BONNIE SUDDERTH, JUSTICE

M. Keith Branyon, Colin L. Murchison, Jackson Walker L.L.P., Fort Worth, TX, for Appellant.

Josh Norrell, Norrell Law Office, Weatherford, TX, for Appellee.

PANEL: WALKER, GABRIEL, and SUDDERTH, JJ.

OPINION

BONNIE SUDDERTH, JUSTICE

I. Introduction

In two issues, appellants Norma Anderson, Paula Gilleland, Gerald Don Marrs, Joann Dycus, and Vicki George appeal the trial court's judgment for appellee Elise Kinler, arguing that the trial court erred by denying their motion for summary judgment and by granting Kinler's motion for summary judgment. We reverse.

II. Factual and Procedural Background

Article III of Glenda Rhoades's will, which she signed on October 4, 2007, made the following bequests:

• the real property constituting her residential homestead to her father, Glen Rhoades,

• all of her personal property to her father,

• "all of the rest of [her] estate," to her father, but if he predeceased her, to Elise Kinler, but if Kinler should predecease her, to Kinler's son, Michael Kinler, and

• "any other property that has not been disposed of under any other provision of this Will" to her heirs at law.

Rhoades also named Kinler as the independent executor of her will. See Tex. Est. Code Ann. § 401.001(a) (West 2014). Rhoades died on August 1, 2013, her father having predeceased her.

After Kinler filed an application to probate Rhoades's will in the Parker County Court, seeking the issuance of letters testamentary, Anderson filed an opposition to the appointment of Kinler as independent executor and an application for the appointment of a temporary administrator. See id . §§ 55.001, 256.052, 301.052, 301.101, 452.002 (West 2014 & Supp. 2016). Anderson also filed a motion to transfer the case to the county court at law in Parker County, which was granted on October 2, 2013.

The will was initially ordered admitted to probate on December 12, 2013, but that order was subsequently set aside in a January 20, 2014 agreed order that also revoked the letters testamentary that had been issued to Kinler. An order was then issued appointing Kinler as temporary administrator with bond; letters of temporary administration were issued to her on May 19, 2014.Both sides filed petitions for declaratory relief. Appellants sought a declaration that Rhoades's estate passed to Appellants under the residuary clause because the distributions to Rhoades's father failed. Kinler requested a declaration that the entire estate passed to Kinler because Rhoades's father predeceased her. Both Appellants and Kinler pleaded for the recovery of their respective attorney's fees.

Appellants and Kinler also filed competing motions for summary judgment, both claiming the unambiguous terms of the will justified a judgment in their favor on their respective declaratory-judgment claims. See Tex. R. Civ. P. 166a(c). Appellants also moved for summary judgment on their claim for attorney's fees, attaching summary judgment evidence proving up the requested amount of fees. Kinler did not seek the recovery of attorney's fees in her motion. On January 28, 2015, the trial court entered an order granting Kinler's summary judgment motion and denying Appellants'.

On March 24, 2015, Appellants filed a notice of nonsuit regarding their September 2013 contest. Approximately a week later, the trial court issued a new order admitting the will to probate, and two weeks after that, the trial court granted letters testamentary to Kinler. The trial court then granted the parties' agreed motion to dismiss their attorney's fee claims and transferred the case back to the county court on October 27, 2015. This appeal followed.

III. Discussion

In their first issue, Appellants argue that the trial court erred by granting Kinler's motion for summary judgment because although Kinler claimed that the will was unambiguous, "numerous edits, deletions and modifications" were required to secure the estate for her. In their second issue, Appellants argue that the trial court erred by denying their motion for summary judgment because if all of the language in the unambiguous will is harmonized with no edits, deletions, or modifications, the entire estate must pass to them.

A. Jurisdiction

Before we can reach the merits of either issue, we must address Appellants' contention that the trial court lacked jurisdiction to enter the summary judgment. Appellants argue that because at the time the trial court granted Kinler's summary judgment motion the order admitting the will to probate had been set aside, any decision with regard to the will's meaning was not ripe for consideration, and the trial court's summary judgment was merely an advisory opinion. Kinler responds that the will could be construed by declaratory judgment without being admitted to probate and that Appellants waived their ripeness complaint by filing and arguing their own motion for summary judgment during the same time period.

First, a defect in subject matter jurisdiction can be raised at any time, may be raised for the first time on appeal, and may not be waived by the parties, Tex. Ass'n of Bus. v. Tex. Air. Control Bd. , 852 S.W.2d 440, 445 (Tex.1993), and " ‘[r]ipeness is an element of subject matter jurisdiction.’ " Levatte v. City of Wichita Falls , 144 S.W.3d 218, 222 (Tex.App.–Fort Worth 2004, no pet.) (quoting Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex.1998), cert. denied , 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999) ). Therefore, Appellants could not waive their ripeness complaint.

Having reviewed the admittedly sparse case law regarding whether a will must be admitted to probate before it becomes ripe for construction under the Uniform Declaratory Judgments Act (UDJA), this appears to be a case of first impression for our court. However, it does appear that in practice, Texas courts have construed wills under the UDJA before, during, and after admitting the will to probate.

