Hoke v. O’Bryen, 281 S.W.3d 457 (Tex. App.—San Antonio 2007, no pet.).

Interpretation and Construction

Type of Devise


Testator’s will was probated in Illinois but because it dealt with real property in Texas, the Texas court needed to determine the consequences of a gift to Testator’s Wife which provided that the property was “to be hers absolutely forever.” When Wife later died after remarrying with a will leaving all of her property to her new husband, Testator’s children claimed that she had no right to dispose of the Texas land because she had received a fee simple determinable rather than a fee simple devise.

Both the trial and appellate courts rejected the children’s claim. The court held that the absolute language of Wife’s devise was not limited by a later provision in the will which provided that upon the death of the survivor, the property would pass to the children. The court explained that this language cannot be removed from its context, that is, in a simultaneous death provision, and that the general rule of interpretation is that an absolute gift given in clear and decisive terms cannot be cut down by subsequent words unless they are equally clear and decisive.

Moral: To avoid interpretation issues, will language should be carefully drafted so that provisions do not provide a basis for an argument that they are in conflict.