NO. 07-10-0151-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JUNE 14, 2011
IN THE ESTATE OF JAMES E. CAMPBELL, DECEASED
FROM THE COUNTY COURT AT LAW NO. 2 OF JOHNSON COUNTY1
NO. P200919946; HONORABLE JERRY D. WEBBER, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
OPINION
Appellant, Eva Brown, appeals from an order permitting the will of James E.
Campbell to be admitted to probate as a muniment of title. Brown asserts the trial court
erred by admitting Campbell's will to probate because (1) the evidence was legally and
factually insufficient to establish that the proponent of the will, Danny Ray Rumsey,
Appellee, was not in "default" for failing to file the will for probate within four years of the
1 Originally appealed to the 10th Court of Appeals (Waco), this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov=t Code Ann. ' 73.001 (West 2005). We are unaware of any conflict between precedent of the 10th Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. death of the testator as required by § 73(a) of the Texas Probate Code,2 and (2) the trial
court erred, as a matter of law, by concluding that the will was properly admissible to
probate as a muniment of title. We affirm.
Background
James E. Campbell was first married in 1945 and fathered four children. Brown
is Campbell's daughter by that first marriage. He was divorced in 1958, and
subsequently married Freda, who already had children. Rumsey is one of Campbell's
two stepsons from that second marriage. In January 1977, Campbell and Freda both
executed wills using the same witnesses. Campbell's will provided that, if Freda
survived him, she would receive all his property and estate. Campbell also appointed
Freda as his Independent Executrix. In the event Freda predeceased Campbell, his will
provided that his two stepsons would share equally in his estate and Rumsey would
serve as his Independent Executor. His will further "direct[ed] that no action be taken in
the County Court or any other court relative to this will or my estate, except to probate
the will and return an inventory, appraisement and list of claims."
In January 2002, Campbell passed away. At the time of his death, Campbell was
survived by his wife, Freda, and they owned real property in Johnson County, Texas.
Freda did not submit Campbell's will for probate and, approximately six years later in
October 2008, she passed away. In July 2009, Rumsey sought to probate Campbell's
will as a muniment of title. Brown subsequently filed an answer and opposition to the
2 See Tex. Prob. Code Ann. § 73(a) (West 2003). For convenience, throughout the remainder of this opinion, references to the provisions of the Texas Probate Code will be cited simply as "section ____" and/or "§ ____."
2 probate of that will asserting that Rumsey was in default for failing to offer the will for
probate within four years of Campbell's death.
On December 17, 2009, the trial court held a hearing on Rumsey's application to
determine whether Campbell's will should be offered to probate. Rumsey testified that,
in December 2008, he and his brother, Phillip, went to Freda's house to look around and
see if there was anything they needed to take care of due to her passing. They found
Campbell's and Freda's wills in a lock box in Freda's office. Thereafter, Rumsey sought
to probate Campbell's will as a muniment of title.
Rumsey testified he first became aware of Campbell's will when he discovered it
in Freda's lock box in December of 2008. Until then, he had made no inquiry into
whether Campbell even had a will. Rumsey described his mother as being fairly
organized, private and meticulous. He concluded that Freda must have had knowledge
of Campbell's will because she kept it in a lock box containing her own will and he
assumed she could have probated the will.
Brown testified Freda knew her husband executed a will in January 1977 and
kept all her documents in a fireproof safe box. She also testified that Freda was very
organized. After Campbell's death, Brown accompanied Freda to a bank to open a
safety deposit box. Brown waited in the car until Freda returned carrying a money bag
containing papers. Brown asked about her father's insurance and whether he had a
will. Freda never answered but instead handed Brown two documents -- her father's
"do-not-resuscitate" certificate and a military certificate dated in the 1940s.
3 In January 2010, the trial court issued an order admitting Campbell's will to
probate finding that, although more than four years had elapsed between Campbell's
date of death and the application for probate, Rumsey "[was] not in default." Brown
subsequently requested that the trial court make findings of fact and conclusions of law,
and, in February 2010, the trial court responded. In its findings of fact, the trial court
found, in pertinent part, that Rumsey "was not in possession of the will or aware of the
will prior to December 2008" and "[did] not know why the will was not filed for probate."
