NUMBER 13-22-00522-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

SAMUEL A. NEWTON A/K/A 

SAMUEL E. ASHLEY 

AND KAI LYNN O’NEAL, Appellants,

v.

JOE D. NEWTON, II 2003 TRUST, Appellee.

 

On appeal from the County Court at Law No. 3

of McLennan County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Longoria

Memorandum Opinion by Chief Justice Contreras

Appellants Samuel A. Newton a/k/a Samuel E. Ashley (Ashley) and Kai Lynn 
2

O’Neal1 appeal the county court’s summary judgment for appellee Joe D. Newton, II 2003 

Trust (JDN II Trust) in this forcible detainer action. Appellants contend that genuine issues

of material fact existed which precluded summary judgment. We affirm.

2

I. BACKGROUND

On October 6, 2003, Joe D. Newton (Newton Sr.) executed the Joe D. Newton 

2003 Trust (JDN Trust), the JDN II Trust, and his last will and testament. Newton Sr. died 

in December 2003, and his will was probated in January 2004, with Community Bank & 

Trust, Waco, Texas (CB&T) being appointed independent executor of his estate. Newton 

Sr. was survived by his wife, Elen Jones Newton, who died in June 2005, and his son

from a former marriage, Joe D. Newton II (Newton Jr.).

Newton Sr.’s will provided for different dispositions of his personal effects and the 

“rest and residue of [his] estate.” The provision addressing the latter category provides as 

follows:

If my wife survives me, then all the rest and residue of my estate, I give, 

devise and bequeath to the Trustees as Trustee of the [JDN Trust] . . . .If 

my wife does not survive me, then all the rest and residue of my estate, I 

give, devise and bequeath to the Trustees as Trustee of the [JDN II Trust].

On December 1, 2004, CB&T, as independent executor of the estate of Newton 

Sr., executed a distribution deed granting property located at 5205 Lockwood Dr., Waco, 

Texas (the Property) to “[CB&T].” On November 10, 2005, the “Estate of [Newton Sr.], 

deceased, by and through its Independent Executor, [CB&T]” executed a correction 

distribution deed of the Property which listed as the grantee the “[JDN II Trust], [CB&T], 

1 Formerly known as Kai O’Neal Ashley.

2 This case was transferred from the Tenth Court of Appeals in Waco to this Court pursuant to a 

docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
3

Trustee.” The correction distribution deed listed an effective date of December 1, 2004.

The terms of the JDN II Trust specified that Newton Sr. would serve as the trustee

until his death, whereupon CB&T would assume that role, and listed Newton Jr. as the 

primary beneficiary during his life. Upon Newton Jr.’s death, Ann Newton Walker, Newton 

Sr.’s niece, would become the primary beneficiary. The JDN II Trust was to terminate on 

the last of the following three events: (1) one minute after Newton Sr.’s death; (2) the 

death of Newton Jr.; or (3) the death of Walker. Upon termination, the JDN II Trust’s 

assets were to pass per stirpes to the descendants of Walker. By its terms, the JDN II 

Trust granted the trustee the powers to, among other things, “contract to sell, sell and 

convey, or grant an option to sell, real or personal property at public auction or private 

sale for cash or for credit or for part cash and part credit, with or without security,” and 

“[t]o retain, sell or invest (including the reinvestment of any sale proceeds) in a residence 

for the Primary Beneficiary of a trust.” In the latter instance, “[t]he Primary Beneficiary 

shall have no obligation to pay rent for the use of the residence (including any guardian 

or other person living with and taking care of the Primary Beneficiary).”

Newton Jr. married O’Neal in 1997 and adopted Ashley, an adult, in 2013. Newton 

Jr. and O’Neal called the Property their principal place of residence from 2005 through 

Newton Jr.’s death on November 26, 2021. Walker predeceased Newton Jr. so, operating 

under the terms of the JDN II Trust, CB&T advised appellants in writing in December 2021

that they must leave the Property by March 22, 2022, so that it may pass per stirpes to

Walker’s descendants. Appellants continued to occupy the Property.

