ACCEPTED
03-15-00492-CV
8353035
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/22/2015 9:48:11 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00492-CV FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
12/22/2015 9:48:11 PM
IN THE THIRD COURT OF APPEALS JEFFREY D. KYLE
Clerk
FOR THE STATE OF TEXAS
HEATHER MARTIN AND JOHN BROWN
V.
LEONORA BROWN
On Appeal From the County Court at Law Number 1 of Bell County, Texas
REPLY BRIEF OF THE APPELLANTS
ORAL ARGUMENT REQUESTED
Tad H. Cleaves
TBA No. 24062667
Roberts & Roberts, LLP
2501 E. Elms Road, Suite A
Killeen, Texas 76542
Telephone: (254) 526-7541
Facsimile: (254) 526-5656
tcleaves@robertslegalfirm.com
ATTORNEY FOR PETIONERS AND APPELANTS
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TABLE OF CONTENTS
I. ARGUMENT 1
A. The use of the word “occupy” in Mr. Brown’s will did not create
ambiguity. 1
B. Extrinsic evidence should not be considered to determine
Mr. Brown’s intent. 2
C. Appellee’s position as Independent Executor is irrelevant. 3
II. CONCLUSION 3
TABLE OF AUTHORITIES
Texas State Cases
San Antonio Area Foundation v. Lang,
35 S.W.3d 636 (Tex. 2000) 2, 3
Miller v. Wilson,
888 S.W.2d 158 (Tex. App. – El Paso 1994) 2, 3
Turner v. Adams,
855 S.W.2d 735 (Tex. App. – El Paso 1993, no writ) 3
McGill v. Johnson,
799 S.W.2d 673 (Tex. 1990) 3
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Other Materials
Brief of the Appellee 1, 2, 3
Brief of the Appellants 1
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I. ARGUMENT
A. The use of the word “occupy” in Mr. Brown’s will did not create
ambiguity.
Appellee attempts to create the perception of an ambiguity of
language where one simply does not exist. “Occupy” is not an ambiguous
word. Appellee incorrectly argues in her Brief of the Appellee that because
“no specific definition is included in the body of the will to define or give
the testator’s interpretation of the word ‘occupy’” that an ambiguity is
created within the Will. Brief of Appellee, 2. When used in a real estate
context, “occupy” is not an ambiguous term. As discussed on pages 6 and 7
of the Brief of the Appellants, “occupy” and “occupancy” always includes
physical residence or possession. Brief of the Appellants, 6-7. Appellee
wants this Court to accept on faith a “broader sense of the word occupy”
Brief of Appellee, 2. Appellee fails to give a single example of or citation to
this broader sense of “occupation” to support a notion that mere ownership
or simple use is enough to “occupy” real property and satisfy this condition
of the will.
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B. Extrinsic evidence should not be considered to determine Mr.
Brown’s intent.
Where there is no ambiguity in a will, there is no need to use extrinsic
evidence to determine the testator’s intent. The Supreme Court of Texas held
that “Determining a testatrix’s intent from the four corners of a will requires
a careful examination of the words used. If the will is unambiguous, a
court should not go beyond specific terms in search of the testatrix’s
intent. San Antonio Area Foundation v. Lang, 35 S.W.3d 636, 640 (Tex.
2000) (emphasis added). In her brief, Appellee relies on an earlier lower
court decision for the proposition that the interpretation of a will should be
supplemented by evidence regarding the situation and circumstances of the
testator’s life at the time of the will’s execution – regardless of whether the
will contains any ambiguity. Brief of Appellee, 3, citing Miller v. Wilson,
888 S.W.2d 158 (Tex.App. – El Paso 1994). Miller does not stand for this
proposition. The Miller decision involves a testator who devised to his
second wife property that was owned in part by testator’s first wife.
Extrinsic evidence was important in the Miller case to determine how much
property was actually owned by testator at the time of his death – not to
determine testator’s intent. The actual text of the Miller decision at the
citation reported by Appellee reads as follows:
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The threshold issue in interpreting a will is a determination of
the intent of the testator. Id. at 160, citing Turner v. Adams, 855
S.W.2d 735, 738 (Tex.App. – El Paso 1993, no writ), citing
McGill v. Johnson, 799 S.W.2d 673, 674 (Tex.1990).
This section does not indicate a need for a court to look to extrinsic evidence
to determine a testator’s intent in all situations, and it fails to distinguish the
later Lang decision. The language of the will in the instant case is
unambiguous, and following the rule from Lang, looking to extrinsic
evidence for its interpretation was improper.
C. Appellee’s position as Independent Executor is irrelevant.
Appellee also seems to argue that Appellee’s position as Independent
Executor of the will has some bearing on whether the devise at issue in this
appeal is subject to the condition of occupancy. Brief of Appellee, 4.
Appellee’s service as Independent Executor is unrelated to the language of
the devise at issue herein and is irrelevant to this analysis.
II. CONCLUSION
The lower court’s ruling in this case should be reversed. The wording
of Last Will and Testament of Franklin Arthur Brown is exceedingly clear.
Mr. Brown grants a life estate in real property to his spouse subject to the
two conditions that (1) she survives and (2) that she “occupy” the real
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property. He thinks occupancy is so nice, he states the requirement twice. No
one need look beyond the words of the will to understand Mr. Brown’s
intention, and no one should. Appellee would prefer to not have an
occupancy requirement placed on this life estate, but that desire contradicts
Mr. Brown’s stated intention. This lower court erred in awarding an
unconditional life estate to Appellee, and Appellants pray this Court reverses
that decision.
Respectfully Submitted,
ROBERTS & ROBERTS, L.L.P.
By
Tad H. Cleaves
State Bar No. 24062667
2501 East Elms Road, Ste A
Killeen, Texas 76542
(254) 526-7541
Fax: (254) 526-5656
tcleaves@robertslegalfirm.com
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Certificate of Compliance
I certify that this brief was prepared with Microsoft Word 2012, and that,
according to that program’s word-count function, the sections covered by
TRAP 9.4(i)(1) contain 707 words.
/s/ Tad H. Cleaves _______________
Tad H. Cleaves
Attorney for Appellants
Certificate of Service
I certify that a true copy of this Brief of the Appellants was served in
accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each
party or that party’s lead counsel as follows:
Party: Leonora Brown
Lead attorney: Mary Black Pearson
Address of service: 2109 Birdcreek Terrace, Temple, Texas 76502
Method of service: by fax and by electronic service
Date of service: December 22, 2015
/s/ Tad H. Cleaves _______________
Tad H. Cleaves
Attorney for Appellants
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