Motion to Dismiss Denied; Reversed and Remanded and Opinion filed June 4,
2019.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-18-00256-CV

       IN THE ESTATE OF SETH SILVERMAN, M.D., DECEASED


                   On Appeal from the Probate Court No. 2
                           Harris County, Texas
                       Trial Court Cause No. 458363

                                 OPINION

      Appellant Karen Grenrood appeals the probate court’s summary judgment
denying a handwritten document admission to probate as the last will of Seth
Warren Silverman, deceased. The probate court ruled that the document does not
reflect any testamentary intent and does not transfer or dispose of any property.
We hold, however, consistent with Supreme Court of Texas precedent, that the
handwritten document can be testamentary in character because it appoints an
executor. Further, we disagree with the probate court’s legal conclusion that the
document does not transfer or dispose of the testator’s property because we
conclude it is ambiguous on that issue. We reverse the judgment and remand the
case for further proceedings consistent with this opinion.

                                   Background

      Seth Warren Silverman wrote the following on a piece of paper, entirely in
his handwriting on October 26, 2015:

      10/26/15
      Karen Grenrood is my executor, administrator, [and] has all legal
      rights to my estate in the case of my untimely or timely death.
                                                 Very truly yours,
                                                 [signature]
                                                 Jerry VanDaveer [witness]
                                                 Karen Grenrood [witness]
      Silverman was a forensic psychiatrist. Grenrood was Silverman’s office
manager and served in that capacity since approximately January 2015. Silverman
died on May 4, 2017. A month later, Grenrood applied to probate the handwritten
document as an alleged holographic will and asked the court to appoint her as
independent executrix.

      Brett Nathaniel Silverman and Gregg Joshua Silverman, the decedent’s
brothers, and Irma Lee Silverman, the decedent’s mother (the “Contestants”), filed
an opposition to probate and a contest to the alleged will. The Contestants asserted
that the handwritten document was not a valid will because Silverman did not
execute the instrument with the formalities required by law.           Further, the
Contestants alleged that Grenrood exerted undue influence over Silverman, and
that Silverman would not have executed the document but for Grenrood’s undue
influence. The Contestants asked the court to deny the alleged will admission to



                                          2
probate, to deny Grenrood’s application to be appointed independent executrix,
and to distribute Silverman’s estate to the Contestants under Texas intestacy law.

       The Contestants filed a motion for declaratory judgment, a traditional
motion for summary judgment, and an amended traditional motion for summary
judgment. The amended traditional motion for summary judgment is the relevant
motion for our purposes. The Contestants claimed that no issue of material fact
existed that the handwritten document does not convey property but at most merely
appoints Grenrood as an executor. For that reason, the Contestants argued, the
handwritten document lacks testamentary intent, is not a will, and should be denied
admission to probate. The court granted the Contestants’ amended motion for
summary judgment and refused to admit the handwritten document to probate as a
will, ruling that the handwritten document neither reflects testamentary intent nor
transfers or disposes of Silverman’s real or personal property.1

       After the probate court signed the summary judgment, the Contestants filed
an application to determine heirship. In that filing, the Contestants asserted that
Silverman was not married and had no children at the time of his death, and that
the Contestants were entitled to their respective shares of Silverman’s estate under
intestacy law.2 The probate court signed a judgment declaring that Silverman died
intestate, that Irma Silverman has a one-half interest in Silverman’s real and




       1
         The Contestants also moved for summary judgment on attorney’s fees, which the
probate court denied in a separate order. That issue is not before us.
       2
         Silverman signed two other instruments purporting to be his wills—one in 1996, and the
other in 2016. To the extent the Contestants have ever asserted that either the 1996 document or
the 2016 document separately or collectively constitute Silverman’s last will and testament, they
have abandoned those positions and instead seek distribution of Silverman’s estate under Texas
intestacy law. No issue regarding either the 1996 document or the 2016 document is before us
today.

