FILED

November 17,

1995

Cecil Crowson, Jr.

Appellate Court Clerk

GAIL FARLEY DYER, )

Individually and as Co-Administrator of the )

Estate of Benton James Farley, Deceased, )

)

Plaintiff/Appellee, )

) DeKalb Chancery

) No. 91-139

VS. )

) Appeal No.

) 01-A-01-9506-CH-00229

TERRY R. FARLEY, )

)

Defendant/Appellant. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF DEKALB COUNTY

AT SMITHVILLE, TENNESSEE

HONORABLE VERNON NEAL, CHANCELLOR

DALE BOHANNON

115 South Dixie Avenue

Cookeville, Tennessee 38501

ATTORNEY FOR PLAINTIFF/APPELLEE

SUE N. PUCKETT-JERNIGAN

312 West Broad Street

Smithville, Tennessee 37166

ATTORNEY FOR DEFENDANT/APPELLANT

AFFIRMED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

BEN H. CANTRELL, JUDGE
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GAIL FARLEY DYER, )

Individually and as Co-Administrator of the )

Estate of Benton James Farley, Deceased, )

 )

Plaintiff/Appellee, )

 ) DeKalb Chancery

 ) No. 91-139

VS. )

 ) Appeal No.

 ) 01-A-01-9506-CH-00229

TERRY R. FARLEY, )

 )

Defendant/Appellant. )

O P I N I O N

The defendant Terry R. Farley, has appealed from the final judgment of the Trial

Court in a controversy regarding his dealings with his deceased father, Benton James Farley.

On September 27, 1991, Gail Farley Dyer, as co-administrator and individually, filed

this suit against her brother, Terry R. Farley as an individual, stating, however, that he was a

co-administrator with her of their deceased father's estate.

The complaint alleged that, on March 18, 1988, deceased paid defendant $15,000 as

payment for the purchase of a described tract containing a partially constructed house; that

deceased completed the house and made further payments to defendant, but never received a

deed to the land.

The complaint further alleged that defendant mishandled or misappropriated the funds

of deceased in a joint checking account and proceeds of insurance on the life of deceased. 

The complaint also alleged that defendant had not accounted for rent collected by him on the

land he sold to deceased and had converted certain personal property of the deceased.

The complaint prayed:

1. For a constructive or resulting trust upon the land alleged to have been purchased

by deceased.
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2. For judgment against defendant for $30,902.83.

3. For an accounting for rent.

4. For return of converted personalty

5. For the removal of defendant as co-administrator and "that he be held personally

liable to the estate and plaintiff for his fraud and bad faith in converting property of the estate

to his own benefit."

The answer of defendant denied any defalcation, or conversion of deceased's property,

prayed for removal of plaintiff as administrator and asserted:

. . . 6. It is denied that the decedent ever purchased any land

from the defendant. The copy of the defendant's deed filed as

Exhibit 1 speaks for itself and is admitted.

 7. At one time the defendant did have a deed prepared to

Benton James Farley, which deed was delivered in trust to the

Benton James Farley with the understanding that if the

defendant predeceased the decedent the deed was to be

recorded. However, a few months after this conversation

between the decedent and the defendant, the decedent gave the

deed back to the defendant, and the defendant destroyed the

deed in the presence of and with the consent of the decedent.

 8. Defendant admits that the decedent, his father, did pay

some money toward the completion of the subject house in

exchange for the defendant's agreement with his father that he

could move into the home and remain there the remainder of

his life, rent free. . . .

After a non-jury trial, the Trial Judge found:

 . . . The parties to this suit are the children, heirs and next of

kin of Benton James Farley who died intestate in DeKalb

County, Tennessee, on November 22, 1990.

 . . . .

 On March 17, 1988, Benton Farley gave Terry Farley a check

in the amount of $15,000.00. Gail Dyer contends this was

payment on the purchase of a cabin by Benton Farley from

Terry Farley, while Terry contends that the $15,000.00 check

represented payment or monies which his father gave him to

live in the cabin until his death.

 Benton Farley moved into the cabin prior to March 31, 1988,

and remained there until his death. At the time the decedent

gave Terry the $15,000.00 check the cabin was dried in. . . .

