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HESTATEBARNES - CATLIN ESTATEDISTRICTRESPONSE TO PETITION FOR Powered By Docstoc
					                                 NO. 10-0454

                   IN THE SUPREME COURT OF TEXAS

________________________________________________________________________

                      Estate of Jerry Don Catlin, Deceased

________________________________________________________________________

              Douglas Glen Barnes, Jimmy Barnes, and Diane King,
                                 Respondents

________________________________________________________________________

                 RESPONSE TO PETITION FOR REVIEW
_______________________________________________________________________

                  LaFONT, FORMBY & HAMILTON, L.L.P.
                              P. O. Box 1510
                       Plainview, Texas 79073-1510
                         Telephone: 806-293-5361
                         Facsimile: 806-293-5366

                                Brent Hamilton
                         Texas State Bar No. 00796696


                     ATTORNEYS FOR RESPONDENTS
                                 NO. 10-0454

                   IN THE SUPREME COURT OF TEXAS

________________________________________________________________________

                      Estate of Jerry Don Catlin, Deceased

________________________________________________________________________

              Douglas Glen Barnes, Jimmy Barnes, and Diane King,
                                 Respondents

________________________________________________________________________

                 RESPONSE TO PETITION FOR REVIEW
________________________________________________________________________

                  LaFONT, FORMBY & HAMILTON, L.L.P.
                              P. O. Box 1510
                       Plainview, Texas 79073-1510
                         Telephone: 806-293-5361
                         Facsimile: 806-293-5366

                                Brent Hamilton
                         Texas State Bar No. 00796696


                     ATTORNEYS FOR RESPONDENTS
                                            TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................................................i

INDEX OF AUTHORITIES...................................................................................................ii

STATEMENT OF THE CASE..................................................................................................2

STATEMENT OF FACTS...................................................................................................3

SUMMARY OF REPLY ARGUMENT...................................................................................9

RESPONSIVE ARGUMENTS AND AUTHORITIES..........................................................10

CONCLUSION AND PRAYER............................................................................................17

CERTIFICATE OF SERVICE...............................................................................................18

INDEX TO APPENDIX..........................................................................................................19




                                                   -i-
                                         INDEX OF AUTHORITIES
CASES:

    Bailey v. Bailey, 71 S.W.2d 162, 165
    (Tex. App.-Amarillo 1943, no writ)...........................................................................10

    Bittner v. Bittner, 45 S.W.2d 148, 152
    (Comm. App. 1932, Jdgmt. adopted)............................................................................16

    Brown v. Traylor, 210 S.W.3d 648
    (Tex. App.-Houston [1st Dist.] 2006)...........................................................................14

    Browning-Ferris, Inc. v. Reyna,
    865 S.W.2d 925, 928 (Tex. 1993)................................................................................11

    Bryant v. Hamlin, 373 S.W.2d 837, 840
    (Tex. Civ. App.-Dallas 1963, writ refused n.r.e.)......................................................12

    Cason v. Taylor, 51 S.W.3d 397, 407
    (Tex. App.-Waco 2001, no pet.)..................................................................................12

    Coulson v. Sheppard, 700 S.W.2d 336, 337
    (Tex. App.-Corpus Christi 1985, no writ)....................................................................10

    Griffin v. Griffin, Tex. App. LEXIS 3720
    (Tex. App.-Dallas 2007)........................................................................................12, 14

    Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503
    (Tex. App.-Waco 1997, writ denied)...........................................................................11

    In Re Estate of Capps, 154 S.W.3d 242, 245
    (Tex. App.-Texarkana 2005)...........................................................................10, 12, 14

    In Re Estate of Jones, 197 S.W.3d 894
    (Tex. App.-Beaumont 2006).......................................................................................14

    In Re Estate of Turner, 265 S.W.3d 709
    (Tex. App.-Eastland 2008)..........................................................................................14

                                                       -ii-
                                  INDEX OF AUTHORITIES (cont’d.)


