McKenna Lynn Kuhr v. Ronald Smith

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-20-00416-CV
NO. 03-20-00425-CV
NO. 03-20-00583-CV
NO. 03-21-00114-CV

McKenna Lynn Kuhr, Appellant

v.

Ronald Smith, Appellee

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NOS. C-1-PB-16-000575 & C-1-PB-19-001840
THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

MEMORANDUM OPINION

In this Court’s cause numbers 03-20-00416-CV, 03-20-00425-CV, and

03-20-00583-CV, which have been consolidated for briefing and review, McKenna Lynn Kuhr

challenges the probate court’s orders granting Ronald Smith’s traditional motions for summary

judgment on bill of review and presenting will for probate and its order admitting the will

of Terry Smith (Decedent) to probate as a muniment of title only. In cause number

03-21-00114-CV, Kuhr appeals from the probate court’s order on her motion to suspend

enforcement of the order admitting the will to probate and to set appellate security.

In its order granting summary judgment on bill of review, the probate court

vacated portions of its order closing administration of Decedent’s estate. In the estate

proceeding, the probate court’s summary judgment ordered that the will was timely presented,
and after a bench trial, the probate court ordered the will to be admitted to probate as a muniment

of title only.

Because we conclude that we do not have jurisdiction over this Court’s cause

number 03-21-00114-CV, we dismiss that appeal. Because we conclude that the probate court

did not err in concluding that the will was timely presented for probate and that Ronald Smith

(Smith) was not in default, we conclude that the probate court did not err in admitting the will to

probate as a muniment of title only and affirm the challenged orders in the consolidated appeals. 1

BACKGROUND 2

On July 20, 2014, Decedent died leaving behind her spouse Smith and her only

child Kuhr from another relationship. Decedent’s October 27, 2005 will (the will) designated

Smith as the sole beneficiary. 3

In early 2016, the Bank of New York Mellon (the Bank), a secured creditor and

lienholder on the home owned by Decedent and Smith, sought to foreclose on the home and filed

an application for letters of administration and to declare heirs, initiating the probate court’s

cause number C-1-PB-16-000575 (the estate proceeding). In May, the court-appointed attorney

ad litem for the estate filed an objection to a scheduled hearing with a copy of the will. In the

objection, the attorney ad litem states:

1 We granted a partial temporary stay pending our review of the merits of Kuhr’s
pending Rule 24.4 motions. See Tex. R. App. 24.4. Given our disposition of the appeals, we
deny the pending motions and lift the temporary stay.
2The facts recited are taken from the summary judgment evidence in the underlying
proceedings and the evidence presented during the bench trial in the estate proceeding.
3 Kuhr concedes that Smith is the sole beneficiary under the will’s terms. In her
appellant’s brief, she states: “If [Decedent’s] will were to be admitted to probate, the will gives
all of [Decedent’s] real and personal property to [Smith].”
2
 [She] TODAY was provided a copy of a will for [Decedent] (SEE EXHIBIT A)
identifying her heirs and also listing her family as her choice for her estate
representatives. Specifically she gave her property to her husband 100%, and
appointed him as the Estate representative. . . .

Based on this new information and that the Attorney for the Bank/Applicant is in
possession of the original will, the Ad Litem believes this proceeding and
application pending MUST be amended. There is a will, and the decedent did
identify her heirs and whom should receive her estate. It would be inappropriate
to ignore this will, and proceed to appoint the current Bank/Applicant who desires
to foreclose on the property and be in charge of the Estate, until and unless the
heirs under the will waive that right, and also if the proceeding remains a heirship
proceeding they also are entitled to seek appointment.

. . . It appears that the family members, especially the Decedent’s husband, as
surviving spouse is confused over the legal probate process.

About the same time that the attorney ad litem filed her objection, the Bank

amended its application, sought to probate the will, and attached a copy of the will to its

application. At that point, the Bank believed that it had the original of the will. In July, after

learning that it did not possess the original, the Bank filed a second amended application for

letters of dependent administration, representing that to the best of its “knowledge, Decedent

may have left a valid Last Will and Testament dated October 27, 2005,” that a copy of the will

was filed with the court in May 2016, that the Bank was unaware of the whereabouts of the

original or if it still existed, and that the “Administrator will either Probate the Will or file an

Application to Determine Heirship.”

Following a hearing in August, the probate court found that administration of the

estate was needed, granted letters of dependent administration, and ordered the parties to

schedule a hearing to determine Decedent’s heirs or to probate the will:

It is further ORDERED that a determination of heirship hearing or a Will probate
hearing shall be scheduled by the parties for a date not later than November 18,
2016, and that, if a determination of heirship is being sought, the attorney for the

3
 Dependent Administrator shall submit an heirship setting request form to the
Court no later than November 1, 2016 and shall have completed before that time
all requirements to be able to completely fill out the request.

It is further ORDERED that the Dependent Administrator shall file an application
for determination of heirship or an application to probate the Decedent’s Will and
shall complete all necessary documents in sufficient time prior to the hearing so
that the Court can hear the application by the date stated above.

A hearing on heirship or to probate the will, however, had not occurred when in January 2018,

the probate court signed an order that approved the account for final settlement, discharged the

dependent administrator, and closed the administration of the estate. In the January 2018 order,

the probate court decreed that there was “no property remaining in the Estate.” The Bank had

completed the foreclosure of the home.

