Opinion issued February 21, 2019




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-18-00041-CV
                           ———————————
JASPER LEE MCDANIEL, JR., ANDREW MCDANIEL, AND ESTATE OF
            FRANCES ANN MCDANIEL, Appellants
                                       V.
                     MANDY GALE MEADOR, Appellee


        On Appeal from County Court at Law No. 3 & Probate Court
                         Brazoria County, Texas
                     Trial Court Case No. PR37802A


                         MEMORANDUM OPINION

      This appeal arises from a declaratory judgment action concerning a dispute

over the Last Will and Testament of the late Frances Ann McDaniel. In two issues,

Appellants, Jasper Lee McDaniel, Jr., Andrew McDaniel, and the Estate of Frances
Ann McDaniel, challenge the trial court’s declaratory judgment in which the court

determined that Frances’s granddaughter, Mandy Gale Meador, is a beneficiary

under the Will entitled to one-third of Frances’s estate. Because we conclude that

the trial court did not err in this determination, we affirm the judgment of the trial

court.

                                    Background

         Frances Ann McDaniel signed her Last Will and Testament (“the Will”) on

January 3, 2012. The Will’s opening provisions reflect that Frances’s husband had

predeceased her and that she had three children: Jasper Lee McDaniel, Jr., James

Arnold McDaniel, and Andrew Douglas McDaniel.

         Frances died testate on April 3, 2017. Frances’s sons, Jasper and Andrew,

survived her. She was predeceased by her son, James, who died in May 2016.

James’s daughter and sole heir, Mandy Gale Meador, also survived Frances.

         Following Frances’s death, Jasper and Andrew claimed that Mandy was not

a beneficiary under the Will’s provisions.        Mandy claimed that she was a

beneficiary and filed a petition for declaratory judgment.

         In the petition, Mandy requested the trial court to interpret the Will’s

provisions to determine who the beneficiaries were under the Will and to

determine what share of the estate each beneficiary should receive. To support her




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claim that she was a beneficiary, Mandy relied on the opening paragraph of the

Will and the second paragraph, as follows:

      . . . I have three children whose names are JASPER “LEE”
      MCDANIEL, JR., JAMES ARNOLD MCDANIEL and ANDREW
      DOUGLAS MCDANIEL.

      FIRST: [Providing that various expenses and taxes first be paid out of
      Frances’s estate.]

      SECOND: I give all the rest, residue and remainder of my property
      and estate, both real and personal, of whatever kind and wherever
      located, that I own or to which I shall be in any manner entitled at the
      time of my death (collectively referred to as my “residuary estate”),
      except those personal items already designated as gifts, but still
      remain in my home as follows:

            (a) To those of my children (JASPER “LEE”
            MCDANIEL, JR., AND ANDREW DOUGLAS
            MCDANIEL) who survive me and to the issue who
            survive me of those of my children who shall not survive
            me, in equal shares per stirpes.

            (b) If no issue of mine survives me, I give my residuary
            estate to those who would take from me as if I were then
            to die-without a will, unmarried and the absolute owner
            of my residuary estate, and a resident of the State of
            Texas.

      A trial was conducted to the bench on Mandy’s petition for declaratory

relief. Both sides agreed that the Will’s provisions were unambiguous and that the

construction of the Will was a question of law.

      Mandy asserted that whether she was a beneficiary under the Will centered

on the meaning of “children” referenced in Paragraph 2(a). She acknowledged that


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the meaning of “children” in the phrase “[t]o those of my children (JASPER

“LEE” MCDANIEL, JR., AND ANDREW DOUGLAS MCDANIEL) who survive

me” was limited to Jasper and Andrew. But Mandy asserted that the second

reference to children—in the phrase “to the issue who survive me of those of my

children who shall not survive me”—was not modified or limited to exclude her

deceased father, James. Thus, as James’s issue, Mandy was a beneficiary under

the Will.

