FILED

July 1, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE MATTER OF: )

THE ESTATE OF MARY ARDELLE GOWER )

)

WILLIAM STEVEN JONES, Executor of )

the Estate of Mary Ardelle Gower, )

)

Proponent/Appellant, ) Appeal No.

) 01-A-01-9710-CH-00605

v. )

) Wayne Chancery

TYSON ROBERTSON, BESSIE LEWIS, ) No. 127-P

DANNY GOBBELL, PAT HENKEL and )

MARILYN WHITTEN, )

)

Contestants/Appellees. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY

AT WAYNESBORO, TENNESSEE

THE HONORABLE ROBERT L. JONES, CHANCELLOR 

JERRY SCOTT

JOHN KEA

Scott & Kea

110 City Center Building

100 East Vine Street

P. O. Box 1216

Murfreesboro, Tennessee 37133-1246

ATTORNEYS FOR APPELLANT

RANDY HILLHOUSE

Hillhouse & Huddleston

212 Pulaski Street

P. O. Box 787

Lawrenceburg, Tennessee 38464

ATTORNEY FOR APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE
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OPINION

Mary Ardelle Gower died on August 11, 1995 in Wayne County,

Tennessee at the age of 73. Her will was offered for probate by William Steven

Jones, the executor therein named and the sole beneficiary of the will.

Tyson Robertson, Bessie Lewis, Danny Gobbell, Pat Henkel and

Marilyn Whitten, the heirs at law of Mary Ardelle Gower by intestate succession

contested the will before the Chancery Court of Wayne County, Tennessee and

a six person jury on three grounds to-wit:

1. The will was not executed in conformity with T.C.A. §

32-4-101 et seq.

2. The testatrix was of unsound mind at the time of the

execution of the purported will on January 19, 1995, and

3. The will was the product of undue influence by William

Steve Jones over the testatrix. Included within the issue of

undue influence was the allegation that a confidential

relationship existed between William Steve Jones and Mary

Ardelle Gower.

The jury returned a general verdict in favor of the contestants of the

will which verdict was approved by the trial judge.

The proponent of the will appealed asserting two issues for review:

I. The jury instructions mis-stated the law and misled the

jury concerning what the contestants had to prove in order to

establish a confidential relationship and essentially charged

the jury with determining the status of the law regarding

confidential relationships.

II. The jury instructions mis-stated the law and misled the

jury regarding the elements the contestants had to prove in

order to establish a presumption of undue influence, thereby

improperly shifting the burden of proof to the proponent.

In view of the limited issues presented on appeal a detailed recitation

of facts is not necessary. It suffices to say that Mary Ardelle Gower died August

11, 1995 leaving a personal estate valued at $191,000.00 and real property

valued at $87,000.00.
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On July 19, 1995 she had executed a will prepared by David Comer, an

experienced lawyer in Lawrence County, Tennessee. In this will she left all of

her property to her friend William Steven Jones, and further provided in part:

I make the above devise and bequest with the full realization

that my surviving bodily heirs are excluded from sharing in

the bounty of my estate. I do this not from any lack of love

or affection for said heirs, but because it is my desire that my

friend, William Steven Jones, receive the bounty of my estate

for his care of me during my latter years.

William Steven Jones was a minister in the Methodist church attended

by Mary Ardelle Gower and had befriended her in the last years of her life. 

In this case the court charged the jury that the proponent of the will had

the burden of proving that the will was executed in conformity with Tennessee

law. No objection is made to the charge of the court in this respect and no issue

is asserted as to this portion of the charge on appeal.

The court charged the jury that the contestants had the burden of

proving unsoundness of mind of the testatrix. No objection to this portion of the

charge was made in the trial court and no issue relating thereto is asserted on

appeal.

The issues on appeal asserted by the appellant relate solely to the

charge to the jury concerning undue influence and confidential relationship.

Specifically appellant objects to the portion of the charge stating: 

. . . If the person in the dominant or controlling role is an

attorney with regard to a client, a guardian with regard to a

ward, a psychiatrist with regard to a patient, a trustee of a

trust fund with regard to the beneficiary of that trust.

