# FILED November 17, 1995 Cecil Crowson, Jr . Appellate Court Clerk GAI L FA RLEY D YER, ) 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, ) ) Defend ant/Appe

llant. )
IN THE COURT OF APPEALS OF TENNESSEE MIDD LE S EC TION AT N AS HVILLE
APPEAL FROM THE CHANCERY COURT OF DEKAL B COUNTY AT SMITHVI

LL E, TENNESSEE
HONORABLE VERNON NEAL, CHANCEL

LOR
DALE BOHANN ON 115 South Dixie Avenue Cookeville, Tennessee 38501 ATTORNEY FOR PLAI

NTIFF/APPEL

LEE
SUE N. PUCKETT-JERNIGAN 312 West Broad Street Smithville, Tennessee 37166 ATTORNEY FOR DEFENDANT/APPEL LANT
AFFIRMED AND

REMANDED
HENRY F. TODD

PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

GAI L FA RLEY D YER, ) 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, ) ) Defend ant/Appe

llant. )

O P I N I O N The defendant Terry

R. Farley , has appealed from the final judgment of the Tr ial Co ur t i n a co nt ro ve rs y re ga rd in g h is de al in gs wi th hi s d ec ea se d f at he r, Be nt on Ja me s F ar le y.
On September 27, 1991, Gail Farley Dyer, a s co-administrator and individually, filed this suit ag ainst her

brother , Terry

R. Farle y a s an indivi dual, sta

ting, how ever, th at he wa s a co-administrator with her of their deceased f ather's estate.
The complaint alleged that, on March 18, 1988, dece ased 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 f urther pay

ments to defendant, but never received a deed to the land.
The complaint further alleged that defe ndant mishandled or misappropriated the funds of deceased in a joint checking a ccount and proceeds of insurance on the life of deceased. The complaint also alleged that defendant had not a ccounted for rent collected by him on the land he sold to deceased and had converted c ertain personal property of the deceased.
The complaint pray ed: 1. For a constructive or resulting trust upon the land alleg ed to have been purchased by dece ased.-3- 2. For judgment against defenda nt for $30,902.83. 3. For a n accounting fo

r rent. 4. For r eturn of convert ed perso nalty 5. For the remova

l of defe ndant as c o-adminis trator a nd "that he be held person ally liable to t he estat e and pla intiff fo r his fra ud and ba d faith in c onvertin g prope rty of the es tate to his own benefit."

Th e a ns we r o f d ef

en da nt de ni ed an y de fa lc at io n, or co nv er si on of de ce as ed 's pr op er ty, prayed f or removal of plaintiff as administrator and asserted: . . . 6. It is denied that the decede nt ever purchased any

land from the defendant. The copy of the defendant's deed filed a s Exhibit 1 speaks for itself and is admitted. 7. At one t

ime the de

fendant did have a

deed pre pared 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 fe

w months after this conversation between the decedent and the defe ndant, the decedent gave the deed back to the defendant, and the def endant destroyed the deed in th e prese nce of a nd with the

consent o f the dec edent. 8. Defendant admits that the decedent, his father, did pay some mone

y to ward the

completio n of the su

bject hou se 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 Be nton James F arley

who died intestate

in DeKal b 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 purc

hase of a cabin by

Benton Farley

from Terry Farley, while Terry c ontends that the $15,000.00 check repres ented pa

yme nt or monie s which hisfather gave h im 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 a dmitted that his father paid him an additional $9,000.00 subsequent to the $15,000.00 payment, whic h was represented-4- by a $3,000.00 pay

ment and a $6,000.00 pay ment. Benton Farley additiona lly s pent in exc ess of $5, 000.00 fo r materi als and labor on the ca bin aside from the l abor he p ersonally performed thereon.

. . . . Terry Farley went to the

office of attorn ey Dale Bo hannon in Cookeville

and had a

deed pre pared to the cabin purport

edly making some type

of conveya

nce to Benton Farley
. . . . . . . In his answer, Terr

y Far ley admitted that he did have a deed prepared to his father and he a lleged that the deed was deliver ed in trus t to the de cedent with the und erstand ing that if Terry pr edeceased the decedent the deed was to be recorded. . .

