1

Present: All the Justices 

DANIEL J. DOWLING, 

EXECUTOR OF THE ESTATE 

OF WILMA P. DOWLING 

v. Record No. 050181 OPINION BY JUSTICE DONALD W. LEMONS 

 November 4, 2005 

VIVIANNE FRANCOISE 

PELLETIER ROWAN, ET AL. 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

William T. Newman, Jr., Judge 

 In this appeal, we consider whether a premarital 

agreement constituted a waiver of the surviving spouse’s 

claims for a statutory elective share of the decedent spouse’s 

estate, family allowance, and to exempt property, and whether 

the surviving spouse claiming an elective share is entitled to 

attorney’s fees. 

I. Facts and Proceedings Below 

On July 10, 1993, Daniel Dowling (“Dowling”) and his 

future wife, Wilma, entered a premarital agreement (“the 

Agreement”). The Agreement stated in prefatory language that 

“[t]he purpose of this Agreement is to settle the rights and 

obligations of each of them, during their marriage, upon the 

death of either or both of them, or in case of dissolution of 

the marriage.” In paragraph nine of the Agreement, they 

agreed “[t]he property currently belonging to each party and 

titled in his or her name shall remain his (her) separate 
2

property.” Both of them came into the marriage with 

significant assets that were listed in appendices to the 

Agreement. 

During their marriage, Wilma established the Wilma P. 

Dowling Revocable Trust (“Revocable Trust”), the Wilma P. 

Dowling Irrevocable Life Insurance Trust (“Insurance Trust”), 

and executed a Last Will and Testament (“will”) that devised 

her tangible personal property to her husband, Dowling, except 

for “that tangible personal property identified in our 

Prenuptial Agreement” which was devised to Wilma’s daughter by 

a former marriage, Vivianne Rowan (“Rowan”). 

After Wilma’s death, her will was submitted to probate 

and Dowling qualified as Executor of her estate in accordance 

with the will. Thereafter Dowling timely filed claims for an 

elective share of Wilma’s augmented estate, family allowance 

of $18,000, and exempt property valued at $15,000. Dowling 

also claimed reimbursement of expenses related to 

administering the estate, funeral expenses, his Executor’s 

commission, and attorney’s fees, which brought the total sum 

of his claims to $371,678. Rowan opposed all of Dowling’s 

claims.1

 Dowling is an attorney licensed in Virginia and he 

represented himself in the elective share litigation. 

 

 1 Rowan answered in her personal capacity, as Trustee of 

the Insurance Trust, and as Co-Trustee of the Revocable Trust. 
3

The trial court submitted the matter to a commissioner in 

chancery whose report concluded that the Agreement is 

unambiguous and constituted a waiver of any claims upon the 

property listed in the Agreement. After reviewing Dowling’s 

exceptions to the commissioner’s report and hearing argument 

ore tenus from the parties, the trial court overruled 

Dowling’s exceptions and entered a decree consistent with the 

commissioner’s findings of fact and conclusions of law. 

In calculating Dowling’s elective share, the trial court 

listed the items to be included and excluded from the 

augmented estate. Included were several bank accounts, 

jointly owned property, and tangible personal property not 

listed in the Agreement. The court excluded all real and 

personal property listed in the Agreement, certain real 

property located in Peru, the proceeds of Wilma’s life 

insurance policies, and the value of benefits conferred upon 

Dowling under the Revocable Trust. The value of the property 

included in the augmented estate was $63,893. This amount was 

reduced by $44,606, the total amount of funeral expenses, 

various fees, and costs for administration of the estate.2

 The 

 2

 The trial court granted Dowling’s claims for 

reimbursement for expenses including $8,604 for costs of 

administration of the estate, $15,439 for funeral expenses, 

and $13,922 for legal fees related to administration of the 

estate, and $6,641 for accountant fees. 
4

remaining amount, $19,287, was the value of the augmented 

estate as determined by the trial court. 

Pursuant to the trial court’s conclusions, Dowling’s 

elective share, one-third of the augmented estate, was $6,429. 

