                                                                                 ACCEPTED
                                                                             03-15-00492-CV
                                                                                     7645485
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                        11/2/2015 3:50:13 PM
                                                                           JEFFREY D. KYLE
                                                                                      CLERK




                         NO. 03-15-00492-CV                  FILED IN
                                                      3rd COURT OF APPEALS
                                                          AUSTIN, TEXAS
                                                      11/2/2015 3:50:13 PM
                IN THE THIRD COURT OF APPEALS           JEFFREY D. KYLE
                                                              Clerk

                     FOR THE STATE OF TEXAS


              HEATHER MARTIN AND JOHN BROWN

                                 V.

                         LEONORA BROWN


On Appeal From the County Court at Law Number 1 of Bell County, Texas


                    BRIEF OF THE APPELLANTS


                  ORAL ARGUMENT REQUESTED



Tad H. Cleaves
TBA No. 24062667
Roberts & Roberts, LLP
2501 E. Elms Road, Suite A
Killeen, Texas 76542
Telephone: (254) 526-7541
Facsimile: (254) 526-5656
tcleaves@robertslegalfirm.com

ATTORNEY FOR PETIONERS AND APPELANTS




                                  i
IDENTITY OF PARTIES AND COUNSEL

Petitioners / Appellants:

      Heather Martin and John Brown

Trial and Appellate Counsel for Petitioners / Appellants:

      Tad H. Cleaves
      TBA No. 24062667
      Roberts & Roberts, LLP
      2501 E. Elms Road, Suite A
      Killeen, Texas 76542
      Telephone: (254) 526-7541
      Facsimile: (254) 526-5656
      tcleaves@robertslegalfirm.com



Respondent / Appellee:

      Leonora Brown

Trial and Appellate Counsel for Respondent / Appellee:

      Mary Black Pearson
      TBA No. 02373590
      Pearson & Pearson, LLP
      2109 Birdcreek Terrace
      Temple, Texas 76502
      Telephone: (254) 778-0699
      Facsimile: (254) 778-0500




                                      i
                         TABLE OF CONTENTS

I.     STATEMENT OF FACTS                                                   1

       A. Family History and Property                                       1

       B. Will Provisions at Issue                                          2

       C. Failure to occupy San Saba Property and Lease of San Saba

       Property                                                             2

II.    SUMMARY OF THE ARGUMENT                                              3

III.   ARGUMENT                                                             4

       A. Standard of Review                                                4

       B. Mr. Brown’s testamentary intent is unambiguous from the plain
       language of his Last Will and Testament.                             5

       C. Testator’s use of the term “occupy” does not create ambiguity.    6

       D. The Trial Court erred when it added an “abandonment”
       requirement to the devise of the San Saba Property.                  9

       E. The ruling cited by the trial court in Singleton v. Donalson, 117
       S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) does
       not support granting Appellee an indefeasible life estate.           10

IV.    CONCLUSION                                                          13

V.     APPENDIX                                                            14




                                      ii
                       TABLE OF AUTHORITIES

                             Texas State Cases

Harris v. Hines,
   137 S.W.3d 898 (Tex.App. – Texarkana 2004, no pet.)         4


Steger v. Muenster Drilling Co.,
   134 S.W.3d 359 (Tex.App. – Fort Worth 2003, pet. Denied)    4


San Antonio Area Foundation v. Lang,
   35 S.W.3d 636 (Tex. 2000)                                   5, 7, 9, 13


Lehman v. Corpus Christi Nat’l Bank,
   668 S.W.2d 687 (Tex. 194)                                   5


Spiegel v. KLRU Endowment Fund,
   228 S.W.3d 237 (Tex. App. – Austin 2007, no writ)           5


Brown v. Johnson,
   118 Tex. 143 (Tex. 1929)                                    8, 9


Ellis et al. v. Patrick et al.,
   93 S.W.2d 1201 (Tex. App.-- Waco 1936, no writ)             8, 7


Singleton v. Donalson,
   117 S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied)     10, 11, 12, 13




                                    iii
                                 Statutes

                               State Statutes

   Tex. Prop. Code § 5.008                                          7


   Tex. Prop. Code § 22.021                                         8


                             Record References

The Record citing convention contained below is used throughout
Appellants’ Brief.

