Bowles v. Kinsey
| Decision Date | 17 September 1993 |
| Docket Number | No. 921720,921720 |
| Citation | 435 S.E.2d 129,246 Va. 298 |
| Parties | Nancy C. BOWLES v. Wilson H. KINSEY, et al. Record |
| Court | Virginia Supreme Court |
Charles E. Ayers, Jr., Richmond (Cynthia A. Muncie, Ayers & Stolte, on briefs), for appellants.
Hampton W. Thomas, Roanoke, for appellees.
Present: All the Justices.
In this will construction case, we consider whether the trial court erred in construing the term "personal property" to include only tangible personal property.
Wilson H. Kinsey and Joyce S. Kinsey (the trustees), co-executors and co-trustees of the estate of Clara S. Cromer (the testatrix), filed a bill of complaint to construe the testatrix's will. At issue in the will, which was drafted by an attorney, are two provisions relating to the disposition of the testatrix's personal property. The first provision, in Article IV, states: "I hereby give, devise and bequeath all my personal property to my daughter, Nancy C. Bowles."
The second provision, appearing in Article V, states:
All the rest and residue of my property, real, personal or mixed, wheresoever situate, of which I may die seized or possessed or to which I may be entitled at the time of my death, I give, devise and bequeath to ... Wilson Henry Kinsey and Joyce S. Kinsey, or the survivor of them, IN TRUST, as Trustee, to be held, administered and disposed of as hereinafter provided.
(a) The Trustee shall pay to my daughter, Nancy C. Bowles, until she attains the age of 60 years, or apply for her benefit, so much of the income and principal as the Trustee from time to time determines to be required for the support and maintenance of my daughter taking into consideration, however, other means of support and income from all other sources known to the Trustee.
(b) When my daughter attains the age of 60 years, the then remaining trust assets, if any, including principal and interest, shall be divided into three equal shares. My daughter shall be entitled to request and receive, outright and free of trust, one share upon her attaining the age of 60 years, one share upon attaining the age of 62 years and the remaining share upon attaining the age of 65 years. Each share not disbursed shall continue to be held in trust as herein set forth.
The testatrix's estate consists of both tangible and intangible personal property, as well as certain real property improved by a dwelling. The trial court ruled that the term "personal property" in Article IV referred only to the testatrix's tangible personal property. The trial court stated:
How else can the residual trust produce interest? How else can the remaining ... corpus of the Trust be divided into thirds upon the Daughters attaining the age of 60? ... It is my opinion that the Testatrix immediately and directly g[a]ve her tangible personal property to her Daughter and her real, mixed, and intangible personal property were placed in trust by the Will....
Bowles has appealed the trial court's judgment.
Bowles argues that the trial court erred in failing to hold that, as a specific bequest, the provisions of Article IV control over any conflict in the residuary provisions of Article V. Bowles emphasizes that this instrument is not a holographic will and asserts that, if the testatrix had intended to restrict Article IV to "tangible" personal property, she simply could have instructed her attorney to make this distinction. Finally, Bowles contends that this Court may give full meaning to the term "personal property" in Article IV without defeating the trust established in Article V.
In response, the trustees argue that the trial court's construction was correct, citing LeRoy v. Kirk, 262 Md. 276, 277 A.2d 611 (1971), in which the Maryland Court of Appeals construed the term "personal property" in a specific bequest to include only tangible property, in order to give effect to another specific bequest and the residuary clause of the will. Id. at 615. We disagree with the trustees.
The paramount rule of will construction is that the intention of the testator controls, unless such intent is contrary to an established principle of law. Thomas v. Copenhaver, 235 Va. 124, 128, 365 S.E.2d 760, 763 (1988); Powell v. Holland, 224 Va. 609, 615, 299 S.E.2d 509, 512 (1983). In ascertaining the testator's intent, "a court must examine the will as a whole and give effect, so far as possible, to all its parts." Thomas, 235 Va. at 128, 365 S.E.2d at 763.
In the present case, the terms of the will indicate that the testatrix intended Bowles to receive full...
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Turner v. Reed, Record No. 982588.
...residuary beneficiaries and not the [r]espondents, Mazzie Turner and Lois Jarriel." Citing this Court's decision in Bowles v. Kinsey, 246 Va. 298, 435 S.E.2d 129 (1993), Turner and Jarriel contended that "the term `personal property' is a term of art and embraces both intangible and tangibl......