CHEEK (MICHELLE), ET AL. VS. LOVE (DIANA), ET AL.
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RENDERED: SEPTEMBER 17, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-002296-MR
MICHELLE CHEEK; THERESE
GARRETT; JUDY HARMON;
CATHY HUBBELL; JANIE MILLER;
DALLAS ORBERSON; HAROLD RAY
ORBERSON; BARBARA SISK;
LINDA SMOTHERS; DEBBIE WREN;
MICHAEL LUSHEN WREN; STEVEN
WAYNE WREN; AND WILLIAM
(BILLY) WREN
v.
APPELLANTS
APPEAL FROM MARION CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 08-CI-00079
DIANA LOVE; ELIZABETH ANN
PERRY; CONNIE S. TUNGATE;
FRANCIS WILLIAMS; ALVIN
WREN, JR.; WILLIAM RAY WREN;
WILLIAM G. FOWLER, II,
ADMINISTRATOR; KELLY RILEY;
AND LARRY DALE ORBERSON
OPINION
AFFIRMING
** ** ** ** **
APPELLEES
BEFORE: CLAYTON AND LAMBERT, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE: This appeal arises from a summary judgment entered in a
declaration of rights case, wherein the Marion Circuit Court interpreted the
following provision contained in the Last Will and Testament of Lushen Wren:
“Upon the death of the last of my children, all of my estate shall be sold and
divided among my grandchildren, per stirpes.” Specifically at issue is the
interpretation of “per stirpes” in the sentence and whether the stirpital root begins
at the decedent’s children’s level or at his grandchildren’s level. The circuit court
held that the root began at the children’s level and therefore ordered that the
proceeds of the Estate be distributed in unequal portions among Lushen’s nineteen
living grandchildren and two great-grandchildren. For the following reasons, we
affirm.
Lushen Wren passed away on December 7, 1969, in Marion County,
Kentucky, and his Last Will and Testament was admitted to probate the following
November. The will provided as follows:
I, Lushen Wren, a citizen and resident of Marion
County, Kentucky, being of sound mind and disposing
memory, do hereby make, publish and declare this to be
my last will and testament, revoking any prior wills made
by me.
Item I. Upon my death, I give and bequeath all of
my estate, real and personal, to my wife, Dora Wren, for
and during her lifetime. Upon her death, if my daughter,
1
Senior Judge Michael L. Henry 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.
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Christine Wren, is still living, I devise and bequeath all
of my estate to my daughter, Louise Orberson, for and
during the lifetime of said Christine Wren, provided said
Louise Orberson is willing to take care of and provide
food, shelter, clothing and medical services for my said
daughter, Christine Wren, as long as she lives. In the
event said Louise Orberson should not desire to or should
fail to take care of my said daughter, Christine Wren as
herein provided, then any child of mine who will take
care of said Christine Wren as hereinabove set forth shall
have an estate for the life of said Christine Wren in all of
my property, real and personal.
Upon the death of my said wife, Dora Wren, and
my daughter, Christine Wren, I devise and bequeath all
of my estate in equal shares to my children then
surviving, and to the survivor or survivors of them until
the last of my said children shall die, it being my desire
that all my land be held and not sold until all of my
children are dead.
I own 5 ½ acres of land with a house located
thereon near Riley Station in Marion County, Kentucky,
which is now occupied by my son, Wayne Wren. My
said son shall have the right to continue to occupy said
house and lot so long as he desires, and the life estates
hereinabove granted are subject to this provision.
Upon the death of the last of my children, all of my
estate shall be sold and divided among my grandchildren,
per stirpes.
Item II. I hereby nominate and appoint my wife,
Dora Wren as Executrix of this my last will and
testament, and request that she be permitted to qualify as
such without giving surety on her official bond. When a
division of my estate is required as directed in this will, I
request the Judge of the Marion County Court to appoint
one or more of my grandchildren as personal
representative of my estate for the purpose of making a
division as herein directed, and such personal
representative shall have full and complete power and
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authority to sell and convey any property, real or
personal, which I may own at the time of my death.
IN WITNESS THEREOF, I have hereunto affixed
my signature, this 6th day of August, 1958.
Attest: Robert M. Spragens
His
Lushan [sic] X Wren
Mark
The foregoing instrument was this day signed and
acknowledged before us by Lushen Wren to be his last
will and testament, and we, at his request, and in his
presence, and in the presence of each other, have
hereunto affixed our signatures, as witnesses, this 6th day
of August, 1958.
Robert M. Spragens
Katherine Buckler
Pursuant to the terms of the will, Lushen’s Estate was not to be sold nor the
proceeds divided among his grandchildren until his wife and all of his children had
died.
Lushen and his wife, Dora Wren, produced a total of nine children.
Two had passed away prior to the execution of Lushen’s will, and five other
children were survived by issue. Lushen’s daughter, Christine Wren, passed away
in 1975 with no children. Lushen’s wife, Dora Wren, died two years later in 1977.
