McElroy v. Taylor
977 S.W.2d 929
Ky.
1998
Check Treatment

*1 “dissen- asserts create Commonwealth body, governmental be it another

sion” with

local, or federal. Since state explain “close” precisely how

has declined to gov- relationship required between two bodies, employees must public

ernmental any relationship is

now that sufficient assume possible crit- their termination for support ease, speech.

ical a difficult saying lend to the old reason to think cases make bad law. difficult opinion majority making law will be haunted bad and this Court breadth of this decision as we see employees

power government to muzzle used increasingly expansive manner.

STUMBO, J., joins in this McELROY,

Elmira Administratrix William Estate of M.

Bellmar, Appellant, TAYLOR, Executrix of the

Oreada Bellmar,

Estate Hazel

Appellee.

97-SC-451-DG. Kentucky.

Supreme Court of

Oct.

in a court of Maess v. Ky.App., 547 (1917); Harding’s (1910). Considering proposition 24A.120(1), combination with KRS both courts reached the conclusion that the circuit jurisdiction over the renunciation on of his behalf states, pertinent part, KRS 24A.120 “Dis- trict court shall have exclusive Schuhmann, A. S. Thomas McA- (1) Civil cases in amount which the in contro- dam, III, Louisville, KY, appellant. versy does four not exceed thousand dollars Jr., Louisville, KY, Lowry, Edwin J. ($4,000), costs, exclusive of interest and ex- appellee. cept affecting matters title to real estate and of equity....” matters STUMBO, Justice. The quoted circuit court also James R. This case seeks to determine whether the Merritt, 1 Kentucky Practice: Probate Prac- district court has over a renunci- (2d tice and Procedure incompe- ation of an ed.1984), of its conclusion: tent adult or whether such a renunciation Although probate and administration are must be filed the circuit court. The Jef- though often mentioned in one breath as ferson District ruled Court lacked they they thing, quite were the same jurisdiction and that the renunciation should process different. is a Probate of deter- be filed with the Jefferson Circuit Court. On mining given whether a instrument appeal, the circuit court affirmed the district ques- will of the decedent. The essential ruling. Appeals Court of denied tion is will or no will. discretionary granted review. This Court process Administration describes the discretionary review. winding up the affairs aof decedent. On October Hazel Bellmar died there be administration wheth- husband, testate. She survived her was er the decedent died testate or intestate. William M. Bellmar. Mr. Bellmar suffered statement, Based on this the circuit disease, son, from Alzheimer’s and his Wil- apparently concluded that McElroy, acting legal liam G. was as his sought in this case was not a “matter involv- guardian at the time of Hazel Bellmar’s ing probate” which the over probated death. Mrs. Bellmar’s will on was 24A.120(2), Acting capacity October in his rather awas matter guardian, McElroy Mr. filed a renunciation anof estate. pursuant to KRS 392.080. Oreada The circuit court also noted that KRS estate, Taylor, executrix of Hazel Bellmar’s specifically 418.045 removes opposed the renunciation. Before this case providing petitions Appeals, advanced to the Court of of rights declaration be made in a away passed McElroy, mar and Elmira ad- jurisdiction. Relying court of estate, ministratrix was substituted for arguments, these the circuit court held the McElroy as Mr. movant. Probate Division Jefferson District Court In reaching the conclusion that the district lacked matter. lacked upon string district and Respectfully, circuit courts relied we proposition for the inap- that a renuncia- cases relied on the lower courts are ' they tion of a will posite pre-date must be done because the Judicial Ar- 113(6) subpart. It chose not to in each tide of 1976. Section so, conclude provides, “The we must Constitution (2) and apply jurisdiction and court of limited does shall be a limitation *3 (3). jurisdiction may be original shall Assembly.”

