In re Estate of Whittington

• Decision Date: 27 June 2013
• Docket Number: No. 11–11–00178–CV.,11–11–00178–CV.
• Parties: In the Matter of the ESTATE OF James Bailey WHITTINGTON, Deceased.
• Court: Texas Court of Appeals

409 S.W.3d 666

In the Matter of the ESTATE OF James Bailey WHITTINGTON, Deceased.

No. 11–11–00178–CV.

Court of Appeals of Texas, Eastland.

June 27, 2013.

Michael L. Smith, Stephen E. Haynes, Haynes Law Firm, P.C., Brownwood, for Appellant.

M. Keith Branyon, Colin L. Murchison, Jackson Walker, L.L.P., Fort Worth, for Appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and WILLSON, J.

OPINION

TERRY McCALL, Justice.

The principal issue in this case is whether an independent executor who has been discharged by a court under Section 149E of the Texas Probate Code¹ is the proper party to a will contest filed subsequent to his discharge. The trial court granted the former independent executor's motion to be dismissed as a party because he had been judicially discharged as independent executor and the estate had been closed under Section 149E. ² We affirm in part and reverse and render in part.

Background Facts

James Bailey Whittington executed a will on February 11, 2005, and died on October 3, 2008. The will named Appellee, Lonnie Jones, as independent executor and Nora Ann Carpenter as the sole beneficiary. On November 7, 2008, the probate court entered an order admitting the will to probate; the court also issued letters testamentary to Appellee that day.

Section 149E(a), entitled “Judicial Discharge of Independent Executor,” provides that, “[a]fter an estate has been administered and if there is no further need for an independent administration of the estate,” the independent executor may file an action for declaratory judgment seeking a discharge. On March 29, 2010, Appellee filed an application for judicial discharge pursuant to Section 149E. As required by Section 149E(b), Appellee gave notice to Carpenter, the sole beneficiary under the will, and she executed a waiver of citation and consent to judicial discharge. On May 10, 2010, the probate court entered its “Order Granting Final Distribution of the Estate and Discharge of Executor” that provided as follows:

It is THEREFORE, ORDERED, ADJUDGED AND DECREED that the Executor shall deliver all of the property of the Estate remaining on hand to the persons entitled to ... receive the same and that this Estate shall be closed.

It is FURTHER ORDERED that Executor has fulfilled all duties required of him under the Texas Probate Code and that the Executor shall be discharged from any liability involving matters relating to past administration of the Estate that have been fully and fairly disclosed and any further responsibilities to this Court and the beneficiary of the Estate.

On November 8, 2010, Appellant, Paul Whittington, filed an application to contest the will that had been admitted to probate and a motion to transfer the case to the district court. Appellant alleged that he was the son and only child of the decedent; that his mother and the decedent were married in 1955 and divorced in 1983; that the decedent was married one other time, which also ended in divorce; that the decedent lacked testamentary capacity when he executed the probated will; and that Carpenter, as the decedent's caregiver, procured the will through undue influence. Under Section 93 of the Texas Probate Code, the two-year statute of limitations for his will contest would have expired on November 7, 2010. Prob.§ 93 (West 2003). Because that day was a Sunday, the limitation period was extended until Monday, November 8. SeeTex. Civ. Prac. & Rem.Code Ann. § 16.072 (West 2008).

After posting a public notice of his will contest, Appellant served a personal citation of the application on Appellee and on Carpenter. The officer's return reflects that the citation was served on Carpenter on November 9, 2010, and on Appellee on November 22, 2010. Carpenter filed her answer to the will contest on December 10, 2010.

Appellant's initial application named Appellee individually; however, in his amended application to set aside the will filed on March 1, 2011, Appellant stated that “Lonnie Jones was the independent executor of the will being contested and is named as a party herein in his capacity as independent executor only.” Between the time that Appellant filed his original contest in 2010 and his amended application in 2011, Appellee filed a motion to dismiss on the ground that he was not a proper party because he had been discharged as independent executor by the court under Section 149E. Appellee concurrently filed a motion for sanctions under Chapters 9 and 10 of the Texas Civil Practice and Remedies Code, claiming that the erroneous naming of him as a party was groundless and frivolous.

