
                           NO. 07-10-0151-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                             JUNE 14, 2011








              IN THE ESTATE OF JAMES E. CAMPBELL, DECEASED





         FROM THE COUNTY COURT AT LAW NO. 2 OF JOHNSON COUNTY[1]

            NO. P200919946; HONORABLE JERRY D. WEBBER, JUDGE





Before QUINN, C.J., and  HANCOCK and PIRTLE, JJ.

                                OPINION

      Appellant, Eva Brown, appeals from an order permitting  the  will
of James E. Campbell to be admitted to probate as a muniment of  title.
 Brown asserts the trial court erred by admitting  Campbell's  will  to
probate  because  (1)  the   evidence   was   legally   and   factually
insufficient to establish that the proponent of  the  will,  Danny  Ray
Rumsey, Appellee, was not in "default" for failing  to  file  the  will
for probate within four years of the death of the testator as  required
by § 73(a) of the Texas  Probate  Code,[2]  and  (2)  the  trial  court
erred, as a matter of law, by concluding that  the  will  was  properly
admissible to probate as a muniment of title.  We affirm.

                               Background

      James E. Campbell was first married in  1945  and  fathered  four
children.  Brown is Campbell's daughter by  that  first  marriage.   He
was divorced in 1958, and subsequently married Freda, who  already  had
children.  Rumsey is one of Campbell's two stepsons  from  that  second
marriage.  In January 1977, Campbell  and  Freda  both  executed  wills
using the same witnesses.  Campbell's  will  provided  that,  if  Freda
survived him, she would receive all his property and estate.   Campbell
also appointed Freda as his Independent Executrix.  In the event  Freda
predeceased Campbell, his will provided that  his  two  stepsons  would
share equally in his estate and Rumsey would serve as  his  Independent
Executor.  His will further "direct[ed] that no action be taken in  the
County Court or any other court relative to this  will  or  my  estate,
except to probate the will and return an  inventory,  appraisement  and
list of claims."

      In January 2002, Campbell  passed  away.   At  the  time  of  his
death, Campbell was survived by his wife, Freda, and  they  owned  real
property in Johnson County, Texas.  Freda  did  not  submit  Campbell's
will for probate and, approximately six years later  in  October  2008,
she passed away.  In July 2009, Rumsey  sought  to  probate  Campbell's
will as a muniment of title.  Brown subsequently filed  an  answer  and
opposition to the probate of that will asserting  that  Rumsey  was  in
default for failing to offer the will for probate within four years  of
Campbell's death.

      On December 17, 2009, the trial court held a hearing on  Rumsey's
application to determine whether Campbell's will should be  offered  to
probate.  Rumsey testified that, in December 2008, he and his  brother,
Phillip, went to Freda's house to look around  and  see  if  there  was
anything they needed to take care of due to her  passing.   They  found
Campbell's  and  Freda's  wills  in  a  lock  box  in  Freda's  office.
Thereafter, Rumsey sought to probate Campbell's will as a  muniment  of
title.

      Rumsey testified he first became aware of  Campbell's  will  when
he discovered it in Freda's lock box in December of 2008.  Until  then,
he had made no inquiry into whether Campbell even had a  will.   Rumsey
described  his  mother  as  being   fairly   organized,   private   and
meticulous.  He  concluded  that  Freda  must  have  had  knowledge  of
Campbell's will because she kept it in a lock box  containing  her  own
will and he assumed she could have probated the will.

      Brown testified  Freda  knew  her  husband  executed  a  will  in
January 1977 and kept all her documents in a fireproof safe  box.   She
also testified that Freda was very organized.  After Campbell's  death,
Brown accompanied Freda to a bank to open a safety deposit box.   Brown
waited in the car until Freda returned carrying a money bag  containing
papers.  Brown asked about her father's insurance and whether he had  a
will.  Freda never answered but instead handed Brown two  documents  --
her  father's   "do-not-resuscitate"   certificate   and   a   military
certificate dated in the 1940s.

