a donor
voluntarily loses unfettered control over an asset, a valid
inter vivos gift has been made.
767, 770 (1927).
Siter v. Hall, Ky., 294 SW2d
This is so even where enjoyment of the gift by
the donee is postponed, in accordance with the donor’s intent,
until after the donor’s death.
Id.
This is generally
recognized in cases where the corpus of a trust cannot be
-9-
accessed by the donee until after the donor’s death.
at 770.
294 SW2d
Similarly, the beneficiary of a life insurance policy
is held to have been given a valid inter vivos gift of the
policy proceeds, even though the proceeds cannot be claimed by
the beneficiary until the insured’s death.
See:
Thompson’s
Ex’x v. Thompson, Ky., 226 SW 350, 351 (1920).
In construing documents relating to a donor’s estate,
the court must “effectuate the lawful intention of the donor.”
Citizen’s Fidelity Bank & Trust Co. v. Bernheim Foundation, Ky.,
205 SW2d 1003, 1006 (1947).
Action showing relinquishment of
control over the asset in favor of the donee creates a valid
inter vivos gift.
Baldwin’s Ex’r v. Barber’s Ex’rs, Ky., 151 SW
686, 687 (1912). This is so even where the agent represents the
donor as well as the heir.
Id.
Delivery of a trust corpus to a
trustee is sufficient to create a valid inter vivos gift of the
trust corpus to the trust beneficiaries, even where the
beneficiaries do not know that the trust exists.
Goodan, Ky., 211 SW 423, 424 (1919).
Goodan v.
Delivery must be
determined “according to the nature and character of the thing
given. . . .”
(1954).
Bryant’s Adm’r v. Bryant, Ky., 269 SW2d 219, 221
Delivery does not require an actual handing of the
property to the donee, but can be accomplished by any act
showing a relinquishment of ownership to the property.
-10-
Id.
Delivery of the asset to a third party to give to the
donee creates a valid inter vivos gift.
Pikeville Nat. Bank &
Trust Co. v. Shirley, Ky., 135 SW2d 426, 429 (1939).
Because
Turner gave Fletcher his power of attorney and specific
instructions to execute a deed in favor of Howell, which
Fletcher did, a valid inter vivos gift was made. The actions of
the donor, the actions of the attorney, and the deeds in the
name of Howell, who is a natural object of Turner’s affection,
all support this finding.
241, 244 (1997).
Rakhman v. Zusstone, Ky., 957 SW2d
Fletcher was the agent of Turner only insofar
as he was required to sign the deeds over to Howell prior to
Turner’s death, which he did.
At that point, Fletcher was
simply holding the assets until the time came to disburse them.
For this reason, I would find that a valid inter vivos gift was
made.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert F. Houlihan, Jr.
David T. Royse
Hanly A. Ingram
Stoll, Keenon & Park, LLP
Lexington, Kentucky
Karen J. Greenwell
Richard C. Ward
LaToi D. Mayo
Wyatt, Tarrant & Combs, LLP
Lexington, Kentucky
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Robert F. Houlihan, Jr.
Stoll, Keenon & Park, LLP
Lexington, Kentucky
Karen J. Greenwell
Wyatt, Tarrant & Combs, LLP
Lexington, Kentucky
-11-
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.
