In re Estate of Richard W. Rogers, Deceased--Appeal from 198th Judicial District Court of Mason County

MEMORANDUM OPINION
No. 04-06-00555-CV
IN RE ESTATE OF Richard W. ROGERS, Deceased
From the 198th Judicial District Court, Mason County, Texas
Trial Court No. 44823
Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: May 2, 2007

 

AFFIRMED

 

The appellants appeal the trial court's judgment interpreting a will. The appellants contend that the trial court erred in concluding: (1) the will devised a life estate in real property to Steven Ryan Jordan, with a remainder interest to his children; and (2) the property that passed by intestacy under the will had been exhausted by the payment of administrative expenses. We affirm the trial court's judgment.

Background

Before his death in 2004, Richard W. Rogers executed a holographic will in 1994 that reads as follows:

The State of Texas

County of Mason

 

Know all men by these Presents:

 

That I, Richard W. Rogers, a resident of Mason County, Texas, being of Sound and disposing mind and memory, and over the age of 21 years and not being actuated by any fraud, duress, or on [sic] due influence here by make, declare and publish this to be my last will and testament, expressly revoking all Wills and Codicils hereto fore [sic] made by me.

 

RWR [initials] I hereby declare that out of the approximately 1346.5 acre ranch on which I reside, the following property is to be distributed to Ryan Jordan, the son of Dina Jordan. I also give to him all my cattle, horses, goats, sheep, hogs, and any other animal I own and all my tools saddles pertaining to the ranch. Also I give him to him [sic] all my houses which are located on my property.

 

(RWR) [initials] I hereby give, devise and bequeath to Robert L. Turner all of my antiques and [indecipherable] which I own whether located in my residence or other houses on my property.

 

(RWR) [initials] I hereby give nothing to my sister Patty Rogers Moss (Gail Patricia Rogers) or Martin John Rogers my brother.

 

(RWR) [initials] I hereby devised [sic] that Ryan Jordan the owner of my property on my death may never sell his property but be handed down to to [sic] his children.

 

(RWR) [initials] I hereby give nothing to my nieces and nephews.

 

I hereby appoint Robert L. Turner to be the Executor of my will. Robert L. Turner resides in Galveston, Texas.

 

I direct that my executor shall receive no compensation in any amount whatsoever for the services rendered by him in that capacity to my estate.

 

1. To retain any and all my property received for as long as such retention appears advisable.

 

2. When paying legacies or distributing my estate, to make payments or distributions wholly and partly in kind by alloting [sic] and transferring specific monies or other personal or real properties therein in the manner deemed advisable by my executor.

 

In Witness Whereof I, Richard W. Rogers, hereby set my hand to this Last Will, on each page of which I have placed my initials, on this the 21st day of March, 1994, at Mason Texas.

 

In a joint pre-trial order, the parties agreed to bifurcate the trial in the underlying cause with the issue of whether the 1994 will was revoked being tried to a jury (1) and the issue of the will's construction being tried to the court. In their order, the parties agreed "that if the 1994 Will is admitted to probate, its construction and its dispositive scheme can be interpreted by the court as a matter of law." In its judgment, the trial court declared that Rogers devised all of his real property and interests in real property to Steven Ryan Jordan for the term of his natural life, with the remainder upon his death to his children in equal shares. In its conclusions of law, the trial court stated that the court "[r]eview[ed] the four corners of the Will" and made its determination with regard to the construction of the will "as a matter of law." Although the judgment also declared that Rogers's grandnieces and grandnephews were the rightful heirs of Rogers for property passing by intestacy, the judgment declared that they would receive nothing because the property that would have passed by intestacy had been exhausted by the payment of administrative expenses. In its written findings, the trial court stated the value of the estate that would pass by intestacy was approximately $76,311.09; however, the temporary administrator had spent over $79,000.00 through February of 2006, and the jury awarded $98,750.00 in attorney's fees to the executor and Steven Ryan Jordan, bringing the total expenses to at least $177,750.00, which exceeds the value of all property which might pass by intestacy.

Discussion

One of the primary presumptions that guides the interpretation of wills is the disfavor of any construction that would render the decedent intestate. McGill v. Johnson, 799 S.W.2d 673, 676 (Tex. 1990). "The fact that [a testator] left a will implies that [he] did not intend to die intestate." Ferguson v. Ferguson, 45 S.W.2d 1096, 1097 (Tex. 1931).

