### 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 E LIZABETH 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 Septem ber 4, 2003

This appeal involves a claim filed against an estate for recover

y for personal services ren dered by claimants, husband and wife, to the decedent. The probate court g rantedthe claim

. Estate appeals. We reverse.
Tenn. R. App.P. 3; Ap peal as of Rig ht; Judgment of the P

robate C ourt Reversed and Remanded W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which D AVID R. F ARMER , J. and H OLLY M. K IRBY , J., joined. Mark Stewart, Winchester, For Appellant, Estate of Elizabeth A. Hay nes Mickey Hall, Winchester, F or Appellees, Kenneth Hughes and Ela ine Hughes OPINION This is an act

ion to rec over com

pensatio n from an

estate f or perso nal services render ed to the decedent. On September 26, 2001, Elizabeth A. Hay nes (“Ms. Hay

nes,” or “Dec edent”) died testate at the age of 96 and her will was admitted to proba te by order

dated September 27, 2001. For several ye ars prio

r to her d eath, Ke nneth Hughes (“Mr. Hu ghes” ) and his wife, Ela ine Hughes (“Mr s. Hughes,” and together with Mr. Hughes , “Plaintif fs,” or “Appellee s”), had

done var ious jobs f

or Ms. Haynessuch as ma

intenanc e and re

pair of her heat

ing sy stem, dail

y meals, driving, gardening, a nd general maintenance work. On February 1, 2002, Mr. and Mr s. Hughes filed a Claim against the Estate of Elizabeth A. Hayne s (“Estate,” “Defendant,” or “Appellant”). The Claim reads, in relevant part, asfollows:

2. Nature of

Claim. Claimants allege the decedent was indebted to claimant s by reason o f services provided to decedent by the-2- claimant s, as a state

ment sig ned by

the decedent that

is a tta ched to this claim attests. 3. Amount of Claim. Claimants make claim for $150,000.00. No payment has bee

n received since decedent’s de ath. As an attachment

to their c laim, Appe

llees fil ed a “sta

tement,”written b y Mr . Hughe s, signed b y Ms

. Hay nes, and witnesse d by

Virgini a Kocha

ns, which reads a s follows: Date Aug. 25 = 2001 Kenneth, After I am gone I

want you [and] Elaine to be paid $150,000 dollars forall t he things you ha

ve done for me over the y ears and hav en’ t been paid for. I also want Wilson Jones to have 50,000 dollars for all things he has done and wasn’t sufficien

tly p aid for. In a

ddition to w ill. I w ant you [and] Elaine to have Mickey my dog a nd 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. Hay nes /S/ Virgini a Kocha ns /S/ Witness Kenneth Hughes/S/ A hearing on Appell ees’ cl aim

was held in the Probate Court of Franklin County , Tennessee on July 8, 2002. An Order was ente red on July 12, 2002, which re ads, in re levant pa rt, as fo llows: This c ause was heard on July 8, 2002 on a claim for servic e rendered. The Court heard several witnesses and a rg uments of counsel. The Court

finds as f ollows: 1. Exhibit #1 is a

writing signed b y Mi ss Hay

nes with w itnesses. This writing proposed to acknowledge $150,000 owing to Mr. & Mrs. Kenneth Hughes . This writ

ing also proposed to have Mr s. Kenne

th Hughes have an d take ca re of he r dog, a most priz e d possession of Miss Hay nes.-3- 2. Plai ntiff and

plaintiff ’s witnes ses testif

ied about daily visits a n d service s perfor

med for M iss Hay

nes over severa l ye ars. 3. Value of this servi ce was va lued at $80,000 to $85,000 by Mr. Hughes , and $75, 000 to $80, 000 by Mrs. Hug

hes. 4. Defendant’s witnesses agreed that the p laintiff s were a t the home on a regu

lar base s. Most witnesses testifi ed that the Hughes perfor med services for

Miss Hay

nes on a d aily

basis. 5. Mr. Tay

lor, a wit ness for the defe ndant tes tified tha

t he saw t he Hughes family at the house, bu t did no t recall seeing any work pe rfor me d b y th e H ug he s f am il y. 6. Mr. Taylor ve

rified Mr. Hughes was concer ned about treatment and medication that was given to Miss Hay nes. The employee was terminated. 7. N o one from the defendant contested the value of se rvices render ed by Mr. and Mr s. Hughe s. 8. None of the beneficiaries for the e state w ere pr esent in court or voiced a ny o bjection to the cla im of Mr. a

nd Mrs. Hu ghes. 9. That services were rendered by M r. and Mr s. Hughe s to the es tate of Miss Ha

