San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex.2000) (quoting Shriner's Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147, 151 (Tex.1980)). Such words, โwhether technical or popular,โ are construed โin their plain and usual sense, unless a clear intention to use them in another senseโ is present in the instrument. White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, 926 (1956). Generally, โ[t]he will should be construed so as to give effect to every part of it, if the language is reasonably susceptible of that construction.โ
Sauers v. Stolz, 121 Colo. 456, 218 P.2d 741, 743, states (loc. cit. 742[2]): "[T]he fact of survivorship requires no higher degree of proof than any other fact in the case." See also Prudential Ins. Co. of America v. Spain, 339 Ill.App. 476, 90 N.E.2d 256, 259[2]; White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, 927; 16 Am.Jur. 34, ยงยง 42, 43, and appendix; Annotation 20 A.L.R.2d 235; 25 C.J.S. Death ยง 12, p. 1071. Another contention of defendants, i. e., Mrs. Pierce was not a "surviving spouse," would bring this review to an early termination, plaintiffs conceding she was dead upon arrival at the hospital.
We must determine what Jacob meant by what he actually said, and not by what he should have said, giving the words used in his will their common and ordinary meaning absent a contrary expression in the will. White v. Taylor, 155 Tex. 392, 286 S.W.2d 925 (1956); Allen v. Talley, 949 S.W.2d 59, 60 (Tex.App.-Eastland 1997, pet. denied). If the court can give a "certain or definite legal meaning or interpretation" to the words of an instrument, the instrument is unambiguous; and the court may construe it as a matter of law. Coker, 650 S.W.2d at 393.
Absent such a contrary intent, the probate court properly gave the bequest its common and ordinary meaning. See Shriner's Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 152 (Tex. 1980); White v. Taylor, 155 Tex. 392, 286 S.W.2d 925, 926 (1956). Because the bequest was unambiguous, the construction of the will was a question of law for the probate court, and summary judgment is proper when only a question of law remains.
Indeed, the evidence is sufficient "[i]f there is any evidence of probative force that either party survived the other." White v. Taylor, 155 Tex. 392, 286 S.W.2d 925 (1956) (citations omitted); see also In re Moore's Will, 14 Misc.2d 85, 178 N.Y.S.2d 1000 (N.Y.Sup.Ct. 1958) (evidence is sufficient if inference of survivorship can reasonably and fairly be drawn from it); Prudential Ins. Co. v. Spain, 339 Ill. App. 476, 90 N.E.2d 256 (1950). The evidence in the administrative record satisfies this standard and supports LINA's finding and the court thus accepts that finding. It follows, then, that even if not preempted, Mississippi's Simultaneous Death Law, which, again, would govern only in the event of simultaneous deaths, would not apply and thus would not bear on LINA's distribution of benefits under the policies.
We believe the latter interpretation must prevail. It is a cardinal rule of construction with regard to wills that the intent of the testator controls when it can be ascertained from a reading of the entire will, Carr v. Rogers, 383 S.W.2D 383 (Tex. 1964), and from the words used in making the will, White v. Taylor, 286 S.W.2D 925 (Tex. 1956). There is also a general presumption against intestacy where there is a will, and when a will is open to two constructions, the interpretation that prevents intestacy should be adopted.
This definition is also consistent with holdings of other courts interpreting similar provisions of the original USDA. See, e.g., McCurtis ex rel. Love v. Life Ins. Co. of N. Am., 849 F. Supp. 1141, 1146, nn. 10-11 (S.D.Miss. 1994);Smith v. Smith, 317 S.W.2d 275, 282 (Ark. 1958); White v. Taylor, 286 S.W.2d 925, 928 (Tex. 1956); In re Estate of Villwock, 418 N.W.2d 1, 3 (Wis.Ct.App. 1987). The Court of Appeals in this case reached a similar conclusion by relying upon interpretations of the Uniform Simultaneous Death Act by other courts, but it did not specifically examine the effect that section 31-3-120 has upon the TUSDA's other provisions. Although courts should generally interpret the provisions of the simultaneous death act so as "to make uniform the law in those states which enact it," see Tenn. Code Ann. ยง 31-3-107, we note that such an interpretation is no longer practicable in this regard.
In re Estate of Hogan, 259 Iowa 887, 146 N.W.2d 257, 259. The trial court carefully noted the differences between this case where "survive" alone was used and White v. Taylor, 155 Tex. 392, 286 S.W.2d 925; Hackensack Trust Co. v. Hackensack Hospital Assn., 120 N.J. Eq. 14, 183 A. 723 and In re Estate of Muller, 50 Misc.2d 1068, 272 N.Y.S.2d 231, where additional terms such as "die simultaneously", "common disaster" and "common accident" were used. In each of those cases the primary named beneficiary outlived the testator a short period but was not allowed to take under the testator's will because of the interpretation of the additional phrase.
Section 9 was not adopted in the Uniform Act or by Texas. This Court in White v. Taylor, 155 Tex. 392, 286 S.W.2d 925 (1956), had before it the construction of a will, rather than the simultaneous death act. The will had a provision involving simultaneous death.
Such words, "whether technical or popular," are construed "in their plain and usual sense, unless a clear intention to use them in another sense" is present in the instrument. Stephens , 485 S.W.3d at 916 (quoting White v. Taylor , 155 Tex. 392, 286 S.W.2d 925, 926 (1956) ); seeKnopf , 545 S.W.3d at 545 (citing Bergin v. Bergin , 159 Tex. 83, 315 S.W.2d 943, 946 (1958) ).