Since Dowling had already received assets from the estate 

totaling $52,806, and those assets must be deducted from the 

elective share, the trial court held that the estate would owe 

nothing to Dowling. The court denied Dowling’s claim for 

attorney’s fees and costs relating to the elective share 

litigation. 

Dowling, proceeding pro se, appeals the trial court’s 

final order and maintains that the trial court erred in 

calculations of the augmented estate in its (i) exclusion of 

items listed in the Agreement, (ii) exclusion of the Peruvian 

properties, and (iii) exclusion of the life insurance 

policies. Dowling also claims that the trial court erred in 

its denial of attorney’s fees for his elective share 

litigation. 

II. ANALYSIS 

A. Property excluded from the augmented estate 

1. Property listed in the Agreement 

 Parties to a premarital agreement can contract with 

respect to disposition of property upon separation, marital 

dissolution, death, or any other event. Code § 20-150. See
5

Code § 64.1-151.6 (a surviving spouse’s rights to family 

allowance, exempt property, and homestead allowance can be 

waived by premarital agreement). Premarital agreements “are 

contracts subject to the rules of construction applicable to 

contracts generally.” Pysell v. Keck, 263 Va. 457, 460, 559 

S.E.2d 677, 678 (2002). 

 On appeal, we review a trial court's interpretation of 

the contract de novo. Wilson v. Holyfield, 227 Va. 184, 188, 

313 S.E.2d 396, 398 (1984) (“We have an equal opportunity to 

consider the words of the contract within the four corners of 

the instrument itself”). Where contracts are “plain upon their 

face, they are to be construed as written, and the language 

used is to be taken in its ordinary significance unless it 

appears from the context it was not so intended. They are to 

be construed as a whole.” Virginian Ry. Co. v. Hood, 152 Va. 

254, 258, 146 S.E. 284, 285 (1929); accord State Farm Ins. Co. 

v. Justis, 168 Va. 158, 167, 190 S.E. 163, 167 (1937); J.M.

Turner & Co. v. Delaney, 211 Va. 168, 172, 176 S.E.2d 422, 425 

(1970). 

 In this case, we revisit the issue that was before us in 

Pysell and determine whether this particular premarital 

agreement operates as a waiver of the surviving spouse’s 

rights to property in the decedent’s estate. In Pysell, we 

held that no such waiver existed in the premarital agreement 
6

because “nowhere . . . do we find a reference to either 

party’s rights in the property of the estate of the other.” 

263 Va. at 460, 559 S.E.2d at 679 (construing a premarital 

agreement to apply only while the parties were living). This 

case is different. 

 The plain language of the Agreement in this case contains 

an express waiver of rights to specific property of the 

decedent upon death. The Agreement sets forth in prefatory 

language that “[t]he purpose of this Agreement is to settle 

the rights and obligations of each of them, during their 

marriage, upon the death of either or both of them, or in case 

of dissolution of marriage.” (Emphasis added.) The explicit 

reference to rights “upon the death” is precisely the language 

that was lacking in Pysell. 

 Furthermore, there is an implicit reference to survivor’s 

rights in paragraph five, which states: 

 Each party fully understands that, in the 

absence of this Agreement, the law would 

confer upon him or her certain property 

rights and interests in the assets and 

property owned by the other, and it is the 

intent of each party, by this Agreement, to 

relinquish certain of such property rights 

and interests in such assets as specified 

herein. 

Many property rights may arise by operation of law upon 

marriage. Lacking any language to the contrary, and 

considering the stated purpose of the Agreement, we hold that 
7

the foregoing language refers to all property rights accrued 

during the marriage, including a surviving spouse’s rights to 

an elective share, family allowance, and exempt property. The 

trial court did not err in holding that "[Dowling's] claims to 

elective share, family allowance and exempt property in 

Decedent's separate property listed in the appendices of the 

Premarital Agreement are denied as being barred by the terms 

of the Premarital Agreement . . . executed by Petitioner and 

Decedent prior to their marriage.”3

 However, Dowling did not completely waive his 

survivorship rights by executing the Agreement. Rather, 

paragraph five limits the waiver to “certain of such property 

rights and interests in such assets as specified herein.” 