Decedent at the time of her death, however, owned assets besides the home,

including non-producing mineral interests and jewelry. 4 Smith signed leases concerning the

mineral interests with an oil and gas company (the company) after Decedent’s death, including

a lease in September 2016. The company made bonus payments to Smith in February and

March 2018 but notified Smith around August 2019 that the will had not been admitted to

probate during the estate proceeding and withheld further payments. In response, Smith filed a

petition for bill of review in September 2019, initiating the probate court’s cause number

C-1-PB-19-001840 (bill-of-review proceeding). Smith sought to revise and correct the probate

court’s January 2018 order in the estate proceeding “so that the mineral interest can be

probated.” See Tex. Est. Code § 55.251 (authorizing interested person within two years to file

bill of review to have order or judgment revised and corrected on showing of error in order or

judgment in probate proceeding). In October 2019, Smith filed the original of the will and an

4Smith testified at the bench trial in the estate proceeding that Decedent had jewelry that
Kuhr possessed that was “probably worth $100,000.”
4
application to admit the will to probate as a muniment of title in the estate proceeding. See id.

§ 257.001 (authorizing court to admit will to probate as muniment of title if court is satisfied that

will should be admitted to probate and that testator’s estate does not owe unpaid debt other than

debt secured by lien on real estate or finds for another reason that there is no necessity for

administration of estate). And in January 2020, Smith filed an amended petition in the

bill-of-review proceeding, seeking to revise and correct the probate court’s January 2018 order

and to reopen the estate proceeding to allow Smith to attempt to probate the will as a muniment

of title.

Kuhr contested Smith’s application to probate the will in the estate proceeding

and his petition in the bill-of-review proceeding. In both proceedings, Smith filed traditional

motions for summary judgment, Kuhr filed responses, and the parties filed summary judgment

evidence. In July 2020, the probate court granted Smith’s motions in both proceedings. In its

summary judgment order in the bill-of-review proceeding, the probate court found that

undistributed property remained in the estate, concluded there was substantial error in its

January 2018 order “in that it states ‘there is no real property remaining in the estate’ and ‘there

is no property remaining in the Estate,’” granted Smith’s petition for bill of review, and vacated

its January 2018 order to the extent of its erroneous statements. In its summary judgment order

in the estate proceeding, the probate court determined as a matter of law that the will was

presented for probate on or before the fourth anniversary of Decedent’s date of death. See id.

§ 256.003(a) (generally requiring will to be presented for probate before fourth anniversary of

testator’s death). The evidence established that Decedent died in July 2014, that the Bank filed

an application to probate the will in May 2016, and that the Bank and the attorney ad litem filed

copies of the will in May 2016.

5
 A bench trial in the estate proceeding occurred in September 2020 on Smith’s

application to admit the will to probate as a muniment of title. The witnesses included Smith, 5

who testified that:

• the Bank filed an application to probate the will in May 2016;

• Smith did not consult with an attorney about probating the will or
Decedent’s estate before the administration of the estate closed in
January 2018;

• Smith “believed” that the will had been probated during the
estate proceeding 6;

• Decedent owned mineral interests and jewelry when she died;

• Smith negotiated leases on the mineral interests after she died and
received two bonus payments in February and March 2018;

• in 2019, Smith became aware that the will had not been probated when he
“got a phone call” from the company that “they realized that [the will] had
never been probated” and they were withholding payments;

• Smith never intended to and did not ever abandon his efforts to probate the
will and “everything was taken out of his hands when the independent
[sic] administrator took over”;

• the original was the same will as the copy that was filed with the court in
May 2016; and

• Smith “obviously” did not understand the probate process.

Smith further testified that Decedent’s estate did not owe unpaid debt other than debt secured by

liens on real estate and that there was no necessity to further administer the estate. On cross

examination, Smith admitted that he did not tell the administrator or the court about the mineral

5 Smith also called two other witnesses who offered evidence to support the validity of
the will.
6 Smith testified, “I thought the will had been probated” and that he did not take steps to
probate the will because he “thought it was being probated.”
6
interests before the administration of the estate was closed in January 2018 but explained that

“[t]here was nothing going on with those mineral rights.” He also denied that he was aware that

the estate closed without probating the will or that he was required to tender the original of the

will to the court or the administrator. He testified that “[t]hey didn’t ask for the original.”

Kuhr’s witnesses were the attorney who represented the Bank “to get [his] client’s

claim paid or foreclose on the house” and the dependent administrator. The attorney testified

that Smith provided a copy of the will, not the original, and that because they did not have the

original, the Bank proceeded with its request to have the dependent administrator appointed. At

the time the Bank filed the copy of the will, the attorney testified that the Bank thought that it

was the original. After the Bank determined that it did not have the original, the bank amended

its application and did not attempt to probate the will, but it continued to reference the will in its

application. The dependent administrator testified that he asked the court to close the estate

without conducting an heirship or probate matter because there were insufficient assets to satisfy

the mortgage company. Prior to the closing of the administration of the estate, he was unaware

that Decedent owned jewelry and mineral interests when she died but believed that the closing

“[left] open the opportunity for somebody else to come in and administer the estate if they

find assets.”

The exhibits included the original of the will, a deposition by written questions of

a “landman” with attached notes from alleged conversations with Smith in 2017, the May 2016

objection of the attorney ad litem in the estate proceeding, and an August 2016 letter from the

paralegal of the dependent administrator that was addressed to family members, including Smith

and Kuhr. The paralegal notified the family of the administrator’s appointment and asked for

information about a will and any assets owned by Decedent. The landman’s hand-written notes

7
state next to “7/11/2017” that “account of final settlement but no probate closure as to minerals”

and next to “7/13” that “called and alerted Mr. Smith of confusion.” On “contact” reports, the

landman handwrote next to the dates:

(i) “8/1,” that an attorney reviewed the foreclosure and estate proceedings
and opined that the will “had not technically and properly been probated”
and that the landman “called and explained to Mr. Smith that once the
current case/cause closed (next couple of weeks) he needed to have [the
will] properly probated”;

(ii) “9/7,” “Judge denied the bank’s probate”;

(iii) “12/26,” “w/i next few weeks probate is supposed to be finalized (he will
show up in court for proceedings)”; and

(iv) “1/24/2018,” “Mr. Smith called to notify [him] that the probate for
[Decedent] has been finalized in Travis County.”

