COURT OF A PPEAL S EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS

I N THE MATT ER OF TH E ESTATE OF ANTON I O PEREZ, D ECEASED § § § § § § No. 08-08-00167- CV

Appea l from the Probate Court No. Two of El Paso County , Texas (TC# 2007-P00143)

O P I N I O N Romelia Be ard, B ertha

Ybar ra, Grac iela I

barr a, and Rosa E lena Mier (“the Daughters”) appea l the trial court’ s judgme nt in favor of Rosa Perez (“Mr s. Perez”) w ith respec t to her application for

probate of a w ill as a muniment of title. The Daughters cha lleng e the tria l court’s judgme nt based on leg al and f actua l insufficienc y . We affir m. Mr. Antonio Perez died on Mar ch 10, 1995. He had made two wills in hi s lifetime: a 1975 will and a 1993 will. Romelia Be ard, B ertha Ybar ra, G rac iela I

barr a, and Rosa E lena Mier

are Mr. Pere z’s adult children fr om his first marriag e, and the y wer e bene ficiar ies under the 1975 will. Mrs. Perez, the widow of Mr. Per ez, was the sole be nefic iary of the 1993 will. Mrs. Perez re tained attorne y Fr ed Morton in J une 2004 to probate the will in order to transfe r title of a home on G rant Ave nue in El Paso, Texas to her. The attorney rec ommended transfe rringthe prope rty

through an af

fidavit of heir ship and a spec ial war ranty deed. T he aff idavit was re corde d with the County Clerk in October

2004. The attorney

sent Ms. Be rtha Ybar ra, Mr . Perez’s oldest child, a c opy of the a ffidavit of he irship and spec ial war ranty deed f orher sig nature , but she did not respond. Mrs. Pere z did not pursue the matter as she was una ble to aff ord additional attorne y

fee s. In Fe bruar

y 2007, the Daughters filed a n application to dec lare heirship. Mrs. Pere z responde d by

filing he r own a

pplication to probate the 1993 will as a muniment of title. The probate court he ld a hea

ringin October

2007. Although Mr s. Perez was una ble to produce the 1993 will in court, the court sig ned a judgment admitting that will to probate a s a muniment of title in Februa

ry 2008. In this order, the c ourt deter mined: (1) Mr. Per ez executed the 1993 will proper ly ; (2) Mr. Per ez was of sound mind and at least 18 y ear s of ag e whe n he executed the will; (3) Mr. Pere z never re voked the will; (4) the c ourt has re solved the Da ug hters’ c ontest of the will’s probate ; (5) all proof require d for the w ill not produced in court ha s been ma de; (6) the photogr aphic c opy

of the will was e ntitled to probate; (7) at the time of Mr. Pere z’s death, Mr. Pere z owned rea l property on Gra nt Avenue a

nd another

on San Dieg o Avenue , both in El Paso, Texas, as well as var ious personal prope rty ; and (8) Mr s. Perez was not in defa ult in failingto file a c opy

of the will within four y ear s of Mr. Pere z’s death, and the w ill was admissible to probate a s a muniment of title. As a re sult of the court’s judg ment, the title to both

rea l property

on Gra nt Avenue a

nd San Dieg o Avenue rested in Mrs. Per ez. On Fe bruar y 14, 2008, the trial cour

t entere d its order a dmitti ngthe 1993 will to probate a s a muniment of title afte r four year s. On Marc h 18, 2008, the Daughters moved f or a ne w trial, but the cour t denied 1 it on April 24, 2008. The Daughters filed a reque st for finding s of fa ct and c onclusions of law on May 1, 2008, and at this point, more than twenty day s have pa ssed since the court’s judgment.
Although the Daughters denie d knowingabout the 1993 will until Mr. Morton sent them 1 a letter reg ardingit, there is no dispute betwe en the pa rties as to the e x istence of the will. -2-Under