(Emphasis added.) Under paragraph seven, each item of 

individually owned property is listed in the two appendices of 

the Agreement. Consequently, the waiver pertains only to a 

specific list of property. This interpretation is supported 

by paragraph nine wherein the parties agreed that “[t]he 

property currently belonging to each party and titled in his 

or her name shall remain his (her) separate property.” This 

language does not conflict with any other portion of the 

 3

 As expressed in the Assignments of Error, the claims for 

family allowance and exempt property are made only against 

"Wilma's separate property listed in the appendices of the 

Premarital Agreement." 
8

Agreement. In fact, it appears to accord perfectly with the 

stated intent in paragraph five to “relinquish” certain rights 

in the property of the other. 

 This court is duty bound to construe a contract as a 

whole, considering every word and every paragraph, if there is 

a sensible construction that can be given. E.g., State Farm, 

168 Va. at 167, 190 S.E. at 167; J.M. Turner & Co., 211 Va. at 

172, 176 S.E.2d at 425. Read together, the quoted portions of 

the Agreement establish that (i) the Agreement applies upon 

death, (ii) it pertains to certain rights in certain assets 

specified therein, and (iii) separate property is to remain 

separate. There is no conflicting language within the four 

corners of the Agreement. 

 We agree with the trial court that the Agreement 

constituted a waiver of rights in the property designated as 

“separate property” under the Agreement. Accordingly, 

Dowling’s claims to elective share, family allowance, and 

exempt property cannot be satisfied using any property listed 

in the appendix to the Agreement.4

 4

 Dowling raises an additional argument seeking 

satisfaction of his elective share from property bequeathed to 

Rowan. He cites Joint Admission No. 21 which states: 

“[Dowling] is entitled to property specifically bequeathed or 

devised to Ms. Rowan in order to satisfy his elective share.” 

Dowling makes much of the fact that, under Rule 4:11(b), the 

admission would be conclusively established for the purposes 

of the trial court proceeding. We agree with Dowling’s 
9

2. Real property in Peru 

 At the time of her death, Wilma held a remainder interest 

in various real properties located in Peru that she acquired 

by intestate succession. This property is not listed in the 

Agreement. Wilma acquired this interest after she was married 

to Dowling. The trial court excluded the value of these 

properties from the augmented estate pursuant to Code § 64.1-

16.1(B)(ii) which directs exclusion of property from the 

augmented estate which is “received by the decedent by gift, 

will, intestate succession . . . to the extent such property, 

income or proceeds were maintained by the decedent as separate 

property.” The question before us is whether Wilma 

“maintained” this property as separate property. 

 The construction of a statute is a question of law which 

we review de novo. Wilby v. Gostel, 265 Va. 437, 440, 578 

S.E.2d 796, 798 (2003); Ainslie v. Inman, 265 Va. 347, 352, 

577 S.E.2d 246, 248 (2003). We are bound by the plain meaning 

of the words used “unless a literal interpretation would 

result in a manifest absurdity.” Horner v. Dep’t of Mental 

 

argument regarding the effect of an admission, however it is 

irrelevant to the issues before us. The trial court 

calculated that Dowling’s elective share was a mere $6,429, 

and the amount was offset by Dowling’s receipt of assets from 

the estate valued at $52,806. See Code § 64.1-16.2(A). Since 

Dowling’s elective share was more than satisfied by property 

already received, there is no issue regarding satisfaction of 

elective share from property listed in the appendices. 
10

Health, 268 Va. 187, 192, 597 S.E.2d 202, 204 (2004). Accord

In re: Gordon E. Hannett, 270 Va. 223, 233, 619 S.E.2d 465, 

469 (2005). 

 Dowling urges this Court to require physical repair or 

maintenance upon the property to consider it “maintained as 

separate” under the statute. We disagree. The properties at 

issue were located in Peru and Wilma’s relatives who held a 

similar interest occupied several of the properties. It would 

be manifestly absurd to require that Wilma travel to another 

country, enter upon land occupied by another person, and 

perform physical improvements as an act of “maintenance” in 

order to retain the “separate” nature of the property. 

 Looking to the context of the word “maintain” in the 

statute, the language does not refer to physical maintenance 

of “property,” “income” or “proceeds.” Code § 64.1-

16.1(B)(ii). Rather, the language of the statute refers to 

keeping a legal interest in the property separate. 