Terry admitted that his father paid him an additional $9,000.00

subsequent to the $15,000.00 payment, which was represented
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by a $3,000.00 payment and a $6,000.00 payment. Benton

Farley additionally spent in excess of $5,000.00 for materials

and labor on the cabin aside from the labor he personally

performed thereon. 

. . . .

 Terry Farley went to the office of attorney Dale Bohannon in

Cookeville and had a deed prepared to the cabin purportedly

making some type of conveyance to Benton Farley. . . .

 . . . In his answer, Terry Farley admitted that he did have a

deed prepared to his father and he alleged that the deed was

delivered in trust to the decedent with the understanding that if

Terry predeceased the decedent the deed was to be recorded. . .

.

 . . . Terry Farley testified that in making the deed he just

picked out a lot number and that it was not a valid lot number. 

Under that set of facts, the deed would not have made any valid

type of conveyance to the lot and cabin in question. The false

description appears to be an intentional act on Terry's part . . . .

The deed was prepared at the direction of Terry Farley whom

the Court finds had superior knowledge over his aging and

infirmed father who reposed trust and confidence in him as to

the contents of and execution of the deed. Gail was never

shown the deed and it was destroyed by Terry.

 . . . Benton Farley had shown an intention in the past to treat

his son and daughter equally with regard to his property as

evidenced by the marking of "loans" on the $4,805.00 checks,

the gifts of $400.00 cash each and the $35,000.00 equal

division of the C.D.'s.

 . . . Benton Farley had been diagnosed as having prostate

cancer when he moved into the cabin and he lived only some

twenty-seven months thereafter. The $30,000.00 or more that

he invested in the cabin would be excessive and an

unconscionable sum to pay for twenty-eight months of rent.

 The Court, therefore finds and holds that Benton Farley

intended to take and thought he was taking a fee simple

absolute title to the cabin and his intention was thwarted by

Terry Farley who actually never made a valid conveyance of

any interest. Terry, thus, held the property in trust for Benton

Farley and it therefore results that a constructive trust should be

and is imposed on the cabin and lot in question and the same

passes to the heirs of Benton James Farley as a part of his

estate.

 . . . .

 Terry Farley testified that he had rented the cabin for $350.00

per month part of the time since February, 1991. However,

there is not sufficient proof in the record for the Court to

determine the amount of rental due the estate. It will, therefore,
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be necessary for the Clerk to take a reference or accounting to

determine the total of such rental due the estate.

 . . . .

 The account at Citizen's Bank was in the name of Benton

Farley or Terry R. Farley and was signed by both. . . . Terry

Farley admitted that the money in the account was Benton

Farley's money and he further admitted that he was holding the

money for the decedent's benefit. The various checks drawn on

the account payable to Terry Farley and totalling $4,805.00

were all marked as "loan". . . .

 . . . T.C.A. § 20-5-102; Leffew v. Mayes, 685 S.W.2d 288

(Tenn.App. 1984).

 . . . .

 The Court, therefore, accordingly finds and holds that Terry

Farley is indebted to the Estate of Benton Farley for loans in

the amount of $4,805.00.

 . . . .

 From April through October, 1990, Gail Dyer deposited

$1,594.46 of interest on her $35,000.00 C.D. into Terry Farley's

account for Benton Farley's use. Terry admitted that he had no

records to show that these funds were transferred or used for

Benton Farley's benefit. The Court finds that the purpose for

which these funds were transferred in trust to Terry failed, and

that Gail Dyer is entitled to individually recover the sum of

$1,594.46 from Terry Farley, this being the sum she had paid

Terry for her father's use and benefit.

 . . . .

 . . . The Court finds that the co-administrator, Terry R.

Farley, has failed to properly account for all the assets of the

estate, that he has failed to cooperate with his co-administrator

in that he refused to allow her to examine the decedent's checks

and records short of a court order and that he is personally

liable to the estate. Accordingly, the Court finds that he should

be removed as co-administrator of the estate.

On February 11, 1993, the Trial Court ordered:

. . . 1. A constructive trust is imposed on the cabin and lot in

which Benton Farley resided at the time of his death. A

subsequent hearing will be held to determine the description of

the lot upon which the cabin sits. The cabin and lot in question

passes to the residuary beneficiaries under the Will of Benton

James Farley as a part of his estate.

 2. The Clerk will take a reference or accounting to

determine the total of the rental income of the cabin and lot due
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the estate beginning at the date of death of Benton James

Farley.

