                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                       July 6, 2000 Session

            IN RE: ESTATE OF RALPH I. CAMMACK, DECEASED

                      Appeal from the Chancery Court for Coffee County
                        No. PW-99-9     John W. Rollins, Chancellor



                   No. M1999-02382-COA-R3-CV - Filed November 9, 2000


This is a dispute between the deceased testator’s second wife and the two children of his first
marriage. The testator and his wife executed mutual and reciprocal wills which passed the bulk of
their estate to the survivor. The spouses agreed, and their wills reflected, that when the survivor died,
the estate was to go equally to the testator’s children. In conjunction with the wills, the spouses
executed an agreement that they would not change their wills even after the death of the other. After
the testator’s death, the wife began dissipating the estate, selling the family home, and giving her
own child the testator’s expensive grandfather clock. In an effort to preserve the estate, the testator’s
children commenced the underlying action, seeking to establish a resulting trust. After the trial court
granted the wife’s motion for summary judgment, the testator’s children lodged this appeal. Because
testator’s will gave the wife his estate in fee simple, she inherited the real property as tenant by
entirety, and there is no clear and convincing evidence that the testator intended her merely to hold
the property in trust for his children, we must affirm.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Robert L. Huskey, Manchester, Tennessee, for the appellants, Polly Ann Cammack Travis and Fred
Cammack.

Frank Van Cleave, Tullahoma, Tennessee, for the appellee, Molly M. Cammack, Personal
Representative of the Estate of Ralph I. Cammack.

                                              OPINION

       During his fifty year marriage to his first wife, Ralph I. Cammack (“the testator”) acquired
most of his estate. In the course of the marriage, the testator served in the armed forces and traveled
extensively, acquiring many interesting items. The testator’s first wife predeceased him. The
testator subsequently married the appellee herein, Mrs. Molly Cammack. This marriage produced
no children, although both the testator and his second wife had children from their previous
marriages.

        On May 12, 1994, the testator and Mrs. Cammack executed mutual and reciprocal wills
which passed the bulk of their estate to the survivor. Upon the death of the survivor, both wills left
the estate to the testator’s two children. In conjunction with the wills the spouses entered into a
contract in which Mrs. Cammack agreed not to change her will should the testator predecease her.
The contract stated in pertinent part:

       The parties acknowledge that, with the exception of certain items of personal
       property, the estate of the parties has been accumulated by the HUSBAND prior to
       the marriage of the parties. The HUSBAND desires to will virtually all of this estate
       to the WIFE with the understanding that the WIFE will devise the same upon her
       death to his children. The WIFE desires to fulfill the HUSBAND’s wishes . . .

       The HUSBAND agrees to make a will leaving his entire estate, with the exception
       of some U.S. Savings Bonds and certain items of personal property, to the WIFE and
       if the WIFE should predecease him, to his children.

       The WIFE agrees to make a will leaving her entire estate, with the exception of
       certain personal property, to the HUSBAND and if the HUSBAND should
       predecease her, to the HUSBAND’s children.

       The HUSBAND also agrees that he will execute, deliver and record a Deed to Create
       Tenants by the Entirety granting the WIFE an undivided one-half interest in his
       residence located in Manchester, Tennessee.

On the same day, the testator executed a deed to create a tenancy by the entirety in which he
conveyed an undivided interest in his residence to Mrs. Cammack.

        According to the attorney who assisted the Cammacks in drafting and executing these
documents, the testator was aware of the effect of these documents. The lawyer asserted that prior
to preparing these documents, he had consulted with the testator and Mrs. Cammack about various
legal alternatives that were available to carry out their desires.

       The testator died on November 16, 1998 at age 78. Mrs. Cammack was appointed executrix
and the will was admitted into probate in January 1999.

        In May 1999, the testator’s two children filed the underlying petition to establish trust which
alleged that Mrs. Cammack was dissipating the estate in violation of her contract with the testator.
They claimed that Mrs. Cammack had told them that with the exception of certain items specified
in the will, the estate was hers, “to do with as she saw fit.” They also alleged that Mrs. Cammack


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was in the process of selling the above mentioned residence in spite of the fact that the testator had
assured them that he had fixed the paperwork in such a fashion that their step-mother would use the
property as long as she lived and then it would pass to them. The two children theorized that
although the contract was not worded as such, Mrs. Cammack took a life estate, or held the property
in trust for them.

