Karla Merrick v. Bonnie Helter, Individually and as Independent of the Last Will and Testament of J.C. Cole

ACCEPTED
03-14-00708-CV
3910511
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/27/2015 10:41:01 AM
JEFFREY D. KYLE
CLERK
CAUSE NO. 03-14-00708-CV

FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE THIRD AUSTIN, TEXAS
JUDICIAL DISTRICT 1/27/2015 10:41:01 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk

KARLA MERRICK,

Appellant

BONNIE HELTER, Individually and as Independent Executor of
the Last Will and Testament of J.C. Cole, Deceased
Appellee.
_________________________________________________________

APPELLANT KARLA MERRICK’S BRIEF IN CHIEF
_________________________________________________________

From the Probate Court #1, Travis County, Texas

PAUL M. BOHANNON
Bohannon Legal PLLC
8300 FM 1960 West, Ste. 450
Houston, Texas 77070
281.798.7466
281.254.7914 Fax
Paul@BohannonLegal.com
SBN 02563500

ORAL ARGUMENT REQUESTED

1
IDENTITIES OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s Final

Judgment in the underlying proceeding, together with the names and

addresses of all counsel in accordance with Texas Rule of Appellate

Procedure 38.1(a):

Appellant/Plaintiff

Karla Merrick

Counsel for Appellant/Plaintiff

Paul M. Bohannon
Bohannon Legal PLLC 8300
FM 1960 West, Ste. 450
Houston, TX 77070

Appellee/Defendants

Bonnie Helter, Individually and as Independent Executor of the Last
Will and Testament of J.C. Cole, Deceased

Counsel for Appellee/Defendant

Alex R. Tandy, Esq.
Scott Phillips
Law Office of Alex R. Tandy, PC.
777 Lonesome Dove Trail, Ste. A
Hurst, TX 76054-6018

2
TABLE OF CONTENTS

ORAL ARGUMENT REQUESTED ................................................... 1
IDENTITIES OF PARTIES AND COUNSEL ................................... 2
TABLE OF CONTENTS ...................................................................... 3
ABBREVIATIONS................................................................................ 5
STATEMENT REGARDING ORAL ARGUMENT ......................... 7
STATEMENT OF THE CASE ............................................................ 8
COMMON-SENSE STATEMENT OF ISSUES 9
ESSENTIAL FACTS........................................................................... 10
ARGUMENT AND AUTHORITIES ................................................ 12
A. THE RULE OF THE TESTATOR’S WILL IS NOT ABSOLUTE ............. 13
B. POINT OF ERROR: THE PUBLIC POLICY OF THE STATE OF TEXAS
ABHORS INDECENCY WITH A CHILD. THE TRIAL COURT, RULING AS A
MATTER OF LAW ON MOTION TO DISMISS, ERRED IN FINDING NO BASIS
TO APPLY THE PUBLIC POLICY EXCEPTION TO THE BROAD POLICY THAT A
BAD MAN MAY DEVISE OR BEQUEST ITS ESTATE AS IT SEE FITS. ............ 17
C. TEXAS STATUTORY POLICY ........................................................... 17
D. TEXAS REGULATORY POLICY ........................................................ 18
E. TEXAS NGOS ................................................................................ 19
F. VIOLENCE AND DECLARED INTENTION TO PUNISH ........................ 19
G. USING INHERITANCE TO SILENCE INDECENCY WITH A CHILD
CONTRAVENES THE PUBLIC POLICY OF NO CRIMINAL STATUTE OF
LIMITATIONS. ...................................................................................... 21
CONCLUSION .................................................................................... 21
PRAYER .............................................................................................. 22
SIGNATURE ....................................................................................... 24
INDEX OF AUTHORITIES .............................................................. 25
APPENDICES BOOKMARKS .......................................................... 27

APPENDIX 1 — PERRY V. ROGERS, 52 TEX. CIV. APP. 594, 597, 114 S.
W. 897, 899, TEX. APP. LEXIS 423. 8 (TEX. CIV. APP. 1908) (NO WRIT)
............................................................................................................ 28
APPENDIX 2 — TEX. CODE CRIM. PROC. ART. 12.01 ........................... 38
CERTIFICATE OF COMPLIANCE ................................................ 40

3
CERTIFICATE OF SERVICE .......................................................... 40

4
ABBREVIATIONS

Parties:

“Merrick” refers to Karla Merrick, who was the sole child and

sole natural bounty of the Deceased.

“Helter” refers to Bonnie Helter, Individually and as

Independent Executor of the Last Will and Testament of J.C. Cole. She

was the Deceased’s half-sister.

“Deceased” refers to Karla Merrick’s father, the testator in this

case.

Documents:

“Will” refers to the Deceased’s Last Will and Testament,

dated November 23, 2013, executed on his death bed. (CR: 5)

Record References:

Citations to the Clerk’s Record are in the form of .. CR [pg.

no.]

Citations to the Reporter’s Record are in the form of.. RR [pg.

no.]

Hyperlinks

Where a citation is followed by “Appendix,” that reference is

to a copy of the document in the Appendix and a blue-page hyperlink

5
from that reference may be used to the specific Appendix.

6
STATEMENT REGARDING ORAL ARGUMENT

This appeal arises from a clause in the Will precluding Karla

Merrick’s inheritance from any of her father’s estimated $15,000,000

estate (CR: 109). The issue is unique in Texas. Merrick asserts that the

Deceased’s incestuous indecency with her as a youngster, coupled with

his declared punishment of will preclusion for confronting him about the

repulsive events trigger the public policy exception to the general rule

that even bad people can do what they want with their estate. Merrick

respectfully requests oral argument to assist the Court in its

determination of the legal considerations that are the foundation of this

appeal.

