Blevins v. Moran

• Citation: 12 S.W.3d 698
• Decision Date: 11 February 2000
• Docket Number: No. 1998-CA-002912-MR.,1998-CA-002912-MR.
• Parties: Barkley L. BLEVINS and Donald W. Blevins, Co-Executors of The Estate of Frank D. Peterson, Barkley L. Blevins, Individually, and Donald W. Blevins, Individually, Appellants, v. Ruth Ann Blevins MORAN, Audrey Blevins, Frank Blevins, William Blevins, Danny Blevins, Ginger Blevins Paxton, Robert Lee Peterson, Holly Petterson Tichendorff, Mark Cundiff Johnson, Lynn Hughes Johnson and Peterson Martin Johnson, and Judith May Blevins Smith, Appellees.
• Court: Court of Appeals of Kentucky

12 S.W.3d 698

Barkley L. BLEVINS and Donald W. Blevins, Co-Executors of The Estate of Frank D. Peterson, Barkley L. Blevins, Individually, and Donald W. Blevins, Individually, Appellants, v. Ruth Ann Blevins MORAN, Audrey Blevins, Frank Blevins, William Blevins, Danny Blevins, Ginger Blevins Paxton, Robert Lee Peterson, Holly Petterson Tichendorff, Mark Cundiff Johnson, Lynn Hughes Johnson and Peterson Martin Johnson, and Judith May Blevins Smith, Appellees.

No. 1998-CA-002912-MR.

Court of Appeals of Kentucky.

February 11, 2000.

James A. Shuffett, Lexington, Kentucky, for Appellant.

J. Patrick Sullivan Lexington, Kentucky, for Appellees.

Before: BUCKINGHAM, KNOPF, and McANULTY, Judges.

OPINION

KNOPF, Judge:

Brothers Barkley and Donald Blevins appeal from an October 30, 1998, judgment of Fayette Circuit Court construing the last will and testament of their uncle, Dr. Frank D. Peterson. Barkley and Donald are co-executors of their uncle's estate and principal beneficiaries under his will. They maintain that the trial court misapplied Kentucky's anti-lapse statute, KRS 394.400, in awarding certain of Dr. Peterson's bequests to the children of deceased beneficiaries rather than to them, Barkley and Donald, as remaindermen. For the following reasons, we affirm the judgment of the trial court.

Dr. Peterson died testate at the age of 97 in January 1996. The portions of his will pertinent to this dispute are as follows:

ITEM II

My wife, Jewell Peterson (formerly known as Jewell J. Callison), and I, both being of independent means, executed on November 5, 1979, prior to our marriage, an Antenuptial Agreement and Separate Property Contract wherein we released and waived any share or claim in the other's estate which would arise upon our marriage. Nevertheless, as a token of my love and affection for her, I devise and bequeath to her, if she survives me by at least sixty (60) days, the sum of Forty Thousand Dollars ($40,-000.00). I further devise and bequeath the condominium known as 410 The Woodlands at 480 East Main Street, Lexington, Kentucky, to my wife, Jewell Peterson, for her life, with the remainder in fee simple, in equal shares, to my nephews, Donald W. Blevins and Barkley L. Blevins.

. . .

ITEM IV

I devise and bequeath to my sister, Nelle P. Blevins Johnson, the sum of Thirty Thousand Dollars ($30,000.00).

ITEM V

I devise and bequeath to my nephew, Royce E. Blevins, all shares of my common stock in that corporation known as Lexington Fire Protection Company which have not previously been given to him and all of my partnership interest in that partnership known as Bellaire Enterprises.

ITEM VI

To the following nephews and nieces, I devise and bequeath the sum of Fifteen Thousand Dollars ($15,000.00) each: (a) Marie Peterson Akridge; (b) Margaret Peterson Rittenhouse; (c) Elizabeth Peterson Reid; (d) Nadine Peterson Barnes; (e) Audrey Peterson Newcomb; (f) James D. Peterson; (g) Martin Douglas Johnson; (h) David Lewis Johnson; (i) Norman Allen Johnson; (j) Rodney Allen Beck; (k) Judith Blevins Smith; and (l) Mary Lou Malone.

I further devise and bequeath the sum of Fifteen Thousand Dollars ($15,000.00) each to the children of Barkley L. Blevins: (a) Roger Blevins; (b) John Blevins; (c) Susan Blevins; (d) Sandra Blevins Yount; (e) Amy Blevins; and (f) Lisa Blevins.

ITEM VII

All the rest, residue and remainder of my estate, both real and personal, wherever situated and of whatever nature, kind and description that I own at my death, including legacies and devises, if any, which may lapse or fail for any reason, I give, devise and bequeath to my nephews, Donald W. Blevins and Barkley L. Blevins in fee simple in equal shares.

