Shirley C. Thornhill by and Through Stephen D. Thornhill, Attorney-In-Fact v. Estate of Brian Lynn Butler by and Through Jimmy D. Butler ( 2021 )

RENDERED: OCTOBER 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0416-MR
SHIRLEY THORNHILL, BY AND
THROUGH STEPHEN D.
THORNHILL, ATTORNEY-IN-FACT APPELLANT
APPEAL FROM MEADE CIRCUIT COURT
v. HONORABLE KENNETH H. GOFF, II, JUDGE
ACTION NO. 18-CI-00219
ESTATE OF BRIAN LYNN BUTLER,
BY AND THROUGH JIMMY D.
BUTLER, EXECUTOR; AND ESTATE
OF VIRGINIA DOUGLAS MILBURN
CLAYCOMB, BY AND THROUGH
RUTH G. BUTLER, EXECUTRIX APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, McNEILL, AND L. THOMPSON, JUDGES.
McNEILL, JUDGE: Shirley Thornhill (“Thornhill”) appeals from a Meade Circuit
Court declaratory judgment in favor of appellees, Estate of Brian Lynn Butler and
Estate of Virginia Douglas Milburn Claycomb. For the following reasons, we
affirm.
This is a will contest case concerning the rights of beneficiaries under
the will of Virginia Douglas Milburn Claycomb (“Claycomb”), who died March
22, 2018. Claycomb’s will was executed on January 22, 2010. Items V and VI of
Claycomb’s will provide:
Item V
I give, devise, and bequeath unto my grandson, Brian
Lynn Butler, the option to purchase my 255 acre home
place farm located at 200 Claycomb Road, Guston, Ky,
40142, for the sum of Two Hundred and Fifty Thousand
($250,000.00) Dollars, and I further state that he shall
have Twelve (12) months from the date of my death to
notify my personal representative of his intentions to
exercise this option. If he agrees to purchase the
property, the net proceeds shall be distributed equally in
accordance with Item VI of this my Last Will and
Testament. In the event, he does not exercise this option,
then I direct my personal representative to sell and
convey said home place farm as stated and under the
same distributive conditions of Item VI of this my Last
Will and Testament.
Item VI
All the rest and residue of my estate, whether real, mixed
or personal, wherever situated, I give, devise, and
bequeath unto my beloved daughters, namely Shirley
Claycomb Thornhill, Ruth Gail Claycomb Butler, and
Shirley Gail Claycomb[.]
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At the time of Claycomb’s death, Brian Lynn Butler (“Butler”), was
severely ill and hospitalized. On May 12, 2018, Butler died. On June 12, 2018,
Claycomb’s will was probated and Butler’s mother, Ruth Gail Butler, was
appointed the executrix of Claycomb’s estate. Butler’s father, Jimmy Butler, was
appointed administrator of Butler’s estate on June 19, 2018.
On that same day, Thornhill, a beneficiary under Claycomb’s will,
filed a petition for declaration of rights in the Meade Circuit Court alleging Butler
failed to exercise the option prior to his death and asserting her interest in the real
property. A bench trial was held on September 9, 2019. At trial, Ruth Gail Butler
testified that on April 9, 2018, while Butler was in the hospital, he expressed to her
his intent to purchase the farm and finance the purchase. She understood Butler to
be exercising the option in Claycomb’s will. She further testified that she and
Butler spoke about his intent to purchase the farm several times. At the time of
these conversations, Ruth Gail Butler had not yet been appointed the executrix of
Claycomb’s estate.
Following trial, the circuit court entered findings of fact, conclusions
of law, and a declaratory judgment in favor of the Estate of Brian Lynn Butler and
the Estate of Virginia Douglas Milburn Claycomb. The court found Butler had
properly exercised the option by notifying Claycomb’s personal representative,
Ruth Gail Butler, of his intent to purchase the farm within twelve months of
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Claycomb’s death. Although Ruth Gail Butler was not Claybomb’s personal
representative at the time of the notice, the court held that once she was appointed
executrix her authority related back, because accepting Butler’s notification of his
intent to exercise the option was an act within the scope of her authority as
executrix, citing Allison v. Cocke’s Executors, 106 Ky. 763, 51 S.W. 593, 21 Ky.
L. Rptr. 434 (1899) and Carter’s Executors v. Carter, 49 Ky. 327, 10 (B. Mon.)
327, 1850 WL 3573 (1850). This appeal followed.
