                                  NO. 12-08-00008-CV

                          IN THE COURT OF APPEALS

           TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS
                                                        '    APPEAL FROM THE
IN THE ESTATE OF
ETHEL E. PRATER,                                        '    COUNTY COURT OF
DECEASED
                                                        '
                                                 CHEROKEE COUNTY, TEXAS
                                       MEMORANDUM OPINION
        Kay Keller, independent executrix of the estate of Ethel E. Prater, deceased,
appeals from the trial court’s order granting Robert K. Jones’s motion to interpret certain
provisions of Prater’s will. On appeal, Keller presents ten issues. We affirm in part, and
reverse in part.
                                           BACKGROUND

        Ethel E. Prater died on November 25, 2006. In her will, she named Keller as the
independent executrix of her estate. In section II of the will, Prater made specific
bequests to twelve individuals, but stated that “if there should not be cash, savings and/or
certificates of deposit to satisfy the cash amounts, each [individual] would then receive
their pro rata share of the available amount.” In section III of the will, Prater specifically
bequeathed to Jones

        all of the common stock that I own in the business known as “Specialty Maid, Inc.”
        which owns real estate (including other assets), inventory, cash, checking accounts,
        certificate of deposits, equipment, buildings, and the loan owed by Specialty Maid, Inc.,
        to me.


Prater’s will was admitted to probate, and letters testamentary were issued to Keller.
Keller filed an inventory, appraisement, and list of claims (“inventory”), listing as
Prater’s separate property an undivided one-half interest in “Specially Maid, Inc.,” valued
at $2,500.00. As a claim of the estate, Keller listed a promissory note from “Specially
Maid, Inc.” to Prater valued at $79,598.88. 1
         Jones filed a motion alleging that there was a genuine controversy as to the
interpretation and legal effect of certain provisions of Prater’s will. He requested a
declaratory judgment pursuant to Chapter 37 of the Texas Civil Practices and Remedies
Code. He also requested an injunction against Keller, asserting that his interest in the
estate was threatened with irreparable harm by Keller’s “apparent” plan to fund the
specific bequests in section II of Prater’s will after the assets of the business are sold, the
estate receives its portion from the sale, and the loan to Specialty Maid, Inc. from Prater
is repaid to the estate. He stated further that he had no adequate remedy at law.
         At a hearing on his motion, Jones asserted that Prater bequeathed to him two
separate items: (1) all of the common stock in Specialty Maid, Inc., and (2) the loan owed
by Specialty Maid, Inc. to Prater.2 Jones asserted that Prater, not Specialty Maid, Inc.,
owned the loan, and thus, the only possible construction of the bequest is that Prater
bequeathed to him two separate and distinct items. Keller disagreed, noting that the loan
was not another gift, but, instead, part of the description of Specialty Maid, Inc. Keller
admitted that the loan was not owned by Specialty Maid, Inc., but was an asset of the
estate. Her counsel stipulated that, after the loan was repaid, Keller intended to distribute
the monies according to the terms of Prater’s will, which included paying the obligations
of the estate and the specific bequests.3
         The trial court granted Jones’s motion, and found that Prater bequeathed to Jones
two separate assets: (1) all of the common stock in Specialty Maid, Inc., and (2) the loan
owed by Specialty Maid, Inc. to Prater.                   Further, the trial court ordered Keller to
immediately disburse the proceeds of the loan to Jones once the loan was repaid to the
estate. Finally, the trial court enjoined Keller from using the proceeds of the loan in any



         1
            In the record, the corporate entity in which Prater owned an undivided one-half interest is
variously referred to as “Specialty Maid, Inc.,” “Specially Maid, Inc.,” and “Special Made, Inc.” However,
Keller notes in her brief that despite the name variations, there is no suggestion that the references were not
to the same corporate entity. We will refer to the corporate entity as “Specialty Maid, Inc.”
         2
           The loan from Prater to Specialty Maid, Inc. is evidenced by the promissory note described in
the inventory. However, the term “loan” is used in section III of Prater’s will, and the terms “loan” and
“proceeds” of the “loan” were used in the trial court. For consistency, we will use the same references.
         3
           In substance, Keller argues that the loan is part of the residuary estate. As such, the loan
proceeds can be used to satisfy the specific bequests in section II.
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manner inconsistent with the order. The trial court filed findings of fact and conclusions
of law, including the following conclusions of law:

