DOCKET NO. 12-15-00246-CV

IN THE

TWELFTH COURT OF APPEALS

at Tyler

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In the Matter of the Estate of Willie Sue Hammack, Deceased

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LARRY GENE MARSH, BILLIE MARIE BUCKLEY, DEBORAH SUE STUART, AND 

TERRY LYN MARSH

Appellant 

V.

ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.

Appellees

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Appealed from the County Court at Law 

of Nacogdoches County, Texas

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APPELLANT’S BRIEF

Robert M. Minton 

Texas Bar No. 14195000 

Minton & Brown, PLLC 

P. O. Box 1688 

Henderson, Texas 75653 

Telephone: (903) 657-3543 

Facsimile: (903) 657-3545 

E-Mail: mintonbrown@suddenlinkmail.com 

ATTORNEY FOR APPELLANT

APPELLANT’S NOT REQUESTING ORAL ARGUMENT

ACCEPTED

12-15-00246-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

11/25/2015 12:25:03 PM

Pam Estes

CLERK
i

IDENTITY OF PARTIES & COUNSEL

Appellant:

Estate of Willie Sue Hammack by Morrison Hammack, Jr.

Counsel for Appellant:

Trial and Appellate Counsel:

Robert M. Minton

Texas Bar No. 14195000

Minton & Brown, PLLC

P. O. Box 1688

Henderson, Texas 75653

Telephone: (903) 657-3543

Facsimile: (903) 657-3545

E-Mail: mintonbrown@suddenlinkmail.com

Appellees:

Larry Gene Marsh, Billie Marie Buckley, Deborah Sue Stuart, and Terry Lyn Marsh

Counsel for Appellees:

Trial and Appellate Counsel:

Mr. Christopher C. Hughes

Fairchild, Price, Haley & Smith, L.L.P.

1801 North Street

P.O. Box Drawer 631668

Nacogdoches, Texas 75963

Telephone: (936)569-2327

Facsimile: (936)569-7932

E-Mail: chughes@fairchildlawfirm.com

Presiding Judge:

The Honorable Jack Sinz
ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL...............................................................i

TABLE OF CONTENTS.....................................................................................ii

INDEX OF AUTHORITIES................................................................................iii

STATEMENT OF THE CASE..............................................................................iv

ORDER FROM WHICH RELIEF IS SOUGHT.........................................................iv

ISSUES PRESENTED........................................................................................v

STATEMENT OF FACTS...................................................................................2

SUMMARY OF ARGUMENT..............................................................................4

ARGUMENT & AUTHORITIES...........................................................................5

A. Combined Issues.............................................................................5

CONCLUSION...............................................................................................12

PRAYER.......................................................................................................13

CERTIFICATE OF SERVICE.............................................................................13

CERTIFICATE OF COMPLIANCE.......................................................................14
iii

INDEX OF AUTHORITIES

CASES PAGE(S)

Brown V. Byrd, 512 SW2d 753—(Ct. Appls-Tyler-1974).............................................10

In Re Estate of Campbell, 343 SW3d 889—(Ct. Appls-Amarillo-2011)...............................9

In the Estate of Ruby Fowler Cornes, 175 SW3d 491—(Ct. Appls-Beaumont-2005)..............10

Orr V. Walker, 438 SW3d 766—(Ct. Appls-Houston-2014)..........................................10

Estate of Everett h. Rothrock Deceased, 312 S.W.3d 271 —(Ct. Appls-Tyler-2010)................8

Schindler V. Schindler, 119 SW3d 923—(Ct. Appls-Dallas-2003)................................9, 10

Estate of Cordelia Williams, Deceased, 111 SW3d 259—(Ct. Appls-Texarkana-2003)...........11
iv

STATEMENT OF THE CASE

This is an Appeal from the Order Admitting Will to Probate as Muniment of Title, 

entered by the County Court at Law of Nacogdoches County, Texas, of a Will filed eight (8) 

years after the date of death of the Testatrix. 

