### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00449
- CV

Horace Marshall , Appellant

v. Estate of Jupitor T. Freeman, a/k/a Jupiter T. Freeman, Deceased , Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF BELL COUNTY NO. 33,627, THE HONORAB LE JEANNE PARKER , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Horace Marshall contend s that the trial court erred by admitting
Testator Jupitor T. Freeman a /k

/a Jupiter T. Freeman ’s will as muniment of title forty -one years after Test ator ’s death

. Because no evidence supports the trial court ’ s conclusion t hat Executor Hobert Freem an was n ot in default when he applied to probate the will as muniment of title a year after being told by an attorney he cons ulted that he need ed to proba te the wil l , w e will

reverse the t ri al cour t’ s order and render judgment denying the application to admit the will to probate as muniment of title.2 BACKGROUN D
Exec utor wa s among six son s born to Testa to r and his first wife, Neva d or , who died in 1 95 9

. 1 I n 196 3, Test ator married Lena Mae M arshall and lived with her and her children , Appellant and Che ryl M arshall

. T he birth certificates for Cheryl M arshall (born 1958) and Appellant ( born 1 961) do not list a father , but the record contains Appellant ’ s hig h school records list ing Testator as his fa th er and report cards from 1976

- 77 with the signat ure of “ Jupiter
Freeman ” as Ap p ellant ’ s parent or guardian. Testator signed the will a t issue on April 24, 1972, leaving his estate to “ my
sons, ” whom he later in the will identifie d as J.T., Leroy, Harr i e l, Hobert, Obie, and Alvin
Freeman ; t he will did not mention Appellant , Cheryl, or their mother, Len a Mae

. T he will lis ts a 20

- acre farm as Test ator ’ s property

. Test ato r and L ena Mae divorced on October 27, 1 97 7 . Te s tator died on November 25, 1 977.
A 2001 general warranty deed lists Jupitor T. Freem an, Jr., (J.T.) , individually and as independent executor of Testat or ’ s estate, as the grantor of a fee si mple determina ble
i nterest on a .64

- acre tract of lan d t o a church so long as the property was u s e d as a church.
T es timony indicates that the deeded land was part of a larger plot of family land at issue here

. Executor tes tif ied that he thought J.T. was “over the estate ” and that J.T. lived on the other
por ti o n of the p roperty for about fifty years. The deed state d that the law f irm that prepared the

1 A seventh son , Billy, died befo re the r elevant wi l l was made.3 deed had not examined the title and did not gu arantee that good and marketable t itle was conveyed

. T he church eve ntually returned its portion of the pr operty to the family

. 2 In 2014, t he City of T r o y obtained an easement for sewer, drain s, manholes , and pub lic utilities on the property. Ex ec uto r testified at the February 2020 hearing on admission of the will as muniment of title that , after reaching agreem en t w ith the brother s named under the will , he au thorized the placement of a manhole on the property ; he testified that he did not know abo ut the will at that time. Executor testified that four or five years before the February 2020 hearing he learned tha t his niece had found Test ator ’ s will in a suitca se or locker at Executor ’ s brother ’ s house . That testimony would place the discovery in February of 201 5 or 2016 , though
Executor tes tified to discovery dates ranging from as early as 2014 to a year or so b ef ore the hearing

. Exec utor tes tified that , per haps two or three years before the hearing, the T e xas H ighway Department paid the brot hers $1,000 relate d to Executor ’ s request that the department build access to the propert y . Executor testifie d that he c on s ul ted attorney Je rry Secrest regarding the Dep artment ’ s action about eighteen months before the February 2020 hearing , which would place the consultation in A ug ust 201 8

. He said Secrest told him “it need [s] to be prob ated ”

— app arently referring to the wi l l. Robert Gaines agr eed in Oc tobe r 2018 to pur chase a 19.3

- acre farm from the
Freem an brothers

. T he surviving Freeman brother s and descenda nt s of the deceased Freeman brot hers signed an agreement with Gaines that allowed J

. T. an d his wife to live in a resi dence on

2 The rec ord is somewhat uncle ar regarding to whom the church granted the property ; the deed is not in the re cord . Any owners hip is beyond the sco p e of this appeal.4 t he 19.3