      In January 2010,  the  trial  court  issued  an  order  admitting
Campbell's will to probate finding that, although more than four  years
had elapsed between Campbell's date of death and  the  application  for
probate, Rumsey "[was] not in default."  Brown  subsequently  requested
that the trial court make findings of  fact  and  conclusions  of  law,
and, in February 2010, the trial court responded.  In its  findings  of
fact, the trial court found, in pertinent part, that  Rumsey  "was  not
in possession of the will or aware of the will prior to December  2008"
and  "[did]  not  know  why  the  will  was  not  filed  for  probate."
Accordingly, the trial court concluded as a matter of law that  Rumsey,
the party applying for probate of the will, "was  not  in  default  for
failing to offer Decedent's will for probate within four years  of  the
date of Decedent's death."  This appeal followed.

                             Applicable Law

      In pertinent part, § 73 of the Texas Probate Code provides as
follows:


      (a)  No will shall be admitted to probate after the lapse of four
      years from the death of the testator unless it be shown by  proof
      that the party applying for such probate was not  in  default  in
      failing to present same for probate within four years  aforesaid;
      and in no case shall letters testamentary be issued where a  will
      is admitted to probate after the lapse of  four  years  from  the
      death of the testator.


(Emphasis added).

      The language of § 73(a) was added to the Revised  Civil  Statutes
in the 1879 revision of article 3248 and has remained  unchanged  since
that time.[3]  See Abrams v. Ross' Estate, 250 S.W.  1019,  1021  (Tex.
Comm'n App. 1923).[4]  One purpose  of  the  statute  is  to  impose  a
reasonable limit on the time in which the property of  a  person  dying
testate should be distributed among his legatees, after payment of  his
or her  debts.   In  the  Estate  of  Rothrock,  312  S.W.3d  271,  274
(Tex.App.--Tyler 2010, no pet.) (citing  Hodge  v.  Taylor,  87  S.W.2d
533, 535 (Tex.Civ.App.--Fort Worth 1935, writ dism'd)).   In  addition,
a person having custody of a will is charged with  the  knowledge  that
it must be filed for probate within the statutory period  in  order  to
rely on it, whether the necessity for doing  so  is  apparent  or  not.
Id., 312 S.W.3d at 274 (citing St. Mary's  Orphan  Asylum  of  Tex.  v.
Masterson, 57 Tex.Civ.App. 646, 654, 122 S.W. 587, 591  (Tex.Civ.App.--
San Antonio 1909, writ  ref'd)).   But  see  Kamoos  v.  Woodward,  570
S.W.2d 6, 8-9 (Tex.App.--San Antonio 1978, writ ref'd n.r.e.)  (holding
that proponent of will was not in default for failing  to  present  the
will for probate within four years of the testator's  death  where  due
to the nature of the property of which she was aware  and  her  limited
resources, she didn't think it necessary to probate the will).

      In the context of § 73(a) "default" means the failure to  probate
a will due to the absence of reasonable diligence on the  part  of  the
party offering the instrument.   Schindler  v.  Schindler,  119  S.W.3d
923, 929 (Tex.App.--Dallas 2003, pet. denied) (citing House  v.  House,
222 S.W. 322, 325 (Tex.Civ.App.--Texarkana 1920, writ  dism'd  w.o.j.);
Kamoos, 570 S.W.2d at 8.  The burden  is  on  the  party  applying  for
probate to show he or she was not in "default" by failing to present  a
will for probate within the proper time.  In the  Estate  of  Rothrock,
312 S.W.3d at 274.  The question of  whether  the  party  applying  for
probate is in default is ordinarily a question of fact  for  the  trial
court.  Kamoos, 570 S.W.2d at 7-8  (citing  Armstrong  v.  Carter,  291
S.W. 626 (Tex.Civ.App.--Waco 1927, no writ).  In  Armstrong,  the  Waco
Court said:

      Under [the prior statute] it is  provided  that  a  will  may  be
      probated after four years, if it is shown that the party applying
      for such probate was not in default in offering same for  probate
      before the four years had elapsed.  Clearly, the intention of the
      Legislature was to lodge with the trial court or jury  the  power
      to determine as a question of fact, where there is  any  evidence
      raising the issue, whether there was a default.  The tendency  of
      our courts has been from the earliest decisions to  permit  wills
      to be filed after  the  four-year  period,  where  there  is  any
      evidence of a probative force which would excuse the  failure  to
      offer the will sooner.


(Citations omitted).  Id., 291 S.W. at 627.