7
STATEMENT OF THE CASE

Nature of the Case

This case is on appeal from the Probate Court #1 of Travis

County, Texas. Karla Merrick, the Deceased’s sole child, filed this will

contest to challenge her exclusion from the Deceased’s will.

Course of Proceedings

The issues now presented on appeal arrive from a partial

dismissal based on Helter’s Motion to Dismiss. (CR: 83) The remaining

issue was nonsuited (CR: 105), and the Trial Court entered an order

confirming the nonsuit. (CR: 107) The appealed issues were resolved as

matter of law determinations on the Partial Motion to Dismiss.

Trial Court:

Probate Court #1, Travis County. Hon. Dan F. Prashner

presided at the hearing.

Trial Court’s Disposition:

Without the benefit of evidence and nevertheless assuming

Merrick’s allegations to be true (RR: 13, L. 8-9), the Trial Court

dismissed the claims on Motion to Dismiss. (CR: 107) Simply stated,

the Trial Court was of the opinion that the law did not support the

theory. (RR: 13, L. 22-23) The Trial Court recognized that probate

cases “go back to the founding of the Republic ... and limits very
8
sharply those circumstances under which someone with sound mind

cannot dispose of their property. I don’t think this is one of those.” (RR:

14, L 11-15)

COMMON-SENSE STATEMENT OF ISSUES

While each of the following issues are embedded in a singular

issue, the analysis will break the argument into a three-step analysis

along these lines. The issue steps presented to this Honorable Court are:

Public Policy Issues

1. Is incestuous indecency with a child against the public

policy of the State of Texas?

2. Is it against the public policy of the State of Texas for a

parent to punish or coerce one’s child into silence regarding act of

incestuous indecency perpetrated on the child?

Effect on Will Preclusion

3. If a parent commits incestuous indecency against its child,

can the parent disinherit the child? And, does Texas public policy allow

a parent to use its last will and testament to punish or coerce a child who

has been abused into silence to protect the parent?

9
ESSENTIAL FACTS

The salient facts alleged in this case, assumed to be true on

Motion to Dismiss, are:

1. The Deceased engaged in repetitive showers with his

early-teen daughter, standing naked with erection before her — his

extended penis at her eye level each time. (CR: 29)

2. The Deceased approached his daughter while she was in

bed, supposedly asleep, and toyed with her breasts, as he began

moving his hands down further she feigned an awake. (CR: 29)

The Deceased repeatedly admired his daughter’s breasts and buttocks,

commenting to her how nice they were, poking and pinching her breasts

and buttocks. (CR: 29)

3. The Deceased repeatedly and brutally beat his wife, even

in front of his daughter. When his daughter tried to call the police, he

prevented the calls in a rage. (CR: 30)

4. In later years, around 2010, the daughter, Karla Merrick,

confronted her father about the sexual misdeeds. He first admitted

them, stating that he had been confused. His daughter was so pretty

and looked so much like her mother. Yet, shortly thereafter, the

Deceased denied these things happened, and told the daughter that it

was her fault these things happened. (CR: 30)
10
5. The Deceased discontinued communication with the

daughter, punishing her for the confrontation. During a tense meeting

with the Deceased, the daughter, and his grandchild, he threatened

her, stating that the confrontation had cost her $3,000,000. The

Deceased then removed her from his will. (CR: 30-31)

6. The Deceased drank heavily, admitting to his doctor as

much as one-half gallon every three days. (CR: 30)

Karla Merrick began deeply clawing her face, attempting to change her

appearance. (CR: 30)

11
ARGUMENT AND AUTHORITIES

Appellant Merrick respectfully submits that the Lower Court

erred in granting a Motion to Dismiss and submits the following.

The public policy of the State of Texas abhors indecency

with a child. It is against public policy to allow a parent to sexually

abuse its child, punish that child for confrontation, and then disinherit

the child as a part of the punishment. The Trial Court erred in failing to

apply the public policy exception to the broad policy that a testator may

devise or bequest its estate as it see fits, and erred in determining the

foregoing issues on Motion to Dismiss, as both are factually based

claims. The Texas Civil Practice and Remedies Code allows a cause of

action to be dismissed only if the Plaintiff’s claim is not based in law or

fact. Tex. R Civ. P. 91 a. I A cause of action has no basis in law if the

allegations, taken as true, together with inferences reasonably drawn

from them, do not entitle the claimant to the relief sought. Id.

“Generally, a ‘motion to dismiss’ does not address claims on

the merits. It is directed to procedural or avoidance issues.” Harris

Cnty. Hosp. Dist. v. Textac Partners I, 257 S. W.3d 303 (Tex. App.—

Houston [14th Dist.] 2008); (noting that involuntary dismissal of a

plaintiffs action is generally limited to situations such as those involving

a plea in abatement, special exceptions not cured by amendment,
12
mootness, lack of prosecution, or lack of jurisdiction). In Lane v. Baxter

Healthcare Corp. 905 S.W.2d 39 (Tex. App.—Houston [1st Dist] 1995)

the Court agreed that dismissal was not the “proper vehicle to resolve

this case because disputed factual issues [require] an evidentiary

hearing.”

