ENGLE FUNERAL HOME, INC. v. PEGGY STERLING, ADMINISTRATOR OF THE ESTATE OF FIELDEN CORNETT, DECEASED
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RENDERED: November 21, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000189-MR
ENGLE FUNERAL HOME, INC.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS C. COMBS, JUDGE
ACTION NO. 02-CI-00328
v.
PEGGY STERLING, ADMINISTRATOR
OF THE ESTATE OF FIELDEN CORNETT,
DECEASED
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND McANULTY, JUDGES.
BARBER, JUDGE:
The Appellant, Engle Funeral Home, Inc.
(“Engle”), appeals from a summary judgment of the Perry Circuit
Court entered in favor of the Appellee, Peggy Sterling,
Administrator of the Estate of Fielden Cornett, Deceased.
We
reverse and remand for further proceedings.
Fielden Cornett died on March 18, 1996.
Ronald
Cornett, one of his children, made the arrangements and signed a
contract with Engle for funeral goods and services dated March
18, 1996.
On June 24, 1996, Ronald Cornett was appointed
Executor, but later removed, and Peggy Sterling was appointed
personal representative, thereafter.
Engle filed a claim
against the Estate for funeral expenses, but admittedly not
within six months of the appointment of the personal
representative.
On June 21, 2002, Engle filed a complaint in the Perry
Circuit Court against the Estate seeking a judgment for the
funeral expenses owed under the contract, plus interest.
On
January 7, 2003, the Perry Circuit Court entered the following
Order and Final Judgment:
This matter came on for hearing on cross motions
for summary judgment. The Court having considered
both motions, the memoranda, and arguments of
counsel finds that there exists no genuine issue
of material fact that plaintiff Engle Funeral Home
entered into a contract with Ronald Cornett
individually, and that it failed to comply with
K.R.S. 396.035, which required it to submit a
proof of claim for payment within six months of
the appointment of Ronald Cornett as Executor of
the Estate of Fielden Cornett. Defendant Estate
is entitled to judgment as a matter of law. For
these reasons, summary judgment in favor of
defendant is granted and the plaintiff’s complaint
be, and the same hereby is, dismissed with
prejudice.
On January 24, 2002, Engle filed a notice of appeal.
On appeal, Engle asserts that the circuit court erred, because
the sixth-month time limitation to file a claim against an
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estate set forth in KRS 396.011 does not apply.
Engle maintains
that KRS 396.011 applies only to claims that arose during the
decedent’s lifetime.
The Estate asserts that Engle misperceived
the basis of the trial court’s ruling, because the trial court
does not refer to KRS 396.011.
We note, however, that the
Estate argued that the six-month bar in KRS 396.011 applied, in
its memorandum of authorities filed in the trial court.
KRS 396.035, cited by the trial court, requires that a
claim be presented to the personal representative as a condition
precedent to filing suit.
The statute provides:
No action shall be brought against a personal
representative on a claim against decedent's
estate unless the claimant shall have first
presented his claim in the manner described in KRS
396.015. The foregoing limitation shall be in
addition to that limitation on the commencement of
an action against a personal representative set
forth in KRS 395.270.1
The methods for presenting a claim to the personal
representative are outlined in KRS 396.015(1), and include
delivering or mailing a written statement of the claim to
the personal representative, or filing a written statement
of the claim with the clerk of the court.
KRS 396.011(1) is a statute of limitation for
presenting certain claims against a decedent’s estate:
1
KRS 396.270 provides that no action shall be commenced against
any executor or administrator before two months have run after
the date of qualification of the first personal representative.
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All claims against a decedent's estate which
arose before the death of the decedent, excluding
claims of the United States, the state of
Kentucky and any subdivision thereof, whether due
or to become due, absolute or contingent,
liquidated or unliquidated, founded on contract,
tort, or other legal basis, if not barred earlier
by other statute of limitations, are barred
against the estate, the personal representative,
and the heirs and devisees of the decedent,
unless presented within six (6) months after the
appointment of the personal representative, or
where no personal representative has been
appointed, within two (2) years after the
decedent's death. (Emphasis added)
Engle asserts that the sixth-month limitation is not a
bar, because the statute only applies to those claims that arose
prior to the decedent’s death.
In response, the Estate cites
Rose v. Rose2 as holding that that the “funeral bill was an
enforceable claim against the estate if properly
presented. . . .”
Rose was decided long before the enactment of
the current statutory scheme.
The issue there was whether the
widow was liable as administratrix for payment of a funeral
bill.
She had distributed the estate believing that her son had
paid the bill, in accordance with their agreement, with proceeds
from her husband’s life insurance policy naming the son as
beneficiary.
The court held that there was no indication the
administratrix had distributed the estate in bad faith.
