Davis v. Shanks

• Decision Date: 25 August 1994
• Docket Number: No. 06-94-00031-CV,06-94-00031-CV
• Citation: 911 S.W.2d 390
• Parties: Jesse L. DAVIS, Appellant, v. Ralph SHANKS, Jackie Shanks, and A.C. Garison, Independent Executor of the Estate of Jesse L. Harris, Appellees.
• Court: Texas Court of Appeals

Page 390

911 S.W.2d 390

Jesse L. DAVIS, Appellant, v. Ralph SHANKS, Jackie Shanks, and A.C. Garison, Independent Executor of the Estate of Jesse L. Harris, Appellees.

No. 06-94-00031-CV.

Court of Appeals of Texas Texarkana.

Argued Aug. 18, 1994.

Decided Aug. 25, 1994.

Ruth Rayner, Dallas, for appellant.

Fred McDaniel, DeSoto, for appellees Mike & Debbie Schaefer and Alice & Wallace Shanks.

Phil Prescott, Prescott & Prescott, Dallas, for appellee A. C. Garison, Independent Executor of the Estate of Jesse L. Harris.

William C. Odeneal, Odeneal & Odeneal, Dallas, for appellees Ralph & Jackie Shanks.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Jesse Davis appeals from a summary judgment entered in this declaratory judgment action to construe a will. The principal issues on appeal are whether material issues of fact exist precluding summary judgment, whether the probate court erred in refusing to consider extrinsic evidence of the circumstances, family, and affairs of the testator, and whether the probate court erred in finding that the stock certificates were part of the estate as opposed to being owned by Davis as the result of an inter vivos gift from the testator. We find no error in the proceeding and affirm the judgment.

Jesse Harris executed a will in December 1992 and died in January 1993. His will was admitted to probate in March 1993, and letters testamentary were issued to A.C. Garison as independent executor of the estate. Harris' estate consists of both real and personal property, including stock certificates found in his home after his death. The stock has an approximate value of $222,000.00. Garison filed a declaratory judgment action in March 1993, seeking construction of a will provision that bequeathed certain real and personal property to Jesse Davis. The pertinent terms of the will involve a specific bequest of property to Jesse Davis and a paragraph leaving the residual estate to the Shankses and Schaefers. ¹ Garison alleged that the bequest to Davis of the contents of the home was ambiguous and uncertain and asked the trial court to determine who should receive the securities--Davis or the residual beneficiaries. Davis, the Shankses, and the Schaefers were all defendants at trial.

Ralph and Jackie Shanks filed a motion for summary judgment, asserting that the bequest to Davis was not ambiguous or uncertain and that the bequest of the "contents" of the home referred only to items ordinarily found within a home and did not include the securities. The trial court granted the Shankses' motion and entered final summary judgment that the securities did not pass to Davis, but instead went to the residuary beneficiaries. ² Attorneys' fees for all parties were ordered paid by the estate.

Davis filed a motion to modify, correct, or reform the judgment, although the contents of the motion, alleging that material issues of fact exist and asking the trial court to set aside its judgment, indicate that the motion more properly should have been labelled as a motion for new trial. See TEX.R.CIV.P. 71 (misnomer of pleadings). That motion was overruled.

Davis contends that the term "contents" is ambiguous and thus a material issue of fact exists precluding summary judgment. When a will is unambiguous, its proper construction is a question of law for the court to determine. Floyd v. Floyd, 813 S.W.2d 758, 759-60 (Tex.App.--El Paso 1991, writ denied). Conversely, the interpretation of a vague or ambiguous document is a question of fact. See Foshee v. Republic Nat'l Bank, 617 S.W.2d 675, 679 (Tex.1981).

Whether or not an ambiguity exists is generally a question of law for the court. Langston v. First Nat'l Bank, 449 S.W.2d 855, 857 (Tex.Civ.App.--Amarillo 1969, no writ). A written instrument is ambiguous only when the application of the rules of interpretation applicable to the instrument leave it reasonably susceptible to more than one meaning. See R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex.1980). In that instance, summary judgment is improper. Id. By granting the Shankses' motion for summary judgment, the trial court implicitly found that the will was not ambiguous.

