No. 04-14-00812-CV

IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT OF TEXAS AT SAN ANTONIO

IN THE ESTATE OF CONSUELLA PERKINS ULBRICH

From the Probate Court No. One, Bexar County, Texas Trial Court Cause No. 2011-PC-0686 Honorable Polly Jackson Spencer, Judge Presiding

APPELLANT’S BRIEF

Respectfully submitted, Philip M. Ross ORAL ARGUMENT REQUESTED State Bar No. 017304200 1006 Holbrook Road San Antonio, Texas 78218 Phone: 210/326-2100 Email: ross_law@hotmail.com By: /s/ Philip M. Ross Philip M. Ross Attorney for Appellant Douglas J. Ulbrich ACCEPTED 04-14-00812-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/10/2015 8:28:48 AM KEITH HOTTLE CLERKIDENTITY OF PARTIES AND COUNSEL

Party: Counsel: Douglas J. Ulbrich Philip M. Ross State Bar No. 17304200 Appellant 1006 Holbrook Road San Antonio, Texas 78218 Phone: 210/326-2100 Email: ross_law@hotmail.com Bob Hope, Darlene Wilson Kristine Arlitt and Debra Bird 206 Locust Street San Antonio, Texas 78212 Appellees Phone: 210/281-6101 FAX: 210/281-6105 Email: kristine@arlittlaw.com

iTABLE OF CONTENTS Page

IDENTITY OF PARTIES AND COUNSEL ................................ ii TABLE OF CONTENTS ...................................................... iii INDEX OF AUTHORITIES .................................................. iv STATEMENT OF THE CASE .................................... .......... 1 STATEMENT OF JURISDICTION ......................................... 2 STATEMENT REGARDING THE RECORD............................... 2 ISSUES PRESENTED ........................................................... 2 SUMMARY JUDGMENT EVIDENCE ........................... ....................... 3 STATEMENT OF FACTS ..................................................... 5 STANDARD OF REVIEW .................................. ................................ 10 SUMMARY OF ARGUMENT .............................................. 10 ARGUMENT AND AUTHORITIES ......................................... 12 1 Whether the trial court granted summary judgment i n error, when there were genuine issues of material f act as to each element of Douglas' claim to set aside h is ranch as his rural homestead? ...................... .............................. 12 2 Whether the trial court erred in finding as matter s of law that the homestead of the Decedent was 3939 Starhil l, San Antonio, Texas, when there were genuine issues of material fact that the Decedent's homestead was the family ranch in Medina County? ..................... ......................... 19

ii3 Whether the trial court erred in finding as a matt er of law

that the Texas Constitution's Survivor Homestead g ranted to Douglas Ulbrich was 3939 Starhill, San Antonio, Texas, when there were genuine issues of material f act that the Decedent's homestead was the family ranch in Medina County? ..................................... ................................ 20 4 Whether the trial court erred in finding as a matt er of law that Douglas Ulbrich voluntarily abandoned and discontinued use of the Texas Constitution's Surviv or Homestead located at 3939 Starhill, San Antonio, Te xas, when there were genuine issues of material fact that the Decedent's homestead was the family ranch in Medina County? ............................................ ..................................... 21 5 Whether the trial court erred in finding as a matt er of law that Douglas Ulbrich cannot transfer the Texas Constitution's Survivor Homestead to any other prop erty? .... 32 CONCLUSION and PRAYER............................................. 45 CERTIFICATION ........................................................... 45 CERTIFICATE OF COMPLIANCE ..................................... 45 CERTIFICATE OF SERVICE ............................................ 46

iiiINDEX OF AUTHORITIES

CASES PAGE(S)
Andrews v. Security Nat. Bank of Wichita Falls 50 S.W.2d 253 (Tex. 1932) ........................... ............................ 35 Bahn v. Starcke 34 S.W. 103 (59 Am. St. Rep. 40) ................... ........................ 37 Blake v. Fuller 184 S.W.2d 148 (Tex.Civ.App. 1944) ................. .................... 31, 33 Blum v. Gaines 57 Tex. 119 (1882) ................................. .................................. 25, 38 Brown v. Reed 48 S.W. 537 (Tex.Civ.App.1898, writ ref'd) ......... ................... 24 Carson v. McFarland 206 S.W.2d 130 (Tex.Civ.App.--San Antonio 1947, writ ref'd) ....... ................... 12 Casso v. Brand 776 S.W.2d 551 (Tex. 1989) ......................... ............................ 10 Clift v. Kaufman & Runge 60 Tex. 64 (1883) .................................. .................................... 24 Cobbs v. Coleman 14 Tex. 594 (1855) ................................. ................................... 12 Cocke v. Conquest 35 S.W.2d 673 (1931) ................................. ............................. 29 De Ayala v. Mackie 193 S.W.3d 575 (Tex 2006) .......................... ............................ 14, 15 ivCASES PAGE(S)

Foley v. Holtkamp 66 S.W. 891 (Tex.Civ.App.Galveston, 1902, writ ref. ) ............ 30 George v. Taylor 296 S.W.2d 620 (Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.) ................... 25 Good v. Good 293 S.W. 621, 623 (Tex.1927) ....................... ........................... 25 Hickman v. Hickman 149 Tex. 439, 234 S.W.2d 410 (1950) ................ ...................... 12 Hill v. Aldrich 242 S.W.2d 465 (Tex.Civ.App.--San Antonio 1951, writ dism'd) ...... ........... 25 Hunter v. Clark 687 S.W.2d 811 (Tex.App. —San Antonio 1985) ........ ...... 24, 26 In the Estate of Consuella Perkins Ulbrich, decease d 04-12-00514-CV (Tex. Civ. App. - San Antonio, January 15, 2014) . . 13, 15, 16, 18, 19 Jenkins v. Hutchens 287 S.W.2d 295 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.) ... ...................... 24 Kessler v. Draub 52 Tex. 575 (36 Am. Rep. 727) ...................... ............................ 28 Lehmann v. Har-Con Corp. 39 S.W.3d 191, 192 (Tex. 2001) ..................... ....................... 14 Lindsley v. Lindsley 139 Tex. 512, 163 S.W.2d 633 (1942) ................ ........................ 25

vCASES PAGE(S)

Provident Life & Accident Insurance Co. v. Knott 128 S.W.3d 215-216 (Tex. 2003) ..................... ....................... 10 Majeski v. Estate of Majeski 163 S.W.3d 102 (Tex. App. - Austin 2005, no pet.) ................ 16, 17, 18 McGaughey et al. v. American Nat. Bank 92 S.W. 191, , writ denied .........................

............................... . 31 Petrus v. Cage Brothers 128 S.W.2d 537 (Tex.Civ.App.--San Antonio 1939, writ ref'd) .......

................... 25, 26 Pressley's Heirs v. Robinson 57 Tex. 453, 460 (1882) ............................. ................................. 25 Rancho Oil Co. v. Powell 175 S.W.2d 960 (1943) .............................. ................................ 25 Ratliff v. Smith 178 S.W.2d 138, 141 (Tex.Civ.App. 1943) ........... ................... 41 Salmons v. Thomas 62 S.W. 102 (1901, no writ) ........................ ............................... 25 Sargeant v. Sargeant 19 S.W. 382 (Tex.Civ.App.--Fort Worth 1928, no writ ) ............. 25 Schneider v. Bray 59 Tex. 668 (1883) ................................. ...................................... 29 Shippey et al. v. Hough 47 S.W. 672 (Civ. App. Texas 1898), writ refused ... ................... 32 Simank v. Alford 441 S.W.2d 234 (Tex.Civ.App. —Austin 1969) ......... ................ 27 28 29

viCASES PAGE(S)

Sparks v. Robertson 203 S.W.2d 622 (Tex.Civ.App. Austin 1947, writ ref' d) ......... 26 Spencer v. Schell 173 S.W. 867 (1915) ................................ ................................. 24 Tiboldi v. Palms 78 S.W. 726, aff'd 79 S.W. 23 (1904) ............... ........................ 25 Trawick v. Harris 8 Tex. 312 (1852) .................................. .................................... 29 White v. Blackman 168 S.W.2d 531 (Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m.) ................. 26 Wicker v. Rowntree 185 S.W.2d 150 (Tex.Civ.App.--Amarillo 1945, writ ref'd w.o.m.) ... ................. 24 Williams v. Estate of Williams 548 S.W.2d 492 (Tex.Civ.App. —Austin 1977) ......... .............. 42 Williams v. Williams 569 S.W.2d 867 (Tex. 1978) ......................... ............................. 26 Woods v. Alvarado State Bank 19 S.W.2d 35 (1919) ................................ .............................. 29, 36, 37

