Appeal from the County Court at Law No. 2 Hays County, Texas
Trial Court Case No. 16-0071-P-B
consists of Justices Lloyd, Landau, and Countiss.
BETH LANDAU JUSTICE
case involves the construction of the last will and testament
and first codicil of Ralph O. Shepley, Jr. At issue is the
precise nature of Larry Brewer and Linda Brewer's right
of first refusal for certain real property. We reverse and
remand the case to the trial court for further proceedings.
and Procedural History A.
O. Shepley, Jr. executed his will in 2012 and his first
codicil to the will in 2014. Shepley also executed a second
codicil, but it is not at issue in this appeal. Shepley died
in 2016. The beneficiary of the will was his daughter, Debra
Moore Fountain. Following Shepley's death, Fountain filed
an application in the trial court to have the will and two
codicils admitted to probate and to be named administrator of
his estate. The trial court appointed Fountain as the sole
administrator of Shepley's estate and granted issuance of
letters of administration.
Shelter of Central Texas ("PAWS") and People for
the Ethical Treatment of Animals ("PETA")
intervened in the probate proceeding. Each nonprofit
charitable organization asserted an interest as charitable
beneficiaries. Larry Brewer also intervened as another
beneficiary of the estate and the trustee of the Ralph O.
Shepley Pet Trust.
The Real Property at Issue
dispute centers on real property. Shepley owned a 191.48-acre
ranch that contains a residence in the northern part of the
property that sits on a small lake. The access road to the
residence is long, and most of the property is accessible
only by an interior road over the dam that creates the lake.
first codicil, Shepley devised the ranch under these terms:
I direct that my real property, consisting of 191.48
acres together with all improvements thereon (the "Real
Property") be sold by [Fountain] and the proceeds
divided into three equal shares and distributed to the
following individuals and entities under the
following conditions and terms:
1. A one-third (1/3) share to DEBRA MOORE FOUNTAIN; provided,
however, if DEBRA MOORE FOUNTAIN fails to survive me, then I
leave this one-third (1/3) share to the descendants of DEBRA
MOORE FOUNTAIN who survive me, per stirpes.
2.A one-third (1/3) share to PAWS . . .; provided that if
PAWS is not in existence at the time of my death, then I
direct that [Fountain] select an organization with the same