Gaymon v. Gaymon

Present: All the Justices

WILLIAM V. GAYMON, EXECUTOR OF THE
ESTATE OF WILLIAM E. GAYMON

v. Record No. 982483 OPINION BY JUSTICE ELIZABETH B. LACY
September 17, 1999
VIOLETA N. GAYMON, ET AL.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Arthur B. Vieregg, Jr., Judge

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, Reston,
Virginia.

. . .

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 foreclosure action.

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,

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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.

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 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.

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 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.

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 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

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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

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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 Violeta Gaymon.

II. Liability of Remainder Persons

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

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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

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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

principal.

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

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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

*
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.
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"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 property.

III. Disposition

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

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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 remanded.

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