                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                        September 13, 2006 Session

 IN RE: ESTATE OF W. GARNETT LADD, SR., W. GARNETT LADD, III,
                  ET AL. v. ROBERT C. MARKS

                       Appeal from the Chancery Court for Montgomery County
                              No. 95-P9-165   Michael R. Jones, Judge


                        No. M2005-02089-COA-R3-CV - Filed on April 30, 2007


The matters at issue pertain to the fee awarded a Co-Executor of an estate. The Co-Executor appeals
contending he was entitled to a contractual fee equal to five percent of the gross estate based on an
oral agreement with the ninety-four year old widow of the testator who served as his co-executor.
The Special Master and Chancellor made concurrent findings that the appellant had failed to properly
administer the estate. They also found that his claimed excuse, that he was acting according to the
wishes of his ninety-four year old Co-Executrix, did not relieve him of his affirmative fiduciary
duties as a personal representative. The Chancellor awarded him a fee of $25,000 for his services
as Co-Executor. We have concluded he is entitled to no fee for his services.

             Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                       Affirmed in Part, Modified in Part, Vacated in Part

FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and
PATRICIA J. COTTRELL, JJ., joined.

Neil M. McIntire, Nashville, Tennessee, for the appellant, Robert C. Marks.

F. Evans Harvill, Clarksville, Tennessee, for the appellees, W. Garnett Ladd, III and Gerda Ladd
Mayo.

                                                     OPINION

        W. Garnett Ladd, Sr., died testate on December 25, 1994 leaving a three million dollar estate
to be administered. He was survived by his ninety-four (94) year old wife, Gerda Ladd, one son,
Garnett Ladd, Jr., and two adult grandchildren, Garnett Ladd, III and Gerda Ladd Mayo. Mr. Ladd
bequeathed one-half of his estate outright to his wife with the rest and residue of his estate to a
family trust,1 of which his wife was the primary beneficiary for the remainder of her life, and his son,


        1
            Some specific bequests were included in the will, which comprised approximately one percent of the estate.
Garnett Ladd, Jr., and grandchildren, Garnett Ladd, III and Gerda Ladd Mayo, were the residual
beneficiaries.2

         The Last Will and Testament, which had been prepared in 1989 by attorney Robert C. Marks,
designated the testator’s wife, Mrs. Ladd, and Dempsey Marks3 as Co-Executors. Robert Marks was
designated as the Alternate Co-Executor in the event his father, Dempsey Marks, predeceased the
testator, which he did. As a consequence of Dempsey Marks’ death, Robert Marks was the next in
line to serve as Co-Executor with Mrs. Ladd.

       Robert Marks filed a Petition to Probate the 1989 will of Garnett Ladd, Sr. (the “testator”).
The Petition was granted, and on February 5, 1995, Letters Testamentary were issued to Mrs. Ladd
and Robert Marks (hereinafter “Marks”) to serve as Co-Executors.

       At the time the Letters Testamentary were issued, Mrs. Ladd was ninety-four (94) years of
age and was residing in a nursing home, where she had been for two years due to declining health
and the infirmities of age. As a consequence of her infirmities, which necessitated numerous trips
to the hospital for various health problems, Marks assumed the primary responsibility for
administering the estate. Marks also served as the attorney for the estate and assumed the
responsibility to prepare the estate tax return.

       The estate was principally comprised of approximately $2.28 million in stocks and bonds,
$515,000 of deposits in bank accounts, and $28,000 in real estate. Shortly after his appointment as
Co-Executor, Marks inventoried the safe deposit boxes, opened a bank account for the estate, and
attended to some of the preliminary tasks associated with the administration of the estate.

         Marks testified that he consulted with Mrs. Ladd prior to Marks filing the estate’s Form 706
Federal Estate Income Tax Return, which was filed on September 27, 1995, regarding the
compensation he would receive for serving as Co-Executor. He stated they orally agreed that he
would receive a fee for his services as a Co-Executor in an amount equal to five (5%) percent of the
three million dollar gross estate. There are, however, no letters or written agreements to evidence
the fee agreement. The only documentation concerning Marks’s fee is found in the cancelled checks
paid to Marks.4 The record reflects that Marks received $166,200 for his services to the estate.




         2
           The decedent’s son, Garnett Ladd, Jr., a residual beneficiary of the will and trust, predeceased his mother, Mrs.
Ladd, leaving only the testator’s grandchildren, Garnett Ladd, III and Gerda Ladd Mayo as the residual beneficiaries of
the trust.

         3
             Dempsey Marks was the father of Robert Marks, who drafted the will.

         4
        Prior to 1997, the fees were paid to the order of the law firm in which Marks was a partner, Marks, Shell,
Maness & Marks. Marks left the firm in 1997. All payments remitted thereafter were paid directly to Marks.

                                                            -2-
       In addition to the fee Marks received for his service as Co-Executor, Marks received a fee
of $17,000. Marks testified that this fee, which was paid by the estate, was compensation for legal
services he rendered to Mrs. Ladd as her personal attorney.

        Mrs. Ladd died during the administration of the estate, in September of 1998, almost four
years after the estate was opened by Marks. At the time of her death, Marks had not distributed the
bequest to Mrs. Ladd, and had not funded the trust which was to receive the rest and residue of the
estate. Only an insignificant portion of the estate had been distributed when Mrs. Ladd died.

        Three days after Mrs. Ladd’s death, the residual beneficiaries, Garnett Ladd, III and Gerda
Ladd Mayo (hereinafter collectively the “Plaintiffs”), filed a Petition in the Chancery Court seeking
an accounting by Marks. A consent decree was entered which required Marks to provide a complete
inventory and accounting of the estate.5 Ten days later, Marks provided an incomplete accounting.
Finding the accounting wholly inadequate, Plaintiffs filed numerous pleadings including, inter alia,
a Petition to require Marks to show cause why he should not be held in contempt for failure to
comply with the court’s decree, a Motion for Distribution, and a Motion to Distribute Trust Assets.