      Mandy further supported her position that the second reference to “children”

included James by pointing out that James was identified in the opening paragraph

of the Will as one of Frances’s children and that the common law and statutory

definitions of “children” would include James as Frances’s child. Finally, Mandy

asserted that “Paragraph 2B is further indication that [Frances] envisioned a

situation where her children would not survive her and that she wanted the ability

for her issue—her heirs, her grandchildren, [Mandy]—to inherit.”

      The attorney representing Appellants asserted that Frances wanted James to

inherit nothing from her estate.1 The attorney stated that Frances intended to leave

her estate only to Jasper and to Andrew as indicated by the modification to the first

instance of the term “children” in Paragraph 2(a). She averred that, because it had

already been modified, it was not necessary to modify the term “children” the

1
      The attorney stated that she had drafted the Will. The Will named Jasper as the
      independent executor of the Will.
                                         4
second time it appeared in the paragraph. The attorney said that the second part of

the paragraph—stating “to the issue who survive me of those of my children who

shall not survive me”—referred only to the issue of Jasper and Andrew, not to the

issue of James. The attorney indicated that the second part of the paragraph only

was applicable if Jasper, Andrew, or both predeceased Frances. She argued that,

because both Jasper and Andrew were alive at the time of Frances’s death, they

inherited the whole estate, and the second part of Paragraph 2(a) was not triggered.

      Mandy disagreed. She averred that Appellants were incorrect in claiming

that “the same language is used in the second portion of [Paragraph 2(a)] as the

first” because “the first term ‘children’ . . . is modified with parenthesis” while “the

second term ‘children’ in that sentence is not modified with parenthesis.” Mandy

asserted that, if Frances “wanted to limit inheritance to Jasper and Andrew alone,

[the first part of the paragraph] would have . . . ended right there, ‘to those of my

children who survive me,’ period.” Mandy continued, “[I]f [Frances] wanted to

limit the issue of both Jasper—you know, the inheritance to the issue of both

Jasper or Andrew, then she would have said ‘If either one of these predecease me,

then I leave it to the survivor of them or to their heirs at law.’” Mandy pointed out

that “[t]he Court is not asked to determine what the testator intended to write. The

Court is asked to interpret what is actually written or what the intent is based on

what is actually written.”


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      The trial court agreed with Mandy’s interpretation of the Will. The court

signed a declaratory judgment determining that Jasper, Andrew, and Mandy were

beneficiaries under the Will and ordering that each is entitled to one-third of

Frances’s estate.

                             Construction of the Will

      Raising two issues, Appellants challenge the trial court’s determination that

Mandy is a beneficiary of the residuary estate under Paragraph 2(a) of the Will.

A.    Standard of Review

      Absent ambiguity, the construction of a will is a matter of law. In re Heider,

496 S.W.3d 118, 122 (Tex. App.—Dallas 2016, no pet.); see Hurley v. Moody

Nat’l Bank of Galveston, 98 S.W.3d 307, 310 (Tex. App.—Houston [1st Dist.]

2003, no pet.). Ambiguity does not arise merely because the parties disagree on

the will’s interpretation or because of a simple lack of clarity.         Estate of

Morgenroth, No. 05-15-00777-CV, 2016 WL 4010053, at *3 (Tex. App.—Dallas

July 25, 2016, no pet.) (mem. op.).      “[A] will is ambiguous only when the

application of established rules of construction leave its terms susceptible to more

than one reasonable meaning.” Steger v. Muenster Drilling Co., Inc., 134 S.W.3d

359, 373 (Tex. App.—Fort Worth 2003, pet. denied). Here, the parties agree, and

so do we, that the Will is not ambiguous. Thus, the construction of the Will is a




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matter of law, which we review de novo. See Heider, 496 S.W.3d at 122; Lemus v.

Aguilar, 491 S.W.3d 51, 56 (Tex. App.—San Antonio 2016, no pet.).

