                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                 NO. 02-15-00353-CV


ESTATE OF GLENDA RHOADES,
DECEASED




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             FROM COUNTY COURT AT LAW NO. 2 OF PARKER COUNTY
                       TRIAL COURT NO. CIV-13-0909

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                 CONCURRING1 AND DISSENTING OPINION

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                                   I. INTRODUCTION

         This is an appeal from the trial court’s summary judgment construing the

will of the decedent, Glenda Rhoades. Because the Majority Opinion fails to

properly apply the rules of will construction to Rhoades’s will and construes

Rhoades’s will contrary to her expressed intent, I dissent.

         I concur with the Majority Opinion’s disposition of Appellants’ jurisdictional
         1

issue.
                                II. BACKGROUND

      Rhoades signed a will in which she devised all of her interest in her

residential homestead, all of her personal property, and all of the rest of her

estate to her father Glen; however, if her father predeceased her—as is the case

here—she provided that “his portion” was to be distributed to Appellee Elise

Kinler for the benefit of Kinler and Kinler’s son. Rhoades then provided that any

other property that had not been disposed of under any other provision of her will

should be distributed to her heirs-at-law, who are Appellants Norma Anderson,

Paula Gilleland, Gerald Don Marrs, Joann Dycus, and Vicki George.

      Rhoades’s will provided for an independent administration and named

Kinler as the independent executor.      After Rhoades’s death, Kinler filed an

application to probate Rhoades’s will. Appellants filed a petition for declaratory

judgment, seeking a declaration that Rhoades’s estate passed to Appellants

under the “residuary clause” because the distributions to Rhoades’s father had

lapsed.   Kinler likewise filed a declaratory-judgment petition, requesting a

declaration that the entire estate passed to her based on the construction of the

will as a whole.   Kinler and Appellants filed competing motions for summary

judgment, as well as responses. The trial court signed an order granting Kinler’s

summary-judgment motion and denying Appellants’ summary-judgment motion.

Appellants perfected this appeal and raise two issues: the trial court erred by

granting Kinler’s motion for summary judgment and erred by denying Appellants’

motion for summary judgment.

                                        2
III. THE TRIAL COURT DID NOT ERR BY GRANTING KINLER’S MOTION FOR SUMMARY
    JUDGMENT AND BY DENYING APPELLANTS’ MOTION FOR SUMMARY JUDGMENT

                             A. Standard of Review

      Absent ambiguity, the construction of a will is a matter of law. 2 Penland v.

Agnich, 940 S.W.2d 324, 326 (Tex. App.—Dallas 1997, writ denied).

Accordingly, we review de novo the question of the construction of an

unambiguous will.    See Harris v. Hines, 137 S.W.3d 898, 904 (Tex. App.—

Texarkana 2004, no pet.). In construing a will, our objective is to discern and

effectuate the testatrix’s intent as reflected in the instrument as a whole, giving

effect to all its parts. Hysaw v. Dawkins, 483 S.W.3d 1, 7 (Tex. 2016); San

Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000); Gee v. Read, 606

S.W.2d 677, 680 (Tex. 1980). The intent must be drawn from the will, not the will

from the intent. Hysaw, 483 S.W.3d at 7. Thus, we focus not on what the

testatrix intended to write but on the meaning of the words she actually used. Id.

Ascertaining a testatrix’s intent from the four corners of a will requires careful

examination of the words used. Id. If possible, all parts of the will must be

harmonized, and every sentence, clause, and word must be considered in

ascertaining the testatrix’s intent. See Welch v. Straach, 531 S.W.2d 319, 322

(Tex. 1975); Steger v. Muenster Drilling Co., 134 S.W.3d 359, 372 (Tex. App.—

Fort Worth 2003, pet. denied). We presume that the testatrix placed nothing

superfluous or meaningless in her will and that she intended every word to play a


      2
       Kinler and Appellants agree that Rhoades’s will is unambiguous.

                                        3
part in the disposition of her property. See Steger, 134 S.W.3d at 372; Cooley v.

