OPINION
Opinion by
Justice CARTER.
This is an appeal from a summary judgment in a declaratory judgment action which sought construction of the wills of C.M. Beckett, Sr., and Jo B. Beckett. The central issue is the distribution of assets of two separate terminated trusts. We find the wills require that each surviving heir is entitled to receive an equal share of the two trusts. We reverse and render the judgment of the trial court.
I. Background
In 1957, C.M. Beckett, Sr., and his wife, Jo B. Beckett, each made wills establishing trusts for their two sons, C.M. Beckett, Jr., and Jerry B. Beckett. Each will provided for the equal division of estate assets between C.M., Jr. and Jerry, in trust, with
income to each for life. Both wills directed the trustee to “divide the residue of my estate into two equal parts,” each of which “shall be administered as a separate and distinct trust.” Accordingly, two trusts were established — one in the name of C.M. Beckett, Jr., and the other in the name of Jerry B. Beckett. The principal and remainder of each trust were bequeathed to C.M., Jr.’s and Jerry’s descendants.
The trusts were to continue for the life of C.M. Beckett, Sr., Jo B. Beckett, and their two sons. Upon the death of C.M. Beckett, Sr., and Jo B. Beckett and
my two sons, all of the assets and properties of the trusts herein created shall be divided into as many equal shares as there are children of my two sons surviving together with an equal share per stirpes for the surviving child or children of any deceased grandchild, and such shares shall be immediately distributed to said grandchildren or great-grandchildren ....
After C.M., Sr. and Jo passed away in 1962,
C.M., Jr. and Jerry jointly administered the trusts, acting as co-trustees of each trust. When the brothers decided they could no longer work together in 1983, C.M., Jr. filed a partition lawsuit. As a part of the lawsuit’s settlement, Jerry voluntarily resigned as co-trustee of the C.M. Beckett, Jr. Trust, leaving C.M., Jr. as the sole successor trustee of that trust. Likewise, C.M., Jr. voluntarily resigned as co-trustee of Jerry’s trust. Jointly held trust assets were sold and equally divided between the two trusts.
Thereafter, C.M., Jr. distributed certain assets of the C.M. Beckett, Jr. Trust to himself.
Beverly Beckett was Jerry’s sole surviving child when he passed away in 1986. Beverly’s son, Brian Beckett, and Regions Morgan Keegan Bank are the successor co-trustees of the Jerry B. Beckett Trust.
When C.M., Jr. passed away on April 25, 2007, he had one surviving child — Clint Murl Beckett, III, and one grandchild— Texie Beckett Carson Nash (the daughter of Jo Lynne Beckett Dyke, who predeceased her father, C.M., Jr.). Texie was appointed independent executrix of C.M.,
Jr.’s will, and she qualified to serve in that capacity in 2007. Texie became the successor trustee of the C.M. Beckett, Jr. Trust.
The trusts terminated as of April 25, 2007, the date of the last to die of Jerry and C.M., Jr. Thereafter, Texie filed a lawsuit seeking a declaratory judgment that all of the trusts’ assets should be distributed equally to Texie, Clint, III, and Beverly.
In his competing declaratory judgment action to construe the C.M. Beckett, Jr. and Jerry B. Beckett Trusts, Brian maintained that Beverly is the sole beneficiary of the Jerry B. Beckett Trust and Texie and Clint, III, are the sole beneficiaries of the C.M. Beckett, Jr. Trust.
Additionally, Brian asserted claims against Texie related to the administration of the C.M. Beckett, Jr. Trust.
The competing declaratory judgment actions were consolidated in 2008. Thereafter, Texie and Beverly filed competing motions for partial summary judgment, each of which was denied by the trial court.
In
2010, Texie and Beverly submitted additional summary judgment briefing regarding the appropriate division of the trusts’ assets, and more specifically, who should be entitled to share in the assets of the Jerry B. Beckett Trust. The trial court issued its order granting Beverly’s motion for summary judgment and denying Tex-ie’s motion for summary judgment.
The trial court concluded Beverly was entitled to 100 percent of the assets of the Jerry B. Beckett Trust.
