Dolby v. Dolby

PRESENT: Koontz, Kinser, Lemons, Goodwyn, Millette, and Mims,
JJ., and Russell, S.J.

CHRISTINE DOLBY
                                        OPINION BY
v.   Record No. 091023        JUSTICE LEROY F. MILLETTE, JR.
                                       June 10, 2010
CATHERINE DOLBY, ET AL.


           FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Robert J. Smith, Judge


     In this appeal of a suit to seek aid and direction

regarding the administration of a decedent’s estate and trust,

we address whether the circuit court erred in ruling that the

decedent’s estate was not liable for a debt evidenced by a

promissory note, that was executed solely by the decedent, and

secured by a deed of trust on real property held by the

decedent and the decedent’s surviving spouse as tenants by the

entirety with the right of survivorship.

                          BACKGROUND

     In 2002, Cornelius A. Dolby (Dolby) acquired title, in

his name alone, to a house in McLean (the Property).   In

connection with the acquisition of the Property, Dolby

executed a promissory note, also in his name alone, secured by

a deed of trust with the Property as security.   In 2005, Dolby

refinanced and satisfied the original note and executed a new

promissory note secured by a new deed of trust with the
Property as security.   Dolby was the sole obligor on the new

2005 note.

     In early 2006, Dolby married Christine G. Dolby (Mrs.

Dolby).   On August 28, 2006, Dolby executed a deed

transferring the Property to himself and Mrs. Dolby as tenants

by the entirety with the right of survivorship.   Dolby

remained the sole obligor on the note after this transfer of

ownership.   Mrs. Dolby was not added as a joint obligor on the

note, nor did she assume the obligation.

     On September 19, 2006, Dolby executed a will and an

amended trust.    Article 1.3 of the will provides for the

payment of “all legally enforceable debts.”   Article 1.3

stated in part:

     I hereby expressly empower my executor to pay such
     debts and expenses . . . . My Executor shall not be
     required to pay prior to maturity any debt secured
     by mortgage, lien or pledge of real or personal
     property owned by me at my death, and such property
     shall pass subject to such mortgage, lien or pledge.

     Dolby died on December 25, 2006, and Mrs. Dolby, as the

surviving spouse and tenant by the entirety, received title to

the Property in fee simple absolute by operation of law.     Mrs.

Dolby, Kent Dolby, and Kirkmon Dolby (collectively, the

Executors) were appointed as co-executors of the estate

pursuant to Dolby’s will.   The Executors filed a complaint for

aid and direction regarding the estate, asking the circuit



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court to determine whether Dolby’s estate or Mrs. Dolby was

liable for payment of the indebtedness on the note secured by

the deed of trust (the mortgage debt).       Mrs. Dolby filed an

answer asking that the estate be responsible for the mortgage

debt.    Catherine J. Dolby, Kimberly Dolby Lauth, and Heather

Dolby Kho (collectively, the Dolby children), as beneficiaries

under the trust, filed an answer requesting that the mortgage

debt not be paid from the estate, but instead pass with the

Property as a lien on the Property.

        At the conclusion of the bench trial, the circuit court

issued a letter opinion and an order ruling that the mortgage

debt was not an obligation of Dolby’s estate and shall not be

paid from the estate, and that the Property should pass to

Mrs. Dolby subject to the debt.        The circuit court held that

Article 1.3 of Dolby’s will evinced his intent that the

Property pass to Mrs. Dolby subject to the mortgage debt.

        Mrs. Dolby appeals.   The Executors and the Dolby children

participated in the appeal as appellees.

                              DISCUSSION

        Mrs. Dolby argues that the circuit court erred in ruling

that the mortgage debt is not an obligation of Dolby’s estate

because Virginia law requires that an estate pay its just

debts.    Mrs. Dolby contends that the mortgage debt is a debt

of the Dolby estate because Dolby executed the note in his


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name alone, and thus was personally and solely liable for the

mortgage debt, even though it was secured by the mortgage on

the Property.   Mrs. Dolby asserts that a testator does not

have the authority to direct his or her estate not to pay a

just debt or to shift the obligation of the debt to property

that is outside of the testator’s estate.

     In response, the Dolby children argue that a testator may

assign his or her debts to property that secures that debt.

The Dolby children concede that the Property is not part of

Dolby’s estate and that the pertinent language in the will

refers only to transfers under the will.      The Dolby children

argue, however, that the circuit court’s ruling was correct

because it gave effect to Dolby’s intent that the mortgage

debt pass with the Property.