the Texas Rules of Civil P roce dure, the Daughters fa iled to timely file the re quest, and a s such, it is deemed that no suc h reque st was made. See T E X .R.C I V .P. 296. On appe al, the Da

ug hters conte nd the trial cour t erre d beca

use: (1) the evidenc e wa s leg ally and fa ctually

insufficient to over come the pr esumption that Mr. Perez revoke d the will; and (2) the evidenc e wa s leg ally and fa ctually

insufficient to support the trial c ourt admitting the will to probate as a

muniment of titl e more than four year s after Mr. Pere z’s death. In both issues, the Daug hters cha lleng e the leg al and f actua l sufficienc y

of the e vidence

. Howeve r, as a

preliminary

matter, the D aughters conte nd the trial cour t made finding s of fa ct in a letter rulingand orde r, and the y urg e us to revie w them for le g al and f actua l sufficienc y

under the same standa

rds used to re view a jur

y ’s ver dict on jury

questions on appea l. L etter r ulings, howeve r, do not constitute formal f indings of f

act. CherokeeW

ater Co. v. Gregg County Appraisal Dist. , 801 S.W .2d 872, 878 (Tex. 1990); Castil lo v. August , 248 S.W .3d 874, 880 (Tex.App.--El Paso 2008, no pet.) . Her e, the c ourt sent letters to the pa rties on Novembe r 5 and November

7, 2007, in which it expl ained its rationale for its ruling . Be cause these letter ruling s do not constitute formal finding s of fa ct, we de termine the c ourt below did not enter any finding s of fa ct in the instant case

. See Che rokeeW ater Co. , 801 S.W .2d at 878; Castil lo , 248 S.W .3d at 880. Be cause the trial cour t did not make finding s of fa ct or c onclusions of law, we must assume it made a ll findings in support of its judgme nt. Pharo v. Chambers County, Tex. , 922 S.W .2d 945, 948 (Tex. 1996); Alford v. Johnston , 224 S.W .3d 291, 296 (Tex.App.--El Paso 2005, pet. denied) . When a re porter’ s rec ord is broug ht forwa rd, these implied finding s may be challeng ed by

fac tual sufficie ncy

and leg al suffic iency

points the same as jury

finding s or a tria l
-3-court’s f

indings of f

act. Roberson v. Robinson , 768 S.W .2d 280, 281 (Tex. 1989)(per curiam); Alford , 224 S.W .3d at 296. In deter mining if some e vidence supports the judg ment and the implied findings of f

act, we consider only

that evidenc e most favor able to the issue a nd disreg ard entirely that which is opposed to it or contra dictory in its nature. W

orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990). The judg ment must be aff irmed if it can be upheld on any leg al theory that finds support in the evidenc e. Id

. Be cause the Daughters’ c halleng e of the 1993 will on lega l sufficienc y g rounds is based on adver se finding s with respec t to issues on which they did not have the bur den of pr oof, they must demonstrate on appe al that no evidenc e supports ea ch adve rse f inding. See Crouche r v. Croucher , 660 S.W .2d 55, 57 (Tex. 1983). We view the e vidence in the light most favor able to the trial cour

t’s finding s, cre diting fa

vorable evidenc e if a

rea sonable fa ct finder

could, and disreg ardingcontra

ry evidenc e unless a r easona ble fa ct finder

could not. See City of Keller v. W ilson , 168 S.W .3d 802, 807 (Tex. 2005). We sustain a no evidenc e issue only if there is no more than a

mere scintilla of evidenc e provingthe eleme nt of the cla im. St. Joseph Hosp. v

