                                                                                                     ACCEPTED
                                                                                                 13-14-00667-CV
                                                                                 THIRTEENTH COURT OF APPEALS
        FILED                                                                           CORPUS CHRISTI, TEXAS
IN THE 13TH COURT OF APPEALS                                                                5/26/2015 3:33:54 PM
        CORPUS CHRISTI                                                                         DORIAN RAMIREZ
                                                                                                          CLERK
         05/21/15
                                      Case No. 13-14-00667-CV
DORIAN E. RAMIREZ, CLERK
BY cholloway
                                                                         RECEIVED IN
                                                                   13th COURT OF APPEALS
                                                 In the        CORPUS CHRISTI/EDINBURG, TEXAS
                               Court of Appeals for the Thirteenth District
                                                                    5/26/2015 3:33:54 PM
                                 of Texas at Corpus Christi – Edinburg
                                                                     DORIAN E. RAMIREZ
                                                                            Clerk


                                          IN THE ESTATE OF
                                  MILDRED OZELLA FAVOR PURSLEY,
                                A.K.A. MILDRED F. PURSLEY, DECEASED



                                  On Appeal from the Probate Court,
                                       Hidalgo County, Texas
                                       Cause No. P-34,801-A


                                 SUR-REPLY BRIEF OF APPELLEES


         Edmundo O. Ramirez
         Texas Bar No. 16501420
         eor@ekrattorneys.com
         Minerva I. Zamora
         Texas Bar No. 24037765
         miz@ekrattorneys.com
         Daniel Koeneke
         Texas Bar No. 24083320
         daniel@ekrattorneys.com

         ELLIS, KOENEKE & RAMIREZ, L.L.P.
         1101 Chicago Avenue
         McAllen, Texas 78501
         Telephone: (956) 682-2400
         Facsimile: (956) 682-0820
         Attorneys for Appellees, Harold Wayne
         Pursley, Jr., and Rolland Hugh Pursley                          May 21, 2015
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................... 2

INDEX OF AUTHORITIES...................................................................................... 4

SUMMARY OF SUR-REPLY .................................................................................. 7

ARGUMENT ...........................................................................................................11

         I.       TRIAL COURT’S RULING ............................................................... 11

         II.      TEXAS LAW FAVORS WILL CONSTRUCTION WHICH GIVES
                  EQUAL TREATMENT TO ALL HEIRS OF THE SAME
                  CLASS……......................................................................................... 13

         III.     HAROLD W. PURSLEY AND MILDRED F. PURSLEY
                  INTENDED TO BIND THEMSELVES TO THE TERMS OF THE
                  1975 WILL .......................................................................................... 14

         IV.      THE PRESUMPTION REGARDING THE USE OF DIFFERENT
                  LANGUAGE IN DIFFERENT PLACES OF A CONTRACT IS
                  INAPPLICABLE TO THE CASE AT BAR ...................................... 17

         V.       THE PHRASE “ANY CHILD OR CHILDREN” SHOULD BE
                  GIVEN ITS TECHNICAL MEANING .............................................. 19

         VI.      ROCKY WAIVED ANY APPEAL OF THE ISSUE OF
                  AMBIGUITY ...................................................................................... 20

         VII. APPELLEES’ SUPPORTING AUTHORITY PROVES THAT “ANY
              CHILD OR CHILDREN” MEANS ALL CHILDREN ...................... 23

         VIII. AT THE TIME OF HAROLD W. PURSLEY’S DEATH THE
               EXISTING CLASS MEMBERS (HAROLD JR., ROLLAND, AND
               ROCKY) WERE VESTED, SUBJECT TO ANY AFTER-BORN
               CLASS MEMBERS ............................................................................ 28


                                                           2
         IX.       CONCLUSION ................................................................................... 29

PRAYER .................................................................................................................. 31

CERTIFICATION OF RULE 9.4(i) COMPLIANCE ............................................. 32

CERTIFICATE OF SERVICE ................................................................................ 33




                                                             3
                                         INDEX OF AUTHORITIES
Cases

Allen v. Heinatz,
212 S.W.2d 987 (Tex.Civ.App.—Austin 1948, judgment aff’d) ............................ 26

Boone v. Stone,
142 S.W.2d 936 (Tex.Civ.App.—Fort Worth 1940, writ dismissed, judgment
correct) ..................................................................................................................... 24

Crow-Billingsley Stover Creek, Ltd. v. SLC McKinney Partners, L.P., No. 05-09-
00962-CV, 2011 WL 3278520 (Tex.App.—Dallas Aug. 2, 2011) ................... 21-23

DaimlerChrysler Motors Co., LLC v. Manuel,
362 S.W.3d 160 (Tex. App.—Fort Worth 2012, no pet.) ........................................ 27

Guilliams v. Koonsman,
279 S.W.2d 579 (Tex. 1955)............................................................................. 24-25

Houston v. Schuhmann,
92 S.W.2d 1086, (Tex.Civ.App.—Amarillo 1936, writ ref’d) .......................... 28-29

In re Agresti,
No. 13-14-00126-CV, 13-14-00149-CV, 13-14-00154-CV, 13-14-00168-CV, 2014
Tex. App. LEXIS 5689, 2014 WL 3408691 (Tex. App.—Corpus Christi May 29,
2014, orig. proceeding) (memo.op.) ........................................................................ 27

Jones v. Villareal,
No. 13-12-00166-CV, 2013 Tex. App. LEXIS 1782, 2013 WL 656839 (Tex.
App.—Corpus Christi Feb. 21, 2013, pet. granted, judgm’t vacated w.r.,) (mem.
op.) .....................................................................................................................23, 27

