Texas Probate, Estate and Trust Administration
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 5 CONTESTS AND LITIGATION
CHAPTER 47 FIDUCIARY LITIGATION
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 5 CONTESTS AND LITIGATION
CHAPTER 47 FIDUCIARY LITIGATION
3-47 Texas Probate, Estate and Trust Administration § 47.02
§ 47.02 Fraud
A person suing a personal representative for breach of a fiduciary duty may also have a cause of action for common-law fraud.
The elements of a fraud cause of action are
(1) a material misrepresentation
(2) that was false and
(3) that was either known to be false when made or was asserted without knowledge of the truth,
(4) that was intended to be acted on,
(5) that was relied on, and
(6) that caused injury.n1
Although statements of law, statements of opinion, and predictions as to future events are not generally actionable as fraudulent, they may be actionable if made by a personal representative to an estate beneficiary because of the fiduciary nature of the relationship or the representative's possession of superior information.n2 Similarly, although a mere failure to disclose information does not generally amount to fraud,n3 a personal representative's failure to disclose facts will constitute fraud if the facts are among those the representative has a fiduciary duty to disclose.n4
A plaintiff who prevails on a fraud cause of action is entitled to actual damages and may be entitled to exemplary damages. Actual damages are traditionally measured by the ''out-of-pocket'' method (the difference between the value of the thing given and the value of the thing obtained).n5 Special or consequential damages that proximately resulted from the fraud may also be recovered,n6 as may damages for mental anguish.n7 Exemplary damages are recoverable in some cases.n8 For a discussion of the situations that may justify an award of exemplary damages, see § 47.01[4][c].
The statute of limitation for a fraud cause of action is four years.n9
For a full discussion of fraud causes of action, see TEXAS LITIGATION GUIDE, ch. 336, Fraud , and TEXAS TORTS AND REMEDIES, ch. 44, Fraud and Misrepresentation.
Legal Topics:
For related research and practice materials, see the following legal topics:
Estate, Gift & Trust LawProbateProcedures in ProbateGovernmentsLegislationStatutes of LimitationsTime
LimitationsEstate, Gift & Trust LawEstate AdministrationGeneral OverviewTortsBusiness TortsFraud &
MisrepresentationNondisclosureElementsEstate, Gift & Trust LawProbatePersonal RepresentativesClaims By &
Against
FOOTNOTES:
(n1)Footnote 1. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990) , cert. denied , 498 U.S. 1048, 112 L. Ed. 2d 775 (1991) .
(n2)Footnote 2. See Moreau v. Oppenheim, 663 F.2d 1300, 1310 (5th Cir. [Tex.] 1981), cert. denied, 458 U.S.
Page 200 3-47 Texas Probate, Estate and Trust Administration § 47.02 1891 Tex. LEXIS 1161, ***16
1107 (1982) -president of corporation that managed joint venture liable to joint venturers and shareholders based on misrepresentation of law regarding business and corporate powers; Sawyer v. Pierce, 580 S.W.2d 117-126 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)-buyers entitled to rescind sale of trailer park based on sellers' statement that there was room for 30 trailers in park, because sellers knew and failed to mention that county regulations permitted only 15 spaces to be rented on property; Wright v. Carpenter, 579 S.W.2d 575, 580 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)sellers of house liable based on prediction as to how long roof would last, because they had superior knowledge of roof's condition; Squyres v. Christian, 242 S.W.2d 786-790 (Civ. App.-Texarkana 1951, dis.)-accountant liable based on statement of opinion to clients with whom accountant had fiduciary relationship.
(n3)Footnote 3. See Moore & Moore Drilling Company v. White, 14 O.&G.R. 847, 345 S.W.2d 550, 555 (Civ. App.-Dallas 1961, ref. n.r.e.) .
(n4)Footnote 4. See Anderson v. Anderson, 620 S.W.2d 815, 819 (Civ. App.-Tyler 1981, no writ)-granddaughter to whom property was deeded by grandmother and who occupied position of trust and confidence in relationship with grandmother had duty to tell grandmother that representation in deed that granddaughter would take care of grandmother for rest of her life was false; § 47.01[3][c]-fiduciary duty of disclosure.
(n5)Footnote 5. See Sobel v. Jenkins, 15 Tex. Sup. Ct. J. 241, 477 S.W.2d 863, 868 (Tex. 1972) .
(n6)Footnote 6. See Wright v. Carpenter, 579 S.W.2d 575, 578 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
(n7)Footnote 7. Kneip v. Unitedbank-Victoria, 734 S.W.2d 130, 136 (Tex. App.-Corpus Christi 1987, no writ) .
