Appellants’ Motion for Rehearing Granted in Part and Overruled in Part;
Memorandum Opinion of September 15, 2011 Withdrawn; Affirmed as Modified
and Substitute Memorandum Opinion filed December 8, 2011.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-09-00924-CV


  SHARON SWANK BACKHUS, BENJAMIN F. SWANK, III, SHANNON LEA
    WERCHAN PICKERING, SWANK TURNER BACKHUS, BENJAMIN
   FONTAINE SWANK, IV, CHRISTIAN HARRIS SWANK, AND SUZANNE
                   SWANK PORTER, Appellants

                                       V.

    HAVEN LYN WERCHAN WISNOSKI AND SHANE ALAN WERCHAN,
                         Appellees


                      On Appeal from 506th District Court
                            Grimes County, Texas
                         Trial Court Cause No. 31,343


     SUBSTITUTE MEMORANDUM OPINION

      We grant in part and overrule in part appellants’ motion for rehearing.   We
withdraw our opinion of September 15, 2011 and issue this substitute memorandum
opinion.
       Appellants, Sharon Swank Backhus, Benjamin F. Swank, III, Shannon Lea
Werchan Pickering, Swank Turner Backhus, Benjamin Fontaine Swank, IV, Christian
Harris Swank, and Suzanne Swank Porter, appeal a summary judgment in favor of
appellees, Haven Lyn Werchan Wisnoski and Shane Alan Werchan, denying appellants’
request for declaratory relief relative to an attempt to partition certain real property and
reforming the partition deeds. We modify several portions of the judgment and affirm as
modified.

                                    I. BACKGROUND

       Appellants, Sharon Swank Backhus (―Backhus‖) and Benjamin F. Swank, III
(―Swank‖), were grandchildren of E.W. Harris (―Harris‖), now deceased. Under Harris’s
will (―the will‖), Backhus and Swank were each granted a one-half, undivided life estate
in certain real property located in Grimes County, Texas. All parties agree that the will
also provided for fee simple title to vest in the children of Backhus and Swank (―the
remaindermen‖) after both life tenants have died. Backhus and Swank collectively have
seven children.

       In 2006, Backhus and Swank each executed and filed in the Grimes County
records a ―Partition Deed‖ attempting to partition the property into two relatively equal
parts. The deeds were worded such that each life tenant and his or her ―heirs, personal
representatives, successors, and assigns‖ would hold title to the life tenant’s portion of
the partitioned property. Backhus and Swank requested their respective children to ratify
the partition deeds. All children agreed except Haven Lyn Werchan Wisnoski and Shane
Alan Werchan (collectively ―appellees‖), who are both children of Backhus.

       Backhus, Swank, and the five children who agreed to the partition (collectively
―appellants‖) sued appellees, seeking a declaratory judgment that the partition was
authorized under the will and was valid, enforceable, and binding on all remaindermen.
The trial court denied this relief. The First Court of Appeals affirmed, holding (1) the
partition was invalid because the life tenants purported to partition fee simple title but
Texas law precludes holders of life estates from partitioning property to grant higher

                                             2
estates than they own, and (2) partition binding on the remaindermen was not authorized
under the will. See Backhus v. Wisnoski, No. 01-07-00041-CV, 2008 WL 660013, at *3–
5 (Tex. App.—Houston [1st Dist.] Mar. 13, 2008, pet. denied) (mem. op.) (―Backhus I‖).
The Supreme Court of Texas denied appellants’ petition for review.

       In August 2008, Backhus and Swank again attempted the partition by each
executing and filing in the Grimes County records another document entitled, ―Partition
Deed of Undivided Life Estates.‖ This time, the parties purported to partition only life
estates rather than fee simple title, but, as we will further discuss, the deeds were again
worded such that the partition purportedly bound the remaindermen. Appellees also
refused to ratify these deeds.

       Appellants again sued appellees, seeking a declaratory judgment that the partition
is authorized under the will and is valid, enforceable, and binding on all remaindermen.
Appellees filed a motion for summary judgment on the grounds that appellants’ request is
barred under the doctrines of res judicata and collateral estoppel based on disposition of
their earlier suit. Appellees do not oppose partition to the extent it would affect only the
life estates of Backhus and Swank but resist their attempt to make the partition binding
on the remaindermen.       Appellants filed their own motion for summary judgment
asserting they are entitled to the requested declarations.

