¶1dissenting.
¶2I respectfully dissent. While the will in question is poorly drafted, I do not believe it is ambiguous. Mattie’s will left “all of my property ... to my six children, viz: [naming them] and to the survivor or survivors of them at the time of my death, share and share alike_” Logically, the word “them” refers to Mattie’s six named children, and “survivor or survivors ... at the time of my death” cannot have any legal significance but that Mattie intended only the named children who survived her to take under the will. Otherwise, “surviv- or(s)” could conceivably include grandchildren, spouses, etc. See Gregg v. Jones, 699 S.W.2d 378, 379 (Tex.App.—San Antonio 1985, writ ref’d n.r.e.) (rejecting interpretation of “survivors” synonymous with “heirs”).
¶3I further dissent on procedural grounds from the court’s decision to reverse the summary judgment. The issue of ambiguity was never presented in writing to the trial court and therefore cannot properly be considered on appeal as grounds for reversal. Tex.R.Civ.P. 166a(c). Even if Mattie’s will were ambiguous, the trial court’s action in granting summary judgment surely would not constitute fundamental error.
¶4For the reasons stated, I would affirm the judgment of the court of appeals.
¶5RAY and MAUZY, JJ., join in this dissenting opinion.