(n8)Footnote 8. See Trenholm v. Ratcliff, 646 S.W.2d 927, 933 (Tex. 1983)-finding of intent to harm or conscious indifference to rights of others sufficient to uphold award of exemplary damages.
(n9)Footnote 9. Williams v. Khalaf, 34 Tex. Sup. Ct. J. 133, 802 S.W.2d 651, 658 (Tex. 1990) ; see C.P.R.C. § 16.004(a)(3)-four-year statute of limitation for action on debt; C.P.R.C. § 16.051-four-year residual statute of limitation.
56 of 100 DOCUMENTS
Texas Probate, Estate and Trust Administration
Copyright 2005, Matthew Bender & Company, Inc., a member of the LexisNexis Group.
PART 4 ADMINISTRATIVE MATTERS
CHAPTER 32 CREDITORS' CLAIMS
B NOTICE TO CREDITORS AND FILING OF CLAIMS
2-32 Texas Probate, Estate and Trust Administration § 32.16
§ 32.16 Exceptions to Claim Requirement
[1] In General
[a] Effect of Exemption on Limitations Period
Probate Code Section 298 requires presentment of claims ''for money,'' which has been held to include all existing debts of an estate.n1 However, it has been held that contingent or unliquidated claims for money, such as those that require the intervention of a jury to ascertain the amount, need not be presented to the representative as a prerequisite to suit on those claims.n2 Even if a claim is specifically exempted from the presentment requirement, the creditor is free to submit it to the representative in authenticated form. However, before doing so, the creditor should be aware that an unnecessary presentment may provide some basis for the representative to argue that the limitations period and authentication requirements of Section 298 and 301 apply to the claim.n3
The question of whether an unnecessary presentment will subject the claimant to the requirement that suit be instituted within 90 days after the representative's rejection of the claim has not been clearly resolved by the courts.n4 Prior to the adoption of the Probate Code, the statute governing suits on rejected claims referred only to ''claims for money.'' Accordingly, it was held that an unnecessary presentment did not bind the claimant to the 90-day limitations period.n5
Under the present wording of Probate Code Section 313, suits must be brought within 90 days following the rejection of a ''claim.''n6 The phrase ''for money'' no longer appears. Although it could be argued that the change in statutory wording obligates any one who presents a claim that is rejected to sue within 90 days, the weight of authority indicates a trend against the imposition of the 90-day limitations period to unnecessary presentments. For example, in Lusk v. Mintz, n7 a creditor holding a vendor's lien on real property filed a claim against the guardian and estate of an incompetent as a preferred debt and lien against the land.n8 Although the claim was rejected and suit was filed after the applicable limitations period,n9 the court of appeals held that since the unnecessary presentation and rejection of a claim does not invoke the limitations provision of Section 313 and since the creditor's claim was based on superior legal title and thus did not need to be presented, compliance with the limitation provision was unnecessary.n10 Similarly, in Ullrich v. Estate of Anderson,n11 a court of appeals held that the 90-day limitations period did not apply to a claim by an accountant against an estate, even though the claim had originally been presented to the estate, because the claim was one to which the procedures for presenting claims did not apply.n12 However, in Andrews v. Aldine Independent School District,n12.1 the school district, held a governmental taxing agency by the appellate court, unnecessarily filed a claim with the dependent representative of an estate (rather than simply seek foreclosure) and, when no action was taken within 30 days by the representative, found its claim barred ninety days thereafter. The court also held that the school district's claims for payment of delinquent ad valorem taxes was a claim for money, not a claim in rem.
Page 202 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
If a claim is one that is not required to be presented, such as an unliquidated claim,n13 a contingent claim,n14 or one against the representative arising after the issuance of letters,n15 it must be established by judgment.n16 The claimant must bring suit against the representative in his or her capacity as representative.n17 The suit must be filed before the applicable statute of limitation has barred its prosecution. However, death tolls the limitations period for 12 months or until qualification of a personal representative of the estate, whichever occurs first.n18
[b] Jurisdiction
If an estate is being administered in, or letters testamentary were issued from, a statutory probate court, the suit must be brought in that court rather than a district court, even though the jurisdiction of the two courts is concurrent.n19 If the probate matter was initiated in a court other than a statutory probate court,n20 the claimant may bring suit in that court regardless of the amount in controversy.n21 However, constitutional county courts and county courts at law, when exercising probate jurisdiction, do not have exclusive jurisdiction over suits to establish claims against the estate; the claimant has a choice of forum and may sue in a district or county-level court, depending on the amount in controversy.n22
If the claimant reduces an unliquidated claim to a judgment for money, the judgment must state that it is to be paid in due course of administration.n23 If judgment is rendered by a court other than the one in which the administration is pending, the court should certify the judgment to the court having probate jurisdiction over the estate.n24 The court that exercises probate jurisdiction over the estate would then be empowered to enforce the judgment,n25 which would include (1) entering the claim on the claim docket;n26(2) classifying the claim;n27 and (3) subject to the availability of funds, ensuring payment by the representative.n28
If a claim is established by judgment against an independent executor or administrator, the judgment creditor may pursue execution of the judgment against the decedent's property held by the representative.n29 However, the representative may enjoin execution if the judgment creditor, due to the insolvency of the estate, would gain an unfair advantage over creditors of the same or higher classification.n30
For a discussion of the effect on probate jurisdiction of a claim other than a ''claim for money,'' see [4], below.
