Jimenez v. Corr

Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and
Powell, JJ., and Lacy, S.J.

NANCY C. JIMENEZ
OPINION BY
v. Record No. 140112 JUSTICE LEROY F. MILLETTE, JR.
October 31, 2014
LEWIS S. CORR, JR.,
INDIVIDUALLY, AND AS EXECUTOR
OF THE ESTATE OF NORMA F. CORR
AND TRUSTEE OF THE NORMA F. CORR
REVOCABLE TRUST, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge

In this appeal we consider whether shares of stock, which

would otherwise be conveyed to an inter vivos trust by way of a

pour-over provision set forth in a shareholder's will, must

instead be bequeathed in a manner set forth in a shareholders'

agreement entered into by that shareholder several years after

executing her estate planning documents.

I. Facts and Proceedings

This appeal arises from a dispute over the disposition of

shares of stock in a family held business after the death of

that business's founding generation. Six people are central to

this dispute as it comes to us on appeal. Lewis S. Corr, Sr.

("Mr. Corr") and Norma F. Corr were married prior to their

deaths. Mr. Corr and Norma had three children: Lewis S. Corr,

Jr. ("Lewis"), Patricia Corr Williams, and Nancy Corr Jimenez.

Patricia is married to Thomas M. Williams.
 Mr. Corr established Capitol Foundry of Virginia ("Capitol

Foundry" or "Company") in 1970 as a broker and reseller of

castings of heavy infrastructure. Capitol Foundry was

incorporated in 1976 with Mr. Corr initially as the sole

shareholder. Lewis joined the business when it incorporated

and later, in 1981, Mr. Corr allowed Lewis to purchase 5 newly

issued shares of Capitol Foundry stock. That same year, Nancy

joined the business.

In 1999, Mr. Corr passed away, and all of his outstanding

shares in Capitol Foundry were transferred outright to his wife

Norma. In 2002, Norma conveyed 5 of her shares to Nancy. At

the time of Norma's death in 2012, Norma owned 95 shares of

Capitol Foundry stock, Lewis owned 5 shares of Capitol Foundry

stock, and Nancy owned the remaining 5 shares of Capitol

Foundry stock.

After Norma's death, Nancy filed suit in the Circuit Court

of the City of Virginia Beach against Lewis, the executors of

Norma's estate, and Capitol Foundry. Nancy alleged that Norma,

Lewis, and Nancy entered into an agreement (the "Shareholders'

Agreement") which required Norma's executors to make Norma's 95

shares of Capitol Foundry stock available for purchase by

Capitol Foundry, and required Capitol Foundry to purchase those

shares.

2
 The defendants countered that Norma's estate planning

documents, and not the Shareholders' Agreement, controlled

disposition of Norma's 95 shares of Capitol Foundry stock.

Therefore, in accordance with the estate planning documents,

those shares were to go into an inter vivos trust rather than

being subject to purchase under the Shareholders' Agreement.

Nancy then amended her complaint. In her amended

pleading, Nancy sought (1) declaratory judgment relief in the

form of the court declaring that the Shareholders' Agreement,

and not Norma's estate planning documents, governed disposition

of Norma's shares of Capitol Foundry stock, and (2) specific

performance relief in the form of Norma's executors making her

95 shares of Capitol Foundry stock available for purchase by

Nancy and Capitol Foundry.

While this litigation was ongoing, the parties entered

into an agreement that permitted Capitol Foundry to purchase

64.4 shares of Norma's Capitol Foundry stock so that Norma's

estate would obtain tax benefits under Internal Revenue Code

§ 303 (the "Stock Redemption Agreement"). The disposition of

Norma's remaining 30.6 shares of Capitol Foundry stock remained

at issue subsequent to this purchase.

After a two day trial, the circuit court entered a final

order in this matter. The circuit court held that the relevant

portions of the Shareholders' Agreement were not applicable to

3
Norma's shares of Capitol Foundry stock, and therefore those

shares were to pass to the inter vivos trust established by

Norma's estate planning documents. Moreover, because those

estate planning documents permitted Lewis to exercise an

exclusive option to purchase all Capitol Foundry stock which

passed into the inter vivos trust, Lewis properly exercised

such an option when he executed and delivered the document

called for under the terms of Norma's estate planning documents

(the "Exercise of Option").

Nancy timely filed a petition for appeal with this Court.

We granted eight assignments of error and one assignment of

cross-error. These assignments and cross assignment direct us

to address two issues:

1. How do Norma's estate planning documents and the
Shareholders' Agreement operate to dispose of Norma's
shares of Capitol Foundry stock upon her death?

