Netherton v. Cowan, 2013 WL 4091773 (Tex. App.—San Antonio 2013, no pet.).



Construction and Interpretation

Vesting of Interests 


Testator’s will devised Beneficiary a remainder interest in certain real property but if Beneficiary predeceases Testator “or dies before the property * * *  vests in him,” the property passes to Alternate.  Beneficiary died prior to the holder of the life estate.  When the life estate owner died, a dispute arose between Beneficiary’s estate and Alternate over the ownership of the land.


Both the trial and appellate court held that the property was part of Beneficiary’s estate.  The court explained that Texas law favors a construction that results in vesting at the earliest possible time and thus the remainder interest vested in Beneficiary immediately upon Testator’s death.  In addition, the court noted that Testator’s will did not include language requiring the holder of the remainder interest to outlive the life tenant as a condition of the devise.


Moral:  “[W]hen a testator bequeaths [sic] a life estate in property and a remainder interest in the same property, the remainder interest is considered vested upon the death of the testator.”  Id.  Thus, if a testator wants the interest to be contingent on the remainder beneficiary outliving the life tenant, the devise should include express survivorship language.