Smith admitted that the landman talked to him around August 1, 2017, and testified

inconsistently about what the landman told him, but he consistently testified that he believed that

the will had been probated when the administration of the estate closed. 7

7 During cross examination, Smith testified:

Q. So what you’re saying is that on August 1st of 2017 that [the landman] did not
call you and inform you that an attorney . . . had reviewed all the pleadings in this cause as to
[Decedent’s] estate and that he was of the opinion that [the will] had not been properly probated?

A. No, I did get that telephone call and, yes, that is correct.

Q. Okay. And in addition to that he went on to tell you that if the administrator’s
request to close the case and discharge him happened pursuant to the request in the motion the
administrator filed, that you would have to go back yourself and probate [the will]? He told you
that too, didn’t he?

A. I don’t recall. Don’t recall.

Q. Well, specifically I asked you in your—in your deposition, “Did he go on to
explain that if the Court just granted the relief in Exhibit 4 [motion to close estate] that the case
8
 The probate court took the matter under advisement, and in December 2020, the

probate court signed the order admitting the will to probate as a muniment of title only. See id.

§ 257.001; see also id. § 257.102 (describing authority of certain persons who are acting in

accordance with order admitting will to probate as muniment of title). The probate court also

entered findings of fact and conclusions of law. 8 These appeals followed.

In cause number 03-21-00114-CV, Kuhr appeals from the probate court’s order

that partially suspended enforcement of the probate court’s order admitting the will to probate

and setting appellate security (partial suspension order). Cause number 03-20-00416-CV is from

the probate court’s order granting Smith’s motion for summary judgment on presenting the will

for probate in the estate proceeding, cause number 03-20-00425-CV is from the probate court’s

order granting Smith’s summary judgment in the bill-of-review proceeding, and cause number

would close with no determination or—of the probate of the will?” And you answered that day,
“Yes.” “And that you would need to do that?” And you said, “Yes, yes.” Is that still your
truthful testimony?

A. Yes. I would say it is, yes.

Q. Okay. So you—you were aware before the Court entered the order closing the
estate and dismissing the administrator that he was not asking to probate the will, and if that
happened the—the estate was going to close with no probate?

A. No, I was not aware. Absolutely not.

Q. Well, you just admitted it a minute ago —

A. Well, I’m sorry, but I was not aware. Not aware. I thought—I thought that it had
been probated, period.

Smith admitted that the company told him that the will had not been probated, but he testified
that notification occurred after the estate was closed.
8 Kuhr also requested additional findings of fact and conclusions of law, but no
additional findings or conclusions were filed.
9
03-20-00583-CV is from the bench trial and resulting order admitting Decedent’s will to probate

as a muniment of title only in the estate proceeding.

ANALYSIS

03-21-00114-CV

We begin with cause number 03-21-00114-CV because we lack jurisdiction over

this appeal. On March 15, 2021, the clerk of this Court advised Kuhr that it appeared that this

Court did not have jurisdiction over her appeal and requested a response. Smith also filed a

motion to dismiss the appeal because the partial suspension order was not final or appealable

and, thus, this Court lacked jurisdiction. Kuhr filed a response, but she has not demonstrated this

Court’s jurisdiction over this appeal. 9

The partial suspension order does not dispose of parties or claims and, by its

express terms, is only effective during the pendency of Kuhr’s appeals. Rule 24.4 provides a

procedural mechanism for appealing this type of order by filing a motion with the appellate court

in a pending appeal, but it does not provide an independent basis for appellate jurisdiction. See

Tex. R. App. P. 24.4 (authorizing review by motion filed in court of appeals with jurisdiction or

potential jurisdiction over appeal from judgment in case); Standiford v. CitiMortgage, Inc.,

No. 03-15-00542-CV, 2015 Tex. App. LEXIS 9152, at *1 (Tex. App.—Austin Aug. 28, 2015, no

9 In her notice of appeal, Kuhr also appeals “all other orders and rulings of the probate
court” in the estate proceeding. She, however, does not identify the “other orders and rulings,”
and her appeal in cause number 03-20-00583-CV is from the probate court’s order admitting the
will to probate. See Tex. Est. Code § 32.001(c) (“A final order issued by a probate court is
appealable to the court of appeals.”); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001) (explaining that appeal may only be taken from final judgment that disposes of all pending
parties and claims in record and that only certain proceedings, like some probate and
receivership proceedings, allow for multiple judgments on certain discrete issues); Crowson
v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995) (adopting test for determining when phase of
probate proceeding is final and appealable).
10
pet.) (mem. op.) (dismissing for want of jurisdiction direct appeal from order setting supersedeas

bond); Transcontinental Realty Inv’rs, Inc. v. Orix Capital Mkts. LLC, 470 S.W.3d 844, 848

(Tex. App.—Dallas 2015, no pet.) (observing that Rule 24.4 does not provide independent basis

for appellate jurisdiction); In re Bittinger, No. 14-10-00697-CV, 2010 Tex. App. LEXIS 6858, at

*1 (Tex. App.—Houston [14th Dist.] Aug. 23, 2010, orig. proceeding) (per curiam) (mem. op.)

(explaining that relator’s remedy was to file Rule 24.4 motion in pending appeal). Thus, we

grant Smith’s motion and dismiss this Court’s cause number 03-21-00114-CV for lack

of jurisdiction.

