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Opinion issued June 18, = 2009 Appellant,=20
Mary Rochene Ray, appeals from the trial court's summary judgment =
in favor=20
of appellee, Ronald Lee McMaster. The trial court determined that, =
as a=20
matter of law, the 1992 wills of Ernest and Velma Alley were =
contractual=20
and that McMaster was the beneficiary. In three issues, Ray =
contends the=20
trial court erred by determining the wills were contractual wills. =
Ray=20
asserts the wills fail to meet the requirements of the Probate =
Code in=20
that they do not describe the material provisions of the contract. =
Alternatively, Ray claims the wills fail to meet the two common =
law=20
requirements for contractual wills in that the wills grant a fee =
simple=20
estate and do not provide for a plan of distribution that treats =
the=20
estates as one estate. We conclude the wills are not contractual =
wills=20
because they fail to meet the requirements of the Probate Code and =
the=20
common law. Therefore, after Velma's death, Ernest could properly =
bequeath=20
his property to Ray instead of McMaster. We reverse and render =
judgment in=20
favor of Ray.Background Ernest and=20
Velma Alley, a married couple with no children, executed separate =
wills in=20
1992. Ernest's 1992 will provides, 1. (A) One=20
Hundred percent (100%) to my spouse, VELMA FRANCES ALLEY, . . . if =
my=20
spouse survives me; (B) If my=20
spouse predeceases me, then equally to "my nephew" who survives =
me, per=20
stirpes. At present, for purposes of this WILL, my nephew=20
is: (1) RONALD=20
LEE MC MASTER . . . . 2. . =
. . .=20
8. Velma's=20
will contains identical provisions except she names Ernest as her =
spouse=20
in paragraph 1(A). After she died in October 1994, Velma's will =
was=20
probated. Ernest took her property under the terms of her =
will. Ernest=20
executed a new will in 1999, revoking his 1992 will. The 1999 will =
devised=20
Ernest's estate to Ray, Velma's niece. After Ernest died in 2001, =
Ray=20
applied for probate of Ernest's 1999 will. Ray was named executor =
of=20
Ernest's estate. McMaster filed this suit contending that, by =
making the=20
1999 will, Ernest breached the contract he had with Velma because =
the 1992=20
will constituted a contract between Ernest and Velma to bequeath =
all their=20
property to McMaster. McMaster sought to set aside the order =
probating=20
Ernest's 1999 will and to impose a constructive trust in his favor =
on=20
Ernest's estate. Ray filed a=20
motion for summary judgment, asserting that, as a matter of law, =
the 1992=20
wills were not contractual and seeking a final summary judgment in =
her=20
favor. The trial court denied Ray's motion. Almost two years =
later,=20
McMaster filed a motion for partial summary judgment, claiming =
that the=20
1992 wills were contractual as a matter of law. Ray filed a =
response. The=20
trial court granted McMaster's motion for summary judgment and =
severed=20
that portion of the case dealing solely with whether the 1992 =
wills were=20
contractual wills. Ray appealed. We review=20
summary judgments de novo. Valence Operating Co. v. =
Dorsett, 164=20
S.W.3d 656, 661 (Tex. 2005). Summary judgment is proper only when =
a movant=20
establishes that there is no genuine issue of material fact and =
that the=20
movant is entitled to judgment as a matter of law. Tex. R. Civ. P. =
166a(c). In reviewing a summary judgment, we must indulge every =
reasonable=20
inference in favor of the nonmovant, take all evidence favorable =
to the=20
nonmovant as true, and resolve any doubts in favor of the =
nonmovant.=20
Valence Operating Co., 164 S.W.3d at 661. When both=20
sides move for summary judgment and the trial court grants one =
motion and=20
denies the other, we review the summary judgment evidence =
presented by=20
both sides and determine all questions presented. Comm'rs =
Court v.=20
Agan, 940 S.W.2d 77, 81 (Tex. 1997); Cigna Ins. Co. v.=20
Rubalcada, 960 S.W.2d 408, 411-12 (Tex. App.--Houston [1st =
Dist.]=20
1998, no pet.). We render such judgment as the trial court should =
have=20
rendered. Agan, 940 S.W.2d at 81; Rubalcada, 960 =
S.W.2d=20
at 412. Challenging=20
the trial court's determination that the wills were contractual =
wills, Ray=20
claims the wills do not meet the requirements of the Probate Code =
or=20
common law. A.=20
Applicable Law Section 59A=20
of the Probate Code, entitled "Contracts Concerning Succession,"=20
provides, (a) A=20
contract to make a will or devise, or not to revoke a will or =
devise, if=20
executed or entered into on or after September 1, 1979, can be =
established=20
only by: (1)=20
provisions of a written agreement that is binding and enforceable; =
or (2)=20
provisions of a will stating that a contract does exist and =
stating the=20
material provisions of the contract. (b) The=20
execution of a joint will or reciprocal wills does not by itself =
suffice=20
as evidence of the existence of a contract.
