                       IN THE COURT OF APPEALS OF TENNESSEE
                           WESTERN SECTION AT JACKSON


IN RE: THE ESTATE OF HOWARD         )
D. SMITH, Deceased.                 )        Gibson Probate No. 10572-P
                                    )
                                    )
SHAUN MURRAY                        )
                                    )
      Plaintiff/Appellant,          )

vs.
                                    )
                                    )
                                             Gibson Equity No. 10700
                                                                          FILED
                                    )
JENNIE C. SMITH, Individually,      )        Appeal No.                      July 2, 1996
and JENNIE C. SMITH, as Conservator )        02A01-9503-CH-00055
for Howard D. Smith and WESTERN     )                                     Cecil Crowson, Jr.
                                                                          Appellate C ourt Clerk
SURETY COMPANY,                     )
MANUFACTURER,                       )
                                    )
      Defendants/Appellees.         )




             APPEAL FROM THE CHANCERY COURT OF GIBSON COUNTY
                          AT TRENTON, TENNESSEE



                   THE HONORABLE GEORGE R. ELLIS, CHANCELLOR



For the Plaintiff/Appellant:          For the Defendants/Appellees:
Scott Kirk                            Ted M. Hunderup
Jackson, Tennessee                    Humboldt, Tennessee




                                      REVERSED AND REMANDED




                                      HOLLY KIRBY LILLARD, JUDGE



CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                              OPINION

        This case involves an alleged breach of fiduciary duty by the conservator of an estate.

After a bench trial, the trial court held that the plaintiff had failed to prove a breach of fiduciary

duty. We find that the trial court misapplied the burden of proof and reverse the trial court’s

decision.

        The Plaintiff/Appellant, Shaun Murray (Ms. Murray), appeals the dismissal of her suit, in

which she sought to recover the value of two Certificates of Deposit from Defendant/Appellee,

Jennie C. Smith (Mrs. Smith), individually and as conservator of the estate of Howard D. Smith

(Mr. Smith).

        Mr. and Mrs. Smith were married in 1967. They maintained separate bank accounts

throughout the course of their marriage. Ms. Murray was Mr. Smith's grandniece. In 1980, the

Smiths went to attorney Harvey Boswell and executed reciprocal wills. Mr. Smith's will

provided that at his death one half of his estate would pass to Mrs. Smith and one half to Ms.

Murray. Mrs. Smith’s will provided that, upon her death, one half of her estate would pass to

Mr. Smith and one half would pass to Melvin L. Watson, Mrs. Smith’s son from a previous

marriage.

        In February of 1984, in an effort to avoid probate, Mr. Smith set up a separate checking

account under the names of “Howard D. Smith or Shaun Murray” (the Smith-Murray Account).

In addition to this checking account, Mr. Smith had Union Planters National Bank issue two

CDS payable to “Howard D. Smith or Shawn (sic) Ella Murray” for the amounts of $20,696.36

and $10,986.98 (CDS).

        When Mr. Smith became ill in 1992, Mrs. Smith petitioned the Chancery Court of Gibson

County and was appointed conservator of Mr. Smith’s estate. Subsequently, Mr. Smith was

admitted to Ridgewood Health Care Center, a nursing home. Mrs. Smith then established a

conservatorship checking account (Conservatorship Account) by transferring $17,000 from the

Smith-Murray Account. The transfer of the proceeds of the Smith-Murray Account to the

Conservatorship Account is not at issue in this appeal.

        In January of 1993, Mr. Smith's health deteriorated significantly. On January 29, 1993,

he was sent by ambulance to the City of Milan Hospital (Hospital). The Hospital called the

Smith’s housekeeper, Donna Simmons, that day to inform her of the transfer and of Mr. Smith’s

serious condition. Ms. Simmons gave this information to Mrs. Smith. Mrs. Smith immediately
instructed Ms. Simmons to go to the bank and get the necessary paperwork to cash the CDS.

Mrs. Smith completed the documents sent to her by the bank, indicating in the space provided

that the CDS were being cashed for "medical reasons." The bank cashed the CDS, and Mrs.

Smith placed the proceeds from the CDS into the Conservatorship Account on January 29, 1993.

