In an unpublished opinion, the Court of Appeals of Virginia affirms the lower court’s finding that two women were not remainder beneficiaries of a life estate created by their aunt. The appellate court holds that a personal residence does not require sole or exclusive use. Intermittent use was sufficient to prolong the life estate. In Brown v. Johnson (Va. Ct. App. No. 0491-23-4, April 16, 2024).
In her will, Mary Putnam gave a life estate to her sister and her husband, Anna and Clarence Johnson, and their daughter, Sharon Johnson. The life estate required at least one of them to use the house as their personal residence to maintain it. It also provided that if neither of these individuals survived her by 30 days, the house be devised in fee simple to her nieces, LaVonnia Brown and Sylvia Stoval. Her will also expressed her wish for the house to stay in the family.
Clarence Johnson predeceased Ms. Putnam, but Anna Johnson and Sharon Johnson survived her. Anna Johnson lived in the house with her two other children. After Anna Johnson died, Sharon spent at least two nights a week at the house while she leased an apartment before moving in full time.
Ms. Brown and Ms. Stoval sought a declaration that the life estate had ended and that they held the remainder interest in the house.
The trial court found the life estate had not ended because Sharon used the house as her personal residence. If all the Johnsons died within 30 days of the testator, Ms. Brown and Ms. Stoval would have a claim to the estate. However, since that never happened, the residuary clause in the will would control the disposition of the house after the life estate ended. Ms. Brown and Ms. Stoval appealed.
On review, the appellate court finds that the will created a life estate for Sharon Johnson. Even though it employed the word “and,” the will did not require all three Johnsons to survive to have a life estate. If at least one lived, the life estate persisted.
No remainder interest belongs to Ms. Brown and Ms. Stoval. Rather than recreating a remainder for Ms. Brown and Ms. Stoval, the will established a contingent fee simple subject to the condition precedent that the Johnsons not survive Ms. Putnam by at least 30 days. Ms. Putnam’s wish for her house to stay in the family was merely a request without binding effect.
Sharon Johnson used the house as her personal residence, fulfilling the requirements of the life estate. For the house to be her personal residence, it need not be her primary domicile. A personal residence is not the same as a primary or principal residence. She could have multiple residences as long as she uses the house. It does not need to be her primary domicile, so she can also rent an apartment.
Finally, Ms. Putnam’s statement that she wanted the house to stay in the family was a precatory desire. It is not mandatory and does not create a remainder for her nieces.
Since Sharon Johnson used the house as her personal residence, the life estate allows her to live there. The court of appeals affirms the trial court’s decision. Ms. Brown and Ms. Stoval have no remainder interest.
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