Williams, 31 S.W.3d 810, 812 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

                              B. Rhoades’s Will

      Article III and Article V of Rhoades’s will provide, in pertinent part, as

follows.3

                                    III.
                          DISPOSITION OF ESTATE

      A.    I give all of my interest in the real property and the
            improvements thereto which constitute my residential
            homestead at the time of my death to Glen Rhoades in equal
            shares.

      B.    I give, devise[,] and bequeath all of my personal property to
            Glen Rhoades in equal shares.

      C.    I give, devise[,] and bequeath all of the rest of my estate of
            whatsoever kind and wheresoever situated as follows to Glen
            Rhoades. In the event that Glen Rhoades should predecease
            me, his portion shall be distributed to ELISE KINLER for the
            benefit of Elise and Michael Kinler. In the event that Elise
            Kinler should predecease me, then said portion shall be
            distributed to Michael Kinler.

      D.    Any other property of mine that has not been disposed of
            under any other provision of this Will shall go and be
            distributed to my heirs-at-law. Their identity and respective
            shares shall be determined in all respects as if my death had
            occurred immediately following the happening of the event
            requiring such distribution, and according to the laws of Texas
            then in force governing the distribution of the estate of an
            intestate.

            ....


      3
       Rhoades’s entire will is attached hereto as Appendix A.

                                       4
                                     V.
                             CONTINGENT TRUSTS

            ....

            TRUST FOR GLEN RHOADES: In the even[t] that GLEN
      RHOADES is, at the time of my death, a resident of a residential
      care home, nursing home, assisted living facility or similar facility, if
      and in that event I direct that his portion as described in Article III
      above shall be distributed to my Trustee, IN TRUST
      NEVERTHELESS, for the uses and purposes hereinafter set forth.
      My Trustee shall not distribute such property outright, but instead my
      Trustee shall hold all of such property in separate trust for the
      supplemental needs of GLEN RHOADES as follows:

             A. This trust shall be titled The Glen Rhoades Supplemental
      Needs Trust. I direct that the trustee shall provide for the
      supplemental needs of Glen Rhoades without interfering with or
      reducing the benefits Glen Rhoades would be entitled to receive
      from any state or federal agency and to maximize the benefits
      available to Glen Rhoades. I intend that the assets remaining in
      trust for Glen Rhoades be used to supplement other benefits that
      Glen Rhoades might be entitled to receive and explicitly not be used
      for Glen Rhoades’s basic support needs until the death of Glen
      Rhoades.

             B. Upon the death of Glen Rhoades, the remainder, if any,
      shall be distributed to Elise Kinler. In the event that Elise Kinler has
      predecease[d] the final distribution, said remainder shall be
      distributed to Michael Kinler. [Emphasis added.]

                            C. The Parties’ Positions

                             1. Appellants’ Position

      Appellants assert that because Kinler is not mentioned in Article III,

Paragraphs A or B, the gifts to Glen identified in those paragraphs “lapsed.”

Accordingly, Appellants argue that these lapsed gifts passed to them under the

“residuary clause” set forth in Article III, Paragraph D. Appellants contend that


                                         5
“[t]he issue before this Court is to determine which paragraph—Article III C, or

Article III D—is the true residuary clause in Decedent’s Will.”                 Appellants

admittedly exclude Article V from their analysis of Rhoades’s will.4

                                 2. Kinler’s Position

      Kinler asserts that “this is not a complicated will dispute.” She argues that

the will named one beneficiary, Rhoades’s father Glen, and named her as the

first alternate or contingent beneficiary. According to Kinler, Glen was to receive

all of Rhoades’s estate as his “bucket,” and then his “bucket” was to pass to

Kinler if he predeceased Rhoades. Kinler points out that Article III, Paragraph C

gifts to her Glen’s “portion” after identifying what constituted Glen’s portion in

Paragraphs A, B, and C. She further contends that Article V specifically explains

that Glen’s “portion” means his entire collective interest.           Kinler argues that

applying the rules of will construction and construing the will as a whole, she is

entitled to all of Rhoades’s interest in the residential homestead (Paragraph A),

all of Rhoades’s personal property (Paragraph B), and all of the rest of

Rhoades’s estate (Paragraph C) because these gifts—which are Glen’s portion


      4
       Appellants further argue:

             There is no language in Article V (or elsewhere in the Will)
      which directs this Court to use the clarity of Article V to help bolster
      [Kinler’s] alleged entitlement under Article III. . . . Because Glen
      Rhoades predeceased the Decedent, the only provision of the Will
      which determines the disposition of Decedent’s estate is Article III.
      [Kinler’s] pleas to the trial court to treat Article III as if it contained the
      words found in Article V should have been ignored.

