in the Estate of Lucy Pugh Martin

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-05-466 CV ____________________

IN THE ESTATE OF LUCY PUGH MARTIN

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On Appeal from the County Court of Jefferson County at Law No. 1 Jefferson County, Texas Trial Cause No. 86016

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MEMORANDUM OPINION  

Lawrence Norman appeals a summary judgment granted in favor of Willie Pearl Davis in this will contest proceeding. The trial court held the document offered by Norman did not operate as a will because it lacked testamentary intent. In three issues presented, Norman argues there is a genuine issue of material fact regarding testamentary intent, it was error for the trial court to remove the issue of testamentary intent from the jury, and the second will was properly attested. We reverse and remand for further proceedings.

Lucy Pugh Martin, the testatrix, executed a will dated December 5, 1994, by which she gave, devised, and bequeathed her entire estate to Davis, her niece, and appointed Davis as executor. After the will was admitted to probate, Norman filed an application to set aside the trial court's probate order, alleging a will dated May 21, 2003 revoked the December 5, 1994 will. Norman submitted a document entitled "A LIVING WILL" that read:

This is to advise you that I, Lucy P Martin, have executed a Living Will in which I have expressed my wishes to die with dignity should I become terminally and mentally and/or physically incapable of providing to discontinue medical care.

I wish my loved ones to avoid the agony of seeing me linger near death. I also want to eliminate unnecessary medial expense so my heirs can benefit from my estate.

I request that you honor my Living Will as best you can according to your own medical and professional ethics, the laws of the State of Texas, County of Jefferson, and your best judgment in cooperation with those I have designated to make the decision to terminate care as named below:

A. I give, devise and bequeath my Antique Bedroom Set . . . to A.J. Moore and Mary Moore . . . .

B. I give, devise and bequeath my real property, the apartment house (a duplex) . . . and the rest of my furniture and appliances to Lawrence Norman . . ..

C. I give, devise and bequeath my 24 Karat gold Dish set, and my home . . . the garage apartment (one unit) . . . to Lawrence Norman. . . .

THIS IS A NEW AND REVISED WILL THAT WILL REPLACE ANY OTHER WILL DATED BEFORE THIS DATE OF MAY 21, 2003.

The document was signed by Martin, by Beverly and Dana Molo as witnesses, and a notary public.

Davis filed a motion for traditional summary judgment alleging the May 21, 2003 document lacked testamentary intent because the document constituted an advance directive under sections 166.002(1)(A) and 166.031(1) of the Health and Safety Code. See Tex. Health & Safety Code Ann. § 166.002(1)(A), 166.031(1) (Vernon 2001). Davis also alleged the document lacked the attestation of two credible witnesses. In response, Norman argued the language used in the document to "give, devise and bequeath" indicated Martin intended to make specific bequeaths of property and the document stated it was a new and revised will that replaced any other will. Norman submitted evidence through the affidavit of one of the witnesses which recites that Martin declared the document to be her will and both witnesses signed the document in Martin's presence. The trial court granted the motion for summary judgment, expressly finding that the May 21, 2003 document lacked testamentary intent.

We first determine whether we have jurisdiction to review this appeal. Davis contends Norman failed to perfect his appeal because he filed a motion for new trial on July 29, 2005 and the notice of appeal was filed on October 20, 2005, more than ninety days after the summary judgment was signed. See Tex. R. App. P. 26.1(a)(1). Davis further argues Norman is not entitled to an extension of time to file his notice of appeal because he did not request the extension within fifteen days after the deadline for filing the notice of appeal. See Tex. R. App. P. 26.3(a). Davis contends this Court's October 10, 2005 order issued in response to Hurricane Rita did not extend Norman's deadline for filing a timely notice of appeal in the trial court. We have previously resolved this particular issue. On February 9, 2006, we issued an order in this case extending the time in which Norman could file a motion for extension of time to file notice of appeal and his notice of appeal. We also deemed the notice of appeal timely filed. Davis has not persuaded this Court to vacate our order. We have jurisdiction to decide this appeal.

Next, we determine whether the trial court erred in granting summary judgment based upon lack of testamentary intent. We review the trial court's grant of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)). In reviewing the trial court's grant of a traditional motion for summary judgment, we must determine whether the movant carried its burden to establish that there existed no genuine issue of material fact and that it was entitled to judgment as a matter of law. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001) (citing Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991)). All evidence favorable to the non-movant must be taken as true, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Knott, 128 S.W.3d at 215 (citing Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)).