Tex. Prob.=20
Code Ann. =A7 59A (Vernon Supp. 2008). In addition=20
to the requirements in the Probate Code, Texas courts apply a =
two-part=20
test to determine if a will is contractual. See In re Estate =
of=20
Friesenhahn, 185 S.W.3d 16, 19 (Tex. App.--San Antonio 2005, =
pet.=20
denied) (citing Magids v. Am. Title Ins. Co., 473 S.W.2d =
460, 464=20
(Tex. 1971)); Reynolds v. Estate of Benefield, 995 S.W.2d =
885,=20
888 (Tex. App.--El Paso 1999, pet. denied). First, the property at =
issue=20
must not be conveyed to the survivor as an absolute and =
unconditional=20
gift. Friesenhahn, 185 S.W.3d at 19; Reynolds, =
995=20
S.W.2d at 888. Second, the remainder of the estate of the first to =
die and=20
the estate of the survivor are treated as a single estate =
following the=20
death of the survivor, which must be jointly disposed of by both =
testators=20
in the secondary dispositive provisions of the will. =
Friesenhahn,=20
185 S.W.3d at 19; Reynolds, 995 S.W.2d at 888. Both parts =
of the=20
test must be satisfied in order to find a will contractual. =
See=20
Reynolds, 995 S.W.2d at 888 (citing In re Estate of =
Johnson,=20
781 S.W.2d 390, 393 (Tex. App.--Houston [1st Dist.] 1989, writ =
denied)).=20
Texas courts view contractual wills cautiously and no inferences =
or=20
presumptions are indulged in favor of contractual wills.=20
Friesenhahn, 185 S.W.3d at 19 (citing Magids v. Am. =
Title=20
Ins. Co., 473 S.W.2d 460, 464 (Tex. 1971)). B.=20
Analysis of Probate Code Requirements for Contractual=20
Wills In her=20
third issue, Ray contends the trial court erred by granting =
summary=20
judgment for McMaster because the 1992 wills do not state the =
material=20
provisions of the contract, as required by the Probate Code. =
McMaster=20
responds, without supporting authority, that paragraphs 1 and 8 =
are the=20
material provisions of the contract and therefore the statutory=20
requirements are met. The dispute=20
here concerns only the second alternative in section 59A(a)(2): =
whether=20
there is a provision in the will that states the material =
provisions of=20
the contract. See The wills=20
at issue here state, I =
hereby=20
declare that I have an oral and/or written agreement with my =
spouse as to=20
the disposition which may be made of my property, any property =
taken under=20
this Will or my spouse's property upon the death of either of us. =
We have=20
identical, or legally similar Wills, intending thereby to be =
contractually=20
bound. The=20
language in the wills does not expressly recite the consideration=20
exchanged for the contract or state the wills could not be changed =
or=20
revoked without mutual consent. See Coffman, 696 S.W.2d =
at 387.=20
The language in the wills does not expressly state the wills are=20
contractual wills under section 59A of the Probate Code. See=20
Hearn, 101 S.W.3d at 660. Furthermore, the wills do not state =
what=20
the contract requires in the event of the first person's death. =
See=20
id. Although the wills show the spouses have an agreement to =
be=20
contractually bound, that reference is insufficient under section=20
59A(a)(2) because the will must state more than the fact that a =
contract=20
exists; it must state the material provisions of the contract.=20
See Tex. Prob. Code Ann. =A7 59A(a)(2). We hold the=20
1992 wills do not meet the requirements of the Probate Code =
providing that=20
a contractual will "can be established only by . . . provisions of =
a will=20
stating that a contract does exist and stating the material =
provisions of=20
the contract." See id. We sustain=20
Ray's third issue. Having determined the wills are not contractual =
wills=20
due to their failure to comply with the Probate Code, it is =
necessary to=20
reverse the summary judgment that determined the wills were =
contractual=20
wills. But even if the wills met the terms of the Probate Code, we =
