                                                                                             ACCEPTED
                                                                                         13-14-00667-CV
                                                                         THIRTEENTH COURT OF APPEALS
                                                                                CORPUS CHRISTI, TEXAS
                                                                                    4/17/2015 6:54:47 PM
                                                                                       DORIAN RAMIREZ
                                                                                                  CLERK

                             Case No. 13-14-00667-CV

                                                              FILED IN
                                      In the            13th COURT OF APPEALS
                                                    CORPUS CHRISTI/EDINBURG, TEXAS
                    Court of Appeals for the Thirteenth District
                                                         4/17/2015 6:54:47 PM
                      of Texas at Corpus Christi – Edinburg
                                                          DORIAN E. RAMIREZ
                                                               Clerk


                                IN THE ESTATE OF
                        MILDRED OZELLA FAVOR PURSLEY,
                      A.K.A. MILDRED F. PURSLEY, DECEASED




                          On Appeal from the Probate Court,
                               Hidalgo County, Texas
                               Cause No. P-34,801-A


            BRIEF OF APPELLEES HAROLD WAYNE PURSLEY, JR.,
                      AND ROLLAND HUGH PURSLEY


Edmundo O. Ramirez
Texas Bar No. 16501420
eor@ekrattorneys.com
Minerva I. Zamora
Texas Bar No. 24037765
miz@ekrattorneys.com
Daniel Koeneke
Texas Bar No. 24083320
daniel@ekrattorneys.com

ELLIS, KOENEKE & RAMIREZ, L.L.P.
1101 Chicago Avenue
McAllen, Texas 78501
Telephone: (956) 682-2400
Facsimile: (956) 682-0820
Attorneys for Appellees, Harold
Wayne Pursley, Jr., and Rolland
Hugh Pursley

April 17, 2015                                           Oral Argument Requested
                                         TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... 2

INDEX OF AUTHORITIES.................................................................................... 5

STATEMENT OF THE CASE ................................................................................ 9

         1. Nature of the Case ..................................................................................... 9
         2. Disposition in Trial Court ......................................................................... 9

STATEMENT ON ORAL ARGUMENT ............................................................. 11

ISSUES PRESENTED........................................................................................... 12

STATEMENT OF FACTS .................................................................................... 14

         1. The 1975 Will ........................................................................................... 14
         2. Brief History ............................................................................................ 15
         3. Competing Summary Judgment Motions ................................................. 17
         4. Trial Court’s Decision ............................................................................. 18
         5. Rocky’s Argument of Ambiguity .............................................................. 19

SUMMARY OF THE ARGUMENT .................................................................... 21

ARGUMENT ......................................................................................................... 25

         I.       ROCKY WAIVED ANY APPEAL OF THE ISSUE OF
                    AMBIGUITY ............................................................................... 25

                  A.       Rocky Failed to Specifically Plead Ambiguity ...................... 25

                  B.       Rocky Conceded that there Are No Fact Issues to Be Decided
                           by the Jury ............................................................................... 28

                  C.       Rocky Failed to Present Evidence and Request a Ruling from
                           the Trial Court on the Issue of Ambiguity .............................. 29

                                                            2
       D.      Rocky Failed to Incorporate a Complaint as to Ambiguity in
               his Motion for New Trial ........................................................ 30

II.    THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE
       1975 WILL WAS A CONTRACTUAL WILL DUE TO THE FACT
       THAT THE 1975 WILL WAS JOINTLY EXECUTED AND SETS
       FORTH A COMPREHENSIVE PLAN TO DISPOSE OF ALL THE
       PROPERTY OWNED BY HAROLD W. PURSLEY AND
       MILDRED F. PURSLEY .................................................................. 31

       A.      Introduction ............................................................................. 31

       B.      Harold W. Pursley and Mildred F. Pursley Jointly Executed the
               1975 Will................................................................................. 32

       C.      The 1975 Will Contained a Comprehensive Plan to Dispose of
               all the Property Owned by the Parties .................................... 33

               C.1. The 1975 Will Provided for a Gift to the Survivor which
                    Was Not Absolute or Unconditional ............................ 33

                        C.1.a. Rebuttal of Rocky’s Argument Regarding
                               Absolute and Unconditional Gifts ...................... 38

               C.2. The Balance Remaining at the Survivor’s Death Is
                    Jointly Disposed of in the Secondary Dispositive
                    Provisions of the 1975 Will .......................................... 39

                        C.2.a. Rebuttal of Rocky’s Argument Regarding the
                               Remaining Balance Being Jointly Disposed of in
                               the Secondary Dispositive Provisions of the 1975
                               Will ..................................................................... 43

III.   THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE
       2007 WILL AND 2010 CODICIL BREACHED THE TERMS OF
       THE 1975 WILL ............................................................................... 46

       A.      The 1975 Will Provided a Class Gift to Rocky, Harold Jr., and
               Rolland in Equal Shares .......................................................... 46

                                               3
                  B.        The 1975 Will Became Effective Upon the Probate of the Will
                            and Members of the Class Were Vested at the Time of Harold
                            W. Pursley’s Death ................................................................. 46

                  C.        The Class Membership Under the 1975 Will Was Ascertained
                            at the Time Fixed for Distribution .......................................... 48

                  D.        Rebuttal of Rocky’s Argument that the Plain Language of the
                            1975 Will Demonstrates there Was No Breach ...................... 49

                  E.        Rebuttal of Rocky’s Argument that the Rules of Construction
                            Demonstrate There Was No Breach ....................................... 52

                  F.        Rebuttal of Rocky’s Argument that the 1975 Will Does Not
                            Create a Class Gift .................................................................. 55

         IV.      MILDRED F. PURSLEY CAUSED THE 1975 WILL TO BE
                  PROBATED AND ACCEPTED THE BENEFITS UNDER IT,
                  THUS IT WOULD BE MANIFESTLY UNJUST TO ALLOW HER
                  TO DISAVOW IT AND ITS OBLIGATIONS ................................ 59

         V.       IN THE ALTERNATIVE, IF THIS COURT FINDS THAT ROCKY
                  SUFFICIENTLY PLEAD AMBIGUITYAND THAT THIS CLAIM
                  WAS NOT WAIVED, AS A MATTER OF LAW THE TERMS OF
                  THE1975 WILL ARE NOT AMBIGUOUS..................................... 60

         VI.      CONCLUSION ................................................................................. 62

PRAYER ................................................................................................................ 64

CERTIFICATE OF RULE 9.4(i) COMPLIANCE ............................................... 65

CERTIFICATE OF SERVICE .............................................................................. 66

APPENDICES ....................................................................................................... 67




                                                            4
                                        INDEX OF AUTHORITIES
Cases

Alviar v. Gonzalez,
725 S.W.2d 297 (Tex.App.—Corpus Christi 1986, writ ref'd n.r.e.) ................ 36-38

Barnhill v. Moore,
630 S.W.2d 817 (Tex.App.—Corpus Christi 1982, no writ)................................... 26

Bernard v. L. S. S. Corp.,
532 S.W.2d 409 (Tex.Civ.App.—Austin 1976, writ ref’d n.r.e.) ............................ 27

Boone v. Stone,
142 S.W.2d 936 (Tex.Civ.App.—Fort Worth 1940, writ dismissed, judgment
correct) ............................................................................................................... 40-42

Caples v. Ward,
179 S.W. 856 (Tex. 1915) ........................................................................................ 36

Dougherty v. Humphrey,
424 S.W.2d 617 (Tex. 1968) .................................................................. 21, 34, 38-39

Edds v. Mitchell,
184 S.W.2d 823 (Tex. 1945)........................................................................ 36, 38-39

Ellis v. Bruce,
286 S.W.2d 645 (Tex.Civ.App.—Eastland 1956, writ ref'd n.r.e.) ......................... 36

Guilliams v. Koonsman,
279 S.W.2d 579 (Tex. 1955).............................................................................. 41-42

Hagood v. Hagood,
186 S.W. 220 (Tex.Civ.App. –Fort Worth 1916, writ ref’d) ................................... 40

Hamm v. Millennium Income Fund, L.L.C.,
178 S.W.3d 256 (Tex.App.—Houston [1st Dist.] 2005, pet. denied) ..................... 31

Houston v. Schuhmann,
92 S.W.2d 1086, (Tex.Civ.App.—Amarillo 1936, writ ref’d) .............. 22, 43, 47-48



                                                              5
In re Estate of Ayala,
702 S.W.2d 708 (Tex.App.—San Antonio 1985, no writ) ...................................... 54

In re Estate of Johnson,
781 S.W.2d 390 (Tex.App.—Houston [1st Dist.] 1989, writ denied) ........21, 35, 38

Lewis v. E. Texas Fin. Co.,
146 S.W.2d 977 (Tex. 1941)..............................................................................23, 61

Lorenz v. Janssen,
116 S.W.3d 421 (Tex.Civ.App.—Corpus Christi 2003, no pet.) ......................46, 47

Manes v. Dallas Baptist Coll.,
638 S.W.2d 143 (Tex.App.—Dallas 1982, writ ref’d n.r.e.) ................................... 62

Methodist Hospitals of Dallas v. Amerigroup Texas, Inc.,
231 S.W.3d 483 (Tex.App.—Dallas 2007, pet. denied) .......................................... 53

Mitchell v. Mitchell,
244 S.W.2d 803 (Tex. 1951).................................................................................... 52

Morris v. Williams,
92 S.W.2d 541 (Tex.Civ.App.—Dallas 1936, writ ref’d) ....................................... 39

Newman v. Tropical Visions, Inc.,
891 S.W.2d 713 (Tex.App.—Houston [14th Dist.] 1994, writ denied) .................. 99

Novak v. Stevens,
596 S.W.2d 848 (Tex. 1980) .............................................................................. 26-27

Odeneal v. Van Horn,
678 S.W.2d 941 (Tex. 1984) ........................................................................ 31, 37-38

O'Grady v. Gerald D. Hines, Inc.,
683 S.W.2d 763 (Tex.App.—Houston [14th Dist.] 1984, no writ) ......................... 61

Ohrt v. Union Gas Corp.,
398 S.W.3d 315 (Tex.App.—Corpus Christi—Edinburg 2012, pet. denied) ......... 28

Perry Homes v. Cull,


                                                       6
258 S.W.3d 580 (Tex. 2008).................................................................................... 28

Reynolds v. Estate of Benefield,
995 S.W.2d 885 (Tex.App.—El Paso 1999, pet. denied) ...................... 22, 32-33, 38

San Antonio Machine & Supply Co. v. Allen,
268 S.W. 532 (Tex.Civ.App.—San Antonio 1925, no writ) .............................26, 60

Sanderson v. First National Bank in Dallas,
446 S.W.2d 720 (Tex.App. — Dallas 1969, writ ref’d n.r.e.) ...........................45, 57

Sinnott v. Gidney,
322 S.W.2d 507 (Tex. 1959)................................................................... 45-46, 56-57

Skyline Furniture, Inc. v. Gifford,
433 S.W.2d 950 (Tex.Civ.App.—El Paso 1968, no writ) .................................30, 60

Sullivan v. Skinner,
66 S.W. 680, (Tex.Civ.App. 1902, writ refused)..................................................... 42

Gonzales v. Norris of Houston, Inc.,
575 S.W.2d 110 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.) ..... 26

Vickers v. Vickers,
553 S.W.2d 768 (Tex.Civ.App.—Beaumont 1977, no writ) ...................................26

Vickrey v. Gilmore,
554 S.W.2d 36 (Tex.Civ.App.—Waco 1977, no writ) ...................................... 59-60

Weidner v. Crowther,
301 S.W.2d 621 (Tex. 1957)........................................................................ 23, 58-59

Weir v. Smith,
62 Tex. 1 (Tex. 1884)............................................................................................... 36

Wiemers v. Wiemers,
683 S.W.2d 355 (Tex. 1984)............................................................ 22, 23, 32, 58-59

Wilkes v. Wilkes,
488 S.W.2d 398 (Tex. 1972) .............................................................................. 39-40


                                                          7
Statutes and Rules

Tex. Estates Code § 254.004.................................................................................... 32

Tex. Estates Code § 201.002..............................................................................22, 42

Tex. R. App. P. 33.1........................................................................................... 29-30

Tex. R. Civ. P. 94 ...............................................................................................25, 28

Tex. R. Civ. P. 166a ........................................................................................... 26-27

Other Authorities

Corpus Juris, vol. 69, p. 80, Wills, s 1136 ............................................................... 52

9 Tex. Prac., Texas Law Of Wills § 30.4 (3d ed.) ................................................... 39

Restatement (Third) of Property (Wills & Don. Trans.)
§ 14.2 TD No. 4 (2004) ............................................................................................ 45

Restatement (Third) of Property (Wills & Don. Trans.) (2011) .............................. 57

Lewis M. Simes & Allan F. Smith, Law of Future Interests
§ 740 (2d ed. 1967 &Current Supp .......................................................................... 45




                                                           8
                          STATEMENT OF THE CASE

      1. Nature of the Case.

      This case concerns the Estate of Mildred F. Pursley. At issue is whether the

Last Will and Testament of Harold W. Pursley and Mildred F. Pursley, executed

on April 29, 1975, is a contractual will, providing for a class gift to Rocky Pursley,

Harold Wayne Pursley, Jr., and Rolland Hugh Pursley in equal shares, which is

binding on the Estate of Mildred F. Pursley. (See 1CR57 (exhibit A) / App. A).

      2. Disposition in Trial Court.

      After Mildred F. Pursley’s death, Rocky Pursley filed an Application to

Probate the will which Mildred F. Pursley executed on April 13, 2007 (hereinafter

the “2007 Will”), and the First Codicil to the 2007 Will which was executed on

January 13, 2010 (hereinafter the “2010 Codicil”). (1CR5-21). Rocky’s

Application to Probate was filed in the Probate Court of Hidalgo County, Texas,

Judge Homero Garza presiding. Id. In response to Rocky’s Application, Harold Jr.

and Rolland filed their Application for Temporary Administration Pending Will

Contest, and their Opposition To Probate of Will and for Issuance of Letters

Testamentary, Petition for Imposition of a Constructive Trust and Petition for

Probate of Will and for Issuance of Letters Testamentary. (1CR22, 31).

      On December 30, 2013, Harold Jr. and Rolland filed a Motion for Summary

Judgment wherein they requested that the trial court impose a constructive trust on



                                          9
the estate in order to enforce the terms of the 1975 contractual Will disposing of

the estate to the children of the marriage in equal shares. (1CR27). Subsequently,

Rocky filed a No Evidence Motion for Summary Judgment on the same issues.

(1CR87).

      The trial court granted Harold Jr. and Rolland’s Summary Judgment and

imposed a constructive trust on the estate in favor of the dispositive terms of the

1975 Will providing for a class gift to Rocky, Harold Jr., and Rolland in equal

shares. (2CR208, 270). Subsequently, the trial court severed the Summary

Judgment and executed a Final Judgment in the severed cause. (1CR267, 270).




                                        10
                   STATEMENT ON ORAL ARGUMENT

      Appellees believe that oral argument would assist the Court in deciding the

issues involved, and therefore respectfully request an oral argument pursuant to

Rule 39 of the Texas Rules of Appellate Procedure.




                                       11
                              ISSUES PRESENTED

I.     Rocky waived any appeal of the issue of ambiguity.

       A.    In the alternative, as a matter of law the terms of the 1975 Will are not
             ambiguous.

II.    The Trial Court did not err in granting summary judgment that the 1975 Will
       was a contractual will.

       A.    The trial court did not err in granting summary judgment finding that
             the language contained in paragraph IV., “any child or children of this
             marriage,” provided for the remainder of the estate to be conveyed as
             a class gift to Rocky Pursley, Harold Wayne Pursley, Jr., and Rolland
             Hugh Pursley.

       B.    The trial court did not err in granting summary judgment finding that
             Harold W. Pursley’s intent was that at his passing (if he died first),
             and at the subsequent passing of his wife, any estate left over was to
             go to and vest in his beloved children Harold Wayne Pursley, Jr.,
             Rolland Hugh Pursley, and Rocky Joe Pursley, share and share alike.

       C.    The trial court did not err in granting summary judgment finding that
             the proferred Will executed by Mildred F. Pursley dated April 13,
             2007 and Codicil dated January 13, 2010 breached the 1975
             contractual will.

III.   The trial court did not err in imposing a constructive trust in favor of the
       devisees of the 1975 Will to the extent necessary to enforce the terms of the
       1975 contractual Will disposing of the remainder of the estate to Rocky
       Pursley, Harold Wayne Pursley, Jr., and Rolland Hugh Pursley in equal
       shares.




                                         12
                            Case No. 13-14-00667-CV


                                      In the
                    Court of Appeals for the Thirteenth District
                      of Texas at Corpus Christi – Edinburg


                                IN THE ESTATE OF
                        MILDRED OZELLA FAVOR PURSLEY,
                      A.K.A. MILDRED F. PURSLEY, DECEASED



                        On Appeal from the Probate Court,
                             Hidalgo County, Texas
                             Cause No. P-34,801-A


                              BRIEF OF APPELLEES



TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

      COME NOW Appellees Harold Wayne Pursley, Jr. and Rolland Hugh

Pursley and file this their Appellees’ Brief, requesting that the Court affirm the

trial court’s Final Judgment. Parties will be referred to as in the trial court or by

name. References to the Clerk’s Record will be to {volume}CR{page}, and

references to the Appendices will be to App{tab}. References to the Statement of

Facts will be to SOF § {section}.
                                      STATEMENT OF FACTS

           1. The 1975 Will.

           On or about April 29, 1975, Harold W. Pursley and Mildred F. Pursley, as

husband and wife, jointly executed the “Last Will and Testament of Harold W.

Pursley and Mildred F. Pursley” (hereinafter the “1975 Will”). (1CR57 (exhibit

A)1 / App. A). The 1975 Will was jointly executed by Harold W. Pursley and

Mildred F. Pursley, husband and wife, and set forth a comprehensive plan to

dispose of all their property. (1CR57 (exhibit A) / App. A).

           Harold W. Pursley and Mildred F. Pursley executed the same will, “being of

sound mind, memory and understanding in view of the certainty of death and the

uncertainty of life, and being desirous of making the best disposition of our

worldly affairs, do hereby make and publish this our Last Will and Testament,” at

the same time and place, and before the same witnesses. (1CR57 (exhibit A) / App.

A). (Emphasis added).

           As stated above, the 1975 Will set forth a comprehensive plan to dispose of

all of Harold W. Pursley and Mildred F. Pursley’s property. (See id.). Specifically,

the 1975 Will provides that all of Harold W. Pursley and Mildred F. Pursley’s

property shall go to the survivor for the survivor’s lifetime. (See id.). Upon the




1
    Exhibits are from Harold Pursley Jr. and Rolland Pursley’s Traditional Motion for Summary Judgment.1CR44.



                                                        14
death of the survivor, the property is to be distributed to the children of Harold W.

Pursley and Mildred F. Pursley as a class gift in equal shares. (See id.).

       In part, the 1975 Will provides as follows:


Harold W. Pursley and       We, Harold W. Pursley and Mildred F. Pursley, husband and
Mildred F. Pursley’s 1975   wife, of the County of Hidalgo, State of Texas, being of sound
Will                        mind, memory and understanding in view of the certainty of
                            death and the uncertainty of life, and being desirous of making
                            the best disposition of our worldly affairs, do hereby make and
                            publish this our Last Will and Testament.