 3. The Administrator of the Estate is awarded a judgment against

Terry R. Farley for $4,805.00 for unpaid loans.

 . . . .

 5. Gail Dyer, individually, is awarded a judgment against

Terry Farley for $1,594.46 for the interest income on her

$35,000.00 C.D. paid to Terry Farley for her father's use and

benefit.

 . . . .

 7. The Co-Administrator, Terry R. Farley, has failed to

properly account for all the assets of the estate, failed to

cooperate with his Co-Administrator in his refusal to allow her

to examine the decedent's checks and records short of a Court

Order, and is personally liable to the estate. Therefore, he is

removed as Co-Administrator of the estate.

 8. All other matters including the assessment of costs are

reserved pending further order of the Court. (vn)

The Master responded to the reference that defendant had collected $5,600 rent on the

subject property since the death of deceased.

On March 18, 1993, the Trial Court entered the following order:

 John Nixon is appointed as Special Master to hear proof and

report to the Court his findings as to the following questions:

 1. What is the description of the lot on which Benton Farley

resided at the time of his death?

 2. What is the total amount of the rental income of the cabin

and lot due the Estate of Benton James Farley, beginning at the

date of death of Benton James Farley?

On August 31, 1993, the Special Master reported the true description of the property

and rent collected by defendant.

On May 31, 1994, the Trial Court ordered a further hearing to determine the value of

the subject property.
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On August 22, 1994, the Trial Court entered the following "Final Decree:"

The hearing to determine the value of the cabin and lot

at issue in this case was set for June 28, 1994. Based upon the

certified appraisals submitted by the parties by stipulation, the

Court finds that the cabin and lot in which Benton Farley

resided at the time of his death has a value of $56,500.00. 

Benton Farley lived in the house for 32 months. The Court

holds that defendant Terry Farley should be allowed a credit of

$9,600.00 for the fair rental of the house entitling the estate of

Benton James Farley to a net judgment of $46,900.00.

Therefore, IT IS ORDERED as follows:

1. This Court's prior Memorandum and prior

Interlocutory Decree (judgment dated February 9, 1993) is

modified to give Gail Farley Dyer, as Administrator of the

estate of Benton James Farley, a judgment against Defendant

Terry R. Farley for $46,900.00. This judgment will be a

second lien on all of the Defendant's tract of land upon which

the cabin is located. A more specific description of this

property is attached as Exhibit 1 to this judgment.

2. The Defendant is not liable in any amount to the

estate of Benton James Farley for rental income of the cabin

and lot based upon the accounting taken by the Special Master.

3. The pleadings are hereby amended to conform to the

evidence at trial and in the subsequent hearings in this case.

4. Costs of this case are assessed to the Defendant

Terry R. Farley.

From said "Final Decree," defendant has appealed and presented the following issues:

1. Whether the trial court erred in overruling defendant's

Motion to Require Counsel to Withdraw due to a conflict of

interest and allowing plaintiff's counsel to continue

representation.

2. Whether the trial court erred in overruling defendant's

objection to the plaintiff testifying concerning the decedent's

bank records.

3. Whether the court erred in finding that the decedent, Benton

Farley, intended to take and thought he was taking a fee simple

absolute title to the cabin in question and imposing a

constructive trust on the cabin in which Benton Farley resided.

4. Whether the court erred in considering any reference to the

deed prepared at the direction of the defendant after having

stricken from the record all of the defendant's testimony

relative to the transaction with the decedent involving the deed.

5. Whether the court erred in not finding that Benton Farley

only intended to and did purchase a life estate in the cabin in 

accordance with the preponderance of the evidence.

6. Whether the court erred in finding that Benton Farley

intended to treat his son and daughter alike.
-8-

7. Whether the court erred in finding that the decedent only

lived 27 months after moving into the cabin and that the

$30,000 was an excessive and an unconscionable sum for 28

months of rent.

8. Whether the court erred in holding that the defendant is

indebted to the estate in the sum of $4,805.00 as unpaid loans

for checks written on the joint account.

9. Whether the court erred in holding that the defendant is

indebted to the plaintiff individually in the sum of $1,594.46.

10. Whether the court erred in finding and holding that the

estate of James Benton Farley is entitled to a net judgment of

$46,900.00, as this amount far exceeds any proof in the record

of the monies actually paid by Benton James Farley to the

defendant, for whatever reason.

