Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-20-00035-CV

Carol OCHSE and William W. Ochse, III, individually and as trustee of the William W. Ochse 

III Family 2008 Trust,

Appellants

v.

Cynthia Cadwallader OCHSE,

Appellee

From the 37th Judicial District Court, Bexar County, Texas

Trial Court No. 2020-CI-00062

Honorable Cathleen M. Stryker, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Rebeca C. Martinez, Justice

Patricia O. Alvarez, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: November 18, 2020

AFFIRMED

In this appeal, we must interpret the word “spouse” in a trust instrument. The grantor of 

the trust named her son’s “spouse” as a beneficiary. The parties dispute whether the term “spouse” 

identifies only the son’s first wife, his wife at the time the trust was executed, or whether it includes 

the son’s second wife, to whom the son is now married. Because we construct the language of the 

trust to unambiguously reflect the grantor’s intent to identify her son’s then-“spouse” as a 

beneficiary to benefit from the trust at the time the trust was executed, we affirm the trial court’s

summary judgment. 
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FACTUAL AND PROCEDURAL BACKGROUND

On May 6, 2008, Amanda Hurst Ochse created an irrevocable trust titled the “William W. 

Ochse III Family 2008 Trust.” At the time the Trust was created, Amanda was unmarried, and 

William W. Ochse III was her only living son. William was married to Cynthia Cadwallader 

Ochse, and together they had a daughter, Chloe Ochse Seiler and a son, William Ochse IV. 

The pertinent language of the Trust provides the following: 

1.1 Initial Trust Property. The Grantor, desiring to establish a trust for the benefit 

of her son, her son’s descendants, and her son’s spouse, has simultaneously with 

the execution of this trust agreement, delivered to the Trustee those assets described 

on Exhibit “A” attached hereto . . . .

2.1 Right of Withdrawal. Unless the donor of property to a trust established herein 

specifically notifies the Trustee to the contrary at the time of such contribution, any 

contribution to such trust (including the original contribution by the Grantor) shall 

be subject to a right of withdrawal by each member of the class composed of the 

primary beneficiary of such trust, the then living descendants of such primary 

beneficiary and the spouse of such primary beneficiary. . . .

3.1 . . . . A. Distributions of Income and Principal. The Trustee is authorized and 

directed to distribute to or for the benefit of the primary beneficiary, the primary 

beneficiary’s descendants and the primary beneficiary’s spouse, out of the income, 

and if income is insufficient, out of the principal of such trust from time to time

such sums as are reasonably needed for their health, including medical, dental, 

hospital, and nursing expenses, and expenses of invalidism, and such sums as are 

reasonably needed for their education, maintenance and support in their 

accustomed manner of living. . . . 

B. Non-General Inter Vivos Power of Appointment. The primary beneficiary shall 

have the power, at any time and from time to time (by specific reference to this 

power in an instrument in writing executed by him), to appoint all or a part of the 

corpus of the trust to or for the benefit of any one or more of the class composed of 

the Grantor’s descendants (other than the primary beneficiary himself) and the 

primary beneficiary’s spouse, in such proportions and subject to such terms, trusts 

and conditions as the primary beneficiary may direct . . . .

C. Testamentary Power of Appointment. The primary beneficiary shall have the 

power exercisable alone, at any time and in all events (by specific reference to this 

power in his will), to appoint all or any part of the corpus of this trust to or for the 

benefit of any one or more of the class composed of the Grantor’s descendants 

(other than the primary beneficiary himself) and the primary beneficiary’s spouse, 
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in such proportions and subject to such terms, trusts and conditions as the primary 

beneficiary may direct in his will . . . . 

5.1 Trustee of Trust for William W. Ochse III and William W. Ochse III’s 

Descendants. The initial trustee of the trust administered under the provisions of 

Paragraph 3.1 hereof shall be William W. Ochse III. If he ceases or fails to serve 

as trustee, the Grantor appoints Cynthia Cadwallader Ochse and Jack C. Hebdon, 

Jr., successively and not jointly, as successor trustee. 

5.2 Trustee of Trusts for Descendants of William W. Ochse III. In connection with 

each of the trusts administered under the provisions of Paragraph 3.2 hereof, the 

initial trustee of each such trust shall be Cynthia Cadwallader Ochse and Jack C. 

