In the Estate of Thurman Hutto, Sr., Deceased--Appeal from County Court at Law of Rusk County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00100-CV

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IN THE ESTATE OF THURMAN HUTTO, SR., DECEASED

On Appeal from the County Court at Law

Rusk County, Texas

Trial Court No. 05-019P

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

In 1979, Thurman Hutto, Sr., and wife, Ruth Vincent // Hutto, executed a joint will providing a comprehensive plan for disposition of the assets following their deaths. Shortly after Ruth passed away in 2004, the joint will was admitted to probate. The month after the joint will had been probated, Thurman executed a new will, changing the disposition of the estate. When Thurman passed away in 2005, Charles Ray Hutto, Thurman's brother, introduced the 2004 will for probate. Ruth's daughter, Martha Jo Addington, objected to the probate of Thurman's 2004 will, arguing that the 1979 joint will was contractual. After a hearing, // the trial court overruled Addington's objection and probated the 2004 will.

On appeal, Addington asserts the trial court erred in failing to probate the joint will and erred in admitting the 2004 will to probate without imposing a constructive trust on the estate assets. Hutto argues the trial court properly overruled Addington's objection because Addington failed to plead that the joint will was contractual and because there was no evidence the joint will was contractual. Addington responds that the trial court took judicial notice of the prior proceedings and that the pleadings were sufficient. // Because we hold that the 1979 will was contractual and that a constructive trust should have been imposed, we reverse the judgment of the trial court and remand to the trial court for the imposition of a constructive trust reflecting the terms of the 1979 will.

The sufficiency of the pleadings is judged based on whether they provide the opponent with fair and adequate notice. Roark v. Allen, 633 S.W.2d 804, 809 10 (Tex. 1982); Howell v. Mauzy, 899 S.W.2d 690, 707 (Tex. App. Austin 1994, writ denied). "Fair notice" requires that "an opposing attorney of reasonable competence" can ascertain the nature and basic issues of the controversy. City of Alamo v. Casas, 960 S.W.2d 240, 251 (Tex. App. Corpus Christi 1997, pet. denied). Addington's pleading, while not recommended, provided sufficient notice of the claim to the trial court and the adverse party.

Addington requested, in her objection to probating the 2004 will, that the trial court take judicial notice of Ruth's probate proceedings which probated the joint will. Although copies of the prior probate proceedings were filed with the county clerk in that case, the joint will was never introduced into evidence in this case, and the record does not contain an explicit ruling on whether the trial court took judicial notice. Rule 201(d) of the Texas Rules of Evidence states, "A court shall take judicial notice if requested by a party and supplied with the necessary information." Tex. R. Evid. 201(d); see Office of Pub. Util. Counsel v. Public Util. Comm'n, 878 S.W.2d 598, 600 (Tex. 1994); Surgitek, Inc. v. Adams, 955 S.W.2d 884, 889 n.4 (Tex. App. Corpus Christi 1997, pet. dism'd). While the better practice is either to tender into evidence the prior will and proof of its probate or to obtain an expression from the trial court that it took judicial notice, it is clear from the context of the trial court's comments that it took judicial notice of the 1979 will and its probate. //

A joint will becomes contractual when it is executed pursuant to an agreement between the testators to dispose of their property in a particular manner, each in consideration of the other. Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 168 (1946); In re Estate of Osborne, 111 S.W.3d 218, 220 (Tex. App. Texarkana 2003, pet. dism'd). The primary factor, when determining whether a joint will is contractual, is whether the will, as a whole, provides "a comprehensive plan for disposing of the whole estate of either or both" of the testators. // A joint will has a comprehensive plan of disposition if it "treats the property of both testators as one estate" and also "provides for a disposition of the estate property both at the time of the first testator's death and a disposition of the remainder of the estate on the death of the survivor." Osborne, 111 S.W.3d at 220.

When determining the intent of the testator, a court must ascertain the intent from the "language used within the four corners of the instrument." Odeneal v. Van Horn, 678 S.W.2d 941, 942 (Tex. 1984) (quoting Shriner Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980)). Therefore, when an intent appears on the face of the will, extrinsic evidence is not admissible to contradict that intent. Odeneal, 678 S.W.2d at 942; see Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267 (1961).

When the focus is within the four corners of the 1979 will, as it should be, the contractual nature of the will is clear. Paragraph III of the joint will provides as follows:

After payment of our just debts, it is our will and desire, and will and desire of each of us, that the survivor of us, Thurman Hutto or Ruth Hutto, as the case may be, shall have absolutely all of the estate of every character and description, real, personal or mixed, which either or both of us may own or have any interest in at the time of death of one of us dying first, hereby intended to include both community and separate property, to use, to enjoy, to sell, to lease, to mortgage, or do anything that the survivor may see fit to do with said property, but if at the time of the death of the survivor of us, there be any of said property left, then it is our will and we direct that said property shall pass to and vest in fee simple forever, to the following persons in the following proportions, to-wit:

Thurman Hutto, Jr. - $500.00

Carolyn Hutto Green - $500.00

The rest and residue of our estate shall pass to and vest in fee simple forever to Jimmy Lynn Vinson, Dale Vinson, Gail Vinson Howeth, and Martha Jo McKinley, share and share alike. //

Paragraph IV of the joint will provides an identical distribution of the estate should Thurman and Ruth pass away simultaneously or approximately so.

The joint will treats the property of Thurman and Ruth as a single estate. While Thurman and Ruth's use of the plural pronouns "our," "we," and "us" alone does not establish a contractual will, it is some evidence of an intention of both the testators to treat their property as one estate. The estate is treated as a single unit, and the will specifically provides that the estate includes both community and separate property. In addition, the joint will contains a comprehensive plan to dispose of all property. The above is clear proof that both Thurman and Ruth intended to make a final disposition of their estate on the death of the survivor by providing for the disposition of all remaining property. Courts have held similarly worded wills to be contractual. // Because the intent of the testators is clear on the face of the will, Addington conclusively proved the will was contractual. Therefore, enforcing the terms of the 2004 will, to the detriment of the devisees of the 1979 will, was error.

The appropriate remedy, when the surviving party to a contractual will attempts to circumvent the terms of that will, is to impose a constructive trust on the estate in order to enforce the terms of the contractual will. Osborne, 111 S.W.3d at 223. A joint will can be revoked, but only to the extent the subsequent will does not contradict the terms of the contract. Id. The trial court did not err in admitting the 2004 will to probate. See id. But the trial court should have imposed a constructive trust on the estate in favor of the devisees of the 1979 will to the extent necessary to enforce the contract, that is, the terms of the 1979 will.

For the reasons stated, we reverse the judgment of the trial court and remand for imposition of a constructive trust in favor of the residual devisees of the 1979 will and for any further proceedings consistent with this opinion.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 15, 2006

Date Decided: March 7, 2006