And in some cases -- and I'm not expressing an opinion one

way or the other in this case. But in some cases a minister or

a clergyman having a close relationship with a member of his

congregation might be in such a relationship.

But in this case, please understand I am not commenting on

the evidence or on the facts of this case. I am merely

explaining to you that in these attorney/client,
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trustee/beneficiary, guardian/ward type situations, there is a

confidential relationship established as a matter of law. 

For example, if Mr. Comer had been a beneficiary of this

will, after having prepared it and serving as her attorney for

a number of years, I could have instructed you as a matter of

law that Mr. Comer was in a confidential relationship and

that he would have the burden of proving that undue

influence did not exist and that she got independent advice

or in some other way was exercising her free agency and

will.

What I'm saying, however, is that while the jury could

conclude that a clergyman is in that role, I can not as a matter

of law say that's the situation in this case. 

While it is true that the burden rests upon the trial court to give an

accurate statement of the law, Street v. Calvert, 541 S.W.2d 576, 584 (Tenn.

1976), it is likewise true that perfection in the charge is not the criterion for

affirmance or reversal. Davis v. Wilson, 522 S.W.2d 872, (Tenn.Ct.App.1974).

As stated therein:

The complaints in regard to the charge and omissions

therefrom are not entirely unfounded. Seldom is a charge

delivered to a jury which could not be improved. It is better

practice for the trial judge to reduce his charge to writing

before delivery and to carefully compare its verbiage with

that of the special requests submitted by counsel so that all

proper words, phrases and rules may be included.

Nevertheless, perfection is not the criterion for affirmance or

reversal; and a charge which states the law with substantial

accuracy and fairly submits the issues to the jury should not

be grounds for reversal.

522 S.W.2d 872, 884.

For a fact situation similar to the case at bar, in which a similar jury instruction

was upheld by the court, see Hale v. Bradley, 817 S.W.2d 320,

(Tenn.Ct.App.1991). 

In another context this court has held:

[7, 8] The trial court is the jury's sole source for the legal

principles to guide their deliberations. State ex rel. Myers v.

Brown, 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961).

Thus, trial courts must give accurate instructions with respect
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to the parties' respective theories, Street v. Calvert, 541

S.W.2d 576, 584 (Tenn.1976), and must frame the

instructions in plain words that average jurors will

understand. Gross v. Nashville Gas Co, 608 S.W.2D 860,

872 (Tenn.Ct. App.1980); Martin v. CastnerKnott Dry

Goods Co., 27 Tenn. App. 421, 431, 181 S.W.2D 638, 642

(1944).

[9] We do not measure jury instructions against the

standard of perfection. Davis v. Wilson, 522 S.W.2D 872,

884 (Tenn. Ct. App. 1974). Instead, we review the entire

charge just as the jury would, Memphis St. Ry. v. Wilson, 108

Tenn. 618, 620, 69 S.W. 265, 265 (1901); Abbott v.

American Honda Motor Co., 682 S.W.2D 206, 209 (Tenn.

Ct. App. 1984) and we will not invalidate it as long as it

fairly defines the legal issues involved in the case and does

not mislead the jury. Smith v. Parker, 213 Tenn. 147, 156,

373 S.W.2d 205, 209 (1963); Railroad Co. v. Spence, 93

Tenn. 173, 187, 23 S.W. 211, 215 (1893).

Grissom v. Metro Gov't of Nashville, 817 S.W.2D 679, 685

(Tenn.Ct.App.1991).

In this case, if the portions of the charge asserted by the appellant are

taken in isolation from the remainder of the court's charge on undue influence

and confidential relation, serious questions would arise. However, when these

portions of the charge are taken in conjunction with the remainder of the

extensive charge given by the court on undue influence and confidential relation,

the problem is resolved.

On the whole the charge of the trial court on these issues was adequate.

In re: Estate of Elam, 738 S.W.2D 169, 176 (Tenn. 1987).