                            It is our will and desire that the survivor of us, Harold W.
                            Pursley or Mildred F. Pursley, as the case may be, shall, with the
                            rights and authority below given, have all the estate of every
                            description, real, personal or mixed, which either of us may own,
                            to be used, occupied, enjoyed, conveyed and expended by and
                            during the life of such survivor shall desire and that upon the
                            death of such survivor, any of such estate then remaining shall
                            go to and vest in any child or children of this marriage.


      2. Brief History.

      On May 10, 1980, Harold W. Pursley died, leaving all his estate to pass

through the 1975 Will. (1CR61 (exhibit B) / App. B). At the time of his death,

Harold W. Pursley had three children, Rocky Joe Pursley, Harold Wayne Pursley,

Jr., and Rolland Hugh Pursley, all three being the children of Mildred F. Pursley.

      On May 20, 1980, Mildred F. Pursley filed an Application to Probate the

1975 Will and have Letters Testamentary issued in her name. (1CR61 (exhibit B) /

App. B). The Court then entered an Order Admitting Will to Probate and

Authorizing Letters Testamentary. (1CR63 (exhibit C) / App. C.) Pursuant to the




                                             15
court’s order, Mildred F. Pursley was appointed as Independent Executrix of her

husband’s estate. (1CR63 (exhibit C) / App. C). She then filed her written Oath as

Independent Executrix and was issued Letters Testamentary. (1CR65 (exhibit D) /

App. D, 66 (exhibit E) / App. E).

        As seen by Mildred’s Application for Probate of Will and Issuance of

Letters Testamentary referenced above, Harold “left a valid written Will (‘Will’)

dated April 29, 1975 which was never revoked.” (1CR61 (exhibit B) / App. B).

Thus, it is clear that neither Harold W. Pursley nor Mildred F. Pursley revoked the

1975 Will before Harold W. Pursley’s death. (1CR61 (exhibit B) / App. B)

        On February 10, 1981, as the Independent Executrix of her husband’s estate,

Mildred F. Pursley filed the Inventory, Appraisement, and List of Claims. 2

(1CR67, 76 (exhibit F) / App. F). As seen by this Inventory, Appraisement, and

List of Claims, Mildred F. Pursley received a substantial benefit from probating the

1975 Will. (1CR67, 76 (exhibit F) / App. F). Under the express terms of the joint

and contractual 1975 Will, Mildred F. Pursley was to enjoy the benefit of this

property for her lifetime. (1CR57 (exhibit A) / App. A).

        After Harold W. Pursley died and his ability to amend the 1975 Will was

terminated, Mildred F. Pursley executed a Last Will and Testament, the 2007 Will,

on April 13, 2007, approximately 27 years after the 1975 Will was probated.
2
 At the time the Inventory, Appraisement and List of Claims was filed, Harold W. Pursley and Mildred F. Pursley
owned certain assets, the majority of which was real property, worth approximately $531,775.50. Today, that real
property is worth approximately three million dollars.



                                                      16
(1CR57 (exhibit A) / App. A., 61 (exhibit B) / App. B., 77 (exhibit G) / App. G).

Subsequently, Mildred F. Pursley executed a First Codicil, the 2010 Codicil, to the

2007 Will on January 13, 2010. (1CR83 (exhibit H) / App. H). The 2007 Will and

2010 Codicil provide for a distribution of the majority of the estate to Rocky, with

a minor percentage to Rolland. (77 (exhibit G) / App. G, 83 (exhibit H) / App. H).

The 2007 Will and 2010 Codicil failed to provide a disposition of any part of the

estate to Harold Jr. (See id.).

      After Mildred F. Pursley’s death, Rocky filed an Application to Probate the

2007 Will and 2010 Codicil in the Probate Court of Hidalgo County, Texas, Judge

Homero Garza presiding. (1CR5-21). In response to Rocky’s Application, Harold

Jr. and Rolland filed their Application For Temporary Administration Pending Will

Contest and Opposition to the probating of the 2007 Will and 2010 Codicil.

(1CR22, 31).

       3. Competing Summary Judgment Motions.

       Motions for Summary Judgment were filed by both Rocky and Appellee. In

Harold Jr. and Rolland’s Motion For Summary Judgment, Response to Summary

Judgment Motion, Reply to Summary Judgment Motion and brief thereto, Harold

Jr. and Rolland contend that: (1) the 1975 Will was a contractual will which was

not revoked and became binding on the death of Harold W. Pursley; (2) the 1975

will provided for a class gift to Rocky, Harold Jr., and Rolland in equal shares; (3)



                                         17
the rights of Rocky, Harold Jr., and Rolland, as members of the class, under the

1975 Will were vested at Harold Pursley’s death; (4) the 2007 Will and 2010

Codicil breached the terms of the 1975 Will; (5) Mildred F. Pursley caused the

1975 Will to be probated and accepted substantial benefits under it, thus it would

be manifestly unjust to permit Mildred F. Pursley to disavow the 1975 Will and its

obligations after Harold W. Pursley had fully performed by abiding by its terms;

and (6) a constructive trust must be imposed on the estate in favor of Rocky,

Harold, Jr., and Rolland as equal beneficiaries of the estate. (1CR44, 113, 161,

165, 182, 197). In response to Harold Jr. and Rolland’s Motion for Summary

Judgment, Rocky “responded and filed a no-evidence summary judgment motion

claiming his brothers had no evidence (1) that the 1975 Will is contractual, (2) that

the alleged contract was breached, and (3) of undue influence.” Appellant Brief at

17; (1CR87).

      4. Trial Court’s Decision.

      The trial court denied Rocky’s No Evidence Motion for Summary Judgment

and granted Harold Jr. and Rolland’s Motion for Summary Judgment. (2CR209 /

App. J). After severing its summary judgment ruling into a separate action, on

November 20, 2014, the trial court executed a “Final Judgment” in which the trial

court held that:

             IT IS ORDERED, ADJUDGED and DECREED that the will executed by
      Harold W. Pursley and Mildred F. Pursley on April 29, 1975 is a contractual will.



                                             18
        The language in paragraph IV. “any child or children of this marriage” provided
        for the remainder of the estate to be conveyed as a class gift and therefore,
        mandates the distribution to all persons identified in that class, those being all the
        children.

                IT IS ORDERED, ADJUDGED and DECREED that the court concludes
        (reading the 1975 will as a whole instrument) that it was the intent of Harold W.
        Pursley when he executed the 1975 will with his wife, that at his passing (if he
        died first) and at the subsequent passing of his wife, any estate left over was to go
        and vest in his beloved children Harold Wayne Pursley, Jr., Rolland Hugh Pursley
        and Rocky Joe Pursley, share and share alike.

               IT IS ORDERED, ADJUDGED and DECREED that the proferred will
        executed by Mildred F. Pursley dated April 13, 2007 is a breach of the 1975
        contractual will. Further, the proferred First Codicil executed by Mildred F.
        Pursley dated January 13, 2010 is a breach of the 1975 contractual will.

               IT IS ORDERED, ADJUDGED and DECREED that a constructive trust
        be imposed on the Estate in favor of the devisees of the 1975 Will to the extent
        necessary to enforce the terms of the 1975 contractual Will.

(2CR267-69; 2CR270-71 / App. K).

        5. Rocky’s Argument of Ambiguity.

        In addition to Rocky’s allegations that (1) the 1975 Will is not contractual,

and (2) even if the 1975 Will was contractual, the 2007 Will and 2010 Codicil did

not breach the terms of the 1975 Will, Rocky is also now alleging that the 1975

Will is ambiguous. See Appellant Brief at 38. Specifically, despite the fact that

Rocky made no mention of any alleged ambiguity in his Motion for Summary

Judgment, nor did he address the issue of ambiguity in his subsequent Response,

Brief or Reply, Rocky now seeks to reverse the trial court’s Final Judgment based

on the argument that the 1975 Will is ambiguous. (See id.); (1CR87, 100, 192,

205).




                                                 19
       Rocky’s only previous pleading mentioning the ambiguity issue is Rocky’s

Supplemental Application for Probate Will. (1CR95-96). The relevant section of

Rocky’s Supplemental Application for Probate Will provides as follows:

       In the alternative, and only in the event that the 1975 will is determined not to be
       an unambiguously noncontractual will and that the 2007 will and the 2010 codicil
       are determined to breach such will, then such 1975 will is ambiguous and parol
       testimony should be admitted to demonstrate that it was not intended to be
       contractual.

(1CR95-96).

       Significantly, as illustrated above, nowhere in this pleading does Rocky set

forth what specifically he claims is ambiguous in the 1975 Will. (See id.). Thus,

the record fails to contain any pleadings by which Rocky’s request could be

sustained as he failed to set out the specific words and phrases claimed to be

ambiguous. (See id.).

       Further, as seen by the transcript of the August 20, 2014 Pre-Trial Hearing,

Rocky’s attorney made no objection to the statement by opposing counsel that both

parties agree that the only issue is a matter of law, thus a jury trial is not necessary.

(See 2CR250 (exhibit1) / App. I).

       Subsequent to the summary judgment ruling, but prior to the execution of

the Final Judgment, Rocky filed a Motion For New Trial and/or Modification of

Judgment which was overruled. (2CR237). As seen by the Motion For New Trial

and/or Modification of Judgment, Rocky failed to address the issue of ambiguity.

(See id.).


                                               20
                      SUMMARY OF THE ARGUMENT

      In accordance with the Texas Supreme Court opinions referenced herein, it

is apparent that the trial court did not err in granting summary judgment and

finding that (1) the 1975 Will was a contractual will as a matter of law, and (2) the

language in paragraph IV. “any child or children of this marriage” provided for the

remainder of the estate to be conveyed as a class gift to Rocky Pursley, Harold

Wayne Pursley, Jr., and Rolland Hugh Pursley. See Argument § 2. Specifically, the

language of the 1975 Will mirrors the wills addressed in Dougherty v. Humphrey,

Novak v. Stevens and In re Estate of Johnson wherein both the Texas Supreme

Court and Appellate Court held that the language contained in the wills was

sufficient to prove that the wills were contractual. See Dougherty v. Humphrey, 424

S.W.2d 617, 619 (Tex. 1968); Novak v. Stevens, 596 S.W.2d 848, 851-52 (Tex.

1980); See In re Estate of Johnson, 781 S.W.2d 390, 392 (Tex.App. –Houston

1989, writ denied).

      Further, the trial court did not err in granting summary judgment finding that

Mildred F. Pursley’s 2007 Will and 2010 Codicil breached the terms of the 1975

Will. In the present case, the 1975 Will (which was agreed upon and executed by

both Harold W. Pursley and Mildred F. Pursley) was a contractual will due to the

fact that: 1) the 1975 Will was jointly executed by both Harold W. Pursley and

Mildred F. Pursley; and 2) the 1975 Will contained a comprehensive plan for



                                         21
disposition of all their “worldly affairs” to Rocky Pursley, Harold Wayne Pursley,

Jr., and Rolland Hugh Pursley as a class gift.1 (1CR57 (exhibit A) / App. A).

         Rocky’s argument is that the term “or” gave Mildred the right to unilaterally

disregard her husband’s wishes and “the option of whether to give the property to

one or all children.” See Appellant’s Brief at 32. However, Rocky’s analysis

ignores the principles relating to class gifts and the well-recognized legal meaning

of the language “any child or children.” See Argument § 2. b. 2.; see Texas

Estates Code § 201.002 (b)(2) & (b)(3) (utilizing the phrase “child or children”)

(emphasis added).

         Further, in accordance with Houston v. Schuhmann, the gift vested in the

three children at the time of Harold’s death, subject to any after-born children. See

Houston v. Schuhmann, 92 S.W.2d 1086, 1089 (Tex.Civ.App.—Amarillo 1936,

writ ref’d) (internal citations omitted). The gift therefore had vested in Harold, Jr.,

Rolland, and Rocky on May 10, 1980, the date of their father’s death. As such, the

three children could not later be divested of their vested interest. Any subsequent

will or codicil revoking Harold Jr.’s and/or Rolland’s vested interest in the

property would in fact be in violation of the distribution of property under the 1975

Will.
1
  The two prong test used to determine whether a comprehensive plan exists, as relied on in Reynolds v. Estate of
Benefield, is as follows: (1) the gift to the survivor is not absolute and unconditional, even though it may initially
appear to be so; and (2) the balance remaining from the estate of the first to die and the estate of the last to die is
treated as a single estate and jointly disposed of by both testators in the secondary dispositive provisions of the will.
Reynolds v. Estate of Benefield, 995 S.W.2d 885, 887 (Tex. App.—El Paso 1999, pet. denied) (citing Wiemers v.
Wiemers, 683 S.W.2d 355, 356 (Tex. 1984).



                                                           22
      As stated in the Statement of Facts: 1) Harold W. Pursley fully performed by

abiding by the 1975 Will until his ability to amend it was terminated by death; 2)

Mildred F. Pursley caused the 1975 Will to be probated in the Estate of Harold W.

Pursley; 3) Mildred F. Pursley acted as the Independent Executrix of the Estate of

Harold W. Pursley, in accordance with the 1975 Will; and 4) Mildred F. Pursley

accepted substantial benefits by probating the 1975 Will. See SOF § 1. Thus, under

the reasoning of the Texas Supreme Court in Wiemers v. Wiemers, it would be

manifestly unjust to permit Mildred F. Pursley, the surviving spouse, to disavow

the 1975 Will. See Wiemers v. Wiemers, 683 S.W.2d 355, 356 (Tex. 1984)

(quoting Weidner v. Crowther, 301 S.W.2d 621, 624 (Tex. 1957)).

      Lastly, Rocky waived any right to appeal the issue of ambiguity. See

Argument § 1. In the alternative, if this Court finds that Rocky sufficiently plead

ambiguity and that his claim was not waived, the terms of the 1975 Will are not

ambiguous. Specifically, the 1975 Will is so worded that it can be given a “certain”

or “definite legal meaning or interpretation.” Lewis v. E. Texas Fin. Co., 146

S.W.2d 977, 980 (Tex. 1941).

      In conclusion, the 1975 Will made a class gift to all the children of the

marriage. The use of the words “any” and “or” certainly did not eliminate the class

gift, nor did it make a disposition to only one or two children proper. The members

of the class living at the time (the three sons) received a vested interest at the death



                                           23
of Harold W. Pursley. Subsequently, at the death of Mildred F. Pursley, the class

was ascertained. Therefore, Mildred F. Pursley’s changing of the dispositive

provision to anyone other than all three children is a violation of the terms of the

1975 Will. Due to the fact that Mildred F. Pursley had no authority or power to

revoke the 1975 Will, the 1975 Will is binding upon the Estate of Mildred F.

Pursley,   rendering    all   other   subsequently   executed,    inconsistent   wills

unenforceable.

      As such, the trial court did not err in imposing a constructive trust in favor of

the devisees of the 1975 Will to the extent necessary to enforce the terms of the

1975 contractual Will, thus this Court should affirm the trial court’s ruling.




                                          24
                                  ARGUMENT

I.    ROCKY WAIVED              ANY     APPEAL        OF    THE      ISSUE     OF
      AMBIGUITY.

      Rocky waived any right to appeal the issue of ambiguity by: (1) failing to

sufficiently plead ambiguity; (2) conceding that ambiguity was not an issue by

agreeing that there were no fact issues to be decided by the jury; (3) failing to

present evidence and request a ruling from the trial court regarding the issue of

ambiguity; and (4) failing to incorporate a complaint as to ambiguity in his motion

for new trial.

      A.      Rocky Failed to Specifically Plead Ambiguity.

      Rocky failed to make any argument of ambiguity in his Motion for

Summary judgment or in any oral arguments to the court. (1CR87, 100, 192, 205).

Significantly, he only vaguely referenced ambiguity as an alternative argument in

one pleading before the trial court’s Order on Motions for Summary Judgment,

without providing any explanation as to what exactly he claimed was ambiguous.

As set forth in detail below, Rocky has failed to properly plead ambiguity.

(1CR95-96).

      Rule 94 of the Texas Rules of Civil Procedure mandates that a party plead

any matter constituting an affirmative defense. See Tex. R.Civ.P. 94. As such, the

Texas Supreme Court has found that failure of a party to properly plead an

affirmative defense constitutes a waiver of that defense. “Ambiguity is an


                                        25
affirmative defense which must be raised at the trial court level.” Gonzales v.

Norris of Houston, Inc., 575 S.W.2d 110, 113 (Tex. Civ. App.—Houston [14th

Dist.] 1978, writ refused n.r.e.).

      The claim of ambiguity in a contract must be raised by the pleadings, and in

the absence of such a pleading the court will not hear evidence as to the intention

of the parties which is different from that expressed in the contract. See Vickers v.

Vickers, 553 S.W.2d 768, 770 (Tex.Civ.App.—Beaumont 1977, no writ) (“Thus, in

the case at bar, the husband not only failed to plead ambiguity in the judgment, he

failed to offer any evidence in support of such contention. Point one is overruled”).

“[I]f a party contends that a written agreement is ambiguous, it too must be

specifically pled.” Barnhill v. Moore, 630 S.W.2d 817, 820 (Tex.App.—Corpus

Christi 1982, no writ).

      The party must set out the specific words and phrases claimed to be

ambiguous, or to be modified or explained by parol evidence, and also set forth the

proposed modifications and explanations. See San Antonio Machine & Supply Co.

v. Allen, 268 S.W. 532, 533 (Tex.Civ.App.—San Antonio 1925, no writ).

      “Issues not expressly presented to the trial court by written motion, answer

or other response shall not be considered on appeal as grounds for reversal.” Tex.

R. Civ. P. 166a. As the Court of Appels in Newmann v. Tropical Visions, Inc.,

expressly stated:



                                         26
       Appellants' fifth point of error claims the release or “express consent” is
       ambiguous. Appellants, however, failed to plead ambiguity in their petition and
       failed to raise it in their response to the defendants' motion for summary
       judgment. They accordingly waived the issue, see Tex.R.Civ.P. 166a(c), and the
       point is overruled.

Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 720 (Tex.App.—Houston [14th Dist.]

1994, writ denied) (emphasis added).

       In Bernard v. L. S. S. Corp., the court of appeals held that where the

appellant failed to plead ambiguity and the questions presented to the trial court

were solely questions of law relating to the interpretation of the contract, the issue

of ambiguity was considered waived. See Bernard v. L. S. S. Corp., 532 S.W.2d

409 (Tex.Civ.App. –Austin 1976, writ ref’d n.r.e.).

       In the present case, Rocky only made one reference to any issue of

ambiguity prior to the trial court’s ruling on Harold Jr. and Rolland’s Motion for

Summary       Judgment.       (1CR95-96).        Specifically,      Rocky’s      “Supplemental

Application for Probate Will” provides as follows:

       The April 29, 1975 will is unambiguous and is not a contractual will and in any
       event the disposition call [sic] for by the April 13, 2007 will and January 13, 2010
       codicil are not inconsistent with and do not breach any alleged contract that is part
       of the April 29, 1975 will. In the alternative, and only in the event that the
       1975 will is determined not to be an unambiguously [sic] noncontractual will
       and that the 2007 will and the 2010 codicil are determined to breach such
       will, then such 1975 will is ambiguous and parol testimony should be
       admitted to demonstrate that it was not intended to be contractual.

(1CR95-96).




