In re Estate of Robinson

• Decision Date: 01 July 2004
• Docket Number: No. 13-02-557-CV.,13-02-557-CV.
• Citation: 140 S.W.3d 801
• Parties: In re The ESTATE OF Velma Lee ROBINSON, Deceased.
• Court: Texas Court of Appeals

140 S.W.3d 801

In re The ESTATE OF Velma Lee ROBINSON, Deceased.

No. 13-02-557-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

July 1, 2004.

Rehearing Overruled August 19, 2004.

Appeal from the County Court, Jackson County, John Hutchison, II, J Cynthia T. Sheppard, Cuero, for appellant.

Larkin Thedford, Robert E. Bell, Edna, Elizabeth M. Provencio, Denton, Navarro, Rocha & Bernal, P.C., San Antonio, James J. Hartnett Jr., Will Ford Hartnett, R. Kevin Spencer, Hartnett Law Firm, for appellees.

Before Justices RODRIGUEZ, CASTILLO, and WITTIG¹.

OPINION

Opinion by Justice RODRIGUEZ.

This is a probate matter concerning the qualification and appointment of a co-executor of the estate of Velma Lee Robinson (the Estate). By one issue, appellant, Garland Sandhop, Sr., complains of the sufficiency of the evidence to support his disqualification as an executor of the Estate. We reverse.

I. Background

Following Robinson's death, the trial court admitted her 1995 will to probate, the primary beneficiaries of which were family members, including the Ayers and Cavitt families.² Appellee, Mary H. Thedford,³ and others filed a will contest alleging Robinson lacked testamentary and mental capacity when she signed the 1995 will and related estate documents and was unduly influenced. The will contestants offered Robinson's 1983 will for probate, the primary beneficiary of which was the Velma Lee and John Harvey Robinson Charitable Foundation (the Foundation). Appellant did not join as a plaintiff in the will contest. He was, however, identified as a necessary party and filed a pro se general denial. After a jury trial, Robinson's 1995 will was set aside as invalid, and her 1983 will was admitted to probate.⁴

Following the successful will contest, appellant, a named co-executor of the 1983 will, filed a motion to be appointed co-executor of the estate. Appellee, also named as a co-executor in the 1983 will, filed a motion to disqualify appellant.⁵ Appellee alleged appellant was unsuitable to serve and should be disqualified because: (1) appellant represented the defendants who were promoting the 1995 will in the will contest; (2) appellant took a position in the will contest in support of the 1995 estate plan, which was directly opposed to supporting the 1983 estate plan; (3) appellant was duty bound to support the 1983 estate plan but did not do so and testified that it was not his responsibility to do so; (4) appellant was a material fact witness in the will contest in favor of and in support of the 1995 estate plan; and (5) appellant's position was in inherent conflict with his duties as independent co-executor under the 1983 will and/or co-trustee of any trust executed by Robinson prior to 1995.

The trial court heard appellee's motion to disqualify and appellant's motion to be appointed co-executor. Appellant was called as the only witness. Documents admitted into evidence for purposes of the hearing included the following: (1) appellant's answer and amended answer in the will contest; (2) two option agreements; and (3) the Secretary of State's certification of the court-ordered reinstatement of the Foundation. After hearing the application and motion and considering the pleadings, evidence, arguments and authorities cited, the trial court found appellant unsuitable to serve as co-executor of the Estate. The court ordered appellant disqualified and denied his application for appointment. Appellee was appointed as the sole dependent executor with bond.⁶ The court entered findings of fact and conclusions of law. This appeal ensued.

II. JURISDICTION

We first determine, sua sponte, our jurisdiction to consider this appeal. N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex.1990). The supreme court has set out the following test for determining whether an order arising from probate proceedings is final or interlocutory:

If there is an express statute, such as the one for the 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). In In re Estate of Vigen, 970 S.W.2d 597, 599 (Tex.App.-Corpus Christi 1998, no pet.), we held that an order settling someone's rights as an executor was a final, appealable order. Id.; see Spies v. Milner, 928 S.W.2d 317, 318-19 (Tex.App.-Fort Worth 1996, no writ) (order denying Spies's application found to be final, appealable order).

In the present case the trial court found appellant to be unsuitable to serve as independent co-executor of the Estate. The court disqualified appellant from serving and denied his application to be appointed co-executor. The trial court's order clearly settled appellant's claim to be a co-executor. There are no ongoing proceedings relevant to this issue, and there are no pleadings that are part of that proceeding that concern undisposed-of issues or parties. See Crowson, 897 S.W.2d at 783. Thus, we conclude that the order upon which this appeal is based is final as to appellant's rights as a co-executor and, as such, is an appealable order.