II. Appellate Issues
On appeal, Texie asserts three points of error. Her first and third appellate points complain of the summary judgment in Beverly’s favor and the trial court’s failure to grant summary judgment in her favor, or alternatively, its failure to find genuine fact issues regarding interpretation of the will. Texie’s second appellate point complains of the denial of her summary judgment motion on Beverly’s affirmative defenses.
III. Standard of Review
We review declaratory judgments under the same standards as other judgments and decrees. Tex. Civ. Prac.
&
Rem.Code Ann. § 37.010 (West 2008);
Armstrong v. Hixon,
206 S.W.3d 175, 179 (Tex.App.-Corpus Christi 2006, pet. denied). We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal.
Armstrong,
206 S.W.3d at 179;
Guthery v. Taylor,
112 S.W.3d 715, 720 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Here, the trial court determined the declaratory judgment issue through summary judgment proceedings.
A traditional motion for summary judgment is granted only when the movant establishes there are no genuine issues of material fact and it is entitled to judgment as a matter of law.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex.2009). An appellate court reviews de novo the grant or denial of a motion for summary judgment.
Id.
Where, as here, both parties file disposi-tive cross motions for summary judgment, and the court grants one and overrules the other, the appellate court has jurisdiction to review both the grant and the denial.
Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex.,
253 S.W.3d 184, 192 (Tex.2007). In such a case, the appellate court is to review the summary judgment evidence presented by each party, determine all questions presented, and render judgment as the trial court should have rendered.
Id.; Comm’rs Court v. Agan,
940 S.W.2d 77, 81 (Tex.1997);
Harris v. Hines,
137 S.W.3d 898, 902-03 (Tex.App.-Texarkana 2004, no pet.).
IV.Applicable Law and Discussion
Our chief concern in construing a will is to ascertain the true intent of the
testator as expressed in the instrument.
San Antonio Area Found. v. Lang,
35 S.W.3d 636, 639 (Tex.2000);
Hines,
137 S.W.3d at 903. In doing so, “[t]he intent must be drawn from the will, not the will from the intent.”
Lang,
35 S.W.3d at 640. This intent must be ascertained from the language found within the four corners of the will.
Odeneal v. Van Horn,
678 S.W.2d 941, 942 (Tex.1984). Therefore, when the intent of the testator is apparent on the face of the will, extrinsic evidence is not admissible to contradict the intent.
Id.
In determining the testator’s intent, the court focuses not on what the testator intended to write, but the meaning of the words actually used.
Lang,
35 S.W.3d at 639.
“If the will is unambiguous, [we will] not go beyond specific terms in search of the [testator’s] intent.”
Id.
If the instrument “can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe [it] as a matter of law.”
Coker v. Coker,
650 S.W.2d 391, 393 (Tex.1983);
Doggett v. Robinson,
345 S.W.3d 94, 99 (Tex.App.-Houston [14th Dist.] 2011, no pet.).
If, on the other hand, the meaning of the instrument is uncertain or reasonably susceptible to more than one meaning, it is ambiguous and extrinsic evidence should be considered to ascertain the testator’s intent.
See Davis v. Shanks,
898 S.W.2d 285, 286 (Tex.1995);
Harris,
137 S.W.3d at 902-03. A will is ambiguous only when the established rules of construction leave its terms susceptible to more than one reasonable meaning.
Steger v. Muenster Drilling Co.,
134 S.W.3d 359, 373 (Tex.App.-Fort Worth 2003, pet. denied).
A. The Trial Court Erred in Granting Summary Judgment to Beverly
The core issue we must decide is whether the will provides that the corpus of each separate trust — for C.M., Jr. and for Jerry — is to be divided into three equal shares for Beverly, Texie, and Clint, III, or whether the will directs the respective trust assets to pass directly to the descendants of the son in whose name each trust was established.
The testators’ last wills
establish two separate and distinct trusts — for C.M. Beckett, Jr. and for Jerry B. Beckett. Beverly maintains she is the sole beneficiary of Jerry’s trust and alone is entitled to distribution of the remaining assets of that trust. Likewise, Beverly alleges that Tex-ie and Clint, III are the sole beneficiaries of C.M., Jr.’s trust, and they alone are entitled to distribution of the remaining assets of that trust.