Mrs. Smith did not seek court approval to cash the CDS and place the proceeds in the

Conservatorship Account. Five days later, on February 2, 1993, Mr. Smith died.

       After Mr. Smith’s death, Ms. Murray brought suit alleging breach of fiduciary duty by

Mrs. Smith and seeking to recover the value of the CDS from Mr. Smith's estate. At trial, Mrs.

Smith indicated that she was eighty-five years old and testified that she transferred the funds

because she was overwhelmed by incoming medical bills and because she was fearful that she

would not have the resources to pay future medical bills. The proof at trial showed that the

expenses charged to the conservatorship totaled $2,678.23. To support Mrs. Smith’s testimony

about the incoming medical bills, two medical bills totaling $2,123.01 were offered into

evidence. Upon Mr. Smith’s death, the Conservatorship Account totaled $49,041.08, comprised

of approximately $14,000 of the remaining proceeds from the Smith-Murray Account plus the

value of the two CDS. This went to Mr. Smith’s estate to pass under his will, one half to Mrs.

Smith and the other half to Ms. Murray.

       After a bench trial, the trial court found that Mrs. Smith had cashed the CDS in order to

properly carry out her duties as Mr. Smith’s conservator. In its Findings of Fact and Conclusions

of Law, the trial court stated:

               7. As Plaintiff, Shaun Murray carried the burden of putting forth proof
        that Defendant’s actions were outside the scope of her authority and/or improper.

                                              ****

                9. After observing the witnesses and evidence presented by both Plaintiff
        and Defendant, and upon reflection of the same, the Court found that the Plaintiff
        had failed to meet the burden of proof required.

The trial court then dismissed Ms. Murray’s claim.

        On appeal, Ms. Murray contends that the evidence at trial preponderated against the trial

court’s finding that Mrs. Smith properly fulfilled her fiduciary duty when she redeemed the

CDS. Ms. Murray maintains that the evidence shows Mrs. Smith redeemed the CDS so that their

value would be captured in Mr. Smith’s estate at the time of his death, because under Mr.


                                                 2
Smith’s will Mrs. Smith took one half of Mr. Smith’s estate.

       Our review of this case is governed by Tenn. R. App. P. 13(d), which provides that

review of findings of fact by the trial court shall be de novo upon the record of the trial court,

accompanied by a presumption of correctness of the findings, unless the evidence preponderates

otherwise. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Where the

evidence is conflicting, findings of the trial court are entitled to great weight on appeal because

the trial judge had the opportunity to observe the manner and demeanor of the witnesses while

testifying. Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. App. 1990). On an issue which

hinges on the credibility of witnesses, we will not reverse the trial court unless the record

contains clear, concrete, and convincing evidence other than the oral testimony of witnesses

which contradicts the findings of the trial court. Id. On questions of law, our review is de novo

on the record without a presumption of correctness. Marriott Employees’ Fed. Credit Union v.

Harris, 897 S.W.2d 723, 727 (Tenn. App. 1994).

       In arriving at its decision, the trial court stated that the burden of proof was on the

plaintiff, Ms. Murray, to show that Mrs. Smith’s actions in cashing the CDS were in breach of

her fiduciary duty. The court found that Ms. Murray failed to carry her burden of proof. This

was a misallocation of the burden of proof. In a transaction involving a fiduciary relationship, a

presumption of invalidity attaches to the transaction once it is shown that the fiduciary benefitted

from the transaction. Lanius v. Donnell, 222 Tenn. 58, 76, 432 S.W.2d 659, 667 (Tenn. 1968)

(quoting Roberts v. Chase, 25 Tenn. App. 636, 650-51, 166 S.W.2d 641, 650-51 (1942)). In

Lanius, the Court stated:

       “While equity does not deny the possibility of valid transactions between the two
       parties, yet because every fiduciary relation implies a condition of superiority held
       by one of the parties over the other, in every transaction between them by which
       the superior party obtains a possible benefit, equity raises a presumption against
       its validity; and casts upon that party the burden of proving affirmatively its
       compliance with equitable requisites, and of thereby overcoming the
       presumption.”

