# FILED

July 1, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE MATTER OF: ) THE ESTATE OF MARY ARDELLE GOWER ) ) WILLIA M STEVEN JONES, Executor of ) the Estate of Mary Ardelle Gower, ) ) Proponent/Appella

nt, ) Appeal No.

) 01-A-01-9710-CH-00605 v. ) ) Wayne Chancery TYSON ROBERTSON, B ESSIE LEWI

S, ) No. 127-P DANNY GOBBELL, PAT HENKEL and ) MARILYN WHITTEN, ) ) Contestants/Appel

lees. ) )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR WAYNE COUNTY

AT WAYNESBORO, TENNESSEE

THE HONORABLE ROBE RT L. JONES, CHANCEL LOR

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 HIL

LHOUSE Hillhouse & Huddleston 212 Pulaski Street P. O. Box 787 Lawrenceburg, Tennessee 38464 ATTORNEY FOR APPELLEES

AFFIRMED AND REMANDED

WILLIAM B. CAIN, JUDGE-2- 

# OPINION

Mary Ardell e Gower d ied on A ugust 11, 199 5 in Wayne County, Tennessee at the age of 73. H er will was offe

red for probate by

William Steven Jones, the executor

therein named

and the sole benefic

iary of the wi

ll.
Tyson Robertson, Bes sie Lewis, Da nny Gobbell, Pa

t Henkel and Marilyn Whitten, the hei

rs at law of

Mary Ardelle

Gower by intestate succession contested the will before the Chance ry Court of W

ayne County,

Tennessee and a six person jury

on three grounds to-w

it: 1. The will was not

exe cuted in conformity with T.C.A. § 32-4-101 et seq. 2. The testatrix was of unsound mind at the time of th e execution of the purpo

rted will on Januar

y 19, 1995, and 3. The will was the product of undue influence by William SteveJones over the test atrix. I nclu ded within the issue of undue influence was the alleg ation that a confidential relationship

existed between William Steve Jones and Mary Ardelle Gower.

The jury returne

d a general verdic

t in favor of the contestants of

the will which verdict was approved by the trial judge.
The proponent of th e will appealed asserti ng two issues for revi ew: I. The jury instruc

tion s mis-stated the

law and misled

the jury concerning

what the contestants had to pro

ve in order to establish aconfidential relationship and essentially charged the jury with det

ermining the status of the law r egarding confidential relat

ionships.
II. The jury inst

ruct ions mis-stated the law and mis led the jury regarding the elements the c ontes tants had to prove in order to establish

a presumption of

undue influence, th

ereby improperly

shifting the burden of

proof to the proponent.

In view of

the limited issues presented on appeal adetailed recitati

on of facts is not necessary. It suffices to say thatMary Ardelle

Gower died August 11, 1995 lea ving a personal estate v alued at $191,000.00 a

nd real property valued at $87,000.00.-3- On July 19, 1995 she had executed a will pr epared by David Comer, an experienced lawy

er inLawrenceCounty, Tenne ssee. In this will she left all of her property to

her friend Will

iam Steven Jones, and further pro vided in part: I make the above devise and bequest with the full real

ization that my surviving bodily

heirs are exclude

d from sharing i

n the bounty of

my estate . I do this not from any lack of

love or affection for

said heirs, but because it

is my des ire th at my friend, William Ste

ven Jones, receive the bounty of my estate for his care of m

e during my l

atter years.

William Steven Jones was a minister in the Methodist church attended by Mary Ardelle Gower and had befrien ded her in the last years o f her life.

In this case the court c

harged 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 c

ourt in this respect a

nd no issue is asserted as to this

portion of the charge

on appeal.

The court charged the ju r y that the contes tants 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 iss

ue relati ng thereto i s asserted on appeal.

