In re Estate of Boren

• Decision Date: 03 October 2008
• Docket Number: No. 06-07-00104-CV.,06-07-00104-CV.
• Citation: 268 S.W.3d 841
• Parties: In re the ESTATE OF Sarah E. BOREN, Deceased.
• Court: Texas Court of Appeals

268 S.W.3d 841

In re the ESTATE OF Sarah E. BOREN, Deceased.

No. 06-07-00104-CV.

Court of Appeals of Texas, Texarkana.

Submitted August 13, 2008.

Decided October 3, 2008.

Robert G. Chadwick, Jr., Campbell & Chadwick, PC, Dallas, TX, for appellant.

Jeff C. Starnes, McLaughlin, Hutchinson, Starnes & Biard, LLP, Paris, TX, for appellee.

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

OPINION

Opinion by Justice MOSELEY.

The previous ruling in this case as decided on September 4, 2008,¹ is withdrawn and this opinion is rendered in its stead.

Sarah E. Boren's last will and testament named her nephew, Richard Finley, as her first choice to serve as the independent executor of her estate, with his mother, Jeanetta Finley (Sarah's sister-in-law), as his alternative or successor. The will also devised her estate in equal shares to Richard and Jeanetta as her sole beneficiaries if her husband, Charles Boren, did not survive her. The trial court entered an order refusing Richard's application for probate and his application for appointment as independent executor. The trial court also impliedly ruled that Richard and Jeanetta had effectively disclaimed any claim to inheritance under Sarah by signing documents which complied with Section 37A of the Texas Probate Code.

Richard had served as attorney-in-fact for Sarah and her husband, Charles, neither of whom had children. However, Charles was determined incapacitated and a guardian of his estate was appointed; the issuance of the letters of guardianship rendered the durable power of attorney given by Charles no longer effective.²

Charles's guardian had made application for the sale of real estate and this application was pending at Charles's intestate death in December 2004. Richard, who still held the authority granted him under Sarah's power of attorney, had opposed the sale of the real estate. However, after Charles's death, Richard voiced dismay over the conflict among the family. Dee Boren (Charles's brother) testified that Richard told relatives that it was his desire to mend rifts in the family; Dee further testified that as he and Richard stood over Charles's coffin, Richard said, "[M]e and Momma is going to sign a waiver or papers and remove ourselves from this." Richard testified further that, "He [Finley] said I know we're not entitled to nothing that Charles has got, and he said I want the family to get back close, said I promise you I will do that." Beverly Parks (Charles's niece and his guardian at the time of his demise) said that Richard had told her that it was his desire to ameliorate the conflicts within the family and that, "He said what do I have to do to get this family back together?" She further stated that Richard had told her that peace in the family was extremely important to him, that he did not need or want anything that Sarah or Charles had owned, and inquired if there was anything he could sign or anything he could do to demonstrate that fact and thus assuage the hard feelings against him within the extended families of Charles and Sarah. Richard later told Parks that he had spoken with Jeanetta and that she was in agreement with him to sign such an agreement in order to "get the family back together." Parks indicated that, relying on these conversations, she had her attorney prepare the waiver/disclaimers in controversy.

Richard retrieved the documents prepared by Parks's lawyer and took them to an attorney of his own who, although he did not read them and did not comprehend their content, advised Richard to sign them. Richard and Jeanetta then signed the disclaimers and returned them to Parks's attorney, who caused them to be filed in the papers of the Charles Boren guardianship, which had yet to be closed. These disclaimers were entitled, "Waiver of Service, Waiver of Interest, and Approval and Consent to Sale of Real Property"; after two sentences which recited the appearance and identity of the signors, each of the documents states, "I hereby waive any interest or claim I have or may have in or against their [i.e., Charles's and Sarah's] respective estates by will, inheritance, right of survivorship, or otherwise." Richard subsequently indicated that he believed the disclaimers to do nothing more than to consent to the sale of real estate, expressing ignorance that these had the effect of terminating any claims he had under the will of Sarah.

However, on January 7, 2005 (eight days after the disclaimers had been filed in the guardianship), two things happened on the same date: (1) Richard and Jeanetta filed revocations of the disclaimers which they had previously signed, and (2) Sarah died.

On August 29, 2006, Richard filed an application for the probate of Sarah's will which also requested his appointment as independent executor; this application was countered with two separate contests: one filed by Parks and another by Marcella Matney, Sarah's sister.

