Virginia Lawyers Weekly VA Lawyers Weekly
Although a will passed the testator’s residual estate to his surviving spouse, its substantial limitations on uses and transfer indicated that she inherited the residual assets as a life estate, not in fee simple.
Background
James E. Feeney III died in May 2012. He was married to Marjorie Feeney and had two sons from a prior marriage: Sean P. Feeney and James E. Feeney IV. Feeney’s will grants Marjorie all tangible personal property and awards certain cash gifts to James and Sean to be held in trust. The will also names Marjorie as executor and trustee.
The primary provision of the will at issue in this appeal is the residuary clause:
“I devise and bequeath all of such rest and residue of my Estate to MARJORIE, should she survive me. It is my intention that she use the assets of my estate to provide for her health and support, and to continue providing for the health, support and education of my son SEAN while he is a minor, and in matters past the age of 18 at her discretion; and that upon her death any remaining assets of this estate pass to him, IN TRUST, per stirpes. At no time and under no circumstances should any of my estate’s assets or personal property pass to or be used on behalf of DEBORA Y. FEENEY, BRIAN D. PATTERSON, CASEY T. PATTERSON, or JAMES P. PATTERSON unless expressly designated herein.
“Marjorie and I have agreed to keep our personal assets separate. We may use each other’s estate assets for our personal support and well-being as is normal and expected for a husband and wife to care for one another after their spouse has deceased. But the accounts are to be kept separate so that, at the time of our respective deaths, any assets remaining from my estate will be used for the care and welfare of my children and their descendants, and any assets of her remaining estate will be used for the care and welfare of her children and grandchildren.”
After the will was probated, James filed a complaint asking the circuit court to construe the residuary clause as granting Marjorie a life estate in the residual property. The circuit court concluded that “the language of the will is clear and that [the] intent of the testator was to devise and bequeath all of the rest and residue of the estate to [Marjorie].” The court “specifically [found] that a life estate was not created.”
Despite these adverse rulings, James and Sean moved for the circuit court to tax their attorneys’ and guardian ad litem fees against the estate on the ground that the meaning of the residuary clause required judicial instructions. The circuit court declined to do so.
James and Sean challenge these rulings on appeal.
Residuary estate
The residuary clause at issue states that it was Feeney’s intention that, upon Marjorie’s death, the residual estate’s assets should pass to Sean in trust. This intention is repeated later in the residuary clause, when Feeney explains that his and Marjorie’s accounts are to be kept separate so that, at the time of their respective deaths, any assets remaining from his estate will be used for the care and welfare of his children. These phrases signify a desire to restrict Marjorie’s interest in the residual estate and, as this court has previously held, can be fully equivalent to the words “for life.”
Moreover, the residuary clause explicitly states that it is Feeney’s intention that Marjorie use the assets of the residual estate to provide for her health and support and to continue providing for the health, support, and education of Sean. The word “use,” in this context, implies only the right to use and enjoy the benefit of property conveyed. And in this case, the right to use it is granted only for the expressly stated purposes. These limitations, taken as a whole, manifestly demonstrate Feeney’s intention to restrict Marjorie’s interest in the residual property. He intended that she use it for the purposes described in the will during her life, and then for the property to pass to Sean, in trust. While the residuary clause at no point explicitly grants the residual estate to Marjorie “for life,” it nevertheless creates a life estate by implication, impaired to the extent of the limitations expressed therein. Any other construction would render most of its language meaningless.
Seeking to avoid the import of the above language, Marjorie points to the interpretation in Trustees of Duncan Memorial Methodist Church v. Ray, 195 Va. 803 (1954), in which this court found that similar reference to “any remaining assets” created a fee simple. But it often happens that, because of the court’s focus on the testator’s intentions, the same words require very different constructions in different cases, according to the context and the peculiar circumstances of each case.
Here, along with directing the disposition of the residual property following Marjorie’s death, the residuary clause in this case limits Marjorie’s use of the property during her life and also restricts assets from passing to Debora Feeney or members of the Patterson family. These limitations on Marjorie’s ability to use the estate are irreconcilable with an absolute power of disposition. Phrases such as “any remaining assets” are not talismanic words that automatically grant the first taker such power. As always, a testator’s intent must be determined from the will as a whole, examining each phrase in context. Doing so here indicates that the residuary clause grants Marjorie a life estate by implication in the residual property, impaired to the extent of the limitations expressed therein.
Judicial instructions
This court has not explicitly recognized the doctrine of judicial instructions and need not do so today. Even if the doctrine exists, an ambiguity in the provisions of the instrument necessitating litigation is a condition precedent for its application. Throughout this litigation, James and Sean have consistently maintained that the will’s language is clear and unambiguous. Thus, even if the doctrine of judicial instructions exists in the Commonwealth, it does not apply under the circumstances of this case.
Affirmed in part, reversed in part, and remanded.
Feeney v. Feeney, Record Nos. 170031 and 170032, Apr. 12, 2018. SCV (Mims), from Loudoun Cir. Ct. (Irby). VLW No. 018-6-029, 9 pp.