Contestants contend that the evidence was factually and legally insufficient to support the 

Judgment of the Court, finding “no fault” on the part of Applicant, and that such will should 

have been denied probate.

ORDER FROM WHICH RELIEF IS SOUGHT

The Order of the Court Admitting Will to Probate as Muniment of Title, (CR-56), finding 

that Applicant was not in default for failing to present the will for probate within four (4) years 

of the date of death of Decedent, (CR-56).
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ISSUES PRESENTED FOR REVIEW

1. The evidence supporting the Trial Court’s finding that the Applicant was not in 

default for failing to present the will for probate within four (4) years of the date of death of 

Decedent was factually insufficient, (CR-56, CR 74-75).

2. The trial Court’s finding that Applicant was not in default for failing to present 

the will for probate within four (4) years of the date of Decedent’s death was so against the great 

weight and preponderance of the evidence as to be manifestly unjust, (CR-56, CR 74-75).

3. The evidence supporting the Trial Court’s finding that the Applicant was not in 

default for failing to present the will for probate within four (4) years of the date of death of 

Decedent was legally insufficient, (CR-56, CR 74-75).
1

DOCKET NO. 12-15-00246-CV

IN THE

TWELFTH COURT OF APPEALS

at Tyler

-------------

In the Matter of the Estate of Willie Sue Hammack, Deceased

-------------

LARRY GENE MARSH, BILLIE MARIE BUCKLEY, DEBORAH SUE STUART, AND 

TERRY LYN MARSH

Appellant

V.

ESTATE OF WILLIE SUE HAMMACK BY MORRISON HAMMACK, JR.

Appellees

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Appealed from the County Court at Law

of Nacogdoches County, Texas

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APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

Appellant’s appeal from the Trial Court’s Order Admitting Will to Probate as Muniment of Title 

entered on the 25th day of June, 2015. The Decree should be reversed.
2

STATEMENT OF FACTS

This is an Appeal from Order Admitting Will to Probate as Muniment of Title. 

(CR-56) Willie Sue Hammack passed away on July 2, 2006 in Nacogdoches County, Texas, 

leaving a last will and testament dated April 2, 1986. On July 17, 2014, Morrison Hammack, Jr., 

her husband, filed an application to probate Will as a Muniment of Title, and the parties 

contestant, being Larry Gene Marsh, Billie Marie Buckley, Deborah Sue Stuart and Terry Lyn 

Marsh filed their contest to such will (CR-26), based on the grounds that the will should not be 

admitted to probate since it was past the statute of limitations for filing a will for probate and 

admitting same. Mr. Morrison Hammack. Jr. knew of the will and its existence at the time of his 

wife’s death, and stated in deposition that he knew the contents of the will and how it left the 

property. 

Mr. Hammack failed to probate such will within four (4) years of death of Willie Sue 

Hammack, Deceased, and did not file same or attempt to probate same until July 17, 2014, (CR 

8-11).

This case turns upon the sufficiency of evidence, and whether or not same is sufficient to support 

the findings of the Court in its findings of its conclusion of law, and its finding in its Order 

Admitting Will to Probate, (CR-56). It is a contention of contestants that Applicant is at fault for 

failing to present the will of Willie Sue Hammack for probate within four (4) years after the date 

of her death, as such limitations are set out in Section 256.003, Texas Estates Code, in that 

Applicant had possession of the will from and after the date of death of Willie Sue Hammack on 

July 2, 2006, and did not present the same for probate until the filing of an Application to 

Probate, filed on July 17, 2014, in Nacogdoches County, Texas. Further, that the evidence 

conclusively shows that Mr. Hammack was in possession of property of the estate sufficient to 
3

pay any cost of probate, which would enable him to be able to employ council to probate said 

last will and testament prior to the expiration of the four (4) year limitation contained in Section 

256.003, Texas Estates Code, and that Mr. Morrison Hammack, Jr., is at fault for failing to 

probate said will within such four (4) year period of limitations, and that his actions in failing to 

do are not excused.

