In Prather v. Callon Petroleum Operating Co., the court of appeals resolved a will construction issue that determined who owned certain mineral interests. No. 11-20-00189-CV, 2022 Tex. App. LEXIS 3200 (Tex. App.—Eastland May 12, 2022, no pet.). The decedent left all of her property equally to her two daughters and then stated: “In the event that one of the beneficiaries in this paragraph is not living at the time of my death, then his or her share shall go to the survivor(s) thereof.” One daughter predeceased the decedent. That daughter’s children believed that they owned half of the decedent’s minerals upon her passing, and signed mineral leases. The other daughter’s children thought that they owned all of the minerals as their mother had survived the decedent. Thereafter, various parties asserted claims regarding these minerals and the interpretation of the will.
The court of appeals stated as follows regarding will construction:
We construe whether a will is unambiguous as a matter of law. Here, the parties to this appeal each assert that Olga’s will is unambiguous—though they advance differing interpretations as to its meaning—and we agree. The “cardinal rule” of will construction is to ascertain the testatrix’s intent and to enforce that intent to the extent the law permits. We look to the instrument’s language, consider its provisions as a whole, and attempt to harmonize them so as to give effect to the will’s overall intent. We focus not on what the testatrix intended to recite, but on the meaning of the words she actually used. Such words, “whether technical or popular,” are construed “in their plain and usual sense, unless a clear intention to use them in another sense” is present in the instrument. Where a testatrix’s intent is clear, we need not resort to artificial rules of construction.
Id. The court then turned to the language of the will at issue:
Appellants posit that the phrase “survivors thereof” in Section II means the respective heirs of Margaret and June should either of them predecease Olga. We disagree… In the single paragraph that promulgates Section II of her will, Olga devised all of her property “to my children, [named], to share and share alike.” In the following sentence, she stated: “In the event that one of the beneficiaries in this paragraph is not living at the time of my death, then his or her share shall go to the survivor(s) thereof.” We hold that this provision, in this context, constitutes words of survivorship… We agree with the court’s reasoning in Gregg and reject Appellants’ argument that the terms “survivors” and “heirs” are one in the same. In fact, these terms differ and are not interchangeable… In Section II of her will, the “survivor(s) thereof” phrase that Olga included attached to the property that she devised to Margaret and June. In Section III, Olga also devised her residuary estate, including any lapsed gifts made by the will, to Margaret and June. Despite the designation of identical beneficiaries in each section of her will, Olga did not include any survivorship language in Section III, though it is reasonable to conclude that she was aware of this contingency and chose not to do so. Because Appellants would inherit as June’s heirs under the residuary clause of Section III or because other sections of the will designate Paul Prather as a potential substitute or successor trustee and executor is of no consequence. In this instance, neither scenario changes or precludes the meaning or intent of the last sentence of Section II… Undoubtedly, Olga required survivorship as a condition of either Margaret, June, or both of them taking under Section II of the will. As we have said, the meaning of survivorship is central to the disposition of this appeal. Common sense dictates that a “survivor” is one who remains alive or survives an event; we cannot conceive of a contrary interpretation. Therefore, because only Margaret was surviving at the time of Olga’s death, she alone took Olga’s estate under Section II.