Bowen v. Hazel , 723 S.W.2d 795 ( 1987 )

BLEIL, Justice.

This is an appeal from a district court’s judgment of dismissal for lack of jurisdiction in a probate matter. The district court dismissed the case because it determined that the county court had entered a final judgment in the same matter, which was not appealed. Thus it declined jurisdiction. We affirm.

Bob Bowen is the named executor in the will of Marjorie Johnson, deceased. Bowen, Johnson’s nephew, filed an inventory, appraisement, and list of claims in the county court, sitting as probate court, of Bowie County. This inventory and appraisal did not include the following thirteen items of property: nine certificates of deposit, two checking accounts, and two savings accounts. These items were not included in the inventory because Bowen determined that they were to pass by right of survivorship rather than under Johnson’s will. Bowen is listed as the joint tenant with survivorship rights on each of the items involved.

The appellees, Johnson’s testamentary beneficiaries, filed a challenge to the inventory and appraisal, alleging that the accounts and certificates of deposit were part of the estate. As a result, the county court held a hearing and issued an order on December 5, 1985, requiring Bowen to return some of the money to the estate pending a final determination of the cause. The court’s order recites that it finds as a matter of law that certain monies now possessed by Bowen shall be returned to the estate pending final determination because said funds were and are the property of the estate.

In response to this order, Bowen filed a petition for declaratory judgment in Bowie County district court. This petition was answered and later two motions for summary judgment were filed by different parties; the answer and each motion alleged that the order of December 5 was a final order, appealable only to the Court of Appeals, and therefore the district court lacked jurisdiction to adjudicate the issue.

The district court held a hearing on May 2, 1986, and determined that the county court’s order of December 5 was a final order; it thereupon dismissed the petition for declaratory judgment for lack of jurisdiction.

The December 5 order requires Bowen to return certain monies to the estate pending final disposition. The wording of the order, including the repeated use of the phrase “pending final disposition,” ordinarily would require us to conclude that the order is interlocutory and not appeal-able.

Appeals in probate matters are distinguishable from the usual appeals in civil cases. Carter v. Carter, 594 S.W.2d 464 (Tex.Civ.App.—San Antonio 1979, writ ref’d n.r.e.). The authority to appeal from an order of a probate court is governed by Tex.Prob. Code Ann. § 5(e) (Vernon 1980), which provides: “All final orders of any court exercising original probate jurisdiction shall be appealable to the courts of (civil) appeals.” This has been held to mean that an order in a probate proceeding is appealable if it finally adjudicates some substantial right and the order may be final and appealable even though the decision does not fully and finally dispose of the entire probate proceeding. Kelley v. Barnhill, 144 Tex. 14, 188 S.W.2d 385 (1945); Estate of Wright, 676 S.W.2d 161 (Tex.App.—Corpus Christi 1984, writ ref’d n.r.e.).

Here, the order clearly declares the monies in controversy to be a part of the estate. Although the county court has not specifically determined — and obviously will do so later — whether the funds in the accounts will pass as a part of the estate or pursuant to a survivorship agreement, we conclude it is an appealable probate court order because it finally determines a substantial right. We conclude that the district court properly determined that the county court order was a final, appealable judgment. We do not preclude the possibility of appellate review of the probate court’s ultimate determination of the ownership of the funds in question.

We conclude that the district court properly dismissed the case. Furthermore, the district court could have dismissed the case because at the time the suit was filed, the county court exercised exclusive jurisdiction of the subject matter, subject only to the uninvoked rights of transfer of the proceeding. Tex.Prob. Code Ann. § 5 (Vernon 1980 & Supp. 1986). Moreover, the district court could have declined to exercise its jurisdiction if it had concluded that the same issues between the same parties were involved in the cause pending at the time of the filing of the declaratory judgment suit. Texas Liquor Control Board v. Canyon Creek Land Corp., 456 S.W.2d 891 (Tex.1970); see also 30 Tex.Jur.3d Declaratory Relief § 7 (1983).

The judgment of the trial court is affirmed.