11. Whether the judgment is contrary to law.

12. Whether the judgment is contrary to the evidence.

13. Whether the judgment is contrary to the weight and

preponderance of the evidence.

The plaintiff presents the following issue:

 Whether the Trial Court erred in deducting $9,600.00 rental

from the $56,500.00 judgment for the value of decedent's cabin

and lot.

-First Issue: Removal of CounselThe only grounds asserted by defendant for removal of plaintiff's lawyer were that

said lawyer had performed legal services for deceased and had prepared a deed at the request

of defendant conveying the subject land to deceased. The attorney denied any recollection of

preparing the deed.

Three principles underlie the ethical prohibition of "conflict of interest."

Canon 5 of Supreme Court Rule 8 states:

A lawyer should preserve the confidences and secrets of a

client.

If, during the representation of a client, the lawyer receives confidential or secret

information, that lawyer is prohibited from accepting employment in which such information

or secret might be disclosed or used to the detriment of the client.
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Nothing in this record indicates that, in preparing the deed at defendant's request, the

lawyer received any information or secret which might be disclosed to or used for the benefit

of plaintiff to the detriment of defendant in the present case. Defendant admitted the

preparation and execution of the deed. There is no evidence, inference or suggestion that any

other fact was confided to the lawyer on that occasion.

Canon 6 of Rule 8 of the Supreme Court states:

A lawyer should exercise independent judgment on behalf of a

client.

This rule imposes an obligation to a prospective client to decline to represent such

prospect if the lawyer represents or holds other interests which would impair the exercise of

the lawyer's unbiased professional judgment in advising and representing the prospective

client.

There is no evidence of any obligation or interest of the lawyer which would preclude

him from representing plaintiff. Certainly, his previous services to deceased in other matters

would not ipso facto preclude him from exercising his independent professional judgment in

the representation of one of the personal representatives of deceased. No special

circumstances are shown to impair his professional judgment.

Canon 7 of the Rules of the Supreme Court states:

A lawyer should represent a client zealously within the bounds

of the law.

This rule imposes an obligation upon plaintiff's lawyer to represent her zealously. 

Defendant has no standing to complain of a violation of that obligation; and the record

contains no suggestion of a danger of such violation.
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The rule also imposes an obligation upon plaintiff's lawyer to confine his zeal for

plaintiff's cause to lawful and ethical conduct and procedure. Although defendant might have

standing to complain of a violation of this rule, there is no evidence of any such violation or

danger of such violation.

In short, defendant's effort to exclude plaintiff's lawyer was groundless and was

properly rejected by the Trial Judge.

-Second Issue: Testimony of Plaintiff About Bank RecordsDefendant cites the following parts of the record:

Q. After your dad moved to the cabin on the lake, what

was his income?

A. His income was around --

Ms. Puckett-Jeringan: Now, Your Honor, I'm going to object

to anything that she tells about transactions with the decedent

unless she knows of her own personal knowledge.

COURT: Well, if she does know of her own personal

knowledge --

Mr. Bohannon: Do you know of your own personal knowledge

what your father's income was after the time he moved to the

cabin?

A. Yes, I do.

Q. And what was his income?

A. His income was around $1,200 a month.

Q. And what did that consist of?

A. Okay. He had a Social security automatic deposit into

his checking account, and it averaged around $600 a month. 

He also had interest from a C.D., and then there was --

Q. How much was the interest, approximately?

A. The interest averaged around $500 a month. And then

there was a monthly union pension check which was always

$185 a month.

Q. And at that time after he moved to the cabin, did he owe

any debts?
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A. No. He had no debts.

Q. And are you familiar with his monthly expenses?

A. Yes, I am after going back through his checkbook and --

Ms. Puckett-Jernigan: Your Honor, I certainly object to that. 

She can't testify about going back through his checkbook. 

That's transactions with the decedent.

Mr. Bohannon: These are bank statements. She's testifying

what the bank statements reveal. Also, she knows about . . .

she visited with him. She knows about his lifestyle, the type of

things he bought, the expenses he had; and I would think she

could testify to that. If they want to put on their proof, that's

fine.

COURT: Well, she can testify as to what the records

showed if she has those records.

