In Prather v. Callon Petroleum Operating Co., the court of appeals resolved a will construction issue that determined who owned certain mineral interests. No. 11-20-00189-CV, 2022 Tex. App. LEXIS 3200 (Tex. App.—Eastland May 12, 2022, no pet.). The decedent left all of her property equally to her two daughters and then stated: “In the event that one of the beneficiaries in this paragraph is not living at the time of my death, then his or her share shall go to the survivor(s) thereof.” One daughter predeceased the decedent. That daughter’s children believed that they owned half of the decedent’s minerals upon her passing, and signed mineral leases. The other daughter’s children thought that they owned all of the minerals as their mother had survived the decedent. Thereafter, various parties asserted claims regarding these minerals and the interpretation of the will.

The court of appeals stated as follows regarding will construction:

We construe whether a will is unambiguous as a matter of law. Here, the parties to this appeal each assert that Olga’s will is unambiguous—though they advance differing interpretations as to its meaning—and we agree. The “cardinal rule” of will construction is to ascertain the testatrix’s intent and to enforce that intent to the extent the law permits. We look to the instrument’s language, consider its provisions as a whole, and attempt to harmonize them so as to give effect to the will’s overall intent. We focus not on what the testatrix intended to recite, but on the meaning of the words she 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. Where a testatrix’s intent is clear, we need not resort to artificial rules of construction.

Id. The court then turned to the language of the will at issue:

Appellants posit that the phrase “survivors thereof” in Section II means the respective heirs of Margaret and June should either of them predecease Olga. We disagree… In the single paragraph that promulgates Section II of her will, Olga devised all of her property “to my children, [named], to share and share alike.” In the following sentence, she stated: “In the event that one of the beneficiaries in this paragraph is not living at the time of my death, then his or her share shall go to the survivor(s) thereof.” We hold that this provision, in this context, constitutes words of survivorship… We agree with the court’s reasoning in Gregg and reject Appellants’ argument that the terms “survivors” and “heirs” are one in the same. In fact, these terms differ and are not interchangeable… In Section II of her will, the “survivor(s) thereof” phrase that Olga included attached to the property that she devised to Margaret and June. In Section III, Olga also devised her residuary estate, including any lapsed gifts made by the will, to Margaret and June. Despite the designation of identical beneficiaries in each section of her will, Olga did not include any survivorship language in Section III, though it is reasonable to conclude that she was aware of this contingency and chose not to do so. Because Appellants would inherit as June’s heirs under the residuary clause of Section III or because other sections of the will designate Paul Prather as a potential substitute or successor trustee and executor is of no consequence. In this instance, neither scenario changes or precludes the meaning or intent of the last sentence of Section II… Undoubtedly, Olga required survivorship as a condition of either Margaret, June, or both of them taking under Section II of the will. As we have said, the meaning of survivorship is central to the disposition of this appeal. Common sense dictates that a “survivor” is one who remains alive or survives an event; we cannot conceive of a contrary interpretation. Therefore, because only Margaret was surviving at the time of Olga’s death, she alone took Olga’s estate under Section II.

Id.

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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

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]
817.420.8223

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