Does a will that devises a farm to a daughter on conditions that she not encumber or sell it, and that her interest immediately cease and vest in her children if she or her creditors attempt to do so, create a life estate in the daughter with remainder in fee simple to her children rather than a fee simple estate?

Viva Parker Lilliston died testate in 1969. Her 1957 will, drafted by an experienced attorney, devised her Accomack County farm to her daughter, Margaret Lilliston Edwards (later Jones), subject to the conditions in Item Fourteen. Those conditions required Margaret to keep the farm free of encumbrances. If she attempted to encumber or sell her interest, or if any creditor attempted to subject it to her debts, her interest would immediately cease and the farm would vest in fee simple in her six children in equal shares. Margaret was in financial difficulty when the will was executed. The testatrix established a spendthrift trust for another child elsewhere in the will and used the words "fee simple" at least seven times in the will and codicil, but not in Items Twelve or Fourteen. Margaret qualified as executrix. In 1979 she sought her children's signatures on an agreement consenting to a sale of the farm; only daughter Beverly Bradley and her husband declined to sign. Margaret died in 1980. Her 1979 will left Bradley $1.00 and directed that the farm be sold and the proceeds divided among her other children.

Bradley filed a bill of complaint in the trial court against the personal representatives of Margaret Jones's estate and her five siblings (collectively Edwards), alleging that the Lilliston will gave Jones a life estate with remainder to her children. She sought to enjoin sale or encumbrance of the farm without her consent and a determination of her interest. After hearing evidence from Bradley, with Edwards presenting none, the trial court found that Jones had violated none of the will's conditions. It concluded in a letter opinion that Jones took a life estate with remainder in fee simple to her six children. A final decree incorporating that opinion was entered March 25, 1981. Edwards appealed to the Supreme Court of Virginia.

(Cochran, J.)

Yes. The Lilliston will created a life estate in Jones with remainder in fee simple to her six children.

A condition totally prohibiting alienation of a vested fee simple, or requiring forfeiture upon alienation, is void. Dunlop v. Dunlop's Ex'rs, 144 Va. 297, 132 S.E. 351 (1926); Hutchinson v. Maxwell, 100 Va. 169, 40 S.E. 655 (1902). A conditional limitation imposed upon a life estate, however, is valid. Mears v. Taylor, 142 Va. 824, 128 S.E. 264 (1925); Camp v. Cleary, 76 Va. 140 (1882). If Jones took a fee simple, the restraints would be void and the land would be freely alienable and reachable by her creditors, contrary to the testatrix's evident intent. If she took a life estate, the restraints are valid and consistent with that intent. Jones could not take a life estate that ripened into a fee simple upon compliance with the conditions.

The will's language and circumstances show an intent to create a life estate. The experienced draftsman avoided the words "fee simple" in Items Twelve and Fourteen while using them elsewhere. Code § 55-11, which makes words of inheritance unnecessary to pass a fee simple, does not apply because the devise carried words of limitation and the will shows a contrary intention. Under Code § 55-7, a life estate may arise by implication where the will shows the requisite intent. Robinson v. Caldwell, 200 Va. 353, 105 S.E.2d 852 (1958). The testatrix knew of spendthrift trusts, having created one for another child, and could have given Jones a life estate with a power of appointment, but did not.

The testatrix intended Jones to have the use and benefit of the farm free of her creditors, with her children as ultimate beneficiaries. A testator's intent controls if the will can reasonably be construed to effectuate it and it does not violate an established rule of law. Powell v. Holland, 224 Va. 609, 299 S.E.2d 509 (1983). The conditional limitation to the children shows they were to take when Jones's interest ended. The decree is affirmed.