Accordingly, the trial court concluded as a matter of law that Rumsey, the party applying
for probate of the will, "was not in default for failing to offer Decedent's will for probate
within four years of the date of Decedent's death." This appeal followed.
Applicable Law
In pertinent part, § 73 of the Texas Probate Code provides as follows:
(a) No will shall be admitted to probate after the lapse of four years from the death of the testator unless it be shown by proof that the party applying for such probate was not in default in failing to present same for probate within four years aforesaid; and in no case shall letters testamentary be issued where a will is admitted to probate after the lapse of four years from the death of the testator.
(Emphasis added).
The language of § 73(a) was added to the Revised Civil Statutes in the 1879
revision of article 3248 and has remained unchanged since that time.3 See Abrams v.
3 We note that in enacting § 256.003(a) of the Estates Code, the Legislature has slightly altered the language that has now been in use for over 130 years. See Act of May 26, 2009, 81st Leg., R.S., ch. 680, 2009 Tex. Gen. Laws 1512, effective January 1, 2014.
4 Ross' Estate, 250 S.W. 1019, 1021 (Tex. Comm'n App. 1923).4 One purpose of the
statute is to impose a reasonable limit on the time in which the property of a person
dying testate should be distributed among his legatees, after payment of his or her
debts. In the Estate of Rothrock, 312 S.W.3d 271, 274 (Tex.App.--Tyler 2010, no pet.)
(citing Hodge v. Taylor, 87 S.W.2d 533, 535 (Tex.Civ.App.--Fort Worth 1935, writ
dism'd)). In addition, a person having custody of a will is charged with the knowledge
that it must be filed for probate within the statutory period in order to rely on it, whether
the necessity for doing so is apparent or not. Id., 312 S.W.3d at 274 (citing St. Mary's
Orphan Asylum of Tex. v. Masterson, 57 Tex.Civ.App. 646, 654, 122 S.W. 587, 591
(Tex.Civ.App.--San Antonio 1909, writ ref'd)). But see Kamoos v. Woodward, 570
S.W.2d 6, 8-9 (Tex.App.--San Antonio 1978, writ ref'd n.r.e.) (holding that proponent of
will was not in default for failing to present the will for probate within four years of the
testator's death where due to the nature of the property of which she was aware and her
limited resources, she didn't think it necessary to probate the will).
In the context of § 73(a) "default" means the failure to probate a will due to the
absence of reasonable diligence on the part of the party offering the instrument.
Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex.App.--Dallas 2003, pet. denied) (citing
House v. House, 222 S.W. 322, 325 (Tex.Civ.App.--Texarkana 1920, writ dism'd w.o.j.);
4 As discussed more fully hereinbelow, the precedential value of this opinion is subject to some debate. Although some citations to this opinion have indicated that the Texas Supreme Court took no action on the decision of the Texas Commission of Appeals, other citations have indicated that the opinion of the Commission was "adopted," while still others have indicated that only the judgment of the Commission was adopted. The better reasoned view is that the Supreme Court took no action. Therefore, it cannot be stated with certainty whether the reasoning or specific holding of the Commission was approved or adopted by the Texas Supreme Court. See The Greenbook: Texas Rules of Form 5.2 (Texas Law Review Ass'n ed., 12th ed. 2010).
5 Kamoos, 570 S.W.2d at 8. The burden is on the party applying for probate to show he
or she was not in "default" by failing to present a will for probate within the proper time.
In the Estate of Rothrock, 312 S.W.3d at 274. The question of whether the party
applying for probate is in default is ordinarily a question of fact for the trial court.
Kamoos, 570 S.W.2d at 7-8 (citing Armstrong v. Carter, 291 S.W. 626 (Tex.Civ.App.--
Waco 1927, no writ). In Armstrong, the Waco Court said:
Under [the prior statute] it is provided that a will may be probated after four years, if it is shown that the party applying for such probate was not in default in offering same for probate before the four years had elapsed. Clearly, the intention of the Legislature was to lodge with the trial court or jury the power to determine as a question of fact, where there is any evidence raising the issue, whether there was a default. The tendency of our courts has been from the earliest decisions to permit wills to be filed after the four-year period, where there is any evidence of a probative force which would excuse the failure to offer the will sooner.
