ACCEPTED
12-15-00246-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/25/2015 12:25:03 PM
Pam Estes
CLERK
DOCKET NO. 12-15-00246-CV
IN THE
12/2/2015
TWELFTH COURT OF APPEALS
at Tyler
-------------
In the Matter of the Estate of Willie Sue Hammack, Deceased
-------------
LARRY GENE MARSH, BILLIE MARIE BUCKLEY, DEBORAH SUE STUART, AND
TERRY LYN MARSH
Appellant
V.
ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.
Appellees
-------------
Appealed from the County Court at Law
of Nacogdoches County, Texas
-------------
APPELLANT’S BRIEF
Robert M. Minton
Texas Bar No. 14195000
Minton & Brown, PLLC
P. O. Box 1688
Henderson, Texas 75653
Telephone: (903) 657-3543
Facsimile: (903) 657-3545
E-Mail: mintonbrown@suddenlinkmail.com
ATTORNEY FOR APPELLANT
APPELLANT’S NOT REQUESTING ORAL ARGUMENT
IDENTITY OF PARTIES & COUNSEL
Appellant:
Estate of Willie Sue Hammack by Morrison Hammack, Jr.
Counsel for Appellant:
Trial and Appellate Counsel:
Robert M. Minton
Texas Bar No. 14195000
Minton & Brown, PLLC
P. O. Box 1688
Henderson, Texas 75653
Telephone: (903) 657-3543
Facsimile: (903) 657-3545
E-Mail: mintonbrown@suddenlinkmail.com
Appellees:
Larry Gene Marsh, Billie Marie Buckley, Deborah Sue Stuart, and Terry Lyn Marsh
Counsel for Appellees:
Trial and Appellate Counsel:
Mr. Christopher C. Hughes
Fairchild, Price, Haley & Smith, L.L.P.
1801 North Street
P.O. Box Drawer 631668
Nacogdoches, Texas 75963
Telephone: (936)569-2327
Facsimile: (936)569-7932
E-Mail: chughes@fairchildlawfirm.com
Presiding Judge:
The Honorable Jack Sinz
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL……………………………………………..…….…i
TABLE OF CONTENTS…………………………………………………………………..……..ii
INDEX OF AUTHORITIES…………………………………………………………………..…iii
STATEMENT OF THE CASE…………………………………………………………………...iv
ORDER FROM WHICH RELIEF IS SOUGHT…………………………………………………iv
ISSUES PRESENTED………………………………………………………………………..…..v
STATEMENT OF FACTS…………………………………………………………………….….2
SUMMARY OF ARGUMENT…………………………………………………………………...4
ARGUMENT & AUTHORITIES…………………………………………………………….…..5
A. Combined Issues…………………………………………………………….…….5
CONCLUSION…………………………………………………………………………….…….12
PRAYER…………………………………………………………………………………….…...13
CERTIFICATE OF SERVICE…………………………………………………………………..13
CERTIFICATE OF COMPLIANCE……………...……………………………………………..14
ii
INDEX OF AUTHORITIES
CASES PAGE(S)
Brown V. Byrd, 512 SW2d 753—(Ct. Appls-Tyler-1974)…………………….………………..10
In Re Estate of Campbell, 343 SW3d 889—(Ct. Appls-Amarillo-2011)……………………..…..9
In the Estate of Ruby Fowler Cornes, 175 SW3d 491—(Ct. Appls-Beaumont-2005)…………..10
Orr V. Walker, 438 SW3d 766—(Ct. Appls-Houston-2014)……………………………………10
Estate of Everett h. Rothrock Deceased, 312 S.W.3d 271 —(Ct. Appls-Tyler-2010)…………….8
Schindler V. Schindler, 119 SW3d 923—(Ct. Appls-Dallas-2003)……………………….….9, 10
Estate of Cordelia Williams, Deceased, 111 SW3d 259—(Ct. Appls-Texarkana-2003)…….….11
iii
STATEMENT OF THE CASE
This is an Appeal from the Order Admitting Will to Probate as Muniment of Title,
entered by the County Court at Law of Nacogdoches County, Texas, of a Will filed eight (8)
years after the date of death of the Testatrix.
Contestants contend that the evidence was factually and legally insufficient to support the
Judgment of the Court, finding “no fault” on the part of Applicant, and that such will should
have been denied probate.