                                                27
       As seen by Rocky’s Supplemental Application, in addition to it not making

sense, Rocky wholly fails to satisfy the requirements of Rule 94 and Texas case

law. Specifically, Rocky not only fails to specify the alleged ambiguous potion of

the 1975 Will, but also fails to provide the trial court with the correct meaning or

construction thereof.

       Further, Rocky failed to mention or plead the issue of ambiguity in his

Motion for Summary Judgment, nor did Rocky’s counsel make any oral statement

or present an argument or evidence supporting a claim of ambiguity at any hearing

before the trial court.

       B.     Rocky Conceded that there Are No Fact Issues to Be Decided
              by the Jury.

       Rocky waived his right to claim ambiguity in the 1975 Will by conceding at

a hearing before the trial court that there are no fact issues in this matter. (See

2CR250 (exhibit1) / App. I). “[W]aiver is the intentional relinquishment of a right

actually or constructively known or intentional conduct inconsistent with claiming

that right.” Ohrt v. Union Gas Corp., 398 S.W.3d 315, 329 (Tex.App.—Corpus

Christi—Edinburg 2012, pet. denied) (citing Perry Homes v. Cull, 258 S.W.3d

580, 602–03 (Tex. 2008). “The elements of waiver include (1) an existing right,

benefit, or advantage held by a party; (2) the party's actual or constructive

knowledge of its existence; and (3) the party's actual intent to relinquish the right

or intentional conduct inconsistent with the right.” Id.


                                          28
       On August 20, 2014, Parties attended a pre-trial hearing in the Probate Court

of Hidalgo County. During the hearing, counsel for Harold Jr. and Rolland,

Edmundo O. Ramirez, stated as follows:

       MR: RAMIREZ: Edmundo Ramirez for the movants, Your Honor, We’ve got a
       pretrial, Your Honor, and we have dueling summary judgments, for lack of a
       better term. We’ve argued them, and we’ve briefed them, and both parties agree
       that the only issue is a matter of law, and so we urge the Court to Rule.

       THE COURT: I guess we got these jury trial settings before we realized there was
       going to be a pending motion for summary judgment.

       MR. RAMIREZ: Right, right, we’ve refined it down to summary judgments.

       THE COURT: I have that case on my desk, and I’m going on vacation next week,
       so by Friday I’ll have a ruling for the parties.

       MR RAMIREZ: Thank you.

       MR. MURRAY: Thank, Your Honor.

(2CR250 (exhibit1) / App. I). (Emphasis added).

       As seen by the transcript of the August 20, 2014 hearing, Rocky’s counsel

made no objection to Mr. Ramirez’s statement and did not dispute the fact that the

parties agreed that the only issue was a matter of law. In doing so, Rocky

intentionally relinquished his right to allege a claim of ambiguity and present parol

evidence. (See 2CR250 (exhibit1) / App. I).

       C.     Rocky Failed to Present Evidence and Request a Ruling from
              the Trial Court on the Issue of Ambiguity.
       Rocky failed to properly plead ambiguity and failed to properly present his

claim to the trial court for a ruling. In accordance with Rule 33.1 of the Texas




                                              29
Rules of Appellate Procedure, as a prerequisite to presenting a complaint for

appellate review, the record must reflect that:

              (1) the complaint was made to the trial court by a timely request,
              objection, or motion that:

                      (A) stated the grounds for the ruling that the complaining party
                      sought from the trial court with sufficient specificity to make the
                      trial court aware of the complaint, unless the specific grounds were
                      apparent from the context; and

                      (B) complied with the requirements of the Texas Rules of Civil or
                      Criminal Evidence or the Texas Rules of Civil or Appellate
                      Procedure; and

              (2) the trial court:

                      (A) ruled on the request, objection, or motion, either expressly or
                      implicitly; or

                      (B) refused to rule on the request, objection, or motion, and the
                      complaining party objected to the refusal.

       “[A] person seeking to establish ambiguity in a written contract has the

burden of pleading the ambiguity by setting out that portion of the contract that it is

claimed is ambiguous, and definitely pleading the meaning or construction thereof

as relied on by him.” Skyline Furniture, Inc. v. Gifford, 433 S.W.2d 950, 954

(Tex.Civ.App.—El Paso 1968, no writ).

       In the present case, Rocky not only failed to state the grounds with

“sufficient specificity,” but also wholly failed to present the claim of ambiguity to

the trial court for a ruling.

       D.     Rocky Failed to Incorporate a Complaint as to Ambiguity in
              his Motion for New Trial.



                                               30
      An affirmative defense that is not pleaded or proved and on which findings

are not obtained is waived and cannot be preserved by raising the affirmative

defense for the first time in a motion for new trial. See Hamm v. Millennium

Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex.App.—Houston [1st Dist.] 2005,

pet. denied).

      Despite the fact that Rocky failed to bring the ambiguity complaint to the

trial court’s attention during the hearing on the motions for summary judgment,

Rocky could have preserved the ambiguity complaint by incorporating it in his

motion for new trial. However, the complaint was not preserved, as Rocky failed to

discuss or even mention the ambiguity complaint in his “Motion For New Trial

and/or to Modify Judgment.” (2CR237).

II.   THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE 1975
      WILL WAS A CONTRACTUAL WILL DUE TO THE FACT THAT
      THE 1975 WILL WAS JOINTLY EXECUTED AND SETS FORTH A
      COMPREHENSIVE PLAN TO DISPOSE OF ALL THE PROPERTY
      OWNED BY HAROLD W. PURSLEY AND MILDRED F. PURSLEY.

      A.        Introduction.

      In Texas, a pre-1979 will is a contractual will if it is jointly executed and

sets forth a comprehensive plan to dispose of all the property owned by the parties.

See Odeneal v. Van Horn, 678 S.W.2d 941, 942 (Tex. 1984). A comprehensive

plan provides for the disposition of property on the death of one of the parties and




                                         31
upon the death of both parties. The two prong test used to determine whether a

comprehensive plan exists is as follows:

      (1) the gift to the survivor is not absolute and unconditional, even though it may
      initially appear to be so; and (2) the balance remaining from the estate of the first
      to die and the estate of the last to die is treated as a single estate and jointly
      disposed of by both testators in the secondary dispositive provisions of the will.

Reynolds v. Estate of Benefield, 995 S.W.2d 885, 888 (Tex.App.—El Paso 1999, pet.
denied).

      There is no law mandating that a contractual will executed prior to 1979

must expressly recite that a contract exists. Under Section 252.004 of the Texas

Estates Code, contractual wills executed after September 1, 1979 must state that a

contract exists. There is no such corollary provision for contractual wills executed

prior to 1979, such as the 1975 Will at issue here. Wiemers, 683 S.W.2d at 356

(stating that only contractual wills executed on or after September 1, 1979 must

expressly recite that a contract exists) (citing Tex. Estates Code Ann. § 254.004).

However, despite this fact, Rocky still argues that “no law prohibits the court from

considering the fact that the 1975 Will makes no reference to any sort of contract.”

See Appellant Brief at 35. Rocky’s argument is without merit. Id.

      B.     Harold W. Pursley and Mildred F. Pursley Jointly Executed the
             1975 Will.

      Harold W. Pursley and Mildred F. Pursley executed the same will, “being of

sound mind, memory and understanding in view of the certainty of death and

the uncertainty of life, and being desirous of making the best disposition of our




                                               32
worldly affairs, do hereby make and publish this our Last Will and

Testament,” at the same time and place, and before the same witnesses. (1CR57

(exhibit A) / App. A). (Emphasis added). It is unmistakably apparent from the four

corners of the document that Harold W. Pursley and Mildred F. Pursley jointly

executed the 1975 Will.

      C.     The 1975 Will Contained a Comprehensive Plan to Dispose of All
             the Property Owned by the Parties.

      As stated above, the two prong test used to determine whether a

comprehensive plan exists, as relied on in the Reynolds case, mandates that the gift

to the survivor not be absolute and unconditional, and the balance remaining from

the two estates be treated as a single estate and jointly disposed of in the will. See

Reynolds, 995 S.W.2d at 887.

             C. 1. The 1975 Will Provided for a Gift to the Survivor which
                   Was Not Absolute or Unconditional.

      For the convenience of this Court, Harold Jr. and Rolland provide the

following charts comparing the terms of the 1975 Will with the terms of similar

wills which the Texas Supreme Court and the Texas Appellate Courts have held to

provide gifts to survivors which were not absolute and unconditional and

incorporate sufficient language, on their face, to evidence contractual wills.




                                          33
                  The Pursley 1975 Will* / The Will in Dougherty v. Humphrey

*It is our will and desire that the survivor of us, Harold W. Pursley or Mildred F. Pursley,

It is our will and desire that the survivor of us, J. W. Dougherty or Callie Dougherty,

*as the case may be, shall, with the rights and authority below given, have all the

as the case may be, shall, with the rights and authority below given, have all the

*estate of every description, real, personal or mixed, which either of us may own

estate of every description, real, personal, or mixed, which either or both of us, may own,

*to be used, occupied, enjoyed, conveyed and expended by and during the life of

to be used, occupied, enjoyed, conveyed and expended by and during the life of

*such survivor, as such survivor shall desire and that upon the death of such survivor

such survivor, as such survivor shall desire, and that upon the death of such survivor

*any of such estate then remaining shall go to and vest in any child or children

any of such estate then remaining shall be divided equally among the persons following

*of this marriage.

Mrs. Nellie May Woods, Mrs. Vera Bidwell, Mrs. Leola Williams, Miss Callie Lee Daugherty,
Sam Dougherty and Basil Daugherty.

Dougherty, 424 S.W.2d at 619.

In Dougherty, the Texas Supreme Court found that the survivor “held the property

as a life tenant with the right to dispose of the property in any way he say fit during

his lifetime,” with the restriction that any property remaining at his death would

pass to the named-children. Id. Thus, the Texas Supreme Court held that the

survivor was bound by the provisions of the will as to any property covered by the

will which was remaining at his death. Id.




                                                 34
Novak v. Stevens, 596       It is our will and desire that the survivor of us P. Y. Tate or
S.W.2d 848, 851-52 (Tex.    Jessie Marie Moore Tate, as the case may be, shall with the
1980).                      rights and authority below given, have all the estate of every
                            description, real, personal or mixed which either or both of us
                            may own, to be used, occupied, enjoyed and conveyed and
                            expended and give deeds, bill of sale or dispose of in any manner
                            that the survivor may see fit to do during the life of such
                            survivor, and that upon the death of such survivor, any of the
                            said estate then remaining shall be given to the following
                            person: RHONDA RAY MYRICK, the daughter of Eddie Ray
                            Myrick, subject to the following conditions, WITHOUT BOND


In Novak, the Texas Supreme Court provided the following explanation:
      We reverse the judgments of the courts below and construe the 1968 will as a
      contract which should be enforced by impressing a constructive trust upon
      the property in the Tate estate.

Novak, 596 S.W.2d at 851-52 (emphasis added).



In re Estate of             It is our will and desire that the survivor of us, JAMES
Johnson,781 S.W.2d 390,     LOURINE JOHNSON, SR., or EMMA JEAN OLDHAM
392 (Tex.App.—Houston       JOHNSON, as the case may be, shall, with and subject to the
[1st Dist.] 1989, writ      exceptions hereinafter made, have all of the property, real,
denied).                    personal and mixed and of every kind and description which
                            either or both of us may own, jointly or separately, or to which
                            we may be entitled, at the time of the death of the first of us, to be
                            owned in fee simple and full ownership by such survivor,
                            however, any of such property remaining at the time of the death
                            of the survivor of us to pass and be owned in accordance with the
                            provisions hereinafter set forth in this Will.


In In re Estate of Johnson, the Houston Court of Appeals found that the language

of the will did not grant the survivor an absolute and unconditional gift and was

sufficient on its face to establish a contractual will. In re Estate of Johnson, 781

S.W.2d at 392.



                                              35
      As referenced above, Section IV of the 1975 Will starts out by outlining the

life estate: “It is our will and desire that the survivor of us, Harold W. Pursley or

Mildred F. Pursley, as the case may be, shall, with the rights and authority below

given, have all the estate of every description….to be used, occupied, enjoyed,

conveyed and expended by and during the life of such survivor, as such survivor

shall desire.” (1CR57 (exhibit A) / App. A). (Emphasis added).

      It is well recognized in Texas that “[w]here the language of the will

manifests the intention of the testator to pass the right to possess, use or enjoy

property during his life, a life estate is created.” Alviar v. Gonzalez, 725 S.W.2d

297, 299 (Tex.App.—Corpus Christi 1986, writ ref'd n.r.e.) (citing Ellis v. Bruce,

286 S.W.2d 645, 649 (Tex.Civ.App.—Eastland 1956, writ ref'd n.r.e.)). In the 1975

Will at issue, it is apparent that the survivor of Harold W. Pursley and Mildred F.

Pursley was to receive and enjoy all property, “during the life of such survivor.”

(1CR57 (exhibit A) / App. A).

      Further, a life estate is not converted into a fee simple merely because the

life tenant is given the power of full disposition. In Edds v. Mitchell, the Texas

Supreme Court explained as follows:

      Important also is the rule established by the decisions in this state and in the
      great majority of the other states that the added full power of disposition
      given to the life tenant…does not raise the life estate to a fee.


Edds v. Mitchell, 184 S.W.2d 823, 825 (Tex. 1945) (emphasis added) (citing Weir v.
Smith, 62 Tex. 1, 9 (Tex. 1884) and Caples v. Ward, 345 S.W. 856, 858 (Tex. 1915)).



                                            36
      In Alviar v. Gonzalez, the Corpus Christi Court of Appeals discussed the

creation of a life estate for the purposes of finding whether a contractual will

exists. In Alviar, the property was given to the survivor “to be used, occupied,

enjoyed, conveyed and expended by and during the lifetime of such survivor, as

such survivor shall desire.” Alviar v. Gonzalez, 725 S.W.2d 297, 298 (Tex.App.—

Corpus Christi 1986, writ ref'd n.r.e.) (emphasis added). The court in Alviar held

that the will left a life estate in the survivor even though the survivor had the full

power of disposition. See id. at 299 (holding “the will conveyed a life estate to the

surviving spouse, with the additional right to expend or dispose of the property.”).

As seen by the terms of the 1975 Will, the language in Alviar is wholly consistent

with the language used in the will at issue. (1CR57 (exhibit A) / App. A).

      In the Odeneal v. Van Horn case, Parkes Van Horn and Virginia Van Horn

executed a will, with similar provisions as the 1975 Will at issue, where the

survivor of the two was to receive:

      [A]ll property, real, personal and mixed, both community and separate, that we
      may own at the time of the death of the first of us to die so that the survivor of us
      shall have, own and hold all such property for and during his or her natural life
      with remainder in fee simple upon the death of the survivor to W. CLYDE
      ODENEAL.

Odeneal, 678 S.W.2d at 942.




                                               37
      In holding that the will in Odeneal was contractual and binding, the court

found this was “language on its face which has been found to evidence an intent to

contract.” Id.

      Therefore, in accordance with the opinions in Novak, Dougherty, Edds, In re

Estate of Johnson, Odeneal, Alviar and Reynolds, the terms contained in the 1975

Will expressly show that the parties created a gift to the survivor which was not

absolute or unconditional, and which was created with the intent to be bound by

such disposition. Accordingly, the 1975 Will satisfies the first prong of the

Reynolds test.

                   C. 1. a.     Rebuttal of Rocky’s Argument Regarding
                                Absolute and Unconditional Gifts.

      In complete disregard for the Texas Supreme Court opinions cited above,

Rocky alleges that “it is nonsensical to construe the 1975 Will as contractual.” See

Appellant Brief at 38. (Emphasis added). Specifically, Rocky alleges that because

the language in the 1975 Will gives the survivor the right of full disposition,

Harold, Jr., and Rolland’s “reading would be absurd and arbitrary,” as the 1975

Will must be construed as giving fee simple to the survivor. See Appellant Brief at

38. (Emphasis added).

      Rocky not only fails to provide any supporting authority for this position,

but he also makes an argument that is in direct conflict with the Texas Supreme




                                         38
Court’s opinion that giving the life tenant full disposition does not raise the life

estate to a fee simple. See Edds,184 S.W.2d at 825; Dougherty, 424 S.W.2d at 619.

             C. 2. The Balance Remaining at the Survivor’s Death Is Jointly
                   Disposed of in the Secondary Dispositive Provisions of the
                   1975 Will.

      The remainder of the estate is expressly disposed of under the terms of the

1975 Will. Specifically, the 1975 Will states “that upon the death of such survivor,

any of such estate then remaining shall go to and vest in any child or children of

this marriage.” (1CR57 (exhibit A) / App. A). The above-stated terms

unconditionally show that the 1975 Will provided for a disposition, by class gift, of

the remaining estate of both Harold W. Pursley and Mildred F. Pursley after the

survivor of the two had passed away. (Id.).

      “The most common class designation is ‘children.’” 9 Tex. Prac., Texas Law

Of Wills § 30.4 (3d ed.). The term “child or children” implies the widest sense, an

offspring of either sex and of any age, designating those persons who are entitled

to receive the one-half of the estate under the law of descent and distribution. See

Morris v. Williams, 92 S.W.2d 541, 543 (Tex.Civ.App.—Dallas 1936, writ ref’d).

      A devise constitutes a “class gift” when it grants property to a group of

persons “bearing a certain relationship to the testator or to each other.” Wilkes v.

Wilkes, 488 S.W.2d 398, 403 (Tex. 1972). Those included in the group satisfy the




                                         39
requirement “when they can be designated by the same general name as

…‘brothers’ or ‘sisters.’” Id.

       “A ‘class,’ as used in the law of wills, is where several persons answering

the same description sustain the same relation to the legacy so that one word

describes them all; each takes an equal share in the property, and each takes

originally, and not by way of substitution or derivatively, and each takes

absolutely.” Hagood v. Hagood, 186 S.W. 220, 225 (Tex.Civ.App.–Fort Worth

1916, writ ref’d).

       Further, as evidenced in Boone v. Stone, the language “any child or

children” has a definite legal meaning which mandates the distribution to all

persons identified in that class, those being all the children. See Boone v. Stone,

142 S.W.2d 936, 938 (Tex.Civ.App.–Fort Worth 1940, writ dismissed, judgment

correct). In Boone v. Stone, the will provided:

       Item 3. That said Jerome S. Stone shall hold said property and estate, however, in
       trust for my daughter, Helen Stone Anderson, beneficiary, and for the education,
       maintenance and support of any child or children she may have, for and during
       her natural life.

Id. (emphasis added).

       The court in Boone stated that “[b]riefly analyzing the will, we find that

uppermost in testator's mind was the intention to bestow the objects of his bounty

upon his widowed daughter, her child, the minor, and any child or children that

should thereafter be born to her, as well also any child or children that should be



                                              40
born to the son.” Id. at 940 (emphasis added). “So intent was the testator that his

daughter and her children then born or to be born should be amply provided

for, he gave power to the trustee to dispose of the corpus of the estate, if necessary,

for such purposes.” Id. (Emphasis added).

         In Guilliams v. Koonsman, the Texas Supreme Court analyzed the following

devise in the will of J.J. Koonsman, which states as follows:

         I give and devise to my son, Alvin Koonsman, all of my undivided interest in all
         of the remainder of my real property situated in Scurry County, Texas, which I
         may own at the time of my death, and to his child or children if any survive him,
         and in the event of Alvin’s death without issue surviving him, then to my son and
         daughter, Jesse J. Koonsman and Mrs. Cora Guilliams, share and share alike, and
         to their heirs and assigns forever.

