Opinion issued February 21, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00041-CV

———————————

JASPER LEE MCDANIEL, JR., ANDREW MCDANIEL, AND ESTATE OF 

FRANCES ANN MCDANIEL, Appellants

V.

MANDY GALE MEADOR, Appellee

On Appeal from County Court at Law No. 3 & Probate Court

Brazoria County, Texas

Trial Court Case No. PR37802A

MEMORANDUM OPINION

This appeal arises from a declaratory judgment action concerning a dispute 

over the Last Will and Testament of the late Frances Ann McDaniel. In two issues, 

Appellants, Jasper Lee McDaniel, Jr., Andrew McDaniel, and the Estate of Frances 
2

Ann McDaniel, challenge the trial court’s declaratory judgment in which the court 

determined that Frances’s granddaughter, Mandy Gale Meador, is a beneficiary 

under the Will entitled to one-third of Frances’s estate. Because we conclude that 

the trial court did not err in this determination, we affirm the judgment of the trial 

court. 

Background

Frances Ann McDaniel signed her Last Will and Testament (“the Will”) on 

January 3, 2012. The Will’s opening provisions reflect that Frances’s husband had 

predeceased her and that she had three children: Jasper Lee McDaniel, Jr., James 

Arnold McDaniel, and Andrew Douglas McDaniel. 

Frances died testate on April 3, 2017. Frances’s sons, Jasper and Andrew, 

survived her. She was predeceased by her son, James, who died in May 2016. 

James’s daughter and sole heir, Mandy Gale Meador, also survived Frances. 

Following Frances’s death, Jasper and Andrew claimed that Mandy was not 

a beneficiary under the Will’s provisions. Mandy claimed that she was a 

beneficiary and filed a petition for declaratory judgment. 

In the petition, Mandy requested the trial court to interpret the Will’s 

provisions to determine who the beneficiaries were under the Will and to 

determine what share of the estate each beneficiary should receive. To support her 
3

claim that she was a beneficiary, Mandy relied on the opening paragraph of the 

Will and the second paragraph, as follows: 

. . . I have three children whose names are JASPER “LEE”

MCDANIEL, JR., JAMES ARNOLD MCDANIEL and ANDREW 

DOUGLAS MCDANIEL.

FIRST: [Providing that various expenses and taxes first be paid out of 

Frances’s estate.]

SECOND: I give all the rest, residue and remainder of my property 

and estate, both real and personal, of whatever kind and wherever 

located, that I own or to which I shall be in any manner entitled at the 

time of my death (collectively referred to as my “residuary estate”), 

except those personal items already designated as gifts, but still

remain in my home as follows:

(a) To those of my children (JASPER “LEE”

MCDANIEL, JR., AND ANDREW DOUGLAS 

MCDANIEL) who survive me and to the issue who

survive me of those of my children who shall not survive 

me, in equal shares per stirpes. 

(b) If no issue of mine survives me, I give my residuary 

estate to those who would take from me as if I were then 

to die-without a will, unmarried and the absolute owner 

of my residuary estate, and a resident of the State of 

Texas.

A trial was conducted to the bench on Mandy’s petition for declaratory 

relief. Both sides agreed that the Will’s provisions were unambiguous and that the 

construction of the Will was a question of law. 

Mandy asserted that whether she was a beneficiary under the Will centered 

on the meaning of “children” referenced in Paragraph 2(a). She acknowledged that 
4

the meaning of “children” in the phrase “[t]o those of my children (JASPER 

“LEE” MCDANIEL, JR., AND ANDREW DOUGLAS MCDANIEL) who survive 

me” was limited to Jasper and Andrew. But Mandy asserted that the second 

reference to children—in the phrase “to the issue who survive me of those of my 

children who shall not survive me”—was not modified or limited to exclude her 

deceased father, James. Thus, as James’s issue, Mandy was a beneficiary under 

the Will. 