Consolidated Appeals

In the three consolidated appeals, Kuhr raises four issues. She contends that the

probate court erred when it: (i) concluded that the will had been presented for probate within

four years of Decedent’s death; (ii) admitted the will for probate when it did not require Smith to

prove that he was not in default in failing to probate the will as required by section 256.003(a) of

the Texas Estates Code; (iii) found that Smith was not in default in failing to probate the will;

and (iv) admitted Decedent’s will to probate as a muniment of title. Kuhr argues that because the

will was not timely presented for probate, Smith had to prove that he was not in default in failing

to probate the will and that he failed to do so.

Kuhr also expressly challenges the probate court’s findings of fact 5, 6, 7, 11, 12,

13, 19, 21, 22 and conclusions of law 24, 27, 28, 29, 33, 34, 35, 40, and 42, many of

which overlap:

11
Findings of Fact

***

5. Applicant’s petition for bill of review, including amendments thereto, and
Applicant’s application to probate Decedent’s Will, including amendments
thereto, constitute a continuation of the original proceedings filed by the Bank of
New York Mellon and the dependent administrator of Decedent’s Estate in this
Cause No.

6. On July 13, 2020, this Court granted Applicant’s (1) Traditional Motion
for Summary Judgment on Bill of Review in Cause No. C-1-PB-19-001840,
which vacated portions of the Court’s January 19, 2018, Order Approving
Account for Final Settlement, Closing Estate, and Discharging Dependent
Administrator in this Cause No. and (2) Traditional Motion for Summary
Judgment on Presenting Will for Probate in this Cause No., which determined that
Decedent’s Will was “presented for probate” on or before the fourth anniversary
of Decedent’s date of death.

7. As a result of the summary judgment orders, the Court determined that
Applicant was not required to prove that he was not in default in failing to present
the Will for probate on or before the fourth anniversary of Decedent’s date of
death. McKenna Lynn Kuhr (“Respondent”), however, alleged that Applicant
was still required to prove that he was not in default in failing to present the Will
for probate on or before the fourth anniversary of Decedent’s date of death.

***

11. Decedent died on July 20, 2014, and four years did not elapse between the
date of Decedent’s death and the filing of the May 20, 2016, application to
probate Decedent’s Will. Applicant’s applications to probate Decedent’s Will,
including his Third Amended Application for Probate of Will as Muniment of
Title, constitute a continuation of the original proceedings filed by the Bank of
New York Mellon and the dependent administrator of Decedent’s Estate in this
Cause No.

12. Decedent’s Will is dated October 27, 2005, and it was executed with the
formalities and solemnities and under the circumstances required by law to make
it a valid will. The Will is the same will that the Bank of New York Mellon filed
for probate in this proceeding on May 20, 2016, and the Will was presented for
probate by the Bank of New York Mellon within four years of Decedent’s date
of death.

13. While the Court previously determined that Applicant was not required to
prove that he was not in default in failing to present the Will for probate on or
before the fourth anniversary of Decedent’s date of death, the Court nevertheless

12
found that Applicant was not in default for failing to present the Will for probate
on or before the fourth anniversary of Decedent’s date of death.

***

19. All the necessary proof required for the probate of the Will has been made,
and the Will is entitled to probate as a muniment of title.

20. There is real property, including mineral interests in Shelby County,
Texas, and San Augustine County, Texas, and personal property, including
jewelry, remaining in Decedent’s Estate.

21. Applicant is a beneficiary of the Will, and the Will designates Applicant
as executor of Decedent’s Estate. Applicant defended the Will, presented the
Will, and prosecuted this proceeding in good faith and with just cause.

22. This Court admitted Decedent’s Will to probate as a muniment of title on
December 4, 2020, and waived the requirement for filing an affidavit under Texas
Estates Code Section 257.103.

***

Conclusions of Law

24. On May 20, 2016, the Bank of New York Mellon filed an application to
probate Decedent’s Will, and four years did not elapse between the date of
Decedent’s death and the filing of that application to probate Decedent’s Will.

***

27. Applicant’s petition for bill of review, including amendments thereto, and
Applicant’s application to probate Decedent’s Will, including amendments
thereto, constitute a continuation of the original proceedings filed by the Bank of
New York Mellon and the dependent administrator of Decedent’s Estate in this
Cause No.

28. On July 13, 2020, this Court granted Applicant’s (1) Traditional Motion
for Summary Judgment on Bill of Review in Cause No. C-1-PB-19-001840,
which vacated portions of the Court’s January 19, 2018, Order Approving
Account for Final Settlement, Closing Estate, and Discharging Dependent
Administrator in this Cause No. and (2) Traditional Motion for Summary
Judgment on Presenting Will for Probate in this Cause No., which determined that
Decedent’s Will was “presented for probate” on or before the fourth anniversary
of Decedent’s date of death.

29. As a result of the summary-judgment orders, the Court determined that
Applicant was not required to prove that he was not in default in failing to present

13
 the Will for probate on or before the fourth anniversary of Decedent’s date of
death. [Kuhr], however, alleged that Applicant was still required to prove he was
not in default in failing to present the Will for probate on or before the fourth
anniversary of Decedent’s date of death.

***

33. Decedent died on July 20, 2014, and four years did not elapse between the
date of Decedent’s death and the filing of the May 20, 2016, application to
probate Decedent’s Will. Applicant’s applications to probate Decedent’s Will,
including his Third Amended Application for Probate of Will as Muniment of
Title, constitute a continuation of the original proceedings filed by the Bank of
New York Mellon and the dependent administrator of Decedent’s Estate in this
Cause No.

34. Decedent’s Will is dated October 27, 2005, and it was executed with the
formalities and solemnities and under the circumstances required by law to make
it a valid will. The Will is the same will that the Bank of New York Mellon filed
for probate in this proceeding on May 20, 2016, and the Will was presented for
probate by the Bank of New York Mellon within four years of Decedent’s date
of death.

35. While the Court previously determined that Applicant was not required to
prove that he was not in default in failing to present the Will for probate on or
before the fourth anniversary of Decedent’s date of death, the Court nevertheless
found that Applicant was not in default for failing to present the Will for probate
on or before the fourth anniversary of Decedent’s date of death.

***

40. All the necessary proof required for the probate of the Will has been made,
and the Will is entitled to probate as a muniment of title.

***

42. The Court admitted Decedent’s Will to probate as a muniment of title on
December 4, 2020, and waived the requirement for filing an affidavit under Texas
Estates Code Section 257.103. [ 10]

10 We address Kuhr’s challenges to the findings of fact that are necessary to resolve her
issues. See Tex. R. App. P. 47.1, .4.
14
 Standard of Review

Although Kuhr challenges the probate court’s summary judgment rulings on

appeal, the probate court’s findings of fact and conclusions of law contain the same rulings. 11 In

an appeal from a bench trial, we review a trial court’s conclusions of law de novo, affirming the

judgment on any legal theory that finds support in the evidence. See BMC Software Belg., N.V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990). A trial court’s conclusions of law may not be challenged for factual insufficiency, but we

may review the legal conclusions drawn from the facts to determine their correctness. City of

Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012); BMC Software, 83 S.W.3d at 794.

We may reverse a trial court’s judgment only if its conclusions are erroneous as a matter of law.

Condom Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 749 (Tex. App.—Dallas 2012, no pet.);

Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.—Austin

1992, no writ).

We review a trial court’s findings of fact for legal and factual sufficiency of the

evidence by the same standards applied to a jury verdict. See Ortiz v. Jones, 917 S.W.2d 770,

772 (Tex. 1996); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (describing legal sufficiency standard of

review); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency standard

of review); see also Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017)

(explaining when no-evidence challenge should be sustained, including when evidence offered to

11 In her appellant’s brief, Kuhr represents that at trial she “put on virtually the same
evidence from her summary-judgment response in support of her positions that [Decedent’s]
Will was not timely presented and of [Smith’s] default in failing to timely probate [Decedent’s]
Will.” She also states that her remedy if the probate court erred in granting summary judgment
on presentment and default would be a trial, which she already received.
15
prove vital fact is no more than scintilla); Rocor Int’l, Inc. v. National Union Fire Ins.,

77 S.W.3d 253, 262 (Tex. 2002) (explaining that scintilla of evidence exists when “evidence

furnishes some reasonable basis for differing conclusions by reasonable minds about a vital

fact’s existence”). We review the evidence in the light most favorable to the findings, crediting

favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a

reasonable factfinder could not. City of Keller, 168 S.W.3d at 807.

In a bench trial, the trial court is the sole judge of the witnesses’ credibility and

the weight to be given their testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.

1986); Seasha Pools, Inc. v. Hardister, 391 S.W.3d 635, 639 (Tex. App.—Austin 2012, no pet.).

The trial court may believe one witness, disbelieve others, and resolve inconsistencies in any

witness’s testimony. Kuhlmann, 722 S.W.2d at 697; Hardister, 391 S.W.3d at 639. We may not

substitute our judgment for that of the trier of fact merely because we reach a different

conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); Westech Eng’g, Inc.,

835 S.W.2d at 196.

Presentation of Will for Probate

Generally, “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.” Tex. Est. Code § 256.003(a). When the applicant is not in default in failing to

timely present a will, the will may be probated as a muniment of title after expiration of the

four-year period. Ramirez v. Galvan, No. 03-17-00101-CV, 2018 Tex. App. LEXIS 222, at *3

(Tex. App.—Austin Jan. 10, 2018, no pet.) (mem. op.); see also Tex. Est. Code § 257.001. “As

16
used in section 256.003(a), ‘default’ means failure to probate a will because of the absence of

reasonable diligence by the party offering the instrument.” Ramirez, 2018 Tex. App. LEXIS 222,

at *3–4 (citing In re Estate of Allen, 407 S.W.3d 335, 339 (Tex. App.—Eastland 2013, no pet.)).

The burden is on the applicant to demonstrate that he is not in default in failing to present a will

for probate. Id. at *4 (citing In re Estate of Campbell, 343 S.W.3d 899, 902 (Tex. App.—

Amarillo 2011, no pet.)).

Whether the applicant is in default is generally a question of fact. Id. “Mere

ignorance of the law does not excuse the failure to file probate proceedings within the four-year

period,” but “Texas case law is quite liberal in permitting a will to be offered as a muniment of

title after the four-year limitation period has expired.” Id. (citing In re Estate of Allen,

407 S.W.3d at 339). “Indeed, the proponent’s belief that probate was unnecessary has been

found a sufficient excuse.” See id. at *4–7 (citing cases in which courts have found that

proponent’s belief was sufficient excuse and observing that husband, who had possession and

control of his wife’s will for six years after her death, “did not offer the will for probate, not

through any lack of diligence, but because he did not realize any further act was necessary”).

Did the probate court err in concluding that the will was timely presented for probate
and admitting the will to probate without requiring Smith to prove that he was not in default?

In her first and second issues, Kuhr argues that probate court erred when it

concluded that the will was presented for probate within four years of Decedent’s death and

when it admitted the will to probate without requiring Smith to prove that he was not in default

as required under section 256.003(a) of the Texas Estates Code. The evidence established that

Smith had possession of the original of the will but did not file it with an application to probate

the will until 2019, which was more than four years after Decedent’s death; that within the four-

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year period, the attorney ad litem and the Bank filed copies of the will; and that the Bank filed an

application to probate the will with a copy of the will within the four-year period but later

amended its application to remove its request to probate the will.

