Hancock v. Krause

• Decision Date: 25 August 1988
• Docket Number: No. 01-87-01112-CV,01-87-01112-CV
• Citation: 757 S.W.2d 117
• Parties: Janette Krause HANCOCK, et al., Appellants, v. Florence A. KRAUSE, Administratrix of the Estate of Lorenz W. Krause, Deceased, et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 117

757 S.W.2d 117

Janette Krause HANCOCK, et al., Appellants, v. Florence A. KRAUSE, Administratrix of the Estate of Lorenz W. Krause, Deceased, et al., Appellees.

No. 01-87-01112-CV.

Court of Appeals of Texas Houston (1st Dist.).

Aug. 25, 1988.

Larry P. Urquhart, Steven Haley, Moorman, Tate, Moorman & Urquhart, Brenham, for appellees.

Paul A. Ehlert, Spinn, Ehlert, Spinn, Weisler & Weisler, Brenham, for appellants.

Before EVANS, C.J., and SAM BASS and DUNN, JJ.

OPINION

DUNN, Justice.

This is an appeal from a summary judgment entered in a will construction case.

The testator left a holographic will disposing of his estate as follows:

I. I wont [sic] my beloved 2nd wife Florence A. Krause to have a Live [sic] Estate: I mean for her to have all the income of my Estate as long as she lives. Interests [sic], rents, Dividends, Oil bonus-leases etc and she shall have the right to collect-pay bills, rent, lease as if it was her own. But not the right to sell, give away or in anyway dispose of my property as long as she lives. My will is for her to enjoy all of the income of my Estate as long as she lives and then and then only my my [sic] heirs recieve [sic] heir bequested inheritance.

II. My Sister Ida and heirs to have my 102.77 A. in Schleicher County.

III. My Cousin Helen (Krause) Leonhardt and heirs to have my 97.5A in the J. Winn League.

IV. My 237.82 A. in the A. Baker League to my 2 Step Children Dr. Allen C. Eichler & Yvonne Eichler Blieden share and share alike.

V. My MMCD (6) Series E. Bonds, Bank, Carmine Lbr. S.C.S. Ass'n Shares and all loose monies to Dr. Allen Eichler and Yvonne Eicher Blieden and heirs: share and share alike.

VI. I wont [sic] all of my last debts paid out of all my Est, Land, Series "E" bonds, Shares, etc. I wont [sic] to be burried [sic] as to instruction Billy Sohns has in Prairie Lea cemetary [sic]. If anybody refuses their bequested share then that shall go to the I.R.S.

The will was contested by the appellants, the three children of the testator by his first wife. After a jury found that the testator had testamentary capacity at the time the will was signed, the court admitted the will to probate. The testator's widow later qualified as administratrix with will annexed.

Thereafter, the appellants sought construction of disputed portions of the will under the Texas Uniform Declaratory Judgment Act, Tex.Civ.Prac. & Rem.Code Ann. sec. 37 (Vernon 1986), and the appellees then filed for summary judgment. The court granted the appellee's motion for summary judgment holding that: (1) the interlineation appearing in article IV is a valid alteration, and therefore, the 237.82-acre tract vests in Dr. Allen C. Eichler and Yvonne Eichler Blieden subject to the life estate granted by article I to Florence A. Krause; (2) the term "heirs" in article I does not confer any rights upon the testator's heirs under the law of intestate succession to share in or receive any portion of the estate described in article I after the termination of the life estate to Florence A. Krause, or to those portions of the estate that are described in articles II, III, IV, and V, which vests in those persons expressly named subject to the life estate of Florence A. Krause; (3) that the phrase "and heirs" in articles II, III, and V does not confer any rights upon the testator's heirs in law of intestate succession to share in or receive any portion of the estate described in article I after the termination of the life estate of Florence A. Krause, or to those portions of the estate described in articles II, III, and V; (4) that the phrase "loose monies" in article V includes all legal tender in any form, other than the certificates of deposit and series E bonds separately described in article V, and includes one-half of savings account no. 758-268 and checking account no. 315-366 at Washington County State Bank, one-half of cash in the safety deposit box, all of savings account 00-4912354 at Remington Savings Association, and the coin collection; (5) and that the term "MMCD (6)," appearing in article V describes the certificates of deposit at Remington Savings Association.