Murphy v. Honeycutt,
199 S.W.2d 298 (Tex.Civ.App.—Texarkana 1946, writ ref’d)............................... 18

Penland v. Agnich,
940 S.W.2d 324 (Tex.App.—Dallas 1997, writ denied) ......................................... 24

Progressive Cnty. Mut. Ins. Co. v. Kelley,
284 S.W.3d 805 (Tex. 2009) (per curiam) .........................................................22, 27

                                                               4
Sinnott v. Gidney,
322 S.W.2d 507 (Tex. 1959).................................................................... 9, 13-14, 21

Sullivan v. Skinner,
66 S.W.2d 680 (Tex.Civ.App. 1902, writ ref’d) ................................................ 24-26

Wiemers v. Wiemers,
683 S.W.2d 355 (Tex. 1984).................................................................................... 17

Statutes and Rules

Tex. R. Civ. P. 166a ................................................................................................. 22

Other Authorities

T. Atkinson, Law of Wills § 146 (2d ed. 1953) ............................................... 8-9, 19




                                                           5
                              Case No. 13-14-00667-CV


                                       In the
                     Court of Appeals for the Thirteenth District
                       of Texas at Corpus Christi – Edinburg


                                 IN THE ESTATE OF
                         MILDRED OZELLA FAVOR PURSLEY,
                       A.K.A. MILDRED F. PURSLEY, DECEASED



                         On Appeal from the Probate Court,
                              Hidalgo County, Texas
                              Cause No. P-34,801-A


                        SUR-REPLY BRIEF OF APPELLEES



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COME NOW Appellees Harold Wayne Pursley, Jr. and Rolland Hugh

Pursley and file this Sur-Reply Brief of Appellees, requesting that the Court affirm

the trial court’s Final Judgment. Parties will be referred to as in the trial court or by

name. References to the Clerk’s Record will be to {volume}CR{page}, and

references to the Appendices will be to App{tab}. References to the Statement of

Facts will be to SOF § {section}.
                            SUMMARY OF SUR-REPLY

       While Rocky may not approve or be in favor of his parents’ decision to

execute a contractual will, or agree with the binding effect the contractual 1975

Will had on their estates, Harold W. Pursley and Mildred F. Pursley undoubtedly

intended and did in fact agree to bind themselves to the unconditional devise

giving the remaining estate equally to all of the Pursley children. (1CR57); See

Appellees’ Brief Argument 41-44. This conclusion is supported by Texas case law

and the Texas Estates Code which define the phrase “any child or children” in the

wills and estates context to mean all children. More importantly, this conclusion is

also supported by Harold W. Pursley and Mildred F. Pursley’s intent, as evidenced

by the fact that they freely sought legal counsel to prepare a contractual will and

voluntarily executed the 1975 Will which wholly bound them to the specific

distribution of their estate to all of their children.

       Specifically, Harold W. Pursley and Mildred F. Pursley deliberately and

intentionally executed a contractual will in order to make certain that all their

children, Rocky Pursley, Harold Wayne Pursley, Jr., and Rolland Hugh Pursley,

and any subsequent child or children, were equally provided for after their passing.

       Rocky’s unsubstantiated interpretation of the technical phrase “any child or

children” rests on the premise that “[c]ourts should presume that when parties use

different language in different places of a contract, the difference is intentional.”


                                             7
Reply Brief of Appellant 11. However, in the present case, that presumption is

inapplicable. Rocky neglects to bring to the Court’s attention that while the two

phrases may achieve the same outcome in certain circumstances, they do not have

the same meaning. As explained in detail in Appellees’ Brief and the probate

court’s Final Judgment, the phrase “any child or children of this marriage” found

in Paragraph IV. of the 1975 Will is defined as any and all of Harold W. Pursley

and Mildred F. Pursley’s children. Thus, the phrase “any child or children”

specifically includes Harold Jr., Rolland, Rocky, and any after-born child or

children. When compared to the terms in Paragraph V. of the 1975 Will, which

restrict the distribution to only “Harold Wayne Pursley, Jr., Rolland Hugh Pursley

and Rocky Joe Pursley,” it is unmistakably apparent that these two phrases do not

have the same meaning. (1CR57).

      Further, as the well renowned Professor Thomas E. Atkinson has stated:

      However strong the argument for an objective standard in case of
      contracts, the words of a will should be given the meaning that the
      testator gives them as distinguished from the usual or dictionary
      meaning.

T. Atkinson, Law of Wills § 146 (2d ed. 1953) at 811-11 (emphasis added).

While the word “or” is in fact disjunctive, it is important to note that the phrase

“any child or children” was drafted by an attorney in the context of probate

distribution through a contractual will. Thus, the technical meaning of the phrase

“any child or children” must be distinguished from the usual or dictionary meaning
                                         8
of “or.” See id. As evidenced by the authority cited in Appellees’ Brief Argument

Section II., the language “any child or children” mandates the distribution to all

persons identified in that class, e.g. all of Harold W. Pursley and Mildred F.

Pursley’s children. See Appellees’ Brief Argument 41-44.

      It is important to note that even if this Court finds that there is “real doubt as

to the meaning of a will,” the Texas Supreme Court has expressly stated that “the

law favors a construction that gives equal treatment to all heirs of the same class.”

Sinnott v. Gidney, 322 S.W.2d 507, 512 (Tex. 1959). Notwithstanding the fact

that Rocky states that Sinnott v. Gidney, which he originally cited to in his

initial Brief in support of his construction of the 1975 Will, is now suddenly

“inapplicable,” the presumption favoring equal treatment to all heirs stands

unrebutted. See Appellant’s Brief 32-33; See also Reply Brief of Appellant 14.