ORDER FROM WHICH RELIEF IS SOUGHT
The Order of the Court Admitting Will to Probate as Muniment of Title, (CR-56), finding
that Applicant was not in default for failing to present the will for probate within four (4) years
of the date of death of Decedent, (CR-56).
iv
ISSUES PRESENTED FOR REVIEW
1. The evidence supporting the Trial Court’s finding that the Applicant was not in
default for failing to present the will for probate within four (4) years of the date of death of
Decedent was factually insufficient, (CR-56, CR 74-75).
2. The trial Court’s finding that Applicant was not in default for failing to present
the will for probate within four (4) years of the date of Decedent’s death was so against the great
weight and preponderance of the evidence as to be manifestly unjust, (CR-56, CR 74-75).
3. The evidence supporting the Trial Court’s finding that the Applicant was not in
default for failing to present the will for probate within four (4) years of the date of death of
Decedent was legally insufficient, (CR-56, CR 74-75).
v
DOCKET NO. 12-15-00246-CV
IN THE
TWELFTH COURT OF APPEALS
at Tyler
-------------
In the Matter of the Estate of Willie Sue Hammack, Deceased
-------------
LARRY GENE MARSH, BILLIE MARIE BUCKLEY, DEBORAH SUE STUART, AND
TERRY LYN MARSH
Appellant
V.
ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.
Appellees
-------------
Appealed from the County Court at Law
of Nacogdoches County, Texas
-------------
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
Appellant’s appeal from the Trial Court’s Order Admitting Will to Probate as Muniment of Title
entered on the 25th day of June, 2015. The Decree should be reversed.
1
STATEMENT OF FACTS
This is an Appeal from Order Admitting Will to Probate as Muniment of Title.
(CR-56) Willie Sue Hammack passed away on July 2, 2006 in Nacogdoches County, Texas,
leaving a last will and testament dated April 2, 1986. On July 17, 2014, Morrison Hammack, Jr.,
her husband, filed an application to probate Will as a Muniment of Title, and the parties
contestant, being Larry Gene Marsh, Billie Marie Buckley, Deborah Sue Stuart and Terry Lyn
Marsh filed their contest to such will (CR-26), based on the grounds that the will should not be
admitted to probate since it was past the statute of limitations for filing a will for probate and
admitting same. Mr. Morrison Hammack. Jr. knew of the will and its existence at the time of his
wife’s death, and stated in deposition that he knew the contents of the will and how it left the
property.
Mr. Hammack failed to probate such will within four (4) years of death of Willie Sue
Hammack, Deceased, and did not file same or attempt to probate same until July 17, 2014, (CR
8-11).
This case turns upon the sufficiency of evidence, and whether or not same is sufficient to support
the findings of the Court in its findings of its conclusion of law, and its finding in its Order
Admitting Will to Probate, (CR-56). It is a contention of contestants that Applicant is at fault for
failing to present the will of Willie Sue Hammack for probate within four (4) years after the date
of her death, as such limitations are set out in Section 256.003, Texas Estates Code, in that
Applicant had possession of the will from and after the date of death of Willie Sue Hammack on
July 2, 2006, and did not present the same for probate until the filing of an Application to
Probate, filed on July 17, 2014, in Nacogdoches County, Texas. Further, that the evidence
conclusively shows that Mr. Hammack was in possession of property of the estate sufficient to
2
pay any cost of probate, which would enable him to be able to employ council to probate said
last will and testament prior to the expiration of the four (4) year limitation contained in Section
256.003, Texas Estates Code, and that Mr. Morrison Hammack, Jr., is at fault for failing to
probate said will within such four (4) year period of limitations, and that his actions in failing to
do are not excused.
The Trial Court entered Order Admitting Will to Probate on June 25, 2015, finding that
Morrison Hammack, Jr., Applicant, was not in default for failing to present the will for probate
within four (4) years of the death of Decedent, (CR-56).
The Request for finding of Facts and Conclusions of Law were filed by Contestants on
July 8, 2015, (CR-63).
The Notice of Past Due Findings of Facts and Conclusion of Law were filed on July 30,
2015, (CR-69).
The Contestants Request for Additional time to file Findings of Facts and Conclusion of
Law was filed on July 31, 2015, (CR-71).
The Order of Finding Facts and Conclusion of Law was filed September 3, 2015, (CR-
74).
The Denial of Additional Findings of Facts and Conclusion of Law was filed September
3, 2015, (CR-76).
The Notice of Appeal was filed September 22, 2015, (CR-77).
3
SUMMARY OF ARGUMENT
The evidence shows that Morrison Hammack, Jr., knew of the terms contained in the Last
Will and Testament of Willie Sue Hammack, Deceased; of the admonition of action in a probate
Court as contained in said will; that he did not seek nor rely upon the advice or opinions of
others as to the time in which to, nor the necessity of, probating said will; that he relied upon his
own knowledge, or the lack thereof, concerning the necessity of probate and the time limit in
which to do same.
