Court of Appeals of Texas, Third District, Austin
Ardelia Austin and Allayne Austin, Betty Simmons Austin, Appellants//Cross-Appellant,
Betty Simmons Austin, Ardelia Austin and Allayne Austin, Appellee//Cross-Appellees
THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO.
C-1-PB-17-000281, THE HONORABLE GUY S. HERMAN, JUDGE
Chief Justice Rose, Justices Triana and Smith
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. 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.
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. At the parties' request, the trial
court filed findings of fact and conclusions of law.
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 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.
of December Will
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.
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. The Daughters challenge the legal
sufficiency of that finding.
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.
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 ...