Guilliams v. Koonsman, 279 S.W.2d 579, 581 (Tex. 1955).

         [O]n the other hand, if the devise had been to Alvin Koonsman “and to his child
         or children,” without other qualifying or limiting language, and at the effective
         date of the will there was a child or children of Alvin Koonsman in esse, the great
         majority of the courts of this country, following the Second Resolution of Wild's
         case (6 Coke 16b, 77 Eng.Rep. 277), would treat it as vesting the fee title in Alvin
         Koonsman and his child or children in being at the effective date of the will as
         joint tenants or tenants in common.

Id. (emphasis added).

         What is the meaning of the words “and to his child or children if any survive him”
         following the devise to Alvin? We have been cited to and have found no case
         squarely in point. If the words “if any survive him” had been omitted and we were
         to follow the weight of authority, heretofore noted, we would be compelled to
         hold that Alvin and his son, John Billy, took the first estate created as cotenants.
         But those words were not omitted, and we ascribe to them a two-fold effect: first
         they limited the interest of Alvin Koonsman to a life estate, and secondly, they
         operated to make the remainder to be taken by the child or children of Alvin
         contingent rather than vested.1

Id. at 405-6 (emphasis added).

1
 Unlike the 1975 Will, this will contained specific language, “if any survive him,” which cause the gift to be
contingent rather than vested.



                                                         41
       As in Guilliams v. Koonsman and Boone v. Stone, the Appellate Court in

Sullivan v. Skinner held that the legal meaning of the language “any child or

children” mandates the distribution to all children in fee simple. See Sullivan, 66

S.W. 680, 681 (Tex.Civ.App. 1902, writ refused) (emphasis added). The Will in

Sullivan v. Skinner provided as follows:

        For the term of her natural life, with full power to receive, for her sole and
       separate use and no other, the rents and profits of the same, and on her death the
       same to belong to any child or children of the said Harriet Ida Vance
       (Skinner). Should no child or children survive her, then the store and lot to pass to
       the next of kin, as provided by law.

Id. (emphasis added).

In analyzing the will in Sullivan, the Appellate Court stated “[f]rom this it is

apparent that Harriet Ida Vance, now Skinner, took only a life estate in the

property, and the remainder went to her children in fee simple.” Id.

       Further, Section 202.002 of the Texas Estates Code provides a good example

of the use and definite legal meaning of the language “child or children.” See Tex.

Estates Code § 201.002. Specifically, Section 202.002 (b)(2) and (b)(3) state as

follows:

       (2) two-thirds of the personal estate descends to the person’s child or children,
       and the descendants of a child or children; and

       (3) the surviving spouse is entitled to a life estate in one-third of the person’s land,
       with the remainder descending to the person’s child or children and the
       descendants of a child or children.

Tex. Estates Code § 201.002 (emphasis added).




                                                 42
      As set forth in the case law and statute cited above, the terms “any child or

children” and “child or children” have a definite legal meaning which create a

class gift that cannot be limited to any certain children of the class. Accordingly,

any contention that Mildred F. Pursley had the right to distribute the property to all

or just one of her children and that the 1975 Will did not jointly dispose of the

remaining balance in the secondary dispositive provisions is without merit.

      In Houston, the Amarillo Court of Appeals stated:

      The general rule is that a devise or bequest to a class, if no time for vesting is
      fixed will take effect at the death of the testator. But where the will either by
      express words or necessary implication fixes a different time, and the whole
      class is not then completed, the devise or remainder will vest in those then
      existing who will hold it subject to be opened so as to let in after-born persons
      who shall belong to the class at the time fixed by the will for its final completion.

Houston, 92 S.W.2d at 1089 (emphasis added).

      In the present case, the 1975 Will states “any child or children of the

marriage.” (1CR57 (exhibit A) / App. A). At the time of Harold’s death, Harold Jr.,

Rolland, and Rocky, the children of the marriage, were alive. In accordance with

Houston v. Schuhmann, the gift vested in the three children at the time of Harold’s

death, subject to any after-born children. Due to the fact that the gift had vested in

Harold, Rolland and Rocky on May 10, 1980, the date of their father’s death, the

three children could not later be divested of their vested interest.

                     C. 2. a.       Rebuttal of Rocky’s Argument Regarding the
                                    Remaining Balance Being Jointly Disposed of in
                                    the Secondary Dispositive Provisions of the
                                    1975 Will.


                                               43
      Rocky attempts to convince this Court that due to the use of the words “any”

and “or,” the 1975 Will did not jointly dispose of the remaining interest, after the

death of the survivor, in a comprehensive plan because it “left the future interest, if

any, to be determined at the survivor’s discretion.” See Appellant Brief at 36.

Specifically, Rocky argues that because the language does not give the remaining

estate to any particular child, the 1975 Will “did not jointly dispose of that

remaining interest in a comprehensive plan.” See Appellant Brief at 36.

      Next, Rocky attempts to muddy the waters by arguing that the 1975 Will

fails to “give the alleged remainder interest to any person or persons in specifically

defined shares” because it does not incorporate language such as share and share

alike, equally or divided equally. See Appellant Brief at 37.

        Not only do Rocky’s arguments lack supporting authority, they are in

conflict with the authority cited above. Thus, these arguments are without merit.

As evidenced by the numerous cases cited above, the language “any child or

children” and “child or children” has a definite legal meaning which mandates the

distribution to all persons identified in that class, e.g., all the children. See

Argument § C. 2.

      Further, contrary to Rocky’s contention, a class gift is not required to “give

the alleged remainder interest to any person or persons in specifically defined

shares.” See Appellant Brief at 37. Instead, the Texas Supreme Court has held that


                                          44
it is presumed that a class gift is divided equally amongst the members of the class.

See Sinnott v. Gidney, 322 S.W.2d 507, 512 (Tex. 1959). (“[I]n case of real doubt

as to the meaning of a will, the law favors a construction that gives equal

treatment to all heirs of the same class”) (emphasis added).

       “There is abundant authority to the effect that words in a will stating that the

persons are to take ‘equally’ or ‘share and share alike’ or ‘divided equally’ are

without significance on the question of a class gift.” Sanderson v. First National

Bank in Dallas, 446 S.W.2d 720, 725 (Tex.App. — Dallas 1969, writ ref’d n.r.e.)

(emphasis added).

       “It is well accepted that the transferor is presumed to have intended each

member of the class to share equally in the subject matter of the gift.” Restatement

(Third) of Property (Wills & Don. Trans.) § 14.2 TD No. 4 (2004) at Comment a.

(citing Lewis M. Simes & Allan F. Smith, Law of Future Interests § 740 (2d ed.

1967 & Current Supp.)). As stated in the Restatement (Third) of Property (Wills &

Don. Trans.) (2011), which Rocky attached to his brief as Tab I of the Appendix,

“[i]n the case of a single-generation class gift, the transferor’s presumptive intent is

that each member of the class is to share equally in the subject matter of the gift.”

See Appellant Brief Tab I of the Appendix at comment a.

      Accordingly, the fact that the 1975 Will does not use language such as

“share and share alike,” “equally,” or “divided equally” is insignificant. Further,



                                           45
even if the 1975 Will did contain language to rebut this presumption, which it does

not, the Texas Supreme Court has specifically held that “[i]n case of real doubt as

to the meaning of a will, law favors a construction that gives equal treatment

to all heirs of the same class.” Sinnott, 322 S.W.2d at 512.

       Therefore, Rocky’s allegation that the 1975 Will did not jointly dispose of

that remaining interest in a comprehensive plan is without merit.

III.   THE TRIAL COURT DID NOT ERR IN HOLDING THAT THE 2007
       WILL AND 2010 CODICIL BREACHED THE TERMS OF THE 1975
       WILL.

       A.    The 1975 Will Provided a Class Gift to Rocky, Harold Jr., and
             Rolland in Equal Shares.

       As evidenced by the authority cited in Argument Section II, it is apparent

that the 1975 Will provided for a class gift, in equal shares, to all the children of

the marriage which were alive at Harold W. Pursley’s death. Therefore, Mildred F.

Pursley’s 2007 Will and 2010 Codicil, which distributes the majority of the estate

to Rocky with a minor percentage to Rolland and fails to provide any disposition

of the estate to Harold Jr., wholly breached Paragraph IV of the 1975 Will. (1CR57

(exhibit A) / App. A, 77 (exhibit G) / App. G, 83 (exhibit H) / App. H).

       B.    The 1975 Will Became Effective Upon the Probate of the Will and
             Members of the Class Were Vested at the Time of Harold W.
             Pursley’s Death.

       A contractual will becomes effective immediately upon probating the will

when the first spouse dies. See Lorenz v. Janssen, 116 S.W.3d 421, 425


                                         46
(Tex.Civ.App.—Corpus Christi 2003, no pet.). Therefore, the rights of the

beneficiaries under a contractual will can be declared by a court in spite of the

continued life of the surviving spouse. See id. In Lorenz v. Janssen, the Corpus

Christi Court of Appeals held that the rights of all beneficiaries and remaindermen

who took under the contractual will vested at the time the surviving spouse

probated the will following the death of the first spouse. See id. at 426. This

created a “present interest” in the grandchildren while the surviving spouse kept

possession of her life estate. See id. at 425-26.

      Further, the court in Houston v. Schuhmann stated the following:

             The general rule is that a devise or bequest to a class, if no time for
             vesting is fixed will take effect at the death of the testator. But
             where the will either by express words or necessary implication
             fixes a different time, and the whole class is not then
             completed, the devise or remainder will vest in those then
             existing who will hold it subject to be opened so as to let in after-
             born persons who shall belong to the class at the time fixed by the
             will for its final completion.

      Houston, 92 S.W.2d at 1089 (emphasis added).

      In the present case, the 1975 Will states that all the estate remaining at the

death of the survivor “shall go to and vest in any child or children of this

marriage.” (1CR57 (exhibit A) / App. A). Under the general rule, all three sons had

a vested interested at the death of Harold W. Pursley. According to the court in

Houston v. Schuhmann, the gift will vest in those existing at the time of the testator

(here, Harold W. Pursley)’s death, subject to any after-born children. See Houston,




                                               47
92 S.W.2d at 1089. Further, nothing in the 1975 Will indicates that surviving

Mildred F. Pursley was a condition precedent to vesting. (1CR57 (exhibit A) /

App. A). Therefore, the three sons acquired a vested interest on May 10, 1980, the

date of their father’s death.

      Thus, although the class membership may not yet be ascertained, all three

children of Harold W. Pursley and Mildred F. Pursley acquired a vested interest at

Harold W. Pursley death. In accordance with Houston v. Schuhmann, due to the

fact that the gift had vested in Harold Jr., Rolland and Rocky on May 10, 1980, the

date of their father’s death, the three children could not later be divested of their

vested interest. See Houston, 92 S.W.2d at 1089. Therefore, any subsequent will or

codicil revoking Harold Jr.’s and/or Rolland’s vested interest in the property would

in fact be in direct breach with the distribution of property under the 1975 Will.

      C.     The Class Membership Under the 1975 Will Was Ascertained at
             the Time Fixed for Distribution.

      Texas law presumes class membership is ascertained at the death of the

testator if the will established no other time for ascertainment. See id. In cases such

as the one at bar, where the will provides that distribution to the class will not

occur until the expiration of a life estate, the class membership will not be

ascertained until the time fixed for distribution. See id. This is in harmony with the

analysis under Houston v. Schuhmann, in that here the existing class members




                                          48
(Harold Jr., Rolland, and Rocky) are vested, subject to any after-born class

members that may be ascertained later.

      In the present case, at the death of Mildred, the class members were

ascertained. Specifically, the class members ascertained were Harold Jr., Rolland,

and Rocky. Therefore, any subsequent will or codicil revoking Harold Jr.’s and/or

Rolland’s interest in the property would in fact be in direct breach of the

distribution of property set forth in the 1975 Will.

      D.     Rebuttal of Rocky’s Argument that the Plain Language of the
             1975 Will Demonstrates there Was No Breach.

      Rocky argues that “[t]he 1975 Will provides in Paragraph IV that upon death

of the survivor, the “estate then remaining shall go to and vest in any child or

children of this marriage. That is exactly what happened.” Appellant Brief at 24.

(Emphasis added). In making this argument, Rocky’s primary contention is that

“[t]he word ‘or’ is disjunctive. Thus, the 1975 Will gave the survivor of Mildred

and Harold, Sr., the option of devising the property to one or more of the children

of the marriage.” Id. at 29. Rocky cites the rules of construction which he contends

support his allegations.

      Harold Jr. and Rolland do not dispute the rules of construction cited by

Rocky. However, it is apparent that Rocky’s analysis is in direct conflict with the

same rules on which his argument is based. For example, the rules of construction

mandate that “the court must give the words used their plain and ordinary


                                          49
meaning,” and that “[c]ourts are not permitted to construe the plain language of a

contact to make it embrace something it was not intended to include.” Id. Here, the

authority cited in Argument Section II. clearly supports the trial court’s ruling that

the plain and ordinary meaning of “any child or children” implies a class gift to all

the living children of the marriage. Argument § II. Thus, since “[c]ourts are not

permitted to construe the plain language of a contact to make it embrace something

it was not intended to include,” and “may not rewrite the agreement of the parties

to insert something that the parties could have included but did not,” Rocky’s

contentions that “any child or children” means that Mildred F. Pursley had the

right to unilaterally pick who she wanted to disperse the remainder of the estate to

are without merit. Appellant Brief at 26.

      Also, Rocky states that “[i]n construing a contract, the court’s primary goal

is to ascertain the intent of the parties.” Id. at 25. While the word “or” is in fact

disjunctive, here the language which Harold W. Pursley and Mildred F. Pursley

specifically chose to incorporate into the 1975 Will, as seen by the wills referenced

in Argument Section II, has a very specific and definite legal meaning. See

Argument § II.

      Rocky next contends that if Harold W. Pursley and Mildred F. Pursley had

intended to give the property to all three children equally, they could have easily

have said so. Appellant Brief at 29. “This is especially true since the will was



                                            50
prepared by an attorney.” Id. While Rocky attempts to show that the use of an

attorney evidences the fact that Harold W. Pursley and Mildred F. Pursley could

have utilized different language, Harold Jr. and Rolland believe that the use of an

attorney reinforces their interpretation of the terms utilized in the 1975 Will. This

is because an attorney would have knowledge of the fact that the language “any

child or children” would convey a class gift in equal shares to Rocky, Harold Jr.,

Rolland, and any after-born child or children. Further, an attorney would know that

even though the word “or” is disjunctive, in the contractual will and trust context,

the legal definition of the particular phrase “any child or children” has a more

specific legal meaning than what Rocky offers to this Court.

        In a last-ditch effort to muddy the waters, Rocky also provides an

inapplicable analogy which is as follows:

        If a contract created a fund for scholarships for any graduate or graduates of
        McAllen High School, the administrators of the fund would have the discretion to
        give a scholarship to one or more graduates.

Id. at 30.

        As this Court can see, this argument is entirely nonsensical and wholly

inapplicable. Rocky’s argument again ignores the case law providing that “any

child or children” has a specific legal meaning in the context of a testamentary

distribution which supersedes Rocky’s interpretation.

        The Texas Supreme Court has held that “where the meaning of the language

used in the will has been settled by usage and sanctioned by judicial decisions, it is


                                              51
presumed to be used in the sense that the law has given to it, and should be so

construed, unless the context of the will shows a clear intention to the contrary.”

Mitchell v. Mitchell, 244 S.W.2d 803, 806 (Tex. 1951) (quoting Corpus Juris, vol.

69, p. 80, Wills, s 1136) (internal citations omitted).

          “[T]his will clearly shows that it was drawn for the testatrix by an attorney,

who was familiar with the decisions of the courts, and he used the technical terms

to carry out the intentions of the testatrix; and it may be assumed that such terms

used in the will were used correctly and intentionally.” Id. (internal citations

omitted).

          Further, Rocky’s argument assumes that an imaginary contract for a

scholarship fund can create a testamentary class gift, which it cannot. Rocky also

fails to take into account that here we are dealing with a contractual will, jointly

executed by a husband and wife who had only three children, not an imaginary

scholarship fund for thousands of students, none of whom have a familial

relationship with the signatories of the contract.

          E.    Rebuttal of Rocky’s Argument that the Rules of Construction
                Demonstrate there Was No Breach.

          As in his previous arguments, Rocky contends that the plain language of the

contract demonstrates there was no breach. Appellant Brief at 30. Further, Rocky

states:




                                            52
       [V]iewing the contract as a whole and harmonizing the various provisions also
       supports the result that the survivor has the option to give the property to one or
       more of the children. This is because Mildred and Harold, Sr., could have
       mandated that the property go equally to all three children, as they did in
       Paragraph V, but they did not do so.

Id. at 30-31.

       However, Rocky fails to recognize that the harmonizing canon may be

utilized by the court “[w]hen provisions of a contract appear to conflict.”

Methodist Hospitals of Dallas v. Amerigroup Texas, Inc., 231 S.W.3d 483, 491

(Tex.App.—Dallas 2007, pet. denied).

       In the present case, the harmonizing canon is inapplicable as the terms of

Paragraphs V and VI do not conflict with each other. (1CR57 (exhibit A) / App.

A). Specifically, the provisions in Paragraph V would not cause the provisions in

Paragraph VI to be of no effect, and vice versa. (See id.). Therefore, they are not

conflicting.

        Instead, in the 1975 Will, Harold W. Pursley and Mildred F. Pursley

decided to incorporate two different provisions for two wholly separate and distinct

situations in relation to their death. Assuming that Harold W. Pursley and Mildred

F. Pursley did in fact “die in the same accident or disaster, or within the same

week,” the terms in Paragraph IV would not preclude the remaining estate to vest

in Harold Jr., Rocky, and Rolland. (See id.).

       While Harold W. Pursley and Mildred F. Pursley could have mandated that

the property go equally to all three children, with legal counsel, it is likely that the


                                               53
language “any child or children” was used to protect against the pretermission

statute. Specifically, if a child of Harold W. Pursley and Mildred F. Pursley had

been born after the 1975 Will was executed and was not otherwise provided for,

the pretermission statute would have required that the after-born child be entitled

to the same portion of the testator’s estate as if the testator had died intestate. In re

Estate of Ayala, 702 S.W.2d 708, 710-11 (Tex.App.—San Antonio 1985, no writ).

Thus, by utilizing this language, Harold W. Pursley and Mildred F. Pursley

ensured that any after-born child, otherwise not provided for, would not take one-

third of the two-thirds life estate in the separate real and personal property of the

first to die, which Harold W. Pursley and Mildred F. Pursley intended to devise to

the survivor. In using the same analysis, if Harold W. Pursley and Mildred F.

Pursley were to in fact die together as contemplated in Paragraph V., the

pretermission statute would not affect the distribution of the life estate to the

survivor, as they would both be deceased and no other child could be born of the

marriage.

      Rocky next argues that “[i]nserting into the contract the restriction that the

property go to all three children equally would also violate the presumption that

because the parties used dramatically different language in Paragraph V and the

provision in question, that difference was intentional.” Appellant Brief at 31.

Harold, Jr. and Rolland do not agree with Rocky’s conclusion. Here, Harold, Jr.



                                           54
and Rolland contend that it is more likely that this language was incorporated into

the 1975 Will in order to provide for any future children of the marriage. Thus, due

to the fact that Harold W. Pursley and Mildred F. Pursley did not have any other

children, the remaining estate is to be devised to the three children in equal shares.