The evidences show that there was significant value of assets in the Estate of Willie Sue
Hammack, Deceased with which to pay for the costs of probate of her Last Will and Testament.
The Court erred in finding “no fault” on the part of Applicant, Morrison hammock, Jr.,
and in admitting said will to probate as a muniment of title.
4
ARGUMENTS AND AUTHORITIES
The issues presented for review can all be covered by argument and authorities at one
time, avoiding the multiplicity and duplication of authorities, which pertain to the same subject.
The issues restated are as follows:
A. The evidence supporting the Trial Court’s finding that the Applicant was not in
default for failing to present the will for probate within four (4) years of the date
of death of Decedent was factually insufficient, (CR-56, CR 74-75).
B. The trial Court’s finding that Applicant was not in default for failing to present
the will for probate within four (4) years of the date of Decedent’s death was so
against the great weight and preponderance of the evidence, (CR-56, CR 74-75).
C The evidence supporting the Trial Court’s finding that the Applicant was not in
default for failing to present the will for probate within four (4) years of the date
of death of Decedent was legally insufficient, (CR-56, CR 74-75).
I.
The legislature of the State of Texas spent time and the equivalent of time in money, not
only in the past, in passing the Texas Probate Code, but in formulating the Texas Estates Code.
Section 251.001 of the Texas Estates Code provides that a person must be over 18 years of age,
or married or has been married, or a member of the U. S. Armed Forces or an auxiliary of same,
in order to execute a valid will; Section 251.051 that provides that the will must be in writing;
Section 256.001 that provides that the provisions and terms of a will will not be effective until
the will is admitted to probate; and Section 256.003 provides that the will shall not be admitted
to probate, if not filed for probate within four (4) years after the date of death of the maker of the
will. It would be inconceivable to believe that the State Legislature of the State of Texas spent
5
time and money in order to pass such provisions, along with other provisions of the Texas
Estates Code, unless the intent was that we would abide by same. Further, it would be
inconceivable to believe that just “any excuse” would be allowed, so that such provisions would
be nullified.
It is the contention of the Appellants that the evidence presented in the case, in trial
Court, was insufficient to support the finding of the Trial Court that Mr. Morrison Hammack, Jr.,
was not in default for failing to apply for probate of the Last Will and Testament of Willie Sue
Hammack, Deceased, within four (4) years of her death.
Mr. Morrison Hammack, Jr., the Applicant for probate, did not appear at the hearing on
the Application to Probate Will as a Muniment of Title (RR-5, RR-6).
The issues are whether or not Mr. Hammack is at fault for failing to probate the Last Will
and Testament of his wife, Willie Sue Hammack, within four years after her death.
In the situation we have at hand, Mr. Hammack did not consult an attorney, did not
consult any beauty shop, barber shop, or domino hall lawyers, or apparently by his testimony the
advice of anyone else, relating to the probate of the Last Will and Testament. We do not know
what he assumed. It should be pointed out that Mr. Hammack did not appear in Court to be
questioned on this matter.
Mr. Morrison Hammack, Jr., filed for probate the Last Will and Testament of Willie Sue
Hammack, his wife, on July 17, 2014, even though the said Willie Sue Hammack had passed
away of July 2, 2006, in Nacogdoches County, Texas. Mr. Hammack, by way of deposition, gave
evidence that he didn’t discuss the passage of the property under the will with anyone, (RR-16,
17, 30), and that he didn’t know to probate said last will and testament, (RR-15). Mr. Hammack
stated that he understood that property passes on death, (RR-16), to someone by the terms of the
6
will, and that he knew about the will at the time of her death, (RR-11, 17). Mr. Hammack further
stated that he didn’t discuss the need to probate the will, (RR-18), with anyone, shortly after her
death, or with an attorney, until approximately one (1) month before the filing of the will for
probate, (RR-18). Mr. Hammack further testified that he had property transferred out of her
name before her death, (RR-18), and that the papers were prepared by an attorney.
Mr. Hammack testified through deposition that he didn’t have the money to file the will
for probate, (RR-12), but yet he testified that there was money in account in the bank, (RR-20),
but he didn’t know how much. There was no testimony that there was not sufficient money in the
account to pay for probate. This evidence begs the question: How did he know what the cost of
probate might be, unless he consulted someone? It would appear that the testimony on this point,
from the stand point of Mr. Morrison Hammack, Jr., was misrepresentative of the facts. Mr.
Hammack further testified that he knew about the property owned by himself and his wife, as
well as property that she owned as separate property, (RR-26, 27, 29).
Evelyn Louise Kelly, the daughter of Mr. Morrison Hammack, Jr., was sworn in as a
witness and testified that in her estimation the estate was in access of $125,000.00 at the date of
the death of Willie Sue Hammack, (RR-34, 35), and testified further as to those assets, in a
general since, being land and house, an automobile, and a pick-up truck, (RR-37). She further
testified that under Power of Attorney that she sold the 1998 Honda Civic Automobile that they
owned at her death, in April, 2014, for $3,000.00, (RR-38, 39) (RR-Exhibit C-2), this
information presents the obvious conclusion that the community one-half (1/2) of the Estate of
Morrison Hammack, Jr., and Willie Sue Hammack was more than sufficient to pay for the
expenses of administration, which is classified as a second degree claim under Section 355.102
(2) of the Texas Estates Code.
7
Mr. Terry Marsh was called as a witness and testified that he had observed information at
the house that Mr. and Mrs. Hammack relating to an account of hers that showed a balance of
over $36,000.00, (RR-47), and that Mr. Hammack’s account in his name showed a balance in
access of $20,000.00, (RR-47).
Since these parties were husband and wife, it will be presumed under the law that these
bank accounts were community property accounts, that the automobile, the truck, and the land
and house, were all community property, and according to the provision of the Texas Estates
Code, Section 355.102 (2), the expenses of administration are a second degree priority claim
against the assets of said Estate. One-half (1/2) of the value of the truck, or One-half (1/2) of the
value of the automobile (which sold 8 years later for $3,000.00, (RR-38, 39) (RR-Exhibit C-2),
or half of the funds in the bank, or half of the value of the house and land, would have been more
than sufficient to pay for the cost of probating said last will and testament. This evidence as
presented negates the position of Mr. Morrison Hammack, Jr., that he didn’t have money to
probate the will.
If we review the case of the ESTATE OF EVERETT H. ROTHROCK DECEASED, 312
S.W.3d 271 (2010), rendered by the Court of Appeals out of Tyler, you will find that the Court of
Appeals upheld the Trial Court’s order denying the application to probate the will as a Muniment
of Title. The Trial Court, and the Court of Appeals found that Mr. Jerry E. Rothrock was in
default for failing to probate his father’s will within the statutory period. Mr. Jerry E. Rothrock
testified that he made investigations but never talked to anyone else about the property owned by
Everett H. Rothrock Deceased, at the time of his death. Mr. Jerry Rothrock was also considered
a very successful lawyer in Washington D.C. (by his own admission) and that half of his practice
dealt with oil and gas law. He was charged with knowledge that the will should have been
8
admitted to probate. The Court discussed the standard of review on appeal, and the applicable
law which is Section 73a of the Texas Probate Code, which is now Section 256.003 of the Texas
Estates Code hereinbefore quoted. His only testimony was concerning a mistake of fact, and that
was held to be insufficient.
There are numerous cases cited under the Rothrock case that can be read by the Court, as
the Court desires. However, the Rothrock case stands for the proposition that a person having
custody of will is charged with knowledge that it must be filed for probate within the statutory
time, in order to rely upon it, whether the necessity for doing so is apparent to him or not. The
Court further discusses that “one purpose of the probate limitations statute is to impose a
reasonable limit on the time in which the property of a person dying testate should be distributed
among his legatees, after payment of his debts.” The Court further defines default, as is defined
in the statute, and the burden of proof upon the person presenting the will for probate after four
years. The Court further discussed the fact that family agreements not to probate a will about
which they had knowledge are not sufficient to excuse non-compliance with the four year
limitation of the probate code in which to seek the probate of a will.
The authorities presented in support of their contentions that had been decided by the
Courts of this State are as follows:
A. In Re Estate of Campbell, 343 SW3d 889—(Ct. Appls-Amarillo-2011), in which
the Court sustain the finding of no default, but set forth the principal which is also
set forth in Schindler, post, that a person having custody of the will is charged
with the knowledge that the will must be filed for probate within the statutory
time. The evidence in this proceeding shows that Mr. Hammack had custody of
the will and knew of its contents.
9
B. Brown V. Byrd, 512 SW2d 753—(Ct. Appls-Tyler-1974), held that neither of the
granddaughters reliance upon a family agreement regarding the Estate, her
ignorance of the law, nor the difficulty she would incur in probating the will,
excused the delay in failing to file the will for probate within four (4) years after
the death of the Deceased. In this case we have a plea of ignorance of the law
only, which is negated by this case holding. The supposed monetary difficulty
presented in this case apparently is imaginary only, due to the value of the assets
of the Estate.
