text:
    John H. WHITE, widower of Louise Faye White, Appellant, v. STEWARTS DRY GOODS COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    Rehearing Denied Feb. 6, 1976.
    James R. Mansfield, Jr., Stuart E. Alexander, Louisville, for appellant.
    Brown, Todd & Heyburn, Charles S. Cas-sis, Timothy W. Martin, Louisville, for ap-pellees.
   CULLEN, Commissioner.

In January 1973 Louise Faye White, an employed woman, was killed in an accident in the course of and arising out of her employment. Her husband, John H. White, sought to recover workmen’s compensation benefits as surviving spouse. The Workmen’s Compensation Board rejected the claim because John was not in fact dependent on his wife. On appeal to the circuit court judgment was entered upholding the board’s order of dismissal. John has appealed here from that judgment. His sole contention is that legislative changes in the Kentucky workmen’s compensation law, in 1972, abolished the formerly existing requirement that a surviving husband be actually dependent on his wife in order to draw benefits as surviving spouse.

Prior to 1972, the statutes relating to workmen’s compensation benefits for survivors of a deceased worker were KRS 342.-070 and 342.075. KRS 342.070 provided in substance that upon the death of a worker as a result of a compensable accident, specified benefits would be payable to “dependent” persons. KRS 342.075 set forth the rules for determination of dependency, including presumptions of dependency for widows, widowers or children under specified circumstances, a requirement of proof of actual dependency in absence of the presumption, and a condition of dependency, except as to certain named relatives, that the person have been living in the household of the deceased worker. In substance, the presumption of dependency created by KRS 342.075 applied to all widows (except one who had abandoned her husband) but applied to widowers only if they were incapacitated from wage-earning. So, under the statutes as they existed prior to 1972, John White, not being incapacitated from wage-earning and not being actually dependent on his wife, would not have been entitled to benefits.

The 1972 legislation, on which John relies, specifically repealed KRS 342.070, made no mention of KRS 342.075, and created KRS 342.620 and 342.750 (in addition to which it made many other changes in the workmen’s compensation law not relevant to the question here in issue). The only provision of KRS 342.620 of any significance here is paragraph (10), which defines “income benefits” to mean payments made under the workmen’s compensation law to the disabled worker “or his dependents in case of death” (our emphasis), this being significant because KRS 342.750, in specifying what benefits are payable to surviving relatives of a deceased worker, uses the term “income benefits.”

The relevant portion of KRS 342.750 is as follows:

“If the injury causes death, income benefits shall be payable in the amount and to or for the benefit of the persons following, subject to the maximum limits specified in subsections (3) and (4) of this section:

(l)(a) If there is a widow or widower and no children of the deceased, to such widow or widower 50 per cent of the average weekly wage of the deceased, during widowhood or widowerhood.
(b) To the widow or widower, if there is a child or children living with the widow or widower, 45 per cent of the average weekly wage of the deceased, or 40 per cent, if such child is not or such children are not living with a widow or widower, and in addition thereto, 15 per cent for each child. Where there are more than two (2) such children, the indemnity payments payable on account of such children shall be divided among such children, share and share alike.
(c) Two (2) years’ indemnity benefits in one (1) lump sum shall be payable to a widow or widower upon remarriage.
(d) To the children, if there is no widow or widower, 50 per cent of such wage for one (1) child, and 15 per cent for each additional child, divided among such children share and share alike.
(e) The income benefits payable on account of any child under this section shall cease when he dies, marries, or reaches the age of eighteen (18), or when a child over such age ceases to be physically or mentally incapable of self-support, or if actually dependent ceases to be actually dependent, or, if enrolled as a full-time student in any accredited educational institution, ceases to be so enrolled or reaches the age of 22. A child who originally qualified as a dependent by virtue of being less than 18 years of age may, upon reaching age 18, continue to qualify if he satisfies the tests of being physically or mentally incapable of self-support, actual dependency, or enrollment in an educational institution.
(f) To each parent, if actually dependent, 25 per cent.
(g) To the brothers, sisters, grandparents, and grandchildren, if actually dependent, 25 per cent to each such dependent. If there should be more than one (1) of such dependents, the total income benefits payable on account of such dependents shall be divided share and share alike.
(h) The income benefits of each beneficiary under paragraphs (f) and (g) above shall be paid until he, if a parent or grandparent, dies, marries, or ceases to be actually dependent, or, if a brother, sister, or grandchild, dies, marries, or reaches the age of eighteen (18) or if over that age ceases to be physically or mentally incapable of self-support, or ceases to be actually dependent.
(i) A person ceases to be actually dependent when his income from all sources exclusive of workmen’s compensation income benefits is such that, if it had existed at the time as of which the original determination of actual dependency was made, it would not have supported a finding of dependency. In any event, if the present annual income of an actual dependent person including workmen’s compensation income benefits at any time exceeds the total annual support received by the person from the deceased employe, the workmen’s compensation benefits shall be reduced so that the total annual income is no greater than such amount of annual support received from the deceased employe. In all cases, a person found to be actually dependent shall be presumed to be no longer actually dependent three (3) years after each time as of which the person was found to be actually dependent. This presumption may be overcome by proof of continued actual dependency as defined in this subsection, but full payments shall not be suspended during the pendency of any proceeding to determine dependency.”

It will be noted that in referring to widows or widowers, KRS 342.750 nowhere uses the word “dependent.” This fact is the primary basis for John White’s argument that actual dependency is no longer a requisite of benefits for a widower, and that KRS 342.075 was impliedly repealed to the extent that it provided rules for determining the dependency of a widow or widower. In effect, John’s contention is that KRS 342.750 so obviously and plainly eliminates the requirement of dependency of a widow or widower as to make clear the intent of the legislature to repeal KRS 342.075. We are not so persuaded.

Our primary reason for not being persuaded that the legislature no longer intended dependency (either presumed or actual) to be a requisite for the payment of benefits to a widow or widower rests on the fact, of which counsel for appellant and appellees all seem to be blissfully unaware, that the 1974 legislature amended KRS 342.075 to provide that the presumption of dependency as to a widow who had not abandoned her husband shall apply equally as to a widower who had not abandoned his wife. This legislative action is totally inconsistent with the theory that the legislature in 1972 intended to abolish any requirement of dependency as to a surviving spouse.

Had Mrs. White died after the effective date of the 1974 amendment, John would be entitled to benefits as a presumed-dependent survivor (not on the basis that the requirement of dependency had been eliminated). The problem is that she died at a time when the statutes did not provide a presumption of dependency for an able-bodied widower.

The judgment is affirmed.

All concur except LUKOWSKY, J., who did not sit.


source: Caselaw Access Project

author: PALMORE, Justice.

license: Public Domain

text:
    Cecil PENDLETON, by his next friend, William F. Gadd, Appellant, v. Bee PENDLETON et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    Rehearing Denied Feb. 6, 1976.

      William C. Jacobs, Lexington, for appellant.
    Edward P. Roark, Lancaster, Phillip D. Scott, McDonald, Alford & Roszell, Scotty Baesler, Lexington, for appellees.
   PALMORE, Justice.

Cecil Pendleton, an infant proceeding by next friend, brought this action in the Fa-yette Circuit Court to pursue certain assets, including real estate located in Fayette County, theretofore disposed of by the administrator and apparent heirs and distribu-tees of Cornelius Pendleton, who had died intestate a resident of Garrard County. The gist of Cecil’s claim is that he was Cornelius Pendleton’s only child and sole heir and distributee. He appeals from a judgment dismissing the action.

According to the record, Cecil is the natural child of Cornelius by Bethel Rawlins. He was bom in 1956. In a bastardy proceeding brought in 1959 the Fayette County Court adjudged that Cornelius was the father and directed that he support the child. A breach of promise suit brought in 1960 by Bethel Rawlins against Cornelius in the Fa-yette Circuit Court was dismissed pursuant to a jury verdict finding that when the alleged promises of marriage were made Bethel was already married to one Arnold Wasson. Cornelius died in 1966. He was unmarried and except for Cecil had no children.

The complaint consisted of two counts. Count 1 asserted a claim against the administrator, his surety, and the persons to whom the administrator allegedly had distributed the assets of the estate, and it demanded a redistribution. Count 2 alleged that the defendants other than those named in Count 1 had become the record owners of real estate in Fayette County owned in fee simple by Cornelius Pendleton at the time of his death, and it demanded that Cecil be adjudged the owner of this property or that he recover its value from the respective defendants holding record title.

By an amended complaint Cecil alleged that two of the distributees, a brother and nephew of Cornelius, had executed and caused to be recorded in the office of the Fayette County Court Clerk a false affidavit or affidavits of descent purporting to show the heirs of Cornelius Pendleton, knowing such information to be false, that Cecil was thereby damaged in that the affidavits were relied upon in effecting transfers of the property, and that the affiants were liable for such damages pursuant to the penalty provisions of KRS 382.990(2).

