Heather Martin and John Brown v. Leonora Brown

ACCEPTED

03-15-00492-CV

8056321

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/2/2015 3:03:30 PM

JEFFREY D. KYLE

CLERK

NO.03-15-00492-CV

FILED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/2/2015 3:03:30 PM

FOR THE STATE OF TEXAS

JEFFREY D. KYLE

Clerk

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 APPELLEE

ORAL ARGUMENT REQUESTED

Mary Black Pearson

TBA No. 02373590

Pearson & Pearson

2109 Bird Creek Terrace

Temple, Texas 76502

Telephone: (254) 778-0699

Facsimile: (254) 778-0500

marybp@pearson-lawfirm.com

ATTORNEY FOR RESPONDENT AND APPELLEE

TABLE OF CONTENTS

I. SUMMARY OF 11ffi ARGU:MENT.......................................... 1

II. ARGU:MENT...................................................................... 1

III. CONCL USION .................................................................... 5

TABLE OF AUTHORITIES

1. Miller v. Wilson. 888 S.W. 2d 158, 160 (Tex. App. - El Paso 1994) ............. 3

2. Turner v. Adams, 855 S. W. 2d 735.738 (Tex. App.-El Paso 1993, no writ).... 3

3. McGill v. Johnson, 799 S. W.2d 673. 674 (Tex. 1990) ............................... 3

4. Riedel v. Kerlick.474 S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ

ref'd no error) .................................................................................... '" ... 3

5. Butfod v. Holliman, 10Texas Reports 560 ............................................. 3

6. Guilliams v. Koonsman. 154 Tex. 401, 279 S. W.2d 579 (Tex. Sup. 1955) ........ 3

7. Singleton v. Donalson, 117 S. W.3d 516,518 (Tex. App.-Beaumont 2003, pet.

denied) ...................................................................................... 3, 4

OTHER MATERIALS

Briefofthe Appellants.............. ..................................................... 1,2

Last Will and Testament ofFranklin Arthur Brown ..................................... 2

Record References

The Record citing convention contained below is used throughout Appellees'

Brief.

2RR Reporter's Record Volume Two of Three Volumes .............. 1

ii

I. SUMMARY OF THE ARGUMENT

The Trial Court correctly interpreted the will to devise a life estate for the

benefit of the surviving spouse, Leonora Brown. Further, the Court construed from

the circumstances existing at the time of the execution of the will as set forth in the

record that the intent of the testator by the use of the word "occupy" did not

necessarily require her to physically reside at the property to have the customary

benefit of a life estate through the "use and enjoyment" of the property. The

record reflects that the parties did not have a residence on the property at the time

the parties married or at the time the will was executed in 2002. The Court

appropriately considered the construction of the will and the circumstances of the

testator and the property in question at the time of the execution of the will.

Testator's homestead was never the property in question and certainly wasn't at the

time of the execution of the will as admitted by Appellant. The surviving spouse

continues to occupy the property by paying the property taxes and leasing the

structures built after the parties married on the property for her use and enjoyment.

(2 RR 21-22,24) The surviving spouse should have a present right of possession

and use of the property as a life estate is traditionally seen with the remainder

interest vested in the Appellants.

II. ARGUMENT

The issue before the Court turns on the Court's interpretation of "occupy"

and how it affects the term of the life estate ofthe surviving spouse. The appellant

does not dispute that a life estate is created but focuses on the rights of possession

and use customary to a life estate to be restricted based on appellant's defmition or

application of the word "occupy." See, Brief of the Appellants, page 3, Summary

of the Argument.

1

The language of the will specifically sets forth the reservation of a life estate

for the benefit of the surviving spouse, Lenora Brown, with the remainder interest

to the children. No specific definition is included in the body of the will to defme

or give the testator's interpretation of the word "occupy" as used in this section of

the will. Clearly the language of the will manifests an intent by the testator,

Franklin Brown, to specifically give his wife a life estate interested "for and during

her natural life ..." and this is not disputed by the parties. The will further qualifies

the bequest with " ...or until such time as she fail to occupy the same." This

qualifYing statement with its use of the word "occupy" is construed by appellant to

mean that the surviving spouse must physically occupy the real property as her

primary residence and ignores a broader sense of the word occupy including the

use and enjoyment of the benefit of the real estate. This ignores the premise

stressed in the Appellant's brief that the parties did not use this particular real

property as a primary residence at the time the will was executed and the fact that

it had no improvements on it at the time that they were married. See, Appellant's

brief, page 1-2. The circumstances after the will was executed are not a factor for

consideration for the Court in determining the intentions of the testator at the

signing of the will.