also=20
conclude the summary judgment would have to be reversed because =
the wills=20
fail to meet the common law requirements for contractual =
wills. C.=20
Analysis of Common Law Requirements for Contractual=20
Wills 1.=20
Extent of the Devise In her=20
first issue, Ray Here, the=20
wills fail to meet the first part of the Friesenhahn =
test, which=20
requires that the property must not be conveyed to the survivor as =
an=20
absolute and unconditional estate. See Friesenhahn, 185 =
S.W.3d at=20
19. The wills "devise and bequeath all of my property, both real =
and=20
personalty, . . . One Hundred percent (100%) to my spouse, . . . =
if my=20
spouse survives me." There are no express limitations or =
conditions=20
creating a lesser estate. This is a "clear and decisive" grant of =
a fee=20
simple estate. See Cooley v. Williams, 31 S.W.3d 810, 812 =
(Tex.=20
App.--Houston [1st Dist.] 2000, no pet.); see also=20
Friesenhahn, 185 S.W.3d at 20 (holding language in =
husband's will=20
stating property "shall pass to and vest in my wife" was =
unconditional=20
grant and devised fee simple absolute). McMaster=20
contends that paragraphs 1(B) and 8, when read together, indicate =
that=20
Velma's devise to Ernest was limited. Specifically, McMaster =
asserts, "The=20
agreement made between the spouses in Paragraph 8 limits the gift =
made in=20
Paragraph 1 such that the gift to the surviving spouse is not =
absolute and=20
unconditional. The first to die leaves their [sic] estate to the =
surviving=20
spouse with the limitation that on the death of the second spouse =
their=20
remaining joint estates are left to Ronald Lee McMaster." McMaster =
cites=20
to no authority construing similar language. McMaster does attempt =
to=20
distinguish cases cited by Ray, such as Friesenhahn. =
McMaster=20
contends this case is distinguishable from Friesenhahn =
because=20
the will in that case did not provide for a disposition of the =
joint=20
estate upon the wife's death. See Friesenhahn, 185 S.W.3d =
at 20.=20
We disagree=20
with McMaster's contention. Consistent with the plain language of =
the=20
will, as read to devise the greatest estate possible, see =
Cooley,=20
31 S.W.3d at 812, we conclude the language covered three =
possibilities.=20
First, if Velma died but Ernest survived, Velma devised fee simple =
absolute of her entire estate to Ernest. Second, if Ernest =
predeceased=20
Velma, Velma devised fee simple absolute of her entire estate to =
McMaster.=20
Third, if both Ernest and McMaster died before Velma, Velma =
devised fee=20
simple absolute to her heirs. We hold the trial court erred by =
granting=20
McMaster's summary judgment because, as a matter of law, the =
written=20
documents establish that Velma's 1992 will granted Ernest a fee =
simple=20
absolute without limitation or condition, which means that after =
Velma=20
died, Ernest could change the person to whom he bequeathed his =
property.=20
We sustain=20
Ray's first issue. 2.=20
Joint Disposition of Estates In her=20
second issue, Ray contends the trial court erred by granting =
summary=20
judgment for McMaster because the 1992 wills do not provide for a =
joint=20
disposition of the estate of the first to die. As noted above, =
McMaster=20
contends paragraphs 1 and 8 operate to provide a joint=20
disposition. However, as=20
explained above, Velma's will set forth the disposition of her =
estate in=20
the case of three alternative possibilities. The existence of =
alternate=20
beneficiaries does not create a condition or limitation on a =
devise of fee=20
simple. Friesenhahn, 185 S.W.3d at 20. The will at issue =
in=20
Friesenhahn provided, It is my=20
will and desire that my home at 4597 Stuart Road, Adkins, Bexar =
County,=20
Texas 78101, shall pass to and vest in my wife, ELAINE LOUISE =
FRIESENHAHN,=20
and I do hereby devise said real property to her. . =
. .=20
.
