Karen Key v. Gwindelin Joyce Metcalf, as Independant of the Estate of Richard Howard Metcalf

Affirmed and Memorandum Opinion filed February 16, 2006 Affirmed and Memorandum Opinion filed February 16, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-00782-CV ____________ KAREN KEY, Appellant V. GWINDELIN J. METCALF, INDEPENDENT EXECUTRIX OF THE ESTATE OF RICHARD METCALF, DECEASED, Appellee On Appeal from the County Court at Law No. 3 & Probate Court Brazoria County, Texas Trial Court Cause No. 25,817 M E M O R A N D U M   O P I N I O N Appellant, Karen Key, appeals the trial court=s declaratory judgment entered in favor of appellee, Gwindelin Metcalf, Independent Executor of the Estate of Richard Metcalf, Deceased. We affirm. The testator, Richard Metcalf, died on November 9, 2001. Richard appointed his surviving wife, Gwindelin Metcalf, executor of his estate. Karen Key is Richard=s only living child. Richard bequeathed $350,000 to seven individuals and entities under his will. He bequeathed $150,000 each to Karen and Gwindelin, as well as $10,000 each to his grandsons, Mark Poe, Mike Poe, and Jeffrey Wiggins; to his niece, Lynn Rupprecht; and to the First Church of Christ Scientist in Pasadena, Texas. Richard also bequeathed to Gwindelin five gold coins, gem stones, a doll collection, all stock which he Acollectively refer[s] to as my baby bells stock,@ and all his separate and community estate, except as disposed of elsewhere in the will. Karen filed a declaratory judgment action, complaining of Gwindelin=s refusal, as executor, to pay her the $150,000 bequest made to her in Richard=s will and seeking a declaration that the $150,000 bequest to her found in Section 3.2 of the will is a general bequest to be satisfied from the general assets of Richard=s estate. Gwindelin asserted in a brief to the trial court that there were not enough assets in Richard=s estate to satisfy the cash bequests and the Amaximum value@ of the estate was $217,135.00. In her role as executor, Gwindelin determined that any cash gifts should be made only from cash assets or demand deposits on a pro rata basis. According to Karen=s appellate brief, the trial court heard oral arguments on her petition. However, no reporter=s record was taken of the hearing. The trial court entered a take-nothing judgment against Karen on her demand that she be paid $150,000 out of the assets of the estate, but also stated its ruling did not prejudice any rights Karen may have to receive distributions under the will. The trial court also held the $10,000 cash bequest to First Church of Christ Scientist had lapsed because the church no longer exists. Neither party requested findings of fact and conclusions of law. On appeal, Karen complains the trial erred in entering judgment in favor of Gwindelin on the ground that Gwindelin=s interpretation of the will is final and not subject to the court=s review. In entering its judgment, the trial court determined that because the will left questions of will construction to the executor, it was not necessary for it to review the executor=s construction of the will: On the request to construe the will, the Court finds and Declares that the will is clear on its face, that the will sufficiently specifies and delineates the rights of the parties, and that section 11.4 of the will clearly expresses the intent of the testator in regards to questions of construction so that no further action to construe the will is necessary. Section 11.4 of Richard=s will provided that the executor=s interpretation of the will is not subject to court review and such interpretations are binding on all beneficiaries under the will: All doubtful questions of construction in the interpretation of this, my Last Will and Testament, shall be finally and conclusively determined by the executor or Trustee appointed herein, whichever is acting, according to his best judgment, without recourse to the Courts, and such determination shall be binding on all beneficiaries hereunder both in being and unborn. Will provisions making the executor=s decision on disputed questions regarding the will=s construction binding on all interested parties are valid. Nations v. Ulmer, 139 S.W.2d 352, 356 (Tex. Civ. App.CEl Paso 1940, writ dism=d); Grant v. Stephens, 200 S.W. 893, 896 (Tex. Civ. App.CFort Worth 1917, writ ref=d); Couts v. Holland, 48 Tex. Civ. App. 476, 107 S.W. 913, 916 (1908, writ ref=d). Such decisions by the executor, if fairly and honestly made and reasonably susceptible to the terms of the will, are binding and final on all interested parties. Nations, 139 S.W.2d at 356; Grant, 200 S.W. at 896; Couts, 107 S.W. at 916. However, a gross departure from the testator=s intent cannot be considered an honest endeavor by the executor to determine that intent. Pray v. Belt, 26 U.S. (1 Pet.) 670, 680 (1828); Grant, 200 S.W. at 896. The executor=s construction of the will is subject to court review A[i]f an unreasonable use be made of the power, one not foreseen, and which could not be intended by the testator, . . .