. . . . Terr y F arley testifie d that in ma

king the deed he just picked out a lot number and that it was not a valid lot number. Under th at set of f

acts, the deed would not have

made any

valid typ e of conv ey ance to t

he lot and cabin in q

uestion. T

he false description appears to be an intentional act on Terry 's part . . . . The deed was prepared at the dire ction of Terry

Farley whom the Court finds had superior knowledge over his ag ing and infirmed father who repo sed trust a

nd confid ence in h im as to the contents of and execution of the deed. Gail was never sh ow n t he de ed an d i t w as de st ro yed by T er ry. . . . Benton Farley

had shown an intention in the past to treat his son and daughter equally with regard to his property as evidenc ed by

the mark ing of " loans" o n the $4,8 05.00 checks, the gifts of $400.00 cash each and the $35,000.00 equal division of

the C.D.' s. . . . Bent on Farle y ha d been dia

gnosed as having

prostate cancer when he m

oved into t

he cabin and he liv ed only

some twenty-seve

n months thereafter. The $30,000.00 or more that he invested in the cabin would be excessive and an unconsc ionable s um to pay for twen ty- eight mo nths of re

nt. The Court, therefore finds and holds that Benton Fa rley intended to take a nd thought he was taking a fee simpl e absolute title to the cabin and his intention was thwarted by Terry Farley who a

ctually never

made a valid convey ance of any interest. Te

rry, thus, held the prope

rty in trust for Be

nton Farley and it therefore results that a constructive trust should be and is impo sed on the

cabin and lot in que stion and t he same passes to the heir s of Ben

ton James F arley

as a par t of his estate.

. . . . Terry Farley testified tha t he had rented the cabin for $350.00 per month part of the time since February , 1991. However, there is not suffic ient proo f in the record for the Court t

o determine the amount of rental due the estate. I t will, therefore,-5- be nece ssary

for the Cl erk to ta

ke a ref erence or acco unting to determine the total of such rental due the estate.

. . . . The account at Citizen's Bank was in the name of B enton Farley or Terry R. Farley and was signed by

both. . . . Terry Farley admitted that the money in the ac count was Benton Farley 's money a

nd he further admitted that he was holding the money for the decedent's benefit. The various checks drawn on the account pay able to Terry Farley and totalling $4,805.00 were all marked as "loan"
. . . . . . . T.C.A. § 20-5-10 2; Leffew v. May es , 685 S.W.2d 288 (Tenn.App. 1984).

. . . . The Court, therefore, accordingly finds and holds that Terry Farley is indebte d to the Est

ate of B enton Fa

rley for loan s in the amount of $4,805.00.

. . . . From April through October, 1990, Gail Dy er deposited $1,59 4.46 o f inte rest o n her $ 35,00 0.00 C .D. in to Ter ry Farley's account for Benton Farley 's use. Terry admitted that he had no records to show that these funds were transfe rred or used for Benton Farley 's benefit. The Court finds that the purpose for which these funds were transferred in trust to Terry fa iled, and that Gail Dyer is e

ntitled to individually recover the sum of $1,594.46 from Ter ry Farley , this bein g the sum she had p aid Terry for her father 's use a

nd benef it.

. . . . . . . The Court finds t

hat the c o-adminis trator, Terry R. Farley , has failed to properly account for all the assets of the estate, that he has failed to cooperate with his co-a dministrator in that he refused to allow her to examine the decedent' s checks and rec ords shor

t of a cou rt order and that h

e is pers onally liable to t he estat e. Acco rdingly , the Cour

t finds tha t he should be removed as co-administrator of the estate. On February

11, 1993, the Trial Court ordered: . . . 1. A co nstructiv e trust is i mposed on t he cabin and lot in which Benton Farley

resided at the time of his death. A subsequent hearing will be held to determine the descr iption 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 a s a part of his estate. 2. The Cle

rk will tak

e a ref erence or acco unting to determine the total of the rental income of the cabin and lot due-6- the estate beginning at the date of death of Benton James Fa rl ey. 3. The Ad

ministrato

r of the E state is a

warded a judgme nt against Terry R. Farle y f or $4,805 .00 for un

paid loan s.

. . . . 5. Gail Dy

er, individually , is awar

ded a judg

ment ag ainst Terry Farley f

or $1,594.46 for the interest income on her $35,000.00 C.D. paid to Terry Farley f or her father's use and benefit
.