Mr. Bohannon: Ms. Dyer, after your review of the records,

what do they reveal about the types of monthly expenses your

father had?

A. He had a monthly telephone bill that he paid. He had

union dues that he paid every month. His other expenses were

just ordinary expenses. He had insurance payments that he

made on the house and on his car. There were repair bills and

just your normal expenses. There was nothing out of the

ordinary.

. . . .

Q. Have you prepared a statement showing Benton Farley's

cash income and the cash that he had available to him from

January 1, '88, through the date of his death?

A. Yes.

Q. Is that that statement?

A. Yes, it is.

Q. Your Honor, I'd ask that that be the next exhibit.

COURT: All right. Exhibit 2.

[Statement showing cash income and cash

available to Benton Farley from 1-1-88 through

11-22-90 marked as Exhibit 2.]

Ms. Puckett-Jernigan: Your Honor, I want to interpose

an objection to that. I just . . . I still think she's testifying to

transactions with the decedent.

COURT: Let me see it.
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Mr. Bohannon: Your Honor, every single thing on there is

documented by the bank records; and I've got them. I'm ready

to put those into evidence--the final listing, the union benefit

check --

COURT: Well, that's not the objection she made. The

objection she's made is it's a violation of the dead man's statute.

Ms. Puckett-Jernigan: Right.

COURT: And the Court is of the opinion that it isn't.

. . . .

Q. Now let me ask you if you have also prepared a

statement showing living expenses and known gifts for this

period of time?

A. Yes, I have.

Ms. Puckett-Jernigan: Well, Your Honor, I certainly am

going to object to that. She cannot testify to his living

expenses unless she was there with him and knew.

Mr. Bohannon: Your Honor, we have the living expenses he

has by check.

COURT: Well, what's the relevance of that, anyway? Are

we having an accounting of everything that . . . every dime that

he received and every dime that was --

. . . .

Q. Your Honor, before I get into the cabin, itself, I would

like to put into evidence a copy of certain cancelled checks

written on Mr. Benton Farley's bank account concerning living

expenses and such. I believe these need to be put into evidence.

Ms. Puckett-Jernigan: I object--the relevance and then

the transactions, too--the dead man's statute, both reasons.

Mr. Bohannon: May it please the Court, certainly Ms. Dyer

wouldn't be testifying as to any transactions. These are copies

of the bank statements that describe the various living expenses

that Mr. Farley had over this period of time.

COURT: Well, if they have anything to do with what's in

controversy, then fine; but, otherwise, in the Court's opinion,

they don't have any materiality.

. . . .

Q. Ms. Dyer, let me show you some other checks that are

all stapled together and ask you if you can identify those and

how you were able to obtain those and how you put them

together?
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A. Okay. These checks are copies that I received from

Citizen's Bank from my father's checking account.

Q. And what are they for?

A. Okay. They are for building material, supplies, or labor

on the cabin.

Q. What's the total of those on the front?

A. $5,670.17.

Ms. Puckett-Jernigan: I object to her testifying that

that's building materials on the cabin. She can say that they're

checks, but that's all.

Mr. Bohannon: Let's go over each one of them then, Ms. Dyer.

Ms. Puckett-Jernigan: I still object. It doesn't matter

how many times you go over it because she doesn't know if

they went into the building materials. All she can say is what

the check shows.

COURT: The checks would speak for themselves unless

she has some personal knowledge.

. . . .

Mr. Bohannon: Ms. Dyer, let me offer you that document; and

do you recognize that to be a copy of an itemization of those

checks that are Exhibit 19?

A. Yes, sir.

Q. Okay. On one sheet. Now if you would, for the Court,

go down through that itemization; and would you testify as to

those bills that you put in as going in on the cabin and why you

did that?

Ms. Puckett-Jernigan: Your Honor, again, she can't do

that. The checks speak for themselves. There's a check to

Wicke's Lumber and one to whomever.

COURT: Well, unless she knows, she can't testify that

they went into -- 

In addition, defendant cites pages 124-129 of the transcript which contains a lengthy

sparring match about admissibility of testimony about records.
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Defendant's entire argument in support of this issue is:

 There is no question but that the checks written on Mr.

Benton Farley's account and signed by him are "transactions" as

above described and were incompetent evidence.

