
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-01-00682-CV





Cecelia B. Dorsey, Dependent Administrator of the Estate of Sally Lou Roberts, Appellant


v.


Estate of Levi Mathis (L.M.) Roberts, Deceased, Appellee





FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. 75,847, HONORABLE GUY S. HERMAN, JUDGE PRESIDING






	Appellant Cecelia B. Dorsey appeals the probate court's final judgment rendered
October 31, 2001, finding that Cathy Jo Roberts Jackson is the daughter of decedent Levi Mathis
Roberts and that her interest in his estate includes (1) all his community interest in real and personal
property; (2) all his separate real property subject to his spouse's, Sally Lou Roberts's, life estate in
one third; and (3) two thirds of his separate personal property.  In five issues, appellant contends that:
(1) the court erred by failing to find Cathy's (1) application barred by limitations; (2) there is
insufficient evidence to support the court's finding that Cathy complied with and met all matters of
proof required to support her application to determine heirship; (3) the court abused its discretion
by denying appellant's request that Cathy be fingerprinted; (4) there is insufficient evidence to
support the court's finding that Cathy is an adopted child; and (5) the judgment is void because it
is not supported by Cathy's application.  We will affirm the judgment of the probate court.

BACKGROUND
	On February 19, 1985, Levi died intestate in Travis County and was survived by his
second wife, Sally.  Levi and Sally did not have children.  At the time of his death, Levi owned real
and personal property of a probable value in excess of between $50,000 and $100,000. (2)  Levi was
previously married to Clara Louise Mackey, who died in 1967.  Levi and Clara had one biological
child who died shortly after birth, and they adopted Cathy, who was Clara's niece.  Levi and Sally
owned a home at the time of his death.  Apparently, Sally continued to live in or retain the home
until her death in February 2001.
	On March 13, 1985, Gertrude Shaw filed an affidavit of heirship ("the Shaw
affidavit") in the Travis County Deed Records stating that (1) one child was born to Levi and Clara
and that this child's death occurred shortly after birth, (2) no other child was born to or adopted by
Levi and Clara, and (3) no child was born to or adopted by Levi and Sally during their marriage. 
	On July 5, 2001, Cathy filed an application to determine heirship, claiming to own
one half of Levi's community property and all of his separate property.  In her application, Cathy
alleged that Levi owned the following property at the time of his death: "One half (½) Community
Property interest in Decedent's homestead, 1706 East 32nd Street, Austin, Texas 78724.  One half
(½) Community property interest in cash, insurance proceeds, household goods, and personal effects. 
100% of Decedent's separate property."  On August 23, Cecelia Dorsey, Sally's sister and the
dependent administrator of her estate, filed an answer generally denying Cathy's allegations and
pleading the affirmative defense of limitations.  Cecelia contended that Cathy's claim was barred
because it had been sixteen years since Levi's death and the filing of the Shaw affidavit in the real
property records of Travis County.
	On September 12, 2001, Cecelia filed an amended answer requesting the court to
require Cathy to prove the allegations in her application by sufficient evidence, including
fingerprinting, in light of her criminal history.  On October 17, the probate court held a hearing on
Cathy's application to declare heirship.  On October 31, the probate court rendered a judgment
declaring that Cathy was Levi's daughter and awarding her the following interest in his estate: (1)
"All of Decedent's community interest in real and personal property"; (2) "All of Decedent's
separate real property subject to Sally Lou Roberts' [sic] estate for life in 1/3"; and (3) "2/3 of
Decedent's separate personal property."  Cecelia appeals the judgment.