STATE STATUTES AND RULES PAGE(S) Texas Constitution, Sec. 52, Art. 16 ............... ............................ 35 TEX. CONST. art. XVI, § 52 .......................... ............................. 24 Texas Probate Code § 271(b) ........................ ......... 8, 9, 10, 13, 21, 22, 23

viiSTATE STATUTES AND RULES PAGE(S)

Tex.Prob.Code Ann. §§ 271, 272, 283, 284 (1956) ..... ................. 26 Tex.Prop.Code Chapter 41 ........................... ................................ 8 TRAP Rule 25 ....................................... ....................................... 2 Vernon's Ann.Tex.Const. Art. 16, § 52 (1955) ....... .................... 42

TREATISES PAGE(S)

The Widow's Exemption in Texas, 25 Baylor L.Rev. 34 6 (1973) .. 26

viii04-14-00812-CV
IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SITTING AT SAN ANTONIO
IN THE ESTATE OF CONSUELLA PERKINS ULBRICH

_________________________________________________________________

On appeal from Probate Court No. One, Bexar County, Texas Honorable Polly Jackson Spencer, presiding

APPELLANT'S BRIEF

TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF AP PEALS: Now comes, Douglas J. Ulbrich (“Douglas”), and files his bri ef appealing the Order granting summary judgment entered on November 5, 2 014, and in support would show: STATEMENT OF CASE This is an appeal by Douglas J. Ulbrich, who is the surviving s pouse of Consuela Perkins Ulbrich, deceased, and the record owner of a 160 acre ranch in Medina County, Texas, which he has designated as his probate homestead. This appeal is from an Order of Judge Polly Jackson Spencer, Probate Court No. 1, Bexar County, Texas granting summary judgment. [CR1 269-27 0]. The summary 1judgment, was signed on November 5, 2014. [CR1 269-270]. Ulb rich timely filed

a notice of appeal on November 21, 2014. The Clerk's d ocket sheet is attached at Appendix Tab 1. STATEMENT OF JURISDICTION Douglas files this appeal pursuant to TRAP Rule 25. Douglas s ubmits that timely filed a notice of appeal [CR1 271-273] on November 24, 2014, he requested preparation of the Clerk's Record [CR1 274-276] o n November 25, 2014, and he has complied with all conditions precedent to in voking the jurisdiction of the Fourth Court of Appeals.

STATEMENT REGARDING THE RECORD The Clerk’s Record consisting of two volumes has been filed. There was no Reporter's Record for the hearing on the motion for summary judgment. ISSUES PRESENTED 1 Whether the trial court granted summary judgment in error, when there were genuine issues of material fact as to each element of Douglas ' claim to set aside his ranch as his rural homestead? 2 Whether the trial court erred in finding as matters of law th at the homestead of the Decedent was 3939 Starhill, San Antonio, Texas, when there were genuine

2issues of material fact that the Decedent's homestead was th e family ranch in

Medina County? 3 Whether the trial court erred in finding as a matter of law th at the Texas Constitution's Survivor Homestead granted to Douglas Ulbrich was 3939 Starhill, San Antonio, Texas, when there were genuine issues of materi al fact that the Decedent's homestead was the family ranch in MedinaCounty? 4 Whether the trial court erred in finding as a matter of law th at Douglas Ulbrich voluntarily abandoned and discontinued use of the T exas Constitution's Survivor Homestead located at 3939 Starhill, San Antonio, T exas, when there were genuine issues of material fact that the Decedent's homestead was the family ranch in Medina County? 5 Whether the trial court erred in finding as a matter of law th at Douglas Ulbrich cannot transfer the Texas Constitution's Survivor Homestead to any other property? SUMMARY JUDGMENT EVIDENCE 1 Homestead Affidavit of Douglas Ulbrich, dated Apri l 11, 2011 [CR1 123]; 2 Homestead Affidavit of Douglas Ulbrich, dated January 10, 2012 [CR1 124- 127];

33 Affidavit of Douglas Ulbrich, dated September 24, 2012 [CR1 173-182];

4 Affidavit of Mary Dahlman, dated December 17, 2012 [CR1 146-151]; 5 Affidavit of Al Cargen, dated December 17, 2012 [C R1 134-139]; 6 Affidavit of Carolyn Watson, dated December 17, 20 12 [CR1 140-145]; 7 Formal Bill of Exceptions with exhibits and affidavit, dat ed 9-24-12 [CR1 156-172]; 8 Verified Supplemental Formal Bill of Exceptions w/exhibi ts dated 10-3-12 [CR1 246-268]; 9 Affidavit of Karon Robertson, dated 10-1-10 [CR1 1 28-130]; 10 Affidavit of Gary Neubauer, dated 9-27-10 [CR1 13 1-133]; 11 Homestead photos [CR1 183-245]; 12 Community National Bank letter with attachment, dated 12 -10-10 [CR1 262-264]; 13 Medina County Appraisal District Application for Homest ead Exemption 2011 [CR1 253-261]; and 14 Deed to 80 acres from Laverne Raish, dated 2-1-79 [CR1 265-268]. 15 Rule 11 agreement, dated August 26, 2014, regarding exemp t personal property. [CR2 25-26].

4FACTUAL BACKGROUND

Douglas and Consuella Ulbrich were married on October 8, 196 6 in Kerr County, Texas. They raised her three children from a prior marriage. Douglas was a rancher and managed a number of cattle ranches and hunting l eases. Consuella owned and managed a small chemical company and other busines ses. At the time of their marriage they each owned separate property, and the y kept separate bank accounts and retirement accounts associated with the busin esses they owned and operated prior to and during their marriage. In August 1973, Douglas and Consuella bought a house at 3939 S tarhill in San Antonio. In 1978, Douglas and three of his siblings each i nherited a 25% undivided interest in 320 acres of his parents’ ranch in Medi na County, Texas. In February 1979, Douglas bought his sister Laverne’s 25% undi vided interest in the ranch. [CR1 124]. In March 1979, Douglas and his other two sib lings partitioned their respective 1⁄2 undivided interests in the 320 acre ranch . Douglas and Consuella ended up with the 160 acres described in the Partit ion Deed recorded at Vol. 288, Pages 57-60 filed in the Deed Records of Medina Coun ty, Texas on April 5, 1979. [CR1 125]. Although they divided their time between their house in San A ntonio and

5the ranch home in Medina County, they considered the family r anch to be their

rural homestead from the time Douglas inherited his share fr om his parents and purchased his sister Laverne’s undivided interest. They sp ent most of their time at their ranch home. Douglas built an 8’ high game fence around the entire 160 acre tract and raised Axis deer. They had a deer hunting operation , farmed, and raised goats. The family rural homestead was a principal source of f amily income after Douglas retired from his other ranching operations. Douglas and Consuella planned to build a new home on a knoll wi th a nice view of the surrounding land, and Douglas cleared about 30 ac res for a home site. However, when Consuella became ill towards the end of her lif e, they spent more of their time in their San Antonio residence, and they never g ot around to building their dream home at the ranch. Nevertheless, now that Consue lla is buried in the Ulbrich family plot in Hondo, Medina County, Douglas still p lans to build the hilltop home on the home site that he cleared. In 1979, Douglas inherited an undivided interest in his moth er’s two houses in Hondo. He acquired the remaining interest in his mother’s houses by gift or purchase from his siblings. One of the houses in Hondo was a re nt house and the other was demolished and not rebuilt.

6So, at the time of Consuella’s death on August 22, 2010, Mr. an d Mrs.

Ulbrich owned three residences, each of which was a potentia l homestead. However, they considered their 160 acre family ranch home to be their rural homestead, and they never abandoned it. [CR1 125]. This fact is supported by the affidavits of Karon Robertson and Gary Neubauer as well as Do uglas Ulbrich. [CR1 128 ¶ 2], [CR1 131 ¶ 2]. For a number of years, Douglas and Consuella claimed a homest ead property tax exemption for their residence in San Antonio, b ut that exemption was ended in 2010. The fact that Mr. and Mrs. Ulbrich claimed a homestead property tax exemption on their San Antonio residence was not an aband onment of their Medina County rural homestead. After Consuella’s death, Do uglas filed an Application for Residential Homestead Exemption with the M edina County Appraisal District in April 2011 for tax year 2011. Mr. and Mrs. Ulbrich also owned furnishings and other person al property as well as motor vehicles, ranch vehicles, equipment and imple ments, most of which was exempt property protected from attachment pursuant to the Texas Constitution. Mr. Ulbrich has timely filed an affidavit in s upport of his application to set aside exempt property, which describes his property that he claims to be

