Estate of Wanda Meacham Rhea ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-283-CV
ESTATE OF WANDA MEACHAM RHEA,
DECEASED
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FROM THE COUNTY COURT OF YOUNG COUNTY
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OPINION
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Appellants Charlotte Bonner Barrett and Trenton Bonner, independent co-
executors of the estate of Wanda Meacham Rhea, deceased, appeal from a trial
court order aw arding Appellee Charles Rhea a family allowance of $20,000;
$5,000 in lieu of exempt property; and the use of Wanda’s wedding ring during
his lifetime. We modify the trial court’s order and affirm the order as modified.
Background
Charles, who is eighty-seven years old, and Wanda married late in life and
had been married for just under nine years when Wanda died in June 2005 at
the age of seventy-nine. Wanda left a will bequeathing $10,000 cash to each
of her grandchildren and step-grandchildren, all of her jewelry and personal
effects to Charlotte, and the remainder of her estate to Charlotte and Trenton.
In October 2005, Charlotte and Trenton notified Charles of their intent to
remove Wanda’s personal property from the marital home. Charles labeled
some of the possessions in the home to mark his own separate property, then
left the house from November 11 through November 14. Charlotte and Trenton
spent those four days moving possessions out of the home; they estimated the
value of the furniture and other possessions removed from the home at
$50,000. Charles testified that they took towels, sheets, pillow cases,
blankets, dishes, cooking utensils, pots and pans, and even toilet paper, half
boxes of Kleenex, used bars of soap, and all but one or two books. They left
him one chair, a television, a couple of table lamps, one set of glasses, one set
of china, and some eating utensils. Charles testified that he was required to
purchase a refrigerator, a bed, a table and chairs, a washer and dryer, a
microwave oven, a vacuum cleaner, glasses, dishes, and pans “to maintain
. . . some semblance of the same standard of living” to which he and Wanda
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had grown accustomed during their marriage. He said he spent $3,700 “to get
back [to] where [he] could just exist there.”
In December 2006, shortly after Charlotte and Trenton filed an inventory,
appraisement, and list of claims, Charles filed (1) an application for a family
allowance of $30,000 and (2) an application to set aside exempt
property—including many of the items removed by Charlotte and Trenton—or,
alternatively, for an allowance of $5,000 in lieu of the removed personal
property. The trial court awarded Charles a $20,000 family allowance; $5,000
in lieu of exempt property; and use and possession of Wanda’s wedding ring
during his lifetime “as part of the exempt property.” Charlotte and Trenton filed
this appeal.
Standard of Review
In a trial to the court where no findings of fact or conclusions of law are
filed, the trial court’s judgment implies all findings of fact necessary to support
it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). Where a
reporter’s record is filed, however, these implied findings are not conclusive,
and an appellant may challenge them by raising both legal and factual
sufficiency of the evidence issues.
An argument that the evidence establishes conclusively the opposite of
a fact essential to the trial court’s judgment is a challenge to the legal
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sufficiency of the evidence. Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). When a
party without the burden of proof at trial challenges the legal sufficiency of the
evidence, we consider all of the evidence in the light most favorable to the
prevailing party, indulging every reasonable inference in that party’s favor.
Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.
1998). If there is any evidence of probative force to support the finding, i.e.,
more than a mere scintilla, we will overrule the issue. Formosa Plastics Corp.
USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)
Family Allowance
In their first issue, Charlotte and Trenton argue that the trial court erred
by granting Charles a $20,000 family allowance because Charles answered
interrogatories showing that he had monthly income of $2,706 and monthly
expenses of $1,570, thereby conclusively proving that he owned separate
property adequate to provide for his maintenance.
Before a trial court approves an estate’s inventory, appraisement, and list
of claims, a surviving spouse may apply to the court to have the court fix a
family allowance by filing an application and a verified affidavit describing the
amount necessary for the maintenance of the surviving spouse for one year
after the date of the death of the decedent and describing the spouse’s
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separate property. T EX. P ROB. C ODE A NN. § 286(b) (Vernon 2003). The trial
court must fix a family allowance for the support of the surviving spouse in an
amount sufficient for the spouse’s maintenance for one year from the time of
the testator’s death with regard to the facts or circumstances then existing and
those anticipated to exist during the first year after such death. Id. §§ 286(b),
287 (Vernon 2003). But when the surviving spouse has separate property
adequate to the survivor’s maintenance, the trial court may not award an
allowance. Id. § 288 (Vernon 2003). The applicant bears the burden of proof
by a preponderance of the evidence at any hearing on the application. Id.
§ 286. When determining whether a surviving spouse is entitled to an
allowance and, if so, in what amount, the trial court must consider the whole
condition of the estate during the first year after the spouse’s death, the
necessities of the surviving spouse, and the circumstances to which he or she
has been accustomed. Churchhill v. Churchhill, 780 S.W.2d 913, 916 (Tex.
App.—Fort Worth 1989, no writ) (citing Pace v. Eoff, 48 S.W.2d 956, 960
(Tex. Comm’n App. 1932, judgment adopted)).