After a hearing before the court, the trial court rejected the contest filed by Parks on the basis that although she was an heir-at-law of Charles, she did not occupy a similar position in regard to Sarah's estate; she, therefore, did not have standing to contest the application. However, the court found Matney to have standing to challenge Richard's application.

The order entered by the court denied the application of Richard for the probate of the will of Sarah. It also made evidentiary findings (1) that the disclaimers of Richard and Jeanetta "were in substantial compliance with Section 37A of the Texas Probate Code," (2) that the disclaimers were signed knowingly and voluntarily by them, and (3) that Richard was an unsuitable person to act as executor because of demonstrated violations of his fiduciary duties to Charles and Sarah and it would be improper to name him because of discord and animosity between him and other relatives of Sarah.

JURISDICTION OVER APPEAL

Neither party raised any question of whether this Court has jurisdiction over this appeal and at oral arguments, both maintained that this is an appealable order. Despite that, the first inquiry an appellate court must make in any case is whether it has jurisdiction to consider the appeal. See Materials Evolution Dev. USA, Inc. v. Jablonowski, 949 S.W.2d 31, 33 (Tex.App.-San Antonio 1997, no pet.); McClennahan v. First Gibraltar Bank F.S.B., 791 S.W.2d 607, 608 (Tex.App.-Dallas 1990, no writ). If the appellate court lacks jurisdiction, the appeal must be dismissed. See Jablonowski, 949 S.W.2d at 33; McClennahan, 791 S.W.2d at 608. Generally, appellate jurisdiction exists only in cases in which a final judgment has been rendered that disposes of all issues and parties in the case. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992). It is fundamental error for an appellate court to assume jurisdiction over an interlocutory appeal when it is not expressly authorized by statute. See New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678-79 (Tex. 1990).

Section 5(g) of the Texas Probate Code provides that "[a]ll final orders of any court exercising original probate jurisdiction shall be appealable to the courts of appeals." TEX. PROB.CODE ANN. § 5(g) (Vernon Supp.2008). However, other than certain provisions in the Code that certain orders are final and appealable (e.g., TEX. PROB.CODE ANN. § 55(a) (Vernon 2003), which declares a determination of heirship to be final and appealable), the Probate Code does not clarify which orders are final and appealable. Young v. First Cmty. Bank, N.A., 222 S.W.3d 454, 456 (Tex.App.-Houston [1st Dist.] 2006, no pet.).

As a general rule, appeals are only available from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001). Similarly, except when "specially provided by law," there may be but "one final judgment" rendered in any cause. TEX.R. CIV. P. 301. However, Texas law has long recognized that probate proceedings may involve multiple judgments "on certain discrete issues," each of which may be "final for purposes of appeal." De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex.2006).

In the case before us, although the application of Richard (named in the will of Sarah to serve as independent executor without bond) to be appointed executor was rejected, there was no personal representative of the estate of Sarah appointed.³ The right to serve as the executor of an estate is a "substantial right" and a denial of that right is a final and appealable order. In re Estate of Vigen, 970 S.W.2d 597, 599 (Tex.App.-Corpus Christi 1998, no pet.). To be appealable, the order only has to finally dispose of the issue or controverted question for which that particular part of the proceeding was brought. TEX. PROB.CODE ANN. § 5(g); Taliaferro v. Tex. Commerce Bank, 660 S.W.2d 151, 153 (Tex.App.-Fort Worth 1983, no writ). Thus, a probate order is appealable if it "finally adjudicates a substantial right." Spies v. Milner, 928 S.W.2d 317, 318 (Tex. App.-Fort Worth 1996, no writ); Vineyard v. Irvin, 855 S.W.2d 208, 210 (Tex.App.-Corpus Christi 1993, no writ).

We determine that the order denying Richard's application to serve as independent executor was the determination of a substantial right and, as such, was a final and appealable order which we have jurisdiction to review.

DISPOSITION OF FIRST THREE POINTS OF ERROR

Richard's first three points of error maintain (1) that the trial court erred in finding that Richard had refused to serve as executor or resigned as executor pursuant to Section 76 of the Texas Probate Code; (2) that the trial court erred in finding that a disclaimer executed by Richard pursuant to Section 37A of the Texas Probate Code barred Richard from appointment as executor; and (3) that the trial court erred in finding that Richard had waived his right to appointment as executor by signing the disclaimer. However, there is neither anything in the order signed by the trial court nor in the findings of fact and conclusions of law...