                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-283-CV


ESTATE OF WANDA MEACHAM RHEA,
DECEASED


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              FROM THE COUNTY COURT OF YOUNG COUNTY

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                                  OPINION

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      Appellants Charlotte Bonner Barrett and Trenton Bonner, independent co-

executors of the estate of Wanda Meacham Rhea, deceased, appeal from a trial

court order aw arding Appellee Charles Rhea a family allowance of $20,000;

$5,000 in lieu of exempt property; and the use of Wanda’s wedding ring during

his lifetime. We modify the trial court’s order and affirm the order as modified.

                                  Background
      Charles, who is eighty-seven years old, and Wanda married late in life and

had been married for just under nine years when Wanda died in June 2005 at

the age of seventy-nine. Wanda left a will bequeathing $10,000 cash to each

of her grandchildren and step-grandchildren, all of her jewelry and personal

effects to Charlotte, and the remainder of her estate to Charlotte and Trenton.

      In October 2005, Charlotte and Trenton notified Charles of their intent to

remove Wanda’s personal property from the marital home. Charles labeled

some of the possessions in the home to mark his own separate property, then

left the house from November 11 through November 14. Charlotte and Trenton

spent those four days moving possessions out of the home; they estimated the

value of the furniture and other possessions removed from the home at

$50,000.    Charles testified that they took towels, sheets, pillow cases,

blankets, dishes, cooking utensils, pots and pans, and even toilet paper, half

boxes of Kleenex, used bars of soap, and all but one or two books. They left

him one chair, a television, a couple of table lamps, one set of glasses, one set

of china, and some eating utensils. Charles testified that he was required to

purchase a refrigerator, a bed, a table and chairs, a washer and dryer, a

microwave oven, a vacuum cleaner, glasses, dishes, and pans “to maintain

. . . some semblance of the same standard of living” to which he and Wanda




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had grown accustomed during their marriage. He said he spent $3,700 “to get

back [to] where [he] could just exist there.”

      In December 2006, shortly after Charlotte and Trenton filed an inventory,

appraisement, and list of claims, Charles filed (1) an application for a family

allowance      of   $30,000   and   (2)   an   application   to   set   aside   exempt

property—including many of the items removed by Charlotte and Trenton—or,

alternatively, for an allowance of $5,000 in lieu of the removed personal

property. The trial court awarded Charles a $20,000 family allowance; $5,000

in lieu of exempt property; and use and possession of Wanda’s wedding ring

during his lifetime “as part of the exempt property.” Charlotte and Trenton filed

this appeal.

                               Standard of Review

      In a trial to the court where no findings of fact or conclusions of law are

filed, the trial court’s judgment implies all findings of fact necessary to support

it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). Where a

reporter’s record is filed, however, these implied findings are not conclusive,

and an appellant may challenge them by raising both legal and factual

sufficiency of the evidence issues.

      An argument that the evidence establishes conclusively the opposite of

a fact essential to the trial court’s judgment is a challenge to the legal

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sufficiency of the evidence.    Uniroyal Goodrich Tire Co. v. Martinez, 977

S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). When a

party without the burden of proof at trial challenges the legal sufficiency of the

evidence, we consider all of the evidence in the light most favorable to the

prevailing party, indulging every reasonable inference in that party’s favor.

Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.

1998). If there is any evidence of probative force to support the finding, i.e.,

more than a mere scintilla, we will overrule the issue. Formosa Plastics Corp.

USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)

                               Family Allowance

      In their first issue, Charlotte and Trenton argue that the trial court erred

by granting Charles a $20,000 family allowance because Charles answered

interrogatories showing that he had monthly income of $2,706 and monthly

expenses of $1,570, thereby conclusively proving that he owned separate

property adequate to provide for his maintenance.

      Before a trial court approves an estate’s inventory, appraisement, and list

of claims, a surviving spouse may apply to the court to have the court fix a

family allowance by filing an application and a verified affidavit describing the

amount necessary for the maintenance of the surviving spouse for one year

after the date of the death of the decedent and describing the spouse’s

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separate property. T EX. P ROB. C ODE A NN. § 286(b) (Vernon 2003). The trial

court must fix a family allowance for the support of the surviving spouse in an

amount sufficient for the spouse’s maintenance for one year from the time of

the testator’s death with regard to the facts or circumstances then existing and

those anticipated to exist during the first year after such death. Id. §§ 286(b),

287 (Vernon 2003). But when the surviving spouse has separate property

adequate to the survivor’s maintenance, the trial court may not award an

allowance. Id. § 288 (Vernon 2003). The applicant bears the burden of proof

by a preponderance of the evidence at any hearing on the application. Id.

§ 286.         When determining whether a surviving spouse is entitled to an

allowance and, if so, in what amount, the trial court must consider the whole

condition of the estate during the first year after the spouse’s death, the

necessities of the surviving spouse, and the circumstances to which he or she

has been accustomed. Churchhill v. Churchhill, 780 S.W.2d 913, 916 (Tex.

