i 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 of Bell County, Texas

REPLY BRIEF OF THE APPELLANTS

ORAL ARGUMENT REQUESTED

Tad H. Cleaves TBA No. 24062667 Roberts & Roberts, LLP 2501 E. Elms Road, Suite A Killeen, Texas 76542 Telephone: (254) 526

- 7541 Facsimile: (254) 526

- 5656 tcleaves@robertslegalfirm.com

ATTORNEY FOR PETIONERS AND APPELANTS ACCEPTED 03-15-00492-CV 8353035 THIRD COURT OF APPEALS

AUSTIN, TEXAS 12/22/2015 9:48:11 PM JEFFREY D. KYLE

CLERKi TABLE OF CONTENTS

I. ARGUMENT 1

A. The use of the word “occupy” in Mr. Brown’s will did not create ambiguity. 1

B. Extrinsic evidence should not be considered to determine Mr. Brown’s intent. 2

C. Appellee’s position as Independent Executor is irrelevant

. 3

II. CONCLUSION 3

T ABLE OF AUTHORITIES

Texas State Cases

San Antonio Area Foundation v. Lang
, 35 S.W.3d 636 (Tex. 2000) 2, 3

Miller v. Wilson
, 888 S.W.2d 158 (Tex. App.

– El Paso 19 9 4) 2, 3

Turner v. Adams
, 855 S.W. 2 d 735 (Tex. App.

– El Paso 1993 , no writ) 3

M cGill v. Johnson,

799 S.W.2d 673 (Tex. 19 90 ) 3ii Other Materials

Brief of the Appellee 1, 2, 3

Brief of the Appell ants 11 I. ARGUMENT

A. The use of the word “occupy” in Mr. Brown’s will did not create ambiguity.
Appellee attempts to create the perception of an ambiguit y of
language where one simply does not exist. “Occupy” is not an ambiguous

word. Appellee incorrectly argues in her Brief of the Appellee that because
“no specific definition is included in the body of the will to define or give
the testator’s interpretat ion of the word ‘occupy’” that an ambiguity is

created within the Will. Brief of Appellee , 2. When used in a real estate
context, “occupy” is not an ambiguous term. As discussed on pages 6 and 7

of the Brief of the Appellants , “occupy” and “occupancy” alwa ys includes
physical residence or possession. Brief of the Appellants , 6

- 7. Appellee
wants this Court to accept on faith a “broader sense of the word occupy”
Brief of Appellee , 2. Appellee fails to give a single example of or citation to

this broader sense of “occupation” to support a notion that mere ownership
or simple use is enough to “ occupy ” real property and satisfy this condition

of the will

.2 B. Extrinsic evidence should not be considered to determine Mr. Brown’s intent.

Where there is no amb iguity in a will, there is no need to use extrinsic

evidence to determine the testator’s intent. The Supreme Court of Texas held
that “Determining a testatrix’s intent from the four corners of a will requires

a careful examination of the words used . If the will is unambiguous, a

court should not go beyond specific terms in search of the testatrix’s

intent. San Antonio Area Foundation v. Lang , 35 S.W.3d 636, 640 (Tex.
2000) (emphasis added). In her brief, Appellee relies on an earlier lower

court decision fo r t he proposition that the interpretation of a will should be
supplemented by evidence regarding the situation and circumstances of the

testator’s life at the time of the will’s execution

– regardless of whether t he
will contains any ambiguity

. Brief of Ap pellee , 3, citing Miller v. Wilson
, 888 S.W.2d 158 (Tex.App.

– El Paso 1994). Miller does not stand for this
proposition. The Miller decision involves a testator who devised to his
second wife property that was owned in part by testator’s first wife.

Extri nsic evidence was important in the Miller case to determine how much
property was actually owned by testator at the time of his death

– not to

determine testator’s intent

. The actual text of the Miller decision at the

cit ation reported by Appellee reads as follows:3 The threshold issue in interpreting a will is a determination of

the intent of the testator. Id. at 160, citing Turner v. Adams , 855
S.W.2d 735, 738 (Tex.App.

– El Pas o 1993, no writ), citing

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

Th is section does not indicate a need for a court to look to extrinsic evidence

to determine a testator’s intent in all situations , and it fails to distinguish the

later Lang decision. The language of the will in the instant case is
unambiguous, and followin g the rule from Lang , looking to extrinsic
evidence for its interpretation was improper.
C. Appellee’s position as Independent Executor is irrelevant.
Appellee also seems to argue that Appellee’s position as Independent

Executor of the will has some bear ing on whether the devise at issue in this
appeal is subject to the condition of occupancy. Brief of Appellee , 4.
Appellee’s service as Independent Executor is unrelated to the language of
the devise at issue herein and is irrelevant to this analysis.

II. CONCLUSION
The lower court’s ruling in this case should be reversed. The wording

of Last Will and Testament of Franklin Arthur Brown is exceedingly clear

. Mr. Brown grants a life estate in real property to his spouse subject to the

two condition s that ( 1) she survive s and (2) that she “occupy” the real4 property. He thinks occupancy is so nice, he states the requirement twice. No
one need look beyond the words of the will to understand Mr. Brown’s

intention , and no one should

. Appellee would prefer to not have an
occupancy requirement placed on this life estat e, but that desire contradict s

Mr. Brown’s st ated intention. T his lower court erred in awarding an
unconditional life estate to Appellee, and Appellants pray this Court reverses

that decision.

Respec tfully Submitted,

R OBERTS & R OBERTS , L

. L

. P

.

By Tad H. Cleaves State Bar No. 24062667 2501 East Elms Road, Ste A Killeen, Texas 76542 (254) 526

- 7541 Fax: (254) 526

- 5656 tcleaves@robertslegalfirm.com5 Certificate of Compliance

I cert ify that this b rief was prepared with Microsoft Word 2012, and that,
according to that program’s word

- count function, the sections covered by

TRAP 9.4(i)(1) contain 707 words.

/s/ Tad H. Cleaves

_______________ Tad H. Cleaves Attorney for Appellants

Certificate of Serv ice I certify that a true copy of this Brief of the Appellants was served in
accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each
party or that party’s lead counsel as follows:

Party: Leonora Brown
Lead attorney: Mary Black Pearson

Ad dress of service: 2109 Birdcreek Terrace, Temple, Texas 76502
Method of service: by fax and by electronic service

Date of service: December 2 2, 2015

/s/ Tad H. Cleaves

_______________ Tad H. Cleaves Attorney for Appellants