RENDERED: NOVEMBER 5, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0065-MR

JOHNNY MCCOY AND MICHELLE 

MCCOY APPELLANTS 

v. 

APPEAL FROM MARTIN CIRCUIT COURT

HONORABLE JOHN DAVID PRESTON, JUDGE

ACTION NO. 19-CI-00145 

JENNIFER LYNN HORN, 

EXECUTRIX OF THE ESTATE OF 

JACKIE JORDAN APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, McNEILL, AND L. THOMPSON, JUDGES.

McNEILL, JUDGE: Johnny and Michelle McCoy (“McCoys”) appeal from an 

order of the Martin Circuit Court granting summary judgment in favor of Jackie 

Jordan1(“Jordan”), finding the McCoys, who held remainder interests in a home 

 

1 Sadly, Jordan died on December 31, 2019. Jennifer Lynn Horn, Executrix of the Estate of 

Jackie Jordan, was substituted as the party-appellee on August 31, 2020. 
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destroyed by fire, are not entitled to any of the insurance proceeds. Finding no 

error, we affirm.

On January 25, 2017, Jordan conveyed a remainder interest in certain 

real property, including a home, to the McCoys. However, Jordan retained a life 

estate in the real property and continued to live in the home. He purchased an 

insurance policy on the home and its contents, paid the premiums, and was the sole 

insured. On October 28, 2018, the home was destroyed by fire. 

Following the fire, Jordan filed a petition for declaration of rights2in 

Martin Circuit Court arguing he was the sole beneficiary of the insurance proceeds. 

The McCoys answered the petition and filed a counterclaim, asserting that, as 

remaindermen, they were entitled to a share of the proceeds. Subsequently, both 

parties moved for summary judgment on the issue. On December 19, 2019, the 

circuit court entered an order granting Jordan’s motion for summary judgment and 

denying the McCoys’ motion. This appeal followed. 

“The standard of review on appeal of a summary judgment is whether 

the trial court correctly found that there were no genuine issues as to any material 

fact and that the moving party was entitled to judgment as a matter of law.” Scifres 

 

2

Jordan subsequently filed an amended petition for declaration of rights to correct an error in the 

original petition’s caption. 
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v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996) (citing CR3 56.03). “The record 

must be viewed in a light most favorable to the party opposing the motion for 

summary judgment and all doubts are to be resolved in his favor.” Steelvest, Inc. v. 

Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). “Because

summary judgment involves only legal questions and the existence of any disputed 

material issues of fact, an appellate court need not defer to the trial court’s decision 

and will review the issue de novo.” Lewis v. B & R Corporation, 56 S.W.3d 432, 

436 (Ky. App. 2001).

Kentucky follows the majority rule which holds that a “life tenant is 

not bound to keep the premises insured for the benefit of the remainder-man. Each 

can insure his own interest, but, in the absence of any stipulation or agreement, 

neither has any claim upon the proceeds of the other’s policy . . . .” Spalding v. 

Miller, 103 Ky. 405, 45 S.W. 462, 464 (1898).

4

 The reasoning behind this view is 

that “[t]he contract of insurance is a personal contract, and inures to the benefit of 

the party with whom it is made, and by whom the premiums are paid. It is a 

contract of indemnity against loss. The sum paid is in no proper or just sense the 

proceeds of the property.” Id. (internal quotation marks and citations omitted). 

 

3 Kentucky Rules of Civil Procedure.

4 Although Spalding is not recent, it appears to still be the law in a majority of jurisdictions and 

has not been overruled in Kentucky.
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In contrast, the minority rule holds that based upon the life tenant’s 

relationship as an implied or quasi-trustee for the remainderman, “in case of the 

total destruction of the insured property, the fund from the insurance policy thereon 

is substituted for the property, and the life tenant will be entitled to the interest for 

life, and the fund after life tenant’s death will be payable to the remainder-men[.]” 

Green v. Green, 50 S.C. 514, 27 S.E. 952, 959 (1897). 

For whatever reason, the McCoys’ appellate brief fails to cite the 

relevant Kentucky precedent. Instead, they note that, like states holding the 

minority view, Kentucky has recognized that a life tenant is a quasi-trustee for the 

remainderman, citing Superior Oil Corporation v. Alcorn, 242 Ky. 814, 47 S.W.2d 

973, 987 (1930), as modified on denial of reh’g (May 8, 1931) (citation omitted)

(“The vast majority of the courts hold that a life tenant is a trustee for the 

remainderman . . . but we think it better to call him a quasi trustee.”). 

They point to an exception to the majority rule that a remainderman is 

not entitled to the insurance proceeds of a life tenant’s policy, when there is a 

fiduciary relationship between the life tenant and the remainderman, and argue this 

case falls within the exception because Kentucky courts have recognized that a life 

tenant is a quasi-trustee for the remainderman.

