The opinion
ACCEPTED
03-15-00492-CV
7645485
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/2/2015 3:50:13 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00492-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
11/2/2015 3:50:13 PM
IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
FOR THE STATE OF TEXAS
HEATHER MARTIN AND JOHN BROWN
V.
LEONORA BROWN
On Appeal From the County Court at Law Number 1 of Bell County, Texas
BRIEF OF THE APPELLANTS
ORAL ARGUMENT REQUESTED
Tad H. Cleaves
TBA No. 24062667
Roberts & Roberts, LLP
2501 E. Elms Road, Suite A
Killeen, Texas 76542
Telephone: (254) 526-7541
Facsimile: (254) 526-5656
tcleaves@robertslegalfirm.com
ATTORNEY FOR PETIONERS AND APPELANTS
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IDENTITY OF PARTIES AND COUNSEL
Petitioners / Appellants:
Heather Martin and John Brown
Trial and Appellate Counsel for Petitioners / Appellants:
Tad H. Cleaves
TBA No. 24062667
Roberts & Roberts, LLP
2501 E. Elms Road, Suite A
Killeen, Texas 76542
Telephone: (254) 526-7541
Facsimile: (254) 526-5656
tcleaves@robertslegalfirm.com
Respondent / Appellee:
Leonora Brown
Trial and Appellate Counsel for Respondent / Appellee:
Mary Black Pearson
TBA No. 02373590
Pearson & Pearson, LLP
2109 Birdcreek Terrace
Temple, Texas 76502
Telephone: (254) 778-0699
Facsimile: (254) 778-0500
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TABLE OF CONTENTS
I. STATEMENT OF FACTS 1
A. Family History and Property 1
B. Will Provisions at Issue 2
C. Failure to occupy San Saba Property and Lease of San Saba
Property 2
II. SUMMARY OF THE ARGUMENT 3
III. ARGUMENT 4
A. Standard of Review 4
B. Mr. Brown’s testamentary intent is unambiguous from the plain
language of his Last Will and Testament. 5
C. Testator’s use of the term “occupy” does not create ambiguity. 6
D. The Trial Court erred when it added an “abandonment”
requirement to the devise of the San Saba Property. 9
E. The ruling cited by the trial court in Singleton v. Donalson, 117
S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) does
not support granting Appellee an indefeasible life estate. 10
IV. CONCLUSION 13
V. APPENDIX 14
ii
TABLE OF AUTHORITIES
Texas State Cases
Harris v. Hines,
137 S.W.3d 898 (Tex.App. – Texarkana 2004, no pet.) 4
Steger v. Muenster Drilling Co.,
134 S.W.3d 359 (Tex.App. – Fort Worth 2003, pet. Denied) 4
San Antonio Area Foundation v. Lang,
35 S.W.3d 636 (Tex. 2000) 5, 7, 9, 13
Lehman v. Corpus Christi Nat’l Bank,
668 S.W.2d 687 (Tex. 194) 5
Spiegel v. KLRU Endowment Fund,
228 S.W.3d 237 (Tex. App. – Austin 2007, no writ) 5
Brown v. Johnson,
118 Tex. 143 (Tex. 1929) 8, 9
Ellis et al. v. Patrick et al.,
93 S.W.2d 1201 (Tex. App.-- Waco 1936, no writ) 8, 7
Singleton v. Donalson,
117 S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) 10, 11, 12, 13
iii
Statutes
State Statutes
Tex. Prop. Code § 5.008 7
Tex. Prop. Code § 22.021 8
Record References
The Record citing convention contained below is used throughout
Appellants’ Brief.
CR ___ Clerk’s Record
2 RR ___ Reporter’s Record Volume Two of Three Volumes
3 RR ___ Reporter’s Record Volume Three of Three Volumes
App. Tab ___ Appendix
iv
STATEMENT OF THE CASE
Heather Martin and John Brown (collectively “Appellants”) make this
appeal in response to the trial court’s Order Regarding Declaratory
Judgment and Complaint for Correction of the Inventory (CR 17, 18).
Appellants were two of the three heirs to the Estate of Franklin Arthur
Brown (the “Estate”), and Leonora Brown, Appellee in the instant matter, is
both the third heir to the Estate and the executor of the Estate. In the trial
court Appellants petitioned for a declaratory judgment that certain Estate
real property be granted to Appellants in fee simple due to Leonora Brown’s
failure to “occupy” the property as required in the Last Will and Testament
of Franklin Arthur Brown (the “Will”) (CR 3-6). After a bench trial, the
trial court ruled in favor of Appellee, and Appellants are appealing that
ruling.
