Casey A. Koehler and Jennifer Phy, as Administratrix of the Estate of Evelyn Landua Koehler v. Kanda Koehler ( 2015 )

ACCEPTED
03-14-00035-CV
6999113
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/18/2015 3:47:53 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00035-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
In the Court of Appeals 9/18/2015 3:47:53 PM
For the Third Judicial District JEFFREY D. KYLE
Clerk
Sitting at Austin, Texas
In the Estate of
Evelyn Landua Koehler, Deceased
Appealed from the County Court at Law No. 1 of
Bell County, Texas
Appellant’s Brief
Requesting Oral Argument
Robert Little
State Bar No. 24050940
little@namanhowell.com
Kristen A. Mynar
State Bar No. 24074785
kmynar@namanhowell.com
Naman, Howell, Smith & Lee, PLLC
400 Austin Ave., Ste. 800
Waco, Texas 76701
254-755-4100
254-754-6331 (fax)
Attorneys for Appellant
{03569406.DOCX / }
No. 03-14-00035-CV
In the Estate of Evelyn
Landua Koehler, Deceased
Certificate of Parties and Attorneys
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Casey
A. Koehler and Jennifer Phy, Appellants, supplies the following list of parties to
the order appealed from, and the names and addresses of counsel:
Parties
Casey A. Koehler ........................................................ Contestant/Appellant
Jennifer Phy................................................................. Contestant/Appellant
Kanda Koehler. ........................................................... Applicant/Appellee
{03568446.DOC / 2} i
Attorneys
Robert Little………………………………… Trial Counsel and
Kristen Mynar Appellate Counsel for
Jeffrey A. Armstrong Contestants /Appellants
Naman, Howell, Smith & Lee, PLLC
400 Austin Ave., Ste. 800
Waco, Texas 76701
Eric Stoebner …………………………………… Trial Counsel for
Harrell & Stoebner, P.C. Applicant/Appellee
2106 Bird Creek Dr.
Temple, Texas 76502
{03568446.DOC / 2} ii
No. 03-14-00035-CV
In the Estate of Evelyn
Landua Koehler, Deceased
Request for Oral Argument
Pursuant to Rule 39.1 of the Texas Rules of Appellate Procedure, Appellants
respectfully request oral argument in this case. There is a lack of clarity from the
Courts of Appeals regarding when the rule discussed in Schindler v. Schindler,
119, S.W.3d 923, 929 (Tex. App. – Dallas 2003, pet. for review denied), which
states that if any heir or devisee is in default such default would bar his or her
descendants or legatees from any right to have such will probated. For example
that rule has been questioned in Estate of Campbell, 343 S.W.3d 899 (Tex. App. –
Amarillo 2011, no pet.), and this Court should take the opportunity to clarify when
and if the rule discussed in Schindler applies as laid out by the Dallas Court of
Appeals in that case. The parties should have an opportunity to make oral
arguments regarding this complex issue.
{03568446.DOC / 2} iii
Table of Contents
Certificate of Parties and Attorneys ..................................................................................... i
Table of Contents................................................................................................................ iv
Index of Authorities ............................................................................................................. v
Statement of the Case .......................................................................................................... 1
Statement of the Issues ........................................................................................................ 3
Issue No. 1: Appellee Kanda Koehler failed to act in a reasonably
diligent manner in admitting the handwritten Note to probate, and was
therefore in default for failing to admit that Note to probate within four
years. .......................................................................................................... 3
Issue No. 2: The default of John Koehler in failing to timely probate
the handwritten Note is imputed to Appellee Kanda Koehler, prohibiting
the probate of that handwritten Note. ....................................................................... 3
Statement of Facts ............................................................................................................... 3
Summary of the Argument .................................................................................................. 7
Standard of Review ............................................................................................................. 9
Argument of the Issues ...................................................................................................... 10
Issue No. 1: Appellee Kanda Koehler failed to act in a reasonably
diligent manner in admitting the handwritten Note to probate, and was
therefore in default for failing to admit that Note to probate within four
years. ........................................................................................................ 10
Issue No. 2: The default of John Koehler in failing to timely probate
the handwritten Note is imputed to Appellee Kanda Koehler, prohibiting
the probate of that handwritten Note. ..................................................................... 23
Prayer for Relief ................................................................................................................ 26
Certificate of Service ......................................................................................................... 27
Certificate of Compliance.................................................................................................. 28
{03568446.DOC / 2} iv
Index of Authorities
CASES
Abrams v. Estate of Sarah Ross, 250 S.W. 1019, 1022 (Tex. Comm'n App.—
1923, op. adopted) .................................................................................................. 23
BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002) ....................... 9
Brown v. Byrd, 512 S.W.2d 758 (Tex. Civ. App. Tyler 1974).................. 11, 16, 17, 20, 24
Chovanec v. Chovanec, 881 S.W.2d 135 (Tex. App. Houston 1st Dist. 1994) .... 11, 12, 22
City of Keller v. Wilson, 168 S.W.3d 802, 807 ................................................................... 9
Everett H. Rothrock, Deceased, 312 S.W.3d at 275 (citing St. Mary’s, 122
S.W. at 591) ................................................................................................ 10, 11, 22
Faris v. Faris, 138 S.W.2d 830, 831 (Tex. Civ. App.—Dallas 1940, writ ref’d) .................
............................................................................................................... 10, 23,24, 25
In re Estate of McGrew, 906 S.W.2d 53 (Tex. App. Tyler 1995) ............................... 13, 14
In re Estate of Perez, 324 S.W.3d 257 (Tex. App. El Paso 2010) ........................ 12, 13, 22
In re Estate of Williams, 111 S.W.3d 259, 263-264 (Tex. App.--Texarkana
2003 ........................................................................................................................ 10
In the Estate of Campbell, 2011 Tex. App. LEXIS 4473, 15, No. 07-10-0151-
CV (Tex. App. – Amarillo June 14, 2011, no. pet. hist.) .................................... iii, 9
Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App. San Antonio 1978) ................ 12, 22
Matt v. Ward, 255 S.W. 794, 795-96 (Tex. Civ. App.—Fort Worth 1923, writ
ref'd)........................................................................................................................ 24
Poppe v. Poppe, 2009 Tex. App. LEXIS 1630 (Tex. App. Houston 1st Dist.
Mar. 5, 2009) ........................................................................................ 14, 15, 16, 22
Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.--Dallas 2003, pet.
denied) ...........................................................................iii, 10, 11, 16, 23, 24, 25, 26
St. Mary’s Orphan Asylum of Tex. V. Masterson, 122 S.W. 587, 591 (Tex. Civ.
App.—San Antonio 1909, writ ref’d) .................................................................... 10
{03568446.DOC / 2} v
STATUTES
Section 256.003 of the Texas Estates Code......................................................................... 1
Section 73 of the Texas Probate Code .................................................................. 1, 3, 7, 10
{03568446.DOC / 2} vi
No. 03-14-00035-CV
In the Estate of Evelyn
Landua Koehler, Deceased
Appellants’ Brief – Oral Argument Requested
To the Honorable Court of Appeals:
Come now Casey A. Koehler and Jennifer Phy, Appellants in this case, and
files this initial Brief. In this Brief, every effort will be made to refer to Appellants
by name or jointly as “Appellants,” and Kanda Koehler will be referred to as
“Appellee.”