                                            6
under Rhoades’s will—passed over to her as the first named contingent

beneficiary of Glen’s portion if Glen predeceased Rhoades. Kinler contends that

Article III, Paragraph D addresses disposition of Rhoades’s estate, including

Glen’s portion, in the event the contingent beneficiaries named in the preceding

paragraphs predeceased Rhoades; because she, Kinler, is a contingent

beneficiary who did not predecease Rhoades, Kinler asserts Paragraph D was

not triggered.

                  D. De Novo Construction of Rhoades’s Will
                    Applying the Rules of Will Construction

   1. The Will is Construed as a Whole to Effectuate the Testatrix’s Intent

      The cardinal rule of will construction is that the entire will is examined to

determine the testatrix’s intent.    See Hysaw, 483 S.W.3d at 7 (“Today, we

reaffirm our commitment to a holistic approach aimed at ascertaining intent from

all words and all parts of the conveying instrument”); Heller v. Heller, 114 Tex.

401, 410, 269 S.W. 771, 774 (1925) (“[A]n elementary rule of construction with

reference to wills is that the testator’s intention is to be collected from the whole

of the will taken together, and not from detached portions.”); see also Lang, 35

S.W.3d at 639; Bergin v. Bergin, 159 Tex. 83, 89, 315 S.W.2d 943, 946–47

(1958); Disabled Am. Veterans v. Mullin, 773 S.W.2d 408, 410 (Tex. App.—San

Antonio 1989, no writ); George W. Thompson, 2 Construction and Interpretation

of Wills § 41 (1928) (describing “the first rule of construction” with respect to wills

as ascertaining the intention of the testator from the four corners of the will).


                                          7
      An examination of Rhoades’s entire will shows her intent was (1) to leave

her entire estate to her father Glen, either directly as set forth in Article III or by

means of a trust as set forth in Article V if Glen resided in a nursing home at the

time of her death, and (2) to leave Glen’s portion of her estate, i.e., her entire

estate as set forth in Article III, to Kinler if Glen predeceased her or to leave

pursuant to Article V the entire balance remaining in Glen’s trust to Kinler upon

Glen’s death. Thus, Rhoades’s desired testamentary scheme, as ascertained

from her entire will, was to name her father Glen as the primary beneficiary of her

entire estate, to name Kinler the first alternate or contingent beneficiary, to name

Kinler’s son as the second alternate or contingent beneficiary, and to provide that

any undisposed-of property would be distributed to her heirs-at-law, i.e.,

according to the laws of intestacy.

      The Majority Opinion does not examine Rhoades’s entire will, the four-

corners of the will, to determine her intent or her testamentary scheme as a

whole. Contrary to this cardinal rule of will construction, as urged by Appellants,

the Majority Opinion views Article III in a vacuum without any effort to reconcile it

with Rhoades’s intent as expressed in Article V—that “his [Glen’s] portion” of her

estate includes all of the property identified in Article III: the real property and

improvements     constituting   Rhoades’s     residential   homestead,     Rhoades’s

personal property, and all of the rest of Rhoades’s estate of whatsoever kind and

wheresoever situated. But see Hysaw, 483 S.W.3d at 7 (requiring intent to be

determined from examination of all parts of will); Lang, 35 S.W.3d at 639 (same);

                                          8
Bergin, 159 Tex. at 89, 315 S.W.2d at 946–47 (same); Heller, 114 Tex. at 410,

269 S.W. at 774 (same). To the extent Article III, Paragraph C standing alone

could somehow possibly be construed as limiting Glen’s portion to only “the rest

of [Rhoades’s] estate of whatsoever kind and wheresoever situated,”5 that

possible stand-alone construction of Paragraph C cannot destroy Rhoades’s

explicit expressed intention set forth in the remaining portion of her will (Article V)

as to what constitutes Glen’s portion of her estate. See, e.g., Bergin, 159 Tex. at