      Generally, a party applying for probate would not  be  considered
personally in default if he or she did not know  of  the  existence  of
the will provided such  proponent  was  not  negligent  in  failing  to
discover whether there was a  will.   Schindler,  119  S.W.3d  at  929.
Furthermore, § 73(a) has repeatedly been interpreted as providing  that
the default of another does not  preclude  a  non-defaulting  applicant
from offering a will for  probate  as  a  muniment  of  title.   In  re
Williams, 111 S.W.3d 259,  263  (Tex.App.--Texarkana  2003,  no  pet.);
Masterson, 122 S.W.  at  591  (holding  that  the  party  applying  for
probate must  be  judged  by  his  own  conduct  and  circumstances  in
evaluating whether his burden has been met regarding a finding that  he
is not in "default" for failing to present a will  for  probate  within
the proper time).  But see  Brown  v.  Byrd,  512  S.W.2d  758,  760-61
(Tex.Civ.App.--Tyler 1974, no writ) (finding that, if any  devisee  was
in default, such default would bar his  or  her  descendants  from  any
right to have such will probated); Abrams, 250 S.W. at 1019;  Faris  v.
Faris, 138 S.W.2d 830 (Tex.Civ.App. Dallas 1940, writ ref'd); and  Matt
v. Ward, 255 S.W. 794 (Tex.Civ.App.--Fort Worth 1923, writ ref'd).

                     Standard of Review - Issue One

      By her first issue, Brown contends the evidence was  legally  and
factually insufficient to establish that Rumsey was  not  in  "default"
for failing to file Campbell's will for probate within  four  years  of
his death.  In  conducting  a  legal  sufficiency  review,[5]  we  must
consider the evidence in the light most  favorable  to  the  challenged
finding, indulge every reasonable inference  to  support  it;  City  of
Keller  v.  Wilson,  168  S.W.3d  802,  822  (Tex.  2005),  and  credit
favorable evidence if  a  reasonable  factfinder  could  and  disregard
contrary evidence unless a reasonable factfinder  could  not.   Id.  at
827.  A challenge to legal sufficiency will be  sustained  when,  among
other things, the evidence offered to establish a vital fact  does  not
exceed a scintilla.[6]  Kroger Tex. Ltd. P'ship v. Suberu,  216  S.W.3d
788, 793 (Tex. 2006).  Furthermore,  so  long  as  the  evidence  falls
within the zone of reasonable disagreement, we may not invade the  role
of the factfinder, who alone determines the credibility  of  witnesses,
the weight to be given  their  testimony,  and  whether  to  accept  or
reject all or part of their testimony.  City of Keller, 168  S.W.3d  at
822.  The final test for legal sufficiency must always be  whether  the
evidence at trial would enable reasonable  and  fair-minded  people  to
reach the verdict under review.  Id. at 827.

      An assertion that  the  evidence  is  factually  insufficient  to
support a fact finding means that the evidence supporting  the  finding
is so weak or the evidence to the contrary is so overwhelming that  the
answer should be set aside and a new trial ordered.  Garza  v.  Alviar,
395 S.W.2d 821, 823 (Tex. 1965).   In  reviewing  factual  sufficiency,
the reviewing court  must  consider,  examine  and  weigh  all  of  the
evidence in the record.  Maritime Overseas Corp. v. Ellis,  971  S.W.2d
402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017,  119  S.Ct.  541,
142 L.Ed.2d 450 (1998).  In doing so, the  court  no  longer  considers
the evidence in the light most favorable to the finding;  instead,  the
court considers and  weighs  all  the  evidence,  and  sets  aside  the
disputed finding only if it is so contrary  to  the  great  weight  and
preponderance of the evidence as to be clearly wrong and  unjust.   Id.
at  407;  Gooch  v.  American  Sling  Co.,  902  S.W.2d   181,   183-84
(Tex.App.(Fort Worth 1995, no writ).

                                Analysis

      Because Rumsey filed the application to probate  Campbell's  will
more than four years after Campbell's death, it was his burden to  show
that he  exercised  reasonable  diligence  in  offering  the  will  for
probate, i.e., that he was  not  in  "default."   Brown's  first  issue
contends the trial court erred in its findings of fact  because  Rumsey
failed to meet that burden.

