Estate of Davis, 06-07-00033-CV

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Court of Appeals of Texas, Sixth District, TexarkanaSep 12, 2007
No. 06-07-00033-CV (Tex. App. Sep. 12, 2007)

No. 06-07-00033-CV

Date Submitted: September 11, 2007.

Date Decided: September 12, 2007.

On Appeal from the County Court at Law Panola County, Texas, Trial Court No. 9,524.



Upon review of the clerk's record in this appeal, we have considered whether the trial court's partial summary judgment is a final and appealable probate order. Because we conclude that it is not, we dismiss the appeal for want of jurisdiction.


Charles Russell Davis and Lelia Holloway Davis (husband and wife) executed a joint and mutual will in 1988 which was followed by a joint and mutual codicil to that will in 1993. The Davises apparently had four children: Joyce Davis, Jeanne Davis Wylie, Nancy Davis Sargent, and Charles Sterling Davis.

References to Mr. Davis will be as "C. R." and references to Mrs. Davis will be as "Lelia." After their initial listing, references to their children will be by their first names only. Although some of the children's families are also involved in the devises and in the litigation, each child's family has assumed the same position of these children with whom they are associated and are not mentioned in this opinion by name.

In 1998, C. R. died and the 1988 will and its codicil were admitted to probate in the administration of his estate. Among other things, a provision of the 1988 will created a marital trust for the survivor; this trust was to be funded with $600,000.00 and the income from that trust was to the benefit of the survivor for the survivor's life, with the remainder (on the death of the survivor) to vest in Jeanne, Nancy, and Charles. Charles became trustee of this trust and was to be paid for that service. Except for certain specific devises, the balance of the estate passed to the survivor. Upon the demise of the survivor, the residue of the trust and the remaining assets would pass along in equal shares to Jeanne, Nancy, and Charles.

In November 2005, just over a month before her death, Lelia executed a holographic will which differed substantially from the joint and mutual will and codicil which she and C. R. had executed. Charles proffered this holographic will and, on February 9, 2006, it was ordered admitted to probate as Lelia's last will.

Jeanne and Nancy filed an application to set aside the order admitting the holographic will, claiming a lack of testamentary capacity and, alternatively, that undue influence had subverted Lelia's capacity to make a will. By a separate pleading, they urged the probate of the 1988 will and its 1993 codicil as the last will and testament of Lelia.

Jeanne and Nancy also filed an action in the Panola County district court which, among other things, sought a determination that Charles had breached his fiduciary duty as trustee, claiming that (1) because Lelia had elected to take under C. R.'s will, she had become irrevocably bound to its terms and (2) the 1988 will and its 1993 codicil were contractual wills between C. R. and Lelia, barring Lelia from changing the disposition which they made.

B. Consolidation and Competing Motions for Partial Summary Judgment

The district court case was transferred to the County Court at Law of Panola County and was subsequently consolidated with the will contest. On November 27, 2006, the trial court signed the agreed order of consolidation which provided that the following causes be consolidated:

(a) In Re: Estate of Lelia Holloway Davis, Deceased, Application to Probate Joint and Mutual Will and Codicil and for Appointment of Co-Independent Executrixes, Cause No. 9524, in the County Court of Panola County, Texas;

(b) In Re: Estate of Lelia Holloway Davis, Deceased, Application to Set Aside Order Probating Purported Will and Opposition and Contest to Such Purported Will, Cause No. 9524, in the County Court of Panola County, Texas;

(c) In the Matter of The C. R. Davis Testamentary Marital Trust and The CRLH Davis Irrevocable Testamentary Trust, Petitioners' Original Petition, in Cause No. 2006-441, in the District Court of Panola County, Texas, 123rd Judicial District.

Charles filed a motion for partial summary judgment, specifically challenging the claim of Jeanne and Nancy that the 1988 will and 1993 codicil were contractual. That is, Charles moved for summary judgment solely on the basis that the 1988 will and 1993 codicil failed to meet the requirements for a contractual will (i.e., the will contained no provision stating that a contract existed). See Tex. Prob. Code Ann. § 59A (Vernon Supp. 2006). Jeanne and Nancy responded with their own motion for partial summary judgment, urging their contention that the 1988 will and 1993 codicil did meet Section 59A's requirements for a contractual will.

