The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 3, 2002 Session
THE ESTATE OF ALLINE ELIZABETH GLASGOW,
CLARENCE E. BIGGS, ET AL. v. VIRGIL S. WHITTUM, ET AL.
Appeal from the Chancery Court, Probate Division for Sumner County
No. 2000P-12 C.L. Rogers, Chancellor
No. M2001-02263-COA-R3-CV - Filed December 19, 2002
Proponents appeal judgment of the trial court on a jury verdict against the Will on a finding of undue
influence by the proponents upon the testatrix. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S. and
J.S. DANIEL, SP . J., joined.
James Robin McKinney, Jr., Nashville, Tennessee, for the appellant, Virgil S. Whittum.
Paul T. Housch, Nashville, Tennessee, for the appellees, Clarence E. Biggs, Raymond Glasgow, Jr.,
R.B. Biggs, Richard Biggs, and William Ray Biggs.
OPINION
Alline Elizabeth Glasgow was married to Raymond Glasgow for 28 years prior to his death
on February 24, 1999. No children were born to the marriage, but Alline Glasgow had five children
by a previous marriage: Richard Biggs, R.B. Biggs, Willie Biggs, Clarence Biggs, and Norma Jean
Biggs Whittum. Raymond Glasgow had one child by a previous marriage, Raymond Glasgow, Jr.
The former husband of Alline Glasgow, Clarence E. Biggs, Jr., had a child by a previous marriage,
Harold Biggs, who lived in Florida. Appellant, Norma Jean Biggs Whittum was married to
Appellant Virgil Whittum. Alline Glasgow suffered from chronic lymphocytic leukemia, asthma,
hypertension, and congestive heart failure. Following the death of Raymond Glasgow on February
24, 1999, Alline Glasgow moved to the home of Virgil and Norma Jean Whittum and, on March 3,
1999, Norma Jean Whittum called Attorney Robert Rutherford to set up an appointment for Alline
Glasgow to make a will. At a meeting that same day between Robert Rutherford, Virgil Whittum
and Alline Glasgow, a power of attorney was prepared whereby Virgil Whittum was to become
attorney in fact for Alline Glasgow. Virgil Whittum then drove Alline Glasgow to a nearby funeral
home where she executed the power of attorney. Mr. Rutherford’s partner, Ralph DeMarco, actually
prepared the will from notes taken by Mr. Rutherford and, on March 16, 1999, Virgil Whittum
escorted Alline Glasgow to the office of Mr. Rutherford where she executed a Last Will and
Testament, devising all of her property to Norma Jean Whittum and naming Virgil Whittum as
executor. Both Virgil Whittum and Norma Jean Whittum were aware of the contents of the will at
the time it was executed by Alline Glasgow.
Alline Glasgow died November 4, 1999, and the will prepared by Attorneys Rutherford and
DeMarco was offered for probate. Three of the brothers of Norma Jean Biggs Whittum contested
the will and, following a three day jury trial, the trial judge directed a verdict for the proponents on
all issues involving fraud and submitted the case to the jury on allegations of unsoundness of mind
and undue influence. The jury returned a verdict in favor of the proponents on questions of
unsoundness of mind, but returned a verdict against the will on issues of undue influence, thereby
finding that the will was the product of undue influence by both Virgil Whittum and Norma Jean
Biggs Whittum.
The trial court overruled the proponents’ motion for a new trial and they timely appealed.
Appellants assert four issues on appeal:
I. Whether the Trial Court Erred in Correctly Charging the Jury on the
Legal Standard of Undue Influence and Whether the Trial Court erred in Denying the
Special Jury Request.
II. Whether the Trial Court Erred in Failing to Grant a Directed Verdict
on Behalf of the Appellant, Virgil Whittum.
III. Whether the Trial Court Erred in Allowing the Rebuttal Testimony of
L.Ralph DeMarco, Esquire.