On April 22, 2022, appellee filed a forcible detainer suit in the justice court against 
4

appellants.3 On May 12, 2022, the justice court determined that appellee was entitled to 

possession of the Property and signed a judgment in eviction. Ten days later, appellants 

appealed the justice court’s summary judgment to the county court in McLennan County.

In a trial de novo in the county court, appellee filed a petition for eviction and 

attached as exhibits its notice to appellants to vacate the Property, the JDN II Trust 

document, Newton Sr.’s will, and appellants’ responses to its requests for admission.

Request for admission number six asked appellants to admit or deny whether the 

“Property is owned by [CB&T] as Trustee of the [JDN II Trust].” Ashley responded, “Deny: 

No, they maintain the [P]roperty as administrators of the trust for the benefit of my father,

[Newton Jr.] and his family.” O’Neal responded, “No[.] The Property is not owned by 

[CB&T]. The [P]roperty is held in trust as a ‘unique asset.’”4 Request for admission 

number seven asked appellants to admit or deny that Newton Jr. “did not own the 

Property.” Ashley responded, “The [P]roperty was held as a unique asset to be 

administered by the [JDN II Trust].” O’Neal replied, “[Newton Jr.] inherited the [P]roperty 

according to his father’s will by the laws of decent [sic] and distribution.” Requests for 

admission numbers ten and eleven asked appellants to admit or deny that they were

advised to vacate the Property. O’Neal replied that it was “suggested” that they vacate 

3 Appellants do not challenge appellee’s standing to file a forcible detainer action. We note that, “[i]f 

an event of [trust] termination occurs, the trustee may continue to exercise the powers of the trustee for the 

reasonable period of time required to wind up the affairs of the trust and to make distribution of its assets 

to the appropriate beneficiaries.” TEX. PROP. CODE ANN. § 112.052.

4 A document entitled “unique asset retention letter” dated April 27, 2021, appears in the record. In 

it, CB&T informs Newton Jr. that the JDN II Trust “holds a non-publicly traded asset.” It relates, “It is our 

understanding that you desire for us to retain this asset in your trust at present, because of the relationship 

and special value that this unique asset holds for you, regardless of the lack of a public market or the ability 

to produce income.” CB&T requested that Newton Jr. sign the letter to confirm such agreement and noted 

that in the absence of a response within thirty days, it would assume Newton Jr.’s agreement. The document 

is unsigned.
5

the property. Ashley responded, “Yes.” Request for admission number sixteen asked 

appellants to admit or deny that they do not own the Property. Both O’Neal and Ashley 

admitted they do not own the Property. Finally, request for admission number eighteen

asked appellants to admit or deny that they “currently occupy the Property.” O’Neal 

responded, “The [P]roperty is my permanent residence.” And Ashley responded, “Yes.”

On August 11, 2022, appellee moved for summary judgment.

5 On September 28, 

2022, appellants responded, arguing that “a genuine issue of material fact regarding the 

element of ownership of the Property” existed, as did an issue of material fact about

whether O’Neal maintained a homestead right in the Property. Appellants incorporated 

the exhibits in appellee’s summary judgment motion into their response, including Newton 

Sr.’s will. As to ownership, appellants asserted that the executor of Newton Sr.’s will was

“authorized to distribute the Property to the [JDN II Trust] only if Elen Jones Newton failed 

to survive [Newton Sr.]” Because Elen Jones Newton survived Newton Sr., appellants 

argued that the executor “should have distributed the Property to the [JDN Trust] 

referenced in the [w]ill, not the [JDN II Trust].” They continued, “[Appellee’s] motion fails 

to explain why it did not follow the terms of the [w]ill as it was required to do as the 

executor and fails to include any summary judgment evidence related to the [JDN Trust].”

Indeed, neither party filed the JDN Trust document.