         Neiast v. Brauckmuller, 401 S.W.2d 113, 116
         (Civ. App.-Houston, 1967, no writ)..............................................................................16

         Pine v. Salzer, 824 S.W.2d 779, 782
         (Tex. App.-Houston [1st Dist.] 1992, no writ)............................................................15

       Rekdahl                 v.         Long,            417     S.W.2d             387,          389         (Tex.
1967).....................................................15

         Shriner’s Hosp. etc. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980)..................................16

         Sorrel v. Sorrel, 1 S.W.3d 867, 870-871
         (Tex. App.-Corpus Christi 1999, no writ)....................................................................17

         Sparkman v. Massies Estate, 297 S.W.3d 308
         (Tex. Civ. App.-Dallas 1956, writ refused n.r.e.).......................................................12


STATUTES:

         TEX. PROB. CODE, § 84 (Vernon, 2007)......................................................................10

         TEX. PROB. CODE, § 85 (Vernon, 2007)......................................................................10

         TEX. PROB. CODE, § 88 (Vernon, 2007).....................................................................10

         TEX. PROP. CODE, § 112.052 (Vernon, 2007).......................................................9, 17

         TEX. PROP. CODE, § 112.053 (Vernon, 2007).........................................................9, 17
                                     -iii-
                              RECORD REFERENCES

      The record on appeal consists of three volumes of the Clerk’s Record (“CR”) and four

volumes of the Reporter’s Record (“RR”). One volume of the Reporter’s Record consists

of Exhibits. For example, a reference fo the Reporter’s Record will be (RR.V.5, page 245)

or (RR.V.5, Ex. 3). References to the Clerk’s Record will be (CR 002) making reference to

the bates stamp contained on the Clerk’s Record.




                                           1
                                       NO. 10-0454

                        IN THE SUPREME COURT OF TEXAS

________________________________________________________________________

                           Estate of Jerry Don Catlin, Deceased

________________________________________________________________________

                  Douglas Glen Barnes, Jimmy Barnes, and Diane King,
                                     Respondents

_______________________________________________________________________

                 RESPONSE TO PETITION FOR REVIEW
________________________________________________________________________


TO THE HONORABLE SUPREME COURT OF TEXAS:

       In accordance with Texas Rule of Appellate Procedure 53.3, Respondent has not

included a List of Parties and Counsel, Statement of the Case, Statement of the Issues

Presented, or Statement of Jurisdiction, except in those instances where the Respondent is

dissatisfied with statements made by Petitioner in the Petition for Review.

                             STATEMENT OF THE CASE

NATURE OF THE CASE: Will Contest

ISSUES PRESENTED:

       Issue No. 1: Does the record contain sufficient evidence to justify the Court’s
                    admitting the Will to probate?




                                             2
       Issue No. 2: Does the record contain sufficient evidence to justify the Court’s
                    judgment that the Testamentary Trust contained within the Will did not
                    terminate prior to Catlin’s death?


                                 STATEMENT OF FACTS

       Catlin died on December 4, 2007. (CR, pgs. 9 & 346). After the death of Catlin,

Respondents began searching for the original of Catlin’s Will. Respondents searched in safe

deposit boxes, in Catlin’s office, and his home. Respondents were unable to locate the

original Will of Catlin, and other important documents, including the stock certificates for

his business. (CR, pg. 348). (RR, Vol. 3, pgs. 22-24, 66-72, & 91-92). Respondent, Diane

King, located a copy of the Will offered in the trial of this case as Exhibit 1, in a briefcase

located in Catlin’s home. The briefcase also contained copies of other important documents.

(CR, pg. 348). (RR, Vol. 3, pgs. 69-72 & 91-92).

       Respondent, Douglas Glen Barnes (“Barnes”), made Application to Probate the copy

of the Will. (CR, pg. 9). Petitioner filed his opposition to the Application to Probate the

copy of the Will. (CR, pg. 37).