2. Did the parties sufficiently plead the issue of
whether Lewis effectively exercised his exclusive
option to purchase Capitol Foundry stock held in the
inter vivos trust, so as to allow the circuit court to
rule on that issue?

In light of our determination of how the various documents

operate, which resolves this appeal, we do not reach this

second issue. Gardner v. Commonwealth, __ Va. __, __ n.3, 758

S.E.2d 540, 542 n.3 (2014).

4
 II. Discussion

A. Standard of Review

We review de novo the circuit court's determination of

"the legal effect of [the] written document[s]" pertinent to

this appeal. Jones v. Brandt, 274 Va. 131, 135, 645 S.E.2d

312, 314 (2007).

B. Norma's Estate Planning Documents

When construing a particular legal instrument, if other

documents were "executed at the same time or contemporaneously

between the same parties, in reference to the same subject

matter" as the legal instrument, then all such documents "must

be regarded as parts of one transaction, and receive the same

construction as if their several provisions were in one and the

same instrument." Bailey v. Town of Saltville, 279 Va. 627,

633, 691 S.E.2d 491, 493 (2010) (internal quotation marks and

citation omitted). Norma's Last Will and Testament ("Norma's

Will") and the Norma F. Corr Revocable Trust document (the

"Trust Document") were both executed on July 17, 1992, were

both executed by Norma, and reference one another. We

therefore consider these two documents together "as parts of

one transaction." Id.

1. Norma's Last Will and Testament

Norma's Will nominated and appointed Lewis and Joseph L.

Lyle, Jr. as co-executors of the will, and named Thomas as co-

5
executor in the event that Joseph became unwilling or unable to

serve as executor. The parties agree that, at the time of

Norma's death, Lewis and Thomas were co-executors.

Norma's Will contains numerous specific bequests and

devises. Article VII of the Will governs disposition of the

residue of Norma's estate:

All the rest, residue, and remainder of my
property of every kind and description, and wherever
located, including any lapsed or void legacy or
devise, after satisfying all the bequests and devises
hereinabove set out and after the payment or provision
for payment of all administrative expenses and all
death taxes as hereinabove directed, I give, devise,
and bequeath to the Trustee of a trust agreement
between me as Grantor and as Trustee dated July 17,
1992, which is now in existence, to be held,
administered, and distributed in accordance with its
terms.

In the event any such property given, devised or
bequeathed to the Trustee of such trust agreement is,
under the terms of such trust agreement, to be
distributed immediately to any beneficiary thereof,
outright and free of trust, then such property may be
transferred directly to such beneficiary by my
Executor, without the necessity of passing through
such trust.

Article VII is a pour-over provision. "[S]ituations in

which the testator devises or bequeaths property according to

the terms of an inter vivos trust that is in existence and

properly referred to at the time the will is executed[,] but

which is subject to a reserved power of amendment in the

settlor of the trust[,] are most frequently referred to as

pour-over provisions." 2 William J. Bowe & Douglas H. Parker,

6
Page on the Law of Wills § 19.27, at 60-61 (2003). Article VII

operates to gather up the entirety of what remained of Norma's

estate after all debts, bequests, and devises had been settled,

and "pours over" that residuary estate into a trust which was

already existing and created by Norma.

One exception to this pour-over provision is supplied by

the terms of Article VII. This exception allows for property

to go directly to a beneficiary of the trust, without first

passing through the trust, if that beneficiary would

immediately receive such property under the terms of the Trust

Document. We will return to this exception later in order to

explain its relevance to the parties' arguments on appeal.

2. The Norma F. Corr Revocable Trust Document

The trust into which Norma's residuary estate was poured

was created by the Trust Document and was titled "Trust A."

The Trust Document named Lewis and Joseph L. Lyle, Jr. as

successor co-trustees in the event that Norma became unable to

serve as trustee, and named Thomas as a successor co-trustee in

the event that Joseph became unwilling or unable to serve as

trustee. The parties agree that, at the time of Norma's death,

Lewis and Thomas were co-trustees.

Because Norma's husband predeceased her, Article IV,

Sections (B)(3) through (B)(6) of the Trust Document governed

disposition of the trust's assets. Sections (B)(4) and (B)(5)

7
of Article IV are not relevant to this appeal, and we need only

review Sections (B)(3) and (B)(6).

Article IV, Section (B)(3) of the Trust Document provides:

3. To the extent not appointed by [Norma's] husband,
upon the death of [Norma's] husband, the then
remaining trust assets, if any, shall be divided, per
stirpes, into equal shares, one share for each child
of [Norma] then living and one share for each child of
[Norma] then deceased with surviving issue.