Although not argued or decided based upon issues of ripeness or subject matter jurisdiction, the San Antonio court, in Harkins v. Crews , has most directly addressed the issue of whether a will can be construed under the UDJA before being admitted to probate. 907 S.W.2d 51, 55–57 (Tex.App.–San Antonio 1995, writ denied). Harkins involved three wills—dated in 1983, 1987, and 1990, respectively—and five codicils. Id . at 54. After the 1990 will and codicils were offered for probate by decedent's second wife, her daughter, her grandson, and the attorney who drafted the 1990 will, the decedent's children by his first wife opposed the application, applied for probate of the 1983 will and codicils, and sought a declaratory judgment invalidating the 1987 will and codicils. Id . at 54. The jury found that the 1987 and 1990 wills and codicils were executed when the decedent lacked testamentary capacity and that the 1990 will and codicils were procured by undue influence. Id . Thereafter, the trial court admitted the 1983 will to probate, denied probate of the 1990 will and codicils, and declared the 1987 will and codicils invalid. Id . at 54–55.

On appeal, the appellants complained that the trial court had erred by rendering a declaratory judgment invalidating the 1987 will and codicils and argued that Texas law precluded the use of a declaratory judgment action to determine the validity of a will that had not been offered for probate. Id . at 55. Our sister court disagreed, observing that the trial court's action in rendering the declaratory judgment as to the invalidity of the 1987 will and codicils permitted a final determination of the rights of the parties from which the ultimate disposition of the decedent's estate could be determined, thus furthering the public policy of promoting judicial economy. Id. at 56–57. In reaching its conclusion, the court noted that the plain language of section 37.004 of the UDJA did not indicate that a will whose validity is being challenged must be one that has been offered or admitted to probate. Id. at 55–57. Compare Tex. Est. Code Ann. § 256.001 (West 2014) (stating that a will is not effective to prove title to, or the right to possession of, any property disposed of by the will until the will is admitted to probate), with id. § 101.001(a)(1), (3) (West 2014) (providing that if a person dies leaving a lawful will, all of the person's estate that is devised by the will vests immediately in the devisees and all of the person's estate that is not devised by the will vests immediately in the person's heirs at law).

Section 37.004 provides, in pertinent part, that a person interested under a will "may have determined any question of construction or validity arising under the instrument ... and obtain a declaration of rights, status, or other legal relations thereunder." Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2015). Section 37.005 further provides that a "person interested" through an executor, administrator, devisee, legatee, heir, or next of kin in the administration of a decedent's estate

may have a declaration of rights or legal relations in respect to the ... estate:

(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;

(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity;

(3) to determine any question arising in the administration of the ... estate, including questions of construction of wills and other writings; or

(4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts.

Id. § 37.005 (West 2015).

As the supreme court has reminded us, the UDJA is a "remedial" statute with its stated purpose " ‘to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.’ " Bonham State Bank v. Beadle , 907 S.W.2d 465, 467 (Tex.1995) (citing Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1986)). And to that end, the statute expressly provides that it "is to be liberally construed." Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (West 2015). As observed in Harkins, there is no limitation in the UDJA's plain language requiring a will's admission to probate before the statute may be invoked. 907 S.W.2d at 57.

Appellants cite to Cowan v. Cowan , 254 S.W.2d 862, 865 (Tex.Civ.App.–Amarillo 1952, no writ), as authority for their position that the trial court's interpretation and construction of the will was not ripe for consideration because the will was not admitted into probate at the time summary judgment was considered and granted. In Cowan , two siblings filed a declaratory judgment action to ascertain whether their mother possessed testamentary capacity necessary to the making of a will after they learned that she had named their brother as the principal beneficiary, rather than dividing the property among all of her children. Id. at 862–63. Responding to their brother's plea to the jurisdiction, in which he argued that since their mother was still alive, there was no justiciable controversy upon which to base a declaratory judgment action, the siblings argued that a controversy existed as to the validity of the will at a time when the issue could be determined "during the lifetime of all of the parties concerned." Id. at 863. The two siblings argued that because their mother was still living, she could "appear in court and thus assist the court and jury in determining her mental status, both now and at the time she executed the purported will." Id .

The court in Cowan concluded that the trial court lacked jurisdiction, holding,

[S]ince Mrs. Cowan is not dead, there are no heirs and there is no will. Until she dies, the appellants have no interest in their mother's will. A will not having been presented to the court for probate, the Probate Court has no jurisdiction over it, even under the Uniform Declaratory Judgments Act, and neither the Probate Court nor the District Court[—]since a justiciable issue does not exist[—]is empowered to determine the validity of the instrument.

Id. at 865.

We reject Appellants' reliance on Cowan to support their argument that the will must be admitted to probate before any declaratory action would be ripe for consideration by the trial court, for two reasons. First, unlike the mother in Cowan , Rhoades is deceased. Cf. id. While Appellants recognize this, they point us to specific portions of the Cowan opinion that they contend support their position that even in circumstances where the maker of a will is dead, a trial court would lack jurisdiction until the will was admitted to probate. The passage to which Appellants refer us states,

Until the purported will has been offered for probate, the Probate Court does not have the power, even though the maker is dead, to entertain a declaratory judgment for the purpose of obtaining an interpretation of the instrument. Poore v. Poore , 201 N.C. 791, 161 S.E. 532 [ (1931) ] ; Love v. Rennie , 254 Ala. 382, 48 So.2d 458 [ (1950) ].

