                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-12-00627-CV

                                      Paula Lehne NETHERTON,
                                               Appellant

                                             v.
        COWAN, Individually and as the Jr., Shannon Sucher, and James Dennis Lehne,
 Jacintha COWAN, Individually and as the Independent Executor of the Estate of James Dennis
                Lehne, Jr., Shannon Sucher, and James Dennis Lehne, III,
                                        Appellees

                     From the 198th Judicial District Court, Menard County, Texas
                                     Trial Court No. 2011-05270
                             Honorable M. Rex Emerson, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 14, 2013

AFFIRMED

           This appeal involves the construction of James Dennis Lehne, Sr.’s will. At issue is whether

Paula Lehne Netherton (“Paula”) or James Dennis Lehne, Jr.’s Estate and his beneficiaries

(collectively “Jr.’s Estate”) are the owners of 423.911 acres in Menard County (“the Property”)

bequeathed by James Dennis Lehne, Sr. in his will. In the trial court, both parties moved for

summary judgment. The trial court granted the motion for summary judgment filed by Jr.’s Estate.

Paula now appeals.
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On October 26, 1972, James Dennis Lehne, Sr. made the following will:

              THAT I, James Dennis Lehne, Sr. of Menard County, Texas, realizing the
       uncertainty of life and desiring to settle my worldly affairs while I have the strength
       and understanding so to do, hereby make and publish this my Last Will and
       Testament hereby revoking all wills heretofore made by me, and do direct:

                                                 I.

              It is my will that all my just and legal debts be paid out of my estate,
       including expenses of last sickness, funeral expenses and cost of administration as
       soon as the same can be accomplished in accordance with good business principals,
       by my executor hereinafter named.

                                                 II.


               I hereby will and bequeath unto my beloved son, Edwin Ruthven Lehne, for
       the term of his natural life, all that certain 423.911 acres of land out of the West
       part of those certain lands as conveyed to George Lehne in Partition Deed dated
       April 1, 1931 . . . .

             That the said Edwin Ruthven Lehne may enjoy the rents, revenues and
       income from said tract of land for and during the term of his natural life.

               Being mindful of the fact that my said son, Edwin Ruthven Lehne is
       incompetent, and James Dennis Lehne, Jr. is duly appointed and qualified guardian
       of his estate, and being desirous of the fact that the above described land is willed
       and bequeathed to Edwin Ruthven Lehne for the term of his natural life so as that
       he will have the comforts of life from the rents and revenues therefrom, it is my
       will that in the event James Dennis Jr. predeceases Edwin Ruthven Lehne, I hereby
       appoint and suggest to the County Court of Menard County, Texas that it appoint
       William Louis Lehne, my nephew, as guardian of his estate, should James Dennis
       Lehne, Jr. predecease Edwin Ruthven Lehne.

                                                III.

                I hereby will and bequeath unto my other beloved son, James Dennis Lehne,
       Jr., the following property:
            (a) The remainder fee simple title in and to the 423.911 acres of land
                hereinabove described, a life estate of which was bequeathed to Edwin
                Ruthven Lehne, to have and to hold unto the said James Dennis Lehne, Jr.,
                the remainder fee simple title to said land;
            (b) I further hereby will and bequeath unto the said James Dennis Lehne, Jr. all
                other property . . . SAVE AND EXCEPT, of course, the life estate in the
                said 423.911 acres of land; to have and to hold unto him, the said James
                Dennis Lehne, Jr.
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                                                        IV.

                   I hereby name, constitute and appoint the said James Dennis Lehne, Jr. sole
           and independent executor of this my Last Will and Testament, direct that he act
           without bond and be free from the control and interference of any Court whatsoever
           in the settlement of my estate SAVE ONLY that he offer this Will for probate and
           cause an inventory, appraisement and list of claims of my estate to be filed.

                                                        V.

                  In the event James Dennis Lehne, Jr. predeceases me or dies before the
           property in paragraph III vests in him, and only in that event, I hereby will and
           bequeath unto my daughter-in-law, Dorothy Jean Lehne and her daughter, Paula
           Jean Crawley, share and share alike, all of the property bequeathed to James
           Dennis Lehne, Jr. in paragraph III above.

                   THIS I MAKE AND PUBLISH as my Last Will, hereunto signing and
           subscribing my name, this 26th day of October 1972 in the presence of Helen K.
           Willis and Janice Zesch, who attest the same at my request.

(emphasis added).

           Sixth months after James Dennis Lehne, Sr. made the above will, his son James Dennis

Lehne, Jr. adopted Paula Jean Crawley. Thus, in March 1973, Paula legally became Paula Lehne. 1

Four years later, on May 20, 1977, James Dennis Lehne, Sr. died and his will was admitted to

probate. Twenty-three years later, on May 8, 2000, Dorothy Jean Lehne died intestate. Paula was

her only heir. Seven years later, on June 20, 2007, James Dennis Lehne, Jr. died. Less than a year

later, on March 5, 2008, Edwin Ruthven Lehne died. Thus, James Dennis Lehne, Jr. lived longer

than his father James Dennis Lehne, Sr., but predeceased his brother, Edwin Ruthven Lehne.

           Both parties moved for summary judgment. At issue in the summary judgment proceeding

and now on appeal is what James Dennis Lehne, Sr. meant by the phrase in paragraph V “or dies

before the property in paragraph III vests in him.” (emphasis added). Paula argues that under the

will, James Dennis Lehne, Jr. did not hold a vested remainder interest in the Property and that



1
    In 1999, Paula married Fred Netherton and thus became Paula Lehne Netherton.

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because he died prior to the expiration of the life estate, the Property never fully vested in him. In

other words, Paula contends that James Dennis Lehne, Jr.’s remainder fee simple interest was

contingent on him living longer than his brother Edwin. She emphasizes by including the phrase

“or dies before the property in paragraph III vests in him,” the testator must have meant something

different than merely surviving the testator. Jr.’s Estate disagrees, contending that the remainder

fee simple interest vested in James Dennis Lehne, Jr. at the time of his father’s death and that his

interest was not contingent on him outliving his brother. Jr.’s Estate stresses that the phrase “or

dies before the property in paragraph III vests in him” contains no explicit survivorship language

and that a trial court cannot imply such survivorship language. The trial court agreed with Jr.’s

Estate and granted its motion for summary judgment.

       A party moving for summary judgment must show that no genuine issue of material fact

exists and that the party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop.

Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Here, both motions for summary judgment were

based on a question of law. See Eckels v. Davis, 111 S.W.3d 687, 693 (Tex. App.—Fort Worth

2003, pet. denied). When both parties move for summary judgment on the same issue and the trial

court grants one motion and denies the other, we consider the summary judgment evidence

presented by both sides, determine all questions presented, and if we determine that the trial court

erred, render the judgment the trial court should have rendered. Id.

       The construction of a will is a question of law. Eckels, 111 S.W.3d at 694. In construing a

will, we ascertain the intent of the testator from the four corners of the will. Id. The question “is

not what the testator intended to write, but the meaning of the words he or she actually used.” In

re Estate of Slaughter, 305 S.W.3d 804, 809 (Tex. App.—Texarkana 2010, no pet.). “In this regard,

the terms of the will are to be ascribed their plain, ordinary, and generally accepted meanings,
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unless the instrument itself shows such terms to have been used in a technical or a different sense.”

Id. If the language is unambiguous, we “construe the will based on the express language used

therein” and “[n]o speculation or conjecture regarding the intent of the testat[or] is permissible.”

Frost Nat’l Bank v. Newton, 554 S.W.2d 149, 153 (Tex. 1977). Whether the language in a will is

ambiguous is a question of law. In re Estate of Slaughter, 305 S.W.3d at 808. If we can give a

“certain or definite legal meaning or interpretation to the words used, the will is unambiguous,”

and we construe it as a matter of law from the four corners of the will. Id. “A will is ambiguous

only when the established rules of construction leave its terms susceptible to more than one

reasonable meaning.” Id. at 809. A will is not ambiguous simply “because the parties disagree on

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

       Under established rules of construction, we attempt to harmonize all parts of a will and

thus “a latter clause in a will must be deemed to affirm, not to contradict, an earlier clause in the

same will.” Id.; see Eckels, 111 S.W.3d at 694. If possible, we construe the will so that no provision

is rendered meaningless. Eckels, 111 S.W.3d at 694. And, finally, “Texas law favors a construction

that allows vesting at the earliest possible time, and Texas courts will not construe a remainder as

contingent when it can reasonably be taken as vested.” McGill v. Johnson, 799 S.W.2d 673, 675

(Tex. 1990) (interpreting “at the death of my said son” to refer only to the time of enjoyment or

possession, not to the time the remainder vested).

       In applying these rules of construction, we first note that the phrase in Paragraph V “or dies

before the property in paragraph III vests in him” contains no explicit survivorship language.

Instead, it states that the Property in paragraph III must “vest” in James Dennis Lehne, Jr. In

Bufford v. Holliman, 10 Tex. 560, 572 (Tex. 1853), the Texas Supreme Court defined a vested

remainder as



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       an immediate right of present enjoyment or a present fixed right of future
       enjoyment. A grant of an estate to A for life, and, after his death, to B in fee, is a
       fixed right of future enjoyment in B, and is consequently, a vested remainder. It is
       a fixed interest, to take effect in possession after a particular estate is spent.

In Bufford, the testator bequeathed property to his wife “during her natural life, and at her death

‘to become the property of my own children, as well as of Alfred, my wife’s son.’” Id. at 561. The

court explained that the “law favors the construction that remainders are vested at the death of the

testator, so as not to cut off the heirs of the remaindermen who may happen to die before the death

of the tenant for life.” Id. at 572. Thus the supreme court held that the remainder to the testator’s

children and to his step-son vested at the time of testator’s death and did not remain in contingency

until the death of the life tenant. Id. And, because “the bequest became an actual estate in the

legatees at the death of the testator, it follows that the interest of such of the remaindermen as died

before the termination of the life estate descended to their heirs.” Id. at 573.

       In Guilliams v. Koonsman, 154 Tex. 401, 406, 279 S.W.2d 579, 582 (1955), the supreme

court further explained,

       While it has been said that “[t]he law favors the vesting of estates at the earliest
       possible period, and will not construe a remainder as contingent where it can
       reasonably be taken as vested,” Caples v. Ward, 107 Tex. 341, 179 S.W. 856, 858
       (1915), nevertheless, when the will makes survival a condition precedent to the
       vesting of the remainder, it must be held to be contingent. In 36 Tex. Jur.,
       Remainders and Reversions, § 7, p. 877, it is said: “The contingency upon which
       vesting or ownership is dependent may be the survival of the named taker at the
       time when the grant or devise is limited to take effect in possession or it may be
       another event the happening of which is uncertain.” See also 33 Am. Jur. 535;
       Powell on Real Property, Vol. 2, § 278, p. 474 and § 328, p. 721. The rule for
       determining whether a remainder is vested or contingent is thus stated by Gray in
       his work on The Rule Against Perpetuities: “If the conditional element is
       incorporated into the description of, or into the gift to the remainder-man, then the
       remainder is contingent; but if, after words giving a vested interest, a clause is
       added divesting it, the remainder is vested.”

Id. (emphasis added). Thus, under Texas law, when a testator bequeaths a life estate in property

and a remainder interest in the same property, the remainder interest is considered vested upon the


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death of the testator. In re Townley Bypass Unified Credit Trust, 252 S.W.3d 715, 717 (Tex.

App.—Texarkana 2008, pet. denied).

       Here, in paragraph III of the will, the testator clearly bequeathed to James Dennis Lehne,

Jr. the “remainder fee simple title in and to the 423.911 acres of land described, a life estate of

which was bequeathed to Edwin Ruthven Lehne, to have and to hold unto the said James Dennis

Lehne, Jr., the remainder fee simple title to said land.” This language does not make the remainder

fee simple contingent on anything other than, of course, the death of the testator. Much later, in

paragraph V of the will, the testator states that “[i]n the event James Dennis Lehne, Jr. predeceases

me or dies before the property in paragraph III vests in him, and only in that event . . . .” (emphasis

added). Again, this language in paragraph V has no explicit survivorship language. See McGill,

799 S.W.2d at 675 (failing to find any definite language in the will or codicil showing that the

sisters’ remainder interests were intended to “vest” only upon the life tenant’s death); Shearrer v.

Holley, 952 S.W.2d 74, 78 (Tex. App.—San Antonio 1997, no writ) (“Appellees have failed to

cite a single case in which a condition of survival has been implied when the instrument at issue

contained neither a provision requiring survival nor a gift over in the event the remainderman

predeceases the life tenant. We will not imply such a condition when none was expressed by the

Grantors.”). Instead, according to the will, the property in paragraph III “vested” in James Dennis

Lehne, Jr. at the time of the testator’s death. Thus, in harmonizing all parts of the will, we construe

“dies before the property in paragraph III vests in him” to be simply describing in more detail the

same event as the first clause “predeceases me.” This construction is also consistent with allowing

vesting at the earliest possible time. See McGill, 799 S.W.2d at 675 (“Texas law favors a

construction that allows vesting at the earliest possible time, and Texas courts will not construe a

remainder as contingent when it can reasonably be taken as vested.”). Therefore, we agree with



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Jr.’s Estate and hold that the trial court did not err in granting the motion for summary judgment

filed by Jr.’s Estate.

        As an alternative argument, Paula argues that the phrase “dies before the property in

paragraph III vests in him” is ambiguous and that a question of fact exists. We disagree with Paula.

As explained, the term “vests” has a definite legal meaning, and we can construe from the four

corners of the will when the property in paragraph III vested in James Dennis Lehne, Jr. See In re

Estate of Slaughter, 305 S.W.3d at 808 (“If the court can give a certain or definite legal meaning

or interpretation to the words used, the will is unambiguous, and the court should construe it as a

matter of law.”).

        We affirm the judgment of the trial court.


                                                  Karen Angelini, Justice




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