ISSUE PRESENTED
1. Did the trial court err by ruling that the Will grants an indefeasible life
estate in the real property at issue to Appellee?
v
I. STATEMENT OF FACTS
A. Family History and Property
Franklin A. Brown (“Mr. Brown”) passed away on March 23, 2013.
Approximately eleven years earlier, on August 28, 2002, Decedent executed
a Last Will and Testament (“Will”), which was admitted to probate by the
trial court on July 25, 2014. At the time he executed his Will, Decedent was
married to Leonora Brown, Appellee herein, and had two living children
from an earlier marriage, who are the Appellants herein. Appellee and
Appellants are the three heirs named in the Will. App. Tab 3.
When they married, Mr. Brown and Appellee lived together with John
Brown, Mr. Brown’s son, in an apartment in Mr. Brown’s family’s funeral
home in San Saba, Texas (2 RR 14). They then moved together to an
apartment in Killeen, Texas (Id. at 13-14), and in April 2004, Mr. Brown
and Appellee (without John Brown) moved into a home in Copperas Cove,
Texas (the “Copperas Cove Home”) (Id. at 20), where they continued to live
until Mr. Brown’s death. Id. Throughout this time period, Mr. Brown owned
a tract of land in San Saba he received prior to his marriage to Appellee (the
“San Saba Property”). CR 10. When Mr. Brown and Appellee married, there
were no structures on this property. 2 RR 15. After their marriage in 2000
and before 2004, a sheet metal building with a shop and apartment was
1
constructed on the San Saba Property. 2 RR 15. John Brown lived alone in
this building for a period of time in 2004. 2 RR 15.
B. Will Provision At Issue
The Will, which is attached as Exhibit A in the Appendix hereto,
makes provisions for Mr. Brown’s property to be split among his wife and
two children, who are named in the Will. App. Tab 3. In Paragraph II(c) of
the Will, Mr. Brown devises, “Unto my wife for and during her natural life
or until such time as she shall fail to occupy the same, all real property
which I own in the town of San Saba, Texas. In the event she shall
predecease me or cease to occupy said property, then in either of these
events, said real property shall vest in my children, share and share alike
(Emphasis Added).” App. Tab 3. Mr. Brown also leaves the residue of his
estate in equal shares to his wife and two children. App. Tab 3.
C. Failure to Occupy San Saba Property and Lease of the San Saba
Property
Since moving to the Copperas Cove Home in 2004, Appellee has
lived there continuously. 2 RR 20. She also claims the Copperas Cove Home
as her homestead for tax purposes, and she intends to continue to live in the
Copperas Cove Home. 2 RR 20-21. Furthermore, on April 4, 2015, Appellee
2
entered into a written Lease Agreement (the “Lease Agreement”) to lease the
San Saba Property for six-months. 3 RR Ex 1. Appellee plans to use the
income derived from leasing the San Saba Property to, among other things,
“provide [her] with a little bit of income.” 2 RR 26. No evidence was
presented to the trial court that Appellee ever intends to reside in, live upon,
occupy or use the San Saba Property.
II. SUMMARY OF THE ARGUMENT
The Last Will and Testament of Franklin Arthur Brown is a simple
and unambiguous document. It runs four pages and disposes of all Mr.
Brown’s property in just a few paragraphs. App. Tab 3. Mr. Brown’s
testamentary intent is apparent on the face of the document, and Appellants
want it to be construed according to the plain language in which it is written.
The will provision at issue herein deals with title to real property in
San Saba, Texas. The provision as it reads grants a life estate in real property
to Appellee conditioned on Appellee “occupying” the property. App. Tab 3.
The text of the Will creates a defeasible life estate subject to an executory
limitation. Appellants argue that Mr. Brown’s testamentary intent is clear
from the language of the Will, and because the occupancy requirement has
not been met by Appellee, her rights to the property are forfeit.
3
In order for the trial court to look outside the four corners of the Will
for testamentary intent, the Will must contain some ambiguity of language.
The use of the word “occupy” and Mr. Brown’s inclusion of a defeasible life
estate subject to an executory limitation does not create ambiguity in his
Will, so the trial court should not have looked outside the Will to determine
Mr. Brown’s testamentary intent. Furthermore, the addition by the trial court
of a condition that Appellee actively abandon the property, in the absence of
any language in the Will or evidence in the record to support such a ruling,
was improper.