       After hearing arguments on the cross motions, the trial court expressed its opinion
that the partition deeds were ―over-reaching.‖ However, before signing an order, the
court gave appellants the opportunity to amend their petition to request reformation of the
deeds so that they could at least effect a valid partition of their life estates. Appellants
did amend their petition to add such a request for reformation as an alternative form of
relief. On September 18, 2009, the trial court signed a judgment denying appellants’
request for declaratory relief but reforming all sections of the deeds.




                                              3
                                   II. STANDARD OF REVIEW

       We review declaratory judgments under the same standards as other judgments
and decrees. Lidawi v. Progressive Cnty. Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.
App.—Houston [14th Dist.] 2003, no pet.); see Tex. Civ. Prac. & Rem. Code Ann. §
37.010 (West 2008). We consider the procedure used to resolve the issue in the trial
court to determine the standard of review on appeal. Lidawi, 112 S.W.3d at 730. When
a trial court resolves a declaratory-judgment action via summary judgment, we review the
judgment under the same standards applied in reviewing a summary judgment. See id.
       A party moving for traditional summary judgment must establish there is no
genuine issue of material fact and he is entitled to judgment as a matter of law. See Tex.
R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16
(Tex. 2003). If the movant establishes his right to summary judgment, the burden shifts
to the non-movant to raise a genuine issue of material fact. Centeq Realty, Inc. v. Siegler,
899 S.W.2d 195, 197 (Tex. 1995). A plaintiff moving for summary judgment must
conclusively prove all essential elements of his claim. Cullins v. Foster, 171 S.W.3d 521,
530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986)).        A defendant moving for summary judgment must
conclusively negate at least one element of the plaintiff’s theory of recovery or plead and
conclusively establish each element of an affirmative defense. Siegler, 899 S.W.2d at
197.

       We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take as
true all evidence favorable to the nonmovant and indulge every reasonable inference and
resolve any doubts in his favor. Id. When, as in this case, both parties move for
summary judgment and the trial court grants one motion and denies the other, we must
review both parties’ summary-judgment evidence, determine all issues presented, and
render the judgment that the trial court should have rendered. FM Props. Operating Co.
v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).



                                             4
                                      III. ANALYSIS

       In their first, second, fourth, and fifth stated issues, appellants contend the trial
court erred by reforming respectively the Consideration, Habendum, Property, and
Reservations from Conveyance sections in each partition deed. In their third issue,
appellants contend the trial court erred by denying their request for a declaratory
judgment that partition binding on the remaindermen is authorized under the will.

       Because the deeds drafted by the life tenants, Backhus and Swank, purported to
bind the remaindermen, the court’s reformation thereof reflects its refusal to declare that
the deeds were valid, the partition is binding on the remaindermen, and partition binding
on the remaindermen is authorized under the will.            Therefore, appellants’ issues
essentially encompass a challenge to the trial court’s refusal to render the requested
declarations. Additionally, appellants apparently challenge some aspects of the trial
court’s reformation even to the extent that the reformed deeds partition only the life
estates.

A.     Request for Declaration on Binding Effect of Partition

       Appellants requested that the trial court render four declarations. We will first
address the court’s denial of appellants’ request for the following declaration:

       That the voluntary partition made by [Backhus] and [Swank] is valid and
       binding on all parties;
We will later address the specific language used in the partition deeds and the court’s
reformation thereof. However, relative to the above-cited request, appellants apparently
sought declarations that their partition was valid despite purporting to bind the
remaindermen and that generally a partition of life estates is binding on remaindermen.
       In their motion for summary judgment, appellees contended that all appellants’
requests for declaratory relief were barred by the doctrine of res judicata or the doctrine
of collateral estoppel. The doctrine of res judicata ―prevents the relitigation of a claim or
cause of action that has been finally adjudicated, as well as related matters that, with the
use of diligence, should have been litigated in the prior suit.‖ Barr v. Resolution Trust

                                             5
Corp., 837 S.W.2d 627, 628 (Tex. 1992). A party relying on this doctrine must prove
there is (1) a prior final judgment on the merits by a court of competent jurisdiction, (2)
identity of parties or those in privity with them, and (3) a second action based on the
same claims that were, or could have been, raised in the first action. Amstadt v. U.S.
Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
       The doctrine of collateral estoppel prevents relitigation of particular issues already
resolved in a prior suit. Barr, 837 S.W.2d at 628–29. A party relying on this doctrine
must prove (1) the facts sought to be litigated in the second action were fully and fairly
litigated in the first action, (2) those facts were essential to the judgment in the first
action, and (3) the parties were cast as adversaries in the first action. Sysco Food Servs.
v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

       We conclude that neither doctrine is applicable to appellants’ request for the
above-quoted declaration. The original partition deeds addressed in Backhus I were
different than the second drafts presently under review. See 2008 WL 660013, at *4.
The Backhus I court upheld the trial court’s refusal to declare the original deeds were
valid because the life tenants attempted to effect a partition that would grant each other
fee simple title rather than only a partition of life estates. See id. Because there was no
valid partition of life estates in the first place, the Backhus I court did not directly
adjudicate any claim or issue regarding validity of the language used in the Backhus I
deeds purporting to bind the remaindermen or whether a partition of life estates is
generally binding on remaindermen. See id. at *1–5.

