File: 070976F - From documents
Opinion Filed April 17, 2008
Court of Appeals
District of Texas at Dallas
IN RE: THE ESTATE OF E. IMOGENE WALKER,
On Appeal from the Probate Court No.
Trial Court Cause No.
Wright, O'Neill, and Francis
Appellants, Kay Frances
Walker, Juanita Faye Anderson-Copier, Mona Walker Hurst, Marcia Walker Hurst, Martha Diane Walker, Dwayne Walker,
John Walker, and Sharon Walker Atwell, are relatives of the deceased, E. Imogene
Walker. They appeal from an order of the probate court denying them relief in
their complaint regarding an amended inventory filed by the independent executor
of the deceased's estate. In a single issue, appellants contend the trial court
erred as a matter of law in finding that the amended inventory was not
erroneous. We affirm.
The deceased and Norma
Lea Beasley were friends and business partners for over forty years. The deceased was an accountant and Beasley is an
attorney. The deceased died on August 16, 2003. Beasley filed an application to
probate the deceased's will on August 18, 2003. Beasley also filed the
deceased's will dated February 28, 1990. Beasley later discovered a will dated
February 18, 1992 that revoked all prior wills. Accordingly, Beasley amended her
application to probate the will and filed the 1992 will with the probate court.
On March 29, 2004, the probate court signed an order admitting the deceased's
1992 will to probate and appointed Beasley independent executrix in accordance
with the deceased's will.
Beasley filed the initial
inventory and appraisement on December 15, 2004 and the probate court approved it on December 29, 2004. This inventory valued
the assets of the deceased's estate at $5,122,397. Beasley's attorney
subsequently discovered a trust document that the deceased and Beasley had
entered into and signed on February 20, 1992. In light of the discovery of this
trust document, Beasley filed an amended inventory and appraisement on April 13,
2007 which reduced the value of the estate's assets to $181,266. In response to
this amended filing, appellants filed a complaint under section 258 of the
probate code. Tex. Prob. Code Ann. § 258 (Vernon 2003). They alleged the amended
inventory was erroneous because it omitted certain
property they contend belongs to the estate. See Footnote 1
court conducted a hearing on appellants' section 258 complaint. On June 25, 2007, it signed an order denying the requested
relief stating that “the Court is not satisfied that the Amended Inventory,
Appraisement and List of Claims filed April 13, 2007, is erroneous or unjust in
any particular as alleged in the Complaint.” This appeal timely
Standard of Review
As the parties note in
their appellate briefs, there is no case stating the standard of review in an appeal of a complaint under section 258 of
the probate code. For reasons that follow, we hold that abuse of discretion is
the appropriate standard of review.
Section 258 provides that
the trial court conduct a hearing on a section 258 complaint. Tex. Prob. Code Ann. § 258 (Vernon 2003). If, following the
hearing, the court is satisfied that the inventory or appraisement is erroneous
it shall order a new appraisal. Id. Thus, a determination of a complaint
under section 258 is committed to the trial court's discretion.
Removal of a
personal representative is also a matter of the trial court's discretion. See Tex. Prob. Code Ann. § 222 (Vernon
Supp. 2007). We review a trial court's order removing a personal
representative under an abuse of discretion standard. In re the Estate of
Clark, 198 S.W.3d 273, 275 (Tex. App.-Dallas 2006, pet. denied). Similarly,
a probate court has broad discretion in determining whether a person is suitable
to serve as executor or administrator. Tex. Prob. Code Ann. §§ 77 &78
(Vernon 2003); In re Estate of Stanton, 202 S.W.3d 205, 209 (Tex.
App.-Tyler 2005, no pet.). We review those orders also for an abuse of
discretion. Dean v. Getz, 970 S.W.2d 629, 633 (Tex.App.-Tyler 1998, no
Because a probate court's
determination of a section 258 complaint is committed to its discretion, we conclude that this Court reviews such
order for an abuse of discretion. A trial court abuses its discretion if it acts
in an arbitrary or unreasonable manner without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
issue in this case, as stated in appellants' brief, is whether the trial
court erred as a matter of law in finding that
the amended inventory was not erroneous. As noted earlier, the assets of the
deceased's estate were greatly reduced from the original inventory to the
amended inventory. Beasley's attorney discovered a document labeled “Trust”
after a long search. In response to the discovery of the Trust, Beasley filed
the amended inventory. The trust was entered into and signed by the deceased and
Beasley on February 20, 1992. Appellants contend this document is not a valid
trust and, therefore, the amended inventory based on the document was erroneous.
Specifically, appellants contend the document fails as a trust because it fails
to identify the property that is subject to its provisions.
