Reuben Meredith Haga v. Jerry Redmond Thomas and Lyda Ann Thomas , 2013 Tex. App. LEXIS 8757 ( 2013 )

Opinion issued July 16, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00218-CV
———————————
REUBEN MEREDITH HAGA, Appellant
V.
JERRY REDMOND THOMAS AND LYDA ANN THOMAS, Appellees
On Appeal from the Probate Court
Galveston County, Texas
Trial Court Case No. PR-0072323-A
OPINION
In this probate proceeding, after the probate court admitted Zachary
Thomas’s will to probate, appellees, Jerry and Lyda Ann Thomas, Zachary’s
parents, filed an application to determine heirship, which was opposed by
appellant, Reuben Haga, Zachary’s former step-son and a purported beneficiary
under the will. In response to Jerry and Lyda Ann’s motion for summary
judgment, Haga filed a plea to the jurisdiction, contending that the probate court
lacked jurisdiction because Zachary’s will had already been admitted to probate in
North Carolina, where he had died, and an administration was already pending in
that proceeding. The probate court granted Jerry and Lyda Ann’s motion for
summary judgment, declared them to be Zachary’s heirs at law, and declared that
the provisions in Zachary’s will benefitting Haga were invalid. In his sole issue on
appeal, Haga contends that the probate court erred in not granting his plea to the
jurisdiction.
We affirm.
Background
Zachary Thomas was a resident of Asheville, North Carolina, when he died
on October 19, 2010. Zachary’s will was subsequently admitted to probate in
Buncombe County, North Carolina on November 8, 2010 (“the North Carolina
probate proceeding”). At the time Zachary executed his will on October 18, 2007,
he was married to Susan Haga, Reuben Haga’s mother. This will named Susan as
independent executor of Zachary’s estate, with her mother, followed by Reuben, to
serve as successive executors. Susan was the primary beneficiary of Zachary’s
estate, with Reuben named as the primary contingent beneficiary if Susan did not
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survive Zachary. The will contained the following provision, “This will has been
prepared and executed in the State of Texas. Except as otherwise provided herein,
all questions concerning the meaning and intention of any of its terms or validity
shall be determined in accordance with the laws of the State of Texas.” It is
undisputed that Zachary and Susan divorced on December 30, 2009, and that they
had no children.
Reuben Haga initially qualified as executor of Zachary’s estate in the North
Carolina probate proceeding. He subsequently requested that the probate court
allow him to resign in favor of Harris Livingstain, an Asheville attorney. The
North Carolina court accepted Haga’s resignation and appointed Livingstain as
administrator.
On December 23, 2010, Lyda Ann Thomas filed a proof-of-death affidavit
and an application for the probate of Zachary’s will and the issuance of letters of
administration with the Galveston County probate court (“the Texas probate
proceeding”). In the affidavit, Lyda Ann averred that Zachary was domiciled in
Galveston at the time of his death. That same day, the probate court admitted the
will to probate and authorized the issuance of letters of administration. In the order
admitting the will to probate, the trial court found that it had jurisdiction and venue
over Zachary’s estate and that the named executors in the will, including Susan and
Reuben Haga, were disqualified from serving in a fiduciary capacity pursuant to
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Probate Code section 69. See TEX. PROB. CODE ANN. § 69(b) (Vernon Supp. 2012)
(“If, after making a will, the testator’s marriage is dissolved, whether by divorce,
annulment, or a declaration that the marriage is void, all provisions in the will,
including all fiduciary appointments, shall be read as if the former spouse and each
relative of the former spouse who is not a relative of the testator failed to survive
the testator, unless the will expressly provides otherwise.”). The trial court
appointed Lyda Ann as the administrator of Zachary’s estate “to administer the
assets of the estate not already administered.”
On February 2, 2011, Jerry and Lyda Ann Thomas filed a petition in
intervention in the pending Texas probate proceeding, seeking construction of
Zachary’s will and a determination of heirship. They argued that a dispute had
arisen over whether Zachary’s assets should be distributed pursuant to the terms of
the will or pursuant to Texas’s laws of descent and distribution. In this petition,
Jerry and Lyda Ann asserted that Zachary owned real property in Austin, “equity
interest in several entities,” and “other items of personal property” at the time of
his death. They argued that Susan, Reuben, and the other named beneficiaries in
the will were all disqualified from receiving any portion of Zachary’s estate
pursuant to Probate Code section 69 and, under that statute, were deemed to have
predeceased Zachary. As a result, Zachary’s property “passes by intestate
succession” to his nearest kin, Jerry and Lyda Ann. Jerry and Lyda Ann requested
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that the probate court enter a judgment declaring that Susan, Reuben, and the other
named beneficiaries were determined to have predeceased Zachary and were
disqualified from receiving estate assets. They also sought an heirship
determination that, as Zachary’s surviving parents, they were “entitled to inherit all
assets of his estate under the laws of descent and distribution.”
