Teresa Louise Goodman v. Courtney Goodman--Appeal from 66th District Court of Hill County

Annotate this Case

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-028-CV

No. 10-96-029-CV

No. 10-96-030-CV

 

TERESA LOUISE GOODMAN,

 

Appellant

v.

 

COURTNEY GOODMAN,

 

Appellee

 

From the 66th District Court

Hill County, Texas

Trial Court Nos. 33972A, 33972B & 33972C

 

O P I N I O N

 

Jimmy Goodman ("Jimmy") died ten days after marrying Teresa Goodman ("Terri"), having known her for less than a month. After his death, disputes arose between Terri and Jimmy's grown children from a prior marriage, Courtney and Kirk Goodman. Courtney made application to be named temporary administratrix. Terri opposed Courtney's motion and applied for a family allowance. Courtney and Kirk filed a Complaint for the Production of Will alleging that Terri had possession of Jimmy's will.

After a hearing, the court ordered Terri to produce Jimmy's will, appointed Courtney as temporary administratrix, and denied Terri a family allowance. Terri appeals from three separate orders of the court: Order Appointing Temporary Administratrix (10-96-028-CV); Order for Production of Will (10-96-029-CV); and Order Denying Family Allowance (10-96-030-CV). The briefs in Cause Numbers 10-96-028-CV and 10-96-029-CV are identical, and Terri states that the appeal in the former is filed "to preclude a finding of waiver or collateral estoppel" in the latter.

BACKGROUND

Jimmy was a fifty-one-year-old automobile mechanic who owned his own shop in Blum. He and his first wife, Elsa, divorced in 1991 after twenty-eight years of marriage. By all accounts, he had a good relationship with their children, Courtney and Kirk. Jimmy also owned approximately forty-eight acres of pasture land on which he and his children raised cattle.

Jimmy married Terri on June 14, 1995, but he died of a massive heart attack around 2 a.m. on Saturday, June 24. The problems between the parties began within hours of his death. Terri and her relatives arrived at Jimmy's shop around 7:30 a.m. She testified that she removed records, files, and other items from the shop for "safekeeping," putting them in the trunk of her cousin's car. Some of Jimmy's friends and relatives also arrived at the shop after Terri, and they testified that Terri took guns as well as files.

Courtney and Kirk, neither of whom live in Blum, arrived Saturday evening. They testified that when they went to their father's shop the next day, records and files were missing. Early Monday morning, Terri attempted to cash a check on Jimmy's bank account, but the bank refused. The evening of the funeral, Terri moved Jimmy's wrecker from the shop. The following morning, Courtney applied for and was appointed temporary administratrix.

the widow

Terri testified that she and Jimmy were in love, that he gave her his pickup as an engagement present, and that she did not find a will among Jimmy's papers. She estimated the value of his estate at $600,000. She testified that she had no separate property and sought a family allowance of $60,000.

the children

The children paint an unflattering portrait of Terri as a much-married woman whose previous husbands and boyfriends had met with untimely deaths. They believe that Jimmy kept a will in his shop filing cabinet leaving them all his property and naming Kirk as executor. They argue that Terri removed the will from the filing cabinet because, without the will, she would be entitled to a portion of the estate under the laws of intestate succession. Tex. Prob. Code Ann. 38 (Vernon 1980). The children attempted to show that Terri had used a series of transactions to protect property from a prior marriage from her creditors.

EVIDENCE

teresa goodman

Terri testified that she had "known of" Jimmy two years before they married. She said that on the night Jimmy proposed, he gave her his 1992 Chevrolet truck as an engagement present because she was driving her son's old El Camino. She said that before his death, Jimmy had given her his "important papers," including health insurance, deeds, bank statements, and cattle records.

Terri stated that, after Jimmy's death, she took paperwork from the shop filing cabinet for safekeeping. However, she denied that she ever had Jimmy's will: "[T]here was absolutely no Will in my possession ever at any point." She testified that Jimmy had told her he had "taken care of everything" and was "drawing up new paperwork." Terri denied taking any guns from the shop.

Terri stated that Jimmy had written a check to her cousin, Kelly Herring, "for taking care of us, the laundry, the food and the rent, or just a gift of love for caring about us and letting us stay there." Terri initially testified that she and Kelly went to the Rio Vista Bank early Monday morning to cash the check and make a deposit. // She later testified // that she "wanted to go for a ride and try to be by myself," so she took the check to the bank for Kelly. The drive-through teller refused to cash the check and asked her to come inside. The bank again refused to cash the check.

