Present: All the Justices
LEROY COLEMAN
v. Record No. 971833 OPINION BY JUSTICE ELIZABETH B. LACY
June 5, 1998
VERDONDA COLEMAN, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr., Judge
Katie Coleman executed a will in which she gave her
daughter Shirleeta a life estate in certain real property.
The will further provided that "[u]pon termination of said
life estate all the rest residue . . . of my estate I give as
follows: A. One half in fee simple absolute to my daughter,
Ms. Verdonda Coleman. B. One half divided equally between
[my] daughter, Shirleeta Coleman, and my son Melvin Coleman."
Katie Coleman died in 1992. Shirleeta died intestate in 1994,
unmarried and without any children. Leroy Coleman,
Shirleeta's father, was her sole heir at law. Verdonda and
Melvin Coleman filed a petition seeking a determination of the
ownership of the remainder interest devised to Shirleeta.
The trial court determined that Shirleeta's interest in
the residuary estate was a contingent remainder which lapsed
at her death and passed to Melvin and Verdonda under Code
§ 64.1-65.1. Shirleeta did not have a vested remainder in her
mother's estate, according to the trial court, because
Shirleeta did not possess a "present capacity" to take her
residuary interest upon termination of the prior life estate.
"[T]he prior life estate could only terminate upon Shirleeta's
death; therefore, she could never take her remainder interest
because in order for it to come into existence, she had to
die."
On appeal, Leroy Coleman asserts that the trial court's
determination was in error because it ignores the early
vesting rule and is inconsistent with Allison v. Allison, 101
Va. 537, 44 S.E. 904 (1903). We agree and will reverse the
decision of the trial court.
The early vesting rule is a firmly established principle
of will construction in Virginia. It provides that unless the
intention to postpone vesting is clearly indicated in the
will, all devises and bequests are to be construed as vesting
at the testator's death. Chapman v. Chapman, 90 Va. 409, 411,
18 S.E. 913, 913 (1894). Nothing in Katie Coleman's will
indicates any intent to postpone vesting of the remainder
interest in the residuary estate. See Crews v. Hatcher, 91
Va. 378, 379, 382, 21 S.E. 811, 812 (1895)("At the death of my
[wife], I direct that the remaining portion of my estate shall
be equally divided" does not show intent to postpone vesting.)
Accordingly, applying the early vesting rule, Shirleeta's
interest in the residue of her mother's estate vested at the
time of her mother's death.
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This conclusion is also consistent with Allison, which
allowed a life tenant to also own a remainder in the
testator's residuary estate. 101 Va. at 540-56, 44 S.E. at
904-10. In that case, the testator left his daughter a life
estate and, on her death, the remainder was to be divided
among her surviving children. If there were no surviving
children, the remainder was to be divided among the testator's
"heirs at law." Id. at 540, 44 S.E. at 904-05. Citing a
number of English and American cases, Allison held that the
testator's "heirs at law" were to be determined at the time of
the testator's death, not at the death of the life tenant.
Id. at 543-55, 44 S.E. at 906-10. Thus, the life tenant, an
heir of the testator at the time of his death, also had a
remainder interest in the residual estate which vested in her
at the time of the testator's death, subject only to being
divested in the event her children survived her. Id. at 542,
556, 44 S.E. at 905, 910. As in Allison, the life tenant here
acquired a remainder interest in the testator's residual
estate which vested in her at the time of the testator's
death.
The trial court's conclusion that a life tenant cannot
also own a vested remainder because the life tenant cannot
have a "present capacity" to take possession upon termination
of the life estate misapplied the distinction between vested
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and contingent interests. A vested remainder is an estate in
land that presently exists in a definite person, but the
actual enjoyment of it is deferred until the termination of a
previous estate. The certainty or uncertainty of the right of
enjoyment, not the certainty of actual enjoyment distinguishes
vested and contingent interests. 1 Frederick Deane Goodwin
Ribble, Minor on Real Property § 709 (2d ed. 1928). In this
case, the right of enjoyment of the residuary estate vested at
the testator's death -- only the actual enjoyment of the right
was deferred until the termination of the life estate.
For these reasons, the judgment of the trial court is
reversed and final judgment will be entered declaring that
Shirleeta's one-fourth interest in the residual estate of
Katie Coleman vested in her at her mother's death and at
Shirleeta's death passed to her sole heir, Leroy Coleman.
Reversed and final judgment.
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