      Further, Rocky waived any right to appeal the issue of ambiguity. (2CR250).

Advocates have an absolute duty of candor to the tribunal. Therefore, if Rocky’s

counsel did not agree with the statement that “both parties agree that the only

issue is a matter of law,” then he had the unconditional obligation, as an officer of

the court, to inform the probate court of his opposition. However, Rocky failed to

voice any opposition or attempt renounce the agreement until after: (1) the jury

trial was cancelled; (2) the probate court entered judgment against him; and (3)




                                           9
Appellees’ Brief was filed which brought Rocky’s waiver to the Court’s attention.

See Reply Brief of Appellant 15-16.

      In conclusion, the 1975 Will made a class gift to all the children of the

marriage. The use of the words “any” and “or” certainly did not eliminate the class

gift, nor did it make a disposition to only one or two children proper. Therefore,

Mildred F. Pursley’s attempt to disavow the dispositive provision by devising the

remaining estate to anyone other than all three children (and any after-born

children) violates the terms of the 1975 Will.

      As such, the trial court did not err in imposing a constructive trust in favor of

the devisees of the 1975 Will to the extent necessary to enforce the terms of the

1975 contractual Will. For these reasons, this Court should affirm the probate

court’s ruling.




                                          10
                                      ARGUMENT

I.    TRIAL COURT’S RULING.

      Significantly, Rocky’s arguments concerning his interpretation of the 1975

Will have already been rejected by the probate court in this matter. After reviewing

both Rocky’s and Harold Jr. and Rolland’s Motions For Summary Judgment,

examining the 1975 Will alongside the subsequent Will and First Codicil of

Mildred Pursley, analyzing the governing authority, and hearing thorough

arguments from both Rocky’s counsel and counsel for Harold Jr. and Rolland, the

probate court prepared and executed its own Order in which it expressly made the

following rulings:

      As a matter of law, the 1975 Will is a contractual will.

      As a matter of law, the language in paragraph IV., “any child or children of this
      marriage,” provided for the remainder of the estate to be conveyed as a class gift to
      Rocky, Harold, Jr., and Rolland.

      As a matter of law, the language in paragraph IV., “any child or children of this
      marriage,” mandates the distribution to all the children.

      As a matter of law, reading the 1975 will as a whole instrument, it was the “intent of
      Harold W. Pursley when he executed the 1975 will with his wife, that at his passing
      (if he died first) and at the subsequent passing of his wife, any estate left over was to
      go and vest in his beloved children Harold Wayne Pursley, Jr., Rolland Hugh
      Pursley and Rocky Joe Pursley, share and share alike.”

      As a matter of law, both the subsequent Will and Codicil executed by Mildred F.
      Pursley breached the terms of the 1975 Will.

(2CR208-209; 2CR270-71).




                                             11
        By virtue of its ruling, it can be inferred that the probate court not only failed

to discover any ambiguity within the 1975 Will, but the probate court also rejected

the following arguments proffered by Rocky:

    1. The probate court rejected Rocky’s argument that the 1975 Will is not contractual by
       finding, as a matter of law, that the 1975 Will is a contractual will;

    2. The probate court rejected Rocky’s argument that the phrase “any child or children”
       means that the survivor had the discretion to give the property to one or more of the
       children and is not required to give the property in equal shares by finding, as a matter of
       law, that the phrase “any child or children” mandates the distribution to Harold, Jr.,
       Rolland and Rocky, share and share alike;

    3. The probate court rejected Rocky’s argument that Harold W. Pursley and Mildred F.
       Pursley did not intend to be “shackled” by the non-discretionary terms of the 1975 Will
       by finding, as a matter of law, that it was the intent of Harold W. Pursley when he
       executed the 1975 Will with his wife that at his passing and at the subsequent passing of
       his wife, any estate left over was to go and vest in his beloved children Harold, Jr.,
       Rolland, and Rocky, share and share alike; and

    4. The probate court rejected Rocky’s argument that Mildred F. Pursley’s subsequent Will
       and First Codicil did not breach the terms of the 1975 Will by finding, as a matter of law,
       that both the subsequent will and codicil executed by Mildred F. Pursley breached the
       terms of the 1975 Will.

(2CR208-209; 2CR270-71).

        It is unequivocally clear by the probate court’s ruling that Harold Jr. and

Rolland have demonstrated, as a matter of law, that the 1975 Will is in fact a

contractual will which mandates that the remaining estate be distributed to Rocky,

Harold, Jr., Rolland, and any after-born child or children, share and share alike.1

(2CR208-209; 2CR270-71).



1
  Contrary to the probate court’s ruling, Rocky contends that this Court should ignore not only the legal principles
surrounding the pretermitted child statute, but also the technical meaning of the phrase “any child or children”
because Mildred was approximately 45 years old when the 1975 Will was executed. See Reply Brief of Appellee 10.

                                                        12
II.       TEXAS LAW FAVORS WILL CONSTRUCTION WHICH GIVES
          EQUAL TREATMENT TO ALL HEIRS OF THE SAME CLASS.

        In Sinnott v. Gidney, the Texas Supreme Court noted the following well-

established principle: “[i]n case of real doubt as to the meaning of a will, the law

favors a construction that gives equal treatment to all heirs of the same class.”

