### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00066- CV

Jacob Robert Allen and Kar ra Trichele Allen, Appellan ts

v. Rickie Lee A llen, App ellee

F ROM TH E CO UNTY COURT AT LAW O F B URNET COUNTY NO. P 9661 , H ONO RAB LE W.R. SAVAGE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n this appea l from a probate proce eding , J acob Robert Allen and Kar ra Triche le Allen challeng e the county court’s summary judgme nt in favor of Rickie L ee Allen, contending that the will at issue is not an unfulfilled, conditional will or, at the very least, that there is a g enuine issue of material fa ct b ec au se the will is ambig uous. We aff irm the county court’s judg ment.

BACK GR OUND

Br ian Dea

n Allen died in J uly 2 013. At the time of his death, he did not have any children and was marrie d to Kar ra Triche le Allen. J acob Robert Allen is one of Kar ra’ s sons from

a prior rela tionship. I n Aug ust 2013, J acob filed an application to probate the will at issue. The will 1

Be cause the par

ties have the same last name , we r efe r to them by their first name s. 1is handwr itten, titl ed “H o l o g raphic Wil l,” dated J une 3, 2012, and purportedly signe d by Br ian,

Kar ra, a nd one witness. The body of the will provides:

I n case of unex pecte d death, we, Bri an Dea n Allen and Kar

ra Trichele Allen l eave our estate & assets to be divided 50/50 betwee n our children, J acob Robert Allen and Hunter Cain Allen. I f one si b l i n g s h o u l d survive and the other does not, the full 100% of our estate & assets will g o to the surviving son. I f all four of us wer e to be killed or dece ase at the same time, we would like to desig nate Krista Chantay e Patton & Kevin L ee Allen as executives of our last will & testimony [si c] w/ 50/50 ag ree ance of distribution of assets among st family members, a s they

see f it.

Rickie L ee Allen, Br ian’s fathe r, opposed probating the will and filed an application for independe nt administration in August 2013, a sserting that his son died intestate.

Ri c k ie th e r e a f

te r f il e d a mo ti o n f

o r s u mm a r y judgme nt supported by aff idavit, seekin g for the county court to deny J acob’ s applica t i o n t o p ro b ate the wil l. I n his motion, Rickie arg ued that, even if the court wer e to conclude that the will was valid, it was a contin gent will that was conditioned upon the death of both his son and Kar ra and that, beca

use the condition did not occur , the will was not applicable and did not control the distribution of est ate assets. I n the aff idavit, R i ck i e averred that “[i] n ear ly J une of 2012,” Br ian and Kar ra “boar ded a plane for internatio n al
trave l bound for Jamaica a long w ith J acob Robe rt Allen and H unter Cain Allen.”

J acob filed a response to Rickie’s motion supported by an aff idavit by Kar

ra. J acob
arg ued that Br ian intended for the will to b e o p era ble in the event of his death, whether Kar ra survived him a

nd that, at a minimum , there was a question of fac t pr ecluding summary judgme nt. I n her aff idavit, Kar

ra aver red that it was Br ian’s intent “that in the event of either m y death or Br ian’s death, our estate and assets would pass to [he r s o n s ] .” She also aver red that her mother

2asked Br ian if he wanted the will back “[a]fter we returne d from our vacation” and that “he told her

to keep it to make sure that the boy s wer e alway s taken car e of in case something happene d to either of us.” After a hear ing, the county court g rante d Rickie’s motion for summary jud g ment. Kar ra there afte r filed a notice of appea ranc e, an opposition to Rickie’s application for independe nt administration, and a motion for r ehea ring from the summary

judgme nt ruling, w hich m otion was denied. This appe al followed.

ANALYSIS

Appellants prese nt one issue on appea l. They arg ue that the county court err ed when it g rante d summary judgme nt be cause the will wa s not a conditional will a nd, at the very least, the will was ambig uous, cre ating a g enuine issue of materia l fac t. They arg ue that the will is ambig uous 2 beca use it could b e interpre ted as a joint will or a joint conditional will and that the county court should have interpre ted the will as a joint will beca use Texas law favor s an interpre tation that avoids intestate succe ssion. See In r e Estate of Perez , 155 S.W .3d 599, 601 (Tex. App.—San Antonio 2004, n o pet.) (in context of ambig uous will, citing rule applied in Ferguson v. Ferguson , 45 S

. W

. 2 d 1 0 9 6, 1097 (Tex. 1931), that “the fac t that testatrix left a will implies that she did not intend to die intestate”)

.

For purposes of this ap peal, we use the terms “conditional will” and “conting ent will” 2 intercha ng eably

. See Bagnall v. B a g n a l l , 225 S.W .2d 401, 401–02 (Tex. 1949) (re fer ring to “conting ent or c onditional will”). 3We rev i ew a trial court’s decision to g rant summ ary judgme nt de novo. Travelers

Ins. Co. v. Joachim , 315 S.W .3d 860, 862 (Tex. 2010). To preva il on a summary judgme nt motion, the movant must demonstrate that there are no g enuine issues of materia l f act and that it is entitled
to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215–16 (Tex. 2003). When the trial court does not specify the g rounds for g ranting the motion, we must uphold the judgme nt if any of the g rounds asser ted in the motion and prese rved for a ppellate r eview a

re me ritorious. Knott , 128 S.W .3d at 216. The deter minatio n o f wh et h er a will is ambig uous is a question of law, which we revie w de novo. See Harris v. Hines , 137 S.W .3d 898, 903 (Tex. App.—Texarkana 2004, no pet.); Hurley v. Moody Nat’l Bank of Galveston , 98 S.W .3d 307, 310 (T ex . Ap p . — Houston [1st Dist.] 2003, no pet.). “I n construing a wi l l , t he court’s focus is on the [t estator]’s intent.” San Antonio Area Found. v . Lang , 35 S.W .3d 636, 639 (Tex. 2000). “This intent must be asce rtained from the lang uag e found within the four corne rs of the will,” see id ., and we “g ive eff ect to ever

y part of the instr u m ent if the lang uag e is rea sonably susceptible to a harmonious construction.” Hurley , 98 S.W .3d at 310. “The lang uag e of a will may clea rly show the testator’s intent—be it conting ent, conditional, or otherwise—or it may express the testator’s intent ambig uously .” In re Es t a t e of Fuselier , 346 S.W .3d 1, 3 (Tex. App.—Texarkana 2009, no pet.) (citing F er g u s o n , 45 S.W .2d at 1097). “I f the will is u nambig uous, a court should not g o bey ond specific terms in sear ch of the [t estator]’s intent.” See Lang , 35 S.W .3d at 639 (noting that court “has l ong held t hat when there is no dispute about the meaning of words used in a will, extrinsi c evide nce w ill not be rece ived to show that the [testator] i ntended something outside of the wor ds used”)

.

4“A ‘conting ent will’ is a wi l l that will take eff ect only upon the happening of

a specifie d conting ency .” See Perez , 155 S.W .3d at 601 (citing Bagnall v. Bagnall , 225 S.W .2d 401, 402 (Tex. 1949)). “The opera tion of a co n t inge nt will is defe ated by the nonoccur renc e of the conting ency .” Id

. “I f the conting ency mentioned is a condition prec edent to the validity of the will, such conting ency must have taken place i n o rd er t o entitle the will to probate ; if the possibili ty mentioned is only the inducement which prompted the making of the will, then such will is eff ective
upon the testator’s death even though such event does not take place .” Bagnall , 225 S.W .2d at 402. We also may consider “the ch ar ac t er of the bequests in deter mining whether the testator int ended

a contin gen t wi l l

. ” Fuselier , 346 S.W .3d at 3 (citing Ferguson , 45 S.W .2d at 1098). Guided by these princ iples, we turn to our r eview of the will’s lang uag e. The first sentenc e of the will re fe rences “we ” and “our” and provides for the dispositi o n of “our estate & assets” upon the happening of a specified contingenc y —“[i] n case of unexpected d ea t h .” The two rema ining sentenc es then set out alternative bequests of their entire
estate conditioned on the happening of other events: (i) the death of Br ian and Kar ra and if one of Kar ra’ s sons “should survive and the other does not,” and (ii) the death of Br ian and Kar ra and “[i] f all four of us wer e to be killed or dece ase at the same time.” Giving eff ect to the plain lang uag e of these sentences, they provide alternatives conditioned on the happening o f specified events, all of which include the death of both Br ian and Kar ra. See Perez , 155 S.W .3d at 601; Hurley , 98 S.W .3d
at 310 (noting that “cour t sh o u l d g ive eff