Haga filed a general denial to the petition in intervention. In this answer, he
also moved the probate court to dismiss the Texas probate proceeding for lack of
jurisdiction. He asserted that Zachary’s will had already been admitted to probate
in North Carolina, that Lyda Ann had agreed to the appointment of a third-party
administrator in the North Carolina probate proceeding, and that Zachary had been
domiciled in North Carolina at the time of his death. Haga also acknowledged that
Zachary’s only asset “subject to Texas jurisdiction is a parcel of real property
situated in Hays County, Texas.” He argued that because Zachary’s will was
already admitted to probate in North Carolina and because Texas “does not require
administration for ancillary probate of real estate situated in Texas,” there was no
need to administer Zachary’s estate in Texas. The probate court denied Haga’s
motion to dismiss the proceeding.
In the Texas probate proceeding, Lyda Ann moved the trial court to allow
her to resign as administrator and to appoint Livingstain, who was handling the
administration of Zachary’s estate in the North Carolina probate proceeding. The
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trial court granted this motion and appointed Livingstain as “ancillary dependent
administrator.”
On May 4, 2011, Haga amended his answer in the Texas probate proceeding
to contend that Jerry and Lyda Ann were not entitled to an heirship determination
in their favor because he was Zachary’s child under the doctrine of equitable
adoption. Thus, he “takes pursuant to the Will probated in this action and no
determination of heirship is necessary.”
Haga then moved for summary judgment on Jerry and Lyda Ann’s petition
in intervention. He argued that he was not disqualified from inheriting pursuant to
section 69 because “[s]everal provisions in [Zachary’s] Will indicate his intent for
Reuben Haga to be treated as [Zachary’s] lineal descendant in the first degree.”
According to Haga, Zachary provided that Haga “is both a relative of Susan Haga
and his own child for purposes of this Will.” The trial court denied this motion.
On August 2, 2011, Haga again amended his answer in the Texas probate
proceeding, contending that because the will had already been admitted to probate
in North Carolina, under Probate Code section 95(e), the will “shall be effectual to
dispose of both real and personal property in [Texas] pursuant to the laws of the
State of North Carolina.” He asserted that, under North Carolina law, he would not
be deemed to have predeceased Zachary. He also re-asserted his earlier
contentions that, if the probate court applied Texas law, he would recover under
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the will because the will provided that he was to be treated as Zachary’s lineal
descendant and because he was Zachary’s child by equitable adoption.
On December 5, 2011, Jerry and Lyda Ann moved for summary judgment
on their heirship petition. They again asserted that Haga was disqualified pursuant
to section 69, and they urged the trial court to adopt its prior ruling denying Haga’s
summary judgment motion, which addressed the same issues. They also argued
that Haga was not Zachary’s son under the doctrine of equitable adoption. Jerry
and Lyda Ann further contended that the will clearly provided that it was to be
governed by the laws of Texas, regardless of Zachary’s domicile at the time of his
death, and, even if the will did not so provide, Texas law applies to the disposition
of land located within the boundaries of Texas.
As part of his response to Jerry and Lyda Ann’s summary judgment motion,
Haga filed a plea to the jurisdiction. Haga argued that the probate court did not
have jurisdiction over the dispute and could not admit Zachary’s will to probate
due to the North Carolina probate proceeding. He argued that Probate Code
section 95, which concerns the admission to probate in Texas of wills that have
already been admitted to probate in another jurisdiction, “does not vest jurisdiction
with this Court or the Texas courts to get around the probate in another jurisdiction
(of their citizen) by attempting to rule and probate the foreign will.” He contended
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that only the North Carolina probate court had the ability to interpret and construe
Zachary’s will.
The Texas probate court ultimately granted Jerry and Lyda Ann’s summary
judgment motion. The court included the following in its order:
It is therefore ORDERED that Intervenors’ Motion for Summary
Judgment is granted as to all claims and defenses asserted by Reuben
Meredith Haga, that the Will of Zachary Cecil Kempner Thomas does
not create [an] exception to the disqualification of Reuben Meredith
Haga under Section 69 of the Texas Probate Code, that as a matter of
law Reuben Meredith Haga was not equitably adopted by Zachary
Cecil Kempner Thomas, that the law of the State of Texas controls all
estate assets, and that all beneficiaries and fiduciaries named in the
Will are disqualified under Texas Probate Code Section 69. Zachary
Cecil Kempner Thomas was single at the time of his death, having
been divorced from Susan Haga, Reuben Meredith Haga’s mother,
and Zachary Cecil Kempner Thomas left no surviving children. Lyda
Ann Thomas and Jerry Redmond Thomas are his heirs at law.
After the probate court severed the claims by Jerry and Lyda Ann against Haga,
this appeal followed.
