Opinion issued February 6, 2020




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-19-00216-CV
                            ———————————
             IN RE ESTATE OF DEBRA E. HUNT, DECEASED
        TRACY MITCHELL AND ANDREA VASQUEZ, Appellants
                                        V.
 ARABIA VARGAS, INDEPENDENT EXECUTOR OF THE ESTATE OF
            DEBRA E. HUNT, DECEASED, Appellee


                       On Appeal from the Probate Court
                           Galveston County, Texas
                       Trial Court Case No. PR-0077954


                                O P I N I O N

      Tracy Mitchell and Andrea Vasquez appeal from a summary judgment in

which the probate court interpreted Debra E. Hunt’s will as giving a large share of

her personal property to her life partner, Arabia Vargas. We affirm.
                                 BACKGROUND

      This suit arises out of a dispute over Debra E. Hunt’s will. In her will, Hunt

disposed of her property as follows:

      Section 1.    I hereby make the following specific bequests:

      1. I give all of my family photos, furnishings and mementos inherited
         from our grandparents or our parents to Tracy Eileen Mitchell;
      2. I give all of my remaining household and personal property to
         Arabia Vargas.

      Section 2. I hereby give all of the remainder of the property,
      wherever located, which I may own at the time of my death as
      follows[:] Fifty percent (50%) to Tracy Eileen Mitchell and her issue,
      per stirpes and not per capita; and Fifty percent (50%) to Lina Schmidt
      Hollis and Andrea Wendy Vasquez, and each of their issue, per stirpes
      and not per capita.

      Hunt had two life partners during her life. The first was Connie Moore, who

passed away almost two years before Hunt. Andrea Wendy Vasquez and Lina

Schmidt Hollis are Moore’s daughter and stepdaughter. Hunt had no children of her

own. Tracy Eileen Mitchell is Hunt’s sister. Arabia Vargas was Hunt’s life partner

when Hunt passed.

      The total value of Hunt’s estate exceeded $665,000. It included:

      ●   just under $230,000 in various bank accounts;

      ●   more than $24,000 in household furnishings and miscellaneous belongings;

      ●   two motor vehicles worth $34,000 combined;

      ●   almost $3,500 in stocks; and


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      ●   a house in Galveston County valued at $374,000.

The house was sold a month or so after Hunt passed away.

      The parties’ dispute centers on the scope of Hunt’s bequest to Vargas. Vargas

contends that Hunt bequeathed to her all personal property—including intangible

personal property such as the bank accounts—other than the family photos,

furnishings, and mementos that Hunt gave to Mitchell. Vargas therefore maintains

that the sole property that passes under the residuary clause is Hunt’s house. Mitchell

and Vasquez, in contrast, contend that Hunt’s bequest of personal property to Vargas

is limited to household items and tangible personal property. They maintain that

intangible personal property, including the money in Hunt’s bank accounts, and real

property are subject to the will’s residuary clause.

      Both sides moved for summary judgment in the probate court. The probate

court sided with Vargas and declared that Hunt had bequeathed all personal property

to Vargas other than the specific items bequeathed to Mitchell.

                                  JURISDICTION

      The probate court’s summary judgment was a partial one. It resolved the

parties’ dispute as to the interpretation of the will, but it did not resolve their

corresponding claims for attorney’s fees, which the probate court severed into a

separate action with its own cause number. Mitchell and Vasquez then appealed.




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      This court notified the parties of its intent to dismiss the appeal for lack of

jurisdiction because the summary judgment was not final and appealable due to the

pendency of the fee claims. See, e.g., Van Duren v. Chife, 569 S.W.3d 176, 184 (Tex.

App.—Houston [1st Dist.] 2018, no pet.) (summary judgment disposing of some but

not all claims between parties to appeal does not become final and appealable by

severing unresolved claims from those resolved by summary judgment).

      In response, Mitchell and Vasquez filed an agreed motion to abate the appeal

so that the parties could dismiss their unresolved fee claims. We granted the motion,

and the parties non-suited their fee claims. We then reinstated the appeal from the

summary judgment, which is now final and appealable.