[2] Unliquidated Claims
Claims must be presented only if they are sufficiently fixed and definite as to be susceptible to verification by affidavit.n31 Presentment to the personal representative is not required when the claim against the decedent is for uncertain or unliquidated damages.n32
In light of the requirement that the amount of a claim be fixed with some certainty, several classes of claims have been permitted to be established by suit without prior presentment. For example, tort claims do not require presentment.n33 Likewise, damages resulting from the breach of a contract to devise property do not constitute a ''claim for money'' and need not be presented prior to suit.n34 Also, unliquidated damages claims based on warranties made by the deceased need not be presented under Section 298.n35
The difficulty in applying the rule exempting unliquidated claims from the presentment requirement appears primarily in contract cases. The Texas Supreme Court has held that presentment is required if the claim may be reduced to a definite sum on proper data, as opposed to one in which the jury must determine the amount.n36 In Anderson, the Texas Supreme Court held that a claim for services rendered by a physician pursuant to an express or implied contract was a claim for money that must be presented to the representative. The Texas Supreme Court noted that similar claims, such as a those for attorney's services rendered to the decedent without prior agreement as to the amount and any other claims that may be reduced to a specific sum at the time of presentation, must be presented.n37 On the other hand, the court
Page 203 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
noted that a claim that cannot be verified with a reasonable degree of certainty, such as a mere demand for unliquidated damages, damages for breach of contract, for trespass, or for wrongful levy of attachment, need not be presented prior to suit.n38
Decisions involving claims for personal services rendered to a decedent have reached inconsistent results. Some have held that a claim for the care of a decedent must be presented, regardless of whether or not the person providing the care was a professional.n39 One court held that an attorney's claim based on services rendered during the decedent's lifetime could properly have been presented to the representative.n41-42
If the claim is one that could be brought under Rule 185 of the Texas Rules of Civil Procedure, governing suits on accounts,n43 it would be prudent practice also to comply with the requirements of Probate Code Section 298 by presenting the claim to the personal representative.n44 If the claim is rejected, suit on that rejected claim must be filed within 90 days.n45 If a creditor is able to invoke an alternative theory of recovery, his or her claim will still be deemed one ''for money'' that requires presentment since the primary cause of action fixes the status of the demand.n46
[3] Contingent Claims
When a decedent's liability is contingent on the liability of another person, the person to whom the liability is owed need not present his or her claim pursuant to Probate Code Section 298.n47 This exemption from the presentation requirement was developed in cases involving conditional guarantors who could not be sued without the joinder of the principal obligor.n48 If the claimant were required to proceed to judgment against the primary obligor and then present an unsatisfied judgment to the representative of the guarantor's estate, numerous suits and needless delay would result. Thus, the payee is allowed to proceed against the primary obligor and the representative of a deceased guarantor in a court having subject matter jurisdiction of the obligation without first presenting the claim to the representative.n49 When the primary obligor is insolvent, the exemption does not apply and a creditor must present the claim to the representative and follow the procedures set forth in the Probate Code.n50
Although the decisions exempting contingent claims from the presentation requirement have been based on the fact that the guarantor could not be sued without the joinder of the principal, the joinder statutes provide for exceptions to that general rule.n51 A party who is not primarily liable on an instrument may be sued without joinder of the principal obligor when the principal obligor is (1) notoriously insolvent, (2) dead, (3) not a resident of Texas, (4) outside the reach of ordinary process of law, or (5) resident at a location that is unknown and cannot be ascertained by the use of reasonable diligence.n52
If the decedent executed an absolute and unconditional guaranty of payment, the claim against the estate is not contingent and must be presented to the representative for payment and, if rejected, sued on within 90 days after rejection.n53 The joinder statute applies only if the surety or guarantor is not primarily liable.n54 If the guarantor or surety guarantees payment of the obligation in a manner so as to become an absolute guarantor and thus primarily obligated to pay, the holder of the indebtedness may enforce payment against the guarantor without first proceeding against, joining, or showing an excuse for nonjoinder of the maker.n55
Other types of claims may be deemed contingent and not within the presentment requirement. For example, in one case it was held that a claim for indemnity resulting from a breach of warranty by deed was contingent on the warrantee's eviction by one claiming superior title to the property covered by the deed. Thus, the representative of the warrantor's estate could be joined in suit without prior presentation and rejection of the claim.n56
[4] Claims for Property
Since the statutes governing the presentment of claims against a decedent's estate apply to ''claims for money,'' they are generally deemed inapplicable to causes of action for title to, or interests in, real or personal property.n57 For example,
Page 204 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