       Mrs. Cammack responded by moving for summary judgment. In support of her motion, she
provided the affidavit of the attorney who prepared the wills, the contract, and the deed. He attested
that:

       During those conversations, we discussed the conveyance of a life estate in real
       property, including the restrictions that would be imposed upon a life tenant. I
       specifically discussed with Mr. Cammack that with a life estate that Mrs. Cammack
       would not be able to sell or give away the property out right [sic] but only her life
       estate interest and that would insure that his children would have the real property at
       Mrs. Cammack’s death. I further explained to Mr. Cammack that creating a tenancy
       by the entireties with Mrs. Cammack gave her a present interest in the property and
       that in the event they were ever divorced, she would be entitled to take a share of it
       as “marital property” and that without the deed she would have no rights to any share
       if they were subsequently divorced. I explained to Mr. Cammack that under the Deed
       to Create Tenancy by the Entireties, Mrs. Cammack would take complete title to the
       property on his death, no matter what was in the will as her interest would pass under
       the deed and not the will. Following those discussions, I prepared the deed creating
       a tenancy by the entirety conveying said property in fee simple . . . During the
       discussions with Molly M. Cammack and Ralph I. Cammack, I discussed inter vivos
       trust agreements and testamentary trusts, the limitations and restrictions imposed
       upon the beneficiary and the Trustee of such a trust. Following those discussions, I
       prepared and Ralph I. Cammack executed the Last Will and Testament which
       conveyed his residuary estate to Molly M. Cammack outright without subjecting the
       same to any trust or other restrictions.

       In support of the children’s response, the testator’s son filed an affidavit in which he attested
that Mrs. Cammack had given to her own children “much of the personal property which had great
attachment to myself and my sister as well as our parents.” He stated:

       I was supposed to pick up some of my tools from my father’s shop one day, but
       before I could get there, one of her sons come and removed all of his [the testator’s]
       expensive woodworking tools and some of my own personal property. . . In addition
       for example, my parents had an expensive grandfather clock from Germany which
       had been appraised according to my father several years ago at between $13,000 and
       $15,000. I inquired what happened to the grandfather clock and she advised me that
       Kenneth McMurtree (her son) had the clock.



                                                  -3-
The testator’s children argued that because Mrs. Cammack was clearly in breach of the contract, they
were entitled to summary judgment. The trial court summarily granted Mrs. Cammack’s motion for
summary judgment. This appeal ensued.

                                                 I.

       Our Supreme Court outlined the standard of review of a motion for summary judgment in
Staples v. CBL & Assoc., Inc., 15 S.W.3d 83 (Tenn. 2000):

       The standards governing an appellate court's review of a motion for summary
       judgment are well settled. Since our inquiry involves purely a question of law, no
       presumption of correctness attaches to the lower court's judgment, and our task is
       confined to reviewing the record to determine whether the requirements of Tenn. R.
       Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);
       Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991).
       Tennessee Rule of Civil Procedure 56.04 provides that summary judgment is
       appropriate where: (1) there is no genuine issue with regard to the material facts
       relevant to the claim or defense contained in the motion, see Byrd v. Hall, 847
       S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled to a judgment as
       a matter of law on the undisputed facts. See Anderson v. Standard Register Co., 857
       S.W.2d 555, 559 (Tenn. 1993). The moving party has the burden of proving that its
       motion satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
       523, 524 (Tenn. 1991). When the party seeking summary judgment makes a properly
       supported motion, the burden shifts to the nonmoving party to set forth specific facts
       establishing the existence of disputed, material facts which must be resolved by the
       trier of fact. See Byrd v. Hall, 847 S.W.2d at 215.

       To properly support its motion, the moving party must either affirmatively negate an
       essential element of the non-moving party's claim or conclusively establish an
       affirmative defense. See McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588
       (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
       party fails to negate a claimed basis for the suit, the non-moving party's burden to
       produce evidence establishing the existence of a genuine issue for trial is not
       triggered and the motion for summary judgment must fail. See McCarley v. West
       Quality Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S .W.2d at 426. If the
       moving party successfully negates a claimed basis for the action, the non-moving
       party may not simply rest upon the pleadings, but must offer proof to establish the
       existence of the essential elements of the claim.

       The standards governing the assessment of evidence in the summary judgment
       context are also well established. Courts must view the evidence in the light most
       favorable to the nonmoving party and must also draw all reasonable inferences in the
       nonmoving party's favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v. Hall,


                                                -4-
       847 S.W.2d at 210-11. Courts should grant a summary judgment only when both the
       facts and the inferences to be drawn from the facts permit a reasonable person to
       reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995);
       Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89.