The Trial Court entered Order Admitting Will to Probate on June 25, 2015, finding that 

Morrison Hammack, Jr., Applicant, was not in default for failing to present the will for probate 

within four (4) years of the death of Decedent, (CR-56).

The Request for finding of Facts and Conclusions of Law were filed by Contestants on 

July 8, 2015, (CR-63).

The Notice of Past Due Findings of Facts and Conclusion of Law were filed on July 30, 

2015, (CR-69).

The Contestants Request for Additional time to file Findings of Facts and Conclusion of 

Law was filed on July 31, 2015, (CR-71).

The Order of Finding Facts and Conclusion of Law was filed September 3, 2015, (CR74).

The Denial of Additional Findings of Facts and Conclusion of Law was filed September 

3, 2015, (CR-76).

The Notice of Appeal was filed September 22, 2015, (CR-77).
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SUMMARY OF ARGUMENT

The evidence shows that Morrison Hammack, Jr., knew of the terms contained in the Last 

Will and Testament of Willie Sue Hammack, Deceased; of the admonition of action in a probate 

Court as contained in said will; that he did not seek nor rely upon the advice or opinions of 

others as to the time in which to, nor the necessity of, probating said will; that he relied upon his 

own knowledge, or the lack thereof, concerning the necessity of probate and the time limit in 

which to do same.

The evidences show that there was significant value of assets in the Estate of Willie Sue 

Hammack, Deceased with which to pay for the costs of probate of her Last Will and Testament.

The Court erred in finding “no fault” on the part of Applicant, Morrison hammock, Jr., 

and in admitting said will to probate as a muniment of title.
5

ARGUMENTS AND AUTHORITIES

The issues presented for review can all be covered by argument and authorities at one 

time, avoiding the multiplicity and duplication of authorities, which pertain to the same subject. 

The issues restated are as follows:

A. The evidence supporting the Trial Court’s finding that the Applicant was not in 

default for failing to present the will for probate within four (4) years of the date 

of death of Decedent was factually insufficient, (CR-56, CR 74-75).

B. The trial Court’s finding that Applicant was not in default for failing to present 

the will for probate within four (4) years of the date of Decedent’s death was so 

against the great weight and preponderance of the evidence, (CR-56, CR 74-75).

C The evidence supporting the Trial Court’s finding that the Applicant was not in 

default for failing to present the will for probate within four (4) years of the date 

of death of Decedent was legally insufficient, (CR-56, CR 74-75).

I.

The legislature of the State of Texas spent time and the equivalent of time in money, not

only in the past, in passing the Texas Probate Code, but in formulating the Texas Estates Code. 

Section 251.001 of the Texas Estates Code provides that a person must be over 18 years of age, 

or married or has been married, or a member of the U. S. Armed Forces or an auxiliary of same, 

in order to execute a valid will; Section 251.051 that provides that the will must be in writing;

Section 256.001 that provides that the provisions and terms of a will will not be effective until 

the will is admitted to probate; and Section 256.003 provides that the will shall not be admitted 

to probate, if not filed for probate within four (4) years after the date of death of the maker of the 

will. It would be inconceivable to believe that the State Legislature of the State of Texas spent 
6

time and money in order to pass such provisions, along with other provisions of the Texas 

Estates Code, unless the intent was that we would abide by same. Further, it would be 

inconceivable to believe that just “any excuse” would be allowed, so that such provisions would 

be nullified.

It is the contention of the Appellants that the evidence presented in the case, in trial 

Court, was insufficient to support the finding of the Trial Court that Mr. Morrison Hammack, Jr., 

was not in default for failing to apply for probate of the Last Will and Testament of Willie Sue 

Hammack, Deceased, within four (4) years of her death.