. . . . 7. The Co- Administra tor, Ter ry R. Farle y, h as faile d to properl y a ccount f or all the assets of the esta te, 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 per sonally

liable to t

he estat e. Ther efore, he is removed as Co-Administrator of the estate. 8. All other matters including the assessment of costs are reserved pending further or der of the Court. (vn) The Master responded to the refere nce that defendant had collected $5,600 re nt on the subject property sinc e the death of deceased.
On March 18, 1993, the Trial Court entered the following or der: John Nixon is appointed as Special Master to hear proof and report to the Court h

is finding s 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 amou

nt of the r ental inc ome of the

cabin and lot due the Estate of Benton James Farley , beginning at the da te of de at h o f B en to n J am es Fa rl ey? On Augu st 31, 1993 , the Spec ial Maste r repor ted the tr ue descr iption of th

e proper ty and rent collected by

defenda nt.
On May 31, 1994, the Tria l Court ordered a further hearing to determine the value of th e s ub je ct pr op er ty.-7- On Augu st 22, 1994 , the Tria l Court ent

ered the following

"Final Decre e:" 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 esta te of Benton James Farley

to a net judgment of $46,900.00. Theref ore, I T IS O RDERED asfollows: 1. This Court's prior Memorandum and prior Inte rlocutor y D ecree (judgme nt dated F ebruar y 9, 1993) is modified to give Gail Farley Dyer, a s Administrator of the estate of Benton James Farley , a judgment against Defenda nt Terry R. Farley f

or $46,900.00. This judgment will be a second lien on all of the Defendant's trac t of land upon which the cabin is located. A more specific descrip tion of this propert y is attache d as Exhibit 1 to this judgment. 2. The Defendant is not liable in any amount to the estate o f Bento n James Fa rley for ren tal income

of the ca bin 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 hearing s in this case. 4. Costs of this case are assessed to the Defendant Te rr y R. Fa rl ey.
From sai d "Fina

l Decre e," def

endant ha s appealed and pr esented the following issue s: 1. Wh ether t he tri al cou rt erre d in o verrul ing def endan t's Motion to Require Counsel to Withdrawdue to a conflict of interest and allowing plaintiff's counsel to continue representation. 2. Wh ether t he tri al cou rt erre d in o verrul ing def endan t's objec tion to th e plai ntiff

testi fying conce rning t he dece dent's bank rec ords. 3. Whether the court erred in finding that the decedent, Benton Farley , intende d to take a nd thought he wastaking a fee simpl e absol ute ti tle t o the c abin i n ques tion and im posi ng a constructive trust on the cabin in which Benton Farley resided. 4. Whether the court erred in considering a ny refe rence to the deed prepared at the direction of the de fendant after having stricken from the record all of the defe ndant'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 purcha se a life estate in the cabin in accordance with the prepondera nce of the evidence. 6. Whether the court erred in finding that Be nton Farley intended to treat his son and daughter alike.-8- 7. Whether

the cour t erred in finding

that the d eceden t 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 r

ent. 8. Whether

the cour t erred in holding

that the d efenda nt is indebted to the estate in the sum of $4,805.00 as unpaid loans for che cks writt

en on the j oint acc ount. 9. Whether

the cour t erred in holding

that the d efenda nt is indebted to the plaintiff individually in the sum of $1,594.46. 10. Whether the court erred in finding and holding tha t 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 pa

id by Benton James Far

ley to the defendant, for whatever rea son. 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 renta l from the $ 56,500.00

judgmen t for the v alue of d

eceden t's cab in and lot.
-First Iss ue: Rem oval of CounselThe only g

rounds asserted by

defendant for removal of plaintiff's la wyer we re that said lawy er had pe rformed legal s ervice s for dec eased a nd had pr epared a deed a t the req uest of defendant convey

ing the subject land to deceased. The attorne y denied any

recollection of preparing the deed.
Three principles underlie the ethical prohibition of "conf lict of interest."

Canon 5 of

Supreme C ourt Rule 8 states: A lawyer should preserve the confidences and sec rets of a client. If, during the r

epresentation of a client, the lawy er receives confidential or secr et information, that lawyer

is prohibited from accepting employ ment in which such information
or secr et might b e disclos ed or use d to the de triment of the clien t.-9- Nothing in this record indicates that, in preparing the deed at defendant's reque st, the lawyer rec eived an

y in formatio n or secr

et which m

ight be d isclosed to or used

for the b enefit of plaintiff to the detriment of defendant in the present case . Defendant admitted the preparation and execution of the deed. There is no e vidence, inference or sug gestion that any other fact was confided to the lawy er on that occasion.

