                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00060-CV


ESTATE OF MARJORIE B.
ABSHIRE, DECEASED




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           FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                  I. Introduction

      In this action to determine the validity of a holographic will and codicil,

Appellants Ernestine Nichols and Travis Avenue Baptist Church appeal the trial

court‘s summary judgment in favor of Appellees Patricia Kallenberger Singleton;

Kent Kallenberger; Kreg Kallenberger; Martha Luvene Bryant Dickinson; Emma

Lu Bryant Magee; Margaret Diane Bryant Gordon; Kinney Bryant; and Jim

      1
      See Tex. R. App. P. 47.4.
Dabney, as Attorney in Fact for Wanza Josephine Thomas Dabney. Appellants

contend in five issues that the trial court incorrectly interpreted the will and codicil

or that the will and codicil are ambiguous. Appellants also challenge the trial

court‘s award of attorney‘s fees to Appellees. We reverse and remand.

                                   II. Background

      Marjorie B. Abshire passed away on August 30, 2007.                Abshire was

Nichols‘s maternal first cousin (their mothers were sisters) and a member of

Travis Avenue Baptist Church. Appellees are Abshire‘s paternal heirs at law.

      On January 9, 2001, Abshire drafted, in her own handwriting, a

holographic will. On January 17, 2001, she added a holographic codicil on the

same page. In their entirety, the will and codicil state:

                                                              6111 Haley Lane
                                                         Fort Worth, TX 76132
                                                               January 9, 2001

      To:    Ernestine C. Nichols
             3820 Westerly
             Fort Worth, Texas 76116

                      ―Holographic Will of Marjorie B. Abshire‖

           I would like to make you administrator of my estate to serve as
      Independent Executor without bond or other form of security.

            As of this date, January 9, 2001, there are no claims for any
      debt against me – house, car, and other purchases are free from
      debt. The only things I owe are current utilities and telephone
      accounts that are drafted from my bank account. * 1/17/01

            I would like to make Page Nichols Nickell as alternative
      Executor with same powers and rights as Ernestine C. Nichols in
      case she does not survive me or is incapacitated to act in my behalf.


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             This will is revoking all others which have been destroyed.

                                                         Marjorie B. Abshire

      *Just as a rough guide as to distribution of my estate, I would like
      Ernestine C. Nichols to have half of my funds, one-fourth to Margaret
      C. Dennis, and one-fourth to Travis Avenue Baptist Church which
      will not include annuities that I have designated to other charities.

                                                         Marjorie B. Abshire

      On October 22, 2007, the trial court entered an order admitting the will and

codicil to probate and appointing Page Nickell, named as successor independent

executor in the will, as independent executor. The document admitted to probate

as the will and codicil were found among Abshire‘s financial papers in an

envelope labeled, ―Holographic Will of Marjorie Abshire.‖ Also in the envelope

were three handwritten notes about making a will, three lists of assets, and

newspaper clippings relating to preparation of wills.

      In March 2009, Nickell filed an action for declaratory judgment to construe

the will and identified twenty-eight interested parties. Seven of the Appellees

filed a general denial and have contended that although the will is valid, the

codicil is invalid because it contains precatory language and does not purport to

distribute any portion of Abshire‘s estate.

      Appellants and Appellees filed cross-motions for summary judgment, and

the trial court denied Appellants‘ motion and granted Appellees‘ motion. In its

order granting Appellees‘ motion for summary judgment, the trial court made four

findings:


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          1.    The purported codicil dated January 17, 2001, is
      unambiguous as a matter of law.

             2. The following sentence in the purported codicil is precatory:

             Just as a rough guide as to distribution of my estate, I would
             like Ernestine C. Nichols to have half of my funds, one-fourth
             to Margaret C. Dennis, and one-fourth to Travis Avenue
             Baptist Church which will not include annuities that I have
             designated to other charities.

            3. The word ―funds‖ in the above-quoted sentence does not
      include real property.

             4. The purported codicil did not make an effective disposition
      of property. Therefore, the decedent died intestate with regard to
      the disposition of her property.

The trial court also set aside the portion of its October 22, 2007 order admitting

the codicil to probate. In its final judgment, the trial court reiterated its summary

judgment findings and awarded attorney‘s fees totaling $238,421.49 to

Appellants, Nickell, and Appellees‘ attorney, with Appellees‘ attorney receiving

$151,498.74 of that amount. This appeal followed.