Mr. Morrison Hammack, Jr., the Applicant for probate, did not appear at the hearing on 

the Application to Probate Will as a Muniment of Title (RR-5, RR-6).

The issues are whether or not Mr. Hammack is at fault for failing to probate the Last Will 

and Testament of his wife, Willie Sue Hammack, within four years after her death.

In the situation we have at hand, Mr. Hammack did not consult an attorney, did not 

consult any beauty shop, barber shop, or domino hall lawyers, or apparently by his testimony the 

advice of anyone else, relating to the probate of the Last Will and Testament. We do not know 

what he assumed. It should be pointed out that Mr. Hammack did not appear in Court to be 

questioned on this matter.

Mr. Morrison Hammack, Jr., filed for probate the Last Will and Testament of Willie Sue 

Hammack, his wife, on July 17, 2014, even though the said Willie Sue Hammack had passed 

away of July 2, 2006, in Nacogdoches County, Texas. Mr. Hammack, by way of deposition, gave 

evidence that he didn’t discuss the passage of the property under the will with anyone, (RR-16, 

17, 30), and that he didn’t know to probate said last will and testament, (RR-15). Mr. Hammack 

stated that he understood that property passes on death, (RR-16), to someone by the terms of the 
7

will, and that he knew about the will at the time of her death, (RR-11, 17). Mr. Hammack further 

stated that he didn’t discuss the need to probate the will, (RR-18), with anyone, shortly after her 

death, or with an attorney, until approximately one (1) month before the filing of the will for 

probate, (RR-18). Mr. Hammack further testified that he had property transferred out of her 

name before her death, (RR-18), and that the papers were prepared by an attorney. 

Mr. Hammack testified through deposition that he didn’t have the money to file the will 

for probate, (RR-12), but yet he testified that there was money in account in the bank, (RR-20), 

but he didn’t know how much. There was no testimony that there was not sufficient money in the 

account to pay for probate. This evidence begs the question: How did he know what the cost of 

probate might be, unless he consulted someone? It would appear that the testimony on this point, 

from the stand point of Mr. Morrison Hammack, Jr., was misrepresentative of the facts. Mr. 

Hammack further testified that he knew about the property owned by himself and his wife, as 

well as property that she owned as separate property, (RR-26, 27, 29). 

Evelyn Louise Kelly, the daughter of Mr. Morrison Hammack, Jr., was sworn in as a 

witness and testified that in her estimation the estate was in access of $125,000.00 at the date of 

the death of Willie Sue Hammack, (RR-34, 35), and testified further as to those assets, in a 

general since, being land and house, an automobile, and a pick-up truck, (RR-37). She further 

testified that under Power of Attorney that she sold the 1998 Honda Civic Automobile that they 

owned at her death, in April, 2014, for $3,000.00, (RR-38, 39) (RR-Exhibit C-2), this 

information presents the obvious conclusion that the community one-half (1/2) of the Estate of 

Morrison Hammack, Jr., and Willie Sue Hammack was more than sufficient to pay for the 

expenses of administration, which is classified as a second degree claim under Section 355.102 

(2) of the Texas Estates Code.
8

Mr. Terry Marsh was called as a witness and testified that he had observed information at 

the house that Mr. and Mrs. Hammack relating to an account of hers that showed a balance of 

over $36,000.00, (RR-47), and that Mr. Hammack’s account in his name showed a balance in 

access of $20,000.00, (RR-47).

Since these parties were husband and wife, it will be presumed under the law that these 

bank accounts were community property accounts, that the automobile, the truck, and the land 

and house, were all community property, and according to the provision of the Texas Estates 

Code, Section 355.102 (2), the expenses of administration are a second degree priority claim 

against the assets of said Estate. One-half (1/2) of the value of the truck, or One-half (1/2) of the 

value of the automobile (which sold 8 years later for $3,000.00, (RR-38, 39) (RR-Exhibit C-2), 

or half of the funds in the bank, or half of the value of the house and land, would have been more 

than sufficient to pay for the cost of probating said last will and testament. This evidence as 

presented negates the position of Mr. Morrison Hammack, Jr., that he didn’t have money to 

probate the will.

