PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims and 

Powell, JJ., and Koontz, S.J.

LLOYD VERNON TUTTLE, JR.

OPINION BY

v. Record No. 111911 CHIEF JUSTICE CYNTHIA D. KINSER

September 14, 2012

HENRY B. WEBB, EXECUTOR

OF THE ESTATE OF GRACE TUTTLE

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY

Thomas V. Warren, Judge Designate

Lloyd Vernon Tuttle, Jr. (Lloyd) appeals the circuit 

court's judgment holding that execution of a check payable to 

his wife, Grace Overton Tuttle (Grace), excluded the funds from 

Grace's augmented estate and that therefore Lloyd's written 

consent or joinder was not required when Grace, before her 

death, gifted the funds to her son. Lloyd also appeals the 

circuit court's judgment holding him liable for more than onehalf of an indebtedness evidenced by a note executed by him and 

Grace as co-makers. Because we conclude that Lloyd's check to 

Grace did not exclude those funds from Grace's augmented estate 

pursuant to Code § 64.1-16.1(B)(i) and that Lloyd is liable for 

only one-half of the joint indebtedness, we will reverse the 

circuit court's judgment.

I. REVELANT FACTS AND PROCEEDINGS1

In 2010, Grace died and was survived by her husband, Lloyd, 

their two adopted children, and Henry B. Webb (Henry), her son 

 1 The facts and proceedings are set forth in a written 

statement of facts filed pursuant to Rule 5:11(e).
2

from a previous marriage. In her will, which was probated in 

the Prince Edward County Circuit Court Clerk's Office, Grace 

named Henry as the executor of her estate, and devised and 

bequeathed her entire estate to him.2

Lloyd timely filed a claim for an elective share in Grace's 

augmented estate pursuant to Code § 64.1-13. Subsequently, 

Henry filed a complaint in the circuit court, naming Lloyd as a 

defendant and seeking, among other things, a determination of 

the value of Lloyd's elective share in Grace's augmented estate.3

The circuit court, sitting as the trier of fact, heard 

evidence regarding Grace's estate. In 2005, Lloyd and Grace 

sold their jointly owned real property located in Chesterfield 

County and deposited the sale proceeds of $118,000 into their 

joint checking account. After using a portion of the proceeds 

to pay jointly owed debts, Lloyd executed two checks drawn on 

the joint checking account, each in the amount of $41,750. One 

check was payable to Lloyd, and the other check was payable to 

Grace. Lloyd never cashed his check, and his $41,750 remained 

in the joint checking account. Grace, however, used the 

 2 Grace excluded Lloyd and her adopted children from 

inheriting anything under her will.

3 A petition to establish the amount of an elective share 

may be filed by a surviving spouse, a decedent's personal 

representative, or any party in interest. Code § 64.1-16.2(D); 

Chappell v. Perkins, 266 Va. 413, 418, 587 S.E.2d 584, 587 

(2003).
3

proceeds from her check to obtain two cashier's checks, each 

issued in the amount of $20,875 and payable to Henry.4

Henry testified that the cashier's checks were a gift from 

Grace and that Lloyd knew of the gift. Lloyd, however, 

testified that Grace told him that she gave Henry the money to 

invest for her.

The circuit court held that by executing the check to 

Grace, Lloyd "made a gift of $41,750[] from joint funds of the 

parties to his wife Grace," and that the check to Grace 

represented his consent in writing to a gift from Lloyd to 

Grace. Thus, the court concluded that Grace's gift of those

funds to Henry required no further "written joinder" by Lloyd as 

the funds were already excluded from Grace's augmented estate.

