### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 3, 2002

Session
THE ESTATE OF ALLINE ELI ZABETH GLASGOW, CLARENCE E. BIGGS, ET AL 

### . v. VIRGIL S. WHITTUM, ET AL 

### . Appeal from the Chancery Court, Probate Division for Sumner County

No. 2000P-12 C.L. Rogers, Chancellor

No. M2001-02263-COA-R3-CV - Filed December 19, 2002

Proponen ts appeal judgment of the trial court on a jury verdict agains t the Will

on a finding of undue influenc e by

the propo nents upon

the testa trix. We aff

irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S. and J.S. D ANIEL , S P . J., joined.
James Robin M cKinney , Jr., Nash ville, Te nnessee , for the

appella nt, Virg il S. Whittum.
Paul T. Housch, Nashville, Tennessee, for the appellees, Clare nce E. Biggs, Ray

mond Glasgow, Jr., R.B. Big gs, Rich ard Big gs, and William Ray

Bigg s. OPINION
Alline Elizabeth Glasgow was married to Ray mond Glasgow for 28 years prior to his dea

th on February

24, 1999. No children were born to the marriage, but Alline Glasgow had f ive children by a previous marriage: Richard Bigg s, R.B. B iggs, Willie Big gs, Clar ence B iggs, and Norma Jean Biggs Whittum. Raymond Gla sgow had one child by a previous marriage, Ray

mond Glasgow, Jr. The former husband of Alline Glasgow, Clarenc e E. Bi ggs , J r. , h ad a c hi ld by a previous marriage, Harold Biggs, who lived in Florida. Appellant, Nor ma Jean Biggs Whittum wa s married t o Appellant Virgil Whittum. Alline Gla sgow suf fered f rom chro nic ly

mphocy tic leukemia, asthma, hypertension, and congestive heart failure. F ollowing the death of Raymond Gla sgow on February 24, 1999, Allin

e Glasg ow moved t

o the home

of Virg il and Nor

ma Jean Whittum and, on March 3, 1999, Norma Jean Whittum called Attor ney Robert Rut

herfor d to set up an appointment for Alline Glasgow to makea will. At a meeting that same day

between Robert Rutherford, Virgil Whittum and Alline Gla sgow, a

power of att orney wa s pr epared

whereb y V irgil Whit

tum was to b ecome attorney in fact for Alline Glasgow. Virgil Whittum then drove Alline Glasg ow to a nearby f uneral homewhere she executed the power of attorne y. M r. Ruther ford’s p artner , Ralph De

Marco, a ctually-2-

prepared the will fr om notes taken by Mr. Rutherf ord and, on March 16, 1999, Virgil Whittum escorted Alline Glasgow to the office of Mr. Rutherford w here she execu te d a Last Will and Tes tament, devising all of her property to Norma Jean Whittum and naming Virgil Whittum as executor. Both Virgil Whittum and Norma Jea n Whittum we

re awa re of the contentsof the will at the time it was executed by Alline Glasg ow.
Alline Glasgow died November 4, 1999, and the will prepar ed by Attorneys Rutherfor

d and DeMarco was offered for probate. Three of the brothers of Norma Jean Biggs Whittum contested the will and, following a three day jury tria l, th e tria l jud ge directed a verdict for the proponents on all issues involving fraud and submitted the case to the jury on alleg ations of unsoundness of mind and undue influence. The jury returned a verdict in favor of the propone nts on qu estions o f unsoundness of mind, but returned a verdict against the will on issues of undue influence, thereby finding that the w ill was the product o f undue in

fluence by b oth Virg il Whittu m a nd Norma Jean Bigg s Whittum. The trial court overruled the proponents’ motion for a new trial and they timely

appealed. Appellan ts assert four issu es on app eal:
I. Whether

the Trial Court

Erred in Correctly Charg

ing the Jury on the Legal Standard of

Undue Influence

and Whether the Trial Court erred in Deny ing the Special Jur

y Request. II. Whether

the Tria l Court Err

ed in Fa iling to Grant a Directed Verdict on Beha lf of the A

ppellant , Virgil

Whittum. III. Whether

the Trial Court Erred in Allowing the Rebuttal Testimony of L.Ralph DeMarco, Esquire. IV. Whether

there was Material

Evidence to Support

the Jury ’s Verdi ct.
As review in the Cou

rt of Appe als on issues II

and IV asserted

by A ppellant s involve o nly questions of law, it is well to recognize controlling law:

