Defeasible Fee Subject to an Executory Limitation

Gutierrez v. Rodriguez, 30 S.W.3d 558 (Tex. App.—Texarkana 2000, no pet.).


Testator’s will devised a certain parcel of real property to Son and Daughter-in-Law. If they should divorce, however, Testator provided for the land to pass equally to his eight children. Son and Daughter-in-Law were married when Testator died and the other seven children executed special warranty deeds conveying their interests to them. Son and Daughter-in-Law later divorced and the seven children successfully sued to have their deeds declared null and void due to the occurrence of a condition subsequent (the divorce) so that all of the children would now own the property equally.

The appellate court reversed. The court began by examining the devise and determined that it created a defeasible fee in Son and Daughter-in-Law subject to an executory limitation in all of Testator’s children upon Son and Daughter-in-Law’s divorce. The devise could not be classified as a fee simple subject to a condition subsequent because Testator did not retain the right to reenter and terminate the estate. Instead, that right was devised to Testator’s children.

Once the divorce occurred, the eight children would normally have become the owners of the land. However, in this case, the seven children had already conveyed their interests to Son and Daughter-in-Law. Under the principle of estoppel by deed and the doctrine of after-acquired title, the deeds operated to estop the seven children from making a claim to the property after the divorce. As there was no real issue as to the validity of the deeds, Son and Daughter-in-Law continued to own the property despite their divorce.

Moral: To avoid confusion and litigation, a testator who wishes to impose conditions or limitations on gifts should seriously considering using a trust rather than creating complex future interests.