DISCUSSION
Statute of Limitations
	In her first issue, Cecelia contends that the probate court erred as a matter of law by
failing to find Cathy's claim barred by limitations.  Cecelia argues that "the evidence conclusively
established all vital facts in support of the statute of limitations barring this Application to Declare
Heirship."  
	Cecelia contends that because the probate code does not specify a limitations period
for Cathy's application to determine heirship, the four-year residual limitations period of section
16.051 of the Texas Civil Practice and Remedies Code applies: "Every action for which there is no
express limitations period, except an action for the recovery of real property, must be brought not
later than four years after the day the cause of action accrues."  Tex. Civ. Prac. & Rem. Code Ann.
§ 16.051 (West 1997).  Cathy responds that section 16.051 expressly excludes "an action for the
recovery of real property," and therefore the residual limitations period does not apply to her cause
of action.  See York v. Flowers, 872 S.W.2d 13, 16 (Tex. App.--San Antonio 1994, writ denied). 
	Cathy brought this suit to assert her challenged interest in Levi's estate.  The record
does not reflect an inventory of Levi's personalty; (3) Cecelia asserts in her appellate brief that
"[d]etermining which personalty belonged to Decedent is next to impossible."  At oral argument, the
parties were unable to say what, if any, personalty remains.  Levi's residence was his primary asset. 
Therefore, Cathy's main incentive in asserting her heirship clearly is to establish her interest in
Levi's homestead at 1706 East 32nd Street in Austin.  "That she also needed to establish her
prerequisite heirship status does not detract from or change the nature of the suit from one for the
recovery of real property."  Id.  Accordingly, the four-year statute of limitation does not bar Cathy's
claim.  See id.
 Cecelia argues that the Texas Supreme Court has previously decided this issue in her
favor: "The Supreme Court concluded in Little that they recognized that adopted children have
inheritance rights, but the legislative determinations in several arenas dictate that claims for
inheritance must be asserted within the statutory limitations periods."  See Little v. Smith, 943
S.W.2d 414, 423 (Tex. 1997).  In that case, Smith was adopted shortly after her birth in 1932.  Id.
at 415.  Many years later, she began searching for information about her biological parents when her
son was diagnosed with a tumor.  Id.  In 1989, Smith discovered that Thelma Little, her biological
mother, had predeceased her, and that Lula Little, Smith's biological grandmother, had died in 1982,
leaving a will that possibly entitled Smith to inherit a portion of the estate.  Id. at 416.  In 1991, she
brought an action demanding an interest in the assets of the estate.  Id.  The supreme court framed
the issue as a determination of the discovery rule's application: "We must determine whether the
discovery rule should apply in cases of this nature to extend, perhaps for decades, the period of time
within which adoptees may bring suit to assert rights of inheritance."  Id. at 417.  
	The supreme court's discussion in Little of the discovery rule's application is
inapplicable to the present case.  See York, 872 S.W.2d at 16.  Further, the policy considerations
outlined in Little do not require the same result in this case: "There are competing interests under
various Texas statutes at issue in this case: (1) the right of adoptees to inherit from or through their
natural parents, (2) the confidentiality of the identities of birth parents and their families, and (3) the
need for finality of probate proceedings."  Little, 943 S.W.2d at 417.  None of those considerations
applies here.  In Little, an adoptee attempted to establish her right to inherit from her biological
grandmother; Cathy seeks to inherit from her adopted father who reared her.  The legislature's
articulated interest in protecting the confidentiality of the identities of birth parents and their
families--the dispositive policy consideration in Little--is not a factor in the present case.  See id.
at 419-20.
	Cecelia further contends that Cantu v. Sarpenter, 937 S.W.2d 550 (Tex. App.--San
Antonio 1996, writ denied), compels a different result in this case.  Cantu involved a scenario in
which the decedent's widow conveyed a tract of land, previously owned by her husband, to the
Whites in 1986, receiving valuable consideration in return.  937 S.W.2d at 551-52.  In 1991 and
1993, decedent's illegitimate children sought to establish their rights to inherit from decedent's
estate, including the land deeded to the Whites.  Id. at 552.  The court of appeals balanced appellees'
right to establish heirship with the State's interest in the orderly administration of estates and the
validity of property ownership.  Id.  The court held that appellees' claims were barred because "[i]n
weighing the state's interest in protecting clear title and preserving the effective administration of
estates, we find that there must be some limits put on those making an heirship claim."  Id. at 553. 
	In Cantu, the apparently good faith sale of the estate created a property interest in the
Whites, 937 S.W.2d at 552-52; the record in the present case does not reflect that any part of the real
or personal property has been conveyed so as to create a property interest in a third party.  Further,
the record reflects that there has been no administration of Levi's estate.  Therefore, the policy
considerations underlying the court of appeals's decision in Cantu do not apply to the present case. 
See id.
	Both Little and Cantu are distinguishable from this case.  Little involves the policy
consideration of protecting the confidentiality of the identities of birth parents and their families.
Cantu involves a situation in which a child born out of wedlock must first establish a relationship
with the decedent in order to prove a right to heirship.  In this case, Cathy had only to show that she
had a legally established relationship which Levi's heirs disputed after Sally's death.  As Levi's
surviving spouse, Sally had a homestead right in their property.  Until Sally's death, Cathy had no
need to assert her legal interest.  
	We believe that the present case is more closely analogous to York.  See 872 S.W.2d
at 13.  In that case, appellant brought suit to establish that she was the daughter of the decedent and
therefore entitled to inherit her father's interest in a 41.5-acre tract.  Id. at 14.  Appellee moved for
summary judgment on three grounds, one of which was that appellant's claim was barred by
limitations.  Id.  The court of appeals concluded that because appellant's action was for the recovery
of real property, the four-year residual limitations period of Texas Civil Practice and Remedies Code
section 16.051 did not bar her claim.  Id. at 16.  Similarly, because the nature of Cathy's claim is for
the recovery of real property, Cecelia's first issue is overruled.