89, 315 S.W.2d at 947 (“We have examined the will in the light of these cardinal

rules and hold that the first paragraph of the will, which, standing alone would

leave an absolute fee title to respondent, cannot destroy the effect of the

remaining portions of the will, which plainly provide that respondent shall receive

the benefits of the stock only until she remarries or dies.”). The Majority Opinion

fails to give effect to Rhoades’s intent expressed in her will that her father Glen,

as his portion of her estate, take all of the real property and improvements

constituting her residential homestead, her personal property, and all of the rest

      5
         I do not believe such a construction is possible in any event. To construe
the phrase “his portion” in Article III as relating solely to the property described in
Paragraph C, the Majority Opinion essentially redrafts Paragraph C to provide a
limitation Rhoades omitted from her will. The construction propounded by the
Majority Opinion rewrites Paragraph C to add the italicized language: “I give,
devise and bequeath all of the rest of my estate of whatsoever kind and
wheresoever situated as follows to Glen Rhoades. In the event that Glen
Rhoades should predecease me, his portion [as described solely in the
preceding sentence] shall be distributed to ELISE KINLER for the benefit of Elise
and Michael Kinler.” [Emphasis added.] See Lang, 35 S.W.3d at 639 (stating
that courts must not redraft wills to vary or add provisions “under the guise of
construction of the language of the will” to reach a presumed intent).

                                          9
of her estate of whatsoever kind and wheresoever situated either directly or via a

trust if he resided in a nursing home at the time of her death and that if Glen

predeceased her, his portion be given to Kinler.

                 2. Same Term Is to be Given Same Meaning

      “When the testator uses the same words in different parts of the will with

reference to the same subject matter, we presume he intended the words to have

the same meaning unless the context indicates the testator used the words in a

different sense.” Eisen v. Capital One, Nat’l Ass’n, 232 S.W.3d 309, 313 (Tex.

App.—Beaumont 2007, pet. denied); see also Weathers v. Robertson, 331

S.W.2d 87, 90 (Tex. Civ. App.—Beaumont 1959, writ ref’d n.r.e.) (stating that a

term used in a will should be construed as having the same meaning throughout

the will); 2 Construction and Interpretation of Wills § 78 (explaining that “words or

phrases occurring more than once in a will, or the same words used in different

parts of the same will, are presumptively used in the same sense and are to

receive the same construction”).

      The second sentence of Paragraph C of Article III provides, “In the event

that Glen Rhoades should predecease me, his portion shall be distributed to

ELISE KINLER for the benefit of Elise and Michael Kinler.” [Emphasis added.]

Rhoades’s intent in using the term “his portion” in Paragraph C of Article III is

clarified by her use of the exact same term in Article V. The term “his portion” as

used in Article V straightforwardly encompasses as Glen’s portion of Rhoades’s

estate, all of Rhoades’s “interest in the real property and the improvements

                                         10
thereto which constitute my residential homestead[,]” “all of [Rhoades’s] personal

property,]” and “all of the rest of [Rhoades’s] estate of whatsoever kind and

wheresoever situated.” The term “his portion” in Paragraph C of Article III should

be given the same meaning that same term has by express definition in Article V.

See Eisen, 232 S.W.3d at 314 (construing the term “beneficiary” in both Article VI

and Article IX of testator’s will to have the same definition pursuant to the

definition testator provided for the term in Article VI).

      The Majority Opinion, however, wholly ignores Article V and fails to apply

the rule of will construction that the same term used in the same will should be

given the same meaning. Consequently, under the Majority Opinion’s holding,

the term “his portion” has two completely different meanings in the will:


      •      In Article III: per the Majority Opinion’s holding, “his portion” consists
             solely of the property described in Paragraph C in Article III (i.e., a
             parcel of non-homestead real property).