The trial court determined that as to the administrator and distributees the venue of the action was improper because KRS 452.-415 and 452.420 required it to be brought in Garrard County. The suit was thereupon dismissed as to them, but as against the purchasers of real estate in Fayette County venue was held proper under KRS 452.400.

We are of the opinion that the trial court was correct in adjudging that KRS 452.415 and 452.420 require the kind of action stated in Count 1 to be brought in the county in which the personal representative qualified, which in this instance was Garrard County. Cf. Fleece v. Shackelford, 204 Ky. 841, 265 S.W. 460 (1924).

The allegations of the amended complaint with reference to the affidavits of descent presented an entirely new and different cause of action from that stated in Count 1, and it may be that by virtue of KRS 452.460(1) the venue of such an action would lie in Fayette County on the theory that it was there that the injury was done. We need not so decide, however, because we are of the opinion that in any event the facts alleged in the complaint and amended complaint negate the existence of a cause of action under KRS 382.990(2). Hence the defendants in question were entitled to a dismissal pursuant to their defense that the amended complaint failed to state a claim upon which relief could be granted. Our conclusion in this respect is founded on the premise that the only possible basis for Cecil’s claim of heirship is that KRS 391.-090(2), which provides that a “bastard shall inherit only from his mother and his mother’s kindred,” violates the equal protection clause of the 14th Amendment and that an illegitimate child must be accorded the same rights of inheritance as a legitimate child. The affidavits in question were executed and filed in 1966, at which time the state of the law was such that the affiants could not possibly have been charged with knowledge that an illegitimate child in this state would be held an heir of its father. For this reason they could not have been guilty of any actual fraud.

Turning now to the remaining aspects of the litigation, we concur in the trial court’s conclusion that venue of an action to recover real estate through assertion of a hitherto-unrecognized heirship is laid by KRS 452.400(1) in the county in which the land or some part of it is situated. The precedents cited by appellees to the contrary do not support their position. Some of them did not involve real estate, and those that did were cases in which the object of the litigation was to partition, or to sell and divide the proceeds from, land held jointly by inheritance or devise. “An action for the partition of the real estate of a deceased person, under section 66 of the Civil Code [KRS 452.420] must be brought in the county in which the personal representative qualified.” Boreing v. Melcon, 159 Ky. 14, 166 S.W. 612 (1914).

It is significant to note that subsections (2) and (3) of KRS 452.400, which cover suits for partition or sale of real property, specifically exclude actions covered by KRS 452.420, whereas there is no such exception to subsection (1).

Cecil’s claim as the heir of his father is made in the alternative, as follows:

KRS 391.100 provides (1) that the issue of an incestuous marriage is not legitimate and (2) that “the issue of all other illegal or void marriages is legitimate.” Cecil alleges that he was born during the existence of a common-law marriage between his mother and father which, though prohibited and void by virtue of KRS 402.020(4), was a marriage within the terms of KRS 391.-100(2). If, on the other hand, it be held otherwise, he contends that under the equal protection clause of the 14th Amendment he is entitled to inherit from his father regardless of KRS 391.090(2).

The child of a common-law marriage entered into in a state that permits such marriages is legitimate in this state even though for some reason the marriage was void in the first instance. Cf. Copenhaver v. Hemphill, 314 Ky. 356, 235 S.W.2d 778 (1951). But in this state there is no such thing as a common-law marriage. What might be a common-law marriage somewhere else is no marriage at all here. As distinguished from being “void” or “illegal” it simply does not exist as a “marriage” of any kind. We construe KRS 391.-100(2) as referring to a marriage that to outward appearances would substantially comply with the legal requirements of a marriage in the state in which it is performed. Cf. Helm v. Goin, 227 Ky. 773, 14 S.W.2d 183, 185 (1929).

The trial court held that the 1959 county court judgment in the bastardy proceeding was res adjudicata to Cecil’s claim of legitimacy in this proceeding. We express no opinion in that respect.

In Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971), the Supreme Court of the United States held by a 5-4 vote that a state law (Louisiana) barring an illegitimate child from inheriting from its father equally with legitimate children has a rational basis and does not violate the equal protection clause of the 14th Amendment. By a per curiam opinion joined in by seven of its members the same court in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), held that Texas statutes giving legitimate children an enforceable right of support against the father but not extending the same right to illegitimate children were discriminatory and denied to illegitimate children the equal protection guaranteed by the 14th Amendment.

In Gomez no reference was made to La-bine. It was observed, however, that in the areas of wrongful death and workmen’s compensation it had been settled by previous decisions that “a State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded children generally.” Cf. Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1971). In Weber, Labine had been distinguished as follows:

“That decision reflected, in major part, the traditional deference to a State’s prerogative to regulate the disposition at death of property within its borders. The Court has long accorded broad scope to state discretion in this area. Yet the substantial state interest in providing for ‘the stability of . land titles and in the prompt and definitive determination of the valid ownership of property left by decedents,’ Labine v. Vincent, 229 So.2d 449, 452 (La.App.1969), is absent in the case at hand

“Moreover, in Labine the intestate, unlike deceased in the present action, might easily have modified his daughter’s disfavored position [by will or by marriage to her mother]. . . . The burdens of illegitimacy, already weighty, become doubly so when neither parent nor child can legally lighten them.”

It is readily apparent that the meaning of the equal protection clause cannot be ascertained from what it says, nor even from what the Supreme Court has said about it. As in Regina v. Ojibway a pony was found to be a small bird, so under the 14th Amendment an illegitimate child may be either a speckled bird or a jackass, depending on its current aspect as (and when) viewed by the keeper of the royal secrets of the Constitution. Indeed it appears that here is a corner of the world Alice in Wonderland would not find unfamiliar.

From time immemorial the law of this state has recognized and enforced the responsibility of a father for the support of his illegitimate child, notwithstanding the vicissitudes of proof. Since it is now held by the court of last resort in the federal constitutional field that a child’s right of support from its father is within the coverage of the equal protection clause and, if accorded to legitimate children in general, must be accorded to illegitimate children as well, it would be our inclination to hold that although a right of inheritance may not have the immediacy or social significance of a present need for support, yet a right is a right, the existence of which surely ought not to depend on whether it falls within the ambit of state-enforced welfare legislation. If a state cannot constitutionally force a father to support his children without including illegitimate children, we can find no justification in logic for its authority to deny illegitimate children the same right of inheritance conferred upon other children. Though the right has something of a fugitive nature in that the father may of course discriminate against any child, legitimate or illegitimate, it seems incongruous that the state should be allowed to do it for him. But after all, this is mere logic, which seems to have a declining importance in the world of constitutional jurisprudence.

We are equipped with neither a crystal ball nor the type of scales on which it is evident that a right must be weighed in order to determine whether it is heavy enough to register under the 14th Amendment. Nor are we willing to undertake the sophistry of distinguishing Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). Suffice it to say that it has not been overruled by the court that has the exclusive power to overrule it, and we think that as long as it remains the law it governs this case.

The judgment is affirmed.

All concur except LUKOWSKY, J., not sitting.

       Reprinted by permission in Stevens v. City of Louisville, Ky., 511 S.W.2d 228, 230-231 (1974).


author: VANCE, Commissioner.

text:
    George R. WAGONER, acting Commissioner of Labor, etc., Appellant, v. Basil HOPKINS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 3, 1975.
    Rehearing Denied Feb. 6, 1976.

      John L. Pendley, Earl M. Cornett, Dept, of Labor, Frankfort, for appellant.
    C. Kilmer Combs, Kelsey E. Friend, Baird & Baird, Pikeville, G. Edward James, Acting Director, Workmen’s Compensation Board, Dept, of Labor, Frankfort, for appel-lees.
   VANCE, Commissioner.

The appellee, Basil Hopkins, was afflicted with pneumoconiosis in 1968 and was so advised by his physician. At that time he was employed by Madge Creek Coal Company. Despite knowledge that he had contracted the disease, he continued working in the mines until February 5, 1970. On February 5, 1970, he was injured and did not work again until August 2, 1970, when he returned to the mines as an employee of Lawson & Jones Coal Company. He worked for that company until December 23, 1971 when he commenced work for the appellee, Mountain View Coal Company, and he worked for Mountain View until June 21, 1972, at which time he became unable to work by reason of his pneumoco-niosis.

The record does not show that he gave notice of disability until he filed his application for benefits on March 7,1973, in which he named as defendants the Mountain View Coal Company, Ratliff Coal Company and the Special Fund.

Notice of resistance of claim was filed by the employer-defendants and three defenses were presented by a special answer. They were (1) the claim was barred by statute of limitations KRS 342.316(3); (2) the notice required by KRS 342.316(2) was not given; and (3) claimant was not exposed to the hazards of the occupational disease for at least two years immediately before his claimed disability. KRS 342.316(4).