                             III. Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every




                                         4
reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties‘

summary judgment evidence and determine all questions presented.             Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).         The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

                              IV. Will Construction

      Appellants contend in their first three issues that the trial court erred by

granting summary judgment for Appellees. Specifically, they argue that the trial

court erred by determining that the codicil failed because it contained precatory

language and did not dispose of Abshire‘s property and by concluding that the

term ―funds‖ in the codicil did not include real property. Alternatively, Appellees

contend in their fourth issue that the will and codicil are ambiguous.

A. Applicable Law

      In construing a will, the court‘s focus is on the testator‘s intent.    San

Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000); In re Estate of

Florence, 307 S.W.3d 887, 893 (Tex. App.—Fort Worth 2010, no pet.). One of

the strongest presumptions guiding the interpretation of wills is the disfavor of




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any interpretation that would render the testator intestate as to any part of her

estate. McGill v. Johnson, 799 S.W.2d 673, 676 (Tex. 1990).

             Under Texas law, several presumptions guide the
      interpretation of wills. A construction which would render the
      decedent intestate as to any part of his estate is not favored. If the
      language used is not free from doubt or ambiguity, then canons of
      construction may be resorted to, and that interpretation should be
      adopted which will uphold and not destroy the will.

Id. (citation omitted). ―The fact that [a] testatrix left a will implies that she did not

intend to die intestate.‖ Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096,

1097 (1931); see In re Estate of Rogers, No. 04-06-00555-CV, 2007 WL

1258763, at *2 (Tex. App.—San Antonio May 2, 2007, pet. denied) (mem. op.).

For this reason, ―[a] holographic will should be liberally construed to effect the

testator‘s intent.‖ Trim v. Daniels, 862 S.W.2d 8, 10 (Tex. App.—Houston [1st

Dist.] 1992, writ denied) (citing Lane v. Sherrill, 614 S.W.2d 619, 622 (Tex.

1981); Gilkey v. Chambers, 146 Tex. 355, 207 S.W.2d 70, 73 (1947)).

      The testator‘s intent must be ascertained by viewing the will in its entirety.

Florence, 307 S.W.3d at 893 (citing Steger v. Muenster Drilling Co., Inc., 134

S.W.3d 359, 372 (Tex. App.—Fort Worth 2003, pet. denied)).                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.         ―[I]f [the testator‘s intent] can be

ascertained from the language of the instrument, then any particular paragraph of

the will which, considered alone, would indicate a contrary intent, must yield to

the intention manifested by the whole instrument.‖ Welch v. Straach, 531 S.W.2d



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319, 321 (Tex. 1975) (quoting McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412,

413 (Tex. 1887)).

      Whether a will is ambiguous is a question of law for the court. Steger, 134

S.W.3d at 373.      If the court can give a certain or definite legal meaning or

interpretation to the words used, the will is unambiguous, and the court should

construe it as a matter of law. Id. A term is not ambiguous merely because of a

simple lack of clarity or because the parties proffer different interpretations of a

term. Id. Rather, a will is ambiguous only when the application of established

rules of construction leave its terms susceptible to more than one reasonable

meaning. Id. If a will is ambiguous, extrinsic evidence should be considered to

ascertain the testator‘s intent.   Eckels v. Davis, 111 S.W.3d 687, 694 (Tex.

App.—Fort Worth 2003, pet. denied).

B. Discussion

      The parties do not dispute that the January 9, 2001 will is valid. Rather,

their dispute focuses on the validity of the January 17, 2001 codicil. According to

Appellants, the codicil expresses Abshire‘s intent to leave fifty-percent of her

estate to Nichols, twenty-five percent of her estate to the church, and twenty-five

percent of her estate to Dennis.2 Appellees contend, however, that the codicil

fails because the language ―just as a rough guide, I would like‖ is precatory rather


      2
       Appellants also point out that Dennis predeceased Abshire, meaning that
the bequest to Dennis failed and that Abshire‘s heirs at law will receive the
twenty-five percent bequeathed to Dennis.


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than mandatory and fails to dispose of Abshire‘s property. If the codicil is invalid,

Abshire‘s entire estate passes by intestacy, and Abshire‘s heirs at law would

receive all of Abshire‘s estate.

