Affirmed and Majority and Concurring Opinions filed September 19, 2017.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00648-CV

                         LINDA FERREIRA, Appellant
                                         V.
        DOUGLAS W. BUTLER AND DEBRA L. BUTLER, Appellees

                    On Appeal from the Probate Court No. 3
                            Harris County, Texas
                        Trial Court Cause No. 441962

                      MAJORITY OPINION

      Appellant Linda Ferreira, in her capacity as the executrix of Norman
Ferreira’s estate, applied to probate the will of Norman’s deceased wife, Patricia
Ann Hill, nine years after Patricia’s death. The appellees—Patricia’s children from
a previous marriage—contested the application, asserting that Linda did not meet
her burden to probate the will. The Texas Estates Code provides that a will may not
be probated more than four years after the death of a testator “unless it is shown by
proof that the applicant for the probate of the will was not in default in failing to
present the will.” Tex. Est. Code Ann. § 256.003(a) (West Supp. 2016).

      After considering summary judgment motions filed by both parties, the
probate court granted appellees’ motion for summary judgment and dismissed
Linda’s application to probate the will. On appeal, Linda argues that she was not in
default because she applied to probate the will approximately one month after
discovering it. Appellees argue that the default inquiry should include Norman
rather than Linda, and thus the summary judgment should be affirmed because there
is no evidence Norman was not in default.

      We conclude that (1) the default inquiry should include Norman because
Linda filed the application in her capacity as executrix of Norman’s estate, and (2)
Linda failed to offer summary judgment evidence raising a genuine issue of material
fact that Norman was not in default in failing to present the will. We therefore affirm
the summary judgment rejecting Linda’s application.

                                   BACKGROUND

      Patricia Ann Hill died on January 12, 2006. Patricia was survived by her
husband, Norman Ferreira. Patricia’s children from a prior marriage, appellees
Douglas and Debra Butler, also survived her. In her will, Patricia left all of her
property to Norman. Norman did not probate Patricia’s will before he died on
February 22, 2015.

      Norman was previously married to appellant Linda Ferreira, but they divorced
before Norman married Patricia. Norman’s will devised real property and the
residue of his estate to Linda, and she was appointed as independent executrix for
Norman’s estate. As Linda was going through documents in Norman’s home, she
found Patricia’s will. About one month later, she applied to probate the will as a
muniment of title in her capacity as executrix of Norman’s estate. Appellees


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contested the application.

       Appellees filed a hybrid no-evidence and traditional motion for summary
judgment seeking to dismiss the application for probate of Patricia’s will.
Appellees’ motion asserted there was no evidence the applicant was not in default
in failing to present the will on or before the fourth anniversary of the testator’s
death, as required by section 256.003(a) of the Texas Estates Code. Linda responded
with evidence that she discovered Patricia’s will in July 2015 and offered it for
probate as a muniment of title one month later.

       Linda also filed a cross-motion for summary judgment, arguing that this
evidence conclusively proved she met her burden to admit Patricia’s will to probate.
In response, appellees argued that because Linda appeared in her capacity as the
representative of Norman’s estate, the default inquiry should focus on Norman rather
than Linda, and there was no evidence showing Norman did not default in probating
Patricia’s will.

       The probate court granted appellees’ hybrid no-evidence and traditional
summary judgment motion and dismissed the application for probate of the will.
Linda appealed.

                                          ANALYSIS

       Linda’s appeal presents two issues. First, Linda argues the probate court erred
in granting appellees’ no-evidence and traditional motion for summary judgment.
Second, Linda argues the probate court erred in denying her cross-motion for
summary judgment.1 Resolution of both issues turns on whether Norman’s conduct,


       1
         Although the probate court did not specifically rule on Linda’s cross-motion for summary
judgment, the cross-motions were mutually exclusive, and the order granting appellees’ motion
implicitly denied Linda’s motion. See Gen. Agents Ins. Co. of Am., Inc. v. El Naggar, 340 S.W.3d
552, 557 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Therefore, this issue was
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in addition to Linda’s conduct, is relevant to the default analysis.