                                  DISCUSSION

      Mitchell and Vasquez contend that when Hunt’s will is interpreted as a whole,

it unambiguously bequeaths Vargas tangible personal property rather than all

personal property other than the family-related items given to Mitchell. Thus, they

assert, Hunt’s bank accounts pass to them and Hollis under the will’s residuary

clause. Vargas responds that Hunt unambiguously bequeathed to her all personal

property, including the bank accounts, other than the items given to Mitchell.

                     Standard of Review and Applicable Law

      The interpretation of an unambiguous will—one that can be given a definite

meaning—presents a question of law, which we review de novo. Brewer v. Fountain,


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583 S.W.3d 871, 876 (Tex. App.—Houston [1st Dist.] 2019, no pet.). The testator’s

intent, as expressed in the will’s terms, is controlling. See id. We therefore must

scrutinize the words used by the testator rather than trying to intuit what she may

have intended to write. See id. We must interpret the will as a whole, neither adding

nor subtracting from its terms. See id.; Lacis v. Lacis, 355 S.W.3d 727, 733 (Tex.

App.—Houston [1st Dist.] 2011, pet. dism’d w.o.j.). We cannot rely on extrinsic

evidence of intent to reinterpret an unambiguous will’s terms. Jinkins v. Jinkins, 522

S.W.3d 771, 780 (Tex. App.—Houston [1st Dist.] 2017, no pet.). Similarly, when a

will is unambiguous, we must enforce its terms as written and cannot reinterpret

them based on interpretive aids or canons of construction. Pickelner v. Adler, 229

S.W.3d 516, 531 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

      In ascertaining the meaning of the words used by the testator, we generally

give them their plain, ordinary meaning unless the will shows that the testator used

them in another sense. See Barker v. Rosenthal, 875 S.W.2d 779, 781 (Tex. App.—

Houston [1st Dist.] 1994, no writ). When, however, the law confers a technical legal

meaning on a word, we ordinarily presume the testator intended this usage unless

the will indicates otherwise. Lacis, 355 S.W.3d at 733; see also Martin v. Palmer, 1

S.W.3d 875, 878 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (courts must

give legal terms defined and approved by judicial decision their established meaning




                                          5
unless context shows contrary usage). We also assume that when a technical legal

term is used in a will, it is being used correctly. Lacis, 355 S.W.3d at 734.

      In a will, an unqualified reference to “property” encompasses everything of

exchangeable value that the testator owned, including real and personal property

whether tangible or intangible. In re Estate of Setser, No. 01-15-00855-CV, 2017

WL 444452, at *3 (Tex. App.—Houston [1st Dist.] Feb. 2, 2017, no pet.) (mem.

op.). In its ordinary usage, the term “property” is comprehensive. Id. “Personal

property,” in contrast, excludes real property but otherwise remains broad in

definition, including everything other than real property that is subject to ownership.

San Antonio Area Found. v. Lang, 35 S.W.3d 636, 640 (Tex. 2000); see TEX. EST.

CODE §§ 22.028, 22.030 (defining personal and real property). Because “personal

property” has a settled legal meaning, a court ordinarily need not look beyond these

words to ascertain a testator’s intent if she uses them. See Lang, 35 S.W.3d at 640

(construing “real property”). The legal definition of “personal property” is so well

established that it generally does not allow for an interpretation other than the one

ascribed to it by the law. See id. at 641 (holding so with respect to term “real

property”); see also Erwin v. Steele, 228 S.W.2d 882, 886 (Tex. App.—Dallas 1950,

writ ref’d n.r.e.) (bequest of “personal property” includes “every form of personal

property from whatever source it may be derived; that is, everything except real

property”).


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                                       Analysis

      We must decide whether Hunt’s bequest to Vargas of “all my remaining

household and personal property” conveys all of Hunt’s personal property other than

the family-related items she gave to Mitchell in the immediately preceding clause of

the will or conveys a more limited subset of Hunt’s personal property to Vargas. As

we explain below, we hold that this bequest unambiguously conveys all Hunt’s

personal property—tangible and intangible—apart from the items given to Mitchell.

      “Personal property” has a well-established technical legal meaning. See Lang,

35 S.W.3d at 640. It encompasses everything other than real property. Id. Because

the definition of “personal property” is settled, this definition controls unless context

demands a contrary interpretation. See id.; see also Lacis, 355 S.W.3d at 733.

