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O'BRIEN v. O'BRIEN, et al.



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O’BRIEN

v.

O’BRIEN, et al.


March 3, 2000

Record No. 990710

WARREN B. O’BRIEN, EXECUTOR UNDER THE WILL OF
FRANCES C. O’BRIEN, AND INDIVIDUALLY

v.

JONATHAN A. O’BRIEN, ET AL.

FROM THE CIRCUIT COURT OF FLUVANNA COUNTY

F. Ward Harkrader, Jr., Judge

PRESENT: Carrico, C.J., Compton,[1] Lacy, Hassell, Koontz, and Kinser, JJ., and Stephenson,
Senior Justice

OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON,
JR.


In this appeal, we decide whether a provision
in a will converted a legatee’s debt into an advancement. We also
review the trial court’s rulings regarding the payment of
attorneys’ fees.

I

Jonathan A. O’Brien and David S. O’Brien, as
two of the executors of the will of Frances C. O’Brien and also
in their individual capacities (the Complainants), filed a bill
of complaint against Warren B. O’Brien, as an executor under the
will and in his individual capacity. The Complainants sought to
recover a judgment against their brother on a note he had
executed in favor of the testator, who was their mother, in the
amount of $459,141.30, plus interest, attorneys’ fees, and costs.
The Complainants asked the trial court to determine, "under
the proper construction of the [w]ill," that Warren was
indebted to the estate in the amount evidenced by the note.
[2]

In his answer and cross-bill, Warren asserted
that the Complainants had exceeded their authority as executors
by filing suit against him. Warren further asserted that the will
instructed the co-executors to convert his debt into an
advancement, thereby discharging his debt. Additionally, Warren
requested the court to rule that the Complainants’ legal fees
should be paid by them personally and not by the estate and that
his own attorney’s fees should be reimbursed to him out of the
estate.

The trial court concluded that "the will
speaks clearly" regarding the testator’s intent, and,
therefore, extrinsic evidence would not be considered.
[3] The trial court then rejected Warren’s contentions and
granted the Complainants’ judgment on the note. The court also
ruled that the Complainants’ attorneys’ fees should be paid by
the estate and that Warren was personally responsible for his own
attorney’s fees. Warren appeals.

II

Frances C. O’Brien died testate on August 9,
1995, and her three sons were named co-executors of her will.
Through the years, Frances had made loans and gifts to each of
her sons.
[4] At the time of his
mother’s death, Warren owed her $459,141.30. This debt was
evidenced by a promissory note, dated March 31, 1995, and was the
last in a series of notes that Warren had executed over a period
of 12 years (the Final Note).

In Article I, Paragraphs D and F of her will,
Frances left virtually all of her tangible personal property and
all of the residue of her estate to her three sons in equal
shares. Article I, Paragraph G of the will, the provision at
issue in this appeal, provides the following:

Notwithstanding any provision contained herein
to the contrary, any bequest or legacy made under this Last Will
and Testament to any of my children, or to their issue by
representation, shall be proportionately reduced by any amounts
which I have advanced to such child prior to my death, whether or
not said amount has been documented by note or other similar
document, and the amount of said advance shall be increased by
the proportionate amount by which the consumer price index for
Washington, D.C., average for all items for urban wage earners
and clerical workers, issued by the Bureau of Labor and
Statistics of the United States Department of Labor, has
increased from the date of said advance to said child to the date
of my death, averaged for any repayments made on such advance. It
is the intent of this provision that each of my children shall
inherit a proportionately fair share of my estate, taking into
consideration the amounts which I have advanced to any or all of
my children, and the resulting loss of use of those funds which I
have had during the period of time of said advance.

III

We have held that a loan may be converted into
an advancement by a provision in a will. In Darne v. Lloyd,
82 Va. 859, 862, 5 S.E. 87, 88 (1887), we said that "[a] testator can dispose of his estate by will just as effectually as
he could by gift during his life, and[,] if he pleases, turn a
loan into an advancement, or, to speak more accurately, require
that it may be treated as an advancement."

When a will requires that an advancement be
deducted from a legacy, the donee of the advancement is not
required to refund or surrender the excess of the advancement
over the legacy. Instead, the donee loses his legacy, but retains
the advancement. See McCoy v. McCoy, 105 Va.
829, 841, 54 S.E. 995, 999 (1906) (child receiving advancement
from parent can only be excluded from participation in
distribution of intestate estate and cannot be required to pay to
estate any part of advancement).