Hebdon, Jr.; provided, however, that each of the Grantor’s descendants who is a 

beneficiary of each such trust and who has the legal capacity to act shall serve as 

sole trustee of his or her own trust upon attaining the age of thirty-five years. The 

beneficiary shall assume the duties of trustee upon giving written notification to the 

then serving trustee, who shall at that time resign. . . . 

5.3 Appointment of Trustees. . . . . Subject to such trustee’s powers described 

herein, if the situation ever arises where a trust is without a trustee, the appointment 

of a successor trustee shall be determined by the foregoing provisions of this article, 

and if the provisions of this article do not provide for a successor trustee, then 

Cynthia Cadwallader Ochse and Jack C. Hebdon, Jr., shall serve, successively and 

not jointly, as successor trustee. . . . 

Any provisions of law to the contrary notwithstanding, the Trustee shall have full 

power and authority to buy, sell, or lease any trust property, or to loan or borrow 

money at any time and in any amount from time to time for the benefit of the trust 

estate or estates, to or from any person, trust, estate, firm, or corporation, including 

any adult beneficiary of any trust estate, and including any trust or trust estates 

created by the Grantor during her lifetime, or created by the Grantor’s husband 

during his lifetime or by his Will, and including the testamentary estate of the 

Grantor’s husband . . . . 

The Trustee is authorized and empowered to continue to own, operate and/or invest 

in any closely-held business and/or corporation and/or partnership and/or joint 

venture owned by the Grantor or in which the Grantor may own an interest at the 

time of her death, and to do any and all things deemed necessary by the Trustee, 

including the right to become or remain a partner or shareholder in such business, 

corporation, partnership or joint venture, or to incorporate such business, 

partnership or joint venture, or put in additional capital, for such length of time as 

the Trustee shall deem advisable, and to close out and liquidate or sell such 

business, corporation, partnership or joint venture interest, or any subsidiary or 

other affiliate thereof, upon such terms as the Trustee shall deem best. The Grantor 

recognizes that the Grantor’s husband and the Grantor may own any such business, 

corporation, partnership, or joint venture as community property at the time of the 

Grantor’s death or that any other individual Trustee may own an interest in any 
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such business, corporation, partnership or joint venture at the time of the Grantor’s 

death, and therefore, each Trustee is authorized and empowered to deal with 

himself or herself, in his or her individual capacity, in connection with such 

business, corporation, partnership or joint venture to the same extent as if he or she 

were an unrelated shareholder, partner or joint venturer. 

(emphases added). 

In 2012, William and Cynthia Ochse divorced after a marriage of approximately thirty 

years. In 2015, William married Carol Ochse. In March 2018, William’s children brought suit 

against him, individually and as trustee of the Trust, seeking his removal as trustee due to 

allegations that he breached his fiduciary duties and obligations. The children also named Cynthia 

as an interested person in the case due to her status as a beneficiary of the Trust. In 2018, Cynthia

filed an original answer to the children’s petition and filed a crossclaim against William. Cynthia 

then sought a declaration that the terms “primary beneficiary’s spouse” and “son’s spouse” in the 

Trust solely referred to her because she was William’s spouse at the time the Trust was executed. 

Carol intervened and sought a declaration that the terms “primary beneficiary’s spouse” and “son’s 

spouse” applied to her from the date of her marriage to William in September 2015 to present. 

Carol and Cynthia filed competing motions for partial summary judgment for a judicial 

declaration regarding the meanings of the terms “spouse,” “son’s spouse,” and “primary 

beneficiary’s spouse.” Cynthia also argued that her interests in the Trust are her sole and separate 

property. The trial court granted Cynthia’s motion and denied Carol’s motion. In its order, the 

trial court found:

The terms “spouse,” “primary beneficiary’s spouse,” and “son’s spouse” referenced 

in the Trust Agreement Establishing the William W. Ochse III Family 2008 Trust 

are unambiguous and specifically mean Cynthia Cadwallader Ochse, to whom 

William W. Ochse, III, was married at the time the trust instrument was established 

and does not mean any subsequent spouse of William W. Ochse, III, including but 

not limited to Carol Dicker Ochse. 
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The claims involved in the declaratory actions were severed from the remaining claims,

and Carol and William appealed the trial court’s determination that Carol is not a beneficiary of 

the Trust. 