CR ___            Clerk’s Record

2 RR ___          Reporter’s Record Volume Two of Three Volumes

3 RR ___          Reporter’s Record Volume Three of Three Volumes

App. Tab ___            Appendix




                                     iv
                       STATEMENT OF THE CASE

      Heather Martin and John Brown (collectively “Appellants”) make this

appeal in response to the trial court’s Order Regarding Declaratory

Judgment and Complaint for Correction of the Inventory (CR 17, 18).

Appellants were two of the three heirs to the Estate of Franklin Arthur

Brown (the “Estate”), and Leonora Brown, Appellee in the instant matter, is

both the third heir to the Estate and the executor of the Estate. In the trial

court Appellants petitioned for a declaratory judgment that certain Estate

real property be granted to Appellants in fee simple due to Leonora Brown’s

failure to “occupy” the property as required in the Last Will and Testament

of Franklin Arthur Brown (the “Will”) (CR 3-6). After a bench trial, the

trial court ruled in favor of Appellee, and Appellants are appealing that

ruling.

                            ISSUE PRESENTED

1.    Did the trial court err by ruling that the Will grants an indefeasible life

estate in the real property at issue to Appellee?




                                       v
I.    STATEMENT OF FACTS

A.    Family History and Property

      Franklin A. Brown (“Mr. Brown”) passed away on March 23, 2013.

Approximately eleven years earlier, on August 28, 2002, Decedent executed

a Last Will and Testament (“Will”), which was admitted to probate by the

trial court on July 25, 2014. At the time he executed his Will, Decedent was

married to Leonora Brown, Appellee herein, and had two living children

from an earlier marriage, who are the Appellants herein. Appellee and

Appellants are the three heirs named in the Will. App. Tab 3.

      When they married, Mr. Brown and Appellee lived together with John

Brown, Mr. Brown’s son, in an apartment in Mr. Brown’s family’s funeral

home in San Saba, Texas (2 RR 14). They then moved together to an

apartment in Killeen, Texas (Id. at 13-14), and in April 2004, Mr. Brown

and Appellee (without John Brown) moved into a home in Copperas Cove,

Texas (the “Copperas Cove Home”) (Id. at 20), where they continued to live

until Mr. Brown’s death. Id. Throughout this time period, Mr. Brown owned

a tract of land in San Saba he received prior to his marriage to Appellee (the

“San Saba Property”). CR 10. When Mr. Brown and Appellee married, there

were no structures on this property. 2 RR 15. After their marriage in 2000

and before 2004, a sheet metal building with a shop and apartment was



                                      1
constructed on the San Saba Property. 2 RR 15. John Brown lived alone in

this building for a period of time in 2004. 2 RR 15.

B.    Will Provision At Issue

      The Will, which is attached as Exhibit A in the Appendix hereto,

makes provisions for Mr. Brown’s property to be split among his wife and

two children, who are named in the Will. App. Tab 3. In Paragraph II(c) of

the Will, Mr. Brown devises, “Unto my wife for and during her natural life

or until such time as she shall fail to occupy the same, all real property

which I own in the town of San Saba, Texas. In the event she shall

predecease me or cease to occupy said property, then in either of these

events, said real property shall vest in my children, share and share alike

(Emphasis Added).” App. Tab 3. Mr. Brown also leaves the residue of his

estate in equal shares to his wife and two children. App. Tab 3.



C.    Failure to Occupy San Saba Property and Lease of the San Saba

Property

      Since moving to the Copperas Cove Home in 2004, Appellee has

lived there continuously. 2 RR 20. She also claims the Copperas Cove Home

as her homestead for tax purposes, and she intends to continue to live in the

Copperas Cove Home. 2 RR 20-21. Furthermore, on April 4, 2015, Appellee



                                      2
entered into a written Lease Agreement (the “Lease Agreement”) to lease the

San Saba Property for six-months. 3 RR Ex 1. Appellee plans to use the

income derived from leasing the San Saba Property to, among other things,

“provide [her] with a little bit of income.” 2 RR 26. No evidence was

presented to the trial court that Appellee ever intends to reside in, live upon,

occupy or use the San Saba Property.