                                               3
personal property, and that Gregg and Brett Silverman each have a one-fourth
interest in Silverman’s real and personal property.3

       Grenrood appeals the summary judgment and judgment of heirship.

                                     Motion to Dismiss

       Before we consider the merits of Grenrood’s appeal, we must first address
the Contestants’ motion to dismiss because it implicates this court’s appellate
jurisdiction. See Gutierrez v. Stewart Title Co., 550 S.W.3d 304, 308 (Tex. App.—
Houston [14th Dist.] 2018, no pet.). The Contestants moved to dismiss Grenrood’s
appeal for want of jurisdiction, arguing that she has no standing to pursue this
appeal.

       Eligible applicants to probate a will are an executor named in the will, an
independent administrator, or any interested person. Tex. Est. Code § 256.051(a).
Silverman named Grenrood as his executor in the handwritten document at issue.
Accordingly, Grenrood had standing to file an application for an order admitting
the alleged will to probate and has standing to appeal. Id.

       The Contestants further argue that Grenrood lacks “constitutional standing to
maintain this appeal” because she lacks “an actual grievance that could be
vindicated.”     We disagree.        Grenrood offered the handwritten document for
admission to probate, which the Contestants opposed. The probate court sustained
the Contestants’ contention that the instrument is not testamentary because it does
not purport to dispose of property.              Grenrood now appeals that judgment,
contending that the probate court erred in holding that the alleged will lacks
testamentary intent and in refusing to admit the will to probate on that ground. As
the losing party to that challenge, Grenrood has standing to pursue the appeal.
       3
         See Tex. Est. Code § 201.001 (providing for distribution of an estate of an intestate not
leaving a spouse).

                                                4
      We deny the Contestants’ motion to dismiss the appeal.

                                       Analysis

A.    Standard of Review

      The movant for a traditional summary judgment must show that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We apply de novo review to a traditional
summary judgment under Rule 166a(c), using the same standard that the trial court
used in the first instance. Doggett v. Robinson, 345 S.W.3d 94, 98 (Tex. App.—
Houston [14th Dist.] 2011, no pet.).

B.    Applicable Law

      A court’s first duty in a proceeding to admit a writing offered for probate is
to determine whether the writing is testamentary in character. Langehennig v.
Hohmann, 163 S.W.2d 402, 405 (Tex. 1942).              If the document is not of
testamentary character it is not a will and cannot be admitted to probate. Id.; see
also Hinson v. Hinson, 280 S.W.2d 731, 733 (Tex. 1955) (a will must be executed
with testamentary intent); In re Estate of Allen, 301 S.W.3d 923, 928 (Tex. App.—
Tyler 2009, pet. denied). We must ascertain the testator’s intent from the language
used within the four corners of the instrument offered for probate. Shriner’s Hosp.
v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). It is essential that the maker shall have
intended to express his testamentary wishes in the particular document offered for
probate. Hinson, 280 S.W.2d at 733.

      The requisite testamentary intent does not depend upon the maker’s
realization that he is making a will, or upon his designation of the instrument as a
will, but rather upon his intention to create a revocable disposition of his property

                                          5
to take effect after his death. Hinson, 280 S.W.2d at 733. Generally, to be
testamentary in character, a writing must possess certain essential characteristics.
See Utay v. Urbish, 433 S.W.2d 905, 909 (Tex. App.—Dallas 1968, writ ref’d
n.r.e.). The writing must be revocable during the maker’s lifetime. See, e.g.,
Magids v. Am. Title Ins. Co., 473 S.W.2d 460, 464 (Tex. 1971); Utay, 433 S.W.2d
at 909; In re Estate of Parrimore, No. 14-14-00820-CV, 2016 WL 750293, at *6
(Tex. App.—Houston [14th Dist.] Feb. 25, 2016, no pet.) (mem. op.). The writing
must be ineffectual as a transfer of any rights or interest before death. See, e.g.,
Magids, 473 S.W.2d at 464; In re Estate of Allen, 301 S.W.3d at 928; Utay, 433
S.W.2d at 909. Further, courts often state that the writing must operate to transfer,
convey, or dispose of the testator’s property upon death. See, e.g., Burton v. Bell,
380 S.W.2d 561, 568 (Tex. 1964); Hinson, 280 S.W.2d at 564; In re Estate of
Allen, 301 S.W.3d at 927-28; In re Estate of Parrimore, 2016 WL 750293, at *6.

