                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00351-CV

     IN RE THE ESTATE OF GLORIA ANN REISTINO, DECEASED




                          From the 82nd District Court
                            Robertson County, Texas
                         Trial Court No. 78-10-11,729-CV


                                    OPINION


      Appellants contend in their sole issue that the trial court erroneously construed

the last will and testament of Gloria Ann Reistino’s father Tony C. Reistino to establish

a testamentary trust which included as remainder beneficiaries the children of Tony’s

nieces and nephews who predeceased Gloria. We will reverse and render.

      The parties’ dispute centers on the construction of the following provision in

Tony Reistino’s will:

             This trust shall continue until the death of my daughter, Gloria
      Ann Reistino, at which time this Trust shall end and terminate, and I
      direct that the balance of the fund of this Trust then on hand, if any, shall
      then vest in those of my nieces and nephews who shall be living on the
      date of the death of my said daughter, per capita, in fee simple, forever,
      the same to be distributed and delivered to them each by my said Trustee.
Gloria was Tony’s only child. He had eight brothers and sisters who all predeceased

Gloria. He had nineteen nieces and nephews, three of whom predeceased Gloria. One

of these, Louis Scarpinato, had no children. One of them, Joe Reistino, Jr., is survived

by two daughters, Maria and Malissa. And the third, Gathan Reistino,1 is survived by a

daughter, Misty Lynn Kelly. The parties dispute whether Maria, Malissa and Misty are

entitled to their parents’ shares of the trust.

        Appellants are: (1) John, Frank and Carl Reistino and Mary Luster, who are the

children of Tony’s brother Phil; and (2) Joe and Tony Baimonte, who are the sons of

Tony’s sister Mary. Appellees are: (1) Gathan Reistino and Frances Corpora, who are

the surviving children of Tony’s brother Joe; (2) Joyce Walden, Guardian of the Estates

of Maria L. and Malissa Reistino, who are the daughters of Tony’s nephew Joe; (3)

Geneva Herbst, Louise Mathis and Josephine Skains, who are the surviving children of

Tony’s brother Sam; (4) Misty Lynn Kelly, who is the daughter of Tony’s nephew

Gathan; (5) Robert Reistino, who is the sole child of Tony’s brother Frank; (6) Rose Mary

Mayes, who is the daughter of Tony’s sister Mary;2 (7) Marjorie Price, who is the

daughter of Tony’s brother Johnny; and (8) Frances Smith and Debbie Nigliazzo, who

are the daughters of Tony’s sister Josephine.

        In construing a will, our focus is on the testator’s intent. San Antonio Area Found.

v. Lang, 35 S.W.3d 636, 639 (Tex. 2000); In re Ray Ellison Grandchildren Trust, 261 S.W.3d


1     Misty’s father Gathan was the son of Tony’s brother Sam. Tony’s brother Joe also has a son
named Gathan who is one of the appellees.

2
       Rose Mary Mayes is on the opposite side of this dispute from her brothers Joe and Tony
Baimonte.


In re Estate of Reistino                                                                  Page 2
111, 117 (Tex. App.—San Antonio 2008, pet. denied). This intent must be ascertained

from the language found within the four corners of the will. Id. We focus not on what

the testator intended to write but on the meaning of the words actually used. Id. “If the

will is unambiguous, a court should not go beyond specific terms in search of the

[testator’s] intent.” Lang, 35 S.W.3d at 639; accord Ellison Trust, 261 S.W.3d at 117.

        Appellees cite Lang for the proposition that “a ‘court may always receive and

consider evidence concerning the situation of the testator, the circumstances existing

when the will was executed, and other material facts that will enable the court to place

itself in the testator’s position at the time.’” 35 S.W.3d at 639 (quoting Stewart v. Selder,

473 S.W.2d 3, 7 (Tex. 1971)). However, Appellees neglect to mention the very next

sentence in Lang where the Court added, “But this broad approach to the admissibility

of extrinsic evidence applies only when a term is open to more than one construction.”

Id. Thus, extrinsic evidence is admissible only when a term used in a will is ambiguous.

See In re Estate of Tyner, 292 S.W.3d 179, 182 (Tex. App.—Tyler 2009, no pet.); Ellison

Trust, 261 S.W.3d at 117-18; In re Estate of Bean, 206 S.W.3d 749, 762 (Tex. App.—

Texarkana 2006, pet. denied).

        Here, the parties dispute whether the term “my nieces and nephews” includes

Tony’s grandnieces. Citing Martin v. Palmer, 1 S.W.3d 875 (Tex. App.—Houston [1st

Dist.] 1999, pet. denied), Appellees contend, “Texas courts hold that the phrase ‘my

nieces and nephews’ does not have such a clear, definite, and technical meaning that it

is susceptible of only one legal interpretation in every will construction case.”

However, merely because the phrase “nieces and nephews” may be ambiguous in some


In re Estate of Reistino                                                                 Page 3
cases does not inexorably lead to the conclusion that the phrase is ambiguous in every

case.

        Martin is one of only two Texas cases our research has disclosed addressing the

relational term “nieces and nephews” in construing a testator’s intent. In Martin, the

testator bequeathed his entire estate to “my nieces and nephews.” Martin, 1 S.W.3d at

877. The parties disputed whether the testator’s nieces and nephews included those

related to him by blood as well as those who were the children of his wife’s brothers

and sisters. Id. at 877-78. The First Court held that the term was ambiguous under the

circumstances and concluded in this summary-judgment case that genuine issues of

material fact remained on the question of whether the term included the testator’s

nieces and nephews by blood as well as those by marriage. Id. at 880-82.