Terri testified that she did not own any property and that she is "totally medically disabled" due to fibrotic lung disease which caused the surgical removal of her right lung in 1969. She also testified about her prior marriages and relationships. Her third husband, Hal LaPlace, executed an "Affidavit of Facts" in October 1985 declaring an informal marriage to Terri and giving her an "equal ownership in all existing possessions," including real property at Echo Lake in Henderson County. // Hal executed a power of attorney on January 6, 1987, authorizing Terri to dispose of the property at Echo Lake. // On January 13, Terri used the power of attorney to convey the Echo Lake property to Kimberli Finn, her daughter by a prior marriage. On January 20, Kimberli conveyed the property to Terri as "individual trustee." On March 24, RepublicBank took a judgment against Hal and Terri for almost $21,000. Terri denied that the conveyances had been an effort to avoid creditors.

Terri said that she had not worked since 1969. However, she denied that her husbands had supported her and said that she had supported herself and her three children. She testified that she had received a settlement for the loss of her lung in 1969. // Terri estimated the value of Jimmy's automotive tools at $350,000 and his total estate at almost $600,000. She testified that she needed a family allowance of $60,000.

bank employees

Three Rio Vista Bank employees testified. Barbara Tubbs, a loan secretary and Goodman family friend, testified that she had been at Jimmy's mother's house the Sunday evening after Jimmy's death. Courtney and Kirk asked her to "make the bank aware" of their father's death. When Tubbs arrived at the bank around 7:45 a.m. Monday morning, she saw Jimmy's pickup in the drive-through line. She informed the drive-through teller of Jimmy's death, and Terri was asked to come inside the bank.

Betty Prather, a supervisor of new accounts, testified that she was asked to assist a woman who was trying to cash a check for approximately $600 on Jimmy's account. Prather, who knew of Jimmy's death, pulled the account's signature card. She did not believe that the signature on the check matched the one on the card. After getting a second opinion from Ruth Korb, the head teller, Prather returned the check to the woman, whom she identified as Terri.

Ruth Korb testified that she compared Jimmy's signature on the signature card to that on the check and determined that "it was not the same signature." Korb advised Prather not to cash the check.

Kirk Goodman

Kirk Goodman, Jimmy's thirty-one-year-old son, testified about the existence of his father's will. In late 1992 or early 1993, Kirk and Jimmy were working at the shop when Jimmy said, "Come here, I want to show you something; something I need to tell you." Jimmy pulled a folder containing a will from the second drawer of the filing cabinet. He handed the folder to Kirk, who was "kind of unnerved" and could not look at it. Jimmy explained that Kirk was to be the executor of the will and that he and Courtney were the heirs. Jimmy told Kirk that "in the event of his death," the will would be in the filing cabinet.

Kirk testified that his father's filing cabinet was "full of paperwork from top to bottom" with insurance papers, tax returns, business records, and cattle records. After Jimmy's death, Kirk said the drawers had been "rifled through." "[Q]uite a bit of the information and stuff was missing. Drawers [were] half full and there was one that was completely emptied, and there was one on the bottom that was pretty empty."

jackie kyle

Jackie Kyle, Jimmy's brother-in-law, testified that he had known Jimmy since he was seven years old. Jimmy told Kyle that he had a will, that the will was kept in the filing cabinet, and that it "left his stuff . . . to the children and Kirk would administrate." Kyle had the impression that Jimmy had written the will himself. He said Jimmy first mentioned the will in 1992, and that they discussed it again in 1993 or 1994.

Kyle learned of Jimmy's heart attack around 2 a.m. Saturday morning. He and his wife drove to the hospital, but Jimmy was dead by the time they arrived. Kyle returned home and "got in touch with [Jimmy's] kids." Around 7:30 a.m., Kyle was getting gasoline when he saw Terri and her cousin Kelly drive by in Kelly's car. The car stopped at Jimmy's shop and backed up to the door. Kyle drove to the shop where he saw Terri, Kelly, and a woman named Millie. Terri was in the shop office removing files from the filing cabinet. Kyle saw two guns one of Jimmy's and one of Kirk's in the trunk of the car. Kyle testified, "Well, I just told everybody there that I felt like they ought to wait until the kids got there. The kids were on their way." The women did not stop. Kyle was "upset" and left as Jimmy's mother and sister arrived.