App.—Fort Worth 1989, no writ) (citing Pace v. Eoff, 48 S.W.2d 956, 960

(Tex. Comm’n App. 1932, judgment adopted)).

       The inventory, appraisement, and list of claims filed by Charlotte and

Trenton listed assets in Wanda’s estate with a total value of $847,601 and no

liabilities.    In answers to interrogatories served by Charlotte and Trenton,

Charles itemized his income and expenses, and his income of $2,706 exceeded

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his expenses of $1,570 by $1,136 per month.         But it is undisputed that

Charlotte and Trenton removed $50,000 worth of Wanda’s possessions from

the marital home, including necessities such as the beds, bedding, the

refrigerator, dishes, cooking utensils, and most of the furniture—all of which

figure into the calculus of the circumstances to which Charles was accustomed

during Wanda’s life.   At the time of trial, Charles had spent $3,700 on

necessities to “get back to where [he] could just exist” in the marital home.

Moreover, he testified that before her death, Wanda contributed $2,000 per

month to their joint checking account. To the extent the $50,000 of property

removed from the marital home reflects the circumstances to which Charles

was accustomed beyond mere necessities, his $1,136 per month—$13,632 per

year—surplus income was inadequate to return him to those circumstances in

the year following Wanda’s death. See Churchill, 780 S.W.2d at 916 (holding

evidence legally and factually sufficient to support allowance of $30,000 when

widow had separate annual income of $34,161 per year but was accustomed

to spending $18,000–24,000 per year on golf tournaments).

      Charlotte and Trenton rely on Noble v. Noble, 636 S.W.2d 551, 552

(Tex. Civ. App.—San Antonio 1982, no writ) and McCanless v. Devenport, 40

S.W.2d 903, 906 (Tex. Civ. App.—Dallas 1931, no writ) to support their

argument that Charles’s income is conclusively adequate to provide for his

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maintenance. Both cases are distinguishable. In Noble, the trial court found

that the decedent’s widow required $11,428 for maintenance in the year

following her husband’s death and had income from Social Security, a pension,

and interest on savings of $6,840 per year, and the court awarded her an

allowance of $4,588. 636 S.W.2d at 552. The court of appeals reversed the

award, holding that the widow was not entitled to an allowance because—in

addition to her income—she owned extensive separate property worth at least

$40,000, including $35,000 in a savings account, $5,000 in treasury bills, and

twenty-nine acres of land. Id. By contrast, in this case, there is no evidence

that Charles owned any separate property apart from the few furnishings

Charlotte left in the marital residence, some tool boxes, and the assets—Social

Security, two pensions, and an annuity—that generated his monthly income.

In McCanless, the trial court awarded a decedent’s widow an allowance of

$250. 40 S.W.2d at 906. The court of appeals reversed the award because

the widow testified that she had collected a $989 life insurance policy upon the

decedent’s death, received $8.00 per month in income from rental property,

and had not had to borrow money in the year following her husband’s death.

Id.   Thus, the widow’s testimony showed that she possessed funds far in

excess of what the trial court deemed necessary for her maintenance. See id.

But in the case before us, the trial court found that Charles required $20,000

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for his maintenance, far more than his income after deducting expenses for

necessities. Moreover, McCanless preceded Pace and does not discuss the rule

articulated in the latter case that the trial court must consider not only the

survivor’s necessities but the conditions of life to which the survivor was

accustomed before the decedent’s death. See id.; Pace, 48 S.W.2d at 960.

      Considering the evidence in the light most favorable to the trial court’s

allowance order, we hold that Charles’s monthly surplus income was not—as

Charlotte and Trenton contend—conclusive proof of means adequate to provide

for his maintenance in the year following Wanda’s death.        Therefore, we

overrule Charlotte’s and Trenton’s first issue.

        Allowance in Lieu of Exempt Property and the Wedding Ring

      In their second issue, Charlotte and Trenton argue that the trial court

erred by awarding Charles both a $5,000 allowance in lieu of exempt personal

property and use and possession of Wanda’s wedding ring. They contend that

a court may award a cash allowance in lieu of exempt property or set aside the

property for the surviving spouse, but it may not do both.

      Before the approval of the inventory, appraisement, and list of claims, a

surviving spouse may apply to the court to have exempt property set aside.

T EX. P ROB . C ODE A NN. § 271(b) (Vernon Supp. 2007). The trial court must




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award a monetary allowance for exempt property not among the decedent’s

effects:

      In case there should not be among the effects of the deceased all
      or any of the specific articles exempted from execution . . . , the
      court shall make a reasonable allowance in lieu thereof. . . . The
      allowance in lieu of a homestead shall in no case exceed $15,000
      and the allowance for other exempted property shall in no case
      exceed $5,000 . . . .

Id. § 273 (Vernon 2003).