On February 20, 2007, the trial court granted Charles's motion and denied the motion of Jeanne and Nancy, concluding that the 1988 will and its 1993 codicil are not contractual due to their failure to comply with the requirements of Section 59A for contractual wills, that the earlier will and codicil do not (on the theory that they are contractual wills) provide the basis for a constructive trust of the property Lelia owned at her death, and that they were subject to revocation. In other words, the order resolves one issue raised originally in Cause Number 2006-441. In doing so, the trial court's order eliminates one avenue pursued in Jeanne's and Nancy's attempts to set aside the probate of the holographic will and to have the 1988 will and its 1993 codicil admitted to probate. It does not entirely eliminate any means of doing so, however, because the trial court has not disposed of the allegations of the lack of testamentary capacity, the claim of undue influence having been imposed in order to elicit the execution of the will, or of the claim of Jeanne and Nancy that Lelia had some duties imposed on her because she had elected to take under the will of C. R.

On this record, it appears that no action has been taken with regard to any of those theories and, thus, they remain unresolved.

II. APPLICABLE LAW A. Determining Finality of the Order

"Not every interlocutory order in a probate case is appealable . . . and determining whether an otherwise interlocutory probate order is final enough to qualify for appeal, has proved difficult." De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). To determine whether an order in a probate matter is "final enough" under Section 5(g) of the Texas Probate Code and therefore appealable, the Texas Supreme Court has adopted the following test:

If there is an express [probate] statute, such as the one for complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995); see Tex. Prob. Code Ann. § 5(g) (Vernon Supp. 2006). Both parties agree that the first part of the Crowson test is not at issue; there is no statute at issue that provides that this order is a final, appealable judgment. It is the second portion of the Crowson test at issue here. So, we must consider whether the trial court's order granting summary judgment is a part of a proceeding in which other pleadings have raised issues that were left unresolved.

It appears that the application of Crowson's language regarding a "proceeding" may be a complicating factor. In arriving at its formulation of the test to be used, Crowson quoted with favor Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385, 386 (1945):

In order to authorize an appeal in a probate matter, it is not necessary that the decision, order, decree, or judgment referred to therein be one which fully and finally disposes of the entire probate proceeding. However, it must be one which finally disposes of and is conclusive of the issue or controverted question for which that particular part of the proceeding is brought.

Crowson, 897 S.W.2d at 781. Crowson itself utilized certain language from Estate of Wright, 676 S.W.2d 161 (Tex.App.-Corpus Christi 1984, writ ref'd n.r.e.), in pointing out that the order at issue did not dispose of a "whole `particular phase.'" Crowson, 897 S.W.2d at 782. The Texas Supreme Court would later use similar language: "[U]nder Crowson, the trial court's order [denying a plea to the jurisdiction and denying removal of executor] was interlocutory because it did not dispose of all parties or issues in a particular phase of the proceedings"; the order "does not end a phase of the proceedings, but sets the stage for the resolution of all proceedings." De Ayala, 193 S.W.3d at 579.

B. Cases on Which the Parties Rely

Jeanne and Nancy point to Sanders v. Capitol Area Council, BSA, 930 S.W.2d 905, 909 (Tex.App.-Austin 1996, no writ), to support their position that the partial summary judgment is a final and appealable probate order. In Sanders, the Austin court examined an order entered in the complex probate and trust litigation in terms of the Crowson test. Id. At issue in Sanders was who (between the Boy Scouts Council and the decedent's daughter) was to receive a 5,000-acre ranch and how it was to be received (by will or as secondary beneficiary of the trust). Id. at 907-08. The trial court granted the Council's motion for summary judgment in part, concluding that the ranch reverted to the decedent's estate because the decedent had exercised her power of appointment, through which she had deleted her "legal heirs" on the trust document.

This precise basis for summary judgment was not advanced in the Council's motion for summary judgment, a situation which led the court to reverse the trial court's order and remand the case. Sanders, 930 S.W.2d at 911. The case would come back to the Austin court in 1998. See Sanders v. BSA, No. 03-97-00345-CV, 1998 Tex. App. LEXIS 6354 (Tex.App.-Austin Oct. 15, 1998, pet. denied) (not designated for publication).

