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Click here for the full text of this decision FACTS:Mary Ann Bean executed a will in June 1995, naming William Richard Shore Jr. as the independent executor. Shore was also a devisee under the will for certain gas rights. Bean executed one codicil to the will in June 1997 and another in March 2000, two months before she died. Shore applied to probate the will in Rusk County in May 2000, a move that James DeWitt, another devisee, challenged, but the probate court named Shore as the executor in June 2000. DeWitt and two other devisees filed an application for partition and distribution of the estate and for declaratory judgment in July 2001. The trial court granted their requests in February 2002, after construing the will and finding some of the will and related portions of the codicil invalid. Shore appealed, citing various jurisdictional arguments. He says the trial court lacked jurisdiction to enter the declaratory judgment construing the Bean’s will because it appointed an independent executor to administer the independent estate. Second, he claims the trial court was without jurisdiction to order the partition and distribution of the Bean’s estate because 24 months had not passed since the appointment of the independent executor. Finally, he contends the trial court did not have jurisdiction to consider the application since it failed to require all devisees of Bean’s estate be cited to appear as required by Texas law. HOLDING:Dismissed for lack of jurisdiction. The court explains that Probate Code �5(f) gives courts with probate jurisdiction the power to hear all matters incident to an estate; � 5A says matters incident to an estate include actions to construe wills and decide matters relating to settlement, partition and distribution of the estate; and under �145(h), as long as the estate is represented by an independent executor, further action should not be had in the court except where the Probate Code, or other law, specifically and explicitly provides for some action in the court. The court concludes, that despite �145(h)’s apparent limitation, an action for declaratory judgment construing a provision of a will is permissible. Furthermore, devisees such as DeWitt and his fellow devisees are among the classes of people who have the power to seek a declaration of rights with respect to an estate to, among other things, determine any question arising in the administration of the estate, including questions of will construction. Therefore, “the trial court was not deprived of jurisdiction to construe Bean’s will merely because it had appointed an independent executor.” However, the court agrees with Shore that the trial court lacked jurisdiction to enter the partition because, as required by Probate Code �149B(a), 24 months had not passed since Shore had been appointed as independent executor before the court made its order. A court does not have jurisdiction to order an independent executor to distribute the estate until two years has passed. The court also finds the trial court was without jurisdiction to enter a declaratory judgment because the DeWitt plaintiffs did not personally serve one of the parties who would be affected by the division. The party was a minor, and he was neither personally served, nor was anyone designated as his guardian or next friend. As his rights could have been prejudiced by the trial court’s order, it was necessary for him to be notified of the action. OPINION:Ross, J.

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