      Here,  the  evidence  shows  that  Rumsey  first  discovered  his
stepfather's will in December of 2008,  when  he  opened  his  mother's
lock box shortly after her death.   The  evidence  further  shows  that
prior to that discovery he was  unaware  of  a  need  to  probate  that
will[7] and that he offered the will for probate  within  seven  months
of its discovery.  Considering all of the evidence in  the  light  most
favorable to the judgment, we  believe  a  reasonable  and  fair-minded
jurist could have  found  that  Rumsey  was  reasonably  diligent  and,
therefore, not in default for failing to present his stepfather's  will
for probate within the time allowed by §  73(a).   Furthermore,  we  do
not believe that the finding that Rumsey  was  not  in  default  is  so
contrary to the great weight and preponderance of the  evidence  as  to
be clearly wrong and manifestly unjust.  Accordingly, we find that  the
evidence  presented  was  both  legally  and  factually  sufficient  to
establish that Rumsey was not in "default"  for  failing  to  file  the
will for probate within four years of Campbell's death.  Issue  one  is
overruled.

                     Standard of Review - Issue Two

      Brown's second issue  contends  the  trial  court  erred  in  its
conclusions of law by misapplying the law to the facts.  Brown  asserts
the trial court erred when  it  admitted  Campbell's  will  to  probate
because more than four years lapsed between Campbell's  death  in  2002
and Rumsey's application for  probate  in  2009.   In  support  of  her
argument, she contends that because Freda was  in  default  for  having
possession of Campbell's will for six years after his death  and  never
probating it, then Rumsey's attempt to  probate  that  will  should  be
barred because  he  is  in  no  better  position  than  his  mother.[8]
Because Freda did not probate Campbell's will, Brown  asserts  Campbell
is considered to have died intestate  and  Rumsey  is  entitled  to  no
greater share from Campbell's estate than his mother  was  entitled  as
an heir-at-law.  Specifically, Brown contends the trial court  made  an
incorrect conclusion of law by failing to  attribute  Freda's  lack  of
diligence to Rumsey.

      Rumsey contends that Freda's default cannot  be  imputed  to  him
because, as the proponent of  Campbell's  will,  the  proper  issue  is
whether he defaulted, not whether  Freda  defaulted.   Because  he  was
unaware of Campbell's will until its discovery in  Freda's  lockbox  in
December of 2008, and he offered it for  probate  within  a  reasonable
time of his acquiring an interest in the property and learning  of  the
existence of Campbell's  will,  he  is  not  in  "default"  within  the
meaning of §  73(a).   Accordingly,  Rumsey  asserts  the  trial  court
properly found that he was not in default.

      A trial court's conclusions of law are  reviewed  de  novo.   BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d  789,  794  (Tex.  2002).
An appellant may not challenge a trial court's conclusions of  law  for
factual sufficiency; however, the reviewing court may review the  trial
court's legal conclusions drawn  from  the  facts  to  determine  their
correctness.  Neufeld v. Hudnall, No. 07-09-00350-CV,  2010  Tex.  App.
LEXIS 5601, at  *4  (Tex.App.—Amarillo  July  16,  2010,  pet.  denied)
(mem.op.); Mustang Amusements, Inc. v.  Sinclair,  No.  10-07-00362-CV,
2009 Tex. App. LEXIS 8338, at *8-9 (Tex.App.—Waco  Oct.  28,  2009,  no
pet.) (mem. op.).

                                Analysis

      In taking the position that the trial court erred by  failing  to
attribute Freda's lack of diligence to  Rumsey,  Brown  relies  heavily
upon two  cases:  In  re  Estate  of  Williams,  111  S.W.3d  259,  263
(Tex.App.--Texarkana 2003, no pet.), and Schindler  v.  Schindler,  119
S.W.3d 923, 929 (Tex.App.--Dallas 2003, pet. denied).   As  more  fully
discussed below, both Williams and Schindler  involve  fact  situations
where the title to real property is impacted by events occurring  after
the date of death of  the  testator  but  before  the  application  for
probate, where admitting the will to probate operates so as to work  an
injustice pertaining to the ownership of that property.  Because  court
decisions dealing with this issue have shown considerable disarray  and
because  we  believe  that  both  cases  relied  upon  by   Brown   are
distinguishable from the facts of  this  case,  we  conclude  that  our
decision is not controlled by their holdings.