       3.      Using the specific terms used by the testatrix in the Last Will and Testament of
               Ethel E. Prater, deceased, the decedent made two specific bequests in section III
               of her will specifically bequeathing: (1) all of the common stock owned by the
               deceased in the business known as “Special Made, Inc.[,]” and (2) bequeathing
               the separate loan owned by the business know[n] as “Special Made, Inc.[,]” both
               to Robert Jones.

               ....

       7.      Robert Jones is currently in imminent peril of irreparable injury due to the
               Independent Executrix, Kay Keller’s proposed interruption of section III of the
               Last Will and Testament of Ethel E. Prater, deceased.

       8.      To prevent the imminent peril of irreparable injury resulting from the
               Independent Executrix, Kay Keller’s proposed interruption of the will, it is
               necessary for Ms. Keller to be enjoined from using the proceeds of the loan
               referenced in section III of the will once repaid by “Special Made, Inc.[,]” in any
               manner other than immediately disbursing said funds to Robert Jones.

This appeal followed.

                                     WILL CONSTRUCTION
       In her first, second, and third issues, Keller argues that the trial court erred as a
matter of law in determining that Prater bequeathed to Jones the loan owed by Specialty
Maid, Inc. to Prater. She also contends that the trial court erred as a matter of law in
ordering her to disburse the proceeds of the loan to Jones because the loan was not
bequeathed to Jones.
Applicable Law
       In construing a will, the court’s focus is on the testatrix’s intent. San Antonio
Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). This intent must be ascertained
from the language found within the four corners of the will. Id. Determining a testatrix’s
intent from the four corners of a will requires a careful examination of the words used.
Id. If the will is unambiguous, a court should not go beyond the will’s specific terms in
search of the testatrix’s intent. Id. In other words, when there is no dispute as to what
the written words in a will mean, extrinsic evidence cannot be received (1) to show that
the testatrix intended something outside of or independent of such written words; (2) to
add words to those in the will; (3) to contradict the language in the will; or (4) to take
words away from those in the will. See In re Estate of Schiwetz, 102 S.W.3d 355, 363-



                                                   3
64 (Tex. App.—Corpus Christi 2003, pet. denied) (citing Huffman v. Huffman, 161 Tex.
267, 270-73, 339 S.W.2d 885, 888-89 (1960)).
       Whether a will is ambiguous is a question of law for the court.           Steger v.
Muenster Drilling Co., Inc., 134 S.W.3d 359, 373 (Tex. App.—Fort Worth 2003, pet.
denied).   A will is ambiguous only when the application of established rules of
construction leaves its terms susceptible to more than one reasonable meaning. Id. If the
court can give a certain or definite legal meaning or interpretation to the words used, the
will is unambiguous. Id. Absent ambiguity, the construction of a will is a matter of law.
Parker v. Parker, 131 S.W.3d 524, 530 (Tex. App.—Fort Worth 2004, pet. denied). We
review such questions of law de novo. Id. When performing a de novo review, we
exercise our own judgment and redetermine each legal issue. Quick v. City of Austin,
7 S.W.3d 109, 116 (Tex. 1998). We will uphold conclusions of law on appeal if the
judgment can be sustained on any legal theory the evidence supports. Canal Ins. Co. v.
Hopkins, 238 S.W.3d 549, 561 (Tex. App.—Tyler 2007, pet. denied). When reviewing a
trial court’s judgment, the reviewing court should render the judgment that the trial court
should have rendered, except when remand is necessary. TEX. R. APP. P. 43.3.
       Wills are accorded a liberal construction. Holliday v. Smith, 458 S.W.2d 106,
110 (Tex. Civ. App.—Corpus Christi 1970, writ ref’d n.r.e.). Since the form used should
be subordinated to the substance, considerable latitude is permitted in respect to the
informality with which the testatrix may have expressed her intention, and allowance is
made for awkwardness in the use of words and in the structure of sentences. Id. We
must discover the general scheme of the will, and carry out the dominant or general intent
of the testatrix, as far as possible, unless such scheme contravenes an established rule of
law or public policy. Long v. Long, 252 S.W.2d 235, 247 (Tex. Civ. App.—Texarkana
1952, writ ref’d n.r.e.). Further, the general intent appearing from the provisions of the
will as a whole must prevail, and any particular clause or provision which, taken alone,
would indicate a contrary intention, will yield thereto. Id.
       Courts may not redraft a will, vary, or add provisions under the guise of
construction of the language of the will in order to reflect some presumed intent of a
testatrix. Shriner’s Hosp. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). Moreover, there is
no hard and fast rule that requires that language in a will be dissected and measured with
mathematical precision. Neely v. Brogden, 239 S.W. 192, 194 (Tex. Comm’n App.
1922). It is always permissible, and is in fact proper, to look beyond mere grammatical
                                            4
form to what may be termed the internal evidence of the writer’s intention. Welch v.
Straach, 531 S.W.2d 319, 322 (Tex. 1975). The phraseology, spelling, and punctuation
are of little importance in the interpretation of what is said in a will. Maxey v. Queen,
206 S.W.2d 114, 117 (Tex. Civ. App.—Fort Worth 1947, writ ref’d n.r.e.).
Analysis
       The parties to this appeal urge that Prater’s will is unambiguous, and we agree.
Therefore, we review the will de novo.
       In section III of her will, Prater bequeathed to Jones

