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RENDERED: JANUARY 21, 2021

TO BE PUBLISHED

Supreme Court of Kentucky

2019-SC-0279-DG

ESTATE OF JOHN C. BENTON, JR. BY

MARY M. MARCUM, AS EXECUTRIX

APPELLANT

ON REVIEW FROM COURT OF APPEALS

V. NO. 2018-CA-0075-MR

BOONE CIRCUIT COURT NO. 12-CI-02278

TIM THOMAS CURRIN AND

JAN MARIA CURRIN

APPELLEES

OPINION OF THE COURT BY JUSTICE VANMETER

REVERSING AND REMANDING

Under KRS1 395.278 and CR2 25.01, when a party dies during the 

pendency of an action, the personal representative of the decedent must be 

substituted as a party within one year for the action to be revived. The issue 

we must decide in this case is whether the Court of Appeals erred in holding 

that Mary Marcum, as executrix of John Benton, Jr.’s estate,3 failed to comply 

with the requirements for revival because her motion to substitute under CR 

 

1 Kentucky Revised Statutes.

2 Kentucky Rules of Civil Procedure. 

3 In this opinion, our reference to Marcum is in her fiduciary capacity as 

Executrix under her father’s will.
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25.01, alone, did not constitute revival. We hold that the Court of Appeals 

erred and that substitution of a party pursuant to CR 25.01 within the oneyear limit set forth in KRS 395.278 sufficiently revives a claim. We therefore 

reverse the Court of Appeals’ decision and remand this case to that Court to 

resolve the other issues raised by the parties in the appeal.

I. Facts and Procedural Background

In late 2012, John Benton, Jr., filed this action in the Boone Circuit 

Court to cancel a deed granted to Jan and Tim Currin, alleging failure of 

consideration and fraud in the inducement. The Currins filed an answer and 

counterclaim.4 In May 2014, Benton died. Seven months later, Marcum, 

Benton’s daughter who had been appointed executrix of her father’s will, filed a 

motion under CR 25.01 to substitute the estate in the action. The following 

day, the Currins filed their motion to revive their counterclaim. Both motions 

were granted in January 2015. After several more years of litigation, and after 

a deadline for dispositive motions had passed, the Currins moved to dismiss 

the action, claiming that Marcum’s motion for substitution was flawed because 

it did not revive the cause of action in the case. The trial court denied the 

motion. The matter then proceeded to trial. A jury returned a verdict in favor 

of Marcum, finding that Benton had intended the deed as compensation for the 

Currins’ services, which were unfulfilled. In accordance with the jury verdict, 

 

4 After losing an initial motion for summary judgment, the Currins filed their 

answer, along with a counterclaim and third-party complaint. The third-party 

complaint joined, as third-party defendants, Benton Family Farms, Inc. and Benton as 

trustee of the John C. and Rose Benton Trust.
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the trial court entered judgment cancelling the deed for a failure of

consideration.5

The Currins appealed to the Court of Appeals raising several issues. The 

Court of Appeals addressed only the issue of revival, holding that while

Marcum had timely moved for substitution pursuant to CR 25.01, she failed to 

properly revive the action by a separate KRS 395.278 motion. The Court of 

Appeals reversed the trial court’s judgment. We granted Marcum’s motion for 

discretionary review.

II. Standard of Review

As this matter involves questions of pure statutory interpretation, the 

meaning and impact of KRS 395.278 and CR 25.01, we review the lower court’s 

decision de novo. Hauber v. Hauber, 600 S.W.3d 204, 207 (Ky. 2020) (citing 

Commonwealth v. Moore, 545 S.W.3d 848, 850 (Ky. 2018)). In conducting our 

review, we afford no deference to the lower courts’ statutory interpretations or 

conclusions of law. 600 S.W.3d at 207 (citing Seeger v. Lanham, 542 S.W.3d 

286, 290 (Ky. 2018)).

III. Analysis

When a party to an action dies while that action is pending, that action is 

abated and lies dormant until it is revived by a proper successor-in-interest. 