       In the case before us, there is no dispute of material fact, and each side argues that, based on
the undisputed facts, the law entitles it to summary judgment.

                                                  II.

       The children argue that the evidence demonstrates that Mrs. Cammack breached the contract
she made with the testator by dissipating the estate, that the contract was valid and binding, and that
they have standing to enforce it as third party beneficiaries.

        We agree that the contract is valid and binding. Unfortunately for the testator’s children,
however, although the contract is binding, nothing therein prevents Mrs. Cammack from selling or
distributing items from the estate. The contract required Mrs. Cammack to refrain from changing
her will after the testator’s death. The record contains no evidence that she breached that promise.

       In the contract, the testator agreed to “make a will leaving his entire estate,” with certain
exceptions, to Mrs. Cammack. The record shows that he did so. The testator’s will contains no
language restricting Mrs. Cammack’s ownership of the estate. The will states:

       With the exception of certain specific items of personal property which I listed and
       designated the beneficiaries thereof on a writing attached hereto and incorporated
       herein, I give, devise and bequeath all of the rest, residue and remainder of my estate
       of whatsoever kind and wheresoever located to my wife, Molly M. Cammack,
       absolutely and in fee simple.

       A conveyance in “fee” or “fee simple” means that the entire property, without limitation has
been unconditionally transferred forever. See, e.g., Grahl v. Davis, 971 S.W.2d 373, 377 (Tenn.
1998); Dickson v. Houston, 221 Tenn. 138, 141, 425 S.W.2d 586, 587 (1968). Thus, the property
Mrs. Cammack took under the will is hers.

        In the contract, the testator also agreed to execute a deed granting Mrs. Cammack “an
undivided one-half interest in his residence.” The record shows that the testator then executed a deed
creating a tenancy by the entirety in favor of Mrs. Cammack.

        A tenancy by the entirety is a form of property ownership unique to married persons. See
Griffin v. Prince, 632 S.W.2d 532, 534 (Tenn.1982). Its essential characteristic is that "each spouse
is seized of the whole or the entirety and not of a share, moiety, or divisible part." Sloan v. Jones,


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192 Tenn. 400, 402, 241 S.W.2d 506, 507 (1951). Upon the death of one spouse, ownership property
held under a tenancy by the entirety immediately vests in the survivor, and the laws of descent and
distribution do not apply. See Grahl v. Davis, 971 S.W.2d at 378. Thus, at the testator’s death, Mrs.
Cammack became the sole owner of the residence.

         In return for these promises by the testator, Mrs. Cammack promised to execute, and not to
change, a will leaving her estate to the testator’s children. That will was executed at the same time
as the testator’s will, and there is no allegation that Mrs. Cammack has attempted to revise or change
it. The testator’s children argue that the trial court incorrectly interpreted the contract as imposing
on Mrs. Cammack only the requirement that she execute and leave unchanged the will. We agree
with the children that that is the implied holding of the trial court. However, we also agree with the
trial court that that is the correct interpretation of the unambiguous language of the promises made
by the parties to the contract.

       Because the contract itself is clear and unambiguous and reflects the parties’ intent, it must
be enforced as written. In Munford Union Bank v. American Ambassador Cas. Co., 15 S.W.3d 448,
451 (Tenn. Ct. App. 1999), this court set out the rules for construction of contracts as follows:

       Contracts . . . are to be construed according to the sense and meaning of the terms
       which the parties have used, and if they are clear and unambiguous, their terms are
       to be taken and understood in their plain, ordinary, and popular sense. The rule of
       strict construction does not authorize a perversion of language, or the exercise of
       inventive powers for the purpose of creating an ambiguity where none exists, nor
       does it authorize the court to make a new contract for the parties or disregard the
       evidence (intention) as expressed, or to refine away terms of a contract expressed
       with sufficient clearness to convey the plain meaning of the parties and embodying
       requirements, compliance with which is made the condition to liability thereon.
       Neither does the rule prevent the application of the principle that policies of
       insurance, like other contracts, must receive a reasonable interpretation consonant
       with the apparent object and plain intent of the parties. (citations omitted).

Munford Union Bank, 15 S.W.3d at 450 (quoting Guardian Life Ins. Co. of America v. Richardson,
23 Tenn. App. 194, 129 S.W.2d 1107 (1939)). “Where there is no ambiguity, it is the duty of the
court to apply to the words used their ordinary meaning and neither party is to be favored in their
construction.” Munford, 15 S.W.3d at 451. The ordinary meaning of the language used in the
contract herein places no limitations on Mrs. Cammack’s ownership of the estate.