III. ARGUMENT
A. Standard of Review
The question of whether terms of a will are ambiguous is a question of
law. Harris v. Hines, 137 S.W.3d 898, 903 (Tex.App. – Texarkana 2004, no
pet.). If the court can give a definite legal meaning or interpretation to the
words used, the will is unambiguous, and the court should construe it as a
matter of law. Steger v. Muenster Drilling Co., 134 S.W.3d 359, 373
(Tex.App. – Fort Worth 2003, pet. Denied). Questions of law are reviewed
de novo. Harris, 137 S.W.3d at 903. In the instant case, the trial court’s
interpretation of an unambiguous provision of Mr. Brown’s Will is at issue,
so the Appellate Court’s review should be a de novo standard.
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B. Mr. Brown’s testamentary intent is unambiguous from the plain
language of his Last Will and Testament.
In his Last Will and Testament, Mr. Brown was unambiguous with the
disposition of his property, so the trial court abused its discretion by looking
to extrinsic evidence for Mr. Brown’s testamentary intent. If a will is
unambiguous, a trial court should not go beyond specific terms of the will in
search of the testator’s intent. San Antonio Area Foundation v. Lang, 35
S.W.3d 636, 639 (Tex. 2000); Spiegel v. KLRU Endowment Fund, 228
S.W.3d 237, 243 (Tex. App. – Austin 2007); Lehman v. Corpus Christi Nat’l
Bank, 668 S.W.2d 687, 688 (Tex. 1984). When there is no dispute about the
meaning of words used in a will, extrinsic evidence should not be received
to show that the testator intended something outside the words used. San
Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). In
Section II (c) of his Last Will and Testament (“Will”), Mr. Brown makes the
following devise:
Unto my wife for and during her natural life or until such time as she
fail to occupy the same, all real property which I own in the town of
San Saba, Texas. In the event she shall predecease me or cease to
occupy said property, then in either of those events, said property
shall pass to and vest in my children, share and share alike. App. Tab
3.
5
From the plain language of the Will, Mr. Brown is making a making a gift of
real property to his wife for her lifetime, but for her to receive this devise,
Mr. Brown places the condition that his wife “occupy” the real property.
This condition is evidently so important to Mr. Brown, that he repeats the
condition twice. On its face, a defeasible life estate is being granted subject
to an executory limitation. Mr. Brown’s wife would receive the real property
if she (1) survived Mr. Brown and (2) occupied the property. Once she (1)
dies or (2) ceases to occupy said property, according to the plain language of
the Will from which Mr. Brown’s testamentary intent should be derived, the
real property passes to Mr. Brown’s children. In the instant case, the trial
court, granted Appellee an indefeasible life estate. CR 17-18. In its Findings
of Fact & Conclusions of Law, did not conclude that anything in the Will
was ambiguous. CR 20-22. In the absence of ambiguity, the trial court erred
by granting Appellee an indefeasible life estate, contrary to the unambiguous
language of Mr. Brown’s Will, and Appellants request this Court reverse the
trial court’s judgment.
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C. Testator’s use of the term “occupy” does not create ambiguity.
Testator’s requirement that the gift of the San Saba Property to
Appellee be conditioned on her occupying the real estate does not create an
ambiguity in the Will.
In the Lang case, the Lang family was claiming that the term “real property”
was an ambiguous term in a will. Lang, 35 S.W.3d at 641. Quoting from that
case, “…if ‘real property’ can be made ambiguous or unclear by extrinsic
evidence, then few – if any – terms in the legal lexicon cannot be made
unclear by extrinsic evidence.” Id. Likewise, “occupy” in a real estate
context is not an ambiguous or unclear word, and to hold otherwise would,
as with the term “real property” in the Lang case, undermine the use of this
term in legal contexts.
When used in regards to real property, to “occupy” property always
requires actual possession of the real estate. In Texas statutes and case law,
“occupancy” means actually living on a piece of real estate or in an
apartment or house. Examples of the use of “occupy” to indicate mere
ownership of land are difficult and perhaps impossible to find. Section 5.008
of the Texas Property Code requires an owner of real property who is selling
his or her property to disclose whether he or she “occupies” or does not
“occupy” the real estate being sold – indicating a relationship between
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occupancy and residing within or on a piece of real estate. Tex. Prop. Code §
5.008. Section 22.021 of the Texas Property Code allows a person who is
not the owner of piece of real property to be reimbursed for improvements to
that property made while he or she used and occupied the property, again
indicating a relationship between occupation of land and actually being
present on and in physical possession of that land. Tex. Prop. Code § 22.021.