       Nevertheless, we conclude the trial court did not err in the present case by refusing
to render the above-quoted declaration. As the Backhus I court recognized, common
owners of land may voluntarily effect a partition, which segregates their possession and
use, including life estates. Id. at *3 (citing Houston Oil Co. v. Kirkindall, 136 Tex. 103,
109, 145 S.W.2d 1074, 1077 (1941); Bunting v. McConnell, 545 S.W.2d 30, 31 (Tex.
Civ. App.—Houston [1st Dist.] 1976, no writ); Morris v.. Morris, 99 S.W. 872, 874 (Tex.
Civ. App.—Galveston 1907, no writ)). Further, a joint owner or claimant of real property

                                             6
or an interest in real property may compel a partition of the interest or the property
among the joint owners or claimants. Tex. Prop. Code Ann. § 23.001 (West 2000); see
Backhus I, 2008 WL 660013, at *3 n.1 (citing section 23.001). However, ―[a] partition of
real property involving an owner of a life estate or an estate for years and other owners of
equal or greater estate does not prejudice the rights of an owner of a reversion or
remainder interest.‖ Tex. Prop. Code Ann. § 23.003 (West 2000); see Backhus I, 2008
WL 660013, at *3 (citing section 23.003 although not directly addressing whether
partition of life estates is generally binding on remaindermen). A declaration that the
deeds presently under review were valid despite purporting to bind the remaindermen or
that a partition of life estates is generally binding on remaindermen would prejudice
appellees’ right to fee simple title in the whole after the death of the last life tenant.
       Appellants cite the principle that remainderman may not invalidate a valid
partition. Indeed, a remainder interest is not a possessory interest during the term of the
life estate. See State v. Beeson, 232 S.W.3d 265, 277 (Tex. App.—Eastland 2007, pet.
dism’d); Bradley v. Bradley, 540 S.W.2d 504, 515 (Tex. Civ. App.—Fort Worth 1976, no
writ). An owner of a nonpossessory interest can neither compel nor defeat partition and
is not a necessary party to a partition suit because his title is not affected by partition.
Dierschke v. Central Nat. Branch of First Nat. Bank at Lubbock, 876 S.W.2d 377, 380
(Tex. App.—Austin 1994, no writ) (citing Tex. Oil & Gas Corp. v. Ostrom, 638 S.W.2d
231, 233–34 (Tex. App.—Tyler 1982, writ ref’d n.r.e.); Douglas v. Butcher, 272 S.W.2d
553, 555 (Tex. Civ. App.—San Antonio 1954, writ ref’d n.r.e.)).

       This authority is distinguishable because the remaindermen are not attempting to
invalidate partition of the life estates; they do not oppose this partition. However, the gist
of appellants’ request for relief is not a declaration that the partition is binding on the
remaindermen during the term of the life estates. Indeed, appellants do not need such a
declaration to effect a valid partition of only the life estates because the remaindermen
cannot invalidate it. See id. Rather, appellants seek a declaration that the partition is
binding on the remaindermen when they do gain a possessory interest and fee simple title


                                                7
after the death of the last life tenant. For instance, in his affidavit supporting appellants’
motion for summary judgment, Swank averred:

       [Appellees] have made it known to us that they will not recognize the
       validity of our Partition Deeds and would seek to set aside or rescind our
       partition after our deaths. We therefore seek a final judicial determination
       that our Partition Deeds executed in 2008 are valid and binding on all of the
       remaindermen.

However, appellants cite no authority supporting their request for a declaration which
would operate contrary to the principle that the life tenants’ partition does not prejudice
the rights of the remaindermen.

B.     Request for Declaration that Partition Was Authorized Under the Will

       The trial court also denied appellants’ request for the following declarations:

       That [the will] especially recognized the right of partition to [Backhus] and
       [Swank], the life tenants;
       That by the express provisions of [the will], the partition is expressly
       binding on all parties;
In this instance, we do agree with appellees that appellants’ request was barred by the
doctrine of res judicata.

