THE ESTATE OF CHRISTOPHER DUNCAN () VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: DECEMBER 12, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
THE ESTATE OF CHRISTOPHER DUNCAN
APPEAL FROM HANCOCK CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
INDICTMENT NO. 99-CR-00034
COMMONWEALTH OF KENTUCKY
REVERSING AND REMANDING
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES.
DIXON, JUDGE: Appellant, the Estate of Christopher Duncan, appeals from an
order of the Hancock Circuit Court forfeiting 25 guns seized by police from
decedent, Christopher Duncan. Finding that the circuit court lacked jurisdiction,
In 1999, Christopher Duncan and his wife, Rhonda Duncan, were
indicted by a Hancock County grand jury on various drug charges. At the time of
their arrest, Hancock County sheriff’s deputies seized twenty-five long arm rifles.
Duncan died on July 6, 2001, without resolution of the criminal offenses.
Following his death, decedent/defendant’s counsel filed a motion on November 6,
2001, and again on October 6, 2003, to return the seized property. No ruling was
apparently made on either motion. In the interim, however, Rhonda entered into a
pretrial diversion agreement on September 5, 2003, with one of the conditions
being that, “All seized property be forfeited to the Hancock County Sheriff’s
On March 24, 2004, the Commonwealth moved that the property be
“forfeited to the Hancock County Sheriff’s Department except the drugs and
paraphernalia are to be destroyed.” Appellant filed a response objecting to the
forfeiture on the grounds that decedent/defendant had never been convicted. On
April 15, 2004, the circuit court entered an order granting the forfeiture motion.
On appeal, a panel of this Court, in an unpublished opinion, reversed
the lower court, holding:
Duncan’s estate argues, and the Commonwealth agrees,
that, pursuant to KRS 527.060, a conviction is required
before property can be forfeited to the state.
Consequently, the Commonwealth concedes that “the
guns should be returned to [Duncan’s] estate in
accordance with the statute.”
Duncan v. Commonwealth of Kentucky, 2004-CA-000832-MR (May 19, 2006).
After the matter was remanded, Appellant filed a motion to return the
seized property in compliance with this Court’s opinion. During a subsequent
hearing, the Commonwealth objected to the return because a condition of
Rhonda’s pretrial diversion was that all seized property was to be forfeited to the
sheriff’s department. Following a hearing, the circuit court denied Appellant’s
motion to return the seized property, noting that it was not “blatantly disregarding
the Court of Appeals’ order, but [was] rather providing an explanation and
complete record that the Court of Appeals did not have before it.” The circuit
court further stated,
[T]he Decedent/Defendant argued that this Court
must obey the Court of Appeals Order and return the
guns to the estate being administered for the
The Commonwealth, on the other hand, contended
that if the guns were returned to the estate, then the
Administrator had a duty to turn them over to Rhonda
Duncan, the surviving widow and her two children as
heirs. In turn, Rhonda Duncan had a duty to forfeit them
to the Hancock County Sheriff’s Department pursuant to
the terms and conditions of the Pretrial Diversion
Agreement that she entered into with the
Commonwealth. The Commonwealth also argued that
Rhonda Duncan, under KRS 391.030, as a surviving
widow, had a spousal exemption of $15,000 of personal
property which would be transferred to her over and
above the claims of creditors or heirs. This Court notes
that in the papers of the estate, the Administrator claimed
that the guns would not be worth $15,000 which would
allow the widow to have possession of the guns and
which would not be subject to the claims of creditors or
Rhonda Duncan appeared at the October 5, 2007,
hearing and this Court appointed at her request, the
Department of Public Advocacy to represent her. Ms.
Duncan was placed under oath and stated that it was still
her desire to forfeit those guns to the Hancock County
Sheriff’s Department pursuant to her plea agreement and
the pretrial diversion order.
Therefore, this Court is in the position of either
overruling the motion to return the guns or engage in the
legal fictions of having the Hancock County Sheriff’s
Department turn the guns over to the administrator of the
Decedent/Defendant’s estate who would then turn the
guns over to the surviving widow pursuant to her spousal
exemption under KRS 391.030. To overrule the
Decedent/Defendant’s motion for return of the guns to
the estate would be a blatant disregard of the Court of
Appeals Order, and to engage in either of the legal
fictions as set out above would allow the guns to remain
in the possession of the Hancock County Sheriff’s
Department because Ms. Duncan has entered into the
plea agreement forfeiting the guns to the Hancock
County Sheriff’s Department.