A. The Rule Of The Testator’s Will Is Not Absolute

Appellee and the Trial Court stand by the proposition that a

testator has the absolute right to distribute its property as it sees fit. This

is not Texas law. While it is true in Texas that Courts must protect a

testator’s right to distribute its estate how it sees fit, this is not an

absolute rule. Texas courts disallow a testator from violating public

policy in its will:

The condition upon which such innocent persons should hold
under the will not operating to violate the law, nor in
contravention of good morals or public policy, the courts can
not do otherwise than enforce it.

Perry v. Rogers, 52 Tex. Civ. App. 594, 597, 114 S. W. 897, 899, Tex.

App. LEXIS 423. 8 (Tex. Civ. App. 1908) (no writ) [Appendix 1].

The public policy exception was reiterated in Marion v. Davis,

106 S.W.3d 860. 869 (Tex. App.—Dallas 2003. pet, denied.], in which it

was stated that

[E]very person has the right to dispose of his property by will
as he sees fit, regardless of how the property is distributed in

13
the will. Gunter v. Pogue, 672 S. W.2d840 (Tex. App.—
Corpus Christi 1984), writ refdn.r.e.); Perry v. Rogers, 52 Tex.
Civ. App. 594. 114 S. W 897 (1908. no writ). This right is
subject to limitation by law or public policy. Stewart v.
RepublicBank. Pall.. N.A.. 698 S. W2d 786 (Tex. App.—Fort
Worth 1985. writ ref’d n.r.e.).”

And in Stewart v. RepublicBank. Pall. N.A.. 698 S. W.2d 786

(Tex. App.—Fort Worth 1985. writ ref’d n.r.e.) it was stated that:

“[o]rdinarily, a testator has a legal right to devise his property
as hqe sees fit and to prescribe the terms upon which his
bounty should be enjoyed. State v. Rubion. 158 Tex. 43, 308
S. W2d 4 (1957). This right is subject to limitation by law or
public policy. See 96 C.J.S. Wills sec. 977 (1957); 61 Tex. Jur.
2d Wills sec. 249 (1964) and cases cited therein.”

This long-recognized limitation on testamentary control

parallels contractual law. In Westchester Fire Ins. Co. v. Admiral Ins.

Co., 152 S.W.3d 172 (Tex. App.—Fort Worth 2004, pet. den), the Fort

Worth Court of Civil Appeals stated:

Generally, the legislature determines public policy. FMProps.
Operating Co. v. City of Austin. 22 S. W. 3d 868 (Tex. 2000).
43 Tex. Sup. Ct. J. 835 (holding legislative power is the power
to make rules and determine public policy). Courts look to
state statutes and judicial decisions to determine public policy.
Stubbs v. Ortega. 977 S. W.2d 718 (Tex. App.—Fort Worth
1998). pet, denied). The supreme court has long held that
“contracts against public policy are void and will not be
carried into effect by courts of justice.” James v. Fulcrod. 5
Tex. 512 (1851).

The Court succinctly explained when a violation of public

policy occurs:

A contract is against public policy if it is illegal or injurious to
14
the public good. See 14 TEX. JUR. 3D Contracts § 143
(1997).

Id. As we consider the instant circumstances on Motion to

Dismiss, can it possibly be suggested that blinking an eye at repeated

indecency with one’s child is anything but injurious to public good?

Lest there be any doubt, the Westchester Fire case went on to

explain:

The Texas Supreme Court has applied the public policy
doctrine found in the Restatement of Contracts (Second). Id.
(citing Beck v. Beck. 814 S.W.2d 745 (Tex. 1991) at 748-49.
34 Tex. Sup. Ct. J. 603 (Tex. 1991). cert, denied. 498 U.S.
1048. 112 L. Ed. 2d 775. Ill S. Ct. 755 (1991): DeSantis v.
WackenhutCorp.. 793 S.W.2d670. 681-82. 33 Tex. Sup. Ct. J.
517 (Tex. 1990) (op. on reh’g)). Section 178 provides that “a
promise or term of an agreement is unenforceable on grounds
of public policy if legislation provides that it is unenforceable
or the interest in its enforcement is clearly outweighed in the
circumstances by a public policy against the enforcement of
such terms.” Id. at 824 (quoting RESTATEMENT (SECOND)
OF CONTRACTS § 178(1) (1981)).

Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172 (Tex.

App.—Fort Worth 2004.

The Court synthesized this into a set of four factors to be

considered:

1. The strength of that policy as manifested by legislation or

judicial decisions. We will consider this consideration below.

15
Suffice it to say that the legislative and judicial policies against

sexual misconduct are strident.

2. The likelihood that a refusal to enforce the term will further

that policy. Lawyers typically draft wills, and would certainly

counsel against will exclusion.

3. The seriousness of any misconduct involved and the extent

to which it was deliberate. In addition to the fact that the conduct was

illegal, the injury to the victim is real and severe. In this case, the

factual allegation taken as true in this motion is that Appellant

Merrick began deeply scratching her face, then cutting it, to change

her appearance. The psychological trauma is, for purpose of this

motion apparent.

4. The directness of the connection between that misconduct

and the term. While the analysis in Westchester Fire is contractual,

its application to the present controversy is simple: the sexually

offensive acts led Appellant Merrick to confront her father, who then

began punishing her and excluded her from his will.

Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172 (Tex.

App.—Fort Worth 2004).

16
B. POINT OF ERROR:

The public policy of the State of Texas abhors
indecency with a child. The Trial Court, ruling as a
matter of law on Motion to Dismiss, erred in finding
no basis to apply the public policy exception to the
broad policy that a bad man may devise or bequest
its estate as it see fits.