      To determine whether particular words are precatory or mandatory, we

look to 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.‖ Wattenburger v. Morris, 436 S.W.2d 234, 239

(Tex. Civ. App.—Fort Worth 1968, writ ref‘d n.r.e.). Thus, although words such

as ―want,‖ ―wish,‖ and ―desire‖ are precatory in their ordinary and primary

meaning, ―they are often construed as 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.‖ 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.) (citing Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943, 947

(1958)); see Thomasson v. Kirk, 859 S.W.2d 493, 495 (Tex. App.—Houston

[14th Dist.] 1993, writ denied); Wattenburger, 436 S.W.2d at 239. Moreover, a

layperson ―cannot be deemed to have used words in the same technical sense

that the words might have if they were used by an attorney,‖ and ―[u]nder such

circumstances, it is the duty of the court to make an effort to determine what was

the actual intent of the testator.‖ Bergin, 159 Tex. at 88–89, 315 S.W.2d at 946;

see Anderson v. Dubel, 580 S.W.2d 404, 409 (Tex. Civ. App.—San Antonio


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1979, writ ref‘d n.r.e.) (noting that the testatrix ―was an elderly person, not well

educated, and not learned in the law‖).

      The disputed codicil states:

      Just as a rough guide as to distribution of my estate, I would like
      Ernestine C. Nichols to have half of my funds, one-fourth to Margaret
      C. Dennis, and one-fourth to Travis Avenue Baptist Church which
      will not include annuities that I have designated to other charities.

Appellees contend that ―just as a rough guide, I would like‖ is precatory, imposes

no obligation, and is not an affirmative command or direction, and they point to

two cases that hold certain language precatory.          They rely on Huffman v.

Huffman, 161 Tex. 267, 339 S.W.2d 885 (1960), and Haltom v. Austin Nat’l Bank,

487 S.W.2d 201 (Tex. Civ. App.—Austin 1972, writ ref‘d n.r.e.). But each of

these cases is distinguishable.

      In Huffman, the relevant portions of the testator‘s holographic will stated:

―The Rotary Apts. Inc. stock belonging to me has been handed to Myrtle and

Lyter for what I lost them in the oil deal. . . . Please give part of the Rotary Apts.

Income to Pat.‖ 161 Tex. at 270, 339 S.W.2d at 886–87. The supreme court

held that the will ―simply did not bequeath the stock to Myrtle and Lyter‖ and that

the request to ―[p]lease give part of the [apartment] income to Pat‖ was

―precatory in light of the entire will.‖ Id. at 271, 339 S.W.2d at 887 (emphasis

added). In other words, the will stated only that the stock had been handed to

Myrtle and Lyter and did not otherwise express an intent to bequeath the stock to

them upon the testator‘s death. See id.



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      In Haltom, the testator‘s holographic will stated:

            I, Wayman E. Adams, being of sound mind, will that in case of
      my death all property of which I am possessed go to my wife
      Margaret Boroughts Adams as long as she lives. And after her
      death if it has not been necessary to dispose of it would like our
      home at 2815 San Gabriel, Austin[,] Texas be given to the Texas
      Fine Arts Association for a small museum.

487 S.W.2d at 202. The court held that the words ―would like‖ were precatory

and not ―words of command cloaked in the language of civility.‖            Id. at 203.

However, the testator did not, as Abshire did in this case, consistently use ―would

like‖ throughout his holographic will. Rather, the court stated, ―That Adams knew

how to use mandatory words is demonstrated in the first sentences of the will in

which he ‗willed‘ that all of his property pass to his wife for life.‖ Id. Later in the

will, however, Adams used the permissive ―would like‖ when addressing the

disposition of his home ―if it ha[d] not been necessary to dispose of it,‖ leaving

discretion to others and expressing a future gift rather than a present

testamentary disposition. Id.

      In this case, the will is clearly titled the ―Holographic Will of Marjorie B.

Abshire,‖ and Abshire consistently used the phrase ―I would like‖ throughout her

will and codicil when appointing the executor and alternate executor as well as

when addressing the portions of her estate that named beneficiaries would

receive upon her death.3 Read in context rather than as an isolated phrase, ―just

      3
      It is not insignificant in our view that Appellees contest the ―I would like‖
phrase in the codicil but do not contest the ―I would like‖ phrase in the will that
appoints the executor and alternate executor.