The issues on appeal ass erted by the appellant rela

te solely to the charge to the ju ry concerni ng undue influence and confidential relat ionship. Specifically

appellant objects

to the portion of the c

harge stating:

. . . If the person in the d omina nt or controlling role is an attorney with regard to a cl ient, a guardian w

ith regard to a ward, a psychiatrist

with r egard to a patient, a trustee of a trust fund with rega

rd to the beneficia

ry of that trust

. Andin some cases - - and I'm not e xpressing an opinion one way or the other in this case.But insome cases a m inister or aclergyma

n having a close rela

tionship with a

member of

his congregation mi

ght be in such a relat

ionship.
But in this case, please understand I am not commentin

g on the e vidence or on the facts of thi s case. I am merely explaining to yo u that in these attorn ey/client ,-4- truste e/bene ficiary, guardian/ward type situations, there is a confidential relat ionship establi shed as a matter of law.
For exam p le, if Mr. Com

er had been a benef

iciary of this will, after having prepared it and serving as her attorney for anumber of y

ears, I could have

instructed you

as a matter of law that Mr. Come

r was in a confid

ential relationship and thathe would have the bur den of proving that undue influence did not exist and t h at she got independent advice or in some other w

ay was exerc

ising her free age

ncy and will.
What I'm sayin

g, ho wever, is that while the j ury could conclude that a clergyman

is in that role, I can not as a matter of law say that's the situa tion in this case.

While it is true t hat the burden rests upon the trial court to give an accurate statemen t o f the law, Street v. Calver t , 541 S.W.2d 576 , 584 (Tenn. 1976), it is likewise tr

ue that perfection in the c harge is not the crit

erion for affirmance

or reversal. Davis v. Wilson , 522 S.W.2d 872, (Tenn.Ct.App.1974). As stated therein: The complaints in re

gard to the charge a

nd omissions therefrom are not entirely unfounded. Se l dom is a charge delivered to a jury which could not be improved. It is better practice for the trial jud ge to reduce his char ge to writing befor e de livery and to ca refully com

pare its verbiage w

ith thatof th e special requests submitt ed by counsel so tha

t all properwords, phrases a nd rules m

ay be included. Nevertheless,

perfection is

not the criterion for affirmance or reversal; and a charge which states the law wit h substantial accuracyand fairly submits the issues to the jury should not be grounds for rever

sal. 522 S.W.2d 872,

884.
For a fact situation sim

ilar to the case at

bar, in which a similar

jury instruct

ion

was upheld by the court , se e Hale v. Bradley, 817 S.W.2d 320, (Tenn.Ct.App.1991).

In another context th

is court has held: [7, 8] The trial co

urt is the jury's sole source for the legal principles to guide their delibe rations. State ex rel. Myers v. Brown , 209 Tenn. 141, 148-49, 351 S.W.2d 385, 388 (1961). Thus, trial courts m

us t g ive accurate instructions with respect-5- to the parties' respecti ve theories, Street v. Calvert , 541 S. W.2d 576, 584 (Tenn.1976) , and must fra me the i ns tructions in plain words that a verage jurors w

ill understand. Gross v. Nashville Gas Co , 608 S.W.2D 860, 872 (Tenn.Ct. A pp.1 980); Martin v. CastnerK nott Dry Goods Co. , 27 Tenn. App. 421, 431, 181 S.W .2D 638, 6 42 (1944). [9] We d o no t measure ju ry instructions a

gainst the standard of perfection. Davis v. Wilson , 522 S.W. 2D 872, 884 (Tenn. C t. App. 1974). Instead, we review the entire charge just as the jury would, Memphis St. Ry. v. Wils on , 108 Tenn. 618, 62 0, 69 S.W. 265, 265 (1901); Abbott v. A mericanHonda Motor Co. , 682 S.W.2D 206, 209 (Tenn. Ct. App. 1984) and we w ill not inva

lidate it as long as it fairly defines the legal i ssues 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. Metr

o Gov't of Nashvil

le , 817 S .W.2D 679, 68 5 (Tenn.Ct.App.1991).

In this case, if the

portions of the charg

e asserted by the appellant are taken in isolation from the remainder of the court's charge on undue influence and confidential re lation, serious qu estions would aris e. However, when these portions of the charge

are take n in conjunction with the remainder

of the extensive charge given by

the court on undue

influence and confi

dential relation, the problem is r

esolved.

On the whole the char

ge of the trial court on these issues was adequate. In re: Estate of El

am , 738 S.W.2D 169, 176 (Tenn. 1987).

