George Zegub/Gloria Zegub Manos and Charlene Zegub v. Gloria Zegub Manos Charlene Zegub, Independent of the Estate of Lewis Zegub Dean Zegub Lyle Zegub Mike Manos, III Kelly Schievelbein And Nancy Scherer, Administratrix of the Estate of Victoria Zegub/George Zegub

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00234-CV George Zegub/Gloria Zegub Manos and Charlene Zegub, Appellants v. Gloria Zegub Manos; Charlene Zegub, as Independent Executrix of the Estate of Lewis Zegub; Dean Zegub; Lyle Zegub; Mike Manos, III; Kelly Schievelbein;and Nancy Scherer, Administratrix of the Estate of Victoria Zegub/George Zegub, Appellees FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY NO. 58,222-A, HONORABLE GUY S. HERMAN, JUDGE PRESIDING George Zegub, Jr. appeals the probate court's declaratory judgment resolving various issues in his mother's estate. (1) We will affirm. Factual Background George Zegub, Sr. ("George Sr.") and Victoria Joseph Zegub ("Victoria") were husband and wife and had three children: Lewis J. Zegub ("Lewis"), Gloria Zegub Manos ("Gloria") and George Zegub, Jr. ("George Jr.") (collectively "Zegub children"). George Sr. died intestate on October 22, 1976, survived by Victoria and the Zegub children. At the time of George Sr.'s death, the Zegub children had the following children: Lewis (Kelly Schievelbein); Gloria (Mike Manos, III); and George Jr. (Georgia Ford, Dini Nash, Dean Zegub, and Lyle E.M.Zegub) (collectively "Zegub grandchildren"). Because George Sr. died intestate, under section 45 of the Probate Code then in effect, Victoria would have retained her half of the community estate and George Sr.'s half would have passed in equal undivided one-third interests to the Zegub children. Act of March 17, 1955, 54th Leg., R.S., ch. 55, sec. 45, 1955 Tex. Gen. Laws 88, 103 (Tex. Prob. Code Ann. § 45, since amended). On December 1, 1976, the Zegub children, intending to "disclaim" their father's share of the community marital estate and pass their inherited interests to their mother, each signed a disclaimer (2) pursuant to section 37A of the Probate Code. See Tex. Prob. Code Ann. § 37A (West Supp. 2000). The Zegub children believed the disclaimer was effective to give George Sr.'s one-half community share of the marital estate which they inherited in undivided one-third interests to Victoria. After the date of the disclaimer, all interested parties treated the disclaimer as having passed George Sr.'s property to Victoria. Victoria administered George Sr.'s estate which closed following approval of a final accounting by order dated March 28, 1978. The order awarded George Sr.'s entire estate to Victoria as his sole heir at law. George Sr. owned no separate property and all marital property owned by George Sr. and Victoria was community property. In 1982, Victoria transferred real property located at 607 East 3rd Street to George Jr. The City of Austin subsequently condemned the property and George Jr. received $250,000. On October 26, 1983, Victoria signed a will which indicated that she wanted the inter vivos transfer to George Jr. to be taken into consideration when her estate was divided to insure that all Zegub children received an equal share of her estate. Victoria died testate (3) on May 28, 1991 survived by all the Zegub children and grandchildren. Her will was admitted to probate on June 7, 1991. The Zegub children entered a written settlement agreement ("Family Settlement Agreement") on December 13, 1991, which attempted to equitably divide Victoria's estate given the value of the inter vivos transfer to George Jr. compared to the value of Victoria's estate. Despite the Family Settlement Agreement, George Jr. remained dissatisfied and eventually filed a partition suit in district court seeking to partition the tracts of land and to divide the proceeds among the Zegub children and Zegub grandchildren according to their interests. Charlene (4) and Gloria filed an adverse probate action in Victoria's pending probate seeking, among other matters, a reformation or recission of the disclaimer (5) and for reimbursement from George Jr. to Lewis' Estate and Gloria to equalize their respective shares of Victoria's estate, in light of the inter vivos transfer to George Jr. Gloria and Charlene also sought a transfer of George Jr.'s partition suit into the probate court, which the probate court granted. In the declaratory judgment, the probate court found that the disclaimer did not transfer the Zegub children's interests in their father's estate to their mother. The probate court found that the disclaimer moved the Zegub children's interests "downstream" to the Zegub grandchildren, not "upstream" to Victoria. Because the disclaimer was valid despite the children's contrary intent, the probate court refused to set it aside. Although the Zegub grandchildren inherited George Sr.'s one-half community share of the marital estate, Victoria held and used the personal property and the income from the real property until her death in 1991. The probate court characterized Victoria's possession of the personal property and rental proceeds of the Zegub grandchildren as a resulting trust which terminated upon each grandchild reaching majority. According to the probate court, Victoria had a fiduciary obligation to turn over a proportionate share of the personal property and the rental proceeds to each of the grandchildren as he or she reached eighteen. Victoria failed