                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-14-00197-CV
                             ____________________

            IN THE ESTATE OF JOYCE SIMPSON BURRIS
_________________________________       ______________________

               On Appeal from the County Court at Law
                         Polk County, Texas
                       Trial Cause No. 08346-A
____________________________________________                        ____________

                          MEMORANDUM OPINION

      Joe Burris, III (“Joe”), the son of Joyce Simpson Burris (“Joyce”), sued

James Randall Burris (“James”), Joyce’s other son, attorney in fact and the

independent executor of her estate, for breach of fiduciary duty, money had and

received, conversion, declaratory judgment, and constructive fraud. James filed a

motion for partial summary judgment on grounds that Joe’s declaratory judgment

claim failed as a matter of law and is barred by the statute of limitations. James

also filed a motion to sever Joe’s declaratory judgment claim, which the trial court

granted. The trial court granted James’s summary judgment motion and rendered



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judgment in favor of James. In a single appellate issue, Joe challenges the trial

court’s summary judgment ruling. We affirm the trial court’s judgment.

                                    Background

      Joseph Burris, Jr. (“Joseph”) died in 2000, leaving a will that named Joyce

as his sole heir. Michael Burris (“Michael”), individually, and Janet Palmer

(“Janet”), individually and as executor of Joseph’s estate, subsequently sued James

and Joyce to establish ownership of a 23.43-acre tract of land and seeking partition

of the property. The property was ordered to be sold and James was given a right

of first refusal. Joyce deeded her interest to James in 2001. James purchased

Janet’s interest in 2001 and Michael’s interest in 2002. According to James, Janet

knew that Joyce had previously conveyed her interest to James. In his affidavit,

James stated the property is fenced with a locked gate, no other party has access to

the property, he has had the “sole and exclusive use and enjoyment of the land and

improvements thereon since February of 2002[,]” and he has paid taxes on the

property since 2002.

      In June 2010, Joe filed a notice of lis pendens on the property. In his

petition, Joe argued that (1) the property was Joseph’s separate property, (2) at the

time of Joseph’s death, the property became an asset of his estate, and (3) Joyce

lacked an ownership interest in the property when she conveyed the property to

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James. Joe sought a declaration that Joyce’s deed to James was void on grounds

that she lacked legal title to the land and James failed to pay the requisite

consideration.

      In his motion for summary judgment, James argued that when Joseph died,

title to the property vested in Joyce, Joseph’s sole beneficiary. According to James,

Joyce was the equitable owner of all estate property at the time of Joseph’s death

and that, at the time of the partition judgment, Joyce owned an equitable 2/5th

interest in the property, which she could transfer to James. James further argued

that “consideration is not necessary to the validity of a deed conveying Texas

land.” Finally, James contended that he adversely possessed the property and that

Joe filed his lawsuit outside the applicable statute of limitations. In the order

granting summary judgment, the trial court denied Joe’s declaratory judgment

claim seeking to declare the deed from Joyce to James void.

                                   Capacity to Sue

      We first address James’s contention that Joe lacks standing to bring this

appeal. “Certain individuals are afforded the capacity to bring a claim on an

estate’s behalf.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 850 (Tex.

2005). The Texas Supreme Court has recognized circumstances under which an

heir may be entitled to sue on behalf of a decedent’s estate. Id.

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      Whether an heir may sue on behalf of the estate is a question of capacity to

sue, not a question of standing. Id. at 851 n.3; Smith v. McDaniel, No. 12-12-

00165-CV, 2013 Tex. App. LEXIS 11769, at **6-7 (Tex. App.—Tyler Sept. 18,

2013, no pet.) (mem. op.). Unlike standing, which may be raised at any time, a

challenge to a party’s capacity to sue must be raised by a verified pleading in the

trial court. Lovato, 171 S.W.3d at 849; Tex. R. Civ. P. 93(1)-(2). The record does

not indicate that James filed a verified denial challenging Joe’s capacity to sue, nor

does the record indicate that James otherwise presented the issue to the trial court.

Accordingly, James failed to preserve for appeal any complaint challenging Joe’s

capacity to sue. See Smith, 2013 Tex. App. LEXIS 11769, at *7.

                                Summary Judgment

      We review a trial court’s ruling on a traditional summary judgment motion

de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003). We “must consider whether reasonable and fair-minded jurors could differ

in their conclusions in light of all of the evidence presented.” Goodyear Tire &

Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). We view the

evidence in the light most favorable to the nonmovant, indulge every reasonable

inference in favor of the nonmovant, and resolve any doubts against the motion. Id.

at 756. When, as in this case, the trial court grants summary judgment on a specific

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ground, the judgment can only be affirmed if that ground is meritorious. Denton

Cent. Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 264 (Tex. App.—

Fort Worth 2003, pet. denied).