Each living child of [Norma] shall then be entitled to
request and receive, outright and free of trust, his
or her entire share. Prior to final distribution, the
Trustee shall pay to or apply for the benefit of each
of [Norma's] living children the entire income of his
or her respective share and so much of the principal
as the Trustee deems appropriate for his or her
support, maintenance, education (including college and
graduate school), and medical care. 1

Section (B)(3) provides that any property poured over into

Trust A shall be divided per stirpes 2 among the total number of

Norma's living children or, if deceased, Norma's children who

had living issue at the time of the per stirpes division.

Norma had three children, all living, when Norma's residuary

estate poured over into Trust A and became subject to the per

1
In this opinion, paragraph breaks have been added to some
quotations from the operative documents.
2
"Per stirpes means proportionately divided between
beneficiaries according to their deceased ancestor's share."
Sheppard v. Junes, 287 Va. 397, 406 n.4, 756 S.E.2d 409, 413
n.4 (2014) (internal quotation marks and alterations omitted).

8
stirpes division: Lewis, Nancy, and Patricia. Thus, any such

property would be divided equally into three shares.

Article IV, Section (B)(6) of the Trust Document provides

in relevant part:

Notwithstanding anything herein to the contrary, upon
the second to die of [Norma] and her husband,
[Norma's] son, Lewis S. Corr, Jr., is hereby granted
and given the exclusive right and option to
purchase[:]

(i) any or all shares of stock in Capitol Foundry of
Virginia, Inc., or any successor entity thereto, which
Trust A herein may own, and

(ii) any or all interests Trust A may own in [certain
real property].

. . . .

The option shall be exercised by written notice
delivered to the Trustee within ninety (90) days of
the date of the second to die of [Norma] and her
husband. If not exercised by such date, the option
shall then terminate and expire.

Within sixty (60) days of such exercise, at a mutually
acceptable date, time and place (the "Settlement
Date"), the Trustee shall convey such property so
elected to [Lewis] F. Corr, Jr. by stock certificate
. . . in exchange for a downpayment equal to all cash
or liquid assets distributable to him pursuant to the
terms of Trust A created herein and delivery of an
executed promissory note in form acceptable to the
Trustee for the balance of the purchase price, to be
paid in equal monthly payments of principal and
interest amortizing the balance of the purchase price
over ten years.

Section (B)(6) of the Trust Document provides that,

notwithstanding the per stirpes division of all property poured

over into Trust A by operation of Section (B)(3) of the Trust

9
Document, Lewis has an exclusive right and option to purchase

all shares of Capitol Foundry stock that Trust A might own. To

the extent shares of Capitol Foundry stock are owned by Trust

A, this would allow Lewis to purchase and acquire those shares

so that his siblings Nancy and Patricia, fellow beneficiaries

of Trust A, would not be able to acquire those shares through

the per stirpes distribution scheme set forth in

Section (B)(3). However, because Lewis's purchase of these

shares would put money back into Trust A, that money would be

subject to the per stirpes distribution. Thus, Nancy and

Patricia would ultimately receive the cash value of their

shares of Capitol Foundry stock held by Trust A, just not the

shares themselves.

3. Norma's Estate Planning Documents and Disposition of
Norma's Shares of Capitol Foundry Stock

It is important to set forth the distribution scheme of

Norma's shares of Capitol Foundry stock if only Norma's estate

planning documents governed this case.

The Trust Document does not provide what amount, if any,

of Norma's shares of Capitol Foundry stock pour over into

Trust A. That document merely provides that if such property

is owned by Trust A, it shall be subject to either a per

stirpes division by operation of Article IV, Section (B)(3), or

10
Lewis's exclusive purchase option by operation of Article IV,

Section (B)(6).

On the other hand, Article VII of Norma's Will provides

that her residuary estate shall pour over into Trust A. This

provision means that any shares of Capitol Foundry stock that

Norma owned upon her death, not subject to debts, specific

bequests, or devises, and therefore forming part of Norma's

residuary estate, pour over into Trust A. See Spinks v. Rice,

187 Va. 730, 740, 47 S.E.2d 424, 428 (1948) ("The essential

characteristic of a will is, that it operates only upon and by

reason of the death of the maker." (internal quotation marks

omitted)).

Reading these two documents together, they operate so that

pursuant to Article VII of her Will, Norma's shares of Capitol

Foundry stock would pour over into Trust A upon Norma's death,

and then, pursuant to Article IV, Section (B)(6) of the Trust

Document, Lewis would be able to exercise his exclusive option

to purchase those shares.

