                                   NO. 07-07-0390-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                 JANUARY 15, 2009
                          ______________________________

                                     DIRK MATHIS,

                                                        Appellant

                                             v.

                    WILLIAM A . CARTER, EXECUTOR OF THE
                  ESTATE OF HARRIET CARTER, DECEASED, AND
                   AS SUCCESSOR TRUSTEE OF THE HARRIET
                                CARTER TRUST,

                                                 Appellee
                        _________________________________

         FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

                NO. 93,885-2; HON. PAMELA C. SIRMON, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________

Before QUINN, C.J., CAMPBELL AND HANCOCK, JJ.

       Dirk Mathis (Mathis) appeals a declaratory judgment wherein the trial court

determined that the house located at 2217 Peach Tree Street (the residence) was

habitable and that the Harriet Carter Trust had no obligation to complete renovations to the

property. Mathis claims that the evidence is insufficient to support the findings that the

house in which he was granted the right to live was habitable and that the Harriet Carter
Trust was not required to complete the remodeling which the house was undergoing at the

time of Mrs. Carter’s death. We affirm.

                                                Background

        According to the record, Mathis had lived in the home located at 2217 Peach Tree

in Amarillo, Texas, prior to Harriet Carter’s death. The home was undergoing extensive

renovations which included a new addition at the time Mrs. Carter died and upon leaving

a will she created a trust wherein she granted Mathis a right to “live in” the home.1 Mrs.

Carter also established through the trust “income from the trust assets . . . shall pay taxes

and upkeep of [] the residence at 2217 Peach Tree, Amarillo, Texas, . . . .” At the hearing,

however, William Carter (William), as trustee, did not believe that “upkeep” included the

completion of the additions. Mathis thought differently.2 The trial court eventually sided

with William and found that Mathis could live in the house without William completing the

additions.

                                           Standard of Review

        When interpreting a will or trust, the rules of construction are well settled. Hurley

v. Moody Nat'l Bank of Galveston, 98 S.W.3d 307, 310 (Tex. App.–Houston [1st Dist.]

2003, no pet.). First, their construction is a question of law susceptible to de novo review.

Id. (citing Nowlin v. Frost Nat'l Bank, 908 S.W.2d 283, 286 (Tex. App.–Houston [1st Dist.]

1995, no writ)). Second, we construe both wills and trusts to ascertain the intent of the

maker. Id., citing Jewett v. Capital Nat'l Bank, 618 S.W.2d 109, 112 (Tex. Civ. App.–Waco


        1
         However, at the conclusion of the declaratory judgm ent hearing, Mathis represented to the court that
he no longer claim ed a life estate interest in the residence.

        2
            Renovations had been com pleted in the original portion of the residence.

                                                       2
1981, writ ref'd n.r.e.). Third, the intent of the maker must be ascertained from the

language used in the four corners of the instrument. See Shriner's Hosp. for Crippled

Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex.1980) (applying this concept to

construe a will). Fourth, the terms used must be harmonized to properly give effect to all

parts of the instrument. Hutton v. Methodist Home, 615 S.W.2d 289, 292 (Tex. Civ.

App.–Fort Worth 1981, writ ref'd n.r.e.). That is, the court should construe the instrument

to give effect to all provisions so that no provision is rendered meaningless. Myrick v.

Moody, 802 S.W.2d 735, 738 (Tex. App.–Houston [14th Dist.] 1990, writ denied). Fifth, if

the court can give a "certain or definite legal meaning or interpretation" to the words of an

instrument, the instrument is unambiguous. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.

1983).     Alternatively, if the meaning of the instrument is uncertain or "reasonably

susceptible to more than one meaning," the instrument is ambiguous. Id.

                                     Analysis

         As shown in the record, the house was undergoing renovations. That is, rooms

were being added to the existing home when Mrs. Carter died. Furthermore, in that portion

of the home undergoing construction, there were exposed electrical wires and pipes,

missing toilets and sinks, scattered construction materials, disconnected appliances,

missing walls, and an opening in the wall between the completed home and the addition.

However, other evidence illustrated that Mrs. Carter was living in the completed portion of

what we call the original home, that the addition of a door in the opening between the

original home and additions would seal out the dust and debris emanating from the portion

undergoing construction, and that the original home was in itself a house with functioning



                                             3
bedrooms, baths, kitchen, living room, utilities, running water, and sanitary facilities. Again,

Mrs. Carter was living in it immediately before her death. Moreover, nothing of record

suggests that the original home was either unsanitary or unsound.

       Next, Mathis was given the “right to live in the house” as long as he lived.

Furthermore, trust assets (save for some unrelated to the controversy before us) were to

be used to pay for “taxes and upkeep.” Yet, the trust instrument did not define the terms

“live” and “upkeep.” Nonetheless, we can see some interrelationship between the words.

For instance, it seems rather logical that before one can “live” in a house, it must be

habitable. Indeed, the plain meaning of the phrase “live in” encompasses the idea of

inhabiting a place. See MERRIAM -W EBSTER ’S COLLEGIATE DICTIONARY 601 (10th ed. 1995)

(defining inhabit). Furthermore, to be habitable, an abode must be safe, sanitary and

otherwise fit for humans to inhabit. Kamarath v. Bennett, 568 S.W.2d 658, 660-61

(Tex.1978) (talking about the warranty of habitability). As for the word “upkeep,” it

connotes the idea of “maintaining” something (as opposed to creating it). See MERRIAM -

W EBSTER ’S COLLEGIATE DICTIONARY 1375 (11th ed. 2003) (defining upkeep). Given this,

then the individual responsible for “upkeep” of the home, i.e. William, would be obligated

to undertake those measures needed to maintain the residence in a safe and sanitary

condition fit for human habitation. And, that Mrs. Carter (a frail, wealthy, elderly woman)

lived in the original home while rooms were being added to it is somewhat telling. That is

some evidence that the abode was capable of being inhabited in a safe and sanitary

manner at the time of her death. This seems especially so since the original home could

be separated from the purported dangers of the bare wiring, missing toilets, and debris



                                               4
present in the area undergoing development through the construction of a door. Nor can

we forget that while the addition may not be completed, the original home nonetheless had

running water and utilities, heat and air conditioning, a functioning sewer system,

bedrooms, living areas and a kitchen. So too was it furnished in many respects.

       Of similar import is the fact that Mathis was not granted a fee interest in the house

via the trust instrument. Rather, he simply had a “license” to use it when he was in

Amarillo, or so the trial court found.3 In other words, it was not his home but rather a place

where he could stay when in town. That express provision was not made in the trust

instrument or its amendments for completing the construction is also of import since the

amendment granting Mathis the right to live in the house was executed weeks before her

death, while the construction was ongoing, and though she knew she had terminal cancer.

       So, under the circumstances before us, we cannot say that the trial court erred in

relieving William of any obligation to complete the room additions as a part of his duty to

maintain the house so that Mathis could inhabit it. In so concluding, though, we express

no opinion on what measures, if any, the trustee must undertake to prevent the

uncompleted construction from inhibiting Mathis’ use of the existing home. That is left for

another day.

       Accordingly, the trial court’s judgment is affirmed.



                                                             Brian Quinn
                                                             Chief Justice




       3
           The record illustrates that Mathis resided in Dallas, not Am arillo.

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