II.   SUMMARY OF THE ARGUMENT

      The Last Will and Testament of Franklin Arthur Brown is a simple

and unambiguous document. It runs four pages and disposes of all Mr.

Brown’s property in just a few paragraphs. App. Tab 3. Mr. Brown’s

testamentary intent is apparent on the face of the document, and Appellants

want it to be construed according to the plain language in which it is written.

      The will provision at issue herein deals with title to real property in

San Saba, Texas. The provision as it reads grants a life estate in real property

to Appellee conditioned on Appellee “occupying” the property. App. Tab 3.

The text of the Will creates a defeasible life estate subject to an executory

limitation. Appellants argue that Mr. Brown’s testamentary intent is clear

from the language of the Will, and because the occupancy requirement has

not been met by Appellee, her rights to the property are forfeit.



                                       3
      In order for the trial court to look outside the four corners of the Will

for testamentary intent, the Will must contain some ambiguity of language.

The use of the word “occupy” and Mr. Brown’s inclusion of a defeasible life

estate subject to an executory limitation does not create ambiguity in his

Will, so the trial court should not have looked outside the Will to determine

Mr. Brown’s testamentary intent. Furthermore, the addition by the trial court

of a condition that Appellee actively abandon the property, in the absence of

any language in the Will or evidence in the record to support such a ruling,

was improper.


III. ARGUMENT

A.    Standard of Review

      The question of whether terms of a will are ambiguous is a question of

law. Harris v. Hines, 137 S.W.3d 898, 903 (Tex.App. – Texarkana 2004, no

pet.). If the court can give a definite legal meaning or interpretation to the

words used, the will is unambiguous, and the court should construe it as a

matter of law. Steger v. Muenster Drilling Co., 134 S.W.3d 359, 373

(Tex.App. – Fort Worth 2003, pet. Denied). Questions of law are reviewed

de novo. Harris, 137 S.W.3d at 903. In the instant case, the trial court’s

interpretation of an unambiguous provision of Mr. Brown’s Will is at issue,

so the Appellate Court’s review should be a de novo standard.

                                      4
B.   Mr. Brown’s testamentary intent is unambiguous from the plain
language of his Last Will and Testament.

         In his Last Will and Testament, Mr. Brown was unambiguous with the

disposition of his property, so the trial court abused its discretion by looking

to extrinsic evidence for Mr. Brown’s testamentary intent. If a will is

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

search of the testator’s intent. San Antonio Area Foundation v. Lang, 35

S.W.3d 636, 639 (Tex. 2000); Spiegel v. KLRU Endowment Fund, 228

S.W.3d 237, 243 (Tex. App. – Austin 2007); Lehman v. Corpus Christi Nat’l

Bank, 668 S.W.2d 687, 688 (Tex. 1984). When there is no dispute about the

meaning of words used in a will, extrinsic evidence should not be received

to show that the testator intended something outside the words used. San

Antonio Area Foundation v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). In

Section II (c) of his Last Will and Testament (“Will”), Mr. Brown makes the

following devise:

    Unto my wife for and during her natural life or until such time as she
    fail to occupy the same, all real property which I own in the town of
    San Saba, Texas. In the event she shall predecease me or cease to
    occupy said property, then in either of those events, said property
    shall pass to and vest in my children, share and share alike. App. Tab
    3.



                                       5
From the plain language of the Will, Mr. Brown is making a making a gift of

real property to his wife for her lifetime, but for her to receive this devise,

Mr. Brown places the condition that his wife “occupy” the real property.