In their motion for rehearing after the Austin court reversed the trial court's judgment, the Council asserted that the trial court's order granting partial summary judgment that characterized the property was not appealable and that, accordingly, the Austin court lacked jurisdiction over Sanders's appeal. The Austin court noted that the trial court ordered the case to proceed in certain steps:

In the present case, the trial court ordered the case to proceed with the issues grouped as follows: (1) the causes of action regarding the validity of the trusts and the will contest shall be consolidated and tried first; (2) the causes of action seeking declarations construing the trusts and the will shall be consolidated and tried next; and (3) the claims for reimbursement and/or damages shall be consolidated and tried only after the above issues have been determined.

Id. at 909. The Austin court observed that the partial summary judgment that characterized the property appeared to have completed a phase of the probate proceedings, "either the first or second (or both) of the trial court's three groupings." Id. The Sanders court stated its interpretation of Crowson:

We do not read Crowson as eliminating the idea that a probate matter can proceed in discrete "phases"; rather, we believe the court's holding to be simply that a phase must generally be completed before an appeal may be taken.

Id. Perhaps recognizing how difficult determining the Crowson question can be, however, the Austin court avoided making a specific holding on the issue of whether the partial summary judgment was an appealable probate order. Instead, the court decided that it did have jurisdiction based on the rules regarding a prematurely-filed appeal and treated the appeal as one from the subsequent order admitting the will to probate. Id. at 909-10. So, Sanders actually concludes that the court had jurisdiction on an entirely different basis.

Here, as in Sanders, there is a consolidation order. However, while the Sanders consolidation order specifically delineated the sequence in which the litigation would thereafter proceed, the consolidation order here simply identifies the issues to be addressed in the consolidated action. We also note that the Sanders consolidation order divided the litigation into rather broad stages; it did not parcel out specific issues. Therefore, to the extent that Sanders can be read to stand for the proposition that a trial court consolidation order can aid in determining whether an order is final and appealable, we distinguish the instant case from the facts in Sanders.

We again note that the Sanders opinion does not decide the jurisdictional issue on the basis that the order granting partial summary judgment was final. In fact, the Sanders court instead "assume[d] without deciding that the partial summary judgment . . . was not, itself, an appealable order" and went on to decide the issue by relying on rules regarding prematurely-filed notices of appeal. See Sanders, 930 S.W.2d at 910.

Charles relies on In re Estate of Willett, 211 S.W.3d 364, 367 (Tex.App.-San Antonio 2006, no pet.), to support his position that the partial summary judgment is interlocutory and, therefore, not ripe for appeal. In Willett, the parties' litigation stemmed from the widow's act of having changed her will shortly after she took under her husband's will, that will including language depicting an agreement to make mutual wills and that upon the death of the survivor, their seven children would receive all of the property. After the husband died, the wife probated the will and elected to take under it. Despite this election, less than one month later, the wife executed a new will, leaving her entire estate to only one daughter. Id. at 365-66. After the wife died, the daughter/sole beneficiary probated the new will and took under the terms of that will. Id. at 366. The beneficiaries who were named in the husband's will (and the wife's old will) sued the daughter for breach of contract, promissory estoppel, breach of fiduciary duty, forfeiture of inheritance, conspiracy, and conversion, and sought a declaratory judgment, an accounting, a constructive trust, and actual and exemplary damages. Id.

The trial court granted the would-be beneficiaries' motion for summary judgment in part, concluding that the husband's will was probated as an "election will," that the wife was bound by its terms to leave specified portions of the estate to named beneficiaries, and that the interest of the estate designated to pass to the daughter who took as sole beneficiary under the purported new will would be suspended during the remainder of the trial. Id. The trial court also ordered that trial on the remaining causes of action, specifically forfeiture of the daughter's inheritance over and above what she would receive had the original will been in effect, damages, attorney's fees, and constructive trusts, be set.

