Request By:
Mr. Harold F. Gardner
Executive Director of the
Kentucky United Methodist
Higher Education Foundation, Inc.
Suite 2, 106 Court Street
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; Patrick B. Kimberlin, III, Assistant Attorney General
This letter is to advise you that we are withdrawing OAG 80-30 which we had previously sent to you in response to a question you had posed to this office. In that opinion we indicated that KRS 395.005, which specifies who may be appointed a fiduciary, could not be interpreted to include a charitable corporation. Our opinion was premised upon the ground that charitable corporations were not specifically included in the enumeration in KRS 395.005 of those entities or persons who may qualify for appointment as a fiduciary. Since charitable corporations were not mentioned under KRS 395.005 we concluded that they should therefore be excluded. Smith v. Wedding, Ky., 303 S.W.2d 322 (1957). However, upon reconsideration of this matter we believe that OAG 80-30 is incorrect and we are therefore withdrawing that opinion for the reason stated below.
Upon reconsideration it is our opinion that our prior interpretation of KRS 395.005 was so restrictive as to bring about an absurd result. George v. ABC Board, Ky., 421 S.W.2d 569 (1967); Wesley v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28 (1966). It should first be noted that KRS 395.001 defines "fiduciary" as "any person, association, or corporation. . . appointed by . . . the district court. . . ." There is no limitation in this statute excluding a charitable corporation from being a fiduciary. Yet, our prior interpretation of who may be appointed a fiduciary under KRS 395.005 would have eliminated charitable corporations from such appointment even though corporations of any sort are included under the definition of fiduciary. Our prior interpretation therefore would require an absurd result in limiting in a circumspect fashion the definition of fiduciary under KRS 395.001. Such a conflict is unnecessary and should be avoided since statutes dealing with the same subject matter should be made to harmonize wherever possible. Bischoff v. Hennessy, Ky., 251 S.W.2d 582 (1952).
We believe that KRS 395.001, defining "fiduciary, " and KRS 395.005, setting out who may be appointed a fiduciary, are in pari materia, that is dealing with the same subject matter, and should be read together. In reading those two statutes together it is now our opinion that the listing of those who may be appointed a fiduciary under KRS 395.005 is not exclusive. It is our opinion that a district court may appoint as a "fiduciary" as that term is defined in KRS 395.001, any person, association or corporation, including a charitable corporation to be the trustee of a charitable trust created in a will. Also see KRS 381.260.