Oddly enough, the issue of what property is encompassed in a bequest of the "contents" of a home does not seem to be an issue addressed or settled in the Texas courts. There is much out-of-state authority pronouncing that, as a general rule of construction, intangible personal property does not pass under a bequest of the contents of a house. See In re Estate of Shoptaugh, 482 N.E.2d 1142, 1144 (Ind.Ct.App.1985); Old Colony Trust Co. v. Hale, 302 Mass. 68, 18 N.E.2d 432, 433 (1939); In re Estate of Lamb, 445 Pa. 323, 285 A.2d 163, 164 (1971); see generally 80 AM.JUR.2D Wills § 1277 (1975); D.C. Barrett, Annotation, What Passes Under Legacy or Bequest of Things Found or Contained in Particular Place or Container, 5 A.L.R.3d 466 (1966). Thus, absent an expression of contrary intent in the will, the gift of the "contents" of a home is limited to those things ordinarily identified with a home. Shoptaugh, 482 N.E.2d at 1144.

In Linson v. Crapps, for example, the court held that a bequest of "the contents of [the testatrix'] home" was sufficient to convey the household effects and such articles as are usually kept for household and family use, but did not convey government savings bonds found in a dresser drawer in the home. 204 Ga. 264, 49 S.E.2d 523, 524 (1948). This reflects the majority view that only tangible personal property is contemplated when defining the contents of a house. Souder v Johnson, 501 So.2d 745, 746 (Fla.Dist.Ct.App.1987).

Where the meaning of the language used in the will has been settled by usage and sanctioned by judicial decisions, it is presumed to be used in the sense that the law has given to it and should be so construed. Mitchell v. Mitchell, 151 Tex. 1, 244 S.W.2d 803, 806 (1951). Nothing in the will indicates that Harris intended to use the term "contents" differently than in its commonly understood sense. Absent such a contrary intent, the probate court properly gave the bequest its common and ordinary meaning. See Shriner's Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 152 (Tex.1980); White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, 926 (1956). Because the bequest was unambiguous, the construction of the will was a question of law for the probate court, and summary judgment is proper when only a question of law remains. See New York Underwriters Ins. Co. v. State Farm Mut. Automobile Ins. Co., 856 S.W.2d 194, 200 (Tex.App.--Dallas 1993, no writ); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 903 (Tex.App.--Corpus Christi 1991, writ denied). The court construed the will to give Davis all of the property intimately connected with the house and found that the stock certificates passed under the residuary clause of the will.

The trial court's construction of the will is also in keeping with a recent amendment to the Texas Probate Code. See TEX.PROB.CODE ANN. § 58(d)(1) (Vernon Supp.1994). "Contents" now is defined to include only tangible personal property other than titled personal property found inside of or on a specifically bequested or devised item. Id. "Contents" includes clothing, pictures, furniture, coin collections, and other items of tangible personal property that do not require a formal transfer of title or that are located in another item of tangible personal property such as a cedar chest or furniture located on real property. Id. "Titled personal property" includes stock certificates. TEX.PROB.CODE ANN. § 58(d)(2) (Vernon Supp.1994). The amendment to the probate code, however, applies only to the estates of persons who die on or after September 1, 1993. See Act of May 28, 1993, 73rd Leg., R.S., ch. 846, § 35(b), 1993 Tex.Gen.Laws 3337, 3352.

The remaindermen also claim that, because the will specifically excludes the curio cabinet and dolls from the bequest to Davis, the term "contents" is limited to a specific class of property contained within the home, namely the furnishings. Under the rule of ejusdem generis, where words of a general nature follow or are used in connection with the designation of particular objects or classes of persons or things, the meaning of the general words will be restricted to the particular designation. See Carr v. Rogers, 383 S.W.2d 383, 387 (Tex.1964); Erwin v. Steele, 228 S.W.2d 882, 884 (Tex.Civ.App.--Dallas 1950, writ ref'd n.r.e.). The rule is frequently applied to restrict a general bequest; it presumes that the property specified is an indication of the testator's intent. Erwin, 228 S.W.2d at 884. There is one difference in the present situation: unlike the other will construction cases, the specific property enumerated in Harris' will is in the form of an exception to the general bequest, rather than an enumeration of some of the items bequeathed to Davis. See, e.g., Carr, 383 S.W.2d at 387 (request in will that testatrix' "other belongings, dishes, crystal ware, silver, [and] bric a brac" be distributed to relatives with the surplus sold and the proceeds donated to charity did not include real estate, stocks and bonds); Erwin, 228 S.W.2d at 884 (will bequest of testatrix' "personal belongings, such as ... rings, family pictures and other personal belongings" held not to include savings account, stocks, and bonds). The use of the words "curio cabinet" and "Dresden dolls" indicates more particularly what character of property the testator considered as part of the contents of his home.

Davis further complains that the trial court erred in not considering extrinsic evidence offered in response to the motion for summary judgment because that evidence would have allowed the court to more knowledgeably determine the intent of the testator. Testamentary intent is the critical inquiry in will construction cases. See McGill v. Johnson, 799 S.W.2d 673, 674 (Tex.1990); ...