Sammons v. Elder

• Decision Date: 05 February 1997
• Docket Number: No. 10-95-234-CV,10-95-234-CV
• Citation: 940 S.W.2d 276
• Parties: Joyce Novian SAMMONS, Appellant, v. Mary Ann ELDER and Robert Hicks Harvey, Individually and as Independent Executors of The Estate of Waldine Harvey Novian, Deceased, Appellees.
• Court: Texas Court of Appeals

Page 276

940 S.W.2d 276

Joyce Novian SAMMONS, Appellant, v. Mary Ann ELDER and Robert Hicks Harvey, Individually and as Independent Executors of The Estate of Waldine Harvey Novian, Deceased, Appellees.

No. 10-95-234-CV.

Court of Appeals of Texas Waco.

Feb. 5, 1997.

Rehearing Overruled March 31, 1997.

Elwood Cluck, San Antonio, for appellant.

Michael J. Gulig and Peter K. Rusek, Sheehy, Lovelace & Mayfield, P.C., Waco, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

This will construction case primarily concerns the interpretation of the term "savings account and/or savings certificate." After a bench trial, the court found that all but two of the decedent's, Waldine Harvey Novian's ("Novian"), various money market accounts, certificates of deposit, and individual retirement accounts constituted a "savings account and/or savings certificate," thereby passing to her two children under the will. The trial court found the two remaining accounts to be checking accounts, which passed equally to her stepdaughter and children. Appellant complains of the trial court's rulings regarding the existence of a "savings account and/or savings certificate," the failure to remove Appellees as independent executors of Novian's estate, and the denial of attorney's fees. By cross-points, Appellees complain that the trial court's findings of fact and conclusions of law and the final judgment do not coincide and, further, complain of the denial of attorney's fees. Because we find that the trial court did not err in its rendition concerning the interpretation and administration of this will, we affirm.

FACTS

Novian bequeathed to her two natural children, Mary Ann Elder ("Elder") and Robert Hicks Harvey ("Harvey"), all the money in her "savings account and/or savings certificate" under Article Third of her will. Joyce Novian Sammons ("Sammons"), Novian's stepdaughter, received a residuary interest that passed equally among her, Elder and Harvey under Article Fourth. In an inventory filed and approved by the County Court, Elder and Harvey, acting in their capacities as independent executors, listed Novian's various accounts as checking accounts, money market accounts, certificates of deposit, and individual retirement accounts. Sammons claimed the inventory reflected that no "savings account and/or saving certificate" existed at the time of Novian's death; therefore, any bequest under Article Third failed based upon the doctrine of ademption. See Shriner's Hospital for Crippled Children v. Stahl, 610 S.W.2d 147 (Tex.1980). Thus, Sammons argued all the accounts listed in the inventory passed equally to her, Elder, and Harvey under Article Fourth. Elder and Harvey claimed all the accounts constituted a "savings account and/or savings certificate" under Article Third.

PRESERVATION

Initially, we must consider whether the parties preserved their complaints. To preserve a complaint of error, a party must present to the trial court a timely request, objection, or motion detailing the specific grounds for why the court should rule as the party desires. TEX.R.APP.P. 52(a). In a nonjury trial, a party attacking the legal or factual sufficiency of the evidence supporting a finding of fact or complaining that a finding of fact was established as a matter of law or was against the overwhelming weight of the evidence need not comply with Rule 52(a). Id. 52(d). In this case, both parties attacked only the trial court's conclusions of law. Attacks on conclusions of law are not listed in Rule 52(d). Id. We find that conclusions of law in a nonjury trial are reviewable by this Court without preservation under Rule 52(a). ¹ See Spiller v. Spiller, 901 S.W.2d 553, 556 (Tex.App.--San Antonio 1995, writ denied); Westech Eng. v. Clearwater Constructors, 835 S.W.2d 190, 196 (Tex.App.--Austin 1992, no writ). We recognize that other courts require a post-judgment request, objection, or motion in compliance with Rule 52(a). Regan v. Lee, 879 S.W.2d 133, 136 (Tex.App.--Houston [14th Dist.] 1994, no writ); Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 738-39 (Tex.App.--Corpus Christi 1992, writ denied). However, we believe conclusions of law are always reviewable. Spiller, 901 S.W.2d at 556; Westech Eng., 835 S.W.2d at 196. Thus, even though neither party complied with Rule 52(a), we review the merits of this case. ²

