In re Tovar

1

IN THE MATTER OF THE ESTATE OF JOSHUA DANIEL TOVAR, DECEASED.

No. 08-22-00028-CV

Court of Appeals of Texas, Eighth District, El Paso

March 6, 2023

Appeal from the Probate Court Number 1 of El Paso County, Texas (TC# 2021-CPR01440)

Before Rodriguez, C.J., Palafox, and Soto, JJ.

MEMORANDUM OPINION

YVONNE T. RODRIGUEZ, CHIEF JUSTICE

Appellant Carly Zambrano appeals from the trial court's order appointing Appellee Nancy Tovar as administrator of Joshua Daniel Tovar's (Decedent's) estate. Raising four issues, Zambrano argues the trial court erred when it appointed Tovar as administrator of Decedent's estate because Tovar did not have priority over Zambrano. For the reasons set forth below, we affirm the trial court's judgment.

I. BACKGROUND

Decedent a resident of El Paso County, died intestate on July 9, 2021 in San Diego, California. When he passed away, Decedent was unmarried and had a minor child with Zambrano. Decedent was survived by Tovar, his mother; N.J.T., his minor child^[1]; and Zambrano, N.J.T.'s mother.

After Decedent passed away, Tovar filed an application to become independent administrator of Decedent's estate. Zambrano then filed a counter-application to become independent administrator of Decedent's estate. Tovar's application stated that she was Decedent's mother. Zambrano's application stated that she was N.J.T.'s mother. Both applications stated that Decedent died intestate and his sole heir was N.J.T. Each application also stated that the relevant applicant, either Tovar and Zambrano, was an El Paso County resident and not disqualified by law to serve as personal representative of the estate or from accepting letters of independent administration.

The trial court appointed an attorney ad litem to represent the interests of both unknown heirs and heirs suffering from legal disability. The attorney ad litem determined Decedent's sole heir and child was N.J.T. The attorney ad litem also determined N.J.T. was a minor and, therefore, had a legal disability. The trial court found that N.J.T was the sole heir and entitled to all of Decedent's estate. The trial court continued the attorney ad litem's appointment on behalf of N.J.T.

The trial court held a hearing to determine heirship and appoint a personal representative for Decedent's estate.^[2] At the hearing, Tovar testified that she was Decedent's mother, had never been convicted of a felony, and had never declared bankruptcy. Tovar also testified that her intention as administrator of the estate was to collect Decedent's assets and distribute them into a trust for N.J.T.'s benefit. Tovar argued that she was qualified to serve as the administrator and had priority to serve over both Zambrano and a third party under § 304.001 of the Estates Code. While she originally filed for an independent administration, Tovar told the trial court she would also accept a dependent administration.

At the hearing, Zambrano argued she, as mother of the sole heir, had equal priority to Tovar under the law. Zambrano testified her relationship with Tovar and Aaron Tovar (Tovar's husband and Decedent's father) was unhealthy and she did not believe Tovar would be honest with the court or Zambrano concerning the estate.

After listening to the testimony, the trial court granted a dependent administration and appointed Tovar as administrator. Tovar was sworn in as dependent administrator. This appeal followed.

II. DISCUSSION

Although Zambrano raises four issues: (1) whether the trial court erred in its interpretation of Texas Estates Code § 304.001; (2) whether the trial court's findings of fact were supported by legally and factually sufficient evidence; (3) whether the trial court's Findings of Fact Numbers Six and Nine were supported by legally and factually sufficient evidence; and (4) whether the trial court erred in reaching Conclusions of Law Nine through Thirteen and whether there was legally insufficient evidence to support the conclusions. We consolidate Issues Two and Three because of their substantial overlap. Each issue is considered below.

a. Under Texas Estates Code § 304.001, Tovar had priority to serve as personal representative of Decedent's estate.

Zambrano argues the trial court erred in determining Texas Estates Code § 304.001 gives priority to Tovar to serve as personal representative of Decedent's estate. Zambrano argues because N.J.T. is disqualified from serving as personal representative, priority should pass to Zambrano, N.J.T.'s next of kin. For the reasons below, we hold that the trial court did not err in its interpretation of the statute.

i. Standard of review and applicable law

We review a question of statutory construction de novo. El Paso Indep. Sch. Dist. v. Kell, 465 S.W.3d 383, 386 (Tex. App.-El Paso 2015, pet. denied). Our primary object is to give effect to the Legislature's intent by "looking first and foremost at the statutory text[.]" Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511 S.W.3d 181, 184 (Tex. App.-El Paso 2014, no pet.). "The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results." Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).

