NO.03-15-00492-CV 


IN THE THIRD COURT OF APPEALS 


FOR THE STATE OF TEXAS 


HEATHER MARTIN AND JOHN BROWN 


V. 


LEONORA BROWN 


On Appeal From the County Court at Law Number 1 ofBell County, Texas 

BRIEF OF THE APPELLEE 


ORAL ARGUMENT REQUESTED 

Mary Black Pearson 

TBA No. 02373590 

Pearson & Pearson 

2109 Bird Creek Terrace 

Temple, Texas 76502 

Telephone: (254) 778-0699 

Facsimile: (254) 778-0500 

marybp@pearson-lawfirm.com 

ATTORNEY FOR RESPONDENT AND APPELLEE 

ACCEPTED

03-15-00492-CV

8056321

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/2/2015 3:03:30 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/2/2015 3:03:30 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS 

I. SUMMARY OF 11ffi ARGU:MENT.......................................... 1 


II. ARGU:MENT...................................................................... 1 


III. CONCL USION .................................................................... 5 

TABLE OF AUTHORITIES 


1. Miller v. Wilson. 888 S.W. 2d 158, 160 (Tex. App. - El Paso 1994) ............. 3 


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


3. McGill v. Johnson, 799 S. W.2d 673. 674 (Tex. 1990) ............................... 3 


4. Riedel v. Kerlick.474 S. W.2d 508,511 (Tex. App.-Corpus Christi, 1971, writ 


ref'd no error) .................................................................................... '" ... 3 


5. Butfod v. Holliman, 10Texas Reports 560 ............................................. 3 


6. Guilliams v. Koonsman. 154 Tex. 401, 279 S. W.2d 579 (Tex. Sup. 1955) ........ 3 


7. Singleton v. Donalson, 117 S. W.3d 516,518 (Tex. App.-Beaumont 2003, pet. 


denied)...................................................................................... 3, 4 


OTHER MATERIALS 


Briefofthe Appellants.............. ..................................................... 1,2 


Last Will and Testament ofFranklin Arthur Brown ..................................... 2 


Record References 

The Record citing convention contained below is used throughout Appellees' 

Brief. 

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


ii 
I. SUMMARY OF THE ARGUMENT 

The Trial Court correctly interpreted the will to devise a life estate for the 

benefit of the surviving spouse, Leonora Brown. Further, the Court construed from 

the circumstances existing at the time of the execution of the 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 of the will and the circumstances of the 

testator and the property in question at the time of the execution of the will. 

Testator's homestead was never the property in question and certainly wasn't at the 

time of the execution of the 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 of possession 

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 of possession 

and use customary to a life estate to be restricted based on appellant's defmition or 

application of the word "occupy." See, Briefofthe Appellants, page 3, Summary 

ofthe Argument. 

1 

The language ofthe will specifically sets forth the reservation of a life estate 

for the benefit of the surviving spouse, Lenora Brown, with the remainder interest 

to the children. No specific definition is included in the body of the will to defme 

or give the testator's interpretation of the 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 by the 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 of the 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 executed and the fact 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 of the will. 

Further, the bequest of the life estate and the remainder interest IS 

conditioned upon the bequest by the first paragraph of II. in the will stating: 

"After payment ofmy said debts including funeral expenses, expenses 

of last 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 

Arthur Brown. 

2 

Therefore, all of the bequests including the bequest of this real property with the 

life estate and the remainder interest at dispute are subject to the need to liquidate 

the property for the payment of the expenses of administration and the surviving 

spouse was named as the Independent Executor to administer the estate. 

The nature and extent of the devise of a life estate must be construed by the 

language of the will. Interpretation of a will begins with the analysis of the 

contents of the document itself supplemented by evidence regarding the situation 

or circumstances regarding the execution ofthe will or the testator's life at the time 

of the 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), citing McGill v. Johnson. 799 S. W.2d 673. 674 (Tex. 1990). 

A life estate devised to taker A gives a right of possession 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 

of the 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 of the will. See, Singleton v. Donalson. 117 S. W. 3d 516,518 

(Tex. App.-Beaumont 2003, pet. denied). However, this specific language of the 

will expanded the extent of the life estate to allow the beneficiary the use of what 

is traditionally considered the corpus of an estate and not necessarily the life 

3 

tenant's property for use and enjoyment. See,id. The Court further states that in 

the interpretation of the testator's intent from the language of the will that the law 

favors the first taker and this premise was relied upon by the Court along with 

consideration of the circumstances at the 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 of Franklin Brown in the will that is before the 

court, the court must look at the overall content of the bequests and the document 

as a whole in addition to considering the facts as presented to the Court regarding 

the circumstances of the testator at the time of the execution of the 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 or homestead 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 of property in order to pay the expenses of the 

administration of the estate and clearly the beneficiary in other bequests in the will. 

Given the contents of the 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. 

4 

ill. CONCLUSION 

The decision of the 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 of the testator to provide for the use of the 

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 surrounding the time that the 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 at the time of the execution. 

Respectfully Submitted, 

PEARSON & PEARSON 

2109 Bird Creek Terrace 

Temple, Texas 76502-1083 

Telephone: (254) 778-0699 

Facsimile: (254) 778-0500 

marybp@pearson-Iawfirm.com 

5 

Certificate of Compliance 

I certify that this document brief was prepared with Microsoft Word 2010, and 

that, according to the program's word-count function, the sections covered by 

TRAP 9.4(i)(I) contain 1433 words. 

Certificate of Service 

I certify that a true copy ofthis Briefofthe Appellee was served in 

accordance with rule 9.5 ofthe Texas Rules ofAppellate Procedure on each party 

or that party's lead counsel as follows: 

Party: Heather Martin and John Brown 

Lead Attorney: Tad H. Cleaves 

Address of Service:250 1 E. Elms Road, Suite A, Killeen, Texas 76542 

Method ofService: by fax and electronic service 

Date of Service: December 2, 2015 

ary ck Pearson 

Attorney for Appellee 

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