to do so. None of the Zegub grandchildren received their inheritance or requested their property from Victoria before her death and none filed suit for conversion within four years of reaching majority. Two of George Jr.'s children, Dean and Lyle, filed the first suits for damages in November 1996. The probate court stated that these lawsuits tolled the statute of limitations as to Dean and Lyle on their claims for income from the rental properties, but only for the four years immediately preceding the filing dates. The probate court concluded that the Zegub grandchildren's claims for tortious conversion of personal property were barred by the statute of limitations. The probate court further found that the Zegub children entered the Family Settlement Agreement based on the erroneous belief that Victoria owned one-hundred percent of the real and personal property, rather than one-half. Accordingly, the probate court set aside the agreement due to mutual mistake of the parties, and set aside the transfers of property made pursuant to it. The probate court determined because George Jr. received real property which far exceeded the total value of Victoria's estate and because Victoria's will clearly indicated her intent that her children share equally in her estate, George Jr. was not entitled to take under the will. However, because Victoria operated under a unilateral mistake in believing that her estate would be valued at least at twice the value of the property transferred to George Jr., the probate court did not order George to reimburse the estate. The probate court made various awards of attorney's fees as a result of the declaratory judgment. Only George Jr. appeals, raising six issues. Discussion We note at the outset that George Jr. failed to secure a reporter's record for our review. See Tex. R. App. P. 35.3(b)(2)-(3). Accordingly, we are bound to assume that the missing evidence supports the trial court's ruling. In re Spiegel, 6 S.W.3d 643, 646 (Tex. App.-- Amarillo 1999, no pet.) (citing Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26,31 (Tex. 1998)). We will decide those issues raised which do not depend on the reporter's record; however, we need not consider those issues that are dependent upon its presence in the appellate record. Spiegel, 6 S.W.3d at 646 n.1. We turn first to those issues which are not dependent upon a reporter's record. Because the disclaimer is the source of this controversy, we will address it first. George Jr. complains in his sixth issue of the probate court's conclusion that the disclaimer effectively passed the interests of the Zegub children to the Zegub grandchildren rather than to Victoria. Section 37A of the Probate Code provides that "the property subject to the disclaimer shall pass as if the person disclaiming or on whose behalf a disclaimer is made had predeceased the decedent and a future interest that would otherwise take effect in possession or enjoyment after the termination of the estate or interest that is disclaimed takes effect as if the disclaiming beneficiary had predeceased the decedent." Tex. Prob. Code Ann. § 37A (West Supp. 2000). A disclaimer will not be set aside merely because the person executing it intended that his or her interest being disclaimed would go to a particular person, when it would not under the laws of intestacy. See Northwestern Nat'l Cas. Co. v. Doucette, 817 S.W.2d 396, 401 (Tex. App.--Fort Worth 1991, writ denied); Tate v. Siepielski, 740 S.W.2d 92, 94 (Tex. App.--Fort Worth 1987, no writ). In both Doucette and Tate, the disclaiming parties intended to pass property "upstream" to a parent by naming the parent in the disclaimer, when the laws of intestacy would require the property be passed "downstream" to the persons who would have inherited had the person attempting to disclaim died prior to the decedent. Doucette, 817 S.W.2d at 400-01; Tate 740 S.W.2d at 93. Notwithstanding the parties' contrary intentions, both courts held that so long as the disclaiming instrument met all the requirements of the disclaimer statute, it would be interpreted to have the effect of a disclaimer, which passed property "downstream." See Doucette, 817 S.W.2d at 400-01; Tate, 740 S.W.2d at 94. Applying the rationale of these two cases, the disclaimer executed by the Zegub children passed George Sr.'s one-half of the community estate to the Zegub grandchildren. (6) Accordingly, the probate court appropriately declared that the disclaimer executed by the Zegub children was valid, passed property to the Zegub grandchildren despite contrary intentions, and could not be set aside. We overrule George Jr.'s sixth issue. In his first issue, George Jr. complains of the transfer of his partition suit to the probate court. Section 5B of the Texas Probate Code provides that a statutory probate court may, on the motion of a party or on the motion of a person interested in the estate, transfer to itself from a district court a cause of action appertaining to or incident to an estate pending in the statutory probate court. Tex. Prob. Code Ann. § 5B (West Supp. 2000). Gloria and Charlene requested the probate court to transfer the partition suit from district court. Because the probate court in Travis County is a statutory probate court, Tex. Gov't Code Ann. § 25.2291(c) (West Supp. 2000), the only question is whether the partition suit was "appertaining to or incident to an estate." Tex. Prob. Code Ann. §5B (West