This condition is evidently so important to Mr. Brown, that he repeats the

condition twice. On its face, a defeasible life estate is being granted subject

to an executory limitation. Mr. Brown’s wife would receive the real property

if she (1) survived Mr. Brown and (2) occupied the property. Once she (1)

dies or (2) ceases to occupy said property, according to the plain language of

the Will from which Mr. Brown’s testamentary intent should be derived, the

real property passes to Mr. Brown’s children. In the instant case, the trial

court, granted Appellee an indefeasible life estate. CR 17-18. In its Findings

of Fact & Conclusions of Law, did not conclude that anything in the Will

was ambiguous. CR 20-22. In the absence of ambiguity, the trial court erred

by granting Appellee an indefeasible life estate, contrary to the unambiguous

language of Mr. Brown’s Will, and Appellants request this Court reverse the

trial court’s judgment.




                                      6
C.    Testator’s use of the term “occupy” does not create ambiguity.

      Testator’s requirement that the gift of the San Saba Property to

Appellee be conditioned on her occupying the real estate does not create an

ambiguity in the Will.

In the Lang case, the Lang family was claiming that the term “real property”

was an ambiguous term in a will. Lang, 35 S.W.3d at 641. Quoting from that

case, “…if ‘real property’ can be made ambiguous or unclear by extrinsic

evidence, then few – if any – terms in the legal lexicon cannot be made

unclear by extrinsic evidence.” Id. Likewise, “occupy” in a real estate

context is not an ambiguous or unclear word, and to hold otherwise would,

as with the term “real property” in the Lang case, undermine the use of this

term in legal contexts.

      When used in regards to real property, to “occupy” property always

requires actual possession of the real estate. In Texas statutes and case law,

“occupancy” means actually living on a piece of real estate or in an

apartment or house. Examples of the use of “occupy” to indicate mere

ownership of land are difficult and perhaps impossible to find. Section 5.008

of the Texas Property Code requires an owner of real property who is selling

his or her property to disclose whether he or she “occupies” or does not

“occupy” the real estate being sold – indicating a relationship between



                                      7
occupancy and residing within or on a piece of real estate. Tex. Prop. Code §

5.008. Section 22.021 of the Texas Property Code allows a person who is

not the owner of piece of real property to be reimbursed for improvements to

that property made while he or she used and occupied the property, again

indicating a relationship between occupation of land and actually being

present on and in physical possession of that land. Tex. Prop. Code § 22.021.

The Texas Supreme Court held that in a landlord – tenant relationship, it is

“indispensible” that the intention of the landlord is to dispossess himself of

the premises and the tenant occupy them. Brown v. Johnson, 118 Tex. 143,

147 (Tex. 1929). In Ellis et al. v. Patrick et al., the Court of Civil Appeals of

Texas, Waco, discussed occupancy of land in the case of a homestead

dispute, creating a relationship between “occupancy” and “possession.” Ellis

et al. v. Patrick et al., 93 S.W.2d 1201 (Tex. App.-- Waco 1936). Further,

Merriam-Webster Online defines “Occupy” as meaning “to live in (a house,

apartment, etc.)” and “to reside in as an owner or tenant.” “Occupy” Def. 4.

Merriam-Webster Online. Merriam-Webster, n.d. Web. 15 June 2015. In the

instant case, Mr. Brown places an occupancy requirement on his wife’s

ability to maintain her life estate of his San Saba Property. According to her

own testimony, Appellee does not currently reside on the San Saba Property

and has not resided on the San Saba Property since before Mr. Brown’s



                                       8
death. 2 RR 20. Furthermore, the San Saba Property is currently leased to a

tenant who has rights to possession of the San Saba Property. 3 RR Ex. 1.

Given the relationship between occupancy and physical possession of or

residence in real estate, Appellee’s lack of physical possession due to her

residence in Copperas Cove, Texas indicates her failure to occupy the San

Saba Property, thereby ending her claim to a life estate in it under the terms

of the Will. That, along with the lease of the San Saba Property, where,

under the Brown v. Johnson ‘rule’ above, a landlord cannot occupy leased

property, Appellee does not occupy the San Saba Property, and the trial

court committed reversible error in granting her an indefeasible life estate.



D.    The Trial Court erred when it added an “abandonment”

requirement to the devise of the San Saba Property.