Statement of the Case
This is a case involving the improper probate of a purported Codicil to the
Last Will and Testament of Evelyn Koehler (hereinafter the “Will”) more than four
years after her death in violation of Section 256.003 of the Texas Estates Code,
formerly Section 73 of the Texas Probate Code. 1
On December 28, 2008, Evelyn Koehler passed away at the age of 93. She
left behind two different documents: (1) her Will, which was executed on May 29,
2001, and which was never revoked; and (2) a handwritten document dated
November 24, 2008 (hereinafter the “Note”), which was written and signed by
1
Throughout the Brief, references will be made to Section 73 of the Texas Probate Code.
1
{03568446.DOC / 2}
Evelyn Koehler shortly before her death. Under the terms of the Will, Casey
Koehler, one of the Appellants herein, would take a full one-third share of the
Estate of Evelyn Koehler as the only child of David Koehler, who predeceased
Evelyn Koehler. Under the terms of the handwritten Note, Casey Koehler would
take nothing from the Estate of Evelyn Koehler.
On August 21, 2012, Jennifer Phy, one of Evelyn Koehler’s granddaughters,
filed an application to probate the Will, and to have her named as Independent
Administrator of the Estate of Evelyn Koehler. In that application, Phy discussed
the Note, and made it clear that she was not offering the Note for probate because
she did not believe it was executed with the necessary formalities and solemnities
required by law to make it a valid codicil under the law. On July 29, 2013, the trial
court entered an order admitting the Will to probate, and naming Phy the
Dependent Administratrix of the Estate of Evelyn Koehler.
On August 27, 2013, Appellee, Kanda Koehler, filed an application seeking
to have the Note probated as a valid codicil to the Will. Appellee was aware of the
handwritten Note as far back as November or December, 2008, prior to the death
of Evelyn Koehler, she was aware that John Koehler, a son of Evelyn Koehler and
a relative of Appellee, was in possession of that handwritten Note, and she was
aware that John Koehler knew of the Note and refused to offer the Note for probate
prior to his death despite repeated requests by family members. Yet, she failed to
2
{03568446.DOC / 2}
make any effort to admit that handwritten Note to probate until approximately
eight months after the four year limitations period expired under Section 73 of the
Texas Probate Code.
An evidentiary hearing was held regarding that application on October 23,
2013. Following that hearing, the trial court entered an order admitting the Note to
probate as a valid handwritten codicil.
Statement of the Issues
Issue No. 1: Appellee Kanda Koehler failed to act in a reasonably diligent
manner in admitting the handwritten Note to probate, and was
therefore in default for failing to admit that Note to probate
within four years.
Issue No. 2: The default of John Koehler in failing to timely probate the
handwritten Note is imputed to Appellee Kanda Koehler,
prohibiting the probate of that handwritten Note.
Statement of Facts
On May 29, 2001, Evelyn Koehler executed her Last Will and Testament
(hereinafter the “Will”). (Appendix “A”). That Will granted a life estate to her
brother, Otto Charles Landua, in 20.1 acres in Washington County, Texas.
(Appendix “A”). The Will also provided that both Jennifer Phy and Casey Koehler
were to receive rings. (Appendix “A”). The remainder of Evelyn Koehler’s estate
was to pass to her three sons, John Koehler, David Koehler, and Charles Koehler,
in equal one-third portions. (Appendix “A”). The Will also provided that:
3
{03568446.DOC / 2}
In the event that JOHN L. KOEHLER, DAVID A. KOEHLER, or
CHARLES F. KOEHLER should predecease me, then such beneficiary’s
share of my estate shall pass to the issue of said beneficiary, share and share
alike…according to the terms and conditions hereinafter set forth and
provided.
(Appendix “A”). David Koehler predeceased Evelyn Koehler, and Casey Koehler
was his only child.
On November 24, 2008, Evelyn Koehler executed a second document
(hereinafter the “Note”), which was handwritten, and which stated:
Since the death of my son, David Koehler, it is my wish and will that the
property I share equally with my son, John L. Koehler in (unreadable),
Texas go to John L. Koehler when my property is divided upon my death
because he took care of it, of me and Charles F. Koehler, his brother, and
that as executor of my will that John L. Koehler be the trustee for Charles F.
Koehler when remaining of my property is divided to him, John L. Koehler
and Charles F. Koehler equally.
(R.R., Vol. 3, Petitioner’s Exhibit No. 1). The Note was signed by Evelyn
Koehler, and notarized by Linda Gersbach. (R.R., Vol. 3, Petitioner’s Exhibit No.
1). There were no witnesses identified on the Note, and nobody else signed the
Note. (R.R., Vol. 3, Petitioner’s Exhibit No. 1).
Evelyn Koehler died on December 28, 2008. (C.R. 21). At the time of her
death, John Koehler, her son, took possession of both the Will and the handwritten
Note, but never attempted to admit either the Will or the handwritten Note to
probate. (C.R. 23). In fact, John Koehler refused to relinquish possession of those
documents. (Appendix “C”). On March 12, 2012, Appellants filed an Application
4
{03568446.DOC / 2}
to Compel Delivery of Will, which sought to compel John Koehler to deliver to the
clerk of the court in Bell County, Texas both the Will and the handwritten Note.
(C.R. 77-79). The trial court ordered John Koehler to appear in court on April 17,
2012 in order to show cause why he should not deliver the Will or the handwritten
Note to the court. (C.R. 83). John Koehler did not appear for that hearing. (C.R.
23). On or around April 18, 2012, John Koehler committed suicide. (C.R. 23;
R.R., Vol. 2, pg. 35, lines 11-15). John Koehler left behind a holographic will,
which named either Appellee Kanda Koehler and/or Appellant Jennifer Phy as
executrix, and which provided that Appellants and Appellee would take no more
than a one-sixth interest in the remainder of his estate. (Appendix “B”).
Appellee Kanda Koehler was aware of the Note prior to Evelyn Koehler’s
death in December, 2008. (R.R., Vol. 2, pg. 50, lines 1-25). She received a copy
of that handwritten Note in June, 2012. (R.R., Vol. 2, pg. 51, line 24 through pg.
52, line 4; pg. 55, lines 16-18; R.R., Vol. 3, Contestant’s Exhibit 1). She knew at
that moment that “time was of the essence” in resolving any issues regarding
Evelyn Koehler’s estate. (R.R., Vol. 2, pg. 55, lines 19-21). Towards that end, she
hired an attorney during the summer of 2012 to work on her behalf regarding
claims related to the estate. (R.R., Vol. 2, pg. 57, lines 7-9). Yet, it was not until
August 27, 2013, over a year after she first received a copy of the handwritten Note
and hired an attorney to represent her in this matter, that she first filed an
5
{03568446.DOC / 2}
application to admit the handwritten Note as a codicil of Evelyn Koehler’s Will.
(C.R. 28-29).
