in the Estate of Larry Ronald Neal
02-16-00381-CV
| Tex. App. | Jan 4, 2018Background
- Decedent Larry Neal executed a 2009 will; Article II bequeathed to his niece Valorie "all my personal effects and all my tangible personal property, including automobiles, hangars, aircraft... and all other things owned by me at the time of my death, including cash on hand in bank accounts... or securities, or other intangibles."
- Article IV granted the independent executor broad powers over "any property, real or personal," including power to sell or distribute estate property.
- Gary Neal (brother, executor) sought a declaration that the will devised both real and personal property to Valorie; Lori Neal Freitag (daughter) argued Article II disposed only of personal property and real property passed by intestacy to heirs.
- Trial court ruled for Gary, awarding all real and personal property to Valorie; Lori appealed.
- The court of appeals reviewed will construction de novo and considered whether Article II unambiguously devised real property or only personal property.
Issues
| Issue | Plaintiff's Argument (Freitag) | Defendant's Argument (Gary) | Held |
|---|---|---|---|
| Whether Article II devised real property to Valorie | Article II refers only to personal property (personal effects, tangible personal property, intangibles) so real property was not disposed and passes by intestacy | "All other things owned" and Article IV's reference to "real or personal" indicate intent to dispose of entire estate, including real property | Court held Article II unambiguously disposed only of personal property; real property passed by intestacy |
| Whether presumption against partial intestacy requires construing will to dispose of entire estate | Presumption is not a substitute for clear will language; court must honor expressed limits | Presumption against partial intestacy should favor construing will to avoid intestacy and award real property to legatee | Court applied presumption but held it yields to clear will language; did not rewrite will to avoid partial intestacy |
| Whether Article IV's executor powers show intent to devise real property | Executor powers are consistent with administration and do not prove testamentary disposition of realty | Executor authority over "real or personal" shows decedent intended real property to pass under will | Court held Article IV only authorized executor action and showed decedent knew distinction between real and personal property, so it does not evidence a devise of real property |
| Whether reference to "hangars" indicates intent to devise real property | Hangars listed among "tangible personal property" so no showing decedent intended to include other realty | Mentioning hangars suggests some real property was intended to pass | Court held hangars were listed as personal property; lease showed hangars could be removable or not owned as realty, so they do not convert Article II into a devise of real property |
Key Cases Cited
- Jinkins v. Jinkins, 522 S.W.3d 771 (Tex. App.—Houston [1st Dist.] 2017) (review of will construction is de novo)
- Steger v. Muenster Drilling Co., 134 S.W.3d 359 (Tex. App.—Fort Worth 2003) (principles for construing wills; harmonize all parts)
- In re Estate of Slaughter, 305 S.W.3d 804 (Tex. App.—Texarkana 2010) (appellate remedy when trial court misconstructs unambiguous will)
- Shriner's Hosp. for Crippled Children of Tex. v. Stahl, 610 S.W.2d 147 (Tex. 1980) (presumption against partial intestacy exists but yields to testator's intent)
- Harrington v. Walker, 829 S.W.2d 935 (Tex. App.—Fort Worth 1992) (discussing strength and limits of presumption against partial intestacy)
- Freeman v. Banks, 91 S.W.2d 1078 (Tex. Civ. App.—Fort Worth 1936) (executor's authority and possession over estate property, including property passing by intestacy)
- Norris v. Thomas, 215 S.W.3d 851 (Tex. 2007) (characteristics distinguishing fixtures/realty from removable personal property)