Kuhr argues that no application to probate the will was pending when the estate

closed because the Bank’s amended application removed the request that the will be probated

and superseded its prior application to probate the will, see Tex. R. Civ. P. 65 (explaining that

substituted instrument generally takes place of original); Bos v. Smith, 556 S.W.3d 293, 306

(Tex. 2018) (“Amended pleadings supersede prior pleadings, and any claim not carried forward

in an amended pleading is deemed dismissed.”); that Smith cannot rely on the Bank’s

“abandoned” application to probate the will that was “superseded” by the amended application

and “no longer a part of the record”; and that in any case, the “Bank never properly pleaded to

probate a copy of [Decedent’s] Will,” as opposed to the original.

As support for her arguments that Smith cannot rely on or continue the Bank’s

“dismissed” application to probate the will and that he must prove that he was not in default,

Kuhr cites Ferreira v. Butler, 575 S.W.3d 331 (Tex. 2019). That case, however, does not

address whether an applicant may rely on another timely-filed application to establish that a will

was presented for probate within the four-year period. In that case, no applicant had presented

the will within the four-year period. Id. at 333; see also Ross’ Estate v. Abrams, 239 S.W. 705,

705–10 (Tex. Civ. App.—San Antonio 1922) (explaining that “probate” is “act or process of

proving a will” and that “present for probate” is synonymous with “file for probate” and

concluding that will was presented within four years when application was filed within four

years even though new application to probate was filed forty-five years later), aff’d sub nom.

Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex. Comm’n App. 1923). The applicant qualified in

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her individual capacity as an interested person but filed an application to probate the will in her

capacity as executor of a separate estate nine years after the decedent’s death. See Ferreira,

575 S.W.3d at 334–35 (explaining that interested person may apply to probate will in individual

capacity); see also Tex. Est. Code § 22.018(1) (defining “interested person”). In that situation,

the Texas Supreme Court held that under section 256.003(a) of the Texas Estates Code, “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.’” Ferreira, 575 S.W.3d at 338. In

other words, the court concluded that default by another applicant was not imputed to the

applicant and that on remand, she would have the opportunity to amend her pleadings to pursue

probate of the will in her individual capacity. Id.

Kuhr does not challenge the portion of the probate court’s bill-of-review order

that vacated the January 2018 order in the estate proceeding “to the extent that it states ‘there is

no real property remaining in the estate’ and ‘there is no property remaining in the Estate,’” and

she does not dispute that Smith’s petition for bill of review was timely filed and that there were

estate assets that remained undistributed when the administration of the estate was closed. 12 See

Tex. Est. Code § 55.251 (authorizing interested person by bill of review to have order rendered

by court revised or corrected on showing of error in order); Buck v. Estate of Buck, 291 S.W.3d 46,

12 For example, in her appellant’s brief, Kuhr states that “[Decedent’s] Estate closed
without determining title to or distributing her separate-property mineral interests.” Kuhr also
has not challenged the probate court’s conclusion of law 41, that concluded: “There is real
property, including mineral interests in Shelby County, Texas, and San Augustine County,
Texas, and personal property, including jewelry, remaining in Decedent’s estate.”
Her argument as to the bill-of-review proceeding is that error in that proceeding “is
overshadowed by the presentment issues presented here.” She also contends that her complaints
about error in the bill of review decision “would take the parties back to the beginning of the
proceedings for a new hearing on that issue,” which “is not a useful remedy under these
circumstances.”
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52 (Tex. App.—Corpus Christi–Edinburg 2009, no pet.) (listing elements of statutory bill of

review and explaining that purpose is to review and correct errors, “not merely to set aside

decisions, orders or judgments rendered by the probate court” (citation omitted)); see also Tex.

Est. Code § 362.001 (stating when administration of estate should be closed). In this procedural

posture, it is not dispositive that the original of the will was not filed within the four-year period

or that the Bank amended its application to remove its request to admit the will to probate.

The Bank continued to reference the will in its amended application, the attorney

ad litem filed a copy of the will within the four-year period and notified the probate court of the

need to address the will, 13 and the probate court ordered the parties to schedule a hearing to

determine heirship or to probate the will, but no hearing had occurred when the administration of

the estate was closed in January 2018. Under these circumstances, although the administration

of the estate was not reopened, the bill-of-review order’s effect was to continue the estate

proceeding, giving Smith the opportunity to file the original of the will and his application to

probate the will as a muniment of title in that proceeding. See Tex. Est. Code § 257.001

(allowing will to be probated as muniment of title when court finds that there is no necessity for

administration of estate); Woods v. Kenner, 501 S.W.3d 185, 191, 194–95 (Tex. App.—Houston

[1st Dist.] 2016, no pet.) (affirming order granting statutory bill of review, explaining

requirements for probating will as muniment of title, and allowing copy of will to be probated as

muniment of title even though estate already had been closed); see also McDonald v. Carroll,

783 S.W.2d 286, 286–88 (Tex. App.—Dallas 1989, writ denied) (reversing denial of statutory

13 In her reply brief, Kuhr argues that after the Bank filed its amended application, that
there was no longer a copy of the will that was part of the record, but the attorney ad litem also
filed a copy of the will with her objections.
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bill of review, ordering probate court to vacate order that approved final accounting, and

remanding to probate court for further proceedings).

For these reasons, we conclude that the probate court did not err in concluding

that the will was presented for probate within the four-year period or in admitting the will to

probate without requiring Smith to prove that he was not in default. See Eubanks v. Jackson,

280 S.W. 243, 244-45 (Tex. Civ. App.—Waco 1925, writ ref’d) (stating that default

question “does not arise” when probate of will was continuation of original proceeding

filed within limitations period); Abrams, 239 S.W. at 705–10; see also Townsend v. Phillips,

545 S.W.2d 898, 900 (Tex. Civ. App.—Texarkana 1977, no writ) (concluding that will was

“presented for probate” within four years even though executor did not file application within

four years because application for administration that was filed by another party “sought probate

of the will if it could be produced” and matter remained pending). Thus, we overrule Kuhr’s

first and second issues.