Dr. Peterson's sister, Nelle P. Blevins, died before he did, as did his nephews Royce E. Blevins, James D. Peterson, and Martin Douglas Johnson. A dispute arose over what was to become of the gifts to these four individuals. The appellees, the surviving issue of the four pre-deceased beneficiaries, successfully maintained in the trial court that under the anti-lapse statute they were entitled, respectively, to their ancestors' bequests. That statute, KRS 394.400, provides as follows:

If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will.

There is no dispute that the four beneficiaries died before the testator or that each left issue who survived him. The survivors take the estates granted their ancestors, therefore, "unless a different disposition thereof is made or required by the will." The trial court agreed with the appellees that the will does not make or require a different disposition. Donald and Barkley maintain, however, that the will's residuary clause, ITEM VII above, by including in the remainder "legacies and devises ... which may lapse or fail for any reason," was meant to operate in place of the anti-lapse statute. The trial court erred, they insist, by concluding otherwise.

The trial court entered its judgment in response to cross-motions for judgment on the pleadings. Because the trial court considered matters outside the pleadings, however, we shall review its decision as though it were a summary judgment. CR 12.03; Old Mason's Home of Kentucky, Inc. v. Mitchell, Ky.App., 892 S.W.2d 304 (1995). Because summary judgments involve no fact finding, this Court reviews them de novo, in the sense that we owe no deference to the conclusions of the trial court. As did the trial court, we ask whether material facts are in dispute and whether the party moving for judgment is clearly entitled thereto as a matter of law. Under this state's rules of practice, summary judgments are to be granted cautiously; they are appropriate only when it appears impossible for the non-movant to prove facts establishing a right to relief or release, as the case may be. Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).

This case presents a question of testamentary construction, and, as the trial court noted, "[t]he cardinal rule of testamentary construction is to ascertain the intention of the testator and give it effect ...." Donelson's Ex'r v. Coates, Ky., 299 Ky. 608, 186 S.W.2d 420, 422 (1945). Other rules of construction, including the anti-lapse statute itself, are to be invoked only when the testator's intent is otherwise unclear. Prewitt v. Prewitt's Executors, 303 Ky. 772, 199 S.W.2d 435 (1947).

The appellants summarize the matter succinctly as a dispute over the meaning of the phrase "lapsed" legacy. Under the common law, they note, a legacy "lapsed" if, among other reasons, an individual donee pre-deceased the testator. Typically, lapsed gifts passed according to the residuary clause, if there was one, or according to the laws of intestacy, if there was not. The anti-lapse statute, they argue, does not alter this meaning of "lapse," which still applies to any legacy the beneficiary of which pre-deceases the testator. The statute merely alters the consequences of lapse in certain circumstances. The residuary clause's reference to "lapsed" legacies or devises, therefore, encompasses the gifts at issue here and preempts KRS 394.400.

The trial court, on the other hand, understood KRS 394.400 as preventing the "lapse" of the contested gifts in the first place, thus rendering the will's residuary clause inapplicable to them. The residuary clause, according to the trial court, was intended merely to ensure that any gifts that lapsed or failed under the current law of wills — including the anti-lapse statute — would not pass by the law of intestacy. It did not manifest an intention to avoid the anti-lapse statute.

The appellants rely on four cases from foreign jurisdictions that support their position in this semantic argument. Estate of Salisbury, 76 Cal.App.3d 635, 143 Cal. Rptr. 81 (1978); In re Phelps' Estate, 147 Iowa 323, 126 N.W. 328 (1910); In re Neydorff, 193 A.D. 531, 184 N.Y.S. 551 (1920); and Jensen v. Nelson, 236 Iowa 569, 19 N.W.2d 596 (1945). In each of these cases, a reference in the residuary clause to "lapsed legacies," such as the reference in Dr. Peterson's will, was understood as implying the testator's intention to avoid the effect of the anti-lapse statute. Indeed, the Court in In re Neydorff, referring to the following language from the will: "All the rest, residue and remainder of my estate, ... including lapsed legacies, I give and devise to my niece." opined that "it must be obvious that the testator referred to `lapsed legacies' as those legacies which were defeated by the prior death of the beneficiaries." Id. at 553. And the California Court in Estate of Salisbury was likewise certain that "the testatrix's reference to failed and lapsed gifts in the residuary clause can only be interpreted as indicating her intent to substitute the residuary beneficiaries in place of her brother should he predecease her." Id. at 85.

The trial court took pains to distinguish these cases from the present one. The court noted, for example, that the California statute at issue in Estate of Salisbury recalls expressly the common-law rule of lapse and merely provides for an exception to it:

If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute another in his place; except that when any estate is devised or bequeathed to any kindred of the testator, and the devisee or legatee dies before the testator, having lineal descendants, or is dead at the time the will is executed, but leaves lineal descendants surviving the testator, such descendants take the estate so given by the will in the same manner as the devisee or legatee would have done had he survived the testator.

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