# FILED May 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN RE: ESTATE OF HAROLD L. ) JENKINS, Deceas

ed, ) ) HUGH C. CARDEN and D ONALD ) Appeal No. W. GARIS as Co-Executors of the ) 01A01-9709-CH-00500 HAROLD L. JENKINS Estate, ) ) Plaintiffs/Appellee

s, )

) VS. ) ) JONI L. JENKINS and KATHY L. ) JENKINS, ) ) Sumner Probate Defendants/Appellant

s. ) No. 93P-30

IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE
APPEAL FROM

THE CHANCERY PROBA TE COURT OF SUMNER C OUNTY AT HENDERSONVILLE, TENN ESSEE HONORABLE THOMAS E. GR AY, CHANCELLOR Denty Cheatham, BPR #3993 Rose Palermo, BPR #3330 CHEATHAM & PAL

ERMO 43 Music Square Wes

t Nashville, Tennessee 37203 ATTORNEYS FOR PLAINTIFF S/APPELLEES Charles W. McElroy BOULT, CUMMIN GS, C ONNER S & BER RY, P LC 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, MIDDL E SECTION
CONCURS: BEN H. CANTRELL, JUDGE CONCURS IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-2-

IN RE: ESTATE OF HAROLD L. ) JENKINS, Deceas

ed, ) ) HUGH C. CARDEN and D ONALD ) Appeal No. W. GARIS as Co-Executors of the ) 01A01-9709-CH-00500 HAROLD L. JENKINS Estate, ) ) Plaintiffs/Appellee

s, )

) VS. ) ) JONI L. JENKINS and KATHY L. ) JENKINS, ) ) Sumner Probate Defendants/Appellant

s. ) No. 93P-30 

## O P I N I O N
This is yet another chapter in the administration of t he 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. Jenki

ns, he paid certa

in salaries to his a

dult children, Michael Jenkins, Ka th yJenkins, Joni Jenkins, and Jimmy Jenkins, and

in addition, fro m ti me t o ti me a fte r th ey rea ched the ir m ajo rit y, he made various p ayments 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 adu

lt children. Occa

sionally
one of the children would mak e a payment, reducing the balance owed on that child’s account, and occasionally charges would

be made agains

t the accounts for rent owe d by-3-

themon 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 asa n “loan receivable” account

on Mr. Jenkins’ personal books and records, which were kept as part of the records of

his business propri

etorship known as T

witty Enterp

rises.

The Internal Revenue Service requires that

interest be impute

d 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 childrenwas reported and income tax was paid thereon by deceased.
Although the late Harold Jenkins never propose d that any legal action be taken against his adult children to collect the se accou nts, on more than on e occasion he told Laurie Thompson Tucker, his accountant, t hat if there was any

unpaid balance o

n 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 bo okkeepers 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 indebted ness to the e state asserting that the benefits received from d

eceased were

gifts, and plead

ing the statute of

limitations.

The Probat e Judge heard the evidenc e 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 andother employees a

nd the children’s

spouses; his busines s paid the expenses and charged the child or other employees or child’s spouse o n an account maintained to keep a record of such transaction

s.
- - - --4- Sim ila rly, during part of

this time Kathy

Jenkins was married to and lived at Twitty City with Bruce Harr is and Gary Seybold, and the entries on her account reflec t t hat during those marriage

s Mr. Seybold

and Mr. Harris received some paymen

ts which were cha

rged to the account of Kathy Jenkins, and they mad

e some payme

nts to reduce the unpa

id balance shown on

her account.

- - - - T he testimony of Kathy and Joni Jenkins regard ing th e accounts is not credible. They knew that they made charges andthat a record was being kept and that they were expected to make repay

ment. They k

new when their fa

ther was n ot expecting repayment. Joni knew that no r ep ayment was expectedfor some hospital expenses incurred by her and

paid by her father. Kathy knew that her father did no t expect repaymen t for some clothes purchased by her when she was wor kin g on a care er i n th e mu sic ind ust ry. The credi bility of Mick ey Je nkin s, former spouse of the deceas ed and the mother o f Joni, Kathy a

nd Jimmy Jenkins was impeached a s to her testim

ony concerning the furnishin gs o f t he condominiums and that she did not know that her children, Ka

thy, Joni or Jimmy

, were indebted t

o the late Harold L. Jenkins.