Sinnott v. Gidney, 322 S.W.2d 507, 512 (Tex. 1959). Here, to the extent there is

any doubt as to the meaning of the 1975 Will (which Harold Jr., Rolland and

Rocky contend there is not),2 this principle supports Harold Jr. and Rolland’s

construction of the 1975 Will to mean that the class gift conveyed to “any child or

children” was to be distributed equally. See id. Significantly, Sinnott v. Gidney was

first cited by Rocky in his initial Brief to the Court in support of his

construction of the 1975 Will. See Appellant’s Brief 32-33. Rocky has

subsequently concluded that this same case of Sinnott v. Gidney, which he initially

cited in support of his interpretation, “is inapplicable.” Reply Brief of Appellant

14. (Emphasis added). Interestingly, Rocky arrived at his conclusion that Sinnott v.

Gidney is now inapplicable to the case at bar after Howard Jr. and Rolland cited to

the above-quoted language from the Texas Supreme Court in Sinnott v. Gidney in

their Brief of Appellees. See Reply Brief of Appellant 14. Rocky’s dramatic shift

in his position regarding Sinnott v. Gidney is nothing but an attempt to mislead


2
 See Reply Brief of Appellant 14. (Rocky states “there is no real doubt as to the meaning of Paragraph IV’s ‘any
child or children’ language in the present case.”)

                                                        13
this Court and distract from the legal principles supporting the probate

court’s ruling. Rocky’s frivolous argument that Sinnott v. Gidney is somehow

“inapplicable” to this case cannot undermine the legal principle clearly articulated

in Sinnott v. Gidney that equal distribution among members of the same class is the

favored construction in interpreting the terms of a will. Sinnott, 322 S.W.2d at 512.

III.   HAROLD W. PURSLEY AND MILDRED F. PURSLEY INTENDED
       TO BIND THEMSELVES TO THE TERMS OF THE 1975 WILL.

       As evidenced by Rocky’s Reply Brief, Rocky seeks to take the pending

issues out of the contractual will context. In doing so, Rocky attempts to misguide

the Court and gain sympathy by restructuring his argument and stating that “the

correct formulation is whether the testators intended to contract away their right, as

survivor, to give the property to one or more of the children in shares deemed

appropriate by the survivor.” Reply Brief of Appellant 14. Rocky’s argument that

his parents did not intend to bind themselves to the terms of the 1975 Will (which

gives each of their children an equal share of the remaining estate) is unfounded

and wholly irrational, as it is entirely contradictory to the unequivocal, objective

design and proposition of a contractual will. It is well understood that contractual

wills are designed and executed by executors (typically spouses) to ensure that the

executors’ predetermined disposition (customarily made in the interest of their

children) does in fact transpire. In other words, spouses customarily elect to



                                          14
execute contractual wills in order to guarantee that their estate is distributed

as they wish in the event that they pre-decease the other spouse.

      In the present case, Harold W. Pursley and Mildred F. Pursley unmistakably

agreed to be bound by Paragraph IV. of the 1975 Will in order to ensure that each

of their three children, as well as any subsequent child or children of the marriage,

received an equal share of the estate. (1CR57).

      While Rocky may not approve or be in favor of his parents’ decision to

execute a contractual will, or agree with the binding effect the contractual 1975

Will had on his parents’ estates, Harold W. Pursley and Mildred F. Pursley

undoubtedly intended to “shackle” themselves to the non-discretionary terms of the

1975 Will. See Reply Brief of Appellant 6. Harold W. Pursley and Mildred F.

Pursley did so in order to make certain that all of their children, Rocky, Harold Jr.,

and Rolland, and any subsequent children, were equally provided for after Harold

W. Pursley and Mildred F. Pursley’s passing. Further, Rocky’s assertion to the

contrary fails to recognize the fact that if his parents did not intend to “shackle”

themselves to the terms of the 1975 Will they could have easily opted to execute

separate and non-contractual wills. As evidenced by the terms of the 1975 Will and

the thorough analysis of the governing authority set forth in Appellees’ Brief, that

did not occur. (1CR57).




                                         15
         Further, Rocky’s argument disregards the fact that if either Harold W.

Pursley or Mildred F. Pursley no longer wished to be “shackle[d]” to the terms of

the 1975 Will, they had the ability, before the death of the first spouse, to revoke

the 1975 Will. However, neither Mildred F. Pursley nor Harold W. Pursley did so.

Instead, Mildred F. Pursley allowed Harold W. Pursley to fully perform by abiding

by the terms of the 1975 Will until his ability to revise it had been terminated by

death.

         Mildred’s acceptance of the 1975 Will as a valid, controlling document is

evidenced by the Application for Probate of Will and Issuance of Letters

Testamentary filed by Mildred F. Pursley in the Estate of Harold W. Pursley,

which stated that Harold W. Pursley “left a valid written Will (‘Will’) dated April

29, 1975 which was never revoked.” (1CR61). (Emphasis added). Further, as seen

by this Inventory, Appraisement, and List of Claims, Mildred F. Pursley received

substantial consideration for executing the 1975 Will by offering it for probate. 3

(1CR67, 76).

         As the Texas Supreme Court has expressly held, “[i]t would be manifestly

unjust to permit the surviving party to the contract to disavow it and its

obligations, as those obligations are incorporated in their will, after the other party

has fully performed by abiding by it until his ability to revise it has been
3
 At the time the Inventory, Appraisement and List of Claims was filed, Harold W. Pursley and Mildred F. Pursley
owned certain assets worth approximately five hundred and thirty thousand dollars. Today, the remaining assets are
worth approximately three million dollars.

                                                       16
terminated by death.” Wiemers v. Wiemers, 683 S.W.2d 355, 357 (Tex. 1984).

Applying the holding in Wiemers to the case at bar, it would be manifestly unjust

to permit Mildred F. Pursley to now disavow the 1975 Will, which she expressly

acknowledged was valid upon her husband’s death, after Harold W. Pursley fully

performed by abiding by its terms until his passing.

