FILED

May 6, 1998

Cecil W. Crowson

Appellate Court Clerk

IN RE: ESTATE OF HAROLD L. )

JENKINS, Deceased, )

)

HUGH C. CARDEN and DONALD ) Appeal No.

W. GARIS as Co-Executors of the ) 01A01-9709-CH-00500

HAROLD L. JENKINS Estate, )

)

Plaintiffs/Appellees, )

)

 VS. )

)

JONI L. JENKINS and KATHY L. )

JENKINS, )

) Sumner Probate

Defendants/Appellants. ) No. 93P-30

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

APPEAL FROM THE CHANCERY PROBATE COURT OF SUMNER COUNTY

AT HENDERSONVILLE, TENNESSEE

HONORABLE THOMAS E. GRAY, CHANCELLOR

Denty Cheatham, BPR #3993

Rose Palermo, BPR #3330

CHEATHAM & PALERMO

43 Music Square West

Nashville, Tennessee 37203

ATTORNEYS FOR PLAINTIFFS/APPELLEES

Charles W. McElroy

BOULT, CUMMINGS, CONNERS & BERRY, PLC

414 Union Street, Suite 1600

P.O. Box 198062

Nashville, Tennessee 37219

ATTORNEY FOR DEFENDANTS/APPELLANTS

MODIFIED IN PART, AFFIRMED IN PART, 

REVERSED IN PART, REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCURS:

BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:

WILLIAM C. KOCH, JR., JUDGE
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IN RE: ESTATE OF HAROLD L. )

JENKINS, Deceased, )

)

HUGH C. CARDEN and DONALD ) Appeal No.

W. GARIS as Co-Executors of the ) 01A01-9709-CH-00500

HAROLD L. JENKINS Estate, )

)

Plaintiffs/Appellees, )

)

 VS. )

)

JONI L. JENKINS and KATHY L. )

JENKINS, )

) Sumner Probate

Defendants/Appellants. ) No. 93P-30

O P I N I O N

This is yet another chapter in the administration of the estate of Harold L. Jenkins, a

popular entertainer whose stage name was “Conway Twitty.” The executors initiated the present

proceeding to resolve disputed rights of three devises in respect to the collection from them of

certain charges appearing on the records of the deceased. The Probate Court resolved the issues

in favor of the executors, and two of the devises appealed.

The complaint of the executors alleged in pertinent substance:

During the lifetime of the late Harold L. Jenkins, he paid certain salaries to his adult

children, Michael Jenkins, Kathy Jenkins, Joni Jenkins, and Jimmy Jenkins, and in

addition, from time to time after they reached their majority, he made various payments on

debts owed by them, or directly to them, to allow them to purchase certain items or pay

certain expenses.

Harold L. Jenkins requested his employees who kept his books and records to keep

an account of all of these payments made by him to or for his adult children. Occasionally

one of the children would make a payment, reducing the balance owed on that child’s

account, and occasionally charges would be made against the accounts for rent owed by
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them on their homes at Twitty City, when such rent was not deducted from the salaries he

paid to them. Each of these accounts of his adult children was listed as an “loan

receivable” account on Mr. Jenkins’ personal books and records, which were kept as part

of the records of his business proprietorship known as Twitty Enterprises.

The Internal Revenue Service requires that interest be imputed and income tax paid

on the interest, by a parent, if the child owes the parent a debt of more than $10,000.00. 

Interest upon such debts of his children was reported and income tax was paid thereon by

deceased.

Although the late Harold Jenkins never proposed that any legal action be taken

against his adult children to collect these accounts, on more than one occasion he told

Laurie Thompson Tucker, his accountant, that if there was any unpaid balance on these

accounts at this death, the amount would be taken out of that child’s inheritance.

At the time of Mr. Jenkins’ death Kathy Jenkins owed her father $59,620.00,

according to her “loans receivable account” maintained by her father’s bookkeepers and

accountants. The “loans receivable” account of Joni Jenkins showed a debt of $4,311.00

owed by her to her father.

The appellants answered denying any indebtednessto the estate asserting that the benefits

received from deceased were gifts, and pleading the statute of limitations.

The Probate Judge heard the evidence without a jury and filed a memorandum stating:

The late Mr. Jenkins was a generous and kind person

to his children and to his employees. He allowed charges for

personal expenses to be made to his business by his children

and other employees and the children’s spouses; his business

paid the expenses and charged the child or other employees or

child’s spouse on an account maintained to keep a record of

such transactions.

- - - -
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Similarly, during part of this time Kathy Jenkins was

married to and lived at Twitty City with Bruce Harris and

Gary Seybold, and the entries on her account reflect that

during those marriages Mr. Seybold and Mr. Harris received

some payments which were charged to the account of Kathy

Jenkins, and they made some payments to reduce the unpaid

balance shown on her account.