Indeed, the will establishes two separate trusts:
The trustees shall divide the residue of my estate into two equal parts. Each such part shall be administered as a separate and distinct trust. One of said parts shall be designated in the name of my son, C.M. Beckett, Jr., and the other part in the name of my son, Jerry B. Beckett. For so long as my wife [husband] lives.... After provision has been made for my wife [husband] out of the income of the trusts, there shall be distributed to my son, C.H. Beckett, Jr., all of the remaining income of the trust created in his name, and similarly there shall be distributed to my son, Jerry B. Beckett, all of the remaining income of the trust created in his name. Upon the death of my wife [husband], there shall be paid to each of my sons all of the
income of the trust created in the name of such son.... Subject to the payment herein provided for my wife [husband] and the wives of my sons, in the event of the death of either of my sons, the balance of the income of the trust created in the name of such son may, in the discretion of the trustees, be used for the support, education and maintenance of the child or children of such sons.
There is no question a trust was estab: lished in the name of C.M., Jr., and a separate trust was established’in Jerry’s name, each of which was funded with one-half of the residue of Mr. and Mrs. Beckett’s respective estates. However, the establishment of separate trusts with the provision of income to each son for life does not answer the question of the correct distribution of the corpus of each trust upon the death of C.M., Jr. (the last to die).
Texie points to Section VI(b) in support of her position that the corpus of each trust is to be divided equally among the grandchildren/great-grandchildren:
Each of the trusts herein created shall continue for the life of my wife [husband] and for the lives of both of my sons. Upon the death of my wife [husband] and my two sons, all of the assets and properties of the trusts herein created shall be divided into as many equal shares as there are children of my two sons surviving, together with an equal share per stirpes for the surviving child or children of any deceased grandchild, and such shares shall be immediately distributed to said grandchildren or great-grandchildren....
Texie specifically relies on the language to the effect that “all of the assets and properties of the trusts herein created shall be divided into as many equal shares as there are children of my two sons surviving....” Even though two separate trusts were created and the income from each was separately paid during the lifetimes of the two brothers, upon the death of the last of the surviving brothers, Texie maintains Section VI(b)
separates the corpus of each trust into three separate shares, to be paid to the surviving grandchildren (Beverly and Clint, III) and great-grandchild (Tex-ie). We agree.
It is clear that all trust assets are to be divided.
Texie logically maintains that “the trusts herein created” refer both to the C.M. Beckett, Jr. Trust and the Jerry B. Beckett Trust. Further, the “children of my two sons surviving” identifies those grandchildren surviving — C.M., Jr.’s sole surviving child, Clint, III, and Jerry’s sole surviving child, Beverly. The phrase “the surviving child or children of any deceased grandchild” identifies Texie, the surviving child of Jo Lynn Beckett Dyke, the deceased child of C.M., Jr. This language
cannot logically be interpreted as a bequest to Beverly of 100 percent of the assets of Jerry’s trust.
Texie also relies on the termination provision in support of her interpretation— i.e., neither trust’ terminates until the death of the last surviving son.
If the corpus of each trust was to be distributed to the descendants of the brother in whose name that trust was established (as Beverly argues), then it would be logical for each trust to terminate on the death of the son in whose name the trust was established. Under this scenario, when Jerry died in 1986, his separate trust would have then terminated and the corpus distributed to Beverly. In accordance with the provisions of the will, however, Jerry’s trust did not terminate in 1986; rather, it terminated in 2007 when C.M., Jr. died. From the time her father died in 1986, Beverly continued to receive income only from Jerry’s trust, in accordance with the provisions of the will.
Beverly relies on the will’s power of appointment
in support of her position that she is the sole beneficiary of the Jerry B. Beckett Trust, while Texie and Clint, III are the sole beneficiaries of the C.M. Beckett, Jr. Trust:
I hereby direct that each of my sons shall have the following power of appointment over the portion of estate which the children and grandchildren of such son would otherwise be entitled to receive whereby such son at his death, by his last Will, may determine the amount which each of his children and grandchildren shall receive, and may impose such terms, provisions and conditions, and may establish such trusts in respect of such portion as he shall determine in his last Will.