IV.   THE PRESUMPTION REGARDING THE USE OF DIFFERENT
      LANGUAGE IN DIFFERENT PLACES OF A CONTRACT IS
      INAPPLICABLE TO THE CASE AT BAR.

      Rocky’s primary argument in support of his construction of the 1975 Will is

that “[c]ourts should presume that when parties use different language in different

places of a contract, the difference is intentional.” Reply Brief of Appellant 11.

Rocky states that in order for Harold Jr. and Rolland “[t]o succeed” with the

argument that their parents intended for the remaining estate to go to the three sons

equally, they must “demonstrate that the testators intended two different provisions

with remarkably different language to have the same meaning.” Reply Brief of

Appellant 6. However, in the present case, Rocky’s entire premise is

inapplicable. Rocky ignores the fact that while Harold Jr. and Rolland submit that

the two phrases at issue may achieve the same outcome under certain

circumstances, Harold Jr. and Rolland do not contend that these two phrases have

the same meaning. As explained in detail in Appellees’ Brief and the probate

court’s Final Judgment, Harold Jr. and Rolland aver that the phrase “any child or


                                         17
children of this marriage” set forth in Paragraph IV. of the 1975 Will is defined to

mean any and all of Harold W. Pursley and Mildred F. Pursley’s children. See

Brief of Appellees 39-43. In contrast, and contrary to Rocky’s argument, Harold Jr.

and Rolland contend that the terms in the subsequent Paragraph V. restrict the

distribution to only “Harold Wayne Pursley, Jr., Rolland Hugh Pursley and Rocky

Joe Pursley,” and do not include any after-born children. (1CR57).

      Further, Rocky’s argument is contrary to the well-settled legal principle in

Texas that “[t]he cardinal rule of construction of a will is that the intention of the

testator must be ascertained, if possible, at the time he executed the will…”

Murphy v. Honeycutt, 199 S.W.2d 298, 300 (Tex.Civ.App.—Texarkana 1946, writ

ref’d) (emphasis added). In accordance with Murphy v. Honeycutt, the definition of

the two phrases at issue here (Paragraphs IV. and V. of the 1975 Will) must be

interpreted as of the time Harold W. Pursley and Mildred F. Pursley executed the

1975 Will. At the time the 1975 Will was executed, Harold W. Pursley and

Mildred F. Pursley had three living children, Harold Jr., Rocky, and Rolland. It

was undetermined at the time the 1975 Will was executed whether any other

children would be born of the marriage. As such, it is unmistakably obvious that

these two phrases, while achieving the same outcome, do not have the same

meaning.




                                          18
V.    THE PHRASE “ANY CHILD OR CHILDREN” SHOULD BE GIVEN
      ITS TECHNICAL MEANING.

      Rocky heavily relies on the argument that the phrase “any child or children”

“means what it says” under the dictionary meaning of the word “or.” Reply Brief

of Appellant 9. However, “[i]f the testator employed a draftsman skilled in the use

of technical words these must be given their technical meaning.” T. Atkinson, Law

of Wills § 146 (2d ed. 1953) at 811. Further, the well renowned Professor Thomas

E. Atkinson has stated the following:

      However strong the argument for an objective standard in case of
      contracts, the words of a will should be given the meaning that the
      testator gives them as distinguished from the usual or dictionary
      meaning.

      Furthermore, to the extent that either a statute or established rule
      of decision attributes a certain meaning to particular words, that
      meaning must be accepted.

Id at 810-11 (emphasis added).

      While the word “or” is in fact disjunctive, it is important to note that here the

phrase “any child or children” was drafted by an attorney in the context of a

contractual will. Thus, contrary to Rocky’s argument, the technical meaning of the

phrase “any child or children” must be distinguished from the usual or dictionary

meaning of “or.” See id.




                                          19
VI.    ROCKY WAIVED ANY APPEAL OF THE ISSUE OF AMBIGUITY.

      Rocky asserts the absurd contention that because his attorney did not orally

agree with Mr. Ramirez’s statement made before the probate court, his attorney did

not necessarily concede that there were no fact issues to be decided by a jury. See

Reply Brief of Appellant 15. As stated in Appellees’ Brief, the transcript is as

follows:

      MR: RAMIREZ: Edmundo Ramirez for the movants, Your Honor, We’ve got a
      pretrial, Your Honor, and we have dueling summary judgments, for lack of a
      better term. We’ve argued them, and we’ve briefed them, and both parties agree
      that the only issue is a matter of law, and so we urge the Court to Rule.

      THE COURT: I guess we got these jury trial settings before we realized there was
      going to be a pending motion for summary judgment.

      MR. RAMIREZ: Right, right, we’ve refined it down to summary judgments.

      THE COURT: I have that case on my desk, and I’m going on vacation next week,
      so by Friday I’ll have a ruling for the parties.

      MR RAMIREZ: Thank you.

      MR. MURRAY: Thank, Your Honor.

(2CR250). (Emphasis added).

      Based on the parties’ agreement as set forth by Mr. Ramirez, the probate

court decided that a trial by jury was not necessary. As seen by the transcript,

Rocky’s attorney acquiesced in Mr. Ramirez’s representation through his silence

and made no objection to said representation during the pretrial hearing. (2CR250).

(Emphasis added). While Rocky’s attorney may not have explicitly voiced his




                                            20
agreement, it is unmistakably clear by his failure to object that he did in fact agree

with Mr. Ramirez’s statement.4

         Advocates have an absolute duty of candor to the tribunal. Therefore, if

Rocky’s attorney was not in agreement with the statement that “both parties agree

that the only issue is a matter of law,” then he had the unconditional obligation,

as an officer of the court, to inform the probate court of his opposition. (2CR250).