the Probate Code presentment requirements do not apply to (1) actions for specific performance of a contract to convey property or (2) actions to impose a resulting trust on realty held for the claimant by the decedent.n58
When a claim for property is made against an estate, a court exercising probate jurisdiction will not be deprived of jurisdiction merely because that claim is not a ''claim for money'' governed by the Probate Code.n59 For example, an assertion that a claimant is the true or beneficial owner of specific property included in the inventory of an estate would fall within the probate court's jurisdiction under Probate Code Section 5A as a matter incident to an estate, as either an action for trial of title to land, an action for trial of the right of property, or a matter relating to the settlement, partition, and distribution of estates.n60
One court of appeals has held that a district court had no jurisdiction to hear a suit for equitable title to real property held by the administrator of a decedent's estate since the claim was not one for money and could not form basis for suit on rejected claim.n61 However, that court of appeals did not discuss concurrent jurisdiction under Probate Code Section 5A.n62
[5] Claims Arising After Issuance of Letters
[a] Types of Claims Exempt From Presentment Requirement
Probate Code Section 317(c) exempts from the presentment requirement of Probate Code Section 298 any claim that accrues after the issuance of letters and that is based on some matter for which the representative of the estate contracted.n63 When a representative contracts for anything necessary to an administration of the estate, he or she does so as an agent for the estate and, in that capacity, the representative is totally free to contract for necessary services.n64 Most claims arising after the issuance of letters are for expenses incurred and contracted for by the estate's representative, such as claims for attorney's and accountant's fees.n65 However, Section 317 has been applied to exempt a claim for rentals collected by the representative from property jointly owned by the claimant and the decedent's estate from the presentment requirement of Section 298.n66
For a general discussion of services contracted for in the course of administration, see Ch. 30, Estate Administration.
[b] Satisfaction of Claims
There are two ways to obtain payment of expenses such as attorney's fees for services rendered to a decedent's estate. First, the attorney may follow the general presentment procedures of the Probate Code.n67 Alternatively, the personal representative may include a request for reimbursement in his or her final account.n68
Ordinarily, the person contracting with a representative may proceed against the estate, against the representative in his or her individual capacity, or both. However, a contractual provision limiting the creditor's recourse to the estate will be given effect.n69 If the creditor elects to proceed against the estate, he or she may follow several different procedures, the selection of which will depend on the representative's opinion of the claim. He or she may treat the claim as an administrative expense in a definite sum and file a verified claim for the amount due. That claim will be acted on by the court in the same manner as other claims against the estate.n70 However, a court's action on an expense claim, unlike other claims, may not be a final judgment.n71 The court may retain the power to review the allowance of the expense during its examination of the representative's final account.n72 Alternatively, the representative may include the claim in the final account and seek approval and authority for payment in the order approving that account.n73 In either event, the representative should not pay the claim until it has been approved by the court or established by judgment.n74
Generally, the representative may proceed directly against the estate for the reimbursement of amounts for which he or she contracts.n75 Moreover, if a contract for services does not limit the creditor's right of recovery to the estate, the claimant may proceed against the representative individually.n76 A representative against whom a creditor obtains a
Page 205 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
judgment individually may seek reimbursement for the judgment as an expense of administration under Probate Code Sections 242-244.n77 However, the amount of the reimbursement will not necessarily be measured by the amount agreed on by the representative and creditor in their contract. The representative may bind the estate only for the cost of reasonable and necessary services.n78 Accordingly, the representative may be held personally liable for amounts in excess of those seemed to be reasonable and necessary.n79
The claimant may file suit in any court having jurisdiction over the amount in controversy. However, if the matter is pending in a statutory probate court, the claim should be filed in that court.n80
[6] Claims by Personal Representative
Representatives of decedents' estates who are also creditors of the estates are exempt from the presentment requirements of Probate Code Section 298.n81 If a representative is also a creditor, he or she must file a verified claim with the clerk of the court for entry on the claim docket.n82 The representative must file the claim within six months after he or she qualifies as representative or be barred.n83 However, if the representative is a secured creditor, the failure to file the claim within six months after qualifying will result in treatment of the claim as a preferred lien against property rather than as a bar to the claim.n84
After the representative's claim is entered on the claim docket, it will be acted on by the court in the same manner as other claims.n85 Any interested person who is dissatisfied by the order of the court approving or disapproving the representative's claim may seek review of the order by appeal to a court of civil appeals.n86
For a further discussion of claims involving representatives, see § 32.15.