However, the analysis does not end here because these are

not the only two documents relevant to this appeal. Norma also

entered into the Shareholders' Agreement in December of 2002,

subsequent to executing her estate planning documents in July

of 1992. This Shareholders' Agreement is a contract separate

and distinct from Norma's Will. Nonetheless, the Shareholders'

11
Agreement could affect the operation of Norma's Will because,

even though these two documents were not executed

contemporaneously, a will and a contract are instruments that

both can relate to the same subject matter – the disposition of

property upon death of the owner – and simultaneously embody

the testator's intent on that subject. See McAfee v. Brewer,

214 Va. 579, 581, 203 S.E.2d 129, 131 (1974) (valid contract

must have mutual assent of the parties); Roller v. Shaver, 178

Va. 467, 472, 17 S.E.2d 419, 422 (1941) (valid will expresses

the testator's intent).

Further, it is clear from the substance of Norma's Will

and the Shareholders' Agreement that these two documents

operate in harmony. That is, Norma's Will created a general

provision – Article VII - governing the disposition of the

general residue of Norma's estate upon her death. The

Shareholders' Agreement, in turn, created a specific provision

– Section 3 - governing the particular disposition of Norma's

shares of Capitol Foundry stock upon her death. Norma's shares

are property that would fall into Norma's residuary estate

because they were not otherwise specifically devised or

bequeathed in Norma's Will. Although the general provision set

forth in Norma's Will still has effect, the scope of its

operation is necessarily limited to the extent it would govern

disposition of Norma's shares of Capitol Foundry stock, which

12
is instead governed by the more specific provision set forth in

the Shareholders' Agreement. Cf. Condominium Servs., Inc. v.

First Owners' Ass'n of Forty Six Hundred Condominium, Inc., 281

Va. 561, 573, 709 S.E.2d 163, 170 (2011) ("[A] specific

provision of a contract governs over one that is more general

in nature.").

It is thus necessary to construe the Shareholders'

Agreement to determine how it affects disposition of Norma's

shares of Capitol Foundry stock, and whether that instrument is

valid and enforceable.

C. The Shareholders' Agreement

The Shareholders' Agreement was executed by Norma, Lewis,

and Nancy as shareholders of Capitol Foundry. Section 3,

titled "Mandatory Sale and Purchase of Stock," provides in

relevant part:

(a) Death of an Agreeing Shareholder. Subject to
subparagraph (d) hereof, on the death of an Agreeing
Shareholder, all of the Shares of Stock owned by such
Agreeing Shareholder shall be sold by his personal
representative and shall be purchased by the Company
or the remaining Shareholders for the purchase price
and under the terms set forth in Section 4. Such
offer shall be deemed made and accepted on the
ninetieth (90th) calendar day following the date of
death, whether actually made and accepted or not.

. . . .

(d) An Agreeing Shareholder shall have the right to
convey or bequeath his/her shares to a member of such
Agreeing Shareholder's immediate family. Such right
shall apply during such Agreeing Shareholder's

13
 lifetime and shall also apply subsequent to the demise
of such Agreeing Shareholder, and then be applicable
to such Agreeing Shareholder's executor or
administrator. The term "immediate family" shall be
defined as children, spouses, parents and siblings of
such Agreeing Shareholder.

In light of the parties' arguments, we address these

paragraphs separately.

1. Section 3, Paragraph (d)

We first turn to the exemption provision of Section 3,

Paragraph (d) of the Shareholders' Agreement. To exempt her

shares from the mandatory purchase scheme of Section 3,

Paragraph (a), Norma was able to "convey or bequeath [her]

shares to a member of [her] immediate family." The term

"immediate family" is defined within this paragraph as Norma's

"children, spouses, parents and siblings."

a. Bequest of Norma's Shares by Trust

The parties agree that Paragraph (d) allowed Norma to

bypass the mandatory purchase scheme of Paragraph (a) by

bequeathing her Capitol Foundry stock to her children. The

parties disagree whether Paragraph (d) permitted Norma to do so

by way of the pour-over provision in Norma's Will, which, as

discussed, would convey Norma's shares of Capitol Foundry stock

to Trust A for the benefit of Norma's children.

Resolving this dispute requires ascertaining the nature of

an inter vivos trust. An inter vivos trust is not like a

14
corporation, which is "a legal entity entirely separate and

distinct from the shareholders or members who compose it."

Cheatle v. Rudd's Swimming Pool Supply Co., 234 Va. 207, 212,

360 S.E.2d 828, 831 (1987). So, for example, because a

corporation "is a legal person, separate and distinct from the

persons who own it," it is "the corporation, as the . . . owner

and operator of [a] business, [who] is the person entitled to

[the business's] profits." Keepe v. Shell Oil Co., 220 Va.

587, 591, 260 S.E.2d 722, 724 (1979).

In contrast, an inter vivos trust is inseparable from the

parties related to it, and the trust does not have separate

legal status. Indeed, the term "trust" refers not to a

separate legal entity but to "a fiduciary relationship with

respect to property, subjecting the person by whom the title to

the property is held to equitable duties to deal with the

property for the benefit of another person, which arises as a

result of a manifestation of an intention to create it."

