Opinion
No. 14-03-00715-CV
Memorandum Opinion filed September 21, 2004.
On Appeal from the Probate Court No. 2, Harris County, Texas, Trial Court Cause No. 335,669.
Reversed and Remanded.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.
MEMORANDUM OPINION
Appellant Edward R. Kowalski, Jr. ("Kowalski") appeals from an order admitting his father's will to probate as a muniment of title. Appellee Teri-Ellin K. Finley ("Finley") is appellant's sister and an heir of the testator, Edward R. Kowalski, Sr. Appellant contends the trial court erred by admitting the will in violation of statutory requirements. Specifically, he claims (1) he did not receive statutory notice in violation of his due process rights, and (2) Finley failed to prove that she was not in default in failing to probate the will during the four-year period after death. We reverse and remand
I. FACTUAL AND PROCEDURAL BACKGROUND
Edward Kowalski, Sr. died on May 8, 1998, survived by his two adult children, Edward Kowalski, Jr. and Teri-Ellin Finley. On December 20, 2002, more than four years after her father's death, Finley filed an application to probate her father's will as a muniment of title. The devisee under the will, referred to as a "pour-over will," is The Edward R. Kowalski, Sr. Revocable Living Trust.
"Probating a will as a muniment of title provides a means to probate a will quickly and cost-efficiently when there is no need for administration of the estate." In re Estate of Kurtz, 54 S.W.3d 353, 355 (Tex.App.-Waco 2001, no pet.). One of the purposes of this limited form of probate is to provide continuity in the chain of title to real property owned by the estate by recording the will in the public record. Id.
On March 18, 2003, the probate court held a hearing on Finley's application. In her sworn proof of death and other facts submitted to the probate court, Finley asserted she served notice on Kowalski by mailing a copy of the application, along with a waiver, by regular mail and certified mail, with return receipt requested. She stated the certified mail was returned unclaimed. Finley further averred that she was not in default for failing to probate the will within four years of her father's death because she was not aware that real property was titled in her father's name instead of in the name of his revocable trust. After consideration of Finley's sworn proof, the court found that Finley was not in default for failing to probate the will within four years of her father's death and that notice and citation had been given in the manner and for the length of time required by law. See TEX. PROB. CODE § 89B(a)(3) (Vernon 2003). The court then signed an order on March 18, 2003, admitting the will to probate as a muniment of title. See TEX. PROB. CODE § 89C(a) (Vernon 2003).
When a will is offered for probate more than four years after death, the applicant may not be in default. TEX. PROB. CODE ANN. § 73(a) (Vernon 2003). The term "default" as used in connection with offering a will for probate means the absence of reasonable diligence on the part of the party offering the instrument. Chovanec v. Chovanec, 881 S.W.2d 135, 137 (Tex.App.-Houston [1st Dist.] 1994, no writ).
On April 17, 2003, Kowalski filed a motion for new trial asserting he did not receive legal notice and challenging the proof that Finely was not in default. The motion was overruled by operation of law, and this appeal followed. See TEX. PROB. CODE ANN. § 5(g) (Vernon 2003); Huston v. F.D.I.C., 800 S.W.2d 845, 848 (Tex. 1990) (holding probate order is appealable if it finally adjudicates a substantial right).
II. PROPER NOTICE
In Kowalski's first issue, he contends the trial court violated his due process rights because he was not given proper notice of the application pursuant to Texas Probate Code section 128B, which requires service of process when a will is probated more than four years after death. See TEX. PROB. CODE ANN. § 128B (Vernon 2003). The legislature added section 128B to the Probate Code in 1999. Act of June 18, 1999, 76th Leg., R.S., ch. 855, § 2, 1999 Tex. Gen. Laws 3527. The change in the law applies only to the estate of a person who dies on or after September 1, 1999, the effective date of the act. Id. § 13. An estate of a person who dies before September 1, 1999, is governed by the law in effect on the date of death, and the former law is continued in effect for that purpose. Id. In this case, the date of death was May 8, 1998, before the effective date of the act. Accordingly, the former law applies.
