In T he
Court of Appeals
Seventh District of T exas at Amarillo
No. 07-17-00296-CV
GARRY JACK SULLIVAN, AS INDEPENDENT EXECUTOR OF
THE ESTATE OF JUANITA GIBSON, APPELLANT
V.
SHERRY LAYNE HATCHETT, APPELLEE
On Appeal from the 287th District Court
Bailey County, Texas
Trial Court No. 9650, Honorable Gordon Houston Green, Presiding
February 11, 2019
DISSENTING OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
For the reasons the court gives, I agree with the court’s disposition of appellant
Garry Jack Sullivan’s second issue contending that the claim asserted by appellees
Sherry Lane Hatchett, et al. was barred by limitations. However, I would overrule
Sullivan’s first issue and would affirm the trial court’s judgment. For that reason, I dissent
from the court’s judgment.
The will of Charles Henry Gibson that the trial court construed appears as a
formally-prepared will. It consists of nine typewritten pages, plus attestation and self-
proving language, and was signed before three witnesses. Some six pages of the nine
are occupied with provisions governing the trust created for the benefit of two
granddaughters of Charles and his wife Juanita Gibson. The will recites that the Gibsons’
son Jerry Gibson died the month before Charles signed the will. The will states Charles’s
intention to dispose of his separate property and his share only of his community estate
with Juanita. It named Juanita as independent executrix and their daughter Sherry as
alternate independent executrix. It named Sherry as trustee of the trust for her daughters.
The court has quoted the will’s dispositive provisions, and I will not repeat them here.
Addressing the parties’ motions for summary judgment, the trial court held that
Charles’s will gave to his wife a life estate in the assets of his estate, and gave the
remainder to be distributed fifty percent to their daughter Sherry, ten percent to First
Baptist Church, Lubbock, and forty percent in trust for the benefit of Christina Michelle
Hatchett and Lisa Marie Hatchett Scott. The parties agree that the will’s Second
paragraph gave Juanita a life estate in all the assets of her husband’s estate; they agree
also that on Juanita’s death forty percent of the remainder passed in trust for their
granddaughters Christina and Lisa, under the residuary language of the Fourth
paragraph. The disagreement comes over the will’s disposition of the sixty percent of
Charles’s estate referred to in the will’s Third paragraph. To reach its conclusion that the
disputed sixty percent passed to Sherry and First Baptist Church, Lubbock, the trial court
necessarily determined they were included within the phrase “the remaindermen
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hereinafter named” that appears in the Second paragraph. In my opinion, the will as a
whole supports that view of Charles’s testamentary intent.
That Charles referred to “remaindermen hereinafter named” in the paragraph
giving his wife a life estate demonstrates his intent to name remaindermen in his will.
See, e.g., Dudley v. Jake & Nina Kamin Found., No. 01-12-00579-CV, 2014 Tex. App.
LEXIS 899 (Tex. App.—Houston [1st Dist.] Jan. 28, 2014, no pet.) (mem. op.) (court
presumes testator “placed nothing superfluous or meaningless in his will and that every
word plays a part in the disposition of his property”) (citations omitted). Aside from his
wife, the dispositive provisions of Charles’s will name only four beneficiaries, his daughter
Sherry, First Baptist Church, Lubbock, and his two granddaughters Christina and Lisa.
The will designates percentages to be received by each, and the percentages total 100%.
The “overall structure,” see Hysaw v. Dawkins, 483 S.W.3d 1, 15 (Tex. 2016), of the will’s
dispositive provisions thus supports a conclusion that the “hereinafter named”
remaindermen are the same beneficiaries named in the will.1
Sullivan argues there is a conflict between such a reading of the will and the terms
of its Third paragraph, by which the bequest to Sherry and the church of the disputed
sixty percent is made contingent on the occurrence of one of three events: Juanita’s
death before Charles’s; their deaths in the same accident or disaster; or Juanita’s failure
1 The will includes also references to family members not included in the
dispositions. The Fourth paragraph, which we have quoted above, benefits only two of
Charles and Juanita’s three grandchildren. In the later paragraph reciting that their son
Jerry had died the month before Charles executed his will, the will states their son “did
leave issue,” but that Charles “intentionally made no provision for such issue, intentionally
leaving his issue out of this will, without bequest or devise.”