The Special Fund filed a notice of resistance of the claim.

The deposition of the plaintiff was taken on August 10, 1973. The Special Fund was not represented at the taking of the deposition. Counsel for the claimant and counsel for the employer-defendants stipulated that due and timely notice of the plaintiff’s claim was given to the employer.

The board dismissed the claim for failure to give timely notice of disability despite the stipulation. By reason of the dismissal it was unnecessary for the board to consider the other defenses or the claim on its merits.

On appeal to the Pike Circuit Court, the stipulation as to notice was held to remove the question of notice as an issue and the matter was remanded to the board for a determination of the other issues. The Special Fund appeals.

The Special Fund was not a party to the stipulation and the stipulation is not binding upon it. KRS 342.316(2) requires only that notice be given to the employer. Notice to the Special Fund is not required. Nevertheless in cases where the disability cannot be proved to have resulted entirely as a consequence of the last employment most, if not all, of the compensation is required to be paid by the Special Fund.

We see no reason why the Special Fund is not entitled to insist upon compliance with all procedural steps required by statute including the giving of timely notice. Cf. Yocom v. Harrison, Ky., 517 S.W.2d 231 (1974). The employer, who will bear little or no monetary liability under the statute, should not be permitted to waive compliance with the statute or to bind the Special Fund by a stipulation to which it was not a party.

There was no evidence in the record that timely notice was given. The dismissal of the claim against the Special Fund was proper. As to the employer, we regard the stipulation as binding and the matter should be remanded to the board for a determination on the merits as to the liability, if any, of the employer.

The judgment is affirmed in part and reversed in part with directions that a new judgment be entered in conformity with this opinion.

All concur except LUKOWSKY, J., not sitting.


author: CATINNA, Commissioner.

text:
    N. H. STONE COMPANY et al., Appellants, v. Dallas Ray HARRIS et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    Rehearing Denied Feb. 6, 1976.
    W. R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, for appellants.
    David LeMaster, Perry & LeMaster, Paintsville, for appellees.
   CATINNA, Commissioner.

N. H. Stone Company and Liberty Mutual Insurance Company appeal from a judgment of the Montgomery Circuit Court reversing an order of the Workmen’s Compensation Board dismissing the claim of Dallas Ray Harris.

Dallas Ray Harris, Gary Hall, and Paul Hall resided near Topmost in Knott County, Kentucky, some thirty to thirty-five miles south of Prestonsburg. They were the members of a crew employed by N. H. Stone Company on a highway project north of Nashville, Tennessee. This crew usually remained in Tennessee during the week but returned to their individual homes on weekends. They took turns driving from Topmost to the job location near Nashville.

Their customary route was to travel from home to Prestonsburg, then along the Mountain Parkway until it intersected with 1-64 near Winchester, along 1-64 to Lexington, from Lexington to the Bluegrass Parkway, and then along the parkway and 1-65 to the job site.

On the afternoon or in the early evening of February 11, 1973, Allen Bailey, their foreman, telephoned them with instructions to stop at Mt. Sterling on their way to work the following morning and pick up a company truck. At about 3 a. m. on February 12 they left Topmost in Gary Hall’s automobile with Dallas Ray Harris riding on the back seat. They proceeded along their usual route to work until they arrived at a point where Highway 11 intersects the Mountain Parkway. Here, they left the parkway and traveled along Highway 11 toward Mt. Sterling. Just before they reached Mt. Sterling, some fifteen miles distant, they were involved in an accident in which Dallas Ray Harris suffered serious and lasting injuries by reason of which he is now a permanent paraplegic.

Harris’ application for adjustment of claim was dismissed by the Workmen’s Compensation Board because the injuries which resulted in his disability were not work related. The board was of the opinion that Harris’ injury occurred while he was “just riding to work” and was not, therefore, work related.

This claim was contested upon the theory that at the time Harris was injured he was just riding to work and not covered by the Act. The employer insisted that the fact that the foreman, Allen Bailey, had contacted Gary Hall on the preceding night and asked him to pick up a company truck to be driven to Nashville had no significance in the case because basically Harris “was just riding to work.” It was inferred that the instructions to pick up the truck were addressed solely to Gary Hall and that the evidence of the business detour completely excluded Harris as a participant.

However, it is an undisputed fact that if Allen Bailey had not called and asked one of the crew to pick up the truck at Mt. Sterling the three men would not have left the Mountain Parkway on their way to work. The foreman’s undenied testimony details the purpose of the trip to Mt. Sterling. He testified:

“Q. I want to ask you if on a Sunday, which would be February 11, 1973 before this accident happened on February 12, 1973, you had occasion to make a phone call from your residence at Mt. Sterling on behalf of your employer, N. H. Stone Company?
A. Yes, sir.
Q. Who did you make that phone call to?
A. I tried about three or four different ones. I finally got hold of Gary, is the only one I could get hold of.” ******
“Q. Now, for what purpose were you trying to get hold of these people?
A. Well, to give them a source of information what the plans were the following week, like we were going on out ahead, me and this other foreman was, and I wanted them to come by and pick my pick-up up in Mt. Sterling and bring it down as they came, for the sole reason we was planning on, and we did . we was planning on bringing our equipment in and we had four or five trucks down there and we needed drivers not driving automobiles to drive it back. We wanted them to drive the pick-up truck so they wouldn’t have their own cars. They could drive the trucks on home.”
“Q. When you called Gary Hall you didn’t designate any particular man that was supposed to drive the pickup truck when they got in it, did you?
A. No. I mean they was all there and they could all drive, and I didn’t say no particular one drive. They possibly would have, and they do do it, even taking turns. From there to Nashville, that’s a right smart little drive straight through.” (Emphasis ours.)

These undisputed facts conclusively establish that the foreman directed the three men to leave their customary route of travel to work along the Mountain Parkway and proceed to Mt. Sterling in order to get a truck, loaded with tools and supplies, belonging to their employer. The foreman did not direct any particular member of the crew to drive the truck from Mt. Sterling to Nashville but said that he expected them to take turns driving. Clearly, it was the foreman’s intention that all three of them should ride in the truck from Mt. Sterling to Nashville so that they would be available to drive other equipment belonging to the company. At the time Harris and the others left the Mountain Parkway their mission was one being undertaken solely at the request of the foreman and for the purpose of promoting the business of their employer.

As the facts concerning the Mt. Sterling trip are undisputed, the question of whether Harris’ injuries were work related is one of law. Cf. Brewer v. Millich, Ky., 276 S.W.2d 12 (1955).

It is insisted that this case falls directly within the limitations of the “going-and-coming” rule. In Voehl v. Indemnity Insurance Company of North America, 288 U.S. 162, 53 S.Ct. 380, 77 L.Ed. 676 (1933), we find the rule stated generally as follows:

“ * * * The general rule is that injuries sustained by employees when going to or returning from their regular place of work are not deemed to arise out of and in the course of their employment. Ordinarily the hazards they encounter in such journeys are not incident to the employer’s business. But this general rule is subject to exceptions which depend upon the nature and circumstances of the particular employment. ‘No exact formula can be laid down which will automatically solve every case.’ * * * While service on regular hours at a stated place generally begins at that place, there is always room for agreement by which the service may be taken to begin earlier or elsewhere. Service in extra hours or on special errands has an element of distinction which the employer may recognize by agreeing that such service shall commence when the employee leaves his home on the duty assigned to him and shall continue until his return. And agreement to that effect may be either express or be shown by the course of business. In such case the hazards of the journey may properly be regarded as hazards of the service and hence within the purview of the Compensation Act.”

The rationale of the rule is more succinctly set out in Spurgeon v. Blue Diamond Coal Company, Ky., 469 S.W.2d 550 (1971), where we said:

“ * * * The usual basis for the rule is that the employee is not performing any service for the employer merely by going to and from a fixed work site.”

Although Harris was on his way to work, he had, at the time of his injury, deviated from his regular personal route between home and the job site solely at the request of his foreman and was engaged in an undertaking for the purpose of furthering the business venture of his employer.

The general test is stated by Judge Cardozo in Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929), in the following language:

“ * * * The test in brief is this: If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. * * * If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then personal, and personal the risk.”

Actually, the trip by Harris and the other members of the crew to Mt. Sterling was, in effect, a deviation from a usual route of travel but with the reverse effect of a personal trip becoming a business trip by reason of the deviation.

Larson’s Workmen’s Compensation Law, Volume 1, Section 19, states:

“An identifiable deviation from a business trip for personal reasons takes the employee out of the course of his employment until he returns to the route of the business trip, unless the deviation is so small as to be disregarded as insubstantial. In some jurisdictions, the course of an employment is deemed resumed if, having completed his personal errand but without having regained the main business route, the employee at the time of the accident was proceeding in the direction of his business destination. If the main trip is personal, a business detour retains its business character throughout the detour.” (Emphasis ours.)

This latter theory is further enlarged upon in Section 19.36, wherein it is said:

“If the main trip is a personal trip, the business character of a business detour persists throughout the detour. Judge Cardozo’s hypothetical example of the employee who, while on a holiday trip, actually goes to see a debtor and is injured while on the business errand, would make this obvious pattern for compensa-bility: * * (Plat example omitted.)

Considering Judge Cardozo’s test and relating it to the sections of Larson above cited, we must of necessity conclude that the trip of Dallas Ray Harris and the others, after they left the Mountain Parkway, was a work-related journey performed solely for the purpose and benefit of the employer. While it might be true that the work had no part in creating the necessity for travel in general, it is obvious that the journey would not have gone forward from the intersection of the Mountain Parkway and Highway 11 toward Mt. Sterling had the business errand been dropped.

In Spurgeon v. Blue Diamond Coal Company, Ky., 469 S.W.2d 550 (1971), a coal company employee was injured while attending a meeting of a mining institute at the suggestion, rather than the request, of his employer. The Workmen’s Compensation Board dismissed the employee’s claim because it was not work related. Upon appeal the proceeding was remanded to the board for the purpose of determining whether the trip to the mining institute meeting was in any way beneficial to the employer. Here we are not faced with that problem, for there is no doubt concerning the objective of Harris and the others when they detoured from their usual route along the Mountain Parkway and proceeded toward Mt. Sterling.

The Workmen’s Compensation Board relied upon this court’s opinion in Lycoming Shoe Company v. Woods, Ky., 472 S.W.2d 257 (1971). Woods was an employee of Lycoming Shoe Company at West Liberty, Kentucky, but resided in Portsmouth, Ohio. It was his habit to return home on the weekends, riding with a Lewis Reinhardt who used his automobile for the weekend trips. Reinhardt occasionally picked up merchandise or materials in Portsmouth and delivered them to Lycoming at West Liberty. While Reinhardt and Woods were returning from Portsmouth to West Liberty, they were involved in an accident in which both were killed. The claim on behalf of Woods was denied because his fatal injury was not work related. This ruling is distinguishable from the Harris case now before us because in that instance Woods was injured fatally while on his regular, personal route between his home and West Liberty. Applying the Cardozo test, it becomes immediately apparent that the Woods case fails in all aspects to comply with any facet of the requirements which might have converted his trip into a business venture or his fatal injury into one that was compensable. Woods’ trip would have been made in any event, and the fact that merchandise and supplies were being transported was inconsequential.

The judgment is affirmed insofar as it holds that Dallas Ray Harris’ injury was work related and compensable, and the case is remanded to the Workmen’s Compensation Board for a determination of the degree of disability of Harris and for an award in keeping with such determination.

All concur.


author: GARDNER, Commissioner.

text:
    COMMONWEALTH of Kentucky, Appellant, v. JAMES MUNICIPAL EQUIPMENT, INC., a corporation, and Daniel James, Appellees. and COMMONWEALTH of Kentucky, Appellant, v. BATTERY DISTRIBUTING CO., a corporation, and Robert L. Fisher, Sr., Appellees.
    Court of Appeals of Kentucky.
    Oct. 17, 1975.
    Rehearing Denied Feb. 6, 1976.
    Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Atty. Gen., Frankfort, for appellant.
    Adrian F. O’Bryan, Clements, O’Bryan & McDaniel, Louisville, for appellees, James Municipal Equipment, Inc., and others.
    John Tim McCall, Louisville, for appel-lees, Battery Distributing Co., and others.
   GARDNER, Commissioner.

Appellees were indicted for violating KRS 123.020, a statute concerned with contributions to political organizations by corporations. The circuit court dismissed the indictments after concluding that the prosecution was barred by the one-year statute of limitations. This court is asked to certify the law on the single question of whether the prosecution was barred by the one-year limitation statute (KRS 431.090) or whether the two-year limitation statute (KRS 124.340) applied.

KRS 431.090, appearing under Title XL, entitled “CRIMES AND PUNISHMENT,” refers to misdemeanors generally and provides:

“ * * * Prosecutions by the commonwealth for a misdemeanor or to recover a penalty for a violation of any penal statute or law, and actions at the instance of any person to recover any such penalty, shall be commenced within one (1) year after the misdemeanor was committed or the right to the penalty accrued, unless a different time is allowed by the law prescribing the misdemeanor or imposing the penalty. * (Emphasis added)

KRS 124.340, appearing under Title X, entitled “ELECTIONS,” provides:

“No prosecution shall be had under the election laws where the penalty is less than confinement in the penitentiary unless the prosecution is commenced within two (2) years from the time of the commission of the offense.”

It is noted that by its own terms KRS 431.090 concedes that its time limitation gives way to other limitation statutes. Unquestionably KRS 124.340 is included in the “unless” clause of KRS 431.090 and is the statute governing the instant case. It was error, therefore, to dismiss the indictments on the ground that the prosecution was barred by limitation.

The law is so certified.

All concur.


author: CULLEN, Commissioner.

text:
    Robert Lee BLANTON, Appellant, v. WORKMEN’S COMPENSATION BOARD et al., Appellees.
    No. 75-326.
    Court of Appeals of Kentucky.
    Oct. 31, 1975.
    Rehearing Denied Feb. 6, 1976.
    Cole, Cole & Anderson, Barbourville, for appellant.
    Bennett Clark, Stoll, Keenon & Park, Lexington, Earl M. Cornett, Gen. Counsel, Dept, of Labor, Joe A. Newberg, Asst. Counsel, Dept, of Labor, Frankfort, for ap-pellees.
   CULLEN, Commissioner.

The Workmen’s Compensation Board awarded Robert Lee Blanton workmen’s compensation for total permanent disability attributable to pneumoconiosis, seventy-five percent of the award to be paid by the Special Fund and the balance by Blanton’s most recent employer, National Electric Coil Division of McGraw Edison Company. The claim had been defended on the grounds that (1) in the written application for employment which Blanton submitted when he was hired by National Electric Coil, he failed truthfully to state the facts with respect to his previous employment and the previous state of his health, whereby he was barred by KRS 342.316(9) from receiving compensation; (2) Blanton did not have the required exposure to the hazards of pneumoconiosis; and (3) he was not in fact disabled in any degree. Although the first defense noted above was specially pleaded and was briefed, the board ignored it. The board found for the claimant on the other two defenses.

On appeal by the Special Fund and by National Electric Coil to the circuit court, they maintained that the findings of the board as to exposure and disability were not supported by the evidence, and that Blan-ton’s claim in any event should be barred by reason of the alleged untruthfulness of the employment application. The circuit court found that the alleged untruthfulness of the employment application was not such as to constitute a bar to the claim under KRS 342.316(9). The court did hold, however, that the evidence did not support the board’s findings as to exposure and disability; wherefore, judgment was entered setting aside the award and directing that the claim be dismissed.

On this appeal by Blanton from that judgment, he contends that the circuit court was in error in finding lack of evidentiary support for the findings as to exposure and disability. The Special Fund and National Electric Coil maintain that the judgment is not in error in that respect, and that in any event Blanton’s claim should be held to be barred by the untruthfulness in the employment application. We agree with the latter contention.

Blanton admitted that the employment application was untruthful in regard to his previous employment, in that it stated that during a designated five-year period he had been employed as a carpenter in Louisville when in fact he had been employed as an underground coal miner in Harlan. Also, the application failed to disclose the facts that Blanton had quit work as a coal miner because of severe breathing difficulty, he had been diagnosed as having a significant defect of the back, and he was undergoing treatment for a severe eye disease. Blanton’s only explanation for the misstatements and omissions was that the employment application was prepared by his son and he did not read it. We do not consider this to be a basis for absolving Blanton of the consequences of KRS 342.-316(9). That statute says:

“No compensation shall be payable for occupational disease if the employee at the time of entering the employment of the employer by whom compensation would otherwise be payable, falsely represented himself, in writing, as not having been previously disabled, laid off, or compensated in damages or otherwise, because of such disease, or failed or omitted truthfully to state to the best of his knowledge, in answer to written inquiry made by the employer, the place, duration and nature of previous employment, or, to the best of his knowledge, the previous state of his health.”

It is the opinion of this court that Blan-ton’s claim should have been held to be barred by reason of the untruthful application. The situation is that the circuit court correctly directed that the award to Blan-ton be set aside and his claim dismissed, but on the wrong grounds. There is no error in the judgment as concerns its dispositive provisions.

The judgment is affirmed.

All concur.


text:
    William R. VAUGHAN, Appellant, v. Ida Mary HOLDERER, Appellee.
    Court of Appeals of Kentucky.
    Nov. 26, 1975.
    Rehearing Denied Feb. 6,1976.
    I. G. Spencer, Louisville, for appellant.
    Edward T. Ewen, Jr., Marvin E. Jewell, Louisville, for appellee.
   VANCE, Commissioner.

This is an appeal from a summary judgment which set aside as champertous a deed to appellant, William Vaughan, and enjoined him from interfering with the use and occupancy of the premises by appellee, Ida Mary Holderer.

Affidavits and depositions filed in connection with the motion for summary judgment reveal that the appellant is the owner of lots numbers five and six fronting on Warwick Avenue in the City of Louisville. He acquired these lots by deed in 1968 or 1969 at a time when there was no fence between lots numbers six and seven. The appellee is the owner of lots numbers eight, nine and ten on Warwick Avenue. She acquired her lots by deed from her father, Charles Ochsner, in 1945. She lives with her husband and her father in a residence constructed upon lots eight, nine and ten.

This controversy centers upon lot number seven, a vacant lot, which lies between the property owned by the appellant and that owned by appellee. Lot number seven was owned by Owen McCann. It passed by descent to his son, Fred McCann, who conveyed it to the appellant.

For many years Mr. Charles Ochsner cut the grass and cared for lot number seven in the same manner as he had cared for the lawn of his residence on lots eight, nine and ten. At one time he tended a garden on lots five and six before they were owned by the appellant and he constructed a fence on the line between lots six and seven to keep livestock out of the garden on lot number six. The record does not show that lot number seven was ever entirely enclosed by a fence or that Mr. Ochsner claimed to own it. He paid taxes on the property for a number of years but stated that he was given permission to use the property by some of the relatives of the owner, Owen McCann.

After Mr. Ochsner conveyed lots eight, nine and ten to his daughter in 1945, she continued to maintain lot number seven by cutting the grass, etc., but the record does not show that she ever claimed ownership of the property until 1971.

In 1971 appellant commenced to make use of a portion of lot number seven to park his truck and to store materials he used in his business. The appellee told him that he should not use the lot for business purposes and constructed a fence between lot number six and lot number seven.

Appellant discovered that Mrs. Holderer did not hold title to lot number seven. He then purchased the lot from the heirs of Owen McCann and proceeded to move the fence constructed by Mrs. Holderer.

Mrs. Holderer instituted this action in which she claimed title to lot number seven by adverse possession. She demanded that title be quieted in her and that appellant’s deed be declared void for champerty.

Upon appellee’s motion a summary judgment was entered which held appellant’s deed void for champerty and enjoined appellant from interfering with appellee’s use and occupancy of lot number seven.

KRS 372.070(1) provides:

“(1) Any sale or conveyance, including those made under execution, of any land, or„the pretended right or title thereto, of which any other person has adverse possession at the time of the sale or conveyance, is void; but this section does not render void any devise of land in adverse possession.”

■ [1,2] It follows that appellant’s deed is champertous if, at the time he purchased lot number seven, the appellee claimed ownership of the lot and held it by adverse possession. It is not necessary that her adverse possession have matured into title but only that the adverse character of her possession be such that it would ripen into a fee simple title if held uninterruptedly for the prescribed period of time. Wells v. Wells, Ky., 346 S.W.2d 33 (1961). To ripen into title the adverse possession must be accompanied by a claim of ownership of the property. Chesapeake & O. Ry. Co. v. Rosskamp, 179 Ky. 175, 200 S.W. 496 (1918).

The evidence makes it clear that appellant, at the time he purchased lot number seven, knew the appellee claimed to own it. His knowledge of her claim however, would not render his deed champer-tous unless in addition to her claim of ownership she also held the lot by adverse possession of a character which would eventually ripen into title.

The answer to the complaint raises an issue as to whether appellee possessed the property adversely and it seems to the court that the depositions and affidavits of record do not warrant a holding that there is no genuine issue as to any material fact or that appellee is entitled to judgment as a matter of law.

The evidence of record does not show that appellee has ever occupied and possessed lot number seven in an open and hostile manner against the claim of all other persons. Lot number seven joined her property with no visible boundary marking. The fact that her father paid taxes on the property and that she cut the grass over a number of years does not constitute adverse possession that will ripen into title. Kentucky Women’s Christian Temperance Union v. Thomas, Ky., 412 S.W.2d 869 (1967). The fence which was erected between lots numbers six and seven did not enclose the property and the record title holder was never cut off from access to or use of his property by act of the appellee.

We do not pass upon appellant’s contention that KRS 372.070 is applicable only as a defense because nothing in the record indicates that argument was brought to the attention of the trial judge.

The judgment is reversed for further proceedings upon the merits.

All concur except STERNBERG, J., not sitting.


text:
    William T. WARFORD, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.
    William P. Hurley, Jr., Louisville, for appellant.
    Henry V. B. Denzer, Hogan, Taylor, Den-zer & Bennett, Louisville, for appellee.
   VANCE, Commissioner.

This is an appeal from a summary judgment which dismissed appellant’s claim.

On August 21, 1971, appellant purchased a 1971 Chevrolet truck. He traded in a 1960 GMC panel truck and a 1963 Chevrolet step van. At the time of the trade he also owned a 1970 passenger automobile. Both the passenger automobile and the 1960 GMC panel truck were insured with State Farm Mutual Insurance Company but the 1963 van was not insured. The policy of insurance on the passenger automobile contained collision coverage.

On August 23,1971, before appellant had obtained any insurance upon the new truck, he was involved in a collision which totally destroyed the new truck. The question in issue is whether the policy of insurance on the passenger automobile can be applied to the new truck under the provisions of the policy relating to “newly acquired automobiles.” That provision is as follows:

“NEWLY ACQUIRED AUTOMOBILE— means an automobile, ownership of which is acquired by the named insured or his spouse, if a resident of the same household, if
(1) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and
(2) provided that no insurance shall be applicable to such newly acquired automobile unless as a condition precedent the named insured within 30 days following such delivery date applies to the company for insurance on such newly acquired automobile.
“If more than one policy issued by the company could be applied to such automobile the named insurer shall elect which policy shall apply. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.”
The policy defines automobile as follows:
“Automobile — means a four wheel land motor vehicle designed for use principally upon public roads, but ‘automobile’ shall not include a midget automobile, nor any vehicle while located for use as a residence or premises."

It is appellant’s contention that when he purchased the new truck State Farm Automobile Insurance Company insured all of the automobiles owned by him and that he, within thirty days of purchase, applied for insurance on the newly acquired truck, albeit at that time the new truck was totally demolished.

State Farm concedes appellant’s right to coverage if it. did insure all automobiles owned by appellant when he purchased the new truck but State Farm relies upon the fact that it did not insure the 1963 Chevrolet step van. Appellant contends the 1963 Chevrolet step van was not an automobile as that term was defined in the policy since it came within the exclusion of any vehicle while located for use as a residence or premises.

The facts which give rise to this contention are that the inspection sticker on the 1963 Chevrolet step van expired in May 1971 and it could not be economically repaired so as to pass inspection. Appellant parked the van on the north side of his house and commenced using it as a storage shed for plumbing tools and equipment he used in his business and also for storage of some household goods. The wheels of the van were jacked up and the van placed upon concrete blocks and thereafter it was used for storage purposes only.

The policy defines automobile as a four-wheel land motor vehicle designed for use principally upon public roads and without doubt the 1963 Chevrolet step van comes within that definition but the policy goes on to exclude from classification as an automobile any vehicle while located for use as a residence or premises.

State Farm maintains that the exclusion obviously refers to vehicles not designed “for use principally upon public roads” such as trailers which must be pulled and mobile homes which do not operate by motors but which are frequently used as residences.

We think the exclusion is more ambiguous than obvious. If its only purpose were to exclude trailers and mobile homes not operated by motor the phrase is pure surplusage because those vehicles would not qualify as automobiles under the first part of the definition. More likely the exclusion was intended to exclude coverage of a vehicle that would otherwise qualify under the' definition of an automobile except for the fact that it was located for use as a residence or premises. In any event the exclusion is subject to different interpretations and should therefore be construed most strongly against the insurer.

We think the policy is subject to the interpretation that a four-wheel land motor vehicle designed for use principally upon public roads ceases to be an automobile if the owner locates it for use in such a manner that it becomes a part of his premises.

The policy does not define the word “premises” but there is no question the van was located for use as a storage shed. Under any ordinary usage of the word a storage shed would constitute a part of the premises.

We conclude that State Farm insured all of the automobiles owned by appellant when he purchased the new truck. The new truck thus became a “newly acquired automobile”.

The judgment is reversed with directions that a new judgment be entered for appellant on the issue of liability and the issue of damages shall be submitted to a jury.

All concur.


text:
    CLAY COUNTY, Kentucky, and Fiscal Court of Clay County, Kentucky, et al., Appellants, v. LESLIE COUNTY, Kentucky, and Fiscal Court of Leslie County, Kentucky, et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 12, 1975.

      John D. White, Manchester, for appellants.
    Robert C. Muncy, Hyden, William S. Riley, Asst. Atty. Gen., Thomas A. Duke, Dept, of Revenue, Frankfort, for appellees.
   CULLEN, Commissioner.

By KRS 143.020, enacted in 1972, Kentucky levies a “severance tax,” relating to coal, “on every taxpayer measured by the coal severed.” The tax is at the rate of four percent of the gross value of the coal severed but not less than thirty cents per ton. By KRS 143.010, “severance” is defined to mean “the physical removal of coal from the earth,” and “taxpayer” is defined to mean any person “engaged in severing coal.”

Provision is made in KRS 42.300, enacted in 1974, for allocation of a portion of the total state-wide severance-tax collections among the “coal producing counties,” on the basis of the “ratio of the severance tax collected in a county to the total amount of severance tax collected statewide.” (The amount to be allocated for the fiscal years 1974r-75 and 1975-76 was determined by Chapter 262 of the Acts of 1974).

A substantial amount of coal is taken, by underground mining, from coal seams located in Leslie County, but the mouths of the mines, through which the coal is brought to the surface of the ground, are located in Clay County. The weighing, washing, crushing, other processing, and shipping take place in Clay County.

A dispute arose between Leslie County and Clay County as to allocation of the severance tax, Leslie County maintaining that the coal taken from seams in Leslie County was severed in that county and therefore was collected in that county, while Clay County maintained that the severance did not take place until the coal came from the mine mouths in Clay County, wherefore the tax was collected in Clay County. To settle the dispute, the appropriate state officials brought the instant suit for a declaratory judgment. The circuit court was of the opinion that the severance took place in Leslie County and entered judgment accordingly. Clay County appeals from that judgment.

Clay County’s argument is that “physical removal of the coal from the earth” (the statutory definition of “severance”) means the bringing of the coal to the surface of the earth; that this is the only practicable meaning since the tax is calculated by weight and weighing is not done until the coal is brought out of the mine; and that since maintenance of roads and bridges is one of the major purposes for which a part of the severance tax is allocated to the counties, the legislature reasonably would have intended that the allocation be to the counties over whose roads and bridges the coal is transported, which normally are the counties in which are located the mouths of the mines.

Leslie County’s argument is that “physical removal of the coal from the earth” means the parting of the coal from the earth in which it has been imbedded, so that it becomes personalty (which takes place inside the mine); that KRS 42.300 provides in terms for allocation of the tax among the “coal producing counties,” which plainly means the counties where the seams of coal are located; and that the legislative intent in the allocation of the tax was to compensate the latter counties for the depletion of their natural resources.

The circuit court was persuaded of the validity of Leslie County’s argument, and so is this court.

The judgment is affirmed.

All concur.


author: CLEMENS, Presiding Judge.

text:
    Jean CAVERS et al., Respondents, v. ST. LOUIS UNION TRUST COMPANY et al., Appellants.
    Nos. 36471-36473, 36482 and 36483.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 16, 1975.
    Motion for Rehearing and/or Transfer to Supreme Court Denied.
    Application to Transfer Denied Jan. 12, 1976.

      F. Wm. McCalpin, Michael D. Mulligan, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, for appellants Robert Ashbaugh and others.
    Wayne B. Wright, Henry C. Bryan, Jr., McDonald, Wright & Bryan, St. Louis, for appellants Anthony J. Webber and others.
    F. X. Cleary, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for appellants Karen L. Michie and others. Raymond Lee Zager, Sherman Oaks, Cal., Norman C. Parker, Mary Ann Weems, for Norman Webber and Lucy Janet Webber Ryan Brown; Flynn & Parker, St. Louis, of counsel.
    Harold C. Hanke, Robert H. Batts, Smith, Hanke & Batts, St. Louis, for respondent Frederick Ashbaugh.
    William H. Biggs, F. Fairfax Jones, Biggs, Curtis, Casserly & Barnes, St. Louis, for respondents trustees for Florence Murial Nairn and others.
    Jon M. Anderson, Wright, Harlor, Morris & Arnold, Columbus, Ohio, for respondent Jean Cavers.
   CLEMENS, Presiding Judge.

In 1915 Mrs. Eliza Northrup McMillan died testate in St. Louis survived by one son, William McMillan. By her will Mrs. McMillan made substantial devises and bequests to him and his wife and numerous $5,000 bequests to friends. Insofar as we are now concerned, Mrs. McMillan left the residue of her estate, then valued at over two million dollars, in trust for two groups of people. This 60-year-old trust now is valued at over seventeen million dollars and arguably has terminated; hence the present litigation.

By this suit plaintiffs, who are some of the residuary trust beneficiaries, seek a declaratory judgment to construe Mrs. McMillan’s will to determine whether the testamentary trust has terminated and, if terminated, to whom the trust corpus should be paid.

The core issue: Plaintiffs contend that when a bequest in trust grants a life annuity to a beneficiary, with the corpus payable on his death to named remaindermen, and the life annuitant relinquishes his annuity, the trust thereby terminates and the corpus becomes immediately payable to the re-maindermen. The trial court ruled the trust had terminated and awarded fractional shares of the corpus to five persons, living descendants of eight original remain-dermen. Appeals were taken by the corporate trustee and persons who contend the trust has not terminated or who claim they now have, or may later become entitled to, shares in the trust corpus.

The will. By Eliza McMillan’s will, admitted to probate in 1916, she bequeathed the residue of her estate in trust. By Item Fifth the testatrix named a trustee and 43 life annuitants, including Paul Cadwell, to receive for life monthly payments ranging from $25 to $250. All the life annuitants are now dead except Paul Cadwell, now over 85 years old, and he has relinquished his annuity. Additionally, the testatrix named eight persons, or their descendants to receive the trust corpus upon death of the life annuitants (or upon other legal termination of the trust?). Each of the eight original remaindermen has died, two without descendants. Living descendants of the other remaindermen contend the trust has terminated, and they accept the proportionate shares of the corpus as ordered distributed by the trial court. Immediate descendants of those distributees (sub-stitutional remaindermen) who might take upon termination if it occurred upon the death of Paul Cadwell, oppose present termination.

Trust decreed terminated. The threshold issue is whether the testamentary trust has terminated. Paul Cadwell, the sole surviv- or of the 43 life annuitants under the trust, has “released and disclaimed” his annuity interest. Did that as a matter of law accelerate the remainder interests of the remain-dermen into present interests? The trial court ruled affirmatively on the termination issue, and ordered the corpus distributed as follows: Jean Cavers, ⅜½»; Elizabeth M. Morrison, ⅞½»; Florence J. McLeod, %4ths; Trustees of Florence Murial Nairn, %4ths; Frederick K. Ashbaugh, ¾⅛. Those parties accept this as the proper division of the corpus.

The relationship and status of the original and successor remaindermen is shown on the following chart:

Names of the eight original remainder-men are marked by broken underlining. Each has died. Names of their living descendants are shown in capital letters, followed in parentheses by the fractional shares of the trust corpus awarded each by the trial court.

Interested persons fall into four groups: (a) The “Jenny Cavers group” is unrelated to the testatrix, (b) In the “Kingston group,” Mrs. Mary E. Kingston has died leaving Dr. John Kingston as her widower; he died leaving three children, including William Kingston and Nora Kingston Lawrence, who died without descendants. Their sister, Grace Kingston Ashbaugh, died leaving defendant-respondent Frederick Ashbaugh as her only descendant. He has two living children and five living grandchildren, four of them minors, (c) In the “Northrup group,” Charles Northrup died leaving two daughters. Daughter Florence Northrup McLeod died leaving two living daughters, Florence J. McLeod and Elizabeth M. Morrison. Charles Northrup’s other daughter, Eula N. Mabee, died leaving one living daughter, Florence M. Nairn; she has one living daughter and four living grandchildren, three of them minors, (d) In the “William McMillan group” are his legatees and their descendants, none of whom is named by testatrix in her will, directly or indirectly. Norman Webber and Lucy J.W.R. Brown claim that as intestate heirs of the testatrix they are now entitled to the lapsed shares of two original remaindermen, William Kingston and Nora L. K. Lawrence, who died without descendants. Others of the “William McMillan group” are Norman’s and Lucy’s children, who contend the trust has not yet terminated.