 Even if the court should find that the checks were not

"transactions" with the decedent, the plaintiff certainly was

incompetent to testify as to what the checks represented, as she

had no personal knowledge of any of the checks except two. 

(Tr., Vol. I, 40, lines 19-25; 41, lines 1-23)

 For these reasons the court erred in allowing the plaintiff to

testify concerning any of the checks except possibly the two of

which she had personal knowledge.

It is the burden of appellant to demonstrate how he was prejudiced by an alleged error

committed by the Trial Court. Rules of this Court - Rule 6(a)(3). Appellant has not so

demonstrated.

T.C.A. Section 24-1-203, the "Dead Man's Statute" was designed to prevent prejudice

to an estate by preventing testimony of a party as to conversations or transactions which the

party had with the deceased, except where the witness was called by the opposite party. In

the cited portions of the record, the plaintiff was not testifying as to conversations or

transactions between herself and deceased. T.R.A.P. Rule 36(b). 

Appellant's brief, quoted above, appears to allege that the testimony about bank

records was inadmissible as hearsay. No part of the record is cited where timely objection

was made on this ground, and no such objection has been found. Failure to object in the Trial

Court is generally held to be a waiver of objection on appeal. Miller v. State, 80 Tenn.

(12Lea) 223 (1883); Wright v. United Services Auto Assn., Tenn. App. 1990, 789 S.W.2d 91.

-Issue Four is:-

The court erred in considering any reference to the deed

prepared at the direction of the defendant after having stricken

from the record all of the defendant's testimony relative to the

transaction with the decedent involving the deed.
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Defendant cites the following ruling of the Trial Court:

COURT: So let the decedent. . . I mean, the defendant's

testimony relative to the transaction with the decedent

involving the deed be stricken from the record. I wanted to tell

you that now so if that had anything to do with your direct

examination.

However, the objection which triggered the ruling is not cited. It must be presumed

that the court correctly stuck such testimony as violative of the "Dead Man's Statute." 

Defendant makes no complaint as to this ruling, but does complain of the admission of

testimony of numerous other witnesses on the same subject. Said witnesses were not parties

to this suit and, therefore, not subject to the "Dead Man's Statute." Defendant does not cite

any objection to the testimony of the other witnesses or the ruling of the Trial Court thereon. 

The answer of defendant admitted the execution of the deed exhibited to the

complaint. Therefore, any other evidence of its execution is unnecessary.

There is no basis upon which to sustain the complaint of the fourth issue.

-Issues Three and Five are:-

Issue 3 The court erred in finding that the decedent, Benton

Farley, intended to take and thought he was taking a fee simple

absolute title to the cabin in question and imposing a

constructive trust on the cabin in which Benton Farley resided.

Issue 5 The court erred in not finding that Benton Farley only

intended to and did purchase a life estate in the cabin in the

accordance with the preponderance of the evidence.

The answer of defendant admitted that he executed a deed to deceased, but it is

uncontradicted that the deed did not describe the property in question.

The answer admits that his father completed the house on the land in question, but

asserts that this work and expense were in consideration of free rent to the father.
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The complaint alleged:

6. On March 18, 1988, Benton James Farley wrote a check on

his Citizens Bank checking account for $15,000.00 to Terry R.

Farley. This payment was the consideration for the purchase by

Benton James Farley of land in DeKalb County, Tennessee and

a partially completed house. A copy of Terry Farley's deed to

the property upon which the house and lot is situated is

attached as Exhibit 1. Benton James Farley paid for the

remaining construction on the house and worked on it himself.

The defendant's answer responds:

6. It is denied that the decedent ever purchased any land from

the defendant. The copy of the defendant's deed filed as

Exhibit 1 speaks for itself and is admitted.

It is noteworthy that defendant's answer does not deny receipt of $15,000 from his

father on March 18, 1988. Neither does it deny that the father paid for and completed

construction of the house.

Averments in a pleading to which a responsive pleading is required are admitted when

not denied in the responsive pleading. T.R.C.P. Rule 8.04. (Exceptions to this rule are

inapplicable to the present case.) Edwards v. Edwards, Tenn. App. 1973, 501 S.W.2d 283

states that a partial failure to deny should be called to the attention of the court by proper

motion, but the statement is dicta and does not preclude consideration of the failure to deny

in reaching a non-jury factual conclusion.

