Elizabeth Urban v. Kathleen E. Viesca, Guardian of the Estate of Mary Lou Heep Henderson

urban IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-93-128-CV



ELIZABETH URBAN,

APPELLANT

vs.





KATHLEEN E. VIESCA, GUARDIAN OF THE ESTATE OF MARY LOU HEEP HENDERSON,

APPELLEE

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY,

NO. 52,218, HONORABLE GUY HERMAN, JUDGE PRESIDING

Kathleen E. Viesca, guardian of the estate of Mary Lou Heep Henderson, appellee, sued Elizabeth Urban, appellant, Austin Trust Company, and others ⁽¹⁾ seeking a declaratory judgment to construe certain testamentary trust provisions in the will of Herman F. Heep. After a non-jury trial, the court rendered judgment construing the will as Viesca requested. Only Urban appeals this judgment. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Herman F. Heep died on February 10, 1960. His will, dated October 27, 1959, was thereafter admitted to probate. Heep's will established two trusts for his daughter, Mary Lou Heep Henderson, and her issue.

In 1992, Viesca sued the current trustee of the two trusts, Austin Trust Company, for breach of fiduciary duties and for declaratory judgment seeking construction of the will. Henderson's children and grandchildren were also named as defendants. Urban is Henderson's daughter. The trial court severed and abated the suit for breach of fiduciary duty pending resolution of the suit for declaratory judgment.

The trial on the declaratory judgment suit was to the court. All parties to the suit stipulated, and the trial court agreed, that Heep's will was unambiguous and should be construed from its four corners. Therefore, the parties did not offer extrinsic evidence to aid the trial court's construction. The judgment declared, among other things, the standard the trustee should use in making distributions to Henderson. Urban appeals only this portion of the judgment.

The dispute centers around paragraph 4 of Heep's will, which reads as follows:

4. Trust Distributions: During the life of my daughter, the Trustees shall distribute to my daughter such amounts of the Trust Estates of "THE HERMAN F. HEEP TRUST NO. 1" and "THE HERMAN F. HEEP TRUST NO. 2" as are sufficient to provide for her support and maintenance in a standard of living equivalent to that to which she was accustomed at my death, taking into consideration any other sources of support she may have from other sources to the knowledge of the Trustees. Distributions to my daughter shall be made equally from such Trust Estates unless, in the sole discretion of the Trustees, it would be more equitable to make such distributions in some other proportions, in which case such distributions shall be made in the proportions determined by the Trustees. After any distributions to be made to my daughter at that time have been made, the income, if any, remaining in such Trust Estates (and after the death of my daughter, the income of the Trust Estate of each Trust continued as described in Paragraphs 2 and 3) may be accumulated and retained, in whole or in part, or the Trustees, from time to time, may distribute to the following persons such amounts of the following Trust Estates as, in the sole discretion of the Trustees, are in the best interests of such distributees:

(a) In the case of "THE HERMAN F. HEEP TRUST NO. 1" and "THE HERMAN F. HEEP TRUST NO. 2", to any one or more of the issue of my daughter.

(b) In the case of a separate and distinct Trust continued as described in Paragraphs 2 and 3, to any one or more of the person for whom such Trust was continued and such person's issue.

In making distributions to persons other than my daughter, the Trustees shall take into consideration the age of the distributee, the costs of a distributee's comfort, support, maintenance, and education, any income a distributee may have from other sources to the knowledge of the Trustees, and any other factors deemed relevant by the Trustees. Such distributions may be made without regard to any requirement of equality among distributees or to the fact that any ancestor of a distributee is then living or receiving distributions hereunder. Distributions of corpus and accumulated income, but not of current income, made under the provisions of this paragraph shall be subtracted, without interest, from the share, if any, of the recipient (or the persons taking in such recipient's place by right of representation) upon final distribution of the Trust Estate from which such distributions were made unless such person is the only one then entitled to share in such Trust Estate.

