Harris v. Hines

• Decision Date: 08 June 2004
• Docket Number: No. 06-03-00076-CV.,06-03-00076-CV.
• Citation: Harris v. Hines, 137 S.W.3d 898 (Tex. App. 2004)
• Parties: Dallas HARRIS, Individually and as Independent Executor of The Estate of Beverly Hines Harris, Deceased, Appellant, v. Libby HINES, Individually and as Executrix of the Estate of Rodney Hines, Deceased, and Bebe Hines Cole, as Trustee for Cy Rickey Hines, Appellees.
• Court: Texas Court of Appeals

137 S.W.3d 898

Dallas HARRIS, Individually and as Independent Executor of The Estate of Beverly Hines Harris, Deceased, Appellant, v. Libby HINES, Individually and as Executrix of the Estate of Rodney Hines, Deceased, and Bebe Hines Cole, as Trustee for Cy Rickey Hines, Appellees.

No. 06-03-00076-CV.

Court of Appeals of Texas, Texarkana.

Submitted May 12, 2004.

Decided June 8, 2004.

Sam R. Moseley, Attorney At Law, Marshall, for appellant.

Vincent L. Dulweber, Vincent L. Dulweber, PC, Longview, for Libby Hines, Individually and as Executrix of the Estate of Rodney Hines, Decease.

Bailey C. Moseley, Attorney At Law, Marshall, for Bebe Hines Cole as Trustee for Cy Ricky Hines.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

This case involves construction of the last will and testament of Beverly Hines Harris. The question in this appeal is whether a devise by Beverly of real and personal property was adeemed because she did not own the property at her death. The trial court found it was not adeemed. We reverse and render judgment that the property was adeemed.

Factual and Procedural Background

Beverly and Richard N. Cole were partners in a marina, restaurant, and motel called Shady Glade Camp (Shady Glade). Richard was married to Beverly's daughter, Bebe. A dispute arose between Beverly and Richard over the operation of Shady Glade, and a lawsuit ensued. A settlement of the lawsuit resulted in the purchase of Richard's interest in Shady Glade by Beverly's husband, Dallas Harris. Beverly's last will and a "Stipulation of Ownership" between Beverly and Dallas were prepared at the same time the lawsuit was settled. Beverly's will provided for the disposition of Shady Glade as follows:

I will, devise and bequeath all my interest in all that certain real and personal property located near Caddo Lake in northeastern Harrison County, and commonly known as Shady Glade (being the same property described in that certain Stipulation of Ownership executed by Dallas Harris and myself on October 21st, 1994, and recorded under Clerk's File # 10094-H in the Offices of the County Clerk for Harrison County, Texas) together with all additions thereto and substitutions therefor, to my son, Rodney Carroll Hines, and the Trustees of any trust created under this Will for the benefit of my son, Cy Rickey Hines, equally.

I specifically exclude my daughter, Bebe Ann Hines Cole from this bequest due to the difficulties I have previously experienced with her husband, Richard N. Cole, and because I am satisfied that she has adequate means to ensure her future support and wellrbeing. Under no circumstances do I wish Richard N. Cole to have any interest in or control over Shady Glade at any time, now or in the future.

Beverly's will provided for the disposition of all her remaining property in a residuary clause as follows:

If my husband, Dallas Harris, survives me, then I will, devise and bequeath all the rest and residue of my property of every kind and character and wherever situated, to the Trustee hereinafter named, in trust, ....

During the life of my husband, Dallas Harris, the Trustee shall pay the net income from the trust to my husband in convenient payments no less often than quarterly....

Upon the death of my husband, the trust shall terminate and the principal of the trust as it is then constituted, and any accumulated and undistributed net income, shall be delivered to and shall vest as follows:

A. One-third (1/3) to my daughter, Bebe Ann Hines Cole;

B. One-third (1/3) to my son, Rodney Carroll Hines; and

B. [sic] One-third (1/3) to the [sic] Rodney Carroll Hines and Bebe Ann Hines Cole, as Co-Trustees, in trust for the benefit of my son, Cy Rickey Hines, ....

The "Stipulation of Ownership" referred to in Beverly's will recited that Beverly and Dallas each purchased a one-half interest in Shady Glade with separate property, and that each owned an undivided one-half interest in Shady Glade, both real and personal property, as their respective separate property. The "Stipulation of Ownership" described with great detail both the real and personal property comprising Shady Glade.