      In its 6th Conclusion of Law, the trial court concluded that Appellee’s

life estate “…would remain so unless she abandoned the property.” CR 22.

As stated above, unless an ambiguity exists in a Will, the intention of the

testator must be determined from the actual text of the document. Lang, 35

S.W.3d at 639. By adding the requirement that Appellee “abandon” the San

Saba Property before Appellants can take ownership, the trial court is

inserting a new provision into the Will. Mr. Brown was clear in his will that



                                       9
once his wife ceased to occupy the San Saba Property, fee simple ownership

would pass to his children. No evidence was presented to the trial court that

Mr. Brown intended to use the term “abandonment” in place of “occupy,” so

the trial court erred when granting Appellee a life estate and including this

additional condition and hurdle to Appellants receipt of ownership.



E.    The ruling cited by the trial court in Singleton v. Donalson, 117

S.W.3d 516 (Tex. App – Beaumont 2003, pet. Denied) does not support

granting Appellee an indefeasible life estate.

      The ruling in Singleton v. Donalson cited in the trial court’s

Conclusions of Law (CR 21 – 22) and relied on to grant Appellee an

indefeasible life estate does not apply to the instant case. In the Donalson

case, Ruth Hooks Donalson executed a will devising a life estate in some

property to her spouse, George Donalson, III, with a “reversionary interest”

to other relatives named in the will. Singleton v. Donalson, 117 S.W.3d 516,

517 (Tex. App. – Beaumont 2003, pet. Denied). The holders of the

reversionary interests sued Mr. Donalson for wasting assets. Id. Summary

judgment was granted in favor of Mr. Donalson, and the other relatives

appealed that decision. Id. The testamentary language from Ms. Donalson’s

will is excerpted below:



                                     10
    My separate real property, hereinabove referred to in III A., including
   fee, surface, minerals, royalties, and mixed, and hereby intending to
   include all the rest, remainder and residue of my estate, not heretofore
   disposed of, I hereby give, devise and bequeath to my beloved
   husband, George E. Donalson, III., a Life Estate. My said husband is
   to enjoy the use and benefits of said properties, including the income
   derived from said properties, said income to become his separate
   property as paid. As stated, my said husband is to enjoy the use and
   benefits of said properties and to do with as he sees fit for the rest
   of his life, with reversion of the corpus of said properties upon his
   death [to other named relatives]. Id. at 517-518.


In the Donalson case, a wife’s will granted a life estate in property to her

husband with the explicit qualification that he could do with that property

“as he sees fit for the rest of his life.” Id. The Appellate Court agreed with

Mr. Donalson and the trial court and upheld the trial court’s judgment in his

favor. The Appellate Court relied on the (1) unambiguous language of the

devise and (2) the intent of the testator as expressed in the plain language of

her will to make its ruling. Id. at 518-519. The trial court in the instant case

interprets   Donalson to support granting an indefeasible life estate to

Appellee, because “the first taker of an interest will be construed to have

been granted ‘the greatest estate which they, by a fair construction in

harmony with the will as a whole, are capable of passing.’” CR 21-22. While



                                      11
that quote is lifted from Donalson, it is not applied correctly in the instant

case. The Appellate Court in Donalson was very deferential to the text of

Ms. Donalson’s will. Even where it overturned default property rules

concerning the waste of the corpus of a life estate, because Ms. Donalson

was so specific in the wording of her devise, the Appellate Court was

confident that Ms. Donalson’s intent was ascertainable from the plain text

and enforced the will as written. Donalson, 117 S.W.3d at 517-520. In the

case now before the Court, Mr. Brown was also very specific with his desire

that his wife receive a life estate to the San Saba Property conditioned upon

her occupying the property. He wrote the occupancy requirement into the

will twice. App. Tab 3. To disregard Mr. Brown’s plain and unambiguous

desire that the life estate he granted to Appellee in his will be conditioned on

her occupancy of the property is reversible error, and Appellants ask this

Court to so reverse the trial court’s grant of an indefeasible life estate to

Appellee.