B.    Analysis

      In their first issue, Appellants contend that, because Jasper and Andrew

survived Frances, the Will designates only them as the beneficiaries of the

residuary estate.   Appellants point to the language in Paragraph 2(a), which

provides that the residuary estate is given “[t]o those of my children (JASPER

“LEE” MCDANIEL, JR., AND ANDREW DOUGLAS MCDANIEL) who survive

me and to the issue who survive me of those of my children who shall not survive

me, in equal shares per stirpes.” They assert that, by concluding that Mandy is a

beneficiary, the trial court improperly disregarded Frances’s intent by ignoring the

language in the parenthetical identifying only Jasper and Andrew as beneficiaries

and by ignoring the omission of James’s name.

      Mandy counters that Appellants improperly disregard the second beneficiary

clause of Paragraph 2(a), following the conjunction “and,” which gives the

residuary estate “to the issue who survive me of those of my children who shall not

survive me.” Mandy contends, and the trial court determined, that Mandy is a

beneficiary under this second beneficiary clause. It is undisputed that Mandy is the

daughter (the issue) and sole heir of James, Frances’s non-surviving child.

However, Appellants argue that Mandy is not a beneficiary under the second


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beneficiary clause because the parenthetical in the first beneficiary clause, naming

only Jasper and Andrew as Frances’s “children,” also applies to limit the term

“children” in the second beneficiary clause.

      As she did in the trial court, Mandy disagrees.         She contends that the

parenthetical expressly limiting the term “children” in the first beneficiary clause

to Jasper and Andrew does not apply to the second beneficiary clause under which

she is a beneficiary. She asserts that, because it is not expressly limited, the term

“children” in the second beneficiary clause includes not only Jasper and Andrew

but also her father, James.

      Our task is to determine whether the parenthetical modification to the term

“children” in the first beneficiary clause, limiting the term to Jasper and Andrew,

applies to the term “children” in the second beneficiary clause. If it does, then

Mandy is not a beneficiary under the Will. If it does not, then the trial court

properly determined that Mandy was a beneficiary along with Jasper and Andrew.

      “The cardinal rule for construing a will is to ascertain the true intent of the

[testatrix] as expressed in the will.” Morgenroth, 2016 WL 4010053, at *3. The

“objective in construing a will is to discern and effectuate the testatrix’s intent as

reflected in the instrument as a whole.” Hysaw v. Dawkins, 483 S.W.3d 1, 7 (Tex.

2016). We ascertain the testatrix’s intent from the language within the four corners

of the will. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000).


                                          8
Courts “determine intent by construing the instrument holistically and by

harmonizing any apparent conflicts or inconsistencies in the language.” Hysaw,

483 S.W.3d at 4; see In re Estate of Florence, 307 S.W.3d 887, 893 (Tex. App.—

Fort Worth 2010, no pet.) (“If possible, all parts of the will must be harmonized,

and every sentence, clause, and word must be considered in ascertaining the

testator’s intent.”). We must focus on the meaning of the words the testatrix

actually used rather than speculate about what she may have intended to write. See

Lang, 35 S.W.3d at 639.

      With these rules of construction in mind, we consider Paragraph 2(a) in the

context of other relevant provisions of the Will:

      I have three children whose names are JASPER “LEE” MCDANIEL,
      JR., JAMES ARNOLD MCDANIEL and ANDREW DOUGLAS
      MCDANIEL.

      ....

      SECOND: I give all the rest, residue and remainder of my property
      and estate, both real and personal, of whatever kind and wherever
      located, that I own or to which I shall be in any manner entitled at the
      time of my death (collectively referred to as my “residuary estate”),
      except those personal items already designated as gifts, but still
      remain in my home as follows:

             (a) To those of my children (JASPER “LEE”
             MCDANIEL, JR., AND ANDREW DOUGLAS
             MCDANIEL) who survive me and to the issue who
             survive me of those of my children who shall not survive
             me, in equal shares per stirpes.



