Olivia Olivarez Rodriguez and Gabriel Rodriguez v. Francisco Rodriguez Garza, In Re of the Estate of Lilia R. Guerra, Eusebia R. Corona, Petra R. Rodriguez, and Apolinar Rodriguez--Appeal from County Court at Law of Starr County

MEMORANDUM OPINION
No. 04-06-00139-CV
Olivia Olivarez RODRIGUEZ and Gabriel Rodriguez,
Appellants
v.

Francisca Rodriguez GARZA, The Estate of Lilia R. Guerra, Eusebia R. Corona,

Petra R. Rodriguez, and Apolinar Rodriguez,

Appellees
From the County Court at Law, Starr County, Texas
Trial Court No. PR-98-37(B)
Honorable Romero Molina, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: July 25, 2007

 

AFFIRMED

 

Appellants Olivia Olivarez Rodriguez and Gabriel Rodriguez appeal the trial court's summary judgment, which declares that appellees, Francisca Rodriguez Garza, the Estate of Lilia R. Guerra, Eusebia R. Corona, Petra R. Rodriguez, and Apolinar Rodriguez, are the true owners of certain real property bequeathed in a will. We affirm the trial court's judgment.

 

Background

Maria Lopez de Pe a ("Pe a") executed a will on January 22, 1943. One paragraph in the will addresses the disposition of the nine tracts of land that are the subject of the underlying lawsuit. The paragraph is set forth as follows:

It is my will that all the rest and residue of my property, both real and personal and of any nature and kind whatsoever, and wherever situated of which I shall die seized and possessed, shall pass to and be vested in fee simple title on my nephew, Santiago Rodriguez, Jr., son of my sister Eusebia Lopez de Rodriguez, to be owned and enjoyed by him with God's and my blessings forever. I make this gift and bequest because I helped to rear my said nephew from his birth and I look upon him as my own son, and I want to declare him to be my sole heir. But should he die without lawful issue of his body, then, and in that event, it is my will and wish that all of my aforesaid property shall pass to and be vested in fee simple in my sister, the said Eusebia Lopez de Rodriguez, her heirs and their descendants per stirpes, to be enjoyed by her, or her said heirs together with God's and my blessings forever.

When Pe a died, her will was admitted to probate in the constitutional county court of Starr County. On July 29, 1957, that court entered a final order. With regard to the nine tracts of land, the order stated:

And it further appearing to the Court that all of the remainder of the lands owned by Maria Lopez Vda. de Pena, including all funds in the bank, as well as all real estate and personal property were bequeathed and given to Santiago Rodriguez, Jr., and all of the debts known to exist against said estate, with the exception of the costs of Court in the closing of such estate, have been paid, it is therefore ordered, adjudged and decreed by the Court that the said Santiago Rodriguez, Sr. and Trinidad Rodriguez, as Executors of the Estate of Maria Lopez Vda. de Pena, deceased, pay over and deliver all of the remainder of such property, including cash on hand, cattle, personal property and all of the remaining estate held by them as described by such will.

Santiago Rodriguez, Jr. ("Santiago") died intestate on October 19, 1984. He was survived by his wife, Olivia Olivarez Rodriguez, and one adopted son, Gabriel Rodriguez (collectively "appellants"), who remained in possession of the nine tracts of land after Santiago's death. Francisca Rodriguez Garza, the Estate of Lilia R. Guerra, Eusebia R. Corona, Petra R. Rodriguez, and Apolinar Rodriguez (appellees), the heirs and descendants of Eusebia Lopez de Rodriguez, filed the underlying lawsuit against appellants alleging that appellees are the lawful owners of the nine tracts of land. The parties filed cross-motions for summary judgment. After a hearing, the trial court granted appellees' motion for partial summary judgment, declaring that appellees were the true owners of the nine tracts of land, and denied appellants' motion. The trial court severed all other claims and issues into another cause, making the partial summary judgment final and appealable. This appeal followed. (1)

