Lesikar v. Rappeport

809 S.W.2d 246, 1991 Tex. App. LEXIS 510, 1991 WL 104140
CourtCourt of Appeals of Texas
DecidedMarch 5, 1991
Docket6-90-020-CV
StatusPublished
Cited by16 cases

This text of 809 S.W.2d 246 (Lesikar v. Rappeport) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lesikar v. Rappeport, 809 S.W.2d 246, 1991 Tex. App. LEXIS 510, 1991 WL 104140 (Tex. Ct. App. 1991).

Opinions

OPINION

CORNELIUS, Chief Justice.

Mrs. Harriet Lesikar appeals from an adverse judgment in her suit seeking distribution of the Harry Lewis, Jr. estate. The district court found there was a need for continued administration, and that a partial distribution of the estate assets should not [249]*249be made. We will reverse and remand on the partial distribution issue.

Harry G. Lewis, Jr., died in 1980. He was survived by a widow and two daughters. The younger daughter, Mrs. Lesikar, is the appellant in this suit; the older daughter, Mrs. Rappeport, and the widow, Faye Lewis, are the appellees.

Harry Lewis’ will named his two daughters as joint independent executrices and directed them to pay the debts and taxes. The will made specific bequests to Mrs. Faye Lewis and to several persons who worked for Mr. Lewis. It then left each of the two daughters a life estate in an undivided one half of the residue. On a daughter’s death, the interest devised to her for life passes to her children in fee simple. See In re Estate of Lewis, 749 S.W.2d 927 (Tex.App.—Texarkana 1988, writ denied).

About half of the estate consisted of working interests and royalties in over sixty oil and gas properties. The rest consisted of cash, stocks, bonds, cattle, and real estate, including an undivided twelve and a half percent interest in a Burnett County ranch and an interest in a Harrison County farm.

Both Mrs. Lesikar and Mrs. Rappeport qualified as co-independent executrices of the estate, but Mrs. Rappeport undertook the day-to-day administration of the estate and has continued to keep the estate open for the past ten years.

In 1986, after the estate had been in administration for more than six years, Mrs. Lesikar filed suit to compel distribution. Mrs. Rappeport counterclaimed seeking declaratory judgment that Mr. Lewis’s will prohibits distribution while either she or Mrs. Lesikar is alive. The district court so ruled in a summary judgment, and also concluded as a matter of law that there was a continuing need for administration. The judgment was appealed to this Court. In the appeal Mrs. Rappeport sought to uphold the summary judgment on the basis that the will’s residuary clause actually created a testamentary trust which prohibited any distribution during the trust’s existence. This Court ruled that the will did not create a testamentary trust, but only devised life estates to Mrs. Lesikar and Mrs. Rappeport. We also held that a continued need for administration had not been conclusively established. The case was thus remanded to determine whether a continuing need for administration existed. On remand, a jury found that there was a need for continued administration, and also that a partial distribution could not be made without committing waste or injuring creditors.

In this appeal, Mrs. Lesikar does not challenge the jury finding that there is a continuing need for administration, but she does contend that the evidence does not support the finding that a partial distribution cannot be made without committing waste or injuring creditors. Mrs. Rappe-port argues that this contention is in effect a no evidence point and thus must be reviewed according to the standard set out in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). We disagree. Since Mrs. Lesikar is attacking the adverse finding to an issue on which she had the burden of proof, we review the point as if she is asserting that she established as a matter of law that a partial distribution should be made. Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex.1989). Therefore, we will first search the record for evidence that supports the jury’s finding, disregarding all contrary evidence. If there is no evidence to support the jury’s answer, then we will examine the entire record to see if the contrary position is established as a matter of law. Sterner v. Marathon Oil Co., supra; Holley v. Watts, 629 S.W.2d 694 (Tex.1982).

Unless there is a continuing need for administration, the legatees and devi-sees in a will are entitled to have their property distributed to them, and an independent representative has no right to withhold their property from them by prolonged administration with its attendant fees and expenses. In re Estate of Lewis, supra; Matter of Estate of Minnick, 653 S.W.2d 503 (Tex.App.—Amarillo 1983, no writ); Oldham v. Keaton, 597 S.W.2d 938 (Tex.Civ.App.—Texarkana 1980, writ ref’d n.r.e.); Tex.Prob.Code Ann. § 149B (Vernon 1980 & Supp.1991). Even if there is a [250]*250continued need for administration, the court must order the distribution of “any portion of the estate that the court finds should not be subject to further administration by the independent executor.” Tex. Prob.Code Ann. § 149B.

The district court refused to order a partial distribution here because the jury found, in answer to question number two, that such a distribution could not be made without injury to creditors or waste against Mr. Lewis’ grandchildren, who are the re-maindermen under the life estates devised to Mrs. Lesikar and Mrs. Rappeport. From our examination of the evidence and the record, we conclude that the contrary of the jury answer was established as a matter of law.

Mrs. Rappeport’s position in this suit seems to be that distributing the estate’s assets to the devisees and legatees would constitute waste, and that only the estate’s cash should be considered in determining whether a partial distribution can be made without injuring the creditors. Both of these propositions are incorrect.

Waste is injury to the reversion-ary interest in land caused by the wrongful act of one lawfully in possession. Waste exists only when the one in possession destroys or permanently damages the land, which causes a loss to the persons who subsequently may be entitled to the land. R.C. Bowen Estate v. Continental Trailways, Inc., 152 Tex. 260, 256 S.W.2d 71 (1953); Erickson v. Rocco, 433 S.W.2d 746 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.); Pasulka v. Koob, 170 Ill.App.3d 191, 121 Ill.Dec. 179, 524 N.E.2d 1227 (1988). Delivering the devisee’s property to her, free from control of the estate’s representative, is not waste; indeed, it often is a way to prevent waste at the hands of the representative. See Oldham v. Keaton, supra, at 942, and cases there cited.

The fact that the devisee’s interest is a life estate does not change this rule. Of course, the life tenant might commit waste if, after receiving the property, she wrongfully uses it or invades its corpus, but that is a matter between the life tenant and the remaindermen. It is not waste for the estate representative to deliver the life estate to the devisee. Nor does the delivery of a life estate to its rightful owner under the will amount to an invasion of the corpus. In re Estate of Lewis, supra.

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Lesikar v. Rappeport
809 S.W.2d 246 (Court of Appeals of Texas, 1991)

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Bluebook (online)
809 S.W.2d 246, 1991 Tex. App. LEXIS 510, 1991 WL 104140, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lesikar-v-rappeport-texapp-1991.