THE CIRCUIT COURT OF WYTHE COUNTY Josiah T. Showalter, Jr.,
BERNARD GOODWYN, JUSTICE
appeal, we consider whether a power of attorney document
provided an attorney-in-fact with the authority to gift a
principal's real and personal property.
Dickey Davis (Dickey) trained horses for most of his life at
his family's farm in Wytheville, Virginia. In 1993, when
he was in his late forties, Dickey suffered an accident that
left him a quadriplegic.
the accident, on September 25, 1993, Dickey signed a durable
power of attorney document giving his mother, Agnes Davis
(Agnes), the power to
transact for [Dickey], in [his] name, place and stead, all
business for [Dickey] that [he] could do if acting
personally; to endorse checks, write checks, make deposits in
banks or other financial institutions . . . to receive any
monies due [to Dickey] and receipt for the same, to renew any
savings account, certificate of deposit or other time
deposit; to sell and convey any and all personal property
and all real property [Dickey] may own and execute and
deliver an instrument for the same; . . . and to execute
and perform all and every act or acts, thing or things
in law needful and necessary to be done in and about
[Dickey's] affairs, as fully, largely and amply, and
to all intents and purposes whatsoever as
[Dickey] might or could do if acting
personally . . . .
subsequently added an addition to her house to accommodate
Dickey. After returning from the hospital, Dickey moved into
the addition, and Agnes, along with Susan Goforth (Susan) who
is Agnes' daughter and Dickey's sister, began tending
to Dickey's physical and medical needs on a daily basis.
Rae Lee Mills (Rae),  who had been working on the family farm as
an employee, also eventually began to help take care of
April 21, 2005, Dickey executed a will that named Garnett
Davis (Garnett), who is Dickey's brother, as executor.
Under the terms of his will, Dickey bequeathed to Agnes all
of his household furnishings and gave Garnett the proceeds of
the sale of "the property which I inherited from the J.
Garnet Davis Estate." He also gave the sale proceeds
from one of his houses to the Wytheville Presbyterian Church,
and left Rae several parcels of his real estate, his horse
equipment, his trucks, and all money and bank deposits he
held on the day of his death.He left the residue of his estate
to Garnett. Rae, Agnes, Garnett, and Susan were unaware of
the will at the time of its execution.
August 2010, Rae moved into Dickey's home in order to
continue tending to him. In May 2013, Dickey fell ill. He was
hospitalized and subsequently moved to Greystone Healthcare
Center (Greystone), which is a nursing facility in Tennessee.
Between August and October 2013, Dickey suffered brief
periods of confusion because of his illness.
the period that Dickey was at Greystone, Rae and Dickey
contemplated marriage. Without contacting Agnes and without
any of the Davis family present, Dickey and Rae got married
on October 1, 2013, in a closed-door ceremony conducted in
Dickey's room at Greystone. On October 15, 2013, Agnes
learned of the marriage from a friend who noticed that Rae
had changed her last name from Mills to Davis on a popular
social media website.
in October, Dickey's medical condition worsened and he
was transferred to a hospital. On October 25, 2013, Dickey
triggered a "code blue," which indicated that he
was incapacitated and in jeopardy of dying. The hospital
staff informed Dickey's family members, including Agnes,
of Dickey's condition.
October 31, 2013, using the power of attorney Dickey had
given her, Agnes transferred the vast majority of
Dickey's personal property to herself. She also executed
three deeds of gift transferring all of Dickey's real
property to Susan and Garnett. The value of the property
subject to these transfers was over $2 million. Agnes did not
inform Dickey of these transfers. Dickey subsequently passed
away on November 15, 2013.
February 10, 2016, Garnett, in his capacity as executor of
Dickey's will, filed a complaint in the Circuit Court of
Wythe County on behalf of Dickey's estate (Estate). The
complaint requests the circuit court's aid and direction
regarding the validity of Agnes' transfers of
Dickey's property just prior to his death and the
interpretation of Dickey's will; more particularly it
requested interpretation of the phrase "property which I
inherited from the J. Garnet Davis Estate" used in the
will. Susan, Agnes, Garnett in his individual capacity
(collectively, the Family), Rae, and Wytheville Presbyterian
Church are named as defendants in the lawsuit.
circuit court held a bench trial in February 2017 to
determine whether Agnes' transfers of Dickey's
property were validly authorized by the power of attorney
document Dickey signed. At trial, the Family submitted a
November 19, 2015 deposition of Agnes into evidence. In the
deposition, Agnes testified that she learned of Dickey's
will in 2008, but she did not know of its contents. She
stated the will surprised her because Dickey "wasn't
in the mood of giving [his property] to anybody" and
Dickey had previously told her that he wanted his property to
go to the Davis family. She testified that she executed the
transfers of Dickey's property to protect it for Dickey
and to have it in "safer hands" until things
cleared up with his health.
Family also called Burt Honaker (Burt), Rae's son from a
prior marriage, who testified that Dickey gave him a 90-year
lease on one of Dickey's properties in 2008. Burt made a
one-time payment of $1, 000 for the lease, and testified that
he is responsible for and has paid taxes on the leased
property. Burt also testified that, when he sought a loan to
build a barn on the leased property, Dickey allowed the
leased property to be used as collateral for the loan.
also testified on behalf of the Family, stating that he
remembered that Dickey wrote him a check once for $10, 000 as
a gift some time "between 1990 and forward." He
recalled that it "might have been before [Dickey] got
hurt." Garnett admitted that Dickey had never
transferred or given any other property to him.
conclusion of the evidence, the circuit court directed the
parties to submit their closing arguments in written briefs.
In her closing argument brief, Rae contended that
Dickey's power of attorney did not authorize Agnes'
transfers. She argued that Agnes' authority to "sell
and convey" Dickey's property does not include the
power to make gifts. Rae further contended that, even if the
power of attorney authorized Agnes' transfers, Code
§ 64.2-1638(B) limits such gifts to $14, 000 per person
per year, and the value of the property in Agnes'
transfers grossly exceeded that amount. The Family submitted
a brief arguing that Agnes' transfers were valid under
the power of attorney document's grant of authority to
Agnes to "sell and convey" Dickey's property.
13, 2017, the circuit court sent the parties a letter opinion
holding that the property transfers made by Agnes were valid.
It concluded that Agnes was authorized by the language in the
power of attorney to "sell and convey" Dickey's
property, which allowed her to gift Dickey's property.
Additionally, the circuit court concluded the power of
attorney document and Code § 64.2-1622(H) gave Agnes
authority to make gifts in accordance with Dickey's
donative history. The circuit court found that Dickey
"had a personal history of making lifetime gifts,"
which included the 90-year lease to Burt for "little to
no consideration," the collateral he offered to support
Burt's loan, and the $10, 000 Dickey gave Garnett, and
the court found Agnes' transfers of Dickey's real and
personal property were in accordance with that personal
history of lifetime gifts. The circuit court ruled that the
gift-giving limit in Code § 64.2-1638(B)(1) did not
apply to Agnes' Code § 64.2-1622(H) authority.
the circuit court found that Dickey's will was valid. It
concluded that Agnes was aware of the will's existence as
of 2008, but did not know its contents.
November 21, 2017, the circuit court entered an order
awarding judgment in accordance with its letter opinion. The
circuit court also held that, in light of its rulings, the
issue as to the meaning of the phrase "property which I
inherited from the J. Garnet Davis Estate" and any other
remaining issues concerning ...