We review the construction of a will de novo. Hammons v.
Hammons, 327 S.W.3d 444, 448 (Ky. 2010). However, findings of fact made by
the trial court shall not be set aside unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge the credibility of witnesses.
Kentucky Rules of Civil Procedure (“CR”) 52.01. Findings of fact are not clearly
erroneous if supported by substantial evidence. Hoskins v. Beatty, 343 S.W.3d
639, 641 (Ky. App. 2011) (citation omitted).
“The ‘polar star rule’ of wills construction provides that the intention
of the testator, if not contrary to the law, controls.” Hammons, 327 S.W.3d at 448
(citation omitted). “Thus, a court’s primary duty is to ascertain and give effect to
the testator’s intent.” Id. “To ascertain the testator’s intention, it is necessary to
first examine the language of the instrument. If the language used is a reasonably
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clear expression of intent, then the inquiry need go no further.” Clarke v. Kirk, 795
S.W.2d 936, 938 (Ky. 1990) (citation omitted).
Thornhill argues the trial court erred in allowing extrinsic evidence as
to Claycomb’s intent without finding the will ambiguous. At trial, the court
allowed testimony concerning an agreement between Claycomb and Butler which
allowed Butler to farm Claycomb’s land. However, this evidence was irrelevant to
the trial court’s findings concerning Claycomb’s intent, which were based upon the
language of the contract alone. Therefore, we find no error.
Pursuant to the will, Butler had the option of purchasing the farm for
$250,000.00 if he notified Claycomb’s personal representative “of his intentions to
exercise th[e] option” within twelve months of Claycomb’s death. In its findings
of fact, the trial court held
[i]t is obvious from the language set forth in Virginia’s
Will that Virginia wanted Brian to have an opportunity to
purchase the farm for $250,000.00. There is
uncontradicted evidence that Brian exercised his option
when he advised the Executrix of Virginia Claycomb’s
Estate that he intended to exercise his option.
We agree with the trial court’s construction of the will. And its finding that Butler
notified Claycomb’s representative of his intention to exercise the option is
supported by substantial evidence.
Next, Thornhill contends the option was personal to Butler and cannot
be exercised by his estate. She argues that since Butler “failed to fully exercise the
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option,” it terminated upon his death. It appears Thornhill is arguing that since the
purchase was not finalized in Butler’s lifetime, his estate cannot now complete the
purchase. However, “[t]he ‘exercise’ of an option is merely the election of the
optionee to purchase the property. By the use of the word ‘accept’ in a particular
option contract, the parties mean the same as ‘exercising’ the option.” 92 C.J.S.
Vendor and Purchaser § 171 (2020) (footnotes omitted).
The general rule is that “an option must be accepted according to its
terms[.]” Phelps v. Gover, 394 S.W.2d 927, 928 (Ky. 1965). Therefore, we look
to the language of the will to determine what was required to exercise the option.
The will provides that Butler “shall have Twelve (12) months from the date of my
death to notify my personal representative of his intentions to exercise this option.”
“Where there is no ambiguity, a written instrument is to be strictly
enforced according to its terms which are to be interpreted ‘by assigning language
its ordinary meaning and without resort to extrinsic evidence.’” Allen v. Lawyers
Mut. Ins. Co. of Kentucky, 216 S.W.3d 657, 659 (Ky. App. 2007) (citing Island
Creek Coal Co. v. Wells, 113 S.W.3d 100, 104 (Ky. 2003)). The language of the
will is clear and unambiguous. To exercise the option, Butler only had to notify
Claycomb’s personal representative of his intentions to do so within twelve months
of her death. The will says nothing about payment. “Where an option contract
does not provide for payment of the purchase price at the time of an optionee’s
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exercise or where such contract is silent as to the time of payment, the general rule
is that payment is not a necessary requisite to exercise.” 49 AM. JUR. 2d Landlord
and Tenant § 336 (2020) (footnote omitted).
Once Butler accepted the option, the parties had a binding contract.
Carter v. Frakes, 303 Ky. 244, 197 S.W.2d 436, 438 (1946). “The representative
of a decedent who had a contract to purchase land has both a right and a duty to
pay the purchase money and enforce the contract.” 31 AM. JUR. 2D Executors and
Administrators § 527 (2021).
For the foregoing reasons, the judgment of the Meade Circuit Court is
affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Stephen G. Hopkins Alec Stone
Hardinsburg, Kentucky Brandenburg, Kentucky
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