Present: Hassell, C.J., Keenan,1 Koontz, Lemons, Goodwyn, and 

Millette, JJ., and Russell, S.J. 

WILLARD W. LANE, JR. 

v. Record No. 090404 OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

JANICE L. STARKE, ET AL. April 15, 2010 

FROM THE CIRCUIT COURT OF SURRY COUNTY 

W. Allan Sharrett, Judge 

 This is an appeal from a final order in a suit to 

construe a will. It presents questions concerning whether 

certain devises of real property created vested or contingent 

remainder interests and whether those future interests were 

subject to conditions precedent or conditions subsequent. 

Facts and Proceedings

 The facts are not in dispute. Willard W. Lane, Sr. (the 

testator), a resident of Surry County, died on December 5, 

1991. He was survived by his wife, Bernice J. Lane (the life 

tenant). His will, dated in 1982, was admitted to probate. 

The will appointed the testator’s son, W. W. Lane, Jr., (Lane, 

Jr.) executor but he did not qualify as executor until 2006. 

 The testator’s will contained the following provisions: 

Article II bequeathed all tangible personal property to the 

testator’s wife; Article III devised the testator’s home 

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 Justice Keenan participated in the hearing and decision 

of this case prior to her retirement from the Court on March 

12, 2010. 
place, with 18 acres of land, to the testator’s wife in fee 

simple absolute. Article IV provides: “All the rest and 

residue of my estate I give, devise and bequeath to my wife, 

BERNICE J. LANE, for and during her natural life or until she 

remarries.” Article V provides: 

 Upon the death of my wife, she having survived 

me, or upon her remarriage, I give, devise and 

bequeath the property herein devised to her for her 

life or until her remarriage as follows: 

 1. I give, devise and bequeath that portion of 

the ROWELL PLACE [metes and bounds description] to 

my son, W.W. LANE, JR., upon the EXPRESS condition 

that he pay into my estate ONE-HALF (1/2) of the 

ASSESSED VALUE of such property. 

 2. I give, devise and bequeath the TWO HOUSES 

AND LOTS at SCOTLAND to my two daughters, JANICE L. 

STARKE and MOLLY L. RICKMOND, upon the EXPRESS 

condition that they pay into my estate ONE-HALF 

(1/2) of the ASSESSED VALUE of such property. 

(Emphasis in original.) 

 The life tenant died on March 27, 2002, having never 

remarried. No payment of one-half of the assessed valuations 

of the properties devised to her for her life had been made by 

Lane, Jr., Janice Starke and Molly Rickmond (collectively, the 

remaindermen).2

 In 2006 Lane, Jr., individually and as executor of his 

father’s will, filed this suit in the circuit court requesting 

 2

 The term is used collectively, without regard to gender. 

Black's Law Dictionary 1406 (9th ed. 2009). 

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aid and direction as to the appropriate date upon which to 

determine the assessed valuations of the real property in 

which he and his sisters had been devised remainder interests 

by their father. He asked the court to determine whether the 

date upon which the assessed valuations were to be determined 

should be (A) the date of the will, (B) the date of the 

testator’s death, or (C) the date of the life tenant’s death.3 

 The complaint named as parties Lane’s sisters, Janice 

Starke and Mollie Rickmond, as well as Bryan Lane and Ricky 

Lane, who had not been mentioned in the testator’s will, on 

the ground that their interests might be affected by the 

court’s decision. Bryan and Ricky Lane filed answers 

contending that the remaindermen had forfeited their remainder 

interests by failing to pay, before the death of the life 

tenant, into the testator’s estate, one-half of the assessed 

valuations of the properties devised to them, thus failing to 

comply with a condition precedent. Bryan and Ricky Lane 

contended that the three remaindermen had been devised only 

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 Lane, Jr. also attached to his complaint two pages of 

notes, purported to be in the testator’s handwriting, that had 

been found among his effects, asking the court to decide 

whether they were holographic codicils. The court ruled that 

they were not testamentary in nature. That ruling was not 

appealed and is not before us. That ruling is, therefore, the 

law of the case. 

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contingent remainders that could not vest until the conditions 

precedent were met. 

 After hearing evidence ore tenus and reviewing memoranda 

of counsel, the circuit court, in a memorandum opinion, held 

that Article V of the testator’s will created contingent 

remainders, not vested remainders; that the conditions had to 

be met before the death of the life tenant, which was not 

done; that the failure of the contingencies caused the 

properties to revert to the testator’s estate to be 

distributed through the residuary clause of his will; that the 

residuary clause devised the residue of the testator’s estate 

to the life tenant only for her life and that the residuary 

clause failed because the life tenant was deceased; and that 

the testator was therefore intestate as to the property 

devised under Article V, which would pass to the testator’s 

heirs at law under the statute of descent and distribution. 

The circuit court entered a final order to that effect. We 

awarded Lane, Jr. an appeal. 4

 4

 We granted Lane, Jr.’s appeal individually, but refused 

to grant him an appeal in his capacity as executor. 

Accordingly, he appears as the sole appellant in his 

individual capacity. 

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Analysis

 The appeal questions the circuit court’s legal 

conclusions. We review such questions de novo. Turner v. 

Caplan, 268 Va. 122, 125, 596 S.E.2d 525, 527 (2004). 

