(Posted December 5, 2019) The Supreme Court of Virginia today decides Davis v. Davis, involving the question whether a power of attorney granted the attorney-in-fact the power to give away all of the maker’s property. The maker granted to his mother the power to “sell and convey any and all personal property and all real property” that he owned and to “execute and perform all and every act or acts …  to all intents and purposes whatsoever as [her son] might or could do if acting personally ….”

Twelve years later, the son made a will leaving his property to various family members, to a church, and to a family employee who performed some caretaking tasks for him. The mother knew that the will existed, but didn’t know what it provided.

Another eight years later, the son fell ill. The family placed him in a nursing facility. On October 1 of that year, the son married the family employee in what today’s opinion describes as a closed-door ceremony, presumably with no family members present or even aware of the wedding. The mother found out two weeks later.

The son’s condition worsened to the point that he was moved to a hospital. On the 25th day of his marriage, he became “incapacitated and in jeopardy of dying.” On the 31st day of his marriage – we’re now up to Halloween – the mother transferred most of her son’s personalty to herself and executed deeds of gift conveying his real estate to her other two children. She didn’t tell her son about these transfers, the value of which exceeded $2 million. The son died 15 days later.

Back to the will: The son’s brother found himself in what may have been an uncomfortable dual position. In addition to being the grantee on a deed conveying real property, he was also the executor of his late brother’s will. He sensibly filed a petition seeking the aid and direction of the court to sort out the legality of his mother’s gifts. The trial court ruled that they were indeed legitimate, considering the expansive language of the power of attorney and the decedent’s history of giving property away during his lifetime.

Except, the Supreme Court rules today, the language wasn’t so expansive and there was no such history. The Uniform Power of Attorney Act requires an express grant of authority to make gifts, and you won’t find that word in the language I quoted above. The mother argued that the phrase sell and convey equated to the power to make gifts, because a gift is a form of conveyance. But interpreting the phrase narrowly, the justices today rule that this only gives the power to convey property for money. Reading the phrase the way the mother urged would convert it into “sell or convey,” and the court declines to edit the document in this way.

As for a history of giving, the court considers the three events of which the trial court received evidence. In the first two, the son had made a 90-year lease of land, for a one-time payment of $1,000, to the son of his late-in-life wife, and allowed that man to use the land as collateral for a loan to enable him to build a barn on it. But that’s not a gift, no matter how low the rental payment was; and besides, the owner got the benefit of a new barn on his land. The tenant also paid real estate taxes on the land for many years. That makes the transaction a contract, not a gift.

Similarly, the trial court heard that the maker had once, many years earlier, given $10,000 to his brother, the executor. The justices today rule that that’s different in character from giving away all of one’s property; and in any event it was just one gift, not a pattern of giving.

The court thus reverses and remands the case for a fuller construction of the will. Today’s opinion fills in at least one gap in our jurisprudence; as the court notes, “There is little Virginia case law interpreting the phrase ‘sell and convey.’” Practitioners who seek to cite this case need to be aware of the interpretive context, though; here, the court was required by statute to construe the term strictly and narrowly. In another context – ordinary contract interpretation, for example – a different rule of construction might apply. But in my view, this ruling is entirely correct within the realm of powers of attorney.