IN RE: ESTATE OF HAROLD L.         )
JENKINS, Deceased,                 )
                                   )
HUGH C. CARDEN and DONALD          )    Appeal No.
W. GARIS as Co-Executors of the    )    01A01-9709-CH-00500
HAROLD L. JENKINS Estate,          )
                                   )


VS.
      Plaintiffs/Appellees,        )
                                   )
                                   )
                                                         FILED
                                   )
JONI L. JENKINS and KATHY L.       )                      May 6, 1998
JENKINS,                           )
                                   )    Sumner Probate Cecil W. Crowson
      Defendants/Appellants.       )    No. 93P-30    Appellate Court Clerk




                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE


  APPEAL FROM THE CHANCERY PROBATE COURT OF SUMNER COUNTY
                AT HENDERSONVILLE, TENNESSEE

                HONORABLE THOMAS E. GRAY, CHANCELLOR


      Denty Cheatham, BPR #3993
      Rose Palermo, BPR #3330
      CHEATHAM & PALERMO
      43 Music Square West
      Nashville, Tennessee 37203
      ATTORNEYS FOR PLAINTIFFS/APPELLEES


      Charles W. McElroy
      BOULT, CUMMINGS, CONNERS & BERRY, PLC
      414 Union Street, Suite 1600
      P.O. Box 198062
      Nashville, Tennessee 37219
      ATTORNEY FOR DEFENDANTS/APPELLANTS


                   MODIFIED IN PART, AFFIRMED IN PART,
                     REVERSED IN PART, REMANDED.



                                   HENRY F. TODD
                                   PRESIDING JUDGE, MIDDLE SECTION


CONCURS:
BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
IN RE: ESTATE OF HAROLD L.                     )
JENKINS, Deceased,                             )
                                               )
HUGH C. CARDEN and DONALD                      )        Appeal No.
W. GARIS as Co-Executors of the                )        01A01-9709-CH-00500
HAROLD L. JENKINS Estate,                      )
                                               )
       Plaintiffs/Appellees,                   )
                                               )
VS.                                            )
                                               )
JONI L. JENKINS and KATHY L.                   )
JENKINS,                                       )
                                               )        Sumner Probate
       Defendants/Appellants.                  )        No. 93P-30



                                     OPINION

       This is yet another chapter in the administration of the estate of Harold L. Jenkins, a

popular entertainer whose stage name was “Conway Twitty.” The executors initiated the present

proceeding to resolve disputed rights of three devises in respect to the collection from them of

certain charges appearing on the records of the deceased. The Probate Court resolved the issues

in favor of the executors, and two of the devises appealed.



       The complaint of the executors alleged in pertinent substance:



         During the lifetime of the late Harold L. Jenkins, he paid certain salaries to his adult

 children, Michael Jenkins, Kathy Jenkins, Joni Jenkins, and Jimmy Jenkins, and in

 addition, from time to time after they reached their majority, he made various payments on

 debts owed by them, or directly to them, to allow them to purchase certain items or pay

 certain expenses.



         Harold L. Jenkins requested his employees who kept his books and records to keep

 an account of all of these payments made by him to or for his adult children. Occasionally

 one of the children would make a payment, reducing the balance owed on that child’s

 account, and occasionally charges would be made against the accounts for rent owed by


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 them on their homes at Twitty City, when such rent was not deducted from the salaries he

 paid to them. Each of these accounts of his adult children was listed as an “loan

 receivable” account on Mr. Jenkins’ personal books and records, which were kept as part

 of the records of his business proprietorship known as Twitty Enterprises.



         The Internal Revenue Service requires that interest be imputed and income tax paid

 on the interest, by a parent, if the child owes the parent a debt of more than $10,000.00.

 Interest upon such debts of his children was reported and income tax was paid thereon by

 deceased.



         Although the late Harold Jenkins never proposed that any legal action be taken

 against his adult children to collect these accounts, on more than one occasion he told

 Laurie Thompson Tucker, his accountant, that if there was any unpaid balance on these

 accounts at this death, the amount would be taken out of that child’s inheritance.