In Anderson, Actions for Declaratory Judgments, p. 1297, it is said:

‘So a declaratory or other action will not lie during the life of the testator to compel the surrender and cancellation of a will in the custody and control of a third party defendant on the ground that the testator did not possess testamentary capacity at the time of making and executing of the will. The court cannot in a declaratory action answer a purported question, even on an agreed statement of facts as to the existence, revocation, validity or construction of a will, for example, as to whether a joint and mutual will of husband and wife was revoked by the husband's marriage after the wife's death where the will had never been probated .’

Id. (emphasis added).

Despite the inclusion of this passage in the opinion, the facts in Cowan involved the maker of a will who was alive at the time the declaratory judgment was sought. Id. Indeed, much of the language in Cowan focuses on this very point.See id.Because the consequences of the death of a testator were not germane to the case, the court's musings in Cowan regarding such a circumstance could not have been part of the case's holding. At best, the comments to which Appellants direct us are obiter dicta and are not authoritative for the proposition they urge here. SeeGowin v. Gowin , 264 S.W. 529, 539–40 (Tex.Civ.App.–Fort Worth 1924), aff'd , 292 S.W. 211 (Tex.Comm'n App. 1927, judgm't affirmed).

Perhaps more to the point, however, is that the court in Cowan did not hold that the probate court lacked jurisdiction because the will was not admitted to probate but rather because the will had not be presented to the court for probate . 254 S.W.2d at 865. Here, the will was presented to the court for probate and, for a period of time prior to the granting of summary judgment, the will had actually been admitted to probate. But the order admitting the will to probate and appointing Kinler as Independent Executor was set aside by an agreed order following a motion for new trial—a motion that challenged not the admission of the will into probate, but the permanent appointment of Kinler as independent executor thereunder. After being presented to the court for probate, the will here (as opposed to Kinler's appointment) was never contested, and its temporary hiatus from probate appears to be one of inadvertence that was corrected during the pendency of this appeal, not as the result of any challenge to it or to its initial admission to probate.

While we do not find that Cowan supports the proposition Appellants urge, we do find the history and analysis used in Cowan instructive in this case:

The [UDJA] does not, however, create any new substantive rights, nor was it so intended.... The Act is remedial in nature and procedural in character. It does not create jurisdiction in the courts over subjects in which they had no jurisdiction before the passage of the Act. It has only changed the method of exercising existing jurisdiction. Thus, a court cannot assume jurisdiction of any cause of action under the authority of the declaratory procedure where it could not have assumed jurisdiction before its enactment. Kaufman & Ruderman, Inc. v. Cohn & Rosenberger, Inc., D.C. , 86 F.Supp. 867 [ (1949) ].

As stated by Prof. Hodges in Revised Vol. 8, Vernon's Annotated Civil Statutes, p. XI,

‘The Act does not authorize or permit an action for the mere purpose of declaring legal principles or of establishing uncertain facts. It is clear that a real controversy is necessary, that parties having conflicting legal interests are essential; that the judgment must be one which will effectively and practically settle conflicts of such legal interests of the parties.’

The Act does not contemplate declarations upon matters where the interest of the plaintiff is contingent upon the occurrence of some future event. 16 Am.Jur. 293. Before the [UDJA] may be invoked, there must be present a justiciable issue; that is, the cause of action must relate to matters which are within the jurisdiction of the court. There must be a protectable right, not a future or speculative right.

Id. at 864–65.

In applying Cowan 's history and analysis of the UDJA vis-à -vis the justiciability of matters involving rights under a will, we see that the declaratory action sought here did rise to the level of a justiciable dispute. It did not seek to merely declare legal principles or establish uncertain facts. Nor was the declaration sought speculative or contingent upon the occurrence of some future event. At the time the trial court considered and ruled upon the summary judgment motions, the parties were actively engaged in a real controversy with conflicting interests, and the objective sought by the declaratory judgment ruling was to resolve the conflict and end the controversy. Thus, the matters presented to the trial court were ripe and justiciable. And, notwithstanding the disposition on appeal, the trial court's decision did advance the resolution of the conflict between the parties.

Because the temporary removal of the will from probate did not render the trial court's decision advisory or moot under the circumstances presented here, we must reach the merits of Appellants' complaints.

B. Summary Judgment

In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex.2009). We review a summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex.2010). Summary judgment is proper in cases in which the parties do not dispute the relevant facts. Havlen v. McDougall , 22 S.W.3d 343, 345 (Tex.2000) ; seeG & H Towing Co. v. Magee , 347 S.W.3d 293, 296–97 (Tex.2011) ("The purpose of a summary judgment is to ‘provide a method of summarily terminating a case when it clearly appears that only a question of law is involved and that there is no genuine issue of [material] fact.’ ") (quoting Gaines v. Hamman , 163 Tex. 618, 358 S.W.2d 557, 563 (1962) ). When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both parties' summary judgment evidence and determine all questions presented. Mann Frankfort , 289 S.W.3d at 848. The reviewing court should render the judgment that the trial court should have rendered. SeeMyrad Props., Inc. v. LaSalle Bank Nat'l Ass'n , 300 S.W.3d 746, 753 (Tex.2009) ; Mann Frankfort , 289 S.W.3d at 848.

As this court has previously stated with regard to will construction,

The cardinal rule for construing a will is that the testator's intent must be ascertained by looking at the language and provisions of the instrument as a whole, as set forth within its four corners. The question is not what the testator intended to write, but the meaning of the words he actually used. Terms used are to be given their plain, ordinary, and generally accepted meanings unless the instrument itself shows them to have been used in a technical or different sense.

