FILED

August 18, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS 

AT KNOXVILLE

DOROTHY BALES ) HAMBLEN COUNTY

 ) 03A01-9710-CH-00496

Plaintiff-Appellant )

)

)

v . ) HON. THOMAS R. FRIERSON, II,

) CHANCELLOR 

 )

RENEE BALES SNYDER, )

DONNA BALES STEPP, and )

ANTHONY BALES )

)

Defendants-Appellees ) AFFIRMED AND REMANDED

JIM W. STAMBAUGH OF MORRISTOWN FOR APPELLANT

R. DAVID BENNER OF KNOXVILLE FOR RENEE BALES SNYDER and DONNA

BALES STEPP

KELLEY HINSLEY OF MORRISTOWN FOR ANTHONY BALES

 O P I N I O N

 Goddard, P.J. 

This is a suit by Plaintiff-Appellant Dorothy Bales

against Defendants-Appellees Renee Bales Snyder, Donna Bales

Stepp and Anthony Bales. Ms. Snyder and Ms. Stepp are her stepchildren, being the daughters by a prior marriage of her deceased

husband, Donnie Bales. Anthony Bales, who is a minor 14 years
1

31-1-105. Fraudulent conveyance to defeat share voidable. -- any

conveyances made fraudulently to children or others, with an intent to defeat

the surviving spouse of his distributive or elective share, is voidable at the

election of the surviving spouse.

2

old and is represented by a guardian a d litem , is the son of

Donnie Bales and Dorothy Bales. 

The amended complaint seeks to set aside a quitclaim

deed conveying two lots to the Defendants, alleging the

conveyance was in violation of T.C.A. 31-1-105. 1

The parties for the most part stipulated before the

Chancellor the facts they contend were necessary to determine the

issues raised, which are set out in the Defendants' brief as

follows:

1 ) The warranty deed dated April 21, 1967

conveying a portion of the property involved in this

case to Donnie Bales and his then wife Margie Bales, a

copy of which was made an exhibit.

2 ) The warranty deed dated October 21, 1971

conveying a portion of the property involved in this

case to Donnie Bales and then wife Margie Bales, a copy

of which was made an exhibit.

3 ) Margie Bales died in 1978.

4 ) Donnie Bales married Dorothy Bales on

December 20, 1980.

5 ) Renee Bales Snyder and Donna Bales Stepp are

the adult daughters of Donnie Bales and Margie Bales.

6 ) Anthony Bales is the minor son of Donnie

Bales and Dorothy Bales. He is represented in this

matter by guardian ad litem Kelley Hinsley.

7 ) On January 30, 1995, Donnie Bales executed a

quitclaim deed to Renee Snyder, Donna Stepp and Anthony

Bales, a copy of which was made an exhibit. 
3

8 ) On January 30, 1995, Donnie Bales made his

last will and testament, a copy of which was filed as

an exhibit.

9 ) Donnie Bales and Dorothy Bales lived in a

house located on the subject property throughout their

marriage.

The guardian ad litem , Kelley Hinsley, announced

an additional stipulation to the court as follows:

10) Anthony Bales, age 14, is in the custody of

his mother, Dorothy Bales.

11) Anthony Bales resides with his mother,

Dorothy Bales, in the house on the property that is the

subject of this suit.

Additionally, the Probate Court file was made

available to the judge for his examination for the

purpose of demonstrating that the Plaintiff, Dorothy

Bales had not filed a petition for an elective share in

the probate court, and the court found that no timely

election had been made.

At least three Tennessee cases have addressed the

considerations which should be given in applying the provisions

of T.C.A. 31-1-105. They are compiled in the case of Finley v.

Finley , 726 S.W.2d 923 (Tenn.App.1986). We now set out these

considerations, along with the proof in the record touching each:

1 . Whether the transfer was made with or with out consideration.

The quitclaim deeds recite consideration was $1.00 cash in

hand paid.

2 . The size of the trans fer in relation to th e husband's total

estate.
2

Although this date is not stipulated, it is a finding of fact by

the Chancellor, which apparently came from the probate file hereinafter

mentioned.

4

There is no evidence as to this point in the record.

3 . The time between the transfer and the husb and's death.

The transfer was made on January 30, 1995, and Mr. Bales

died on December 20, 1995. 2

4 . Relations which exist ed between the husban d and the wife at

the time of the trans fer.

There is no evidence as to this point in the record.

5 . The source from which the property came.

The property came to Mr. Bales and his first wife from

third parties, and Mr. Bales acquired the entire interest as

surviving tenant by the entirety.

6 . Whether the transfer was illusory.

There is no evidence as to this point in the record.

7 . Whether the wife was adequately provided f or in the will.

The Defendants were the beneficiaries of Mr. Bales' will.

Although a copy of the probate file was in the

possession of counsel for Defendants Snyder and Stepp and made

available to the Court and is referred to in the Chancellor's
5

memorandum opinion, it was not filed as an exhibit and,

consequently, is not a part of the record.

As already noted, the Chancellor concluded in light of

the stipulations and the dictates of Finley , that the Plaintiff

had not offered sufficient proof to set aside the deed and

dismissed her complaint. In doing so he employed the following

language:

Plaintiff next argues that Mr. Bales' conveyance

to his children was made fraudulently and with an

intent to defeat Plaintiff's elective share as

surviving spouse. Consequently, Plaintiff argues that

said conveyance is voidable at her election, T.C.A. 31-

1-105. Several factors must be considered in

determining whether one spouse intends to practice a

fraud upon the surviving spouse so as to defeat an

elective share, Sherrill v. Mallicote , 417 S.W.2d 798

(1967). Courts, however, do not mechanically list the

factors favorable to one party and those favorable to

another and simply add up the total in order to base a

judgment. Instead, Courts must consider the weight and

significance to be given to each factor under the facts

of each particular case, Finley v. Finley , 726 S.W.2d

923 (1986).

In the case sub judice, Plaintiff has failed to

carry her burden of proof so as to establish that the

transfer from Mr. Bales to his children was made

fraudulently with the intent to defeat the Plaintiff of

her elective share. Further, Plaintiff has failed to

file her petition for elective share within the time

limitations established by T.C.A. 31-4-102. 

Accordingly, said transfer will not be set aside on

this basis.

We also note, which we think is particularly

significant, there is no proof as to the value of Mr. Bales'

estate at the time of his death. It might very well have

amounted to a substantial sum from which, if not otherwise
6

barred, Ms. Bales could seek an elective share notwithstanding

the fact that she was not a devisee or legatee under his will.

In light of the foregoing, we conclude that the

Chancellor was correct in his conclusion of law and that his

judgment should be affirmed. 

For the foregoing reasons the judgment of the Trial

Court is affirmed and the cause remanded for collection of costs

below. Costs of appeal are adjudged against the Plaintiff and

her surety.

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Don T. McMurray, J.

________________________________

Charles D. Susano, Jr., J.