                   IN THE COURT OF APPEALS OF TENNESSEE
                        WESTERN SECTION AT JACKSON
______________________________________________________________________________

IN RE:                                     Henderson Chancery No. 8960
                                                C.A. No. 02A01-9611-CH-00270
JEWELL MANESS,

         Plaintiff,
                                                  Hon. Joe C. Morris, Chancellor
v.

ESTATE OF ACIE LEE MANESS,
Deceased; JAMES LEE MANESS,
                                                     FILED
WILLIE MANESS & EDWARD MANESS,                      November 12, 1997

         Defendants.                                Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
THOMAS ANDERSON, Lexington, Attorney for Plaintiff.

STEPHEN MILAM, Lexington, Attorney for Defendants.

REVERSED AND REMANDED

Opinion filed:
______________________________________________________________________________

TOMLIN, Sr. J.

         Mrs. Jewell Maness (“Plaintiff”) as administratrix of the estate of Acie Lee

Maness, her deceased husband, filed a petition in the Chancery Court of Henderson

County seeking to set aside or void a fraudulent conveyance. Named defendants were

the estate, along with James Lee M aness, Willie Maness and Edward Maness, the three

sons of plaintiff’s deceased husband, who were the grantees under a warranty deed

executed by Acie Lee M aness during his life- time. Plaintiff’s motion for sum mary

judgment was overruled, whereupon the case went to trial. Following a hearing, the

chancellor dismissed plaintiff’s petition. On appeal the sole issue for our consideration

is whether or not the chancellor erred in dismissing plaintiff’s petition. We are of the

opinion that the trial court did err. Accordingly we reverse and remand.

         Most if not all of the material facts are undisputed. Plaintiff and Acie Lee

Maness were married in February 1975. They rem ained married until his death in

August 1993. At the time of the m arriage her deceased husband was the owner of a

farm, containing approximately 330 acres, located in Henderson County, on which he

and his three sons by a previous marriage kept their individual herds of cattle. This

farm is the real estate that is the subject of this litigation. During the time that they were
married both parties worked outside the home. Plaintiff was employed at Brown Shoe

and Magnetek and her late husband was employed by the City of Lexington. The

parties’ enjoyed generally a good relationship during their m arriage. The only

differences of any substance arose from how their respective incom es were to be spent.

As a general rule plaintiff spent her money on the household bills, utilities, groceries

and the like and as a general rule Acie Lee Maness spent his money on the farm for

such items as buying farm equipment, cattle, sowing pastures, feeding the cattle and

making im provem ents on the farm such as fencing, dozer w ork and the building of a

catfish lake.

       The farm was m ortgaged for almost the entire period of tim e the parties were

married. D uring the period of their m arriage, Acie Lee Maness made regular paym ents

of principal and interest on the note secured by the mortgage. In point of fact, plaintiff

testified that her husband refused to pay any of the household expenses because he

contended that all of his income was needed to pay the farm expenses. Acie Lee

Maness paid off the mortgage in the fall of 1992.

       Acie Lee M aness acquired this farm in separate parcels prior to their marriage.

A portion of the farm had been inherited by him from members of his family. Other

parts of the farm were purchased by him from either relatives or a neighbor. The record

reflects that Acie Lee Maness spent much of his free time on the farm. Most of the

time he maintained a herd of cattle on the farm , amounting to 50 or more head. In

addition, each of his sons kept a small num ber of cattle on the farm as well. From time

to time each of the sons would assist their father in doing some of the farm

maintenance.

       It was acknowledged that Acie Lee Maness was in charge of the operation of the

farm and was responsible for paying the property taxes on it. James and Edward

Maness on a few occasions gave their father $100 to be applied to the property taxes.

At different times during his ownership of the farm A cie Lee Maness deeded each of

his sons an approximate eight (8) acre parcel of land at the edge of the farm. Two of

the sons testified that their father had promised them since they were young children

that they would have the farm som e day.


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       Plaintiff testified that approximately two weeks prior to her husband’s death

Acie Lee Maness told her that she was to receive a child’s part of the farm and

requested that she arrange for an attorney to come to their home to “fix the farm up.”