Prior to the hearing on Appellee's motions to dismiss and for sanctions, the probate court transferred the case to the district court by agreement of Appellant, Appellee, and Carpenter. On June 9, 2011, the trial court entered an order granting Appellee's motions, dismissing Appellee as a party to the will contest because he had been judicially discharged under Section 149E, and imposing sanctions against Appellant in the amount of $3,000 on the ground that naming the discharged independent executor as a party was not supported by any existing law and was a frivolous argument for the establishment of a new law. Appellant timely filed his notice of appeal on July 6, 2011.

Subsequent to the filing of Appellant's brief in this court, the trial court issued a letter dated September 12, 2011, explaining that it had reconsidered the ruling on sanctions. On September 15, 2011, the trial court entered an order modifying its earlier judgment and denying the sanctions.

Issues

In his first issue, Appellant argues that Appellee was a proper party to the will contest and that the trial court erred in dismissing Appellant from the case. In his second issue, Appellant contends that the trial court abused its discretion in imposing sanctions because sanctions were not justified in this case. In his third issue, Appellant asserts that the trial court's order should be reversed because Appellee's motion to dismiss was procedurally defective.

Analysis

Appellant begins with a broad statement that many Texas courts have found that an executor is a proper party to a will contest, citing In re Estate of Head, 165 S.W.3d 897, 902 (Tex.App.-Texarkana 2005, no pet.); Wojcik v. Wesolick, 97 S.W.3d 335, 340 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Cheesborough v. Corbett, 155 S.W.2d 942, 945 (Tex.Civ.App.-Galveston 1941, writ ref'd w.o.m.); Bevill v. Rosenfield, 113 S.W.2d 340, 342 (Tex.Civ.App.-Dallas 1938, writ dism'd); and Kramer v. Sommers, 93 S.W.2d 460, 465 (Tex.Civ.App.-Fort Worth 1936, writ dism'd), as being in agreement with Mason v. Mason, 366 S.W.2d 552 (Tex.1963).

In Mason, the husband's will devised a life estate in a certain tract to his son by a former marriage and devised a life estate in all the remaining property to his current wife. 366 S.W.2d at 553. The will named the current wife independent executrix and trustee with full power to manage and control any and all of the estate during her lifetime. The son challenged the validity of the will on the ground of undue influence. Based on a jury verdict, the trial court rendered judgment setting aside the order admitting the will to probate. The court of appeals reversed and remanded on the ground that minor beneficiaries (the son's children and other grandchildren) had not been made parties. Id. The Texas Supreme Court held that, under the doctrine of virtual representation, the wife as acting trustee with the power to manage the estate and to receive all of the net income during her lifetime was empowered to defend the trust and represent the minor beneficiaries. Id. at 554. The court pointed out that the minor beneficiaries were proper, but not necessary and indispensable, parties in the will contest because their interests were not in conflict with the wife's. Id.

Appellee responds that, in all of the cases cited by Appellant, there was an independent executor who was actively administering the estate and, therefore, serving as a virtual representative of the beneficiaries under the facts of each case. Appellee candidly states that he has found no case law addressing the issue of whether a former independent executor who has been judicially discharged under Section 149E is a proper party to a subsequently filed will contest. This court likewise has failed to find a case addressing the issue.

Appellant argues that Appellee should have filed a motion for summary judgment, not a motion to dismiss Appellee as a party to Appellant's will contest. We disagree. Appellee's motion to dismiss raised the procedural issue of whether Appellee or the beneficiary was the proper party to the will contest; the trial court properly did not dismiss Appellant's will contest. Appellee's motion did not have any bearing on the merits of Appellant's contest of the probated will; the cause of action was not dismissed. The decision to dismiss a cause of action against a party is a matter ordinarily within the sound discretion of the trial court. Trevino v. Houston Orthopedic Ctr., 831 S.W.2d 341, 343 (Tex.App.-Houston [14th Dist.] 1992, writ denied). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles or, in other words, acted in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985). Here, the guiding rule is Section 149E, and the question is whether the trial court properly construed that statute to mean that the independent administration is closed when the executor receives a judicial discharge. We find that the trial court acted properly with reference to Section 149E.

Statutory construction is a legal question we review de novo. When construing a statute, the court's objective is to ascertain and give effect to the legislature's intent as expressed by the language of the statute. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008); ...