IN THE SUPREME COURT OF TEXAS
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NO. 17-0901
444444444444
LINDA FERREIRA, PETITIONER,
v.
DOUGLAS W. BUTLER AND DEBRA L. BUTLER, RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS
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Argued December 6, 2018
CHIEF JUSTICE HECHT delivered the opinion of the Court.
JUSTICE BUSBY did not participate in the decision.
A Texas statute provides that “a will may not be admitted to probate after the fourth
anniversary of the testator’s death unless . . . the applicant for the probate of the will was not in
default in failing to” probate the will within that period.1 In Faris v. Faris, we held that a devisee’s
default is imputed to his own devisee, though the latter is not himself in default.2 But the statute
plainly states that it is the applicant who must be in default for limitations to run. We have never
1
TEX. EST. CODE § 256.003(a) (emphasis added). All statutory references are to the Estates Code unless
otherwise indicated.
2
138 S.W.2d 830, 832 (Tex. App.—Dallas 1940, writ ref’d).
cited Faris, and today we overrule it. We vacate the lower courts’ judgments and remand the case
to the trial court.3
I
After Norman and Linda Ferreira divorced, Norman married Patricia Hill, whose children
from a prior marriage include petitioners Douglas and Debra Butler (“the Butlers”). Patricia died
in 2006. Her will left her entire estate to Norman. Norman never probated Patricia’s will, never
remarried, and died in 2015. His will left most of his estate to Linda, who was appointed as executor.
Linda discovered Patricia’s will while going through Norman’s belongings after his death.
In her capacity as executor of Norman’s estate, she offered the will for probate as a muniment of title
nine years after Patricia’s death. The Butlers, Patricia’s intestate heirs, contested the probate of her
will on the ground that it was barred by the four-year limitations period in Section 256.003(a) of the
Estates Code, quoted above. The Butlers argued that Norman’s failure to probate Patricia’s will is
the relevant “default” under the statute. In response, Linda offered no evidence that Norman was not
in default in failing to probate Patricia’s will but asserted that she, not Norman, is the “applicant”
in Section 256.003(a), and that she was not “in default” because she offered the will for probate only
a month after discovering it. The trial court granted the Butlers’ motion for summary judgment and
dismissed Linda’s application to probate Patricia’s will.
3
See TEX. R. APP. P. 60.2(f) (“The Supreme Court may: . . . (f) vacate the lower court’s judgment and remand
the case for further proceedings in light of changes in the law.”).
2
The court of appeals affirmed.4 The court concluded that as the executor of Norman’s estate,
Linda stood in the estate’s shoes, and Norman’s default in probating Patricia’s will therefore applied
to her.5 Even if Linda had applied to probate the will in her individual capacity as a devisee of a
devisee, the court added, Norman’s default would still bar her application under Faris v. Faris.6 The
court acknowledged that the courts of appeals have split on whether Faris requires such a result and
concluded that it does.7
Two justices concurred on separate grounds. Justice Christopher urged the Court to grant
review and revisit Faris.8 She expressed concerns that an applicant in Linda’s position could never
produce admissible evidence that a deceased devisee was not in default and also that the result of
the court’s decision—that Patricia’s estate must be distributed according to the laws of
intestacy—failed to honor Patricia’s intent in devising her estate to Norman.9 Justice Jewell, by
contrast, opined that the result compelled by Faris “effectuate[d] a deliberate and considered
legislative policy choice to prioritize timely resolution of estates over the specific intentions of any
4
531 S.W.3d 337.
5
Id. at 341–342.
6
Id. at 343.
7
Id. at 342–343.
8
Id. at 345 (Christopher, J., concurring).
9
Id.