[7] Claims by Heirs
Anyone with a claim against an estate in his or her capacity as an heir, devisee, or legatee of that estate is exempt from the presentment requirements of Probate Code Section 298.n87 Heirs are those persons, including the surviving spouse, who are entitled under the statutes of descent and distribution to the estate of a decedent who dies intestate.n88 A legatee is any person entitled under a will to receive any gift or devise of real or personal property.n89
For a discussion of the manner in which devisees and heirs obtain payment of their claims on estate property, see Ch. 11, Intestate Succession; Ch. 30, Estate Administration; Ch. 31, Collection, Management, and Distribution of Assets; and Ch. 40, Will Construction.
[8] Set-Off for Financial Institution
A financial institution in which the decedent has deposits at the time of death and to which the decedent owes money is not required to present its claim to the personal representative. Rather, the institution can simply set off its claim against the money in the decedent's accounts. This is true regardless of whether the institution's claim is mature or whether the estate is solvent.n90
Legal Topics:
For related research and practice materials, see the following legal topics: Estate, Gift & Trust LawEstate AdministrationClaims Against EstatesNotice to CreditorsEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesPriority of ClaimsEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesGeneral OverviewEstate, Gift & Trust LawEstate AdministrationClaims Against EstatesTime LimitationsEstate, Gift & Trust LawProbatePersonal RepresentativesClaims By & Against
FOOTNOTES:
Page 206 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
(n1)Footnote 1. See Prob. C. § 298; Anderson v. First Nat. Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769 (1931) . (n2)Footnote 2. Allen v. Denk, 87 S.W.2d 303, 307 (Civ. App.-Austin 1935, no writ) ; see Cross v. Old Republic
Surety Co., 983 S.W.2d 771 (Tex. App.-San Antonio 1998, no pet. h.) ; [2], [3], below.
(n3)Footnote 3. See Prob. C. §§ 298, 301.
(n4)Footnote 4. See, e.g., Pirkle v. Cassity, 104 F. Supp. 318, 321 (E.D. Tex. 1952)-unnecessary presentation to foreign executor was nullity and did not trigger 90-day statute of limitation for suit on rejected claims; Wilder v. Mossler, 583 S.W.2d 664, 667 (Civ. App.-Houston [1st Dist.] 1979, no writ)-though presentment by tort claimant was unnecessary, joining administrator as party to suit within 90 days after administrator's rejection of tort claim was held sufficient to preserve claim, if necessary that claimant do so.
(n5)Footnote 5. See Goldman v. Ramsay, 62 S.W.2d 176, 178 (Civ. App.-Texarkana 1933, dis.) .
(n6)Footnote 6. Prob. C. § 313; Edwards v. Estate of Jones, 1998 Tex. App. LEXIS 6533 (Tex. App.-Dallas 1998) , rev'd and remanded, 1999 Tex. App. LEXIS 1418 (Tex. App.-Dallas 1999) ; In re Estate of Ayala, 19 S.W.3d 477 (Tex. App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute
suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely.
(n7)Footnote 7. 625 S.W.2d 774, 775-776 (Tex. App.-Houston [14th Dist.] 1981, no writ) .
(n8)Footnote 8. See Prob. C. § 306; see also §§ 32.13[1][b], 32.52.
(n9)Footnote 9. See Prob. C. § 313.
(n10)Footnote 10. Lusk v. Mintz, 625 S.W.2d 774, 775-776 (Tex. App.-Houston [14th Dist.] 1981, no writ) .
(n11)Footnote 11. 740 S.W.2d 481, 485-486 (Tex. App.-Houston [1st Dist.] 1987, no writ) .