Standard of Review

Appellees moved for summary judgment on both traditional and no-evidence grounds. We apply the well-established de novo standard of review to summary judgments. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When both parties move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence of both parties, determine all questions presented, and render the judgment that the trial court should have rendered. See Bradley v. State ex. rel. White, 990 S.W.2d 245, 247 (Tex. 1999). Because the trial court's judgment does not specify the grounds relied upon for its ruling, we must affirm the judgment if any of the theories advanced are meritorious. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

Construction of the Will

Appellants contend that the trial court erred in granting appellees' motion for summary judgment because there is a genuine issue of material fact regarding the construction of Pe a's will. Specifically, appellants argue that a fact issue exists with regard to: (1) whether Pe a intended to give Santiago a fee simple absolute; and (2) whether the phrase "lawful issue of his body" includes adopted children.

A. Construction Rules

We look to the intent of the testator in construing a will. McGill v. Johnson, 799 S.W.2d 673, 674 (Tex. 1990). If possible, all provisions will be harmonized to give effect to that intent. Cooley v. Williams, 31 S.W.3d 810, 812 (Tex. App.-Houston [1st Dist.] 2000, no pet.).

B. Interest Given to Santiago

Appellees contend that the will is clear and unequivocal in its devise to Santiago of a fee simple interest subject to an executory interest in favor of appellees. We agree. A fee simple 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. Cooley, 31 S.W.3d at 813. Thus, a fee simple estate subject to an executory limitation exists when a person conveys an estate in fee simple to another person but also provides that the estate will be divested in favor of a third person if a certain stated event occurs. See Restatement (First) of Property 46(1) (1936).

Here, Pe a's will clearly states that Pe a wanted the property to "be vested in fee simple title" in Santiago, but it also clearly states that if a certain event occurred - if Santiago died "without lawful issue of his body" - the property should "be vested in fee simple" in appellees, thus necessarily divesting Santiago of the property. Therefore, we hold that the interest conveyed to Santiago in the will is a fee simple estate subject to an executory limitation. See Restatement (First) of Property 46(1) illus. 1 (1936).

Appellants assert that Pe a's will grants a fee simple estate to Santiago and that the sentence addressing what happens after Santiago's death, which includes the phrase "[i]t is my will and wish," renders any attempted devise to appellees ambiguous and inapplicable. (2) In support of their argument, appellants cite several cases for the proposition that a clear grant of property in fee simple absolute cannot be diminished by a subsequent ambiguous clause in the same instrument. See Bullington v. Estate of Belcher, 665 S.W.2d 517 (Tex. App.-Austin 1983, writ ref'd n.r.e.); Bergin v. Bergin, 159 Tex. 83, 315 S.W.2d 943 (1958); Ricketts v. Alliance Life Ins. Co., 135 S.W.2d 725 (Tex. Civ. App.-Amarillo 1939, writ dism'd judgm't cor.); Gilliam v. Mahon, 231 S.W. 712 (Tex. Comm'n App. 1921, judgm't adopted). However, each of the cases cited by appellants is distinguishable from this case.

In Ricketts and Bullington, the courts held that precatory language, such as "it is my desire" and "it is my desire and request" rendered will provisions ambiguous and inapplicable. Ricketts, 135 S.W.2d at 730; Bullington, 665 S.W.2d at 518-19. In both cases, the testators used mandatory language, such as "I give," "devise," and "bequeath" in previous provisions of their wills. None of the language deemed precatory in Ricketts and Bullington was used in this case. In the first provision, which appellants argue is an express grant in fee simple absolute, Pe a stated that "[i]t [was her] will" that her residual estate go to Santiago. In the second provision, Pe a stated that if Santiago died without lawful issue of his body, "[i]t [was her] will and wish" that her estate go to appellees. In Ricketts and Bullington, the testators changed the language completely from one provision to the next and used only the words "desire" or "request" in the subsequent provisions. Here, Pe a used the same language in both provisions and merely added to the second provision that it was not only her "will" but also her "wish" that appellees take her estate if Santiago died without lawful issue of his body. Ricketts and Bullington therefore do not apply to this case.

Bergin and Gilliam also do not support appellants' position. In fact, Bergin would seem to support appellees' position. In Bergin, the testator's will devised certain property to his wife but then in a subsequent provision, explained that he wanted the property to go to other specified people in the event of his wife's death or remarriage. 315 S.W.2d at 945. The court held that the language of the second provision was clear and that it limited the wife's interest in the property to a life estate. Id. at 947. In Gilliam, the testator's will granted all his property to his wife and then stated that his granddaughter was to "have an equal share with all [his] heirs when the property [was] divided." 231 S.W. at 712. The court held that the second provision was ambiguous, particularly in light of the fact that it spoke of heirs who the testator had not directly included in the will. Id. at 713. Unlike the testator in Gilliam, Pe a directly indicated that she wanted her sister, her sister's heirs, and their descendants to receive the property in the event Santiago died without lawful issue of his body.

Because the wording "it is my will and wish" does not create an ambiguity, we cannot say that appellants raised a genuine issue of material fact regarding whether Pe a intended to grant a fee simple absolute to Santiago.

C. Adopted Children

Appellants also assert that there is a genuine issue of material fact as to whether "lawful issue of his body" included Santiago's adopted son. In determining whether an adopted child takes under a will, we focus on the intent of the testator, and we apply the law as it existed at the time the will was executed. See Penland v. Agnich, 940 S.W.2d 324, 326 (Tex. App.-Dallas 1997, pet. denied); see also Vaughn v. Vaughn, 161 Tex. 104, 109-110, 337 S.W.2d 793, 796-97 (1960). In this case, the applicable law was the 1931 adoption statute, which provided a presumption that adopted children did not take under a will executed by a third person unless the will disclosed a contrary intent. Penland, 940 S.W.2d at 326. Appellants correctly cite Penland for the proposition that under the 1931 statute, the phrase "lawful issue" by itself included adopted relatives. However, appellants do not cite, and we have not located, any case in which a court has held that the phrase "lawful issue of his body" included adopted relatives under the 1931 statute. To the contrary, Texas cases decided using the 1931 statute hold that such language excluded adopted relatives. See Cutrer v. Cutrer, 162 Tex. 166, 172, 345 S.W.2d 513, 517 (1961) ("heirs of his body" ordinarily embraces only lineal blood descendants); Penland, 940 S.W.2d at 327 ("of the body" commonly construed as excluding adopted persons); Nail v. Thompson, 806 S.W.2d 599, 602 (Tex. App.-Fort Worth 1991, no writ) ("lawful heirs . . . born of the body" excluded adopted children). In addition, Pe a's will does not disclose a contrary intent; that is, her will does not include any additional language indicating that she intended "lawful issue of his body" to include adopted children.

Therefore, because the phrase "lawful issue of his body" excluded adopted children at the time the will was executed, and because Pe a's will did not indicate a contrary intent, we conclude that appellants failed to raise a fact issue regarding whether "lawful issue of his body" included Santiago's adopted son.

Effect of 1957 Order

Appellants contend that the trial court erred in granting appellees' motion for partial summary judgment because the 1957 order closing Pe a's estate was final and not subject to collateral attack. Appellants first raised this issue in the trial court in a motion to dismiss appellees' underlying lawsuit based on lack of jurisdiction. The court granted appellants' motion to dismiss, and appellees appealed to this court. We held that the trial court had jurisdiction to decide the title issue, and we remanded the cause back to that court. Id. Now, appellants raise the same issue that we decided in our prior opinion. We are bound by the law of the case. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Accordingly, we conclude that the 1957 order did not preclude the trial court from granting appellees' motion for partial summary judgment.

Adverse Possession

Appellees moved for a no-evidence summary judgment on appellants' affirmative defense of adverse possession. On appeal, appellants contend that the trial court erred in granting appellees' summary judgment motion because appellants provided some evidence of all of the elements of adverse possession. "Adverse possession is statutorily defined as 'an actual and visible appropriation of real property, commenced and continued under a claim of right that is inconsistent with and is hostile to the claim of another person.'" Rhodes v. Cahill, 802 S.W.2d 643, 645 (Tex. 1990) (quoting Tex. Civ. Prac. & Rem. Code Ann. 16.021(1) (Vernon 2002)). To gain title to real property by adverse possession, a person must be in possession of the property for three years after the true owner's cause of action accrued. See Tex. Civ. Prac. & Rem. Code Ann. 16.024 (Vernon 2002).

Appellees contend that summary judgment was proper because appellants' possession did not become adverse until Santiago died without lawful issue of his body in October of 1984, and that because appellees filed suit in July of 1986, there is no evidence that appellants established three years of adverse possession. Appellants counter that the 1957 order marked the beginning of their adverse possession of the nine tracts of land because the order defeased appellees of their interest in the property and was therefore hostile to appellees' claim to the property. Appellants cite to King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003), in support and argue that a judgment that defeases a party's interest in property is such a "notorious act of ouster" that it causes the statute of limitation to begin running against a party and her heirs. In King Ranch, the court held that a judgment in a previous trespass to try title suit in the same case repudiated any claim of title by the non-possessing co-tenant and her heirs and started the time period running for adverse possession. King Ranch, 118 S.W.3d at 757.

King Ranch is distinguishable from this case. First, this case does not involve a co-tenancy. Second, the 1957 order in this case was not hostile to appellees' claim to the property. In King Ranch, the judgment explicitly gave "all the right title and interest" to the possessing co-tenant and ordered that he be "quieted in his possession" of the property. Id. In contrast, the 1957 order here stated that the property was "bequeathed and given to" Santiago and ordered the executors to deliver the property "as described by [the] will." As previously discussed, the will provided that the property be given to Santiago but that it go to appellees in the event Santiago died without lawful issue of his body. Therefore, by stating that the property was "given to" Santiago and ordering that it be delivered to him "as described by [the] will," the order was entirely consistent with the will. Thus, appellants' possession of the property did not become adverse until Santiago died without lawful issue of his body. Appellants could not gain title to the property by adverse possession because appellees filed suit within three years of the date of Santiago's death. See Tex. Civ. Prac. & Rem. Code Ann. 16.024 (Vernon 2002).

Because it was Santiago's death, and not the 1957 order, that marked the beginning of appellants' adverse possession, appellants have failed to present more than a scintilla of evidence to raise a genuine issue of material fact regarding whether they adversely possessed the property for the requisite three years. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983) (holding that "[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence").

Summary Judgment Evidence

Appellants contend that the trial court erred in considering an affidavit in support of appellees' motion for partial summary judgment because the affidavit contained legal conclusions. Specifically, appellants point out that the affidavit stated that "[p]laintiffs are true owners of all royalty interests, rights of reverter, and other rights of lessor under this lease" with regard to four of the nine tracts of land at issue. A legal conclusion in an affidavit is insufficient to establish the existence of a fact in support of a motion for summary judgment. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984). However, even if the trial court erred, we will not reverse a trial court's erroneous evidentiary ruling unless the party requesting the reversal can demonstrate that the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; Timothy Patton, Summary Judgments in Texas: Practice, Procedure and Review 6.10[5] (2006). Assuming, without deciding, that the trial court erred in considering the affidavit, appellants do not show that the court's consideration of the affidavit caused the court to render an improper judgment. In addition to the affidavit, the summary-judgment evidence offered in support of appellees' motion for partial summary judgment included a copy of Pe a's will. Even without the alleged legal conclusions in the affidavit, Pe a's will is sufficient to justify the court's conclusion that appellees are the true owners of the nine tracts of land. Because appellants have not demonstrated that the trial court's consideration of the affidavit caused the rendition of an improper judgment, we conclude that any error in the consideration of the affidavit was harmless. Conclusion

We affirm the trial court's judgment.

Rebecca Simmons, Justice

1. This is the third time this case has been before us. See Garza v. Rodriguez, 87 S.W.3d 628 (Tex. App.-San Antonio 2002, pet. denied); Garza v. Rodriguez, 18 S.W.3d 694 (Tex. App.-San Antonio 2000, no pet.).

2. The sentence that allegedly creates an ambiguity states: "But should he die without lawful issue of his body, then, and in that event, it is my will and wish that all of my aforesaid property shall pass to and be vested in fee simple in my sister, the said Eusebia Lopez de Rodriguez, her heirs and their descendants per stirpes, to be enjoyed by her, or her said heirs together with God's and my blessings forever."