3
particular testator.”10 “[A]ccepting Linda’s view”, he said, “would effectively nullify the legislative
balancing of interests inherent in Texas Estates Code section 256.003(a).”11
We granted Linda’s petition for review.12
II
The four-year limitations period in Section 256.003(a) has been part of Texas statutory law
since at least 1879. Then Article 1828 of the Revised Civil Statutes provided: “No will shall be
admitted to probate after the lapse of four years from the death of the testator, unless it be shown by
proof that the party applying for such probate was not in default in failing to present the same for
probate within the four years aforesaid”.13 Today Section 256.003(a) of the Estates Code is
substantially the same:
Except as provided by Section 501.001 with respect to a foreign will, a will may not
be admitted to probate after the fourth anniversary of the testator’s death unless it is
shown by proof that the applicant for the probate of the will was not in default in
failing to present the will for probate on or before the fourth anniversary of the
testator’s death.14
The first question presented is: Who is the applicant in this case?
The Estates Code authorizes three categories of persons to apply to probate a will: the
testator’s executor, “an independent administrator designated by all of the distributees of the
10
Id. at 346 (Jewell, J., concurring).
11
Id.
12
61 TEX. SUP. CT. J. 1828 (Aug. 31, 2018).
13
TEX. REV. CIV. STAT. art. 1828 (1879).
14
§ 256.003(a) (emphases added).
4
decedent” in accordance with the Code, and “an interested person”.15 Interested person is, in turn,
defined as “an heir, devisee, spouse, creditor, or any other having a property right in or claim against
an estate”.16 Linda’s application alleges that she qualifies as an interested person “in her capacity
as Executrix of . . . [Norman’s] Estate”. Norman’s estate qualifies as an interested person because
Norman is Patricia’s heir, devisee, and spouse.17 Linda has never pleaded that she qualifies as an
interested person in her individual capacity as Norman’s devisee.
The Butlers argue that Linda’s pleadings are determinative. We agree in part. The Legislature
has decreed that “[t]he rights, powers, and duties of executors and administrators are governed by
common law principles to the extent that those principles do not conflict with the statutes of this
state.”18 And the common law is clear: an executor “‘stands in the shoes’ of the decedent.”19 In other
words, an executor has no greater powers, rights, or privileges than the decedent whose estate he or
she represents. We therefore agree with the court of appeals and the Butlers that “[b]ecause Linda
is standing in the shoes of Norman’s estate, the default inquiry must focus on Norman.”20 It is
undisputed that there is no “proof that [Norman] was not in default” in failing to probate Patricia’s
15
§ 256.051(a).
16
§ 22.018(1).
17
Id.
18
§ 351.001.
19
Smith v. O’Donnell, 288 S.W.3d 417, 421 (Tex. 2009) (quoting Belt v. Oppenheimer, Blend, Harrison & Tate,
Inc., 192 S.W.3d 780, 787 (Tex. 2006)).
20
531 S.W.3d 337, 342.
5
will within four years of her death.21 Linda is therefore barred from probating Patricia’s will in her
capacity as Norman’s executor.
III
But that holding does not end our inquiry because Linda would qualify as an interested
person in her own right as Norman’s devisee. The statutory definition of interested person includes
anyone “having a property right in or claim against an estate”.22 We have reframed this standing test
broadly as whether “the proponent[] possesse[s] a pecuniary interest to be benefited and affected by
the probate of the will and one which would . . . be[] materially impaired in the absence of its
probate.”23 Because Linda stands to inherit Norman’s property, and Patricia’s will leaves her
property to Norman, Linda has a pecuniary interest that would be affected by the probate of
Patricia’s will.24
The court of appeals held that even if Linda had applied to probate Patricia’s will in her
individual capacity, Norman’s conduct must still be considered in determining the existence of a
default because “Linda’s right to probate Patricia’s will is dependent on the existence of that right
in Norman”.25 The court acknowledged “a split among the courts of appeals regarding whether any
21
§ 256.003(a).
22
§ 22.018(1).
23
Logan v. Thomason, 202 S.W.2d 212, 216 (Tex. 1947).
24
Cf. Dickson v. Dickson, 5 S.W.2d 744, 747 (Tex. Comm’n App. 1928) (holding that the widow of one of the
testator’s devisees was an interested person with standing to contest the probate of the testator’s will).
