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COLEMAN v. COLEMAN, ET AL. (59747)


COLEMAN v. COLEMAN, ET
AL.


June 5, 1998

Record No. 971833

LEROY COLEMAN

v.

VERDONDA COLEMAN, ET AL.

OPINION BY JUSTICE ELIZABETH B. LACY

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

John C. Morrison, Jr., Judge

Present: All the Justices


Katie Coleman executed a will in which she gave her daughter
Shirleeta a life estate in certain real property. The will
further provided that "[u]pon termination of said life
estate all the rest residue . . . of my estate I give
as follows: A. One half in fee simple absolute to my daughter,
Ms. Verdonda Coleman. B. One half divided equally between [my] daughter, Shirleeta Coleman, and my son Melvin Coleman."
Katie Coleman died in 1992. Shirleeta died intestate in 1994,
unmarried and without any children. Leroy Coleman, Shirleeta’s
father, was her sole heir at law. Verdonda and Melvin Coleman
filed a petition seeking a determination of the ownership of the
remainder interest devised to Shirleeta.

The trial court determined that Shirleeta’s interest in the
residuary estate was a contingent remainder which lapsed at her
death and passed to Melvin and Verdonda under Code
Sec.64.1-65.1. Shirleeta did not have a vested remainder in
her mother’s estate, according to the trial court, because
Shirleeta did not possess a "present capacity" to take
her residuary interest upon termination of the prior life estate.
"[T]he prior life estate could only terminate upon
Shirleeta’s death; therefore, she could never take her remainder
interest because in order for it to come into existence, she had
to die."

On appeal, Leroy Coleman asserts that the trial court’s
determination was in error because it ignores the early vesting
rule and is inconsistent with Allison v. Allison, 101 Va.
537, 44 S.E. 904 (1903). We agree and will reverse the decision
of the trial court.

The early vesting rule is a firmly established principle of
will construction in Virginia. It provides that unless the
intention to postpone vesting is clearly indicated in the will,
all devises and bequests are to be construed as vesting at the
testator’s death. Chapman v. Chapman, 90 Va. 409, 411, 18
S.E. 913, 913 (1894). Nothing in Katie Coleman’s will indicates
any intent to postpone vesting of the remainder interest in the
residuary estate. See Crews v. Hatcher, 91 Va. 378,
379, 382, 21 S.E. 811, 812 (1895)("At the death of my
[wife], I direct that the remaining portion of my estate shall be
equally divided" does not show intent to postpone vesting.)
Accordingly, applying the early vesting rule, Shirleeta’s
interest in the residue of her mother’s estate vested at the time
of her mother’s death.

This conclusion is also consistent with Allison, which
allowed a life tenant to also own a remainder in the testator’s
residuary estate. 101 Va. at 540-56, 44 S.E. at 904-10. In that
case, the testator left his daughter a life estate and, on her
death, the remainder was to be divided among her surviving
children. If there were no surviving children, the remainder was
to be divided among the testator’s "heirs at law." Id.
at 540, 44 S.E. at 904-05. Citing a number of English and
American cases, Allison held that the testator’s
"heirs at law" were to be determined at the time of the
testator’s death, not at the death of the life tenant. Id.
at 543-55, 44 S.E. at 906-10. Thus, the life tenant, an heir of
the testator at the time of his death, also had a remainder
interest in the residual estate which vested in her at the time
of the testator’s death, subject only to being divested in the
event her children survived her. Id. at 542, 556, 44 S.E.
at 905, 910. As in Allison, the life tenant here acquired
a remainder interest in the testator’s residual estate which
vested in her at the time of the testator’s death.

The trial court’s conclusion that a life tenant cannot also
own a vested remainder because the life tenant cannot have a
"present capacity" to take possession upon termination
of the life estate misapplied the distinction between vested and
contingent interests. A vested remainder is an estate in land
that presently exists in a definite person, but the actual
enjoyment of it is deferred until the termination of a previous
estate. The certainty or uncertainty of the right of
enjoyment, not the certainty of actual enjoyment
distinguishes vested and contingent interests. 1 Frederick Deane
Goodwin Ribble, Minor on Real Property Sec.709 (2d ed.
1928). In this case, the right of enjoyment of the residuary
estate vested at the testator’s death — only the actual
enjoyment of the right was deferred until the termination of the
life estate.

For these reasons, the judgment of the trial court is reversed
and final judgment will be entered declaring that Shirleeta’s
one-fourth interest in the residual estate of Katie Coleman
vested in her at her mother’s death and at Shirleeta’s death
passed to her sole heir, Leroy Coleman.

Reversed and final judgment.

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