Diemer v. Diemer
| Decision Date | 28 August 1986 |
| Docket Number | No. B14-85-643-CV,B14-85-643-CV |
| Citation | 717 S.W.2d 160 |
| Parties | Winifred DIEMER, et al., Appellants, v. Brick Upton DIEMER, Sr., et al., Appellees. (14th Dist.) |
| Court | Texas Court of Appeals |
Russell P. Austin, Houston, for appellants.
Sidney Levine, Eugene Pitman, DeLange, Hudspeth, Pitman & Katz, Larkin C. Eakin, Jr., Jackson, Jackson & Eakin, Houston, for appellees.
Before PAUL PRESSLER, SEARS and CANNON, JJ.
This appeal from a declaratory judgment involves the construction of the will of B.P. Diemer and the will and codicil of his wife, Dora Diemer. The trial court determined that appellant James Scott Diemer, natural son of appellant Winifred Diemer and adopted son of Ted Diemer, deceased, was not entitled to take a testate interest pursuant to the terms of B.P. Diemer's will. However, the court held that appellant James Scott Diemer was entitled to take a testate interest pursuant to the terms of Dora Diemer's will and codicil. Appellants challenge that portion of the trial court's findings construing B.P. Diemer's will, bringing four points of error. Appellees complain of that portion of the judgment construing Dora Diemer's will and codicil in a single cross-point. We affirm the judgment of the trial court in toto.
B.P. Diemer's will is dated February 7, 1956. He died on June 6, 1959. The disputed paragraph the trial court was asked to construe provides the following:
Subject to Paragraph 5 above [involving the distribution of mineral interests of no consequence here], it is my desire and I so direct that the real property owned by me shall pass to and vest in my heirs, as follows:
A. It is my desire that the 35 acre lake, known as the Gin House Lake, on the Dillard Place, shall be jointly held by my beloved daughters, Elizabeth Diemer Malin and Thyra Diemer Dixon, and their descendants, jointly, with right of ingress and egress from and to said lake over the lands now owned by me and given to either of my daughters under this Will.
B. It is my desire and I so direct that the farms known as the Clara Sterling place and the Dillard Place shall pass to and vest in my beloved daughter, Elizabeth Diemer Malin, for and during her natural life, and at the death of my said daughter I give, devise and bequeath the same to her descendants, in fee simple.
C. It is my desire and I so direct that the farm known as the Home Place, which was formerly the J.C. Diemer place, which I bought from Will Sterling, shall pass to and vest in my beloved daughter, Thyra Diemer Dixon, for and during her natural life, and at the death of my said daughter I give, devise and bequeath the same to her descendants, in fee simple.
D. It is my desire and I so direct that the farm known as the Garrett Place shall be divided into two equal portions, with the line of division running North and South, and that the East half of said farm shall pass to and vest in my beloved son, Upton Diemer, for and during his natural life, and at the death of my said son I give, devise and bequeath the same to his descendants, in fee simple.
E. It is my desire and I so direct that the West one-half of the Garrett Place, divided as above stated, shall pass to and vest in my beloved son, Ted Diemer, for and during his natural life, and at his death, to his descendants, in fee simple. In the event that my beloved son, Ted Diemer, should die without issue, then, and in that event, upon his death, the property herein bequeathed to him shall be divided into three equal portions, one share to go to the issue of Elizabeth Diemer Malin, one share to go to the issue of Thyra Diemer Dixon, and one share to go to the issue of Upton Diemer, share and share alike (emphasis added).
The language of Paragraph 6E presents the conflict in this case. Appellants urge in their first three points of error that the court should have permitted James Scott Diemer to inherit the west one-half of the Garrett Place after Ted Diemer's life estate was terminated. Appellants argue that the language of B.P. Diemer's will unequivocally indicates his intent to include adopted children, since the instrument contains no language limiting the term "descendants" to those related by blood to Ted Diemer. Therefore, appellants conclude that Ted Diemer's adopted son should be included in the class of remaindermen entitled to take at the termination of Ted Diemer's life estate. We are not persuaded by appellants' arguments.
It is well settled that the basic rule for courts in interpreting wills is to determine the intent of the testator. Lehman v. Corpus Christi National Bank, 668 S.W.2d 687 (Tex.1984); Gee v. Read, 606 S.W.2d 677 (Tex.1980). If the will itself is unambiguous, courts should not go beyond its specific terms in search of the testator's intent. Frost National Bank v. Newton, 554 S.W.2d 149 (Tex.1977). Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885, 888 (1960). Both appellants and appellees agree that the terms of the B.P. Diemer's will are unambiguous. Our duty, then, is to determine his intent from the terms of the instrument.
Paragraph 6 of the will disposes of B.P. Diemer's real property. In essence, he bequeathed each of his four children a life estate in certain real property. All of the children, with the exception of Ted Diemer, had natural children. The remainder of the property was to go to each of the testator's children's descendants in fee simple. For three of B.P. Diemer's children, the remainder interest to their descendants was all that B.P. Diemer felt obliged to mention. For his son Ted, however, who had no natural children, B.P. Diemer felt it necessary to add the above-quoted language concerning the contingency of Ted Diemer's dying without "issue."
By changing the terminology from "descendants" to "issue" in Ted Diemer's bequest, we believe B.P. Diemer expressed an intent that only blood relatives of Ted Diemer be included in the class of remaindermen. Further, we believe it was B.P. Diemer's intent that, should Ted Diemer die without blood relations, then only those blood relations of B.P. Diemer's other children would be permitted to share in the remainder interest of Ted Diemer's life estate. The only time B.P. Diemer used the term "issue" was in his bequest to Ted Diemer, his only child without natural children. It therefore has special meaning and was not intended to be used interchangeably with "descendants."
When construing the language of a will, the court is obliged to give the words used by the testator their ordinary and commonly understood meaning, unless a contrary intent is clearly expressed. White v. Taylor, 155 Tex. 392, 286 S.W.2d 925 (1956), and authorities cited therein. In the ordinary and usual...
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