Further, the bequest of the life estate and the remainder interest IS

conditioned upon the bequest by the first paragraph of II. in the will stating:

"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 I may own at the time of

my death as follows: ...." See, Last Will and Testament of Franklin

Arthur Brown.

2

Therefore, all of the bequests including the bequest of this real property with the

life estate and the remainder interest at dispute are subject to the need to liquidate

the property for the payment of the expenses of administration and the surviving

spouse was named as the Independent Executor to administer the estate.

The nature and extent of the devise of a life estate must be construed by the

language of the will. Interpretation of a will begins with the analysis of the

contents of the document itself supplemented by evidence regarding the situation

or circumstances regarding the execution of the will or the testator's life at the time

of the execution. See, Miller v. Wilson, 888 S.W. 2d 158, 160 (Tex. App. - El

Paso 1994). Such evidence is focused on the testator's intent at the time of

execution. See, id., citing Turner v. Adams. 855 S. W. 2d 735.738 (Tex. App.-EI

Paso 1993, no writ), citing McGill v. Johnson. 799 S. W.2d 673. 674 (Tex. 1990).

A life estate devised to taker A gives a right of possession and enjoyment in

the present while such rights may be followed by a vested interest in the property

or the proceeds from the sale of the property in taker B with a future right of

enjoyment or possession of the remaining property. See, Riedel v. Kerlick.474

S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ ref'd no error), citing

Butfod v. Holliman, 10Texas Reports 560; and Guilliams v. Koonsman, 154 Tex.

401. 279 S. W.2d 579 (Tex. Sup. 1955).

The Donalson case presents a will construction issue which is demonstrative

of the process the Court must use to determine the testator's intent regarding the

nature and extent of the conveyed life estate. In Donalson, the extent of the

conveyed life estate was expanded to include oil and gas royalties and bonuses by

the specific terms of the will. See, Singleton v. Donalson. 117 S. W. 3d 516,518

(Tex. App.-Beaumont 2003, pet. denied). However, this specific language of the

will expanded the extent of the life estate to allow the beneficiary the use of what

is traditionally considered the corpus of an estate and not necessarily the life

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tenant's property for use and enjoyment. See,id. The Court further states that in

the interpretation of the testator's intent from the language of the will that the law

favors the first taker and this premise was relied upon by the Court along with

consideration of the circumstances at the time of the execution of the will. Id. The

Donalson case further states that rental income from leases is traditionally part of

the benefit for a life tenant. Id.

In determining the intent of Franklin Brown in the will that is before the

court, the court must look at the overall content of the bequests and the document

as a whole in addition to considering the facts as presented to the Court regarding

the circumstances of the testator at the time of the execution of the will. The

testator's use of the word occupy at the time of the execution could not be

reasonably construed to require Leonora Brown physically reside at the property

when by the Appellant's own statement of facts the property did not have a

structure in use as a residence or homestead for the testator. Further, the surviving

spouse was not only given the right to "occupy" the property as a life tenant

presumably for her use and enjoyment but she was named the Independent

Executor with the right to dispose of property in order to pay the expenses of the

administration of the estate and clearly the beneficiary in other bequests in the will.

Given the contents of the document as a whole and considering the circumstances

at the time that the will was signed, the Court clearly interpreted the common

meaning of the word "occupy" to include the life tenant's use and enjoyment of the

property for its income potential and her use during her lifetime.

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ill. CONCLUSION

The decision of the trial court should be affirmed. The will clearly gave

Leonora Brown, the surviving spouse, a life estate which is not disputed. The trial

court further determined the intentions of the testator to provide for the use of the

property by the life tenant from the language in the will along with the

circumstances presented in evidence by the Appellants regarding the condition of

the real property surrounding the time that the will was executed and the fact that it

was never the primary residence for the testator and his wife. The trial court

clearly followed the case law by first addressing the specifics in the will and then

the circumstances at the time of the execution.

Respectfully Submitted,

PEARSON & PEARSON

2109 Bird Creek Terrace

Temple, Texas 76502-1083

Telephone: (254) 778-0699

Facsimile: (254) 778-0500

marybp@pearson-Iawfirm.com

5

Certificate of Compliance

I certify that this document brief was prepared with Microsoft Word 2010, and

that, according to the program's word-count function, the sections covered by

TRAP 9.4(i)(I) contain 1433 words.

Certificate of Service

I certify that a true copy of this Brief of the Appellee 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: Heather Martin and John Brown

Lead Attorney: Tad H. Cleaves

Address of Service:250 1 E. Elms Road, Suite A, Killeen, Texas 76542

Method of Service: by fax and electronic service

Date of Service: December 2, 2015

ary ck Pearson

Attorney for Appellee

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