       Respondents are Barnes, Jimmy Barnes, and Diane King. Respondents are the

biological children of Doris Catlin and the stepchildren of Catlin. (CR, pgs. 12 & 269). The

Petitioner, Jerry Don Catlin, II, is the biological son of Catlin. (CR, pg. 12). Petitioner, from

1984, until the time of Catlin’s death, was estranged from his biological father. Petitioner

only had limited contact with his father during that period of time which Petitioner

characterized as two visits at his father’s home and yearly telephone conversations. (RR,


                                               3
Vol. 3, pgs. 130-140). Catlin had great affection for Respondents and expressed that he

considered them his children. (RR, Vol. 3, pgs. 15 & 16). Doris and Jerry Don Catlin were

married in 1985. (CR, pg. 346).

       The copy of the Will admitted to probate was prepared by Honorable Ed Self (“Self”),

242nd District Court Judge. (RR, Vol. 2, pg. 18). Catlin and Doris Catlin approached Self

while Self was in his private law practice and requested Self to draft Wills for each of them.

(CR, pg. 346). (RR, Vol. 2, pgs. 16-22). Prior to Self drafting a Will for Catlin, Self and

Catlin had discussions regarding his desires. Catlin expressed to Self his affection for the

Respondents and his lack of affection for the Petitioner. Catlin instructed Self that he desired

to leave only ten percent of his Estate to Petitioner. (CR, pg. 347). (RR, Vol. 2, pgs. 20-23).

In accordance with Catlin’s instructions, Self drafted and prepared the Will. Self also

prepared a near identical Will for Doris Catlin. Self included, in both Wills, a Testamentary

Trust in a form obtained from trusted estate attorney Lucian Morehead, former law partner

of Self. (RR, Vol. 2, pgs. 20-24). On January 23, 1993, Catlin and Doris Catlin came to the

office of Self and executed their Wills. The Will was signed by Catlin in the presence of

witnesses Self and Veronica Vera. Catlin also signed the self-proving Affidavit after it was

read aloud to him by notary, Mary Anna Self. Self and Veronica Vera witnessed the self-

proving Affidavit portion of the Will and Mary Anna Self notarized the Will in the presence

of Catlin, Self, and Veronica Vera. After the Will was signed, Catlin was provided with an

exact duplicate of the executed Will which was stamped with the word “Copy,” on the upper

righthand corner of the first page. (CR, pg. 347). (RR, Vol. 2, pgs. 24-27, 33-40, & 44-52).

                                               4
       At trial, Self, Veronica Vera, and Mary Anna Self identified the copy of the Will

introduced into evidence as Trial Exhibit 1 as a true and correct copy of the Last Will and

Testament of Jerry Don Catlin, Deceased. The Will was executed by Catlin when he was of

sound mind and over the age of 18 years. (CR, pg. 347). (RR, Vol. 2, pgs. 24-27, 33-40, &

44-52). At the time of the execution of the Will until the time of Catlin’s death, Catlin

continued to feel and express a lack of affection for the Petitioner. (RR, Vol. 3, pgs. 44-47).

       From the time of the execution of the Will, until the time of Catlin’s death, Catlin

expressed trust and affection for the Respondents. (CR, pg. 347). (RR, Vol. 3, pgs. 25-27

& 47-63). After Doris Catlin died on May 27, 2006, her Will was probated and her property

passed in trust to Respondents. At the time of Doris Catlin’s death and the probate of her

Will, Graddy Tunnell (“Tunnell”) acted as Catlin’s attorney. After the death of Doris Catlin,

Catlin expressed to Tunnell that he executed his Last Will and Testament at the same time

that Doris Catlin executed her Will, that it was prepared by Self, and that he intended for it

to be his Last Will and Testament. (CR, pg. 348). (RR, Vol. 3, pgs. 8 & 18). Doris Catlin’s

Will left her property in trust to Catlin, and Barnes was the Trustee of that Trust. (CR. Pgs.

230-236).

       Catlin and Barnes had discussions about how the Trust could create administrative

problems with the operation and ownership of the properties. Respondents and Catlin

reached an agreement that all property in the trust of Doris Catlin would be conveyed to

Catlin. In exchange for this conveyance, Catlin agreed that Respondents would receive

almost all of his property at his death. Catlin and the Respondents instructed Tunnell to

                                              5
prepare the conveyance documents from Doris Catlin’s Trust to Catlin. At the time of the

execution of the documents, Catlin discussed his Will and expressed that Respondents would

receive his property upon his death. These discussions were in the presence of Tunnell,

Catlin, and Barnes. (CR, pg. 348). (RR, Vol. 3, pgs. 11-17 & 61-63).

