### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MADGE KIRKHAM FELL, ET AL 

### . v. GLORIA RAMBO
Direct Appeal from the Chancery Court for Marshall County

No. 9147 Lee Russell, Judge

No. M1999-01039-COA-R3-CV - Decided May 5, 2000

This appeal involves a dispute over the proceeds of the sale of a family farm by a life tenant with an unlimited power

of disposition. Following the life tenant’s death, the remaindermen named in the life tenant’s husband ’s will filed suit in the Chancery Court for Marshall County against the executrix of the life tenant’s estate, the estate itself, an

d the beneficiar

ies named in

the life tenant’s will asserting that the life tenant lacked capacity to sell the farm, that the exe cut rix had unduly influenced

the life tenant to s

ell the farm,

and that the executrix had tor tiously interfere

d with their inheritance from the life tenant’s husband. The trial court, sitting without a jury, found no lack of capacity or undue influencebut determined that the remaindermen have an interest in the proceeds of the sale of the fa

rm. The trial cour

t also awarded attorney’s feesto the lawyer the remaindermen haddischarged earlier in the proceeding. The life tenant’s estate and her executrix now appeal the conclusion that the remaindermen named in her husband’swill have an interest in the proceeds of the sale; while the remaindermen appeal from the dismissal of the ir lack of capacity, undue influence, and intentional interference with inheritance claims and the award of fees to their former lawyer. We have determined that thetrial court corr ectly concluded

that the life tena

nt was capable of selling the farm, that her executrix did not undu ly influenc e her decision, and that the remaindermen’s former attorney was entitled to pay

ment. We have als

o dete rmined t hat the life tenant’s saleof the farm

terminated the remaindermen’s interest as a matter of law. Accordingly,
we reverse thejudgment awardin g the remainderm

en $269,420.89 and

remand the case

to the trial court for furthe

r proceedings. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in Part and Reversed in Part.

K OCH , J., delivered the opinion of the court, in which C AIN , J. and C OTTRELL , J. joined. Barry B. White and Robert O. Binkley, Lewisburg, Tennessee, for the appellant, Gloria Rambo.

WilliamB. Bradley, Brentw ood, Tennessee,

and Kevin S. Key, N

ashvil le, Tennessee, for the appellees, Madge Kirkham Fell, Betty Kirkham Bowland, Margaret Sanford Mullens, and Bernice Kirkham Bowers. John R. Reynolds, Nashville, Tennessee, Pro Se.1 The will listed these individuals as Ruth Crockett Claiborne, William E. Sanford, Margaret

SanfordMullens, Leo San f ord, Elizabeth Pe

ttus Jones, Hersc

hel C. Pettus, Madge

Kirkham Fell, Bernice Kirkham Bowers, and Betty Kirkham Bowland.

2 Apart from the Crockett

farm, Mr. Crockett diedwith assets worth $8,646.36. He also had debts amounting to $2,427.26.

3 This will contains substanti ally the same prov

isions as a will drafted earlier in 1991 by John Wallace, a Lewisburg attorney. Mr. Wallace wa s retained by Ms. Ra

mbo and never met M

s. Crockett. However, when M s. Crockett exec

uted the will that wa

s eventually

submitted to

probate, she was independently advised by the firm of Hartzog, Silva & Davies in Franklin, Tennessee



### . -2- OPINION

John E. Crockett and Nannie Bell Crockett were a childless married coupl e who lived in Williamson County. On March 11, 1959, Mr. Crock ett executed a w

ill giving Ms. Crocke

tt a life tenancy in all of

his real and

personal property, including his 173-acre farm near College Grove (the “Crockett farm”). The will

authorized Ms. Cr

ockett “to sell , mor tgage, use or consume such property, for her needs in h er sole and absolu

te discretion.” It a

lso provided that,

at Ms. Crockett’s death, the remainder

“which has not been disposed of” by Ms. Crockett would go to Mr. Crockett’s sister and his nieces and nephews living at Ms. Crockett’s death. 1 Mr. Crockett died in September 1963. His will was duly

probated vesting in Ms. Crockett the life estate in the Crockett farm and Mr. Crockett’s other property. 2

Ms

. Crockett continued to live by herself on the Crockett farm following Mr. Crockett’s death. In 1986, at

the age of eighty-eight, she executed a general power of attorney in favor of her niece, Gloria Rambo. Ms. Rambo remained Ms. Crock ett’s attorney-in-fact until Ms. Crockett’s death. In 1991, Ms. Crockett suffered a fall, and was briefly hospitalized. After her release from the hospital, she moved off the Crockett farm to th e Main Street Retir

ement Home in Corne

rsville
near Ms. Rambo’s home in Be lf ast. Ms . Rambo continued to visit Ms. Crockett re

gularly; while other family members visited less frequently.

On July 9, 1991, at the age of ninety-three, Ms. Crockett executed a will. The will contains several relatively small bequests and then leaves the residue of Ms. Crockett’s e

state to her niece and nephew, Ms. Rambo and Bobby T. Garrett. The will leaves nothing to theremaindermen na med in Mr. Crockett’s will. Ms . Crockett was not r elated to these remaindermen

except by marriage and did not have much contact with them. Finally, the will appoints Ms. Rambo as executrix. 3

In 1992, Henry Preston Ingram and Elizabeth A. Ingram, owners of the real property adjacent to the Crockett farm, approached Ms. R a mbo with an offer t o purchase the Cr

ockett farm. Ms. Rambo initially told the Ing rams that the farm was not for sale. On the Ingrams’ second or third attempt, Ms. Rambo brought the offer t o Ms. C rockett who approved it. While Ms. Crockett had sufficient funds to support herself, she decided to sell the farm be

cause she realized that she was not4 Bernice Kirkham Bowe rs and Debbie Little , the daughter of

Margaret Sanfor

d Mullens, intervened

as plaintiffs in April 1998. Ms. Ram bo has moved to dismis s Ms. Little as a par ty to this appeal on the grounds that Ms. Little did not request to be made a party and that the trial court never added her as a party. However, realizing that she overlooked Ms. Little’s April 7, 1997 motion to intervene as well as the a greed order da ted March 18, 1998 , allowing Ms. Little to intervene as a party, Ms. Rambo subsequen tly moved to dismi ss he r motion to dismiss Ms. L ittle’s appeal. Accordingly, her

motion to dismiss

Ms. Little as a party to this appeal is dismissed, with costs taxed to Ms. Rambo, and Ms. Lit tle’s motion to be substituted as a pa rty in the place of

her mother is granted.

5 The tria l court later gra

nted Ms. Rambo perm

ission to seek an int

erlocutory appe

al r egardin

g the remaindermen’ s interest in the pr oceeds of the sa

le of the Crockett farm. However, on April 2, 1998, this court de

clined to accept the inter

locutory appeal. See Fell v. Rambo , No. 01A01-9803- CH-00148 (Tenn. Ct. App. Apr. 2, 1998).
-3- going to be able to return to the farm to live. In early 1993, Ms. Crockett and the Ingrams signed
a co ntract for sale o

f the Crockett fa

rm, and Ms. Crocke

tt conveyed the fa

rm to th e Ingrams fo r $311,292. The net sale proceeds were approximately $307,000.