A more compelling reason appears for affirming the judgment of the

trial court. This case was submitted to the jury for a general verdict without

objection by any party. Specifically the record discloses:

THE COURT . . . I'm instructing you to return a general

verdict and tell us this will is valid and admissible to probate

or this will is invalid and not admissible to probate; or, for

simpler purposes, the will is good or the will is bad under the

law.
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That's the verdict you're being asked to do or to return, one

way or the other, according to how you find the facts and

apply the law to those facts in this case.

Anything from either of the parties?

MR. HILLHOUSE: No.

MR. ROSS: No, Your Honor.

Over a century ago the United States Supreme Court held in Maryland

v. Baldwin, 112 U.S. 490 (1884) that if a general verdict was returned by the jury

in a case involving two or more theories of liability and reversible error appeared

as to any one of the theories submitted then the case had to be reversed and a

new trial granted because the court on appeal had no way of knowing the basis

for the jury verdict.

On the trial, evidence was introduced bearing upon all the

issues, and if any one of the pleas was, in the opinion of the

jury, sustained, their verdict was properly rendered, but its

generality prevents us from perceiving upon which plea they

found. If, therefore, upon any one issue error was

committed, either in the admission of evidence, or in the

charge of the court, the verdict cannot be upheld, for it may

be that by that evidence the jury were controlled under the

instructions given.

Maryland v. Baldwin, 112 U.S. 490, 493 (1884).

Tennessee has, however, by statute predating Baldwin, adopted a

completely opposite rule. Tennessee Code Annotated section 20-9-502 and 20-

9-503. These sections were first enacted as § 2969 and § 4247 of the Tennessee

Code of 1858 respectively. They have not changed significantly in the one

hundred and forty years since that time. 

Under these statutes it is held that if a verdict is sustainable on any one

ground submitted to the jury, erroneous instructions as to another count is

harmless error and not a basis for reversal. Tutton v. Patterson, 714 S.W.2D 268

(Tenn. 1986).
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In the leading case under these statutes of Tennessee Central Railroad

Co. v. Umenstetter, Chief Justice Grafton Green observed:

The Court of Appeals found that there was evidence to

take the case to the jury on the statutory count. That court,

however, did not find any evidence to take the case to the jury on the commonlaw count. The trial judge instructed the jury as to the liability of the defendant

below under the common law, as well as under the Statute. While the Court of

Appeals discovered no error in the charge upon the common-law count, they

concluded that such a charge must have been misleading to the jury, as they

found no evidence of common-law negligence, and for this reason the judgment

below was reversed and a new trial awarded.

We do not find it necessary to review the facts of the

case. The Code provides as follows:

"If any counts in a declaration are good, a verdict for

entire damages shall be applied to such good counts."

Thompson's-Shannon's Code, § 4694.

A general verdict was returned for plaintiff, and under the

statute just quoted this verdict must be applied to that count

of the declaration which there is evidence to sustain.

Although there be no evidence of common-law negligence,

the verdict herein was good, since it is conceded there is

evidence of the failure to observe the statutory precautions.

Tennessee Cent. Ry. Co. v. Umenstetter, 155 Tenn. 235, 237, 291 S.W. 452, 453

(1927).

After distinguishing cases predating Chapter 32 of the Public Acts of 1911 (the

harmless error statute) the Supreme Court reversed the Court of Appeals and

reinstated the judgment of a trial court sustaining a general verdict.

Keeping in mind the provisions of the statute just quoted, it

would have to appear to us affirmatively that the charge of

the trial judge upon common-law negligence influenced or

affected the verdict of the jury, before we would be justified

in reversing the judgment below on that account.

Counsel for the plaintiff in error has made a strong

argument here to sustain the conclusion of the Court of

Appeals that there was no evidence of common-law

negligence offered on the trial. At the same time he

conceded that there was evidence of the failure to observe the

statutory precautions. Could we reasonably be asked in such

circumstances to refer the verdict of the jury to the commonlaw count? Could we say that the jury found the plaintiff in

error breached its common-law duties, when there was no

evidence of such breach? On the other hand, are we not

compelled to say that the jury found the plaintiff in error to

have breached its statutory duties, it being admitted that there
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was evidence to this effect. Certainly there is nothing before

us to show affirmatively that the jury based the verdict upon

the count not sustained by proof, rather than upon the count

sufficiently supported by proof, or to show that the jury was

confused by the charge.

