Larsen v. Stack

PRESENT: All the Justices

SANDRA FLORA SNEAD LARSEN
                                                                 OPINION BY
v. Record No. 190832                                      JUSTICE TERESA M. CHAFIN
                                                                 MAY 28, 2020
PAMELA LARSEN STACK, ET AL.


                    FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                                Clyde H. Perdue, Jr., Judge


       Sandra Flora Snead Larsen (“Sandra”) contends that the Circuit Court of Franklin County

misinterpreted certain provisions of her late husband’s will. Upon review, we find no error in the

circuit court’s decision.

                                        I. BACKGROUND

       Erik Larsen (“Erik”) died testate on April 14, 2017. Erik’s will divided his estate

between his wife, Sandra, his children, Pamela Larsen Stack (“Pamela”) and Kirk Larsen

(“Kirk”), * and his grandchildren.

       The fifth article of the will addressed Erik’s house and farm. That provision stated

                FIFTH: I devise the following described property to my children,
                namely, Pamela Larsen Stack and Kirk Larsen, subject to my wife,
                Sandra Flora Larsen, having the right to reside in our home located
                at 394 Mystic Lane, Wirtz, Virginia, 24184, for so long as she is
                physically and mentally able to do so, and for my wife, Sandra
                Flora Larsen to receive the monthly rental payments, as provided
                for in the PCS Site Agreement (Cell Tower), dated April 16, 2013,
                for as long as she resides in our home, it being all that certain tract
                or parcel of land (Tax Parcel #28-90) containing 101.39 acres,
                more or less, situated, lying, and being in the Gills Creek
                Magisterial District, Franklin County, Virginia, it being the same
                property conveyed to Erik Larsen, from James C. Ellis, by Deed
                dated February 7, 1972, said deed being of record in the Clerk’s
                Office of the Circuit Court of Franklin County, Virginia, in Deed
                Book 277, at page 38.


       *
           Sandra was the stepmother of Erik’s children.
        The sixth article of the will addressed additional real property that Erik owned at the time

of his death. In pertinent part, that provision stated “SIXTH: I hereby give to my wife, Sandra

Flora Larsen, a life estate in my property located at 5414 Quail Ridge Court, Roanoke, Virginia

24018, . . . [w]ith the remainder interest to my children, Pamela Larsen Stack and Kirk Larsen.”

        On April 18, 2018, Pamela and Kirk filed a complaint for declaratory judgment in the

Circuit Court of Franklin County. The complaint requested the circuit court to construe the

terms of Erik’s will and determine the extent of Sandra’s interest in Erik’s house and farm. The

complaint asserted that Pamela and Kirk believed that the will gave Sandra a limited right to live

in Erik’s house “for so long as she is physically and mentally able to do so,” rather than a life

estate in the entire property.

        The circuit court held a hearing regarding the declaratory judgment action on January 3,

2019. During the hearing, the circuit court determined that Erik’s will did not clearly establish

the scope of Sandra’s interest in the house and farm. Consequently, the circuit court permitted

W. Colby Brown, the attorney who drafted Erik’s will, to testify.

        Brown testified that Erik intended for Sandra “to be able to stay on the property, and . . .

[receive] the money from the cell phone tower.” However, Brown clarified that Erik “wanted his

children to end up with the property.” Brown explained that Erik did not give Sandra a life

estate in the property because he was concerned that she would be required to sell such an

interest before she could obtain Medicaid coverage.

        Brown believed that Erik intended for Sandra to have access to the entire farm as long

she was physically and mentally able to reside in the house. Brown explained that “in the event

that [Sandra] had to go into a nursing home basically, or . . . couldn’t live by herself anymore,




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something like that, then at that point her interest in the property would dissolve . . . and then it

would go to the children.”

       At the conclusion of the hearing, the circuit court determined that Sandra did not have a

life estate in the property. The circuit court explained that Erik’s will gave Sandra the right to

reside in Erik’s house and the right to access the entire farm. The circuit court then noted that

Sandra’s rights were “subject to be terminated when she is no longer physically or mentally able

to reside in the home.”

       The circuit court’s final order explained its decision in greater detail. The order

explained that Erik’s will gave Sandra a right to “reside” on the property rather than a life estate.

Quoting the Sixth Edition of Black’s Law Dictionary, the order noted that the term “reside”

means “‘to live, dwell, abide, stay and remain upon.’” The order then clarified that Sandra’s

right to reside on the property included the right to access and enjoy the entire farm. The order

also acknowledged that Erik’s will gave Pamela and Kirk rights concerning the property. The

order explained that the property rights of Pamela and Kirk were “limited only to the extent that

they interfere[d] with [Sandra’s] ability to live on the property by herself.”

       The order reiterated that Sandra only had the right to reside on the property “for so long

as she is physically and mentally able to do.” Quoting Brown’s testimony, the order explained

that “it was [Erik’s] intent in the use of the phrase ‘physically and mentally able to do so’ that

[Sandra’s] interest in residing on the property would end ‘in the event she had to go into a

nursing home . . . or . . . couldn’t live by herself anymore.’”

       Sandra appealed the circuit court’s decision following the entry of the final order.




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                                            II. ANALYSIS

          Sandra presents three assignments of error on appeal. In her first assignment of error,

Sandra contends that the circuit court erred by concluding that Erik’s will did not give her a life

estate in the property at issue. In her second assignment of error, Sandra argues that the circuit

court erred by construing the will in a manner that allowed Pamela and Kirk to access and use

the property. In her third assignment of error, Sandra maintains that the circuit court erred by

considering parol evidence when it construed the limitation that the will placed on her right to

reside on the property.

          We review de novo the circuit court’s interpretation of the legal effect of the will.

Jimenez v. Corr, 

, 404 (2014). The “cardinal principle” of will construction is that

the intention of the testator controls. Gillespie v. Davis, 

 (1991). The intention

of the testator serves as the “polar star” to guide and direct the interpretation of the will. Feeney

v. Feeney, 

 (2018) (quoting Roller v. Shaver, 

 (1941)).

          “We must determine the intention of the testator from the language which he has used,

and if the meaning of that language is plain, the will must be given effect accordingly.” Id. at

317. “To ascertain a testator’s intention ‘the whole will must be examined’ and ‘effect should be

given to all [its] parts . . . , as far as possible.’” Id. (quoting Haag v. Stickley, 

(1990)). “Extrinsic evidence may be considered only if the language of the will is ambiguous,

that is, susceptible to more than one interpretation.” Gaymon v. Gaymon, 

(1999).

          Applying these established principles, we conclude that the circuit court did not err when

it interpreted the terms of Erik’s will.




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   A. ERIK’S WILL DID NOT GIVE SANDRA A LIFE ESTATE

       Sandra maintains that Erik’s will gave her a life estate in the property subject to an

executory limitation. We disagree with Sandra’s argument.

       In general, a “life estate” is “[a]n estate held only for the duration of a specified person’s

life, usu[ally] the possessor’s.” Black’s Law Dictionary 689 (11th ed. 2019). A life tenant “has

the right of possession and to the full enjoyment and use of the land and all the profits arising

during his estate therein.” 1 T.W. Harrison & James P. Cox, Harrison on Wills and

Administration for Virginia and West Virginia § 19.14, at 19-34 (4th ed. 2019). A life tenant

also “must pay the taxes and preserve the property and pay interest on encumbrances.” Id. §

19.15, at 19-35. Conditional or executory limitations may be placed on life estates. Edwards v.

Bradley, 

 (1984).

       “No specific words are required to create a life estate.” Gaymon, 

. “[A]

life estate may be created by implication as well as by explicit language, provided the will shows

the requisite intent.” Edwards, 

. In any event, “a testator’s intention to convey

such an estate must be plainly manifested in the will.” Feeney, 

.

       In the present case, Brown testified that Erik did not intend to give Sandra a life estate in

the property at issue. Brown’s testimony was consistent with the terms of Erik’s will. The will

did not give Sandra a “life estate” or grant her an estate in the property “for life.” Rather, the

fifth article of the will devised the property to Pamela and Kirk in fee simple subject to Sandra’s

“right to reside in [the] home . . . for so long as she is physically and mentally able to do so.”

       Although no specific words are required to create a life estate, another provision of Erik’s

will explicitly gave Sandra a “life estate” in certain property. Specifically, the sixth article of

Erik’s will gave Sandra a “life estate” in real property located in Roanoke. Given Erik’s use of




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the term “life estate” in the sixth article of the will, Erik would have likely used that specific

term in the fifth article of the will if he intended to give Sandra a life estate in the property at

issue.

         An additional term of the will also implied that Erik did not intend to give Sandra a life

estate in the property. In the fifth article of the will, Erik gave Sandra the right to receive the

monthly rental payments earned from a cell tower located on the property “for as long as she

resides in [the] home.” This provision would have been unnecessary if Erik intended to give

Sandra a life estate in the property. As a life tenant, Sandra would have already been entitled to

receive the rental payments. See Livesay v. Boyd, 

 (1935) (explaining that a life

tenant is entitled to the “entire income” generated by a property); Harrison, supra, § 19.14, at 19-

34.

         We conclude that the fifth article of Erik’s will only gave Sandra a limited right to reside

on the property “for so long as she is physically and mentally able to do so.” It did not give

Sandra a life estate in the property.

      B. PAMELA AND KIRK HAD CONCURRENT RIGHTS TO ACCESS AND USE THE
         PROPERTY

         Sandra contends that the circuit court erred when it construed the term “reside” in a

manner that allowed Pamela and Kirk to access and use the property during Sandra’s residency.

Sandra argues that Erik’s will gave her the right to enjoy the entire property without interference

from Pamela and Kirk.

         Contrary to Sandra’s argument, the circuit court recognized that Pamela and Kirk could

not interfere with Sandra’s right to reside on the property. The circuit court held that the rights

of Pamela and Kirk were limited “to the extent that they interfere[d] with [Sandra’s] ability to




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live on the property by herself.” The circuit court also determined that Sandra had the right to

use and enjoy the entire property, not just the house in which she lived.

       Erik’s will did not give Sandra the exclusive right to use the property. Although Sandra

had the right to reside on the property, Pamela and Kirk had concurrent property rights. Notably,

Erik’s will did not expressly prohibit Pamela and Kirk from accessing or using the property

during Sandra’s residency. As the fee simple owners of the property, Pamela and Kirk could use

the property in any manner that did not interfere with Sandra’s rights.

       This Court addressed a similar factual scenario in White v. White, 

 (1944). In

that case, a testator gave his son a life estate in his “mansion house” and farm. White, 

. The testator also gave his wife the right to live in the house “as long she remain[ed the

testator’s] widow.” 

 After the testator’s son died, the testator’s wife continued to live in the

house with the son’s family. 

. Pursuant to the testator’s will, the son’s infant child

owned the house and farm in fee simple following the son’s death. 

.

       “Bickerings and quarrels” arose from the living arrangement that eventually led to

litigation. 

. The testator’s wife alleged that she had the right to the “exclusive

possession” of the house. 

. Accordingly, she requested the trial court to order the son’s

family to vacate the premises. 

. The trial court concluded that the parties had

concurrent rights to live on the property and divided the house into two apartments, assigning

one apartment to the testator’s wife and one apartment to the son’s family. 

.

       This Court affirmed the trial court’s decision. 

. The Court explained that the

testator’s wife had the right to live on the property “free from molestation and interference” from

the son’s family. 

 The Court further clarified that the son’s family owned the property

“subject to” the rights of the testator’s wife. 

 Thus, the Court warned that certain members of




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the son’s family would be removed from the property if they interfered with the rights of the

testator’s wife. 

 Nevertheless, the Court held that both the testator’s wife and the son’s family

had the right to live on the property. 

.

       Like the testator’s wife in White, Sandra had the right to live on Erik’s property “free

from molestation and interference.” See 

. Like the son’s family in White, Pamela and

Kirk had concurrent rights to use and access the property. See 

. Under these

circumstances, the circuit court correctly concluded that the rights of Pamela and Kirk were only

limited “to the extent that they interfere[d] with [Sandra’s] ability to live on the property by

herself.”

   C. PAROL EVIDENCE WAS NECESSARY TO INTERPRET THE SCOPE OF
      SANDRA’S RIGHTS

       Sandra contends that the circuit court erred by considering parol evidence when it

construed the limitation that Erik’s will placed on her right to reside on the property.

Specifically, Sandra argues that the circuit court erred by considering Brown’s testimony to

determine that Sandra’s interest in the property would end “in the event she had to go into a

nursing home . . . or couldn’t live by herself anymore.” Again, we disagree with Sandra’s

argument.

       As previously stated, parol evidence may be considered when the language of a will is

ambiguous. See Gaymon, 

. In such cases, “[p]arol evidence is admissible to

enable the court to identify the property intended to be given by will, or to assist it in

determining the quantum of interest which is to pass by the will.” Parsons v. Fitchett, 

 (1927) (quotation omitted).

       Erik’s will was ambiguous in several ways. The will did not clearly define the scope of

Sandra’s right to reside on the property. Notably, the will failed to indicate whether Sandra had



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the right to access and enjoy the entire property, or whether she only had the right to live in

Erik’s house.

        The will was also ambiguous regarding the limitation that it placed on Sandra’s rights.

Pursuant to Erik’s will, Sandra could reside on the property “for so long as she [was] physically

and mentally able to do so.” The will did not provide any further guidance concerning this

limitation.

        Brown’s testimony addressed the ambiguous provisions of Erik’s will. Brown explained

that Erik intended to give Sandra the right to reside on the entire property for as long she was

physically and mentally able to live there. Brown then testified that Erik intended for Sandra’s

interest in the property to end “in the event that she had to go into a nursing home” or she

“couldn’t live by herself anymore.”

        We conclude that Brown’s testimony was necessary to resolve the ambiguities in the will.

Brown’s testimony explained Erik’s intent regarding the scope of Sandra’s rights and the

limitation that Erik placed on those rights.

        Although Sandra contends that Brown’s testimony impermissibly modified the terms of

Erik’s will, we find that Brown’s testimony and the terms of the will were essentially consistent.

We note that Erik’s will only gave Sandra the right to reside on the property.

        Under these circumstances, we conclude that the circuit court did not err by considering

Brown’s testimony to determine the scope of Sandra’s right to reside on the property and the

limitation that the will placed on that right.

                                         III. CONCLUSION

        For the reasons stated, we affirm the circuit court’s judgment.

                                                                                           Affirmed.




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