RENDERED: OCTOBER 22, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0416-MR

SHIRLEY THORNHILL, BY AND 

THROUGH STEPHEN D. 

THORNHILL, ATTORNEY-IN-FACT APPELLANT 

v. 

APPEAL FROM MEADE CIRCUIT COURT

HONORABLE KENNETH H. GOFF, II, JUDGE

ACTION NO. 18-CI-00219 

ESTATE OF BRIAN LYNN BUTLER, 

BY AND THROUGH JIMMY D. 

BUTLER, EXECUTOR; AND ESTATE 

OF VIRGINIA DOUGLAS MILBURN 

CLAYCOMB, BY AND THROUGH 

RUTH G. BUTLER, EXECUTRIX APPELLEES 

OPINION

AFFIRMING

**   **  **

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

McNEILL, JUDGE: Shirley Thornhill (“Thornhill”) appeals from a Meade Circuit 

Court declaratory judgment in favor of appellees, Estate of Brian Lynn Butler and 
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Estate of Virginia Douglas Milburn Claycomb. For the following reasons, we 

affirm. 

This is a will contest case concerning the rights of beneficiaries under 

the will of Virginia Douglas Milburn Claycomb (“Claycomb”), who died March 

22, 2018. Claycomb’s will was executed on January 22, 2010. Items V and VI of 

Claycomb’s will provide:

Item V

I give, devise, and bequeath unto my grandson, Brian

Lynn Butler, the option to purchase my 255 acre home 

place farm located at 200 Claycomb Road, Guston, Ky,

40142, for the sum of Two Hundred and Fifty Thousand 

($250,000.00) Dollars, and I further state that he shall

have Twelve (12) months from the date of my death to 

notify my personal representative of his intentions to 

exercise this option. If he agrees to purchase the 

property, the net proceeds shall be distributed equally in 

accordance with Item VI of this my Last Will and 

Testament. In the event, he does not exercise this option, 

then I direct my personal representative to sell and 

convey said home place farm as stated and under the 

same distributive conditions of Item VI of this my Last 

Will and Testament.

Item VI

All the rest and residue of my estate, whether real, mixed 

or personal, wherever situated, I give, devise, and 

bequeath unto my beloved daughters, namely Shirley 

Claycomb Thornhill, Ruth Gail Claycomb Butler, and 

Shirley Gail Claycomb[.] 
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At the time of Claycomb’s death, Brian Lynn Butler (“Butler”), was 

severely ill and hospitalized. On May 12, 2018, Butler died. On June 12, 2018, 

Claycomb’s will was probated and Butler’s mother, Ruth Gail Butler, was 

appointed the executrix of Claycomb’s estate. Butler’s father, Jimmy Butler, was 

appointed administrator of Butler’s estate on June 19, 2018.

On that same day, Thornhill, a beneficiary under Claycomb’s will, 

filed a petition for declaration of rights in the Meade Circuit Court alleging Butler 

failed to exercise the option prior to his death and asserting her interest in the real 

property. A bench trial was held on September 9, 2019. At trial, Ruth Gail Butler 

testified that on April 9, 2018, while Butler was in the hospital, he expressed to her 

his intent to purchase the farm and finance the purchase. She understood Butler to 

be exercising the option in Claycomb’s will. She further testified that she and 

Butler spoke about his intent to purchase the farm several times. At the time of 

these conversations, Ruth Gail Butler had not yet been appointed the executrix of 

Claycomb’s estate. 

Following trial, the circuit court entered findings of fact, conclusions 

of law, and a declaratory judgment in favor of the Estate of Brian Lynn Butler and 

the Estate of Virginia Douglas Milburn Claycomb. The court found Butler had 

properly exercised the option by notifying Claycomb’s personal representative, 

Ruth Gail Butler, of his intent to purchase the farm within twelve months of 
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Claycomb’s death. Although Ruth Gail Butler was not Claybomb’s personal 

representative at the time of the notice, the court held that once she was appointed 

executrix her authority related back, because accepting Butler’s notification of his 

intent to exercise the option was an act within the scope of her authority as 

executrix, citing Allison v. Cocke’s Executors, 106 Ky. 763, 51 S.W. 593, 21 Ky. 

L. Rptr. 434 (1899) and Carter’s Executors v. Carter, 49 Ky. 327, 10 (B. Mon.) 

327, 1850 WL 3573 (1850). This appeal followed.

We review the construction of a will de novo. Hammons v. 

