## In the Court of Appeals Second App ellat e D istrict of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00133

- CV

___________________________

On Appeal from Probate Court No. 2 Tarrant County, Texas Trial Court No. 2019

- PR01490

- 2

Before Wallach and W alker , JJ.; and Lee Gabriel (Senior Justice, Retire d,

Sitting by A ssignment) Memorandum Opinion by Justice Gabriel 

### I N THE 

### E STATE OF 

### E RIC 

### J OHNSON 

### , D ECEASED2 MEMORANDUM OPINIO N
Eric Stalin Ed o wu Johnson ’ s (Eric) last wi ll and test ament name d his son, Sesin
Arthu r Johnson (Sesin) , as In dependent Executor of his estate. Eric ’ s wife and Sesi n ’ s mother, Edwina

-

Jane Johns on (Jane) , filed an “ O pposit io n to A ppointment of Independent Executor

. ” 1 Following a hearing and based upon the consent of both
par tie s , the court signed an order adm itt ing the will to probate and authorizing letters
testamentary. 2 In written find ing s of fact an d conclu sions of law, the tr ial court found
that Sesin was “ unsuitable ” to serve as independent executor of the estate. In a single issue, Sesin argues th at the evidence is legally and f actually insufficient to support the judgmen t of the c ou rt
. I. B ACKGR OUN D
E ric passed away on April 10, 2019

. At the time of his death, Eric was married to Jane for a seco n d time. They had been married to each other previously and
divorced in a pproximately 1999. In 2014, Eric and Jane remarried. Eric an d Jane had
three ch ildren

— Sesin, Delin , and Janelin

— who were the only children of both
parents.

1 J ane ’ s only complaint was that “ S esin Johnson is disqu alified to serve as Indepen de nt Exec utor of this E state
. ” The re was no state d r eason as to why he was dis quali f ied.

2 At the hearing, Jan e ’ s attorney stipulated that the will shoul d be admitted t o p robate. He explained th at his analysis showed that Jane “ c omes awa y much

– she comes away sligh t ly bet te r under the w ill

. ” H e acknow

le dged t hat Jane was not contesting the will but was “ distrustful of this pa rticula r individual. ”3

At the hearing on Jane ’ s motion , Sesi n an d Janelin w ere the o nly witne ss es who testified and the testimony totaled fifty

- five pages. 3 Sesin testified that Er ic had suffered from multiple conditions including cardiac am y l oidosis and was hospitalized
for month s before his death. T oward s the end of his life, Eric wa s moved to his
home in Fort Worth where he was under home hospic e care. Sesin came to For t
Wo rth from his home out of stat e a nd stayed to care for his father when Eric w as moved home

. The three si blin g s commu nicated extensively through group te x t
messages. 4 Sesin furnish ed over 3 00 page s of those text m essages i n response to Jane ’ s f irst r equest for p roduction

. The texts , which began on July 1 9, 2018 , and
ended April 30, 2 019 , were ad mitted in to evidence

. The texts reflected t here was a great deal of conflict b etween the siblings and their mother which only worsened
when E ric went home.
The undis puted testimony at the hearing was that Sesin was not in capacit ated , had no t been convicted of a felony , and had appointed a resident agent to accept service of proces s in all actions or proceedings with respect to th e estate. Se e Tex. Est.
Code Ann. § 30 4.003

. T he testimo ny d id show that Sesin removed proper ty from on e of the homes owned by one or both of his parents, administered morphine to his

3 Jane lin t estified that she did not object to Sesin ’ s se rving as e xecutor of the ir fathe r ’ s estate.

4 So me of the text conversations included all three sibli ngs, while at othe r times, onl y two were p artic ipat

ing.4

father , and borrowed $149,000 from his fath er

— all whi l e Eri c was hospitaliz ed or
unde r h ospice care

. The te s timony and exhibits discussed thre e residences owned by E ric, Jan e , or both. There w ere home s in F ort Wo rth, Arkansa s , and Georgi a . S esin testified that
th e real property in Fort Worth was purcha sed by his father while hi s parents were divorced. Eric ’ s will provided that the home i n F ort Worth was d e vised on ly to his
three children in equal shares. The testimony also reflected that Eric bo ught the
ho me in Arkan sas in 201 2, before Eric an d Jane remarried

