                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-005-CV


ESTATE OF RICHARD GLENN WOLFE, SR., DECEASED

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           FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

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                                  OPINION

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                                I. Introduction

      In three issues, Appellant Morgan W olfe (“Morgan”) asserts that the

probate court erred, when granting a request for a family allowance, by failing

to consider and deduct as separate property (a) the life insurance proceeds paid

to Appellee Sondra Gay Wolfe (“Sondra”) during the year following the death

of Richard Glenn Wolfe, Sr. (“Richard”); (b) the individual retirement account

benefits received by Sondra during the year following Richard’s death; and (c)
the income earned and to be earned by Sondra during the year following

Richard’s death. We affirm.

                      II. Factual and Procedural History

      Richard married Sondra on January 1, 2000, and died six and one-half

years later on July 8, 2006. During their marriage, Richard maintained a life

insurance policy that named Sondra as the beneficiary.      Richard’s will was

admitted to probate in Tarrant County Probate Court Number 2, wherein Lionel

Robert Lane (“Lane”) was appointed and qualified as the Independent Executor

of Richard’s estate. On April 23, 2007, Sondra filed an “Application for Family

Allowance Before Approval of Inventory” asserting that her expenses for the

year following Richard’s death would be at most $132,444. On May 1, 2007,

Lane filed an “Objection to [Sondra’s Application] for Family Allowance Before

Approval of Inventory,” and two days later Morgan, son of Richard and a

beneficiary under Richard’s will, also filed an “Objection to Application for

Family Allowance.”    Following an evidentiary hearing and briefing by the

parties, the probate court approved Sondra’s application and ordered that a

family allowance of $126,840 be paid to her.

      Sondra asserted in connection with her request for a family allowance

that she had “no separate property or property in her own right adequate for her

maintenance.” During the year following Richard’s death, she received the life

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insurance proceeds totaling $291,250, was the beneficiary of Richard’s IRA

accounts totaling $120,000, and had income of $85,000.

      This appeal by Morgan resulted.

                            III. Standard of Review

      We review the actions of the probate court in granting the family

allowance under the abuse of discretion standard. Gonzalez v. Guarjardo de

Gonzalez, 541 S.W.2d 865, 868 (Tex. Civ. App.—Waco 1976, no writ); San

Angelo Nat’l Bank v. Wright, 66 S.W.2d 804, 805 (Tex. Civ. App.—Austin

1933, writ ref’d).

      To determine whether a court abused its discretion, we must decide

whether the court acted without reference to any guiding rules or principles; in

other words, we must decide whether the act was arbitrary or unreasonable.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985),

cert. denied, 476 U.S. 1159 (1986). Merely because a court may decide a

matter within its discretion in a different manner than an appellate court would

in a similar circumstance does not demonstrate that an abuse of discretion has

occurred. Id.

      An abuse of discretion does not occur where the court bases its decisions

on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig.

proceeding). Furthermore, an abuse of discretion does not occur as long as

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some evidence of substantive and probative character exists to support the trial

court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

                             IV. The Probate Code

      The pertinent statutory provisions of the Texas Probate Code read in part

as follows:

      § 286. Family Allowance to Surviving Spouses and Minors
      [A] surviving spouse . . . may apply to the court to have the court
      fix the family allowance. . . . The applicant bears the burden of
      proof by a preponderance of the evidence . . . .

      § 287. Amount of Family Allowance
      Such allowance shall be of an amount sufficient for the
      maintenance of such surviving spouse . . . for one year from the
      time of the death of the testator . . . . The allowance shall be fixed
      with regard to the facts or circumstances then existing and those
      anticipated to exist during the first year after such death.

      § 288. When Family Allowance Not Made
      No such allowance shall be made for the surviving spouse when
      the survivor has separate property adequate to the survivor’s
      maintenance[.]

Tex. Prob. Code Ann. §§ 286(b), 287, 288 (Vernon 2003).

                                   V. Issues

      A. Life Insurance Proceeds

      Morgan first asserts that the trial court erred by awarding a family

allowance because the life insurance proceeds received by Sondra exceeded the

requested family allowance.


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      The basis of Morgan’s argument is that the proceeds of the life insurance

policy, which was community property while Richard was alive, became

Sondra’s separate property on the death of her husband. See Brown v. Lee,

371 S.W.2d 694, 695–96 (Tex. 1963); Dent v. Dent, 689 S.W.2d 521, 522

(Tex. App.—Fort Worth 1985, no writ); Parker Square State Bank v. Huttash,

484 S.W.2d 429, 430 (Tex. App.—Fort Worth 1972, writ ref’d n.r.e.). Upon

Richard’s death, his estate vested “immediately in his heirs at law,” Tex. Prob.

Code Ann. § 37 (Vernon 2003), including Sondra, and further, property

acquired by Sondra through “gift, devise, or descent” is Sondra’s separate

property under the Texas Family Code. See Tex. Fam. Code Ann. § 3.001(2)

(Vernon 2006). Hence, argues Morgan, pursuant to section 288 of the Texas

Probate Code, no family allowance was permitted because her separate

property, the life insurance proceeds, exceeded her Family Allowance request,

and the trial court abused its discretion by making the award.

      However, as pointed out by Sondra, it has been held that “separate

property” for purposes of a family allowance, including that acquired by “gift,

devise, or descent”

      does not mean the surviving wife’s interest in the community
      property of herself and deceased husband, so as to bar her from
      the right to an allowance for the first year’s support of the
      community estate of herself and husband[.]


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Pace v. Eoff, 48 S.W.2d 956, 959 (Tex. Comm’n App. 1932, judgm’t

adopted).

         In other words, life insurance proceeds, as community property of Richard

and Sondra before Richard’s death, are not considered to be the “separate

property” of Sondra following his death in the family allowance calculation.

         Further, in Barnett v. Barnett, Mrs. Barnett received during the first year

following her husband’s death a $426 per month annuity; a tax refund of

$3,851; $41,637.86 from her husband’s savings plan; and worked full-time

earning $10 an hour. 985 S.W.2d 520, 532 (Tex. App.—Houston [1st Dist.]

1998, rev’d in part on other grounds, 67 S.W.3d 107, 108 (Tex. 2001)). The

court found that “none of these funds were the [w]ife’s separate property.” Id.

This determination was affirmed by our Supreme Court. Barnett v. Barnett, 67

S.W .3d 107, 126 (Tex. 2001). This must be read to mean that the funds

Sondra received after her husband’s death were not her “separate property” as

that term is used in connection with a family allowance under the Texas

Probate Code.

         Therefore, following this authority, we cannot say that the trial court

abused its discretion by allowing a family allowance because Sondra received

life insurance proceeds following Richard’s death. We overrule Morgan’s first

issue.

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      B. IRA Benefits and Earned Income

      In his second and third issues, Morgan repeats his argument that he made

in issue one and applies it to the retirement benefits amounting to $121,000

that Sondra received in the year following Richard’s death and to the income

she earned that year amounting to $85,000.

      We will follow the reasoning we applied to Morgan’s first issue and note

that in Cooper v. Pierce, our supreme court specifically found that the fact that

a minor, who is also entitled to a family allowance under the same Texas

Probate Code provisions previously cited and who was a wage earner, “did not

deprive him of the right to demand and take the allowance that the law gave

him out of his deceased father’s estate.” Cooper v. Pierce, 74 Tex. 526, 529,

12 S.W. 211, 212 (1889). We overrule Morgan’s second and third issues.

                                VI. Conclusion

      Having overruled Morgan’s issues, we affirm the trial court’s judgment.




                                           BOB MCCOY
                                           JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DELIVERED: September 18, 2008




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