Heather Martin and John Brown v. Leonora Brown

Opinion

ACCEPTED

03-15-00492-CV

7645485

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/2/2015 3:50:13 PM

JEFFREY D. KYLE

CLERK

NO. 03-15-00492-CV FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS

11/2/2015 3:50:13 PM

IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE Clerk

FOR THE STATE OF TEXAS

HEATHER MARTIN AND JOHN BROWN V.

LEONORA BROWN

On Appeal From the County Court at Law Number 1 of Bell County, Texas

BRIEF OF THE APPELLANTS

ORAL ARGUMENT REQUESTED

Tad H. Cleaves TBA No. 24062667 Roberts & Roberts, LLP 2501 E. Elms Road, Suite A Killeen, Texas 76542 Telephone: (254) 526-7541 Facsimile: (254) 526-5656 tcleaves@robertslegalfirm.com

ATTORNEY FOR PETIONERS AND APPELANTS

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IDENTITY OF PARTIES AND COUNSEL Petitioners / Appellants:

Heather Martin and John Brown Trial and Appellate Counsel for Petitioners / Appellants:

Tad H. Cleaves TBA No. 24062667 Roberts & Roberts, LLP 2501 E. Elms Road, Suite A Killeen, Texas 76542 Telephone: (254) 526-7541 Facsimile: (254) 526-5656 tcleaves@robertslegalfirm.com

Respondent / Appellee:

Leonora Brown Trial and Appellate Counsel for Respondent / Appellee:

Mary Black Pearson TBA No. 02373590 Pearson & Pearson, LLP 2109 Birdcreek Terrace Temple, Texas 76502 Telephone: (254) 778-0699 Facsimile: (254) 778-0500

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TABLE OF CONTENTS

I. STATEMENT OF FACTS 1 A. Family History and Property 1 B. Will Provisions at Issue 2 C. Failure to occupy San Saba Property and Lease of San Saba Property 2 II. SUMMARY OF THE ARGUMENT 3 III. ARGUMENT 4 A. Standard of Review 4

B. Mr. Brown’s testamentary intent is unambiguous from the plain language of his Last Will and Testament. 5

C. Testator’s use of the term “occupy” does not create ambiguity. 6

D. The Trial Court erred when it added an “abandonment”

requirement to the devise of the San Saba Property. 9

E. The ruling cited by the trial court in Singleton v. Donalson, 117 S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) does not support granting Appellee an indefeasible life estate. 10

IV. CONCLUSION 13 V. APPENDIX 14

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TABLE OF AUTHORITIES

Texas State Cases

Harris v. Hines, 137 S.W.3d 898 (Tex.App. – Texarkana 2004, no pet.) 4

Steger v. Muenster Drilling Co., 134 S.W.3d 359 (Tex.App. – Fort Worth 2003, pet. Denied) 4

San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000) 5, 7, 9, 13

Lehman v. Corpus Christi Nat’l Bank, 668 S.W.2d 687 (Tex. 194) 5

Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237 (Tex. App. – Austin 2007, no writ) 5

Brown v. Johnson, 118 Tex. 143 (Tex. 1929) 8, 9

Ellis et al. v. Patrick et al., 93 S.W.2d 1201 (Tex. App.-- Waco 1936, no writ) 8, 7

Singleton v. Donalson, 117 S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) 10, 11, 12, 13

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Statutes

State Statutes

Tex. Prop. Code § 5.008 7

Tex. Prop. Code § 22.021 8

Record References

The Record citing convention contained below is used throughout Appellants’ Brief.

CR ___ Clerk’s Record 2 RR ___ Reporter’s Record Volume Two of Three Volumes 3 RR ___ Reporter’s Record Volume Three of Three Volumes App. Tab ___ Appendix

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STATEMENT OF THE CASE

Heather Martin and John Brown (collectively “Appellants”) make this appeal in response to the trial court’s Order Regarding Declaratory Judgment and Complaint for Correction of the Inventory (CR 17, 18). Appellants were two of the three heirs to the Estate of Franklin Arthur Brown (the “Estate”), and Leonora Brown, Appellee in the instant matter, is both the third heir to the Estate and the executor of the Estate. In the trial court Appellants petitioned for a declaratory judgment that certain Estate real property be granted to Appellants in fee simple due to Leonora Brown’s failure to “occupy” the property as required in the Last Will and Testament of Franklin Arthur Brown (the “Will”) (CR 3-6). After a bench trial, the trial court ruled in favor of Appellee, and Appellants are appealing that ruling.

