In re Estate of Bean, 206 S.W.3d 749 (Tex. App.—Texarkana 2006, pet. denied).


Construction and Interpretation



Testatrix’s will devised “the eighty (80) acres I own in the J. Bennett Survey” to Devisee. When Testatrix died, she owned two interests potentially covered by this devise: a surface estate of 77.83 acres and an undivided mineral estate of 85.1 acres. Both of these interests were only partly contained within the Bennett Survey. A dispute arose whether these interests passed to Devisee or to Remainder Beneficiaries.

In a lengthy and highly procedurally grounded opinion, the appellate court determined that the devise unambiguously covered only the mineral estate because later language in the devise referred to a gas well, rather than a surface interest. Because the court determined the devise to be unambiguous, extrinsic evidence could not be used to ascertain Testatrix’s intent. Accordingly, Devisee received the mineral estate and the surface estate passed to Remainder Beneficiaries.

Comment: The court’s conclusion that the devisee was open to only one construction is problematic. In my opinion, the court easily could have determined that the language referring to the gas well was not an attempt on Testatrix’s part to limit the conveyance to the mineral estate. The number of acres mentioned in the devise (80) is closer to the true size of the surface interest (77.83) than the mineral estate (85.1).

Moral: Specific gifts should be carefully and precisely described.


Estate Administration

Independent Administration

Ability of Court to Construe Will


A dispute arose over the proper construction of Testatrix’s will. The appellate court held that the trial court had jurisdiction to construe the will even though the estate was being independently administered. The court rejected the assertion that the court lacked jurisdiction under Probate Code § 145(h) because the code does not “specifically and explicitly” provide for a court to have jurisdiction over will construction actions in an independent administration. “Where * * * the meaning of the will itself is unclear, a court must invoke its jurisdiction under Sections 5 and 5A of the Texas Probate Code to determine the proper construction of the will. * * * Once the court construes the will, the independent administrator may then faithfully execute the will, free of judicial supervision, to effect distribution of the estate.” Bean at 757-58.

Moral: A court may construe a will even if the administration is independent.