She stated that he never regained enough physical strength how ever to bring this about.

She further testified that Acie Lee Maness told her that if his sons got the farm that they

would have to pay for it.

       The record is uncontradicted that at no time during the marriage of the parties

and prior to the death of Acie Lee Maness did plaintiff have any knowledge of the

existence of a warranty deed by which Acie Lee Maness had transferred title to the

farm in question. Acie Lee M aness died on or about August 19, 1993. Plaintiff

testified that on Sunday afternoon or Monday following the burial of her husband on

Saturday Edward M aness told her about the deed. She was directed to the Register’s

Office of Henderson County, where she discovered that a warranty deed signed by her

late husband and dated June 14, 1984 had been recorded on August 24, 1993. The

deed conveyed title to his three sons, subject to a life estate being retained by Acie Lee

Maness. This was the first knowledge plaintiff had that the farm in question w as not a

part of Acie Lee M aness’ estate.

       The origin of the warranty deed in question was supplied by the testimony of

Steve Beal, a local attorney who prepared the deed, submitted by affidavit, as well as

the affidavit and live testimony of Belinda Maness, the wife of Willie Maness and a

certified court reporter in this area for many years. She testified that Acie Lee Maness

contacted her and requested that she recomm end a good attorney to draw up the deed,

whereupon she advised him that any attorney in town could accomplish this. Some

time thereafter, Steve Beal contacted her and requested that she get two persons to

witness the execution of a deed by Acie Lee M aness. Thereafter, she, Acie Lee M aness

and his attorney met at the hom e of friends of hers, Mike and Sandra Jones, where Mr.

Maness executed the deed conveying the farm to his three sons. The acknowledgment

of the execution of the deed was taken by attorney Beal. There were no signatures of

either Mr. or M rs. Jones identifying them as witnesses to this transaction.

       Later that afternoon, according to Belinda Maness, Acie Lee Maness came to her


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home. After Willie Maness, her husband, arrived, Acie Lee Maness presented the deed

to Willie Maness with specific instructions that he, Acie Lee Maness, did not want

anyone to know about it. Thereupon Willie Maness gave the deed to Belinda M aness

and instructed her to “take this and put it in the lock box”, which she did, and there the

deed remained until after the death of Acie Lee M aness.

       Both Ed Maness and James M aness testified that the first knowledge that each of

them had about the deed to their father’s farm was after their father’s death. Belinda

Maness testified that the deed was never discussed in the presence of the plaintiff and

that she was the one who retrieved the deed from the lock box following the death of

Acie Lee M aness.

       Plaintiff’s petition to set aside the conveyance as being fraudulent was filed

pursuant to the provisions of T.C.A. § 31-1-105 which reads as follows:


       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.


Cases which have previously dealt with this issue make it clear that the gravamen of

this action is whether or not the husband intended to practice fraud on his wife. In

Finley v. Finley, 726 S.W.2d 923 (Tenn. App. 1986) the eastern section of this court set

forth the following factors which were to be considered in determining if a conveyance

had been made with fraudulent intent. These factors are: (1) the consideration given for

the transfer, (2) the size of the transfer in relation to the deceased’s total estate, (3) the

time between the transfer and the transferor’s death, (4) the relations which existed

between the spouses at the time of the transfer, (5) the source from which the property

came, (6) whether the transfer was illusory, and (7) whether the surviving spouse was

adequately provided for in the w ill. Finley, 726 S.W.2d at 924.

       In Warren v. Compton, 626 S.W.2d 12 (Tenn. App. 1981), an earlier case from

the eastern section of this court that dealt with the same issue, the court stated:


       However, we do not lim it our considerations to those factors alone.
       Circumstances which establish fraudulent intent are as varied as the
       ingenuity of the human mind may devise. All facts and circumstances
       surrounding the transfer m ust be considered. Warren, 626 S.W.2d at 17.

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         Furthermore, as stated by this court in Sherrill v. Mallicote, 417 S.W.2d 798, 57

Tenn. App. 241 (Tenn. App. 1967): “In cases of this type there can be no fixed rule of

determining when a transfer or gift is fraudulent to a wife; each case must be

determined on its own facts and circumstances.” Id. at 802.

