IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 5, 2003 Session

IN RE: ESTATE OF ELIZABETH A. HAYNES

KENNETH HUGHES, ET UX. v. ESTATE OF ELIZABETH A. HAYNES

A Direct Appeal from the Probate Court for Franklin County

No. Unknown The Honorable Floyd Don Davis, Judge

No. M2002-01896-COA-R3-CV - Filed September 4, 2003

This appeal involves a claim filed against an estate for recovery for personal services

rendered by claimants, husband and wife, to the decedent. The probate court granted the claim.

Estate appeals. We reverse. 

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Probate Court Reversed and

Remanded

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER,

J. and HOLLY M. KIRBY, J., joined.

Mark Stewart, Winchester, For Appellant, Estate of Elizabeth A. Haynes

Mickey Hall, Winchester, For Appellees, Kenneth Hughes and Elaine Hughes

OPINION

This is an action to recover compensation from an estate for personal services rendered to

the decedent. On September 26, 2001, Elizabeth A. Haynes (“Ms. Haynes,” or “Decedent”) died

testate at the age of 96 and her will was admitted to probate by order dated September 27, 2001. For

several years prior to her death, Kenneth Hughes (“Mr. Hughes”) and his wife, Elaine Hughes (“Mrs.

Hughes,” and together with Mr. Hughes, “Plaintiffs,” or “Appellees”), had done various jobs for Ms.

Haynes such as maintenance and repair of her heating system, daily meals, driving, gardening, and

general maintenance work. On February 1, 2002, Mr. and Mrs. Hughes filed a Claim against the

Estate of Elizabeth A. Haynes (“Estate,” “Defendant,” or “Appellant”). The Claim reads, in relevant

part, as follows:

2. Nature of Claim. Claimants allege the decedent was indebted to

claimants by reason of services provided to decedent by the
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claimants, as a statement signed by the decedent that is attached to

this claim attests.

3. Amount of Claim. Claimants make claim for $150,000.00. No

payment has been received since decedent’s death.

As an attachment to their claim, Appellees filed a “statement,” written by Mr. Hughes, signed by Ms.

Haynes, and witnessed by Virginia Kochans, which reads as follows:

Date Aug. 25 = 2001

Kenneth,

After I am gone I want you [and] Elaine to be paid $150,000 dollars

for all the things you have done for me over the years and haven’t

been paid for.

I also want Wilson Jones to have 50,000 dollars for all things he has

done and wasn’t sufficiently paid for. In addition to will.

I want you [and] Elaine to have Mickey my dog and enough money

to take care of her. 

You have been better to me than my own relatives. I couldn’t [have]

made it without you.

Elizabeth A. Haynes /S/ Virginia Kochans /S/

Witness

Kenneth Hughes /S/

A hearing on Appellees’ claim was held in the Probate Court of Franklin County, Tennessee

on July 8, 2002. An Order was entered on July 12, 2002, which reads, in relevant part, as follows:

This cause was heard on July 8, 2002 on a claim for service

rendered. The Court heard several witnesses and arguments of

counsel. The Court finds as follows:

1. Exhibit #1 is a writing signed by Miss Haynes with witnesses.

This writing proposed to acknowledge $150,000 owing to Mr. & Mrs.

Kenneth Hughes. This writing also proposed to have Mrs. Kenneth

Hughes have and take care of her dog, a most prized possession of

Miss Haynes.
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2. Plaintiff and plaintiff’s witnesses testified about daily visits and

services performed for Miss Haynes over several years.

3. Value of this service was valued at $80,000 to $85,000 by Mr.

Hughes, and $75,000 to $80,000 by Mrs. Hughes.

4. Defendant’s witnesses agreed that the plaintiffs were at the home

on a regular bases. Most witnesses testified that the Hughes

performed services for Miss Haynes on a daily basis.

5. Mr. Taylor, a witness for the defendant testified that he saw the

Hughes family at the house, but did not recall seeing any work

performed by the Hughes family.

6. Mr. Taylor verified Mr. Hughes was concerned about treatment

and medication that was given to Miss Haynes. The employee was

terminated.

7. No one from the defendant contested the value of services

rendered by Mr. and Mrs. Hughes.

8. None of the beneficiaries for the estate were present in court or

voiced any objection to the claim of Mr. and Mrs. Hughes.

9. That services were rendered by Mr. and Mrs. Hughes to the estate

of Miss Haynes.

10. That exhibit #1 is confirmation of Miss Haynes’ desire to pay

Mr. and Mrs. Hughes.

