Opinion
Case No.: CL16-1488
07-08-2016
CHARLES PARKER, EXECUTOR OF THE ESTATE OF CHERYL H. WARD, Plaintiff, v. GARY S. WARD, JENNIFER MARIE GARRIS, and MICHELE GARRIS BARLOW, Defendants.
ORDER
Plaintiff Charles Parker ("Parker), Executor of the Estate of Cheryl H. Ward ("the Estate"), appeared by counsel before the Court on July 7, 2016, for a hearing (the "Hearing") on his Complaint for Aid and Direction, proper notice having been given to all parties. Defendants Gary S. Ward ("Gary") and Jennifer Marie Garris ("Jennifer") were also present, pro se. Defendant Michele Garris Barlow ("Michele") was not present.
The Last Will and Testament (the "Will") of Cheryl H. Ward ("Cheryl"), dated January 31, 2013, devised to Cheryl's husband, Gary, a life estate in real property located at 1214 Hullview Avenue, Norfolk, Virginia (the "Real Property"), with the remainder devised to Cheryl's and Gary's daughter, Sarah Elizabeth Ward ("Sarah"), in fee simple. The Will also bequeathed the residue of the Estate to Sarah. The Will further bequeathed to Jennifer and Michele (Cheryl's—but not Gary's—daughters) $500.00 each. Sarah predeceased Cheryl, and Parker seeks aid and direction in determining how to distribute the Estate. At the conclusion of the Hearing, the Court took the matter under advisement.
Now the Court—after considering the pleading and the evidence presented at the Hearing, as well as reviewing applicable authorities—rules as follows.
The Court finds that Sarah is the sole remainderman of Gary's life estate. At common law, "a devise lapses in all cases where the devisee dies before the testator." Gardner v. Gardner, 152 Va. 677, 683, 148 S.E. 781, 783 (1929). Further, "[t]he common law is not to be considered as altered or changed by statute unless the legislative intent be plainly manifested." Hannabass v. Ryan, 164 Va. 519, 525, 180 S.E. 416, 418 (1935). The General Assembly modified the common law in this regard, enacting the Virginia anti-lapse statute. Va. Code § 64.2-418 (2012 Repl. Vol.).
Pursuant to section 64.2-418 of the Code of Virginia, where a devisee who is descended from a grandparent of the testator is "dead at the time of [the] testator's death, the children and the descendants of deceased children of the deceased devisee or legatee who survive the testator take in the place of the deceased devisee or legatee." Id. "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." C. & O. Ry. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965). Although Sarah, as Cheryl's daughter, is descended from a grandparent of Cheryl and Sarah's rights under the Will therefore would pass to her children by statute, Sarah died without children. The anti-lapse statute clearly and specifically is limited to those circumstances where the devisee has children or descendants. As the common law rule of lapsing devises has not been abrogated by statute unless the devisee left children or descendants of deceased children who survived the testator, the common law rule must apply. See Gardner, 152 Va. at 683, 148 S.E. at 783 ("[T]he conclusion is irresistible that a devise to a joint tenant who predeceases the testator would lapse, just as a devise to a tenant in common would do, unless the tenant left issue who survived the testator, or unless a different disposition thereof be made or required by the will."). The devises to Sarah, in the form of the remainder interest of Gary's life estate in the Real Property and the residue of the Estate, therefore lapse. Where a devise fails, it become part of an estate's residue. Va. Code § 64.2-416. Where property, real or personal, is not effectively disposed of by a will, it passes by intestate succession. Va. Code §§ 64.2-200, 64.2-201.
Upon Cheryl's death, Sarah's remainder interest of Gary's life estate in the Real Property lapsed and became part of the residue of the Estate. The bequest of the Estate's residue to Sarah—including her remainder interest of Gary's life estate in the Real Property—likewise lapsed and therefore passed through intestate succession of Cheryl. Because Cheryl has a surviving spouse—Gary—and is also survived by two children who are not children of her surviving spouse, "two-thirds of the estate descends and passes to the decedent's children and their descendants, and one-third of the estate descends and passes to the surviving spouse." Va. Code § 64.2-200. One third of the residue of the Estate and one third of the remainder interest of Gary's life estate in the Real Property therefore is to be distributed each to Michele, Jennifer, and Gary. Gary will continue to possess a life estate in the Real Property until his death.
Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email a copy of this Order to all counsel of record.
IT IS SO ORDERED this 8th day of July, 2016.
/s/_________
David W. Lannetti
Circuit Court Judge