            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                           NO. 03-01-00682-CV
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 Cecelia B. Dorsey, Dependent Administrator of the Estate of Sally Lou Roberts, Appellant

                                                       v.

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


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                     FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
                   NO. 75,847, HONORABLE GUY S. HERMAN, JUDGE PRESIDING
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                 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=s1 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


        1
            For the sake of clarity, we will use the parties= first names.
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 (Athe 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


        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.




                                                       2
owned the following property at the time of his death: AOne half (2) Community Property interest in

Decedent=s homestead, 1706 East 32nd Street, Austin, Texas 78724. One half (2) 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) AAll of Decedent=s community interest in real and

personal property@; (2) AAll of Decedent=s separate real property subject to Sally Lou Roberts= [sic] estate

for life in 1/3@; and (3) A2/3 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 Athe evidence conclusively

established all vital facts in support of the statute of limitations barring this Application to Declare

Heirship.@


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                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: AEvery 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 Aan 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.CSan 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

A[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.


        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 A[o]ne half (2) 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.


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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. AThat 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: AThe 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: AWe 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: AThere are competing interests under

various Texas statutes at issue in this case: (1) the right of adoptees to inherit from or through their


                                                      5
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

familiesCthe dispositive policy consideration in LittleCis 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.CSan

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 A[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


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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 Acomplied with and met all matters and proof

required to support her Application to Determine Heirship.@ We attach to findings of fact the same

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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.CAustin 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.CAustin 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 Awhich has been on record in Travis County

for sixteen years constitutes prima facie evidence that [Cathy] was not born to or adopted by the




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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 Aborn 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




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application that she was Aborn 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



        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.




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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 youCthe very first
         thing that was asked was for a query on Cathy Jo Jackson. And they came
         backCthere is noCand 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 pageCI=m on Page 2 of their packet. They do mention a Cathy
         JoCCathy Jo Jackson, black female, 5=, 4@, 159, black hair and with the number
         01968136 . . . . ButCand all these aliasesCand 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 orCexcuse meCCathy 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=sCthe person that=s in jail is
         this person, and I think she=s Cathy Roberts or Cathy Jo Jackson.

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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


        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).

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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 Afinding 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 Aborn 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.




Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: July 26, 2002

Do Not Publish



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