                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                     January 6, 2004 Session

                    WILL A. CANTRELL v. ALLEN CANTRELL

                       Appeal from the Chancery Court for Giles County
                             No. 2045    Jim T. Hamilton, Judge



                   No. M2002-02883-COA-R3-CV - Filed December 30, 2004


After the death of his estranged wife, the surviving husband discovered that she had secretly placed
their marital residence into a revocable trust the assets of which, on her death, passed to the benefit
of their son. The husband brought suit to have the transfer to the trust declared a fraudulent
conveyance and to impose a resulting trust on the property for his benefit. The trial court granted
him the relief he requested. While we agree with the trial court that the wife could not convey away
the husband’s interest in the farm, our reasoning and ultimate result differ from that of the trial court.
We affirm the resulting trust, but reverse the voiding of the conveyance of the wife’s half interest.

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

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., and WILLIAM B CAIN , J., joined.

Jon L. Setzer, Nashville, Tennessee, for the appellant, Allen Cantrell.

Clark Anthony Edwards, Columbia, Tennessee; Robert D. Massey; Rogers N. Hays, Pulaski,
Tennessee, for the appellee, Will A. Cantrell.

                                               OPINION

         Will A. Cantrell and Margaret Henderson Cantrell were married on April 17, 1970. It was
the first marriage for the wife, the third for the husband. The husband had three children from his
earlier marriages. This marriage produced one child, Allen Cantrell, the defendant in this case, who
was born on February 1, 1972.

       The husband and wife both worked during their marriage. Margaret Cantrell was a
schoolteacher with the Alabama public schools. Will Cantrell held a number of different jobs. In
1979, he retired with a medical disability from NASA in Huntsville. During the early years of their
marriage, the couple shared the financial benefits and burdens equally, paying their bills from a joint
checking account into which they each put their earnings.

        In 1971, the Cantrells purchased the farm on which Ms. Cantrell had grown up (her parents
had rented the farm from relatives). The seller was Ms. Cantrell’s aunt, Trannie Gobble. The
purchase price was $40,000, which the parties have agreed was the fair market value of the property.
The down payment of $1,000 and the installment payments to Ms. Gobble came from marital funds
in the joint checking account. The two hundred one (201) acre farm was deeded only to Margaret
Cantrell.

        When the parties decided to build a house on their property in 1977, Will Cantrell went to
the bank for a construction loan and learned for the first time that his name was not on the deed. The
parties then had a “serious discussion” during which the husband asked his wife to add his name to
the document, and she promised to take care of it. However, this was never done. The construction
loan was written in the names of both Cantrells and was repaid through their joint checking account.
Insurance and taxes were likewise paid from joint funds.

        When Mr. Cantrell still had a job at NASA, he worked on the farm at night and on weekends.
He testified that the land was extremely rocky and that he had to haul over 144 dump truck loads full
of rocks, in order to be able to sow 75 or 80 acres for hay or grazing. After he retired, he continued
to work the farm. The husband and wife shared the costs for feed and other expenses and shared the
proceeds from the sale of cattle.

        But this apparent harmony did not last. In the early 1990s, Will Cantrell became upset
because he felt his wife was spending too much money on her extended family - chiefly her mother,
father and sister. He was also aware that Margaret Cantrell did not approve of the amount of money
he was spending on his children from his earlier marriages.

        He therefore did not inform his wife when he inherited a one-third interest in a 100 acre farm
that had been owned by his parents. He put cash from the same inheritance into a $17,000
Certificate of Deposit in his own name. In 1993, he opened a separate checking account for his own
use. The husband and wife both remained in the marital home, but their marital relationship was
replaced by a “profound separation.” They lived essentially separate lives and maintained their
separate finances. However, they continued to share in the proceeds from the farm (including rental
income), and they both contributed to the payment of property taxes.

       In January of 2000, Margaret Cantrell discovered she had cancer. She decided that she
wanted all of her property to go to her son after she died, and that nothing should go to her estranged
husband. On March 1, 2000, Allen Cantrell took his mother to an attorney in Nashville, where she
executed three documents to accomplish these purposes.

