HAMMONS v. HAMMONS

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Court of Appeals of Kentucky.

Janet HAMMONS and Jillisa Hammons, Appellants, v. Rosa HAMMONS, Appellee.

No. 2007-CA-002312-MR.

Decided: February 13, 2009

Before LAMBERT and TAYLOR, Judges; GRAVES,1 Senior Judge. Reginald L. Thomas, Lexington, KY, for appellant. Thomas H. Burnett, Gerry L. Calvert, Lexington, KY, for appellee.

OPINION

Janet and Jillisa Hammons appeal from a summary judgment, declaration of rights, and order quieting title in favor of Mrs. Rosa Hammons, the widow of their deceased father, Dr. James W. Hammons. After careful review, we affirm the judgment of the Fayette Circuit Court.

Dr. Hammons died testate on August 11, 2006. Dr. Hammons' will was probated and a judgment entered on October 27, 2007, which provided that Mrs. Hammons owns a life estate in all property owned by Dr. Hammons at his death and that Janet and Jillisa are contingent remaindermen in that property. The judgment further stated that, as a life tenant, Mrs. Hammons has the right to occupy and control the property exclusively. This appeal followed.

Janet and Jillisa argue that the court erred in finding that they only possess a contingent remainder in their father's property rather than a vested remainder. They contend that they should have rights to inspection of the property as well as to an accounting of the property. We disagree.

The will very clearly states that:

[a]ll of my estate ․ I give ․ to my wife, Rosa W. Hammons, for her lifetime. My said wife during her lifetime shall have the right to sell any property received by her under the terms of this item and invest and reinvest the proceeds thereof in other property, real or personal, in her absolute discretion. Any sale made by my said wife ․ shall be on such terms and conditions, including credit, as she may deem appropriate. ․ My said wife during her lifetime shall be entitled to all income realized from this property under this item․ On the death of my said wife, I give, devise and bequeath, absolutely and in fee simple, all of the assets devised and bequeathed under this item then remaining, to my daughters, Janet P. Hammons and Jillisa S. Hammons, to be divided equally between. In the event either of my daughters should fail to survive me and my said wife leaving no issue surviving her, then such deceased daughter's part shall pass to her surviving sibling․

(Emphasis added). The will clearly grants Mrs. Hammons the right to receive any and all income from the property for her lifetime as well as the right to make all decisions regarding the property during her lifetime. Additionally, the will provides that Janet and Jillisa possess an interest contingent on two things: first, that some assets remain when Mrs. Hammons dies; and second, that one of them survive Mrs. Hammons or predecease Mrs. Hammons with living issue. The contingencies create a full range of possibilities depending on the circumstance: neither could take the property; one could take it all; or each could take half.

A remainder is contingent where the condition of survivorship is incorporated into the description of and into the gift to the remaindermen, or where survivorship is a condition precedent to the taking of the remainder. In accordance with the rule that words of survivorship generally relate to the period of distribution rather than to the time of the grant or of the testator's death, a remainder limited to those who survive or are living at the termination of the proceeding estate is, by the decided weight of authority, contingent, by reason of the uncertainty as to the remaindermen, they being regarded as incapable of ascertainment until the expiration of the prior estate.

28 Am.Jur.2d § 271 (1966) (emphasis added). The will is explicit in the requirement that Janet, Jillisa, or one of their heirs survive Mrs. Hammons in order to inherit the property remaining from Mrs. Hammons' life estate. Therefore, the interest is by definition contingent, and we find no error in that finding of the court below. As such, we also agree that Janet and Jillisa are not entitled to any right of inspection or an accounting of the property.

We accordingly affirm the summary judgment, declaration of rights, and order of the Fayette Circuit Court.

LAMBERT, Judge.

ALL CONCUR.