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IN THE

TENTH COURT OF
APPEALS

No.
10-06-00360-CV

In
the Matter of the Estate of

Stephen
Ellis Alexander, Deceased

From the County Court at
Law No. 2

McLennan County, Texas

Trial Court No.
2006-0814-CV2

Opinion

This appeal involves the question of whether the decedent Stephen Ellis
Alexander made a nuncupative will before his death or died
intestate.  The trial court determined that Stephen died
intestate.  Appellant Ben C. Lambeth contends in four issues that:
(1) the court abused its discretion by denying his oral request for a
continuance; (2) the court erred by granting a summary judgment motion
filed by Appellees Cheryl and Deborah Alexander, Stephen’s sisters,
because genuine issues of material fact remain on each element of Ben’s
claim that Stephen made a nuncupative will; (3) the court abused its
discretion by denying Ben’s motion for new trial premised on the denial of
his continuance request; and (4) the court abused its discretion by
denying his motion for new trial premised on the summary judgment
ruling.  We will affirm.

Background

In April 2001, Stephen, Cheryl, and Deborah each received a substantial
inheritance when their paternal grandmother died.[1]
According to the terms of a testamentary trust established by their
paternal grandfather in his will, they were each to receive: (1) monthly
payments of the net income from their portion of the corpus; (2) partial
distributions at the ages of twenty-five (one-third of the corpus) and
thirty (one-half of the remainder); and (3) a final distribution at the
age of thirty-five.[2]
Stephen consulted with an attorney regarding the need to prepare a
will.  They discussed the matter on several occasions, but no will
was ever executed.

Stephen suffered from several chronic conditions and was hospitalized at
the Veterans Administration Medical Center in Temple from June 18 to July
8, 2002 for complications associated with these conditions, exacerbated by
alcohol abuse.  He allegedly made the nuncupative will on July 4
while hospitalized in Temple.

According to the affidavits of several “friends,” Stephen was taken to the
VA hospital in Waco for “a few days” sometime after his release from the
VA hospital in Temple because he was retaining fluids.  “The staff
drained some fluids, but finally sent him home because they could do
nothing else for his condition.”

Stephen was taken by ambulance to another Waco hospital on July 24 due to
extreme intoxication.  He died two days later.

Cheryl filed an application to determine heirship and for an independent
administration of Stephen’s estate in the constitutional county court of
McLennan County.  Cheryl supported this application with affidavits
of heirship executed by herself, Deborah, Ben, and another person, each of
whom affirmed that the Cheryl and Deborah were Stephen’s sole heirs and
that he had died intestate.  The probate court approved the
independent administration of Stephen’s estate, granted letters of
administration to Cheryl, and declared Cheryl and Deborah to be Stephen’s
sole heirs.  Cheryl filed an inventory, appraisement, and list of
claims for Stephen’s estate which the court approved.

Ben filed an application to probate Stephen’s alleged nuncupative will a
few months later.[3]
Cheryl and Deborah answered Ben’s suit by denying the existence of a
valid, nuncupative will.  They filed a traditional summary judgment
motion and a no-evidence summary judgment motion.  The court granted
the traditional summary judgment motion and rendered a take-nothing
judgment in their favor.

Continuance

Ben contends in his first issue that the court abused its discretion by
denying his oral request for a continuance.

If a continuance motion does not comply with Rule of Civil Procedure 251,
it will be presumed that the court did not abuse its discretion by denying
the motion.  See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.
1986); Phifer v. Nacogdoches County Cent. Appraisal Dist., 45
S.W.3d 159, 173 (Tex. App.—Tyler 2000, pet. denied).

Ben’s oral continuance motion did not comply with Rule 251, which requires
that a continuance motion be “supported by affidavit.”  Tex. R. Civ. P. 251.
Accordingly, no abuse of discretion is shown, and his first issue is
overruled.  See Villegas, 711 S.W.2d at 626; Phifer, 45
S.W.3d at 173.

Nuncupative
Will

Ben contends in his second issue that the court erred by granting Cheryl’s
and Deborah’s traditional summary-judgment motion because genuine issues
of material fact remain on each element of his claim that Stephen made a
nuncupative will.[4]

We conduct a de novo review of a summary judgment.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005).  “When the trial court does not specify the basis for its
summary judgment, the appealing party must show it is error to base it on
any ground asserted in the motion.”  Star-Telegram, Inc. v.
Doe, 915 S.W.2d 471, 473 (Tex. 1995); accord Park v. City of San
Antonio, 230 S.W.3d 860, 865-66 (Tex. App.—El Paso 2007, pet.
denied).