In addition to Christine, Dora was predeceased in 1972 by son Alvin Wren and
daughter Louise Orberson. At the time of Dora’s death, Alvin left two surviving
children, and Louise left eight. Of Louise’s eight surviving children, one child
died in 1978, leaving no children, and daughter Frances Peak died in 1993, leaving
two children.
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Upon Dora’s death in 1977, a life estate in Lushen’s Estate passed to
their surviving children, Hubert Wren, Wayne Wren, Ray Wren, and Mae Williard.
Hubert Wren died in 1996, leaving no children. Mae Williard died in 2004,
leaving two children. Ray Wren died in 2006, also leaving two children. And
Wayne Wren, the last surviving child of Lushen and Dora, died on August 19,
2007, leaving seven children.
Upon Wayne’s death, twenty-one heirs, consisting of nineteen
grandchildren and two great-grandchildren, were entitled to distributions from the
sale of Lushen’s Estate. These heirs are:
Wayne Wren’s children:
Therese Garrett
Cathy Hubbell
Janie Miller
Debbie Wren
Michael Lushen Wren
Steven Wayne Wren
William (Billy) Wren
Louise Orberson’s children (or grandchildren):
Judy Harmon
Dallas Orberson
Harold Ray Orberson
Larry Dale Orberson
Barbara Sisk
Linda Smothers
Michelle Creek (daughter of Frances Peak, Louise’s
child)
Kelly Riley (daughter of Frances Peak, Louise’s child)
Mae Willard’s children:
Elizabeth Ann Perry
Connie S. Tungate
Alvin Wren’s children:
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Diana Love
Alvin Wren, Jr.
Ray Wren’s children:
William Ray Wren
Frances Williams
William G. Fowler, II, was named Administrator with will annexed of
Lushen’s Estate in November 2007. Pursuant to Lushen’s direction, his real
property was sold at public auction on March 29, 2008, and raised $301,533.78.
The same month, Fowler filed a declaratory rights action pursuant to KRS 418.040
in order to settle the controversy between the heirs as to the proper share to which
each was entitled. The heirs may be split into two categories. The descendents of
Wayne and Louise, who each left seven living children at the time of their
respective deaths, argue that the proceeds should be distributed per capita, or in
equal 1/20th shares, among the grandchildren (with one share distributed per stirpes
between the two great-grandchildren) (hereinafter “the per capita heirs” or
“Appellants”).2 On the other hand, the descendants of Mae, Alvin, and Ray, who
left two descendants each, argue that the proceeds should be split per stirpes, or in
1/5th shares per child with surviving issue, and then split equally among each
child’s surviving children (or grandchildren) (hereinafter “the per stirpes heirs” or
“Appellees”). Under one interpretation, the proceeds would be split equally
between all of the grandchildren, while in the other the proceeds would be split
unequally among them.
2
We use these terms solely for ease of understanding and to distinguish the parties, and by these
terms do not mean to imply that the “per capita” heirs are attempting to ignore language
contained in the will. See Appellants’ Brief, p. 16.
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Both sets of heirs filed motions for summary judgment, presenting
arguments as to which generational level provided the stirpital root for the eventual
division of the Estate. After initially ruling in favor of the per capita heirs, the
circuit court reconsidered that order, found that Lushen and Dora’s children’s
generation provided the stirpital root, and ruled in favor of the per stirpes heirs. In
making this determination, the circuit court stated, “If Wren’s direction that his
estate be divided among his grandchildren per stirpes is to be given any effect at
all, it must be interpreted to mean that his estate must be divided among his
grandchildren, by family, and not equally.” Therefore, the circuit court ordered the
Estate to be divided in 1/35th shares to each per capita heir (1/70th shares to each
great-grandchild) and in 1/20th shares to each per stirpes heir. This appeal
followed.
Our standard of review in this case is well settled in the
Commonwealth. “The standard of review on appeal of a summary judgment is
whether the trial court correctly found that there were no genuine issues as to any
material fact and that the moving party was entitled to judgment as a matter of
law.” Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). “Because summary
judgment involves only legal questions and the existence of any disputed material
issues of fact, an appellate court need not defer to the trial court’s decision and will
review the issue de novo.” Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky. App.
2001). Because there are no disputed issues of material fact, this opinion shall
only address the legal issue raised in the appeal, which we shall review de novo.
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The sole question before this Court is whether the circuit court
correctly interpreted the provision at issue in Lushen’s will in dividing the Estate.
That provision states: “Upon the death of the last of my children, all of my estate
shall be sold and divided among my grandchildren, per stirpes.” Guiding our
review in this case is what has been termed the “polar star rule.”
This rule holds that in the absence of some illegality, the
intention of the testator is controlling. To ascertain the
testator’s intention, it is necessary to first examine the
language of the instrument. If the language used is a
reasonably clear expression of intent, then the inquiry
need go no further. If it is not such a clear expression,
then it is necessary to construe the language used
according to appropriate rules of construction.
Clarke v. Kirk, 795 S.W.2d 936, 938 (Ky. 1990) (internal citations omitted).
Accordingly, before we may apply any rule of construction, we must first decide
whether the provision is ambiguous. And having reviewed the provision at issue,
we conclude that there is no ambiguity and that Lushen intended an unequal
distribution when he included the legal term “per stirpes” after “my
grandchildren.”