                                          9
            (b) If no issue of mine survives me, I give my residuary
            estate to those who would take from me as if I were then
            to die-without a will, unmarried and the absolute owner
            of my residuary estate, and a resident of the State of
            Texas.

      When viewed holistically and harmonizing any apparent conflicts, we agree

with Mandy that Frances did not intend to limit the term “children” to Jasper and

Andrew in the second beneficiary clause. We presume that a testatrix places

nothing superfluous or meaningless in her will and that she intended every word to

play a part in the disposition of her property. Lacis v. Lacis, 355 S.W.3d 727, 733

(Tex. App.—Houston [1st Dist.] 2011, pet. dism’d w.o.j.). Frances defined who

her children were in the opening provision of the Will, listing all three of her

children: Jasper, James, and Andrew. See Trinity Universal Ins. Co. v. Cowan, 945

S.W.2d 819, 823 (Tex. 1997) (“[W]hen terms are defined in a [contract], those

definitions control.”). By way of the parenthetical, Frances, at most, expressed her

intent that she did not want James to be a beneficiary should he survive her.

However, that same limitation was not placed on the term “children” in the second

beneficiary clause to indicate that Frances did not intend the term “children” to

include James in accordance with the definition in the Will’s opening paragraph.

The Will contains no other indication that Frances intended to disinherit her

granddaughter, Mandy, if James predeceased Frances.




                                        10
      We also note that terms are to be given their plain, ordinary, and generally

accepted meanings unless the instrument itself shows them to have been used in a

technical or different sense. Steger, 134 S.W.3d at 372. Even when given its

ordinary meaning, the term “children” would also include James. And, under well-

established rules of probate law, James would also be included as one of Frances’s

children. See Busby v. Gray, 616 S.W.2d 284, 287 (Tex. App.—San Antonio,

1981, writ ref’d n.r.e.) (recognizing that word “children” when used in a will

encompasses descendants of the first degree).       The only place in the Will

indicating that the “children” was intended to have a meaning different than the

meaning ascribed in the opening paragraph or under the common, ordinary

definition is the first beneficiary clause.

      Further, defining the term “children” in the second beneficiary clause to

exclude James from that definition, and as a result exclude Mandy from being a

beneficiary, would give rise to a potential conflict with Paragraph 2(b), which

provides, “If no issue of mine survives me, I give my residuary estate to those who

would take from me as if I were then to die-without a will . . . .” (Emphasis

added.)    Paragraph 2(b) makes no exception for Frances’s issue descending

through James.

      “[A]pparent inconsistencies or contradictions must be harmonized, to the

extent possible, by construing the document as a whole.” Hysaw, 483 S.W.3d at


                                              11
13; see Lacis, 355 S.W.3d at 733. “[A] latter clause in a will must be deemed to

affirm, not to contradict, an earlier clause in the same will.” In re Estate of

Slaughter, 305 S.W.3d 804, 812 (Tex. App.—Texarkana 2010, no pet.) (citing

Steger, 134 S.W.3d at 372). Thus, we read Paragraph 2(b) to affirm that Frances

intended Mandy to be a beneficiary if she survived Frances.

      In their second issue, Appellants criticize the trial court for finding that

“absent an express statement to disinherit her granddaughter, Mandy Gale Meador,

it was [Frances’s] intent to include her in the bequest.” They assert that Texas law

does not require “an express statement to remove [Mandy’s] inheritance rights.”

Regardless of the propriety of this assertion, under the facts of this case, a clear

statement of disinheritance would be necessary, given that Frances chose language

in her Will indicating that she intended for her granddaughter to be a beneficiary.

      After considering the language of Frances’s Will and applying the

established rules of construction, we conclude that Mandy, along with Jasper and

Andrew, were beneficiaries of Frances’s residuary estate. We hold that the trial

court did not err in also reaching this conclusion.

      We overrule Appellants’ two issues.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Keyes, Higley, and Landau.




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