       With respect to the first element of the doctrine, Backhus I involved a final
judgment on the merits by a court of competent jurisdiction because the case was finally
resolved when the Texas Supreme denied appellants’ petition for review. The second
element is satisfied because the parties are the same in Backhus I and the present case.
See generally Backhus I, 2008 WL 660013.

       Relative to the third element, as we have discussed, the Backhus I court addressed
different deeds than those presently under review and did not directly reach the issue of
whether a valid partition of life estates would bind the remaindermen. See id. at *1–5.
However, in Backhus I, appellants also requested a declaratory judgment that the life
tenants were authorized under the will to effect a partition binding on all remaindermen,
see id. at *1, 3, 4,    which is identical to the above-quoted request for declaratory

                                              8
judgment in the present case.

       In Backhus I, appellants presented the same argument advanced in the present
case: the ―Twentieth‖ paragraph of the will authorized partition. See id. at *3, 4–5. This
paragraph provides in pertinent part,

              It is my further will, and I do direct, that should the said Sharon
       Swank [Backhus] or B.F. Swank, III, as the case may be, be survived by an
       heir of the body, then said surviving heir (or heirs) of said pre-deceased
       child, or the heirs of the body then living of such-predeceased child, shall
       take and hold the same interest as would have gone to the parent under and
       by virtue of any paragraph hereinbefore mentioned, said surviving child, or
       the heir, or heirs as the case may be, of the body of any pre-deceased child,
       thereupon the death of said last surviving child of the said Ida Mae
       Cunningham Swank as survives me to have and to take the fee simple title
       thereto said lands and premises, share and share alike and per stirpes,
       pending which event (that is the death of said last surviving child of said
       Ida Mae Cunningham Swank as survives me) they shall have the use and
       benefit of said lands and premises in proportion to their respective interest
       and with the right hereby especially granted of partition thereof said lands
       and premises of said respective interest, which partition I direct shall be
       binding upon any and all persons as may take hereunder this will or through
       any party to such partition.1
       The Backhus I court held that the portion of this provision granting the right to
effect a partition binding on all ―all persons as may take hereunder this will‖ applied only
if Backhus or Swank predeceased Harris, the testator.            See id. at *5.   Under such
circumstances, the surviving children of the predeceased Backhus or Swank would hold
the same interest to which the predeceased would have been entitled (i.e., his or her life
estate) and these children would have the right to effect a partition binding on any
beneficiaries under the will. See id. Therefore, this provision is inapplicable because
neither Backhus nor Swank predeceased Harris. Id. Accordingly, the Backhus I court
held that the will did not authorize any partition beyond the right to partition life estates
generally recognized under Texas law. See id.

       Appellants seem to acknowledge the Backhus I holding but nonetheless attempt to

       1
           Ida Mae Cunningham Swank was the mother of Backhus and Swank.

                                                9
circumvent it. However, appellants do not address the doctrine of res judicata, much less
advance any reason that it is inapplicable in the present case. Instead, appellants merely
reiterate their substantive arguments that partition is allegedly authorized under the will.

       In sum, although Backhus I and the present case involved different partition deeds,
appellants’ request for a declaratory judgment that partition binding on the remaindermen
is authorized under the will was fully adjudicated in Backhus I. Accordingly, the doctrine
of res judicata precludes appellants from relitigating the request in the present case.

C.     Request for Declaration On Validity of the Deeds and Reformation

       Each partition deed drafted by Backhus and Swank contained sections entitled
―Consideration,‖ ―Property,‖ ―Reservations from Conveyance,‖ and ―Exceptions to
Conveyance and Warranty‖ and two untitled sections that were essentially ―Habendum‖
provisions effecting partition of the property as well as strips or gores. The trial court
refused to render the following requested declaration: ―That the Partition Deeds . . .
executed . . . by [Backhus] and [Swank] . . . are valid and enforceable.‖ However, as
requested in appellants’ amended petition, the court reformed all sections of the deeds to
purportedly effect a partition of only the life estates.       The court also made some
modifications with respect to sections of the deeds governing oil, gas, and mineral
interests that are unrelated to whether the life tenants were attempting to partition only
the life estates. Appellants challenge the reformation except relative to the Exceptions to
Conveyance and Warranty section.2 We conclude the trial court did not err by refusing to
render the requested declaration because, as discussed below, the deeds drafted by
Backhus and Swank purported to bind the remaindermen to the partition, and we will
address the court’s reformation of certain sections.

       1.     Consideration and Habendum sections

       Appellants’ challenge to reformation of the Consideration and Habendum sections


       2
         Although appellants do not challenge reformation of the Exceptions to Conveyance and
Warranty section, we note that this section concerns restrictive covenants and easements.