A more compelling rea son ap pears for affir ming the judgm

ent of the trial court. This c ase was submitted to the j ury for a gener al verdict without objection by an

y party. Specifically th

e record discloses: THE COUR T . . . I'm instructing you to return a genera l verdictand tell us this will is valid and admi ssible to probate or this will is invalid an

d not admissible to

probate ; o r, for simpler purposes, the will is good or the will is bad unde r the law.-6- That's the verdict you 're being asked to do or to retur n, one way or the other, acc

ording to ho w you f

ind the facts and apply the law to those facts in this case. Anything from

either of the part

ies?
MR. HILLHO

USE: No. MR. ROSS: No, Your Honor.

Over a century ago th

e United States Su

preme Court he

ld in Maryland

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

r more theories

of liability and

reversible error appeared

as to any one of the t

heories submitte

d th en the case ha

d to be reversed and a

new trial granted beca

use the court on appeal ha d no way of knowing the basis for the jury v

erdict.

On the trial, evidenc

e was introduced be

aring upon all the issues, and if any one of the pleas was, in the opinion of the jury, sustained, their verdict was properl y rendered, but its generality prevents us from

perceiving upon

which plea they found. If, therefore, upon any one issue error was committ ed, eit her in the admis sion of evidence, or in the charge of the court

, the verdict cann

ot be upheld, for

it may be that by that ev ide nce the jury w ere controlled unde

r the instructions given. Maryland v. Baldwin , 112 U.S. 490, 493 (1884).

Tennessee has, however, by statute predating Bal

dwin, adopted a completely

opposite rule. Tennessee Code Annotated sec tion 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 no t changed significan tly in the one hundred and forty years sinc e that time.

Under these statutes it is held tha t if a verdict is sustaina

ble on any one groundsubmitted to the ju ry, erroneous instructi ons as to another count is harmless error and not

a basis for rever

sal. Tutton v. Patte

rson , 714 S.W.2D

268 (Tenn. 1986).-7- In the leading case under these statutes of Tennessee Cen tral Railroad Co. v. Umenstetter , Chief Justice G rafton Green obse

rved: The Court of App eals fo und that there was e vidence to take th e case to the jury

on the statutory c

ount. That court, however, did not

find any evidenc

e to take the

case to the jury

on the comm

onlaw count. The trial judge instructed th e jury as to the

liability of the

defendant below under the

common law , as well

as under the Statute . While the Cour t of A ppeals discovered no error in the charge upon the

common-la

w count , the y concluded that such a charge m ust have been mis

leading to t he jury, as they foundno evidence of

common-la

w negligence, and

for this reason the j udgment below was rever

sed and a new trial

awarded. We do not find it nece ssa ry to review t he facts of the case. The Code p

rovides as follows: "If any counts in a declaration are good, a verdict for entire damages shall be applied to such goo d count s." Thompson's-Sh

annon's Code, § 4694.
A general verdict was returned for plain tiff, and under the statutejust quoted this verdi ct must be applied to

that count of the declaration which there is evidence t

o sustain. Although there be no evidence

of common-

law negli g ence, the verdict herein wa

s good, sin ce it is conceded there is evidence of the fa

ilure to observe the statutory precautions.
Tennessee Cent. Ry. Co. v. Umenstetter , 155 Tenn. 235, 237, 291 S.W. 452, 453 (1927).

After distinguishing cases pr

edating Chapter 32 of

the Public Acts of 1911 (the h ar mless error statute) th e Supreme Cou

rt reversed the Co

urt of Appeals and reinstated the jud

gment of a tria

l court sustaining a ge

neral verdict. Keeping in mind

the provisions of the statute just quoted, it would have to appear to us a

ffirmatively

that the charge of the trial judge upon common-law negligence influenced or affectedthe verdict of

the jury, before we would be justified in reversing the ju

dgment below on t

hat account. Counsel for the plaintiff in error has made a strong arg ument here to sustain the c

onclusion of the Court o f Appeals that there was no evidence of c om mon-law negligence offered on the tria l. A t the same tim

e he conceded that there was evidence of the failure to obser

ve the statutory precautions. Could we reasonably be asked in such circumstances to refer the verd ict of the jury

to the commonlaw count? Could we say that the ju ry found the plain

tiff in error breac hed it s comm on-law duties, when there was no evidence of such breach? On the other hand, are w e not compelled