      Mitchell and Vasquez contend that Hunt’s will shows that she solely intended

to convey tangible, not intangible, personal property to Vargas. They argue that:

      (1) by referring to “household and personal property,” Hunt limited “personal
          property” to items that are material and physical like household goods;

      (2) reading the bequest to Vargas in light of the one to Mitchell, which
          exclusively conveyed household items, shows that Hunt solely intended
          to convey household goods to Vargas;

      (3) by making the bequest to Vargas a specific one, Hunt necessarily limited
          it to particular, identifiable items, not an entire category of property;

      (4) the scope of the residuary clause, which encompasses “the remainder of
          the property” without qualification, shows that Hunt intended to convey
          both personal and real property, which would be impossible if the specific
          bequest to Vargas conveys all of Hunt’s personal property;
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      (5) the will requires payment of debts from the residuary estate, which shows
          that Hunt could not have intended for only real property to pass under the
          residuary clause as real property would need to be liquidated; and

      (6) the declarations section refers to “real, personal, and mixed” property,
          which shows that Hunt did not use terms in a technical sense as Texas
          does not recognize mixed property as a category of property.

We address each of these arguments in turn.

        “Household” Does Not Restrict the Scope of “Personal Property”

      We reject Mitchell and Vasquez’s argument that Hunt’s combined bequest of

household and personal property limits the latter category to tangible items. Hunt

bequeathed “all of my remaining household and personal property” to Vargas.

Mitchell and Vasquez’s proposed interpretation disregards Hunt’s use of the word

“all,” which is incompatible with the limited conveyance of a subset of her personal

property. We must give effect to all the words Hunt used in her will. See Brewer,

583 S.W.3d at 876. A bequest of all personal property unambiguously includes both

tangible and intangible property. See Lang, 35 S.W.3d at 640.

      Mitchell and Vasquez contend that interpreting “personal property” in such

an expansive way makes Hunt’s bequest of her “remaining household” property

superfluous. If Hunt had intended “personal property” to convey both tangible and

intangible items, they argue, “there would have been no need to put household

property in addition to personal property in the language of the bequest.” We are

unpersuaded by this argument because the language would remain superfluous if we


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adopted Mitchell and Vasquez’s interpretation. If Hunt bequeathed all her

“remaining household and tangible personal property,” as Mitchell and Vasquez

advocate, her bequest of her “remaining household” property would still be

subsumed and rendered superfluous by the more expansive “tangible personal

property.” A proposed interpretation of a written instrument that would merely

exchange one ostensible superfluity for another does not shed any light on the

drafter’s intent.

       Viewed in context, however, we do not think that an expansive interpretation

of “personal property” actually renders “my remaining household” superfluous.

Hunt’s reference to her “remaining household” property is a segue between her first

specific bequest, which exclusively conveyed household items, and her second one:

       1. I give all of my family photos, furnishings and mementos inherited
          from our grandparents or our parents to Tracy Eileen Mitchell;
       2. I give all of my remaining household and personal property to
          Arabia Vargas.

The “remaining household” language reinforces that, but for the particular

household items that Hunt bequeathed to Mitchell, all others belong to Vargas. In

other words, “my remaining household” refers back to the previous bequest rather

than qualifying the “personal property” subsequently bequeathed to Vargas.

       Mitchell and Vasquez rely on several decisions for the proposition that a

specific term like “household” necessarily limits a more general one like “personal”

when they are used together. In this case, we disagree. The principle that Mitchell
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and Vasquez invoke is known by the name ejusdem generis, which means “of the

same kind or class.” Ejusdem Generis, BLACK’S LAW DICTIONARY (11th ed. 2019).

Under this canon of construction, “if words of a specific meaning are followed by

general words, the general words are interpreted to mean only the class or category

framed by the specific words.” Hussong v. Schwan’s Sales Enters., 896 S.W.2d 320,

325 (Tex. App.—Houston [1st Dist.] 1995, no writ). We do not, however, resort to

canons of construction like ejusdem generis absent an ambiguity. See id. When a

will is unambiguous, we must apply it as written. See Pickelner, 229 S.W.3d at 531.

      Even if ejusdem generis applied, the decisions on which Mitchell and Vasquez

rely are distinguishable. In Erwin, for example, the Dallas court of appeals addressed

whether a bequest of “other personal belongings” was restricted in scope by the

testator’s identification of “two diamond rings” and “family pictures” as examples.