         At the time of Mr. Jenkins’ death Kathy Jenkins owed her father $59,620.00,

 according to her “loans receivable account” maintained by her father’s bookkeepers and

 accountants. The “loans receivable” account of Joni Jenkins showed a debt of $4,311.00

 owed by her to her father.



       The appellants answered denying any indebtedness to the estate asserting that the benefits

received from deceased were gifts, and pleading the statute of limitations.



       The Probate Judge heard the evidence without a jury and filed a memorandum stating:

                       The late Mr. Jenkins was a generous and kind person
               to his children and to his employees. He allowed charges for
               personal expenses to be made to his business by his children
               and other employees and the children’s spouses; his business
               paid the expenses and charged the child or other employees or
               child’s spouse on an account maintained to keep a record of
               such transactions.
                                            ----

                                            -3-
        Similarly, during part of this time Kathy Jenkins was
married to and lived at Twitty City with Bruce Harris and
Gary Seybold, and the entries on her account reflect that
during those marriages Mr. Seybold and Mr. Harris received
some payments which were charged to the account of Kathy
Jenkins, and they made some payments to reduce the unpaid
balance shown on her account.
                            ----
        The testimony of Kathy and Joni Jenkins regarding the
accounts is not credible. They knew that they made charges
and that a record was being kept and that they were expected
to make repayment. They knew when their father was not
expecting repayment. Joni knew that no repayment was
expected for some hospital expenses incurred by her and paid
by her father. Kathy knew that her father did not expect
repayment for some clothes purchased by her when she was
working on a career in the music industry.

        The credibility of Mickey Jenkins, former spouse of
the deceased and the mother of Joni, Kathy and Jimmy
Jenkins was impeached as to her testimony concerning the
furnishings of the condominiums and that she did not know
that her children, Kathy, Joni or Jimmy, were indebted to the
late Harold L. Jenkins.
                            ----
        Twitty City was constructed in the early 1980's in
Sumner County, Tennessee. As a part of the complex there
were condominiums owned by Harold L. Jenkins d/b/a
Conway Twitty Enterprises. After construction of Twitty
City, each of Harold L. Jenkins’ children, Michael, Joni,
Kathy and Jimmy, rented a condominium from their father
and each was an employee of Conway Twitty Enterprises.
Each child paid rent on his/her condominium; each child was
due and received a salary and from time to time, generally at
Christmas, each received a bonus.

       Charges to Conway Twitty Enterprises for personal
expenses were at times made by Michael, Joni, Kathy or
Jimmy. Other employees at times made a charge to Conway
Twitty Enterprises for a personal expense.

        At the direction of Harold L. Jenkins, an account was
maintained in the name of each child, employee, as a record
of continuing transactions between the child, employee, and
their father’s business Twitty Enterprises. These continuing
transactions ended with the death of Harold L. Jenkins.

         The Court finds these accounts were mutual as
contemplated by T.C.A. 28-3-112, and that the time for the
running of the statute of limitations is computed from the date
of the last item since there is no showing in this cause that an
individual account was liquidated and a balance struck.
                              ----
         Mutual agreement may never have been expressed, but
it was clearly implied. Checks were accepted as loans;
charges for personal expenses to Conway Twitty Enterprises


                              -4-
              were made by Kathy and Joni Jenkins. Repayment and
              reimbursement were made by Kathy and Joni Jenkins.

                     A contractual obligation was created between Conway
              Twitty Enterprises and Kathy and Joni Jenkins.

                      Harold L. Jenkins, deceased, did at times make gifts
              to his children. However, the accounts before the Court were
              not gifts.
                                          ----
                      No evidence was presented that Kathy Jenkins or Joni
              Jenkins consented or gave permission for a spouse to bind
              either of them on the accounts maintained by Conway Twitty
              Enterprises. No evidence was presented that Jimmy Jenkins
              expressly consented to his wife being an agent for him.