To prevail on a traditional summary-judgment motion, the movant must
demonstrate that there are no genuine issues of material fact and that it
is entitled to judgment as a matter of law.  See Diversicare Gen.
Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).  “[W]e
take as true all competent evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor.”  Id.

Section 65 of the Probate Code states the requisites of a nuncupative
will.

No nuncupative will shall be established unless it be made in the time of
the last sickness of the deceased, at his home or where he has resided for
ten days or more next preceding the date of such will, except when the
deceased is taken sick away from home and dies before he returns to such
home; nor when the value exceeds Thirty Dollars, unless it be proved by
three credible witnesses that the testator called on a person to take
notice or bear testimony that such is his will, or words of like
import.

Tex. Prob. Code
Ann. § 65 (Vernon
2003).

Cheryl’s and Deborah’s summary-judgment
motion challenged virtually every element of Ben’s claim that Stephen had
made a nuncupative will.[5]
The first challenged element concerns whether Stephen was “in the time of
the last sickness” when he made the alleged nuncupative will.  The
rule in Texas has long been that the testator must be “in extremis” to
make a valid nuncupative will.  McClain v. Adams, 135 Tex.
627, 146 S.W.2d 373, 375 (1941).  “[A] nuncupative will is not good,
unless it be made by a testator when he is in extremis, or overtaken by
sudden and violent sickness, and has not time or opportunity to make a
written will.’”  Id., 146 S.W.2d at 374 (quoting Prince v.
Hazleton, 20 Johns. 502, 514 (N.Y. 1822)); see also 9 Gerry Beyer, Texas Practice: Texas Law
of Wills § 20.5 (3d ed. 2002); Michael J. Vaughn, Comment, The
Nuncupative Will, 18 Baylor L.
Rev. 77, 82-83 (1966).[6]

In McClain, the decedent had called a tenant to her bedside on a
Thursday afternoon and told him that she knew she was about to die.
She then told him that she wanted her friend Adams to inherit her
estate.  The decedent’s activities were unclear between Thursday
afternoon and Saturday, but on Saturday the decedent went to a neighbor’s
house and a nearby grocery store before returning home, where she died
that night.  See McClain, 146 S.W.2d at 373-74.

The court concluded:

Applying the approved rule to the facts of this case, it is obvious that
[the decedent] was not in extremis when she uttered the words claimed to
constitute her will.  Thereafter she had the time, ability and
opportunity to prepare or have prepared a written will.  About that
there is no dispute in the record.  Certain it is that she could have
attended to that matter on Saturday morning when she was able to transact
business and go in person to a store to purchase groceries.

Id. at 375.

The lower court had held that “Texas has not adopted the rule of some
states applying strict construction of the words ‘in the time of the last
sickness of the deceased’ to the effect that the person sick must then be
in extremis—be dying.”  In re Douglass’s Est., 126 S.W.2d 61,
63 (Tex. Civ. App.—Beaumont 1939), rev’d sub nom. McClain v. Adams,
135 Tex. 627, 146 S.W.2d 373 (1941).  This holding was plainly
rejected by the Supreme Court.  See McClain, 146 S.W.2d at
375.  The language of the statute has not changed in any significant
way since McClain was decided[7]
and our research has disclosed no subsequent decision altering the holding
in McClain.  E.g. Dabney v. Thomas, 596 S.W.2d 561, 564
(Tex. Civ. App.—Beaumont 1980, writ ref’d n.r.e.).

Viewed in the light most favorable to Ben the non-movant, the summary
judgment record shows that Stephen suffered from several chronic
conditions which ultimately contributed significantly to his death.
He allegedly made the nuncupative will while hospitalized in Temple for
complications associated with these conditions.  He died eighteen
days after his release from the Temple hospital, with one brief
intervening hospitalization of “a few days.”