. W olff , 94 S.W .3d 513, 520 (Tex. 2002). Simi larly , beca

use the Da

ug hters did not bear

the burde n of proof

, in their cha lleng e of the 1993 will based on fa ctual suff iciency , they

must show there wa s insufficient evide nce to support the re levant adve rse f indings. See W

estec h Eng'g, Inc. v. Clearwater Constructors, Inc. , 835 S.W .2d 190, 196 (Tex.App.--Austin 1992, no writ). We c onsider and w eig h all of the evidenc e and se t aside the ve rdict only if the evide nce that supports the finding is so we ak as to be cle arly wrongand manife stly

unjust. Long v. Long , 196 S.W .3d 460, 464 (Tex.App.--Da llas 2006, no pet.). In makingthis review, we are not a fa ct finder and will not pass upon the
-4-cre dibilit y of the witnesse s or substitute our judgme nt for that of the trier of fac t, even if a differ ent answe r could be rea ched. Id .; Bright v. Addison , 171 S.W .3d 588, 595 (Tex.App.- -Da llas 2005, pet. dism’d, (2) pe ts. denied). The amount of evide nce ne cessa ry to affir m a judgme nt is far less than that nece ssary to reve rse. Bright , 171 S.W .3d at 595-96. Section 85 of the Te x as Probate Code provides the r equire ments for provinga “written will which cannot be produce d in court . . . .” T E X .P R O B .C O D E AN N . § 85 (Ve rnon Supp. 2009). Such a will shall be prove d in the same manne r as a written will produce d in court, but the proponent must show the ca use of its nonproduction as w ell. See id

. A pre sumption of revocation arises whe n the will proponent does not produc e the will in court, a nd it was last seen in the te stator’s possession or in a pla ce to whic h he had r eady acc ess. See M atter of Estate of Glover , 744 S.W .2d 939, 940 (Tex. 1988). Howe ver, this pre sumption may be over come by

proof showing

circ umstances c ontrary

to revoc ation, or proof

that some other pe rson fra

udulently destroy ed the will. In re Estate of Capps , 154 S.W .3d 242, 245 (Tex.App.--Te x arka

na 2005, no pet.) . The will proponent must establish the will’s

nonrevoc ation by

a pre pondera

nce of the evidenc e. SeeT E X .P R O B .C O D E AN N . § 88(b)( 3) (Ve rnon 2003); Huck

aby v. H uckaby , 436 S.W .2d 601, 605 (Tex.Civ.App.--Houston [1st Dist.] 1968, writ ref

used n.r.e .). A witness’s te stimony that he knew

of no ac t of revoc ation by the testator may

discharg e the will propone nt’s duty to prove nonre vocation. See B ryant v. Ham lin , 373 S.W .2d 837, 840 (Tex.Civ.App.--Dallas 1963, wr it refuse d n.r.e.)

. At trial, Mr. Morton testified he had pre pare d the 1993 will for Mr. Per ez, and that Mr. Pere z never a sked him to revoke that or to make a new will. Mrs. Pere z testi fied that Mr. Pere z put t he 1993 will in a ce dar c hest with a lock on it in their home, and he kept the key s
-5-to the chest. She be lieved that the will was in the c hest up until Mr. Perez died. She testified

that befor e his death, the key s to the chest hungin a place wher e any body could ac cess them, but afte r his death, the ke y s were put in a jewelr y box , which nobody

could ac cess. She testified the Daughters visited her home a fe w times after Mr. Pere z’s death, but to her knowle dg e, the Daughters only

took some photos from the che st before Mr. Pere z’s death. Ms. Marisela Chave z P olk, Mrs. Perez’s daughter a nd Mr. Pere z’s stepdaug hter, testified the Daughters g ather ed at Mrs. Per ez’s home for c erta in holiday s after Mr. Pere z’s death, wher e the ce dar c hest was located. She testified the Da ug hters opene d the che st when they came to Mrs. Perez’s home a fter Mr . Perez’s death, and took some items out. Mr. Pere z’s daug hter, Gr acie la I barr a, testified that Mr. Per ez filed the 1975 will with the County Clerk bec ause he perc eived it to be an importa nt document. She testified that the 1975 will provided Mrs. Pere z could have the house on Gra nt Avenue or

