In re SWEPI , 85 S.W.3d 800 (Tex. 2002).
Testatrix died in 1976 and the Probate Court admitted her will in
1977. After a long and complex series of events, a suit was filed in the
District Court concerning royalty payments on an overriding royalty
interest owned by a partnership in which Testator and subsequently her
estate were former partners. Under Probate Code § 5B, the Probate Court
transferred to itself the District Court lawsuit. One of the parties to
the District Court proceeding objected claiming that the District Court
action was not appertaining to or incident to Testatrix’s estate and
thus the transfer order was improper. The Court of Appeals determined
that the transfer was proper.
The Supreme Court of Texas disagreed, conditionally granted mandamus,
and directed the Probate Court to vacate its order transferring the
District Court action. The personal representative of the estate was not
and had never been a party to the District Court action. Accordingly,
transfer under § 5B would be proper only if the District Court action
was appertaining to or incident to Testatrix’s estate.
The court recognized that there are two ways an action may be
appertaining to or incident to an estate. First, the cause of action may
be expressly listed in § 5A(b) and second, the controlling issue in the
suit may be the settlement, partition, or distribution of an estate. The
District Court action was not included in the statutory list and thus
the only way for the Probate Court to have the authority to transfer is
if the controlling issue in the District Court action related to the
settlement, partition, or distribution of Testatrix’s estate. After
conducting an extensive review of the pleadings, evidence, and prior
judicial authority on the issue, the court held that the District Court
action was not appertaining to or incident to the estate.
Moral: Merely because an action may impact the claims of an estate
through collateral estoppel is not sufficient to make the action
appertaining to or incident to an estate.