TRUST CONSTRUCTION

A. Standard of Review 

We review a declaratory judgment under the same standards as other judgments and 

decrees. TEX. CIV. PRAC. & REM. CODE ANN. § 37.010. When both parties move for summary 

judgment and the trial court grants one motion and not the other, we review both parties’ summary 

judgment evidence, determine all questions presented, and render the judgment that the trial court 

should have rendered. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 605 (Tex. 2002). 

A party moving for traditional summary judgment must show that no genuine issue of 

material fact exists and that the party is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. 

Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Here, both motions sought summary 

judgment based on a question of law. See Eckels v. Davis, 111 S.W.3d 687, 694 (Tex. App.—Fort 

Worth 2003, pet. denied) (explaining that the construction of a trust instrument is a question of 

law for the trial court); Hurley v. Moody Nat’l Bank, 98 S.W.3d 307, 310 (Tex. App.—Houston 

[1st Dist.] 2003, no pet.) (same). Our standard of review is de novo. See In re Ray Ellison 

Grandchildren Trust, 261 S.W.3d 111, 116 (Tex. App.—San Antonio 2008, pet. denied).

When a trial court’s order granting summary judgment does not specify the ground or 

grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories 

advanced are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). 
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B. Applicable Law 

The same rules of construction apply to both wills and trusts. See In re Ray Ellison 

Grandchildren Trust, 261 S.W.3d at 117. In interpreting a will or a trust, we ascertain the intent 

of the testator or grantor. See Eckels, 111 S.W.3d at 694; Hurley, 98 S.W.3d at 310. We do so 

from the language used within the four corners of the instrument. See Eckels, 111 S.W.3d at 694; 

see also Hysaw v. Dawkins, 483 S.W.3d 1, 7 (Tex. 2016) (applying four-corners rule to construe 

a will). We harmonize all provisions and construe the instrument to give effect to all provisions 

so that no provision is rendered meaningless. Eckels, 111 S.W.3d at 694. When, as here, the 

language is unambiguous and expresses the grantor’s intent, we need not construe the instrument 

because it speaks for itself. Id. Thus, we do not focus on what the grantor intended to write but 

the meaning of the words she actually used. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 

639 (Tex. 2000); see Hysaw, 483 S.W.3d at 7. That is, we must not redraft a trust instrument to 

vary or add provisions “under the guise of construction of the language” of the trust to reach a 

presumed intent. Lang, 35 S.W.3d at 639. 

C. Determining the Grantor’s Intent

Using the above rules of construction, we must determine Amanda’s intent, in 2008, when 

she executed the Trust for the benefit of her son’s “spouse.” At the time the Trust was executed, 

Amanda’s son was married to Cynthia and had been married to her for approximately thirty years. 

Both parties agree that, at the time the Trust was executed, the term “spouse” unambiguously 

referred to Cynthia. However, the parties offer conflicting constructions of the term; Carol and 

William Ochse interpret the term to mean Cynthia at the time the Trust was executed and to later 

mean Carol upon her marriage to William, while Cynthia interprets the term to refer solely to her. 

Carol and William argue that Amanda’s use of Cynthia’s name in the Trust and her failure 

to specifically name Cynthia when referring to her son’s “spouse” indicate the grantor’s intent for 
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the term “spouse” to be descriptive of a status rather than a particular individual. Carol and 

William point to sections 5.1, 5.2 and 5.3 of the Trust, in which Amanda specifically labels Cynthia

only as a successor trustee. We are not persuaded by this argument. The significance of using 

Cynthia’s name throughout the Trust demonstrates Amanda’s overarching intent to benefit 

Cynthia. See Parrish v. Mills, 106 S.W. 882, 886 (Tex. 1908) (looking to an entire instrument

when ascertaining the grantor’s intent); In re Ray Ellison Grandchildren Trust, 261 S.W.3d at 118. 

The Trust similarly refers to William by name when establishing him as the trustee, but then refers 

to him as Amanda’s “son” in Section 1.1 when establishing the beneficiaries of the Trust. 