      Finally, Rocky contends that “the tortured construction proffered by Harold

Jr., and Rolland runs afoul of the rule that a contractual will should be construed

narrowly.” Id. at 31. Again, Rocky’s argument is in direct conflict with the rule

being relied upon. Specifically, under the interpretation of both the trial court and

Harold Jr. and Rolland, the terms of the 1975 Will are being construed narrowly in

accordance with the supporting authority cited above. Therefore, construing the

1975 Will to mean that Mildred F. Pursley could pick and choose any or all

children to devise the remaining estate would not only rewrite the agreement, but

would also provide greater rights and authority to Mildred F. Pursley than what

was provided for in the 1975 Will.

      F.     Rebuttal of Rocky’s Argument that the 1975 Will Does Not
             Create a Class Gift.

      Rocky states, “arguing that the bequest is a class gift begs the question by

assuming that all class members are to receive a gift. Instead, as pointed out above,

the use of the disjunctive word ‘or’ clearly gives the survivor the option of whether

to give the property to one or all children.” Id.at 32.




                                           55
      As evidenced by the authority cited in Argument Section II., the language

“any child or children” mandates the distribution to all persons identified in that

class, e.g. all the children. See Arguments § II.

      Rocky argues that “even in the case of a class gift, the presumption that the

bequest is to be divided equally among all class members applies only if the will

does not indicate a different intention.” Appellant Brief at 32.     According to

Rocky, a different intention is unmistakably evidenced by the distinction between

Paragraphs IV’s use of ‘any child or children’ and Paragraph V which named the

children ‘share and share alike.’” Id. at 32-33. In making this allegation, Rocky

purports to rely on Sinnott v. Gidney. Id. at 33; See Sinnott, 322 S.W.2d at 512.

However, Rocky fails to disclose that the Texas Supreme Court in Sinnott v.

Gidney expressly stated “[i]n case of real doubt as to the meaning of a will, the

law favors a construction that gives equal treatment to all heirs of the same

class.” Id. (emphasis added).

      Further, the issues presented in Sinnott v. Gidney are drastically different

from those in the present case. Specifically, the Texas Supreme Court in Sinnott v.

Gidney stated “[t]he question presented by this appeal is whether debts, funeral

expenses, estate taxes and expenses of administration of the estate of Katie

Keliehor, deceased, are payable out of the personal property bequeathed by Item

Second of her will or the real property devised by Item Third.” Id at 509. Further,



                                          56
in analyzing the will, the Supreme Court found that “[t]he present instrument

makes it quite clear, however, that the testatrix did not intend for her heirs to have

equal treatment. She declared that nothing was being left to one brother and then

gave petitioner all of the personal property plus one-fifth of whatever might pass

under the residuary clause.” Id at 512 (basing its finding on language in the Will

stating “I make no bequest to my brother, Joseph E. Keliehor, whom I love very

much”) (emphasis added). Unlike the will in Sinnott v. Gidney, Paragraphs V and

VI in the 1975 Will at issue simply provide for distinct distributions in the event of

different situations. (1CR57 (exhibit A) / App. A).

      Lastly, in making this argument, Rocky again fails to acknowledge the well-

recognized legal principle that “the effect that words in a will stating that the

persons are to take ‘equally’ or ‘share and share alike’ or ‘divided equally’ are

without significance on the question of a class gift.” Sanderson, 446 S.W.2d at 725

(emphasis added). Also, “it is well accepted that the transferor is presumed to have

intended each member of the class to share equally in the subject matter of the gift

(a per capita distribution).” Restatement (Third) of Property (Wills and Donative

Transfers) §14.2 (2011).

IV.   MILDRED F. PURSLEY CAUSED THE 1975 WILL TO BE
      PROBATED AND ACCEPTED THE BENEFITS UNDER IT, THUS
      IT WOULD BE MANIFESTLY UNJUST TO ALLOW HER TO
      DISAVOW IT AND ITS OBLIGATIONS.




                                          57
      Mildred F. Pursley caused the 1975 Will to be probated and accepted a

substantial amount of assets from her husband’s estate. (1CR57 (exhibit A) / App.

A., 61 (exhibit B) / App. B., 67 (exhibit F) / App. F). The Texas Supreme Court

has specifically held that in such situations it would not be equitable to allow only

one party to a contractual will to benefit from it, explaining as follows:

      It would be manifestly unjust to permit the surviving party to the contract to
      disavow it and its obligations, as those obligations are incorporated in their will,
      after the other party has fully performed by abiding by it until his ability to revise
      it has been terminated by death.

Wiemers, 683 S.W.2d at 357 (quoting Weidner, 301 S.W.2d at 624).

      As the Texas Supreme Court has expressly held, “[o]ne party to a mutual

will may not render it unenforceable after the death of the other party by declaring

a revocation” Weidner, 301 S.W.2d at 624.

      In Wiemers, George Wiemers and Ida J. Wiemers executed a joint will in

1951. Wiemers, 683 S.W.2d at 355. When George Wiemers died in 1960, the joint

will was admitted into probate. See id. at 356. The surviving spouse, Ida J.

Wiemers, executed a new will in 1972 which attempted to revoke the 1951 joint

will. See id. Upon her death, the 1972 will was admitted to probate. See id. Suit

was brought to enforce the 1951 will. See id. The Texas Supreme Court held the

1951 joint will was contractual and thus binding on Ida J. Wiemers, explaining as

follows:

      The Wiemers will… disposes of all the real property and distributes that property
      according to a common plan. The Wiemers will does contain reciprocal



                                               58
        provisions, each disposing of “my part and portion” of the 125 acres; however,
        the preceding paragraph expresses George and Ida's joint will and desire to
        distribute “the whole of our real estate.” As we held in Weidner v. Crowther, 157
        Tex. 240, 301 S.W.2d 621 (1957), “[i]t would be manifestly unjust to permit the
        surviving party to the contract to disavow it and its obligations, as those
        obligations are incorporated in their will, after the other party has fully performed
        by abiding by it until his ability to revise it has been terminated by death.”

Id. at 357.

        Here, as seen by the Application For Probate, Harold died without revising

or terminating the 1975 Will. (1CR61 (exhibit B) / App. B). After Harold had fully

performed his obligations under the 1975 Will and his ability to amend it was

terminated by his death, on April 13, 2007, approximately 27 years after the 1975

Will had been probated, in an attempt to disavow the 1975 Will, Mildred F.

Pursley executed the 2007 Will and the 2010 Codicil. (1CR57 (exhibit A) / App.

A, 61 (exhibit B) / App. B, 77 (exhibit G) / App. G, 83 (exhibit H) / App. H). Thus,

under the reasoning of the Supreme Court in Wiemers, it would be manifestly

unjust to permit Mildred, the surviving party, to disavow the 1975 Will.

        Further, in Vickrey v. Gilmore, the Waco Court of Appeals held that the

survivor was without power to execute a subsequent codicil to the joint will when

she caused the joint will to be probated upon her husband’s death and accepted the

benefits from it, explaining:

        After John F. Vickrey died, Belle F. Vickrey caused the joint will to be probated
        and accepted the benefits under it […] it was beyond the power of Belle F.
        Vickrey to make and execute the codicil in question changing said 1954 joint will.

Vickrey v. Gilmore, 554 S.W.2d 36, 38-39 (Tex.Civ.App.—Waco 1977, no writ) (internal
citations omitted).



                                                 59
      In Vickrey, the trial court held, and the Court of Civil Appeals affirmed, that

the 1954 joint will was contractual as a matter of law and thus Belle F. Vickrey

was without power to execute the codicil in question.

      Similar to the facts presented in Vickrey, here 1) Harold W. Pursley and

Mildred F. Pursley executed a joint will in 1975; 2) when Harold W. Pursley died,

Mildred caused the 1975 Will to be admitted to probate; and 3) Mildred F. Pursley

accepted substantial benefits from said will. SOF § 1.

      Therefore, Mildred F. Pursley was without the power to execute any new

will or codicil, due to the fact that the 1975 Will was binding on her and her estate.

V.    IN THE ALTERNATIVE, IF THIS COURT FINDS THAT ROCKY
      SUFFICIENTLY PLEAD AMBIGUITY AND THAT THIS CLAIM
      WAS NOT WAIVED, AS A MATTER OF LAW THE TERMS OF
      THE 1975 WILL ARE NOT AMBIGUOUS.
      As evidenced in the Arguments Section I. A., “a person seeking to establish

ambiguity in a written contract has the burden of pleading the ambiguity by setting

out that portion of the contract that is claimed is ambiguous, and definitely

pleading the meaning or construction thereof as relied on by him.” Skyline

Furniture, Inc., 433 S.W.2d at 954. Specifically, the party must set out in specific

allegations the words and phrases claimed to be ambiguous, or to be modified or

explained by parol evidence, and also set forth those modifications and

explanations. See San Antonio Machine & Supply Co., 268 S.W. at 533.




                                          60
       In the present case, Rocky merely makes a vague reference to ambiguity in

one of his pleadings, his “Supplemental Application for Probate Will.” (1CR95-

96). Rocky wholly failed to set out “in specific allegations the words and phrases

claimed to be ambiguous.” Id. However, even if this Court finds that Rocky’s

pleadings satisfied the requirements in the authority cited above, the terms of the

1975 Will are not ambiguous.

       In discussing the issue of ambiguity the Supreme Court of Texas has

affirmed the following rules:

       If a written contract is so worded that it can be given a certain or definite legal
       meaning or interpretation, it is not ambiguous.

       It follows that parol evidence is not admissible to render a contract
       ambiguous, which, on its face, is capable of being given a definite certain
       legal meaning.

       This rule obtains even to the extent of prohibiting proof of circumstances
       surrounding the transaction when the instrument involved, by its terms, plainly
       and clearly discloses the intention of the parties, or is so worded that it is not
       fairly susceptible of more than one legal meaning or construction.

Lewis, 136 Tex. at 154.

       “A contract is ambiguous only when, after the application of established

rules of construction, the proper meaning of the contract remains genuinely

uncertain.” O'Grady v. Gerald D. Hines, Inc., 683 S.W.2d 763, 765 (Tex.App.—

Houston [14th Dist.] 1984, no writ). “If a contract is so worded that it can be given

a definite and certain legal meaning, it is not ambiguous. When a contract is

susceptible to a legal meaning, construction of the written instrument is one of law



                                               61
for the court.” Manes v. Dallas Baptist Coll., 638 S.W.2d 143, 145 (Tex.App.—

Dallas 1982, writ ref’d n.r.e.).

      As seen by the wills referenced in Argument Section II, the language “any

child or children” has a very specific and definite legal meaning to which the trial

court adhered. See Argument § II; (2CR208-09/App. J., 270-71/App. K).

VI.   CONCLUSION
      In conclusion, the 1975 Will made a class gift to all the children of the

marriage. The use of the words “any” and “or” certainly did not eliminate the class

gift, nor did it make a disposition to only one or two children proper.           The

members of the class living at the time, Rocky, Harold Jr., and Rolland received a

vested interest at the death of Harold W. Pursley. Subsequently, at the death of

Mildred, the class was ascertained. Therefore, Mildred’s changing of the

dispositive provision to anyone other than all three brothers in equal shares is a

violation of the terms of the 1975 Will. Due to the fact that Mildred F. Pursley had

no authority or power to revoke the 1975 Will, the 1975 Will is binding upon the

Estate of Mildred F. Pursley, rendering all other subsequently executed,

inconsistent wills unenforceable.

      Further, Rocky failed to properly plead the issue of ambiguity, and waived

his right to a jury trial. In doing so, Rocky effectively waived his right to an appeal

on the issue of ambiguity. In the alternative, if this Court finds that Rocky’s




                                          62
pleadings satisfied the requirements cited above, the terms of the 1975 Will are not

ambiguous as a matter of law. As the language “any child or children” has a

definite and certain legal meaning.

      As such, the trial court did not err in imposing a constructive trust in favor of

the devisees of the 1975 Will, Rocky, Harold Jr., and Rolland, in equal shares, to

the extent necessary to enforce the terms of the 1975 contractual Will. Therefore,

this Court should affirm the trial court’s ruling.




                                           63
                                     PRAYER

      For the foregoing reasons, Harold Jr. and Rolland respectfully request that

this Court uphold the trial court's November 20, 2014 Final Judgment granting

Harold Jr. and Rolland’s Motion for Summary Judgment. Harold Jr. and Rolland

also request such further relief to which they may be entitled.

                                       Respectfully submitted,
                                               ELLIS, KOENEKE & RAMIREZ L.L.P.
                                               1101 Chicago Avenue
                                               McAllen, Texas 78501
                                               Telephone (956) 682-2440
                                               Facsimile (956) 682-0820

                                               By: /s/ Edmundo O. Ramirez
                                                       EDMUNDO O. RAMIREZ
                                                       State Bar No. 1650142
                                                       eor@ekrattorneys.com
                                                       THOMAS D. KOENEKE
                                                       State Bar No. 11652500
                                                       tdk@ekrattorneys.com
                                                       MINERVA I. ZAMORA
                                                       State Bar No. 24037765
                                                       miz@ekrattorneys.com
                                                       DANIEL KOENEKE
                                                       State Bar No. 24083320
                                                       daniel@ekrattorneys.com
                                               Attorneys for Appellees Harold Pursley,
                                               Jr., and Rolland Pursley




                                          64
               CERTIFICATE OF RULE 9.4(i) COMPLIANCE

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify

that the number of words in this Brief of Appellees, excluding those matters listed

in Rule 9.4(i)(1) is 13,210 words per the word processing program used for its

preparation (Microsoft Word).


                                                         /s/ Daniel Koeneke
                                                           Daniel Koeneke




                                        65
                          CERTIFICATE OF SERVICE

      I certify that the foregoing document was electronically filed with the Clerk

of the Court using the electronic case filing system of the Court. I also certify that a

true and correct copy of the foregoing was served on the following counsel of

record on April 17, 2015 as follows:

Recipient:                         Attorney for:            Served by:

J. Joseph Vale                     Appellant, Rocky         Electronically if available,
jvale@atlashall.com                Pursley                  or by facsimile and e-mail
Charles C. Murray
ccmurray@atlashall.com
Atlas, Hall & Rodriguez, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501


Marlane A. Meyer                   Temporary                Electronically if available,
Mmeyer308@aol.com                  Administrator,           or by facsimile and e-mail
Meyer & Guerrero, L.L.P.           PlainsCapital Bank
308 N. 15th Street
McAllen, Texas 78501




                                                            /s/ Daniel Koeneke
                                                            Daniel Koeneke




                                           66
                   APPENDICES



Tab   Date         Document
A     04/29/1975   1975 Will (Exhibit A)
B     05/20/1980   Application For Probate of Will and Issuance of
                   Letters Testamentary (Exhibit B)
C     06/03/1980   Order Admitting Will to Probate and
                   Authorizing Letters Testamentary (Exhibit C)
D     06/04/1980   Oath (Exhibit D)

E     06/04/1980   Letters Testamentary (Exhibit E)

F     02/10/1981   Inventory, Appraisement, and List of Claims
                   (Exhibit F)
G     04/13/2007   2007 Will (Exhibit G)

H     01/13/2010   2010 Codicil (Exhibit H)

I     08/20/2014   Pre-Trial Hearing Transcript (Exhibit 1)

J     08/22/2014   Order on Motions for Summary Judgment

K     11/20/2014   Final Judgment




                         67
     TAB A

OF THE APPENDIX
       ...!
VtJl




                                                     /?/tl    .,j?
                                11last Dill anh                      Qfest~nt
                                                         OF

                                        HAROLD W. PURSLEY and MILDRED F.


                             We, HAROLD W. PURSLEY and MILDRED F. PURSLEY, husband and

              wife{~   of .the CC?_unty of Hidalgo, State of Texas, being of sound mind, memory and

              understanding in view of the certainty of death and the uncertainty of life, and

          J:e ing desirous of making the best disposition of our worldly affairs, do hereby

              make arl.ptblish this our Last Will and Testament, to-wit:

                                                           I.
                            We do hereby revoke all wills and codicils and testamentary instrument

          heretofore made by us.

                                                          II.

                            We direct that all our just debts, including all expenses of last

          illness and funeral and burial, shall be paid by our Executor as soon as reasonably

         convenient after our death.

                                                         Ill.

                            We hereby direct that no other action shall be had in the County Court

         or ln any other Court in relation to the setUement of or administration upon our

         estate other than the probating and recording of this Will and the return of an

         inventory, appraisement and list of claims.

                                                         IV.

                            It is our will and deslre that the survivor of us, Harold W. Pursley or

        Mildred F. Pursley, as the case may be, shall, with the rights and authority below

        given, have all the estate of every description, real, personal or mixed, which

        either of us may own, to be used, occupied, enjoyed, conveyed and expended by

        and during the life of such survivor, as such survivor shall desire and that upon the

       death of such survivor, any of such estate then remaining shall go to and vest in


        ...2~~~. VJ-<~~                                          ~la'.di/..6 d. /-2~,.
              Harold W. Pursley                 r•              Mildred F. Pursley         (/'
                                                 ,__EIIIII!IX~H~IB1111T-~
        Page I·.of 4 pages

                                                         A                                            57
                                                                                VOi.   3fn,,,.F
                                                                                          u •..., 81




any child or children of this marriage.

                                                v.
             In the event that we shall both die In the same accident or disaster, or

within the same week, then all of such estate of every description, real, personal

or mixed, 'Which either or both of us may own at the time of the first of such deaths,

or 1f the order of such deaths is not ascertained, at the time of either of such deaths

shall without respect to which of us may survive the other, go to and vest !n our

beloved children, HAROLD WAYNE PURSLEY, JR., ROLlAND HUGH PURSLEY and

ROCKY JOE PURSLEY, share and share alike-

                                               VI.

             It is our wllla'ld desire that the survivor of us, Harold     w.   Pursley or

Mildred F. Pursley, whichever the case may be, shall be the Independent Executor

or Executrix of this our Will a:rl of our estate and direct that no bond shall be re-

quired of any Executor or Executr.bc herein appointed.         In the event of both of our

deaths .1n a mutual accident or disaster, or after the death of the survivor of us,

then 1n such event, we hereby appoint an OfflCBrof the First State Bank and Trust of

Edinburg, Hidalgo County, Texas, in whom we repose trust and confidence, as

Independent Executor of this our Will and estate and direct that no bond be required

of him.

            IN TESTIMONY WHEREOF, we have hereunto subscribed and signed thes

presence at Edinburg, Texas, m· the presence of the witnesses whose names are

affixed hereto and whom we lave requested to sign their nmaes hereto as witness,

and ln the presence of said witnesses we have declared and published the foregoing
                              .,,_          AP/f!I'L.-
as our Last Will on the   .e?-       day   of~.          A. D. 1975.




                                               Mildred F • Pursley




Page 2 of 4. pages




                                                                                              58
VOl




                         The foregoing was on this date signed by Harold W. Pursley and

       Mlldred F. Pursley, 1n our presence, and in the presence of each of us, and at the

       time of their subscribing said instrument, they declared that 1t was their Will' and

       at their request and 1n their presence, and in the presence of each other, we have
                                                                                       y.,t              APR/.L-
       subscrlbed our names as witnesses thereto on the                           .:ff -      d~y   of   ~,          A. D.

       1975.