IV. Whether there was Material Evidence to Support the Jury’s Verdict.
As review in the Court of Appeals on issues II and IV asserted by Appellants involve only
questions of law, it is well to recognize controlling law:
In this case, only the plaintiff and the defendant testified concerning the facts
of the accident. The Court of Appeals does not reweigh the evidence or reevaluate
witness’ credibility in an appeal from a jury verdict. Grissom v. Metropolitan Gov’t
of Nashville, 817 S.W.2d 679 (Tenn. App. 1991). This Court on appeal is required
to take the strongest legitimate view of the evidence favoring the prevailing party,
discard all contrary evidence, allow all reasonable inferences to uphold the jury’s
verdict and set aside the jury verdict only when there is no material evidence to
support it. T.R.A.P. 13(d). Smith County v. Eatherly, 820 S.W.2d 366 (Tenn. App.
1991), cert. denied, __ U.S. __, 112 S.Ct. 1762, 118 L.Ed.2d 424 (1992); Glover v.
Oakwood Terrace Associated II, 816 S.W.2d 43 (Tenn. App. 1991).
Witter v. Nesbit, 878 S.W.2d 116, 121 (Tenn. Ct. App. 1993).
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Appellate review of the action of the trial court in declining to grant a motion for a directed
verdict involves only a question of law. Ingram v. Earthman, 993 S.W.2d 611, 626 (Tenn. Ct. App.
1998) (appeal denied and rehearing of denial of appeal denied, certiorari denied, 528 U.S. 986, 120
S.Ct. 445, 145 L.Ed.2d 362).
Whether “material evidence” exists in the record sufficient to submit a case to the jury is
likewise a question of law. Cude v. Culberson, 209 S.W.2d 506, 513 (Tenn. Ct. App. 1947).
This Court has held:
Of course, reviews under “preponderance of the evidence” and “material evidence”
tests are not similar and, in fact, are poles apart. Under the preponderance of
evidence test, the evidence is weighed by the reviewing Court on an evidentiary fact
scale. Whichever side of the fact scale is heavier will be the finding of the Court.
Where the review is on the test of “material evidence” no scale of evidence is used
by the reviewing court. It is simply a search of the record to ascertain if material
evidence is present to support the verdict. It matters not a whit where the weight or
preponderance of the evidence lies under a material evidence review. The reviewing
Court might well be of the opinion that the evidence preponderates heavily against
the judgment below, but under a material evidence review, if material evidence is
found to support the judgment, that is, evidence from which a trier of facts, if he were
inclined to believe it, could reach the conclusion reached, then, the judgment based
thereon must be affirmed. That is why a “material evidence” test is one of law; not
of fact. To search for the presence of evidence is a task of law. To weigh evidence
is a task of fact.
Hohenberg Bros. Co. v. Missouri Pac. R. Co., 586 S.W.2d 117, 119-20 (Tenn. Ct. App. 1979).
The record in this case is replete with “material evidence” which would support a jury verdict
on the undue influence issue whether that verdict had been for the contestants or the proponents.
The jury verdict having been for the contestants and against the proponents and that verdict having
been approved by the trial judge, we are without authority on appeal to disturb the verdict. T.R.A.P.
13(d).