The Texas Supreme Court held that in a landlord – tenant relationship, it is
“indispensible” that the intention of the landlord is to dispossess himself of
the premises and the tenant occupy them. Brown v. Johnson, 118 Tex. 143,
147 (Tex. 1929). In Ellis et al. v. Patrick et al., the Court of Civil Appeals of
Texas, Waco, discussed occupancy of land in the case of a homestead
dispute, creating a relationship between “occupancy” and “possession.” Ellis
et al. v. Patrick et al., 93 S.W.2d 1201 (Tex. App.-- Waco 1936). Further,
Merriam-Webster Online defines “Occupy” as meaning “to live in (a house,
apartment, etc.)” and “to reside in as an owner or tenant.” “Occupy” Def. 4.
Merriam-Webster Online. Merriam-Webster, n.d. Web. 15 June 2015. In the
instant case, Mr. Brown places an occupancy requirement on his wife’s
ability to maintain her life estate of his San Saba Property. According to her
own testimony, Appellee does not currently reside on the San Saba Property
and has not resided on the San Saba Property since before Mr. Brown’s
8
death. 2 RR 20. Furthermore, the San Saba Property is currently leased to a
tenant who has rights to possession of the San Saba Property. 3 RR Ex. 1.
Given the relationship between occupancy and physical possession of or
residence in real estate, Appellee’s lack of physical possession due to her
residence in Copperas Cove, Texas indicates her failure to occupy the San
Saba Property, thereby ending her claim to a life estate in it under the terms
of the Will. That, along with the lease of the San Saba Property, where,
under the Brown v. Johnson ‘rule’ above, a landlord cannot occupy leased
property, Appellee does not occupy the San Saba Property, and the trial
court committed reversible error in granting her an indefeasible life estate.
D. The Trial Court erred when it added an “abandonment”
requirement to the devise of the San Saba Property.
In its 6th Conclusion of Law, the trial court concluded that Appellee’s
life estate “…would remain so unless she abandoned the property.” CR 22.
As stated above, unless an ambiguity exists in a Will, the intention of the
testator must be determined from the actual text of the document. Lang, 35
S.W.3d at 639. By adding the requirement that Appellee “abandon” the San
Saba Property before Appellants can take ownership, the trial court is
inserting a new provision into the Will. Mr. Brown was clear in his will that
9
once his wife ceased to occupy the San Saba Property, fee simple ownership
would pass to his children. No evidence was presented to the trial court that
Mr. Brown intended to use the term “abandonment” in place of “occupy,” so
the trial court erred when granting Appellee a life estate and including this
additional condition and hurdle to Appellants receipt of ownership.
E. The ruling cited by the trial court in Singleton v. Donalson, 117
S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) does not support
granting Appellee an indefeasible life estate.
The ruling in Singleton v. Donalson cited in the trial court’s
Conclusions of Law (CR 21 – 22) and relied on to grant Appellee an
indefeasible life estate does not apply to the instant case. In the Donalson
case, Ruth Hooks Donalson executed a will devising a life estate in some
property to her spouse, George Donalson, III, with a “reversionary interest”
to other relatives named in the will. Singleton v. Donalson, 117 S.W.3d 516,
517 (Tex. App. – Beaumont 2003, pet. Denied). The holders of the
reversionary interests sued Mr. Donalson for wasting assets. Id. Summary
judgment was granted in favor of Mr. Donalson, and the other relatives
appealed that decision. Id. The testamentary language from Ms. Donalson’s
will is excerpted below:
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My separate real property, hereinabove referred to in III A., including
fee, surface, minerals, royalties, and mixed, and hereby intending to
include all the rest, remainder and residue of my estate, not heretofore
disposed of, I hereby give, devise and bequeath to my beloved
husband, George E. Donalson, III., a Life Estate. My said husband is
to enjoy the use and benefits of said properties, including the income
derived from said properties, said income to become his separate
property as paid. As stated, my said husband is to enjoy the use and
benefits of said properties and to do with as he sees fit for the rest
of his life, with reversion of the corpus of said properties upon his
death [to other named relatives]. Id. at 517-518.
In the Donalson case, a wife’s will granted a life estate in property to her
husband with the explicit qualification that he could do with that property
“as he sees fit for the rest of his life.” Id. The Appellate Court agreed with
Mr. Donalson and the trial court and upheld the trial court’s judgment in his
favor. The Appellate Court relied on the (1) unambiguous language of the
devise and (2) the intent of the testator as expressed in the plain language of
her will to make its ruling. Id. at 518-519. The trial court in the instant case
interprets Donalson to support granting an indefeasible life estate to
Appellee, because “the first taker of an interest will be construed to have
been granted ‘the greatest estate which they, by a fair construction in
harmony with the will as a whole, are capable of passing.’” CR 21-22. While
11
that quote is lifted from Donalson, it is not applied correctly in the instant
case. The Appellate Court in Donalson was very deferential to the text of
Ms. Donalson’s will. Even where it overturned default property rules
concerning the waste of the corpus of a life estate, because Ms. Donalson
was so specific in the wording of her devise, the Appellate Court was
confident that Ms. Donalson’s intent was ascertainable from the plain text
and enforced the will as written. Donalson, 117 S.W.3d at 517-520. In the
case now before the Court, Mr. Brown was also very specific with his desire
that his wife receive a life estate to the San Saba Property conditioned upon
her occupying the property. He wrote the occupancy requirement into the
will twice. App. Tab 3. To disregard Mr. Brown’s plain and unambiguous
desire that the life estate he granted to Appellee in his will be conditioned on
her occupancy of the property is reversible error, and Appellants ask this
Court to so reverse the trial court’s grant of an indefeasible life estate to
Appellee.
