                                   NUMBER 13-10-541-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

               IN THE INTEREST OF MARY WILSON, DECEASED


                              On appeal from County Court
                               of Jefferson County, Texas.


                             MEMORANDUM OPINION
                       Before Justices Vela, Perkes, and Hill1
                       Memorandum Opinion by Justice Hill
        Deborah Hargraves Thomas appeals from two orders of the Probate Court of

Jefferson County, one order dated November 18, 2009, which denied probate of the April


        1
         Retired Second Court of Appeals Justice John Hill assigned to this Court by the Chief Justice of
the Supreme Court of Texas pursuant to the government code. See TEX. GOV’T CODE ANN. § 74.003 (West
2005).
26, 2005 will of Mary Wilson, deceased, and an order dated June 6, 2010, denying

probate to the June 1, 1995 will of Mary Wilson.2 She contends in three issues that: (1)

the trial court erred when, by order dated November 18, 2009, it denied her application to

probate the April 26, 2005 will, because the decedent's April 26, 2005 will was executed

with all of the requisites to be a valid will; (2) alternatively, the trial court erred when, by

order dated June 6, 2010, it ruled that the June 1, 1995 will was revoked by the April 26,

2005 will; and (3) the trial court erred by entering the judgment declaring heirship dated

November 17, 2009, and the November 17, 2009 order granting independent

administration and authorizing letters of independent administration pursuant to section

145(e) of the Texas Probate Code, because Mary B. Wilson, the decedent, did not die

intestate. See TEX. PROB. CODE ANN. § 145(e) (West 2003). We reverse and remand

for further proceedings.

       Thomas contends in issue one that the trial court erred when, by order dated

November 18, 2009, it denied her application to probate the April 26, 2005 will of Mary

Wilson. The will provides, in pertinent part, as follows:

              That I, MARY WILSON, of Jefferson County, Texas, being of sound
       and disposing mind and memory, realizing the uncertainty of life and the
       certainty of death, and desiring to make provision for the disposition of such
       property as I may own at my death, do hereby make and publish this last will
       and testament, hereby revoking any will or wills I may have made
       heretofore.



       2
          Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is
before us on transfer from the Ninth Court of Appeals in Beaumont, Texas. See TEX. GOV'T. CODE ANN. §
73.001 (West 2005).

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            FIRST:        I direct that my body be burned in a Christian-like
       manner consistent with my station and condition in life.

             SECOND: I direct that my hereinafter named Executor pay all of
       my just debts as soon after my death as is convenient.

               THIRD:        I give to my daughter, Catherine Wilson, my
       homestead to be used as a home. She will be responsible for repairs and
       maintenance of homestead. In the event, that the homestead not be
       desired to live in, she shall make the decision as to the disposition of the
       homestead. I also leave to her my 150 acre estate in Louisiana with the
       condition that the proceeds from the mineral rights be set up as described in
       point five[.]

             FOURTH:       In the event of my grandson, James Charles
       Alderson, any that would be deemed his portion, is given to his son, James
       Colton Alderson[.]

              FIFTH:       Proceeds made from mineral rights on the 150 acre
       estate in Louisiana are to be put in a trust/savings for my great-grandson,
       James Colton Alderson, until he reaches the age of 18[.] If said funds
       are requested before Colton is age 18, it may be release[d] if Cathy Wilson,
       my daughter, and Debbie Thomas, Executor are in agreement to release
       said funds. If he should decease [sic], these funds are to be donated to the
       Cystic Fibrosis Research[.]

            SIXTH:       In the event of my grandson, Rance Howard Wilson,
       and my great grandson, Gavin Derrick Wilson, they will be given an
       amount deemed fair by my daughter, Cathy Wilson.

              SEVENTH: I hereby constitute and appoint Deborah Hargraves
       Thomas, Executor of this my last will and testament, and direct that no
       bond be required of her as such, and that no action be taken by the Probate
       Court in the administration of my estate, other than to probate this will and
       cause an inventory, appraisement[,] and list of claims to be filed.

(bold and italics as in original).

       The April 26, 2005 will meets the requisites of a valid will as set forth in section 59

of the Texas Probate Code because it is in writing, signed by Mary Wilson, the testatrix,

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and witnessed by two witnesses above the age of fourteen. See TEX. PROB. CODE ANN. §

59 (West 2003). Angela Jean Danforth, one of the witnesses, testified as to Mary

Wilson's execution of the will. In denying probate, the trial court found the will to be

invalid, stating that the testator's true intent could not be ascertained from the will.

Inasmuch as the will contained the requisites set forth in section 59 of the Texas Probate

Court, and because we find that the testator's true intent can reasonably be ascertained in

whole or in part, we hold that the trial court erred by finding the April 26, 2005 will to be

invalid. See id.

       Catherine Wilson, the appellee and daughter of the testatrix, contends that the trial

court did not err in denying probate to the April 26, 2005 will, even though it is a valid will,

because when provisions of the will that are either meaningless or violate the rule of

perpetuities are disregarded, she is the only beneficiary under the will and therefore,

under the family settlement doctrine, would have the discretion to proceed under an

independent administration, rather than probating the will.

       We will first consider the appellee's argument that the provision in the will providing

that proceeds of the mineral rights from the testator's 150-acre estate in Louisiana be held

in a trust for the benefit of the testator's great-grandson, James Colton Alderson, until he

reaches the age of eighteen, is in violation of the rule against perpetuities. The rule

against perpetuities renders invalid any provision that attempts to create any estate or

future interest which by possibility may not become vested within a life or lives in being at



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the time of the testator's death and twenty-one years thereafter, and, when necessary,

the period of gestation. Henderson v. Moore, 190 S.W.2d 800, 801 (Tex. 1945).

