Court of Appeals of Texas, Sixth District, Texarkana
IN RE THE ESTATE OF MAGGIE WILLIAMS TURNER, DECEASED
Submitted: November 15, 2017
Appeal from the 276th District Court Marion County, Texas
Trial Court No. 1500143
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley Justice
McIntosh appeals the trial court's order granting partial
summary judgment in favor of Mildred Bonner, Independent
Executrix of the Estate of Maggie Williams Turner, deceased,
which order declared that McIntosh had no interest in the
real property described in the warranty deed at issue. On
appeal, McIntosh contends Texas law did not permit Turner to
terminate McIntosh's interest in the property. For the
reasons below, we affirm the trial court's judgment.
to the summary judgment record, in 2009, Turner hired James
Finstrom to assist her in conveying to McIntosh
thirteen tracts of real property located in Marion County
(the Property). The conveyance was to take place upon
Turner's death; however, Turner desired to retain, during
her lifetime, all of her then-rights in the Property,
including the power to sell the Property without
McIntosh's permission. In order to carry out Turner's
wishes, Finstrom prepared a warranty deed in which Turner
"reserved during her life, 'the full possession,
benefit and use'" of the Property, "as well as
the rents, issues and profits thereof and the unilateral
power of sale of any or all of the [Property] with or without
the consent of [McIntosh]." Turner executed the warranty
deed on November 13, 2009, and it was filed of record in
Marion County on that same day.
April 2, 2013, Turner conveyed the Property to Maggie Turner,
L.L.C. "The conveyance [was] made in fee
simple." The conveyance was executed by Turner and filed
of record on the same day.
McIntosh's amended petition, she maintained that the
warranty deed's "provision that 'reserved a
unilateral power of sale of any or all of the property with
or without the consent of Grantee, for and during the natural
life of Maggie Turner' is Null and Void because the
provision constitutes an Alienation of Restrain on and or
Violates Texas Property Code § 5.041[.]" McIntosh
continued by alleging these acts were "done as part of a
basically unfair device to achieve an inequitable result[, ]
to wit[, ] divesting [McIntosh] of her property and royalty
interest in the deed dated November 13, 2009[.]"
response to McIntosh's allegations, Bonner filed a motion
for partial summary judgment asking the trial court to enter a
judgment declaring that McIntosh had no interest in the
Property. In her motion, Bonner stated that the 2009 deed was
a Lady Bird or Enhanced Life Estate Deed, explaining that
such "deed is essentially a transfer of real property to
a grantee in which the grantor reserves a life estate and the
lifetime power to convey the property and, thus, unilaterally
terminate the grantee's interest." In other words,
"the grantee receives a contingent remainder
interest." Bonner contends that based on the terms of
the 2009 deed, Turner exercised the power of sale reserved in
her deed by conveying the Property to Maggie Turner, LLC, in
2013. This conveyance terminated McIntosh's interest in
responded to Bonner's motion for partial summary judgment
by objecting to many of McIntosh's summary judgment
exhibits and citing Entergy Gulf States, Inc. v. John
Summers, 282 S.W.3d 433 (Tex. 2009). In her response,
McIntosh also argued that Section 5.041 of the Texas Property
Code prevented Turner from retaining the power of sale that
could terminate McIntosh's interest in the Property.
Section 5.041, entitled "Future Estates, " reads,
"A person may make an inter vivos conveyance of an
estate of freehold or inheritance that commences in the
future, in the same manner as by a will." Tex. Prop.
Code Ann. § 5.041 (West 2014).
17, 2017, the trial court entered its order granting
Bonner's motion for partial summary judgment, declaring
that McIntosh had no interest in the Property. McIntosh
timely filed this appeal, continuing to maintain that Texas
law did not allow Turner to retain the power of sale that
terminated McIntosh's rights to the Property.
review de novo the grant or denial of a motion for summary
judgment "to determine whether a party's right to
prevail is established as a matter of law." Lamar
Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex.
App.-Texarkana 2008, no pet.). In making the required review,
we deem as true all evidence that is favorable to the
nonmovant, we indulge every reasonable inference to be drawn
from the evidence, and we resolve any doubts in the
nonmovant's favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When the trial
court does not specify the basis for its ruling, we must