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.
                                  )
                                  )
                                            FILED
                                  )
                                               July 1, 1998

                                           Cecil W. Crowson
                                          Appellate Court Clerk

                 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
                               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.

                                       -2-
          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,


                                        -3-
          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

                                         -4-
         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.



                                        -5-
          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).


                                        -6-
          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 common-
law 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 common-
          law 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

                                        -7-
         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);


                                       -8-
          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.



                                        -9-
       Costs of this cause are assessed against the appellant.




________________________________
                                          WILLIAM B. CAIN, JUDGE




CONCUR:



_________________________________
HENRY F. TODD, PRESIDING JUDGE



_________________________________
BEN H. CANTRELL, JUDGE




                                   -10-
