Ambiguity – Patent

Harris v. Hines, 137 S.W.3d 898 (Tex. App.—Texarkana 2004, no pet.).


Testatrix’s will devised specific real property owned jointly with her husband. Prior to her death, Testatrix and her husband sold this property and received a promissory note in exchange. A dispute arose as to whether the devise adeemed. The trial court held that the gift was not ambiguous and did not adeem because the gift included the phrase “together with all additions thereto and substitutions therefor.” The court determined that this language specifically provided for the proceeds of the sale of the property to pass to the devisees and thus they were entitled to Testatrix’s one-half interest in the promissory note.

On appeal, the court began its lengthy analysis by determining that the devise is reasonably susceptible to more than one meaning. The court recognized that there are reasonable arguments for both inclusion and exclusion of the proceeds from the devise. The will does not provide a clear indication of whether Testatrix intended to include the proceeds from the possible future sale of the property in the devise. Accordingly, the court determined that this ambiguity is patent because the ambiguity is apparent from reading the will. The court then examined extrinsic evidence to ascertain Testatrix’s intent.

The court studied affidavits from Testatrix’s husband and her attorney. These affidavits made it clear that Testatrix excluded her daughter from the specific devise because she did not want the daughter’s husband to have any control over this real property. Her daughter, however, shared equally with the other children as residuary beneficiaries. Because the real property was no longer in the estate, the reason for excluding this child from the devise no longer existed. In addition, the attorney’s testimony explained that the “substitution” language referred to replacement of personal property included with the devised realty. Consequently, the court held that the sale of the specifically devised property caused an ademption and that the proceeds would pass under the residuary clause of Testatrix’s will.

Moral: Specific gifts need to be carefully worded to avoid ambiguity. In addition, the testator should contemplate possible ademption and the will should be drafted to reflect the testator’s intent.