                                                                                    ACCEPTED
                                                                                03-15-00492-CV
                                                                                        8056321
                                                                     THIRD COURT OF APPEALS
                                                                                AUSTIN, TEXAS
                                                                           12/2/2015 3:03:30 PM
                                                                              JEFFREY D. KYLE
                                                                                         CLERK
                           NO.03-15-00492-CV 


                                                                FILED IN
                                                         3rd COURT OF APPEALS
                  IN THE THIRD COURT OF APPEALS         
 AUSTIN, TEXAS
                                                         12/2/2015 3:03:30 PM
                       FOR THE STATE OF TEXAS 
            JEFFREY D. KYLE
                                                                 Clerk


                HEATHER MARTIN AND JOHN BROWN 

                                    V. 

                           LEONORA BROWN 



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


                        BRIEF OF THE APPELLEE 





                    ORAL ARGUMENT REQUESTED




Mary Black Pearson
TBA No. 02373590
Pearson & Pearson
2109 Bird Creek Terrace
Temple, Texas 76502
Telephone: (254) 778-0699
Facsimile: (254) 778-0500
marybp@pearson-lawfirm.com

ATTORNEY FOR RESPONDENT AND APPELLEE
                                TABLE OF CONTENTS

I.     SUMMARY OF 11ffi ARGU:MENT.......................................... 1 


II.    ARGU:MENT...................................................................... 1 


III.   CONCL USION .................................................................... 5 

                                   TABLE OF AUTHORITIES 


1. Miller v. Wilson. 888 S.W. 2d 158, 160 (Tex. App. - El Paso 1994) ............. 3 


2. Turner v. Adams, 855 S. W. 2d 735.738 (Tex. App.-El Paso 1993, no writ).... 3 


3. McGill v. Johnson, 799 S. W.2d 673. 674 (Tex. 1990) ............................... 3 


4. Riedel v. Kerlick.474 S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ 

ref'd no error) .................................................................................... '" ... 3 


5. Butfod v. Holliman, 10Texas Reports 560 ............................................. 3 


6. Guilliams v. Koonsman. 154 Tex. 401, 279 S. W.2d 579 (Tex. Sup. 1955) ........ 3 


7. Singleton v. Donalson, 117 S. W.3d 516,518 (Tex. App.-Beaumont 2003, pet. 

denied) ...................................................................................... 3, 4 



                                       OTHER MATERIALS 


Briefofthe Appellants.............. ..................................................... 1,2 


Last Will and Testament ofFranklin Arthur Brown ..................................... 2 




                                          Record References

The Record citing convention contained below is used throughout Appellees'

Brief.



2RR                      Reporter's Record Volume Two of Three Volumes .............. 1 





                                                      ii
I.    SUMMARY OF THE ARGUMENT

      The Trial Court correctly interpreted the will to devise a life estate for the
benefit of the surviving spouse, Leonora Brown. Further, the Court construed from
the circumstances existing at the time of the execution of the will as set forth in the
record that the intent of the testator by the use of the word "occupy" did not
necessarily require her to physically reside at the property to have the customary
benefit of a life estate through the "use and enjoyment" of the property. The
record reflects that the parties did not have a residence on the property at the time
the parties married or at the time the will was executed in 2002. The Court
appropriately considered the construction of the will and the circumstances of the
testator and the property in question at the time of the execution of the will.
Testator's homestead was never the property in question and certainly wasn't at the
time of the execution of the will as admitted by Appellant. The surviving spouse
continues to occupy the property by paying the property taxes and leasing the
structures built after the parties married on the property for her use and enjoyment.
(2 RR 21-22,24) The surviving spouse should have a present right of possession
and use of the property as a life estate is traditionally seen with the remainder
interest vested in the Appellants.


II. ARGUMENT
      The issue before the Court turns on the Court's interpretation of "occupy"
and how it affects the term of the life estate ofthe surviving spouse. The appellant
does not dispute that a life estate is created but focuses on the rights of possession
and use customary to a life estate to be restricted based on appellant's defmition or
application of the word "occupy." See, Brief of the Appellants, page 3, Summary
of the Argument.


                                           1

      The language of the will specifically sets forth the reservation of a life estate
for the benefit of the surviving spouse, Lenora Brown, with the remainder interest
to the children. No specific definition is included in the body of the will to defme
or give the testator's interpretation of the word "occupy" as used in this section of
the will. Clearly the language of the will manifests an intent by the testator,
Franklin Brown, to specifically give his wife a life estate interested "for and during
her natural life ..." and this is not disputed by the parties. The will further qualifies
the bequest with " ...or until such time as she fail to occupy the same." This
qualifYing statement with its use of the word "occupy" is construed by appellant to
mean that the surviving spouse must physically occupy the real property as her
primary residence and ignores a broader sense of the word occupy including the
use and enjoyment of the benefit of the real estate. This ignores the premise
stressed in the Appellant's brief that the parties did not use this particular real
property as a primary residence at the time the will was executed and the fact that
it had no improvements on it at the time that they were married. See, Appellant's
brief, page 1-2. The circumstances after the will was executed are not a factor for
consideration for the Court in determining the intentions of the testator at the
signing of the will.
      Further, the bequest of the life estate and the remainder interest               IS

conditioned upon the bequest by the first paragraph of II. in the will stating:
      "After payment of my said debts including funeral expenses, expenses
      of last illness, and expenses which may be incurred in connection with
      the administration of my estate, I do hereby give, devise and bequeath
      all property, both real and personal, which I may own at the time of
      my death as follows: ...." See, Last Will and Testament of Franklin
      Arthur Brown.