Restatement (Second) of Trusts § 2 (1959). When such a trust

exists, it is not a separate legal entity being referred to,

15
but a fiduciary relationship between already existing parties,

be they real persons or other legal entities. 3

Those parties have specific titles to denote their various

roles within the trust relationship. There is the "settlor,"

or the "person who creates a trust," the "trustee," or the

"person holding property in trust," and the "beneficiary," or

the "person for whose benefit property is held in trust."

Restatement (Second) of Trusts § 3 (1959); see also Code

§ 64.2-701. Because there is no trust entity which retains

title over property held in trust, a settlor who will not also

be a trustee must convey title of trust property to another

party in order for a trust to be created. Code § 64.2-719(1).

In most trusts, 4 the trustee acquires legal title to the trust

property, while "[t]he beneficiary is the equitable owner of

trust property, in whole or in part." Fletcher v. Fletcher,

3
We note that the type of trust we refer to in today's
opinion – that is, a fiduciary relationship – is different in
kind from a business trust. A business trust under the
Virginia Business Trust Act, Code § 13.1-1200 et seq., is a
separate legal entity like a corporation. See Code § 13.1-1201
(defining "[b]usiness trust"); see also Code § 1-231 ("Whenever
the term 'person' is defined to include both 'corporation' and
'partnership,' such term shall also include 'business trust and
limited liability company.'").
4
Nancy invokes the legal principle that, to create a land
trust, the settlor must convey "both equitable and legal title
in the [trust] property to the trustee." Austin v. City of
Alexandria, 265 Va. 89, 95, 574 S.E.2d 289, 292 (2003).
Trust A is not a land trust, and therefore this principle does
not apply to the facts of this case.

16
253 Va. 30, 35, 480 S.E.2d 488, 491 (1997); see also Curtis v.

Lee Land Trust, 235 Va. 491, 494, 369 S.E.2d 853, 854 (1988).

Thus, legal and equitable ownership of property entered into

Trust A in this case is split between the trustees and

beneficiaries.

It would be incorrect, then, to adopt Nancy's argument

that because a trust is not defined in Paragraph (d) as a type

of "immediate family," Paragraph (d) prevented Norma from

bequeathing her shares of Capitol Foundry stock by way of

Trust A. Trust A, like all inter vivos trusts, is simply a

method to transfer property to another party including,

potentially, members of Norma's "immediate family." The

question is thus whether Trust A constitutes a mechanism by

which Norma bequeathed her Capitol Foundry stock to persons who

qualify as members of Norma's "immediate family." If so,

disposition of Norma's shares of Capitol Foundry stock by way

of Trust A was permitted by Paragraph (d) as an alternative to

the mandatory purchase scheme of Paragraph (a).

In undertaking this inquiry, we must determine whether

both the trustees and the beneficiaries of Trust A qualified as

members of Norma's "immediate family." This is because both a

trustee and a beneficiary have a substantial ownership interest

in trust property.

17
 On the one hand, a beneficiary's equitable title permits

the beneficiary to enforce the terms of the trust and to seek

judicial remedy in the event of a breach. See Code § 64.2-

792(B) (setting forth methods for a court to "remedy a breach

of trust that has occurred or may occur"); Miller v. Trevilian,

41 Va. (1 Rob.) 1, 24 (1843) (holding that, when a trustee, as

the legal owner, has "failed to perform his duty," the party

retaining equitable ownership has the power to seek redress in

a court of equity).

On the other hand, a trustee's legal interest is more than

nominal. A trustee, though "a mere representative," must

"attend to the safety of the trust property and . . . obtain

its avails for the beneficiary in the manner provided by the

trust instrument." Fletcher, 253 Va. at 35, 480 S.E.2d at 491.

A trustee's legal title in trust property allows him to utilize

and, if appropriate, dispose of trust property so as to

effectuate his duty to administer the trust. See Code § 64.2-

763. In fact, unless limited by the terms of the trust, a

trustee may exercise "[a]ll powers over the trust property that

an unmarried competent owner has over individually owned

property." Code § 64.2-777(A)(2)(a). And, specifically,

"[w]ith respect to stocks" such as Norma's shares, a trustee

has the power to "exercise the rights of an absolute owner."

Code § 64.2-778(A)(7).

18
 In light of the substantial nature of both a beneficiary's

and trustee's ownership interest in trust property, disposing

of property by trust is a method of conveying such property to

both the trustee and beneficiary. As such, although the

Shareholders' Agreement did not outright prevent Norma from

bequeathing her Capitol Foundry stock by way of Trust A, the

Shareholders' Agreement prevented Norma from bequeathing her

Capitol Foundry stock by way of Trust A if both the trustees

and beneficiaries do not qualify as Norma's "immediate family."