         The children would have us determine that the introductory language, “Husband desires to
will virtually all of his estate to the Wife with the understanding that the Wife will devise the same
upon her death to his children. The wife desires to fulfill Husband’s wishes . . . ” establishes a
restriction on Mrs. Cammack’s use and disposition of the property she inherited from the testator.
Such a reading would be contrary to the express language of the actual promises made in the contract
as well as the language of the deed and the two wills.


                                                 -6-
        Moreover, Mrs. Cammack presented evidence showing that the testator chose this means of
distributing his estate after considering other options, a fact which demonstrates that his intent to
execute the various documents was informed. The lawyer who drafted the contract, the wills, and
the deed attested that he discussed the various means of distributing the estate with the testator. The
lawyer explained about life estates, inter vivos trust agreements, and testamentary trusts, and the
testator rejected those options. Thus, even if the testator’s children are third party beneficiaries under
the contract, enforcing the contract will not prevent Mrs. Cammack from selling or otherwise
distributing items from the testator’s estate. Nothing in the plain language of the contract restricts
Mrs. Cammack’s right to sell or otherwise distribute items from the estate.

                                                   III.

       The testator’s children ask the court to impose a resulting trust on the assets of the estate,
arguing that such a trust would reflect the intent of the parties.

         In In re Estate of Nichols, 856 S.W.2d 397, 401 (Tenn. 1993), our Supreme Court adopted
the following as a “more comprehensive statement regarding the creation and application of resulting
trusts:”

        The imposition of a resulting trust is an equitable remedy; the doctrine of resulting
        trust is invoked to prevent unjust enrichment. 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.

        While resulting trusts generally arise (1) on a failure of an express trust or the
        purpose of such a trust, or (2) on a conveyance to one person on a consideration from
        another - sometimes referred to as a ‘purchase- money’ resulting trust - they may also
        be imposed in other circumstances, such that a court of equity, shaping its judgment
        in the most efficient form, will decree a resulting trust - on an inquiry into the
        consideration of a transaction - in order to prevent a failure of justice. However, the
        particular circumstances under which a resulting trust may arise varies from
        jurisdiction to jurisdiction.

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




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         In Burleson v. McCary, 753 S.W.2d 349 (Tenn. 1988), the Supreme Court similarly noted
the difference between resulting trusts based on the “classic situation” of one person paying a
consideration while another takes title and those based on gratuitous transfers. The Burleson case
involved an ailing father transferring real property by deed to his child to avoid liability of his estate
for medical bills with the understanding that the property or its value would be distributed among
all his children after his death.1

        The court stated that the theory of resulting trust in Burleson was “one of a failed or
frustrated trust” and that the facts fit the situation where “[f]requently, they [resulting trusts] are
imposed when the owner of property gratuitously transfers it and properly manifests an intention that
the transferee should hold the property in trust, but the trust fails for some technical or evidentiary
reason.” Burleson, 753 S.W.2d at 353 (citing RESTATEMENT (SECOND) OF TRUSTS § 411 (1959) and
G. Bogert, TRUSTS AND TRUSTEES § 468 (2d ed. 1977)).

         Resulting trusts and constructive trusts are both created by courts of equity in order
         to satisfy the demands of justice. One instance when resulting trusts are utilized
         occurs in a situation where there has been a declaration of an intent to create a trust
         and the trust, for some reason, has failed. Resulting trusts generally are imposed in
         accordance with the actual or assumed intention of the parties. See generally
         GIBSON’S SUITS IN CHANCERY §382 (W.H.Inman 6th ed. 1982)

Burleson, 753 S.W.2d at 352-53.

         Although resulting trusts, by their nature, are normally established by parol evidence, see
Smalling v. Terrell, 943 S.W.2d 397, 400 (Tenn. Ct. App. 1996), a high standard of proof must be
met in order to impose a resulting trust. Our Supreme Court has noted that the creation of a resulting
trust is not a means to avoid the law of inheritance of joint tenancies. See In Re Estate of Nichols,
856 S.W.2d at 402. The same is true regarding the law of other types of inheritances and
conveyances. Only under compelling circumstances may a court impose a resulting trust in
contravention of the legal effect of the documents themselves. See id. In Nichols, the Supreme
Court once again adopted the following statement of the high standard of proof upon which a trust
may be imposed:



