A Texas Court of Appeals in the Sixth District affirms a probate court’s order granting possession of estate property to the executrix of the estate over the objections of her sister, who, along with the executrix, was a devisee of half of the decedent’s estate. In the Estate of Bill Wayne Phillips (Tex. App., No. 06-22-00015-CV, July 26, 2022).
The Last Will and Testament of Mr. Billy Wayne Phillips was admitted to probate in August 2021. Mr. Phillips left everything to his two daughters, one of whom was appointed as the executrix of his estate. The non-executrix daughter, Ms. Hudson, lived in a mobile home on land owned by Mr. Phillips. The executrix sought to sell this property to carry out her duties to administer the estate and pay its debts. Ms. Hudson did not wish to sell the property or move. Instead, she wanted to partition the property.
The executrix sought possession and control of the property by filing a turnover motion with the probate court. Ms. Hudson objected on the basis that she was a tenant-in-common living on the property and had rights to the property. She also filed a partition action. The probate court entered an order granting the executrix’s motion. Ms. Hudson subsequently appealed. In the interim, the executrix moved to dismiss the partition suit, and the probate court later entered an order dismissing it. Ms. Hudson did not appeal this second order.
Ms. Hudson’s appeal argued that only judgment creditors could bring a turnover motion to obtain property and that the executrix was not a judgment creditor. She reasoned that because these criteria had not been met, the trial court had abused its discretion.
The appeals court disagrees. The executrix had the right to possess the property under Section 101.003 of the Texas Estates Code and could recover possession pursuant to Section 101.003. The substance of the executrix’s motion demonstrated she sought possession of the property to market and sell it in order to pay any estate debts and for the costs of administration. The court interprets the motion as a request under the foregoing sections and the probate’s court order as granting relief under these statutory provisions. As such, there is no abuse of discretion.
The appeals court also finds the probate did not abuse its discretion because the executrix has a superior right to possession of the property over Ms. Hudson, even though they are both co-devisees of their father’s estate. Although a devisee of a will holds a vested interest in the property on the date of the decedent’s death, this interest is subject to the administration of the estate. The result, in this case, is that the executrix held legal title and a superior right to possess estate property over Ms. Hudson. The probate court’s order facilitates the administration of the estate and is therefore proper.
The court of appeals declines to rule on Ms. Hudson’s portion of the appeal that stated the trial court erred in dismissing her partition suit because it lacks jurisdiction. A final judgment or disposal of the issues in the dismissal suit had not been entered. Furthermore, Ms. Hudson did not file a timely notice of appeal of that order.