Hudson v. Hopkins

• Decision Date: 30 November 1990
• Docket Number: No. 12-89-00098-CV,12-89-00098-CV
• Citation: 799 S.W.2d 783
• Parties: Carolyn Brock HUDSON and Sam H. Brock, Jr., Appellants, v. F. Brock HOPKINS, Appellee.
• Court: Texas Court of Appeals

Page 783

799 S.W.2d 783

Carolyn Brock HUDSON and Sam H. Brock, Jr., Appellants, v. F. Brock HOPKINS, Appellee.

No. 12-89-00098-CV.

Court of Appeals of Texas Tyler.

Nov. 30, 1990.

Jack H. Harper, Tyler, for appellants.

R.J. Watts, Dallas, for appellee.

BILL BASS, Justice.

This is an appeal from a summary judgment in a will construction case. The testator, W.S. Brock, died on August 3, 1986, leaving a will which distributed the bulk of his estate in the following manner:

I give, devise and bequeath all the residue and remainder of the property that I owned at the time of my death, of whatever nature and character and wherever situated unto F. Brock Hopkins, George C. Hopkins, Jr., and the estate of Dr. Sam H. Brock, Sr., deceased, to be divided equally between the beneficiaries in fee simple. If any of the named beneficiaries shall predecease me, but issue of such deceased beneficiary survive me, the share of my estate that would otherwise pass to such deceased beneficiary of mine shall pass, per stirpes and not per capita to the issue who survive me of the deceased beneficiary. In the event the deceased beneficiary shall die without issue, the deceased beneficiary's share of my estate shall be divided equally among the beneficiaries surviving me or their issue, as above stated.

The executor of W.S. Brock's estate, F. Brock Hopkins, brought an action to construe the Last Will and Testament of W.S. Brock. The main controversy was over the percentage distribution between F. Brock Hopkins, George C. Hopkins, Jr., and the estate of Dr. Sam H. Brock, Sr., deceased. The executor contends that the above-stated will provision instructs him to distribute the estate one-third to F. Brock Hopkins, one-third to George C. Hopkins, Jr., and one-third to the estate of Dr. Sam H. Brock, Sr., deceased (i.e. one-sixth to Carolyn Brock Hudson and one-sixth to Sam H. Brock, Jr.). The appellants, Carolyn Brock Hudson and Sam H. Brock, Jr., are the beneficiaries of the will of Dr. Sam H. Brock, Sr. They contend that W.S. Brock intended by this language to give one-fourth each to F. Brock Hopkins, George C. Hopkins, Jr., Carolyn Brock Hudson, and Sam H. Brock, Jr.

F. Brock Hopkins, the executor, moved for summary judgment in this will construction action. The trial court granted the summary judgment. We affirm the decision of the trial court.

In their first point of error, appellants contend that the trial court erred in granting summary judgment because the appellee/petitioner failed to present adequate evidence in support of the summary judgment. Specifically, the appellants charge that a certified copy of W.S. Brock's will had to be attached to an affidavit or served with the summary judgment motion and affidavit. The appellants argue that documents may not be incorporated by reference in a summary judgment situation.

The appellee responds that the trial court had before it proper evidence to sustain a summary judgment because the will was a certified public record on file at the time of the hearing, pursuant to Rule 166a of the TEXAS RULES OF CIVIL PROCEDURE. He further asserts that the county court was entitled to take judicial notice of the will because the will was part of its own records.

A certified copy of the will was on file with the trial court at the time of the summary judgment hearing, and therefore, the trial court could properly use it as evidence for the summary judgment. Rule 166a(c)(ii) of the TEXAS RULES OF CIVIL PROCEDURE provides that:

The [summary] judgment sought shall be rendered forthwith if ... certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.

A certified copy of the will was filed with the trial court on February 22, 1989. The hearing on summary judgment was held on February 23, 1989. In this type of case, the movant is not required to physically attach a copy of the will to the motion for summary judgment. Kotzur v. Kelly, 791 S.W.2d 254, 257 (Tex.App.--Corpus Christi 1990, no writ); Gensheimer v. Kneisley, 778 S.W.2d 138, 140 (Tex.App.--Texarkana 1989, no writ); Thompson v. Dart, 746 S.W.2d 821, 827 (Tex.App.--San Antonio 1988, no writ).

In Allen v. Berrey, 645 S.W.2d 550, 552 (Tex.App.--San Antonio 1982, writ ref'd n.r.e.), the court dealt with a will which was only before the court as part of the plaintiff's second amended petition. All the parties recognized the existence of the will and made reference to a specific paragraph of the will. The court held that the will was proper summary judgment evidence because all parties seemed to agree on the existence and validity of the will, and because the will was a document admitted into probate in the court below. See Cogdell v. Fort Worth National Bank, 544 S.W.2d 825 (Tex.Civ.App.--Eastland 1976, writ ref'd n.r.e.), cert. denied, 434 U.S. 923, 98 S.Ct. 400, 54 L.Ed.2d 280 (1977).

The facts in the present case are very similar to the facts in Allen. The appellants do not dispute the validity of the will. In fact, both parties rely on the very same clauses. Here, W.S. Brock's will was filed with the court and was also a part of the executor's petition. Further, the will was admitted to probate in the Wood County Court, the court which heard the executor's petition. Thus, the will was proper summary judgment evidence, even though it was not attached to either the appellee's motion for summary judgment or affidavits. The appellants' first point of error is overruled.

In their second and fourth points of error, appellants charge that the terms, "the estate of Dr. Sam H. Brock, Sr., deceased," and "beneficiaries," as used in the phrases "to be divided equally between the beneficiaries in fee simple" and "[i]f any of the named beneficiaries shall predecease me," are ambiguous, and that their interpretation is an issue of material fact. The appellants contend that the gift is not to the estate as a technical entity because it would make no sense to give property to the property of a deceased person. They further claim the evidence shows that the estate of Dr. Sam H. Brock, Sr., had been closed by the time W.S. Brock made his will, demonstrating that the will was latently ambiguous. But, appellants believe the lack of existence of the "estate of Dr. Sam H. Brock, Sr.," does not make the gift void. Devises and conveyances to "estates" have been held valid in Texas as well as in many other jurisdictions. Haile v. Holtzclaw, 414 S.W.2d 916, 927 (Tex.1967); Lott v. Dashiell, 233 S.W. 1103 (Tex.Civ.App --San Antonio 1921), modified on other grounds, 243 S.W. 1072 (Tex.Comm'n App.1922); Cumming v. Cumming, 219 Ga. 655, 135 S.E.2d 402, 10 A.L.R.3d 475 (1964); Leary v. Liberty Trust Co., 272 Mass. 1, 171 N.E. 828 (1930); Bottomley v. Bottomley, 134 N.J.Eq. 279, 35 A.2d 475 (N.J.Ch.1944). Who or what was meant by "estate of Dr. Sam H. Brock, Sr., deceased," appellants argue, is a genuine issue of material fact.

"[W]hether or not an ambiguity exists [in a will] is generally a question of law for the determination of the court." Langston v. First National Bank,...