MODIFY and AFFIRM; and Opinion Filed July 25, 2016.




                                             Court of Appeals
                                                               S     In The


                                      Fifth District of Texas at Dallas
                                                          No. 05-15-00777-CV

               IN THE ESTATE OF JUDY DARLENE MORGENROTH, DECEASED
                                       On Appeal from the Collin County Probate
                                                 Collin County, Texas
                                         Trial Court Cause No. PB1-1017-2011

                                            MEMORANDUM OPINION
                                         Before Justices Bridges, Lang, and O'Neill 1
                                                 Opinion by Justice O'Neill
            Appellant Josh Trescott, widower of Judy Darlene Morgenroth’s daughter, appeals the

trial court’s order granting summary judgment in favor of appellee Buddy Morgenroth, son of

Judy Darlene Morgenroth. In two issues, appellant contends that the trial court (1) granted

summary judgment on grounds not contained in appellee’s motion for summary judgment; and,

(2) abused its discretion when it did not apply prevailing legal principals to determine Tiffany

Trescott is an eligible member of the class gift contained in the will. We affirm the judgment of

the trial court.

                                                                      Background

            Judy Darlene Morgenroth (Mother) died testate on May 16, 2011. Tiffany Trescott

(Daughter) died exactly ninety days after Mother’s death. On December 27, 2011, the probate


    1
        The Hon. Michael J. O'Neill, Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
court judge admitted Mother’s will to probate, and appointed Son as the Independent Executor of

the will. Mother left Buddy Morgenroth (Son) her diamond wedding band, guns, grandfather

clock, and rare coins. Mother left Daughter her diamond engagement ring and her other jewelry.

The will contained a residuary clause:

              All the remaining property, real and otherwise, of every kind and
       description, wheresoever situated, which I may own or have the right to dispose
       of at the time of my decease, I give, devise and bequeath to my surviving
       children, TIFFANY DAWN TRESCOTT and BUDDY LEE MORGENROTH,
       share and share alike, remainder to the survivor of them.

       Son filed a motion to interpret the will on August 25, 2014. The parties then filed

competing motions for summary judgment requesting the Court to determine whether Son was

the sole heir to Mother’s estate. The trial court granted summary judgment construing Mother’s

will “created a life estate for [Daughter] and [Son] during their lives, with any property of the

Estate of [Mother] still in existence upon the death of the first of [Daughter] and [Son] to pass to

the survivor of them.” This appeal followed.

                                            Discussion

       A. Standard of Review

       The standard for reviewing a traditional summary judgment is well-established. See Sysco

Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548–49 (Tex. 1985); First Union Nat. Bank v. Richmont Capital Partners I, L.P.,

168 S.W.3d 917, 923 (Tex. App.––Dallas 2005, no pet.). We review a summary judgment de

novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v.

Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.––Dallas 2000, pet. denied); First Union Nat.

Bank, 168 S.W.3d at 923. A reviewing court may determine all questions presented; it may

affirm the summary judgment entered, reverse and render a judgment for the other party, if

appropriate, or reverse and remand if neither party has met its summary judgment burden.

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Calhoun v. Killian, 888 S.W.2d 51, 54 (Tex. App.––Tyler 1994, writ denied); Hackberry Creek

Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 50 (Tex. App.—

Dallas 2006, pet. denied).

       B. Son’s Motion for Summary Judgment

       In his first issue, appellant contends that the trial court erroneously granted summary

judgment on grounds that were not contained in Son’s summary judgment motion.

       A trial court cannot grant a motion for summary judgment on grounds that were not

included in the motion, and likewise a Court of Appeals cannot uphold it on unstated grounds.”

Roberts v. Southwest Texas Methodist Hosp., 811 S.W.2d 141, 145 (Tex. App.––San Antonio

1991, writ denied). “When a motion for summary judgment asserts grounds A and B, it cannot

be upheld on grounds C and D, which were not asserted, even if the summary judgment proof

supports them.” Id. at 145; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,

342 (Tex. 1993)

       Appellant moved for summary judgment on the grounds that the residuary clause defined

the class members for a class gift. Son’s motion for summary judgment requested the trial court

to determine Son as the sole heir to Mother’s estate on the ground that the residuary clause of the

will created a survivorship clause, which Daughter did not satisfy. On May 8, 2015, the trial

court ordered that the phrase “remainder to the survivor of them” in the residuary clause created

a life estate for Son and Daughter with any property still in existence upon the death of either

Son or Daughter to pass to the survivor of them. While neither Son nor appellant’s motion for

summary judgment explicitly argued that the residuary clause created a life estate for each

sibling, Son attached a brief in support of his motion for summary judgment which included the

assertion that the trial court could interpret the unambiguous will: Mother “wished for her

residuary estate to go to her surviving children, [Daughter and Son], and the remainder to the

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survivor of the two of them. Here, the survivor of the two of them is [Son].” This argument is the

foundation of the trial court’s interpretation of Mother’s will; Son does not argue that the

residuary clause created a life estate, but that Son and Daughter both take in the residuary with

the limitation that any remainder of the residue upon the death of one sibling should transfer to

the surviving sibling. The trial court granted summary judgment in Son’s favor on this ground.