       The Margaret H. Cantrell Revocable Living Trust Agreement conveyed to the trust all of Ms.
Cantrell’s property “wherever situated, whether personal or real, tangible or intangible, separate or


                                                 -2-
community, and whether now owned or hereafter acquired. . . .” The document named Margaret
Cantrell as both the trustor and the trustee. Allen Cantrell was named successor trustee in the event
of her death.

       The trust document further stated that “[i]t is the Trustor’s intention that no distribution be
made to her husband, William A. Cantrell, or any of his issue (with the exception of Allen Lewis
Cantrell). Further, it is the Trustor’s intention that no distribution be made to any descendants of her
husband, even in the event that all of the Trustor’s beneficiaries have predeceased the Trustor.” Ms.
Cantrell also executed a quitclaim deed, in which she surrendered to the trust all her interest in the
201 acre farm.

        A Last Will and Testament executed at the same time includes a caption which describes it
as a “‘Pour-Over’” Will.” It names Allen Cantrell as the executor of her estate, to serve without
bond. The will directs that after payment of her just debts, the remainder of Ms. Cantrell’s estate is
to be given to the acting trustee of the living trust. Allen Cantrell was also the sole named
beneficiary of his mother’s teacher’s retirement account, as well as of a variable annuity she owned.

       Margaret Cantrell died on February 25, 2001. After his mother’s death, Allen Cantrell, as
successor trustee of the Margaret H. Cantrell Revocable Living Trust, conveyed the farm to himself
individually. In a subsequent conveyance, he transferred it to a new entity, the Allen Lewis Cantrell
Revocable Living Trust.

                                      I. PROCEEDINGS BELOW

       Will Cantrell did not discover that his wife had engaged in these transactions until after her
death. Eight months after her death, he filed a Complaint in the Chancery Court of Giles County,
naming Allen Cantrell as defendant, both individually and in his capacity as Trustee of the Margaret
H. Cantrell Revocable Living Trust. Will Cantrell asked the court to void his deceased wife’s
conveyance of the farm to the trust, under Tenn. Code Ann. § 31-1-105, as a fraudulent conveyance
designed to defeat his rights.

       Mr. Cantrell had earlier filed a Petition in the Probate Court of Giles County to be appointed
administrator of his wife’s estate. In that Petition, he declared his intention to dissent from his late
wife’s will, and to take his elective share under the law. He also filed a claim against her estate for
“advancements” in the amount of $300,000. The Probate Court decided to hold its decision in
abeyance pending the final outcome of the case in Chancery Court.

         The Chancery Court conducted a hearing on Will Cantrell’s Complaint on September 4,
2002. Both parties testified at length. The plaintiff also called three long-time neighbors, who
testified briefly as to the plaintiff’s honesty and the hard work they had observed him performing on
the farm.




                                                  -3-
        Allen Cantrell attempted to introduce into evidence a witnessed and notarized note, signed
by Trannie Gobble. Ms. Gobble had died in July of 2001. Will Cantrell objected to consideration
of the note under the Dead Man’s Statute. The trial court sustained the objection, but allowed Allen
Cantrell to make an offer of proof by having him read the note into the record.

        In the note, Ms. Gobble declared that she had agreed to sell the farm only if it could be
deeded entirely to her niece, Margaret Cantrell. She stated that she had reservations about putting
Will Cantrell’s name on the deed because of his previous marriages and his other children and that
it was her intention, as well as her niece’s, that the farm should pass down exclusively to her lineage
if Margaret should predecease her husband.

        At the conclusion of the hearing, the court took the matter under advisement. The court’s
subsequent Order, filed on September 25, 2002, decided the most significant issues in Will Cantrell’s
favor. The court specifically found that the transactions by Margaret Cantrell, with the assistance
of her son, “were done secretively and with the sole intent to deprive William Cantrell of his interest
in said property” and also that the conveyance of the house and farm was made fraudulently “with
the intent to defeat William A. Cantrell, her surviving spouse, of his distributive or elective share,”
and that “the conveyance was illusory.”

        The court accordingly declared the conveyance of the farm to be void, imposed a resulting
trust on the property, and awarded a one-half undivided interest in it to Will Cantrell. The court also
found that there was insufficient evidence to show that the change of beneficiaries to the retirement
and annuity funds was a fraudulent transfer under Tenn. Code Ann. § 31-1-105. Allen Cantrell
appealed.

