In re in the Estate of Neal

• Decision Date: 09 November 2017
• Docket Number: NO. 02-16-00381-CV,02-16-00381-CV
• Parties: IN THE ESTATE OF LARRY RONALD NEAL, DECEASED
• Court: Texas Court of Appeals

IN THE ESTATE OF LARRY RONALD NEAL, DECEASED

NO. 02-16-00381-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

November 9, 2017

FROM COUNTY COURT AT LAW NO. 2 OF WISE COUNTY

TRIAL COURT NO. PR-3670

MEMORANDUM OPINION¹

I. Introduction

Larry Ronald Neal executed a will in which he bequeathed his personal property to his niece, Valorie Jean White. That much is undisputed. The determinative question in this appeal is whether under the will, Larry also devised his real property to Valorie. We conclude that he did not. We therefore reverse the part of the trial court's final judgment that awarded Larry's real property toValorie and determined that no part of Larry's estate passed by intestacy, and we render judgment that Larry's real property passed through intestacy to his heirs.

II. Facts

Larry died in 2014. Upon his death, Appellee Gary Neal, Larry's brother and his estate's executor, filed an application to probate Larry's 2009 will. The will contained the following language:

I, Larry Ronald Neal, . . . do hereby make . . . this to be my Last Will and Testament . . . .

Article I

I direct my Executor to pay my judicially enforceable debts, funeral expenses[,] and the administrative expenses of my estate as soon after my death as practicable. . . .

Article II

I do give and bequeath to my niece, Valorie Jean (Neal) White, all my personal effects and all my tangible personal property, including automobiles, hangars, aircraft, fly-drive vehicles, patents, companies, and all other things owned by me at the time of my death, including cash on hand in bank accounts in my own name, or companies['] names, or securities, or other intangibles.

. . . .

Article IV

I hereby grant to my Executor the continuing absolute, discretionary power to deal with any property, real or personal, held in my estate or in any trust, as freely as I might in the handling of my own affairs. Such power may be exercised independently and without the prior or subsequent approval of any court or judicial authority, and no person dealing with the Executor shall be required to inquire into the propriety of any of their actions. . . . I hereby grant to my Executor the following specific powers and authority in addition to . . . powers conferred by law:

A[.] To make distributions in cash or specific property, real or personal . . . .

B. To sell, transfer[,] or convey, at public or private sale[,] . . . any property, real or personal, . . . constituting a part or all of my estate . . . .

C. To compromise and settle claims in favor of or against my estate.

D. To hold and exercise any and all powers . . . conferred by law.

In September 2015, the trial court signed an order that admitted the will to probate, appointed Gary as independent executor, and directed the court's clerk to issue letters testamentary.

The next month, Appellant Lori Neal Freitag, Larry's daughter, filed a petition for a declaratory judgment under chapter 37 of the Texas Civil Practice and Remedies Code.² In her pleading, Lori contended that Article II of Larry's will entitled Valorie to receive Larry's personal property only. Lori argued that the will did not dispose of Larry's real property and that the real property therefore passed by intestacy to her and to Larry's two sons. She also pleaded that Gary, as independent executor, was taking the opposite position.

Gary filed an answer to Lori's petition and, through a counterclaim, also sought declaratory relief. He argued that because Article II of the will gave Valorie "all other things owned" by Larry, the will entitled Valorie to receive Larry's real property. He also contended that Article IV supported his interpretation of Article II because Article IV gave him the authority to sell andmanage "real or personal" property. He asserted that Larry's will "unambiguously contemplate[d] disposition of the entirety" of Larry's estate.

The trial court held a bench trial on the parties' requests for declaratory relief.³ After the trial, the court rendered judgment in Gary's favor. The court found that all of Larry's real and personal property passed to Valorie under the will.

Lori raises two issues on appeal: the trial court erred by finding that Larry's real property passed to Valorie under the will, and the trial court erred by considering extrinsic evidence to interpret the will's language. With respect to the first issue, she argues that Article II, the will's sole provision expressly relating to the disposition of Larry's property, omits any reference to real property and unambiguously bequeaths only personal property. In response, Gary contends that the will contains "gift language encompassing all things owned by [Larry] at the time of his death." Gary also argues that we must apply a legal presumption against the passing of property through partial intestacy and that Article IV, which grants him authority to sell or manage real property, informs Larry's intent to dispose of real property through the language of Article II.

