In=20
The
For=20
The
SHARON =
SWANK=20
BACKHUS; BENJAMIN F. SWANK, III; SHANNON LEA WERCHAN PICKERING; =
SWANK=20
TURNER BACKHUS; BENJAMIN FONTAINE SWANK, IV; CHRISTIAN HARRIS =
SWANK; AND=20
SUZANNE SWANK PORTER, Appellants HAVEN =
LYNN WERCHAN=20
WISNOSKI AND SHANE ALAN WERCHAN, Appellees
On =
Appeal from the=20
12th District Court Grimes =
County,=20
Texas Trial =
Court Cause=20
No. 30424
MEMORANDUM=20
OPINION This is an =
appeal from=20
a declaratory judgment action. Appellants sought a judicial =
declaration=20
that the partition of certain lands inherited by life tenants, =
Sharon=20
Swank Bacchus and Benjamin F. Swank, III ("B. F."), was valid and =
binding=20
on all parties. Appellants challenge the trial court's denial of =
their=20
request for declaratory judgment in two issues: (1) Is the =
partition made=20
by Sharon Swank Bacchus and B. F. Swank, III valid and =
binding on all=20
persons? and (2) Did the will of E. W. Harris especially grant the =
right=20
of partition to Sharon Swank Backhus and B. F. Swank, =
III? We affirm.
The facts in this case are not =
disputed.=20
This case involves the construction of the will of E. W. Harris, =
the=20
grandfather of Sharon Swank Backhus and B. F. Swank, III. The =
parties=20
agree that Harris's will was probated in Grimes County in November =
1962.=20
In his will, Harris devised life estates in certain lands to his=20
grandchildren, Sharon Swank Backhus and B. F. Swank, III, both of =
whom are=20
the children of Ida Mae Cunningham Swank. Specifically, paragraph=20
"Eighteenth" provides: I give and bequeath (subject to =
the=20
provisions of paragraphs TWENTIETH AND TWENTY-FIRST of my said =
will) unto=20
my granddaughter, Sharon Swank, for and during her natural life a =
one-half=20
undivided interest in and to all the rest and residue of the lands =
of=20
which I may die seized and possessed, she, the said Sharon Swank, =
to have=20
the use and benefit of said lands during her said natural life =
and, at her=20
death, the title to said lands shall vest as provided in paragraph =
TWENTIETH of my said will. In paragraph "Nineteenth," =
Harris devised=20
a similar life estate to Sharon's brother: I give and bequeath (subject to =
the=20
provisions of paragraphs TWENTIETH AND TWENTY-FIRST of my said =
will) unto=20
my grandson, B. F. Swank, III, for and during his natural life a =
one-half=20
undivided interest in and to all the rest and residue of the lands =
of=20
which I may die seized and possessed, he, the said B. F. Swank, =
III, to=20
have the use and benefit of said lands during his said natural =
life and,=20
at his death, the title to said lands shall vest as provided in =
paragraph=20
TWENTIETH of my said will. Paragraph "Twentieth" prohibits =
the sale=20
or encumbrance of the lands bequeathed in paragraphs 18 and 19, =
prior to=20
the vesting of fee simple title in those lands to the heirs of =
Sharon and=20
B. F., which will occur on the death of the last of them. It also =
provides=20
for alternate dispositions if Sharon or B. F. dies before Harris =
without=20
"heirs of the body." Twentieth In connection with the =
bequests, and each=20
of them, set forth in EIGHTEENTH AND NINETEENTH hereinbefore, it =
is my=20
will, and I do especially direct, that none of said lands shall be =
sold,=20
nor encumbered, nor the interest of any person entitled thereto =
under this=20
will, sold, or encumbered, prior to the vesting of the fee simple =
title=20
thereto said lands as provided herein this paragraph, which fee =
simple=20
title it is my will shall not vest in any beneficiary hereunder =
said=20
paragraph until the death of the last surviving child of the said =
Ida Mae=20
Cunningham Swank as survives me. It is my further will, and I do =
direct,=20
that should the said Sharon Swank or B. F. Swank, III, as the case =
may be,=20
be survived by an heir of the body, then said surviving heir (or =
heirs) of=20
said pre-deceased child, or the heirs of the body then living of =
such=20
pre-deceased child, shall take and hold the same interest as would =