The Trial Court either determined that incestuous indecency

with a child does not violate public policy, or that this conduct was not

of sufficient gravity to warrant the public policy exception to

testamentary control (RR: 14, L.11-15). Either way, the Trial Court was

in error.

C. Texas Statutory Policy

Texas provides a bevy of statutes decrying sexual misconduct.

These statutes, by way of example, demonstrate the public policy of the

State of Texas:

Tex. Penal Code § 22.021 (Aggravated Sexual Assault)

Tex. Penal Code § 12.42 (Repeat and Habitual Offenders)

Tex. Code Crim. Proc. art. 42.12 (Community Supervision)

Tex. Penal Code § 43.25b (Sexual Performance by Child)

Tex. Penal Code § 22.011 (Assaultive Offenses)

Tex. Penal Code §21.11 (Indecency with a Child)

Tex. Health & Safety Code § 841.003 (Sexually Violent

17
Predator)

Tex. Penal Code §33.021 (Online Solicitation of Minor)

Tex. Lab. Code § 21.051 (Employer Discrimination)

Tex. Penal Code § 21.12 (Improper Relationship Student and

Educator)

Tex. Penal Code § 22.11 (Harassment in Correctional

Institutions)

Tex. Educ. Code § 51.976 (Training for Employees of Campus

for Minors on Warning signs of Sexual Abuse and Child Molestation)

If there is any doubt, consider Tex. Estates Code § 201.062,

which provides that a probate court may refuse to allow a parent who

has abused his child to inherit from that child. The statute is intended to

protect a child’s estate. It did not address the reverse situation, which is

presented in the case before this Court. In fact, this statute demonstrates

that indecency with a child is just as significant as sexual assault.

D. Texas Regulatory Policy

The regulatory pronouncements decrying sexual offensives in

Texas are so numerous that only a representative few will be cited.

22 TAC § 375.33 (Podiatric - patient misconduct)

22 TAC § 75.1 (Chiropractic - patient misconduct)

22 TAC § 681.41(3) (Board of Examiners for Professional
18
Counselors)

E. Texas NGOs

Even NGOs receiving funding from the State of Texas are

fighting various sexual misdeeds Example references include:

University of Texas School of Social Work, Institute on

Domestic Violence and Sexual Assault under contract with the Office of

the Attorney General, Office of the Attorney General, “The Texas

Response to Human Trafficking, Report to the 81st Legislature,” 79,80

https://www.texasattorneygeneral.gov/files/agency/human_trafficking_2

008.pdf

Texas Association Against Sexual Assault, at

http://taasa.org/about/public-policy/ (viewed January 5. 2015).

Texas Council on Family Violence, publishing the State Plan,

now the Texas Health & Human Services Commission’s Family

Violence Program, at http://www.tcfv.org/stateplan/ (viewed January 5.

2015)

F. Violence and Declared Intention to Punish

The allegations in this case, assumed for purpose of the

Motion to Dismiss to be true, are that the deceased perpetrated acts of

violence against his family, and particularly against Appellant Karla

19
Merrick, when she was a youth. While Defendants may argue there was

no outcry at the time, they seek to shuttle the violent family conditions

out of consideration.

Further, the allegations are clear that a confrontation did in

fact take place later in time, when Appellant Karla Merrick was an

adult. Although initially there was remorse from her father, quickly the

typical sexual abuse pattern ensued. He blamed what happened on the

victim, Appellant Karla Merrick. At a meeting with his daughter and his

granddaughter, the deceased advised both that her confrontation had

cost the Appellant Merrick her inheritance. This conduct is tantamount

to coercion for silence and punishment for confrontation.

Texas strongly favors reporting of sexual offenses. Tex. Penal

Code § 38.17 (Failure to Stop or Report Aggravated Sexual Assault on

Child). The reporting policy is a part of many Texas regulatory

structures.

“A person having cause to believe that a child’s physical or

mental health or welfare has been adversely affected by abuse or neglect

by any person shall immediately make a report[.] Tex. Fam. Code §

261.101(a). Professionals having reason to believe abuse occurred must

report. 25 Tex. Fam. Code 261.101(b). The duty applies notwithstanding

a privilege. 25 Tex. Fam. Code 261.101(c).
20
G. Using Inheritance to Silence Indecency with a Child
Contravenes the Public Policy of No Criminal Statute of
Limitations.
Texas does not view sexual misconduct lightly. The State

deals harshly with those who abuse children. Texas provides no statute

of limitations for indecency with a child. Tex. Code Crim. Proc. art.

12.01 [Appendix 2]. Should the Trial Court’s decision, made as a

matter of law without regard to facts, stand, then any incestuous, sexual

predator could use inheritance to silence its child about the testator’s

filthy and reprehensible conduct. We submit, respectfully yet urgently,

that such a holding would so violate Texas public policy that it could

vitiate the intent of the legislature’s no-statute of limitations provision.

And, as an ever-present, looming side note, it would indelibly mark the

forehead of any child sexually abused by its parent.

CONCLUSION

In summary, it is apparent that Texas statutory, regulatory and

NGO public policy loathes sexual misdeeds, including indecency with

one’s child. The practical question before this Honorable Court of Civil

Appeals is: Does the public policy that allows a bad person to bequeath

his estate as it sees fit trump the public policy against sexually abusing

your child and then punishing the child for that conduct? The answer,

Appellant Karla Merrick submits, is obvious.
21
The legislature has in fact spoken on both issues. The policy

that a bad man can write his own will is strong, but remains subject to

the exceptions of violation of law and public policy. The legislature’s

position on sexual misdeeds, on the other hand, is clear, unequivocal,

and unbending — without exception: sexual misdeeds will not be

tolerated.