         Following the trial below, the chancellor wrote a letter to counsel for the parties

in which he set forth his reasons for ruling that the conveyance by the decedent was not

a fraudulent transfer. He noted that the following “facts” served to negate a fraudulent

intent: (a) The transfer of the property took place ten years before the death of M r.

Maness; (b) the relationship between Mr. Maness and Mrs. Maness over the years had

been a “good one”; (c) the farm was ancestral property and had been owned by Mr.

Maness before the marriage; and (d) the fact that Mr. Maness and his three sons had

worked the farm openly and continuously for years, with each one of them contributing

time, labor and incom e for the upkeep of the property. As to this factor the court

concluded that this was valuable consideration.

         In our review of the record, the evidence preponderates against three of the four

findings of fact by the chancellor, the exception being that the relationship between

husband and wife. This factor is in equipoise, in our opinion.

         As to the chancellor’s first finding, just because the transfer took place ten (10)

years before Mr. Maness’ death does not mean it wasn’t a fraudulent transfer. As to the

farm being ancestral property, the proof is to the effect that only a small portion of the

farm was actually inherited ancestral property. Lastly, the sons testified that the only

consideration given for the transfer was $10 paid to their father by Willie Maness, and

that they considered the labor by them and expenditures made by them in relation to the

farm as rent to their father for perm itting them to raise their cattle on their father’s

farm .

         In our opinion not only does the evidence preponderate against the conclusion

reached by the chancellor, but preponderates in favor of our conclusion that the transfer

was a fraudulent one. First of all, the transfer of the farm to the sons under the

circumstances was without consideration and w ithout the consent of his w ife.



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Secondly, the size of the transfer w as substantial in relation to the total assets of Mr.

Maness. Excluding the farm, the uncontradicted testimony is that as to the balance of

their combined estate, the personal property had a value of $67,000 and the non-farm

real estate $25,000. Plaintiff valued the farm property transferred at $800 an acre or

$266,400. Willie Maness testified that the farm land was worth $300 to $400 per acre,

and no more than $133,200. With either valuation, the farm is a substantial portion of

the estate.

       By far and away the most com pelling reason for holding that Mr. M aness

transferred this property with a fraudulent intent was the cloak of secrecy under which

the transfer was made. After employing an attorney to prepare the deed Mr. Maness

through his attorney requested a daughter-in-law to find two persons to “witness” the

execution of the deed. She did so by arranging a meeting at the friends’ home, where

the deed was signed by M r. Maness in their presence and notarized by the attorney.

The arranging for the execution of a warranty deed before third-party witnesses is in

essence a nullity and adds to the mystery.

       The desire for secrecy by Mr. Maness and his intent to insure that his wife knew

nothing about this transaction is further spelled out by his presenting the deed after

execution to his son Willie, with a specific admonition that no one was to be told about

this deed (including his other two sons) and Willie’s instruction to his wife that she

place the deed in their lock box, which she did. There it remained until some four or

five days after the death of Mr. Maness nine years later, when it w as recorded. Only

then was plaintiff advised about the existence of this document and its effect

upon her life.

       We reverse the decision of the trial court and hold that this conveyance

by Acie Lee Maness was a fraudulent conveyance insofar as his spouse, the

plaintiff, was concerned. It is hereby set aside and declared void. As a result

thereof, the property sought to be conveyed becomes a part of Acie Lee

Maness’ estate.

       There is nothing in this record to indicate whether Acie Lee Maness died



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testate or intestate. While it would appear that he died without a will, this court

is certain that the status of his estate will be made clear to the trial court upon

remand. This case is remanded to the Chancery Court of Henderson County for

the determination of what plaintiff’s marital rights are and what her

distributive share of the estate as the surviving widow would amount to. Costs in

this cause on appeal are taxed to defendants, for which execution may issue if

necessary.



                                       __________________________________________
                                       TOMLIN, Sr. J.


                                       __________________________________________
                                       CRAWFORD, P. J., W.S.     (CONCURS)


                                       __________________________________________
                                       HIGHERS, J.            (CONCURS)




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