Beverly reads the power of appointment to apply only to the trust corpus of each separate trust, so that Jerry would have a power of appointment only over the corpus of the trust established in his name, and C.M., Jr. would have a power of appointment only over the corpus of the trust established in his name. If, in fact, the power was so restricted, its inclusion in the will would lend support to Beverly’s position that she is entitled to 100 percent of the assets of Jerry’s trust.
However, the power is not restricted in the manner Beverly suggests. It is limited only to “the portion of the estate” that each son’s “children and grandchildren would otherwise be entitled to receive.” It does not answer the question of
what portion
of the estate each son’s children and grandchildren are entitled to receive. The description of the target of the power does not contradict the plain language of the will stating that “all of the assets and properties of the trusts herein created shall be divided into as many equal shares as there are children of my two sons sur
viving....” The inclusion of the power of appointment is consistent with this language; it does not seek to define the portion of trust assets to which each beneficiary is entitled. Rather, it merely permits each son to exercise the appointment power over “the portion of the estate” his children and grandchildren would otherwise be entitled to receive.
When C.M., Jr. made his will, he chose to exercise the power of appointment, while Jerry did not.
C.M., Jr.’s exercise of this power merely required Clint, Ill’s portion of the trust assets to be held in trust for his benefit. Otherwise, the power of appointment plays no role in the determination of the summary judgment issues.
Beverly further relies on the perpetuit-ies clause
in support of her interpretation of the will:
The trusts herein created shall in any event terminate not later than twenty-one (21) years from and after the death of the survivor of myself, my wife, Jo B. Beckett, [my husband, C.M. Beckett, Sr.,] and all of my children and desceñ-dants living at my death, and upon such termination, the assets and properties comprising each particular trust theretofore not finally terminated shall be delivered and distributed, absolutely and in fee simple and free of trust, unto those parties who at the time of such termination constitute the income beneficiaries of that particular trust in the respective proportions in which said respective beneficiaries shall be receiving or entitled to receive income from said trust at the time of such termination.
There is no dispute the trusts did not terminate in accordance with this clause. However, in the event the foregoing clause acted to terminate the trusts, Beverly correctly recognizes the trust assets in Jerry’s trust would have gone to her, as the sole income beneficiary of that trust. This provision — dividing the collective assets of each particular trust among those parties who are the income beneficiaries of each trust — appears to reflect the intent that the corpus of each trust be devised to the descendants of the original income beneficiary of that trust. Said another way, it
would appear that the testators would not have determined to devise each respective trust corpus differently in the event termination was accomplished via the perpetuit-ies clause as opposed to termination upon the death of the last living income beneficiary.
Even so, it is the testator’s prerogative to include differing dispositive language in a provision which terminates the trusts in accordance with the perpetuities clause from the dispositive language of the last to die provision under which the trusts were actually terminated. The perpetuities clause does not contradict the dispositive language terminating the trusts and directing how the assets should be distributed. The inclusion of this clause provided an alternate method of asset distribution in the circumstance the trusts were terminated in accordance with its provisions. The trusts terminated at the death of the last survivor of the testators and their two sons, not because of this provision. Further, due to the manner in which the will was drafted, this clause could not have been dispositive. Because the trusts have already terminated, and this clause only addresses distribution of trust assets in the event they have not terminated within the time frame set forth in the rule against perpetuities, it is not relevant to the issue of how the trust assets are to be divided.
Texie and Beverly each maintain the will is reasonably susceptible only to one meaning. Texie claims the definite or certain meaning of the will is clear — that the corpus of each trust should be divided in three, equal shares. Conversely, Beverly claims the definite or certain meaning of the will is clear — that the corpus of each trust is devised only to the children/grandchildren of the son in whose name the trust was established.
All rules of will construction must yield to the basic intention and purpose of the testator as reflected by the entire instrument.
