In re Estate of Hernandez, No. 05-16-01350-CV, 2018 WL 525762 (Tex. App.—Dallas Jan. 24, 2018, no pet.).


Interpretation and Construction

Defeasible Devise


The key issue in the this case what interest Testatrix devised in her will when she said:


The rest and residue of my estate * * * to my husband * * * to do with as he desires. Upon the death of my husband * * *, I give * * * any of the rest and residue of my estate* * *  that he may own or have any interest in to my son * * *.”


After the husband died, a dispute arose over the ownership of the property. The son asserted the husband received a life estate and that he (the son) was the remainder beneficiary and thus he is now the fee owner of the property. On the other hand, the executor of the husband’s estate claimed that the husband received a fee simple absolute in the property. The trial court held that this provision was ambiguous and that the husband received a life estate with the remainder to the son.


The appellate court determined that the provision is unambiguous. The court explained that merely because litigants have different opinions on the meaning of the provision does not make it ambiguous. The court then determined that the trial court was incorrect in finding that the husband received a life estate. The court pointed out that the devise did not use any term traditionally associated with a life estate such as “for life.” Thus, the husband received a fee simple but one that was subject to defeasance, that is, any property remaining after he dies, passes to the son. Accordingly, the court held that the husband received a fee simple determinable and the son an executory interest so that son now owns the remaining property in fee simple absolute.


Moral:  The court did not correctly identify the interest husband received. After the condition is violated in a fee simple determinable, the property returns to the grantor or, if the grantor is deceased, to the grantor’s successors in interest. The grantor retains a possibility of reverter. What the testatrix actually created was a fee simple subject to an executory limitation because upon breach of the condition, the property would divest a prior vested interest and pass to another grantee, that is, the son who holds the executory interest.