ISSUE PRESENTED

1. Did the trial court err by ruling that the Will grants an indefeasible life estate in the real property at issue to Appellee?

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I. STATEMENT OF FACTS A. Family History and Property Franklin A. Brown (“Mr. Brown”) passed away on March 23, 2013.

Approximately eleven years earlier, on August 28, 2002, Decedent executed a Last Will and Testament (“Will”), which was admitted to probate by the trial court on July 25, 2014. At the time he executed his Will, Decedent was married to Leonora Brown, Appellee herein, and had two living children from an earlier marriage, who are the Appellants herein. Appellee and Appellants are the three heirs named in the Will. App. Tab 3.

When they married, Mr. Brown and Appellee lived together with John Brown, Mr. Brown’s son, in an apartment in Mr. Brown’s family’s funeral home in San Saba, Texas (2 RR 14). They then moved together to an apartment in Killeen, Texas (Id. at 13-14), and in April 2004, Mr. Brown and Appellee (without John Brown) moved into a home in Copperas Cove, Texas (the “Copperas Cove Home”) (Id. at 20), where they continued to live until Mr. Brown’s death. Id. Throughout this time period, Mr. Brown owned a tract of land in San Saba he received prior to his marriage to Appellee (the “San Saba Property”). CR 10. When Mr. Brown and Appellee married, there were no structures on this property. 2 RR 15. After their marriage in 2000 and before 2004, a sheet metal building with a shop and apartment was

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constructed on the San Saba Property. 2 RR 15. John Brown lived alone in this building for a period of time in 2004. 2 RR 15. B. Will Provision At Issue The Will, which is attached as Exhibit A in the Appendix hereto, makes provisions for Mr. Brown’s property to be split among his wife and two children, who are named in the Will. App. Tab 3. In Paragraph II(c) of the Will, Mr. Brown devises, “Unto my wife for and during her natural life or until such time as she shall fail to occupy the same, all real property which I own in the town of San Saba, Texas. In the event she shall predecease me or cease to occupy said property, then in either of these events, said real property shall vest in my children, share and share alike (Emphasis Added).” App. Tab 3. Mr. Brown also leaves the residue of his estate in equal shares to his wife and two children. App. Tab 3.

C. Failure to Occupy San Saba Property and Lease of the San Saba Property Since moving to the Copperas Cove Home in 2004, Appellee has lived there continuously. 2 RR 20. She also claims the Copperas Cove Home as her homestead for tax purposes, and she intends to continue to live in the Copperas Cove Home. 2 RR 20-21. Furthermore, on April 4, 2015, Appellee

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entered into a written Lease Agreement (the “Lease Agreement”) to lease the San Saba Property for six-months. 3 RR Ex 1. Appellee plans to use the income derived from leasing the San Saba Property to, among other things, “provide [her] with a little bit of income.” 2 RR 26. No evidence was presented to the trial court that Appellee ever intends to reside in, live upon, occupy or use the San Saba Property.

II. SUMMARY OF THE ARGUMENT The Last Will and Testament of Franklin Arthur Brown is a simple and unambiguous document. It runs four pages and disposes of all Mr. Brown’s property in just a few paragraphs. App. Tab 3. Mr. Brown’s testamentary intent is apparent on the face of the document, and Appellants want it to be construed according to the plain language in which it is written.

The will provision at issue herein deals with title to real property in San Saba, Texas. The provision as it reads grants a life estate in real property to Appellee conditioned on Appellee “occupying” the property. App. Tab 3. The text of the Will creates a defeasible life estate subject to an executory limitation. Appellants argue that Mr. Brown’s testamentary intent is clear from the language of the Will, and because the occupancy requirement has not been met by Appellee, her rights to the property are forfeit.

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In order for the trial court to look outside the four corners of the Will for testamentary intent, the Will must contain some ambiguity of language. The use of the word “occupy” and Mr. Brown’s inclusion of a defeasible life estate subject to an executory limitation does not create ambiguity in his Will, so the trial court should not have looked outside the Will to determine Mr. Brown’s testamentary intent. Furthermore, the addition by the trial court of a condition that Appellee actively abandon the property, in the absence of any language in the Will or evidence in the record to support such a ruling, was improper.