- - - -

The testimony of Kathy and Joni Jenkins regarding the

accounts is not credible. They knew that they made charges

and that a record was being kept and that they were expected

to make repayment. They knew when their father was not

expecting repayment. Joni knew that no repayment was

expected for some hospital expenses incurred by her and paid

by her father. Kathy knew that her father did not expect

repayment for some clothes purchased by her when she was

working on a career in the music industry.

The credibility of Mickey Jenkins, former spouse of

the deceased and the mother of Joni, Kathy and Jimmy

Jenkins was impeached as to her testimony concerning the

furnishings of the condominiums and that she did not know

that her children, Kathy, Joni or Jimmy, were indebted to the

late Harold L. Jenkins.

- - - -

Twitty City was constructed in the early 1980's in

Sumner County, Tennessee. As a part of the complex there

were condominiums owned by Harold L. Jenkins d/b/a

Conway Twitty Enterprises. After construction of Twitty

City, each of Harold L. Jenkins’ children, Michael, Joni,

Kathy and Jimmy, rented a condominium from their father

and each was an employee of Conway Twitty Enterprises.

Each child paid rent on his/her condominium; each child was

due and received a salary and from time to time, generally at

Christmas, each received a bonus.

Charges to Conway Twitty Enterprises for personal

expenses were at times made by Michael, Joni, Kathy or

Jimmy. Other employees at times made a charge to Conway

Twitty Enterprises for a personal expense.

At the direction of Harold L. Jenkins, an account was

maintained in the name of each child, employee, as a record

of continuing transactions between the child, employee, and

their father’s business Twitty Enterprises. These continuing

transactions ended with the death of Harold L. Jenkins.

The Court finds these accounts were mutual as

contemplated by T.C.A. 28-3-112, and that the time for the

running of the statute of limitations is computed from the date

of the last item since there is no showing in this cause that an

individual account was liquidated and a balance struck.

- - - -

Mutual agreement may never have been expressed, but

it was clearly implied. Checks were accepted as loans;

charges for personal expenses to Conway Twitty Enterprises
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were made by Kathy and Joni Jenkins. Repayment and

reimbursement were made by Kathy and Joni Jenkins.

Acontractual obligation was created betweenConway

Twitty Enterprises and Kathy and Joni Jenkins.

Harold L. Jenkins, deceased, did at times make gifts

to his children. However, the accounts before the Court were

not gifts.

- - - -

No evidence was presented that Kathy Jenkins or Joni

Jenkins consented or gave permission for a spouse to bind

either of them on the accounts maintained by Conway Twitty

Enterprises. No evidence was presented that Jimmy Jenkins

expressly consented to his wife being an agent for him.

Examination of Exhibit I, the account for Kathy

Jenkins, reveals a Bruce Harris balance of $850.00 carried

forward to the account of Kathy Jenkins. Bruce Harris is

former spouse of Kathy Jenkins. This $850.00 is deducted

from the $59,619.66 shown as owed by Kathy Jenkins to

leave her a balance of $58,769.66.

From the unpaid balance of $4,311.38 ascribed to Joni

Jenkins, the Court deducts the $2,000.00 shown debited to

Chris Prater, former spouse of Joni Jenkins, on the 24th day

of June, 1983. The back up document for the $2,000.00 debit

is a copy of a check for $2,000.00 made payable to the order

of Chris Prater and endorsed by him. The memo on the check

shows “loan”. (See Exhibit 2.) The balance owed by Joni

Jenkins is $2,311.38.

The judgment of the Probate Court states:

1. Judgment is entered in favor of the estate of

Harold L. Jenkins, deceased, against Kathy Jenkins in the

amount ofFIFTY-EIGHT THOUSAND SEVEN HUNDRED

SIXTY-NINE DOLLARS AND SIXTY-SIX CENTS

($58,769.66) for which execution may issue, if necessary.

2. Judgment is entered in favor of the estate of

Harold L. Jenkins, deceased, against Joni Jenkins in the

amount of TWO THOUSAND THREE HUNDRED

ELEVEN DOLLARS AND THIRTY-EIGHT CENTS

($2,311.38).

The appellants present the following issues:

1. Whether the trial court erred in finding

enforceable obligations on behalf of the appellants to

reimburse the estate for debts allegedly incurred during the

decedent’s lifetime in the absence of evidence of mutual

assent?
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2. Whether the evidence preponderates against

the trial court’s finding of an obligation to repay any sums

that may have been advanced to the appellants during the

decedent’s lifetime?

3. Whether the trial court erred in finding

appellant Kathy Jenkins liable for payments made for the

benefit of others, in the absence of a written agreement

undertaking to answer for the debts of such persons?

4. Whether the evidence clearly preponderates

against the trial court’s finding that the only witnesses with

direct knowledge of the transactions comprising the claims in

this case was not credible.

5. Whether the evidence preponderates against

the trial court’s finding of mutual accounts so as to avoid the

application of the statute of limitations to bar recovery of all

or a part of the alleged obligations, to the extent they were

otherwise shown to exist?

The executors state a single issue as follows:

1. Where at his death a father had paid salaries

and rented homes to his four adult children for several years,

through his business; and he had also maintained business

accounts of transactions with each child which showed

balances due him, which only his two daughters disputed; did

the probate court err in entering a judgment on the accounts

in favor of the father’s estate, against the daughters?

It appears from the record that the amounts which the executors seek to recover from the

children of deceased do not exceed the amount of distribution to which each of them is entitled.

As a result, this action may be based upon the law of advancements.

An advancement is an irrevocable gift by a parent in anticipation of the child’s share in

the parent’s estate. Jones v. Jones, 163 Tenn. 237, 43 S.W.2d 205 (1931).

In the present case, this Court has experienced some difficulty in locating trustworthy

evidence of the advancements asserted by the executors. T.C.A. § 24-1-203 reads as follows:

Transactions with decedent or ward. - In actions or

proceedings by or against executors, administrators, or

guardians, in which judgments may be rendered for or against

them, neither party shall be allowed to testify against the other
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as to any transaction with or statement by the testator,

intestate, or ward, unless called to testify thereto by the

opposite party. Provided, if a corporation be a party, this

disqualification shall extend to its officers of every grade and

its directors.

The failure to object may constitute a waiver of the exclusion. Rose v. Stalcup, Tenn.

App. 1987, 731 S.W.2d 541.

The executors offered in evidence copies of partial summaries of account ledgers

maintained in the office of the business of deceased.

TRE - Rule 803(6) allows the admission of:

(6) Records of Regularly Conducted Activity. - A

memorandum, report, record, or data compilation in any form

of acts, events, conditions, opinions, or diagnoses made at or

near the time by or from information transmitted by a person

with knowledge and a business duty to record or transmit if

kept in the course of a regularly conducted business activity

and if it was the regular practice of that business activity to

make the memorandum, report, record, or data compilation,

all as shown by the testimony of the custodian or other

qualified witness, unless the source of information or the

method or circumstances of preparation indicate lack of

trustworthiness. The term “business” as used on this

paragraph includes every kind of business, institution,

association, profession, occupation, and calling, whether or

not conducted for profit.

TRE Rule 1006 provides:

Rule 1006. Summaries. - The contents of voluminous

writings, recordings, or photographs which cannot

conveniently be examined in court may be presented in the

form of a chart, summary or calculation. The originals or

duplicates shall be made available for examination or

copying, or both, by other parties at reasonable times and

places. The court may order that they be produced in court.

There is evidence that the “source of information or method or circumstances of

preparation indicate lack of trustworthiness.”
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This appeal presents a melange of legal questions against a background of uncertain

facts.

The deceased was an affluent entertainer with complicated business and family

arrangements. For his business dealings he had a “controller” and an accountant who became

the executors of his estate. They undertook to keep an accurate record of his business affairs

with limited and sketchy information received from transactions involving business funds and

such personal transactions as the deceased, or others reported to them orally. The controller

admitted that he could not certify that the records kept under his supervision regarding the

financial relations of deceased with his children were complete or completely accurate.

The true facts as to what the intent of the deceased may have been as to classification of

his gifts as advancements or loans, are obscured by the hearsay evidence rule and the “Dead

Man’s Statute.”

Whatever new law might be declared regarding the evasion of the effect of the dead

man’s statute by use of “business records” is rendered inconclusive by the loose and nebulous

dealings and record keeping of deceased and his children.

The record relied upon by the executors simply fails to qualify as competent evidence

because preponderance of the evidence in this record shows that:

“[T]he source of information or method or circumstances of

preparation indicate lack of trustworthiness.”

The record shows that the deceased set an “allowance” for the furnishings, special

fixtures and decoration of the condominiums which he built and rented to his children and that

expenses incurred by each child in excess of the allowance was charged to that child. However,

the record also shows that a substantial part of the improvements charged to the children
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remained in place when the children were evicted, and the sale price was enhanced by such

improvements.

With two exceptions, there is no evidence that any of the heirs of deceased ever agreed

with the father or his executors upon any particular amount of debt to deceased.

During cross-examination of Kathy L. Jenkins, she and her counsel admitted that she

owed her father $1,524.16. Another child, Jimmy Jenkins, offered no defense to the $3,279.25

claim against him, and did not participate in this appeal.

For the foregoing reasons, the judgment against Kathy Jenkins is reduced to $1,524.16;

the judgment against Jimmy Jenkins in the amount of $3,279.25 is affirmed; and the judgments

against the remaining defendants are reversed and vacated. Upon remand, the Trial Court is

directed to equitably re-assess the costs accrued in that court. The costs on appeal are assessed

against the executors to be paid out of the funds of the estate. The cause is remanded for further

proceedings in conformity with this opinion.

MODIFIED IN PART, AFFIRMED IN PART, 

REVERSED IN PART, REMANDED.

_________________________________

HENRY F. TODD

PRESIDINGJUDGE,MIDDLE SECTION

CONCUR:

____________________________

BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:

WILLIAM C. KOCH, JR., JUDGE
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