To create a
trust by a written instrument, the beneficiary, the res, and the trust
purpose must be identified. Perfect Union
Lodge No. 10, A.F. & A.M., of San Antonio v. Interstate Bank of San Antonio,
N.A., 748 S.W.2d 218, 220 (Tex. 1988). When an essential term is altogether
missing from an attempted express trust, or is not at least reasonably certain,
that term cannot be supplied by parol evidence, and the trust will fail.
Brelsford v. Scheltz, 564 S.W.2d 404, 406 (Tex.Civ.App.-Houston [1st
Dist.] 1978, writ ref'd n.r.e.). Parol evidence is admissible to establish which
accounts are subject to a survivorship agreement. See In re Dillard, 98
S.W.3d 386, 396-97 (Tex. App.-Amarillo 2003, pet. denied).
argue that a property description in a trust must be identified with
as much certainty as is required in a deed of
conveyance. See Kurtz v. Robinson, 279 S.W.2d 949, 952 (Tex. Civ.
App.-Amarillo 1955, writ ref'd n.r.e.). In Kurtz, the trust described the
property as the “Ft. Worth property, the Andrews land, and the home at Lubbock.”
The court held this property description was insufficient to create a trust.
With respect to
the sufficiency of a property description in a deed of conveyance, the supreme court has held that other information contained
in a deed of trust, along with parol evidence may be considered. Maupin v.
Chaney, 139 Tex. 426, 163 S.W.2d 380, 383-84 (1942). In Maupin, the
deed of trust stated that the property described was the same property conveyed
by two named grantors to two named grantees on April 18, 1929. Id. at
383. Parol evidence showed that the only deed involving those grantors and
grantees was actually dated April 9, 1929. Id. The court held that if
there appears in the instrument enough to enable one by pursuing an inquiry
based upon the information contained in the deed to identify particular property
to the exclusion of others, the description will be held sufficient. Id.
The court repeated the general rule with respect to a description being adequate
where it refers to another instrument that contains a proper description of the
The trust signed by
Beasley and the deceased instructs that all property be held jointly with full right of survivorship except for property
held separately on their books and records. The trust provides, in pertinent
part, as follows:
Except as set
[forth] below, all properties whether real or personal or mixed we now own or will own in our names individually or in
the name of B&W Investments shall be held in Trust and owned jointly by
Imogene Walker and Norma Lea Beasley with full rights of survivorship so that
the survivor of us will own all of these properties purchased through our joint
efforts on the death of the other.
We place these properties
in Trust due to varying legal problems such as restrictions on transfer of stock rights, legal problems in titles to
real estate, and to insure that all properties purchased in our individual names
are held for and owned for both parties.
We include all real or
personal or mixed properties such as land, buildings, houses, stock, other securities, insurance policies, art, coin
collections, automobiles, our companies and other personal property with or
without titles except that which we each maintain separately on our books and
records such as the property Imogene Walker inherited or owns with her family
solely and the property Norma Lea Beasley inherited or owns with her family
The trust contains a property description. The property subject to the
trust included all property held in the names of
Beasley or the deceased individually or in the name of B&W Investments
except for property they “maintain separately on our books and records.” We
conclude the property description is reasonably certain. As directed in the
trust, Beasley turned to the records kept by her and the deceased to show what
separate property the deceased owned and, therefore, not subject to the right of
At the hearing on
appellant's section 258 complaint, two witneses testified, Beasley and David Hendricks, a certified public accountant
and an attorney. Beasley testified that the deceased took care of all the
financial statements and tax returns for them individually and their
partnership. Hendricks testified that he had done work for Beasley since the
death of Walker. Hendricks reviewed the individual tax returns of the deceased
and Beasley and the tax returns of their partnership. In doing this review,
Hendricks was readily able to identify the properties and investments treated
identically on both Beasley's and the deceased's tax returns. He could also
identify their investments on the partnership's tax return. He testified that
the only properties that the deceased showed on her individual tax returns that
were separate from Beasley were the Florida properties that she owned with her
sisters. Hendricks testified that from his review of financial records of
Beasley, the deceased, and their partnership, he had no doubt as to which
properties the deceased owned jointly with Beasley and which properties she
Having reviewed the
evidence presented at the hearing on appellants' section 258 complaint, we conclude the trial court did not abuse its
discretion in finding that the amended inventory and appraisement was not
erroneous. Accordingly, we overrule appellants' issue.
We affirm the
trial court's order.
Specifically, they dispute the omission of the following
1. Item 1
under “Real Property” on page one of the original inventory;
2. Items 2a. through 2g.
under “Stocks, bonds, and Other Securities” on page 2 of the original inventory; and
3. Items 3a. through 3m.
under “Other Personal Property” on page 3 of the original inventory.