The San Antonio court concluded that the trial court's order was not a final, appealable order:

Plainly, the appellees' petition raises issues not disposed of by the trial court's order. By its very terms, the partial summary judgment order does not dispose of the issue of whether [the daughter] is entitled to possession of her one-fourth interest in [the father's] estate; rather, the order expressly provides that this interest "shall remain in suspense pending trial in this cause." Cf. In re Estate of Padilla, 103 S.W.3d 563, 566 (Tex.App.-San Antonio 2003, no pet.) (mem. op.). The partial summary judgment order also does not dispose of the appellees' remaining causes of action; rather, the order expressly orders these causes of action set for trial. Nor is there an order severing the trial court's partial summary judgment, as there was in Crowson.

Id. at 367. The court then dismissed the case for want of jurisdiction.


We first note that the effect of the trial court's order in Willett has the opposite of the effect of the order at issue here. That is, in Willett, the effect of the order was that the wife was to be bound to the terms of the mutual wills. In Willett, unlike here, the trial court also made specific rulings as to certain issues, specifically designating that remaining "causes of action" would be set for trial. Nonetheless, we see the order at issue here more akin, in terms of finality, to the order examined in Willett. Here, the trial court found that Lelia had not been bound by the terms of the 1988 mutual will and its codicil on the basis that it was a contractual will and that the issue of contractual will would not be a bar to revocation, the practical effect being that the 2005 will is still in effect unless Jeanne and Nancy successfully challenge it on the basis of undue influence and lack of testamentary capacity. The summary judgment also did not deal with the issue of whether Lelia was bound to certain terms of C. R.'s will because she had elected to take under it.

It is this condition on which we focus. To apply either part of the Crowson test, we must first identify the phase of the probate proceeding at issue. See id. We look at this litigation as one involving at least two phases: (1) which will controls the distribution of the estate, and (2) under the governing will, what is the proper funding and management of the testamentary trusts. We see the application by Jeanne and Nancy to set aside the probate of the 2005 holographic will, the application for the probate of the 1988 will and its codicil, and the determination of any rules which may apply should it be determined that there are consequences to her having made an election to take under C. R.'s will as one relevant distinct phase of the proceeding at issue here, at the end of which the trial court will have decided which will governs the distribution of the estate.

The order here resolves only one issue in this larger phase of the proceeding and, thus, leaves issues raised in that phase unresolved as did the order in Willett. The trial court's order, then, disposes of only one of the issues raised in the first phase. That one issue is the contractual will issue. However, it leaves open the issues concerning the lack of testamentary intent and undue influence as they impact the validity of the 2005 holographic will and the issue of the election by Lelia to take under C. R.'s will. Put another way, the trial court's order concludes that the 1988 will and its 1993 codicil were not contractual and that the issue of contractual wills is not a bar to revocation by her; it does not conclude whether the 2005 holographic will was effective in revoking the 1988 will and its 1993 codicil and does not deal with the issue of election. That said, the trial court's order does not fully address the issues raised in the first distinct phase of the proceeding. It does not finally conclude which will controls the distribution of the estate. The order is, therefore, interlocutory in nature and not final and appealable.

Of course, the trial court's summary judgment does not directly address the matters originally raised in Cause Number 2006-441 regarding the allegations involving the trusts. However, the trial court's conclusion that the 1988 will and its 1993 codicil were not contractual and were subject to revocation on that theory does indirectly affect the allegations in the trust matter. Many of the issues raised in the trust litigation appear to be intimately linked to whether the 1988 will and its 1993 codicil are admitted to probate. Nevertheless, the order does not dispose of any claim related to the trust litigation. We are less concerned that the trust issues remain unresolved than we are that the other will issues remain. More important to our analysis is the fact that the other will issues remain unresolved since those issues still leave open the possibility that the trial court could determine that the 2005 holographic will should not have been admitted to probate.

The Texas Supreme Court has reiterated that litigants can and should seek a severance order to ensure efficient review of orders in probate proceedings: "Recognizing the inherent difficulties in applying any test to determine appealability, we urged parties to seek severance orders to eliminate ambiguities about whether the order was intended to be final and appealable." De Ayala, 193 S.W.3d at 578 (citing Crowson, 897 S.W.2d at 783).

Accordingly, we dismiss the appeal for want of jurisdiction.