In re Estate of Bean

• Decision Date: 31 October 2006
• Docket Number: No. 06-05-00102-CV.,06-05-00102-CV.
• Citation: 206 S.W.3d 749
• Parties: In re ESTATE OF Mary Ann BEAN, Deceased.
• Court: Texas Court of Appeals

206 S.W.3d 749

In re ESTATE OF Mary Ann BEAN, Deceased.

No. 06-05-00102-CV.

Court of Appeals of Texas, Texarkana.

Submitted October 4, 2006.

Decided October 31, 2006.

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Randal J. Bays, Kristin Bays, Bays & Bays, Conroe, for appellant.

Emma-Louise J. Edwards, Longview, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

This is an appeal from a judgment on a jury verdict construing Mary Ann Bean's will. Paragraph 6(3) of Bean's will devises "the eighty (80) acres I own in the J. Bennett Survey." The current dispute arose because Bean did not expressly own "80 acres in the J. Bennett Survey." William Shore is both the independent executor and a devisee of his great-aunt Bean's estate. Shore's cousins are Tom G. DeWitt, III, James J. DeWitt, and Marlo DeWitt Senick (the DeWitts). The DeWitts asked the court to declare which interest(s) passed under paragraph 6(3) and which under the residuary clause (devising everything remaining to the DeWitts).¹ After a jury trial, the judge declared the DeWitts to have prevailed, detailed the contours of the paragraph 6(3) conveyance, and assessed attorney's fees against Shore, individually. Shore and his son, Brenham² (collectively, the Shores) appeal.

The Shores, jointly, raise one issue: lack of jurisdiction. Shore, individually, raises three additional issues: (1) violation of Rule 301—judgment inconsistent with the pleadings, evidence, and verdict; (2) improper withdrawal of the surface estate from the jury; and (3) improper attorney's fees. We conclude the trial court properly exercised jurisdiction over this probate matter and essentially entered a proper declaratory judgment, which requires only slight modification. The trial court erred in assessing fees, and remand on this issue is required.

I. FACTUAL AND PROCEDURAL BACKGROUND

These parties are before this Court for the third time.³ The DeWitts' current petition sought partition, accounting, and distribution of the estate; a declaratory judgment to construe the will; and removal of Shore as the independent executor. The DeWitts sought a declaration (1) that nothing passed under paragraph 6(3); or, alternatively, (2) "describing the interest which passes pursuant to paragraphs [sic] 6(3)" and which interest(s) through the residuary. More than a year after the DeWitts' application, Shore executed and filed an executor's deed consistent with his construction of paragraph 6(3). The same day, Shore filed an application for discharge and "Verified Final Accounting," claiming full administration of the estate. The trial court then ordered, in an agreed temporary injunction, that Shore and the DeWitts refrain from taking further action on the estate without court action. The DeWitts supplemented their petition to include voiding Shore's executor's deed purporting to convey property pursuant to paragraph 6(3). The case then went to jury trial to determine Bean's intent in paragraph 6(3).

A. The Will Language

The relevant portions of paragraph 6(3), as amended by two codicils, read:

Regarding the eighty (80) acres I own in the J. Bennett Survey, I give a life estate to my great-nephews, TOM G. DeWITT, III, JAMES J. DeWITT and WILLIAM R. SHORE, JR., ... as life tenants the right to collect, receive, receipt for, use, enjoy, possess and consume the income from the gas well on the property....

At the death of WILLIAM R. SHORE, JR., I bequeath his one-third share to BRENHAM SHORE, in fee simple.

Upon the death of either TOM G. DeWITT III or JAMES J. DeWITT, I bequeath his one-third share of the life estate to MARLO ANN DeWITT and WILLIAM R. SHORE, JR., equally, as a life estate. Upon the death of the survivor, then I bequeath the entire life estate to BRENHAM SHORE, in fee simple.

B. The Ambiguity

At trial, the uncontroverted evidence indicated the extent of the estates that Bean owned and might have contemplated devising under paragraph 6(3). Back in the 1930s, Bean's parents acquired several properties, totaling 425.59 acres. In 1972, Bean and her siblings partitioned the surface, creating Bean's 77.83-acre surface estate. The siblings expressly excepted the mineral estate from the partition; each sibling still owned a 1/5 undivided interest in the 425.59-acre mineral estate. At the time she drafted her will in 1995 and at her death in 2000, Bean owned the 77.83-acre surface estate in the Bennett and Chaddick surveys and the 1/5 undivided interest in the 425.59-acre mineral estate in the Bennett, Chaddick, McAnulty, and Ravey surveys. On questioning by the Shores at trial, James DeWitt agreed that the 1/5 interest in the 425.59-acre mineral estate constituted a "mineral estate of 85.1 acres."

