### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 8, 2003 Session IN RE: THE ESTATE

OF LOWELL FRAZ IER Appeal from the C hancery Court for Cam pbell County No. P- 1847 Billy J oe White , Chanc ellor FILED A UGUST27, 2003 No. E2002-0 1203-COA-R3 -CV

This appeal concerns two s eparate s uits filed in the Chan

cery Court for

Campbell Co

unty in connection with the a

dministra tion of the

Estate of Lowe ll Frazie r. The fi r st suit w as brought by Sam Loug

h, individu ally , and also , along with his wife, Debbie Lough, a s parents and guardians of Matthew Lough, and D arry l H erron and Elizabeth Herron, as parents and g uardians of Chelsea Herron. It sou ght to es tablish a l ost or spoi lated will of Mr. Frazier, which was dated January 30, 1998 (“the f

irst will” ). The se cond suit was br ought by Matthe w Lough and Chelsea Herron by and throu gh their guardian ad litem , appointed in the first case, contesting a later will dated May 24, 2000 (“the second will”). The cases wer e consolidated below and the suit seeking to establish the first will was tried first. Under an agreement of the parties, the fir st case must be decided in favor of the minorsbefore

they would hav e standin g to contest the second will. After a plenary

trial a jury found as to the f

irst case that the Pla

intiffs pr oved by cle ar and con vincing

evidenc e that L

owell Frazier did not destroy the first will. Thereupon, the second trial wa s h ad be fo re th e s am e j ur y, which found agains t the sec ond will on the ground that dueex ec ut io n w as no t p ro ve d a nd th at Gl en da Fa ye Smith, who was the sole beneficiary of the second will, and at the time it wa s e xe cu te d w as at to rn eyin-fact for Mr. Frazier, did not overcome the pr esumption of undue influence over Mr. Frazier by clear and convincing e

vidence . Ms. Smith

raises a number of

issues, ma

ny o f which me

rit a critical examination, but our review of the record

persuades us that the issue which contends that she was entitled to adire cted

verd ict in the f irst c ase i s the d

ispos itive issue in thi s app eal. We find that the Courtwas in er

ror in not directing a ver

dict in he r favor in the lost will case and reverse the judgment rendered therein. This results in the Plaintiffs not having standing to pursue the second case, w hich is reversed and dismissed. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Ch ancery C ourt Reversed, Sui t Dismissed, and Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., and D. M ICHAEL S WINEY , JJ., joined. Dudley W. Tay

lor, Knoxville, Tennessee, for the Appellant, Glenda Fay e Smith. Johnny V. Dunaway , LaFollette, Tennessee, Guardian Ad Litem, for the Appellees, Matthew Lough and Chelsea Herron.-2- OPINION

Our standard of review of a jury verd ict is well settled. I

t was add ressed b y th

e Supreme Court in a 1 994 opinion

as follow s: Rule 13(d) of the Tennessee Rules of Appellate Proce dure pro vides that "[f] indi ngs of fa ct by a ju ry in civil actions shall be set aside only if ther e is no material evidence to support the verdict." As this Court stated in the recent case of Hodges v. S. C. Toof & Co. , "It is well established t h at whe n revi ewing a judgment based on a jury

verdict, appellate courts are limited to det ermining whether there is material evidence to s upport the verdict." 833 S.W.2d [896,] 898 [(Tenn. 1992].
It is the time honored rule in this State that in reviewing a judgment based upon a jury ver

dict the app ellate

courts are not at liberty to weigh the evidence or to decide where the pre ponderance lies, but a

re limited to determining whether thereis material evidence to support the verdict; and in determining whether there is material evide nce to support the verdict , the appella te court is required to take the strongest legitimate view of al l th e evidence in favor

of the ve

rdict, to a ssume the

truth of a

ll that ten ds t o support it, allowing

all reasona

ble infe rencesto sustain t

he verdi ct, and to discardall to the contrary . Having thus examinedthe record, if there be any material evidenc e to suppor t the ver dict, it must be aff

irmed; if it were otherwise, the part

ies would be deprived of their constitutional right to trial by j ur y. Crabtree Masonry Co. v. C. & R. Constr., Inc ., 575 S.W.2d 4, 5 (Tenn. 1978).
Forreste r v. Stock

still , 869 S.W.2d 328, 329-30 (Tenn. 1994).
Alth ough not alleged, it was the theory of the Plaintiffs as to the first case that Ms. Smith and J. Stanley Hurst, the attorney who initially represente d her in the cases on appea l, as well as other civil and criminal matters, conspire d to destr oy t he first will.
The Guardian Ad Litem for the minor children, in the opening arg ument, stated the follo wing:1 Mr. Hurst was the owner of a BMW automobil e.