I.     Standard of review and applicable law
       We review a trial court’s grant of summary judgment de novo.              Lyda
Swinerton Builders, Inc. v. Cathay Bank, 409 S.W.3d 221, 229 (Tex. App.—Houston
[14th Dist.] 2013, pet. denied). We consider all the evidence in the light most
favorable to the non-movant, crediting evidence favorable to the non-movant if a
reasonable factfinder could and disregarding contrary evidence unless a reasonable
factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006). When a party moves for summary judgment on both no-evidence and
traditional grounds, we address the no-evidence grounds first. Burnett v. Carnes
Funeral Home, Inc., No. 14–12–01159–CV, 2014 WL 2601567, at *3 (Tex. App.—
Houston [14th Dist.] June 10, 2014, no pet.) (citing Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004)). When both parties move for summary judgment and
the trial court grants one motion and denies the other, we review both motions and
determine all questions presented. Lane-Valente Indus. (Nat’l), Inc. v. J.P. Morgan
Chase, N.A., 468 S.W.3d 200, 204 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

       In a no-evidence motion for summary judgment, the movant asserts that there
is no evidence of one or more essential elements of the claims the non-movant has
the burden of proving. See Tex. R. Civ. P. 166a(i). To defeat the motion, the non-
movant has the burden to respond with more than a scintilla of evidence raising a
genuine issue of material fact as to the challenged elements. Grant v. Joe Myers
Toyota, Inc., 11 S.W.3d 419, 422 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

       A party filing a traditional motion for summary judgment has the initial
burden of showing that there is no genuine issue of material fact and it is entitled to


preserved. Tex. R. App. P. 33.1(a)(2)(A); El Naggar, 340 S.W.3d at 557.

                                              4
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant does so,
the burden shifts to the non-movant to raise a genuine issue of material fact sufficient
to defeat summary judgment. Lyda Swinerton Builders, Inc., 409 S.W.3d at 229.

         The various motions for summary judgment focus on section 256.003 of the
Texas Estates Code, which provides:

         . . . a will may not be admitted to probate after the fourth anniversary
         of the testator’s death unless it is shown by proof that the applicant for
         the probate of the will was not in default in failing to present the will
         for probate on or before the fourth anniversary of the testator’s death.
Tex. Est. Code Ann. § 256.003(a) (West Supp. 2016).2 One purpose of this section
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 payments of his or her debts.”
In re Estate of Campbell, 343 S.W.3d 899, 902-03 (Tex. App.—Amarillo 2011, no
pet.).

         To apply this statute, we must determine who the applicant is and what default
means. Eligible “applicants” to probate a will are an executor named in the will, an
independent administrator, or any “interested person.” Tex. Est. Code Ann. §


         2
          The Legislature repealed the Probate Code and re-codified its provisions in the Estates
Code, effective January 1, 2014, without making substantive changes to section 256.003. See In
re Estate of Hammack, No. 12–15–00246–CV, 2016 WL 1446083, at *3 (Tex. App.—Tyler Apr.
13, 2016, no pet.) (mem. op.). Although this case is governed by the current Estates Code, many
of the relevant cases we discuss below were decided under section 73 of the prior Probate Code or
(prior to 1956) under article 3326 of the Revised Civil Statutes. The relevant portions of section
73 and article 3326 (which were identical) provided: “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 the same for probate within the
four years aforesaid . . . .” Act of 1955, 54th Leg., R.S., ch. 55, § 73, sec. 434, 1954 Tex. Gen.
Laws 88, 112, repealed by Act of 2009, 81st Leg., R.S., ch. 680, §10, 2009 Tex. Gen. Laws 1512,
1731; see also Act of 1925, 39th Leg., R.S., S.B. 84, art. 3326, p. 1012, repealed by Act of 1955,
54th Leg., R.S., ch. 55, § 73, sec. 434, 1954 Tex. Gen. Laws 88, 112.

                                                5
256.051 (West Supp. 2016). An interested person is an “heir, devisee, spouse,
creditor, or any other having a property right in or claim against an estate being
administered.” Tex. Est. Code Ann. § 22.018(1) (West 2014). The person’s
“interest” must be a pecuniary interest, “real or prospective, absolute or contingent,”
that will be affected by the probate of the will. Logan v. Thomason, 202 S.W.2d
212, 215 (Tex. 1947).

       “Default” under section 256.003 means a failure to probate a will due to the
absence of reasonable diligence of the party offering the will. See Schindler v.
Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. denied). The party
offering the will bears the burden to show the applicant was not in default for failing
to probate the will within four years of the testator’s death. Id.3

II.    The trial court properly granted appellees’ no-evidence motion for
       summary judgment.
       A.      Norman’s conduct is relevant in determining whether the applicant
               was in default in failing to probate the will.
       It is undisputed that Patricia’s will was offered for probate more than four
years after her death. Therefore, Linda must show the applicant was not in default
in failing to probate the will within the four-year period. We begin our analysis of
the summary judgments by determining whose conduct is relevant in the default
analysis. Linda argues she was not in default because she probated the will about


       3
          We note that Linda applied to probate Patricia’s will as a muniment of title under section
257.054 of the Estates Code. Unlike section 256.003, which contains an express exception to the
four-year deadline if the applicant can show no default, section 257.054 contains no exceptions of
any kind. Compare Tex. Est. Code Ann. § 256.003(a), with Tex. Est. Code Ann. § 257.054(2)
(West 2014) (requiring that applicant to probate will as muniment of title prove “four years have
not elapsed since the date of the testator’s death and before the application”). We need not decide
whether the section 256.003 exception is available when applying to probate a will as a muniment
of title under section 257.054 because even if it were available, we hold below that Linda does not
qualify for the exception.

                                                 6
one month after she found it. Appellees argue that the default inquiry should include
Norman’s conduct because Linda appeared in her capacity as executrix of Norman’s
estate. Linda responds that the capacity in which she appears is not relevant and that
she, as the applicant, must be judged by her own conduct.

      We conclude that the default inquiry must include Norman’s conduct for two
reasons. First, Linda applied to probate the will in her capacity as executrix of
Norman’s estate. Second, even if Linda had applied in her individual capacity, we
would still consider Norman’s conduct because Linda can claim no greater interest
in Patricia’s will than Norman had when he died.

             1.     As executrix, Linda stands in the shoes of Norman’s estate.
      A personal representative of an estate has the capacity to act on behalf of the
estate to recover personal property, debts, damages, or title to or possession of land.
See Tex. Est. Code § 351.054(a) (West 2014); Austin Nursing Ctr., Inc. v. Lovato,
171 S.W.3d 845, 849 (Tex. 2005). Capacity and standing are distinct concepts. See
Lovato at 848-49. Standing concerns whether a party was personally aggrieved,
while capacity concerns whether a party has legal authority to act. Id.; Nootsie, Ltd.
v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). A court can
render judgment for a party only in the capacity in which the party sued. Gracia v.
RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 520 (Tex. 1984) (settlement award
where party sued in capacity of next of friend was not res judicata to second suit by
party individually).

      In her capacity as executrix of Norman’s estate, Linda applied to probate
Patricia’s will as a muniment of title. As executrix, Linda is acting on behalf of the
estate to perfect title in property that Patricia’s will left to Norman. See Lovato, 171
S.W.3d at 849 (discussing capacity of executor to sue on estate’s behalf). The
interest of Norman’s estate in Patricia’s estate is the basis on which Linda claims to

                                           7
be an “interested person” eligible to probate Patricia’s will. Tex. Est. Code Ann.
§ 256.051. Because Linda is standing in the shoes of Norman’s estate, the default
inquiry must focus on Norman.

      Linda argues that section 256.003(a) is not conditioned on the capacity in
which the applicant comes before the court, but merely requires that the applicant is
not in default. We disagree. The term “applicant” in the statute refers to someone
who is eligible to probate the will. See Tex. Est. Code Ann. §§ 256.003(a), 256.051.
Linda chose to apply to probate the will as an eligible “applicant” in her capacity as
the executrix of Norman’s estate. See id. § 256.051. Because Linda’s status as the
“applicant” depends on her capacity as the executrix of Norman’s estate, our inquiry
includes whether Norman was in default.

             2.     Even as an individual devisee under Norman’s will, Linda
                    can claim no interest greater than Norman had.
      Although Linda did not apply in her individual capacity to probate Patricia’s
will, Linda is a devisee under Norman’s will and Norman is a devisee under
Patricia’s will. Linda is therefore a devisee of a devisee of Patricia’s will, and Linda
could qualify to probate Patricia’s will as an interested person on that basis. Dickson
v. Dickson, 5 S.W.2d 744, 747 (Tex. Comm’n App. 1928, judgm’t adopted).

      There is a split among the courts of appeals regarding whether any default by
a devisee under a will is attributed to that devisee’s own heirs or devisees. Compare
Campbell, 343 S.W.3d at 905–08 (holding default of devisee did not prevent
devisee’s devisee from probating the will), with Schindler, 119 S.W.3d at 929
(holding devisee’s default prevented the devisee’s devisee from probating the will).
In these two cases, the applicants to probate the deceased’s will were not devisees
under that will, but were devisees of a devisee under the will. Although the cases
presented similar facts, the courts reached different conclusions.

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      In Campbell, James Campbell died in 2002 and left all his property to his wife,
Freda, in his will. Freda did not probate his will before she died in 2008. Freda’s
son from a previous marriage, Danny Ray Rumsey, found James’s will in Freda’s
lock box and sought to probate it in 2009. James’s daughter from a previous
marriage, Eva Brown, challenged the application to probate the will. The trial court
admitted James’s will to probate, finding that Rumsey was not aware of James’s will
until he found it and concluding Rumsey was not in default for failing to probate the
will within four years of Campbell’s death.        The Amarillo Court of Appeals
affirmed, holding that the default of a devisee under a will does not preclude that
devisee’s devisee from probating the will if admitting the will to probate would not
work an injustice or frustrate the testator’s intent. Campbell, 343 S.W.3d at 907–08.

      In contrast, the Dallas Court of Appeals follows the rule 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.” Schindler, 119 S.W.3d at 929. In
Schindler, Ruby and Jodie were married when Ruby died in 1996. Ruby had
executed a will in 1987, but then executed another will in 1995, which revoked all
previous wills. Jodie probated the 1987 will as a muniment of title. Jodie married
Mary after Ruby’s death, and Jodie’s will left much of his property to Mary. Jodie
died in 2000, and Mary applied to probate Ruby’s 1995 will or admit it to revoke the
1987 will. It was undisputed that Jodie was in default in failing to probate the 1995
will. Id. at 930. The trial court denied the application to probate the 1995 will and
the court of appeals affirmed, explaining that “Mary, as a devisee of Jodie, stands in
no better position than Jodie.” Id.

      Although Campbell and Schindler are not binding precedent, we are required
to follow Faris v. Faris, 138 S.W.2d 830 (Tex. Civ. App.—Dallas 1940, writ ref’d),
because the Supreme Court of Texas adopted that opinion and judgment by refusing

                                          9
a writ of error. See Tex. R. App. P. 56.1(c); Tex. Utils. Elec. Co. v. Timmons, 947
S.W.2d 191, 199 (Tex. 1997). Faris features similar facts and holds, like Schindler,
that “devisees of a devisee” stand in the position of the devisee in the will. Faris,
138 S.W.2d at 832. In Faris, George died in 1918 with a will that left everything to
his wife, Sophia. Id. at 831. Sophia died in 1937 without probating George’s will.
Sophia’s will passed the community homestead to Ellsworth, a son of George and
Sophia. Id. Ellsworth offered George’s will for probate as a muniment of title in
connection with his application to probate Sophia’s will.                    Ellsworth’s sibling
contested the probate of George’s will, and the trial court ruled that it should not be
probated. The court explained that Sophia had abandoned her rights under George’s
will and could not devise any property she would have been entitled to under
George’s will. Id. The court thus concluded that Ellsworth could not claim rights
under George’s will because he could acquire no greater interest than Sophia had
when she died. Id. at 832.

       On appeal, the Dallas Court of Appeals rejected Ellsworth’s argument that he
was not personally in default and therefore the will should be probated. Id. The
court of appeals agreed with the trial court in concluding that because Sophia had
abandoned her rights under George’s will, she had no interest in his estate to devise
in her own will except what she had inherited through intestate succession. Id.
Therefore, Ellsworth could claim no greater interest in George’s will than Sophia.
Id. The court affirmed the denial of probate for George’s will. Id.4

       It is unclear whether the proponents of the wills in Faris, Schindler, and
Campbell attempted to probate those wills individually or in their capacity as

       4
          Linda and the court in Campbell attempt to distinguish Faris by pointing out that the trial
court found Ellsworth knew of George’s will before George died. See Campbell, 343 S.W.3d at
907; Faris, 138 S.W.2d at 831. Although the trial court in Faris did find this fact, it formed no
part of the Dallas Court of Appeals’ legal analysis. See 138 S.W.2d at 832.

                                                 10
executors of a devisee’s estate. But even if Linda had sought to probate Patricia’s
will individually, Faris would be precedent we must follow. Like Sophia in Faris,
Norman did not probate Patricia’s will and therefore had no interest in Patricia’s
estate other than what passed to him by intestate succession. See Faris, 138 S.W.2d
at 832. Because Norman could not pass to Linda what he did not acquire, Linda can
claim no greater interest in Patricia’s will than Norman. See id.

       Linda also argues that other courts have interpreted section 256.003(a) to
mean that the default of another does not preclude a non-defaulting applicant from
offering a will to probate as a muniment of title. See, e.g., In re Estate of Williams,
111 S.W.3d 259 (Tex. App.—Texarkana 2003, pet. denied); St. Mary’s Orphan
Asylum of Tex. v. Masterson, 122 S.W. 587 (Tex. Civ. App. 1909, writ ref’d).5 These
cases do not assist Linda. In Williams, the applicant was the son of the deceased
who was a beneficiary under the will, and he was found to have defaulted in
probating the will. 111 S.W.3d at 261–62. The grandchildren, also beneficiaries
under the will, argued that the son’s default did not preclude them from probating
the will. Id. at 263. The court of appeals held that although the grandchildren were
interested persons entitled to apply to have the will probated, they had not done so.
Id. The court did not address whether the son’s default would have precluded them
from probating the will had they applied.

       Masterson is also inapposite because, as Faris explains, the proponents of the
will in Masterson were purchasers from a devisee. Compare Masterson, 122 S.W.
at 590, with Faris, 138 S.W.2d at 832. Masterson holds that “a purchaser from a
devisee is a person entitled to have a will probated when the same constitutes an

       5
        We note that Masterson’s precedential value is not equal to that of Faris, even though the
supreme court refused the writ in both cases. Before 1927, refusing a writ signaled that the result
reached was correct but did not necessarily indicate approval of the court of appeals’ opinion or
reasoning. See Tex. St. Bd. of Med. Examiners v. Koepsel, 322 S.W.2d 609, 614 & n.6 (Tex. 1959).

                                                11
essential link in his title,” and this right “is not dependent on the existence of this
same right in their grantors, the devisees.” 122 S.W. at 590. In this case, Linda is
not a purchaser. Because Linda’s right to probate Patricia’s will is dependent on the
existence of that right in Norman, we must consider Norman’s conduct in
determining whether a default occurred.

      B.     Linda failed to raise a genuine issue of material fact that Norman
             was not in default for failing to probate Patricia’s will.
      Texas courts are quite willing to admit a will to probate as a muniment of title
after the four-year statute of limitations has expired if the applicant shows an excuse.
E.g., Poppe v. Poppe, No. 01–08–00021–CV, 2009 WL 566490, at *4 (Tex. App.—
Houston [1st Dist.] Mar. 5, 2009, no pet.) (mem. op.); Chovanec v. Chovanec, 881
S.W.2d 135, 137 (Tex. App.—Houston [1st Dist.] 1994, writ denied); Kamoos v.
Woodward, 570 S.W.2d 6, 8 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).
Whether an applicant was in default is a fact question. Poppe, 2009 WL 566490 at
*4; Chovanec, 881 S.W.2d at 137; Kamoos, 570 S.W.2d at 8. To survive summary
judgment, Linda had the burden to show a genuine issue of material fact that Norman
was not in default. Schindler, 119 S.W.3d at 929.

      In the trial court, Linda failed to present any summary judgment evidence
raising a genuine issue of material fact that Norman was not in default in failing to
probate Patricia’s will within the four-year limitations period. Linda showed only
that she found Patricia’s will when she was reviewing documents in Norman’s home,
and that she offered the will for probate as a muniment of title about one month later.
Linda did not address why Norman failed to probate Patricia’s will during the eight
years that elapsed between her death and his. Therefore, we overrule Linda’s first
issue and affirm the trial court’s order granting appellee’s motion for summary
judgment. Further, because Linda did not conclusively prove Norman was not in


                                          12
default in probating Patricia’s will, we overrule Linda’s second issue challenging the
trial court’s denial of her cross-motion for summary judgment.

                                   CONCLUSION

      Having overruled Linda’s issues on appeal, we affirm the trial court’s
judgment.




                                       /s/    J. Brett Busby
                                              Justice



Panel consists of Justices Christopher, Busby, and Jewell (Christopher, J.,
concurring) (Jewell, J., concurring).




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