2
287 Ky., 224, 152 S.W.2d 603 (1941).
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The quotation from Rose, cited in the Estate’s brief,
is in the context of which debts were properly payable out of
settlement proceeds recovered for the decedent’s death:
The record is not clear as to the source of the
$2,750 item received by the administratrix, but
there is an intimation in the proof and briefs
that she instituted an action for damages against
the person responsible for her husband's death
and that the case was settled by the payment to
her of $2,750 by the defendant's insurance
carrier. If the action was one falling within
the purview of section 6 of our Statutes, the
debts of the decedent existing at the time of his
death were not payable out of the fund recovered
without the consent of the beneficiaries of the
recovery. That section provides in part that if
the deceased leaves a widow and children, the
amount recovered, less funeral expenses and the
cost of administration and such costs about the
recovery, including attorney fees as are not
included in the recovery from the defendant,
shall be for the benefit of and go one-half to
such widow and the other one-half to the children
of the deceased. . . . Regardless of the nature
of the recovery, the funeral bill was an
enforceable claim against the estate if properly
presented and in the absence of an agreement that
it should be paid out of other funds as claimed
by appellee.3
Whether funeral expenses are subject to the statutory
requirements for presenting a claim against a decedent’s estate
has been discussed at 17 A.L.R. 4th 530,4 Claims for expenses of
last sickness or for funeral expenses as within contemplation of
statute requiring presentation of claims against decedent’s
3
4
Id., at 604-05
1982.
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estate, or limiting time in bringing action.
Section 2 of the
annotation provides an overview:
As a general rule, it is clear that claims
against the estate of a decedent must be
presented in accordance with local statutory
requirements. The word "claims," as used in
nonclaim statutes, has been construed to mean
debts or demands of a pecuniary nature that could
have been enforced against the deceased in his
lifetime and could have been reduced to a simple
money judgment. Thus, it has been held that
claims for the expenses of a decedent's last
illness, having arisen during his lifetime, must
be presented pursuant to statutory
requirement . . . and that if such claims are
rejected, an action thereon must be commenced
within the time limit established by statute or
be forever barred. . . . It has been said to be
unnecessary to present a claim that does not
arise until after the death of the testator or
intestate. Therefore, certain courts have held
that claims for funeral expenses need not be
filed as required by statute for other claims,
since funeral expenses clearly are incurred after
the death of the decedent . . ., especially where
the statute specifically refers to debts incurred
during the deceased's lifetime; and those courts
so holding have said that with regard to those
claims rejected by the personal representative of
an estate, action thereon need not be commenced
within the statutory time
limit. . . . On the other hand, other courts
have held that a claim for funeral expenses must
be filed pursuant to the statute . . ., and that
a failure to file suit after rejection of a claim
for funeral expenses within the time set by the
statute will bar recovery thereon.
The annotation refers us to an old Kentucky case, Stout
v Bradley,5 as holding that funeral expenses must be presented in
5
260 Ky., 275, 82 S.W.2d 201 (1935).
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accordance with the statutory requirements; however, we cannot
conclude from our reading of the case that the issue was actually
litigated.
Stout involved a suit against the personal
representative’s attorneys to require them to pay the funeral
bill out of the attorneys' fee they had collected.
The court
refused to set aside the settlement of the estate where the bill
for the decedent’s funeral expenses had not been presented or
filed by the undertakers.
In another old Kentucky case, Lay v. Lay,6 the court
held that the verification requirements of Kentucky’s nonclaim
statutes did not apply to burial expenses.
There, as here, a
family member had contracted for the burial prior to appointment
of a personal representative.
As to the claim of L. C. Lay it is shown that he
was sick in a hospital at the time of his
stepfather's death and that his mother looked
after the burial of the latter and that in so
doing she incurred the burial expense of $100;
that the brothers and sisters of the deceased
failed to pay this bill, and that after his
recovery and at the urgent insistence of his
mother, who was greatly distressed about it, he
paid the bill and took a receipt therefor.
In doing this we cannot say that he acted as a
volunteer. It has always been recognized as one
of the first duties of the living to see that the
dead are properly interred. The care and
religious solemnity with which such obsequies were
attended in ancient times are a matter of history.
The Roman law made the cost of burial a charge
6
Ky., 255 S.W. 1054, 1055 -1056 (1923).
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against the heirs, if not otherwise paid, and
under the common law it has always been recognized
to be just and proper for the expense of decent
interment to be paid out of the estate of the
decedent, when he left property sufficient for
that purpose. 8 R. C. L. pp. 688-690.
Under our statute a burial bill is made a
preferred claim against the estate. Naturally a
moral, if not a legal obligation rested upon the
widow to see that such interment was had, and,
when in the absence of a personal representative
she did this, there can be no doubt that the
estate became liable to her or to the one with
whom she contracted for the reasonable expense of
such burial. In view of the relationship existing
between the parties we can see no reason why her
son at her request should not pay this bill, take
an assignment thereof, and be subrogated to her
rights therein; as it is not intimated that the
prices charged were unreasonable the chancellor
did not err in so holding.
