                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-14-00105-CV

                            IN THE ESTATE OF Billye M. HORMUTH

                          From the Probate Court No. 2, Bexar County, Texas
                                    Trial Court No. 2011-PC-4120
                              Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: September 10, 2014

REVERSED AND REMANDED

           This appeal arises from the trial court’s order granting a motion in limine and dismissing:

(1) a will contest, and (2) an application to probate a second will. Because we hold that the trial

court erred in granting the motion in limine, we reverse the trial court’s order and remand the cause

for further proceedings.

                                             BACKGROUND

           Billye M. Hormuth died on October 16, 2011 and was survived by her only children, Barry

Hormuth and Beverly Haddock. On October 31, 2011, the trial court admitted Billye’s will, dated

December 30, 1985, for probate and appointed Beverly as the executrix of the estate. In this will,

Billye devised her estate to Barry and Beverly in equal shares. According to the Inventory and

Appraisement filed by Beverly in January 2012, the value of the estate totaled over $525,000 and
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included Billye’s home located at 111 Anne Lewis Drive in San Antonio. As executrix of the

estate, Beverly conveyed the home at 111 Anne Lewis Drive to Barry in an Executor’s Deed dated

February 29, 2012.

        On May 17, 2012, Barry filed an “Application to Probate Will and for Issuance of Letters

Testamentary,” seeking to admit for probate a will allegedly executed by Billye on October 13,

2010. On May 17, 2012, Barry also filed a pleading entitled “Petition,” in which he contested the

probate of the 1985 will on the basis that it was revoked by the 2010 will. In the 2010 will, Billye

revoked all prior wills and devised $10,000 to Beverly, $10,000 to Billye’s two grandsons, and all

remaining real and personal property to Barry.

        On October 22, 2013, Barry filed motions for traditional and no-evidence summary

judgment on the claims raised in his contest to the 1985 will, and Beverly filed a response to those

motions on November 26, 2013. Also on November 26, 2013, Beverly filed a “Motion in Limine

to Dismiss for Lack of Standing Plaintiff’s Suit to Probate 2010 Will.” Beverly argued that Barry

was estopped from offering the 2010 will for probate because he had accepted benefits under the

1985 will, namely the home at 111 Anne Lewis Drive.

        On December 3, 2013, the trial court held a hearing which appeared to relate to both: (1)

the motion for summary judgment filed by Barry regarding his contest of the 1985 will; and (2)

the motion in limine filed by Beverly regarding Barry’s application to probate the 2010 will.

During the first hearing, the trial court granted a continuance and re-set only the motion in limine

for a subsequent hearing to be held on December 27, 2013. 1 After the second hearing, the trial



1
  The reporter’s record from the December 3, 2013, contains the following exchange:
         MR. SMITH: One moment, Your Honor. And if we do this, are we going to be just hearing the motion in
limine —
         THE COURT: Yes.
         MR. SMITH: — or we will be hearing everything?
         THE COURT: No.

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court granted the motion in limine and dismissed Barry’s application to probate the 2010 will. 2

The trial court did not enter findings of fact or conclusions of law.

                                             STANDARD OF REVIEW

         When the trial court does not make findings of fact or conclusions of law following a bench

trial, it is implied that the trial court made all findings necessary to support its judgment, provided

the findings are raised by the pleadings and supported by the evidence. Retamco Operating Inc.

v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009); In re Estate of Rothrock, 312 S.W.3d

271, 273 (Tex. App.—Tyler 2010, no pet.). If a reporter’s record is brought forward, these implied

findings may be challenged for factual and legal sufficiency as if they were jury findings or a trial

court’s findings of fact. In re Estate of Perez, 324 S.W.3d 257, 260 (Tex. App.—El Paso 2010,

no pet.). When reviewing the sufficiency of the evidence supporting such findings, “we do not

serve as a fact finder, pass upon the credibility of witnesses, or substitute our judgment for that of

the trier of fact, even if there is conflicting evidence upon which a different conclusion could be

supported.” Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. App.—San Antonio 2006, no pet.).

A trial court’s implied conclusion of law presents a legal question that we review de novo. BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); 8100 North Freeway, Ltd. v.

City of Houston, 363 S.W.3d 849, 855 (Tex. App.—Houston [14th Dist.] 2012, no pet.). “The

judgment must be affirmed if it can be upheld on any legal theory that finds support in the

evidence.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).




2
  The trial court’s order also dismisses Barry’s contest of the 1985 will. Because the trial court expressly stated on
the record that only the motion in limine was set for the hearing, however, the trial court erred in ruling on the motion
for summary judgment relating to the contest without proper notice. See Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 359 (Tex. 1998) (holding notice of hearing or submission of motion for summary judgment is
required). Setting the hearing exclusively on the motion in limine was appropriate because if the trial court proceeded
with probating the 2010 will, the 1985 would effectively be revoked, and any issues relating to the contest of that will
would be moot.

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                                            DISCUSSION

       In granting the motion in limine, the trial court concluded that estoppel deprived Barry of

standing to: (1) contest the 1985 will; and (2) file an application to probate the 2010 will. We

agree that a person’s acceptance of benefits under a will may result in estoppel which denies the

person standing to contest that will. Trevino v. Turcotte, 564 S.W.2d 682, 685-86 (Tex. 1978); In

re Estate of McDaniel, 935 S.W.2d 827, 829 (Tex. App.—Texarkana 1996, no pet.). We do not

agree, however, that estoppel resulting from the acceptance of benefits under one will deprives a

person of standing to file an application to probate a different will.

       After a will has been admitted for probate, the validity of the will may be contested by a

person with standing as a “person interested” in the estate. TEX. EST. CODE ANN. § 55.001 (West

Pamph. 2013); TEX. EST. CODE ANN. 256.204 (West Pamph. 2013). A “person interested” is an

“heir, devisee, spouse, creditor, or any other having a property right in or claim against an estate

being administered.” Id. at § 22.018 (West Pamph. 2013). Under the doctrine of estoppel,

however, a “person interested” who otherwise would have standing to contest a will can be

estopped from pursuing a contest if the person had accepted benefits under the will. In re Estate

of Davis, 870 S.W.2d 320, 322 (Tex. App.—Eastland 1994, no writ.).

       A separate provision of the Estates Code provides that after a will has been admitted for

probate, a person with standing may file an application to admit a second will of the same decedent

for probate. TEX. EST. CODE ANN. § 256.102 (West 2014). A person has standing if they are a

person interested in the estate or if they are an executor named in a will. Id. at § 256.051. An

application under this provision to probate a later will—allegedly executed after the execution of

the probated will—is not considered a contest of the earlier will. Stovall v. Mohler, 100 S.W.3d

424, 427 (Tex. App.—San Antonio 2002, pet. denied); Klein v. Dimock, 705 S.W.2d 408, 410

(Tex. App.—Fort Worth 1986, writ ref’d n.r.e.). Rather, the trial court considers the second
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application under the same standards and procedures employed when considering the first

application and may admit the second will for probate. See TEX. EST. CODE ANN. §§ 256.102,

256.103(a). Even though the probate of the second will effectively revokes the probate of the first

will, that effect is merely “incidental” and does not render the proceeding a will contest. Estate of

Morris, 577 S.W.2d 748, 752 (Tex. App.—Amarillo 1979, writ ref’d n.r.e.) (citing Vance v. Upson,

64 Tex. 266, 268–71 (1885)). A will contest, in contrast, is a “direct attack on the order admitting

a will to probate” and if successful, only has the effect of setting aside the probated will. Stoll v.

Henderson, 285 S.W.3d 99, 105 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

       Texas Courts have consistently applied estoppel in determining whether a person has

standing to contest a will. See Trevino, 564 S.W.2d at 685; Sheffield v. Scott, 620 S.W.2d 691,

693–94 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.); In re Estate of Davis, 870

S.W.2d at 322; In re Estate of McDaniel, 935 S.W.2d at 829. We can find only one case, however,

where a court appears to have applied estoppel to deprive a person of standing to offer a second

will for probate. In Atkins v. Womble, 300 S.W.2d 688, 700 (Tex. App.—Dallas 1957, writ ref’d

n.r.e.), the Dallas Court of Appeals held that a person who accepted benefits under a probated will

“relinquished her right to take under” a second will she subsequently offered for probate; however,

that same person also had executed a settlement and release of all of her claims against the estate

in exchange for an additional $25,000 and 473 acres of land that she was not entitled to receive

under the probated will. Id. at 692. Therefore, the court had an alternative basis for its holding,

i.e., the release, and its one sentence holding that the devisee relinquished her right to probate the

second will is without discussion, analysis, or citation to any cases that directly support the

conclusion. Id. at 700. Neither the Texas Supreme Court, nor the majority of other courts of

appeals applying estoppel, have applied estoppel to defeat standing outside of the context of a will

contest. Because the Atkins decision is clearly distinguishable and we find no other persuasive
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authority to support the contention that Barry can be estopped from asserting his standing to apply

for probate of the 2010 will, we hold that the trial court erred in dismissing Barry’s application to

probate the 2010 will based on his acceptance of benefits under the 1985 will. 3

                                                  CONCLUSION

        Because Barry’s acceptance of benefits under the 1985 will did not deprive him of standing

to apply for probate of the 2010 will, we reverse the trial court’s order and remand the cause for

further proceedings.

                                                          Catherine Stone, Chief Justice




3
  We express no opinion about the validity of the 2010 will or whether it should be admitted to probate because those
issues are for the trial court to decide. See TEX. ESTATES CODE § 256.102.

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