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GAYMON, et al.
September 17, 1999
Record No. 982483
WILLIAM V. GAYMON, EXECUTOR OF THE ESTATE OF
WILLIAM E. GAYMON
VIOLETA N. GAYMON, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY
William V. Gaymon, Executor of the estate of
his father, William E. Gaymon, appeals from a judgment of the
trial court construing language in the decedent’s will. For the
following reasons, we conclude that in construing the will, the
trial court correctly held that the testator created a life
estate in favor of the testator’s widow in certain real property,
but erred in its conclusion that the language in the will showed
an intent by the testator to make the remainder persons
personally liable for the interest as well as the principal due
under the two deeds of trust on the property.
The testator was survived by Violeta N. Gaymon,
his widow, and two adult children from his former marriage,
William Victor Gaymon and Nicole G. Gaymon (the Gaymon children).
The Fifth Article (Article 5) of testator’s will provides:
FIFTH. I give and bequeath to my
children, WILLIAM V. GAYMON and NICOLE G. GAYMON, share
and share alike, the following described property,
subject to any encumbrances upon the same upon the date
of transfer and the mortgage remaining shall be paid
by the remainder persons:
a. My residence, together with
improvements thereon, located at 2619 Fox Mill Road,
. . .
It is understood that in the case that
Mrs. VIOLETA N. GAYMON and I have residence at the Fox
Mill address at the time of my demise, she would have a
life estate in the same for the remainder of her life.
The language in Article 5 that is italicized
above was a handwritten addition initialed by the testator.
After the testator’s death, William V. Gaymon
made the payments due under the two deeds of trust on the Fox
Mill residence (the property) for about eight months, although it
is disputed whether he made those payments in his capacity as an
executor. After William V. Gaymon decided not to make any
additional payments, Violeta began making the payments to avoid a
Acting as the Executor, William V. Gaymon filed
a bill of complaint in the trial court, seeking aid and direction
in the administration of the testator’s estate. In his amended
bill of complaint, the Executor asked the chancellor to
determine, among other things, whether Article 5 created a
"mandatory or precatory life estate" in favor of
Violeta in the property. The Executor also asked the chancellor
to declare that, under the terms of the will, Violeta is
obligated to pay expenses on the property, including interest on
the deed of trust notes, taxes, and insurance. The Executor
further requested that the chancellor order Violeta to reimburse
the estate "for any payments made by the Estate on account
of the Residence except for principal payments on the deed of
trust notes." Violeta filed an answer and cross-bill asking
the chancellor to determine that, under the terms of the will,
the remainder persons are liable for the entire mortgage payments
and asking that she be reimbursed for all payments she made on
the notes secured by the deeds of trust.
The chancellor heard evidence of the
circumstances surrounding the testator’s execution of the will
but later ruled that the testator’s intent could be ascertained
from the four corners of the will, and that extrinsic evidence
was thus inadmissible except for the limited purpose of
determining the meaning of the term "mortgage," as used
in the handwritten addition to Article 5.
After considering the language within the four
corners of the will, the chancellor concluded that the testator
intended to "will a life estate to his wife and that by
bequeathing the property to his children, he was bequeathing it
subject to that life estate . . . ." In the
final decree, the chancellor held that Violeta was entitled to a
life estate in the property.
The chancellor next concluded that, by adding
the handwritten language, "[a]nd the mortgage remaining
shall be paid by the remainder persons," the testator
avoided the common law rule requiring a life tenant to pay the
interest due on a mortgage during the term of the life tenancy.
Thus, the chancellor ruled that the interlined language
unambiguously expressed the testator’s intention that the
remainder persons pay all the mortgage expenses for the property.
In the final decree, the chancellor held that the Gaymon children
are required to pay "all sums due under the two Deeds of
Trust on the Residence, including principal and interest, from
the date of transfer, to wit: Testator’s death on June 3, 1997,
until paid in full." The chancellor further held that the
Gaymon children’s interest in the property "will be subject
to a lien for all amounts paid by VIOLETA N. GAYMON on said Deeds
of Trust since June 3, 1997 and thereafter."
The Executor appealed, asserting that the
chancellor erred in holding that the will created a life estate
in the property in favor of Violeta, and that the chancellor
erred in holding that the Gaymon children were personally liable
for the interest accruing on the notes secured by the deeds of
trust on the property. The Executor did not assert at trial or on
appeal that Violeta was liable for the principal of the notes
secured by the deed of trust.
The legal principles applicable to the
construction of a will are well established. The objective in
construing a will is to determine the testator’s intent by
initially looking to the four corners of the document. Extrinsic
evidence may be considered only if the language of the will is
ambiguous, that is, susceptible to more than one interpretation. Gillespie
v. Davis, 242 Va. 300, 303-04, 410 S.E.2d 613, 615 (1991).
