PRESENT: All the Justices 

DANIEL C. STICKLEY, JR., CO-EXECUTOR 

OF THE ESTATE OF DANIEL C. STICKLEY, SR., 

DECEASED 

 OPINION BY 

v. Record No. 971244 JUSTICE CYNTHIA D. KINSER 

 February 27, 1998 

WILLIAM S. STICKLEY, CO-EXECUTOR 

OF THE ESTATE OF DANIEL C. STICKLEY, SR., 

DECEASED, ET AL. 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

John J. McGrath, Jr., Judge 

 In this appeal, we determine whether an article in a 

will, which directs all estate taxes and administration 

expenses to be paid out of the residuary estate, avoids 

apportionment of the remaining estate taxes upon depletion 

of the residuary estate. Because the testator treated all 

debts the same, we conclude that the estate taxes should 

not be apportioned and, therefore, will affirm the judgment 

of the lower court. 

I. 

 This case concerns the interpretation of Article One 

in the Last Will and Testament of Daniel C. Stickley (the 

Testator), who died on May 4, 1995. Article One of his 

will addresses the payment of death taxes and 

administration expenses: 

All estate, inheritance, and other death 

taxes including interest and penalties together 

with the expenses of my last illness and all 
administration expenses including an appropriate 

marker for my grave, payable in any jurisdiction 

by reason of my death,(including those taxes and 

expenses payable with respect to assets which do 

not pass under this will) shall be paid out of 

and charged generally against the principal of my 

residuary estate. I waive any right of 

reimbursement for or recovery of those death 

taxes and administration expenses. 

Pursuant to the will, Daniel C. Stickley, Jr., and 

William S. Stickley, the Testator’s two sons, qualified as 

co-executors of the estate on May 11, 1995. They are also 

the beneficiaries of the residuary estate. 

 The Testator’s estate is solvent, but the residuary 

estate is insufficient to pay all the administration costs, 

debts, funeral expenses, and estate taxes as directed in 

Article One. A dispute arose between the co-executors 

regarding the proper interpretation of the will and whether 

the estate taxes should be apportioned upon depletion of 

the residuary estate. 

Daniel Stickley filed a bill of complaint in the court 

below and asked the court to give aid and direction 

regarding the interpretation of the will, particularly in 

regard to the issue of apportionment of the estate taxes in 

excess of the funds available in the residuary estate. 

After considering written memoranda and oral arguments of 

the parties, the circuit court held in a decree dated March 

20, 1997, that “the proper interpretation of the testator’s 

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Will requires that estate taxes shall not be apportioned in 

the event of insufficient funds in the residuary estate.” 

The court further found that all estate taxes should be 

treated as a general charge against the estate like the 

debts and costs of administration to be paid from the 

assets in the probate estate. Daniel Stickley appeals. 

I. 

 When an estate owes estate taxes, Code § 64.1-161 

requires that such taxes be apportioned.1 This statute is 

“based on the principle that estate taxes should be 

equitably apportioned among the taxable legatees.” 

Lynchburg College v. Central Fidelity Bank, 242 Va. 292, 

 1

 In pertinent part, Code § 64.1-161(A) states the 

following: 

Except as provided in subsection B of this 

section, whenever it appears upon any settlement 

of accounts or in any other appropriate action or 

proceeding that an executor, administrator, 

curator, trustee or other person acting in a 

fiduciary capacity has paid an estate tax levied 

or assessed under the provisions of any estate 

tax law of the Commonwealth, any other state or 

the United States heretofore or hereafter 

enacted, upon or with respect to any property 

required to be included in the gross estate of a 

decedent under the provisions of any such law, 

the amount of the tax so paid, together with any 

interest and penalty required by the taxing 

authority to be paid, shall be prorated among the 

persons interested in the estate to whom such 

property is or may be transferred or to whom any 

benefit accrues. 

