In re in the Estate of Cole

• Court: Texas Court of Appeals
• Writing for the Court: LEE GABRIEL JUSTICE
• Decision Date: 29 January 2015
• Docket Number: NO. 02-13-00417-CV,02-13-00417-CV
• Citation: In re Estate of Cole, NO. 02-13-00417-CV (Tex. App. Jan 29, 2015)
• Parties: IN THE ESTATE OF ROBERT R. COLE, DECEASED

IN THE ESTATE OF ROBERT R. COLE, DECEASED

NO. 02-13-00417-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

January 29, 2015

FROM THE PROBATE COURT OF DENTON COUNTY TRIAL COURT NO. PR-2009-00804

MEMORANDUM OPINION¹

Appellant Judith Cole (Judith) appeals from the trial court's judgment entering a take-nothing judgment on her claims involving her deceased husband's will. We reverse and render part of the trial court's judgment and affirm the remainder of the trial court's judgment.

I. BACKGROUND

A. FACTS

Robert R. Cole Sr. (Robert Sr.) died on September 16, 2009, leaving a will dividing his estate between three beneficiaries: his wife Judith, his daughter Karen Cole (Karen), and his son Robert R. Cole Jr. (Robert Jr.). Robert Sr. specifically provided that it was his "intention in this Will to dispose of all my property, real, personal, and mixed, including my one-half interest in the community property of myself and my wife [Judith]." To Judith, Robert Sr. devised "all my tangible personal property located upon my homestead^[2] or within my home, including all vehicles, animals and equipment, save and except the personal property given to others either during my lifetime or hereinafter in this Will." Robert Sr. left his homestead to Karen "subject to the homestead rights of [Judith]." To Robert Jr., Robert Sr. left (1) "all funds, securities, and investments remaining in the account maintained in my name only, after payment of my just debts and the expenses associated with the probate of my estate, such property being my separate property" (the investment account) and (2) "all . . . firearms and hunting equipment."

Other than these specific bequests, Robert Sr. included a residuary bequest: "I give the rest and residue of my estate to Karen and Robert [Jr.], share and share alike." Robert Sr. appointed Karen as executor and instructedher to pay "all of my just debts, including the expenses of my last illness and funeral and expenses related to the probate of my estate" from "the separate property account [i.e., the investment account] maintained in my name only." Robert Sr. also included a forfeiture clause,³ which provided that if the will was contested by any beneficiary "in any manner, including but not limited to the characterization of my property as my separate property," the bequest under the will to that beneficiary would be revoked. See generally Tex. Est. Code Ann. § 254.005 (West 2014) (recognizing forfeiture clauses).

B. PROCEDURE

a. Trial

After the will was admitted to probate, Judith filed an application for surviving-spouse benefits, seeking a family allowance, requesting confirmation of her homestead rights, and asking to have her exempt property set aside. See id. §§ 102.003, 353.051, 353.053, 353.101 (West 2014). She further alleged that the investment account bequeathed to Robert Jr. as Robert Sr.'s separate property contained community property; thus, she "claim[ed] a community property interest in such account not to exceed one-half of the total assets of such account." See id. § 55.001 (West 2014). Finally, Judith sought reimbursement for her portion of community funds spent on capital improvementsmade to the homestead, which enhanced the value of the homestead. See Tex. Fam. Code Ann. § 3.402(a)(8) (West Supp. 2014).

Karen filed an objection to Judith's application and a counterclaim requesting a declaratory judgment for "a determination of whether or not the Last Will and Testament of [Robert Sr.] puts [Judith] to an election." In her counterclaim, Karen asserted that Robert Sr.'s will put Judith to an election: "(1) taking under the terms of the Will, or (2) pursuing her interest in the [investment] account, if any, under laws concerning community property." Karen alleged that Judith had destroyed or concealed the binders that contained the financial statements regarding the investment account. Karen further argued that by contesting Robert Sr.'s will, Judith automatically divested herself of any devise under the forfeiture clause.

In response, Judith raised the affirmative defense that "any proceeding taken was done with just cause and the action maintained in good faith"; thus, she did not forfeit her right to take under the will by virtue of the forfeiture clause. See Tex. Est. Code Ann. § 254.005(1)-(2).⁴ Judith additionally sought to recoverdamages from Karen for conversion, unjust enrichment, money had and received, and common-law debt.