provided by the General Therefore, meaning of plain, literal by the legislature, determines the not 24A.120, jurisdic- KRS jurisdiction of the district court. Accord- the sought in this case. tion over bar, we in to the issue at ingly, order resolve contention, all, contrary Appellee’s to First of appropriate statutes. must look to involv- “matter the renunciation of will 24A.120(2). Appellee re- probate.” ing phrase “except relying upon the In quotation upon the aforementioned 120(1), lies 24A. equity” in KRS ... matters rigid distinction Merritt to create Professor plain gave circuit court no effect to “probate” “adminis- 24A.120(2) (3). and between matters rule & “No language of tration,” the renuncia- and then characterizes more statutory construction has been defi “administration,” which is of a will as tion nitely repeated than the stated or more often beyond scope of district court’s significance cardinal rule that and effect shall, Appellee 24A.120. possible, every part diction under KRS What be accorded however, Scent, out, in Ky., point fails to a statement Act.” v. [an] (1961). Mer- part, paragraph relevant next of Professor (3) jurisdic- provide: “The & ritt’s treatise: same Merritt, supra, processes.” tion over both jurisdic- District court shall have exclusive at 475. tion legislature may de- clearly, Although (2) except mat- probate, Matters chooses, we “probate” however it believe fine adversary proceeding. contested in an ters his forego decision in adversary proceeding shall be filed Such bequest spouse will of his under the circuit court ... and statutory portion instead to take his choose (3) provided Matters not statute to certainly a “matter his estate is in be be commenced circuit shall strictly involving probate” matter how deemed to be nonadversarial within “probate” word is defined. (2) meaning of of this section subsection in Secondly, is not a matter contested are within the therefore proceeding. See the district court. re- provides No statute (3) Subparts 24A.120 guardian to be of a will nunciation be separated appear semicolons and in circuit commenced grants independant three “We 24A.120(3). law, including those Our case duty to a statute have a accord to words of by the Appellee cited relied meaning their literal unless courts, notion that supports also lower wholly to an absurd lead adversarial, renunciation of will Reeves, Bailey Ky., conclusion.” personal right. but rather (1984). Ky. also Unem See 777, 782 Greenfield, Ky.App., 547 S.W.2d Jones, Ky.App., ployment Ins. Comm’n v. Queen, Ky., Preece literally, Read Ky., (1976); Ramsey’s (2) (3) grant Ky. mat original over nonadversarial Ford, Georgetown Nat’l Bank v. involving probate. legislature If the had ters 472, 479, Miller 285 S.W. phrase “except ... matters wanted the (1) subpart be absolute equity” found Harding’s juris limitation of district court’s 130 S.W. 1098 diction, easily placed the have it could fact that a it not for the all Were prefatory language applies to in the appointed had been repeated have subparts, or could three mar, Taylor participate Ms. would not from our literal effect to the words renunciation decision at all. KRS 24A.120. “[W]hen the election is made within the time above, For the reasons set forth we re- manner, proper allowed and in the it is whol ruling verse circuit and remand

ly immaterial what reasons induced the devi- ease the Jefferson District Court for validity see to make the election. Its cannot proceedings further accordance inquired Adm’r, into.” contents of this deciding- pursue S.W. 1098. In LAMBERT, C.J., ward, aof will GRAVES and on behalf STEPHENS, JJ., concur. behave the manner *4 ordinary which prudent an man would con COOPER, J., by separate opinion, dissents duct his own affairs. Bohn v. Bohn’s Guard in which JOHNSTONE and ian, Ky. 608, 17 S.W.2d WINTERSHEIMER, JJ., join. (1929). In determining whether allow the COOPER, Justice, dissenting. renunciation, court must determine I agree with the that the Consti- whether it is in the best of interest the ward. delegated tution of has Gen- Ex’r, Ramsey’s 47 S.W.2d at 1061. Certain Assembly authority eral to determine ly, an present executor towish evidence what shall be exercised that a renunciation would be in the 113(6). district court. I Const. do not ward’s best interest she so believes. How agree Assembly General has vested ever, this does not create an pro the district court with to exercise ceeding. only interest to be considered spouse’s statutory is that of the ward. Id. This is not a will right against to elect the will of his or her disguise. contest in If the ward renounces spouse. deceased KRS 392.080. will, give executor still effect nothing This issue probate testator’s has do with remaining wishes to the extent administration, or powers even the a possible. of guardian appointed 387.500, Lastly, Appellee holding warns our seq. right against et elect will is open box Pandora’s personal surviving spouse, to the plethora over a of cases v. Harding’s Adm’r outside the realm of legisla- the intent (1910), has no ture. emphasize We We our right against to elect onwill behalf of his holding in this case is limited to the issue Instead, that election can be exer Namely, court, before it. a district under only equity upon finding cised be in the ward’s best give effect to the renunciation of will interests. Ex’r guardian of incompetant adult. We reach (1932); 1061-62 plain, this conclusion from the literal mean- ing of Assembly. the words of the General Ky.App., Undeniably, the modern district court is Strunk v. cf. capable deciding whether renunciation of Strunk, Ky., 445 S.W.2d 145 Har- a ward’s best interest. The ding’s supra, Ex’r. pro- over the 1099. The district court is not a court of bate of a and the fact, equity specifi- matters of testate and intestate decedents’ estates. cally excluded 24A.120(2); 394.140; 24A.120(1). KRS district court. This kind of copyA seeking judgment” action a “substituted a will must be filed vrith the district court personal right usually and the district authority court has the brought declaratory judg- form a period action, extend the for renunciation. KRS ment see through DeGrella 392.080(1). Clearly, Elston, in absurd and Parrent consequences do not brought result ie., respectfully dissent Accordingly, jurisdiction, the circuit of the Jefferson 418.040; affirm the decisions would Court, Circuit the Jefferson District characterized Even if this action could be Appeals. and the Court “probate,” one to mat- court is limited diction of WINTERSHEIMER, JOHNSTONE adversary proceed- in an ters not contested JJ., Goldstein, join 24A.120; ing. West Porter, Lee v.. Ky.App., 598 S.W.2d being contested

proposed election is estate;

executrix the deceased adversary proceeding is an court has no

which the district Committee, Inc., Vega v. Kosair Charities

Cf. Ky.App.,