COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-13-00417-CV

In the Estate of Robert R. Cole, § From the Probate Court Deceased § of Denton County (PR-2009-00804) § January 29, 2015 § Opinion by Justice Gabriel JUDGMENT This court has considered the record on appeal in this case and holds that there was error in part of the trial court’s judgment. It is ordered that the judgment of the trial court is affirmed in part and reversed in part. The trial court correctly determined that whether the will put Judith Cole to an election was a question of law for the court to determine; however, the trial court erred by concluding as a matter of law that Robert R. Cole, Sr.’s will put Judith Cole to such an election. Judith Cole did not contest the will such that the forfeiture clause was triggered; thus, the jury should not have been instructed on Judith Cole’s affirmative defense. However, because Judith Cole did not contest the will under the forfeiture clause, the submission of the affirmative defense was harmless. The evidence sufficiently supported the jury’s finding that the repairs and improvements to the homestead were not capital improvements subject to reimbursement. These holdings, taken as a whole, result in our conclusion that the trial court’s judgment must be reversed in part, and we render a judgment for Judith Cole awarding her one-half of the shares in the investment account that were not determined to be Robert R. Cole, Sr.’s separate property. We affirm the remainder of the trial court’s judgment. See Tex. R. App. P. 43.2(a), (c).

It is further ordered that all parties shall bear their own costs of this appeal, for which let execution issue.

SECOND DISTRICT COURT OF APPEALS

By /s/ Lee Gabriel Justice Lee Gabriel