Roberts v. Wilson 394 S.W.3d 45 (Tex. App.—El Paso 2012, no pet.).



Interpretation and Construction

Outright Gift v. Fee Simple Determinable


Testatrix’s will provided that if a named child died without a descendant, the property devised to that child would pass to his siblings.  The specified child survived Testatrix and died later intestate.  The child’s surviving spouse claimed that Testatrix’s will made an outright gift to her husband so that she would inherit one-half of this property by intestacy while the child’s siblings and their descendants asserted that Testatrix’s devised only a fee simple determinable allowing them to receive the entire property now that the named child has died.


Both the trial and appellate courts held that Testatrix’s devise was outright to the named child.  The statement that “in the event [specified child] dies without child or children or their descendants” referred to the child dying before Testatrix, not thereafter.  The court explained that the devise did not contain language traditionally used to create a defeasible fee such as the term “revert.”  The court referenced Flores v. De Garza, 44 S.W.2d 909 (Tex. Comm’n. App. 1932, judgm’t adopted), and stated:


a provision in a will providing for a devise over to another after the remainderman dies without issue means death prior to the termination of the intervening estate, and that the remainderman is vested with fee simple title at the termination of such prior intervening estate, unless the language of the will discloses a different intent.


Moral:  To avoid this type of claim, clear temporal references should be included when referring to events such as a future death of a beneficiary.