                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                 NO. 2-08-445-CV


IN RE ESTATE OF
CONARD L. FLORENCE, DECEASED

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           FROM PROBATE COURT NO. 1 OF TARRANT COUNTY

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                                    OPINION

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                                  I. Introduction

      In two issues, Appellant Jarrell B. Ormand appeals the denial of his motion for

summary judgment and the granting of Appellees Mary Gene Ness, Carroll Edward

Florence, III, and Joseph S. Florence’s 1 cross-motion for summary judgment. W e

affirm and remand for further proceedings. 2



      1
         From this point on, we refer to Appellees as Mary, Edward, and Joseph in
their individual capacities and as “the Heirs” in their collective capacity.
      2
        This is an interlocutory appeal of a summary judgment and cross-summary
judgment in a probate case. See De Ayala v. Mackie, 193 S.W .3d 575, 578 (Tex.
2006); Crowson v. Wakeham, 897 S.W .2d 779, 781 (Tex. 1995).
                          II. Factual and Procedural History

      The genesis of this appeal is the construction of the language of a will and the

treatment of certain estate property by the decedent’s widow.

Conard’s Will:

      On July 28, 1981, Conard Florence executed a will (“Conard’s W ill”). He died

almost a year later, survived by his wife Eleanor Bankhead Florence. On August 16,

1982, Conard’s W ill was admitted to probate. Pursuant to the will, the probate court

appointed Eleanor as executor of Conard’s estate.

      Article II of Conard’s W ill bequeathed to Eleanor all of his interests in the

couple’s residence, club memberships, insurance policies, all other “tangible

property,” 3 and a pecuniary gift. Article III provided in pertinent part:

            I give, devise and bequeath all of the rest, residue and remainder
      of my Estate, real, personal and mixed, of whatever kind and character
      and wheresoever situated, including the balance of my separate
      property and my interest in the community estate of my wife, Eleanor
      Bankhead Florence, and myself, to Eleanor Bankhead Florence,
      Trustee, in Trust for the uses and purposes on the terms and conditions
      hereinafter set forth:

      ....

             Upon the death of my wife, the remaining corpus and income
      shall be distributed to or for the benefit of such person or persons, in
      such amounts and proportions and upon such terms, trusts, conditions
      and limitations as my said wife shall appoint by a W ill, which W ill
      specifically refers to the power herein given her; provided, however,
      that my wife shall have no power to appoint the corpus of this Trust or


      3
           It is the term “tangible property” that is the subject of this appeal.

                                             2
      any part thereof to herself or her estate, or to her creditors, or to the
      creditors of her estate. . . .

      Conard’s W ill also directed that income from the testamentary trust (“Trust”)

be paid to Eleanor during her lifetime. Finally, Conard’s W ill provided that, upon

Eleanor’s death, if she had not exercised her special power of appointment over the

Trust assets, the remaining Trust corpus and income would be divided into three

shares of equal value, one for each of Conard’s then-living niece and

nephews—Mary, Edward, and Joseph.

Eleanor’s Will:

      On May 26, 2004, Eleanor died and her will (“Eleanor’s W ill”), executed June

8, 2001, was admitted to probate. Eleanor’s W ill designated her nephew Ormand

as independent executor of her estate and it left her estate to Ormand and to

Conard’s niece and nephews—Mary, Edward, and Joseph. Eleanor did not exercise

her power to appoint other persons to receive the corpus of the Trust.

Conard’s Estate and Trust:

      Upon Eleanor’s death, the probate court appointed Joseph to be the

successor independent executor of Conard’s open estate and the Heirs to be

successor co-trustees of the Trust.

      In August 2004, Ormand, acting as executor of Eleanor’s W ill, met with the

Heirs to discuss Conard’s estate. During the meeting, Ormand suggested that the

term “tangible property” in Article II of Conard’s W ill included personal and real



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property. The Heirs, on the other hand, asserted that Conard intended for “tangible

property” to mean “tangible personal property,” thereby excluding real property. 4

The Heirs’ Declaratory Action:

      Ultimately, the Heirs filed two lawsuits against Ormand, one related to

Conard’s estate wherein they sought declaratory relief regarding the meaning and

intent of certain provisions in Conard’s W ill and the other related to Eleanor’s estate

wherein they alleged that Eleanor breached her fiduciary duties and committed

negligence and gross negligence. The two lawsuits were later consolidated and

merged into one suit.

      After consolidation, the Heirs filed an amended, consolidated petition seeking

a declaratory judgment regarding the interpretation of the term “tangible property”

as used in Article II of Conard’s W ill. Apart from the aforementioned pleadings and

motions asking the probate court to interpret and declare the meaning of the term

“tangible property,” subsequent motions were filed questioning whether the statute

of limitations barred the parties from asserting their respective positions regarding

the meaning of “tangible property.”




      4
         The import of the parties’ positions is that if “tangible property” includes
realty as opined by Ormand, then that realty was inherited by Eleanor and upon her
death was then inherited by the Heirs and Ormand. On the other hand, if “tangible
property” does not include realty as opined by the Heirs, then that realty was placed
into the Trust and upon Eleanor’s death, it would pass to the Heirs, excluding
Ormand.

                                           4
Ormand’s Motion for Summary Judgment:

        On September 4, 2008, Ormand filed a motion for summary judgment on the

ground that the four-year limitations period on the Heirs’ will construction claim

began to run when Conard’s W ill was admitted to probate in 1982. Ormand argued

that, because the Heirs fell under the category of “interested persons” in Conard’s

estate, they were deemed to have constructive knowledge of the contents of

Conard’s W ill and therefore should have raised their challenges within four years

after Conard’s Will was admitted for probate—that is, some time before August 16,

1986.

The Heirs’ Response and Cross-Motion for Summary Judgment:

        In their response, the Heirs asserted that a will beneficiary’s declaratory action

does not begin to accrue until the executor does some “overt act” showing that he

is not going to abide by the will’s terms as construed by the beneficiary.

        The Heirs filed a cross-motion for summary judgment on two grounds. First,

the Heirs asked for a no evidence summary judgment on the ground that Ormand

cited no summary judgment evidence of any overt act occurring more than four years

prior to their filing a declaratory action that would have notified them “that anyone,

let alone [Ormand] or Eleanor, construed Conard’s [W ]ill differently than [the Heirs]

do now.” Second, the Heirs asked for a traditional summary judgment on the ground

that Ormand was barred from asserting an interpretation of Conard’s W ill different




                                            5
from what Eleanor had employed in dealing with Conard’s estate and Trust over the

twenty-one-year time period between Conard’s death and her own death.

      The Heirs attached to their motion Eleanor’s 1983 estate tax return, in which

Eleanor claimed that at least $472,693 in assets from Conard’s estate had passed

into the Trust. 5 They also attached a letter that Eleanor had written to her lawyer

acknowledging that the Trust should be funded and asking her lawyer to take the

steps necessary to complete that process. Their motion alleged that:

      . . . as Executrix and Trustee, Eleanor (1) maintained a checking
      account in the Estate’s name; (2) executed oil, gas, and mineral leases
      regarding the properties at issue in the name of the Estate and [] Trust;
      (3) executed division orders regarding the properties at issue in the
      name of the Estate and [] Trust; (4) directed oil, gas and mineral
      production companies to distribute royalties, which were generated
      from Conard’s family legacy real property, to the Estate and [] Trust; (5)
      deposited those royalties in the Estate checking account; and (6) used
      the Estate checking account to pay for, among other expenses, the
      taxes incurred by the [] Trust on the royalties generated from Conard’s
      family legacy real property.6

      Following a hearing on these motions, the probate court denied Ormand’s

motion for summary judgment on statute of limitations and granted the Heirs’ cross-

motion for summary judgment. This appeal followed.




      5
        The Heirs asserted that the only possible explanation for $472,693 in
assets passing into the Trust was that a portion of Conard’s real property had
passed into the Trust.
      6
         In support of these contentions, the Heirs attached bank account
statements; tax statements; tax receipts; and oil, gas, and mineral lease and division
orders.

                                          6
                             III. Statute of Limitations

      In two issues, Ormand argues that the trial court erred by denying his motion

for summary judgment and by granting the Heirs’ cross-motion for summary

judgment. Although both parties agree that a four-year statute of limitations applies

in this case, they do not agree on when that limitations period began to run, or when

it accrued.   See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 2008)

(proscribing a residual limitations period of four years).

A. Standard of Review

      W hen 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.            Valence

Operating Co. v. Dorsett, 164 S.W .3d 656, 661 (Tex. 2005).

      1. Traditional Summary Judgment

      A movant is entitled to summary judgment on an affirmative defense if the

movant conclusively proves all the elements of the affirmative defense.

Rhone-Poulenc, Inc. v. Steel, 997 S.W .2d 217, 223 (Tex. 1999); see Tex. R. Civ. P.

166a(b), (c). To accomplish this, the movant must present summary judgment

evidence that establishes each element of the affirmative defense as a matter of law.

Ryland Group, Inc. v. Hood, 924 S.W .2d 120, 121 (Tex. 1996). W hen reviewing a

summary judgment, we take as true all evidence favorable to the nonmovant, and

we indulge every reasonable inference and resolve any doubts in the nonmovant’s

                                          7
favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794,

798 (Tex. 2004).

      2. No-Evidence Summary Judgment

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

there is no evidence to support an essential element of the nonmovant’s claim or

defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements

for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310

(Tex. 2009). The trial court must grant the motion unless the nonmovant produces

summary judgment evidence that raises a genuine issue of material fact. See Tex.

R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W .3d 425, 426 (Tex. 2008).

B. Ormand’s Motion for Summary Judgment

      In his first issue, Ormand argues that the trial court erred by denying his

motion for summary judgment. Ormand contends that the Heirs, as interested

persons, are charged with notice of the contents of the probate records, including

Conard’s W ill. See Tex. Prob. Code Ann. § 3 (Vernon Supp. 2009); Mooney v.

Harlin, 622 S.W .2d 83, 85 (Tex. 1981). Thus, Ormand asserts that because the

term “tangible property” has consistently been interpreted to include both real and

personal property, 7 the Heirs had four years from the date of Conard’s W ill being


      7
         See Wheeler v. Box, 671 S.W .2d 75, 78 (Tex. App.—Dallas 1984, no writ)
(finding that tangible property is commonly understood to be property that is capable

                                          8
admitted for probate in which to bring their declaratory action claiming that Conard

intended for the term “tangible property” to mean something different from its

accepted legal meaning. W e disagree.

      The Uniform Declaratory Judgments Act (“UDJA”) is intended “to settle and

to afford relief from uncertainty and insecurity with respect to rights . . . and it is to

be liberally construed and administered.” Tex. Civ. Prac. & Rem. Code Ann. §

37.002 (Vernon 2008); accord Cobb v. Harrington, 144 Tex. 360, 367, 190 S.W .2d

709, 713 (1945); Puretex Lemon Juice, Inc. v. Cal. Prods., Inc., 324 S.W .2d 449,

453 (Tex. Civ. App—San Antonio 1959), aff’d, 160 Tex. 586, 334 S.W .2d 780

(1960). The UDJA provides that “[a] person interested under a . . . will . . . may have

determined any question of construction or validity arising under the instrument . .

. and obtain a declaration of rights, status, or other legal relations thereunder.” Tex.

Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon 2008). Heirs at law and devisees

under a will are interested persons with standing to contest a will and they may do

so in a declaratory judgment action. See Tex. Prob. Code Ann. § 3(r); Foster v.

Foster, 884 S.W .2d 497, 501 (Tex. App.—Dallas 1993, no writ); see also Hartman

v. Solbrig, 12 S.W .3d 587, 594 n.7 (Tex. App.—San Antonio 2000, pet. denied);

Harkins v. Crews, 907 S.W .2d 51, 55 (Tex. App.—San Antonio 1995, writ denied).


of being handled or touched and includes both real and personal property); Cont’l
Homes Co. v. Hilltown Prop. Owners Ass’n, Inc., 529 S.W .2d 293, 296 (Tex. Civ.
App.—Fort W orth 1975, no writ) (stating that tangible property includes both real and
personal property); Erwin v. Steele, 228 S.W .2d 882, 885 (Tex. Civ. App.—Dallas
1950, writ ref’d n.r.e.) (construing a will).

                                            9
      Although we agree with Ormand that the Heirs were interested persons who

had standing to bring a declaratory judgment action at the time Conard’s W ill was

admitted to probate, we do not agree with Ormand’s contention that their claim arose

and began to accrue at that time. The only evidence presented showed that over

the twenty plus years between Conard’s death and Eleanor’s death, Eleanor treated

the term “tangible property” as if it meant “tangible personal property.” And it was

not until Ormand became the executor of Eleanor’s estate and asserted a different

interpretation that a conflict arose between the Heirs and Eleanor—or rather,

Eleanor’s estate. Thus, we agree with the Heirs that the facts of this appeal are

analogous to the facts in Murphy v. Honeycutt, 199 S.W .2d 298, 299 (Tex. Civ.

App.—Texarkana 1946, writ ref’d), and in Hornbeck v. Moran, No. 05-96-1127-CV,

1998 W L 315624, at *1 (Tex. App.—Dallas June 17, 1998, pet. denied) (not

designated for publication).

      In Murphy, the heirs filed a declaratory judgment action thirteen years after the

decedent’s will had been admitted to probate, arguing that the sale of certain

property by the decedent’s widow was void because she only had a life estate in the

property, making them the true owners of the property. 199 S.W .2d at 298. The

purchaser of the property, however, argued that the heirs’ claims were barred by the

four-year statute of limitations. Id. The trial court and the court of appeals sided with

the heirs, holding that their claim had not begun to accrue until the widow deeded




                                           10
the property to the purchaser, thereby demonstrating that she was not going to abide

by the heirs’ construction of the will. Id. at 299.

      Likewise, in Hornbeck, the decedent’s children filed a declaratory judgment

action against the decedent’s step-children fifteen years after the decedent’s will had

been admitted to probate. 1998 W L 315624 at *1. The children asserted that the

decedent’s wife had received only a life estate and not a fee simple interest in

certain property and that they were the remaindermen of that property. Id. The

decedent’s wife, however, had left the property in question to the step-children, and

the step-children argued that limitations barred the declaratory action. Id. The trial

court and the court of appeals sided with the children, holding that the claim was not

barred by limitations because the accrual date occurred when the step-children

refused to acknowledge the remaindermen’s interest in the estate based on the

remaindermen’s interpretation of the decedent’s will. Id. at *4.

      Ormand argues that Murphy and Hornbeck are both distinguishable because

the plaintiffs’ causes of action in both cases arose out of an attempt to enforce the

plain language of the will, while the Heirs’ cause of action arises out of an attempt

to rewrite the plain language of the will. Ormand’s argument, however, is based on

the assumption that “tangible property” does not and cannot mean “tangible personal

property” as the Heirs assert. To support his argument, Ormand isolates the term

“tangible property” in Conard’s W ill and asks this court to apply the generally

accepted meaning—that is, that tangible property means personal and real property.


                                          11
However, the proper standard in construing a will is to focus on the testator’s intent.

See San Antonio Area Found. v. Lang, 35 S.W .3d 636, 639 (Tex. 2000). The

testator’s intent is ascertained by looking at the language found within the four

corners of the will. Id. If possible, all parts of the will must be harmonized, and every

sentence, clause, and word must be considered in ascertaining the testator’s intent.

See Steger v. Muenster Drilling Co., Inc., 134 S.W .3d 359, 372 (Tex. App.—Fort

W orth 2003, pet. denied).

      Ormand’s argument leads us down a path that requires us to address the

merits of the case. Because this is not an appeal on the merits but rather on

limitations, we decline to go down that road. W e hold that, as a matter of law, the

Heirs’ declaratory judgment action did not begin to accrue until Ormand asserted his

interpretation of “tangible property,” thereby demonstrating that he was not going to

abide by the Heirs’ construction of Conard’s W ill. See Murphy, 199 S.W .2d at 299;

Hornbeck, 1998 W L 315624, at *4. W e further hold that the trial court did not err by

denying Ormand’s motion for summary judgment on statute of limitations.

Accordingly, we overrule Ormand’s first issue.

C. The Heirs’ Cross-Motion for Summary Judgment

      In his second issue, Ormand contends that the trial court erred by granting the

Heirs’ cross-motion for summary judgment because (1) the Heirs’ proposed accrual

test is incorrect and, therefore, the Heirs’ no-evidence argument fails and (2)




                                           12
Ormand’s limitations defense is not “in substance” a declaratory action that is barred

by limitations.

         W hen a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i). Ford Motor Co. v. Ridgway, 135 S.W .3d 598, 600 (Tex. 2004). If the

appellant failed to produce more than a scintilla of evidence under that burden, then

there is no need to analyze whether the appellees’ summary judgment proof

satisfied the less stringent rule 166a(c) burden. Id.

         In the first part of the Heirs’ cross-motion for summary judgment, they

asserted that the trial court should strike Ormand’s limitations defense because there

is no evidence of any overt act occurring more than four years prior to their filing a

declaratory action. Because we addressed this argument under Ormand’s first

issue, and concluded that “overt act” is the proper accrual test and that it was not

until Ormand became the executor of Eleanor’s estate and asserted a different

interpretation that a conflict arose between the Heirs and Eleanor—or rather,

Eleanor’s estate, we need not address it again. See Tex. R. App. P. 47.1. W e hold,

therefore, that the trial court did not err by granting the Heirs’ cross-motion for

summary judgment. Accordingly, we overrule this portion of Ormand’s second issue,

which is dispositive, and do not reach the remaining portion of Ormand’s second

issue.




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                                  IV. Conclusion

      Having overruled Ormand’s first issue, we affirm the portion of the trial court’s

October 22, 2008 order denying Ormand’s motion for summary judgment—thus, the

Heirs’ tangible personal property claims are not barred by the statute of limitations.

Having overruled the dispositive portion of Ormand’s second issue, we affirm the

portion of the trial court’s October 22, 2008 order granting the Heirs’ cross-motion

for summary judgment.       W e remand this case to the trial court for further

proceedings.



                                              BOB MCCOY
                                              JUSTICE


PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

DELIVERED: March 11, 2010




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