In spite of the defendant's testimony that he made a conditional delivery of the deed,

and that it was returned to him, there is evidence to sustain the finding of the Trial Judge that

the parties intended a transfer of the property to the father; or, at least, that the father's

investment in the property would not be lost.

It is evident that the Trial Judge did not accept the defendant's version of the intent

and results of his transactions with his father.
-17-

The evidence does not preponderate against the finding of the Trial Judge that the

dealings between defendant and his father were intended to result in the father's ownership of

the subject property.

-Appellant's Sixth Issue is:-

The court erred in finding that Benton Farley intended to treat

his son and daughter alike.

The fifteen pages of written argument following this issue does not relate to this issue,

but to issues 5 and 6 which have already been discussed. The sixth issue is therefore

considered waived. Moreover, the intent to treat equally was circumstantial and not directly

determinative of the issues in this case.

-Appellant's Seventh Issue is:-

The court erred in finding that the decedent only lived 27

months after moving into the cabin and in finding that the

$30,000 was an excessive and an unconscionable sum for 28

months of rent.

The evidence shows that deceased moved into the unfinished house in March, 1988,

and resided there until his death on November 22, 1990. This was about two years and eight

months. For this period, rental of $30,000 or $937 per month does not appear to be

reasonable, considering the condition of the house and the expense and labor expended on it.

No error is found in this finding of the Trial Judge.

-Appellant's Eighth Issue is:-

The court erred in holding that the defendant is indebted to the

estate in the sum of $4,805.00 as unpaid loans for checks

written on the joint account.

The loans were evidenced by checks marked "loan" and drawn by defendant upon the

funds of deceased in a joint survivor's account.
-18-

Appellant cites Estate of Haynes v. Braden, Tenn. App. 1992, 835 S.W.2d 19,

wherein there was no evidence of the ownership of a joint survivorship bank account except

the contract between the bank and depositors. In the present case; defendant testified as

follows:

Q. The joint account was opened five days after your

mother died?

A. Yes.

Q. And you agree that the joint account was your dad's

money.

A. Yes.

Q. Everything that went in there was your dad's money.

A. Yes.

Q. You were holding that money for his benefit insofar as

your relation was concerned.

A. Yes.

This testimony of defendant effectively prevents the application of the holding in

Haynes to the present case. Defendant admits the money belonged to his father and that he

(defendant) was holding it for his father's benefit. This constitutes defendant a trustee,

accountable for the money.

-Appellant's Ninth Issue is:-

The court erred in holding that the defendant is indebted to the

plaintiff individually in the sum of $1,594.46.

Plaintiff testified that her father divided $70,000 between her and the defendant; that

she and defendant agreed to use the interest derived from the fund for the benefit of their

father; that she deposited a total of $1,594.46 of such interest in defendant's personal bank

account to be used for their father. Plaintiff offered no evidence that it was not used. It

would be surprising if she should have such evidence, which only defendant could produce. 
-19-

This situation represented a trust, and called for some response or accounting which was not

forthcoming.

No error is found in the judgment in favor of plaintiff as an individual for a refund of

funds entrusted to defendant for which he has offered no accounting.

-Appellant's Tenth Issue is:-

The court erred in finding and holding that the estate of James

Benton Farley is entitled to a net judgment of $46,900.00, as

this amount far exceeds any proof in the record of the monies

actually paid by Benton James Farley to the defendant, for

whatever reason.

The "Final Decree," quoted above, is not based upon evidence of expenditures by

deceased, but upon "certified appraisals submitted by stipulation of the parties."

Appellant's final three issues are merely summary in character and do not merit

further discussion.

The appellee complains of the deduction of $9,600 rent from the value of the award in

lieu of the land. Appellee does not question the amount of the deduction ($300.00 per month

for 32 months), but simply states without citation of authority that the deduction was

"contrary to law." This proceeding was equitable in character, and the Trial Court reached an

equitable result which should not be disturbed.

It should be noted that the $46,900 judgment is in favor of the estate, one-half of

which belongs to the defendant who will receive his half of the $46,900 upon the settlement

of the estate. 

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the

appellant. The cause is remanded to the Trial Court for any necessary further proceedings.
-20-

Affirmed and Remanded.

__________________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________

SAMUEL L. LEWIS, JUDGE

_____________________________________

BEN H. CANTRELL, JUDGE