7exempt from partition, sale or distribution pursuant to his rights as a surviving

spouse under the Texas Constitution, Texas Property Code an d Texas Probate Code, Section 271(b). In April 2011, after Consuella’s death but before Court appr oval of an inventory and list of claims, Mr. Ulbrich filed an affidavit in the Deed Records of Medina County voluntarily designating his home and rural pr operty in Medina County, Texas as his homestead pursuant to Tex.Prop.Code Ch apter 41. [CR1 152-155] He filed another affidavit declaring his Medina Co unty rural homestead in January 2012. The voluntarily designation of Douglas Ulb rich’s homestead before the preparation and court approval of an inventory of the property of Mrs. Ulbrich’s estate has been a matter of public recordfor the past year. Douglas' rural homestead is described as 160 acres of land to gether with improvements including a residence situated about 10 miles N 16 degrees west of Hondo, Medina County, Texas, out of Survey No 419, Abstract N o. 1174, H. E. & W. T. R.R. Co., original Grantee, being the South portion of the division of a certain 404.58810 acre tract of land surveyed by John Poerne r and Associates on March 23, 1977, said 404.58810 acre tract of land being the re sidue of a certain 415 acre tract of land conveyed by Deed to J. E. Ulbrich from Wi llie Schlentz,

8dated February 15, 1947, as recorded in Volume 138 on page 611 of the Deed

Records of Medina County, Texas, and being more particularl y described by metes and bounds in said Deed, which is incorporated herein by refe rence for all purposes. [CR1 125 ¶¶ 5 & 6] . Douglas would show that his home in Medina County qualifies a s his homestead because title to the property is in his name; he res ides at the property as his home; he has used the property as his rural home for many ye ars; he considers the property to be his only homestead; the homestead include s a house and 160 acres; he has declared his intention for the property to be hi s homestead; he does not claim any other property to be his homestead; he has advis ed the Medina County Appraisal District that he claims the property as his homestead for taxation purposes; his drivers license shows the homestead as his res idence address; and he has motor vehicles registered at his homestead addr ess. [CR1 125 ¶¶ 7-10] . Douglas claims a right as surviving spouse to use or occupy th e rural homestead for the rest of his life pursuant to Tex.Prop.Code Section 283, and he has timely filed an application to set aside his exempt homes tead pursuant to the Texas Probate Code, Section 271(b). [CR1 152-155].

9STANDARD OF REVIEW

In order to establish a right to a traditional motion for summ ary judgment, the movant must show that there is no genuine issue of materia l fact and the movant is entitled to judgment as a matter of law. Provident Life & Accident Insurance Co. v. Knott, 128 S.W.3d 215-216 (Tex. 2003). If the movant meets this burden, then the non-movant must produce summary judgment evidence to raise a genuine issue of material fact. Casso v. Brand , 776 S.W.2d 551, 556 (Tex. 1989). If the non-movant does not succeed in raising a genuin e issue of material fact, then the motion must be granted. SUMMARY OF ARGUMENT Douglas claims a right to designate his rural homestead and t o have it set aside for his use and benefit during his lifetime pursuant to the Texas Probate Code, Section 271 after his wife died intestate. Douglas submits that he followed the appropriate procedure by applying to the court to set aside his 160 acre ranch in Medina County, Tex as, which he had occupied and used for homestead purposes during his marriag e to the deceased and designated as his probate homestead by applying to the co urt to set it aside. [CR1 152-155]. However, on August 10, 2012, the trial court e rroneously signed

10an Order Awarding Exempt Property and denied Douglas' right to designate his

ranch as his probate homestead. Instead, the trial court err oneously set aside Douglas' San Antonio residence at 3939 Starhill as his probate homestead. [CR1 20 – Dkt. 00013]. Douglas appealed the trial court's order to the Fourth Court of appeals, Appeal No. 04-12-00514-CV, and the Order awarding exempt property, dated August 10, 2012 was reversed and remanded. After the case was remanded, the parties signed a Rule 11 agre ement on August 26, 2014 setting aside exempt personal property for D ouglas' use and benefit as the surviving spouse. On November 5, 2014, the tri al court entered an Order granting motion to enter an Order concerning truck and automobiles, which resolved claims to set aside exempt personal property for Do uglas' use and benefit as surviving spouse pending a trial on the merits. [CR1 21 - Docket Entry 00043]. Then, on October 14, 2014, Consuella's heirs filed a motion f or summary judgment requesting an order declaring that Douglas was awarded his residence at 3939 Starhill, San Antonio, Texas as his probate homestead a nd that he had abandoned it, when he agreed that it could be sold as non-exem pt property owned in common with Consuella's Estate. The trial court granted the heirs' motion for summary judgment in error on November 5, 2014, notwithstand ing genuine issues

11of material fact to the contrary. [CR1 21 – DocketEntry 00044].

Douglas filed a notice of appeal and requested a temporary st ay before the trial court had an opportunity to sign orders directing him t o turn over keys to his ranch to Consuella's heirs and appointing commissioners to make a recommendation to partition in kind the 25% undivided inter est in the 160 acre ranch, which is owned by Consuella's estate. Therefore, Douglas requests this Court to reverse the trial court's summary judgment and remand the matter for a jury trial on the merits of his claim.

ARGUMENT AND AUTHORITIES Exemptions statutes have been traditionally construed lib erally by our courts. See Cobbs v. Coleman, 14 Tex. 594 (1855); Hickman v. Hickman, 149 Tex. 439, 234 S.W.2d 410 (1950). They are never restricted in th eir meaning and effect so as to minimize their operation upon the beneficent object s of the statutes, and questions regarding the extent of exemptions are generally resolved in favor of the one claiming exemption. Id., 234 S.W.2d at 413. Carson v. McFarland, 206 S.W.2d 130, 132 (Tex.Civ.App.--San Antonio 1947, writ ref'd). 1 The trial court granted summary judgment in error because there were genuine issues of material fact as to each element of Douglas ' claim to set aside his ranch as his probate homestead.

12In its opinion, dated January 15, 2014, in the prior appeal in this case this

Court stated: “Before the inventory, appraisement, and lis t of claims is approved or before the filing of the affidavit in lieu of the inventory , appraisement, and list of claims, a surviving spouse may apply to the probate court p ursuant to section 271(b) of the Probate Code “to have exempt property, includi ng the homestead, set aside by filing an application and a verified affidavit list ing all the property that the applicant claims is exempt.” See TEX. PROB. CODE ANN. § 271(b) (West Supp. 2012). An applicant under section 271(b) “bears the bu rden of proof by a preponderance of the evidence at any hearing on the applicat ion.” Id . § 271(c). The probate court “shall set aside property of the decedent' s estate that the court finds is exempt.” Id. ” In the Estate of Consuella Perkins Ulbrich, deceased , 04- 12-00514-CV, at 13 (Tex. Civ. App. - San Antonio, J anuary 15, 2014). Douglas submits that he is a surviving spouse, and he filed an application and a verified affidavit listing all the property that he claimed was exempt requesting the probate court to set aside the exempt property, including the homestead, before the inventory, appraisement, and list of claims was approved or before the filing of the affidavit in lieu of the inventory, appraisement, and list of claims pursuant to section 271(b) of the Probate Code. Dougl as submits that he

13demanded a jury trial and paid a jury fee, but he has not yet had a trial on the

merits of his probate homestead claim. Therefore, Douglas s ubmits that the trial court granted summary judgment in error because there are ge nuine issues of material fact as to his probate homestead claim. Douglas further submits that the summary judgment, dated No vember 5, 2014, [CR 269-270], was an appealable order from which he cou ld appeal. This Court has stated: “Generally, appeals may be taken only from final judgments. De Ayala v. Mackie , 193 S.W.3d 575, 578 (Tex 2006). “Probate proceedings are an exception to the 'one final judgment' rule; in such cases ' multiple judgments final for purposes of appeal can be rendered on certain discr ete issues.” Id

. (quoting Lehmann v. Har-Con Corp ., 39 S.W.3d 191, 192 (Tex. 2001)). “The need to review controlling, intermediate decisions before an error can harm later phases of the proceeding has been held to justify this rule.” Id . (quotations omitted). “Not every interlocutory order in a probate case i s appealable, however, and determining whether an otherwise interlocutory probat e order is final enough to qualify for appeal, has proved difficult.” Id . “In the past, courts relied on a 'substantive right' test to determine whether an ostensibl y interlocutory probate order had sufficient attributes of finality to confer appel late jurisdiction.” Id

.

14Under that test, “once the probate court adjudicated a 'subs tantial right,' the order

was appealable.” Id . In 1995, the supreme court attempted to clarify this test, noting “while adjudication of a 'substantial right' was one factor to be considered, equally important” was “earlier precedent requiring that the order dispose of all issues in the phase of the proceeding for which it was brought .” Id . Therefore, “[t]o sidestep 'potential confusion' about the appropriat e test for jurisdiction,” the court adopted the following test: If there is an express statute, such as the one for complete he irship judgment, declaring the phase of the probate proceeding to b e final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings are also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Id.” In the Estate of Consuella Perkins Ulbrich, decease d , supra, at 13.