In order for this Court to hold that no material evidence supported the verdict, or that Virgil
Whittum was entitled to a directed verdict, we would have to hold that as a matter of law, Alline
Glasgow received independent legal advice and that the power of attorney given to Virgil Whittum
March 3, 1999 did not trigger a presumption of undue influence. The record does not support such
findings. The record shows that it was Norma Jean Biggs Whittum who called Mr. Rutherford to
arrange a will for Alline Glasgow. Mr. Rutherford had previously represented Virgil Whittum in
other matters. The draft of the will not prepared by Rutherford but rather by DeMarco was sent not
to Alline Glasgow but to Virgil Whittum who read the will to her. Attorney DeMarco gave no
advice to Alline Glasgow and discussions between Robert Rutherford and Alline Glasgow were
limited to a brief conference on March 3, 1999, when Virgil Whittum had brought Mrs. Glasgow to
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his office and there obtained her power of attorney. Virgil Whittum used the power of attorney to
sell the real estate belonging to Alline Glasgow at less than its appraised value and promptly
deposited the proceeds of the sale in the joint bank account of Virgil Whittum and Norma Jean Biggs
Whittum. These actions, while not conclusive, clearly triggered a charge to the jury as to the
presumption of Matlock v. Simpson, 902 S.W.2d 384 (Tenn. 1985). While this case was pending
on appeal the supreme court, on May 23, 2002, rendered its opinion in Childress v. Currie, 74
S.W.3d 324 (Tenn. 2002), restricting the scope of the Matlock presumption to exclude an
unexercised power of attorney. The exclusion is inapplicable at bar since Virgil Whittum exercised
the power of attorney to dispose of the major asset of Alline Glasgow and deposit the resulting
proceeds in the joint account of Virgil and Norma Jean Whittum.
Said the Court:
The issue of undue influence should “be decided by the application
of sound principles and good sense to the facts of each case.” Id. at
388 (quoting Halle v. Summerfield, 199 Tenn. 445, 454, 287 S.W.2d
57, 61 (1956)). A careful reading of Matlock and Mitchell shows that
an unexercised power of attorney does not in and of itself create a
confidential relationship and we clarify Matlock to the extent it
suggests otherwise. The core definition of a confidential relationship
requires proof of dominion and control. Matlock, 902 S.W.2d 15
385-86; Mitchell, 779 S.W.2d 384 at 389. When an unrestricted
power of attorney is executed but has not yet been exercised, good
sense dictates that there exists no dominion and control and therefore
no confidential relationship based solely on the existence of the
power of attorney. In Matlock, there was additional evidence of
dominion and control based upon the attorney-client relationship and
the personal execution by the attorney of the will and the power of
attorney. Matlock, 902 S.W.2d at 385-86. In Mitchell, the niece
acted as caretaker to her ailing uncle, chose an attorney for him, drove
her uncle to the attorney’s office where he signed the power of
attorney and will in her van, and began exercising her power of
attorney before her uncle’s death. Mitchell, 779 S.W.2d at 386-87.
Childress, 74 S.W.2d at 329.
Virgil Whittum was therefore required to bring forth clear and convincing evidence to rebut the
presumption of undue influence evidenced by the execution of the power of attorney and the
subsequent use thereof to the benefit of Virgil and Norma Jean Biggs Whittum and to the detriment
of Alline Glasgow.
Clearly, there is material evidence in the record to support the verdict of the jury and the trial
court correctly denied a directed verdict to Virgil Whittum.
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In their third issue, Appellants assert that the trial court abused its discretion in allowing the
rebuttal testimony of Attorney L. Ralph DeMarco. The trial court did not abuse its discretion in
allowing the testimony. Attorney Robert Rutherford had implied that Attorney L. Ralph DeMarco
was present at his March 3, 1999 conference with Alline Glasgow. DeMarco, in the rebuttal
testimony, asserted that the first time he had ever seen Mrs. Glasgow was at the execution of the will
on March 16, 1999.
The trial court has wide discretion in allowing or disallowing rebuttal testimony. Coates v.
Thompson, 666 S.W.2d 69, 76 (Tenn. Ct. App. 1983). Such discretionary action will not be
disturbed on appeal in the absence of an abuse of discretion. Johns v. Caldwell, 601 S.W.2d 37
(Tenn. Ct. App. 1980).
The trial court did not abuse its discretion in allowing the rebuttal testimony of Mr. DeMarco.
Appellant complains of the correctness of the trial court charge to the jury on undue influence
and of the refusal of the trial court to grant their special request for a jury instruction.
