

Opinion issued
June 30, 2011

In
The
Court of
Appeals
For
The
First District
of Texas
————————————
NO. 01-10-00118-CV
———————————
BETTY FRANCIS LACIS, Appellant
V.
JOHN KARL LACIS,
JR., JASON WESLEY LACIS, MIRANDA LYNN SLATE, AND CARISSA MUEK FERGUSON, Appellees

 

 
On Appeal from the County
Court at Law No. 4 and Probate Court
Brazoria County, Texas

Trial Court Cause No. PRO30105
 

 
 
O P I N I O N
          This
appeal arises from a declaratory judgment action concerning a dispute over the
Last Will and Testament of the late Uldis Lacis.  In one issue, Uldis’s wife, appellant, Betty
Francis Lacis, challenges the trial court’s judgment declaring that specific
bequests made in Uldis’s will to his two children did not lapse upon the
children’s deaths but passed to his grandchildren, appellees, John Karl Lacis,
Jr., Jason Wesley Lacis, Miranda Lynn Slate, and Carissa Mueck Ferguson,
pursuant to Texas Probate Code section 68, commonly known as the Anti-Lapse
Statute.  See Tex. Prob. Code Ann. §
68 (Vernon 2003).  The dispositive issue that we must determine
is whether Uldis’s will provides that the Anti-Lapse Statute does not apply to
the specific bequests at issue.  Because
we conclude that the will so indicates, we reverse and remand.  
Background
          Uldis Lacis signed his Last
Will and Testament (“the Will”) on November 16, 1993.  The Will reflects that Uldis was married to
Betty Francis Lacis and that he had two children from a previous marriage: a
son, John K. Lacis, and a daughter, Diane B. Lacis Mueck.  The Will further reflects that Uldis had four
grandchildren: Jason Lacis, John K. Lacis, Jr., Miranda Slate, and Carissa
Mueck.  The Will names Betty, Uldis’s
children, his grandchildren, and his mother, Marta Lacis, as beneficiaries of
Uldis’s estate.  Uldis appointed Betty as
the independent executrix of his will and estate and named two alternate
independent executors should Betty be unwilling or unable to serve.  
          Uldis
died testate on November 27, 2007 at the age of 76.  He was predeceased by his mother, Marta
Lacis, his son, John K. Lacis, and his daughter, Diane B. Lacis Mueck.  He was survived by his wife, Betty, and his
four grandchildren.  
          After
the Will was admitted to probate, a dispute arose between Betty and Uldis’s
grandchildren regarding certain provisions of the Will.  The relevant provisions of the Will include
the following:
ARTICLE III
SPECIFIC BEQUEST—TANGIBLE PERSONAL PROPERTY
 
I make the following specific bequests:
 
3.1     I give to my
son, JOHN K. LACIS, any pickup truck or car that I use as my personal vehicle.
 
3.2     I give to my
wife any family car or cars that we use generally for family purposes.
 
3.3     I give to
JOHN K. LACIS all of my tools except for the equipment or tools used for
household and gardening.  JOHN K. LACIS
may utilize my workshop, but may not reside in my home or workshop while such
is the residence of my wife and/or my mother, MARTA A. LACIS, without their
express permission.
 
3.4     I give the
remainder of my tangible personal property to my family to be distributed among
my family members as agreed by my wife, BETTY F. LACIS, and mother, MARTA A.
LACIS.
 
. . . .
ARTICLE V
SPECIFIC DEVISE
REAL PROPERTY
 
5.1     I hereby
specifically devise a life estate to my wife and my mother in the property that
I use as my principal residence, located at 1918 Kings Lane, Alvin, Brazoria
County, Texas (“the real property”). 
Both my wife and my mother shall reside in and use the home and real
property as life tenants until the death of the survivor of them. Upon the
death of the survivor of my wife and my mother, the real property shall be
distributed in accordance with paragraph 5.2 below.
 
5.2     Upon the
death of my wife and my mother, the home and real property described in
paragraph 5.1 herein shall be distributed to my son, JOHN K. LACIS, and my
daughter, DIANE B. LACIS MUECK, in the percentages of ownership as set forth
below:
 
(a) I give to my son, JOHN K. LACIS, seventy percent
(70%) ownership of the real property.
 
(b) I give to my daughter, DIANE B. LACIS MUECK, thirty
percent (30%) ownership of the real property.
 
