This chancery cause was filed by the estate administrator, he being one of the heirs-at-law, against the thirteen remaining heirs-at-law in order to obtain court approval to sell estate real property. During the course of the lawsuit, it was discovered that a contest existed concerning the ownership of certain farm equipment that was claimed by both the decedent’s estate and by one of the heirs-at-law. This being a matter in which the Court’s equity jurisdiction enabled it to grant complete legal and equitable relief, the case was expanded to include the personal property dispute.
Charles, the oldest son of the Decedent, testified that after he returned home from the army in the mid 1970s, he entered into an oral agreement with his parents and his oldest sister to provide specific lifetime assistance to his mother and father on their farm. He felt this was necessary because his father had been struck with a debilitating illness. In return for this assistance, he was to receive the use of his parent’s farm equipment during their lifetime and the ownership of it when no one else in the family needed to use it. Other
Pursuant to this oral agreement, Charles built an addition to his older sister’s house so that his parents would have a place to live while their new home was being constructed. He then dug and poured the basement and foundation for their new house, installed the plumbing and electricity, and generally did all of the preparation necessary for the modular home to be installed on his parent’s farm. After its completion, he assisted his parents to move into their new home. That was when he began using his parent’s farm equipment to prepare their garden and harvest it for them. He continued these duties annually, even after his father died in 1986, and through and until the time his mother went into the hospital during her last illness. At that time, the only other relative who lived nearby and occasionally used the farm equipment was Charles’ youngest brother, Ralph. Charles asked him if he ever intended to use the farm equipment again, and Ralph told him that he did not. Charles then took the position that the ownership of that personal property had finally transferred to him. Since then, Charles has purchased the family farm from the estate, where his son now resides, and where the majority of the contested farm equipment is currently located.
The position of Ralph, the Plaintiff estate administrator, is that the original bills of sale for the majority of the equipment show that it was purchased by his father and, pursuant to his father’s will, inherited by his mother. Ralph testified that he was not aware of any agreement to transfer its ownership to his older brother, Charles. He further testified that the equipment normally stayed on the family farm, and he therefore believes it to be part of their mother’s estate. Charles countered Ralph’s assertion that he was not aware of any such agreement by pointing out that Ralph was not even bom when Charles was discharged from the army and that he was a baby when the agreement was made.
Dead Man’s Statute
Upon consideration of the evidence and of the arguments of Counsel, the Court finds that a contract for the transfer of ownership of the farm equipment, based on a contingency, did exist as alleged by Charles. The granting of a
Statute of Frauds
The final issue raised by the parties questions whether the oral contract violates the Statute of Frauds, § 11-2(8), Code of Virginia (1950), as amended, in that the contract was one that “is not to be performed within a year.” While it is true that the terms of the agreement extended over an approximate thirty year term, partial performance of the contract by the party seeking to avoid the bar of the Statute of Frauds, when that partial performance is “consistent with no other theory other than the existence of the alleged oral contract,” is sufficient to defeat such a defense. Williams v. Heller Brothers Realty, 229 Va. 55, 57 (1985). The actions of Charles over the intervening approximately thirty years of building an addition onto his sister’s house for his parents to live in; digging and pouring the basement and foundation for their new house; installing the plumbing and electrical wiring; helping them move; planting and harvesting their garden annually; and repairing and maintaining the farm equipment out of his own pocket more than constitutes the requisite performance.
In addition, although improbable, it is possible that the contract could have been performed within a year. “[Wjhen the agreement is to be performed upon a contingency, and it does not appear within the agreement that it is to be performed after the year, then writing is not necessary, for the contingency might happen within the year.” Silverman v. Bernot, 218 Va. 650, 656 (1977). Since the oral agreement could have been performed within a year, it was a