On April 1, 1999, Beverly and Dallas sold their interests in Shady Glade to a third party in exchange for a promissory note of $150,000.00. Beverly died March 29, 2001. She was survived by her husband, Dallas, her daughter, Bebe, and her two sons, Rodney and Cy Rickey. At the time of her death, the promissory note remained owing in the amount of $138,000.00. After Beverly died, her son Rodney also died, leaving his wife, Libby Hines, as executor of his estate.

Dallas, as executor of Beverly's estate, filed a petition in court requesting a declaration that the bequest of the Shady Glade property under Beverly's will was adeemed and could no longer be fulfilled. Libby, as executor of Rodney's estate, filed an answer and counterclaim requesting the trial court to declare that Beverly's devise of Shady Glade also provided for the proceeds from its sale, and that the promissory note given in exchange for Shady Glade was proceeds of the specific bequest and should not be adeemed. Both parties moved for summary judgment.¹ The trial court found that Beverly's devise of Shady Glade to her two sons was not ambiguous and was not adeemed. The trial court granted to Libby, and to Bebe, as trustee for Cy Rickey, an equal portion of Beverly's remaining one-half interest in the promissory note. The trial court denied Dallas' motion for summary judgment.

Standard of Review

The movant for traditional summary judgment must establish that there is no genuine issue of material fact and that the movant is entitled to summary judgment as a matter of law. See TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). In determining whether there is a disputed material fact issue precluding summary judgment, all admissible evidence favorable to the nonmovant will be taken as true; every reasonable inference must be indulged in favor of the nonmovant, and any doubts resolved in the nonmovant's favor. Nixon, 690 S.W.2d at 548-49. When both sides move for summary judgment and the trial court grants one motion and denies the Other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex.2002). The reviewing court should render the judgment the trial court should have rendered. Id.

Libby contends the standard of review of a trial court's determination that a will is unambiguous is reviewed under an abuse of discretion standard. See Nail v. Thompson, 806 S.W.2d 599, 601-02 (Tex. App.-Fort Worth 1991, no writ). It is uncontroverted, however, that the determination of whether an instrument such as a will is ambiguous is a question of law. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998); Sammons v. Elder, 940 S.W.2d 276, 280 (Tex. App.-Waco 1997, writ denied). We review questions of law de novo. See generally El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999); Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 353 (Tex.App.-Texarkana 2000, no pet.) (whether deed is ambiguous is question of law subject to de novo review). Therefore, we will review the trial court's determination of whether the will is ambiguous under a de novo standard of review. In a de novo review, no deference is accorded to the lower court's decision. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998).

Will Construction

In construing a will, the court must focus on the testator's intent. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000). In so doing, "[t]he intent must be drawn from the will, not the will from the intent." Id. at 640. This intent must be ascertained from the language found within the four corners of the will. Shriner's Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). Therefore, when the intent of the testator is apparent on the face of the will, extrinsic evidence is not admissible to show a contrary meaning. Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267, 273 (1961). In determining the testator's intent, the court focuses not on what the testator intended to write, but the meaning of the words actually used. Lang, 35 S.W.3d at 639. In this light, courts must not redraft wills to vary or add provisions "under the guise of construction of the language of the will" to reach a presumed intent. Stahl, 610 S.W.2d at 151.

If the will is unambiguous, the court should not go beyond the specific terms to ascertain the requisite intent. Lang, 35 S.W.3d at 639. If, on the other hand, the meaning of the instrument is uncertain or "reasonably susceptible to more than one meaning," the instrument is ambiguous and extrinsic evidence should be considered to ascertain the testator's intent. See Davis v. Shanks, 898 S.W.2d 285, 286 (Tex.1995); Eckels v. Davis, 111 S.W.3d 687, 694 (Tex.App.-Fort Worth 2003, pet. denied); Myrick v. Moody, 802 S.W.2d 735, 738 (Tex.App.-Houston [14th Dist.] 1990, writ denied). Evidence of the testator's situation, the surrounding circumstances, and like indicia which enable the court to place itself in the shoes of the testator at the time the document was executed may be admissible. Lang, 35 S.W.3d at 639. This is so because it may facilitate the determination of intent at that time. See id.

Ademption

"[A]demption describes the extinction of a specific bequest or devise because of the disappearance of or disposition of the subject matter given from the estate of the testator in his lifetime." Stahl, 610 S.W.2d at 148. Unless the testator specifically provides otherwise in the will, the sale or removal of a specific bequest from the estate adeems the devise or bequest. Id. at 150. A will speaks at the time of the testator's death, and only the estate the testator then possessed passes under the terms of the...