Further, both parties requested the trial court to interpret the will: Son filed a “Motion to Re-

Interpret Will,” and appellant requested “the [c]ourt to interpret the terms of [Mother’s] will” in

his motion for summary judgment.

       Because the trial court issued summary judgment on the grounds of an argument in Son’s

motion and interpreted the will at the request of both parties, the trial court did not err in entering

an order construing the will in Son’s favor. We overrule appellant’s first issue.

       C. Residuary Clause

       In his second issue, appellant contends that the trial court erred when it concluded that

Daughter was not an eligible beneficiary of a class gift established by the residuary clause.

       The determination of whether a will is ambiguous is a question of law. Harris v. Hines,

137 S.W.3d 898, 903 (Tex. App.––Texarkana 2004, no pet.); Hurley v. Moody Nat’l Bank of

Galveston, 98 S.W.3d 307, 310 (Tex. App.––Houston [1st Dist.] 2003, no pet.). 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. In re Estate of Slaughter, 305

S.W.3d 804, 808 (Tex. App.—Texarkana 2010, no pet.); Steger v. Muenster Drilling Co., Inc.,

134 S.W.3d 359, 373 (Tex. App.—Fort Worth 2003, pet. denied).

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

expressed in the will. In re Estate of Slaughter, 305 S.W.3d at 809. When the will itself is

unambiguous, we do not go beyond the will’s specific terms in search of the testator’s intent. San

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Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). A will is ambiguous only when

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

meaning. In re Estate of Slaughter, 305 S.W.3d at 809. Such ambiguity does not arise merely

because the parties disagree on the will’s interpretation or because of a simple lack of clarity. See

DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999) (construing a contract).

A devise of an estate will be deemed a fee simple, unless limited by express words, and a

condition which tends to defeat an estate will be strictly construed. Benson v. Greenville Nat.

Exch. Bank, 253 S.W.2d 918, 922 (Tex. Civ. App.—Texarkana 1952, writ ref'd n.r.e.).

       A “fee simple absolute” is an estate over which the owner has unlimited power of

disposition in perpetuity without condition or limitation. Walker v. Foss, 930 S.W.2d 701, 706

(Tex. App.—San Antonio 1996, no writ). An “executory limitation” is an event which, if it

occurs, automatically divests one of devised property. Deviney v. NationsBank, 993 S.W.2d 443,

448 (Tex. App.—Waco 1999, pet. denied). A fee simple estate subject to an executory limitation

is called a “determinable fee simple estate.” Id. This is a fee simple interest in every respect,

except that it passes to another if the contingency happens. Barker v. Rosenthal, 875 S.W.2d 779,

781 (Tex. App.—Houston [1st Dist.] 1994, no writ). The recipient upon the contingency’s

happening has an “executory interest.” Deviney, 993 S.W.2d at 448–49. A life estate is created

by words showing intent to give the right to possess, use, and enjoy the property during life. See

Eversole v. Williams, 943 S.W.2d 141, 143 (Tex. App.—Houston [1st Dist.] 1997, no writ).

There can be no life estate in property, real or personal, without a remainder. Benson, 253

S.W.2d at 922. It may not be necessary always to name the remainderman, in which case the law

would define him. Id. But in such case the will must clearly and unequivocally provide for a life

estate, thus to overcome the presumption that the testator intended to give the greater estate. Id.

Additionally, the life tenant may expressly be given unlimited power to dispose of the property

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during his lifetime; if such power is exercised, it defeats the remainderman’s interest in the

disposed-of property. See Edds v. Mitchell, 184 S.W.2d 823, 825 (Tex. 1945). However, the life

tenant may not devise any of that property that remains at her death. Montgomery v. Browder,

930 S.W.2d 772, 777 (Tex. App.—Amarillo, writ denied). No particular language is required to

make a life estate. Welch v. Straach, 531 S.W.2d 319, 321 (Tex. 1975); Cooley v. Williams, 31

S.W.3d 810, 813 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

       The residuary clause devised any remaining property to Son and daughter to “share and

share alike, remainder to the survivor of them.” Though both parties disagree as to the

interpretation of the residuary clause, both parties concede the residuary clause is unambiguous.

Following competing motions for summary judgment, the trial court issued an order interpreting

the clause “remainder to the survivor of them” to have created a life estate for Son and Daughter,

with any property of Mother still in existence upon the death of the first of Son or Daughter to

pass to the other. We construe the will to read that Mother intended to devise a one-half fee

simple determinable interest to both Son and Daughter, rather than a life estate. Appellant argues

that the residuary clause established a class gift, and that Daughter was entitled to receiving a

share of the class gift when she survived the mother by more than 120 hours. We disagree that

the residuary clause created a class gift.