Carol and William also point to instances in the Trust, such as Section 2.1, in which the 

term “class” is used to describe beneficiaries and to Sections 3.1(B) and (C), by which Amanda 

gave William an inter vivos power of appointment “at any time and from time to time” and a 

testamentary power of appointment giving him that right “at any time and in all events . . .” Carol 

and William argue Amanda intentionally used this language because she intended that changed 

circumstances could alter beneficiaries. They further argue that Cynthia lost her status as “spouse” 

upon her divorce from William in 2012 and that Carol gained that status when William married 

her in 2015. 

Cynthia responds that in the absence of an expression of contrary intent, a gift to a “spouse” 

of a married person must be construed to mean the spouse at the time of the execution of the 

instrument and not a future spouse. Thus, Cynthia contends that the terms “primary beneficiary’s 

spouse” and “son’s spouse” in the Trust solely referred to her because she was William’s spouse 

at the time the Trust was executed. We agree. Cf. Lang, 35 S.W.3d at 639 (“[A] court may always 

receive and consider evidence concerning the situation of the testator, the circumstances existing 

when the will was executed, and other material facts that will enable the court to place itself in the 

testator’s position at the time” (citing Stewart v. Selder, 473 S.W.2d 3, 7 (Tex. 1971))). Carol and 
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William’s interpretation would ask this Court to view “spouse” as a status or class gift. This 

interpretation is inconsistent with Texas precedent regarding the use of classes in trust instruments 

and wills and, further, fails to harmonize all provisions of the irrevocable Trust before us. See 

Eckels, 111 S.W.3d at 694 (stating that courts must construe a trust instrument to give effect to all 

provisions so that no provision is rendered meaningless). A class gift is defined as a gift of an 

aggregate sum to a body of persons uncertain in number at the time of the gift. See Wilkes v. 

Wilkes, 488 S.W.2d 398, 403 (Tex. 1972) (holding that a gift to “lineal descendants” was a gift to 

a class because the maker intended the group to be capable of future changes in number and was

intended for individuals she did not know and could not name, rather than a bequest to specific 

individuals). Here, it was possible to identify a specific “spouse” at the time the Trust was 

executed in 2008. Cf. id. (providing examples of class gifts, such as gifts to “children,” 

“grandchildren,” “brothers,” “sisters,” “nephews,” “nieces,” “cousins,” “issue,” “descendants,” or 

“family.”). In contrast, there is no evidence Amanda intended the term “spouse” to encompass a 

body of persons uncertain in number at the time of the gift. See id. 

Therefore, we hold that the grantor’s use of the term “spouse” referred to William’s spouse 

at the time the Trust was executed, and did not refer to a class of persons including future spouses. 

See In re Ray Ellison Grandchildren Trust, 261 S.W.3d at 117 (interpreting the term “descendants” 

in a trust to exclude individuals who later came to fit the description after execution of the trust). 

We disagree that the grantor’s use of the term “husband” in sections 6.3 and 6.4 of the Trust, when 

Amanda was not married, evidences her intent for the term “spouse” to likewise be a status that 

could later be filled by other persons. Unlike a potential “husband,” the term “spouse” could 

identify only one specific individual at the time the Trust was executed. We decline to redraft the 

Trust to reach a presumed intent to benefit a potential replacement “spouse.” See Lang, 35 S.W.3d 

at 639 (stating that courts must not redraft a trust instrument to vary or add provisions to reach a 
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presumed intent); Frost Nat’l Bank v. Newton, 554 S.W.2d 149, 153 (Tex. 1977) (“No speculation 

or conjecture regarding the intent of the testatrix is permissible where, as here, the will is 

unambiguous, and we must construe the will based on the express language used therein.”).

CONCLUSION

Applying the four-corners rule, we hold the trust grantor Amanda’s unambiguous intent 

was to benefit her son’s then-spouse Cynthia at the time the Trust was executed, not to include any 

subsequent spouse.

1

 Because the trial court did not err in so concluding, we affirm the judgment 

of the trial court.

Rebeca C. Martinez, Justice

1 Despite our interpretation of the Trust in Cynthia’s favor, we disagree with her argument that because the Trust is 

irrevocable, her rights as a beneficiary vested upon the Trust’s effective date in 2008. The principle of irrevocability 

is inapposite. An irrevocable trust simply means a trust whose terms cannot be changed by the settlor once the property 

is conveyed to the trust. See Lee v. Rogers Agency, 517 S.W.3d 137, 149 (Tex. App.—Texarkana 2016, pet. denied).