- - - - Twitty City was constructed in the early 198 0 's in Sumner County, Tennessee. As a p artof the complex there were condominiums owned by Har ol d L. Jenkins d/b/a Conway Twitty Enterprises. Af t er construction o

f Twitty Cit y, each of Harold L

. Jenkins’ children

, Mi chae l, Joni, Kathy and Jimmy, ren

ted a condominium f

rom their father andeach was an employee of Conway Twitty Enterpri s es. Eachchild paid rent on his/her condominium; each child was due andreceived a sala

ry and from

time to time, generally at Christmas, each r

eceived a bonus. Charges to Conway Tw

itty Ente r prises for personal ex penses were at times made by Michael, Joni, Kathy or Jim my. Other employees at times made a charge to Conway Twitty Enterprises for a personal expense. At the direction of Har

old L. Jenkins,

an account was maintainedin the name of eac h child, employ

ee, as a record of continuing transactions between the child, employee, and their father’s busine

ss Twitty Ente

rprises. These continuing transactions end

ed with the death o

f Harold L. Jen

kins. The Court finds these a ccounts we re mutual as contemplatedby T.C.A. 28-3-112, and t hat th e time for the running of the statute of li mitations iscomputed from the date of the last item since the

re is no showing in

this cause that an individual account was liquidated and a balance struck.

- - - - M utual agreement may never have been expressed, bu t it was clea

r ly implied. Che

cks were acce

pted as loans; charges for personal expenses to Conway Twitty Enterprises-5- w ere made by Kathy and Joni Jenkins. Repay men t an d reimbursement we

re made by K

athy and Joni Jen

kins. A contrac tual obligation was created betwee n Conway Twitty Enter

prises and Kathy

and Joni Jenkins. Harold L. Jenkins, deceased, d

id at times make gif

ts 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 perm ission for a spouse to bind either of them on the accounts maintai ned by Conwa

y Twitty Enterprises.No evidence was presented that Jimmy Jenkins expressly co

nsented to his wife

being an age

nt for him. Examination of Exhibit I, the account for Kathy Jenkins, reveals a Bruce Harris ba la nce of $850.00 carried f or wardto the account of K athy Jenkins. B

ruce Harris is forme rspous e of Kathy Jenkins. This $850.00 is deducted from the $59,619.66 shown as ow ed b y Kathy Jenkins to leave her a balance of $58,769.66. From the unpaid balanceof $4,311.38 ascribed to Joni Jenkins, the Court deducts th e $2,000.00 shown d

ebited to Chris Prater, former

spouse of Joni Jenkins, on the 24th day of June, 1983. The back up document for the $2,000.00 debi

t 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 owe d by Joni Jenkins is $2,311.38. The judgment of t

he Probate Court st

ates: 1. Judgmentis entered in favor of the estate of Harold L. Jenkin s , deceased, against Kathy Jenkins in the amount of FIFTY-EIGH

T THOUSAND SEVEN HUN DRE D SIXTY-NINE

DOLLARS AND S I XTY-SIX CENTS ($5 8,7 69. 66) for whi ch ex ecut ion may i ssu e, i f nec ess ary. 2. Judgmentis entered in favor of the estate of Haro ld L. Jenkins, deceased, against Joni Jenkins in the amount of TWO THOUSAND THREE HUNDRED ELEVEN DOLLARS AND THIRTY-E IG HT CENTS ($2,311.38). The appellants prese

nt the following issues: 1. Whether

the trial court erred in f in ding enforceable

obligations on be

half of the appel

lants to reimburse the estate for debts allegedly incurred d uring the decedent’s l ifetim e in the absence of evidence of mutual assent?-6- 2. Whether

the evidenc e preponderate s against the trial court’s finding of an obligat ion to repay any sums that may have been advanced to the appellants during the decedent’s lifetime? 3. Whet he r

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 a

nswer for the de

bts of such person

s? 4. Whether

the evidence clearly preponderates against th e trial court’s fin

ding that the only

witnesses with direct knowledge of th

e transactions c

omprising the cla

ims in this case was not credible. 5. Whether

the evidence p rep onderates aga inst 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 alle

ged obligation

s, to th e extent they were otherwise shown to

exist?
The execu

tors stat e a single i

ssue as foll

ows : 1. Where at his death a fat her had paid salaries andrented homes to his

four adult

children for

several ye

ars, through his business; and he had also maintaine

d business accounts of tra nsactions with each child which showed balances due him, which only his two daughter

s disputed; did the probate court er

r in entering a j u dgment o n the accounts in favor of the fa

ther’s estate, a

gainst the daug

hters?

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 ac

tion may be ba

sed upon the law of

advancements.

An adv ance men t is an i rrev ocab le gi ft b y 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 exper

ienced some diff

iculty in loca

ting tr us tworthy evidence of the

advancements a

sserted by t

he executors. T.C.A. § 24-1-203 rea ds as follows: Transactions with de cedent or ward. - In actions or proce edi ngs by or against executors, administrators, or guardians,

in which judgment

s may be rendered for

or against them, neither party

shallbe allowed to

testify against the other-7- as to any transaction with or s tatement by the testator, intestate, or wa

rd, unless called to testify thereto by the opposite party. Provided, if a c orporation be a p arty, this disqualification shall extend to its officers of every grade and its directors.
The failure to objec

t m ay 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 acc oun t ledgers maintained in the office of the business of deceased.
TRE - Rule 803(6) allows the admission of:

(6) Records of Regularly Con du cted 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 withknowledge a

nd a busi ness duty to r

ecord or transmi

t if kept in the cour se of a regula

rly conduc

ted business activ

ity andif it was the reg

ular practice o

f that business ac

tivity to make the memorandum, report, record, or d ata co mpilation, all as shown by th

e testimony o

f th e custo dian or other qualifiedwitness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The term “busines s” as used on this paragrap h inc ludes every kind of business, institution, association, profession, o ccu pation, and calling, whether or not conducted for

profit. TRE Rule 1006 provid

es: Rule 1006. Summaries. - T he contents

of voluminous writings, recordings, or photographs which canno t conveniently

be examined in court may be prese nted in the form of a chart, summary or cal culation. The originals or d u plicates shall be made available for examination or copying, or both, by ot

her parties at reasonable times and places. The cour

t may order

that they be

produced in cour

t.
There is evidence that the “source of information or method or circumstances of preparation indicate lack of trustworthiness.”-8- This appeal presents

a melange of le

gal questions agains t a background o f uncertain facts.

The deceased was an affluent entertainer with complicated bus ines s and family arrangements . For his bus iness deal ings he had a “controller” and an accountant wh

o became the executors of his estate. They undertook to keep an accurate re cord of his business affairs with limited and sketchy information received from transactions involving business funds and such personal transa

ctions as the dece

ased, or others r

eported to th

em orall y. The controller admitted t h at he could not certify that the records kept under his supervision reg arding 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 he arsay evidence rule and the “Dea d Man’s Statute.”

Whatever new law might

be decla red regarding the evasion of the effect of the dead man’s statute by us

e of “business re

cords” 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 prepon

derance of the

evidence in this r

ecord shows that: “[T]he source of

information or method or circumstances of preparation indicate lack of trustworthiness.”
The record shows tha

t th e dece ased 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 show s that a substantial part of the improvements charged to the children-9-

remained in place when th

e childre n 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.

Du ring cross-examination of Kathy L

. Jenkins, she and he

r counsel admitte

d that sh e owedher father

$1,524.16. Another child, Jimmy Jenkins, offered no defense to the $3,279.25 claim against him

, and did not partic

ipate in this appea

l.

For the foregoing re

asons, the judgme

nt against Kathy Jenkins is reduced to $1,524.16; the judgment agai

nst Jimmy Jenkins in t

he amount of $3,279 .25 is affirmed; a nd the judgments against the remaining de

fendants are re

versed and vaca

ted. Upon remand,

the Trial Co

ur t is directed to equitably

re-assess the c

osts 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 PRES IDING JUDGE, MIDDLE SECT IO N

CONCUR:

____________________________ BEN H. CANTRELL, JUDGE
CONCURS IN SEPARATE OPINION: WILLIA M C. KOCH, JR., JUDGE-10-