have=20
gone to the parent under and by virtue of any paragraph =
hereinbefore=20
mentioned, said surviving child, or the heir, or heirs as the case =
may be,=20
of the body of any pre-deceased child, thereupon the death of said =
last=20
surviving child of the said Ida Mae Cunningham Swank as survives =
me to=20
have and to take the fee simple title thereto said lands and =
premises,=20
share and share alike and per stirpes, pending which event (that =
is the=20
death of said last surviving child of said Ida Mae Cunningham =
Swank as=20
survives me) they shall have the use and benefit of said lands and =
premises in proportion to their respective interest and with the =
right=20
hereby especially granted of partition thereof said lands and =
premises of=20
said respective interests, which partition I direct shall be =
binding upon=20
any and all persons as may take hereunder this will or through any =
party=20
to such partition. It is my will and desire, and I =
so=20
direct, that in the event the said Sharon Swank or the said B. F. =
Swank,=20
III be survived by no heir of the body, then, in such event the =
interest=20
in the lands heretofore bequeathed to him, or her as the case may =
be,=20
shall go to and vest in the survivor of the said Sharon Swank or =
B. F.=20
Swank, III, and upon the death of the last surviving child of the =
said Ida=20
Mae Cunningham Swank as survive me, the fee simple title in and to =
said=20
lands shall go to and vest in the heirs of the body of the said =
Sharon=20
Swank or B. F. Swank, III, as the case may be, such to take the =
same share=20
and share alike and per stirpes; but in the event neither the said =
Sharon=20
Swank nor B. F. Swank, III be survived by an heir of the body, but =
are=20
survived by Ida Mae Cunningham or B. F. Swank, Jr., then the fee =
simple=20
title in and to said lands and premises mentioned in said =
paragraphs=20
EIGHTEENTH and NINETEENTH hereinbefore this will shall go to and =
vest in=20
the said Ida Mae Cunningham Swank and B. F. Swank, III [sic], or =
the=20
survivor of them; but in the event neither the said Ida Mae =
Cunningham=20
Swank nor B. F. Swank, Jr. so survive, then in such event, the =
said lands=20
and premises shall go to and vest in and become a part of the =
Trust=20
Account mentioned under paragraph TWELFTH hereinof this=20
will. I further direct that in the =
event either=20
the said Sharon Swank, B. F. Swank, III, or any beneficiary =
mentioned, or=20
taking, hereunder this paragraph be under the age of twenty-five =
(25)=20
years at my death, the interest of such beneficiary shall be held, =
managed=20
and operated by B. F. Swank, Jr., if living, otherwise by Ida =
Mae=20
Cunningham Swank, as Trustee without requirement of bond until =
said=20
beneficiary shall have reached the age of twenty-five (25) years; =
said=20
Trustee expending for the benefit of said beneficiary such amounts =
of the=20
net proceeds of the management of such interest as such Trustee =
deems=20
proper from time to time, delivering the balance of such Trust =
Account to=20
said beneficiary upon such attaining the age of twenty-five (25)=20
years. The parties dispute the meaning =
of the=20
second sentence of Paragraph "Twentieth," which involves the right =
to=20
partition. In 2006, Sharon and her brother B. F. signed =
reciprocal=20
partition deeds that partitioned the 2622.5 acres devised in their =
grandfather's will as nearly equally as they could determine, =
according to=20
tax assessments. The partition deeds state as consideration that =
Sharon=20
and B. F. (as grantor and grantee or vice versa) agree to =
partition:=20
. . . the 2,622.5 acres of =
land, more or=20
less, which passed under [Harris's will] by Deed so as to effect =
by=20
separate instruments of conveyance, a partition of said 2,622.5 =
acres of=20
land in a manner so that each of the Parties hereto, their heirs, =
personal=20
representatives, successor and assigns shall henceforth own and =
hold title=20
to the land which the parties have mutually agreed to partition =
