# FILED Ap ril 7, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE, W ESTERN SECTION AT JACKSON

_______________________________________________________ ) IN RE: ESTAT E OF MARION ) Henderson County Probate No. P-343 ENGLISH TRUETT, Deceased , ) ) C. A. No. 02A01-9605-PB-00118 ) )

______________________________________________________________________________ From the Probate Court of Henderson County at Lexington. Honorable Joe C. Morris, Chancellor
Carthel L. Smith, Jr. , Lexington, Tennessee Attorney for Respo ndent/Ap

pellant.

Howard F. D ouglass , Lexington, Tennessee Attorney for Petitioner/Appellee.

OPINION FILED: AFFIRMED

AND REMA NDED FARMER, J.
CRAWFORD, P.J., W.S. : (Concur s) HIGHERS, J. : (Concur s)

Rebecca H. Moore Brown appeals the trial court’s or der which awarded Appellee1 In the event of a spouse’s death, the surviving spouse is entitled to the following exempt

property from the deceased spouse’s esta te: [T]he family Bible and other books, the family automobile, all wearing appar el of the deceased, all household electrical applianc es, all household musical and other amuseme nt instrume

nts, and a ll househo ld and kitc

hen furn iture, a ppliance s, utensils a nd impleme

nts. T.C.A. § 30-2-101(a)(1) (Supp. 1988).

2 In the ev ent a spou se dies in testate, the survi ving spouse is entitle d to [A] reasonable allowance in money out of the e state for such surviving spouse’s maintenance during the period of one (1) yea r after the death of the spouse, accord ing to such

surviving

spouse’spreviousstandar d of living , taking in

to account the condition of the estate of the decea sed spouse. T.C.A. § 30-2-102(a) (Supp. 1988). Ellis Truett, Jr., one year’s s upport in t he amount

of $21,50 0, as well as exempt property, from the estate o f Truett ’s dece ased wif e, Maria n English Truett.

Ellis R. Truett, Jr., filed a petition to

set aside exempt pro

perty 1 a nd one yea

r of support 2 from the estate of his wife, Marian English True tt (the Decedent), who died intestate on October 23, 1989. Truett previously wa s appointed as administrator of his wife’s estate. Truett’s petition alleged that the Decedent’s e state had a value of approximately $39,500 and that True tt’s
a nticipated living expenses for one y ear were $21,500. Truett later filed a n initial inventory statement showing the following assets in the Decede nt’s estate:

1. Hilton Bond $10,000.00 2. Chrysler Bond $18,900.00 3. Miscellaneous furniture $ 5,000.00
Thus, the inventory showed the Decedent’s estate to be worth $33,900.

The Decedent al so was su rvive d by three a dult child ren fro m a prev ious marri age (c ol le ct iv el y, the Hazelwood chil dren). A ppella nt Rebecc a H. Moore Brown was the only one of the Decede

nt’s child ren to fil e an answ er to Tru ett’s pet it ion. In her answer , Brown raised, as an affirmative defense , that Tru ett was not entitle d to statuto ry support a nd exempt pr

operty because Truett previously wa

ived these rights in an

antenuptial agreement entere d into between Truett and the Dec edent.3 Truett also mentioned a coin collection which he already ha d given to one of the Decedent’s sons.

At trial, Truett testified that

he was in his e arly

60's whe n he marr ied the De

cedent. Shortly after th eir marriag e, True

tt and the D eceden

t entere d into a ve

rbal ag reemen t, which T

ruett describ ed as follows:

We had an agreement that the second spouse -- the surviving spouse could hold all the proper ti es together until the death of the secondspouse, and then the personal property , including fu rniture , would go to either her family

if it came from, you know -- from the Hazelwoo ds, or fr

om my family if it came

from the T

ruetts.

. . . . In either e vent, the survi ving spouse was suppo sed to -- could retain the property

during their lifetime.

Truett explained that the property mentioned in the agreement “only referred to the furniture, the household

furnishings.” Initially , Truett testified that the Hazelwood children, includ ing Brow n, could remove from the household all of the furniture that came f rom the Decedent’s family . The “Hazelwoodfurniture” included an antique corner cupboard, the master bedroom suite, twin beds, two chests of drawers, an antique poster bed, a n antique roc king chai r, an antique cedar chest, a table, some pictu

res, china, silve

rware, and an a

nti que te nnis rac quet. 3 Truett asked only that the Haze lwood children wait until after April 1996 to get the furniture bec ause Truett was expecting visitors that

month. Later in h

is testimon

y, however , Truett

indicated that he did not intend to abide by the agreement. With regard to his request for one ye ar’s sup port, Tru ett testif

ied that h is living expenses for

one yea r totaled $21,231.56. Truett acknowledged that a support award in the amount reque sted would

totally cons ume th

e Dec eden

t’s e state , aft

er the pay

ment o f funeral

exp enses , medical e xpenses, a

nd attorney ’s fees
.
At the trial’s conclusion, the tri al co urt awarded Truett one y ear’s support in the amount of $2 1, 50 0 a nd th e e xe mp t p ro pe rt y, including the Hazelwood furniture. On appeal, Brown conten ds that the tr

ial cour t erred in award ing Tru ett statut

ory support a

nd exempt pr

operty i n contradiction of the ma

rital ag reemen t previou sly

entere d into betw een Tru ett and the Dece dent. Ad di ti on al ly, Brown challenges the amount of statutory support awa rded, contending that the award4 Under the descent and distribution statutes, a surviving spouse does not include “[a]

person who was a party to a valid marital dissolution agreement or a va lid proceeding concluded by an order purporting to terminate all marital property rights.” T.C.A. § 31-1-102( b)(3) (Supp. 1988). did not represent Truett’s actual living expenses and that the awa rd was excessive given the value of the Decedent’s estate and True tt’s other financial resources.

