# FILED

Novemb er 12, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTER N SECTION AT J ACKSON

______________________________________________________________________________ IN RE: Henderson Chancery No. 896 0 C.A. No. 02A0

1-9611-CH-00270 JEWELL MANESS, Plaintiff, Hon. Joe C. Morris, Chancel lor v. ESTATE OF

ACIE LEE MANESS, Deceased; JAMES LEE MANESS, WILLIE MANESS & EDW ARD MANESS, Defendan ts. THOMAS ANDERSON, Lexington, At torney fo r Plaintiff. STEPHEN MILAM, Le xingt on, At torn ey for

Defenda nts. REVERSED AND REMANDED Opinion filed:

______________________________________________________________________________ TOMLIN, Sr. J. Mrs. Jewell Maness (“Pl ainti ff”) as administratr ix of the estat e of Acie Lee Maness, her deceas ed husband, f iled apetition in the Chancery Court of Henderson Cou nty seeking to set aside or vo id a fraudulen t convey ance. N am ed defen dants w ere the est ate, along with J ames Lee M aness, W ill ie Maness and Edward Maness, the three sons of pl ainti ff’s deceased husba nd, who were the gra ntees under a warranty de ed executed by A cie Lee M aness du ring his life- time. Plaintiff’s m otion for sum m ary judgment was overrul ed, whereupon the case went t o tri al. Following a hearing, the chancell or dismiss ed plai ntif f’s petiti on. On appeal the sole i ssue for our consi derati on is whetheror not the chancell or err ed in dis missing pla inti ff’s petition. We are of the opinion that the tri al court did err . Accordingl y we reverse and r emand. Most if not al l of the material facts are undis puted. Plaintiff and Acie Lee M anes s we re m arried in Feb ruary 197 5. Th ey rem ained m arried u ntil his de ath in Aug ust 1993 . At the tim e of the m arriage her de ceased h usband was the own er of a farm, conta ining appr oximately 330 acr es, l ocated i n Henderson County, on which he and h is three s ons b y a pr eviou s m arriage kept th eir indiv idual h erds o f cattle. T his farm is the real estate that is the subject of this litigation. During the time th at they w ere2

married both pa rti es worked outsi de the home. Plai ntif f was employed at Brown Shoe and Magnetek and her lat e husband was employed by the City of Lexingt on. The parties’ e njoy ed ge nerally a goo d relatio nship durin g their m arriage . The only diffe ren ces of a ny s ubs tanc e aro se fro m how their resp ectiv e inc om es w ere to be s pen t. As a general rule pla inti ff spent her money on the househol d bill s, ut ili ties , groceries and the l ike and as ageneral rule Acie Lee M aness spent his money on the farm for such it ems as buying far m equipm ent, catt le, sowing pastur es, f eeding t he catt le and

m aking im provem ents on the farm such as fen cing, dozer w ork and the building o f a catfi sh lake. The farm was m ortgaged fo r almo st the entire period of tim e the parties w ere
m arried. D uring the pe riod o f their m arriage , Acie Lee M anes s m ade re gular p aym ents of principal and interest on the no te secured b y the m ortgage. In po int of fact, plaintiff test ifi ed thather husband r efused t o pay any of the household expens es because he contended that al l of hi s income was needed to pay the farm expenses. Acie Lee Maness paid off the mortgage in the fall of 1992. Ac ie L ee M ane ss ac qui red this f arm in se par ate p arce ls pri or to their m arria ge. A portion of

the farm had been inherit ed by him from m embers of his f amily. Other parts of the farm were p urchased by him from either relatives or a neigh bor. The record refl ects that Acie Lee Maness spentmuch of his fre e time on the f arm. Most of the time h e m aintained a he rd of cattle on the farm , amo unting to 50 or m ore head . In additio n, eac h of h is sons kept a sm all num ber o f cattle on the farm as w ell. From time to time ea ch of the so ns wo uld assist their father in doing som e of the farm

m ainte nan ce. It was acknowledge d that Aci e Lee Maness was in charge of the operat ion of the farm and w as respons ible for paying the property tax es on it. Jam es and E dwa rd M ane ss o n a f ew occ asio ns g ave their fath er $ 100 to b e ap plied to th e pr ope rty ta xes . At diff erent times during hi s ownership of the farm A cie Lee Maness deeded each of his sons an approximate ei ght (8) acre par cel of l and at t he edge of t he farm. Two of the sons t esti fied that the ir f ather ha d promised them since they were young chil dren that t hey wo uld hav e the farm som e da y.3 Plaintiff te stified tha t appro xim ately tw o w eeks prior to her h usba nd’s d eath Acie Lee Maness told herthat s he was to rece ive a chi ld’s part of the farm and request ed thatshe arr ange for an a ttor ney to come to thei r home to “fix the farm up.” Sh e sta ted th at he nev er re gain ed e nou gh p hys ical s tren gth how eve r to b ring this a bou t. She furt her tes tif