Ms. Crockett died on April 1, 1994. The followin g month, Ms. Rambo, ac ting as Ms. Crockett’s personal representative, petitioned to probate Ms. Crockett’s will. In September 1994, Madge Kirkham Fell and Be tty Kirkham Bowland, two of the remaindermen in Mr. Crockett’s wil

l, (“remaindermen”) filed suit in the Chancery Court for Marshall County seeking a declaration that they have an inte

rest in all the real and p

ersonal propert

y that Ms. Crockett

inherited from he

r late husband that had not be en used or co nsumed for her needs during her lifetime. Two additional remaindermen

in Mr. Crockett’s w

ill later int ervened as plain tiffs. 4 The persons named as defendants

in this declaratory judgment action were Ms. Rambo, in her capacity as Ms. Crockett’s personal representative and as a residuary beneficiary in her will, and the other beneficiaries named in Ms. Crockett’s w

ill.

The ensuing litigation became bitterly personal. The remaindermen accused Ms. Rambo of inveigling Ms. Crockett to sell the Crocket t farm for her ow n personal gain, o

f mismanaging Ms. Crockett’s money, and of forgery. On June 20, 1997, the trial court filed a memorandum opinion concluding that the remainde rmen had, as a mat

ter of law, an inte

rest in the proceeds o

f the sale of the Crockett far

m. 5 Accordingly, the trial court directed that three certificates of deposits totaling $207,000 of

the proceeds of

the sale of the farm be deposited with the clerk and master. The court also appointed an administrator ad litem for Ms. Crockett’s estate, granted the remaindermen access to the estate’s records and accounts and to Ms. Rambo’s personal account records, and directed Ms. Rambo to provide the remaindermen with a reconciliation of several certificates of deposit.

The trial court conducted a four-day trial in June and July 1998 on the following issues: (1) whether the r emainder men’s interest in the proceeds of the sale of the Crockett farm should be reduced by Ms. Crockett’s living expenses between the sale of the farm and her death; (2) whether any of Mr. Crockett’s personal property remained in Ms. Cro c kett’s possession at the time of her6 The remaindermen did not assert a claim for tortious interference with their inherita

nce until they filed their pre-trial brief on June 26, 1998 – almost four years after they filed their complaint. They also alluded

to this theory durin

g their opening sta

tements on the firs

t day of trial.

7 This judgment included the net proceeds from the sale of the Crockett farm ($307,000) + the interest to date on the three certificatesof deposit ($58,573.89)

! the capital gains tax due onthe saleof the farm ($73,181.00)

! the income tax on the interest earned by the th ree certificates of deposit ($14,222.20)

! the fees awarded to the remaindermen’s former lawyer ($8,750.00).
-4- death; (3) whether Ms. Crockett was incompetent to sell the farm; and (4) whether Ms. Rambo had undulyinfluenced Ms. Cr ockett to sell

the farm or had to

rtiously interfer

ed with the remaindermen’s inheritance. 6 Between July 7, 1998 and M ay 13, 1999, the trial court issued a series of four memorandum

opinions disposing of these issues. The court found that Ms. Rambo hadaccounted for all the money she ha

d managed for Ms.

Crockett and that M

s. Rambo “did notsteal a dime from the estate.” Next, the court found that Ms. Crockett was competent to sell the farm. The trial court al so found that M s. Rambo had not unduly influenced Ms. Crockett’s decision to sell the farm or intentionally

interfered with the remaindermen’s interest under Mr. Crockett’s will. In addition, the court concluded that none of Ms. Crockett’s living expenses had bee n paid from the proceeds of the saleof the farm. F inally, the trial court awarded the remaindermen a judgment for $269,420.89. 7 The trial court also directed the clerk and master to continue holding the proceeds of sale of the farm that had earlier been deposited into court.

Ms. Rambo ap peals as of right from the trial court’s decision that the remaindermen were entitled to the proceeds o

f the sale of the Cr

ockett farm. The

remaindermen, i

n turn, take issue w

ith the trial court’s conclusions that Ms. Crockett was competent to sell the farm and that Ms. Rambo hadnot exerted undue influence over Ms. Crockett and with the trial court’s refusa l to find that Ms. Rambo tortiously interfered with their inheritance. The remaindermen also take issue with the trial court’s decision to award $8,750 to their former lawyer.

The litigation in the trial court has not ended despite this appeal. Four days after this court heard oral arguments in this case, the remaindermen filed a Tenn. R. Civ. P. 60.02 motion in the trial court seeking relief from the judgement ba sed on alle gations that Ms. Rambo had committed “substantial fraud” that

was germane to the undue influence issue and that the interest earned on the certificate of deposit should be recalculated. Approximately t wo weeks later, the rem aindermen filed another motion requesting the trial court to recuse itself on the ground that it had declined to enforce its own orders relating to the custody of the certificates of depo sit, the filing of an interim accounting, and the disbursement of funds. After the trial court denied both motions, the remaindermen

filed a Tenn. R. App. P. 10 extraordinary appeal taking issue with the trial court’s denial of the motions and w ith its earlier decision against releasing to them the funds being held by the clerk and master . Ms. Rambo also moved to dismiss the representative of one of the remaindermen

as a party to this

appeal. We have consolidated the application for the extraordinary appeal with the Tenn. R. App. P. 3 appeal as of right. This opinion addresses the iss ues raised in

the-5-

appeal a s of right; while the issues rai sed in the extraor

dinary appeal a

re addressed in a

separate order issued contemporaneously with this opinion.

I. T HE R EMAINDER I NTEREST I N M R . C ROCKETT ’ S E STATE
The disposition of

the proceeds of the sale of the Crockett farm depends upon which version of Tenn. Code Ann. § 66- 1-106 (1993) ap plies to this case. The trial court applied the current version of the statute which mandates that the proceeds of the sale of property by a life tenant with unlimited power

of disposition that are not required for payment of the life tenant’s debts ar

e held in trust for the benefit of the remaindermen of the will creating the life estate. Ms. Rambo asserts that the trial court should have applied the pre-1981 version of Tenn. Code Ann. § 66-1-106 which terminated a remainder interest when a life tenant with unlimited powers of disposition sold the property subject

to the life estate . Ms. Rambo is corre ct.
A.

At common law, the gr

ant of a life esta

te, coupled wit

h the grant of a noncontingen t,
u nlimi ted power of disposition to the life tenant, vested fee simple title in the life tenant in the absenceof other

language in the will indicating a contrary intent. By vesting fee simple title in the life tenant, the common

-law rule extinguished reversionary or remainder interests automatically by operation of law. See Vandeventer v. McMullen, 157 Tenn. 571, 573, 11 S.W.2d 867, 867 (1928); Daly v. Daly , 142 Tenn. 242, 247 -48, 218 S.W. 213, 21 4 (1920); Bradley v. Carnes , 94 Tenn. 27, 30, 27 S.W. 1007, 1008 (1894). While the courts recognized andfollowed this common-law rule, they also noted that it occasionally defeated the apparent intent of the testator. See Ogle v. Ogle , 880 S.W.2d 668, 669 (Tenn. 1994); Hobbs v. Wilson , 614 S.W.2d 328, 330 (Tenn. 1980); Mauk v. Irwin , 175 Tenn. 443, 445, 135 S.W.2d 922, 922 (1940).