Mandy further supported her position that the second reference to “children” 

included James by pointing out that James was identified in the opening paragraph 

of the Will as one of Frances’s children and that the common law and statutory 

definitions of “children” would include James as Frances’s child. Finally, Mandy 

asserted that “Paragraph 2B is further indication that [Frances] envisioned a 

situation where her children would not survive her and that she wanted the ability 

for her issue—her heirs, her grandchildren, [Mandy]—to inherit.” 

The attorney representing Appellants asserted that Frances wanted James to 

inherit nothing from her estate.1 The attorney stated that Frances intended to leave 

her estate only to Jasper and to Andrew as indicated by the modification to the first 

instance of the term “children” in Paragraph 2(a). She averred that, because it had 

already been modified, it was not necessary to modify the term “children” the 

 

1 The attorney stated that she had drafted the Will. The Will named Jasper as the 

independent executor of the Will. 
5

second time it appeared in the paragraph. The attorney said that the second part of 

the paragraph—stating “to the issue who survive me of those of my children who 

shall not survive me”—referred only to the issue of Jasper and Andrew, not to the 

issue of James. The attorney indicated that the second part of the paragraph only 

was applicable if Jasper, Andrew, or both predeceased Frances. She argued that, 

because both Jasper and Andrew were alive at the time of Frances’s death, they 

inherited the whole estate, and the second part of Paragraph 2(a) was not triggered. 

Mandy disagreed. She averred that Appellants were incorrect in claiming 

that “the same language is used in the second portion of [Paragraph 2(a)] as the

first” because “the first term ‘children’ . . . is modified with parenthesis” while “the 

second term ‘children’ in that sentence is not modified with parenthesis.” Mandy 

asserted that, if Frances “wanted to limit inheritance to Jasper and Andrew alone, 

[the first part of the paragraph] would have . . . ended right there, ‘to those of my 

children who survive me,’ period.” Mandy continued, “[I]f [Frances] wanted to 

limit the issue of both Jasper—you know, the inheritance to the issue of both 

Jasper or Andrew, then she would have said ‘If either one of these predecease me, 

then I leave it to the survivor of them or to their heirs at law.’” Mandy pointed out 

that “[t]he Court is not asked to determine what the testator intended to write. The

Court is asked to interpret what is actually written or what the intent is based on 

what is actually written.”
6

The trial court agreed with Mandy’s interpretation of the Will. The court

signed a declaratory judgment determining that Jasper, Andrew, and Mandy were

beneficiaries under the Will and ordering that each is entitled to one-third of 

Frances’s estate. 

Construction of the Will

Raising two issues, Appellants challenge the trial court’s determination that 

Mandy is a beneficiary of the residuary estate under Paragraph 2(a) of the Will. 

A. Standard of Review

Absent ambiguity, the construction of a will is a matter of law. In re Heider, 

496 S.W.3d 118, 122 (Tex. App.—Dallas 2016, no pet.); see Hurley v. Moody 

Nat’l Bank of Galveston, 98 S.W.3d 307, 310 (Tex. App.—Houston [1st Dist.] 

2003, no pet.). Ambiguity does not arise merely because the parties disagree on 

the will’s interpretation or because of a simple lack of clarity. Estate of 

Morgenroth, No. 05-15-00777-CV, 2016 WL 4010053, at *3 (Tex. App.—Dallas 

July 25, 2016, no pet.) (mem. op.). “[A] will is ambiguous only when the 

application of established rules of construction leave its terms susceptible to more 

than one reasonable meaning.” Steger v. Muenster Drilling Co., Inc., 134 S.W.3d 

359, 373 (Tex. App.—Fort Worth 2003, pet. denied). Here, the parties agree, and 

so do we, that the Will is not ambiguous. Thus, the construction of the Will is a 
7

matter of law, which we review de novo. See Heider, 496 S.W.3d at 122; Lemus v. 

Aguilar, 491 S.W.3d 51, 56 (Tex. App.—San Antonio 2016, no pet.). 