                                             10
partly entails construing these provisions together.

       Consideration sections

       Each deed drafted by Backhus and Swank contained the following section reciting
―Consideration‖ for the partition:

       TEN AND NO/IOO DOLLARS ($10.00) and other good and valuable
       consideration, and Grantor and Grantee bing [sic] each owners of a ½
       undivided life estate interest in 2,622.5 acres of land in Grimes County,
       Texas, vested in them by the Last Will and Testament of E. W. Harris,
       Deceased, admitted to probate on November 12, 1962, under Cause No.
       3636, County Court of Grimes County, Texas, and the agreement between
       Grantor and Grantee to partition their ½ undivided life estates into specific
       life estates in specific parts of the 2,622.5 acres of land, more or less, by
       Deed so as to effect by separate instruments of conveyance, a partition of
       said 2,622.5 acres of land in a manner so that each of the Parties hereto,
       their heirs, personal representatives, successors and assigns, shall
       henceforth own and hold a life estate in the specific land which the parties
       have mutually agreed to partition to each other with each party hereto
       conveying their undivided interest in the part set aside to the other and
       which is described in each of two Partition Deeds.
(emphasis added).

       The trial court reformed the Consideration section in each deed to state,

       TEN AND NO/IOO DOLLARS ($10.00) and other good and valuable
       consideration; and the agreement between Grantor and Grantee, each being
       owners of an undivided life estate interest in 2,622.5 acres of land in
       Grimes County, Texas (said life estate being provided for by the Last Will
       and Testament of E. W. Harris, Deceased, admitted to probate on
       November 12, 1962, under Cause No. 3636, County Court of Grimes
       County, Texas), to partition their undivided life estate interests into separate
       life estates pertaining to specific parts of the 2,622.5 acres or [sic] land,
       more or less, as described herein, subject to the terms and conditions of the
       Last Will and Testament of E. W. Harris, Deceased, so that Grantor and
       Grantee shall during the term of the life estates, hold a life estate in specific
       land and not jointly with one another.
(emphasis added).

       In sum, the court rephrased the initial language describing the interests granted the
life tenants under the will. However, the material change was deletion of language
                                              11
reciting the partition was effected so that both the life tenant and his or her ―heirs,
personal representatives, successors and assigns‖ would hold a life estate in the life
tenant’s portion of the partitioned property and substitution of language reciting the
partition is effective between the life tenants ―during the term of the life estates.‖

       Habendum sections

       In the Habendum sections, the life tenants actually effect the partition: Backhus’s
deed conveys one portion of the property including strips or gores to Swank; likewise,
Swank’s deed conveys the other portion to Backhus. The Habendum section in each of
their drafted deeds provided,

              Grantor, for the Consideration and subject to the Reservations from
       Conveyance and the Exceptions to Conveyance and Warranty, grants, sells,
       and conveys to Grantee Grantor’s life estate in the above described
       property, together with all and singular the rights and appurtenances thereto
       in any way belonging, to have and to hold it to Grantee and Grantee’s
       heirs, personal representatives, successors, and assigns forever. Grantor
       binds Grantor and Grantor’s heirs, personal representatives, successors
       and assigns to warrant and forever defend all and singular the Property to
       Grantee and Grantee’s heirs, personal representatives, successors, and
       assigns against every person whomsoever lawfully claiming or to claim the
       same or any part thereof, except as to the Reservations from Conveyance
       and the Exceptions to Conveyance and Warranty.

              Grantor, for the same Consideration and subject to the Reservations
       from Conveyance and Exceptions to Conveyance and Warranty, grants,
       sells, and conveys to Grantee, without express or implied warranty,
       Grantor’s life estate in, the strips or gores, if any, between the Property and
       abutting properties and land lying in or under any public thoroughfare,
       opened or proposed, abutting or adjacent to the Property, together with all
       and singular the rights and appurtenances thereto in any way belonging, to
       have and to hold it to Grantee and Grantee’s heirs, personal
       representatives, successors and assigns forever. All warranties that might
       arise by common law as well as the warranties in section 5.023 of the Texas
       Property Code (or its successor) are excluded as to the property conveyed
       by this paragraph.

(emphasis added).