Did the probate court err in finding that Smith was not in default?

Assuming that the probate court erred in concluding that the will was timely

presented, Kuhr argues in her third issue that Smith failed to prove that he was not in default in

failing to present the will for probate within the four-year period. She argues that it was his own

fault and that his only evidence was his “alleged mistaken belief” that the will had been probated

and his “unfamiliarity with the probate process,” which are “no excuse.” As support, Kuhr

argues that the evidence established that: (i) Smith did not consult with an attorney during the

four-year period; (ii) he had custody of the original but did not tender it to the Bank or file it with

the probate court during the four-year period, see Tex. Est. Code § 252.201 (requiring person

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with custody of testator’s will to deliver will to clerk of applicable court); (iii) he did not tell the

dependent administrator about the mineral interests but negotiated leases on them 14; (iv) he did

not act on the landman’s advice in 2017; (v) he was aware of the “probate filings” in the estate

proceeding; and (vi) he “[m]isrepresented to the probate court, ‘twice,’ his reasons for not timely

filing his wife’s will for probate.” Kuhr characterizes Smith’s testimony that he was “confused”

and “mistakenly believed” that the will had been probated as a “false narrative,” and argues that

Smith “cannot rely on his own misrepresentations to excuse his delay in probating [the

Decedent’s] Will.”

It, however, was within the province of the probate court to determine Smith’s

credibility and to resolve the conflicts in the evidence. See Kuhlmann, 722 S.W.2d at 697;

Hardister, 391 S.W.3d at 639; see also In re Estate of Ozee, No. 06-12-00070-CV, 2012 Tex.

App. LEXIS 9690, at *7 (Tex. App.—Texarkana Nov. 26, 2012, no pet.) (mem. op.) (stating that

“[t]he trial court, as fact-finder, was the sole determiner of the credibility of the witnesses, and

we are not to invade the fact-finder’s domain” and upholding trial court’s resolution of

conflicting evidence about applicant’s belief that probate of will was not necessary). Kuhr

argues that Smith “should have objectively known” that others had not probated the will, but the

probate court, as the factfinder, reasonably could have found credible Smith’s testimony that he

thought that the will was being and had been probated, even though it was Smith’s subjective

14 Kuhr argues that Smith “concealed” the mineral interests from the dependent
administrator, but the evidence showed that the mineral interests were a matter of public record.
Copies of the leases show that they were filed in the applicable county’s public records. Smith
also testified that he and Decedent filed bankruptcy in 2011 and that the bankruptcy trustee held
the mineral interests but ultimately returned them, and the evidence showed that the dependent
administrator was aware of the bankruptcy. The dependent administrator also notified Kuhr of
the estate proceeding, asking her for information about the Decedent’s assets, but did not receive
any response from her.
22
belief that turned out to be incorrect. See In re Estate of Ozee, 2012 Tex. App. LEXIS 9690,

at *7.

Kuhr relies heavily on the landman’s handwritten notes recounting alleged

conversations with Smith in 2017 and urges that the notes establish that the landman told Smith

within the four-year period that the will had not been probated and would not be probated by the

dependent administrator, contending that the “landman’s business records establish that [Smith]

knew his wife’s will was not going to be probated before the estate was closed.” Kuhr also

argues that Smith “has advanced no argument as to why these records would not be reliable,”

that “there in fact is no reason that they would not be,” and that the landman had “no motivation”

“to create false records of his conversations with [Smith].” The landman, however, was not

called as a witness, and his notes and Smith’s testimony were equivocal. The landman’s notes

recount that he alerted Smith in July 2017 to “confusion” and in August 2017 that Smith would

need to have the will “properly probated” after the “current case/cause closed,” but he also noted

Smith’s call to him in January 2018, approximately four months later, notifying him that the

“probate for [Decedent] had been finalized.”

As to Smith’s testimony, he admitted in his deposition that he had communicated

with the landman in 2017, but he also testified that he thought the will had been probated during

the estate proceeding and, consistent with this belief and his status as the sole beneficiary under

the terms of the will, the company made two royalty payments to Smith shortly after the

administration of the estate closed. 15 Smith’s testimony about when he learned that the will had

15In her reply brief, Kuhr argues that Smith “duped the landman into paying the bonus
money” and that “it was implausible that the landman would have thought that the proceedings
that were going to be finalized was the closing of the estate without the probate of the will” but
also argues that—presumably because the landman was experienced and knowledgeable—Smith
23
not been probated—when the company told him in 2019—is also consistent with the timing of

filing his application to probate the will and petition for bill of review. See Chovanec

v. Chovanec, 881 S.W.2d 135, 137–38 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing

evidence that applicant was not aware that probate was necessary and was unaware of title

problems during period when mineral leases were executed on land and that when applicant

realized there were title problems, applicant immediately offered will for probate, and explaining

that “[t]hese excuses are generally accepted when the will is used to establish a link in the chain

of title”).

Kuhr asserts that “[n]o Texas case on default is precisely analogous to this one”

and that “Brown v. Byrd may be the most analogous fact pattern to the case at bar.” See

512 S.W.2d 753, 757 (Tex. App.—Tyler 1974, no writ). In that case, however, no applicant had

offered the will for probate within the four-year period, and the applicant was aware that the will

had not been offered for probate within the four-year period, but she waited “approximately

twenty-seven years prior to her filing application.” Id. In contrast, evidence supported that

Smith believed that the will had been probated during the four-year period and that he timely

filed a bill of review after learning that the will had not been probated.

