Archer v. Moody, 544 S.W.3d 413 (Tex. App.—Houston [14th Dist.] 2017, pet. filed).




Upon death of his last grandchild, the settlor provided for the property to be distributed “in equal shares per stirpes” to the settlor’s then living great-grandchildren and surviving issue of his deceased great-grandchildren. When the last of the three grandchildren died and the trust terminated, a dispute arose regarding how to distribute the property – does each great-grandchild receive an equal share (per capita) or do the great-grandchildren divide the share his or her parent would have received (per stirpes)? This difference is important because the grandchildren had different numbers of children (two had two and one had four). The trial court held that each great-grandchild received an equal share (1/8). The great-grandchildren who came from the two children families appealed claiming that they were each entitled to 1/6.


The appellate court reversed. The court determined that the trust instrument was not ambiguous and thus it may ascertain its meaning as a matter of law. The court explained that “per stirpes” contemplates a distribution to the great-grandchildren based on the share of their deceased ancestor. The trial court erred in giving no meaning to the per stirpes language and only focusing on the per capita phrase. The court stated, “We presume the settlor placed nothing superfluous or meaningless in the trust instrument and that the settlor ‘intended very part, sentence, clause, and word to have a meaning and to play a part in the disposition of his property.’”


Moral:  To avoid confusion, a will or trust should not combine terms that could arguably lead to different distributions. Instead, use only one phase, such as “per capita,” “per stirpes,” “per capita with representation,” or “per capita at each generation.” To further reduce potential problems, provide a definition of the term used which explains in a step-by-step format how to make the distribution.