Canon 6 of

Rule 8 of th

e Supreme

Court stat

es: A lawyer should exercise independent judgment on behalf of a client. This rule imposes an obligation to a prospective client to decline to repre sent such prospect if the lawy er represents or holds other interests which would impair the exercise of the lawyer 's unbiased professional judgment in advising and r epresenting the prospective client.
There is no evidence of any obligation or interest of the lawy er which would preclude him from representing plaintiff. Certainly , his previous services to deceased in other matters would not ipso facto

preclud e him from

exercising his inde

pendent p rofessio nal judg ment in the representation of one of the personal re presentatives of deceased. No spec ial circumst ances a re shown to impair h

is profe ssional jud

gment.

Canon 7 of

the Rules o f the Supr

eme Court

states: A lawyer should represent a client zealously within the bounds of the law. This rule imposes an obligation upon plaintiff's lawy er to represent her zealously
. Defendant has no standing to complain of a violation of that obliga tion; and the record contains no suggestion of a dang er of such violation.-10- The rule also imposes an obligation upon plaintiff's lawy er to confine his zeal for plaintiff's cause to lawful and ethical conduct and procedure. Although defenda nt might have standing to complain of a violation of this rule, there is no evidence of a ny such violation or danger of such violation.
In short, defendant' s effort to exclude plaintiff's lawy er was groundless and was properly re

jected by the Tr

ial Judge.

-Second Issue: Te stimony of

Plaintiff Ab out Bank R ecordsDefendant 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 te

lls 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. Boh annon : Do you kn ow of your own pe rsona l kno wledge what your fa

ther'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 se curity

automatic

deposit in

to his checking account, and it avera ged around $600 a month. He also had interest from a C.D., and then there wa s -- Q. Ho w m uc h w as th e i nt er es t, ap pr ox im at el y? A. The interest averaged a round $500 a month. And then th er e w as a m on th ly u ni on pe ns io n c he ck wh ic h w as al wa ys $185 a month. Q. And at that time after he moved to the cabin, did he owe any debts?-11- A. No. He ha

d no debts. Q. And are

you familiar with his mon

thly expenses? A. Yes, I am after

going back through his checkbook and -- Ms. Puckett-Jernigan: Your Honor, I c ertainly object to that. She can't testify

about going back through his checkbook. That's transactions with th e deced ent. 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 ty pe of things he bought, the expenses he had; and I would think she could testi fy to that . If they want to pu t on t heir p roof, that's fine. COURT: Well, she can testify as to wha t the records showed if she has those rec ords. Mr. Boha nnon: Ms. D ye

r, afte r y our revi ew of the

record s, what do they re

veal about the type s of monthly expenses y our father had? A. He had a monthly tele phone bill that he paid. He had union dues that he paid every month. His other expenses were just ordinary expenses. He ha d insurance pay

ments that he made on the house and on his car. There wer e repair bills and just your normal expenses. There was nothing out of the or di na ry.

. . . . Q. Have you pr epared a stat ement showi ng Bento n Farle y's cash income and the cash that he had available to him from January 1, '88, throug

h the date of his death? A. Yes. Q. Is tha

t that stat ement? A. Yes, it is. Q. Your Hon or, I 'd ask th at that be the next exhib it. COURT: All right. Exhibit 2. [Statement

showing cash inc ome and c ash avail able t o Bento n Farle y from 1-1 -88 th rough 11-22-90 marked as Exhibit 2.] Ms. Puckett-Jernigan: Your Hon or, I want to int

erpose an objec tion to that . I jus t . . . I still think sh

e's tes tify ing to transactions with th

e deced ent. COURT: Let me

see it.-12- Mr. Boha nnon: Your

Honor, every

single t hing on th

ere is documented by the ba

nk records; and I' ve got them. I' m ready to put those

into evide

nce--t he final listing, t he union b enefit 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 Cou rt is of the

opinion tha

t it isn't.

