STRATTON (CAROLYN), ET AL. VS. HENSON (BOBBY STEELE), ET AL.Annotate this Case
RENDERED: DECEMBER 31, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CAROLYN STRATTON; KENNETH
STRATTON; HENRY HENSON;
JACQUELINE HENSON; JOANN
CAUDILL; JAMES D. CAUDILL;
JACKIE HENSON; HANNAH
CAMPBELL; HAROLD E. HENSON;
AND FRANCES HENSON
APPEAL FROM LINCOLN CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 07-CI-00285
BOBBY STEELE HENSON (BEING
THE SAME PERSON AS ROBERT
STEELE HENSON); NANCY FLETCHER
HENSON; TAMMY MAPLES; LARRY
MAPLES; MARK HENSON; REGINA A.
HENSON; BILLY HENSON; BEN
HENSON; WANDA HENSON;
JOHNNY MACK HENSON; AND
** ** ** ** **
BEFORE: STUMBO AND THOMPSON, JUDGES; GUIDUGLI,1 SENIOR
GUIDUGLI, SENIOR JUDGE: Carolyn Stratton, Henry Henson, JoAnn Caudill,
Jackie Henson, Hannah Campbell, and Harold E. Henson (Appellants) appeal from
a declaratory judgment determining the parties’ interests in the devise of real
property. Appellants argue that the trial court erred by: (1) determining that the
will provision constituted a vested remainder rather than a class gift; and (2) failing
to resolve an alleged anomaly in the will provision. We affirm.
Lillie Phillips Henson died testate in Lincoln County, Kentucky, in
1977. At the time of her death, Lillie Henson owned a parcel of real estate
containing 107.66 acres, which is the subject of the present controversy. Item #3
of Lillie Henson’s will states:
I give, bequeath, and devise any real estate which I may
own at the time of my death to my son, Henry Clay
Henson for his life time, and my daughter, Zora Henson
for her life time, on the condition that they should choose
to remain unmarried. At their deaths or marriages, the
remainder of my real estate is to be divided absolutely
and in fee simple, share and share alike among my
children who are: Henry Clay Henson, Zora Henson,
Mack Henson, Luther Henson, Hannah Campbell, Harold
E. Henson, and Robert Steele Henson, and in the event
the remaining children above set out agree with these
unmarried children, the property may be sold and Henry
Clay Henson is to have one-third of the proceeds
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
therefrom plus his child’s share of the remaining amount.
In the event either of my children are dead at the time my
unmarried children shall die or marry, the children of any
deceased child is to take the share of the parent.
Henry Clay Henson and Zora Henson were life tenants with purported
remainder interests in the property. Henry Clay Henson died testate in 1986 and
devised his interest in the property to Zora Henson. Zora Henson died testate in
2007 and devised her interest in equal portions to her brother, Robert (Bobby)
Steele Henson, and her niece, Tammy Maples Henson.
Mack Henson died intestate prior to the death of Zora Henson. Mack
Henson’s interest in the property passed equally to his three children, Ben Henson,
Johnny Mack Henson, and Wayne Henson. Wayne Henson died prior to Zora
Henson and his interest in the property passed equally to his children, Mark
Henson and Billy Henson.
Luther Henson died intestate in 1972. His interest in the property
passed equally to his children, Carolyn Stratton, Henry Henson, JoAnn Caudill,
and Jackie Henson.
Lillie Henson’s remaining children, Hannah Campbell, Harold
Henson, and Bobby Steele Henson, are still living.
The Appellants sought a declaratory judgment in Lincoln Circuit
Court determining the parties’ interests in the property. The trial court found that
Lillie Henson’s will devised her interest in the property equally among all seven of
her children in fee simple as tenants-in-common. Specifically, the trial court
(a) Tammy Maples Henson (undivided 1/7th interest)
(b) Ben Henson (undivided 1/21st interest)
(c) Johnny Mack Henson (undivided 1/21st interest)
(d) Mark Henson (undivided 1/42nd interest)
(e) Billy Henson (undivided 1/42nd interest)
(f) Carolyn Stratton (undivided 1/28th interest)
(g) Henry Henson (undivided 1/28th interest)
(h) JoAnn Caudill (undivided 1/28th interest)
(i) Jackie Henson (undivided 1/28th interest)
(j) Hannah Campbell (undivided 1/7th interest)
(k) Harold Henson (undivided 1/7th interest)
(l) Bobby Steele Henson (undivided 2/7ths interest.
