IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
December 30, 1999
ANALYN ROJO CANTRELL, )
Cecil Crowson, Jr.
) Appellate Court Clerk
Petitioner/Appellant, )
) Appeal No.
) M1998-00536-COA-R3-CV
VS. )
) Williamson Chancery
) No. II-P-98-2015
IN THE MATTER OF: )
ESTATE OF )
JERRY A. CANTRELL, Deceased, )
)
Respondent/Appellee. )
APPEAL FROM
THE CHANCERY COURT OF WILLIAMSON COUNTY
AT FRANKLIN, TENNESSEE
THE HONORABLE RUSS HELDMAN, CHANCELLOR
PHILLIP NEWMAN
401 Church Street
Franklin, Tennessee 37064
Attorney for Petitioner/Appellant
JUDY OXFORD
136 Fourth Avenue South
Franklin, Tennessee 37064
Attorney for Respondent/Appellee
AFFIRMED AND REMANDED
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
CRAWFORD, P.J., W.S.
COTTRELL, J.
OPINION
This appeals concerns the enforceability of a prenuptial agreement.
On appeal the appellant challenges the trial court’s application of the Dead
Man’s Statute, Tenn. Code Ann. § 24-1-203, to exclude parts of her testimony,
and the court’s finding that she entered into the agreement freely, knowingly, and
after a full and fair disclosure of the extent and value of her husband’s assets.
We affirm the trial court.
I.
Jerry A. Cantrell of Franklin, Tennessee died on November 11,
1997, survived by his widow, Analyn Rojo Cantrell, their ten-month-old son, and
five adult children by a former marriage. Mr. Cantrell had a will, but he had not
revised it after his marriage or the birth of his son; so for the purposes of this
proceeding, he is considered to have died intestate.
On January 7, 1998, an adult daughter petitioned the Chancery
Court of Williamson County to be appointed administratrix of the estate. She
alleged that the widow had waived any right in the estate, including the right to
administer the estate, by the execution of a prenuptial agreement. The court
issued letters of administration to the daughter.
On May 18, 1998, the widow petitioned the Chancery Court for a
year’s support, the award of exempt property to her, and an elective share of the
estate. The administratrix answered the petitions and raised as a defense the
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provisions of the prenuptial agreement. The petitions were heard on September
1, 1998, and taken under advisement by the chancellor. On September 23, 1998,
the widow asked the court to appoint a guardian ad litem for the minor child.
The court announced its decision on November 10, 1998, finding that the widow
entered into the prenuptial agreement after a full and fair disclosure of the
decedent’s assets, and without being under any improper external pressure or
influence. Therefore, under the provisions of the agreement, the widow was not
entitled to an elective share, exempt property, or a year’s support. The court did
appoint a guardian ad litem for the minor child.
II.
IS IT A FINAL JUDGMENT?
The appellee asserts that the chancellor’s order is not final because
it does not dispose of all the claims of all the parties. See Rule 3(a), Tenn. R.
App. Proc. This allegation is based on the fact that the chancellor appointed a
guardian ad litem and directed him to file appropriate pleadings for the child.
It is true that the appointment of a guardian ad litem suggests that
there are potential claims concerning the child and the estate. But, since this is
an estate in probate, there may be numerous outstanding claims involving many
other parties. If this were simply a claim against the estate, the denial of that
claim would be appealable immediately without waiting for the entire estate to
be settled. See Tenn. Code Ann. § 30-2-315(b). However, the petitions for a
year’s support, exempt property, and an elective share, are dealt with in separate
sections of the Code. See Tenn. Code Ann. § 30-2-101 (exempt property); Tenn.
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Code Ann. § 30-2-102 (year’s support); and Tenn. Code Ann. § 31-4-101, et seq.
(elective share). In only one case did the legislature anticipate an appeal. That
was in the case of a year’s support, and the code provides that if the amount set
by the court is not satisfactory to the interested parties, an appeal may be made
to “the appropriate court in accordance with § 30-2-609.” See § 30-2-102(f).
Neither section mentions a time limit or makes the order immediately appealable.
We are convinced, however, that Rule 3(a) does not prevent the
immediate appeal of the chancellor’s order in this case. The widow’s demands
are like any other claims against the estate. They therefore fall within the
provisions of Tenn. Code Ann. § 30-2-315(b). By this section, ordinary
claimants may appeal immediately where their claims are denied, without
awaiting the disposition of all the other claims. A widow seeking a year’s
support should not be in a worse position than an ordinary claimant. Therefore,
we think the chancellor’s order was a final judgment for the purpose of this
appeal.
III.
THE PRENUPTIAL AGREEMENT
The parties married in Bowling Green, Kentucky on March 3, 1997.
They executed the prenuptial agreement on February 28, 1997 in Louisville,
Kentucky where Mr. Cantrell owned some property. Each party waived any
rights he/she would acquire in the estate of the other by marriage. The agreement
specifically disclaimed a right to a distributive share, the right to administer the
other’s estate, a widow’s or widower’s allowance, and exempt property. The
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agreement also provided that it should be construed and enforced in accordance
with the laws of the Commonwealth of Kentucky.