 The testator’s will is ambiguous in that it may be 

construed in different ways. Gillespie v. Davis, 242 Va. 300, 

304, 410 S.E.2d 613, 615-16 (1991). It does not explicitly 

provide for the time the assessed valuation of the devised 

parcels is to be ascertained. That uncertainty creates doubt 

as to the amounts to be paid. Those issues raise the 

fundamental legal questions whether the remainders are 

contingent on payment of the amounts due the estate, or 

whether the remainder interests vested at the testator’s 

death, leaving the requirements of payment as conditions 

subsequent. In the latter case, the required payments would 

constitute liens upon the land, enforceable in equity, but 

would not defeat the remainder interests. Gilley v. 

Nidermaier, 176 Va. 32, 41, 10 S.E.2d 484, 487-88 (1940). 

 When testamentary language is clear and unambiguous, it 

will be applied as written unless it contravenes the law or 

public policy, because the testator’s intent is the “guiding 

star” in testamentary construction. Smith v. Trustees of 

Baptist Orphanage, 194 Va. 901, 903, 75 S.E.2d 491, 493 

(1953). When the language of a will is ambiguous, however, 

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leaving the testator’s intent unclear, the courts are guided 

by certain well-settled rules of construction. See Clark v. 

Whaley, 213 Va. 7, 8-9, 189 S.E.2d 46, 47 (1972). Perhaps the 

most time-honored of these canons of construction in Virginia 

is the “early-vesting” rule. This Court, in Catlett v. 

Marshall, 37 Va. (10 Leigh) 83 (1839), construing the will of 

Thomas, Lord Fairfax dated in 1777, established the rule that 

“where no special intent to the contrary is manifested, the 

vesting of legacies shall be referred to the death of the 

testator.” Id. at 96. 

 More recently, we said: 

Our purpose of course is to find the testamentary 

intent. If a will reflects a clear intent that the 

determination of beneficiaries be postponed until a 

life tenant's death, rather than the testator's 

death, we honor that intent. See Griffin v. Central 

Nat'l Bank, 194 Va. 485, 74 S.E.2d 188 (1953). But 

if a will is ambiguous in this regard, we invoke the 

aid of the canon of construction known as the early 

vesting rule. Under that rule, "devises and 

bequests are to be construed as vesting at the 

testator's death, unless the intention to postpone 

the vesting is clearly indicated in the will". 

Chapman v. Chapman, 90 Va. 409, 411, 18 S.E. 913 

(1894). 

Clark, 213 Va. at 8-9, 189 S.E.2d at 47 (footnote omitted). 

 Although the will in the present case postpones their 

enjoyment of the devises made to the remaindermen, there is no 

language in the testator’s will evidencing an intent to 

postpone the vesting of their remainder interests. 

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Accordingly, the early vesting rule applies. We hold that the 

remainder interests vested at the time of the testator’s 

death. 

 Similarly, when testamentary language requires that a 

monetary payment be made prior to the vesting of a future 

interest in a remainderman, the requirement will be treated as 

a condition precedent, but if the language does not 

necessarily provide that the payment must precede vesting, the 

condition is treated as a condition subsequent. Wenner v. 

George, 129 Va. 615, 618, 106 S.E. 365, 366 (1921). As we 

have previously observed: 

The courts have, wherever possible, construed a 

provision for the payment of a legacy, or a sum of 

money, as a charge rather than a condition 

precedent, in order that the estate may vest in the 

devisee. Thus, where it appears from the language 

of the will that the testator intended to couple the 

payment of the legacy by the devisee with the devise 

of the land, so that the payment is to be made, 

because, or as a condition on which, the devise has 

been made, then the real estate is, in equity, 

chargeable with the payment of the legacy. 

Gilley, 176 Va. at 41, 10 S.E.2d at 487-88 (internal quotation 

marks omitted). We therefore hold that the monetary payments 

required by the will are conditions subsequent, constituting 

liens on the land devised, enforceable in equity. 

 The circuit court's construction of the will leads to a 

partial intestacy. 

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 No principle of testamentary construction is 

more firmly settled in Virginia than that there is a 

strong presumption that every testator intends to 

dispose of his entire estate . . . and the courts 

are inclined very decidedly against adopting any 

construction of wills which leaves the testator 

intestate as to any portion of his estate, unless 

that result is inescapable. 

First Nat'l Exchange Bank v. Seaboard Citizens Nat'l Bank, 200 

Va. 681, 685, 107 S.E.2d 408, 411 (1959) (quoting Arnold v. 

Groobey, 195 Va. 214, 224, 77 S.E.2d 382, 387 (1953)). 

 Even though the remainder interests vested at the time of 

the testator’s death, the testator postponed their enjoyment 

by the remaindermen until the death of the life tenant. 

Therefore, their duty to make payment of one-half the assessed 

valuations of the lands devised to them did not arise until 

the death of the life tenant. The amounts they are required 

to pay are therefore to be ascertained by the real estate 

assessments existing on that date. See Armentrout v. 

Armentrout, 112 Va. 660, 663, 72 S.E.721, 722 (1911). 

Conclusion

 For the reasons stated, we will reverse the judgment 

appealed from and remand the case to the circuit court for 

further proceedings consistent with this opinion. 

Reversed and remanded.

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