                     Examination of Exhibit I, the account for Kathy
              Jenkins, reveals a Bruce Harris balance of $850.00 carried
              forward to the account of Kathy Jenkins. Bruce Harris is
              former spouse of Kathy Jenkins. This $850.00 is deducted
              from the $59,619.66 shown as owed by Kathy Jenkins to
              leave her a balance of $58,769.66.

                      From the unpaid balance of $4,311.38 ascribed to Joni
              Jenkins, the Court deducts the $2,000.00 shown debited to
              Chris Prater, former spouse of Joni Jenkins, on the 24th day
              of June, 1983. The back up document for the $2,000.00 debit
              is a copy of a check for $2,000.00 made payable to the order
              of Chris Prater and endorsed by him. The memo on the check
              shows “loan”. (See Exhibit 2.) The balance owed by Joni
              Jenkins is $2,311.38.


       The judgment of the Probate Court states:

                     1.      Judgment is entered in favor of the estate of
              Harold L. Jenkins, deceased, against Kathy Jenkins in the
              amount of FIFTY-EIGHT THOUSAND SEVEN HUNDRED
              SIXTY-NINE DOLLARS AND SIXTY-SIX CENTS
              ($58,769.66) for which execution may issue, if necessary.

                     2.    Judgment is entered in favor of the estate of
              Harold L. Jenkins, deceased, against Joni Jenkins in the
              amount of TWO THOUSAND THREE HUNDRED
              ELEVEN DOLLARS AND THIRTY-EIGHT CENTS
              ($2,311.38).


The appellants present the following issues:

                      1.     Whether the trial court erred in finding
              enforceable obligations on behalf of the appellants to
              reimburse the estate for debts allegedly incurred during the
              decedent’s lifetime in the absence of evidence of mutual
              assent?



                                          -5-
                       2.      Whether the evidence preponderates against
               the trial court’s finding of an obligation to repay any sums
               that may have been advanced to the appellants during the
               decedent’s lifetime?

                      3.     Whether the trial court erred in finding
               appellant Kathy Jenkins liable for payments made for the
               benefit of others, in the absence of a written agreement
               undertaking to answer for the debts of such persons?

                       4.      Whether the evidence clearly preponderates
               against the trial court’s finding that the only witnesses with
               direct knowledge of the transactions comprising the claims in
               this case was not credible.

                        5.      Whether the evidence preponderates against
               the trial court’s finding of mutual accounts so as to avoid the
               application of the statute of limitations to bar recovery of all
               or a part of the alleged obligations, to the extent they were
               otherwise shown to exist?


The executors state a single issue as follows:

                      1.       Where at his death a father had paid salaries
               and rented homes to his four adult children for several years,
               through his business; and he had also maintained business
               accounts of transactions with each child which showed
               balances due him, which only his two daughters disputed; did
               the probate court err in entering a judgment on the accounts
               in favor of the father’s estate, against the daughters?



       It appears from the record that the amounts which the executors seek to recover from the

children of deceased do not exceed the amount of distribution to which each of them is entitled.

As a result, this action may be based upon the law of advancements.



       An advancement is an irrevocable gift by a parent in anticipation of the child’s share in

the parent’s estate. Jones v. Jones, 163 Tenn. 237, 43 S.W.2d 205 (1931).



       In the present case, this Court has experienced some difficulty in locating trustworthy

evidence of the advancements asserted by the executors. T.C.A. § 24-1-203 reads as follows:

                      Transactions with decedent or ward. - In actions or
               proceedings by or against executors, administrators, or
               guardians, in which judgments may be rendered for or against
               them, neither party shall be allowed to testify against the other

                                             -6-
               as to any transaction with or statement by the testator,
               intestate, or ward, unless called to testify thereto by the
               opposite party. Provided, if a corporation be a party, this
               disqualification shall extend to its officers of every grade and
               its directors.