If we review the case of the ESTATE OF EVERETT H. ROTHROCK DECEASED, 312 

S.W.3d 271 (2010), rendered by the Court of Appeals out of Tyler, you will find that the Court of 

Appeals upheld the Trial Court’s order denying the application to probate the will as a Muniment 

of Title. The Trial Court, and the Court of Appeals found that Mr. Jerry E. Rothrock was in 

default for failing to probate his father’s will within the statutory period. Mr. Jerry E. Rothrock 

testified that he made investigations but never talked to anyone else about the property owned by 

Everett H. Rothrock Deceased, at the time of his death. Mr. Jerry Rothrock was also considered 

a very successful lawyer in Washington D.C. (by his own admission) and that half of his practice 

dealt with oil and gas law. He was charged with knowledge that the will should have been 
9

admitted to probate. The Court discussed the standard of review on appeal, and the applicable 

law which is Section 73a of the Texas Probate Code, which is now Section 256.003 of the Texas 

Estates Code hereinbefore quoted. His only testimony was concerning a mistake of fact, and that 

was held to be insufficient.

There are numerous cases cited under the Rothrock case that can be read by the Court, as 

the Court desires. However, the Rothrock case stands for the proposition that a person having 

custody of will is charged with knowledge that it must be filed for probate within the statutory 

time, in order to rely upon it, whether the necessity for doing so is apparent to him or not. The 

Court further discusses that “one purpose of the probate limitations statute is to impose a 

reasonable limit on the time in which the property of a person dying testate should be distributed 

among his legatees, after payment of his debts.” The Court further defines default, as is defined 

in the statute, and the burden of proof upon the person presenting the will for probate after four 

years. The Court further discussed the fact that family agreements not to probate a will about 

which they had knowledge are not sufficient to excuse non-compliance with the four year 

limitation of the probate code in which to seek the probate of a will.

The authorities presented in support of their contentions that had been decided by the 

Courts of this State are as follows:

A. In Re Estate of Campbell, 343 SW3d 889—(Ct. Appls-Amarillo-2011), in which 

the Court sustain the finding of no default, but set forth the principal which is also 

set forth in Schindler, post, that a person having custody of the will is charged

with the knowledge that the will must be filed for probate within the statutory 

time. The evidence in this proceeding shows that Mr. Hammack had custody of 

the will and knew of its contents. 
10

B. Brown V. Byrd, 512 SW2d 753—(Ct. Appls-Tyler-1974), held that neither of the 

granddaughters reliance upon a family agreement regarding the Estate, her 

ignorance of the law, nor the difficulty she would incur in probating the will, 

excused the delay in failing to file the will for probate within four (4) years after

the death of the Deceased. In this case we have a plea of ignorance of the law 

only, which is negated by this case holding. The supposed monetary difficulty 

presented in this case apparently is imaginary only, due to the value of the assets 

of the Estate.

C. In the Estate of Ruby Fowler Cornes, 175 SW3d 491—(Ct. Appls-Beaumont2005), again, an Appellate Court has stated that reliance upon a family oral 

agreement, to spare the feelings a survivor, was not enough to excuse a failure to 

file a will for probate within four (4) years. This case also defines “default” as 

used in the Texas Estates Code, Section 256.003, formerly Section 73 of the 

Texas Probate Code.

D. In the case of Orr V. Walker, 438 SW3d 766—(Ct. Appls-Houston-2014), the 

Court defines “default”, and further states the test for sufficiency of evidence is

any finding that is based upon evidence that would cause reasonable and fairminded people to reach the same verdict, or would reach a contrary verdict. This 

same standard is set forth in Schindler, post.