Ben presented the affidavit[8]
of a nurse who reviewed Stephen’s medical records and reached the
following conclusions regarding the cause of his death:

Cause of Death - The patient, Steven [sic]
Ellis Alexander, died of an exacerbation of these chronic
illnesses.  From the date of his admittance to the VA Hospital in
Temple, the patient had the same chronic condition that he died from at
the Providence Health Center in Waco, Texas.  This was a continuing
and ongoing ir-reversible [sic] physical condition which could not be
reversed and from which the patient subsequently died.  Thus, Steven
[sic] Ellis Alexander was under the same continuing chronic illness from
the date he entered VA Temple to the time of his demise at Providence in
Waco.  There was no intervening recovery in his medical condition but
instead there was a temporary abatement of gastrointestinal
hemorrhage.  Once the patient was released by the hospital in Temple
he was not actively bleeding, but his medical condition remained the
same.  This condition at VA Temple was the same medical aliment [sic]
that caused his hemorrhaging, resulting in respiratory and cardiac arrest,
and his death at Providence Waco.

However, the fact that the chronic conditions which afflicted Stephen when
he was admitted to the VA hospital in Temple (and apparently many months
before) were the very same chronic conditions which substantially
contributed to his death thirty-eight days later is no evidence that
Stephen was “in extremis” during his hospitalization in Temple.
See McClain, 146 S.W.2d at 375.

In fact, the Prince decision which the Supreme Court quoted with
approval in McClain specifically addressed the issue of chronic
illness in this context.

If nuncupative wills can be
permitted at all, in the cases of chronic disorders, which make silent and
slow, but sure and fatal approaches, it is only in the very last stage and
extremity of them.  In no other period can such a disorder be deemed,
within any reasonable construction of the Statute of Frauds, a man’s last
sickness.  Such diseases continue for months, and sometimes for
years.  In one of Captain Cook’s voyages he states that he lost his
first lieutenant, Mr. Hicks, near the conclusion of the voyage of three
years, and almost within sight of the English coast.  But he adds
that as his disease was the consumption, and as it existed when he left
England, it might be truly said that he was dying during the whole
voyage.  What would the law call that man’s last sickness? Not the
whole voyage surely, and probably it would be narrowed down to the last
day, and to the last hour of his existence.  We must give a
reasonable interpretation to the Statute, in reference to the mischief,
and to the remedy.  We cannot safely apply a man’s last sickness to
the whole continuance of a protracted disease, without giving to the
Statute an absurd construction.

Prince, 20 Johns. at 515-16 (quoted in part by
Vaughn, 18 Baylor L. Rev.
at 83).

Although the Supreme Court did not directly address the issue of chronic
illness in McClain, it appears from the lower court’s opinion that
the decedent in that case died as a result of complications from a chronic
illness.

Annie became sick in 1930.  She gradually grew worse, and in 1934 was
practically helpless—she was then having some sort of “spells.”  This
continued until she died on September 8, 1934.

In re Douglass’s Est., 126 S.W.2d at 62.

We believe the holding in Prince is the correct application of the
“in extremis” rule to chronic illness.  Thus, “in the cases of
chronic disorders, which make silent and slow, but sure and fatal
approaches, it is only in the very last stage and extremity of them” that
a nuncupative will can be made.  Prince, 20 Johns. at 515
(quoted by Vaughn, 18 Baylor L.
Rev. at 83).

Viewed in the light most favorable to Ben, the summary judgment evidence
conclusively establishes that Stephen was not “in extremis” during his
hospitalization in Temple.  Thus, the court properly granted Cheryl’s
and Deborah’s summary judgment motion on this element of Ben’s
claim.  Because summary judgment was proper on this element, we need
not address the other elements challenged in the motion.  See
Star-Telegram, 915 S.W.2d at 473; Park, 230 S.W.3d
at 865.  Accordingly, we
overrule Ben’s second issue.

Motion for New
Trial

Ben contends in his third and fourth issues that the court abused its
discretion by denying his motion for new trial which: (a) challenged the
denial of his oral motion for continuance; (b) responded to Cheryl’s and
Deborah’s objections to his summary-judgment proof; and (c) presented
additional evidence in opposition to Cheryl’s and Deborah’s
summary-judgment motion.

Because the court did not abuse its discretion by denying Ben’s oral
continuance motion, the court necessarily did not abuse its discretion by
denying a motion for new trial challenging that ruling.

We have already noted that the court never ruled on Cheryl’s and Deborah’s
objections to Ben’s summary-judgment evidence.  Further, we have
considered Ben’s evidence in our review of the court’s judgment.
Thus, the court did not abuse its discretion insofar as it overruled Ben’s
motion for new trial with regard to those objections.