(Citations omitted). Id., 291 S.W. at 627.
Generally, a party applying for probate would not be considered personally in
default if he or she did not know of the existence of the will provided such proponent
was not negligent in failing to discover whether there was a will. Schindler, 119 S.W.3d
at 929. Furthermore, § 73(a) has repeatedly been interpreted as providing that the
default of another does not preclude a non-defaulting applicant from offering a will for
probate as a muniment of title. In re Williams, 111 S.W.3d 259, 263 (Tex.App.--
Texarkana 2003, no pet.); Masterson, 122 S.W. at 591 (holding that the party applying
for probate must be judged by his own conduct and circumstances in evaluating
whether his burden has been met regarding a finding that he is not in "default" for failing
to present a will for probate within the proper time). But see Brown v. Byrd, 512 S.W.2d
6 758, 760-61 (Tex.Civ.App.--Tyler 1974, no writ) (finding that, if any devisee was in
default, such default would bar his or her descendants from any right to have such will
probated); Abrams, 250 S.W. at 1019; Faris v. Faris, 138 S.W.2d 830 (Tex.Civ.App.
Dallas 1940, writ ref'd); and Matt v. Ward, 255 S.W. 794 (Tex.Civ.App.--Fort Worth
1923, writ ref'd).
Standard of Review - Issue One
By her first issue, Brown contends the evidence was legally and factually
insufficient to establish that Rumsey was not in "default" for failing to file Campbell's will
for probate within four years of his death. In conducting a legal sufficiency review, 5 we
must consider the evidence in the light most favorable to the challenged finding, indulge
every reasonable inference to support it; City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005), and credit favorable evidence if a reasonable factfinder could and
disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. A
challenge to legal sufficiency will be sustained when, among other things, the evidence
offered to establish a vital fact does not exceed a scintilla.6 Kroger Tex. Ltd. P'ship v.
Suberu, 216 S.W.3d 788, 793 (Tex. 2006). Furthermore, so long as the evidence falls
within the zone of reasonable disagreement, we may not invade the role of the
factfinder, who alone determines the credibility of witnesses, the weight to be given their
testimony, and whether to accept or reject all or part of their testimony. City of Keller,
5 When both legal and factual sufficiency challenges are raised on appeal, the reviewing court must first examine the legal sufficiency of the evidence. See Glover v. Tex. Gen. Indemnity Co., 619 S.W.2d 400, 401 (Tex. 1981). 6 Evidence does not exceed a scintilla if it is "so weak as to do no more than create a mere surmise or suspicion" that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
7 168 S.W.3d at 822. The final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review. Id. at 827.
An assertion that the evidence is factually insufficient to support a fact finding
means that the evidence supporting the finding is so weak or the evidence to the
contrary is so overwhelming that the answer should be set aside and a new trial
ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In reviewing factual
sufficiency, the reviewing court must consider, examine and weigh all of the evidence in
the record. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert.
denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). In doing so, the court
no longer considers the evidence in the light most favorable to the finding; instead, the
court considers and weighs all the evidence, and sets aside the disputed finding only if it
is so contrary to the great weight and preponderance of the evidence as to be clearly
wrong and unjust. Id. at 407; Gooch v. American Sling Co., 902 S.W.2d 181, 183-84
(Tex.App.BFort Worth 1995, no writ).
Analysis
Because Rumsey filed the application to probate Campbell's will more than four
years after Campbell's death, it was his burden to show that he exercised reasonable
diligence in offering the will for probate, i.e., that he was not in "default." Brown's first
issue contends the trial court erred in its findings of fact because Rumsey failed to meet
that burden.
8 Here, the evidence shows that Rumsey first discovered his stepfather's will in
December of 2008, when he opened his mother's lock box shortly after her death. The
evidence further shows that prior to that discovery he was unaware of a need to probate
that will7 and that he offered the will for probate within seven months of its discovery.
Considering all of the evidence in the light most favorable to the judgment, we believe a
reasonable and fair-minded jurist could have found that Rumsey was reasonably
diligent and, therefore, not in default for failing to present his stepfather's will for probate
within the time allowed by § 73(a). Furthermore, we do not believe that the finding that
Rumsey was not in default is so contrary to the great weight and preponderance of the
evidence as to be clearly wrong and manifestly unjust. Accordingly, we find that the
evidence presented was both legally and factually sufficient to establish that Rumsey
was not in "default" for failing to file the will for probate within four years of Campbell's
death. Issue one is overruled.