      Charlotte and Trenton argue that setting aside exempt property and a

cash allowance in lieu thereof are mutually exclusive, alternative remedies; that

is, they argue that if any exempt property is on hand, the trial court may not

award an allowance in lieu of any exempt property that is not on hand. This

interpretation is contrary to the plain meaning of section 273.      Under that

section, if any of the exempt property is not among the decedent’s effects, the

trial court must “make a reasonable allowance in lieu thereof.” Id. In other

words, the trial court must make an allowance for those exempt items that it

cannot set aside because they are not on hand. If some exempt items are on

hand, it must set those aside for the surviving spouse and award an allowance

in lieu of those exempt items that are not on hand.

      Charlotte and Trenton rely on Barnett v. Barnett for their argument that

a trial court may not set aside exempt property and award an allowance in lieu


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of exempt property that cannot be set aside. 985 S.W.2d 520, 532 (Tex.

App.—Houston [1st Dist.] 1998), rev’d on other grounds, 67 S.W.3d 107 (Tex.

2001). The Barnett court stated broadly that “[t]he allowance is payable only

if there is no homestead or other exempt property among the effects of the

deceased.”   Id. (citing Miller v. Miller, 230 S.W.2d 237, 241 (Tex. Civ.

App.—Beaumont 1950), rev'd on other grounds, 149 Tex. 543, 235 S.W.2d

624 (1951)). Barnett and Miller both involved homesteads and allowances in

lieu of homesteads, not personal property. Id.; Miller, 230 S.W.2d at 241. The

Barnett court held that a surviving spouse was not entitled to an allowance in

lieu of the homestead because there was a homestead in the decedent’s estate.

985 S.W.2d at 532.      Likewise, in Miller, there was a homestead in the

decedent’s estate, and he and his widow were living there before he died; thus,

his widow was not entitled to an allowance in lieu of the homestead. 230

S.W.2d at 241. Thus, Barnett and Miller stand for the proposition that under

section 273, a surviving spouse is not entitled to an allowance in lieu of a

homestead if there is a homestead in the estate. Neither case speaks to the

kind of property involved in this case—exempt personal property—and neither

stands for the proposition that the presence of any exempt personal property

in an estate precludes an allowance for exempt personal property that is not on

hand. To the extent that the broad statement in Barnett suggests otherwise,

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it is dictum and contrary to the express language of section 273, and we

decline to apply it to the facts of this case.

         Because section 273 authorized the trial court to set aside the exempt

personal property that was on hand—the ring—and award Charles an allowance

in lieu of the exempt personal property that was not on hand, we hold that the

trial court did not err by so doing. We overrule Charlotte and Trenton’s second

issue.

                        Life Estate in Wanda’s Wedding Ring

         In their third issue, Charlotte and Trenton argue that the trial court erred

by granting Charles a life estate in Wanda’s wedding ring.           The trial court

ordered that “Charles Rhea shall have use and possession of the wedding ring

worn by the Decedent during his lifetime as part of the exempt property. The

Court makes no determination of ownership or of the character of the

ownership of the ring.” Charlotte and Trenton contend that the probate code

authorizes a survivor’s use and possession of exempt personal property only

until final settlement of the estate.

         Probate code section 278 provides as follows:

         If, upon a final settlement of the estate, it shall appear that the
         same is solvent, the exempted property, except the homestead or
         any allowance in lieu thereof, shall be subject to partition and
         distribution among the heirs and distributees of such estate in like
         manner as the other property of the estate.

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T EX. P ROB. C ODE A NN. § 278 (Vernon 2003). Thus, a surviving spouse can

retain possession of tangible exempt property under the “use and benefit”

provision of section 271, but when the administration terminates, the

decedent’s interest in these items must pass to the decedent’s heirs or

devisees. Id.; Bolton v. Bolton, 977 S.W.2d 157, 159 (Tex. App.—Tyler 1998,

no pet.) (holding that trial court erred by granting surviving spouse fee simple

title to estate’s exempt property).

      The trial court’s order is captioned in part “Order . . . Setting Aside

Exempt Property . . . for Use and Benefit of Surviving Spouse.”          The only

property set aside for Charles’s use and benefit is the ring. Thus, the trial court

clearly set aside the ring under probate code section 271, but section 278

precludes the grant of a life estate in exempt property set aside under section

271. See T EX. P ROB. C ODE A NN. §§ 271, 278. Thus, the trial court erred by

granting Charles a life estate in the ring under section 271.

      Charles argues that the ring is presumptively community property because

it was acquired during the marriage and that he is therefore entitled to a life

estate in the ring. In fact, Charles testified that he bought the ring before the

wedding and gave it to Wanda on their wedding day. He further testified that

they purchased a diamond for the ring several months later, with each of them

contributing half of the diamond’s cost. But the trial court specifically reserved

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the question of the ring’s ownership; therefore, the issue of whether Charles

is entitled to a life estate in the ring because it is community property is not ripe

for our review.

      We sustain Charlotte and Trenton’s third issue.

                                    Conclusion

      Having overruled Charlotte and Trenton’s first and second issues and

sustained their third issue, we strike the words “during his lifetime” from the

part of the trial court’s order granting Charles the use and possession of

Wanda’s wedding ring, and we affirm the order as modified.




                                              ANNE GARDNER
                                              JUSTICE

PANEL A:     DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: June 5, 2008




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