“ In De Ayala v. Mackie, 193 S.W.3d at 578, the supreme court held that the trial court's order denying a plea to the jurisdiction and re fusal to removae an executor was not appealable. The court explained that “an or der denying a motion to dismiss an entire proceeding for want of subject-matter j urisdiction is more like a prelude than a finale.” Id . “It certainly does not dispose of a claim that, if asserted independently, would be the proper subject of a law suit.” Id . Moreover,

15the supreme court explained that “the trial court's order wa s interlocutory because

it did not dispose of all parties or issues in a particular pha se of the proceedings.” Id . At 579. “Because an order denying a plea to the jurisdiction and refusing to remove an executor does not end a phase of the proceedings, bu t sets the stage for the resolution of all proceedings, the order is interlocuto ry.” Id .” In the Estate of Consuella Perkins Ulbrich, deceased , supra, at 13-14. In support of his arguments, Douglas cites Majeski v. Estate of Majeski , 163 S.W.3d 102 (Tex. App. - Austin 2005, no pet.). In Majeski , the adult daughter and surviving spouse had a dispute over a tract of land owned by th e decedent before her marriage and on which she and her spouse lived and worked. Id . At 104. The decedent's surviving spouse claimed a homestead right, whi le her adult daughter argued that the rental of portions of the property defeated the spouse's homestead rights, Id. After an inventory of the estate was filed, the surviving spo use, claiming a life estate in the property as the decedent's surv iving spouse, sought a judgment declaring the tract of land, including any improve ments, rental properties and business on the tract of land, to be his homest ead. Id. at 105. The decedent's adult daughter countered, asking the court to de termine what portion of the property was the surviving spouse's homestead, and also asking the court to

16declare “the value and character of all items of personal pro perty” and what assets

should be given to the spouse as the decedent's surviving spo use. Id . She also asked the court to deduct from the spouse's share of the estat e “the value of all assets not accounted for which were in his possession.” Id . Both sides then moved for summary judgment on the issue of the homestead status of the property. Id. The trial court granted summary judgment on the issue of the h omestead status of the property. Id . The trial court granted summary judgment in the adult daughter's favor, finding that the surviving spouse's home stead did not consist of the entire tract of land, but only a portion of the land. Id. The surviving spouse appealed, and the adult daughter argued that the trial court 's order was interlocutory and not an appealable order. Id . The adult daughter emphasized that the trial court's order was not appealable because it did not address the requests in her counter-petition relating to the other assets held by th e surviving spouse. Id

. The court of appeals disagreed, explaining that the “only di spute at issue at this stage of the probate proceeding was the homestead status of the property.” Id . At 106. According to the court, although the adult daughter “as serted claims related to other assets, those questions were separate from the home stead issue.” Id. Because the “trial court's order made a final resolution of the homestead issue as to

17the entire tract of land,” the trial court held that the order “concluded a discrete

phase” of the proceedings, and was final and appealable. Id .; In the Estate of Consuella Perkins Ulbrich, deceased , supra, at 14-15. Douglas submits that Majeski is on point with this case because the adult children in this case filed a motion for summary judgment see king an order that 3939 Starhill, San Antonio had been awarded as Douglas' Texa s Constitution's Survivor Homestead and that he had abandoned it, when he agre ed to let it be sold as non-exempt property. Thus, as in Majeski , the only dispute at issue in the motion for summary judgment regarding the surviving spouse 's section 271 application was the homestead status of the property. Compare id . at 106 with In the Estate of Consuella Perkins Ulbrich, deceased , supra, at 15-16. On November 5, 2014, the trial court entered an Order resolving Douglas' claim to set aside exempt personal property pending a trial on the merits pursu ant to a Rule 11 agreement among the parties. Then, the trial court granted s ummary judgment on the sole remaining exempt property issue related to the probate homestead. This appeal is distinguished from the prior appeal in this ca se because Douglas' section 271 application to set aside the probate ho mestead was the only matter that was considered in the summary judgment. In the Estate of Consuella

18Perkins Ulbrich, deceased , supra, at 15-16. For that reason, the probate court

called its November 5, 2014 order a “summary judgment”, as di stinguished from the prior February 13, 2012 order, which was called a “partia l order”. The entire motion for summary judgment was granted, thereby denying Do uglas' probate homestead claim. The next step would be to appoint special co mmissioners to recommend partition and to appoint a receiver to sell the est ate's 25% undivided interest in the 160 acre ranch. Therefore, Douglas submits that the November 5, 2014 summary judgment was an appealable order because it con cluded his section 271 probate homestead claim, which was a discrete phase of th e proceedings. Distinguish In the Estate of Consuella Perkins Ulbrich, decease d , supra, at 15-16. 2 The trial court erred in finding as matters of law that the ho mestead of the Decedent was 3939 Starhill, San Antonio, Texas because ther e were genuine issues of material fact that the Decedent's homeste ad was the family ranch in Medina County. The summary judgment evidence shows that homestead has been located at the Ulbrich Ranch, 5740 FM 462, Medina County, Texas since 19 78, when Douglas and three of his siblings each inherited a 25% undivi ded interest in 320 acres of his parents’ ranch in Medina County, Texas. In Febru ary 1979, Douglas bought his sister Laverne’s 25% undivided interest in the ra nch. The affidavits and exhibits attached to Douglas' response to the motion for summary judgment
19contain direct and circumstantial evidence that his 160 acr e Medina County ranch

was his rural homestead during his marriage to Consuella and continued to be his rural homestead after her death to the present. (Affidavit o f Douglas Ulbrich, dated January 10, 2012 [CR 124-127] at page 125 ¶¶ 8-10, page 2 26 ¶¶ 11-13) (Affidavit of Karon Robertson, dated 10-1-10 [CR 128-130] at page 128 ¶ 2) (Affidavit of Gary Neubauer, dated 9-27-10 [CR 131-133] at p age 131 ¶ 2) (Affidavit of Al Cargen, dated December 17, 2012 [CR 134-139 ] at page 134 ¶ ¶ 4-5, page 135 ¶¶ 6-16, page 136 ¶¶ 17-25) (Affidavit of Caroly n Watson, dated December 17, 2012 [CR 140-145] at page 140 ¶ ¶ 4-5, page 141 ¶¶ 6 -16, page 142 ¶¶ 17-25) (Affidavit of Mary Dahlman, dated December 17, 2012 [CR 146- 151] at page 147 ¶ ¶ 5-16) (Affidavit of Douglas Ulbrich, date d September 24, 2012 [CR 173-182] at page 173 ¶ ¶ 2-4, page 174-179 ). 3 The trial court erred in finding as a matter of law that the Te xas Constitution's Survivor Homestead granted to Douglas Ulbrich was 3939 Starhill, San Antonio, Texas because there were genuine iss ues of material fact that the Decedent's homestead was the family r anch in Medina County. There is no evidence that the residence at 3939 Starhill, San Antonio, Texas was granted to Douglas as his Texas Constitution's Survivor Homestead. On August 10, 2012, the trial court Ordered that the homestead l ocated at 3939

20Starhill, San Antonio, Texas shall be set aside for the benef it of Douglas J. Ulbrich as the surviving spouse homestead, but this Order w as reversed on appeal. 4 The trial court erred in finding as a matter of law that Dougl as Ulbrich voluntarily abandoned and discontinued use of the Texas Con stitution's Survivor Homestead located at 3939 Starhill, San Antonio, T exas because there were genuine issues of material fact that the Decedent 's homestead was the family ranch in Medina County. Douglas submits that the affidavits attached to his respons e to the motion for summary judgment, referenced above, show direct and cir cumstantial evidence that Consuella and his homestead was the family ranch, which he timely designated as his probate homestead pursuant to the Texas Pr obate Code, § 271 prior to approval of an inventory. Conversely, Douglas submits that the affidavits attached to his response to the motion for summary judgment, referenced above, show direct and circumstantial evidence that Consuella's and his homestead was not 3939 Starhill, San Antonio, Texas. Therefore, Douglas submits that the summary judgment evide nce shows that his homestead was his 160 acre ranch in Medina County, Texas, not 3939 Starhill, San Antonio, Texas, and he did not abandon his probate homest ead. Alternatively, the summary judgment evidence establishes a genuine issue o f material fact whether Douglas' homestead was his 160 acre ranch in Medina C ounty, Texas, not