In points of error one and two, the appellants contend that, as the testator's children, they are the "heirs" referred to by the testator in his holographic will and that the trial court erred in determining that they did not have a right to share in and receive those portions of the estate devised to "heirs" in articles I, II, III, and V, upon termination of the life estate granted to Florence A. Krause.

A summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Tex.R.Civ.P. 166-A. Construction of a testamentary instrument is a question of law for the court where there is no ambiguity in the instrument and extrinsic evidence of circumstances existing at the time the will was written are undisputed. Brown v. Payne, 142 Tex. 102, 176 S.W.2d 306 (1943).

The basic principle in construing a will is to ascertain the intent of the testator. Sellers v. Powers, 426 S.W.2d 533, 536 (Tex.1968). If the language of the will is unambiguous and plainly expresses that intention, it is unnecessary for the court to apply the technical rules of construction; rather, the court is confined to a mere legal interpretation and enforcement of the testator's intention. Silverthorn v. Jennings, 620 S.W.2d 894, 896 (Tex.Civ.App.--Amarillo 1981, writ ref'd n.r.e.).

In determining the testator's intent, the whole instrument should be considered and, if possible, every provision of the will should be harmonized with all other provisions and given its proper effect. Republic Nat'l Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39 (Tex.1955). Where the general intent of the testator is clear from the whole instrument, any particular terms that are inconsistent with that intent must be rejected or restricted in their application. Wattenburger v. Morris, 436 S.W.2d 234 (Tex.Civ.App.--Fort Worth 1968, writ ref'd n.r.e.).

The term "heirs" in a strict and technical sense refers to those persons designated by law to succeed to the estate of a decedent who dies intestate. Tex.Prob.Code Ann. sec. 3(o ) (Vernon 1980). The appellants acknowledge that the term "heirs" would technically include a surviving spouse, as well as children, but argue that by granting the widow a life estate, the testator indicated his intent to vest in them a remainder interest in the entire estate. We conclude that such a construction would frustrate the intent of the testator and render the provisions of the will inconsistent as a whole.

In section I of the will, the testator provided that upon termination of the life estate in his widow, Florence A. Krause, that "then and then only my my [sic] heirs recieve [sic] heir bequested inheritance." (Emphasis added.) In sections II, III, IV, and V, the testator proceeded to make specific bequests of the property that was subject to the life estate in section I. If the term "heirs," employed in section I, is interpreted to mean "children," as urged by the appellants, then the appellants would succeed to the remainder of the life estate upon its termination, in derogation of those taking specific bequests under sections II, III, IV, and V. Also, if the phrase "and heirs" in section II, III, and V is construed to mean "children," it would logically follow that appellants would be entitled to share in the specific bequests under these sections. This result would be inconsistent with their succession to the entire estate in section I.

We think it is also significant that the testator did not, in article I, specifically devise or bequest the remainder estate to his "heirs." Rather, the testator merely acknowledged that his "heirs" would be entitled, on the death of his wife, to receive their respective shares elsewhere "bequested" in his will.

To harmonize all parts of the will and to give effect to the intent of the testator, the term "heirs" should be interpreted in section I as referring only to the legatees named in the following sections. See Schott v. Oppenheimer, 344 S.W.2d 250 (Tex.Civ.App.--San Antonio 1961, writ ref'd n.r.e.). Further, although a term used in a will should be construed as having the same meaning throughout the will, Weathers v. Roberson, 331 S.W.2d 87 (Tex.Civ.App.--Beaumont 1959, writ ref'd n.r.e.), the will as a whole indicates that the testator's intent in sections II, III, and V, is that the heirs of the specific legatees take the property upon that legatee's death. The phrase "and heirs" in these sections directly follows the name of the specific legatee and does not directly refer to the testator as in section I ("my my heirs"). There is no evidence in the record that any of the specific legatees are deceased, and therefore the meaning of the phrase "and heirs" in these sections is irrelevant to the disposition of the testator's estate.

Points of error one and two are...