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296, 410 S.E.2d 617, 619 (1991). However, an individual 

may avoid apportionment by making directions in a will “for 

the payment of such estate taxes and . . . designat[ing] 

the fund or funds or property out of which such payment 

shall be made.” Code § 64.1-165. 

In this case, the parties agree that the Testator, in 

Article One of his will, exercised his right under Code § 

64.1-165 to avoid apportionment of the estate taxes as 

otherwise would have been required by Code § 64.1-161(A). 

However, the dilemma for the co-executors is that the 

administration costs, debts, funeral expenses, and estate 

taxes exceed the residuary estate. They disagree as to 

which fund or property should bear the burden of paying the 

estate taxes after the residuary estate is exhausted. 

Daniel Stickley asserts that the estate taxes that remain 

outstanding after exhausting the residuary estate should be 

apportioned. William Stickley, on the other hand, argues 

that the Testator intended that the estate taxes be treated 

the same as all other expenses and administration costs. 

Thus, he contends that the remaining estate taxes should 

not be apportioned but should be a general charge against 

the estate. We agree with William Stickley. 

Although Daniel Stickley argues otherwise, our 

decision in Lynchburg College is dispositive. In that 

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case, the decedent’s will directed that all debts and 

expenses of administration, including any taxes levied 

against the estate, be paid as soon as practicable. The 

decedent did not, however, specify any particular fund out 

of which the expenses and taxes were to be paid. The sole 

question on appeal was whether that provision in the will 

was “sufficient direction to prevent the application of 

Virginia’s apportionment statute, Code § 64.1-161, or, 

stated differently, contains sufficient direction to meet 

the requirements of Virginia’s anti-apportionment statute, 

Code § 64.1-165.” Lynchburg College, 242 Va. at 295, 410 

S.E.2d at 619. We answered the question in the affirmative 

and concluded that, although the decedent did not designate 

the fund out of which the taxes were to be paid, the 

decedent, nevertheless, intended that the taxes be paid 

from the same fund which bore the burden of the other debts 

and administration expenses. In short, the decedent 

intended that the estate taxes, debts, and administration 

expenses be treated as a charge against the estate, thus 

avoiding apportionment of the estate taxes. 

We find the same intent in this case. The Testator, 

in Article One of his will, directed that the estate taxes, 

debts, funeral expenses, and administration costs be 

treated in the same manner by specifying that they all be 

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paid from the residuary estate. An insufficient residuary 

estate does not change that intent. When the Testator 

initially directed identical treatment of all these 

expenses, he successfully invoked the anti-apportionment 

statute, Code § 64.1-165, and having done so, apportionment 

does not apply, absent some direction to that effect by the 

Testator. See Baylor v. Nat’l Bank of Commerce, 194 Va. 1, 

5, 72 S.E.2d 282, 284 (1952) (finding that since decedent 

made no distinction between debts, funeral expenses, and 

estate taxes, decedent intended that these obligations “be 

treated alike and be paid in the same manner and from the 

same fund”). 

Nor is it relevant that the Testator in this case 

designated a particular fund out of which to pay the estate 

taxes and administration costs while the decedents in 

Lynchburg College and Baylor did not. The pertinent 

inquiry is not whether a particular fund was identified but 

whether the Testator intended that the debts, 

administration costs, and estate taxes be treated alike. 

“The intent of the testator is the cardinal rule,” and must 

be fulfilled. Simeone v. Smith, 204 Va. 860, 863, 134 

S.E.2d 281, 283 (1964). In the present case, the 

Testator’s intent to avoid apportionment of his estate 

taxes, even if the residuary estate is depleted, is further 

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evidenced by his waiver in Article One of any right of 

recovery of the estates taxes. 

For these reasons, we conclude that any estate taxes 

outstanding after exhaustion of the residuary estate should 

not be apportioned but should be charged generally against 

the probate estate. The Testator satisfied the 

requirements of the anti-apportionment statute, Code § 

64.1-165. Accordingly, we will affirm the judgment of the 

circuit court. 

 Affirmed.

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