      •      In Article V (ignored by the Majority Opinion): per the express
             language of the will, “his portion” consists of all property devised to
             Glen as described in Article III (i.e., all of Rhoades’s interest in the
             real property and improvements thereto constituting her residential
             homestead, all of her personal property, and all of the rest of her
             estate of whatsoever kind and wheresoever situated).

But see id. (holding that when testator uses same words in different parts of

same will, words presumed to have same meaning); Weathers, 331 S.W.2d at 90

(stating that term used in will should be construed as having same meaning

throughout will).



                                           11
     3. A Will’s Internal Formatting Cannot Thwart the Testatrix’s Intent

      “[A] will is not to be read so as to contradict itself if its apparent

contradictions can be reconciled by bringing the various clauses together and

deducing a consistent interpretation from the whole context.” Jones’ Unknown

Heirs v. Dorchester, 224 S.W. 596, 601 (Tex. Civ. App.—Amarillo 1920, writ

dism’d w.o.j.); see also Hysaw, 483 S.W.3d at 13 (explaining that “apparent

inconsistencies or contradictions must be harmonized, to the extent possible, by

construing the instrument as a whole”).        Appellants’ position, adopted by the

Majority Opinion, stems primarily, if not exclusively, from the labeling of the

paragraphs in Article III of Rhoades’s will as Paragraphs A, B, C, and D. That is,

Appellants’ position is not based on the actual words of Rhoades’s will but on the

internal Paragraph A, B, C, and D formatting of Rhoades’s will. Based on the

will’s internal formatting’s use of the letters A, B, C, and D, Appellants treat each

of these paragraphs as separate stand-alone provisions.6 But reading the actual

words of these four paragraphs together, it is clear that Rhoades intended to

name her father Glen as the will’s beneficiary and to name Kinler as the first


      6
       Appellants assert the following:

            Kinler is mentioned only in Section C. Only Glen Rhoades is
      mentioned in Sections A and B, and he failed to survive the
      Decedent. Unambiguously, Decedent failed to include language in
      either Section A or Section B which would cause those lapsed
      bequests to pass to Kinler.         Instead, Decedent left a very
      unambiguous residuary bequest in Section D that left all of the
      “lapsed” gifts to the Heirs-at-Law.

                                          12
alternate or contingent beneficiary. Simply removing the internal A, B, C, and D

paragraph formatting makes this obvious:

            I give all of my interest in the real property and the
            improvements thereto which constitute my residential
            homestead at the time of my death to Glen Rhoades in equal
            shares. I give, devise[,] and bequeath all of my personal
            property to Glen Rhoades in equal shares. I give, devise[,]
            and bequeath all of the rest of my estate of whatsoever kind
            and wheresoever situated as follows to Glen Rhoades. In the
            event that Glen Rhoades should predecease me, his portion
            shall be distributed to ELISE KINLER for the benefit of Elise
            and Michael Kinler. In the event that Elise Kinler should
            predecease me, then said portion shall be distributed to
            Michael Kinler. Any other property of mine that has not been
            disposed of under any other provision of this Will shall go and
            be distributed to my heirs-at-law. Their identity and respective
            shares shall be determined in all respects as if my death had
            occurred immediately following the happening of the event
            requiring such distribution, and according to the laws of Texas
            then in force governing the distribution of the estate of an
            intestate. [Emphasis added.]

See Welch, 531 S.W.2d at 322 (“[I]t is always permissible, in fact proper, to look

beyond mere grammatical form to what may be termed the internal evidence of

the writer’s intention.”); cf. Dorchester, 224 S.W. at 602 (construing seventh

paragraph of will by looking to eighth and ninth paragraphs of will). By adopting

Appellants’ contention that Paragraphs A, B, C, and D of Article III are stand-

alone provisions that cannot be read in connection with one another, the Majority

Opinion improperly elevates grammatical form over testamentary-scheme

substance. See McMurray v. Stanley, 69 Tex. 227, 230, 6 S.W. 412, 413 (1887)

(“In construing the will, all its provisions should be looked to, for the purpose of

ascertaining what the real intention of the testatrix was; and . . . any particular

                                        13
paragraph of the will which, considered alone, would indicate a contrary intent,

must yield to the intention manifested by the whole instrument.”).