Subject-Matter Jurisdiction
In his sole issue, Haga contends that the trial court erred in failing to grant
his plea to the jurisdiction because North Carolina, the state in which Zachary
resided when he died and the state in which Zachary’s will was first admitted to
probate, has exclusive jurisdiction to construe Zachary’s will and to oversee the
administration of his estate.
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A. Standard of Review
A party may challenge a trial court’s subject-matter jurisdiction by filing a
plea to the jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39
(Tex. 1999); Porretto v. Patterson, 251 S.W.3d 701, 706 (Tex. App.—Houston
[1st Dist.] 2007, no pet.). We review the trial court’s ruling on a plea to the
jurisdiction de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
In this review, we do not consider the underlying merit of the plaintiff’s case;
instead, we consider only the plaintiff’s pleadings and evidence relevant to the
jurisdictional inquiry. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.
2002); Porretto, 251 S.W.3d at 706–07. We construe the pleadings liberally in
favor of conferring jurisdiction. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864,
867 (Tex. 2002); Porretto, 251 S.W.3d at 707. The plaintiff bears the burden to
allege facts affirmatively demonstrating the trial court’s jurisdiction to hear the
case. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003);
Porretto, 251 S.W.3d at 707. For a defendant to prevail on a plea to the
jurisdiction, he must demonstrate an incurable jurisdictional defect apparent from
the face of the pleadings, making it impossible for any amendment of the petition
to confer jurisdiction on the trial court. Porretto, 251 S.W.3d at 707.
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B. Texas Probate Court’s Jurisdiction
Probate Code section 95(a) provides, “The written will of a testator who was
not domiciled in Texas at the time of his death which would affect any real or
personal property in this State, may be admitted to probate upon proof that it stands
probated or established in any of the United States . . . .” TEX. PROB. CODE ANN.
§ 95(a) (Vernon Supp. 2012); see also McCuen v. Huey, 255 S.W.3d 716, 729
(Tex. App.—Waco 2008, no pet.) (“When a will has been duly probated in another
state, the judgment of the probate court must be given full faith and credit in this
state.”); Maxfield v. Terry, 885 S.W.2d 216, 219 (Tex. App.—Dallas 1994, writ
denied) (“Texas courts apply the full faith and credit doctrine to another state’s
determination to admit a will to probate in that state.”). After the will is filed and
recorded with a Texas clerk, the will “shall have the same force and effect for all
purposes as if the original will had been probated by order of the court, subject to
contest in the manner and to the extent hereinafter provided.” TEX. PROB. CODE
ANN. § 95(d)(1). Section 95 does not address whether a Texas probate court has
jurisdiction to resolve disputes concerning the administration of an estate or the
construction of a will of a decedent who died in another state and was domiciled in
that other state, but who owned real property in Texas.
Texas courts have “ultimate power over lands situated within [this] state.”
Toledo Soc’y for Crippled Children v. Hickok, 261 S.W.2d 692, 696 (Tex. 1953);
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Colden v. Alexander, 171 S.W.2d 328, 335 (Tex. 1943) (“It is the settled law of
this State, as well as the law generally, that the title to real property is exclusively
subject to the government within whose territory it is situated.”). The Texas
Supreme Court has held that, although the law of the testator’s domicile governs
with respect to his personal property, with respect to the testator’s real property,
“the place where the property is situated is to govern, not only as to the capacity of
the testator and the extent of his power to dispose of the property, but as to the
forms and solemnities to give the will its due attestation and effect.” Crossland v.
Dunham, 140 S.W.2d 1095, 1097 (Tex. 1940) (quoting Holman v. Hopkins, 27
Tex. 38, 38 (1863)); Owen v. Younger, 242 S.W.2d 895, 897 (Tex. Civ. App.—
Amarillo 1951, no writ).
Moreover, “the Legislature of one state has no power to confer jurisdiction
over property situated in another state.” De Tray v. Hardgrove, 52 S.W.2d 239,
240 (Tex. Comm’n App. 1932); In re Bills’ Estate, 542 S.W.2d 943, 946 (Tex.
Civ. App.—Texarkana 1976, writ ref’d n.r.e.) (“The law is settled that the
Arkansas judgment of probate is in rem but has no extra-territorial effect upon
assets of the decedent’s estate in Texas.”); Simmons v. O’Connor, 149 S.W.2d
1107, 1110 (Tex. Civ. App.—Fort Worth 1941, writ dism’d judgm’t cor.) (“It is
clear that only the Texas courts have jurisdiction to adjudicate titles to Texas lands,
and that in such suits the laws of Texas must apply.”). Thus, the existence of real
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property in Texas gives Texas courts jurisdiction over an administration
concerning that property. See Saner-Ragley Lumber Co. v. Spivey, 238 S.W. 912,
916 (Tex. Comm’n App. 1922); Owen, 242 S.W.2d at 898 (“[T]he language of [the
predecessor to section 95] when fairly construed discloses a legislative purpose not
only to authorize the probate of foreign wills in this State, but also to make such
authority dependent on the existence, in this State, of property belonging to the
estate of the deceased.”).