Standard of Review - Issue Two
Brown's second issue contends the trial court erred in its conclusions of law by
misapplying the law to the facts. Brown asserts the trial court erred when it admitted
Campbell's will to probate because more than four years lapsed between Campbell's
death in 2002 and Rumsey's application for probate in 2009. In support of her
argument, she contends that because Freda was in default for having possession of
Campbell's will for six years after his death and never probating it, then Rumsey's
7 Prior to Freda's death Rumsey was neither an executor nor an "interested party" in Campbell's estate. Therefore, prior to her death, Rumsey did not have the authority to apply to have Campbell's will probated. See Tex. Prob. Code Ann. § 76 (West 2003).
9 attempt to probate that will should be barred because he is in no better position than his
mother.8 Because Freda did not probate Campbell's will, Brown asserts Campbell is
considered to have died intestate and Rumsey is entitled to no greater share from
Campbell's estate than his mother was entitled as an heir-at-law. Specifically, Brown
contends the trial court made an incorrect conclusion of law by failing to attribute
Freda's lack of diligence to Rumsey.
Rumsey contends that Freda's default cannot be imputed to him because, as the
proponent of Campbell's will, the proper issue is whether he defaulted, not whether
Freda defaulted. Because he was unaware of Campbell's will until its discovery in
Freda's lockbox in December of 2008, and he offered it for probate within a reasonable
time of his acquiring an interest in the property and learning of the existence of
Campbell's will, he is not in "default" within the meaning of § 73(a). Accordingly,
Rumsey asserts the trial court properly found that he was not in default.
A trial court's conclusions of law are reviewed de novo. BMC Software Belgium,
N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An appellant may not challenge a
trial court's conclusions of law for factual sufficiency; however, the reviewing court may
review the trial court's legal conclusions drawn from the facts to determine their
correctness. Neufeld v. Hudnall, No. 07-09-00350-CV, 2010 Tex. App. LEXIS 5601, at
*4 (Tex.App.—Amarillo July 16, 2010, pet. denied) (mem.op.); Mustang Amusements,
8 It should be noted that in its formal Findings of Fact and Conclusions of Law the trial court never specifically found that Freda was in default and Brown never requested additional findings of fact or conclusions of law.
10 Inc. v. Sinclair, No. 10-07-00362-CV, 2009 Tex. App. LEXIS 8338, at *8-9 (Tex.App.—
Waco Oct. 28, 2009, no pet.) (mem. op.).
In taking the position that the trial court erred by failing to attribute Freda's lack of
diligence to Rumsey, Brown relies heavily upon two cases: In re Estate of Williams, 111
S.W.3d 259, 263 (Tex.App.--Texarkana 2003, no pet.), and Schindler v. Schindler, 119
S.W.3d 923, 929 (Tex.App.--Dallas 2003, pet. denied). As more fully discussed below,
both Williams and Schindler involve fact situations where the title to real property is
impacted by events occurring after the date of death of the testator but before the
application for probate, where admitting the will to probate operates so as to work an
injustice pertaining to the ownership of that property. Because court decisions dealing
with this issue have shown considerable disarray and because we believe that both
cases relied upon by Brown are distinguishable from the facts of this case, we conclude
that our decision is not controlled by their holdings.
In re Estate of Williams
We believe that the holding in Williams does not support Brown's conclusion.
Brown cites Williams for the proposition that "if any heir or devisee was in default, such
default would bar his or her descendants or legatees from any right to have such will
probated." However, a careful reading of the opinion shows this was not the holding of
the court. In Williams, the Texarkana Court clearly states that "[o]nly the default of the
party applying for the probate of the will is an issue." In that case, C. O. Williams
applied for and obtained probate of the will of his father, C. F. Williams, eighteen years 11 after his death. In reversing the decision of the trial court and denying probate of the
will, the appellate court said, "[b]ecause C. O. was in default in failing to present the will
within the four-year period, the trial court erred in admitting the will to probate." In the
final analysis, no default was imputed to anyone and the will in question was denied
probate because the party applying for probate of the will was himself in default.