                        In re Estate of Williams

      We believe that the holding in Williams does not support  Brown's
conclusion.  Brown cites Williams for  the  proposition  that  "if  any
heir or devisee was in default, such  default  would  bar  his  or  her
descendants or legatees from any right to  have  such  will  probated."
However, a careful reading of  the  opinion  shows  this  was  not  the
holding of the court.  In Williams, the Texarkana Court clearly  states
that "[o]nly the default of the party applying for the probate  of  the
will is an issue."  In that  case,  C.  O.  Williams  applied  for  and
obtained probate of the will of his father, C.  F.  Williams,  eighteen
years after his death.  In reversing the decision of  the  trial  court
and denying probate of the will, the appellate court  said,  "[b]ecause
C. O. was in default in failing to present the will  within  the  four-
year period, the trial court erred in admitting the will  to  probate."
In the final analysis, no default was imputed to anyone  and  the  will
in question was denied probate because the party applying  for  probate
of the will was himself in default.

                         Schindler v. Schindler

      As to  Schindler,  while  we  acknowledge  the  Dallas  Court  of
Appeals did state, "if  any  heir  or  devisee  was  in  default,  such
default would bar his or her descendants or legatees from any right  to
have such will probated," 119 S.W.3d at 929, we  do  not  believe  that
this  opinion,  nor  the  three  cases  cited  in   support   of   this
statement,[9] should be read as  mandating  the  inflexible,  automatic
imputation of default in every case.  Under  that  standard,  before  a
will could be probated as a muniment of  title  more  than  four  years
after the death of the testator, the proponent of  a  will  would  have
the burden of showing that every person from whom he or  she  inherited
an interest was not in default.  Such a requirement would  be  contrary
to the long standing practice in Texas of admitting  wills  to  probate
as a muniment of title, more  than  four  years  after  the  testator's
death, where to do so would not work an injustice and the proponent  of
the will can establish reasonable diligence on his or  her  part  alone
in offering the will for probate.  See Kamoos, 570 S.W.2d at 7.

      The dispute in Schindler involved the probate of the second  will
of Ruby Schindler.  There, the only non-defaulting proponent  stood  to
inherit property that  had  previously  passed  to  other  devisees  in
accordance to the terms  of  Ruby's  earlier  probated  original  will.
Because the proponent's putative predecessor  in  title  had  not  only
"defaulted" in offering the second  will  for  probate,  but  had  also
actually probated the original  will,  in  order  to  avoid  an  unjust
result, the trial court attributed the lack of diligence  on  the  part
of the proponent's predecessor in title to the proponent.  Those  facts
alone significantly differentiate Schindler  from  the  facts  of  this
case.

        In Abrams, forty-nine years after the death  of  the  testator,
the trial court  denied  probate  of  the  will  of  Sarah  Ross.   The
intermediate appellate  court  reversed  that  decision  on  procedural
grounds and remanded the matter to the  trial  court  so  that  further
testimony could be offered pertaining to  the  diligence  of  the  will
proponents and the standing of the will contestants.  In affirming  the
decision of the intermediate appellate court to remand  the  matter  to
the trial court  for  further  proceedings,  the  Texas  Commission  of
Appeals  offered,  as  dicta,  an  opinion  as  to  future  burden  the
proponents faced in establishing that they  were  not  in  default  for
failing to timely offer the will for probate.  Due to events  affecting
title to real  property  the  subject  of  the  probate  estate,  which
occurred  during  the  intervening  forty-nine  years,  the  Commission
suggested that the default of a predecessor in title would bar  his  or
her descendants from any right to have the will  probated.   Under  the
facts of that case, a contrary result would have worked an injustice.

      In Faris, the testator died leaving a will  that  bequeathed  his
entire estate  to  his  wife,  Sophia.   With  full  knowledge  of  the
existence of the will, Sophia put it in her lock box where it  remained
until  her  death,  nearly  twenty  years  later.   After  her   death,
Ellsworth Faris, her son and the proponent of the  will,  withdrew  the
will from his mother's lock box and offered it in probate.   The  court
of appeals affirmed the trial court's decision to deny probate  of  the
will as a muniment of title  holding  that  Sophia  had  abandoned  any
rights she might have had  under  the  will  by  not  offering  it  for
probate while it was in her possession.  The court  reasoned  that  "it
would be against the public policy of this State to allow a will to  be
probated some nineteen years after the death of the testator . .  .  ."
Faris, 138 S.W.2d at 831.  In its formal "Findings of Fact," the  trial
court found that Ellsworth also had knowledge of the existence  of  the
will  during  that  critical   nineteen-year   period.    Under   these
circumstances, because it could be said that the proponent of the  will
also failed to use  reasonable  diligence  in  offering  the  will  for
probate, the court's decision did not necessarily turn on the  transfer
of default from Sophia to her descendant.