As an initial matter, we must reject Brown’s arg ument that, by entering

into the foregoingagree

ment with the Dec edent, T

ruett effectively

waived his right to statutory support and exempt property. I

t is true that a spouse may wa ive his rights as a surviving spouse under the desce nt and distribution statutes by entering into an a gre ement which purports to terminate all marital propert y rights. Uhrig v. Pulliam , 713 S.W.2d 649, 653-54 (Ten n. 1986); T. C.A. § 31-1-102(b) (Supp. 1988). 4 In order to have the e ffect of waiving the

rights of a

surviving spouse, however, the agreement

must purport “to conclude all marital rights and to effect a full settlement thereof under al l contingencies.” In re Estate of Montesi , 682 S.W.2d 9 06, 911 (Tenn. 1984 ); ac cord Hall v . Jeffer s , 767 S.W.2d 654, 658 (Tenn. App. 1988).

The agree

ment in the

present case did not effe ctively

waive Tr

uett’s ri ghts as a surviving spouse because the agree ment did not pur

port to conclude

all marita l rights o f the Tru etts,
nor did it purp ort to eff

ect a full settle ment of the

ir marital rights under all contingencies. I nstead, the agreement merely

set forth what would happen to their household furnishings in the event of the death of either spouse. In that eve nt, the agreement gave

the surviving spouse the right to use the household

furnishings of the deceased spouse for the life of the survivor. Upon thesurvivor’s death, the household furnishings were to be distributed to each spouse’schildren according to whether the origin was “Hazelwood” or “Truett.”

In Montesi , our Suprem e Court recognize d that “[t]he re migh t be valid propert y settlement

agreements between

spouses executed for

limited pur

poses,” a nd affe cting “ only

a small portion of the tota

l assets of the parties.” 682 S.W.2d at 911. Such agreements, however, a re not effectiveto waive a surviving spouse’s rights under the descent and distribution statutes unless they purport t o conclude all marital property r ights. Id. ; see also Hall v. Je ffers , 767 S.W.2d 654, 658 (Tenn. App. 1988) (con cluding that, altho ugh oral pre marital a greem ent was b inding a

nd enfor ceable5 In 1993, the legislature amended section 30-2-102(a) by a dding the following sentence: The court may consider the totality of the circumstances in fixing the allowanc e authoriz ed by this s ection, i ncluding a ssets whic h may have

passed to the spouse outside probate. 1993 Tenn. Pub. Acts 449. This amendment appears to abrogate the Phipps court’sholding tha t, in awarding a year’s support, the trial court should not consider the surviving spouse’ s other assets. See 2 Robert Pritchard, Pritchard on the Law of Wills and Administrati on of Estates § 656, at 210 n.181 (Jack W. Robinson, Sr., & Jeff Mobley eds., 5th ed. 1994). The added against defendant, agr

eement’s language did not cle arly and plainly cut off or

abridge defendant’s rights as surviving spou se ). We hol d that the agree ment in the

present case is in

effec tive to constitute such a waiver of rights. Cf. Uhrig v. Pulliam , 713 S.W.2d 649, 651 (Tenn. 1986) (holding that antenuptial agreement was sufficie nt to waive rights of surviving spouse wher e survivor had renounced

“all her right, title and interest in and to” decea sed spouse’s estate). In accord ance with the foreg oing au

thoritie s, we note that an agreement which is ineffective to waive the rights of a surviving spouse ma

y st ill be enf orceab le aga

inst the surviving spouse as to the subject matter of the agreement. Montesi , 682 S.W.2d a t 906; Jeffer

s , 767 S.W.2d at 658.