melva scott

Melva Scott, Jimmy's sister, testified that she and her mother saw Terri at the shop around 8 a.m. the morning of Jimmy's death. Terri told Melva that Jimmy had asked her to "go through his records and straighten them out" and that she was looking for the insurance policy for the funeral home.

ray mahan

Ray Mahan, an insurance salesman and auctioneer, testified that he had looked at all of Jimmy's tools and had given Courtney a figure for the estate's inventory, but could not remember the exact figure. He testified that the cattle, if sold to raise cash, were worth approximately $8,300.

travis sanders

Travis Sanders testified that he paid Jimmy $579 in cash around noon on the Friday before his death.

elsa goodman

Elsa Goodman testified that she divorced Jimmy after twenty-eight years of marriage because of his drinking. She stated that they maintained a "very civil" relationship after the divorce and that he was an excellent father. After the divorce, Jimmy told her that he had written a will dividing his property between the children and naming Kirk as executor. She said that he kept it in the shop filing cabinet with his other papers, but that she had never seen it.

Elsa testified that she was a school teacher, that while they were married she made more money than Jimmy did, and that their joint income for 1991 was just under $30,000. She stated that Jimmy's income from the shop was usually $16,000 to $17,000, but that he usually lost $9,000 to $10,000 on the cattle for a net income of $6,000 to $7,000 a year.

doyle higgins

Doyle Higgins, a sheet metal fabricator whose shop was across the street from Jimmy's, testified that he and Jimmy were "like brothers." He spoke with Jimmy almost every day for eighteen years. Higgins said he had made his own will in the 1960's and that he had "needled" Jimmy a dozen times over the years to make a will. After Jimmy's divorce, Higgins told him that "it would behoove him to make a Will out." Jimmy told Higgins "about a year ago" // that he had made a will and had put it in his filing cabinet. Jimmy told him that he had "left everything to the kids" but did not say anything about an executor.

Higgins stated that, after their marriage, Jimmy and Terri had made an offer on a house in Blum. Jimmy was concerned about how they would pay for it. Jimmy told Higgins that Terri "had offered to sell her place, but [Jimmy] didn't want to do that. . .[because] that was hers and her kids."

bill mcalister

Bill McAlister testified that six or seven years ago he had sold Jimmy the forty-eight acres of land for cattle grazing. Jimmy bought the property for $50,000, paying $500 a month. McAlister stated that occasionally Jimmy had gotten behind in his payments, but would catch up. At the time of his death, however, Jimmy was four months behind further than he had ever been.

jim david fox

Jim David Fox testified that he knew Jimmy through his business. He had known Terri since the late 1960's when she and her first husband lived next door to Fox in Grand Prairie. Fox also knew two of Terri's later husbands. He testified that Terri told him she was making pornographic movies and modeling in Houston. Fox learned of Terri's marriage to Jimmy the night before his death, and when he learned of Jimmy's death, called the sheriff's department and Jimmy's mother to suggest that an autopsy be performed. // Fox denied that he was testifying against Terri because she had refused his sexual advances.

courtney goodman

Courtney Goodman, Jimmy's twenty-eight-year-old daughter, testified that her father kept his will in the filing cabinet. She had not seen the will, but her father had told her that it left everything to her and Kirk and that Kirk was the executor.

Courtney first went to Jimmy's shop on the Sunday after his death. She testified that several items were missing: cattle records; insurance and personal papers; "current billings, the people who he had done work for that owed him money"; guns; and his "money sack." On Monday morning, Courtney discovered that Terri had tried to cash a check on her father's account. On Tuesday evening, after the funeral, the wrecker disappeared from the shop. Courtney called friends who helped her board up the shop and move the remaining contents to another location. The following morning, Courtney applied for and was appointed temporary administratrix of her father's estate.