On August 27, 2012, Jennifer Phy filed her Application for Independent
Administration and Letters of Administration Pursuant to Section 145(d) of the
Texas Probate Code, which sought to have her appointed as administratrix
regarding the Estate of Evelyn Koehler, and which sought to have the Will
admitted to probate. (C.R. 5-8). Phy did not seek to have the handwritten Note
admitted to probate because, “she does not believe it was executed with the
formalities and solemnities required by law to make it a valid codicil.” (C.R. 6).
On July 29, 2013, the trial court admitted the Will to probate and appointed
Jennifer Phy as the Dependent Administratrix of the Estate of Evelyn Koehler.
(C.R. 25-27). On October 23, 2013, an evidentiary hearing was held in County
Court at Law No. 1 in Bell County, Texas regarding Appellee Kanda Koehler’s
application to admit the handwritten Note as a codicil to the Will. (C.R. 61-62).
Following that hearing, the trial court entered an Order admitting the handwritten
Note as a valid codicil to Evelyn Koehler’s Will. (C.R. 61-62). The trial court
also entered Findings of Fact and Conclusions of Law, in which the court found
that Appellee Kanda Koehler was “not in ‘default’ in failing to offer the Codicil for
probate on or before” December 28, 2012 because “Kanda Koehler used and acted
with due diligence in filing her application to probate said Codicil on August 27,
6
{03568446.DOC / 2}
2013.” (C.R. 65-66). Appellants filed their Notice of Appeal on January 21, 2014
appealing the Order and the Findings of Fact and Conclusions of Law. (C.R. 67-
68).
Summary of the Argument
Former Section 73 of the Texas Probate Code provided that “[n]o 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 the same for probate within the four years aforesaid.”
The party offering the will has the burden to prove that they were not in default in
failing to admit the will to probate within the four year period prescribed by the
statute.
Appellee Kanda Koehler had standing to attempt to probate the handwritten
Note, or she could have acquired that standing by attempting to probate John
Koehler’s will in a timely manner. She knew of the existence of the handwritten
Note, knew that John Koehler had possession of that Note, and knew that John
Koehler was withholding the Note from other family members well before the
expiration of the four year limitations period. She received a copy of that
handwritten Note almost six months before the expiration of the four year
limitations period. And she retained counsel to assist her in probating that
handwritten Note almost five months before the expiration of the four year
7
{03568446.DOC / 2}
limitations period. Yet, she waited until August 27, 2013, approximately eight
months after the expiration of the four year limitation period, one year after she
received a copy and nearly 5 years after learning of the existence of the Note, to
file an application to probate that handwritten Note. And none of the excuses
offered by Appellee explain that delay. Therefore, Appellee was in default in
failing to timely file an application to probate the handwritten Note, and this Court
should reverse the trial court’s order, which permitted her to probate the Note in an
untimely manner.
Additionally, Texas law states that when the party offering a will is a
devisee of a devisee, that party can not occupy a better position than the person
from whom they are taking, and they must stand in the shoes of that party when
determining whether they are in default in failing to present a will for probate on or
before the fourth anniversary of the testator’s death. In the present case, Appellee
Kanda Koehler’s only interest in the Estate of Evelyn Koehler was as a devisee
under the will of John Koehler and as the executrix of his estate. Therefore, she
can not occupy a better position than that of John Koehler. It is undisputed that
John Koehler was aware of the handwritten Note, that he was in possession of the
handwritten Note, that he made no effort to have that Note admitted to probate,
that he refused to deliver the Will and the Note to family members when requested,
and that legal proceedings were brought to compel him to produce the Will and
8
{03568446.DOC / 2}
Note. Therefore, there is no question that John Koehler was in default for failing
to offer the Note for probate prior to his death in April, 2012. Since Appellee can
occupy no better position than John Koehler, she is also in default and the Note can
not be admitted to probate.
Standard of Review
A trial court’s conclusions of law are reviewed de novo. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In the Estate of
Campbell, 2011 Tex. App. LEXIS 4473, 15, No. 07-10-0151-CV (Tex. App. –
Amarillo June 14, 2011, no. pet. hist.). A trial court's conclusions of law may not
be challenged for factual insufficiency; however, a reviewing court may review the
court's legal conclusions drawn from the facts to determine their accuracy. BMC
Software, 83 S.W.3d at 794. If a conclusion of law is erroneous, but the court
rendered the proper judgment, the erroneous conclusion of law does not
require reversal. Id. In reviewing the legal sufficiency of the evidence, the
appellate court views the evidence in the light most favorable to fact
determinations made by the finder of fact, crediting favorable evidence if a
reasonable fact-finder could and disregarding contrary evidence unless a
reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807
(Tex. 2005).
9
{03568446.DOC / 2}
Argument of the Issues
Issue No. 1: Appellee Kanda Koehler failed to act in a reasonably diligent
manner in admitting the handwritten Note to probate, and was
therefore in default for failing to admit that Note to probate
within four years.
As a general rule, no will may be admitted to probate after four years from
the death of the testator unless proof is given that the party applying for probate
was not in default in failing to present the will for probate within the four (4) year
period. Tex. Prob. Code § 73(a); Schindler v. Schindler, 119 S.W.3d 923, 929
(Tex. App.--Dallas 2003, pet. denied); In re Estate of Williams, 111 S.W.3d 259,
263-264 (Tex. App.--Texarkana 2003, pet. denied). Texas law defines the term
“default”, as used in the statute, as a failure due to the absence of reasonable
diligence on the part of the party offering the instrument. Schindler, 119 S.W.3d at
929. This requirement under Texas law is meant to encourage the timely probate
of wills. Id. at 274 (citing St. Mary’s Orphan Asylum of Tex. V. Masterson, 122
S.W. 587, 591 (Tex. Civ. App.—San Antonio 1909, writ ref’d)); See also Faris v.
Faris, 138 S.W.2d 830, 831 (Tex. Civ. App.—Dallas 1940, writ ref’d). So, for a
will to be admitted to probate after the four year limitations period, the party
applying for probate must show that they exercised reasonable diligence in offering
the instrument for probate.
“A person having custody of a will is charged with the knowledge that it
must be filed for probate within the statutory period to rely upon it, whether the
10
{03568446.DOC / 2}
necessity for doing so is apparent to him or not.” Everett H. Rothrock, Deceased,
312 S.W.3d at 275 (citing St. Mary’s, 122 S.W. at 591). Further, it cannot be said
that a person having custody of a will and who refrains from presenting the same
within the statutory period for mere personal considerations is not in default. Id.
The burden of proof is on the proponent of a will to show that he or she is not in
default for failing to present the will within four year of the decedent’s death. See
Schindler, 119 S.W.3d at 929; Everett H. Rothrock, Deceased, 312 S.W.3d at 274;
Brown, 512 S.W.2d at 760.
In Chovanec v. Chovanec, 881 S.W.2d 135 (Tex. App. Houston—1st Dist.
