No Apparent Ambiguity – Use of Extrinsic Evidence

San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000).


Testatrix devised certain real property to Niece and Nephew. The probate court ruled that assets related to that real property, such as promissory notes, collections, and net profit interests, were not encompassed by the term “real property” and thus they passed to the residuary beneficiary. The probate court refused to admit extrinsic evidence showing that Testatrix thought of the land, the notes, and the profits as one “investment package” which she meant to pass by the devise to Niece and Nephew. The appellate court in Lang v. San Antonio Area Foundation, 5 S.W.3d 738 (Tex. App.—San Antonio 1999) reversed and held that the probate court should have considered the extrinsic evidence because the evidence created a fact issue regarding Testatrix’s intent.

The Supreme Court of Texas in a unanimous opinion reversed the appellate court and reinstated the probate court’s judgment in favor of the residuary beneficiary. The court held that “extrinsic evidence is not admissible to construe an unambiguous will provision.” San Antonio Area Foundation at *1. The court recognized that evidence of a testator’s situation and the surrounding circumstances may be considered but only if the provision of the will is susceptible to more than one construction. The term “real property” has a settled legal meaning and thus the court may not look beyond the terms of the will to find Testatrix’s intent.

The court also supported its opinion by using the Texas contents statute, Probate Code § 58(c). A gift of real property does not include any personal property located on or associated with the real property unless the will specifically provides for inclusion. Testatrix’s will did not so provide and thus associated personal property is not included with the devise of real property.

Moral: Extrinsic evidence may not be used to create an ambiguity if the language has a settled legal meaning. The term “real property” is one such term. It is uncertain, however, which other terms the court will deem to have a settled legal meaning vis-à-vis terms that are susceptible to more than one construction. Accordingly, a will drafter must still be careful in selecting will language to make certain the testator’s intent is carried out.




San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000).


Testatrix specifically devised certain real property to Niece and Nephew. After executing the will, Testatrix sold portions of the real property in exchange for real estate lien notes, promissory notes, cash, and net-profit agreements. The Supreme Court of Texas determined that partial ademption occurred and thus Niece and Nephew were not entitled to trace into the proceeds of the real property. The proceeds passed to the remainder beneficiary. The court recognized that the doctrine of ademption may be harsh in some circumstances but that the doctrine is well-established in Texas law and can easily be avoid by including the proper language in the will.

Moral: A testator who does not want ademption of a specific gift to occur must expressly provide otherwise in the will.