The State Legislature made it clear that indecency with a child

is so heinous that there is no statute of limitations. To sustain the Trial

Court’s ruling could be used by incestuous sexual predators to silence

their own children into submission, thereby avoiding criminal

prosecution.

The issue, decided at the preliminary Motion to Dismiss stage,

was improvidently decided.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Petitioner Karla

Merrick respectfully prays that this Honorable Court:

A. Reverse the decision of the Trial Court;

B. Remand the case to the Trial Court for further proceedings

consistent with its opinion;

22
C. Hold that as a matter of law, it is the public policy of the

State of Texas that incestuous indecency with a child is

contrary to the public policy of the State of Texas;

D. Hold that as a matter of law, it is against the public policy

of the State of Texas for a parent to use its last will and

testament as a coercive tool to silence its child about acts of

indecency with the child.

23
E. Costs and such other and further relief as this Honorable

Court may deem just and proper.

SIGNATURE

PAUL M. BOHANNON

Bohannon Legal PLLC
8300 FM 1960 West
Ste. 450
Houston, Texas 77070
281.798.7466
281.254.7914 Fax
paul@BohannonLegal.com
SBN 02563500

24
INDEX OF AUTHORITIES

Cases
Harris Cnty. Hosp. Dist. v. Textac Partners I, 257 S. W.3d 303 (Tex. App.—Houston [14th
Dist.] 2008)....................................................................................................................... 12

Marion v. Davis, 106 S.W.3d 860. 869 (Tex. App.—Dallas 2003. pet, denied.] ................... 13

Perry v. Rogers, 52 Tex. Civ. App. 594, 597, 114 S. W. 897, 899, Tex. App. LEXIS 423. 8
(Tex. Civ. App. 1908) (no writ) ......................................................................................... 13

Stewart v. RepublicBank. Pall. N.A.. 698 S. W.2d 786 (Tex. App.—Fort Worth 1985. writ
ref’d n.r.e.)........................................................................................................................ 14

Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172 (Tex. App.—Fort Worth
2004, pet. Den ...................................................................................................... 14, 15

Statutes
25 Tex. Fam. Code 261.101(b) ............................................................................................ 20

25 Tex. Fam. Code 261.101(c). ........................................................................................... 20

Tex. Code Crim. Proc. art. 12.01.......................................................................................... 21

Tex. Code Crim. Proc. art. 42.12.......................................................................................... 17

Tex. Educ. Code § 51.976.................................................................................................... 18

Tex. Estates Code § 201.062 ............................................................................................... 18

Tex. Fam. Code § 261.101(a) .............................................................................................. 20

Tex. Health & Safety Code § 841.003 .................................................................................. 17

Tex. Lab. Code § 21.051 ...................................................................................................... 18

Tex. Penal Code § 12.42 ..................................................................................................... 17

Tex. Penal Code § 21.12 ..................................................................................................... 18

Tex. Penal Code § 22.011 ................................................................................................... 17

Tex. Penal Code § 22.021 ................................................................................................... 17

Tex. Penal Code § 38.17 ..................................................................................................... 20

Tex. Penal Code § 43.25b ................................................................................................... 17

Tex. Penal Code §21.11 ...................................................................................................... 17

Tex. Penal Code §33.021 .................................................................................................... 18
25
Rules
Tex. R Civ. P. 91 a. I ............................................................................................................ 12

Regulations
22 TAC § 375.33 .................................................................................................................. 18

22 TAC § 681.41(3) .............................................................................................................. 18

22 TAC § 75.1 ...................................................................................................................... 18

Web
Texas Association Against Sexual Assault, at ..................................................................... 19

Texas Council on Family Violence ....................................................................................... 19

University of Texas School of Social Work,.......................................................................... 19

26
APPENDICES BOOKMARKS

Appendix 1 — Perry v. Rogers, 52 Tex. Civ. App. 594, 597, 114 S. W.
897, 899, Tex. App. LEXIS 423. 8 (Tex. Civ. App. 1908) (no writ) .. 28

Appendix 2 — Tex. Code Crim. Proc. art. 12.01

…40OO

Return to Table of Contents …… 3

27
Appendix 1 — Perry v. Rogers, 52 Tex. Civ. App. 594, 597, 114 S.
W. 897, 899, Tex. App. LEXIS 423. 8 (Tex. Civ. App. 1908) (no writ)

Return to Table of Contents …… 3

28
Perry v. Rogers, 52 Tex. Civ. App. 594

Copy Citation

Court of Civil Appeals of Texas

December 10, 1908, Decided

No Number in Original
Reporter 52 Tex. Civ. App. 594 | 114 S.W. 897 | 1908 Tex. ADD. LEXIS
423

Alba B. Perry v. J. A. Rogers et al.

Prior History: Appeal from the District Court of Dallas County. Tried below before Chas.
Fred Tucker, Esq., Special Judge.

Disposition: Reformed and affirmed.

Core Terms

the will, first marriage, testator, devised, adjudged, marriage, costs, surviving wife, partition,
acres, forfeiture

Case Summary

Procedural Posture

29
Defendant, a testator's son from the testator's first marriage, sought review of the decision of the
District Court of Dallas County (Texas) that entered judgment in favor of plaintiff testator's
children in plaintiffs' action against the testator's son and defendants, testator's other children and
his surviving fourth wife, to try the title to and for a partition of certain real property devised by
the testator in his will.