Complaint is made that there was no verification
or demand made upon the claims allowed as required
by sections 3870-3872, Ky. Statutes. This being a
suit against the heirs, no demand was necessary.
Hill's Adm'r v. Grizzard, 133 Ky., 818, 119 S.W.
168. Nor was it necessary for L. C. Lay to make
verification thereof as section 3870, Ky.
Statutes, applies only to obligations that were
created by the decedent, and not by those created
by a personal representative, or persons acting in
his stead. Berry v. Graddy, 1 Metc. 553: Crenshaw
v. Duff, 113 Ky., 912, 69 S.W. 962, 24 Ky. Law
Rep. 718. (Emphasis added) 7
This holding is consistent with a recent decision of
this Court construing KRS 396.011, Batson v. Clark.8
Batson
involved a claim for breach of a lease and conversion.
There, a
dispute arose when the executor of the landlord’s estate decided
7
8
Id., at 1055-56.
Ky. App., 980 S.W.2d 566 (1998).
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to change the terms of the lease and sell the property before
expiration of the lease term.
Batson contains a detailed
discussion of Kentucky’s nonclaim statutes:
Batson [the Executor of Margaret’s estate] argues
that because appellees did not file their claim [for
breach of the lease and conversion] against . . .
[the] estate within six (6) months after Batson's
appointment as executor, their claim was barred in
the first place under KRS 396.011(1). . . .
. . .
We disagree with Batson's position. In fact, we
do not consider appellees' allegations to be
probate-type "claims" at all, i.e., they arose
after the death of the decedent . . . , and
represent obligations created . . . by the
executor himself for actions he took after
Margaret's death. In other words, appellees'
cause of action accrued against the executor of
Margaret's estate, not against Margaret. As used
in probate statutes, such as KRS 396.011, which
limit the time frame in which creditors may
present their claims against an estate
("nonclaim" statutes, as they are routinely
called), the word "claim" generally refers to
"debts or demands against the decedent which
might have been enforced against him during his
lifetime ...." 31 Am.Jur.2d Executors and
Administrators § 603 (1989) (Emphasis added).
Margaret took no action during her lifetime which
would have prompted this litigation and, thus,
appellees could not have enforced these claims
against Margaret during her lifetime because they
had not yet accrued. KRS 396.035 states in part
that "[n]o action shall be brought against a
personal representative on a claim against
decedent's estate unless the claimant shall have
first presented his claim [to the personal
representative] in the manner described in KRS
396.015." . . . Kentucky's case law interpreting
[the precursor to KRS 396.035] . . . supports our
conclusion that appellees' claims were not
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subject to formal presentation in the first
place.
. . .
In the present case, appellees' claim is against
Margaret's executor and, as such, we do not
believe appellees' claims are subject to the
deadlines set out in KRS 396.011(1) . . . .
Further, we do not believe the fact that
appellees actually filed a claim against the
estate, later denied by Batson, is significant.
Based upon the above-cited case law, appellees'
allegations are not in that class of "claims"
which must be filed against the estate prior to
bringing suit. Thus, appellees had no obligation
to file an initial claim against Margaret's
estate, despite the fact they did. (Emphasis
added)
Consistent with the reasoning in Batson, we conclude
that Engle’s claim is not subject to the six-month limitation in
KRS 396.011(1) for presenting claims under KRS 396.035, because
it is not a claim “against a decedent's estate which arose before
the death of the decedent . . . .”
Accordingly, we do not reach
Engle’s remaining argument.9
We believe that the applicable statute in the case sub
judice is KRS 396.205 entitled “Limitation on actions not
otherwise barred” which provides:
Notwithstanding any other statute to the contrary,
no cause of action on any claim not otherwise
barred by the provisions of KRS 396.011 and KRS
9
We do note a recent law review article on the subject. Noel,
Mark A., DUE PROCESS AND KENTUCKY’S NON-CLAIM STATUTES: A CALL
FOR LEGISLATIVE REVISION, 91 Ky.L.J. 231, Kentucky Law Journal
2002-2003 Notes.
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396.055(1), or any other applicable statute of
limitations, shall be brought against the personal
representative or against any distributee after
the expiration of two (2) years from the date of
the order of discharge of the personal
representative. The foregoing limitation shall
not preclude an action by any claimant against the
personal representative or any distributee for
fraud.
We cannot determine from the record before us whether
or not KRS 396.205 bars Engle’s claim.
Thus, we reverse and
remand for further proceedings consistent herewith.
McANULTY, JUDGE, CONCURS.
DYCHE, JUDGE:
CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James E. Hibbard
London, Kentucky
Nancy M. Collins
Hazard, Kentucky
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