B. Analysis 

In their first issue, Appellants contend that, because Jasper and Andrew 

survived Frances, the Will designates only them as the beneficiaries of the 

residuary estate. Appellants point to the language in Paragraph 2(a), which 

provides that the residuary estate is given “[t]o those of my children (JASPER 

“LEE” MCDANIEL, JR., AND ANDREW DOUGLAS MCDANIEL) who survive 

me and to the issue who survive me of those of my children who shall not survive 

me, in equal shares per stirpes.” They assert that, by concluding that Mandy is a 

beneficiary, the trial court improperly disregarded Frances’s intent by ignoring the 

language in the parenthetical identifying only Jasper and Andrew as beneficiaries

and by ignoring the omission of James’s name. 

Mandy counters that Appellants improperly disregard the second beneficiary 

clause of Paragraph 2(a), following the conjunction “and,” which gives the 

residuary estate “to the issue who survive me of those of my children who shall not 

survive me.” Mandy contends, and the trial court determined, that Mandy is a 

beneficiary under this second beneficiary clause. It is undisputed that Mandy is the 

daughter (the issue) and sole heir of James, Frances’s non-surviving child. 

However, Appellants argue that Mandy is not a beneficiary under the second 
8

beneficiary clause because the parenthetical in the first beneficiary clause, naming

only Jasper and Andrew as Frances’s “children,” also applies to limit the term 

“children” in the second beneficiary clause. 

As she did in the trial court, Mandy disagrees. She contends that the 

parenthetical expressly limiting the term “children” in the first beneficiary clause 

to Jasper and Andrew does not apply to the second beneficiary clause under which 

she is a beneficiary. She asserts that, because it is not expressly limited, the term 

“children” in the second beneficiary clause includes not only Jasper and Andrew 

but also her father, James. 

Our task is to determine whether the parenthetical modification to the term 

“children” in the first beneficiary clause, limiting the term to Jasper and Andrew,

applies to the term “children” in the second beneficiary clause. If it does, then 

Mandy is not a beneficiary under the Will. If it does not, then the trial court 

properly determined that Mandy was a beneficiary along with Jasper and Andrew. 

“The cardinal rule for construing a will is to ascertain the true intent of the 

[testatrix] as expressed in the will.” Morgenroth, 2016 WL 4010053, at *3. The 

“objective in construing a will is to discern and effectuate the testatrix’s intent as 

reflected in the instrument as a whole.” Hysaw v. Dawkins, 483 S.W.3d 1, 7 (Tex. 

2016). We ascertain the testatrix’s intent from the language within the four corners 

of the will. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000).
9

Courts “determine intent by construing the instrument holistically and by 

harmonizing any apparent conflicts or inconsistencies in the language.” Hysaw, 

483 S.W.3d at 4; see In re Estate of Florence, 307 S.W.3d 887, 893 (Tex. App.—

Fort Worth 2010, no pet.) (“If possible, all parts of the will must be harmonized, 

and every sentence, clause, and word must be considered in ascertaining the 

testator’s intent.”). We must focus on the meaning of the words the testatrix

actually used rather than speculate about what she may have intended to write. See 

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

With these rules of construction in mind, we consider Paragraph 2(a) in the 

context of other relevant provisions of the Will: 

I have three children whose names are JASPER “LEE” MCDANIEL, 

JR., JAMES ARNOLD MCDANIEL and ANDREW DOUGLAS

MCDANIEL.

. . . .

SECOND: I give all the rest, residue and remainder of my property 

and estate, both real and personal, of whatever kind and wherever 

located, that I own or to which I shall be in any manner entitled at the 

time of my death (collectively referred to as my “residuary estate”), 

except those personal items already designated as gifts, but still

remain in my home as follows:

(a) To those of my children (JASPER “LEE”

MCDANIEL, JR., AND ANDREW DOUGLAS 

MCDANIEL) who survive me and to the issue who 

survive me of those of my children who shall not survive 

me, in equal shares per stirpes. 
10

(b) If no issue of mine survives me, I give my residuary 

estate to those who would take from me as if I were then 

to die-without a will, unmarried and the absolute owner 

of my residuary estate, and a resident of the State of 

Texas.

