Estate of Foster
| Decision Date | 07 May 1999 |
| Citation | 3 S.W.3d 49 |
| Parties | (Tex.App.-Amarillo 1999) IN THE ESTATE OF GERTRUDE CHURCHWELL FOSTER, DECEASED NO. 07-98-0325-CV |
| Court | Texas Court of Appeals |
FROM THE 287TH DISTRICT COURT OF PARMER COUNTY; NO. 8122; HONORABLE JACK D. YOUNG, JUDGE
[Copyrighted Material Omitted]
Before QUINN and REAVIS and JOHNSON, JJ.
Appellant Barbara Trimble Whitmore (Whitmore) brings this appeal from two separate orders signed July 16, 1998, by the district court acting within its probate jurisdiction, one in which the trial court admitted the will of Gertrude Churchwell Foster dated August 6, 1993, to probate and authorized issuance of letters testamentary to appellees Billy Joe Foster and Marcia Foster Bell (Foster and Bell). The other order denied Whitmore's objection to the issuance of letters testamentary to Foster and Bell.
Presenting nine points of error, Whitmore contends the trial court erred in declaring that Foster and Bell did not contest the will in violation of the in terrorem provision of the will and challenges the appointment of Foster and Bell as independent co-executors of the estate. Based on the rationale expressed herein, we will affirm.
Gertrude Foster (Gertrude) and W. N. Foster were married in 1920, and six children were born of the marriage, to-wit: Murrell (Nicky) Foster, Ernestine Foster Feagen, Marcia Foster Bell, Billy Joe Foster, Barbara Trimble Whitmore, and Nelson Foster. Nelson Foster predeceased his parents and was survived by five children of his own. W. N. Foster died on February 8, 1996, and Gertrude died on January 20, 1998. On August 6, 1993, Gertrude and W. N. Foster, while residing in a rest home, executed separate, but common wills, which were prepared by an attorney who was also Whitmore's daughter.1 Among other common provisions, (i) the wills devised all the estate of the first spouse to die to the surviving spouse for the life of the surviving spouse and upon the death of the surviving spouse, the remainder to pass in accordance with other provisions, and (ii) each will contained a common in terrorem provision. Also, both wills appointed Foster and Bell as independent executors, and Whitmore as alternateor successor independent executor. Following the death of W. N. Foster, his 1993 will was admitted to probate and Foster and Bell were appointed independent executors of his estate.
After Gertrude's death, Foster and Bell applied to probate her 1993 will and for letters testamentary. Also, the application of Foster and Bell averred that if Gertrude's 1993 will was not admitted to probate, they requested that her 1991 will be admitted to probate and that they be appointed independent executors. Whitmore responded with an objection to the application of Foster and Bell to probate alternative wills contending that sections 81 and 83 of the Probate Code2 do not allow the filing of an application to probate alternate wills. Notwithstanding the fact that Foster and Bell would receive a greater economic benefit under the 1993 will, by point of error one, Whitmore contends that because the filing of the application to probate alternative wills and the hearing thereon constitute a will contest as a matter of law, the trial court erred in ordering that the "no contest clause" was not invoked. Also, by her second point, Whitmore contends the trial court's holding that the "no contest clause" was not invoked is against the great weight and preponderance of the evidence, and by her third point, Whitmore contends the "no contest clause" prohibited the filing of an application to probate alternative wills. We disagree. Because Whitmore briefed her first, second and third points together, we will combine them for purposes of our review.
