NO.03-15-00492-CV
IN THE THIRD COURT OF APPEALS FORTHE STATE OF TEXAS
HEATHERMARTINANDJOHNBROWN 

### V. LEONORA BROWN
OnAppeal Fromthe County Court atLaw Number 1 ofBell County, Texas
BRIEF OF THE APPELLEE

ORAL ARGUMENT REQUESTED

MaryBlackPearson TBA No. 02373590 Pearson & Pearson 2109 Bird CreekTerrace Temple, Texas 76502 Telephone: (254) 778-0699 Facsimile: (254) 778-0500 marybp@pearson-lawfirm.com ATTORNEY FORRESPONDENTANDAPPELLEE ACCEPTED 03-15-00492-CV 8056321 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/2/2015 3:03:30 PM JEFFREY D. KYLE

CLERKTABLE OF CONTENTS I. SUMMARY OF 11ffiARGU:MENT
.......................................... 1 II. ARGU:MENT
...................................................................... 1 III. CONCLUSION
.................................................................... 5TABLE OF AUTHORITIES 1. Miller v. Wilson. 888 S.W. 2d 158, 160 (Tex. App.

- ElPaso 1994)
............. 3 2. Turner v. Adams, 855S. W. 2d 735.738 (Tex. App.-ElPaso 1993, no writ)
.... 3 3. McGill 

### v. Johnson, 799 S. W.2d 673. 674 (Tex. 1990)
............................... 3 4. Riedelv. Kerlick.474 S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ ref'dno error)
....................................................................................'"
... 3 5. Butfod

### v. Holliman, 10TexasReports 560
............................................. 3 6. Guilliams 

### v. Koonsman. 154 Tex. 401, 279 S. W.2d 579(Tex. Sup. 1955)
........ 3 7. Singleton 

### v. Donalson, 117S. W.3d 516,518 (Tex. App.-Beaumont2003, pet. denied)
...................................................................................... 3, 4
OTHERMATERIALS BriefoftheAppellants
................................................................... 1,2 Last Will and Testament of FranklinArthurBrown
. .................................... 2

RecordReferences The Record citing convention containedbelow is usedthroughout Appellees' Brief.

2RR Reporter's Record Volume Two ofThree Volumes
.............. 1

iiI. SUMMARY OF THE ARGUMENT The Trial Court correctly interpreted the will to devise a life estate for the benefit ofthe surviving spouse, Leonora Brown. Further, the Court construed from the circumstances existing at the time ofthe execution ofthe will as set forth in the record that the intent of the testator by the use of the word "occupy" did not necessarily require her to physically reside at the property to have the customary benefit of a life estate through the "use and enjoyment" of the property. The record reflects that the parties did not have a residence on the property at the time the parties married or at the time the will was executed in 2002. The Court appropriately considered the construction ofthe will and the circumstances ofthe testator and the property in question at the time of the execution of the will. Testator's homestead was neverthe property inquestion and certainly wasn't at the time ofthe execution ofthe will as admitted by Appellant. The surviving spouse continues to occupy the property by paying the property taxes and leasing the structures built after the parties married on the property for her use and enjoyment. (2 RR 21-22,24) The surviving spouse should have a present right ofpossession and use of the property as a life estate is traditionally seen with the remainder interest vested in the Appellants.
II. ARGUMENT The issue before the Court turns on the Court's interpretation of "occupy" and how it affects the term ofthe life estate ofthe surviving spouse. The appellant does not dispute that a life estate is created but focuses on the rights ofpossession and use customary to a life estate to be restricted based on appellant's defmition or application ofthe word "occupy." See, Brief of the Appellants, page 3, Summary ofthe Argument.

1The language ofthe will specifically sets forth the reservation ofa life estate for the benefit ofthe surviving spouse, Lenora Brown, with the remainder interest to the children. No specific definition is included in the body ofthe will to defme or give the testator's interpretation ofthe word "occupy" as used in this section of the will. Clearly the language of the will manifests an intent by the testator, Franklin Brown, to specifically give his wife a life estate interested "for and during her natural life
..." and this is not disputed bythe parties. The will further qualifies the bequest with "
...or until such time as she fail to occupy the same." This qualifYing statement with its use ofthe word "occupy" is construed by appellant to mean that the surviving spouse must physically occupy the real property as her primary residence and ignores a broader sense ofthe word occupy including the use and enjoyment of the benefit of the real estate. This ignores the premise stressed in the Appellant's brief that the parties did not use this particular real property as a primary residence at the time the will was executedand thefact that it had no improvements on it at the time that they were married. See, Appellant's brief,page 1-2. The circumstances after the will was executed are not a factor for consideration for the Court in determining the intentions of the testator at the signing ofthe will. Further, the bequest of the life estate and the remainder interest IS conditioned upon the bequestbythe first paragraph ofII. in the will stating: "Afterpayment ofmy said debts including funeral expenses, expenses oflast illness, and expenses which may be incurred in connection with the administration ofmy estate, I do hereby give, devise and bequeath all property, both real and personal, which I may own at the time of my death as follows:
...." See, Last Will and Testament of Franklin ArthurBrown.

