Opinion filed October 31, 2019




                                       In The

        Eleventh Court of Appeals
                                    __________

                                 No. 11-17-00291-CV
                                     __________

                 IN THE MATTER OF THE ESTATE OF
                 MILDRED L. ETHRIDGE, DECEASED


                    On Appeal from the County Court at Law
                           Midland County, Texas
                        Trial Court Cause No. P10778


                                    OPINION
      In this will-construction case, Appellant, Fred D. Davis Jr., appeals the trial
court’s “Order Determining Estate Distribution” and “Final Order to Remove
Executor and Appoint Successor.” Appellant raises two issues: (1) whether the trial
court erred in finding that the term “personal effects” did not refer to “cash,
receivables, interest in oil, gas or other minerals, royalties, [or] real property”; and
(2) whether the trial court erred in finding that Appellant had misapplied property
entrusted to his care in violation of his fiduciary duties and Section 404.003(2) of
the Texas Estates Code. Because we conclude that the trial court properly construed
the will at issue and properly removed Appellant as executor, we affirm.
                                        Background Facts
        In 1990, Mildred L. Ethridge executed a one-page typewritten will that she
drafted without consulting an attorney. In relevant part, the will stated:

               I, MILDRED L. ETHRIDGE, (femme sole) of Midland County,
        Texas, for the purpose of the distribution of my entire estate, real,
        personal and mixed, which I wish to have take effect at my death, do
        make, publish and declare this to be my Last Will and Testament, and
        I do hereby revoke all former wills and testamentaries heretofore made
        by me at any time.
                                                FIRST
             I hereby appoint and name Fred D. Davis, Jr. as Independent
        Executor and trustee of my estate, to serve without bond. I give Fred
        D. Davis, Jr. all my personal effects to clear my estate after my death.
                                              SECOND
               I give and bequeath my one half (1/2) ownership in my residence
        and homestead situated on the East 53 feet of Lot 5, West 16.9 feet of
        Lot 4, Block 1, Oxford Heights to Patricia Petosky.
        Appellant was Mildred’s nephew-in-law. Mildred died on January 9, 1994,
and her will was admitted to probate on April 7, 1994. Prior to her death, Mildred
gifted the Oxford Heights residence to someone else, leaving Appellant as the only
other person possibly named as beneficiary under the will.1 The county court at law
authorized Appellant to receive “Letters Testamentary” as the independent executor
of Mildred’s estate. Appellant filed an inventory of the estate. In the inventory,
Part A described the money in Mildred’s checking account, and Part B listed
miscellaneous property that Mildred owned at the time of her death, including
furniture and a television.




        1
         The parties dispute whether Appellant was named as a beneficiary under the will. In light of our
disposition, we do not need to consider whether Appellant is a beneficiary under the will.

                                                   2
       At her death, Mildred also owned mineral royalties that were not specifically
devised in her will or included in the inventory. After the will was probated,
Enterprise Crude Oil LLC began paying royalties to Mildred’s estate. Appellant
opened a bank account for the estate to receive the funds. Believing he was entitled
to the entire estate, Appellant transferred the funds into his personal account.
Appellant and his wife, June Ethridge Davis, spent the funds on items unrelated to
the estate.
       In 2010, Mildred’s heirs discovered they were possibly entitled to the royalty
payments from Mildred’s estate. On July 8, 2014, Mildred’s great-nephew, John
Wright Ethridge Jr., sent a letter to Appellant requesting an accounting of the estate
pursuant to Section 404.001 of the Texas Estates Code. Appellant never responded
to the request.
       On October 22, 2014, John Wright Ethridge Jr. filed an application for
removal of Appellant as the independent executor of the estate. Appellee John
McCarty also filed an application to appoint a successor independent executor. The
applicants asserted that they were Mildred’s heirs and that her various mineral
royalty interests did not pass under her will.
       The trial court held a hearing on September 10, 2015, to consider the various
claims of the parties. The trial court subsequently entered an “Order Determining
Estate Distribution,” wherein it determined that “personal effects” as used in the will
meant “articles of personal property bearing intimate relation or association to the
person.” The trial court also found that personal effects was a more limited term
than personal property and only included the miscellaneous items listed in Part B of
the inventory. Most notably, the trial court found that Mildred died intestate as to
“cash, receivables, interest in oil, gas or other minerals, royalties, real property . . .
or other personal property” other than her personal effects. The trial court found that
such items passed to her heirs at law through intestacy.
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        On September 25, 2017, the trial court entered a final order in which it found
that, based on its prior interpretation of the will, Appellant had “misapplied part of
the property entrusted to his care in violation of his fiduciary duties and
Section 404.003(2) of the Texas Estates Code.”2                     Accordingly, the trial court
removed Appellant as the independent executor of the estate.
        Appellant then filed this appeal seeking that we hold that the term “personal
effects” refers to all property of any kind owned by Mildred (other than the Oxford
Heights residence) and seeking that we vacate the order removing him as executor.
                                               Analysis
        In his first issue, Appellant asserts that the trial court erred in its construction
of the term “personal effects” as used in the will. We review a trial court’s
construction of language in a will de novo. Jinkins v. Jinkins, 522 S.W.3d 771, 779
(Tex. App.—Houston [1st Dist.] 2017, no pet.).
        Appellant contends that the trial court’s limited construction of the term
personal effects contradicts the prior clause, which states that the will was executed
“for the purpose of the distribution of [Mildred’s] entire estate, real, personal and
mixed.” Appellant also argues that the plain language of the will shows that Mildred
intended “personal effects” to encompass all her property other than the Oxford
Heights residence. Appellant contends that Mildred intended for her entire estate to
be split into two components: (1) her one-half interest in her “residence,”
encompassing only the Oxford Heights property, and (2) her “personal effects,”
encompassing everything else. Appellant further urges that a liberal interpretation
of “personal effects” is appropriate because Mildred was not an attorney nor was her
will drafted by an attorney.