      We first address Joe’s contention that the deed was void because, according

to Joe, Joyce merely held an equitable interest in the property and could not convey

legal title to James. Upon a person’s death, title to the decedent’s property vests

immediately in the decedent’s heirs or devisees. Armes v. Thompson, 222 S.W.3d

79, 83 (Tex. App.—Eastland 2006, no pet.); see Act of June 1, 1981, 67th Leg.,

R.S., ch. 674 §3, 1981 Tex. Gen. Laws 2536, 2537 (repealed 2009) (current

version at Tex. Est. Code Ann. § 101.001(a) (West 2014)). The heir’s title,

however, is “subject to the decedent’s debts; and the personal representative retains

legal title, possession, and control for the purpose of administering the estate.”

Armes, 222 S.W.3d at 83; see Act of June 1, 1981, 67th Leg., R.S., ch. 674 §3,

1981 Tex. Gen. Laws 2536, 2537 (repealed 2009) (current version at Tex. Est.

Code Ann. § 101.051(a) (West 2014)). “Until the administrator pays all debts owed

by the estate and distributes the property, the beneficiaries do not actually hold

legal title to the property.” Woodward v. Jaster, 933 S.W.2d 777, 781 (Tex.

App.—Austin 1996, no pet.). Accordingly, equitable title to the property vested in

Joyce immediately upon Joseph’s death and Janet, the executor of Joseph’s estate,

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retained legal title to the property. See Armes, 222 S.W.3d at 83; see also

Woodward, 933 S.W.2d at 781; 1981 Tex. Gen. Laws 2536, 2537.

      “A deed is void when it is executed by a person wholly without authority to

do so.” Citizens State Bank v. Caney Invs., 733 S.W.2d 581, 586 (Tex. App.—

Houston [1st Dist.] 1987), rev’d on other grounds by 746 S.W.2d 477 (Tex. 1988).

“[A]n equitable title is an enforceable right to have legal title transferred to the

holder of the equity.” Neeley v. Intercity Mgmt. Corp., 623 S.W.2d 942, 950-51

(Tex. App.—Houston [1st Dist.] 1981, no pet.). Under the law applicable to this

case, the Texas Probate Code provided, in pertinent part, that:

      A person entitled to receive property or an interest in property from a
      decedent under a will . . . and who does not disclaim the property . . .
      may assign the property or interest in property to any person.

Act of May 17, 1985, 69th Leg., R.S., ch. 880, 1985 Tex. Gen. Laws 3003

(repealed 2009) (current version at Tex. Est. Code Ann. § 122.201 (West 2014)).

Thus, “a beneficiary can designate recipients of the property.” Ritter v. Till, 230

S.W.3d 197, 202 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Accordingly, as

a person entitled to receive property or an interest in property under Joseph’s will,

Joyce was not wholly without authority to convey her interest to James.

      We next address Joe’s argument that the deed is void because James did not

pay the required purchase price. The partition judgment gave a 1/5th interest each

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to Michael, Janet, and James and 2/5th to Joyce. The judgment gave James the

option to purchase the property for $395,000, which valued each fifth at $79,000.

On appeal, Joe maintains that James was required to pay Joyce $158,000 for her

2/5th interest in the property, but that he failed to do so. However, a mere lack of

consideration is insufficient to void an executed deed. Silvio v. Boggan, No. 01-10-

00081-CV, 2012 Tex. App. LEXIS 1326, at *8 (Tex. App.—Houston [1st Dist.]

Feb. 16, 2012, pet. denied) (mem. op.); Uriarte v. Petro, 606 S.W.2d 22, 24 (Tex.

Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). “Lack of consideration

does not prevent a deed from conveying title[.]” Bovey v. Coffey, No. 09-11-

00445-CV, 2012 Tex. App. LEXIS 3247, at *10 (Tex. App.—Beaumont Apr. 26,

2012, no pet.) (mem. op.). Accordingly, we conclude that the trial court properly

refused to declare the deed void and properly granted James’s motion for summary

judgment. See Denton Cent. Appraisal Dist., 115 S.W.3d at 264. We overrule Joe’s

sole issue and affirm the trial court’s summary judgment order denying Joe’s

declaratory judgment claim.

      AFFIRMED.
                                             ________________________________
                                                    STEVE McKEITHEN
                                                         Chief Justice
Submitted on December 3, 2014
Opinion Delivered January 15, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.
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