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Click here for the full text of this decision FACTS: Mary and Mike Schindler appeal the trial court’s denial of their application to probate a second will of Ruby K. Schindler, deceased, as a muniment of title or, alternatively for its admission to revoke Ruby’s earlier probated will and codicils. Most of the parties in this case are members of the Schindler family. The parties are referred to by first name to avoid confusion. Ruby died June 18, 1996. At the time of her death, she was survived by her husband, J. L. Schindler, known as “Jodie,” their surviving children, William (Bill) Schindler, and George Schindler, and Bill’s children, Gene Schindler, Mark Schindler, Mike Schindler, Kathy Fritz, and Sue Fulkerson. On July 27, 1987, Ruby had executed a will. The 1987 will created a trust with income to Jodie for his lifetime and the remainder to Ruby’s children and grandchildren. Gene and Bill were named as co-trustees of the trust in the third codicil. Ruby signed another will on Sept. 26, 1995. This will revoked all prior wills and codicils. The 1995 will provided for some specific bequests to Jodie and the remainder to Jodie in the event an intervivos trust, which was created when the 1995 will was executed, was not in existence at Ruby’s death. The record shows that the trust was terminated during Ruby’s life. Therefore, under the 1995 Will, Ruby’s property would have passed to Jodie. Several people were present when Ruby signed the 1995 will, including Jodie and Gene. Jodie offered the 1987 will for probate. The 1987 will was admitted to probate as a muniment of title on September 10, 1996. The trust was never funded after probate of the 1987 will. After Ruby’s death, Jodie married Mary. Jodie died April 13, 2000. His will left approximately seventy-five percent of his estate to Mary and twenty-five percent to his son Bill. Bill and Charles Tischler were named co-executors in Jodie’s will. There is no dispute here regarding probate of Jodie’s will. On June 14, 2001, Mary and Mike filed an application to probate Ruby’s 1995 will as a muniment of title or, alternatively, to admit the 1995 will to revoke the 1987 will. Later, George joined in the application. Appellees were served as parties interested in the estate; they answered asserting probate was barred by limitations and that Ruby lacked the testamentary capacity to make the 1995 will, and requested attorney’s fees. The case was tried to the court. The trial court denied the application of the 1995 will and awarded attorney’s fees to appellees against Mary, Mike, and George jointly and severally. The trial court filed findings of fact and conclusions of law. Mary and Mike, but not George, appeal. HOLDING: The court reverses that part of the judgment ordering that appellees recover attorney’s fees against George and renders judgment that appellees take nothing by way of attorney’s fees from George. In all other respects, the trial court’s judgment is affirmed. Ruby died June 18, 1996. Pursuant to Texas Probate Code �73(a), Mary and Mike must have applied for probate of the 1995 will by June 18, 2000. The application was filed June 14, 2001. The parties stipulated that the application to probate the 1995 will was filed more than four years after Ruby’s death. Mary and Mike contend that they did not know of the 1995 will until May 2001, when the attorney for Bill and Charles Tischler produced it during discovery relating to the probate of Jodie’s estate. However, it is undisputed that Jodie, a devisee of the 1995 will, knew of the 1995 will and failed to offer it for probate before he died April 13, 2000. His death before the end of the four-year limitations period is immaterial because the statute makes no provision for the life of the applicant as to the limitations period. Therefore, Jodie was in default. Mary, as a devisee of Jodie, stands in no better position than Jodie. Whether Bill or Charles Tischler knew about the 1995 will and failed to present it for probate is immaterial as to Mary because those persons are not proponents of the 1995 will. Therefore, the trial court correctly found that Jodie and Mary defaulted their right to probate the 1995 will. As to Mike, the trial court concluded that Mike was in default, finding that he did not present any proof that he was not in default in failing to present the 1995 Will for probate within four years of Ruby’s death. Appellants do not attack this finding on appeal. Moreover, Mike did not appear at trial and offered no evidence as to default. Evidence as to Bill’s or Charles Tischler’s acts are immaterial to Mike, as they are to Mary. Thus, the court concludes the trial court correctly concluded that Mike defaulted his right to probate the 1995 will. The appellants contend that the trial court erred in finding that Ruby did not possess the necessary testamentary capacity when she signed the 1995 will because the finding is against the great weight and preponderance of the evidence. The record shows that five witnesses, present when Ruby signed the 1995 will on Sept. 26, 1995, testified at the trial. These witnesses testified that Ruby knew her family and understood that she was signing a will. There was evidence that Ruby suffered strokes in 1993 and 1994, her physical and mental condition deteriorated, and she could not pay bills, buy groceries or write checks in September 1995. There was testimony that Ruby had difficulty recognizing family members in September 1995. There was evidence she suffered mental and physical abuse from Jodie in September 1995. There was evidence that in 1994 Ruby told a neighbor that she spoke to her parents, who had been dead for decades, and that Ruby had other hallucinations in the six months before the November 1995 stroke. There was testimony that she “was just not in reality” and was “childlike” in September 1995. After she suffered the November 1995 stroke, she could not speak or feed herself, and she entered a nursing home in December 1995. Medical records showed that, prior to the final stroke in November 1995, she had a medical history of senile dementia, coronary heart disease, atrial fibrillation, cerebrovascular accident, kidney disease, and Alzheimer’s. Considering this evidence and all the record evidence, the court cannot say that the trial court’s finding that Ruby lacked testamentary capacity to sign the 1995 will is against the great weight and preponderance of the evidence. The appellees are not entitled to attorney’s fees pursuant to the probate code. The common fund doctrine is based on the principle that those receiving the benefits of the suit should bear their fair share of the expenses. Lancer Corp. v. Murillo, 909 S.W.2d 122 (Tex. App. � San Antonio 1995, no writ). This case is distinguishable from Lancer Corp. because the probate code provides a statutory basis for an award of attorney’s fees. Therefore, the equitable principles in Lancer Corp. do not apply here. OPINION: Jim Moseley, J.

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