It is therefore ORDERED, ADJUDGED AND DECREED

that Kenneth Hughes and wife Elaine Hughes shall have and recover

from the Estate of Miss Elizabeth Haynes for services rendered in the

amount of $75,000/Seventy-Five Thousand Dollars plus the cost.

Therefore a judgment of $75,000 is entered against the estate

of Elizabeth A. Haynes for which execution may issue if necessary.

The Estate appeals from this Order and raises one issue for our review, as stated in its brief:

Whether the trial court erred as a matter of law in its 

award of $75,000.00 for services rendered, in the claim of 

Kenneth Hughes against the Estate of Elizabeth A. Haynes.
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The Appellees raise the following, additional issue for our review:

The trial court erred in setting the value of

the services rendered at $75,000

Since this case was tried by the court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. 

Unless the evidence preponderates against the findings, we must affirm, absent error of law. See

Tenn. R. App. P. 13(d). 

Whether the trial court erred as a matter of law in its 

award of $75,000.00 for services rendered, in the claim of 

Kenneth Hughes against the Estate of Elizabeth A. Haynes

The law in Tennessee is well settled on claims against an estate for services rendered to a

decedent:

In asserting a claim against an estate for services rendered the

decedent, the cause of action necessarily is based upon either contract

or quasi contract.... To bring a contract into existence there must be

an offer and an acceptance of that offer. The offer and acceptance

may be expressed or implied from the parties’ conduct....

Contracts implied in fact arise under circumstances which,

according to the ordinary course of dealing and common

understanding of men, show a mutual intention to contract. Such an

agreement may result as a legal inference from the facts and

circumstances of the case....

In order to make out an implied contract for the rendition of

services, facts and circumstances must be shown which amount to a

request for services, which is the offer to contract, and the

performance of the requested services, which is the acceptance of the

offer....

As to services performed by a member of a family on behalf of

another member of the same family, there is a presumption, which grows

weaker as the relationship recedes, that the services are rendered gratuitously,

from motives of affection and duty, and to entitle one in that situation to

recover compensation therefor, the burden is upon them to overcome the

presumption by showing either an expressed contract or such exceptional

facts and circumstances as will establish an intention on the part to charge

and on the other part to pay, notwithstanding the relationship of kinship....
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Where one renders services to another in the hope or

expectation of a legacy, devise, or other provision by will for his

benefit, without any contract, express or implied, but relying solely

upon the generosity of the person for whom such services were

rendered, he cannot recover for such services because of the failure

of such person to make such testamentary provision in his behalf....

Therefore, if the plaintiffs establish that the decedent

expressly or impliedly requested the services, and if plaintiffs prove

that they rendered those services with the expectation that they were

to be paid in some manner for those services, then a contract is made

out entitling the plaintiffs to recover against the estate for the

reasonable value of those services. This contract must be proven in

the face of the ‘Dead Man’s statute (T.C.A. 24-1-203) and the hearsay

rule.

Cobble v. McCamey, 790 S.W.2d 279, 281-82 (Tenn. Ct. App.

1989) (emphasis in original; citations and quotations omitted)

We note that all parties to this suit agree that the August 25, 2001 writing satisfied neither

the statutory requirements for will codicils nor the requirements for an express contract.

Consequently, Mr. and Mrs. Hughes proceeded on the theory of quasi contract in their claim

against the Estate. In addition, although Mr. Hughes, at several points in his testimony,

mentioned that Ms. Haynes was like a mother to him, we note that the Hughes were not related

by either blood or marriage to Ms. Haynes. Therefore, there is no presumption that the services

were performed gratuitously.

As stated above, in order to make out their claim for compensation for services rendered

to Ms. Haynes on the grounds of quasi contract, Mr. and Mrs. Hughes must satisfy two criteria:

(1) that Ms. Haynes expressly or impliedly requested the services and (2) that Mr. and Mrs.

Hughes performed those services with the expectation that they were to be paid in some manner.

Turning to the record in this case, there is ample evidence to support a finding that Mr.

and Mrs. Hughes performed numerous tasks for Ms. Haynes from 1993 until her death in

September 2001. We also find that there is sufficient evidence to support a finding that Ms.

Haynes either expressly or impliedly requested these services. Mr. Hughes testified, in relevant

part, as follows:

Q. When [Ms. Haynes] had that new heater put in, did you handle all

the details of having it done?