1994), Judy died on August 10, 1979, leaving a will devising all of her property to
her husband, Edwin. Chovanec, 881 S.W.2d at 136. Edwin never sought to have
her will admitted to probate because he believed the property in Fayette County
was his separate property, gifted to him by his father. Id. However, this property
was actually in both Edwin and Judy’s name. Id. Thirteen years after his wife’s
death, Edwin consulted with a real estate agent who questioned him about title to
the property. Id. Thereafter, Edwin offered the will for probate as a muniment of
title to the subject property. Id. The Houston Court of Appeals held that Edwin
was not in default because: (1) he was not aware it was necessary to probate the
will because he believed the land was separate property; (2) he was unaware of any
title problems until he was alerted to those issued thirteen years after his wife’s
11
{03568446.DOC / 2}
death; and (3) once Edwin realized there may be title problems, he immediately
offered the will for probate. Id. at 137.
In Kamoos v. Woodward, 570 S.W.2d 6 (Tex. Civ. App. San Antonio 1978),
Paul died on December 14, 1971, leaving a will devising all of his property to his
wife, Hazel. Kamoos, 570 S.W.2d at 7. Hazel did not seek to probate that will
until 1976, approximately five years after Paul’s death. Id. at 6-7. The San
Antonio Court of Appeals held that Hazel was not in default despite the expiration
of the four year limitations period because: (1) due to the limited nature of the
property and resources Hazel believed Paul and herself had at the time of his death,
Hazel did not think it was necessary to probate the will; (2) that she only became
aware of the need to probate the will when she was contacted by an oil company
that advised her of a royalty interest that was part of Paul’s estate; and (3) that she
immediately went to an attorney and had the will offered for probate once she
became aware of the need to do so. Id. at 9-10.
In In re Estate of Perez, 324 S.W.3d 257 (Tex. App. El Paso 2010), Antonio
died on March 10, 1995, leaving behind two different wills. Perez, 324 S.W.3d at
259. Antonio’s children from his first marriage were beneficiaries under the “1975
Will.” Id. Antonio’s second wife, Rosa, was the sole beneficiary of the “1993
Will.” Id. Neither will was probated at the time of Antonio’s death. In 2004,
Rosa hired an attorney to probate the 1993 Will in order to allow her to transfer
12
{03568446.DOC / 2}
title in a home. Id. Instead of probating that will, the attorney recommended
transferring the property through an affidavit of heirship and a special warranty
deed. Id. In 2007, Rosa, in response to the children filing an application to declare
heirship, finally filed her own application to probate the 1993 Will as a muniment
of title. Id. The El Paso Court of Appeals held that Rosa was not in default despite
the expiration of the four year limitations period because: (1) Rosa had limited
financial resources; (2) Rosa’s education was limited to grade school; (3) Rosa did
not believe probating the 1993 Will was necessary; (4) and once she became aware
of the need to probate the 1993 Will, upon the children filing the petition to
determine heirship, she filed to probate the will within thirty days of the filing of
their petition. Id. at 263.
In In re Estate of McGrew, 906 S.W.2d 53 (Tex. App. Tyler 1995), the
testator was survived by his wife and his wife’s step-daughter. McGrew, 906
S.W.2d at 55. Following testator’s death, his wife searched for his will but was
unable to locate the will. Id. So in lieu of probating the will of her husband she
filed an “Application for Letters of Administration” with the county court, which
was granted. Id. All of that took place in Van Zandt County, Texas, which was
the county in which testator’s property was located. When testator’s wife
eventually located his will, she filed an application to probate the will in Dallas
County, Texas. Id. This application was contested by the step-daughter. Id.
13
{03568446.DOC / 2}
While the Dallas County court admitted the will to probate, that was eventually
overturned on jurisdictional grounds. Id. Testator’s wife never attempted to admit
the will for probate again. Id. She subsequently sold the property to another party,
who eventually conveyed the property by deed to Martin Gibson and Sherry
Gibson. Id. When, nearly fifteen years after the original testator’s death, the
Gibsons received notice that an heir at law of the testator was making a claim to
their property, they filed an application to probate testator’s will as a muniment of
title. Id. The step-daughter contested that application, but the trial court ultimately
admitted the will to probate and the step-daughter appealed that decision arguing
that the will could not be admitted to probate because the four year limitations
period had expired. Id. In upholding the ruling of the trial court, the Tyler Court
of Appeals held that the Gibsons had provided a sufficient justification for the
delay in probating the will. Id. at 55. The Court found that the evidence proved
that the Gibsons did not acquire the property until ten years after the testator’s
death and had no knowledge that the step-daughter claimed an interest in the
subject property. Id. Therefore, the Court held that the Gibsons were not in
default in falling to probate the will within four years of the testator's death. Id.
In Poppe v. Poppe, 2009 Tex. App. LEXIS 1630 (Tex. App. Houston 1st
Dist. Mar. 5, 2009), Lee Earl Poppe, Sr. (hereinafter “Lee, Sr.”) owned 100 acres
in Colorado County, Texas. Poppe, 2009 Tex. App. LEXIS 1630 at 1-2. On
14
{03568446.DOC / 2}
March 19, 2000, he died, survived by his wife Lillie and two sons, Robert and Lee
Earl Poppe, Jr. ("Lee Jr."). Id at 2. His wife Lillie never offered or sought to have
Lee Sr.'s will admitted probate. Id. On March 8, 2001, Lillie conveyed one-half of
the 100 acres to Lee Jr. and his wife Shirley. Id. Lillie died on May 3, 2003. Id.
Lee Jr. died on January 23, 2006, having never probated either Lee Sr.'s will or
Lillie's will. Id. Thereafter, Robert filed suit against Shirley on October 2, 2006
over disputes as to the ownership of the 100 acres. Id. After Robert filed suit
against Shirley regarding the property, Shirley filed an application to probate the
will of Lee Sr. as a muniment of title, which Robert contested on the grounds that
the probate code only permits a will to be admitted as a muniment of title more
than four years after testator’s death if the party seeking probate of the will was not
in default. Id. The Houston Court of Appeals ruled in favor of Shirley and held
that the evidence did not conclusively establish that she was in default. Id. at 12-
13. Specifically, there was a letter from Shirley’s lawyer stated that he believed
that, “[w]e can perhaps dispose of the disposition of their estate without necessity
of probating the Wills,” which the court found to be evidence that Shirley was not
aware of the necessity to probate the will. Id. at 12. In addition, the fact that
Shirley filed the application to probate the will as a muniment of title as soon as
Robert sued her concerning the 100 acres indicated to the Court that she was not in
15
{03568446.DOC / 2}
default for not applying to have the will admitted to probate at an earlier time. Id.
at 13.
Compare the cases above to the Dallas Court of Appeals holding in
Schindler. In Schindler, Ruby executed a will in 1987 (which was amended by
codicils executed prior to 1995, the will and codicils are referred to collectively as
the “1987 Will”) which left her property in trust for the benefit of her husband,
Jodie, and their surviving children. Schindler, 119 S.W.3d at 927. In 1995 Ruby
executed another will which revoked all prior wills and codicils and left all of her
property to Jodie (the “1995 Will”). Id. Following Ruby’s death on, June 18,
1996, the 1987 Will was admitted to probate. Id. Jodie died on April 13, 2000.
Jodie’s will left 75% of his estate to his second wife, Mary. Id. On June 14, 2001,
more than four years after Ruby’s death, Mary offered the 1995 Will for probate.
Id. It was undisputed that Jodie knew about the 1995 Will before his death and
that he failed to offer it for probate before he died. Id. at 930. The Dallas Court of
Appeals held that Jodie was in default because he knew about the 1995 Will at the
time of Ruby’s death and yet still failed to take any steps to probate that will within
the four year limitations period.
In Brown v. Byrd, 512 S.W.2d 758 (Tex. Civ. App. Tyler 1974), E. L. Gregg
died on April 20, 1934, survived by three children, namely E. R. Greg, Florrie
Gregg Gee and Nell Gregg Kurth. Brown, 512 S.W.2d at 760. Nell Gregg Kurth
16
{03568446.DOC / 2}
died on October 20, 1952, leaving four children, Florrie Kurth Byrd, Hattie Kurth
Brown, Melvin Gregg Kurth and Gregg Kurth. Id. Florrie Kurth Byrd offered E.
L. Gregg’s will and codicil for probate in 1973. Id. Hattie Kurth Brown contested
the offering of said will and codicil for probate stating that Nell Gregg Kurth and
Florrie Kurth Byrd were, as a matter of law, in default for failing to offer the will
for probate within four years. Id. The Tyler Court of Appeals held that Florrie
Kurth Byrd was in default because she had known about the existence and contents
of the will since 1953, and yet failed to take any steps to have that will probated
until 1973. Id. at 761. The Court held that it was immaterial that the will was not
actually in her possession because she was aware of its existence. Id. And the
Court held that Florrie Kurth Byrd’s claim that she did not know what probate
meant until 1970 was not a sufficient excuse for failing to probate the will in a
timely manner. Id.
Appellee Kanda Koehler testified that she became aware of the handwritten
Note in either November or December, 2008, prior to Evelyn Koehler’s death:
Q When did you first learn of the existence of the Codicil?
A The physical document?
Q When did you first learn of the existence of the Codicil?
A In prior discussions with John.
Q When was that?
17
{03568446.DOC / 2}
A I can't tell you a date. I spoke to John weekly.
Q Okay. As far back as 2009?
A Probably.
Q Okay. As far back as immediately after Evelyn's death?
A Oh, no. I knew before that Evelyn had done this, signed it in 2008, that
Evelyn had changed her Will.
Q So you knew of the existence of the Codicil before Evelyn's death?
A Yes.
Q Okay. So when four years past her death had expired, you knew of the
existence of that codicil for over four years?
A I had heard of it. I had never seen it.
Q But you knew of its existence?
A Yes.
(R.R., Vol. 2, pg. 50, lines 1-25)(emphasis added). Therefore, when Appellee filed
her application to probate the handwritten Note as a codicil to Evelyn’s Will on
August 27, 2013, she had been aware of that handwritten Note, and that Evelyn
had changed her Will by that Note, for approximately five years. Yet, she had
taken no steps to acquire possession of that handwritten Note, and she had made no
effort to have that handwritten Note admitted to probate.
Appellee Kanda Koehler also testified that she received a copy of the
handwritten Note in June, 2012. (R.R., Vol. 2, pg. 51, line 24 through pg. 52, line
18
{03568446.DOC / 2}
4; pg. 55, lines 16-18; R.R., Vol. 3, Contestant’s Exhibit 1). She testified that at
that moment, as soon as she received a copy of handwritten Note, she knew “time
was of the essence” in resolving any issues regarding Evelyn Koehler’s estate.
(R.R., Vol. 2, pg. 55, lines 19-21). So, she hired an attorney. (R.R., Vol. 2, pg. 57,
lines 7-9). But neither she nor her attorney took any steps to obtain the original
copy of that handwritten Note (even though it was on file with the clerk of the
court, and readily available to the public at large), and neither she nor her attorney
made any effort to have that handwritten Note admitted to probate until fourteen
months had passed, which would be 427 days or sixty-one weeks.
In the cases discussed above where various Courts of Appeals have found
that a party is not in default for seeking to admit a will to probate after the
expiration of four years, they have focused on certain factors that provide a
sufficient excuse for failing to admit the will to probate in a timely manner. The
fact that the party had limited financial resources, the fact that the party believed
that there was no need to probate the will because of the nature of the estate or
their relationship to the testator, and the fact that the party sought to have the will
admitted to probate immediately after learning of the need to do so, or shortly
thereafter, have all been held to be factors showing that the party offering the will
into probate was not in default. None of those factors are at play in the present
19
{03568446.DOC / 2}
case, and Appellee has not used any of the above as an excuse for failing to offer
the handwritten Note into probate in a timely manner.
The trial court, in its Findings of Fact and Conclusions of Law (C.R. 65-66),
listed the following factors as justifying Appellee’s failure to timely probate the
handwritten Note:
• Appellee admitted that she saw a copy of the handwritten Note on or
about June 26, 2012, but did not have possession or control of the
original handwritten Note, nor the right to control possession and
disposition of said Will or handwritten Note;
As discussed above, in Brown the Tyler Court of Appeals found that a party
was in default for failing to probate a will within four years from the death of the
testator even though that party was not physically in possession of the will.
Brown, 512 S.W.2d at 761. Conversely, the Court found that the fact that the party
knew of the existence of the will, and knew who was in possession of that will,
meant that they had an obligation to have that will probated in a timely manner,
and the failure to do so put that party in default. Id. As discussed above, Appellee
Kanda Koehler admitted that she knew about the existence of the handwritten Note
since November or December, 2008, prior to Evelyn Koehler’s death. (R.R., Vol.
2, pg. 50 lines 1-25). In addition, she knew that John Koehler was in possession of
that handwritten Note prior to his death on April 18, 2012 because she had
discussions with him regarding other family members’ attempts to force him to
produce a copy of that handwritten Note. (R.R., Vol. 2, pg. 48 lines 22-25). So,
20
{03568446.DOC / 2}
no later than April 18, 2012, Appellee knew of the existence of the handwritten
Note and she knew who had possession of that Note. Yet, it took her until August
27, 2013, more than sixteen months later, to file her application to have that
handwritten Note admitted to probate. That is hardly the type of diligence the law
requires.
Additionally, neither the trial court nor the Appellee has identified any law
requiring that a party seeking to admit a will or a codicil to probate must be in
possession of the original of that will or codicil. In fact, when Appellee finally did
file her application to probate the handwritten Note, she admitted that it was the
clerk of the court, and not herself, that was in possession of that document. (C.R.
28-30). Again, Appellee has admitted that she knew of the existence of the
handwritten Note since November or December, 2008, and she has admitted that
she had a copy of the handwritten Note since June 26, 2012. (R.R., Vol. 2, pg. 51,
line 24 through pg. 52, line 4; pg. 55, lines 16-18; R.R., Vol. 3, Contestant’s
Exhibit 1). Therefore, the fact that she did not have possession of the handwritten
Note does not explain why she waited until August 27, 2013 to file her application
to probate that Note.