       This last characteristic is the crux of the present appeal. The Contestants’
main premise below and in our court is that the handwritten document lacks
testamentary intent because it does not transfer property as a matter of law. The
trial court agreed when it granted summary judgment for the Contestants.4

       Whether the handwritten document transfers or devises any property is a
matter of document construction. Ordinarily, we would not construe a purported
will before its admission to probate because determining whether a purported will
is testamentary in nature generally does not involve its construction. In fact, “it is


       4
          Although the probate court’s order does not explicitly state that the handwritten
document lacks testamentary intent because it does not transfer property, this is the only
reasonable reading of the order. Whether the handwritten document transfers or devises
Silverman’s property is the only testamentary characteristic put into issue by the Contestants’
amended summary judgment motion. Thus, the only reason the probate court could have
concluded the document lacks testamentary character is because it does not transfer or devise
property.

                                              6
not the province of the court to construe a will in a proceeding for its probate.”
Langehenning, 163 S.W.2d at 405; see also Dallas Servs. for Visually Impaired
Children, Inc. v. Broadmoor II, 635 S.W.2d 572, 575 (Tex. App.—Dallas 1982,
writ ref’d n.r.e.) (“It is not necessary to construe a will to admit it to probate and
appoint an executor.”); In re Estate of Self, 591 S.W.2d 338, 340 (Tex. App.—
Tyler 1979, no writ). Construction of a purported will’s property disposition
typically occurs after the writing has been determined to be a will and has been
admitted to probate. See Langehenning, 163 S.W.2d at 405; accord also Tex. Est.
Code § 256.001 (“[A] will is not effective to prove title to, or the right to
possession of, any property disposed of by the will until the will is admitted to
probate.”).

      On occasion, however, courts have construed purported wills before
admitting them to probate. For example, it may be necessary or appropriate to
construe a writing offered for probate to decide whether it is testamentary. See
Boyles v. Gresham, 263 S.W.2d 935, 936 (Tex. 1954). Additionally, courts have
construed disputed language in a purported will before its admission to probate
when an interested party seeks a declaratory judgment, as the Contestants have
done here. See Estate of Rhoades, 502 S.W.3d 406, 410-11, 415 (Tex. App.—Fort
Worth 2016, pet. denied); McClure v. JPMorgan Chase Bank, 147 S.W.3d 648,
650 (Tex. App.—Fort Worth 2004, pet. denied) (granting summary judgment
declaring effect of alleged holographic will as to whether it revoked a prior trust
before admitting any will to probate); Harkins v. Crews, 907 S.W.2d 51, 55-57
(Tex. App.—San Antonio 1995, writ denied); see also Tex. Civ. Prac. & Rem.
Code Ann. § 37.004(a).

      In evaluating whether the handwritten document is testamentary because it
does not transfer or devise any property, we apply well-known principles. When a

                                          7
purported testamentary instrument contains no ambiguity, its construction is a
question of law that we review de novo. See Hancock v. Krause, 757 S.W.2d 117,
119 (Tex. App.—Houston [1st Dist.] 1988, no writ). However, when a will is
reasonably susceptible to more than one meaning, then it is ambiguous and its
interpretation usually is a fact issue. El Paso Nat’l Bank v. Shriners Hosp. for
Crippled Children, 615 S.W.2d 184, 185 (Tex. 1981); Alpert v. Riley, 274 S.W.3d
277, 286 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (op. on reh’g).
Ambiguity is a legal question. See Knopf v. Gray, 545 S.W.3d 542, 545 (Tex.
2018) (per curiam).

      We generally interpret the words of a will according to their plain, ordinary
meaning unless the will shows that they are used in another sense. Stephens v.
Beard, 485 S.W.3d 914, 916 (Tex. 2016) (per curiam). If the law affords a word a
technical legal meaning, courts ordinarily presume the testator intended this
technical usage unless the will indicates otherwise. Lacis v. Lacis, 355 S.W.3d
727, 733 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d w.o.j.). But informal
language used by a layman who drafted a will without an attorney’s aid will be
interpreted liberally, rather than technically, to effectuate the drafter’s intent.
Welch v. Straach, 531 S.W.2d 319, 321 (Tex. 1975).

C.    Application

      In Boyles, the Supreme Court of Texas considered the testamentary character
of a handwritten document offered as a will. Boyles, 263 S.W.2d at 936-37.
There, the testator wrote:

      this Letter is Written With the idea that Some thing might happen to
      me. that I would be wiped out Suddenly if this Should Happen my
      business would be in awful shape no relatives, nobody to do a thing
      So, this is written to try to have my affairs wound up in a reasonable
      way in case of my Sudden Death. Would Like to have all of my

                                        8
      affairs, Cash all assets including any Bank Balance turned over to
      Parties named below With out any Bond or any Court action that can
      be avoided.
      they to wind up my affairs in any way they See fit.
      U.C. Boyles Refrigeration Supply Co
      Charlie Hill Superior Ice Co
      Should these Gentlemen need a third man Would Suggest Walker.
      National Bank of Commerce
Id. at 936.

      After the testator’s death, U.C. Boyles applied to probate the instrument,
which the district court refused. Id. The district court and the court of appeals that
affirmed the lower court’s decision both held that the written instrument was not a
will because it did not make a testamentary disposition of property.               Id.
Construing the document to determine whether it was testamentary in nature, the
high court agreed that the document did not dispose of any property because the
instrument “goes no further than to provide that it be turned over to U.C. Boyles
and Charlie Hill, without bond or court action ‘to wind up [the testator’s] affairs.’”
Id. The court thus “construe[d] the writing as one that names or appoints executors
but does not purport to dispose of any property.” Id. The dispositive question then
was “whether such an instrument, when shown to have been executed as a will is
required to be executed, may be probated.” Id.

      After reviewing treatises and relevant case law, the court disagreed with the
lower courts’ holdings that the instrument was not a will and ultimately concluded:

      [W]e follow the rule, established by the great weight of authority and
      well supported by reason, that an instrument of testamentary nature
      and properly executed is a will if it appoints an executor, and should
      be admitted to probate when the required proof is made, even though
      it makes no devise or bequest or no effective devise or bequest of the
      testator’s property.

                                          9
Id. at 939. The court distinguished cases that stated the test for determining
testamentary character only in terms of whether the purported will disposed of
property. Id. at 938. The rule’s description was appropriate in those cases, which
turned on whether the instruments at issue disposed of property, and is usually
sufficient, “for most instruments purporting to be wills make disposition of the
testator’s estate.” Id. The court continued, “[t]he definition is not all-inclusive,
however, and it should not be taken to mean that an instrument properly executed
as a will and which names or nominates an executor but does not purport to
dispose of property cannot be admitted to probate as a will.” Id.

      In construing the purported will in Boyles, the court held as a matter of law
that the instrument named or appointed executors but did not devise property.
Boyles, 263 S.W.2d at 936. Here, for the reasons explained below, we construe the
handwritten document as one that, like Boyles, names an executor but, unlike
Boyles, is ambiguous as to whether it transfers or devises property.

