in the Estate of Mildred Ozella Favor Pursley A.K.A. Mildred F. Pursley
13-14-00667-CV
| Tex. App. | May 21, 2015Background
- This case concerns the construction of a 1975 contractual will distributing the estate equally among three children and any after-born children.
- Rocky Pursley challenges the equal-distribution reading and argues for a narrower interpretation of “any child or children.”
- The probate court held the 1975 Will is contractual and mandates equal shares to all children; it imposed a constructive trust to enforce that provision.
- Appellees Harold Pursley, Jr. and Rolland Pursley contend that “any child or children” means all children, including after-born ones, and that the surviving spouse could not defeat that class gift.
- Rocky waived certain appellate arguments, including ambiguity, and the sur-reply urges affirmance of the trial court’s ruling.
- The court ultimately affirms the trial court’s decision enforcing the class gift and equal distribution under the 1975 Will.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 1975 Will a contractual will binding the spouses to equal shares? | Pursley brothers argue yes, the language binds. | Rocky contends language allows discretionary post-death allocation. | Yes, the 1975 Will is contractual and requires equal shares. |
| Does Sinnott v. Gidney favor equal treatment of heirs in this case? | Sinnott supports equal treatment of heirs of the same class. | Rocky claims Sinnott is inapplicable. | Yes, Sinnott supports equal treatment of all class members. |
| Do after-born children fall within the class defined by “any child or children”? | “Any child or children” includes all children, including after-born ones. | Term should be read restrictively to the named individuals. | Yes, includes Harold Jr., Rolland, Rocky, and any after-born children. |
| Did Rocky waive the right to appeal ambiguity? | Appellees argue Rocky acquiesced in a legal-theory posture. | Rocky contends ambiguity could be raised on appeal. | Rocky waived the ambiguity issue. |
| Should the phrase “any child or children” be given its technical meaning? | Technical meaning favors inclusion of all children. | Dictionary meaning should control. | Technical meaning favored; includes all children. |
Key Cases Cited
- Sinnott v. Gidney, 322 S.W.2d 507 (Tex. 1959) (favors equal treatment of heirs in doubt about will meaning)
- Wiemers v. Wiemers, 683 S.W.2d 355 (Tex. 1984) (surviving party cannot disavow contract after other party’s performance)
- Murphy v. Honeycutt, 199 S.W.2d 298 (Tex.Civ.App.—Texarkana 1946) (time of vesting, construction of will language to ascertain testator’s intent)
- Boone v. Stone, 142 S.W.2d 936 (Tex.Civ.App.—Fort Worth 1940) (intent to provide for all children under “any child or children”)
- Guilliams v. Koonsman, 279 S.W.2d 579 (Tex. 1955) (exchanges ‘child or children’ with related terms; equity in class gifts)
- Sullivan v. Skinner, 66 S.W.2d 680 (Tex.Civ.App. 1902) (remainder to children in context of life estate to daughter)