-3- MR. DUNAWAY: There’s one other thing, ladies and gentlemen. She’s committing the robbery . Mr. Hurst is driving the getaway car, and the evidence will show that as we get into the proof. During the cour se of the

trial he r eferr ed to Ms. Smith and Mr. Hurst as Bonni e and Clyde an d, fi na ll y, i n h is cl os in g a rg um en t s ai d t o t he ju ry:

Now, I’ll take y

ou back to where we were a t the very beg

inning of this case where y ou can wr ite the re sult. I

submit to you donot let Glenda Smith rob this e state . Don ’t put

gas in the

get away car; disma

ntle t he BM W. 1

In our review of the evidence we deem pertinent we will endeavor to follow the standard of review h ereinbe fore se t out.
The record in the cons olidated cases is voluminous . The tra nscript a s to the fir st case consisted of 1183 pages, and the sec ond case 208 pag es. We will , howeve r, only detail the

facts adduced in the first case, which are g ermane to our resolution of this appeal.
Lowe ll F razierwas married to Christine Frazier, who died in April 1996. They had no children. Thereafter, on January 30, 1998, Mr. Frazier executed the first will naming as beneficiaries his wife’s nephew, Mr. Lough, Mr. Lough’s y oung son, and

Chelsea Herron. The L

ough family ha

d a close relationship with Mr. Frazier until a rift occurred in the fall of 19 99 beca

use of Mrs. Herron’s use of a vehicle owned by Mr. Frazier and the family had little or no contact with Mr. Frazier thereafter.
Chelsea Herron ’s pare

nts live n ear Mr. Frazier, and he had known he r since her birth and, as shown by

the proof , had an a ffectio n for her

during h is lifetime. There isnothing in the record to suggest why

the second will did not include her.
Ms. Smith met Mr. Frazier after the death of his wife, and there is not even a hint in the record that their relationship had any sexual connotation. Indeed, it was more as if they w ere father and daughter and Ms. Smith referre d to him as “ Dad.” I t should al so be note d that Ms. Sm ith minister e d to him during two illnesses, the first resulting from a hernia opera tion, and the second when he was hospitalized just prior to his death.2 The signature l ine on the second will denoted the si gnor as “Testatrix” rather than “Te stator,” and also

provided that

his r eal and personal property was “t o be divided equal ly ex cept as s tate d here in, ” when , as alr eady n oted, M s. Smith w as the so le ben eficiary un der this w ill.

3 The first will prepared by M r. Asbury was als o inartful ly drawn, in that, altho ugh p rovid ing spe cific beq uests of

inv est ments , i t di d not have a res iduary claus e which c ould pose a probl em should Mr. Frazi er have ch anged his investments

4 Mr. Hurst’ s repres entat ion in cluded th ree fel ony cases , res ult ing i n Ms. Smith’ s convic t ion . She, how ever, w as no t requir ed to serve a ny time in th e pen itentiary.

5 M s. Smith u sed the a uthori ty gr anted under the power of

att orney only on one occasi on, and that was to pay medical bills incurred by Mr. Frazier.
-4- On May 24, 2000, M

r. Frazi er execu

ted the second will w

hich, alt hough in artf

ully drawn , left his entire estate to Ms. Smith. 2 Robert Asbury, a L

aFollette attorney

who prepared

the first will, gavethe first will 3 to Mr. Frazier, but kept a copy

for his files. The first will was placed on the kitchen table at Mr. Fr azier’s residence and, later, in the family Bible. It wa s not found

in a searc h made by

Mr. L ough and Mrs. Herron shortly a

fter Mr. Frazier’s death.
Mr. Frazier

died on F

ebruar y 18 , 2001, and when the second w ill was att

empted to

b e probatedthe Clerk of the Probate Court advised that a suit had been filed seeking to set up the first will as a lost will and declined to issue letters of administration to Ms. Smith, the Executrix.
In the past M

r. Hurst h ad repr

esented Ms. Smith in several matters spanning a period of some 15 ye ars. 4 He prep ared a p ower of atto rn ey, 5 appointin g Ms. Smith Mr. Fra zier’s at torney in fact, which was sig ned on May 4, 2000. Ac cording to Mr. Hurst, this instrument was signed in the absence of Ms. Smi th . M s. Sm it h’ s t es ti mo ny i n r eg ar d t o t he po we r o f a tt or ne y is co nt ra di ct or y. In her discovery

deposition she stated she was present when the power of a ttorney was signed; in her testimonyat trial she stated she was not present; and finally stated she did not know whether she was present or not. Thereafter, the

second w ill, which

is under a

ttack in th is suit, was prepared for Mr. Frazier by

Mr. Hurst. Ms. Smith was not present on this occasion.
There is proof that both Mr. Hurst and Ms. Smith, together and separa te ly, visited the residence of Mr. Frazier on a number of occasions and on one occasion were observed

carry ing black trash bags out of the

house, loa

ding the m into a truck and carry

ing them away . A cardboard box was also removed by a

former female friend of Ms. Smith.6 An empty sh redding machi ne was al so found i n the r esidence