       4. Contingent Beneficiaries Take Over Residuary Beneficiaries

      Article III of Rhoades’s will sets forth a list of contingent beneficiaries—

Elise Kinler first and then Michael Kinler—who would take Glen’s portion of her

estate in the event Glen predeceased her. Notably, Rhoades utilized the same

disposition for the remainder of the trust in Article V. Because Rhoades listed

contingent beneficiaries for Glen’s portion of the estate and because the named

contingent beneficiaries did not predecease Rhoades, there are no failed or

lapsed gifts; thus, contrary to Appellants’ position, the Anti-Lapse Statute does

not apply. See Rossi v. Rossi, 448 S.W.2d 162, 164 (Tex. Civ. App.—Houston

[14th Dist.] 1969, writ ref’d n.r.e.) (“The [Anti-Lapse Statute] is simply inapplicable

where there is a valid testamentary disposition as a gift over and a legatee or

devisee has predeceased the testator.”). And this construction of Article III as

containing no failed or lapsed gifts does not render Paragraph D meaningless, as

the Majority Opinion states in a footnote. Paragraph D has a purpose: it acts as

the residuary clause and provides for the disposition of the estate if the named

contingent beneficiaries predeceased Rhoades.            Based on the facts here,

Paragraph D was not triggered because at least one of the named contingent

beneficiaries—Kinler—was alive at the time of Rhoades’s death.                 Simply

because a provision is not triggered does not render it “meaningless.” Cf. In re

M.M.M., 428 S.W.3d 389, 396 (Tex. App.—Houston [14th Dist.] 2014, pet.

                                          14
denied) (holding statutory provision was not meaningless because it might rarely

come into play; as long as there was any event that would trigger the need for

the provision, it was not meaningless).

      The mere fact that Article III, Paragraph D sets forth a residuary clause in

favor of Appellants, Rhoades’s heirs-at-law, does not detract from Rhoades’s

designation of contingent beneficiaries. See, e.g., Calloway v. Estate of Gasser,

558 S.W.2d 571, 576 (Tex. Civ. App.––Tyler 1977, writ ref’d n.r.e.) (holding that

when testator designated husband as primary beneficiary and others as

contingent beneficiaries in event husband predeceased her and couple then

divorced, contingent beneficiaries were entitled to take rather than residuary

beneficiaries––even though husband was not dead but instead was only

statutorily prohibited from taking––because by providing contingent beneficiaries,

will reflected testator’s intent that they take over residuary beneficiaries). Nor

can a residuary clause require or place “a construction on a previous clause in

order to create a residue” as Appellants and the Majority Opinion do here.     See

2 Construction and Interpretation of Wills § 90.      Appellants and the Majority

Opinion construe the provisions of Article III in order to create the existence of a

residuary clause under Paragraph D, claiming otherwise Paragraph D would be

superfluous, instead of looking to Rhoades’s intent that Kinler as a contingent

beneficiary takes Glen’s portion, regardless of whether that taking left anything

for the residuary beneficiaries. See Calloway, 558 S.W.2d at 576.



                                          15
                                  IV. CONCLUSION

      Because, as set forth above, applying the well-settled rules of will

construction to Rhoades’s will, Kinler established as a matter of law that in the

event that Glen predeceased Rhoades, Rhoades intended for Kinler to receive

“his portion”—which consisted of the real property and improvements thereon

comprising Rhoades’s residential homestead, Rhoades’s personal property, and

any other property owned by Rhoades at her death—I would hold that the trial

court did not err by granting Kinler’s motion for summary judgment on her

request for a declaration that Rhoades’s entire estate passed to her, and I would

overrule Appellants’ first issue. Similarly, I would hold that the trial court did not

err by denying Appellants’ cross-motion for summary judgment; I would overrule

Appellants’ second issue.     Accordingly, I would affirm the trial court’s order

granting the summary-judgment motion filed by Kinler and denying the cross-

motion for summary judgment filed by Appellants. Because the Majority Opinion

holds otherwise, I respectfully dissent.


                                                    /s/ Sue Walker
                                                    SUE WALKER
                                                    JUSTICE

DELIVERED: September 8, 2016




                                           16
APPENDIX A




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