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 MCDANIE L , AND ESTATE OF

FRANCES ANN MCDANIEL , Appella nt s

V. MANDY GALE MEADOR , Appell e e
On Appeal from Co unty C ourt at Law No . 3 & Probate C ourt

Brazoria County, Texas Trial Court Ca se No. PR37802A

MEMORANDUM OPINION This appeal arises from a declaratory judgment action concerning a dispute over the Last Will and Testament of the late F rances Ann McDaniel. In two issue s , Appellants, Jasper Lee McDaniel, Jr. , Andrew McDaniel, and the Estate of Frances2

Ann McDaniel , challenge the trial court’s declaratory judgment in which the court determined that Frances’s granddaughter, Mandy Gale Mead or, 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 a nd Testament (“the Will”) on January 3, 2012. The Will ’s opening provisions reflect that Frances ’s husband had predeceased her and that she ha d three children: Jasper Lee McDaniel, Jr. , James Arnold McDaniel, and Andrew Douglas McDaniel

. Frances died t estate 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 And rew 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 request ed the trial court to interpret the Will’s provisions to dete rmine who the beneficiaries were under the Will and to determine what share of the estate each beneficiary should receive. To support her3

claim that she was a beneficiary, Mandy relied on the opening paragraph of the Will and the second paragraph , as foll ows :

. . . I have three children whose names are JASPER “ LEE ” MCDANIEL, JR., JAMES ARNOLD MCDANI EL 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, residu e 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 per sonal 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 sur vive 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 wa s a beneficiary under the Will centered on the meaning of “children” referenced in Paragraph 2(a). She acknowledged that4

the meaning of “children” in the phrase “[t] o those of my children (JASPER “LEE” MCDANIEL, JR., AND ANDREW DOUGLAS MCDANIEL) who survi ve

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, Jame s. 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 Franc es’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 survi ve 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” t he

1 The attorney stated that sh e 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 o f 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 ‘ chi ldren ’

. . . 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] wou ld 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 eit her one of these predecease me, then I leave it to the survivor of them o r 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 writte n 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 w ere beneficiar ies under the Wil l and order ing t hat 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 o f 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.). A mbiguity 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, 37 3 (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 a7

matter of law, which we review de novo. See Heider , 496 S.W.3d at 122; Lemus v. Aguilar , 491 S.W.3d 51, 5 6 (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 i s a beneficiary, the trial court improperly disregarded Frances’s intent by ignoring the language in the parenthetica l identifying only Jasper and Andrew as beneficiaries
and by ignoring the omission of James’s name

. Mandy coun ters that Appellants improperly disregard the second beneficiary clause of Paragraph 2(a) , following the conjunction “and , ” which gives the residuary estate “t o the issue who survive me of those of my children who shall not survive me .” Mandy contends, an d the trial court determined, that Mandy i s 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 b eneficiary under the second8

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 t hat, 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.
O ur task is to determine whether the parenthetical modification to the term “children” in the fi rst 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 Man dy 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 disc ern 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. La ng , 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, 89 3 (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 testat rix
actua lly used rather than speculat e 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 whos e names are JASPER “ LEE ” MCDANIEL, JR., JAMES ARNOLD MCDANI EL 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 “ L EE ” 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 wo uld 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 n ot intend to limit the term “children” to Jasper and Andrew in the second beneficiary clause

. We presume that a testat rix place s nothing superfluous or meaningless in h er will and that s he intended every word to play a part in the disposition of h er prope rty. 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 Univ ersal Ins. Co. v. Cowan , 945 S.W.2d 819, 823 (Tex. 1997) (“[W]hen terms are defined in a [contract], those definitions control.”). B y way of the parenthetical, Frances , at most, expressed her
intent that she did not want James to be a beneficiary should h e 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 paragr aph. The Will contains no other indication that Frances intended to disinherit her granddaughter, Mandy, if James predeceased Frances.11

We also note that t erms 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 37 2

. Even w hen given its ordinary meaning, the term “children” would also include James. And, under well

established 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 benef iciary 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 po ssible, by construing the document as a whole.” Hysaw , 483 S.W.3d at12

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 8 04, 812 (Tex. App.

— Texarkana 2010, no pet.) (citing Steger , 134 S.W.3d at 372). Thus, w e 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 f or 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 ri ghts .” 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 indicat ing that she intended for her granddaughter to be a beneficiar y. 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 als o 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.