In re Estate of Tucker

32 Va. Cir. 373, 1994 Va. Cir. LEXIS 818
CourtPage County Circuit Court
DecidedFebruary 17, 1994
StatusPublished

This text of 32 Va. Cir. 373 (In re Estate of Tucker) is published on Counsel Stack Legal Research, covering Page County Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Tucker, 32 Va. Cir. 373, 1994 Va. Cir. LEXIS 818 (Va. Super. Ct. 1994).

Opinion

By Judge Perry W. Sarver

This matter comes before the Court pursuant to the provisions of Code § 26-33, for review of exceptions to the report of Dale W. Houff, Assistant Commissioner of Accounts of this Court (Commissioner), rejecting claims filed on July 4, 1991, by Marjorie Tucker and her husband, Boyce Tucker (Claimants) against the estate of Elva W. Tucker. Elva W. Tucker (Decedent) died on May 4, 1991. The hearing on debts and demands, conducted pursuant to the provisions of Code § 64.1-171, et seq., was held on August 14, 1992, having been continued by agreement of counsel from June 19, 1992.

The Commissioner filed his report on February 16, 1993, and Claimants filed their exceptions on March 1, 1993.

The proceedings before the Commissioner were not recorded so this Court’s review is limited to his report, the exhibits filed therewith, the memoranda of counsel filed with the Commissioner prior to the debts and demands hearing, and the memoranda that counsel filed in this Court.

Counsel first inquired if this Court wished to hear any further evidence in this matter. It appears to be in the trial court’s discretion as to whether further evidence will be presented to the court for consideration, and if so, such evidence may be heard, either ore tenus or by a jury, and such hearing is not a trial de novo. Morris v. United Virginia Bank, Exec., 237 Va. 331, 337, 377 S.E.2d 611 (1989).

Claimants’ exceptions to the Commissioner’s report contained six different grounds. In framing his exceptions, counsel failed to follow the dictates of Perrow v. Payne, 203 Va. 17, 23 (1961), which held that while no particular form or formality is required, the exceptant must specify with reasonable certainty the particular grounds of the objec[374]*374tion relied on. More specificity by Claimants would have been helpful to the Court.

Counsel excepted on the grounds that Commissioner:

1. Erred in his conclusion, on page 7, in disallowing the claim of $37,889.00.

2. Misconstrued portions of the evidence as to the express contract for services rendered by Claimants.

3. Erred in concluding, on pages 4 and 5, that the amount of service rendered is quite unclear and uneven.

4. Erred in concluding that it would be extraordinarily difficult to determine an amount due on a quantum meruit basis after concluding that they could recover on such basis.

5. Erred in concluding that Decedent felt she had fully compensated Claimants.

6. Erred in concluding that Claimants failed to provide sufficient corroboration.

The foregoing reasons, or grounds, tell the Court little about Claimants’ reasons for noting the particular exceptions.

With respect to the fourth exception, a quantum meruit theory of recovery, Commissioner did not hold that Claimants were entitled to recover on these grounds. His finding was that if they could prove a contract for services rendered, but not an agreed-upon amount for such services, then there could be a recovery on quantum meruit, though proof of the value of such services would be difficult.

The evidence presented in support of their claim was as follows:

1. Calendars for 1988, 1989, 1990, and 1991, presented by Claimants, showing dates on which they allege services were performed.

2. A statement from Robert R. Donlan, Esq., counsel for Claimants, directed to the Commissioner of Accounts of Page County setting forth a total claim of $37,889.00. Cl. Ex. 1.

3. Two letters signed by Decedent. Cl. Ex. 2 and 3.

4. Cancelled checks for the period 1986 to 1990, some of which were payable to Marjorie and Boyce, and in some instances, to either of them individually totaling approximately $3,400. The checks were offered by the Estate. Exec. Ex. 3.