IV

In the present case, we determine whether
Frances intended to convert the Final Note into an advancement.
The trial court held that this was not Frances’ intent,
concluding that she intended "to make an equal distribution
of her estate." In reaching this conclusion, the court
relied upon, and found to be "determinative," the
second sentence in Article I, Paragraph G, which reads as
follows:

It is the intent of this provision that each of
my children shall inherit a proportionately fair share of my
estate, taking into consideration the amounts which I have
advanced to any or all of my children, and the resulting loss of
use of those funds which I have had during the period of time of
said advance.

The trial court, however, did not address the
language in the first sentence of Article I, Paragraph G, and,
effectively, rendered that sentence meaningless. The first
sentence, in pertinent part, reads as follows:

Notwithstanding any provision contained herein
to the contrary, any bequest or legacy made under this Last Will
and Testament to any of my children . . . shall be
proportionately reduced by any amounts which I have advanced to
such child prior to my death, whether or not said amount has been
documented by note or other similar document.

Frances, in the first sentence of Article I,
Paragraph G, directs, in clear and unambiguous language, that any
legacy to a child shall be proportionately reduced by any amounts
she had "advanced" to such child prior to her death,
whether or not the amounts are documented by note or similar
document. Giving this language its plain meaning, we hold that
Warren’s debt, evidenced by the Final Note, was converted into an
advancement.

In the second sentence of Article I, Paragraph
G, Frances did not state that she intended for each of her
children to have an equal share of her estate; rather, she
intended that each child receive a "proportionately fair
share" of her estate. The terms "equal" and
"fair" are not necessarily synonymous, and, in any
event, the second sentence is an expression of general intent and
is controlled by the more specific directives of the first
sentence. See 2 Harrison on Wills and Administration
? 263(3) (3rd ed. 1986).

V

Regarding the issue of the payment of
attorneys’ fees, Warren contends that the Complainants exceeded
their authority as executors by filing suit against him.
Therefore, according to Warren, the Complainants were not
entitled to have their attorneys’ fees paid by the estate, and
the trial court erred in ruling to the contrary. We do not agree.

Personal representatives of an estate are
obligated to collect the assets of the estate, which includes a
duty to reduce the estate’s claims to judgments. Isbell v.
Flippen, 185 Va. 977, 981, 41 S.E.2d 31, 33 (1947).
Additionally, it cannot be denied that, when provisions in a will
may be susceptible of differing interpretations, it is prudent
and proper for the personal representatives to seek the aid and
guidance of a court to obtain the correct interpretation.

In the present case, Warren was indebted to the
estate, unless the will converted the debt into an advancement.
This presented a question of law, which properly required a court
decision. Therefore, we hold that the Complainants did not exceed
their authority in instituting the suit against Warren. Thus, it
follows that it was reasonably necessary for the Complainants to
engage counsel to represent them in the suit, and, therefore,
they are entitled to have their reasonable attorneys’ fees paid
by the estate.

We further hold that Warren, on the other hand,
is not entitled to have his attorney’s fees paid by the estate.
The trial court correctly denied Warren’s request because
Warren’s attorney’s fees were incurred for his personal benefit
and not to benefit the estate or to aid him in his duties as an
executor.

VI

In sum, we hold the following:

1. The testator, by Article I, Paragraph G of
her will, converted the loan to Warren into an advancement.

2. If Warren’s legacy exceeds the amount of the
advancement, he shall be entitled to the excess; if, however, the
advancement exceeds the amount of his legacy, Warren is not
required to pay the excess.

3. The Complainants are entitled to have their
reasonable attorneys’ fees paid by the estate.

4. Warren is not entitled to have his
attorney’s fees paid by the estate.

Accordingly, the trial court’s judgment will be
affirmed in part and reversed in part, and the case will be
remanded to the trial court for further proceedings consistent
with this opinion.

Affirmed in part, reversed in part, and
remanded.

 

 

 

FOOTNOTES:

[1] Justice Compton participated in the hearing and
decision of this case prior to the effective date of his
retirement on February 2, 2000.

[2] Originally, the Complainants had
filed an action at law against Warren to recover a judgment on
the note. However, when Warren raised defenses involving the
interpretation of the will, the trial court transferred the case
to the chancery side of the court. The Complainants then filed
this bill of complaint in lieu of their motion for judgment.

[3] Neither party has assigned error
to this ruling of the trial court. We agree that the language of
the will is clear and unambiguous; therefore, we will look to the
four corners of the will to determine the testator’s intent. Gaymon
v. Gaymon, 258 Va. 225, 230, 519 S.E.2d 142, 144-45
(1999).

[4] David paid off his loans in the
mid-1980′s. Jonathan had paid his loans down to $67,106.20 at the
time of his mother’s death, and he paid his outstanding debt by
foregoing his share of the tangible personal property of his
mother’s estate, valued at $68,926.66.

 

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