Opinion issued June 5, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00586-CV

———————————

MARY ANN ORR AND CHARLOTTE ORR, Appellants

V.

LUCY ANN WALKER, Appellee

On Appeal from the 1A District Court

Tyler County, Texas1

Trial Court Case No. 22612

O P I N I O N

 1 The Texas Supreme Court transferred this appeal from the Court of Appeals for 

the Ninth District of Texas. Misc. Docket No. 13-9097 (Tex. June 27, 2013); see 

also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005) (authorizing transfer of 

cases). We are unaware of any conflict between precedent of the Court of Appeals 

for the Ninth District and that of this Court on any relevant issue. See TEX. R.

APP. P. 41.3.
2

Mary Ann Orr filed an application to probate the will of her grandmother, 

Fannie Mable Walker. The trial court denied the application. Mary and her sister, 

Charlotte Orr, filed this notice of appeal. In three issues, they argue (1) the 

evidence was legally and factually sufficient to establish that Mary was not in 

default in failing to present Fannie’s will for probate, (2) the trial court erred by 

relying on the testimony of Lucy Ann Walker, and (3) the trial court abused its 

discretion by denying the motion to consolidate the probate of Fannie’s will with 

another matter.

We affirm.

Background

Fannie Mable Walker had two children, Marguerite Walker Griffith and 

Kenneth Wayne Walker. Marguerite had two daughters, Mary Ann Orr and 

Charlotte Orr, the appellants in this case. Kenneth had a wife, Lucy Ann Walker, 

the appellee in this case.

Fannie died on March 8, 1992. It is undisputed that she had a will and that 

the will was never probated. The will designated Kenneth as the executor of her 

will.

Marguerite died some time in 2006. Marguerite had a will, and Charlotte 

was named the executor of that will. In carrying out her duties to execute 
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Marguerite’s will, Charlotte found Fannie’s will in Marguerite’s files. Both 

Charlotte and Mary learned of Fannie’s will for the first time in this process. 

Some time in 2007, Kenneth asked Charlotte for a copy of Fannie’s will. 

Charlotte sent a copy to him. Kenneth died in July 2009. Kenneth had a will, and 

Lucy was named the executor of that will. 

On July 25, 2012, Mary filed an application to probate Fannie’s will. Lucy 

filed an opposition to the application. A hearing on the matter was held on May 6, 

2013. The parties acknowledged that the will had not been probated within four 

years of Fannie’s death. The main dispute at the hearing was whether Mary was in 

default in failing to present the will for probate. The trial court ultimately denied 

the application to probate Fannie’s will as well as the motion to consolidate the 

probate of Fannie’s will with another matter.

Application to Probate Will

In their second issue, Mary and Charlotte argue the evidence was legally and 

factually sufficient to establish that Mary was not in default in failing to present 

Fannie’s will for probate.

A. Standard of Review

“The final test for legal sufficiency must always be whether the evidence at 

trial would enable reasonable and fair-minded people to reach the verdict under 
4

review.”2 City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In 

performing a legal-sufficiency review, we must credit favorable evidence if 

reasonable fact finders could credit it and disregard contrary evidence unless 

reasonable fact finders could not disregard it. Id. “If the evidence . . . would 

enable reasonable and fair-minded people to differ in their conclusions, then [fact 

finders] must be allowed to do so.” Id. at 822. “A reviewing court cannot 

substitute its judgment for that of the trier-of-fact, so long as the evidence falls 

within this zone of reasonable disagreement.” Id. Although the reviewing court 

must consider evidence in the light most favorable to the verdict, and indulge every 

reasonable inference that would support the verdict, if the evidence allows only 

one inference, neither fact finder nor the reviewing court may disregard the 

inference. Id. 

Appellants attacking the legal sufficiency of an adverse finding on an issue 

on which they had the burden of proof must demonstrate that the evidence 

conclusively establishes all vital facts in support of the issue. Dow Chem. Co. v. 

Francis, 46 S.W.3d 237, 241 (Tex. 2001). The appellants must show that there is 

 2 Mary and Charlotte argue that the standard of review for their legal and factual 

sufficiency challenges should be the same as the standard of review for challenges 

of administrative rulings. They provide no explanation for why this standard of 

review should apply. Because there is no administrative ruling in this case, we do 

not apply the standard of review applying to such rulings.
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no evidence to support the fact finder’s finding and that the evidence conclusively 

establishes the opposite of the finding. See id. 

To determine whether the evidence is factually sufficient to support a 

finding, an appellate court considers and weighs all evidence that was before the 

trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). “When a party attacks 

the factual sufficiency of an adverse finding on an issue on which she has the 

burden of proof, she must demonstrate on appeal that the adverse finding is against 

the great weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 

46 S.W.3d 237, 242 (Tex. 2001). As the reviewing court, we may not act as fact

finder and may not pass judgment on the credibility of witnesses or substitute our 

judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 

S.W.3d 757, 761 (Tex. 2003).

B. Analysis

Former section 73 of the Texas Probate Code provided that “[n]o will shall 

be admitted to probate after the lapse of four years from the death of the testator 

unless it be shown by proof that the party applying for such probate was not in 

default in failing to present the same for probate within the four years aforesaid.” 