This appeal followed.
Appellants argue that the language of Lillie Henson’s will created a
class gift to her children or their issue who survived the life tenants, Henry Clay
Henson and Zora Henson. Appellants further argue that the estates of the life
tenants should have been excluded from any interest in the remainder.
In Kentucky, the fundamental or “polar star” rule governing the
interpretation of wills is that the intention of the testator is controlling absent some
illegality. The intention of the testator determines whether a testamentary gift to
several persons is made to them as a class rather than as individuals. Hardin v.
Crow, 310 Ky. 814, 222 S.W.2d 842, 844 (1949). A testamentary gift is one to a
class where the members of a class are uncertain at the time of gift and the class is
capable of future change. Cromer v. Acton, 298 S.W.2d 20, 22 (Ky. 1957).
Additionally, “[w]here a gift is made to beneficiaries by name, the gift is prima
facie to individuals, even though the persons designated may constitute a natural
class, or possess some quality in common.” Church v. Gibson, 286 S.W.2d 91, 92
(Ky. 1956). The cases of Combs v. First Security National Bank & Trust Co., 431
S.W.2d 719 (Ky. 1968), and Carroll v. Carroll’s Ex’r, 248 Ky. 386, 58 S.W.2d
670 (1933), address testamentary gifts similarly worded to the language at issue in
the present case with contrary results.
It is rare indeed that courts have identical wills to
construe, although the same confusing words may be
presented. As bearing on the construction of wills, in
Muir v. Richardson, 201 Ky. 357, 256 S.W. 727, 730, we
borrowed from an opinion of the United States Supreme
Court (Home Tel. & Tel. Co. v. Los Angeles, 211 U.S.
265, 29 S.Ct. 50, 53 L.Ed. 176) to say: “No case, unless it
is identical in its facts, can serve as a controlling
precedent for another, for differences, slight in
themselves, may, through their relation with other facts,
turn the balance one way or the other.”
Jennings v. Jennings, 299 Ky. 779, 187 S.W.2d 459, 465 (1945).
From a review of the entirety of Lillie Henson’s will, we find that
item 3 devised the property to individuals rather than as a class. The children were
set out by name and were fixed at the time of the gift. There was no language
indicating an intention to include any possible afterborn children. The sentence
“[i]n the event of either of my children are dead at the time my unmarried children
shall die or marry, the children of any deceased child is to take the share of the
parent” is neither superfluous nor indicative of a class gift. The sentence merely
directs that the children of any child who predeceased the life tenants shall take
their parent’s share. The remainder interest was vested at the time of Lillie
Henson’s death. “Vested remainders are those by which a present interest passes
to the party, though to be enjoyed in future, and by which the estate is invariably
fixed to a determinate person after a particular estate is spent.” Carroll, 58 S.W.2d
at 673. The language of the will clearly states that the life tenants, Henry Clay
Henson and Zora Henson, were included among the remaindermen. The sentence
contemplating the sale of the property supports this intention where it is stated that
if the property was sold with the agreement of the life tenants, then Henry Clay
Henson would receive both 1/3 of the proceeds of the sale in addition to his 1/7th
Although Lillie Henson’s will may have created an anomalous
situation because the life tenants would be able to devise their share of the
remainder before the death of the last surviving life tenant while the other
remaindermen were precluded from so devising, we find that this situation was the
testator’s intention and was not unreasonable. Therefore, this factual situation is
distinguishable from Combs, 431 S.W.2d at 719. The context of Lillie Henson’s
will as a whole clearly indicated her abiding concern to set apart and provide for
her unmarried children, Henry Clay Henson and Zora Henson. By devising these
children life estates on the condition that they remain unmarried, Lillie
contemplated that they would possibly die without children to substitute in their
share of the remainder. Lillie Henson simply chose not to place the same
restriction for devising their share of the remainder on Henry Clay Henson and
Zora Henson that she placed upon the other children.
Accordingly, the judgment of the Lincoln Circuit Court is affirmed.
BRIEFS AND ORAL ARGUMENT
J. Robert Lyons, Jr.
BRIEF FOR APPELLEES:
Jeffrey C. Ralston
ORAL ARGUMENT FOR
Jeffrey C. Ralston