Linda Ferreira v. Douglas W. Butler and Debra L. Butler, 531 S.W.3d 337

Background

Patricia Ann Hill died in 2006 leaving her estate to her husband, Norman Ferreira; she was survived by children Douglas and Debra Butler.
Norman did not probate Patricia’s will and died in February 2016; Norman’s will named Linda Ferreira (his ex-wife) as independent executrix and devisee.
In mid-2016 Linda, acting as executrix of Norman’s estate, found Patricia’s will among Norman’s papers and about one month later applied to probate it as a muniment of title—nine years after Patricia’s death.
The Butlers contested, and moved for summary judgment under Tex. Est. Code § 256.003(a), arguing Linda failed to prove the applicant was not in default for presenting the will after the four-year limit.
The probate court granted the Butlers’ no-evidence and traditional summary judgment; the court of appeals affirmed, holding the default inquiry must include Norman’s conduct and Linda produced no evidence that Norman was not in default.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the default inquiry under Tex. Est. Code § 256.003(a) looks only to the applicant’s personal diligence or also to the conduct of the decedent/devisee (Norman) when the applicant appears as executrix of that devisee’s estate	Linda: only her own diligence matters because she applied promptly after discovering the will	Butlers: Linda applied as executrix of Norman’s estate, so Norman’s failure to probate is attributable and must be considered	Held: The inquiry includes Norman’s conduct because Linda sued in her capacity as Norman’s executrix and she can claim no greater interest than Norman had
Whether a devisee-of-a-devisee (Linda) can probate a will when the intermediate devisee (Norman) failed to probate within four years	Linda: even if Norman defaulted, her prompt action upon discovery defeats default	Butlers: a devisee’s default can bar descendants/devisees from later probating the will	Held: Following binding precedent, a devisee of a devisee stands in no better position than the intermediate devisee; Linda cannot prevail absent proof Norman was not in default
Whether Linda produced sufficient summary judgment evidence to raise a fact issue that Norman was not in default	Linda: evidence she discovered the will in July 2016 and applied a month later shows diligence	Butlers: that evidence says nothing about Norman’s inaction during the statutory four-year period	Held: Linda failed to raise a genuine issue of material fact regarding Norman’s diligence; summary judgment for appellees affirmed
Whether the trial court erred by denying Linda’s cross-motion for summary judgment	Linda: her evidence conclusively proved she satisfied the exception to the four-year bar	Butlers: cross-motion ignored the need to show Norman’s non-default	Held: Cross-motion denied because Linda did not conclusively prove Norman was not in default

Key Cases Cited

Faris v. Faris, 138 S.W.2d 830 (Tex. Civ. App.—Dallas 1940) (refused writ; holds a devisee of a devisee takes no greater interest than the intermediate devisee and cannot overcome that devisee’s default)
Schindler v. Schindler, 119 S.W.3d 923 (Tex. App.—Dallas 2003) (defines “default” and attributes devisee’s default to subsequent devisees)
In re Estate of Campbell, 343 S.W.3d 899 (Tex. App.—Amarillo 2011) (contrasting rule that a devisée’s default may not always bar a devisee’s devisee when probating a will)
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005) (distinguishes capacity and standing; executor acts for the estate)
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2006) (summary judgment standards for appellate review)