Hardin Cnty. v. Wilkerson, 255 S.W.3d 923, 926 (Ky. 2008). KRS 395.278 

 

5 The trial court also denied the Currins’ motions notwithstanding the verdict; 

to alter, amend, or vacate the judgment; as well as a motion to rehabilitate the verdict 

by operation of law.
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provides that “[a]n application to revive an action in the name of the 

representative or successor of a plaintiff, or against the representative or 

successor of a defendant, shall be made within one (1) year after the death of a 

deceased party.” CR 25.01, which operates in conjunction with KRS 395.278, 

provides, in pertinent part: 

(1) If a party dies during the pendency of an action and the claim is 

not thereby extinguished, the court, within the period allowed by 

law, may order substitution of the proper parties. If substitution is 

not so made the action may be dismissed as to the deceased party. 

The motion for substitution may be made by the successors or 

representatives of the deceased party or by any party[.]

We recognize that KRS 395.278 and CR 25.01(1), in tandem, provide the 

process of revival as well as the window within which it must be completed. 

Understanding the relationship between the two resolves this dispute.

In Daniel v. Fourth & Market, Inc., 445 S.W.2d 699 (Ky. 1968), our 

predecessor court detailed the history of revival in Kentucky. It noted that at 

common law when a plaintiff passed away while prosecuting a case, the case

died with him, leaving his rightful successors-in-interest without an 

opportunity to vindicate any newly acquired rights. Id. at 701. At least as 

early as 1811, the legislature provided for the survival and revival of a personal 

injury action. Id. at 700.6 In 1851, with the codification of Kentucky statutes, 

 

6 KRS 411.140 now provides for survival of actions: 

No right of action for personal injury or for injury to real or personal 

property shall cease or die with the person injuring or injured, except 

actions for slander, libel, criminal conversation, and so much of the 

action for malicious prosecution as is intended to recover for the 

personal injury. For any other injury an action may be brought or revived 

by the personal representative, or against the personal representative, 
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the legislature placed revival provisions in the Civil Code. Id. Under the Civil 

Code, revival was a procedural mechanism whereby a decedent’s successor 

could be substituted in an action. See, e.g., Thompson’s Adm’r. v. Williams, 86 

Ky. 15, 20, 4 S.W. 914, 916 (1887) (stating that “[t]he order to revive is a 

summary mode of bringing the representatives or successors of the deceased 

party before the court[.]”). In Davie’s Ex’r v. City of Louisville, 171 Ky. 663, 

672, 188 S.W. 911, 915 (1916), the court stated as “obvious that the chief 

purpose of the [revival] statutes, which prescribe the manner and occasion of 

procedure to cause a revivor, is to bring the parties in interest before the court, 

that the rights of all may be conserved. Appearance to an action without 

questioning the mode of procedure is a waiver.” By so stating, the Court 

clearly minimized necessary formalities associated with revivor, in favor of 

resolving claims on the merits. Our predecessor court early on understood the 

purpose of revival in that way. See, e.g., Bently v. Gregory, 23 Ky. (7 T.B.Mon.) 

368, 369 (1828) (administrator’s appearance before the appellate court was 

sufficient to constitute revival, despite irregularity in serving order of revival on 

administrator).

In 1950, the General Assembly created the Kentucky Civil Code 

Committee “to improve civil practice and procedure in the courts of the 

Commonwealth, . . . and to formulate and execute plans and policies for the 

 

heir or devisee, in the same manner as causes of action founded on 

contract.
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simplification, clarification and revision of the Code[.]”7 After inviting comment 

from members of the Kentucky Bar, the Committee resolved to “insofar as 

practicable” follow the Federal Rules of Civil Procedure8 to create a uniform set 

of rules.9 As part of its report, the Committee identified and bifurcated 

procedural rules from their substantive rights-granting counterparts.10 

Consequently, in 1952 and 1953, the Revivor of Actions provisions of the Ky. 