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to survive him by ninety days or, if earlier, until his will was probated. It is undisputed
none of those three contingencies occurred. Consequently, Sullivan concludes, the Third
paragraph’s bequests are rendered “moot.”2 But Sullivan sees a conflict where none
exists. There is nothing inconsistent between the Third paragraph’s provisions naming
Sherry and the church as recipients of the sixty percent under the stated contingencies
and the Second paragraph’s identification of them as remaindermen after the life estate
given Juanita. The two paragraphs do not provide conflicting dispositions; they provide
alternative dispositions. If any of the eventualities described in the Third paragraph
occurred, no life estate would be created in Juanita. Read together, the Second and Third
paragraphs thus consistently provide for Sherry and the church to receive the disputed
sixty percent after Charles and Juanita both were deceased, regardless of the order or
timing of their deaths, subject only to Juanita’s life estate.
To be sure, Charles’s will could have been more explicit in its naming of
remaindermen to follow Juanita’s life estate. But I see no apparent conflicts or
inconsistencies in the language of the will’s paragraphs Second and Third, and even if
there were, the court’s task is to harmonize them if that is possible under the language of
the will as a whole. Hysaw, 483 S.W.3d at 4 (court determines intent “by construing the
instrument holistically and by harmonizing any apparent conflicts or inconsistencies in the
language”); see Shriner’s Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147,
151 (Tex. 1980) (“[a]ll rules of construction must yield to the basic intention and purpose
of the testator as reflected by the entire instrument”); In re Estate of Catlin, 311 S.W.3d
2As the court made clear in Hysaw, 483 S.W.3d at 15, however, the conditional
nature of a testamentary provision does not negate its value as indicating the testator’s
intent.
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697, 701 (Tex. App.—Amarillo 2010, pet. denied) (court’s task construing will “is to
harmonize potentially conflicting terms in a way that effectuates all aspects of the
document”). The trial court’s construction of the will does so. Sullivan attempts no
reconciliation of the conflict he sees between the language of the Second and Third
paragraphs. He gives no effect to Charles’s words in the Second paragraph referring to
the “remaindermen hereinafter named . . . .” The court concludes that, despite the
wording, the will does not name remaindermen. But, construing the will, we focus not on
what the testator intended to write, but on the meaning of the words actually used. San
Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000) (quoting Shriner’s Hosp.,
610 S.W.2d at 151). Charles said the remaindermen were “hereinafter named.” I can
see no justification for a conclusion he did not mean what he said.
In addition to the failure of Sullivan’s reading to harmonize all the will’s provisions,
In re Estate of Catlin, 311 S.W.3d at 701, other reasons favor the trial court’s construction.
Sullivan acknowledged his reading contravenes our law’s presumption disfavoring partial
intestacy. As the court said in Shriner’s Hosp., “[t]he mere making of a will is evidence
that the testator had no intent to die intestate and creates a presumption that the testator
intended to dispose of his entire estate, and that did not intend to die intestate as to the
whole or any part of his property.” 610 S.W.2d at 151 (citations omitted). The court there
continued, quoting an earlier decision, “[w]here a person makes a will the general
presumption prevails that the testator intended to dispose of all of his property, and there
is no presumption that the testator intended to die intestate as to part of his estate if the
words used in the will may carry the whole of his property.” Id. at 152 (quoting Briggs v.
Peebles, 144 Tex. 47, 188 S.W.2d 147, 150 (1945)). Charles’s will reflects a straight -
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forward and simple estate plan, and the words he used readily carry the whole of his
property, including the remainder interest following his wife’s life estate. No resort to
partial intestacy is necessary to carry out his expressed testamentary intent. See
Shriner’s Hosp., 610 S.W.2d at 151 (when will is open to two constructions, interpretation
will be given it which prevents intestacy).
Sullivan asserts the trial court was “not at liberty to rewrite the will” to avoid a partial
intestacy. The trial court did not rewrite the will but properly ascertained Charles’s
testamentary intent from the words used within the document’s four corners. Hysaw, 483
S.W.3d at 4. Believing the trial court got it right, I respectfully dissent from the court’s
contrary conclusion.
James T. Campbell
Justice
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