Acting as temporary administratrix, Courtney found that her father had four accounts at Rio Vista Bank. One account was a savings account for his granddaughter Lacey. One account had $13, a savings account had $1,100, and his business account on which Terri had attempted to cash the $600 check had a balance of $683. She testified that there was no deposit reflecting the $580 cash payment Travis Sanders had made to Jimmy the afternoon before his death. Courtney stated that her father's tax returns showed he had made $15,000 in 1991 and 1994 and that he usually lost money on his cattle operation. Courtney estimated the value of Jimmy's entire estate at $61,000.

kelly herring

Kelly Herring testified that she is Terri's second cousin and had lived in Blum for five years. She testified that Terri met Jimmy the last week of May 1995 when Jimmy was working on Kelly's car. Terri drove Kelly to pick up the car at Jimmy's shop, and Terri and Jimmy "hit it off." Kelly said their relationship was "like magic" and that "they were crazy about each other." From their first date on June 2, Jimmy began staying with Terri at Kelly's house. Kelly testified that Jimmy gave Terri his truck during their courtship.

Kelly testified that she, Terri, her sister-in-law, and her brother-in-law went to Jimmy's shop early Saturday morning. When they arrived, there were papers on the floor and "everything looked like it had been ransacked." They loaded files, receipts, and empty gun cases into her car trunk. Kelly stated that two guns belonging to her son and grandson were in the trunk. She stated that Jackie Kyle "may have said" they should wait until Jimmy's children arrived, but they did not wait.

Kelly testified that Terri had a lot at Echo Lake, but she did not know of any other real estate.

ORDER FOR WILL PRODUCTION & ORDER FOR APPOINTMENT

OF TEMPORARY ADMINISTRATRIX

(10-96-028-CV & 10-96-029-CV)

The court made the following findings of fact:

The Court finds that James Arthur Goodman, hereafter referred to as Deceased, had a written will at the time of his death.

The Court finds that Teresa Louise Goodman had possession of the will of James Arthur Goodman and other papers at the time the sworn written complaint of Courtney Goodman and James Kirk Goodman, children of Deceased was filed.

The Court finds that Teresa Louise Goodman has not shown cause why she should not deliver the will of Deceased to the Court for probate or deliver other papers to the Temporary Administratrix.

 

The court made the following conclusion of law:

The Court should order Teresa Louise Goodman to deliver the Will of James Arthur Goodman by November 2, 1995, as the Court is satisfied that she had such papers or will at the time of the filing of the complaint in accordance with Probate Code Section 75, Duty and Liability of Custodian of Will.

points of error

In point one in each of the two appeals, Terri challenges the legal sufficiency of the evidence to support the court's finding that Jimmy had a written will at the time of his death. In reviewing a "no evidence" point, we consider only the evidence and inferences tending to favor the finding, viewed most favorably in support of the finding, and disregard all contrary evidence and inferences. // Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). If there is more than a scintilla of evidence to support the finding, the no-evidence challenge fails. Id.

Kirk testified that his father had a will, that his father handed him the folder with the will, but that he did not read it. Jackie Kyle testified that Jimmy told him he had a will, which Kyle believed Jimmy had written himself. Elsa Goodman testified that Jimmy had told her he had a will. Doyle Higgins testified that he had "needled" Jimmy about making a will and that Jimmy told him "about a year ago" that he had made a will. Kirk, Courtney, Elsa, Kyle, and Higgins testified that (1) Jimmy said the will left his property to Kirk and Courtney and (2) the will was kept in the shop filing cabinet.

Viewing the evidence in the light most favorable to the finding and disregarding evidence and inferences to the contrary, we find there is probative evidence to support the court's finding that a will existed. Id. We overrule points one.

Terri's second point in these appeals challenges the factual sufficiency of the evidence to support the court's finding that Jimmy had a written will at the time of his death. A court's findings of facts are reviewed for factual sufficiency of the evidence under the same legal standards as applied to review jury verdicts for factual sufficiency. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We must weigh all of the evidence, and we overturn the finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

In conducting such a review, we give deference to the court's determination of the witnesses' credibility and the weight to be given their testimony. Slusher v. Streater, 896 S.W.2d 239, 243 (Tex. App. Houston [1st Dist.] 1995, no writ). The court, as the trier of fact regarding conflicting evidence, may believe one witness and disbelieve others, and it may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

Based on all of the evidence in the record, much of which we have recited, we cannot say that the court's determination that Jimmy left a will is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz, 917 S.W.2d at 772. We overrule points two.

Having determined there was sufficient evidence that the will existed, we turn to the question of Terri's possession of it. In points three and four, Terri challenges the legal and factual sufficiency of the evidence to support the court's finding that she had possession of the will at the time the motion to compel production was filed.