Initially, we note that the Texas Rules of Civil Procedure govern proceedings in probate matters except as otherwise specifically provided, Cunningham v. Parkdale Bank 660 S.W.2d 810, 812 (Tex. 1983), and that Rule 48 provides that a party may set forth two or more claims in the alternative. Section 81 of the Probate Code sets out the required contents of an application for probate of a written will and letters testamentary and section 83 sets out the procedure pertaining to a second application; however, neither section prohibits the filing of two or more wills for probate, alternatively, in one application. The application of Foster and Bell first offered the 1993 will for probate, and was followed by the paragraph stating "if the will dated August 6, 1993 is not valid or is not entitled to be admitted to probate," then alternatively the application offered the 1991 will for probate. Here, because the district court was acting as a probate court, it had full probate jurisdiction, and also had the authority to exercise its powers as a court of general jurisdiction and could consider multiple wills. Harkins v. Crews, 907 S.W.2d 51, 56-57 (Tex.App.--San Antonio 1995, writ denied). In Harkins, the court observed that the action of the trial court furthered public policy of promoting judicial economy, and avoided a multiplicity of actions and encouraged resolutions in one proceeding. Accordingly, we hold that the filing of one application offering the 1993 will for probate, followed by the submission of the 1991 will for probate in the alternative, did not constitute a will contest as a matter of law.
Whitmore also contends the trial court's finding that the "no contest clause" was not invoked is against the great weight and preponderance of the evidence. We disagree. In reviewing a factual sufficiency or great weight and preponderance issue, we must review the entire record to determine if there is some evidence to support the challenged finding. We must then determine whether, in light of the entire record, the challenged finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In reviewing the evidence, we accord due deference to the trial court which, as the trier of fact presented with conflicting testimony, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). In its role, the court could believe any one witness, disbelieve other witnesses, and resolve inconsistencies in the testimony of any witness as well as in the testimony of different witnesses in order to arrive at the facts the court deemed most reasonable under the evidence. Id.
Because of our determination that the application of Foster and Bell offering the 1993 will and, alternatively, the 1991 will for probate did not amount to a will contest as a matter of law, we must now review the record under the appropriate standard of review. The application to probate the 1993 will and, alternatively, the 1991 will, does not allege that the 1993 will was not entitled to probate. To the contrary, the application alleged that the 1993 will was a "fully executed, self-proved and valid Will . . . ." According to their application, Foster and Bell sought to probate the 1991 will only "if the will dated August 6, 1993 is not valid or is not entitled to be admitted to probate." Because Foster and Bell did not contend that the 1993 will should not be admitted to probate by their application, we also review the reporter's record to complete our review.
Initially, we note that testamentary capacity, as distinguished from capacity to make a contract, Hamill v. Brashear, 513 S.W.2d 602, 607 (Tex.Civ.App.--Amarillo 1974, writ ref'd n.r.e.), only requires a showing that at the time the will was executed, the testator had sufficient mental ability: (1) to understand the business in which he was engaged, i.e. the making of a will; (2) to understand the effect of making the will; (3) to understand the general nature and extent of his property; and (4) to know the natural objects of his bounty and the claims upon them. Horton v. Horton, 965 S.W.2d 78, 85 (Tex.App.--Fort Worth 1998, no pet.).
The evidence here reflects that at the time she executed the 1993 will, Gertrude was residing in a rest home and was 91 or 92 years of age. During direct examination, Foster testified that he was not present when Gertrude executed the 1993 will, and after outlining some differences in the 1993 and 1991 wills, stated that it was not in his best interest that he contest the 1993 will. In her brief, Whitmore makes references to only four instances from the record contending that by his testimony, Foster impeached or contested the 1993 will; however, some of the references were to his cross-examination. The referenced portions of his testimony do not show that any questions were presented to Foster whereby he expressed any opinion as to his mother's testamentary capacity in accordance with the definition of testamentary capacity. Also, his testimony that he did not think his mother understood the will because she could not read due to impaired eyesight is not controlling for these purposes. Moreover, Whitmore acknowledged that Foster withdrew his challenge to testamentary capacity and stated that if the will had been read to his mother while the video tape was being made, he would not have objected to the will. However, because of the subjective nature of the questions and answers on cross-examination, and taking the questions and answers in context with his other testimony, we cannot say that the decision of the trial court that Foster did not contest the 1993 will by his testimony was erroneous.
Whitmore does not reference any portion of the record where she claims that Bell contested the will by her testimony, and we have found no such instances. Therefore, consideration being given to the rule that forfeiture provisions in a will are to be strictly construed and...
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