         After Marks’ repeated failures to provide a sufficient accounting, Plaintiffs commenced this
action with the filing of a Complaint and Devastavit. The Complaint was filed on May 17, 1999,
almost four and one-half years after Marks opened the estate. In the Complaint, Plaintiffs alleged
that Marks failed in his professional and fiduciary duty to appropriately administer the estate by: (1)
failing to properly marshal assets; (2) failing to cause assets to be made productive and to maximize
income during the period of administration; (3) failing to communicate with any beneficiary of the
estate, other than his co-executrix; and (4) failing to distribute and close the estate in a prompt
manner. For relief, Plaintiffs requested a complete and total accounting of all financial activities
undertaken by Marks, a judgment awarded against Marks for his malfeasance and nonfeasance in
his failure to properly perform the tasks of an executor, reimbursement of the fees Marks received
from the estate, and reimbursement for an insurance policy which Marks failed to properly process.
Marks filed an Answer to the Complaint in July, 1999, denying, inter alia, any negligence in the
administration of the estate and denying that his fees were excessive.

       In March of 2003, over eight years after the estate was opened, attorney Stennis Little was
appointed Special Master pursuant to Tenn. R. Civ. P. 53.6 Pursuant to the order, the Special Master


         5
           To be included in the accounting were a copy of the Federal Estate Tax return, the Tennessee Inheritance Tax
return, together with any other tax clearances from the State of Tennessee or the Internal Revenue Service, copies of the
Estate income tax return, and all other pertinent information regarding the execution of the estate.

         6
          Tenn. R. Civ. P. 53.04(1), which governs the role of a special master, provides:
         The master shall prepare a report upon the matters submitted to him by the order of reference and, if
         required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall
         file the report with the clerk of the court and, unless otherwise directed by the order of reference, shall
         file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall
         forthwith mail to all parties notice of the filing.

                                                            -3-
was to receive evidence and report to the Court his findings and conclusions with respect to the
following:

        There is pending in this Court a Complaint and Devastavit which was filed May
        17,1999, an accounting by Robert C. Marks, Executor under the Will of W. Garnett
        Ladd, Sr., which was filed on June 8, 1999, an exception to the accounting which was
        filed on June 25, 1999, and an Answer of Robert C. Marks to the Complaint and
        Devastavit which was filed on July 8, 1999. The Special Master will report in
        writing to this Court his findings and conclusions with respect to any issues raised
        by these pleadings and upon which the parties present evidence for the Special
        Master’s consideration.

         In November, 2003, the Special Master filed his Findings of Fact and Conclusions of Law.
One month later, the Special Master modified his Findings of Fact and Conclusions of Law. The
Special Master’s findings were highly critical of Marks’ services, or lack thereof, as an executor.
The Special Master made forty-three findings of fact, almost all of which were critical of Marks’ acts
and omissions. Specifically, the Special Master found that in the four years between his appointment
and the filing of the Complaint, Marks failed to distribute Mrs. Ladd’s share of the estate outright
and failed to fund the trust. Based on his findings of fact, the Special Master concluded that Marks
failed to carry out his fiduciary responsibilities as Co-Executor and that Marks “should receive zero
($0.00) dollars for his performance as Co-Executor and judgment should be issued for the return of
the executor’s fees.” The Special Master, however, recommended that Marks be awarded a fee “for
the initial gathering of all of the assets and the filing of all of the returns, both estate and income”
of $25,000.

       The Special Master also found that the fee Marks received for representation of Mrs. Ladd,
which was paid out of the estate account, was “excessive and undocumented,” and he recommended
a judgment in that amount be entered against Marks. Additionally, the Special Master found that
a $25,000 U.S. Treasury Bond listed in the inventory was unaccounted for, and unless Marks
accounted for the bond, he recommended Marks reimburse the estate for the loss.

        Marks filed Objections to the Master’s Findings of Fact and Conclusions of Law after which
Plaintiffs filed their Response. The Chancellor conducted a hearing following which he confirmed
the Special Master’s findings and all but one of his conclusions, that pertaining to the $25,000 fee
to be paid to Marks, which the Chancellor classified as an executor’s fee, not an attorney’s fee.

       The Chancellor also made additional findings that were not in conflict with the findings and
conclusions of the Special Master.7 One of the conclusions made by the Chancellor, a subject not
addressed by the Special Master, was that Mrs. Ladd’s ability to make an informed decision was
impaired when, in 1995, she allegedly orally agreed to pay Marks a fee of five (5%) percent for his


        7
          The Chancery Court confirmed the $25,000 award to M arks but held that it should be classified as an
executor’s fee, not an attorney’s fee, as implicitly suggested in the Special Master’s Report.

                                                     -4-
services as Co-Executor. The Chancellor’s finding was based on testimony from Mrs. Ladd’s health
care providers. Based on this finding, the Chancellor held that the fee agreement between Mrs. Ladd
and Marks was not a valid contract.

       An Order addressing the above matters was entered on April 14, 2004. Thereafter, the
Chancellor entered an Order awarding a final judgment against Marks in the amount of $213,558,
along with prejudgment thereon. This appeal followed.

        Marks contends the Chancellor erred by: (1) reducing the fee for services he rendered to the
estate to $25,000; (2) requiring he refund the $17,000 fee8 he was paid for services as Mrs. Ladd’s
personal attorney; (3) holding him responsible for the missing $25,000 Treasury Bond; (4) assessing
prejudgment interest against him; and (5) awarding the post-judgment interest retroactive to a date
prior to the entry of the final judgment.