                                                                   Witness

      THE STATE OF TEXAS                      §

       COUNTY OF HIDALGO                      §

                        BEFORE ME, the undersigned authority, on this day personally appeared

      HAROLD W. PURSLEY and MILDRED F. PURSLEY,

      and _ _ __.E..,r..,n...,e=s,.tin=a.._V.._a.....,s:::a...u,.,e~z..__ _ _ _ _ , known to me to be the testators and the

      witnesses, respectively, whose names are subscribed tot he annexed or foregoing

      instrument in their respective capacitites, and all of said persons being by me duly

      sworn, the sald HAROLD W. PURSLEY and MILDRED F. PURSLEY, Testators,

      declared to me and to said witnesses in my presence that said instrument ls their

      Last Will and Testament, and that they had willingly na de and executed i t as their

      free act and deed for the purposes therein expressed: and the witnesses, each on

      his oath stated to me, in the presence and hearing of the said testators, that said

      testators had declared to them that said instrument is their Last Will and Testament,

      and that they executed same as such and wanted each of them to sign i t as a witnes

      and upon their oath each witness stated further that they did sign the same as

      witnesses in the presence of said Testators and at their request, that they were at

      that time each nineteen years of age or over, were lawfully married and were of

      sound mind, and that each of said                   witnesses was then at least fourteen years of ag •

                                                                  ~                              .~


      Page 3 of 4 pages

                                                                                                                              59
           SUBSCRmED AND ACKNOWLEDGED BEFORE ME by the said HAROLD W.

PURSLEY and MILDRED F. PURSLEY, Testators, and SUBSCRmED AND SWORN TO

BEFORE ME by the said    Jennie H. Gonzalez               AND Ernest!na Vasquez
                                                   v.t.     ,4P£/L
- - - - - - - - - - - ' witnesses, on this the &"9 -· day of ~, A. D. !975 •

                             •   -----~~       :.r.'
                                      Notacy Publ!c in and for Hid
                                      Texas.




Page 4 of 4 pages


                                                                                  60
     TAB B

OF THE APPENDIX
                                                                              11\'".•·




    ESTATE CF                                       s         IN 'lHE OCXJNIY a::xJRI' Kr lAW
    HAK>ID W. PURSLE'l                              s         OF
 DICEASID                                           s         HIDAI.ro a:::xJN1Y, TEXAS
                            APPLICATICN .R:R PR::IW\'IE CF WIIL AID
                             ISSU.AriCE CF I.E:ITERS      '!EST~




         Mildred F. Pursley,           (Applicant") furnishes the followinq information
to the Court for the probate of the written Will of Harold W.                                 Pursley
    ("Decedent") and for issuance of Letters Testamentary:

        1.      Applicant is an individual interested 1n this Estate, domiciled
in and residing· at Edinburg, Hidalgo County, Texas.
        2.     Decedent died on May 10, 1980, in Edinburg. Hidalgo County,
Texas. at the age of sixty one (61) years.
        3.      This Court has jurisdiction and venue because Decedent was
domiciled and had a fixed place of r.esidence 1n this county on the date
of his death.
        4.    Decedent owned real and personal property described generally as
home,        cash,   securities,   automobiles,         livestock,    household           goods.   and
personal effects of a probable value in excess of $200,000.00.
'
        5.      Decedent left      a    valld   written    Will    ("Will")       dated    April   29,
1975 which was never revoked and is filed herewith.
        6. The subscribing witnesses to the Will and their present addresses
are Jennie H. Gonzalez, Edinburg, Texas, and Ernestina Vasquez. address
unknown.
       7.     No child or children were born to or adopted by Decedent after
the date of the       wm.




                                                    EXHIBIT

                                                JB                                                       61
..........   ~




•


                        8.   Decedent was never divorded.
                        9.   A necessity exists for- the administration of this estate.
                       10.   Decedent's Will named Applicant to serve without bond or other
                 security as Independent Executrix, in which capacity, Applicant would not
                 be disqualified by law from serving as such or from accepting Letters
                 Testamentary, and Applicant would be entitled to such Letters.
                        WHEREFORE, Applicant prays that citation issue as required by law to
                 all   persons   interested   in   this   Estate;   that   the   will   be   admitted   to
                 probate; that Letters Testamentary be issured to Applicant; and that all
                 other orders be entered as the Court may deem proper.
                                                           Respectfully submitted,


                                                      ~~~JL~
                                                           Dennis E. Hendrix
                                                           P.O. Box 1016
                                                           Edinburg, Texas 78539
                                                           512-381-8496
                                                           ATTORNEY FOR APPLICANT




                                                           -2-




                                                                                                             62
     TAB C

OF THE APPENDIX
.·   ··.,                                                                                                   fiLED
                                                                                                            JU~f     3 1980
                                                                                                     S/u~IUO> ~1!'.           lil.fRK
                                                                                                ~~lfkfQa~, Toaa
                                                                                                -~·-4'¢4 a&~
             ESTATECF                                                     s               IN 'IHE CXlJNlY a:uRT Kr J.A.V
             HAR:JID W PURSLEY                                            s               OF
             DECEASID                                                     s               HID.AI.G:l


                                            ORDER ADMITI'lliG WIIL 'IO P.R:SA'IE ANJ
                                                AIJIH)RI ZlliG      LE'ITERS 'IEST.AMEl\ITAR{



                   On this day came on to be heard the Application For Probate of Will

             and    Issuance         of     Letters          Testamentary             filed     by    Nlildred        F.      Pursley
             ("Applicant") in the Estate of Harold W. Pursley, .I:eceased("Decedent").
                   The Court,         having heard the evidence and having reviewed                                         the Will
            and     the      other        documents          filed       herein,        finds        that     the     allegations
            contained in the Application are true; that notice and citation have been

            given in the rranner and for                          the    length of       time required by               law;       that

            Decedent is dead and that                    four years have not elapsed since the date of
            Decedent's        death;        that       this       Court    has     jurisdiction and                 venue     of    the

            Decedent's        estate;           that    Decedent          left    a    Will     dated April             29,      1975,

            executed      ~th    the formalities and solemnities and under the circumstances

            required by law to rrake it a valid Will;                              that on such date Decedent had

            attained the age of 18 years and v.as of sound mind;                                        that such Will was

            not revoked byDecedent; that no objection to or contest of                                                the probate
            of such Will has been filed; that all of the. necessary proof required for

            the probate of such will has been rrade;                                  that such Will           is entitled              to
            probate ;     that       1n     said       Will ,      Decedent        named       W ldred         F.     Purs 1 ey         as
            Independent Executrix,                 to serve without bond, v.ho is duly qualified and
            not    disqualified            by      law       to    act     as    such         and     to     receive        Letters

            Testamentary;        that       a     necessity exists               for    the     administration              of     this
            estate; and that no interested person has applied for the appointment of
            appraisers and none are deemed necessary by the Cburt.
                   It   is    therefore CEDERID,                   .AD]UCGED JlND DECREED               that       such Will            is

            admitted to probate, and the Clerk of this Cburt is ORDERED to




                                                                  EXHIBIT
                                                         ~~
                                                         .         b
                                                                                                                                             63
•


     record     the Will,   together with   the    Application in the   Minutes of   this
     Court.
          It is further ORDERED,     A~JUDGED       and DECREED that no bond or other
     security 1s required and       that upon the taking and filing of the Oath
     required by law, Letters Testamentary shall issue to Mlldred F. Pursley
     who is appointed as Independent Executrix of Decedent's Will and Estate,
     and no other action shall be had in this Court other than the return of
     an Inventory. Appraisement and List of Claims as required by law.
          SIGNED AND ENTERED this             3,e.o      day of   ~             , 1980.




    ~~J~Jk~
     Dennis E. Hendrix
     P.O. Box 1016
     Edinburg, Texas 78539
     381-8496
     ATTORNEY FOR APPLICANT




                                             -2-




                                                                                            64
     TAB D

OF THE APPENDIX
                                                                                                                         .. ·-·- ---------



                                                                                                                 FILED
                                                                                                                 J:J~I       41980
                                                                                                              SAhlu, ~.,         "a.dtK
                                                                                NO. 14,054

                               ESTA'IE OF                                              s            IN
                                                                                                          ~·-~·'-·
                                                                                                          -~4rw •._.
                                                                                                         mE a:::iJmy   CXXJR.I' AT IAW
                               HAIOID W.             PlJRSI.m{'                        s            OF
                               Da:::::EAS.fD                                           s            Hl.DAIG) c:x:x.JNIY, TEXAS


                                                                                    OA.TH
                                        I      do solemnly swear that the writing wh'ich                    has been offered for
                               probate is              the last Will of Harold            w.   Pursley,    so far      as I know or
                               believe,              and   that   I   will   well   and     truly   perform    all     the    duties      of
                               Independent Executrix of said Will and of the Estate of Harold W.
                               Pursley, Deceased.



                                                                                            %1~~~A
                                                                                                 ~,..
                                                                                          Mildred F. Pursley
                                                                                          Independent Executrix




                                    SWORN TO AND SUBSCRIBED BEFORE ME by MILDRED F. PURSLEY'
                          :this.. . ..3t""s(.. day of June, 1980, to certify which, witness my hand and
                      . ·.·' se·ai<'of.loffice.




_;..··.J~~~~~~i~i~t~ :.
  . . . . . . "· . . ~jJ"'-'

    · .;         (
          't;}~~i{(:~J.:~~:}
                                  •. ~·;. :.   ...
                                                                                             •
                                                                                      ~& ~MIN.ERVA 0. DJJJ11
                                                                                          OtarY PUbUC1il
                                                                                      County, Texas
                                                                                                              andfO~lgo




                                                                                EXHIBIT

                                                                         ID                                                                    65
     TAB E

OF THE APPENDIX
                                                                                        -
               LETI'ERS TESTAMENJ:ARY
                                                                     \

                                 c::::::::::::=:=::=-<<:>>--C::::=::::::>
                                                              No.        14,054




THE STATE OF TEXAS
County of Hlilolgo                                   }        IN COUNTY COURT.
                                                             of Hidalgo County,
                                                                                                AT LAW

                                                                                            Tesa~~



             I, Santo• StJldal'l4, Clerk of the County                      Coure__A:~T_LAW
                                                                                       _ _ _ __


of Hidalgo County, Te%tu, do hereby certify tlud on t1ae ___3_r_d_ _ __

day of      JUNE           , A.. D.   ~9~               MIL@RED F. PURSLEY




      HAROLD 'W. PURSLEY                                                                        -.J___    _,~
----------------------------------------------------·                                          ~al~
and th.m...:Lhe__quollfied aa.__IND
                                _ _EP_.END
                                        __ENT
                                           __ EXE_c_u_TRIX
                                                     _____________


of •aid   ~tate    on the 4t:h    day     of.___....n.,.m~E.,.·_ _ _ _ _ _ _ _ ___;..· A.. D.    1~      so

as the law requires mul that so:ld appointment U. still in full force and ef/ed.

            Git:~en   under my hand mul seal of office                      at   Edinburg, Te:cas the
                                      _4_t_h__.....d...ay   of.___J_UN_E_ _ _ _ _ _ A. D.          19~


                                                            Santos Saldalfo, Clerk,
                                                AT LAW
(Seal)                 County Court -------~Hidalgo County,                                          T~
                       By._____________________________________                                  Dep~.




                                       ROSIE MEDELLIN




                                             EXHIBIT

                                      I          £                                                              66
     TAB F

OF THE APPENDIX
                                                                                          ,···· --·-· ·-:-·   -·    ·-··---~
                                                                                                         ....__: ...---:~ ·~


                                           !)[).   14,054
      ESTATE OF                                      s          IN 'IHE o::IJNlY a:uRl' Nr I.J1&Y
      HAR:XD W. FtJRSI.m:', SR.                      s         OF
      Da::;EASID                                     s         HIDAI.CD COJNIY.      TEXASFILED
                                                                                            FEB 10 1981
                       IN\IEN'IORY, APPRAISB.ENI', AN:> Lisr OF CLAIMS                  &a•• u.:. ~..!it       liLfRK
                           Date of Death:
           The following is a full,
                                                     May 10, 1980

                                          true and complete Inventory and Appraise-
                                                                                     ~~~=
      ment of all personal property and of all real property situated in the
      State of Texas, together      ~th   a List of ClaUn5 due and owing to this
      Estate as of    the date of     death,       which have cane           to   the posesston or
      knowledge of the undersigned.
                                  INV.ENTORY A!ID APPRAISEMENI'

     Real Property (See Schedule A)                                                   203,280.00
     Stocks and Bonds (See Schedule B)                                                 10,302.50
     Accounts Receivable & Cash (See Schedule C)                                       60,210.50
     Insurance Payable to Estate ( Schedule D)                                         11,215.50

..   Jointly OWned Property (Nb Schedule E)                                              l\OifE
     N.tlscellaneous Property     (See Schedule      F)                              .246, 767 .oo

                                                                         /
                                               'Ibtal                                 531,775.50




                                       Lisr OF CLAIMS
          '!here are no claims due or owing               to   the Estate other        than    those
     shown on the foregoing Inventory and Appraisement.
          'Ihe foregoing Inventory, Appraisement and List of Claims should be
     approved and ordered entered of record.
                                                   Respectfully submitted,



                                           ~s2'9JL~
                                            DENNIS E. HEl'DRIX
                                                   Attorney for the Estate
                                                   P.O. Box 1016
                                                   Edinburg, Texas 78539




                                            EXHIBIT

                                       1[:
                                                                                                                   67
 ··--· --- --· ,! - -·· ..•• - ...... -   ..
                                                                                  V!J,t,. 31 P P1   /.3, 7
--·----- ------ -- --··

                                                      SCHEDULE A
                                               ESTATE OF HAROLD W • .PURSLEY
                                                      Real Estate

                     SEPARATE .P.RJPERIY:


                    c::o.MJNI'IY P.OOPERIY:                              Fair Market Value
                    House and 1 acre, Block 246, Lot 5,
                      Texas Mexican Railway Ccmpany
                      Survey, Hidalgo County, Texas                             91,015.00
                    House and 1 acre, Block 246, Lot 5,
                      Texas Mexican Railway Ccmpany
                      Survey, Hidalgo Cbunty, Texas                             11,814.00
                    Equipnent Yard
                    BloCk 246, Lot 5, (5 acres)
                    Texas Mexican Railway Survey,                               32,500.00
                    Soil Pit
                    Block 246, Lot 5, (16.1 Acres),
                      Texas Mexican Railway Survey,
                      Hidalgo Cbunty, Texas                                      1,611.00
                   Farm Land
                        Block 246, Lot 5, (8.72 Acres)
                        Texas Mexican Railway Survey
                        Hidalgo County, Texas                                   23,545.00
                   Farm Land
                       Block 246, Lot 3, (23.45 acres)
                       Texas Mexican Railway Survey
                       Hidalgo County, Texas                                   104,300.00

                   Farm Land
                     Block 246, Lot 13, (8.65 Acres)
                     Texas Mexican Railway Survey
                     Hidalgo County, Texas                                      25,950.00

                  Farm Land
                    Block 248, Lot 11, (38.80 Acres)
                    Block 248, Lot 14, (19.19 Acres)
                    Texas Mexican Railway Survey
                    Hidalgo County, Texas                                      115,825.00

                  '!OrAL .REAL ESTA'IE                                     406,560.00

                 DECEDENT'S 1/2 INI'EREST                                  203,280.00




                                                                                                    68
                                                                     ----- -·- ... _ --· .. --
                                                                               ' .. .  .         ...



                                                                 ·-- -------      -- -· --·--

                                  SCHEDULE B
                            ESTATE OF HAROLD W. PURSLEY
                               STOCKS AND BONDS



SEPARATE .FR:>PERIY:

a::MVNI'IY PKlP.ERIY:                               Fair Market Value
Harold W. Pursley, Sr., Inc.
1000 shares No-Par Value COmmon Stock
Edinburg, Texas   15.60 per share                     15,600.00
Federal Land Bank of Houston
Houston, Texas                                            4,905.00
Edinburg, co-op Gin
8% Perferred Stock at Par Value                            100.00
'Ibtal Stocks and Bonds                               20,605.00
DEC.fDENI''S 1/2 INIEREST                             10,302.50




                                                                                     69
                                                                                                                                                            '··



                                    ·.·· . .          ..
                             .···

                                                                                                    ....
                                                                                                    ··-· ...: -
  .:•:-    -··.   . ;__,._                                                                      :   ....' ..             .·
                                                                                                               ·.. ·-    -~
                                         •.•• .•Ji-    'n                                                                 :•·•.._    (::        I!''

  :· ..   ·····                                                     ''             ... :                    ~   !•7 •••             .,,:.:"'i

                                                                  '• •} o   I '•           ..        .. ,       •.
                                                                                                                                    '!.!··--=· .•••

                                                                                                    j,     •I ..."':-          •;    ''If.:..
.·•: ..                                                    ·' .

           .·.
  .   ... . ·....                                                                                               -...".                          .·· :. .




                                                                                                                                                           70
                                                                                                          . .r
                                                                                         .~.t. 31 g ,o,. /.:3
{ - • • --a• • ••- - o•. "" - - -   •-•
I                                         •   j
                                ~   .         I
    --- ·------··-----.)