If possible, all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testator's intent. We must presume that the testator placed nothing meaningless or superfluous in the instrument. Where practicable, a latter clause in a will must be deemed to affirm, not to contradict, an earlier clause in the same will.

Whether a will is ambiguous is a question of law for the court. A term is not ambiguous merely because of a simple lack of clarity or because the parties proffer different interpretations of a term. Rather, a will is ambiguous only

when the application of established rules of construction leave its terms susceptible to more than one reasonable meaning. If the court can give a certain or definite legal meaning or interpretation to the words used, the will is unambiguous, and the court should construe it as a matter of law.

Steger v. Muenster Drilling Co. , 134 S.W.3d 359, 372–73 (Tex.App.–Fort Worth 2003, pet. denied) (citations omitted).

Appellants contend that the trial court misconstrued article III of the will.

Article III of the will states as follows:

III.

DISPOSITION OF ESTATE

A. I give all of my interest in the real property and the improvements thereto which constitute my residential homestead at the time of my death to Glen Rhoades in equal shares.

B. I give, devise and bequeath all of my personal property to Glen Rhoades in equal shares.

C. I give, devise and bequeath all of the rest of my estate of whatsoever kind and wheresoever situated as follows to Glen Rhoades. In the event that Glen Rhoades should predecease me, his portion shall be distributed to ELISE KINLER for the benefit of Elise and Michael Kinler. In the event that Elise Kinler should predecease me, then said portion shall be distributed to Michael Kinler.

D. Any other property of mine that has not been disposed of under any other provision of this Will shall go and be distributed to my heirs-at-law. Their identity and respective shares shall be determined in all respects as if my death had occurred immediately following the happening of the event requiring such distribution, and according to the laws of Texas then in force governing the distribution of the estate of an intestate.

The parties agree that Glen Rhoades predeceased his daughter and that the will is unambiguous.

Kinler moved for summary judgment, arguing that "his portion" under Paragraph C meant Glen's entire "portion" under Article III because the entire estate could be categorized as either real or personal property under Paragraphs A and B and because in Article V, the testator again referenced Glen's "portion" to be used to create a trust for him if he was alive at the time of her death. In their competing motion for summary judgment, Appellants argued that all of Rhoades's property passed to them under the anti-lapse statute in estates code section 255.152 because there was no language in Paragraph A or B that stated what was to occur in the event that Glen predeceased his daughter. They further argued that under the estates code, the bequests in Paragraphs A, B, and C passed to the "residuary estate" in accordance with Paragraph D's plain meaning because the limiting language "as follows" in Paragraph C did not describe any property.

On appeal, however, Appellants offer an alternative argument that they argue harmonizes all four paragraphs in Article III:

[t]he only logical interpretation ... is that the bequests in paragraphs A and B lapse, causing those bequests (the Decedent's "residential homestead" and personal property) to fall into paragraph D—the residuary clause. Paragraph C would then pass all of Decedent's other real property to Appellee. No other interpretation of paragraph D satisfies the "harmony" requirement articulated in Steger .

In support of this argument, Appellants point out that, according to the Inventory filed in the probate proceeding, Rhoades's estate contains property that would fall under Paragraph C, a parcel of non-homestead real property that was not covered by Paragraph A or B. We agree with this interpretation of the will.

Estates code section 255.152, "Failure of Devise; Effect on Residuary Estate," provides in subsection (a), "Except as provided by Sections 255.153 and 255.154,^[]if a devise, other than a residuary devise, fails for any reason, the devise becomes a part of the residuary estate." Tex. Est. Code Ann. § 255.152 (West 2014). This section applies unless the testator's will provides otherwise. Id. § 255.151 (West 2014).

Paragraph A gave "equal shares" of Rhoades's residential homestead to her father. This clause lapsed because Glen predeceased her, and the residential homestead fell into the residuary per estates code section 255.152(a). Seeid. § 255.152(a). Paragraph B gave "equal shares" of all of Rhoades's personal property to her father, and this clause lapsed too because of Glen's having predeceased her, dropping all of Rhoades's personal property into the residuary. See id.

Paragraph C gave Rhoades's father "all of the rest of [her] estate of whatsoever kind and wheresoever situated as follows" unless he predeceased her. While the clause does not specify what property would pass under this paragraph, after subtracting the residential homestead real estate and all of her personal property, the only property remaining would be non-homestead real estate. SeeSan Antonio Area Found. v. Lang , 35 S.W.3d 636, 640 (Tex.2000) (explaining the distinction between real property—"land and generally whatever is erected or growing upon or affixed to land"—and personal property—"defined broadly to include everything that is subject to ownership not falling under the definition of real estate"); see also Tex. Est. Code Ann. § 22.028 (West 2014) (defining "personal property" as including an interest in goods, money, a chose in action, evidence of a debt, and a real chattel), § 22.030 (West 2014) (defining "real property" as including estates and interests in land, whether corporeal, incorporeal, legal, or equitable but excluding a real chattel). Included in the summary judgment evidence was the inventory prepared by Kinler as temporary administrator, which shows a parcel of real property designated as "Parcel #2." "Parcel #2" appears to be the only non-residential homestead real property and non-personal property remaining in Rhoades's estate, but to the extent that Rhoades owned other non-residential homestead real estate at the time of her death, that property would be conveyed pursuant to Paragraph C as well.