. The will provided that the Arkansas property wa s left to Jane and the three ch il dren in equal shares. A d eed
introduced into evidence re flect ed that Jane a lone purchased a home in Georgia in
2016. The will ma de no reference to the pro perty in Georgia. 5
Sesin testified that after Jane filed her oppo s it ion to his appointment as independent executor, she called the police i n Arkansa s t o report that Sesin and Janelin had committed a cr ime by removing p roperty from the Arkansas house. Sesin
testified that he did in fact remove certain furniture ite ms fr o m that home to prepare
the ho me for sale. He testified that he did this while his father was alive and that the plan to rem ove the property to prepare the h o me for sa le was not his idea

. He

5 It is uncon t ested that the will that was offe r ed into evidence and admitted to probate was a n amended will Eric s igned on April 3, 2019

— one week b efore his deat h . The u ncontroverted testimony was th at the only chan ge to the am e nd ed wi ll was to co rrect a n er ror to i nclud e J ane in Section 2.06 as a bene fici a ry of royalties or other monies for patents that Eric owned. Sesin t estified th at he was n amed as the independent executor in both wills his fathe r signed

.5

explained that he had the items shipped to his ho me and t hat he always understood
th at hi s mother was to receive whatever items she wanted. He test ified that he took picture s of the furniture and sent them to hi s mother. He told her to let him know
what she wanted and where she wanted it delivered. S esin also affir m ed that the re were never any charges file d and that he was still waiting fo r his mother to tell him
where to send the furn iture

. Both the t estimony and the myriad o f te x t messages show ed that the three children took part in c aring fo r their father while he w as hospitalized and at home under hospice care. The testimony s howed that Sesin came to the For t Worth home
when Eric was moved there spec ifically to ass ist in his care

. When Eric first arrived
home on March 11 , t he three siblings became very co ncer n ed about the care their

m other wanted to provide their fath er. Their concern was heightened by th e fac t that Jane had t he power of atto rney to ma ke medica l decisions for Eric. In texts between
the siblings immediately after E ric went into hospice care a t home, Delin told his
b rother and siste r that the hospice workers explained that oxygen would be provided
and that Eric said he wan ted the oxygen t o be more comfortable

. Jane said he did not
need it. The texts went on t o say that Jane also did not want E ric to receive morphine , and s he asked the nurses if she could override Eric ’ s wishes. The text

me ssages unquestio nably show ed that Sesin, Jan elin , and Delin discussed a plan to get
the i r father to give the m the power to make his medical decisions and th a t they hoped

to accomplish this w

ithout Jane ’ s knowledge. The texts reflect ed the sibling ’ s e fforts6

to get a notary to the home w hen Jane was not present

. The t exts also state that once the change was made, Delin was proud of his mot her for taking it w e ll and everyone was in good spir

its. The testimon y of both Sesin and Jan elin r el ated that Eric wanted

to ma k e the change to designat e his child ren as t he parties with the right to make his
healthcare decisions and that alth ou gh Sesin had assumed that rol e for a period of time, J anelin was making tho s e deci sions at the ti m e of Eric ’ s d eath. Since Sesin was the son provi ding care fo r Eric w hile he was in hospice care , he
was trained in performing certain ta sks that hospice prov ided to give comfort to Eric

. T h ese inclu ded a dministering morp hine on a regula r basis under the hospice guidelines to sooth e his pain

. Durin g the time Sesin was performing these tasks, he

a sked his father for a loan for his business. 6 Both Sesin and Janel in testified that Eric

wa n ted to make this loa n to Sesin out of an account that was divided by the w ill
between th e three childr en only

. T he loan wa s made after March 19, 2019 , which was with in a month of Eric ’ s death. Eric, Sesin , an d Janelin al l wen t to Bank of Ame rica
to obta i n the funds. Sesin relate d that when Jane fou nd out about the loan, she was upset with him and her husband

. Sesin testified that Eric passed away soon after t he
loan was made and that since he ha d that money, he used $70,000 of the loan