      As to the issue of property disposition, the Contestants argue that that the
document merely grants Grenrood legal rights as the executor of Silverman’s estate
but does not bequeath any property rights. The Contestants contrast the dictionary
definition for “legal right,” which is a right created or recognized by law or a court
and “[t]he capacity of asserting a legally recognized claim against one with a
correlative duty to act,” with the definition for “property right,” which is the “right
to specific property, whether tangible or intangible.” Compare “Legal Right,”
Black’s Law Dictionary (10th ed. 2014), with “Property Right,” Black’s Law
Dictionary (10th ed. 2014). Under these definitions, say the Contestants, Grenrood
has the rights and powers of an executor but has been devised no ownership rights
to any of Silverman’s property. The Contestants also point to case law, in which
courts have held that language authorizing an administrator to “dispose[] of

                                          10
[property] as they see fit,” Preston v. Preston, 617 S.W.2d 841, 842 (Tex. App.—
Amarillo 1981, writ ref’d n.r.e.), or to “control all property . . . as he may deem
best and proper,” Ray v. Fowler, 144 S.W.2d 665, 669 (Tex. App.—El Paso 1940,
writ dism’d, judgm’t corr.), does not bequeath any property under a purported will.

      Grenrood, on the other hand, argues that the phrase “Karen Grenrood . . . has
all legal rights to my estate in the case of my untimely or timely death” is an
effective devise of all of Silverman’s property. Grenrood likens the phrasing in
Silverman’s document to “Everything is yours Darling,” which the court in Hinson
stated could effectively devise a decedent’s property. Hinson, 280 S.W.2d at 734.

      We conclude that both sides’ interpretations are reasonable, even presuming
it is appropriate to consider the extrinsic evidence presented in the record.
Although “legal rights” may have a technical legal usage in certain circumstances,
we are unaware of any authority positing that “legal rights” in an alleged
testamentary instrument means only rights as an estate’s personal representative or,
instead, rights to bequeathed property. We are hesitant to attribute to the term any
technical legal meaning in a probate law sense given that the document in question
is handwritten by a layman. See Welch, 531 S.W.2d at 321. We think that “legal
rights,” as used in Silverman’s document, is reasonably susceptible to more than
one meaning and is therefore ambiguous. The present writing would be more like
the one at issue in Boyles and supportive of the Contestants’ position if it contained
language such as “Karen Grenrood is my executor, administrator, and has all legal
rights to my estate in the case of my untimely or timely death, to wind up my
affairs in any way she sees fit.” (Emphasis added). But whether the handwritten
document does or does not dispose of Silverman’s property is a matter for the
factfinder to decide. If the document disposes of property then it may be admitted
to probate, presuming other testamentary characteristics exist.

                                         11
       Moreover, Boyles also held that an instrument, otherwise of testamentary
nature and properly executed, should be admitted to probate as a will if it appoints
an executor even if it does not devise or bequest any property. Boyles, 263 S.W.2d
at 939. The supreme court has not overruled Boyles, and no court has disapproved
it in the sixty-five years since its issuance. At least two intermediate courts of
appeals have expressly re-stated its holding in this regard. See Johnson v. Hewitt,
539 S.W.2d 239, 241-42 (Tex. App.—Houston [1st Dist.] 1976, no writ); Poole v.
Starke, 324 S.W.2d 234, 237 (Tex. App.—Fort Worth 1959, writ ref’d n.r.e.) (“A
purported will is not entitled to probate where it neither disposes of property nor
appoints an executor.”) (emphasis added). Our court has never addressed the
question, but we do so now and follow Boyles.

       This jurisprudential authority finds consistency in the Texas Estates Code,
which defines a “will” to include “a testamentary instrument that merely . . .
appoints an executor . . . .” Tex. Est. Code § 22.034(2)(A).5 Thus, a testamentary
instrument that merely appoints an executor to act as the personal representative of
a testator’s estate upon the testator’s death is, by statutory definition, a will. Id.