yne s. 10. That exhibit #1 is conf irmation o f Miss Hay

nes’ des ir e to p ay Mr. and Mr s. Hughe s. It is theref ore ORD ERED , ADJUDGED AND DECREED that Kenneth Hughes and wife Elaine Hughes shall have and re cover from the Estat e of Miss E

lizabeth Haynes f or services rendered in the amount of

$75,000/Se

venty -Five T

housand D ollars plu s the cost

. Therefore a judgment of $75,000 is entered agains tthe esta

te of El iz ab et h A . H ayn es fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y. The Estate appeals from this Order and raises o ne issue f

or our re view, as stated in

its brief: Whether th

e trial c ourt err

ed as a ma

tter of la w in its award of $75,000.00 for services rende red, in the claim of Kenneth Hughesagains t the Esta

te of Eliza

beth A. Ha

yne s.-4-

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 ag ainst the findings, we must affirm, absent error of la w. See Tenn. R. App. P. 13(d).

Whether the tria l court e rred as a

matte r of law in its award of $75 ,000. 00 for

serv ices 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 e state for services rendered to a decede nt: In asserting a claim against an estate for ser vices rendered the decede nt, the cause of action necessarily is based upon either

contract or quasi contract.... To br

ing a co ntract in

to existence there must be an offer and an acceptanc e of that offer. The offer a nd acceptance may be expressed or

implied from the parties’ conduct.... Contra cts implied in fact arise under circumstances which, according to the ordinary c o urs e of dealing and common understanding of men, show a mutual intention to contract. Such an agreement

may result as a le gal inference from th e facts and circumstances of the case.... In order to make out an implied contract for

the rendition of service s, facts and circumstances must be shown which amount to a r eque st for services, which is the offer to contract, and the performance

of the requested services, which is the acc eptance of the offer.... As to services performed by a member of a family

on beha lf o f another member of the same family , there is a presum ption, which grows weaker as the relationship recedes, that the services a re re nd er ed gr at ui to us ly, fro m motives of

affec tion and du

ty, and to ent

itle one in

that situa

tion to recover compensa

tion there for, the burden isupon them t

o overco me the presumption by s howing either an expressed contract or such e xceptional facts and circumstances as will establish an intentio n on t he part to cha rge and on the other part to pay , notwithstanding the relationship of kinship....-5- Where one renders services to another in the hope or ex pec tation of a leg acy , devise, or other provision

by will for his benefit , wi th ou t a ny c on tr ac t, ex pr es s o r i mp li ed , b ut re lyi ng so lely upon the generosity

of the person for whom such serv ic es were rendered, he cannot recover for such ser vices because of the fa ilure of such person to make such testamentary provision in his behalf.... Therefore, if

the plaintiffs establish that the decede nt expressly or implied

ly requested

the services, and if

plaintiffs prove that they rende

red those services with theexpectation that they were to be paid in

some manner for

those services, then a contract is made outentitling the plaint i ffs to recover against the estate for the reasona ble value of those s ervice s. This con tract mus t be prove

n 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 sa tisfied neither the statut ory require ments for will codic ils nor the

require ments for an expres s contra

ct. Conseque ntly , Mr. and M

rs. Hughes proc eeded o n the theo ry of quasi c ontract

in their c laim ag ai ns t t he Es ta te . In ad di ti on , a lt ho ug h M r. Hu gh es , a t s ev er al po in ts in hi s t es ti mo ny, mentioned that Ms. Haynes wa s like a mother to him, we note that the Hughes were not re lated by either blood or mar

riage to Ms. Hay

nes. Therefore, there is no presumption that the service s we re pe rfor me d g ra tu it ou sl y. As stated above, in order to make out their claim for compensa tion for services rendered to Ms. Haynes on the g

rounds of quasi contract, Mr. and Mrs. Hughes must satisfy two criteria: (1) that M s. Hay

nes expre ssly

or implied

ly r equeste d the ser

vices and (2) tha

t Mr. and M

rs. Hughes performed those service s with the expectation that they were to be paid in some manner. Turning to the record in this case, there is ample e vidence to support a finding that Mr. and Mrs. H

ughes p erformed numerou s tasks fo r Ms. Hay

nes from 1993 until h

er deat h in Septembe r 2001. We a

lso find tha

t there issufficie

nt evidence to supp ort a find ing that Ms. Haynes e ither expressly or impliedly requested these services. Mr. Hug hes testified, in relevant part, asfollows:

Q. When [Ms. Ha

yne s] had that new heater put in, did y ou handle all the details of having it done? A. She [Ms. Haynes] asked me to recommend w ho and to come and oversee it and I did...-6-

Elaine H ughes a lso testif ied conc erning

Ms. Hay nes requ ests as fo llows: Q.