       Tunnell, in his representation of Catlin, prepared corporate documents including stock

certificates of Catlin’s business. Catlin expressed to Tunnell that the stock certificates were

very important to him. (CR, pg. 348). (RR, Vol. 3, pg. 17).

       After the death of Catlin, the Respondents and Tunnell began searching for the

original of Catlin’s Will. Respondents searched his safe deposit box, office, and at his home.

Respondents were unable to locate the original Will of Catlin and other important documents

including original title documents to Catlin’s house, and the stock certificates for Catlin’s

business. (CR, pg. 348). (RR, Vol. 3, pgs. 22-24, 66-72, & 91-92). Barnes and Tunnell

expressed the belief that the original Will was not destroyed, but it is located with the other

important documents and has not yet been located. (RR, Vol. 3, pgs. 28, 68-69, 108-109).

       Respondent Barnes, is named in the Will as Independent Executor; the Will exempts

Barnes from the requirements of giving bond or other securities; Barnes is qualified and is

not disqualified to receive Letters Testamentary; Barnes is willing to accept the obligations

of the Estate and qualify according to law. (CR, pgs. 9 & 349). The Will states in paragraph

2.1 that certain items of personal property are bequeathed to Doris Catlin, if Doris Catlin

survives Catlin. If Doris Catlin does not survive Catlin, the Will provides that the items of

personal property described in paragraph 2.1 shall “become a part of that property devised

                                              6
and bequeathed by subpart 2.3 of this section of my Will.” Paragraph 2.3 of the Will also

referred to as subpart 2.3, devises and bequeaths “all of the rest and residue and remainder

of my property and estate, real and personal...to the Trustee or Trustees hereinafter named

in Section III of my Will, to be held, administered, and distributed as provided in such

section.” Section III of the Will establishes the Jerry Don Catlin Trust and appoints

Respondent Barnes, as Trustee. The income of the Trust, after the payment of expenses for

the management of the Trust, is to be distributed in equal shares by the Trustee, to Doris

Catlin and the Respondents in this suit under paragraph 3.1(4) of the Will. Paragraph 3.1(7)

states that the Trust shall terminate upon the death of Doris Catlin. Paragraph 3.1(8) states

that upon termination of the Trust, “all of the property and assets of the Trust, including

income then on hand and undistributed, shall belong and be delivered to Jimmy Wayne

Barnes, Diane Marie King, and Douglas Glen Barnes, in equal shares.” Paragraph 3.2 states

that if an interest in the Estate of Jerry Don Catlin vests in one or more of the persons named

in paragraph 3.1(8) when the person is under the age of 25, a separate Trust is created for the

beneficiary. (CR, pgs. 183 & 350). Catlin made provision in the Will for the disposal of

property in the Trust upon termination by way of the language provided in paragraph 3.1(8)

of the Will. The Will makes a bequest of one-tenth of the rest, residue, and remainder of the

Estate to Petitioner in paragraph 2.2. (CR, pg. 183 & 350).

       The Trial Court made the following conclusions of law in support of its Judgment:

       1.     The Court has jurisdiction and venue over the Estate and
              proceeding and every citation required by law has been issued,
              served, and returned in the manner and for the length of time

                                              7
     required by law. (CR, pgs. 350-351).

2.   The Will, the subject of this proceeding, was executed with the
     formalities and solemnities and under the circumstances
     required by law to make it a valid Will. (CR, pgs. 350-351).

3.   The Will in this cause is admitted to probate of record as the
     Last Will and Testament of Jerry Don Catlin. (CR, pgs. 350-
     351).

4.   Respondent Barnes is qualified, and otherwise not disqualified,
     to serve as Independent Executor of the Estate, and Barnes is
     appointed as Independent Executor of the Estate without bond.
     (CR, pgs. 350-351).