Should my son and daughter decide to sell the real
property, each shall receive the same percentage of sale proceeds as is
reflected by their respective percentage of ownership.
 
ARTICLE VI
RESIDUARY ESTATE
 
6.1     Residuary
Estate—Wife
Surviving: Subject to the definition of Residuary Estate in paragraph 9.3
herein, if my wife survives me, I give to her all the rest and residue of my property
(residuary estate) to be hers absolutely and in fee simple.
 
. . . .
 
ARTICLE IX
DEFINITIONS
 
9.3     Residuary
Estate: Except as stated herein, the term “residuary estate” means all property
in which I may have any interest (including lapsed gifts) which is not disposed
of other than by Article VI entitled “Residuary Estate”. . . . ”  
 
The dispute between Betty
and Uldis’s grandchildren, appellees herein, centered on the disposition of the
specific gifts that Uldis made to his son and daughter in Articles III and V of
the Will.  Uldis’s grandchildren pointed
out that pursuant to the Anti-Lapse Statute, a devise or bequest made to a
descendant of the testator does not lapse when the beneficiary predeceases the
testator but instead passes to the surviving descendants of the devisee or
legatee.[1]  On this basis, the grandchildren asserted
that they were entitled, respectively, to the gifts made in the Will to their
deceased parent.  
In contrast, Betty asserted
that the gifts made to Uldis’s son and daughter in Articles III and V had
lapsed when his chidren predeceased Uldis. 
She asserted that the lapsed gifts had fallen into the residuary estate
pursuant to Paragraphs 6.1 and 9.3 of the Will. 
Specifically, Betty pointed to the language of Paragraph 9.3 indicating
that the residuary estate at the time of Uldis’s death was comprised of all
property in which he “may have any interest (including lapsed gifts). . . .” 
(Emphasis added.)  She intimated
that this language indicated Uldis’s intention that any legacy or devise that
had lapsed became a part of the residuary estate.  She argued that this language precluded the
application of the Anti-Lapse statute to the gifts given Uldis’s children in
Articles III and V.  Because she is the
sole beneficiary of the residuary estate, Betty asserted that she is entitled
to the lapsed gifts granted to Uldis’s children in those articles. 
          Betty
filed a petition for declaratory judgment seeking a determination by the trial
court regarding who was entitled to the property at issue.  Betty maintained that the specific bequests
and devises to Uldis’s children found in Articles III and V of the Will had lapsed
and passed to her pursuant to the residuary clause found in Article VI of the
Will. 
          The
trial court conducted a trial on the petition for declaratory judgment.  At trial, the grandchildren’s attorney informed
the court that the parties had “agreed on the facts” and characterized the
dispute as a “will construction case.”  
After the trial, the trial
court signed a judgment in favor of the grandchildren.  In the judgment, the trial court declared
that “the specific bequests in Articles III and V of the last will and
testament of [Testator] Uldis Lacis . . . made to deceased beneficiaries, John
Karl Lacis and Diane Beth Lacis Mueck, did not lapse, and as required under the
provisions of Texas Probate Code Section 68(a) those specific bequests pass to
the lineal descendents of the deceased beneficiaries named above, as substitute
takers under the Testator’s will.”  The
judgment further provides that “John Karl Lacis, Jr., Jason Lacis, and Miranda
Slate, as lineal descendants of the deceased beneficiary, John Karl Lacis, are
entitled, under Paragraph 3.1 of the last will and testament of the decedent, to
share equally in any pickup truck or car that the Testator used as his personal
vehicle.”  The judgment also states, “John
Karl Lacis, Jr., Jason Lacis, and Miranda Slate, as lineal descendants of the
deceased beneficiary, John Karl Lacis, are entitled, under Paragraph 3.3 of the
last will and testament of the decedent, to share equally in any tools except
for the equipment or tools used for household and gardening.”  Lastly, the judgment provides that the three
children of Uldis’s son, Karl, as his lineal descendant, would share equally in
70 percent ownership of the real property identified in Paragraph 5.2(a) of the
Will and that the child of Uldis’s daughter, Diane, is entitled to 30 percent
ownership of the real property pursuant to Paragraph 5.2(a) of the Will.  
In support of its judgment,
the trial court filed findings of fact and conclusions of law.  In the filing, the trial court indicated that
the case had been tried based on an agreed statement of facts pursuant to Texas
Rule of Civil Procedure 263.  In one “finding,”
the trial court stated, “The parties consented to this Court entering judgment
in this case on an agreed statement of facts.” 
Among the conclusions of law
supporting the trial court’s judgment were the following:
3.       A
testamentary gift for an individual beneficiary who either predeceased a testator,
or who is deemed to have predeceased the testator due to § 47 of the Probate
Code, is said to have “lapsed.”
 
4.       Further, unless the will
provides differently, the subject property of lapsed specific, general or
demonstrative gifts may pass under the residuary clause of a testator’s will,
if any, or if the lapsed gift is the residuary gift itself (or if there is no residuary
clause), the lapsed gift may pass by intestate succession to the testator’s heirs
at law.
 
5.       A
testamentary gift, however, will not lapse if the deceased devisee is a
descendant of the testator or a descendant of a testator’s parent and died
before (or is deemed to have died before) the testator.
 
6.       The
descendants of the devisee who survived the testator by 120 hours take the devised
property in place of the devisee.  This
law is known as the Anti-Lapse Statute.  
 
7.       The Anti-Lapse
Statute applies unless there is clear language in a will that provides
otherwise.  For example, a devise or
bequest “to my surviving children” or “to such of my children as shall survive
me” would prevent the application of the anti-lapse statute because of the
survivorship condition.
 
8.       In the
instant case, the applicability of the Anti-Lapse Statute allows the specific devises
made to the Testator’s deceased children to pass through to their children because the devisees are
descendants of Testator.
 
9.       The
personal property described in Paragraph 3.1 and 3.3 of the Will, to wit: the 2000
Ford pickup truck and tools pass to the lineal descendants of the predeceased
beneficiary, to wit: the three surviving children of John Karl Lacis, Sr., as
joint tenants in common in the following proportions—(a) John Karl Lacis, Jr., 33.33%; (b) Jason Wesley
Lacis, 33.33%; and (c) Miranda Lynn Slate, 33.34%.
 
10.     The real
property described in Paragraph 5.1 of the Will, to wit: the property located
at 1918 Kings Lane, Alvin, Texas, passes to the lineal descendents of the
predeceased beneficiaries, to wit: the four surviving children of John Karl
Lacis, Sr., and Diane Beth Lacis Mueck as joint tenants in common in the
following proportions—(a)
John Karl Lacis, Jr., 23.33%; (b) Jason Wesley Lacis, 23.33%: (c) Miranda Lynn
Slate, 23.34%; and (d) Carrisa Mueck Ferguson, 30%.
 
Betty now appeals the trial
court’s declaratory judgment presenting one issue.[2]  Betty contends that because the specific gifts
to Uldis’s children found in Articles III and V of the Will had lapsed, the
gifts “pass according to the residuary clause of the Will” and not according to
the Anti-Lapse Statute.  She asserts
that, as a result, those gifts pass to her as the residuary beneficiary under
the Will.  
Standard of Review
          When,
as in this case, the record indicates that the trial court heard the case on
stipulated facts, a reviewing court may treat the case as one involving an
agreed statement of facts under Rule of Civil Procedure 263.  See Abbott
v. Blue Cross & Blue Shield of Tex., Inc., 113 S.W.3d 753, 757 (Tex. App.—Austin 2003, pet. denied); State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex. App.—Fort Worth 1996, writ denied); see also Tex. R. Civ. P. 263.  “An
agreed statement of facts under Rule 263 is similar to a special verdict; it is
the parties’ request for judgment under the applicable law.”  Kessler,
932 S.W.2d at 735 (Tex. App.—Fort Worth 1996, writ denied) (citing Chiles v. Chubb Lloyds Ins. Co., 858
S.W.2d 633, 634 (Tex. App.—Houston [1st Dist.] 1993, writ denied)).  We make no presumptions in favor of the
judgment because the trial court had no factual issues to resolve.  Harris
County Appraisal Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d 88, 91
(Tex. App.—Houston [1st Dist.] 2003, pet. denied); Stewart v. Hardie, 978 S.W.2d 203, 206 (Tex. App.—Fort Worth 1998, pet. denied).  We decide only whether the trial court
correctly applied the law to the agreed facts.  Tex. Gas
Transmission Corp., 105 S.W.3d at 91; Harris
County Appraisal Dist. v. Transamerica Container Leasing Inc., 920 S.W.2d
678, 680 (Tex.App.-Houston [1st Dist.] 1995, writ denied).  Because the issue is purely a question of law,
our review is de novo.  Tex. Gas Transmission Corp., 105 S.W.3d at
91; Stewart v. Hardie, 978 S.W.2d
203, 206 (Tex. App.—Fort
Worth 1998, pet. denied).  
Applicability of Probate
Code Section 68(a)
          As
stated by the grandchildren (hereinafter “appellees”) in their brief, “The key
legal issue in this case is whether the respective specific bequests and devises
‘lapsed,’ or whether they passed through to the deceased beneficiary’s lineal
descendants” pursuant to the Anti-Lapse Statute.  The parties agree that Uldis’s intent, as
expressed in the Will, determines this issue. 

A.      Governing Law and Principles
          At common law, when a bequest
or devise was made to someone who predeceased the testator, the gift lapsed,
unless the will provided for a substitute legatee or devisee.  See Chadwick
v. Bristow, 208 S.W.2d 888, 890 (Tex. 1948).  A lapsed gift will pass into the residuary
estate unless a specific intent to the contrary is shown.  See Wilson
v. Clay, 593 S.W.2d 725, 727 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ
refused n.r.e.); see Tex. Prob. Code Ann. § 68(b).
The Anti-Lapse Statute
provides an important exception to the common-law rule of lapse.  Subsection (a) of the statute prevents the
lapse of a gift made to a descendant of the testator, or to a descendant of the
testator’s parents, when the beneficiary predeceases the testator.  See Tex. Prob. Code Ann. § 68(a).  By its terms, the Anti-Lapse Statute “applies
unless the testator’s last will and testament provides otherwise.”  See id.
at § 68(e).  The statute explains,
“For example, a devise or bequest in the testator’s will such as ‘to my
surviving children’ or ‘to such of my children as shall survive me’ prevents
the application of subsection (a) of this section.”  Id.  In other words, the Anti-Lapse Statute
applies unless the testator expressed a contrary testamentary intent or purpose
in his will.  See id.; see also Rossi v.
Rossi, 448 S.W.2d 162, 165 (Tex. Civ. App.—Houston [14th Dist.] 1969, writ ref’d
n.r.e.) (adopting view that Anti-Lapse Statute “is without application if it is
evident from a will that the failure to provide for the passing of a legacy in
conformity with the statute is not an oversight and the statutory disposition
would not be in harmony with the testator’s testamentary purpose”).  
          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.  In other words, we look for the testator’s
intent as revealed in the language of the whole will.  Welch v.
Straach, 531 S.W.2d 319, 321 (Tex. 1975); Cooley v. Williams, 31 S.W.3d 810, 812 (Tex. App.—Houston [1st
Dist.] 2000, no pet.)  The question is
not what the testator intended to write, but the meaning of the words he
actually used.  Lang, 35 S.W.3d at 639.  “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.”  In re
Estate of Florence, 307 S.W.3d 887, 893 (Tex. App.—Fort Worth 2010, no pet.).  We presume that the testator placed nothing
superfluous or meaningless in his will and that he intended every word to play
a part in the disposition of his property.  Cooley,
31 S.W.3d at 812 (citing Marlin v. Kelly,
678 S.W.2d 582, 587 (Tex. App.—Houston [14th Dist.] 1984), aff’d, 714 S.W.2d 303 (Tex. 1986)).
B.      Analysis
          In
Paragraph 9.3, Uldis specifically stated that the residuary estate would
include “all property in which I may have any interest (including lapsed
gifts). . . .”  If a word has been ascribed a technical legal meaning, we presume that the word is being employed in
that sense when it appears in a will, unless a different meaning can be gleaned
from the will as a whole.  See Mitchell v. Mitchell, 244 S.W.2d
803, 806 (Tex. 1951).  We also assume that when technical, legal
terms are used in a will, they are being used correctly.  See id.  
The term “lapsed” has a
well-settled legal meaning in the context of wills and estates.  A legacy or devise has historically been defined
to have “lapsed” when the legatee or devisee predeceases the testator, and a
substitute beneficiary has not been named.  See Chadwick,
208 S.W.2d at 890; Bomar v. Carstairs,
79 S.W.2d 841, 846 (Tex. 1935).  We
presume that Uldis ascribed that legal meaning to the term “lapsed” in defining
the property he intended to include in his residuary estate.  See
Mitchell, 244 S.W.2d at 806.
          We
are aware of arguments that support the position that the reference to lapsed gifts
does not manifest an intention to avoid subsection (a) of the Anti-Lapse
Statute.  It could be asserted that
“lapsed gifts” means any gifts not saved by the Anti-Lapse Statute, thereby
ensuring that any gifts that had lapsed would not pass by intestacy.  It could also be argued that the Anti-Lapse
Statute prevents the “lapse” of the gifts in the first instance, thus rendering
the Will’s residuary clause inapplicable to appellees.  
          Accepting
either argument, however, renders the lapsed-gift language surplusage, which is
contrary to the established rules of will construction.  See Cooley,
31 S.W.3d at 812.  The common law and
subsection (b) of the Anti-Lapse Statute already provide that a lapsed gift
passes into the residue of the estate.  See Tex.
Prob. Code Ann. § 68(b); Wilson,
593 S.W.2d at 727.  Thus, it is
unnecessary for a will to contain a similar provision to prevent intestacy.  
          In
their brief, appellees criticize Betty’s argument that another provision in the
Will, which is not directly involved in the dispute, also indicates Uldis’s
intent that subsection (a) of Anti-Lapse Statute does not apply to the specific
bequests and devises in the Will that are the subject of this dispute.  Betty points to Article IV of the Will in
which Uldis gave a certain percentage of two different bank accounts to his
mother, to his son, and to his daughter “or to [his or] her issue per stirpes.”  Betty argued that these express provisions showed
that Uldis had intended that only certain specific gifts granted in the Will
would pass to the devisee’s lineal descendants. 
She asserted that the lack of such wording with regard to the specific
gifts in Articles III and V indicate Uldis’s intent that those gifts would not
pass to the devisee’s descendants in the event of the devisee’s death.  In other words, she asserted that the lack of
such wording indicated a testamentary intent contrary to the application of the
Anti-Lapse Statute.
          We
agree with appellees that, standing alone, Betty’s argument would not
sufficiently show Uldis’s intent that subsection (a) of the Anti-Lapse Statute does
not apply to the specific bequests made in Articles III and V.  Nonetheless, Article VI demonstrates an
understanding by Uldis of how to make a substitute gift when a beneficiary did
not survive.  Uldis’s apparent decision
not to mention a substitute class if his children predeceased him, when he had
demonstrated an understanding of how to make such a substitute class gift, lends
further support to the conclusion that by defining the residuary estate to
include lapsed gifts, Uldis intended that subsection (a) of the Anti-Lapse Statute
would not apply to the specific bequests in Articles III and V.  In other words, although Article VI is not
determinative, it is of assistance in ascertaining Uldis’s intent with respect
to the specific bequests made in Articles III and V when read together with the
residuary clause language of the Will.  See Bergin v. Bergin, 315 S.W.2d 943,
946–47 (Tex. 1958) (explaining
that court must ascertain intent of testator by examining the entire will as a
whole). 
          Appellees
also contend that Betty’s construction of the Will is contrary to the holdings
of Perry v. Hinshaw, 633 S.W.2d 503,
505 (Tex. 1982) and White v. Moore,
760 S.W.2d 242, 243–44
(Tex. 1988).  Citing these cases, appellees
assert that Betty’s “argument fails because in order for the language of the
will to negate the application of the Anti-Lapse Statute, the limiting language
must be specific to the bequest or devise at issue.”  Each of these opinions stand for the
proposition that a will must contain sufficiently clear language to defeat a
lineal descendant’s right to recover a specific bequest when the named devisee
predeceases the testator.  See White, 760 S.W.2d at 243–44; Perry, 633 S.W.2d at 505. 
However, contrary to appellees’ assertion, neither necessarily precludes
a testator from placing language in a residuary clause obviating the
application of the Anti-Lapse Statute nor requires that the limiting language
must be contained within the specific bequest at issue.[3]  See White,
760 S.W.2d at 243–44; Perry, 633 S.W.2d at 505.  
The parties have not cited nor
have we found any Texas case deciding whether language in a will’s residuary
clause, which provides that the residue is to include lapsed gifts, is
sufficient to negate the application of the Anti-Lapse Statute provision that
saves the gift for the descendants of the deceased devisee.  Our research reveals that the majority of
other jurisdictions addressing this issue have held that a testator’s use of similar
language demonstrates an intention that a lapsed bequest becomes part of the
residuary estate and is not saved by the applicable anti-lapse statute.  See,
e.g., Colombo v. Stevenson, 563 S.E.2d 591, 592–94 (N.C. Ct. App. 2002) (concluding that language
that residue included “all lapsed legacies and devises, or other gifts made by
this will which fail for any reason” was sufficiently clear language to express
testatrix’s intent that North Carolina’s anti-lapse statute did not apply to legacies
and devises which had lapsed); Estate of
Salisbury, 143 Cal. Rptr. 81, 82–84 (Cal. Ct. App. 1978) (concluding that language
stating that “the residue of my estate, real and personal, wheresoever situate,
including all failed and lapsed gifts” was a sufficiently clear expression of
testatrix’s intent to render that California’s anti-lapse statute
inapplicable); In re Neydorff, 184
N.Y.S. 551, 554 (N.Y. App. Div. 1920) (holding that in case in which testator
granted the residue to specified person, “including lapsed legacies,” the
legacies to testator’s predeceased brother and sister did not fall within New
York’s anti-lapse statute); In re Phelps’
Estate, 126 N.W. 328, 329–30 (Iowa 1910) (concluding residuary clause providing,
“I give, devise and bequeath all the rest, residue and remainder of my estate,
real, personal and mixed, wheresoever situated together with any of my estate
that may fail, for any reason to pass . . . to the following named persons. . .
.” demonstrated testator’s intention that Iowa’s anti-lapse statute was not
applicable). 
The only exception is
Kentucky.  In Blevins v. Moran, 12 S.W.3d 698, 700, 704 (Ky. Ct. App. 2000) the
Kentucky Court of Appeals held that a will’s residuary clause that included the
phrase “[a]ll the rest, residue and remainder of my estate . . . including
legacies and devises, if any, which may fail for any reason” did not, by itself,
establish a testator’s intent to avoid operation of Kentucky’s anti-lapse
statute.  The Blevin Court reached its holding after concluding that the language
used by the testator was ambiguous, determining that the Kentucky anti-lapse statute
carried with it a “strong presumption against lapse,” and recognizing that Kentucky
law required an affirmative statement in a will that the anti-lapse statute did
not apply.  Id. at 703; Cf. Rossi, 448 S.W.2d at 165 (indicating
that testamentary intent that Anti-Lapse Statute not apply can be express or
implied).
Here, Uldis granted specific
legacies and devises to his two children in Articles III and V without stating
what would occur should they predecease him.  Later in the will, in Paragraph 9.3, Uldis stated
that his residuary estate was to include “all property in which I may
have any interest (including lapsed gifts) . . . .”  Given the commonly assigned legal meaning to
the term “lapsed,” the inclusion of this language indicates that Uldis
contemplated that the specific gifts granted in Articles III and V could lapse.
 The language demonstrates Uldis’s
intention that should they lapse, the gifts would become part of his residuary
estate.  Application of the Anti-Lapse Statute
would require us to ignore how Uldis expressly defined his residuary estate and
presume that he intended for the specific bequests in Articles III and V to
pass to his grandchildren should his children predecease him.  In light of the express language in Uldis’s
will, we decline to do so.  See Florence,
307 S.W.3d at 893 (explaining that testator’s intent is ascertained by looking
at language found within the four corners of the will, and that, if possible,
all parts of  a will must be harmonized,
and every sentence, clause, and word must be considered in ascertaining the
testator’s intent).
Considering the language of
Paragraph 9.3 and the Will as a whole, we conclude that Uldis sufficiently expressed
his intent that subsection (a) of the Anti-Lapse Statute not apply.  We hold that the trial court erred when it determined
that subsection (a) of the Anti-Lapse Statute applied and ordered that
appellees were entitled to the specific gifts granted to their respective
parent in Articles III and V of the Will.
Conclusion
We reverse the judgment of
the trial court and remand the case for further proceedings.
          
 
                                                                   Laura
Carter Higley
                                                                   Justice

 
Panel consists of Justices
Jennings, Higley, and Brown.




[1] See Tex. Prob. Code Ann. § 68(a) (Vernon 2003).  


[2]           In her “Issues Presented” section of
her brief, Betty identifies a second issue for review.  Because her brief presents no argument or
authority to support it, the second identified issue is waived.  See
Tex. R. App. P. 38.1(i).


[3]           We note that the example contained in
subsection (e) of the Anti-Lapse Statute for negating the application of the
statute is an illustration of limiting language that would be contained within
a specific devise or bequest.  See TEX.
PROB. CODE ANN. § 68(e).  However,
nothing in the Anti-Lapse Statute requires as much.  