In this case, only the plaintiff a nd the defendant

testified concerning the fac ts of the accident. The Court of Appeals does not reweigh the evidence or reev aluate witness’ credibi lity

in an appeal from a jury

verdict. Grissom v. Metropolitan Gov’t of Nashville , 817 S.W.2d 679 (Tenn. App. 1991). This Court on appeal is required to take the stronges t l eg it im at e v ie w o f t he ev id en ce fa vo ri ng th e p re va il in g p ar ty, discardall contrary

evidence, allow all reasonable inferences to uphold the jury ’s verdict and set a side the ju

ry verdict only when the

re is no ma

terial e vidence to support it. T.R.A.P. 13(d). Smith Count y v. Eath erly , 820 S.W.2d 366 (Tenn. App. 1991), cert. denied , __ U.S. __, 112 S.Ct. 1762, 118 L.Ed.2d 424 (1992); Glover v. Oakwood Terrace Associated II , 816 S.W.2d 43 (Tenn. App. 1991).
Witte r v. Nesbit

, 878 S.W.2d 116, 121 (Tenn. Ct. App. 1993).-3-

Appellat e review of

the action of the trial court in declining to gra nta motion for a directed verdict involves only a question of law. Ingram v. Earthman , 993 S.W.2d 611, 626 (Tenn. Ct. App. 1998) (appeal denied and rehearing of denial of appeal denied, certiorar i denied, 528 U.S. 986, 120 S.Ct. 445, 145 L.Ed.2d 362).
Whether “material evidence” exists in the record sufficient to s u bmit a cas e to the ju ry is likewise a question of law. Cude v. Culberson , 209 S.W.2d 506, 513 (Tenn. Ct. App. 1947).
This Court has held: Of course, reviews under “preponde rance of theevidence” and “material evidence” tests are not similar and, in fact, are poles apart. Unde r the preponderance of evidence test, the evidence is weighed by the reviewing Court on an evidentiary f

act scale. Whicheve

r side of the fac t scale is heavi er will be the finding of the

Court. Where the review is on the test of “material evidence ” no scale of evidence is used by the reviewing court. I

t is simply a search of the r ecord to ascertain if material evidence is present to support the verdict. It matters not a whit where the weight or preponderance

of the evidence lies under a material evidence review . The reviewing Courtmight well be of

the opinio n that the

evidenc e preponderate s heavily agains t the judgment below, but under a material evidence review, if material evi dence i s found to support the judgment, that is, evidencefrom which a trier of facts, if he were inclined to believe it, could reach the conclusion reached, then, the judgment based thereon mu st be af

fi rm ed . T ha t i s w hy a “material evidence” test is one of law; not of fact. To search for

the presence of evidence is a task of law. To weigh evidence is a task o f fact. Hohenberg Bros. Co. v. Missouri Pac. R. Co. , 586 S.W.2d 117, 119-20 (Tenn. Ct. App. 1979).
The record in this case is replete with “material evidenc e” whichwould support a jury ver

dict on the undue

influenc e issue wh

ether th at verd ict had been for the contes tants or th e proponents. The jury verdict having been for the contestants and against the proponents and that verdict ha ving been approved by the

trial judge, weare without authority on a ppeal to disturb t

he verdi ct. T.R.A .P. 13(d).
In order for this Court to hold that no material evidence supported the verdict , or that Virgil Whittum was entit

led to a di

rected verdict , we would

have to ho ld th at as a ma tte r of law, Alline Glasgow received independent legal a dvice and that

the powe r of attor ney given to Virgil Whittum March3, 1999 did not trigger a presumption of undue influence . The record does not support such finding s. The rec ord showsthat it wa s Norma Jean Biggs Whittum who called M r. Ruther ford to arrange a will for