- acre tract of lan d for a s lo ng as the y are able to live in the house. Appellant and Cheryl Marshall were not part of the agreement. On January 7, 2019 Appellant filed an application to deter mine heirsh ip and for partition of a 1 9.36

- ac re tract of real pr operty

. O n Augu st 5 , 20 19 , Executor filed a n application for probate of the will as a muniment of title concerni ng that tract and others. After two hearings, t he trial court found t hat the w ill was valid and ordered that it be filed a s a m uniment of title. T he tr ial court also signed a “ M emo to the F ile to indicate the reasons fo r [its] decision

. ” T he t rial cou rt wrote that , “ [i] nasmuch as the testimony was that deceased was living with Len a, Cheryl and Horace [when he w rote th e will ] but neither child was includ ed as an heir in [ the dec eased] ’ s Will, it appea red that deceased ’ s intent was to exclude Cheryl and Ho race as takers under his will. ” T he trial court ther eafter conclude d :

A ltho ugh more than 4 years elaps ed s ince th e death of [the deceased] , it was no t until the Highway Depar tment wanted to purchas e some of the land owned by the heirs of [the dece ase d ] that the heirs were told to get the Will probated. Considering the educati on o f t he heirs, and their lack of under st anding o f the legal system, the Cour t does not find that they lacked due diligence i n havin g the Will probated within the 4 years after t he date of death of [ the deceased].
Appellant filed a motion to reco n sider but did not request formal findings of fa ct and con clusions of law.

A PPLICABLE LAW With ex ceptions not applicable here, a will may not be admitte d to probate after the fourth a nn iversary of the testator ’ s death unless it is shown by proof that the applicant for the probate of the will was not in defa ult in failing to present the w ill for pr obate on or before the5 four th anniversary of the testator ’ s death. T ex. Est

. Co de § 25 6. 003(a) ; 3 Ferreira v. Butler , 575 S.W.3d 331, 334 (Tex. 2019) ; see also Tex. Est

. Code § 257.054 (a pplicant for probate of will as muniment of title must prov e that four years have not elapsed since date of test ator ’ s death and before application). 4 “ D e fault ” means “ failure to probate a will due to the ab sence of reasonable di ligence on th e part of the party of fering the i nstrument. ” In re Est ate of Allen , 40 7 S.W.3d 335, 339 (Tex. App.

— Eastland 2013 , no p et. ) (construing predecessor to section
256.00 3) ; see also In re Estate of Rothrock , 312 S.W.3d 271, 274 (Tex. App.

— Tyler 2010,

no pet.)

. A person having custody o f a will i s cha rged with knowledge that it must be filed for probate within the statutory period in order to rely on it, whether the necessity f or doing so is

3 Th ough th e will was written i n 1972, Testa tor died in 1977, and the pr obate was applied for in 2 019, the parties did not assert at the trial court or here that the 2009 codification of the Texas E states Code resulted in any subs t ant iv e change applicable here . The co dific ation was not intended to make any substantive change

. See Tex. Est. Cod e § 21. 001 (a ) ; In re Estate of Camp bell , 343 S.W.3d 899, 902 n.3 (Tex. A p p.

— Amarillo 2011, no pet.) ( applic able statute only sli gh tly altered )

.
4 We note that, while the general pr obate statute expressly allows for the probate of a wi ll mor e than four year s af ter the death of the test ator on proof that the applicant was not in default , the statute on probate of a will as muniment o f title requir e s proof that “ four year s have not elap sed since the date of the te stator ’ s death and before the ap plication ” and does not have a similar e xpress e xceptio n for appl icants not in default. Compare Tex. Est. Code § 256 .003(a ) wit h id. § 25 7. 0 54 (2) ; see also Ferreira v. Butler , 531 S .W.3d 337, 341 n. 3 (Tex. App.