(n12)Footnote 12. 740 S.W.2d at 485-486 ; see also In reEstate of Glenn, 2001 Tex. App. LEXIS 2637 (Tex. App.-Corpus Christi [13th Dist.] 2001, petition for review denied July 26, 2001)(unpublished opinion)-Section 313 of the Texas Probate Code (requiring a claimant to file suit within ninety days of the rejection of his claim) does not apply to an independent executor.
(n13)Footnote 12.1. 116 S.W.3d 407 (Tex. App.-Houston [14th Dist.] 2003, pet. denied) .
(n14)Footnote 13. See [2], below.
(n15)Footnote 14. See [3], below.
(n16)Footnote 15. See [5], below.
(n17)Footnote 16. Dumitrov v. Hitt, 601 S.W.2d 472, 473 (Civ. App.-Houston [14th Dist.] 1980, ref. n.r.e.)-court's
order on claim has effect of full and final judgment.
(n18)Footnote 17. See Price v. Estate of Anderson, 18 Tex. Sup. Ct. J. 322, 522 S.W.2d 690, 691 (Tex. 1975) .
(n19)Footnote 18. See C.P.R.C. Art. 16.062.
(n20)Footnote 19. Prob. C. § 5A(b); Beall v. Cooke, 2001 Tex. App. LEXIS 4141 (Tex. App.-Houston [1st Dist.] 2001, no pet. h.) (not designated for publication)-District court in a county also containing statutory probate courts properly denied appellant's motion to appoint a temporary administrator of her husband's estate because the court lacked jurisdiction over probate matters under section 5 of the Texas Probate Code; but see McPherson v. Judge, 592 S.W.2d
Page 207 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
406, 409 n. 4 (Civ. App.-Amarillo 1979, no writ)-noting argument that deprivation of district court's jurisdiction may violate Texas Constitution.
(n21)Footnote 20. See Prob. C. § 3(ii).
(n22)Footnote 21. See English v. Cobb, 593 S.W.2d 674, 675 (Tex. 1979)-allowing representative's suit in county court at law in which estate pending, even though suit was for recovery of money in excess of that court's jurisdictional limit.
(n23)Footnote 22. See Prob. C. § 5A(a); see also McPherson v. Judge, 592 S.W.2d 406, 409-410 (Civ. App.-Amarillo 1979, no writ) .
(n24)Footnote 23. T.R.C.P. 313.
(n25)Footnote 24. See T.R.C.P. 313; see also Baten v. Thornhill, 145 S.W.2d 608, 610 (Civ. App.-Beaumont 1940, ref.)-certifying judgment as to any deficit on indebtedness guaranteed by decedent.
(n26)Footnote 25. T.R.C.P. 313.
(n27)Footnote 26. See Prob. C. § 14; see also § 32.31.
(n28)Footnote 27. See Prob. C. § 322; see also § 32.41[1][b].
(n29)Footnote 28. See Prob. C. § 320; see also Manning v. Mayes, 79 Tex. 653, 15 S.W. 638, 638 (1891)judgment for costs certified to county court for classification; § 32.43.
(n30)Footnote 29. Prob. C. § 147; T.R.C.P. 313.
(n31)Footnote 30. See Farmers' & Merchants' Nat'l Bank v. Bell, 71 S.W. 570, 572 (Civ. App. 1902, ref.) .
(n32)Footnote 31. See Prob. C. § 298; Hume v. Perry, 136 S.W. 594, 596 (Civ. App. 1911, dis.)-presentment not required when decedent was co-guarantor with surviving spouse on series of promissory notes that were due in seven installments and as to which primary obligor had defaulted; see also Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769-770 (1931)-presentment required of claim for cost of medical services.
(n33)Footnote 32. Connelly v. Paul, 731 S.W.2d 657, 660 (Tex. App.-Houston [1st Dist.] 1987, ref. n.r.e.)-no presentment requirement if damages become liquidated only after suit has been filed; see Cross v. Old Republic Surety Co., 983 S.W.2d 771 (Tex. App.-San Antonio 1998, no pet. h.) .
(n34)Footnote 33. Allen v. Denk, 87 S.W.2d 303, 307 (Civ. App.-Austin 1935, no writ) ; Wilder v. Mossler, 583 S.W.2d 664, 667 (Civ. App.-Houston [1st Dist.] 1979, no writ) .
(n35)Footnote 34. See Moore v. Rice, 80 S.W.2d 451, 452 (Civ. App.-Eastland 1935) , dis. 110 S.W.2d 973 ).