213939 Starhill, San Antonio, Texas, and that he did not abando n his probate

homestead. At the time of his wife's death, Mr. Ulbrich owned four residences, of which two were located at the Ulbrich Ranch, one was in Hondo, and the other was in San Antonio. Mr. and Mrs. Ulbrich always considered th e Ulbrich Ranch to be their homestead, notwithstanding their application f or a property tax exemption for their house in San Antonio, Bexar Cou nty, Texas. The Texas Property Code, § 271. EXEMPT PROPERTY TO BE SET APART provides as follows: (a) Unless an affidavit is filed u nder Subsection (b) of this section, immediately after the inventory, appraise ment, and list of claims have been approved, the court shall, by order, set apart: (1) the homestead for the use and benefit of the surviving spouse and minor children; a nd (2) all other property of the estate that is exempt from execution or force d sale by the constitution and laws of this state for the use and benefit of the surviving spouse and minor children and unmarried children remaining with th e family of the deceased. (b) Before the approval of the inventory, apprais ement, and list of claims: (1) a surviving spouse or any person who is authorize d to act on behalf of minor children of the deceased may apply to the court to have e xempt property, including the homestead, set aside by filing an application and a verified affidavit

22listing all of the property that the applicant claims is exem pt; and (2) any unmarried children remaining with the family of the decease d may apply to the court to have all exempt property other than the homestead se t aside by filing an application and a verified affidavit listing all of the othe r property that the applicant claims is exempt. (c) An applicant under Subsecti on (b) of this section bears the burden of proof by a preponderance of the evidence at any hearing on the application. The court shall set aside property of the deced ent's estate that the court finds is exempt. Douglas submits that he complied with the requirements of Te xas Probate Code § 271(b) by timely filing his application on January 17, 2012 t o set aside exempt property including his rural homestead supported by his verified affidavit listing all the property that he claims is exempt prior to the Court’s approval of an inventory, appraisement and list of claims. Id. [CR2 30 – Dkt. 00055] Upon remand from the first appeal, Douglas filed a motion to set as ide exempt personal property on May 27, 2014. [CR2 9-13] On August 26, 2014, the parties signed a Rule 11 agreement to set aside exempt personal property pend ing contest. [CR2 25-26] On November 5, 2014, the trial court entered an Order c oncerning truck and automobiles pursuant to the parties' Rule 11 agreement. [CR2 47 – Dkt. Entry

2300042] Then, the trial court granted summary judgment on the sole remaining

issue concerning Douglas' probate homestead claim. [CR2 47 – Dkt. Entry 00044] Douglas also submits that his voluntary designation of his rural homestead after the death of his wife is authorized by controlling case law. Hunter v. Clark , 687 S.W.2d 811, 814-815 (Tex.App. —San Antonio 1985) summarizes the rights of the surviving spouse as follows: The language of the Constitution is plain. The surv iving spouse has the same homestead rights as both spouses had prior to the death of one; and this is true whether the survivor be the husban d or the wife. Brown v. Reed, 48 S.W. 537, 538 (Tex.Civ.App.1898, writ ref'd). The homestead provision is intended to relate to the right s of heirs and the surviving husband or wife, as between themselves, to the homestead property. Spencer v. Schell, 107 Tex. 44, 173 S.W. 867 (1915). TEX. CONST. art. XVI, § 52 gives to the surviving spouse the right to use and occupy the homestead, even though it was the separate estate of the deceased. Jenkins v. Hutchens, 287 S.W.2d 295, 298 (Tex.Civ.App.--Eastland 1956, writ ref'd n.r.e.). The deceased may not defeat this right by devising the property before death. Wicker v. Rowntree, 185 S.W.2d 150, 152 (Tex.Civ.App.--Amarillo 1945, writ ref'd w.o.m.). Even if the survivor (Hunter) had a homestea d right of his own when he Page 815 married, and at the death of deceased, he still owned and controlled that property, the survivor has a right to the subject homestead. Clift v.

24Kaufman & Runge, 60 Tex. 64 (1883); Pressley's Heirs v. Robinson, 57

Tex. 453, 460 (1882). This is true even though there is no doub t that Hunter owned a house where he could presently be living. The surviving spouse may use and occupy the homestead so long a s he or she elects to do so. Tiboldi v. Palms, 34 Tex.Civ.App. 318, 78 S.W. 726, aff'd 97 Tex. 414, 79 S.W. 23 (1904). This applies against the creditors or heirs of the deceased. Blum v. Gaines, 57 Tex. 119, 122 (1882). The homestead right is a right which vests immediately upo n the death of the spouse and continues unless abandoned. Good v. Good, 293 S.W. 621, 623 (Tex.1927). The surviving spouse has the right to live on the premises for the remainder of his life without the permis sion of the deceased spouse's heirs. Hill v. Aldrich, 242 S.W.2d 465, 466 (Tex.Civ.App.--San Antonio 1951, writ dism'd). Testament ary disposition by the deceased may not destroy the right of the s urviving constituent family members to use and occupy the homestead

. Lindsley v. Lindsley, 139 Tex. 512, 163 S.W.2d 633, 636 (1942). The homestead right is a personal privilege with the attri butes and incidents of a life estate. Petrus v. Cage Brothers, 128 S.W.2d 537, 538 (Tex.Civ.App.--San Antonio 1939, writ ref'd). It is in the n ature of a life estate analogous to that of a life tenant. Rancho Oil Co. v. Powell, 142 Tex. 63, 175 S.W.2d 960, 963 (1943). The surviving spou se is not liable for rent payable to the heirs. Pressley's Heirs v. Robinson, supra at 458. But the surviving spouse is not entitled to reimburse ment for improvements. During the continuation of his estate he i s chargeable with the expenses of upkeep of the property. Sargeant v. Sargeant, 19 S.W. 382, 385 (Tex.Civ.App.--Fort Worth 1928, no writ). See George v. Taylor, 296 S.W.2d 620, 624 (Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.) as to rights of heirs. Id. The Court further decided as follows: The payment of taxes by the devisee under Katherine's will is not a showing of Hunter's abandonment of the homestead rights. Salmons v. Thomas, 25 Tex.Civ.App. 422, 62 S.W. 102, 104 (1901, no writ). Similarly, this would not constitute waiver by Hunter. More over, the designation by Hunter of his
25Page 816

former homestead property for taxation purposes, while i t may be challenged by the taxing authority, is not such conduct whic h will demonstrate waiver. In 1978, the Texas Supreme Court decided the case o f Williams v. Williams , 569 S.W.2d 867 (Tex. 1978) and ruled as follows: Article XVI, section 52 of the Texas Constitution provides that the homestead shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so lo ng as the survivor may elect to use or occupy the same as a homestead. [ 1 ] This is sometimes referred to as the probate homestead. O. Speer, T exas Family Law § 36:62, at 208 (5th ed. 1977). This homestead right of the survivor has been held to be one in the nature of a legal life estate or li fe estate created by operation of law. See Sparks v. Robertson, 203 S.W.2d 622 (Tex.Civ.App. Austin 1947, writ ref'd); White v. Blackman, 168 S.W.2d 531 (Tex.Civ.App. Texarkana 1942, writ ref'd w. o. m .); Petrus v. Cage Bros., 128 S.W.2d 537 (Tex.Civ.App. San Antonio 1939, writ ref'd); Comment, The Widow's Exemption in Texas, 25 Baylor L .Rev. 346, 347 (1973). The Probate Code requires that the probate homestead and certain exempt personal property [ 2 ] be set aside to the surviving spouse. Tex.Prob.Code Ann. §§ 271, 272, 2 83, 284 (1956). These rights are provided by law for the protection o f the family and to secure a home for the surviving spouse.
Therefore, Douglas submits that he is entitled to claim his 1 60 acre rural homestead, which is less than the maximum 200 acres for a surv ivor’s rural homestead. He also submits that he did not waive his right to c laim survivorship rights in his rural homestead by applying for homestead exem ption benefits for his
26Bexar County residence for taxation purposes. Hunter v. Clark , 687 S.W.2d 811,

814-815 (Tex.App. —San Antonio 1985).
The facts in the instant case are somewhat similar to the fact s in Simank v. Alford, 441 S.W.2d 234 (Tex.Civ.App. —Austin 1969), which involved an urban residence that was claimed as an exempt homestead for property tax purposes and a rural homestead where the family lived only for abrief time.