       all of the common stock that I own in the business known as “Specialty Maid, Inc.”
       which owns real estate (including other assets), inventory, cash, checking accounts,
       certificate of deposits, equipment, buildings, and the loan owed by Specialty Maid, Inc.,
       to me.

Keller argues that, according to basic grammar, the last item in a series follows a
conjunction. She points out that, in this specific bequest to Jones, the conjunction “and”
is placed before the description of the loan (“and the loan owed by Specialty Maid, Inc.,
to me.”). She contends further that the nonessential clause beginning with the word
“which” is a series of items, both assets and liabilities, that describes what Specialty
Maid, Inc. owns (“which owns real estate (including other assets), inventory, . . . ,
buildings, and the loan owed by Specialty Maid, Inc., to me.”). Thus, she argues, the
loan is the last item in the series rather than a specific bequest to Jones. Consequently,
she concludes, Prater’s only bequest to Jones was the common stock. Jones counters that
it is undisputed that Specialty Maid, Inc. did not own the loan, that Prater knew the
business did not own the loan, and therefore the omission of “and” before “buildings”
was simply either a scrivener’s error or “inartful grammar.”
       As stated previously, in construing Prater’s will, our focus is on her intent which
we ascertain from the language found within the four corners of the will. See San
Antonio Area Found., 35 S.W.3d at 639. The clause beginning with the word “which”
in section III of Prater’s will describes what Specialty Maid, Inc. owns, including real
estate and other assets. Before the word “buildings,” however, there is a comma. That
comma is followed by a conjunction, “and,” which is then followed by a description of
the loan to Specialty Maid, Inc. from Prater. Proper grammar dictates that a comma
should be placed between all items in a series. See Terri LeClercq, EXPERT LEGAL



                                                  5
WRITING 152 (1995). Thus, if we consider only the form of this section, it seems that the
loan is the last item in a list of what Specialty Maid, Inc. owns.
         But Specialty Maid, Inc. did not own the loan. Instead, the loan is a chose in
action that was Prater’s personal property.4 See TEX. PROB. CODE ANN. § 3(z) (Vernon
Supp. 2009); BLACK’S LAW DICTIONARY 275 (9th ed. 2009). Because the loan was
Prater’s personal property, she had the right to bequeath all the right, title, and interest in
the loan that she had at the time of her death. See TEX. PROB. CODE ANN. § 58 (Vernon
2003). The loan, therefore, is different in substance from the other items in the series,
i.e., items owned by Specialty Maid, Inc. According a liberal construction to Prater’s
will, the grammatical form of section III of her will yields to the general intent. See
Long, 252 S.W.2d at 247; Welch, 531 S.W.2d at 322. Because the loan was not owned
by the business and was Prater’s personal property to bequeath, the items in the series
beginning with the word “which” (“which owns real estate (including other assets),
inventory, . . . , buildings, and the loan owed by Specialty Maid, Inc., to me.”) does not
include the loan owed to Prater. Therefore, the trial court did not err in finding that
Prater bequeathed to Jones all of the common stock she owned in Specialty Maid, Inc., as
well as the loan owed to her by Specialty Maid, Inc. Moreover, the trial court did not err
in ordering Keller to disburse the proceeds of the loan to Jones once the loan was repaid.
Accordingly, we overrule Keller’s first, second, and third issues.5