25
531 S.W.3d at 344.
6
default by a devisee under a will is attributed to that devisee’s own heirs or devisees”,26 but it
nonetheless followed Faris v. Faris, as it was bound to do.27 One court has characterized the caselaw
on this issue as being in “considerable disarray”,28 so we untangle it here.
A
The facts in Faris were that George devised his entire estate to his wife, Sophia, who died
19 years later, never having probated George’s will.29 Sophia’s will left the bulk of her estate to her
and George’s son, Ellsworth, whom she also named as executor.30 When Ellsworth offered both
wills for probate, his brother Cecil contested the probate of George’s will.31 The case was tried to
the court, which ruled for Cecil.32
The testimony showed that Sophia had possession of George’s will until her death and that
she kept it in a lockbox at her bank.33 The trial court “conclude[d] as a matter of law that” Sophia
26
Id. at 342.
27
Id. at 343.
28
In re Estate of Campbell, 343 S.W.3d 899, 906 (Tex. App.—Amarillo 2011, no pet.).
29
138 S.W.2d 830, 831 (Tex. App.—Dallas 1940, writ ref’d). Faris was decided by the court of appeals, but
we refused the application for writ of error, giving the court’s opinion the precedential value of one of our own. See
Texas Rules of Form: The Greenbook app. E (Texas Law Review Ass’n ed., 14th ed. 2018) (explaining that between
1927 and 1997, the notation “writ refused” meant that the Court had determined that the “[j]udgment of the court of civil
appeals [was] correct”, that the Court was “satisfied that the opinion ha[d] correctly declared the law”, and that “[s]uch
cases have equal precedential value with the . . . Court’s own opinions”); cf. TEX. R. APP. P. 56.1(c) (as of September
1, 1997, a “petition refused” notation has the same meaning).
30
Faris, 138 S.W.2d at 831.
31
See id.
32
See id.
33
Id.
7
had “abandoned any right she might have [had] to claim any property” under George’s will and “that
it would be against the public policy of this State to allow a will to be probated some nineteen years
after the death of the testator, especially when it is shown that the party having the right to probate
the same had it in possession at such time.”34
On appeal, Ellsworth pointed to the statutory language.35 Ellsworth argued that “having
offered his father’s will for probate almost immediately upon his mother’s death, and having no
interest therein prior to such time,” he—the party applying for probate—was not in default.36
Without addressing Ellsworth’s statutory argument head on, the court of appeals responded that the
result of Sophia’s “conclusive abandonment” of her right to probate George’s will was that “she had
no right, title, or interest in his estate to bequeath [to Ellsworth], except such as [had] accrued to her
[through intestacy] in the absence of a will.”37 The court relied on a 1923 decision of the court of
appeals, Matt v. Ward.38 Matt, like Faris, did not analyze the statutory language.
34
Id.
35
See id. at 832.
36
Faris, 138 S.W.2d at 832.
37
Id.
38
Id. (stating that Ellsworth’s “rights [were] more appropriately controlled by” Matt v. Ward, 255 S.W. 794
(Tex. App.—Fort Worth 1923, writ ref’d)). Although we refused the application for writ of error in Matt, prior to 1927
that action did not give the court’s opinion the precedential value of one of ours. See The Greenbook, supra, note 29.
8
The other courts that have addressed this issue have almost uniformly taken the position that
a devisee’s default is imputed to his or her own devisees and heirs, most following Matt or Faris.39
Two have offered different analyses.