“When Elmo R. J. Simank died intestate in 1963 he owned 67.9 ac res of farm land in Williamson County which is the subject of this lawsuit... The sole question is whether the undivided one-half interes t in the land awarded to Simank's mother, brother, and sister by the trial court is subject to the homestead interest of Simank's widow

. Id ., at 234. The cause was tried before the court in March, 1968, resultin g in a judgment entered October 31, 1968, awarding an undivided on e-half interest in the land to plaintiffs and an undivided one-half to the widow, with the further provision that the interest of plaintiffs b e '* * * subject to homestead interest of Mildred Simank (the widow) in and to said property * * * and that the said Mildred Simank * * * have and rec over a homestead interest in Page 235 and to the one-half undivided interest of said prop erty owned by * * *' plaintiffs. Elmo Simank bought the 67.9 acres of land in 1954, prior to his marriage in December, 1959, to Mildred Simank, appellee. Af ter their marriage, Simank and his wife lived in a house owned by his wif e in Austin until January, 1961.
27Mildred Simank testified that she and her husband moved to th e

67.9-acre farm where they lived 'for a little while' before moving about 200 yards to the recently remodeled home of Ella Simank, moth er of Elmo Simank, whose farm adjoined the 67.9-acre tract. Ella S imank testified that her son, Elmo, and his wife, Mildred, never di d live in the house on Elmo's farm, but that they started living with her early in 1961 and stayed there until his death June 4, 1963. Mildred Simank testified without contradiction that she an d Elmo Simank moved from her house in Austin in January, 1961, inten ding 'never to live there again' and that their intentions when mo ving were that, 'We were going to live on his land.' The record also show s that Simank and his wife never returned to the Austin house, that M ildred Simank did not return to it after her husband's death, and that in 1966 the place was sold. Id

. After Elmo Simank's death his widow moved back to Austin, whe re she was employed, and rented the farm to Gene Devine and later to Lee Hurst Alford, who raised crops on the land. Mildred Simank te stified that she and her husband 'claimed this 67.9-acre tract as a ho me' and that she believed it was in the years 1961 and 1962 that her husband claimed the tract 'as a homestead.' This testimony was given during i nquiry under cross-examination regarding claim of a 'home for tax p urposes' on the Austin property by Mildred Simank prior to and during occ upancy of the Austin place by her and her husband before moving to the farm. Mildred Simank testified that after her husband's death she left to her attorney matters pertaining to renting the land and all matt ers pertaining to the estate. She stated that she did not know whether the lan d had been claimed as her home 'since Elmo's death.' Mildred Simank testified that she claimed the Austin house a s a homestead prior to her marriage and during the year or more sh e and her husband occupied it prior to moving to his farm in January, 19 61 . She did not change this designation with the tax collector until a year before she sold the place. After she and her husband moved from the Au stin house to the farm, Mildred Simank never lived in the Austin re sidence. After her husband's death, when she returned to Austin, Mrs. Simank

28lived with a friend on Enfield Road before moving to an apartment

house where she resided at the time of trial. There is not sufficient evidence to show abandonment of the homestead by Mildred Simank after her husband's death, and this contention is not sustained. Jolesch and Chaska Co. v. Hampton, 297 S.W. 271(Tex.Civ.App., Waco, 1927, writ ref.) and cases the re cited. Id ., at 236 Mildred Simank testified that in 1960, the year following he r marriage to Elmo Simank, they considered plans to build a home on his land. Improvements were made, including a roof, on the old ho use already on the land, apparently in that same year, for in Janu ary, 1961, they left Austin, where they had lived since marrying, and li ved for a while in their house on his land. However brief this occupanc y may have been, there was occupancy, followed by moving across th e property line into his mother's home with her. They continue d to cultivate the 67.9 acres, and Elmo made a claim of homestead, beginning with the year they moved into their house, until th e year he was fatally injured in an accident. The evidence, when given interpretation favorable to appel lees, as required by law, is sufficient to show establishment of a homestead by Simank and his wife on the 67.9 acres in Williamson County. Although the courts of Texas have sought to 'prevent this mos t valuable right from being converted into an instrument of fr aud' with respect to the claims of creditors (see Gardner v. Douglass, supra), the Supreme Court has followed the generally accepted rule that homestead laws are to be liberally construed to effectuate their benef icent purpose. Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35 (1919); Cocke v. Conquest, 120 Tex. 43, 35 S.W.2d 673 (1931); Trawick v. Harris, 8 Tex. 312 (1852); Schneider v. Bray, 59 Tex. 668 (1883). Application of the rule in this case does no v iolence to the claim of a creditor, since none is involved, but only exte nds to the widow enjoyment of a homestead right in the land until such ti me as that right may expire.

29As was said in Foley v. Holtkamp, 28 Tex.Civ.App. 123, 66 S.W.

891 (Galveston, 1902, writ ref.), 'We do not mean to say the c ase is a strong one, or that, if primarily presented to us, we would ha ve reached the same conclusion,' but under the testimony we are unable t o say that the implied Page 238 findings of the trial court 'are so against the wei ght of the evidence as to require our interference.' The facts supporting Douglas’ homestead claim are stronger than Mrs. Simank’s. Douglas and Consuella lived at the family ranch ho me for more than 30 years, while they also maintained a residence in San Antonio . One year they let one of Consuella’s daughters live at the San Antonio house wi th her family, and Douglas and Consuella stayed at their ranch home. They plann ed to build a new home at the ranch, and Douglas made preparations by clearing a 30 acre homesite. After Consuella’s death, Douglas let his tax exemption laps e in Bexar County and applied for a homestead tax exemption in Medina County. Now h e spends all of his time at the ranch tending his goats, farming an d ranching. Dedication of a rural homestead is accomplished by occup ancy thereof by the head of the family as a place of residence, and the use ther eof for the support of the family. Arts. 3841-3859, Vernon's Ann.Civ.St., gove rn the voluntary designation. Under these articles the head of the family has a right to designate
30any particular two hundred acres as a homestead, out of a larg er tract or tracts of

land; and, where the homestead has been designated, the exce ss of such tract or tracts over and above the homestead exemption, is subject to partition from such homestead, and sale under proper orders of a court having jurisdiction. If the owner of a homestead has failed to designate and set same asid e, he, nevertheless may still have the right of homestead exemption. Blake v. Fuller , 184 S.W.2d 148, 151 (Tex.Civ.App. 1944).

The Court in Blake went on to state as follows: “ It is elementary, we think, that where a rural homesteadis established on a tract of land in excess of 200 acres, that the sale of the excess does not affect the homestead rights in the retained l and; and, where the head of a family is residing on a tract of more than 20 0 acres, subjecting the whole of such tract to uses which impress it wi th the homestead character, he has the right to determine and desig nate the particular 200 acres as his homestead, provided that in so do ing, the 200 acres so designated shall include his mansion house and the appurtenant lands and improvements actually and directly used in connec tion therewith by himself and family for the purpose of making same their home; and that, in exercising his right of designation, he ac ts in good faith so as to substantially secure to himself and family the benefits which the Constitution intended to give them. McGaughey et al. v. American Nat. Bank, 41 Tex.Civ.App. 191, 92 S.W. 1003, writ denied.” Id

. Douglas submits that, like the surviving spouse in Blake , who had more then 200 acres , he had more real property than his maximum probate homestead

31because he had a house in San Antonio, Bexar County; a house in Hondo, Medina

County; and home and rent house at his ranch in Medina County. Therefore, upon the death of his wife, Douglas had a right to voluntarily desi gnate his rural homestead, which he did by filing an affidavit in the deed rec ords in Medina County. Blake v. Fuller , 184 S.W.2d 148, 151 (Tex.Civ.App. 1944). 5 The trial court erred in finding as a matter of law that Dougl as Ulbrich cannot transfer the Texas Constitution's Survivor Homeste ad to any other property. Where the husband and wife have so designated and occupied the rural homestead, and the wife, after the husband's death, continuously used and asserted homestead rights therein, on sale of the excess, th e wife would have a right to again set aside the homestead as designated by them, or change, alter and substitute the designation for another. Blake v. Fuller , 184 S.W.2d 148, 151 (Tex.Civ.App. 1944). The law does not require the homestead designation to be in any particular form, or that the owners may not change the des ignation when once made. Id. The right of selection necessarily means the right to take su ch, and describe such as the owner may desire. Id., citing, Shippey et al. v. Hough, 47 S.W. 672 (Civ. App. Texas 1898), writ refused.