                                              INJUNCTION
         In her fourth issue, Keller argues that the trial court erred in granting an injunction
against her because Jones had no entitlement, or any right, to the loan. In her fifth, sixth,
and eighth issues, she contends that the trial court erred as a matter of law in granting the
injunction because there was no evidence that Jones would suffer irreparable harm, had
no adequate remedy at law, and was in imminent peril of irreparable injury.




         4
           Keller has acknowledged Prater’s ownership of the loan by listing the promissory note in the
inventory as a claim of the estate against Specialty Maid, Inc.
         5
            Although the trial court’s conclusion of law stated that Prater bequeathed to Jones “the separate
loan owned by the business” known as “Specialty Maid, Inc.,” the trial court noted that it was using the
specific terms used by Prater in her will. However, in her will, Prater stated that the loan was owed by the
business, not owned by the business. Thus, we conclude that the term “owned” in conclusion of law
number 3 is a typographical error.
                                                     6
Applicable Law

         Whether to grant a temporary or permanent injunction is ordinarily within the
sound discretion of the trial court and, on appeal, review of the trial court’s action is
limited to the question of whether the action constituted a clear abuse of discretion.
Webb v. Glenbrook Owners Ass’n., Inc., No. 05-07-01122-CV, 2009 WL 3135179, at *6
(Tex. App.—Dallas Oct. 1, 2009, no pet. h.). An applicant for injunctive relief must
demonstrate (1) the existence of a wrongful act; (2) the existence of imminent harm; (3)
the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Id.
An injunction is not proper when the claimed injury is merely speculative; fear and
apprehension of injury are not sufficient to support a temporary injunction. Fox v.
Tropical Warehouses, Inc., 121 S.W.3d 853, 861 (Tex. App.—Fort Worth 2003, no
pet.).
Analysis

         We have held that the trial court did not err in concluding that Prater’s special
bequest to Jones included the loan owed by Specialty Maid, Inc. to Prater. Nevertheless,
we must determine whether the trial court abused its discretion in concluding that Jones
demonstrated he was entitled to injunctive relief. See Webb, 2009 WL 3135179, at *6.
At the hearing, Keller argued that the loan was not bequeathed to Jones. As such,
Keller’s counsel stipulated that, after the loan was repaid, Keller intended to use the funds
to pay the obligations and specific bequests according to Prater’s will. However, neither
Keller or Keller’s counsel stated that Keller would pay the obligations and specific
bequests with the loan proceeds even if the trial court determined that the loan was
bequeathed to Jones. Fear and apprehension that Keller will continue with her plan
despite a court order to the contrary is not sufficient to support an injunction. See Fox,
121 S.W.3d at 861. Because there is no evidence of the existence of imminent harm, the
trial court abused its discretion in issuing the injunction against Keller. Accordingly, we
sustain Keller’s eighth issue.

                                       CONCLUSION
         Based on our review of the record, we overrule Keller’s first, second, and third
issues, and affirm that part of the trial court’s order granting Jones’s “Motion to Interpret
Provisions of Will of Ethel E. Prater.” However, we sustain Keller’s eighth issue, reverse

                                             7
that part of the trial court’s order enjoining Keller, and dissolve the injunction. Because
Keller’s eighth issue is dispositive of her remaining issues, we do not address them. See
TEX. R. APP. P. 47.1.
                                                                SAM GRIFFITH
                                                                   Justice
Opinion delivered December 31, 2009.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (PUBLISH)




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