.. .And were y ou [Mrs. Hughes] aware that he [Mr. Hug hes ] worked o n the fur

nace all those time s? A. Oh, yes, bec ause say if he wasn’t th ere–he r [Ms. Hay

nes’] little hy per voice–you know, she [Ms. Hay nes] would want hi m [Mr

. Hughes] to come over there as soon as he g ot in. Brenda Farris, an ac quaintance of Ms. Hay nes and the Hughes, testified, in pertinent part, asfollows:

Q. All ri gh t. Do you [Ms. Farris] know what Ms. Hay nes thought about thes e ser

vice s [per form ed by Mr. a nd Mr s. Hug

hes]? A. She [Ms. Haynes] alway s told me that she didn’tknow what she’d do wit hout K enne th [Hu ghe s]. Clayton Couch, an acqua

intance of Ms. Hay

nes, 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 h im a nd, you know, she really

depended on him to do things for her and I know that he di d do it. There isno eviden

ce in re cord to su gges t that Ms. H aynes did not know that

Mr. and Mr s. Hughes were performing

these tasks nor is there any evidence to suggest that Ms. Hay nes declined to accept help from the Hughe s. Consequently, the evidence in this record does not pr ep on de ra te ag ai ns t a fi nd in g t ha t M s. Ha yne s e xp re ss ly, or at th e v er y le as t i mp li ed ly, request ed these service s of Mr. a

nd Mrs. Hu ghes. The issue here is whether Mr. and Mrs. Hug hes expected payme

nt for these services at the time they were

rendered. The record is reple te with evidence that Ms. Hay nes was very independent and did not like to be beholden to any one. Consequently, she paid he r bills in a timely manner. Ther

e is also evidence that Mr. and Mrs. Hughes re ceived some pay

ments at the time they render ed the se rvices: A. [by M r. Hugh es] Well, ev ery

thing tha t I don e [sic] for her [Ms. Hay nes] like work

ing on the

house an d every

thing lik e that, sh e always paid me f

or.-7- Q. Uh-huh. A. She always paid me because she said, “You’ve got expenses and you’ve got men to pay

and every

thing.” I wa s compens ated for that. I worked on her buil dings upto wn. I work ed on h er bui ldin gs downtown. She had three or four houses over there a nd I worked on them. She had– Q. You’re admitting that the bigge r jobs she paid you for. A. Oh, yes, she a

lways paid me. On cross -examinat

ion, Mrs. H

ughes te stified, in releva

nt part, a s follows: Q. And isn’t it a fact also that when y ou [Mrs. Hu ghes] went over there and took her [Ms. Haynes] food from time to time that she would pay y

ou cash out of her purse, wouldn’t she? A. No. Q. She never paid y ou? A. She would give m

e $5, $10. She would say, “Ta ke this and buy the gra ndbaby a toy ” or some

thing to t hat eff ect. * * * Q. Okay, how

much has s he [Ms . Hay

nes] p aid y

ou [Mr s. Hug

hes]? A. Like $15, $20... There is no evidence in the record to dispute the fa ct that, when pay

ment was expected, the Hugheses were compensa ted upon completion of the services. The undisputed testimony concerning Ms. Hay

nes’ insistence on pay

ing people for their services at the time they were rendered indicates that, if pay ment was expected, it was given at or near the time that the se rvices were completed. Moreover, the note which w as admitted into evidence supports an understa nding tha t the serv ices not p aid for w

hen rend ered we re rend ered g ratuitous ly. The note explicitly states that pay

ment is to be made “after ” Ms. Hayne s’ death for “the things y ou have done for me over the y

ears and haven’t be en paid for . ” Any expectat ion of pay

ment aro se only sometime after the services were complete and not at the time of performing, as required unde r quasi-c ontract :-8- Q. Did you [Mr. Hughe s and Ms. Haynes] finally have an understanding about there would be some pay ment for what you had done? A. Right. This testimony indicates that the Hug heses may ha

ve had some expectation for pay ment from the estate after Ms. Hay nes’ death. If the se

rvices were rendered in the hope or expectation of some provision in Ms. Haynes’ will, and without any other contra ct for pay ment, there can be no recovery

because of the failure of such testamenta ry 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 a gainst the trial court’s finding that the Hug heses 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 gra nting Appellees’ claim against the Estate is re versed, and the case is remanded to the probate court for such further proceedings as a re necessary . Costs of this appe al are a ssessed a gainst A ppellee s, Kenne

th Hughe s and Elaine Hugh es.

_________________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.