We hold that because Rhoades's father predeceased her, the gifts attempted under Paragraphs A and B failed and that property fell into the residuary clause in Paragraph D. However, since Paragraph C expressly provided that if Glen predeceased Rhoades, "his portion" should be distributed to Kinler, the property bequeathed under Paragraph C did not lapse, but rather passed to Kinler. To hold otherwise would require editing, deleting, modifying, or ignoring altogether some of the paragraphs at issue, which we may not do.SeeSteger , 134 S.W.3d at 372–73 (setting out rules of will construction).For these reasons, we sustain Appellants' first issue and part of their second issue regarding the denial of their motion for summary judgment.

IV. Conclusion

Having sustained Appellants' first issue and part of their second issue, we reverse the trial court's judgment and remand the case to the trial court to enter a declaratory judgment consistent this determination and our holding.

WALKER, J., filed a concurring and dissenting opinion.

CONCURRINGAND DISSENTING OPINION

SUE WALKER, Justice, Concurring and Dissenting

I. INTRODUCTION

This is an appeal from the trial court's summary judgment construing the will of the decedent, Glenda Rhoades. Because the Majority Opinion fails to properly apply the rules of will construction to Rhoades's will and construes Rhoades's will contrary to her expressed intent, I dissent.

II. BACKGROUND

Rhoades signed a will in which she devised all of her interest in her residential homestead, all of her personal property, and all of the rest of her estate to her father Glen; however, if her father predeceased her—as is the case here—she provided that "his portion" was to be distributed to Appellee Elise Kinler for the benefit of Kinler and Kinler's son. Rhoades then provided that any other property that had not been disposed of under any other provision of her will should be distributed to her heirs-at-law, who are Appellants Norma Anderson, Paula Gilleland, Gerald Don Marrs, Joann Dycus, and Vicki George.

Rhoades's will provided for an independent administration and named Kinler as the independent executor. After Rhoades's death, Kinler filed an application to probate Rhoades's will. Appellants filed a petition for declaratory judgment, seeking a declaration that Rhoades's estate passed to Appellants under the "residuary clause" because the distributions to Rhoades's father had lapsed. Kinler likewise filed a declaratory-judgment petition, requesting a declaration that the entire estate passed to her based on the construction of the will as a whole. Kinler and Appellants filed competing motions for summary judgment, as well as responses. The trial court signed an order granting Kinler's summary-judgment motion and denying Appellants' summary-judgment motion. Appellants perfected this appeal and raise two issues: the trial court erred by granting Kinler's motion for summary judgment and erred by denying Appellants' motion for summary judgment.

III. THE TRIAL COURT DID NOT ERR BY GRANTING KINLER'S MOTION FOR SUMMARY JUDGMENT AND BY DENYING APPELLANTS' MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Absent ambiguity, the construction of a will is a matter of law.Penland v. Agnich , 940 S.W.2d 324, 326 (Tex.App.–Dallas 1997, writ denied). Accordingly, we review de novo the question of the construction of an unambiguous will. SeeHarris v. Hines , 137 S.W.3d 898, 904 (Tex.App.–Texarkana 2004, no pet.). In construing a will, our objective is to discern and effectuate the testatrix's intent as reflected in the instrument as a whole, giving effect to all its parts. Hysaw v. Dawkins , 483 S.W.3d 1, 7 (Tex.2016) ; San Antonio Area Found. v. Lang , 35 S.W.3d 636, 639 (Tex.2000) ; Gee v. Read, 606 S.W.2d 677, 680 (Tex.1980). The intent must be drawn from the will, not the will from the intent. Hysaw , 483 S.W.3d at 7. Thus, we focus not on what the testatrix intended to write but on the meaning of the words she actually used. Id. Ascertaining a testatrix's intent from the four corners of a will requires careful examination of the words used. Id. If possible, all parts of the will must be harmonized, and every sentence, clause, and word must be considered in ascertaining the testatrix's intent. SeeWelch v. Straach , 531 S.W.2d 319, 322 (Tex.1975) ; Steger v. Muenster Drilling Co. , 134 S.W.3d 359, 372 (Tex.App.–Fort Worth 2003, pet. denied). We presume that the testatrix placed nothing superfluous or meaningless in her will and that she intended every word to play a part in the disposition of her property. SeeSteger , 134 S.W.3d at 372 ; Cooley v. Williams , 31 S.W.3d 810, 812 (Tex.App.–Houston [1st Dist.] 2000, no pet.).

B. Rhoades's Will

Article III and Article V of Rhoades's will provide, in pertinent part, as follows.

III.

DISPOSITION OF ESTATE

A. I give all of my interest in the real property and the improvements thereto which constitute my residential homestead at the time of my death to Glen Rhoades in equal shares.

B. I give, devise[,] and bequeath all of my personal property to Glen Rhoades in equal shares.

C. I give, devise[,] and bequeath all of the rest of my estate of whatsoever kind and wheresoever situated as follows to Glen Rhoades. In the event that Glen Rhoades should predecease me, his portion shall be distributed to ELISE KINLER for the benefit of Elise and Michael Kinler. In the event that Elise Kinler should predecease me, then said portion shall be distributed to Michael Kinler.

D. Any other property of mine that has not been disposed of under any other provision of this Will shall go and be distributed to my heirs-at-law. Their identity and respective shares shall be determined in all respects as if my death had occurred immediately following the happening of the event requiring such distribution, and according to the laws of Texas then in force governing the distribution of the estate of an intestate.

....

V.

CONTINGENT TRUSTS

....