It is my=20
will and desire that in the event my said wife, Elaine Louise =
Friesenhahn,=20
shall predecease me, then and in that event the said property at =
4597=20
Stuart Road, Adkins, Bexar County, Texas, shall then pass to and =
vest in=20
said children, Danny Friesenhahn, Dale Friesenhahn, and Diane =
Anglin, and=20
I do hereby devise and bequeath said property and estate unto =
them, share=20
and share alike. . =
. .=20
. I =
have=20
executed this Last Will and Testament concurrently with my said =
wife,=20
Elaine Louise Friesenhahn, having executed her Last Will and =
Testament, a=20
copy of which is attached hereto and made a part hereof, both of =
said Last=20
Wills and Testaments having been executed in accordance with a =
contract=20
between us, and this is to acknowledge that both said wills are=20
contractual and can not be revoked without the written consent of =
both=20
myself and my wife. McMaster=20
also contends "a will should be read as a whole to determine =
whether it=20
was executed by the parties to carry out a planned disposition of =
the=20
joint estate of the survivor." McMaster cites a number of cases to =
support=20
this proposition. However, the wills at issue in the cited cases =
contain=20
express language making it clear a joint disposition was intended. =
For=20
example, in Murphy v. Slaton, the will provided, =
It is our=20
will and desire that the survivor of us . . . shall, with the =
rights and=20
authority below given, have all the estate of every description, =
real,=20
personal or mixed, which either or both of us may own at our =
death, to be=20
used, enjoyed, occupied and conveyed by such survivor for and =
during his=20
or her life time, as the case may be, and that upon the death =
of such=20
survivor any of such estate then remaining shall be divided =
among the=20
persons following and in the following manner =
. . . .=20
273 S.W.2d=20
588, 590 (Tex. 1954) (emphasis added). The will in Novak v.=20
Stevens had similar language providing for the surviving =
spouse to=20
have full use of the estate but specifically providing for a =
devise of the=20
remaining estate "upon the death of such survivor." 596 S.W.2d =
848, 851=20
(Tex. 1980); see also Dougherty v. Humphrey, 424 S.W.2d =
617, 619=20
(Tex. 1968) (devising estate to surviving spouse and devising all =
property=20
remaining "upon the death of such survivor" to another =
beneficiary);=20
Harrell v. Hickman, 215 S.W.2d 876, 877 (Tex. 1948) =
(granting=20
estate to surviving spouse and providing devise of "the remainder =
of our=20
property" "[a]fter the death of both of us"). Here, the=20
will does not expressly provide for a joint disposition of the =
estate of=20
both spouses. We hold the language of these wills does not =
indicate an=20
intent to dispose of both estates as one in furtherance of a =
contractual=20
agreement. We sustain=20
Ray's second issue. We reverse=20
the judgment of the trial court determining that the 1992 wills of =
Ernest=20
and Velma Alley were contractual as a matter of law and render =
judgment=20
that the 1992 wills were not contractual as a matter of =
law.
Elsa Alcala=20
Panel=20
consists of Justices Alcala, Hanks and Wilson. 1. In relevant part, the will in Estate =
of Hearn=20
v. Hearn states, In=20
paragraph D-5 of the Trust Agreement, my husband [and in the case =
of=20
Vernon's will, "my wife"] and I have contracted that we each will =
execute=20
and maintain in force a will which directs our respective =
executors to=20
make a marital deduction election under certain circumstances. In=20
accordance with such agreement, and to evidence and perfect =
the same=20
in accordance with Section 59A of the Texas Probate Code, I =
hereby=20
direct that if I am the "first deceased trustor" =
within=20
the meaning of the Trust Agreement, my executor shall elect in =
full=20
Section 2056(b)(7) of the Internal Revenue Code to have all =
property=20
passing to the Marital Trust established under Section D of the =
Trust=20
Agreement treated as qualified terminable interest property for =
federal=20
estate tax marital deduction purposes. 101 S.W.3d=20
657, 660 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) =
(emphasis=20
added).=20
2. In relevant part, the will in Coffman =
v.=20
Woods states, So that no=20
contention may arise concerning the same, when we or either of us =
be dead,=20
we do hereby each mutually in consideration of the other =
making this=20
will, and of the provisions made herein in each other's =
behalf, make=20
this our last will and testament and agree that the same =
cannot be=20
changed or varied by either without the consent in writing of the=20
other. 696 S.W.2d=20
386, 387 (Tex. App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.) =
(emphasis added).=20
3. The Honorable Davie L. Wilson, retired =
Justice,=20
First Court of Appeals, participating by assignment.=20
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