On October 5, 2022, the county court heard arguments on appellee’s summary 

5 The motion for summary judgment states that it was brought on traditional and no-evidence 

grounds. However, the only affirmative claim brought in this suit is appellee’s forcible detainer claim, for 

which appellee bore the burden of proof. Accordingly, no-evidence summary judgment was not available 

to appellee. See TEX. R. CIV. P. 166a(i). (“After adequate time for discovery, a party without presenting 

summary judgment evidence may move for summary judgment on the ground that there is no evidence of 

one or more essential elements of a claim or defense on which an adverse party would have the burden of 

proof at trial.”).
6

judgment motion. The county court granted the summary judgment motion the next day, 

and this appeal followed.

II. STANDARD OF REVIEW & APPLICABLE LAW

We review summary judgments de novo. Eagle Oil & Gas Co. v. TRO-X, L.P., 619 

S.W.3d 699, 705 (Tex. 2021). We take as true all evidence favorable to the nonmovant 

and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 

Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020). 

To be entitled to traditional summary judgment, a movant must establish there is 

no genuine issue of material fact so that the movant is entitled to judgment as a matter of 

law. TEX. R. CIV. P.166a(c); Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 

(Tex. 2018). If the movant carries this burden, the burden shifts to the nonmovant to raise 

a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 

555 S.W.3d 79, 84 (Tex. 2018). The nonmovant can meet its burden if it presents more 

than a scintilla of evidence, i.e., the evidence “rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.” Ford Motor Co. v. 

Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). “Evidence is less than a scintilla . . . if it is 

‘so weak as to do no more than create a mere surmise or suspicion that the fact exists.’”

Subsea 7 Port Isabel, LLC v. Port Isabel Logistical Offshore Terminal, Inc., 593 S.W.3d 

859, 873 (Tex. App.—Corpus Christi–Edinburg 2019, pet. denied) (quoting Regal Fin. Co. 

v. Tex Star Motors, Inc., 355 S.W.3d 595, 603 (Tex. 2010)). “[W]e must affirm the 

summary judgment if any of the theories presented to the trial court and preserved for 

appellate review are meritorious.” Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 

216 (Tex. 2003); see Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 587 (Tex. 2015).
7

A forcible detainer action is an eviction procedure to determine the right to 

immediate possession of real property where there is no unlawful entry. Alanis v. Wells 

Fargo Bank Nat’l Ass’n, 616 S.W.3d 1, 6 (Tex. App.—San Antonio 2020, pet. denied). Its 

purpose “is to provide a party with an immediate legal remedy to obtain possession.”

Falcon v. Ensignia, 976 S.W.2d 336, 338 (Tex. App.—Corpus Christi–Edinburg 1998, no 

pet.). Indeed, “[t]he sole focus of a forcible-detainer action is the right to immediate 

possession of real property.” Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 478 (Tex. 

2017); see Terra XXI, Ltd. v. AG Acceptance Corp., 280 S.W.3d 414, 417 (Tex. App.—

Amarillo 2008, pet. denied) (“In a forcible detainer proceeding, the merits of the title shall 

not be adjudicated.” (cleaned up)).

“Jurisdiction to hear forcible detainer actions is vested in justice courts, and on 

appeal, to county courts for a trial de novo.” Alanis, 616 S.W.3d at 6 (cleaned up); see

Rice v. Pinney, 51 S.W.3d 705, 713 (Tex. App.—Dallas 2001, no pet.) (“A justice court 

and, on trial de novo, a county court have been given exclusive jurisdiction to decide the 

issue of immediate possession.”). “Justice courts may adjudicate possession even where 

issues related to the title of real property are tangentially or collaterally related to 

possession.” Falcon, 976 S.W.2d at 338. However, “[d]istrict courts have sole jurisdiction 

to adjudicate title to real property”; thus, “[i]f the question of title is so integrally linked to 

the issue of possession that possession may not be determined without first determining 

title, justice and county courts are without jurisdiction to make any determinations 

regarding title.” Id.; see TEX. R. CIV. P. 510.3 (“The [justice] court must adjudicate the right 

to actual possession and not title.”). “Specific evidence of [a] title dispute is required to 

raise an issue of a justice court’s jurisdiction.” Falcon, 976 S.W.2d at 338.
8

“Because a forcible detainer action is not exclusive, but cumulative, of any other 

remedy that a party may have in the courts of this state, the displaced party is entitled to 

bring a separate suit in the district court to determine the question of title.” Rice, 51 S.W.3d 

at 709. “Forcible detainer actions in justice courts may be brought and prosecuted 

concurrently with suits to try title in district court.” Id.

