Reversed and Remanded and Majority and Concurring Opinions filed January 16, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-00-01201-CV
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JAMES WOJCIK, JANETTE MEDLIN, DIANE WOJCIK, AND
VERONICA WHITE, Appellants
V.
SOPHIE WESOLICK, INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF ADAM WOJCIK, DECEASED, Appellee
On Appeal from the County Court at Law
Walker County, Texas
Trial Court Cause No. 6325
C O N C U R R I N G O P I N I O N
I agree with the Court that the Texas Probate Code does not require joinder of the devisees in this will contest. I write separately because I doubt this is either a legislative mistake or constitutionally questionable.
All parties here are nieces and nephews of the testator. Three of them (two sisters and a cousin) filed a document requesting probate of the challenged will and appointment of one of them (Sophie Wesolick) as the estate=s representative. Allowing for holes cut in the proffered will, only these three were named as devisees. Their application purported to waive service Afor all purposes,@ though the form was defective. See Tex. R. Civ. P. 119 (requiring that waiver of service acknowledge receipt of petition and show execution after suit filed).
Within six months, appellants began to file will contests. Several of the contests named all three devisees, and were sent to the attorney listed on their application for probate. Wesolick, now the estate=s representative, waited 22 months to complain that her fellow devisees should be joined and served separately. This was 26 months after the will was admitted to probate, and thus four months after limitations had run. See Tex. Probate Code ' 93. The trial court agreed, and dismissed all contests.
The Probate Code does not generally require service of citation, or even notice. See id.' 33(a). While service is required in a few specific circumstances, a will contest is not one of them. See id. ' 93. The legislature may have chosen not to require personal service on devisees in a will contest as they are the claimants who started the proceeding. They can keep themselves informed by simply requesting the clerk to give them notice of everything filed in the case. See id. ' 33(j). Because the summary judgment here did not prove otherwise, we must assume they were so informed, and simply lay behind a log till limitations passed.
In any event, I believe personal service here was unnecessary because of the joinder of Wesolick, the devisees= virtual representative. Forty years ago, the Texas Supreme Court held that when a will contest is brought against an estate=s representative, other devisees are proper but not indispensable parties under the doctrine of virtual representation.[1] Mason v. Mason, 366 S.W.2d 552, 553 (Tex. 1963). While the doctrine would not apply if a conflict of interest, collusion, or fraud were to keep the representative from effectively representing the interests of the devisees, id. at 554, there was neither allegation nor proof of such problems here.[2] As movant for summary judgment, Wesolick was required to prove the devisees were indispensable parties as a matter of law; by failing to even address virtual representation and Mason, she has failed to do so.[3]
One of my colleagues finds Mason Ano longer useful@ because constructive notice prevents devisees Afrom relying upon an executor.@ But the question in this case is not whether the devisees knew of the suit, but whether they had to be served. Constructive or even actual notice is not enough when service of citation is required. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex 1990) (actual receipt of process insufficient to support default when service was defective). I also doubt that virtual representation has disappeared from the trial courtsCtrustees and executors remain parties whose actions bind the beneficiaries of their representation. See Rooke v. Jenson, 838 S.W.2d 229, 230 (Tex. 1992); Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 832 (Tex. App.CAmarillo 1993, writ denied). But even if Mason is wrong, we still must follow it until the Supreme Court says otherwise. See Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002).
Here, the estate=s representative knew her sister and cousin would be affected by a will contest, yet waited until limitations had passed to Aprotect@ them. Statutes of limitation were not created Ato provide a log behind which opportunistic defendants could smugly lay [sic] for two years and then emerge solemnly proclaiming their statutory rights.@ Rooke, 838 S.W.2d at 230 (quoting Castro v. Harris County, 663 S.W.2d 502, 505 (Tex. App.CHouston [1st Dist.] 1983, writ dism'd)). Thus, I agree the trial court erred in dismissing the will contest for failure to serve the devisees.
/s/ Scott Brister
Chief Justice
Judgment rendered and Majority and Concurring Opinions filed January 16, 2003.
Panel consists of Chief Justice Brister and Justices Anderson and Frost.
[1] Virtual representation allows a non-party to be deemed a party if the non-party=s interests: (1) are determined by the judgment; (2) appear from the record; and (3) are identical to those of a party to the judgment. Motor Vehicle Bd. of Tex. Dept. of Transp. v. El Paso Independent Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 110 (Tex. 1999). Each is certainly the case here.
[2] The Probate Code=s appellate provisions incorporate the doctrine of virtual representation, allowing devisees to appeal any order affecting them even if they never join in the will contest. See Tex. Prob. Code '' 3(r), 31, & 312(e); compare San Juan 1990‑A, L.P. v. Meridian Oil Inc., 951 S.W.2d 159, 163-64 (Tex. App.CHouston [14th Dist.] 1997, pet. denied) (holding virtual representation allows a non-party to appeal from a judgment).
[3] Counsel for Wesolick cited only the intermediate appellate court=s opinion in Mason, noted that it was reversed by the supreme court, but alleged reversal was on Aother grounds.@