in the Estate of James A. Elders Sr. ( 2012 )


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  •                                  NUMBER 13-11-00467-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    IN THE ESTATE OF JAMES A. ELDERS SR., DECEASED
    On appeal from the County Court at Law
    of McLennan County, Texas.1
    MEMORANDUM OPINION
    Before Justices Rodriguez, Vela, and Perkes
    Memorandum Opinion by Justice Vela
    This is an appeal from a trial court order admitting the will of James A. Elders Sr.
    ("James Sr.") deceased, to probate as a muniment of title. Appellants, Laurie Mattson,
    James A. Elders III, and the Elders Children's Trust, argue that the trial court erred: (1) in
    finding that the evidence presented at the hearing was legally and factually sufficient to
    1
    This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to an
    order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
    show that Patricia Elders was not in default for failing to probate James Sr.'s will; (2) in
    finding that the evidence was legally and factually sufficient to show that the proponent of
    the will was not in default for failing to submit the will timely for probate; and (3) admitting
    the will to probate because more than four years had lapsed since James Sr.'s death in
    1980. We affirm.
    I. BACKGROUND
    James Sr. died on May 31, 1980. Less than four years later, Patricia Elders, his
    widow, filed an affidavit of heirship in the records of McLennan County. The affidavit of
    heirship purported to incorporate James Sr.'s last will and testament for "all legal
    purposes." Patricia was the sole beneficiary under James Sr.'s will. James and Patricia
    had two children, James Jr. and Tommy Reese ("T.R."). James Jr. died in 1999. In
    2002, Patricia executed a warranty deed transferring the acreage composing the property
    that is the subject of this case to T.R. Since that time, T.R. has paid all taxes on the
    property as well as added improvements. In 2009, the State began eminent domain
    proceedings to acquire a portion of the property. At that time, the State notified Laurie
    Mattson and James Elders III, the children of James Jr., that they might have an
    ownership interest in the property because James Sr.'s will had not been probated. T.R.
    then filed an application to probate the will as a muniment of title, which the trial court
    granted. Thereafter, the trial court entered findings of fact and conclusions of law.
    Appellants timely appealed the order.
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    II. STANDARD OF REVIEW
    In this appeal, appellants challenge the legal and factual sufficiency of the
    evidence to show that Patricia and T.R. were not in default for failing to timely probate the
    will within the time allowed by statute. In a bench trial, findings of fact have the same
    force and dignity as a jury's verdict upon jury questions. In re C.R.O., 
    96 S.W.3d 442
    ,
    447 (Tex. App.—Amarillo 2002, pet. denied).           However, findings of fact are not
    conclusive when there is a complete record. Leax v. Leax, 
    305 S.W.3d 22
    , 28 (Tex.
    App.—Houston [1st Dist.] 2009, pet. denied). When a complete reporter's record is filed,
    the trial court's factual findings are reviewable for legal and factual sufficiency under the
    same standards that are applied in reviewing the sufficiency of the evidence supporting
    jury findings. In re 
    C.R.O., 96 S.W.3d at 447
    . A trial court has the right to believe or
    disbelieve testimony that comes before it. See Farr v. Bell, 460 S.W 2d 431, 435 (Tex.
    App.—Dallas 1970, writ ref'd n.r.e.).
    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). A trial court's conclusions of law
    may not be challenged for factual sufficiency; however, a reviewing court may review the
    conclusions drawn from the facts to determine their correctness. 
    Id. Pursuant to
    the Texas Probate Code, a will must be submitted for probate within
    four years of the testator's death. TEX. PROB. CODE ANN. § 73(a) (West 2003). After
    expiration of the four-year period, a will may be probated as a muniment of title as long as
    the will's proponent is not "in default." Id.; see Wycough v. Bennett, 
    510 S.W.2d 112
    ,
    115 (Tex. Civ. App.—Dallas 1974, writ ref'd n.r.e.). The term "default," as used in
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    connection with offering a will for probate, means the absence of reasonable diligence on
    the part of the party offering the instrument. In Re Estate of Campbell, 
    343 S.W.3d 899
    ,
    903 (Tex. App.—Amarillo 2011, no pet.).
    Whether the proponent of a will is in default is normally a question of fact.
    Chovanec v. Chovanec, 
    881 S.W.2d 135
    , 137 (Tex. App.—Houston [1st Dist.] 1994, no
    writ). Texas case law leans heavily in favor of allowing a will to be offered as a muniment
    of title where the proponent offers a reasonable excuse for failing to probate the will
    during the statutory period.    