. . . . Q. Now let me ask you if y ou have also prepared a statemen t showing living e xpenses and known gifts for t his 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 e xpenses he has by chec

k. COURT: Well, what's the relevance of that, any way? Are we having an accounting of everything

that . . . every dime tha

t he received and every

dime that was --

. . . . Q. Your Hon or, befo re I get into the cabin, itself, I would like to put into evidence a copy of certain cancelled chec ks 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 re levance and then the tran sactions , too--the dead ma n's stat ute, both r

easons. Mr. Bohannon: May

it please the Court, certainly Ms. Dyer wouldn't be testify

ing 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 the y ha ve any thing to d o with wha

t's in controversy, the

n fine; but, otherwise, in the Court's opinion, th ey d on 't ha ve an y ma te ri al it y.

. . . . Q. Ms. Dyer, let me show y ou some other checks that are all stapled together and ask y ou if you can identify

those and how you were

able to obtain those and how you put them together?-13- A. Okay. These

checks are copies that I

received from Citizen'sBank fr

om my father 's che cking a

ccount. 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 th

e front? A. $5,670.17. Ms. Puckett-Jernigan: I object to her testify ing 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. Dy er. Ms. Puckett-Jernigan: I still object. It doe sn't matter how many

times you go ove

r it beca use she do esn't know if they went into the building mate rials. All she can say

is what the chec k shows. COURT: The che cks would speak fo r themselves unles s she has some personal knowledge.

. . . . Mr. Bohannon: Ms. Dye r, let me offer y ou that document; and do y ou recog

nize that to

be a cop y of

an itemiza

tion of tho se checks that are Exhibit 19? A. Yes, sir. Q. Okay . On one sh

eet. Now if y ou would, f

or the Cou

rt, go down through that itemiza

tion; and w ould y ou testify as to those bills that you put in as going in on the c abin and why y ou did that? Ms. Puckett-Jernigan: Your Honor, again, she can't do that. The checks s peak for

themselve s. 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 sparrin g match

about adm

issibility of testimo ny a

bout rec ords.-14- Defend ant's e

ntire ar gument in support o f 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 incompete nt evidence. Even if the court should find that the checks were not "transactions" with the decedent, the plaintiff c ertainly was incompetent to testify as to what the c hecks 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 thes e reaso ns the cou rt erre d in allowing the p laintiff to testify conce

rning 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 t he Trial Court. Rule s of this Cou rt - Rule 6 (a)(3) . Appella nt has not s o demonstrated.
T.C.A. Section 24-1-203, the "Dead Man's Statute" was designed to prevent prejudice to an estate by pr

eventing testimony of

a party a s to conversations or transactions which the par ty ha d wi th th e de cea sed , ex cep t wh ere th e wi tn ess was cal led by th e op pos it e pa rty. In the cited portions of the record, the plaintiff was not testify ing as to conversations or transactions between herself and dec eased. T.R.A.P. Rule 36(b).
Appellant's brief, quoted above, appea rs 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 f ound. Failure to object in the Trial Court is generally

held to be a waiver of objection on appeal. Miller v. State, 80 Tenn. (12L ea) 223 ( 1883); Wright v. United Services Auto Assn., Tenn. App. 1990, 789 S.W.2d 91.

-Issue Four is:- The court erred in considering a ny refe rence to the deed prepared at the direction of the defe ndant after having stricken from the record all of the defendant' s testimony relative to the transaction with the decedent involving the deed.-15- Defend ant citesthe following ruli ng of the Trial Cour

t: COURT: So le t the d eceden t. . . I mean, t he defe ndant 's testimony relative to the transa ction with the decedent involving the deed be strick en from th

e recor d. I w anted to t

ell you that now so if that had any thing to do with your direct examination. However, the objection which trigg ered the ruling is not cited. I t must be presumed that the cou rt correctly stuck su ch testimo ny as violative of t he "Dead Man's St atute." 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 a

nd, there fore, not subject t

o the "D ead Man' s Statute. " Defe ndant doe s not cite any objection to the testimony of the other witnesses or the ruling of the Trial Court there on.