(n36)Footnote 35. Donaldson v. Taylor, 713 S.W.2d 716, 718 (Tex. App.-Beaumont 1986, no writ) .
(n37)Footnote 36. Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769-770 (1931) .
(n38)Footnote 37. 38 S.W.2d at 770 .
(n39)Footnote 38. 38 S.W.2d at 770 .
(n40)Footnote 39. See, e.g., Poole v. Rutherford, 199 S.W.2d 665, 667 (Civ. App.-Fort Worth 1947, ref. n.r.e.)daughter of decedent required to present claim for services rendered in caring for deceased mother; Jaye v. Wheat, 130
Page 208 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
S.W.2d 1081, 1084 (Civ. App.-Eastland 1939, no writ)-in action against siblings, daughter of decedent required to allege facts showing presentment of claim for care services rendered during decedent's life.
(n41)Footnote 41-42. [Reserved].
(n42)Footnote 43. See T.R.C.P. 185; see also § 32.12C.
(n43)Footnote 44. See Prob. C. § 298(a).
(n44)Footnote 45. See Prob. C. § 313; In re Estate of Ayala, 19 S.W.3d 477 (Tex. App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely; see also § 32.33.
(n45)Footnote 46. Anderson v. First Nat'l Bank of El Paso, 120 Tex. 313, 38 S.W.2d 768, 769 (1931)-quantum meruit theory of recovery asserted in alternative did not relieve creditor from presentment requirement.
(n46)Footnote 47. Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) ; see Prob. C. §
298. (n47)Footnote 48. See, e.g., Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) ; Johnson v. First Mortg. Loan Co. of San Angelo, 135 S.W.2d 806, 808-811 (Civ. App.-Austin 1939, no writ) ; Hume v.
Perry, 136 S.W. 594, 597-599 (Civ. App. 1911, dis.) .
(n48)Footnote 49. Baten v. Thornhill, 145 S.W.2d 608, 610-611 (Civ. App.-Beaumont 1940, ref.) .
(n49)Footnote 50. Jones v. Wynne, 133 Tex. 436, 129 S.W.2d 279, 285 (Comm. App., Section B 1939, opinion
adopted) .
(n50)Footnote 51. See C.P.R.C. § 17.001; T.R.C.P. 31.
(n51)Footnote 52. C.P.R.C. § 17.001; see TEXAS LITIGATION GUIDE, ch. 80, Joinder of Third Parties .
(n52)Footnote 53. See Prob. C. § 323; see also Prob. C. § 313; In re Estate of Ayala, 19 S.W.3d 477 (Tex.
App.-Corpus Christi [13th Dist.] 2000, n.w.h.)-Section 313 of the Texas Probate Code (requiring claimant to institute suit on rejected claim within 90 days of such rejection) does not bar claim that was filed prematurely.
(n53)Footnote 54. C.P.R.C. § 17.001; T.R.C.P. 31.
(n54)Footnote 55. Ferguson v. McCarrell, 582 S.W.2d 539, 542 (Civ. App.-Austin 1979) , ref. n.r.e. 588 S.W.2d 895 (1979) ; see National Guaranty Loan & Trust Co. v. Fly, 29 Tex. Civ. App. 533, 69 S.W. 231, 232 (Civ. App. 1902, no writ) .
(n55)Footnote 56. See Moses v. Chapman, 280 S.W. 911, 914 (Civ. App. 1926, no writ) . (n56)Footnote 57. See Prob. C. § 298(a); but see Prob. C. § 306-secured claimant required to present claims as either matured secured claims or preferred liens against specific property; see also § 32.13. (n57)Footnote 58. See Whitehead v. Teague, 483 S.W.2d 378, 379-380 (Civ. App.-Tyler 1972, no writ) ; cf. Hays
v. Nabours, 193 S.W.2d 893, 895-896 (Civ. App.-Eastland 1946, ref. n.r.e.) . (n58)Footnote 59. See Prob. C. § 298. (n59)Footnote 60. Prob. C. § 5A; see English v. Cobb, 593 S.W.2d 674, 675-676 (Tex. 1979)-determination of
decedent's right to probate assets falls within scope of being action incident to estate so that county court at law had
Page 209 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
jurisdiction to determine ownership of bank account in excess of its jurisdictional limit.
(n60)Footnote 61. Whitehead v. Teague, 483 S.W.2d 378, 379-380 (Civ. App.-Tyler 1972, no writ) .
(n61)Footnote 62. See Prob. C. § 5A.
(n62)Footnote 63. Prob. C. § 317; see Prob. C. § 298.
