Opinion issued August 13, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00550-CV
                            ———————————
                         LARRY BREWER, Appellant
                                        V.
     DEBRA MOORE FOUNTAIN, PETA FOUNDATION, AND PAWS
            SHELTER OF CENTRAL TEXAS, Appellees


                On Appeal from the County Court at Law No. 2
                             Hays County, Texas
                     Trial Court Case No. 16-0071-P-B


                                  OPINION

      This case involves the construction of the last will and testament and first
codicil of Ralph O. Shepley, Jr.1 At issue is the precise nature of Larry Brewer and

1
      The Texas Supreme Court transferred this appeal from the Court of Appeals for
      the Third District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer
      of cases between courts of appeals).
Linda Brewer’s right of first refusal for certain real property.2 We reverse and
remand the case to the trial court for further proceedings.

                              Factual and Procedural History

A.    Background

      Ralph O. Shepley, Jr. executed his will in 2012 and his first codicil to the

will in 2014. Shepley also executed a second codicil, but it is not at issue in this

appeal. Shepley died in 2016. The beneficiary of the will was his daughter, Debra

Moore Fountain. Following Shepley’s death, Fountain filed an application in the

trial court to have the will and two codicils admitted to probate and to be named

administrator of his estate. The trial court appointed Fountain as the sole

administrator of Shepley’s estate and granted issuance of letters of administration.

      Paws Shelter of Central Texas (“PAWS”) and People for the Ethical

Treatment of Animals (“PETA”) intervened in the probate proceeding. Each

nonprofit charitable organization asserted an interest as charitable beneficiaries.

Larry Brewer also intervened as another beneficiary of the estate and the trustee of

the Ralph O. Shepley Pet Trust.3




2
      Linda Brewer is not a party to this case.
3
      In the first codicil, Shepley appointed Mr. Brewer as the trustee of the pet trust to
      facilitate Mr. Brewer’s care of Shepley’s pets after Shepley’s death.
                                            2
B.    The Real Property at Issue

      This dispute centers on real property. Shepley owned a 191.48-acre ranch

that contains a residence in the northern part of the property that sits on a small

lake. The access road to the residence is long, and most of the property is

accessible only by an interior road over the dam that creates the lake.

      In the first codicil, Shepley devised the ranch under these terms:

      I direct that my real property, consisting of 191.48 +/- acres together
      with all improvements thereon (the “Real Property”) be sold by
      [Fountain] and the proceeds divided into three equal shares and
      distributed to the following individuals and entities under the
      following conditions and terms:

      1. A one-third (1/3) share to DEBRA MOORE FOUNTAIN;
      provided, however, if DEBRA MOORE FOUNTAIN fails to survive
      me, then I leave this one-third (1/3) share to the descendants of
      DEBRA MOORE FOUNTAIN who survive me, per stirpes.

      2. A one-third (1/3) share to PAWS . . . ; provided that if PAWS is not
      in existence at the time of my death, then I direct that [Fountain]
      select an organization with the same vision and mission to receive this
      gift.

      3. A one-third (1/3) share to . . . PETA; provided that if PETA is not
      in existence at the time of my death, then I direct that [Fountain]
      select an organization with the same vision and mission to receive this
      gift.

      PROVIDED, HOWEVER, the sale of the Real Property is to be
      handled pursuant to the following guidelines: I direct that [Fountain]
      shall obtain an MAI4 appraisal on the Real Property from a state

4
      The term “MAI” refers to a Membership of the Appraisal Institute held by
      licensed professionals who provide services regarding real property, including
      opinions of value. See Gregg County Appraisal Dist. v. Laidlaw Waste Sys., Inc.,
                                          3
      certified general real estate appraiser qualified to perform rural ranch
      property appraisals. The appraiser shall determine the value as of the
      date of my death and this value shall be used in any Inventory filed in
      connection with the probate of my estate.

      PROVIDED FURTHER, Larry Brewer and Linda Brewer or the
      survivor thereof, shall have the first right to purchase any or all of the
      Real Property from the Estate at a sales price equal to the Appraised
      value of the Real Property as determined above. I suggest that this
      right of first refusal shall last for a period of six (6) months from the
      date of the appraisal.

Thus, Shepley devised an option to purchase any or all of the ranch to the Brewers

and an undivided one-third interest in the sale proceeds of the property to Fountain,

PAWS, and PETA.

C.    The Genesis of the Dispute

      In 2017, Fountain filed an application to retain Vance E. Powell, III, MAI,

as a proposed appraiser of the property. The trial court then approved him as the

appraiser pursuant to the instructions in the first codicil. Powell appraised the

property as of the date of Shepley’s death. After initially valuing the property at

$4,560,000, Powell lowered the market value to $4,400,000.5 After obtaining this


      907 S.W.2d 12, 18 n.2 (Tex. App.—Tyler 1995, writ denied); Olson v. Harris
      County, 807 S.W.2d 594, 595 n.2 (Tex. App.—Houston [1st Dist.] 1990, writ
      denied).
5
      According to the appraisal, the value of the total property estate is $4,400,000,
      which consists of the homestead estate (4.83 acres) valued at $473,000 and the
      vacant ranch (186.65 acres) valued at $3,960,000. The sum of the values of the
      homestead estate and the vacant ranch is $4,433,000. The trial court later used
      $4,433,000 to represent the actual value of the property.

                                          4
appraisal value, the Brewers timely exercised their option to purchase a portion of

the property—namely, 21.3 acres6—for $794,849.45 based on the appraised value

of the homestead and the value per acre for the vacant ranch. This tract of land is

located in the center of the ranch, which includes Shepley’s homestead, a majority

of the lake, and the access road to the homestead and other portions of the

property. The land selected by the Brewers creates an orphan tract of seven acres to

the northwest of the lake. The other remainder tract of land—specifically, the bulk

of the property that is east of the ravine—is inaccessible by the road access

because the Brewers’ carve-out includes the entire access road.

      Fountain then sought court approval to have Powell re-appraise the property

as partitioned tracts–one that the Brewers sought to purchase and one that they

declined to purchase. The next day, PAWS and PETA objected, contending that

the Brewers’ proposed purchase price in the earnest money contract violated the

appraisal process set forth in the first codicil because the first codicil did not

authorize a per-acre valuation or otherwise include express terms to determine the

value of any partitioned area of the property.




6
      According to the proposed earnest money contract, the Brewers exercised their
      option to purchase “20 acres, more or less” of the property, but the trial court later
      adjusted the acreage to 21.3 acres based on an estimate of the area of an aerial
      photograph showing the area the Brewers had opted to buy.

                                            5
      In early 2018, following a hearing on Fountain’s motion, the trial court

ordered the appraisal of “the estate’s real property according to the tracts resulting

from the partition proposed by [the Brewers].” Powell conducted the appraisal of

the 21.3 acres and provided a report to the parties. According to Powell’s appraisal

report, the “Market Value-Recommended Compensation” for the 21.3 acres

selected by the Brewers as of Shepley’s date of death was $2,869,592. Mr. Brewer

objected, and Fountain, PAWS, and PETA filed responses opposing his objection.

      The trial court held a hearing on the Brewer’s objection. The Brewers

asserted that Powell’s new appraisal over-valued the tract they sought to purchase.

In response, Fountain and the charitable beneficiaries contended that the appraisal

accurately reflected the value of the land the Brewers carved from the whole,

representing the most valuable portions of the homestead and ranch land.

      The trial court ruled that the Brewers had the right to purchase any or all of

the land for the full appraised value of $4,433,333. If, however, the Brewers

exercised their option to purchase less than the whole, then the trial court would

require them to pay $4,433,333 and grant them the right to receive an offset

reimbursement7 of the purchase price up to $3,500,000. Mr. Brewer appealed this




7
      Neither Shepley’s last will and testament nor first codicil contains an offset
      provision.

                                          6
order.8 In three issues, Brewer contends that the trial court erred as a matter of law

by requiring the Brewers to pay the full value of the property after they chose to

purchase only a portion of the property, and to the extent the testamentary

documents are ambiguous, then remand is appropriate to elicit extrinsic evidence

about Shepley’s testamentary intent.

             Trial Court’s Construction of Unambiguous Will was Error

A.    Standard of review

      We review a trial court’s construction of unambiguous language in a will de

novo. Jinkins v. Jinkins, 522 S.W.3d 771, 779 (Tex. App.—Houston [1st Dist.]

2017, no pet.). When interpreting a will, courts focus on the testator’s intent as
8
      Generally, outside a few, mostly statutory exceptions, a party may appeal only
      from a final judgment. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.
      2001). In probate proceedings, a final order or judgment is not required when the
      order or judgment “actually disposes of every pending claim and party or unless it
      clearly and unequivocally states that it finally disposes of all claims and all
      parties.” Id. at 205. This exception applies in probate proceedings when “the order
      must be one that finally disposes of and is conclusive of the issue or controverted
      question for which that particular part of the proceeding is brought.” Vickery v.
      Gordon, No. 14-11-00812-CV, 2012 WL 3089409, at *3 (Tex. App.—Houston
      [14th Dist.] July 31, 2012, no pet.). The purpose of this exception is “because
      controlling, intermediate issues may need appellate review to prevent an error
      from harming later phases of the proceeding.” De Ayala v. Mackie, 193 S.W.3d
      575, 578 (Tex. 2006); In re Estate of Adams, No. 14-12-00064-CV, 2013 WL
      84925, at *2 (Tex. App.—Houston [14th Dist.] Jan. 8, 2013, no pet.) (mem. op.)
      (“A probate proceeding consists of a continuing series of events, in which the
      probate court may make decisions at various points in the administration of the
      estate on which later decisions will be based.”). Here, the trial court’s order states
      that it is “final and appealable as it conclusively disposes of the issue for which
      this part of the proceeding was brought.” Moreover, this order conclusively
      addressed the dispute involving the land for which Brewer appeals. We therefore
      conclude that the trial court’s order is final and appealable and that we therefore
      have jurisdiction over this appeal.
                                            7
reflected in the instrument as a whole. San Antonio Area Found. v. Lang, 35

S.W.3d 636, 639 (Tex. 2000); see Welch v. Straach, 531 S.W.2d 319, 322 (Tex.

1975) (concluding that “all parts of the testamentary writings . . . are to be

harmonized and given effect”). The court must ascertain the testator’s intent from

the language expressed within the four corners of the will. Shriner’s Hosp. for

Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980); Rosen v.

Wells Fargo Bank Tex., N.A., 114 S.W.3d 145, 158 (Tex. App.—Austin 2003, no

pet.). Thus, the court must scrutinize the words actually used by the testator instead

of the words he may have intended to write. Hysaw v. Dawkins, 483 S.W.3d 1, 7

(Tex. 2016). “In this light, courts must not redraft wills to vary or add provisions

‘under the guise of construction of the language of the will’ to reach a presumed

intent.” Lang, 35 S.W.3d at 639 (quoting Stahl, 610 S.W.2d at 151). When a trial

court’s construction of an unambiguous will is erroneous, an appellate court will

reverse the trial court’s judgment and render the judgment the trial court should

have rendered. See, e.g., Estate of Neal, No. 02-16-00381-CV, 2018 WL 283780,

at *7 (Tex. App.—Fort Worth Jan. 4, 2018, no pet. h.) (mem. op. on reh’g); In re

Estate of Hernandez, No. 05-16-01350-CV, 2018 WL 525762, at *4 (Tex. App.—

Dallas Jan. 24, 2018, no pet.) (mem. op.); In re Estate of Slaughter, 305 S.W.3d

804, 812 (Tex. App.—Texarkana 2010, no pet.).