6 The trial c ourt made a f

inding o f fac t th at “ the Applicant may hav e to l d t he Decedent [the loan] was to save his house. ” Sesin was asked rep eatedly if he had told h is father or mother that “ if [he] didn ’ t get the loan, [h e was] going t o lose [hi s] house [.] ” He repe atedly de nied he said that , and there was no evidenc e of f ered to support that theory.7

proceeds on his f

ather ’ s f uneral. He fu rther testified that he and his siblings agreed

on how to split the f

uneral expenses between the three of them and how to acc ount for Sesin ’ s repayme nt of the loan. They work ed ou t the division of the account proceeds provided by t h e will

. 7 Ja ne did not pay for any of the funeral e xpenses. During th e cross

- examination of Sesin, Ja n e ’ s attorney questioned him abou t the loan he obtain ed from his fathe r during the sam e time period he was administering morphine to Eric for his pain

. He also questioned Sesin about why and
how a change i n the will happened. Jane ’ s attorney explored what Sesin ’ s duties
would be if he were to serv e as inde pendent executor of the estate. He inq uired about
the Fort Worth ho me on Med inah S treet that was b o ught sol ely by Eric and bequeathed to his three children. Counsel opined that Jane ’ s homestead interest gave her the r i ght to use and occu py the home on M e dinah for the rest of her life

. Sesin

re sponded he understood that and was w illi ng to ab ide by tha t
. Counsel for Jane also
aske d a question concerning whether Sesin would pursue litigation against Jan e to

rec over the house in Ge or gia if the evid ence proved it was her separate property.

7 Sesin explained that the funds fo r his loan came from th e Teachers I nsurance and Annuity Association of America

- College R etireme nt Equities Fund ( TIAA). He understood that he wa s to repay the loan in to that acco u nt. Section 2.05 of Eric ’ s will made a specific distribution to hi s three children of the funds in that accoun t. But Jane was a beneficiary o n that account , an d the account funds we re di vi ded four ways be for e the $79,000 remaining balance on the loan was paid back and before the will was admitted to probate

. Despite the will provi sion , Jane received $70,000 from the TIAA account. After accounting fo r th eir split of the f unera l expenses an d the re p ayment of the loan , Sesin ’ s sibli n gs received about $53,000. Neither Delin n or Jan elin contested the distribution of th e funds fro m the TIAA account

.8

Sesin did not answer that quest ion beca use an o bjection was susta i ned by the trial

court. At the conclusion of the hearing held on January 28, 202 0 , the trial court or ally
admitted the wi ll to probate and took under advisement the issue of whether Sesin was qualif ied to serve as indep endent executor. Three days late r , the cour t signed an order admi tting the will to probate , authorizing lett e rs testa mentary , and f inding th at
Sesin was not quali fied to serve as independent executor. Se sin filed a m otion f o r

n ew t r ial on March 2, 2020. Sesin filed a request for findin g s of fact and conclusions of law and a notice of past due findings of fact a nd conclusions of law. The trial court made findings of fact and conclusions of law , w h ich were filed on March 23, 2020. Sesin brought t hi s appeal on April 28, 2020. On May 14, 2020 , Sesi n and Jane filed a j oi nt a mended m oti on for n ew t rial and a Rule 11 a greement for s ettlement signed by
bo th parties and their a t torneys as well as Delin and his attorney and Janelin. All parties reques ted that the court vacate the January 31 , 20 20 j udg ment and a pprove the
Rul e 11 agreement. The court did not sign an order on the mot ion before the court ’ s
p l enary p ower expired. See Tex. R. Civ. P . 329 b (c) , (e)

. The find ings of fact most r elevant to the sole issue in this case are as follows:
7

. App licant S ES IN JOHN SON a/k/a SESIN ARTHUR JOHNSON filed an ap pointment of registered ag ent naming a Te xas resid en t as h is agent.
8. Applicant S ES IN JOHNSON a/k/a SESIN ARTHUR JOHNSON has never been convicted of a felony.9

9. App licant SESIN JOHNS O N a /k/a SESIN ARTHUR JOH NSON has never been found incompetent by a court of law.
10

. Appli cant S ES IN JOHNSON a/k/a S ESIN A RTHUR JOHNSON has been questioned by the Arkansas police r egarding property taken from the residence owned by the Deced ent (while h e wa s al ive) an d Jane Joh nson.
1 1