The law is clear that when a decedent dies in one state and owns real
property in another state, both states have jurisdiction over an administration
concerning the assets within the particular state’s territorial borders. Probate Code
section 95 simplifies the process of admitting to probate in Texas a will that has
already been admitted to probate in another state, regardless of whether that other
state was the decedent’s domicile. See, e.g., Wagner v. Duncan’s Estate, 546
S.W.2d 859, 863 (Tex. Civ. App.—Dallas 1977, no writ) (“We hold that a will
filed and recorded pursuant to section 95(d)(1) has been probated within the
meaning of [Probate Code] section 100(b).”). Section 95 says nothing about
whether a Texas court has jurisdiction to administer the estate with respect to the
decedent’s real property located in Texas when an administration is already
pending in another state; instead, it merely provides a procedural mechanism to
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begin an ancillary probate proceeding in Texas without going through the formal
process of admitting the will to probate in Texas. See TEX. PROB. CODE ANN. § 95.
Here, it is undisputed that Zachary owned personal property in North
Carolina, where he resided at the time of his death, and real property located in
Texas. Haga contends that section 95 allows the Texas probate court to “dispose
of both real and personal property in this State,” but this section does not confer
jurisdiction on the ancillary court to “act like courts of original probate
jurisdiction” and take actions such as construing the terms of a foreign will.
According to Haga, if there is a need for such an action it “must be conducted in
the original probate proceeding.”
Haga properly sought to have Zachary’s will admitted to probate in North
Carolina, but the North Carolina court lacks jurisdiction to issue rulings affecting
Zachary’s real property located in Texas; only a Texas court has jurisdiction to
administer real property located in Texas. See In re Bills’ Estate, 542 S.W.2d at
946. Thus, the “original” probate court in this case—the North Carolina court—
had no jurisdiction to, for example, construe Zachary’s will as it related to his real
property located in Texas. Only the Texas probate court—the ancillary court—can
do that. Moreover, when the Texas probate court construed Zachary’s will
concerning the disposition of his real property in this state, it was required by
Texas law to apply the law of the state in which the real property was located,
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which, in this case, was Texas. See Crossland, 140 S.W.2d at 1097; Owen, 242
S.W.2d at 897.
To the extent Haga argues that the probate court erroneously failed to grant
his plea to the jurisdiction on the ground that the North Carolina probate
proceeding was instituted first and should be considered the “primary” proceeding,
Haga has cited no authority that the existence of a prior proceeding in another state
admitting a will to probate deprives the Texas probate courts of jurisdiction to
resolve any issues relevant to real property of the decedent located in Texas.
We conclude that, because Zachary undisputedly owned real property in
Texas, the probate court had jurisdiction to admit Zachary’s will to probate in this
state giving full faith and credit to the judgment of the North Carolina probate
court. See TEX. PROB. CODE ANN. § 95(a). After the will was filed and recorded
with a Texas clerk, the will had the same force and effect as if it had been probated
by order of the Texas court. Id. § 95(d)(1). The Texas probate court then had
jurisdiction to commence an administration of Zachary’s real property located in
Texas, which includes jurisdiction to rule on Jerry and Lyda Ann’s application to
determine heirship.1 See Crossland, 140 S.W.2d at 1097.
1
Haga challenges the probate court’s jurisdiction to, for example, rule on Jerry and
Lyda Ann’s application to determine heirship; he does not challenge whether
Galveston County is the proper venue for this dispute. We note that Probate Code
section 6 provides that if the decedent “had no domicile or fixed place of residence
in this State, and died outside the limits of this State,” the decedent’s will shall be
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We overrule Haga’s sole issue on appeal.2
Conclusion
We affirm the order of the probate court. All pending motions are dismissed
as moot.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
admitted to probate “in any county in this State where the decedent’s nearest of
kin reside.” TEX. PROB. CODE ANN. § 6 (Vernon Supp. 2012); id. § 6C(a)(1)
(Vernon Supp. 2012) (“Venue for a proceeding to determine a decedent’s heirs is
in . . . the court of the county in which a proceeding admitting the decedent’s will
to probate or administering the decedent’s estate was most recently
pending . . . .”). Lyda Ann, Zachary’s mother and nearest of kin, resides in
Galveston County.
2
As Jerry and Lyda Ann note, Haga does not, on appeal, challenge the merits of the
probate court’s summary judgment ruling, e.g., he does not contend that the
probate court erroneously determined that Haga is disqualified from recovering
assets under Zachary’s will pursuant to Probate Code section 69. Therefore, we
do not address these questions.
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