• Appellee did not receive a “copy” of the handwritten Note until August
or September of 2012;
As discussed above, this is not true. Appellee has admitted that she had a
copy of the handwritten Note as early as June 26, 2012. (R.R., Vol. 2, pg. 51, line
21
{03568446.DOC / 2}
24 through pg. 52, line 4; pg. 55, lines 16-18; R.R., Vol. 3, Contestant’s Exhibit 1).
In addition, possession is irrelevant.
• Appellee testified she did not know nor understand the “effect” of the
filing of the handwritten Note with the County Clerk of Bell County,
Texas for safekeeping;
“A person having custody of a will is charged with the knowledge that it
must be filed for probate within the statutory period to rely upon it, whether the
necessity for doing so is apparent to him or not.” Rothrock, 312 S.W.3d at 275. In
Poppe, Perez, Kamoos, and Chovanec, which are discussed above, the party
seeking to admit the will to probate claimed that he or she was not aware of the
need to admit the will to probate. But, in each of those cases, that belief was based
on the nature of the relationship between the testator and the beneficiary of the
will, and the nature of the property, or the value of the property that was subject to
that will. In the present case, Appellee is just claiming ignorance of the law. And
that is not a sufficient excuse.
• Appellee did not know that Kristen Mynar, attorney of record for Jennifer
Phy, was not representing her also until on or about June 26, 2012;
One of the key factors mentioned in the cases discussed above was the fact
that when the party discovered the need to probate the will they did so
immediately. So, even if we assume Appellee really did believe that Kristen
Mynar was her attorney until June 26, 2012, that does not explain why it took her
another fourteen months to attempt to have the will admitted to probate.
22
{03568446.DOC / 2}
On April 18, 2012, when John Koehler died, Appellee Kanda Koehler, as
both a beneficiary and as executrix under his will, had standing to seek to admit
both John’s will and the handwritten Note to probate. At that same moment she
was already aware of the existence of that handwritten Note. By June 26, 2012 she
had received a copy of that handwritten Note. And by July, 2012 she had retained
legal counsel, and knew that “time was of the essence” to resolve the issues with
Evelyn Koehler’s estate. And yet she waited until August 27, 2013 to file her
application to admit the handwritten Note to probate. There is no excuse for that
delay. And excusing her failure to have the handwritten Note admitted to probate
in a timely manner will vitiate the public policy and statutory requirements
favoring the timely probate of wills.
Issue No. 2: The default of John Koehler in failing to timely probate the
handwritten Note is imputed to Appellee Kanda Koehler,
prohibiting the probate of that handwritten Note.
“A proponent 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 (citing
Brown v. Byrd, 512 S.W.2d at 760). “However, 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.” Id. (citing Abrams v. Estate of Sarah Ross, 250 S.W.
1019, 1022 (Tex. Comm'n App.—1923, op. adopted); Faris, 138 S.W.2d at 832;
23
{03568446.DOC / 2}
Matt v. Ward, 255 S.W. 794, 795-96 (Tex. Civ. App.—Fort Worth 1923, writ
ref'd)).
In Faris, George Faris died on March 1, 1918. Faris, 138 S.W.2d at 830-
831. George Faris had a will which left all of his property to his wife, Sophia
Faris. Id. at 831. Sophia Faris had the will and she placed it in her lock box,
where it remained until after her death on January 25, 1937. Id. Sophie Faris’ will
left her homestead to her son, Ellsworth Faris. Id. After Sophie’s death, Ellsworth
Faris offered the will of George Faris, his father, to probate. Id. The Dallas Court
of Civil Appeals stated:
Appellants vigorously contend that…only the "default" of the party applying
for the will's probate is in issue. In the cited cases, the applicant was either a
devisee under the will sought to be probated, or a purchaser (i. e., a grantee
or vendee) of such devisee. Here, appellants were neither devisees, legatees,
grantees, nor purchasers, as contemplated by the adjudicated cases, but are
merely devisees of a devisee. Appellants may be considered as taking by
purchase under the standard rules of construction relative to wills and
succession of title thereunder, but, in the case at hand, they occupy no better
position than next of kin, or heirs of the mother.
Id. at 832. Therefore, the Court held that since his mother, Sophie, was in default
for failing to have the subject will admitted to probate in a timely manner, the son,
Ellsworth, could not now revive that will because he could occupy no better
position than that of his mother.
In Schindler, Ruby executed a will in 1987 (which was amended by codicils
executed prior to 1995, the will and codicils are referred to collectively as the
24
{03568446.DOC / 2}
“1987 Will”) which left her property in trust for the benefit of her husband, Jodie,
and their surviving children. Schindler, 119 S.W.3d at 927. In 1995 Ruby
executed another will which revoked all prior wills and codicils and left all of her
property to Jodie (the “1995 Will”). Id. Following Ruby’s death on, June 18,
1996, the 1987 Will was admitted to probate. Id. Jodie died on April 13, 2000.
Jodie’s will left 75% of his estate to his second wife, Mary. Id. On June 14, 2001,
more than four years after Ruby’s death, Mary offered the 1995 Will for probate.
Id. It was undisputed that Jodie knew about the 1995 Will before his death and
that he failed to offer it for probate before he died. Id. at 930. The Dallas Court of
Appeals held that Jodie was in default because he knew about the 1995 Will at the
time of Ruby’s death and yet still failed to take any steps to probate that will within
the four year limitations period. Additionally, the Court held that, “Mary, as a
devisee of Jodie, stands in no better position than Jodie.” Id. Therefore, Jodie’s
default was imputed to Mary, and Mary could not probate the subject will because
she could occupy no better position than that of Jodie.
In the present case, neither Evelyn Koehler’s Will nor the handwritten Note
left anything to Appellee Kanda Koehler. (Appendix “A”; R.R., Vol. 3,
Petitioner’s Exhibit No. 1). Conversely, John Koehler is a beneficiary of both
Evelyn Koehler’s Will and the handwritten Note. (Appendix “A”; R.R., Vol. 3,
Petitioner’s Exhibit No. 1). Appellee is nothing more than a devisee of a devisee
25
{03568446.DOC / 2}
in regards to the Estate of Evelyn Koehler, and takes only as a beneficiary of the
Last Will and Testament of John Koehler. Therefore, under the cases discussed
above, Appellee can occupy no better position than John Koehler, and John
Koehler’s default in failing to probate the handwritten Note is imputed to Appellee.
It is undisputed that John Koehler knew about the handwritten Note at the time of
Evelyn Koehler’s death in December, 2008, that he had possession of the
handwritten Note, that he refused to deliver it to anyone, that he refused to appear
in court when legal proceedings were instituted to force him to turn the Note over,
and that he failed to offer that handwritten Note for probate prior to his death on
April 18, 2012. Thereafter, Appellee continued his default and failed to seek to
have that handwritten Note admitted to probate until August 27, 2013. These facts
parallel the facts in Schindler, and this Court should apply the reasoning of the
Dallas Court of Appeals from that case and hold that Appellee can not occupy any
better position than John Koehler, and should be charged with his default in failing
to probate the handwritten Note in a timely manner.
Prayer for Relief
For the reasons stated, Appellants respectfully request that the Court reverse
the order of the trial court, and render judgment denying Appellee Kanda
Koehler’s application to probate the handwritten Note.