The General Assembly modified the common-law rule when it ena cted the 1932 Code of Tennessee. This c

ode provided that

When the unlimited power of dispositio

n , qualified or unqualified, notacc omp anied by any trust, is given expressly, in any written instrument, to the owner of any particular estate for life or years,

legal
or equitable, suchestate is changed into a fee absolute as to right of disposition and rights

of creditors and purchasers, but subject to any future estate

limited thereon or executory devise thereof, in event and
so far as the po wer is not executed or the property sold for the satisfaction of debts during the continua nce of the particular estate.8 An identical provision appears in the portion of the Cod e pertaining to conveyances of estates. See 2 Code of

Tennessee § 7603 (1932). It was last codified in its original form in Tenn. Code Ann. § 64-106 (1976).

9 See Act of June 3, 1981, ch. 450, 1981 Tenn. Pub. Acts 679 . One of the sponso rs of this bill had also represented the remaindermen in Hobbs v. Wilson

.

10 The word “however” that appeared in the bi ll as enacted was removed during the codification pro

cess.

11 The parties have focused the ir ar guments throughout this litigation on the application of Tenn. Code Ann. § 66-1-106 and its predecessors. Neither party has argued that Mr. Crockett’ s will

(continued...)
-6- 2 Code of Tennessee§ 8093 (1932). 8 Under the provision, a life tenancy with an unlimited power of disposition did not automatically vest fee simple title in the life tenant. The re m ainder interest remained viable unless the life tenant exercised the power of

disposition or the pr

operty was sold to satisfy debts accrued during the life tenancy. See Hall v. Hall , 604 S.W.2d 851, 855 (Tenn. 1980); Leach v. Dick , 205 Tenn. 221, 224-25, 326 S.W.2d 438, 440 ( 1959); Thompson v. Turner , 186 Tenn. 241, 245-46, 209 S.W.2d 25, 27 (1948); Abernathy v. Adams , 31 Tenn. App. 559, 567, 218 S.W.2d 747, 750 (1948). Conversely, if the life tenant disposed of the property, or the property w as sold to satisfy debts, the remainder interest was extinguished and did not transfer the proceeds of sale to the remaindermen. See Hobbs v. Wilson , 614 S.W.2d at 330- 31; Jones v. Jones , 225 Tenn. 12, 16-17, 462 S.W.2d 872, 874 (1971).

In 1981, following the Tenn essee Supreme Cou

rt’s decisions in Hobbs v. Wilson and Hall
v. Hall , the General Assembly again changed the rule governing life estates with unlimited powers of disposition. 9 This amendment added the following language to the statute:

provided, [however,] 10 that any proceeds from the sale of such estate, not nee ded for the satisfaction of debts of such owner during th e continuance of the p articu lar estate, shall be held in trust for such
owner for the beneficiaries of the remainder interest and the purposes stated in such writ

ten instrument.
Tenn. Code Ann. § 66-1-106. This amendment at least partially modifies the holding in Hobbs v. Wilson

. As a

result, remainde

rmen now have a st

atutory right to re

ceive the proce

eds of the sale

of any property held by a lifetenant with an unlimited power of disposition that are not used to pay the debts of the life tenant accrued during the life tenant’s life.

B.

The ultimate su ccess of the remaindermen’s case here depends upon which version of the statute governing life es

tates with unlimited

powers of dispositi

on applies. 11 If the pre-1981 version11 (...continued)

didnot give Ms. Crockett an unlimited power of disposition sufficient to trigger Tenn. Code Ann. § 66-1-106 or its pr

edecessors. Thi

s is understandabl

e in light of the similarity of the la nguage in Mr. Crockett’s will to the language construed in Hobbs v. Wilson , 614 S.W.2d 328 (Tenn. 1980) and the characterization of similar l angu age as an unlimite d power of disposit

ion in 2 Harry Phillips, Pritchard on the Law of Wills

§ 962 (3d ed. 1955). Because the parties have not raised the question,
we do not address dire

ctly in this appeal w

hether Mr. Crock

ett’s will gave Ms. Crockett an unlimited power of disposition.

12 The General Assembly enacted Tenn. Code Ann. § 32-3-101 to alter the common -law rule that a will devising real property spokeas of the time of its execution. The common law rule meant that real property acquired after execution of a

will did not pass under the will. See Nashville Trust Co. v. Grimes , 179 Tenn. 567, 574-75, 167 S.W.2d 994, 997 (1943); Nichols v. Todd , 20 Tenn. App. 564, 570, 101 S.W.2d 486, 489 (1936).
-7- of the s tatute ap plies, the residual beneficiaries named in Ms. Crockett’s will are entitled to the proceeds of thesale of the Crockett farm because Ms. Crockett exercised her power of disposition during he r lifetime. If the post-1981 version applies, the residual beneficiaries named in Mr. Crockett’s will prevail beca use of their statu

tory right to any proceeds of the sale of the Cro

ckett farm that are not used to pay Ms. Crockett’s debts incurred during her lifetime.

When the courts are called upon to constru e a wi ll, they must attempt to discover the testator’s intention, and they must give effect to that intention unless it contravenes some rule of law
orpublic policy. See Stickley v. Carmichael , 850 S.W.2d 127, 132 (Tenn. 1992); Daugherty v

. Daugherty , 784 S.W.2d 650, 653 (Tenn. 1990). Although construction of a will requires consideration of the circumstances surrounding it s execution, see Daugherty v. Daug herty , 784 S.W.2d at 653; Bell v. Shannon , 212 Tenn. 28, 40, 367 S.W.2d 761, 766 ( 1963), the c ourts must construe the will “to speak and take effect as if it had been executed immediately befor

e the death of the testator, . . . unless a contrary intention appear by its words in context.” Tenn. Code Ann. § 32-3-101 (1984). 12 See Calhoun v. Camp bell , 763 S.W.2d 744, 748 (Tenn. 1988); Bell v. Shannon , 212 Tenn. at 40, 367 S.W.2d at 766; State v. Felts , 151 Tenn. 390, 394, 270 S.W. 77, 78-79 (1925). See also 1 Jack W. Robinson, Sr. & Jeff Mobley, Pritchard on the Law of Wills and Administration of Estates § 417 (5th ed. 1994).

The courts also presu

me that the testato

r knew the law ex

ist ing at the time, as well as the law’s effect on the construction of his or her will. See Latta v. Brown , 96 Tenn. 343, 351, 34 S.W. 417, 419 (1896); Hearn v. Alexander , 3 Tenn. Cas. (Shannon) 224, 229-30 (1875); Hill v. Maloney , 21 Tenn. App. 216, 220-21, 108 S.W.2d 791, 793-94 (1937). Accordingly, in construing a will, the courts apply the law as it stood when the testator died because “until his death, the testator has the opportunity

to change his will to conform to existing law.” Third Nat’l Bank v. Stevens , 755 S.W.2d 459, 462 (Tenn. Ct. App. 1988). A legislative enactment after the testator’s death cannot change the13 In most jurisdictions, if a will’s langua

ge creates a ce

rtain estate whe

n the will is executed, butthe law later changes so that the same language would pass a diffe rent estate, the law in force when the will was made governs unless the langu age of the w ill makes it clear that the testator intendeddiff

erent ly. See 4 William J. Bowe & Douglas H. Parker, Page on the Law of Will s , § 30.27 (1961). Tennessee does not appear to follow this rule.
-8- construction of the will. See Calh oun v. Campbell , 763 S.W.2d at 749; 4 William J. Bowe & Douglas H. Parker, Page on the Law of Will s § 30.27, at 169 (1961). 13
Moreover, the law in effect when the testator dies controls all substantive rights in the estate, whether vested or inchoate. See M arler v . Claunch , 221 Tenn. 693, 698, 430 S.W.2d 452, 454 (Tenn. 1968). See, e.g., Calhoun v. Campbell , 763 S.W.2d 744 (holding thata new statute treating adoptedchildren as descendants did not apply to the testator’s will leaving property to “lineal descendants”

of the remainderman under testator’s will despite the fact that the remainderman died after the law was chan

ged); Williams v. Williams , 79 Tenn. (11 Lea.) 652, 656 (1883) (holding that the Rule in

Shelley’s Case applied to a will where the testator died before a statute passed repealing the Rule); In re Estate of Bass, No. 02A01-9504-CH-00094, 1996 WL 325582 (Tenn. Ct. App. June 11, 19 96) (No Tenn. R. App. P. 11 applica tion filed) (holdin

g that an amendmen

t of a statute providing for a widow’s support did not apply because it was enacted after the testator’s death).