and which=20
is described in each of two Partition Deeds. After they signed the partition =
deeds,=20
Sharon and B. F. asked their children to ratify the deed. All but =
two, the=20
appellees, did so. Because appellees would not =
ratify the=20
partition deed, appellants petitioned for a declaratory judgment =
seeking a=20
declaration that Harris's will gave Sharon and B. F. the =
right to=20
partition the lands in question, that such a partition would be =
binding on=20
all parties, that the partition they made is binding on all =
parties, and=20
that the partition deeds are valid and enforceable. The trial =
court denied=20
appellants' request for declaratory judgment and issued findings =
of fact=20
and conclusions of law, in which the trial court concluded that =
the will=20
provision at issue was not ambiguous and that the word "they" in =
paragraph=20
20 did not refer only to Sharon and B. F. Standard =
of=20
Review We review declaratory judgments =
under the=20
same standards as other judgments and decrees. Rollins v. Am. =
Express=20
Travel Related Servs. Co., 219 S.W.3d 1, 3 (Tex. =
App.--Houston [1st=20
Dist.] 2006, no pet.). Because the construction of a will is a =
question of=20
law for the trial court, we review the trial court's judgment de =
novo.=20
Hurley v. Moody Nat'l Bank of Galveston, 98 S.W.3d 307, =
310 (Tex.=20
App.--Houston [1st Dist.] 2003, no pet.); see Epstein =
v.=20
Hutchison, 175 S.W.3d 805, 807 (Tex. App.--Houston [1st =
Dist.] 2004,=20
pet. denied). Voluntary=20
Partition Common owners of land may =
voluntarily=20
effect a partition, which segregates their possession and use. =
Bunting=20
v. McConnell, 545 S.W.2d 30, 31 (Tex. Civ. App.--Houston [1st =
Dist.]=20
1976, no writ); Houston Oil Co. v. Kirkindall, 136 Tex. =
103, 109,=20
145 S.W.2d 1074, 1077 ( 1941). In their first =
issue,=20
appellants ask, "Is the partition made by Sharon Swank Bacchus and =
Benjamin F. Swank, III valid and binding on all persons? The =
partition=20
deeds executed by Sharon and B. F. purport to partition fee simple =
title=20
in the lands to which each owns only a life estate in an undivided =
1/2=20
interest. Because these deeds purport to partition a higher estate =
than=20
what Sharon and B. F. owned as cotenants, the partitions are not =
valid.=20
See Tieman, 63 Tex. at 641; Dierschke, 876 =
S.W.2d at=20
379-80; Luker, 226 S.W.2d at 483; =
Evans, 166=20
S.W.2d at 958-59. We overrule=20
appellants' first issue. Will=20
Construction "The basic =
principle in=20
construing a will is to ascertain the intent of the testator." =
Hancock=20
v. Krause, 757 S.W.2d 117, 119 (Tex. App.--Houston [1st =
Dist.] 1988,=20
no writ). If the language of the will is unambiguous and plainly =
expresses=20
that intention, it is unnecessary for the court to apply the =
technical=20
rules of construction; rather, the court is confined to a mere =
legal=20
interpretation and enforcement of the testator's intention. =
Id.=20
(citing Silverthorn v. Jennings, 620 S.W.2d 894, 896 =
(Tex. Civ.=20
App.--Amarillo 1981, writ ref'd n.r.e.)). To determine the =
testator's=20
intent, we consider the whole instrument and, if possible, =
harmonize every=20
provision of the will with all others to give the will its proper =
effect.=20
Id. at 119-20 (citing Republic Nat'l Bank v. =
Fredericks,=20
155 Tex. 79, 283 S.W.2d 39 (1955)). A will is not =
effective=20
until the death of the testator, and a devise will lapse if the =
devisee=20
dies before the testator, so testators often include alternate=20
dispositions, in case a beneficiary dies before the testator. =
See=20
Coleman v. Jackson, 126 S.W. 1178, 1179-80 (Tex. Civ. =
App.--San=20
Antonio 1910, writ ref'd). Reference to death of devisee when =
coupled with=20
a provision for an alternate beneficiary is usually construed to =
mean=20
death prior to that of the testator. Austin Presbyterian =
Theological=20
Seminary v. Moorman, 391 S.W.2d 717, 722 (Tex. 1965). =
Similarly, a=20
person's heirs are not determined until his or her death. =
See=20
