Opinion
No. 04-07-00253-CV
Delivered and Filed: February 13, 2008.
Appealed from the Probate Court No. 2, Bexar County, Texas, Trial Court No. 2004-PC-1200, Honorable Tom Rickhoff, Judge Presiding.
AFFIRMED.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Brent Hardy, the independent administrator of the Estate of Jessie Anna Stange, filed a declaratory judgment action to determine the beneficiaries under Stange's holographic will. The probate court determined that Stange's will created a pet trust for the benefit of her cats, but that the pet trust failed because there were no ascertainable beneficiaries. The court also determined that Leo Hahn, the designated caretaker for the cats, was not a beneficiary under the will because Hahn's health issues prevented him from carrying out the purpose of the trust. The probate court therefore declared that all of Stange's real and personal property passed to the residuary beneficiaries under her will. Hahn appeals, claiming the probate court erred by: (1) concluding Stange's pet trust failed; and (2) excluding testimony from Roberta Ottmers concerning Stange's testamentary intent. We affirm.
Factual and Procedural Background
Stange executed the following holographic will, which was signed and witnessed on April 2, 1999:
Dear Leo Hahn,
Since I have no will, this letter is to express my wishes to have care taken of me, my house (house) all within, at 605 Crestway SATX 78239 my car, and above all the care of my cats, numbering ten, and any more that may come along. I want Leo Hahn to have the use of my car, house et all [sic], and to care for all my cats and any others he may want.
Approx. 500 a month comes from my USAA Inc. fund to take care of my prop. taxes ins at USAA.
Additional income for repairs, cat food supplies and utilities, auto care etc. may come from rent collected for my rent property at 1081 Shades Crest Rd. B'ham Al 35226 — Ron Smith should oversee this for me for Leo Hahn.
Leo Hahn is to care for my cats and may stay in my house for as long as he lives, if I am not there.
Afterward's [sic] my B'ham estate goes to Alabama Adoption Society; and my Texas estate should be set up to help stray cats and dogs in a similar way in San Antonio as the AAA in Alabama.
Money should be carefully gotten from Bank Boxes in B'way bank (1) and Frost Windsor (1) Frost Central Park (4). This shold [sic] form another income fund for expenses.
Half of the income funds goes to the Animal Adoption Agency in Ala, half to animal dogs cats in SA TX.
If necessary, care of my cats take [sic] all priority, Dr. Don Johnson may see that income from the above pays someone to stay in my house if Leo Hahn can not.
[Signed Witnessed]
Stange's will was initially probated on September 16, 2004. Hardy subsequently filed this declaratory judgment action in the probate court to determine the beneficiaries of her estate. A bench trial was held to interpret the pet trust and to determine if any of Stange's beneficiary cats were living and ascertainable.
At trial, Leo Hahn's sister, Roberta Ottmers, testified that she had seen a big black cat, which looked like one of the cats owned by Stange, on the Crestway property (Stange's San Antonio property) in November of 2005. However, Ottmers admitted that she did not know if the cat was Stange's and she also admitted that she had never seen the cat again, despite returning to the property several times. Although Hahn testified about the cats, he was not cross-examined because his competency was in question. Hahn had been in a mental health facility since August 1, 2006, which was more than two months before the first trial setting.
The probate judge noted at the December setting of the bench trial, it was "determined at a previous hearing that [Hahn] needed to be committed. . . ."
After hearing the evidence, the probate court found that the pet trust failed because there was no evidence that a beneficiary cat was alive. In the alternative, the court found that even if a beneficiary cat were living, it had not been identified or located. The court also found that Hahn was not a beneficiary under the will because his health issues rendered him unable to stay in the home and care for any cats. The probate court ordered that Hardy, in his capacity as independent administrator, should use the liquid assets of the estate: (1) to pay past due ad valorem taxes and property insurance for the Crestway property, and (2) to pay Hardy and Hahn's legal expenses. The probate court also ordered Hardy to sell Stange's real and personal property so that the remainder of the estate could be divided: one half to Alabama Animal Adoption Society, one fourth to Animal Defense League of Texas, and one fourth to the San Antonio chapter of the Spay-Neuter Assistance Program.
Standard of Review
Hahn challenges the sufficiency of the evidence to support the trial court's conclusion that no pet beneficiaries existed or were identifiable. Declaratory judgments are reviewed under the same standards as other judgments and decrees. Tex. Civ. Prac. Rem. Code Ann. § 37.010 (Vernon Supp. 2007); Guthery v. Taylor, 112 S.W.3d 715, 720 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Roberts v. Squyres, 4 S.W.3d 485, 488 (Tex.App.-Beaumont 1999, pet. denied). A trial court's findings are reviewed for legal and factual sufficiency by the same standards that are applied in reviewing evidence supporting a jury's answer. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); In re M.W.T., 12 S.W.3d 598, 605 (Tex.App.-San Antonio, 2000, pet. denied).
In reviewing the legal sufficiency of the evidence, we view the evidence in a light favorable to the verdict, crediting all favorable evidence that a reasonable fact-finder could believe and disregarding contrary evidence, except the evidence a reasonable fact-finder could not ignore. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). In reviewing the factual sufficiency of the evidence, we view all evidence in support of, and contrary to, the finding and set the finding aside only if the evidence is so weak, or if the finding is so contrary to the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Pet Trust
Hahn argues that the evidence is legally and factually insufficient to support the probate court's finding that the pet trust failed. The probate court found that the pet trust failed according to two alternative factual findings: (1) there was no living beneficiary cat; or (2) alternatively, no beneficiary cat has been identified or located. The court also determined that Hahn was unable to carry out the purposes of the trust due to his severe health problems and thus he was not a beneficiary under the will. This particular finding is not challenged.
The only evidence presented about a beneficiary cat came from Ottmers. She testified she saw a cat that looked like one of Stange's cats when she went to leave cat food at the Crestway property. Yet, Ottmers also said she had no way of knowing that this was Stange's cat. Therefore, Ottmers's testimony does not prove that a beneficiary cat is living, ascertained, or located. In fact, her testimony supports the finding that none of Stange's cats can be accounted for. Therefore, there was sufficient evidence to support the finding of the probate court, that the pet trust failed because no beneficiary cat was identified or located.
Intent Testimony
Hahn argues in his third point of error that the probate court erroneously excluded Ottmers's testimony regarding Stange's testamentary intent. However, this point of error was not properly preserved for appellate review. To preserve an objection to the exclusion of evidence, the complaining party must ensure the record contains an explanation of the evidence it would have presented. See Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2. If the excluded evidence is not apparent from the context of the record, it must be presented by a timely offer of proof, or by a formal bill of exception. Id. Although the record indicates that Ottmers would have testified about Stange's testamentary intent, no offer of proof or bill of exception was made. Thus there is no indication of what Ottmers would have said about Stange's intent.
We also note an additional ground upon which the probate court properly excluded Ottmers's testimony. It is well settled that extrinsic evidence of a testator's intent should not be heard by a court in the absence of ambiguity in the will. See San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). Because Stange's will makes it clear that the primary purpose of her estate plan is to provide "above all [for] the care of my cats," the will is not ambiguous about the creation of the trust. The probate court properly excluded Ottmers's testimony regarding Stange's testamentary intent.
Conclusion
The declaratory judgment of the trial court is affirmed.