The Shores took the position that Bean intended to convey both the surface estate and the entire mineral estate. In support, the Shores introduced evidence of other devises in Bean's will that approximated the acreage of the estates and surveys involved. The DeWitts, in support of their position that paragraph 6(3) conveyed only one gas well, submitted evidence of sixteen wells, including one on Bean's 77.83 surface acreage, from which Bean drew income. The Shores presented evidence that only three of these sixteen wells were on the 425.59-acre tract, since Bean's interest was pooled. They also, to refute the "one well" theory, presented evidence that the well on the 77.83 surface acres was not drilled until after both the will and the first codicil (but before the second codicil) were signed.

C. The Jury Charge

The Shores submitted a proposed jury question, denied by the court, that asked whether paragraph 6(3) conveyed the mineral interest in the 425.59-acre tract. Question 2, as initially presented by the court at the charge conference, asked whether Bean conveyed "one particular gas well or . . . her undivided mineral interest in the real property." (Emphasis added.) The Shores did not object to this question. The DeWitts did object and asked the court to change "in the real property" to "in the 77.83 acre tract." The change essentially removed the Shores' position from the jury's consideration. The court, on the record, overruled the DeWitts' objection. The court also ruled that the surface estate was unambiguously not included in paragraph 6(3).

When the court charged the jury, however, it asked about the surface estate and incorporated the overruled DeWitts' change to Question 2. The jury was charged and answered as follows:

QUESTION 1.

Do you find that the "eighty (80) acres I own in the J. Bennett Survey" in paragraph 6(3) of the Last Will and Testament of Mary Ann Bean is the 77.83 acre tract owned by Mary Ann Bean at the time of her death?

Answer "Yes" or "No."

Answer: Yes

If you have answered "Yes" to Question 1, then answer the following question. . . . .

QUESTION 2.

Do you find that Mary Ann Bean intended to convey her interest in one particular gas well or her undivided interest in the 77.83 acre tract?

Answer "one particular gas well" or "her undivided mineral interest."

Answer: "her undivided mineral interest."⁴

The judgment declared that paragraph 6(3) conveyed the minerals situated "in and under and that may be produced and saved from" the boundaries of the 77.83-acre surface tract, with the remainder of Bean's real property (save that described in two other will paragraphs not at issue), including the 77.83-acre surface estate and the remaining 347.76-acre mineral estate passing to the DeWitts through the residuary.

Though the Shores appear to have properly objected to and preserved error on the jury questions below, they do not raise this error on appeal.⁵ Instead, the Shores' appeal progresses on the presumption that the jury was asked about Bean's entire undivided mineral interest (i.e., 77.83 means 1/5 of 425.59).

II. JURISDICTION

A. Standard of Review

A trial court's subject-matter jurisdiction is a question of law an appellate court reviews de novo by examining the pleadings and any other evidence relevant to the determination. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002).

The Shores make two jurisdictional challenges. First, that the court has no jurisdiction to construe a will or order partition and distribution under independent administration. Second, that this particular independent administration was closed at the time of the trial, thereby divesting the court of jurisdiction.

B. Jurisdiction to Construe a Will Under Independent Administration

We have already ruled on the first jurisdictional challenge in this case. See Bean I, 120 S.W.3d at 919 ("pursuant to the UDJA [Uniform Declaratory Judgments Act], the trial court was not deprived of jurisdiction to construe Bean's will merely because it had appointed an independent executor"). The Shores ask us to reconsider that decision.

As before, the Shores rely on Section 145(h) of the Texas Probate Code, which prohibits "further action of any nature" in the county court "except where the Code specifically and explicitly provides for some action in the county court."⁶ TEX. PROB.CODE ANN. § 145(h) (Vernon 2003). The Shores contend that Section 145(h) requires specific and explicit reference to only those sections of the Texas Probate Code detailing independent administration, yet they provide no authority to support the contention that Section 145(h)'s reference to "the code" actually means "this chapter of the code." As the Shores' interpretation is unsupported, and is in direct conflict with the actual statutory language, we are unpersuaded.

Section 5(f) of the Probate Code both specifically and explicitly states: "All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate." TEX. PROB. CODE ANN. § 5 (Vernon Supp.2006).⁷ Section 5A(a) further clarifies matters by defining "incident to an estate" as including, but...