Pickett v. Spain , 254 Va. 107 ( 1997 )

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Koontz, JJ., and Whiting, Senior Justice
OWEN B. PICKETT, EXECUTOR UNDER THE
WILL OF H. CALVIN SPAIN, DECEASED
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 961958 June 6, 1997
SUSAN C. SPAIN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
J. Warren Stephens, Judge Designate
In this appeal, we consider whether the doctrine of
election prevents a beneficiary named in a will from
asserting a right of contribution arising from her payment
of debts she and the testator owed at the time of the
testator's death.
The litigants stipulated the following facts. H.
Calvin Spain died testate on December 4, 1992. The
beneficiaries of his will and a trust, both executed on
November 17, 1992, were his widow, Susan C. Spain, and three
children from a previous marriage.
The will directed the executor, Owen B. Pickett, to pay
the testator's "just debts, excluding any mortgage
indebtedness on [the] home for which [his] wife and [he] are
jointly liable, even though [his] home passes to her by
survivorship. . . ." The trust agreement contains the
following provision:
"In the event that the intangible personal
property passing as part of the Residuary Estate
under the Grantor's last will and testament is not
sufficient to pay all the Grantor's debts
(excluding any debt secured by deed of trust or
other lien upon the real estate constituting the
Grantor's residence for which the Grantor and his
wife are jointly liable) . . . then the Trustee
may pay out of the Trust Fund to the Grantor's
personal representative such amount as, when added
to the intangible personal property available to
the Grantor's personal representative from
property passing as part of the Grantor's
Residuary Estate under his Will, will be
sufficient to pay in full all such debts,
expenses, legacies, costs and taxes, subject to
instructions hereinafter set forth."
Under the will, the decedent's tangible personal
property was vested in his children, but the wife had the
"nonassignable personal exclusive right to the use in [the
marital] home of all [the decedent's] furniture and
furnishings in [the] home for so long as she lives and does
not remarry."
The remainder of the decedent's personal property was
left to his executor as trustee under the trust agreement.
Among other things, the trust agreement created a residuary
trust which included tangible personal property and the
remaining assets of the estate following payment of debts.
The trust agreement authorized the trustee to "use the
diverted funds [income on the Residuary Trust] as necessary
to protect the value and ownership of the [marital]
residence until the same can be liquidated in a reasonable
time and in the reasonable course of business." In
conformity with that direction, the trustee paid $32,636.30
from the trust for monthly mortgage payments and insurance
and maintenance for the marital residence.
In 1982, Mrs. Spain purchased and took title to the
marital residence with $110,000 of the proceeds from the
sale of her former residence. Subsequently, she executed a
deed of gift conveying the marital residence to her husband
and herself as tenants by the entirety with rights of
survivorship. To fund certain obligations of the husband,
the Spains executed notes secured by deeds of trust upon the
marital residence, which were satisfied after the husband's
death when Mrs. Spain sold the former marital residence.
The balance of the notes at the time of satisfaction was
approximately $246,729.
By letter dated June 23, 1993, Mrs. Spain informed the
executor that she was entitled to contribution from the
estate for one-half of the mortgage indebtedness for which
she and the testator were jointly obligated. The executor
refused to honor her claim and asserted that she could not
recover contribution from the estate because she had
purportedly elected to receive certain benefits pursuant to
the terms of the will. Mrs. Spain challenged the executor's
accounting before the commissioner of accounts, who approved
the accounting as submitted by the executor. Mrs. Spain
filed exceptions to the commissioner of accounts' report
with the chancellor, who sustained her exceptions and
awarded her contribution. The executor appeals.
The executor argues that Mrs. Spain is not entitled to
receive contribution for her payments in satisfaction of the
mortgages because she voluntarily elected to accept benefits
under the will and trust. We disagree.
We have discussed the doctrine of election on several
occasions.
"[I]n order to make a case of election it is
equally well settled that the intention of the
testator to give that which is not his own must be
clear and unmistakable. It must appear from his
language, which is unequivocal and which leaves no
room for doubt as to the intention of the
testator. Penn v. Guggenheimer, supra. . . . It
is not necessary that such intention should be
expressly declared, but it may be gathered from
the whole and every part of the instrument. But
the will must be reasonably construed, even where
by so doing the parties are put to an election.
Penn v. Guggenheimer, supra. . . ."
Waggoner v. Waggoner, 111 Va. 325, 328, 68 S.E. 990, 991-92
(1910); accord Johnson v. McCarty, 202 Va. 49, 57-58, 115
S.E.2d 915, 921 (1960); Penn v. Guggenheimer, 76 Va. 839,
846 (1882); Gregory v. Gates, 71 Va. (30 Gratt.) 83, 89-90
(1878).
Here, the doctrine of election simply has no
application. Mrs. Spain has a common law right of
contribution against the estate of the testator because she
was a co-maker of the notes which were secured by deeds of
trust on property owned jointly by co-makers with the right
of survivorship. See Brown, Adm'r v. Hargraves, 198 Va.
748, 751, 96 S.E.2d 788, 791 (1957). See also Code § 8.01-
11(B). The testator did not use language in his will or his
trust which evinces a clear intention to require Mrs. Spain
to make an election between her right of contribution and
any benefit she may receive under the will.
For the foregoing reasons, we will affirm the judgment
of the chancellor.
Affirmed.