5.   A testamentary trust and a Will becomes effective after the
     death of the Settlor and comes into existence pursuant to the
     terms of the Will. (CR, pgs. 350-351).

6.   The assets of a testamentary trust must go through the probate
     process before being placed in a testamentary trust. (CR, pgs.
     350-351).

7.   At the appropriate time in the probate process, the property
     described in paragraph 2.1, along with the rest, residue, and
     remainder of Catlin’s property and Estate (other than that
     devised in paragraph 2.2) will be placed in the Jerry Don Catlin
     Trust. (CR, pgs. 350-351).




                                    8
      8.     The Jerry Don Catlin Trust will then terminate under paragraph
             3.1(7) of the Will because Doris Marie Catlin predeceased
             Catlin.

      9.     Upon termination, the Trustee retains the power necessary to
             wind up the affairs of the Trust or to distribute the Trust
             property in accordance with the terms of the Trust. (CR, pgs.
             350-351).

      10.    On termination of a Trust, the Estate of the Trustee ceases, and
             the legal, as well as the equitable title, vests in the beneficial
             owner without the necessity of any act or intervention on the
             part of the Trustee, unless the intention of the creator appears
             that title should continue in the Trustee. (CR, pgs. 350-351).

      11.    TEX. PROP. CODE, § 112.053 (Vernon, 2007) states that a Settlor
             may provide in the trust instrument how property may or may
             not be disposed of in the event of failure or termination of the
             Trust. (CR, pgs. 350-351).

      12.    Upon termination of the Trust in this case, paragraph 2.3 of the
             Will directs that the Trustee distribute the residuary property
             defined in paragraph 2.3 in the manner described in Section III,
             paragraph 3.1(8). The Trustee, Barnes, will possess the power
             described under TEX. PROP. CODE, § 112.052 (Vernon, 2007) for
             the purpose of distributing the property in the manner mandated
             in paragraph 3.1(8) of the Will. Thus, the bequest to the Trust
             in this case is not a lapsed devise or bequest. (CR, pgs. 350-
             351).

                        SUMMARY OF REPLY ARGUMENT

REPLY TO ISSUE NO. 1:

      The record contains sufficient evidence to justify the Court’s admitting the Will to
probate.




                                             9
REPLY TO ISSUE NO. 2:

       The evidence is sufficient to justify the Court’s judgment that the Testamentary Trust

contained within the Will did not terminate prior to Catlin’s death

      RESPONDENTS’ RESPONSIVE ARGUMENTS AND AUTHORITIES

ISSUE NO. 1:

       To probate a Will that cannot be produced in Court, the Proponent must prove the

same things required for an attested or holographic Will. TEX. PROB. CODE ANN. § 84

(Vernon, 2007). It must also prove: (1) that the Will was duly executed; (2) why the original

Will was not produced, and that the Proponent could not produce it by reasonable diligence,

and (3) the contents of the Will. TEX. PROB. CODE ANN. § 85 (Vernon, 2007); Coulson v.

Sheppard, 700 S.W.2d 336, 337 (Tex. App.-Corpus Christi 1985, no writ). Petitioner’s

sufficiency argument challenges the elements of non-revocation and non-production.

A.     Non-Revocation of the Will.

       The Proponent of the Will is required to meet his or her burden proving the Will has

not been revoked. An original Will’s absence creates a rebuttal presumption of revocation;

but that presumption can be overcome by proof and circumstances contrary to the

presumption or that it was fraudulently destroyed by some other person. TEX. PROB. CODE

ANN. § 88(b)(3) (Vernon, 2007). See also Bailey v. Bailey, 71 S.W.2d 162, 165 (Tex. App.-

Amarillo 1943, no writ). See also In Re Estate of Capps, 154 S.W.3d 242, 245 (Tex. App.-

Texarkana 2005). When a party challenges the sufficiency of the evidence to support a

finding favoring the party who has the burden of proof on that finding, a Court must overrule

                                             10
the challenge if, considering only the evidence and inferences which support the finding in

the light most favorable to the finding and disregarding evidence and inferences to the

contrary, any probative evidence supports it. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d

925, 928 (Tex. 1993). The Trial Court’s Findings of Fact after a bench trial are reviewable

for legal and factual sufficiency by the standards applied in reviewing the evidence

supporting a jury’s answer. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.