E. Schindler V. Schindler, 119 SW3d 923—(Ct. Appls-Dallas-2003), presents again 

the standard for review of legal and factual insufficiency of evidence to support a 

Court’s finding that the Applicant of a will file for probate after four (4) years 

after the date of death of the Decedent, was not in default.
11

F. Estate of Cordelia Williams, Deceased, 111 SW3d 259—(Ct. Appls-Texarkana2003), sets forth the standard of review of conclusions of law to the Trial Court, 

in that same are to be reviewed by the Appellate Court de novo. Although there 

are findings of the fact, apparently supporting the conclusion of law adhered to by 

the Trial Court, the Court “cherry-picked” the facts, and refused to make findings 

of fact or conclusions of law as additional findings of fact and conclusions of law 

as requested by Contestants.

I find no cases were the Trial Court has absolutely refused to make findings of fact and 

conclusions of law, by its act of volition, even though the failure to make such findings on time

may have occurred by a negligence or indifference. Therefore, it’s a contention that any 

conclusions of law, made by the Trial Court, should be reviewed de novo, and that no 

presumption should arise by the Courts voluntary refusal to make findings of facts and 

conclusions of law.
12

CONCLUSION

From the evidence presented at trial, a Trial Court should have entered an Order Denying 

the Probate of the Last Will and Testament of Willie Sue Hammack, Deceased, finding that 

Morrison Hammack, Jr., was in default for failing to produce the will for probate within four (4) 

years after the date of the death of said Willie Sue Hammack, Deceased. Ignorance of the law is 

no excuse, as has been set forth in one of the cases sited herein. Further there is ample evidence 

that there were assets of value in the Estate of Willie Sue Hammack, Deceased, that would have 

funded the cost of probate. In addition, it should be pointed out that no testimony was offered by 

the Applicant as to the cost to probate, nor did he ever inquire of the approximate cost to probate 

a last will and testament in a Probate Court. The evidence presented is legally and factually 

insufficient to support the Order of Court, authorizing the probate of said last will and testament. 
13

PRAYER

For the reason stated in this Brief, the Contestant ask the Court to reverse the Trial 

Court’s Order Admitting Will to Probate as a Muniment of Title entered in this proceedings on 

June 25, 2015 (CR 56-57).

Respectfully submitted,

 MINTON & BROWN, PLLC

 Attorneys at Law

 134 N. Marshall Street

 P. O. Box 1688

 Henderson, Texas 75653-1688

 (903) 657-3543

(903) 657-3545 Fax

Email: mintonbrown@suddenlinkmail.com

 

BY: /s/ Robert M. Minton

 ROBERT M. MINTON

 Attorney for Appellant

 Bar Card #14195000

CERTIFICATE OF SERVICE

I certify that on November 25, 2015, a true and correct copy of Appellant's Brief was 

served on Christopher C. Hughes electronically at chughes@fairchildlawfirm.com and the 

electronic transmission was reported as complete.

/s/ Robert M. Minton

ROBERT M. MINTON

E-mail:mintonbrown@suddenlinkmail.com
14

CERTIFICATE OF COMPLIANCE

The undersigned certifies that the Appellant’s Brief, except for the caption, identity of 

parties and counsel, statement regarding oral argument, table of contents, index of authorities, 

statement of the case, statement of issues presented, statement of jurisdiction, statement of 

procedural history, signature, proof of service, certification, certificate of compliance, and 

appendix, as set out in Tex. R. App. P.9.4(i)(1), hereby contains the total of 3,065 words.

Respectfully submitted,

 MINTON & BROWN, PLLC

 Attorneys at Law

 134 N. Marshall Street

 P. O. Box 1688

 Henderson, Texas 75653-1688

 (903) 657-3543

(903) 657-3545 Fax

Email: mintonbrown@suddenlinkmail.com

 

BY: /s/ Robert M. Minton

 ROBERT M. MINTON

 Attorney for Appellant

 Bar Card #14195000