Hunt v. Hunt

• Decision Date: 19 March 1935
• Citation: 80 S.W.2d 666,169 Tenn. 1
• Parties: HUNT v. HUNT.
• Court: Tennessee Supreme Court

80 S.W.2d 666

169 Tenn. 1

HUNT v. HUNT.

Supreme Court of Tennessee.

March 19, 1935

Appeal from Chancery Court, Shelby County; D. W. De Haven Chancellor.

Suit by Charles G. Hunt against Dee O'Connor Hunt. A decree for complainant was affirmed by the Court of Appeals, and defendant appeals.

Modified and affirmed as modified, and cause remanded.

Charles M. Bryan and Blan R. Maxwell, both of Memphis, for appellant.

H. H Honnoll, of Memphis, for appellee.

GREEN Chief Justice.

This suit was brought to impress a trust in complainant's favor, to the extent of a joint interest, upon certain property in Memphis held by his wife, the defendant. The trust rests upon an alleged parol agreement of the parties, and the case was tried before a jury. The jury found in favor of complainant, and the chancellor approved the verdict and entered an appropriate decree. The Court of Appeals affirmed the decree of the chancellor, and defendant filed a petition for certiorari, which we have granted.

Charles G. Hunt and Dee O'Connor were married in 1908. Upon the trial of the case below in October, 1933, Mrs. Hunt testified that she was 60 years of age. The precise age of Hunt does not appear, although the record indicates that he is older than his wife.

The parties appear to have lived on affectionate terms until 1932 or 1933. About this time trouble arose between them and they separated. Mrs. Hunt required her husband to leave the house where they lived; the title of the same standing in her name. She also brought suit against him for divorce, and the divorce case seems to have been pending in another court at the time of the trial of this cause before the chancellor.

At the time of their marriage, Hunt testified that he had about $8,000. Mrs. Hunt testified that he had nothing. He said that she had about $3,000 and afterwards got $1,000 more from some building and loan stock. She said that, including her building and loan stock, she had about $9,000 when they married.

It must be conceded that neither of these parties in testifying manifested a disposition to be entirely frank. Both of them appeared disposed to forget things that they conceived would be prejudicial to their interests in the litigation. Both seemed to love money. Hunt had been married previously, and his first wife obtained a divorce from him. Whatever money he had at the time of his marriage to his present wife was in the hands of his relatives probably, it is suggested, to keep his first wife from getting alimony. The present Mrs. Hunt, formerly Dee O'Connor, lived with her widowed mother before the latter's death, and was charged by her brothers and sisters with having appropriated something over $6,000 of the mother's funds. Indeed, the other distributees established this contention in court and obtained a judgment against Dee O'Connor for this amount about the time of her marriage.

After the marriage of the parties, whatever money she had was turned over by Mrs. Hunt to her husband. He was constantly employed, during the greater part of his married life with defendant, at an average salary of about $150 a month. Without controversy, both these parties have been extremely economical and thrifty. Hunt would turn over his salary each month to his wife and she would pay the household bills and allow him enough for personal expenses.

After Hunt's marriage to Miss O'Connor, he began to buy real estate. With the rents of property so bought and savings from his salary, other real estate was bought and some of this real estate enhanced in value. The parties had no children, and Hunt's salary was more than enough to support them. All the net rents and savings from his salary were reinvested. At the time this litigation started, the estate so accumulated is said to have been worth over $70,000.

Until 1920 the title to all the real estate was taken in Hunt's name. At that time he made two deeds conveying this real estate to Mrs. Hunt, under circumstances that will be hereafter mentioned. Title to the property acquired after 1920 was taken in Mrs. Hunt's name. Some bank accounts were kept in Hunt's name and some in his wife's name. The proof, however, overwhelmingly shows that Hunt managed the estate and made the investments, consulting at times with his wife, and she assisting in the collection of rents. The real estate men, insurance men, and others with whom dealings were had concerning the property practically all had their negotiations with Hunt and did not know his wife in the transactions.