Overview

The real property in dispute belonged to the community estate of the testator and his first wife
and, therefore, the testator did not have the right to dispose of the property without the consent of
the children that were born of that marriage. As a result, his will provided that, if those children
did not consent to his proposed distribution, his share of that community property was to pass to
his surviving wife for the benefit of their children. The son argued that the result of that clause
was to declare a forfeiture of his rights under the will. Although the court agreed that the testator's
will appeared to be somewhat unjust, the court affirmed the judgment, opining that a testator's
intention was to control as along as it did not violate the law or contravene its policy. The court
explained that the testator's intent was clear from the plain and unambiguous language of his will,
and that it had no authority to refuse to enforce his intention even though the results seemed
unreasonable.

Outcome

The court reformed the judgment with respect to the allocation of costs and, as so reformed,

affirmed the judgment.

30
Headnotes/Syllabus

Headnotes

Devise ~ Contest of Will ~
Forfeiture.
A will devised specific tracts of land to children of the testator by former marriage, out of his
community interest in such land, but provided that: "If at any time any should attempt or proceed
in changing or breaking my aforesaid will, then it is my wish and desire that the half interest that
I hold and possess in all my estate, both real and personal, be given and I hereby bequeath the
same to my present wife for the benefit of my sons, Oscar D. and Louis Perry, sons of my
present wife by me." Certain of the devisees elected not to take under the will and brought suit
in trespass to try title to recover their interest as heirs, joining as defendant with others, a minor
devisee, a child of the former marriage, who did not join in their action to break the will. Held:
(1) Whether or not the forfeiture incurred by bringing the action operated against the minor
devisee who did not participate in such attempt to break the will, depended on the intent of
the testator, which must control if not violating the law or contravening its policy.

(2) The apparent intention of the testator (his specific devises making a partition between the
devisees and the holders of the other community half interest in the land, valid only with their
consent) was to pass his entire interest to his present wife in case their refusal made such
attempted devise and partition ineffective.
(3) The intention of the will was plain and must be enforced, though it operated to forfeit, by
the election of other devisees, the interest of the minor who was innocent of any act

constituting a forfeiture.
(4) In the absence of a statement of facts showing all the circumstances surrounding

the testator, his disposition of the property could not be held unreasonable or unjust.

(5) A will which seems unreasonable, unjust or absurd, cannot be disregarded if it violates no

principle of law or morality.

(6) The fact that the party sought to be affected by the election was a minor
was immaterial

31
where the election by which his devise was to be defeated was not exercised by himself but
by another.

Costs.

In an action of trespass to try title in which the defendants plead not guilty, putting plaintiffs
to proof of their right to recover, a judgment in plaintiff's favor should carry the costs of the
suit, in the absence of circumstances demanding their taxation otherwise.

Counsel: Newton P. Morrison, for appellant.

The provisions of section No. 13 of the will of Wm. M. Perry are in contravention of law, in
this, that the testator has no authority to create a condition by which the vested estate of
appellant can be destroyed and forfeited by the conduct of plaintiffs, in which appellant has
in nowise joined, and over which he has no control. Where a condition subsequent is so
worded that by a strict and literal construction it might apply to several parties, only a part
of whom violated the condition, a reasonable construction will make it operate only against
the particular ones actually violating the condition, that being the reasonable intention of the
testator. The power of election for a minor rests alone in the court, or some officer acting for
the court, and it is not in the power of the testator, by will, to transfer that power and place it
in a party adversely interested with the appellant. Chew's appeal, 45 Pa. St., 228; Friend's
case, 68 L. R. A., 447; King v. Grant, 55 Conn., 166; Rockwell v. Swift, 59 Conn., 289;
Bryan v.

Thompson, 59 Hun, 545; In re Vandervort, 62 Hun, 612; 2 Williams on Exs., note (n) (35).

Harry P. Lawther, for Mrs. Jennie Perry, appellee.

In this State, both by the statutes of conveyances and of wills, there is absolute freedom of
alienation of lands, or of any interest therein. Rev. Stats., arts. 624, 626, 627, 632, 633, 637,
5334.

A condition subsequent which is neither illegal, impossible of performance, immoral nor
impolitic has always been upheld. 30 Am. & Eng. Ency. of Law (2d ed.), pp. 799-801; Note
to Re Friend, 68 L. R. A., 449; Harrison v. Foote. 30 S.W. 839.

32
In the construction of wills the intent of the testator is the polar star, and such intention is to
be gathered from the writing, if plain and intelligible. 30 Am. & Eng. Ency. of Law (2d
ed.), p. 661; Philleo v. Holliday, 24 Tex. 38; Lenz v. Sens, 66 S.W. 11.

W. W. Hillebrant, for James A. Rogers and others, appellees.

Judges: WILLSON, Chief Justice.

Opinion by: WILLSON Opinion

[595] WILLSON, Chief Justice.—There is no statement of facts in the record. From
allegations in the pleadings it appears that W. M. Perry died testate in Dallas County, March
1, 1906, leaving surviving him his fourth wife and children by her and the wives of his first
and third marriages. By his will (duly probated, it was averred, and as an exhibit made part
of the answer of certain of the defendants) he devised to his surviving wife, M. E. Perry,
twenty-five acres of land; to appellant, Alba B. Perry and Mamie A. Smith, children of his
third marriage, ten acres each; to Agnes A. Rodgers, Julia. A. Brown, Sarah A. Smith, Mary
E. Prescott, James E. Perry and Joel E. Perry, children of the first marriage, nine acres each;
and to Wm. A. Perry, also a child of the first marriage, nine and sixty-seven one hundredths
acres. Each of the parcels of land so devised was described in the will by its metes and
bounds. To the children of the first marriage he also devised jointly a tract of six and one-
half acres. Following the provisions in the will covering the devises mentioned and one of
personal property to his surviving

wife for use as specified, was the following further provision: "13th. If at any time any
should attempt or should proceed in changing or breaking my aforesaid will, then it is my
wish and desire that the half interest that I hold and possess in all my estate, both real and
personal, be given and I hereby bequeath the same to my present wife

for the benefit of my sons, Oscar D. and Louis Perry, sons of my present wife by me." The
suit was by children of the first marriage against other children of that marriage and against
the surviving wife and children of the fourth and third marriage, to try the title to and for a
partition of the land devised. Robert Perry, [596] a child of the fourth marriage, born after
the death of his father, Oscar and Louis, children of the same marriage, and appellant, being
minors, a guardian ad litem was appointed to defend the suit as to them. The court charged
the jury as

33
matter of law that the land devised by W. M. Perry belonged to the community estate between
himself and the wife of his first marriage and submitted to the jury certain special issues, which,
and the findings on same, we think it not necessary to state here. By this judgment the court
determined that "by clause 13 of the will," quoted above, "the devises and bequests in said will
out of his half interest in said estate previously made to his wife, Mary E. Perry, and his children,
Alba B. Perry, Mamie A. Smith, Agnes A. Rodgers, Julia A. Brown, Sarah A.
(Annie) Smith, Martha E. Prescott, James E. Perry, Joel E. Perry, and W. A. Perry were by the
action of the plaintiffs herein in refusing to elect to take under said will and in bringing this
action, and by the act of said defendant Joel E. Perry in joining with said plaintiffs in such refusal,
forfeited; resulting in the children of the said Wm. M. Perry by his first wife, Sarah J. Perry,
taking no interest in the lands described herein except such share as they are entitled to as heirs of
their mother, Sarah J. Perry, and in the children by his third wife, Alba B. Perry, and Mamie A.
Smith taking no interest in the said lands; and in said defendant, Mary E. Perry, his surviving
wife, being vested with the said Wm. M. Perry's entire interest in said lands, the same being
107-192 of the whole for the use of said two children, Oscar and Louis Perry, less a one-half
interest in the same, to which the said child Robert Perry is entitled as an after-born child, no
provision having been made for him in his father's will." As between children of the first marriage
and the widow and children of the fourth marriage a partition was ordered, giving to the children
of the first marriage the share they were entitled to as heirs of their mother, to the widow certain
interests purchased by her of children of the first marriage, and of the children of the fourth
marriage the testator's share, in accordance with the directions in his will. This appeal is
prosecuted by Alba B. Perry alone.

After stating the case:—It is insisted on behalf of appellant that title to the ten acres of land
devised to him having vested in him, and he not having offered or attempted to "change or break"
the will, the judgment rendered is erroneous, insofar as it declares a forfeiture of his rights under
the will and fails to adjudge to him in the partition ordered the interest represented by the devise to
him. Whether the contention should prevail or not depends upon whether the testator intended that
the forfeiture clause in the will should so operate or not. For HNlT this intention must be held to
control, when to give it effect will not violate the law or contravene its policy. Parker v. Parker. 10
Tex. 83: Vardeman v. Lawson. 17 Tex. 10: Campbell v. Shotwell. 51 Tex. 27. The land being
community property of the first marriage, and undivided, the testator could not by his will
partition it, and of course could not so dispose of the deceased wife's share as to bind her heirs. In
the clause in question of the will the testator recognized the fact that he owned only an [597]

interest in the property, and not the whole of it. Knowing this, he, of course, knew that without the

34
consent of the owners of the other part he could not dispose of the whole. It is evident, therefore,
we think, that his purpose was a double and alternative one—the children of the first marriage
consenting, to partition among them and the other devisees for whom he wished to provide, the
property of the first marriage; or, said children not consenting, to dispose of his undivided
interest to the benefit of his surviving wife and their children, and to the exclusion of the
children of the first and third marriages. If such was his intention it was a lawful one, and his
will should be so construed as to give it effect. That it was his intention that his surviving wife
and their children should take his interest in the property to the exclusion of every other person,
in the event the disposition made by him of the property should not be effective because not
acquiesced in by one entitled to object thereto, we think was made as clear as language could
evidence it. The will declared that in such an event: "It is my wish and desire that the half
interest that I hold and possess in all my estate, both real and personal, be given, and I hereby
bequeath the same, to my present wife for the benefit of my sons, Oscar D. and Louis Perry,
sons of my present wife by me." The intention being plain, that to give it effect will operate to
deprive devisees, innocent of any attack on his right to dispose of the property, of the benefit it
conferred upon them, furnishes no reason why his will should not be enforced as he intended it
should be. The condition upon which such innocent persons should hold under the will not
operating to violate the law, nor in contravention of good morals or public policy, the courts can
not do otherwise than enforce it. Within the bounds suggested, the law conferred upon the
testator full power freely to make any disposition he desired to make of his property. Having
kept within those bounds, whether he exercised the right he possessed wisely or unwisely, justly
or unjustly, is not for the courts to determine. It is true, as appellant argues it is, that to construe
the will as we have indicated it should be construed might operate to permit one of the devisees
to elect for all, and by his election to attack the will effect a forfeiture as against those willing to
accept under it. In a given case it also might be true, as counsel declares, that "such an effect
would be unreasonable, unjust and shocking to the conscience of any court." Whether it would
be or not, we think would depend upon all the circumstances surrounding the testator and which
might be regarded as having influenced his action. In the absence of a statement of facts showing
what those circumstances were in this case, in support of the judgment, were it necessary to do
so, we should assume they were of a character to so explain the testator's act as to relieve it of
such criticism. But we are of the opinion that if it affirmatively appeared from the record that the
will in the particular in question was unreasonable and unjust, the intention of the testator
nevertheless being plain, we would have no right to revise or remake the will. H/V2? "When,"
said a writer on the subject, "a testator has made known his purposes in respect to his property
by the use of plain and unambiguous
35
language, though his purposes [598] may seem unreasonable, unjust or absurd to others, his
will is its own expositor, and a law unto the court, where it violates no principles of law or
morality." 30 A. & E. Ency. Law (2d ed.), p. 663, and authorities there cited; 1 Underhill on
Wills, sec. 105.
It is further urged on behalf of appellant that a forfeiture of the devise to him could not be
accomplished, as determined by the judgment, because he was a minor. If the forfeiture urged
depended upon some act or failure to act on his part there might be force in the contention. But
it does not. It was accomplished as the result of the conduct of others, which by the terms of the
will was to have that effect. Therefore, the fact that he was a minor was of no importance.
Harrison v. Foote. 9 Tex. Civ. ADD. 576: 2 Underhill on Wills, pp. 672 to 675.