The probate court, as the factfinder, reasonably could have credited the evidence

that Smith believed that the will had been probated in the estate proceeding and that it was

unnecessary for him to take any action before he filed his application in 2019. See In re Estate of

should have followed the landman’s advice and immediately filed his own application to probate
the will after speaking with the landman. If the probate court believed that the landman was
experienced and knowledgeable, the probate court reasonably could have found that Smith did
not “dupe” him or the company into making payments. Again, the landman was not called as a
witness to testify, and it was up to the probate court, as the factfinder, to determine the credibility
and weight to be given the conflicting or inconsistent evidence.
24
Allen, 407 S.W.3d at 340–41 (explaining that “[a] belief that probate has been accomplished is

certainly as reasonable an excuse for inaction as a belief that probate is unnecessary” and that

although it may have been “naïve” to believe that will had been probated, “lack of knowledge

regarding the probate process does not amount to an absence of reasonable diligence as a matter

of law” (quoting Norrell v. Norell, No. 05-96-00441-CV, 1997 Tex. App. LEXIS 5540, at *5

(Tex. App.—Dallas Oct. 23, 1997, no pet.) (not designated for publication))); In re Estate of

Perez, 324 S.W.3d 257, 263 (Tex. App.—El Paso 2010, no pet.) (explaining that “trial court, as

fact finder, was free to find credibility in [wife’s] version of the evidence, and conclude that she

was not in default for failing to probate [her husband’s] will within the statutory time limit”); see

also In re Estate of Jackson, No. 14-16-00519-CV, 2017 Tex. App. LEXIS 8001, at *7–8 (Tex.

App.—Houston [14th Dist.] Aug. 22, 2017, no pet.) (mem. op.) (concluding that evidence was

sufficient to support trial court’s finding that applicant was not in default where applicant

believed that he did not need to probate will “because he believed that having the will and the

deed to the Calumet property meant that the property was his” and observing that “trial court, as

the fact finder, was the judge of [applicant’s] credibility” and “entitled to credit [his]

testimony”)); cf. In re Estate of Rothrock, 312 S.W.3d 271, 274–75 (Tex. App.—Tyler 2010, no

pet.) (affirming trial court’s finding that applicant was in default for failing to probate will within

four years where applicant was “successful attorney” who “should have known that unexpected

events often happen in life” and relying on family agreement not to probate will that was in

applicant’s custody). Thus, we conclude that the evidence was sufficient to support the probate

court’s finding that Smith was not in default in failing to present the will within four years of

Decedent’s death. We overrule Kuhr’s third issue.

25
 Did the probate court err when it admitted the will to probate as a muniment of title?

In her fourth issue, Kuhr argues that the probate court erred when it admitted the

will to probate as a muniment of title.

The muniment of title statute provides that “[a] court may admit a will to probate

as a muniment of title if the court is satisfied that the will should be admitted to probate and the

court (1) is satisfied that the testator’s estate does not owe any unpaid debt, other than any debt

secured by a lien on real estate; or (2) finds for another reason that there is no necessity for

administration of the estate.” See Tex. Est. Code § 257.001. “Probating a will as a muniment of

title provides a means to probate a will quickly and cost-efficiently when there is no need for

administration of the estate.” In re Estate of Jackson, 2017 Tex. App. LEXIS 8001, at *9

(quoting In re Estate of Kurtz, 54 S.W.3d 353, 355 (Tex. App.—Waco 2001, no pet.)). “In

challenging a trial court’s decision to admit a will to probate solely as a muniment of title, the

appellant bears the burden of showing ‘a clear abuse of discretion’ by the trial court.” Id. at *8–

9. “A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference

to any guiding rules and principles.” Id. at *9.

Because we have concluded that the probate court did not err in its conclusions

and findings that the will was presented for probate during the four-year period and that Smith

was not in default, it follows that the probate court did not err when it concluded that the will

should be probated as a muniment of title only. The probate court’s unchallenged findings of

fact included:

14. On October 27, 2005, when she executed the Will, Decedent had attained
the age of 18 years of age and was of sound mind.

15. Decedent never revoked the Will.

26
 16. No child was born to or adopted by Decedent after Decedent executed the
Will. No marriage of Decedent was dissolved after the Will was made. None of
the following is named as a devisee in the Will: the state, a governmental agency
of the state, or a charitable organization.

17. There are no unpaid debts owing by Decedent’s Estate other than those
secured by liens on real estate. Decedent did not apply for and receive Medicaid
benefits on or after March 1, 2005.

18. There is no necessity for administration of Decedent’s estate.

Based on these unchallenged findings, the probate court acted within its discretion

to admit the will to probate as a muniment of title. See Tex. Est. Code § 257.001; Woods,

501 S.W.3d at 191, 194–95 (affirming order granting bill of review and concluding that will

could be probated as muniment of title); see also Kuhlmann, 722 S.W.2d at 696 (noting that

unchallenged findings of fact “are binding on an appellate court unless the contrary is established

as a matter of law, or if there is no evidence to support the finding”); McAleer v. McAleer,

394 S.W.3d 613, 620 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (concluding that

unchallenged finding was binding on appellate court where “there [was] some evidence in the

record supporting the finding”). We overrule appellant’s fourth issue.

CONCLUSION

For these reasons, we dismiss cause number 03-21-00114-CV for lack of

jurisdiction, overrule Kuhr’s issues in the consolidated appeals, and affirm the probate court’s

orders in the consolidated appeals.

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 ____________________________________
Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith

Cause number 03-20-00416-CV: Affirmed

Cause number 03-20-00425-CV: Affirmed

Cause number 03-20-00583-CV: Affirmed

Cause number 03-21-00114-CV: Dismissed for Lack of Jurisdiction

Filed: April 29, 2022

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