32In Shippey , it was contended by counsel for the appellants that the wido w's

homestead right, as against the claim of appellants, was limited to the 30 or 40 acres of land in actual use by Mrs. Hough and her husband at the time of the latter's death. The Court ruled against this contention on a former appeal in this case, and it saw no reason to change the ruling then made. Hough v. Shippey (Tex. Civ. App.) 40 S.W. 332. The Court went on to state that it could not be den ied that if the husband were still alive, and asserting a homestead right, he could hold 200 acres of the land as a homestead, although he actually used le ss than that quantity; and the Court held on the former appeal, and still held, that the right of the surviving spouse in the homestead was as great as that of husb and and wife, if both were asserting the homestead exemption. Shippey et al. v. Hough, 47 S.W. 672, at 674 writ refused. The further proposition was submitted that, if th e widow had the right to select 200 acres as her homestead, she had not the right to run zigzag lines, leaving the remainder of the survey irregular in form, and secure the reby the most valuable part of the survey as a homestead. The Court also ruled agains t this contention. The right to select the homestead is not affected by the fact that the better land has been selected, and that of less value left subject to the clai ms of others. The law

33does not require the homestead to be in any particular form, and the right of

selection necessarily means the right to take such as may be d esired; and, as persons having the right to select usually take that believe d to be the best, it is a reasonable supposition that, in allowing the right to selec t the homestead, it was in contemplation of the legislature that the best land would be selected for homestead
purposes. Shippey et al. v. Hough, 47 S.W. 672, at 674. Therefore, Douglas Ulbrich submits that he has a right to sel ect as his homestead the most valuable real estate that he and his wife o wned during their marriage. The family ranch is more valuable to Douglas as a ho mestead than the house in San Antonio because he can continue to live and work at the ranch and make a living in his retirement. He could not do the same at his house in town. He applied to the Court to set aside his exempt ranch homestead, since he could no longer keep all the property he and his wife owned during thei r marriage, and the house in San Antonio has been sold as non-exempt re al estate. While the instrument designating the homestead is required by the statute to contain a description of the property, specifying metes and bounds and other facts, it seems that a failure to conform to the statutory requireme nt in this respect does not render ineffectual a mortgage or deed of trust on the part of the land in excess

34of two hundred acres.' 22 T.J. 211, Sec. 148. Blake v. Fuller , 184 S.W.2d 148, 151

(Tex.Civ.App. 1944). The designation is intended to exclud e 200 acres from forced sale, and to allocate the excess unencumbered with ho mestead claim. Id. The designation instrument here in evidence, definitely se ts out the 131 acres by metes and bounds, and the complement remainder 'enough land out of the 160 acres * * * to make 200 acres in all reserved as a homestead.' Li ke Lincoln Kennedy and wife, Douglas sufficiently described the land r eserved for his homestead, leaving his San Antonio house free of such claim, and subject to forced sale. Id. So, on the death of Consuella, all rights in the rural homeste ad continued in Mr. Ulbrich by virtue of Sec. 52, Art. 16, Texas Constitution. The Texas Supreme Court stated in Andrews v. Security Nat. Bank of Wichita Falls , 121 Tex. 409, 50 S.W.2d 253, 256 (Tex. 1932): Homestead laws are not only based upon a tender regard for the welfare of the citizen, but have for their object the stabili ty and welfare of the state. 29 Corpus Juris, pp. 782, 783; Armitage v. Toll, 64 Mich. 412, 415, 31 N.W. 408; Dalton v. Simpson, 270 Mo. 287, 298, 193 S.W. 546; Franklin v. Coffee, 18 Tex. 413, 70 Am. Dec. 292; Black v. Rockmore, 50 Tex. 88, 96. The universal rule of construction is that homestead provis ions of the organic law and statutes are to be liberally construed, f or the purpose of effectuating the wise and salutary provisions th ereof. 13 Ruling Case Law, p. 547, s 8; 29 Corpus Juris, p. 787, s 15; Woods v. Alvarado State Bank, 118 Tex. 586, 19 S.W.2d 35; Schneider v.
35Bray, 59 Tex. 668; Pocoke v. Peterson, 256 Mo. 501, 165 S.W.

1017; Riggs v. Sterling, 60 Mich. 643, 27 N.W. 705, 1 Am. St. Rep. 554. The Texas Supreme Court provided a thorough history of homes tead rights in Woods v. Alvarado State Bank , 118 Tex. 586, 19 S.W.2d 35, 38 (Tex. 1929). “We think the homestead provisions of our Constitution and s tatutes beyond any question show a purpose not only to protect the family as a whole, but the constitutent units of that whole. In plain terms, the Constitution and laws protect first the husband, wife, and c hildren, jointly or as a family; second, they protect the surviving hu sband; third, they protect the surviving wife; fourth, they protect the su rviving children, although some of them may be adults when the family unit is dissolved by death. Our Constitution and statutes show defi nitely that in the development of our homestead laws, we have long since pas sed beyond the initial stage shown in the Exemption Act of 1839, and that stage of the law when it may be held that the head of the family i s protected in homestead rights for the benefit of the family a lone. Since it is plain that the general purpose of our homestead laws is to p rotect the individuals who compose the family, as well as the family, we think it would be a very illiberal construction to say that when once there is a family composed of father and minor children, the homestead , when the latter become of age and cease to be members of the household, the remaining constituent, shall not be protected. Applying th e liberal rule, we think that when once the homestead comes into existence by reason of the family composed of the father and minor children (not f inding in the Constitution and laws any designated termination of that type of homestead estate), we are left free to say when it terminates , or rather we are left free to say that, since the estate is created by the Constitution without limit as to its duration, we are not authorized to say when the estate shall determine, except it may of course cease by alie nation, abandonment, or by laws such as apply to the divestiture of other estates. This construction is in accord with the humance pri nciples and wise governmental policy upon which all homestead laws rest . Any
36other construction would cast homeless upon the world the ag ed father

or mother, who, though separated from his or her spouse (exce pt by death during marriage), had reared a family of children, who becoming of age, had departed from the home. We know there is a great con flict of authority on the question, and that some reason and logic may be applied in support of the rule that would take the homestead f rom the aged and destitute, who have reared a family without death bringing into application the provisions of section 52 of the Constitutio n; but neither reason nor logic can say that a homestead law, which turns the aged and weary out of home because the constituent, or constituents, of his or her home have left its [118 Tex. 596] shelter, fulfills the gen eral and underlying purposes of our homestead laws. A rule that fathe r or mother surviving the death of his or her spouse, raising children wh o became of age and who left the parental home, can still hold the homeste ad against all creditors and heirs, but that an old grandmother owning a homestead, with a family composed of orphan grandchildren, who finally became of age and left, could no longer be protected, cannot be explain ed upon any principle which has been invoked as the basis of our homes tead laws; and, if we were to say in this case that Woods is not prote cted here, we would be compelled to say the same thing regarding th e case used for illustration above. The hardships entailed by the b reaking up of such a home as plaintiff in error's here may be just as desolat ing and burdensome as if the home had been broken by death and the home stead preserved by survivorship of the husband; and there exists the same personal reason and the same public policy for preserving on e as for the other. In view of the fact that our homestead laws are for the protect ion of each member of the homestead household, as well as the home it self, those authorities which hold that homestead rights are not d estroyed by the dispersal of the members of the family are applicable. In fact, the opinions of this court support the rule we have here announce d. In the case of Bahn v. Starcke, 89 Tex. 203, 208, 34 S.W. 103, 106 (59 Am. St. Rep. 40), this court said with reference to the cases of Kessler v. Draub, 52 Tex. 579, 36 Am. Rep. 727, and Blum v. Gaines, 57 Tex. 119: 'In those cases it was held that, where the head of a famil y, either

37by the death or dispersion of its members, ceases to have a family, the

homestead will remain exempt.' In the case of Blum v. Gaines, 57 Tex. 119, this court said: 'We are asked in this appeal (and this is the sole question pre sented for our consideration) to reconsider and overrule the case o f Kessler v. Draub, 52 Tex. 575 (36 Am. Rep. 727), in which it was held that, when a homestead has been once acquired, the subsequent death, marriage or removal of all the individuals who composed the family, exce pt the surviving husband, does not subject the homestead to forced sale, under a judgment against him, he still occupying it as a home. * * * 'There is a market distinction between the right of a widower who is not the head of a family to acquire a new homestead in the first place, and the right to retain the already Page 39 existing homestead, after the dissolution of the family by d eath or otherwise. As to the [118 Tex. 597] acquisition of a new homestead, he would stand on the same ground as a bachelor or spinster, but i n the retention of the old homestead he occupies, both in the polic y and language of the law, a much more favorable standpoint. There is something repugnant in the proposition, that, to the sorrow of losing his family, should be added the misfortune that his home should b e taken from him by forced sale; and that, too, for a debt for the payme nt of which it was not believed, either by himself or the creditor, at the time of its creation, that the homestead would be liable, and for the security of which it did not enter as an element of credit. 'We think, both on reason and authority, that the rule announ ced in Kessler v. Draub, 52 Tex. (575) (36 Am. Rep. 727), is sound, and the doctrine of that case is reaffirmed.' The case of Bahn v. Starcke , supra, makes no holding contrary to the above. What it did decide was an entirely differentquestion.

38In the case of First National Bank v. Sokolski, 62 Tex.Civ.App.

