IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 05-0538

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In re Estate of = Marvin Nash,=20 Deceased

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On Petition for Review from the =

Court of Appeals for the Ninth = District of=20 Texas

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Argued September=20 28, 2006

Chief Justice Jefferson = delivered the=20 opinion of the Court.

While death=20 is certain, divorce is not. In this case, the testator anticipated the = former=20 but did not prepare for the latter. His will=97executed while he was = married and=20 designating his then-spouse as primary beneficiary=97remained unchanged = when he=20 died, notwithstanding his divorce some two years earlier. The = Legislature=20 addressed devises in favor of former spouses by enacting Probate Code = section=20 69, which provides that if a testator divorces after executing a will,=20 provisions that favor the former spouse must be read as if the former = spouse=20 predeceased the testator. The question presented here is whether a = contingent=20 bequest to the testator=92s former stepdaughter is a provision favoring = his former=20 spouse. We conclude it is not and affirm the court of appeals=92 = judgment.

Background

Marvin and=20 Vicki Nash were married at the time he executed his will in 1994. Vicki = was=20 named the primary beneficiary, and Shelley Tedder=20 (Vicki=92s daughter and Nash=92s then-stepdaughter) was named contingent = beneficiary. The relevant provisions of Nash=92s will are set out = below:

Disposition of=20 Residue

I give,=20 devise and bequeath all of the rest and residue of my estate, of every = kind and=20 character, real, personal and mixed, but not including any property over = which I=20 have a power of appointment, unto my beloved wife, VICKI LYNN NASH, in = fee=20 simple forever, if she survives me by thirty (30) days.

First=20 Alternate Disposition of Residue

In the=20 event that my wife and I die at the same time or in the event that she = does not=20 survive me by thirty (30) days or in the event that my wife should = predecease=20 me, then and in either of these events, I give, devise and bequeath all = of the=20 rest and residue of my estate, of every kind and character, real, = personal and=20 mixed, but not including any property over which I have a power of = appointment=20 unto my beloved step-child, SHELLEY RENE TEDDER.

Marvin and=20 Vicki Nash divorced on July 8, 2002. When Nash died on April 29, 2004, = he had=20 made no changes to the will he executed some ten years earlier. Both = Vicki Nash=20 and Shelley Tedder survived Marvin Nash.

Nash=92s=20 nephew, Russell Nash, filed an application for independent = administration,=20 stating that Marvin died intestate and providing the names of Marvin=92s = two other=20 heirs at law: Marvin=92s brother, Leroy Nash; and Marvin=92s mother, Pat = Nash.[1] The application stated that = Nash and=20 Vicki were divorced at the time of Nash=92s death, that Nash never = adopted Tedder, and that the trial court should therefore = partition=20 Nash=92s estate among his heirs.

On = May 25,=20 2004, the trial court granted Russell=92s application and ordered the = clerk to=20 issue letters of independent administration to Russell. Two days later, = Tedder opposed Russell=92s application and sought = to probate=20 Nash=92s will herself. Tedder claimed that = Nash left a=20 valid will that had never been revoked and that she, as the contingent=20 beneficiary, was the alternate independent executrix. After a hearing, = the trial=20 court stayed the letters of administration. Russell, Pat, and Leroy Nash = opposed=20 the probate of Nash=92s will and sought a = declaratory=20 judgment that Tedder take nothing. The trial = court=20 admitted Nash=92s will to probate, issued letters testamentary to Tedder, and declared that Tedder=20 was entitled to Nash=92s entire estate.[2] Pat and Leroy Nash appealed. = The court of=20 appeals reversed the trial court=92s judgment in part, holding that = Marvin Nash=92s=20 estate descends to his heirs at law because the requisite condition = precedent=20 for Shelley Tedder to inherit under Nash=92s = will never=20 occurred. 164 S.W.3d 856, 857. We granted = Tedder=92s petition for review. 49=20 Tex.=20 Sup. Ct. J. 509 (Apr. 21, 2006).

Discussion

Before 1997,=20 Probate Code section 69(a) provided:

(a) If,=20 after making a will, the testator is divorced or the testator=92s = marriage is=20 annulled, all provisions in the will in favor of the testator=92s former = spouse,=20 or appointing such spouse to any fiduciary capacity under the will or = with=20 respect to the estate or person of the testator=92s children, shall be = null and=20 void and of no effect unless the will expressly provides otherwise.

Act of May 24,=20 1995, 74th Leg., R.S., ch. 642, =A7 2, 1995 = Tex. Gen.=20 Laws 3516, 3516, amended by Act of May 22, 1997, 75th Leg., R.S., = ch. 1302, =A7 5, 1997 Tex. Gen. Laws 4954, = 4955‑56. In 1997,=20 the Legislature added the phrase =93must be read as if the former spouse = failed to=20 survive the testator,=94 so that the statute now provides, in relevant = part:

(a) If,=20 after making a will, the testator is divorced or the testator=92s = marriage is=20 annulled, all provisions in the will in favor of the testator=92s former = spouse,=20 or appointing such spouse to any fiduciary capacity under the will or = with=20 respect to the estate or person of the testator=92s children, must be = read as=20 if the former spouse failed to survive the testator, and shall be = null and=20 void and of no effect unless the will expressly provides otherwise.

Tex. Prob. = Code =A7 69(a) (emphasis added); Act of May = 22, 1997,=20 75th Leg., R.S., ch. 1302, =A7 5, 1997 Tex. = Gen. Laws=20 4954, 4955‑56.

Tedder contends that the Legislature=92s 1997 = amendments=20 govern all contingent bequests; that is, that the entire will should be = read =93as=20 if the former spouse failed to survive the testator.=94 She argues that, = absent=20 such a construction, the 1997 language adds nothing to the statute, = which=20 already provided that bequests in favor of a former spouse would be = =93null and=20 void and of no effect.=94 She also points to Calloway v. Estate of = Gasser,=20 558 S.W.2d 571, 575-76 (Tex. Civ. = App.=97Tyler 1977,=20 writ ref=92d n.r.e.), in which=20 the court held that, after divorce, the will should be construed and = given=20 effect as though the former spouse had predeceased the testatrix, = =93thereby=20 passing the decedent=92s estate to the contingent beneficiaries.=94 = Tedder argues that the Legislature=92s 1997 = amendments were=20 intended to codify Calloway.

The = Nashes contend that section 69 applies only to = provisions=20 that favor the former spouse. Because the contingent bequest to Tedder does not favor Marvin Nash=92s former = spouse, the will=20 must be construed as written. Vicki Nash did not predecease Marvin, so = the=20 contingent bequest did not become operative, and the estate passes to = Marvin=20 Nash=92s heirs at law.

We = agree with=20 the Nashes. When construing a statute, our = primary=20 objective is to determine the Legislature=92s intent which, when = possible, we=20 discern from the plain meaning of the words chosen. State=20 v. Shumake, 199 S.W.3d 279, 284 = (Tex. 2006); City of San = Antonio v. City of Boerne, 111=20 S.W.3d 22, 25 (Tex. 2003). If a statute is = clear and=20 unambiguous, we apply its words according to their common meaning = without resort=20 to rules of construction or extrinsic aids. Fitzgerald v. Advanced = Spine=20 Fixation Sys., Inc., 996 S.W.2d 864, = 865-66=20 (Tex. 1999).=20

The = language=20 of the pre-1997 versions of section 69 was clear despite the more recent = phrase=20 added by the Legislature: those provisions in a will that favor a former = spouse=20 are of no effect. See, e.g., Smith v. Smith, 519 = S.W.2d=20 152, 154 (Tex. Civ. App.=96Dallas 1975, writ = ref=92d) (stating that section 69=92s policy = objective is to=20 give effect to the testator=92s intentions regarding the disposition of = his=20 property). The 1997 language=97=93must be read as if the former spouse = failed to=20 survive the testator=94=97does nothing more than restate the =93null and = void and of=20 no effect=94 statutory text. Tex. Prob. Code =A7=20 69(a). While we recognize that we should avoid, = when=20 possible, treating statutory language as surplusage,=20 Sultan v. Mathew, 178 S.W.3d 747, 751 (Tex. 2005), there are = times when=20 redundancies are precisely what the Legislature intended, see = In re=20 City of Georgetown, 53 S.W.3d 328, 336 (Tex. 2001) (noting that = statutory=20 redundancies may mean that =93the Legislature repeated itself out of an = abundance=20 of caution, for emphasis, or both=94).

