(3) The DeWitts' current petition sought partition, accounting, and distribution of the estate a declaratory judgment to construe the will and removal of Shore as the independent executor. These parties are before this Court for the third time. The trial court erred in assessing fees, and remand on this issue is required. We conclude the trial court properly exercised jurisdiction over this probate matter and essentially entered a proper declaratory judgment, which requires only slight modification. Shore, individually, raises three additional issues: (1) violation of Rule 301-judgment inconsistent with the pleadings, evidence, and verdict (2) improper withdrawal of the surface estate from the jury and (3) improper attorney's fees. The Shores, jointly, raise one issue: lack of jurisdiction. Shore and his son, Brenham (2) (collectively, the Shores) appeal. (1) After a jury trial, the judge declared the DeWitts to have prevailed, detailed the contours of the paragraph 6(3) conveyance, and assessed attorney's fees against Shore, individually. The DeWitts asked the court to declare which interest(s) passed under paragraph 6(3) and which under the residuary clause (devising everything remaining to the DeWitts). DeWitt, and Marlo DeWitt Senick (the DeWitts). Bennett Survey." William Shore is both the independent executor and a devisee of his great-aunt Bean's estate. Bennett Survey." The current dispute arose because Bean did not expressly own "80 acres in the J. Paragraph 6(3) of Bean's will devises "the eighty (80) acres I own in the J. This is an appeal from a judgment on a jury verdict construing Mary Ann Bean's will. Sixth Appellate District of Texas at Texarkanaīefore Morriss, C.J., Ross and Carter, JJ.
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