We first view the evidence in the light most favorable to the finding and disregard evidence and inferences to the contrary. Browning-Ferris, 865 S.W.2d at 928. Terri does not dispute that she removed paperwork from the shop filing cabinet on the morning of Jimmy's death. Melva Scott saw Terri at the shop around 8 a.m. Terri told her that Jimmy had asked her to "go through his records and straighten them out" and that she was looking for the insurance policy for the funeral home. Jackie Kyle saw Terri going through files from the filing cabinet. Courtney testified that records and personal papers were missing from the shop on Sunday. Kirk testified that his father's filing cabinet had been "full . . . from top to bottom," but that he found the files "rifled through" with drawers either empty or half-empty.

Given the testimony that the will was located in the filing cabinet prior to Jimmy's death and its absence after Terri removed papers from the shop, we find probative evidence to support the court's finding. Id. We overrule point three in each appeal.

Looking at all of the evidence that bears on the question of possession, we next look to whether the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176. Again, we must acknowledge that the court had the discretion to believe one witness over another and to resolve any conflicts in the testimony. McGalliard, 722 S.W.2d at 697. Inferences may support a judgment so long as they are reasonable in light of all of the evidence. Ortiz, 917 S.W.2d at 772.

It is undisputed that Terri removed files from the filing cabinet in which several witnesses testified Jimmy kept his will. However, Terri denied that she had the will, stating that "there was absolutely no Will in my possession ever at any point." Her cousin Kelly testified that they removed files, but stated that the shop had looked "ransacked" when they arrived. This evidence, although contrary to the finding, is not in our view so great as to overwhelm the inference that Terri removed the will from the shop. Thus, we overrule point four in each of the two appeals.

ORDER DENYING FAMILY ALLOWANCE

(No. 10-96-030-CV)

Section 286 of the Probate Code provides:

286 Family Allowance to Surviving Spouses and Minors

(a) Unless an affidavit is filed under Subsection (b) of this section, immediately after the inventory, appraisement, and list of claims have been approved, the court shall fix a family allowance for the support of the surviving spouse and minor children of the deceased.

(b) Before the approval of the inventory, appraisement, and list of claims, a surviving spouse or any person who is authorized to act on behalf of minor children of the deceased may apply to the court to have the court fix the family allowance by filing an application and a verified affidavit describing the amount necessary for the maintenance of the surviving spouse and minor children for one year after the date of the death of the decedent and describing the spouse's separate property and any property that minor children have in their own right. The applicant bears the burden of proof by a preponderance of the evidence at any hearing on the application. The court shall fix a family allowance for the support of the surviving spouse and minor children of the deceased.

Tex. Prob. Code Ann. 286 (Vernon Supp. 1996). Subsection (b) was added in 1993. Prior to that time, a family allowance was contemplated only as provided in subsection (a), i.e., after the inventory, appraisement, and list of claims had been court-approved.

Other sections of the Probate Code also apply. Section 287 states that a family allowance is determined "with regard to the facts or circumstances then existing and those anticipated to exist during the first year" after the death. Id. 287 (Vernon 1980). Section 288 provides that "no such allowance shall be made for the surviving spouse when the survivor has separate property adequate to the survivor's maintenance . . . ." Id. 288 (Vernon 1980).

findings of fact & conclusions of law

The court's order denying Terri's request for a family allowance states:

The court considered the application for family allowance filed by Teresa Louise Goodman. After consideration of facts and circumstances existing and anticipated to exist during the first year after the death of James Arthur Goodman, the Court found that the facts and circumstances to not support the necessity for a family allowance.

The court's applicable findings of fact state:

The Court finds that Teresa Louise Goodman and Deceased were married for ten (10) days and Deceased had no minor children and, after considering her separate property and other evidence, that Applicant did not show by preponderance of the evidence the necessary [sic] for her maintenance.

Teresa Goodman has adequate separate property for her maintenance during the year following James Arthur Goodman's death.

 

The court made the following conclusion of law:

Teresa Louise Goodman's application for family allowance should be denied because she failed to meet her burden of proof by a preponderance of the evidence on her application for family allowance.

points of error

Terri appeals on five points, attacking the court's failure to set a family allowance and its finding that she had adequate separate property for her maintenance. Terri's application for a family allowance states that no inventory had been filed; thus, she bore the burden to prove the necessary facts by a preponderance of the evidence. Id. 286(b).