324, 131 S.W. 818, the question now before us was presented t o the Court of Civil Appeals and decided contrary to our holding. W e have examined the application for writ of error, however (which w as refused), and the question was not presented to the Supreme Court. The elementary authorities support our conclusion. 29 Corp us Juris, p. 932; 13 Ruling Case Law, p. 666, s 123; Thompson on Real Prop erty, vol. 1, ss 937, 938. The first authority cited states: 'On the other hand, in many jurisdictions it is held that after a homestead has once been acquired, it is not dependent on the continued existence of a family, and that it is not lost by the death, permanent removal, or majori ty of all the members of the family other than the head thereof, but contin ues to be exempt so long as the premises are occupied as a home.' 29 Corp us Juris, p. 932. The second declares: 'While there is a conflict in the authorities on the point, the general rule is that one who has acquired a home stead does not lose his right to the exemption, so long as he continu es to use the property as his home, although, because of death or remov al, the family is completely broken up. This rule applies whether th e family is broken up by separation or by the death of some of the members thereof, or by the coming of age of the children, and it is based on the hypothesis that the intention of the legislature in enacting the variou s homestead statutes was to protect the home and all its inmates, includi ng the head of the family as well as the [118 Tex. 598] dependent member s, from any business misfortune and financial adversity that might befall them. Some courts, however, looking on statutes providing for a ho mestead exemption as statutes of nurture, intended solely for the pr otection of the dependent members of the family from the improvidence of the head thereof, hold that on the dissolution of the family by the death or removal of its members, the reason for the protection ceasin g, the head of the family loses his right to a homestead exemption previo usly acquired. So it has been held that where children have arrive d at their majority, and have permanently severed their status as memb ers of the immediate family and taken up their abode elsewhere, the father, on the death of the mother, ceases to be the head of a family so as to be entitled
39to a homestead exemption. In general, however, while it is ne cessary

that a homesteader should have persons dependent on him for s upport, and residing with him, in order to constitute a family, it is n ot necessary that this should be true in order to retain an existing right t o a homestead.' 13 Ruling Case Law, pp. 666, 667, s 123

. In Thompson on Real Property, cited above, the author says: 'Some cases hold that while it is essential to the creation of a homestead that the debtor have a family, such requirement is not essent ial to the continuance of the right. If the family consists of the husba nd and wife only, their death simultaneously will of necessity destroy the homestead right, as there is no one to claim it. 'Although a homestead es tate cannot be acquired except by a householder having a family, yet, whe n once acquired and still occupied by him, it is not defeated or lost by the death or absence of his wife and children. Any other construction w ould render a husband who has been deprived of his family by accide nt or disease, or by their desertion without any fault of his, liab le to be turned out of his homestead by his creditors.'"' 'As a general rule the complete breaking up of the family for any cause, does not operate to forfeit the homestead right of one who has acquired it and continues to use the property as a home.' Th ompson on Real Property, pp. 1033, 1934, ss 937, 938. Douglas submits that the homestead protections of the Texas Constitution and the past 150 years of jurisprudence have served Texans we ll and they are just as important today as they were in 1929. The law makes provision for the probate court to set aside exe mpt property for the use and benefit of the widow and children remaining wi th the family (Art. 3485, R.S.); but where the exempt property-homestead-has b een set aside and designated by the head of the family, such homestead is not su bject to 40administration; and where the probate court expressly rese rves the homestead to

the heirs of the deceased, no further designation is require d by the probate court. The right to select and designate the rural homestead, means the right to take such as may be desired, only limited to 200 acres, and to include th e living quarters and contiguous lands used in connection therewith. The probate court could do no more, or order any less. Blake v. Fuller , 184 S.W.2d 148, 152 (Tex.Civ.App. 1944). Ratliff v. Smith , 178 S.W.2d 138, 141 (Tex.Civ.App. 1943) ruled as follows: “It is elementary, we think, where a rural homestead is es tablished on a tract in excess of two hundred acres that sales of portions thereof do not affect the homestead right in the retained land. A surviving husband or wife may exchange the homestead for another,--may sell the homestead and inve st the proceeds to acquire a new homestead. This, even though at the time of such exchange or reinvestment the surviving husband or wife be not the head of a family. Watkins v. Davis, 61 Tex. 414; Schneider & Bro. v. Bray, 59 Tex. 668.” Therefore, Douglas submits that his right as a surviving spo use to designate his homestead prior to Court approval of an inventory, appraisement and list of claims is limited to whichever residence that he and his wife owned and could

41have designated at the time of death. The right of the survivi ng spouse to

designate the probate homestead comes into existence at the time of death of a spouse, and the surviving spouse may voluntarily designate his homestead at that time. Williams v. Estate of Williams , 548 S.W.2d 492, 493 (Tex.Civ.App. — Austin 1977). The homestead right in a survivor does not exist until the death of one of the spouses. Vernon's Ann.Tex.Const. art. 16 , § 52 (1955). Id

. Douglas submits that the summary judgment evidence clearly shows that there are genuine issues of material fact as to his claim that the Ulbrich Ranch is his probate homestead. Douglas was raised in Medina County, Texas, and belonged to a ranching family. When he married, he and Consue lla continued the Ulbrich family ranching tradition. At one time, they were managing three ranches in Bexar, Kendall and Medina counties. Although they mainta ined a residence in San Antonio and Hondo, they always considered the Ulbrich Ranch to be their homestead, notwithstanding their application for a homest ead property tax exemption in Bexar County. Douglas' affidavits establish facts relating to his rural M edina County homestead claim. The Affidavits of people, who have known Do uglas and his wife including Al and Katie Cargen, Carolyn Watson, Karon Ro bertson, Gary

42Neubauer, and Mary Dahlman provide corroborating evidence to support Douglas'

designation of the Ulbrich Ranch as his probate homestead. In support of his claim of right to designate the Ulbrich Ranc h as his probate homestead, Douglas filed a Formal Bill of Exception s with attached exhibits including family photos at the ranch and his sworn a ffidavit, dated 9-24- 12, as well as a Verified Supplemental Formal Bill of Excepti ons w/exhibits dated 10-3-12. Douglas also alleges and would prove that banking records fr om his bank accounts in Hondo, Medina County, Texas, provide evidence that his homestead is his ranch in Medina County, where he lives and banks. Douglas also alleges and would prove that records of his property tax accounts Medina County, Texas, provide evidence that his homestead is his ranch in Medina Co unty, where he lives and does business. Additionally, Douglas alleges and would prove that he and Co nsuella purchased 80 acres of land that had been part of the historic U lbrich Ranch from his sister, showing that both Mr. and Mrs. Ulbrich committed a substantial investment and a firm commitment early in their marriage to be a ranching family. Therefore, considering all of the summary judgment evidenc e in the record

43of this case, Douglas submits that the summary judgment evid ence clearly shows

that there are genuine issues of material fact as to his claim that the Ulbrich Ranch is his probate homestead. The existence of genuine issues of material fact are for a jury to decide, not for the Court to determine as a matter of la w, which precludes summary judgment. Douglas respectfully submits that the Order Granting Motio n for Summary Judgment [CR 269-270] was signed in error on November 5, 2014 because there were genuine issues of material fact as to each of the finding s as matters of law that the homestead of the Decedent was 3939 Starhill, San Ant onio, Texas; that the Texas Constitution's Survivor Homestead granted to Dou glas Ulbrich was 3939 Starhill, San Antonio, Texas; that Douglas Ulbrich has voluntarily abandoned and discontinued use of the Texas Constitution's Survivor Homestead located at 3939 Starhill, San Antonio, Texas; and that Dougl as Ulbrich cannot transfer the Texas Constitution's Survivor Homestea d to any other property.
CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, the Douglas J. Ulbrich, Decedent’s surviving spouse, respectfully requests this C ourt reverse the summary judgment in its entirety and remand this case to the trial cou rt for further

44proceedings. Mr. Ulbrich requests such further relief at la w or in equity to which

he may be justly entitled. Respectfully submitted, Philip M. Ross SBN 17304200 1006 Holbrook Road San Antonio, Texas 78218 Phone: 210/326-2100 Email: ross_law@hotmail.com By: /s/ Philip M. Ross Philip M. Ross Attorney for Douglas J. Ulbrich
CERTIFICATION I hereby certify that every factual statement in th e brief is supported by competent evidence included in the appendix or reco rd. /s/ Philip M. Ross Philip M. Ross CERTIFICATE OF COMPLIANCE I hereby certify that this brief is in compliance w ith Texas Rule of Appellate Procedure Rule 9. It contains 11,482 words, 45 page s, 14 point typeface. /s/ Philip M. Ross Philip M. Ross

45CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of th e foregoing document has been e-filed and sent on February 10, 2015 in compl iance with the Texas Rules of Appellate Procedure and/or by email pursuant to agr eement to the following attorneys: Kristine Arlitt William Bailey 206 E. Locust St. 1100 N. W. Loop 410, Suite 700 San Antonio, Texas 78209 San Antonio, Texas 78213 /s/ Philip M. Ross Philip M. Ross

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