        Section 404.003(2) permits the removal of an independent executor, without notice, if “sufficient
        2

grounds appear to support a belief that the independent executor has misapplied or embezzled, or is about
to misapply or embezzle, all or part of the property committed to the independent executor’s care.” TEX.
EST. CODE ANN. § 404.003(2) (West 2014).

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      In construing a will, the court must focus on the testator’s intent. San Antonio
Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). This intent must be
ascertained from the language within the four corners of the will. Id. (citing
Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex.
1980)). The question is not what the testator intended to write but, rather, the
meaning of the words actually used. Id. Courts “may not redraft the will, vary or
add provisions” under the guise of construing the will’s language to reflect some
presumed intention of the testator. Shriner’s, 610 S.W.2d at 151.
      “Determining a testatrix’s intent from the four corners of a will requires a
careful examination of the words used.” San Antonio Area Found., 35 S.W.3d at
639. When a will is unambiguous, we look only to its terms to ascertain intent. Id.
(explaining that extrinsic evidence is only admissible when a term is open to more
than one construction); see also Gordon v. Gordon, No. 11-14-00086-CV, 2016 WL
1274076, at *3 (Tex. App.—Eastland Mar. 31, 2016, pet. denied) (mem. op.)
(explaining that a difference in interpretation is not equivalent to ambiguity).
      Terms used are to be given their plain, ordinary, and generally accepted
meanings unless the instrument itself shows that they were used in a technical or
different sense. Steger v. Muenster Drilling Co., 134 S.W.3d 359, 372 (Tex. App.—
Fort Worth 2003, pet. denied). “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.” Id. Where practicable, a latter clause in a will must be deemed to
affirm, not contradict, an earlier clause. Id. Additionally, we must presume that the
testator placed nothing meaningless or superfluous in the will and intended every
word to have a meaning and to play a part in the disposition of the property. Gordon,
2016 WL 1274076, at *3.
      Neither party argues that the will is ambiguous, and we conclude that the will
is not ambiguous. See Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983)
                                          5
(deciding whether a contract is ambiguous is a question of law for the court; noting
that a court may conclude that a contract is ambiguous even in the absence of such
a pleading by either party). Accordingly, extrinsic evidence is unnecessary, and
Mildred’s intent must be found solely within the four corners of her will. Appellant
contends that Mildred’s use of the words “entire estate, real, personal and mixed”
shows that, except for the homestead, Mildred intended that “personal effects”
encompass all her property—both personal and real. We are unpersuaded by this
argument.
      Personal effects has customarily been defined narrowly as a subset of personal
property. Estate of Neal, No. 02-16-00381-CV, 2018 WL 283780, at *4 (Tex.
App.—Fort Worth Jan. 4, 2018, no pet.) (mem. op.). The term generally refers to
articles bearing intimate relation or association to the person of the testator. Id.; see
also Dearman v. Dutschmann, 739 S.W.2d 454, 455 (Tex. App.—Corpus Christi
1987, writ denied) (explaining that “personal effects” are “articles of personal
property” that bear an intimate relation to a person, such as “clothing, jewelry, and
similar chattels”); Teaff v. Ritchey, 622 S.W.2d 589, 591–92 (Tex. App.—Amarillo
1981, no writ) (defining “personal effects” to include items such as “clothes, toilet
articles, eye glasses[,] and dentures”); First Methodist Episcopal Church S. v.
Anderson, 110 S.W.2d 1177, 1182 (Tex. App.—Dallas 1937, writ dism’d) (finding
“personal effects” to mean “articles pertaining to or associated with the person of
the deceased, such as wearing apparel, luggage, jewelry, and the like”).
      [W]here the meaning of the language used in the will has been settled
      by usage and sanctioned by judicial decisions, it is 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.
Stephens v. Beard, 485 S.W.3d 914, 917 (Tex. 2016) (alteration in original) (quoting
Mitchell v. Mitchell, 244 S.W.2d 803, 806 (Tex. 1951)). As was the case in Stephens,