The plaintiffs in the court below, appellees here, by a number of cross-assignments of error urge
objections to the judgment. In the absence of a statement of facts the only one of these
assignments we can consider is one questioning the judgment on the ground that it adjudged that
all the costs, including a fee to the guardian ad litem, incurred in the suit "up to and including the
costs of this decree be taxed against the plaintiffs." Plaintiffs' suit was to try the title to the land
and for a partition. All the defendants, except the defendant Joel E. Perry, who in effect made
himself a plaintiff by adopting the plaintiffs' pleadings, among other answers, interposed pleas
of not guilty. Plaintiffs were adjudged to be the owners of a part of the land they sued for. The
statute provides that HN3"* "the successful party to a suit shall recover of his adversary all the
costs expended or incurred therein, except where it is or may be otherwise provided by law."
Sayles' Stats., art. 1425. It H/V4? further provides that in a suit of trespass to try title "where the
defendant claims the whole premises, and the plaintiff shows himself entitled to recover a part,
the plaintiff shall recover such part and costs." Sayles' Stats., art. 5270. But for good cause, "to
be stated on the record," the court may otherwise adjudge the costs. Sayles' Stats., art 1438. As
the effect of the pleas of not guilty was to require plaintiffs before recovering any part of the
land they sued for to prove their title thereto, why the costs should have been adjudged against
them instead of against the defendants is not apparent. If there was a "good cause" for so
adjudging the costs, it does not appear to have been "stated on the record." We think, therefore,
the judgment rendered in this particular is erroneous. Galveston Land and Improvement Co. v.
Perkins, 26 S.W. 256; City of Houston v. Stewart, 40 Tex. Civ. App. 499. It will be so reformed
as to adjudge all costs incurred in the trial court, except said fee to the guardian ad litem and
those incurred by the defendant Mary E. Perry in her cross-action against Joel Perry, to and
including the judgment rendered, in favor of the plaintiffs against the defendants. The costs
incurred by said Mary E. Perry in her said cross-action will be adjudged in her favor against said
Joel Perry. The fee in favor of the guardian
36
ad litem will be adjudged as it was in the trial court. As so reformed, the judgment will be

affirmed. Reformed and affirmed.

37
Appendix 2 — Tex. Code Crim. Proc. art. 12.01

38
Tex. Code Crim. Proc. art. 12.01
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > CODE OF CRIMINAL PROCEDURE > TITLE 1. CODE
OF CRIMINAL PROCEDURE OF 1965 > LIMITATION AND VENUE > CHAPTER
12. LIMITATION

Art. 12.01. Felonies _______________________________________________________
Except as provided in Article 12.03, felony indictments may be presented
within these limits, and not afterward:
(1) no limitation:
(A) murder and manslaughter;
(B) sexual assault under Section 22.011(a)(2). Penal Code, or
aggravated sexual assault under Section 22.021(a)(1)(B). Penal
Code:
(C) sexual assault, if during the investigation of the offense
biological matter is collected and subjected to forensic DNA
testing and the testing results show that the matter does not
match the victim or any other person whose identity is readily
ascertained;
(D) continuous sexual abuse of young child or children under
Section 21.02. Penal Code:
(E) indecency with a child under Section 21.11. Penal Code:

PAUL BOHANNON

39
CERTIFICATE OF COMPLIANCE

COMES NOW the Appellant Karla Merrick and hereby

certifies that this document contains 2,368 words.

CERTIFICATE OF SERVICE

THIS WILL CERTIFY that undersigned counsel served the

foregoing document on Defendants Bonnie Helter Individually and as

Executor of the Estate of J.C. Cole, by delivery to opposing counsel of

record, Alex R. Tandy, Esq., by EServe this January 22, 2015.

PAUL M. BOHANNON

Bohannon Legal PLLC 8300 FM 1960
West, Ste. 450 Houston, Texas 77070
281.798.7466
281.254.7914 Fax
paul@BohannonLegal.com
SBN 02563500