         1
            The testator’s children rely on Burleson v. McCary for the proposition that a resulting trust is appropriate.
W e agree that Burleson is relevant to the issues presented in this case because of the type of transactions involved and
the court’s analysis of resulting trusts, exp ress trusts, and co nstructive trusts. H owever, we disagree tha t Burleson
supports imposition of a trust in the case before us. In Burleson the Supreme Court affirmed the trial c ourt’s decision
to impose a resulting trust because the weight of the evidence clearly supported the finding that the grantor did not intend
for the appellant to receive his residence as her separate property, but that he intended that she either pay his estate the
value of the prop erty or recon vey it so that it could be sold an d the proc eeds equ ally divided am ong all of the children
at his death. See Burleson, 753 S. W .2d at 352. In our case, there is simply no probative proof establishing that the
testator intend ed Mrs . Camma ck to hold h is estate solely for the use and be nefit of his children .



                                                             -8-
        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. 1996) quoting Savage v. Savage, 4 Tenn.App. 277, 285 (1927)).
The testimony of a single, interested witness typically is insufficient to establish a resulting trust by
clear, convincing, and irrefragable evidence. See King v. Warren, 680 S.W.2d 459, 461 (Tenn.1984);
Tansil v. Tansil, 673 S.W.2d 131, 133 (Tenn.1984); St. Clair v. Evans, 857 S.W.2d 49, 51 (Tenn.
Ct. App.1993).

         In the case before us, the testator’s children essentially argue that Mrs. Cammack received
the real and personal property of her husband, the testator, only to hold for the benefit of the
testator’s children, in spite of the language of his will devising his residual estate “absolutely and
in fee simple” and in spite of the deed creating a tenancy by the entirety. They rely on two pieces
of evidence to support their argument for imposition of a trust. The first is the language of the
contract, “The HUSBAND desires to will virtually all of this estate to the WIFE with the
understanding that the WIFE will devise the same upon her death to his children. The WIFE desires
to fulfill the HUSBAND’s wishes.” The second is the affidavit of the testator’s son, which states
in pertinent part:

        After my mother’s death and then the subsequent remarriage of my father, he told me
        that he wanted to see that his new wife was cared for, but that all the property that
        had been acquired by he and my mother, would end up with my sister and me after
        her death. He told me that he had made arrangements and fixed papers where his
        wife would have use of all his property while she was living and then at her death,
        it would all come to my sister and myself.

       This is insufficient evidence on which to determine that the intent of the testator and Mrs.
Cammack was for her to hold the testator’s estate solely in trust for his children in light of the
language of the documents disposing of the estate and in light of the other parol evidence, the
affidavit of the lawyer who advised the testator. That attorney explained to the testator various
methods for achieving the results that the children now argue he intended, but the testator chose not
to employ any of them. While the testator obviously hoped his widow would follow his wishes
regarding the property he had acquired with his children’s mother, he specifically refrained from
imposing limitations on her use of his estate.




                                                  -9-
        The testator’s expression of his wishes in the contract could be considered “precatory words.”
The question in such situations is generally did “the testator intend to impose a binding obligation
on the devisee to carry out his wishes, or did he mean to leave it to the devisee to act or not at his
own discretion.” Spicer v. Wright, 211 S.E.2d 79, 81 (Va. 1975) (quoting Smith v. Baptist
Orphanage, 194 Va. 901, 905, 75 S.E.2d 491, 494 (1953)). We think the evidence clearly indicates
the testator’s choice not to impose a legally binding obligation on Mrs. Cammack to keep his estate
intact during her lifetime. Absent language or acts creating a legally binding obligation, the only
obligation created by the testator’s wishes is a moral one, something this court is not empowered to
enforce.

         Thus, we conclude that the evidence the testator’s children have presented is not so clear,
cogent and convincing as to overcome the opposing evidence or to present a set of compelling
circumstances to justify establishment of a trust. Nor can we say that the imposition of a resulting
trust would be equitable. The evidence does not support a finding that the testator would have
approved of the imposition of a resulting trust. On the contrary, the record shows that his attorney
offered him the option of imposing a trust on the assets of his estate and of providing his widow with
a life estate in the property. He chose instead to execute a deed establishing a tenancy by the entirety
on behalf Mrs. Cammack, with full knowledge that such would empower her to sell or distribute the
property. He executed a will leaving her his remainder estate absolutely.

       Accordingly, the trial court’s decision to grant Mrs. Cammack’s motion for summary
judgment is affirmed. This case is remanded for any further proceedings which may be necessary.
Costs of this appeal are taxed to the appellants, Polly Ann Cammack Travis and Fred Cammack.



                                                        ___________________________________
                                                        PATRICIA J. COTTRELL, JUDGE




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