(Emphasis added).

         Notwithstanding the strict duty owed to the tribunal, Rocky failed to voice

any opposition or attempt to renounce the agreement until after: (1) the jury trial

was cancelled; (2) the probate court entered judgment against him; and (3)

Appellees’ Brief was filed which brought Rocky’s waiver to this Court’s attention.

See Reply Brief of Appellant 15-16. As with his contention that Sinnott v. Gidney

is “inapplicable,” as discussed above, Rocky’s recent assertion that he was not in

agreement at the time of the hearing further evidences Rocky’s intent to

wrongfully mislead the Court. See Reply Brief of Appellant 15-16.

        Rocky next alleges that it is inconsequential whether the issue of ambiguity

was raised in the trial court because this “Court would still need to determine

whether the 1975 Will is ambiguous.” Reply Brief of Appellant 16. (Emphasis

added). However, in Crow-Billingsley Stover Creek, Ltd. v. SLC McKinney

4
  Rocky also had a pending Motion For Summary Judgment which further evidences the agreement between parties
that there were no fact issues to be decided by a jury.

                                                     21
Partners, L.P., the Dallas Court of Appeals stated that they do not agree with the

proposition that a party does not have to plead ambiguity at the trial court level in

order to raise that issue in the appellate court in a summary judgment case. See

Crow-Billingsley Stover Creek, Ltd. v. SLC McKinney Partners, L.P., No. 05-09-

00962-CV, 2011 WL 3278520, at *8 (Tex.App.—Dallas Aug. 2, 2011) (citing Tex.

R. Civ. P. 166a(c). Under Texas Rule of Civil Procedure 166a governing summary

judgment proceedings, “[i]ssues not expressly presented to the trial court by

written motion, answer, or other response shall not be considered on appeal as

grounds for reversal.” Tex. R. Civ. P. 166a(c).

      In support of his position, Rocky first cites Progressive Cnty. Mut. Ins. Co.

v. Kelley, 284 S.W.3d 805, 808 (Tex. 2009) (per curiam). However, footnote three

of Progressive Cnty. Mut. Ins. Co. v. Kelley states that the plaintiff, bringing claims

against an insurance company for Insurance Code violations and breach of

contract, argued “during summary judgment, that the issue of whether there is two

policies may be a fact issue.” Id at Footnote 3. Further, the trial court in

Progressive Cnty. Mut. Ins. Co. entered judgment without specifying on which

grounds judgment was entered. See id at 806. Accordingly, the facts involved in

Progressive Cnty. Mut. Ins. Co. are not present here and that case is wholly

distinguishable from the case at bar.




                                          22
       Rocky next cites Jones v. Villareal, No. 13-12-00166-CV, 2013 Tex. App.

LEXIS 1782, at *17, 2013 WL 656839 (Tex.App.—Corpus Christi Feb. 21, 2013,

pet. granted, judgm’t vacated w.r.,) (mem. op.). However, the court in Jones v.

Villareal stated “[t]he issue of contractual ambiguity may be considered sua sponte

by a reviewing court.” Id (emphasis added). Thus, while a reviewing court may

consider the issue of ambiguity, Rocky has wholly failed to provide any supporting

authority for the contention that this Court “must” determine whether the 1975

Will is ambiguous. See Reply Brief of Appellant 16.

      Further, as discussed above, Rocky agreed that there were no fact issues to

be decided by a jury. Rocky’s contentions were raised in the context of

interpretation of unambiguous language. As noted in Crow-Billingsley Stover

Creek, Ltd. v. SLC McKinney Partners, L.P., the “law is clear that a disagreement

over the meaning of a contract provision does not render the provision

ambiguous.” Crow-Billingsley Stover Creek, Ltd. v. SLC McKinney Partners, L.P.,

No. 05-09-00962-CV, 2011 WL 3278520, at *8 (Tex.App.—Dallas Aug. 2, 2011).

VII. APPELLEES’ SUPPORTING AUTHORITY PROVES THAT “ANY
     CHILD OR CHILDREN” MEANS ALL CHILDREN.

      While acknowledging that Harold Jr. and Rolland have provided supporting

authority for the true definition of “any child or children,” Rocky states that the

authority cited in Appellees’ Brief is “very weak.” Reply Brief of Appellant 11.



                                        23
Specifically, Rocky contends that Harold Jr. and Rolland cite to old cases which

are inapplicable. See Reply Brief of Appellant 11.

      In response to Rocky’s first contention that the authority is “old,” it is a

well-recognized principle in Texas that courts “apply the law as it existed at the

time the will was executed.” Penland v. Agnich, 940 S.W.2d 324, 326 (Tex.App.—

Dallas 1997, writ denied). Therefore, while the cases supporting Harold Jr. and

Rolland’s contentions may be old, they are indeed the guiding authority which the

Court must follow in reviewing the probate court’s decision in the present case.

      Rocky also argues that Boone v. Stone, Guilliams v. Koonsman and Sullivan

v. Skinner are not applicable because in those cases there was only one child to

which the language applied. See Reply Brief of Appellant 11. Even though in

Boone there was only one child within the class gift to “any child or children,”

the court in analyzing the testator’s intent at the time of execution found “that

uppermost in testator's mind was the intention to bestow the objects of his bounty

upon his widowed daughter, her child, the minor, and any child or children that

should thereafter be born to her, as well also any child or children that should be

born to the son.” Boone v. Stone, 142 S.W.2d 936, 940 (Tex.Civ.App.–Fort Worth

1940, writ dismissed, judgment correct) (emphasis added). The court in Boone

specifically stated “[s]o intent was the testator that his daughter and her children

then born or to be born should be amply provided for.” Id.