TRUST FOR GLEN RHOADES: In the even[t] that GLEN RHOADES is, at the time of my death, a resident of a residential care home, nursing home, assisted living facility or similar facility, if and in that event I direct that his portion as described in Article III above shall be distributed to my Trustee, IN TRUST NEVERTHELESS, for the

uses and purposes hereinafter set forth. My Trustee shall not distribute such property outright, but instead my Trustee shall hold all of such property in separate trust for the supplemental needs of GLEN RHOADES as follows:

A. This trust shall be titled The Glen Rhoades Supplemental Needs Trust. I direct that the trustee shall provide for the supplemental needs of Glen Rhoades without interfering with or reducing the benefits Glen Rhoades would be entitled to receive from any state or federal agency and to maximize the benefits available to Glen Rhoades. I intend that the assets remaining in trust for Glen Rhoades be used to supplement other benefits that Glen Rhoades might be entitled to receive and explicitly not be used for Glen Rhoades's basic support needs until the death of Glen Rhoades.

B. Upon the death of Glen Rhoades, the remainder, if any, shall be distributed to Elise Kinler. In the event that Elise Kinler has predecease[d] the final distribution, said remainder shall be distributed to Michael Kinler. [Emphasis added.]

C. The Parties' Positions

1. Appellants' Position

Appellants assert that because Kinler is not mentioned in Article III, Paragraphs A or B, the gifts to Glen identified in those paragraphs "lapsed." Accordingly, Appellants argue that these lapsed gifts passed to them under the "residuary clause" set forth in Article III, Paragraph D. Appellants contend that "[t]he issue before this Court is to determine which paragraph—Article III C, or Article III D—is the true residuary clause in Decedent's Will." Appellants admittedly exclude Article V from their analysis of Rhoades's will.

2. Kinler's Position

Kinler asserts that "this is not a complicated will dispute." She argues that the will named one beneficiary, Rhoades's father Glen, and named her as the first alternate or contingent beneficiary. According to Kinler, Glen was to receive all of Rhoades's estate as his "bucket," and then his "bucket" was to pass to Kinler if he predeceased Rhoades. Kinler points out that Article III, Paragraph C gifts to her Glen's "portion" after identifying what constituted Glen's portion in Paragraphs A, B, and C. She further contends that Article V specifically explains that Glen's "portion" means his entire collective interest. Kinler argues that applying the rules of will construction and construing the will as a whole, she is entitled to all of Rhoades's interest in the residential homestead (Paragraph A), all of Rhoades's personal property (Paragraph B), and all of the rest of Rhoades's estate (Paragraph C) because these gifts—which are Glen's portion under Rhoades's will—passed over to her as the first named contingent beneficiary of Glen's portion if Glen predeceased Rhoades. Kinler contends that Article III, Paragraph D addresses disposition of Rhoades's estate, including Glen's portion, in the event the contingent beneficiaries named in the preceding paragraphs predeceased Rhoades; because she, Kinler, is a contingent beneficiary who did not predecease Rhoades, Kinler asserts Paragraph D was not triggered.

D. De Novo Construction of Rhoades's Will Applying the Rules of Will Construction

1. The Will is Construed as a Whole to Effectuate the Testatrix's Intent

The cardinal rule of will construction is that the entire will is examined to determine the testatrix's intent. SeeHysaw , 483 S.W.3d at 7 ("Today, we reaffirm our commitment to a holistic approach aimed at ascertaining intent from all words and all parts of the conveying instrument"); Heller v. Heller , 114 Tex. 401, 410, 269 S.W. 771, 774 (1925) ("[A]n elementary rule of construction with reference to wills is that the testator's intention is to be collected from the whole of the will taken together, and not from detached portions."); see alsoLang , 35 S.W.3d at 639 ; Bergin v. Bergin , 159 Tex. 83, 89, 315 S.W.2d 943, 946–47 (1958) ; Disabled Am. Veterans v. Mullin , 773 S.W.2d 408, 410 (Tex.App.–San Antonio 1989, no writ) ; George W. Thompson, 2 Construction and Interpretation of Wills § 41 (1928) (describing "the first rule of construction" with respect to wills as ascertaining the intention of the testator from the four corners of the will).

An examination of Rhoades's entire will shows her intent was (1) to leave her entire estate to her father Glen, either directly as set forth in Article III or by means of a trust as set forth in Article V if Glen resided in a nursing home at the time of her death, and (2) to leave Glen's portion of her estate, i.e., her entire estate as set forth in Article III, to Kinler if Glen predeceased her or to leave pursuant to Article V the entire balance remaining in Glen's trust to Kinler upon Glen's death. Thus, Rhoades's desired testamentary scheme, as ascertained from her entire will, was to name her father Glen as the primary beneficiary of her entire estate, to name Kinler the first alternate or contingent beneficiary, to name Kinler's son as the second alternate or contingent beneficiary, and to provide that any undisposed-of property would be distributed to her heirs-at-law, i.e., according to the laws of intestacy.

