                                 Fourth Court of Appeals
                                         San Antonio, Texas
                                                  OPINION

                                             No. 04-17-00005-CV

                           ESTATE OF Francisco RODRIGUEZ, Deceased

                           From the Probate Court No. 2, Bexar County, Texas
                                    Trial Court No. 2015PC0654-A
                               Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: January 10, 2018

AFFIRMED

           This appeal stems from a lawsuit against Frank Rodriguez, in his capacity as independent

executor and trustee of a testamentary trust created by the Last Will and Testament (the “Will”) of

Francisco Rodriguez. The lawsuit was brought by Appellant Blanca Rodriguez to enjoin the sale

of real property owned by Francisco at the time of his death which Frank contracted to sell to

Appellee Chris Christians. Christians intervened in the lawsuit asserting the language in the Will

expressly gave Frank 1 the power to sell the property. Blanca, as a beneficiary of the estate and

trust, contends that language in the trust created a right of first refusal in favor of the trust

beneficiaries. Christians and Blanca filed competing motions for summary judgment. The trial



1
 For purposes of this opinion, and in an attempt to alleviate confusion between the multiple individuals with similar
surnames, we refer to Francisco Rodriguez, Blanca Rodriguez, and Frank Rodriguez by their first names.
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court: (1) denied Blanca’s motion; (2) granted Christians’s motion; (3) severed all claims and

issues by and between Frank or Blanca and Christians; 2 and (4) ordered Frank to convey the

property to Christians. We affirm the trial court’s judgment.

                               FACTUAL AND PROCEDURAL BACKGROUND

         Francisco Rodriguez died in February 2015 leaving his Will, which generally benefitted

his four children and Blanca, his daughter-in-law. Francisco designated his son, Frank, as

independent executor of the Will and as trustee of the testamentary trust created by the Will.

         The Will was probated, and Frank qualified as independent executor of the estate and

trustee of the trust. The real property located in Von Ormy, Texas which is referred to as the

“Ranch” was the primary property in Francisco’s residuary estate. The Will devised the residuary

estate to a trust. Blanca, Frank, and two of Francisco’s other children were the beneficiaries of the

trust.

         In her lawsuit, Blanca alleged that when Frank decided to sell the Ranch, he told family

members they would be given an opportunity to match any offer he received. After Frank listed

the Ranch for sale, Blanca made various offers to purchase it, including a March 2016 offer for

$240,000.00. Despite these offers, on May 20, 2016, Frank entered into a contract, on behalf of

the Francisco Rodriguez Estate, to sell the Ranch to Christians for $259,900.00. Upon learning

about Christians’s offer, Blanca made another offer to purchase the Ranch for $265,000.00. 3 When

Frank refused to accept Blanca’s offer, Blanca filed the underlying lawsuit seeking a temporary

restraining order and injunction to prevent Frank from conveying the Ranch to Christians. In her




2
  The claims between Blanca and Frank remain pending in the original lawsuit.
3
  We note Blanca’s offer consisted of a $130,000.00 loan in the name of her daughter, Lisa Rodriguez, to purchase
Frank’s interest and that of his sister, Cynthia Rocha. The third beneficiary, Mary Ann Garay, agreed to allow Blanca
to acquire her interest on an owner-finance basis.

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pleadings, Blanca alleged the contract between Frank and Christians violated a right of first refusal

contained in the trust in favor of the trust beneficiaries. 4

        Christians intervened in the suit seeking specific performance of the contract to purchase

the Ranch. Blanca and Christians filed competing summary judgment motions pertaining to

whether Frank had the authority to sell the Ranch and whether the trust contained a right of first

refusal in favor of the trust’s beneficiaries. After hearing the arguments on the competing summary

judgment motions, the trial court denied Blanca’s summary judgment motion in its entirety,

granted Christians’ summary judgment motion, and ordered Frank to perform his obligations under

the contract. The trial court severed all claims and issues by and between Frank or Blanca and

Christians into a new cause.

        On appeal, Blanca contends the trust’s language created a right of first refusal in favor of

the trust beneficiaries. Christians counters Frank acted within the powers given under the Will as

independent executor and trustee of the trust. More specifically, Christians contends Frank was

given the express power to sell the Ranch and the trust’s language did not create a right of first

refusal in favor of the trust beneficiaries.

