West v. Hines

429 S.E.2d 1, 245 Va. 379, 9 Va. Law Rep. 1190, 1993 Va. LEXIS 65
CourtSupreme Court of Virginia
DecidedApril 16, 1993
DocketRecord No. 920859
StatusPublished
Cited by3 cases

This text of 429 S.E.2d 1 (West v. Hines) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West v. Hines, 429 S.E.2d 1, 245 Va. 379, 9 Va. Law Rep. 1190, 1993 Va. LEXIS 65 (Va. 1993).

Opinion

JUSTICE WHITING

delivered the opinion of the Court.

This will construction case involves a determination of the effect of changes made by codicils.

Anne Lindsay Gunter died on January 19, 1991, survived by her husband, Eugene Douglas Gunter. Mrs. Gunter’s holographic will, dated September 13, 1985, and containing six holographic codicils, [381]*381was probated in the Circuit Court of Henrico County on January 31, 1991.

On July 26, 1991, the executors of Gunter’s will filed a suit to construe several provisions of the will and codicils, the pertinent provisions of which follow:

Article Two
I leave my entire estate in trust for my husband Eugene Douglas Gunter his lifetime, if he survives me. If my husband does not survive me — [t]hen I direct that all my personal and real estate be sold and the net proceeds be added and disposed of as part of my Trust Resid[u]ary.
Article Three
All the rest, residue, and remainder of my property, real and personal Trust, I give, devise, and bequeath to the hereinafter named Trustees herein referred to as my Trustees, to be held[,] administered and di[s]posed of by them upon the following Trusts.
A. [Payment of all net income to husband if he survives with power to invade corpus for husband’s support and maintenance.]
B. Upon the death of my husband should he survive me, or upon my death should he not survive me, my Residuary Trust as then constituted shall be reduced and disposed of as follows.
(1) There shall be paid over and delivered to the following named persons if they are then living, that is, living at my husband’s death should he survive me or living at my death should he not survive me, the amount designated for them as follows—
[Bequests of $10,000 each to Mollie West Boissieux, Robert Lee Hines [,Jr.] and Twyla Willey Gunter, and $10,000 to Herman and Clara Faye West “willed as one.”]
[382]*382(2) The Remainder of my Residuary Trust be paid over in equal shares to such of the following named persons who are living at my husband’s death should he survive me, or living at my death should he not survive me. [The same five individuals as those in the preceding paragraph are named, with the Wests designated as “Herman and Clara Fay[e] West.”]

The will gave the trustees and executors ‘ ‘in addition to all other powers granted by law ... the powers set forth in Section 64.1-57 of the Code of Virginia of 1950, as amended, as in force at the date of this will, which powers in whole are by this reference incorporated herein.” Code § 64.1-57(l)(b), in effect when the will was executed, authorizes executors and trustees to “sell . . . any and all investments and property, either real, personal or mixed which may be included in . . . the trust or estate.”

In various codicils, Mrs. Gunter revoked some bequests, conditioned other bequests, and made additional bequests. She also gave options to purchase personal property to Robert L. Hines, Jr. On a date not shown in the record, but apparently before September 3, 1988, Mollie West Boissieux died, and Mrs. Gunter effectively revoked the provisions for her by lining out her name. On September 3, 1988, Mrs. Gunter added a codicil to her will which provided in pertinent part:

After all my bills - expenses - gifts and etc. settled -
The money that is left over I want it equally divided among the following people
Herman West
Sara Rigel
Robert Hines[, Jr.]
Twyla Willey [Gunter]

On January 5, 1991, Mrs. Gunter revoked the September 3, 1988 bequest to Herman West by dating and initialling her act of drawing a line though West’s name as it appeared in the codicil.

The total appraised value of Mrs. Gunter’s estate was $690,012, and was comprised of $366,822 in corporate stocks, $53,190 in tangible personal property, and her residence and lot, appraised at $270,000. The chancellor ruled that Mrs. Gunter ‘ ‘intended for her estate to be held in trust for the benefit of her husband until his death. Upon his death her estate was to be converted (‘reduced’) to cash and distributed to the remaindermen.” The Wests appeal this ruling.

[383]*383Established rules govern our construction of these testamentary documents.

[T]he paramount rule in testamentary construction is that the intention of the testator controls. ... In ascertaining that intention, a court must examine the will as a whole and give effect, so far as possible, to all its parts. Although the language in a will may be obscure and uncertain, if the testator’s intention is ascertainable, his intention will prevail.

Thomas v. Copenhaver, 235 Va. 124, 128, 365 S.E.2d 760, 763 (1988) (citations omitted).

The Wests claim that Mrs. Gunter intended “two different dispositions of her assets, depending on whether she was or was not survived by her husband.” This premise is based primarily upon the Wests’ construction of the word “reduced” in Article Three B.

The Wests note that if Mr. Gunter did not survive Mrs. Gunter, “she clearly directed that all of her personal and real estate be sold and the net proceeds be added and disposed of as part of her Trust Residuary [as cash].” Under those circumstances, the Wests implicitly recognize that Clara Faye West would have received nothing from the residuary trust because the September 3, 1988 codicil effectively removed her as a legatee, and Herman West would have received nothing from the residuary estate because of Mrs. Gunter’s deletion of his name from the September 3, 1988 codicil.

However, the Wests contend that if Mr. Gunter were to survive Mrs. Gunter, as he indeed did, then Mrs. Gunter’s use of the word “reduced” in Article Three manifested an intent not to have her entire estate converted to cash, but merely to ‘ ‘reduce or diminish the Residuary Trust by first distributing $10,000 to each of the named individuals (Clause B(l)) and then the remaining cash and other personal and real estate [noncash property] would then be paid over in equal shares to the same named individuals [as set forth in Clause (B)(2)].” Thus, the Wests reason that because the residuary estate was not to be converted to cash for distribution (as it would have been had Mr. Gunter died first), only such cash as was in the residuary trust estate at the termination of Mr. Gunter’s life interest could be the subject of the September 3, 1988 codicil. Accordingly, [384]*384the Wests argue that this codicil does not affect the bequest in Article Three B(2) and they continue to share in the noncash portion of the residuary estate. We do not agree.

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In re Estate of Liebman
56 Va. Cir. 381 (Norfolk County Circuit Court, 2001)
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Court of Appeals of Virginia, 1996

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Bluebook (online)
429 S.E.2d 1, 245 Va. 379, 9 Va. Law Rep. 1190, 1993 Va. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-hines-va-1993.