App.-Waco 1997, writ denied).

       The evidence in the record demonstrates that Catlin expressed a justified lack of

affection for Petitioner and had affection for Respondents. This was expressed to Self at the

time of the drafting of the Will and continued to be expressed to Respondents throughout the

period leading up to Catlin’s death. (RR, Vol. 2, pgs. 20-23 & Vol. 3, pgs. 44-47). After

Doris Catlin’s death, Catlin expressed to Tunnell that his Will had been prepared by Self and

that he intended for that to be his Last Will and Testament. (RR, Vol. 3, pgs. 8 & 18). Prior

to the time of his death, Catlin indicated to Tunnell the importance of the stock certificates

for his business. (RR, Vol. 3, pg. 17). In addition to the Will, Respondents have been unable

to locate the stock certificates and the originals of title documents for the Catlins’ home.

(RR, Vol. 3, pgs. 22-24, 66-72, & 91-92). Both Barnes and Tunnell have indicated their

belief that the original of the Will and these important documents are located in the same

place, but have not yet been found. Respondents conveyed property previously owned by

their mother to Catlin. At the time of this conveyance, Catlin indicated to them that they

would receive his property upon his death. (RR, Vol. 3, pgs. 11-17 & 61-63). There is no

                                             11
evidence indicating revocation or destruction of the Will.

       This evidence is sufficient to withstand Petitioner’s non-revocation challenge. Cason

v. Taylor, 51 S.W.3d 397, 407 (Tex. App.-Waco 2001, no pet.); Bryant v. Hamlin, 373

S.W.2d 837, 840 (Tex. Civ. App.-Dallas 1963, writ refused n.r.e.). (Both of these cases stand

for the proposition that testimony of the witness that to her knowledge or belief, the Testator

did not revoke the Will has been held sufficient evidence on non-revocation to support

probate.) See also Sparkman v. Massies Estate, 297 S.W.3d 308 (Tex. Civ. App.-Dallas

1956, writ refused n.r.e.). (Evidence that a Decedent, after execution, recognized the Will’s

continued validity and had continued affection for the chief beneficiary thereunder, without

evidence tending to show the desire to cancel or change the Will, has been held sufficient to

rebut the presumption of revocation of a missing original Will.) See also Griffin v. Griffin,

Tex. App. LEXIS 3720 (Tex. App.-Dallas 2007). (Testator called legal assistant for his

attorney indicating that he wanted to make a Codicil to his Will. Testator did not indicate

he intended to revoke the Will, but that he wanted to add another Codicil.) See also In Re

Estate of Capps, 154 S.W.3d 242. (Testator presented a copy of her original Will to her

church with a direction to put it where it would be safe. Testator had publicly announced her

intentions of leaving her property as set forth in the Will, set up certificates of deposit at the

bank consistent with her statements, and she was the type of person who would have

informed others had she decided to revoke or change her Will).

B.     Petitioner’s Challenge Regarding Non-Production.

       The record indicates that the copy of the Will offered as Trial Exhibit No. 1 is the

                                               12
same document executed by Catlin purporting to be his Last Will and Testament. (RR, Vol.

2, pgs. 24-27, 33-40, & 44-52). Catlin ratified the validity of this same Will in discussions

with Tunnell. Discussions with Tunnell indicated that Catlin executed the Will at the same

time as his wife, and that he intended that document to be his Last Will and Testament. (RR,

Vol. 3, pgs. 8 & 18). Tunnell prepared stock certificates for Catlin’s business. Catlin

indicated that the stock certificates were of “significant importance” to him, and that he was

going to put them in a “safe place.” (RR, Vol. 3, pg. 17). After the death of Catlin,

Respondents and Tunnell searched Catlin’s safe deposit box, his office, and his home. While

Trial Exhibit No. 1 was located within a briefcase in Catlin’s home, the original Will and

other important documents including stock certificates for Catlin’s business and original

documents relating to the title to the Catlins’ home have not been located. Both Tunnell and

Barnes have indicated their belief that these important documents are located with the

original of Catlin’s Will and have not yet been found. (RR, Vol. 3, pgs. 22-24, 28, 66-72,

91-92, & 108-109). There is no evidence that Catlin destroyed or revoked the original Will.