       The failure to object may constitute a waiver of the exclusion. Rose v. Stalcup, Tenn.

App. 1987, 731 S.W.2d 541.



       The executors offered in evidence copies of partial summaries of account ledgers

maintained in the office of the business of deceased.



       TRE - Rule 803(6) allows the admission of:

                        (6) Records of Regularly Conducted Activity. - A
               memorandum, report, record, or data compilation in any form
               of acts, events, conditions, opinions, or diagnoses made at or
               near the time by or from information transmitted by a person
               with knowledge and a business duty to record or transmit if
               kept in the course of a regularly conducted business activity
               and if it was the regular practice of that business activity to
               make the memorandum, report, record, or data compilation,
               all as shown by the testimony of the custodian or other
               qualified witness, unless the source of information or the
               method or circumstances of preparation indicate lack of
               trustworthiness. The term “business” as used on this
               paragraph includes every kind of business, institution,
               association, profession, occupation, and calling, whether or
               not conducted for profit.


       TRE Rule 1006 provides:

                      Rule 1006. Summaries. - The contents of voluminous
               writings, recordings, or photographs which cannot
               conveniently be examined in court may be presented in the
               form of a chart, summary or calculation. The originals or
               duplicates shall be made available for examination or
               copying, or both, by other parties at reasonable times and
               places. The court may order that they be produced in court.


       There is evidence that the “source of information or method or circumstances of

preparation indicate lack of trustworthiness.”




                                                 -7-
         This appeal presents a melange of legal questions against a background of uncertain

facts.



         The deceased was an affluent entertainer with complicated business and family

arrangements. For his business dealings he had a “controller” and an accountant who became

the executors of his estate. They undertook to keep an accurate record of his business affairs

with limited and sketchy information received from transactions involving business funds and

such personal transactions as the deceased, or others reported to them orally. The controller

admitted that he could not certify that the records kept under his supervision regarding the

financial relations of deceased with his children were complete or completely accurate.



         The true facts as to what the intent of the deceased may have been as to classification of

his gifts as advancements or loans, are obscured by the hearsay evidence rule and the “Dead

Man’s Statute.”



         Whatever new law might be declared regarding the evasion of the effect of the dead

man’s statute by use of “business records” is rendered inconclusive by the loose and nebulous

dealings and record keeping of deceased and his children.



         The record relied upon by the executors simply fails to qualify as competent evidence

because preponderance of the evidence in this record shows that:

                “[T]he source of information or method or circumstances of
                preparation indicate lack of trustworthiness.”


         The record shows that the deceased set an “allowance” for the furnishings, special

fixtures and decoration of the condominiums which he built and rented to his children and that

expenses incurred by each child in excess of the allowance was charged to that child. However,

the record also shows that a substantial part of the improvements charged to the children




                                                -8-
remained in place when the children were evicted, and the sale price was enhanced by such

improvements.



       With two exceptions, there is no evidence that any of the heirs of deceased ever agreed

with the father or his executors upon any particular amount of debt to deceased.



       During cross-examination of Kathy L. Jenkins, she and her counsel admitted that she

owed her father $1,524.16. Another child, Jimmy Jenkins, offered no defense to the $3,279.25

claim against him, and did not participate in this appeal.



       For the foregoing reasons, the judgment against Kathy Jenkins is reduced to $1,524.16;

the judgment against Jimmy Jenkins in the amount of $3,279.25 is affirmed; and the judgments

against the remaining defendants are reversed and vacated. Upon remand, the Trial Court is

directed to equitably re-assess the costs accrued in that court. The costs on appeal are assessed

against the executors to be paid out of the funds of the estate. The cause is remanded for further

proceedings in conformity with this opinion.



                      MODIFIED IN PART, AFFIRMED IN PART,
                        REVERSED IN PART, REMANDED.




                                                      _________________________________
                                                      HENRY F. TODD
                                                      PRESIDING JUDGE, MIDDLE SECTION



CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE



                                               -9-
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