                                                                                  ACCEPTED
                                                                              03-15-00492-CV
                                                                                      8353035
                                                                   THIRD COURT OF APPEALS
                                                                              AUSTIN, TEXAS
                                                                        12/22/2015 9:48:11 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK




                         NO. 03-15-00492-CV                  FILED IN
                                                      3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                                                      12/22/2015 9:48:11 PM
                IN THE THIRD COURT OF APPEALS             JEFFREY D. KYLE
                                                               Clerk

                     FOR THE STATE OF TEXAS


              HEATHER MARTIN AND JOHN BROWN

                                 V.

                         LEONORA BROWN


On Appeal From the County Court at Law Number 1 of Bell County, Texas


                REPLY BRIEF OF THE APPELLANTS


                  ORAL ARGUMENT REQUESTED



Tad H. Cleaves
TBA No. 24062667
Roberts & Roberts, LLP
2501 E. Elms Road, Suite A
Killeen, Texas 76542
Telephone: (254) 526-7541
Facsimile: (254) 526-5656
tcleaves@robertslegalfirm.com

ATTORNEY FOR PETIONERS AND APPELANTS




                                  i
                            TABLE OF CONTENTS

I.       ARGUMENT                                                          1

         A. The use of the word “occupy” in Mr. Brown’s will did not create
         ambiguity.                                                         1

         B. Extrinsic evidence should not be considered to determine
         Mr. Brown’s intent.                                               2

         C. Appellee’s position as Independent Executor is irrelevant.     3

II.      CONCLUSION                                                        3


                           TABLE OF AUTHORITIES

                               Texas State Cases

      San Antonio Area Foundation v. Lang,
         35 S.W.3d 636 (Tex. 2000)                                         2, 3


      Miller v. Wilson,
         888 S.W.2d 158 (Tex. App. – El Paso 1994)                         2, 3


      Turner v. Adams,
         855 S.W.2d 735 (Tex. App. – El Paso 1993, no writ)                3


      McGill v. Johnson,
         799 S.W.2d 673 (Tex. 1990)                                        3




                                        i
                          Other Materials

Brief of the Appellee                       1, 2, 3

Brief of the Appellants                     1




                                ii
I.     ARGUMENT

A.   The use of the word “occupy” in Mr. Brown’s will did not create
ambiguity.

       Appellee attempts to create the perception of an ambiguity of

language where one simply does not exist. “Occupy” is not an ambiguous

word. Appellee incorrectly argues in her Brief of the Appellee that because

“no specific definition is included in the body of the will to define or give

the testator’s interpretation of the word ‘occupy’” that an ambiguity is

created within the Will. Brief of Appellee, 2. When used in a real estate

context, “occupy” is not an ambiguous term. As discussed on pages 6 and 7

of the Brief of the Appellants, “occupy” and “occupancy” always includes

physical residence or possession. Brief of the Appellants, 6-7. Appellee

wants this Court to accept on faith a “broader sense of the word occupy”

Brief of Appellee, 2. Appellee fails to give a single example of or citation to

this broader sense of “occupation” to support a notion that mere ownership

or simple use is enough to “occupy” real property and satisfy this condition

of the will.




                                      1
B.  Extrinsic evidence should not be considered to determine Mr.
Brown’s intent.

      Where there is no ambiguity in a will, there is no need to use extrinsic

evidence to determine the testator’s intent. The Supreme Court of Texas held

that “Determining a testatrix’s intent from the four corners of a will requires

a careful examination of the words used. If the will is unambiguous, a

court should not go beyond specific terms in search of the testatrix’s

intent. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 640 (Tex.

2000) (emphasis added). In her brief, Appellee relies on an earlier lower

court decision for the proposition that the interpretation of a will should be

supplemented by evidence regarding the situation and circumstances of the

testator’s life at the time of the will’s execution – regardless of whether the

will contains any ambiguity. Brief of Appellee, 3, citing Miller v. Wilson,

888 S.W.2d 158 (Tex.App. – El Paso 1994). Miller does not stand for this

proposition. The Miller decision involves a testator who devised to his

second wife property that was owned in part by testator’s first wife.

Extrinsic evidence was important in the Miller case to determine how much

property was actually owned by testator at the time of his death – not to

determine testator’s intent. The actual text of the Miller decision at the

citation reported by Appellee reads as follows:




                                      2
      The threshold issue in interpreting a will is a determination of

      the intent of the testator. Id. at 160, citing Turner v. Adams, 855

      S.W.2d 735, 738 (Tex.App. – El Paso 1993, no writ), citing

      McGill v. Johnson, 799 S.W.2d 673, 674 (Tex.1990).

This section does not indicate a need for a court to look to extrinsic evidence

to determine a testator’s intent in all situations, and it fails to distinguish the

later Lang decision. The language of the will in the instant case is

unambiguous, and following the rule from Lang, looking to extrinsic

evidence for its interpretation was improper.

C. Appellee’s position as Independent Executor is irrelevant.

      Appellee also seems to argue that Appellee’s position as Independent

Executor of the will has some bearing on whether the devise at issue in this

appeal is subject to the condition of occupancy. Brief of Appellee, 4.

Appellee’s service as Independent Executor is unrelated to the language of

the devise at issue herein and is irrelevant to this analysis.


II. CONCLUSION

      The lower court’s ruling in this case should be reversed. The wording

of Last Will and Testament of Franklin Arthur Brown is exceedingly clear.

Mr. Brown grants a life estate in real property to his spouse subject to the

two conditions that (1) she survives and (2) that she “occupy” the real

                                        3
property. He thinks occupancy is so nice, he states the requirement twice. No

one need look beyond the words of the will to understand Mr. Brown’s

intention, and no one should. Appellee would prefer to not have an

occupancy requirement placed on this life estate, but that desire contradicts

Mr. Brown’s stated intention. This lower court erred in awarding an

unconditional life estate to Appellee, and Appellants pray this Court reverses

that decision.


                          Respectfully Submitted,

                          ROBERTS & ROBERTS, L.L.P.




                          By
                          Tad H. Cleaves
                          State Bar No. 24062667
                          2501 East Elms Road, Ste A
                          Killeen, Texas 76542
                          (254) 526-7541
                          Fax: (254) 526-5656
                          tcleaves@robertslegalfirm.com




                                      4
                         Certificate of Compliance

I certify that this brief was prepared with Microsoft Word 2012, and that,

according to that program’s word-count function, the sections covered by

TRAP 9.4(i)(1) contain 707 words.


                                        /s/ Tad H. Cleaves _______________
                                        Tad H. Cleaves
                                        Attorney for Appellants



                            Certificate of Service

      I certify that a true copy of this Brief of the Appellants was served in

accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each

party or that party’s lead counsel as follows:


Party: Leonora Brown

Lead attorney: Mary Black Pearson

Address of service: 2109 Birdcreek Terrace, Temple, Texas 76502

Method of service: by fax and by electronic service

Date of service: December 22, 2015


                                        /s/ Tad H. Cleaves _______________
                                        Tad H. Cleaves
                                        Attorney for Appellants




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