(Emphasis added.) The trial court construed the language of the will emphasized above to mean that in making trust distributions to Mary Lou Heep Henderson for the purpose of her support and maintenance, the trustee may only consider "other payments Mary Lou Heep Henderson actually receives for the same purpose (i.e., her support and maintenance) . . . ."

DISCUSSION

Urban brings two points of error complaining of the trial court's judgment. In her first point of error, she complains that the construction of the distribution standard is contrary to Heep's intent and that the evidence is legally or factually insufficient to support the findings of fact and conclusions of law made by the trial court regarding the "sources of support" issue. In her second point of error, Urban complains that the trial court erred in finding that the trustee should not consider the estate-tax consequences of a trust distribution, particularly that the trustee should not consider the value of Henderson's estate, when determining whether to make a distribution to a beneficiary. Urban contends that this construction is contrary to Heep's intent and that the evidence is factually or legally insufficient to support the conclusions of law made by the trial court.

Before discussing the substantive issues presented by Urban, we must address the appropriateness of her points of error challenging the sufficiency of the evidence. Whether a will is ambiguous is a question of law for the court. Nail v. Thompson, 806 S.W.2d 599, 601 (Tex. App.Fort Worth 1991, no writ). When a will is unambiguous, its proper construction is likewise a question of law for the court. Floyd v. Floyd, 813 S.W.2d 758, 760 (Tex. App.El Paso 1991, writ denied); see also El Paso Nat'l Bank v. Shriners Hosp. for Crippled Children, 615 S.W.2d 184, 185-86 (Tex. 1981). Urban's points of error complain of the construction of an unambiguous will. Therefore, only questions of law are presented on appeal.

Conclusions of law are reviewable when attacked as erroneous as a matter of law, but not when attacked on grounds of sufficiency of the evidence to support them, as if they were findings of fact. First Nat'l Bank v. Kinabrew, 589 S.W.2d 137, 146 (Tex. Civ. App.Tyler 1979, writ ref'd n.r.e.); Little v. Linder, 651 S.W.2d 895, 898 (Tex. App.Tyler 1983, writ ref'd n.r.e.). Therefore, to the extent that Urban's points of error can be read as challenging the trial court's construction of Heep's will on the grounds of legal or factual sufficiency of the evidence, they are overruled. ⁽²⁾

We believe, however, that Urban's points of error, read liberally, can also be interpreted as challenging the trial court's construction of Heep's will as being erroneous as a matter of law. Therefore, we will review the trial court's construction of the will.

In construing an unambiguous will, we examine the four corners of the instrument to determine the testator's intent. Henderson v. Parker, 728 S.W.2d 768, 770 (Tex. 1987); El Paso Nat'l Bank, 615 S.W.2d at 185. Our objective is not to determine what the testator meant to write, but rather to discern the meaning of the words that he actually used. Shriner's Hosp. for Crippled Children v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). Where the meaning of those words is clear, we will not speculate that some other result may have been intended. Price v. Austin Nat'l Bank, 522 S.W.2d 725, 731 (Tex. Civ. App.Austin 1975, writ ref'd n.r.e.). The testator's intent must be drawn from the will, not the will from his intent. Huffman v. Huffman, 339 S.W.2d 885, 888 (Tex. 1960).

We presume that the testator placed nothing superfluous or meaningless in his will, and that he intended every word to have a meaning. Johnson v. McLaughlin, 840 S.W.2d 668, 672 (Tex. App.Austin 1992, no writ). We also presume that the same word used more than once in a will was intended to have the same meaning throughout. Weathers v. Robertson, 331 S.W.2d 87, 90 (Tex. Civ. App.Beaumont 1959, writ ref'd n.r.e.). Words of common usage are given their usual and ordinary meaning absent a clear intention to use them otherwise. White v. Taylor, 286 S.W.2d 925, 926 (Tex. 1956); Silverthorn v. Jennings, 620 S.W.2d 894, 897 (Tex. Civ. App.Amarillo 1981, writ ref'd n.r.e.).

