Court Held That A Testator Was Partially Intestate And Did Not Leave His Real Property To His Niece Under His Will

by Winstead PC

In In re Estate of Neal, Larry Ronald Neal executed a will in which he bequeathed his personal property to his niece, Valorie Jean White, and omitted a devise to his daughter. No. 02-16-00381-CV, 2017 Tex. App. LEXIS 10541 (Tex. App.—Fort Worth November 9, 2017, no pet. history). The will stated: “I do give and bequeath to my niece, Valorie Jean (Neal) White, all my personal effects and all my tangible personal property, including automobiles, hangars, aircraft, fly-drive vehicles, patents, companies, and all other things owned by me at the time of my death, including cash on hand in bank accounts in my own name, or companies[‘] names, or securities, or other intangibles.” Id. The determinative question in the case was whether Larry also devised his real property to Valorie. The trial court found that he did, awarded Larry’s real property to Valorie, and determined that no part of Larry’s estate passed by intestacy. Larry’s daughter appealed, claiming that Larry died partially intestate and that she should inherit his real property.

The court of appeals set forth the rules for construing wills as follows:

The cardinal rule for construing a will is that the testator’s intent must be ascertained by looking at the language and provisions of the instrument as a whole, as set forth within its four corners. The question is not what the testator intended to write, but the meaning of the words he actually used. Terms used are to be given their plain, ordinary, and generally accepted meanings unless the instrument itself shows them to have been used in a technical or different sense. If possible, all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testator’s intent. We must presume that the testator placed nothing meaningless or superfluous in the instrument. Where practicable, a latter clause in a will must be deemed to affirm, not to contradict, an earlier clause in the same will. Whether a will is ambiguous is a question of law for the court. A term is not ambiguous merely because of a simple lack of clarity or because the parties proffer different interpretations of a term. Rather, a will is ambiguous only when the application of established rules of construction leave its terms susceptible to more than one reasonable meaning. If the court can give a certain or definite legal meaning or interpretation to the words used, the will is unambiguous, and the court should construe it as a matter of law.

Id. (quoting Steger v. Muenster Drilling Co., 134 S.W.3d 359, 372-73 (Tex. App.—Fort Worth 2003, pet. denied)). The court went on to state that when construing wills that the court “cannot divorce text from context”:

The meaning of words read in isolation is frequently contrary to the meaning of words read contextually in light of what surrounds them. Given the enormous power of context to transform the meaning of language, courts should resist rulings anchored in hyper-technical readings of isolated words or phrases. The import of language, plain or not, must be drawn from the surrounding context, particularly when construing everyday words and phrases that are inordinately context-sensitive.

Id. (quoting In re Estate of Tyner, 292 S.W.3d 179, 182 (Tex. App.—Tyler 2009, no pet.)). “When the meaning of language used in a will has been settled by usage and sanctioned by judicial decisions, it is presumed to be used in the sense that the law has given to it, and should be so construed, unless the context of the will shows a clear intention to the contrary.” Id.

The court of appeals held that Larry first gave Valorie “all [his] personal effects,” which describes a subset of personal property. He then gave Valorie “all [his] tangible personal property, including automobiles, hangars, aircraft, fly-drive vehicles, patents, [and] companies,” which did not indicate an intent to devise real property. Id. He then gave Valorie “all other things owned by [him] at the time of [his] death, including cash on hand in bank accounts in [his] own name, or companies[‘] names, or securities, or other intangibles.” Id. The administrator argued that the “all other things” phrase devised Larry’s real property to Valorie. The court of appeals disagreed, stating:

Larry expressly linked “all other things” to bank account balances, which are intangible personal property; to securities, which are intangible personal property; and to “other intangibles,” a reference to the intangible personal property he had just described. Thus, we hold that without ambiguity, when read in context, the plain meaning of “all other things owned by me at the time of my death” is that Larry gave Valorie, without limitation, what remained of his personal property that was not encompassed in personal effects or tangible personal property, namely, his intangible personal property. Considering all three phrases together, nothing within Article II, the only provision within the will that purports to dispose of Larry’s property, expressly or implicitly refers to his real property. The natural, plain meaning of Article II is that the article applies to tangible and intangible personal property, not real property.

Id. The court stated that it would not apply the strong presumption against partial intestacy in the presence of an executed will: “The presumption ‘must yield,’ however, when the ‘the testator, through design or otherwise, has failed to dispose of his entire estate.’” Id.

Finally, the executor argued that the language that allows him to dispose of and convey “any property, real or personal,” in distributing the estate clearly indicates Larry intended real property to pass” under the will. Id. The court of appeals disagreed because the law permits an independent executor to exercise control over real property even when that property passes through intestacy, and Larry’s reference to “real or personal” property confirms that he knew the difference between those two types of property. Id. The court reversed the trial court’s judgment and held that the real property passed intestate to his daughter and not via Larry’s will to his niece.

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