                                     COURT OF APPEALS
                                  EIGHTH DISTRICT OF TEXAS
                                       EL PASO, TEXAS

                                                   §
                                                                   No. 08-07-00038-CV
 IN THE MATTER OF THE ESTATE OF                    §
 KENNETH ALLEN ROMANCIK,                                              Appeal from the
 DECEASED.                                         §
                                                                     Probate Court #2
                                                   §
                                                                 of El Paso County, Texas
                                                   §
                                                                   (TC# 2005-P00577)
                                                   §


                                            OPINION

        This appeal is from a bench trial admitting the decedent’s will to probate. The decedent’s

wife, the contestant in the trial court, raises two issues for review. First, she challenges the trial

court’s determination that the will satisfied the requirements of Texas Probate Code sec. 59.

Second, she argues the affirmative defense of laches bars the will’s admittance. We affirm.

        The facts of this case are mostly undisputed. The decedent, Kenneth A. Romancik died

on July 18, 2001 in El Paso. He was married to Carol Romancik at the time of his death. He did

not have any children.

        Shortly after her husband’s death, Carol filed a small estate administration. Through the

administration, Carol transferred the title on Kenneth’s vehicle and collected his final paycheck.

At the time of the administration, Carol was not aware that Kenneth had a will.

        Nothing further happened until June 7, 2005, when Genevieve Romancik, Kenneth’s

mother, filed a application to probate the will, the subject of this appeal (“the will”). The will is

four typed pages titled, “LAST WILL AND TESTAMENT OF Kenneth A. Romancik.” It states:
[Page A]

      LAST WILL AND TESTAMENT OF

                     Kenneth A. Romancik

                                                I.

              I, Kenneth A Romancik, residing at El Paso, Texas, being of sound mind
      and in the contemplation of the certainty of death, do hereby declare this
      instrument to be my last will and testament.

                                               II.

             I hereby revoke all previous wills and codicils.

                                               III.

              I direct that the disposition of my remains be as follows:
      I want to have a military funeral in El Paso, Texas.

                                               IV.

             I give all the rest and residue of my estate to the following individuals,
      share and share alike:

      Genevieve Romancik

      If none of my designated beneficiaries survives me, I give all the rest and residue
      of my estate to Carol A. Romancik. If neither [Genevieve Romancik] nor Carol A.
      Romancik, survives me, I give all the rest and residue of my estate to my heirs as
      determined by the laws of the State of Texas, relating to descent and distribution.

                                               V.

             I appoint Genevieve Romancik, to act as the executor of this will, to serve
      without bond. Should Genevieve Romancik be unable or unwilling to serve, then I
      appoint Carol A. Romancik to act as the executor of this will.

             I hereby affix my signature to this will on this the 4 day of October, 1999

[Page B]



                                               -2-
      at Mail Boxes Etc., in the presence of the following witnesses, who witnessed and
      subscribed this will my request, and in my presence.

      ATTESTATION CLAUSE

      On the date above written, Kenneth A. Romancik, well known to us declared to
      us, and in our presence, that this instrument, consisting of 3 pages, is their last will
      and testament, and Kenneth A. Romancik, then signed this instrument in our
      presence, and at Kenneth A. Romancik’s request we now sign this will as
      witnesses and in each other’s presence. Further that Kenneth A. Romancik,
      appeared to us to be of sound mind and lawful age, and under no undue influence.

      Witness:

      [sig] Genevieve Romancik
      Address: 2102 Chris Roark Pl.

      Witness:

      [sig] Corina Eckhart
      Address: 1605 George Dieter El Paso, Tx 79936

      Witness:

      [sig] Ana Smith
      Address: 1605 George Dieter El Paso, Tx 79936

      STATE OF TEXAS
      COUNTY OF United States of America

[Page C]

      REVOCATION OF WILLS- CODICILS

      I Kenneth A. Romancik, herewith revoke all previous wills and codicils.

      Dated: 10-4-99

      [sig] Kenneth A. Romancik

      We, the undersigned, witnessed the execution of this document by Kenneth A.
      Romancik, and Kenneth A. Romancik expressed to us that this document
      expressed their desires.


                                                -3-
       [sig] Genevieve Romancik      Dated: 10-4-99

       [sig] Corina Eckhart    Dated: 10-4-99

[Page D]

              Before me, the undersigned authority authorized to take acknowledgments and
       administer oaths, personally appeared:

       Kenneth A. Romancik

       who after being having duly sworn or affirmed to tell the truth, stated:

       1.      That Kenneth A. Romancik declared this instrument to be their last will
               and testament to the witnesses.