Supp. 2000). George Jr., through his then-attorney, consented to the transfer of the partition action as evidenced by the language of the Agreed Order on Motion for Transfer of Proceedings and by his attorney's signature on the order. In addition, we conclude the transfer complied with section 5B. Section 5A defines "appertaining to estates" or "incident to an estate" as including "all claims by or against an estate, all actions for trial of title to land and for the enforcement of liens thereon, all actions for trial of the right of property, all actions to construe wills, the interpretation and administration of testamentary trusts and the applying of constructive trusts, and generally all matters relating to the settlement, partition, and distribution of estates of deceased persons." Tex. Prob. Code Ann. § 5A(b) (West Supp. 2000). George Jr. sought in his First Amended Original Petition to partition three parcels of real property that were also at issue in the adverse probate proceeding in probate court. Accordingly, the probate court correctly transferred the partition action from the district court to itself. We overrule George Jr.'s complaints regarding the transfer of the partition suit to the probate court. In his third issue, George Jr. argues that the probate court lacked jurisdiction to adjudicate any matters pertaining to Victoria's share of George Sr.'s estate because of the statute of limitations. Citing section 55(a) of the Probate Code, which provides a four-year statute of limitations for heirship determinations, George Jr. argues that the 1978 order was final and unappealed, therefore, the grandchildren's claims are barred by limitations. See Tex. Prob. Code Ann. § 55(a) (West 1980). Thus, according to George Jr.'s argument, the adverse probate action should have been dismissed. George Jr. confuses a jurisdictional argument with an argument about an affirmative defense. Section 5(e) provides that "[a]ll courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate." Tex. Prob. Code Ann. § 5(e) (West Supp. 2000). A matter "incident to an estate" includes among other things the settlement, partition and distribution of estates. Tex. Prob. Code Ann. § 5A(b) (West Supp. 2000). For a probate court to obtain jurisdiction of a matter under section 5(e), the outcome of the controversy must be necessary to the resolution of the particular estate. Bruflat v. Rodeheaver, 830 S.W.2d 821, 823 (Tex. App.--Houston [1st Dist.] 1992, no writ). The declaratory judgment and the partition suit involved the same property which the Zegub children contended Victoria's will purported to devise to them. We conclude that the probate court had jurisdiction over the declaratory judgment and the partition suit. We overrule George Jr.'s third issue. We now turn to the issues which require a reporter's record for an appropriate review. In addition to the transfer matter, George Jr. raises a number of other alleged errors committed by the probate court as part of his first issue. He argues that the court erred by: (1) failing to allow the parties to implement the terms of their mediation; (2) disallowing any contest of Victoria's will; (3) conducting a hearing on the merits to reconstruct Victoria's will vitiating any of George Jr.'s defenses; and (4) prohibiting him from making the same challenges to the will that were available to him in the original filing of the will for probate. These complaints require an evidentiary review. Without a reporter's record, we must indulge every presumption in favor of the trial court's findings. Bryant, 972 S.W.2d at 31. We overrule the remaining portions of George Jr.'s first issue. In his second issue, George Jr. challenges the probate court's conclusion that the statute of limitations does not bar the Zegub grandchildren from asserting their interests received as a result of the disclaimer executed by their parents. George Jr. contends that the grandchildren's causes of action accrued when the probate court signed the March 28, 1978 Order Approving Account for Final Settlement and Authorizing Distribution of the Estate which ordered that all property belonging to the Estate of George Zegub Sr. remaining on hand after payment of all debts and expenses shall be delivered to Victoria Zegub, as his sole heir. George Jr. acknowledges that due to the Zegub grandchildren's minority, their causes of action were tolled until each reached majority. However, because none of the Zegub grandchildren filed suit within four years of turning eighteen, George Jr. contends they have no right to any of the property they would have received as a result of the disclaimer executed in December 1976. The application of the statute of limitations in this case requires review of factual issues which are not found in the clerk's record. Without a reporter's record we cannot properly review this issue. Accordingly, we are left with the presumption that the record supports the probate court's determination. We overrule George Jr.'s second issue. In his fourth issue, George Jr. complains that the probate court erred when it prevented him from presenting evidence which showed that his prior attorney "owed a duty to him to exercise ordinary care and diligence and was negligent" in his conduct with George Jr. We cannot reach the question of whether the exclusion of evidence was proper unless the excluded evidence is included in the record for our review. McInnes v. Yamaha Motor