PRESENT: Koontz, Kinser, Lemons, Goodwyn, Millette, and Mims, 

JJ., and Russell, S.J. 

CHRISTINE DOLBY 

 OPINION BY 

v. Record No. 091023 JUSTICE LEROY F. MILLETTE, JR. 

 June 10, 2010 

CATHERINE DOLBY, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Robert J. Smith, Judge 

In this appeal of a suit to seek aid and direction 

regarding the administration of a decedent’s estate and trust, 

we address whether the circuit court erred in ruling that the 

decedent’s estate was not liable for a debt evidenced by a 

promissory note, that was executed solely by the decedent, and 

secured by a deed of trust on real property held by the 

decedent and the decedent’s surviving spouse as tenants by the 

entirety with the right of survivorship. 

BACKGROUND

In 2002, Cornelius A. Dolby (Dolby) acquired title, in 

his name alone, to a house in McLean (the Property). In 

connection with the acquisition of the Property, Dolby 

executed a promissory note, also in his name alone, secured by 

a deed of trust with the Property as security. In 2005, Dolby 

refinanced and satisfied the original note and executed a new 

promissory note secured by a new deed of trust with the 
Property as security. Dolby was the sole obligor on the new 

2005 note. 

In early 2006, Dolby married Christine G. Dolby (Mrs. 

Dolby). On August 28, 2006, Dolby executed a deed 

transferring the Property to himself and Mrs. Dolby as tenants 

by the entirety with the right of survivorship. Dolby 

remained the sole obligor on the note after this transfer of 

ownership. Mrs. Dolby was not added as a joint obligor on the 

note, nor did she assume the obligation. 

On September 19, 2006, Dolby executed a will and an 

amended trust. Article 1.3 of the will provides for the 

payment of “all legally enforceable debts.” Article 1.3 

stated in part: 

I hereby expressly empower my executor to pay such 

debts and expenses . . . . My Executor shall not be 

required to pay prior to maturity any debt secured 

by mortgage, lien or pledge of real or personal 

property owned by me at my death, and such property 

shall pass subject to such mortgage, lien or pledge. 

Dolby died on December 25, 2006, and Mrs. Dolby, as the 

surviving spouse and tenant by the entirety, received title to 

the Property in fee simple absolute by operation of law. Mrs. 

Dolby, Kent Dolby, and Kirkmon Dolby (collectively, the 

Executors) were appointed as co-executors of the estate 

pursuant to Dolby’s will. The Executors filed a complaint for 

aid and direction regarding the estate, asking the circuit 

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court to determine whether Dolby’s estate or Mrs. Dolby was 

liable for payment of the indebtedness on the note secured by 

the deed of trust (the mortgage debt). Mrs. Dolby filed an 

answer asking that the estate be responsible for the mortgage 

debt. Catherine J. Dolby, Kimberly Dolby Lauth, and Heather 

Dolby Kho (collectively, the Dolby children), as beneficiaries 

under the trust, filed an answer requesting that the mortgage 

debt not be paid from the estate, but instead pass with the 

Property as a lien on the Property. 

At the conclusion of the bench trial, the circuit court 

issued a letter opinion and an order ruling that the mortgage 

debt was not an obligation of Dolby’s estate and shall not be 

paid from the estate, and that the Property should pass to 

Mrs. Dolby subject to the debt. The circuit court held that 

Article 1.3 of Dolby’s will evinced his intent that the 

Property pass to Mrs. Dolby subject to the mortgage debt. 

Mrs. Dolby appeals. The Executors and the Dolby children 

participated in the appeal as appellees. 

DISCUSSION

Mrs. Dolby argues that the circuit court erred in ruling 

that the mortgage debt is not an obligation of Dolby’s estate 

because Virginia law requires that an estate pay its just 

debts. Mrs. Dolby contends that the mortgage debt is a debt 

of the Dolby estate because Dolby executed the note in his 

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name alone, and thus was personally and solely liable for the 

mortgage debt, even though it was secured by the mortgage on 

the Property. Mrs. Dolby asserts that a testator does not 

have the authority to direct his or her estate not to pay a 

just debt or to shift the obligation of the debt to property 

that is outside of the testator’s estate. 

In response, the Dolby children argue that a testator may 

assign his or her debts to property that secures that debt. 

The Dolby children concede that the Property is not part of 

Dolby’s estate and that the pertinent language in the will 

refers only to transfers under the will. The Dolby children 

argue, however, that the circuit court’s ruling was correct 

because it gave effect to Dolby’s intent that the mortgage 

debt pass with the Property. 

The issue whether Dolby’s estate is liable to pay the 

mortgage debt is resolved by answering two questions: (1) 

whether Dolby had a personal obligation to pay the debt, and 

(2) whether the mortgage debt is secured by real property 

owned by Dolby upon his death. The answer to the first 

question is that Dolby was personally and solely liable for 

the note that he signed. Brown v. Hargraves, 198 Va. 748, 

751, 96 S.E.2d 788, 791 (1957). In Brown, we addressed 

whether a deceased joint tenant’s estate was liable for 

payment of a debt evinced by two notes, jointly executed by 

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both joint tenants, which were secured by deeds of trust on 

land held as joint tenants with the right of survivorship. 

Id. at 749, 96 S.E.2d at 789. In holding that the deceased 

joint tenant’s estate was liable for one-half of the joint 

debt, we stated: 

The answer to the question presented us depends 

upon whether or not the obligation was one for which 

each of the makers thereof was personally liable. 

That question must be answered in the affirmative. 

In this case, whether the debt was for a loan 

for money advanced, for purchase-money, or was 

secured or unsecured, is not material in fixing 

liability. Where the obligation to pay the debt is 

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

nature of the obligation which controls. Cf.

Annotation, 5 A.L.R. page 503. The debt evidenced 

by the notes was created when the notes were 

executed. The makers thereof became primarily 

liable, jointly and severally. The deeds of trust 

merely created liens on the realty, a collateral 

security for the payment of the notes. 

Id. at 751-52, 96 S.E.2d at 791 (emphasis added). 

In this case, unlike in Brown which involved a joint 

obligation of the two owners of the secured property, the 

mortgage debt arises from a note upon which Dolby was solely 

liable. Mrs. Dolby was not added as a joint obligor on the 

note, nor did she assume the obligation. Although Dolby and 

Mrs. Dolby owned the Property as tenants by the entirety with 

the right of survivorship upon Dolby’s death, the mortgage 

debt on the Property remained a personal obligation of Dolby 

at the time of his death. Therefore, the mortgage debt is a 

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debt of Dolby’s estate. Id. at 752, 96 S.E.2d at 791-92. See 

also Caine v. Freier, 264 Va. 251, 259, 564 S.E.2d 122, 127 

(2002) (holding that a deceased spouse’s estate is liable for 

contribution to the surviving spouse on a mortgage debt upon 

which both spouses were personally liable). Additionally, 

Article 1.3 of Dolby’s will directs the Executors to pay all 

of the estate’s “legally enforceable debts.” 

The second question we must answer to determine if 

Dolby’s estate is liable for the mortgage debt is whether the 

mortgage debt is secured by real property owned by Dolby upon 

his death. The answer to that question is no. Article 1.3 

provides that the Executors are not required to pay prior to 

maturity any debt secured by mortgage on real property that is 

owned by Dolby upon his death. This exception does not apply 

to the Property because Dolby’s ownership interest did not 

survive his death. Id. at 259, 564 S.E.2d at 126. Rather, 

Dolby and Mrs. Dolby owned the Property as tenants by the 

entirety with the right of survivorship. Therefore, the 

Property passed to Mrs. Dolby by operation of law and is not 

part of the Dolby estate. The exception exempting the 

Executors from paying a debt prior to its maturity does not 

apply, and the Dolby estate must, according to the will, pay 

the mortgage debt. The circuit court erred in concluding that 

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the exception in Article 1.3 for mortgages on real property 

applied. 

The Dolby children’s argument that the estate is not 

liable to pay the mortgage debt because Dolby did not intend 

for his estate to pay the mortgage debt is without merit. 

Virginia law has long held that the testator’s intent is the 

“guiding star” in interpreting wills. Smith v. Trustees of 

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

(1953). When such intent is ascertained, “effect will be 

given to it unless it violates some rule of law, or is 

contrary to public policy.” Conrad v. Conrad, 123 Va. 711, 

716, 97 S.E. 336, 338 (1918). Clearly, a testator cannot 

lawfully direct the executor of his or her estate not to pay 

lawfully enforceable debts based upon the testator’s sole and 

personal obligation, or to charge such debts against property 

that passes outside of the testator’s estate. Edmunds v. 

Scott, 78 Va. 720, 726 (1884) (holding that the duty of an 

executor of an estate is to first pay the decedent’s debts). 

CONCLUSION

For the reasons stated, we will reverse the judgment of 

the circuit court and enter final judgment in favor of 

Christine Dolby that the mortgage debt is an obligation of and 

shall be paid from the estate of Cornelius A. Dolby. 

Reversed and final judgment.

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