Opinion filed January 5, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-10-00032-CV

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JUDY LYNNE BURCHARD, Appellant

V.

MARK DAVID BURCHARD ET AL., Appellees

On Appeal from the County Court

Callahan County, Texas

Trial Court Cause No. 5699

M E M O R A N D U M O P I N I O N

Judy Lynne Burchard appeals a summary judgment granted in favor of Mark David 

Burchard, Denise Renee Burchard Sandifer, and Curtis R. Burchard, in his capacity as 

independent executor of the estate of Joseph David Burchard. Joseph David Burchard, Judy’s1

husband, died in 2005 and left a will naming Curtis Randall Burchard as executor. Curtis filed a 

petition for declaratory judgment asking the trial court to construe certain language in the will:

To MARK DAVID BURCHARD, DENISE RENE BURCHARD 

SANDIFER, and, CURTIS RANDALL BURCHARD, share and share alike, I 

bequeath my one-third (1/3) undivided ownership of Sections 23, 26, 27, 28, 35, 

 

1

Because most of the litigants in this case share the same last name, they will be referred to in this opinion by their first 

names.
2

and 48 in Block 58 and Sections 35, 40, 41, in Block 57 PSL, Reeves County, 

Texas. All revenues from these properties (excluding any sale of such properties) 

which have been accrued by JOSEPH DAVID BURCHARD will now accrue to 

my wife, JUDY LYNN BURCHARD until her death or remarriage which at such 

time all will revert to my three children or their heirs.

The trial court granted a motion for summary judgment filed by Mark and Denise, holding that 

the above provision was not ambiguous; granting a fee simple absolute estate in the properties to 

Mark, Denise, and Curtis; and granting Judy a usufructuary interest in the property. The court 

further held that Judy was only entitled to receive revenues generated by the properties from 

sources that generated revenue during Joseph’s life for her life. We reverse and remand.

In five issues, Judy attacks the factual support for the trial court’s findings and challenges 

the finding that the language is unambiguous. We will first address the trial court’s finding that 

the language is unambiguous.

De Novo Review

Extrinsic evidence is admissible to determine a testator’s intent when there is an 

ambiguity in the language of the will. In re Estate of Cohorn, 622 S.W.2d 486, 488 (Tex. 

App.—Eastland 1981, writ ref’d n.r.e.). Where a will is unambiguous, extrinsic evidence is not 

admissible to show the intent of the testator. Id. Whether the language of a will is ambiguous is 

a question of law and is reviewed by this court de novo. In re Estate of Slaughter, 305 S.W.3d 

804, 808 (Tex. App.—Texarkana 2010, no pet.). In a de novo review, the trial court’s decision is 

accorded no deference. Id.

Will Construction

A court must construe a will to ascertain the intent of the maker. Eckels v. Davis, 111 

S.W.3d 687, 694 (Tex. App.—Fort Worth 2003, pet. denied). If a court can give a certain or 

definite meaning to words used in a will, it is unambiguous. Slaughter, 305 S.W.3d at 808. The 

terms of a will are to be given their plain, ordinary, and generally accepted meanings unless the 

instrument shows that such terms have been used in a technical or different sense. Id. at 809. 

All parts of the will must be harmonized, if possible. Id. Courts must not redraft wills to vary or 

add provisions to reach a presumed intent. Id. If the meaning of the instrument is uncertain or 

―reasonably susceptible to more than one meaning,‖ the instrument is ambiguous. Eckels, 111 

S.W.3d at 694.
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The Language is Ambiguous

The language at issue is ambiguous in that it is reasonably susceptible to more than one 

interpretation. This conclusion follows for two reasons. First, a sentence in the will purports to 

give Judy ―[a]ll revenues‖ that ―have been accrued‖ by the deceased from the property, 

excluding revenue from the sale of the property. The deceased was describing property that he 

currently owned; any revenue from the sale, which would have occurred after his death, would 

never have accrued to him. He, thus, excluded a category of revenue from his bequest to Judy 

that was already purportedly excluded by the phrase ―which have been accrued by JOSEPH 

DAVID BURCHARD.‖ This is an ambiguity, and it raises a question as to what Joseph was 

giving, or thought he was giving, to his wife.

Second, the definitions of the word ―accrue‖ and the phrase ―have been accrued‖ are not 

clear from the context in which they are used. The language could be read to give Judy only the 

revenue that Joseph received from the land during his life or it could be construed to give Judy 

all revenue from any use of any estate he owned in the land excluding revenue from the sale.

