Timberlake's Adm'r v. Pugh

• Decision Date: 24 March 1932
• Citation: 163 S.E. 402
• Parties: TIMBERLAKE'S ADM'R. v. PUGH.
• Court: Virginia Supreme Court

163 S.E. 402

TIMBERLAKE'S ADM'R.

v.PUGH.

Supreme Court of Appeals of Virginia.

March 24, 1932.

Error to Circuit Court, Norfolk County.

Action by Kate R. Pugh against David Edward Timberlake's administrator. Judgment for plaintiff, and defendant brings error.

Affirmed..

Argued before CAMPBELL, C. J., and HOLT, EPES, HDDGINS, GREGORY, BROWNING, and CHINN, JJ.

W. R. Ashburn, of Norfolk, for plaintiff in error.

Tom E. Gilman, of Portsmouth, for defendant in error.

HOLT, J.

This is an action for damages suffered through a broken contract, in which the plaintiff has recovered a verdict and judgment.

David Edward Timberlake was an old bachelor who lived in Norfolk county, and who was worth about $700. His estate consisted, in the main, of a house and lot. In 1925, being in poor health, he took to live with him Mrs. Kate R. Pugh, plaintiff in the court below, and her four children. Mr. Timberlake was to give her and her children a home, in return for which she was to cook, wash for him, wait on him, look after his fowls, and help him with a small garden, tinder this agreement she moved into his home in 1925, and continued there until February, 1929, when, due to some disagreement, she left. On March 10, 1929, she returned to his home. As an inducement, Timberlake promised that if she would serve him as she had theretofore done, he would will her his house and lot. Pursuant thereto she did return, and continued to serve him until his death in August, 1929. Timberlake left no will, hence this motion.

[f] The facts are not in dispute. It is certain that she went to live with him in 1925, left him in 1929, shortly thereafter returned, and continued to live there until his death, serving him faithfully. From her evidence these are the conditions under which she came back:

"Timberlake promised that if she would return to his home and serve him in her former capacity during the remainder of his life, he would will her his property, consisting of the house and lot in which the parties were to live, and that she should have the same at his death; that pursuant to said promise she did return on March 10, 1929, and continued in her former capacity until his death, about four months thereafter. The witness further testified that after her return to Timberlake's home he suffered from frequent attacks of asthma, and could do hut very little work, and she cooked the meals, cleaned the house, tended the garden, served the deceased in his last illness, and paid one or two small grocery accounts, the cost of necessary medicine and one year's taxes out of monies which she earned from the sale of poultry raised on the place, and by certain housecleaning work performed by her in the community."

This evidence, narrative in form, amply establishes the contract, but to sustain a recovery it must be corroborated. Code, § 6209.

Two facts, which are of some weight, immediately present themselves. Mrs. Pugh lived with Mr. Timberlake for about four years and left him for reasons satisfactory to herself, but in a short time returned. It is not unreasonable! to assume that this was due to some added inducement. She did return and lived with him until he died the following August. In this period she paid one year's taxes. This she would probably not have done unless she believed that she had an interest in the real estate. It is true that she has here not been corroborated, but it is not necessary that she be corroborated on every point. Burton's Ex'r v. Manson, 142 Va. 500, 129 S. E. 350, 359; Ratliff v. Jewell, 153 Va. 315, 149 S. E. 409, 67 A. L. R. 1541.

R. A. Cordell was a neighbor and justice of the peace. He testified that "some months prior to his death, the exact date of which the witness could not recall, Timberlake called at his office and stated that he would like to have a will drawn leaving all of his property to Mrs. Pugh; that he advised deceased that he was not in a position to draw wills and suggested that an attorney be consulted."

W. H. Starkey, a Norfolk lawyer, said that in June, 1929, "Timberlake called upon him and stated that he would like to have a paper drawn conveying his property to Mrs. Pugh. That Timberlake was not very clearas to whether he wished a will prepared or a deed drawn; that nothing was said.about any obligation to convey or devise the property to Mrs. Pugh; that witness was under the impression that deceased was to see him further about the matter and had expected to prepare the document, and upon hearing of the death of deceased he felt badly about the matter. Witness further testified that the plaintiff, Mrs. Pugh, so far as he knew, served the deceased as housekeeper and cook, and attended him in his last illness."

S. S. Spires heard Timberlake say that he did not want his relatives to have any of his property. Decedent left a brother and a nephew, Arthur Dowdy, son of a deceased sister. Their testimony is that they were on friendly terms with him, but their relationship did not seem to be particularly intimate. Mrs. Dowdy, wife of the nephew, said that decedent told him shortly before his death that he arranged to get a new housekeeper because he could not bear to have the Pugh children in the house any longer.

This conflict has been settled by the jury's verdict.

On the general subject of corroboration it may be said that when evidence introduced is of probative value, its sufficiency should be submitted to the jury. If it has none, it should be stricken out. Riddleberger v. Commonwealth, 124 Va. 7S3, 97 S. E. 310; Varner v. White, 149 Va. 177, 140 S. E. 128. If the testimony is relevant, it must remain.

Decedent approached two gentlemen, one of them a justice of the peace and neighbor, the other a Norfolk lawyer, and asked each of them to draw a will conveying this property to Mrs. Pugh. The justice of the peace advised him that it would be wiser to have some lawyer do this work. Acting on this advice, he went to see a lawyer, made of him substantially the same request, but was put off, and died before the work was...