In St. Mary’s Orphan Asylum of Texas v. Masterson, which preceded both Faris and Matt,
the testator’s devisees agreed not to probate his will and then sold land that was devised to them
under the will to unrelated third parties.40 Twenty-one years after the testator’s death, the third-party
purchasers learned of the will and applied to probate it in order to perfect their titles.41 The court of
appeals held that the devisees’ default did not prevent the purchasers from probating the will.42 The
court recognized that “a purchaser from a devisee is a person entitled to have a will probated when
the same constitutes an essential link in his title” and that this “right . . . is not dependent on the
existence of the same right in their grantors, the devisees.”43 But then it pointed to the plain language
of the statute—“[i]t is to be borne in mind that it is the applicant’s ‘default’ that the statute has
39
See Abrams v. Ross’ Estate, 250 S.W. 1019, 1022 (Tex. Comm’n App. 1923) (“If any of the children of [the
testator], the immediate legatees under said will, knew or by the exercise of ordinary care could have known of the
existence thereof, he or she was in default. If any such legatee afterwards died, such default would bar his or her
descendants from any right to have such will probated.”); Schindler v. Schindler, 119 S.W.3d 923, 930 (Tex.
App.—Dallas 2003, pet. denied) (after recognizing that Jodie, a devisee of the testator’s will, was in default, holding that
“Mary, as a devisee of Jodie, stands in no better position than Jodie” and was therefore in default herself (citing Faris,
Matt, and Brown v. Byrd, 512 S.W.2d 758 (Tex. App.—Tyler, no writ))); Brown, 512 S.W.2d at 760–761 (“[I]f any
devisee was in default, such default would bar his or her descendants from any right to have such will probated.” (citing
Faris, Matt, and Abrams)).
40
122 S.W. 587, 589 (Tex. App.—San Antonio 1909, writ ref’d).
41
See id.
42
See id. at 590.
43
Id.
9
reference to”—and reasoned that the purchasers themselves were not in default.44 “We think an
applicant for the probate of [a] will must be judged by his own conduct and circumstances in
determining whether or not he is in default”, the court explained.45
More recently, the Seventh Court of Appeals rejected the Faris imputation rule outright.46
The court stated that now-Section 256.003(a) “has repeatedly been interpreted as providing that the
default of another does not preclude a non-defaulting applicant from offering a will for probate as
a muniment of title”, yet it cited only Masterson and another court of appeals decision involving an
applicant who was a direct devisee of the testator.47 The court attempted to distinguish Faris and
similar decisions on their facts and then announced a new standard that has no basis in the statutory
text: “[A] non-defaulting proponent [may] offer a will for probate more than four years after the
death of the testator when intervening events would not work an injustice or frustrate the intent of
the testator”.48
That is the state of the caselaw before us: The only controlling authority from this Court,
Faris, was not based on the statutory text. Of the remaining authorities on point, only Masterson
was. Most court of appeals cases have followed Faris or applied the same rule. One has created a
new rule in which courts must discern injustice and the testator’s intent.
44
Id.
45
Id. at 591.
46
See In re Estate of Campbell, 343 S.W.3d 899 (Tex. App.—Amarillo 2011, no pet.).
47
Id. at 903 (citing In re Estate of Williams, 111 S.W.3d 259, 263 (Tex. App.—Texarkana 2003, no pet.);
Masterson, 122 S.W. at 591).
48
Id. at 906–908.
10
B
With that backdrop, we now decide whether Norman’s default would bar Linda from
probating Patricia’s will in her individual capacity. Linda argues that imputing Norman’s default to
her would be at odds with the statutory text. The Butlers urge us to adhere to Faris. We believe that
Linda has the better argument.
The statutory standard for permitting or disallowing probate of a will after the four-year mark
is whether there is proof that “the applicant for the probate of the will was not in default”.49 There
is no mention of potential default by anyone else. As we have said countless times, courts must
“construe [a] statute’s words according to their plain meaning”50 because “changing the meaning of
[a] statute by adding words to it . . . is a legislative function, not a judicial function.”51 Twenty years
before refusing the writ in Faris, we explained:
Courts must take statutes as they find them. More than that, they should be willing
to take them as they find them. They should search out carefully the intendment of
a statute, giving full effect to all of its terms. But they must find its intent in its
language, and not elsewhere. They are not the law-making body. They are not
responsible for omissions in legislation. They are responsible for a true and fair
interpretation of the written law. It must be an interpretation which expresses only
the will of the makers of the law, not forced nor strained, but simply such as the
words of the law in their plain sense fairly sanction and will clearly sustain.52
49
§ 256.003(a) (emphasis added).