       2.      That Kenneth A. Romancik signed this instrument in their presence.

       3.      That the witnesses signed as witnesses in the presence of Kenneth A.
               Romancik and each other.

       4.      That Kenneth A. Romancik is well known to the witnesses, and the
               witnesses believe Kenneth A. Romancik to be of lawful age, of sound
               mind and under no undue influence or constraint.

       [sig] Ana Smith
       Officer

       Title of Officer: Notary Public

       My Commission Expires: 8-16-03.

       Appellant filed her original petition opposing probate of the will on March 24, 2006.1


       1
          According to Carol’s trial testimony, she was under the impression that Kenneth did not
have a will at the time of his death. She did not become aware of the probate proceeding at issue
in this case until April 2005, when she was contacted by Chicago attorney, who informed her that
Genevieve had filed a lawsuit on behalf of herself, and as the representative of Kenneth’s estate,
against Metabolife International, Inc. and The Chemins Company, Inc., in Federal District Court
for the Southern District of New York State. In the federal suit, Genevieve alleged that
Kenneth’s death was caused by his ingestion of the dietary supplement “Metabolife 356” which
was marketed by Metabolife International. Metabolife filed an objection to Genevieve’s
application to probate this will on June 22, 2005, arguing in part, that the estate had previously

                                                -4-
In her amended petition, Carol argued the will did not comply with the statutory requirements of

Section 59 of the Texas Probate Code. Specifically, she argued page C, where Kenneth’s

signature appears, was not part of the document at all, but had been added to an otherwise

unsigned will. Carol also asserted an estoppel defense, arguing that Genevieve’s knowledge of

the small estate administration should prevent the will from being admitted to probate almost

four years after the estate was closed. Following a bench trial, the trial court ordered the will

admitted to probate, and appointed Genevieve independent executor of the estate.

       In Issue One, Carol Romancik argues the trial court erred in admitting the will to probate

because the document was not signed by the testator and therefore is invalid under Section 59 of

the Texas Probate Code. When a purported will is neither holographic or self-proving, as is the

case here, Section 59 requires, in relevant part:

       (a)     Every last will and testament, except where otherwise provided by law,
               shall be in writing and signed by the testator in person or by another
               person for him by his direction and in his presence, and shall, if not wholly
               in the handwriting of the testator, be attested by two or more credible
               witnesses above the age of fourteen years who shall subscribe their names
               thereto in their own handwriting in the presence of the testator.

TEX .PROB.CODE ANN . § 59(a)(Vernon 2003).

       There is no dispute between the parties that the signature on page C is Kenneth’s. The

question is whether the four pages admitted to probate satisfied Section 59. Generally whether a

document complies with the statute is a question of law. See Eckels v. Davis, 111 S.W.3d 687,

694 (Tex.App.--Fort Worth 2003, pet. denied). However, in this case the answer to the


been administered, that Genevieve was not the true estate representative, and identifying Carol as
Kenneth’s wife and estate administrator. Following Metabolife’s objections, the trial court
issued a show cause order for Carol to appear at the probate proceeding. Carol filed her original
petition in opposition to probate shortly thereafter.

                                                    -5-
overarching legal question depends on the resolution of a fact issue. That is, whether the

signature satisfies Section 59 depends on what Kenneth intended by signing page C. See Luker v.

Youngmeyer, 36 S.W.3d 628, 630 (Tex.App.--Tyler 2000, no pet.)(“An instrument is not a will

(or codicil) unless it is executed with testamentary intent.”).

       Historically, Texas courts have treated questions of intent in a variety of circumstances as

uniquely within the realm of the fact finder because the determination of an individual’s intent in

taking a particular action is so dependant on evaluation of witnesses and credibility. See City of

Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004); State Farm Fire & Cas. Co. v. S.S., 858

S.W.2d 374, 378 (Tex. 1993); Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.

1986); See also In re Estate of Steed, 152 S.W.3d 797, 804 (Tex.App.--Texarkana 2004, pet.

denied)(in the context of answering the legal question of a party’s domicile, an individual’s intent

to make a location a permanent home is a fact question); Guthrie v. Suiter, 934 S.W.2d 820, 831

(Tex.App.--Houston [1st Dist.]1996, no writ)(summary judgment precluded by fact question

regarding testator’s capacity and intent following brain surgery); Russell v. City of Bryan, 797

S.W.2d 112, 115 (Tex.App.--Houston [14th Dist.] 1990, writ denied)(grantor’s intent in

executing deed is a fact question); Turboff v. Gertner, Aron & Ledet Investments, 763 S.W.2d

827, 830 (Tex.App.--Houston [14th Dist.] 1988, writ denied)(in contract law, the question of the

parties’ intent in signing a document is one for the fact finder); Lee-Emmert v. Macatee, Inc., 410

S.W.2d 489, 490 (Tex.Civ.App.--Dallas 1966, no writ)(intent to waive a defense in estoppels

context is a fact question); Manziel v. Williams, 262 S.W.2d 437, 438 (Tex.Civ.App.--Texarkana

1953, no writ)(whether party possessed the required intent to deceive for purposes of establishing

fraud cause of action is a fact question).