As for Brown’s challen ge of th e amount o f statutor

y su pport aw arded, a

t the time of the Decedent’s death in October 1989, a surviving spouse’s other

financial resources did not affect his entitlement to a year ’s support under section 30-2-102(a). Phipps v. W atts , 781 S.W.2d 863, 867 (Tenn. App. 1989). In Phipps , the estate executor challenged the amount of support awarded to the dissenting widow on the basis that the widow had received a substantial amount of property and money outside the estate. I n rejecting the executor’s challeng e, the court stated:
[T]he executor

argue s that, sinc e the wido w is able t o prov ide for herself out of funds that passed to her as consequence of the death of the decedent, the court should reduce the amount aw arded. We can see

nothing in the statu

te that would allow t

he resul t sought by the executor. The cases interpreting the statute ha ve said that the statute is to be construed liberall y in favor of the right of the widow. Acuff v. Daniel , 215 Tenn. 520, 3 87 S.W. 2d 796 (19 65). We find no au

thority in Tenne ssee for

construing the st

atute to mean that the probate court should not allow a year’s suppo r t if the surviving spouse is able to support himself or herself. Phipps , 781 S.W.2d a

t 867; accord In re Estate of Bass , No. 02A0 1-95 04-CH -000 94, 19 96 WL 325582, at *2 (Tenn. App. June 11, 1996). 5 Ac co rd in gl y, we reject Brown’s arg ument that Truett’slanguage does not affect the disposition of the present case , however, because the amendment

was not in effect at the time of the decedent’s de ath, and the amendment is not to be applied retroactively. In re Estate of Bass , No. 02A01-9504-CH-00094, 1996 WL 325582, at *2 (Tenn. App. June

11, 1996) ; In re Estate of Fraker , No. 01A01-9411-GS-00528, 1995 WL 134514, at *2 (Tenn. App. Mar. 29, 1995).

6 We also reject Brown’s contention that the amount awarded did not represent Truett’s actual living expenses, inasmuch as this contention was not addressed in the argument portion of Brown’s b

rief on a ppeal.
7 Prior to enactment of this statute in 1967, a surviving spouse was entitled to a “liberal allowance” or a “suitable amount” for the year’s support, without regard to the estate’s solvency or insolvency. Redmon v. Fuller , 136 S.W.2d 724, 726 (Tenn. App. 1939) (citing Graham v. Stull , 22 S.W. 73 8 (Tenn. 1893)); 1 967 Tenn. Pub. Acts 1 46; see also 2 Robert Pritchard, other financial resources preclude d the amount of statutory support awa rded in this case. 6

In light of the rela tively modest value of the Decedent’s estate, howeve r, we initia

lly were tr oubl ed by the t rial c ourt’ s award of an am ount which deple ted a l arge portion of the estate. Upon the Decedent’s death, Truett, as the surviving spouse, was entitled to
[A] reason able allowance in money out of the estate for such surv iving spouse’s maintenance during the period of one (1) yea r aft e r the death of the spouse, according to such surviving spouse’s previous standardof living, taking into account the condition of the estate of the deceased spouse.
T.C.A. § 30-2-102(a) (Supp. 1988). In c onstruing this statute, the Phipps court sta ted that:

It appear s that the w ords “ta king into account the condition of the estate” refer

to a situation in which the estate isnot sufficient to pay the full year ’s support without serio us impairment or depletion
. Phipps , 781 S.W.2d at 86 7 (emphas is added) ; accord In re Estate of Fraker , No. 01A01-9411-GS-00528, 1995 WL 134514, at *3 (Tenn. App. Mar . 29, 1995). At trial, T ruett admitted that an award

in the amount requested, $21,500, would consume most of the Decedent’s estate.
Neverth

eless, we affirm

the amount of statutory support awa rdedin this case. Our research has produc ed little guidance as to what constitutes an excessive award under section 30-2-102(a). 7 In In re Estate of Bass , No. 02A01-9504-CH-00094, 1996 WL 325582, at *2 (Tenn.Pritchard on the Law of Wills and Administrati on of Estates § 662, at 217 (Jack W. Robinson,

Sr., & Jeff Mobley eds., 5th ed. 1994) (“No definite rule for de termining the amount of the allowance can be prescribed; but it should be made with reference to the actual condition of the family -- their ag es, heal

th, needs , social s tanding, a nd previo us manner

of living - - rathe

r than to the amoun

ts of the a ssets or to

the solve ncy or ins olvency o f the esta te.”). T his rule a ppears t o have been altered by the statute under conside ration here, which directs the trial court to take “into account the condition of the estate of the decea sed spouse.” T.C.A. § 30-2-102(a) (Supp. 1988). 8 In doing so, this court followed the rule “that only the personal property and not the re al property of the deceased is charge able with a year’s support.” Gray , 729 S.W.2d at 672 (citing Cate v. Cat

e , 43 S.W. 365 (Tenn. Ch. App. 1897)). The court did not specify the total value of the decedent’s estate in Gray
. App. June 11, 1996), this Court concluded thatt he estate was not seriously impaired or depleted where the award comprised less than half of the dece dent’s estate. There, the trial court awar ded a year’ s support of $14,000 out of an estate containing $33,665.21 in assets. Id. , at *1. In In re Estate of Gray , 729 S.W.2d 6 68, 672 (T enn. App. 1987), on the other hand, thisCourt permitted an award equal to the value of the decedent’s personal assets, $2,875.70, ther eby allowing

the year’ s support to deplete the asse ts. 8 In lig ht of thes e cases , we are

unprepa red to hol d that, as a

matter of law, the support awarded in this case, which comprised less than 75% of the Decedent’s personal assets, was excessive.
The trial court’s order is affirmed. Costs of this appeal are taxed to Appellant, for wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

__________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIG HERS, J. (Conc

urs)