       The trial court erred when it concluded that the residuary clause granted Son and

Daughter a life estate in the residue of Mother’s estate. Though there is no specific formula of

words required to create a life estate, the instrument must clearly and unequivocally provide for a

life estate, thus to overcome the presumption that the testator intended to give the greater estate.

Benson, 253 S.W.2d at 922. Here, the residuary clause does not explicitly grant the residue to

Son and Daughter for their lives––using a phrase such as “as long as they live” or “during their

lives.” See Welch, 531 S.W.2d at 321. Because the residuary clause does not clearly and

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unequivocally provide a life estate, there is insufficient evidence to overcome the presumption

that Mother intended to give her residuary in fee simple––the greater estate. This interpretation is

supported by the first phrase at issue: requiring Son and Daughter to “share and share alike” in

Mother’s residue. This phrase standing alone conveys a one-half fee simple absolute interest for

both Son and Daughter. The second phrase, “remainder to the survivor of them,” clearly gives

whatever interest Son or Daughter still holds in the residue to the other when the first one of

them dies. The occurrence of this “executory limitation”––the event in which either sibling

predeceases the other while holding any interest in the residue––automatically divests the

predecessor of the remaining devised property and the surviving sibling––giving the surviving

sibling an executory interest. To read these two phrases together––without nullifying the second

phrase and while preserving the greatest estate possible in the first phrase––is to construe

Mother’s devise to Son and Daughter as a determinable fee simple. See Cooley, 31 S.W.3d at

813; First Nat. Bank of Corsicana v. DeFoe, 384 S.W.2d 926, 928 (Tex. Civ. App.—Waco 1964,

writ ref’d). Son held an executory interest in Daughter’s share of Mother’s residue; the

contingency was Daughter predeceasing Son with some of Mother’s residual estate. Daughter

died before Son while still holding a one-half interest in Mother’s residue, therefore Son takes.

The determination that the residuary clause created two determinable fee simples followed by

executory interests harmonizes both phrases at issue in Mother’s will. We now turn to whether

this fee simple determinable devise was given to a class of devisees.

       Appellant contends that a Fourth Court of Appeals decision, Gregg v. Jones, should have

governed the trial court’s analysis. See Gregg v. Jones, 699 S.W.2d 378, 379 (Tex. App.—San

Antonio 1985, writ ref’d n.r.e.). Beyond that Gregg is merely persuasive authority to this Court,

the residuary clause in Gregg is not analogous to the instant case. In Gregg, the testator devised

the residue of her estate to her “beloved husband . . . and any children that might survive [her], or

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the survivors or survivor of them . . . to share and share alike . . . .” Gregg, 699 S.W.2d at 379.

While Gregg uses the phrases “survivor of them” and “share and share alike,” the usage of these

phrases is in a different context. The residuary clause in Gregg described legatees as members of

a class––“any children that might survive me, or the survivors or survivor of them”––rather than

naming the legatees as individuals. The residuary clause in this case devises the residuary to her

“surviving children,” but continues to name Son and Daughter. Where legatees are named as

individuals and also are described as a class, the gift by name ordinarily constitutes a gift to

individuals, the class description being added merely by way of identification. Benson, 253

S.W.2d at 924. Thus, Mother’s residuary clause did not establish a class gift. We overrule

appellant’s second issue.

                                           Conclusion

       Resolving appellant’s issues against him, we modify the trial court’s judgment in part––

holding that the residuary clause created a one-half determinable fee simple subject to an

executory limitation for both Son and Daughter, and the executory limitation was one sibling

predeceasing the other while still holding any interest in Mother’s residue. We affirm the trial

court’s judgment as modified.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O'NEILL
                                                     JUSTICE, ASSIGNED



150777F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE ESTATE OF JUDY DARLENE                         On Appeal from the Collin County Probate,
MORGENROTH, DECEASED                                  Collin County, Texas
                                                      Trial Court Cause No. PB1-1017-2011.
No. 05-15-00777-CV                                    Opinion delivered by Justice O'Neill.
                                                      Justices Bridges and Lang participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:

       The residuary clause created a one-half determinable fee simple subject to an
       executory limitation for both Buddy Lee Morgenroth and Tiffany Dawn Trescott,
       and the executory limitation was one sibling predeceasing the other while still
       holding any interest in Judy Darlene Morgenroth’s residue.

It is ORDERED that, as modified, the judgment of the trial court is AFFIRMED.

       It is ORDERED that appellee BUDDY LEE MORGENROTH recover his costs of this
appeal from appellant JOSH TRESCOTT.


Judgment entered this 25th day of July, 2016.




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