Hammons, 327 S.W.3d 444, 448 (Ky. 2010). However, findings of fact made by 

the trial court shall not be set aside unless clearly erroneous, and due regard shall 

be given to the opportunity of the trial court to judge the credibility of witnesses.

Kentucky Rules of Civil Procedure (“CR”) 52.01. Findings of fact are not clearly 

erroneous if supported by substantial evidence. Hoskins v. Beatty, 343 S.W.3d 

639, 641 (Ky. App. 2011) (citation omitted).

“The ‘polar star rule’ of wills construction provides that the intention 

of the testator, if not contrary to the law, controls.” Hammons, 327 S.W.3d at 448

(citation omitted). “Thus, a court’s primary duty is to ascertain and give effect to 

the testator’s intent.” Id. “To ascertain the testator’s intention, it is necessary to 

first examine the language of the instrument. If the language used is a reasonably 
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clear expression of intent, then the inquiry need go no further.” Clarke v. Kirk, 795 

S.W.2d 936, 938 (Ky. 1990) (citation omitted). 

Thornhill argues the trial court erred in allowing extrinsic evidence as 

to Claycomb’s intent without finding the will ambiguous. At trial, the court 

allowed testimony concerning an agreement between Claycomb and Butler which 

allowed Butler to farm Claycomb’s land. However, this evidence was irrelevant to 

the trial court’s findings concerning Claycomb’s intent, which were based upon the 

language of the contract alone. Therefore, we find no error.

Pursuant to the will, Butler had the option of purchasing the farm for 

$250,000.00 if he notified Claycomb’s personal representative “of his intentions to 

exercise th[e] option” within twelve months of Claycomb’s death. In its findings 

of fact, the trial court held 

[i]t is obvious from the language set forth in Virginia’s 

Will that Virginia wanted Brian to have an opportunity to 

purchase the farm for $250,000.00. There is

uncontradicted evidence that Brian exercised his option

when he advised the Executrix of Virginia Claycomb’s 

Estate that he intended to exercise his option. 

We agree with the trial court’s construction of the will. And its finding that Butler 

notified Claycomb’s representative of his intention to exercise the option is 

supported by substantial evidence. 

Next, Thornhill contends the option was personal to Butler and cannot 

be exercised by his estate. She argues that since Butler “failed to fully exercise the 
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option,” it terminated upon his death. It appears Thornhill is arguing that since the 

purchase was not finalized in Butler’s lifetime, his estate cannot now complete the 

purchase. However, “[t]he ‘exercise’ of an option is merely the election of the 

optionee to purchase the property. By the use of the word ‘accept’ in a particular 

option contract, the parties mean the same as ‘exercising’ the option.” 92 C.J.S. 

Vendor and Purchaser § 171 (2020) (footnotes omitted).

The general rule is that “an option must be accepted according to its 

terms[.]” Phelps v. Gover, 394 S.W.2d 927, 928 (Ky. 1965). Therefore, we look 

to the language of the will to determine what was required to exercise the option. 

The will provides that Butler “shall have Twelve (12) months from the date of my

death to notify my personal representative of his intentions to exercise this option.”

“Where there is no ambiguity, a written instrument is to be strictly 

enforced according to its terms which are to be interpreted ‘by assigning language 

its ordinary meaning and without resort to extrinsic evidence.’” Allen v. Lawyers 

Mut. Ins. Co. of Kentucky, 216 S.W.3d 657, 659 (Ky. App. 2007) (citing Island 

Creek Coal Co. v. Wells, 113 S.W.3d 100, 104 (Ky. 2003)). The language of the 

will is clear and unambiguous. To exercise the option, Butler only had to notify 

Claycomb’s personal representative of his intentions to do so within twelve months 

of her death. The will says nothing about payment. “Where an option contract 

does not provide for payment of the purchase price at the time of an optionee’s 
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exercise or where such contract is silent as to the time of payment, the general rule 

is that payment is not a necessary requisite to exercise.” 49 AM. JUR. 2d Landlord 

and Tenant § 336 (2020) (footnote omitted).

Once Butler accepted the option, the parties had a binding contract. 

Carter v. Frakes, 303 Ky. 244, 197 S.W.2d 436, 438 (1946). “The representative 

of a decedent who had a contract to purchase land has both a right and a duty to 

pay the purchase money and enforce the contract.” 31 AM.JUR. 2D Executors and 

Administrators § 527 (2021).

For the foregoing reasons, the judgment of the Meade Circuit Court is 

affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Stephen G. Hopkins 

Hardinsburg, Kentucky

BRIEF FOR APPELLEE:

Alec Stone

Brandenburg, Kentucky