In this case, at the time Norma's shares of Capitol

Foundry stock were to pour over into Trust A, all the

beneficiaries of Trust A qualified as members of Norma's

"immediate family" because each beneficiary – Lewis, Nancy, and

Patricia – is either Norma's son or daughter, and therefore

qualify as Norma's "children."

However, at the time Norma's shares of Capitol Foundry

stock were to pour over into Trust A, all the trustees of Trust

A did not qualify as members of Norma's "immediate family."

Lewis and Thomas were co-trustees of Trust A at the time of

Norma's death. Thomas, being Patricia's husband, is Norma's

son-in-law. Because a son-in-law is not one of Norma's

"children, spouses, parents [or] siblings," Thomas is not a

member of Norma's "immediate family" as that term is defined in

Paragraph (d). We therefore hold that, because Norma's method

19
of bequeathing her shares by way of Trust A did not satisfy the

terms of Paragraph (d), Paragraph (d) did not exempt those

shares from the mandatory purchase scheme of Paragraph (a).

b. Bequest of Norma's Shares Free of Trust

It is now necessary to construe the exemption in Section

VII of Norma's Will. As previously stated, that exemption

permits property that would otherwise pass into Trust A to

instead pass directly to the trust beneficiaries if such

property would be "distributed immediately to any beneficiary"

under the terms of the Trust Document. Appellees argue that

this exemption applies to Norma's shares of Capitol Foundry

stock because the beneficiaries of Trust A will "immediately"

receive all of Norma's shares. Consequently, the argument

goes, because Section VII of Norma's Will permits Norma's

shares to bypass Trust A and be distributed directly to the

beneficiaries, and because all the beneficiaries are members of

Norma's "immediate family," the disposition of Norma's shares

in accordance with the terms of Norma's Will actually falls

within the scope of Paragraph (d).

We find this argument unconvincing because it stretches

the term "immediate" beyond its ordinary meaning. "The

language of the will itself must be relied on as the chief

guide [to understanding how the will operates]. If that

language be ordinary and popular, its meaning is to be

20
construed according to its usual acceptation." Senger v.

Senger, 81 Va. 687, 696 (1886). Immediate means "[o]ccuring

without delay" and "instant." Black's Law Dictionary 866 (10th

ed. 2014). We thus disagree with the appellees because Norma's

shares of Capitol Foundry stock could not be instantly

distributed to any beneficiary under the terms of the Trust

Document.

Unlike most other property poured over into Trust A, which

automatically underwent a per stirpes division under Article

IV, Section (B)(3) of the Trust Document, Norma's shares were

first subject to Lewis's exclusive purchase option under

Article IV, Section (B)(6) of the Trust Document. Lewis's

exclusive purchase option thus prevented every beneficiary from

"immediately" having their per stripes division of Norma's

shares "distributed" to them. And Lewis himself could not

"immediately" have Norma's shares "distributed" to him pursuant

to that exclusive option because he was required to first

determine how many of the shares he wanted to acquire, purchase

such shares, arrange or make payment under a specified payment

plan, and act within a set schedule as established by the terms

of Section (B)(6). This is not the type of automatic and

instant distribution contemplated by the term "immediate" as

that term would apply to most property poured over into

Trust A.

21
 In sum, Lewis's exclusive purchase option prevented

Norma's shares of Capitol Foundry stock from simply passing

through Trust A and being "distributed immediately" to any

beneficiary. The exemption provision of Section VII of Norma's

Will does not apply to Norma's shares, and those shares were

required to pass through Trust A by the terms of Norma's Will

and the Trust Document. This argument therefore does not alter

our conclusion that Norma's estate documents failed to bequeath

Norma's shares in a manner consistent with Section 3, Paragraph

(d) of the Shareholders' Agreement.

2. Section 3, Paragraph (a)

As the exemption of Section 3, Paragraph (d) of the

Shareholders' Agreement does not apply, we must construe the

mandatory purchase scheme of Section 3, Paragraph (a) of that

agreement. We find the language of Paragraph (a) to be clear

and unambiguous, and therefore "the intention of the parties

must be determined from what they actually say [in the

contract] and not from what it may be supposed they intended to

say." McCarthy Holdings LLC v. Burgher, 282 Va. 267, 274, 716

S.E.2d 461, 465 (2011) (internal quotation marks omitted).

That is, we give effect to Paragraph (a), being the intended

"expression of the parties' agreement," the meaning derived

from the plain language of that contract provision. White v.