                                       II. ISSUES ON APPEAL

        It is important to distinguish the different interests Will Cantrell may have in the property
transferred, or attempted to be transferred, to the trust. First, as a surviving spouse, he has a right
to an elective share of his wife’s separate property. Tenn. Code Ann. § 31-4-101. The farm was
included in the property transferred to the trust, and that transfer was voided by the trial court, with
the result that the entire farm was placed in Margaret Cantrell’s estate.

         However, Will Cantrell also claims an equitable ownership interest in the farm such that the
farm would not be considered Margaret Cantrell ’s separate property. In recognition of this interest,
the trial court imposed a resulting trust on the farm of a one-half undivided interest for the benefit
of Will Cantrell. Allen Cantrell characterizes the result of these two holdings as allowing “double
dipping” by Will Cantrell and an unconscionable disregard for the testator’s wishes.

         We believe it is important to analyze the separate interests Will Cantrell may have in the
farm, which is apparently the only significant asset of the estate. In fact, this record tells us little
about any other assets except the annuities or retirement accounts, and Will Cantrell has not appealed
the trial court’s ruling as to those assets.


                                                  -4-
                           III. THE FARM AND THE RESULTING TRUST

        Even though the farm was titled in the wife’s name alone, the trial court concluded that Will
Cantrell retained an equitable interest in the property which his wife was not entitled to convey away.
The court accordingly imposed a resulting trust in favor of Will Cantrell on a one-half undivided
interest in the farm.

        A resulting trust is an equitable remedy to be used to satisfy the demands of justice. Burleson
v. McCrary, 753 S.W.2d 349, 352 (Tenn. 1988). This court has described resulting trusts as
“judge-created trusts or doctrines which enable a court, without violating all rules of logic, to reach
an interest in property belonging to one person yet titled in and held by another." Wells v. Wells, 556
S.W.2d 769, 771 (Tenn. Ct. App.1977).

        Its purposes include preventing unjust enrichment and protecting an individual’s equitable
right to property when the legal title to that property is in the name of another. In re Estate of
Nichols, 856 S.W.2d 397, 401 (Tenn. 1993).

       Such a trust is implied by law from the acts and conduct of the parties and the facts
       and circumstances which at the time exist and surround the transaction out of which
       it arises. Broadly speaking, a resulting trust arises from the nature or circumstances
       of consideration involved in a transaction whereby one person becomes invested with
       a legal title but is obligated in equity to hold his legal title for the benefit of another,
       the intention of the former to hold in trust for the latter being implied or presumed
       as a matter of law, although no intention to create or hold in trust has been
       manifested, expressly or by inference, and there ordinarily being no fraud or
       constructive fraud involved.

In re Estate of Nichols, 856 S.W.2d at 401 (quoting 76 AM .JUR.2d Trusts § 166, pp. 197-98 (1992)).

        Depending on the circumstances presented, a court will decree a resulting trust to prevent a
failure of justice. Id. “These trusts are sometimes called presumptive trusts, because the law
presumes them to be intended by the parties from the nature and character of their transactions. They
are, however, generally called resulting trusts, because the trust is the result which Equity attaches
to the particular transaction.” Roach v. Renfro, 989 S.W.2d 335, 340 (Tenn. Ct. App. 1998) (quoting
Gibson's Suits in Chancery, § 382 (Inman, 6th Ed. 1982)); see also Smalling v. Terrell, 943 S.W.2d
397, 400 (Tenn. Ct. App. 1996).

        Although resulting trusts, by their nature, are normally established by parol evidence, see
Smalling, 943 S.W.2d at 400, a high standard of proof must be met in order to impose a resulting
trust. Saddler v. Saddler, 59 S.W.3d 96, 99 (Tenn. Ct. App. 2000); In re Estate of Roark, 829
S.W.2d 688, 692 (Tenn. Ct. App.1991). One reason is that too liberal an application of the equitable
remedy would tend to generally undermine the value of legal title. Our Supreme Court has noted
that the creation of a resulting trust is not a means to avoid the law of inheritance or of joint


                                                   -5-
tenancies. In Re Estate of Nichols, 856 S.W.2d at 402. Only under compelling circumstances may
a court impose a resulting trust in contravention of the legal effect of the documents themselves. Id.