Therefore, to allow an appellate court to straighten
out this mess and to insure the issue is clear and correct
and that an entire record is before them regarding this
matter, and the Court being otherwise sufficiently
IT IS FURTHER ORDERED AND ADJUDGED
that the guns shall be constructively transferred to the
administrator of the Decedent/Defendant’s estate who
will constructively transfer the guns to Rhonda Duncan,
pursuant to her spousal exemption, who will then
constructively transfer the guns back to the Hancock
County Sheriff’s Department.
This appeal followed.
We are troubled by several aspects of this case. Clearly, as noted in
the earlier opinion of this Court, the criminal case against the decedent/defendant
was rendered moot prior to any disposition of the criminal charges by virtue of his
death. See Royce v. Commonwealth, 577 S.W.2d 615 (Ky. 1979). As a result, the
lack of conviction bars any forfeiture of the seized property under KRS 527.060.
At that point, the Hancock County Sheriff’s Department lost all authority to retain
the property. More importantly, however, when the decedent/defendant died, the
circuit court lost jurisdiction to dispose of the property.
The district court has exclusive original jurisdiction over all probate
matters concerning decedents’ estates. KRS 24A.010(1); KRS 24A.020; KRS
24A.120(1)(b). As provided in KRS 395.030, “When a person dies intestate, the
District Court which would have had jurisdiction to probate his will, had he made a
will, shall have jurisdiction to grant administration on his estate.” The circuit
court’s action herein of “constructively” administering the decedent/defendant’s
estate violates Section 113(6) of our Kentucky Constitution.
Even more problematic are the presumptions the circuit court made to
reach the desired result. The court noted that because the guns were valued at less
than $15,000, they would pass to Rhonda pursuant to the widow’s exemption in
KRS 391.030. However, KRS 391.030 specifically requires an application to the
district court by the surviving spouse or the exemption is not granted. There is no
evidence in the record that Rhonda intended to assert her right to the widow’s
exemption. Furthermore, the exemption at the time of the decedent/defendant’s
death in 2001 was only $7,500, not $15,000 as asserted by the Commonwealth.
Moreover, even if Rhonda had claimed a dower interest in one-half of
the decedent/defendant’s surplus personal property under KRS 391.030, the
remaining property would have passed to the children. See Harris v. Rock, 799
S.W.2d 10, 11 (Ky. 1990). See also Mattingly v. Gentry, 419 S.W.2d 745 (Ky.
1967); Talbott's Ex'r v. Goetz, 286 Ky. 504, 151 S.W.2d 369 (1941). And if
Rhonda waived her dower rights, the children would have inherited all of the
decedent/defendant’s property, including the guns. Thus, there were multiple
issues that were solely within the district court’s jurisdiction.
Finally, we are troubled by the fact that it appears that a majority of
the guns were sold by the Hancock County Sheriff’s Department. On August 28,
2007, the Commonwealth filed a “Disposition of Personal Property,” indicating
that twenty of the twenty-five seized guns were sold at a public auction for a total
of $2,400. The disposition does not state on what date the sale occurred.
Certainly, if such was the case after this Court’s May 19, 2006, opinion, there was
no authority for the auction, and the Sheriff’s Department may be in contempt of
this Court’s earlier ruling. Appellant has chosen not to pursue this issue, however,
and therefore we are without sufficient evidence to address it. In any event, the
defendant/decedent’s estate is entitled to the proceeds of that auction as well as the
guns remaining in the possession of the Commonwealth.
In rendering this opinion, we are cognizant that the circuit court was
presented with an unusual situation and ruled in a manner that it believed
accomplished the purposes of both this Court’s earlier opinion and Rhonda’s pretrial diversion agreement. Nevertheless, we are compelled to conclude that the
court’s remedy effectively administered the defendant/decedent’s estate, which it
was unquestionably without jurisdiction to do. KRS 395.030.
This matter is remanded to the Hancock Circuit Court for an order
directing that the Hancock County Sheriff’s Department return the remaining
seized guns as well as the proceeds of the auction to the decedent/defendant’s
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Albert W. Barber, III
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General