Our = interpretation of section 69 is consistent with the manner in which the = courts=20 of appeals interpreted section 69 prior to the 1997 amendments. The = Houston and=20 Eastland courts held that contingent bequests (similar to the one at = issue here)=20 failed when the former spouse had not actually predeceased the testator, = despite=20 section 69. See McFarlen v. McFarlen, 536 S.W.2d 590, 591-92 (Tex. Civ. App.=96Eastland 1976, no writ) (noting that = =93[s]ection 69 . . . merely provides that provisions in = a will=20 favoring the testator=92s divorced spouse are a nullity, not the entire = will=94);=20 Volkmer v. Chase, 354 S.W.2d = 611, 615=20 (Tex. Civ. App.=96Houston 1962, writ ref=92d n.r.e.) (holding that contingent bequest in favor of two of = testator=92s=20 three children failed because contingency=97that former spouse = predecease=20 testator=97had not occurred). Similarly, in Formby v. Bradley, = 695 S.W.2d=20 782, 783-84 (Tex. App.=96Tyler 1985, writ ref=92d n.r.e.), the Tyler court of appeals held that = section 69 did=20 not trigger a contingency based on the simultaneous death of the = testator and=20 his former spouse, so that the appellee (a = third=20 party) was not entitled to serve as independent executrix. And though in = Calloway, the Tyler court of appeals held that = section 69=20 allowed the estate in question to pass to the named contingent = beneficiaries in=20 the will, the court was careful to distinguish its holding from both = Volkmer and McFarlen on the case=92s facts. = Calloway, 558 S.W.2d at 576-77.[3] While Tedder=20 asserts that the 1997 amendments were intended to codify = Calloway, it is=20 difficult to imagine the Legislature would have waited twenty years to=20 incorporate that holding. As the court of appeals noted, =93[t]he = Legislature=20 could have revised the Probate Code to require that the entire will be = read as=20 though the former spouse had predeceased the testator, but it did not do = so.=94=20 164 S.W.3d at 860 (emphasis omitted).

Because=20 section 69 affects only those provisions in a will that favor the = divorced spouse, the other provisions remain undisturbed. Here, Nash=92s = will=20 devised all of his property to his (now = divorced) wife,=20 unless: (1) they died at the same time; (2) she failed to survive him by = thirty=20 days; or (3) she predeceased him. Only then would Nash=92s property pass = to=20 Vicki=92s daughter, Shelley Tedder. None of = those three=20 contingencies has occurred.

III

Conclusion

Probate Code=20 section 69 requires that only those provisions in a will that favor a = former=20 spouse be read as if she predeceased the testator. The contingent = bequest to=20 Tedder is not such a provision, and section = 69=92s=20 language does not govern that bequest. Accordingly, Tedder does not take under the will, and Nash=92s = estate=20 passes according to the laws of descent and distribution. See = Tex. Prob. Code = ch. 2. We affirm the = court of=20 appeals=92 judgment. Tex. = R. App. P. 60.2(a).

______________________________

Wallace B.=20 Jefferson

Chief Justice=20

OPINION=20 DELIVERED: April 20, 2007

^[1] = Both Pat and=20 Leroy Nash waived their right to be appointed administrators of = Marvin=92s estate=20 and requested that Russell Nash be appointed as independent=20 administrator.

^[2] = The trial=20 court found that, although a new will had been prepared for Marvin Nash = in 2003,=20 he did not execute it before he died.

^[3] = The court of=20 appeals noted =93a considerable difference between the wording of the = wills in=20 those two cases and the wording of the will in the instant case.=94=20 Calloway, 558 S.W.2d at=20 576-77.