                We find no Texas authority supporting the appellees’ position that
        the phrase “my nieces and nephews” has been given such a clear, definite,
        and technical meaning that in every case and, regardless of circumstances, it
        must conclusively be construed as meaning only the nieces and nephews
        of the testator and not those of the testator’s spouse. Applying the rules of
        will construction established by the courts of this state, we conclude that
        the phrase “my nieces and nephews” does not have such a clear, definite,
        and technical meaning that it is susceptible of only one legal interpretation
        in every will construction case.

Id. at 880-81.

        The other Texas case our research has disclosed on this issue is Hocker v. Stevens,

18 S.W.2d 842 (Tex. Civ. App.—El Paso 1929, writ ref’d). In Hocker, the court construed

a devise to “my brothers and sisters and half brothers and sisters then living at the time

of my death, and unto my nephews and nieces then living at the time of my death, to

each one of them share and share alike absolutely in fee simple.” Id. at 842. The dispute


In re Estate of Reistino                                                                Page 4
was whether this included nephews and nieces of the whole blood as well as those of

the half blood, particularly in view of the manner in which the testator specified the

inclusion of “half brothers and sisters.” Id. The court noted that this was a class gift to

the nephews and nieces and held that such a devise “embraces all of that class who are

living at the time of the death of the testator, and without regard as to whether they are

of the whole blood or half blood.” Id. at 843. As in Martin, however, the asserted

ambiguity in Hocker concerned the children of siblings or half-siblings and not their

grandchildren.

        The term “nieces and nephews” is not ambiguous on its face. See MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY 779, 783-84 (10th ed. 1993) (defining nephew as “a

son of one’s brother or sister or of one’s brother-in-law or sister-in-law” and similarly

defining niece as “a daughter of one’s brother, sister, brother-in-law, or sister-in-law”);

accord BLACK’S LAW DICTIONARY 1138, 1143 (9th ed. 2009) (defining nephew as “[t]he son

of a person’s brother or sister; sometimes understood to include the son of a person’s

brother-in-law or sister-in-law” and similarly defining niece).3

        This case does not involve a dispute between Tony’s nieces and nephews and the

nieces and nephews of his wife who predeceased him. Cf. Martin, 1 S.W.3d at 877. Nor

does this case involve a dispute between Tony’s nieces and nephews and any nieces

and nephews of a previous marriage or other relationship. Cf. Hocker, 18 S.W.2d at 842.



3
        The editors of Black’s Law Dictionary do add that these terms are “extended in some wills to
include [grandnephews and grandnieces].” BLACK’S LAW DICTIONARY 1138, 1143 (9th ed. 2009).
However, our research has not disclosed a single Texas decision in which these terms were extended to
include grandnephews and grandnieces.


In re Estate of Reistino                                                                      Page 5
        Rather, we hold that the rule in this case should be the same as applies when

determining whether a devise to “children” includes grandchildren. “The law in Texas

is well-settled.      When the word ‘children’ is used in a will, absent a clear and

unequivocal intent to encompass more remote descendants, the word is restricted to

those descendants of the first degree.” Busby v. Gray, 616 S.W.2d 284, 287 (Tex. Civ.

App.—San Antonio 1981, writ ref’d n.r.e.); see Briggs v. Peebles, 144 Tex. 47, 188 S.W.2d

147, 150 (1945); Bartlett v. Terrell, 292 S.W. 273, 277-78 (Tex. Civ. App.—San Antonio

1927, writ ref’d).

        Applying this rule to “nieces and nephews” is consistent with how other states

have addressed this issue.

        The word, “children” has been held to include grandchildren and the
        words, “nephews” and “nieces” have been held to refer to grand-nephews
        and grand-nieces, but I think it is safe to say that such construction is
        never adopted in the absence of clear evidence of intention obtained from
        the language of the will.

Bank of N.Y. v. Shillito, 14 N.Y.S.2d 458, 461 (N.Y. Sup. Ct. 1939).

        “‘Niece’ and ‘nephew’ in their primary and ordinary sense mean the
        immediate descendants of the brothers and sisters of the person named,
        and do not include grandnieces and grandnephews, and such
        construction will be given to them when used in a will unless it clearly
        appears from the context that a different meaning was intended by
        testator.”

Frederick v. Hoffman, 7 Ohio App. 2d 27, 218 N.E.2d 478, 479-80 (Ohio Ct. App. 1966)

(quoting 57 AM. JUR. Wills § 1390 (1948)).

        Tony’s will does not express “a clear and unequivocal intent” to include

grandnieces and grandnephews as remainder beneficiaries. See Briggs, 188 S.W.2d at



In re Estate of Reistino                                                            Page 6
150; Busby, 616 S.W.2d at 287; Bartlett, 292 S.W. at 277-78. Therefore, the trial court erred

when it construed the will to include Maria, Marissa and Misty as remainder

beneficiaries. Appellants’ sole issue is sustained.

        We reverse the judgment and render judgment that the sixteen surviving

children of Tony’s brothers and sisters are the remainder beneficiaries of the

testamentary trust created by his will.4 Each of these remainder beneficiaries is entitled

to a distribution of 1/16 of the funds held by the trust.



                                                             FELIPE REYNA
                                                             Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring)
Reversed and rendered
Opinion delivered and filed December 1, 2010
[CV06]




4
        The sixteen surviving children are: Gathan Reistino, Frances Corpora, Geneva Herbst, Louise
Mathis, Josephine Skains, Robert Reistino, Johnny Reistino, Mary Louise Luster, Frank Reistino, Carl
Reistino, Joe Baimonte, Tony Baimonte, Rose Mary Mayes, Marjorie Price, Frances Smith, and Debbie
Nigliazzo.


In re Estate of Reistino                                                                     Page 7