 At times we consider statutes relating to the same 

subject matter to help provide meaning to the statute before 

us. See Turner v. Commonwealth, 226 Va. 456, 459-60, 309 

S.E.2d 337, 338 (1983). There is ample authority on the 

matter of separate property within domestic relations law. 

The equitable distribution statute defines separate property 

to include “all property acquired during the marriage by 
11

bequest, devise, descent, survivorship or gift from a source 

other than the other [spouse].” Code § 20-107.3(A)(1)(ii). 

Such property will retain its “separate” status for purposes 

of equitable distribution unless one of several circumstances 

transmutes the nature of the property, such as commingling 

separate assets with marital assets or retitling the property 

in the joint names of the spouses. Code § 20-107.3(A)(3)(d), 

(e), and (f). Since the primary purpose of the equitable 

distribution statute is to provide a fair manner for 

classifying assets accumulated during a marriage, we find that 

this body of law is sufficiently analogous to the issue at 

hand to inform our decision. 

 Dowling did not argue that Wilma took any action, such as 

commingling or retitling, which would defeat the separate 

status of her remainder interest in the Peruvian properties. 

In fact, Dowling emphatically argued that Wilma did nothing 

with regard to these properties. On this basis we conclude 

that Wilma’s interest in the Peruvian properties was 

maintained as separate and the trial court properly excluded 

the value of these properties from the augmented estate. 

3. Life insurance policies 

 Wilma owned two life insurance policies that were not 

listed in the Agreement. Three years before her death, Wilma 

established an irrevocable life insurance trust, transferred 
12

the policies to the trust, and named her daughter as 

beneficiary of the trust. The policies had no investment or 

“cash” value on the date of transfer.5

 A life insurance policy subject to the decedent’s control 

on the date of an irrevocable transfer is treated as 

“property” within the augmented estate statute. Code § 64.1-

16.1(D). Property transferred to a third party donee within 

five years prior to death will be included in the augmented 

estate to the extent that the transferred value exceeds 

$10,000 in the calendar year of transfer. Code § 64.1-

16.1(A)(3)(d). The party seeking inclusion of property in the 

augmented estate under Code § 64.1-16.1(A) has the burden of 

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

587 (2003). Accordingly, Dowling has the burden to show that 

the value of the life insurance policies exceeded $10,000 in 

the calendar year they were transferred. 

 Valuation of a life insurance policy is governed by Code 

§ 64.1-16.1(C)(2), which states that 

 [t]he value of an insurance policy that is 

irrevocably transferred during the lifetime of a 

decedent is the cost of a comparable policy on 

the date of transfer or, if such a policy is not 

readily available, the policy's interpolated 

terminal reserve. 

 5

 The Midland National Life Insurance policy was a 

“graded” whole life policy with no cash value until Wilma 

reached 80 years of age. The Garden State Life Insurance 

policy was a term life policy with no cash value. 
13

 The evidence offered by Dowling does not satisfy his 

burden. Dowling maintains that evidence of a “comparable 

policy” is not available for the date of transfer, and there 

was no interpolated terminal reserve. Dowling urges the Court 

to recognize the “full proceeds of the existing policies” as 

the appropriate measure of value. Were we to adopt Dowling's 

position, it would effectively rewrite the plain language of 

Code § 64.1-16.1(C). “Where the General Assembly has 

expressed its intent in clear and unequivocal terms, it is not 

the province of the judiciary to add words to the statute or 

alter its plain meaning.” Jackson v. Fidelity & Deposit Co., 

269 Va. 303, 313, 608 S.E.2d 901, 906 (2005). 

 Moreover, we think it is self evident that the value of a 

term life insurance policy upon transfer before death of the 

named insured is not the full death benefit. Having rejected 

Dowling's position that the value of the policies is the face 

value of the death benefit, the only remaining evidence in the 

record is that offered by Rowan which is the annual premiums 

in the year of transfer, a sum far less than $10,000. 