Civ. Code §§ 500-512 (Banks-Baldwin Law Publ. Co. 1948) were bifurcated into 

CR 25.01 and KRS 395.275 – 395.277.11 In 1974, the statutory aspects of 

revival were further simplified by the repeal of KRS 395.275 – 395.277, and the 

enactment of KRS 395.278.12

Our case law in the years following our adoption of the Rules of Civil 

Procedure reflects a modified understanding of revival from the process detailed 

in thirteen sections of the Civil Code, §§ 500 – 512, to a motion made under CR 

25.01. In Daniel, we reaffirmed that the revival statute grants a substantive 

right to the would-be litigant, while acknowledging that CR 25.01 was the 

appropriate procedural means by which it was to be achieved. 445 S.W.2d at 

 

7 Porter Sims, The Work of Kentucky’s Civil Code Committee, 40 KY. L.J. 7 

(1951). 

8 Id. at 8. This statement is noteworthy because the 1937 advisory committee 

to the Supreme Court of the United States expressly required only a motion to 

substitute, replacing the prior enacted revivor statute. 1937 Rep. Adv. Comm. on 

Rules for Civil Procedure. p. 65. 

9 Sims, 40 KY. L.J. at 8.

10 Id. at 7-8.

11 Civ. Code § 507 was recodified as KRS 395.275, Civ. Code § 508 as KRS 

395.276, and Civ. Code § 509 as KRS 395.277.

12 Act of Mar. 28, 1974, ch. 299, §§ 16, 19, 1974 Ky. Acts 546, 550.
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701. In that case, the plaintiff died after filing his action. While a revival 

motion had been prepared for his widow within three months, she did not file 

that motion, or otherwise notify the court of her intention to be substituted, 

until almost two years later. In other words, she acted well beyond the oneyear time limit allotted by KRS 395.277. Id. at 700. In its analysis of the 

revival statute and CR 25.01, the Court construed the revival statute as a 

“statute of limitation, and not a law ‘relating to pleading, practice, and 

procedure[.]’” Id. (citing New Farmers Nat’l. Bank v. Thomas, 41 S.W.2d 672 

(Ky. 1967)). Instead, the Court looked to CR 25.01(1) as the appropriate 

process by which the revival could have been made, finding the time bar 

dispositive. Id. at 701. 

Our more recent case law reflects this analysis as well. In Hammons v. 

Tremco, Inc., 887 S.W.2d 336 (Ky. 1994), we stated that:

[T]he period during which an action may be revived by the 

successor or personal representative of a deceased party is limited 

to one year. This provision operates as a statute of limitations; 

therefore, the period set forth in the statute is mandatory and . . .

[i]f a motion to revive the action and to substitute the successor or 

personal representative of the deceased party is not made within 

the prescribed time, the action may be dismissed as to the 

deceased party. CR 25.01(1).

Id. at 338. As in Daniel, “no application to revive the action in the name of a 

successor or personal representative of the decedent ha[d] been made; and 

more than one year ha[d] passed since [Hammons’] death.”13 Id. 

 

13 We reaffirmed this position in Harris v. Jackson, 192 S.W.3d 297, 304 

(Ky.2006). We acknowledge, however, the confusion from the quotation in Hammons
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The Court of Appeals, in its decision below, relied heavily on the following 

language in Hammons, “KRS 395.278 and CR 25.01(1) require that when a 

plaintiff dies any action pending on the part of the deceased plaintiff must be 

revived by decedent’s successor or personal representative within one year, and 

the successor or personal representative must be substituted as the real party 

in interest.” Id. Its reliance on that language is misplaced. Hammons 

addressed whether jurisdiction could exist when a party died, and his 

successor gave no notice to the court, a situation factually distinguishable from 

the one before us. Marcum’s motion to substitute herself as the Executrix of 

Benton’s Estate informed the court and the parties, well within the one-year 

statute of limitations, of her father’s passing and her intention to continue the 

case. Notably, the Currins filed their own revival motion against Marcum, thus 

clarifying that all parties involved were apprised of the substitution.14 The 

Currins were not free to continue litigating the case against Marcum for years 

after her substitution was accepted by the court, only to object mere weeks 

before trial to its sufficiency in an effort to avoid adjudication on the merits.15 

Furthermore, the Currins do not argue that Marcum does not have standing to 

 

that seems to create a two-part step “to revive the action and to substitute the 

successor[.]” 887 S.W.2d at 338. 