In a forcible detainer suit, the plaintiff must show: (1) it is the owner of the relevant

property; (2) the defendant is a tenant at sufferance, a tenant at will, or a tenant or 

subtenant willfully holding over after the tenant’s right of possession has terminated; (3) it 

made a written demand for possession; (4) it notified the defendant to vacate the 

premises; and (5) the defendant refused to vacate. Alanis, 616 S.W.3d at 6 (first citing 

TEX. PROP. CODE ANN. §§ 24.002(b), 24.005(f); and then citing Bradberry, 526 S.W.3d at

478).

II. THERE IS NO ISSUE OF MATERIAL FACT AS TO THE PROPERTY’S OWNERSHIP

By their first issue, appellants contend that a genuine issue of material fact exists 

as to the Property’s ownership so as to preclude summary judgment. Citing a footnote in 

the Dallas court of appeals’ opinion in Rice v. Pinney, they argue that there was no 

landlord-tenant relationship between the parties here, and thus, an adjudication of title

was required.

6 See 51 S.W.3d at 712 n.4. Appellee asserts that appellants’ citation to 

Rice is misleading, and that the summary judgment evidence “gave rise to a tenant-atsufferance relationship” between the parties and showed its entitlement to immediate 

possession of the Property.

6 While they argue that summary judgment was improper because of an alleged fact issue of 

ownership, appellants do not contend that the justice court lacked jurisdiction to hear the forcible detainer 

suit.
9

In Rice, the issue of whether “the existence of a landlord-tenant relationship is [a] 

jurisdictional” requisite for a forcible detainer action in the justice courts was not germane 

to the Dallas court’s analysis. Id. It noted in a footnote, “however, that one indication that 

a justice court, and on appeal a county court, may be required to adjudicate title to real 

estate in a forcible detainer case—and, thus, exceed its jurisdiction—is when a landlordtenant relationship is lacking.” Id. Citing no other authority but the Rice footnote, 

appellants assert that “if there is no instrument expressly creating a landlord-tenant 

relationship, adjudication of title or ownership is needed.” We agree with appellee that 

Rice does not support appellants’ assertion.

The existence of a security instrument or some other contract is not “required for 

a party to be subject to a forcible-detainer action.” Jimenez v. McGeary, 542 S.W.3d 810, 

814 (Tex. App.—Fort Worth 2018, pet. denied); see Fandey v. Lee, 880 S.W.2d 164, 169 

(Tex. App.—El Paso 1994, writ denied) (op. on reh’g) (“In the absence of a legally 

enforceable agreement, such as a lease or rental agreement or a contract to sell, an 

occupier of premises is at best a tenant at sufferance and at worst a trespasser.”); see 

also Brooks v. Wells Fargo Bank, N.A., No. 05-16-00616-CV, 2017 WL 3887296, at *9 

(Tex. App.—Dallas Sept. 6, 2017, no pet.) (mem. op.) (“A contract is not required for a 

party to be subject to a forcible-detainer action.”). A tenancy at sufferance “is created 

when one wrongfully continues in ‘naked possession of property’ after his right to 

possession has ended and does not assert a claim to superior title.” Jimenez, 542 S.W.3d 

at 814 (quoting Williams v. Deutsche Bank Nat’l Tr. Co., No. 05-11-00434-CV, 2012 WL 

1899156, at *2 (Tex. App.—Dallas Apr. 27, 2012, no pet.) (mem. op)); see ICM Mortg. 

Corp. v. Jacob, 902 S.W.2d 527, 530 (Tex. App.—El Paso 1994, writ denied) (“A tenant 
10

at sufferance is merely an occupant in naked possession of property.”); Goggins v. Leo, 

849 S.W.2d 373, 377 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“A tenant at 

sufferance does not have privity with the landlord but is merely an occupant in naked 

possession after his right to possession has ceased.”).

