Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, 

and Koontz, JJ., and Whiting, Senior Justice 

OWEN B. PICKETT, EXECUTOR UNDER THE 

WILL OF H. CALVIN SPAIN, DECEASED 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 961958 June 6, 1997 

SUSAN C. SPAIN 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

J. Warren Stephens, Judge Designate 

 In this appeal, we consider whether the doctrine of 

election prevents a beneficiary named in a will from 

asserting a right of contribution arising from her payment 

of debts she and the testator owed at the time of the 

testator's death. 

 The litigants stipulated the following facts. H. 

Calvin Spain died testate on December 4, 1992. The 

beneficiaries of his will and a trust, both executed on 

November 17, 1992, were his widow, Susan C. Spain, and three 

children from a previous marriage. 

 The will directed the executor, Owen B. Pickett, to pay 

the testator's "just debts, excluding any mortgage 

indebtedness on [the] home for which [his] wife and [he] are 

jointly liable, even though [his] home passes to her by 

survivorship. . . ." The trust agreement contains the 

following provision: 

 "In the event that the intangible personal 

property passing as part of the Residuary Estate 

under the Grantor's last will and testament is not 

sufficient to pay all the Grantor's debts 

(excluding any debt secured by deed of trust or 

other lien upon the real estate constituting the 

Grantor's residence for which the Grantor and his 

wife are jointly liable) . . . then the Trustee 

may pay out of the Trust Fund to the Grantor's 
personal representative such amount as, when added 

to the intangible personal property available to 

the Grantor's personal representative from 

property passing as part of the Grantor's 

Residuary Estate under his Will, will be 

sufficient to pay in full all such debts, 

expenses, legacies, costs and taxes, subject to 

instructions hereinafter set forth." 

 Under the will, the decedent's tangible personal 

property was vested in his children, but the wife had the 

"nonassignable personal exclusive right to the use in [the 

marital] home of all [the decedent's] furniture and 

furnishings in [the] home for so long as she lives and does 

not remarry." 

 The remainder of the decedent's personal property was 

left to his executor as trustee under the trust agreement. 

Among other things, the trust agreement created a residuary 

trust which included tangible personal property and the 

remaining assets of the estate following payment of debts. 

The trust agreement authorized the trustee to "use the 

diverted funds [income on the Residuary Trust] as necessary 

to protect the value and ownership of the [marital] 

residence until the same can be liquidated in a reasonable 

time and in the reasonable course of business." In 

conformity with that direction, the trustee paid $32,636.30 

from the trust for monthly mortgage payments and insurance 

and maintenance for the marital residence. 

 In 1982, Mrs. Spain purchased and took title to the 

marital residence with $110,000 of the proceeds from the 

sale of her former residence. Subsequently, she executed a 
deed of gift conveying the marital residence to her husband 

and herself as tenants by the entirety with rights of 

survivorship. To fund certain obligations of the husband, 

the Spains executed notes secured by deeds of trust upon the 

marital residence, which were satisfied after the husband's 

death when Mrs. Spain sold the former marital residence. 

The balance of the notes at the time of satisfaction was 

approximately $246,729. 

 By letter dated June 23, 1993, Mrs. Spain informed the 

executor that she was entitled to contribution from the 

estate for one-half of the mortgage indebtedness for which 

she and the testator were jointly obligated. The executor 

refused to honor her claim and asserted that she could not 

recover contribution from the estate because she had 

purportedly elected to receive certain benefits pursuant to 

the terms of the will. Mrs. Spain challenged the executor's 

accounting before the commissioner of accounts, who approved 

the accounting as submitted by the executor. Mrs. Spain 

filed exceptions to the commissioner of accounts' report 

with the chancellor, who sustained her exceptions and 

awarded her contribution. The executor appeals. 

 The executor argues that Mrs. Spain is not entitled to 

receive contribution for her payments in satisfaction of the 

mortgages because she voluntarily elected to accept benefits 

under the will and trust. We disagree. 

 We have discussed the doctrine of election on several 

occasions. 
 "[I]n order to make a case of election it is 

equally well settled that the intention of the 

testator to give that which is not his own must be 

clear and unmistakable. It must appear from his 

language, which is unequivocal and which leaves no 

room for doubt as to the intention of the 

testator. Penn v. Guggenheimer, supra. . . . It 

is not necessary that such intention should be 

expressly declared, but it may be gathered from 

the whole and every part of the instrument. But 

the will must be reasonably construed, even where 

by so doing the parties are put to an election. 

Penn v. Guggenheimer, supra. . . ." 

Waggoner v. Waggoner, 111 Va. 325, 328, 68 S.E. 990, 991-92 

(1910); accord Johnson v. McCarty, 202 Va. 49, 57-58, 115 

S.E.2d 915, 921 (1960); Penn v. Guggenheimer, 76 Va. 839, 

846 (1882); Gregory v. Gates, 71 Va. (30 Gratt.) 83, 89-90 

(1878). 

 Here, the doctrine of election simply has no 

application. Mrs. Spain has a common law right of 

contribution against the estate of the testator because she 

was a co-maker of the notes which were secured by deeds of 

trust on property owned jointly by co-makers with the right 

of survivorship. See Brown, Adm'r v. Hargraves, 198 Va. 

748, 751, 96 S.E.2d 788, 791 (1957). See also Code § 8.01-

11(B). The testator did not use language in his will or his 

trust which evinces a clear intention to require Mrs. Spain 

to make an election between her right of contribution and 

any benefit she may receive under the will. 

 For the foregoing reasons, we will affirm the judgment 

of the chancellor. 

Affirmed.