      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-03-00077-CV



                              Joan Bennett Richardson, Appellant


                                                 v.


Archie Roberts, Executor of the Estate of Alta W. Bennett, Deceased; Opal Parsons; Mike
Lawson; Sarah Cariens; Molly LaMaster; Ben Lawson; Sam Lawson; Wynona Clement;
        Marilyn Eanes; Carolyn Kasprzyk; and Katheryn Matheson, Appellees




             FROM THE COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
          NO. 9145-P, HONORABLE HOWARD S. WARNER, II, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Joan Bennett Richardson appeals a judgment against her in a will construction case.

She argues that the trial court’s grant of summary judgment was in error because (1) the court failed

to follow the rules of will construction; (2) the court impermissibly considered extrinsic evidence;

and (3) to the extent that the will is determined to be ambiguous, disputed factual issues preclude

summary judgment. We reverse the judgment of the trial court and render judgment in favor of

Richardson.
                                         BACKGROUND

               Alta Bennett died on July 4, 2001. She had executed a will on July 27, 1989, which

provides in relevant part that:


       I give, devise, bequeath the rest, residue, and remainder of my estate of whatsoever
       nature and wheresoever situated to Opal Parsons; . . . Alma Lawson; . . . Idell
       Roberts; . . . Wynona Clement; . . . and to Joan Richardson . . ., share and share alike,
       provided they survive me by thirty (30) days, and provided that so long as Joan
       Richardson has not repurchased the real property . . . located at 11610 Vance
       Jackson, Bexar County, San Antonio, Texas. In that event she will receive nothing
       from the estate as that will satisfy her share of the estate.


It is undisputed that Richardson survived Bennett by more than thirty days. Further, the parties have

stipulated that Richardson did not repurchase the real property located at 11610 Vance Jackson,

Bexar County, San Antonio, Texas. The dispute centers on what Bennett meant by “in that event.”

               Archie Roberts, the executor of Bennett’s estate, filed a petition asking the court to

find that the unambiguous language of the will required Richardson to repurchase the property in

order to share under the will. In the alternative, he sought to produce extrinsic evidence to clarify

Bennett’s intent. In her answer, Richardson argued that the unambiguous language of the will

entitled her to a share of the estate because she had not repurchased the property in question. At that

time, she filed a motion for summary judgment claiming that the terms of the will unambiguously

made her a beneficiary. Roberts responded by filing a motion for summary judgment, in which he

restated his original argument and included extrinsic evidence that he claimed shed light on

Bennett’s intent. Finally, Richardson filed a response to Roberts’s motion and included her own




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evidence she claimed was probative of Bennett’s intent. The trial court granted Roberts’s motion

without an explanation and denied Richardson’s. This appeal followed.


                                              DISCUSSION

                In her first issue, Richardson argues that the trial court erred in granting Roberts’s

motion for summary judgment and in denying her motion because the unambiguous language of the

will entitles her to a share of the estate.

                Because the propriety of a summary judgment is a question of law, we review the trial

court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). The

standards for reviewing traditional summary judgments are: (1) the movant for summary judgment

has the burden of showing that no genuine issues of material fact exist and that it is entitled to

judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding

summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every

reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its

favor. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

A party moving for summary judgment must conclusively prove all elements of its cause of action

or defense as a matter of law. Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d

217, 233 (Tex. 1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). When both sides move

for summary judgment, as the parties did in this case, and the court grants one motion but denies the

other, the reviewing court should review both sides’ summary-judgment evidence, determine all




                                                  3
questions presented, and render the judgment the trial court should have rendered. Holy Cross

Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001).

               In constructing a will, the court’s focus is on the testator’s intent. San Antonio Area

Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). The intention of the testator must be ascertained

by viewing the will in its entirety, and we look only at the language found within the four corners

of the will. Id.; Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex. App.—Austin 1992, no writ).

Determining a testator’s intent from the four corners of the will requires a careful examination of the

words used. Id. When the dominant purpose of the testator is first stated, the balance of the will

should be construed in harmony with that statement, if possible. Disabled Am. Veterans v. Mullin,

773 S.W.2d 408, 410 (Tex. App.—San Antonio 1989, no writ). A clearly expressed intention in one

portion will not yield to a doubtful construction of another portion. Heller v. Heller, 269 S.W. 771,

774 (Tex. 1925); First Christian Church v. Moore, 295 S.W.2d 931, 934 (Tex. Civ. App.—Austin

1956, no writ) (quoting Jones’ Unknown Heirs v. Dorchester, 224 S.W. 596, 601 (Tex. Civ.

App.—Amarillo 1920, no writ)). In short, a will should not be read so as to contradict itself if its

apparent contradictions can be reconciled by bringing the various clauses together and deducing a

consistent interpretation from the whole context. Jones’ Unknown Heirs, 224 S.W. at 601. Extrinsic

evidence may not be received as an aid in construing an unambiguous will. Stewart v. Selder, 473

S.W.2d 3, 6 (Tex. 1971).

               In this case, after distributing some property to certain individuals the will leaves the

remainder of Bennett’s estate to five persons, share and share alike, “so long as Joan Richardson has




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not repurchased the real property . . . located at 11610 Vance Jackson.” The meaning of this

sentence is unambiguous: Richardson, not having repurchased the property in question, is entitled

to a share of the estate.

                The will then continues, “In that event she will receive nothing from the estate as that

will satisfy her share of the estate.” The grammatical structure of this sentence leaves it open to two

possible interpretations. First, as Richardson argues, the phrase “in that event” could refer to

Richardson’s failure to fulfill the required condition of the will to not repurchase the property. That

is, Richardson must not have repurchased the real property in order to share in the remainder of the

estate, and the final sentence should read, “In the event Joan Richardson repurchases the real

property, she will receive nothing from the estate as that will satisfy her share in the estate.”

                Roberts argues instead that the word “that” in the phrase “in that event” has as its

antecedent the immediately preceding phrase in the sentence: “so long as Joan Richardson has not

repurchased the real property . . . located at 11610 Vance Jackson.” Under that interpretation, the

sentence in question would read, “In the event that Joan Richardson has not repurchased the real

property, she will receive nothing as that will satisfy her interest in the estate.”

                When read alone, the meaning of the first sentence is unambiguous. Although the

second sentence contains an apparent ambiguity, our rules of construction compel us to resolve any

ambiguity in it in harmony with the meaning of the first sentence. See Jones’ Unknown Heirs, 224

S.W. at 601. Because we can read one of the two interpretations as consistent with the first sentence,

we must discard the alternate reading. Otherwise, we would be reading the will as self-contradictory

when its apparent contradictions can be reconciled. See id.



                                                   5
               Further, when construing a will, we must look at the will as a whole. Johnson v.

McLaughlin, 840 S.W.2d at 672. In the contested clause, the final phrase—“as that will satisfy her

share of the estate” has significance and must be read together with the disputed phrase “in that

event.” Richardson’s “share” of the estate, according to the terms of the will, can only mean either

a share of the rest and residue of the estate or the real property in question. Roberts’s interpretation

of the will can only be supported if we omit that final clause. As a result, we conclude that the

meaning of the second sentence is that if Richardson were to repurchase the property, she would

receive nothing. Because she has not repurchased the property, as a matter of law Richardson shares

in the estate under the terms of the will. Thus, the trial court erred in granting summary judgment

in favor of Roberts. Instead, it should have granted summary judgment in favor of Richardson.

               The parties each submitted evidence with their motions for summary judgment to

support their interpretations of the will. Although that competing evidence might raise a fact

question, we could consider that evidence only if we found an ambiguity in the will. See Stewart,

473 S.W.2d at 6. Because we have held that the will is unambiguous, we will not consider that

evidence. We sustain Richardson’s first issue.1




       1
         In her second issue, Richardson argues that the trial court erred in considering extrinsic
evidence when determining the meaning of the will. In her third issue, she argues that if we were
to determine the will to be ambiguous, fact questions precluded summary judgment in this case.
Because we sustain Richardson’s first issue, we need not address the remainder of her arguments.


                                                   6
                                          CONCLUSION

               We reverse the trial court’s grant of summary judgment and render judgment that

Richardson take a one-fifth share of the residue and remainder of Bennett’s estate, as set forth under

the terms of the will.




                                               __________________________________________

                                               W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Reversed and Rendered

Filed: May 27, 2004




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