III. DISQUALIFICATION

A. The Law

Section 77 of the probate code provides priority in the grant of letters testamentary to the executor named in a will if that person is qualified to act. See Tex. Prob.Code Ann. § 77(a) (Vernon 2003). However, a person may be disqualified to serve as an executor if the court finds the person "unsuitable." Id. § 78(e). When an applicant is among those named in the probate code as a person entitled to priority, as in this instance, the party opposing the appointment has the burden of establishing the applicant's disqualification. Monson v. Betancourt, 818 S.W.2d 499, 500 (Tex.App.-Corpus Christi 1991) (orig.proceeding) (citing Powell v. Powell, 604 S.W.2d 491, 493 (Tex.Civ.App.-Dallas 1980, no writ)). Therefore, appellee, who opposed appellant's motion, had the burden of proving appellant was unsuitable to be co-executor of the Estate.

Unsuitability is not defined in the probate code, and case law has recognized no comprehensive, discrete explanation delineating attributes that make someone unsuitable under the probate code. See Dean v. Getz, 970 S.W.2d 629, 633 (Tex.App.-Tyler 1998, no pet.) (citing Boyles v. Gresham, 158 Tex. 158, 163, 309 S.W.2d 50, 53-54 (1958) and Olguin v. Jungman, 931 S.W.2d 607, 610 (Tex.App.-San Antonio 1996, no writ)). While there is no "bright line" test to be applied, generally a person claiming ownership of property, to the exclusion of the estate, is deemed unsuitable because of the conflict of interest between the person and the estate, while a person making a claim within the probate process (i.e., claiming under the will or attempting to collect a debt from the estate) is not deemed unsuitable. See In re Estate of Foster, 3 S.W.3d 49, 55 (Tex.App.-Amarillo 1999, pet. denied); Olguin, 931 S.W.2d at 610. The Dean Court reviewed the following cases that guide the courts in making that determination:

An administrator was disqualified as "unsuitable" when the bank in which he owned stock claimed certain of the estate's assets as its own property. Haynes v. Clanton, 257 S.W.2d 789, 792 (Tex.Civ.App.-El Paso 1953, writ dism'd by agr.). An individual was disqualified from serving as administrator of the estates of both a husband and his wife wherein each estate had adverse claims to the same insurance proceeds. Hitt v. Dumitrov, 598 S.W.2d 355, 356 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ). A surviving spouse was found unsuitable because she claimed property of the husband's separate estate as community property. Ayala v. Martinez, 883 S.W.2d 270 [, 272] (Tex.App.-Corpus Christi 1994, writ denied). A finding by the trial court that a surviving wife was unsuitable as the representative of her husband's estate was affirmed by this court where her appointment "would be inimical to the interests of the Estate." Inimical was defined as adverse, antagonistic, and hostile. Formby v. Bradley, 695 S.W.2d 782, 785 (Tex.App.-Tyler 1985, writ ref'd n.r.e.). Family discord has also been grounds for disqualifying an applicant. Spies, 928 S.W.2d at 319. As the court stated in Hitt,"each estate should have a representative that will assume the role of an advocate to achieve the best possible advantage for the estate." Hitt, 598 S.W.2d at 356. If one has personal interests that are so adverse to those of the estate or the beneficiaries thereof that both cannot be fairly represented by the same person, then that person is not a proper person to administer the estate. Bays [v. Jordan], 622 S.W.2d [148,] 149 [(Tex.App.-Fort Worth 1981, no writ)]; citing 18 A.L.R.2d 635 (1951).

Dean, 970 S.W.2d at 633-34. In Dean, as executrix the daughter would have to litigate against her mother, brother, and sisters; would have to select marital deduction assets to her own detriment or to the detriment of the estate; and would have to accuse her own brother, the former executor, of possible wrongdoing. See id. at 634. The court, thus, concluded the daughter was not suitable to serve as the executrix of the estate. See id.

In In re Estate of Vigen, this Court upheld a finding of unsuitability and disqualification of a named executor where evidence established a conflict of interest between the executor and the estate based on the executor's claim against the estate for a $12,000 check. In re Estate of Vigen, 970 S.W.2d at 600-02. The circumstances surrounding the drafting of the check were open to question, and the claim was being pursued in separate litigation. Id.; cf. Boyles, 309 S.W.2d at 54 (good-faith creditor of estate not necessarily unsuitable to serve as administrator but may be found unsuitable...