In In re Estate of Moore, a decedent executed a will that provided that the residuary of his estate would be held in trust for his mother, and such trust would terminate on her death with the assets then passing to certain charitable remainder beneficiaries. No. 05-18-00019-CV, 2019 Tex. App. LEXIS 3871 (Tex. App.—Dallas May 14, 2019, no pet. history). The decedent’s mother predeceased him. The decedent’s sole heir then alleged that the trust failed because the sole beneficiary predeceased the decedent and that she should receive the assets. The remainder beneficiaries of the trust alleged that the trust did not fail and that they should receive the assets. The trial court ruled for the charities, and the heir appealed.

The court of appeals first discussed construing a will:

Our primary “objective in construing a will is to discern and effectuate the testat[or]’s intent as reflected in the instrument as a whole.” In doing so, we do not focus on what the testator may have meant to write; rather, we focus on the meaning of the words the testator actually used. We must, however, construe the instrument as a whole and seek to harmonize any apparent conflicts or inconsistencies in the language. Moreover, we should avoid, whenever possible, a construction that results in partial intestacy. Indeed, “[t]he mere making of a will is evidence that the testator had no intent to die intestate and creates a presumption that the testator intended to dispose of his entire estate, and that he did not intend to die intestate as to the whole or any part of his property.” Where, as here, a “will contains a residuary clause, the presumption against intestacy is especially strong.”

Id. The court stated that the appellant’s challenge to the trial court’s construction was based on two arguments: (1) there were no living beneficiaries of the trust at the time of the decedent’s death; and (2) the trust’s creation was made expressly contingent on the decedent’s mother surviving him. The court disagreed with both arguments. The court noted that a trust beneficiary is “a person for whose benefit property is held in trust, regardless of the nature of the interest.” The court stated that the trust provided for two types of property interests—“a life estate for Moore’s mother and remainder interests for the other named individuals and entities.” Id. Regarding the first argument, the court concluded:

Here, Section IV manifests Moore’s intent to create a trust for the benefit of multiple beneficiaries, including his mother and the Arkansas Entities. His mother was intended to be a life beneficiary of the residuary estate, to the extent she survived Moore, and the Arkansas Entities were intended to be beneficiaries with vested interests in the remainder of the residuary estate held in trust following the death of Moore’s mother. Thus, even though the trust’s life beneficiary (Moore’s mother) was no longer living at the time the conveyance became operative, there were other named remainder beneficiaries sufficient to prevent the trust from failing.

Id. Regarding the second argument, the court held:

Section IV provides: “My residuary estate shall pass and vest in the Trustee hereinafter named, IN TRUST, in the following manner . . . .” This statement is not qualified by a condition precedent; rather, it is the subsequent statement creating Moore’s mother’s interest in the trust that is qualified by a condition precedent: “My residuary estate shall be held as a trust for the benefit of my mother, . . . if she is surviving at the time of my death[.]” Because Moore’s mother did not survive him, the condition precedent to her interest was not satisfied. Thus, her interest in the trust terminated, and the remainder interests either became present interests or became closer to present interests.

Id. The court concluded:

The will explains what must happen upon the death of Moore’s mother: “The trust herein created shall terminate at the death of my said mother, . . . and the trust estate shall be distributed as follows . . . .” On Moore’s death, the residuary estate passed into a trust for the benefit of its life and remainder beneficiaries. Because the life beneficiary was no longer living, the trust immediately terminated according to its own terms, leaving the corpus to be distributed to the remainder beneficiaries. The probate court did not err by concluding that Moore’s residuary estate passed into a valid trust and that it should be distributed according to Section IV.C.4 of the will.