Id. (quoting Roberts, 25 Tenn. App. at 651, 166 S.W.2d at 650-51 (quoting 3 Pomeroy's Equity

Jurisprudence 790 (5th ed. 1941))). This presumption extends to all interactions between

persons in fiduciary and confidential relationships, embracing gifts, contracts, sales, releases,

mortgages, and other transactions by which the dominant party acquires a benefit from the other

party. Id. (quoting Roberts, 25 Tenn. App. at 651, 166 S.W.2d at 651).

                                                  3
       Moreover, under Tenn. Code Ann. § 34-11-115(c), a fiduciary such as Mrs. Smith must

obtain court approval before changing the nature of the fiduciary’s investment. Mrs. Smith did

not seek court approval before changing the nature of Mr. Smith’s investment, that is, redeeming

the CDS and transferring the proceeds to the Conservatorship Account. The statutory

requirement that Mrs. Smith obtain court approval in advance supports the conclusion that Mrs.

Smith had the burden of establishing the validity of the transaction.

        Accordingly, Ms. Murray had the initial burden of showing that Mrs. Smith obtained a

benefit by redeeming the CDs. This initial burden was met by demonstrating that the value of the

redeemed CDS in the Conservatorship Account went to Mr. Smith’s estate and that Mr. Smith’s

will devised one half of his estate to Mrs. Smith. Once the benefit to the fiduciary from the

transaction had been demonstrated, the burden then shifted to the fiduciary, Mrs. Smith, to prove

the validity of the transaction.

        In order to carry her burden of proof, Mrs. Smith would need to show at minimum what

she would have been required to prove had she sought court approval of the transactions in

advance, as required by Tenn. Code Ann. § 34-11-115(c). The statute does not set forth the

evidence a fiduciary is required to produce in order to obtain court approval. Consequently, we

look to prior case law for the standard.

        An analogous situation is discussed in Folts v. Jones, 175 Tenn. 77, 132 S.W.2d 205

(1939). In Folts, the guardian of an incompetent ward wanted to cash a life insurance policy for

the benefit of his ward’s estate, and he sued the named beneficiary of the policy in order to

ascertain his legal rights in the matter. Id. at 79-80, 132 S.W.2d at 206. The Court pointed out

that the beneficiary had no legal right to the benefits of the policy while the insured ward still

lived because the policy contained a clause reserving the right to change the beneficiary prior to

the death of the insured. Id. at 84-85, 132 S.W.2d at 208. Nevertheless, the Court noted that the

ward, while still competent, had indicated her desire for the defendant to collect the proceeds of

the policy by naming her beneficiary. Id. at 85, 132 S.W.2d at 208. The Court then quoted with

approval the following from Corpus Juris:

        “Before the character of the interest in property, held by a [ward], can be changed,
        it must be made manifest that it is necessary to protect and promote his interest.
        Although as a rule, the court will preserve, so far as possible, the interests of the
        succession, this rule yields to the paramount rule which makes the ward’s welfare
        the first consideration without regard to the rights of those who may have

                                                  4
          eventually rights to succession.”

Id.

          The Tennessee Supreme Court also required proof of necessity under similar facts in

Morris v. Morris, 195 Tenn. 133, 258 S.W.2d 732 (1953). In Morris, the plaintiff sought to

recover the proceeds of several United States Savings Bonds payable to the ward or the plaintiff.

Id. at 134-35, 258 S.W.2d at 733. The lawsuit was filed against the former guardian of the ward,

alleging that the guardian had redeemed the savings bonds and had reinvested the proceeds of

these bonds in various instruments made payable to the guardian or the ward. Id. at 135-36, 258

S.W.2d at 733. The plaintiff contended that he was entitled to recover the proceeds since the

guardian had presented no evidence that cashing the bonds was necessary for the ward’s upkeep.

Id. at 136, 258 S.W.2d at 733.

          In determining that the plaintiff was entitled to recover the proceeds of the savings bonds,

the Morris Court relied on the Arkansas case of Taylor v. Schlotfelt, 237 S.W.2d 890 (Ark.