                                      12
IV.   CONCLUSION

      Appellants request that this Court hold that:

      (1) The Will being construed in this case is unambiguous on its face,

and the trial court erred by going beyond the plain language of the text when

determining the testator’s intent in this Will. San Antonio Area Foundation

v. Lang, 35 S.W.3d 636, 639 (Tex. 2000).

      (2) The term “occupy” as used in the Will is not an ambiguous term,

that to “occupy” the San Saba Property would require maintaining a

residence in or physical possession of the San Saba Property, and that the

trial court erred by granting Appellee a life estate in the San Saba Property

contrary to the Will’s occupancy requirement.

      (3) The devise of a defeasible life estate subject to an executory

limitation does not create ambiguity, and the trial court committed reversible

error when it (1) ignored the intent of the testator by substituting other

requirements (such as abandonment of the property) and (2) disregarded the

unambiguous terms of the devise. Singleton v. Donalson, 117 S.W.3d 516,

518-519 (Tex. App. – Beaumont 2003, pet. Denied).




                                     13
V.    APPENDIX

Order Regarding Declaratory Judgment and                             Tab 1
Complaint for Correction of the Inventory

Findings of Fact & Conclusions of Law                                Tab 2

Last Will and Testament of Franklin Arthur Brown                     Tab 3



                         Respectfully Submitted,

                         ROBERTS & ROBERTS, L.L.P.




                          By
                          Tad H. Cleaves
                          State Bar No. 24062667
                          2501 East Elms Road, Ste A
                          Killeen, Texas 76542
                          (254) 526-7541
                          Fax: (254) 526-5656
                          tcleaves@robertslegalfirm.com

                        Certificate of Compliance

I certify that this document brief/petition was prepared with Microsoft Word

2012, and that, according to that program’s word-count function, the

sections covered by TRAP 9.4(i)(1) contain 3,748 words.


                                      /s/ Tad H. Cleaves _______________
                                      Tad H. Cleaves
                                      Attorney for Appellants



                                    14
                            Certificate of Service

      I certify that a true copy of this Brief of the Appellants was served in

accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each

party or that party’s lead counsel as follows:


Party: Leonora Brown

Lead attorney: Mary Black Pearson

Address of service: 2109 Birdcreek Terrace, Temple, Texas 76502

Method of service: by fax and by electronic service

Date of service: November 2, 2015


                                        /s/ Tad H. Cleaves _______________
                                        Tad H. Cleaves
                                        Attorney for Appellants




                                      15
Tab 1




  1
17
18
Tab 2




  2
20
21
22
Tab 3




  3
                                               LOUIS M. CRUMP

                                                Attorney at Law
                                                  P. O . . S e * ^ > 3 S - .
                                             San Saba, Texas 76877
#




                                    L A S T W I L L A N D T E S TA M E N T


                                                         O F


                                    FRANKLIN ARTHUR BROWN


           I, FRANKLIN ARTHUR BROWN, of San Saba County, Texas, being of sound and

    disposing mind and memory and above the age of eighteen (18) years do hereby make, declare
and publish this my Last Will and Testament, hereby revoking all previous wills and codicils, if

    any, by me at any time heretofore made, to-wit:

                                                           I.


           I am married to Leonora Brown and all references in this will to "my wife" are to her.

    I have two children by a previous marriage, John Franklin Brown, II and Heather Elaine Brown.

All references in this will to "my children" are to them.

                                                          II.


           After payment of my said debts including funeral expenses, expenses of last illness, and

    expenses which may be incurred in connection with the administration of my estate, I do hereby

give, devise and bequeath all property, both real and personal, which 1 may own at the time of my

death, as follows;

           a) Unto my wife and my children each a one-third (1/3) interest in the balance owing to

me on promissory note executed by Howell-Doran Funeral Home payable to me.

           b) Unto my wife all accounts which I have in Arrowhead Bank, San Saba, Texas.

           c) Unto my wife for and during her natural life or until such time as she shall fail to occupy

the same, all real property which I own in the town of San Saba, Texas. In the event she shall

predecease me or cease to occupy said property, then in either of those events, said real property

    shall pass to and vest in my children, share and share alike
