Weakley Equity; Honorable Homer W. Bradberry Chancellor.
Fones, J. wrote the opinion. Concur: Cooper, Brock, Harbison, JJ., Tatum, S.j.
The opinion of the court was delivered by: Fones
We granted appellant W. Grigsby Tansil'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 diversted from Grigsby and vested in appellees. 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 advised the defendant 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 to 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:
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); Kelly 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" *fn1 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 Grigsby 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, ...