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