                                                 -6-
       Testamentary intent does not depend on the testator’s realization that he is making a will,

but rather in his intent to express his testamentary wishes in the instrument offered for probate.

Lukerm 36 S.W.3d at 630. To determine whether the testator intended a particular document to

be a testamentary disposition of his property, the court may consider the facts and circumstances

surrounding the instrument’s execution. Id., citing Shiels v. Shiels, 109 S.W.2d 1112, 1113

(Tex.Civ.App.--Texarkana 1937, no writ).

       The location of the signature within the document has long been considered in

determining the testator’s intent. Traditionally, Texas courts have accepted a wide variety of

locations and forms as satisfying the “signature” requirement of Section 59. See Luker, 36

S.W.3d at 630, citing Mortgage Bond Corp. of New York v. Haney, 105 S.W.2d 488, 491

(Tex.Civ.App.--Beaumont 1937, writ ref’d)(testator’s “x” was a sufficient signature on attested

will); Barnes v. Horne, 233 S.W.2d 859, 859 (Tex.Civ.App.--Austin 1921, no writ)(handwritten

letter concluding, “Your brother, Ed,” was a sufficient signature); Lawson v. Dawson’s Estate, 53

S.W. 64, 65 (Tex.Civ.App--Dallas 1899, writ ref’d)(handwritten will beginning, “I, J.P.J.

Dawson, being of sound mind . . . make this my last will and testament . . .” was sufficiently

signed). The key inquiry however, remains whether the testator intended the mark to constitute

an expression of his testamentary intent. Luker, 36 S.W.3d at 630.

       Without the benefit of the trial court’s findings of fact and conclusions of law, we must

infer that the court found all fact questions in favor of the judgment, and will affirm that

judgment on any legal theory supported by the evidence. See Serrano v. Union Planters Bank,

N.A., 162 S.W.3d 576, 580 (Tex.App.--El Paso 2004, pet. denied). By admitting the will to

probate, the trial court implicitly determined that the signature on page C was an expression of


                                                 -7-
Kenneth’s intent to make the document a will. See Luker, 36 S.W.3d at 630 (“It is essential,

however, that the maker shall have intended to express his testamentary wishes in the particular

instrument offered for probate,” quoting Price v. Huntsman, 430 S.W.2d 831, 832

(Tex.Civ.App.--Waco 1968, writ ref’d n.r.e.)).

       Carol has not challenged the legal or factual sufficiency of the evidence in support of this

finding.2 See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)(when

the reporter’s and clerk’s record are available to the appellate court, a trial court’s implied fact

findings may be challenged for legal and factual sufficiency). Because we are bound by the trial

court’s fact findings, including the trial court’s implicit finding that Kenneth Romancik intended

his signature on page C to be his testamentary mark; we must hold that the document satisfies the

statutory requirements. Issue One is overruled.

       In Issue Two, Appellant argues the doctrine of laches requires reversal. Generally, laches

is an affirmative defense comprised of two elements: (1) a party’s unreasonable delay in

asserting a legal or equitable right; and (2) a good faith and detrimental change of position due to

the delay. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex.App.--San Antonio 2005, no pet.).

       When laches is asserted before the statute of limitations has run, the defending party must

also show that allowing the action to proceed, “would work a grave injustice.” See Caldwell v.



       2
          Appellant argues that a sufficiency of the evidence review is not appropriate in this case
because the validity of a will is a legal question subject to de novo review. She characterizes the
issue as one of will construction and interpretation. However, we have not been able to identify a
disagreement between the parties over the meaning of the words used in the will. The issue
before us is limited to whether the four pages admitted to probate meet the requirements of
Section 59. As the cases we have cited indicate, the legal effect of the signature depends on
Kenneth’s intent when he signed the document. That fact issue is best left to the fact finder; the
trial court in this case.

                                                  -8-
Barnes, 975 S.W.2d 535, 538 (Tex. 1998). By admitting the document to probate, the trial court

implicitly determined Appellant failed to carry her burden on at least one of the two elements.

As before, Appellant has not challenged the legal or factual sufficiency of the trial court’s

implicit findings against her laches defense. Again, we are bound by the trial court’s factual

determinations. See Serrano, 162 S.W.3d at 580. Issue Two is overruled.

       Having overruled both of Appellant’s issues, the trial court’s judgment is affirmed.


December 11, 2008
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., Not Participating




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