Section 128B(a) requires an applicant for the probate of a will to give notice by service of process to each of the testator's heirs before probate of the will. TEX. PROB. CODE ANN. § 128B(a) (Vernon 2003). The notice must contain a statement that:
(1) the testator's property will pass to the testator's heirs if the will is not admitted to probate; and
(2) the person offering the testator's will for probate may not be in default for failing to present the will for probate during the four-year period immediately following the testator's death.
TEX. PROB. CODE ANN. § 128B(c) (Vernon 2003).
We are to construe briefing rules liberally. See TEX. R. APP. P. 38.9 (stating substantial compliance is sufficient); TEX. R. APP. P. 38.1(e) (stating issues will be treated as covering every subsidiary question that is fairly included). Therefore, even though Kowalski asserts in his brief that the incorrect statute applies, his issue is sufficient to include the alleged error in the notice pursuant to the applicable statute. See Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990) (applying liberal construction to point asserting incorrect statute of limitations).
Section 128 of the Probate Code is the general statute governing the notice required when applying to probate a will, and this section governed an application to probate a will more than four years after death before the enactment of section 128B. See, e.g., Estate of Ross, 672 S.W.2d 315 (Tex.App.-Eastland 1984, writ ref'd n.r.e.). Section 128 provides that citation to all interested parties is served by publicly posting the citation. Because probate proceedings are actions in rem, personal service is not necessary when citation has been posted in accordance with section 128(a). See Soto v. Ledezma, 529 S.W.2d 847, 850 (Tex.Civ.App. 1975, no writ) (holding posting notice was sufficient); Neill v. Yett, 746 S.W.2d 32, 34 (Tex.App.-Austin 1988, writ denied) (same).
Section 128 states that when an application for the probate of a written will produced in court is filed with the clerk, the clerk shall issue a citation to all parties interested in the estate, the citation shall be served by posting, and it shall state:
(1) That such application has been filed, and the nature of it.
(2) The name of the deceased and of the applicant.
(3) The time when such application will be acted upon.
(4) That all persons interested in the estate should appear at the time named therein and contest said application, should they desire to do so.
TEX. PROB. CODE ANN. § 128(a) (Vernon 2003).
Section 33(f)(2) of the Probate Code explains the procedures for service by posting in relevant part as follows:
When citation or notice is required to be posted, it shall be posted by the sheriff or constable at the courthouse door of the county where the proceedings are pending, or at the place in or near the courthouse where public notices are customarily posted, for not less than ten (10) days before the return day thereof, exclusive of the date of posting. The clerk shall deliver the original and a copy of such citation or notice to the sheriff or any constable of the proper county, who shall post said copy as herein prescribed and return the original to the clerk, stating in a written return thereon the time when and the place where he posted such copy.
TEX. PROB. CODE ANN. § 33(f)(2) (Vernon 2003).
Whenever an applicant seeks to probate a will as a muniment of title, the applicant must prove to the satisfaction of the court that citation has been served and returned in the manner and for the length of time required by the Texas Probate Code. TEX. PROB. CODE ANN. § 89B(a)(3) (Vernon 2003). Although the court recited in its order that "notice and citation have been given in the manner and for the length of time required by law," the record is devoid of proof that citation was issued to Kowalski and posted as required by statute. See TEX. PROB. CODE ANN. § 128 (Vernon 2003). There was no testimony recorded at the hearing on the application to probate the will. The only evidence was contained in Finley's sworn proof of death and other facts, in which she stated she provided notice by mail. There is no citation or return in the record on file with this court. Without proper service of citation, no application for probate of a will may be acted upon. Marrs v. Marquis, 927 S.W.2d 304, 306 (Tex.App.-El Paso 1996, no writ); Watson v. Dingler, 831 S.W.2d 834, 839 (Tex.App.-Houston [14th Dist.] 1992, writ denied).
Jurisdictional recitals in a judgment are accorded absolute protection against a collateral attack, but not against a direct attack, as here. See Akers v. Simpson, 445 S.W.2d 957 (Tex. 1969).
Accordingly, Kowalski's first issue is sustained. Because resolution of this issue requires reversal, we need not discuss Kowalski's second issue.
III. CONCLUSION
The record before this court does not establish that citation issued and was served by posting as required by statute. Therefore, we must reverse the order admitting the will to probate as a muniment of title and remand the cause to the trial court for further proceedings.