When viewed holistically and harmonizing any apparent conflicts, we agree 

with Mandy that Frances did not intend to limit the term “children” to Jasper and 

Andrew in the second beneficiary clause. We presume that a testatrix places

nothing superfluous or meaningless in her will and that she intended every word to 

play a part in the disposition of her property. Lacis v. Lacis, 355 S.W.3d 727, 733 

(Tex. App.—Houston [1st Dist.] 2011, pet. dism’d w.o.j.). Frances defined who 

her children were in the opening provision of the Will, listing all three of her 

children: Jasper, James, and Andrew. See Trinity Universal Ins. Co. v. Cowan, 945 

S.W.2d 819, 823 (Tex. 1997) (“[W]hen terms are defined in a [contract], those 

definitions control.”). By way of the parenthetical, Frances, at most, expressed her 

intent that she did not want James to be a beneficiary should he survive her. 

However, that same limitation was not placed on the term “children” in the second 

beneficiary clause to indicate that Frances did not intend the term “children” to 

include James in accordance with the definition in the Will’s opening paragraph. 

The Will contains no other indication that Frances intended to disinherit her 

granddaughter, Mandy, if James predeceased Frances. 
11

We also note that terms are to be given their plain, ordinary, and generally 

accepted meanings unless the instrument itself shows them to have been used in a 

technical or different sense. Steger, 134 S.W.3d at 372. Even when given its 

ordinary meaning, the term “children” would also include James. And, under wellestablished rules of probate law, James would also be included as one of Frances’s 

children. See Busby v. Gray, 616 S.W.2d 284, 287 (Tex. App.—San Antonio, 

1981, writ ref’d n.r.e.) (recognizing that word “children” when used in a will 

encompasses descendants of the first degree). The only place in the Will 

indicating that the “children” was intended to have a meaning different than the 

meaning ascribed in the opening paragraph or under the common, ordinary 

definition is the first beneficiary clause. 

Further, defining the term “children” in the second beneficiary clause to 

exclude James from that definition, and as a result exclude Mandy from being a 

beneficiary, would give rise to a potential conflict with Paragraph 2(b), which 

provides, “If no issue of mine survives me, I give my residuary estate to those who 

would take from me as if I were then to die-without a will . . . .” (Emphasis 

added.) Paragraph 2(b) makes no exception for Frances’s issue descending 

through James. 

“[A]pparent inconsistencies or contradictions must be harmonized, to the 

extent possible, by construing the document as a whole.” Hysaw, 483 S.W.3d at 
12

13; see Lacis, 355 S.W.3d at 733. “[A] latter clause in a will must be deemed to 

affirm, not to contradict, an earlier clause in the same will.” In re Estate of 

Slaughter, 305 S.W.3d 804, 812 (Tex. App.—Texarkana 2010, no pet.) (citing 

Steger, 134 S.W.3d at 372). Thus, we read Paragraph 2(b) to affirm that Frances 

intended Mandy to be a beneficiary if she survived Frances. 

In their second issue, Appellants criticize the trial court for finding that 

“absent an express statement to disinherit her granddaughter, Mandy Gale Meador, 

it was [Frances’s] intent to include her in the bequest.” They assert that Texas law 

does not require “an express statement to remove [Mandy’s] inheritance rights.” 

Regardless of the propriety of this assertion, under the facts of this case, a clear 

statement of disinheritance would be necessary, given that Frances chose language 

in her Will indicating that she intended for her granddaughter to be a beneficiary.

After considering the language of Frances’s Will and applying the 

established rules of construction, we conclude that Mandy, along with Jasper and 

Andrew, were beneficiaries of Frances’s residuary estate. We hold that the trial 

court did not err in also reaching this conclusion. 

We overrule Appellants’ two issues. 
13

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Keyes, Higley, and Landau.