In the Estate of Billie Joyce Moore Hogue, Deceased--Appeal from 76th District Court of Morris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00082-CV

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IN THE ESTATE OF BILLIE JOYCE MOORE HOGUE, DECEASED

On Appeal from the 76th Judicial District Court

Morris County, Texas

Trial Court No. 21,929

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

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Judi Scoggins contests the probate of the will of her mother, Billie Joyce Moore Hogue. In her contest, she contends the will was forged. The respondent sought summary judgment, arguing that (1) the will had been probated in 1990, and (2) Scoggins, though writing a letter to the court in 1995 alleging that Hogue's signature was forged, made no effort to pursue that allegation until 2002. In her response to the motion for summary judgment, Scoggins did not address her contention that the will was forged, but instead argued that she had evidence a witness' signature on the self-proving affidavit attached to the will was forged and that, despite her "due diligence," she had only discovered this on March 24, 2002. //

The trial court granted summary judgment to Mildred Hogue based on limitations. // The uncontroverted summary judgment evidence shows the will had been admitted to probate as a muniment of title July 16, 1990, and also contains a copy of a letter sent by Scoggins to the trial court in 1995 in which she stated she thought her mother's signature on the will was forged. The contest was filed October 28, 2002.

When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Limestone Prods. Distribution, Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). On appeal, the movant must show that there is no material fact issue and that the movant is entitled to judgment as a matter of law. Id.

The statute of limitations for filing a will contest is two years to contest the validity of the will after admission to probate or after discovery of forgery or fraud. Tex. Prob. Code Ann. 93 (Vernon 2003). Persons interested in an estate admitted to probate are charged with notice of contents of probate records. The probate of a will gives constructive notice of any of its contents that could be acquired by examining public records, and thus an action based on the contents of the will must be filed within two years after the will's probate. // Mooney v. Harlin, 622 S.W.2d 83 (Tex. 1981); Neill v. Yett, 746 S.W.2d 32, 36 (Tex. App. Austin 1988, writ denied). Thus, the limitations period for such a forgery // claim runs two years after the will was admitted to probate. See Escontrias v. Apodaca, 629 S.W.2d 697, 698 (Tex. 1982). To prevail on a motion for summary judgment against a will contest, the movant must establish, as a matter of law, that (1) the contestant had discovered the will to be a forgery more than two years before bringing suit, or (2) the contestant did not use reasonable diligence in discovering the will to be a forgery, or (3) the will was not forged. Aston v. Lyons, 577 S.W.2d 516, 518 (Tex. Civ. App. Texarkana 1979, no writ). There is no question about the dates involved, or that over two years have run since the date on which the will was admitted to probate.

Further, as pointed out by appellee, although the petition specifies the will was forged, Scoggins' response to the motion for summary judgment argues only that she recently discovered a forgery on the self-proving affidavit. This argument neither addresses the motion for summary judgment nor supports Scoggins' own contention in her petition. If we treat the action as limited to Scoggins' contentions, clearly the statute of limitations has run. If we somehow engraft her summary judgment response onto her petition and treat it as being part of her claim, then we are confronted by the fact that her complaint does not attack the will itself, but instead the self-proving affidavit. Even if the self-proving affidavit were found to be a forgery, that would not invalidate the will, which would still be admissible through other evidence. See Tex. Prob. Code Ann. 59 (Vernon 2003). The self-proving provisions of a will are not part of the will, but concern matters of proof only. Orrell v. Cochran, 695 S.W.2d 552 (Tex. 1985).

Under these circumstances, and in light of the uncontested summary judgment evidence, we conclude the trial court did not err by rendering summary judgment.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 5, 2004

Date Decided: February 11, 2004