                                          8
B.   The first codicil unambiguously authorized partial purchase

      The first codicil provides the Brewers “the first right to purchase any or all

of the Real Property from the Estate at a sales price equal to the Appraised value of

the Real Property.” In other words, the Brewers may purchase the entire 190-plus

acres or any part of it. In determining the sale price for the property, the first

codicil articulated a formula to ascertain the value of the selected property:

      PROVIDED, HOWEVER, the sale of the Real Property is to be
      handled pursuant to the following guidelines: I direct that [Fountain]
      shall obtain an MAI appraisal on the Real Property from a state
      certified general real estate appraiser qualified to perform rural ranch
      property appraisals. The appraiser shall determine the value as of the
      date of my death and this value shall be used in any Inventory filed in
      connection with the probate of my estate.

      We hold that the will and codicil do not conflict and their meaning is clear

and unambiguous. In re Estate of Hunt, 908 S.W.2d 483, 485 (Tex. App.—San

Antonio 1995, writ denied) (citing El Paso Nat’l Bank v. Shriners Hosp. for

Crippled Children, 615 S.W.2d 184, 185 (Tex. 1981)) (“When there are no

dispositive words that are capable of more than one meaning, a will is considered

unambiguous for the purposes of will construction.”); Estate of Morgenroth, 05-

15-00777-CV, 2016 WL 4010053, at *3 (Tex. App.—Dallas July 25, 2016, no

pet.) (explaining that ambiguity does not arise when parties disagree or “because of

simply lack of clarity”). Considering the language of the will and the first codicil,




                                          9
we conclude that Shepley sufficiently expressed his intent to grant the Brewers the

right to purchase all or part of 191.48 acres.

      Powell valued the total tract at $4,400,000. By requiring the Brewers to pay

the full $4,433,0009 when exercising their right of first refusal, the trial court

effectively required the Brewers to buy all the land, despite the will and first

codicil’s unambiguous terms. See generally Hicks v. Castille, 313 S.W.3d 874, 883

(Tex. App.—Amarillo 2010, pet. denied) (holding that a property owner, who held

a right of first refusal with respect to four acres abutting his property, has a right to

sell a portion of his entire land because holding otherwise would “cause the right

of first refusal to represent an unreasonable restraint on alienation by prohibiting

[the property owner] from selling any portion of the tract less than [the entire land

he owns]”).

      The trial court erred in requiring the Brewers to pay full value for the

property when they opted to purchase a portion, negating their ability to buy any of

it in accordance with the plain language of the will and the first codicil. See, e.g.,

In re Estate of Slaughter, 305 S.W.3d at 812 (reversing the trial court’s erroneous

construction of a will and rendering the judgment the trial court should have

rendered). We also note that the offset reimbursement provision in the trial court’s

order deviates from the unambiguous language of the will and the first codicil.


9
      See supra note 5, at 4.
                                           10
There is no mention of or reference to an offset reimbursement provision in the

will or the first codicil, nor do either document allude to it indirectly. Courts must

not redraft wills to vary or add provisions “under the guise of construction of the

language of the will” to reach a presumed intent. Stahl, 610 S.W.2d at 151. The

trial court therefore erred by adding an offset provision not originally contemplated

by the will or first codicil as part of the court’s ruling that the Brewers were

required to pay the full value of the ranch to option to purchase any party of it.

                                        Conclusion

      Having concluded that the Brewers may purchase any portion of the

property and the value of their selected portion must be appraised as of Shepley’s

date of death without regard to any diminution in value to the remainder of the

property, we reverse the judgment of the trial court and remand the case to the trial

court for further proceedings consistent with this Opinion.

                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Lloyd, Landau, and Countiss.




                                          11