                                           STANDARD OF REVIEW

        The court's order referring certain matters to the Special Master, the Special Master's report,
and the trial court's concurrence in the report affect our standard of review. Tenn. Code Ann. § 27-1-
113 (2006); Manis v. Manis, 49 S.W.3d 295, 301 (Tenn. Ct. App. 2001). Where there has been a
concurrent finding of the Special Master and Chancellor, this Court may not disturb the concurrent
findings. Tenn. Code Ann. § 27-1-113. A concurrent finding of a master and chancellor is
conclusive on appeal, except where it is upon an issue not proper to be referred, where it is based on
an error of law or a mixed question of fact and law, or where it is not supported by any material
evidence. Coates v. Thompson, 713 S.W.2d 83, 84 (Tenn. Ct. App. 1986). This standard of review
is similar to our standard when reviewing a jury verdict; we must affirm if there is any material
evidence to support the trial court's concurrence. See Id.; Tenn. R. App. P. 13(d). This heightened
standard of review only applies to findings that are made by both the Special Master and the
Chancery Court. See Manis, 49 S.W.3d at 301. Thus, the findings of fact made by the Chancery
Court but not by the Special Master are not subject to the aforementioned standard of review.

        When the findings of the Special Master and the trial court are not concurrent, the standard
of review of a trial court’s findings of fact is de novo, and we presume that the findings of fact are
correct unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d); Rawlings v.
John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn. Ct. App. 2001). For the evidence to
preponderate against a trial court’s finding of fact, it must support another finding of fact with greater
convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App. 1999).
 Issues of law are reviewed de novo with no presumption of correctness. Nelson v. Wal-Mart Stores,
Inc., 8 S.W.3d 625, 628 (Tenn. 1999).



        8
         The Special Master found the amount of the fee paid was $19,000, but the Chancellor found the amount paid
was $17,000.

                                                       -5-
                                    MARKS’ CO -EXECUTOR FEE

        Marks contends he is entitled to retain $166,200 paid for his services to the estate. We have
concluded that Marks breached his fiduciary duty to the estate by failing to competently and timely
render the services required of him as Co-Executor and, therefore, he is not entitled to a fee for his
service, or the lack thereof, to the estate.

        An executor of an estate occupies a fiduciary position. Mason v. Pearson, 668 S.W.2d 656,
663 (Tenn. Ct. App. 1984). As such, the executor must deal with the beneficiaries in utmost good
faith and “exercise the same degree of diligence and caution that reasonably prudent business
persons would employ in the management of their own affairs.” McFarlin v. McFarlin, 785 S.W.2d
367, 369-70 (Tenn. Ct. App. 1990) (citing In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct.
App. 1979); In re Estate of Cuneo, 475 S.W.2d 672, 676 (1971); 2 H. PHILLIPS & J. ROBINSON ,
PRITCHARD ON WILLS AND ADMINISTRATION OF ESTATES § 715 (4th ed. 1984)).

        In addition to general fiduciary duties requiring an executor to act with diligence and
prudence, an executor owes specific duties to the estate and the beneficiaries of the estate. Most
relevant to the present matter is the executor’s duty to “collect and disburse the assets as
expeditiously as possible under the circumstances. . . .” 2 JACK W. ROBINSON , SR. & JEFF MOBLEY ,
PRITCHARD ON WILLS AND ADMINISTRATION OF ESTATES § 737, at 333 (5th ed.1994) (hereinafter
“PRITCHARD ”) (emphasis added). The executor owes a duty to marshal and collect the assets of an
estate within a reasonable time; discharge his statutory duties and distribute the estate in a timely
manner; and close his administration as quickly as possible. Estate of Doyle v. Hunt, 60 S.W.3d 838,
844-45 (Tenn. Ct. App. 2001) (citing McFarlin, 785 S.W.2d at 370; Love v. First Nat'l Bank, 646
S.W.2d 163, 166 (Tenn. Ct. App. 1982); Campbell v. Miller, 562 S.W.2d 827, 832 (Tenn. Ct. App.
1977)). This duty arises because the law favors prompt administration of estates. See Burris v.
McConnell, 216 S.W.2d 10, 12 (1948). An executor also has a duty to communicate with
beneficiaries and the court in a professional manner. See Estate of Doyle, 60 S.W.3d at 846 (noting
an executor’s failure to communicate).

        Generally, courts are cautious not to hold executors liable upon slight grounds. See 2
PRITCHARD § 734, at 328. Rather, an executor who acts reasonably and in good faith while carrying
out his duties will be shielded from liability if his judgment simply turned out to be wrong in light
of subsequent events. Id. An executor who fails to competently, prudently, and reasonably discharge
his duties as required by law, however, finds no protection in his lack of judgment as viewed in
hindsight. Id. at 328-29; see also McFarlin, 785 S.W.2d at 372.

                                                   A.

        Marks contends he had an agreement with Mrs. Ladd, his Co-Executrix, which bound the
estate to pay a fee of five (5%) percent of the gross estate for his services to the estate. We find this
contention to be without merit.



                                                  -6-
        We find no authority to support Marks’ contention that the estate was bound by the alleged
fee agreement he entered into with his Co-Executrix, Mrs. Ladd. To the contrary, an executor who
enters into a fee agreement with another that pertains to the administration of the estate merely binds
the executor, not the estate. As we have learned from situations where an executor retains legal
counsel to assist in the administration of the estate, the executor, not the estate, is liable for the legal
fees incurred unless and until the court determines the services were required and the fee was
reasonable. Union Planters Nat. Bank v. Dedman, 86 S.W.3d 515, 521 (Tenn. Ct. App. 2001) (citing
In re Estate of Wallace, 829 S.W.2d 696, 703 (Tenn. Ct. App. 1992). If the fees can be shown to
have been required and to inure to the benefit of the entire estate and not to one or more of the
interested parties, the fees may be charged to the estate as an administrative expense. Id.