In their brief, the Appellants cite to the rule of construction that courts
will favor equality in the distribution of an estate: “Another well grounded rule is
that that court will favor that construction which produces equality rather than
inequality, except where unequal division is clearly called for.” Day’s Adm’r v.
Bright, 257 Ky. 359, 78 S.W.2d 43 (1935). See also Clarke, 795 S.W.2d at 940
(“The presumption in favor of equality has been held to be one of the most forceful
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of all presumptions.”); Shackelford v. Kauffman, 263 Ky. 676, 93 S.W.2d 15
(1936) (“the law favors equality in distribution, and all ambiguity will be
determined in favor of such distribution, unless a contrary intention clearly
appears.”); Prather v. Watson’s Ex’r, 187 Ky. 709, 220 S.W. 532 (1920).
However, we need not apply this rule to the present case, as we agree with the
Appellees that the language of the provision establishes that Lushen intended an
unequal division between his grandchildren.
Our conclusion is supported by the Restatement Second of Property,
Donative Transfers, § 28.1, cited by both the Appellants and the Appellees, which
addresses beneficiaries in the same generation to the donor:
If a gift is made to a class or classes described as
“children,” “grandchildren,” “brothers,” “sisters,”
“nephews,” “nieces,” “cousins,” or by a similar onegeneration class gift term, and
(1) the class members are in the same generation in
relation to the donor, and
(2) any individual named to take with the class are
in the same generation in relation to the donor as
the class members, each beneficiary is entitled to
an equal share per capita in the subject matter of
the gift, in the absence of additional language or
circumstances that indicate otherwise.
Comment d to this section addresses gifts to the donor’s grandchildren:
If a gift is made to the “grandchildren” of the donor, the
grandchildren traced through one child of the donor may
be more numerous than the grandchildren traced through
another child of the donor. This fact, if present, does not
in and of itself change the equal division among the class
members under the rules of this section, in the absence of
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additional language or circumstances that indicate
otherwise. By the use of the class gift term
“grandchildren,” the donor has placed all of the
grandchildren on the same footing.
Comment i addresses the addition of the term “per stirpes” on a one-generation
class gift:
If a gift is made to the “grandchildren” of a designated
person “per stirpes,” the described class members stem
from different children of the designated person. In such
case, the words “per stirpes” suggest an initial division of
the subject matter of the gift into shares, one share for the
children of each child of the designated person, thereby
overcoming the per capita division otherwise called for
by the rules of this section. In this situation, the words
“per stirpes” having been given a meaning, that meaning
should carry over to cause the share of a deceased class
member to go to his or her descendants. Thus, the words
“per stirpes” have a double operation.
Finally, the Reporter’s Note addresses this rule in section 3b, which reads as
follows:
“To my grandchildren per stirpes”: who are the stocks?
A gift made simply to the donor’s “grandchildren” or
“nephews and nieces” will be distributed per capita; if the
donor intends equality of treatment at that level, nothing
more need be said. But sometimes the donor intends to
treat his or her children, or brothers and sisters, equally
(or to treat their families equally), though the gift is to the
generation below. The phrases “per stirpes,” “by
representation,” or “according to the stocks” are
commonly used to express such intent. This is
recognized in Illustration 6 and in Comment f, but it
conflicts with the old common-law rule, still followed by
a few courts, that a gift “to a class per stirpes” means per
capita to the surviving members of the class, with per
stirpes distribution only to the descendants of deceased
class members.
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Furthermore, we recognize that “testamentary language, which by
long usage and judicial recognition has come to have a fixed meaning, will be
treated as having been used with that meaning by the testator.” Hopson’s Trustee
v. Hopson, 282 Ky. 181, 138 S.W.2d 365 (1940). Black’s Law Dictionary (8th ed.
2004) defines the term “per stirpes” as follows: “Proportionately divided between
beneficiaries according to their deceased ancestor’s share.” The term “per capita”
is defined as “[d]ivided equally among all individuals, usu. in the same class[.]”
Lushen’s use of the legal term “per stirpes” in conjunction with “my
grandchildren” reveals an intention that his children were to provide the stirpital
root and that each grandchild was to take by representation through his or her
parent (the deceased ancestor), for whatever reason. We disagree with the
Appellants’ argument that “per stirpes” was meant only to apply to the greatgrandchildren’s generation, but rather we perceive that this term has a double
meaning as suggested in Comment i set out above. Accordingly, Lushen’s
children provided the stirpital root in giving effect this provision of the will. Based
upon our de novo review of the legal issue before us, we hold that the circuit court
did not commit any error in dividing the Estate.
For these reasons, we hereby affirm the summary judgment of the
Marion Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANTS:
Dawn Lynne Spalding
Lebanon, Kentucky
BRIEF FOR APPELLEES, DIANA
LOVE, ELIZABETH ANN PERRY,
CONNIE S. TUNGATE, FRANCIS
WILLIAMS, ALVIN WREN, JR,
AND WILLIAM RAY WREN:
James L. Avritt, Sr.
Lebanon, Kentucky
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