The Tennessee Supreme Court has already implicitly applied these principles in the context of the pre c ursor to Tenn. Code Ann. § 66-1-106. The Court rendered decisions in Mauk v. Irwin , 175 Ten n. 443, 135 S.W.2d 922 (1940) and Magevney v. Karsch , 167 Tenn. 32, 65 S.W.2d 56 2 (1933) after the enactment of the 1932 Code. Nev

ertheless, the sta

tute did not affect the ou

tcome of either case because the wills under consideration were executed and probated before 1932. See Redman v. Evans , 184 Tenn. 404, 407 -08, 199 S.W.2d 115, 116 (1947); Leach v. Dick , 205 Tenn. at 225, 326 S.W.2d at 44

0; Mauk v. Irwin , 175 Tenn. 443, 135 S.W.2d 922; Magevney v. Karsch , 167 Tenn. 32, 65 S.W.2d 562.

Mr. Crockett’s will

is the controlling in

strument in this

case. In his will, Mr. Crockett gave Ms. Crockett a life estate with unlimited powers of dispositi

on inall of his property. The language of this will and its legal implications control whether Ms. Crockett’s sale of the property defeated the interest

of the remaindermen named in his will. Therefore, we must construe Mr. Crockett’s will according to the law in existence in 1963 when Mr. Crockett died.

Because the post-1981 ver

si on of Te nn. Code Ann. § 66-1-106 does not affect our construction of Mr. Crockett’s will, this case is controlled by the pre-1981 version of the statute as construed by Hobbs v. Wilson . In the will at issue in Hobbs v. Wilson , the testator gave his wife a life estate in ce

rtain property a

nd then stated in his

will as follows: having full confidence

in [my w ife’s] judgment and discretion, I author ize her to use so much of the corpus thereof as she shall find necessary for her comfort and maintenance, she being the sole judge14 This closely follows a sample clause in a contemporary edition of a Tennessee treatise on the law of wills. See 2 Harry Phillips, Pritchard on the Law of Wills and Administration of Estates § 962 (3rd ed. 1955).
-9-

of her needs, . . . and at her d ea th, whatever remains undisposed of, if any, I will and devise the same in fe e si mple to my twelve nieces and nephews as equal tenants in common . . . .

Hobbs v. Wilson , 614 S.W.2d at 329. The Supreme Court held that this clause created a life estate withan unlimited power of disposition. Consequently, pursuant to Tenn. Code Ann. § 66-1-106 as it then existed, the l

ife tenant’s sa

le of the property terminated the remainder interest, and the remaindermen

had no inte

rest in the pro perty sold or in the proceeds of the sale. See Hobbs v. Wilson , 614 S.W.2d at 330-31.

Mr. Crockett’s will ga

ve Ms. Crockett

a life estate in all of his real and personal property and provided as follow

s: [Ms. Crockett has the] power to sell, mortgage, use or consume such property, for her needs in h er sole and absolu

te discretion. At th e death of my said wife, I give, w ill, d evise and bequeath all of the remainder

of said property, both real and personal, which has not been disposed of by my said wife, to my sister, Mrs. Rut h Crocket t Claiborne, and my mieces [sic] and nephews . . .. 14

This language is similar in form to, and the same in substance as, that of the will at issue in Hobbs
v. Wilson. The parties have agreed througho

ut this proceeding

that the will

gave Ms. Crockett

a life estate with an unlimited pow

er of disposition. M

s. Crockett sold the

farm, andremaindermen do not argue on this appeal that Ms. Crockett did not also dispose of the personal property subject to the life estate. Under

the version of

Tenn. Code Ann. § 66

-1-106 existing wh

en Mr. Crockett die

d in 1963, Ms. Crockett’s sale of the property terminated the remaindermen’s interest in the Croc ket t farm and thus,

the remaindermen’s interest did not transfer to the p

roceeds of the sa

le of the farm.

II. U NDUE I NFLUENCE AND C APACITY
The remaindermen assert that the trial court erred by failing to inval idate Ms. Crockett’s conveyanceof the farm to the I ngrams on the grou

nds th at Ms. Rambo unduly influence d Ms. Crockett or that Ms. Crockett was incompetent at the time of the sale. After carefully reviewing the record, we have determined that the trial court did not err.

A. M S . C ROCKETT ’ S M ENTAL C APACITY TO C ONVEY-10-

Bothsides presented lay and expert testimony regarding Ms. Crockett’s men

tal capacity

to sell the Crockett farm in 1 993. After hear ing this conflicting

testimony, the tria

l court found that M

s. Crockett was mentally

competent to sell the farm. The remaindermen now assert that the evidence does not support the trial court’s finding. We disagree.

A deed is valid only

if it is the product of the grantor’s conscious, voluntary act. Thus, a deedis void if, at the time of its executi on, the grantor wa

s mentally

unbalanced, without intelligent comprehensionof the act

being performed, and incapable of transacting. See Bright v. Bright , 729 S.W.2d 106, 1 09 (Tenn. Ct. App. 1986); Brown v. Weik , 725 S.W.2d 938, 944 (Tenn. Ct. App. 1983); Hinton v. Robins on , 51 Tenn. A pp. 1, 9, 364 S.W.2d 9 7, 100 (1962). A pa

rty seeking to rescinda conveyance because of mental incapaci ty h as the burden of proof. See Williamson v. Upchurch , 768 S.W.2d 265, 269 (Tenn. Ct. App. 1988).

Because the trial court he

ard this case with

out a jury, we review its findings of fact de novo upon the record with a

presumption of cor

rectness. Unless the evidence preponderates against the findings, we must affirm

absent error of law. See Tenn. R. App. P. 13(d ); Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996); Knight v. Lancaster , 988 S.W.2d 172, 174 (Tenn. Ct. App. 1998). The trial court

is uniquely positioned to observe the manner and demeanor of witnesses, and
so appellate courts accord particular deference to trial court findings that depend upon weighing the value or credibility of competing oral testimony. See Long v. Tri-Con Indus., Ltd. , 996 S.W.2d 173, 178 (Tenn. 1999); Doe A v. Coffee C ounty Bd. of

Educ. , 925 S.W.2d 534, 537 (Tenn. Ct. App. 1996); St. Clair v. Evans , 857 S.W.2d 49, 51 (Tenn. Ct. App. 1993). Expert and lay witnesses gave conflicting accounts of Ms. Crockett’s competence when she sold the Crockett farm in February 1993. Two expert witnesses testified. Dr. Tim Nash examined Ms. Crockett on January 26, 1993, and found her com petent to manage h

er affairs, tho

ugh mildly forgetful. Dr. Pamela Auble examined Ms. Crockett on Jan

uary 26, 1994, almo

st a year after

Ms. Crockett conveyed the Crockett farm. Dr. Auble testified that Ms. Crockett suffered from longstanding dementia and that people with dementia do not have lucid periods.