Section 304.001 of the Texas Estates Code determines the priority of persons qualified to serve as personal representatives to an estate. Tex. Est. Code Ann. § 304.001. Under § 304.001, persons qualified to serve as representatives to an intestate estate are prioritized as follows: the decedent's surviving spouse; the next of kin of the decedent; a creditor of the decedent; any person of good character residing in the county who applies for the letters; any other person who is not disqualified under § 304.003; and any appointed public probate administrator. Id. The category at issue here is next of kin of the decedent.

The statute states next of kin "is determined in accordance with order of descent, with the person nearest in order of descent first, and so on[.]" Tex. Est. Code Ann. § 304.001(b)(1). The legislature has fixed the degree of relationship between blood relatives as determined by the number of generations that separate them. Tex. Gov't Code Ann. § 573.023. "A parent and child are related in the first degree[.]" Id. The legislature has also determined that individuals may be related to each other by affinity if they are married or "the spouse of one of the individuals is related by consanguinity to the other individual." Tex. Gov't Code Ann. § 573.024.

ii. Analysis

The statute articulates the category of priority applicable here as "the next of kin of the decedent." Tex. Est. Code Ann. § 304.001(a)(5). Zambrano argues she is entitled to priority as next of kin of the decedent's next of kin. This interpretation of the statute is directly contradicted by the plain text, which focuses on the decedent. Id. Further, the other provisions of the statute providing greater priority also focus upon the decedent. Id. The provisions that do not center on the decedent are lower priority and, consequently, much more general. See id. §304.001(7) ("any person of good character residing in the county who applies for the letters"). We therefore interpret the statute to prioritize decedent's next of kin and not the next of kin of the decedent's next of kin.

Next, we turn to whether the trial court properly identified Tovar as Decedent's next of kin. As an initial matter, it is undisputed that N.J.T. is not qualified to serve as personal representative because he is a minor. Tex. Est. Code Ann. § 304.003. But we include N.J.T. in our analysis because Zambrano's argument relies, in part, on her contention that N.J.T. cuts off Tovar's priority under the statute.

Under the statute's definition of next of kin, we consider who has the closest consanguinity or affinity relationship with Decedent. First, we consider the degree of relationship between all involved parties. N.J.T. is Decedent's child; and, therefore, he and Decedent are related in the first degree. Tex. Gov't Code Ann. § 573.023. Similarly, Decedent is Tovar's child; and, therefore, she and Decedent are also related in the first degree. Id. Zambrano was not Decedent's spouse and there is no evidence she is married to someone who has a relationship of consanguinity with Decedent. Therefore, Zambrano is not related to Decedent by consanguinity or affinity. See Tex. Gov't Code Ann. §§ 573.023, 573.024. For these reasons, both N.J.T. and Tovar are Decedent's next of kin.

Zambrano argues N.J.T. is Decedent's primary next of kin because he is the sole heir to the intestate estate. Assuming Zambrano's assertion that N.J.T. is the primary next of kin is correct, we next examine what occurs when a primary next of kin is not qualified to serve as personal representative. In Slay v. Davidson, the Beaumont Court of Appeals was faced with a similar issue. Slay v Davidson, 88 S.W.2d 650, 651 (Tex. App.-Beaumont 1935, writ ref'd). In that case, the decedent's brother, Davidson, claimed his right as next of kin and filed an application to be appointed administrator. Id. The Decedent's nephew, Slay, filed a counter application, arguing Davidson was not mentally or physically qualified to act as administrator because of his age. Id. At trial, Davidson requested if he was not appointed administrator due to his age, he would renounce his right to be appointed administrator in favor of his designee. Id. The trial court denied the applications of both Davidson and Slay and appointed Davidson's designee. Id. at 651-52. The court of appeals held that Davidson, could not designate an administrator because he had been disqualified from serving as administrator. Id. at 653. The court of appeals held Slay, who...