                                                            SCHEDULE C
                                                      ESTATE OF HA.ROLD W. PURSLEY"
                                                       MORTGAGES, NOTES AND CASH



                        SEPARA'lE P.RCPERIY:


                       CXMLINI'IY PROPERlY:                                     Fair M!rket Value
                       First State Bank & Trust Co •• Edinburg, Texas
                       Harold Pursley
                       Checking Account Nb. 09-1489-4                                     338.00
                       First State Bank & Trust Co •• Edinburg, Texas
                       Mildred 0. Pursley
                       Checking Account Nb. 00-6705-9                                   1,337.00
                       First National Bank of Edinburg. Edinburg. TExas
                       Harold PUrsley
                       Checking Account Nb. 010-450-7                                       6.00
                       Federal Land Bank Association. Edinburg, Texas                   6,459.00
                       First State Bank & Trust Q)., Edinburg. Texas
                       Savings Account Nb. 01-1219-4                                       72.00
                       Payroll Checks, Harold W. Pursley, Sr., Inc.                       880.00
                      Nbte Receivable
                        ].D. Reavis, Dated March 22. 1979, in the
                       original amount of $120,000.00, payable
                       annually $10,000.00 plus 9% interest.                          111,329.00
                      Total M:>rtgages, Notes and Cash                                120,421.00
                      DEDEDENI' 1 S 1/2 Il'll'EREST                                   60,210.50




                                                                                                          71
                                                                                   -·"···-·
                                                                                     ·. . ..!
                                                                             __ ·-· --                  .
                                                                  ·.......               ......   _ ....i
                                     SCHEDULED
                              EST ATE OF HAROLD W. PURSLEY
                              INSURANCE PAYABLE TO ESTATE



 SEPARA'IE ProPERlY:

   Great Southern Life Insurance COmpany
     Policy No. 531552
     Death Claim Benefit                         1,423.70
     Dividend Accumulations                        423.70
     Total Paid                                                1,423.70

cn.M.JNI'IY ProPERlY:

  American National Insurance COmpany
   Policy No. 05280083
   Death Claim Benefit                          5,000.00
   Dividend Accumulations                          18.00
   Total Paid                                   5,018.00
  GUlf Life Insurance COmpany
  Credit Life Policy No. 11810-734066          14,565.00
Total Carm.mi ty Insurance                     19,583.00
Decedent 1 s 1/2 Ccrmnm1 ty                                   9,791.50
                                                             11,215.50




                                                                                   72
                                                                   VOL    318PAoe141

                                   SCHEDULE F
                            EST ATE OF HAROLD W. PURSLEY
                           OTHER MISCELLANEOUS PROPERTY


SEPARATE ProPERlY:                                            N:111E


cx::M.UNI'IY P.R:P.ERIY:                                Fair Market Value
Household fUrniture                                               3,500.00
Cattle, 7 Cows and 3 Calves                                       3,766.00
Federal   Income~      Withheld for 1980                          2,341.00
Edinburg Coop Gin, Book Credits                                        357.00
Southwestern Life Insurance Cbmpany
  Life Insurance Policy Nb. 6778823
  Mildred 0. Pursley                                                   820.00
DRILLIN:; MACHINERY AN:> EQUIFMENI'
  MOdel 1500 Failing Drilling Rig, Serial
    Nb. ~738Vl24200 on 1978 Olevrolet Truck                     75,000.00
 Mbdel 1500 Failing Drilling Rig, Serial
   No. 903703, on GC Diesel Truck                               30,000.00
 MOdel 1500 Failing Drilling Rig,
   Serial No. 903224                                             8,000.00
 MOdel 1500 Failing Drilling ~g. Serial
   No. 902072, o~ 1955 Mack Diesel Truck                         2,000.00
 Mbdel 120 G Caterpillar Mbtor Grader with Ripper
   and Power Shaft, Serial    Nb. 87V2699                      55,000.00
 MOdel 1150BCase Crawler Tractor with Winch,
   ~Vide Tracks, Serial Nb. 7302728                            15,000.00
 MOdel llSOBCase Crawler Tractor with Winch,
   Serial N0.7304731                                           26,000.00
 MOdel M-100 Allis Olalmers Mbtorgrader wl th Ripper,
   Serial No. 1510                                              8,000.00
 Mbdel 12G Allis Chalmers Loader with 35 yard Bucket,
   Serial No. 221                                              25,000.00
 Mbdel D6C Caterpillar Tractor with Tilt Blade,
   Winch and Power Shaft, Serial NO. 10Kl3634                  60,000.00
Mbdel 5800 Case Backhoe, Serial No. 8953660                    16,000.00
HUeber Steel Wheel Roller                                       1.000.00
Fiat-Allis liB Crawler Tractor with Power Shaft,
   Serial No. 25Ll8772                                         35,000.00
Fiat-Allis llBCrawler Tractor with Winch and
     Tilt Blade, Serial No.25Ll91.56                          50,000.00




                                                                                73
VOL   "318PAGE 142

                                           SCHEDULE F .1
                                     ESTATE OF HAROLD W. PURSLEY
                                    OTHER MISCELLANEOUS PROPERTY


             David Brown Tractor                                       3,500.00
             1 Diesel Engine                                           4,500.00
             Mbdel 471 Diesel Engine                                   3,000.00
            Mbdel 671 Diesel Engine                                    4,000.00
            Air O:::npressor                                           1,200.00
            Lincoln Gas welder                                           450.00

          TRANSR:RrATIQ\1 B;UIFMENI'
            1971 Olevrolet Truck and 38" Float,
               Serial No.SCI631P24963                                 4,000.00
            1977 Olevrolet 1-Ton 4-Wheel Drive 4-Door
               Crew-Cab Truck, Serial No. CKL3472189520               4,000.00
            1978 Olevrolet !-Ton 4-Wheel ·Drive Guston-cab
               Pickup Truck, Serial No. CKL348Bll2644                 4,200.00
            1974 Dodge Pickup Truck                                     225.00
            1976 Dodge Pickup Truck                                     225.00
            1976 Dodge Pickup Truck - 4   \~eel   Drive               3,000.00
            1976 Dodge D-200 Pickup Truck                             1,000.00
            1977 Dodge 3/4 Ton Pickup Truck                           3,000.00
            1977 Dodge Club-cab Pickup Truck                            800.00
            1973 Fork Pickup Truck                                      500.00
            1978 Fork F-250 3/4 Ton 4~eel Drive Supercab
               Pickup Truck, Serial No. X265KBCK598                   4,200.00
            1977 Fork F-250 3/4 Ton $-Wheel Drive GUston Cab,
               Pickup Truck, Serial No. F26HNY47069                   2,000.00
            1969 GMC Diesel 5-Ton Truck Tractor                       3,500.00
            1971 GMC Diesel Truck                                     2,000.00
            1965 International Truck and Lowboy Trailer, Serial
              No. T53742                                              6,500.00
           1974 International Truck Tractor, Serial
              No. 10682 OiA53132 and Aluminum 18 Yard Dump Trailer,
              Serial No. ALF223030                                    6,500.00




                                                                                  74
                                                                    VOL     318.PAGE 1'43

                                         SCHEDULE F.2
                                   ESTATE OF HAROLD W. PURSLEY
                                  OTHER MISCELLANEOUS PROPERTY



     1975 Pl~uth Fury 4~or, Serial                                  1,300.00
        No. PH43KSK182806
     1976 Oldsmobile 98 Regency 4-Door, Serial
        No. 3X39'lt;Ml 07 321                                       1,800.00
     1 Fiberglass Gamper                                           1,000.00
     1   Amerigo Carrper on DfM:O Trailer                          1,000.00
    1974 General Flatbed Trailer, Serial No. 3SGLB74285            1,250.00
    1 GOoseneck 30 1 Metal Cattle Trailer                          2,500.00
    1 D.EM:X> 20    I   Trailer, Serial 110. 244                   1,000.00
    1 DEMX> 28' Trailer, 3-Axle, Serial No. 3255                   1,000.00
    1 DFM:O 20 1 Trailer, 2-Axle, Serial No. 5038                  1,000.00
    1 D.EM:O 16' Trailer, 1-Axle, Serial No. 4152                  1,000.00
    1 DEM:O 20 1 Trailer, 2-Ax1e, Serial No. 4158                  1,000.00


OFFICE EQ.JIPMENI'                                                 600.00


Total Nascellaneous Property                                     493,534.00

D.EX.:;fDENr 1 S   1/2 INIEREST                                  246,767.00




                                                                                   75
VOl



       '1HE BrATE OF "'EXAS          s
                                     s           KN:JN ALL MEN   ~    THESE .PRESfNIS 'lHAT:
       a:JJNI.Y OF HIDIWD            s

            I, MILORED F. PURS~, having been duly sworn, hereby state on oath
      that the foregoing Inventory and List of Claims is a true and catplete
      statement of all the property and clairm of the Estate that have cane to
      my knowledge.




                                          MILDRID F. PtiRSLE¥, IND~.ooit5unux

           &v..tlRN '10 .Al-D SUBSCRIBED BER:RE ME by the said MilDRED F. PURSLEY, on
      this the lOth day of February, 1981, to certify v.hich witness my hand
      and seal of office.



                                             taPUbiiCill anf o r
                                         County, Texas
                                                                             Hidalgo   J




           'Ihe   foregoing    Inventory,    Appraisement       and   List    of    Clairm   of   the
      above   Estate   having    been    filed    and    presented     and    the    O>urt     having
      considered and examined the same and being satisfied that                      1t should be
      approved and there havings been no objections made thereto,                     it is in all
      respects APPROVED and ORDERED entered of record.
           SIGNED   AN)   .ENI'ERED on the   J..£!f.   day of   ~                      1981.


                                                    /L           E./·~
                                         ~p~.,~
        FILED
        FEB 1 t. 1981




                                                                                                        76
    TAB G

OF THE APPENDIX
               mast Will UlJ~ Westurp.ent q- 3'-10,8C?\ -                   ~          - \ ll      -
                                    ! .'·::'J..~~--D· · :. t ···: ~
                                         Mildred F. Pursley
                                                                            <
                                                                            :
                                                                            ;,
                                                                            ~
                                                                                      rcn
                                                                                        L,., 'v
                                                                                                i) Q 7fl',')
                                                                                                   c:: .... v.""


        I, Mildred F. Pursley, of the County ofHidalgo and the State  ofTJ~~~&@.~~~:-~~~;K
of sound and disposing mind and memo.ry, do make and declare this i~trfiW~n~~~-~~~ ~t Wi~.DEPU1Y
and Testament, hereby expressly revokmg all former Wills and CodJcilsil:iiiCfebyme arany-tmie\)'·-----
heretofore, and intending hereby to dispose of all the property of whatever kind and wherever
situated which I own, or in which I have any kind of interest at the time of my death.

                                                  I.
                                  IDENTITY OF THE FAMILY                                                                        ·'

       At the time of the execution of this Will, I am not married and I have three children, namely,
Harold Wayne Pursley, Jr., Rocky Joe Pursley and Rolland Hugh Pursley.

                                           II.
                                   PAYMENT OF EXPENSES

         I direct that all the expenses of my last illness, my funeral expenses, and my just personal
debts, including any inheritance taxes, transfer taxes, and estate taxes which may be levied by the
United States Government or by any state by reason of my death, shall be paid by my Independent
Executor out of the residue of my estate as soon as conveniently may be done; provided that my
Independent Executor, in such Executor's sole discretion, may distribute from time to time any real
or personal property in my estate which at my death is subject to a lien securing an indebtedness
upon it without discharging said indebtedness, if in my Independent Executor's judgment, the
condition of my estate so requires. The distributee shall then be considered as having received my
estate's equity in the property.
                                                 III.
                                  DISPOSITION OF ESTATE

        A.     I give, devise and bequeath to my son, Rocky Joe Pursley t.'le following property ifhe
shall survive me; however if he does not survive me, the whole thereof to Rolland Hugh Pursley:

       I.     27.0 acres gross (23.45net acres) out of Lot 3, Section 246, Tex-Mex Subdivision,
Hidalgo County, Texas.
       2.     8.65 acres net out of Lot 13-E 10/W 13.55, Section 243, Tex-Mex Subdivision,
Hidalgo County, Texas.
       3.     One-half(l/2)ofmy oil, gas and mineral rights to all ofLot 11, Block 248, Tex-Mex
Subdivision, Hidalgo County, Texas. 40 gross acres (38.80 net acres)                                                 ptJt'l-'
?A. I?
                                                                                                                   e/ ;ct
                                           EXHIBIT                                                       ;.h/,,.
                                    J__,{;,...__                                                         11· 3-d

                                                                                                                        77
        4.     One-half(l/2) of my oil, gas and mineral rights toE 112 of Lot 14, Block 248, Tex-
 Mex Subdivision, Hidalgo County, Texas. 20 gross acres (19.19 net acres)
        5.     One half(l/2) of my oil, gas and mineral rights in Frio County, Texas describedasJ.
 Poitevent Survey No. 1, Abstract No. 552.
        6.     One half(l/2) of my stock in Ebony Hills Golf Course, Hidalgo County, Texas.
        7.     Two (2) cemetery lots in Charlotte, Atascosa County, Texas.

         B.      I give, devise and bequeath to my son, Rolland Hugh Pursley the following property
 if he shall survive me; however if he does not survive me, the whole thereof to Rocky Joe Pursley:

         I.     31.82 gross acres (30.82 net acres) out of Lot 5, Block 246, Texas-Mex Survey, Hidalgo
County, Texas, (Save and except one (I) acre which is the homestead property).
        2.      One (I) acre out of Lot 5, Block 246, Tex-Mex Survey, Hidalgo County, Texas. (Homestead
property).
        3.     One half (l/2) of my oil, gas and mineral rights to all of Lot 11, Block 248, Tex-Mex Survey,
Hidalgo County, Texas consisting of 40 gross acres (38.80 net acres).
        4.     One half(l/2)ofmyoil,gas and mineral rights to all ofE ~of Lot 14, Block248, Tex-Mex
Survey, Hidalgo County, Texas consisting of20 gross acres (19.19 net acres).
        5.     One half (1/2) of my oil, gas and mineral rights in Frio County, Texas described as J.
Poitevent Survey No. I, Abstract No. 552.
        6.     One half(l/2) of my stock in Ebony Hills Golf Course, Hidalgo County, Texas.
        7.     Two (2) cemetery lots in Charlotte, Atascosa County, Texas.

       C.     I give, devise and bequeath all of the rest of my estate to my children, Rocky Joe
Pursley and Rolland Hugh Pursley, in equal shares.

        D.      I have deliberately made no provision for my son, Harold Wayne Pursley, Jr. because I
feel that he has ample property of his own.
                                                 IV.
                                  DEFINITION OF SURVIVAL

       Any legatee, devisee, donee, person or beneficiary with respect to all or any part of my estate
who shall not survive until ninety (90) days after the date of my death, or until this Will is probated,
whichever occurs earlier, shall be deemed to have predeceased me, and shall be treated for all
purposes herein as though such person had predeceased me.

                                                    v.
                                 APPOINTMENT OF EXECUTOR

        A.      I hereby nominate, constitute and appoint my son, Rocky Joe Pursley, as Independent
Executor of my estate. In the event that my son, Rocky Joe Pursley, shall predecease me or fail or
refuse to qualifY, or die, resign, or become unable to serve during the administration of my estate, I
hereby nominate, constitute and appoint my son, Rolland Hugh Pursley, as Independent Executor,

                                                    2
  ?Jt./!



                                                                                                               78
_;   ;-




           and all the powers, duties and responsibilities granted and imposed upon Rocky Joe Pursley shall
           devolve upon and be exercised by Rolland Hugh Pursley.

                  B.       If any individual Independent Executor or Executrix becomes unable to discharge his
          or her duties under this Will because of accident, physical or mental illness or deterioration, or other
          cause and does not resign, then upon certification in a fonn sufficient for the recording of a deed in
          the State of Texas by two medical doctors (neither of whom is a beneficiary under this Will)
          affirming that each has examined the Independent Executor or Executrix and that each has
          concluded, based on such examination, that the Independent Executor or Executrix is unable to
          discharge his or her duties under this Will, the Independent Executor or Executrix shall cease to
          serve, as if he or she had resigned, effective the date of the certification.

                   C.     It is my will and desire and I hereby direct that in the administration of my estate, my
          Independent Executor or any successor shall not be required to furnish any bond ofany kind and that
          no action shall be had in any court in the administration of my estate other than the probating of this,
          my Last Will and Testament, and the filing of any Inventory, Appraisement and List ofClaims of my
          estate that may be required.

                                                      VI.
                                              POWERS OF EXECUTOR

                The estate created or arising by virtue of my death and this instrument, my Last Will and
          Testament, shall be governed by and administered in accordance with the following provisions:

                  A.      I hereby grant unto my Independent Executor or any successor named above, full
          power and authority over any and all of my estate and they are hereby authorized to sell, manage, and
          dispose of the same or any part thereof, and in connection with any such sale or transaction, make,
          execute and deliver proper deeds, assignments and other written instruments and to do any and all
          things proper or necessary in the orderly handling and management of my estate.

                  B.     My Independent Executor or any successor named above, shall have full power and
          authority to compromise, settle and adjust any and all debts, claims and taxes which may be due from
          or owing by my estate.

                  C.      My Independent Executor or any successor named above, shall have full power and
          authority to deal with any person, firm, or corporation.

                  D.     My Independent Executor or any successor named above, shall have full power to
          borrow money at any time and in any amount from time to time for the benefit ofmy estate, from any
          person, firm, or corporation or from any bank or trust company and to secure the loan or loans by
          pledge, deed of trust, mortgage or other encumbrances on the assets of the estate and from time to
          time to renew such loans and give additional security.

                                                            3




                                                                                                                     79
                                                                                     ·/·--. ..
                                                                                     {           .
...   ..




                    E.      As compensation for his services hereunder, my Independent Executor or any
            successor named above shall be entitled to charge the same fees customarily charged for similar
            services in other estates at the time the services are rendered.

                                                       VII.
                                               SPENDTHRIFI' PROVISION

                   No interest of any beneficiary in the corpus or income of my estate shall be subject to
            assignment, alienation, pledge, attachment, or claims of creditors of such beneficiary and may not
            otherwise be alienated or encumbered by such beneficiary, except as may be otherwise expressly
            provided herein.

                                                         VIII.
                                                 IN TERROREM CLAUSE

                  If any beneficiary under this Will shall in any manner contest or attack this Will or any of its
           provisions, any share or interest in my estate given to such contesting beneficiary under this Will is
           hereby revoked and shall be disposed of as part ofthe residue of my estate.

                                                      IX.
                                       DEFINITIONS AND INTERPRETATIONS

                   For purposes of interpretation of this, my Last Will and Testament, and the administration of
           the estate established herein, the following provisions shall apply:

                  A.     The words "child, children, descendants, issue," and similar terms shall be deemed
           only to include children born to, or adopted (on or before eighteen years of age) by me or my
           descendants.

                   B.      When a distribution is directed to be made to any person's descendants "per stirpes,"
           the division into stirpes shalJ begin at the generation nearest to such person that has a living member.

                   C.     The use of the masculine, feminine or neuter genders shall be interpreted to include
           the other genders, and the use of either the singular or the plural number shall be interpreted to
           include the other number, unless such an interpretation in a particular case is inconsistent with the
           general tenor of this instrument. Any references herein relating to my Independent Executor shall
           include his successors regardless of the gender of the successors.

                   D.      This Will shall be probated in accordance with the laws of Texas, and should any
           provisions of the same be held unenforceable or invalid for any reason, the unenforceability or
           invalidity ofsaid provision shall not affect the enforceability or validity ofany other part ofthis Will.

                                                               4




                                                                                                                       80
          IN WITNESS WHEREOF, I, Mildred F. Pursley, hereby sign my name to this, my last
   Will, on each page of which I have placed my initials, on this E _ day of ~; L
   2007, at Edinburg, Texas.

                                                   1JwA&.teUST~
                                                 Mildred F. Pursley, Testatrix

                                            ATTESTATION

         The foregoing instrument was signed in our presence by Mildred F. Pursley and declared by
 her to be her last Will. We, at the request and in the presence of Mildred F. Pursley and in the
~~f each other, have subscribed our names below as witnesses on this~ day of
_r--2007.



                                                 ~~ik=~

                                                 City and State


                                                 Wim~~a-~
                                                 Street Address    -r
                                                       Pha.r r, , X 7f511
                                                 City and State


                                   SELF-PROVING AFFIDAVIT
  STATEOFTEXAS                                     §
                                                   §
  COUNTY OF HIDALGO                                §

         BEFORE ME, the undersigned authority, on this day personally appeared Mildred F.
  Pursley,       Phyllis Hendrix                  and             Rebecca Gonzalez                   ,
  known to me to be the Testatrix and the witnesses, respectively, whose names are subscribed to the
  annexed or foregoing instrument in their respective capacities, and all of said persons being by me
  duly sworn, the said Mildred F. Pursley, Testatrix, declared to me and to the said witnesses in my
  presence that said instrument is her Last Will and Testament and that she had willingly made and

                                                   5
     /Ja./).




                                                                                                         81
                                                                       ..r···-. .   ....


executed it as her free act and deed; and the said witnesses, each on their oath stated to me, in the
presence and hearing of the said Testatrix, that the said Testatrix had declared to them that said
instrument is her Last Will and Testament, and that she executed same as such and wanted each of
them to sign it as a witness; and upon their oaths each witness stated further that they did sign the
same as witnesses in the presence of the said Testatrix and at her request; that said Testatrix was at
that time eighteen years of age or over (or being under such age, was or had been lawfully married,
or was then a member of the armed forces of the United States or of an auxiliary thereof or of the
Maritime Service) and was of sound mind; and that each of said witnesses was then at least fourteen
years of age.