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IV. CONCLUSION
Appellants request that this Court hold that:
(1) The Will being construed in this case is unambiguous on its face,
and the trial court erred by going beyond the plain language of the text when
determining the testator’s intent in this Will. San Antonio Area Foundation
v. Lang, 35 S.W.3d 636, 639 (Tex. 2000).
(2) The term “occupy” as used in the Will is not an ambiguous term,
that to “occupy” the San Saba Property would require maintaining a
residence in or physical possession of the San Saba Property, and that the
trial court erred by granting Appellee a life estate in the San Saba Property
contrary to the Will’s occupancy requirement.
(3) The devise of a defeasible life estate subject to an executory
limitation does not create ambiguity, and the trial court committed reversible
error when it (1) ignored the intent of the testator by substituting other
requirements (such as abandonment of the property) and (2) disregarded the
unambiguous terms of the devise. Singleton v. Donalson, 117 S.W.3d 516,
518-519 (Tex. App. – Beaumont 2003, pet. Denied).
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V. APPENDIX
Order Regarding Declaratory Judgment and Tab 1
Complaint for Correction of the Inventory
Findings of Fact & Conclusions of Law Tab 2
Last Will and Testament of Franklin Arthur Brown Tab 3
Respectfully Submitted,
ROBERTS & ROBERTS, L.L.P.
By
Tad H. Cleaves
State Bar No. 24062667
2501 East Elms Road, Ste A
Killeen, Texas 76542
(254) 526-7541
Fax: (254) 526-5656
tcleaves@robertslegalfirm.com
Certificate of Compliance
I certify that this document brief/petition was prepared with Microsoft Word
2012, and that, according to that program’s word-count function, the
sections covered by TRAP 9.4(i)(1) contain 3,748 words.
/s/ Tad H. Cleaves _______________
Tad H. Cleaves
Attorney for Appellants
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Certificate of Service
I certify that a true copy of this Brief of the Appellants was served in
accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each
party or that party’s lead counsel as follows:
Party: Leonora Brown
Lead attorney: Mary Black Pearson
Address of service: 2109 Birdcreek Terrace, Temple, Texas 76502
Method of service: by fax and by electronic service
Date of service: November 2, 2015
/s/ Tad H. Cleaves _______________
Tad H. Cleaves
Attorney for Appellants
15
Tab 1
1
17
18
Tab 2
2
20
21
22
Tab 3
3
LOUIS M. CRUMP
Attorney at Law
P. O . . S e * ^ > 3 S - .
San Saba, Texas 76877
#
L A S T W I L L A N D T E S TA M E N T
O F
FRANKLIN ARTHUR BROWN
I, FRANKLIN ARTHUR BROWN, of San Saba County, Texas, being of sound and
disposing mind and memory and above the age of eighteen (18) years do hereby make, declare
and publish this my Last Will and Testament, hereby revoking all previous wills and codicils, if
any, by me at any time heretofore made, to-wit:
I.
I am married to Leonora Brown and all references in this will to "my wife" are to her.
I have two children by a previous marriage, John Franklin Brown, II and Heather Elaine Brown.
All references in this will to "my children" are to them.
II.
After payment of my said debts including funeral expenses, expenses of last illness, and
expenses which may be incurred in connection with the administration of my estate, I do hereby
give, devise and bequeath all property, both real and personal, which 1 may own at the time of my
death, as follows;
a) Unto my wife and my children each a one-third (1/3) interest in the balance owing to
me on promissory note executed by Howell-Doran Funeral Home payable to me.
b) Unto my wife all accounts which I have in Arrowhead Bank, San Saba, Texas.
c) Unto my wife for and during her natural life or until such time as she shall fail to occupy
the same, all real property which I own in the town of San Saba, Texas. In the event she shall
predecease me or cease to occupy said property, then in either of those events, said real property
shall pass to and vest in my children, share and share alike