A. She [Ms. Haynes] asked me to recommend who and to come and

oversee it and I did...
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Elaine Hughes also testified concerning Ms. Haynes requests as follows:

Q. ...And were you [Mrs. Hughes] aware that he [Mr. Hughes]

worked on the furnace all those times?

A. Oh, yes, because say if he wasn’t there–her [Ms. Haynes’] little

hyper voice–you know, she [Ms. Haynes] would want him [Mr.

Hughes] to come over there as soon as he got in.

Brenda Farris, an acquaintance of Ms. Haynes and the Hughes, testified, in pertinent

part, as follows:

Q. All right. Do you [Ms. Farris] know what Ms. Haynes thought

about these services [performed by Mr. and Mrs. Hughes]?

A. She [Ms. Haynes] always told me that she didn’t know what she’d

do without Kenneth [Hughes].

Clayton Couch, an acquaintance of Ms. Haynes, also testified, in relevant part, as

follows:

...I know she [Ms. Haynes] depended on him [Mr. Hughes] a lot

because she told me she did and she thought the world of him and,

you know, she really depended on him to do things for her and I know

that he did do it.

There is no evidence in record to suggest that Ms. Haynes did not know that Mr. and Mrs.

Hughes were performing these tasks nor is there any evidence to suggest that Ms. Haynes

declined to accept help from the Hughes. Consequently, the evidence in this record does not

preponderate against a finding that Ms. Haynes expressly, or at the very least impliedly,

requested these services of Mr. and Mrs. Hughes.

 The issue here is whether Mr. and Mrs. Hughes expected payment for these services at

the time they were rendered. The record is replete with evidence that Ms. Haynes was very

independent and did not like to be beholden to anyone. Consequently, she paid her bills in a

timely manner. There is also evidence that Mr. and Mrs. Hughes received some payments at the

time they rendered the services:

A. [by Mr. Hughes] Well, everything that I done [sic] for her [Ms.

Haynes] like working on the house and everything like that, she

always paid me for.
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Q. Uh-huh.

A. She always paid me because she said, “You’ve got expenses and

you’ve got men to pay and everything.” I was compensated for that.

I worked on her buildings uptown. I worked on her buildings

downtown. She had three or four houses over there and I worked on

them. She had–

Q. You’re admitting that the bigger jobs she paid you for.

A. Oh, yes, she always paid me.

On cross-examination, Mrs. Hughes testified, in relevant part, as follows:

Q. And isn’t it a fact also that when you [Mrs. Hughes] went over

there and took her [Ms. Haynes] food from time to time that she

would pay you cash out of her purse, wouldn’t she?

A. No.

Q. She never paid you?

A. She would give me $5, $10. She would say, “Take this and buy

the grandbaby a toy” or something to that effect.

* * *

Q. Okay, how much has she [Ms. Haynes] paid you [Mrs. Hughes]?

A. Like $15, $20...

There is no evidence in the record to dispute the fact that, when payment was expected,

the Hugheses were compensated upon completion of the services. The undisputed testimony

concerning Ms. Haynes’ insistence on paying people for their services at the time they were

rendered indicates that, if payment was expected, it was given at or near the time that the services

were completed. Moreover, the note which was admitted into evidence supports an

understanding that the services not paid for when rendered were rendered gratuitously. The note

explicitly states that payment is to be made “after” Ms. Haynes’ death for “the things you have

done for me over the years and haven’t been paid for.” Any expectation of payment arose only

sometime after the services were complete and not at the time of performing, as required under

quasi-contract:
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Q. Did you [Mr. Hughes and Ms. Haynes] finally have an

understanding about there would be some payment for what you

had done?

A. Right.

This testimony indicates that the Hugheses may have had some expectation for payment

from the estate after Ms. Haynes’ death. If the services were rendered in the hope or expectation

of some provision in Ms. Haynes’ will, and without any other contract for payment, there can be

no recovery because of the failure of such testamentary provision. See Cobble v. McCamey, 790

S.W.2d 279, 281 (Tenn. Ct. App. 1989). Obviously, the note put into evidence does not satisfy

the requirements for a testamentary disposition.

The evidence preponderates against the trial court’s finding that the Hugheses were

entitled to $75,000. We, therefore, pretermit the issue raised by Appellees concerning the

amount of the claim.

The Order of the trial court granting Appellees’ claim against the Estate is reversed, and

the case is remanded to the probate court for such further proceedings as are necessary. Costs of

this appeal are assessed against Appellees, Kenneth Hughes and Elaine Hughes.

_________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE,

W.S.