In her will, Grace devised to Henry a parcel of real 

property, located in the Town of Farmville, that she previously 

had received as a gift from her mother. That real property was 

the residence of Lloyd and Grace and was encumbered by a deed of 

trust, which Grace had executed as the sole owner of the 

property. The deed of trust secured the payment of a note in 

the principal amount of $50,000, which both Lloyd and Grace had 

 4 Although there is a discrepancy in the written statement 

of facts with regard to the date Grace and Lloyd deposited the 

proceeds from the sale of their real property into their joint 

checking account and the date Grace acquired the cashier's 

checks, it does not affect the Court's analysis of the issues on 

appeal.
4

executed as co-makers. They used $25,000 of the loan amount to 

repair the Farmville residence, but Lloyd withdrew the remaining 

$25,000 and deposited that sum into an account held solely in 

his name. Lloyd stipulated that, as co-maker of the note, he 

was liable for one-half of the principal amount, i.e., $25,000, 

together with interest, and that such sum should be deducted 

from his elective share of Grace's augmented estate.

The circuit court accepted an appraisal of the Farmville 

residence showing the property to be worth $170,000. The court 

found that Grace had failed to maintain that real property as 

separate property to the extent of $120,000 because Grace and 

Lloyd used part of the loan proceeds to repair and improve the 

property. Thus, the circuit court included the amount of 

$120,000 in Grace's augmented estate. Of that amount, Lloyd's 

elective share, one-third of the augmented estate, was $40,000. 

The circuit court further concluded that Lloyd and Grace's 

estate each should repay one-half of the first $25,000 of the 

loan proceeds because that amount was used to repair the 

Farmville residence. Because Lloyd withdrew the remaining 

$25,000 and deposited the funds into an account in his name 

alone, the court concluded that he must repay the second $25,000 

withdrawal. Thus, the circuit court attributed $37,500 of the 

$50,000 indebtedness to Lloyd and ordered that amount deducted 
5

from his $40,000 elective share, leaving Lloyd with the net sum 

of $2,500.

The circuit court incorporated these and other findings 

regarding Grace's augmented estate in a final order. We awarded 

Lloyd an appeal on two issues: (1) whether the circuit court 

erred by holding that the $41,750 check payable to Grace 

excluded those funds from her augmented estate and that no 

further "written joinder" by Lloyd was required when Grace gave 

the money to Henry; and (2) whether the circuit court erred by 

requiring Lloyd to repay one-half of the $25,000 loan proceeds 

used to repair the Farmville residence in addition to the other 

$25,000 of the indebtedness. We will address the issues in that 

order.

II. ANALYSIS

A. Standard of Review

The issues on appeal present mixed questions of law and 

fact. Thus, "[w]e give deference to the trial court's factual 

findings and view the facts in the light most favorable to the 

prevailing part[y,]" but we review the trial court's application 

of the law to those facts de novo. Caplan v. Bogard, 264 Va. 

219, 225, 563 S.E.2d 719, 722 (2002).
6

B. Augmented Estate

As relevant to this appeal, the term 

augmented estate means the estate passing by 

testate or intestate succession, real and 

personal, after payment of allowances and 

exemptions . . . to which is added the sum 

of the following amounts:

. . . .

3. The value of property transferred to 

anyone other than a bona fide purchaser by 

the decedent at any time during the marriage 

to the surviving spouse, to or for the 

benefit of any person other than the 

surviving spouse, to the extent that the 

decedent did not receive adequate and full 

consideration in money or money's worth for 

the transfer, if the transfer is of any of 

the following types:

. . . .

d. Any transfer made to or for the 

benefit of a donee within the calendar year 

of the decedent's death or any of the five 

preceding calendar years to the extent that 

the aggregate value of the transfers to the 

donee exceeds $10,000 in that calendar year. 

Code § 64.1-16.1(A)(3)(d).

To prevent one spouse from disinheriting the other by 

transferring property before the transferor dies, this statutory 

provision imputes to the decedent's augmented estate the value 

of property transferred by the decedent during the marriage. 

