92 Va. Cir. 170
Surry Cir. Ct.2015Background
- Ashton Little died in 1980; his 1955 deeded tract in Surry County was partly conveyed before death and the remainder was devised by his 1975 will: 1/2 to daughter Bonnie Sue L. Howell and husband, 1/4 to daughter Loretta Dawn L. Nurney, and 1/4 to son James Ashton Little, all subject to the life estate of Cordelia B. Little.
- James Ashton Little married plaintiff Susan West Norris in 1973; they divorced in 1993 and entered a Stipulation and Agreement providing each would receive one-eighth of the proceeds upon sale of the farm (splitting the husband’s 1/4 share).
- The Agreement was incorporated into the final divorce decree. The subject property has never been sold.
- James Ashton Little died intestate in 2008, survived by three children (defendants), who claim the decedent’s 1/4 passed to them by intestacy and that plaintiff has no property interest.
- Plaintiff seeks a judicial declaration and deed conveying an undivided one-eighth interest in the real estate; defendants moved to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff owns an undivided one-eighth interest in the property itself | Agreement entitles Norris to one-eighth of the property (interpreted as an ownership share) | Decedent’s 1/4 passed to heirs on intestacy; no deed to plaintiff; Agreement only creates a right to proceeds | Held: Norris has no undivided one-eighth ownership in the land now; her right is to one-eighth of sale proceeds when sold |
| Whether the property‑settlement right survived decedent’s death | The Agreement (incorporated into divorce decree) vested and survived death | Heirs argue rights extinguished at decedent’s death | Held: Contractual right to a share of proceeds vested at death and survives; heirs bound by Agreement |
| Whether the Agreement’s "sell as soon as practicable" term required plaintiff to enforce sale earlier | Norris says term obligates sale and she need not have litigated earlier because sale was practicable | Heirs argue laches/sleeping on rights for 23 years | Held: Provision conflicts with Will and cannot force sale; plaintiff’s delay is not fatal |
| Proper remedy now (declaration/deed vs. proceeds claim) | Norris seeks declaration and deed for one-eighth interest | Defendants assert remedy is enforcement at sale (share of proceeds) | Held: Court will not declare ownership or order deed; when/if property is sold, plaintiff gets one-eighth of proceeds; order to be recorded |
Key Cases Cited
- Higgins v. McFarland, 196 Va. 889, 86 S.E.2d 168 (Va. 1955) (contractual rights in a property settlement incorporated into a divorce decree survive the husband’s death)
- Smith v. Smith, 3 Va. App. 510, 351 S.E.2d 593 (Va. Ct. App. 1986) (court must determine contract ambiguity; plain language controls)
- Berry v. Klinger, 225 Va. 201, 300 S.E.2d 792 (Va. 1983) (where contract is unambiguous, courts enforce its written terms)
- Great Falls Hardware Co. v. South Lakes Village Center Associates, 238 Va. 123, 380 S.E.2d 642 (Va. 1989) (court must give full effect to parties’ plainly expressed contractual intent)