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In re Estate of Neal

Court of Appeals of Texas, Second District, Fort Worth

November 9, 2017

IN THE ESTATE OF LARRY RONALD NEAL, DECEASED

         FROM COUNTY COURT AT LAW NO. 2 OF WISE COUNTY TRIAL COURT NO. PR-3670.

          PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          BONNIE SUDDERTH, CHIEF JUSTICE.

         I. Introduction

         Larry Ronald Neal executed a will in which he bequeathed his personal property to his niece, Valorie Jean White. That much is undisputed. The determinative question in this appeal is whether under the will, Larry also devised his real property to Valorie. We conclude that he did not. We therefore reverse the part of the trial court's final judgment that awarded Larry's real property to Valorie and determined that no part of Larry's estate passed by intestacy, and we render judgment that Larry's real property passed through intestacy to his heirs.

         II. Facts

         Larry died in 2014. Upon his death, Appellee Gary Neal, Larry's brother and his estate's executor, filed an application to probate Larry's 2009 will. The will contained the following language:

I, Larry Ronald Neal, . . . do hereby make . . . this to be my Last Will and Testament . . . .
Article I
I direct my Executor to pay my judicially enforceable debts, funeral expenses[, ] and the administrative expenses of my estate as soon after my death as practicable. . . .
Article II
I do give and bequeath to my niece, Valorie Jean (Neal) White, all my personal effects and all my tangible personal property, including automobiles, hangars, aircraft, fly-drive vehicles, patents, companies, and all other things owned by me at the time of my death, including cash on hand in bank accounts in my own name, or companies['] names, or securities, or other intangibles.
. . . .
Article IV
I hereby grant to my Executor the continuing absolute, discretionary power to deal with any property, real or personal, held in my estate or in any trust, as freely as I might in the handling of my own affairs. Such power may be exercised independently and without the prior or subsequent approval of any court or judicial authority, and no person dealing with the Executor shall be required to inquire into the propriety of any of their actions. . . . I hereby grant to my Executor the following specific powers and authority in addition to . . . powers conferred by law:
A[.] To make distributions in cash or specific property, real or personal . . . .
B. To sell, transfer[, ] or convey, at public or private sale[, ] . . . any property, real or personal, . . . constituting a part or all of my estate . . . .
C. To compromise and settle claims in favor of or against my estate.
D. To hold and exercise any and all powers . . . conferred by law.

         In September 2015, the trial court signed an order that admitted the will to probate, appointed Gary as independent executor, and directed the court's clerk to issue letters testamentary.

         The next month, Appellant Lori Neal Freitag, Larry's daughter, filed a petition for a declaratory judgment under chapter 37 of the Texas Civil Practice and Remedies Code.[2] In her pleading, Lori contended that Article II of Larry's will entitled Valorie to receive Larry's personal property only. Lori argued that the will did not dispose of Larry's real property and that the real property therefore passed by intestacy to her and to Larry's two sons. She also pleaded that Gary, as independent executor, was taking the opposite position.

         Gary filed an answer to Lori's petition and, through a counterclaim, also sought declaratory relief. He argued that because Article II of the will gave Valorie "all other things owned" by Larry, the will entitled Valorie to receive Larry's real property. He also contended that Article IV supported his interpretation of Article II because Article IV gave him the authority to sell and manage "real or personal" property. He asserted that ...


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