Escontrias v. Apodaca

• Decision Date: 17 March 1982
• Docket Number: No. C-758,C-758
• Citation: 629 S.W.2d 697
• Parties: Isabela ESCONTRIAS et al., Petitioners, v. Solomon J. APODACA et al., Respondents.
• Court: Texas Supreme Court

Page 697

629 S.W.2d 697

Isabela ESCONTRIAS et al., Petitioners, v. Solomon J. APODACA et al., Respondents.

No. C-758.

Supreme Court of Texas.

March 17, 1982.

Brewster & Mayhall, Jack L. Brewster, El Paso, for petitioners.

Roger L. Moore, El Paso, for respondents.

POPE, Justice.

This suit attacks the validity of Adelaida Apodaca's will that was executed on November 28, 1971, and admitted to probate on December 12, 1974. On June 6, 1978, Solomon J. Apodaca and ten other heirs brought suit against Isabela Escontrias and Angelina Castaneda, the independent executrices of Adelaida's estate. They prayed that the order probating the will be set aside because Adelaida lacked testamentary capacity and succumbed to undue influence that amounted to a fraud upon her estate. The defendant executrices pleaded the two-year statute of limitations as provided in section 93 of the Texas Probate Code:

After a will has been admitted to probate, any interested person may institute suit in the proper court to contest the validity thereof, within two years after such will shall have been admitted to probate, and not afterward, except that any interested person may institute suit in the proper court to cancel a will for forgery or other fraud within two years after the discovery of such forgery or fraud, and not afterward ....

The trial court granted the defendant executrices' motion for summary judgment upon the basis of their limitations' claim. The court of civil appeals reversed the judgment, 624 S.W.2d 600. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The court of civil appeals in reversing the summary judgment held that the defendant executrices had the burden on their motion for summary judgment to prove not only the passage of more than two years from the date of the will's probate, but also to prove as a matter of law that "there was no influence nor, if there was influence, it was not undue, nor that even if the influence was undue, it was not exerted so as to subvert the mind of the testatrix at the time of the execution of the testament ...."

We hold that the movants for the summary judgment grounded upon the two-year statute of limitations did not have to prove as a matter of law there was no undue influence. The executrices discharged their burden by showing that the plaintiff heirs discovered or, in the exercise of ordinary diligence, should have discovered any undue influence and that the heirs failed to institute a suit for more than two years after they made the discovery. Mooney v. Harlin, 622 S.W.2d 83 (Tex.1981); see Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967); Wise v. Anderson, 163 Tex. 608, 611-12, 359 S.W.2d 876, 879 (1962); Sherman v. Sipper, 137 Tex. 85, 89-90, 152 S.W.2d 319, 321 (1941).

The defendant executrices produced at the summary judgment hearing an affidavit and a deposition by Solomon Apodaca and the answers by the plaintiff heirs to interrogatories. The statements in those documents by the plaintiff heirs disclosed their knowledge of the claimed fraud more than two years before they instituted this suit.

The answers to the interrogatories stated that prior to the time the testatrix executed the will in 1971, she had undergone two operations for the removal of blood clots from her head. The plaintiff heirs stated that from the time of the operations to the time Mrs. Apodaca died, they were not permitted to visit the testatrix, that Mrs. Apodaca's attitude toward her children underwent a drastic change, and that she did not function mentally as she had...