As to undue influence, the trial court charged the jury:
In this action, the plaintiff, Clarence Biggs, R.B. Biggs and Richard Biggs
have the burden of establishing, by a preponderance of the evidence, all of the facts
necessary to prove unsound mind and undue influence by Norma Jean Whittum.
The law does presume undue influence by Virgil Whittum, placing the burden
of proof upon Virgil Whittum, as will be explained to you later in these instructions.
The burden of proof regarding the claim of unsound mind and undue
influence by Norma Jean Whittum requires the burden and use of the term
“preponderance of the evidence.” That means that amount of evidence that causes
you to conclude that an allegation is probably true. . . .
....
A will may not be enforced if it is brought by undue influence. Undue
influence is the overcoming of the mind of the person making the will by acts or
conduct of another person. Mere general influence of another person that does not
effect the act of making the will is not undue influence. To be undue influence, the
influence must amount to coercion that destroys the freedom of choice of the person
making the will. It substitutes the wishes or desires of another person and compels
the maker of the will to dispose of property in a way that would not have been done
otherwise.
In determining the issue of undue influence, you may consider, among other
things, the following:
One, the terms of the will unduly benefit the chief beneficiary
of the will.
Two, are the terms of the will different from the expressed
intentions of the maker of the will.
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Three, did the chief beneficiary’s relationship to the person
making the will give the beneficiary an opportunity to influence the
terms of the will.
Did the mental and physical condition of the maker of the will allow the
maker’s freedom of choice to be overcome by the action of others.
Did the beneficiary of the will actively take part in determining the provisions
of the will or in causing it to be executed or signed.
A confidential relationship exists whenever the trust and confidence of one
person is placed in the honesty and faithfulness of another. If you find that a
confidential relationship existed between the person making the will, Ms. Alline
Glasgow and Norma Jean Whittum, and you further find that Norma Jean Whittum
was active in causing the will to be made and unduly profited from it, there is
presumption that the will was obtained by the undue influence of Norma Jean
Whittum.
This type presumption may be overcome only if Norma Jean Whittum proves
by clear and convincing evidence that the making of the will was not the result of
undue influence.
As a matter of law, I further instruct you that this will is presumed to have
been obtained by the undue influence of Virgil S. Whittum, due to the existence of
the power of attorney granted by the decedent to Virgil S. Whittum.
Now, this type presumption may be overcome if it is shown by Virgil S.
Whittum, by clear and convincing evidence, that the decedent received independent
advice regarding the will’s provisions from a disinterested person having full
knowledge of the facts and/or clear and convincing evidence of the fairness of the
transaction. That is fairness to the legal rights and true wishes of Alline Glasgow,
the decedent.
To prove an issue by clear and convincing evidence, that party having that
burden must clearly show that there’s no serious or substantial doubt about the
conclusions that the party is attempting to prove.
The charge, as given by the trial court, is a correct statement of the law of Tennessee.
Appellants assert that since the power of attorney nominated Virgil Whittum as attorney in fact and
the will left the bulk of the estate to Norma Jean Biggs Whittum, the power of attorney did not
trigger the presumption of undue influence because Norma Jean Biggs Whittum did not hold the
power of attorney. This assertion is based upon the erroneous assumption that undue influence must
be exercised directly by the donee.
It is immaterial whether undue influence is exercised directly or indirectly.
Brown v. Cobb, 53 N.M. 169, 172, 204 P.2d 264, 266 (1949). In determining
whether undue influence is present, a central focus is on the means used and the
effect upon the donor. See McElhinney v. Kelly, 67 N.M. 399, 404, 356 P.2d 113,
116 (1960) (“It is not the nature and extent of the influence, but its effect upon the
mind of the testator which determines whether it is undue influence.”) (quoting 1
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William J. Bowe & Douglas H. Parker, Page on Wills § 15.6 at 724); In re Estate of
Gonzales, 108 N.M. at 586, 775 P.2d at 1303 (ultimate issue is effect of influence on
donor). The underlying theory of the doctrine is that the donor is induced by various
means to execute an instrument that, in reality, is the will of another substituted for
that of the donor. In re Will of Ferrill, 97 N.M. at 398,. 640 P.2d at 504 (Sutin, J.,
specially concurring). We specifically reject the contention that a beneficiary must
be the one who exerts the undue influence.