. Applicant S ES IN JOHNSON a/k/a SESIN ARTHUR JOHNSON is st ill in possession of the p ropert y. 12. Applicant S ES IN JOHNSON a/k/a SESIN ARTHUR JOHNSO N
ow ns an IT firm and has a few employees. The business grosses approximatel y $2 00,000.00.
13. App licant S ES IN JOHNSON a/k/a S ESIN ARTHUR JOHNSON received a loan for $ 149,000 .00 from the Decede nt last year. 14. There is evidence the loan was for the Applicant SESIN JOHNSO N a/k/a SESIN ARTHUR JOHNSON t o procure a gove rnment c ontr a ct, but that the Applica nt may have told the Deceden t it was to save his house.
15

. The De cedent was ill and takin g morphi ne when the Applicant S ES IN JOHNSON a/k /a SESIN ARTHUR JOHNSON requested the loan at or around March 19 , 2019.
16. The Applic ant S E S IN JOHNSON a/k/a SESIN ARTHUR JOHNSON , was adminis tering the morphine to the Decedent.

. . . . 20. Applicant S ES IN JOHNS ON a/k/a SESIN ARTHUR JOHNSON paid fo r the Dec edent ’ s funeral in an amount o f approximately $70,000.
21

. The loan from Dece den t ( now an as s e t or claim of the Estat e) to Applicant S ES IN JOHNSON a/k/a SESIN ARTHUR JOHNSON is still ou tstanding.
22. It is uncl ear if the Estate has any inter es t in the real property located in Georg ia.10

23. Ther e may be a homestead interest of JA NE J OHNSON, a/k / a EDWINA

-

JANE JOHNSON in the real propert y located in Fort Worth.
24. There is discord in the Decedent ’ s family a nd C onte stant, JANE JOHNSON, a/k/a ED WINA

- JANE JOHNSON who is the mother of the Applicant SESIN JOHNSON a/k/a S ESIN ARTHUR JO HNS O N,
a nd the s u rviving spouse and a de visee under the D e cedent ’ s Will, was opposed to the appointment of h er son, the Applicant , as Indep endent Ex ecutor. 25. Testim ony by the Applicant raised doubts about the Applicant ’ s trustworthiness.

. . . . 30. Dur ing t he same M arch 1 9 , 2019 , timeframe of Ap plicant o btaining
a loan of $149,000 from the Decedent, Applicant wa s administering morphine to De ce dent.
31. Applicant SESIN JOHNSON, a/k/a SESIN ARTHUR JOHNSON, is a p e rson who is unsuitable to serve as I ndepe ndent E xecut or of t h e Estate.
The court mad e the fol lowing conclusions of law:
1. Both the Applicant SESIN JOHN SON, a/ k/a SESIN ARTHUR JOHNSON, and the Contestant, JANE JOHNSON, a/k/a EDWINA

JANE JOHNSON , consented to the admission of the Will to pr obate and all proo f required for the admission to probate. All proof needed was proved and the Will was entitled to a nd admitted to probate. 2. App licant SESIN JOHNSON , a/k/a SESIN ARTHUR JOHNSON, is not qualified to serv e as Independent Executor of thi s Esta te purs uant t o Texas Estates Code Section 30 4.003(5), as the Court finds SESIN JOHNSON, a/k/a SESIN ARTHUR JOHNS ON is unsuitable.11 II. DISCUSSION
Ses in ’ s single issue challenges the legal and factual sufficiency of the evidence

to s upport the tria l cour t ’ s judgmen t that he was unsuitable to serv e as indep endent
executor of Eric ’ s estate. A probate court ’ s ord er findi ng a person is unsu itable to
serve as executor is reviewed under a n abuse

- of

- discretion standard

. In re Estate of
Bor en , 268 S.W.3d 8 4 1 , 8 46 (Tex. App.

— Texarkana 200 8 , no pet. ) (op

. on reh ’ g) ; In re
Estate of Vigen

, 970 S.W.2 d 597, 600 (Tex. Ap p.

— C orpu s Christi

– Edinburg 1998, no
pet. ) ; Ol guin v. Jungman , 931 S.W.2d 607, 610 (Tex. A pp.