I. Life Estate
The threshold issue is whether the chancellor
erred in determining that Article 5 of the will gave Violeta a
life estate in the property. The Executor argues that the phrase
"It is understood" contained in Article 5 reflects the
testator’s request or desire that Violeta be allowed to remain on
the property but does not give her the right to do so. In support
of this position, the Executor relies on Carson v. Simmons,
198 Va. 854, 856, 96 S.E.2d 800, 802 (1957), in which the phrase
"with the understanding" was determined to be precatory
rather than mandatory, thereby defeating a claim that a
spendthrift trust was created. However, although the phrases in Carson
and in this case are similar, the context in which they appear is
quite different. Thus, applying the principles discussed in Carson
to this case does not lead to the same result.
The will in Carson gave the testator’s
daughters an apartment building "with the understanding
that" the daughters would rent out one of the apartments and
use the rental income for the upkeep of the property until the
youngest grandchild reached 16 years of age. The Court concluded
that this phrase was precatory because it directed the legatees
to perform some act, rather than directing actions of the
executor. The Court reached this conclusion even though the use
of the same phrase in a subsequent paragraph of the will was
mandatory. Id. at 858-59, 96 S.E.2d at 804.
In this case, however, reading the phrase
"it is understood," within the context of Article 5
leads to only one interpretation, that the testator intended to
create a life estate. As noted by the chancellor, Article 5
refers to the Gaymon children as "remainder persons."
That reference is consistent only with the conclusion that a life
estate was created in the property because, without such an
estate, the Gaymon children would have a fee simple interest, not
a remainder interest. And, unlike the direction in Carson,
Article 5 gives no direction to the Gaymon children, but only
declares the interest created. The only contingency attached to
the interest given Violeta was that she and the testator be
living at the property at the time of the testator’s death. There
is nothing in the will which supports a conclusion that the
Gaymon children, the remainder persons, had the discretion to
determine whether Violeta Gaymon could remain on the property
during her lifetime.
The Executor also relies on the rule of
construction recited in Smith v. Baptist Orphanage, 194
Va. 901, 75 S.E.2d 491 (1953), and McKinsey v. Cullingsworth,
175 Va. 411, 9 S.E.2d 315 (1940), that when an estate is conveyed
in one part of an instrument by clear and unambiguous words, only
words of equal clarity and decisiveness can diminish or destroy
that estate. According to the Executor, the phrase "it is
understood" is too imprecise to effectively diminish the fee
simple estate granted the Gaymon children in the property by
Article 5 of the will. We disagree.
No specific words are required to create a life
estate. Robinson v. Caldwell, 200 Va. 353, 356-57, 105
S.E.2d 852, 854 (1958). Nevertheless, the language of Article 5
– "a life estate in the [property] for the remainder of
her life" – is not a vague or general description of
the interest conveyed. Rather, this is the formal, technical
language associated with the creation of a life estate.
Furthermore, in both the cases upon which the Executor relies,
the Court was required to consider whether certain phrases
allegedly describing the interests at issue were mandatory or
precatory and, in both cases, we concluded that the phrases only
indicated a desire of the testator and thus were not mandatory.
Obviously, if a phrase in a will is precatory and creates no
interest, it cannot be of equal dignity with words creating an
interest. In this case, as we have already said, the language of
Article 5 is not precatory. Therefore, the rule of construction
cited by the Executor does not defeat the intent of the testator
as expressed in Article 5 under the circumstances of this case.
For these reasons, we conclude that there is no
error in the chancellor’s conclusion that the language of Article
5 unambiguously creates a life estate in the property in favor of
II. Liability of Remainder
In addition to determining the testator’s
intent regarding Violeta’s interest in the Fox Mill property, the
chancellor was asked to determine the testator’s intent in adding
the phrase "and the mortgage remaining shall be paid by the
remainder persons" to Article 5. In resolving this issue,
the chancellor again concluded that the testator’s intent could
be determined from the four corners of the document, with the
exception of the meaning of the word "mortgage." After
taking evidence on that issue, the chancellor concluded that the
term "mortgage" included the two deeds of trust on the
Fox Mill property securing personal debts of the testator. The
chancellor then apparently determined that the testator would not
have added the interlined language unless it had a meaning
independent of the instructions already contained in the will.
That independent meaning, the chancellor concluded, was that the
added language negated the common law obligation of a life tenant
to preserve the estate for the remainder persons, including the
obligation to pay interest due on encumbrances on the property,
and that the added language placed the obligation to pay interest
on the remainder persons.