Several lay witnesses also testified regarding Ms. Crockett’s competence. Three witnesses stated that Ms. Crockett was mentally competen t when she sold the farm. Peggy Whitsett, the manager of the assisted living facility where Ms. Crockett lived from 1991 until her death, testified that Ms. Crockett was competent in 1993 w hen she sold the Crockett farm. Mr. Ingram, the copurchaser of the Crockett fa

rm, testified that a realtor questioned Ms. Crockett at length on the day of the sale and ascertained that Ms. Crockett understood she was selling the Crockett farm. John C. Leonard, Ms. Crocket t’s guardi an ad litem who visited her several times during 1993 and 1994, testified that Ms. Crockett was old but not senile. At the same time, two other lay witnesses testified that Ms. Crockett was not competent. Alta Garrett, Mr. Crockett’s sister, testified that Ms. Crockett
was not competent whe

n she sold the Crock

ett farm. Likewise, Louise Garrett, Mr. Crockett’s niece who saw Ms. Crockett r

egularly until Ms. Cr

ockett moved into

the assisted living facility, testified that Ms. Crockett was not competent.15 Presumably, Mr. Ingram would p refer not to see

the conveyance

of the Crockett

farm set aside.
-11- We are reluctant to use the paper record to second-guess the trial court’s determination of the relative value of this conf licting testi

mon y. We note, however, that two of the lay witnesses who testified that Ms. Crockett was competent have no obvious stake in the outcome of this litigation. 15 The evidence does not preponderate against the trial court’s finding that Ms. Crockett was competent to sell the Crockett farm.

B. U NDUE I NFLUENCE BY M S . R AMBO
The remaindermen also assert that the sale of the Crockett farm should be set aside because Ms. Rambo exerte

d undue influence on Ms. Crockett’s decision. The remaindermen have intro duce d sufficient evidence of a confidential relationship and other suspicious circumstances to shift the burden to Ms. Rambo to prove that the transaction was fair. We have determined that the evidence supports the tri al court’ s determination that Ms. Rambo presented clear and convincing evidence that the sale of the Cro

ckett farm was f

air to Ms. Crockett

. While undue influence can be proved either by direct or circumstantial evidence, see In re Depriest's Estate , 733 S.W.2d 74, 78 (Tenn. Ct. App. 1986) (direct evidence); Patton v. Allison , 26 Tenn. (7 Humph.) 320, 333 (1846) (circumstantial evidence), direct evidence is rarely available. Hager v. Hager , 17 Tenn. App. 143, 161 , 66 S.W.2d 250, 260 ( 1933). Thus, in most c ases, those attacking a conveyance o r will on the ground

s o f undue influence must prove the existence of suspicious circumstances warrantingthe conclusion tha t the person alleg

edly influenced did not act freely and independently. See Taliaferro v. Green , 622 S.W.2d 829, 835-36 (Tenn. Ct. App. 1981), overruled on other grounds by Matlock v. Simpson , 902 S.W.2d 384, 386 (Tenn. 1995).

The suspicious circum

stances most freq

uently relied upon

to establish undue influenceare: (1) the existence of a confidential relationship between the testator and the be neficia ry; (2) the testator's physical or mental deterioration; (3) the beneficiary'sactive involvement in procuring the will or conveyance. See In re Elam's E state , 738 S.W.2d 169, 173 (Tenn. 198 7); Kelly v. Allen , 558 S.W.2d 845, 848 (Te

nn. 1977); Taliaferro v. Green , 622 S.W.2d at 835-36.

The existence of a c

onfidential rela

tionship, such as an

unrestricted pow

er of att or ney, combine d with a transaction benefitting the dominant party, creates a presumption of undue influence. See Matlock v. Simpson , 902 S.W.2d at 386; Johnson v. Craycr aft , 914 S.W.2d 506, 510 (Tenn. Ct. App. 1995); Pet ty v. Privette , 818 S.W.2d 743, 747 (Tenn. Ct. App. 1989). The presumption of undue influenc e is rebuttable

by clear and convincing evidence of the fairness of the transaction. See Matlock

v. Simpson , 902 S.W.2d at 386; Hager v. Fitzgeral d , 934 S.W.2d 668, 671 (Tenn. Ct. App. 199 6); Bills v. Lindsay , 909 S.W.2d 434, 440-41 (Tenn. Ct. App. 1993).16 Of course, for the purposes of this discussion, it is irrelevant whether the transaction was “fair” to the remaindermen.

17 The Ingrams paid $311,292 for the Crockett farm. James Donald Turner, an appraiser for the remaindermen, valued the Crockett farm at $378,000. However, he admitted that he only drove by the farm and that the price received was within a reasonable negotiating realm in view of the fact that no real estate agent was involved, and that the home was deteriorating.
-12- Although proving that the subservient party had independent adviceis one way of showing the fairness of

the transaction, see Matlock v. Simpson , 902 S.W.2d at 386; Richmond v. Christian , 555 S.W.2d 105, 107-08 ( Tenn. 1977), it i s not the only w ay. See Williamson v. Upchurch , 768 S.W.2d at 270-71; Killian v. Campbell , 760 S.W.2d 218, 221 (Tenn. Ct. App. 1988). Courts require evidence of independent advice onl y where it would be difficult to show the fairness of the transaction without it. See Depriest ’s Estate , 733 S.W.2d at 79. This typically arises when the transaction under scrutiny is a gift from a feeble or incompetent subservient party to the dominant party, and the gift leaves the donor impoverished. See Richmond v. Christian , 555 S.W.2d at 108; Walshv. Brown , 703 S.W.2d 158, 163 (Tenn. Ct. App. 1985); Simmons v. Foster , 622 S.W.2d 838, 840-41 (Tenn. Ct. App. 1981).

Ms. Rambo was Ms. Crockett’s attorney-in-fact and the primary residual beneficiary under her will. Ms. Rambo stood to gain f rom Ms. Crockett’s

decision to sell

the Crockett far

m because the sale defeated t

he interest of the

remaindermen in

the property, the

reby increasing

the size of Ms. Crockett’s estate. Any incr eases in the size

of Ms. Crockett’s estate thus increased the si ze of Ms. Rambo’s share of the estate. Accordingly, a presumption arises that Ms. Rambo unduly influenced Ms. Crockett to sell

the Crockett

farm. To rebut this presumption, Ms. Rambo had to present clear andconvincing evidence of the fairness of the tra nsa ction. Nevertheless, because the sale of the Crockett farm was a gift to Ms. Rambo onl y in the looses t sense, and cer tainly did not leave

Ms. Crockett impoverished, it is notnecessary to show that Ms. Crockett received independent advice.

