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Brewer v. Debra Moore Fountain

Court of Appeals of Texas, First District

August 13, 2019

LARRY BREWER, Appellant
v.
DEBRA MOORE FOUNTAIN, PETA FOUNDATION, AND PAWS SHELTER OF CENTRAL TEXAS, Appellees

          On Appeal from the County Court at Law No. 2 Hays County, Texas Trial Court Case No. 16-0071-P-B

          Panel consists of Justices Lloyd, Landau, and Countiss.

          OPINION

          SARAH BETH LANDAU JUSTICE

         This case involves the construction of the last will and testament and first codicil of Ralph O. Shepley, Jr.[1] At issue is the precise nature of Larry Brewer and Linda Brewer's right of first refusal for certain real property.[2] We reverse and remand the case to the trial court for further proceedings.

         Factual and Procedural History A. Background

         Ralph 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.

         Paws 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.[3]

         B. The Real Property at Issue

         This 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.

         In the 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 ...

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