III. ARGUMENT A. Standard of Review The question of whether terms of a will are ambiguous is a question of law. Harris v. Hines, 137 S.W.3d 898, 903 (Tex.App. – Texarkana 2004, no pet.). If the court can give a 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, 373 (Tex.App. – Fort Worth 2003, pet. Denied). Questions of law are reviewed de novo. Harris, 137 S.W.3d at 903. In the instant case, the trial court’s interpretation of an unambiguous provision of Mr. Brown’s Will is at issue, so the Appellate Court’s review should be a de novo standard.

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B. Mr. Brown’s testamentary intent is unambiguous from the plain language of his Last Will and Testament.

In his Last Will and Testament, Mr. Brown was unambiguous with the disposition of his property, so the trial court abused its discretion by looking to extrinsic evidence for Mr. Brown’s testamentary intent. If a will is unambiguous, a trial court should not go beyond specific terms of the will in search of the testator’s intent. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000); Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 243 (Tex. App. – Austin 2007); Lehman v. Corpus Christi Nat’l Bank, 668 S.W.2d 687, 688 (Tex. 1984). When there is no dispute about the meaning of words used in a will, extrinsic evidence should not be received to show that the testator intended something outside the words used. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). In Section II (c) of his Last Will and Testament (“Will”), Mr. Brown makes the following devise:

Unto my wife for and during her natural life or until such time as she fail to occupy the same, all real property which I own in the town of San Saba, Texas. In the event she shall predecease me or cease to occupy said property, then in either of those events, said property shall pass to and vest in my children, share and share alike. App. Tab 3.

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From the plain language of the Will, Mr. Brown is making a making a gift of real property to his wife for her lifetime, but for her to receive this devise, Mr. Brown places the condition that his wife “occupy” the real property. This condition is evidently so important to Mr. Brown, that he repeats the condition twice. On its face, a defeasible life estate is being granted subject to an executory limitation. Mr. Brown’s wife would receive the real property if she (1) survived Mr. Brown and (2) occupied the property. Once she (1) dies or (2) ceases to occupy said property, according to the plain language of the Will from which Mr. Brown’s testamentary intent should be derived, the real property passes to Mr. Brown’s children. In the instant case, the trial court, granted Appellee an indefeasible life estate. CR 17-18. In its Findings of Fact & Conclusions of Law, did not conclude that anything in the Will was ambiguous. CR 20-22. In the absence of ambiguity, the trial court erred by granting Appellee an indefeasible life estate, contrary to the unambiguous language of Mr. Brown’s Will, and Appellants request this Court reverse the trial court’s judgment.

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C. Testator’s use of the term “occupy” does not create ambiguity.

Testator’s requirement that the gift of the San Saba Property to Appellee be conditioned on her occupying the real estate does not create an ambiguity in the Will. In the Lang case, the Lang family was claiming that the term “real property” was an ambiguous term in a will. Lang, 35 S.W.3d at 641. Quoting from that case, “…if ‘real property’ can be made ambiguous or unclear by extrinsic evidence, then few – if any – terms in the legal lexicon cannot be made unclear by extrinsic evidence.” Id. Likewise, “occupy” in a real estate context is not an ambiguous or unclear word, and to hold otherwise would, as with the term “real property” in the Lang case, undermine the use of this term in legal contexts.

When used in regards to real property, to “occupy” property always requires actual possession of the real estate. In Texas statutes and case law, “occupancy” means actually living on a piece of real estate or in an apartment or house. Examples of the use of “occupy” to indicate mere ownership of land are difficult and perhaps impossible to find. Section 5.008 of the Texas Property Code requires an owner of real property who is selling his or her property to disclose whether he or she “occupies” or does not “occupy” the real estate being sold – indicating a relationship between