— San Antonio 1996, no writ )

. W hen a pplying an abuse

- of

- dis cre t i on standard, the normal sufficie ncy

- of

- the

evidence review is part of the abuse

- of

- disc retion review and not an independent ground for reversal

. In re Estate of Boren , 268 S.W. 3d at 84 6. T he probate cour t abuses
its discre tion if its ac tions are unr eas o nable or arbitra r y or without ref erence to any guiding rules or principles. Low v. Henry , 221 S.W. 3d 609, 61 4 (Tex. 2007); In re Guardianship of Bayne , 171 S.W.3d 232, 235 ( T ex. App.

— Dallas 2005, pet. denied).

“ Under an abuse o f discretion sta n dard o f review, we must make an independent inquiry of the entire record to determine if the trial c ourt abused its dis cretion and are
not limited to review

ing the sufficiency of the evidence to support the findings of fac t made. ” In re E state of Clark , 1 98 S.W .3d 273, 275 (Tex

. App.

— Dallas 2006, pet. denied) (citing Chrys

ler Corp. v. Blackmon , 841 S.W. 2 d 844, 853 (Tex. 1 992) (ori g. proceeding)).12

The E state s C ode provides the priority order of persons qu alified to serve as a personal repr esentative to a n exe cut or named in a will

. See Tex. Est. Code
Ann

. § 304.001(a)(1). The E states C ode also deems cer tain per sons sta tutorily disqualified to serve as an exe cutor, including a “ perso n whom the court finds

un suitable. ” See id. § 304.003(5). Whe n the appli cant is among those nam ed in the
E states C ode as a person entitled to prio rity, as in this instance, the part y opposi ng the appointment has the bu rden of est ablishing the applica nt ’ s disqualif ication. In re
Es tate of Robinson , 140 S.W.3d 8 01, 8 0 5 (Tex. Ap p.

— Corp us Christi

– Edinburg 2004, pet. dism ’ d) . Jane had the burden of est ablishing that Sesin w as unsuitable to be

a ppointed independent executor of Eric ’ s estate. Unsuitab ility is not defined in the E s tates C ode , and case law has not deli neated
any comp r ehensiv e, discrete explanation of the at tributes that make someone
unsuita ble. “ It would appear , therefore, that the legislature intended for the trial cour t to have wide latitude in determining who wo uld be appropriate for the purpose of administering e s tates. ” Brittingham Sada d e Ayala v. Mack ie , 158 S.W.3d 568, 572 (Tex. App.

— San An tonio 2005, pet. denied ) (quoting D ean v . G etz , 970 S.W.2d 629, 633 (Tex. App.

—

Tyle r 1998, no pet.) )

. Sesin attacks the legal su fficiency of an adverse finding o n an issue i n whic h h e did not have the burden of proo f. T o prevail, he must demonstrate o n a ppeal that
there is no evidence to support the adverse finding. Croucher v. Crouch er , 660 S.W.2d 55, 58 (Tex. 198 3 ) ; Wichita C ty

. v. H art , 989 S.W.2d 2, 6 (Tex. App.

— Fort Worth 19 9 9 ,13

pet. denied

). He also challenge s the fa c tual s ufficiency of the evidence. In our review
of this challenge, we cons ide r all the evidence to determine if he de monstrates that the
evidence is ins ufficient to support the adverse finding. Ortiz v . Jones , 9 1 7 S.W.2d 770, 772 (Tex

. 1996 ) ; Cr

oucher , 660 S.W.2d at 58.
To co nclude that Jane met her burde n, w e must find t hat happ ened through
the exhibits ad mitted into evidence o r through the testimony of Sesin and Janelin, since Jane did not testify o r call w i tnesses
. “ In a bench trial , the trial court, as
factfinder , is the sole judge of the credibility of the wit nesses and the weight to be given their tes timony. ” In re Estate of Turner , 265 S.W.3d 709 , 714

– 15 (Tex. App.