                                            2

Therefore, all of the bequests including the bequest of this real property with the
life estate and the remainder interest at dispute are subject to the need to liquidate
the property for the payment of the expenses of administration and the surviving
spouse was named as the Independent Executor to administer the estate.
      The nature and extent of the devise of a life estate must be construed by the
language of the will.    Interpretation of a will begins with the analysis of the
contents of the document itself supplemented by evidence regarding the situation
or circumstances regarding the execution of the will or the testator's life at the time
of the execution. See, Miller v. Wilson, 888 S.W. 2d 158, 160 (Tex. App. - El
Paso 1994).    Such evidence is focused on the testator's intent at the time of
execution. See, id., citing Turner v. Adams. 855 S. W. 2d 735.738 (Tex. App.-EI
Paso 1993, no writ), citing McGill v. Johnson. 799 S. W.2d 673. 674 (Tex. 1990).
      A life estate devised to taker A gives a right of possession and enjoyment in
the present while such rights may be followed by a vested interest in the property
or the proceeds from the sale of the property in taker B with a future right of
enjoyment or possession of the remaining property. See, Riedel v. Kerlick.474
S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ ref'd no error), citing
Butfod v. Holliman, 10Texas Reports 560; and Guilliams v. Koonsman, 154 Tex.
401. 279 S. W.2d 579 (Tex. Sup. 1955).
      The Donalson case presents a will construction issue which is demonstrative
of the process the Court must use to determine the testator's intent regarding the
nature and extent of the conveyed life estate. In Donalson, the extent of the
conveyed life estate was expanded to include oil and gas royalties and bonuses by
the specific terms of the will. See, Singleton v. Donalson. 117 S. W. 3d 516,518
(Tex. App.-Beaumont 2003, pet. denied). However, this specific language of the
will expanded the extent of the life estate to allow the beneficiary the use of what
is traditionally considered the corpus of an estate and not necessarily the life
                                           3

tenant's property for use and enjoyment. See,id. The Court further states that in
the interpretation of the testator's intent from the language of the will that the law
favors the first taker and this premise was relied upon by the Court along with
consideration of the circumstances at the time of the execution of the will. Id. The
Donalson case further states that rental income from leases is traditionally part of
the benefit for a life tenant. Id.
       In determining the intent of Franklin Brown in the will that is before the
court, the court must look at the overall content of the bequests and the document
as a whole in addition to considering the facts as presented to the Court regarding
the circumstances of the testator at the time of the execution of the will.        The
testator's use of the word occupy at the time of the execution could not be
reasonably construed to require Leonora Brown physically reside at the property
when by the Appellant's own statement of facts the property did not have a
structure in use as a residence or homestead for the testator. Further, the surviving
spouse was not only given the right to "occupy" the property as a life tenant
presumably for her use and enjoyment but she was named the Independent
Executor with the right to dispose of property in order to pay the expenses of the
administration of the estate and clearly the beneficiary in other bequests in the will.
Given the contents of the document as a whole and considering the circumstances
at the time that the will was signed, the Court clearly interpreted the common
meaning of the word "occupy" to include the life tenant's use and enjoyment of the
property for its income potential and her use during her lifetime.




                                           4

ill. CONCLUSION
      The decision of the trial court should be affirmed. The will clearly gave
Leonora Brown, the surviving spouse, a life estate which is not disputed. The trial
court further determined the intentions of the testator to provide for the use of the
property by the life tenant from the language in the will along with the
circumstances presented in evidence by the Appellants regarding the condition of
the real property surrounding the time that the will was executed and the fact that it
was never the primary residence for the testator and his wife.        The trial court
clearly followed the case law by first addressing the specifics in the will and then
the circumstances at the time of the execution.


                                       Respectfully Submitted,
                                       PEARSON & PEARSON
                                       2109 Bird Creek Terrace
                                       Temple, Texas 76502-1083
                                       Telephone: (254) 778-0699
                                       Facsimile: (254) 778-0500
                                       marybp@pearson-Iawfirm.com




                                          5

                             Certificate of Compliance

I certify that this document brief was prepared with Microsoft Word 2010, and

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

TRAP 9.4(i)(I) contain 1433 words.




                               Certificate of Service

      I certify that a true copy of this Brief of the Appellee 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: Heather Martin and John Brown

Lead Attorney: Tad H. Cleaves

Address of Service:250 1 E. Elms Road, Suite A, Killeen, Texas 76542

Method of Service: by fax and electronic service

Date of Service: December 2, 2015




                                                 ary    ck Pearson
                                               Attorney for Appellee


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