James Wojcik, Janette Medlin, Diane Wojcik and Veronica White v. Sophie Wesolick, Independent Administratrix of the Estate of Adam Wojcik, Deceased--Appeal from County Court at Law of Walker County

Reversed and Remanded and Majority and Concurring Opinions filed January 16, 2003

Reversed and Remanded and Majority and Concurring Opinions filed January 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-00-01201-CV

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JAMES WOJCIK, JANETTE MEDLIN, DIANE WOJCIK, AND

VERONICA WHITE, Appellants

V.

SOPHIE WESOLICK, INDEPENDENT ADMINISTRATRIX

OF THE ESTATE OF ADAM WOJCIK, DECEASED, Appellee

On Appeal from the County Court at Law

Walker County, Texas

Trial Court Cause No. 6325

C O N C U R R I N G O P I N I O N

I concur with the majority=s conclusion that devisees of a will need not be served with notice when a will contest is initiated, but for a reason not mentioned in that opinion. Moreover, I respectfully disagree with Chief Justice Brister=s concurring opinion as to the availability of virtual representation in this context.

A. Constructive Notice

In sustaining appellants= second issue, the majority holds that, based on the silence of Probate Code sections 33(a) and 93 as to the need for service of citation in a will contest, the Code does not require the joining of all devisees within two years after a will has been admitted to probate. It is abundantly clear why those provisions of the Code are silent on what would otherwise be a due process issue of notice. The devisees under a will are interested persons as such term is defined in section 3 of the Probate Code. Probate Code section 3(r) defines interested persons to include heirs, devisees, spouses or any others having a property right in, or claim against, the estate being administered. Tex. Prob. Code Ann. ' 3(r) (Vernon Supp. 2003). Section 3(i) provides that the term devisee includes legatee, and section 3(s) defines legatee as including any person entitled to a legacy under a will. Id. That devisees are interested persons within the context of the Probate Code is a critical factor in my conclusion that will contestants need not serve devisees with notice of the will contest.

Persons interested in an estate admitted to probate are charged with notice of the contents of the probate records. Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981). This doctrine of constructive notice creates an irrebuttable presumption of actual notice. Id. Consequently, the devisees, as interested persons under the Wojcik will, are charged with constructive notice of the filing of the contest to the validity of that will, inasmuch as they are charged with constructive notice of the actual knowledge one could gain by an examination of public records. Id. A fortiori, the will contestants had no need to serve notice of the will contest on the Wojcik will devisees, as they were on constructive notice of the filing of same. In my view, the longstanding application of the doctrine of constructive notice to those persons interested in an estate explains the silence in sections 33 and 93 regarding service of citation on the devisees by those initiating a will contest. Accordingly, I agree with the majority=s conclusion that will contestants need not serve other interested persons, but reach that result on a basis not addressed in the majority opinion.

B. Virtual Representation

Chief Justice Brister=s concurring opinion in this trilogy asserts that personal service in the will contest was unnecessary because of the joinder of Wesolick, the devisees= virtual representative. I reject the notion that the doctrine of virtual representation supports the absence of a statutory duty on the will contestants to serve the will devisees. It is undisputed that constructive notice is applicable to persons interested in an estate. Mooney, 622 S.W.2d at 85. However, the law of constructive notice prevents any devisee from relying upon an executor or administrator to defend that person=s interests. Little v. Smith, 943 S.W.2d 414, 525 (Tex. 1997) (Enoch, J., concurring) (citing Jennings v. Srp, 521 S.W.2d 326, 330 (Tex. Civ. App.CCorpus Christi 1975, no writ)). This removal of reliance by devisees on the executor of an estate continues to be recognized and applied. In re Estate of McGarr, 10 S.W.3d 373, 377 (Tex. App.CCorpus Christi 1999, pet. denied).

Virtual representation has not been applied in a probate context other than in Mason v. Mason, 366 S.W.2d 552, 553 (Tex. 1963). Today, it appears the doctrine is relegated to the status of an exception to the general rule for appellate standing that only parties of record may exercise the right of appeal. Gunn v. Cavanaugh, 391 S.W.2d 723, 725 (Tex. 1965). Such exception exists when the appellant is deemed to be a party of record under the doctrine of virtual representation. Motor Vehicle Bd. of Tex. Dept. of Transp. v. El Paso Indep. Auto Dealer s Ass n, Inc., 1 S.W.3d 108, 110 (Tex. 1999). To claim virtual representation, an appellant must show that (1) it is bound by the judgment, (2) its privity of estate, title, or interest appears from the record, and (3) there is an identity of interest between the appellant and a party to the judgment. Id. The supreme court=s decisions in Little and El Paso Independent Auto Dealer s Ass n suggest that virtual representation is no longer useful for purposes of resolving issues not related to appellate standing. In light of the application of constructive notice to persons interested in an estate, the doctrine of virtual representation

is needlessly repetitive and superfluous. Accordingly, I disagree with Chief Justice Brister=s reliance on the doctrine of virtual representation to support the majority=s result.

/s/ John S. Anderson

Justice

Judgment rendered and Majority and Concurring Opinions filed January 16, 2003.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.