        While an implied or resulting trust may be established by parol evidence, yet both
        upon reason and authority the courts will not enforce it, unless it be established by
        the most convincing and irrefragable evidence. In other words, it must be sustained
        by proof of the clearest and most convincing character. To sustain a resulting trust
        upon parol evidence in the teeth of the terms of the written instrument, it is not
        essential that the evidence be of a character to remove all reasonable doubt, but only
        that it be so clear, cogent and convincing as to overcome the opposing evidence,
        coupled with the presumption that obtains in favor of the written instrument.

In Re Estate of Nichols, 856 S.W.2d at 402, quoting Estate of Wardell ex rel. Wardell v. Dailey, 674
S.W.2d 293,295 (Tenn. Ct. App. 1983), quoting Savage v. Savage, 4 Tenn. App. 277, 285 (1927);
Roach, 989 S.W.2d at 341.

                                 IV. TENN . CODE ANN . § 31-1-105

        A fundamental principle of the law of wills is that a testator is entitled to dispose of the
testator’s property as he or she sees fit, regardless of any perceived injustice that may result from
such a choice. In re Estate of Eden, 99 S.W.3d 82, 92 (Tenn. Ct. App. 1995). Husbands and wives
are likewise generally entitled to individually dispose of their separate property during their lifetimes
by sale or by inter vivos gift. Sherrill v. Mallicote, 417 S.W.2d 798, 804 (Tenn. Ct. App. 1967). An
important exception to the principles of testamentary freedom and free alienability of property,
however, is that a testator is not entitled to completely disinherit his or her surviving spouse. Andra
J. Hedrick, Note, Protections Against Spousal Disinheritance: A Critical Analysis of Tennessee’s
New Forced Share System, 28 U. MEM . L. REV . 561 (1998).

        The common law recognized that a surviving spouse retains rights to a portion of a deceased
spouse’s property, even in the face of a will or of another instrument that purports to convey away
that property. Under the names of dower (for a wife’s rights) and curtesy (for a husband’s), those
rights have been part of the law of Tennessee from its very beginning. See Warren v. Compton, 626
S.W.2d 12, 15-16 (Tenn. Ct. App. 1981).

        The scope of those traditional rights and the terminology used to describe them have been
altered to reflect modern concepts of matrimonial and gender equality and are generally governed
by statute. They are now referred to as the surviving spouse’s elective or distributive share. In the
most current version of the elective share statute, Tenn. Code Ann. § 31-4-101, the share of the
decedent spouse’s separate property that goes to a surviving spouse who elects against a decedent
spouse’s will increases with the duration of the marriage. In a marriage of nine or more years (like
the one at issue in this case), the surviving spouse’s share would amount to 40% of the net estate.
Tenn Code Ann. §31-4-101(a)(1).



                                                  -6-
        Tenn. Code Ann. § 31-1-105 was specifically designed to protect a surviving spouse’s
interest in the property of the deceased spouse. It reads as follows:

         Any conveyance made fraudulently to children or others, with an intent to defeat the
         surviving spouse of the surviving's spouse distributive or elective share, is, at the
         election of the surviving spouse, includable in the decedent's net estate under §
         31-4-101(b), and voidable to the extent the other assets in the decedent's net estate
         are insufficient to fund and pay the elective share amount payable to the surviving
         spouse under § 31-4-101(c).1

         This court has had several opportunities to apply Tenn. Code Ann. § 31-1-105. Although
“(i)n cases of this type there can be no fixed rule of determining when a transfer or gift is fraudulent”
and each case must be determined on its own facts and circumstances, Sherrill, 417 S.W.2d at 802,
the courts have articulated factors for trial courts to consider when determining whether a
conveyance should be considered to have been fraudulently made to defeat the elective share of the
surviving spouse. Those factors are: 1) whether the transfer was made without consideration; 2) the
size of the transfer in relation to the total assets of the donor-spouse; 3) the time between the transfer
and the death of the donor-spouse; 4) the relation which existed between the husband and wife 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 will. Finley v.
Finley, 726 S.W.2d 923, 924 (Tenn. Ct. App. 1986); Warren, 626 S.W.2d at 17; Sherrill, 417
S.W.2d at 802. In determining whether the conveyance was fraudulently made with an intent to
defeat the spouse’s interest, “the Court should not mechanically list the factors favorable to one party
and those favorable to another and add up the total and base his judgment upon that alone, but
instead, should consider the weight and significance to be given to each factor under the facts of each
particular case.” Finley, 726 S.W.2d at 925-926.