                                         24
      In Guilliams, the court analyzed a will in which the testator devised his

estate to his son “and to his child or children if any survive him, and in the event

of [the testator’s son’s] death without issue surviving him, then to my son and

daughter.” Guilliams v. Koonsman, 279 S.W.2d 579, 583 (Tex. 1955) (emphasis

and alteration added). There, the court went as far as to say that the phrase “child

or children” and the term “issue” are interchangeable. See id (emphasis added).

Further, the court in Guilliams held that the “child or children” of the testator’s son

held a contingent remainder interest subject to their survival of the testator’s son.

Id at 581.

      Rocky also argues that Sullivan v. Skinner is not applicable because the issue

was “whether a debtor husband had any interest in rent from his wife’s separate

property.” and does not present the issue of how the phrase “any child or children”

is to be applied in the event of multiple children. Reply Brief of Appellant 12.

Rocky’s first contention ignores the fact that in order for the appellate court in

Sullivan to determine the issue stated above, it first had to review and analyze the

will devising the property at issue to the wife (who was also the testator’s

daughter). See Sullivan v. Skinner, 66 S.W. 680, 680 (Tex.Civ.App. 1902, writ

refused). In analyzing the will in Sullivan, which devised a life estate to the

wife/testator’s daughter “and on her death the same to belong to any child or

children,” the appellate court stated “[f]rom this it is apparent that [wife/testator’s


                                          25
daughter], took only a life estate in the property, and the remainder went to her

children in fee simple.” Id (emphasis and alteration added). Further, in response to

Rocky’s second contention, while the Sullivan v. Skinner opinion does not

expressly provide the number of children the wife/testator’s daughter had, it does

state that the remainder “went to her children,” evidencing the fact that she had

more than one child. Id.

      Rocky next contends that the cases cited by Harold Jr. and Rolland are not

applicable because they do not specifically address contractual wills. However, the

Austin Court of Appeals has stated that “the meaning applied to the language of a

will should be that usually and ordinarily understood to apply to similar language

used in other instruments of the same character.” Allen v. Heinatz, 212 S.W.2d

987, 988 (Tex.Civ.App.—Austin 1948), judgment aff'd) (emphasis added). All of

the authority cited by Harold Jr. and Rolland with respect to the phrase “any child

or children” concerns the distribution of estate assets in the context of probate

proceedings. On the other hand, Rocky relies on authority which has absolutely no

relation to probate proceedings, to specific terms of distribution in wills, or to the

Texas Estates code. See Reply Brief of Appellant 11, 16-17. For example, Rocky

cites to the following cases which are wholly irrelevant and have no application to

the case at bar:




                                         26
      Daimler Chrysler Motors C. V. Manuel concerns a suit brought by a
      franchised automobile dealer against an automobile manufacturer for
      breach of a settlement agreement and a release agreement.

See DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 166 (Tex.
App.—Fort Worth 2012, no pet.).

      In re Agresti concerns a suit brought by a doctor against numerous
      insurance companies, financial groups and a law firm for
      misrepresentation,      fraud,    civil    conspiracy,     negligent
      misrepresentation, and unjust enrichment in connection with the
      defendants' financial planning services and the purchase and sale of
      premium-financed life insurance policies.

See In re Agresti, No. 13-14-00126-CV, 13-14-00149-CV, 13-14-00154-CV, 13-
14-00168-CV, 2014 Tex. App. LEXIS 5689, at *22-26, 2014 WL 3408691 (Tex.
App.—Corpus Christi May 29, 2014, orig. proceeding) (memo.op.).

      Progressive Cnty. Mut. Ins. Co. v. Kelley concerns a suit brought by
      an insured against an insurance company for Insurance Code
      violations and breach of contract.

See Progressive Cnty. Mut. Ins. Co., 284 S.W.3d at 806.

      Jones v. Villareal concerns an interlocutory appeal from the trial
      court’s order denying a motion to compel arbitration under the Federal
      Arbitration Act.

Jones v. Villareal, No. 13-12-00166-CV, 2013 Tex. App. LEXIS 1782, at *2, 2013
WL 656839 (Tex. App.—Corpus Christi Feb. 21, 2013, pet. granted, judgm’t
vacated w.r.,) (mem. op.).

      It is also important to note that Rocky fails to cite any authority which

supports his frivolous argument that the phrase “any child or children” gave




                                        27
Mildred F. Pursley the right to unilaterally exclude one or two of her children from

receiving their fair share of the remaining estate.

VIII. AT THE TIME OF HAROLD W. PURSLEY’S DEATH THE
      EXISTING CLASS MEMBERS (HAROLD JR., ROLLAND, AND
      ROCKY) WERE VESTED, SUBJECT TO ANY AFTER-BORN
      CLASS MEMBERS.

      In a last ditch effort to find support for his baseless theory, Rocky argues

that the vesting provision in the 1975 Will stating that vesting does not take place

until the death of the survivor “makes sense only” if the survivor has discretion to

pick and choose which child or children gets the remaining estate. Reply Brief of

Appellant 13. However, this argument again completely disregards the fact that

the 1975 Will was phrased in a particular way to provide for any after-born

children. Specifically, the provisions of the 1975 Will took into account the fact

that Rocky’s father, Harold W. Pursley, could die the week after the 1975 Will was

executed, leaving behind a pregnant Mildred F. Pursley. Therefore, under Rocky’s

own reasoning, the vesting terms of the 1975 Will make absolute “sense” when

they are analyzed, in a logical approach, taking into account the uncertainty of

after-born children in the context of a contractual will.

