EULAH SLONE, ADMINISTRATRIX OF THE ESTATE OF GENE DAVID SLONE, DECEASED v. AVERY CASEY AND SHIRLEY CASEY
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RENDERED:
MAY 19, 2006; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002348-MR
EULAH SLONE, ADMINISTRATRIX OF THE
ESTATE OF GENE DAVID SLONE, DECEASED
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 00-CI-00536
v.
AVERY CASEY AND
SHIRLEY CASEY
APPELLEES
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
TAYLOR, JUDGE:
Eulah Slone, Administratrix of the Estate of
Gene David Slone, deceased, brings this appeal from an October
27, 2004, judgment of the Pike Circuit Court adjudicating the
boundary of certain real property.
1
We dismiss.
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
On April 20, 2000, Gene David Slone and Eulah Slone
filed a complaint seeking to resolve a boundary line dispute
with their neighbors, Avery Casey and Shirley Casey.
Gene and
Eulah had acquired the disputed property as tenants in common by
deed dated March 8, 2000.2
Gene passed away.
During the pendency of the action,
On July 8, 2004, Eulah, as administratrix of
Gene’s estate, filed a motion to revive the action “in the name
of the decedent’s personal representative . . . .”3
On July 19,
2004, the circuit court entered an order reviving the action in
the name of “Eulah Slone, Administratrix of the Estate of Gene
David Slone, deceased.”
On October 27, 2004, the circuit court
entered its judgment adjudicating the boundary dispute between
the parties in the favor of the Caseys.
Being unsatisfied with
the judgment, Eulah, in her capacity as administratrix of Gene’s
estate, filed a notice of appeal in this Court.
For the reasons
hereinafter elucidated, we dismiss this appeal for failure to
name an indispensable party.
It is well-established that failure to name an
indispensable party in the notice of appeal results in dismissal
of the appeal.
Ky. R. Civ. P. 19.02; City of Devondale v.
2
The deed reflects that Gene Slone and Eulah Slone acquired title as husband
and wife, without reference to any survivorship rights. As such, they took
title as tenants in common. KRS 381.050(1).
3
In June 2004, Avery Casey and Shirley Casey filed a motion to revive the
action, naming Eulah and her three children as the heirs of Gene. If Gene
died intestate, the children would have acquired an ownership interest in
Gene’s one-half interest in the property.
-2-
Stallings, 795 S.W.2d 954 (Ky. 1990).
The failure to name an
indispensable party in the notice of appeal is considered a
jurisdictional defect.
Id.
The notice of appeal named Eulah Slone, Administratrix
of the Estate of Gene David Slone, as the sole appellant.
Upon
death of an owner of real property, the title to said property
passes directly to the heirs at law or to the beneficiaries
under a will; it does not pass through the estate.
Wingfield, 816 S.W.2d 899 (Ky. 1991).
Wood v.
As real property passes
as a matter of law to the heirs of the estate or beneficiaries
under a will, the personal representative of the estate has no
interest in or title to the real property.
Rather, the heirs or
the beneficiaries are considered the real parties in interest to
a proceeding involving the real property.
S.W.2d 79 (Ky. 1975).
Levin v. Ferrer, 535
Accordingly, we are of the opinion that
Eulah, in her capacity as administratrix of Gene’s estate, has
no interest in or title to the disputed real property.
Upon
Gene’s death, his interest in the disputed property passed as a
matter of law to his heirs or beneficiaries.4
Additionally, we believe Eulah is an indispensable
party to this appeal.
Eulah is a co-owner of the property and
owned an undivided one-half interest in the subject property at
4
We are unable to determine from the record whether Gene died testate or
intestate. By naming Eulah as administratrix of his estate, we assume that
Gene died intestate; however, such is only an inference from the use of the
term “administratrix.”
-3-
the time the action was commenced and may have acquired an
additional interest upon Gene’s death.5
Eulah was an original
plaintiff to this action and is so named in the circuit court’s
judgment.
As Eulah in her individual capacity is an
indispensable party, an appeal could not be taken without naming
Eulah in her individual capacity, and the notice of appeal is,
therefore, defective on its face.
Now, therefore be it ORDERED, that Appeal No. 2004-CA002348-MR be DISMISSED for failure to name an indispensable
party.
ALL CONCUR.
/s/ Jeff S. Taylor________
JUDGE, COURT OF APPEALS
ENTERED: May 12, 2006
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
James P. Pruitt, Jr.
PRUITT & deBOURBON
Pikeville, Kentucky
Lawrence R. Webster
Pikeville, Kentucky
5
Had Gene David Slone and Eulah Slone owned their property with right of
survivorship, Eulah would have acquired ownership of the entire property upon
Gene’s death as a matter of law.
-4-
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