    Id. Indeed, the
    proponent's belief that probate was
    unnecessary has been found sufficient. Id.; Kamoos v. Woodward, 
    570 S.W.2d 6
    , 9
    (Tex. Civ. App.—San Antonio 1978, writ ref'd n.r.e.).
    III. ANALYSIS
    The trial court made the following fact findings, which we paraphrase as follows:
    (1)    While four years had elapsed since James Sr.'s death, T.R. was not in
    default.
    (2)    T.R. received the property as grantee under a deed from his mother who
    was James Sr.'s surviving spouse. Thus, T.R. is not attributed default or
    lack of diligence.
    (3)    Patricia believed she had full ownership of the property after James Sr.'s
    death.
    (4)    Patricia was not in default because she believed that filing the will with the
    affidavit of heirship was sufficient to effectuate the terms of the will.
    (5)    T.R. first learned of potential title issues when the condemnation
    proceedings were going on.
    (6)    T.R. promptly applied to probate the will after being apprised of potential
    issues.
    (7)    The family believed that Patricia had been the full owner of the property
    4
    after James Sr.'s death.
    (8)     The family believed that T.R. was the full owner of the property after having
    been deeded the property by his mother.
    (9)     Appellants had not believed or expected that they had rights in the property
    until the State of Texas informed them about potential title issues.
    (10)    T.R. paid all property taxes and had been responsible for all maintenance
    on the property since 2002.
    (11)    The will should be admitted to probate.
    Appellants argue that contrary to the trial court's findings, the record reflects that
    Patricia intended not to probate the will so that the family property would pass through
    intestate succession. T.R. counters that he took the property as a grantee, thus, the trial
    court only needed to determine whether he acted in a reasonably diligent manner in
    seeking to admit his father's will to probate, and no other person's default may be
    attributable to him. We agree with T.R.'s position.
    The trial court found that T.R. first learned of potential title issues when the
    condemnation proceedings began in 2009 and promptly applied to probate the will after
    being apprised of potential issues. This finding is supported by T.R.'s trial testimony that
    prior to the condemnation action by the State, he did not know that there was a possibility
    that he did not own 100% of the property. Within a few months, and upon advice of
    counsel, he filed an action to probate the will as a muniment of title.
    In Estate of McGrew, the trial court admitted a will to probate after a request was
    made by the Gibsons, who were subsequent purchasers of property. 
    906 S.W.2d 53
    , 56
    (Tex. App.—Tyler 1995, writ denied). The McGrew appellants argued that the trial court
    erred in admitting the will to probate because the will beneficiary had waived her rights by
    5
    not timely admitting it to probate.      
    Id. The Tyler
    court held "the issue of whether
    Kathleen McGrew was in default in failing to present the will for probate, or whether she
    waived her rights under the will is not applicable since the will was probated as a
    muniment of title. When probating a will for the purpose of establishing a link in a chain
    of title, 'only the default of the party applying for probate of the will is in issue.'" 
    Id. (citing Fortinberry
    v. Fortinberry, 
    326 S.W.2d 717
    , 719 (Tex. Civ. App.—Waco 1959, writ
    ref'd n.r.e.). The default of one proponent does not cut off the right of another proponent,
    not in default, to probate the will as a muniment of title. 
    Id. In McGrew,
    the court found
    that the Gibsons had provided justification for the delay. 
    Id. at 55.
    They did not acquire
    the property until ten years later and had no knowledge that someone claimed an interest
    in the property. 
    Id. Applying reasoning
    applicable to the trial court's findings here, we
    conclude there was sufficient evidence before the trial court to have based its finding that
    T.R. was not in default in failing to probate the will within four years.
    Even if we look to Patricia's diligence, there is, nevertheless, some evidence that
    she was not in default in failing to probate her husband's will. A proponent's belief that
    probate is unnecessary has been found sufficient.           See 
    Kamoos, 570 S.W.2d at 9
    .
    Here, Patricia was the sole beneficiary of the will, and the affidavit of heirship stated that it
    was incorporating the will by reference, and that probate of the will would not be
    anticipated because all debts against the estate had been paid and there was no need to
    probate it. This evidence is sufficient to support the trial court's findings. We overrule
    appellants' issues.
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    IV. CONCLUSION
    The judgment of the trial court is affirmed.
    ROSE VELA
    Justice
    Delivered and filed the
    29th day of August, 2012.
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