Wiltshire v. Pollard, 771770

• Decision Date: 11 January 1980
• Docket Number: No. 771770,771770
• Citation: 261 S.E.2d 542,220 Va. 678
• Parties: D. B. WILTSHIRE, Jr., and E. A. Wiltshire, Individually and as Executors of the Estate of D. B. Wiltshire, Deceased v. H. R. POLLARD, III, Individually and Trading as Speaker Pollard and Associates and United Plans Limited Partnership. Record
• Court: Virginia Supreme Court

Page 542

261 S.E.2d 542

220 Va. 678

D. B. WILTSHIRE, Jr., and E. A. Wiltshire, Individually and as Executors of the Estate of D. B. Wiltshire, Deceased v. H. R. POLLARD, III, Individually and Trading as Speaker Pollard and Associates and United Plans Limited Partnership.

Record No. 771770.

Supreme Court of Virginia.

Jan. 11, 1980.

Walter R. Gambill, Richmond (Gambill & Martin, Richmond, on brief), for appellants.

Henry R. Pollard, IV, Richmond (T. Lee Brown, Jr., Parker, Fenderson, Pollard & Press, Inc., Richmond, on brief), for appellees.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

D. B. Wiltshire, Jr., and E. A. Wiltshire, executors and beneficiaries of the estate of their father, Donald B. Wiltshire, deceased, allege that the estate is entitled to one-third of the one-fourth interest of H. R. "Speaker" Pollard, III, in United Plans Limited Partnership. The principal asset of the partnership is a valuable tract of land on Parham Road in Richmond. The commissioner in chancery found in favor of the Wiltshires. His report was set aside by the trial court and final judgment entered for Pollard. We must therefore review the evidence to ascertain whether, under a correct application of the law, the evidence supports the findings of the commissioner or the conclusions of the trial court. Martinsville Bank v. Cobler, 215 Va. 852, 854, 213 S.E.2d 800, 802 (1975); Parkes v. Gunter & Byrd, 168 Va. 94, 98, 190 S.E. 159, 160 (1937).

Speaker Pollard and Donald Wiltshire had worked together in the real estate business from 1919 until Wiltshire's death in 1969, "without a shred of a written agreement or without any discernible pattern of what they were doing or how they were sharing profits, except in the cases of commissions on the sales of real estate, which was their main business," as the chancellor noted. Pollard owned all the stock of Speaker Pollard and Associates, Inc., and made loans to the corporation whenever it needed funds. While occasionally there were other salesmen who worked out of the office, Pollard and Wiltshire by and large conducted the business, which consisted of selling real estate on commission. Wiltshire shared in the commissions, but he received no salary and was regarded as self-employed. The commissions on sales were generally distributed, one-third to Wiltshire and two-thirds to the corporation, although this distribution was sometimes varied. The relationship between the two men, obviously one of affection and mutual respect, continued until the death of Wiltshire. In recent years Pollard suffered from cerebral arteriosclerosis and senility and was unable to testify competently in the case. His attending physician, Dr. Thomas Davis, said: "I don't think the man right now can testify to anything being fact, in my judgment. I'm not sure he could tell you what year it is . . . what street he lives on . . . ." The accuracy of this appraisal of Pollard's condition is apparent from the testimony that he attempted to give before the commissioner.

Pollard's withdrawals of income from the corporation depended upon his personal requirements and were made after payment of the expenses incident to the operation of the business. After Wiltshire's death the decedent's estate was paid his share of commissions on transactions that were pending at the time of his death. The only item in controversy is the "Parham Road transaction."

The background of the Parham Road property involves the Severine G. Leoffler, Sr., family, whose principal business was the design and development of golf courses. Leoffler, Sr., who had developed a close friendship with Speaker Pollard, acquired Richmond property, known as Windsor Court Apartments. His son, Severine G. Leoffler, Jr., testified that during the 1960's his father became enthusiastic over a tract of land in Richmond, and that he met with Pollard many times regarding the property. He said that United Plans, Inc., was organized to acquire and take title to the property from Thomas M. Brooks Lumber Co., Inc. ¹ Two of Leoffler's sons, Severine, Jr and Layne E., and Pollard were the common stockholders, the brothers each owning a three-eighths interest and Pollard a two-eighths interest. The brothers paid $300 each for their stock, and Pollard paid $200. Leoffler, Sr., was the owner of all the preferred stock, then valued at $110,000.

The property was acquired in the following manner: Leoffler, Sr., conveyed his Windsor Court Apartments to United Plans, Inc., in exchange for all the preferred stock in the corporation; United Plans, Inc., then exchanged the Windsor Court Apartments for the Parham Road property owned by the Brooks Lumber Co., and executed its notes to Brooks for the difference in the agreed purchase prices. Simultaneously Brooks sold the apartments to Wayne Freeland, a sale which resulted in $6,525 in realty commissions, of which $3,262.50 was to be paid to Speaker Pollard and Associates, Inc., and the balance to a co-broker. At the time of the sale by Brooks to Freeland, it was necessary for each of the two real estate firms to lend Freeland $5,000 in order for the transaction to be closed. These amounts were ultimately repaid by Freeland. Although Speaker Pollard and Associates, Inc., had not then received in cash its share of the commissions, on May 19, 1961, Pollard personally made Wiltshire a loan or advance of $1,000. On August 31, 1961, Speaker Pollard and Associates, Inc., gave Wiltshire its check in the amount of $1,000, reciting on the face thereof, "payment in full for the Brooks, Leoffler and Freeland Transaction." Wiltshire, in turn, endorsed this check to Speaker Pollard in repayment of the $1,000 loan.

The Wiltshires claim, and the commissioner agreed: that their father should have received $1,087.50 instead of $1,000 for his share of the commissions paid incident to the Windsor Court Apartments sale by Brooks to Freeland; that no commissions were paid at that time on the remainder of the transaction which involved the Parham Road tract; that Wiltshire had a one-third interest in Pollard's one-fourth interest in United Plans, Inc.; and that Wiltshire's claim to further compensation was not forfeited by his acceptance of the $1,000 check with the "in full" notation thereon.

Pollard's position is that Wiltshire was not involved in any manner in the transaction which resulted in the acquisition by the Leofflers of the Parham Road property and the organization of United Plans, Inc., or thereafter the forming of the limited partnership.

Following the death of Donald Wiltshire, his two sons sought to determine the extent of their father's holdings, particularly his entitlement to any unpaid commissions from Speaker Pollard and Associates, Inc., and his interest in the Parham Road property. In March 1970, the Wiltshire heirs were advised in writing by Speaker Pollard that their father's estate was entitled to one-third of all remunerations received by Speaker Pollard and Associates from three specific transactions which he identified. The Parham transaction was not included.

E. A. Wiltshire testified that the arrangement between his father and Pollard called for payment of one-third of all commissions earned by Speaker Pollard and Associates to his father, one-third to Pollard, and one-third to cover office expenses. He had knowledge of the Windsor Court Apartments conveyance to United Plans, Inc., and its subsequent sale to Freeland, and the conveyance by Brooks Lumber Co. of the Parham Road property to United Plans, Inc. He said that his "daddy was very, very proud of the fact that he was involved in this transaction." He testified that his father took him to the Parham Road property on an average of "at least once and most of the time it was twice a month," and that "he (the father) felt so proud that one of these days they would acquire a lot of money from it when it was sold." Wiltshire further testified that he was present in the Pollard office on many occasions when Jack Mann, a salesman then connected with the company, "joked and kidded" his father, saying that when the property was sold his father would realize so much money that they were going to "get him to buy a big Cadillac Fleetwood Sedan." He said Speaker Pollard was present and also "kidded" his father about the money.

This witness testified that after his father's death he found two books in which the deceased had made various notes concerning his private life and also his business activities. On a page, dated May 29, 1962, in one of the books, and in the father's handwriting, is the following note: "If anything happen (Sic ) to me I have an interest in the land back of the Dooley Orphanage, Washington highway. We have 1/4 interest in the profits and I get one-third of this 1/4. This deal was made on the Windsor Court apartments and two homes, and we put all of the commissions in the deal. I am sure Speaker will be fair. I also have 1/3 interest in the jeep. D. B. Wiltshire." On the margin of the page, also in the father's handwriting, is a notation, "Mr. Tom Brooks." Admittedly, this writing refers to the Parham Road property.

The other book, entitled "1967 Year Book," related to commissions that Wiltshire, Sr., had received or expected to receive on various transactions which he and Pollard had made. On a page headed "Sat/Sun, Apr 29-30" is the notation, "land in north Richmond on Parham road we have 1/4 ins (Sic ) I get 1/3 of the fourth."

The Wiltshires also introduced in evidence a diary, kept by their mother, Mrs. Donald B. Wiltshire, who died in 1962. In this book is an entry which reads as follows: "March 30 Washington D. C. Mr. Leftner (Sic ) Mr. Brooks deal Speaker." Again, on April 12, 1961, Mrs. Wiltshire's diary reads: "Washington D. C. Mr. Leftner (Sic ) About Lakeside Land Tom Brooks Speaker."

The plaintiffs testified that after their father's death they discussed the Parham...