26
{03568446.DOC / 2}
Respectfully submitted,
____________________________________
Robert Little
State Bar No. 24050940
little@namanhowell.com
Kristen A. Mynar
State Bar No. 24074785
kmynar@namanhowell.com
Naman, Howell, Smith & Lee, PLLC
400 Austin Ave., Ste. 800
Waco, Texas 76701
254-755-4100
254-754-6331 (fax)
ATTORNEYS FOR APPELLANTS
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was sent to the
person(s) named below, at the address shown by placing the same in a properly
addressed envelope, postage pre-paid, and mailing the document by first class mail
(and by other means stated below) on September 18, 2015.
Eric Stoebner
Harrell & Stoebner, P.C.
2106 Bird Creek Dr.
Temple, Texas 76502
____________________________________
Robert Little
27
{03568446.DOC / 2}
Certificate of Compliance
I certify that the Brief on the Merits complies with the word count
limitations contained in Rule 9, Tex. R. App. P, and provide the following
information:
a. Case Name: In the Estate of Evelyn
Landua Koehler, Deceased
b. Docket Number: No. 03-14-00035-CV
c. Document: Appellants’ Brief
d. Word Processing Software Microsoft Word
used to prepare the document:
In compliance with Rule 9.4, Tex. R. App. P., I certify that the Brief on the
Merits contains no more than 6,219 words, including all portions countable
towards the word limit, and all footnotes.
Respectfully submitted,
____________________________________
Robert Little
28
{03568446.DOC / 2}
No. 03-14-00035-CV
In the Court of Appeals
For the Third Judicial District
Sitting at Austin, Texas
In the Estate of
Evelyn Landua Koehler, Deceased
Appealed from the County Court at Law No. 1 of
Bell County, Texas
APPENDIX
Last Will and Testament of Evelyn Landau Koehler A
Last Will and Testament of John Koehler B
The Note C
Order Admitting Holographic Codicil to Probate D
Findings of Fact and Conclusions of Law E
{03569324.DOCX / }
A
{03569324.DOCX / }
•
tGast Btll aub wtstatutut
OF
EVELYN LANDUA KOEHLER
THE STATE OF TEXAS §
KNOW ALL MEN BY THESE PRESENTS
COUNTY OF BELL §
That I, EVEL YN LANDUA KOEHLER, of the County ofBell, State of Texas, being above
the age of Eighteen (18) years and being a single person, in good health and of sound and disposing
mind and memory and desiring to dispose of all my worldly goods while I have the strength and
capacity to do so, do Hereby Make, Publish and Declare this my Last Will and Testament, hereby
revoking any and all other wills by me at anytime heretofore made, that is to say:
I
I desire and direct that my remains be interred in a decent manner suitable to my station and
circumstances in life.
II
I direct that my legally binding obligations and funeral expenses including expenses of my
last illness and all federal and state estate and inheritance taxes (except any generation-skipping tax
imposed by Section 2601 of the Internal Revenue Code) imposed upon my estate or any beneficiary
thereof, including the portion of any such tax as is attributable to the proceeds of policies of
insurance on my life or other property now constituting a part of my probate estate, shall be
apportioned in accordance with Texas law. My Executor is specifically given the right and power
G:\DOCS\CLIENT\K\Koehler, 8velyn\Will.frm
to incur indebtedness and to borrow money for the purpose of paying any or all of the aforesaid
debts, expenses and taxes.
I further direct that all my property that is encumbered by any indebtedness at the time of
my death shall pass to my beneficiaries subject to such indebtedness.
Any transfer taxes arising as a result of my death and in connection with any excess
accumulation taxes under Section 498 I (A) of the Code shall not be paid by my estate but shaH be
paid as provided under the applicable provisions of the Code or state law.
III
I hereby give, will, devise and bequeath unto my brother, OTTO CHARLES LANDUA, my
interest in the twenty and one tenth (20.1) acre property known as the "home place" in Washington
County, Texas, FOR AND DURING HIS LIFETIME ONLY, the right to use and receive the
income, profits, dividends and fruits derived therefrom, SAVE AND EXCEPT the income from
mineral rights. I hereby give, wiIl, devise, and bequest the remainder of said property, including but
not limited to the mineral rights, and remainder interest in the surface estate unto my sons, as
follows:
One-third (1/3) unto JOHN 1. KOEHLER, in fee simple.
One-third (1/3) unto DAVID A. KOEHLER in fee simple.
One-third (1/3) unto CHARLES F. KOEHLER, BUT IN TRUST NEVERTHELESS according to
the terms and conditions of the CHARLES KOEHLER TRUST, a Testamentary Trust established
under the wiIl of OTTO F. KOEHLER, signed on June 9,1994; and probated in the Probate Court
of Bell County, Texas, Cause Number 20,970, June 8, 1998.
G:\DOCS\CLIENT\K\Koehler, Evelyo\Will.frm -2-
IV
I hereby give, will, devise and bequeath unto my granddaughter, JENNIFER KOEHLER
PHY, my mother's gold and diamond ring, in fee simple.
V
I hereby give, will, devise and bequeath unto my granddaughter, CASEY KOEHLER, my
platinum and diamond ring, in fee simple.
VI
U. S. Savings Bonds with a named co-owner shall be distributed to such named co-owner.
All other U. S. Savings Bonds shaH be divided equaHy among my three sons as foHows:
One-third (1/3) unto John 1. Koehler, in fee simple.
One-third (1/3) unto David A. Koehler, in fee simple.
One-third (1/3) unto CHARLES F. KOEHLER, BUT IN TRUST NEVERTHELESS,
according to the terms and conditions of the CHARLES KOEHLER TRUST, a Testamentary Trust
established under the will of OTTO F. KOEHLER, signed on June 9, 1994; and probated in the
Probate Court of Bell County, Texas, Cause Number 20,970, June 8,1998.
VII
I hereby give, will, devise and bequeath the rest, remainder and residue of my property of
which I may die seized and possessed, or to which I may be entitled, whether same be real, personal
or mixed, of whatsoever character and wheresoever situated, both community and separate, as
follows:
One-third (1/3) unto JOHN 1. KOEHLER, in fee simple.
One-third (1/3) unto DAVID A. KOEHLER, in fee simple.
S4/<::'
G, \DOCS\CLIENT\K\Koehler, Evelyn\Will. frm -3-
One-third (1/3) unto CHARLES F. KOEHLER, BUT IN TRBST NEVERTHELESS
according to the terms and conditions of the CHARLES KOEHLER TRUST a Testamentary Trust
established under the will of OTTO F. KOEHLER, signed on June 9, 1994; and probated in the
Probate Court of Bell County, Texas, Cause Number 20,970, June 8,1998.
In the event thatJOHN L. KOEHLER, DAVID A. KOEHLER or CHARLES F. KOEHLER
should predecease me, then such beneficiary's share of my estate shall pass to the issue of said
beneficiary, share and share alike, BUT IN TRUST NEVERTHELESS, according to the terms and
conditions hereinafter set forth and provided. In the event that JOHN L. KOEHLER, DAVID A.
KOEHLER, or CHARLES F. KOEHLER should predecease me and leave no issue, then said
beneficiary's share of my estate shall pass equally to the survivor or survivors of JOHN L.
KOEHLER, in fee simple; DAVID A. KOEHLER, in fee simple; and CHARLES F. KOEHLER,
BUT IN TRUST NEVERTHELESS, according to the terms and conditions of the CHARLES
KOEHLER TRUST a Testamentary Trust established under the will of OTTO F: KOEHLER, signed
on June 9, 1994; and probated in the Probate Court of Bell County, Texas, Cause Number 20,970,
June 8, 1998.
VIII
I hereby name, nominate, constitute and appoint JOHN L. KOEHLER and/or DAVID A.
KOEHLER, as Independent Executor of this my Last Will and Testament, and I direct that no bond
or other security shall be required of them as such, and that the Courts of the Country shall have and
exercise no jurisdiction over my estate except to require the probating of this Will and the return into
Court of an Inventory, Appraisement and List of Claims as required by law. I do further authorize
and direct that my said Independent Executor shall have full and complete power and authority to
ELK
G \ \DOCS\CLIENT\K\Koehler, Evelyn\Will, frm -4 -
manage, lease, control, exchange, sell real estate or otherwise alienate all or any portion of my estate
as to them in their discretion shall seem fit and proper, all without the intervention of any Court or
other agency.
My Executor shall have all the power, rights, authorities and prerogatives set forth in the
Texas Trust Code as it now exists or may be hereafter amended.
IX
Ifany of my grandchildren receive a share of my estate under the provisions of this Will and
are under the age of twenty-one (21) years, then I direct that the legal guardian of such grandchild,
as Trustee, hold such grandchild's share of my estate in a separate trust for the benefit of such
grandchild until such grandchild attains his or her twenty-first (21st) birthday, at which time the
Trustee shall distribute the principal and accumulated income of such trust to the beneficiary and
thereby terminate the trust. During the period of time any such share is held in trust under the
provisions of this Article, the Trustee shall have all the powers conferred on Trustees by the Texas
Trust Code as now written or hereafter amended, and to generally deal in and with the trust estate
to the same extent and with the same effect as a competent adult individual might or could do
without being restricted by the terms of the Texas Trust Code, and to do all acts which, in the
jUdgment of the Trustee, may be necessary or desirable or appropriate' for the proper and
advantageous management, investment or disposition of any property of a trust estate without
limitation whatsoever. The Trustee is authorized to apply so much of the income and principal of
such grandchild's trust as the Trustee, in its sole discretion may deem desirable for the health,
maintenance, support or education of such grandchild. If such grandchild dies before attaining his
or her twenty-first (21 st) birthday, the principal and any accumulated income of his or her trust shall
kL.K
G:\DOCS\CLIENT\K\Koehler, Evelyn\Will,frm -5-
be distributed to tbe estate of such grandchild. No bond or other security shall be required of the
Trustee serving pursuant to this Article, and any such Trustee shall additionally have all powers and
protection granted to my Executor by the tenus of this Will.
THIS I MAKE, PUBLISH AND DECLARE as my LAST WILL AND TESTAMENT and
in TESTIMONY WHEREOF, witness my hand at Temple, Texas, this tbe 29th day of May, 200 I,
in the presence of MARlL YN BENTLEY, DIANITA DRlVER , and WANDA KELLEY, who
at my request, in my presence and in the presence of each other hereunto subscribe their names as
attesting witnesses.
EVEL YN U(NDUA KOEHLER
Testatrix
WITNES S E S:
ZJ1oA+l/~(1J
tJ!4&it, ~J
THE STATE OF TEXAS §
COUNTY OF BELL §
BEFORE ME, the undersigned authority, on this day personally appeared EVELYN
LANDUA KOEHLER, MARILYN BENTLEY, DIANITA DRIVER, and WANDA KELLEY,
known to me to be the Testatrix and the witnesses, respectively, whose names are subscribed to the
annexed or foregoing instrument in their respective capacities, and all of said persons being by me
duly sworn, the said EVELYN LANDUA KOEHLER, Testatrix, declared to me and to the said
witnesses in my presence, that said instrument is her Last Will and Testament, and that she had
willingly made and executed it as her free act and deed for the purposes therein expressed; and the
said witnesses, each on his or her oath, stated to me, in the presence and hearing ofthe Testatrix, that
the said Testatrix had declared to them the said instrument is her Last Will and Testament, and that
she executed same as such and wanted them to sign it as a witness; and upon their oaths, each
witness stated further that they did sign the same as witnesses in the presence of the said Testatrix,
and at her request; that she was at the time eighteen (18) years of age or over and was of sound mind,
and that each of said witnesses was then at least fourteen (14) years of age.
Testatrix
SUBSCRIBED AND SWORN to before me by the said EVEL YN LANDUA KOEHLER,
Testatrix, and by the said MARILYN BENTLEY, DIANITA DRIVER, and WANDA KELLEY,
witnesses, this the 29th day of May, 200 I.
Notary Public in a for the
State of Texas
B
{03569018.DOCX / }
C
{03569018.DOCX / }
D
{03569018.DOCX / }
11/07/2013
1110712013 15:01 P.0021003
/
No. 29,462
IN THE ESTATE OF § IN COUNTY COURT AT LAW
§
EVELYNLANDUAKOEHLE~ § NUMBERONE
§
DECEASED § BELL COUNTY, TEXAS
ORDER ADMITTING HOWGRAPIDC CODICIL TO PROBATE
On October 23, 2013, came on to be heard the Application For Probate of Holographic
Codicil and Letters of Administration With Will Annexed filed by KANDA KOEHLER
("Applicant"), in the Estate ofEVELYN LANDUA KOEHLER ("Decedent").
("Applicant").
On January 10,2013 the Court signed an order in this cause appointing JENNIFER PHY
as Temporary Administrator of Decedent's estate; and on July 29, 2013, the Court signed an
order in this cause admitting to probate an instrument dated May 29,2001
29, 2001 as Decedent's Will,
appointing JENNIFER PRY PHY as Dependent Administrator of Decedent's estate, and granting
Letters of Administration of Will Annexed.
The Court, having heard the evidence and having reviewed the instrument offered for
probate by Applicant as a Codicil to Decedent's Will, and the other documents filed herein, finds
that the allegations set forth in the Application are true; that Decedent died on December 28,
2008, and that Applicant is not in default for failing to probate the Codicil within four years of
Decedent's death; that notice and citation have been given in the manner and for the length of
time required by law; that this Court has jurisdiction and venue of the Decedent's estate; that
Decedent left a holographic Codicil dated November 28, 2008, executed with the formalities and
solemnities and under the circumstances required by law to make it a valid Codicil to Decedent's
Will; that from the sworn testimony in open Court of two persons familiar with the handwriting
of Decedent, it appears the Codicil was made wholly in the handwriting of the Decedent, and
Decedent's signature is subscribed thereto; that on the date said holographic Codicil was made,
s01md mind; that said Codicil
Decedent had attained the age of eighteen (18) years and was of sOlmd
was not revoked by Decedent; that all of the necessary proof required for the probate