Chappell v. Perkins, 266 Va. 413, 421, 587 S.E.2d 584, 588 

(2003). If, however, property was "transferred by the decedent 
7

during marriage with the written consent or joinder of the 

surviving spouse," the value of the transferred property is not 

included in the transferring spouse's augmented estate. Code 

§ 64.1-16.1(B)(i). The exclusion in subsection (B)(i) is at 

issue in the case now before us. The party seeking such an 

exclusion of property from a decedent's augmented estate carries 

the burden of establishing it. Chappell, 266 Va. at 418, 587 

S.E.2d at 587.

We addressed this particular exclusion in Chappell. There, 

the real property at issue, known as the Elliotts Creek 

property, was purchased by a husband and wife as tenants by the 

entirety. Id. at 417, 587 S.E.2d at 586. Subsequently, they 

executed a deed of gift conveying the property to the wife in 

fee simple, and the wife then transferred the Elliotts Creek 

property to her revocable living trust. Id. The wife died and 

the husband filed a claim for his elective share of the 

decedent's augmented estate. Id. at 416, 587 S.E.2d at 585. 

The decedent's estate asserted that the 

transfer of the property by [the wife] and [the 

husband] to [the wife] was a transfer of property 

by [the wife] made with the written consent or 

joinder of [the husband] and therefore, that the 

value of the property should be excluded from 

[the decedent's] augmented estate under Code 

§ 64.1-16.1(B)(i).

Id. at 421, 587 S.E.2d at 588.
8

We concluded that the circuit court did not err by 

including the Elliotts Creek property in the decedent's 

augmented estate. Id. at 422, 587 S.E.2d at 589. Holding that 

"subparagraph (B)(i) of Code § 64.1-16.1 applies when a spouse 

consents to a specific conveyance that removes the property 

from, or decreases the value of, the transferring spouse's 

estate," we concluded that "the transfer of the Elliotts Creek 

property to [the wife] in fee simple did not remove the property 

from, or decrease the value of, [the decedent's] estate." Id. 

We explained that "[i]f a transfer does not remove the property 

from the transferring spouse's estate, the consent of the nontransferring spouse, while a consent to the transfer, is not a 

consent to any diminution in the estate by virtue of that 

transfer." Id. Thus, the Elliotts Creek property did not come 

within the exclusion in Code § 64.1-16.1(B)(i) because the 

husband's consent to the transfer of the property to the wife 

was not a consent to a decrease in the value of the decedent's 

estate. Id.

Relying on Chappell, Lloyd argues that his consent to the 

transfer of joint funds to Grace alone was not a written consent 

to or joinder in her subsequent gift to Henry. Lloyd further 

contends the circuit court erred by concluding that he did not 

need to consent to or join in Grace's gift to Henry because the 

funds were already excluded from Grace's augmented estate. 
9

Henry, however, contends that Lloyd's act of preparing, signing 

and giving the $41,750 check to Grace with the knowledge that 

she intended to give the proceeds to Henry constituted his 

written consent, or at least his joinder, in Grace's subsequent 

gift to Henry.

Contrary to Henry's assertions, the check from Lloyd to 

Grace merely transferred $41,750 of jointly owned funds to 

Grace. At that juncture, the funds gifted to Grace became her 

sole property. Lloyd's execution and gift of the check to Grace 

did not remove those funds from, or decrease the value of, 

Grace's estate. In other words, the check represented Lloyd's 

consent to the transfer of joint property to Grace alone but it 

did not signify his consent to remove the property from or

diminish the value of Grace's estate. And, contrary to the 

circuit court's holding, Lloyd's gift to Grace did not exclude 

those funds from her augmented estate. Consequently, Lloyd's 

written consent to or joinder in Grace's subsequent gift to 

Henry was still required. Thus, the circuit court erred by 

excluding the sum of $41,750 from Grace's augmented estate.

C. Joint Indebtedness

According to the written statement of facts, Grace and 

Lloyd executed the $50,000 note "as co-makers."5

 Whether that 

note "was secured or unsecured[] is not material in fixing 

 5 The actual note is not in the record of this case.
10

liability." Brown v. Hargraves, 198 Va. 748, 751, 96 S.E.2d 

788, 791 (1957). "Where the obligation to pay the debt is 

personal, joint and several, as here, it is the nature of the 

obligation which controls." Id. The debt evidenced by a note 

is created when the note is executed. Id. at 752, 96 S.E.2d at 

791. Thus, as co-makers, Grace and Lloyd became primarily 

liable, jointly and severally. See id. at 751-52, 96 S.E.2d at 

791.

When two or more persons are jointly liable to pay a debt, 

"[t]he law implies a contract between [the co-obligors] to 

contribute ratably toward the discharge of the obligation." Van 

Winckel v. Carter, 198 Va. 550, 555, 95 S.E.2d 148, 152 (1956). 

A party's "right to contribution does not arise out of any 

express contract or agreement between the parties to indemnify 

each other, but on the broad principles of equity which courts 

of law enforce that where two persons are subject to a common 

burden it shall be borne equally between them." Houston v. 

Bain, 170 Va. 378, 389-90, 196 S.E. 657, 662 (1938).

Lloyd argues that nothing under the augmented estate 

statutes makes him, as a co-maker of the $50,000 note, liable 

for more than one-half of the principal amount of that 

indebtedness. Henry contends, however, that the circuit court 

correctly found Lloyd liable for one-half of the first $25,000 

draw from the loan proceeds because that sum was used to improve 
11

the Farmville residence, thus increasing both the value of that 

property and the value of Lloyd's elective share. Henry argues 

that because Lloyd withdrew the second $25,000 for his sole 

benefit, unlike the first $25,000 draw that benefited both Lloyd 

and Grace, the circuit court acted within its discretion by 

requiring Lloyd to pay a disproportionate amount of the 

indebtedness. We do not agree with Henry.

In Brown, the administrator of an estate sought guidance on 

whether a decedent's personal estate should be used to pay a 

debt evidenced by two notes jointly executed by the decedent and 

the surviving spouse. 198 Va. at 748-49, 96 S.E.2d at 789. 

While the defendant did not question the general rule that "a 

personal debt of the decedent . . . is to be paid primarily out 

of his personalty," the defendant asserted that an exception 

applied when "the entire estate is vested in the surviving joint 

tenant[] and the estate of the deceased [took] nothing in the 

property." Id. at 750, 96 S.E.2d at 790. We disagreed and held 

the decedent and the surviving spouse, as

the makers of the notes . . . . made and signed 

personal obligations, whereby each of them became 

personally liable to the holders of the notes for 

the full amounts thereof, and, as between 

themselves, jointly and severally liable. Subject 

to a common burden to be borne equally, each had 

the right to look to the other for reimbursement 

for any amount expended beyond the proportionate 

amount required to be paid by each of them. Thus 

each was entitled to the right of contribution, 

an equity which arises when one of several 
12

parties liable on a common debt discharges the 

obligation for the benefit of all. 

Id. at 751, 96 S.E.2d at 791.

Here, both Grace and Lloyd, as co-makers of the $50,000 

note, became personally liable to the holder of the note for the 

full amount owed and as between themselves, jointly and 

severally liable. Because both Grace and Lloyd became 

"[s]ubject to a common burden to be borne equally," each was 

entitled to the right of contribution from the other for onehalf of the joint indebtedness evidenced by the note. Id.

Thus, the circuit court erred by charging Lloyd with more than 

one-half of the total indebtedness.

III. CONCLUSION

In sum, the circuit court erred by failing to include the 

sum of $41,750 in Grace's augmented estate. The court further 

erred by requiring Lloyd to pay more than one-half of the total 

indebtedness evidenced by the $50,000 note. Therefore, we will 

reverse the judgment of the circuit court and remand this case 

for further proceedings consistent with this opinion.

Reversed and remanded.