1951), in which the Arkansas Supreme Court held that, where one co-owner had bought United

States Savings Bonds with the intention that his co-owner should receive the proceeds when the

purchaser died, and the purchaser was later judged incompetent, the guardian in possession of the

maturing bonds could not cash them except to reinvest the proceeds in the same way as the

original bonds, “unless the proceeds were needed to support and care for the incompetent.”

Morris, 195 Tenn. at 137, 258 S.W.2d at 734. While Morris dealt with United States Savings

Bonds, which were subject to certain federal regulations, Morris, 195 Tenn. at 137, 258 S.W.2d

at 733-34, the requirement that the fiduciary demonstrate that the transaction was necessary to

protect the interest of the ward is applicable to the facts presented in the instant case. See

Howard v. Imes, 90 So. 2d 818, 819 (Ala. 1956); 39 Am. Jur. 2d Guardian and Ward § 209

(1968).

          Accordingly, we hold that Mrs. Smith had the burden to prove that cashing the CDS and

transferring the proceeds to the Conservatorship Account was necessary to protect and promote

the interest of Mr. Smith. Even if Mrs. Smith’s actions were done in good faith in order to carry

out her duties as a conservator, establishing necessity was required.

          In the instant case, Mrs. Smith failed to show that redeeming the CDS and depositing the

proceeds in the Conservatorship Account was necessary to protect and promote Mr. Smith’s

                                                   5
interest. The undisputed proof showed that there was approximately $14,000 in the

Conservatorship Account and only $2,123.01 of outstanding medical bills when Mrs. Smith

redeemed the CDS. Thus, the evidence preponderates against a finding that the proceeds from

the CDs were necessary to provide care and support for the incompetent. Therefore, we hold that

Mrs. Smith breached her fiduciary duty when she redeemed the CDS and deposited the proceeds

in the Conservatorship Account.

         We next consider whether a constructive trust was created as to the portion of the

proceeds from the CDS which passed to Mrs. Smith under Mr. Smith’s will. Equity creates a

constructive trust as a means of ensuring that justice is done. Akers v. Gillentine, 191 Tenn. 35,

39, 231 S.W.2d 369, 371 (1948); Rowlett v. Guthrie, 867 S.W.2d 732, 734 (Tenn. App. 1993).

A constructive trust typically is imposed on one who

         by fraud, actual or constructive, by duress or abuse of confidence, by commission
         of wrong, or by any form of unconscionable conduct, artifice, concealment, or
         questionable means, or who in any way against equity and good conscience, either
         has obtained or holds the legal title to property which he ought not, in equity and
         good conscience hold and enjoy.

Livesay v. Keaton, 611 S.W.2d 581, 584 (Tenn. App. 1980) (citation omitted). Tennessee courts

have imposed constructive trusts in four specific types of cases. They are (1) where one acquires

the legal title to property in violation of an express or implied duty owed to the true owner, (2)

where one obtains the title to property through fraud, duress, or some other inequitable means,

(3) where one uses a relation of influence or confidence to acquire the legal title to property upon

terms more advantageous than those which could otherwise have been acquired, and (4) where

one obtains property with notice that another is entitled to that property’s benefits. Myers v.

Myers , 891 S.W.2d 216, 219 (Tenn. App. 1994); Gibson's Suits in Chancery § 383 (7th ed.

1988).

         In this case, Mrs. Smith violated her fiduciary duty when she improperly redeemed the

CDS and captured their value in Mr. Smith’s estate. Consequently, a constructive trust is

imposed against Mrs. Smith for the proceeds which passed to Mrs. Smith under Mr. Smith’s will,

one half the value of the CDS.     On remand, Ms. Murray is entitled to receive the full value of

the CDS, plus post-judgment interest from the date that Mrs. Smith cashed the CDS, minus the

amount, if any, that Ms. Murray received from Mr. Smith’s estate that is attributable to the CDS.

         The decision of the trial court is reversed. The case is remanded to the trial court for

                                                   6
further proceedings consistent with this Opinion. Costs on appeal are taxed to Appellee, for

which execution may issue if necessary.



                                             HOLLY KIRBY LILLARD, J.


CONCUR:



ALAN E. HIGHERS, J..



DAVID R. FARMER, J.




                                                7