ied tha t Acie Lee Maness tol d her that if hi s sons gotthe farm that they

wo uld hav e to p ay f or it. The record i s uncontr adict ed thatat no ti me during the marria ge of the pa rti es and priorto the de ath of Acie Lee M aness di d plaintiff have any knowledge of the exist ence of a warra nty deed by which Acie Lee Maness had transfe rred t itl e to the farm in question. A cie Lee M aness died on or ab out Au gust 19, 19 93. Plaintiff test ifi ed thaton Sunday afternoon or Monday following t he burial of her husba nd on Saturday Edw ard M aness told he r about the d eed. She was d irected to the R egister’s Office of Henderson County, where s he discover ed thata warranty de ed signed by her late husband and date d June 14, 1984 had bee n recorded on August24, 1993. The deed conveyed ti tle t o his three sons, subject to a li fe est ate bei ng retai ned by Acie Lee M anes s. This wa s the first k now ledge plaintiff h ad tha t the farm in qu estion w as no t a par t of A cie L ee M ane ss’ e state . The origi n of the warr anty deed i n questi on was supplie d by the te sti mony of Steve Beal, a local attorney who prepared t he deed, submit ted by aff idavit , as well as the aff idavit and live test imony of Belinda Maness, the wife of Will ie Maness and a certifi ed court reporter i n this area for many years. She testif ied that Acie Lee M aness contact ed her and re quested that she r ecomm end a good att orney to dr aw up the deed, whereupon she advis ed him that any attorney i n town could accomplis h this . Some time therea fter, Stev e Be al con tacted her an d req uested that she get tw o per sons to witness the execution of a deed by Acie Lee M aness. Thereafter, she, Acie Lee M aness and his attorne y m et at the hom e of friends of h ers, M ike and S andra Jon es, where M r. Maness executed the de ed conveying the farm to his three s ons. The acknowledgment of the exe cution of

the deed was t aken by att orney Beal. There were no si gnatures of eithe r M r. or M rs. Jo nes iden tifyin g th em as w itnes ses to this tr ans actio n. Later that aft ernoon, ac cording t o Belinda Maness, Acie Lee M aness came to her4

home. After Willi e Maness, her husband, arri ved, Acie Lee Maness pres ented t he deed to Willi e Maness with speci fic i nstruc tions that he , Acie Lee Maness, di d not want anyone to know about it. Thereupon W illi e M aness gave the deed to Belinda M aness and instructed he r to “t ake thi s and put i t in the lock box”, which she did, and there the dee d re m aine d un til afte r the dea th o f A cie L ee M ane ss. Both Ed M aness and Ja mes M aness t esti fied that the fir st knowledge that each of them had about the de ed to the ir f ather’ s farm was after

their father ’s death. Beli nda Maness testi fied that the deed was never di scussed i n the pres ence of t he plai ntif f and that s he was the one who retrieved the deed from the l ock box foll owing the death of Ac ie L ee M ane ss. Plaintiff ’s pet iti on to setaside the conveyance as bei ng fraudul ent was fi led pursuant to the provisi ons of T.C.A. § 31-1-105 w hich reads as follows: Any conveyances made fraudulently to chi ldren orothers , with a n intent to defe at the su rviving spou se of h is distribu tive or e lective s hare, is voidable at the elect ion of the survi ving spouse. Cases which have pre viousl y dealtwith thi s iss ue make it cle ar that the grava men of this action is wh ether or not the h usband intended to p ractice fraud on his wife. In Finley v. Finley , 726 S.W.2d 923 (Tenn. App. 1986) the east ern section of this cour t set fort h the fol lowing fact ors which were t o be consider ed in det ermining if a conveyance had been made with fraudul ent int ent. These fact ors are : (1) the consi derati on given for the tr ansfer , (2) the si ze of the trans fer i n relation to the deceased’ s tot al est ate, (3) t he time between the trans fer and the trans feror ’s death, (4) the rel ations which exist ed betw een th e spo uses a t the tim e of the transfe r, (5) the s ourc e from wh ich the prop erty came, (6) whetherthe tr ansferwas ill usory, and (7) whether the sur viving s pouse was ade qua tely p rov ided for in the w ill. Finley , 726 S.W.2d at 924. In W arren v. Com pton , 626 S.W.2d 12 (Tenn. App. 1981) , an ear lier case fr om the ea stern se ction o f this co urt that d ealt w ith the sa m e issue , the co urt stated :
Ho we ver , we do n ot lim it ou r co nsid erati ons to th ose facto rs alo ne. Circumstances whic h establ ish fr audulentintent are as varied as the ingenuity of the human mind may devise. All f acts and c ircumstance s surr oun din g th e tran sfer m ust b e co nsid ered