The record shows that appellants were tenants at sufferance. See Jimenez, 542 

S.W.3d at 814. Under the terms of the JDN II Trust, Newton Jr. was the primary 

beneficiary until his death, at which point the trust terminated, and its assets were to pass 

to Walker’s descendants. Both O’Neal and Ashley admitted that they did not own the 

Property, that the Property was held as a “unique asset” in the JDN II Trust, and that they

maintained possession of the Property after two requests for them to vacate. See TEX. R.

CIV. P. 198.3 (“A matter admitted under this rule is conclusively established as to the party 

making the admission unless the court permits the party to withdraw or amend the 

admission.”). Appellee “would [thus] be entitled to possession [of the Property] . . . by 

merely showing sufficient evidence of ownership to demonstrate a superior right to 

immediate possession.” See Jimenez, 542 S.W.3d at 814 (cleaned up); Goggins, 849 

S.W.2d at 377.

On top of appellants’ admissions that they do not own the Property and that the 

Property was held as a “unique asset” by the JDN II Trust, appellee has provided evidence 

showing its superior right to immediate possession. See Jimenez, 542 S.W.3d at 814.

First, the correction distribution deed lists Newton Sr.’s estate, by and through CB&T, as 

the grantor of the Property, and lists appellee as the grantee. And second, the JDN II 

Trust document lists CB&T as trustee and provides that upon the trust’s termination, the 

trustee must distribute the trust’s assets to Walker’s descendants. See id. at 815 (“The 
11

special warranty deed in evidence established that [appellee] was one of the property’s 

owners. The [appellants]’ continued possession of the property following [appellee]’s 

notices to vacate created a tenancy at sufferance. Evidence of the [appellants]’ tenancy 

at sufferance, along with the notices to vacate, established [appellee]’s right to immediate 

possession of the property.” (cleaned up)); Rice, 51 S.W.3d at 709 (“To prevail in a 

forcible detainer action, a plaintiff is not required to prove title, but is only required to show 

sufficient evidence of ownership to demonstrate a superior right to immediate 

possession.”).

Nevertheless, arguing that the Property was improperly distributed to the JDN II 

Trust instead of the JDN Trust, appellants assert that appellee lacks “a valid chain of title 

to the Property” and that the issue of ownership—and thus the right to immediate 

possession—hinges on the resolution of a material issue of fact. Appellee responds by 

directing this Court to a memorandum opinion from the Fort Worth Court of Appeals, 

which we find instructive. See Gaber v. U.S. Bank Nat’l Ass’n, No. 02-20-00376-CV, 2021 

WL 5367851, at *1 (Tex. App.—Fort Worth Nov. 18, 2021, pet. denied) (mem. op.).

In Gaber, the appellant defaulted on his home-equity loan, and U.S. Bank obtained 

a foreclosure order for the relevant property. Id. “[T]he Bank conducted [a] nonjudicial 

foreclosure sale and acquired the [p]roperty through a substitute trustee’s deed.” Id. The 

Bank demanded possession of the property and sent a notice to vacate, but the appellant 

refused to vacate. Id. The Bank then filed a forcible detainer action in the justice court, 

which ruled in the Bank’s favor. Id. The appellant appealed to the county court which 

granted summary judgment for the Bank. Id. The appellant appealed the county court’s 

summary judgment, presenting five issues to the Fort Worth court for review, the first 
12

three of which concerned the validity of the bank’s deed. Id.

The Fort Worth court affirmed the county court’s summary judgment. Id. at 2. It 

stated that “[a] forcible detainer plaintiff is not required to prove title; it is only required to 

offer sufficient evidence of ownership to demonstrate a superior right to immediate 

possession of the property.” Id. Thus, it continued, “any questions about defects in the

foreclosure process or whether the sale of property under a deed of trust is invalid may 

not be determined in a forcible detainer action and must be brought in a separate suit, 

which [appellant] did not do.” Id. (cleaned up). It concluded that, apart from his evidentiary 

challenges to the deed, “[appellant] d[id] not appear to argue that the evidence was 

insufficient to support the Bank’s superior right to possession; all of [appellant]’s 

arguments regarding the superior right to possession [we]re premised on the [d]eed’s 

alleged invalidity.” Id. at 3. The court overruled the appellant’s challenges and affirmed 

the county court’s judgment. Id. at 6.

Here, too, by their first issue, appellants attempt to preclude summary judgment 

on the issue of possession by asserting that the instrument granting appellee its 

ownership interest in the Property was invalid. While they may or may not be able to 

challenge the validity of the deed and of appellee’s chain of title to the Property in a 

separate suit, the issue does not preclude summary judgment in this forcible detainer 

action because appellee’s summary judgment evidence proved appellee’s superior right 

to immediate possession of the Property. See Subsea 7 Port Isabel, LLC, 593 S.W.3d at

873; Jimenez, 542 S.W.3d at 815; Rice, 51 S.W.3d at 709; Falcon, 976 S.W.2d at 338;

see also Gaber, 2021 WL 5367851, at *6.

We overrule appellants’ first issue.
13

III. THERE IS NO ISSUE OF MATERIAL FACT AS TO THE PROPERTY’S HOMESTEAD 

CHARACTER

By their second issue, appellants contend that “[a] genuine issue of material fact 

regarding [the] homestead character of the Property exists that precludes summary 

judgment.” Specifically, they assert that “[a]s the [p]rimary [b]eneficiary[ of the JDN II 

Trust], [Newton Jr.] was the equitable owner of the Property” and “had a present 

possessory interest in the Property.” Given those putative ownership and possessory 

interests, and having mainly resided at the Property for over fifteen years, appellants 

assert that the Property was Newton Jr.’s and O’Neal’s homestead. Thus, appellants

contend, O’Neal may “occupy the Property during her life or for so long as she may elect 

to use or occupy the Property as a homestead, pursuant to Article XVI, [§] 52 of the Texas 

[c]onstitution,” which provides:

On the death of the husband or wife, or both, the homestead shall descend 

and vest in like manner as other real property of the deceased, and shall be 

governed by the same laws of descent and distribution, but it shall not be 

partitioned among the heirs of the deceased during the lifetime of the 

surviving husband or wife, or so long as the surviv[o]r may elect to use or 

occupy the same as a homestead, or so long as the guardian of the minor 

children of the deceased may be permitted, under the order of the proper 

court having the jurisdiction, to use and occupy the same.

TEX. CONST. art. XVI, § 52.

A. Applicable Law

“The party claiming the homestead exemption has the burden of establishing the 

homestead character of the property.” Dominguez v. Castaneda, 163 S.W.3d 318, 330 

(Tex. App.—El Paso 2005, pet. denied). Merely residing for any length of time in a house 

on the property does not convert the property into a homestead, and “the word ‘home’ is 

not necessarily synonymous with ‘homestead.’” Id. at 331. What type of interest one must
14

actually hold in the property to support a homestead claim seems to be an unsettled

question. Some courts have stated that ownership plus a possessory interest are required

to support a homestead right; others conclude that a possessory interest alone will suffice. 

Compare Greene v. White, 153 S.W.2d 575, 586 (Tex. 1941) (concluding that appellants 

“could have no homestead right or interest in land to which they had no title”), and

Dominguez, 163 S.W.3d at 331 (“Possession and use of land by one who owns it and 

who resides upon it makes it the homestead in law and in fact.”), and Sparks v. Robertson, 

203 S.W.2d 622, 626 (Tex. App.—Austin 1947, writ ref’d) (“One can[]not have a 

homestead interest in property the title to which is in neither spouse nor in the 

community.”), with Inwood N. Homeowners’ Ass’n v. Harris, 736 S.W.2d 632, 636 (Tex. 