In construing 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). Determining a testator's intent from the four corners of a will requires a careful examination of the words used. Id. If the will is unambiguous, a court should not go beyond specific terms in search of the testator's intent. Id. The testator's intention must be ascertained by viewing the will in its entirety. Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex. App.--Austin 1992, no pet.); Disabled American Veterans v. Mullin, 773 S.W.2d 408, 410 (Tex. App.--San Antonio 1989, no pet.). If the intent can be ascertained from the language of the will, then any particular paragraph, clause or sentence, which, if considered alone, might indicate a contrary intention, must yield to the intention manifested by the whole instrument. Welch v. Straach, 531 S.W.2d 319, 321 (Tex. 1975) (quoting McMurray v. Stanley, 69 Tex. 227, 6 S.W. 412 (1887)); Johnson, 840 S.W.2d at 672; Mullin, 773 S.W.2d at 410. Absent ambiguity, the construction of a will is a matter of law. Armstrong v. Hixon, 206 S.W.3d 175, 180 (Tex. App.--Corpus Christi 2006, pet. filed); Penland v. Agnich, 940 S.W.2d 324, 326 (Tex. App.--Dallas 1997, writ denied). An ambiguity exists only when the will uses a word that is open to more than one meaning. Lang, 35 S.W.3d at 639, 641; In re Estate of Hunt, 908 S.W.2d 483, 484-85 (Tex. App.--San Antonio 1995, writ denied).

The presumption against intestacy is bolstered in the instant case by the express provisions included in the will disinheriting Rogers's brother, sister, nieces and nephews. Not only does the existence of the will imply that Rogers did not intend to die intestate, see Ferguson, 45 S.W.2d at 1097, Rogers expressly stated his intent to disinherit his family.

The appellants' argument focuses on the following sentence, "I hereby declare that out of the approximately 1346.5 acre ranch on which I reside, the following property is to be distributed to Ryan Jordan, son of Dina Jordan." The appellants would have this court isolate the quoted sentence from the context of the will and declare that one of the primary assets owned by Rogers should pass by intestacy. This argument is not only contrary to both the presumption against intestacy and Rogers's express intent to disinherit his family, but it is also contrary to the unambiguous language of the will in its entirety and the intent expressed therein.

After identifying the 1346.5 acres constituting his ranch, Rogers's inclusion of the term "following" in relation to the distribution to Jordan creates some initial confusion; however, his subsequent use of the term "also" in the next sentence in relation to his gifts of all animals, tools, and saddles pertaining to the ranch clarifies that the first sentence was intended by Rogers to devise or distribute the property that was identified. In addition, the clause that gives Jordan all of the houses located on the property bolsters Rogers's intention to give Jordan the accompanying land. Furthermore, the clause that restricts Jordan from selling the property identifies Jordan as the "owner of my property." Accordingly, viewing the will in its entirety, Rogers's intent can be ascertained from the language of the will as a whole, and the inclusion of the term "following" in the quoted sentence must yield to the intention manifested by the whole instrument. Accordingly, the trial court did not err in concluding that Rogers devised his real property to Jordan for life, with the remainder to Jordan's children.

A trial court's findings are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing evidence supporting a jury's answer. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). The appellants challenge the trial court's findings that the value of the estate that would pass by intestacy was approximately $76,311.09, and that the total expenses, including $79,000.00 in expenditures by the temporary administrator and the jury's award of $98,750.00 in attorney's fees to the executor and Steven Ryan Jordan, exceeded the value of all property which might pass by intestacy.

Wayne Hoffman, the temporary administrator of the estate, testified at the hearing on the construction of the will. He stated that the values of the assets listed in the inventory were appraised values, and he identified the appraisers. Hoffman stated that the value of the items that would pass by intestacy was about $76,000.00 and that about $177,000.00 had been spent on administrative expenses to date. Hoffman's testimony is sufficient to support the trial court's findings. (2) Cf. Eldridge v. Marshall Nat'l Bank, 527 S.W.2d 222, 229-30 (Tex. App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.) (holding issue regarding right of heirs to property to be passed intestate moot where expenses exceeded value of property).

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

 

1. The jury found that the 1994 will was not revoked.

2. Although the appellants claim the trial court's findings deprive them of a right to an accounting, the Texas Probate Code contains specific provisions detailing the procedures to be followed: (1) for demanding an accounting; and (2) if a required accounting is not provided. See Tex. Prob. Code Ann. 400, 406 (Vernon 2003).