Consequently, Dowling has failed to prove the $10,000 

threshold to trigger the “pull back rule” in the statute. We 

hold that upon this record the life insurance policies were 

properly excluded from the augmented estate. 
14

B. Attorney’s fees 

 The trial court awarded Dowling $13,922 in legal fees 

related to the administration of the estate, but denied his 

claim for legal fees related to the elective share litigation. 

Dowling argues that the trial court erred in denying his claim 

for attorney’s fees related to the elective share litigation. 

 We adhere to the “American rule” which embodies the 

principle that each litigant must pay his own attorney’s fees 

in the absence of a statute or contractual provision that 

would shift the burden of payment to the unsuccessful party. 

E.g., Lee v. Mulford, 269 Va. 562, 565, 611 S.E.2d 349, 350 

(2005); Mullins v. Richlands Nat’l Bank, 241 Va. 447, 449, 403 

S.E.2d 334, 335 (1991). In Virginia, there is no statutory 

basis for an award of attorney’s fees to the surviving spouse 

in elective share litigation. 

 Dowling attempts to get around this problem by arguing 

that his elective share litigation will help resolve questions 

that must necessarily be answered “to properly settle” the 

estate. He relies upon Code § 26-30 to support his claim 

which states that the commissioner “shall allow the fiduciary 

any reasonable expenses incurred by him as such.” In 

construing this statute, we have held that reasonable expenses 

can be paid out of the estate when the fiduciary, in execution 

of his duties, proceeds in good faith and the aid of counsel 
15

is reasonably necessary for performance of the fiduciary’s 

duties. Clare v. Grasty, 213 Va. 165, 170, 191 S.E.2d 184, 

188 (1972) (partially denying appellant’s claims to attorney’s 

fees for those portions of his litigation that were 

detrimental to the estate). Dowling’s reliance upon this Code 

section and our holding in Clare is misguided. 

 In Clare, we specified that attorney’s fees will not be 

awarded to an executor whose litigation seeks to frustrate the 

testator’s expressed wishes. 213 Va. at 171, 191 S.E.2d at 

188-89. In this case, Dowling's personal interests are 

adverse to those of the estate, to which, as a fiduciary, he 

owes a duty of utmost fidelity. See Pritchett v. First Nat’l 

Bank of Danville, 195 Va. 406, 412, 78 S.E.2d 650, 653 (1950) 

(fiduciaries have the duty to exercise “the highest fidelity” 

and “utmost good faith” in how they deal with an estate). Our 

opinion in O’Brien v. O’Brien, 259 Va. 552, 526 S.E.2d 1 

(2000) is particularly instructive on this point. There, two 

brothers who were co-executors of their deceased mother’s 

estate sued the third brother, in his individual capacity and 

as co-executor, to collect a debt to the estate. O’Brien, 259 

Va. at 554, 626 S.E.2d at 2. We approved the trial court’s 

ruling which granted attorney’s fees to the co-executors who 

sued on behalf of the estate to recover the debt and denied 

attorney’s fees for the defendant brother. Id. at 557-58, 526 
16

S.E.2d at 4. We reasoned that the defendant’s attorney’s fees 

“were incurred for his personal benefit and not to benefit the 

estate or to aid him in his duties as executor.” Id. The 

critical distinction in O’Brien among the brothers was based 

upon function, not form, with regard to the interests of the 

estate. 

 Such is the case here. Dowling’s attempt to characterize 

his elective share litigation as “necessary” to settle the 

estate confuses his function as Executor with his personal 

interests. The only issues that need settling are those 

created by Dowling. Certainly he has a right to pursue his 

elective share litigation but he is not entitled to be 

compensated from the estate for doing so. 

 Because the purpose of Dowling’s elective share claim is 

easily distinguishable from his duties as Executor of the 

estate, the trial court properly granted Dowling the fees for 

administration of the estate while denying his claim for fees 

related to the elective share litigation. 

III. CONCLUSION 

 Based on the foregoing reasons, the trial court did not 

err in its ruling regarding the property to be included in the 

augmented estate or its holding regarding claims of elective 

share, family allowance, or exempt property. Further the 
17

trial court did not err in denying attorney’s fees to Dowling. 

We will affirm the judgment of the trial court. 

Affirmed.