Tansil v. Tansil

673 S.W.2d 131, 1984 Tenn. LEXIS 808
CourtTennessee Supreme Court
DecidedJune 11, 1984
StatusPublished
Cited by12 cases

This text of 673 S.W.2d 131 (Tansil v. Tansil) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tansil v. Tansil, 673 S.W.2d 131, 1984 Tenn. LEXIS 808 (Tenn. 1984).

Opinion

OPINION

FONES, Justice.

We granted appellant W. Grigsby Tan-sil’s rule eleven application to review the finding of the Court of Appeals that there was “clear, cogent and convincing” evidence to establish the existence of an oral trust in real estate.

Appellees, Blanche and Rebecca Tansil were the former title holders to the realty in question, 152 acres of land located in Weakley County known as the “Tansil homeplace.” Blanche owned a three-fourths interest and Rebecca a one-fourth interest and the record reveals that the homeplace consisted of about one hundred acres of farm land and fifty acres of woods. Appellant W. Grigsby Tansil is the nephew of appellees.

On May 29, 1971, Grigsby Tansil married. Blanche Tansil attended his wedding. Sometime prior to the wedding, Grigsby had written his aunts expressing an interest in purchasing the homeplace.

At the wedding Blanche discussed the disposition of the Tansil homeplace with Grigsby and his two brothers, David and John. Blanche and Rebecca considered them the “only three heirs of the Tansil family.” Both David and John lived outside of Tennessee, had begun careers in photography and nuclear physics respectively, and further had not manifested any desire to live on the homeplace or to farm it. In contrast, Grigsby had already expressed his interest in the land and he was farming other land that he owned nearby.

On January 21, 1972, appellees executed a warranty deed, absolute on its face, conveying the Tansil homeplace to Grigsby, in fee simple. On February 1,1980, appellees filed a complaint in the chancery court requesting that the Tansil homeplace be divested from Grigsby and vested in appel-lees. Appellees asserted, in their complaint, that when the homeplace was transferred to Grigsby he took this property upon an express declaration of oral trust, to-wit:

The plaintiffs [appellees] advised the defendant [Grigsby] that if he would assure them that he would properly maintain the property and keep it in cultivation and would not sell the property but would keep the property in the Tansil family, they would transfer the property [132]*132to him based on these considerations and that the transfer would be free of any consideration, ...

In our opinion, the proof in support of the alleged oral trust is not clear, cogent and convincing.

We reaffirmed the long-standing rule that governs this case in Sanderson v. Milligan, 585 S.W.2d 573 (Tenn.1979), as follows:

[t]his court has consistently recognized that a trust may rest upon a parol agreement where the declaration of trust was made prior to or contemporaneous with a transfer, either by deed or by will, of an interest in realty. See Brantley v. Brantley, 198 Tenn. 670, 281 S.W.2d 668 (1955); Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666 (1935); Mee v. Mee, 113 Tenn. 453, 82 S.W. 830 (1904); Linder v. Little, 490 S.W.2d 717 (Tenn.App.1972); Kelley v. Whitehurst, 37 Tenn.App. 360, 264 S.W.2d 1 (1953). As a safeguard against fraud, the trust, and its terms must be proven by evidence that is clear, cogent, and convincing. Hunt v. Hunt, supra; Linder v. Little, supra. Id. at 574.

Contrary to some expressions in Tennessee cases indicating that the Tennessee rule is “unlike , many other states”1 in allowing the establishment of an oral trust in real estate, every jurisdiction in America embraces that rule. See Annot., 23 A.L.R. 1500 (1923). There is a great variety of expression among the states as to the degree of parole proof required to establish such a trust, but the courts are so uniformly reluctant to engraft an oral trust upon the legal title to real estate, evidenced by a written instrument absolute on its face, that all require a high degree of proof. The variations in expression appear to be rather insignificant. The words “clear” and “convincing” with varying combinations of third and fourth words are the most frequently used.

The establishment of the oral trust in this case rests entirely upon the testimony of Blanche Tansil, age eighty-three. She lived in Baltimore, Maryland, of necessity, because her eyes required regular treatment that she said was only available to John Hopkins Hospital. Appellant lived in Sharon, Tennessee. It is clear in this record that if there was an oral declaration of trust engrafted upon the deed to Grigs-by it could only have taken place in May 1971 when Blanche came to Tennessee for Grigsby’s wedding. There was no evidence offered of any telephone conversation or correspondence between May 1971 and the delivery of the deed in January 1972, wherein the Tansil sisters offered to convey the homeplace to Grigsby subject to the condition that he farm the land and that it remain forever in the Tansil family.

Blanche Tansil’s testimony established that while in Tennessee for the wedding she wanted to learn the extent of the interest each of her nephews, David, John and Grigsby had in farming and in retaining ownership of the Tansil homeplace in the family; that she ascertained that David and John’s circumstances were such that regardless of their interest it was not practical for them to further either of those objectives. But Grigsby was clearly in a position to carry out both objectives. She quoted him as saying:

“Aunt Blanche,” he said, “I am a farmer. That is my love.” He says, “I’d like to have charge of the farm.”

She added later that,

“So, he — and he agreed that he would keep it in his possession, carry it on. He would farm it — that’s the main word, he would farm it.”

It is upon that testimony that the oral trust must be either sustained or rejected.

Grigsby’s version of the discussion with his aunt, in May 1971, was that she informed him that they would not sell him the property but would rent it to him on the same terms that they had rented it to his father for many years, to-wit, for payment of the taxes; that upon their death they would leave the property to him in [133]*133their wills, all of which was satisfactory to him.

Blanche returned to Baltimore and on January 10, 1972, wrote the following letter to her attorney in Dresden:

Dear Mr. Thomas:
This concerns the attached warranty deed made out to Grigsby Tansil, our nephew, for the transfer of the land known as the homeplace. Rebecca and I are the fourth generation of Tansils to hold this land. There was no purchase price involved in previous transfers, and we would like to pass it on to Grigsby in the same way. Can’t you make out this deed of transfer without the consideration of a sum? We will appreciate your assistance to Grigsby in getting this land transferred to him. His two brothers, David and John, do not want the land and have instructed us to pass it on to Grigsby.
Sincerely,
Blanche Tansil

Blanche sent a copy of that letter to Grigsby with a handwritten note thereon that read as follows:

Dear Grigsby:

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Cite This Page — Counsel Stack

Bluebook (online)
673 S.W.2d 131, 1984 Tenn. LEXIS 808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tansil-v-tansil-tenn-1984.