ect to ever

y part of the instrument if the lang uag e is

rea sonably

susceptible to a ha

rmonious construction”)

.

5We also note that the will does not addre ss what happens in the event that one spouse

dies and the other survives. Under appellants’ pref err ed interpre tation of the will, Kar ra presumably has forfeited her right t o her portion of t heir estate because Bria n died and she survived, but there is nothing in the will indicatin g t h at it was Br ian’s intent for her to do so. See Burke v. Jack son , 95 S.W .2d 1296, 1298–99 (Tex. 1936) (conc luding that “lang uag e and circ umstances clea rly show the happening of something to both [spous es] to be the condition upon which the dispositi on of the
proper ty there made should become operative” and noting that no indicati o n t h at wife intended during her husband’s lifetime for him to be dispossessed of “the proper ty which he and she had been

acc umulating toge ther for thirty y ear s” but “[o] nly in the event of his death as well as her own was this to happen” ). We decline to interpre t the will to rea d such a provision into it. See Lang , 35 S.W .3d at 639 (a scer

taining intent f

rom “lang uag e found w ithin the four cor ners of the will”). T o support their position that the will is not conditional or, at the ver y l ea s t , ambig uous, appellants cite Fuselier

. We, how ever , find the fac ts in that case distinguishable. See 346 S.W .3d at 3–4. The purported will in that case was a joint will of spouses, and the body of the will provided:

I n the event of our deaths, [husband] and [wife]; pare nts of [t heir child], leave all our rea l proper

ty ; bank acc ount s ; s tocks and persona l items to [t heir child]. [The God pare nts] will manag e our e state for [t he child] until she is 18 y ear s of ag e.

See id. The Texarkana Court of Appea ls found the will ambig uous and conclude d that the contestant of t he will had not proven a s a matter of law that the wil l was an unfulfilled, contingent will

. See
i d

. at 4

. I n contra st to the lang uag e of the will in Fuselier , the will here is limi t ed t o t h e

6circ umstance of “unexpected death” and expressly provides alternative bequests of the entire estate

depending on whether Kar ra’ s sons also survived as follows: (i) “we , [Brian and Kar ra], leave our

es t ate & assets to be divided 50/50 betwee n our children, [Karra ’s sons] ” if both sons surviv ed , (ii) “the full 100% of our estate & assets will g o to the surviving son” if only one son survived, and (iii) “distribution of assets among st family members” if neither son survived. This lang uag e makes clea r that the intent of B rian a nd Kar ra was t o provide alternative bequests of their e ntire estate in the event that they both died simult aneously and unexpectedly , depending on whether Kar ra’ s sons

wer e alive at the time.

I nterpre ting the plain lang uag e o f t h e will, we conclude that its terms are unambig uously conting ent on the “unexpected death” of both Br ian and Kar ra. See Lang , 35 S.W .3d at 639. Be cause the spec ified conting ency did not happen, the will did not be come ope rative a nd 3 is not subject to probate

. See Bagnall , 225 S.W .2d at 402. Thus , t h e county court did not err in
g ranting summary

judgme nt in favor of

Rickie on this basis. See Knott , 128 S.W .3d at 216.

CONCLUSION For these rea sons, we overr ule appella n ts’ issue and aff irm the county court’s judg ment.

Be cause we conclude that the will is not ambigu o u s , we d o n ot consider the parties’ 3 evidenc e and arg uments conce rning the circ umstances surrounding the cre ation of the will. See San Antonio Area Found. v. Lang , 35 S.W .3d 636, 639 (Tex. 2000). 7__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med Filed: Aug ust 18, 2015

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