In re Estate of Prater, No. 12-08-00008-CV (Tex. App. 12/31/2009)
| Decision Date | 31 December 2009 |
| Docket Number | No. 12-08-00008-CV.,12-08-00008-CV. |
| Parties | IN THE ESTATE OF ETHEL E. PRATER, Deceased. |
| Court | Texas Court of Appeals |
Appeal from the County Court of Cherokee County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
Kay Keller, independent executrix of the estate of Ethel E. Prater, deceased, appeals from the trial court's order granting Robert K. Jones's motion to interpret certain provisions of Prater's will. On appeal, Keller presents ten issues. We affirm in part, and reverse in part.
Ethel E. Prater died on November 25, 2006. In her will, she named Keller as the independent executrix of her estate. In section II of the will, Prater made specific bequests to twelve individuals, but stated that "if there should not be cash, savings and/or certificates of deposit to satisfy the cash amounts, each [individual] would then receive their pro rata share of the available amount." In section III of the will, Prater specifically bequeathed to Jones
all of the common stock that I own in the business known as "Specialty Maid, Inc." which owns real estate (including other assets), inventory, cash, checking accounts, certificate of deposits, equipment, buildings, and the loan owed by Specialty Maid, Inc., to me.
Prater's will was admitted to probate, and letters testamentary were issued to Keller. Keller filed an inventory, appraisement, and list of claims ("inventory"), listing as Prater's separate property an undivided one-half interest in "Specially Maid, Inc.," valued at $2,500.00. As a claim of the estate, Keller listed a promissory note from "Specially Maid, Inc." to Prater valued at $79,598.88.1
Jones filed a motion alleging that there was a genuine controversy as to the interpretation and legal effect of certain provisions of Prater's will. He requested a declaratory judgment pursuant to Chapter 37 of the Texas Civil Practices and Remedies Code. He also requested an injunction against Keller, asserting that his interest in the estate was threatened with irreparable harm by Keller's "apparent" plan to fund the specific bequests in section II of Prater's will after the assets of the business are sold, the estate receives its portion from the sale, and the loan to Specialty Maid, Inc. from Prater is repaid to the estate. He stated further that he had no adequate remedy at law.
At a hearing on his motion, Jones asserted that Prater bequeathed to him two separate items: (1) all of the common stock in Specialty Maid, Inc., and (2) the loan owed by Specialty Maid, Inc. to Prater.2 Jones asserted that Prater, not Specialty Maid, Inc., owned the loan, and thus, the only possible construction of the bequest is that Prater bequeathed to him two separate and distinct items. Keller disagreed, noting that the loan was not another gift, but, instead, part of the description of Specialty Maid, Inc. Keller admitted that the loan was not owned by Specialty Maid, Inc., but was an asset of the estate. Her counsel stipulated that, after the loan was repaid, Keller intended to distribute the monies according to the terms of Prater's will, which included paying the obligations of the estate and the specific bequests.3
The trial court granted Jones's motion, and found that Prater bequeathed to Jones two separate assets: (1) all of the common stock in Specialty Maid, Inc., and (2) the loan owed by Specialty Maid, Inc. to Prater. Further, the trial court ordered Keller to immediately disburse the proceeds of the loan to Jones once the loan was repaid to the estate. Finally, the trial court enjoined Keller from using the proceeds of the loan in any manner inconsistent with the order. The trial court filed findings of fact and conclusions of law, including the following conclusions of law:
3. Using the specific terms used by the testatrix in the Last Will and Testament of Ethel E. Prater, deceased, the decedent made two specific bequests in section III of her will specifically bequeathing: (1) all of the common stock owned by the deceased in the business known as "Special Made, Inc.[,]" and (2) bequeathing the separate loan owned by the business know[n] as "Special Made, Inc.[,]" both to Robert Jones.
. . . .
7. Robert Jones is currently in imminent peril of irreparable injury due to the Independent Executrix, Kay Keller's proposed interruption of section III of the Last Will and Testament of Ethel E. Prater, deceased.
8. To prevent the imminent peril of irreparable injury resulting from the Independent Executrix, Kay Keller's proposed interruption of the will, it is necessary for Ms. Keller to be enjoined from using the proceeds of the loan referenced in section III of the will once repaid by "Special Made, Inc.[,]" in any manner other than immediately disbursing said funds to Robert Jones.