From the evidence in the record, we find that Ms. Rambo has met

her burden of proving by clear and convincing evidence that the transaction was f

air to Ms. Crockett 16 and that the decision to sell t he farm was Ms. Crockett’s free and unconstrained choice. The Ingrams initiated contact withMs. Rambo to make an offer on the Crockett farm because it was adjacent to their own, not because of any associatio

n with Ms. Rambo. At first, Ms. Rambo to ld the Ingrams tha

t the Crockett farm was not for sale, and only informed Ms. Crockett of the o ffer after the Ingrams made

their secondor third overture. Ms. Crockett, rather than Ms. Rambo, signed the contract and t he deed. At closing, the real

estate agent questioned Ms. Crockett to ensure that she understood what she was do ing, and was satisfied that she did. Moreover, the purchase price was within a reason abl e negotiating range even according to the testimony of the r ema indermen’s expert appraiser. 17 Finally, andperhaps most important ly , Ms. Crockett’s decision to sell to the Ingrams made perfect sense. She lived in a retirement home, and her poor health precluded

her from ever liv

ing on the Crockett farm again. Selling the C

rockett farm would avoid waste and ensure that she had adequate fu

nds to continue to support herself in the future.18 Although the Restatement and a ll of these cases require interference with inheritance or gift

through independently “to rtious” conduct,

Restatement (Second) of Torts § 774B cmt. c, t

he same
cases list undue influenc

e as an example

of the requisite

conduct. Because undue influence is not
a tort , it may be more helpful to refer to this requirement as interference through indepe ndentl y wrongful conduct.

19 See Davison v. Feuer

herd , 391 So.2d 799, 799 (Fla. Dist. Ct. App. 1980); Allen v. Leybourne , 190 So.2d 825, 828-2 9 (Fla. Dist. Ct. App.

1966); In re Estate of Roeseler , 679 N.E.2d 393, 406 (Ill. App. Ct. 1997); Nemeth v. Banhalmi , 425 N.E.2d at 1190 -91; Minton v. Sackett, 671 N.E.2d 160, 162 (Ind. Ct. App. 1996); Huffey v. Lea , 491 N.W.2d 518, 520 (I owa 1992); Frohwein
v. Haesemeyer , 264 N.W.2d 792, 795 (Iowa 1978); Morrill v. Morrill , 712 A.2d at 1041-4

2; Cyr v. Cot e , 396 A.2d 1013, 1018 ( Me. 1979); Graham v. Manche , 974 S.W.2d 580, 583 (Mo. C t. App

. 1998); Hammons v. Eisert , 745 S.W.2d 253, 257-58 (Mo. Ct. App. 1988); Doughty v. Morris , 871 P.2d 383; Firestone v. Galbr eath , 616 N.E.2d 202, 203 (Ohio 1993); Brandes v. Rice Trust, Inc. , 966 S.W.2d 144, 146 (Tex. App. 1998); King v. Acker , 725 S.W.2d 750, 754 (Tex. App. 198 7); Kessel
v. Leavitt , 511 S.E.2d 720, 763 ( W. Va. 1998); Barone v. Barone , 294 S.E.2d 260, 264 (W. Va. (continued...)
-13- III. I NTENTIONAL I NTERFERENCE WIT H I NHERITANCE OR G IFT
The remaindermen request us to use this case as a vehicle for recognizing the tort of intentional interference

with inheritance or gift and to find that Ms. Rambo committed this tort by depriving them of their remainder interest. We affirm the trial court’s finding that the facts of this
case do not satisfy the elements of the tort of intentional inte rference with inheritance or gift and, accordingly, decline to determine whether Tennessee should recognize this cause of action.

The Restatement (Second) of Torts defines intentional interference with inheritance or gift
as follows: “[o]ne who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” Restatement (Second ) of Torts § 774B (1977). In light of the decisions in jurisdictions adopting t his to rt, a plaintiff seeking to recover damages for

intentionally preventing another from receiving an inheritance must prove (1) that he
or she has a legitimate expectation of receiving the inheritance; (2) that the defendant intent

ionally interfered with that expectancy; (3) that the interference involved “tortious” conduct, such as fraud, duress, or undue influence; (4) that it is reasonably certain that, but for the defendant’s interference, the plaintiff would have realized the expectancy; and (5) that the de fendant’s i

nterference caused damage to the plaintiff. See, e.g., Nemeth v. Banhalmi , 425 N.E.2d 1187, 1191 (Ill. App. Ct. 1981); Morrill v. Morrill , 712 A.2d 1039, 1042 (Me. 1998); Geduldig v. Posner , 743 A.2d 247, 255 (Md. Ct. Spec. App. 1999); Doughty v. Morris , 871 P.2d 380, 384 (N.M. Ct. App. 1994); Firestone v. Galbreath , 616 N.E.2d 202, 203 (Ohio 1993) ; Harris v. Kritzik , 480 N.W.2d 514, 517 (Wis. Ct. App. 1992). 18

So far, at least eleven jurisdictions have expressly adopted the tort of intentional interference withinheritance or gift . 19 Five jurisdictions a ppear to have impl

icitly adopted the

tort, or expressl

y19 (...continued)

1982); Harris v. Kritzik

, 480 N.W.2d at 517.

2 0 See Mitchell v. Langley, 85 S.E. 1050, 1051 (Ga. 1915) (holding that a ca use of action existed when a defendant fraudulently induced the deceased du

ring his lifetime

to remove plaintiffs
as beneficiaries

of a benefit

certificate

payable at death) cited in Morgan v. Morgan , 347 S.E.2d 595, 596 (Ga. 1986); Labonte v. Giordano , 687 N.E.2d 1253, 1254-56 (Mass. 1997) (holding that an action for tortious interference with expectancy o f rece iving a legacy cannot be maintained until after death of testatrix but, because testat rix had died during pe

ndency of appea

l, remanding to per

mit plaintiff to amend complaint); Monach v. Koslowski , 78 N.E.2d 4, 6 (Mass. 1948) (recognizing that prior Massachusetts ca

se law implies that a

tort action exists f

or wrongful inter

ference with

a devise, legacy or gift); Griffinv. Baucom , 328 S.E.2d 38, 41-42 (N.C. Ct. App. 1985) (holding that although only the statutory reme

dy of a will contest

is available when

a will is submitted fo

r probate, if no w

ill is submitted, an action for tortious interference with inheritance is permitted); Allen v. Hall, 974 P.2d 199, 202 (Or. 1999) (refusing to reach the question of whether Oregon recognizes the tort of intenti onal inter ference with inheritance because, under Oregon law, such interfer ence “may be actionab le under a reasonable ext ension of the well-established tort known as intentional interference with economic relations.”).

21 See, e.g., Holt

v. First Nat’l Bank o

f Mobile , 418 So.2d 77, 80 (Ala. 1982) (holding that the plaintiffs had not al leged facts brin ging them within the p

roposed cause of

action); Dunham v. Dunham , 528 A.2d 1123, 1130-31 (Conn. 1987) (affirming trial court’s decision to recast claims for breach of fiduciary duty and tortious interference with inheritance as legal malpractice claim); Troy
v. Folger , No. CV 970161947S, 1998 WL 252355, at *2 (Conn. Super. Ct. Ma y 8, 1998) (mem.) (re fu sing to reach the issue of “interference with prospective advantage” in inheritance context because not adequately br

iefed); Casternovia v. Caste rnovia , 197 A.2d 406, 40 9 (N.J. Super. Ct. App. Div. 1964) (holding that action for interference with inheritance or gift could not be maintained because potential donor

was alive and com

petent); Douglass ex rel. Louthian v. Boyce , 519 S.E.2d 802, 807 (S.C. Ct. A pp. 1999) (noting that South Carolina has never recognized claims for interference

with inheritance rights and, on the f acts presented,

such a claim could

not succeed in any event).