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occupancy and residing within or on a piece of real estate. Tex. Prop. Code § 5.008. Section 22.021 of the Texas Property Code allows a person who is not the owner of piece of real property to be reimbursed for improvements to that property made while he or she used and occupied the property, again indicating a relationship between occupation of land and actually being present on and in physical possession of that land. Tex. Prop. Code § 22.021. The Texas Supreme Court held that in a landlord – tenant relationship, it is “indispensible” that the intention of the landlord is to dispossess himself of the premises and the tenant occupy them. Brown v. Johnson, 118 Tex. 143, 147 (Tex. 1929). In Ellis et al. v. Patrick et al., the Court of Civil Appeals of Texas, Waco, discussed occupancy of land in the case of a homestead dispute, creating a relationship between “occupancy” and “possession.” Ellis et al. v. Patrick et al., 93 S.W.2d 1201 (Tex. App.-- Waco 1936). Further, Merriam-Webster Online defines “Occupy” as meaning “to live in (a house, apartment, etc.)” and “to reside in as an owner or tenant.” “Occupy” Def. 4. Merriam-Webster Online. Merriam-Webster, n.d. Web. 15 June 2015. In the instant case, Mr. Brown places an occupancy requirement on his wife’s ability to maintain her life estate of his San Saba Property. According to her own testimony, Appellee does not currently reside on the San Saba Property and has not resided on the San Saba Property since before Mr. Brown’s

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death. 2 RR 20. Furthermore, the San Saba Property is currently leased to a tenant who has rights to possession of the San Saba Property. 3 RR Ex. 1. Given the relationship between occupancy and physical possession of or residence in real estate, Appellee’s lack of physical possession due to her residence in Copperas Cove, Texas indicates her failure to occupy the San Saba Property, thereby ending her claim to a life estate in it under the terms of the Will. That, along with the lease of the San Saba Property, where, under the Brown v. Johnson ‘rule’ above, a landlord cannot occupy leased property, Appellee does not occupy the San Saba Property, and the trial court committed reversible error in granting her an indefeasible life estate.

D. The Trial Court erred when it added an “abandonment” requirement to the devise of the San Saba Property.

In its 6th Conclusion of Law, the trial court concluded that Appellee’s life estate “…would remain so unless she abandoned the property.” CR 22. As stated above, unless an ambiguity exists in a Will, the intention of the testator must be determined from the actual text of the document. Lang, 35 S.W.3d at 639. By adding the requirement that Appellee “abandon” the San Saba Property before Appellants can take ownership, the trial court is inserting a new provision into the Will. Mr. Brown was clear in his will that

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once his wife ceased to occupy the San Saba Property, fee simple ownership would pass to his children. No evidence was presented to the trial court that Mr. Brown intended to use the term “abandonment” in place of “occupy,” so the trial court erred when granting Appellee a life estate and including this additional condition and hurdle to Appellants receipt of ownership.

E. The ruling cited by the trial court in Singleton v. Donalson, 117 S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) does not support granting Appellee an indefeasible life estate.

The ruling in Singleton v. Donalson cited in the trial court’s Conclusions of Law (CR 21 – 22) and relied on to grant Appellee an indefeasible life estate does not apply to the instant case. In the Donalson case, Ruth Hooks Donalson executed a will devising a life estate in some property to her spouse, George Donalson, III, with a “reversionary interest” to other relatives named in the will. Singleton v. Donalson, 117 S.W.3d 516, 517 (Tex. App. – Beaumont 2003, pet. Denied). The holders of the reversionary interests sued Mr. Donalson for wasting assets. Id. Summary judgment was granted in favor of Mr. Donalson, and the other relatives appealed that decision. Id. The testamentary language from Ms. Donalson’s will is excerpted below:

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My separate real property, hereinabove referred to in III A., including fee, surface, minerals, royalties, and mixed, and hereby intending to include all the rest, remainder and residue of my estate, not heretofore disposed of, I hereby give, devise and bequeath to my beloved husband, George E. Donalson, III., a Life Estate. My said husband is to enjoy the use and benefits of said properties, including the income derived from said properties, said income to become his separate property as paid. As stated, my said husband is to enjoy the use and benefits of said properties and to do with as he sees fit for the rest of his life, with reversion of the corpus of said properties upon his death [to other named relatives]. Id. at 517-518.

In the Donalson case, a wife’s will granted a life estate in property to her husband with the explicit qualification that he could do with that property “as he sees fit for the rest of his life.” Id. The Appellate Court agreed with Mr. Donalson and the trial court and upheld the trial court’s judgment in his favor. The Appellate Court relied on the (1) unambiguous language of the devise and (2) the intent of the testator as expressed in the plain language of her will to make its ruling. Id. at 518-519. The trial court in the instant case interprets Donalson to support granting an indefeasible life estate to Appellee, because “the first taker of an interest will be construed to have been granted ‘the greatest estate which they, by a fair construction in harmony with the will as a whole, are capable of passing.’” CR 21-22. While

