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PICKETT v. SPAIN (59917)


June 6, 1997
Record No. 961958





J. Warren Stephens, Judge Designate
Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, and
Koontz, JJ., and Whiting, Senior Justice

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,
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