Act of March 16, 1955, 54th Leg., R.S., ch. 55, sec. 73 1955 Tex. Gen. Laws 88, 

112 (amended 1971) repealed by Act of May 26, 2009, 81st Leg., R.S., ch. 680, 
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§ 10, 2009 Tex. Gen. Laws 1512, 1731.3 Fannie’s will was not probated within 

four years of her death. Accordingly, Mary bore the burden to establish that she 

was not in default in failing to present Fannie’s will for probate within four years 

of Fannie’s death. See id. 

“As used in this statute, ‘default’ means ‘failure to probate a will due to the 

absence of reasonable diligence on the part of the party offering the instrument.’” 

In re Estate of Cornes, 175 S.W.3d 491, 495 (Tex. App.—Beaumont 2005, no pet.)

(quoting Schindler v. Schindler, 119 S.W.3d 923, 929 (Tex. App.—Dallas 2003, 

pet. denied)). Lucy argued at trial that Marguerite defaulted in failing to present 

Fannie’s will for probate and that Marguerite’s default should be imputed to Mary 

and Charlotte. There is a split between the courts of appeals about whether any 

default by an heir to the will passes on to the heir’s descendants or legatees. 

Compare Schindler, 119 S.W.3d at 929 (holding “such default would bar his or her 

descendants or legatees from any right to have such will probated”) with In re 

Estate of Campbell, 343 S.W.3d 899, 903, 905–08 (Tex. App.—Amarillo 2011, no 

pet.) (holding default of another does not preclude non-defaulting applicant from 

offering a will for probate). Neither this Court nor the Beaumont Court of Appeals 

has ruled on this issue. Nor do we need to rule on this issue because we hold there 

 3 The corollary to this provision in the new Texas Estates Code is section 256.003. 

See TEX. EST. & G’SHIP CODE ANN. § 256.003(a) (Vernon Supp. 2013).
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is sufficient evidence in the record to establish that Mary and Charlotte defaulted 

by their own inaction.

Both Mary and Charlotte testified that they first learned of Fannie’s will 

when their mother, Marguerite, passed away. Marguerite passed away in 2006. 

Mary and Charlotte also testified that Kenneth asked for a copy of the will in 

November 2007. Even the most generous interpretation of the evidence in favor of 

Mary and Charlotte establishes that Mary did not file the application to probate 

Fannie’s will until nearly five years after they were aware of the will and sent a 

copy to Kenneth.

One purpose of former section 73 was “to impose a reasonable limit on the 

time in which the property of a person dying testate should be distributed among 

[her] legatees, after payment of . . . her debts.” Campbell, 343 S.W.3d at 902–03. 

Even assuming the default of an heir under a will cannot be imputed to the heir’s 

descendants, it would defeat the purpose of former section 73 to impose a fouryear deadline on those who knew about or reasonably could have discovered the 

will but to impose no deadline whatsoever on those who discovered the will after 

the four-year deadline. In other words, even assuming that any default of 

Marguerite for defaulting on the original four-year deadline to file an application to 

probate Fannie’s will cannot be imputed to Mary and Charlotte, in order to 

maintain the status of non-defaulting, Mary and Charlotte had to take reasonable 
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actions to timely file the application after the date of discovery. See id. (upholding 

granting of application to probate will when applicant was non-defaulting and 

offered will within seven months of discovery). By waiting at least nearly five 

years after the discovery of Fannie’s will before filing the application to probate 

the will, Mary and Charlotte lost any status that they may have had as nondefaulting.

In their brief on appeal, Mary and Charlotte suggest that their time to file the 

application did not begin to run until after Kenneth’s death in 2009 because 

Kenneth was named as the executor in Fannie’s will. We disagree. “An executor 

named in a will or any interested person may make application to the court of a 

proper county for an order admitting a will to probate.” Act of March 16, 1955, 

54th Leg., R.S., ch. 55, sec. 76 1955 Tex. Gen. Laws 88, 112–13 repealed by Act 

of May 26, 2009, 81st Leg., R.S., ch. 680, § 10, 2009 Tex. Gen. Laws 1512, 1731 

(formerly TEX. PROB. CODE ANN. § 76) (emphasis added). Mary and Charlotte’s 

mother, Marguerite, was awarded property under Fannie’s will. When she passed 

away in 2006, Marguerite’s interest in Fannie’s will passed to Mary and Charlotte

pursuant to Marguerite’s will. Accordingly, Mary and Charlotte were interested 

persons in 2006 and could have filed the application to probate Fannie’s will at that 

point. Instead, they waited at least nearly five years.
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We hold the evidence is legally and factually sufficient to support the trial 

court’s denial of Mary’s application to probate Fannie’s will. We overrule Mary 

and Charlotte’s second issue.

Mary and Charlotte’s argue in their first issue that the trial court could not 

rely on Lucy’s testimony in reaching its decision. Because none of our analysis of 

Mary and Charlotte’s second issue relies on evidence that came exclusively from 

Lucy, we do not need to reach this issue. See TEX. R. APP. P. 47.1 (requiring 

appellate courts to address every issue raised and necessary to final disposition of 

the appeal). 

Their third issue complains of the trial court’s denial of a motion to 

consolidate the probate of Fannie’s will with another matter. Because we have 

upheld the trial court’s denial of the application to probate Fannie’s will, there can 

be no error in the trial court’s denial of the motion to consolidate. Accordingly, we 

overrule Mary and Charlotte’s third issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Sharp.