       The April 26, 2005 will bequeaths proceeds from mineral rights to appellee's

150-acre estate in Louisiana to a trust/savings account for the benefit of James Colton

Alderson, the testator's great-grandson, to be held until he is eighteen years of age. The

will further provides that funds may be withdrawn before Alderson reaches eighteen if

both the appellant and appellee agree and that, should Alderson die, the funds will go to

"the Cystic Fibrosis Research." Because this bequest would become vested, if it ever

vested at all, within a life in being plus twenty-one years, it is not rendered invalid by the

rule against perpetuities. See id. Contending that this provision is rendered invalid by

the rule against perpetuities, counsel for appellee, in oral argument, asserted that there

was a possibility that the provision would, in fact, not vest within a life in being plus

twenty-one years. We reject this contention because the provision could reasonably be

interpreted in such a way that there would not be a possibility of the bequest vesting

beyond a life in being plus twenty-one years.

       James Colton Alderson is the beneficiary in another provision of the will in which

the testator bequeathed to him any portion of the estate deemed to belong to his father.

She also bequeathed to her grandson, Rance Howard Wilson, and her great-grandson,

Gavin Derrick Wilson, an amount deemed fair by her daughter, the appellee. While

these bequests are inartfully worded, we believe these provisions are open to the

reasonable interpretation that, should they be living at the time of her death, these named

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individuals are to receive the bequests noted. Given that the appellee's position is that

the trial court did not err because she, as the sole beneficiary under the will, had the

option to not probate it even though it was a valid will, her position must fail in view of the

fact that she is not the sole beneficiary.

       The appellee testified at the hearing on whether the April 26, 2005 will should be

probated that there were no proceeds from the mineral rights in the Louisiana property,

while the ad litem attorney for James Colton Alderson stated that the appellant had told

her that there were, in fact, proceeds. Counsel for the appellee suggested to the trial

court that the absence of proceeds at the time of the testator's death would result in the

bequest being in violation of the rule against perpetuities. However, inasmuch as the will

could be reasonably interpreted in such a way that the bequest would under no

circumstances vest beyond the eighteenth birthday of James Colton Alderson, a period

which would not fall outside the amount of time referred to in the rule, we fail to see how it

is in violation of the rule against perpetuities. We sustain issue one.

       The appellant asserts in issue two that the trial court erred when it ruled that the

April 26, 2005 will revoked the testator's prior will of June 21, 1995. This is an alternative

issue that the appellant presents in the event we overruled issue one. Inasmuch as we

have sustained issue one, we need not consider issue two.

       The appellant urges in issue three that, in view of the fact that Mary Wilson did not

die intestate, the trial court erred by entering the Judgment Declaring Heirship and the

Order Granting Independent Administration and Authorizing Letter of Independent

                                              6
Administration. In the instant case, the April 26, 2005 will did not contain a residuary

clause and did not dispose of the decedent’s entire estate.

       We note that the purpose of a residuary clause is to make a complete testamentary

disposition of all of the testator's estate so that there is nothing left to pass as intestate

property. See Grisham v. Lawrence, 298 S.W.3d 826, 832 (Tex. App.—Tyler 2009, no

pet.); Holliday v. Smith, 458 S.W.2d 106, 111–12 (Tex. Civ. App.—Corpus Christi 1970,

writ ref'd n.r.e.). There is a strong presumption against partial intestacy when one has

executed a will, but the presumption must yield when the testator, through design or

otherwise, has failed to dispose of his entire estate. See e.g., Haile v. Holtzclaw, 414

S.W.2d 916, 922 (Tex. 1967); Huffman v. Huffman, 161 Tex. 267, 339 S.W.2d 885

(1960); Harrington v. Walker, 829 S.W.2d 935, 937 (Tex. App.—Fort Worth 1992, writ

denied); Renaud v. Renaud, 707 S.W.2d 750, 751 (Tex. App.—Fort Worth 1986, writ ref'd

n.r.e.). When any real or personal property has been omitted from a will, the court in

which probate proceedings are pending is authorized to determine the decedent’s heirs

and their respective shares and interests in such property. See TEX. PROB. CODE ANN. §

48(a) (West Supp. 2010).

       Accordingly, because the April 26, 2005 will did not dispose of the decedent’s

entire estate and did not contain a residuary clause, the trial court was authorized to

determine the decedent’s heirs and their respective shares and interests in the estate

property that was not disposed of in the will. See id. Thus, we must overrule appellant’s

third issue, in part.   However, the Judgment Declaring Heirship contains language

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purporting to distribute some of the property that was specifically devised in the April 26,

2005 will insofar as it grants Catherine Wilson ―100%‖ of the decedent’s real and personal

property. Accordingly, we strike this language from the Judgment Declaring Heirship.

Moreover, we have already determined that the April 26, 2005 will was valid and the

administration of the decedent’s estate should proceed under that will, and thus we

reverse the trial court’s Order Granting Independent Administration and Authorizing

Letter of Independent Administration insofar as it conflicts with the provisions of the

decedent’s April 26, 2005 will and the administration of the estate as dictated in that will.

Appellant’s third issue is overruled in part and sustained in part.

       We reverse the order of the trial court denying probate to the April 26, 2005 will and

remand this cause to the trial court for further proceedings.



                                                  JOHN G. HILL
                                                  Justice

Delivered and filed the
31st day of August, 2011.




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