(n63)Footnote 64. Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669 (Civ. App.-Corpus Christi 1979,
ref. n.r.e.)-accountant's services and fees held reasonable and necessary. (n64)Footnote 65. See, e.g., El Paso Nat. Bank v. Leeper, 538 S.W.2d 803, 806-807 (Civ. App.-El Paso 1976, ref.
n.r.e.) ; Kitchens v. Culhane, 398 S.W.2d 165, 166 (Civ. App.-San Antonio 1965, ref. n.r.e.) .
(n65)Footnote 66. See Hunter v. Cook, 375 S.W.2d 574, 576 (Civ. App.-Houston 1964, dis.) .
(n66)Footnote 67. Prob. C. § 294 et seq.; Weathersby v. Makris, No. 01-98-00145-CV, 1998 Tex. App. LEXIS 7452 (Tex. App.-Houston [1st Dist.] 1998 no pet. h.)-attorney for the estate making a request for payment from the estate under Section 242 of the Texas Probate Codeis not required to make a demand against the personal representative first before filing the claim with the court.
(n67)Footnote 68. Dumitrov. v. Hitt, 601 S.W.2d 472, 473 (Civ. App.-Houston [14th Dist.] 1980, ref. n.r.e.) ; see Armstrong v. Stallworth, 613 S.W.2d 1, 2-3 (Civ. App.-El Paso 1979, no writ)-attorney's fees are representative's expenses of administration.
(n68)Footnote 69. See Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669-670 (Civ. App.-Corpus Christi 1979, ref. n.r.e.)-unless otherwise stipulated, it is assumed that personal representative in contracting with third party for professional services did so in his or her individual capacity.
(n69)Footnote 70. Prob. C. § 244; see § 32.40.
(n70)Footnote 71. See Prob. C. § 312(d); Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219, 220 (1889) .
(n71)Footnote 72. See Richardson v. Kennedy, 74 Tex. 507, 12 S.W. 219, 220 (1889) .
(n72)Footnote 73. See Thomas' Estate v. Fullen, 172 S.W.2d 118, 119 (Civ. App.-Beaumont 1943, ref. w.o.m.) .
(n73)Footnote 74. Prob. C. § 319; see § 32.40-approval required before payment.
(n74)Footnote 75. See Prob. C. § 317(c); see also El Paso Nat. Bank v. Leeper, 538 S.W.2d 803, 806-807 (Civ.
App.-El Paso 1976, ref. n.r.e.)-attorney's submission of unverified statement for services with clerk of court held sufficient to support allowance of fees.
(n75)Footnote 76. See Kitchens v. Culhane, 398 S.W.2d 165, 166 (Civ. App.-San Antonio 1965, ref. n.r.e.) .
(n76)Footnote 77. Prob. C. §§ 242-244. Note that under § 244 expense charges should be made in writing, showing each item of expense, date of expense, and must be verified by affidavit and entered on claim docket; see Ch. 31, Collection, Management, and Distribution of Assets.
(n77)Footnote 78. See Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
(n78)Footnote 79. Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664, 669-670 (Civ. App.-Corpus Christi 1979, ref. n.r.e.) .
Page 210 2-32 Texas Probate, Estate and Trust Administration § 32.16 1891 Tex. LEXIS 1161, ***16
(n79)Footnote 80. See Prob. C. § 5A(b).
(n80)Footnote 81. Prob. C. § 317(a); see Prob. C. § 298.
(n81)Footnote 82. Prob. C. § 317(a).
(n82)Footnote 83. Prob. C. § 317(a).
(n83)Footnote 84. See Prob. C. § 306(b); see also § 32.13.
(n84)Footnote 85. Prob. C. §§ 312, 317(b); see § 32.40.
(n85)Footnote 86. Prob. C. §§ 312(e), 317(b); see Ch. 62, Appeals of Probate Proceedings.
(n86)Footnote 87. Prob. C. § 317(c); see Prob. C. § 298; but see Furr v. Young, 578 S.W.2d 532, 536 (Civ.
App.-Fort Worth 1979, no writ)-claim by heir for value of property wrongfully conveyed by representative held to have been barred and to have required presentment.
(n87)Footnote 88. Prob. C. § 3(o); see Ch. 11, Intestate Succession.
(n88)Footnote 89. Prob. C. § 3(s); see also Prob. C. § 3(h), (i)-term ''devisee'' includes legatees.
(n89)Footnote 90. Bandy v. First State Bank, Overton, Tex., 35 Tex. Sup. Ct. J. 843, 835 S.W.2d 609, 617-622 (Tex. 1992) .
Posts