A.      Standard of Review

        To prevail on a traditional motion for summary judgment, the movant must show “there is

no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of

law.” TEX. R. CIV. P. 166a(c); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,

846 (Tex. 2005). An appellate court generally reviews a trial court’s granting of a summary

judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Because

the parties filed competing motions for summary judgment, and the trial court granted Christians’s


4
  Blanca also alleged fraud and breach of fiduciary duty claims against Frank; however, those claims remain pending
in the original lawsuit.

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motion and denied Blanca’s motion, we “determine all questions presented, and if the trial court

erred, render the judgment the trial court should have rendered.” Sw. Bell Tel., L.P. v. Emmett,

459 S.W.3d 578, 583 (Tex. 2015).

B.     Terms of the Will and Trust

       We begin our analysis by examining the specific terms of the Will and the trust created by

the Will.

       1.      Disposition of Estate (Section III and V)

       Francisco’s estate was comprised primarily of two pieces of real property: (1) the 327 Cass

House and (2) the Ranch. The 327 Cass House was devised and bequeathed to Francisco’s

daughter, Debra Ann Hernandez. Under Section III.D of the Will, the “rest of [Francisco’s] estate

interest” was devised and bequeathed to Frank’s other three children, “Mary Ann Garay, Frank

Rodriguez, Cynthia Rocha,” and to his daughter-in-law Blanca “in equal shares; to be held in

trust.” To effectuate this provision, the Will devised Francisco’s “residuary estate” to his trustee

under the terms of the trust created by the Will. Although the Will listed only four beneficiaries

of the trust, Section III.C of the Will devised a “1/5 interest, less $60,000 (the value of the 327

Cass House)” to Debra Ann Hernandez “if the trust sells my ranch that is part of the trust set out

herein.”

       2.      Powers of the Executor (Section IX)

       The Will gave Frank specific power as independent executor to sell the property of the

estate as follows:

       A.      I hereby grant unto my Independent Executor or any successor named
       above, full power and authority over any and all of my estate and they are hereby
       authorized to sell, manage, and dispose of the same or any part thereof, and in
       connection with any such sale or transaction, make, execute and deliver proper
       deeds, assignment or other written instruments and to do any and all things proper
       or necessary in the orderly handling and management of my estate.
                                                ***
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       C.      My Independent Executor or any successor named above, shall have full
       power and authority to deal with any person, firm or corporation including any
       trusts or trust estate created by this, my Last Will and Testament.

       3.      Powers of Trustee (Section V and VII)

       The trust also gave Frank specific power as trustee to sell the corpus of the trust as follows:

               [V] B. My Trustee can sell the corpus of this Trust, but it [is] my desire
       my ranch stay intact as long as it is reasonable. If the corpus is sold it shall be
       distributed as set out in Section III, C and D.
                                                   ***
               [VII] A. The Trustee during the continuation of each trust shall have the
       sole and complete right to possess, control, manage, and dispose of each trust estate
       and the said Trustee shall have the powers, rights, responsibilities and duties given
       to or imposed upon by trustees by the Texas Trust Code as such Code now exists.

C.     Construction of Wills and Trusts

       “The same rules of construction apply to both wills and trusts.” In re Ray Ellison

Grandchildren Trust, 261 S.W.3d 111, 117 (Tex. App.—San Antonio 2008, pet. denied); see also

San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000) (construction of will). The

construction of an unambiguous trust instrument is a question of law for the trial court. Hurley v.

Moody Nat’l Bank of Galveston, 98 S.W.3d 307, 310 (Tex. App.—Houston [1st Dist.] 2003, no

pet.). In interpreting a will or a trust, an appellate court’s focus is on the maker’s intent. See Lang,

35 S.W.3d at 639; Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App.—Fort Worth 2003, pet.

denied); Hurley, 98 S.W.3d at 310. An appellate court ascertains such intent from the language

used within the four corners of the instrument. See Lang, 35 S.W.3d 636; Eckels, 111 S.W.3d at

694 (explaining the will “speaks for itself”); see also Shriner’s Hosp. v. Stahl, 610 S.W.2d 147,

151 (Tex. 1980) (applying four-corners rule to construe a will).