                                          10
as a rough guide, I would like‖ does not, in our view, leave the distribution of

Abshire‘s funds to the discretion of others. Rather, the entire will and codicil

express Abshire‘s testamentary intent to leave all of her funds, with the exception

of annuities designated to other charities, to three named beneficiaries, with

Nichols receiving fifty percent and the church and Dennis each receiving twenty-

five percent. To the extent that ―just as a rough guide, I would like‖ arguably

leaves discretion to others, that discretion relates not to whether the named

beneficiaries would receive any portion of the estate but instead to the manner in

which the executor would ensure that the three named beneficiaries receive their

respective percentages. The codicil is not precatory and expresses Abshire‘s

intent to dispose of her property. See Bergin, 159 Tex. at 89, 315 S.W.2d at 947

(holding that ―I want‖ was not precatory in light of entire instrument); Allen, 557

S.W.2d at 177–78 (holding that ―I have willed my home to [the church], but I want

them to let L.D. Moore buy it for $10,000‖ was not precatory); Wattenburger, 436

S.W.2d at 240 (holding that ―it is my desire‖ was not precatory). Thus, we hold

that the trial court erred by finding that the codicil was precatory and did not

dispose of Abshire‘s property.

      We also hold that, as used in the codicil, the term ―funds‖ is not ambiguous

and includes Abshire‘s real and personal property. This court has previously

noted that ―[t]he word ‗funds‘ in its broad meaning may include property of any

kind‖ and that ―[t]he expression, ‗funds of an estate,‘ used in a will, may mean

any property of a testator.‖ Goggans v. Simmons, 319 S.W.2d 442, 445 (Tex.


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Civ. App.—Fort Worth 1958, writ ref‘d n.r.e.). Although the phrase at issue in

Goggans involved the residuary clause of the holographic will and the disposition

of the testator‘s real property was not at issue, the principle from Goggans and

other cases applies here and requires that Abshire‘s will and codicil be

interpreted in a manner that avoids descent by intestacy if a reasonable

construction avoiding descent by intestacy is available.         Id.; see McGill, 799

S.W.2d at 676 (―A construction which would render the decedent intestate as to

any part of his estate is not favored.‖); Trim, 862 S.W.2d at 10 (stating that

holographic wills ―should be liberally construed to effect the testator‘s intent‖).

      Reading the will and codicil together in their entirety and considering the

surrounding circumstances including the label on the envelope in which they

were contained together with other notes and lists of assets, the intent of

Abshire, a layperson, can be ascertained to be that all of her estate, including

real and personal property but excluding the annuities she had designated to

other charities, pass to Nichols, Dennis, and the church in the designated

percentages. See Bergin, 159 Tex. at 88, 315 S.W.2d at 946 (stating that a

layperson ―cannot be deemed to have used words in the same technical sense

that the words might have if they were used by an attorney‖); Anderson, 580

S.W.2d at 409. If we interpreted ―funds‖ to not include Abshire‘s real property, an




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additional portion of her estate would pass by intestacy.4 But because ―funds‖

may be reasonably construed in light of the will and codicil in their entirety to

include Abshire‘s personal and real property, we must adopt that construction.

See McGill, 799 S.W.2d at 676. We hold that the term ―funds‖ is not ambiguous

within the context of Abshire‘s will and codicil and that the trial court erred by

finding that ―funds‖ did not include Abshire‘s real property.             We sustain

Appellants‘ first three issues.5

                                    V. Attorney’s Fees

        Appellants contend in their fifth issue that the trial court erred by awarding

attorney‘s fees to Appellees. Civil practice and remedies code section 37.009

permits a trial court in a declaratory judgment action, in its discretion, to ―award

costs and reasonable and necessary attorney‘s fees as are equitable and just.‖

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008). Given our disposition

of Appellants‘ first three issues, we sustain Appellants‘ fifth issue and remand this

case so that the trial court may reconsider the recoverability of attorney‘s fees.

See Double Diamond, Inc. v. Saturn, 339 S.W.3d 337, 347 (Tex. App.—Dallas

2011,       pet.   filed)   (reversing   declaratory   judgment   and   remanding   for



        4
       As we noted above, the devise to Dennis failed because Dennis
predeceased Abshire, and the twenty-five percent bequeathed to Dennis passes
to Abshire‘s heirs at law.
        5
        We do not reach Appellants‘ alternative fourth issue in which they contend
that the will and codicil are ambiguous. See Tex. R. App. P. 47.1.


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reconsideration of attorney‘s fees); Hicks v. Castille, 313 S.W.3d 874, 884 (Tex.

App.—Amarillo 2010, pet. denied) (same).

                                 VI. Conclusion

      Having sustained Appellants‘ first, second, third, and fifth issues, which are

dispositive, we reverse the trial court‘s judgment and remand this case to the trial

court for further proceedings consistent with this opinion.




                                                    ANNE GARDNER
                                                    JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: August 18, 2011




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