The Majority Opinion does not examine Rhoades's entire will, the four-corners of the will, to determine her intent or her testamentary scheme as a whole. Contrary to this cardinal rule of will construction, as urged by Appellants, the Majority Opinion views Article III in a vacuum without any effort to reconcile it with Rhoades's intent as expressed in Article V—that "his [Glen's] portion" of her estate includes all of the property identified in Article III: the real property and improvements constituting Rhoades's residential homestead, Rhoades's personal property, and all of the rest of Rhoades's estate of whatsoever kind and wheresoever situated. But seeHysaw , 483 S.W.3d at 7 (requiring intent to be determined from examination of all parts of will); Lang , 35 S.W.3d at 639 (same); Bergin , 159 Tex. at 89, 315 S.W.2d at 946–47 (same); Heller , 114 Tex. at 410, 269 S.W. at 774 (same). To the extent Article III, Paragraph C standing alone could somehow possibly be construed as limiting Glen's portion to only "the rest of [Rhoades's] estate of whatsoever kind and wheresoever situated," that possible stand-alone construction of Paragraph C cannot destroy Rhoades's explicit expressed intention set forth in the remaining portion of her will (Article V) as to what constitutes Glen's portion of her estate. See, e.g. , Bergin , 159 Tex. at 89, 315 S.W.2d at 947 ("We have examined the will in the light of these cardinal rules and hold that the first paragraph of the will, which, standing alone would leave an absolute fee title to respondent, cannot destroy the effect of the remaining portions of the will, which plainly provide that respondent shall receive the benefits of the stock only until she remarries or dies."). The Majority Opinion fails to give effect to Rhoades's intent expressed in her will that her father Glen, as his portion of her estate, take all of the real property and improvements constituting her residential homestead, her personal property, and all of the rest of her estate of whatsoever kind and wheresoever situated either directly or via a trust if he resided in a nursing home at the time of her death and that if Glen predeceased her, his portion be given to Kinler.

2. Same Term Is to be Given Same Meaning

"When the testator uses the same words in different parts of the will with reference to the same subject matter, we presume he intended the words to have the same meaning unless the context indicates the testator used the words in a different sense." Eisen v. Capital One, Nat'l Ass'n , 232 S.W.3d 309, 313 (Tex.App.–Beaumont 2007, pet. denied) ; see alsoWeathers v. Robertson , 331 S.W.2d 87, 90 (Tex.Civ.App.–Beaumont 1959, writ ref'd n.r.e.) (stating that a term used in a will should be construed as having the same meaning throughout the will); 2 Construction and Interpretation of Wills § 78 (explaining that "words or phrases occurring more than once in a will, or the same words used in different parts of the same will, are presumptively used in the same sense and are to receive the same construction").

The second sentence of Paragraph C of Article III provides, "In the event that Glen Rhoades should predecease me, his portion shall be distributed to ELISE KINLER for the benefit of Elise and Michael Kinler." [Emphasis added.] Rhoades's intent in using the term "his portion" in Paragraph C of Article III is clarified by her use of the exact same term in Article V. The term "his portion" as used in Article V straightforwardly encompasses as Glen's portion of Rhoades's estate, all of Rhoades's "interest in the real property and the improvements thereto which constitute my residential homestead[,]" "all of [Rhoades's] personal property,]" and "all of the rest of [Rhoades's] estate of whatsoever kind and wheresoever situated." The term "his portion" in Paragraph C of Article III should be given the same meaning that same term has by express definition in Article V. SeeEisen , 232 S.W.3d at 314 (construing the term "beneficiary" in both Article VI and Article IX of testator's will to have the same definition pursuant to the definition testator provided for the term in Article VI).

The Majority Opinion, however, wholly ignores Article V and fails to apply the rule of will construction that the same term used in the same will should be given the same meaning. Consequently, under the Majority Opinion's holding, the term "his portion" has two completely different meanings in the will:

• In Article III: per the Majority Opinion's holding, "his portion" consists solely of the property described in Paragraph C in Article III (i.e., a parcel of non-homestead real property).

• In Article V (ignored by the Majority Opinion): per the express language of the will, "his portion" consists of all property devised to Glen as described in Article III (i.e., all of Rhoades's interest in the real property and improvements thereto constituting her residential homestead, all of her personal property, and all of the rest of her estate of whatsoever kind and wheresoever situated).

But see id. (holding that when testator uses same words in different parts of same will, words presumed to have same meaning); Weathers , 331 S.W.2d at 90 (stating that term used in will should be construed as having same meaning throughout will).

3. A Will's Internal Formatting Cannot Thwart the Testatrix's Intent

"[A] will is not to be read so as to contradict itself if its apparent contradictions can be reconciled by bringing the various clauses together and deducing a consistent interpretation from the whole context." Jones' Unknown Heirs v. Dorchester , 224 S.W. 596, 601 (Tex.Civ.App.–Amarillo 1920, writ dism'd w.o.j.) ; see alsoHysaw , 483 S.W.3d at 13 (explaining that "apparent inconsistencies or contradictions must be harmonized, to the extent possible, by construing the instrument as a whole"). Appellants' position, adopted by the Majority Opinion, stems primarily, if not exclusively, from the labeling of the paragraphs in Article III of Rhoades's will as Paragraphs A, B, C, and D. That is, Appellants' position is not based on the actual words of Rhoades's will but on the internal Paragraph A, B, C, and D formatting of Rhoades's will. Based on the will's internal formatting's use of the letters A, B, C, and D, Appellants treat each of these paragraphs as separate stand-alone provisions. But reading the actual words of these four paragraphs together, it is clear that Rhoades intended to name her father Glen as the will's beneficiary and to name Kinler as the first alternate or contingent beneficiary. Simply removing the internal A, B, C, and D paragraph formatting makes this obvious:

I give all of my interest in the real property and the improvements thereto which constitute my residential homestead at the time of my death to Glen Rhoades in equal shares. I give, devise[,] and bequeath all of my personal property to Glen Rhoades in equal shares. I give, devise[,] and bequeath all of the rest of my estate of whatsoever kind and wheresoever situated as follows to Glen Rhoades. In the event that Glen Rhoades should predecease me, his portion shall be distributed to ELISE KINLER for the benefit of Elise and Michael Kinler. In the event that Elise Kinler should predecease me, then said portion shall be distributed to Michael Kinler. Any other property of mine that has not been disposed of under any other provision of this Will shall go and be distributed to my heirs-at-law. Their

identity and respective shares shall be determined in all respects as if my death had occurred immediately following the happening of the event requiring such distribution, and according to the laws of Texas then in force governing the distribution of the estate of an intestate. [Emphasis added.]