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that quote is lifted from Donalson, it is not applied correctly in the instant case. The Appellate Court in Donalson was very deferential to the text of Ms. Donalson’s will. Even where it overturned default property rules concerning the waste of the corpus of a life estate, because Ms. Donalson was so specific in the wording of her devise, the Appellate Court was confident that Ms. Donalson’s intent was ascertainable from the plain text and enforced the will as written. Donalson, 117 S.W.3d at 517-520. In the case now before the Court, Mr. Brown was also very specific with his desire that his wife receive a life estate to the San Saba Property conditioned upon her occupying the property. He wrote the occupancy requirement into the will twice. App. Tab 3. To disregard Mr. Brown’s plain and unambiguous desire that the life estate he granted to Appellee in his will be conditioned on her occupancy of the property is reversible error, and Appellants ask this Court to so reverse the trial court’s grant of an indefeasible life estate to Appellee.

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IV. CONCLUSION Appellants request that this Court hold that:

(1) The Will being construed in this case is unambiguous on its face, and the trial court erred by going beyond the plain language of the text when determining the testator’s intent in this Will. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000).

(2) The term “occupy” as used in the Will is not an ambiguous term, that to “occupy” the San Saba Property would require maintaining a residence in or physical possession of the San Saba Property, and that the trial court erred by granting Appellee a life estate in the San Saba Property contrary to the Will’s occupancy requirement.

(3) The devise of a defeasible life estate subject to an executory limitation does not create ambiguity, and the trial court committed reversible error when it (1) ignored the intent of the testator by substituting other requirements (such as abandonment of the property) and (2) disregarded the unambiguous terms of the devise. Singleton v. Donalson, 117 S.W.3d 516, 518-519 (Tex. App. – Beaumont 2003, pet. Denied).

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V. APPENDIX

Order Regarding Declaratory Judgment and Tab 1 Complaint for Correction of the Inventory

Findings of Fact & Conclusions of Law Tab 2 Last Will and Testament of Franklin Arthur Brown Tab 3

Respectfully Submitted,

ROBERTS & ROBERTS, L.L.P.

By

Tad H. Cleaves

State Bar No. 24062667

2501 East Elms Road, Ste A Killeen, Texas 76542

(254) 526-7541

Fax: (254) 526-5656

tcleaves@robertslegalfirm.com

Certificate of Compliance I certify that this document brief/petition was prepared with Microsoft Word 2012, and that, according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain 3,748 words.

/s/ Tad H. Cleaves _______________ Tad H. Cleaves

Attorney for Appellants

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Certificate of Service

I certify that a true copy of this Brief of the Appellants was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party’s lead counsel as follows:

Party: Leonora Brown Lead attorney: Mary Black Pearson Address of service: 2109 Birdcreek Terrace, Temple, Texas 76502 Method of service: by fax and by electronic service Date of service: November 2, 2015

/s/ Tad H. Cleaves _______________ Tad H. Cleaves

Attorney for Appellants

Tab 1

Tab 2

Tab 3

LOUIS M. CRUMP

Attorney at Law

P. O . . S e * ^ > 3 S - .

San Saba, Texas 76877

#

L A S T W I L L A N D T E S TA M E N T

O F

FRANKLIN ARTHUR BROWN

I, FRANKLIN ARTHUR BROWN, of San Saba County, Texas, being of sound and

disposing mind and memory and above the age of eighteen (18) years do hereby make, declare and publish this my Last Will and Testament, hereby revoking all previous wills and codicils, if

any, by me at any time heretofore made, to-wit:

I.

I am married to Leonora Brown and all references in this will to "my wife" are to her.

I have two children by a previous marriage, John Franklin Brown, II and Heather Elaine Brown.

All references in this will to "my children" are to them.

II.

After payment of my said debts including funeral expenses, expenses of last illness, and expenses which may be incurred in connection with the administration of my estate, I do hereby give, devise and bequeath all property, both real and personal, which 1 may own at the time of my death, as follows;

a) Unto my wife and my children each a one-third (1/3) interest in the balance owing to me on promissory note executed by Howell-Doran Funeral Home payable to me.

b) Unto my wife all accounts which I have in Arrowhead Bank, San Saba, Texas.

c) Unto my wife for and during her natural life or until such time as she shall fail to occupy the same, all real property which I own in the town of San Saba, Texas. In the event she shall predecease me or cease to occupy said property, then in either of those events, said real property shall pass to and vest in my children, share and share alike