2Therefore, all ofthe bequests including the bequest ofthis real property with the life estate and the remainder interest at dispute are subject to the need to liquidate the property for the payment ofthe expenses ofadministration and the surviving spouse was named as the Independent Executorto administer the estate. The nature and extent ofthe devise ofa life estate must be construed by the language of the will. Interpretation of a will begins with the analysis of the contents ofthe document itself supplemented by evidence regarding the situation or circumstances regardingthe execution ofthe will orthe testator's life at the time ofthe execution. See, Miller v. Wilson, 888 S.W. 2d 158, 160 (Tex. App.

- El Paso 1994). Such evidence is focused on the testator's intent at the time of execution. See, id., citing Turner v. Adams. 855 S. W. 2d 735.738 (Tex. App.-EI Paso 1993, no writ), citingMcGill v. Johnson. 799 S. W.2d 673. 674 (Tex. 1990). A life estate devised to taker A gives a right ofpossession and enjoyment in the present while such rights may be followed by a vested interest in the property or the proceeds from the sale of the property in taker B with a future right of enjoyment or possession of the remaining property. See, Riedel v. Kerlick.474 

### S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ ref'd no error), citing Butfod v. Holliman, 10Texas Reports 560; and Guilliams v. Koonsman, 154 Tex. 401. 279 S. W.2d 579(Tex. Sup. 1955). The Donalson case presents a will construction issue which is demonstrative ofthe process the Court must use to determine the testator's intent regarding the nature and extent of the conveyed life estate. In Donalson, the extent of the conveyed life estate was expanded to include oil and gas royalties and bonuses by the specific terms ofthe will. See, Singleton v. Donalson. 117 S. W.3d 516,518 (Tex. App.-Beaumont 2003, pet. denied). However, this specific language ofthe will expanded the extent ofthe life estate to allow the beneficiary the use ofwhat is traditionally considered the corpus of an estate and not necessarily the life 3tenant's property for use and enjoyment. See,id. The Court further states that in the interpretation ofthe testator's intent from the language ofthe will that the law favors the first taker and this premise was relied upon by the Court along with consideration ofthe circumstances atthe time ofthe execution ofthe will. Id. The Donalson case further states that rental income from leases is traditionally part of the benefit for a life tenant. Id. In determining the intent ofFranklin Brown in the will that is before the court, the court must look at the overall content ofthe bequests and the document as a whole in addition to considering the facts as presented to the Court regarding the circumstances ofthe testator at the time ofthe execution ofthe will. The testator's use of the word occupy at the time of the execution could not be reasonably construed to require Leonora Brown physically reside at the property when by the Appellant's own statement of facts the property did not have a structure in use as a residence orhomestead for the testator. Further, the surviving spouse was not only given the right to "occupy" the property as a life tenant presumably for her use and enjoyment but she was named the Independent Executor with the right to dispose ofproperty in order to pay the expenses ofthe administration ofthe estate and clearly the beneficiary in other bequests in the will. Given the contents ofthe document as a whole and considering the circumstances at the time that the will was signed, the Court clearly interpreted the common meaning ofthe word "occupy" to include the life tenant's use and enjoyment ofthe property for its income potential and her use during her lifetime.

4ill. CONCLUSION The decision ofthe trial court should be affirmed. The will clearly gave Leonora Brown, the surviving spouse, a life estate which is not disputed. The trial court further determined the intentions ofthe testator to provide for the use ofthe property by the life tenant from the language in the will along with the circumstances presented in evidence by the Appellants regarding the condition of the real property surroundingthe time thatthe will was executed and the fact that it was never the primary residence for the testator and his wife. The trial court clearly followed the case law by first addressing the specifics in the will and then the circumstances atthe time ofthe execution. Respectfully Submitted, PEARSON & PEARSON 2109 Bird CreekTerrace Temple, Texas 76502-1083 Telephone: (254) 778-0699 Facsimile: (254) 778-0500 marybp@pearson-Iawfirm.com

5Certificate ofCompliance I certify thatthis documentbriefwas prepared with MicrosoftWord 2010, and that, accordingto theprogram's word-count function, the sections covered by TRAP 9.4(i)(I) contain 1433 words.

Certificate ofService I certifythat a true copy ofthis Briefofthe Appellee was served in accordance withrule 9.5 ofthe Texas Rules ofAppellate Procedure oneachparty
orthatparty's lead counsel as follows:
Party: HeatherMartin andJohn Brown Lead Attorney: TadH. Cleaves Address ofService:2501E. Elms Road, Suite A, Killeen, Texas 76542 Method ofService: by fax and electronic service Date ofService: December 2, 2015

ary ckPearson Attorney for Appellee
6