— Houston [1 4th Dist. ] 2017), vacated by 575 S. W.3d 331 (Tex. 2019 )

. The Co ur t of Appeals in Ferreira e xpressly did not decide whether the non

- default exception ap plied to muniment cas es because it found th e applicant in def ault , and the Texa s Supreme Court did not address the issue in vacat ing the ju dgment of Co ur t of Appeals on grounds that one person ’ s default could not ba r another person applying to probate a wi ll as muniment of tit le in her individua l capacity

. However, sec tion 257 .054(2 ) was added as part of the 2009 codification of the E states Code which was expr essly intended not to work substantive changes to the law. See Tex. Est. Code § 2 1.001(a ); In re Estate of Camp bell , 343 S.W.3d 899, 902 n.3

. B e cause Appellant d oes no t raise this issue as grounds for reversal and because we do not fin d a n express h oldin g that the non - default exc eption to the four

- year l imitation is no longer applicable to m uniment cases , we will ex amine th e record for evi dence supporting the tr ia l court ’ s co nc lusion th at Executor was not in default despite filin g his a pplication for ty

- on e yea rs after Testator ’ s death.6 apparent to him or not

. Rothrock , 312 S.W.3d at 274

. I gnorance of the law does not excuse failure to comp ly wi th the sta tute. See Brown v. Byr d , 512 S. W.2 d 753, 757 (Tex. Civ. App.

— Tyler 1974, no writ) , disapproved o f on other gr ounds b y Ferr eira , 575 S.W.3d at 338 ( disapproving of cases imputing one person ’ s default to oth ers) )

. A person who has cus tody of a wi ll and refrains for the statutory period fr om presenting it for probate for personal considerations or under the ass umption tha t his title to property is safe without it is in default

. Rothrock , 312 S.W.3d at 274

. As used in section 256.003(a ), “def ault” means failure to probate a will because of the absence of reasonable diligence by the party offering the instrument.
Ramirez v. Galvan , No. 03

- 17

- 00101

- CV, 2018 WL 454733, at * 2 (Tex. App.

— Austin Jan. 10,
2018 , no pet .) (mem. op.) (citing In re Esta te of Allen , 407 S.W.3d 335, 339 (Tex. App.

– Eastland 2013, no pet.) )

. H owever , Texas courts have been quite liberal in admitting a will to probate as a muniment of title after the fou r - year limitation period has expired upon the showi ng of an excu se by t he pr oponent of the reason for the fai lure to offer the will. C hovanec v. Chovanec , 881 S.W.2d 135 , 13 7 (Tex. App.

— Houston [1st Dis t.] 1994, no wr it) ; see also Allen , 407 S.W.3d at 339

. Nearly a century ago, the W aco C ourt of Appeals observed th at “ [t]he tend ency of our courts has been from its earliest decisions to permit wills to be filed after the four year period, where there is any evidenc e of a probative force which would excuse the failure to offer the will soone r. ” Armstr ong v. Carter , 2 91 S.W. 6 26, 6 27 (T ex. App.

— Waco 1927,

no writ)

. Though i gnorance of the law is no excuse , the proponent ’ s belief that probate is
unnecessary, coup led with a concern over the possible cost of probate, c an constitute legally and factuall y sufficien t evide nce to support ad mitting a will to probate mo re than four years after the7 death of the testator. Kamoos v. W oodward , 570 S.W.2d 6, 8

- 9 (Tex. Ap p.

— San Antonio 1978, writ ref ’ d n.r.e.)

. Generally, a party applying for pro bate would not be consi de red person ally in defaul t if he or she did not know of the existence of the will , provided such proponent was not negligent in failing to discover whet her there was a will. In re Est ate of Campbell , 343 S.W.3d 899, 903 (Tex. App.

— Amari llo 201 1 , no pet. ) r ejected on other gr ounds by
Ferreira , 575 S.W

. 3 d at 338 (rejecting consideration of whether late probate would work an injustice or frustrate tes t ator ’ s intent) )

. The e vidence must show a lack of dilig ence in offering the will for p rob ate as muniment of tit le

. See In re Estate of McGrew , 906 S.W.2d 53, 56 (T ex. App.