       The Chancellor found the fee agreement between Marks and Mrs. Ladd invalid due to her
diminished capacity. Nevertheless, assuming arguendo the agreement between Mrs. Ladd and
Marks was a valid contract, only Mrs. Ladd was bound by the terms of the agreement.9 Accordingly,
we find no basis to conclude that the alleged fee agreement Marks entered into with the Co-
Executrix bound the estate.10

         The timing of the fee agreement between Marks and his Co-Executrix raises questions of the
propriety of the agreement. Marks had been serving as Co-Executor for several months when he
claims to have entered into the fee agreement with his Co-Executrix, Mrs. Ladd. This is problematic
because an executor occupies a fiduciary position, and thus owes a fiduciary duty to the beneficiaries
of the estate. McFarlin, 785 S.W.2d at 369 (citing Mason, 668 S.W.2d at 663). As such, the
executor must deal with the beneficiaries in utmost good faith and “exercise the same degree of
diligence and caution that reasonably prudent business persons would employ in the management
of their own affairs.” Id. at 369-70 (citations omitted). The fact Marks entered into the fee agreement
while serving as Co-Executor, at a time he had a duty to act in the utmost good faith to the
beneficiaries subjects the fee agreement to the utmost scrutiny; however, we have already determined
the agreement is not binding against the estate. Therefore, it is not necessary that we scrutinize the
propriety of the fee agreement.




         9
          The Chancery Court found the fee agreement was invalid because Mrs. Ladd’s decision making ability was
impaired at the time of the formation of the contract with M arks.

         10
            W e also recognize that the fee arrangement Marks contends he entered into was with the then ninety-four year
old Mrs. Ladd, who was his personal client. Moreover, she was infirm, a resident of a nursing home, and the primary
beneficiary of the estate. An attorney enjoys a confidential relationship with his or her client which triggers judicial
scrutiny for fairness of a transaction wherein the client bestows a benefit on the attorney. Hager v. Fitzgerald, 934
S.W .2d 668, 671 (Tenn. Ct. App. 1996). W ith regard to transactions between an attorney and client, Tennessee courts
will “scrutinize most closely” all such transactions. Waller, Lansden, Dortch, & Davis v. Haney, 851 S.W .2d 131, 131
(Tenn. 1992). Furthermore, because of the fiduciary duties imposed “by virtue of their status as co-executors,
co-trustees, and directors, the court had the authority to closely scrutinize any transaction wherein the fiduciary decided
to hire himself.” In re Estate of Wakefield, No. M1998-00921-COA-R3-CV, 2001 W L 1566117, at * 17 (Tenn. Ct. App.
Dec. 10, 2001).

                                                           -7-
                                                           B.

       An executor is generally entitled to reasonable compensation for services and to payment for
reasonable expenses incurred in good faith for the benefit of the estate. In Re Estate of Wallace, 829
S.W.2d at 700-01; In Re Estate of Perlberg, 694 S.W.2d 304, 307 (Tenn. Ct. App. 1984); see Tenn.
Code Ann. § 30-2-606; see also See In re Estate of Wakefield, No. M1998-00921-COA-R3-CV,
2001 WL 1566117, at * 18 (Tenn. Ct. App. Dec. 10, 2001) (citing AUSTIN WAKEMAN SCOTT &
WILLIAM FRANKLIN FRATCHER, THE LAW OF TRUSTS § 242.9, at 305 (4th ed. 1988)). The
determination of the compensation is left to the discretion of the trial court. 2 PRITCHARD § 861, at
532.

       The real question concerning compensation of an executor is one of fair
       compensation for the time the representative was employed, the expenses he
       necessarily incurred, the services he rendered, the benefits he conferred, the
       responsibility he encountered, and the diligence, faithfulness, promptness, and
       capacity he displayed, in the performance of his duties: in a word, he is entitled to
       what he reasonably deserves under all the circumstances of the particular case.

2 PRITCHARD § 861, at 532. Such a determination “must be made in light of all the relevant
circumstances, including the extent of the executor's responsibilities, the nature of the services
rendered, the promptness and adequacy of the services, and the value of the benefits conferred.” In
re Estate of Wallace, 829 S.W.2d at 701; In re Estate of McSwain, No. M2001-02309-COA-R3-CV,
2002 WL 1763540, at *2 (Tenn. Ct. App. July 31, 2002); In Re Estate of Griffith, 452 S.W.2d 895,
902 (Tenn. Ct. App. 1969).

       The Special Master made forty-three findings of fact which were critical of Marks’ failed
attempts to administer the estate. The Chancellor confirmed the above findings. As a result, the
findings are concurrent and essentially engraved in stone pursuant to the heightened standard found
in Tenn. Code Ann. § 27-1-113. The following are some of the more relevant findings of fact:

       •           Under Item III of the will, the executors were to make a specific bequest of
                   Ladd Oil Company Stock to W. Garnett Ladd, Jr.11 The stock was not
                   distributed as of the date the Complaint was filed.
       •           Under Item IV of the will, the executors were to make a bequest of $1,000 to
                   Arvel Hunter. This bequest was not distributed as of the date the Complaint
                   was filed.
       •           Under Item V of the will, one-third of all of the Decedent’s checking and
                   savings accounts with the Sovran Bank/Clarksville were to be conveyed to
                   the trustees of the First Baptist Church, Clarksville, Tennessee. This bequest
                   had not been fulfilled as of the date the Complaint was filed.