       The cause of the Will’s non-production is that it was located in a “safe place” by

Catlin along with other documents of “significant importance”-- that place being unknown

to those searching for these collective documents. This evidence, along with the substantial

evidence contrary to destruction or revocation, is sufficient to overcome Petitioner’s

non–production challenge. See In Re Estate of Capps, 154 S.W.3d 242, 244. (Evidence that

several weeks after the Will was prepared and signed, Testator provided a photocopy to her

church and directed that it be put in a safe place, that thereafter, Testator made statements in

                                              13
church meetings and arranged her assets in support of the devises made in the Will coupled

with testimony regarding a diligent search for the original was sufficient.) See also In Re

Estate of Turner, 265 S.W.3d 709 (Tex. App.-Eastland 2008); Griffin v. Griffin, 2007 Tex.

App. LEXIS 3720 (Tex. App.-Dallas 2007); In Re Estate of Jones, 197 S.W.3d 894 (Tex.

App.-Beaumont 2006); Brown v. Traylor, 210 S.W.3d 648 (Tex. App.-Houston [1st Dist.]

2006).

         The foregoing evidence and authorities clearly demonstrate competent evidence on

the issues of non-revocation and non-production to support the Court’s Judgment.

ISSUE NO. 2:

         The Court’s Judgment finding that the Testamentary Trust in favor of Respondents

did not lapse is substantiated by sufficient evidence and authorities.

         The evidence in this matter is sufficient to support the Court’s conclusions and

judgments. In this case, Catlin expressed to Self and Barnes a lack of affection for Petitioner

and trust and affection for Respondents. As a result of the existence of this issue, Catlin

expressly directed Self to leave ten percent of his Estate to Petitioner. In compliance with

Catlin’s request, Self drafted the Will admitted to probate to allow ten percent of the rest and

residue Estate to pass to Petitioner and the remainder to Respondents.               This was

accomplished by a Testamentary Trust contained within the Will. (CR, pgs. 12-19). (RR,

Vol. 2, pgs. 20-23 & Vol. 3, pgs. 44-47). The form used by Self was taken from the file

forms of Lucian Morehead, an Estate Attorney well respected by Self. (RR, Vol. 2, pgs. 20-

24).     The Testamentary Trust provides a method for distribution of the property to

                                              14
Respondents on termination of the Trust. (CR, pgs. 12-19).

       Petitioner advances that the bequest of the rest and residue of Catlin’s Estate to the

Testamentary Trust is of no effect.

A.     Catlin’s Intent.

       Catlin expressed intent to Self, and the Will itself makes provisions which resulted in

the bequest of one-tenth of certain property to his “lineal descendant” (Petitioner) and the

remainder to Barnes, Jimmy Barnes, and Diane King. "The cardinal rule for construing a

Will requires that the Testator's intent be ascertained by looking to the provisions of the

instrument, as a whole. If the Testator's intent can be ascertained from the language of the

Will, as a whole, any particular paragraph that would indicate a different intention standing

alone must yield to the intention manifested by the whole Will." Pine v. Salzer, 824 S.W.2d

779, 782 (Tex. App.-Houston [1st Dist.] 1992, no writ). Additionally, "when the language

of a Will is equally open to two constructions, only one of which would make the provision

valid, the construction that would make the Will valid will be adopted." Rekdahl v. Long,

417 S.W.2d 387, 389 (Tex. 1967). The Opponent has additionally advanced the argument

that because the Will is invalid, or its devise lapses that Opponent should inherit under the

laws of intestacy. "The law favors testate over intestate passage of property." The making

of a Will "creates a presumption that the Testator intended to dispose of his or her entire

estate and did not intend to die intestate as to the whole or any part of his or her property."