Wright v. Greenberg,
2 S.W.3d 666, 672 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (citing
Shriner’s Hosp. for Crippled Children of Tex. v. Stahl,
610 S.W.2d 147, 151 (Tex.1980)). Here, the plain language of Section VI(b), together with the termination clause, reflects the clear intent to divide each trust corpus into equal shares for the testator’s grandchildren and/or great-grandchildren. The trial court therefore erred in granting Beverly’s motion for summary judgment.
B. Beverly Failed to Raise A Material Fact Issue on Her Affirmative Defenses
Texie sought summary judgment on each of the affirmative defenses asserted in Beverly’s answer, pursuant to Rules 166a(c) and 166(a)(i) of the Texas Rules of Civil Procedure.
She maintains on appeal that the trial court erred in denying her motion for summary judgment on Beverly’s affirmative defenses because no evidence supported one or more elements of each defense.
Because she has demonstrated there are no material fact issues on the elements of her claim, Texie is entitled to summary judgment unless Beverly comes forward with a showing that there is a disputed fact issue upon affirmative de
fense.
See Gulf, C. & S.F.R. Co. v. McBride,
159 Tex. 442, 322 S.W.2d 492, 500 (1958). An affirmative defense will prevent the granting of summary judgment only if each element of the affirmative defense is supported by summary judgment evidence.
Barrand, Inc. v. Whataburger, Inc.,
214 S.W.3d 122, 143 (Tex.App.-Corpus Christi 2006, pet. denied). Accordingly, Texie is entitled to summary judgment as a matter of law unless Beverly can show each element of at least one of her affirmative defenses is supported by summary judgment evidence.
Beverly relies on the equitable affirmative defenses of judicial estoppel, estoppel by deed, equitable estoppel, waiver and quasi-estoppel.
(1) Judicial Estoppel
Judicial estoppel requires a showing of (1) a sworn, inconsistent statement made in a prior judicial proceeding, (2) the party making the statement gained some advantage by it, (3) the statement was not made inadvertently or because of mistake, fraud, or duress, and (4) the statement was deliberate, clear, and unequivocal.
Galley v. Apollo Associated Servs.,
177 S.W.3d 523, 528-29 (Tex.App.-Houston [1st Disk] 2005, no pet.). “The doctrine of judicial estoppel ‘precludes a party from adopting a position inconsistent with one that it maintained successfully in an earlier proceeding.’ ”
Pleasant Glade Assembly of God v. Schubert,
264 S.W.3d 1, 6 (Tex.2008) (quoting 2 Roy W. McDonald
&
Elaine G. Carlson,
Texas Civil Practice
§ 9.51 at 576 (2d ed. 2003)).
This affirmative defense is based on the inventory, appraisal and list of claims Tex-ie filed as the executrix of C.M., Jr.’s estate.
Beverly claims this inventory presents a sworn, inconsistent statement made in' a prior judicial proceeding in which Texie is unequivocally asserting that the properties belonging to C.M., Jr.’s trust are assets of C.M., Jr.’s estate.
As such, Beverly argues that Texie is representing to a court outright ownership of trust assets to be distributed under the terms of C.M., Jr.’s will rather than in accordance with the terms of the will creating the trust.
Texie claims that a listing of trust properties on the inventory does not reflect any position she may have taken regarding the identity of the beneficiaries of the assets of C.M., Jr.’s trust. The dispute here is not the identification of property to be distributed from the trusts, but is the identification of the ultimate beneficiaries and the percentage of trust assets each is to receive. We find nothing in the inventory, appraisal, and list of claims demonstrating a clear and unequivocal statement that is inconsistent with an assertion that the trusts are to be divided evenly by the beneficiaries. Beverly has failed to raise a material fact issue relative to this affirmative defense.
(2) Estoppel by Deed
This affirmative defense prevents a party from denying the truth of matters set forth in a deed the party has offered as grantor or has accepted as grantee.
Greene v. White,
137 Tex. 361, 153 S.W.2d 575, 583 (1941). This concept “stands for the general proposition that ‘all parties to a deed are bound by the recitals therein, which operate as an estoppel, working on the interest in the land if it be a deed of conveyance, and binding both parties and
privies Angell v. Bailey,
225 S.W.3d 834, 841 (Tex.App.-El Paso 2007, no pet.). Estoppel by deed may be involved only in a suit on the deed or concerning a right arising from the deed.