Alline Gla sgow. Mr . Rutherf ord had p reviousl y r eprese nted Virg il Whittum in other matters. The draft

of the will not prepared by Rutherford but rather by

DeMarco was sent not to Allin e Glasg ow but to Virgil Whittum who read the will to her. Attorney DeMarco gave no advice to Al lin e Glasgow and discussions between Robert Rutherford a nd Alline Glasgow were limited to a brief

confer ence on March 3, 1999, whe

n Virgil Whittum had b

rought M rs. Glasg ow to-4-

his office and

there obtained her

power of attorne y. V irgil Whit tum used th

e power of attorn ey to se ll the rea

l estate b elonging to Alline Glasg ow at lessthan its ap praised value and promptly deposited the proceeds of the sale i n the j oint bank a ccoun t of Vi rgil W hitt um and Norma Jean Biggs Whittum. These actions, while no t c onclusive, clearly triggered a cha

rge to the jury

as to the presumption of Mat lock v. Simpson , 902 S.W.2d 384 (Tenn. 1985). While this case was pending on appeal the supreme co urt, on May 23, 2002, rende red its opinion in Childress v. Currie , 74 S .W.3d 324 (Tenn. 2002), restricting the scope of the Matlock presumption to exclude an unexercisedpower of attorney . The exclusion is inapplicable at bar since Virgil Whittum exercised the power of

attorne y to dispose of

the major

asset o f Alline Glasgow and deposit the resulting proceeds in the joint account of Virgil and Norma Jean Whittum.
Said the Court:
The issue of undue influence should “be decided by the applicatio n of sound principles and good sense to the facts of each case.” Id. at 388 (quot ing Halle v. S

ummerfie ld , 199 Tenn. 445, 454, 287 S.W.2d 57, 61 (1956)). A careful reading of Matlock and Mitchell shows that an unexercisedpow er of attorney does not in and of itself create a confidential re la ti on sh ip an d w e c la ri fy Matlock to t h e extent it sugge sts otherwise. The core definition of a confidential relation ship requires proof of dominion and co n trol. Matlock , 902 S.W.2d 15 385-86; Mitchell , 779 S.W.2d 384 at 389. When an unrestricted po wer of attorney is executed but has not y et been exercised, good sense dictates that there exists no dominion and control and therefore no confidential relationship based solely on t he existence of the power of attorney. I

n Matlock , there was ad ditio nal evidence of dominion and control based upon the attorney -client relationship and the personal execution by the a ttorney of the will and t he power of at to rn ey. Matlock , 902 S.W.2d at 385-86. In Mitchell , the nie c e acted as care taker to her ailing uncle, chose an attorney for him, drove her uncle to the atto rney’s of fice where he signed the powe r of attorney and will in her van, and began exercising he r power of attorney bef

ore her uncle’s death. Mitchell , 779 S.W.2d at 386-87. Childress , 74 S.W.2d at 329. Virgil Wh ittu m was therefore required to bring forth clear and convincing evidenc e to rebut the presumption of undue influence evidenced by the exec uti on of the power of attorney and the subsequent

use ther eof to the benefit of Virgil and Norma Jean Big gs Whittum and to the detriment of Alline Glasgow.
Cl ea rl y, there is material evidence in the record to support the verdict of the jury and the trial court co rrectly denied a directe d verdic t to Virg il Whittum.-5-

In their thir

d issue, A ppellant s assert that the trial court abused its discretion in allowing the rebuttal testimony of Attorney L. Ralph DeMarco. The trial cou rt did not a buse its dis cretion

in allowing the testimony. Attorney Robert Rutherford had implied that Attorney L. Ralph DeMarco was present at his March 3, 1999 conferenc e with Alline Glasgow. DeMarco, in the rebuttal te st im on y, asserted that

the first time he ha

d ever seen Mrs. G

lasgow was at the

execution

of the will on March 16, 1999.
The trial court ha s wide disc retion in allowing or disallowing rebuttal testimony

. Coates v. Thompson , 666 S.W .2d 69, 76 (Tenn. Ct. App. 1983). Such discretionary action will not be disturbed on appeal in the absence of an abuse of discretion. Johns v. Cald well , 601 S .W. 2d 37 (Tenn. Ct. App. 1980).
The trial cou

rt did not a

buseits discretion in allowing the rebuttal testimony of Mr. DeMa rco. Appellant complains of the correctness of the trial court charge to the jury on undue influence and of the refusal of the trial court to gr ant their special request for a jury instruction.
As to un du e i nf

lu en ce , t he tr ia l c ou rt ch ar ge d t he ju ry:
In this act io n, th e plai ntiff , Clar ence Bi ggs, R. B. Biggs a nd Ri chard B iggs have the bu rden o f esta blis hing, by a prepond erance of the evidence, all of the facts necessary to prove unsound mind and undue influence by Norma Jean Whittum. The law does presume undue influence by Vi rgil Whitt

um, placing the burden of proof upon Virgil Whittum, as will be explained to you later in t hese inst ructions

. The burde n of pr oof rega rding t h e claim of unsound mind and undue influence b y Norma Jean Whittum requires the burden a nd use of the term “preponderance

of the evidence.” That means that amount of evidence that causes you to conclude that a

n allegation is probably

true. . . .

. . . . A will may not be enforc ed if it is brought by undue influenc e. Undue influence is the ov ercoming of the mind of the person making the will by acts or conduct of another person. Mere general influence of another person that does not effect the act of making the will is not undue influence. To be undue influence, the influence must amount to coercion that destroy s the freedom of choice of the person making the will. It substitutes the wishes or desires of anothe r person and compe

ls the maker of the will to dispose of property in a way that

would nothave been done otherwise. In determining the issue of undue influence, you may consider, among other thin gs, th e foll owing:

One, the termsof the will unduly benefit the chief beneficiary of the will. Two, are the terms of the will different from the expre sse d intentionsof the ma

ker of the will.-6- Three, did th e chief

beneficiary ’s relationship to the person making t he will give the benefic iary

an oppor tunity to influence the terms of t he will. Did the menta

l and phy sical co ndition of the make

r of the w ill a llo w the maker’ s freedom of choi ce to be o vercome by t he actio n of other s. Did the beneficiary

of the will actively take pa

rt in determining the provisions of the will or in causing it to be executed or signed. A confidential relationship exists whenever the trust and confidence of one person is placed in the honesty a nd faithfulness of anothe r . If y ou find tha

t a confidential rel at ionship existed between the person making the will, Ms. Alline Glasgow and Norma

Jean Whittum, and y ou furthe r find tha t Norma Jean Whittum was active in causing the will to be made and un duly profited from it, there is presumpt io n that th e will was obtained by the undue influence of Norma Jean Whittum. This type presumption

may be over

come only if Norma

Jean Whittum proves by clear and convincing evidence that the making of the will was not the result of undue influence. As a matter

of law, I further instruct y

ou that thiswill is pre su med to hav e been obta ined by the undue

influenc e of Virg

il S. Whittum, due to the existence of the powe r of attor ney granted by

the decedent to Vir

gil S. Whittu

m. Now, this type

presump tion may

be overc ome if it is s hown by Virgil S. Whittum, by

clear and convincing evidence, that the dec edent received independent advice regarding the will’s provisions from a disinteres ted person ha ving full knowl edge of the facts and/or clear and convincing evi dence of the fairness of the transa ction. Th at is fairness to the legal rights and true wishes of Alline Glasgow, the decedent. To prove an iss ue by clear and co nvin cing ev idenc e, tha t part y having tha t burden must clearly show that ther e’s no serio us or substantial doubt about the conclusions that the party is attempting to prove.
The charge, as given by

the trial court, is a correct statement of the law of Te nn essee
. Appellan ts assert that

since the power

of attorney nominate d Virgil Whittum as attorney in fac t and the will left the bulk of the estat e to Norma Jean Biggs Whittum, the power of attorney did not trigger the presumption of undue inf luence bec ause Norma Jean Biggs Whittum did not hold the power of attorney. This a ssertion is based upon the erroneous assumption that undue

influenc e must be exercised directly

by the donee.
It is immaterial whether undue influenc e is ex er ci se d d ir ec tl y or in di re ct ly. Brown v. C obb , 53 N.M. 169, 172, 204 P.2d 264, 266 (1949). In determining whether undue influence is present, a central fo cus is on the means used and the effect upon the donor. See McE lhinney v. Kelly , 67 N.M. 399, 404, 356 P.2 d 113 , 116 (1960) ( “It i s not the na ture and extent of th

e influe nce, but i ts ef fect upon the mind of the testator which determines whether it is undue influence.” ) (qu otin g 1-7-

William J. Bowe & Douglas H. Parker, Page on W ills § 15.6 at 724); In re Estate of Gonzales , 108 N.M. at

586, 775 P.2d at 1303 (ultimate issue is effect of influence on donor). The underlying

theory of the doctrine is that the donor is induced by various means to execute

an instrument that, in reality, is the will of another substituted for that of the donor. In re W

ill of Ferri ll , 97 N.M. at 398,. 640 P.2d at 504 (Sutin, J., specially concurr ing). We specific ally

reject t he conte ntion that a

benefic iary

must be the one who exerts the undue influence. Montoya v. Torres , 823 P.2d 905, 909-10 (N.M. 1991). In a similar context, it has been held:
We next consider whether the contract between the Ke nnedys and Thomsen can be s et aside o n the basis of the undue influence of Franc is Petersen. Undue influence by a third person renders a transaction voidable at the instance of the victim of the undue

influenc e if

the other contracting party had reason to know of the undue influence. See Restatement Contracts (Second) §§ 164 (comm ent e ), 177 (comment
c ) (1981). In the present

case the trial court found that Kennedy s had reason to know of the undue influence practiced on Thomsen by Francis Petersen. Kennedy v. Thomsen , 320 N.W.2d 657, 659 (Iowa App. 1982). As observed by the

Supreme Court of Alabama:
It is not essential that the grantees should have personally ha d any connection withthe transaction. If anothe r, standing in confidential relation to the grant or in position to ex er t a do mi na nt in fl ue nc e, em pl oys such influence in behalf of another, however innocent, the result is the same, where the grantee parts wit h nothing , as in case of a gift. Roper v. Lenoir , 11 So.2d 361, 362 (Ala. 1943).
See also Restatement Contracts (2d) §§ 164, 177.
Aside from the fact that the charge as givenby the

trial judge provided that mere influence was not sufficient to viti ate the w ill, the difficulty with the specia l request relative to the right to fair argument and persuasion in order to induce a will is that no evidence appe ars in the record of any such persuasive efforts by Norma Jean Biggs Whittum. She testified: Q. Now, your mother, whe n your fathe

r died, your stepfathe r, you and Virgil took control of y our mother’s affairs, didn’t you? A. Virgil

took contr

ol of my mother’saffair s. I to ld Mama that I didn’t want to have anything

to do with it, be cause I

knowed ho w the boy s was, and she sa id-8-

I don’t want you being

involved in it, because you’ ve got enough just to take care of me. Q. And y ou believ ed, and you witnesse d and you saw y our husband, Virgil, take ove

r y our mothe

r’s aff airs. A. I saw him do what my mother asked him to do. Q. Now, when your stepf ather died and your mother star

ted living wi

th you , yo u started receiving $200

a week f rom her; i s that not r

ight? A. That

is true, but that money

- - wait just a minute. That money w as used for pads, groceries, her juices and special things that she wanted to eat.

. . . . Q. Now, when she died, y ou knew about the will, didn’t you? A. When she di ed, yeah, Vir gil wen t and go t it. Q. In fact, within three weeks after she made the Will, y ou knew about the Will? A. I knew it was a Will, but I did not know what was in the Will. I told her that I did not want to k

now what w as in it. Q. Well, do you remember your husband testifying y

esterday that there was this suitcase, that he had a briefcase and that he had the Will in there and that he read it to her? A. Yeah, but I wasn’t ther e. Q. Ok ay. So you didn’t want to look at the Will or have anything to do with the Will

because you knew y ou were in the Will, d

idn’t you, ma’a

m? A. I didn’t want to have any

thing to do with it. I didn’t care any thing about it. A

ll I cared a

bout was taking care of my mother and other

responsibilities that I had.
The charge to the jury

was a clear and correctstatement of the la w of Tennessee which fai

rly defines the legal issues involved in this case and does not mislead the jury. See Otis

v. Cambridge Mutual Fire Ins. Co. , 850 S.W.2d 439, 446 (Tenn. 1992). The denial of the special request was not err or. The case was fairly

tried on issues of material fact and the jury properly c

harged. The jury could have found either

way on the issue of undue influence and their verdict, approved by the trial judge, would with stand app ellate challeng e. The ju dgment o f the tria l court is in all resp ects af fi rm ed an d t he ca se is re ma nd ed fo r s uc h f ur th er pr oc ee di ng s a s m ay b e n ec es sa ry.
Costs of the

cause a re asse ssed ag ainst Appe

llants.

___________________________________ WILL IAM B. CAI

N, JUDGE