14 Under CR 25.01(1), a timely motion to substitute filed by either Marcum or 

the Currins would have satisfied KRS 395.278.

15 We note that even if the Currins had objected to Marcum’s substitution when 

the motion was before the court they would still not have been successful because 

Marcum had satisfied the requirements of CR 25.01(1).
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continue the litigation. In fact, they had several opportunities following the 

motion for substitution to object to her intervention and failed to do so. 

The Court of Appeals’ formalistic approach to revival belies its legislative 

and judicial history. From the beginning, revival was a means by which the 

legislature sought to alleviate the already harsh realities of death. Revival was, 

and continues to be, a vehicle by which successors-in-interest give notice to 

the court of the passing of the original party and signal their intent to take on 

the rights and liabilities associated with the original action. With the adoption 

of the rules of civil procedure in 1953, the legislature and the court 

acknowledged that substitution of the proper parties accomplished that goal.16 

The Court of Appeals’ approach of a two-step process unnecessarily 

complicates this process and merely creates a trap for the unwary.17 We 

decline to adopt this approach. Instead, we affirm that KRS 395.278 is a 

statute of limitation, and that a motion for substitution properly filed with the 

court in accordance with CR 25.01(1) within the one-year allotted by the 

legislature constitutes revival.18 To the extent that the following Court of 

Appeals decisions mandate a two-step process of a motion to revive and a 

 

16 CR 25.01(1) speaks explicitly of “proper parties[,]” imposing on judges the 

responsibility to ascertain and evaluate whether the individual or entity filing the 

motion for substitution is appropriate.

17 Judge Sims concluded his article with the comment, “[w]e all stand united 

that the maxim ‘in our law one comma overturns the whole pleading’ shall be 

eliminated from Kentucky procedure.” Sims, 40 KY. L.J. at 10.

18 Notwithstanding a simplified procedural process for substitution/revival, in 

Hardin County, 255 S.W.3d at 926, we noted that “the revival statute ‘has always been 

strictly construed.’ Daniel, 445 S.W.2d at 701. ‘[T]he period set forth in the statute is 

mandatory and not subject to enlargement.’ Hammons, 887 S.W.2d at 338.”
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motion to substitute, they are overruled: Lococo v. Ky. Horse Racing Comm'n, 

483 S.W.3d 848 (Ky. App. 2016); Koenig v. Pub. Prot. Cabinet, 474 S.W.3d 926 

(Ky. App. 2015); Frank v. Estate of Enderle, 253 S.W.3d 570 (Ky. App. 2008); 

Snyder v. Snyder, 769 S.W.2d 70 (Ky. App. 1989). Because we hold that 

Marcum was properly substituted into the action, we deem it unnecessary to 

address extensively her argument as to whether this action was one that 

abated on Benton’s death.19

IV. Conclusion

For the foregoing reasons this case is reversed and remanded to the

Court of Appeals for consideration of the unaddressed issues raised by the 

parties in their appeal.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Marcus Stephen Carey

COUNSEL FOR APPELLEE:

Charles E. Bullard

Mary Gina Hayes

Bullard & Hayes

 

19 Simply stated, the interplay between CR 25.01, KRS 395.278, and KRS 

411.140 is that when a party dies, any action may be revived by substituting the 

personal representative, CR 25.01, within one year of the date of death, KRS 395.278, 

except for those actions listed in KRS 411.140 which do not survive the deceased’s 

death, e.g., slander, libel, etc.