      Finally, in Matt v. Ward, based on the  principle  that  an  heir
occupies the  place  of  his  or  her  ancestor,  the  appellate  court
concluded that because the  proponent's  mother  was  in  default,  the
proponent would be precluded from probating a will  after  four  years.
In that case, unlike here, the trial court denied probate of  the  will
after the proponent unsuccessfully argued that the dicta in Abrams  did
not control.

      Because we believe that the  strict  application  of  the  above-
referenced quote from Schindler misconstrues §  73(a),  misapplies  the
authorities cited, and is contrary to a great body of  law  allowing  a
non-defaulting proponent to offer a will for  probate  more  than  four
years after the death of the testator  when  intervening  events  would
not work an injustice or frustrate  the  intent  of  the  testator,  we
decline to apply the holding of our sister court to the facts  of  this
case and,  instead,  choose  to  follow  Armstrong,  Kamoos  and  their
progeny.

       Accordingly,  we  are  unable  to  say  that  the  trial   court
erroneously applied the law to the facts of this case.   Issue  two  is
overruled.

                               Conclusion

      The trial court’s judgment is affirmed.



                                        Patrick A. Pirtle
                                              Justice
-----------------------
[1]Originally appealed to the 10th Court of Appeals (Waco),  this  case
was transferred to this Court by the Texas Supreme  Court  pursuant  to
its docket equalization efforts.  See Tex. Gov(t  Code  Ann.  (  73.001
(West 2005).  We are unaware of any conflict between precedent  of  the
10th Court of Appeals and that of this Court  on  any  relevant  issue.
See Tex. R. App. P. 41.3.



[2]See Tex. Prob. Code Ann. § 73(a)  (West  2003).    For  convenience,
throughout the remainder of this opinion, references to the  provisions
of the Texas Probate Code  will  be  cited  simply  as  "section  ____"
and/or  "§ ____."

[3]We note that in enacting §  256.003(a)  of  the  Estates  Code,  the
Legislature has slightly altered the language that has now been in  use
for over 130 years.  See Act of May 26,  2009,  81st  Leg.,  R.S.,  ch.
680, 2009 Tex. Gen. Laws 1512, effective January 1, 2014.

[4]As discussed more fully hereinbelow, the precedential value of  this
opinion is subject to some debate.  Although  some  citations  to  this
opinion have indicated that the Texas Supreme Court took no  action  on
the decision of the Texas Commission of Appeals, other  citations  have
indicated that the opinion  of  the  Commission  was  "adopted,"  while
still others have indicated that only the judgment  of  the  Commission
was adopted.  The better reasoned view is that the Supreme  Court  took
no action.  Therefore, it cannot be stated with certainty  whether  the
reasoning or  specific  holding  of  the  Commission  was  approved  or
adopted by the Texas Supreme Court.  See The Greenbook: Texas Rules  of
Form 5.2 (Texas Law Review Ass'n ed., 12th ed. 2010).

[5]When both legal and factual sufficiency  challenges  are  raised  on
appeal, the reviewing court must first examine  the  legal  sufficiency
of the evidence.  See Glover v. Tex. Gen.  Indemnity  Co.,  619  S.W.2d
400, 401 (Tex. 1981).

[6]Evidence does not exceed a scintilla if it is "so weak as to  do  no
more than create a mere surmise or suspicion"  that  the  fact  exists.
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).

[7]Prior to Freda's  death  Rumsey  was  neither  an  executor  nor  an
"interested party" in  Campbell's  estate.   Therefore,  prior  to  her
death, Rumsey did not have the authority to apply  to  have  Campbell's
will probated.  See Tex. Prob. Code Ann. § 76 (West 2003).

[8]It should  be  noted  that  in  its  formal  Findings  of  Fact  and
Conclusions of Law the trial court never specifically found that  Freda
was in default and Brown never requested additional  findings  of  fact
or conclusions of law.

[9]See Abrams, 250 S.W. at 1022; Faris, 138 S.W.2d at 832; and Matt,
255 S.W. at 795-96.