We cannot escape the act of 1911 in disposing of this

case. We do not think a mere abstraction of the trial judge in

delivering his instructions to the jury invaded any

constitutional rights of the parties.

The Court of Appeals expressed the opinion that, since

the practice of directing verdicts upon separate counts of a

declaration had come into vogue, the effect of section 4694,

Thompson's-Shannon's Code, (now T.C.A. 20-9-502) might

be obviated. Be that as it may, although there was a motion

for a directed verdict in favor of defendant below at the close

of the proof, it was a motion for a directed verdict upon the

whole case. There was no motion for a directed verdict on

the common-law count -- no specific request of the court for

action upon that count alone.

Tennessee Cent. Ry. Co. v. Umenstetter, 155 Tenn. at 239, 291 S.W. at 453.

This statutory mandate as to the effect to be given to a general verdict

applies in a will contest. Davidson v. Gilreath, 273 S.W.2d 717 (Tenn.Ct.App.

1954).

In Tutton v. Patterson the jury returned a general verdict in a case

submitted on three theories of liability. The Court of Appeals reversed because

of error in the charge as to one of these theories. The Supreme Court of

Tennessee granted certiorari and reversed the Court of Appeals holding:

[3, 4] The Court of Appeals determined that the trial

court's charge on the vicarious liability count was erroneous

and vacated the judgment against Dr. Patterson and

remanded the cause for a new trial without considering

whether the error was harmless. We are of the opinion that

the trial court's error, if any, was harmless error.

T.C.A. § 20-9-502 provides as follows:

 Verdict applied to good account. [sic] -- If any

counts in a declaration are good, a verdict for entire

damages shall be applied to such good counts.

Tennessee courts have held on the basis of the above quoted

statute that a trial court's erroneous instruction on one count

of a multicount suit is harmless error if its instructions as to

the other counts were proper. Tennessee Cent. Ry. Co. v.

Umenstetter, 155 Tenn. 235, 237, 291 S.W. 452 (1927);
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Bloodworth v. Stuart, 221 Tenn. 567, 577, 428 S.W.2d 786

(1968). "[A] general verdict approved by the trial judge is

not vitiated by the absence of proof on one or more counts of

the declaration if there is evidence to sustain the averments

of a single count." Alex v. Armstrong, 215 Tenn. 276, 286,

385 S.W.2d 110 (1964); Valentine v. Concemco, Inc., 588

S.W.2d 871, 877 (Tenn. App. 1979).

Tutton v. Patterson, 714 S.W.2d 268, 271 (Tenn. 1986).

In this case the trial judge submitted to the jury three separate issues.

If the contestants could prevail on any one of the issues the will in question

would be invalid regardless of the outcome of the other issues. Appellant

complains on appeal only as to certain instructions dealing with the undue

influence issue and its companion issue of confidential relation. No objection

is asserted on appeal as to the issue of unsoundness of mind or the issue of

whether or not the will was executed under procedures mandated by law.

While counsel for appellant was not counsel in the trial court, we must

note that the motion for a directed verdict made in the trial court was a general

motion as to all issues and not specifically directed at each issue. Likewise no

issue is made on appeal as to the failure of the trial court to grant the motion for

a directed verdict on all issues.

One can glean from the remarks of the trial judge that he was not

particularly impressed with the issue about the execution of the will. But the

issue was nonetheless submitted to the jury and not the subject of a directed

verdict or a judgment notwithstanding the verdict. In any event the trial judge

approved the general verdict and on appeal this court is compelled by statute to

attribute the verdict of the jury to the count alleging unsoundness of mind of the

testatrix, this ground for invalidating the will being unchallenged on appeal.

The judgment of the trial court is in all respects affirmed and the case

is remanded for further proceedings as may be deemed necessary by the trial

court. 
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Costs of this cause are assessed against the appellant. 

________________________________

WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________

HENRY F. TODD, PRESIDING JUDGE

_________________________________

BEN H. CANTRELL, JUDGE