Termination by annuitant’s relinquishment. As said, we must initially determine whether the trial court correctly held Paul Cadwell’s relinquishment of his annuity, he being the only living annuitant, terminated the trust. In 1972 Paul Cadwell executed two documents whereby he “forever renounce[d], disclaimed] and release[d]” his annuity and further assigned to Jean Cavers (a descendant of an original remainderman, Jenny Cavers) all his interest in his $50-a-month annuity. Three months later Jean Cavers surrendered and released to the trustee all her interest in the Cadwell annuity. The trustee’s obligation to the annuitants thereby came to an end. We hold this cessation of any purpose for the trust made it “dry” and terminated it. Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 135[16] (1932). This, despite its wording that “after the deaths of . Paul Cadwell [and other named life annuitants] this trust shall cease and the property . . . shall be distributed

Acceleration of remainder. The general rule on acceleration of remainder interests is found in Commerce Trust Co. v. Fast, 396 S.W.2d 683, 1. c. 688 (Mo.1965). There the will created a trust with income to be paid to daughter Mary and “upon her death” the corpus was to go to testator’s other three children. Mary then renounced her life interest in the trust. In construing the will the trial court held Mary’s renunciation accelerated the trust remainders into present interests in the testator’s other three children, to whom the court ordered the trust corpus distributed. On appeal our supreme court affirmed, saying “the rules applicable to the solution of problems growing out of renunciation are clearly set out in the Restatement, Property. Section 231 declares: ‘When an attempted prior interest fails because the person to whom it is limited renounces it, succeeding interests are accelerated except when (a) the terms and circumstances of the limitation manifest a contrary intent . . . .’ . . . This [acceleration] occurs in accordance with what is normally to be inferred as the intent of the conveyor, namely, that as each of the successive interests sought to be created by him ends or becomes impossible, the next in order in the limitation should move up.” Concerning the testator’s use of the words “upon her [Mary’s] death” the court added:

“A construction that the ‘terms and circumstances of the limitation manifest a contrary intent’ is not justified solely by the fact that after limiting a life interest (the renounced interest) it is provided that the gift over shall take effect ‘at the death of’ the life tenant . . . . Such language is to be construed as referring to the ending of such life interest either in the manner stated or by its renunciation.”

Fast supports Illustration 9, 2 Restatement of Trusts, Second, § 337, p. 161: “A bequeaths property to B in trust to pay the income to C for life and on C’s death to pay the principal to D. C disclaims his interest. D, whose interest is accelerated by the disclaimer, can compel B to convey the trust to him.”

The trial court’s finding of termination is further supported by Bennett v. Tower Grove Bank and Trust Company, 434 S.W.2d 560 (Mo.1968). In that suit three trust remaindermen sued to terminate a trust. Under that trust the testator’s daughter was entitled to income from the trust for life, with remainder to the three named plaintiffs. The daughter assigned her interest to the three plaintiffs, who then sued to compel termination. In reversing the trial court’s refusal to terminate the trust, the supreme court first found the testator had not affirmatively expressed an intention to preserve the trust corpus for the daughter’s life. Following 2 Restatement of Trusts, Second, § 337, the court then held that where a sole beneficiary had conveyed her interest therein to the remaindermen, the remaindermen could compel termination. (Since the sole annuitant had completely assigned her annuity the trust had become “dry,” and the re-maindermen were entitled to distribution.)

Seeking to avoid termination, guardians for minor and unknown defendants in the “Kingston group,” the “Northrup group” and the “William McMillan group” diligently advance numerous arguments against termination before the death of living life annuitant Paul Cadwell. In discussing these contentions we will refer to the three groups collectively as “defendants.”

Annuitant’s right to relinquish. The “Kingston group” seeks to nullify Paul Cad-well’s relinquishment of his annuity on the ground he could not do so after accepting its benefits for almost 50 years. We see no reason he could not do so. His release was comparable to a life tenant conveying his life estate to the remaindermen.

To support their contention of Paul Cadwell’s inability to relinquish defendants cite Sanders v. Jones, 347 Mo. 255, 147 S.W.2d 424 (1940), which is readily distinguishable. That case concerned a “renunciation” by a remainderman, not by a life tenant as Paul Cadwell is in our case. There, remainder-man Ely Sanders, in order to thwart his creditors attempted to renounce 15 months after the life tenant’s death had ripened Ely’s estate into a fee title. Sanders is irrelevant here.

Conversely, in Bennett v. Tower Grove Bank and Trust Company, 434 S.W.2d 560, 1. c. 564 (Mo.1968) the court upheld a life-tenant’s right to transfer her interest to the remainderman, saying: “ . . . Likewise, the daughter’s share was given without restraint upon her right to dispose of it. Therefore, she had the right to transfer her interest as she saw fit (1 Rest, of Trusts, 2d, § 132, p. 288) and thereby change the application prescribed by the testator. Since the testator did not see fit to employ any of the numerous devices which would have limited the daughter’s power to transfer her interest (See 1 Rest. of Trusts, 2d, § 152, p. 311, § 154, p. 320, § 155, p. 323), we do not feel compelled to read into the language which he employed an intention that the trust should continue in the circumstances here. Absent other circumstances to show the intention of the testator, we are of the opinion that the mere creation of the trust for successive beneficiaries did not indicate a purpose other than preservation of the corpus for the remaindermen and, therefore, the trust may be terminated by the action here taken. See IV Scott on Trusts, 3rd ed., § 337.1, p. 2664.” So it is here.

Estoppel by Kingston. Defendants argue plaintiffs are estopped from contending for termination by the ruling in Kingston v. St. Louis Trust Co., 348 Mo. 448, 154 S.W.2d 39 (1941). That suit was for construction of the same will now before us. By 1941 some of the life annuitants had died. The plaintiffs did not seek to terminate the trust but instead sought to compel the trustee to pay them partial distribution to the extent of the expired annuities, this on the ground plaintiffs had vested remainders in that portion of the trust. The declared issue was simply whether plaintiffs’ remainders were vested or contingent. The court held plaintiffs’ interests were contingent on surviving the numerous annuitants. Present defendants rely on language in Kingston to the effect that the McMillan trust was not to terminate until the death of all the life annuitants. We do not find this persuasive. The Kingston court was not faced with the issue here — termination for a reason other than actual death, namely, relinquishment by a sole life annuitant.

Intent against termination. In considering the principle of release by a life annuitant effecting acceleration of the remainder the defendants emphasize — and plaintiffs concede — that rule does not apply when the testator has manifested a contrary intent, by a spendthrift trust, for example. Defendants contend the testatrix did manifest a contrary intent by providing that distribution to the remaindermen became due “after the deaths” of all remaindermen. That contention runs afoul the holding in Chew v. Keller, 100 Mo. 362, 13 S.W. 395, 1. c. 396 (1890), that “adverbs of time, as ‘when,’ ‘there,’ ‘after,’ ‘from,’ and like expressions, do not make a contingency, but merely denote the commencement of the enjoyment of the estate.” Applying this principle in Fast, supra, 396 S.W.2d 1. c. 689, the court held such language refers “to the ending of such life interest either in the manner stated [death] or by its renunciation.”

In further contending Mrs. McMillan’s will did show an intent contrary to termination before Paul Cadwell’s death the defendants first rely on Crossan v. Crossan, 303 Mo. 572, 262 S.W. 701 (1924). There the trust remainder was expressly conditioned on the remaindermen giving the annuitant, their mother, tender care during her declining years. The mother renounced but the court ruled against acceleration because the imposed condition did manifest an intent contrary to the termination by the annuitant’s relinquishment. Defendants also cite Tate v. Schoonover, 462 S.W.2d 792 (Mo.1971), and St. Louis Union Trust Company v. Kern, 346 Mo. 643, 142 S.W.2d 493 (1940). In all these eases the testators’ provisions for the life tenants showed a specific concern for them. Here, the $50-a-month payment to Paul Cadwell hardly rises to such level of concern that we can say it manifested an affirmative intent by testatrix against acceleration by relinquishment.

We hold the testatrix’s intent was to hold the corpus of the trust for the purpose of paying the many token annuities; that her direction to distribute the corpus to the remaindermen after the annuitants’ deaths did not necessarily mean their literal deaths so as to impose a condition, but referred instead merely to the termination, by death or otherwise, of the preceding estates. (Commerce Trust Co. v. Fast, supra, at 396 S.W.2d, 1. c. 688, 689). There being no manifest contrary intent by the testatrix, we find termination occurred when Paul Cadwell, the sole surviving annuitant, relinquished his annuity. Fast and Bennett, supra. The rights of the remain-dermen to distribution then became enforceable.

Substitutional remaindermen. Members of the “Northrup group,” descendants of distributee Florence M. Nairn, contend trust termination at this time would be detrimental to them, since distribution to her, as a primary recipient, deprives them of the possibility of being substitutional re-maindermen if Florence Nairn dies before •Paul Cadwell. In short, they contend the existence of substitutional remaindermen prevents termination. They cite Kingston, supra, at 154 S.W.2d 1. c. 42. As mentioned hereinbefore, Kingston dealt with the hypothetical rights that would accrue upon trust termination by the literal death of the life annuitants; here we are concerned with termination arising from acceleration by cessation of the sole life annuitant’s interest. Thus, present contentions of the “Northrup group” are not established by the ruling in Kingston ; in fact, the contention of these substitutional remaindermen is refuted by Commerce Trust Company v. Fast, 396 S.W.2d 683[5] (Mo.1965). There, the will provided that if any remaindermen had died at the time of termination, then, as here, that share was to be paid to his descendants. The court ruled against the substitutional remaindermen, saying tersely: “The substitutional provisions in favor of more remote descendants are not alone sufficient to prevent acceleration. . . ”

Here, as in Fast, the primary objects of the testatrix’ bounty were the original re-maindermen or their immediate descendants. Provisions for more remote descendants were substitutional, not conditions precedent for termination of the trust. This contention of the “Northrup group” must be denied, and we adhere to our ruling that the trust has terminated in favor of the present living remaindermen.

