Nelson v. Neal

PHILLIPS, Chief Justice,

dissenting.

I dissent. The appointment of G. William Lavender as temporary administrator of Nelson’s estate was valid at the time Neal served process upon the estate, but the appointment was voidable, and the probate court should have overturned the ap*347pointment at the contested hearing because Neal failed to meet her burden of proof.

The question before this court is whether Neal complied with section 131A(b) of the Texas Probate Code. Section 131A(b) required Neal to file a verified application for appointment of a temporary administrator for the estate of Eric Nelson, including a section 82(b) application for letters of administration, stating “[t]he name and intestacy of the decedent_” Tbx.PROb.Code Ann. § 82(b) (1989) (emphasis added). Neal filed an affidavit, but did not swear as to the intestacy of Eric Nelson. In fact, Neal's sworn Application for Appointment of Temporary Administrator simply states as follows: “Applicant is unaware of any will left by Decedent, as all records regarding the Decedent’s Estate in California have been sealed by the Court_” TR. at 51 (emphasis added).

This court recognizes that Neal failed to swear unequivocally to Eric Nelson’s intestacy, yet it excuses Neal’s failure to comply with the affidavit requirements of section 82(b) by merely stating that it was “difficult” for Neal to acquire the information necessary to enable her to meet statutory affidavit requirements. At 346. The unavailability of information or the difficulty of obtaining information does not necessarily excuse an affiant from the burden of accurately swearing, under oath, to information required by statute. Texas law dictates that, unless authorized by statute, an affidavit is insufficient unless the allegations therein are direct and unequivocal, and perjury can be assigned upon it. Burke v. Satterfield, 525 S.W.2d 950, 955 (Tex.1975). An affidavit that swears to facts “to the best of the affiant’s knowledge or belief” will not suffice. See Nagelson v. Fair Park Nat’l Bank, 351 S.W.2d 925, 928 (Tex.Civ.App.—Dallas 1961, writ ref’d n.r.e.). Neal did not unequivocally swear to Nelson’s intestacy as required by section 131A, and her burden of proving intestacy under oath was not excused merely because “[t]he burden of proving intestacy under oath was difficult to meet in the instant case_” At 346.

As best I can determine, this is the first instance in Texas (or, for that matter, American) jurisprudence where a verification imposed by statute or rule has been judicially excused. This court’s apparent standard of “difficulty” will almost certainly result in great confusion and unsettle the salutory purposes served by the many verification requirements in our procedure.

The very fact that Nelson’s estate had sealed the probate proceedings in California suggested the existence of a will in California. Neal should have taken further steps, beyond simply asking the county clerk, to verify Nelson’s intestacy. Neal never inquired as to who was the administrator or executor of the estate, and she never directly asked the estate or the estate’s counsel about the existence of a will. If upon direct request, Nelson’s estate had refused to acknowledge the existence of a will, then the estate would have prevented Neal from complying with the affidavit requirements. The estate, however, did not actively interfere. Neal simply did not use due diligence in determining the existence of the California will and failed to unequivocally swear to Nelson’s purported intestacy. There is no sound reason to excuse Neal’s failure to comply with the affidavit requirements of sections 131A and 82(b) of the Texas Probate Code.

Despite the absence of proper verification, the temporary appointment was not void at the time Neal served process in the underlying litigation that led to this proceeding. The probate court appointed G. William Lavender temporary administrator on December 23, 1987, and the contested hearing was held on January 13,1988. According to section 131A(i) of the Texas Probate Code:

During the pendency of a contest of the appointment of a temporary administrator, the temporary appointee shall continue to act as administrator of the estate to the extent of the powers conferred by his appointment.

(emphasis added). In addition, section 28 of the Texas Probate Code states that:

Pending appeals from orders or judgments appointing ... temporary adminis*348trators or guardians, the appointees shall continue to act as such and shall continue the prosecution of any suits then pending in favor of the estate,

(emphasis added). G. William Lavender’s appointment as temporary administrator of Nelson’s estate was valid until contested on January 11, 1988, and absent contest, the court could have made the appointment permanent. Tex.PROB.Code § 131A(j). Irrespective of the inadequacy of Neal’s application for the initial appointment, the appointment was not void, but rather, merely voidable. A judgment is void only if the court rendering judgment had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. Browning v. Piache, 698 S.W.2d 362, 363 (Tex.1985). Neal’s failure to comply with the affidavit requirements did not, therefore, deprive the probate court of jurisdiction. Cf. Peek v. Equipment Service Co. of San Antonio, 779 S.W.2d 802, 804 (Tex.1989).

Once the probate court appointed a temporary administrator, Nelson’s estate had the burden to contest the court’s decision at a hearing. Tex.PROB.Code Ann. § 131A(i) (1989). This court correctly states that neither side proffered nor sought to admit any evidence at the contested hearing. I agree with the court of appeals that the burden of proof to show the necessity of a temporary administration did not shift to Nelson’s estate at the contested hearing because the estate had no prior opportunity to contest the initial temporary appointment until after the court announced its appointment. 764 S.W.2d at 325. Therefore, once the estate filed its Contest of Application for Appointment of Temporary Administrator, Neal once again had the burden to show necessity for a temporary administration. Because Neal failed to introduce any evidence at the contested hearing, she failed to meet her burden and the probate court should have overturned the temporary appointment.

Therefore, I dissent. In so dissenting, however, I do point out that G. William Lavender was validly serving as temporary administrator on January 11, 1988, at the time he was served with process by Neal in her suit against Nelson’s estate.

GONZALEZ and HECHT, JJ., join in this dissent.