— Tyler 1995, writ denied). Courts must examine solely the applicant ’ s actions to determine default and cannot consider w he ther permitting the late probate of a will would work an injustice or frustrat e the intent o f the testa tor. Ferreira , 575 S.W. 3 d a t 338 n.56 (r ejecting contrary statement in Cam pbell , 343 S.W.3d at 90 7

- 08 ). The burden is on t he applicant to sho w that he was not in default in failin g to
presen t a will for probate withi n the prop er time. Roth rock , 312 S.W.3d at 274

. Whether the party applying for probate is in def ault is ordinarily a fact question for the trial court. Id

. at 273. When find ings of fact are neither filed nor requested followi ng a bench trial, it is implied that t he trial cou rt m ade all findings necessary to supp ort its judgment, provided that (1) the necessary findings are raised by the pleadings and supported by the evi dence , and (2) the decision can be sustained by any reaso nable theory consistent with the evi de nce and appl ic ab le law. Id

. at 273

- 74

. The trial court ’ s express or implied findings of fact after a bench trial are reviewable for legal and factua l s ufficiency by the same standards applied in reviewing the evidenc e supporti ng a jury ’ s answer. Id

.8 A ppellant doe s no t specify whether his challenge is directed toward the legal or factu al suff iciency of the evidence. However, A ppellant asks in his p rayer for relief that we

re verse and direct the trial court ’ s rendit ion of decision on the wil l issue

— the equivalent o f a legal

- su fficiency challenge

. 5 See Tex. R. App. P. 38.1(j) (brief must contain short conclusion clearly stating nature of relief sou ght); Tex. Parks & Wildlife Dep ’ t v. Sawyer Trust , 354 S.W. 3d 384 , 392 (Tex. 2011) (generally cou rts can gra nt only reli ef r equested) ; Elias v. Mr. Yamaha, In c. , 3 3 S.W.3d 5 4, 59 n.6 (Tex. A pp.

— El Paso 2000 , no pet. ) (rendition is remedy for legal

- sufficiency challenge )

. Whe n an appellan t att acks matters upon which the a ppellee had the burden of proof on leg al

- sufficien cy gr o unds, we must consider only the evidence a nd inferences that , when viewed in their most favora ble light, tend to support the finding and disregard a l l ev idence and inferences to the co ntrary

. C ity of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005) ; Holt
Atherto n Indus. v. Heine , 835 S .W.2d 80 , 84 (Tex. 1992 )

. Where reasonable minds could differ on the meaning of the evid ence before the trial court or the inferences and conclusions t o be drawn from the evidence, we may not substitute ou r jud gment f or tha t of the tri al court so lo ng as the eviden ce falls within this zone of reasonable disagreement

. City of Keller , 168 S.W.3d at 822 ; Rothrock , 312 S.W.3d at 274

. If more than a scintilla of evid ence s upport s the finding , the

no - evidence c hallenge fai ls. H eine , 835 S.W

. 2 d at 84.

5 Tho ugh A ppellant in the introductory portion of his b rief requests remand of the case, h is pray er for re lief clari fies that he se eks remand of the case to p ursue his application for an heirship de termination.9 DISCUS SION App el lant contends by point one that t he trial court er roneously admitted the w ill

as a m uniment of t itle over forty

- one y ears after Testa tor ’ s death

. We will examine the record to d etermine whethe r any eviden ce supp orts the trial court ’ s conclusio n t hat Executor was not in default when he applied to probate the will as munim ent of title. We look to a n array of cases to describe the necessary diligence

. Viewe d most favorabl y to the court ’ s order, the evidenc e sh ows that E xecutor did not know ther e was a will for about forty years , and there was no e vid ence that Execut or was negligent in failing to disc over it locked in a suitcase at his brother ’ s home when he did not know a will existed

. See Camp bell , 3 43 S. W.3d at 903.
How ever, n o evidence s upport s a conclusion that Executor acted reasonably di ligently in probating the will as muniment of title up on discovering the will and the need for
p robate

. His elev enth

- grade education , lack of experien ce acti ng as e xecutor of a will , and lack of legal sophistication do not excuse his decision not to apply for probate of the will for a year after his lawyer to ld him he needed to do so. There is no evidence in the record that he lacked funds t o hir e a l awyer other than perha ps a n infere nce from the fact that the taxes on the property

were past due, and that tenuous inference i s undermined by the f act that Executor learned th at the will n eeded to be probated by consulting a lawyer

. This case is u nli ke th e case in which d elay in probating was excused because there was evidence , albeit disput ed, that the applicant had previously received advice from an attorney and believed that everything regarding the will that needed to b e done had been done an d tha t pro bate was unne cessary
. See In re E st ate of Ozee , No. 06

- 12

- 00070

- CV, 2012 WL 5897602, at *3 (Te x. App.