Corp.,U.S.A., 673 S.W.2d 185, 187 (Tex. 1984). Because the record contains no formal bill of exceptions and no reporter's record with an offer of proof, we have nothing to review. We overrule George Jr.'s fourth issue. In this fifth issue, George Jr. complains of the probate court's findings that he engaged in dilatory and uncooperative conduct which influenced the probate court's awards of attorney's fees. Review of this issue requires evidentiary matters which presumably would be contained in a reporter's record. We have been presented with no reporter's record. Accordingly, we have nothing to review and we overrule George Jr.'s fifth issue. Conclusion Having overruled each of George Jr.'s issues, we affirm the probate court judgment. Mack Kidd, Justice Before Chief Justice Aboussie, Justices Kidd and B. A. Smith Affirmed Filed: June 22, 2000 Do Not Publish 1. Cross-Appellants filed a notice of appeal; however, their brief indicates that they no longer challenge the unfavorable portions of the declaratory judgment and that they request this Court to affirm the judgment. 2. The disclaimer was a single document signed by all three Zegub children and provided as follows: We, Gloria Z. Manos, Lewis Zegub & George Zegub, in accordance with the provisions of Section 37A of the Texas Probate Code, hereby disclaim any interest in any property which I (sic) may be entitled to receive from the estate or by virtue of the death of George Zegub, Sr., Deceased. 3. The judgment recites that Victoria died "intestate," however, it also recites that she had a will. 4. Charlene is Lewis' widow and the executor of his estate. 5. They later abandoned this argument. 6. Nothing in the record before this Court indicates the disclaimer fails to comply with the requirements of section 37A of the Probate Code. first issue. He argues that the court erred by: (1) failing to allow the parties to implement the terms of their mediation; (2) disallowing any contest of Victoria's will; (3) conducting a hearing on the merits to reconstruct Victoria's will vitiating any of George Jr.'s defenses; and (4) prohibiting him from making the same challenges to the will that were available to him in the original filing of the will for probate. These complaints require an evidentiary review. Without a reporter's record, we must indulge every presumption in favor of the trial court's findings. Bryant, 972 S.W.2d at 31. We overrule the remaining portions of George Jr.'s first issue. In his second issue, George Jr. challenges the probate court's conclusion that the statute of limitations does not bar the Zegub grandchildren from asserting their interests received as a result of the disclaimer executed by their parents. George Jr. contends that the grandchildren's causes of action accrued when the probate court signed the March 28, 1978 Order Approving Account for Final Settlement and Authorizing Distribution of the Estate which ordered that all property belonging to the Estate of George Zegub Sr. remaining on hand after payment of all debts and expenses shall be delivered to Victoria Zegub, as his sole heir. George Jr. acknowledges that due to the Zegub grandchildren's minority, their causes of action were tolled until each reached majority. However, because none of the Zegub grandchildren filed suit within four years of turning eighteen, George Jr. contends they have no right to any of the property they would have received as a result of the disclaimer executed in December 1976. The application of the statute of limitations in this case requires review of factual issues which are not found in the clerk's record. Without a reporter's record we cannot properly review this issue. Accordingly, we are left with the presumption that the record supports the probate court's determination. We overrule George Jr.'s second issue. In his fourth issue, George Jr. complains that the probate court erred when it prevented him from presenting evidence which showed that his prior attorney "owed a duty to him to exercise ordinary care and diligence and was negligent" in his conduct with George Jr. We cannot reach the question of whether the exclusion of evidence was proper unless the excluded evidence is included in the record for our review. McInnes v. Yamaha Motor Corp.,U.S.A., 673 S.W.2d 185, 187 (Tex. 1984). Because the record contains no formal bill of exceptions and no reporter's record with an offer of proof, we have nothing to review. We overrule George Jr.'s fourth issue. In this fifth issue, George Jr. complains of the probate court's findings that he engaged in dilatory and uncooperative conduct which influenced the probate court's awards of attorney's fees. Review of this issue requires evidentiary matters which presumably would be contained in a reporter's record. We have been presented with no reporter's record. Accordingly, we have nothing to review and we overrule George Jr.'s fifth issue. Conclusion Having overruled each of George Jr.'s issues, we affirm the probate court judgment. Mack Kidd, Justice Before Chief Justice Aboussie, Justices Kidd and B. A. Smith Affirmed Filed: June 22, 2000 Do Not Publish 1. Cross-Appellants filed a notice of appeal; however, their brief indicates that they no longer challenge the unfavorable portions of the declaratory judgment and that they request this Court to affirm the judgment. 2. The disclaimer was a single document signed by all three Zegub children and provided as follows: