Willadeen Hogan, et al. v. Christine Massey Schaffer, Individually and as Independent Executrix of the Estate of Beady S.Cotton, Deceased, et al.--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-00-006-CV

WILLADEEN HOGAN, ET AL.,

Appellants

v.

CHRISTINE MASSEY SCHAFFER,

INDIVIDUALLY AND AS

INDEPENDENT EXECUTRIX

OF THE ESTATE OF

BEADY S. COTTON, DECEASED, ET AL.,

Appellees

From the 74th District Court

McLennan County, Texas

Trial Court # 92-3050-3

MEMORANDUM OPINION

In this appeal we must decide whether a joint will was contractual in nature and, if so, whether the terms of the will include after-acquired property. Because the issues are settled, we write this memorandum opinion to briefly advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.1.

Meady E. Cotton (M.E.) and Beady S. Cotton (Beady) were married. In 1951, they signed a joint will, each leaving all property owned at death to the other and providing:

Upon the death of the survivor of us, . . . we give, bequeath and devise whatever estate is remaining in the hands of such survivor, real, personal, and mixed, one-half to the surviving nearest of kin of M.E. Cotton, and one-half to the surviving nearest of kin of Beady Cotton.

After M.E. died in 1963, Beady sought probate of the joint will. The probate court admitted the will to probate as M.E. s last will and appointed her as independent executrix of his estate. She thus was the beneficiary of his entire estate under the 1951 will.

In 1988, Beady signed a new will, which gave her niece, Christine Massey Schaffer (Schaffer), all of her property (except $5,000 designated for the Church of Christ in Mart) and named her as independent executrix. Beady died in 1992, and on Schaffer s application, the probate court admitted the 1988 will to probate and named her as independent executrix.

Willadeen Hogan and others filed suit against Schaffer and the Church in the District Court seeking a declaratory judgment that the 1951 will was contractual in nature and asking that a constructive trust be imposed on all property which Beady owned when she died. The petition listed all of the surviving nearest of kin of both M.E. and Beady. During the course of the proceeding, some of the plaintiffs died and their successors were joined. We will refer to those persons found in the court s Summary Declaratory Judgment to be surviving kin of M.E. and Beady collectively as Plaintiffs.

The property included in Beady s estate falls into two general categories: (1) five accounts in financial institutions (the accounts); and (2) three tracts of land (the real estate). The parties agree that the accounts were not part of M.E. s estate; thus they are after acquired property. Schaffer contends that disposition of the accounts is controlled by survivorship agreements, even if the 1951 will is contractual. It is undisputed that the real estate was owned by M.E. and Beady at the time of his death and still owned by Beady at her death.

Each party filed a motion for summary judgment. Plaintiffs asserted that as a matter of law (1) the 1951 joint will created a contract, binding on Beady when she died; and (2) a constructive trust should be imposed on all property owned by Beady to carry out the terms of the contractual will, including the accounts whether they are probate assets or non-testamentary transfers. Schaffer s motion simply sought a take nothing judgment.

In its Summary Declaratory Judgment, the court:

" Found the 1951 will to be contractual in nature;

" Interpreted the will as not applying to after acquired property ;

" Declared Schaffer and the Church to be the owners of the accounts, as set forth in Beady s 1988 will;

" Imposed a constructive trust on the real estate for the benefit of the Plaintiffs; and

" Determined the names and fractional ownership interests of the surviving next of kin of M.E. and Beady.

Plaintiffs and Schaffer gave notice of appeal. Plaintiffs bring four points, all essentially asserting that the court erred when it failed to impose a constructive trust on the accounts. Schaffer contends that the 1951 will was not contractual. We will address her contention first, because if the court was incorrect about the contractual nature of the joint will, she is entitled to a take-nothing judgment.

We have stated the standard of review of a summary judgment many times, citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Here, we have the additional factor that both sides moved for summary judgment: one was granted in part and denied in part and the other was denied. Usually, the denial of a motion for summary judgment is not appealable. Wright v. Wright, 154 Tex. 138, 274 S.W.2d 670, 674 (1955). However, when two opposing parties each file a motion for summary judgment and an appeal results, the appellate court can "determine all questions presented, and may reverse the trial court judgment and render such judgment as the trial court should have rendered, including rendering judgment for the other movant." Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988); see also Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958). If the pertinent facts are undisputed, as here, the court can determine the issues presented as a matter of law. See Reagan v. Marathon Oil Co., 50 S.W.3d 70, 76 (Tex. App. Waco 2001, no pet.). We have examined the record to determine as a matter of law whether the court entered the proper summary judgment. See id.

Proof of the contractual nature of a will may be made by the provisions of the will itself, without resorting to extrinsic evidence. // Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 167-68 (1946). We believe that the joint will has on its face and by its own terms the same indicia of a contract found in other wills declared to be contractual. Novak v. Stevens, 596 S.W.2d 848, 851 (Tex. 1980). As the Supreme Court noted in Novak: It would be manifestly unjust to permit the surviving party to the contract to disavow it and its obligations, as those obligations are incorporated in their will, after the other party has fully performed by abiding by it until his ability to revise it has been terminated by death. Id. at 852 (citing Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621, 624 (1957)). We hold that the joint will of M.E. and Beady was contractual in nature. We overrule Schaffer s issue.

We next consider Plaintiffs assertions about the accounts. The dispute is whether the terms of the 1951 contractual will apply to after acquired property. If, as the court found, they do not, then it does not matter whether the accounts are probate assets or are non-testamentary transfers.

In Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588, 594 (1954), the Court posed the same question which we face: to what property did this joint and mutual will attach. Holding that makers of a contractual will have the right and power to provide that all of the property owned by the survivor at his death shall pass under and be bound by the terms of their will, the Court said: we do not believe such effect should be given to mutual wills unless the intention to do so is set forth in the will by very plain, specific and unambiguous language. In the absence of such clearly expressed intention we feel that the better reasoning supports the rule that after-acquired property owned by the survivor in his or her individual right does not pass. Id. at 595.

The operative language from the will is: whatever estate is remaining in the hands of such survivor. For any part of the estate to be remaining in Beady s hands at the time of her death, it would have had to be part of the M.E. s estate when he died. From this language and the absence of other plain, specific, and unambiguous language, we conclude that the terms of the contractual will of M.E. and Beady do not apply to property owned by Beady at her death that had not been part of M.E. s estate. See id. Plaintiffs points are overruled.

The Summary Declaratory Judgment is affirmed.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed March 13, 2002

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