On December 21, 2010, the probate court heard some of the disputed issues and determined that (1) Judith was entitled to homestead rights in Robert Sr.'s homestead and mineral-royalty income arising from the homestead; (2) Judith was entitled to repayment for funeral expenses and a portion of Robert Sr.'s debts, which Judith had paid; and (3) Judith was entitled to a $36,000 family allowance. See Tex. Const. art. XVI, § 52; Tex. Est. Code Ann. §§ 102.002-.003, 353.101, 355.102, 355.110, 355.112 (West 2014). The trial court severed these issues from the remainder of the suit "so that the effect of this Judgment is to be a Final Judgment for all purposes." See Tex. R. Civ. P. 41, 174(b); Denton Cnty. (Tex.) Probate Ct. Loc. R. 1.6. Neither Judith nor Karen appealed from this judgment.

The issues remaining after the December 21, 2010 judgment later were tried to a jury. See Tex. Est. Code Ann. § 55.002 (West 2014). During the trial and before testimony was concluded, the trial court determined as a matter of law that the will put Judith to an election but that whether Judith made such an election was a fact question for the jury. Judith objected to the trial court's determination that the will put Judith to an election.

After a seven-day trial, the jury made several findings adverse to Judith:

• Judith knowingly elected to take under the will.

• Judith's expenditures on the homestead were not capital improvements, negating her right to a reimbursement.⁵

• Judith did not bring or maintain her suit seeking a community-property interest in the investment account in good faith or for just cause.

• Several of the securities included in the investment account were Robert Sr.'s separate property.

Judith filed a motion to set aside the jury's verdict and a motion for mistrial, both seeking that the jury's answers be set aside and a new trial ordered. See Tex. R. Civ. P. 301, 320. The trial court entered final judgment on August 30, 2013, including its prior legal conclusion that the will put Judith to an election. The trial court then stated that whether Judith had made such an election was a question of fact, subject to the jury's finding that she elected to take under the will. The trial court essentially entered a take-nothing judgment on Judith's claims based on the jury's findings⁶ and awarded Karen attorney's fees. The trial court further stated that "[a]ll relief not expressly granted herein is denied." Judith's post-verdict, prejudgment motions were overruled by operation of law. See Tex. R. Civ. P. 329b(c).

b. Appeal

Judith appeals and argues that the trial court erred by concluding that the will contained an election and that the jury's finding that Judith made an election was supported by legally insufficient evidence and should not have been submitted to the jury. She also argues that the evidence was insufficient to support the jury's finding that there were no capital improvements to the homestead. She further contends that the jury charge erroneously defined good faith and just cause. Finally, Judith argues that the jury's finding that she did not act in good faith or with just cause in bringing and maintaining her suit seeking an interest in the investment account conflicted with its finding that not all the securities in the investment account were Robert Sr.'s separate property. Judith argues a remand of all issues is the appropriate disposition of this appeal.

In bringing her appeal, Judith requested and designated a partial reporter's record; thus, we have been provided only with the testimonies of Judith, a realtor who valued the homestead, and a real-estate appraiser who also valued the homestead. See Tex. R. App. P. 34.6(b)(1), (c). In making her request for a partial record, Judith specified the issues she would be raising on appeal, which included the issues actually raised. See Tex. R. App. P. 34.6(c)(1). After Judith perfected her appeal, Karen died and Robert Jr. succeeded her as the executor of Robert Sr.'s estate. Neither Karen nor Robert Jr. designated additional portions of testimony to be included in the reporter's record. See Tex. R. App. P. 34.6(c)(2).

II. ELECTION

In her first two issues, Judith asserts that Robert Sr.'s will did not "put her to an election as a matter of law"; thus, the election question should not have been submitted to the jury and the jury's finding that Judith knowingly elected to take under the will was supported by legally insufficient evidence.

A. EXISTENCE OF ELECTION IS QUESTION OF LAW

Judith seems to argue that the trial court incorrectly concluded that the presence of an election in the will was a question of law for the trial court. With an election, a testator may force his surviving spouse to elect either to assert her one-half interest in the community estate and forfeit any gifts that may be made to her under the will or to give up her one-half interest in the community estate and instead receive the gifts under the will. See 1 Ronald R. Cresswell et al., Texas Practice Guide: Wills, Trusts & Estate Planning § 4:351 (2014). Whether such an election is present in a will is a question of law. Wright v. Wright, 274 S.W.2d 670, 674 (Tex. 1955), overruled in part on other grounds by Tobin v. Garcia, 316 S.W.2d 396, 400 (Tex. 1958); see also In re Estate of Slaughter, 305 S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.) ("If the court can give a certain or definite legal meaning or interpretation to the words used, the will is unambiguous, and the court should construe it as a matter of law."); c...