— Eastland 2008, no pet. ). The trial c ourt found that Sesin ’ s own testimony raised
doubts about his trustw orthiness. T he evidence showed t hat Sesin to ok property
from a home in Ar kansas and was questioned by the police concerning th at p roperty , which remained in the possession of Sesi n at the time of trial. On direct, Sesin
testified that he received a loan f or his business from Eri c in January or Februa ry. The t ext messages and the cross

- examination actually showed that the l oan was obtained a t some point after March 1 9

— less than a month bef

ore Eric ’ s death

. Sesin ’ s testimony was that Eric was terminally il l at t he time he requested the loan and
th at it was necessary for Eric to accompany him and Janelin to the bank to get the
ba nk to relea s e the funds

. Sesin was administering morp hine , whe n request ed by
Eric , during this same time period. The text mes sage s al so show that the siblings

wer e all involved in facilitating the change in Eric ’ s power of attorney in a manner14

t ha t w ould i nsure that Jane had no advance notice. On cross

- exa mination, Sesin was
also asked questions ab out t he fiduc iary duty of an execu tor that required “ high trust and responsibility. ” Jane ’ s counsel followed tha t with q uestions concerning how Sesin
would treat interests Jane might have in two houses owned by E ric, Jane , or both.
Under the wil l, Ja ne had n o claim to the Fort Worth prop erty. Sesin tes tified that when Jane first read the will that was later offered into probate, Jane asked E ric to
leave her the house in Fort Worth. Sesin recounted that Eric “ ad amantly denied her
and said th at was for his children. ” Whil e the Georgia property was not specific ally addressed in the will, a residual clause disp osed of the residue of Eric ’ s estate equally between Jane and the three children. We find that the prob ate court did not abuse its di scretion in findi ng Sesin was not qualified to act as executor. “ It i s of no consequence that we, or any other court,
would decide th is issue differently so long as the matter to be decided is within the discretion of the pro bate court. ” Sp ies v. Mil n er , 928 S.W.2d 3 17, 319 (Tex

. App.

— Fort Worth 1996, no writ )

. The eviden ce show ed th ere was substan tial discord between Sesin and Jane , and the trial court made that specific finding. 8 When a clai m against the estate is controv ersial, the trial court is wit hin its discretion to e valua te

8 Sesin argues that the fact that the parties were ab le to later reach a Ru le 11 agreem ent to s ett le their differences is evidence that there is not fami ly discord. The Rule 11 agreement was not before the court a t the time it found tha t Sesin was unsuitable to serve as exe cutor , and therefore the Rule 11 agreement c annot be considered or giv e n any we ig ht as to the judgment ’ s merit

. See Advert

. Displays, Inc. v. Cote , 732 S.W.2d 360 , 363 (Tex. App.

— Hous t o n [14 th Dist.] 1987, no writ ).15

wheth er the claim against the estate pr esents such a conflict that the executor , who is
also a claim ant, is not suitable to act as an administrator. Se e In re Estate of Vigen , 970 S.W.2d at 601; Beevers v. Lamp kins , No. 07

- 1 1

- 0021

- CV, 20 12 W L 15204 32 , a t * 5 (Te x. App.

—

Amarillo May 1, 2012, no p et.) (mem. op .)

. There is also some evidence
to support the trial court ’ s finding of doubt as to Sesin ’ s trustworthiness due to
inconsist encies in his t es timony concerning the loan and due to the surreptitious
manner i n which he and his siblings operated to get Eric to make changes to important legal documents with out Jane ’ s knowledge. Because t his is some evidence that Sesin pu rsued his own self

- interests over the interests of Jane, th e trial court ’ s determination tha t Sesin wa s unf it to serve as executo r was neither arbitra r y , nor unreasonable , no r made with out reference to guiding principles. See In re Estate of
V igen , 970 S.W.2d at 601. We find that t here is more than a scintilla o f evidence that
Sesin had a substanti al con fl ict of interest with Jane and that considering all the
eviden ce, the trial court ’ s fin ding was not clearly wrong or mani festly unjust. See Formby v. Bradley , 695 S.W.2d 782 , 784

– 8 5 (Tex. App.

— Tyler 1985, writ r ef

’ d n.r.e. )

. Sesin ’ s single issue is overru led.16 I II
. C ON CLUSION Having ov erruled Sesin ’ s sole issue, we affirm th e judgment of the trial court.

/s/ Lee Gabriel
Lee Gabriel Justice
D elivered: August 26, 2021