San Dieg o Avenue , but not both properties. The Daughters denie d knowingabout the 1993 will until Mr. Morton sent them a letter reg ardingit. The Daughters testified they only took some photos from the ce dar c hest, and althoug h they

visited Mrs. Perez’s home a f ew times af

ter Mr. Per ez’s death, they never enter ed the c hest ag ain af ter he died. The Da ug hters ar g ue the instant ca se is simil ar to Mingo v. Mingo , wher e the San Antonio court of a

ppeals a ffirme d the trial cour t’s denial of a

will’s probate ba sed on a f inding that the propone nt failed to over come the pr esumption that the dece dent re voked the c ontested will. See M

ingo v. Mingo , 507 S.W .2d 310 (Tex.Civ.App.--San Antonio 1974, writ ref ’d n.r.e .). We find Mingo is disti nguishable to the instant case . There , the will was kept in a ba nk safe ty deposit box with strict and re corde d acc ess. Mingo , 507 S.W .2d at 313. Fur ther, e vidence
-6-at trial showed that an inventory of the saf ety deposit box afte r dec edent’ s death did not reve al any will. Id . In contra st, Mr. Perez’s will was kept in ce dar c hest at home, a nd his family

had the ability to enter this che st, and that his daug hters had, in f act, take n some of Mr. Per ez’s persona l property

from the c hest befor e and a fter his de ath. Additionally , while the dec edent in Mingo made he r will nineteen year s befor e her death, Mr. Per ez made the c ontested will in November

1993, less than two y ear s befor e his death in March 1995. Id

. Viewingthe evidenc e in the lig ht most favorable to the trial court’ s findings, w e find that there was more than a sc intill a of e vidence to support the court’s de termination that Mrs. Pere z met her bur den to over come the pr esumption that Mr. Perez revoke d his 1975 will. See W olff , 94 S.W .3d at 520. The tria l court, as the f act f inder, wa s fre e to find cr edibility in Mrs. Perez’s version of the evidenc e, and c onclude that she met her bur den. See Long , 196 S.W .3d at 464; Bright , 171 S.W .3d at 595-96. Ta king a ll of the evidenc e into acc ount, we ca nnot conclude the evidenc e supportingthe trial cour t’s deter mination that Mrs. Perez satisfied her bur den to

overc ome the pre sumption of revocation was so weak as to be c lear ly wrongand manife stly unjust. See id . As such, the e vidence was leg ally and fa ctually

sufficie nt to support the court’s deter mination that Mr. Perez did not revoke the 1993 w ill. I ssue One is ove rrr uled. In I ssue Two, the D aug hters conte nd the evidenc e wa s leg ally and fa ctually

insufficient to support the findingthat Mrs. Perez was not in def ault by failingto present the 1993 w ill withi n four year s of Mr. Pere z’s death. They argue Mrs. Pere z shoul d have of fer ed the 1993 will for probate afte r her

initial consultation wit h Mr. Morton bec ause the consultation should have put her on notice of the proble ms associated w ith the will. The Daug hters conte nd Mrs. Perez’s testimony that she lac ked funds to pay Mr. Morton was unf

ounded bec ause she did not offer any
-7-evidenc e re g ardingher spe cific a ssets, liabilit ies, and income . They also argue Mrs. Pere z did not attempt to resolve this matter dire ctly with the Daughters, and that her purpose in probating the will was mere ly

to ensure Mr . Perez’s prope rty would pass on to her. The Te x as Probate Code provides: “No w ill shall be admitted to probate af ter the la pse of four y ear s from the de ath of the te stator unless it be shown by proof that the pa

rty applying f

or such probate was not in def ault in failing to present the sa me for pr obate within the four y ear s afor esaid . . . .” T E X .P R O B .C O D E AN N . § 73(a) (Ve rnon 2003). “De fault” me ans the fa ilure to probate a will beca use of the a