Although we agree with the chancellor that
extrinsic evidence was not necessary to determine the testator’s
intent in adding the language directing the remainder persons to
pay the mortgages, we disagree with the chancellor’s ultimate
interpretation of the added language. Apparently, the chancellor
concluded that the testator used the word "mortgage" to
mean both the principal and interest due on the deeds of trust.
By using that word, the chancellor concluded, the testator
intended the remainder persons to pay both principal and
interest, thus altering the common law principle that a life
tenant must pay the interest on any encumbrance on the devised
life estate property. Livesay v. Boyd, 164 Va. 528,
532-33, 180 S.E. 158, 159-60 (1935).
However, there is nothing in the word
"mortgage" itself that indicates inclusion or exclusion
of interest due on the encumbrance, and there is no other
language in the added phrase or elsewhere in the will that
addresses the treatment of interest. Therefore, in the absence of
more precise direction, we cannot conclude that by using the word
"mortgage," the testator intended to deviate from the
well-established common law principle regarding the obligation of
a life tenant.
Having determined that the interlined language
does not support the chancellor’s interpretation of the
testator’s intent, we conclude nevertheless that the added
language had a meaning independent of other instructions in the
will. That language shows the testator’s intent to make the
remainder persons personally liable for payment of the mortgage
The general rule in this Commonwealth is that
if property encumbered with a lien is devised in a will, and the
lien secures a personal debt of the testator, the decedent’s personal
estate, not the encumbered property, is the primary fund for
discharge of that debt. Brown, Adm’r v. Hargraves, 198 Va.
748, 750, 96 S.E.2d 788, 790 (1957); French v. Vradenburg’s
Ex’rs, et. al, 105 Va. 16, 18, 52 S.E. 695, 695 (1906); Elliot
v. Carter, 50 Va. (9 Gratt.) 541, 549 (1853). Operation of
this rule can be altered by the testator if he directs in his
will that the encumbered property be the primary source of his
estate for satisfaction of the lien. Id.
To determine the priority of the property in
the testator’s estate for satisfaction of such liens, the
language of the will is reviewed to ascertain the intent of the
testator, as in all cases of will construction. In this case, by
devising the property "subject to any encumbrances,"
the testator indicated his intent that the encumbered property,
not his personal estate, be the primary source of his estate for
payment of the deeds of trust.*
However, while devising the property subject to
the deeds of trust changed the order in which the component parts
of the decedent’s estate were to be looked to for satisfaction of
his debts, it did not go so far as to make the remainder persons
personally liable for the debts secured by the deeds of trust.
Personal liability was imposed when the testator added the
language directing that the mortgages "shall be paid by the
remainder persons." This added language imposed a condition
on the disposition of the testator’s estate, that the remainder
persons would assume personal liability for the debt secured by
the deeds of trust. This condition has meaning and effect
independent of the direction devising the property "subject
to any encumbrances" and unrelated to the common law
apportionment of the obligations of life tenants and remainder
persons to make mortgage payments.
Thus, we conclude that the testator’s intent in
adding the interlined phrase was to make the remainder persons
personally liable for the debts secured by the deeds of trust,
but not to negate the common law principle that the life tenant
has the obligation to preserve the property, including among
other things the duty to pay the interest on any liens on the
We now turn to the appropriate relief in light
of the foregoing conclusions. First, we will affirm the
chancellor’s conclusion that Article 5 of the will created a life
estate in Violeta Gaymon in the property.
Turning to the liability of the remainder
persons, we note that the Executor argues, citing Hill
v. Huston’s Ex’r, 57 Va. (15 Gratt.) 350 (1859), that the
remainder persons cannot be charged with personal liability for
the deeds of trust unless they accept the devise. However, our
role in this case is to interpret the will, not to determine
whether the remainder persons have accepted or disclaimed the
devise. Additionally, the remainder persons are not parties to
this action. Furthermore, the Executor limits his request
for relief to reversing "that portion of the trial court’s
order putting a charge on the real estate and holding the
remaindermen personally liable for interest on the mortgage and
any other expenses." Under these circumstances, we need not
decide if the devise has been accepted by the remainder persons.
Therefore, we will reverse that portion of the
chancellor’s order holding that Article 5 of the will imposed
liability on the remainder persons for the interest due on the
deeds of trust on the property and that "the remainder
interest" on the property "will be subject to a lien
for all amounts" paid by the life tenant, Violeta Gaymon, on
the notes secured by the deeds of trust.
Finally, we will remand the case to the
chancellor for allocation of liability for past payments in
accordance with the principles set out in this opinion.
Affirmed in part, reversed in part, and
* Of course, if the property were
sold to satisfy the liens but proceeds were insufficient, the
unpaid balance could be satisfied out of the personal estate.