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In re Estate of Moore

Court of Appeals of Texas, Fifth District, Dallas

May 14, 2019


          On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-17-0037-2

          Before Justices Myers, Molberg, and Carlyle



         Appellants Patricia Akin, as the independent executor of the estate of William L. Moore, Jr., and Linda Lenz appeal from a summary judgment issued by the probate court in favor of Appellees Arkansas Arts Center and Arkansas Symphony Orchestra (the Arkansas Entities). We affirm. Because the issues are settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4.

         I. Background

         William L. Moore, Jr. died in Dallas on August 24, 2012. He never married, and he had no children. But he executed a will in 1995, when his mother was 94 years old. The will was admitted into probate, along with two codicils, in February 2013. Akin was appointed independent executor according to the will's instructions. In the will, Moore made various specific bequests before disposing of his residuary estate in Section IV under the following terms (set out in relevant part):

I hereby give, devise and bequeath the rest and residue of my estate, real, personal or mixed, in the following manner:
C. My residuary estate shall pass and vest in the Trustee hereinafter named, IN TRUST, in the following manner:
1. My residuary estate shall be held as a trust for the benefit of my mother, . . . if she is surviving at the time of my death[.]
2. The Trustee may, in its absolute discretion, pay to or for the benefit [of] my said mother part or all of the income or principal of the trust as necessary for her health, education, support and maintenance.
3. If the trust estate includes that certain apartment house located [in] Monroe, Louisiana, the Trustee shall maintain such property and shall permit my mother . . . to reside there free of rent, and to receive any income generated by the property for her lifetime or until such time as she voluntarily moves from the property.
4. The trust herein created shall terminate at the death of my said mother, . . . and the trust estate shall be distributed as follows:
[subparagraphs a through g provide specific bequests to various individuals and charitable organizations] h. The balance of the trust estate after distribution of the foregoing amounts shall be distributed as follows:
1. Fifty percent (50%) to the ARKANSAS SYMPHONY ORCHESTRA . . .; and
2. Fifty percent (50%) to the ARKANSAS ARTS CENTER . . . .

         Moore's mother did not survive him. Akin therefore filed a petition requesting a declaratory judgment stating-among other things-that the trust created by the will did not fail because Moore's mother predeceased him, and thus the residuary estate should be distributed to the remainder beneficiaries according to the will's terms.

         Akin engaged a genealogical search firm to locate Moore's heirs in the event the trust failed or the will otherwise resulted in intestacy. The search firm determined Lenz was Moore's sole heir and issued its final report in March 2016. The next month, Akin filed an application for a determination of heirship, and an ad litem was appointed to represent Moore's heirs who either were unknown or had unknown whereabouts. The Arkansas Entities, in turn, filed a petition under § 405.001 of the Texas Estates Code for an order requiring Akin to account for and distribute Moore's estate under the will, contending the will unambiguously disposed of the residuary estate and required distribution to the trust's remainder beneficiaries.[1]

         In December 2016, on its own motion, the probate court severed Akin's declaratory judgment action into a separate case. The same ad litem who was appointed to represent the unknown heirs in the probate case also was appointed to represent the unknown heirs in the declaratory judgment case. That ad litem later withdrew from both cases and was replaced in May 2017 by a different ad litem.

         In June 2017, the Arkansas Entities filed a Counterclaim and Cross-Claim in the declaratory judgment case, seeking their own judgment declaring-among other things-that Moore's residuary estate should pass to the trust's remainder beneficiaries under the will. The next day, the Arkansas Entities filed a motion for summary judgment. Notably, neither their declaratory judgment petition nor their motion for summary judgment requested an order requiring immediate distribution of Moore's estate.

         Akin responded to the motion for summary judgment, contending that-while she did not necessarily disagree with the Arkansas Entities' conclusion that they were entitled to the bulk of the residuary estate[2]-her request for a declaratory judgment was reasonable in light of the will's language. Moreover, she contended her request to have Moore's unknown heirs determined was reasonable because their interests could be affected by a declaratory judgment. Akin did not, however, object to the probate court ruling on the motion ...

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