Application to Determine Heirship
	In her second issue, Cecelia challenges the legal and factual sufficiency of the
evidence to support the probate court's finding that Cathy "complied with and met all matters and
proof required to support her Application to Determine Heirship."  We attach to findings of fact the
same weight that we attach to a jury's verdict upon jury questions.  Lawyers Surety Corp. v. Larson,
869 S.W.2d 649, 653 (Tex. App.--Austin 1994, writ denied).  Findings of fact are reviewed for legal
and factual sufficiency of the evidence by the same standards used to review jury findings.  Westech
Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 195 (Tex. App.--Austin 1992, no
writ).
 In a legal sufficiency review, we consider all the evidence in the light most favorable
to the prevailing party, indulging every reasonable inference in that party's favor.  Associated Indem.
Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998); Transportation Ins. Co. v.
Moriel, 879 S.W.2d 10, 25 (Tex. 1994); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.
1990).  We will uphold the finding if more than a scintilla of evidence supports it.  Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); Seideneck v. Cal Bayreuther Assocs., 451
S.W.2d 752, 755 (Tex. 1970); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951).  The evidence
supporting a finding amounts to more than a scintilla if reasonable minds could arrive at the finding
given the facts proved in the particular case.  Crye, 907 S.W.2d at 499; Moriel, 879 S.W.2d at 25. 
When reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence
and should set aside the judgment only if the evidence is so weak or so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).  
	Cecelia contends that the Shaw affidavit "which has been on record in Travis County
for sixteen years constitutes prima facie evidence that [Cathy] was not born to or adopted by the
marriage of [Levi] and Clara Louise (Mackey) Roberts."  In support of this contention, Cecelia cites
section 52 of the probate code:

A statement of facts concerning the family history, genealogy, marital status, or the
identity of the heirs of a decedent shall be received in a proceeding to declare
heirship . . . as prima facie evidence of the facts therein stated, if the statement is
contained in . . . an affidavit . . . , and if the affidavit . . . has been of record for five
years or more in the deed records of any county in this state in which such real or
personal property is located at the time the suit is instituted . . . .


Tex. Prob. Code Ann. § 52(a) (West Supp. 2002).  Cecelia argues that the Shaw affidavit created a
presumption that Cathy is not the child of Levi.  She further contends that Cathy's contradictory
pleadings and proof were insufficient to rebut that presumption.  Cecelia emphasizes that while
Cathy's application alleges that she was "born to" Levi's first marriage, the evidence presented at
the hearing on her application indicates that she was adopted.  
	Cathy responds that whether she was born to or adopted by Levi is irrelevant to the
judgment rendered.  We agree.  Section 40 of the probate code provides that an adopted child shall
inherit from adoptive parents as if he or she were a natural child:

For purposes of inheritance under the laws of descent and distribution, an adopted
child shall be regarded as the child of the parent or parents by adoption, such adopted
child and its descendants inheriting from and through the parent or parents by
adoption and their kin the same as if such child were the natural child of such parent
or parents by adoption . . . .


Tex. Prob. Code Ann. § 40 (West Supp. 2002).  Because the probate code clearly treats adopted
children as natural children for purposes of inheritance, we hold that Cathy's statement in her
application that she was "born to" Levi's first marriage does not contradict or undermine the
evidence presented at the hearing that she was adopted.  The issue to be proven was whether she was
his child.
	The Shaw affidavit constituted prima facie evidence, subject to rebuttal.  At the
hearing on Cathy's application, Cathy introduced her birth certificate reflecting Levi and Clara as
her parents.  Cora Robinson, Cathy's biological mother, unequivocally testified that she gave Cathy
up for adoption and that Levi and Clara, Cora's sister, legally adopted Cathy.  In light of this
uncontradicted testimony, we hold that reasonable minds could arrive at the finding that Cathy fully
complied with and met all matters and proof required to support her application.  Further, we cannot
say that the evidence to support the probate court's finding is so weak or so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.  Accordingly, Cecelia's
second issue is overruled.

Fingerprinting
	In her third issue, Cecelia contends that the probate court abused its discretion by
denying her request that Cathy be fingerprinted in order to be certain of her identity. (4) A trial court
abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to 



any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).
	In her first amended answer, Cecelia requested 

the Court to require [Cathy] to prove such allegations by sufficient evidence
including fingerprinting to prove positively that [Cathy] is indeed who she claims to
be considering the records (which are attached as Exhibit A to this First Amended
Answer and fully incorporated herein by reference) which show that Cathy Jo
(Roberts) Jackson is an alias of Gladys Lovone Thomas, a person that has two
forgery convictions and ten other convictions.


At the hearing on Cathy's application, Cecelia again requested that Cathy be fingerprinted.  The
court responded that her identity had been certified by the Department of Public Safety:

Counselor, I'm a little confused by that statement.  Because what I see on the very
first page of the Department of Public Safety certification is that Texas DPS No.
01968136, and then to the side of that is Jackson, Cathy Jo, also known as Cathy
Roberts, DOB, 6-4-55.  And what they're certifying this is her, Cathy Jo Jackson
A/K/A Roberts' criminal record . . . .  And I do understand that you--the very first
thing that was asked was for a query on Cathy Jo Jackson.  And they came
back--there is no--and with sex, female, race, all races, and they come back and say
there is no identification records that match that.  And then they go down a little bit
further on the same page--I'm on Page 2 of their packet.  They do mention a Cathy
Jo--Cathy Jo Jackson, black female, 5', 4", 159, black hair and with the number
01968136 . . . .  But--and all these aliases--and they do list Gladys Lavone Thomas,
which I don't dispute that that's one of her aliases.  But, you know, according to the
DPS this is the record of this Cathy Jo Jackson or--excuse me--Cathy Jo Jackson
also known as Roberts, Cathy.  Anyway, it's what it is, it's what it says it is.  And
your interpretation of it varies a little bit from mine.  I think it's--the person that's
in jail is this person, and I think she's Cathy Roberts or Cathy Jo Jackson.


In light of the court's reliance on Cathy's identification as certified by the Department of Public
Safety, we cannot say that he acted in an unreasonable and arbitrary manner, or without reference
to any guiding rules or principles. (5)  Because Cecelia has failed to show that the court abused its
discretion by denying her request to have Cathy fingerprinted, her third issue is overruled.

Sufficiency of the Evidence
	In her fourth issue, Cecelia contends that the evidence is both legally and factually
insufficient to support the probate court's judgment that Cathy is Levi's adopted child.  In support
of this contention, Cecelia argues that the testimony presented at the hearing on Cathy's application
is clearly counter to the finding that Cathy was adopted by Levi.  Cecelia also emphasizes that
Cathy's birth certificate states that Levi is her father and Clara is her mother.
	In light of the legal and factual sufficiency standards set out above, the record reflects
both legally and factually sufficient evidence to support the probate court's finding that Cathy is
Levi's child.  Cora Lee Mackey Robinson, Cathy's biological mother, testified that she gave Cathy
up for adoption to Levi and Clara.  Cathy presented a birth certificate listing Levi and Clara as
parents. (6)  Contrary to Cecelia's contention, Cathy's birth certificate constitutes evidence that she is
Levi's child.  Because the evidence is both legally and factually sufficient to support the probate
court's judgment that Cathy is Levi's adopted child, Cecelia's fourth issue is overruled.
Void Judgment
	In her fifth and final issue, Cecelia contends that the court's "finding that [Cathy] was
adopted, when she plead [sic] that she was born to is void as a mater of law."  This issue is a
restatement of Cecelia's second issue, and we held that because the probate code regards adopted
children as natural children for purposes of inheritance, Cathy's statement in her application that she
was "born to" Levi's first marriage is not contradicted by the evidence that she was adopted by Levi. 
Accordingly, her fifth issue is overruled.

CONCLUSION
	We overrule all of Cecelia's complaints on appeal.  We therefore affirm the judgment
of the probate court.

 					Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Affirmed
Filed:   July 26, 2002
Do Not Publish
1.   	For the sake of clarity, we will use the parties' first names.
2.   	Gertrude Shaw's affidavit estimates the property's value as less than $50,000 at the time
of Levi's death.  Cathy's application to determine heirship estimates the property's value as in excess
of $100,000. 
3.   	The only reference we can find to any of Levi's personalty is the testimony of Pat Reed 
in the reporter's record of the October 17, 2001, hearing on Cathy's application to determine
heirship:

	Q:	Was there personalty that belonged to [Levi] at the time his first wife died,
any personal items or furnishings that you were aware of?

	A:	The only thing I remember standing out in my mind, visiting his church office
there at First Baptist, were his biblical commentaries.  They were giant books. 
I was just a little girl and I was overwhelmed with the size of them.  And later
on, you know, they still resided in the home.

This solitary reference to Levi's commentaries and Cathy's general statement in her application that
Levi owned "[o]ne half (½) Community property interest in cash, insurance proceeds, household
goods and personal effects" do not change the nature of her suit from one for the recovery of real
property.  The record and counsel's statements during oral argument clearly reflect that the parties'
main concern is the 1706 East 32nd Street property.
4.   	Cathy contends that Cecelia has failed to preserve this error for appeal by failing to specify
the grounds for and obtain a ruling on her request.  See Tex. R. App. P. 33.1(a).  The record reflects
that Cecelia made this request both in her first amended answer and at the hearing on Cathy's
application and that the court was aware of the grounds for the request.  Although he did not
expressly rule on her request, we will address the merits of Cecelia's complaint.
5.   	Further, appellant's complaint is somewhat circular.  Assuming Cathy were fingerprinted,
Cecelia does not say to what evidence the fingerprints could be matched other than the DPS records,
or what that would prove.  She appears to suggest that the DPS records show that Cathy Jo (Roberts)
Jackson is an alias of Gladys Lavone Thomas, and that Cathy did not present evidence that she is
Cathy Jo (Roberts) Jackson and not Gladys Lavone Thomas.  We fail to see what Cathy's
fingerprints would prove.  Cathy does not dispute that she is the person with the criminal record, and
the court so found.
6.   	As a matter of course, following adoption Texas issues a new birth certificate on request
listing the adoptive parents' names.  See Tex. Fam. Code Ann. § 108.009 (West Supp. 2002).