The two lapsed legacies. The “William McMillan group” presents different issues. Defendants Norman Webber and Lucy J. W. R. Brown contend that since two of the eight original remaindermen, William Kingston and Norah K. Lawrence, died without descendants, their two proportionate shares of the trust lapsed, and as to those two shares their great-grandmother, testatrix Eliza McMillan, died intestate. Norman and Lucy contend for termination now but against the distribution ordered which excluded them.

Other members of the “William McMillan group,” Norman’s and Lucy’s living descendants, agree Norman and Lucy are entitled to take as heirs of Eliza McMillan, but only if alive when the trust terminates upon Paul Cadwell’s death. They oppose termination. We have ruled the trust was terminated by Paul Cadwell’s relinquishment. That disposes of the claim of these remote descendants of Eliza McMillan, but still leaves the issue of Norman’s and Lucy’s claims as intestate heirs of Eliza McMillan.

The key to this issue is the nature of Eliza McMillan’s bequest in trust to the original eight remaindermen. If it was a gift to them collectively as a group, the shares of William Kingston and Norah K. Lawrence passed upon their deaths to the five surviving members of that group, as decreed by the trial court. Conversely, if the bequest in trust was a gift to each remainderman as an individual, then argue Norman and Lucy, the testatrix died intestate as to the shares of William Kingston and Norah K. Lawrence and those two shares passed upon their deaths to Norman and Lucy as Eliza McMillan’s intestate heirs. The “William McMillan group” claims they are successors to Eliza McMillan’s sole heir at law, her son William McMillan.

Reverting to the testatrix’ will, note that it provided that upon death of the 43 annuitants (or upon termination by acceleration, as we have ruled) the trust corpus was to be “distributed equally, share and share alike, among and paid to the said [eight named remaindermen] and their respective descendants . . . per stirpes and not per capita . . . .”

As said, two of the eight original remain-dermen, William Kingston and Norah K. Lawrence, died without descendants. So, those two shares of the trust lapsed, either in favor of other members of the group collectively, as plaintiffs contend and the trial court held, or in favor of Eliza McMillan’s intestate heirs, as all the “William McMillan group” now contend.

We explore Eliza McMillan’s will to determine her intent as to her bequest to the group of eight original remaindermen and as to who is to take the two shares that lapsed — other members of the group of eight residuary remaindermen or Eliza’s intestate heirs.

By statute and common law the testatrix’ intent controls in interpreting her will. Section 474.430, RSMo. declares: “All courts and others concerned in the execution of last wills shall have due regard to the directions of the will, and the true intent and meaning of the testator, in all matters brought before them.” As said in Legg v. Wagner, 155 S.W.2d 146[1] (Mo.1941): “In construing the will certain rules for construction must be considered. The true intent of the testator must be determined. ‘The controlling rule in construing wills in this state, to which all technical rules of construction must give way, is to give effect to the true intent and meaning of the testator as the same may be gathered from the whole instrument, if not violative of some established rule of law.’ ”

The “McMillan group” contends that by failing to provide for the contingency of William Kingston and Norah K. Lawrence dying without descendants before the trust terminated the testatrix intended those two shares were to pass by intestate succession to her heirs.

“It will be presumed that the testator intended to dispose of his entire estate. . ” Legg v. Wagner, supra. This principle against intestacy was stressed in Shaw v. Wertz, 369 S.W.2d 215[8-13] (Mo.1963): “ . . . when a provision in a will is fairly open to more than one construction, that construction which results in intestacy, particularly when the will otherwise indicates that partial intestacy was not intended, will not be adopted if it can be avoided by any other reasonable construction.”

We look to the words of Eliza McMillan’s will to determine whether she intended to treat the eight remaindermen collectively or individually. Note her Item Fifth (with our emphasis): “AH the rest and residue of my estate, of every nature and whatsoever and wheresoever situate . [lapsed annuities] shall be added to the corpus or principle of the estate, for the benefit of my residuary legatees . the property then composing the trust estate, together with the then unexpended or undivided income therefrom, shall be distributed equally, share and share alike, among, and paid to, the said [residuary legatees] and their respective descendants.” At three places in testatrix’ will she referred to the eight remaindermen as “my residuary legatees.” Division of the corpus was to be made among them. From all this we conclude the testatrix left the residuary trust to the eight remaindermen collectively, not individually.

This conclusion of a collective gift is buttressed by the case of McElroy v. Fluker, 265 S.W.2d 361[4] (Mo.1954). There the testator left his daughter Gladys $1,000 but bequeathed his residuary estate to his sisters Jenny and Florence “share and share alike,” thereby omitting daughter Gladys from the residue. Sister Jenny predeceased the testator and daughter Gladys contended her father had died intestate as to Jenny’s one-half the residuary estate. In refuting this and holding surviving sister Florence was entitled to the full residuary estate the court said: “Defendant Gladys was given $1,000 by Item 3, and no further mention was made of her. If testator had intended that she, in any event, was to further share in his estate he no doubt would have said so. To impute to the testator the intention to die intestate as to half of the residuum would be to augment, by distribution to her of half of the residuum, the $1,000 (only) bequest to the daughter. The will nowhere indicates such an intention. And so it would seem that he considered Item 13 as complete, in any event, in disposing of ‘the balance of all personal property.’ ”

There is still another reason to refute Norman Webber’s and Lucy Brown’s efforts to share in the residuary trust estate as testatrix’ intestate heirs. Their contention conflicts with another expression of the testatrix’ intent. She had given her son William substantial gifts of real and personal property, but note this provision in her will: “I will make no other provisions for my said son in and by this will for the reason that he has already been amply provided for in and by his father’s will.”

Norman Webber’s and Lucy Brown’s claimed rights as intestate heirs of Eliza McMillan arise as legatees of her son William McMillan, whom testatrix specifically excluded from the residuary trust. Norman and Lucy’s rights are no greater than William’s would be were he still alive. To test this hypothesis let us assume William McMillan were alive today contending the lapsed residuary shares of William Kingston and Norah Lawrence had passed to him by intestate succession as his mother’s sole heir. The testatrix’ intent being a prime factor in construing her will, William McMillan’s claim would be demolished by the provision of her will declaring that beyond the specific testamentary gifts she had made to him he was not to participate in her estate. That clear intent would bar his contention that the testamentary shares of William Kingston and Norah Lawrence were intended by the testatrix to pass to him by intestate succession. The present more remote successors have no rights higher than William McMillan would have had. So, Eliza McMillan’s intent that her son not participate further in her estate precludes those now claiming under him.

The “McMillan group” also challenges the distributive share of the corpus awarded plaintiff Jean Cavers, contending her share of the legacy has lapsed. They refer to the residuary clause of the will bequeathing the corpus to “Jennie Cavers or her said daughters,” contending since Jean Cavers was not Jenny Cavers’ daughter but only a stepdaughter, that share lapsed and passed to them as the testatrix’ intestate heirs. This argument falls, for two reasons: First, we note that the will elsewhere referred to Jean Cavers as Jennie Cavers’ stepdaughter. The words “daughters” and “stepdaughters” are surplusage. We fully concur in the trial court’s interpretation of the will negating any lapse of Jenny Cavers’ share: “Testatrix intended to give Lynn and Jean Cavers the same interest they would have had if they were Jennie Cavers’ natural.daughters.”

Second, even were that not so, it would avail the “McMillan group” nothing since they claim as Eliza’s intestate heirs through her son William. As ruled supra testatrix' exclusion of her son William from her residuary estate precludes the McMillan group from succession through him.

As ruled by the trial court, we hold the residuary trust corpus should now be distributed to the five successors of the eight original remaindermen. The judgment below is affirmed.

The trial court properly reserved jurisdiction of the cause to make allowances for and ordering payments to attorneys and guardians at litem as fees and costs, and to thereafter order the trustee to pay the corpus to the distributees. For that purpose the cause is remanded.

Judgment affirmed and cause remanded.

KELLY and STEWART, JJ., concur.

      . The trial court filed detailed findings of fact and conclusions of law, a practice most helpful on appeal.

      . For present purposes the term “defendants” excludes adult defendants Norman Webber and Lucy Janet Webber Brown, who favor trust termination, but oppose the trial court’s excluding them from distribution of the corpus, to which they claim interests as intestate heirs of the testatrix.