— T exarkana Nov. 26, 2012 , no pet

. )10 (mem. op. ) . H ere , the e vidence is that Executor waited a year after being to ld he needed to probate the will , incl u d i ng se ven months after A ppel lant filed h is suit to establish heirship.
T he year - long de lay after being told to probate the will by a lawyer he cons ul ted about negotiations with the highway department distinguishes this case from ones in which peopl e who had assumed they did not nee d to probate a will did so shortly after lear ning of the

ne ed to probate the w ill. In Kamoos , the court affirm ed a fin ding of no default when an applica nt of limited means , upon learning from an o il company of an outstand ing ro yalt y interest and of
th e ne ed to probate the will five ye ars after her husband ’ s death , “ immediately we nt to an attorney an d the will was offered f or probate

. ” 570 S. W.2d at 9 . Similarly, in Chovanec , an applicant did not probate his wife ’ s will f or th i rtee n years because he b elie ved h e had inher ited everything, but upon learning there mi ght be title prob le ms, “ immediately ” o ffered the wil l for
pr obate. 881 S.W.2d at 13 7

. The appellate court in Chovanec reversed a summary judgment denying pro bate after con clud ing that this ev iden ce sh owed more than applicant ’ s ign orance of the law and ra ise d a fa ct issue regarding the applic ant ’ s def ault

. Id

. at 137

- 38

. I n In re Estate of
Hammack , the applicant testifie d that he did not apply for probate of his wife ’ s wil l for eight
years af ter her d eath because he lacked the money to do so ; but w hen he le arned that probate w as

necessar y to sell his hous e , he hi red coun sel and applied to probate her wi ll as muniment of title two month s late r. No. 12

- 15

- 00246

- CV, 2016 WL 1 446083, at * 1 (Tex

. App.

— Tyle r Apr. 13,
2016 , no pet. ) (mem. op. )

. The Hammack c ou rt held that the evidence created a fact issue
regar ding def ault for the trial court to decide and affirmed the trial court ’ s finding of no default.

E xecutor ’s a ctions do n ot resemble those t hat this Court found compelled reversing and remanding a t r ia l court ’s refus al to admit a will to probate late. Se e Ramire z , 2018 WL 454733, at *1 . I n t hat case, a n immigrant widower unfamiliar with Texas law wh o11 b elieved th at his w if e ’s will was suffici ent alone to convey the pro perty to him did not apply for proba te for six years after her death. Id. H o wever, upo n being informed by a titl e company that probate was necessary , he consulted an attorney and “ prom ptly ” filed a n applic at ion to probate the w ill as mu n iment of title. Id. The trial court denied the appl ication , but this Court reversed the denial and rema nded, co ncluding that the trial court ’ s decision was against the great weight and pr eponderance of the evidence

. Id. a t * 2

- 3. Here, ther e i s no evid ence that Executor affirmatively believed that probate was not necessary, only that he did not apply for i t for ye ars after learning of the will ’ s existence and for a full year after being told he needed to pro bate th e will. I n these c ircumstance s, w e cannot const rue app lying for prob ate a year after learning of the need to probate the will as “ prompt. ”
T he facts in this case do n ot conform to those in the Amarillo C ourt of A ppeals
op inion that affirmed a trial co urt ’ s findi ng that th e ap plicant w as not in default w hen applying to
pro bate a will seve n - and

- a - half years after the testa tor ’ s death. Cam pbell , 343 S.W.3d at 901,
90 8. I n that case, the applicant discovered the will almost seven years after the test ator ’ s death

an d d id not kn ow of the nee d to probate the will but ap plied for p r obate seven months after discov er ing the will. I d. at 90 1

- 0 2

. T he court of appe als affirm ed the trial court ’ s admission of the will to probate relying in part on precedent al l owing late pro b ate wh en it would no t wo rk an injustice or frustrate the inte nt of the testator , using it as an excep tion to the princ iple that a benefactor ’ s lack of di ligence is imputed to the benefactor ’ s heirs

