Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and 

Millette, JJ., and Russell, S.J. 

VIRGINIA HOME FOR BOYS AND GIRLS OPINION BY 

SENIOR JUSTICE CHARLES S. RUSSELL 

v. Record No. 090010 January 15, 2010 

WILLIAM RAY PHILLIPS, ET AL. 

FROM THE CIRCUIT COURT OF SUSSEX COUNTY 

Sam Campbell, Judge 

 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. Philips 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 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. 

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 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.” 

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 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 died on April 6, 2005. Her will was admitted to 

probate. Except for a few household furnishings, it leaves 

all her real and personal property to the “Virginia Home for 

Boys in Richmond, Inc.” The name of that entity was changed 

in 2004 to Virginia Home for Boys and Girls (the Home) and 

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Phillips does not dispute that it is the proper party in 

interest. 

 Phillips filed a complaint in the circuit court, naming 

the Home and the executrix under Margaret’s will as 

defendants. He seeks imposition of a trust on Margaret’s 

assets and specific performance of the parol agreement he had 

made with the Councils in 1977. Phillips contested neither 

the validity of the will nor Margaret’s testamentary capacity. 

The circuit court heard the evidence ore tenus, considered the 

briefs and arguments of counsel, and by a memorandum opinion 

ruled in Phillips’ favor, finding that his part performance of 

the parol agreement was sufficient to take the case out of the 

statute of frauds and that the existence of the agreement was 

sufficiently corroborated by circumstantial evidence. The 

court entered an order directing transfer to Phillips of all 

of the net personal estate and all of the real property of 

which Margaret had died seized. We awarded the Home an 

appeal. 

Analysis

 Code § 8.01-397 provides, in pertinent part: 

Corroboration required and evidence receivable when 

one party incapable of testifying. – In an action by 

or against a person who, from any cause, is 

incapable of testifying, or by or against the 

committee, trustee, executor, administrator, heir, 

or other representative of the person so incapable 

of testifying, no judgment or decree shall be 

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rendered in favor of an adverse or interested party 

founded on his uncorroborated testimony. 

The Home argues that this provision is fatal to Phillips’ 

claim because the record is devoid of any evidence, aside from 

the testimony of Phillips himself, that the 1977 kitchen-table 

conference ever took place, that any oral agreement was ever 

made between Phillips and the Councils, or, if such an 

agreement was made, what its terms and conditions were. 

Phillips agrees that no written memorandum of the agreement 

was made and that no other witnesses testified to its 

existence, but contends that the circumstantial evidence 

strongly corroborates his testimony. He also points out that 

the circuit court’s findings of fact in his favor are entitled 

to a presumption of correctness and should not be disregarded 

on appeal unless they are plainly wrong or without evidence to 

support them. 

 Code § 11-2 provides, in pertinent part: 

When written evidence required to maintain action. 

– Unless a promise, contract, agreement, 

representation, assurance, or ratification, or some 

memorandum or note thereof, is in writing and signed 

by the party to be charged or his agent, no action 

shall be brought in any of the following cases: 

. . . . 

 6. Upon any contract for the sale of real estate, 

or for the lease thereof for more than a year; . . . 

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This section has repeatedly been held applicable to oral 

contracts to devise real estate. See, e.g., Hill v. Luck, 201 

Va. 586, 589, 112 S.E.2d 858, 860 (1960); Clay v. Clay, 196 

Va. 997, 1004, 86 S.E.2d 812, 816 (1955); Ricks v. Sumler, 179 

Va. 571, 575, 19 S.E.2d 889, 890 (1942). 

 A parol contract to devise land may, however, be taken 

out of the Statute of Frauds by evidence of part performance 

on the promisee’s part. To prevail, the promisee must 

establish: (1) that the parol agreement relied on is “certain 

and definite in its terms,” (2) that his acts of part 

performance were done “in pursuance of the agreement proved,” 

and (3) that the agreement has been “so far executed that a 

refusal of full execution would operate a fraud” upon him. 