Boundary Ass'n, Inc., 271 Va. 50, 55, 624 S.E.2d 5, 8 (2006).

22
 Paragraph (a) applies to Norma, Lewis, and Nancy because,

in executing the Shareholders' Agreement, they each are an

"Agreeing Shareholder." As an "Agreeing Shareholder," Norma

bound her "personal representative[s]" to have "all" of Norma's

shares of Capitol Foundry stock "sold." Moreover, Norma's

shares are required to "be purchased by the Company or the

remaining [Agreeing] Shareholders for the purchase price and

under the terms set forth in Section 4 [of the Shareholders'

Agreement]." Thus, Paragraph (a) requires Norma's personal

representatives to sell all of her Capitol Foundry shares to

either the Company or the remaining shareholders upon Norma's

death. 5

Appellees argue that this provision of the Shareholders'

Agreement is unenforceable because it contains an uncertain

material term. "It is well settled that a contract must be

complete and certain[,] and that the essential elements . . .

must have been agreed upon[,] before a court . . . will

5
Norma is deceased, and Lewis and Thomas are Norma's
personal representatives as executors of her estate. See
Bartee v. Vitocruz, __ Va. __, __, 758 S.E.2d 549, 552 (2014).
In administering Norma's estate, Lewis and Thomas must dispose
of Norma's shares consistent with the Shareholders' Agreement,
as such contractual obligations do not "involve any special
skills or training" and therefore Norma's death "does not
discharge [those] obligation[s]." Firebaugh v. Whitehead, 263
Va. 398, 405-06, 559 S.E.2d 611, 616 (2002); see also Code
§ 64.2-514 ("Every personal representative shall administer,
well and truly, the whole personal estate of his decedent.").

23
specifically enforce the contract." Roles v. Mason, 202 Va.

690, 692, 119 S.E.2d 238, 240 (1961). Appellees argue that

Paragraph (a) is uncertain when, as in this case, disagreement

exists about which parties will purchase Norma's stock, as well

as the quantities of stock each party would purchase.

We reject this argument. "The law does not favor

declaring contracts void for indefiniteness and uncertainty,

and leans against a construction which has that tendency."

Reid v. Boyle, 259 Va. 356, 367, 527 S.E.2d 137, 143 (2000)

(internal quotation marks omitted). We do not "permit parties

to be released from the obligations which they have assumed if

this can be ascertained with reasonable certainty from language

used, in light of all the surrounding circumstances." Id.

Such surrounding circumstances include other provisions of the

contract, as we "construe [a] contract as a whole." Schuiling

v. Harris, 286 Va. 187, 193, 747 S.E.2d 833, 836 (2013). Thus,

we review the entire Shareholders' Agreement to determine

whether the contracting parties established a mechanism to

provide certainty to this potentially indefinite term.

Section 14 of the Shareholders' Agreement, titled

"Survival of Benefits," establishes such a mechanism. Section

14 provides, in pertinent part:

24
 Any covenant or agreement made by the Company herein
shall also constitute a covenant and agreement by the
Agreeing Shareholders to vote the Shares of the
Company held by them to cause the Company to perform
any such covenant or agreement.

The Company, through its shareholders, agreed to purchase

Norma's shares of Capitol Foundry stock upon her death in

Section 3, Paragraph (a) of the Shareholder's Agreement. By

way of Section 14 of that agreement, Lewis, Nancy, and Norma,

as "Agreeing Shareholders," have an overriding obligation to

ensure that the Company performs that agreement. Thus, in the

event that the Company, Lewis, Nancy, and Norma's executors

cannot agree as to who will purchase Norma's stock, and in what

quantities, Section 14 obligates Lewis, Nancy, and Norma's

executors to vote their respective shares of the Company so

that the Company will perform its agreement by purchasing all

of Norma's stock.

In this manner, Section 3, Paragraph (a) of the

Shareholders' Agreement is not uncertain as to who will

ultimately purchase Norma's shares, and in what quantity.

Paragraph (a) certainly allows for an array of options as to

what might happen: either the Company, Lewis, or Nancy, or any

combination thereof, may make such a purchase, and in whatever

quantity they determine. But Section 14 provides definiteness

to this term in the event of disagreement by requiring the

25
Agreeing Shareholders to vote their shares to have the Company

purchase all of Norma's stock.

D. Proceedings on Remand

The resolution of the dispositive issues in this appeal

does not resolve the case itself. Nancy's amended complaint

sought relief in the form of an order compelling Norma's

executors to tender Norma's 30.6 shares to Capitol Foundry and

herself. Today, although we agree with Nancy that the

Shareholders' Agreement governs disposition of Norma's shares,

we do not enter the relief Nancy seeks in light of how Section

3, Paragraph (a) of that agreement actually operates.