@ Pray, 26 U.S. (1 Pet.) at 680. Karen asserts it was Richard=s intent that her $150,000 gift be satisfied out of the general assets of the estate, i.e., proceeds from the sale of those assets. Karen alleges that Gwindelin=s interpretation of the will is not a fair and honest attempt to ascertain and uphold Richard=s intent, but, instead, is a gross departure from that intent and, thus, subject to judicial review. However, there is no record to support Karen=s assertions of Gwindelin=s allegedly fraudulent intent. Neither party requested that the hearing on Karen=s petition be recorded. Where a reporter=s record is not requested, we presume the missing record supports the court=s ruling. In re Guardianship of Berry, 105 S.W.3d 665, 667 (Tex. App.CBeaumont 2003, no pet.); see also Bryant v. United Shortline, Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998) (AWe indulge every presumption in favor of the trial court=s findings in the absence of a statement of facts.@). Without a reporter=s record of the hearing, Karen has failed to demonstrate there was evidence before the trial court that Gwindelin=s construction of the will is motivated by dishonesty or fraud. Moreover, when neither party requests findings of fact and conclusions of law, it is implied that the trial court made all fact findings necessary to support the judgment. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). Unchallenged findings of fact are binding on the appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding. Zagorski v. Zagorski, 116 S.W.3d 309, 319 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (op. on reh=g). Even if there were a record of the hearing, Karen has not challenged the implied findings of fact that the will gave away more than the estate contained at the time of Richard=s death, i.e., that the estate had a maximum value of $217,135.00 (prior to deducting allowances and expenses) as asserted by Gwindelin, while making cash gifts in a the total amount of $340,000.00,[1] without considering the coins, gems, doll collection, stocks, and the possibility that the will purportedly disposed of Gwindelin=s undivided community property interest without requiring that she make an election. If the court can give a certain legal meaning or interpretation to the words used in the will, the will is unambiguous and the trial court should construe it as a matter of law. Steger v. Muenster Drilling Co., 134 S.W.3d 359, 373 (Tex. App.CFort Worth 2003, pet. denied). In construing a will, the focus is on the testator=s intent. San Antonio Area Found. v. Lang, 35 S.W.3d 636, 639 (Tex. 2000). We review conclusions of law de novo to determine their correctness. City of Houston v. Cotton, 171 S.W.3d 541, 546 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). We will uphold a conclusion of law if it can be sustained on any legal theory supported by the evidence. Id. While Richard may have intended to bequeath $350,000 (less the church=s lapsed gift) in cash, unfortunately, there were not enough assets, either cash or noncash, in the estate to satisfy the entire amount of cash gifts under the will. Richard also intended to give Gwindelin certain noncash items and further purportedly disposed of Gwindelin=s undivided community interest, but apparently did not intend to force her to elect between taking under the will and keeping her community property. Karen insists that the estate should be liquidated to satisfy her $150,000 gift. However, even if the full $217,135 were applied toward the $340,000 cash giftsCwithout taking into account Gwindelin=s undivided community property interest and deductions for allowances and expensesCthat would still leave approximately $123,000 of the cash gifts unsatisfied. Therefore, even if Karen were to receive her full $150,000 gift, a determination of which beneficiaries receive their respective cash gifts would still have to be made. Richard=s will merely designated the gift amounts to each of the beneficiaries without providing a method for calculating actual payments in the event that the estate could not satisfy all those gifts. Accordingly, Gwindelin determined that any cash gifts should be made only from cash assets or demand deposits on a pro rata basis. Given the total amount of the cash gifts and the insufficient assets in the estate to satisfy those gifts, we cannot say Gwindelin=s interpretation of the will is a gross departure from Richard=s intent as found in the will. Because the independent executor=s determination to pay cash gifts with cash assets and demand deposits on a pro-rata basis was honestly and fairly made and reasonably based on the will, the trial court did not err in declining to review Gwindelin=s construction of the will. Therefore, Karen=s sole issue is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed February 16, 2006. Panel consists of Justices Hudson, Frost, and Seymore. [1] Richard=s will provided for $350,000 in cash gifts, but because the First Church of Christ Scientist in Pasadena no longer exists, the trial court determined the $10,000 gift to the church had lapsed.