dissenting.
I respectfully dissent. I agree with the majority that the will of Wade Miller, deceased, is ambiguous. However, I do not agree that the summary judgment evidence disposes of the fact issue of the testator’s intent as to the disposition of his property. *137To me, the attorney’s affidavit accompanying the appellee life tenant’s motion for summary judgment is not, as required by Tex.R.Civ.P. 166-A, sufficiently free from contradiction and inconsistencies as to entitle the appellee/movant to judgment.
My reading of the affidavit, which was submitted by the attorney who prepared the testator’s will, indicates that the testator did not intend to prohibit the appellee, his widow, and the appellants, his children, from jointly benefitting by mutually agreeable development of the properties bequeathed.
On the one hand, the affidavit recites that the testator’s intent was that his children "would not take under the will if this condition [“that they not sell or attempt to mortgage or convey”] was violated and that the property should not vest in them under these conditions.” On the other hand, the affidavit recites in the very next sentence that “He did not want his children to interfere in any way with [appellee] Bu-lah Miller’s use, occupancy or enjoyment of the property and if they did, they would not take under the will....”
Bulah Miller’s fullest “use, occupancy or enjoyment of the property” required that she be able to benefit from the execution of valid leases on the property as life tenant. Literally, her enjoyment of the property would be interfered with by the remainder-men’s refusal to join with her in the execution of leases she might seek to execute. Because it is hornbook law that a valid lease can only be executed by the joinder of life estate and remainder interests, the life tenant’s fullest benefit and enjoyment of the property requires that the remainder-men be able to join her in the execution of leases on terms and conditions she desired.
The reasonable conclusion to be drawn from these conflicting affidavit statements of the testator’s intent is that (1) he desired that the remaindermen not interfere with or complicate the life tenant’s enjoyment and occupancy of the estate by sales, mortgages or conveyances of their interests, and that (2) he did not contemplate that the remaindermen’s execution of mineral leases desired by the life tenant and jointly advantageous to all parties, would be proscribed “conveyances” that brought on automatic forfeiture of their estates.
I believe that a fact question exists as to the essential issue of the testator’s intent, and that summary judgment was thereby precluded.
I would reverse and remand to the trial court.