Section 59 of the Texas Probate Code states a will must (1) be in writing, (2) signed by the testator in person, (3) and if not wholly in the handwriting of the testator, be attested by two or more credible witnesses above the age of fourteen years who shall subscribe their names thereto in their own handwriting in the testator's presence. Tex. Prob. Code Ann. § 59 (Vernon 2003). To be effective as a will, the document must be executed with testamentary intent. In re Estate of Graham, 69 S.W.3d 598, 608 (Tex. App.--Corpus Christi 2001, no pet.) (citing Hinson v. Hinson, 154 Tex. 561, 280 S.W.2d 731, 733 (1955)). "Testamentary intent 'does not depend upon the maker's realization that he is making a will, or upon his designation of the instrument as a will, but upon his intention to create a revocable disposition of his property to take effect after his death.'" In re Estate of Schiwetz, 102 S.W.3d 355, 363 (Tex. App.--Corpus Christi 2003, pet. denied) (quoting Hinson, 280 S.W.2d at 733). In order for an instrument to possess the requisite testamentary intent, the testator must have intended that the very document at issue be the instrument that actually makes the disposition of the testator's estate. Graham, 69 S.W.3d at 608 (citing Hinson, 280 S.W.2d at 735-36).

In determining the testator's intent, we look to the language within the four corners of the instrument. Henderson v. Parker, 728 S.W.2d 768, 770 (Tex. 1987) (citing Shriner's Hosp. for Crippled Children of Texas v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980)). If the testator's intent can be ascertained from the language of the instrument, any particular paragraph which standing alone would indicate a different intention must yield to the intention manifested by the whole instrument. Pine v. Salzer, 824 S.W.2d 779, 782 (Tex. App.--Houston [1st Dist.] 1992, no writ) (citing Leopold v. Sochat, 303 S.W.2d 840, 843 (Tex. Civ. App.--Fort Worth 1957, writ ref'd n.r.e.)).  

Davis contends the document entitled "A Living Will" is an advance directive regarding end of life medical care. However, a complete review of the document indicates Martin may have intended to execute her instructions regarding the disposition of certain property after her death. Davis argues the document merely expresses an intent to dispose of property. See Graham, 69 S.W.3d at 608 (citing Hinson, 280 S.W.2d at 735-36) ("A document that merely evidences an intention to dispose of the property is not a will."). The document states, "I give, devise and bequeath" various property to A.J. Moore, Mary Moore, and Lawrence Norman. The words "give, devise and bequeath," are generally used to express testamentary intent. See Rekdahl v. Long, 417 S.W.2d 387, 394 (Tex. 1967) (the words give, bequeath, and devise are words of gift); see also Preston v. Preston, 617 S.W.2d 841, 844 (Tex. Civ. App.--Amarillo 1981, writ ref'd n.r.e.) (the words give, devise, and bequeath are an expression of testamentary intent). The presence of these words raises a fact issue as to whether Martin intended to create a testamentary disposition of the property listed. The document also provides, "THIS IS A NEW AND REVISED WILL THAT WILL REPLACE ANY OTHER WILL DATED BEFORE THIS DATE[,]" which appears to indicate an intent that this document operate as a will. This language expresses more than an intent to dispose of property; it expresses an intent to create a revocable disposition of the listed property to take effect after Martin's death.

Other summary judgment evidence on the issue of testamentary intent includes the affidavit of Beverly Molo stating that Martin knew the document was a will and would replace any existing wills. Martin requested that Beverly find someone to type her will and provided Beverly with handwritten instructions. Beverly gave the instructions to the notary public, who typed the instructions. Beverly further explained that she, Dana Molo, and the notary public went to Martin's home where they all signed the document in Martin's presence. Beverly further recalled Martin stating she wanted Norman to have the items indicated in the document and did not want to give the property to her niece. We hold there is sufficient summary judgment evidence raising a fact issue regarding testamentary intent to preclude the summary judgment. Davis failed to establish she was entitled to judgment as a matter of law. Issue one is sustained. We reverse the judgment and remand to the trial court for further proceedings.

REVERSED AND REMANDED.

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CHARLES KREGER

Justice

Submitted March 2, 2006

Opinion Delivered June 29, 2006

Before Gaultney, Kreger and Horton, JJ.