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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/22/2015 9:48:11 PM JEFFREY D. KYLE Clerk
i

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

TABLE 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 1994) 2, 3

Turner v. Adams,

855 S.W.2d 735 (Tex. App. – El Paso 1993, no writ) 3

McGill v. Johnson,

799 S.W.2d 673 (Tex. 1990) 3
ii

Other Materials

Brief of the Appellee 1, 2, 3

Brief of the Appellants 1
1

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 ambiguity 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 interpretation 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” always 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 ambiguity 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 for the 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 the 

will contains any ambiguity. Brief of Appellee, 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. 

Extrinsic 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

citation 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 Paso 1993, no writ), citing

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

This 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 following 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 bearing 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 conditions that (1) she survives and (2) that she “occupy” the real 
4

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 estate, but that desire contradicts

Mr. Brown’s stated intention. This lower court erred in awarding an 

unconditional life estate to Appellee, and Appellants pray this Court reverses 

that decision.

Respectfully Submitted,

ROBERTS & ROBERTS, 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.com
5

Certificate of Compliance

I certify that this brief 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 Service

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

Address of service: 2109 Birdcreek Terrace, Temple, Texas 76502

Method of service: by fax and by electronic service

Date of service: December 22, 2015

/s/ Tad H. Cleaves_______________

Tad H. Cleaves

Attorney for Appellants