                                                                 WITHDRAWN 11/3/10
                                                                    REISSUED 11/3/10
                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00215-CV

         IN THE ESTATE OF HELEN D. WALLACE, DECEASED


                      From the County Court at Law No. 1
                            Johnson County, Texas
                          Trial Court No. P200819721


                          MEMORANDUM OPINION


      Theresa Isenberger and Mary Moriset appeal the dismissal of their petition for

construction of the will of Helen Wallace, their sister. The will of Helen Wallace was

offered and admitted to probate in the county court at law of Johnson County, Texas.

Shortly thereafter, Isenberger and Moriset filed their petition for the trial court to

determine, in part, whether a trust was created by the terms of the will.            The

independent executor, Robert Semple, and the Office of the Attorney General filed a

joint plea to the jurisdiction asking the trial court to dismiss the petition for lack of

jurisdiction on the basis that the county court at law did not have jurisdiction over the

cause of action because it related to a trust, over which only the district court had

jurisdiction. Isenberger and Moriset complain that the trial court erred by granting the
plea to the jurisdiction because the question presented in their petition was to construe

the terms of the will, over which the county court at law would have jurisdiction. 1

Because we find that the trial court erred by granting the plea to the jurisdiction and

dismissing this cause of action, we reverse the judgment of the trial court and remand

this cause for further proceedings.

Relevant Statutes

        Because this case was filed prior to the effective date of the 2009 amendments to

the Probate Code, we must address the statutes in effect at the time of the filing of this

action, which now have largely been repealed. The county court at law of Johnson

County exercised original probate jurisdiction over this matter pursuant to section 5(c).

TEX. PROB. CODE ANN. § 5(c), repealed by Acts 2009, 81st Leg., ch. 1351, § 12(h), effective

September 1, 2009. Probate Code Section 5(f) gave courts exercising original probate

jurisdiction the power to hear “all matters incident to an estate.” TEX. PROB. CODE ANN.

§ 5(f), repealed by Acts 2009, 81st Leg., ch. 1351, § 12(h), effective September 1, 2009.

Section 5A(a) defined what constitutes “appertaining to estates” and “incident to an

estate” for statutory county courts at law, and includes actions to construe wills as well

as “generally all matters relating to the settlement, partition, and distribution of estates

of deceased persons.” TEX. PROB. CODE ANN. § 5A(a), repealed by Acts 2009, 81st Leg., ch.

1351, § 12(h), effective September 1, 2009. Isenberger and Moriset contend that their



1Recently, the Legislature amended the Probate Code to include section 4B(b)(2), which gives the county
court at law jurisdiction over issues regarding testamentary trusts; however, this provision did not
become effective until September 1, 2009. Actions pending before that date, such as this one, are not
affected by the amendment.

In the Estate of Wallace                                                                        Page 2
action was for the purpose of construing the will of Helen Wallace, which is within the

grant of jurisdiction pursuant to section 5A(a).

        However, Semple and the Attorney General contend that section 5(c), which

gave the statutory county courts at law jurisdiction in probate matters when there was

no statutory probate court, was limited by the phrase “unless otherwise provided by

law.” TEX. PROB. CODE ANN. § 5(c), repealed by Acts 2009, 81st Leg., ch. 1351, § 12(h),

effective September 1, 2009. They contend that the provisions in the property code

relating to trusts fall within that exception.

        Property Code Section 115.001 gives the district court exclusive and original

jurisdiction over “all proceedings concerning trusts,” and follows with a non-exclusive

list of included proceedings. TEX. PROP. CODE ANN. § 115.001 (Vernon 2007). This list

does not include whether or not a trust has been formed, and more specifically, does

not include whether an alleged trust was formed by the terms of a will and whether that

trust, if created, is a beneficiary of the will.

Analysis

        The issue to be determined is whether an action filed to determine whether

certain language contained in a will creates a trust and designated it as a beneficiary is

“incident to an estate” or a “proceeding concerning trusts” for purposes of determining

which court has jurisdiction to make that ultimate determination based on the statutes

in effect at that time. We hold that this determination is one that is “incident to an

estate” for purposes of establishing subject matter jurisdiction. Within the four corners

of a will, the trial court must determine the intent of the testator and how the estate is to

In the Estate of Wallace                                                               Page 3
be distributed. We believe that this determination must include the identities of the

beneficiaries, which in this case, would require the trial court to determine whether or

not a trust was properly created by that document. See generally, Marsh v. Frost National

Bank, 129 S.W.3d 174 (Tex. App.—Corpus Christi, 2004, pet. denied) (county court at

law determined that charitable trust was created by a will through a declaratory

judgment action to construe the will). We find that it was therefore erroneous for the

trial court to grant the plea to the jurisdiction with no determination regarding the issue

of whether or not a valid trust was created by Wallace’s will and if the trust, if any, was

a designated beneficiary of the will. We sustain issue one.

Conclusion

        We find that the issue of whether or not a valid trust was created by Wallace’s

will and whether the trust, if created, was a properly designated beneficiary of the will

must be determined by the county court at law and that the trial court erroneously

granted the plea to the jurisdiction dismissing the claims of Isenberger and Moriset. We

reverse the judgment of the trial court and remand this cause to the trial court for

further proceedings.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Reversed and remanded
Opinion delivered and filed June 16, 2010
[CV06]

In the Estate of Wallace                                                             Page 4
