                                  NO. 12-15-00246-CV

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

IN THE MATTER OF THE ESTATE                      §       APPEAL FROM THE

OF WILLIE SUE HAMMACK,                           §       COUNTY COURT AT LAW

DECEASED                                         §       NACOGDOCHES COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Larry Gene Marsh, Billie Marie Buckley, Deborah Sue Stuart, and Terry Lyn Marsh
appeal the trial court’s order admitting to probate the will of Willie Sue Hammack as a muniment
of title eight years after her death. Appellants contend the evidence is legally and factually
insufficient to support the trial court’s finding that Morrison Hammack, Jr. was not in default in
failing to present the will for probate within four years of the death of the decedent. We affirm.


                                          BACKGROUND
       Willie Sue Hammack died on July 2, 2006, in Nacogdoches County.                    Morrison
Hammack, Jr. was the husband of Willie Sue Hammack at the time of her death. Willie Sue
Hammack left a will naming Morrison Hammack, Jr. as independent executor. Generally, in her
will she gave her separate property to her children of a prior marriage. The residue of her estate
she gave to her husband.
       Morrison Hammack, Jr. knew of the will and its contents. After his wife’s death, he
consulted with no one regarding her will. He did not know it was necessary that he offer the will
for probate. He testified that at her death, he did not have the money to probate the will.
       Two years before her death, Willie Sue Hammack suffered a serious stroke. She required
nursing home care the last two years of her life. After making her will in 2006, she transferred
her separate property mentioned in the will to her four children of her prior marriage. Therefore,
all the property in her estate was community property. Her estate consisted of her community
one-half interest in a three bedroom, two bath, brick veneer residence, a 1998 Honda Civic, and a
pickup truck.
       Morrison Hammack, Jr. first became aware of the necessity of probating his wife’s will in
May 2014 when he attempted to sell the house. He retained counsel and filed an application for
probate of her will as a muniment of title on July 17, 2014. Appellants contested the application.
They alleged that more than four years had passed since their mother’s death and no good cause
existed for Morrison Hammack, Jr.’s failure to file his application to probate her will within four
years after her death.
       Terry Lyn Marsh, one of Willie Sue Hammack’s children of her prior marriage and one
of the contestants, testified that, before her stroke, Willie Sue had $36,000.00 in a separate
brokerage account. He thought that Morrison Hammack, Jr. had an account worth somewhere
“in the 20s” at that time. There was no evidence of money in brokerage or bank accounts at the
time Willie Sue Hammack died. After hearing all of the evidence, the trial court admitted the
will to probate as a muniment of title.


                                 SUFFICIENCY OF THE EVIDENCE
       In three issues, Appellants challenge the legal and factual sufficiency of the evidence to
support the trial court’s finding that Morrison Hammack, Jr. was not in default for failing to
present the will for probate within four years after their mother’s death.       They argue that
Morrison Hammack, Jr. has shown no reasonable excuse that would serve to avoid default. They
maintain that ignorance of the statute’s requirements, standing alone, is no excuse. And they
dismiss Morrison Hammack, Jr.’s allegation of insufficient resources to afford probate as
unsupported by the evidence.
Standard of Review
       A trial court’s findings of fact, express or implied, are reviewable for legal and factual
sufficiency by the same standards applied in reviewing the sufficiency of the evidence
supporting a jury’s finding. See Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.
App.—Waco 1997, pet. denied). The trial court’s conclusions of law, express or implied, are
reviewed de novo. See Benedictine Sisters of the Good Shepherd v. Ellison, 956 S.W.2d 629,
631 (Tex. App.—San Antonio 1997, pet. denied).