ACCOUNT CHARACTERIZATION

Res Judicata, Equitable Estoppel and Collateral Estoppel

Sammons' third point complains that the trial court erred in finding the existence of a "savings account and/or savings certificate" because Elder and Harvey did not list any savings accounts or savings certificates in the inventory. Relying on judicial admission, res judicata, equitable estoppel and collateral estoppel theories, Sammons asserts that Elder and Harvey may not contradict their characterization of the accounts in the inventory. However, the record does not indicate that Sammons advanced these theories before the trial court. Thus, the trial court filed no conclusions of law on these theories. Sammons cannot attack conclusions of law the trial court never made; she can only appeal fact determinations specified under Rule 52(d) or comply with Rule 52(a). TEX.R.APP.P. 52(a), 52(d). She did neither. Therefore, her third point of error is overruled. D/FW Commercial Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex.App.--Dallas 1993, no writ); Andrews v. ABJ Adjusters, Inc., 800 S.W.2d 567, 568-69 (Tex.App.--Houston [14th Dist.] 1990, writ denied); NCNB Texas Nat. Bank v. Sterling Projects, 789 S.W.2d 358, 360 (Tex.App.--Dallas 1990, writ dism'd w.o.j.).

Ambiguity

In her second point, Sammons complains the trial court erred in holding the term "savings account and/or savings certificate" ambiguous. Whether an ambiguity exists is generally a question of law for the court. Hudson v. Hopkins, 799 S.W.2d 783, 786 (Tex.App.--Tyler 1990, no writ). A conclusion of law will not be reversed unless it is erroneous as a matter of law. Spiller, 901 S.W.2d at 556; Piazza v. City of Granger, 909 S.W.2d 529, 532 (Tex.App.--Austin 1995, no writ). We determine error by reviewing the legal conclusions drawn from the facts found to determine their correctness. Westech Eng., 835 S.W.2d at 196 n. 1.

Sammons alleges that the meaning of a "savings account and/or savings certificate" is unambiguous. However, she fails to cite to a case defining this term. Instead, she relies solely on the dictionary definition of a "savings account." Thus, Sammons defines a savings account as "an account (as in a bank) on which interest is usually paid and from which withdrawals can be made and usually only by presentation of a passbook or by written authorization on a prescribed form." Whereas a savings certificate is "a savings account evidenced by a certificate rather than a passbook." ³ Certificates of deposit, individual retirement accounts, and money market accounts are not excluded from qualifying as "savings accounts or savings certificates" under Sammons' definitions. Considering the lack of case law and the broad dictionary definition, we cannot say that the court erred as a matter of law in finding the term "savings account and/or savings certificate" ambiguous in the context of this will. Piazza, 909 S.W.2d at 532; Westech Eng., 835 S.W.2d at 196. Therefore, Sammons' second point is overruled.

Sammons' fourth point complains of the trial court's use of extrinsic evidence to determine Novian's intent in the usage of a "savings account and/or savings certificate." When a term in a will is capable of more than one meaning, the court should consider extrinsic evidence of the testatrix's intent. Davis v. Shanks, 898 S.W.2d 285, 286 (Tex.1995). Because an ambiguity existed in this will, the trial court correctly considered extrinsic evidence in an attempt to ascertain how Novian intended to use this term. Sammons' fourth point of error is overruled.

Certificates of Deposit and Money Market Accounts

In its findings of fact and conclusions of law, the trial court found that the "dollar amount and frequency of withdrawals and/or transfers ... is completely consistent with such accounts being 'savings accounts' or 'savings certificates' within the plain and usual meaning of those terms." Sammons argues in point five that the trial court erred by relying on a "frequency of transactions" standard for characterizing the accounts. Point eight repeats this complaint and applies it specifically to the money market accounts. In addition, Sammons complains in her seventh point of error that the court erred in characterizing the certificates of deposit as savings accounts instead of promissory notes. See Thompson v. Thompson, 149 Tex. 632, 236 S.W.2d 779, 791 (1951); Dallas/Fort Worth Airport Bank v. Dallas Bank & Trust, 667 S.W.2d 572, 575 (Tex.App.--Dallas 1984, no writ). Each point complains about the legal standard the court fashioned to characterize these accounts. Bloomer v. Bloomer, 927 S.W.2d 118, 121 n. 5 (Tex.App.--Houston [1st Dist.] 1996, writ denied).

We must determine whether this legal conclusion is erroneous as a matter of law. Spiller, 901 S.W.2d at 556; Piazza, 909 S.W.2d at 532. This determination is made by reviewing the conclusions drawn from the facts found to determine their correctness. Westech Eng., 835 S.W.2d at 196 n. 1. Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Spiller, 901 S.W.2d at 556; Westech Eng., 835 S.W.2d at 196.

The primary goal for courts in interpreting wills is to determine the intent of the testatrix. Diemer v. Diemer, 717 S.W.2d 160, 162 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.); In re Hite, 700 S.W.2d 713, 716 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.); Bristol v. Mazza, 288 S.W.2d 564, 565 (Tex.Civ.App.--Fort Worth 1956, writ ref'd n.r.e.). The intention of the testatrix must be...