This appeal followed.
In her first, second, and third issues, Keller argues that the trial court erred as a matter of law in determining that Prater bequeathed to Jones the loan owed by Specialty Maid, Inc. to Prater. She also contends that the trial court erred as a matter of law in ordering her to disburse the proceeds of the loan to Jones because the loan was not bequeathed to Jones.
In construing a will, the court's focus is on the testatrix's intent. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). This intent must be ascertained from the language found within the four corners of the will. Id. Determining a testatrix's intent from the four corners of a will requires a careful examination of the words used. Id. If the will is unambiguous, a court should not go beyond the will's specific terms in search of the testatrix's intent. Id. In other words, when there is no dispute as to what the written words in a will mean, extrinsic evidence cannot be received (1) to show that the testatrix intended something outside of or independent of such written words; (2) to add words to those in the will; (3) to contradict the language in the will; or (4) to take words away from those in the will. See In re Estate of Schiwetz, 102 S.W.3d 355, 363-64 (Tex. App.-Corpus Christi 2003, pet. denied) (citing Huffman v. Huffman, 161 Tex. 267, 270-73, 339 S.W.2d 885, 888-89 (1960)).
Whether a will is ambiguous is a question of law for the court. Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 359, 373 (Tex. App.-Fort Worth 2003, pet. denied). A will is ambiguous only when the application of established rules of construction leaves its terms susceptible to more than one reasonable meaning. Id. If the court can give a certain or definite legal meaning or interpretation to the words used, the will is unambiguous. Id. Absent ambiguity, the construction of a will is a matter of law. Parker v. Parker, 131 S.W.3d 524, 530 (Tex. App.-Fort Worth 2004, pet. denied). We review such questions of law de novo. Id. When performing a de novo review, we exercise our own judgment and redetermine each legal issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Canal Ins. Co. v. Hopkins, 238 S.W.3d 549, 561 (Tex. App.-Tyler 2007, pet. denied). When reviewing a trial court's judgment, the reviewing court should render the judgment that the trial court should have rendered, except when remand is necessary. TEX. R. APP. P. 43.3.
Wills are accorded a liberal construction. Holliday v. Smith, 458 S.W.2d 106, 110 (Tex. Civ. App.-Corpus Christi 1970, writ ref'd n.r.e.). Since the form used should be subordinated to the substance, considerable latitude is permitted in respect to the informality with which the testatrix may have expressed her intention, and allowance is made for awkwardness in the use of words and in the structure of sentences. Id. We must discover the general scheme of the will, and carry out the dominant or general intent of the testatrix, as far as possible, unless such scheme contravenes an established rule of law or public policy. Long v. Long, 252 S.W.2d 235, 247 (Tex. Civ. App.-Texarkana 1952, writ ref'd n.r.e.). Further, the general intent appearing from the provisions of the will as a whole must prevail, and any particular clause or provision which, taken alone, would indicate a contrary intention, will yield thereto. Id.
Courts may not redraft a will, vary, or add provisions under the guise of construction of the language of the will in order to reflect some presumed intent of a testatrix. Shriner's Hosp. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). Moreover, there is no hard and fast rule that requires that language in a will be dissected and measured with mathematical precision. Neely v. Brogden, 239 S.W. 192, 194 (Tex. Comm'n App. 1922). It is always permissible, and is in fact proper, to look beyond mere grammatical form to what may be termed the internal evidence of the writer's intention. Welch v. Straach, 531 S.W.2d 319, 322 (Tex. 1975). The phraseology, spelling, and punctuation are of little importance in the interpretation of what is said in a will. Maxey v. Queen, 206 S.W.2d 114, 117 (Tex. Civ. App.-Fort Worth 1947, writ ref'd n.r.e.).
The parties to this appeal urge that Prater's will is unambiguous, and we agree. Therefore, we review the will de novo.
In section III of her will, Prater bequeathed to Jones
all of the common stock that I own in the business known as "Specialty Maid, Inc." which owns real estate (including other assets), inventory, cash, checking accounts, certificate of deposits, equipment, buildings, and the loan owed by Specialty Maid, Inc., to me.
Keller argues that, according to basic grammar, the last item in a series follows a conjunction. She points out that, in this specific bequest to Jones, the conjunction "and" is placed before the description of the loan ("and the loan owed by Specialty Maid, Inc., to me."). She...
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