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Click here for the full text of this decision FACTS:Rudolph Bittner wrote a will in 1997 devising his farm to his niece, Mary Ann Poppe. If Mary Ann did not survive him, Bittner devised the farm to Poppe’s two daughters, Gracie Ritter and Terri Filipp. Bittner intentionally did not devise any property to his nephew, James Till. In 1999, acting on the power of attorney granted to her by Bittner, Poppe created the Bittner revocable living trust, which named Bittner as the trustee and Poppe as the successor trustee. Poppe executed a warranty deed conveying the farm from Bittner to “Bittner as trustee of the trust.” The trust stated that Poppe was to receive the farm at Bittner’s death. Bittner died Jan. 7, 2001. Two months later, acting a successor trustee, Poppe executed a warranty deed conveying the farm from the Bittner trust to her own trust. Till sued Poppe on Sept. 4, 2001, for a declaration of rights and legal relations under the trust agreement and warranty deeds. A default judgment declaring Till to be the owner of the farm was entered in May 2003. Meanwhile, Bittner’s will was probated as a muniment of title on Feb. 10, 2003. At the same time, Poppe filed a document disclaiming her interest in any property she might be entitled to under the will. Ritter and Filipp then filed a trespass-to-try-title suit against Till. They sought to have themselves declared owners of the farm and to have the Bittner trust declared void. The trial court granted Till’s special exceptions, which were based on Till’s assertion that the property passed to the Bittner trust; therefore it was not part of the estate at the time of Bittner’s death and consequently Ritter and Filipp had no interest under the will. The trial court then dismissed Ritter’s and Filipp’s suit with prejudice. Poppe appeals the default judgment in the first suit, and Ritter and Filipp appeal the trial court’s order sustaining Till’s special exceptions. HOLDING:Vacated in part; reversed and remanded in part. The court dismisses Poppe’s appeal because it was not timely filed. Poppe’s notice of appeal was due Aug. 21, 2002, but she did not file it until almost a year later. Turning to Ritter’s and Filipp’s appeal, the court notes that though Till questions Ritter’s and Filipp’s standing to bring suit, what he is actually arguing is that the women have no interest in the property on which to base their cause of action. The court agrees with Ritter and Filipp that the women obtained title to the farm through the probate of Bittner’s will and Poppe’s disclaimer of her interest in the property under the will. When Bittner died, title to the farm vested immediately in Poppe. The default judgment Till obtained did not set aside Bittner’s will, as Till did not include the Bittner estate in his suit. The court acknowledges that the default judgment could be effectual to disgorge Poppe and all others of any right, title or interest in the farm; however, once Bittner’s will was admitted to probate, it became effectual as proof of title to the property devised by the will. “In other words, after it has been probated, a will becomes evidence of the right of the devisees and legatees to take their devises and bequests, and their title is subject to defeasance only in the event that the order probating the instrument is set aside in a subsequent suit to contest its validity. . . . Applying these principles to this case, once Bittner died, the farm vested immediately in Poppe subject to payment of any debts. However, the default judgment was not a complete adjudication of Bittner’s estate and Poppe’s interest in the farm was properly the subject of an order admitting the Bittner will to probate.” The court observes that Poppe’s attempt to disclaim her interest in the farm was ineffective because it was not in compliance with Probate Code 37A because it was filed long after the nine-month deadline. “A disclaimer that is ineffective for failure to comply with statutory requirements results in an assignment to those who would have received the property had the person attempting to disclaim predeceased the testator. . . . A plain reading of this statute militates our conclusion that an ineffective disclaimer results in an assignment to those who would receive the interest if the person who attempted to disclaim had died before the decedent.” The court takes the opportunity to distance itself from Thompson v. Lawson, 793 S.W.2d 94 (Tex.App. – Eastland 1990, writ denied), which held that an ineffective disclaimer under 37A must satisfy the requirements of Probate Code 37B to be effective of an assignment. The court believes the Thompson opinion is contrary to the plain meaning of the statute and was not supported by authority. The court then rules that the trust was void, as Poppe’s power of attorney did not allow her to create a trust. Because no trust was created, the attempted conveyance of the farm to the trust was ineffective. Therefore, the farm remained in Bittner’s estate when he died, subject to devise under the will. The order admitting Bittner’s will to probate as muniment of title gave Ritter and Filipp a cognizable claim to the farm as though the record of title vested in their names, the court finds. Therefore, Ritter and Filipp sufficiently stated a cause of action for trespass to try title to the farm, and the trial court erred in dismissing the case on special exceptions. OPINION:Seymore, J.; Fowler, Edelman and Seymore, JJ.

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