Affirmed and Majority and Concurring Opinions filed September 19, 2017.
In The
Fourteenth Court of Appeals
NO. 14-16-00648-CV
LINDA FERREIRA, Appellant
V.
DOUGLAS W. BUTLER AND DEBRA L. BUTLER, Appellees
On Appeal from the Probate Court No. 3
Harris County, Texas
Trial Court Cause No. 441962
CONCURRING OPINION
I join the majority opinion, but I write separately to urge the Texas Supreme
Court to take this case so that it may resolve a split among the courts of appeals and
consider whether this opinion, in effect, abrogates section 256.003 of the Estates
Code. I also disagree with Justice Jewell’s concurring opinion.
I agree with Justice Busby that there is a split among the courts of appeals.
Compare In re Estate of Campbell, 343 S.W.3d 899, 905–08 (Tex. App.—Amarillo
2011, no pet.) (holding default of devisee did not prevent devisee’s devisee from
probating the will), with Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—
Dallas 2003, pet. denied) (holding devisee’s default prevented the devisee’s devisee
from probating the will).
I also agree that we are bound to follow Faris v. Faris, 138 S.W.2d 830 (Tex.
Civ. App.—Dallas 1940, writ ref’d), because the Texas Supreme Court refused a
writ of error in that case, meaning that the opinion has the same precedential value
as an opinion of the Texas Supreme Court. See Tex. R. App. P. 56.1(c); Tex. Utils.
Elec. Co. v. Timmons, 947 S.W.2d 191, 199 (Tex. 1997). Thus, Faris dictates the
result here.
But by requiring Linda to show that Norman was not in default, rather than to
limit it to her own default, we effectively preclude the application of the statute to
Linda. I cannot imagine any factual scenario that would allow admissible testimony
to prove that Norman was not in default. Nor can the appellees. When asked at oral
argument how Linda could ever prove that Norman was not in default, they had no
answer. As a result, Linda cannot take advantage of the statute that allows for late
filing of a will to probate.
While Justice Jewell is correct that a statute of limitations is intended to timely
resolve estates, not allowing Patricia’s will to be probated does not timely resolve
her estate. In fact, it only complicates matters because now her estate will be
governed by the laws of intestacy. One of the main assets of Norman’s estate was
apparently the home that he lived in with Patricia. (The record does not contain the
title information for the property.) Instead of title resting solely in Norman, the title
issue may be complicated by separate versus community property issues. Norman’s
estate may be entitled to compensation for the years he paid taxes on the property or
for other improvements. The status of the real property will be in legal limbo while
these issues are litigated. Attorney’s fees will be much higher.
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Patricia left her estate to Norman—not to the appellees. By sitting quietly all
these years, the appellees gain a windfall. Patricia’s intent will not be honored.
Applying the statute of limitations to Linda’s application does not result in justice,
nor does it further a legislative goal of timely resolving estates.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Busby, and Jewell. (Busby, J., majority).
(Jewell, J., concurring).
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