       An appellate court may not focus its attention on what the testator “‘intended to write, but

[on] the meaning of the words [he] actually used.’” Lang, 35 S.W.3d at 639 (quoting Stahl, 610

S.W.2d at 151). That is, we must not redraft a trust instrument to vary or add provisions “under

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the guise of construction of the language of the [trust]’ to reach a presumed intent.” Id. (quoting

Stahl, 610 S.W.2d at 151); accord Frost Nat’l Bank v. Newton, 554 S.W.2d 149, 153 (Tex. 1977)

(“No speculation or conjecture regarding the intent of the testatrix is permissible where, as here,

the will is unambiguous, and we must construe the will based on the express language used

therein.”).

        This court must harmonize all terms to give proper effect to each part of the instrument; in

construing the instrument, we must give effect to all provisions and ensure that no provisions are

rendered meaningless. See Eckels, 111 S.W.3d at 694; Myrick v. Moody, 802 S.W.2d 735, 738

(Tex. App.—Houston [14th Dist.] 1990, writ denied). Provided the language of the instrument

unambiguously expresses the settlor’s intent, there is no need to construe the instrument because

“it speaks for itself.” Ellison Grandchildren Trust, 261 S.W.3d at 117; see Keisling v. Landrum,

218 S.W.3d 737, 741 (Tex. App.—Fort Worth 2007, pet. denied) (stating and applying rule that

when unambiguous language in a trust instrument expresses the settlor’s intent, construing the

instrument is not necessary because it speaks for itself).

D.      Precatory or Mandatory Language

        Blanca argues the language stating Francisco’s desire that “my ranch stay intact as long as

it is reasonable” is mandatory, rather than precatory; and, the mandatory language grants the

beneficiaries of the trust a right of first refusal to purchase the Ranch.

        A court’s analysis regarding whether particular words are precatory or mandatory turns on

“the testator’s expressed intent as evidenced by the context of the will and surrounding

circumstances, ‘and words which are precatory in their ordinary meaning will nevertheless be

construed as mandatory when it is evident that such was the testator’s intent.’” In re Estate of

Abshire, No. 02-10-00060-CV, 2011 WL 3671998, at *4 (Tex. App.—Fort Worth, pet. denied)

(mem. op.) (quoting Wattenburger v. Morris, 436 S.W.2d 234, 239 (Tex. Civ. App.—Fort Worth
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1968, writ ref’d n.r.e.)). Generally, courts construe words akin to “want,” “wish,” “request,” and

“desire” as precatory in their ordinary sense and not as imposing a legal obligation. Id.; see Bergin

v. Bergin, 315 S.W.2d 943, 947 (Tex. 1958) (recognizing that “[i]t is my desire” is usually

precatory language but can be changed to mandatory by the will’s context); Thomasson v. Kirk,

859 S.W.2d 493, 495 (Tex. App.—Houston [14th Dist.] 1993, writ denied). These same words,

however, become mandatory “‘when used in a will where it appears from the context or from the

entire document that they are the expression of the testator’s intention in disposing of his

property.’” Estate of Abshire, 2011 WL 3671998, at *4 (quoting First United Methodist Church

of Marlin v. Allen, 557 S.W.2d 175, 177 (Tex. Civ. App.—Waco 1977, writ ref’d n.r.e.)).

       In determining whether Francisco’s “desire” to have the Ranch stay intact was precatory

or mandatory, we must examine this desire in the context of the express powers given Frank as

trustee. As previously noted, the language granting Frank the power to sell the trust estate uses

mandatory language and provides Frank “shall have the sole and complete power to . . . dispose

of each trust estate.” In addition, the trust provides Frank “can sell the corpus” and includes

specific language regarding the distribution of the corpus in the event of such a sale by

incorporating an additional bequest to Debra Ann Hernandez “if the trust sells my ranch that is

part of the trust set out herein.” In view of the mandatory language used in granting Frank the

power to sell the corpus of the trust, we hold the reference to Frank’s “desire” to keep the Ranch

intact is precatory language which did not impose any legal obligation preventing Frank from

entering into the to sell the Ranch to Christians.

       We next turn to Blanca’s contention that the Will creates a right of first refusal in favor of

each of the beneficiaries.




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E.     Right of First Refusal

       “[A] right of first refusal or preemptive right to purchase requires the owner of the subject

property to offer the property first to the holder of the right on the same terms and conditions

offered by [or to a bona fide purchaser.]” City of Brownsville v. Golden Spread Elec. Co-op., Inc.,

192 S.W.3d 876, 880 (Tex. App.—Dallas 2006, pet. denied); accord Tenneco, Inc. v. Enter. Prods.

Co., 925 S.W.2d 640, 644 (Tex. 1996). If the owner desires to sell the property, and has an offer

he would accept, he must first offer to the holder of the right an opportunity to buy the property

on the terms offered by a bona fide purchaser. See Tenneco, Inc., 925 S.W.2d at 644; Comeaux v.