“[A] trial judge may accept summary judgment evidence filed late, even
after summary judgment, as long as he affirmatively indicates in the
record that he accepted or considered it.”  Stephens v.
Dolcefino, 126 S.W.3d 120, 133 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied).  Here, the court’s order denying Ben’s motion for new
trial states in pertinent part that the court reviewed “all the pleadings
timely filed.”  There is nothing in the record of the hearing on the
motion for new trial or the written order denying that motion which
affirmatively indicates that the trial court accepted the additional
evidence proffered by Ben with the motion for new trial.

The court would have been well within its discretion to consider this
additional evidence or reject it.  From the record before us, we
cannot say that the court abused its discretion by denying Ben’s motion
for new trial insofar as that motion presented additional evidence for the
court’s consideration.[9]

For these reasons, we overrule Ben’s third and fourth issues.

Conclusion

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief
Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered
and filed January 30, 2008

[CV06]

[1]

Stephen, Cheryl, and Deborah’s grandfather died in 1962.  Their
father predeceased their grandmother, but the year of his death is not
reflected in the record.

[2]

Stephen, Cheryl, and Deborah were each older than thirty-five when their
grandmother died.

[3]

In addition to Cheryl and Deborah, Ben originally named the bank which
holds most of Stephen’s funds in trust, the attorney with whom Stephen
consulted about preparing a will, and the attorney’s law firm as
defendants and alleged claims for civil conspiracy, fraud, tortious
interference with the rights of a beneficiary, and gross negligence of
counsel (due to counsel’s failure to draft a will for Stephen).  Ben
also requested that the case be transferred to a district court, which the
county court did.  In a prior appeal from the district court’s
judgment, this Court vacated the judgment and remanded the cause to the
district court with instructions to return the case to the county
court.  In re Est. of Alexander, 188 S.W.3d 327, 332 (Tex.
App.—Waco 2006, no pet.).  The other defendants were ultimately
non-suited.

[4]

Cheryl and Deborah presented similar claims in a no-evidence
summary-judgment motion, but the court granted only their traditional
summary-judgment motion.

[5]

Cheryl and Deborah alleged in
their First Amended Traditional Motion for Summary Judgment that they had
conclusively established their entitlement to judgment on the elements of:
(1) whether Stephen was experiencing his last sickness when he made the
alleged nuncupative will; (2) whether he made the will “at home or the
place where he died”; (3) whether the will could be proved by three
credible witnesses; and (4) whether Stephen told Ben “to take notice or
bear testimony that such [was] his will, or words of like
import.”

[6]
Black’s Law Dictionary defines the term “in extremis” as “[n]ear
the point of death; on one’s deathbed.”   Black’s Law Dictionary 792 (8th
ed. 2004).

[7]

The former article 8287 of the
Revised Civil Statutes of 1925 provided:

Requisites.—No nuncupative will shall
be established, unless it be made in the time of the last sickness of the
deceasd [sic], at his habitation or where he has resided for ten days next
preceding, except when the deceased is taken sick from home and dies
before he returns to such habitation; nor when the value exceeds thirty
dollars, unless it be proved by three credible witnesses that the testator
called on some person to take notice or bear testimony that such is his
will, or words of like import.

Act of Mar. 18, 1925, 39th Leg., R.S., § 1,
art. 8287, in 2 Revised Civil Statutes of the State of Texas
2386-87 (Baldwin & Sons 1925) (amended 1955) (current version at Tex. Prob. Code Ann. § 65 (Vernon
2003)).

[8]

Cheryl and Deborah filed written objections to Ben’s summary-judgment
evidence on the day before the summary-judgment hearing.  However,
the court did not rule on their objections.  Therefore, we consider
Ben’s summary-judgment evidence to be part of the record.  See
Mead v. RLMC, Inc., 225 S.W.3d 710, 714 (Tex. App.—Fort Worth 2007,
pet. denied); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879,
883 (Tex. App.—Dallas 2006, no pet.).

[9]

The additional evidence consisted of an affidavit from the attending
physician at Stephen’s death.  This physician reiterated previously
filed evidence that the chronic conditions which afflicted Stephen when he
was admitted to the VA hospital in Temple were the same chronic conditions
which substantially contributed to his
death.