Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Koontz, JJ., and Whiting, Senior Justice

OWEN B. PICKETT, EXECUTOR UNDER THE
WILL OF H. CALVIN SPAIN, DECEASED
                    OPINION BY JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 961958         June 6, 1997

SUSAN C. SPAIN

    FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
             J. Warren Stephens, Judge Designate


     In this appeal, we consider whether the doctrine of

election prevents a beneficiary named in a will from

asserting a right of contribution arising from her payment

of debts she and the testator owed at the time of the

testator's death.
     The litigants stipulated the following facts.     H.

Calvin Spain died testate on December 4, 1992.   The

beneficiaries of his will and a trust, both executed on

November 17, 1992, were his widow, Susan C. Spain, and three

children from a previous marriage.

     The will directed the executor, Owen B. Pickett, to pay

the testator's "just debts, excluding any mortgage

indebtedness on [the] home for which [his] wife and [he] are

jointly liable, even though [his] home passes to her by

survivorship. . . ."   The trust agreement contains the

following provision:
          "In the event that the intangible personal
     property passing as part of the Residuary Estate
     under the Grantor's last will and testament is not
     sufficient to pay all the Grantor's debts
     (excluding any debt secured by deed of trust or
     other lien upon the real estate constituting the
     Grantor's residence for which the Grantor and his
     wife are jointly liable) . . . then the Trustee
     may pay out of the Trust Fund to the Grantor's
     personal representative such amount as, when added
     to the intangible personal property available to
     the Grantor's personal representative from
     property passing as part of the Grantor's
     Residuary Estate under his Will, will be
     sufficient to pay in full all such debts,
     expenses, legacies, costs and taxes, subject to
     instructions hereinafter set forth."


     Under the will, the decedent's tangible personal

property was vested in his children, but the wife had the

"nonassignable personal exclusive right to the use in [the

marital] home of all [the decedent's] furniture and

furnishings in [the] home for so long as she lives and does

not remarry."
     The remainder of the decedent's personal property was

left to his executor as trustee under the trust agreement.

Among other things, the trust agreement created a residuary

trust which included tangible personal property and the

remaining assets of the estate following payment of debts.

The trust agreement authorized the trustee to "use the

diverted funds [income on the Residuary Trust] as necessary

to protect the value and ownership of the [marital]

residence until the same can be liquidated in a reasonable

time and in the reasonable course of business."   In

conformity with that direction, the trustee paid $32,636.30

from the trust for monthly mortgage payments and insurance

and maintenance for the marital residence.

     In 1982, Mrs. Spain purchased and took title to the

marital residence with $110,000 of the proceeds from the

sale of her former residence.   Subsequently, she executed a
deed of gift conveying the marital residence to her husband

and herself as tenants by the entirety with rights of

survivorship.   To fund certain obligations of the husband,

the Spains executed notes secured by deeds of trust upon the

marital residence, which were satisfied after the husband's

death when Mrs. Spain sold the former marital residence.

The balance of the notes at the time of satisfaction was

approximately $246,729.
     By letter dated June 23, 1993, Mrs. Spain informed the

executor that she was entitled to contribution from the

estate for one-half of the mortgage indebtedness for which

she and the testator were jointly obligated.   The executor

refused to honor her claim and asserted that she could not

recover contribution from the estate because she had

purportedly elected to receive certain benefits pursuant to

the terms of the will.    Mrs. Spain challenged the executor's

accounting before the commissioner of accounts, who approved

the accounting as submitted by the executor.   Mrs. Spain

filed exceptions to the commissioner of accounts' report

with the chancellor, who sustained her exceptions and

awarded her contribution.   The executor appeals.

     The executor argues that Mrs. Spain is not entitled to

receive contribution for her payments in satisfaction of the

mortgages because she voluntarily elected to accept benefits

under the will and trust.   We disagree.

     We have discussed the doctrine of election on several

occasions.
     "[I]n order to make a case of election it is
     equally well settled that the intention of the
     testator to give that which is not his own must be
     clear and unmistakable. It must appear from his
     language, which is unequivocal and which leaves no
     room for doubt as to the intention of the
     testator. Penn v. Guggenheimer, supra. . . . It
     is not necessary that such intention should be
     expressly declared, but it may be gathered from
     the whole and every part of the instrument. But
     the will must be reasonably construed, even where
     by so doing the parties are put to an election.
     Penn v. Guggenheimer, supra. . . ."


Waggoner v. Waggoner, 111 Va. 325, 328, 68 S.E. 990, 991-92

(1910); accord Johnson v. McCarty, 202 Va. 49, 57-58, 115
S.E.2d 915, 921 (1960); Penn v. Guggenheimer, 76 Va. 839,

846 (1882); Gregory v. Gates, 71 Va. (30 Gratt.) 83, 89-90

(1878).

     Here, the doctrine of election simply has no

application.   Mrs. Spain has a common law right of

contribution against the estate of the testator because she

was a co-maker of the notes which were secured by deeds of

trust on property owned jointly by co-makers with the right

of survivorship.     See Brown, Adm'r v. Hargraves, 198 Va.

748, 751, 96 S.E.2d 788, 791 (1957).     See also Code § 8.01-

11(B).    The testator did not use language in his will or his

trust which evinces a clear intention to require Mrs. Spain

to make an election between her right of contribution and

any benefit she may receive under the will.

     For the foregoing reasons, we will affirm the judgment

of the chancellor.

                                                      Affirmed.