See Perry Nat’l Bank v. Eidson,
161 Tex. 340, 340 S.W.2d 483, 486 (1960).
Beverly contends that C.M., Jr. treated those properties in the C.M., Jr. trust as belonging to himself or his lineal descendants because he deeded several such properties to others, as well as to himself.
While this complaint may be appropriate for the severed “Distribution Issue,” it does not apply here because this matter does not involve a suit on a deed or a right arising from a deed. Rather, this matter concerns the appropriate division of the trusts’ assets among the beneficiaries. No material fact issue exists with respect to this affirmative defense.
(3) Equitable Estoppel
The affirmative defense of equitable estoppel requires a showing of (1) a false representation or concealment of material facts, (2) made with actual or constructive knowledge of those facts, (3) to a party without knowledge, or the means of knowledge, of those facts, (4) with the intention that it should be acted on, and (5) the party to whom it was made must have relied or acted on it to his or her prejudice.
In re A.L.G.,
229 S.W.3d 783, 786 (Tex.App.-San Antonio 2007, no pet.).
Beverly incorporated equitable estoppel (as well as quasi-estoppel) in her motion for summary judgment. The equitable es-toppel argument is based on the actions of C.M., Jr. in transferring assets from the C.M. Beckett, Jr. Trust.
The position taken by Texie necessarily implies that Beverly is, and always was, a vested remainder beneficiary of the C.M. Beckett, Jr. Trust. Beverly therefore claims that C.M., Jr., in his capacity as trustee, had a duty to inform Beverly of all transactions
affecting the trust.
See Johnson v. Peckham,
132 Tex. 148, 120 S.W.2d 786, 788 (1938). In failing to do so, Beverly basically alleges a breach of fiduciary duty claim. Because all such claims were severed by the trial court,
we do not consider them here.
(4) Waiver
The affirmative defense of waiver requires a showing of (1) an existing right, benefit, or advantage, (2) actual or constructive notice of its existence, and (3) an actual intent to relinquish that right.
Hourani v. Katzen,
305 S.W.3d 239, 256 (Tex.App.-Houston [1st Dist.] 2009, pet. denied).
Beverly relies on the inventory, appraisal, and list of claims in support of this affirmative defense, but fails to explain why this evidence supports this affirmative defense. Beverly has failed to raise a fact issue with respect to the affirmative defense of waiver.
(5) Quasi-Estoppel
The affirmative defense of quasi-estoppel precludes another party from asserting, to another’s disadvantage, a right inconsistent with a position he or she has previously taken.
Lopez v. Munoz, Hockema & Reed, L.L.P.,
22 S.W.3d 857, 864 (Tex.2000). The doctrine applies when it would be unconscionable to allow a party to maintain a position inconsistent with one in which he or she acquired or by which that party accepted a benefit.
In re Estate of Webb,
266 S.W.3d 544, 552 (Tex.App.-Fort Worth 2008, pet. denied);
Vessels v. Anschutz Corp.,
823 S.W.2d 762, 765-66 (Tex.App.-Texarkana 1992, writ denied). However, before the acceptance of benefits can trigger estoppel, it must be shown that the benefits were accepted with knowledge of all material facts.
Anadarko Petroleum Corp. v. Thompson,
60 S.W.3d 134, 142 (Tex.App.-Amarillo 2000),
rev’d on other grounds,
94 S.W.3d 550 (Tex.2002);
see Frazier v. Wynn,
472 S.W.2d 750, 753 (Tex.1971).
Beverly alleged quasi-estoppel as an affirmative defense and further asserted this equitable theory as a basis for summary judgment.
On appeal, Beverly argues that the inventory, appraisal, and list of claims Texie filed relative to C.M., Jr.’s, estate in 2007 is tantamount to a representation that C.M., Jr.’s will is determinative of the distribution scheme of the assets listed on the inventory. This is contrary to the method of distribution set out in the will which established the trusts. Beverly claims that under C.M., Jr.’s will, “Texie would take 1/2 under Junior’s will and a 1/3 under Senior’s and Jo’s wills.”