We note that Paragraph (a) allows for the parties to first

attempt to come to an agreement how such a disposition shall

occur. We will remand this case to the circuit court so that

the parties may, in the first instance, attempt to resolve who

will purchase Norma's 30.6 shares, and in what quantities. If

the parties cannot reach such an agreement, Section 3,

Paragraph (a) and Section 14 of the Shareholders' Agreement

require the shareholders, including Norma's executors on

Norma's behalf, to ensure that Norma sells all 30.6 of her

shares to Capitol Foundry.

III. Conclusion

For the aforementioned reasons, we will reverse the

circuit court's judgment that Norma's estate documents govern

26
disposition of Norma's shares of Capitol Foundry stock, and

that Lewis properly exercised his exclusive purchase option

under the Trust Document. We hold that the Shareholders'

Agreement governs disposition of Norma's shares of Capitol

Foundry stock, and will remand this case for further

proceedings consistent with this opinion.

Reversed and remanded.

JUSTICE McCLANAHAN, dissenting.

The majority opinion elevates form over substance to hold

that Norma Corr's inter vivos trust violates the terms of the

Shareholders' Agreement. "The presumption in commercial

contracts is that the parties were trying to accomplish

something rational. Common sense is as much a part of contract

interpretation as is the dictionary or the arsenal of canons."

Fishman v. LaSalle Nat'l Bank, 247 F.3d 300, 302 (1st Cir.

2001) (internal citation omitted).

Under the terms of Section 3, Paragraph (d) of the

Shareholders' Agreement, Norma could have bequeathed her

Capitol Foundry of Virginia, Inc. (Capitol Foundry) stock to

her three children, subject to an option to purchase by Lewis,

by express provision in her will. The majority opinion

concludes that Norma nevertheless violated Section 3, Paragraph

(d) of the Agreement by her efforts to accomplish that exact

27
result through execution of estate planning documents commonly

used for transferring estate assets to the decedent's

beneficiaries, i.e., a "pourover" will and inter vivos trust.

The "apparent object of the parties" to the Shareholders'

Agreement, as indicated in Section 3, Paragraph (d), was to

limit ownership of Capitol Foundry stock to family members, as

defined therein, which, of course, included Norma's three

children. Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 64,

547 S.E. 2d 216, 226 (2001). The Agreement, however, placed no

restrictions on the method used for effecting such transfer of

ownership. Through her inter vivos trust, Norma provided for

the transfer of actual ownership of her Capitol Foundry stock

to her three children, subject to Lewis' option to purchase.

Indeed, such a trust is "a device for making dispositions of

property" to such beneficiaries, not trustees. Collins v.

Lyon, Inc., 181 Va. 230, 246, 24 S.E.2d 572, 579 (1943).

Accordingly, at the time of the momentary interim transfer of

the stock from Norma's estate (where it is being held) to the

trust, the trustees would hold no more than "bare" legal title

to the stock. See Restatement (Third) of Trusts § 42 cmt c

(2003) ("[A] trustee . . . ordinarily takes only what is

generally described as the 'bare' legal title to the trust

property."); see also Fletcher v. Fletcher, 253 Va. 30, 35, 480

S.E.2d 488, 491 (1997). That is, at no time would the

28
trustees, solely in that capacity, possess any beneficial

ownership interest in the stock. See id. (a trustee is a

"mere representative whose function is to attend to the safety

of the trust property and to obtain its avails for the

beneficiary in the manner provided by the trust instrument"

(quoting George G. Bogert, The Law of Trusts and Trustees §

961, at 2 (rev. 2d ed. 1983)).

No part of this transaction, based on a reasonable reading

of the Shareholders' Agreement, should be deemed a violation of

the Agreement. See Hairston v. Hill, 118 Va. 339, 342, 87 S.E.

573, 575 (1916) ("[A]n unreasonable construction is always to

be avoided."). Therefore, I would affirm the circuit court's

holding that the will, inter vivos trust and Shareholders'

Agreement are not in conflict, and that the trust provision

giving Lewis an option to purchase Norma's Capitol Foundry

stock is thus enforceable.

Because I reach this conclusion, I would proceed to

address the additional question presented by appellant as to

whether the "effectiveness" of Lewis' exercise of the option to

purchase under the terms of the trust was properly before the

circuit court. I would answer that question in the

affirmative. In their counterclaim, the executors and trustees

specifically requested that the circuit court "construe and

interpret the [w]ill, the [t]rust, and the [Shareholders']

29
Agreement so as to determine the rights of the parties named

herein with regard to [Lewis'] [s]tock [o]ption and

subparagraph 3(a) and 3(d) of the Agreement."

For these reasons, I dissent.

30