In Stephens v. Beard, a husband shot his wife, who died immediately, and then shot himself.  He died hours later in the hospital. No. 12-13-00160-CV, 2014 Tex. App. LEXIS 3895 (Tex. App.—Tyler April 10, 2014), rev’d, No. 14-0406, 2016 Tex. LEXIS 219 (Tex. March 18, 2016). Their wills provided for nine cash bequests if they died in a common disaster or under circumstances making it impossible to determine who died first. The executrix claimed that the nine specific bequests were not triggered because she could tell who died first and it was not a common disaster. The court of appeals, disagreed, holding that it was a common disaster: “the shots were fired in one episode, which is a common disaster in spite of the fact that [husband] did not successfully kill himself immediately.” Id.

 The Texas Supreme Court reversed the court of appeals. Stephens, 2016 Tex. LEXIS 219. The Court stated the following regarding construing a will:

 In construing a will, our focus is on the testator’s intent, which is “ascertained by looking to the provisions of the instrument as a whole, as set forth within the four corners of the instrument.” Thus, “[t]he court should focus not on ‘what the [testator] intended to write, but the meaning of the words [he] actually used.'” Such words, “whether technical or popular,” are construed “in their plain and usual sense, unless a clear intention to use them in another sense” is present in the instrument. Generally, “[t]he will should be construed so as to give effect to every part of it, if the language is reasonably susceptible of that construction.”

 Id. at * 3. Citing Black’s Law Dictionary, the Court defined the phrase “common disaster” as “[a]n event that causes two or more persons [with related property interests] . . . to die at very nearly the same time, with no way of determining the order of their deaths.” Id. *3-4.  The Court held that the court of appeals erred in crafting its own definition by separately defining the words “common” and “disaster” and combining their separate definitions, which excluded the requirement that it be impossible to determine who died first. The Court noted that the “common disaster” provision is used to ensure orderly distribution when the order of death is uncertain, and absent language establishing a contrary intent, the order of death must be uncertain for the provision to become effective. The Court concluded that: “the Beards intended to use ‘common disaster’ according to its settled legal meaning. Because Vencie died nearly two hours after Melba, their deaths did not trigger the common-disaster provisions in their wills.” As such, the nine cash bequests were not triggered, and those assets remained in the estate to be distributed to others.


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Photo of David Fowler Johnson David Fowler Johnson

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David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law ReviewSt. Mary’s Law JournalSouth Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law