1987) (“A homestead may attach to any possessory interest, subject to the inherent 

characteristics and limitations of the right, title[,] or interest in the property. The 

homestead, however, will not operate to circumvent an inherent characteristic of the 

property acquired.” (internal citation omitted)), and Gann v. Montgomery, 210 S.W.2d 

255, 258 (Tex. App.—Fort Worth 1948, writ ref’d n.r.e.) (“The claim of homestead 

exemption does not depend on unqualified fee ownership of the land involved.”), and

Capitol Aggregates, Inc. v. Walker, 448 S.W.2d 830, 837 (Tex. App.—Austin 1969, writ 

ref’d n.r.e.) (“[A]ny possessory interest in a lot or lots, the fee[ ]simple title not being 

required to support it, coupled with the requisite occupancy by the husband and his family, 

is sufficient to support a homestead claim.”). Common to each approach, however, is the 

requirement of a possessory interest in the property to support the homestead claim.

In the trust context, “[t]he trustee of a trust holds bare legal title and the right to 

possession of trust assets, while the beneficiary is considered the real owner of the 
15

property, holding equitable or beneficial title.” Burns v. Miller, Hiersche, Martens & 

Hayward, P.C., 948 S.W.2d 317, 322 (Tex. App.—Dallas 1997, writ denied); see Bradley 

v. Shaffer, 535 S.W.3d 242, 248 (Tex. App.—Eastland 2017, no pet.) (“The trustee is 

merely the depository of the bare legal title. The trustee is vested with legal title and right 

of possession of the trust property but holds it for the benefit of the beneficiaries, who are 

vested with equitable title to the trust property.” (internal citation omitted)); Hallmark v. 

Port/Cooper-T. Smith Stevedoring Co., 907 S.W.2d 586, 589 (Tex. App.—Corpus Christi–

Edinburg 1995, no writ) (“The trustee is vested with legal title and right of possession of 

the trust property but holds it for the benefit of the beneficiaries, who are vested with 

equitable title to the trust property.”); see also Kuhns v. Carnes, No. 03-97-00721-CV, 

1999 WL 699809, at *8 (Tex. App.—Austin Sept. 10, 1999, pet. denied) (mem. op., not 

designated for publication) (“The law is well settled that in a valid trust legal title to the 

trust res is vested in the trustee and the beneficiary has the equitable title only, without 

possession or right of possession.”).

B. Analysis

Appellee argues that Newton Jr. lacked any ownership interest in the Property to 

support appellants’ homestead claim. Appellants contend that as the trust beneficiary, 

Newton Jr. was the “equitable owner” of the Property, and that this type of interest is 

sufficient to support such a claim. We need not address what, if any, ownership interest 

Newton Jr. held in the Property because, no matter the interest, he lacked the necessary 

right of possession to support the homestead claim. See Harris, 736 S.W.2d at 636;

Burns, 948 S.W.2d at 322; Hallmark, 907 S.W.2d at 589–90; see also Kuhns, 1999 WL 

699809, at *8. As trustee, CB&T was legal owner of the trust property with the right of 
16

possession and held the Property for the benefit of Newton Jr. See Hallmark, 907 S.W.2d 

at 589–90. Without the right of possession, Newton Jr.—and appellants by extension—

cannot support a homestead claim. See id. Appellants cite Laster v. First Huntsville 

Properties Co. for the proposition that homestead protections arise in those with a present 

possessory interest in property. See 826 S.W.2d 125, 130 (Tex. 1991). True. But Laster

does not arise in the trust context, see id. at 127 (concluding that “one ex-spouse who, 

pursuant to a consent decree of divorce, holds a future interest in property subject to the 

homestead right of the other ex-spouse, can mortgage that interest”), and appellants cite 

no authority in which an irrevocable trust beneficiary was deemed to hold a possessory 

interest in any trust corpus so as to support a homestead right.

Citing two cases, appellants also broadly assert that “an equitable interest will 

support a homestead claim.” However, again, neither case arises in the context of

property held in a trust. See Rose v. Carney’s Lumber Co., 565 S.W.2d 571, 573 (Tex. 