III. Principles of Construction

We review a trial court's construction of unambiguous language in a will de novo. Jinkins v. Jinkins, 522 S.W.3d 771, 779 (Tex. App.—Houston [1st Dist.]2017, no pet.). When a trial court's construction of an unambiguous term in a will is erroneous, we will reverse the trial court's judgment and render the judgment that the trial court should have rendered. See In re Estate of Slaughter, 305 S.W.3d 804, 812 (Tex. App.—Texarkana 2010, no pet.).

The principles that we use in construing a will are familiar and settled:

The cardinal rule for construing a will is that the testator's intent must be ascertained by looking at the language and provisions of the instrument as a whole, as set forth within its four corners. The question is not what the testator intended to write, but the meaning of the words he actually used. Terms used are to be given their plain, ordinary, and generally accepted meanings unless the instrument itself shows them to have been used in a technical or different sense.

If possible, all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testator's intent. We must presume that the testator placed nothing meaningless or superfluous in the instrument. Where practicable, a latter clause in a will must be deemed to affirm, not to contradict, an earlier clause in the same will.

Whether a will is ambiguous is a question of law for the court. A term is not ambiguous merely because of a simple lack of clarity or because the parties proffer different interpretations of a term. Rather, a will is ambiguous only when the application of established rules of construction leave its terms susceptible to more than one reasonable meaning. If the court can give a certain or definite legal meaning or interpretation to the words used, the will is unambiguous, and the court should construe it as a matter of law.

Steger v. Muenster Drilling Co., 134 S.W.3d 359, 372-73 (Tex. App.—Fort Worth 2003, pet. denied) (footnotes omitted); see also Jinkins, 522 S.W.3d at 780 (explaining that a court may not redraft a will to vary or add provisions under the guise of construing the language of the will to reach a presumed intent).

When construing documents, including wills, we "cannot divorce text from context." In re Office of the Attorney Gen. of Tex., 456 S.W.3d 153, 155-56 (Tex. 2015) (orig. proceeding). In other words,

The meaning of words read in isolation is frequently contrary to the meaning of words read contextually in light of what surrounds them. Given the enormous power of context to transform the meaning of language, courts should resist rulings anchored in hyper-technical readings of isolated words or phrases. The import of language, plain or not, must be drawn from the surrounding context, particularly when construing everyday words and phrases that are inordinately context-sensitive.

Id.; see In re Estate of Tyner, 292 S.W.3d 179, 182 (Tex. App.—Tyler 2009, no pet.) (explaining that language of a "single clause [in a will] will not govern, but must be read in the context of the entire instrument"). When the meaning of language used in a will has been settled by usage and sanctioned by judicial decisions, it is presumed to be used in the sense that the law has given to it, and should be so construed, unless the context of the will shows a clear intention to the contrary. Stephens v. Beard, 485 S.W.3d 914, 917 (Tex. 2016).

IV. Distinction Between Real and Personal Property

The question here is whether Larry gave Valorie his real property or only his personal property. Real property includes "estates and interests in land, whether corporeal or incorporeal or legal or equitable. The term does not include a real chattel."⁴ Tex. Est. Code Ann. § 22.030 (West 2014); see also Tex. TaxCode Ann. § 1.04(2) (West 2015) (defining "real property" as an interest in land, an improvement, a mine or quarry, a mineral in place, or standing timber). Personal property includes an interest in goods, money, a chose in action, an evidence of debt, and a real chattel. Tex. Est. Code Ann. § 22.028 (West 2014); see Tex. Tax Code Ann. § 1.04(4) (explaining that personal property is "property that is not real property"). When a testator bequeaths "property" without qualification as to real or personal, the bequest "encompasses everything of exchangeable value that the testator owned." In Estate of Setser, No. 01-15-00855-CV, 2017 WL 444452, at *3 (Tex. App.—Houston [1st Dist.] Feb. 2, 2017, no pet.) (mem. op.) (citing Ellet v. McCord, 41 S.W.2d 110, 112 (Tex. Civ. App.—Austin 1931, writ ref'd)). On the other hand, we will enforce a testator's expressed intent to pass less than all of the testator's property through a will. See Carr v. Rogers, 383 S.W.2d 383, 385 (Tex. 1964) (explaining that a court must enforce a will's provision that "clearly indicates that some of the property has not been disposed of").

V. Construction of Larry's Will

A. The Will's Plain Language

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