       We view the instrument at issue here—naming and appointing Grenrood as
Silverman’s “executor [or] administrator”—as materially indistinguishable from
the part of the instrument in Boyles that effectively appointed Boyles and Hill as
executors of the decedent’s estate.            The Contestants do not dispute that the
handwritten document appoints an executor. Assuming the handwritten document
does not transfer or attempt to transfer property, it appoints an executor and for that

       5
          Section 22.034 is, in relevant respects, identical to its predecessor. The legislative act
that established and adopted a probate code included the following definition: “‘Will’ includes
codicil; it also includes a testamentary instrument which merely appoints an executor or
guardian, and a testamentary instrument which merely revokes another will.” See Act of March
16, 1955, 54th Leg., R.S., ch. 55, § 3(ff), 1955 Tex. Gen. Laws 88, 91 (formerly codified as Tex.
Prob. Code § 3(ff), currently codified as Tex. Est. Code § 22.034).

                                                12
reason may be admitted to probate presuming other necessary testamentary
characteristics exist.   See Boyles, 263 S.W.2d at 938; see also Johnson, 539
S.W.2d at 241-42 (despite alleged ineffectiveness of a conditional devise, court of
appeals held that instrument was a will and should be admitted to probate, because
at a minimum it named an executor).

      For this reason, we reject the Contestants’ argument that the handwritten
document lacks testamentary intent because it does not dispose of any of
Silverman’s property.     The Contestants cite, among other cases, Preston v.
Preston, 617 S.W.2d 841, 844 (Tex. App.—Amarillo 1981, writ ref’d n.r.e.), for
the proposition that “[i]n the absence of expressed language evidencing a
testamentary disposition, a writing is not a will for the purpose of disposing of
property.” But Preston is inapposite because, in addition to the aforementioned
reasons, the will in Preston had been admitted to probate, and the court of appeals
was tasked with determining whether the will lawfully disposed of the testator’s
property or whether, instead, the testator died intestate. Id. at 842-43. Preston and
the related cases cited by the Contestants do not support their contention that a
purported will must dispose of property to be admitted to probate. In fact, the
court of appeals affirmed the trial court’s ruling that “the instrument in question is
effective as a will for the sole and only purpose of appointing Tom R. Preston and
Mattie Price as executors of the estate of Dora Diggs.” Id. at 843, 844. Thus,
Preston is consistent with Boyles, which expressly holds that a document
appointing an executor can be of testamentary character even if it devises or
bequests no property.     Boyles, 263 S.W.2d at 939; see also Tex. Est. Code
§ 22.034(2)(A).

      In sum, we hold that the probate court erred by denying the handwritten
document admission to probate on the ground that it lacks testamentary intent

                                         13
because it does not transfer or dispose of property. We reach this conclusion for
two reasons: (1) the document is ambiguous whether it disposes of property; and
(2) presuming it does not dispose of property, it names or appoints an executor, as
the parties agree.

                                        Conclusion

       We deny the motion to dismiss the appeal.               We reverse the judgment
because the Contestants failed to meet their burden of proving as a matter of law
that the handwritten document lacks testamentary intent for the reasons stated in
their amended summary judgment motion. We also reverse the probate court’s
order declaring heirship, which was predicated on the erroneous summary
judgment.6 We cannot render judgment that the handwritten document be admitted
to probate, however, as the Contestants raised at least one additional challenge,
regarding undue influence, to its validity. We remand the cause to the probate
court for further proceedings consistent with this opinion.




                                           /s/    Kevin Jewell
                                                  Justice


Panel consists of Justices Christopher, Jewell, and Bourliot.




       6
          See, e.g., Tex. Windstorm Ins. Ass’n v. Dickinson Indep. Sch. Dist., 561 S.W.3d 263,
281 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (“As the entire trial proceedings were
premised on erroneous summary judgment orders, the more prudent course of action is to restore
the parties to the status quo at the time of the summary judgment rulings and begin anew.”);
Union Pac. R.R. Co. v. Seber, 477 S.W.3d 424, 434 (Tex. App.—Houston [14th Dist.] 2015, no
pet.) (reversing court’s final judgment based on erroneous earlier summary judgment).

                                             14