bsence of re asonable diligenc e on the pa

rt of the pa

rty offe ringthe instrument. Schindler v. Sc hindler , 119 S.W .3d 923, 929 (Tex.App.--Da llas 2003, pet. denied) . Whether the propone nt of a will is in default in not presentingthe will within four y ear s of the testator’ s death is ordinar ily a fa ct question for the trial court. Id . The propone nt has the burde n to show she is not in default in prese nting the w ill for pr obate within the prope r time. Id . The propone nt would not be considere d in defa ult if she did not know of the existence of the will, provided she wa s not neg lige nt in failing to discove r whether there was a

will. Id

. In Kamoos v. W

oodward , the cour

t affir med the trial c ourt’s judg ment, which conc luded the testator’ s wife, the w ill proponent, was not in defa ult for fa iling to offe r the will for pr obate as a muniment of title within four y ear s of the testator’ s death. 570 S.W.2d 6, 8-9 (Tex.Civ.App.--San Antonio 1978, writ ref ’d n.r.e .). The w ill proponent in Kamoos had limited financ ial resour ces a

nd did not think i t was nec essar y to probate the will due to the nature of the proper ty and her resour ces. Id . Only

afte r an oil compa

ny advised he r to probate the will, did she bec ome awa

re that the dece dent was he ir to a royalty interest, she of

fer ed the will for pr obate.
-8-Id . The c ourt deter mined this evidence was suff icient to support the trial cour t’s finding that the will proponent was not in def ault and probated the will as a muniment of title. Id

. Simi lar to the will proponent in Kamoos , Mrs. Perez had limited financ ial resour ces: she testified that she c ould not affor d to pay her f ormer c ounsel, Mr. Morton, and she had to apply for a loan to fix some doors that we re f alling a part. More over, Mr s. Perez testified that her educational background wa s limi ted to g rade school. L ike the will proponent in Kamoos , Mrs. Perez believe d it was unnec essar y to probate the will; she did not know there wa s a time limit to probate a

will. The Daughters neve r aske d for a share of Mr. Pere z’s estate prior to this action. She also be lieved the Mr. Mor ton had taken c are of the matter reg ardingthe will. Sim ilar to Kamoos , it was not until a third party , the Daughters, filed the petition for deter mination of heirship that Mrs. Pere z became a war e of the need to pr obate the 1993 w ill, and she did so within thirty day s of the Da

ug hters’ pe tition. As such, the rec ord shows there was no a bsence of

rea sonable dilig ence on Mrs. Perez’s par t in probating the 1993 will, and so she wa s not in defa ult. See Sc hindler , 119 S.W .3d at 929. Viewingthe evidenc e in the lig ht most favorable to the trial court’ s findings, the re w as more than a

scintilla of evidenc e to support the cour t’s deter mination that Mrs. Perez was not in defa ult for fa iling to pre sent the 1993 will for proba te within four y ear s after

Mr. Pere z’s death. See W olff , 94 S.W .3d at 520. The tria l court, as the f act f inder, wa s fre e to find cr edibility in Mrs. Perez’s ver sion of the evidenc e, and c onclude that she was not in defa ult for fa iling to probate the will within the statutory time limi t. See Long , 196 S.W .3d at 464; Bright , 171 S.W .3d at 595-96. Ta

king a ll of the evidenc e into acc ount, we ca nnot conclude the evidenc e supporting the trial court’ s determination that Mrs. Pere z was not in default for f ailing to of

fer
-9-the will for probate within four y ear s after Mr. Pere z’s death was so we ak as to be clea rly wrong and manife stly

unjust. See Long , 196 S.W . 3d at 464. As such, the e vidence was leg ally and fac tually sufficie nt to support the trial court’s de termination that Mrs. Pere z was not in default and its admission of the will to probate as a muniment of titl e. We over rule I ssue Two. The trial c ourt’s judg ment is affirme d.

August 25, 2010 DAVI D WEL L I NGTONCHEW, C hief Just ice Be fore Chew, C.J ., Rivera, J., and Gomez, J udg e Gomez, J udg e (Sitting by Assignme nt)

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