Parker v. Henderson

712 S.W.2d 224, 1986 Tex. App. LEXIS 7601
CourtCourt of Appeals of Texas
DecidedMay 29, 1986
DocketNo. B14-85-451-CV
StatusPublished
Cited by1 cases

This text of 712 S.W.2d 224 (Parker v. Henderson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker v. Henderson, 712 S.W.2d 224, 1986 Tex. App. LEXIS 7601 (Tex. Ct. App. 1986).

Opinion

OPINION

DRAUGHN, Justice.

This is an appeal from a summary judgment interpreting the effect of a simultaneous-death clause in the joint will of William and Lillie Parker, deceased. The trial court considered summary judgment motions by the testators’ two surviving sons and by the two children of the testators’ third son who predeceased the testators. At issue was certain real property devised to the deceased son. The trial court granted summary judgment awarding that real property interest to the two grandchildren. We reverse and render judgment in favor of the surviving sons.

[225]*225The facts are undisputed. In 1971, William and Lillie Parker executed a joint will which contained three alternative dispositions of their estate. The first two of the three dispositions were to operate in the event that one spouse survived the other and respectively provided that the survivor could inherit the entirety of the deceased’s estate. The third disposition, a simultaneous-death provision, is the focus of this appeal. It reads as follows:

YI
In the event that both of us, the said Testators, shall die at the same time or as the result of a common accident or catastrophe, (in this regard should the survivor of us die within sixty (60) days after the date of the death of the first of us to pass away, it shall be conclusively presumed for all purposes under this will that we have died by common accident) then in that event we give, devise and bequeath unto our surviving children of this marriage, all of our property and estates, of every nature and description, real, personal, and mixed, and wherever situated in fee simple, as follows:
TO DONALD E. PARKER, 28⅛ acres on the east end of our 95 acre tract, to MARVIN W. PARKER the center 38⅛ acre tract with all improvements; and WILLIAM ALFRED PARKER, the west 33V3 acres. Our will is that the land be divided equally between our three sons after deducting five acres heretofore given to DONALD E. PARKER, (emphasis added).

The general testimentary scheme is clear: in the event of a surviving spouse, he or she was to inherit all; however, in the event of simultaneous death, the surviving children were to share equally in the estate.

In 1977 the Parkers died within four (4) days of each other from natural causes and were survived by two sons, appellants Marvin and Donald. Their other son, William, died in 1975 and was survived by the appel-lees, his daughters Aline and Betty.

In its order granting summary judgment, the trial court construed the will as disposing of the tract in the following manner: appellants Marvin and Donald received the east and center sections; and the appellees, by virtue of section 68, the anti-lapse provision of the Probate Code, received an equal share in the western section which was left to their father, William, who died intestate. The trial court did not specify the rules of construction used to reach this disposition. Appellants, in three points of error, complain that the trial court erred in dividing the property in such manner as to include any beneficiaries other than themselves.

In reviewing the pertinent section of the will, we must keep in mind the familiar rules governing the interpretation and construction of testamentary instruments. First we note that the testator’s intent is the single most important factor in construing a will. Kelly v. Marlin, 28 Tex.Sup.Ct.J. 410, 411 (May 11, 1985). All rules of construction must yield to the testator’s basic intent and purpose as reflected by the entire instrument. Welch v. Straach, 531 S.W.2d 319, 322 (Tex.1975). Furthermore, as both parties agree that the will is unambiguous, the true meaning of the will must be determined by construing the language within the four corners of the instrument. See generally Lehman v. Corpus Christi National Bank, 668 S.W.2d 687, 688 (Tex.1984). Therefore, it is our duty to give effect to the intention of the testators as it is expressed in the will. Corpus Christi National Bank v. Gerdes, 551 S.W.2d 521, 523 (Tex.Civ.App. — Corpus Christi 1977, writ ref’d n.r.e.).

Appellees contend that Section VI of the will is inoperative as none of the events specified concerning simultaneous deaths occurred. Appellees argue that the property disposition directed by Section VI would have been triggered if the testators (1) died at the same time, (2) died as the result of a common accident or catastrophe, or (3) died within sixty (60) days as a result of a common accident or catastrophe. Appel-lees conclude that since the testators died [226]*226within four days of each other from natural causes, the estate should be disposed of pursuant to the intestacy statutes.

We have reviewed the instrument as a whole and are unpersuaded by appel-lees’ analysis. The mere execution of a will creates a presumption that the testator intended to dispose of his entire estate and that he did not intend to die intestate as to the whole or any part of his property. Shriner’s Hospital v. Stahl, 610 S.W.2d 147, 151 (Tex.1980). Furthermore, if a will is open to two constructions, the interpretation preventing intestacy controls. Shriner’s Hospital, supra; Howard v. McCulley, 686 S.W.2d 650, 652 (Tex.App. — Dallas 1985, writ ref d n.r.e.).

The key language in the simultaneous-death clause provides that if the surviving spouse dies within sixty (60) days of the deceased spouse, it is to be presumed that death was by common accident. The presumption created by this language would be superfulous were appellees’ interpretation to be endorsed. It is well settled that a construction that gives effect to all the language of the will is preferred to an interpretation that treats part of the language as superfulous. Pipkin v. Hays, 482 S.W.2d 59, 61 (Tex.Civ.App. — Austin 1972, writ ref’d n.r.e.). Therefore, we rule that Section VI is operative and we now construe the effect of its terms.

Testators provided in their will that in the event of a simultaneous death, their estate was to pass to the surviving children of their marriage. They follow this with a specific devise to each son and conclude by stating that the land be divided equally between their three sons. The will contains no residuary clause, nor does it provide for the contingency that gives rise to this controversy, a predeceased son. We must construe the will to determine whether the term, surviving children, in the first portion of Section VI mandates that only appellants take under the will despite the specific devise which names appellees’ father.

Appellees, anticipating that an argument advancing intestate distribution would not be adopted, have cited various rules of construction which if followed entitle them to their father’s share of the estate.

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Related

Henderson v. Parker
728 S.W.2d 768 (Texas Supreme Court, 1987)

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Bluebook (online)
712 S.W.2d 224, 1986 Tex. App. LEXIS 7601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-henderson-texapp-1986.