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Austin v. Austin

Court of Appeals of Texas, Third District, Austin

September 12, 2019

Ardelia Austin and Allayne Austin, Betty Simmons Austin, Appellants//Cross-Appellant,
v.
Betty Simmons Austin, Ardelia Austin and Allayne Austin, Appellee//Cross-Appellees

          FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. C-1-PB-17-000281, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Triana and Smith

          MEMORANDUM OPINION

          EDWARD SMITH, JUSTICE

         This is a dispute over two competing wills disposing of the estate of Morris Austin, Jr. The parties are his children Ardelia Austin and Allayne Austin (the Daughters) and his widow, Betty Simons Austin.[1] The trial court admitted to probate a will leaving Morris' entire estate to Betty and allowed both sides to recover their attorney's fees and other expenses out of the estate. We affirm.

         BACKGROUND

         Morris died in January of 2017 at the age of eighty-five. Shortly afterwards, the Daughters applied to probate a will dated April 6, 2016 (April Will), appointing them both independent co-executors. The Daughters are the principal beneficiaries under the April Will. The trial court issued an order admitting the April Will to probate and appointing the Daughters independent co-executors. Nine days later, Betty filed a cross-application to probate a will dated December 16, 2016 (December Will) making her sole beneficiary of Morris' estate. The December Will bears the signature "Morris Austin Jr." and those of three witnesses: Sharon Bouldwin, Alexis Balancier, and Steven Henry. The Daughters filed an answer asserting the December Will is invalid because Morris' signature is a forgery. After hearing testimony and evidence on whether Morris' signature was genuine, the trial court signed an order admitting the December Will to probate and appointing Betty as independent executor in place of the Daughters. The parties subsequently filed separate motions for an allowance of reasonable attorney's fees out of the estate. See Tex. Est. Code § 352.052 ("Allowance for Defense of Will"). The trial court granted both motions and modified its previous order to award the Daughters $33, 173 and Betty $48, 340.15 in fees and litigation expenses.[2] At the parties' request, the trial court filed findings of fact and conclusions of law.

         The Daughters appeal the trial court's admission of the December Will to probate and award of attorney's fees to Betty. Betty cross-appeals the award of attorney's fees to the Daughters.

         DAUGHTERS' APPEAL

         The Daughters argue there is legally insufficient evidence supporting the trial court's finding that Morris personally signed the December Will. If we agree, they contend, we must reverse the court's allowance of attorney's fees to Betty. The Daughters argue in their remaining issues that the trial court erred by admitting two exhibits-an excerpt from Morris' medical records and an audio recording-over their hearsay objections.

         Probate of December Will

         After a will has been admitted to probate, a person may file an application to admit a later will by the same decedent. Id. § 256.102. An application under this provision is not considered a contest of the validity of the earlier will. In re Estate of Hormuth, No. 04-14-00105-CV, 2014 WL 4438491, at *2 (Tex. App.-San Antonio Sept. 10, 2014, no pet.) (mem. op.) (citing Stovall v. Mohler, 100 S.W.3d 424, 427 (Tex. App.-San Antonio 2002, pet. denied)). Instead, the court considers the second application under the same standards and criteria as the first and may admit the second will to probate. See Tex. Est. Code §§ 256.102, .103(a). An order admitting a second, later will to probate "effectively revokes the probate of the first will." In re Estate of Hormuth, 2014 WL 4438491, at *2.

         In a proceeding to admit a will to probate, the proponent carries the initial burden of proof. In re Estate of Danford, 550 S.W.3d 275, 281 (Tex. App.-Houston [14th Dist.] 2018, no pet.). Because the December Will was not self-proved, meeting this burden required Betty to show, as relevant here, that Morris "executed the will with the formalities and solemnities and under the circumstances required by law to make the will valid." Tex. Est. Code § 256.152(a)(2). A will is valid if it is "signed by the testator in person" and "attested by two or more credible witnesses who are at least 14 years of age and who subscribe their names to the will in their own handwriting in the testator's presence." Id. § 251.051(2)(A), (3). The trial court expressly found that Morris personally signed the December Will.[3] The Daughters challenge the legal sufficiency of that finding.

         In an appeal from a bench trial, we review the sufficiency of the evidence supporting the trial court's fact findings using the same standards that we apply to jury findings. Texas Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex. 2019). We will sustain a legal sufficiency challenge when the record contains no evidence of a vital fact, rules of law or evidence bar us from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence conclusively establishes the opposite of the vital fact. Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 736 (Tex. 2018). In reviewing the record, we "credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable [factfinders] could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). It is the role of the factfinder to resolve conflicts in the evidence, but it must do so reasonably. See id. at 820, 827.

         We first set out the conflicting evidence regarding whether Morris personally signed the December Will. Sharon Bouldwin, one of the subscribing witnesses, affirmatively testified that Morris signed the December Will in the presence of the three witnesses, who then signed their own names on the will. Hazel Scott, a notary public, confirmed Bouldwin's testimony and described the events preceding the signing. She was at Morris' house on December 16 to notarize a document for him when he asked her to find witnesses for a will he intended to sign. She agreed and returned with Bouldwin, Henry, and Balancier. Scott watched Morris and the witnesses sign the will, and then affixed her notary's seal while Morris signed her notary book. On the other hand, Dale Stobaugh, a forensic document examiner, testified as an expert that Morris' purported signatures are not genuine. Stobaugh testified that he compared Morris' purported signature on the December Will, the corresponding entry from Hazel Scott's notary book, and a statutory power of attorney with sixty-seven known examples of Morris' handwriting and eight samples of Betty's. He concluded there is a "strong probability" Morris did not make any of the signatures because of "a number of differences" with the handwriting exemplars. Stobaugh further concluded that there are "indications that Betty Austin may have written Morris Austin's signatures" on the December Will and the corresponding notary book entry. In addition, the Daughters testified they were familiar with Morris' handwriting and that the signature on the December Will is not genuine. See Tex. R. Evid. 901(b)(2) (providing that non-expert can offer opinion testimony on genuineness of handwriting "based on a familiarity with it that was not acquired for the current litigation"). The Daughters explained they were familiar with Morris' signature because they helped him ...


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