This is dependent entirely on the definition of ―accrue‖ that one uses. ―Accrue‖ can mean to 

―come into existence as an enforceable claim of right‖ or it can mean to ―accumulate 

periodically.‖ BLACK’S LAW DICTIONARY 23 (9th ed. 2009). Another common definition is ―to 

come about as a natural growth, increase, or advantage.‖ MERRIAM-WEBSTER’S COLLEGIATE 

DICTIONARY 9 (11th ed. 2004). The definition Joseph was using is not apparent. 

In addition, Appellees argue that ―have been accrued‖ is the present perfect verb form, 

which connotes ―action completed at a past time or before the immediate present.‖ If one uses 

the definition that Appellees advance—to come into existence as a legally enforceable claim—it 

is hard to see how Judy would get very much revenue from the property going forward. 

Suppose, for example, that, during his life, Joseph had contracted with a company periodically to 

harvest timber from the land and pay him an amount based on the weight of the timber harvested. 

If that company had harvested timber the day before Joseph died, using the definition of accrue 

advanced by Appellees, Judy would have a right to the revenue from the harvest because the 

legally enforceable right to the revenue had come into existence before Joseph’s death. 

However, if that company had harvested timber the day after Joseph’s death, a legally 

enforceable right to payment would not have come into existence or ―have been accrued‖ to him 
4

during his life. It is hard to see how Judy would have a right to that revenue based on the 

interpretation of ―have been accrued‖ advanced by Appellees. 

However, the language in the will additionally states that, whatever income she is to 

receive, she will receive that income for the rest of her life or until she remarries. Joseph was,

thus, anticipating that there would be ongoing income from this property that would ―accrue‖ to 

his wife, undercutting the idea that Judy was to receive only the income that had become a 

legally enforceable right to Joseph during his life. 

The idea that this language creates a right to revenue from all sources that generated 

revenue during the life of Joseph does not follow from the interpretation of the text advanced by 

Appellees. We cannot say, from the language of the text alone, what Joseph meant to give to his 

wife upon his death. We, therefore, sustain Appellant’s first and fifth issues.

Appellant’s Second and Third Issues

Judy also argues that there is a lack of summary judgment evidence to support certain 

findings in the judgment. In a traditional motion for summary judgment, a movant must show 

that there is no genuine issue of material fact and that he is entitled to judgment as a matter of 

law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When reviewing a

summary judgment, this court is to take as true all evidence favorable to the nonmovant and 

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. 

We hold that the trial court erred in holding that Mark, Denise, and Curtis had the right to 

sell or lease oil and gas and other minerals and receive the proceeds from such a sale or lease 

because there was no summary judgment evidence as to who owned the minerals. There are 

statements in the pleadings that an oil and gas lease had been executed on the property after the 

death of Joseph, but pleadings are not proper summary judgment evidence. Trinity Universal 

Ins. Co. v. Patterson, 570 S.W.2d 475, 478 (Tex. Civ. App.—Tyler 1978, no writ). There is no 

other evidence in the record as to the nature of the ownership of the mineral interest.

Judy has requested that this court take judicial notice that the oil and gas and other 

minerals are subject to the Relinquishment Act2and are, thus, owned by the State of Texas, with 

the surface owner acting as the leasing agent for the State. Although judicial notice can be taken 

 

2

TEX. NAT. RES. CODE ANN. §§ 52.171–.190 (West 2011).
5

at any stage of a proceeding,

3 we decline in this instance. The facts that we are asked to take 

judicial notice of are contained in a letter from someone who purportedly worked at the Texas 

General Land Office. While it may turn out that the minerals are indeed owned by the State of 

Texas, that is an issue that is best resolved by the factfinding function of the trial court. We 

sustain Appellant’s second and third issues.

Appellant’s Fourth Issue

In her fourth issue, Judy complains that the trial court granted more relief than the 

movants requested in their motion by finding that any oil and gas lease would be a sale of the 

property. See Sci. Spectrum v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997). We disagree. The 

trial court was asked to determine the ownership of the proceeds of an oil and gas lease in the 

original petition for declaratory judgment. Such a determination would necessarily include the 

nature of the ownership of the oil and gas interest.4 We overrule Appellant’s fourth issue.

 We reverse the summary judgment of the trial court and remand for further proceedings 

to determine the meaning of the language in question and the nature and ownership of the 

mineral interest in the property.

ERIC KALENAK

JUSTICE

January 5, 2012

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.

 

3

See TEX. R. EVID. 201(f).

4

Appellant also complains under this issue that the summary judgment grants relief to Curtis, who was not a movant for 

summary judgment. We note that Curtis is the original petitioner for declaratory relief.