The McCoys cite two cases from other jurisdictions, Opha L. Keith 

Estate ex rel. Buckland v. Keith, 647 S.E.2d 731 (W. Va. 2007) and Ellerbusch v. 
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Myers, 683 N.E.2d 1352 (Ind. Ct. App. 1997), setting forth three recognized 

exceptions to the majority rule that a remainderman does not have an interest in 

insurance proceeds from the destruction of a life estate: (1) when the instrument 

creating the estate expressly provides that the life tenant will insure the property 

for the benefit of the remainderman; (2) when the life tenant and the remainderman 

agree to this requirement; or (3) if a fiduciary relationship exists between the life 

tenant and the remainderman. Buckland, 647 S.E.2d at 735; Ellerbusch, 683 

N.E.2d at 1354. 

As an initial matter, it does not appear Kentucky has recognized this 

exception to the majority rule.5 However, assuming its recognition, the standard 

fiduciary relationship that exists between a life estate and a remainderman is not 

the type contemplated by the exception. This is clear from the language of the 

exception itself: “A life tenant must provide insurance for the benefit of the 

remainderman . . . if a fiduciary relationship exists between the life tenant and the 

remainderman apart from the incidents of the tenancy.” Ellerbusch, 683 N.E.2d at 

1354 (emphasis added). Ellerbusch cited Clark v. Leverett, 159 Ga. 487, 126 S.E. 

258, 259 (1924), for this proposition, a case where the life tenant had an express 

 

5 Our highest court recognized the first two above exceptions in Spalding, 45 S.W. at 464 (“In 

the absence of anything that requires it in the instrument creating the estate, or of any agreement 

to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the 

premises insured for the benefit of the remainder-man.”). 
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fiduciary obligation as the remainderman’s guardian. Thus, the exception is 

premised on a fiduciary obligation beyond that generally associated with being a 

life tenant.

The Missouri Supreme Court recognized this distinction in Farmers’

Mutual Fire and Lightning Insurance Company v. Crowley, 354 Mo. 649, 190 

S.W.2d 250 (1945), where it found inapplicable the exceptions to the general rule 

that a remainderman is not entitled to the insurance proceeds from a policy taken 

out by the life tenant for his own benefit. Under similar circumstances to ours, the 

Missouri court has said:

In the case at bar, the will of Mary H. Crowley did 

not provide that respondent, the life tenant, should insure 

the property for the benefit of appellants, the 

remaindermen; no agreement by respondent to insure the 

property for appellants’ benefit was shown in evidence; 

respondent did not stand in any fiduciary relationship to 

the remaindermen other than the quasi trustee 

relationship of a life tenant; the respondent procured the 

contract of insurance in his own name as insured, and 

paid the assessments thereafter payable; and appellants 

were in no way parties to the contract of insurance.

Id. at 253 (emphasis added).

Like Mary Crowley in Missouri, who owed no independent duties to 

her remainderman, Jordan owed no express fiduciary obligation to the McCoys 

beyond the quasi-trustee relationship of a life tenant. As such, even if Kentucky 

recognized an exception to the majority rule where a fiduciary relationship exists 
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between the life tenant and the remainderman apart from the incidents of the 

tenancy, it would not be applicable in this case. 

Lastly, the McCoys argue that the majority rule is unfair and 

“discriminates against the remaindermen who, after a loss, are left with nothing but 

a smoldering heap of rubble to clean up.” However, as recognized in Ellerbusch, 

683 N.E.2d at 1355, “[d]espite the apparent inequity of the rule, a remainderman 

may protect his interest through an agreement with the life tenant that the latter 

carry insurance for the remainderman’s benefit” and each party “can insure for 

himself.” See also Saunders v. Armstrong, 22 Ky. L. Rptr. 1789, 61 S.W. 700, 700

(1901) (“The owner of the remainder or other interest may also have an insurance 

on the same property to protect himself from loss.”).

The McCoys could have entered into an agreement with Jordan to 

insure the property for their benefit or obtained insurance on the property 

themselves. While they contend they did “everything in their power to obtain 

insurance” but were told by Farm Bureau, the company Jordan insured the property 

through, that Farm Bureau could not double insure any structure, there is no 

evidence the McCoys attempted to insure the property through any other company. 

Wherefore, the order of the Martin Circuit Court granting summary 

judgment in favor of Jordan is affirmed. 
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ALL CONCUR.

BRIEF FOR APPELLANT:

Jaryd H. Crum

Paintsville, Kentucky 

BRIEF FOR APPELLEE:

Eldred E. Adams, Jr. 

Louisa, Kentucky