. W arren , 626 S.W.2d at 17.5 Further more, as st ated by t his cour t in She rrill v. M allicote , 417 S.W.2d 798, 57 Tenn. App. 241 (Tenn. App. 1967): “I n cases of this type the re can be no f ixed rul e of determini ng when a transf er or gi ft i s fraudul ent to awife; ea ch case must be determined on i ts own fact s and cir cumstances.” Id. at 802. Following the tri al bel ow, the chancel lor wrot e a let ter t o counsel f or the parties in which he set

fort h his re asons forruli ng that the conveyance by t he decedent was not a fraudul ent tr ansfer . He noted that the foll owing “fact s” serve d to negat e a fraudul ent intent: (a) The transfer o f the property too k place ten y ears before the death of M r. Maness; (b) the rela tions hip between Mr. Maness and Mrs. Maness over the years had been a “ good o ne”; (c) the farm was an cestral property an d had b een ow ned by M r. Maness before the marri age; and ( d) the f act t hat Mr. Maness and his three sons ha d worked the far m openly and continuous ly foryears, with each one of them contri buting time, labor a nd incom e for the upk eep of the p roperty. As to this factor the court concluded that thi s was valuabl e consider ation. In our re view of the r ecord, t he evidence pr eponderat es agains t thr ee of the four findi ngs of fac t by the c hancell or, the excepti on being tha t the r elat ionshi p between hus ban d an d w ife. T his fa ctor is in e qui poi se, in our opi nio n. As to the chanc ellor ’s fi rst f inding, justbecause t he trans fer t ook place t en (10) years bef

ore Mr. Maness’ death does not mean it wasn’t a fraudul ent tr ansfer . As to the farm being ancest

ral pr operty, the proof

is t o the eff

ect t hat only asmall port ion of the farm wa s actua lly inhe rited an cestral p rope rty. La stly, the so ns testified that the only consider ation gi ven for the trans fer was $10 pai d to thei r father by Willi e Maness, and that they consider ed the l abor by them and expenditures made by them in rel ation t o the farm as rent to their father for perm itting them to ra ise their cattle on their father’s farm

. In our opi nion not onl y does the evi dence preponder ate agai nst the conclusi on reached by the chancell or, but preponderat es in f

avor of ourconclusi on that the trans fer was a fraudul ent one. First of all , the trans fer of

the farm to the sons underthe circu m stan ces wa s w itho ut co nsid erati on a nd w itho ut th e co nse nt o f his w ife.6

Secon dly, the size of the transfer w as substantial in relation to the total asse ts of M r. Maness. Excluding the farm, the uncontradi cted t esti mony is that as to the ba lance of their com bined estate, the pe rsonal prop erty had a v alue of $67 ,000 and the non-farm real e stat e $25,000. Plaintiff valued t he farm property trans ferr ed at $800 an acr e or $266,400. Will ie Maness testifi ed thatthe farm land was worth $300 to $400 per acr e, and no more than $133,200. W ith ei ther val uation, the farm is a substantial portion of the e state . By far and aw ay the most com pelling reason for holdi ng that Mr. M aness trans ferr ed this propert y with a fr audulentintent was the cloa k of secr ecy under which the transfer was made. After emp loying an attorney to prepare the deed Mr. M aness through hi s att orney reques ted a daught er-i n-law to f ind two pers ons to “wit ness” t he execution of the deed . She did so by arrang ing a m eeting at the friends’ h om e, where the d eed wa s sig ned by M r. M ane ss in their pre sen ce a nd n otar ized by t he a ttorn ey. The arrang ing fo r the ex ecutio n of a wa rranty deed befo re third-p arty w itnesse s is in

esse nce a nu llity a nd a dds to th e m yste ry. The desire for sec recy by Mr. Maness and his i ntent t o insure that hi s wife knew nothing about

this trans acti on is further s pelle d out by his present ing the de ed afte r executi on to his son Willie, with a speci fic admonit ion that no one was to be tol d about this deed (inc luding hi s othertwo sons) and Will ie’s instructi on to his wife that she place the deed in their l ock box, which she di d. There i t remained unt il s ome four or five day s afte r the dea th o f M r. M ane ss n ine y ears later , wh en it w as re cor ded

. Only then wa s plainti ff advi sed about the e xiste nce of t

his document

and it s effect upon her l ife. We re verse t

he decisio n of t

he tr ial court and hold t

hat t his conve yance by Acie Lee Maness was a fraudulent conveyance insofar as his spouse, the pla int if f, was co nce rne d. It i s he reb y s et as ide an d de clar

ed v oi d. As

a r esu lt thereof, t

he property so ught to be conveyed becomes a part o f Acie Lee Maness’ estate. There is nothing in t

his record to indicate whether Acie Lee Maness died7

testat e or intest

ate. W hile it would appear that he died without a will , this court is certain that the status of his estate will be made c lear to the trial cou rt upon remand . This case is r emande d to the Chancery Court of Henders on County for the determinat

ion of what plaintiff

’s marital rights are and what her distributive share of the est ate as t he surviving widow would am ount t o. Costs in this cause on appeal are ta xed to defendants, for which execution may issue if
necessar

y.

__________________________________________ TOMLIN, Sr. J.

__________________________________________ CRAWFORD, P. J., W .S. (CONC URS)

__________________________________________ HIGHERS, J. (CONC URS)