Virginia Home for Boys & Girls v. Phillips

• Decision Date: 15 January 2010
• Docket Number: No. 090010.,090010.
• Citation: 688 S.E.2d 284,279 Va. 279
• Parties: VIRGINIA HOME FOR BOYS AND GIRLS v. William Ray PHILLIPS, et al.
• Court: Virginia Supreme Court

688 S.E.2d 284 279 Va. 279 VIRGINIA HOME FOR BOYS AND GIRLS
v.
William Ray PHILLIPS, et al. No. 090010. Supreme Court of Virginia. January 15, 2010.

[688 S.E.2d 285]

Christopher E. Gatewood (Sheila deLa Cruz; Hirschler Fleischer, on briefs), Richmond, for appellant.

James F. Andrews (Shell, Johnson, Andrews & Baskervill, on brief), Petersburg, for appellee William Ray Phillips.

No brief filed by appellee Brenda Council Turley.

Present: KEENAN, KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and RUSSELL, S.J.

OPINION BY Senior Justice CHARLES S. RUSSELL.

This is a dispute between a devisee under a will and a relative of the testator claiming under an oral agreement. It involves the "Dead Man's Statute," Code § 8.01-397, and the Statute of Frauds, Code § 11-2.

Facts and Proceedings

In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the prevailing party at trial. William Ray Phillips (Phillips) grew up in Sussex County. He lived with his parents about a mile away from the farm of Wayland and Margaret Council. Wayland Council (Wayland) was Phillips' uncle. At the age of ten, Phillips moved to the Council home and lived with them, helping with the farm work, until he graduated from high school. The Councils had no children and Phillips was described by another relative as "the closest thing they had to a son." Phillips went to college after high school. In 1970, shortly after finishing college, he was employed by a tobacco company in Petersburg. Thereafter, he married and lived with his wife in a home they acquired about five minutes away from his place of employment.

In 1977, Phillips' uncle Wayland asked him to come to the Councils' farm in Sussex County to discuss a proposal. During a conference at the Councils' kitchen table, both Councils were present but Wayland "did ... most of the talking." He proposed that Phillips move to the farm where the Councils would sell him a parcel of land on which to build a home for his family. Phillips would then work on the farm, assisting his uncle until 1980, when Wayland planned to retire. Thereafter, Phillips would take over the farming operation, paying rent to the Councils for the land, machinery and farm equipment, and a wage to Wayland for any farm work he might do. Phillips was also to be

688 S.E.2d 286

available for any business or personal help the Councils might need in their later years. In return, Phillips testified, the Councils promised to leave him whatever assets they had, real or personal, when the last survivor of them died. Phillips testified that he agreed to this proposal, understanding that the Councils might consume all their assets while living and that he could ultimately receive "everything or nothing, whatever was left in their estate was to go to me." The agreement was entirely oral and no written memoranda of it existed. Only Phillips and the Councils were present at the conference.

In reliance on the agreement, Phillips sold his home, purchased 1.618 acres of the farm from the Councils, took out a construction loan, built a new home on the lot and moved there with his family, which now included a three-year-old son. Phillips continued to commute to his job at the tobacco company in Petersburg from 1977 until his uncle retired in 1980, adding about 40 miles per day to his travel to and from work. He also helped his uncle with farm work.

In 1980, when Wayland retired, Phillips took over the farming operation. He paid rent to the Councils for the farm land and equipment, paid wages to Wayland and assisted the Councils with their affairs. In 1980, Phillips' first year of farming operations, the area experienced a severe drought. In order to pay expenses for that year and to have "start-up money" for the next, Phillips borrowed $30,640 from a federal agency to be repaid over 20 years, secured by a second deed of trust on his home. The Councils were not liable for this debt. Phillips repaid the loan in 2001.

Wayland died in 1982. His will left all his property to his wife but provided that if she predeceased him, his entire estate would go to his nephew, Phillips. Phillips testified that Margaret Council (Margaret) showed the will to him when they went to the clerk's office to offer it for probate and told him "mine is just like it."

In 1987, the plant in Petersburg was closed. The tobacco company, however, offered Phillips an opportunity to transfer to another plant in Georgia. Phillips declined the offer because he would be unable to fulfill his agreement with the Councils if he moved. He was compelled to accept a position in Hampton with a considerably lower salary and benefits that required him to travel 100 miles per day to and from work.

After Wayland died, other witnesses testified that Margaret became "angry ... that he died," "very eccentric," "very reclusive," and "would change her mind from one day to the next on what she was going to do." Phillips testified that her attitude toward him changed. "She had become a little more reclusive. Wanted to be by herself more. Wanted to make decisions on her own." She gave Phillips a durable power of attorney in 1992, but in October 1996 Phillips received a letter from her attorney advising him that she had "made some changes in her estate plan." The letter enclosed a revocation of Phillips' power of attorney.

Margaret...