In points one and three, Terri asserts that she proved "as a matter of law": (a) the amount necessary for her maintenance and (b) that she did not have adequate separate property to maintain herself. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). We will address point three first.

On such "matter-of-law" points, we must first examine the record for evidence that supports the negative finding, while ignoring all evidence to the contrary. See id.; Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982). If we find evidence that supports the negative finding, the inquiry ends; but if we find no evidence to support the finding, then the entire record must be examined to determine if the contrary proposition is established as a matter of law. See Sterner, 767 S.W.2d at 690. If so, the point will be sustained.

Under section 287, Terri had to show "the facts or circumstances then existing and those anticipated to exist during the first year" after Jimmy's death. Tex. Prob. Code Ann. 287. Terri also bore the burden of proving she did not have adequate separate property for her maintenance. Id. 288. Sections 286 and 287 have been construed to mean that "the widow's allowance must be made `with reference to the condition of the whole property [of the deceased's estate] during the first year of [his] death,' and with reference to the widow's necessities `measured by [her] condition in life, and by what [she] had been accustomed to have during the lifetime of the husband.'" Kennedy v. Draper, 575 S.W.2d 627, 629 (Tex. Civ. App. Waco 1978, no writ) (citations omitted). Thus, the court was entitled to consider evidence of the condition of Jimmy's estate and Terri's necessities measured by her condition in life, and by what she had been accustomed to during Jimmy's lifetime. Id. //

Terri's affidavit, attached to her application for family allowance, stated her monthly expenses to be approximately $5,450. She requested a family allowance of $60,000. The evidence viewed in light of the court's negative finding shows the "condition" of Jimmy's estate was that of a man whose net income was $6,000 to $7,000 a year and who was four months behind on his land payments. Terri's "widow's necessities" measured by her "condition in life" and "what she had been accustomed to" during Jimmy's lifetime were limited by the ten-day marriage. There were no minor children. Terri's cousin, Kelly, testified that Terri owned the Echo Lake property. Doyle Higgins testified that Jimmy said that Terri "had offered to sell her place" to finance a home in Blum, but that Jimmy didn't want to do that because that was "hers and her kids."

Given the standard of review under which all evidence contrary to the finding must be disregarded we find some evidence of the existence of separate property adequate for Terri's maintenance. Sterner, 767 S.W.2d at 690. Thus, the court's failure to award Terri a family allowance is supported by legally-sufficient evidence. Id.; Tex. Prob. Code Ann. 288. We overrule point three. Because section 288 precludes a family allowance, we do not reach point one.

In points two and four, Terri asserts the court's determinations are "against the great weight and preponderance of the evidence." Thus, we sustain the court's "failure to find" unless, considering all the evidence, that finding is contrary to the great weight and preponderance of the evidence. Ames v. Ames, 776 S.W.2d 154, 158 (Tex. 1989), cert. denied, 494 U.S. 1080, 110 S. Ct. 1809, 108 L. Ed. 2d 939 (1990). Again, we address point four first.

Terri testified to the life she hoped to have with Jimmy, including buying a house or double-wide trailer. She testified that she had no separate property and that she was "totally disabled." She estimated Jimmy's tools at $350,000 and his total estate at $600,000. She claimed Jimmy's 1992 truck as her separate property because it had been a gift from Jimmy.

Except for Terri's assertions, the evidence was consistent that Jimmy made about $15,000 a year in his mechanic's shop and that he lost money on his cattle operation. He was behind on his land payments. Other evidence shows Jimmy's entire estate to be valued at approximately $60,000. Although Terri denied owning separate property, her cousin believed that she owned property. The deeds to the property and the testimony raise questions about whether creditors were evaded. According to Doyle Higgins, Terri had offered to "sell her place" to finance a home in Blum.

Given these facts, we cannot say that the finding that Terri owned separate property adequate for her maintenance was against the great weight and preponderance of the evidence. Id. We overrule point four. As above, because the finding of adequate separate property precludes a family allowance, we do not reach point two.

In her fifth point, Terri asserts that the court abused its discretion in "totally denying" her application for a family allowance. Because the estate's value is in dispute and inventories had not been filed, the parties went into the hearing "concerned that the Court [might] not have enough information to set a family allowance at this point." Having found sufficient evidence to support the court's failure to award a family allowance, we cannot say that the court acted without any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). We overrule point five.

We affirm the orders of the probate court.

BILL VANCE

Justice

 

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed August 30, 1996

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