                                           6
Mildred’s will does not clearly demonstrate an intent to use “personal effects”
contrary to its well-settled legal usage. See id.
       Mineral interests do not fall within the typical definition of personal effects.
Thus, based on the will’s language, it does not appear that Mildred intended
“personal effects” to include any of her real property. The first paragraph states that
the will was executed “for the purpose of the distribution of [Mildred’s] entire estate,
real, personal[,] and mixed.” Despite this language, Mildred specifically provided
Appellant her personal effects only. We must presume that Mildred placed nothing
meaningless or superfluous in her will. See id. Accordingly, some meaning must
be attributed to Mildred’s choice to limit her description of effects to only personal
effects.
       Additionally, Mildred’s reference to “real, personal[,] and mixed” property
confirms that she knew distinctions existed between such different types of property.
See Neal, 2018 WL 283780, at *4. With this understanding, Mildred chose to
provide Appellant only her personal effects. Moreover, it is well settled that mineral
interests are interests in real property, but minerals become personal property when
severed or extracted from the land. See W.B. Johnson Drilling Co. v. Lacy, 336
S.W.2d 230, 234 (Tex. App.—Eastland 1960, no writ). Nothing in the record
indicates any of the minerals in question had been extracted or severed prior to
Mildred’s death. Accordingly, Mildred’s mineral interests were clearly real property
when her will took effect and, thus, would not fall within the personal effects
described for Appellant. See Clyde v. Hamilton, 414 S.W.2d 434, 438 (Tex. 1967)
(explaining that unaccrued royalties and the right to them are interests in land, not
personal property). Based on the reasons above, the trial court was correct in
construing personal effects as a limited bequest.
       Mildred’s will does not contain a residuary clause. As a result, the trial court
had to interpret a will that failed to dispose of all of Mildred’s property. Although
                                           7
not discussed by Appellant, this court recognizes that “[t]he mere making of a will
is evidence that the testator had no intent to die intestate and creates a presumption
that the testator intended to dispose of his entire estate, and that he did not intend to
die intestate as to the whole or any part of his property.” Shriner’s, 610 S.W.2d at
151. While this presumption is powerful, it is not strong enough to empower a court
to write a residuary clause into a will where none previously existed. Alexander v.
Botsford, 439 S.W.2d 414, 416 (Tex. App.—Dallas 1969, writ ref’d n.r.e.). When a
testatrix intentionally or unintentionally fails to provide for the complete disposition
of her property, courts must hold that the testatrix died intestate as to the omitted
property. Kaufhold v. McIver, 682 S.W.2d 660, 666 (Tex. App.—Houston [1st
Dist.] 1984, writ ref’d n.r.e.). Since Mildred failed to provide for the disposition of
any property other than her personal effects, the trial court was correct in finding
that Mildred died intestate as to her property other than her personal effects. We
overrule Appellant’s first issue.
      Appellant asserts in his second issue that the trial court erred in finding that
he misapplied estate property entrusted to his care. His only argument in support of
this contention is that he was the sole beneficiary of Mildred’s entire estate under
the will. Thus, Appellant’s second issue appears to be dependent on his first issue
concerning the construction of “personal effects.” Accordingly, our disposition of
Appellant’s first issue is also dispositive of his second issue. Moreover, Appellant
failed to appropriately cite to authorities and the record in support of his second
issue. See TEX. R. APP. P. 38.1(i); see also Flores v. Benavides, No. 11-15-00060-
CV, 2017 WL 962664, at *1 (Tex. App.—Eastland Mar. 9, 2017, no pet.) (mem.
op.). We overrule Appellant’s second issue.




                                            8
                                         This Court’s Ruling
        We affirm the orders of the trial court.




                                                           KEITH STRETCHER
                                                           JUSTICE


October 31, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.




        3
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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