. 7 The defin iti on of “ki tin g warrant s” is not entirel y cle ar, but as we understand the record, it means the Tr ial Jud ge rem ove s warra nts from the do cket p rior to tria l.
-5- Mrs. Herron

also testi fied tha

t she saw M s. Smit

h carrying a

n object out of Mr. Frazier’s house. She could not identify what the object was, but stated it ap peared to be a “ pe wt er gr ay” statuette. Ms. Smith testified that at one time she carried a Coca-Cola bottle which wa s green colored and in the fashion of old-time Coca-Cola bottles.
Whic hever

version might be true, it is clear that the object was not the firs t will of Mr

. Frazier. There is also proof that no current recor ds, except for

perhaps two months, were found of Mr. Frazier’s financi al dealings. 6 As to this point, the proof shows tha

t the house

was brok en into sometime prior to the afternoon of March 5, 2001. The undisputed proof also shows that when Mr. Frazier was executing his second will Mr. Hur st advi sed him that he should destroy any prior wills, to which Mr. Frazier responded, “I ’ve already taken care of that.”
Although Mr. Hurst was cast as a co-conspirator, eve ry witness that testified on the subject– withthe possib le except ion of Rob A sbury , who pre pared th e first w ill and init

ially represented

the Plaintiffs in the consolidated cases–did not disparage Mr. Hurst’s re putation as an at to rn ey, nor cast doubt upon his veracity . Mr. Asbury, howe ver, testified he had

heard some rumors regarding Mr. Hurst “kiting warrants,” 7 presumably while he was a city judg e, but he did not have any problem “with Mr. Hurst’s candor.” He did have reservations rega rding Mr. Hurst’s reputation and conc eded it wa s m ost likely because of the pending suit to establish the lost will which he initiated.
In addition, there was introduced into the record excerpts from Mar t in dale and Hubbell, a publication th at rates lawy ers based upon interviews with other attorney s, and sometimes judges, that Mr. Hurst’s general ethical standar d was “very

high.”
Alth ough we are required, as here inbefore set out, to

accept as true a ll testimony

favora ble to the Plaintiff’s position and indulge all favorable inference s rising therefrom, there is anothe r rule of law that comes into play in disposing of the first suit.
This rule was articulated in the case of In re Estate of West , 729 S.W.2d 676 (Tenn. Ct. App. 1987), wherein we stated the following (at pa ge 678):-6- In order to

establish a lost will t

he propo nent of th at will must show (1) the fact that the will was executedin accordanc e with the forms of law, (2) the substance or contents of the will, and (3) that the will has not been revoked, and that it is lost or destroyed or cannot be found after a due a

nd proper search. Morrisv. Swaney, 54 Tenn. 5 91 (1872) ; Sanders v. McClanahan , 59 Tenn.App. 590, 442 S.W.2d 664 (1969). However, the fact that a will cannot be found after a due and proper search raises a presumption that the testator himself destroyed the will. Haven v . Wrinkle , 29 Tenn.App. 195, 195 S.W. 2d 787 (19 45); Shrum v. Powell, 60 4 S.W.2d 869 (Tenn.App.1980). Therefore, to overc ome the presumption the one seeking to establish a lost wil l must prove that the testator didnothave custody a

nd control of the will after execution, or that he had lost hi s testamentary

capaci ty f or a per iod befor e his dea th and tha

t the will w as i n existence at the time the loss of competency occurred. Haven v . Wrinkle , 29 Tenn.App. at 212, 195 S.W.2d 787.
In Shrum v. P

owell , 604 S.W.2d 869 (Tenn. Ct. App. 1980), this Court quotes with approval from the case of Wolfe v. W illiams , to the following effect (at pag e 871):
To est ablish a lost will it is incumbent upon the proponents to show (1 ) that the testator

made and

executed a valid will in accordance with the forms of law and the death of

the testator; (2) that the will had not been revoked and is lost or destroyed or c annot

be foundafter due and proper searc h; and (3) the substance and contents of the will. Vol 1, Phillips’ P ritchard Law of Wills , Sec. 50; Morris v. Swaney , 54 Tenn. 591 [( 1872) ]; Moore et al. v. W illiams, e t al. , 30 Tenn.App 479, 207 S.W.2d 59 0 [(1947)]; Haven v. Wrink le , 29 Tenn.App. 195, 195 S.W.2d 787 [(194 5)]. Not one bu t all of the above points must b e proven by “ the clea rest and most stringent evidence” ( B uchanan v. Matlock , 27 Tenn. 389 [(1847)]) or “clear, cogent and convincing proof” ( Wolfe v. W illia ms , 1 T enn.App. 441 [(1925)]). (Emphasis added.)
Moreover, the treatise Pritchard on Wills , 5 th Ed., Sec . 51, et seq ., addresses the subject th us ly: § 51. Proof necessary to set up lost will; decree.