Clark v. Atkins, 188 Va. 668, 674-75, 51 S.E.2d 222, 225 

(1949) (quoting Wright v. Pucket, 63 Va. (22 Gratt.) 370, 374 

(1872). See also Moorman v. Blackstock, Inc., 276 Va. 64, 79, 

661 S.E.2d 404, 412 (2008). 

 The Home contends, among other things, that Phillips’ 

evidence fails to take the case out of the Statute of Frauds 

because of lack of competent proof of an agreement. Thus, the 

Home contends, Phillips failed to meet the first two 

requirements of Clark, quoted above. Phillips argues that the 

circumstantial evidence abundantly corroborates the existence 

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of the agreement, its terms, and his performance of all the 

duties it required of him, as the circuit court found. 

 At common law, when one who would have been a party 

litigant had been rendered incapable, by death or incapacity, 

from testifying in his own behalf, an adverse party litigant 

was disqualified as a witness in his own behalf on the ground 

of interest. The Dead Man’s Statute substituted the more 

flexible requirement that the testimony of the surviving 

witness be corroborated in place of the harsh common-law rule. 

Diehl v. Butts, 255 Va. 482, 488, 499 S.E.2d 833, 837 (1998); 

Vaughn v. Shank, 248 Va. 224, 229, 445 S.E.2d 127, 130 (1994); 

Hereford v. Paytes, 226 Va. 604, 608, 311 S.E.2d 790, 792 

(1984). 

 We have, in many cases, considered the nature and degree 

of the corroboration required under this statute. Because the 

statute’s purpose is remedial, the kind and quantity of 

corroboration required depend largely upon the facts of each 

case and no general rule of universal application exists. It 

is well established that corroboration may be shown by 

circumstantial evidence, that not every material point upon 

which the surviving party testifies must be corroborated, and 

that corroboration need not rise to the level of confirmation, 

but need only serve to strengthen the surviving witness’ 

account. Nevertheless, one essential requirement is implicit 

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in all our cases: evidence, to be corroborative, must be 

independent of the surviving witness. It must not depend upon 

his credibility or upon circumstances under his control. It 

may come from any other competent witness or legal source, but 

it must not emanate from him. Leckie v. Lynchburg Trust and 

Savings Bank, 191 Va. 360, 370, 60 S.E.2d 923, 928 (1950); see

also Johnson v. Raviotta, 264 Va. 27, 32, 563 S.E.2d 727, 731 

(2002); Rice v. Charles, 260 Va. 157, 166, 532 S.E.2d 318, 323 

(2000); Martin v. Martin, 202 Va. 769, 774, 120 S.E.2d 471, 

474 (1961). 

Conclusion

 Our review of the record, in light of that requirement, 

discloses no evidence that is independent of Phillips’ 

testimony corroborating the existence or the terms of the 

parol agreement on which he relies. Phillips’ personal 

credibility is not in question, and the circuit court was 

entitled to weigh it and find it persuasive. The requirement 

of corroboration, however, imposed a separate burden upon 

Phillips that is independent of the weight and sufficiency of 

his own testimony. The General Assembly chose to impose that 

burden to replace the heavier burden formerly imposed by the 

common law on a litigant claiming against an opponent 

incapable of testifying. Although the requirement of 

corroboration might sometimes lead to results not intended by 

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parties to an oral agreement, it is evident that the 

legislative judgment was that such occasional unfortunate 

results were preferable to a state of the law in which every 

will would be subject to challenge after the testator’s death 

by a claimant asserting an oral agreement contrary to the 

will’s provisions, based only on the claimant’s self-serving 

testimony. 

 Because Phillips failed to carry the burden of proving 

corroboration imposed upon him by the Dead Man’s Statute, his 

claim also fails to satisfy the Statute of Frauds. As noted 

above, Code § 11-2(6) applies to parol contracts to devise 

land. Part performance may only be relied on to take the case 

out of the Statute of Frauds when the claimant establishes 

that the parol agreement is “certain and definite in its 

terms” and that his part performance was done “in pursuance of 

the agreement proved.” Clark, 188 Va. at 674-75, 51 S.E.2d at 

225. Because of the effect of the Dead Man’s Statute, 

Phillips failed to meet the legal standard for proving either 

the terms of the parol agreement or its existence. 

 We conclude that the circuit court erred in granting 

specific performance of the parol agreement and will 

accordingly reverse the judgment appealed from and enter final 

judgment in favor of the Home. 

Reversed and final judgment. 

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