Suderman, 93 S.W.3d 215, 219 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

       Blanca argues Francisco’s statements to others, in combination with two clauses contained

within the Will, demonstrate his intent to create a right of first refusal for the beneficiaries under

the trust. See Lang, 35 S.W.3d at 639; Eckels, 111 S.W.3d at 694. She contends “the Trust created

by Section V of the will clearly evinces Francisco’s intent that the trustee keep the Ranch in the

family, and gives the beneficiaries the opportunity to buy out the other beneficiaries to accomplish

that goal.” More specifically, Blanca argues “the power of the trustee was limited by the right of

the beneficiaries to buy it.” Although Blanca makes reference to Francisco’s statements to others,

we remain mindful that our analysis is limited to the four corners of the document. See Lang, 35

S.W.3d 639; Eckels, 111 S.W.3d at 694.

       The clauses upon which Blanca relies are as follows:

       V. Trust, section B: “My Trustee can sell the corpus of this Trust, but it [is] my
       desire my ranch stay intact as long as it is reasonable.”
       V. Trust, section E: “If any of the four beneficiaries of his estate wants to sell
       their portion of the properties they can only sell it to the remaining beneficiaries.”

Neither of the clauses, however, requires the trustee to offer to anyone, much less the beneficiaries,

an opportunity to purchase the property on the same terms offered to another potential buyer.

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Rather than imposing limitations on the trustee’s power to sell, the second clause is designed to

impose limitations on a beneficiary’s power to sell, precluding a beneficiary from selling to anyone

other than another beneficiary. No similar limitation is imposed on the trustee’s power to sell.

       We conclude that neither of the clauses on which Blanca relies nor the Will as a whole

evidence an intent to limit Frank’s power to sell by creating a right of first refusal in favor of the

trust beneficiaries. See Tenneco, Inc., 925 S.W.2d at 644; Comeaux, 93 S.W.3d at 219; Ingrum v.

Ingrum, 520 S.W.2d 535, 537 (Tex. Civ. App.—San Antonio 1975, writ ref’d, n.r.e.) (explaining

the phrase “authorizes and empowers the executor to dispose of, sell, or mortgage any property

the decedent may die possessed of, as such executor may deem necessary” contains no limitations

on when or how such sale may occur). Accordingly, Francisco’s Will did not limit Frank’s

authority to sell the property as he deemed necessary and under the provisions he deemed

reasonable.

                                           OTHER ISSUES

       Blanca also contends the competent summary judgment proof created fact questions as to

whether Frank defrauded the beneficiaries or breached his fiduciary duties in entering into the

contract with Christians. However, because the trial court did not sever the claims between Frank

and Blanca, those claims remain pending in the original lawsuit. As a result, we do not have

jurisdiction to address any of Blanca’s issues with respect to Frank because this appeal is from the

trial court’s judgment disposing of the claims between Frank or Blanca and Christians.

       Finally, Blanca asserts that Christians failed to obtain a copy of the trust or the Will, and

thus failed to inquire into the extent of the trustee’s powers or the propriety of the exercise of those

powers. In other words, Blanca contends that because Christians failed to perform his due

diligence or his duty to inquire, any conveyance under the Will or trust was encumbered by the

beneficiaries’ right of first refusal. Because we have concluded the trust did not create a right of
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first refusal in favor of the trust beneficiaries, any failure by Christians to determine the extent of

the trustee’s powers did not encumber the conveyance with a right of first refusal in favor of the

trust beneficiaries. Therefore, we need not further address Blanca’s complaint. See TEX. R. APP.

P. 47.1.

                                            CONCLUSION

       Because Francisco’s “desire” to keep the Ranch intact was precatory language, the

language did not prevent Frank from entering into a contract to sell Christians the Ranch.

Additionally, neither Francisco’s Will nor the testamentary trust created by the Will contains a

right of first refusal in favor of the beneficiaries that limits Frank’s authority to sell the Ranch.

Accordingly, the trial court’s judgment is affirmed.

                                                    Patricia O. Alvarez, Justice




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