Tex. Prob. Code Ann. =A7=A7 3, 37 (Vernon 2003 & Vernon Supp.=20
2007). In their second =
issue,=20
appellants ask, "Did the will of E. W. Harris especially grant the =
right=20
of partition to Sharon Swank Backhus and B. F. Swank, III?" =
Appellants=20
argue that Harris's will grants Sharon and B. F. the right to =
partition=20
the land. Appellees argue that the same provision in the will =
grants=20
Harris's great-grandchildren (Sharon's and B. F.'s children) the =
use and=20
benefit of the land and the right to partition it, with such =
partition=20
binding on whomever eventually survives Sharon and B. F. Neither=20
construction comports with the plain meaning evident in the will=20
itself. In paragraphs =
"Eighteenth"=20
and "Nineteenth,"Harris's will clearly gave Sharon and B. F. each =
a life=20
estate in a "one-half undivided interest in" certain lands. In the =
first=20
part of the disputed sentence, Harris makes an alternate =
disposition of=20
the life estates: It is my further =
will, and I=20
do direct, that should the said Sharon Swank or B. F. Swank, III, =
as the=20
case may be, be survived by an heir of the body, then said =
surviving=20
heir (or heirs) of said pre-deceased child, or the heirs of =
the body=20
then living of such pre-deceased child, shall take =
and hold=20
the same interest as would have gone to the parent under and =
by=20
virtue of any paragraph hereinbefore mentioned . . .=20
. (Emphasis added).=20
The words =
"pre-deceased=20
child" refer to the possibility that either Sharon or B. F. might =
have=20
died before Harris. The paragraphs "hereinbefore mentioned" were=20
paragraphs "Eighteenth" and "Nineteenth," in which Harris gave his =
two=20
grandchildren life estates, and the life estate is the "same =
interest as=20
would have gone to the parent." Thus, this part of the will grants =
that if=20
either B. F. or Sharon died before Harris, his or her surviving =
children=20
would take the life estate their parent would have inherited in =
paragraph=20
"Eighteenth" or "Nineteenth." The entirety of =
the sentence=20
the parties dispute is premised on either Sharon or B.F. dying =
before=20
Harris. The antecedent of the pronoun "they" in the phrase =
devising the=20
right to partition refers to "said surviving child, or the heir, =
or heirs=20
as the case may be, of the body of any pre-deceased child." =
. . . said =
surviving=20
child, or the heir, or heirs as the case may be, of the body of =
any=20
pre-deceased child, thereupon the death of said last =
surviving child=20
of the said Ida Mae Cunningham Swank as survives me to have and to =
take=20
the fee simple title thereto said lands and premises, share and =
share=20
alike and per stirpes, pending which event (that is the death of =
said last=20
surviving child of said Ida Mae Cunningham Swank as survives me)=20
they shall have the use and benefit of said lands and =
premises in=20
proportion to their respective interest and with the right =
hereby=20
especially granted of partition thereof said lands and premises of =
said=20
respective interests, which partition I direct shall be =
binding upon=20
any and all persons as may take hereunder this will or through any =
party=20
to such partition. (Emphasis=20
added). Both Sharon and B. =
F.=20
survived Harris. Therefore, this paragraph does not apply, and we =
reject=20
appellants' construction. Both are still alive, and therefore, =
they do not=20
yet have heirs. We likewise reject appellees' construction. We =
conclude=20
that this paragraph does not apply to or govern the current =
situation.=20
We overrule =
appellants'=20
second issue. We affirm the =
judgment of=20
the trial court. Sam =
Nuchia Justice Panel consists of =
Justices=20
Nuchia, Hanks, and Higley.=20
The Property=20
Code also provides for a judicial partition, "A joint owner or =
claimant of=20
real property or an interest in real property or a joint owner of =
personal=20
property may compel a partition of the interest or the property =
among the=20
joint owners or claimants." Tex. Prop. Code Ann. =A7 23.001 =
(Vernon=20
2000).