50
State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 270 (Tex. 2017).
51
City of Rockwall v. Hughes, 246 S.W.3d 621, 631 (Tex. 2008).
52
Simmons v. Arnim, 220 S.W. 66, 70 (Tex. 1920).
11
The Masterson court got it right.53 We overrule Faris v. Faris54 and disapprove of the cases
that have affirmed Faris’ imputation rule.55
But we also reject the test applied by the Seventh Court of Appeals that permits inquiry into
whether permitting the late probate of a will would “work an injustice or frustrate the intent of the
testator”.56 In many—if not most—cases, the equities will be unclear. This one is a perfect example.
Linda alleges that between the time of Patricia’s death in 2006 and Linda’s application to probate
Patricia’s will in 2015, the Butlers “took absolutely no action to administer their mother’s estate”
but instead “lay in wait while assuming no responsibility” for any of the burdens associated with
probate.57 The Butlers charge that Linda is trying to “claw[]-back [their intestate] inheritance nine
years after the fact”58 and suggest that allowing their mother’s property to pass to their stepfather’s
ex-wife would be ipso facto unjust. “Equity, like beauty, is often in the eye of the beholder.”59 The
statutory text as written prevents litigation over the equities of a particular case and the inconsistent
and unpredictable results that inevitably follow.
53
See 122 S.W. 587, 590 (Tex. App.—San Antonio 1909, writ ref’d) (“It is to be borne in mind that it is the
applicant’s ‘default’ that the statute has reference to.”).
54
138 S.W.2d 830 (Tex. App.—Dallas 1940, writ ref’d).
55
Schindler v. Schindler, 119 S.W.3d 923, 930 (Tex. App.—Dallas 2003, pet. denied); Brown v. Byrd, 512
S.W.2d 758, 760–761 (Tex. App.—Tyler 1974, no writ); Matt v. Ward, 255 S.W. 794, 795 (Tex. App.—Fort Worth
1923, writ ref’d); Abrams v. Ross’ Estate, 250 S.W. 1019, 1022 (Tex. Comm’n App. 1923).
56
In re Estate of Campbell, 343 S.W.3d 899, 907–908 (Tex. App.—Amarillo 2011, no pet.).
57
Pet’r Br. 25.
58
Resp’ts Br. 23.
59
In re Ferguson, No. 10-81401, 2011 WL 5910659, at *3 (Bankr. C.D. Ill.).
12
We hold that under Section 256.003(a), when an applicant seeks late-probate of a will in her
individual capacity, only the applicant’s conduct is relevant to determining whether she “was not
in default”.
IV
Under the analysis we adopt today, if Linda had applied to probate Patricia’s will in her
individual capacity as Norman’s devisee, rather than in her capacity as Norman’s executor,
Norman’s default would be irrelevant to determining Linda’s entitlement under Section 256.003(a)
to probate Patricia’s will more than four years after Patricia’s death. But she did not, and we “cannot
confer a capacity on [a] party that has not been pleaded.”60
We can, however, “vacate the lower court[s’] judgment[s] and remand the case for further
proceedings in light of changes in the law”,61 and because today we overrule Faris v. Faris, we
choose to do so here.62 Accordingly, we vacate the judgments of the lower courts and remand this
case to the trial court to give Linda an opportunity to amend her pleadings to pursue probate of
Patricia’s will in her individual capacity.
Nathan L. Hecht
Chief Justice
Opinion delivered: April 12, 2019
60
Werner v. Colwell, 909 S.W.2d 866, 870 (Tex. 1995).
61
TEX. R. APP. P. 60.2(f).
62
See In re Jane Doe 2, 19 S.W.3d 278, 283–284 (Tex. 2000) (vacating both lower courts’ judgments and
remanding for a new evidentiary hearing in the trial court in light of a decision clarifying the governing legal standards
that had issued after the trial court hearing in the underlying case).
13