In Re Estate of Campbell
2011 Tex. App. LEXIS 4473
Tex. App.2011Background
- James E. Campbell died in 2002; he had a 1977 will leaving assets to Freda (his wife) with Freda as Independent Executrix, and a contingent provision that Rumsey would serve as Independent Executor if Freda predeceased Campbell.
- Freda did not probate Campbell's will; she died in 2008; Rumsey sought probate of Campbell's will as a muniment of title in 2009.
- Brown, Campbell’s daughter, opposed probate on the ground Rumsey was in default for not timely filing the will within four years of Campbell's death.
- Rumsey discovered the will in Freda’s lock box in December 2008 and filed for probate within seven months thereafter; trial court later found Rumsey was not in default.
- Court admitted the will to probate as muniment of title despite more than four years having elapsed from death, based on findings that Rumsey was not in possession of the will or aware of its existence before December 2008.
- The central issue is whether Rumsey’s late filing can be excused as non-default under § 73(a), and whether Freda’s alleged default can be imputed to Rumsey.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rumsey was not in default under § 73(a). | Brown argues Rumsey failed to probate within four years; unexcused default. | Rumsey discovered the will late and acted diligently within a reasonable time. | Rumsey not in default; sufficient evidence supports non-default finding. |
| Whether Freda's default may be imputed to Rumsey for probate. | Freda’s default bars Rumsey as the proponent; she did not probate timely. | Rumsey’s default status must be evaluated independently as the proponent. | Court held not imputing Freda’s default to Rumsey; Williams/Schindler distinctions do not control; Rumsey not in default. |
Key Cases Cited
- Estate of Rothrock, 312 S.W.3d 271 (Tex.App.-Tyler 2010) (default rule and muniment considerations under § 73(a))
- In re Estate of Williams, 111 S.W.3d 259 (Tex.App.-Texarkana 2003) (default of proponent vs. descendants; mechanism for late probate)
- Schindler v. Schindler, 119 S.W.3d 923 (Tex.App.-Dallas 2003) (discusses imputing default; distinguishable facts; muniment issues)
- Abrams v. Ross' Estate, 250 S.W. 1019 (Tex. Comm’n App. 1923) (late probate more than four years after death; consideration of diligence)
- Faris v. Faris, 138 S.W.2d 830 (Tex.Civ.App.-Dallas 1940) (public policy on long-delayed probate under muniment rules)