O'Brien v. O'Brien

PRESENT: Carrico, C.J., Compton,1 Lacy, Hassell, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice
WARREN B. O'BRIEN, EXECUTOR UNDER THE WILL
OF FRANCES C. O'BRIEN, AND INDIVIDUALLY
OPINION BY
SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
v. 	Record No. 990710 	March 3, 2000
JONATHAN A. O'BRIEN, ET AL.
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
F. Ward Harkrader, Jr., Judge
In this appeal, we decide whether a provision in a will
converted a legatee's debt into an advancement. 	We also review
the trial court's rulings regarding the payment of attorneys'
fees.
I
Jonathan A. O'Brien and David S. O'Brien, as two of the
executors of the will of Frances C. O'Brien and also in their
individual capacities (the Complainants), filed a bill of
complaint against Warren B. O'Brien, as an executor under the
will and in his individual capacity. 	The Complainants sought to
recover a judgment against their brother on a note he had
executed in favor of the testator, who was their mother, in the
amount of $459,141.30, plus interest, attorneys' fees, and
costs. 	The Complainants asked the trial court to determine,
1 Justice Compton participated in the hearing and decision of
this case prior to the effective date of his retirement on
February 2, 2000.

"under the proper construction of the [w]ill," that Warren was
indebted to the estate in the amount evidenced by the note. 2
In his answer and cross-bill, Warren asserted that the
Complainants had exceeded their authority as executors by filing
suit against him. 	Warren further asserted that the will
instructed the co-executors to convert his debt into an
advancement, thereby discharging his debt. 	Additionally, Warren
requested the court to rule that the Complainants' legal fees
should be paid by them personally and not by the estate and that
his own attorney's fees should be reimbursed to him out of the
estate.
The trial court concluded that "the will speaks clearly"
regarding the testator's intent, and, therefore, extrinsic
evidence would not be considered.3 The trial court then rejected
Warren's contentions and granted the Complainants' judgment on
the note. 	The court also ruled that the Complainants'
attorneys' fees should be paid by the estate and that Warren was
2 Originally, the Complainants had filed an action at law against
Warren to recover a judgment on the note. 	However, when Warren
raised defenses involving the interpretation of the will, the
trial court transferred the case to the chancery side of the
court. 	The Complainants then filed this bill of complaint in
lieu of their motion for judgment.
3 Neither party has assigned error to this ruling of the trial
court. 	We agree that the language of the will is clear and
unambiguous; therefore, we will look to the four corners of the
will to determine the testator's intent. 	Gaymon v. Gaymon, 258
Va. 225, 230, 519 S.E.2d 142, 144-45 (1999).
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personally responsible for his own attorney's fees. 	Warren
appeals.
II
Frances C. O'Brien died testate on August 9, 1995, and her
three sons were named co-executors of her will. 	Through the
years, Frances had made loans and gifts to each of her sons.4 At
the time of his mother's death, Warren owed her $459,141.30.
This debt was evidenced by a promissory note, dated March 31,
1995, and was the last in a series of notes that Warren had
executed over a period of 12 years (the Final Note).
In Article I, Paragraphs D and F of her will, Frances left
virtually all of her tangible personal property and all of the
residue of her estate to her three sons in equal shares.
Article I, Paragraph G of the will, the provision at issue in
this appeal, provides the following:
Notwithstanding any provision contained herein to
the contrary, any bequest or legacy made under this
Last Will and Testament to any of my children, or to
their issue by representation, shall be
proportionately reduced by any amounts which I have
advanced to such child prior to my death, whether or
not said amount has been documented by note or other
similar document, and the amount of said advance shall
be increased by the proportionate amount by which the
consumer price index for Washington, D.C., average for
all items for urban wage earners and clerical workers,
4 David paid off his loans in the mid-1980's. 	Jonathan had paid
his loans down to $67,106.20 at the time of his mother's death,
and he paid his outstanding debt by foregoing his share of the
tangible personal property of his mother's estate, valued at
$68,926.66.
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issued by the Bureau of Labor and Statistics of the
United States Department of Labor, has increased from
the date of said advance to said child to the date of
my death, averaged for any repayments made on such
advance. 	It is the intent of this provision that each
of my children shall inherit a proportionately fair
share of my estate, taking into consideration the
amounts which I have advanced to any or all of my
children, and the resulting loss of use of those funds
which I have had during the period of time of said
advance.
III
We have held that a loan may be converted into an
advancement by a provision in a will. 	In Darne v. Lloyd, 82 Va.
859, 862, 5 S.E. 87, 88 (1887), we said that "[a] testator can
dispose of his estate by will just as effectually as he could by
gift during his life, and[,] if he pleases, turn a loan into an
advancement, or, to speak more accurately, require that it may
be treated as an advancement."
When a will requires that an advancement be deducted
from a legacy, the donee of the advancement is not required
to refund or surrender the excess of the advancement over
the legacy. 	Instead, the donee loses his legacy, but
retains the advancement. 	See McCoy v. McCoy, 105 Va. 829,
841, 54 S.E. 995, 999 (1906) (child receiving advancement
from parent can only be excluded from participation in
distribution of intestate estate and cannot be required to
pay to estate any part of advancement).
IV
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In the present case, we determine whether Frances
intended to convert the Final Note into an advancement.
The trial court held that this was not Frances' intent,
concluding that she intended "to make an equal distribution
of her estate." 	In reaching this conclusion, the court
relied upon, and found to be "determinative," the second
sentence in Article I, Paragraph G, which reads as follows:
It is the intent of this provision that each of my
children shall inherit a proportionately fair share of
my estate, taking into consideration the amounts which
I have advanced to any or all of my children, and the
resulting loss of use of those funds which I have had
during the period of time of said advance.
The trial court, however, did not address the language in
the first sentence of Article I, Paragraph G, and, effectively,
rendered that sentence meaningless. 	The first sentence, in
pertinent part, reads as follows:
Notwithstanding any provision contained herein to
the contrary, any bequest or legacy made under this
Last Will and Testament to any of my children . . .
shall be proportionately reduced by any amounts which
I have advanced to such child prior to my death,
whether or not said amount has been documented by note
or other similar document.
Frances, in the first sentence of Article I, Paragraph G,
directs, in clear and unambiguous language, that any legacy to a
child shall be proportionately reduced by any amounts she had
"advanced" to such child prior to her death, whether or not the
amounts are documented by note or similar document. 	Giving this
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language its plain meaning, we hold that Warren's debt,
evidenced by the Final Note, was converted into an advancement.
In the second sentence of Article I, Paragraph G, Frances
did not state that she intended for each of her children to have
an equal share of her estate; rather, she intended that each
child receive a "proportionately fair share" of her estate. 	The
terms "equal" and "fair" are not necessarily synonymous, and, in
any event, the second sentence is an expression of general
intent and is controlled by the more specific directives of the
first sentence. 	See 2 Harrison on Wills and Administration
§ 263(3) (3rd ed. 1986).
V
Regarding the issue of the payment of attorneys' fees,
Warren contends that the Complainants exceeded their authority
as executors by filing suit against him. 	Therefore, according
to Warren, the Complainants were not entitled to have their
attorneys' fees paid by the estate, and the trial court erred in
ruling to the contrary. 	We do not agree.
Personal representatives of an estate are obligated to
collect the assets of the estate, which includes a duty to
reduce the estate's claims to judgments. 	Isbell v. Flippen, 185
Va. 977, 981, 41 S.E.2d 31, 33 (1947). 	Additionally, it cannot
be denied that, when provisions in a will may be susceptible of
differing interpretations, it is prudent and proper for the
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personal representatives to seek the aid and guidance of a court
to obtain the correct interpretation.
In the present case, Warren was indebted to the estate,
unless the will converted the debt into an advancement. 	This
presented a question of law, which properly required a court
decision. 	Therefore, we hold that the Complainants did not
exceed their authority in instituting the suit against Warren.
Thus, it follows that it was reasonably necessary for the
Complainants to engage counsel to represent them in the suit,
and, therefore, they are entitled to have their reasonable
attorneys' fees paid by the estate.
We further hold that Warren, on the other hand, is not
entitled to have his attorney's fees paid by the estate. 	The
trial court correctly denied Warren's request because Warren's
attorney's fees were incurred for his personal benefit and not
to benefit the estate or to aid him in his duties as an
executor.
VI
In sum, we hold the following:
1. 	The testator, by Article I, Paragraph G of her will,
converted the loan to Warren into an advancement.
2. 	If Warren's legacy exceeds the amount of the
advancement, he shall be entitled to the excess; if, however,
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the advancement exceeds the amount of his legacy, Warren is not
required to pay the excess.
3. 	The Complainants are entitled to have their reasonable
attorneys' fees paid by the estate.
4. 	Warren is not entitled to have his attorney's fees paid
by the estate.
Accordingly, the trial court's judgment will be affirmed in
part and reversed in part, and the case will be remanded to the
trial court for further proceedings consistent with this
opinion.
Affirmed in part,
reversed in part,
and remanded.
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