      Lastly, Rocky contends that Harold Jr. and Rolland’s analysis of the time of

vesting is contrary to the general rule set forth in Houston v. Schuhmann. Reply

Brief of Appellant 13. The general rule in Houston v. Schuhmann is as follows:



                                          28
             The general rule is that a devise or bequest to a class, if no time for
             vesting is fixed will take effect at the death of the testator. But
             where the will either by express words or necessary implication
             fixes a different time, and the whole class is not then
             completed, the devise or remainder will vest in those then
             existing who will hold it subject to be opened so as to let in after-
             born persons who shall belong to the class at the time fixed by the
             will for its final completion.

Houston v. Schuhmann, 92 S.W.2d 1086, 1089 (Tex.Civ.App.—Amarillo 1936,
writ ref’d) (emphasis added).

      As seen above, the general rule is twofold. First, if the will does not fix a

different time for vesting then the gift vests at the death of the testator. See id.

Second, if the will does fix a different time for vesting, and the whole class is not

then complete, the remainder will vest in those then existing. See id. However,

the existing class members will hold their interest subject to any after-born

person belonging to the class. See id. In the present case, as discussed in

Appellees’ Brief, at the time of Harold W. Pursley’s death the existing class

members (Harold Jr., Rolland, and Rocky) were vested, subject to any after-born

class members. See id.; see Appellees’ Brief 48-49.

IX.   CONCLUSION.

      In conclusion, the 1975 Will made a class gift to all the children of the

marriage. The use of the words “any” and “or” certainly did not eliminate the class

gift, nor did it make a disposition excluding one or two children proper. The

members of the class living at the time (Rocky, Harold Jr., and Rolland) received a

vested interest at the death of Harold W. Pursley, subject to any after-born

                                               29
children. Subsequently, at the death of Mildred F. Pursley the class was

ascertained. Therefore, Mildred F. Pursley’s attempt to change the dispositive

provision to anyone other than all three brothers in equal shares is a violation of the

terms of the 1975 Will. Due to the fact that Mildred F. Pursley had no authority or

power to revoke the 1975 Will, the 1975 Will is binding upon the Estate of

Mildred F. Pursley, rendering all other subsequently-executed, inconsistent wills

unenforceable.

      Further, Rocky failed to properly plead the issue of ambiguity and waived

his right to a jury trial. In doing so, Rocky effectively waived his right to an appeal

on the issue of ambiguity. In the alternative, if this Court finds that Rocky’s

pleadings satisfied the requirements cited above, the terms of the 1975 Will are not

ambiguous as a matter of law. The technical phrase “any child or children” has a

definite and certain legal meaning.

      For these reasons, the trial court did not err in imposing a constructive trust

in favor of the devisees of the 1975 Will (Rocky, Harold Jr., and Rolland) in equal

shares, to the extent necessary to enforce the terms of the 1975 contractual Will.

Therefore, this Court should affirm the trial court’s ruling.




                                          30
                                     PRAYER

      For the foregoing reasons, Harold Jr. and Rolland respectfully request that

this Court uphold the trial court's November 20, 2014 Final Judgment granting

Harold Jr. and Rolland’s Motion for Summary Judgment. Harold Jr. and Rolland

also request such further relief to which they may be entitled.

                                       Respectfully submitted,
                                               ELLIS, KOENEKE & RAMIREZ L.L.P.
                                               1101 Chicago Avenue
                                               McAllen, Texas 78501
                                               Telephone (956) 682-2440
                                               Facsimile (956) 682-0820

                                               By: /s/ Edmundo O. Ramirez
                                                       EDMUNDO O. RAMIREZ
                                                       State Bar No. 1650142
                                                       eor@ekrattorneys.com
                                                       THOMAS D. KOENEKE
                                                       State Bar No. 11652500
                                                       tdk@ekrattorneys.com
                                                       MINERVA I. ZAMORA
                                                       State Bar No. 24037765
                                                       miz@ekrattorneys.com
                                                       DANIEL KOENEKE
                                                       State Bar No. 24083320
                                                       daniel@ekrattorneys.com
                                               Attorneys for Appellees Harold Pursley,
                                               Jr., and Rolland Pursley




                                          31
               CERTIFICATE OF RULE 9.4(i) COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this Sur-Reply of Appellees, excluding those matters

listed in Rule 9.4(i)(1) is 6,015 words per the word processing program used for its

preparation (Microsoft Word).


                                                          /s/ Daniel Koeneke
                                                            Daniel Koeneke




                                         32
                          CERTIFICATE OF SERVICE

      I certify that the foregoing document was electronically filed with the Clerk

of the Court using the electronic case filing system of the Court. I also certify that a

true and correct copy of the foregoing was served on the following counsel of

record on May 21, 2015 as follows:

Recipient:                         Attorney for:            Served by:

J. Joseph Vale                     Appellant, Rocky         Electronically if available,
jvale@atlashall.com                Pursley                  or by facsimile and e-mail
Charles C. Murray
ccmurray@atlashall.com
Atlas, Hall & Rodriguez, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501


Marlane A. Meyer                   Temporary                Electronically if available,
Mmeyer308@aol.com                  Administrator,           or by facsimile and e-mail
Meyer & Guerrero, L.L.P.           PlainsCapital Bank
308 N. 15th Street
McAllen, Texas 78501




                                                            /s/ Daniel Koeneke
                                                            Daniel Koeneke




                                           33