                                              12
      The trial court reformed the Habendum section in each deed to state,

      Grantor, for the Consideration and subject to the Reservations from
      Conveyance and the Exceptions to Conveyance and Warranty, grants, sells
      and conveys to Grantee, Grantor’s undivided interest in and to the life
      estate in the herein described property, together with all and singular the
      rights and appurtenances thereto in any way belonging, to have and to hold
      it to Grantee for and during Grantee’s natural life as provided for by the
      terms and conditions of the Last Will and Testament of E. W. Harris,
      Deceased. Grantor warrants and defends the Property to Grantee against
      every person whomsoever lawfully claiming or to claim the same or any
      part thereof, except as to the Reservations from Conveyance and the
      Exceptions to Conveyance and Warranty.

      Grantor, for the Consideration and subject to the Reservations from
      Conveyance and the Exceptions to Conveyance and Warranty, grants, sells
      and conveys to Grantee, without express or implied warranty, Grantor’s life
      estate rights, if any, in the strips and gores, if any, between the Property and
      abutting properties and land lying in or under any public thoroughfare,
      opened or proposed, abutting or adjacent to the Property, together with all
      and singular the rights and appurtenances thereto in any way belonging, to
      have and to hold it to Grantee for and during Grantee’s natural life as
      provided for by the terms and conditions of the Last Will and Testament of
      E. W. Harris, Deceased. All warranties that might arise by common law as
      well as the warranties in Section 5.023 of the Texas Property Code (or its
      successor) are excluded as to the property conveyed by this paragraph.

(emphasis added).

      In sum, the trial court essentially deleted language making conveyance of each
portion of the partitioned property and strips and gores binding on both the Grantee and
his or her ―heirs, personal representatives, successors, and assigns‖ and binding the
Grantor plus his or her ―heirs, personal representatives, successors and assigns‖ to
warrant and defend such conveyance.         The court substituted language making the
conveyance of each portion of the partitioned property and strips and gores binding on
only the Grantee during his or her ―natural life‖ and binding only the Grantor to warrant
and defend such conveyance.




                                            13
       As we construe appellants’ contentions, they included the ―heirs, personal
representatives, successors, and assigns‖ language in these sections to ensure the partition
is binding on the remaindermen when they take fee simple title after the death of the
second life tenant. Because we have concluded that the partition is not binding on the
remaindermen after the death of the second life tenant, the trial court properly deleted
such language and substituted language effecting a partition of only the life estates.
Moreover, the language in the Consideration section of the attempted deeds could be
construed as reciting that the remaindermen will hold only a life estate in the property—a
disposition contrary to the fee simple title to which they are entitled under the will.

       However, our analysis does not end here because appellants contend that the
reformed Consideration and Habendum sections are conflicting regarding the termination
date of the partition. After hearing arguments on the motions for summary judgment but
before rendering judgment, the trial court inquired about the parties’ positions on the
status of the partition once the first life tenant dies; i.e., the status between the death of
the first life tenant and the death of the last life tenant at which time fee simple vests in
the remaindermen. Appellants responded that the deceased life tenant’s heirs would have
the right to possession of his or her portion of the partitioned property while the surviving
life tenant would maintain possession of his or her portion of the partitioned property. In
contrast, appellees responded that the surviving life tenant would gain possession of the
entire property thus effectively ending the partition because fee simple title does not vest
in the remaindermen until the death of the last life tenant.

       Despite this inquiry, the trial court later remarked in further correspondence that
the issue regarding status of the partition after the first life tenant’s death was not before
the court although the parties might be required to address the issue in the future.
Appellants suggest that, despite this remark, the trial court implicitly rendered conflicting
rulings on that issue in the reformed Consideration and Habendum sections.

       Specifically, the reformed Habendum sections render the conveyance of each
partitioned portion of the property effective ―during Grantee’s natural life,‖ thus, in

                                              14
essence, rendering the partition effective only until the first life tenant’s death. However,
the reformed Consideration sections recite that the life tenants are effecting the partition
so that ―Grantor and Grantee shall during the term of the life estates, hold a life estate in
specific land and not jointly with one another.‖ Appellants note that ―life estates‖ in the
plural includes both tenants’ life estates; therefore, this language could be construed as
reciting the partition continues until the death of the second life tenant and thus implicitly
ruling that, upon the death of the first life tenant, his or her heirs gain a possessory
interest in that life tenant’s portion of the partitioned property until the death of the
second life tenant. We disagree.

        Construed in context, the trial court’s use of the language, ―during the term of the
life estates‖ in the plural entails the time during which there are multiple life estates; i.e.,
while both life tenants are both living.                Consequently, the trial court reformed the
Consideration sections to essentially recite that the partition ends on the death of the first
such life tenant, consistent with the Habendum paragraphs.                          However, even if the
reformed Consideration sections could be construed as reciting that the partition ends on
the death of the second life tenant, such ruling is necessarily moot; because there are only
two life tenants, the partition necessarily ends on the death of the first life tenant.3

        Accordingly, we uphold the trial court’s reformation of the Consideration and
Habendum sections of the deeds.