Ms. Cantrell is a native of the Philippines, holding a degree in
elementary education. She worked as a maid and tutor in Singapore and
Vancouver, British Columbia. In 1994, her picture appeared in a mail order
bride catalog, and she received a letter from Mr. Cantrell. They began to
correspond and to talk on the telephone daily. In October of 1994, Mr. Cantrell
went to Vancouver, where the parties lived together for about a year before
moving to Mr. Cantrell’s home in Franklin.
Their child was born on January 15, 1997, and the parties decided
to get married. Mr. Cantrell asked Ms. Rojo to sign a prenuptial agreement.
Since Mr. Cantrell owned some property in Louisville and had an attorney there,
he employed the attorney to prepare the agreement. He also arranged for another
attorney to advise Ms. Rojo. They went to her attorney’s office on February 27,
where Ms. Rojo spent about thirty minutes alone with her adviser. The attorney
told her that he needed to do some research on the effect of Tennessee law, so the
parties left and returned the next day. She spent another thirty minutes alone
with the attorney while Mr. Cantrell prepared a list of his assets to be attached
to the agreement. Ms. Cantrell testified that she considered the list for about
three seconds before signing the agreement.
Kentucky law with respect to prenuptial agreements is not
appreciably different from Tennessee law. Such agreements are valid if they are
executed voluntarily after full disclosure of the parties’ respective assets and
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marital property rights. Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990); compare
Tenn. Code Ann. § 36-3-501 and Randolph v. Randolph, 937 S.W.2d 815 (Tenn.
1996). The Kentucky courts also examine whether the facts and circumstances
have changed since the agreement was executed, so as to make its enforcement
unfair and unreasonable. Gentry at 936. See also Edwardson v. Edwardson, 798
S.W.2d 941 (Ky. 1990).
A. DISCLOSURE
The appellant argues that the trial judge’s finding that she did have
a full and fair disclosure of the decedent’s property before signing the agreement
is against the preponderance of the evidence. See Rule 13(d), Tenn. R. App.
Proc. She testified, however, that she received the list prior to signing the
agreement. The list substantially conforms to the inventory of his estate filed
after Mr. Cantrell’s death. Although Ms. Cantrell did not bother to carefully read
the list (according to her testimony) it cannot be said that the extent of Mr.
Cantrell’s assets was not disclosed to her. Her lack of interest in the details of
the disclosure should not be used as a reason to invalidate the agreement. See
Wilson v. Moore, 929 S.W.2d 367 (Tenn. Ct. App. 1996). In addition, the parties
had lived together for over two years prior to the marriage, during which time she
must have acquired some knowledge of Mr. Cantrell’s affairs. See Kahn v.
Kahn, 756 S.W.2d 685 (Tenn. 1988); Randolph v. Randolph, 937 S.W.2d 815
(Tenn. 1996).
We cannot say that the evidence preponderates against the
chancellor’s finding.
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B. DURESS
The appellant also disputes the chancellor’s finding that she entered
into the agreement voluntarily. She attempted to testify that Mr. Cantrell
threatened to send her back to the Phillippines without her baby if she did not
sign the agreement. The chancellor excluded that evidence on the basis of the
Dead Man’s Statute, Tenn. Code Ann. § 24-1-203:
In actions or proceedings by or against
executors, administrators, or guardians, in which
judgments may be rendered for or against them,
neither party shall be allowed to testify against the
other as to any transaction with or statement by the
testator, intestate, or ward, unless called to testify
thereto by the opposite party. Provided, if a
corporation be a party, this disqualification shall
extend to its officers of every grade and its directors.
One of the leading cases interpreting this statute is Baker v. Baker,
142 S.W.2d 737 (Tenn. Ct. App. 1940) which also involved a prenuptial
agreement. The Baker court discussed the purpose of the statute, and concluded
that it did not apply to cases where the transaction about which the testimony was
offered did not increase or diminish the decedent’s estate but concerned only the
manner in which the assets will be distributed. 142 S.W.2d at 744. See also
Petty v. Estate of Nichols, 569 S.W.2d 840 (Tenn. Ct. App. 1977); Newark Ins.
Co. v. Seyfert, 392 S.W.2d 336 (Tenn. 1964). In this case Ms. Cantrell asserts
that she is among the class of persons that would take a share of the estate if the
decedent died intestate; therefore, her claims would not decrease the estate but
only affect the way the estate will be distributed.
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We think, however, that the demand for a year’s support and for the
exempt property definitely have the effect of decreasing the estate to be
distributed. An argument could be made to the contrary about the elective share,
but that distinction was never presented to the chancellor. We therefore hold that
the chancellor properly sustained the objection to the appellant’s testimony based
on the Dead Man’s Statute.
There is no other proof about the circumstances surrounding the
execution of the agreement. Therefore, the evidence does not preponderate
against the chancellor’s finding that Ms. Cantrell signed the agreement
voluntarily.
The judgment of the trial court is affirmed and the cause is
remanded to the Chancery Court of Williamson County for any further
proceedings necessary. Tax the costs on appeal to the appellant, Analyn Rojo
Cantrell.
_______________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
____________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
____________________________
PATRICIA J. COTTRELL, JUDGE