     The issue whether Dolby’s estate is liable to pay the

mortgage debt is resolved by answering two questions:      (1)

whether Dolby had a personal obligation to pay the debt, and

(2) whether the mortgage debt is secured by real property

owned by Dolby upon his death. The answer to the first

question is that Dolby was personally and solely liable for

the note that he signed.   Brown v. Hargraves, 198 Va. 748,

751, 96 S.E.2d 788, 791 (1957).       In Brown, we addressed

whether a deceased joint tenant’s estate was liable for

payment of a debt evinced by two notes, jointly executed by


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both joint tenants, which were secured by deeds of trust on

land held as joint tenants with the right of survivorship.

Id. at 749, 96 S.E.2d at 789.   In holding that the deceased

joint tenant’s estate was liable for one-half of the joint

debt, we stated:

          The answer to the question presented us depends
     upon whether or not the obligation was one for which
     each of the makers thereof was personally liable.
     That question must be answered in the affirmative.
          In this case, whether the debt was for a loan
     for money advanced, for purchase-money, or was
     secured or unsecured, is not material in fixing
     liability. Where the obligation to pay the debt is
     personal, joint and several, as here, it is the
     nature of the obligation which controls. Cf.
     Annotation, 5 A.L.R. page 503. The debt evidenced
     by the notes was created when the notes were
     executed. The makers thereof became primarily
     liable, jointly and severally. The deeds of trust
     merely created liens on the realty, a collateral
     security for the payment of the notes.

Id. at 751-52, 96 S.E.2d at 791 (emphasis added).

     In this case, unlike in Brown which involved a joint

obligation of the two owners of the secured property, the

mortgage debt arises from a note upon which Dolby was solely

liable.   Mrs. Dolby was not added as a joint obligor on the

note, nor did she assume the obligation.   Although Dolby and

Mrs. Dolby owned the Property as tenants by the entirety with

the right of survivorship upon Dolby’s death, the mortgage

debt on the Property remained a personal obligation of Dolby

at the time of his death.   Therefore, the mortgage debt is a



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debt of Dolby’s estate.   Id. at 752, 96 S.E.2d at 791-92.      See

also Caine v. Freier, 264 Va. 251, 259, 564 S.E.2d 122, 127

(2002) (holding that a deceased spouse’s estate is liable for

contribution to the surviving spouse on a mortgage debt upon

which both spouses were personally liable).    Additionally,

Article 1.3 of Dolby’s will directs the Executors to pay all

of the estate’s “legally enforceable debts.”

     The second question we must answer to determine if

Dolby’s estate is liable for the mortgage debt is whether the

mortgage debt is secured by real property owned by Dolby upon

his death.   The answer to that question is no.   Article 1.3

provides that the Executors are not required to pay prior to

maturity any debt secured by mortgage on real property that is

owned by Dolby upon his death.   This exception does not apply

to the Property because Dolby’s ownership interest did not

survive his death.   Id. at 259, 564 S.E.2d at 126.   Rather,

Dolby and Mrs. Dolby owned the Property as tenants by the

entirety with the right of survivorship.   Therefore, the

Property passed to Mrs. Dolby by operation of law and is not

part of the Dolby estate.   The exception exempting the

Executors from paying a debt prior to its maturity does not

apply, and the Dolby estate must, according to the will, pay

the mortgage debt.   The circuit court erred in concluding that




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the exception in Article 1.3 for mortgages on real property

applied.

     The Dolby children’s argument that the estate is not

liable to pay the mortgage debt because Dolby did not intend

for his estate to pay the mortgage debt is without merit.

Virginia law has long held that the testator’s intent is the

“guiding star” in interpreting wills.    Smith v. Trustees of

Baptist Orphanage, 194 Va. 901, 903, 75 S.E.2d 491, 493

(1953).    When such intent is ascertained, “effect will be

given to it unless it violates some rule of law, or is

contrary to public policy.”   Conrad v. Conrad, 123 Va. 711,

716, 97 S.E. 336, 338 (1918).   Clearly, a testator cannot

lawfully direct the executor of his or her estate not to pay

lawfully enforceable debts based upon the testator’s sole and

personal obligation, or to charge such debts against property

that passes outside of the testator’s estate.   Edmunds v.

Scott, 78 Va. 720, 726 (1884) (holding that the duty of an

executor of an estate is to first pay the decedent’s debts).

                            CONCLUSION

     For the reasons stated, we will reverse the judgment of

the circuit court and enter final judgment in favor of

Christine Dolby that the mortgage debt is an obligation of and

shall be paid from the estate of Cornelius A. Dolby.

                                     Reversed and final judgment.


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