# Warren v. Compton > Court of Appeals of Tennessee · September 1, 1981 · 626 S.W.2d 12 URL: https://www.frixlaw.com/law-library/cases/9763656 ## Case - **Full name:** Marie Krantz WARREN, Plaintiff-Appellant, v. Opalyne COMPTON, Defendant-Appellee, Ouida Mae Turri, Defendant-Appellant, Charles W. Abernathy, Executor of the Estate of Oliver Carr Warren, Defendant - **Court:** Court of Appeals of Tennessee - **Decided:** September 1, 1981 - **Citations:** 626 S.W.2d 12; 1981 Tenn. App. LEXIS 558 - **Precedential status:** Published - **Opinion:** Concurring in part by Nearn - **Judges:** Matherne, Nearn, Inman - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763656 ## Opinion text NEARN, Judge, concurring and dissenting. While I agree with the results reached by the majority I must dissent from their interpretation of T.C.A. § 31-105. In a most scholarly manner the majority opinion traces the ancestral lines of T.C.A. § 31-105 to its primogenitor, the state of North Carolina. Then, the cases dealing with the statute and subsequent legislative amendments thereto are analyzed and concatenated to form a chain of pertinent decisions from the earliest times to the latest. *20 It is a job well done and I find but one fault with it and that fault is the basis of this dissent. It appears to me that no Court of this state has yet directly dealt with the full import of the 1932 amendment to the statute. The reported cases since 1932 deal with the addition of the words “or distributive share” as found in the 1932 amendment. Important as that may be, the change that has great significance to me is the deletion of the word “otherwise” as previously found in the statute and the substitution or addition of the word “others” in its stead. Prior to 1932, the statute provided “any conveyance made fraudulently to children or otherwise, etc.”. To me, the old statute meant any conveyance made to children fraudulently or otherwise with an intent to defeat the widow’s dower interest was void. In other words, if, by the conveyance the deceased intended the diminution of the widow’s right, which right did not come into existence until the death of the spouse, the conveyance would be presumed to be fraudulent and void. That seems to me to be the holdings and pronouncements of the Courts prior to the 1932 amendment. However, such ascribed meaning left to the Courts the task of reading a dead man’s mind in order to ascertain his motivation in making the conveyance. Such a task is difficult to say the least; especially when the law will not recognize ouija boards or seances as legitimate Court tools to assist in making that determination. Accordingly, each case had to be determined on its own “peculiar” facts with the end result, of necessity, usually being based upon some degree of judicial guesswork. Now, the statute reads, and has read since 1932, “any conveyance made fraudulently to children or others, etc.”. The substitution of the word “others” for “otherwise” radically altered the meaning of the statute in my opinion. It is no longer a conveyance fraudulently or “otherwise” made, that is subject to being set aside by a surviving spouse. It is now only fraudulent conveyances to others, that are subject to judicial scrutiny at the behest of the surviving spouse. To my mind, there is a world of difference between the two. In its present form the statute renders void only those conveyances which are first fraudulent. That is to say, if it is a bona fide conveyance, that is, one where the grantor has freely and completely parted with the ownership of the thing conveyed, either by outright gift or for monetary or other consideration, without any fraud having been perpetrated upon the grantor by any third person, the conveyance is not a fraudulent one. In short, if the conveyance is not fraudulent, the grantor’s motivation behind the conveyance matters not. Therefore, either spouse can sell, give away, throw away or use up whatever is exclusively his or hers during his or her lifetime so long as the conveyance is not a sham or a subterfuge (fraudulent) whereby control over the thing is seemingly fully parted with but actually is not. The spouse may not during life by subterfuge and fraud actually retain all the fruits and rights of ownership after having facially parted with the thing and then upon death, through an administrator or executor say “It was not mine at the time of my death and therefore my surviving spouse has no rights therein.” To say so is to lie and the law will not permit it. However, if the conveyance was a true conveyance and not a sham, the deceased did not die possessed of it or any interest in it and no right could attach in the surviving spouse. In my mind, this heretofor unrecognized change in the statute is a salutary one, because under the old statute every conveyance or gift made during coverture was subject to attack by the surviving spouse with results being dependent upon the deceased’s ethereal motivation as determined by a Court. We are not yet a community property state and I see nothing wrong or evil in permitting one to finally dispose of ones property during ones lifetime according to ones own wishes even if the effect of the disposition is to leave a smaller estate for someone who may or may not survive the grantor. Statutory law permits one to act after death and dispose of one’s assets. A dead man has no rights except those allowed by law to dispose of *21 assets after death. But, during life a citizen has or ought to have the right to dispose of his or her property as seems fit. No doubt there are those who would say that this construction of the statute would permit one to leave his or her surviving spouse practically destitute. It would. However, factual situations can be presented to show the other side of the coin. It would also permit one, while living, to give to the deserving, while the old statute prevented it. If a woman chooses to give everything she has to her children while she is living rather than leave an estate and have her drunkard husband, whom she has supported all her life, share in her estate as he is required to by law (and she is powerless to prevent it even by will) — what is wrong with that? Under the old statute the law effectively required one to leave an estate so it could be shared in by a surviving spouse, even if the spouse was totally undeserving. A citizen, married or not, ought to have the right to die without any estate whatsoever if he or she chooses, and I believe the statute in its present form so permits. I agree with the holding of my colleagues that both of the conveyances in question in this case were completed and entire. Therefore, they were not fraudulent. Having reached that conclusion, my inquiry would stop there and the subject of the deceased’s motivation would not be a subject of my inquiry. Motivation would be a legitimate subject of judicial inquiry when the conveyance was shown to be a fraudulent one. However, the surviving spouse would have no standing to set aside even a fraudulent conveyance unless it was made with intent to deprive the survivor of a distributive share. Not every fraudulent conveyance made would be made with that intent. The motivations for fraud are limitless. Therefore, while I agree with the results reached, I do not concur in the interpretation of the statute indulged in by the majority opinion. Done at Jackson in the two hundred and sixth year of our Independence and in the one hundred and eighty-sixth year of our Statehood. Opinion and Order on Petition to Rehear A Petition to Rehear has been filed by counsel for Opalyne Compton which is simply a reargument of matters previously considered by the Court. Accordingly, the petition is denied at petitioner’s cost. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763656. Public record. Not legal advice.