In her first point of error, Urban challenges the trial court's construction of the phrase, "taking into consideration any other sources of support she may have from other sources." The trial court concluded that this phrase meant that, before making trust distributions to Henderson, the trustee is obligated and permitted to consider any other payments Henderson actually receives for her support and maintenance from any other person or entity. The trial court further concluded that the trustee was not authorized to consider other income from Henderson's estate, the fair market value of her estate, or the fair market value of another trust of which she is beneficiary, except to the extent that she elects to use those sources for her support or her guardian is ordered by the Probate Court to use them for her support. The court also concluded that other factors set out in Heep's will to be considered for distributions to other beneficiaries are not to be considered in determining distributions to Henderson.

We agree with the trial court's construction of the will. We construe Heep's will to mean that the trustee should consider any other sources of support that Henderson has other than the two trusts established under the will. To "support" means to maintain. Webster's Third New International Dictionary 2297 (1986). We believe Heep intended to maintain Henderson's lifestyle; that is, Heep did not intend that Henderson be forced to expend her own estate for support. For example, Heep directed that the trustee consider Henderson's other sources of "support," while directing the trustee to consider other beneficiaries' sources of "income" in making distributions. Heep did not intend for the terms "income" and "support" to be synonymous, but rather, to have different meanings. "Income" is the broader of the two terms: it can be used for support, but it can also be used for other purposes. We believe that Heep recognized this and intended only those assets that were intended to be used or were actually used for Henderson's support to be considered by the trustee in making distributions to her. We overrule Urban's first point of error. ⁽³⁾

Urban's second point of error complains of the trial court's determination that the trustee could not consider the estate-tax consequences of making distributions to Henderson. Urban asserts that Heep's intent was to minimize his estate taxes. We agree that this was Heep's intent. However, the will directs the trustee to consider only "other sources of support" in making distributions to Henderson. We may not redraft a will, nor vary or add provisions to it, under the guise of construing its language to reflect some presumed intention of the testator. Shriner's Hosp., 610 S.W.2d at 151. There is nothing in the language of Heep's will to support the trustee's consideration of the estate-tax consequences of a distribution to Henderson.

Furthermore, although Heep intended to minimize estate taxes on his estate, Urban's proposed construction is aimed at minimizing Henderson's estate taxes. Any distributions to Henderson from the trusts are to be used for her support and maintenance. It may be presumed, therefore, that such distributions will be expended and will not remain permanently in her estate. We recognize that the distributions to Henderson may have the indirect effect of increasing her estate, because her own assets will not be consumed for her support. However, we do not believe this effect is contrary to Heep's intent. Rather, we believe Heep intended to avoid having assets in his estate taxed and then having those same assets taxed as part of Henderson's estate. We overrule Urban's second point of error.

CONCLUSION

We affirm the judgment of the trial court.

J. Woodfin Jones, Justice

Before Justices Powers, Jones, and Kidd

Affirmed

Filed: November 24, 1993

Do Not Publish

1.   In addition to Austin Trust Company, the defendants included Elizabeth Urban, Kathleen Henderson, and Harriet Heep, daughters of Mary Lou Heep Henderson, as well as nine adult and minor grandchildren of Mary Lou Heep Henderson.

2.   We recognize that the trial court necessarily draws its conclusions of law from the facts as it finds them, and those findings of fact are reviewable for legal and factual sufficiency of the evidence to support them. Kinabrew, 589 S.W.2d at 146. When construing an unambiguous will, the trial court draws its conclusions from the words used in the will. Urban's points of error do not complain that the court based its construction on words not found in Heep's will, or that Heep intended those words to have other than their usual and ordinary meaning, but that the trial court's construction of those words actually in the will, given their usual and ordinary meaning, is erroneous.

3.   The trial court's judgment stating its construction of the will, although phrased slightly differently, is consistent with our conclusion.