        2.       Property sections

        These sections contain descriptions of the property being partitioned. The first
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            The issue of whether the partition may continue beyond the death of the first life tenant would
not arise unless his or her heirs gained a possessory interest between the deaths of the life tenants. As the
court suggested, the overarching issue of whether heirs gain any possessory interest upon the first life
tenant’s death was not before the court. The parties did not seek declaratory relief, much less move for
summary judgment on that issue. We do not hold that the life tenants and/or their heirs are foreclosed
from later attempting to obtain a ruling—whether by agreement or judicial relief—that, upon the death of
the first life tenant, his or her heirs gain that life tenant’s previous interest in the property until the death
of the second life tenant and then attempting to effect a partition or perpetuate the present partition.
However, that issue is not before the court in this case. Backhus and Swank requested reformation to
effect at least a valid partition of their ―undivided life estates,‖ if the trial court would not declare that the
partition is binding on the remaindermen after the death of the last life tenant.

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paragraph of each Property section describes the portion of the property that Backhus and
Swank respectively convey to each other.          The trial court did not modify the first
paragraph in either deed.

       The second paragraph of the Property section in each deed drafted by Backhus and
Swank was a provision conveying certain ―executive rights‖ in the property as follows:

       Together with the executive rights; the power to execute any and all future
       leases for the development of said lands or any portion thereof, for oil, gas
       and other minerals, without the joinder of Grantor, or Grantor’s heirs,
       personal representatives, successors and assigns, however, no lease
       executed by Grantee, Grantee’s heirs, personal representatives, successor
       [sic] or assigns shall provide for a royalty of less than three sixteenths
       (3/16) of the value of oil, gas and other minerals covered by such lease(s).

       In sum, the parties partitioned both the surface of the property and the power to
execute oil, gas, and mineral leases subject to the proviso that each lease executed by a
life tenant and his or her ―heirs, personal representatives, successor [sic] or assigns‖ must
command a certain minimum royalty.
       The trial court ordered deletion of the second paragraph because ―it is not in
compliance with the terms and conditions‖ of the will and substituted the following
paragraph:

       Grantee shall have the complete power without the joinder of any person to
       lease and let the property, including the right to execute and deliver oil, gas,
       and mineral leases for any term of years ending either before or after
       Grantee’s death; and the right to possess and consume all bonuses, delay
       rentals, and other benefits payable under oil and gas leases covering the
       property.
       The will contained a provision stating that relative to the property, ―none of the
lands shall be sold, nor encumbered, not the interest of any person entitled thereto under
this will, sold, or encumbered, prior to the vesting of the fee simple title thereto . . . .‖
However, the will also prescribed several exceptions to the above-quoted provision
including the following:



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       It is my further will and desire, and I so direct, that notwithstanding the
       limitations as to sale and/or encumbrance of the lands and premises . . ., I
       further grant unto such beneficiary the right, without joinder of anyone, to
       enter into oil, gas and other mineral leases upon such terms and conditions
       as such beneficiary deem proper as involves such tract of land to which
       such beneficiary be entitled to possession, he or she, as the case may be,
       retaining any bonuses, rentals and/or royalties payable under such lease,
       provided, however, no such oil, gas and/or mineral lease shall be entered
       into as provides for a primary term in excess of five years.
       Appellants contend the life tenants were authorized under this provision to grant
each other the exclusive right to execute oil, gas, and mineral leases in their respective
portions of the partitioned property. The court obviously agreed because it left intact
overall the life tenant’s conveyance of such a right although it modified some aspects of
their agreement.

       The trial court’s reformation included several material revisions. In particular, the
court changed the language allowing the Grantee’s execution of leases ―without Joinder
of Grantor, or Grantor’s ―heirs, personal representatives, successors and assigns‖ to
―without the joinder of any person.‖ However, this change actually gives the life tenants
more protection than their drafted paragraphs and is consistent with their rights under the
will. In fact, appellants do not specifically challenge this modification.

