Determinable Fee Simple

Cooley v. Williams, 31 S.W.3d 810 (Tex. App.—Houston [1st Dist.] 2000, no pet.).


Testatrix’s will left her entire estate to “[her] husband * * * and when he dies everything goes to [Granddaughter].” Shortly after Testatrix’s death, Husband died and Granddaughter claimed Testatrix’s remaining property. The trial court determined that Testatrix’s will granted Husband a fee simple absolute and denied Granddaughter’s claim.

The appellate court reversed holding that Testatrix’s will created a determinable fee simple, that is, a fee simple estate in Husband subject to Granddaughter’s executory limitation with the contingency being Husband dying with some of Testatrix’s property. The court construed the gift as if it provided for the “remaining” property (if any) to pass to Granddaughter upon Husband’s death.

The court rejected the argument that Testatrix had granted Husband a life estate and Granddaughter a remainder (disagreeing with the holding in Norris v. Methodist Home, 464 S.W.2d 677 (Tex. Civ. App.—Waco 1971, writ ref’d n.r.e.)). The gift lacked traditional life estate language (e.g., “to Husband for life”). In addition, construing the gift as a determinable fee simple gives meaning to all the words used in the gift (i.e., “and when he dies everything goes to [Granddaughter]”) which would not be the case if the gift were deemed a life estate.

Moral: Will provisions granting less than a fee simple absolute interest must be clearly drafted to avoid construction problems. Other estate planning techniques, especially trusts, may provide a more predictable method of carrying out a testator’s intent.