Montoya v. Torres, 823 P.2d 905, 909-10 (N.M. 1991).
In a similar context, it has been held:
We next consider whether the contract between the Kennedys and Thomsen
can be set aside on the basis of the undue influence of Francis Petersen. Undue
influence by a third person renders a transaction voidable at the instance of the victim
of the undue influence if the other contracting party had reason to know of the undue
influence. See Restatement Contracts (Second) §§ 164 (comment e), 177 (comment
c) (1981). In the present case the trial court found that Kennedys had reason to know
of the undue influence practiced on Thomsen by Francis Petersen.
Kennedy v. Thomsen, 320 N.W.2d 657, 659 (Iowa App. 1982).
As observed by the Supreme Court of Alabama:
It is not essential that the grantees should have personally had any connection
with the transaction. If another, standing in confidential relation to the grantor in
position to exert a dominant influence, employs such influence in behalf of another,
however innocent, the result is the same, where the grantee parts with nothing, as in
case of a gift.
Roper v. Lenoir, 11 So.2d 361, 362 (Ala. 1943).
See also Restatement Contracts (2d) §§ 164, 177.
Aside from the fact that the charge as given by the trial judge provided that mere influence
was not sufficient to vitiate the will, the difficulty with the special request relative to the right to fair
argument and persuasion in order to induce a will is that no evidence appears in the record of any
such persuasive efforts by Norma Jean Biggs Whittum. She testified:
Q. Now, your mother, when your father died, your stepfather, you and
Virgil took control of your mother’s affairs, didn’t you?
A. Virgil took control of my mother’s affairs. I told Mama that I didn’t
want to have anything to do with it, because I knowed how the boys was, and she said
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I don’t want you being involved in it, because you’ve got enough just to take care of
me.
Q. And you believed, and you witnessed and you saw your husband,
Virgil, take over your mother’s affairs.
A. I saw him do what my mother asked him to do.
Q. Now, when your stepfather died and your mother started living with
you, you started receiving $200 a week from her; is that not right?
A. That is true, but that money - - wait just a minute. That money was
used for pads, groceries, her juices and special things that she wanted to eat.
....
Q. Now, when she died, you knew about the will, didn’t you?
A. When she died, yeah, Virgil went and got it.
Q. In fact, within three weeks after she made the Will, you knew about
the Will?
A. I knew it was a Will, but I did not know what was in the Will. I told
her that I did not want to know what was in it.
Q. Well, do you remember your husband testifying yesterday that there
was this suitcase, that he had a briefcase and that he had the Will in there and that he
read it to her?
A. Yeah, but I wasn’t there.
Q. Okay. So you didn’t want to look at the Will or have anything to do
with the Will because you knew you were in the Will, didn’t you, ma’am?
A. I didn’t want to have anything to do with it. I didn’t care anything
about it. All I cared about was taking care of my mother and other responsibilities
that I had.
The charge to the jury was a clear and correct statement of the law of Tennessee which fairly
defines the legal issues involved in this case and does not mislead the jury. See Otis v. Cambridge
Mutual Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn. 1992).
The denial of the special request was not error.
The case was fairly tried on issues of material fact and the jury properly charged. The jury
could have found either way on the issue of undue influence and their verdict, approved by the trial
judge, would withstand appellate challenge. The judgment of the trial court is in all respects
affirmed and the case is remanded for such further proceedings as may be necessary.
Costs of the cause are assessed against Appellants.
___________________________________
WILLIAM B. CAIN, JUDGE
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