        In the Warren case, supra, this court applied the factors and found that a $40,000 gift that
Oliver Warren, the deceased husband, had made to his girlfriend, Opalyne Compton, shortly before
he died was not a fraudulent conveyance. We reasoned that Mr. Warren’s donative intent was
justified by the long relationship between Mr. Warren and Ms. Compton, and the care and attention
she gave him during the difficult months of his last illness.

        We observed that “a strained marriage relationship is a sword which cuts both ways.” That
is, the existence of such strains under factor (4) above could be used as proof of a testator’s
motivation to fraudulently defeat a spouse’s rights. But, on the other side of the equation, “[t]he
surviving spouse could have been so inconsiderate, cold, and self-centered as to justify a transfer of

         1
           At the time of Margaret Cantrell’s death, the statute’s wording was different; an amendment in 2002 substituted
“at the election of the surviving spouse, includable in the decedent’s net estate under § 31-4-101(b), and voidable to the
extent the other assets in the decedent’s estate are insufficient to fund and pay the elective share amount payable to the
surviving spouse under § 31-4-101(c)” for “is voidable at the election of the surviving spouse.” Neither party has pointed
out the difference in the two versions of the statute nor indicated that the difference has any consequence to the issues
in this appeal.

                                                           -7-
property by the other spouse to those in whom he found solace, comfort, and care.” 626 S.W.2d at
18.

        In the case before us, the trial court voided Margaret Cantrell’s conveyance of the farm in its
entirety, finding it a fraudulent transfer designed to deprive Will Cantrell of his elective share.

                                                    V. ANALYSIS

        While we do not disagree with most of the trial court’s findings of fact, we cannot agree that
the result reached by the court is necessitated by those findings. Although the court found that the
transfer of the farm was made with the intent to defeat the interest of William H. Cantrell, it is not
clear whether the court meant Will Cantrell’s equitable ownership interest in the farm, his surviving
spouse’s share of his wife’s separate property, or both.

        We think the real problem here is that Margaret Cantrell attempted to convey away not only
her property, but also Will Cantrell’s interest in that property. We do not disagree that one of her
primary purposes in transferring the property to the trust was to deprive Mr. Will Cantrell of any
interest in the farm, but we think that her attempt was directed primarily at any claim he might have
to being joint owner of the farm.

        The trial court found that Will Cantrell contributed in excess of 50% to the marital funds with
which the farm was purchased and that Margaret Cantrell treated the farm as being owned equally
by herself and her husband. There can be no doubt that the husband and wife both made significant
contributions to the acquisition and improvement of the property upon which they resided. The land
itself was purchased for fair market value and was paid for out of marital funds. Repayment of the
construction loan for the house likewise came from the income generated by both husband and wife.
Additionally, Mr. Cantrell contributed many hours of back-breaking labor to improve the land by
removing rocks from the soil.2 Even though they lived essentially separate lives for the last seven
to ten years of their marriage, they continued to reside together in the marital home. Even though
they maintained separate finances during that time, they shared the proceeds and expenses of the
farm equally. These facts indicate an intent, or recognition, that the farm and the house belonged
to both of them equally.

       Like the trial court, we find the record includes proof of the clearest and most convincing
character of Mr. Cantrell’s contributions to the acquisition and improvement of the disputed
property, as well as of the numerous ways the husband and wife consistently treated the property as



         2
          There is no doubt that the property in question would meet the definition of marital property subject to
equitable distribution found in the divorce statute, which includes: “all real and personal property, both tangible and
intangible, acquired by either or both spouses during the course of the marriage,” and “any increase in value during the
marriage of, property determined to be separate property in accordance with subdivision (b)(2) if each party substantially
contributed to its preservation and appreciation.” Tenn. Code Ann. § 36-4-121(b)(1).

                                                           -8-
jointly-owned.3 We must therefore conclude that the trial court was correct to impose a resulting
trust on one-half of that property for Mr. Will Cantrell’s benefit.4

        Thus, although Margaret Cantrell attempted to convey the farm and house to the trust, such
conveyance would not have been effective as to Will Cantrell’s interest in that property. Simply
stated, you cannot convey what you do not own. Briggs v. Estate of Briggs, 950 S.W.2d 710, 713
fn.2 (Tenn. Ct. App. 1997); Lebovitz v. Porter, 252 S.W.2d 144, 147 (Tenn. Ct. App. 1952). More
accurately, in the case before us, the conveyance was subject to the husband’s equitable interest. The
trial court’s imposition of a resulting trust for one-half interest effectively accomplished formal
recognition of the consequence of that legal principle. Will Cantrell is entitled, upon request, to
reformation of the deed to accurately reflect his one-half interest in the real property.

        The trial court’s imposition of a resulting trust as to one-half the property means that the
other half was owned by Margaret Cantrell. We agree with this conclusion. Consequently, the
factors relevant to a determination under Tenn. Code Ann. § 31-1-105 must be applied to Margaret
Cantrell’s transfer of her one-half interest in the farm.

        Although there are some factual differences, there are some striking similarities between the
case before us and Warren v. Compton, discussed above. In particular, both testators had made the
challenged conveyances shortly after learning that they were suffering from life-threatening illnesses,
and in both cases the marital relationship between the parties had been functionally over for quite
some time.

        Like Mrs. Warren, who did not even visit her husband during his month-long stay in the
hospital, Mr. Cantrell was neither solicitous nor supportive of his wife during her last illness and
showed little concern. He testified that he did not know what kind of cancer she was suffering from,
did not know the name of any of her doctors, and did not know anything about her chemotherapy
treatments. In answer to the question whether he had ever spent a night at the hospital when she was
suffering, he said “I think I stayed a night or two,” but he also said “I didn’t even know when it was
she was in the hospital.”

        Margaret Cantrell looked to her son for comfort and care, not only during her last illness, but
also during the last ten years of her life. While Mr. Cantrell worked on the land, his wife worked
full time as a schoolteacher, did all the household chores and cooked for her family. As he was


         3
             Mr. W ill Cantrell has not argued that the property was owned as tenants by the entireties.

         4
          On appeal, Allen Cantrell argues that the trial court improperly excluded the written statement of the seller of
the farm. W e do not think the seller’s intent has any bearing on our decision on whether a resulting trust should have
been imposed. The farm was purchased with joint money, the house was financed with the proceeds from a loan for
which the parties were jointly obligated, and the parties’ conduct showed a recognition of joint ownership. Consequently,
whether Ms. Gobble’s statement was improperly excluded from evidence or not, the trial court allowed a proffer, we have
reviewed the statement, and find its admission would not have affected the outcome of the case. See Tenn. R. App. P.
36(b).

                                                            -9-
growing up, her son Allen sometimes helped his father with the farm labor, but he chose to help his
mother with the housework on a daily basis. Will Cantrell apparently believed that since he worked
so hard outside, he had no obligation to help his wife in any way with the requirements of
maintaining a home, despite the fact that she held down a full-time job and he did not.5

        Allen Cantrell went away to college, and moved to Nashville after graduating. But after his
mother was diagnosed with cancer, he made frequent visits to Giles County to help her. He arranged
for repairs to the house, visited her in the hospital, and stayed there with her when necessary. He
paid her funeral expenses out of his own funds.

        The factors related to a determination of whether an inter vivos conveyance was a fraudulent
attempt to deprive a surviving spouse of his or her elective share are meant to be guidelines to help
the court determine whether the intent of the testator was such as should invoke the spousal
protections of Tenn. Code Ann. § 31-1-105. Will Cantrell contends that most of those factors should
incline this court toward affirming the finding of fraudulent intent. He points out that there was no
monetary consideration for the transfer to the trust and that there was a relatively short interval
between the conveyance and Margaret Cantrell’s death. He also notes that Ms. Cantrell made no
provision for her husband in her will. He concedes that the relationship between husband and wife
was broken, but argues that we should not rest our decision on any single factor.

       Some of the husband’s arguments are based on factors that are relevant to his equitable
ownership, such as that his own labor was at least in part the source of the property transferred. Our
conclusion affirming the resulting trust to preserve his one-half interest in the farm makes such
arguments and factors less relevant to, or at least less persuasive on, the issues surrounding Ms.
Cantrell’s conveyance of her one-half interest in the farm.

       Allen Cantrell argues to the contrary that three of the five Warren factors support a finding
of donative intent. Aside from the strains in the relationship between his parents, he argues that the
consideration for the transfer was his love, support and affection for his mother, and that his
mother’s family was the ultimate source of the farm property.

        After thoroughly examining the record, we believe that the proof shows that in attempting
to convey the farm to her son, the testator was motivated by several distinct but mutually reinforcing
considerations. First, the conveyance demonstrated and was a product of her love and gratitude
toward her son for the support, care and consolation he gave her during the last ten years of her
marriage. Second, she lacked similar feelings or affection for her husband. To the contrary, she was
at least partially motivated by her anger and resentment toward her husband for withdrawing all

         5
            Allen Cantrell gave extensive testimony as to his father’s conduct in the home, which illustrates the great gulf
that had opened up between husband and wife. For example, he testified that “[s]he would spend all weekend long
cleaning. All weekend long cleaning from ceiling to floor, two levels of the house. And he would come in from whatever
it was he had been doing, hay or working on the farm, walk through the house with muddy clothes, muddy boots, track
it all over the floor. And didn’t care. He would sit in the chair and eat bananas and fruit and throw the peelings on the
floor and on the carpet. He did not help my mother in the least amount. The only help that she had was me.”

                                                           -10-
emotional and other support from her during the same time period. Mr. and Mrs. Cantrell, as much
as being angry and resentful toward each other, however, displayed simple disinterest in each other.
Significantly, both spouses had disentangled themselves from any real marital relationship in every
practical sense during the years before her death.

        Finally, Ms. Cantrell clearly wanted to keep the farm within her own lineage, to the exclusion
of her husband and his descendants except their son. This desire, however, was unattainable due to
the parties’ conduct prior to the transfer. She could not effectively deprive Mr. Cantrell of his
equitable interest in the farm they both treated as jointly owned. With regard to her one-half interest,
however, it appears to us that the testator acted out of a legitimate and justifiable donative intent.
See Warren, 626 S.W.2d at 18.

        In Sherrill v. Mallicote, supra, we stated that “[i]ntention and purpose are not necessarily the
controlling factors in determining whether a transfer is fraudulent. One must take into consideration
the effect of the transfer.” 417 S.W.2d at 802. In the case before us, had Margaret Cantrell’s attempt
to convey the farm in its entirety to her son been effective, her estate would have been without its
significant asset. Voiding that entire transfer would have allowed Will Cantrell to elect to take 40%
of the farm.

        However, establishing the resulting trust to protect Will Cantrell’s equitable interest in the
farm results in his taking 50% of the farm. This result is equitable. Allowing Will Cantrell to take
a 50% ownership interest in the farm and also to allow him to elect a 40% share of Margaret
Cantrell’s remaining half interest in the farm, as the trial court’s holdings could be interpreted, would
not be equitable.

         It appears to us, therefore, that Ms. Cantrell’s conveyance of her one-half interest in the farm
to a trust for the ultimate benefit of her son should not have been declared a fraudulent conveyance
under Tenn. Code Ann. § 31-1-105.

                                          VI. CONCLUSION

         The order of the trial court is reversed in regard to voiding the conveyance of the farm, but
it is affirmed in regard to the establishment of a resulting trust on one-half of the property for the
benefit of Will Cantrell. We remand this case to the Chancery Court of Giles County for any further
proceedings necessary. Tax the costs on appeal equally between the appellant, Allen Cantrell and
the appellee, Will Cantrell.


                                                         ___________________________________
                                                         PATRICIA J. COTTRELL, JUDGE




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