Interpretation and Construction

Conditional Gift

Martino v. Martino, 35 S.W.3d 252 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).


Testator left a life estate to Spouse with the remainder to his “brothers and sister in equal shares. However, should any of my brothers or sister predecease me, and/or my wife, his or her share of the residue and remainder of my estate, if any, shall devise and descend to his or her child or children.” Brother predeceased Spouse but was not survived by any children. The trial court determined that Brother’s vested remainder was divested when he died without children and that Brother’s share passed to Siblings equally. Brother’s wife appealed alleging that the trial court erroneously implied a condition of survival on Brother’s vested remainder interest.

The appellate court affirmed. The court determined that the gift to “my brothers and sister” was a class gift. Testator did not intend a deceased class member’s portion to pass through the deceased class member’s estate. Instead, Testator provided an alternate gift to the deceased class member’s “child or children.” If this alternate gift could not take place because the deceased class member had no child, then the gift should be divided among the remaining class members or alternate beneficiaries.

Moral: Wills should cover all reasonable contingencies to avoid interpretation issues.