For the establishment

of a lost w ill, it

is necessary

for the plaintiff to show to the s atisfaction of the court: firs t, that the testator made and

executed a valid will in accordance with the forms of law, and the death of the testator; second, that-7-

the will had notbeen revoked, and is lost or destroy ed, or cannot be found after due and p roper se arch; a

nd third, t he substa nce and contentsof the will.
1. It seems that the

execution of the will must be proved by all the subscribing witnesse s if alive and within the jurisdiction of the court, with the same formality asif the will itself were produced in court for probate. T he heir or distributee is entitled to have all the witnesses examined, and a failure t o introduce them must be excused by proof of a su fficien t reason for their nonintroduction. With respect to a will executed bef ore enactment of the Execution of Wills Act of 1941, its due and formal execution in one o f the two modes made ess ential by statute to

th e validity of this class of wills had to be shown; but in every ca se, the pro o f of fact of execution had to be equal to the cleare st and most s atisfac tory testimony

of two une

xceptiona ble witne sses.
In the case of a

will of e ither real estate or personalty executed after February 15, 1941, its due and formal execution in conformity with the Execution of Wills Act must be shown.
2. When a will cannot be found after the death of a testator , there i s a strong presumption that it was destroy ed or revoked by the

testator himself, and this presumpt

ion standsin the pla

ce of pos itive proo f. One who seeks to establish a l ost or destroyed will assumes the bur den of overcoming this presum ption b y adequa te proof. It is not sufficient to show that persons interested t o es tablish intestacy had an opportuni

ty to des troy the will. One must go further and show by facts a nd circu mstance s that the will actua lly w as lost or d

estroy ed frau dulently or accidentally

against, and not

in accordance with, the wishes and intention of the testator. (Emphasis added.)
The presum ption tha t the will was destroyed by the testator, animo revocandi , may be rebutted, and its loss or destruction by other mea ns may be shown, by circumstantial as we ll as positive evidence, as: by showing tha t the testator did nothave the custody and control of the instrument after its execution; that he had lost his testamentary c apacity for a period before his death; that the will was in existence at the time the mental alienation occurred; and the like. The decla rations of the testator, before or after making the will, are admissible i n evidence to support or destroy the presumption of revocation.
3. Before secondary

proof of the contents of the will can be admitted, it m ustbe show n that the instrument itself has been destroy ed absolutely; or the party must show that, with reasonable diligence, he has resorted to and exhausted-8-

all the sources of

information and means of discover y th at were

access ible to him and that the nature of the case would sugg est. When the necessa ry proof of loss or destruction has been made, the contents of the will may be established by the samech ar ac te r o f e vi de nc e a s o th er lo st or de st ro yed in st ru me nt s: fi rs t b y a c op y, and second by proof

of its contents from

memory and recollection. The cont ents may be prove d by

a copy kept by the attor ney who drew

it.
In reaching our conclusion that the Plaintiffs have not satisfactorily rebutted the presumption that Mr. Frazier destroy ed the first will, we have not overlooked the testimony of Ms. Herron tha t Mr. Frazier

reassur ed her in the fall o f the y ear 2000, several months after the second will was executed, that her daughter Chelsea would no t have to w orry about her

colleg e educa

tion. I n this regard we also n ote a sta

tement fr om Pritchard

, found in § 51, that “ Declar ations o f a t estator, standing alone, are insufficient to overcome the presumption of revocation of a lost will.”
The Guardian Ad Litem argues in support of his ward’s position that the proof sho ws Ms. Smithhad the motive, inclination andopportunity to destroy the first will. With all due res pect to counsel, this does not meet the requ irementsof the ca se law and treatis e above set out, pa

rticular ly in light of the representation made by Mr. Fra zier to Mr. Hurst when he w as told tha

t he should destroy any prior wills.
Fi na ll y, we obser

ve that the transc

ript of the

lost will ca se is rep lete wit h extrane ous, irrelevant and

incompetent testimony and should have been presented more concisely by targeting the sole issue with regard thereto–whet her the Plaintiffs’ proof had overcome the strong pre sumption that Mr. F

razier de stroyed his fir st will.
For the foregoing reasonsthe judgment of the Trial Court in the lost will case is reversed and the case dismissed. Having done so, it

follows, in accor

dance w ith the agreement of the parties, the Plaintiffs h ave no stand ing t o pursue a contest as to the second will. The case is remanded for further proceedings, if any , as may be necessary and collection of costs below which are, as are costs of appeal, adjudged ag ainst Sam Lough, Debbie L ough, Darry

l Herron and Elizabeth Herron.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE