Baker v. Linsly

379 S.E.2d 327, 237 Va. 581, 5 Va. Law Rep. 2315, 1989 Va. LEXIS 63
Supreme Court of Virginia·Decided April 21, 1989·No. Record No. 870526·Published·Cited by 6 cases

Opinion

RUSSELL, J.,

delivered the opinion of the Court.

This appeal involves the construction of a will. Specifically, it requires us to determine whether the testamentary language was ambiguous, justifying the admission of extrinsic evidence to aid the court in determining the intent of the testatrix.

Alberta Virginia Baker, a resident of Virginia Beach, died on November 27, 1985. She was unmarried and childless. Aware that she was terminally ill, she had a will prepared by her attorney shortly before her death, which was thereafter admitted to probate. Its pertinent provisions are as follows:

[583] Article I
[A direction to the executor to pay all just unsecured debts and expenses of administration as soon as possible after death.
Article II
I hereby direct my Executor to sell my home at 1347 Little Neck Road, Virginia Beach, Virginia, and the net proceeds of such sale to be applied to the payment of my just debts, including the costs of administration and to the extent net proceeds remain, to be used to satisfy the specific cash bequests set forth below and the remainder, if any, to be passed under the residue of my estate.
Article III
[A series of bequests of specific items of personal property and cash legacies to 22 named individuals and organizations. Some beneficiaries were to receive cash only; some, tangibles only; and others, a combination of cash and tangible items. The cash legacies came to a total of $315,000.00. One of these clauses, containing the largest single legacy, gives to Barnabus William Baker “my daddy’s handmade silver with CPB initials engraved and Twenty Five Thousand ($25,000) dollars.” The article ends with the following paragraphs:]
It is my desire and intent that the specific bequests made above be carried out by my Executor, whose decision and identification of the individual named articles to the named beneficiary shall be conclusive and final, and if there isn’t sufficient monies to make all the above bequests, then all the money bequests shall be proportionately reduced.
All the rest and residue of my property, both real and personal, wherever situate and however held, including lapses, legacies and devises, I devise and bequeath to BARNABUS WILLIAM BAKER.

The will named Jared Linsly, Jr., as executor. After he qualified, the executor instituted this proceeding in the circuit court by filing a petition for aid and direction and for declaratory judg[584] merit. The executor took the position that the entire estate should be devoted to the satisfaction of the cash legacies in Article III, but represented to the court that Barnabus Baker, as residuary legatee, was contending that the cash legacies in Article III were to be funded solely from the proceeds of the sale of Miss Baker’s home, pursuant to Article II.

The executor further alleged that the sale of the home would yield proceeds between $120,000 and $150,000, but that the personal estate contained money market funds totalling approximately $210,000. Thus, if the executor’s interpretation were correct, there would be nearly enough in the estate after payment of debts and expenses to pay the Article III legacies in full, but there would be little, if any, money to pass under the residuary clause. If Mr. Baker’s view prevailed, the Article III legacies would abate pro-rata to less than half the sums mentioned in the will, and the $210,000 in money market funds would pass to Mr. Baker under the residuary clause.

The case came to trial in November 1986. The chancellor ruled that the will was ambiguous and heard extrinsic evidence with respect to Miss Baker’s intent. At the conclusion of trial, the court held that the testatrix intended that her entire estate, not merely the proceeds of sale of her home, was to be used to pay the Article III legacies. We awarded Barnabus Baker an appeal from the final decree which carried that holding into effect. Mr. Baker argues on appeal that the will is clear and unambiguous, and that the court erred in admitting extrinsic evidence. He points out that Article II designates a fund, the proceeds of sale of the house, which is expressly devoted “to satisfy the specific cash bequests set forth below,” and that no alternative means of paying the legacies is provided. He also points to the proviso in Article III: “if there isn’t sufficient monies to make all the above bequests, then all the money bequests shall be proportionately reduced” as demonstrative of the testatrix’ intent. “Monies,” he contends, is merely the plural of “money,” and the only source of ready money provided by the will is the proceeds of sale of the home under Article II. Thus, he contends, it is apparent from the face of the will that the testatrix intended that the legacies abate if the proceeds of sale of the home were insufficient to pay them in full.

The will is indeed subject to the foregoing interpretation, but that is not the only tenable view. The term “monies” is not [585] necessarily limited to cash. In Dillard v. Dillard, 97 Va. 434, 438, 34 S.E. 60, 62 (1899), we said:

It seems to be well settled that a gift in a will of “money,” with nothing in the context to explain or define the sense in which it is used, includes cash, bank notes, and money in bank, but does not include choses in action or securities. The word, however, is often popularly used as synonymous with personal estate, and has been construed to include, besides money literally so called, not only debts and securities, but the whole personal estate, and even the proceeds of realty. What is meant by the word “money” must in each case depend upon the will and its context.

(Citations omitted.)

It is equally well settled that a court construing a will must, if it can, determine the testator’s intent from the language of the will itself. If in doubt, the court must place itself in the position of the testator at the time the will was drafted, and must consider the surrounding facts and circumstances as they then appeared to the testator. See Collins v. Hartford Acci., Etc., Co., 178 Va. 501, 511-512, 17 S.E.2d 413, 417 (1941); 2 Harrison on Wills and Administration § 258 (G. Smith 3rd ed. 1986). Such a consideration is aided by the presumption that a testator, when drafting his will, knows what he owns and what he owes. Board of Missions v. Brotherton, 178 Va. 155, 162, 16 S.E.2d 363, 366 (1941).

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Baker v. Linsly, 379 S.E.2d 327, 237 Va. 581, 5 Va. Law Rep. 2315, 1989 Va. LEXIS 63 (Va. 1989).

379 S.E.2d 327 (Baker v. Linsly) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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