The answer of defendant admitted the execution of the deed exhibited to the
co mp la in t. Th er efor e, an y ot he r e vi de nc e o f i ts ex ec ut io n i s u nn ec es sa ry.
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 , intende d to take a nd thought he was taking a fee simpl e absol ute ti tle t o the c abin i n ques tion and im posi ng a constructive trust on the cabin in which Benton Farley resided. Issue 5 The cour

t erred in not find

ing that Benton Farley

only intended to and did purchase a life estate in the cabin in the accordance with the prepondera nce of the evidence.
The answ er of defendant

admitted t

hat he exe cuted a d

eed to de ceased , 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.-16- The complaint alleged: 6. On March 18, 1988, Benton James Farley wrote a check on his Citizens B ank che cking a ccount f or $15,00 0.00 to Te

rry R. Farley . This payment was the c onsideration for the purchase by Benton James Farley

of land in DeKalb County, Te nnessee and a partia lly c ompleted

house. A c opy

of Terr y F arley 's dee d to the prope rty upon which the house

and lot is si

tuated is attached as Exhibit 1. Benton James Farley paid for the remaining construction on the house and worked on it himself.
The def endant' s answer

responds : 6. It is denied that the decede nt ever purchased any

land from the defendant. The copy

of the defendant's deed filed a s Exhibit 1 speaks for itself and is admitted.
It is n oteworth

y th at defe

ndant' s answer

does not de

ny r eceipt o f $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 plea ding 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 st at es th at a p ar ti al fa il ur e t o d en y should be called to the attention of the court by proper motion, but

the state ment is dicta and does not preclude consideration of the failure to de ny in reaching a non-jury

factual conclusion.
In spite of the defenda

nt'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 pa rties inten ded a t ransfe r of th e prop erty to th e fathe r; or, at lea st, t hat th e fathe r's investmen

t in the pro

perty would not b e lost.
It is evident that the Trial Judge did not acce pt the defendant's version of the intent and results of his transactions with his father.-17- The evidence does not preponderate a gainst the finding of the Trial Judge that the dealings between defendant a nd his father were intended to result in the father' s ownership of th e s ub je ct pr op er ty.
-Appellant's Sixth Issue is:- The court erred in finding that Be nton Farley

intended to treat his son and daughter alike. The fifteen pages of written a rgument 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 consider ed waive d. Moreov er, the intent to tr eat equa lly w as circ umstantia

l and not di

rectly 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 r

ent.
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 y ears and eight months. For this period, rental of $30,000 or $937 per month does not appear to be
reasona ble, cons idering

the condi tion of the

house an d the expen se and la bor expend

ed 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 defenda nt is indebted to the estate in the sum of $4,805.00 as unpaid loans for checks written o n the joint a

ccount. The loans were evidenced by checks marked "loan" a

nd drawn by de

fendant upon the funds of d

eceased in a joint s urvivor' s accoun t.-18- Appellan t 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. I n the present case; defendant testified as follows: Q. The joint account was opened five day s after your

mother died? A. Yes. Q. And you agre e that the jo int ac count was your d ad's mo ne y. A. Yes. Q. Ev er yth in g t ha t w en t i n t he re wa s yo ur da d' s m on ey. A. Yes. Q. You were holding that money for his benefit insofar as your rela tion was concerned. A. Yes.
This testim

ony of defe ndant ef fective ly p reventsthe appli cation of the holdin g 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,
ac co un ta bl e for th e m on ey.
-Appellant's Ninth Issue is:-

The court erred in holding that the defenda nt is indebted to the plaintiff individually in the sum of $1,594.46. Plaintiff testified that her father divided $70,000 between her a nd the defendant; that she and d efenda nt agreed to use t

he inter est deriv ed from th

e fund fo r the benefit of th

eir father; that she deposited a total of $1,594.46 of such interest in defenda nt's personal bank
acc oun t t o be use d fo r th eir fat her . P lai nt iff off ere d no evi den ce t hat it was not use d. It would be surprising if she should have such evidence, w hich only defenda

nt could produce.-19-

This situation represented a trust, and called for some response or accounting which was not forth comin g.
No error is found in the judgment in favor of plaintiff as a n individual for a refund of funds entru sted t o defen dant f or whi ch he h as offe red no accoun ting.
-Appellant's Tenth Issue is:- The court erred in finding and holding tha t 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 appr aisals submitted by stipulation of the parties."
Appellan t's fina l three is sues are

merely summary in chara cter an d do not mer

it further discussion.
The appe llee comp lains of th

e deduc tion of $9, 600 rent f rom the va

lue of the award in lieu of the

land. App ellee do es not que stion the a mount of the deduc tion ($300 .00 per mo nth 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 reac hed 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 appella nt. The c ause is r

emanded to the Tri al Court f

or any necessa ry further procee dings.-20- Affirmed and Remanded.

__________________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE