TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00711-CV
Dororthy N. Carter, Independent Executor of the Estate of Gertrude Emma Anna Haley,
Deceased, Appellant
v.
Patsy J. Campbell, Appellee
FROM THE COUNTY COURT AT LAW NO. 1 OF CALDWELL COUNTY
NO. 9266, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING
OPINION
Dororthy N. Carter, Independent Executor of the Estate of Gertrude Emma Anna
Haley, Deceased, appeals the order of the trial court requiring that she file an account of the estate
and permitting any heir to request a hearing on distribution of the estate. Carter contends that the
trial court lacks probate jurisdiction because the heirs to Haley’s estate signed a family settlement
agreement (“the Agreement”) that calls for distribution of the estate in a manner that departs from
the terms of the will. Carter contends that the probate court should have dismissed Campbell’s
petition for accounting and distribution under Probate Code section 149A because signing the
Agreement estopped Campbell from seeking remedies under the probate code. We will affirm the
trial court’s order.
BACKGROUND
Haley had three daughters—appellant Carter, appellee Campbell, and Marjorie A.
Boller. When Haley became incapacitated, Boller was appointed her guardian, and Boller and Carter
moved onto Haley’s farm to help care for her. Haley died on August 8, 2006. Her last will called
for distribution of her estate to her three daughters in unequal shares and appointed Carter as the
independent executor. Carter applied for probate, and Campbell prepared to contest the terms of the
will that gave her a smaller share of the estate.
According to the parties, minutes before the trial court took up the estate on its
docket call on September 7, 2006, Haley’s three daughters signed the Agreement that calls for the
estate to be divided among them as equally as possible. The Agreement describes Carter as an heir
and as the designated executor, and states that she is a party to the Agreement “on behalf of herself
and the Estate, provided the Court names her Independent Executrix.” After the parties signed
the Agreement, the trial court appointed Carter the independent executor of Haley’s estate. The
Agreement was not filed with the probate court until 2011.
Carter filed an inventory of the estate, then disbursed the proceeds of Haley’s
financial instruments in equal shares of approximately $343,000. Carter did not sell or otherwise
distribute Haley’s farm because she said she hoped it would regain value after a real-estate
slump. Some of Haley’s personal property allegedly remains on the farm. Carter continued to live
on the farm.
On May 31, 2011, Campbell filed her petition for accounting and distribution. At
the hearing on the petition, Carter orally moved to dismiss the petition on the basis that the
Agreement deprived the probate court of jurisdiction. The trial court declined to dismiss, ordered
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the accounting, and instructed the heirs that—after the accounting was filed—they could seek a
hearing on distribution of the estate under the terms of the Agreement. Carter filed an accounting
and then filed this appeal.
DISCUSSION
Carter contends that the trial court had no probate jurisdiction because the Agreement
supersedes the will. She argues that the Agreement estopped Campbell from seeking probate
remedies and barred the county court from enforcing probate remedies. Whether a court has subject
matter jurisdiction is a question of law that we review de novo. Texas Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
Absent the Agreement, the county court at law would clearly have jurisdiction
over the petition for distribution. See Tex. Prob. Code § 149B. All probate proceedings must be
filed in a court with original probate jurisdiction. Id. § 4A(a). The term “probate proceedings”
includes matters related to an independent administration, a structure for administering estates
that are governed by wills as well as estates of persons who die intestate. See id. §§ 3(bb), 145. The
probate code concerns the independent administration of estates, not just the execution of wills.
See id. § 145. The trial court’s probate jurisdiction was invoked by the offer of the will into probate
and Carter’s application to be appointed executor. See id. § 76. Carter accepted the appointment
as independent executor after signing the Agreement.1 There are provisions for removal of
independent executors, id. § 149, for judicial discharge of the independent executor, id. § 149E, and
1
Carter appears in this appeal as independent executor. She has not, in the record before us
or on appeal, sought to invalidate her appointment or any actions she may have taken as independent
executor.
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for the closing of the independent administration, id. §§ 151-52. As there is no indication that any
of these steps has been taken, the independent administration of Haley’s estate remains open. There
is no dispute that the Caldwell County Court at Law where the petition was filed is a statutory
county court with original probate jurisdiction. See Tex. Gov’t Code §§ 25.0003, 0301; Tex. Prob.
Code § 4C. Unless the Agreement imposed some legal impediment—e.g., through some mootness
theory—the trial court has jurisdiction over the petition.
The Agreement does not mention jurisdiction. A family settlement agreement is
a preferred alternative method of administration of an estate in Texas. Shepherd v. Ledford,
962 S.W.2d 28, 32 (Tex. 1998); In re Estate of Halbert, 172 S.W.3d 194, 199-200
(Tex. App.—Texarkana 2005, pet. denied). Under section 37 of the Probate Code, when a person
dies leaving a will, all of the estate devised or bequeathed by the will immediately vests in
the devisees or legatees, subject to payment of the decedent’s debts. Tex. Prob. Code § 37. The
beneficiaries of an estate are free to arrange among themselves for the distribution of the estate and
for the payment of expenses from that estate. Shepherd, 962 S.W.2d at 32. To be valid, a family
settlement agreement must alter the decedent’s distribution plan and must establish a substitute plan.
Halbert, 172 S.W.3d at 199-201. The Agreement herein has a few key provisions:
[A.] 1. Dorothy N. Carter is named the Independent Executrix of the Estate of
Gertrude Emma Anna Haley, now before the Caldwell County Court at Law for
admission. She is a daughter of decedent and an heir under said Last Will and
Testament. She is a party hereto in behalf of herself and the Estate, provided the
Court names her Independent Executrix.
....
[C] the heirs are willing to pool their inheritances and divide it as equally as possible
among them in one-third shares.
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....
[E.] 1. The intent of the parties hereto is that each person or entity executing this
Settlement Agreement shall, by reason of such execution, be entirely free of any and
all actual or potential claims, suits, demands, causes of action, charges or grievances
of any kind or character, regardless of the nature or extent of the same.
2. Each of the parties hereto hereby fully and finally RELEASES, ACQUITS, AND
FOREVER DISCHARGES each and every other party and further covenants not to
assert in any manner against any of such persons or entities released hereby, any and
all actual or potential claims held by any one against any other of the parties, and/or
any suits, demands, causes of action, charges or grievances of any kind or character
whatsoever, heretofore or hereafter accruing for or because of any matter done,
omitted or suffered to be done by any such party hereto prior to and including the
date hereof.
The Agreement acknowledges that Carter was named the executor of the estate and anticipates
that a court would in the future consider whether to approve that appointment. It alters the will’s
distribution plan and substitutes the heirs’ plan. It mutually releases all parties from claims and
demands based on acts or omissions occurring prior to or on the date of the Agreement—but it does
not release claims or demands based on acts or omissions occurring after the date of the Agreement.
Neither the Agreement nor the probate code expressly states that the Agreement or any family
settlement agreement deprives the county court at law of its probate jurisdiction.
The Agreement did not strip the probate system of jurisdiction or absolve Carter of
her duties as independent executor of Haley’s estate. While the sisters agreed to change the amounts
they received from the estate, waived many potential claims against each other, and acknowledged
Carter’s appointment as independent executor, they did not in the Agreement address the duties of
the executor or the jurisdiction of the court. We have reviewed the record and the many cases cited
by the parties and find none squarely on point. We are persuaded, however, that the mere existence
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of a family settlement agreement does not automatically take an estate entirely outside of probate
court jurisdiction. See, e.g., Halbert, 172 S.W.3d at 200 (family settlement doctrine can apply when
parties choose to probate one of several wills).
Carter’s arguments that the probate court lacks the power to permit a distribution
hearing fail. The Agreement did not preclude the independent administration of the estate either
explicitly or practically. The trial court appointed Carter the independent executor after the sisters
signed the Agreement. She remains the executor and the estate remains pending with some property
undistributed. As an heir to the estate and a named recipient of its property under the Agreement,
Campbell is an interested party to the probate of the estate and can seek distribution of property in
an estate pending independent administration for more than two years. See Tex. Prob. Code §§ 10,
149B. The administration had been open for five years at the time of the order. The probate court
has jurisdiction because Campbell’s petition relates to an estate being administered. See Tex. Gov’t
Code §§ 25.0003, .0301; Tex. Prob. Code §§ 3(bb), 4A, 4C & 145. Campbell is not collaterally
estopped by the Agreement from seeking the distribution because she does not seek to relitigate any
issue actually litigated and essential to a final judgment in a prior suit. See Barr v. Resolution Trust
Corp., 837 S.W.2d 627, 628 (Tex. 1992) (defining collateral estoppel). Instead, she seeks to have
the terms of the Agreement effectuated through the probate process Carter triggered. Section 94 of
the probate code—providing that no will is effectual until probated—is no bar to the petition because
that section relates to probate of a will, while Campbell’s petition does not seek distribution under
any will. See Tex. Prob. Code § 94. In her reply brief, Carter contends that the Agreement precluded
an assertion that this is an independent administration, but that contention does not square with
the absence of any such language in the Agreement, which is largely silent as to any mechanism for
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the distribution of the property in equal parts. The parties’ intent to use independent administration
is supported by the Agreement’s mention of the impending appointment of Carter as independent
executor, Carter’s acceptance of the appointment as independent executor of the estate minutes after
signing the Agreement, and her current appearance in this appeal as the independent executor of
Haley’s estate. The Agreement altered the proportionate distribution of the estate’s property but did
not supersede or preclude the independent administration of the estate.
We conclude that the trial court had the power under the facts of this case and
the law to exercise probate jurisdiction, order an accounting, and instruct the parties that—after
the accounting was filed—they could request a hearing concerning distribution of the estate. This
opinion should not, however, be construed as commenting on any party’s current entitlement to a
distribution on remand.
CONCLUSION
We affirm the trial court’s order.
Jeff Rose, Justice
Before Chief Justice Jones, Justices Pemberton and Rose
Affirmed
Filed: March 6, 2014
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