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       An appellate court conducting a legal sufficiency review considers the evidence in the
light most favorable to the verdict, indulging every inference that would support it. City of
Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). A party attacking the legal sufficiency of
the evidence to support an adverse finding on an issue for which it did not have the burden of
proof at trial must show that no evidence supports the adverse finding. Exxon Corp. v. Emerald
Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). The appellate court must credit
favorable evidence if a reasonable fact finder could, and disregard contrary evidence unless a
reasonable fact finder could not. City of Keller, 168 S.W.3d at 807. A “no evidence” challenge
must be sustained when (1) the record discloses a complete absence of a vital fact, (2) the court
is barred by the rules of law and evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4)
the evidence conclusively establishes the opposite of a vital fact. Id. at 810.
       An appellate court reviews the factual sufficiency of the evidence supporting a finding by
considering and weighing all the evidence in a neutral light. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986). The reviewing court will set aside the verdict only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Id. However, the
reviewing court is not a fact finder, and it may not pass on the credibility of the witnesses or
substitute its judgment for that of the trier of fact, even if a different answer could be reached on
the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
Applicable Law
       Section 256.003 of the Texas Estates Code provides in pertinent part that “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. 2015). As used in this statute, “default” means “failure to probate a
will due to the absence of reasonable diligence on the part of the party offering the instrument.”
See Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, pet. denied)
(construing predecessor to section 256.003). “A person having custody of a will is charged with
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 to him or not.” In re Estate of Rothrock, 312
S.W.3d 271, 274 (Tex. App.—Tyler 2010, no pet.) (citing St. Mary’s Orphan Asylum of Tex. v.



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Masterson, 57 Tex. Civ. App. 646, 654, 122 S.W. 587, 591 (Tex. Civ. App.—San Antonio 1909,
writ ref’d)). The burden is on the proponent to show that he was not in default in failing to
present a will for probate within the proper time. Rothrock, 312 S.W.3d at 274. Whether the
party applying for probate is in default is ordinarily a question of fact for the trial court. Kamoos
v. Woodward, 570 S.W.2d 6, 8 (Tex. Civ. App.—San Antonio 1978, writ ref’d n.r.e.).
       The language of the predecessor to Section 253.006(a)–former Texas Probate Code
section 73(a)–was added to the Revised Civil Statutes in 1879 and has been but slightly changed.
See In re Estate of Campbell, 343 S.W.3d 899, 902 (Tex. App.—Amarillo 2011, no pet.). The
repeal of the Texas Probate Code and its recodification in the Texas Estates Code resulted in no
substantive change. See TEX. EST. CODE ANN. § 21.001 (West 2014). The compelling reasons
underlying the statute are discussed in Estate of Rothrock, 312 S.W.3d at 274. Mere ignorance
of the law cannot excuse failure to comply with the statute. See Brown v. Byrd, 512 S.W.2d 753,
757 (Tex. Civ. App.—Tyler 1974, no writ). To hold otherwise would render the section a nullity
and frustrate the practical purposes it serves. See id. Mere personal considerations or the
assumption that one’s title to property is safe without probate does not excuse a failure to present
a will within the statutory period. Rothrock, 312 S.W.3d at 274.
       Nevertheless, Texas courts have been quite liberal in admitting a will to probate as a
muniment of title after the four year limitation period has expired. In re Estate of Allen, 407
S.W.3d 335, 339 (Tex. App.—Eastland 2013, no pet.). Ninety years ago, the Waco court
observed “[t]he tendency of our courts has been from its 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.” Armstrong v. Carter, 291 S.W. 626, 627 (Tex. Civ.
App.—Waco 1927, no writ).
       Ignorance of the law is no excuse, but the proponent’s belief that probate is unnecessary,
coupled with a concern over the possible cost of probate, can constitute legally and factually
sufficient evidence to support admitting a will to probate more than four years after the death of
the testator. Kamoos, 570 S.W.2d at 8-9.
       In Chovanec v. Chovanec, 881 S.W.2d 135 (Tex. App.—Houston [1st Dist.] 1994, no
writ), the applicant was not aware that it was necessary to probate the will of his deceased wife
because he believed he had inherited everything from her and that the land in question was his
separate property. Id. at 138. Thirteen years later when he discovered there might be title



                                                 4
problems, he immediately offered the will for probate. Id. The appellate court found this
evidence sufficient to raise a fact issue regarding the applicant’s default and reversed a summary
judgment denying probate. Id. at 138.
Discussion
       The decedent’s estate was her community interest in the family home, a 1998 Honda
Civic, and a pickup truck, all estimated to be worth $125,000.00. Appellants argue that this
demonstrates the estate possessed sufficient assets to pay for the will’s probate. Moreover, they
ask how Morrison could have known he did not have enough money to probate the will if he
never consulted anyone on the subject.
       At the time of the hearing, Morrison Hammack, Jr. suffered severe chronic health
problems and had moved from the family home to an apartment in town. Poor health prevented
his attendance at the probate hearing. The month before he found he needed to probate his
wife’s will, his daughter sold his Honda Civic. The pickup had been sold to pay the cost of
removing a tree from the yard of his home.
       Morrison Hammack, Jr. argues that he lacked liquid assets that would have covered the
cost of probate. He insists it is unreasonable to expect him to liquidate his interest in the
community home and vehicles to probate a will that he did not know needed to be probated.
       In two cases cited by Appellants, Estate of Rothrock and Brown v. Byrd, the wills were
not probated (for fourteen and nineteen years, respectively) pursuant to a family agreement.
Estate of Rothrock, 312 S.W.3d at 275; Brown, 512 S.W.2d at 757. Family agreements have
been held an insufficient excuse for not applying for probate within the time prescribed by the
statute at least since 1914. Armendariz De Acosta v. Cadena, 165 S.W. 555, 557 (Tex. Civ.
App.–El Paso 1914, writ ref’d). In In re Estate of Cornes, 175 S.W.3d 491 (Tex. App.–
Beaumont 2005, no pet.), the proponent, with the agreement of the testator’s children,
consciously decided not to probate the will “out of respect” for their stepfather who was
specifically disinherited in his wife’s will, which he might have contested. Id. at 495. Citing
Brown v. Byrd and Armendariz De Acosta, the court found this be another variant of a family
agreement and an insufficient excuse to avoid default. Id. at 496. The court reversed the lower
court’s judgment admitting the will to probate. Id. at 500.
       In three other cases cited by Appellants, the proponents offered no excuse for failure to
apply for probate of the wills in question within four years of the testator’s death or the discovery



                                                 5
of the will. See Orr v. Walker, 438 S.W.3d 766, 769 (Tex. App.–Houston [1st Dist.] 2014, no
pet.); Schindler, 119 S.W.3d at 930; In re Estate of Williams, 111 S.W.3d 259, 264 (Tex.
App.—Texarkana 2003, pet. denied).
         The case at hand is closely analogous to Kamoos in which the proponent’s belief that
probate was unnecessary, together with her concern over the cost of the probate because of her
limited resources, was held a reasonable and sufficient proof to show she was “not in default.”
See Kamoos, 570 S.W.2d at 8-9. Similarly in Chovanec, the applicant mistakenly believed all
the property was his separate property and that the probate of his wife’s will was unnecessary.
Chovanec, 881 S.W.2d at 138. The appeals court found this to be sufficient proof to create a fact
issue regarding default, and reversed a summary judgment denying probate of the will. Id.
         The evidence in the instant case created a fact issue regarding default. The resolution of
that issue was for the trial court. We conclude the trial court did not err in finding Morrison
Hammack, Jr. was not in default and in admitting the will to probate. Appellants’ three issues
are overruled.


                                                   DISPOSITION
         Having overruled Appellants’ three issues, we affirm the trial court’s judgment.

                                                                               BILL BASS
                                                                                Justice

Opinion delivered April 13, 2016.
Panel consisted of Worthen, C.J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                                   (PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                            APRIL 13, 2016


                                          NO. 12-15-00246-CV


                            IN THE MATTER OF THE ESTATE OF
                            WILLIE SUE HAMMACK, DECEASED


                                Appeal from the County Court at Law
                    of Nacogdoches County, Texas (Tr.Ct.No. PB 14-12226)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellants, BILLY MARIE BUCKLEY, TERRY LYN MARSH LARRY GENE
MARSH, and DEBORAH SUE STUART, for which execution may issue and that this
decision be certified to the court below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