Schindler v. Schindler
As to Schindler, while we acknowledge the Dallas Court of Appeals did state, "if
any heir or devisee was in default, such default would bar his or her descendants or
legatees from any right to have such will probated," 119 S.W.3d at 929, we do not
believe that this opinion, nor the three cases cited in support of this statement,9 should
be read as mandating the inflexible, automatic imputation of default in every case.
Under that standard, before a will could be probated as a muniment of title more than
four years after the death of the testator, the proponent of a will would have the burden
of showing that every person from whom he or she inherited an interest was not in
default. Such a requirement would be contrary to the long standing practice in Texas of
admitting wills to probate as a muniment of title, more than four years after the testator's
death, where to do so would not work an injustice and the proponent of the will can
establish reasonable diligence on his or her part alone in offering the will for probate.
See Kamoos, 570 S.W.2d at 7.
The dispute in Schindler involved the probate of the second will of Ruby
Schindler. There, the only non-defaulting proponent stood to inherit property that had 9 See Abrams, 250 S.W. at 1022; Faris, 138 S.W.2d at 832; and Matt, 255 S.W. at 795-96.
12 previously passed to other devisees in accordance to the terms of Ruby's earlier
probated original will. Because the proponent's putative predecessor in title had not
only "defaulted" in offering the second will for probate, but had also actually probated
the original will, in order to avoid an unjust result, the trial court attributed the lack of
diligence on the part of the proponent's predecessor in title to the proponent. Those
facts alone significantly differentiate Schindler from the facts of this case.
In Abrams, forty-nine years after the death of the testator, the trial court denied
probate of the will of Sarah Ross. The intermediate appellate court reversed that
decision on procedural grounds and remanded the matter to the trial court so that
further testimony could be offered pertaining to the diligence of the will proponents and
the standing of the will contestants. In affirming the decision of the intermediate
appellate court to remand the matter to the trial court for further proceedings, the Texas
Commission of Appeals offered, as dicta, an opinion as to future burden the proponents
faced in establishing that they were not in default for failing to timely offer the will for
probate. Due to events affecting title to real property the subject of the probate estate,
which occurred during the intervening forty-nine years, the Commission suggested that
the default of a predecessor in title would bar his or her descendants from any right to
have the will probated. Under the facts of that case, a contrary result would have
worked an injustice.
In Faris, the testator died leaving a will that bequeathed his entire estate to his
wife, Sophia. With full knowledge of the existence of the will, Sophia put it in her lock
box where it remained until her death, nearly twenty years later. After her death,
13 Ellsworth Faris, her son and the proponent of the will, withdrew the will from his
mother's lock box and offered it in probate. The court of appeals affirmed the trial
court's decision to deny probate of the will as a muniment of title holding that Sophia
had abandoned any rights she might have had under the will by not offering it for
probate while it was in her possession. The court reasoned that "it would be against the
public policy of this State to allow a will to be probated some nineteen years after the
death of the testator . . . ." Faris, 138 S.W.2d at 831. In its formal "Findings of Fact,"
the trial court found that Ellsworth also had knowledge of the existence of the will during
that critical nineteen-year period. Under these circumstances, because it could be said
that the proponent of the will also failed to use reasonable diligence in offering the will
for probate, the court's decision did not necessarily turn on the transfer of default from
Sophia to her descendant.
Finally, in Matt v. Ward, based on the principle that an heir occupies the place of
his or her ancestor, the appellate court concluded that because the proponent's mother
was in default, the proponent would be precluded from probating a will after four years.
In that case, unlike here, the trial court denied probate of the will after the proponent
unsuccessfully argued that the dicta in Abrams did not control.
Because we believe that the strict application of the above-referenced quote from
Schindler misconstrues § 73(a), misapplies the authorities cited, and is contrary to a
great body of law allowing a non-defaulting proponent to offer a will for probate more
than four years after the death of the testator when intervening events would not work
an injustice or frustrate the intent of the testator, we decline to apply the holding of our
14 sister court to the facts of this case and, instead, choose to follow Armstrong, Kamoos
and their progeny.
Accordingly, we are unable to say that the trial court erroneously applied the law
to the facts of this case. Issue two is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle Justice