In 1920, while Hunt conveyed all the real estate to Mrs. Hunt, he continued, however, to manage the property as before and likewise managed the property thereafter acquired, title to which was taken in his wife's name.

In the bill filed Hunt avers that there was, at the time of these transfers to his wife, a definite agreement between them that they were to jointly use and enjoy the property, and that the conveyances were made upon her express promise that she would hold title to the said property in trust and for their joint benefit. By way of preserving Hunt's interest, it was averred that Mrs. Hunt, at the time the deeds were made, executed a will leaving all the property to her husband upon her death.

In his testimony Hunt reiterates these statements contained in his bill a number of times, and his testimony to this effect is not shaken on cross-examination.

Explaining the reason for the conveyances to his wife, Hunt said that they were made upon her persistent request to that effect; that, having full confidence in her loyalty and integrity, and on account of his love and affection for her, he yielded to her insistence with the idea of preserving harmony in the family and in full reliance upon her promise to hold their property for their joint use and benefit.

Mrs. Hunt, in her answer and in her testimony, flatly denied that she made any such agreement as Hunt charges. She claimed that the property was hers; that it consisted of her original contribution and the increment thereof. She said that she allowed the title to the property to be taken at first, and to stand for a time, in her husband's name, owing to the fact that there was a judgment for about $6,000 against her in favor of the other distributees of her mother on account of the funds of her mother she was found in the chancery court to have appropriated. She also said that she was very much in love with Hunt, and for a time paid no attention to these titles, but that some instances came to her notice in which married men holding realty died intestate and their widows were remitted to homestead and dower. She obtained the conveyances because she wished to obviate any such result in her own case.

Mrs. Hunt at first denied that she had made any will in her husband's favor at the time of the execution of these deeds. Later, however, she said that she did not recall having made any such will. There is little doubt that the will was executed at the time the deeds were made, because Judge Ketchum testified in the case and confirmed Hunt's statement about the will. Judge Ketchum drew the will and found in his files, at the time the proof was taken, a jacket, the indorsement on which indicated that a will had been made by Mrs. Hunt in favor of her husband as charged. The carbon copy of the will had been extracted from the jacket.

It does not appear that Hunt ever discussed with any one else prior to this litigation the alleged trust agreement with his wife respecting the property. He said that he regarded this as a family matter, not appropriate for discussion with others. A sister and a niece of his wife testified to hearing Hunt repeatedly refer to the property as his wife's prior to the estrangement. Other witnesses testified to having heard Mrs. Hunt refer to the property as ours prior to the estrangement. We attach little importance to any of this evidence. The testimony of Mrs. Hunt's sister and niece was of course interested, and, on the other hand, the reference by a married woman to her property as ours is not significant, even though the title be in her name. At last, then, the existence or nonexistence of this parol trust depends on the testimony of Hunt and of Mrs. Hunt and such relevant circumstances as the record discloses. A careful consideration of the proof from these witnesses and of the weight of these circumstances is necessitated; the first error assigned in this court being that there is no evidence or no sufficient evidence to sustain the verdict of the jury and the finding of the courts below.

It is conceded that the seventh section of the statute of frauds is not in force in Tennessee and that a trust in real estate may rest upon a parol agreement. Woodfin v. Marks, 104 Tenn. 512, 58 S.W. 227; Thompson v. Thompson (Tenn. Ch. App.) 54 S.W. 145.

An express trust, like a resulting trust, without written support, must be established by evidence that is clear and convincing. The chancellor correctly so charged in this case. There is some criticism of the chancellor's charge because he did not use other phraseology in instructing the jury as to the necessary quantum of proof, but we think this criticism is not well made. Other phraseology does appear in some of our cases, but the variation of language is not material. The different expressions employed have about the same meaning, and it is enough to say that the proof must be clear and convincing.

The usual rule in civil cases that the appellate court will not interfere if there is any evidence to sustain the verdict of a jury approved by the trial judge does not apply in weighing evidence offered to set up a parol trust.

In McDonald v. McDonald (Overton equity, February 13 1917), a case involving this question, it was said...