       11
            Garnett Ladd, Jr., disclaimed the stock. Thus, the stock was to go to his children.

                                                           -8-
         •        Under Item VI of the will, one-third of all of the Decedent’s checking and
                  savings accounts with the Sovran Bank/Clarksville were to be conveyed to
                  the trustees of the Southern Baptist Seminary of Louisville, Kentucky. This
                  bequest had not been fulfilled as of the date the Complaint was filed.
         •        Under Item VII of the will, one-third of all of the Decedent’s checking and
                  savings accounts with the Sovran Bank/Clarksville were to be conveyed to
                  the Governing Board of Belmont College. This bequest had not been fulfilled
                  as of the date the Complaint was filed.
         •        The Sovran Bank/Clarksville Bank Account [number omitted] which was to
                  be divided and distributed to three charitable entities, was never retitled after
                  the probating of the Will into an estate account. The Defendant admits that
                  the interest rate on the account could have been higher if the transfer was
                  made. The disbursement was not made until May 21, 1999.
         •        Under Item VIII of the will, the sum of $15,000 was to be conveyed to
                  Garnett Ladd, III as trustee, to be held for the benefit of Geneva Guerin for
                  her lifetime. This bequest was not fulfilled as of the day the Complaint was
                  filed.
         •        Under Item X of the will, one-half of the gross estate (including life insurance
                  and jointly held property), less the value of specific bequests to Gerda Price
                  Ladd, was to go to Gerda Price Ladd, the deceased’s spouse, outright and free
                  of trust. No disbursement had been made as of the date of the Complaint.
         •        The Will further provides that all remaining assets in the estate were to be
                  placed in a Marital Trust for the benefit of Gerda Price Ladd for her lifetime
                  and upon her death, one-half would go to W. Garnett Ladd, Jr., or his issue
                  per stirpes and one-half would go to the Plaintiffs, share and share alike. The
                  Marital Trust was never established or funded.
         •        W. Garnett Ladd, Sr., at the time of his death, had numerous bank accounts
                  and/or money market accounts with seven different institutions. As of the
                  date the complaint was filed, accounts at four of the seven institutions
                  remained in W. Garnett Ladd, Sr.’s name and under his social security
                  number in accounts with low interest rates that at the time could have been
                  higher. (emphasis added)

        Based on his findings, the Special Master concluded that Marks should reimburse the estate
the entire fee he received for his services as Co-Executor, being $166,200.12 In pertinent part the
Special Master concluded

         there is clearly a gross failure on the part of the Defendant to communicate with the
         ultimate beneficiaries and others that have an interest in the estate, including the
         Court. The record does not state why he repeatedly ignored requests for documents,


         12
            The Special M aster, however, recommended that Marks be awarded $25,000 for “the initial gathering of all
of the assets and the filing of all of the returns, both estate and income.”

                                                        -9-
       refused to return telephone calls, and did not show up for scheduled meetings. He
       also did not communicate with the ultimate beneficiaries and the Court in a
       professional manner.

       Therefore, for the reasons cited in Issue I and for the reasons cited herein, it is the
       Special Master’s unequivocal conclusion, that the Defendant did not perform and he
       did not carry out his fiduciary obligations and responsibilities as a Co-executor in the
       estate of W. Garnett Ladd, Sr.

        “Faithful discharge of duty is necessary to demand rightfully any compensation. A dishonest
or negligent executor or administrator . . . will not, as a general rule, be allowed anything for his
services.” 2 PRITCHARD § 861, at 532 (emphasis added). An executor who has otherwise failed to
administer an estate in a competent manner may not only be denied compensation for his role as the
executor but may be required to personally pay for financial harm he has created, such as interest and
penalties incurred resulting from failure to timely file required documents. Id; see also McFarlin,
785 S.W.2d at 372.

       The Special Master concluded that Marks “should receive zero ($0.00) dollars for his
performance as Co-Executor and judgment should be issued for the return of the executor’s fees.”
The Special Master, however, recommended that Marks be awarded a fee of $25,000 “for the initial
gathering of all of the assets and the filing of all of the returns, both estate and income.”

       The Chancellor confirmed the Special Master’s findings but modified the recommendation
regarding the fee. As the Chancellor explained:

       Since Mr. Marks was a co-executor and also the attorney for the estate, this court
       believes that as executor he is entitled to reasonable compensation as executor only.
       The Special Master estimated an attorney fee of $25,000 for the valuable services
       rendered as an attorney. The court finds that a fee of $25,000 is reasonable based on
       the magnitude of the estate and the type of assets. The report of the Special Master
       is confirmed as to the amount of the fee, but that it shall be an executor’s fee not
       attorney fee.

        As previously explained, concurrent “findings of fact” by the Special Master and Chancellor
are conclusive on appeal. That is not the case, however, for matters that are considered mixed
questions of fact and law. Pearson v. Gillenwaters, 42 S.W. 9, 12 (Tenn. 1897); In re Estate of
Wallace, 829 S.W.2d at 700. Issues concerning the amount of compensation to be paid executors
and attorneys constitute mixed questions of fact and law and, therefore, they are not subject to the
heightened standard of review. See 2 PRITCHARD § 861, at 529-30 (citing In re Estate of Wallace,
829 S.W.2d at 700). As our Supreme Court held over a century ago:

       The concurrence of the Master and Chancellor as to the compensation due to an
       administrator for his services, and to an attorney for his fees, or a receiver or other


                                                -10-
       trustee for his services, is not such a concurrence on a question of fact as is embraced
       in the rule giving such concurrence the weight and effect of a finding by a jury. At
       most it is on the part of the Clerk and Master and the Chancellor but an expression
       of opinion or an estimate; and, while their estimates are entitled to weight because
       they are familiar with such fees and allowances as a rule, and with the services
       rendered in the particular case, still, their concurrence does not have the effect as
       contended, and the Court of Chancery Appeals was authorized to put its estimate
       upon the allowance independent of the Chancellor and Master, and likewise, this
       Court can review the estimate of the Court of Chancery Appeals, because it is not a
       fact found by that Court, but their judgment and estimate upon the facts and upon the
       record.

Pearson, 42 S.W. at 12. Three decades later, the Supreme Court further explained the reasoning
behind the rule by stating:

       [T]he question of the value of services rendered by an attorney, or receiver, or other
       trustee, when the facts have been set forth in proper detail as to the actual services
       rendered, is a matter purely of opinion and estimate, as to which the witnesses
       testifying, and the Master himself, can have no better basis for a fair opinion, if
       indeed so good, as the members of an Appellate Court, possessed normally of
       training and experience which peculiarly fits them to form and to review such an
       opinion.

Dale v. Hartman, 6 S.W.2d 319, 321 (Tenn. 1928).

       Accordingly the concurrent findings of fact which address the many deficiencies in Marks’
performance as Co-Executor are conclusive; however, the fee awarded by the Chancellor is not
conclusive and is subject to the more liberal standard set forth above.

        In light of all the relevant circumstances, including the extent of the executor's
responsibilities, the nature of the services rendered, which were both delinquent and inadequate, and
the value of the benefits conferred on the estate, which was insignificant, we have concluded that
Marks is not entitled to any compensation for his failed attempt to administer the Ladd estate. The
fact Marks conferred a short-term benefit to the estate by initially gathering assets and filing the
requisite tax documents is offset by the fact the net gain to the estate was for naught. This is because
Marks’ failure to administer the estate and to provide an accounting are the reasons for this litigation
and the expenses resulting therefrom.

       We also find Marks’ attempt to excuse his actions, or lack thereof, by casting the blame on
Mrs. Ladd, his ninety-four year old Co-Executrix, without merit for two reasons. One, his factual
contentions are not substantiated by the record. Two, a co-executor may be held liable for the acts
or omissions of his co-executor in which he concurs, acquiesces, or to which he assents. In re
Inman's Estate, 588 S.W.2d 763, 767 (Tenn. Ct. App. 1979).


                                                 -11-
         Over four years passed between Mr. Ladd’s death and the filing of the Complaint during
which time Marks accomplished little toward the administration of the estate, the assets remained
captive to Marks’ inattention to his duties, and the estate incurred considerable expense by bringing
this action to obtain a proper accounting by Marks.

       For all of the foregoing reasons, we have concluded that Marks is not entitled to a fee for the
various services he claims to have rendered for the estate.13

                     ATTORNEY FEES FOR REPRESENTING MRS. LADD INDIVIDUALLY

        During the time Marks was serving inadequately as Co-Executor of the estate, he additionally
rendered services for Mrs. Ladd as her personal attorney. For his service as her attorney, Marks
received payment of $17,000 in fees, which was paid out of the estate account. According to Marks,
the fees pertained to services he rendered while conferring with Mrs. Ladd regarding her individual
stocks and a possible gift to her daughter Gerda Mayo, and for visiting Mrs. Ladd in the hospital.

       Although the services were rendered for the sole benefit of Mrs. Ladd individually, not in her
capacity as Co-Executrix, the fee was paid to Marks out of the estate account in 1998 when Mrs.
Ladd was ninety-seven years old and suffering from a diminished mental capacity.14

       The Special Master found that Marks failed to keep any record or time sheets of the services
rendered for the individual benefit of Mrs. Ladd. As stated in the Report of the Special Master,
“[Marks] has offered no documentation from his files regarding what he discussed with Gerda Ladd
and whether he counseled her regarding legal issues.” The Chancellor confirmed the Special
Master’s findings, stating in the April 14, 2004 Opinion:

         This court can find nothing in the evidence to establish any work as an attorney for
         Mrs. Ladd individually. Mr. Marks did visit Mrs. Ladd, but it does not appear that
         he performed much, if any, work as an attorney. He certainly made no attempts to
         avoid inheritance tax on her estate. The report of the Special Master as to the
         attorney fee is confirmed. Mr. Marks shall pay the [$17,000]15 to the estate of Gerda
         Ladd.

         13
            M arks further contends the trial court erred in determining that he was responsible for returning all of the
executor’s fee paid despite only receiving twenty (20%) of that fee. W e find this argument without merit. This matter
is rightly between Marks and his former law firm.

         14
           Dr. James R. Smith, Mrs. Ladd’s physician, and Brenda Mansell, the care plan coordinator for Spring
Meadows Health Care Center, testified that during this time period, Mrs. Ladd’s mental capacity was significantly
diminished. Dr. James R. Smith testified that he noticed an appreciable change in Mrs. Ladd’s mental capacity as far
back as Christmas of 1994. Moreover, Dr. Smith testified that following her hospitalization in January, 1998, “I don’t
think she was well enough to handle physical or mental affairs after that time.” Ms. Mansell testified that Mrs. Ladd’s
condition was impaired as far back as 1996.

         15
              The initial order read “$19,000+/-” but was modified by a later order to read “$17,000.”

                                                          -12-
        Concurrent findings by the Special Master and Chancellor are conclusive upon us unless they
are not supported by any material evidence. Coates, 713 S.W.2d at 84. Accordingly, we must affirm
if there is any material evidence to support the trial court's concurrence. See Id. Having found
substantial and material evidence to support the concurrent findings that Marks failed to establish
any work as an attorney for Mrs. Ladd individually, we, therefore, affirm the judgment of the
Chancellor on this issue.

                               THE $25,000 U.S. TREASURY BOND

        The Chancery Court awarded the estate a judgment against Marks in the amount of $25,000,
plus prejudgment interest, due to Marks’ failure to account for a $25,000 bond owned by the testator
and his wife at the time of the testator’s death. Marks contends the court erred by holding him
personally liable for the unaccounted for $25,000 bond. We agree with Marks on this issue.

        The Special Master found that the $25,000 bond was never deposited in the estate account,
its whereabouts were unknown, and Marks had failed to account for it. Based on these findings, the
Special Master recommended that Marks be held liable for the unaccounted for bond. The
Chancellor affirmed the conclusion by stating, “The report of the Special Master as to the $25,000
asset that remains unaccounted for is confirmed.”

       The Chancellor confirmed the report of the Special Master and, therefore, the concurrent
findings of the Special Master and Chancellor are conclusively proven for purposes of this appeal.
The Chancellor, however, additionally found that the bond in the amount of $25,000 “came into Mr.
Marks’ hands.” The Special Master did not make a concurrent finding that the bond “came into Mr.
Marks’ hands.” Thus, this finding by the Chancellor is subject to the preponderance of the evidence
standard pursuant to Tenn. R. App. R. 13(d), and having examined the record, we find no evidence
to support a finding that the $25,000 bond at issue “came into Mr. Marks’ hands.”

        There is, however, a concurrent finding by the Special Master and Chancellor that is of great
significance, which is the bond Marks failed to account for was jointly owned by Mr. and Mrs. Ladd.
The finding is both conclusive and supported by the fact the bond was listed on Form 706 of the
Federal Estate Tax Return under schedule E, which is the schedule on which jointly owned property
is to be listed.
        This finding is significant to the issue at hand because property that is held jointly by a
husband and wife is presumed to be held as tenants by the entirety. See Smith v. Sovran Bank Cent.
South, 792 S.W.2d 928, 930 (Tenn. Ct. App. 1990); First Am. Nat. Bank v. Evans, 417 S.W.2d 778,
780-781 (Tenn. 1967); Edwards v. Edwards, 713 S.W.2d 642, 647 (Tenn. 1986). Grahl v. Davis,
971 S.W.2d 373, 378 (Tenn. 1998) (citing Sloan v. Jones, 241 S.W.2d 506, 507 (1951)). When one
spouse dies, “ownership of tenancy by the entirety property immediately vests in the survivor. . . .”
Grahl, 971 S.W.2d at 378. Both personal property and real property may be held in tenancy by the
entirety, and certificates of deposit and bank accounts may be held by tenancy by the entirety with
the right of survivorship. Id. (citing White v. Watson, 571 S.W.2d 493, 495 (Tenn. App. 1978); Smith


                                                -13-
v. Haire, 181 S.W. 161 (1915) (certificates of deposit); and Griffin, 632 S.W.2d at 532; Sloan, 241
S.W.2d at 506 (bank accounts)). It naturally follows that bonds may be held in the same manner.

        The right of survivorship attains further significance to the matter at issue because personal
property held by a husband and wife does not become part of the probate estate for purposes of
administration. Assets subject to the right of survivorship, such as the bond at issue, pass to the
surviving spouse by operation of law and do not become part of the probate assets in the hands of
the personal representative of the deceased spouse. 2 PRITCHARD § 645, at 171. Therefore, the
unaccounted for bond passed directly to Mrs. Ladd by right of survivorship and, thus, never became
an asset of the estate, and Marks had no duty to administer it as an asset of the probate estate.

        The foregoing notwithstanding, an executor may voluntarily undertake a duty to marshal an
asset that passed outside of probate; however, neither the Special Master or Chancellor found that
Marks assumed a duty with regard to the $25,000, and there is no evidence in the record that he did
so. The only evidence linking Marks to the bond is the fact the bond was listed on the deposit box
inventory, and the fact that Marks listed the bond as a taxable asset on Form 706 of the Federal
Estate Tax Return. Neither fact shows that he ever had possession of the bond. Moreover, reporting
the bond as a taxable asset of the estate does not require that Marks possess it nor does that fact
suggest that Marks assumed a duty to marshal or protect the bond.

        There being no evidence to support a finding the bond came into Marks’ hands and no
evidence that he assumed a duty to account for the bond as an asset of the estate, we therefore
conclude as a matter of law that Marks had no duty to protect or account for the $25,000 bond that
passed directly to Mrs. Ladd, by right of survivorship, outside of probate. In the absence of a duty,
there can be no breach of a duty and thus no liability.

       For these reasons, we must respectfully vacate the judgment against Marks in the amount of
$25,000 for the unaccounted for bond.

                                     PREJUDGMENT INTEREST

        On April 23, 2004, Plaintiffs filed a Motion for Prejudgment interest of the executor’s fee,
the attorney’s fee and the missing $25,000 U.S. Treasury Bond. The Chancellor heard the matter
and awarded prejudgment interest at the rate of 3.88% on the $166,200 executor’s fee, the $17,000
attorney’s fee, and the $25,000 bond, with interest to be computed from May 17, 1999, the date this
action was commenced.

        An award of prejudgment interest is within the sound discretion of the trial court. Spencer
v. A-1 Crane Service, Inc., 880 S.W.2d 938, 944 (Tenn. 1994); Otis v. Cambridge Mut. Fire Ins. Co.,
850 S.W.2d 439, 446 (Tenn. 1992). The trial court’s decision to award prejudgment interest will not
be disturbed on appeal unless the record reveals a manifest and palpable abuse of discretion. Id.
Generally stated, the abuse of discretion standard does not authorize an appellate court to merely
substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927


                                                -14-
(Tenn. 1998). Thus, in cases where the evidence supports the trial court's decision, no abuse of
discretion is found. Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978) (applying abuse
of discretion standard to trial court's decision to deny request for suspended sentence), cert. denied,
439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979)).

        We must defer considerably to the trial court's decision. Scholz v. S.B. Intern., Inc., 40
S.W.3d 78, 82 (Tenn. Ct. App. 2000) (citing Myint, 970 S.W.2d at 927). However, appellate
deference is not synonymous with rubber stamping a trial court's decision. Discretionary decisions
remain subject to appellate scrutiny, albeit less strict. Our review is confined to determining whether
the trial court has based its decision on applicable legal principles and whether the decision is
consistent with the evidence. Scholz, 40 S.W.3d at 82-83 (citing Myint, 970 S.W.2d at 927;
Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999)).

       Prejudgment interest, i.e., interest as an element of, or in the nature of, damages, as
       permitted by the statutory and common laws of the state as of April 1, 1979, may be
       awarded by courts or juries in accordance with the principles of equity at any rate not
       in excess of a maximum effective rate of ten percent (10%) per annum; provided, that
       with respect to contracts subject to § 47- 14-103, the maximum effective rates of
       prejudgment interest so awarded shall be the same as set by that section for the
       particular category of transaction involved. In addition, contracts may expressly
       provide for the imposition of the same or a different rate of interest to be paid after
       breach or default within the limits set by § 47-14-103.

Tenn. Code Ann. § 47-14-123 (2006). The principle of equity is the foremost guiding consideration
for a trial court when exercising its discretion to award or deny prejudgment interest. Myint, 970
S.W.2d at 927; Tenn. Code Ann. § 47-14-123. Basically, “the court must decide whether the award
of prejudgment interest is fair, given the particular circumstances of the case.” Myint, 970 S.W.2d
at 927. “In reaching an equitable decision, a court must keep in mind that the purpose of awarding
the interest is to fully compensate a plaintiff for the loss of the use of funds to which he or she was
legally entitled, not to penalize a defendant for wrongdoing.” Id. (citations omitted)

       In the not-so-distant past, opinions dealing with prejudgment interest left a distinct
impression of subtle judicial antipathy toward awarding prejudgment interest unless it was statutorily
mandated. Scholz, 40 S.W.3d at 81. The decision in Myint, however, heralded a departure from the
former approach and “requires a re-examination of the factual and legal bases used by the courts to
determine whether prejudgment interest should be awarded.” Scholz, 40 S.W.3d at 81.

       Parties who have been wrongfully deprived of money have been damaged in two
       ways. First, they have been damaged because they have not received the money to
       which they are entitled. Second, they have been damaged because they have been
       deprived of the use of that money from the time they should have received it until the
       date of judgment. Awards of pre-judgment interest are intended to address the second
       type of damage. They are based on the recognition that a party is damaged by being


                                                 -15-
       forced to forego the use of its money over time. Thus, our courts have repeatedly
       recognized that prejudgment interest is awarded, not to punish the wrong-doer, but
       to compensate the wronged party for the loss of the use of the money it should have
       received earlier.

Scholz, 40 S.W.3d at 82 (internal citations omitted).

         Historically, the two most common reasons for denying prejudgment interest were: one, the
“uncertainty of either the existence or amount of an obligation;” and, two, cases wherein the claim
is reasonably disputed. Myint, 970 S.W.2d at 927-28, n. 7. The decision in Myint has supplanted the
formerly rigid rules with more flexible guidelines. Scholz, 40 S.W.3d at 83. In place of the rigid
criteria, the Myint Court articulated the following standard:

       Simply stated, the court must decide whether the award of pre-judgment interest is
       fair, given the particular circumstances of the case. In reaching an equitable decision,
       a court must keep in mind that the purpose of awarding the interest is to fully
       compensate a plaintiff for the loss of the use of funds to which he or she was legally
       entitled, not to penalize the defendant for wrongdoing.

Myint, 970 S.W.2d at 927. As a consequence of the Myint decision, the Court shifted the balance
to favoring prejudgment interest “whenever doing so will more fully compensate plaintiffs for the
loss of use of their funds.” Scholz, 40 S.W.3d at 83.

       Fairness will, in almost all cases, require that a successful plaintiff be fully
       compensated by the defendant for all losses caused by the defendant, including the
       loss of use of money the plaintiff should have received. That is not to say that trial
       courts must grant prejudgment interest in absolutely every case. Prejudgment interest
       may at times be inappropriate such as (1) when the party seeking prejudgment
       interest has been so inexcusably dilatory in pursuing a claim that consideration of a
       claim based on loss of use of the money would have little weight; (2) when the party
       seeking prejudgment interest has unreasonably delayed the proceedings after suit was
       filed; or (3) when the party seeking prejudgment interest has already been otherwise
       compensated for the lost time value of its money.

Scholz, 40 S.W.3d at 83 (internal citations omitted).

        Here, we can identify six considerations that are consistent with the equitable considerations
used to justify an award of prejudgment interest in Scholz. Id. at 84. One, as the Chancellor stated,
Plaintiffs “did not have use of the money” to which they were entitled during the time that it was in
Marks’ possession. Two, Plaintiffs did not delay unreasonably seeking an accounting. Three, they
have not delayed the proceedings. Four, Marks received unwarranted fees. Five, Plaintiffs were
deprived of the use of the funds to which they were entitled as a direct result of Marks’ errors and
omissions. Six, the amount in controversy was reasonably ascertainable.


                                                -16-
        Finding no abuse of discretion with regard to the award of prejudgment interest as it pertains
to the award at the rate of 3.88% on the $166,200 executor’s fee and the $17,000 attorney’s fee, with
interest to be computed from May 17, 1999, the date this action was commenced, we affirm.

      Because we vacated the award of pre-judgment on the $25,000 bond, it is necessary that we
remand for calculation of prejudgment interest on the executor’s fee and the attorney’s fee.

                                    POST JUDGMENT INTEREST

       As his final issue, Marks challenges the retroactive award of post judgment interest. He does
not challenge the award of post judgment interest, only the retroactive application of the award.

        In the final judgment, which was entered on July 29, 2005, the trial court awarded Plaintiff
post judgment interest retroactive to the date of the trial, April 14, 2004, which was completed some
fifteen months prior to the entry of the final judgment. Accordingly, the issue to be determined is
the date from which post judgment interest accrues. We have determined that date is the date the
judgment was entered, which was July 29, 2005.

        The relevant statute provides, “Interest shall be computed on every judgment from the day
on which the jury or the court, sitting without a jury, returned the verdict without regard to a motion
for a new trial.” Tenn. Code Ann. § 47-14-122 (2006). Although the relevant provision, “from the
day on which . . . the court, sitting without a jury, returned the verdict” is subject to more than one
interpretation, we have previously construed the statute in a non-jury trial to mean “post-judgment
interest shall run from the date of the entry of the court's judgment.”Varnadoe v. McGhee, 149
S.W.3d 644, 649 (Tenn. Ct. App. 2004) (dissenting opinion by Crawford); see State v. Thompson,
197 S.W.3d 685, 693 (Tenn. 2006).

        The final judgment in this matter was entered on July 29, 2005. Therefore, the post-judgment
interest should be calculated from July 29, 2005. On remand, post judgment interest on the $25,000
bond should be subtracted from any further calculations.

                                          IN CONCLUSION

         We vacate the award of any fee to Marks for his services to the estate. We additionally
vacate the judgment rendered against Marks for failing to account for the $25,000 bond. Further,
we modify the effective date of the award of post judgment interest by making it effective as of the
date the final judgment was entered and for which interest shall accrue thereafter. The judgment of
the trial court is affirmed in all other respects.




                                                 -17-
       This matter is remanded to the trial court for the entry of a judgment consistent with this
opinion and for such further proceedings as may be necessary. Costs of appeal are assessed against
Robert C. Marks.



                                                     ___________________________________
                                                     FRANK G. CLEMENT, JR., JUDGE




                                              -18-