The presumption against intestacy "is especially strong when a Will contains a residuary

clause." Shriner’s Hosp. etc. v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980). "When the Will

                                              15
contains a residuary clause, it is only in exceptional cases, that is, when the Testator's intent

is clearly expressed in the Will that the subject property not pass under the residuary clause,

that the Court's have upheld a partial intestacy." Bittner v. Bittner, 45 S.W.2d 148, 152

(Comm. App. 1932, Jdgmt. adopted). See also Neiast v. Brauckmuller, 401 S.W.2d 113, 116

(Civ. App.-Houston, 1967, no writ).

       The devise to the Trustee does not lapse. Because a Will only becomes effective upon

the testator’s death, the Testamentary Trust in Catlin’s Will could not have terminated before

it was even created. Shriner’s Hosp. etc. 610 S.W.2d at 151. The assets of a Testamentary

Trust must go through the probate process before being placed in a Testamentary Trust. At

the appropriate time in the probate process, the property described in paragraph 2.1, along

with the rest, residue, and remainder of Catlin’s property and Estate (other than that devised

in paragraph 2.2), will be placed in the Jerry Don Catlin Trust. The Jerry Don Catlin Trust

will then terminate under paragraph 3.1(7) of the Will because Doris Marie Catlin

predeceased Catlin. Catlin made provision in his Will for the disposal of the property in the

Trust upon termination by way of the language set forth in paragraph 3.1(8). TEX. PROP.

CODE, § 112.053 (Vernon, 2007) states that a settlor may provide in the Trust instrument how

property may or may not be disposed of in the event of failure or termination of the Trust.

Upon termination, the Trustee retains the power necessary to wind up the affairs of the Trust

or to distribute the Trust property in accordance with the terms of the Trust. On the

termination of the Trust, the Estate of the Trustee ceases, and the legal, as well as the

equitable title vests in the beneficial owner without the necessity of any act or intervention

                                               16
on the part of the Trustee, unless the intention of the creator appears that title should continue

in the Trustee. Sorrel v. Sorrel, 1 S.W.3d 867, 870-871 (Tex. App.-Corpus Christi 1999, no

writ). See also TEX. PROP. CODE, § 112.052 (Vernon 2007).

       Upon termination of the Trust, paragraph 2.3 of the Will directs that the Trustee

distribute the residuary property defined in paragraph 2.3 in the manner described in Section

III, paragraph 3.1(8). Trustee, Barnes, will possess the power and authority described under

TEX. PROP. CODE, § 112.052 (Vernon, 2007), for the purpose of distributing the property in

the manner mandated in 3.1(8) of the Will. The bequest to the Trust should not, and does not

lapse. Instead, it passes the property of Catlin as intended by him.

                              CONCLUSION AND PRAYER

       As a result of the foregoing, Respondents request that this Court deny the Petition for




                                               17
Review. Respondents request such other and further relief to which they may show

themselves justly entitled.

                                          Respectfully submitted,

                                          LaFONT, FORMBY & HAMILTON, L.L.P.
                                          P. O. Box 1510
                                          Plainview, Texas 79073-1510
                                          Telephone: (806) 293-5361
                                          Facsimile: (806) 293-5366

                                          By: ___________________________________
                                                Brent Hamilton
                                                State Bar No. 00796696

                                          ATTORNEYS FOR RESPONDENTS



                              CERTIFICATE OF SERVICE
       This is to certify that a true and correct copy of the above and foregoing instrument
has been served upon the following this ______ day of July, 2010:

       Wade A. Byrd
       MAYFIELD, CRUTCHER & SHARPEE, L.L.P.
       320 S. Polk, Suite 400
       Amarillo, Texas 79101
       Facsimile: 806-242-0159


                                                 ___________________________________
                                                 Brent Hamilton




                                            18
                            INDEX TO APPENDIX


1.   TEX. PROB. CODE, § 84 (Vernon, 2007)

2.   TEX. PROB. CODE, § 88 (Vernon, 2007)

3.   TEX. PROP. CODE, § 112.052 (Vernon, 2007)

4.   TEX. PROP. CODE, § 112.053 (Vernon, 2007)




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