App.—Tyler 1978, no writ) (“Equitable title acquired under a contract of purchase is 

sufficient as a basis for a claim of homestead.”)7; White v. Edzards, 399 S.W.2d 935, 938

(Tex. App.—Texarkana 1966, writ ref’d n.r.e.) (concluding, without mention of equitable 

interests, that a husband maintained a homestead in a farm he occupied following his 

divorce which precluded judgment creditors from levying on the farm). While some 

equitable interests may support a homestead claim, neither Newton Jr. nor appellants 

7 Further distinguishing Rose from the instant case is the fact that, in the contract of purchase or 

conveyance context, “[e]quitable title is defined as ‘a right, enforceable in equity, to have the legal title to 

real estate transferred to the owner of the right upon the performance of specific conditions . . . .’” Glenn v. 

Lucas, 376 S.W.3d 268, 276 (Tex. App.—Texarkana 2012, no pet.) (quoting City of Houston v. Guthrie, 

332 S.W.3d 578, 588 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)). Here, unlike with a purchase 

contract, Newton Jr. was a beneficiary under the JDN II Trust and had no ability under the trust’s terms to 

acquire legal title.
17

maintain any such interest under the JDN II Trust.

In a final contention, appellants argue as follows:

[A] deceased spouse may not by testamentary provision deprive the 

survivor of the use and occupancy of the homestead. Lindsley et al. v. 

Lindsley, 139 Tex. 512, 518, 163 S.W.2d 633, 636-37 (Tex. [Comm’n Op.] 

1942). In interpreting a trust instrument, identical rules apply to the 

construction of trusts and wills. In re Ellison Grandchildren Trust, 261 

S.W.3d 111, 117 (Tex. App.—San Antonio 2008, pet. denied); San Antonio 

Area Found[.] v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). Therefore, in the 

same way that Texas law protects a surviving spouse’s homestead right 

when construing testamentary provisions in a Will, Texas law protects (or 

should protect) a surviving spouse’s homestead right when construing 

provisions in an irrevocable trust since both documents explicitly provide for 

plans of estate conservation and distribution after death.

Lindsley is distinguishable here because, among other things, as we have already 

concluded, Newton Jr. had no homestead right in the Property to begin with. Thus, he 

could not have deprived appellants of a homestead right.

At bottom, we disagree with appellants that there is evidence in the record that 

either Newton Jr. or O’Neal maintained a homestead right in the Property. However, even 

if they did, “homestead rights . . . attach to the land as acquired, subject to any burden, 

legal or equitable, upon the land at the time of its occupancy as a homestead.” Reid v. 

Howard, 9 S.W. 109, 110 (Tex. 1888); see Harris, 736 S.W.2d at 636 (“A homestead may 

attach to any possessory interest, subject to the inherent characteristics and limitations 

of the right, title or interest in the property.”); Sayers v. Pyland, 161 S.W.2d 769, 773 (Tex. 

1942) (“It is also a well-recognized principle of law that one’s homestead right in property 

can never rise any higher than the right, title, or interest that he owns in the property 

attempted to be impressed with a homestead right.”); cf. Grant v. Clouser, 287 S.W.3d 

914, 920 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“The general rule is that 

homestead rights attaching to property interests held by a cotenant are subordinate to 
18

another cotenant’s right to partition.”). The summary judgment evidence shows that the

Property was owned by the JDN II Trust before Newton Jr. and appellants moved into the 

Property and ostensibly claimed it as their homestead. To the extent that Newton Jr. and 

appellants had any homestead interest in the Property, it was subordinate to the JDN II 

Trust’s interest as owner of the Property. See Reid, 9 S.W. at 110; Sayers, 161 S.W.2d 

at 773; Grant, 287 S.W.3d at 920. Thus, when Newton Jr. died, and CB&T as trustee of 

the JDN II Trust attempted to distribute the Property to Walker’s descendants, appellants 

were required to vacate the Property.

Concluding that no issue of material fact exists as to the Property’s homestead 

character, we overrule appellants’ second issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

DORI CONTRERAS 

Chief Justice

Delivered and filed on the

6th day of July, 2023.