228 S.W.2d at 884. A divided court applied the canon and held that the bequest of

“other personal belongings” was limited to the same species of property as the more

specific items listed. See id. at 885–86. But Erwin differs from the present suit in

two key respects. First, the bequest at issue used a term other than “personal

property.” Second, the bequest qualified the term that it did use—“personal

belongings”—with two very specific examples: rings and pictures. Hunt’s bequest

of “all of my remaining household and personal property” is not analogous.




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      First Bequest Does Not Limit the Second Bequest to Household Goods

      We reject Mitchell and Vasquez’s argument that Hunt’s bequests to Mitchell

and Vargas must be construed as “one overall specific bequest” conveying tangible

household goods alone. They argue that the bequest to Mitchell limits the scope of

the bequest to Vargas because the former exclusively conveys household items and

the two bequests are joined by a semi-colon instead of being separated by a period.

But this ignores both the structure and language of the bequests. While Hunt’s

specific bequests are not separated by a period, they are separately numbered and

the text of each is set off from the other rather than being formatted as a single

sentence. Hunt gives Mitchell three particular types of items of specified

provenance—“family photos, furnishings and mementos” inherited from their

parents or grandparents—in her first bequest. She then gives Vargas “all of my

remaining household and personal property” in her second bequest. An

interpretation that restricts the second bequest to household goods alone would give

no effect to its additional conveyance of “personal property,” which encompasses

more than household goods even when limited to tangible personal property.

                The Nomenclature of the Bequest is not Dispositive

      Contrary to Mitchell and Vasquez’s position, Hunt’s designation of her

bequest to Vargas as a specific one does not show that Hunt intended to limit the

bequest to tangible items. They reason that because a specific bequest customarily


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conveys a particular thing, a specific bequest cannot convey all personal property.

We agree that a specific bequest generally gifts a particular item that is

distinguishable from all of the testator’s other property. See Hurt v. Smith, 744

S.W.2d 1, 4 (Tex. 1987). But on its face, Hunt’s bequest to Vargas of “all of my

remaining household and personal property” is not a specific bequest even though it

is labeled as one. This remains equally true under Mitchell and Vasquez’s proposed

interpretation limiting the bequest to Vargas to all Hunt’s tangible personal property.

Because the substance of the bequest to Vargas does not correspond to its label, the

label sheds no light on Hunt’s intent as to the bequest’s scope.

    Residuary Clause’s Gift of the Remainder of Hunt’s Property is Irrelevant

      Nor do we agree with Mitchell and Vasquez’s contention that the expansive

scope of the residuary clause shows that Hunt intended to limit her bequest to Vargas

to tangible personal property. They contend that Hunt’s use of the word “remainder”

with the unqualified and all-encompassing term “property” in the residuary clause

shows that she intended both personal and real property to pass under this clause.

But if the bequest to Vargas is interpreted as disposing of all Hunt’s personal

property, they reason, then none would remain subject to the residuary clause.

      Mitchell and Vasquez misapprehend a residuary clause’s purpose. The

primary purpose of a residuary clause is to prevent partial intestacy. Dudley v. Jake

& Nina Kamin Found., No. 01-12-00579-CV, 2014 WL 298270, at *3 (Tex. App.—


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Houston [1st Dist.] Jan. 28, 2014, no pet.) (mem. op.). Partial intestacy could have

arisen, for example, had a named beneficiary, like Vargas, died before Hunt.

Residuary clauses exist in significant part to avoid such a result. See TEX. EST. CODE

§ 255.152(a). That a residuary clause like Hunt’s is broad enough to dispose of both

personal and real property does not, therefore, mean it actually must dispose of both

to realize her intent. See Hurt, 744 S.W.2d at 5 (observing that “most residuary

clauses deal with personal and real property” but that residuary clause at issue solely

disposed of former despite broad applicability to “rest and residue” of estate).

 Debt Payment From Residuary Estate Doesn’t Require a Different Interpretation

      Under Hunt’s will, the executor is to pay any debts, expenses, and taxes from

Hunt’s residuary estate as soon after her death “as can be conveniently done without

the unnecessary sacrifice of any of the properties” of the estate. Mitchell and

Vasquez assert that this debt-payment provision shows that Hunt could not have

intended to give all of her personal property to Vargas. They argue that:

      ●   if Hunt’s bequest to Vargas disposes of all personal property not already
          given to Mitchell, then Hunt’s real property—her Galveston County
          house—is the sole property subject to the will’s residuary clause; and

      ●   if Hunt’s real property is the sole property subject to the residuary clause,
          it will thwart Hunt’s directive to pay debts soon and without sacrificing
          property because these payments will require the sale of the house.

Mitchell and Vasquez thus conclude that Hunt had to have intended that intangible

personal property, like her bank accounts, pass under the will’s residuary clause.


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      We disagree. Hunt’s will does not require the executor to pay the estate’s debts

as soon as possible; it requires the executor to pay them as soon as can be

conveniently done without unnecessary sacrifice. Nor is “sacrifice” synonymous

with the mere “sale” of property. “Sacrifice” connotes the sale of property for less

than its value. See Van Brunt v. BancTexas Quorum, 804 S.W.2d 117, 121 (Tex.

App.—Dallas 1989, no writ) (discussing statute requiring notice of sale to debtor

“so that property will not be sacrificed by a sale at less than its true value”). Thus,

the sale of real property to pay estate debts is not inconsistent with Hunt’s will.

                     Reference to Mixed Property is Immaterial

      In a section of her will separate from her bequests and residuary clause, Hunt

declares that she intends to dispose of all her “property of every kind, real, personal,

and mixed.” Mitchell and Vasquez contend that because Texas does not recognize

mixed property as a separate category, Hunt’s use of this term shows that she did not

intend “personal property” to bear its technical legal meaning.

      In the probate context, “mixed property” is property that is neither real nor

personal. Erwin, 228 S.W.2d at 885. Texas, however, does not recognize “mixed

property” either as an intermediate category of property or as a combination of real

and personal property; in this state, property is real or personal. See id.; TEX. EST.

CODE §§ 22.028, 22.030 (defining “personal property” and “real property” and

omitting “mixed property”). But formulaic references to real, personal, and mixed


                                          14
property are not uncommon in Texas wills. See, e.g., In re Estate of Nash, 220

S.W.3d 914, 916 (Tex. 2007) (bequest of “real, personal and mixed” property);

Doggett v. Robinson, 345 S.W.3d 94, 97 (Tex. App.—Houston [14th Dist.] 2011, no

pet.) (bequest of “all my property, real, personal and mixed”); Pickelner, 229 S.W.3d

at 520 (bequest of property “whether real, personal, or mixed”). At least one

formbook recommends this formulation. See 12 TEX. FORMS LEGAL & BUS.

§§ 24.207, 24.363 (recommending phrases “all my property, real, personal, and

mixed” and “all of the property, real, personal, or mixed, which I may own” to

declare intent to dispose of all property and bequeath all property respectively). We

thus conclude that Hunt’s use of this common formula does not show that she

intended “personal property” to bear a meaning other than the one that it ordinarily

has under Texas law.

                                    Conclusion

      Hunt’s bequest of “all of my remaining household and personal property” is

unambiguous—it conveys to Vargas all of Hunt’s personal property other than the

family-related items that she gave to Mitchell. Contrary to Mitchell and Vasquez’s

contentions, the other provisions of Hunt’s will do not show a different intent.

                    Mitchell and Vasquez’s Fallback Position

      Mitchell and Vasquez alternatively argue that Hunt’s bequest to Vargas is

ambiguous—that Hunt could have intended to bequeath all her personal property or


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just her tangible personal property to Vargas—and that the probate court therefore

erred in deciding that the will is unambiguous and interpreting it as a matter of law.

      A will is ambiguous if it is susceptible to more than one reasonable

interpretation or its meaning is simply uncertain. Knopf v. Gray, 545 S.W.3d 542,

545 (Tex. 2018) (per curiam). Whether a will is ambiguous is a question of law. Id.

If a will is not ambiguous, then courts must interpret it as a matter of law. Id.

      Mitchell and Vasquez do not advance any arguments in support of ambiguity

apart from the ones we already have discussed. Because Hunt’s will is neither

susceptible to more than one reasonable interpretation nor uncertain, we reject

Mitchell and Vasquez’s alternative position that Hunt’s will is ambiguous.

                                   CONCLUSION

      We affirm the probate court’s judgment.




                                               Gordon Goodman
                                               Justice

Panel consists of Justices Keyes, Goodman, and Countiss.




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