                                               Mildred F. Pursley, Testatrix



                                               Witnes


                                                     ~»~
                                               Witness



       SUBSCRIBED AND SWORN TO BEFORE ME by the said Mildred F. Pursley, Testatrix,
and by the said    Phyllis Hendrix         and Rebecca Gonzalez , Witnesses,
this 13th      day of   April      , 2007.




PREPARED IN THE OFFICE OF:
Law Office of Dennis E. Hendrix
200 N. 12th Street, Ste. 202
Edinburg, TX 78541




                                                 6




                                                                                                         82
    TAB H

OF THE APPENDIX
                                           FIRST CODICIL
                                                OF THE
                JJJa.at Will anil (!Testament
                                                   OF

                                       MILDRED F. P"QRSLEY                   ~
                                                                             l
                                                                             ~           FEB022012
                                                                     I       i

         I, Mildred F. Pursley, being of sound mind and disposing memo~~~~~~~~i;·¥:~~"
                                                                            t ?-!",.-·              •       ")!:O"'!"f.


and publish this instrument as and to be the FIRST CODICIL to            my.~: ·~i~;·~~d ·~e:fi';~~··' .. '
executed by me on Aprill3, 2007 in the presence ofPhyllis Hendrix and Rebecca Gonzalez.

         I revoke and annul the following portion of said Will: Section Ill. A., and hereby substintte in

lieu thereofthe following:

        A.     I give, devise and bequeath to my son, Rocky Joe Pursley the following property ifhe
shall survive me; however if he does not survive me, the whole thereof to Rolland Hugh Pursley:

        1.    27.0 acres gross (23.45net acres) out of Lot 3, Section 246, Tex-Mex Subdivision,
 Hidalgo County, Texas.
        2.    8.65 acres net out of Lot 13-E 10/W 13.55, Section 243, Tex-Mex Subdivision,
 Hidalgo County, Texas.
        3.    One-half{l/2) of my oil, gas and mineral rights to all ofLot 11, Block 248, Tex-Mex
Subdivision, Hidalgo County, Texas. 40 gross acres (38.80 net acres)
       4.     One-half(l/2) of my oil, gas and mineral rights toE~ of Lot 14, Block 248, Tex-
Mex Subdivision, Hidalgo County, Texas. 20 gross acres (19.19 net acres)
       5.     One half ( 1/2) of my oil, gas and mineral rights in Frio County, Texas described as J.
Poitevent Survey No. 1, Abstract No. 552.
       6.     One half (1/2) of my stock in Ebony Hills Golf Course, Hidalgo County, Texas.
       7.     Two (2) cemetery lots in Charlotte, Atascosa County, Texas.
       8.     31.82 gross acres (30.82 net acres) out of Lot 5, Block 246, Texas-Mex Survey,
Hidalgo County, Texas, (Save and except one (1) acre which is the homestead property).
       9.     One (1) acre out of LotS, Block 246, Tex-Mex Survey, Hidalgo County, Texas.
(Homestead property).




                                                                                                                 pt.
 1/!.4                                                                                                      c / 14~
                                                                                                   .,l   h/1:2.
                                                 El~IT                                             1/. 3$"'1
                                          I ____n_
                                                                                                                          83
        I revoke and annul the following portion of said Will: Section m.B., and hereby substitute in

lieu thereofthe following:

        B.     I give, devise and bequeath to my son, Rolland Hugh Pursley the following property if
he shall survive me; however if he does not survive me, the whole thereof to Rocky Joe Pursley:

        1.     One half ( 1/2) of my oil, gas and mineral rights to all of Lot 11, Block 248, Tex-Mex Survey,
Hidalgo County, Texas consisting of 40 gross acres (38.80 net acres).
        2.     One half(l/2) ofmyoil,gasand mineral rights to all ofE YzofLot 14, Block248, Tex-Mex
Survey, Hidalgo County, Texas consisting of20 gross acres (19.19 net acres).
        3.     One half (1/2) of my oil, gas and mineral rights in Frio County, Texas described as J.
Poitevent Survey No. I, Abstract No. 552.
        4.     One half (1/2) of my stock in Ebony Hills Golf Course, Hidalgo County, Texas.
        5.     Two (2) cemetery lots in Charlotte, Atascosa County, Texas.

        In all other respects I ratify and confirm all of the provisions of my said will dated April 13,

2007.

        IN WITNESS WHEREOF, I, Mildred F. Pursley, hereby sign my name to this, my FIRST

CODICIL of my last Will, on each page I have placed my initials, on this ./.l.. day of ~-
                                                                                              (/
2010, at Edinburg, Texas.




                                                 Mildred F. Pursley

                                                 Testatrix




                                                                                                                84
                       ...
                                         ATTESTATION



       The foregoing instrument was signed in our presence by Mildred F. Pursley and declared by

her to be her FIRST CODICIL to her last Will. We, at the request and in the presence of Mildred F.

Pursley and in the presence of each other, have subscribed our names below as witnesses on this _

_ _l_Jt_h_ _ day of        Jan_ua_r_Y_ _ _ _ __, 2010.




                                             CITY AND STATE




                                                                                                     85
I
e
                          •••     ....   ·-~.




                                                SELF-PROVING AFFIDAVIT

    STATE OF TEXAS                                         §
                                                           §
    COUNTY OF IDDALGO                                      §

             BEFORE ME, the undersigned authority, on this day personally appeared Mildred F.
     Pursley,     Phyllis Hendrix                         and     Mary Catherine Hendrix                    ,
    known to me to be the Testatrix and the witnesses, respectively, whose names are subscribed to the
    annexed or foregoing instrument in their respective capacities, and all of said persons being by me
    duly sworn, the said Mildred F. Pursley, Testatrix, declared to me and to the said witnesses in my
    presence that said instrument is her FIRST CODICIL to her Last Will and Testament and that she
    had willingly made and executed it as her free act and deed; and the said witnesses, each on her oath
    stated to me, in the presence and hearing of the said Testatrix, that the said Testatrix had declared to
    them that said instrument is her FIRST CODICIL to her Last Will and Testament, and that she
    executed same as such and wanted each of them to sign it as a witness; and upon their oaths each
    witness stated further that they did sign the same as witnesses in the presence of the said Testatrix
    and at her request; that said Testatrix was at that time eighteen years of age or over (or being under
    such age, was or had been lawfully married, or was then a member of the armed forces ofthe United
    States or of an auxiliary thereof or of the Maritime Service) and was of sound mind; and that each of
    said witnesses was then at least fourteen years of age.




                                                        Mildred F. Pursley, Testatrix


                                                        ~~'ikzAy

                                                        Witness


           SUBSCRIBED AND SWORN TO BEFORE ME by the said Mildred F. Pursley. Testatrix,
    and by the said  Phyllis Hendrix        and Mary Catherine Hendrix
    Witnesses, this 13th    day of January       2010.




                                                                                                                86
     TAB I

OF THE APPENDIX
                                                                                                       Electronically Filed
Accepted by: Alejandra Zapata                                                                      10/30/2014 2:20:29 PM
                                                                                             Hidalgo County Clerks Office




                                                                                                       1




                1                                 REPORTER'S RECORD
                2                             VOLUME 1 OF 1 VOLUMES
                3                    TRIAL COURT CAUSE NO.                   P-34,801
                4                                 -   -   -    -   X

               5     IN THE ESTATE OF                                  IN THE PROBATE COURT
                6   MILDRED OZELLA FAVOR
                    PURSLEY, AKA                                       OF
               7    MILDRED F. PURSLEY,
               8    DECEASED                                           HIDALGO COUNTY,     TEXAS
                9                -   -    -   -   -   -   -    -   X

              10
              11

              12
              13                                  PRE-TRIAL HEARING
              14
              15            On the 20th day of August,                      2014,   the following
              16    proceedings came on to be heard in the above-entitled
              17    and numbered cause before the Honorable Homero Garza,
              18    Judge Presiding, held in Edinburg, Hidalgo County,
              19    Texas.
              20            Proceedings reported by computerized stenotype
             21     machine.
             22
             23
             24
             25



                                         ROLAND P.            QUINTANILLA,      CSR
                                                      EXHIBIT

                                              t.i.                                                  250
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Accepted by: Alejandra Zapata                                                                             10/30/2014 2:20:29 PM
                                                                                                    Hidalgo County Clerks Office




                1                                          VOLUME 1

                2                                 CHRONOLOGICAL INDEX

                3   AUGUST 20,         2014                                                 PAGE      VOL

                4   Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2       1

                5   Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3         1

                6    Court's ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3         1

                7   End of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 4              1

                8   Reporter's Certificate . . . . . . . . . . . . . . . . . . . . . 5                  1

                9

              10
              11

              12
              13
              14
              15
              16
              17
              18
              19
              20
              21
              22
              23
              24
              25



                                           ROLAND P.        QUINTANILLA,           CSR



                                                                                                            251
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Accepted by: Alejandra Zapata                                              10/30/2014 2:20:29 PM
                                                                     Hidalgo County Clerks Office




                                                                              2




               1                       A P P E A R A N C E S

               2    APPEARING FOR THE MOVANTS:
               3            HON. EDMUNDO 0. RAMIREZ
                            State Bar No. 16501420
               4            Ellis, Koeneke & Ramirez, LLP
                            1101 Chicago
               5            McAllen, Texas   78501
                            Phone No. 956-682-2440
               6            Fax No. 956-682-0820
                            eor@ekrattorneys.com
               7
                    APPEARING FOR THE RESPONDENT:
               8
                            HON. CHARLES C. MURRAY
               9            State Bar No. 14719700
                            Atlas, Hall & Rodriguez, LLP
              10            818 Pecan Boulevard
                            McAllen, Texas  78501
              11            Phone No. 956-682-5501
                            Fax No.  956-686-6109
              12
              13
              14
              15
              16
              17
              18
              19
              20

              21
              22
              23
              24
              25



                                    ROLAND P.   QUINTANILLA,   CSR



                                                                            252
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Accepted by: Alejandra Zapata                                                              10/30/2014 2:20:29 PM
                                                                                     Hidalgo County Clerks Office




                                                                                              3




               1                        THE COURT:       The next case is P-34,801,
               2    this is in the estate of Mildred Ozella Favor -- I
               3    hope I didn't mispronounce that.              Pretrial hearing.
               4    Ozella Favor Pursley,         also known as Mildred F.

               5    Pursley.
               6                        MR.   MURRAY:     34,801,   Your Honor?

               7                        THE COURT:       Yeah,   Pursley is what

               8    clicked.
               9                        MR.   MURRAY:     Yes.   Charles Murray for

              10    Rocky Pursley,      Your Honor.
              11                        THE COURT:       All right.       It's for

              12    pretrial?
              13                        MR.   RAMIREZ:     Edmundo Ramirez for the

              14    movants,     Your Honor.      We've got a pretrial,        Your
              15    Honor,      and we have dueling summary judgments,           for
              16     lack of a better term.         We've argued them,        and we've
              17    briefed them,      and both parties agree that the only
              18     issue is a matter of law,          and so we urge the Court to

              19     rule.
              20                        THE COURT:       I guess we got these jury
              21    trial settings before we realized there was going to
              22    be a pending motion for summary judgment.
              23                        MR.   RAMIREZ:     Right,   right,    we've

              24     refined it down to summary judgments.

              25                        THE COURT:       I have that case on my



                                      ROLAND P.    QUINTANILLA,     CSR



                                                                                            253
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Accepted by: Alejandra Zapata                                                            10/30/2014 2:20:29 PM
                                                                                   Hidalgo County Clerks Office




                                                                                            4




               1    desk,       and I'm going on vacation next week,           so by
               2    Friday I ' l l have a ruling for the parties.

               3                         MR.   RAMIREZ:     Thank you.

               4                         MR.   MURRAY:     Thank,   Your Honor.

               5                         MR.   RAMIREZ:     We've submitted

               6    electronic orders.
               7                         MR.   MURRAY:     And so have we.

               8                         MR.   RAMIREZ:     And if you want to,        I'll

               9    send a paper one.
              10                         THE COURT:       No,   that's fine.

              11                         MR.   RAMIREZ:     Thank you,      Your Honor.

              12                         MR.   MURRAY:     Thank you,      Your Honor.

              13                         THE COURT:       I ' l l dispose of it before

              14    I   leave.

              15                         MR.   MURRAY:     Thank you.

              16                         MR.   RAMIREZ:     Thank you.

              17                         THE COURT:       You all have a good day.

              18                         (End of proceedings.)

              19
              20

              21
              22
              23

              24
              25



                                       ROLAND P.   QUINTANILLA,      CSR



                                                                                          254
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Accepted by: Alejandra Zapata                                                           10/30/2014 2:20:29 PM
                                                                                  Hidalgo County Clerks Office




                                                                                            5




                1    STATE OF TEXAS:
                     COUNTY OF HIDALGO:
                2                CERTIFICATE OF COURT REPORTER

                3               I,    ROLAND P.   QUINTANILLA, Official Court

                4    Reporter in and for the Probate Court of Hidalgo
                5    County,          State of Texas,   do hereby certify that the

                6    above and foregoing contains a            true and correct
                7    transcription of all portions of evidence and other
                8    proceedings requested by Edmundo 0.             Ramirez,    counsel
                9    for Movants to be included in this volume of the

              10     Reporter's Record,            in the above-entitled and numbered
              11     cause,          all of which occurred in open court or in
              12     chambers and were reported by me.

              13                I    further certify that this Reporter's Record of
              14     the proceedings truly and correctly reflects the

              15     exhibits,          if any,   admitted by the respective parties.
              16                I    further certify that the total cost for the

              17     preparation of this Reporter's Record is $75.00, and
              18     was paid by counsel for Movants, Edmundo 0.                Ramirez.
              19            WITNESS MY OFFICIAL HAND on this the 22nd day of
              20     October,         2014.

              21

              22
                                              ROLAND P. QUINTANILLA, CSR
              23                              Official Court Reporter
                                              Hidalgo County Probate Court
              24                              100 N. C1osner, 3rd Floor
                                              Edinburg, TX 78539/956-318-2385
              25                              CSR No. 900, Expires 12/31/14



                                          ROLAND P.   QUINTANILLA,   CSR



                                                                                         255
     TAB J

OF THE APPENDIX
                                                                          ,-----------------------
                                      Cause No. P-34.801
                                                                          '
                                                                          J
                                                                          J
                                                                  !        tJJr.! ,... 2          .. o-~.1
IN THE ESTATE OF                                      IN THE PROBA:TE COURT -:.7 ~                t     "

MILDRED OZELLA FAVOR PURSLEY                          OF
AKA MILDRED F. PURSLEY

DECEASED,                                             HIDALGO COUNTY, TEXAS

                   ORDER ON MOTIONS FOR SUMMARY JUDGMENT

     BE IT REMEMBERED that on the                    Z~y         of   OJ.,r,.,r-       , 20!1, the

Court considered the Motion for Summary Judgment filed by Harold

Wayne Pursley,      Jr.        and Rolland Hugh Pursley and the Motion for

Summary Judgment filed by Rocky Joe Pursley.

     The Court,          having examined the pleadings                         on file     and the

summary judgment evidence, finds:

1,   The will executed by Harold W. Pursley and Mildred F. Pursley

     on April       29,        1975    is a   contractual will.                The language            in

     paragraph       IV.        "any    child    or     children         of     this      marriagen

     provided for the remainder of the estate to be conveyed as a

     class gift and therefore,                  mandates the distribution to all

     persons       identified           in    that    class,          those     being      all        the

     children.

2.   The    court     concludes           (reading         the   1975         will   as    a     whole

     instrument) that it was the intent of Harold W. Pursley when

     he executed the 1975 will with his wife, that at his passing

     (if he died first) and at the subsequent passing of his wife,

     any estate          left     over was       to    go    and vest           in his      beloved

     children, Harold Wayne Pursley, Jr., Rolland Hugh Pursley and

     Rocky Joe Pursley, share and share alike.

3.   The preferred will executed by Mildred F. Pursley dated April

     13,    2007    is     a    breach of       the    1975      contractual will.                    The



                                                                                                      208
      preferred First Codicil executed by Mildred F. Pursley dated

      January 13, 2010 is a breach of the 1975 contractual will.

4.    Harold     Wayne   Pursley,   Jr.   and   Rolland    Hugh      Pursley   are

      entitled to summary judgment;

5.    Rocky Joe Pursley is not entitled to summary judgment;

       It is therefore,

      ORDERED,    ADJUDGED and DECREED that the Motion for Summary

Judgment   filed    by Harold Wayne       Pursley,   Jr.   and    Rolland      Hugh

Pursley, is hereby granted.

      ORDERED,    ADJUDGED and DECREED that the Motion for Summary

Judgment filed by Rocky Joe Pursley, is hereby denied.

      ORDERED, ADJUDGED and DECREED that the 2007 Will and the 2010

Codicil preferred by Rocky Joe Pursley not be admitted to probate.

      SIGNED on this the       2-%.-.( day of ~ ,J- ,      20 IF-.

                                                cc).r
                                           JUDGE PRESIDING

xc.   Edmundo 0. Ramirez
      Attorney at Law
      1101 Chicago
      McAllen, Texas 78501

      Charles Murray
      Attorney at Law
      818 W. Pecan Blvd.
      McAllen, Texas 78502




                                                                               209
    TAB K

OF THE APPENDIX
                                                                                                                   Electronically Filed
Accepted by: Alejandra Zapata                                                                                  11/19/2014 9:33:37 AM
                                                                                                         Hidalgo County Clerks Office




                                                    CAUSE NO. P-34,801-A


              IN THE ESTATE OF                              §            IN THE PROBATE COURT
                                                            §
              MILDRED OZELLA FAVOR                          §
              PURSLEY                                       §           OF
              AKA MILDRED F. PURSLEY                        §
                                                            §
             DECEASED                                       §           HIDALGO COUNTY, TEXAS



                                                        FINAL JUDGMENT


                   ..The .Court hereby_enters .this_Fjnal. Judgment ...in _accordance_with _the_Qtd.er_exe.c.ute_d_Qll_________

             August 22, 2014, in which the Court granted the Motion for Summary Judgment filed by Harold

             Wayne Pursley, Jr. and Rolland Hugh Pursley and denied the Motions for Summary Judgment

             filed by Rocky Joe Pursley.

                    IT IS ORDERED, ADJUDGED and DECREED that the will executed by Harold W.

            Pursley and Mildred F. Pursley on April 29, 1975 is a contractual will. The language in

            paragraph IV. "any child or children of this marriage" provided for the remainder of the estate to

            be conveyed as a class gift and therefore, mandates the distribution to all persons identified in

            that class, those being all the children.

                    IT IS ORDERED, ADJUDGED and DECREED that the court concludes (reading the

            1975 will as a whole instrument) that it was the intent of Harold W. Pursley when he executed

            the 1975 will with his wife, that at his passing (if he died first) and at the subsequent passing of

            his wife, any estate left over was to go and vest in his beloved children, Harold Wayne Pursley,

            Jr., Rolland Hugh Pursley and Rocky Joe Pursley, share and share alike.




                                                                                                                   270
                                                            Electronically Filed
Accepted by: Alejandra Zapata                           11/19/2014 9:33:37 AM
                                                  Hidalgo County Clerks Office




                                20TH   NOVEMBER




                                                         271