C. In the Estate of Ruby Fowler Cornes, 175 SW3d 491—(Ct. Appls-Beaumont-
2005), again, an Appellate Court has stated that reliance upon a family oral
agreement, to spare the feelings a survivor, was not enough to excuse a failure to
file a will for probate within four (4) years. This case also defines “default” as
used in the Texas Estates Code, Section 256.003, formerly Section 73 of the
Texas Probate Code.
D. In the case of Orr V. Walker, 438 SW3d 766—(Ct. Appls-Houston-2014), the
Court defines “default”, and further states the test for sufficiency of evidence is
any finding that is based upon evidence that would cause reasonable and fair-
minded people to reach the same verdict, or would reach a contrary verdict. This
same standard is set forth in Schindler, post.
E. Schindler V. Schindler, 119 SW3d 923—(Ct. Appls-Dallas-2003), presents again
the standard for review of legal and factual insufficiency of evidence to support a
Court’s finding that the Applicant of a will file for probate after four (4) years
after the date of death of the Decedent, was not in default.
10
F. Estate of Cordelia Williams, Deceased, 111 SW3d 259—(Ct. Appls-Texarkana-
2003), sets forth the standard of review of conclusions of law to the Trial Court,
in that same are to be reviewed by the Appellate Court de novo. Although there
are findings of the fact, apparently supporting the conclusion of law adhered to by
the Trial Court, the Court “cherry-picked” the facts, and refused to make findings
of fact or conclusions of law as additional findings of fact and conclusions of law
as requested by Contestants.
I find no cases were the Trial Court has absolutely refused to make findings of fact and
conclusions of law, by its act of volition, even though the failure to make such findings on time
may have occurred by a negligence or indifference. Therefore, it’s a contention that any
conclusions of law, made by the Trial Court, should be reviewed de novo, and that no
presumption should arise by the Courts voluntary refusal to make findings of facts and
conclusions of law.
11
CONCLUSION
From the evidence presented at trial, a Trial Court should have entered an Order Denying
the Probate of the Last Will and Testament of Willie Sue Hammack, Deceased, finding that
Morrison Hammack, Jr., was in default for failing to produce the will for probate within four (4)
years after the date of the death of said Willie Sue Hammack, Deceased. Ignorance of the law is
no excuse, as has been set forth in one of the cases sited herein. Further there is ample evidence
that there were assets of value in the Estate of Willie Sue Hammack, Deceased, that would have
funded the cost of probate. In addition, it should be pointed out that no testimony was offered by
the Applicant as to the cost to probate, nor did he ever inquire of the approximate cost to probate
a last will and testament in a Probate Court. The evidence presented is legally and factually
insufficient to support the Order of Court, authorizing the probate of said last will and testament.
12
PRAYER
For the reason stated in this Brief, the Contestant ask the Court to reverse the Trial
Court’s Order Admitting Will to Probate as a Muniment of Title entered in this proceedings on
June 25, 2015 (CR 56-57).
Respectfully submitted,
MINTON & BROWN, PLLC
Attorneys at Law
134 N. Marshall Street
P. O. Box 1688
Henderson, Texas 75653-1688
(903) 657-3543
(903) 657-3545 Fax
Email: mintonbrown@suddenlinkmail.com
BY: /s/ Robert M. Minton
ROBERT M. MINTON
Attorney for Appellant
Bar Card #14195000
CERTIFICATE OF SERVICE
I certify that on November 25, 2015, a true and correct copy of Appellant's Brief was
served on Christopher C. Hughes electronically at chughes@fairchildlawfirm.com and the
electronic transmission was reported as complete.
/s/ Robert M. Minton
ROBERT M. MINTON
E-mail:mintonbrown@suddenlinkmail.com
13
CERTIFICATE OF COMPLIANCE
The undersigned certifies that the Appellant’s Brief, except for the caption, identity of
parties and counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of compliance, and
appendix, as set out in Tex. R. App. P.9.4(i)(1), hereby contains the total of 3,065 words.
Respectfully submitted,
MINTON & BROWN, PLLC
Attorneys at Law
134 N. Marshall Street
P. O. Box 1688
Henderson, Texas 75653-1688
(903) 657-3543
(903) 657-3545 Fax
Email: mintonbrown@suddenlinkmail.com
BY: /s/ Robert M. Minton
ROBERT M. MINTON
Attorney for Appellant
Bar Card #14195000
14