In her motion for summary judgment, Beverly relies on the following evidence in support of her quasi-estoppel argument: (1) C.M., Jr.’s will, (2) application for probate of C.M., Jr.’s will, (3) order admitting C.M. Jr.’s will to probate, and (4) the inventory, appraisal, and list of claims relative to C.M., Jr.’s estate. Beverly contends that because Texie already accepted assets belonging to C.M., Jr.’s trust, she is precluded from asserting rights to properties in Jerry’s trust.
The power of appointment authorized C.M., Jr. to designate by his will, from their portion of the trust, the amount that each of his children and grandchildren would receive from the trust distribution. It also allowed him to impose terms and establish trusts in respect of such portions distributed. C.M., Jr.’s will specifically invoked the power of appointment and designated the portion bequeathed to Texie in
trust for Clint, III. This property apparently was a part of C.M., Jr.’s trust.
C.M., Jr. left two bequests to Texie, for herself — one-half of his personal effects, motor vehicles, and other tangible personal property (not claimed to be a part of the trust) and one-half of the residuary of his estate. These designations or appointments were not in contravention of the wills of C.M., Sr., and Jo, and C.M., Jr’s will specifically referenced this grant of authority by his parents’ wills.
Texie contends nothing in the inventory addresses the identity of the Trusts’ ultimate beneficiaries. Further, C.M., Jr.’s decision to invoke his power of appointment and bequeath certain assets to Texie does not reflect any prior position Texie may have taken regarding the identity of the Trusts’ ultimate beneficiaries. Texie therefore contends that Beverly is unable to establish that Texie’s present position is inconsistent with any earlier position she may have taken.
We cannot conclude Beyerly has provided summary judgment evidence of her assertion that Texie has taken inconsistent positions such that it would be unconscionable to permit her to assert her contentions regarding the proper interpretation of the will. C.M., Jr.’s will clearly acknowledges the trust and the power granted to him by his parents’ wills and attempted to invoke that power of appointment. As previously discussed, the inventory, appraisal, and list of claims do not reflect any position Texie may have taken regarding the identity of the beneficiaries of the assets of C.M., Jr.’s trust. Further, there is no summary judgment evidence that Texie has actually accepted benefits. Even if Texie received such a bequest, Texie has never asserted that she has no interest in the Jerry B. Beckett Trust or that Beverly is not entitled to a portion of the C.M. Beckett, Jr. Trust. The decision to attempt to utilize the power of appointment to distribute trust holdings to Texie and Clint, III was that of C.M., Jr., and would not reflect Texie’s position regarding the proper distribution of trust assets. Consequently, we cannot say that Beverly has carried the burden on appeal to illustrate the existence of a material fact issue with regard to the defense of quasi-estop-pel.
Even assuming, as Beverly argues, that Texie received property which formerly belonged to the C.M. Beckett, Jr. Trust, quasi-estoppel is not applicable here. Estoppel is defensive in nature.
Hruska v. First State Bank,
747 S.W.2d 788, 785 (Tex.1988). That is, it exists to prevent the loss of existing rights, not to create them.
Id.
As previously discussed, the will provides that each grandchild/great-grandchild is to receive an equal share of both trusts. The termination provisions of the trusts entitle Tex-ie, Beverly, and Clint, III to one-third of the assets of Jerry’s trust and one-third of the assets of C.M., Jr.’s trust. The doctrine of quasi-estoppel cannot be invoked defensively to create rights that do not exist otherwise — i.e., that Beverly receive
100 percent of Jerry’s trust and Texie and Clint, III 100 percent of C.M., Jr.’s trust. Beverly therefore cannot invoke the doctrine of quasi-estoppel to fill the void in order to receive the entirety of the trust.
Y. Conclusion
We reverse the judgment of the trial court and render judgment in favor of Texie. Beverly, Texie, and Clint, III are each entitled to an equal share of the Jerry B. Beckett Trust and the C.M. Beckett, Jr. Trust. This opinion does not purport to resolve any issues severed by the trial court.