                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-13-00417-CV


In the Estate of Robert R. Cole,          §    From the Probate Court
Deceased
                                          §    of Denton County (PR-2009-00804)

                                          §    January 29, 2015

                                          §    Opinion by Justice Gabriel

                                   JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in part of the trial court’s judgment.       It is ordered that the

judgment of the trial court is affirmed in part and reversed in part. The trial court

correctly determined that whether the will put Judith Cole to an election was a

question of law for the court to determine; however, the trial court erred by

concluding as a matter of law that Robert R. Cole, Sr.’s will put Judith Cole to

such an election. Judith Cole did not contest the will such that the forfeiture

clause was triggered; thus, the jury should not have been instructed on Judith

Cole’s affirmative defense. However, because Judith Cole did not contest the

will under the forfeiture clause, the submission of the affirmative defense was

harmless. The evidence sufficiently supported the jury’s finding that the repairs

and improvements to the homestead were not capital improvements subject to
reimbursement. These holdings, taken as a whole, result in our conclusion that

the trial court’s judgment must be reversed in part, and we render a judgment for

Judith Cole awarding her one-half of the shares in the investment account that

were not determined to be Robert R. Cole, Sr.’s separate property. We affirm the

remainder of the trial court’s judgment. See Tex. R. App. P. 43.2(a), (c).

      It is further ordered that all parties shall bear their own costs of this appeal,

for which let execution issue.


                                      SECOND DISTRICT COURT OF APPEALS



                                      By /s/ Lee Gabriel
                                          Justice Lee Gabriel