SeeWelch , 531 S.W.2d at 322 ("[I]t is always permissible, in fact proper, to look beyond mere grammatical form to what may be termed the internal evidence of the writer's intention."); cf.Dorchester , 224 S.W. at 602 (construing seventh paragraph of will by looking to eighth and ninth paragraphs of will). By adopting Appellants' contention that Paragraphs A, B, C, and D of Article III are standalone provisions that cannot be read in connection with one another, the Majority Opinion improperly elevates grammatical form over testamentary-scheme substance. SeeMcMurray v. Stanley , 69 Tex. 227, 230, 6 S.W. 412, 413 (1887) ("In construing the will, all its provisions should be looked to, for the purpose of ascertaining what the real intention of the testatrix was; and ... any particular paragraph of the will which, considered alone, would indicate a contrary intent, must yield to the intention manifested by the whole instrument.").

4. Contingent Beneficiaries Take Over Residuary Beneficiaries

Article III of Rhoades's will sets forth a list of contingent beneficiaries—Elise Kinler first and then Michael Kinler—who would take Glen's portion of her estate in the event Glen predeceased her. Notably, Rhoades utilized the same disposition for the remainder of the trust in Article V. Because Rhoades listed contingent beneficiaries for Glen's portion of the estate and because the named contingent beneficiaries did not predecease Rhoades, there are no failed or lapsed gifts; thus, contrary to Appellants' position, the Anti-Lapse Statute does not apply. SeeRossi v. Rossi , 448 S.W.2d 162, 164 (Tex.Civ.App.–Houston [14th Dist.] 1969, writ ref'd n.r.e.) ("The [Anti-Lapse Statute] is simply inapplicable where there is a valid testamentary disposition as a gift over and a legatee or devisee has predeceased the testator."). And this construction of Article III as containing no failed or lapsed gifts does not render Paragraph D meaningless, as the Majority Opinion states in a footnote. Paragraph D has a purpose: it acts as the residuary clause and provides for the disposition of the estate if the named contingent beneficiaries predeceased Rhoades. Based on the facts here, Paragraph D was not triggered because at least one of the named contingent beneficiaries—Kinler—was alive at the time of Rhoades's death. Simply because a provision is not triggered does not render it "meaningless." Cf.In re M.M.M. , 428 S.W.3d 389, 396 (Tex.App.–Houston [14th Dist.] 2014, pet. denied) (holding statutory provision was not meaningless because it might rarely come into play; as long as there was any event that would trigger the need for the provision, it was not meaningless).

The mere fact that Article III, Paragraph D sets forth a residuary clause in favor of Appellants, Rhoades's heirs-at-law, does not detract from Rhoades's designation of contingent beneficiaries. See, e.g. , Calloway v. Estate of Gasser , 558 S.W.2d 571, 576 (Tex.Civ.App.–Tyler 1977, writ ref'd n.r.e.) (holding that when testator designated husband as primary beneficiary and others as contingent beneficiaries in event husband predeceased her and couple then divorced, contingent beneficiaries were entitled to take rather than residuary beneficiaries—even though husband was not dead but instead was only statutorily prohibited from taking—because by providing contingent beneficiaries, will reflected testator's intent that they take over residuary beneficiaries). Nor can a residuary clause require or place "a construction on a previous clause in order to create a residue" as Appellants and the Majority Opinion do here. See 2 Construction and Interpretation of Wills § 90. Appellants and the Majority Opinion construe the provisions of Article III in order to create the existence of a residuary clause under Paragraph D, claiming otherwise Paragraph D would be superfluous, instead of looking to Rhoades's intent that Kinler as a contingent beneficiary takes Glen's portion, regardless of whether that taking left anything for the residuary beneficiaries. SeeCalloway , 558 S.W.2d at 576.

IV. CONCLUSION

Because, as set forth above, applying the well-settled rules of will construction to Rhoades's will, Kinler established as a matter of law that in the event that Glen predeceased Rhoades, Rhoades intended for Kinler to receive "his portion"—which consisted of the real property and improvements thereon comprising Rhoades's residential homestead, Rhoades's personal property, and any other property owned by Rhoades at her death—I would hold that the trial court did not err by granting Kinler's motion for summary judgment on her request for a declaration that Rhoades's entire estate passed to her, and I would overrule Appellants' first issue. Similarly, I would hold that the trial court did not err by denying Appellants' cross-motion for summary judgment; I would overrule Appellants' second issue. Accordingly, I would affirm the trial court's order granting the summary-judgment motion filed by Kinler and denying the cross-motion for summary judgment filed by Appellants. Because the Majority Opinion holds otherwise, I respectfully dissent.

APPENDIX A???????

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