to say that the

jury found the plaintiff in error to have breached its statutory duties, it being admitted that there-8- was evidence to this effect. Certainly there is nothing before us to show affirmatively that the jurybased the verdict upo n the count not sustained by proof, rath er than upon

the count sufficiently

supported by proof

, or to show that the

jury was confused by the charge. We cannot escape the a ct of 19 11 in disposing of this case. We do not think a mere abstraction of the t

rial judge in deliveringhis ins t ructions to the jury invaded any constitutional rights of

the parties. The Court of Appeals e

xpressed the opinion that, since the pract ice of d irecting 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 verdic

t in favor of defend

ant below at the close of the proof, it was a motion for a directed verdict

upon the wholecase. There wa s no motion for a d irected verdict on the common-la

w count -- no specific re

quest 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 m

andate as to the eff

ect to be given to a

general verdict applies in a

will contest. Davidson v. Gilreath, 273 S.W.2d 717 (T enn.Ct.App. 1954).

In Tutton v . Patterson the jury retu rned a general ver

dict in a case submittedon three theories of liability. The Court of Appeals rever

sed because of error in the char

ge as to one of these t

heories. The Sup

reme Court of Tennessee grante

d certiorari and r

eversed the Court of

Appeals holding: [3, 4] The Court of App eals d etermi ned that the tri al court's charge on the vicar ious liability coun

t was erroneous and vacated the judgm ent against Dr. P

atterson and remanded the cause for a new

trial without conside

ring whether the error was harmless. We are of the opinion that the trial court's error, if any, was harmless er ror. T.C.A. § 20-9 -502 provides as follow s: Verdict applied to good a ccount. [sic] -- If an

y counts in a declaration a

re go od, a verdict for entire damages shall be

applied to such good count s. Tennessee courts have

held on the basis of the

above quoted statutethata trial court's e rroneous instruction o

n one count of a multicount s

uit is harmless err

or if its instructions

as to the other counts were prop er. Tennessee Cent. Ry. Co. v. Umenstetter , 155 Tenn. 235, 237, 291 S .W. 452 (1927);-9- Bloodworth

v. Stuart , 221 Tenn. 567, 577 , 428 S .W .2d 786 (1968). "[A] general

verdict approved by t he trial judge is not vitiated by the a

bsence of proof on one or m

ore counts of the declaration if the

re is e vide nce to sustain the ave rments of a sin gle count." Alex v. Armst rong , 215 Tenn. 276, 286 , 3 85 S.W.2d 110 (1964

); Valentine v. Concemco, Inc. , 58 8 S.W.2d 871, 877 (Tenn. App. 1979).
Tutton v. Patte

rson , 714 S.W.2d 268, 271 (Tenn. 1986).

In this case

the trial judge

submitted to the j ury three sepa rate issues. If the contestants could prev ail on any one of t he issues the will in q

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

on appeal onl y as to certain instructions dealing w ith the undue influence issue and its com panion issu e of confidential relat ion. No objection is asserted on ap peal as to the issue of unsoundne ss of mind or the i ssue of whether or not the will was executed under pro cedures mandated by law.

While counsel for appella

nt was not

counsel in the trial court, we m ust note that the mot

ion for a directed v

erdict made in

the trial court was a

general motion as to all issues and not specifically directedat each issue. L ikewise no issue is made on appeal as to the failure of the trial court to gr

ant themotion for a directed verdic

t on all issues.

One can glea n from t he remarks of the trial judge tha

t he was not particul arly impres sed with the issue abo ut the execution of the

will. But the issue was nonetheless subm itted to the jury

and not the subject o

f a directed verdictor a ju dgme nt no twithstanding the ver dict. In any e

vent the trial judge approved the general verdict and on appea l this court iscompelled by statute to attribute the verdict of the j ury to the count a lleging unsoundness of m ind of the testatrix, this gro

und for invalidating the

will being unchallen

ged on appeal.

The judgment of the trial court is in all respects a

ffirmed and th

e case is remanded for

further pro ceedings as may be deemed necessary by the trial court.-10- Costs of this cause are assessed against the appellant.

________________________________ WILLIAM B. CAIN, JUDGE

CONCUR:

_________________________________ HENRY F. TODD, PRESIDING JUDGE

_________________________________ BEN H. CANTRELL, JUDGE