22 See, e.g ., Ax e v. Wilson , 96 P.2d 880, 885-88 (Kan. 1939) (in action for malicious interference

withright of

inheritance through fraud and undue influence that did not seek damages beyondwhat

the plaintiff

would receive in a successful will contest, held that plaintiff's remedy lay in then pending actio

n to contest the will

); Geduldig v. Posner , 743 A.2d at 257 (de clining to recognizetortious interference with inheritance where it was “duplicative of the independent

claims basedon fraud and undue influence, except for the dama ge claim [emotiona l distress, harm to reput ation, and punitive damag es] that would con

stitute an expansi

on of existing law”

); Hauck v

. (continued...)
-14- adopted a version of

it. 20 In most of the remaining jurisdictions, courts have not decided whether to adopt the tort for one of three reasons: (1) the issue has not yet arisen; (2) the facts presented did not support a cause of action for interference with inheritance or gift; 21 or (3) existing law already provided the plaintiff with an adequate remedy. 2222 (...continued)

Seright , 964 P.2d 749, 753 (Mont. 1998) (refusing to address whether Montana recognizes tortious interference

with inheritance as a cause of action because the evidence did not supportsuch a claim in one instance and, in the others, the plaintiff failed to show how the new tort would produce a different result than existing law on undue influence).

23 Ms. Little and Ms. Kirkham Bowers did not intervene a plaintiffs until April 1998.
-15- We decline to use this case to determine whether T ennessee shou ld adopt the tort of interference

with inheritance or gift. On the facts presented, two key elements of the tort are missing. First, Ms. Rambo engaged in no independentl

y wrongful conduc

t that caused Ms. Cr

ockett to terminate the interest of the remaindermen. As we have already determined, Ms. Rambo did not unduly influence

Ms. Crockett to sell

the Crockett far

m. Second, the record contains no evidence that Ms. Rambo intentiona

lly interfered with the remaindermen’s inheritance. There is no indication that Ms. Rambo knew of the pertinent provisions in Mr. Crocke tt’s will or of their legal ramifications.

Even if Ms. Rambo saw or heard about the provision and cons

ulted counsel, it wo

uld be difficult to predict the sequence of events that subsequently unfolded, culminating in this court’s reversal of the trial court’s holding regarding whether the 1932 or the 1981 version of Tenn. Code Ann. § 66-1-106 would apply. Without such far-sighted legal expertise, Ms. Rambo could not have known that the sale of the Crockett farm would defeat the

remaindermen’ s interest in the fa rm itself or in the proceeds of the farm’s sale.

IV.

T HE F EE A WARD TO THE R EMAINDERMEN ’ S F ORMER L AWYER
The remaindermen take issue with the trial court’s decision to award their former lawyer $8,750 for the services he provide d before they discharged him. They assert that the lawyer contracted

for and attempte

d to collect a cle

arlyexcessive fee in violation of Tenn. S. Ct. R. 8, DR 2-106(A) and therefore that the law yer i s not entitled to any fee. We concur with the trial court’s conclusion that the remaindermen’s former lawyer is entitled to a quantum meruit recovery for the value of the serv

ices he provided

before the rema

indermen dischar

ged him.
A.

At the outset

of this case, Messes. Fell and Bowland 23 retained John Rey nolds and Kevin

S. Key to represent them. On June 4, 1994, Mr. Key sent Messes. Fell and Bowland an engagement letter confirming the fee arrangement. According to the engagement letter, thelawyers were to first research the language of Mr. Crockett’s will for a fee of not less than $750, nor more than $1,500. If the case went to litigation, Messes. Fell and Bowland agreed to pay “an additional fee of $10,000, plus one-third ( a ) of all sums recovered.” The $10,000 “minimum fee for litigation” wa

s payable in two installments of $5,000 each, and theinitial research fee would be credited to the $10,000 fee. Finally, despite its earlier statement suggesting the contrary, the letter specified that the $10,000 fee would be credited to any contingency fee.24 Mr. Key continued to represent Messe

s. Felland Bowland, but at an hourly rate rather than on a contingency b

asis.

25 The $8,750 fee is the p roduct of the minimum number of hours Mr. Reynolds estimated he worked (75) and his normal fee per hour ($150)minus the $2,500 that Mr. Reynolds had already received.
-16- Messes. Fell and Bowland accepted these terms and paid Messrs. Reynolds and Key th e first $5,000 installment on the $10,000 minimum fee. Messrs. Reynolds and Key each received $2,500 of this installment. For over a year, Messrs. Reynolds and Key together represented Messes. Fell
a nd Bowland. Among othe r things, Mr. Reynol

ds researched

and drafted the c

ompla int an d summons, prepared inter

rogatories and r

equests for produ

ction of documents , drafted a motion to compel a response to interrogatories, reviewed the response to interrogator i es and requests for production of documents, and researched and drafted a response to Ms. Rambo’s motion for summary judgment. Mr. Reynold’s response to Ms. Rambo’s motion for summary judgment was successful. On July 28, 1995, the trial court entered a memorandum

opinion denying the motion, andexpressing its bel

ief that the rema

indermen named in

Mr. Crockett’s wil

l are entitled to the net proceeds of the

sale of the Crock

ett farm.

Just over a month after the trial court ruled in their favor, Messes. Fell and Bow land wrote to Mr. Reynolds termin

atin g his ser vices and seeking an “unconditional release from our prior contingency agreement.” Me sses. Fell and Bowla

nd als o r equested an accounting of Mr. Reynolds’s time to enable them to pay him on anhourly basis. 24 Mr. Reynolds responded with a letter in which he refused to release Messes. Fell and Bowland from the contingency agree ment but agre ed to prepare, at his c

onvenience, a st

atement of his time

and services.

On Septe mber 21, 1 995, Mr. Reynolds filed a notice of attorney’s lien. In July, 1998, the trial court heard Mr. Reynolds’s motion to set attorney’s fees. At that time, Mr. Reynolds submitted
an affidavit concerning his fees, copies of the documents he researched, drafted or reviewed, and a listof t he work he performed. Mr. Reynolds also testified that he had not maintaine d contemporaneous time records because the engagement lette

r provided that he

would be paid on a contingency basis. Nevertheless, he estimated that he spent between seventy-five and one hundred hours on the case. Mr. Reynolds also testified that his normal rate was $150 per hour and that he considered this to be the average rate in Nashville at the time.

The trial court ruled from the bench that “this is not an appropri ate case for a contingency fee.” The court did not find, however, that the contingency fee arrangement was clearly excessive in violation of ethical standards. Instead, the trial court determined that Mr. Reynolds was entitled to payment for his services on a q ua ntum meruit basis. The court accepted Mr. Reynolds’s more conservative es

timate of his time, se

venty-five hours , and awarded hi m $8,750 in legal fe

es. 25

B. The relationship between a client and a lawyer is essentially contractual. See Alexander v. Inman , 974 S.W.2d 689, 694 (Tenn. 1998); In re Ellis , 822 S.W.2d 602, 607 (Tenn. Ct. App. 1991).26 The husband was entitled to $349,000. The attorney’s fee would have been one-third of (continued...)
-17- In its most basic terms, this contract involves the exchangeof competent legal services in return for
an agreement to pay a reasonable fee. The lawyer is obligate

d to exercise the utm

ost good faith in the discharge of his or her duties to represent the client. See Crawford v. Logan , 656 S.W.2d 360, 364 (Tenn. 1983); Fitch v. Midland Bank & Trust Co. , 737 S.W.2d 785, 789 (Tenn. Ct. App. 1987). A lawyer who discharges his or her duties appropriately is entitled to the reasonable, agreed-upon compensation without regard to the actual benefit the services might have been to the client. See Spofford v. Rose , 145 T enn. 583, 61 1, 237 S.W. 68, 76 (19 22); Bills v. Polk

, 72 Tenn. 494, 496 (1880); Adams v. Mellen , 618 S.W.2d 485, 488 (Tenn. Ct. App. 1981).

The courts may decline to enforce an attorney's fee contract only (1) when the lawyer

did not negotiate the contract in good faith, see Alexander v. Inman , 974 S.W.2d at 693-94; (2) when the contract contains a provisi

on repugnant to pub

lic policy, such as anunreasonable fee agreement, see White v. McBride , 937 S.W.2d 796, 800-03 (Tenn. 1996); or (3 ) when the la wyer has otherw

ise breached his or herfiduciary obligations to the client, and this breach has prejudiced the client's interests. See Crawford v. Logan , 656 S.W.2d at 3 65; Alexander v. Inman , 903 S.W.2d 686, 694 (Tenn. Ct. App. 1995); Coleman v. Moody , 52 Tenn. App. 138 , 155, 372 S .W.2d 306, 311-314 (1963).

If a fee contract is unenforceable because of an innocent drafting er ror, the courts may award the lawyer a quantum meruit recovery. See White v. McBride , 937 S.W.2d at 803. If, however, a lawyer violates Tenn. S.

Ct. R. 8, DR 2-106(A) by contracting for, charging, or attempting to collect
a clearly excessive fee, the lawyer may not collect any fee – even a fee

that would be reasonable for the work actually performed. See Swafford v. Har ris , 967 S.W.2d 319, 324 (Tenn. 1998); White v. McBride , 937 S.W.2d at 803. A fee is clearly excessive if, “after a review of the facts, a lawyer of ordinary prudence would b e left with a defi

nite and firm conv

iction that the fee

is i n excess of a reasonable

fee.” Tenn. S. Ct. R. 8, DR2-106(B); In re Davis’s Esta te , 719 S.W.2d 526, 528 (Tenn. Ct. App. 1986).

Tenn. S. Ct. R. 8, DR 2-106(B) lists eight factors for determining the reasonablenes s of a lawyer’s fee. The appellate courts have consistently applied these factors wh

en asked to

review a trial court’s fee award. See Connors v. Connors , 594 S.W.2d 672, 676-77 (Tenn. 198 0); Alexander
v. Inman , 903 S.W.2d at 69 5 . The reasonableness of a requested fee depends on the facts of eac h
case. See Alexander v. Inman , 903 S.W.2d at 695; Hail v. Nashville Trust Co. , 31 Tenn. App. 39, 51, 212 S.W .2d 51, 56 (1948). Accordingly, appellate courts review a trial court’s decision regarding attorney’s f

ees using the abuse of discretion standard. See McCarty v. M cCarty , 863 S.W.2d 716, 722 (Tenn. Ct. App.1992).

The White v. McBride dec ision, r elied on so heavily by the remainder

men, is only superficially

similar to the case at bar. That case involved a one-third conting

ency fee agre

ement, butthe similarities between that case and the present one end there. The lawyer in White v. McBride undertook

to represent the husband of the deceased in an uncontested probate proceedings in which there was ne ver a doubt thatthe husband would recover one-third of the estate. 26 See White v.26 (...continued)

this amount. See White v. McBride , 937 S.W.2d at 799.

27 It is wor th mentioning, though , that the trial cou

rt appointed an ad

ministrator ad lite

m, ordered an accounting, gave the remaindermen access to estate records and ac counts and to the personal bank a ccount records of Ms. Rambo, and specifically found that Ms. Rambo did not (continued...)
-18- McBride , 937 S.W.2d a t 799 . In contrast, when Messrs. Reynolds and Key agreed to represent Messes. Fell and Bowland on a contingency basis, they faced a vigorously contested case involving extensive discovery, a novel question of law, and a very real possibility that Messes. Fell and Bowland wou ld not recover at all. In White v. McBride , the trial court found the contingency fe e arrangement

was clearly excessive; however in this case, the trial court implicitly found that the fee contract was not clearly excessive becau se it deter mined that Mr. Reynolds was entitled to a quantum meruit fee award.

The fee awarded by the trial court reflects a conservative estimate of

the time Mr. Reynolds spent on behalf of Messe

s. Felland Bowland. Mr. Reynolds represented Messes. Fell and Bowland for over a year in this matter. Although he did not keep detailed records of his time, Mr. Reynolds providedth e trial court with a detailed list of the

tasks he perform

ed and copies of t

he documents he researched, drafted, and reviewed. In unrefuted testimony, Mr. Reynolds estimated that he spent seventy-five to one hundred hours on the case and that his normal fee was $150 per hour. The trial court erred on the side of caution by choosingseventy-five hou rs, Mr. Reynolds’ lo

west estimate of his billable time, and credited Messes. Fell and Bowland with the$2,500 they had already paid Mr. Reynolds. We have independently reviewed Mr. Reynolds’s request for fees in light of the factors containedin Tenn. S. Ct. R. 8, DR 2-106(B) and find n o basis to s econd-guess the trial court’s decision. Accordingly, we affirm the trial court’s decision to award Mr. Reynolds $8,750 in legal fees.

V.

T HE R EMOVAL OF M S . R AMBO AS E XECUTR IX
As a final matter, the remaindermen assert that the trial court erred by f ailing to replace

Ms. Rambo as executrix and by failing to require Ms. Rambo to provide a more complete accounting of the estate. They also

assert that the tr

ial court should ha

ve required Ms. Ra

mbo to provide a

more complete accounting of interest on the certificates of deposit that the trial court had awarded them. Because our determination

that the remainde

rmen do not have a

n interest in

the proceeds from the sale of the Crockett farm affects all of these issues, we will deal with them together.

The remaindermen a

re not beneficia

ries under Ms. Cro

ckett’s will

anddo not stand to inher

it from Ms. Crockett if she were intestate. Their only standing to maintain this action derives from their claimed interest

in the farm or in

the proceeds from its sale. We have determined

that the sale of the farm terminated the remainder interest of the remaindermen. Accordingly, the remaindermen
no longer have an interest in Ms. Crockett’s estate. Accordingly, they have no standing to challenge Ms. Rambo as executr

ix of Ms. Crockett’s estate or to demand an accounting of the estate’s asse

ts. 2727 (...continued)

misappropriate a

ny of the est

ate’s funds.
-19- In addition, our reversal of the trial court’s $269,420.89 to the remaindermen renders moot any issue regarding how much interest on that award the remaindermen should receive.

VI.

We reverse

the portion of the judgment awarding $269,420.89 to Madge Kirkham Fe ll, Betty Kirkham Bowland, Debbie

Little, and Bernice Kirkham Bowers and affirm the remaining portions of the judgment. We remand the case to the trial court for further proceedings reg arding the remaindermen’s Tenn. R. Civ. P. 60.02 motion and any other appropriate matter. We also tax the costs of this appeal to Madge Kirkham Fell, Betty Kirkham Bowland, Debbie Little, and Bernice Kirkham Bowers and their surety for which execution, if necessary, may issue.