The inventory, appraisement, and list of claims filed by Charlotte and
Trenton listed assets in Wanda’s estate with a total value of $847,601 and no
liabilities. In answers to interrogatories served by Charlotte and Trenton,
Charles itemized his income and expenses, and his income of $2,706 exceeded
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his expenses of $1,570 by $1,136 per month. But it is undisputed that
Charlotte and Trenton removed $50,000 worth of Wanda’s possessions from
the marital home, including necessities such as the beds, bedding, the
refrigerator, dishes, cooking utensils, and most of the furniture—all of which
figure into the calculus of the circumstances to which Charles was accustomed
during Wanda’s life. At the time of trial, Charles had spent $3,700 on
necessities to “get back to where [he] could just exist” in the marital home.
Moreover, he testified that before her death, Wanda contributed $2,000 per
month to their joint checking account. To the extent the $50,000 of property
removed from the marital home reflects the circumstances to which Charles
was accustomed beyond mere necessities, his $1,136 per month—$13,632 per
year—surplus income was inadequate to return him to those circumstances in
the year following Wanda’s death. See Churchill, 780 S.W.2d at 916 (holding
evidence legally and factually sufficient to support allowance of $30,000 when
widow had separate annual income of $34,161 per year but was accustomed
to spending $18,000–24,000 per year on golf tournaments).
Charlotte and Trenton rely on Noble v. Noble, 636 S.W.2d 551, 552
(Tex. Civ. App.—San Antonio 1982, no writ) and McCanless v. Devenport, 40
S.W.2d 903, 906 (Tex. Civ. App.—Dallas 1931, no writ) to support their
argument that Charles’s income is conclusively adequate to provide for his
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maintenance. Both cases are distinguishable. In Noble, the trial court found
that the decedent’s widow required $11,428 for maintenance in the year
following her husband’s death and had income from Social Security, a pension,
and interest on savings of $6,840 per year, and the court awarded her an
allowance of $4,588. 636 S.W.2d at 552. The court of appeals reversed the
award, holding that the widow was not entitled to an allowance because—in
addition to her income—she owned extensive separate property worth at least
$40,000, including $35,000 in a savings account, $5,000 in treasury bills, and
twenty-nine acres of land. Id. By contrast, in this case, there is no evidence
that Charles owned any separate property apart from the few furnishings
Charlotte left in the marital residence, some tool boxes, and the assets—Social
Security, two pensions, and an annuity—that generated his monthly income.
In McCanless, the trial court awarded a decedent’s widow an allowance of
$250. 40 S.W.2d at 906. The court of appeals reversed the award because
the widow testified that she had collected a $989 life insurance policy upon the
decedent’s death, received $8.00 per month in income from rental property,
and had not had to borrow money in the year following her husband’s death.
Id. Thus, the widow’s testimony showed that she possessed funds far in
excess of what the trial court deemed necessary for her maintenance. See id.
But in the case before us, the trial court found that Charles required $20,000
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for his maintenance, far more than his income after deducting expenses for
necessities. Moreover, McCanless preceded Pace and does not discuss the rule
articulated in the latter case that the trial court must consider not only the
survivor’s necessities but the conditions of life to which the survivor was
accustomed before the decedent’s death. See id.; Pace, 48 S.W.2d at 960.
Considering the evidence in the light most favorable to the trial court’s
allowance order, we hold that Charles’s monthly surplus income was not—as
Charlotte and Trenton contend—conclusive proof of means adequate to provide
for his maintenance in the year following Wanda’s death. Therefore, we
overrule Charlotte’s and Trenton’s first issue.
Allowance in Lieu of Exempt Property and the Wedding Ring
In their second issue, Charlotte and Trenton argue that the trial court
erred by awarding Charles both a $5,000 allowance in lieu of exempt personal
property and use and possession of Wanda’s wedding ring. They contend that
a court may award a cash allowance in lieu of exempt property or set aside the
property for the surviving spouse, but it may not do both.
Before the approval of the inventory, appraisement, and list of claims, a
surviving spouse may apply to the court to have exempt property set aside.
T EX. P ROB . C ODE A NN. § 271(b) (Vernon Supp. 2007). The trial court must
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award a monetary allowance for exempt property not among the decedent’s
effects:
In case there should not be among the effects of the deceased all
or any of the specific articles exempted from execution . . . , the
court shall make a reasonable allowance in lieu thereof. . . . The
allowance in lieu of a homestead shall in no case exceed $15,000
and the allowance for other exempted property shall in no case
exceed $5,000 . . . .
Id. § 273 (Vernon 2003).
Charlotte and Trenton argue that setting aside exempt property and a
cash allowance in lieu thereof are mutually exclusive, alternative remedies; that
is, they argue that if any exempt property is on hand, the trial court may not
award an allowance in lieu of any exempt property that is not on hand. This
interpretation is contrary to the plain meaning of section 273. Under that
section, if any of the exempt property is not among the decedent’s effects, the
trial court must “make a reasonable allowance in lieu thereof.” Id. In other
words, the trial court must make an allowance for those exempt items that it
cannot set aside because they are not on hand. If some exempt items are on
hand, it must set those aside for the surviving spouse and award an allowance
in lieu of those exempt items that are not on hand.
Charlotte and Trenton rely on Barnett v. Barnett for their argument that
a trial court may not set aside exempt property and award an allowance in lieu
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of exempt property that cannot be set aside. 985 S.W.2d 520, 532 (Tex.
App.—Houston [1st Dist.] 1998), rev’d on other grounds, 67 S.W.3d 107 (Tex.
2001). The Barnett court stated broadly that “[t]he allowance is payable only
if there is no homestead or other exempt property among the effects of the
deceased.” Id. (citing Miller v. Miller, 230 S.W.2d 237, 241 (Tex. Civ.
App.—Beaumont 1950), rev'd on other grounds, 149 Tex. 543, 235 S.W.2d
624 (1951)). Barnett and Miller both involved homesteads and allowances in
lieu of homesteads, not personal property. Id.; Miller, 230 S.W.2d at 241. The
Barnett court held that a surviving spouse was not entitled to an allowance in
lieu of the homestead because there was a homestead in the decedent’s estate.
985 S.W.2d at 532. Likewise, in Miller, there was a homestead in the
decedent’s estate, and he and his widow were living there before he died; thus,
his widow was not entitled to an allowance in lieu of the homestead. 230
S.W.2d at 241. Thus, Barnett and Miller stand for the proposition that under
section 273, a surviving spouse is not entitled to an allowance in lieu of a
homestead if there is a homestead in the estate. Neither case speaks to the
kind of property involved in this case—exempt personal property—and neither
stands for the proposition that the presence of any exempt personal property
in an estate precludes an allowance for exempt personal property that is not on
hand. To the extent that the broad statement in Barnett suggests otherwise,
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it is dictum and contrary to the express language of section 273, and we
decline to apply it to the facts of this case.
Because section 273 authorized the trial court to set aside the exempt
personal property that was on hand—the ring—and award Charles an allowance
in lieu of the exempt personal property that was not on hand, we hold that the
trial court did not err by so doing. We overrule Charlotte and Trenton’s second
issue.
Life Estate in Wanda’s Wedding Ring
In their third issue, Charlotte and Trenton argue that the trial court erred
by granting Charles a life estate in Wanda’s wedding ring. The trial court
ordered that “Charles Rhea shall have use and possession of the wedding ring
worn by the Decedent during his lifetime as part of the exempt property. The
Court makes no determination of ownership or of the character of the
ownership of the ring.” Charlotte and Trenton contend that the probate code
authorizes a survivor’s use and possession of exempt personal property only
until final settlement of the estate.
Probate code section 278 provides as follows:
If, upon a final settlement of the estate, it shall appear that the
same is solvent, the exempted property, except the homestead or
any allowance in lieu thereof, shall be subject to partition and
distribution among the heirs and distributees of such estate in like
manner as the other property of the estate.
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T EX. P ROB. C ODE A NN. § 278 (Vernon 2003). Thus, a surviving spouse can
retain possession of tangible exempt property under the “use and benefit”
provision of section 271, but when the administration terminates, the
decedent’s interest in these items must pass to the decedent’s heirs or
devisees. Id.; Bolton v. Bolton, 977 S.W.2d 157, 159 (Tex. App.—Tyler 1998,
no pet.) (holding that trial court erred by granting surviving spouse fee simple
title to estate’s exempt property).
The trial court’s order is captioned in part “Order . . . Setting Aside
Exempt Property . . . for Use and Benefit of Surviving Spouse.” The only
property set aside for Charles’s use and benefit is the ring. Thus, the trial court
clearly set aside the ring under probate code section 271, but section 278
precludes the grant of a life estate in exempt property set aside under section
271. See T EX. P ROB. C ODE A NN. §§ 271, 278. Thus, the trial court erred by
granting Charles a life estate in the ring under section 271.
Charles argues that the ring is presumptively community property because
it was acquired during the marriage and that he is therefore entitled to a life
estate in the ring. In fact, Charles testified that he bought the ring before the
wedding and gave it to Wanda on their wedding day. He further testified that
they purchased a diamond for the ring several months later, with each of them
contributing half of the diamond’s cost. But the trial court specifically reserved
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the question of the ring’s ownership; therefore, the issue of whether Charles
is entitled to a life estate in the ring because it is community property is not ripe
for our review.
We sustain Charlotte and Trenton’s third issue.
Conclusion
Having overruled Charlotte and Trenton’s first and second issues and
sustained their third issue, we strike the words “during his lifetime” from the
part of the trial court’s order granting Charles the use and possession of
Wanda’s wedding ring, and we affirm the order as modified.
ANNE GARDNER
JUSTICE
PANEL A: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: June 5, 2008
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