5. A letter to Decedent dated August 11, 1987, from Marjorie. Exec. Ex. 1.

The Supreme Court has stated on numerous occasions that “while the report of a commissioner in chancery does not carry the weight of [375]*375a jury’s verdict, Code § 8.01-610, it should be sustained unless the trial court concludes that the commissioner’s findings are not supported by the evidence.” Hill v. Hill, 227 Va. 569, 576-77 (1984); Morris v. United Virginia Bank, Exec., etc., 237 Va. 331, 337 (1989). The commissioner’s report came to this Court armed with a presumption of correctness. Id. 338. The burden of proof is upon the Claimants. Code § 8.01-397 provides, in part, that:

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 rendered in favor of an adverse or interested party founded on his uncorroborated testimony.

As stated by the Supreme Court in Timberlake’s Adm’r v. Pugh, 158 Va. 397 (1932), when considering the sufficiency of the corroborating evidence:

[ijt is not possible to formulate any hard and fast rule but must “leave each case to be decided on its own peculiar facts and circumstances.” Burton’s Ex’r v. Manson, 142 Va. 500 (1925); Davies v. Silvey, 148 Va. 132, 138 S.E. 513 (1927); Ratliff v. Jewell, 153 Va. 315 (1929). Confirmation is not necessary for that removes all doubt, while corroboration only gives more strength than was had before. Crabb’s English Synonyms. Circumstances alone are sometimes sufficient. Rogers v. Rogers.

89 NJ.Eq. 1, 104 A.2d 32; id. at 402.

The Court went on to say in Pugh that:

Clearly, it is not necessary that the corroborative evidence should of itself be sufficient to support a verdict, for then there would be no need for the testimony sought to be corroborated. Burton’s Ex’r. v. Mamon, supra; Davies v. Silvey, supra; id. at 403.

Corroborating evidence is such evidence as tends to confirm and strengthen the testimony of the witness sought to be corroborated — that is, such as tends to show the truth, or the probability of its truth. Varner v. White, 149 Va. 177, 185, 140 S.E. 128, 130 (1927); Burton’s Ex’r v. Manson, supra; Davies v. Silvey, supra. Such evidence.need not emanate from other witnesses but may be furnished by surrounding [376]*376circumstances adequately established. Martin v. Martin, 202 Va. 769, 774, 120 S.E.2d 471, 475 (1961); Arwood v. Hill’s Adm’r, 135 Va. 235, 242, 117 S.E. 603, 605 (1923); Leckie v. Lynchburg Trust, etc., Bank, 191 Va. 360, 370, 60 S.E.2d 923, 928 (1950). Nor is it essential that an adverse or interested party’s testimony be corroborated on all material points. Rorer v. Taylor, 182 Va. 49, 53, 27 S.E.2d 923, 925 (1943); Morrison v. Morrison, 174 Va. 58, 66,

Related

Brooks v. Worthington
143 S.E.2d 841 (Supreme Court of Virginia, 1965)
Hill v. Hill
318 S.E.2d 292 (Supreme Court of Virginia, 1984)
Martin v. Martin
120 S.E.2d 471 (Supreme Court of Virginia, 1961)
Perrow v. Payne
121 S.E.2d 900 (Supreme Court of Virginia, 1961)
Leckie v. Lynchburg Trust & Savings Bank
60 S.E.2d 923 (Supreme Court of Virginia, 1950)
Morris v. United Virginia Bank
377 S.E.2d 611 (Supreme Court of Virginia, 1989)
Arwood v. Hill's Administrator
117 S.E. 603 (Supreme Court of Virginia, 1923)
Burton's v. Manson
129 S.E. 356 (Supreme Court of Virginia, 1925)
Davies v. Silvey
138 S.E. 513 (Supreme Court of Virginia, 1927)
Varner v. White
140 S.E. 128 (Supreme Court of Virginia, 1927)
Ratliff v. Jewell
149 S.E. 409 (Supreme Court of Virginia, 1929)
Timberlake's Administrator v. Pugh
163 S.E. 402 (Supreme Court of Virginia, 1932)
Morrison v. Morrison
4 S.E.2d 776 (Supreme Court of Virginia, 1939)
Rorer v. Taylor
27 S.E.2d 923 (Supreme Court of Virginia, 1943)

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Bluebook (online)
32 Va. Cir. 373, 1994 Va. Cir. LEXIS 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-tucker-vaccpage-1994.