       Instead, appellants focus on the trial court’s deletion of the proviso that ―no lease
executed by Grantee, Grantee’s heirs, personal representatives, successor [sic] or assigns
shall provide for a royalty of less than three sixteenths (3/16) of the value of oil, gas and
other minerals covered by such lease(s).‖          Appellants assert that this language was
intended to mutually protect ―both families.‖
       As appellants emphasize, the will authorized each life tenant ―to enter into oil, gas
and other mineral leases upon such terms and conditions as such beneficiary deem proper
as involves such tract of land to which such beneficiary be entitled to possession . . . .‖
Therefore, each life tenant is entitled to execute leases relative to his or her undivided life
estate. Accordingly, it follows that the life tenants may agree that each is entitled to
execute leases relative to his or her portion of the property when voluntary partitioned.

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Because the life tenants’ rights under the will include execution of leases ―upon such
terms and conditions as [he or she] deem[s] proper,‖ they may also agree that each life
tenant will require a minimum royalty in all leases executed relative to his or her portion
of the partitioned property. Via such agreement, the life tenants are merely granting each
other lesser rights in the partitioned property than they would otherwise possess under the
will. Accordingly the trial court erred by deleting the proviso in its entirety.
       However, the language making this proviso applicable to not only the Grantee but
also ―Grantee’s heirs, personal representatives, successor [sic] or assigns‖ could be
construed as binding the remaindermen to a requirement that leases they execute after
taking fee simple title must command a minimum royalty. Accordingly, the trial court
did not err by at least deleting the language binding ―Grantee’s heirs, personal
representatives, successor [sic] or assigns‖ to the proviso.
       Finally, the trial court added language to the Property section granting each life
tenant relative to his or her portion of the partitioned property, ―the right to possess and
consume all bonuses, delay rentals, and other benefits payable under oil and gas leases
covering the property.‖ Appellants do not expressly challenge addition of this phrase.
However, appellants implicitly challenge this addition by attacking the trial court’s
deletion of the Reservations from Conveyance section from the deeds. As shown below,
the life tenants apparently intended for the partition to include the right to execute leases
but not ―the right to possess and consume all bonuses, delay rentals, and other benefits
payable‖ under leases.     Under the will, each life tenant is entitled to ―retain[] any
bonuses, rentals and/or royalties payable under‖ oil, gas, or mineral leases that he or she
executes. Accordingly, we conclude the life tenants may exclude the right to retain
payments realized from oil, gas, and mineral leases from their partition because they are
again granting each other less rights than they otherwise would possess under the will.
       In sum, we will modify the trial court’s reformation of the second paragraph of the
Property section to reinsert the language regarding minimum royalties in executed leases
and delete the phrase pertaining to retention of payments from such leases.


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3.     Reservations from Conveyance section

       Each partition deed drafted by the life tenants contained the following section
entitled, ―Reservations from Conveyance‖:

       For Grantor and Grantor’s heirs, personal representatives, successors and
       assigns forever a reservation of all oil, gas and other minerals in and under
       and that may be produced from the Property. If the mineral estate is subject
       to existing production or an existing lease, this reservation includes the
       production, the lease, and all benefits from it.

(emphasis added). The trial court deleted this section in its entirety.
       Appellants contend that the trial court erred by deleting this section because the
parties intended to exclude oil, gas, and minerals from the partition so that both families
share in production from the entire property. Appellees concede the life tenants have a
life-estate interest in the oil, gas, and minerals. Accordingly, we conclude that the life
tenants are permitted to exclude such interest from their partition because they are merely
preserving a right they already possess under the will.            However, we will order
reformation of this section to delete the phrase, ―and Grantor’s heirs, personal
representatives, successors and assigns forever‖ so that the reservation concerns only the
life estates in the oil, gas, and mineral interests.
                                       IV. CONCLUSION
       We overrule appellants’ first, second, and third issues. We overrule, in part, and
sustain, in part, their fourth and fifth issues.
       We modify the trial court’s reformation of the second paragraph of the Property
section in both partition deeds to order that this section state as follows:

       Grantee shall have the complete power without the joinder of any person to
       lease and let the property, including the right to execute and deliver oil, gas,
       and mineral leases for any term of years ending either before or after
       Grantee’s death; however, no lease executed by Grantee shall provide for a
       royalty of less than three sixteenths (3/16) of the value of oil, gas and other
       minerals covered by such lease(s).


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       We modify the trial court’s reformation of the Reservations from Conveyance
section in both partition deeds to reinstate the section but order that it state as follows:
       For Grantor, a reservation of all oil, gas and other minerals in and under
       and that may be produced from the Property. If the mineral estate is subject
       to existing production or an existing lease, this reservation includes the
       production, the lease, and all benefits from it.

       We affirm the judgment as modified.




                                            /s/    Charles W. Seymore
                                                   Justice


Panel consists of Justices Seymore, Boyce, and Christopher.




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