. Id. at 90 6

- 08. T he T e xas Supreme Court has since reje c ted both th e i mputat i o n o f another ’ s default and the evaluation of the e quit ies of probate

— including possib le frustration of the tes tator ’ s intent

— when consider ing the applicant ’ s diligence , instructing courts that “ only the applicant ’ s conduct is relevant to determinin g wheth er s he ‘ was not in default

. ’ ” F er reira , 575 S .W .3d at 33 7

- 3 8.12 This case is a lso dis tinct from th e case in which the court affirmed the admissio n of a will to probate as muniment of title three years after learning of a competing cla im to title to
th e pr oper ty devised by a wil l. McGre w , 906 S.W.2d at 56. I n that case, the applica nts bou ght
th e property ten years after the test ator ’ s death and di d not know of the c ompe ting claim for another th ree years. Id. The court of appeals hel d that the evi dence i n th e case f ailed to show a lack o f dil igence by applic an t s during the addi tional thre e ye a r s before they applied for probate of the will. Id. T h e court did not mention any evidence that the applicant s were told they needed to probat e the will. In this cas e , there is no evidence of d il igence

— and undi sputed e vidence of lack of reasonable dilig ence

— in applying for probate of the will and no evi dence of excuse for
Executor ’ s d elay

. While E xec utor ’ s delay is excusable for the d ecades a fter Testa tor ’ s death bef ore he l earned of th e will , E xe cutor was charged with knowle dge th at the will must be filed for probate upon learning th at his n iece h ad found the will

. See Rothrock , 312 S.W. 3d at 274. Even if h is lack of higher educatio n and le gal sophistication ex cuse his failure to apply for
pro bate t h ro ugh A ugust 2018, no evidence supports a finding of reasonable diligence in his failure to apply for probate for a year after a lawyer told him that the will needed to be probated

. This i s not a c ase in which he be liev ed a l aw yer told him that he did not need to probate the will

or in which some one else filed a legal action that he believed would lead to probat e of the will

. I nstead, he did not file to probate the will when told he needed to d o so a nd waited sev en mo n ths

a fter Appellant filed his Application for Determination of Heirship and for Parti tion of Property that expressly, if incorrectly, stated that Testator died in testate. No evidence in the r ecord provides an explanation or excus e for Executor ’ s delay for a year after being told to file the will13 for probate , including seven months after Ap pellant filed thi s suit. Executor failed to carry his burden to prov e dili gence that negates default in timely probati ng the will

. Looking s ol ely at evidence of Ex ecut or ’ s conduct in the light most favorable to the trial co urt ’ s d ecision, we conclude th at the trial court er red by finding t hat E xe cutor proved
h e was no t in default b ecause no evidence supports the trial c o urt ’ s impl icit conclusi on that
Exec utor acted with re asonable dil igence in applying to probate the wil l as a muni ment of title. Instead, un disputed evidence sho ws a lack of reasonable diligence in his filing o f the application to probate the will as muni ment of tit le four or fi ve years after learning of the will, one year af ter being told by his form er law yer he should apply for probate of the will , and seven months after Appella nt filed his heirship application alleg ing that h e believed Testator died intestate

. 6
We sustain Ap pel lant ’ s point one. A c co r dingly, we need not reach App ellant ’ s

rema ining points asserti ng t hat th e tr ial court erred by plac ing the burden of proof on Ap pellant and by relying on its Memo to t he Fi le up on Testator ’s perceived intent and the effects of ad mitting the w ill as a m unim ent of t itle

. See Te x. R. App. P. 47.1(a).

CONCLUSION
We reverse the t rial court ’ s order admitting the will to probate as a munim e nt of title and render judgment denyi ng the application to probate the will as muniment of tit le. T h e

cause m ay resu me i n the trial court with further proceedings con s istent with this opi nion and ju dgment.

6 Even if A ppellant had alternatively request ed a factual

- s ufficiency review, our conc lusion that no evidence supports the judgment wou ld make a factua l

- suffic iency review unne cessary.14 _______ _________ _____ ____________________ _ Darl ene Byrne , Ch ief Justice Before Chief Justice Byrne, Justices Baker and Smith Reversed and Rendered Filed: April 2 9 , 2022